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 RffitiS 
 
I 
 
('/ 
 
 ,V^/'£^ 
 
 / V •■ 
 
 / 
 
 PRACTICAL STATUTES 
 
 BKING \ COLLECTION OF STATUTES OF PRACTICAL UTILITY 
 
 » * ; 
 
 IN FORCE IN ONTARIO 
 
 WITH 
 
 NOTES ON THE CONSTRUCTION AND OPERATION THEREOF 
 
 BY 
 
 f 
 
 I 
 
 JAMES BICKNELL 
 
 OF OsGooDE Hall, Barrlsteu-at-Law, 
 
 AND 
 
 ARTHUR JAMES KAPPELE 
 
 OF OsGooDE Hall, Barrister-at-Law, and of the British 
 
 CoLUMHiA Bar. 
 
 TORONTO: 
 (iOODWIN & CO., Law Booksellers and rniLisiiKRS. 
 
 1900. 
 

 ^ 
 
 ^ 
 
 ^::-yo('i 
 
 Entered according to Act of tlie Parliament of C.uiiida in tlie year 1900, by Janifs i!ii knoll, 
 
 at t.lie Department of Agrioultuic. 
 
 WARWICK BROS k RUTTKR, I'rintkhb, 
 TORONTO. 
 
PREFACE. 
 
 The editors lias'e taken those Statutes which, in tlie opitiion of the directors of legal 
 education in this province, are of most concern to the practising solicitor, and have 
 attempted to collect the authorities construing them. Legislation is so replete that there 
 are few subjects of concern which are not aflfocted by some Statute. It may fairly be stated 
 that a knowledge of the Statutes placed on the course of legal education will equip one 
 with almost all practical knowledge requisite for daily practice. 
 
 The task of taking these Statutes and considering the many branches of legal science 
 which they atlect is not a light one. The editors will be satisfied if the profession will find 
 that the system adopted is simple, and that such research as has been made is easily avail- 
 able to even a casual reader. 
 
 It is difficult to pick out from text books dealing with a particular branch of law the 
 def:isions upon such Statutes as relate to those branches. 
 
 Annotations of Statutes have, therefore, in many cases been found to l)e more useful 
 than tey.t books. The danger in annotating is to include too much, making it difficult for 
 the practitioner to put his hand <i lickly upon what he requires. 
 
 In the present work the dtoisions ati'ecting the Statutes iiave been compressed into 
 notes in the aliortest possible space and arranged in a manner which it is hoped will be 
 found to lighten labor. 
 
 Tliere has been no attempt to show the evolution of the law on any particular subject, 
 but it lias been souglit simply to give tiie decisions construing the different enactments. 
 The Statutes are p\il)lishe(l intact, and the editors' work has boon confined to the 
 enfleavor to state what the Courts have said the Statutes mean and what their effect is as a 
 result of the decisions. 
 
 The editors desire to express their thanks to the numy members oi' the bar who have 
 given kindly advice and assistance. 
 
 The index is the work of Mi. .1. H. Huntei', .Tr,, Student-at-law, l.o wiioni tiie editors 
 are much indebted. 
 
 [iii.] 
 
Pr 
 Ta 
 Ta 
 A. 
 
 V 
 
 c 
 
 L 
 S 
 F 
 C 
 
TABLE OF CONTENTS. 
 
 Preface 
 
 Table of ConteiitH 
 Table of Cases . . 
 Additional Notes. 
 
 PART I. 
 
 Conxtniction (mil Operation of Sla/utes. 
 
 Form and Interpretation of the Statutes, R. S. 0. c. 1 
 
 PART II. 
 
 Canadian ConfitiliUional Lair. 
 The British North America Act, 1867, (Imp. Act, 30-31 V. cap. 3). 
 
 PART III. 
 
 Eridmce. 
 
 Witnesses and Evidence, R. 8. O. c. 73 . 
 Canada Evidence Act, .56 V. c. 31 (D.) . . , 
 
 PART IV. 
 
 Torts. 
 
 6S 
 
 LiV)el and Slander, R. S. O. c. 
 
 Seduction, R. S. O. c. 69 
 
 Protection of Public Officers from Vexatious Actions, R. 
 
 Compensation of Workmen for Injuries, R. S. 0. o. 160 
 
 Accidents, Compensation to Families of Persons Killed by, R. f 
 
 S. O. 
 
 88 
 
 S. 0. c. 166 
 
 Supreme Court of .Judicature, R. S. 
 
 County Courts, R. 8. 0. c. 55 
 
 Lunatics, R. S. O. e. 65 
 
 PART V, 
 Practice, and Procedure. 
 51 
 
 Pa(ie. 
 
 iv. 
 
 V. 
 
 vii. 
 xli. 
 
 Replevin, R. S. O. c. 66 
 
 Actions for Dower, R. S. O. c. 67 
 
 Absconding Debtors, R. S. O. c. 79 
 
 Arrest and Imprisonment for Debt, R. S. O. c. 80 
 
 Infants, R. S. O. c. 168 ,• 
 
 An Act respecting the Supreme Court of Ontario and the Judges thereof, 60-61 \ 
 0. 34 (D.) 
 
 PART VI. 
 
 Contracts. 
 
 Limitation of Certain Actions, R. S. 0. c. 72. . 
 
 Powers of Attorney, R. S. 0. c. 116 . . 
 
 Written Promises and Ack vvledgmenta, R. S. O. 
 Master and Servant, R. S. O. . 167, sees. 3-5 (inc.) 
 Interest, 60-61 V. c. 8 (D.) 
 
 ■i»/iii^: 
 
 PART VII. 
 Perxonal, Properly. 
 
 Executions, R. S. O. c. 77, as amended by 62 V. c. 7 V •; ; • • „A tV ii" 
 
 Mortgages and Sates of Personal Property, R. S. 0. c. 148, as amended by 62 V . e. 11. 
 Conditional Sales of Chattels, R S. 0. c. 149 
 
 19 
 
 75 
 99 
 
 109 
 118 
 121 
 133 
 154 
 
 163 
 219 
 238 
 247 
 251 
 257 
 267 
 
 290 
 
 2«i 
 299 
 301 
 310 
 312 
 
 317 
 334 
 360 
 
 [V] 
 
VI. 
 
 (•ONTENTS. 
 
 PART VIII. 
 
 Kquily. 
 
 Voluntary ami B'laiiflulent Conveyances, R. S. 0. c. 115 "'-^a- 
 
 Trustees and Executors, R. S. 0."c. 129, as amended by 62 V. c. \h '• ?.> 
 
 Iin'estrnents by Trustees, R. S. 0. e. 130, as amended by H2 V. c. 33 sqS 
 
 Protection of Persons Acting as Executors and Administrators, R. S.' oVc' 131'. 405 
 
 PART IX. 
 
 Commercial Law. 
 
 Preventmg^ Priority among Execution Creditors, R. S. 0. c. 78, as amemk..! I.y 
 
 Mercantile Amendment ' Act^ R. "«'. 6". 'J.' i4o .' |io 
 
 Bills of Lading, 52 V. c. 30 (D.) J^ 
 
 Assignments and Preferences by Insolvents, R.'s. 6 c "h? tjc 
 
 Contracts relating to Goods entrusted to Agents, R. S. O c 1(50 T-« 
 
 Limited Partnerships, R. S. O. c. ISf . . c, v/. l. ..iu. ... 45 
 
 Registration of Co-partnerships, R. S. 0. c. 152 . Ton 
 
 Wages R. S. O. c. 156, as amended by 62 V. c. 17 ." Iqo 
 
 60 6^"V TToflX^; " .^•^. ^''•'' '" ''""'"'*"' ''y ^* ■^"'' '^^'^- ■-■ »7' m: and 
 
 Banks and Banking, ,33 V.' c. 31 {D. ), sees'. 1,' 2,' '^'i-n.'.'. ..'.".'...'...' \\']][[ " f^g 
 
 PART X. 
 
 Befil- P'-nverty. 
 
 Mortmain and Charitable Uses, R. S. c ll'> 
 
 Transfer of Property, R. S. O. c. 119.. " 'ill 
 
 Mortgages of Real Estate, R. S. 0. c. 121 -A',' 
 
 Devolution of Estates, R. S. c 127 '' 
 
 Wills, R. S. O: c. 128 .".'.'.'.'. 1,'- 
 
 Limitations of Actions in respect to Real Property, R. S. O c 'l'33 !--n 
 
 Evidence between Vendor and Purchaser, R. S. 0. c. 134 ' ral 
 
 Registration oi Instruments relating to Lands, R. S. O. '^.^ l36,' as ameniled V.y 
 
 Property of Married Women, R. "s. O. C 163 -o!! 
 
 Right to Dower, R. S. 0. c. 164 L^^ 
 
 Conveyancesby Married Women, R. S. 6. c.' 165 -„!! 
 
 Law of Landlord and Tenant, R. S. O. c. 170 i !,. 
 
 Overholding Tenants, R. S. O. c. 171 '.'.'.'.'.'.'..'. o, 
 
 STATUTE OF lSs»9. 
 
 Compensation to W orknien, 1899, 62 V. c. 18 030 
 
TABLE OF CASES. 
 
 A. 
 
 A. K., Re, 285, 286. 
 
 Abbott V. Jletcalfe, 610. 
 
 Abbott V. Richards, 330. 
 
 Abell V. Morrison, 761, 763. 
 
 Abergavenny, Earl of v. Brace, 677. 
 
 Abernethy v. McPherson, 120. 
 
 Abraham v. Abraham, 467, 762. 
 
 Abraham v. Hacking, 783. 
 
 Abratli v. North Eastern Ry. Co., 129. 
 
 Accountant Supreme Court v. Marcon, 334. 
 
 Ackroyd v. Smith, 687. 
 
 Acocks V. Phillips, 823. 
 
 A'Court V. Cross, 307. 
 
 Acraman v. Corbett, 371. 
 
 Adams, Re, 389. 
 
 Adams v. Ackland, 267, 277. 
 
 Adams v. Batty, 94. 
 
 Adams v. British & Foreign Stcfimship Co., 
 
 166. 
 Adams v. Gamble, 783. 
 Adams v. Loomis, 779, 780. 
 Adame's Trusts, Re, 781. 
 Aday, Re, 245. 
 Aday v. Deputy Master of Trinity House, 
 
 235. 
 Administrator-General of Januiica v. Las- 
 
 celles 464. 
 Agar-El'lis, Re, 288, 289. 
 Agency Co. v. Short, 673. 
 Agg-(iardner, Re, 697. 
 Agnew V. Jobson, 130. 
 Anern v. Bellman, 827. 
 Ahrens v. McGilligat, 16. 
 Ainley v. Balsden, 825. 
 Ainsworth, Re, 648. 
 Airey v. Bower, 636. 
 Airey v. Mitchell, 297. 
 Aitcheson v. Mann, 14. 
 Aitkin v. Newport, 145, 
 Albertsoii, Re, 390. 
 Alcock V. Smith, 543, 346. 
 Alderson v. Elgey, 606. 
 Aldrich v. Aldrich, 94. 
 
 Aldrich v. Canada Permanent Loan Ci'., 610. 
 Alexander v. Barnhill, 788. 
 Alexander v. Jones, 264. 
 Alexander v. Wavell, 463. 
 Allen V, Chisholm, 444. 
 Allen V. Dundas, 407. 
 Allen V. Edinburgh Life Assce. Co., 332, 
 
 3.33, 588. 
 Allerl V. England, 678. 
 Allen V. Hamilton, 95. 
 Allen y. Hanson, .50, 71. 
 Allen V. McQuarrie, 1.30. 
 Allen V. McTavish, 297, 683. 
 Allhusen v. Brooking, 588. 
 Allison, Re, 681. 
 
 AlLsop, Re, 501. 
 AUwright v. Perks, 130. 
 Alway V. Anderson, 830. 
 Amend v. Murphy, 328. 
 Amer v. Rogers, 786. 
 Amiss, Re, 649. 
 Amos V. Duffy, 146, 152. 
 
 [ 
 
 Amstell V. Alexander, 96. 
 
 Anderson v. Anderson, 652. 
 
 Anderson v. Dougall, .597. 
 
 Anderson v. Glass, 466. 
 
 Anderson v. Hamilton, 249. 
 
 Anderson v. Lady Hay, 781. 
 
 Anderson v. Rannie, 119. 
 
 Anderson v. Sanderson, 306. 
 
 Andrews, Re, 288, 356. 
 
 Andrews v. Chapman, 116. 
 
 Antlrews v. Motley, 630. 
 
 Andrews v. Salt, 288. 
 
 Anglin v. Township of Kingston, 557. 
 
 Anglo-Canadian Music Publishers v. Suck- 
 ling, 56. 
 
 Angus V. Smith, 96. 
 
 Ann, Re, Wilson v. Ann, 784. 
 
 Annandale, Ex parte, 246. 
 
 Anon, 243, 244, 397. 
 
 Anonymous, 243, 244. 
 
 Anstee, Re, 244, 646. 
 
 Anstee v. Nelmo, 676. 
 
 Anthony, Re, Anthony v. Anthony, 638. 
 
 Applebee Re, 654. 
 
 Applegath v. Graham, 130, 249. 
 
 Appleton V. Lepper, 128, 129. 
 
 Arbib and Class, Re, 696. 
 
 Archbold v. Bldg. & Loan Assn., 609. 
 
 Archer, Re, 647. 
 
 Archer v. Leonard, .306. 
 
 Archer v. Severn, 387, 398. 
 
 Archibald v. McLaren, 129. 
 
 Arden v. Goodacre, 278. 
 
 iVrkwright v. Gell, 686, 687. 
 
 Armstrong, Re, 782. 
 
 Armstrong v. Harrison, 587. 
 
 Armstrong v. Lye, 761. 
 
 Armstrong v. McCutcheon, 66. 
 
 Armswortn v. The South Eastern Ry. Co., 
 157. 
 
 Arnold v. Cheque Bank, 480. 
 
 Arnold v. Cummer, 679. 
 
 Arnold v. Higgins, 249. 
 
 Arnold v. Playter, 363, 364. 
 
 Arnold v. Robertson, 356. 
 
 Arnsby, Ex parte, 96. 
 
 Arscott V. Lillej, 129, 1.32. 
 
 Arthur, Re, 648. 
 
 Arthur v. Grand Trunk Ry., 689. 
 
 Ashlmry v. Ellis, 50, 66. 
 
 Ashley v. Brown, 460, 463. 
 
 Ash worth v. Outram, 781. 
 
 Aspinalls and Powell, Re, 697, 698. 
 
 vii. ] 
 
VUl. 
 
 TABLE OF CASFS. 
 
 Astlmry v. Heiisle^', 388. 
 
 Astley V. Essex, 084. 
 
 Aston V. Iiinis, 764. 
 
 Aston V. Perkcs, 131. 
 
 .\st()r V. Merrott, .'i"28. 
 
 iVtkinsoii. Re, 244. 
 
 Atkinson v. Morris, (ii)3. 
 
 Atkin.son v. Newcastle Waterworks. 15. 
 
 Ai trill V Piatt, '277. 
 
 Atty-<ieii. V. Bouwens, ,')."i7. 
 
 Atty-(ien. v. ]{ra(;kenl)ury, G'lB. 
 
 Atty-(}en. of British Columbia v. Atty-CJen. 
 
 of Can. (1889)71. 
 Att;.'-Oen, v. Bryant, 97. 
 Att'y-Oen. for Canada v. Atty-dien. for Ont. 
 
 (Ut90)«7, TZ. 
 AttyCien. for Canada v. Atty-<ien. fc. Ont. 
 
 (1894)51, .57, 465, 467. 
 Atty-fJen. for Canada v. Atty-f»en. for Ont. 
 
 (1896)51, 54. 
 Atty-< Jen. for Canada v. Atty-Oen. for Ont. 
 
 (1898) 5.3, .55, 56, 59. 62. 
 Atty-Oen. for Dominion v. Atty-'^Jen. for 
 
 Ont. (1898)59, 65. 
 Atty-(ien. v. Dorking, 689. 
 Atty-Oe.i. V. Flint, 50. 
 Atty-Oen. v. Hitchcock, 96. 
 Atty-(ien. v. Magadalen College, 685. 
 Atty-Oen. v. Mercer, 61, 70. 
 AttV-Oen. of Ont. v. Atty-(Jen. of Uom. 
 
 (f894) 56, .57, 58, 64, 65, 66. 
 Attv-(;en. of Ont. v. Atty-(ien. of Dom. 
 
 (1896) 51, 53. 57, 59, 61, 62, 67, 68, 72. 
 Atty-(ien. of (Quebec v. Queen's Insurance 
 
 Co., 58, 60, 62. 
 Atty-(ien. v. iSkinner's Co., 277. 
 Augers v. Montreal, 55, 60, 62. 
 Austen, Re, 650. 
 Austin V. Austin, 289. 
 Austin V. Llewelyn, 677. 
 Aveson v. Kinnaird, 94. 
 Axford, Re, 287. 
 Aj'ers V. Soutli Australian Banking Co., 
 
 558, 559. 
 Ayerst v. McClean, 606, 797. 
 Aylesford v. Oi-eat Western Ry. Co., 787. 
 Aylesford (Earl) \. Morris, 592. 
 Aynsley v. Olover, 687, 69>0. 
 Ayotte V. Boucher, 291. 
 Ayr Aniei'icau IHough Co. v. W^allace, 545. 
 Ayres, Re, 787. 
 Ayres v. Bull, 148. 
 Ayton V. Bowles, 306. 
 
 B. 
 
 Babbage v. Babbage, 94. 
 Baby v. Ro.ss, 781. 
 Backus V. Smith, 686, 688. 
 Bacon v. Dawes, 147, 149. 
 Bacon v. Rice Lewis & Co., 352, 354. 
 Badcock, Re, 246. 
 Badcock v. Freeman, 147. 
 Baddeley v. Baddeley, 593. 
 Baddely v. Karl Granville, 151. 
 Badelej- v. Consolidated Bank, 311. 
 Badgerow v. G. T. R., 148, 149, 156. 
 Baggett V. Meux, 778, 785. 
 Bahama Islands, Re, 72. 
 
 Bahen v. Hug!ies, 787. 
 
 Baie des Chaleurs Ry. Co. v. Nantel, 69. 
 
 Bailey, Re, 389, 391. 
 
 Bailey v. Bank of Hamilton, 460. 
 
 Bailey v. ISirkenhcad, 15. 
 
 Bailey v. Frowan, 649. 
 
 Bailey v. Stephens, 687, 688. 
 
 Bailey v. Stevens, 692. 
 
 Baillic V. Dickson, .")4t. 
 
 Baillie v. Inchi((uin, 395. 
 
 Baily V CoUett, .300. 
 
 Bain and Leslie, Re. 678, 697. 
 
 Bain v. Malcolm, 395, 462, 464. 
 
 Baines v. Lumley, 675. 
 
 Baines v. Swainson, 481, 482. 
 
 Baird, Re, 631. 
 
 Baird v. Story, 472. 
 
 Baker, Re, 469. 
 
 Baker v. Atkinson, 824. 
 
 Baker v. Bradlcjy, 785. 
 
 Baker v. Dawbarn, 797. 
 
 Baker v. .Stuart, 6.32. 
 
 Baker V. Whetton, 681. 
 
 Bald V. Thompson, .398. 
 
 Baldey v. I'at-ker, 564. 
 
 Baldwin v. Benjamin, 351. 
 
 Bildwin V. Kingston, 631. 
 
 Baldwin v. Wanzer, 826. 
 
 Balkc, Re, 788. 
 
 Ball V. Goodman, 120. 
 
 Ball V. G. T. R.,2.36. 
 
 Ball V. Tennant, 466, 467. 
 
 Ballard v. D.yson, 688. 
 
 Balsam v. Robinson, 779, 780. 
 
 Bank of British North America v. Clarkson, 
 
 562, 565, 566. 
 Bank of British North America v. Mallor\', 
 
 395. 
 Bank of British North America v. Strong, 
 
 129. 
 Bank of England v. Vagliano, 541. 
 Bank of Hamilton v. Aikin, 266, 430. 
 V. Baine, 265. 
 v. Durrell, 430. 
 V. Halstead, 566. 
 V. Isaacs, 96. 
 V. Noye Mnfg. Co.. .')63, 
 
 56.5. 506. 
 V. Shepherd, 562, 506. 
 V. Tamblyn, 463. 
 V. Little, 5.58. 
 "V. McTavi.';h, 3.30. 
 V. Gilchrist, 2.36. 
 " " V. McWhirter, 560. 
 
 V. Sweeney, .558. 
 Bank of New South Wales v. Owston, 292. 
 Bank of Nova Scotia v. Fish, 543. 
 Bank of Scotland v. Dominion Bank, 546. 
 Bank of Toronto v. Cobourg Ry. Co. , 557, 593. 
 " " v. Lambe, .55, 56, 57, 59, 60. 
 
 " " V. MacDougall, 355, 3.57. 
 
 " " v. Nixon, 496. 
 
 " " V. Perkins, 559. 
 
 Bank of Upper Canada v. Spaiford, 265. 
 Banks v. Robinson, .350, 351. 
 Banner v. Berridge, 305. 
 Banque d'Hochelaga v. Merchants Bank, 500. 
 Banque Jacques Cartier v. Strachan, 540. 
 Barber, Re, Burgess v. Vinnicome, 652 
 
 Bank of Montreal 
 
TAI5LE OF CASES. 
 
 J. v. 
 
 Barber v. Burt, 150. 
 
 Barber v. Crathern, 471. 
 
 Barl)er v. McKay, 76(5. 
 
 Barl)er v. McPherson, 3.")1, 3oti, 357. 
 
 Barber v. Maughan, 357. 
 
 Barber v. Meyerateiii, 441, 442, 443. 
 
 Barela\ , Kx. parte, 349, 354. 
 
 Barclay v. Owen, 083. 
 
 Barclay v. Raiiie, (595. 
 
 Barclay v. Sutton, 250. 
 
 Bariatin.ski, Re, 244, 245. 
 
 Baring v. Corrie, 479. 
 
 Barker, Re, 287. 
 
 Barkci' v. Leeson, 351. 
 
 Barker v. Westover, 78*5. 
 
 Barkworth v. ^'oung, (557 
 
 Barlow V. Teal, 836. 
 
 Barnes v. Bellamy, ;<22. • 
 
 Barnes v. (ilenton, 2w7. 
 
 Barnes v. Jones, 16. 
 
 Barnes v. Metcalf, .308. 
 
 Barnes v. Ward, 160. 
 
 Barnott v. Lucas, 157. 
 
 Barnhart v. Cireenshields, 766. 
 
 Barrack v. McCiiUoch, 779. 
 
 Barraclougb v. (treenough, 98. 
 
 Barrett v. Wiiniipeg, 70. 
 
 Bariington, Re, .396. 
 
 Bartlett v. Smith, 98. 
 
 Lartlett v. Thompson, 837. 
 
 Barton v. Bricknell, 128. 
 
 Bartram v. London Free Press Co. ,117. 
 
 Barwick v. Barwick, 307, 681. 
 
 Barrv v. Rccles, 275. 
 
 Barry V. Mc(irath, 116. 
 
 Bass V. Gregory, 687, 692. 
 
 Batemon v. Brider, 306. 
 
 Bateman v. Faber, 785. 
 
 Bateman v. l^ennington, 649. 
 
 Bateman v. Finder, 307. 
 
 Bates V. Bates, 278. 
 
 Bathgate v. Merchants Bank, 559. 
 
 Batt, Re, Wright v. White, 398. 
 
 Battersea v. Connnrs. of Sewers, 690. 
 
 Battishill v. Reid. 686, 691. 
 
 Bavins v. London South Western Bank, 547. 
 
 Baxcndale v. MeMun-ay, 689. 
 
 Baxter v. Wyman, 147. 
 
 Bayloy v. Great Western Ry. Co., 589. 
 
 Baylis V. Lawrence, 115. 
 
 Beard v. Ketchuni, 306. 
 
 Beanl v. Steele, .55. (54. 
 
 Beaslo\- V. Clarke, 692. 
 
 Beasley v. Roney, 7H8. 
 
 Beasney, Re, 407. 
 
 Beaty v. Fowler, 357. 
 
 Beatv V. Hackett, 2(56. 
 
 Beaty v. Shaw, 592, 608. 
 
 Beatson v. Skine, 97. 
 
 Beattie v. Holmes, 465. 
 
 Beattie v. Wenger, 4(51, 464, 465. 
 
 Beaumont v. Foster, 607. 
 
 Beaupre's Trusts, Re, 781. 
 
 Beavis v. MoOuire, 797. 
 
 Bechcr v. Woods, 560. 
 
 Bechtel v. Street, (592. 
 
 Berhuanaland Exploration Co. v. London 
 Trading Bank. 5.'i7. 
 
 Beck V. Pierce, 787. 
 
 Beckett V. G. T. R., 1.59. 
 
 Beckett v. Manchester Corporation, 1,53. 
 
 Beckett v. Tasker, 784. 
 
 Beddington v. Altee, 589, 
 
 Beecher v. Austin, 352. 
 
 Beemer v. Oliver, 463, 406, 787. 
 
 Beer v. Stroud, 689. 
 
 Beers v. Waterbury, 357. 
 
 Beggan v. McDonald, 889. 
 
 Beigle V. Dake, 681. 
 
 Beirnstein v. Walker, .544. 
 
 Belair v. Buchanan, 117. 
 
 Bellamy v. Badgerow, 798. 
 
 Bellamy, Re, Elder v. Pearson, 778. 
 
 Bellaniv and Metropolitan Board of Works, 
 
 Re, .■592, 588, 697. 
 Bell, Re, 243, 461. 
 Bell v. (Jolding, 674. 
 Bell V. Huglics, 649. 
 Bell, Re, Lake v. Bell 684. 
 Bell V. Ottawa Trust Co., 469. 
 Bell V. Walker, 7(i3. 
 
 Belleville School Trustees v. ( irainger, 70. 
 Benavides v. Hunt, 824. 
 Benedict v. Van Allen, 488. 
 Benfield and .Stevens, Re, (iOti. 
 
 Bennett, Re, 244, 287. 
 Bennett v. Davis, 778. 
 
 Betmctt V. Empire Printing (,o., 117. 
 Bennett v. Pharmaceutical Assn., 64, 67. 
 
 Bennington, Re, 6.32. 
 Bennison v. Cartwright, 691. 
 
 Ponl V. Roberts, 836. 
 
 Bentley v. Rotheram and Kiniworth Local 
 Board of Health, 16. 
 
 Bentley v. Vilnumt, 249. 
 
 Beresford v. Armagh, 788. 
 
 Berkeley's Truht, Re, 398. 
 
 Bernarilin v. North Uutferin, 14. 
 
 Berry v. Berry, 637. 
 
 Berry v. Donovan, 278. 
 
 Berrvnian, Re, 288. 
 
 Bert"v. Gray, 826. 
 
 Bertram v. Pendrv, 356. 
 
 Bertram v. Wiclicote, 589. 
 
 Besant, Re, 288. 
 
 Bes.sela v. Stern, 94. 
 
 Bethel, Re, .306. 
 
 Beven v. London Portland Cement Co. , (579. 
 
 Beverley's case, 243. 
 
 Bew V. Bill, 464. 
 
 Bewley v. Atkinson, 688. 
 
 Beyfus and Masters, Re, 697. 
 
 Bevuon v. Cook, 592. 
 
 Beytttgli V. Casaidy, 690. 
 
 Bibb V. Tlionias, (553. 
 
 Bickerton v. Dakin, 14. 
 
 Bickerton v. Walker, .")87, 611. 
 
 Biggar v. Dickson, .397 
 
 Biggs v. Burnhnm, 119. 
 
 Biggs V. I'rcehold Loan & Savings Co. , 884. 
 
 Bingham v. Bettinson, 3.58, 3.59. 
 
 Bingham and Wriggleworth, Re, (i9(i. 
 
 Birch V. Ridgway, 98. 
 
 Bird V. Defonvilie, 827. 
 
 Bird V. Gammon, .305. 
 
 Bird, Re, Oriental Commercial Bank v. 
 Savin,, .388. 
 
 Birk V. Guy, 308. 
 
X, 
 
 TABLE OF CASES. 
 
 Birkin v. Frith, 309. 
 
 Birmingham, Duilley and District Bunking 
 
 Co. V. Ross, ."iSO. 
 Birmingham v. Malone, 822. 
 Birt, Re, 646. 
 Bishoprick, Re, 287. 
 Bishton v. Nesbitt, 277. 
 Bissell V. Fox, 547. 
 Bissett V. Pearce, 358. 
 Blachfonl v. McHain, 2t)l. 
 Black V. Fountain, 797. 
 Black V. Ontario Wheel Co., 148, 149. 
 Blades V. Free, 300. 
 Blain v. Peaker, 466. 
 Blake v. Midland Ry. Co., 1.56, 157, 159. 
 Blakeley v. ( Jould, 462. 
 Blanchet v. Powells Llantivit Collieries Co., 
 
 444. 
 Blean v. Bleaii, 287. 
 Blong V. Fitzgerald, ()()6, 797. 
 Bluniberg v. Life Interests and Revei'sioiiary 
 
 Securities Corporation, 483, 
 Blumenthal v. Solomon, 276. 
 Blythe v. Fladgate, 388. 
 Bobier and Ontario Investment Co.. Re, 697, 
 
 698, 
 Boddy, Re, 287. 
 Boice V. O'Loane, 297, 683. 
 Bokstal, Re. 430. 
 Bolding V. Lane, 681. 
 Boldrick v. Ryan, 356. 
 Bolkow V. Foster, 95. 
 Boiling V. Hobday, 680. 
 Bolton V. London School Board, 695. 
 Bond V. Conmee, 129, 1.30, 131. 
 Bond V. Toronto Railway Co., 147. 
 Bondy v. Fox, 765. 
 Bonner v. Lyon, 783, 784. 
 Bonsor and Smith, Re, 679. 
 Bonzi V. Stewart, 483. 
 Booth V. Alcock, 590. 
 Booth V. Clive, 189. 
 Booth's Estate, Re, 6.32. 
 Booth and McLean, Re, 697, 
 Booth V, Smith, 591. 
 Bortick v. Head, 152. 
 Borrows v. Ellison, 685. 
 Borton v. Ockford, 98. 
 Boston V. Lelievre, 14. 
 Bott V. Smith, 371. 
 Boucher v. Saiith, 761. 
 Boulcott V. Boulcott, 654. 
 Boulter v. Webster, 757, 158. 
 Boulton V. Blake, 822, 827. 
 Bound V. Lawrence, 145. 
 Bourdin v. (Jreenwood, ,305. 
 Bourgoin v. La Compagine du Ciiemin de 
 
 Fer de Montreal, Ottawa et Occidental 
 
 Ry. Co., 58. 
 Bourke v. Cork & MacToom Ry. Co., I.'jS. 
 Bousteud and Warwick, Re, 698. 
 Boustead v. Whitmore, 780. 
 Bowden, Re, 393 .394. 
 Bowen v. Anderson, 836. 
 Bowen V. Lewis, 657. 
 Bowerman v. Phillips, 430, 461. 
 Bowers v. Flower, 275. 
 Bowes V. Hall and Holland, 488, 4,S9. 
 Bowie, Re., Ex parte Bruoll, 264. 
 
 Bowie V. Rankin, 148. 
 
 Bowlby V. Bell, 562. 
 
 Bowlby V. Woodley, 692. 
 
 Bowles V. Jackson, 650. 
 
 Bown, Re, O'llalloran v. King, 785. 
 
 Bowver v. Woodman, 682. 
 
 Box,' Re, 396. 
 
 Boyd V. Glass, 464. 
 
 Boyd V. Mortimer, 542, 
 
 Boyes v. Cook, 6.56. 
 
 Boyes, Re, Crofton v. Crofton, 541. 
 
 Boynton v. Boyd, .356. 
 
 Boys' VIome v. Lewis, 397, 398. 
 
 Bracken Re, 395. 
 
 Bradburn v. Oreat Western Ry. Co. , 1 59. 
 
 Bradburn v. Morris, 688. 
 
 Bradley v. .Tames, 308. 
 
 Bradley v. Mcintosh, 07. 
 
 Bradshaw v. Duffy, 236. 
 
 Bradshaw v. Lancashire and Yorkshire Ry. 
 
 Co., 152, 1.57. 
 Bradt, Doe d. v. Hodgins, 804. 
 Brady v. Walls, 761. 
 Brail, Re, Ex parte Norton, 465. 
 Branimell v. Lees, 158. 
 Brannigan v. Robinson. 146, 148 
 Brantom v. Criffiths, .351. 
 Braunstein v. Lewis, 783, 784. 
 Bray icy v. Ellis, 461. 
 Bready V. Robertson, 117. 
 Breary, Re, 389. 
 Breed's Will, Re, .396. 
 Breese V. Knox, 461, 462. 
 Brega v. Dickey, 767. 
 Breithaupt v. Marr, 4.30. 
 Brett V. Brett, 651. 
 Brett V. Rogers, 827. 
 Brett V. Smith, 276. 
 Brewers & Malsters Assn. of Ont. v. Atty- 
 
 Gen. for Ont., 59, 60, 62. 
 Brewster, Re, 654. 
 Bridewell HospiUl v. Ward, 690. 
 Bridge, Re, 245. 
 Bridger, Re, Brampton Hospital v. Lewis, 
 
 Bridges v. Ontario Rolling Mills Co., 148. 
 
 Bridges v. Real Estate Loan & Debenture 
 Co., 763. 
 
 Brier, Re, Brier v. fiviaon, .388. 
 
 Briggs V. Evelyn, 129, 1.30. 
 
 Briggs V Semmens, 589. 
 
 Briggs and Spicer, Re, 697. 
 
 Briggs V. Wik-m, ,308, 788. 
 
 Bright V. Walker, 6H6, 688, 689, 692. 
 
 Brigstocke v. Smith, .308. 
 
 Brillinger v. Ambler, 829. 
 
 Bristol and West of England Bank v. Mid- 
 land Ry., Re, 441, 442. 
 
 Britain v. Rossi ter, 311. 
 
 Bntton v. Great Western Cotton Co., 151. 
 
 Britton v. Knight, 782. 
 
 Britton v. Milson, 544. 
 
 British and Canadian Loan and Investment 
 Co. V. Williams, 607. 
 
 British Columbia Mills v. Scott, 148. 
 
 British India Steam Navigation Co. v. Inland 
 Revenue Commissioners, .593. 
 
 Broadbent v. Groves, 658. 
 
 Brock V. Benncss, 680. 
 
'I'AHLE OK CASES. 
 
 XI. 
 
 Brown 
 Brown 
 Brown 
 Brown 
 Brown 
 Brown 
 
 Brock V. Ruttan, 328. 
 
 Brocklehurst v. Law, 470. 
 
 Brodie v. Ruttan, 351. 
 
 Bromley v. Cavendish Spinning Co., 147. 
 
 Bromley v. Holland, 300. 
 
 Brook V. Evans, 116. 
 
 Brooke v. Gibson, 679. 
 
 Brooke v. Ramsden, 152. 
 
 Broonifield v. Williams, 690. 
 
 Bropliv V. Atty-Gen. of Manitoba, 70. 
 
 Bro.'s.s V. Huber, 130, 132. 
 
 Brewer v. Canada Permanent, 763. 
 
 Brown v. Alabaster, 589. 
 
 Brown V. Brown, 04. 
 
 Brown v. Cooking, 234. 
 
 Brown's E 'tate, Ro, Brown v. Brown, 297. 
 
 Brown v. (irove, 466. 
 
 Harper, 309. 
 
 Ha>vke8, 129. 
 
 Hose, 235. 
 
 McAdani, 235. 
 
 McLean, 765. 
 
 McNab, 573. 
 Brown v. Penott, 329. 
 Brown v. Powell Coal Co. , 443. 
 Brown v. Winning, 787. 
 Brown v. Zininierman, 249. 
 Browne, Ke, 288, 289. 
 Browne v. Hammond, 657. 
 Browne v. Lockliart, 609. 
 Bruce v. McLay, 767. 
 Bniere, Re, 246. 
 Bruges, Re, 244. 
 
 Brunnell v. C. P. R., 149, 150, 156. 
 Bryan v. Cowdal, 674. 
 Bryant and Barningham, Re, 698. 
 Brvant v. La Banque do Peuple 542, 558. 
 Brvant v. Lefever, 687, 689. 
 Brydges v. Plumtree, 308. 
 Bryan, Re, Williams v. Mitchell 656. 
 Bryson v. Ontario anrl Quebec Ry. (Jo. , 780. 
 Bncknani v. Stewart, 683. 
 Buck V. Hunter, 131. 
 Buel v. Ford, (592. 
 Buell v. Read, 688. 
 Building and Loan Assn. 
 
 Bullock, Re. 244. 
 Bullock V. Bennett, 655. 
 Buhner v. Buhner, 160. 
 Bunker v. Midland Ry. Co., 149. 
 Bunton v. Williams, 266. 
 Bm'ke v. Henoy, 363. 
 Burland v. Lee, 149. 
 Burlcy V. Betlnnie, 129. 
 Burn V. Burn, 95. 
 Burnaby v. Bailie, 94. 
 Burnett v. McBean, 349. 
 Burnham v. Garvey, 6!K). 
 Burns v. McAdam, 804. 
 Burns v. McKaj', 460. 
 Burns v. Wilson, 460, 463, 464. 
 Burr V. Monroe, 249. 
 Burritt v. Burritt, 388. 
 Burrough's case, 824. 
 Burroughs and Lynn, Re, 696, 
 Burroughs v. McCreight, 680. 
 Burrows v. Walls, .387. 
 
 Carswell, 606. 
 Pa'mer, 463. 
 Poaps, 676, 763. 
 
 Bursill V. Tanner, 787. 
 
 Burton v. Barchu', 823. 
 
 Burton v. Bellhouse, 3.">0. 
 
 Burwell v. London Free Press Co., 116. S28. 
 
 Bury v. Thompson, 827. 
 
 Buafield, Re, 696. 
 
 Bush v. Fry, 479, 481. 
 
 Bush v. Pinlott, 249. 
 
 feushnell v. Moss, Re, 236. 
 
 Buskin, Re, 305. 
 
 Buskin v. Edmonds, 824. 
 
 Butcher v. Stead, 463. 
 
 Butler v. Birnbaum, 148. 
 
 Butler, Ex parte, 501. 
 
 Butler V. Afjlewhito, 264. 
 
 Butler V. Butler, 404, 656, 784. 
 
 Butler V. Rosenfcldt, 27(). 
 
 Byers v. McMillan, 250. 
 
 Byles V. Cox, 647. 
 
 c. 
 
 C's Settlement, Re, 78."). 
 
 Calm V. Pocketts Bristol Cliannel I'acket 
 
 Co., 441. 
 Cahuac v. Cochrane, 681. 
 Calcutt V. Ruttan, 278. 
 Calder v. Halkct, 129. 
 Caldwell, Re, .396. 
 Caldwell v. Mills, 147, 14S. 
 Callender v. Lagos, 7 1 . 
 Callicott, Re, 287. 
 Calvert V. Black, 707. 
 Calvert v. .Moggs, 131. 
 Calywold, Re, 652. 
 Cameron v. Bethune, 397. 
 Cameron v. Cusack, 463. 
 Cameron v. (iibson, 607. 
 Cameron v. Heighs, 787. 
 Cameron v. Kerr, 560. 
 Cameron, Re, Mason v. Cameron, 395. 
 Cameron v. Wait, 14. 
 Cameron v. Walker, 677, 780. 
 Cannnell v. Sewell, 352. 
 Campbell, Ex parte, 16. 
 Campbell v. Baxter, 823, 828. 
 Campbell v. Dunn, 288. 
 Campbell V. Hally, 470, 471. 
 Campliell v. Roche, 371, 460, 463. 
 Campbell V. Royal Canatlian Bank, 79". 
 Campbell v. Wilson, 686. 
 Campbell v. Young, 689. 
 Canada Atlantic Ry. Co. v. Hurdnuin, l.")2. 
 Canada Co. v. Douglas, 679, 680. 
 Canada v. Ontario an<l Quebec, 72. 
 Canada Paint Co. v. Trainor, 149. 
 Caiuida Pernianont L. and S. Co. v. McKayi 
 
 763. 
 Canada Permanent L. & S. Co. v. Page, 98, 
 
 767. 
 Canada Permanent L. & S. Co. v. Teeter, 6111. 
 Canada Permanent L. & S. Co. v. Traders' 
 
 Bank, 349. 
 Canada Southern Ry. Co. v. .Jackson, 64, 69, 
 
 146, 150. 
 ('anaila Southern Ry. Co. and Lewis, Rc,6H8. 
 " " v. Niagara Falls, 
 
 688. 
 (Canadian Bank of (!onnncvce v. Woodcock, 
 
 784. 
 
 ! 
 
 i 
 
 I 
 
 ■ 
 
xn. 
 
 TABLE OF CASES. 
 
 Caim.lian Colored Cotton Mills Co. v, Ker- 
 
 vin, 849. 
 Canadian (/Otton Mills Co. v. 'I'alhol, 147. 
 Canadian Facitic Ily. (Jo. and XationalClul), 
 
 He, 032, (i97. 
 Canadian Pacitio Ry. Co. and Town.ship of 
 
 York, Re, Cili. 
 Candler v. Tillett, :{87. 
 
 Cannon v. Rimington, (i77. " 
 
 Cann v. Taylor, tiS.S. 
 Cooper V. Hi'iliuck, (iS9. 
 Capell V. Powell, 7H6. 
 Capital and ('oun'ties Hank \. Henty, 11.5. 
 Capron v. (Japron, H'2'.i. 
 Carling Brewing and Malting (U>. v. Bluek, 
 
 .396, 468. 
 Carniichaer.s faso, .SrH). 
 Carnegie v. Federal Hank, "iCU. 
 Caron v. (jrahaiii, ^.'iO. 
 Carpenter v. Deen, 3.5.3, 504. 
 Car{)enter v. Street, 547. 
 Carter v. (;iaike, 149. 
 Carter v. Clarkson, (i.S.'J. 
 Carter v. Drysdalc, 153. 
 Carter and Konderline, Re, 465. 
 Carter v. Long, 250. 
 Carter v. Stone, 467. 
 Carter v. Wake, -)6(t. 
 Carson v. Veitch, 827. 
 Carr, Kx paite. Re Tlc'-ian, 469. 
 Can- V. Fire Insuianoe C<i. 607. 
 Carr v. Foster, (i9l. 
 Carr v. London and Nortli Western Ry. Co. 
 
 480. 
 Carriek v. Smith, 76"). 
 Carri(iue v. Heaty, 542, .546, 548. 
 Cairitt, Re, 6;J4." 
 Carroll v. Heard, .363, 829. 
 Carroll v. Fitzgerald, 788. 
 Carroll v. Provincial Natui.il (iaa Co., 354. 
 Cartwright v. Hin<l.'i, 264. 
 Case V. McVeigii, 275. 
 Casement v. Fulton, 648. 
 Casey v. C.P.K. 150. 
 Casey v. Jordan, 762. 
 Cas!More, Re 647. 
 Casner v. Haigiit, 797. 
 Cassidy v. Firman, .308. 
 Cassidy v. Stnait, 276. 
 Casson V. Dade, 649. 
 Castle V. Fox, 6.55. 
 Castle V. Warland, ;«8. 
 C'viiicart, Re, 246. 
 Caton V. Rideout, 78S, 
 Caudle V. Seymour, 128, 129. 
 Cavanagh v. J'ark, 153. 
 Cawley V. Furnell, .308. 
 Central Hank, Re,Cani'(la ShippingCo's. ease, 
 
 563, 565. 
 Central Hank v. Oarland, 364, .559. 
 Central Hank, Re, Li(iuidator's case, .398. 
 
 " " , Horton and Hhwk's claims, 
 .-Ml. 
 Central Hank, Re, Naamith's case, 500. 
 Central Vermont Railway v. St. .lolin, ,55, 61. 
 Centre Wellington, R(!, 71. 
 Chadwick v. Hroadgood, 076. 
 Challey, Ro, 467, 409. 
 Chagnon v. Nornumd, 292. 
 
 Chant V. South Eastern Ry. Co., 169. 
 
 Chaplin, Kx parte, .330, .371. 
 
 Chamber (Jolliery Co. v. Hopwood, 086. 
 
 Chamhe-'lain v. King, 130. 
 
 Chamberlain v. Sovais, 606. 
 
 Chamberlain v. Yoiing, 541. 
 
 Chaniberland v. Fortier, 291. 
 
 Chamberlin v. Clark, .395. 
 
 Chambers v. Minehin, .387. 
 
 Champion, Re, Dudley v. Champion, 655. 
 
 Chapman \-. Heecham, 822. 
 
 Chapman, Re, Coeks v. (Jhapnian 403, 404. 
 
 Chapman v. (Inardian of Auckland Union, 
 
 130. 
 Chapman v. RothwcU, 15S. 
 Chajjuian v. Zealand, 444. 
 Chaput V. Rol)ert, 15, 49(). 
 Chard v. Rae, 297. 
 
 Chartered Hank of India v. Henderson, 444. 
 Chasemore v. Richards, (i87. 
 Chaseniore v. Turner, .305. 
 Chastey v. .Vckland, 689. 
 Chaudiere (Jold .Mining Co. v. Desbarats, 
 
 573. 
 Cheese v. Lo\ejoj-, 653. 
 Chellew v. Martin, 656. 
 Cheslvn V. Dall)V, .305, 3(»7. 
 Chew V. Holroy<l, 2.36. 
 Chichester v. Marquis of Donegal, 007. 
 Chilcott. Re, 6.54. 
 Ciiilderston v. Harrett, 277. 
 Ciiillinian, Re, 288. 
 Chine's Estate Re, 823. 
 Chinnery v. Kvans, 682, 68.3. 
 Chipt^hase, Ex parte, 501. 
 Chisholm v. Harnar.l, .398. 
 Chisholm v. Emeiy, (i57. 
 
 Chisholm and Oakville, Re, 764, 765. 
 Christian, Re, 649. 
 
 Christian v. Field, 606. 
 
 Christie v. Ovingtoii, 390. 
 
 Jhristv V. Casey, 822. 
 
 Chubb V. Stretch, 783. 
 
 Church V. Ap|)lel)y, 151. 
 
 Churcher v. Martin, (i85. 
 
 Churchill v. Hoiison, .387. 
 
 Citizens' Ins. Co. v. Parsons, 51, 54, 55, 56, 
 03, 64, 07. 
 
 City Hank v. Barrow, 479, 481, 1S2. 
 
 Clare, Ro, 243. 
 
 Cla|)hani v. Draper, 822. 
 
 Claik, He, 243, 245,289. 
 
 Clark V. Adams, 1.52. 
 
 Clark V. Ashfiel.l, 264. 
 
 Clark V. Hates, 359. 
 
 Clark V. Bellamy, 388, 393. 
 
 Clark V. Hogart, 761. 
 
 (Jlark V. Carlin(Joal (Jo., 156. 
 
 Clark, Re, Clark v. Randall, 6.52. 
 
 Clark V. Farrell. 3.30. 
 
 ('lark V. Holnu's, 1.52. 
 
 Clark V. St. Mai\s Huiy, St. iSdnionds, 830. 
 
 Clark V. Torbell,'3,52. 
 
 (Jlark V. Western Assce. Co., ,50.5. 
 
 Clarke, Re, 245, 648. 
 
 Clar'"' .-ud ('hamberlain, Ro, 706. 
 
 Clarke v. v'larke, 275. 
 
 Clarke v. (^ bley, 309. 
 
 (Jlarke v. CreiKhton, 783. 
 
7'ABLE OF CASES. 
 
 Xin 
 
 Clarke v. Crctico, 276. ^ 
 
 Clarke v. Hoskins, 390. 
 
 Clarke v. London and County Banking Co. , 
 
 042, 547. 
 Clarke v. McDonnell, 286, 288. 
 Clarke v. Proudfoot, 266. 
 Clarke v. Samson, 589. 
 Clarke v. Spence, 561. 
 Clarke v. Atty. -(ien. for Canada, 470. 
 Clarkson v. Henderson, 682. 
 
 McMaster, 349, 350, 351, 359, 
 
 Clarkson v 
 462, 470. 
 Clarkson v 
 Clarkson v 
 Clark.son v 
 
 Musgrave, 1,30, 153. 
 
 Ontario Bank, 58, 65. 
 
 Ryan, 58, 291. 
 Clarkson v. Severs, 467. 
 Clarkson v. Sterling, 359, 460, 462. 
 Claxton V. Mowlem, 149, 150. 
 Clay V. Thackrah, 686. 
 Clayton v. Blakey, 836. 
 Clayton v. Corby, 686, 687, 692. 
 Cleaver v. Fraser, 266. 
 Cleck V. Laurie, 300. 
 Clegg V. Grand Trunk, 69. 
 Clegg V. McNahl), 278. 
 Clegg V. Rowland, 396. 
 Cleland v. R()l)in.>5t)n, 129. 
 ClenientH v. Kirliy, 276. 
 Clements v. London and North VVcatern Ry. 
 
 Co., 1-3. 
 Cleniniow v. {.(inverse, 462. 
 Clendenning v. Browne, 277. 
 Clerk v. Ward, 648. 
 Cleveland v. Mellmurne, 64. 
 Clifford V. Clifford, 656. 
 Clock V. Alfeld, 264. 
 Clough V. Hon<l, 388. 
 Clutton V. Altoul)oi'ougl>, 541, 546. 
 Coatsworth v. .Johnson, 588. 
 Cohbett, Kx jiarte, 277. 
 Cobbett V. Kilniin.stcr, 98. 
 Cockayne, K\ parte, 246. 
 Cockburn, Re, 686, 691. 
 Cockburn v. Edwards, 683. 
 Cockburn v. Sylvester, 565. 
 Coekerell v. Cholnicley, 591. 
 Coffey v. Scane, 2ti4, 275. 
 Cofl'ey V. Quelicc Bank, 565. 
 Cofliji V. North American Land Co., 675, 679. 
 Cogswell V. Armstrong, 655. 
 Cohn V. Weiiier, 543. 
 Colberg, Re, 653. 
 Colchester v. Roberts, 692. 
 Cole V. Manning, 95. 
 Cole V. Miles, 236. 
 Cole V. Nortli Western Bank, 443, 479, 481, 
 
 482. 
 Colo V. Porteous, 14, 465. 
 Cole V. Scott, 655. 
 (Joloby V. t'oleby, 658. 
 Coleman, Re, 483. 
 Coles V. Coles, !)6. 
 Coles V. Tit'cothick, 680. 
 (bollard and Duckworth, Re, 590, .V.)L 
 Colledgc V. Horn, 3tl5. 
 
 College of Physicians and Surgeon.-', He, 5(1. 
 Collingridge v. I'axton, 329. 
 Collins, He, (i47. 
 Collins V. Cinniinghani, tloii. 
 
 Collinson v. Margesson, 308. 
 
 Collip V. Phillips, 149. ^^ 
 
 Collis V. Stack, 305. 
 
 Collver V. Shaw, 766. 
 
 Colonial Bank v. Cady, 480, 557. 
 
 Colonial Bank v. Hepworth, 557. 
 
 Colonial Building and Investment Assn. 
 
 Atty. -Gen. of Quebec, .52. 
 Colquhoun v. Murray, 681, 682. 
 Colthart, Re, 287, 798. 
 Coltnian v. Brown, 98. 
 Coltsnian v. Coltsnian, 657. 
 Commercial Bank v. Bi'ega, 97. 
 
 Smith, 804. 
 
 Bank of Upper Canada, 
 
 Watson, 606. 
 of Manitoba, Re, Bark- 
 
 Commercial Bank v. 
 Commercial Bank v. 
 
 559. 
 Commercial Bank v. 
 Commercial Bank 
 
 well's claim, 558. 
 Commercial Bank of South Australia, Re, 
 
 845. 
 Commercial National Bank of Chicago v. 
 
 Corcoran, 349, 353, 564, 566. 
 Commissioners of CobourgTown Trust, Re, 
 
 397. 
 Condlif v. Condlif, 160. 
 Condon v. Great Southern and Western H v. 
 
 Co., 1.58. 
 Confederation Life Assn. v. Kinnear, 309. 
 Conger v. G. T. R., 152, 156. 
 Conmee V. Weidnian, 116. 
 Conn v. Smith, 471, 566. 
 Connecticut Passumpsie Ry. Co. v. ]SIo"ris, 
 
 .328. 
 Connell v. Hickock, 351, 353, 778. 
 Connelly v. Murrell, 94. 
 Connors v. Darling, 128. 
 Conroy v. Peacock, 153. 
 Consolidated Bank v. Henderson, 786. 
 Constable v. Constable, 286, 823. 
 Constable v. Nicholson, 688. 
 Constantinople and Alexandria Hotel Co., 
 
 Re, .309. 
 Consterdine v. Consterdine, 402. 
 Conway v. Clemence, 148, 149. 
 Cook V. Fowler, 249. 
 Cook V. ({rant, 95. 
 Cook V. Lambert, 647. 
 Cook's Trust, Re, 396. 
 Cooke, Re, 6.53, 697. 
 Cooke V. Pnxton, 650. 
 Cookson V. Swire, .351. 
 Cool V. Mulligan, 250. 
 Coolev V. Smitli, 76.3. 
 Coom\)s, He, 647. 
 Cooney v. Slieppard, 781. 
 Coope V. Ciesswell, 298. 
 Cooper V. Bockett, 648. 
 Cooper V. Dixon, 460. 
 Cooper V. Hamilton, ()75. 
 Cooper V. Jaiinan, 658. 
 (y'ooper V. Lloyd, 93. 
 ("ooper V. Macdonald. 779. 
 ('op])in V. ('o])piiij .")S7. 
 ('oi|uillaid V. Ilunlei', 250. 
 t;orl(y. He, 65(1. 
 
 Corliyn, Doe<l. v. Hianslon, ()S5. 
 Corcoran v. East Surrey Iron Works Co., 
 
 US. 
 
 
XIV. 
 
 TAllLE OF OASES. 
 
 Core V. Ontaiio Loan and Uobentute Co., 
 
 76.S. 
 Corhani v. Kingston, 607. 
 Cornforth v, Smithard, 305. 
 Corning v. Burden, 148. 
 CorniHh v. Abingdon, 480. 
 Cortiiwh V. Stulibs, S26. 
 Cornwall v. Hawkins, 309. 
 Cornwall v. Sandars, 23.'). 
 Corpus C'hristi College v. Rogers, (>7.">. . 
 Cor.sellis, Re, Lawton v. Klwes, 47"-'. 
 Cosgrave v. Boyle, 544. 
 CoHtello V. Huiitei', 94. 
 Cote V. Chauveau, (H). 
 Coteswortii v. Spokes, 828. 
 Cotton V. Beattv, 1 15. 
 Cotton V. Mitchell, 297. 
 Cotton V. Wood, 159. 
 Coulcher v. Toppiii, 544. 
 Coulson V. O'Connell, 10. 
 County Courts of British (.'()lunil)ia, He, ().>. 
 Court V. Holland, 473. 
 Court V. WaLsh, 074, OH I. 
 Courtenav, Re, 654. 
 Courtney V. Williams, .308. 
 Courtoj' V. Vincent, 330. 
 Cousineau v. London Fire Ins. Co., I. '12. 
 Coventry v. McLean, 825, 820, 82.S. 
 Cowan V. Allen, 031, 057. 
 Cowans V. Marshall, 149, 849. 
 Coward v. Adams, 098. 
 Cowler V. Moresby Coal Co., 145. 
 Cowlev V. Newcastle Local Boaid, 15. 
 Cox V.' Bennett, 655, 780. 
 Cox V. (Ireat Wc-'tern Ry, Co., LVI. 
 Cox V. Hamilton Sewer Pipe Co., 149. I."i3. 
 Coyle V. (ireat Northern Ry, Co., I.IO. 
 Cozens v. Croat, 052. 
 Crafter v. Metropolitan Rv. Co., 148. 
 Craig, Re. 098. 
 Craig V. iSanuiel, 543. 
 Crain v. Ottawa Collegiate Institute, 10. 
 Crapper v. Patterson, 465. 
 Crawfonl v. Boyd, 651. 
 Crawford v, Broddy, 657. 
 Crawfoi'd v. (j'rawford, 308. 
 Crawfoi-d v. (Jui'ragh, 645. 
 Crawford v. Town of Cobourg, 557. 
 Crears v. Hunter, 542. 
 Cregreen v. Willoughby, 649. 
 Creswell v, Jackson, 98. 
 Creswell v. (Jreswell 652. 
 Crew Doe d. v. Clarke, 265. 
 Criminal Code Re, .TO. 
 Cripps V. Davis, .307. 
 Cripps V. Judge, 140. 
 Croft V. Croft, 050. 
 Crombie v. Cooper, 055. 
 Crombie v. Jackson, 52, 50. 
 Oomie v. Skene, 119. 
 Crooks V. Allen, 441. 
 Crooks V. Cummings, 053. 
 Crooks V. Stroud, 472. 
 Croabie v. Macdonal, i'M. 
 Croskery, Re, 790, 797. 
 Cross v. Jordan, 828. 
 Cross V. (Joodman, 119. 
 Cross V, Lewis, (iWO. 
 Cross V. Wilcox, 129. 
 
 Crown V. Clmmbcrlin, 332. 
 
 Crowter, Re, Crowter v. Hinman 387. 
 
 Cruso v. Bond, 609. 
 
 Cubbitt, Doe d. v McLeod, 828. 
 
 Culhane v. Stuart, 470. 
 
 Cuming v. Toms, 131. 
 
 Cumming, Re, 244, 245. 
 
 Cummings v. Taylor, 461, 465. 
 
 Cundy v. Lindsay, 249. 
 
 Cunningham, Re, 389. 
 
 Cunningliam v. Foot, 684. 
 
 Cunnington v. Peterson, 546. 
 
 Cuno, Rt, Mansfield v. MansHeld 040. 
 
 Curran v. G. T. R.. 140, 159, lOO. 
 
 Currey, Re, Gibson v. Wiiy, 785, 780. 
 
 Cursiter, Re. 398. 
 
 Curwen v. Milburn, 305. 
 
 Curzon, Doe d. v. Kdmond, 68L 
 
 Cusick v. McRae, 128. 
 
 Gushing v. Depuy, 52, ,56. 
 
 (/'iithbert v. North American Life Assce. 
 
 Co., 823. 
 Cutto v. (iilbert, 653. 
 > 
 
 D. 
 
 Dal)l)s V. Humphries, 305. 
 
 Dacre v. Patrickson, 658. 
 
 Dain v. (iossago, 15. 
 
 Dale V. Cool, 130. 
 
 Dale \. Mc(Tuinn, 657. 
 
 Daley v. Byrne, 120. 
 
 Dalglish v. McCarthy, .370. 
 
 Dalton v. Angus, 085, 680, 68 
 
 D'Alton V. D" Alton, 289. 
 
 Dalton v. Fitzgerald, 67". 
 
 Dalton v. South Kastern Rv 
 
 Dalton, Re, 648. 
 
 Daly V. Robinson, 95. 
 
 Dame v. Slater, 779. 
 
 Darner v. Busby, 276. 
 
 Dames and Wood, Re, 69<}. 
 
 Danahor v. Peters, 62. 
 
 Danby v. Danhj-, 407. 
 
 Dance v. Goldiiigham, 392. 
 
 Dancer v. Crabb, 654. 
 
 Dando v. Boden, 545. 
 
 Daniel v. North, 680. 
 
 Daniels v. Daniels, 358. 
 
 Danjou v. Marquis, 66. 
 
 Dansereau, Kx parte, 64, 06. 
 
 Darling, Re, 95. 
 
 Darling v. Hitchcock, 15. 
 
 Darling v. Mclntyre, 465. 
 
 Darling v. Magnan, 496. 
 
 Darling v. Rice, 783, 784. 
 
 Darling %. Smith, 266. 
 
 Daun V. Sherwood, 548. 
 
 Dauphinais v. Clark, 822. 
 
 Davenport, Re, Turner v. King, 782, 
 
 Davey v. Lewis, 829. 
 
 David V. Sabin, 590. 
 
 Davidson v. Fraser, 402, 46.3. 
 
 Davidson v. McKay, 702. 
 
 Davidson v. Rej'nolds, 328. 
 
 Davidson v. Ross, 16. 
 
 Davies H. & M. Co. v. Smith, 430. 
 
 Davie.s v. Davies, 309. 
 
 Davies, Re, Ellis v. Roberts, 394. 
 
 088, 690. 
 
 Co., I.jT, 158. 
 
TABLIi OF CASES. 
 
 XV. 
 
 Davies v. Gillard, 4B1. 
 
 Uavies v. Jenkins, 785. 
 
 DavieB v. Stainbank, 437. 
 
 Davies v. Williams, 119, 679, 691. 
 
 Davis, Re, 286. 
 
 Davis V. Bowes, 489. 
 
 Davis and Cavey, Re, 696, 698. 
 
 Davis v. Davis, 288, 289, 658. 
 
 Davis, Re, Evans v. Moore, 683. 
 
 Davis V. Freethy, 266. 
 
 Davis V. Reilly, 548. 
 
 Davis V. Van Norman, 97. 
 
 Davis V. Wickson, 465. 
 
 Davis v. Williams, 128. 
 
 Davy, Re, 246. 
 
 Davy, Doe d. v. Oiienden, 675. 
 
 Dawkins v. Lord Penrhyn, 674, 677. 
 
 Dawson, Re, 501. 
 
 Dawson v. Hank of Whitehaven, 797. 
 
 Dawson v. Clarke, 387. 
 
 Dawson v. Diiniont, 291. 
 
 Dawson v. Moft'att, 782. 
 
 Dawson v. Small, 657. 
 
 Day v. Batchelor, 545. 
 
 Day v. Day, 675. 
 
 Day V. Longhurst, 543. 
 
 Day, Re, Sprake v. Day, 658. 
 
 Day V. Trig. 656. 
 
 Day V. Woolwich Equitable Bldg. Socy. 392. 
 
 Deal V. Potter, 249. 
 
 Dean v. Ontario Cotton Mills Co., 151. 
 
 Dearie, R(!, 647. 
 
 Dedrick v. Ashdown, .359. 
 
 Defoe, Re, 675, 678 
 
 l)eighton and Harris, Re, 696. 
 
 Delanev V. C. P. R., 685. 
 
 Delanty, Re, 287. 
 
 Delegal v. Higldey, 1 16. 
 
 Delorne v. Cusson, 291. 
 
 Deniill v. Easterlirook, 275. 
 
 Denison v. Donison, .397, 398. 
 
 Denison v. Maitland, 824, 828. 
 
 Denne v. Wood, 652. 
 
 Dennison v. Cunningham, 128. 
 
 Denver T. & (J. R. Co. v. Simpson, 147. 
 
 Deputy Coroner of Middlesex, Ex jiarte, 276. 
 
 D'Errico v. Samuel, 237. 
 
 Derinzy v. Turner, 647. 
 
 De Tastet v. Carroll, 462. 
 
 Devaynes v. Boys, 131. 
 
 De Veber Re, 6i). 
 
 Devon's Settled Estates, Re Earl of, 676. 
 
 De Wolf V. Lind.sell, 437. 
 
 Dews V. Riley, 128. 
 
 Diamond v. Cartwright, 275. 
 
 Dias V. Livera, 782. 
 
 Dibb v. Walker, 298. 
 
 Dick, Re, 402. 
 
 Dick v. Swinton, 276. 
 
 Dickenson v. Hatfield. 307. 
 
 Dickinson, Re, 471. 
 
 Dickinson v. North Eastern Ry. Co., 156. 
 
 Dickinson v. Teesdale, 684. 
 
 Dickin v. Dickin, 590. 
 
 Dicker v. Angerstein, 610. 
 
 Dickson, Re, 286, 289. 
 
 Dickson v. Cralib, 128, 
 
 Dicderichsen v. Farcudiarson, 443. 
 
 l>igge's Case, 591. 
 
 Dilke V. Douglas, 390, 607, 608. 765. 
 
 Dilkes, Re, 646, 649, 
 
 Dingman v. Austin, 780. 
 
 Dingman and Hall Re, 697, 698. 
 
 Dingman v. Harris, 785. 
 
 Dinnock v. Hallett, 591. 
 
 Disher v. Disher, 265. 
 
 D'lvry V. World Newspai)er Co., 93. 
 
 Dixon, Ex parte, 479. 
 
 Dixon, Re, Bryan v. Tull, 782. 
 
 Dixon V. Gayfere, 675. 
 
 Dixon, Doe d. v. Grant, 297. 
 
 Dixon V. Saville, 796. 
 
 Dixon V. Snarr Re, 235. 
 
 Doan V. Davis, 797. 
 
 Doan V. Michigan Central Rj-. Co., 131. 
 
 Dobbin v. Dobbin, 796, 797. 
 
 Dobie v. Temporalities Board, 57, 58, 7ii 
 
 Dobson v. Sooiheran, 836. 
 
 Dodson V. MacKey, 305. 
 
 Dodson V. Samniell, 395. 
 
 Doe V. Barford, 651. 
 
 Benhani, 821. 
 
 Birch, 824. 
 
 Coombs, 679. 
 
 Gladwin, 825. 
 
 Hinde, 821. 
 
 Horn, 828. 
 
 Jackson, 827. 
 
 Masters, 823. 
 
 Meux, 824. 
 
 Paul, 824. 
 Doe V. Peck, 824, 825. 
 Doe V. Roe, 823. 
 Doe V. Wandless, 823. 
 Doe V. Woodbridge, 82;). 
 Doe V. Woodman, 828. 
 Dominion Bank v. Cowan, 460. 
 
 Davidson, 442, 563. 
 Heffernan, 430. 
 
 H 
 
 Doe V 
 
 Doe V 
 
 Doe 
 
 Doe 
 
 Doe 
 
 Doe 
 
 Doe 
 
 Doe 
 
 Doe 
 
 Doe 
 
 Dominion Bank 
 Dominion Bank v 
 
 Dominion Bank v. Oliver, 560, 562. 
 Dominion Bank v. Wiggins, 541, 547. 
 Dominion Provident Ass'n, Re, 63, 66. 
 Dominion Savings and Investment Co. v. 
 
 Kilroy, 781. 
 Dominion Savings and Investment Co. v. 
 
 Kittridge, 763. 
 Donaldson, Re, 650. 
 Donaldson v. Haley, 131. 
 Donovan v. Bacon, ,331. 
 Donly V. Holmwood, 16. 
 Donnelly v. Donnelly, 787. 
 Donogh V. Gillespie, 483. 
 Donohue v. Brooltlyn City R. Co., 147. 
 Donor v. Ross, 395. 
 Donovan v. Herbert, 679. 
 Dorchester v. Effingham, 388. 
 Dorsey v. Doisey, 788. 
 Douce, Re, 648. 
 Dougall V. Cline, 308. 
 Dougall V. Turidndl, 331. 
 Doughty V. Firbank, 150. 
 Douglas V. Ewing, 483. 
 Douglas V. Hutchinson, 78(1. 
 Douglas V. Smith, 649. 
 Doull V. Koj)man, 471. 
 Dove V. Dove, 827. 
 Dow V. Black, 59, 68. 
 Dowcra, Re, Dowcra v. Faitli, 39(t. 
 
XVI. 
 
 TABLE OF CASES. 
 
 Duwling V Miller, 249. 
 
 Dowiie V. Fletcher, 787. 
 
 Doylo V. Boll, 52, 54. 
 
 Dracachi v. Anglo- Egyptian Navigation Co., 
 
 44.S. 
 Drake v. Kershaw, (5.58. 
 Drake V. North, 081. 
 Dreschel v. Auer Incandescent Light Co.. 
 
 292. 
 Drew V. Nunn, 30(). 
 Driscoll V. (Jreen, 3;)7, 
 Drunimond v. I*arinli, 6.50, 
 Dninimond v. Saiit, 676. 
 Dry V. Bo.swell, 311 
 Duckworth v. Johnson, 1.57, 168. 
 Duffill V. Erwin, 249. 
 Dufreane v. Dufresne, 788. 
 Dufresne v. (iuevreniont, 292. 
 Duggan V. Kitson, 82.5. 
 Duggins, Re, '^49. 
 Dulniage v. Douglas, 60. 
 Dumbrill, Re, 246, 468. 
 Dumer v. Huniberstone, .55. 
 Duncan, Ex parte, 60. 
 Duncan v. Cashin, 779. 
 Duncan, Fox & Co. v. North and South 
 
 Wales Bank, 437. 
 Dunlop V. Dunlop, 6.58. 
 Dunham, Re, 678. 
 Dunn V. Devon & Exeter Newspaper Co., 
 
 116. 
 Dunn V. Flood, 392. 
 Dv-.in V. Regina, 15, 60. 
 Dunning, Doe v Cranston, 655. 
 Dunsford v Carlisle, 93. 
 Dunston v. Paterson, 204, 606. 
 Dunwicke School Trustees v. McBeath, 95. 
 Duplex v. DuRoven, 297. 
 Duppa v. Mayo, 8.36. 
 Durant v. Abendroth, 488. 
 Durnin v. McLean, 2,35. 
 Duthie v. Essery, 545. 
 Dutton v. Wilkinson, 828. 
 DuVigier v. Lee, 297. 
 Dwyer and Port Arthur Re, 14. 
 Dyce V. H.iy, 687. 
 Dyce Sombre, Re, 245. 
 Dyer v. Best, 490. 
 Dyer v. Evans. 468. 
 Dyer v. Pearson, 480. 
 Dyke, Re, 054. 
 
 Eacrett v. Kent, 407. 
 
 Eager v, Furnivall, 657. 
 
 Earl, Ex parte, 390. 
 
 Earl of Sheffield v. London Joint Stock 
 
 Bank, 558. 
 Earle v. Oliver, 304. 
 East Tennessee Ry. Co. v. Lilly, 157. 
 Eastman v. Richard, 837. 
 Eastwood V. Henderson, 115. 
 Eaton Estate, Re, 696, 
 
 Eaton V. Swansea Waterworks Co. , 0S6, 687. 
 Ecclesittstical (Jomniissioners v. King, 690. 
 Ecclesiastical Connuissioners v. Rowe, 675. 
 Eddel, Re, 657. 
 Edgar V. Magee, 131, 548. 
 Edge, Re, 654. 
 
 Edie and Brown, Re, 697. 
 
 Edinburgh Ballarat Cold Quartz Mine Co. v. 
 
 Sj'flney, 541. 
 Edison (ienerul Electric Co., v. Westminster 
 
 Tramway Co., 46(J, 461. 
 Edmonds v. Hamilton Provident and Loan 
 
 Soc'y, 607, 008, (MM). 
 Edmonds v. Peake, 388. 
 Ednmnds v Blaina Furnaces Co., 593. 
 Edmunds v. Downes, 306, .307. 
 Edmunds v. Waugh, (i82. 
 Edwards, Re, Ex parte Harvev, 781. 
 Edwards v. Carter, .309. 
 Edwards v. Cheyne, 788. 
 Edwards and (Jreene, Re, 608. 
 Edwards v. Hodges, 131. 
 Edwardu v. Martin, 783. 
 Edwards v. Walters, 545, 548. 
 Elderton, Re, 286. 
 Elgie V. Butt, 275. 
 Ellerby v. Walton, 276. 
 Ellis, Ex parte, 58, 66, 464. 
 Ellis V. (irubb, 762. 
 Elliott V. Queen Citv Assce Co, 96. 
 Elliott V. Brown, 8(J5. 
 Elliott V. Bulmer, 679. 
 Ellsworth ar ' ".'idy. Re, 698. 
 Elnie V. Da Costa, 407. 
 Elston V. Rose, 234. 
 Elvidge V. Mehlor., 822. 
 Elvy V. Norwood, 297; 
 Elwell v. Jackson, 547. 
 Ely V. Bliss, 677. 
 Ely's, (Lord) Case, 243. 
 Embury v. West, 357, 4()2. 
 Emerson, Re, 648. 
 
 Emery v. Barnett, 236. 
 
 Emilien Marie, The, 444. 
 
 Emmanuel v. Constable, 651. 
 Employers' Liability Coi'poration v. Skipper, 
 542. 
 
 Emrick v. Sullivan, 780. 
 
 Engel V. Stourton, 546. 
 
 England v. Wall, 68(), 
 
 English Bank of the River I 'late. Re 544, 
 546, 548. 
 
 English V. Mulholland, 23(». 
 
 Enyon, Re, 649. 
 
 Erb V. fJreat Western Ry. Co., 443. 
 
 Erickson v. Brand, 276. 
 
 Ermatinger, Re, 397, 398. 
 
 Esnouf V. (lurney, 363. 
 
 Esquimau Ry. (Jo; v. Bainbridgc, 71. 
 
 Essex Land and Timber Co., Re, .56(1. 
 
 Eton College v. Bishops of Winciiester .589. 
 
 European North American Railway Co. v. 
 Thomas, 62. 
 
 Euston v. Seymour, 650. 
 
 Evans, Re, 396. 
 
 Evans and (Jlarkc, Re, 470. 
 
 Evans v. Dallow, 053. 
 
 Evans v. Davics, 307. 
 
 Evans v, Simon, 306. 
 
 Evans v. Watt, 120. 
 
 Evening News, Re, 116. 
 
 Everett v. Everett, 655. 
 
 Everett v. Robertson, .308. 
 
 Everett v. Automati<; Weighing Machine 
 Co., 607. 
 
TABLE OF CASES. 
 
 XVU 
 
 Everitt v. Paxton, 7S4. 
 Eversfield v. Newman, '236. 
 Eves V. Booth, 708. 
 Ewart V. Latta, 437. 
 Ewer V. AmbroHc, 9tj. 
 Excliange Bank v. Fletcher, 559. 
 Exchange Bank v. Regina. 71. 
 Eyre, Re, Eyre v. Eyre, 591. 
 Eyton V. Jones, 826. 
 
 Fabian ami Windsor's case, 824. 
 
 Fabian and Win.ston, Re 824. 
 
 Fahey v. Dwyer, 689. 
 
 Fave V. McCrow, 236. 
 
 Fairchild v. Ferguson, 548. 
 
 Fairweather v. Owen Sound Quarry Co., 143. 
 
 Falkner v. Equitable Reversionary Society, 
 392. 
 
 Farewell, Tlic, 50. 
 
 Farewell v. Farewell, 651. 
 
 Fivrlinger v. MacDoi.alil, 335, 356. 
 
 Farlow v. Stevenson, 827. 
 
 Farmer v. (i. T. R., 149, 156. 
 
 Farnhani, Re, 245. 
 
 FarquJiar, Ro, 650. 
 
 Farrar v. Winterton, 655. 
 
 Farrell \-. Farroll, 65(). 
 
 Farwell v, .Jameson, 829. 
 
 Fary, Re, (554. 
 
 Fau'ltls v. Harper, ,331, 677, 683. 
 
 Faulkner v. lirine, 96. 
 
 Fawkes v. Oriffin, 278. 
 
 Fearn v. Lewis, 308. 
 
 Fearnside v. Fliat, ()77. 
 
 Feaster v. (^Jooiiej-, 115, 117. 
 
 Felix, The, 441. 
 
 Fell V. Biddolph, 652. 
 
 Fenwick, Re, 6.">2. 
 
 Fenwick v. Claikc, 388. 
 
 Ferguson, Re, 631. 
 
 Ferguson v. Cirnian, 266. 
 
 Ferguson v. Claywoith, 783, 786. 
 
 Ferguson v. Englisli and Scottish Invest- 
 ment Co., 610. 
 
 Ferguson v. Hill, 762. 
 
 Ferguson v. Whelan, 681. 
 
 Ferguson v. W'insor, 764. 
 
 Feme, Ex parte, 245. 
 
 Ferrier v. Moodie, 679. 
 
 Fettiplace v. (Jorgos, 783. 
 
 Field V. Evans, 785. 
 
 Field V. Hart, 328, 353. 
 
 Field V. Livingston, 6,54. 
 
 Fiehl V. McArthur, 783, 784. 
 
 Fielding v. Oirry, .544. 
 
 Fielding v. Tiiomas, 59, 67, 69. 
 
 Figlia Moggiore, Tlic, 442. 
 
 Fillmoi-e v. Colbnrn, 65. 
 
 Finch, Re, Finch v. Finch, 95. 
 
 Finch v. Oilroy, 675. 
 
 Fine Art Society v. Union Bank, .557. 
 
 Finlav v. Miscampliell, 147, 148, 1.50. 
 
 Finn," Re, 285. 
 
 Fischer v. I'opliani, 650. 
 
 Fisher, Ex i)arte, 462. 
 
 Fisher v. Roberts, 547. 
 
 Fisher v. B'islier, 292. 
 2 
 
 Fisher v, (Jrace, 236. 
 
 Fisher v. Spohn, 765. 
 
 Fisher v. Thames Junction Ry. Co., 131. 
 
 Fisk V. Mitchell, 305. 
 
 Fitzgerald, Re, 246. 
 
 Fitzgerald v. Johnston, 353. 
 
 Fit ;gibbon v. Duggan, 331. 
 
 Fitzpatrick v. Fity.patrick, 287. 
 
 Fitzroy, Re, 652. 
 
 Flack V. Holm, 276. 
 
 Flaniante, Re, Wood v. Cook, 788. 
 
 Flatt V. Ferland, 291. 
 
 Flayer v. Bostock, 388. 
 
 Fleming, Re, 245, .397, 398. 
 
 Fleming v. Dollar, 116. 
 
 Fleming v. Livingstone, 235. 
 
 Fleming v. Ryan, 471. 
 
 Fleetwood, Re, 652. • 
 
 Fleetwood, Re Sidgreaves v. Brewer, 651, 
 
 Fletcher's Estate, Re, 6.32. 
 
 Fletcher v. Nokes, 825. 
 
 Fletcher v. Walker, 388. 
 
 Fletcher v. Wilkins, 130. 
 
 Fleurv v. Pringle, 797. 
 
 Flick'v. Bris'.J'i, .53, 57. 
 
 Flight V. Thomas, 690, 691. 
 
 Flood, Re, 786. 
 
 Florence Land Co., Re, Ex parte Moor, 593. 
 
 Flory V. Denny, .356. 
 
 Flower v. Local Board of Low Ley ton, 130, 
 
 Flower v. London & North Western Ry. 
 
 Co., 15.3. 
 Flower and Metropolitan Board of Works, 
 
 Re, 392. 
 Foat V. Earl of Margate, 130. 
 Folger V. Minton, 130, 244. 
 Forbes v. .Jackson, 437. 
 Forbes v. Ross, 402. 
 Ford V. Allen, 682. 
 Ford V. (i(wrlay, 120. 
 Ford V. <;rcv, 680. 
 Ford and Hill, Re, 697. 
 Ford V. Jjiisber, 264. 
 Fordam v. WuUis, 306. 
 Forest, Re, 6.V2. 
 
 l*\irest V. Laycock, 797. , 
 
 Jt'orrester v. Campbell, 763. 
 Forrestal v. McDonald, .363. 
 Forster v. Abraham, 389. 
 P'orster v. Patterson, 685. 
 Forsytii v. Bristowe, 298. 
 Forsytli v. Bury, 53. 
 I<'or8ytii V. Canniff, ,501. 
 Forsyth v. (5alt, 657. 
 Forsytli v. Raniage, 149. 
 Fortier v. Lambe, 60. 
 Forwood V. Mathews, 542. 
 Foster v. Banburg, 651. 
 Foster V. Beall, 804. 
 Foster v. Marcliant, 246. 
 Foster v. Van Vormcr, 472. 
 I^'ournier v. Hogarth, 264. 
 Fowke V. Turner, 8.36. 
 Fowler v. Knoop, 442, 443. 
 Foy V. Hawkes, ."93. 
 Fox V. Martin, .5.57. 
 Vox V. Nott, 442. 
 France v. Campbell, 329. 
 Franco v. Clark, 557. 
 
 I 
 
 !. 
 
XVlll. 
 
 TABLE OF CASES. 
 
 Francis v, Orover, 682. 
 
 Francis v. Hawkesley, 308. 
 
 Francis v. Turner, .S.58. 
 
 Franklin v. Xouth Eastern Ry. Co., 157, 158. 
 
 Fraser and Bell, Re, 697. 
 
 Fraser v. Byas, 560. 
 
 Fraser v. Gore District Mutual Fire Insur- 
 ance Co. , 482. 
 
 Fraser v. CJunn, 256, 684. 
 
 Fraser v. Hood, 146. 
 
 Fraser v. Lazier, 349. 
 
 Fraser v. Sutherland, 766. 
 
 Fraser v. Telegraph Construction Co., 442. 
 
 Frazee v. Mctiirland, 785. 
 
 Frear v. Ferguson, 275. 
 
 Freed v. Orr, 332, 333. 
 
 Freedom, The, 442. 
 
 Freehold Loan & Savings Co, v. Bank of 
 Commerce, 357. 
 
 Freeman v. Appleyard, 480, 562. 
 
 Freeman v. Cook, 480. 
 
 Freeman v. Freeman, 653. 
 
 Freme v. Clement, 655, 657. 
 
 French's Trusts, Re, 396. 
 
 Freston, Re, 277. 
 
 Fn^wen v. Phillips, 689. 
 
 Friedlander v. London Assurance, 96. 
 
 Friel v. Ferguson, 129, 130. 
 
 Frisby, Re, Allison v. Frisby, 297. 
 
 Frith, Re, 649. 
 
 Frost V. Bengough, 304, 307. 
 
 Fry V. Chartered Mercantile Bank, 443. 
 
 Fry V. Lane, 592. 
 
 ¥ry V. Moore, 265. 
 
 Fry V, Tapson, 389, 403, 404. 
 
 Frye v. Ives, 542. 
 
 Fuentes v. Montis, 482, 483. 
 
 Fuller, Re, 647. 
 
 Fuller V. Redman, .306. 
 
 Fullford V. FuUford, 058. 
 
 Furlong v. Carroll, 721. 
 
 Furness v. Mitchell, 780. 
 
 Furnival v. Saunders, 235. 
 
 Fursden v. Clegg, 681. 
 
 Fust, Re, 245. 
 
 G., Re, 288. 
 
 (rabriel v. Derbyshire, 98. 
 
 Gadd, Re, 389, 390. 
 
 (iaden v. Newfoundland Savings Bank, 547. 
 
 (iage V. Douglas, 470. 
 
 (ialarneau v. Guill)ault, 292. 
 
 (Jale v. Abbott, 691. 
 
 Galehouse, Doe d. v. Reos, 460. 
 
 (Jallaghcr v. Glass, 465. 
 
 (iallant. Re, 131. 
 
 Galway, Re, 032. 
 
 Gamble v. McKay, 767. 
 
 Gardiner v. Gardiner, .333. 
 
 Gardner v. Hrown. 796. 
 
 Gardner v. Kloepfer, 466. 
 
 Gardner v. Trcchmann, 443. 
 
 Garford v. Moffatt, 689. 
 
 Garland v. Toronto, 145, 160. 
 
 Garnet v. McKewan, 556. 
 
 Garnett, Re, 289. 
 
 Garrett v. Robert, 15. 
 
 Gaskin v. Rogers, 652. 
 
 Gasquoino, Re, 387. 
 
 (Jaston V. Wald, 821. 
 
 (iatewards Case, 688. 
 
 Gault v. Shpppard, 588. 
 
 (iausden. Re, 647. 
 
 Gaussan v. Morton, .300. 
 
 Gaved v. Marty n, 687. 
 
 (Jay v. Matthews, 130. 
 
 Geddes v. Wallace, 311. 
 
 (ieorge. Re, Francis, v. Bruce, 545, 548. 
 
 George & Richard, The, 156. 
 
 Georgian Bay Ship Canal Co., v. World 
 
 Newspaper Co., 117. 
 Goorgian Bay Transportation Co. v. Fisher, 
 
 71. 
 Gcnimill v. Cotton, 306. 
 Gemmill v. Garland, 15. 
 (iemmill v. Nelligan, 797. 
 Gibbins v, p]yden, 658. 
 Gibbon v. Bagshott, 465. 
 Gibbons v. McDonald, 460. 
 (libbons v. Wilson, 463. 
 Gibbs V. Dominion Bank, 564, 566. 
 Gibbs V. (Jreat Western Ry. Co., 150. . 
 Gibson v. Jeyes, 245. 
 Gibson v, McDonald, 58, 65. 
 (libson V. Midland Ry. Co., 156. 
 Gilbert v. Doyle, 837. 
 (Gilbert v. Gilinnn, 292. 
 Gilbert v. Stiles, 275. 
 Gilchrist, Re, Ex parte Armstrong, 779. 
 Gilclu'ist and Island, Re. 610, 611. 
 Gildersleeve v. Ault, 829. 
 Gigiiac V Her, 464. 
 Gill V. Att'y-Gen., 387. 
 fiill v. Tliorneycroft, 149. 
 Gillard v. Bollert, 350. 
 Gillard v. Lancashire & Yorkshire Ry Co., 
 
 137. 
 Gillard v. Milligan, 467. 
 Gilleland v. Wadsworth, 763, 765. 
 Gillespie, Re, 548. 
 Gilliatv. Gilliat, .591. 
 Gilmour v. Buck, 2.50. 
 Gilinour & White, Re, 390. 
 Gilpen v. Cohen, 277. 
 Gilroy v. Stephen, 388. 
 Girvin v. Burke, 364, 
 Gist, Re, 246. 
 Givins v. Darvil, 698. 
 Glass V. Grant, 471. 
 Glass V. Whitney, 565. 
 Glasscock v. Balls, 548. 
 Glanvil, Re, Ellis v. Johnson, 786. 
 Glanville v. Strachan, 469. 
 Glover, Re, 648. 
 Glover v. Coleman, 691. 
 (ilover v. Coles, 250. 
 Glyn V. Baker, .'557. 
 Glyn V." East and West India Dock Co., 
 
 442, 443. 
 Goate V. (loate, 308. 
 Gobind Chunder Sein v. Ryan, 483. 
 Goddard v. Harris, 277. 
 Goddard v. Parr, 96. 
 Godfrey, Re, 402. 
 
 (Jodfrey, Re, Godfrey v. ITaulkner, 403. 
 Gott; Re, 678. 
 
TABLE OF CASES, 
 
 XIZ. 
 
 Goff V. Lister, 762. 
 
 GoldBinid v. Tunbridge Well Commissioners, 
 
 689. 
 Good V. Howells, 828. 
 Good V. Walker, 543. 
 Goodall V. Skerratt, 677. 
 Good V. Job, 689. 
 Gooderham v. Toronto, 764. 
 (4ooderham v. Traders Bank, 606. 
 Goodfallow, Re, Traders Bank v. Ooodfallow 
 
 665. 
 Goodhue, Re, 15, 64. 
 Goodland v. Burnett, 655. 
 Goodlock V. Cousins, 330. 
 Goodman v. Boyes, 306. 
 Goodman v. Saltash, 690. 
 Goodwin v. Lee, 658. 
 Goodwin v. Lorden, 277. 
 Goodwin v. Ottawa and Prescott Ry. Co., 
 
 328. 
 Goodwin v. Parton, 308. 
 Goodwin v. Robarts, 557. 
 Goold V. Rich, 328. 
 
 GooroopersadKhoond v. Juggutchunder, 292. 
 Gordon v. Deniaon, 128, 129. 
 Gordon v. Jennings, 501. 
 Gordon v. Union Bank, 463. 
 Gordon v. Wan en, 779, 784. 
 Gorgier v, Mieville, 556. 
 Goring v, London Mutual Ins. Co., 71. 
 GoBsling V. McBride, 276. 
 Gower v. Joj-ner, 65. 
 Gowland v. Garbutt, 560. 
 Goulding v. Deeming, 356, 357, 463. 
 Goudy V. Duncombe, 276. 
 Gough V. Everard, .351, 352. 
 . Gough V. McBride, 695. 
 Gould V. Burritt, 307. 
 Gould V. Erskine, 120. 
 Gould V. Hope, Re, 328. 
 Gould V. Stuart, 15, 60. 
 Gracey, and Toronto Real Estate Co., Re, 
 
 781. 
 Graeme v. Globe Printing Co., 117. 
 Graham v. Devlin, 472. 
 Graham v. Ingleby, 364. 
 Graham v. Mc Arthur, 132. 
 Graham v. Nelson, 333. 
 Graham v. Spettigue, 236. 
 Grand Trunk Ry. Co. v. Hamilton Radial 
 
 Electric Ry. Co., 53, 69. 
 Grand Trunk Ry. Co. v. Jennings, 1.59. 
 Grand Trunk Ry. Co. v. McMillan, 443. 
 Grant v. Cameron, 305. 
 Grant v. Ellis, 674. 
 Grant v. Grant, 829. 
 Grant v . La Banque Nationalo, 559. 
 Grant v. McDonald, 307. 
 Grant v. Norway. 443. 
 Grant v. Van Norman, 462. 
 Grant v. West, 468, 473. 
 Grantham v. Powell, 308. 
 Gray, Re, 287. 
 Gray v. Bond, 688. 
 Gray v. Carr, 443. 
 Gray v. Coughli.-i, 761, 766. 
 Gray v. Hatch, 3S9, 
 
 Gray and Metropolitan Ry. Re, 696, 697. 
 Gray v. Richford, (J57, 674, 676, 678. 
 
 Gray v. Richmond, 391. 
 
 Graydon and Hammill, Re, 697. 
 
 Gravenor v. Watkins, 656. 
 
 Great Northern Ry Co. v. Sanderson, 690, 
 
 697. 
 Great Western Ry. Co. v. Hodgson, 565. 
 Great Western Ry. Co. v. Lutz, 679. 
 Green v. Carlill, 788. 
 Green v. Castleman, 357. 
 Green v. Dunn, 655. 
 Green v. Humphreys, ,306, 307. 
 Green v. Hutt, 131. 
 Green v. McLeod, 95. 
 Green v. Ponton, 767. 
 Green v. Tribe, 654. 
 Green v. Wright, 119. 
 Greene v. Provincial Insurance Co., 114, 
 Greenoueh v. Eccles, 96. 
 Greenwell v. Davison, 656. 
 Greenwood, Re, 653. 
 (Jreenwood v. Francis, 438. 
 Greeves v. West Lidia Co., 44.S. 
 Gregg V. Wells, 480. 
 Gregory v. Hurrill, 297. 
 Gregory v. Pai'ker, 306. 
 Grenfell v. (Jirdlestone, 306. 
 Grenville v. Tylee, 654. 
 Grey, Re, Acason v. (Jreenwood 785. 
 (4rey v. Ball, 763, 766. 
 Greystock v. Barnhart, 767. 
 (Jritfin v. Patterson. 782, 787. 
 Griffith V. Brown, 679. 
 (iriffith V. Crocker, 560. 
 Griffith V. Hughes, 392. 
 Griffith V. St. Catharines Dock Co., 145. 
 Griffith V. Taylor, 1.30. 
 (iriffiths V. Earl Dudley, 162. 
 (Griffiths V. Griffiths, 649. 
 Grimes, Re, 289. 
 (J rim wood v. Moss, 824. 
 Grindiey, Re, Clews v. Grindley, 393. 
 Grogan v. London and M. Ins. Co., 264, 
 Groves v. Wimborne, 151. 
 (luardians of Nottingham v. Tomkinson, 94, 
 (iuinane, Re, 472, 
 Gundry v. Johnston, 466. 
 Gunn V. Bolckow, 481. 
 Gunn V. Burgess, 349. 
 Gunston, Re, 648. 
 Gurney, Re, Mason v. Mercer, 394, 
 (iurofski V. Harris, 463, 468. 
 Gutierrez, Ex parte, 275, 276. 
 Gwiney v. Gwiney, 652. 
 
 Haacke v. Adamson, 128, 132, 
 
 Habergham v. Vincent, 651. 
 
 Hackett, Re, 651. 
 
 Hadley v. Hadley, .547. 
 
 Haggart v. Town of Brampton, 354. 
 
 Hague, Re, Traders' Bank v. Murray, 472. 
 
 797. 
 Haight V, Royal Mail Steam Packet Co,, 166. 
 Haisley v, Somers, '592. 
 Haldan v. Beatty, 407. 
 Hale v. Oldroyd" 692. 
 Hale V. Tokelove, 654. 
 Hales V, Stevenson, 305, 306. 
 
XX. 
 
 TABLE OF CASES. 
 
 Halfpenny v. Pennock, 357. 
 
 Haliiax \ . -Tones, 60. 
 
 Halifax . Western Assce. Co., 60. 
 
 Halkett, Re. 246. 
 
 Hall, Ex parte, 245, 461. 
 
 Hall V. Hranfl, 96. 
 
 Hall V. Brush, 275. 
 
 Hall V. Caldwell, 685. 
 
 Hall V. Collin's Bay Rafting Co., 350, 351. 
 
 Hall V. Fortye. 466. 
 
 Hall V. Oowanlock, 03. 
 
 Hall V. (Jreat Western Ry. Co., 159. 
 
 Hall Mnfg. Co. v. Hazlitt, 363, 364. 
 
 Hall V. Huffan, 391. 
 
 Hall, Doe d. v. Moulsdale, 676. 
 
 Hall V. Swift, 601. 
 
 Hallas V. Rolnnson, .359. 
 
 Halleran v. Moon, 95. 
 
 Halstead v. Bank of Hamilton, 563, 
 
 Halwell V. Wilrnot, 462. 
 
 Hamill v. Henry, 781. 
 
 Ha.nilton, Re, 696. 
 
 Hamilton v. Cousineau, 129, ' 
 
 Hamilton v. (iroesbeck, 151. 
 
 Hamilton v. Harrison, 351, 355. 
 
 Hamilton v. Hector, 286. 
 
 Hamilton v. Mackie, 443. 
 
 Hamilton Powder Co. v. Lambe, 63. 
 
 Hamilton v. Royse, 766. 
 
 Hamilton v. Tigiie; .398. 
 
 Hammersmith and City Rai'way v. Brand, 
 
 15. 
 Hammond, Re, 647. 
 Hammond v. Keachie, 784. 
 Hanunond v. Mcl^ay, 2.50. 
 Hammond v. Smitli, 306. 
 Handley v. Franolii, 275. 
 Hankey v. (i.T.R., 236. 
 Hanmer v. Chance, 687. 
 Hanney v. McEntire, 276. 
 Hannigan v. Burgess, 250. 
 Hanns v. .lohnsion, 117, 131, 152. 
 Hanson v. Lancashire v. Yorkshire Ry. Co., 
 
 148. 
 Harbidge v. Warwick, 686, 
 Harbin v. Darby, 389, 
 Harcourt, Ex parte, 501, 
 Harding, Re, 287. 
 Harding v. Ambler, 587. ^ 
 Harding v. Knowlson, 355. 
 Hardman v. Booth, 481. 
 Hardman v. Child, (596. 
 Hardy v. Ryle, 131. 
 Hare v. Hyde, 277. 
 Hargraft v. Keogan, 658. 
 Hargrave v. Elliott, 470. 
 Hargreavo v. Spink, 479. 
 Hargreaves and Tliompson. Re, 696, 698. 
 Harkin v. Rabidon, 278. 
 Harkness and AUsopp, Re, 778, 
 Harlev's Estate, Re, 396, 
 Harlock v. Ashberry, (i»3. 
 Harman and Uxbridge, etc., Ry. Co., Re, 
 
 608, 
 Harmer v. Priestly, 609, 
 Harn v. Harn, 276. 
 
 Harnden, Re, Harden v. Harnden, 472. 
 Harnwoll v. Parry Sound Lumber Co., 311. 
 Harpellc v. Carroll, 822. 
 
 Harper v, Cuthbert, 438, 610. 
 
 Harrington v. Churchward, 311, 
 
 Harris, Re, 647, 653. 
 
 Harris, Ex parte, 8.30, 
 
 Harris v. Arnott, 116, 
 
 Harris v, Canada Permanent L. k S. Co., 828. 
 
 Harris v. Commercial liank, 349, 366, 
 
 Harris v, De Pinna, 689. 
 
 Harris v. Hamilton, 61. 
 
 Harris v, Mudie, 678, 680. 
 
 Harris v. Tinn, 145. 
 
 Harrison, Re, Ex parte Sherifif of Essex, 431, 
 
 Harrison v. Armour, 763, 
 
 Harrison v, Brega, 767, 
 
 Harrison v. Bush, 97. 
 
 Harrison v. Elvin, 649. 
 
 Harrison v. Harrison, 573, 784, 785. 
 
 Harrison v. London & North- Western Ry. 
 
 Co,, 159. 
 Harrison v, Patterson, 397, 
 Harrison v. Paynter, 329. 
 Harrison y. Prentice, 119, 
 Hart y, McQuesten, 607. 
 Hart y. Ruttan, 265. 
 Hartcup y. Bell, 822. 
 Harter y. Coleman, 587, 
 Hartley y. Mavcock, 805, 
 Hartley y. Wharton, .307. 
 Harty y. Appleby, 762, 766. 
 Haryey, Re, Haryey y. Gillow, 657 
 Haryey y. McNaughton, 464, 
 Haryey y, McNeil, 430, 
 Haryey y. Smith, 593. 
 Haryey y. Walters, 689, 
 Haskill y. Fraser, 796. 
 Hasluck y. Pedley, 823. 
 
 Hassell y. Synto, 651. » 
 
 Hastings, Re Hallett y. Hastings, 788. 
 Haston y. Edinburgh St. Tramways Co., 
 
 146. 
 Hatfield y. Philips. 482. 
 Hatfield y. Thorpe, 651. 
 Hawkos y. HuUmck, 785. 
 Hawkins y. Rutter, 286. 
 Hawkins y. Troup, 543. , 
 Hawksley y. Bradshaw, 115. 
 Kawksworth y. Hawksworth, 289. 
 Hay y. Burke, .544. 
 Haycjon y. Williams, 306, 307. 
 Hayes, Re, 650. 
 Hay lock y. Sparke, 128, 
 Hayn v. Culliford, 444, 
 Head v. Gould. 3(W. 
 
 Headford y. McClary Mnfg. Co., 147, 148 
 Healey v. Crummer, 119. 
 Heaman y. Seale, 460. 
 Hearn y. Phillips, 153. 
 Heaslip y. Heaslip, 132, 
 Heath y. Brewer, 130. 
 Heath ■ P>!gh, 684. 
 Heaton •, . Fiood, 350, .351, 353, 359. 
 Heawood y. Bone, 830. 
 Hebblethwaite y. Hebblethwaite, 94. 
 Hedges y. Tagg, 119, 
 Height y. Wortman, 152. 
 Helby v. Matthews, 363. 
 Helene, The, 441. 
 Helliwell y. Taylor, 128. 
 Heming v. Burnett, 689. 
 
TABLE OF CASKS. 
 
 XXI. 
 
 Hemingway v. Braithwaite, 783. 
 Hemming v. Blanton, 676. 
 Hemming v. Maddick, 96. 
 Henderson v. Bank of Hamilton, 556. 
 
 Comptoir d'Eacompte de Paria, 
 
 Henderson v, 
 
 443. 
 Henderson v 
 Henderson v, 
 Henderson v, 
 
 Dickson, 278. 
 
 Henderson, 676. 
 
 Spencer, 696. 
 Henderson and Toronto, Re, 762, 764. 
 Henderson v. Wilde, 330. 
 Henderson v. Williams, 480. 
 Hendry v. Turner, 496. 
 Henry v. Cook, 250. 
 Hensler, Re, Jones, v. Hensler, 6.58. 
 Hepburn v. Skirving, 655. 
 Herbalt and Chaytor, Re, 697. 
 Herbert v. Herbert, 650. 
 Hermando, Re Hermaiido v. Sawtell, 656. 
 Hermann v. Seneschal, 129. 
 Heseltine v. Siggers, 562. 
 Heske v. Samuelson, 146, 148. 
 Hesketh v. Blanchard, 311. 
 Hesketh v. Ward, 97. 
 Hetherington v. Groonie, 356. 
 Hetherington v. North Eastern Ry. Co. 158. 
 Hetling and Morton's Contract, Re, 392. 
 Heward v. O'Donohue, 678. 
 Reward v. Wolfenden, 329, 3.32. 
 Hewett V. Jerniyn, 632. 
 Hewish, Re. 796. 
 Hewitt, Re, 784. 
 
 Hewitt. Re, Ex parte Levine, 787. 
 Hewsoii, Re, 246 
 Heylioe v. Burge, 311. 
 Heyman v. Flewker, 481, 482. 
 Heywood v. Hay, 53. 
 Hiatt V. Hillman, 610. 
 Hibbard, Re, 287. 
 
 Hick V. Raymond, 115, 542. • 
 
 Hickerson v. Parrington, 371, 460. 
 Hickey v. Stover, 678. 
 Hickin, Ex parte, 501. 
 Hickman, Re, 052. 
 Hickman v. Upsnll, 407. 
 Hicks V. Faulkner, 128, 129. 
 Hicks V. Godfrey, 278. 
 
 Hicks V. New[)ort, Abergavenny and Here- 
 ford Ry. Co. 159. 
 Hicks V. Ross, 119. 
 Hicks V Williams, 685, 805. 
 Higgins V. Bradj', 264. 
 Higgins and Hitchnian Re, 698. 
 Higginbottom, Re, 389. 
 Higgons V. Burton, 481. 
 .Hill, Re, 650. 
 Hill V. Ashbridge, 680. 
 Hill V. Hill, 289. 
 Hill V. Tupper, 687. 
 Hilliard v. Eiffe, 97. 
 Hillock v. Sutton, 674. 
 Hinckley v, Simmons. 652. 
 Hindmarsh, Re, 306. 
 Hindmarsh v. Charlton, 648, 649. 
 Hippins V. Harrison, 4.37. 
 Hirsch v. Coates, 206. 
 Hoare v. Niblett, 785. 
 Hoare v. Silverlock, 1 10. 
 Hobbs Hardware Co. v. Kitchen, 361. 
 
 Hobbs v. Hudson, 93. 
 Hobbs v. Knight, 653. 
 Hobbs v. Ontario Loan and Debenture Co., 
 
 608, 609. 
 Hobbs V. Scott, 472. 
 Hobbs V. Wade, 677, 680. 
 Hobbs V. Bell, 392. 
 Hobson V. Gorringe, 352, 354, 364. 
 Hobson, Re, Webster v. Richards, 781. 
 Ho<lge V. Reg. 51, 55, 61, 62. 
 Hodges V. Croyden Coal Co. 682. 
 Hodges V. Hodges, 785. 
 Hodgins v. Johnston, .350, 359. 
 Hodson V. Dancer, 666. 
 Hogaboom v. Graydon, 353. 
 Hogan V. Aikman, 119. 
 Hoig V. Gordon, 798. 
 Holbird v. Anderson, 461. 
 Holbyn, Re. 243. 
 Hollord V. Hankinson, 692. 
 Holgate, Re, 649. 
 Holland v. Clark, 681. 
 Holland v. Hodgson, 354. 
 HoUeran v. Bagnell, 158, 160. 
 Holliday v. Jackson, .544. 
 Hollingshead, Re, 308. 
 Hollins V. Verney, 691. 
 Hollyoak, Ex parte, 501. 
 Hollywood V. VVaters, 766. 
 Hoi man v. (Jreen, .55, 01. 
 Holmes, Re, 244. 
 Holmes v. Durkee, 545. 
 Holmes, Re Fallows v. Holmes, 785. 
 Holmes v. Mackrell, .305, 307. 
 Holmes v. Millage, 402. 
 Holmes v. Moore, 762. 
 Holt v. Carmichael, 353. 
 Holt V. Genge, 648. 
 Holt V. Holt, 658. 
 Holtby V . Hodgson, 784, 787. 
 Holton V. McDonald, .3.33. 
 Holyland v. Lewin, (i56. 
 Homan v. Andrews, 683. 
 Hone V. Boyle, 557. 
 Honsberger, Re, 398. 
 Hood-Barrs v. Cathcart, 785, 786. 
 Hood-Barrs v. Heriot, 785. 
 Hood V. Sangster, 291. 
 Hoofstetter v. Rooker, 702. 
 Hooker v. Morrison, 079, 681. 
 Hoole v. Smith. 006.. 
 Hooper, Re, 390. 
 
 Hooper v, Columbia R. R. Co., 146. 
 Hooper v. Holme, 150. 
 Hoover v. Craig, 234, 250. 
 Hoover v. Wilson, 397, 398. 
 Hope, Re, 277. 
 Hope V. Grant, 464. 
 Hope V. Hope, 280, 780. 
 Hope V. May, .359, 462, 471. 
 Hope V. White, 822, 829. 
 Hopkins, Re, 389. 
 
 Hopkins, Re Barnes v. Hopkins, 797. 
 Hopkins v. Hopkins, 051, 676, 688. 
 Hopkinson v. Lovering, 822, 823. 
 Hopper, Re, 246. 
 Home, Ex parte. Re Home, 788. 
 Home V. Featherstone, 648. 
 Homer v. Kerr, 779, 786. 
 
^i 
 
 zxu. 
 
 TABLE OF CASES. 
 
 Horner v, Swanii, 591. 
 
 Hornsby v. Lee, 778. 
 
 Homsey Local Board v. Monarch Invest. 
 
 Bldg. Socy., 68,3. 
 Horsey v. Steiger, 824, 825. 
 Horsfiill V. BoiHseau, .353, 3.U, 
 Horsford, Re, 047, (i53. 
 Horton v. Humphries, 679. 
 Hortoii V. Leeds, (J.W. 
 Hoskins, Re, 470. 
 Hotchkin, Re, 402. 
 Houghton V. Bell, 68{.. 
 House V. House, 305. 
 Houston, Re, 245. 
 
 Houston, Re, Houston v. Houston, 609. 
 How V. Earl Winterton, 393. 394. 
 Howard, Re, 97. 
 Howard v. Bennett, 150. 
 Howarri v. Castle, 591. 
 Howard v. Harris, 606. 
 Howard v. Herrington, 128. 
 Howe, Re, .55. 
 Howe V. Finch, 149. 
 Howell, Re, 823. 
 Howell V. Armour, 1,30. 
 Howell V. Listowel B. & P. Co., 829. 
 Howells, Re, Ex parte Mandlebarg & Co. , 822. 
 Howereen v. Bradburn, 297. 
 Howes V. Lee, 332. 
 Howe's Trusts Co., 658. 
 Howitt V. Gzowski, 352. 
 Howkins v. Howkins, 276. 
 Hubbard, Ex parte, 352. 
 Hubbard v. Goodley, 235. 
 Hubbard v. Lees, QUO. 
 Hubbersty v. Ward, 443. 
 Huber V. Crookall, 115. 
 Huckvale, Re, 647. 
 Hudson V. McRae, 235. 
 Huggins V. Law, 287. 
 Hughes, Re, 646. 
 
 Hughes, Re, Ex parte Hughes, 466. 
 Hughes V. Coles, 677, 682. 
 Hughes V. Field, 266. 
 Hughes V. Little, .356. 
 Hughes V. Pake, 128. 
 Hughes V. Rees, 389. 
 Hulme V. Hulme, 389. 
 Hulme V. Tenant, 778, 785. 
 Humble v. Mitchell, ,562. 
 Hume, Re, Forbes v. Hume, 573. 
 Hume V. Lopes, 402. 
 Humphreys v. Jones, 305. 
 Hunt, Re, 648. 
 Hunt V. Bishop, 589. 
 Hunt V. Goodlake, 115. 
 Hunt V. Hespeler, 690, 691. 
 Hunt V. Hunt, 647, 787. 
 Hunt V. Taplin, 291. 
 Hunnings v. Williamson, 93. 
 Hunter v. Gilkison, 129. 
 Hunter v. Mountjoy, 276. 
 Hunter v. Nockolds, 682. 
 Hunter v. Patterson, 390, 404. 
 Hunter v. Young, 396. 
 Huntingdon v. Attrill, 94. 
 Hurst V. Parker, 304. 
 Hnskinson v. Lawrence, 249. 
 Hutcheson v. Hammond, 655. 
 
 Hutchings to Burt, Re, 785. 
 Hutchinson v. Lowndes, 129. 
 Hutchison v. Jkiwes, 489. 
 Hutton V. Brown, 827, 8.36. 
 Hutton V. Federal Bank, 313. 
 Hyde v. Watts, H15. 
 Hyden v. Williamson, 333, 588. 
 Hyden v. Lindsay, 289. 
 Hyman v. Cuthbertson, 464. 
 Hyman v. Howell, 473. 
 
 Ibbotson V. Henry, 1.30, 249, 250. 
 
 Imperial Land Co., Re, 533. 
 
 Imperial Land Co., Re, Ex parte Colborne, 
 
 557. 
 Inch V. Simon, .355. 
 Ind Coope v. Emerson, 610. 
 Inglis V. Haigh, 297. 
 Ingraham v. Cunningham, 275. 
 Ingram v. Inglis, 307. 
 Innes v. Ferguson, 686. 
 Institute of Patent Agents v. Lockwood, 15. 
 Irish Land Commission v. Grant, 674. 
 Irvine v. Macauley, 676. 
 Irving v. Wilson, 130. 
 Irwin v. Bank of Montreal, 407. 
 Irwin v. Dennystown Forge Co., 146. 
 Irwin v. Toronto General Trusts Co., 394. 
 Israel v. Leith, .589, 761, 762, 764. 
 Isaacs V. Chinery, 246. 
 Isaacson, Re, Ex parte Mason, 364. 
 Island V. Pitcher, 132. 
 Ivens V. Butler, 283. 
 Ivey V. Knox, 461, 462. 
 
 Jackson, Ex parte, 609. 
 
 Jackson, Re, 311. 
 
 Jackson v. Ogg, 808. 
 
 Jackson v. Petrie, 276. 
 
 Jackson, Re, S"nith v. Sibthorpe, 608. 
 
 Jackson v. Thomason, 96. 
 
 Jackson and Woodburn, Re, 696, 
 
 Jacobs V. Jacobs, 277. 
 
 Jacques Cartier Bank v. Reg. 557. 
 
 James v. Hawkins, 1 19. 
 
 Jamieson v. Coulter, 688. 
 
 Jamieson v. Russell, 146. 
 
 Jarman v. Hale, 675. 
 
 Jarvis v. Clark. 313. 
 
 Jarvis v. Toronto, 763. 
 
 Jaullery v. Britten, 481. 
 
 Jay V. Budd, 265. 
 
 Jay V. Robinson, 784. 
 
 Jefferys v. Boosej', 50. 
 
 Jellett V. Wilkie, 761. 
 
 Jenkins v. Jones, 589. 
 
 Jenkins v. Miller, Re, £35. 
 
 Jenkins v. Usborne, 481. 
 
 Jenkyns v. Gaisford, 648. 
 
 Jenner v. Finch. 648. 
 
 Jennings v. Moss, 465, 
 
 Jephson, Re, 244. 
 
 Jerrayn v. Tew, 291. 
 
 Jessel v. Bath, 443, 444. 
 
 Jewan v. Whitworth, 483. 
 
TABLE OF CA6ES. 
 
 XXIII. 
 
 Jobson V. Palmer, 389. 
 
 Jochumsen v, Suffolk Savings Bank, 404. 
 
 Johnson, Ro, 650. 
 
 Johnson v. Credit Lyonaise Co., 480, 481. 
 
 Johnson v. Ewart, 115. 
 
 Johnson, Ex paite, 607, 608. 
 
 Johnson, Ex parte, Ro Chapman, 464. 
 
 Johnson v. Gallagher, 779, 78.S. 
 
 Johnson v. Hope, 460, 463. 
 
 Johnson v. Johnson, 6.57. 
 
 Johnson v. Martin, 543. 
 
 Johnston v. Newton, 388. 
 
 Johnson v. Oliver, 680, 684. 
 
 Johnson, Re, Sly v. Johnson 298. 
 
 Johnson v. Consumers' (las Co., 15. 
 
 Johnson v. Dulmaco, 474. 
 
 Johnston v. (Jreat Western Ry.Cc, 159, 160. 
 
 Johnston v. Henderson, 483. 
 
 Johnston v. Jones, 646. 
 
 Johnston v. Ogg, .395. 
 
 Johnston v. Poyntz, 68. 
 
 Johnaton v. Reid, 763. 
 
 Johnston v. Sowden, .332. 
 
 Johnston v. Stear, 560. 
 
 Johnstone v. Mitchell, 147. 
 
 Jones, Re, 246, 469, 647. 
 
 Jones V. Burford, 149. 
 
 Jones V. Bright, 680, 681. 
 
 Jones V. Brown, 304. 
 
 Jones V. Canada Central Ry. Co., 64. 
 
 Jones V. Cdrter, 824. 
 
 Jones V. Cowden, 761. 
 
 Jones V. Foley, 837. 
 
 Jones V. Gallow, 93, 94, 95. 
 
 Jones V. Gooday, 131. 
 
 Jones V. Grace, 129. 
 
 Jones, Re Greene v. Gordon, 656. 
 
 Jones V. Gress, 275. 
 
 Jones V. Henderson, 349. 
 
 Jones V. Jones, 93. 
 
 Jones V. Lewis, 403. 
 
 Jones V. McGrath, 588, 693. 
 
 Jones V. Mackie, 116. 
 
 Jones V. Mills, 836. 
 
 Jones V. Mitchell, 655. 
 
 Jones V. Montgomery, 822. 
 
 Jones V. Rose, 277. 
 
 Jones V. Ware, 349, .354. 
 
 Jordan, Re Kino v. Picard, 785, 786. 
 
 Joseph V. Lyons, 359. 
 
 Joy V. Campbell, 387. 
 
 Joyce V. Hart, 292. 
 
 Julius V. Oxford, 14. 
 
 Junkin v. Davis, 97. 
 
 Jupp, Re, Jupp V. Buckwell, 782. 
 
 Jupp V. Powell, 308. 
 
 Jury V. Jury, 276. 
 
 E. 
 
 Kaatz V. White, 826. 
 Kaines v. Stacey, 313. 
 Kaltenbach v. Lewis, 483. 
 Kalus V. Hergert, 464. 
 Kane v. Mulvains, 1 16. 
 Kay, Re, Mosley v. Kay, 393. 
 Kearney v. Nichols, 145. 
 Kearsley v. Philips, 609. 
 Keefe v. McLennan, 64. 
 
 Keen v. Cwld, 633. 
 
 Keen v. Millwall Dock Co., 153. 
 
 Keenan, Re, 331. 
 
 Ketfer v. Keffer, 676. 
 
 Keith V. Burke, 544. 
 
 Keith V. National Telephone Co. , 825. 
 
 Kelly, Re, 245, 471. 
 
 Kelly V. Archibald, 1.30. 
 
 Kelly V. Bull, 119, 120. 
 
 Kelly V. Glebe Sugar Co., 151. 
 
 Kelly V. Wolff, 828. 
 
 Kellar v. Tache, 287. 
 
 Kelsey v. Rogers, 349. 
 
 Kem ". Falk, 442. 
 
 KendaU v. Hamilton, 391, 483, 496. 
 
 Kennedy, Re, 287. 
 
 Kennedy v. Bumess, 128. 
 
 Kennedy v. Green, 588, 607. 
 
 Kennedy v. Hall, 1.30. 
 
 Kennedy v. May, 286. 
 
 Kennedy v. Patterson, 330. 
 
 Kennedy v. Purcell, 66, 472, 
 
 Kennedy v. Thomas, 548. 
 
 Kennedy v. Toronto, 64. 
 
 Kennett, Re, 654. 
 
 Kennin v. Mac(ionald, 250. 
 
 Kent V. Kent, 677, 779. 
 
 Kerr v. Little, 692. 
 
 Kerner v. Toronto, Hamilton & Buffalo Ry, 
 
 Co., 69. 
 Kerr v. Roberts, 358. 
 Kerr v. Stripp, 785, 787. 
 Kerr v. Styles, 331. 
 Kerry v. James, .359, 464, 471. 
 Kershaw, Re, 574. 
 Kershaw's Trusts Re, 396. 
 Kervin v. Canadian Cotton Mills Co., 147. 
 Kesterman v. McLellan, 264, 276. 
 Kettlewell v. Watson, 587, 588. 
 Keys v. Kirkputrick, 471. 
 Kibble V. Fairthome, 683. 
 Kidd, Re Brooman v. Withall, 658. 
 Kiddle v. Lovett, 149. 
 Kiely v. Kiely, 15. 
 Kilber v. Sneyd, 388. 
 Killick, Re, 648. 
 Kimball V. Smith, 119. 
 Kimber v. Press Ass'n, 116. 
 Kimpton, Re, 648. 
 Kinloch v. Neville, 687. 
 King, Re, 798, 305. 
 King, Ex parte, 464. 
 King V. Duncan, 461. 
 King v. Dupus, 291. 
 King V. Hamlet, 592. 
 King V. Hilton, .387. 
 King V. Hoare, 496. 
 King V. Lucas, 783. 
 Kingan v. Hall, 278. 
 Kingsford v. Merry, 480, 481. 
 Kingsford v. Oxenden, 542. 
 Kingsmill v. Bank of Upper Canada, 561. 
 Kingsmill v. Warriner, 265. 
 Kingston Building Society v. Rainsford, 763, 
 
 765. 
 Kinnaird v. Trollope. 606. 
 Kinnard v. Webster, 437. 
 Kinnear v. Aspden, 822, 823. 
 Kinney v. Deidman, 62, 56. 
 
XXIV. 
 
 TABLK OF CASES. 
 
 Kinsman v. Rouse, 685. 
 
 Kirby v. Simpson, 130. 
 
 Kirk V. Long, 119. 
 
 Kirkland v. Briancourt, 824. 
 
 Kirkwood v. Smith, 541, 547. 
 
 Kitchen v. Murray, 761. 
 
 Kitching v. Hicks, 349. 
 
 Kite V. London Tramway Co., 148. 
 
 Kleinworth v. Comptoir National D'Es- 
 compte de Paris, 542, 547. 
 
 Klinck V. Ontario Industrial Loan & Invest- 
 ment Co., 608. 
 
 Kloepfer v. Gardner, 466. 
 
 Knight, Re, 236. 
 
 Knight V. Barber, 562. 
 
 Knight V. Medora, 2.36. 
 
 Knott V. Farren, 307. 
 
 Knox V. Gye, 297. 
 
 Knox V. Mackinnon, 387, 402, 403, 
 
 Knox V. Meldrum, .354. 
 
 Koch V. Wideman, 6.32, 697. 
 
 Konkle, Re, 779. 
 
 Kops V. Reg., 93. 
 
 Kough V. Price, 357. 
 
 Kraemer v. Glass, .351, 779. 
 
 Kraemer v. Waysmark, 160. 
 
 Kyle V. Barnes, 264. 
 
 La Banque de Hochelaga v. Waterous En- 
 gine Works Co., .363. 
 
 La Bancjue du Peuple v. Troitier, 291, 292. 
 
 Labatt v. Bixell, 461, 462, 465. 
 
 Labelle v. 15arl)eau, 291. 
 
 Laborgov. E(iuitable Life Asace. Society, 291. 
 
 Lacave v. Credit Lyonnais, .'542, .'547. 
 
 Lachance v. La SociuLe de Piets du Place- 
 ments de Quebec, 291. 
 
 Ladowcer and Suiter, Re, 264. 
 
 Lady man v. Grave, 68(5, 691. 
 
 Lafone V. Smith, 115. 
 
 Laing v. Ontario Loan and Savings Co., 608. 
 
 LaircT v. Briggs, 692. 
 
 Laird v. Paton, 761. 
 
 Lake v. Beniis, 119. 
 
 Lake v. Biggar, 250. 
 
 Lake '. . Brutton, 437. 
 
 Laki'i V. Lakin, 407. 
 
 Land) v. Attenborough, 481. 
 
 Lamb v. Munster, 93. 
 
 Lambert, Re, 647. 
 
 Land)ert'8 Estate, Re, Stanton v. Lambert, 
 779. 
 
 Lambton, Ex parte, 561. 
 
 Lambton v. CoUingwood, "91. 
 
 Lamley v. Mayor of East Rotford, 131. 
 
 Lampman v. Davis, 306. 
 
 Lampman v. Gainsborough, 160. 
 
 Lancaster V. Rycknian, 115, 117. 
 
 Lancaster S, S. v. Sharp, 443. 
 
 Lander and Bayley, il(!, 6i)6, 097. 
 
 Landi Allotment Co., Re, 392, 393. 
 
 Lane, Re, 287. 463. 
 
 Lang V. Smyth, 556, 557. 
 
 Lang V. Thompson, 497. 
 
 Langdale v. Briggs, 655. 
 
 Langford v. Gascoyne, 387. 
 
 Langford v. Kirkpatrick, 131. 
 
 Langley v. Meir, 470. 
 
 Lanwarne, Re, 244. 
 
 Lariviere v. School CommissionerB for Three 
 
 Rivers, 292. 
 Larken's Trust, Re, 396. 
 Larkin v. Marshall, 783. 
 Larsen v. Nelson and Fort Sheppard R'y. 
 
 Co., 69. 
 Latch v. Bright, 763. 
 Latham v. Barber, 562. 
 I^timer v. Neate, 607. 
 Lavery and Kirk, Re, 697. 
 Lawlor, Re, 244. 
 Lawrance v. Norreys, 674, 677. 
 Laws, Re, Laws v. Laws 95, 788. 
 Lawson v. Laidlaw, 779, 780, 783, 787. 
 Lawson v, Langley, 691. 
 Lawson v. McGeoch, 462. 
 Lay, Re, 650. 
 Laybourn v. Fridley, 675. 
 Lazier v. Henderson, 470. 
 Lea V. Charrington, 129. 
 Leach, Re, 653. 
 Leach v, Shaw, 25C, 
 Leacocke, Re, 245. 
 Leak v. Drifiiekl, 783. 
 Learoyd v. Robinson, 483. 
 Learoyd v. Whitely, 402, 403. 
 Leask v. Scott, 444. 
 T,eatt v. Vine, 23.5. 
 Lebel v. Tucker, 546. 
 Lichmere v. Fletcher, 307. 
 Leduc V. Ward, 442. 
 Lee v. Butler, 363. 
 Lee v. Hopkins, 786. 
 Lee V. Howes, 3.32. 
 Lee v. Wilmot, 3(M 305. 
 Leech v. Leech, 7o6. 
 Leeds Bank v. Walker, 546. 
 Lees v. Sanderson, 387. 
 Lee's Trust, Re, 396. 
 Leese, Re, 650. 
 
 Leeiion v. License Commissioners, 128. 
 Leete v. Hart, 129. 
 Legg V. Evans, 330. 
 
 Leggott V. Great Northern Ry. Co., 167. 
 Le Heup, Ex parte, 245. 
 Leigh, Re, 6.53. 
 Leighton v. Medley, 825. 
 Leitch V. McLellan, 796. 
 Leitch V. Molson's Hank, 396. 
 Leiahman v. Cochrane, 97. 
 Lei trim v. Pinery, 246. 
 Lellis V. Lambert, 788. 
 Lemon v. Lenum, 472. 
 Lempriere v. Laiigo, 309. 
 Lennox v. Star Printing Co., 117. 
 Lenoir v. Ritchie, 65. 
 Lepard v. Vernon, .300. 
 Leprohon v. Ottawa, 58. 
 Les Ecclesiaatiques de St. Sulpioe de Mon- 
 treal v. Montreal, 292. 
 L'Esporanno v. Duchene. 119. 
 Lett v. St. Lawrence and Ottawa Ry. Co., 
 
 1.57, 168, 159. 
 Leveille, Ex parte, 62. 
 Leverington, Re, 649. 
 Levy V, Abercorris Co. , 693, 
 Levy v. Lawson, 116. 
 
TABLE OF CASES. 
 
 XXV- 
 
 Lewin v. Wilson, 683, 684. 
 
 Lewis, Rt, 653, 654. 
 
 Lewis V. Brown, 464. 
 
 Lewis V. Clay, 642, 543. 
 
 Lewis V. Clement, 1 16. 
 
 Lewis V. Davis, 607 
 
 Lewis V. Lewis, 649. 
 
 Lewis V. McKee, 442, 443. 
 
 Lewis V. Price, 690. 
 
 Lewis V. Teale, 130, 249. 
 
 Lewis V. Thomas, 677. 
 
 Lewis and Thome, Re, 391, 697. 
 
 Lewis V. Walter, 116. 
 
 Ley V. Peter, 680. 
 
 License Commissioners of Frontenac v 
 
 County of Frontenac, 61, 68. 
 License Commissioners of Prince Edward v 
 
 County of Prince Edward, 68. 
 Life Assn. of Scotland v. Siddal, 684. 
 Life Assn. of Scotland v. Walker, 397. 
 Light V. Hawley, 351, 467. 
 Liglitfoot V. Cameron, 277. 
 Lilford V. Keck, 655. 
 Lilley v. Harvey, 236. 
 Lindsay v. Robertson, 837. 
 Lindsey, Re, 561. 
 Lindspy v. Toronto, "^67. 
 Linfoot V. Pockett, 313. 
 Linford v. Fitzroy, 128. 
 Linsell v. Bonsor, 307. 
 
 Linton v. Imperial Hotel Co., 470, 823, 824. 
 Li(iui(lators Estate Co. v. Willoughby, 607. 
 Liijuidators of Maritime Bank v. Receiver 
 
 General of New Brunswick, 72. ' 
 
 Li(iuor Prohibition Appeal, 53. 
 Lister v. Northern Ry. Co., 330. 
 Lister v. Perrynian, 129. 
 Lister v. Pickford, 684. 
 Little V. Aikman, 651. 
 Little V. Billings, 657. 
 Little, Re, Harrison v, Harrison, 785. 
 Llado V. Morgan, 565. 
 Lloyd V. Attwood. 763. 
 Lloyd V. Banks, 7()ti. 
 Lloyil V. Jones, 235. 
 Lloyd V. Maund, 304, .307. 
 Lloyd V. Roberts. 649. 
 Lock V. Pearcel, 826, 
 Lockart v. Hardy, 560. 
 London and Canadian Loan and Agency Co, 
 
 V. Uuggin, .558, 
 London and Canadian Loan and Agency Co. 
 
 V. fJraliani, 501. 
 Loiidi Chartered Bank of Australia v. l^em- 
 
 priere, .333, 779. 
 London Corporation v. Pewtorers Co., 690. 
 London and County Banking Co. v. Goddard, 
 
 390. 
 ' c.idon Joint Stock Bank v. Simmons, 568, 
 
 /•93. 
 Loudon and River Platte Bank v. Bank of 
 
 Liverpool, 542, 543. 
 London and Southern Counties Co. v. Clamp, 
 
 545. 
 Long V. Carter, 470. 
 Long V. Hancock, 464. 
 Longliio V. Sanson, 836. 
 Longueuil Navigation Co. v. Montreal, 55, 60. 
 Lorenz, Re, 396. 
 
 Loucks V. McGloy, 359. 
 
 Lough V. Coleman, 130. 
 
 Loughead v. Knott, 655. 
 
 Lovegrove, Ex parte, 473. 
 
 Lovell V. Beaucnamp, 467. 
 
 Lovell v. Gibson, 333. 
 
 Low v. Gemley, 388. 
 
 Lowe V. Carpentsr, 690, 691. 
 
 Lowe V. Fox, 788. 
 
 Lowell V. Bank of Upper Canada, 329. 
 
 Lowndes v. Garnett and Moxley Gold Mining 
 
 Co., 308. 
 Lowry v. Derham, 784, 785. 
 Lowry v. Fulton, 388. 
 Lowther v. Heaver. 588. 
 Lucas, Re, 823. 
 Lucas v. Denison, 681. 
 Lucas V. Dixon, 307. 
 
 Lucas V. Hamilton Real Estate Assn. , 698. 
 Luckhardt, Re, 796, 797. 
 Lumley Re, Ex parte Hood-Barrs, 785. 
 Lumley v. Timms, 779. 
 L' Union St. Jacques de Montreal v. Belisle, 
 
 56, 57, 58, 68. 
 Lutscher v. Comptoir do Eacompte de Paris, 
 
 443. 
 Lyell v. Kennedy, 675, 681. 
 Lyman v. Bank ot Upper Canada, 559. 
 Lynch v, Canada N. W . Land Co. , 56, 60, 61. 
 Lynch v. O'Hara, 796. 
 Lyon and Carroll, Re, 698. 
 Lyon V. Tiffany, 305. 
 Lynes, Re, Ex parte Lester, 787. 
 Lynes v. Snaith, 675. 
 
 M. 
 
 MacArthur v. MacDougall, 643. 
 
 Macaulay v. Runiball, 266. 
 
 MacDonald, Re, 308. 
 
 Mac Donald v. Balfour. 467, 473. 
 
 MacDonald v. Bullivant, 607. 
 
 MacDonald v. Crombie, 461. 
 
 MacDonald, Re Dick v. Frasor, 306. 
 
 MacDonald v. Elliott, 16. 
 
 MacDonald v, (Jalivun, 291, 292. 
 
 MacDonald v. (jaunt, 351. 
 
 MacDonald v. Cieorgian Bay Lumber Co. , 466. 
 
 Macdonald v. McCall, 4(i4. 
 
 Macdonald v. Macdonald, 16, 297, 333, 682, 
 
 683. 
 MacDonald v. Worhl Newspaper Co., 117. 
 Macdonell v. Purcell, 654. 
 MacDougall v. Knight, 116. 
 Macdougall v. Paterson, 264. 
 Macfie v. Hutchinson, 501. 
 Macfie V. Pearson, 266, 431. 
 MucGregor v. Galworthy, 131. 
 MacKay v. (ioodson, 277. 
 Ma(!Kay v. Manchester Press Co., 116. 
 MacKenzie Trusts, Re, 402. 
 Mackintosh v. Pogose, 464. 
 Macleod v. Att'y Gen. New South Wales, 
 
 50, 57. 
 Macnamara v. McLay, 767. 
 MacNaughton v. Wigg, 827. 
 Maciiee v. Oorst, 483. 
 Macrae v. Clarke, 278. 
 McAlmon v. Pine, 66. 
 
XXVI. 
 
 TABLE OF CASES. 
 
 Mc Arthur v. Kagloson, 678. 
 
 McArthur v. Northern and Pacific Junction 
 
 Ry. Co., 53, 54. 
 McAuley v. Allen, .358. 
 McAuliffe V. Fitzsinimons, 675. 
 McBean v. Bell, 351. 
 McBride v. Gore District Mutual Fire Ins. 
 
 Co., 565. 
 McCabe v. Thompson, 331. 
 McCall V. Macdonald, 471. 
 McCall V, Wolff, .353, 564. 
 McCann v. Chisholni, 688. 
 McCarter v. McCarter, 387. 
 McCauley, Re, 574. 
 McClanagban v. St. Ann's Mutual Bldg. 
 
 Socy., 53. 
 McCombie v. Davies, 482. 
 McColl V. Black, 146. 
 McCord V. Camniell, 150. 
 McCormack v. Bervey, 308. 
 McCrae v. Molsons Bank, 564. 
 McCrae v. White, 461. 
 McCready v. Higcins, 780. 
 McCullough V. Sykes, 297. 
 McDiarmid v. Hughes, 560, 573, 676. 
 McDonagh v. Jephson, 430. 
 McDonald, Re, 287. 
 McDonald v. Cummings, 371, 461. 
 McDonald v. Davidson, 397, 
 McDonald v. Elliott, 683. 
 McDonald v. Forrestal, 249. 
 McDonald v, McDonell, 331. 
 McDonald v. McKinnon, 95. 
 McDonald v. Peck, 825, 828. 
 McDonald v. Reynolds, 329, 332. 
 McDonald, Doe d., v. Twigg, 98, 804. 
 McDonnell v. Bldg. and Loan Assn. , 608. 
 McDonnell v. Kelly, 275. 
 McDougall V. Campbell, 54, 
 McDougall V. Peterson, 128. 
 McDougall V. Union Naviration Co. , 55, 63. 
 McDowell V. McDowell, 330. 
 McDowell and Palmerston, Re, 61, 66. 
 McEvoy V. Chine, 3.32. 
 McEwan v. Smith, 481. 
 McGann v. Keyes, 95. 
 McGarry v. White, 787. 
 McGee v. Smith, ,355. 
 MoGiffin V. Palmer's Ship Bldg. Co., 148. 
 McGill V. Peterborough, 14. 
 McGill V. Walton, 129. 
 McGloherty v. Gale Mnfp. Co., 147. 
 McGoey v, Leamy, 291. 
 McGrath, Re, 288. 
 McGregor v. Koiller, 678. 679. 
 McGregor v. McNeil, 24!». 
 McGregor v. Thwaitos, 116. 
 MoGuinnoss v. Dafoe, 128, 129, 130. 
 McGuirc V. Cairnp, 147. 
 Mclllnnirray and .Jenkinn, Re, 764, 
 Mcintosh V, Tyhurst. 110, 
 Mcintosh V, Wood, 796. 
 Mclntyre, Re, 277. 
 Mclntyre v. Brown, 21b. 
 Mclntyre v. Canada Co.. 681. 
 Mclntyre v. Crocker 256, 
 Mclntyre v. Union Bank of Lower Canada, 
 
 355, 
 McKay v. Bruce, 674, 688, 761. 
 
 McKay v, Cummings. 130. 
 McKay v, Burley, 120, 
 McKay v, Martin, 14, 2.^'>. 
 McKcchnie v, McKeyes. 689, 690, 691, 
 McKenzie v. Reed, 275 
 McKenzie v. Russell, 264, 
 McLachlin > Usborne, :«9, 390, 
 McLaren v. raser, 763. 
 McLaren v. .verr, 824, 
 McLaughlin v, Moore, 94, 
 McLaughlin v, Schaefer, 234, 235, 
 McLean v, Ainslie, 120. 
 McLean v. Allen, 430. 
 
 McLean v,Bufralo&L».keHuronRy,Co,, 444. 
 McLean v. Burton, 762- 
 McLean, Doe d v, Manahan, 762, 
 McLean v, Fleming, 443. 
 McLean v, Pinkerton, ).5, 351, 356, 
 McLeish v, Howard, 130, 
 McLellan v, McKinnon, 129, 
 McLennan v, Hdward, .397, 
 McLennan v, McDonald, 766, 
 McLeod V, Enigh, 787, 788, 
 McLeod V. McNab, 654, 
 McLeod V. Noble, 71. 
 McLeod V, Truax, 765, 
 McLeod V, Power, 496, , 
 
 McLeod V, Wadland, 761, 765, 
 McMahon v, McDougall, 3,52, 
 McManamy v, Sherbrooke, 62, 
 McManns v. Hay, 149, 
 McMartin v, Hurlburt, 328, 
 McMartin v. McDougall, 357, 368. 
 McMaster v. Clare, 461, 
 McMaster v, Demmery, 606, 
 McMaster v. Garland, 352, .3.53, 
 McMaster V. Phipps, 762, 763, 
 McMichael v, Willtie, 784, 
 McMicking v. Gibbons, 297, 682, 
 McMillan v, McMillan, 391, 
 McMillan, Re McMillan v, McMillan, 632. 
 McMillan v. Munro, 766, 
 McMuUen v, Vannatto, 824, 826, 
 MoMurdo, Re, 650. 
 McMurty v. Monro, 234, 2.36. 
 McMyn, Re Lightbourn v, McMyn, 438, 
 McNab, Re, 646, 697. 
 McNab V, Adamson, 688, 
 McNabb v, Oppenheimer, 276, 
 McNally v. Church, 804. 
 McNaughton v. Webster, 330, 
 McNeil V, Haines, 2.36, 
 McPhaden v. Bacon, 275, 387. 
 McPherson v, McPherson, 96. 
 McQuade v, Dixon, 148, 
 McQuarrie v. Brand, 542, 
 McRoberts v, Steinoff, 460. 
 McShane v. Baxter, 147. 
 McTavish v. Rogers, 471. 
 McVeagh, Re, .397. 
 McVeain v. Ridler, 275, 276. 
 Mo Vicar, Re, 052, 
 MoWhinney v, McQuaid, 96. 
 Macara v. Dines, 
 Macara v, Moorish, 2,36, 
 Macklin v, Dowling, 608, 695, 
 Madden v, Hamilton Iron Forging Co,, 149 
 Madden v, Kensington Vestry, 131. 
 Maddocks, Re, 648, 649, 
 
TABLE OF CASES. 
 
 XXVll. 
 
 Madell v. Thomas, 352. 
 
 Mader v. McKinnon, 371. 
 
 Magann v. Bonner, 837. 
 
 Magann v. Ferguson, 468, 470. 
 
 Magdalen Hospital v. Knotts, 675. 
 
 Magee v. Gilmour, 836. 
 
 Magees, Re, 289, 
 
 Maher v. Portland, 66. • 
 
 Mahon V. Nicholls, 237. 
 
 Mail Printing Co. v. Clarkson, 468. 
 
 Mair v. Cully, 95. 
 
 Malcolm v. Hunter, 687. 
 
 Malcolm v. Leys, 235. 
 
 Malen, Re, 649. 
 
 Maley, Re, 653 
 
 Malletto V. Montreal, 55, 62. 
 
 Mallindine, Re, 632. 
 
 Mander v. Roj'al Canadian Bank, 558. 
 
 Mandeville v. Nicholl, 765. 
 
 Manitoba Statutes, Re, 70, 
 
 Mann, R ., 648. 
 
 Mann v. Perry, 472. 
 
 Manning v. Mills, 95. 
 
 Manning v. Wasdale, 688. 
 
 Mansfield v. Baddeley, 152, 
 
 Mara, Re, 765. 
 
 Mara v. Brown, 392, 394, 402, 
 
 March, Re, Mander v, Harris, 782. 
 
 Marcus, Re, Marcus v. Marcus, 652. 
 
 Margary v. Robinson, 646. 
 
 Markham v. Stanford, 364, 
 
 Markwell's case, .396. 
 
 Mark wick v. Cardinghani, 681. 
 
 Marlborough v. Osborn, 821. 
 
 Marley v. Osborne, 150. 
 
 Marsclen v. Wardle, 236. 
 
 Marseilles Extension Ry. & Land Co., Re 546. 
 
 Marsh v. Boulton, 128. 
 
 Marsli V. Conquest, 2(54. 
 
 Marsh v. Dewes, 2.35. 
 
 Marsh, Doe d. v, Scarborough, 655. 
 
 Marsh and Earl Granville, Re, 695, 697. 
 
 Marsh v. Webb, 588. 
 
 Marshall, Re, 648. 
 
 Marshall v. Gingell, 657. 
 
 Marshfield, Re, Marshfield v. Hutchings, 682 
 
 Marshall v. Taylor, 679. 
 
 Martin, Re, 631, 632. 
 
 Martin 
 Martin v, 
 Martin v, 
 Martin v, 
 Martin v 
 Martin v 
 Martin v 
 Martin v. 
 Martin v 
 Martin v, 
 Martin v, 
 
 Bearman, 587, Oil. 
 
 Connah'sQuay Alkali Co., 151. 
 
 Hall, 606. 
 
 Hutchinson, 821. 
 
 McAlpine, 465. 
 
 McMullen, 468, 469, 
 
 Magee, 631. 
 
 Reid, 560. 
 
 Sampson, 351, 355. 
 
 Travellers Insce. Co., 96. 
 
 Treacher, 93. 
 Martinson v. Patterson, .^.TO, 351, 353, 355. 
 Martindale v. Clarkson, 7!t6, 797. 
 Martins v. Upcher, 130, 131. 
 Masnard v. Welford, 389. 
 Mason, Ro, 657. 
 
 Mason v. Bertram, 152, 153, 158. 
 Mason v. Bibby, 131. 
 Mason v. Bickte, 363, 480. 
 Mason v. Bishop, 649. 
 Mason v. Cooper, 430. 
 
 Mason v. Great Western Ry. Co., 565. 
 
 Mason v. Hatton, 564. 
 
 Mason v. Johnson, 249. 
 
 Mason v. Johnstone, 683, 
 
 Mason v. Macdonald, 473. 
 
 Mason v. Mason, 632, 658. 
 
 Mason v. Mogridge, 497. 
 
 Mason v. Peterborough, 391. 
 
 Mason v. Shrewsbury Ry. Co., 686, 687, 689. 
 
 Mason v. Thomas, 356. 
 
 Massey v. Rowen, 779. 
 
 Massie v. Toronto Ptg. Co., 822. 
 
 Masters v. Stanley, 330. 
 
 Masuret v. Stewart, 465. 
 
 Mathers, Re, 288. 
 
 Mathers v. Lynch, 354, 357. 
 
 Mathieu, Re, 285, 286. 
 
 Matthewman's case, 783, 787. 
 
 Matthews v. Bouchard, 147. 
 
 Matthews v. Brown, 547. 
 
 Matthews v. Matthews, 656. 
 
 Maund v. Monmouthshire Canal Co., 131. 
 
 Maxwell v. Scarfe, 430. 
 
 May V. Security L. andS. Co., 349, 357, 364. 
 
 May v. Standard Fire Ins. Co., .329. 
 
 May V. Woodward, .391. 
 
 Ma'yhew v. Suttle, 836. 
 
 Maynes v. Hazleton, 653. 
 
 Meades, Re, 288, 289. 
 
 Meagher v, Coleman, 822. 
 
 Medland, Re, Eland v. Medland, 404. 
 
 Meekins v. Smith, 277. 
 
 Mehary v. Lumbers, 466. 
 
 Mein, Re, «i44, 245. 
 
 Mein v. Short, 333. 
 
 Mellow V. Watkins, 826. 
 
 Membry v. Great Western Ry. Co., 151. 
 
 Mercer and Moore, Re, 698. 
 
 Mercer v. Neff, 391, 632. 
 
 Merchant Banking Co. v. Phoenix Bessemer 
 
 Steel Co., 481. 
 jVerchants Bank v. Bell, 544, 788. 
 Merchants Bank v. Bostwick, 660. 
 f ierchants Bank of Halifax v. Gillespie, 50. 
 Merchants Bank of Canada v. Henderson, 548. 
 Merchants Bank of Halifax v. McNutt, 644, 
 Merchants Bank v. MoflFatt, 560. 
 Merchants Bank v. Montreal, 50. 
 Merchants National Bank v. Ontario Coal 
 
 Co., 543. 
 Merchants Bank v. Smith, 54, 562,665, 566. 
 Meriden Brittania Co. v. Braden, 351, 465. 
 Meriden Silver Co. v. Lee, 461. 
 Metropolitan District Ry. Co. and Cash, Re, 
 
 698. 
 Metropolitan Loan and Savings Co, v, Mara, 
 
 278, 472, 788. 
 Mette V. Mette, 052. 
 Mews V. Mews, 779. 
 Meyer v. Boll, 1 19. 
 Meyer v. Decroix, 541. 
 Meyor Rubber Co. v. Rich, 278, 
 Meyerhoff v, Froohlick, .304, 306, 
 Meyers v, Campbell, 265, 
 Meyers v, Doyle, 680, 
 Meyers v. Meyers, 395. 
 Mej'erstoin v. Barber, 260. 
 Moxborough v. Wljitwood Urban District 
 
 Council, 93. 
 
-. J.1 ^p-l^^^ 
 
 XXVIU. 
 
 TABLE OF CASES. 
 
 Michie v, Allen, 276. 
 
 Michie v. Reynolds, 328. 
 
 Mickleburgh v. Parker, 387. 
 
 Midcley v. Midgley, 307, 394. 
 
 Midland Loan Co. v. Cowieson, 353. 
 
 Middlesex v. Smallroan, 787. 
 
 Milford Haven Rj'. and Estate Co. v. Mowatt, 
 
 590. 
 Millar, Re, 786, 788. 
 Millar v. Smith, 761, 766. 
 Miller, Re, 245. 
 Miller v. Brown, 681, 763. 
 Miller v. Caldwell, 307. 
 Miller v. Cook, .'593. 
 Miller v. Harewood, 309. 
 Miller v. McTaggart, 93. 
 Miller v, Ostrander, 309. 
 Miller v. Reid, 464. 
 Miller v. Ryerson, 160. 
 Miller v. Wiley, 332, 588. 
 Milligan v. McAlpine, 147. 
 Milligan v. Sutherland, 354. 
 Millingtor, Re, 246. 
 Millissich v. Llo^-ds, 116. 
 Milne, Re, 244. 
 Milne v. Moore, 395. 
 Milner, Re, Milner v. Milnw, 785. 
 Milloy V. Kerr, 562, 563. 
 Mills V. Capel, 684. 
 Mills V. Colchester, 686. 
 Mills V. Millward, 653. 
 Mil ward v. Midland Ry. Co., 149. 
 Minhinnick v. Jollj", 354. 
 Minna Craig Steamsliip Co. v. Chartered 
 
 Mercantile Bank, .152. 
 Mitchell V. Cantrill, 088, 689. 
 Mitcliell V. Coffee, 829. 
 Mitchell V. Holdsworth, 146. 
 Mitcliell V. Macaulej-, 470. 
 Mitchell V. Richey, 288. 
 Mitchell V. Weir, 779. 
 Mitchell's claim, 304, .305, ,308. 
 Mitchison v. Thompson, 826. 
 Mittlebergor v. Clarke, 277. 
 Moase v. White, 056. 
 Moberly v. CoUingwood, 236. 
 Mockett, Re, 396, 397. 
 Moffatt V. Coulson, .350. 
 Moffatt V. (Jrover, 332. 
 Moffatt V. Prentice, 95. 
 Molony v. Molony, 078. 
 Molson V. Lambe, 62. 
 MolsoiiM Bank v. Oirdlostone, 665. 
 Molsons Bank v. Hulter, 465. 
 Monagluvn, Re, 245. 
 Moncton V. Gilzean, 698. 
 Monk V. Benjamin, 606. 
 Monk V. Farliiiger, 804. 
 Monk V. Whittcnbury, 'ISl. 
 MonkhmiBc v. G.T.R., 57, 03, 146. 
 Monmouth Canal Co. v. Harford, 686, 687. 
 Monroe v. Twistleton, 94. 
 Montague, Re, 289. 
 Montague v. Harrison, 277. 
 Montgomeiy v. (jorbit, 462. 
 Montgomery v. (iraham, 97. 
 Montcith, Re, Merchants Bank v. Monteith, 
 
 6m, 566. 
 Montreal, Bank of v. Stewart, 763. 
 
 Montreal Rolling Mills Co. v. Corcoran, 149, 
 151. 
 
 Moodie v. Bannister, 297. 
 
 Moody V. Canadian Bank of Commerce, 473. 
 
 Moor V. Raisbeck, 655. 
 
 Moorehouae v. Bostwick, 467. 
 
 Moore v. Doherty, 678. 
 
 Moore v. Gidley, 130. 
 
 Moore v. Gillies, 837. 
 
 Moore v. Holditch, 131. 
 
 Moore V. Jackson, 778, 779, 780, 787, 804. 
 
 Moore v. Jimson, 149. 
 
 Moore v. Knight, 394. 
 
 Moore v. Mellish, 391. 
 
 Moore v. Moore, 278. 
 
 Moore V. Morris, 785. 
 
 Moore v. Wallace, Re, 265. 
 
 Moravian, Re, 389. 
 
 Morey v. Totten, 592. 
 
 Morgan v. Dodson, 545. 
 
 Morgan v. Hesketli, 542. 
 
 Morgan v. Hutchins, 146. 
 
 Morgan v. London General Omnibus Co., 145. 
 
 Morgan v. Morgan, 684, 
 
 Morgan v. Palmer, 128, 130. 
 
 Morgan v Swansea Urban Sanitary Author- 
 ity, 390. 
 
 Morley v. Great Western R'y Co., 160. 
 
 Morrell v. Frith, 305, .307. 
 
 Morrell v. Morrell, 650. 
 
 Morris, Re, 797. 
 
 Morris, James, Re, v. London and County 
 Banking Co., 468. 
 
 Morris v. Martin, 797. 
 
 Morris v. Morris, 657. 
 
 Morris (Townsliip) v. Huron (County), 15. 
 
 Morrison v. Arnold, 649. 
 
 Morrison v. Baird, 145. 
 
 Morrison v. Morrison, 655. 
 
 Morrison v. Watts, 471, 474. 
 
 Morrow v. Rorke, 3.56. 
 
 Morse, Re, 782. 
 
 Morse v. Lamb, 764, 767. 
 
 Mortimer v. Bell, 591. .' 
 
 Morton, Re, 653. 
 
 Morton v. Cowan, .329, 
 
 Morton v. Lewis, 592. 
 
 Morton v. Palmer, 8.30. 
 
 Morton and St. Thomas, [Re, 765. 
 
 Morton v. Woods, 608. 
 
 I.Ioss V. Harter, (i56. 
 
 Moule, Doe d. v. Campix-ll, 592. 
 
 Mountjoy v. Collier, 236. 
 
 Mowat, A.-G., V. Casgrain, 56. 
 
 Mower v. Orr, 657. 
 
 Moyle V. Jenkins, 153. 
 
 Moyle V. Moyle, 388. 
 
 Muckleroy v. liurham, 119. 
 
 Mucklow v. Mangles, 561. 
 
 Muggoridgo, Re, 396, 397, 400. 
 
 Muir v. Carter, 292. 
 
 Muir V. Dunnett, 610, 766. 
 
 Mulcahy v. Collins, 784. 
 
 Mulligan v. Thompson, 1 19. 
 
 Munro v. Munro, 28(i. 
 
 Munro v. Smart, 645. 
 
 Munro v. Waller, 470. 
 
 Munsie v. Lindsay, 592. 
 Munster v. Cox, 496. 
 
TABLE OF CASES. 
 
 XXIX. 
 
 Murdoch V, Windsor and Annapolis Ry. 
 
 Co., 58. 
 Murietta v. South American, .330. 
 Murphy, Re, 6,'52. 
 Murphy v. Wilson, 150. 
 Murray v. Barber, 783. 
 Murray v. Brown, 94. 
 Murray v. Watkins, 684. 
 Murray v. Westmount. '291. 
 Musgrave v. Sandeman, 785. 
 Music Hall Block, Re, 765. 
 Musurus Bey v. Gadban, 297. 
 Muttlebury v. King, 764. 
 Muttlebury v. Taylor, 606. 
 Myers v. Gibson, 650. 
 Mykel v. Doyle, 674. 
 Myles V. Burton, 779. 
 
 N. 
 
 Nash V. I)e Frevillo, 548. 
 
 Nash V. Hill, 308. 
 
 Nasli V. Sharp, 836, 837. 
 
 Natal Land Co. v. Good, 766. 
 
 National Bank of Australia v. Cherry, 559. 
 
 National Bank of Australia v. Morris, 460. 
 
 National Bank v. Silke, 546, 547. 
 
 Navulshaw v. Brownrigg, 482. 
 
 Naylor, Re, 244. 
 
 Naylor and Spendla, Re, 696. 
 
 Neau« V. McMillan, 236. 
 
 Neal, Ex parte, 501. 
 
 Neale's case, 24(>. 
 
 Neesom v. Clarkson, 788. 
 
 Neill V. McMillan, 1.30. 
 
 Neill V. Ridley, 443. 
 
 Nellcs V. Maltby, 4()6, 467. 
 
 Nelson V. Hopkins, 656. 
 
 Nelson V. Page, 658. 
 
 Nepeaii v. Doe, 677. 
 
 Nesbitt, Re, 244. 
 
 Nesbitt V. Armstrong, 784, 787. 
 
 Ness V. Stephenson, 830. 
 
 Neston v. Newcome, 131. 
 
 Neville, Re, 651. 
 
 Nevills V. Ballard, 53. 
 
 Nevitt V. McMurray, 764, 766, 796. 
 
 Newl)erry, Re, 288. 
 
 Newlrould v. Smith, .308, 683, 684. 
 
 Now Brunswi('k Ry. Co. v. Kelly, 766. 
 
 Newcombe v. Anderson, 830. 
 
 Newfoundland v, Newfoundland Ry. Co., 
 
 473. 
 Newland (or Newton) v. Harland, 277. 
 Newlands v. Payiitor, 778. 
 New Lon<lon Credit Syndicate v. Neale, 542. 
 Newman, Re, 244, 24r). 
 Newmarch v. Store, ()58. 
 New, Prance i,nd (iarrard's Trustee v. 
 
 Hunting, 462. 
 Newton, Re, 2KS. 
 
 Newton 
 Newton 
 Newton 
 Newton 
 Newton 
 Nichol V 
 NichoUs 
 
 437. 
 277. 
 
 . Chorlton, 
 . Coiistal)Ie, 
 . Newton, 654. 
 . Reid, 388. 
 . Sherrv, 395. 
 Allenby, 606. 
 C'unnnings, 16. 
 
 Nichols V. Regent's Canal Co., 306. 
 
 Nicholson v. Field, 390. 
 
 Nickells v. Goulding, 120. 
 
 Nickle V. Douglas, .328. 
 
 Nisbet V. Cock, .355, 356. 
 
 Noel V. Corporation of Richmond, 68. 
 
 Noel V. Recfruth Foundry Co., 152. 
 
 Nolan, Re, 805. 
 
 Nolan V. Donnelly, 354, 466, 467. 
 
 Nordheimer v. Robinson, 249, 363. 
 
 Norfold V. Arbuthnot, 690. 
 
 Norris, Re, 650. 
 
 North British and Mercantile Ins. Co. v. 
 
 Lanibe, 60. 
 North V. Fisher, 297. 
 Norton v. Frecker, 394. 
 North London Land Co. v. Jacques, 826. 
 North Ontario's Election, Re, 15. 
 North Perth, Re, .52, 71. 
 North of Scotland Mortgage Co. v. German, 
 
 607. 
 North of Scotland Mortgage Co. v. Udell, 
 
 607. 
 North West Transportation Co. v. Mc- 
 
 Kenzie, 442. 
 North Western Bank v. Poynter, 442. 
 Nowery v. Connolly, 721. 
 Nudell V. Williams, 827, 836. 
 Nugent, Re, 244. 
 Nuues V. Carter, 461. 
 
 Obernier v. Robertson, 116, 131. 
 
 O'Brien v. Clarkson, 465. 
 
 O'Brien v. Sanford, 151. 
 
 O'Connell, Re, 837. 
 
 O'Connor v. Dafoe, 333. 
 
 Q'Connor v. Hamilton Bridge Co., 147, 151. 
 
 O'Connor v. Majoribanks, 94. 
 
 O'Connor v. Nova Scotia Telephone Co., 14. 
 
 O'Dcll V. Gregory, 292. 
 
 O'Donolnie v. Whitty, 610. 
 
 Offay V. OflFay, 264, 265. 
 
 Ogden V. McArthurs, 804. 
 
 Ogg V. Shuter, 564. 
 
 Ogle, Ex parte, 243, 244, 245. 
 
 0'(irady v. McCaffray, 592. 
 
 Ohlsen v. Terrers, 97. 
 
 Ohlham, Ex parte, ,501. 
 
 Oliphant v. Leslie, 130. 
 
 Olive, Re, Olive v. Westerman, 403. 
 
 Oliver v. Loekie, 687. 
 
 Oliver v. McLaughlin, 460, 462. 
 
 Oliver v. Mowat, 822. 
 
 Olney v. Bates, 657. 
 
 O'Meagher v. O'Meagher, 649. 
 
 O'Neill V Owen, 648, 653, 654, 765. 
 
 Olney v. Gardiner, 691, 692. 
 
 Onslow, Plowden v. Gayford, 782. 
 
 Ontario v. Dominion, 72. 
 
 Ontario Bank, T:e, 328. 
 
 Ontario Bank v. Laniont, 465, 473. 
 
 Ontario Bank v. Newton, .566. 
 
 Ontario Bank v. Wilcox, .357. 
 
 Ontario Forge and Bolt Co. , Re ; Townsend'a 
 
 Case, 501. 
 Ontario Industrial Loan Co, v, Lindsey, 762, 
 
 767. 
 Orange v. Piokford, 660. 
 
XXX. 
 
 TABLE OF CASES. 
 
 Orange and Wright, Re, 697. 
 
 Ormrod, Re, 389. 
 
 O'Rorke v. Boliiigbroke, 592. 
 
 O'Rourke v. Lee, 249. 
 
 Orton V. Brett, .546. 
 
 Osborn v. Gillett, 156, 
 
 Osborn v. London Dock Co., 93. 
 
 Osborne, Ex parte, 264. 
 
 Osborne v. Jackson, 145. 
 
 Osborne v. Kerr, 825. 
 
 Osborne v. London and North Western Ry. 
 
 Co., 151. 
 Osborne v, Rowlett, 696, 698. 
 O'Shaugncssy v. Hall, 250. 
 Osier V. Miitte-, 328. 
 Ostrom V. Benjamin, 235. 
 Olley and Ilklcy Ry. Co., Re, 655. 
 Outrain v. Maude, 686, 692. 
 ■Overend, Gurney & Co. v. Oriental Financial 
 
 Corporation, 437. 
 Overton v. Banister, 309. 
 Owen V. Wolley, 308. 
 Oxley V. Wilkes, 110. 
 
 P. 
 
 Pacauette, Re, 468. 
 
 Paddon v. Ricliardson, 402. 
 
 Page, Ro, 393. 
 
 Page V. (iritfitli, 06. 
 
 Page V. Midland Ry. Co., 590. 
 
 Paget V. Foley, 682. 
 
 Paget V, Paget, 785, 786. 
 
 Paladino v. Gustin, 116, 117. 
 
 Paloy V. Garnett, 146. 
 
 Palk V. Skinner, 692. 
 
 Palliser v. (iurney, 784. 
 
 Palmer, Ex parte, 96. 
 
 Palmer v. Hendry, 560. 
 
 Palmer v. Mail Printing Co., 825. 
 
 Palmer v. Rogers, 276. 
 
 Palmer v. Wallbridge, 822. 
 
 Palmes V. Danby, 606. 
 
 Pannoll v. Taylor, 276. 
 
 Pannell v. London Brewing Co., 826. 
 
 Papin, Ex parte, 67. 
 
 Pardo V. Bingham, 297. 
 
 Parfitt V. Jephson, 591. 
 
 Park V. Taylor, 330. 
 
 Parke v. Riley, 331. 
 
 Parker, Re, 653. 657. 
 
 Parker and Beech's Contract, Re, 608. 
 
 Parker v. Goasage, 460. 
 
 Parker v. Mitchell, 690, 691. 
 
 Parker, Morgan v. Hill, 438. 
 
 Parker v. Parker, 95. 
 
 Parker's Trust, Re, 389. 
 
 Parkes v. St. (Jeorge, 3.50, .355, 358. 
 
 Parkinson, Re, 244. 
 
 Parkinson v. Hanbury, 609, 610. 
 
 Parks V. Cahoon, 678. 
 
 Parks V. St. George, 470. 
 
 Parkyn v. Staples, 1.30. 
 
 Parniiter v. Coupland, 115. 
 
 Parr v. Montgomery. 331, 332. 
 
 Parsons v. Gooding, .395. 
 
 Parsons v. Queen Ins. C, 565. 
 
 Parsons, Re. Stockley v. Parsons, 781. 
 
 Partingto.i v. Buiclior, .305. 
 
 Pass V. Dundas, 387. 
 
 Patch V. Shore, 656. 
 
 Patch V. Ward, 607. 
 
 Patchim v. Davis, 95. 
 
 Patching v. Bull, 590. 
 
 Patrick v. Simpson, 684. 
 
 Paterson v. Tash, 482. 
 
 Paterson v. Wilcox, 120. 
 
 Patterson v. Gillies, 357. 
 
 Patterson v. Holland, 489. 
 
 Patterson v. King, 822. 
 
 Patterson v. Kingsley, 352. 
 
 Patterson v. Maughan, 356. 
 
 Patterson v. Richmond, 822. 
 
 Patterson v. Thompson, 829. 
 
 Patton, Re, 244, 245, 246. 
 
 Pawson V. Hall, 275. 
 
 Payne v. Little, 788. 
 
 Peacock v. Colling, .397. 
 
 Peakin v. Peakin, 678. 
 
 Pearce, Re, 243. 
 
 Pearce v. (jraham, 657. 
 
 Pearce v. Lansdowne, 145. 
 
 Pearce v. Pearce, 390. 
 
 Pearce and Waller, Re, 787. 
 
 Pearson, Re, 403. 
 
 Pearson v. Essery, 788. 
 
 Pearson v. Glayebrook, 236, 837. 
 
 Pearson v. Pears jn, 648. 
 
 Pearson v. Spencer, 589. 
 
 Pearl v. Deacon, 437. 
 
 Pearn, Re, 647. 
 
 Pease v. (iloahec, 479. 
 
 Peck and Gait, Re, 764. 
 
 Peck and Lonilon School Board. Re, 590. 
 
 Peck V. Powell, 313. 
 
 Pedder v. Hunt, 676. 
 
 Peek v. Derry, 403. 
 
 Pegg v. Howlett, 545. 
 
 Pegg V. Plank, 95. 
 
 Pegge V. Metcalfe, 329. 
 
 Pegram v, Dixon, 148. 
 
 Pelley v, Bascombe, 678. 
 
 Pelton V. Harrison, 784. 
 
 Pembroke v. Friend, 6.58. 
 
 Penny v. Allen, 684. 
 
 Pentell v. Harborne, 825. 
 
 Pentington v. Brownleo, 681. 
 
 Penton v. Barnett, 826. 
 
 People V. Molj-neux, 16. 
 
 Peoples Loan and Deposit Co. v. Dale, 472. 
 
 Peoples Loan and Deposit Co. v. Grant, 313. 
 
 Percy, Re, Stewart v. Percy, 797. 
 
 Perkins, Re, Poyser v. Beyus, 466. 
 
 Perrins v. Bellamy, 393. 
 
 Perrin v. Davies, 356. 
 
 Perrott v. Perrott, 654. 
 
 Perry v. Brass, 149. 
 
 Perry, Doe d. v. Henderson, 678. 
 
 Perry v. Eames, 692. 
 
 Perry v. Perry, 610. 
 
 Porsee, Ex parte, 243. 
 
 Pcry, Re, 650. 
 
 Peterkin v. Macfarlane, 593, 763, 766. 
 
 Pettinger v, AmWer, (iijO. 
 
 Peuchen v. Iir.perial Bank, .564. 
 
 Plielan, Re, 287. 
 
 Phillips V. Beal, 307. 
 
 Phillips V. Cayley, 656. 
 
TABLE OF CASES. 
 
 XXXI. 
 
 Phillips V. Dickson, 437. 
 
 Phillips V. Evans 607. 
 
 Phillips V. Halliday, 690. 
 
 Phillips V. Henson, 830. 
 
 Phillips V. Huth, 482. 
 
 Phillips V. Phillips, 304, 788. 
 
 Phipps, Re, 6o0. 
 
 Phipps V. Hale, 646, 649. 
 
 Picard v. Hine, 783. 
 
 Piciiard v. Anderson, 402. 
 
 Pickard v. Bears, 480. 
 
 Picker v, London and County Banking Co., 
 
 557. 
 Pickerel River Improvement Co. v. Moore, 
 
 93. 
 Pickering v. Busk, 480. 
 Pickersgill, v. Rodger, 658. 
 Pierce v. Canada Permanent, 763, 765. 
 Piers, Re, Ex parte Piers, 469. 
 Pigeon V. Recorder's Court, Montreal, 62. 
 Piggott and Great Western Ry. Co., Re, 697. 
 Pigot v. Cubley, 560. 
 Pike V. Fitzgibbon, 779, 783. 
 Pillow, Ex parte, 61, 68. 
 Pilgrim v. Knatchbull, 264. 
 Pine v. Warden, '441, 
 Pink, Re, 245. 
 Pitt V. Coombs, 277. 
 Piatt V. Grand Trunk Ry. Co., 765. 
 Plasterer's Co. v. Parish Clerks' Co., 692. 
 Pledge V. Buss, 437. 
 Plonderleith, Re, 245. 
 Plenty v. West, 653. 
 Pliinmer v. Wellington, 824. 
 Plunil) V. McGannon, 655. 
 Plumb V. Steiri'.off, 592. 
 Poll V. Hewitt, 151. 
 Pollard, Re, 785. 
 Poison V. Uegeer, 364. 
 Ponton V. Bullen, 472. 
 Ponton and Swanston, Re, 695. 
 Pooley, Re, 652. 
 Pooley V. Hicks, 147. 
 Pope V. Griffitli, 66, 67. . 
 
 Popple, Re, 696, 697. 
 Portalis v. Tetloy, 482, 483. 
 Porter v. Flintoft, 358. 
 Porteus V. Watncy, 443. 
 Portman v. Patterson, 235, 236. 
 Pott v. Clegg, 308. 
 Potter v. Carroll, 205. 
 Potter V. North, 685. 
 Potts V. Bovine, 589. 
 Potts V. Leask, 438. 
 Pott!! V. Myers, 796. 
 Poulett (Eiirl) v. Hood, 396. 
 Poulin v. Quebec, 61, 68. 
 Pountain, Re, 244. 
 Powell, Re, 647, 656, 
 Powell v. Apollo Candle Co., 51. 
 Powell v. Calder, 461, 464, 467. 
 Power v. Ellis, 93. 
 Prance v. Symplon, 305. 
 Pratt v. Bunnell, 797. 
 Prendergast, Re, 650. 
 Prescott V. Barker, 656. 
 Presland v. Bingham, 691. 
 Preasey v. Trotter, 587, 611. 
 Previste v. Gatti, 147, 153. 
 
 Price V. Brady, 593. 
 Price v. Guinane, 836, 837. 
 Price v. Manning, 96. 
 Price v. Price, 653. 
 Price, Re, iStafford v. Noble, 784. 
 Price, Re, Stafford v. Stafford, 646, 784. 
 Prince v. Oriental Banking Corporation, 566, 
 Pritchard v. Lang, 147. 
 Pritchard v. Pritchard, 278. 
 Prittie, Re, 398. 
 Prosser v. Wagner, 407. 
 Provincial Fisheries, Re, 53, 59, 61. 
 Prynne, Re, 787. 
 Pryor v. Pryor, 649. 
 
 Prytherch, Re, Prytherch v. Williams, 606. 
 Puddephatt, Re, 647. 
 Pugh v. Heath, 676. 
 Pulling V. Great Pjastern R3'. Co., 157. 
 Punnett, Ex parte, 608, 609. 
 Purcell V. Burgin, 652, 654. 
 Pye V. Mumford, 692. 
 
 Pyra V. (Jreat Northern Ry. Co., 152, 166, 
 157, 159. 
 
 Q. 
 
 Quarm v. Quarm, 656. • 
 
 Quebec Fire Assce. v. Anderson, 292. 
 
 Quebec, Montgomery and Charlevoix Ry. 
 
 Co. V. Mathieu, 292. 
 Queddy River Boom Co. v. Davidson, 55, 62. 
 Queen Victoria Park v. Colt, 592. 
 Queen's case, 93, 
 Queen's College v. Claxton, 606. 
 Queen's Counsel, Re, 60, (U, 65, 69. 
 Quincey v. Sharpe, 304. 
 Quinlan v. Gordon, 313. 
 Quinsej' Doe d. v. Caniffe, 678. 
 Quinton v. Frith, 677. 
 Quirt V. The Queen, 52, 55, 56, 63. 
 
 B. 
 
 Raby V Ridehalgh, 402. 
 
 Race V. Harrison, 149. 
 
 Radcliffe, Re, Radcliffe v. Bewes, 591. 
 
 Radford v. Macdonald, 95, 
 
 Radford v. Mercantile Bank, 558- 
 
 Rae v. Meek, 387, 413. 
 
 Railto'i, Re. 245. 
 
 Railtri! V. Wood, 470. 
 
 Rainb ,v ». Juggins, 4.38. 
 
 Rai;iav. Buxton, 675, 677, 679. 
 
 Rainy Lake Lumber Co.; Re, Stewart v. 
 
 Union Bank of Lower Canada, 558, 560. 
 Ramesliar Pershad Narain Singh v. Koonji 
 
 Behari Pattuk, 689. 
 Ramsden v. Dyson, 824. 
 Ramus v. Dow, 632, 633. 
 Randall v. Stephens, 6S0. 
 Randlield v. Randfleld, 652. 
 Ranjoly v. Midland Ry. Co., 687. 
 Raphael v. MacLaren, 292. 
 Ratcliffe v. Winch, 395. 
 Rathbone v. White, 697. 
 Rathbun v. Cuthberts(ni, 332, 762. 
 Ratt V. Parkinson, 128. 
 Ravenhill v. Upcott, 116. 
 Raw V. Cuttcn, 389. 
 Read v. Fairbanks, 502. 
 Read v. Great Eastern R^-. Co., 156. 
 
xzxn. 
 
 TABLE OF CASES. 
 
 Read v. Whitehead, 761. 
 
 Reburn v. Ste. Anne, 292. 
 
 Reddan, Re, 6.S.S. 
 
 Redding, He, 648. 
 
 Redfield v. Corporation of Wickham, 09. 
 
 Redman v. Broers, 9.5. 
 
 Reece v. Millar, 236. 
 
 Reed, Doe d. v. Harris, 653. 
 
 Reed v. King, 96. 
 
 Reed v. Lanib, 97. 
 
 Reed v. Wilson, Re, 762. 
 
 Rees, Re, 650. 
 
 Rees V. Davies, 8.S7. 
 
 Reeves v. Butcher, 683. 
 
 Reg. V. Smith, 286. 
 
 Reid, Re, 6")2. 
 
 Reid V. Barnes, 14;). 
 
 Reid V. Oowans, .330, 4.3(). 
 
 Reid V. Macdonnell, 249. 
 
 Reid V. Reid, 394, 781. 
 
 Reille v. Reid, 4(53. 
 
 Renaud, Ex parte, 69. 
 
 Rennie v. Frame, 679. 
 
 Restitution S.S. Co. v. Pirie, 443. 
 
 Rex V. Seanmiondea, .587. 
 
 Reynolds, Ex parte, 9.3. 
 
 Reynolds v. Clarke, 689. 
 
 Reynolds v. Williamson, .357. 
 
 Rioe, Re, 647. 
 
 Rice V. Fletelier, 275. 
 
 Rice V. Howard, 96. 
 
 Rico V. Rice, 487, 788. 
 
 Richards, Re, 244. 
 
 Richards v. Fry, 690. 
 
 Richanlson, Re, 610. 
 
 Richardsoti v. Armitage, 370. 
 
 Richardson v. Barry, 306. 
 
 Richardson v. Buswell, ,328. 
 
 Richardson v. Horton, ,391. 
 
 Richardson v. Ranson, 61, 65, 68 
 
 Richardson v. Rich"rdson, 276. 
 
 Richardson v. Trinncr, 822. 
 
 Richer v. Voyer, 557. 
 
 Rickett V. (Jwiney, 277. 
 
 Riddell, Doe d, v. frwinnell, 258. 
 
 Ridgway v. Darwin, 245. 
 
 Riel V. Reg, 57. 
 
 Rielle v. Wood, 46.3. 
 
 Right d. Carter, v. Price, 648. 
 
 Rimington v. Cannon, 684. 
 
 Riper v. Poppcriiausen, 488. 
 
 Risk Allah Bey. v. .Johnstone, 115, 116. 
 
 Risk V. Slectnan, 356. 
 
 Ritson, Re, Ritson, v. Ritson, 658. 
 
 Rivers Estate, Re, (Lord) .397. 
 
 River Stave Co., v. Sill, 352. 
 
 R. 
 
 R. 
 
 R. 
 
 R. 
 
 R. 
 
 R. 
 
 R. 
 
 R. 
 
 R. 
 
 R. 
 
 R. 
 
 R. v. 
 
 R. V. 
 
 Adey, 93. 
 . Bank of Montreal, 543, 644. 
 , Bank of Nova Scotia, 71. 
 , Becker, 94. 
 , Bennett, 61, 65. 
 , Binney, 128. 
 . Bittle, 69. 
 
 Boardnian, 67. 
 
 Boyes, 93. 
 
 Bradshaw, 52, 65. 
 
 JJricrly, 50. 
 
 Bunting, (i9, 218. 
 
 Burah, 51. 
 
 R. V. Busoowitz, 56. 
 
 R. v. Bush, 61, 65. 
 
 R. v. Chandler, 58. 
 
 R. V. Clifford, 98. 
 
 R. V. Coote, 64. 
 
 R. V. Currie, 16. 
 
 R. V. Davenport, 822. 
 
 R. V. Davidson, 236, 
 
 R. V, Ditcheat, 836. 
 
 R. V. Douglas, 277. 
 
 R. V. Everett, 235. 
 
 R. V. Foley, 65. 
 
 R. V. Frawley, 67. 
 
 R. V. Grand Trunk Ry. Co., 313. 
 
 R. V. Halliday, .59, 62. 
 
 R. V. Hammond, 106, 264. 
 
 R. V. Harden, 236. 
 
 R. V. Hart, 94. 
 
 R. V. Hendershot, 106. 
 
 R. V. Henry, 461. 
 
 R. V. Hodge, 57, 58, 59, 67, 68. 
 
 R. V. Horner, 61, 65. 
 
 R. V. Howard, 62. 
 
 R. V. Hughes, 129. 
 
 R. V. Lawrence, 59. 
 
 R. V. Lee, 61, 65. 
 
 R. V. Levinger, 58, 65. . 
 
 R. V. Lowe, 97. 
 
 R. V. McDonald, 2.36. 
 
 R. V. ISlcDougall, 62. 
 
 R. V. McMillan, 62. 
 
 R. V. Mainwaring, 97. 
 
 R. V. Mohr, .53. 
 
 R. V. Moss, (il. ' 
 
 R. V. North Vautv, 264. 
 
 R. V. O'Rourke, 65. 
 
 R. V. Parsons, 96. 
 
 R. V. Plowman, 50. 
 
 R. V. Potter, 330. 
 
 R. V. Povnder, 8.36. 
 
 R. V. Priest, W. N., 2.36. 
 
 R. V. Reason, 501. 
 
 R. V. Rene, 61, 65. 
 
 R. V. Robertson, .53, 54, 55. 
 
 R. V. Rod((y, .59. 
 
 R. V. Rowland, 97. 
 
 R. V. Sandford, 236. 
 
 R. V. Sheriff of Leicestershire, 278. 
 
 R. V. Smith, 286, 762. 
 
 R. V. Spurrell, 8.36. 
 
 R. V. Stewart, 264, 265. 
 
 R. V. Stone, .52, ,57, 64. 
 
 R. V. Taylor, 236. 
 
 R. V. Toiand, 58, 66. 
 
 R. V. Wa.shington, 16. 
 
 R. V. Watson, 57, 59, 64, 66, 67- 
 
 R. V. Weaver, 97. 
 
 R. V. Williams, 106. 
 
 Roach V. McLaddan, 430. 
 
 Roach V. Wadham, .590. 
 
 Robarts v. Rot)arts, .308. 
 
 Robl) V. Mui'i'ay, 2.35. 
 
 Robbins, Re, 95. 
 
 Roberts, Ex parte, 244. 
 
 Roberts, Re, 393. 
 
 Roberts v. Hall, 286. 
 
 Rol)erts v. Orchard, 129. 
 
 Roberts v. Phillips, 649. 
 
 Robertson v. Bnrrill, 306. 
 
TABLE OF CASES. 
 
 XXXIII. 
 
 Robertson v. Coulton, 275. 
 
 Robertson v. Daley, 678. 
 
 Robertson v. Uanganeau, Re, 696. 
 
 Robertson v. Da vies, 541, 545, .547. 
 
 Robertson v. Holland, 465. 
 
 Robertson v. Larociue, 781. 
 
 Robertson v. Lonsdale, 545. 
 
 Robertson, Re, Robertson v. Robertwon, 797. 
 
 Robertson v. Ross, 95. 
 
 Robinet v. Pickering, 256, 592, 
 
 Robins, Re, 246. 
 
 Robins v. Clarke, .S59. 
 
 Robinson v. Bergin, 265. 
 
 Robinson v. (,'. P. R., 156. 
 
 Robinson v. Orange, 328. 
 
 Robinson v. Harkin, .388, 393. 
 
 Robinson v. Peace, 329. 
 
 Robinson v, Pickering, 783, 788. 
 
 Robinson v. Preston, 608. , 
 
 Robinson v. Piirdoni, 680. 
 
 Roblin V. iMeMahon. 304, 306. 
 
 Robson V. Carpenter, 762. 
 
 Robson V. Kdwards, 689. 
 
 Roche V. Ryan, 764. 
 
 Rochfort V. p]ly, 244. 
 
 Rockport V. Seaton. 388. 
 
 Roddani v. Morley, 298. 
 
 Roderigas v. East River Hank, 407. 
 
 Rodger v. Moran, 631. 
 
 Rodgers V. Hamilton C ttonCo., 151. 
 
 Roflier v. Liipicrre, 291, 292. 
 
 Rodocanachi v. Milbnni, 443. 
 
 Roe V. Bra<len, 766, 
 
 Roe V. Davis, 823. 
 
 Roe V. .Jones, 3.33, 588. 
 
 Roe V. Siddons, 686. 
 
 Rogers v. Carroll, 356, 462. 
 
 Rogers and Farewell, Re, 473. 
 
 Rogers v. (Joodenough, 6.54. 
 
 Rogers v. Hull Docks Co., 8.36. 
 
 Rogers v. .J<jnes, 132. 
 
 Rogers v. Knowles, 275. 
 
 Rogers v. Ontario Bank, 829. 
 
 Rogers V. Quinn, 3(Ki. 
 
 Rogers v. Rice, 826. 
 
 Rogers v. Ullman, 311. 
 
 Rogers v. Wilson, 606. 
 
 Rolfe v. Perry, 6,58, 
 
 Rolland v. La Caisse d'Kconomie de Quebec, 
 
 471, 560. 
 Rollason, Re, RoUason v. Rollason, 3.30. 
 Romberg v. Steenbock, 276. 
 Rooker v. Hoof.sletter, 761. 
 Rose, Re, 632. 
 Rose v. Bartlett, 656. 
 Rose V. Hope, 354. 
 Rose V. Peterkin, 763, 766. 
 Rose V. Zimmerman, .332, .588. 
 Ro.sebatch v. Parry, 473. 
 Ross, Re, 95, 265, 288, 395. 
 Ross V. Clifton, 131. 
 Ross V. Cross, 149. 
 Ross V. Dunn, ,3.50, 351, 464. 
 Ross V. Hunter, 763. 
 Ross V. Hurd, 275. 
 Ross V. Mcdvindscy, 97. 
 Ross V. MoLay, 128, 767. 
 Ross V. Parkyns, 311. 
 Ross V. Ross, 655. 
 
 8 
 
 Ross V. Simpson, 329. 
 
 Rossin V. .loslin, 825, 
 
 Routledge v. Law, .50. 
 
 Routledge v. Ramsay, 308. 
 
 Rowland v. Witherden, .388. 
 
 Rowley v. London and North Western Rv. 
 
 Co., 1.57, 158. 
 Rowley V. Unwin, 788, 
 Rownnon, Re, 394. 
 Rowth V. Howell, 388. 
 Royal Bank of Scotland v. Tottenham, 542. 
 Royal Canadian Bank v. Brown, 98. 
 
 V. Carruthers, 444, 565 
 
 " V. Cummer, 559. 
 
 " V. fi. T.R.,441. 
 
 •• V. Kelly, 608. 
 
 " V. Lockman, 472. 
 
 V.Miller, 565, ,566, 567. 
 V. Mitchell, 779, 780. 
 V. Ross, 563, 567. 
 Royal Canadian Irisurance Co. v. Montreal 
 
 Warehousing Co., 63. 
 Royds v. Royds, 403. 
 Roylance, Doe d v. Lightfoot, 676, 683. 
 Roylc V. Harris, 646. 
 
 Ruoy, Re, Trusts Corporatioh v. Ruby, 67. 
 Kumball v. Metropolitan Bank, 557. 
 Runiohr v. Marx, 3.30. 
 Russell, Re, 653. 
 Russell v. Niemann, 443. 
 Russell V, The Queen, 52. 
 Russell V. Robertson, 297. 
 Ru.ssell V. RuH.sell, 761, 762. 
 Russell, Russell v. Shoolbre<l, 438. 
 Ruttan V. Winans, 688. 
 Ryan v. Clarkson, 467. 
 Ryan v. Devereu.x, 651. 
 Ryan v. Ryan, 676, 678. 
 Ryberg v. Ryberg, 96. 
 Ryokman v. Canada Life Ass. Co., 610. 
 Ryerson, Re, 395. 
 Rykert v. Miller, 765. 
 Rylands v. Fletcher, 786. 
 Sackville v. Smyth, 658. 
 Saderquist v. Ontario Bank, 557. 
 Sadler v. Henlock, 501. 
 Sage v. Duffy, 128. 
 
 St. Catharines Milling Co. v. Reg. .56, 61. 
 St. Catharines and Niagaiu Central Ry. Co. 
 
 and Barbeau, Re, 69. 
 St. Hyacinthe v. St, Hyacinthe, 15, 
 St. ,Tohn V. Boughton, 680. 
 St. .Tohn V. Rykert, 313. 
 Salisbury, Re Marquis of, 696. 
 Sallery, Re, 657. 
 
 Salmon, Re, Priest v. Uppleby, 403, 404. 
 Salmon v. Swand, 823. 
 Salt V. Cooper, 218. * 
 
 .Salter v. Cavanagh, 684. 
 Samis v. Ireland, ;^32. 
 Samuel v. Coulter, 358. 
 Sandars v. Barker, 146. 
 iSandbaeh and Edniondson, Re, 696. 
 .Sanders v. Armesley, 675. 
 
 Maclean, 441. 
 Malsimrg, .593, 779, 804. 
 
 Sanders, 674, 680, 681. 
 Sanderson, 160. 
 
 Sanders v, 
 Sanders v. 
 Sanders v. 
 iSander.son 
 Sandford v. 
 
 Portei', 389, 473. 
 
XXXIV. 
 
 TABLE OF CASES. 
 
 SaiulK to Thompson, He, (i"H. ()H4. 
 
 Satiguimietti v. Mesaiter, ."(4"2. 
 
 SaigentH" Policy, Ke, 33(». 
 
 SiisH, Ke, 468. 
 
 Saul V. Pattiiisoii, <M>1. 
 
 Saunders, Re, (i.")(). 
 
 Saunders v, Latlmni, (W7. 
 
 Saunders v. Mills, I l(i, 
 
 Saunders v. Wiel, !W. 
 
 Savoy, Ke, 64S. 
 
 Sawyer, Ke, 7S"). 
 
 Sawyer v. Thomas, i)44, 
 
 Sayles v. Hrown, TOo. 
 
 Scales V. .Taeobs, ,S()5. 
 
 Scane v. Coffey, '276. 
 
 Scanlan, Re, 288, 289. 
 
 Searf v. Jardine, 496. 
 
 Scarlet, Re, 244. 
 
 Schatfer v. Dumble, 2.5(1. 
 
 Scholey v. Walton, 306. 
 
 Schotield and wife, 779. 
 
 Scholfield V. Karl of Loiidi'sliorouyli, .")46. 
 
 Scot V. Scot, 824. 
 
 Sco.t, Re, 245. 
 
 Scott V. Crerar, 9(5. 
 
 Scott V. Duncan, 6.")7. 
 
 Scott V. Jones, 307, 396. 
 
 S'jott V, McRae, 2.")(». 
 
 Scott V. Mitchell, 264, 27."). 
 
 Scott V. Morley, 783, 786, 787. 
 
 Scott V. Reburn, 128. 130. 
 
 Scott V. Scott, 648. 
 
 Scott V. Supple, 632, 6,58. 
 
 Scott V. Wye, 14. 
 
 Scottish Ontario and Manitoba Land Co., Re, 
 
 837. 
 Scribner v. Kinlock, 353. 
 Scripture v. Gordon, 438. 
 Seagrave, Re, 785. 
 Seal V. Claridge, ;}55. 
 Seath V. Moore, 561. * 
 
 Seaton v. Taylor, 333. 
 Secord v. Great Western Ry. Co., 158. 
 Seddon V. Bank of Bolton, 692. 
 Sedgwick v. Thomas, 786. 
 SegBWorth v. Anderson, 474. 
 Seidlor v. Sheppard, 606. 
 Selmes v. Judge, 129. 
 Selwyn v. Gartit, 610. 
 Seniayne's case, 250. 
 Senior v. Ward, 156. 
 Serle, Re, Gregory v. Serle, 825. 
 Seroka v. Kattenburg, 786. 
 Serrains v. Campbell, 443. 
 Severn v. Campbell, 443. 
 Severn v. McLellan, 766, 
 Severn v. Reg., 59, 62. 
 Sewell V. Burdick,'441, 442. 
 Sewell V, Jones, 2.36. 
 Shaffers v. General Steam Navigation Co., 
 
 145. ^ 
 
 Shakespeare, Re, Deakin v. Lakin, 784. 
 Shallow V. Vernon, 160. 
 Shannon v. O'Brien, 828. 
 Sharman, Re, 652. 
 Sharp V. Fowle, 830. 
 Shaver and Hart, Re, 782. 
 Shaw V. Crawford, 246. 
 Shaw V. Johnson, 682. 
 
 Shaw V. McCreary, 786. 
 
 Shaw V. McKenzie, 129, 264, 275. 
 
 Shaw V. Shaw, 680. 
 
 Shaw V. Thorne, 654. 
 
 Sliaw V. Tims, 3.32. 
 
 Sheddon v. (ioodrich, 651. 
 
 ShetKeld v. Harrison, 352, .3t")4. 
 
 Shelley v. Nash, 592. 
 
 Shelley v. Westbrooke, 288. 
 
 Shenton v. Smith, 15, 60. 
 
 Shepherd v. Berger, 824. 
 
 Shepherd v. Harrison, 441. 
 
 Shepherd: on v. McCuUough, 679. 
 
 Sheppard v. Sheppard, 797. 
 
 Sheppard v. Union Bank of F^ondon, 482. 483. 
 
 Sherboneau v. .left's, 766. 
 
 Sherk v. Evans, 236. 
 
 Sherlock, Re, 396. 
 
 Sherratt v. Merchants Bank, 782. 
 
 Sherren v. Pearson, 679. 
 
 Sherwood v. Sanderson, 244. 
 
 Shields v. Peek, .")(), .")2, 56, 57. 
 
 Skinimin v. Bellow, .")91. 
 
 Shoolbred v. Clarke, 52, 53, 56. 
 
 Short v. McCarthy, 304. 
 
 Short v. Ruttaii, 762. 
 
 Short v. Simpson, 441, 442. 
 
 Shropshire Union Railway v. Canal Co. v. 
 
 Reg. 587. 
 Shuttleworth v. Le Fleming, 68". 
 Sibbald V.G.T.R., 160. 
 Sibeth, Kx parte. Re, Sibeth, 778. 
 Sickles V. Asseltinc, 333. 
 Sidelx)tham v. Holland, 827. 
 Sidwill V. Mason, 305, 307. 
 Sieveweight v. Leys, 397. 
 Sillick v. Booth, 407. 
 Simmons, Re, 467. 
 Simmons, Ex parte, 501. 
 .Simmons v. London .Joint Stock Bank, .556, 
 
 557. 
 Simper v. Foley, 689. 
 Simpson and Chafferty, Re, 468, 473. 
 Simpson v. (iodmanchester, 688. 
 Simpson v. Margitson, 827, 8.36. 
 Simson, Re, .<96. 
 Sinclair v. Bell, Re, 496. 
 Sinclair \-. Brown, 632, 655, 
 Sinclair v. Dewar, 300. 
 Sinclair \'. Jackson, 682. 
 Sindcn v. Brown, 128, 129, 1.30. 
 Singer v. Elliott, 545. 
 Skeat, Re, .389. 
 Skeet V. Lindsay, 304. 
 Skinner v. Ainsworth. 590. 
 Skinner v. Onle, 289. 
 Skinner's Co. v. Knight, 826. 
 Sklitzsky v. ('ranston, 764. 
 Skull V. Glenistcr, 689. 
 Slanning v. Style, 779. 
 Slater v. Badenach, 465. 
 Slater v. Oliver, 461. 
 Slattery v. Dunn, 115. 
 Slattery v. Turney, 266. 
 Sloan V. Holliday, 689. 
 Sloan V. Maughan, 357. 
 Small V. Thompson, 784. 
 Smart V. Hay, 119. 
 Smart v. McEwan, 610. 
 
TABLE OF CASES. 
 
 XXXV, 
 
 '<2, 483. 
 
 Co, V. 
 
 k, 5r)6, 
 
 Smart v, .Saiidiiis. .S(M). 
 Smart v. Smart, 28"., 2H(>, 
 Smart v. Sor-enson, 707. 
 Smell V. Bryer, (i4l). 
 SmothurKt v. Ha«tings, 4(t2. 
 SmiUw V. Bedford, 50, ")(>. 
 Smith, Re, 243, 287, ()52. 
 Smith, Kx parte, jVJ. 
 Smith V, Antipitsk}', 4(>7. 
 Smith V. Baker, 145, 14(i, 1.">1, 1.52. 
 Smitli V. Beal, 473. 
 
 Smith \. Bedouin Steam Navigation do., 444. 
 Smitii, Be, Bilke v. Hoper, 040. 
 Sinitii and Bustard's ease, 823. 
 Smitli v.Colioiirgaiid I'eterl.oro K\-. (.'i).,,329. 
 Smith V. CritehHehl, .33(». 
 Smith V. (.'rookor, Hit. 
 , ])oyle, 471. 
 . Kverett, .3!»4. 
 , Fair, 308, 35!). 
 , F<}Hter, 278. 
 . Tfill, 082. 
 , .Tamieson, !I4. 
 
 Keowii, 070. 
 , I/aurenee, 403. 
 . Lloyd, 075. 
 
 Lomas, (i55. 
 
 Low, 3(»!l. 
 , McCJowan, !»8. 
 
 Mei'eiiants Bank, 52, 50. 
 
 Merriam, 054. 
 
 Motliitt, 37(1. 
 
 Moreton, (i58. 
 
 Morton, .371 >. 
 
 Nethersole, 270. 
 
 Norton, 700. 
 
 Onderdonk, 151. 
 
 Poole, 304, 300. 
 
 fritchard, 130. 
 Smitli V. Rogers, ,")51. 
 Smitli and Shenston, Re, 705. 
 Smith V. Smith, 275, 048. 
 Smith, Re, Smith v. Smitli. Re. 0.">8. 
 Smith, Smith v. Thomjjson, 402. 
 Smith and Stott, Re. 007. 
 Smith V. Turnhull, .331. 
 Smith V. Wallbridge, 002. 
 Smith V. Whitloek, 784. 
 Smith V. Williamson, 473. 
 Smithett v. Heskoth, 007. 
 Smurthwaite v. Simpson. 442. 
 Smyth V. Stephenson, 117. 
 Snarr v. Smith, 3,53. 
 Sneary v. Abdy, 205. 
 Snell V. Heighten, ,352. 
 Snell V. Toronto Ry. Co. , 840. 
 Snook, Ex parte, 244. 
 Snowden v. Ba\ nes, 149. 
 Solieitor, Re, 98. 
 Solomon V. Davis, 543. 
 Solomon and Mer.gher's Conlraet, Re, 010. 
 Solomon v. Solomon, 15. 
 SoltykofF, Re, Ex parte Margrett, 542. 
 Somerville v. Mirehouse, 128. 
 Somes, Re, Smith v. Somes, ,591. 
 Soubner v. MacLaren, 352. 
 South Wales, ete., Coal Co, v. Underwo.id, .".43. 
 Southcote, E.\ parte, 245, 
 South wick V, Hare, 117. 
 
 Smith 
 Smitli v, 
 Smith v, 
 Smith V, 
 Smith V. 
 Smith V. 
 Smith v. 
 Smith V, 
 Smitli V, 
 Smith V. 
 Smitli V, 
 Smith V, 
 Smith V 
 Smith V. 
 Smith V. 
 Smith V, 
 Smith V. 
 Smith V. 
 Smith V. 
 Smith V. 
 Smith V. 
 Smith V. 
 
 Sovereign v. Sovereign, 387. 
 
 S(|uair v. Fortune, 32!(, 355. 
 
 Spahr V. Bean, 788. 
 
 Spalding v. Barker, 30S. 
 
 Spalding v. Huding, 442. 
 
 Sparkes v. Bell, 783. 
 
 Sparkes v. WoltV. 050. 
 
 Speight V. daunt, 387, 388, 380. 
 
 Spence v, Stuart, 277. 
 
 Spencer v, Newton, 277. 
 
 Sperling, Re, 049. 
 
 Spickeriiell v. Hotliam, 307. 
 
 Spiller, Re, .300. 
 
 Spilsbury, Doe d v. Burdett, 0.">lt. 
 
 Spong V. Wright, ,307. 
 
 Spooner, Re, 050. 
 
 Spooner v. Sandilands, .3(M(. 
 
 Spratt V. Wilson, .388. 
 
 Springett v. Balls, 150. 
 
 Spn.ule, Re, 00. 
 
 Sproule V. Wilson, 2,35, 
 
 Sprung V. AndeiHon, 1,30. 
 
 Sj.ry V. MeKen/.ie, 249. 
 
 Spry V. Muml.y, 128. 
 
 Sugden v. Cr(..ssland, ,390. 
 
 Suite v. Thi'ee Rivers, 02. 
 
 Sun Fire Office v. Hart, 02. 
 
 Sunb(.lf v, Alford, 250. 
 
 Surman v. Wharton, 770, 788, 
 
 Suteliff'e v. Cole, 055. 
 
 Suter V. Merchants Bank, ,563. 
 
 Sutton V. Blakev, 540. 
 
 Swain, Re, 303." 
 
 Swain v. Ayers, 588, 
 
 Swain v. Mail I'rintiiig Co.. 117. 
 
 Swain.s(.n v. Swain.son, 058. 
 
 Swainston v. Clay, .502. 
 
 Swansea Bank v. 'I'homas, 822. 
 
 Swansea, Mavi.r (.f v. Thomas, 823. 
 
 Sweenj- v. Mc(iilvray, 149. 
 
 Sweeting v. Pearce, 482. 
 
 Sweetland y. Neville, 784. 
 
 Sweetlaiid \'. Sweetland, 040. 
 
 Swift V. Swift, 286. 
 
 Swinfcn v. Swinfen, .388, 
 
 Swinford, Re, 650. 
 
 Sykes, Re. 778. 
 
 Sykes v. North Eastern Ry. Co., 157, 158. 
 
 Symonds v. Hallett, 787. 
 
 Synions v. Leaker, 002. 
 
 Symons v. Rees, 234. 
 
 Stackpoole v. Staekpoole, (J70. 
 
 Staebler v. Zimmerman, 95. 
 
 Staffordshire Canal Co. v, Birmingham 
 
 Canal Nav, Co,, 086, 
 Stagg v, Broderick, 545. 
 Stair, Re, 246. 
 Stairs v. Allen, 66. 
 Stamford v. Dunl.ar, 092. 
 >"(tandard Bank v. Boulton, 779, 783. 
 Standard Bank v. Frind, 496. 
 Stanford, E.x parte, 607. 
 Stanley v. Grundy, 0t)9. 
 Stansfield, Re, Stansliehl v. Stansfielil, 057, 
 Stanton v. Scruttt.n, 140, 
 Stark V. Reid, 000. 
 Starr-Bowkett Building Soey. and Sil.un 
 
 Re, 696, 698. 
 Stickle V, Byers, 330. 
 
XXXVI. 
 
 TABLE OF CASES. 
 
 m\ 
 
 Stedhain, Ke, H'A. 
 
 Steele, Ke, W.-.4. 
 
 Steele v. Hrcniiiin, I Ifi. 
 
 Steele v. (irciit Northern Ky. L'u 
 
 Steele v. McKinliiv, i)4.'i. 
 
 Steeim v. Slmw, (its, ^i~\). 
 
 Hteiiilioll \. Me Hue, M\i. 
 
 Stephen v. Sini])H(in, 7t>.">. 
 
 Sto))li('nH, Ke, Amj. 
 
 Stephens v. Keultv. 'MKi. 
 
 Stephens v. HdiwHean, 4f).S, 41'A. 'Ai\. 
 
 Stephens v. (iirtli, 291. 
 
 Ste|)hoMs V. McAithnr, 4()l, 
 
 Ste])hens v. Tiii)i('ll, (iM. 
 
 Ste])liens, Ke, Wiiihuitoii v. Stcplicus. )i7(i. 
 
 Stevens, Ke, 24.5. 
 
 Stevens v. Bnrfoot, .S,'>4, ',i^)~>. 
 
 Killer, 47!t. 
 
 V. Montieiil, 2{)2. 
 
 Cowiin, i;j(». 
 
 Stevens v. 
 Stevenson 
 Stewart v. 
 Stewart v. 
 Stewiirt V. 
 Stewart v. 
 Stewart v. 
 Stewart v. 
 Stickney v 
 
 (iage, 472. 
 Lees, !)7. 
 Kowsoni, (ilO. 
 Sny.lir, .'WS. 3!)4, :Wri. 
 Stewart, (Ui). 
 iSewcll, 403. 
 
 Stinipson v. Wood, 1,57. 
 
 Stinson V. Pennoek, (i()7. 
 
 Stinson V. Stinson, 3!(S, B57. 
 
 Stoakes, Re, ()47. 
 
 Stockton Iron Furnace Co., Re, (iO!). 
 
 Stoeser v. Springer, 249, 479. 
 
 Stogdale v. Wilson, 234. 
 
 Stogdon V. Lee, 7S4, 7S.">. 
 
 Stokoe V. Cowan, 330. 
 
 Stolwortiiv V. Powell, 234. 
 
 Stone V. liyde, 1.53. 
 
 Stone V. Knapp, 781. 
 
 Stone V. Press Association, 117. 
 
 Stone's Settlement, Re, 39(i. 
 
 Stoness V. Lake, 128. 
 
 Story V. .Johnston, .309. 
 
 Stothard v. Milliard, 686, 689, 692. 
 
 Stott v. Loid, 394. 
 
 Stott V. Milne, 389. 
 
 Stott V. Spain, 829. 
 
 Stourton V. Stourton. 2,Si). 
 
 Stovel v. (;ret;ory, 679. 
 
 Strachan v. Rnttan, 474. 
 
 Strackell v. {'iiarlton, 822. 
 
 Strange v. Fooks, 437. 
 
 Straughan v. Sniitii, 120. 
 
 Streatle\', Re, 649. 
 
 Street v. Faulknei', 95. 
 
 Stretton v. Asliniall, 402. 
 
 Strevens v. Bayley, ().5.5. 
 
 Stride v. Diamond (J lass Co., 149. 
 
 Strong V. Dickenson, 277. 
 
 Strong V. Stringer, 088, 825, 
 
 Stroud V. Kane, 825. 
 
 Struthers v. Green, 237. 
 
 Struthcrs v. Struthers, 655. 
 
 Stuart, Re, 243. 
 
 Stuart V. Evans, 145, 1.52. 
 
 Stuart, Re, Smith v. Stewart, 393. 403. 
 
 Stuart V. Spence, 692. 
 
 Stuart V. Thomson, 460. 
 
 Stuart V. Treniain. 465. 
 
 Stubbins, Kx parte, 462. 
 
 Sturges V. Hridgniaii, 687. 
 Sturnis V. (Jorp, 783. 
 Sturgis V. Moore, 679, 
 Sturla V. Freccia, 97. 
 Styles V. Fokes, 116. 
 
 T , Ke, 397. 
 
 TallM;t, Re. 244, 246. ' 
 
 TallMit V. Stainforth, 592. 
 
 Tallman v. Smart, .'150. 
 
 Tamplin v. Miller, 785. 
 
 Tannei- v. Smart, 305, .SO(i. 
 
 'ran(|ueray. Re, 391. 
 
 Tapling v. .Tones, 690. 
 
 Tain V. Turner, (i06. 
 
 Tarrant v. Baker, 1.30. 
 
 Tate V. Latham, 146, 147, 148, 1.50. 
 
 Tathani v. Haslar, 543. 
 
 Taylor, Re, 678. 
 
 Taylor, Kx parte, 462. 
 
 Taylor v. Amslie, 351. 
 
 Taylor v. Bank of New South Wales, 437. 
 
 Taylor v. Brodie, 395. 
 
 Tavlor v. Cummings, 4(j5. 
 
 Taylor, Dood., v. Mills, 651. 
 
 Taylor v. Leitch, 276. 
 
 Taylor v. K3'mer, 483. 
 
 Taylor v. McKwan, 278. 
 
 Taylor v. Meads, 645, 650, 778, 779, 783, 
 
 Taylor v. NesKeld, 130. 
 
 Taylor v. NichoU, 264. 
 
 Taylor v. Regis, 95. 
 
 Taylor v. Steele, 305. 
 
 Teasdall v. Brady, 278, 788. 
 
 Teevan v. Smith, 6t»6. • 
 
 Temperance Ins. Co. v. Coombe, 328. 
 
 Tempest v. Tempest, 652. 
 
 Tennant, Re, 785. 
 
 Tennant, Ex parte, 311. 
 
 Tennant v. Callow, 465. 
 
 Tennant v. MacEwan, 474. 
 
 Tennant v. Union Bank of Canada, 52, 54, 
 
 55, 556, ,562, 563. 
 Tenute v. Walsh, 632. 
 Tetley v. Criffith, 784. 
 Tench v. Roberts, 311. 
 
 Tew v. Toronto Savings and Loan Co., 470. 
 Thacker v. Key, 590. 
 Thackwray and Young, Re, 697. 
 Theberge v. Landry, 59, 66. 
 Thibaudeau v. Garland, 463, 473. 
 Thibaudeau v. Paul, 349, 471. 
 Thomas, Re, 649. 
 Thomas, Re, Ex parte Sheriff of Middlesex, 
 
 431. 
 Thomas v. Luthani, 828. 
 Thomas v. Quartermaine. 151, 152. 
 Thomas v. Thomas, 677, 689. 
 Thompson, Re, 430, 431, 
 Thompson v. Bennett, 71. 
 Thompson v, Clarkson, 474. 
 Thompson and t^urzon. Re, 697. 
 Thompson v. Eede, 2;J5. 
 Thompson v. Faii'bairn, .398. 
 Thompson v. Freeman, .397. 
 Thompson v. Molsons Bank, 564. 
 Thompson v. McCarthy, 606. 
 
TABLE OF CASES. 
 
 xxxvu 
 
 Thompson, Ke, and Registrar of Wellington, 
 
 7H2, 764. 
 Thompson v. Ringer, 698. 
 ThompHon v. Simpson, 656. 
 Thompson v. VVaithnian, 3((S. 
 Thompson v. Warwit^k, (KKJ. 
 Thompson v. Wright, 147, l">l, 330. 
 Thomson v. Quirk, .354, tilil. 
 Thomson v. Thomson, 786. 
 Tliorn V. Woolcombe, 823. 
 Thorne, Re, 650, ()51. 
 Thorne v. Cann, 607. 
 Thorne v. Hearrl, 393, 394. 
 Thornton v. France, 676, 677. 
 Thornton v. Ktokill, 403. 
 Tliorpe V. Bestwick, 6.52. 
 Thoi-pe V. Richards, 796. 
 Thrussell v. Handyside, 147, 151, 152. 
 Thuresson v. Thuresson, .591, 676. 
 Thwaites v. Wilding, HliO. 
 Tickle V. Brown, 686, 692. 
 Tilbury v. Davis, 688. 
 Tilbury v. Silva, 691. 
 Till V. Till, 788. 
 Tillie V. Springer, 632. 
 Tilsoiiburg, Lake Erie and Pacific Ry. Co., 
 
 Ro, .389, 397. 
 Tilton V. McKay, 97. 
 Timmerman v. St. .Tohii, .'58. 
 Tinker v. Rodwell, 677, 678. 
 Tippett and Ncwbould, Re, 696, 785. 
 Tobey, Re, 653. 
 
 Tobin V, New (ilasgow Iron Co., 1.52. 
 Todd V. Liverpool, London and (Jlobe Ins. 
 
 Co., 566, 
 Toft V. Stephenson, 680. 
 Toleman v. Portbury, 824. 
 Tolton V. C. P. R., 7C3. 
 Tomkins v. Puicent, 824. 
 Tomkins v. Saffery, 460, 461. 
 Tondinson, Kx parte, 243, 244. 
 Toms V. Wilson, 823. 
 Tone V. Preston, 687. 
 Tooke V. Bergeron, 148. 
 Tooth \-. Frederick, 275. 
 Topham v. Booth, 683. 
 Topping, E.\ parte, 308. 
 Toronto, City of v. Virgo. 16. 
 Toronto Dental Co. v. McLaren, 496. 
 Toronto General Trusts Co. v. Irwin, 658. 
 Toronto General Trusts Co. v. Quin, 632, 
 
 798. 
 Toronto Harbor Commissioners, Re, ,397. 
 Toronto Hospital Trustees v. Denham, 826. 
 Toronto V. .Jarvis, 763. 
 Toronto Ry. Co. v. Reg. 16. 
 Torrance v. Chewett, .397. 
 Totten V. Bowen, 461, 779. 
 Totten V. Douglas, 610. 
 Tottenham, Re, 245. 
 
 Townsend, Re.Tovvnsend v. T'ownsend, 652. 
 Tozer, Re. 654. 
 
 Traders" Bank v. McConnell, 431. 
 Trainor v. Holcombe, 235. 
 Travis \ . lUingwortli, .389. 
 Treleven and Horner, Re, 698. 
 Trench's Trusts, Re, 781. 
 Trerice v. Buckett, 437. 
 Tribe v. Tribe, 649. 
 
 _ M V, Newiihani, .305. • 
 Trinible v. Hill, 16. 
 Trimmell, Re, 649. 
 Tripp v. Armitage, 561. 
 Tristram v. Hardy, 681. 
 Trotter v. Chamliers, 779, 
 Truax v. Dixon, 15. 
 Truesdell v. Cook, 678. 
 Trulock v. Robey, 681. 
 Truman v. Rudolph, 150, 152. 
 TruHcott V. Mercliant Tailor's Co., MO. 
 Trust and Loan Co. v. Gallagher, ?llk 
 Trust and Loan Co. v. City of Hanilton, 
 
 5.57. 
 Trust and Loan Co. v. Lawrason, 6f>^ 
 Trust and Loan Co. v. Shaw, 765. 
 Trust and Loan Co. v. Stephenson, 68a, 084. 
 Trusts Corporation and Boehmer, Re, 697. 
 Trusts Corporation . McCue, 782. 
 Trusts Corporation and Medland, Ro, 697. 
 Tuck V. Fryson, 470. 
 Tucker V. Chaplin,. 156. 
 Tucker, Re, Emanuel v. ParHt, 781. 
 Tucker v. McMahon, 95. 
 Tucker v. Morris, 330. 
 Tucker v. Sanger, 651. 
 Tucks V. Kayess, 655. 
 Tuck's Trusts, Re, .396. 
 Tuffts V. Mottashod, 2.50. 
 Tullelt V. Armstrong, 779, 785. 
 TuUis V. Jackson, 311. 
 Tullock V. Dunn, 306. 
 Tully V. Farrell, 333. 
 TurnbuU v. Forman, 14. 
 Turner, Re, 468, 654. 
 Turner, Ro, Barker v. Ivimey, 393. 
 Turner v. Hancock, 389. 
 Turner v. Lucas, 460. 
 Turner and Skelton, Re, 697. 
 Turner v. Sullivan, 1 16. 
 Turner v. Wills, .%58. 
 Tweedale, Re, 650. 
 Tweedlie v. Bogie, 120. 
 Twynes' case, 461. 
 Tyas v. MacMaster, 356. 
 Tyleev. Deal, 631. 
 Tyre v. Wilkes, 95. 
 Tyrwhitt v. Denison, 657. 
 
 u. 
 
 Udy V. Stewart, 120. 
 
 Uhrig V. Uhrig, 472. 
 
 Union Assurance Co., Re, 607. 
 
 Union Bank v. Munster. 591. 
 
 United Club and Hotel Co., Ro, 822. 
 
 United States Express Co. v. Donohue, 403. 
 
 Unitt and Prott, Re, 466, 
 
 Usill v. Hales, 116. 
 
 V. 
 
 Valieri v. Boy land. 444. 
 
 Valin V. Langlois, .52,. 66. 
 
 Vancouver v. Canadian Pacific Railway, 51, 
 
 5.). 
 Van Cutucm, Re, 654. 
 Van Eveiy v. Grant, 249. 
 Vance v. Cummings, 762, 
 
XXXVlll. 
 
 tablp: of cases. 
 
 Vane v. Vane, 677. 
 
 Van Natter v. Buffalo and Lake Huron Rv. 
 
 Co., 1.31. 
 Vannornmn v. MoCarty, '.i'M. 
 Vansicklo v. l{o3(l, 275. 
 Vansickle v. Vansickle, (io;"). 
 Vansittart, Re, 4(55. 
 Vansittart v. Vansittart, 28(>. 
 Vanstaden v. Vanstaden, 330. 
 Van Velsor v. Hughaon, 695. 
 Vavasour, Re, 246. 
 Vardon v. N'ardon, 95. 
 Venables v. Baring, 557. 
 Venn and Furze, Re, ,391. 
 Venning v. Steadnian, \'2H, \'M). 
 Vera Cruz, Tiic, 156. 
 Vernon v. Smith's Falls, 1 5. 
 Verratt v. McAulay, 1 3(». 
 Vickers v. Hertz, 482. 
 V^ictoria Mutual v. Fncl. VAX. 
 Vincent v. (Joiug, 6H2. 
 Viney v. (Jhaplin, 58S. 
 Vinnin()nit)e v. Hutler, 649, 6.")(). 
 Violett V. Brookman, 655. 
 Viveasli V. Becker, 276. 
 Vogt V. Boyle, 235. 
 Voisey, Ex parte, 608, 609. 
 
 w. 
 
 Wadswortii v. iioidton, 276. 
 
 Wddswortii V. .Mmphv, 128. 
 
 Wagstaff V. Lcwerre, 398. 
 
 Wagstatle v Wagstalle, 655. 
 
 Wakefield v. Bruce, 264. 
 
 Wakefield v. Hamilton AVlii)) Co., 467. 
 
 Wainford v. He>l, 786. 
 
 Wait V. Sagur, 430. 
 
 Waldie and Burlintfton, iie. 764, 765. 
 
 Waldio V. (irange, .'{53. 
 
 Walker, Re, 403, 647. 
 
 Walker, Ex parte, 501. 
 
 Walker v. Allen, 632. 
 
 Walker v. Hirscli, 311. 
 
 Walker v. Hyman. 249, 363, 480. 
 
 Walker v. Jones, .56((. 
 
 Walkei V. Niles, 851, 463. 
 
 Walker v. Olding, 330. 
 
 Walker v. South Rastern Ry. Co., 129. 
 
 Walker v. Walker. ({49. 
 
 Walkerton v. Erdman, 15(). 
 
 Wallace v. Cook, .300. 
 
 Wallace Huestis (Jrey Stone Co., Re, 03, 
 
 V\ allace v. Moore, 256. 
 
 Wallbridge v. Brown. 2.35. 
 
 Waller v. Lacv, 305. 
 
 Walpole V. Alexander, 277. 
 
 Wali'ond V. Hawkins, 824. 
 
 Walsh V. Lonsdale, .588. 
 
 Walsh V. Whileom)(, .300. 
 
 Walsh V. Whitely, 146, 148. 
 
 Walson V. Wilson, 277. 
 
 Walters v. Woodliridge, 389. 
 
 Walton V. Henry, 821.. 
 
 Want V. Canipain, .393. 
 
 Warburton v. I'arke, 686. 
 
 Ward V. Day, 824. 
 
 Ward V. Reed, 52. 
 
 Ward V. Robins, 600. 
 
 Ward V. Sinfield, 96. 
 
 Ward V. Ward, 472. 
 
 Warde v. Warde, 285, 286. 
 
 Ware, Re, i 16. 
 
 Warin v. London and Canadian Loan (.'n., 
 
 686, 688. 
 Warner v. Murray, 788. 
 Warnock v. Kleopfer, 460, 462. 
 Warr, I)e La v. Miles, 686, 688, 691. 
 Warren, Re, 394, 786. 
 Warren v. Ueslippes, 97. 
 V»'arren v. Murray, 675, 676. 
 Warrington v. Warrington, 782. 
 Waiter v. Warter, 652. 
 \Vassell V. Leggatt, 394, 788. 
 Washington v. Grand Trunk Ry. Co., 14, (i4, 
 
 69, 146, 849. 
 Waterhouse v. Bank of Ireland, 557. 
 Waterous Engine WorksCompanyv.McCann, 
 
 607. 
 Waters, Re, 244. 
 Watois V. Donnelly, 592. 
 Waters v. Shade, 766. 
 Waters v. Thanet, 306. 
 Watkins, Re, 245. 
 Watkins, Ex parte, 277. 
 Watson Ro, hx parte, OHicial Receiver, 352, 
 Watson V. Bradshaw, 95. 
 
 Watson 
 Watson 
 Watson 
 Watson 
 ^Vatson 
 Watson 
 Watson 
 
 Charlton, 27i). 
 
 Henderson, 329. 
 
 Ontario Supply Co., 278, 788. 
 
 Row, 389. 
 
 Severn, 95, 235. 
 
 Spratley, 562. 
 
 Woodman, 308. 
 Watts, Re, 244, 389. 
 Watts, Ex parte ; Re Attwater, .")62. 
 Watts V. Jefleryes, 3.30. 
 Watts \. Kelson, 589. 
 Watts V. Neilson, 147. 
 Watts V. Taft, 489. 
 Weaver v. V.mdersen, 607. 
 Wel)b, Re, 244, 246. 
 Webli V. Bird, 687, 689. 
 Wel)b V. Russell, 823. 
 Weill) V, Stenton, 822. 
 Webber v. McLeod, 129. 
 \\'el)lin V. Ballard, 146. 
 Wel)ster v. Criekmore, 461, 4(52, 464. 
 Webster v. Foley, 145, 147. 
 Webster v. Le itimt. 390. 
 Webster v. Southey, .573. 
 Wegener v. Smith, 443. 
 Weiser v. Heintzinan, 93. 
 Welby V. Beard, 277. 
 Welch v. Ellis, .501. 
 Weld V. Scott, 678. 
 Weld V. Tew, 246. 
 Weldon V. l)e Bathe, 7«7. 
 Weldon V. Neal, 788. 
 Weldon V. Winslow, 788. 
 Wellbanks v. Heiu'y, 463. 
 Wellerv. Ker,591. 
 Welleslev v. Ueauforl, 28(5. 
 Wcllesley v. Wellesley, 288. 
 Wellington v. Whitchurch, 264. 
 Weninan's ca.s(', Lord, 245, 
 West, Re, 647. 
 West V, Berney, 591. 
 
TABLE OF CASES. 
 
 XXXIX- 
 
 West of Kngland and South Wales District 
 
 Bank v. Ahuch, 3S», 3!t4. 
 West V. Fritche, 608. 
 West London Commercial Hank v. Reliance 
 
 I'erni. Bldg. fSocy., ;560. 
 West Riding Banking Co., Ex parte, 46!). 
 West Toronto Election, He, l.'j. 
 Westacott V. Powell, 119, 120. 
 Westacott v. Sinalley, o4r». 
 Western National Bank v. Perez, 496. 
 Weston, Re, 6")3. 
 Weston V. Snevd, 132. 
 WestzinthuH, Re, 442. 
 VV^etherell and .Tones, Re, o2, 98. 
 Wettlaiif'-i' V. Seott, :W:l 
 Whalls V. Learn, 805. 
 Wharton v. Naylor. 8.S(t. 
 Whateley v. Wiiateley, (w."). 
 Whatley v. HoUowav, l.')0. 
 Wheatley v. Willian'is, .S06. 
 W heatoii v. Maple, 689, 692. 
 Wheeldon v. Burrows, ;iS9. 
 Wheeler, Re, 633. 
 AVlieeler v. Howell, 682. 
 Whelan v. Reg., 14. 
 Wliip'sell »-. ftifford, X'lH, XV.). 
 Wlnstler, Re, 391. 
 Whitaker, Re, .■)43. 
 Wliite V. Bastedo, 797. 
 White V. Bayley, 836. 
 White V. Finniss, 442. 
 White V. (iarden, 249, 479. 
 Wliite and Hindle, Re, 697. 
 Wliite V. Hunt, 466, 470. 
 Wliite V. Vo'Tis, 130. 
 White V. Parker, 152, 156. 
 White V. Repton, O.'iO. 
 White Sewing Machine Co. v. Belfrv, 23i5. 
 White V. Wakefield, .•)87. 
 Whitehead v. Howard, 304. 
 Whiteheml v. Whitehead, 093. 
 Whitehouse v. Partridge, 276. 
 Whitulev V. Edwards, 78.'), 78<i, 787. 
 Whittiefd v. Todd, 119. 
 Whiting V. Hovev, 353, .3.54, 467. 
 Whitlirig V. Sharpies, 2.36. 
 Wliitnian v. Union Bank of Halifax. 165, 
 Whitney v. I'ohy, 461. 
 Whittaiier, K(!, 244, 246. 
 Whittaker v. (Jolicii, 787. 
 VVhittaker v. Kershaw, 784, 786. 
 Whitlenion^ v. Ma(!donald, 4KS. 489. 
 Whitty, Re, .396. 
 Wic^kliaiii V. I,ee, 236. 
 Widnieyer v. McMahon, 2.36. 
 Widiiiore v. .lay, 156. 
 Wiednian v. Walpole. 94. 
 Wigaii V. Rowland, 652. 
 Wigle V. Setteringtoii, 763. 
 Wigle V. Stewart, 297. 
 Wigle V. Williams, 496. 
 Wilhy V. l<:igee, 3(»5. 
 Wild'v. Waygood, 145, 149. 
 Wilding V. Bean, 265. 
 Wilkii! V. Toronto, 827. 
 VVilkiiis, He, 246. 
 Wilkins V. Day, 159. 
 Wilkins V. Hogg, 387. 
 Wilkinson. Kx parte, He Berry. 4(i4. 
 
 Wilkinson v. Conklin, 765. 
 
 Wilkinson v. King, 479. 
 
 Wilkinson v. Proud, 687. 
 
 Wilkinsrn v. Unwin, 54.5. 
 
 Wilks V. (irooni, 388. 
 
 Wilheliii V. Schmidt, 441. 
 
 WiUetts V. Watt, 148. 
 
 Williams, Re, 389, 394, 396, 468, .543, 647. 
 
 Williams, Ex pane, (>09. 
 
 Williams v. Allsop, 358. 
 
 Williams v. Barton, 480. 
 
 Williams, Doe d. v. Evans, 588. 
 
 Williams, Re, Foulkcs v. Williams, 656. 
 
 Orittith, 308. 
 Hatha way, 59t). 
 .Tames, 688, 689. 
 Leonard, 353, 354. 
 McDonahl, 680, 681. 
 Pott, 676. 
 Roy, 397. 
 Shadholt, .543, 
 
 Williams v. 
 
 Williams v. 
 
 Williams v. 
 
 Williams v. 
 
 Williams v. 
 
 Williams v. 
 
 Williams v. 
 
 VVilliams v. 
 
 Williams v. Wehb, 277. 
 
 Willins V. Smith, 306. 
 
 Willis V. Howe, 677. 
 
 Willis V. Watnev, .589. 
 
 Willis V. Willis,^ 33;'.. 
 
 Wills V. (Jarroll, 266. 
 
 Wills V. Northern Ry. Co., 695. 
 
 Wilson, Re, 287, 82.3. 
 
 Wilson, Ex parte, .305. 
 
 Wilson V. Baird, 97. 
 
 Wilson V. Beddard, 648. 
 
 Wilson V. Campliell, 313. 
 
 Wilson V. Eden, 656. 
 
 Wilson and Houston, Re, 697. 
 
 Wilson V, Kerr, 354. 
 
 Wilson V. Kyle, 587, 611. 
 
 Wilson V. McGuire, Re, 65. 
 
 Wil.son and Toronto Electric Light Co., Re, 
 
 782. 
 Wilson and ToroiiNi Incandescent Light (.'o., 
 
 Re, 632, 
 Wilson and Stevens, Re, 696. 
 Wilson-Stewart, Re, Keowii-Boyd v. (iil- 
 
 mour, 785. 
 Wilson V. West Hartlepool, 14. 
 Wimbledom and Putney Conservators v. 
 
 Dixon, 689. 
 Windsor and Annapolis Ky., Itc, (i4. 
 Windsor v. (Jonimei<ial Bank, 56, 60. 
 Winfield v. Ffnvlie, .")!M», 
 Winkle, R<>, 245. 
 Winslow, Re, .395. 
 Winter v. Bartholomew, .3.30. 
 Wisden v. Wisden, 6.5(i, (i57. 
 Witt V. Banner, 353, .")()4. 
 ^Vitt V. Witt, 286. 
 Witten, Re, 285. 
 Wittroek v. Halliman, 822. 
 Witty V. Marshall, 289. 
 Wolfe V. (Jreat Northern Hy. Co., 158. 
 Wolmerhausen, Be. .308. 
 Wood, Re, 244. 
 Wood V. Bell, .561, .562. 
 Wood V. Brunt, 3.50. 
 Wood and Chivci's case. S23. 
 Wood V. Darrall, 147. 
 Wood V. Dixie, .370, 161. 
 Wood V. .loselin, 467. 
 
xl. 
 
 TABLE OF CASES. 
 
 A' 
 
 Wood V. Leadbitter 82B. 
 
 Wood V. Reesor, 463. 
 
 Wood V. Rowcliffe, 481. 
 
 Wootl V. Waud, 686. 
 
 Wood V. Wood, 329, .330, 331, 787, 788. 
 
 Woodhani v. Hollis, 306. 
 
 Woodhouse v. Balfour, 649. 
 
 Woodley, Re, 647. 
 
 Woodley v. Metropolitan Ry. Co., 151. 
 
 Woodroffe v. Doe, 680. 
 
 Woods, Re, 785. 
 
 Woods and Lewis Re, 697. 
 
 Woo<l8 V. Russell, »61. 
 
 Woodward, Re, 653. 
 
 Wookey v. Pole, "ioG. 
 
 Wooley V. Atty.-Gen. of Victoria, 71. 
 
 Wortman v. Robb, 679. 
 
 Worms, hiX parte, 50. 
 
 Worrall v. Harford, 387,^389. 
 
 Worseley v. Demattos, 370. 
 
 Worssani v. Vadenbrande, 680. 
 
 Worthington, Re, 652. 
 
 Wottom, Re, 646, 647. 
 
 Wragg, Ex parte, 245. 
 
 Wrathwell v. Bates, 333. 
 
 Wray, Re, 648. 
 
 Wright, Re, 647. 
 
 Wright V, Bell, 685. 
 
 Wright V. Collier, 1.53. 
 
 Wright V. Uewes, 8.30. 
 
 Wright, Doe d, v. Manifold, 649. 
 
 Wright V. Garden, 779, 780. 
 
 Wright V. Hollingshend, .328. 
 
 Wright V. Leonard, 786. 
 
 Wright V. Midland Ry. Co., l.")6. 
 
 Wright V. Robothani, 695. 
 Wright V. Rogers, 649, 
 Wright V. Williams, 690, 692. 
 Wulflf V. Jay, 437. 
 Wyatt V. Berry, 648, 650. 
 Wykeham, Re, 244. 
 Wyld V. Clarkson, 469. 
 Wylie V. Frampton, 780. 
 Wyoming v. Bell, 764. 
 
 Y. 
 
 Yarmouth v. France, 145 146, 140, 151. l.">2. 
 
 Yarwood v. Hart, 94. 
 
 Yewens v. Noakes, 301 . 
 
 Yielding and Westbrook, Re, 698. 
 
 Yorkshire Guarantee Co. , Re, 60. 
 
 Young, Re, 286, 468. 
 
 Young V. Adams, 15. 
 
 Young V. Davies, 651. 
 
 Young V. Harris, 678. 
 
 Young V. Harston, 698. 
 
 Young V. Higgon, 131. 
 
 Young V. Honson, 680. 
 
 Young V. Moore, .308. 
 
 Young V. Morden, 235. 
 
 Young V. O'Rielly, 837. 
 
 Young V. Parker, 496. 
 
 Young V. Smith, 470. 
 
 Young V. Spiers, 468, 763. 
 
 Young V. Ward, 430, 431, 781. 
 
 Zimmer v. G. T. R., 1.52, 156. 
 
ADDITIONAL NOTES. 
 
 x\\ 
 
 Additional Notes^ 
 
 The Following: Notes are Printed on one side of the Page 
 only, for Convenience of Insertion in their Proper Places, 
 if so Desired. 
 
 Constitutional Law- 
 Dominion Jurisdiction Exclusive. I'agf HI, Tlie abstinence of the Dominion 
 Parliament from legislating to the full limit of its power, has not the effect of 
 transferring to any Provincial Lecislature, the legislative power assigned to 
 the Dominion ; Union Colliery Co. v. 15ry(len (1899) A. C. 580, .588. A Pro- 
 vincial Legislature has no power to supplement the provisions which the 
 Dominion Parliament has made in a matter within its exclusive jurisdiction ; 
 Madden v. Nelson and Fort Sheppard Ry. (1S99) A. C. ()2(5, 628. Though the 
 Dominion Parliament may not have exercised its powers, legislation falling 
 strictly within any of the classes enumerated in s. 91 is not within the legis- 
 lative competence of the Provincial Legislatures ; Attorney -General for Canada 
 V. Attorney-CJeneral for Ontai'io, Quebec and Nova Scotia (1898) A.C. 700, 71.5. 
 
 Harbors. S. 91 (10). Scheduled. Page "m. A small bay in Lake Simcoe, dt 
 which tliere is a wharf for vessels, but no mooring ground and little shelter, 
 except from wind off the land is not a imblic harbor and a grant by the Pro- 
 vince of a water lot is vali<l ; McDonald v. Lake Sinicoe Ice Co. (1889) 26 A. 
 R. 411. 
 
 Naturalization and Aliens. 8.91(25). Page 56. A Provincial Legislature has 
 no power to pass, an Act prohii)iting Chinamen whether aliens or naturalized 
 subjects, from working in any (!m])lovmcut in tlic Province ; Union Collierv 
 Co. V. Rryden (1899) A. C. 580. 
 
 Discretion of LeglBlatures. Page 57. The discretion committed to the 
 rcs])cctive Parliaments, whether of the Dimiinion or tiie provinces is unfetter- 
 ed. It is tile ))roper function of a Court of law to determine what arc the 
 limits of the jurisdiction <:onimitte(l to them ; but when that point lias lieen 
 settled, c(mrts of law have no right whatever to inquire whether tlieir juris- 
 diction has been exercised wisely or not ; L'nion Colliery Co. v. Bryden (1899) 
 A. ('. .580, 585. 
 
 Lord's Day Act. S. 91 (27). Page 58. Enactments for the punishment of a 
 violation c)f the Lord's Day are part of the Criminal Law and iil/rn virux of a 
 Piovincial Lcgislatuie ; R. v. Halifax Klcctric Ry. Co. (1898) 30 N. S. R. 469. 
 
 Taxation. Page 59. Provincial Legislation reipiiring a Registrar of Deeds 
 to pay a proportion of his fees to a Municipality is iiiirn n'ren. If a tax at all 
 it is a (lii'ect tax ; Hastings v. Ponton (1880) 5 A. R. .543. 
 
 Provincial Companies. S. 92(10). Page 6'J. Regulations in a provincial act 
 relating to provincial undertakings such as Coal Mines are iiilrii rires of a pro- 
 vincial legislature, except to the extent tiicy ^i-ench upon the exclusive powers 
 of tiic Dominion Parliament under s. 91 ; Union Colliery ( o. \. Bryden (1899) 
 A. C. 5S0. 
 
 Property and Civil Rights. S. 92(1.3). Page (i3. Regulations respecting Coal 
 Mines in a province may also fall within s. 92 (13) and are ('»/)•« i'/)'«.» excep. 
 so far as obnoxious to the jjowers of the Dominion Parliament under s. 91 ; ilr 
 
 Railways. Page ()9. The British North America Act whilst it gives the 
 legislative control of certain railways, qua railways, to tiie Dominion Parlia- 
 ment, does not declare that tiie railway shall cease to be part of the provinces 
 ill which it is situated, or that it sIihII in other respects be exempted from th« 
 
Ill 
 
ADDITICy »L NOtES. 
 
 xlii. 
 
 jurisdiction of the provincial Iccislatures. The Parliament of Canada has 
 exclusive right to prescribe regulations for the construction, repair and alter- 
 ation of the railway, and for its management and to dictate the constitution 
 and fiowers of the Connmny ; but it is m/er alia reserved to the Provincial 
 Parliament to impose direct taxation upon those portions of it which are with- 
 in the province in order to the raising of a revenue for provincial purposes. 
 Any provincial legislation whether described as Municipal or not, attempting 
 to regulate the structure of a ditch forming |part of the work of a Dominion 
 Railway, would be idtra v'wes. If on the other hand, the enactment had no 
 reference to the structure of the ditch, but provided that, in the event of it 
 becoming choked with silt or rubbish, so as to cause overflow ami injury to 
 otlier property in the municipality, it should be cleaned out by the Railway- 
 Company, it would be intra nrex as municipal legislation ; Canadian Paoific Ry. 
 Co. V. Notre Dame de Bonsecours (1899) A. C. 367. Upon the same principle 
 pi'ovincial legislation imposing responsibility upon a Dominion Railway Com- 
 pany for cattle killed on its railway unless proper fences are erected is ultra 
 vires ; Madden v. Nelson and Fort Sheppard Railwav (1899) A. C. 626 ; 5 H. 
 C. R. .'541. 
 
 Evidence. 
 
 Action for Penalties. Pages 9.S, 94, 106. In an action under a Dominion 
 Statute for penalties, the (lefendant may be examined for discovery ; R. \-. 
 Fox (1899) 18 P. R. .S4.3. 
 
 
 Libel and Slander. 
 
 Notice of Action. Page 1 16, line 8, for " sufficient " read " insufficient." 
 
 Seduction. 
 
 Guardian. Page 118. By 62 V. e. 13 the following section is added to c. 69. 
 
 4. In case the father and motlu^r of any unmarried female who has been 
 seduced are both dead, and such unmarried female is under the age of 
 twenty-one, any person who, at the time of the birth of the child which is born 
 in consequence of he seduction, was the legal guardian of, or stood in loco 
 parentis to such unmarried female, may maintain an action for the seduction, 
 notwithstanding that such unmarried female was, at the time of her seduction, 
 sei'ving or resiclnig with another person upon hire or otherwise. 
 
 Justices of the Peace- 
 Notice of Action. Pages 128, 1.30. Notice is not necessary wiiere r.he act com- 
 ))laine(l of was not done in th< perfoi'mance of a public duty ; Davidson v. 
 Oiirrott (1899) .30 O. R. 653. A Sheriff is an officer within the Act ; see 62 V. 
 c. 7, s. 3. 
 
 Workmen's Compensation for Injuries. 
 
 Page 149. Kervin v. Canadian Cotton Mills Co., cited p. 147, was reversed 
 in the Supreme Court, mih nom. Canadian Colored Cotton Mills Co., v. Ker- 
 vin (1899) 29 S.C. R. 478, upon the ground that in the absence of evidence 
 that the negligence charged caused the injury, tlie plaintiff could not recover. 
 Where an injury was caused l)y an explosion, and tiie plaintiff' proved the ab- 
 sence of something, which might have caused tlie injury, either an automatic 
 8af.;ty ralve, oi- care on the part of a pei'son in tl»e service of the employer, 
 who.se duty it was to adjust an escape i)ii)e, the negligence was held to i)e 
 sniticicntly i)rovcd ; Wilson v. Boulter (1S99) 26 A. R. 184. 
 
 Damages to Parent. The mother of an infant is not in the legal rolationshij > 
 of ii master to him, or under legal lialnlity to maintain him, andslie can.iot re- 
 cover damages for licr servii'cs in attending u])on liim during his illness o- 
 moneys expended and liabilities incurred by her for nursing, medical atter- 
 dance or supplies ; Wilson v. Boulter (1899) 26 A. R. 184. 
 
 Factories Act. Page lol. Where the legislatin-e renders ajiarticular course 
 cif conduc^t imperative, and a deviation from it punishable by penalty in the 
 general interest of the public at large, prima farii' anil if there lie nothing to 
 the contrary, an action by a person injured by failure to perform the duty im- 
 
 ? 
 
 f 
 
 1 
 
ADDITIONAL NOTES. 
 
 xliii. 
 
 |,„.s.il ildOH II..L lie : 'roin|)kiiiM V. Hiockvillc Hiiik Ci., ( IS!»!») HIO. K. 1-J4. 
 Till' (^iiiplo.yiiient of II <'liil(l in vinlatioii of 'I'lic Fiicloiirs Ait, iIioukIi it may 
 siilijci't llio i^inployi'i' ti) 11 iH'imlty, floi's not giv(! lisc to ii livil ac^tioii for 
 iliuiiiigOH uiilcHH tlierc in t^vidi'iu'c Ici comicc:! mik'Ii violiilimi with the iU'cidciil ; 
 KoborlHV. Taylor ( I «!HI) :{| O. K. Id. 
 
 Lord Campbell s Act. 
 
 I'lDVcr (luiiia^i's fill- I lie 
 
 (• i:illHlUHil)ll that llllT(! 
 
 Parents ExpectationB. Vnm' l.'iH. A parent cannot r 
 death of hiH chihl, uidcHs I here is evidence to juHtify Ih 
 is i('aMonal)l<! cxpcietation of peeuniaiv henelit to the parent in the futliri!, eap- 
 ahh' of heinK estimated ; KoinhouKh v. ]{al(^h ( HMX)) -JO C. L. 'I'. »«». 
 
 Inappreciable Damage. No dania^u.s can Im; allowiid whurt; the jury find that 
 the death was not aei'ehMiiled hv an illegal ai't to any ap|)re<i,ilile extent; 
 Kerry v. Kngland (ISitH) A. ('. 7i'2. 
 
 County Courts- 
 Liquidated Claims I'a^e •i.T). Where hy the terms of a contract to iiuiem- 
 nifv against loss the utmost extent of the defendants' lialiility is tixed at ijji'JtN), 
 the amount is ascM'ilaiiied hv th(^ act of thc> parties; Thompson \. I'carson 
 (IS!)!t) IS I'. II. 420. 
 
 Arrest and Imprisonment for Debt. 
 
 Cause of Action for $100. I'agc 27.'>. If judgment has liceii recovered fnr 
 pai't of the claim in a Division (.'ourt and the remain<ler of the claim is lesH 
 than ifKMI, an order will not ho madu ; Ward v. Brown (IS!M() H( ( '. L. T. I.T). 
 
 Intent to Defraud. IVgc 27r). A departure from the Trovince for a tem- 
 porary pinpose is insnlliiricnt. to show an iuti'iit to defraud: I'aliuer v. Scott, 
 (iHillt) IS r. K. .'UW. Kven where the intention is to leave pc>riM,uiently somo 
 other fact or eireumstance must l>c shown which, coupled willi tiie intention 
 to <|uit Ontario, noints to an intent to defraud; rhair\. I'hair (liHMM '20 
 ( '. L. T. .'{4 ; and itl he defendant helieves the plaint ill' has no claim, he can- 
 not Ix^ saiil t'l he inten ling to defraud him; Hi. TIk- Divisional ('oiirt i\\n- 
 .seuted from the opinions of llagarty ('..!. (). and Osier, .1. .\. in (,'oH'eev. 
 Scaiie, and from the case of RoliiutHon v. (,'oulton. cited on p. 27">. 
 
 Foreigner. I'age 27."i. Klgii- v. Hult is reported in 2li A. K. 13. 
 
 Infants- 
 Religious Faith. I'agc 2H!t. In lie O'Ki'illy ( I.S!I!»| !!(('. L. I'. ;t2;t tlie 
 (uistody of ail infant was given to tin; mother to lie liroiight up in the religion 
 of the fatluM'. Where the fat her had heeii indiU'erent as to t he religion of an 
 infant, till' ( 'ourt refiis(>d to interf(!re with llie faith in which liie infant had 
 lieen l.roiight up ; |{e Marshall (IS!M)) ( '. I,. T. AM. 
 
 Limitations. 
 
 Penalties, i'agc 2!»7. S. I (g) of K. S. O. c 72, refers to actions for penalties 
 or (lamagi's or' sums of mone_\ in the nature of penalties, and docs not apply to 
 an action against a Directoi- for- an untrue slatenient in a prospectus iiridor 
 K. «. O. c. 21(i ; Thompson v. Clanniorris ( IHiHI) 2 (!|i. .V2;i. 
 
 A pormm suing for a penalty, in |)iirsuancu of a piihlie duty, is not a party 
 aggrieved within the siih section (g) ; Rohinson v. L"inTey(l8S'l) 7<»». H. D. 4Bi5. 
 
 Mortgages. There is no Statute of liiriiital ions applicalile to foreclosure of a 
 tiiort gage of personal proper'ty ; London and .Midland Kank v. .Mitchell ( IHtKI) 
 2(!li. Kil ; hut if tlie ileht is secured also liy a mortgage of real estate whii'h is 
 hari'eil the case is |)rohiihly diti'ee'ent ; ('harter v. Wat.son (|H(tl() 1 Ch. ll-'t. 
 
 Interest. 
 
 Recovery Back of Over Payments. Page 313. The uxeess of paynieiits of 
 interest on a irioitgage after' maturity Ix^youd the rate lecoverahle cainiot ho 
 recovered hack or applied on the prirrcipal ; Stewart v. Ferguson (I S9H) 31 
 O. K. 112. 
 
ADDITIONAL NOTES. 
 
 xliv 
 
 Execution. 
 
 Contingent Interests. I'uge 3:V2. The interest of a tenant lij- entireties in 
 real estate cannot be sold l>v the iSherirt' while the husband and wife are l)oth 
 living; (Jriftin v. l'atterson"(lS81) 45 U. C. R. .")3(i. 
 
 Chattel Mortgages and Bills oi Sale. 
 
 Persons Entitled to the Benefit of the Act. I'age :$.")(). .\ purciiaser who 
 neglects to comply with s. () cannot invoke liie provisions of t lie Act against 
 a subsequent pureha.ser in good faith and tlie latter, though hv lias not com- 
 plied with the act, obtains priority ; Winn v. Snider (1899) "JC) A. R. 384. 
 
 Affidavits. Page 3.")6. Rogers v. Carroll is reported, 30 0. R. 328. Advan- 
 tage cannot lie taken of the fact that a statement in an affidavit of Itona fides 
 is technically incorrect ; Beridiart v. McCutcheon (1899) 19 C L. T. 9". 
 
 Trustees and Executors. 
 
 Liability for Acts of Co-Trustees. Page 387. A trustee who entrusts his 
 
 co-trustee with a checine, payable to an alleged borrower on a mortgage iuvest- 
 
 , ment, is not lialile for loss caused by his cotrustee forging the payee's 
 
 ' endorsement of the chetiue ; Re McLatchie, Preston v. Leslie (1899) 30 O.R, 
 
 179. 
 
 Joint Debtors, i'age ,391. The eti'ect of s. 15 was not considered in Camp- 
 liell V. Farley (1894) 18 P.R. 97 ; see 19 C.L.T. 122. 
 
 Relief of Trustees. Page 393. Perrins v. Bellamy was atfiiined on appeal 
 (1899) 1 Ch. 797. It is not necessary to plead s. 31 (a) specially, tliough it is 
 advisable to do so ; Singlehurst v. Tapscott (1899) W.N. 133. 
 
 Limitations. Page ,394, line 11, add, "or not accounted for"; Briggs v. 
 Wilson(1897)24 A.R. 521. 
 
 Actions Against Representatives. S. 35. Where notice is given undei- s. 35 
 that a claim against an estate is rejected, the action must be commence 1 
 witliin the si,\ months prescribed, and that period cannot be e.\tend<Kl even 
 though by reason of the death of an administrator during the six months, and 
 the non-appointment of an administrator <Ie. hoiii.s von witiiin that time, the 
 due commencement of an action lias become impossible ; (iooderham v. Moore 
 (1899)31 O.R. 8(i. 
 
 Compensation— Appeal. Page .398. An appi^al lies to a Divisional Court 
 trom an order of a SSurrogate Court Judge allowing compensation to an ex- 
 ecutor ; Re Alexander (1899) 31 O.R. 167. 
 
 Bills of Lading. 
 
 Where No Property Passes by Indorsement. Page 441. Calm \ . Pockett's 
 Bristol Channel Packet Co. was reversed (1899) 1 Q.B. 64.3. 
 
 Assignments and Preferences. 
 
 Pressure. Page 401. A trustee wiio witliout the knowledge of and without 
 any pressure or re<|uost by his rest id iji«' Iriixt conveys property to tliem to 
 make good brcaclies of trust does not act voluntarily, Imt under pressure, if 
 lie believes and apprehends that he may be pro.secuted criminally ; Sharp v. 
 .Jackson (1899) A.C. 419. 
 
 Negativing Intent. Page 402(1). Add, after Webster v. Crickmoro, refer- 
 ence to .Tones v. Kinney (1885) 11 S.C.R. 708. Where a mortgage to secure a 
 hoiiii fide advance to a person Vwdieved to be solvent was not registered, be- 
 cause the mortgagee objected to appearing in the trade slieet.s as a money 
 lender, and not with the ol)ject of protecting the debtor, the security was 
 upheld ; Morris v. Morris (1895) A.C. (125. 
 
 Re New Prance and tiarrard's Trustee v. Hunting was affirmed by the 
 House of Lords, suh iinm. Sharp v. .lackson (1899) A. C. 419 ; .see above. 
 
 Priority over attachments. -Page 468, line 4, Re Dyer v. Kvans is reported, 
 30 0. R. 637. b . . J 1 . 
 
11 
 
 i 
 
 m 
 
ADDITIONAL NOTES. 
 
 xlv. 
 
 Claims of Creditors. -Page 4*58. A guarantee l)j' an insolvent of notes not yet 
 ihxv cannot form tlu^ Imsis of a claim which may l>e proved against his Jestate ; 
 Clappcrton v. .Mut.hmoor (1S<I») 3li O. K. 5!».''). 
 
 Unsatisfactory Answers.— Page 472. A County Co\irt .fudge ha.s no power to 
 commit for unsatisfactory answers: Re Roolion (1S09) 31 <). R. I'2"2. 
 
 Inspectors. — Page 474. Inspectors must l)e wholly disinfeiested and will not 
 he allowed to jmrchase the estate ; (iastonguay v. Savoie (ISOJt) 2!) S.C.R. 613. 
 
 Registration of Co-Partnerships. 
 
 \<li| reference to Dueher Watch 
 
 Suing Partner? Individually. Page 4)Ki. 
 Case Co. V. Taggart (I8}t9) ■.'« A. R. 20,"). 
 
 Bills of Exchange. 
 
 Holder in Due Course. Page 543. Whcie a creditor ol>tained from his 
 <lel)tor a promissory note for the debt after an attaelinient had heen is.sued 
 against the ereditor, and the creditor indorsed the note to the plaintiff aftei' 
 maturitv, the plaintifl"s title was l)ad as against tiu' attaching creditor ; Clay 
 V. (Jill flHiW) 12 .Man. L. R. 4(i.-), 19 C. L. T. l,-)4. 
 
 Stranger Signing Bill. I»age .)3.5. To make a stranger liable to the payee, 
 tlie latter nnist ha»e indorsed the bill before the stranger indoi'sed it, so as to 
 make the bill complete; Canadian Bank of t'ommerce v. Perram (1899)31 
 0. R. IIG; Small v. Henderson (1899) 19 C. L. T. 267, 
 
 Measure of Damages. Page ."i4."), See .Jenkins v. Arnold-Forteseue (1899) 
 HtC. L T. 42. 
 
 Cbeque. Page .")47. Bavins v. London and South Western Bank was 
 atHrmed on appeal (19(M») 1 Q. B. '270. 
 
 Law of Transfer of Property. 
 
 Page .")91. See Re Davenpoit, Turner v. King (189.")) 1 
 
 Release of Powers. 
 
 Cii. 3(il. 
 
 Improvements Under Mistake of Title. Page .')92. A mortgagee from the 
 person wlio makes improvements under a mistake of title is an assign and has 
 a lien on tlie land to tlie extent of Ibc im])rovenients, against which the costs, 
 wiiich have IxicTi awarded against otjier pur.sons, of an action to recover the land 
 cannot be set-otf, but mesne profits prior to tlie date of the mortgage will lie 
 setoff; McKil)bon V. Williams (IH97) 24 A. R. 122; Thurea.son v. Thuresson 
 (1899) 18 P. R. 414. Tliere can be no mistake of title where a contract of 
 sale is obtained from a locatee of a free grant lot in direct violation of an 
 express statutory jnovision : Meek v. P.irsons (1899) 31 O. R. ."i4. 
 
 Purchases of Reversions. A mortgage of a reversionary interest at 60 per 
 cent. iuLcrest was lield tn be unconscionable in Rae v. .lo^'ce (1892) 29 L. R. 
 Ir. .-)<»(). 
 
 Mortgages of Beal Estate- 
 
 Making Unnecessary Costs, 
 under s. 31 pending a notice 
 C. L. T. 31.-.. 
 
 Page 610. A sale of a distress may be allowed 
 if sale; Plaxton v. Barrie Loan Co. (1899) 19 
 
 Wills. 
 
 Presumption of Due Execution. Page 6.50, line .■). Where a will in the 
 hanilwriling of tlie testator appeared to be duly executed but the witnesses 
 could not be found or their handwriting proved, an action to establish the 
 will was dismissed ; Williamsim v. Williamson (1889) 17 0. R. 7.34. 
 
 Gifts to Witnesses. Page 6.V2. Kvidence is admissible to shew that the mis- 
 take of iiaving a legatee witness the will has been remedied by a subsequent 
 acknowledgnu!nt by the testator and due attestation by two other witnesses, 
 and although the name of the legatee is not struck out, the legacy is valid ; Re 
 Sturgis, WebliTig v. Van Kvery (1889) 17 O.R. 342. 
 
 Death of Beneficiary. Page 6.57. Wheie a residue was bequeathed to the tes- 
 litor's children and tiieir issue, and one of the children was dead at the date 
 
AODITIONAL NOTES. 
 
 xlvi. 
 
 i)f the will, leaving i tsuf, tlu' iH«ue of i "^ child were deolared to be entittMl 
 U) the Hhare of the parent, if not under the lernis of the will, hy virtue of s. 36 ; 
 Ko<;h V. Henry (1H94) 26 O.R. 87. 
 
 I 
 
 Locke King's Act. I'age 6.'iS. A direction that trade debts shall be paid ou 
 f perHoniil estate hIiows a sutticient intention that a devisee of projierty com 
 .risi d in a mortgage, given as collateral Hcturity for a trade debt, shall be free- 
 'roni tlie encumbrance ; Re Fleck, Colston v. Roberts (1888) 37 Ch. I). 677. 
 
 Limitation of Actions. 
 
 Title to Realty Extinguished. I 'age 674. The effect of extinguishment is not 
 e<]uivalent to a conveyance : Re Jolly, (Jathercole v. Norfolk (1900) 1 Ch. '292, 
 
 Tenant at Will. I'age 675. Where a plaintiff lived on a farm with his father 
 and motliei-, whom hi- covenanted to maintain until July, 1888, when he went 
 away with no definite agreement or understanding, hut with the expectation 
 that they w<mld renuiin, the father was said to have i)ec(mie tenant at will at 
 the time tlie plaintiff wont away ; Cope v. Crichton (189(t) 30 O.R. 603. 
 
 Ad\ «r8e Possession. Page 677. The owner must kwe his right to land either 
 by 1m njn dispossessed of it, or l)y iiaving discontinued his possession. When 
 posse,- "n or dispossession has to be inferred from equivocal acts, the intention 
 with w, '"-h they arc lone is all important. Where a person who is entitled to 
 a right ' "ay over tiic land of another erects gates at each end of the way and 
 keeps then locked, the acts ai'e merely equivocal, and as thej' may be done 
 merely witli the intention of protecting the right of way from invasion by the 
 public, they are not a dispossession of the owner of the land ; Littledale v, 
 Liverpool College (1900) 1 Ch. 19. Acts of user committed upon land, which 
 do not interfere, or are consistent, with the purpose to wliich the owner intends 
 to devote it, do not amount to a dispossession, and are not evidence of dis- 
 continuance of possession ; Leigh v. Jack (1879) .T Ex.D. 264. 
 
 Possession by Trespasser. Page 678. Where a Viuilding on a farm in posses- 
 sion of a trespasser is destroyed by fire, and during its rebuilding the tres- 
 passer does not actually live upon the farm, but stays in the neighborhood, and 
 the work of the farm goes on as usual, the possession is a visible one by reason of 
 the building operations and the farm work ; Hartley v. Maycock (1897)28 
 O.R. 508. 
 
 Entry. Page 680. Staj-ing on the land as a guest of the party in possession 
 is not an entry as owner ; an entry by one tenant in common is not an entry 
 by his co-tenant : Hartley v. Maycock (1897) 28 O.R. 508. 
 
 Express Trusts. Page 682. A conveyance of land to trustees for a term of 
 years upon trust to raise specific sums is an express trust within s. 24 and the 
 title of the persons for whose benefit the money is to be raised will be extin- 
 guished at the same time as if no trust existed, i.e., generally after 10 years ; 
 Williams V. Williams (1900) 1 Ch. 152. 
 
 Execution. Page 683. The right of an execution creditor under a fi. fa. lands 
 is a " lien," and the money mentioned in the writ is "money charged on 
 land " within s. 23, and although the writ is duly renewed tj^e lien is extin- 
 guished after the writ has been ten years in the SherifTs hands, unless there 
 has been a payment or acknowdedgment in the meantime ; Neil v. Almond 
 (1897)29 0.R.'63. 
 
 Vendor and Purchaser. 
 
 Consequential Relief. Page 098. Where an order was made under s. 4 
 referring all questions and matters arising out of an agreement for a lease to a 
 Referee, an action brought by the intending lessors for rent, before the lease 
 was settled or the reference completed, was perpetually stayed ; Toronto v. 
 Canadian Pacific Ry. Co. (1899; 18 P.R. 374, 451. 
 
 Registration of Deeds. 
 
 Registration as Notice. Page 761. Registration of an Assignment of a 
 contract of sale is notice to a jjurchaser from the assignor, although the latter 
 after the assignment received the convej'ance from the original vendor ; Cope 
 V. Crichton (1899) .30 O.R. 603. 
 
 i 
 
ADDITIONAL NOTES. 
 
 xlvii 
 
 DlBChargea of Mortgaxe. Page 76r). Tlio exeiutioii and registration of :\ dis- 
 charge of mortgage in fee simple made by a tenant in tail, reconveys the land 
 to the mortgagor barred of the entail, i.e., the whole estate held by the mort- 
 gagee i« conveyed to the mortgagor : Lawlor v. Lawlor (1882) 10 S.C.K. 104. 
 
 Property of Married Women. 
 
 Liability for Torts. Page 786. See Earle v. King.seote (1900) 1 Ch. 203. 
 
 Commitment to Oaol. Page 7S8. An ordei for payment into Court by a 
 married woman of moneys received l)y her tw trustee, Viut which order is not 
 made on the basis of a devastavit, is a personal ordtr and mav be enforced by 
 .ittachment! Re TurnbuU, Turnbull v. Nichols (UKR)) 1 Ch. 180. 
 
 Death of Wife. Page 788. In the absence of a contract by her husband 
 the funeral expenses of a married woman v>ere ordered to be paid out of her 
 estate ; Re ({ibbons (1893) 19 C.L.T. MH. 
 
 ^ ^ Landlord and Tenant. 
 
 Taxec. Page S27. Karlow v. Stevenson is reported (ISHXt) 1 Ch. 128. 
 
 Notice to Quit. Pa^e 8'i7. A notice given on !Mai'ch 24th, 1898, to quit on 
 .Iiine 24tli, 1898, or " at the end of your current year's tenancy," is a good 
 notice for March 2.5th, 1899, when the next year's tenancy expired, as it could 
 not be uiidci'stood by the ten'ant that the words "curKUt year "' applied to 
 the few hours of the year which had still to run ; Wride v. I)ver(1900) 1 Q.B. 
 2.S. 
 
 Overholding Tenants- 
 
 Who Are Tenants. Page HM 
 purchase who makes defaidt may, in New Hrunswick, lie ejected as a 
 
 at will : Ackerman v. 
 
 .■\ pcr.son in possession inuler an agreement for 
 
 tenant 
 Boyd (1899) 19 C.L.T. 403. 
 
 Demand. Page 8.37. The demand of possession ncccl not be signed ; Re 
 Sutherland and Portigal (1S99) 19 C.L.T. 2ri7. ' 
 
 6 
 
PART I 
 
 Construction and Operation of Statutes* 
 
 HI 
 
REVISED STATUTES OF ONTARIO. 
 
 SECTION I. 
 
 PRELIMINARY 
 
 CHAPTER 1. 
 
 An Act respecting the Form and Interpretation of 
 
 the Statutes. 
 
 Short Title, s. 1. i 
 
 Mode of citing Revised Statutes, 
 
 s. 2. 
 Form of Statutes, sb. 3, 4. 
 Amendment of an Act by an Act 
 
 of same Session, s. 5. 
 Time of Commencement of Acts, 
 
 &. 3. 
 Application of this Act, a. 7. 
 Law always speakino, s. 8 (1). 
 ^ ords and terms— 
 
 "shall "and " may," 8. 8 (2). 
 
 "herein," 9. 8(3). 
 
 "now "or "next," 8. 8(4). 
 
 " Her Majesty," " TheCrown," 
 etc., 8. 8 (6). 
 
 " Lieut.-Governor,"etc.,8.8(6). 
 
 " Lieut. -Governor in Council," ' 
 B. 8 (7). ! 
 
 "United Kingdom," " United j 
 States," B. 8 (8). | 
 
 "Upper Canada," 8. 8(9). 
 
 " Lower Canada," s. 8 (9). 
 
 " proclamation," s. 8 (10 , 11). 
 
 " Great Seal, 8. 8 (10). | 
 
 "county," 8. 8(12). 
 
 " person," 8. 8 (13). I 
 
 " writing," " written," s. 8(14). i 
 
 "month," "year," 8. 8(15). I 
 
 " holiday," s. 8 (16). 
 
 "oath," "affidavit." "swear," 
 
 "sworn," 8. 8(18). 
 ' ' sureties, " ' ' security, ' ' s. 8 (20). 
 " Registrar." s. 8 (21). 
 " Magistrate," " Two .Justices," 
 
 s. 8 (22). 
 " Legally qualified medical prac- 
 titioner," s. 8 (23). 
 " Rules of Court," s. 8 (36). 
 ExpreBsing number or gender, 
 
 8. 8 (24). 
 Constituting bodies corporate, 
 
 8. 8 (25). 
 Appointing or relating to public 
 
 officers, s. 8 (26, 27). 
 "Felony" or "Mi8demeai>our" 
 in Revised Statutes, s. 13. 
 Computation of time, b. 8 (17). 
 Who may administer and certify 
 
 oaths, 8. 8 (18, 19). 
 Offices to be held during plea- 
 sure, s. 8 (28). 
 Imprisonment where no place 
 
 specified, s. 8 (29). 
 Recovery of penalties, s. 8(30, 31). 
 Application of penalties when not 
 otherwise appropriated, 8. 
 8 (30, 32). 
 
 
 [8] 
 
Chap. 1. 
 
 INTERPRETATION ACT. 
 
 Sec. 1. 
 
 Paying oveu and accounting for 
 
 public moneys, s. 8 (33). 
 Acts to be done by more than two 
 
 may be done by a MA.10RITY, 
 
 8. 8 (34). 
 Deviations from prescribed forms, 
 
 s. 8 (35). 
 Extent of power to make rules 
 
 OF court, 8. 8 (37). 
 Power to make by-laws, rules, 
 
 &<•., TO INCLUDE power TO 
 
 alter, 8 8 (38). 
 
 All Acts to be deemed Public 
 Acts, s. 8 (39). 
 
 Preamble to be part of an Act, 
 8. 8 (40). 
 
 Acts to be deemed remedial, s. 8 
 (41). 
 
 References to sections by num- 
 ber, 8. 8 (42). 
 
 Certain preliminary Acts may be 
 done before commencement 
 of Act, .t. 8 (43). 
 
 Expressions used in regulations 
 and certain other instru- 
 ments to have same meaning 
 
 AS IN Act AUTHORIZING, B. 8 
 
 (44). 
 Power to amend or repeal Acts, 
 
 8. 8 (45). 
 Repeal of Acts — 
 
 Not to revive repealed Acts, a. 8 
 
 v46). 
 
 Officera appointed, acts done cr 
 penalties incurred under re- 
 pealed Act, B. 8 (49-61). 
 
 Rules, &c., made before repeal, 
 s. 8 (52). 
 
 AppointmentB, and securities 
 given before repeal, a. 8 
 (53). 
 
 Not to be deemed a declaration 
 that repealed Act was in 
 force, B. 8 (64). 
 Acts not to involve a declaration 
 AS to previous state of the 
 LAW, 8. 8 (54-56). 
 Re-enactment of an Act not to iik 
 
 AN adoption OF. TUDICIAL con- 
 struction, a. 8, (67). 
 
 Acts not to affect the Crown un- 
 less so declared, 8. 8 (58). 
 
 Other rules of con.struction ap- 
 plicable, a. 8 (59). 
 
 Interpretation of Acts relating 
 to legal matters, 8. !). 
 
 Interpretation of Acts relating 
 TO Municipalities, a. 10. 
 
 Where an Act is an offence under 
 two Act.s, how punishable, 
 
 B. 11. 
 
 Interpretation of this Act, a. 12. 
 "Felony," "Misdemeanour," 
 in Revised Statutes, a. 13. 
 
 HER MAJESTY, by and with the advice and consent ot 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 Short title, 1. This Act maybe cited as "The Interpretation Act,' 
 
 R. S. O. 1887, c. 1, s. 1. 
 
 What to con- 2. This Act and following sener. of Acts shall constitute 
 
 Re^vUed ' '^^^ '^^^ ^^^ ^^ cited for all purposes as " The Revised Statutes of 
 
 Statutes of Ontario, 1897 ;" and any chapter of the said Revised Statutes 
 
 Ontario." |jjj^y |jg cited and referred t o for all purposes whatever , either 
 
 by its title as an Act, or by its short title, or by using the 
 
 ma7 beTited. expression "The Act (or The Revised Statute) respecting — " 
 
 (adding the remainder of the title given at the beginning 
 
 of the particular chapter), or by using the expression " The 
 
 Revised Statutes, 1897 " or " The Revised Statutes of Ontario, 
 
 1897," together with a reference to the number of the particular 
 
 chapter in the copies printed by the Queen's Printer. R. S. O. 
 
 1887, c. 1, s. 2. 
 
 ^ 
 
 Formof t'liact- 3. The following words may be inserted in the preambles of 
 
 ing clause. statutes.and shall indicate the authority by virtue of which they 
 
 are passed : " Her Majesty, by and with the advice and consent 
 
*m 
 
 Act: 
 
 i 
 
 Sec. G (1). INTERPRETATION ACT. Chap. 1. 6 
 
 of the Legislative Assembly of the Province of Ontario, enacts 
 as follows.^' R. S. 0. 1887, c. 1. s. 3. 
 
 4. After th i insertion of the words aforesaid, which shall Provision* to 
 follow the setting forth of the considerations or reasons upon concise form, 
 which the law is grounded, and whif^h shall, with these consid- 
 erations or reasons, constitute the entire preamble, the various 
 provisions of the statute shall follow in a concise and enuncia- 
 
 tive form. R. S. O. 1887, c. 1, s. 4. 
 
 5. Any Act of the Legislature of Ontario may be amendedi Acts may be 
 altered or repealed by any Act to be passed in the same Session r^^fe^d "^ 
 
 thereof. R. S. O. 1887, C. 1, S. 5. during Session 
 
 in which 
 
 tt. — (1) The Clerk of the Legislative Assembly shall endorse Endorsement 
 on every Act of the Legislature of Ontario, immediately after "" Acts, 
 the title of such Act, the day, month and year when the same 
 was by the Lieutenant-Governor assented to, or reserved ; in 
 the latter case, the Clerk of the Legislative A.ssembly shall also 
 endorse thereon the day, month and year when the Lieutenant- 
 Governor has signified either by speech or message to the Legis- 
 lative Assembly, or by proclamation, that the same was laid 
 before the Governor-General in Council, and that the Governor- 
 General was 'Dleased to as.sent thereto. 
 
 (2) Such endorsement shall be taken to be a part of the Act ; Time of-com 
 and th ^date of the assent or signification, as the _case may b e, "lencement. 
 i^hall be the date of the c o mmencement of "E he Act,lF no later 
 commencement is therein provided. R. STO. 1887, c."~T7"sr^ — " 
 
 1. — (I) This section and sections 8 to 12 of this Act 
 
 This and fol- 
 
 and each provision thereof, shall extend and apply to these '9win(f sec- 
 Revised Statutes of Ontario and to every Act of the Lcl, islature cept'^is to 
 of Ontario, passed after the said Revised Statutes take efFect,(*PP'y *° *'^ 
 except in so far as the provision is inconsistent with the ' 
 intent and object o± such Act, or the interpretation which 
 such provision would give to any word, expression or 
 clause, is inconsistent with the context, a.id except in so 
 tar as any provision thereof is in any such Act declared not 
 applicable thereto. 
 
 (2) The omission in any Act of a declaration that The Inter-]ExpTeta 
 pretntion Act shall apply thereto, shall not be construed tothatTct^shall 
 prevent its so applying, although such express declaration may Vppiy un-^ * 
 be inserted in some other Act or Acts of the same Session. f'"'<=*'*''"y- 
 R. S. 0. 1887, c. 1, .s. 7 ; (JO V. c. 2, s. 1. 
 
 H. Subject to the limitations in the preceding section of this How enact- 
 Act — in every Act to which this section applies, 'nents shall be 
 
 construed. 
 
 1. The Law .shall be considered as always speaking, and Kxpressionsin 
 whenever any matter or thing is expressed in the present tense, P»''*«ent tense 
 J the same is to be applied to the circumstances as they arise, so 
 
T 
 
 Chap. 1. 
 
 INTERPRETATrON ACT. 
 
 Sec. 8 (1). 
 
 i 
 
 1 
 
 i 
 
 "Shall" and 
 "may." 
 
 " Herein." 
 
 " Now," and 
 "next." 
 
 " Her Majes- 
 ty," etc. 
 
 " Lieutenant- 
 Governor," or 
 "Governor." 
 
 " Lieutenant- 
 Governor in 
 Council," etc. 
 
 that effect may be given to each Act and every part thereof 
 according to its spirit, true intent and meaning : 
 
 2. The word " jhall " shall be construed as imperative and 
 the word "maj^" as permissive; 
 
 S. Wherever the word " herein " is used in any section of an 
 Act, it shall be understood to relatevt p the whole Act and not to 
 that section only : 
 
 4. The words " now " and "next" shall be construed as 
 having refei-ence to the time wh^~^e Act was presented for 
 the Royal Assent ; 
 
 ."). The words " Her Majesty," " the Queen," or " the Crown," 
 shall mean Her Majesty, Her Heirs and Successors, Sovereigns 
 of the United Kingdom of Great Britain and Ireland ; 
 
 G. The words " Lieutenant-Governor," or " Governor," shall 
 mean the Lieutenant-Governor for the time being of Ontario, 
 or other the Chief Executive Officer or Administrator for the 
 time being carrying on the government of Ontario, by whatever 
 title he is designated ; 
 
 7. The words " Lieutenant-Governor in Council," or " Gov- 
 ernor in Council," shall mean the Lieutenant-Governor of 
 Ontario, or person administering the government of Ontario 
 for the time being, acting by and with the advice of the Execu- 
 tive Council for Ontario ; 
 
 " United 
 Kingdom,' 
 " United 
 States." 
 
 8. The words " the United Kingdom" shall mean the United 
 Kingdom of Great Britain and Ireland ; and the words " the 
 United States" shall mean the United States of America : 
 'and generally, the name «.ommonly applied to any country, 
 •place, body, corporation, society, officer, functionary, person, 
 poratmniT, etc. party or thing, shall mean such country, place, body, corpora- 
 /tion, society, officer, functionary, person, party or thing, 
 ialthough such name be not the formal and extended designation 
 jthereof ; 
 
 Names of 
 places, cor- 
 
 " Ui)i)er Can- 
 ada,^' " T ""— 
 Cannda.' 
 
 9. The words "Upper Canada" .shall mean all that part 
 
 ada,^' "Lower Qf Canada which formerly constituted the Province of Upper 
 
 Canada ; and the words " Lower Canada " shall mean all that 
 
 part of Canada which foi'merly constituted theProvince of Lower 
 
 Canada ; 
 
 "Proclama- 10. The word "proclamation" shall mean a proclamation 
 Seal'." " ^'^'"** under the Great Seal ; and the expression " Great Seal " shall 
 mean the Great Seal of Ontario ; 
 
 Lieutenant- H. Where the Lieutenant-Governor is authorized to do 
 Governor act- ^ny act by proclamation, such proclamation is to be under- 
 mation. stood to be a proclamation issued under an order of the Lieu- 
 
 tenant-Governor in Council ; but it shall not be necessary that 
 it be mentioned in the proclamation that it is issued under such 
 order ; 
 
Sec. 8 (19). 
 
 INTKRI'HETATIOX ACT. 
 
 Chap. 1. 
 
 and 
 
 12. Tlie word " county" .shall include two or more counties "County." 
 united for purpo.ses to whicli the enactment relates; 
 
 V.\ The word " per.son " shall include any body corporate " Persi.n." 
 [or politic, or party, and the heirs, executors, admini.stra- """'^ 
 tors or other legal repre.sentatives of.'-uch person, to whom the 
 context can apply according to law; 
 
 14. The words " writing," " written," or any term of 
 like import, shall include words printed, painted, engraved, 
 lithographed, photographed, phonographed, or otherwise traced 
 
 )or copied ; 
 
 15. Th e word " month ^jhall meau a calendar month ; and 
 the word " yea r, " a calendar yeai" . R. S. O. ISSv, c. 1, s. .S (1-15) . 
 
 l(i. The word " holiday " shall include Sundays, New Year's 
 Day, Good Friday, Easter Monday, and Christmas Day, 
 Dominion Day, the day ap])ointed for the celebration of the 
 birth-day of Her Majesty or of any of Her Royal Successors, 
 Labour Day, and any day appointed by proclamation of the 
 Governor-General or Lieutenant-Governor as a public holiday 
 or for a General Fast or Thanksgiving. R. S. O. 1887, c. 1, 
 s. 8 (lU) ; 60 V. c. 15, Sched. A (1) ; 
 
 " WiitiiiK," 
 "Written." 
 
 "iMoiitli," 
 "Year." 
 
 "Holiday." 
 
 17. If the time linuted by an Act for any proceeding, or for 
 the doing of anything under its ju'ovisions, expires or falls 
 upon a holiday, tht' time .so limited shall extend to, and such 
 thing may be done on, the day ne.xt following which is not a 
 
 , holiday. R. S. O. 1 887, c. 1 , s. 8 (1 7) ; 
 
 [Fur legal ineanlnq of a^i missions relative to time see Cap. 
 144.] 
 
 18. The word.s "oath" and "affidavit" shall in the case 
 of persons for the time being allowed b}' law to affirm or 
 declare instead of swearing, include affirmation and declara- 
 tion : the word "swear" in the like case hIuiII include affirm 
 and declare, and " sworn " shall includt; affirmed and declared. 
 
 I And in every case where an oath, affirmation or declaration 
 is directed to be made before any person or officer, such person 
 or officer shall have full powei' and auth(jrity to administer the 
 same and to certify to its having been made. 60 \. c. 2, s. 2. 
 
 19. Where by an Act of the Legislature of this Province, 
 or by a rule of the Legislative Assembly, or by an order, 
 rej^'ulation or commission made or i.ssued by the Lieutenant- 
 Governor in Council, under a law authorizing him to require 
 the taking of evidence undei- oath, an oath is authorized or 
 directed to lie made, taken or administered, the oath may be 
 administered, and a certificate of its having been made, taken 
 or administered may be given, by any one named in the Act, 
 rule, order, regulation or conunission, or by a Judge of any 
 Court, a Notary Public, Jn.stice of thi; Peace, or Commissioner 
 for taking affidavits, having authority or jurisdiction in the 
 place where the oath is administered ; 
 
 Computation 
 of time where 
 time limited 
 expires on a 
 holiday. 
 
 "Oath." 
 "Affidavit." 
 
 "Swear." 
 " Sworn." 
 
 Authority to 
 administer. 
 
 Administra- 
 tion of oatiis. 
 
 Certificate of 
 administra- 
 tion of oatlis. 
 
8 
 
 Chap. 1. 
 
 INTERPUETATION ACT. 
 
 Sec. H (20). 
 
 " -MaKiHtrate," 
 
 "Two.IuK- 
 
 tices." 
 
 " JuKtice i)f 
 the Peace,"' or 
 
 •'Maffistiate" 
 to include two 
 or more acting 
 together. 
 
 Implied 
 p iwers. 
 
 "SuretieH," 20. The Word " sure ties " shall mean sutHeient .sureties 
 "Security." g^jj^j ^j^g word " secutit v " shall mean sufficient sec urity, and 
 where these words are used, one jier.son shall be sufficient 
 therefor unless otherwise expressly required ; 
 
 "Kegistrar." 21. The word "Registrar" shall include a Deputy Registrar; 
 
 22. The word " Magistrate " .shall mean a Ju.stice of the 
 Peace ; the words " two Justices " .shall mean two or more 
 Justices of the Peace, a.ssembled or acting together ; the words 
 "Justice of the Peace" or " Magistrate" .shall include two 
 or more Justices of the Peace or Magistrates a.s.sembled or 
 acting together ; 
 
 If anything is directed to Ite done by or before a Magis- 
 trate or a Justice of the Peace, or other public fxmctionary or 
 officer, it .shall be done by or before one whose jurisdiction or 
 powers extend to the place where such thing is to be done ; 
 
 Wherever power is given to any per-son, officer or functionary 
 to do or to enforce tlie doing of any act or thing, all such 
 powers shall be understood to be also given as are necessary 
 to enable such per,son, officer, or fimctionary to do or enforce 
 the doing of such act or thing ; 
 
 28. The words " legally (jualified medical practitioner " or 
 " duly (jualified medical practitioner," or aryr othei- words im- 
 porting legal recognition of any {)er.son as a medical prac- 
 titioner or member of the medical profession, .shall mean a pei- 
 son registered under The Ontario Medical Ai-t\ 
 
 24. Words importing the singular number or the masculine 
 gender only, shall include more persons, parties or things of the 
 same kind than one, and females as well as males, and the 
 converse ; 
 
 25 Words uuiking any a,ssociation or number of persons a 
 corporation or body politic and corporate, shall vest in such 
 corporation power to sue and be .sued, contract and be con- 
 tracted with, by their corporate name, to have a common seal, 
 and to alter or change the same at their jtleasure, and to have 
 perpetual succession, and power to acquire and hold person al 
 property or movables for the purposes for which the corporation 
 is constituted, and to alienate the same at pleasure ; and shall 
 also vest in any Tnajority of the members of the corporation, 
 the power to bind the others by their acts ; and shall exempt 
 the individual members of the corporation from personal liability 
 for its debts, obligations or acts, provided they do not con- 
 travene the provisions of the Act incorporating them; 
 
 2(5. Words authorizing the appointment of any public officer 
 or functionary, or any deputy, shall include the power of 
 removing him, re-appointing him, or appointing another in his 
 stead, from titne to time, in the discretion of the authority in 
 whom the power of appointment is vested ; 
 
 •'Legally 
 qualified medi- 
 cal practi- 
 tioner," "duly 
 qualified medi- 
 cal practi- 
 tioner. " 
 Rev. Stat. c. 
 176. 
 
 Number and 
 gender. 
 
 Effect of 
 words consti- 
 tuting a cor- 
 poration, ' 
 
 \Vord.s autho- 
 rizing appoint 
 ment include 
 power to 
 remove. 
 
Sec. 8" (33). 
 
 ISTEKPUETATION ACT. 
 
 Chap. 1. 
 
 ( 
 
 27. Words directiner or empowering a imblic ofricer or tunc- •^'rv*'"'''* *" 
 
 » 1 i j.i_' ii • 1 • i u- I public otticer 
 
 tionary to do any act or thinor, or otherwise applying to him by to apply to hi» 
 his name of office, s hall in cliuk his .succ eHSorsinsuch office, 8ucceg»orK and 
 and his or their lawful de])uty ; "" '''"' ^' 
 
 Lieutenant-Governor, whether by commission or otherwise, (""f^.v^nmHote 
 
 during,' plea- 
 sure. 
 
 28. All officers heretofore or hereafter appointed by the A|»iJoiiitim-nt; 
 eutenant-Governor, whether by comm 
 
 shall remain in office during pleasure only 
 
 29. If in any Act any parson is directed to be impii^oned or iinpiiHonment 
 committed to prison, the imprisonment or committal shall, ^•'J'''';"" ?!'*■ 
 if no other place is mentioned or provided by law, be in or to inent'ioMed." 
 the Common Gaol of the locality in which the order for the 
 imprisonment is made, or if there be no Common Gaol there, 
 
 then in or to that Common Gaol which is nearest to such 
 locality ; and the keeper of any Common Gaol shall receive 
 the person, and him safely keep and detain in the Common 
 Gaol under his custody until discharged in due course of law, 
 or bailed in cases in which bail may by law he taken; 
 
 30. Whei'e a pecuniary penalty or a forfeiture is imposed Recovery of 
 for a contravention of any Act, — then, if no other mode is pre- m)"'J>^dar 
 scribed for the recovery thereof, the penalty or forfeiture shall mode is pre- 
 be recoverable with costs by civil action or proceeding at the '"^'■''^•''*- 
 suit of the Crown only, or of a private party suing as well for 
 
 the Crown as for himself, before a Court having jurisdic- 
 tion to the amount of the penalty in cases of simple contract, 
 upon the evidence of one credible witness other than the 
 plaintiff or party interested ; 
 
 If no other provision is made for the appropriation of the Appropnn- 
 penalty or forfeiture, one-half thereof shall belong to the Crown, *'"" 
 and the other half shall belong to the private plaintiff, if any 
 there be, and if there be none, the whole .shall belong to the 
 Crown ; 
 
 31. Where a pecuniary penalty or forfeiture is imposed by Casps where 
 an Act of this Province, and the amount of the penaltv or P<;c"!"'''''yi'*'»- 
 rorieiture is in any respect in tlie discretion ot the Court or iiystatutomay 
 Judge, or in case the Court or Judge has the right to impose iJ^.'^f^^ovpred 
 
 ". i. • J Ti.' i. • r J? ii ii !• onindictnu'iit 
 
 imprisonment in addition to, or in hen or, the penalty or for- 
 feiture, and no other mode is by the Act expressly prescribed 
 for the recovery of the penalty or forfeiture, the same may be 
 recovered upon indictment in the High Court of Justice or 
 General Sessions of the Peace ; 
 
 32. Any duty, penalty or sum of money, or the proceeds of Application ..t 
 any forfeiture, which is by any Act given to the down, shall, penalties, etc., 
 
 ■c Li • • 11 , • • n I- \ when not 
 
 It no other provision be made respecting it, form part ot the otherwise ap- 
 Consolidated Revenue Fund of this Province, and be accounted I'^opriated. 
 for and otherwise dealt with accordingly; 
 
 33. If any sum of the public money is by an Act appro- I'aymg over 
 priated for any purpose, or directed to be paid by the Lieuten- ;"»d account- 
 
 L n Ti-p 11 . . ^ . •' , ,. mg tor public 
 
 ant-ijrovernor, — then, it no other provision is made respecting moneys. 
 
T 
 
 10 
 
 Chap. 1. 
 
 INTEItl'RETA'lION ACT. 
 
 Sec. 8 (3;J). 
 
 \ 
 
 \ 
 
 Acts U< he 
 done by ni()r( 
 than two. 
 
 Deviation 
 
 from forms. 
 
 it, .such sum shall be payable under warrant of the Lieutenaiit- 
 Oovemoi- directerl to the Treasuroi" of the Province, out of the 
 C'onsolidntod Revenue Fund ; and all por.sons entrusted with 
 theexiicnditiMt' uf any such sum, or any part thereof, shall ac- 
 count for thv? same in such manner ami foini.with such vouchers, 
 iitsnch periods and to such officer, as the Lieutenant-Governor 
 may direct ; 
 
 / 34. Where an act or thing is required to be done by more 
 (than two persons, a majority of them may do it ; 
 
 3."). Where forms are prescribed, slight deviati(ms therefrom 
 not artectTngTlie .substance or calculated to mislead, .shall not 
 \dtiate^them. R. S. 0. 1 887, c. 1 , s. 8 ( 1 9-35) ; 
 
 RnieH of court. 36. The expression " rides of court " when used in rela- 
 i tion to any court shall mean rult^s made by the authorit}'^ 
 1 having for the time being power to nuike rules or orders 
 [ regulating the practice and procedure of such coiu't. GO V. c. 
 ^2,.s. 3(1): 
 
 37. The power of the said authority to make rules of court as 
 above defined shall include a power to make rules of court for 
 the purpose of any Act directing or authoiizing anything to 
 be done by rules of court. 60 V. c. 2, .s. 3 (2) ; 
 
 38. Where power to make by-laws, regulations, rules or 
 orders is conferred, it .shall include the power to alter or revoke 
 the same from time to time and make others. R. S. O. 1887, 
 'c. I,s. 8 (36); 
 
 Authority to 
 make rules 
 of court. 
 
 Power to 
 make by-laws, 
 etc., to confer 
 l>o\V( r to alter. 
 
 Acts to be 
 
 deenieil pnblif clared to 
 
 Acts. 
 
 I provision it is dg- 
 
 be a Public Act, 
 
 vU . i^es. Justices of the 
 
 pecjui iy pl eadgji R. S. ( ). 
 
 Preamble ti 
 be a part of 
 Act. 
 
 i9. Everv Act shall, uiiles' 
 u' a PrTva* ^ 
 aruT shall be judicial 
 Peace, and others, wi it beiii 
 1887, c. 1, s. 8 (37 pju't;. 
 
 40. The Preamble of an Act iiall be deemed a part thereof 
 and intended to assist in expla ning the purport ai ' object of 
 the Act ; 
 
 All Acts 
 medial. 
 
 41. Every Act and everj' ])rovision or enac* thereof 
 
 shall_be iieenied JNem whal^ whether its immediate ort be to 
 
 (hrect the doing of anything which the Leg^^laturi ins to be 
 for the public good, or to prevent or jnmish the d^ ig of any- 
 thing which it deems to be contrary to the public good, — and 
 Construction.) shall accordingly: receive such fair, large and liberal constru c- 
 tion ami interpretation as will be.st ensure the attainment j) f 
 the ohjef^t of the /\ ctj_ and of the provision or enactment, 
 according to the true intent, meaning and spirit thereof. 
 K. S. 0. 1887, c. 1, s. 8 (38, 39) ; 
 
 42. Where reference is made by number to two or more 
 sections, subsections or clauses in any .statute, the number first 
 elude first and mentioned and the number last mentioned shall both be deemed 
 last number, j.^ j^^, included ill the reference. 60 \^ c. 2, s. 12 ; 
 
 References to 
 numberB of 
 sections to in 
 
 m 
 
Sec. 8 (48). 
 
 INTEHPHETATION ACT. 
 
 Cliap. I. 
 
 11 
 
 43. Where an Act is not to come into operation iniinodiately Wh»t m»y be 
 on the passing thereof, and confers power to make any appoint- Ao°*b«fore'the 
 ment, to make, grant or issue any instrument, that is to say, date fixed for 
 any Order in Council, order, warrant, scheme, letters j)atent, J** "J"""**"'"' 
 rules, i-egulations, or by-laws, to give notices, to pre.scrihe forms 
 
 or to do any other thing for the purposes of the Act, that 
 power may, unless the contrary intention appears, be exercised 
 at any time after the passing of the Act, so far as may be 
 necessary or expedient tor the purpose of bringing the Act itito 
 operation at the date of the commencement thereof, sultject tt) 
 
 ^ this restriction that any instrument made under the power 
 shall not, unless the contrary intention appears in the Act, or 
 the contrary is necessary for l)ringinQ; the Act into operation, 
 
 ( come into operation until the Act comes into operation. GO V. 
 c. 2, ,s. 4 ; 
 
 44. Where any Act confers power tomake, grant or issue any Expressions 
 instrument, that is to say, any Order in Council, order, war- "ngt*|uments 
 rant, scheme, letters patent, rules, regulation.s or by-laws, issued under 
 expressions used in the instru ment , if it is made after the 31st »oy Actto 
 
 - — ' n — r — i-,^ i « , , , nave same 
 
 day or Decern her, IMUY^^ garfrr unle.ss the contrary intention meaninK as in 
 appears, have the .same respective meaning as in th(> Act con- ^^^ ^'^^• 
 {erring the power. fiO V. c. 2, s. 5 ; 
 
 45. Every Act .shall be construed as reserving tu t heiReservation of 
 
 Legislature the power of rep ealing or amending it, and of revok-i''"'\^'' ^° ^'^,, i 
 " I ,- — : 1 rrv, — H — £ " ' . -^_ l] >fal Of amend . 
 
 mg, restricting or modifying any power, privil ege or advantag e ' ' 
 
 thereby vested in or granted to any person or party, wheneye i- 
 the repeal, amendment, revocation, restr i ction, or moditiciition 
 is deemed -b-y the Lec rjslature fo^ be regiured for tl^c jniB'frc 
 good; 
 
 46. The repeal of any Act or part of an Act shall not reviv e Repeal of an 
 an}- Act or provision of law repealed by such Act or part of an Act not tore- 
 Act, or prevent the effect of any saving clause therein. R S. O. by ft rei)ealed 
 1887, c. 1, .s. 8 (40, 41); 
 
 47. Whenever any Act or part of an Act is repealed, and Repeal of pro- 
 
 otiier provisions are substituted by way of amendment, ^'1'°?! *° „ 
 . . ^ ,. , . ,, *' . •' 1 1 » substitution 
 
 revision or consolidation, any reterence in any unrepealed Act, of other enact- 
 or in any rule, order or regulation made thereunder, to such °?®"**' ''''^®'^'' 
 repealed Act or enactment, shall, as regards any subsequent 
 transaction, matter or thing, be held and construed to be a 
 reference to the provisions of the substituted Act or enactment 
 relating to the same subject matter as .such repealed Act or 
 enactment ; Provided always, that where there is no provi- Proviso, 
 sion in the substituted Act or enactment relating to the same 
 subject matter, the repealed Act or enactment shall stand good, 
 and be read and construed as unrepealed in so far, but in .so 
 far only, as is necessary to support, maintain or give effect to 
 such unrepealed Act, or such rule, order or regulation made 
 thereunder. 60 V. c. 2. s. 6 ; 
 
 48. Whenever part of an Act is repealed and an}' provision When sub- 
 substituted therefor is incorporated in such Act, unless the ^tituted pro- 
 
 '- visions to take 
 
 effect. 
 
12 
 
 Chap 1. 
 
 INTERPRETATION ACT. 
 
 Sec. 8 (48). 
 
 1 1 
 
 contraiy is expressly declared, such substituted provision shall 
 take effect from the date of the commencement of the repeal- 
 ing Act, and the expression " the commencement of this Act " 
 when used in the provision so substituted shall mean the com- 
 mencement of the repealing Act. 60 V. c. 2, s. 7 ; 
 
 ectof re- 49. Where any Act is repealed, wholly or in part, and other 
 {LrBons^acting provisions are substituted, all officers, persons, bodies politic or 
 under it. corporate, acting under the old law, shall continue to act as if 
 appointed under the new law, until others are appointed in their 
 stead : and all proceedings taken under the old law shall be 
 taken up and continued under the new law, when not inconsis- 
 tent therewith : and all penalties and forfeitures may be reco- 
 vered, and all proceedings had, in relation to matters which have 
 happened before the repeal, in the same manner as if the law 
 were still in force, pursuing the new provisions as far as thev 
 can be adapted to the old law. R.S. O. 1887, c. 1, s. 8 (42) ; " 
 
 Ast(>ivct»,etc. 
 done before 
 repeal. 
 
 Offences com 
 mitted and 
 l)enalties in- 
 cjirred not 
 affected liy 
 repeal. 
 
 50. The repeal of an Act at any tima shall not affect any act 
 done or any right or right of action existing, accruing, accrued 
 or established, or any proceedings commenced in a civil cause, 
 before the time when such repeal takes effect ; but the pro- 
 ceedings i- such case shall be conformable when necessary to 
 the repealing Act. II. S. 0. 1887, c. 1, .s. 8 (43) : 
 
 51. No offence committed, and no penalty or forfeiture incur- 
 led, and no proceeding pending under any Act at any time re- 
 pealed, shall be affected by the repeal, except that the proceed- 
 ings shall be conformable, where necessary, to the repealing 
 Act, and that where any penalty, forfeiture or punishment has 
 been mitigated by any of the provisions of the repealing Act, 
 such ))rovisioiis shall be extended and applied to any judgment 
 to be pronounced after such repeal; 
 
 52. All rules and regulations made under an Act before the 
 repeal thereof, shall continue valid until altered or annulled ; 
 
 Appointments 53. All appointments, and all bonds and securities given by 
 before"repeal. ^'^® parties appointed under any Act at any time passed and 
 afterwards repealed shall not be affected by the repeal, but 
 shall remain in full force ; and all offices, establishments, books, 
 papers and other things made or used under a repealed Act, 
 shall CDntinue as before the repeal. R. S. O. 1887, c. I, s. 8 
 (+4-46); 
 
 Repeal of Act 54. Tile rei)ea l of any Act or part of an Act sluill not be 
 Uon*that'Act 'l*^i^""^'l to be or to involve a declaration that such Ac t, or the 
 was in force, part th"reof so repealed, wasj, or was considenu l by the Legis- 
 lature to have been, previousl^ iji force. (iO V. c. 2, s. 8 ; 
 
 Repeal of 55. T he repeal or anientlment . of any Act shall jiot. be 
 
 noTa dedara ''•^'^'"'^''1 *-" t)e or to involve any dficlaiatiuJJ whatsoever a s to 
 tionof pre- t he previous state of the law . 60 V. c. 2, .s. 10; 
 
 viouB state of 
 the law. 
 
 Ruleti, etc., 
 made before 
 rejieal. 
 
Sec. 13. 
 
 INTERPRETATION ACT. 
 
 Chap. 1. 
 
 13 
 
 56. The amendment of any Act shall not be deemed to be or Amendment 
 to involve a declaration that the law under such Act was, or not^a deolara- 
 was considered by the Legislature to have been, different from tion of differ- 
 the law as it has become under such Act as so amended. (50 V. ^°^ *'*'*' °^ 
 c. 2. s. 9 : 
 
 57. Tlie Le gislature shall i iot. by re-enacting an Act or part Ke enact- 
 
 of an Act, or by revising, consolidating or amending the same, noTan'adop- L' 
 
 b e deem ed to hav e adopted the c onst ruction which has ^ tion of judicial y^ 
 jud icial decision or otherwise, been placed upon the language construction. ^^^ 
 used in .such Act or upon similar language. 60 V, c. 2, s. 11 ; 
 
 58. No provisio n or enactment in any Act shall affect in any Acts not to 
 manner or way whatsoever, the rights of Her Majesty, Her crovm unless 
 Heirs or Successors, unless it is expressly sl„j,ted therein that so declared. 
 Her Majesty shall be bound thereby ; nor if the Act be in the private Acts 
 
 nature of a Private Act, shall it affect the rights of any perso n, ■ 
 
 or body politic, corporate, or colleg ia te, such on ly ftYnnpt;ed 
 
 as are therein mentioned or referred to; 
 
 59. Nothing in this section shall exclude the application to other rules of 
 
 " constructior 
 
 apiilicable. 
 
 any Act, of any rule of construction applicable thereto, and construction 
 
 not inconsistent with this .section. R. S. 0. 1887, c. 1. s. 8, (47,48). 
 
 9. The interpretation section of The Judicature Act, so far as interpretation 
 the terms defined can be applied, shall extend to all enactments gta't"c°5l^*^" 
 relating to legal matters. R. S. O. 1887, c. 1, s. 9. 
 
 10. The interpretation section of The Municipal Act, so far 
 as the terms defined can be applied, shall extend to all enact- 
 ments relating to Municipalities. R. S. O. 1887, c. 1,8. 10. 
 
 11. Where an act or omis,sion constitutes an offence under 
 two or more Acts, or an offence both under an Act and at 
 common law, the offender shall, unless the conti'ary intention 
 appears, be liable to be prosecuted and punished under either 
 or any of tliose Acts or at common law, but shall not be liable 
 to be punished twice for the same offence. 60 V, c. 2, s. 13. 
 
 Interpretation 
 section of Mu- 
 nicipal Acts. 
 Rev. Stat. 
 c. 22S. 
 
 Offences in- 
 volving 
 liability 
 under more 
 than one Act, 
 etc. 
 
 12. The provisions of this Act shall apply to the construction Provisions 
 thereof, and to the words and expressions used therein. R. S. 0. [o this^Act*'''' 
 1887, c. 1, s. 11. 
 
 13. In tlijse Revised Statutes "felony" shall mean any Meaning of 
 crime whicli before the pjissing of TheCyivtinal Code, IHO'^, ()f .'.' ^j^j jj^*"^ 
 Canada would have been a felony under the law of Canada our " when 
 and " misdemeanour " shall mean any crime which before the "^. j" „ 
 passing of the said Code would have been a misdemeanour „te». 
 under the said law. 60 V. c. 3, s. 3. 
 
14 
 
 INTERPRETATION OF STATUTES. 
 
 NOTES. 
 
 Reviaed statu tea. 1" <tiiiHtniing Revised Statutes, the former enactments 
 may be referred to : Wlielan v. Reg. (1869) 28 U.C.R. 108. 
 
 The R«evised Statutes may be considered s-s one «eat Act and construed col- 
 lectively, jufit HK if they had been sections of one Statute : Boston v. Lelievre 
 (18BH) L.R., 3 V.C. lfi-2. 
 
 Prospective or Eetrospective. WK'-n the Legislature mean to take away or 
 K-Hsen rightM awjuired previously to the passing of an enactment, it is roaaon- 
 iible to suppose that they would use clear language for the purpose of doing so, 
 or, to piit the same thing in a somewhat flittorent form. It the words are not 
 unequivocally clear to the contrary, a provision must be construed as not in- 
 tencietl to take away or lessen existing rights. A converse rule is that, whei'c 
 the Legislature is dealing with matters of procedure as distinguished from sub- 
 stantive rights, the same jHcsumption does not apply. It is not luireasonable 
 to suppose that, in regard to mere matters of procedure, the Legislature does 
 not intend to alter the procedure even where past transactions come in ques- 
 tion ; because no perscm who sues or is sued on a cjiuse of action which existed 
 before the enactment as to proccdinx' has a veste<l right to have proceedings 
 regulatefl by a particular method of procedure which the Legislature has 
 thought imperfect, and therefore has altercfl ; and it may, therefore, well be 
 supposefl tiiat the Legislature intends to apply the new and more perfect pro- 
 cedure universally. Turnbull v. Forman (ISS.I) l,") (^. H. I) 234; Scott v. Wvc 
 (188.')) II RH. !»3: .McKay v. Martin (18i»l)-21 O.R. 104. 
 
 Follow in concise and enunciative form. Tiu' niimbers of secti(msand sub- 
 section.s are constituent parts of an Act : VVashingtim v. (i. T. R. (1897)28 S. 
 C. R. 184, see s.c. 24 A. R. 188. A proviso at the end of a sub-section will, if 
 the grammatical or ordinary sense .so requires be limited to the subsection, and 
 will not be extended to the whole section, ib. 
 
 Title. riic title may be part of the Act, luid may be referred to in order to 
 ascertain tlie intention of tlie Legislature ; O'Connor v. Nova Scotia Telephone 
 Co. (1803) 22 S.C. R. 27() : (Jreene v. Provincial Insurance Co. (1880) 4 A. R. 
 Ml. 
 
 Time of commencement. Tiie Act takes effect from the earliest hotir of tlic 
 day upon wliich it '.■eceivcs the Royal assent : Cole v. Porteous (1892) 19 A. 
 R.'lli. 
 
 "Shall" and " May." The words "may cimvey" may be construed as com- 
 pulsory ; Cameron v. Wait (1878) 3 A. R. 17.'). 
 
 AlHrmative words in a statute saying tliat a thing may be done in one way 
 do not con.stitute a proliibiti(m to its V)eing done in any other way ; Wilscm v. 
 West Hartlei)ool ( 18()ri) 1 1 Jur. N. S. 12(). So that a statute that a municipality 
 " may" pass a By-law for a certain puri)osedoes not prevent it from exercising 
 its jurisdiction without al)y-law; Bernardin v. North Dufferin (1891) 19 8. C.R. 
 r)H\. The provision of the Patent a*t that the place of trial may be at the 
 place nearest the dcfeniiant's residence is compulsory, Aitcheson v. Mann 
 (1883)0 P. R. 473; i)ut a statute providing tlmt the Council of a following 
 vear may adopt lui assessment is |)erniissive only ; Re Dwyer and Port Arthur 
 (1W)1) 21 (). R. 17"). Enaliling words such as " it shall be lawful"' ore always 
 compulsory, where ihevare worils to effectuate a legal right ; Juluis v. Oxford 
 (Bishoj)) (i880) 5 App.'Cas. 214. 
 
 Herein. The word "herein" may refer either to a section or to the whole 
 act ; McOill v. Peterborough dS.'iO') 12 U. C. R. 44. 
 
 Person. The woid "jierHon" does not include a fii'm or partnershi)) 
 Bickerton v. Dakin (1890) 20 O. R. 192, rm. 
 
 1 
 
 i 
 i 
 
 I 
 
 "m 
 
 . % 
 
INTERPRETATION OF STATUTES. 
 
 15 
 
 Section. The word "section" iimv extent to several elause.s grouped 
 toptlier ; Diiin v. <iossagc (1873) « 1'. R, 103. 
 
 Holiday. The interpretation act tiy mentioning speciHc days as holidays sets 
 them apart as siicli witliin the meain'ng of another statute, pi-oviding that ilnys 
 set ai)art hy tlie Ontario Legislature as holidays siiall not lie (.oniputtd in 
 reekoning time ; Re West Toronto Election (1871)31 U. V. R. 4t»$». .5 P. R. 
 3!»4. 
 
 Time Expiring on a Holiday. 
 
 In all ca.ses wlieie the time for doing an act is 
 limited liy a statute if the last day is a holiday the time is extended, e. g. fil- 
 ing chattel mortgages, see McLean v, Pinkerton (1882) 7 A. R. 4!M>. 
 
 Corporation. Once a Comiiiiny is incorimrated it nuist he treated like any 
 otiiei' in<lependent person witli its liglits and Iial)ilities appropiiate to itself, 
 and the motives of those who took [wirt in the jiiomotion of the company are 
 ahsolutelv iirelevant in discussing what those rights anil liabilities ai'e ; 
 Solomon 'v. Solomon (IS!»7) A. (.'. 3(i. 
 
 Penal Statutes. In jjenal statutes, (juestions of doulit are to be construed 
 fav.alily to the accused ; iv Xortli (hitnrio Klection H. ('., c. .S04. 18 Kliz. 
 c. .■) is in force in Ontario and therefore an infant cannot maintain an action 
 for a penalty under the Klection Act; <iarrett v. Robert (1884) 10 A. R. »i.")0. 
 Two |)ersons may sue for tiie penalty under the words "a priyate party" ; 
 Chaput y. Robert; (1887) 14 A. R. .3.54. 
 
 During Pleasure, ('oini)are R. S. O. c. 223, s, 403 and see Vernon y. Smitli's 
 Kails (1801) 21 O. R. 331. Unless otherwi.oe provided by law or by special con- 
 tract, all servants of the crown hold their offices during pleasure and this is a 
 well undei.stood teini of the engagement throughout the |)ublic .service. 
 Shenton v. Smith (180")) A. ('. 220: Dunn y. Reg. (1800) I (,>. H. 110. An act 
 pro\ iding foi' thi' dismissal of civil servants for sjiecitic oH'eiues is inconsistent 
 with the liglit to dismiss at i)leasure ; (ioidd v. Stuart 11800) A. ('. .'u.'t; 
 Young V. Adams (1808) A. ('. 400. 
 
 FomiB. Statutory foinis may l)c divided into four classes, (a) forms mode to 
 suit ratlicr the genciality of cases than all cases ; (b) foi-nts insei-ted merely as 
 cxam))les and only to be followed implicitly so far as the (circumstances of each 
 case may admit : (c) forms which must lie followed ; (d) forms which may or 
 may not lie followed, and if followed may be safely followed. See the cases 
 collcirtcd in Trnax V. Dixon ( 1880), I7 0. R. 37.">. \'ariations accoiding to rea- 
 son and common sense may be made so long as the mateiial nsatters laovided 
 f (11- arc coi-rectly given, (ionniiill v. (iarland (1880), 12 0.R. 130. 
 
 Rules of Court. A statutory rule if validly nuulc luis the f^anie effect as a' 
 siatute. Institiitc of Patent Agents v. Loekwood (1804), A.C. 347. 
 
 Private Acts. .Alt iiough all .Acts are, unless otherwise expressly declared, 
 pul lie Ads, yet if they are in the nature of private Acts, they bind only the 
 |H'rsons mentioneil tlierein, see s. 8 (t")8), re <!oodhue (1873), UMir. ;'(*ti, and 
 should be plcailcd, Railey v. Birkenhead, 12 Heav. 443 ; Kiely v. Kiely (1878), 
 2,-)<!r. 403. 
 
 An Act will be deemed a public 
 limited, l)ailing v. llitclicock ' 
 
 .Vets conferring powers on pri 
 iietwccn the appli<ants for th'ei.. 
 
 \,A i-.M!-)! tHe operation thereof is locally 
 . 403. 
 
 or bodies are treated as ('ontracts 
 ne legislature on behalf of the public, 
 
 and are constined strictly, St. Mvii<nithe v. St. Hvacinthe (18W.'>), 2.5 S.C.R. 
 108. 
 
 When such .-\cts impose dntics and ])rovide a penalty or other remedy for 
 their violation, an action will not genorallv lie for diunages for bit-aeh of such 
 iluties, .Atkinson v. Newcjistle Wati-i-works (1877), 2 Kx.l). 441 ; ("owley v. 
 Newcastle Local Board (1802), A.C. 34.5; Johnston v. Consumers (JasCo. (1898), 
 A.C. 447. 
 
 Repeal. Where a municipality had a right of action against atuither nuuu- 
 cipality, midcr a section wliicii was after the accrual of the cause of ac^tion 
 repealed, it was held that such right of action was saved by s. 8 (.50), Morris 
 Clownship) v Huron (County) (180.5), 20 O.R. 080. 
 
 Headings. Headings of ditleient portions of a statute may he referred to to 
 • Ictcrmine the sense of any d(Md)tful expressions in a section under a particular 
 luading. Hammersmith aiid City Railway v. Brand (1800), L. R. 4H.L. 171 
 
1 
 
 16 
 
 INTERPRETATION OF STATUTES. 
 
 Donh' V. Holniwood (1880), 4 A. R. 5."),'). Thus clauses of tlie Municipal Act 
 uiidi'i' the rulnic " Markets " wei'o held to lie for the protection of markets 
 only and to he of limited application, (,'ity of Toronto v. V'irgo (189H), A.C. 88; 
 luit clauses though under a particular heading may he extended to cover other 
 (•ases, as for instance, tiie clauses under " perjury in insurance cases " in the 
 Criminal Acts were hehl to relate to all cases of perjury, R. v. Currie (1871), 
 31 UCR. ")82 : and if the meaning is plain, headings will not he allowed to 
 defeat the real purpose of the statute, Harnes v. Jones (1876), ">1 Cal. 303 ; 
 feople V. Molyueux (18()9), 40 N.Y. 113. 
 
 Preamble. Where the enacting part is clear and unamhiguous, it cannot he 
 contioUcd hy tlie lecitals ; hut where the enacting part is anihiguous it may 
 be explained l)v reference to the recitals, Hentlev v. Rotheram and Kimworth 
 l.u<al Hoard of" Health (1876), 4Ch.D. .)92 ; R. v.'\Va8hington(1881), 46 U.C.R. 
 •2-2 1. 
 
 Jurisdiction of Courts. iStatiites as to practice and procedure cannot give 
 juri.sdiction : Ahrens v. Mcdilligat (1873), 23 C.P. 171. 
 
 Adopting Judicial construction. \Vhere certain words have I'eceived a judi- 
 cial construction and are repeated without alteration in a suhsequent statute 
 the legislature mu.st he taken to have u.sed them according to the meaning so 
 placed uj)on them; Ex parte Campheil (1870), L.R. o Cli. 703; Grain v. 
 Ottawa Collegiate Institute (1878), 43 U.(.'.R. 498; Nicholla v. CummiuLr s 
 (1877), 1 .S.C.R. 395; but this rule will not be applied to a:i act of the I)o- 
 minion Parliament in the same terms as provincial acts which have been dif- 
 ferently construed in different provinces : Davidson v. Ross ( 1875), '24 (ir. '22 ; 
 but an expression in a provincial act has been held to afford good evidence as 
 to what a ceitain term, e.g., " railway track," meant in a Dominion Act : To- 
 ronto Ry. Co. V. Reg. (1896), A.C. 55"l. 
 
 English decisions. Where the Knglish Court of Appeal have j)laced a con- 
 struction upon an Knglish Statute which has been re-enacted in a colony, the 
 colonial courts should govern themselves by it : Trimble v. Hill (1880), ,'>. App. 
 Cas. 342 ; l)ut a Judge of the High Court should follow our own Court of 
 Appeal in eases of conflict, lea\ ing it to the Court of Appeal to overrule it.s 
 decision if it sees fit: MacDonald v. McDonald (1886), 11 O. R. 187; Mac- 
 Donald V. Elliott (1886), 12 O.R. 98, and upon practice points Canadian deci- 
 sions ai'c to be preferred : Cimlson v. O'Connell (1878), '29 C.P. 341. 
 
 DOMINION INTERPRETATION ACT. 
 
 The following practical differences between the Dominion and Ontario Intei'- 
 prctation Acts may he noted. Under the Dominion Intei'pretotion Act, 
 R.S.C. c. 1, s. 7, every Act of the Dominion Parliament applies to the whole 
 of Canada, except it merely amends an act which applies to the particular 
 province or provinces or its application is expressly restricted. A writing 
 does not expressly include woi'ds photograjjhed or phonographed. 
 
 No corporation is allowed to carry on the Imsiness of banking unless such 
 power is expressly conferied : s. 7 (43). 
 
 The provisions of the Ontario Act, taken from 60 Vic. c. 2, except s. 8 (47), 
 are not contained in the Dominion Act. . 
 
 1^1: 
 
PART IL 
 
 Canadian Constitutional Law. 
 
 ]171 
 
BRITISH NORTH AMERICA ACT. 
 
 IMPERIAL ACT 30-31 VICT. Cap. 3. 
 
 An Act for the Union of Canada, Nova Scotia, and 
 Ne^' Brunswick, and the Government thereof; and 
 for purposes connected therewith. 
 
 [29tk March, 1867.] 
 
 [The Statute Law Revision Act, 5(i-'t7 V. c. 1 ' . (Imp.) 
 repealed, as spent, sections 3, '25, 4.', 4S, SI, 89, 12'i and IJfB 
 and also portiovs of si'ctions 4, ■'>! and 88.'] 
 
 WHEREAS the Provinces of Canada, Nova Scotia, and 
 New Brunswick, have expressed their desire to be 
 fedei'ally united into one Dominion under the Ci'own of the 
 United Kingdom of Great Britain and Irehuid, with a consti- 
 tution similar in principle to that of the United Kingdom : 
 
 And whereas such a Union would conduce to the welfare of 
 the Provinces and promote the intei-ests of the British Empire : 
 
 And v/hereas on the establishment of the Union by authoi'ity 
 of Parliament it is expedient, not only that the Constitution 
 of the Legislative Authority in the Dominion be provided for, • 
 but also that the nature of the Executive Government therein 
 be declared : 
 
 And whereas it is expedient that provision be made for the 
 eventual admission into the Union of other parts of British 
 North America : 
 
 Be it. therefore enacted and declared by the Queen's most 
 Excellent Majest}^ bj'^ and with the advice and ccmsent of the 
 Lords Spiritual and Temporal, and (Jommons, in this present 
 Parliament assembled, and by the authority of the same, as 
 follows : 
 
 I. — Preliminary. 
 
 1. This Act may be cited as Tlie British North America short title 
 Act, 1867. 
 
 3. The provisions of this Act referring to Her Majesty the Application of 
 Queen extend also to the heirs and successors of Her Maiestv. r^ovisions j 
 
 •' "^ ' sfferrinjf to 
 [19] tha Queen. 
 
 I 
 
20 
 
 Declaration by 
 proclamation 
 of Union of 
 Canada, Novii 
 Scotia and 
 New Brnns- 
 wick, into one 
 Dominion 
 under name of 
 Canada, 
 
 BRITISH NORTH AMERICA ACT, 1867. 
 
 Kings and Queens of the United Kingdom of Great Britain 
 and Ireland. 
 
 II. — Union. 
 
 a. It .sliall be lawful for the Queen, by and with the advice 
 of Her Majesty's Most Honourable Privy Council, to declare 
 by Proclamation tliat on and after a day therein appointed, 
 not being more than six months after the passing of this Act, 
 the Provinces of Canada, Nova Scotia, and New Brunswick 
 shall form and be one Dominion under the name of Canada; 
 and on and after that day those three Provinces shall form 
 and be one Dominion under that name accordingl}-. 
 
 
 Commence- 
 ment of suli- 
 sequent jjro- 
 visions. 
 
 Meaning of 
 Canada in 
 such provis- 
 ions. 
 
 4. The subsecjuent provisions of this Act .shall, unless it is 
 otherwise expressed or implied, commence and have effect on 
 and after the Union, that is to say, on and after the day ap- 
 pointed for the Union taking eff"ect in the Queen's Procla- 
 mation ; and in the same provisions, unless it is otherwise 
 expressed or implied, the name Canada shall be taken to mean 
 Canada as constituted xnider this Act. 
 
 Four Prov- 
 inces. 
 
 Provinces of 
 Ontario and 
 Quebec. 
 
 5. Canada shall be divideil into four Provinces, named 
 Ontario, Quebec, Nova Scotia, and New Brunswick. 
 
 [Cnnadii now also includes the Provinces of Manitohn, 
 BrUish Columbia and Prince Edward Island and the North 
 West Territories.] 
 
 6. The parts of the Province of Canada (as it exists at the 
 passing of this Act) which formerly constituted I'espectively 
 the Provinces of Upper Canada and Lower Canada shall be 
 deemed to be severed, and shall form two separate Provinces. 
 The part which formerly constituted the Province of Upper 
 Canada shall constitute the Province of Ontario ; and the part 
 which formerly constituted the Pi'ovince of Lower Canada 
 .shall constitute the Province of Quebec. 
 
 Provinces of 
 Nova Scotia 
 and New 
 Brunswick. 
 
 Population 
 of Provinces 
 to be distin- 
 guished in 
 decennial 
 
 7. The Provinces of Nova Scotia and New Brunswick shall 
 have the .same limits as at the passing of this Act. 
 
 8. In the general census of the population of Canada which 
 is hereby required to be taken in the year one thou.sand eight 
 hundred and seventy-one, and in every tenth year thereafter, 
 the respective populations of the four Provinces shall be dis- 
 tinguished. 
 
 III. — Executive Power. 
 
 Executive 9 The Executive Government and authority of and ov'ei' 
 
 tinue vested" Canada is hei'eby declared to continue and be vested in the 
 
 in the Queen. Queen. 
 
 Application of lO. The provisions of this Act referring to the Governor 
 
 provisions^ Genei'al extend and apply to the Governor General for tlie time 
 
 Governor- being of Canada, or other the Chief Executive Officer or Ad- 
 
 Goneral. 
 
BRITISH NORTH AMERICA ACT, 1867. 
 
 niiii'strator, for the time being carrying on the Government of 
 Canada on belialf and in the name of the Queen, by whatever 
 title he is designated. 
 
 21 
 
 11. There shall be a Council to aid and advise in the Gov- Constitution 
 ernment of Canada, to be styled the Queen's Privy Council for Counciffor 
 Canada ; and the persons who are to be members of that Ciii\ada. 
 Council shall be from time to time chosen and summoned by 
 the G(3vernor General and sworn in as Privy Councillors, and 
 members thereof may be from time to time removed by the 
 Governor General. 
 
 18. All powers, authorities, and functions which under any All powerg 
 Act of the Parliament of Great Britain, or of the -Parliament jJ'J'J^^^^s*^*'' 
 of the United Kingdom of Great Britain and Ireland, or of the by Governor 
 Legislature of Upper Canada, Lower Canada, Canada Nova ^"[^'^''of^'*^ 
 Scotia, or New Brunswick, are at the Union vested in or exer- Privy Council 
 cisable by the respective Ciovernors or Lieutenant Governors '"' alone, 
 of those Provinces, with the advice, or with the advice and 
 consent, of the respective Executive Councils thereof, or in con- 
 junction with those Councils, or with any number of members 
 thereof, or by those Governors or Lieutenant Governors indi- 
 vidually, shall, as far as the same continue in existence and 
 capable of being exercised after the Union in relation to the 
 Government of Canaila, be vested in and exercisable by the 
 (iovernor General, with the advice or with the advice and con- 
 sent of or in conjunction with the Queen's Privy Council for 
 Canada, or any members thereof, or by the Governor General 
 individually, as the case requires, subject nevertheless (except 
 with respect to such as exist under Acts of the Parliament of 
 Great Britain or of the Pai'liament of the United Kingdom of 
 Great Britain and Ireland) to be abolished or altered by the 
 Parliament of Canada. 
 
 i 
 
 (jver 
 the 
 
 time 
 Ad- 
 
 I'S. The provisions of this Act referring to the Governor Application 
 General in Council shall be construed as I'eferring to the Gov- l^^ferriiiK to* 
 ernor General acting by and with the advice of the Queen's dovemor 
 Privy Council for Canada. 
 
 (ieneral in 
 Council. 
 
 14. It shall be lawful for the Queen, if Her Majesty thinks I'owertoHer 
 tit, to authorize the Governor General from time to time to ^^f^'^'^'t^ *" 
 apponit any person or jiny persons jonitly or severally to be c.overnor 
 his Deputy or Deputies within any part or parts of Canada, *''^"''.''";l '" 
 
 I • xi J. -i 1 • 1 • ,1^1 .. ,1 appoint 
 
 and ni that capacity to exercise during the pleasure ot the Deputies. 
 Governor General such of th(> powers, authorities, and functions 
 of the Governor General as the Governor General deems it 
 necessary or expedient to assign to him or them, subject to any 
 liiiiitaticms or directions expressed or given by the Queen ; but 
 the appointment of such a Deputy oi- Deputies shall not affect 
 the exercise by the Governor General himself of any power, 
 authority or function. 
 
TT- 
 
 22 
 
 HRITISH XOHTH AMERICA ACT, \H(]7. 
 
 C«>niiuandof iQ The Coniinand-in-Cliief of the Laiiil and Naval Militia, 
 toccpntinuc to 'iii<l of all Naval and Military Forces, of and in Canada, is 
 be vcHtwl in hereby declared to continue and be vested in the Queen. 
 
 the Qaet'ii. -^ ^ 
 
 Seat of (iov- 
 ernnient of 
 Canada. 
 
 16. Until the Queen otherwise directs the seat of Govern- 
 ment of Canada sliall be Ottawa. 
 
 IV. — Legislative Power. 
 ?f"vi-i-"r". i ^T There shall be one Parliament for Canada, consistins of 
 
 of 1 »~liaiiient , .. ^. ^t i i i n i i tx 
 
 of Cft da. tlie Queen, an Upper House styled the Senate, and the House 
 of Common.s. 
 
 [Section 18 tvas repealed by Imperial Act 38 and tii) Vict. 
 c. 88, and the followinr/ section sid)stxtiited therefor. 
 
 Privilegi's, 1§ 
 
 etc.. of Hon 
 
 The privileges, immunities, and powers to be held, enjoyed and 
 mses. exercised by tlio Senate and by the House of Commons and by the mem- 
 bers thereof respectively shall be such jvs are from time to time defined by 
 Act of the Parliament of Canada, but so that any Act of the Parliament 
 of Canada defining such privileges, innnunitiesand powers shall not confer 
 any privileges, immunities or powera exceeding those at the passing of 
 such Act held, enjoyed, and exercised by the Commons House of Parlia- 
 ment of the United Kingdom of CJreat Britain and Ireland and by the 
 members tlier^'of . ] 
 
 i|li 
 
 First Session 
 of the Parlia- 
 ment of 
 Canada. 
 
 Yearly Ses- 
 sion of the 
 Parliament 
 of Canada. 
 
 19. The Parliament of Canada shall be called together not 
 later than six months after the Union. 
 
 20. There shall be a Session of the Parliament of Canada 
 once at lejist in every year, so that twelve months shall not 
 intervene between the last sitting of the Parliament in one 
 Session and its first sitting in the next Session. 
 
 The Senate. 
 
 SeZtow"^ 31. The Senate shall, subject to the pro\isions of this Act, 
 
 consist of seventy-two members, who shall be styled Senators. 
 
 [The Sencde notv consists f 81 members and includes 
 representatives of the Provinces of Ontario, Quebec, Nova 
 Scotia, New Brunsivick, Manitoba, British Columbia, and 
 Prince Edward Island and of the North West Territories.'] 
 
 Representa- 
 tion of Prov- 
 inces in 
 Senate. 
 
 33. In relation to the constitution of the Senate, Canada 
 shall be deemed to consist of three divisions — 
 
 1. Ontario; 
 
 2. Quebec ; 
 
 3. The Maritime Provinces, Nova Scotia and New Brunswick; 
 which three divisions shall (subject to the provisions of this 
 Act) be equally represented in the Senate as follows : Ontario 
 by twenty-four Senators ; Quebec by twenty -four Senators ; 
 and the Mai-itime Provinces by twenty-four Senators, twelve 
 thereof representing Nova Scotia, and twelve thereof repre- 
 senting New Brunswick. 
 
lada 
 
 BRITISH NOUTH AMERICA ACT, 1SG7. 23 
 
 In the case of- Quebec euch of the twenty-four senators 
 representinjif that Province sliall be appointed for one of the 
 twenty-four EIectt)ral Divisions of Lower Canada specitieil in 
 Scliedule A. to chapter one of the Consolidated Statutes of 
 Canada. 
 
 23. The quaUtication of a Senator shall be as follows :— |,f ^'jj^^j.';"' 
 
 1. He shall be of the full a<(e of thirty years : 
 
 2. He .shall be either a natural-born subject of the Queen, 
 
 or a subject of the Queen naturalized by an Act of the 
 Parlian'.ent of (ireat Britian.or of the Parliainentof the 
 United Kint^dom of Great Britian and Ireland, or of 
 the Legislature of one of the Provinces of tapper 
 Canada, Lower Canada, Canada, Nova Scotia, or New 
 Brunswick, before the Union, or of the Parliament of 
 Canada after the Union. 
 
 3. He shall be legally or eiiuitably si'ised as of freehold for 
 
 his own use and benelit of lands or tenements held 
 in free and connnon socage, or seised or possessed for 
 his own use and benelit of lands or tenements held 
 in franc-aleu or in roture, within the Pi-ovince for 
 which he is appointe<l, of the value of S4,000, 
 over and above all rents, dues, debts, charges, 
 mortgages, and incumbrances due or paj'able out of 
 or charged on or aftectint; the same : 
 
 4. His real and personal property shall be together worth 
 
 S4,000 over and above his debts ami liabilities : 
 
 5. He shall be resident in the Province for which he is 
 
 appointed : 
 
 G. In the case of Quebec he shall have his real property 
 qualification in the Eilectoral Division for which he is 
 appointed, or shall be resident in that Division. 
 
 24:. The Govt'rnt)r General shall from time to time, in the Smnnioningrof 
 Queen's name, by instrument under the Great Seal of Canada, Senators, 
 summon qualitieil persons to the Senate ; and, subject to the 
 piovisions of this Act, every person so sunnnoned shall become 
 and be a member of the Senate and a Senator. 
 
 25. Such persons shall be first summoned to the Senate as summons of 
 the Queen by warrant under Her Majest3''s Royal Sign Manual fi"t body of 
 thinks fit to approve, and their names shall be inserted in the ^^"*''""*- 
 Queen's Proclamation of Union. 
 
 36. If at an}' time tm the reconmiendation of the Governor- Addition of 
 General the Queen thinks tit to direct that three or six mem- Senator.-* in 
 bers be added to the Senate, the Governor General may by sum- '^^'''*'" *"**'"'• 
 nioiis to three or six qualified per.sons (as Uie case may be), 
 representing equally the three divisions of Canada, add to the 
 Senate accordingly. 
 
24 
 
 nniTisn north amkiuca act, 1S()7. 
 
 Reiinctimi of 
 St-nate to 
 normal num- 
 ber. 
 
 Maxiniiiin 
 number nf 
 8en»ti>rn. 
 
 87. In case «>t' such addition Iteinj^ at any time made the 
 Governor (Jcncral shall not smnmon any person to the Senate, 
 except on a furthei- like direction hy tlie Queen on the like 
 reconnneniUition, until each of the three divisions of Canada 
 is represented by twenty-four Senators and no more. 
 
 28. Tlie number of Senators shall not at any time exceed 
 .seventy-eiifht. 
 
 [See note appended to nection J/.] 
 
 Tenureof place 29. A Senator shall, subject to the provisions of this Act, 
 m Seuati'. ),,^|,| j,jj^ place in the Senate for life. 
 
 ReKigiiation of HO. A Senator may by writinjf under his hand addre.s.sed to 
 llenat"' t'l*" Governor General resign his place in the Senate, and there- 
 
 upon the same shall be vacant. 
 
 Disriualiiica- 
 tion of 
 .Sfnators. 
 
 Summons on 
 vacancy in 
 Senate. 
 
 31. The ])lace of a Senator .shall become vacant in any of 
 the following cases : 
 
 1. If for two consecutive Sessions of the Parliament he 
 
 fails to give his attendance in the Senate : 
 
 2. If he takes an oath or makes a declaration or acknow- 
 
 ledgment of allegiance, obedience, or adherence to a 
 foreign power, or does an act whereby he becomes a 
 subject (H* citizen, or entitled to the rights or privi- 
 leges of a subject or citizen, of a foreign power : 
 •i. If he is adjudged bankrupt or insolvent, or applies for 
 the benefit of any law relating to insolvent debtors, 
 tir becomes a public defaulter : 
 
 4. If he is attainted of treason or convicted of felony or of 
 any infamous crime : 
 
 o. If he ceases to be qualitied in respect of property or of 
 residence; provided, that a Senator .shall not be 
 deemed to have ceased to be nualitied in respect of 
 residence by reason only of his I'esiding at the seat 
 of the Government of Canada while holding an office 
 under that Government requiring his presence there. 
 
 32. When a vacancy happens in the Senate by resignatiim, 
 death, or otherwise, the Governor General shall by summons 
 to a tit and (|ualified person fill the vacancy. 
 
 Questions as ti 
 qualifications 
 and vacancies 
 
 in Senate. 
 
 33. If any question ai'ises respecting the qualitication of a 
 mator or a vacancy in th( 
 determined by the Senate. 
 
 qualifications g(,jij|^tf,^. ^^j^. ,i vacancy in the Senate the .same shall be hoard and 
 
 Appointment 34. The Governor General may from time to time, by in- 
 Senafe* ^^ ° strument under the Grei„t Seal of Canada, appoint a Senator to 
 
 be Speaker of the Senate, and may i-emove him and appoint 
 
 another in his stead. 
 
 1 
 
 1 
 
 ■■'3 
 
niUTISH NORTH AMERICA ACT, 18^7. 26 
 
 35. Until the Parliament of Canada otherwise proviiles, the ^^°^^" 
 presence of at least Hfteen Senators, inclu(lin<; the Speaker, shall 
 he necessary to constitute a meeting of the Senate for the exer- 
 cise of its powers. 
 
 lid. Questions arising' in the Senate shall V)e decided by a Voting in 
 niajority of voices, and the Speaker shall in all cases have a ^♦'''»*«- 
 vote, and when the voices are equal the decision .shall be deemed « 
 to be in the negative. 
 
 The House of Cmnmons, 
 
 37. The House of Commons shall, subject to the provi.sions Constitution 
 of this Act, consist of one hundred and eighty -one members, of Commons'in 
 whom eighty-two shall be elected for Ontario, sixty-Hve for Canada. 
 Quebec, nineteen for Nova Scotia, and fifteen for New Bruns- 
 wick. 
 
 [The number of vievibe rs is now '213, the Province of Ontario 
 hivinjf 92, Quehce 6-'>, Nova Scotia 20, Neiv BruiiHivick 14, 
 Prince Edward Idand 5, British Columbia tj, Manitoba 7, 
 and the North West Territories 4- See Rev. Stats. C, 1886, 
 Chaps. 6 and 7 ', h5-5(l V. Chap. //.] 
 
 or 
 
 of 
 
 38. The Governor General .shall from time to time, in the ^"'""wning »f 
 Queen's name, by instrument under the Great Seal of Canada, Commons, 
 sununon and call together the House of Commons. 
 
 39. A Senator shall not be capable of being elected or of Senators not to 
 
 - •■ - — - -■ sit in House of 
 
 Commons. 
 
 sitting or voting as a member of the House of Conunons. 
 
 40. Until the Parliament of Canada otherwi,se pr^tvides, Electoral dia- 
 Ontario, Quebec, Nova Scotia, and New Brunswick shall, for 1'!','^* Pr^y*!*'*' 
 tlie purposes of the election of members to serve in the Hou.se 
 of Commons, be divided into Electoral Districts as follows: — 
 
 1. — Ontario. 
 
 Ontario shall be divided into the Counties, Ridings of Coun- 
 ties, Cities, parts of Cities, and Towns enumerated in the tii-st 
 Scliedule to this Act, each whereof shall be an Electoral Disti'ict, 
 each such District as numbered in that Schedule being entitled 
 to V(>turn one nieml)er. 
 
 2. — Quebec. 
 
 Quebec shall be divided into sixty-five Electoral Districts, 
 cninposed of the sixty-five Electoral Divisions iiito which Lower 
 Canada is at the passing of this Act divided under chapter two 
 of the Consolidated Statute.s of Canada, chapter seventy-five 
 
2() 
 
 BRITISH NORTH AMERICA ACT, 1867. 
 
 of the Consolitliited Statutes oi Lower Caiiflda, and the Act 
 of the Province of Canada of the t\venty-third year of the 
 Queen, chapter one, or any other Act amending the same in 
 force at the Union, so that each such Electoral Division shall 
 be for the purposes of this Act an Electoral District entitled to 
 retarn one nieudier. 
 
 .1— Nova Scotia. 
 
 Each of the eigiiteen Counties of Ntjva Scotia shall be an 
 Electoral District. The CVmnty of Halifax shall be entitled to 
 return two members, and each of the other Counties one 
 memV»er. 
 
 4. — Nkw Buuxswick. 
 
 Each of the fourteen Counties into which New Brunswick is 
 divided, including the City and County of St. John, shallbo an 
 Eijctoral District ; the City of St. John shall also be a. separate 
 Electoral District. Each o*' tho.se fifteen Electoral Districts 
 shall be entitled to return one member. 
 
 [Tlie above provisions as to the electoral districts of the 
 Provinces above vamed hane Jieen varied by subsequent Statutes 
 of the Parliament of Canada.] 
 
 Continuanci' 41. Until the Parliament of Canada otherwise provides, all 
 
 of existing laws in force in the several Provinces at t'r.^ Union relative to 
 
 •mul Pallia- the following matters or any of thtin, namely, — the qualifica- 
 
 mmt of Cai.a tions and dis(iualifications of persons to be elected or to sit or 
 
 provides. Vote as members of the House of Assembly or Legislative 
 
 Assembly in the several Provinces, the voters at elections of 
 
 such members, the oatl'.s to be taken bj voters, the Returning 
 
 Oihcers, their powers and tluties, the proceedings at elections, 
 
 the periods during which elections may b;> continued, the trial 
 
 of controverted elections, and proceedings incident thereto, the 
 
 vacating of seats of members, and the execution of new writs 
 
 in case of seats vacated otherwise than bj' dissolution, — shall 
 
 respectively apply to elections of n\embers to serve in the 
 
 House of Connuons for the same several l*rovinces. 
 
 Provided that, until the Parliament of (^anada otherwise pro- 
 vides, at any election for a Member of the House of Connuons 
 for the District of Algoma, in addition to persons (pialitied liy 
 the law of the Province of Canada to vote, every male British 
 suljject aged twenty -one years or upwards, being a householder, 
 shall ha\ . a vote. 
 
 [See Iter. Stat. C, ISSd, Chaps. 5 , S and 9 and subsequent 
 Jets amending these Statutes.] 
 
BRITISH NORTH AMERICA ACT, 1867. 
 
 27 
 
 43. For the first election of members to serve in the House ^J"ta for first 
 of Commons the Governor-General shall cause writs to be issued 
 by such person, in such form, and addressed to such Returning' 
 Officers as he thinks fit. 
 
 The person issuing writs under this section shall have the 
 like powers as are possessed at the Union by the officers charged 
 with the issuing of writs for the election of members to serve 
 in the respective House of Assembly or Legislative A.ssembly 
 of the Province of Canada, Nova Scotia, or New Brunswick ; 
 and the Returning Officers to whom writs are directed under this 
 section shall have the like powers as are possessed at the Union 
 by the officei'S charged with the returning of writs for the elec- 
 tion of members to serve in the same respective House of 
 Assembly or Legislative Assembly. 
 
 43. In case a vacancy in the representation in the Hou,se of A» to vacan- 
 ComuKms of anj' Electoral District happens before the meeting nieetinir'o^ 
 of the Parliament, oi- after the meeting of the Parliament befoi-e Parliament 
 pj-ovision is made by the Parliament in tliis behalf, the provi- "[gj^nTH^niade 
 sions of the last foregoing section of this Act shall extend and by Parliament 
 apply t'^ the issuing and returning of a writ in respect of such '" **^'* ^^•'^'f- 
 vacant Diotriet. 
 
 44. The Hou.se of Qonunons on its first assembling after a As to election 
 general election shall proceed with all practicable speed to elect f[(,^^„*^*f''Q^^( 
 one of its meuibers to be Speaker. mons. 
 
 45. In case of a vacancy happening in the ofilce of Speaker A.'i to filling 
 by death, resignation or otherwise, the House of Connnons "„ office"? 
 shall wit^ all practicnble speed proceed to elect another of its .Si)eaker. 
 member;- ;^ be Speaker. 
 
 46. Tiie Speaker shall preside at all meetings of the House i^peaker to 
 of Commons. ^ l"'^*"'**'- 
 
 [See /;.8-49 V. c. 1 (Dom.) which, creates the offi.ce of Deputy 
 Speaker.] 
 
 47. Until the Parliament oi' Canada otherwise provides, in Provision in 
 case of the absence for anv reason of the Si)eaker from the TS'°ii\!***"*'^ 
 chair ot tlie Hoase ot Commons tor a period ot tort\'-eight con- 
 secutive hours, the House may elect another of its 'members to 
 
 act as Speaker, and the member .so elected shall during the con 
 tinuance of such absence of tiie Speaker ha\e and execute all 
 the powers, privileges, and duties of Speaker. 
 
 48. The presence of at least twenty members of the House 'Quorum of 
 
 of Commons shal' be neces.sarv to eonsti«^.ute a meetiiv of the .„!^l'f "^ *^°"*" 
 House tor the exercise ot its powers, and lor that purpose the 
 Speaker shall be reckoned as a member. 
 
 49. Questions arising in the House of Commons shall be Voting in 
 decided by a majority of voices other than that of the Speaker SonT''^^*""' 
 and when the voices are etiual, but not otherwi.se, tlie Speaker 
 
 shall have a vote. 
 
28 
 
 BRITISH NORTH AMERICA ACT, 1867. 
 
 Duration of 50. Evoiy House of Commons shall continue for five years 
 monsr " fi'om the day of the return of the writs for choosing the House 
 
 (subject to be sooner dissolved by the Governor General), and 
 
 no longer. 
 
 Decennial Re- 51. On the Completion of the census in the year one thou- 
 
 Represen^a- ° f^^-nd eight hundred and seventy-one, and of each subsequent 
 
 tion. decennial census, the representation of the four Provinces shall 
 
 be re-adjustod by such authority, in .such manner and from such 
 
 time as the Parliament of Canada from time to time provides, 
 
 subject and according to the following rules : — 
 
 1. Quebec sliall have the fixed number of sixty-five mem- 
 
 bers : 
 
 2. There .shall be assigned to each of the other Provinces 
 
 such a number of members as Avill beart^ ~'ne pro- 
 portion to the number of its population ynf,i^ ^rtained 
 at such census) as the number sixty-five bears to the 
 number of the population of Quebec (so ascertained) : 
 
 3. In the computation of the number of members for a 
 
 Province a fractional part not exceeding one-half of 
 the whole number requisite for entitling the Province 
 to a member shall be disregarded ; but a fractional 
 part exceeding one-half of that number shall be 
 equivalent to the whole number : 
 
 4. On any such re-adjustment the number of members for 
 
 a Province shall not be reduced unless the proportion 
 whicli the number of the population of the Province 
 bore to the number of the aggrt»gate popu ion of 
 Canada at the then last preceding re-adjustment of 
 the number of members for the Pi'ovince is ascertained 
 at the then latest census to be diminished by one- 
 twentieth part or upwards : 
 
 .'). Such re-adjustment .shall not take eflect until the ter- 
 mination of the then existing Parliament. 
 
 [See now Rev. Stat. C, 1886, Cap. 6.] 
 
 Increase of oH. The numltcr of members of the House of Commons may 
 
 Hl)U8eof"coni- ^*^ from time to time increased by the Parliament of Canada, 
 mam. pi'ovidi'il rlu proportionate I'epresentation of the Provinces 
 
 prescribed by this Act is not thereby disturbed. 
 
 Money Vofo^ ; Royal Asuent. 
 
 C< 
 
 Appioprijitioii SII. Bills for appropriating any part of the public revenue, 
 and tax bill ,)j. f^^. imposing any tax or impost, shall originate in the House 
 of Commons. 
 
 Rt'coniineiidii- 54. It shall not be lawful for the House <•£ Commons t) 
 votes! '"""*'^' adopt or pass any vote, resolution, address, or bill for the 
 
BRITISH KORTH AMERICA ACT, 1867. 
 
 29 
 
 e years 
 3 House 
 al), and 
 
 le thou- 
 isequent 
 ees shall 
 oni such 
 )rovicles, 
 
 ve mem- 
 
 'rovinces 
 ~'<ie pro- 
 ; ji'tained 
 rs to the 
 rtained) : 
 
 ers for a 
 e-halt' of 
 
 Province 
 fractional 
 
 shall be 
 
 [lubers for 
 
 roportion 
 
 Province 
 
 ;\on of 
 
 ;ment of 
 
 certainixl 
 
 by one- 
 
 the ter- 
 
 mons may 
 
 Canada. 
 
 Piovinces 
 
 c revenue, 
 the Housf) 
 
 )in'nonH t) 
 ill for the 
 
 appropriation of any part c+' the public revenue, or of any tax 
 or impost, to any purpose that has not been first recommended 
 to that House by message of the Governor-General in tlie 
 Session in which such vote, resolution, address, or bill is 
 proposed. 
 
 55. Where a bill passed by the Houses of the Parliament is Koyal as.sent 
 presented to the Governor Genei-al for the Queen's assent, ho *" '^'"*' ''*'^' 
 shall declare according to his discretion, but subject to the 
 provisions of this Act and to Her Majesty's instructions, either 
 
 that he assents thereto in the Queen's name, or that he with- 
 holds the Queen's assent, or that he reserves the bill for the 
 signification of the Queen's pleasure. 
 
 « 
 
 56. Where the Governor General assents to a bill in the Disallowance 
 Queen's name, he .shall by the first convenient opportunity send Councfl of"Act 
 an authentic copy of the Act to one of her Majesty's Principal assented to by 
 Secretaries of State ; and if the Queen in Council within two ^g^g™"'^ 
 years after the receipt thereof by the Secretary of State thinks 
 
 lit to disallow the Act, such disallowance (with a certificate of 
 the Seci'etary of State of the day on which the Act was 
 received by him) being signified by the Governor General, by 
 speech or message to each of the Houses of the Parliament, or 
 by proclamation, shall annul the Act from and after the day 
 of such signification. 
 
 5 7. A bill reserved for the signification of the Queen's plea .Signification 
 sure shall not have any force unless and until within two years niea"ure o 
 from the day on which it was presented to the Governor bill reserved. 
 General for the Queen's assent, the Governor General signifies, 
 Ijy speech or message to each of the Houses of the Parliament 
 or by proclamation, that it has received the as.sent of the 
 Queen in Council. 
 
 An entry of every such speech, message, or proclamation 
 shall be made in the Journal of each House, and a duplicate 
 thereof duly attested shall be delivered to the proper officer to 
 be kept among the Records of Canada. 
 
 V. — Provincial Constitutions. 
 
 Executive Power. 
 
 58. For each Province there shall be an officer, styled the Api<ointment 
 Lieutenant Governor, appointed by the Governor General in G„(^rnors o"f' 
 Council by insti'ument under the Great Seal of Canada. Provinces! 
 
 59. A Lieutenant Governor shall hold office during the TenurootOffica 
 pleasure of the Governor General ; but any Lieutenant Cover- "^ Lieutenant 
 nor appointed after i,he connnenceuKnit of the first Session of the 
 Parliament of Canada shall not be removable within five years 
 troni his appointment, except for cause a.ssigned, which sliall 
 I'e couuaunicated to him in writing within one moutli after 
 
 (iiivenior. 
 
30 
 
 BRITISH NORTH AMERICA ACT, 1867. 
 
 the order for his removal is made, and shall be communicated 
 by message to the Senate and to the House of Commons within 
 one week tliereafter if the Parliament is then sitting, and if not 
 then within one week after the commencement of the next 
 Session of the Parliament. 
 
 Salaries of QQ The Salaries of the Lieutenant Governors shall be tixed 
 
 Governors. and provided by the Parliariient of Canada. 
 
 Oaths, etc., of (Ji_ Every Lieutenant Governor shall, before assuming the 
 GovHriior. duties of his office, make and subscribe before the Governor 
 General or some person authorized by him, oaths of allegiance 
 and office similar tf) those taken by the Governor General. 
 
 ♦ 
 
 Application of (>3. The pr(>visions of this Act referring to the Lieutenant 
 
 ferring*'t'o ^^ Governor extend and apply to the Lieutenant Governor for the 
 Lieutenant time being of each Province or other the chief executive officer 
 Governor. ^^^. administrator for the time being carrying on the govern- 
 ment of the Province, by whatever title he is designated. 
 
 Appointment 63. The Executive Council of Ontario and of Quebec shall 
 officers forOn- ^^'^ Composed of such persons as the Lieutenant Governor from 
 tarioand (^le- time to time thinks fit, and in the first instance of thefollowin<f 
 ^^^^ officoi's, namely: — The Attorney General, the Secretary and 
 
 Iiegistrar of the Province, the Treasurer of the Province, tlie 
 Commissioner of Crown Lands, and the Commissioner of Agri- 
 culture and Public Works, within Quebec, the Speaker of the 
 Legislative Council and the Solicitor General. 
 
 [See now, us to Ontario, Rev. Stat. Ont., 1897, Cap 14.] 
 
 Government ***• "^'^"^ Constitution of the Executive Authority in each 
 of Nova Scotia of the Provinces of Nova Scotia and New Brunswick shall, 
 g"f "^X"). subject to the provisions of this Act, continue as it exists at 
 the Union until altered under the authority of this Act. 
 
 All i)ower8 
 under Acts 
 to be exercised 
 by Lieutenant 
 Governor of 
 Ontario or 
 t^uebeu with 
 .idvice of 
 Executive 
 Council or 
 alon<.. 
 
 65. tVU powers, authorities, and functions which under any 
 Act of the Parliament of Great Britain, or of the Parliament 
 of the United Kingdom of Great Britain and Ireland, or of the 
 Legislature of Upper Canada, Lower Canada, oi* Canada, were 
 or are before or at the Union vested in or exercisable by the 
 respt'ctive Governors or Lieutenant Governors of those Pro- 
 vinces, with the advice, or with the advice and consent, of the 
 respective Executive Councils thereof, or in conjunction with 
 those Cou?icils, or witli any number of niend)ers thereof, or by 
 those Governors or Lieutenant Governors individually, shall, 
 as far as the same ai-e capable of being exerci.sed after the 
 Union in relation to the Government of Ontario and Quebec 
 respectively, be vested in and shall or may be exercised by the 
 Lieutenant Governor of Ontario and Quebec respectively, with 
 the advice or with the advice and consent of or in conjunction 
 with the respective Executive Councils, or any members thereof, 
 
 .i^S 
 
HUITISH XORTH AMERICA ACT, 1S67. 
 
 31 
 
 nicated 
 ; within 
 id if not 
 lie next 
 
 be tixed 
 
 ning the 
 Jovernoi 
 llegiance 
 leral. 
 
 eutenant 
 iV for- the 
 Lve officer 
 > cfovevn- 
 tted. 
 
 ;bec shall 
 rnox" from 
 following!; 
 etary and 
 vince, the 
 ;r of Agi'i- 
 cer of the 
 
 or by the Lieutenant Governor individually, a,s the case re- 
 quires, subjt '•t nevei'theless (except with respect to such as 
 exist under A^ts of the Parliament of Great Britain, in- of the 
 Parliament of the United Kingdom of Great Britain and 
 Ireland,) to be abolished or altere<l by the respective Legisla- 
 tures of Ontario and <^uebec. 
 
 60. The provisions of this Act referring to the Lieutenant Application of 
 (iovermn- in Council shall be constri ed as referriiig to the |e"r'ing""o* ''*' 
 Ijieutenant Governor of the Province acting by and with the Lieutenant 
 advice of the Executive Council thereof. 
 
 (iovernor in 
 Council. 
 
 ernraents. 
 
 (JT. The Governor General in Council may from time to Adniinistra- 
 tinie appoint an administrator to execu^'^ the office and func- etc" 'omeu^ ^ 
 tioiis of Lieutenant Governor during his absence, illness, or tenant (iover- 
 other inability. ""''• 
 
 68. Unless and until the Executive Government of any Seats of Pro- 
 Provinc6 otherwise directs V if .1 respect to that Province, the ^'"""^^ ^*' 
 seats of Government of the Provinces shall be as follows, 
 namely, — of Ontario, the City of Toronto ; of Quebec, the 
 City of Quebec ; of Nova Scotia, the City of Halifax ; and of 
 New Brunswick, the City of Fredericton. 
 
 Lecjidati ve Power. 
 
 1. — Ontario. 
 
 U.] 
 
 by in each 
 ^rick shall, 
 exists at 
 Act. 
 
 under any 
 arliami-nt 
 or of the 
 lada, were 
 le by the 
 those Pro- 
 ent, of th." 
 iction with 
 reof, or by 
 lally, shall, 
 after the 
 id Quebec 
 ised V)y the 
 tively, \sith 
 onj unction 
 ■)er8 thereof, 
 
 I) 
 
 '■3< 
 
 6i). There shall be a Legislature for Ontario consisting of Legislature 
 the Lieutenant Governor and of one House, styled the Lep-is- ^"'" Ontario, 
 lative Assembly of Ontario. 
 
 70. The Legislative Assembly of Ontario shall be composed Electoral 
 of eighty- two members, to be elected to represent the eighty- '^'**"'^'^- 
 two Electoral Districts set forth in the fii-st Schedule to this 
 Act. 
 
 [7V/(' number of members is 71010 9.i, representing 92 
 t2vctoral Districts. See Rev. Stat. Out, 18U7, Cap. 6.] 
 
 2. — QUKBEO. 
 
 li. There .shall be a Legislature for Quebec consisting of Legislature 
 the Lieutenant Governor and of two Houses, styled the Leo-is- ^""^ <^"ebec. 
 lative Council of Quebec and the Legislative A.ssembly of 
 Quebec. 
 
 72. The Legislative Council of Quebec shall be ct)mposed Clonstitution 
 of twenty-four members, to be appointed by the Lieutenant '"f Legislative 
 Governor in the Queen's name, by in.strument under the Great ^""'"^''• 
 Seal of Quebec, one being appointed to represent I'ach of the 
 twenty-four electoral divisions of Lower Canada in this Act 
 
32 
 
 BRITISH NORTH AMERICA ACT, 1867. 
 
 referred to, and each holdiri}^ office for the term of liis life, 
 unless the Legislature of Quebec otherwise pi'ovides under the 
 provisions of this Act. 
 
 ?f"Le*'i'8ktiv.' ^'^ '^''**' •["'ili^t-ations of the Legislative Councillors of 
 Councillors. ' Quebec shall be the same as those of the Senators for Queliec. 
 
 74. The place of a Legislative Councillor of Quebec shall 
 
 Resif^nation, 
 
 tion!"etc. " become vacant in the cases TniUatia mutandis, in which the 
 plac(} of Senator becomes vacant. 
 
 Vacancies 
 
 75. When a vacancy happens in the Legislative Council of 
 Quebec, by resignation, death, or otherwise, the Lieutenant- 
 Governor, in the Queen's name by instrument under the Great 
 Seal of Quebec, .shall appoint- a tit and qualified person to till 
 the vacancv. 
 
 Questions as 70. If any question arises respecting the qualification of a 
 etc. '*'"""''*'''' Legislative Councillor of Quebec, or a vacancy in the Legisla- 
 tive Council of Quebec, the same shall be heard and deter- 
 mined by the Legislative Council. 
 
 Speaker of 7 "J The Lieutenant Governor may from time to time,- by 
 
 Councn.' *^ instrument under the Great Seal of Quebec, appoint a member 
 of the Legislative Council of Quebec to be Speaker thereof, 
 and may i-emove him and appoint another in his stead. 
 
 Quorum of "78 Until the Legislature of Quebec otherwise provides, the 
 
 CouncH.'^" presence of at least ten members of the Legislative Council, 
 including the Speaker, shall be necessary to constitute a meet- 
 ing for tlie exercise of its powei's. 
 
 Voting in 
 
 Legislative 
 
 Council. 
 
 Constitution 
 of Legislative 
 Assembly of 
 Quebec. 
 
 79. Questions arising in the Legislative Council of Quebec 
 shall be decided by a majority of voices, and the Speaker shall 
 in all cases have a vote, and when the voices are equal the 
 decision shall be deemed to be in the negative. 
 
 80. The Legislative Assembly of Quebec shall be composed 
 of sixty -five members, to be elected to represent tlie sixty-five 
 electoral divisions or districts of Lower Canada in this Act 
 referred to, subject to alteration thereof by the Legislature of 
 Quebec : Provided that it shall not be lawful to present to ^he 
 Lieutenant Governor of Quebec for assent any bill for altering 
 the limits of any of the Electoral Divisions or Districts men- 
 tioned in the second Schedule to this Act, unless the .second 
 and third readings of such bill have been i)as.sed in the Legis- 
 lative As.sembly with the concurrence of the majority of the 
 members representing all those Electoral Divisions or Districts, 
 and the a.ssent shall not be gi\eii to such bills unless an address 
 has been presented by the Legislative Assembly to the Lieu- 
 tenant Governor stating that it lias been so passed. 
 
BRITISH NORTH AMERICA ACT, 18G7. 
 
 83 
 
 is life, 
 ler the 
 
 lors of 
 ^uel >ec. 
 
 c shall 
 ich the 
 
 uncil oi 
 itenant- 
 e Great 
 111 to till 
 
 ion of a 
 Legisla- 
 tl deter- 
 
 time,' by 
 meiuher 
 thereof, 
 
 L 
 
 rides, the 
 
 Council, 
 
 } a meet- 
 
 Quehec 
 
 leer shall 
 
 ual the 
 
 joinposed 
 ;ixty-tive 
 
 this Act 
 
 liitnre of 
 snt to .he 
 
 altering 
 icts n\en- 
 le second 
 
 If Legis- 
 ty of the 
 
 Districts, 
 Ml address 
 the Lieu- 
 
 
 3.— OiNTARIO AND QUEBEC. 
 
 81. The Legislatures of Ontario and Quebec respectively First Session 
 shall be called together not later than si.x months after the juresT'^ * 
 Union. 
 
 83. The Lieutenant Governor of Ontario and of Quebec Sumihoning of 
 shall h-om time to time, in the Queen's name, by instrument As^mbHel 
 under the Great Seal of the Province, .summon and call 
 together the Legislative Assembly of the Province. 
 
 83. Until the Legislature of Ontario or of Quebec otherwise Restriction on 
 pi-ovides, a person a"cepting or holding in Ontario or in Quebec holder" of 
 any office, commission, or employment permanent or temporary, offices. 
 
 at the nomination of the Lieutenant Governor, to which an 
 annual salary, oi" any fee, allowance, emolument, or profit of 
 any kind or amount whatever from the Province is attached, 
 shall not lie eligible as a mendjer of the Legislative A.ssembly 
 of the respective Province, nor .shall he sit or vote as such ; 
 but nothing in this section shall make ineligible any per.son 
 being a member of the Executive Council of the respective 
 Province, or holding any of the following offices, that is to say, 
 the offices of Attorney-General, Secretary and Registrar of the 
 Province, Treasurer of the Province, Connnissioner of Crown 
 Lands, and Commissioner of Agriculture and Public Works, 
 and, in Quebec, Solicitor-General, or .shall disqualify him to sit 
 or vote in the House for which he is elected, provided he is 
 elected while holding such office. 
 
 [Acts lutve since been passed with the view of fiorther secur- 
 inq the Independence of the Lefjidatlve Assemhlif of Ontario. 
 See Rev. Stat. Ont., 1897, Cap. U, .ss. 6 to 17.] 
 
 84. Until the Legislatures of Ontario and ((luebec respec- Continuance 
 tively otherwise provide, all laws wh'ch at the Union are in "[ection "aws. 
 force in those Provinces re.spectively, relative to the following 
 matters, or any of them, namely, — the (jualifications and dis- 
 i[aaiitications of persons to be elected i)r to sit oi- vote as 
 members of the Assembly of Canada, the (lualitications oi' 
 dis(iualitications of vot< is, the oaths to be taken by voters, the 
 Returning Officers, their powei's and duties, the proceedings at 
 elections, the periods during which such elections may bo con- 
 tinued, and the trial of c(mti'overted elections and the proceed- 
 ings incident thereto, the vacating of the seats of mendiers and 
 
 the issuing and execution of new wi'its in case of seats vacated 
 utlierwi.se than by dissolutioi., shall j-espectively apply to 
 elections of members to servt; in the respective Legislative 
 A,ssemblies of Ontario and Quebec. 
 
 [See now as to Ontario Rev. Stat. Ont. ,1897, Chaps. 9 and IL] 
 
 Provided that until the Legislatni-e of Ontario otherwi.se 
 provides, at any election for iv member of the Legislative 
 c 
 
34 
 
 KR1T[SII NORTH AMERICA ACT, 1867 
 
 Duration' of 
 Legislative 
 Assemblies. 
 
 Assembly of Ontai-io for the District of Algoina, in addition 
 to persons (jiialifiod by the law of the Province of Canada to 
 vote, every male British subject, aged twenty-one years or 
 upwards, being a householder, shall have a vote. 
 
 [See noiv Her. Stat. Ont., 1S97, Gap. 9, ss. 9- 15.] 
 
 85. Every Legislative Assendily of Ontario and every 
 Legislative Assembly of Quebec shall continue for four yeai's 
 from the day of the return of thi^ writs for choosing the same 
 (subject nevertheless to either the Legislative Assembly of 
 Ontario or the Legislati\e Assembly of Quebec being sooner 
 dissolved by the Lieutenant Governor of the Province), an<l no 
 longer. 
 
 [See now, as to Ontario, Rev. Stat. Ont, 1807, Cap. 12, s. 3.] 
 
 ■"early Se«- 
 sions of Legis- 
 lature. 
 
 Speaker, 
 Quornm, etc. 
 
 86. There shall be a session of the Legislature of Ontario 
 and of tliat of Quebec once at least in every 3'ear, so that 
 twelve months shall not intervene between the last sitting of 
 the Legislature in each Province in one session and its first 
 sitting in the next sessicm. 
 
 [»Siee no\v, as to Ontario, Rev. Stat. Ont., 18U7, Cap. 12, s. 4.] 
 
 87. The following pr()visit)ns of thi.s Act respecting the 
 House of Commons of Canada, shall extend and apply to the 
 Legislative Assemblies of Ontario and Quebec, that is to say, — 
 the provisions relating to the election of a Speaker originally 
 and on vacancies, the duties of the Speakei", the al)sence of the 
 Speaker, the (|Uorum, and the mode of voting, as if those pro- 
 visions were here re-enacted and made applicable in terms to 
 each such Leoislative Assend)lv. 
 
 [See sections 44, 45, 40, 47, 48 and 49 of tins Act, and as to 
 Ontario, Rev. Stat., Ont, 1807, Cap. 12, ss". 38-45, G5 a,nd 66.] 
 
 4. — Nova Scotia and New Brunswick. 
 
 Constitutions 
 
 ofLegis'iiturea . ,. -nt <. ;• i xt n • i i n \ ■ i l 
 
 of Nova Scotia vmces ot JNova Scotia and iNevv Brunswick shall, subject to 
 
 88. The constitution of the Legislature of each of the Pi'o- 
 
 and New 
 Brunswick. 
 
 the provisions of this Act, continue as it exists at the Union 
 until altered under the authority of this Act; and the House 
 of Assembly of New Brunswick existing at the passing of this 
 Act .shall, unless sooner dis.solved, continue foi- the period foi* 
 which it was elected. 
 
 5.— Ontario, Quebec, and Nova Scotia. 
 
 First elections. 89. Each of the Lieutenant Governors of Ontario, Quebec, 
 and Nova Scotia .shall cause writs to be issued for the first 
 election of meinliers of the Legislative Assciublv thereof in 
 such form and by such pei'son as he think fit, and at .such 
 time and addressed to such Retiu'iiing Officer as the Governor- 
 
BKITISH NORTH AMERICA ACT, 1867. 
 
 35 
 
 General directs, and so that the first election of member of 
 Assembly for any Electoral District or any subdivision thereof 
 shall be held at the same time and at the same places as the 
 election for a member to serve in the House of Commons of 
 Canada for that Electoral District. 
 
 ().— The Four Provinces. 
 
 3.] 
 
 4.] 
 
 90. The following provisions of this Act respectino- the Par- Application to 
 liament of Canada, iiamely, — the provisions relatui*^ to appro- provisions 
 priation and tax bills, the reconunendation (>f money votes, the respecting 
 assent to bills, the disallowance of Acts, and the .signification ^°°^^^° ^*' 
 of pleasure on bills reserved, — shall extend and apply to tlu* 
 Legislatures of the several Provinces as if those provisions 
 were here re-enacted and made applicable in terms to the 
 respective Provinces and the Legislatures thereof, with the 
 substitution of the Lieutenant Governor of the Province for 
 the Governor-General, of the Governor General for the Queen 
 and for a Secretary of State, of one year foi" two years, and of 
 the Province for Canada. 
 
 VI. — Distribution o'^ Legislative Powers. 
 
 vinally 
 of the 
 
 (^luebec, 
 the first 
 \oreof in 
 
 at such 
 Jovornor- 
 
 Po'ivers of the Parliament. 
 
 91. It shall be lawful for the Queen, by and with the advice Legislative 
 and consent of the Senate and House of Commons, to make p* i°'^ent^ 
 laws for the peace, order, and good govei-nment of Canada, in Canada, 
 relation to all matters not coming within the classes of subjects 
 by this Act as.signed exclusively to the Legislatures of the Pro- 
 vinces ; and for greater cortaint}^ but not .so as to restrict the 
 generality of the foregoiag terms of this section, it is hereby 
 declared that (notwithstanding anything in this Act) the ex- 
 clusive legislative authority of the Parliament of Canada ex- 
 tends to all matters coming within the cla.s.ses of subjects next 
 hereinafter eimmerattd ; that is to say : — 
 
 L The Public Debt and Property. 
 
 2. The regulation of Trade and Commerce. 
 
 :}. The raising of money by any mode or system of Taxa- 
 tion. 
 
 4. The borrowing of money on the public credit. 
 
 5. Postal sei'vice. 
 
 6. The Census and Statistics. 
 
 7. Militia, Military and Naval Service and Defence. 
 
 8. The fixing of and providing for the salaries and allow- 
 
 ances of civil and other officers of the Government 
 of Canada. 
 
36 
 
 BRITISH NORTH AMERICA ACT, 18G7. 
 
 9. Beacons, Buoys, Lighthouses, and Sahle Island. 
 
 10. Navigation and Shipping. 
 
 11. Quarantine and the estabHslunent and maintenance of 
 
 Marine Hospitals. 
 
 12. Sea coast and inland Fisheries. 
 
 13. Ferries between a Province and any British or Foreign 
 
 country or between two Provinces. 
 
 14. Currency and Coinage. 
 
 15. Banking, incorporation of banks, and the issue of paper 
 
 money. 
 
 16. Savings' Banks. 
 
 17. Weights and Measui'es. 
 
 18. Bills of Exchange and Promissory Notes. 
 
 19. Interest. 
 
 20. Legal tendei*. 
 
 21. Bankruptc}' and Insolvency. 
 
 22. Patents of invention and discovery. 
 
 23. Copyrights. 
 
 2*. Indians, and lands reserved for the Indians. 
 
 25. Naturalization and Aliens. 
 
 26. Marriage and Divorce. 
 
 27. Till' Criminal Law, except the Constitution of Courts 
 
 of Criminal Jurisdiction, but including the Procedure 
 in Criminal Matters. 
 
 28. The Establishment, Maintenance, and Management of 
 
 Penitentiaries. 
 
 29. Such classes of subjects as are expi-essly excepted in the 
 
 enumeration of the classes of subjects by this Act 
 assigned exclusively to the Legislatures of the Pi'o- 
 vinces. 
 
 And any matter coming within any of the classes of subjects 
 enumerated in this section shall not be deemed to como within 
 the class of matters of a local or private nature comprised in 
 the enumeration of the classes of subjects by this Act assigned 
 exclusively to the Legislatures of the Provinces. 
 
 Exclusive Powers of Provincial Legislatures. 
 
 Subjects of 93. In each Province the Legislature may exclusively make 
 
 vfndal Lesis" ^^^^ '^^ relation to matters coming within the classes of sub- 
 lation. jects next hereinafter enumerated, that is to say, — 
 
of 
 
 i 
 
 BRITISH NOHTH AMERK'A ACT, 1867. 
 
 1. The Amendmeut from time to time, not withstand inj^ 
 
 anything in this Act, of the Constitution of the Pro- 
 vince, except as regards the office of Lieutenant 
 Governor. 
 
 2. Direct Taxation within the Province in ordei- to the 
 
 raising of a Revenue for Provincial purposes. 
 
 3. The borrowing of money on the sole credit of the Pro- 
 
 vince. 
 
 4. The establishment and tenure of Provincial offices and 
 
 the appointment and payment of Provincial officers. 
 
 5. The management and sale of the Public Lands belong 
 
 ing to the Province and of the timber and wood 
 thereon. 
 
 6. The establishment, maintenance, and management of 
 
 public and reformatory prisons in and for the Pro- 
 vince. 
 
 7. The establishment, maintenance, and management of 
 
 hospitals, asylums, charities, and eleemosynary 
 institutions in and for the Pi'ovince, other than marine 
 hospitals. 
 
 8. Municipal institutions in the Province. 
 
 9. Shop, saloon, tavern, auctioneer, and other licences 
 
 in order to the raising of a revenue for Provincial, 
 local, or municipal purposes. 
 
 10. Local works and undertakings other than such as are 
 
 of the following classes, — 
 
 (I. Lines of steam or other ships, railways, canals, 
 telegraphs, and other works and undertakings 
 connecting the Province with any other or 
 others of the Provinces, or extending beyond 
 the limits of the Province : 
 
 b. Lines of steam ships between the Province and 
 
 any Biifcish or foreign countiy : 
 
 c. Such works as, although wholly situate within 
 
 the Province, are before or after their execu- 
 tion declared by the Parliament of Canada to 
 he for the general advantage of Canada or for 
 the advantage of two or more of the Provinces. 
 
 11. The incorporation of companies with Provincial ob- 
 
 jects. 
 
 12. The solenniization of marriage in the Province. 
 
 13. Property and civil rights in the Province. 
 
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 BRITISH NC>KTH AMERICA ACT, 1867. 
 
 14. The administration of justico in the Province, includ- 
 
 ing the constitution, maintenance, and oi'ganization 
 of Provincial Courts, both of civil and of criminal 
 jurisdiction, and including pi-ocedure in civil matters 
 in those Courts. 
 
 15. The imposition of punishment by fine, penalty, or 
 
 imprisonment for enforcing any law of the Province 
 made in relation to any matter coming within any of 
 the classes of subjects enumerated in this section. 
 
 16. Generally all matters of a merely local or private 
 
 nature in the Province, 
 
 Legiulatioii 
 
 respecting 
 
 ediicatiim. 
 
 ii 
 
 Edtication. 
 
 93. In and for each Province the Legislature may exclu- 
 sively make laws in relation to education, subject and accord- 
 ing to the following provisi(ms : — 
 
 1. Nothing in any such law shall prejudicially aft'ect any 
 
 right or privilege with respect to denominational 
 schools which any class of persons have by law in the 
 Province at the Union. 
 
 2. All the powers, privileges, and duties at the union by 
 
 law conferred and imposed in Upper Canada on the 
 separate schools and school trustees of the Queen's 
 Roman Catholic subjects shall be and the same are 
 hereby extended to the dissentient schools of the 
 Queen's Protestant and Roman Catholic subjects in 
 Quebec. 
 
 'A. Where in any Province a system of separate or dissen- 
 tient schools exists by law ot the Union or is there- 
 after established by the Legislature of the Province, 
 . an appeal shall lie to the Governor General in Council 
 from any Act or decision of any Prc^vincial authority 
 affecting any right or privilege of the Protestant or 
 Roman Catholic minority of the Queen's subjects in 
 relation to education. 
 
 4. In case any such Provincial law as from time to tiuK^ 
 seems to the Governor General in Council requisite 
 for the due execution of the provisions of this sectioM 
 is not made, or in case any decision of the Governor 
 General in Council on any appeal under this section 
 is not duly executed by the proper Provincial autho- 
 rity in that behalf, then and in every such case, anii 
 as far only as the circumstances of each case require, 
 the Parliament of Canada may make remedial laws 
 for the due execution of the provisions of this section 
 and of any decision of the Governor General in 
 Council under this section. 
 
m 
 
 nuiTisii xonrn ameuka act, 1867. 
 
 39 
 
 Uv'iformiti/ of Lairs 'id Ontano, Nora Scotia and New 
 
 Brun»wicl\ 
 
 94. Notwith.staiiding anything in tlu.s Act, tlie Parliament 
 of C'anada may make provi.sion for tlie uniformity of all or 
 any of the laws relative to property' and civil rights in Ontario, 
 Nova Scotia and New Briuiswiek, and of the procedure of all 
 or any of the Courts in those three Provinces ; and from and 
 after the passing of any Act in that behalf the power of the 
 Parliament of Canada to make laws in relation to any matter 
 comprised i. ■ .y such Act shall, notwithstanding anything in 
 this Act, b u'i) ■.!!; tea; but any Act of the Parliament of 
 Canada making \. ,. xsion for such uniformity shall not have 
 effect in any Province uidess and until it is adopted and 
 enacted as law by the Legislature thereof. 
 
 Agriculture and Immigration. 
 
 Legislatiiin 
 for uniforiiiity 
 of laws in the 
 three Pro- 
 vinces as tci 
 property and 
 civil rights 
 and uni- 
 formity of 
 procedure in 
 Court.'*. 
 
 95. In each Province 
 relation to Agriculture iu 
 
 the Legislature may make laws in Concurrent 
 the Provin.; 
 
 po' 
 
 into the Province ; and it is hei'eby declared that the Parlia- respecting" 
 ment of Canada may from time to time make laws in relation Agriculture 
 to Agriculture in all or any of the Provinces, and to iimuigra- ^"n.""'"'^'^" 
 tion into all oi' any of the Provinces ; and any law of the 
 Legislature of a Province relative to Agriculture or to Inuni- 
 gration shall have effect in and for the Province as long and 
 as far only as it is not repugnant to an}'' Act of the Parliament 
 of Canada. 
 
 VIL— Judicature. 
 
 96. The Governor General shall appoint the Judges of the Apuoiutment 
 Superior, District, and County Courts in each Province, except "f Judges. 
 those of the Courts of Probate in Nova Scotia and New 
 Brunswick. 
 
 c 
 
 2 
 
 r 
 
 1 
 
 i 
 
 V 
 
 "p. 
 
 A. 
 
 97. Until the laws relative to property and civil rights in Selettion of 
 Ontario, Nova Scotia, and New Brunswick, and the procedure ontarb "etc. 
 of the Courts in tho.se Provinces, are made uniform, the Judges 
 
 of the Courts of those Provinces appointed by the Governor 
 General shall bo .selected from the respective Bars of those 
 Provinces. 
 
 98. The Judges of the Courts of Quebec shall be selected Selection of 
 from the Bar of that Province. (iuoKc." 
 
 99. 
 
 The Judges of the Superior Courts shall hold office ''jS"';'''',"^ 
 during good behaviour, but sliall be removable by the Gover- judges of 
 nur General on address of the Senate and House of Commons. Superior 
 
 Courts. 
 
 100. The .salaries, allowances and pensions of the Judges Salaries, etc., 
 of the Superior, District, and County Courts (except the Cou.'ts "* •'«<!»''»• 
 
40 
 
 HKITISH NORTH AMKRICA ACT, 1 8o7. 
 
 of Probate in Nova Scotia ami New Brunswick), and of tlic 
 Admiralty Courts in co.ses where the Jtidges thereof are for 
 the time neing paid by salary, shall be fixed and provided by 
 the Parliament of Canada. 
 
 General Court 
 of Appeal, 
 etc. 
 
 101. The Parliament of Canada may, notwithstanding 
 anything in this Act, from time to time, provide for the con- 
 stitution, maintenance, and organization of a general Court 
 of Appeal for Canada, and for the establishment of any addi- 
 tional Courts for the better administration of the Laws of 
 Canada. 
 
 mm 
 
 VIII. — Revenues; Debts; Assets; Taxation. 
 
 Creation of 102. All duties and reveinies over which the respfictive 
 
 Connolidrtv-d Ltjgislatures of Canada, Nova Scotia, and New Brunswick 
 Fund. l)efore and at the Union had and have power of appropriation, 
 
 except such portions theref)f as are by this Act res(!rved to the 
 respective Legislatures of the Provinces, or are rai.sed l)y them 
 ill accordance with the special powers conferred on them by 
 this Act, shall form one Consolidated Revenue B^unil, to be 
 appropriated for the public service of Canada in the manner 
 and subject to the charges in this Act provided. 
 
 Exiifnae;- of 103. The Consolidated Revenue Fund of Canada shall be 
 
 collection, etc. p(>niianently charged with the costs, charg(?s, and expenses 
 incident to the collection, management, and receipt thereof, 
 and the same shall form the first charge thereon, subject to be 
 reviewed and audited in such manner as shall lie onlered by 
 the Governor General in Council until the Parlifiment other- 
 wise provides. 
 
 Interest of 
 Provincial 
 public debtB. 
 
 Salary of 
 Governor- 
 General. 
 
 Approiiriati'i 
 
 104. The annual intt'rest of the public debts of the several 
 Provinces of Canacia, Nova Scotia and New Brunswick at the 
 Union .shall form the second charge on the Consolidated 
 Revenue Fuml of Canada. 
 
 106. Unless altered by the Parliament of Canada, the salaiy 
 of the Gov( rnor General shall be ten thousand pounds sterling 
 money of the United Kingdom of Great Britain and Ireland, 
 payable out of the Consolidated Revenue Fund of C'anada, and 
 the .same shall form the third charge thereon. 
 
 . . 10(J. Subject to the .several payments by this Act charged 
 
 t^'Xargei!'"* '*" "^'"^ Coii.so'lidated R.'v«>nue Fund of Canada, the .same shaU 
 
 be appropriated by the Parliiiment of Canada for the pulilic 
 
 appropri 
 service. 
 
 Transfer to 
 Canada of 
 Htncka, etc., 
 b«loaginfr to 
 two Provinces 
 
 107. All stocks, cash, lianker's balances, and .securities for 
 money belonging to each Province at the time of the Unitm, 
 except as in this Act mentioned, shall be the property of Canada, 
 and shall hv taken in reduction of the amount of the respective 
 debts of the Provinces at the Union. 
 
BRITISH NORTH AMERICA ACT, 18G7. 
 
 41 
 
 108. The public works and property of each Province, Transfer of 
 enumerated in the third schedule to this Act, shall be the Ichlduie.'" 
 property of Canada. 
 
 109. All lands, mines, minerals, and royalties belonging Lande. mine, 
 to the several Provinces of Canada, Nova Scotia and New etc^belongim? 
 Brunswick at the Union, and all sums then due or payable for to belong?' 
 such lands, mines, minerals, or royalties, shall belong to the them, 
 several Provinces of Ontario, Quebec, Nova Scotia and New 
 Brunswick in which the same are situate or arise, subject to 
 
 any trusts existing in respect thereof, and to any interest other 
 than that of the Province in the same. 
 
 110. All as.sets connected with such portions of the public Assets con- 
 debt of each Province as are assumed by that Province shall p^o'^lndal^ 
 belong to that Province. 
 
 debts. 
 
 111. Canada shall be liable for the 
 
 each Province existing at the Union. 
 
 debts and liabdities ot Canada to be 
 
 liable for 
 P/Dvincial 
 debts. 
 1 ll<i. Ontario and Quebec conjointly shall be liable to Canada Liability of 
 for the amount (if any) by which the deV)t of the Province of J^"'?'"" *"•* 
 Canada exceeds at the Union $62,500,000, and shall be charged Canada. " 
 with interest at the rate of five per centum per annum thereon. 
 
 113. The assets enumerated in the fourth Schedule to this Assets of 
 Act belontjinu: at the Union to the Province of Canada .shall he Ontario and 
 the property of Ontario and Quebec conjointly. 
 
 l^uebec. 
 
 114. Nova Scotia shall be liable to Canada for the o,mount ijiability r.f 
 (if any) by which its public debt exceeds at the Union Nova Scotia 
 $S,0()0,000, and .shall be chnrged with interest at the rate of '" "*°*"^* 
 five per centum per ainium thereon. 
 
 115. New Brunswick .shall b(> liable to Canada for the Liability 
 amount (if anv) bv which its public debt exceeds at the Union of New 
 $7,000,000, and shall be charged with interest at the rate of fo'canada'' 
 five per centum per ainium thereon. 
 
 116. In case the public deltt of Nova Scotia and New Payment nf 
 Brunswick do not at the Union amount to $8,000,000 and j^t^^estto 
 ?7,000,000 respectively, they shall re.spectively receive by half- and^New 
 yearly payments in advance from the Government of Cana<la Brunswick 
 interest at five per centum per annum on the difference between debts are less 
 the actual amcmnts of their respective debts and such stipu- than the 
 lated an.ounts. :*r„'„\',«f 
 
 117. The several Prt)vinces shall retain all their respective Provincial 
 public property not otherwise disposed of in this Act, subject public pm- 
 to the right of Canada to a.ssume any latids or public property 
 re([uired for fortifications or for the defence of the country. 
 
 
 1 
 
 i 
 
 •7 
 
-.^ I 
 
 42 
 
 HRITISH XOKTH AMERICA ACT, 1867. 
 
 Grants to 
 Provincuh. 
 
 id 
 
 I 
 
 I 
 I 
 
 118. Tlie following sums shall be i)aid yearly by Canada 
 to the several Province.s for the support of their Governments 
 and Legislatures : — 
 
 Dolliir.s. 
 
 Ontario ... Eighty thousand. 
 
 Quebec - . - - Seventy thousand. 
 
 Nova Scotia - - - Sixtj' thousand. 
 
 New Brunswick - - - Fifty thousand. 
 
 Further grant 
 to New 
 BrunBwick 
 for ten years. 
 
 Two hundred and sixty thousand. 
 
 and an annual grant in aid of each Province .shall be made, 
 e(|ual to eighty cents per head of the population as ascertained 
 by theCen.susof 1861, andintheca.se of Nova Scotia and New 
 Brunswick, by each .subsequent decennial census until the popu- 
 lation of each of those two Pro\inces amounts to four hundred 
 thousand souls, at which rate such grant shall thereafter remain. 
 Such grants shall be in full settlement of all future demands 
 on Canada, and shall be paid half-yearly in advance to each 
 Province ; but the Government of Canada shall deduct from 
 such grants, as against any Pnnince, all sums chargeable as 
 interest on the Public Debt of that Province in excess of the 
 several amounts stipulated in this Act. 
 
 119. New Brunswick shall receive by half-yearly payments 
 in advance; from Canada, for the period of ten years from the 
 Union an additional aUowance of S63,000 per annum ; but as 
 long as the Public Debt of that Province remains under 
 S7 ,000,000, a deduction equal to the interest at five per centum 
 per annum on such deficiencv shall be made from that allow- 
 ance of $03,000. 
 
 Form of 
 (tayniunts. 
 
 ManufiKv 
 tureii, etc., nf 
 one Province 
 to be admitted 
 free into the 
 jtliers. 
 
 Continuance 
 of CuHtoniH 
 and Kxcise 
 Laws. 
 
 Kxpiirtation 
 ami importa- 
 tation as 
 lietween two 
 Provincea. 
 
 180. All payments to be madi; under this Aci., or in dis- 
 charge of liabilities created under any Act of the Provinces of 
 Canada, Nova Scotia and New Bi-unswick respectively, and 
 a.ssumed by Canada, shall, until the Parliament of Canada 
 otherwise directs, be made in such form and manner as may 
 from time to time be ordered by the Governor Genei-al in 
 Council. 
 
 181. All articles of the growth, produce, or manufacture of 
 any one of the Provinces .shall, from and after the Union, be 
 admitted free into each of Hic other Provinces. 
 
 188. The Customs and Exci.se Laws of each Province shall, 
 subject to the jirovisions of this Act, continue in force until 
 altered by the Parliament of Canada. 
 
 183. Whevo Customs duties are, at the Union, leviable on 
 any goods, wares, or merc'iandises in any two Provinces, those 
 goods, wares and merchandises may, from aiu» after the Union, 
 be imported from one of those Provinces into the other of 
 
BRITISH \ORTH AMERICA ACT, 1867. 
 
 43 
 
 thehi on proof of payment of the Customs duty leviable thereon 
 in the Province of exportation, and on payment of such further 
 amount (if any) of Customs duty as is leviable thereon in the 
 Province of importation. 
 
 134. Nothini^ in this Act shall attect the right of New Lumber dues 
 Brunswick to levy the lumber dues provided in chapter fifteen, gp^JJ^gt 
 of title three, of the Revised Statutes of New Brunswick, or 'n 
 any Act amending that Act before or after the Union, and 
 not increasing the amount of such dues ; but tlie lumber of 
 any of the Provinces other than New Brunswick shall not be 
 subject to such dues. 
 
 125. No lands or property belonging to Canada or any Exemption of 
 
 Pi'ovince shall be liable to taxation. public landi, 
 
 etc., from 
 o 1 • p 1 1 • • taxation. 
 
 1"6. Such portions of the duties and revenues over which provinoiM 
 the respective Legislatures of Canada, Nova Scotia and New Consolidated 
 Brunswick had befoi'e the Union power of appropriation as p^^^""^ 
 are by this Act reserved to the respective Governments or 
 Legislatures of the Provinces, and all duties and revenues 
 raised by them in accordance with the special powers conferred 
 upon them by this Act, shall in each Province form one Con- 
 solidated Revenue Fund to be appropriated for the public 
 service of the Province. 
 
 IX. — Miscellaneous Provisions. 
 
 General. 
 
 127. If any person being at the pa.ssing of this Acta^^,, 
 Member of the Legislative Council of Canada, Nova Scotia, or Leffialative 
 Now Brunswick, to whom a place in the Senate is offered, of°l"ovin"e«. 
 docs not within thirty days thereafter, by writing under his becoming 
 hand, addressed to the Governor General of the Province of S*"***"- 
 Canada, or to the Lieutenant Governor of Nova Scotia or New 
 Brunswick (as the case may be), accept the same, he shall be 
 deemed to have declined the same ; and any person who, 
 
 being at the passing of this Act a member of the Legislative 
 Council of Nova Scotia or New Brunswick, accepts a place in 
 the Senate, shall thereby vacate liis seat in such Legislative 
 Council. 
 
 128. Every member of the Senate or House of Commons of Oath of 
 Canada shall before taking his seat therein, take and subscribe aJlefninoBi 
 before the Governor General or some person authorized by him, 
 
 and every member of a Legislative Council or Legislative 
 Assembly of any Province shall before taking his seat therein, 
 take and subscril)e before the Lieutenant Governor of the Pro- 
 vince or some person authorized by him, the oath of allegiance 
 contained in the fifth Schedule to this Act ; and every member 
 of the Senate of Canada ard every member of the Legislative 
 
 c 
 
 i 
 
 I. 
 
44 
 
 BKITISH XORTH AMERICA ACT, 18G7. 
 
 Council of Quebec shall also, before taking his seat therein, 
 take and subscribe before the Governor General or st>me person 
 authorized by him, the declaration of qualification contained 
 in the same Schedule. 
 
 1 i 
 
 iii 
 
 Continuance 
 <if existin^r 
 lawa, conrts, 
 ofiBcerK, etc. 
 
 Transfer of 
 officers to 
 Canada. 
 
 1S9. Except as otherwise provided by this Act, all laws in 
 force in Canada, Nova Scotia or New Brunswick at the Union, 
 and all Courts of civil and criminal jurisdiction, and all legal 
 commissions, powers and authorities, pnd all officers, judicial, 
 administrative and ministex'ial, existing the -ein at the Union, 
 shall continue in Ontario, Quebec, Nova Scot.a and New Bruns- 
 wick respectively, as if the Union had not been made ; subject 
 nevertlieless (except with respect to such as pre enacted by or 
 exist under Acts of the Parliament of Great Britain or of 
 the Parliament of tho United Kingdom of Great Britain and 
 Ireland,) to be repealed, abolished or altered by the Parliament 
 of Canada, or by the Legislature of the respective Province, 
 according to tlie authority of the Parliament or of that 
 Legislature under this Act. 
 
 130. Until the Parliament of Canada otherwise provides, all 
 officers of the several Pi-ovinces having duties to discharge in 
 relation to matters other than those coming within the classes 
 of subjects by this Act assigned exclusively to the Legislatures 
 of the Provinces shall be officers of Canada, and shall continue 
 to discharge the duties of their respective offices under the same 
 liabilities, responsibilities and penalties as if the Union had 
 not been made. 
 
 Appointment 131. Until the Parliament of Cs-nada otherwise provides, 
 of new officers, ^j^g Governor General in Council may from time to time appoint 
 such officers as the Governor General in Council deems neces- 
 saiy or proper for the eft'ectual execution of this Act. 
 
 Power for per- 138. The Parliament and Government of Canada shall have 
 treaty^obuia- ^^^ powers necessary or proper for performing the obligations 
 tions by of Canada or of any Province thereof, as part of the British 
 
 oflBrftts^'*"^' Empire, towards foinign countries, arising under treaties 
 Empire. between the Empire and such foreign countries. 
 
 Use of English 
 and French 
 languageti. 
 
 133. Either the English or the French language may be used 
 by any person in the debates of the Houses of the Parliament 
 of Canada and of the House.^ of the Legislature of Quebec ; and 
 both those languages shall be used in the respective records 
 and journals of those Hou.ses ; and either of those languages 
 may be used by any person or in any pleading or process in or 
 issuing from any Court of Canada established under this Act, 
 and in or from all or any of the Courts of Quebec. 
 
 The Acts of the Parliament of Canada and of the Legislature 
 of Quebec shall be printed and published in both those languages. 
 
BRITISH NORTH AMERICA ACT, 18G7. 
 
 45 
 
 Ontario and Quebec. 
 
 1 34. Until the Legislature of Ontario or of Quebec other- Appointment 
 wise provides, the Lieutenant Goveraoi's of Ontario and Quebec officers for 
 may each appoint under the Great Seal of the Province the Ontario and 
 following officers, to hold office during pleasure, that is to say : — ^"* ^^' 
 the Attorney General, the Secretary and Registrar of the Pro- 
 vince, the Treasurer of the Province, the Commissioner of Crown 
 
 Lands, and the Commissioner of Agriculture and Public Work.s, 
 and in the case of Quebec the Solicitor General ; and r.iay, by 
 order of the Lieutenant Governor in Council, from time to time 
 prescribe the duties of those officers and of the several depart- 
 ments over which they shall preside or to which they shall 
 belong, and of the officers and clerks the ;eof ; and may also 
 appoint other and additional officers to hold office during 
 pleasure, and may iroio time to time prescribe the duties of 
 those officers, and of the several departments over which they 
 shall preside or to which they shall belong, and of the officers 
 and clerks thereof. 
 
 135. Until the Legislature of Ontario or Quebec otherwise Powers, 
 provides, all rights, powers, duties, functions, I'esponsibilities o"e*^utfv'e 
 or authorities at the passing of this Act vested in or imposed offlserg. 
 
 on the Attorney General, Solicitor General, Secretary and 
 Registrar of the Province of Canada, Minister of Finance, 
 Commissioner of Crown Lands, Commissioner of Public Work.s, 
 and Minister of Agriculture and Receiver General, by any law, 
 statute or ordinance of Upper Canada, Lower Canada, or 
 Canada, and no*" repugnant to this Act, shall be vested in or 
 imposed on any officer to be appointed Viy the Lieutenant Gov- 
 ernor for the discharge of the some or any of them ; and the 
 Commissioner of Agriculture and Public Works shall perform 
 the duties and functions of the office of Minister of Agriculture 
 at the passing of this Act iniposed by the law of the Province 
 of Canada, as well as those of the Commissioner of Public 
 Works. 
 
 
 r: 
 
 \: 
 
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 03 
 SI 
 
 \ 
 
 136. Until altered by the Lieutenant-Governor in Council, Great Seal, 
 the Great Seals of Ontai'io and Quebec respectivelj' shall be 
 
 the same, or of the same design, as those used in the Provinces 
 of Upper Canada and Lower Canada respectively before their 
 Union as the Province of Canada. 
 
 137. The words "and from thence tc +.he end of the then Construction 
 next ensuing Session of the Legislature," o. vords to the same Acts.'"''*"^" '^ 
 effect, used in any temporary Act of the Province of Canada 
 
 not expired before the Union, shall be construed to extend and 
 apply to the next Session of the Parliament of Canada, if the 
 subject matter of the Act is within the powers of the same, as 
 defined by this Act, or to the next Sessions of the L(^gislatures 
 of Ontario and Quebec respectively, if the subject matter of the 
 Act is wifjiin the powers of the same as defined by this Act. 
 
46 HBITISU NORTH AMERICA ACT, 18G7. 
 
 As to errors in 138. From iiiul after the Union, the use of the words 
 n«me8. "Upper Canada" instead of "Ontario," or "Lower Cana<hi" 
 
 instead of " Quebec," in any deed, writ, process, pleading, docu- 
 ment, matter or thing, shall not invalidate the same. 
 
 Ab to issue of 1 J59. Any Pnjclamation under the Great Seal of the Pro- 
 Proclamations vince of Canada issued before the Union io take effect at a 
 to commeiice ' tiuu' which is subsequent to the Union, whether relating to 
 after union, that Province, or to Upper Canada, or to Lower Canada, and 
 the several matters and things therein proclaimed shall be and 
 continue of like force and eftect as if the Union had not been 
 juade. 
 
 authority of 
 Acts before 
 Union. 
 
 As to issue of 140. Any Proclamation which is authorized by any Act of 
 Proclamations the Legislature of the Province of Canada to be issued under 
 under """ the Great Seal of the Province of Canada, whether relating to 
 that Province, oi' to Upper Canada, or to Lower Canada, and 
 which is not issued before the Union, may be issued by the 
 Lieutenant Governor of Ontario or of Quebec, as its subject 
 matter reijuires, under the Great Seal thereof ; and from and 
 after the issue of such Proclamation the same and the several 
 matters and things therein proclaimed shall be and continue of 
 the like force and effect in Ontario or Quebec as if the Union 
 had not been made. 
 
 Penitentiary. 
 
 Arbitration 
 respecting 
 debts, etc. 
 
 Division of 
 records. 
 
 CoDstituMon 
 of townships 
 in Quebec. 
 
 141. The Penitentiary of the Province of Canada shall, 
 until the Parliament of Canada otherwise provides, be and 
 ct)ntinue the Penitentiary of Ontario and of Quebec. 
 
 14Ji. The division and adjustment of the debts, credits, lia- 
 bilities, properties and as.sets of Upper Canada and Lower 
 Canada shall be referred to the arbitrament of three arbitra- 
 tors, one chosen by the Government of Ontario, one by the 
 Government of Quebec, and one by the Government of Canada ; 
 and the selection of the arbitrators shall not be made until the 
 Parliament of Canada and the Legislatures of Ontario and 
 Quebec have met ; and the arbitrator chosen by the Govern- 
 ment of Canada shall not be a resident either in Ontario or in 
 Quebec. 
 
 143. The Governor General in Council may from time to 
 time order that such and so many of the records, books, and 
 documents of the Province of Canada as he thinks fit shall be 
 appi'opriated and delivered either to Ontario or to Quebec, and 
 the same shall thenceforth be the property of that Province ; 
 and any copy thereof or extract therefrom, duly certified by 
 the officer having charge of the original thereof shall be ad- 
 mitted as evidence. 
 
 144. The Lieutenant Governor of Quebec may from time to 
 time, by Proclamation under the Great Seal of the Province, to 
 take efiect from a day to be appointed therein, constitute town- 
 ships in those parts of the Province of Quebec in which town- 
 
BRITISH NORTH AMERICA ACT, 18(57. 
 
 47 
 
 ships are not then ah-cady constituted, and fix the metes and 
 bounds thereof. 
 
 X. — ^Intercoloniai- Railway. 
 
 145. Innsnuicli as the Provinces of Canada, Nova Scotia, i3«ty "f Q<>v- 
 and New Brunswick have joined in a declaration that the con- par'Jiam.nt of 
 struction of the Intercolonial liailway is essential to the con- Canada to 
 solidation of the Union of British North America, and to the "e^efn de""^ 
 assent thereto of Nova Scotia and New Brunswick, and have scribed, 
 consequently agreed that provision should be made for its 
 immediate construction by the Government of Canada : There- 
 fore, in order to give effect to that agreement, it shall be the 
 duty of the Government and Parliament of Canada to provide 
 for the commencement within six months after the Union, of 
 a railway connecting the River St. Lawrence with the City of 
 Halifax in Nova Scotia, and for the construction thereof with- 
 out intermission, and the completion thereof with all practicable 
 speed. 
 
 XI. — Admission of othkr Colonies. 
 
 Power to ad- 
 mit New- 
 foundland, 
 Prince Ed- 
 ward Island, 
 British 
 Columbia, 
 Rupert'H Land 
 and North- 
 western Ter- 
 ritory into the 
 Union by 
 Order in 
 Council. 
 
 146. It shall be lawful for the Queen, by and with the ad- 
 vice of Her Majesty's Most Honourable Privy Council, on 
 Addresses from the Houses of Parliament of Canada, and from 
 the Houses of the respective Legislatures of the Colonies or 
 Provinces of Newfoundland, Prince Edward Island, and British 
 Columbia, to admit tho.se Colonies or Provinces, or any of them, 
 into the Union, and on Address from the Houses of the Parlia- 
 ment of Canada to admit Rupert's Land and the North- 
 western Territory, or either of them, into the Union, >n such 
 terms and conditions in each case as are in the Addresses 
 expressed and as the Queen thinks tit to approve, subject to 
 the provisions of this Act ; and the provisions of any Order in 
 Council in that behalf shall have effect as if they had been 
 enacted by the Parliament of the United Kingdom of Great 
 Britain and Ireland. 
 
 147. In case of the admission of Newfoundland .and Prince As to repr<- 
 Edward Island, or either of them, each shall be entitled to a N°J,''A''"'i'^ 
 representation in the Senate of Canada of four members, and land and 
 (notwithstanding anything in this Act) in case of the admi.ssion Prinw Ed- 
 of Newfoinidland the normal number of Senators shall be j,i Senate. ' 
 seventy -six and their maximum number shall be eighty-two ; 
 
 but Prince Edwar<l island when admitted shall be deemed to 
 be comprised in the third of the three divisions into which 
 Canada is, in relation to the constitution of the Senate, divided 
 by this Act, and accordingly, after the admission of Prince 
 Edward Island, whether Newfoundland is admitted or not, the 
 representation of Nova Scotia and New Brunswick in the 
 Senate .shall, as vacancies occur, be reduced from twelve to ten 
 members respectively, and the representation of each of those 
 Provinces shall not be increased at any time beyond ten, except 
 under the provisions of this Act for the appointment of three 
 or six additional Senators under the direction of the Queen. 
 
 
 
 
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48 
 
 BRITISH NORTH AMERICA ACT, 1867. 
 
 SCHEDULE. 
 
 The FIRST SCHEDULE. 
 
 Electm-al JJistrictn of Ontario, 
 
 [77ii.< Scheihde is omitted as the division of Ontario into Mecturcd Districts 
 has been altered by subsequent Dominion and Provincial leyiidation.] 
 
 The SECOND SCHEDULE. 
 
 Electoral Districts of Quebec specially fixed. 
 [SeeSectimiSO.] 
 Counties of — 
 
 Poiitiac. 
 Ottawfi. 
 Ai'genteuil. 
 Huntingdim. 
 
 Missisqudi. 
 
 Bi'oiue. 
 
 Shefford. 
 
 Staiistead. 
 
 Town of Sherbrooke. 
 
 Coniptoii. 
 
 Wolfe and Riuhniond. 
 
 Megantic. 
 
 The THIRD SCHEDULE. 
 Provincial Pnblie Works and Property to be the Properti/ of Canada. 
 
 1. Canals, with Lands and Water Power connected therewith, 
 
 2. Public Harbours. 
 
 3. Lightliouses and Piers, and Sable Island. 
 
 4. Steamboats, Dredges, and public Vessels. 
 6. Rivers and Liiko Inijirovenients. 
 
 6. Railways and Railway Stocks, Mortgages, and other Debts due by 
 
 Railway Couiiianies. 
 
 7. Military Roads. 
 
 8. Custom Houses, Post Offices, and all other Public Buildings, 
 
 excei)t such as the Government of Canada a|)propriate for tin- 
 use of the Provincial Legislatures and Governments. 
 
 9. Property transferred by the Imperial Government, and known as 
 
 Ordnance Property. 
 
 10. Armouries, Drill Sheds, Military Clothing, and Munitions of War, 
 and Lands set apart for general i)ublic i)urposes. 
 
HUITISH NORTH AMEHK'A ACT, 1867 
 
 49 
 
 The FOURTH SCHEDULE. 
 
 Aiuets to be the Priqtertij of Ontario aiui (^tebec conjointly. 
 
 Upper Caniida Biiililiiig Fuiitl. 
 Liinntic Asj'lunis. 
 Normal School. 
 Court Houaes, 
 
 in . 
 
 Aylmor, > Lower Ciinnidu. 
 
 Montreal, 
 Kaniouraaka. 
 
 Law Society, Upper Canada. 
 Montreal Tiu'iipike Trust. 
 University Permaneut Fund. 
 Royal Insftution. 
 
 Consolidated Municipal Loan Fund, Upper Canada. 
 Consolidated Municipal Loan Fund, Lower Canada. 
 Agricultuml Society, Ujiper Canada. 
 Lower Canada Legislative Grant. 
 Quebec Fire Loan. 
 Taniiscouata Advance Account. 
 Q lobec Turnpike Trust. 
 Education — East. 
 
 Building and Jury Fund, Lower Canada. 
 Municipalities Fund. 
 Lower Ciinada Superior Education Income Fund. 
 
 O 
 
 c 
 
 % 
 
 The FIFTH SCHEDULE. 
 
 Oath of Allegiance. 
 
 T, A.B. do swear. That I will be faithful and bear true Allegiance to 
 Her Majesty Queen Victoria. 
 
 Noit. — Tht name of the Kiiuj or Queen of the United Kingdmn of Cheat 
 Britain (tuti Irelaml for the time beimi l.i to be xubstitnted from time to time, 
 with proper tenns of reference thereto. 
 
 r 
 
 1 
 
 I 
 i 
 
 Declaration ok Qualification. 
 
 I, A.B. do declare and testify. That I am by law duly ({ualificd to be 
 appointed a Member of the Senate of Canada [<«■ as the case may be], and 
 that 1 am legally or equitably seised as of freehold ioc my own use and 
 benefit ot lands or tenements held in free and common socage [or seised 
 or possessed for my own use and benefit of lands or tenements held in 
 f ranc-iillcu or in roture {as the cast may be),] in the Province of Nova Scotia 
 [or as the rase may he] of the value of four thousand dollars over and above 
 all rents, dues, debts, mortgages, charges, and incumbrances due or payable 
 out of or charged on or affecting the same, and that I have not collusively 
 or colourably obtained a title to or become possessed of the said lands and 
 tenements or any part thereof for the purpose of enabling me to become 
 K Member of the Senate of Canada [or as the case may be], and that my 
 real and personal property are together worth ft>ur thousand dollars 
 over p,nc-. above my debts and liabilities. 
 D 
 
50 
 
 CONSTITUTIONAL LAW. 
 
 NOTES. 
 
 it was mil 
 I'lirliiunuiil. 
 
 B. N. A. Act. 'riic .\(l ciiNitiiig tlie ('aimili.ui Federation is an Act passed by 
 the lni])ciiiil Piiiliaiiicjit. It can l>i; anieiidcil only l>y tliat Parliament. It 
 may I'ven lie ici)ealfd hy that I'ailiatncnt. .Mtlioiigli by the .Vet " oxelusive " 
 powers of legislation aie granted lo Canadian legislative bodies, 
 intended to limit the supreme legislative authority of the Ini|ierial 
 
 Xmiles V. Helford (1S77), I Cart. .">7() ; 1 A. K. 4,S(). 
 
 Re College of Physicians and Surgeons (1S79), 44 U. C. H. oM. 
 
 Ex parte \Vorm.s'(187«), ±.> L. C. Jur. 10!) ; 2 Cart. 315. 
 
 What Acta of Imperial Paxliament In force. Kxce])t that part of the Statute 
 Uiw of Kiiglaud introduced into Canada in I7il- and those .\ets such as the 
 Trustee Relief .\et and other .\cts conferring jurisdiction on the t'ourt of 
 Chancery (see Con. Stat. U. C. c. 12, s. :i() ( 'li) ; Jmlieature Act, s. '28, see 
 infra Practice) which have incidentally be<(ime part of the Slatut(! Law, no 
 i/ [m|)erial .Act has the foice of law in Ontario without re-enact mer.t, unless it is 
 made applicable to (.'anada by exi)ress words or by neeessaiy intendment. See 
 •28 and 2il V. c. H.S, s. 1 (Imj)' Act). 
 
 Merchant's Hank of Halifax v. (iillespie (188.-)), II) S. C. H. 312. 
 
 Allen V. Hanson (18!)0), 18 S. C. K. ))(i7. 
 
 Merehanfs Bank v. Monteith (1884), 10 P. K. 334. 
 
 Where Canadian Acts conflict with Imperial Acts. .Any colonial law which 
 is in any respect rciiugnant to an Im]ierial .Act exteiuling to the colony to 
 which such law may relate, or lejingnant to any order or regulation made 
 \ni>Ier the authority of such -Act. or having in the colony the force and efl'eet 
 of such .Ac*, shall be read subject to such .Act, order or regulation, and shall 
 / to tl.e extent of such re])Ugnancy, b\it not otherwi.se, be absolutely void and 
 inoperative, 2H & 20 V. c. ()3, s. 2 (Imp. .Act). 'I'he Canadian (;o))yright .Act 
 (K. S. C. c. tV2) was technically re])ugnant to an Oider-in-Council made under 
 the Knglish Co])yright .Act which had been hehl in Routledge \. Low (1S()8), 
 L. R. 3, H. L. KM), to be in foice in (.'ana<la, and was therefore confirmed liy 
 an Im])erial -Act 3S fi ,30 V. c. .IS. The Dominion Parliament may confer 
 jurisdiction on the Imperial Viee-.Adunraltv (-'ourts. The Farewell 7 (J. L. R. 
 .380; 2 Cart 378; Atty.-Cen. v. Flint (1884), 10 S. C. R. 707 ; 4 Cart. 288. 
 .An Act authorizing proceedings against absentees on contracts made or to 
 be performed in the colony is valid and is not repugnant to any lm]>erial Act, 
 Ashbury v. Kllis (1803), A. C. 330. 
 
 Extra-territorial Enactments. "The Legislature has no jxiwer ovei' any 
 ])ersons except its own sulijects that is jjcrsons natural born subjects or resi- 
 dents or whilst they are within the limits of the kingdom. Tlu? Legislature 
 can impose no duties except on them, .md when legislating for the beiu-llt of 
 persons nnist pi'ima facie be considered to mean the beuetit of those who owe 
 obedienie to om' laws, and who.se interests the Legislature is under .> correla- 
 tive obligation lo i)rot(ut."' Per Parke H., Jett'erv ( v. lioosey (1X">4), 4. 
 H. L. C. '\t p. 020, Shields v. Peak (1883), 8 S. C. R. h70. 
 
 A Colonial Legislature lias no jurisdi>tion to punish a clime committed be- 
 yond its jurisdiction; .Macleod v. .Attornev-Ceneral New South Wales (1801), 
 A. C. 4.i.'). In R. V. Ph)wman (1804), 2'."> (). R. (i.Ki, it was hehl that the 
 Dominion Parliament,, being a s\d)ordin.'',e legislature, had no power to enact 
 that it should be a crimi- for a British ahji'ct to go through a form of marriage 
 abroad, aiul (M>nsei|uently, sec. 27.") of the (.'riminal ('ode relating to bigamy 
 was »//r.'i rlriK. 'I his decision conflicted with R. v. Brierly (1887), 14 (). R. 
 52i). The ^'.uprenie I'ourt lias now liecided that the .sections of the code relat- 
 ing to bigamy are iiilni rirci. Re Criminal Code (1807), 27 S. (,'. R. 401. The 
 grounds for holding the sections to be valid art; (I ) they are not repugnant to 
 any Im))erial Act ; (2) the sections relate (aiiy to British subjects lesidcnt in 
 Canada who leave Canada with liiliiil lo commit the oH'e?ice ; (3) tiiat a 
 materi.d jiart of the oll'ence is (^ounnitted in Canada ; (4) that the Dominion 
 Parliament is omnipotent so long as ItR legislotion is not repugiumt to that of 
 the Empire. 
 
 
CONSTITUTIONAL LAW. 
 
 51 
 
 Not delegates of Imperial Farllaicent. The Dominion Piuliaiiient und the 
 F'roviiiciii' Legislutuies are nut delejiiites of the Impeiial Parliament. Witliin 
 the limits of their respective jurisdictions thev are as absolute as the Imperial 
 Parliament ; Hodge v. Reg. (1883), !l Ap)). (,"as. 117; 3 tJart. U4 : K. v. Burah 
 (1878), 3 A))p. Cas. 88!) ; 3 Cart. 4(»i». I'owell v. Apollo Candle Co. (1885), 10 
 App. Cas. -iH-i ; 3 Cart. 43-2. The Dominion Parliament may interfere with 
 the puhlie rights in navigable waters. Vano(mver v. (Jana<lian Pacific R'y. 
 Co. (1894), "23 .S. v.. H. 1. So far as abstract competence is concerned, pro- 
 perty may l)c confiscated without compensation. He McDowell & Palmerston 
 (18112), 2'2(). K. .")()3. The powers of the legislatincs may be delegated to subordi- 
 nate bodies, e.g., license commiKsioners. Hodge v. Keg. (1883), 9 Ajip. Cas. 117. 
 
 Legislative power of Dominion Parliament. The enactments of the Pailia- 
 ment of ('anada in so far as they aic within its conipetcncy, overriile jaovin- 
 cial legiilat'on. I'arliament has no authority, liowever, to directly repeal any 
 provincia. statute. Tlie virtual ri,)eal of the provincial statute can only be 
 "effected l)y repugnancy between its i)rovisions and the enactments of the 
 Dominion. Atty,-<Jen. of Ontaiio \. Attv. -(Jen. of Canada (189t)), A. C. 
 348, 3ti(i. 
 
 Exceptions from Provincial exclusive Jurisdiction.— Kxelusive legislative 
 .lUthority is by section 91 conferred upon Parliament with regard to all enumer- 
 ated .sul>jects " notwithstanding anything contained in tliis Act," and it is 
 declared that nothing coming within the class of subjects there enumerated 
 shall be deemed to come within the enumerated clas.ses of subjects assigned 
 exidusively to the Provincial Legislatures. Tliis exception was not meant to 
 derogate from the legislative authority given to provincial legislatures by tlie 
 1() subsections of s. 92, save to tlie extent of enaoling the Pailiament of Canada 
 U) deal with matters local or private in those eases where ''uch legislation is 
 necessarily incidental to the exercise of the powers confernrd upon it by the 
 enumerated heads of ,•^. 91. Atty.-(Jen. for Ont. v. Atty.-Clen. for Dominion 
 (1891)) A. C. 3(iO. There are, therefore, two areas within which the Dimiinion 
 Parliament ma\'*legislate, (a) a primary area, viz. : all matters not assigned 
 exclusively to tlie Provincial Legislatures, including tho.se enumerated in s. 91, 
 and this area the Provinces nuiy not invade, (b) a secondary area, viz. ; pro- 
 visions which, though they toiich and trench upon Provincial law and Pro- 
 vincial jurisdiction, are ancillary to the legislation within the juitnary area. 
 These provisions are as effectual as if lhi\y behniged to tlie primary area, and 
 exclude the right of the Provinces to legislate so as io derogate from or destroy 
 the Dominion enactment, jiei' Lord Watson in argument Attv.-Cen. for Ont. 
 v. Atty.-Cen. for Canada (1894) A. C. See 30 C. L. J. 191. 
 
 The concluding clau.se of s. 91 iiad another object. Some of the cla.sses of 
 subjects a.ssigiie(r to the I'roviiu'ial Legislatures unavoidably ran into an<l were 
 einln'aced in s. 91, and the clau.se was enacted in an endeavor to provide for 
 ca.ses of apparent conflict, ("itizens' Ins. Co. v. Parsons (1881) 7 Ajip. ('as. 108. 
 Where this apjiarent lontlict exists the Legislature could not have intended 
 that the powers I'xclusively assigned to the Provincial Legishitnre should bo 
 absorbed by those given to the Dominion Parliament. Kor instance, " solemn- 
 ization of marriage,'' though included literally in " marriagt! and divorce," is 
 within the exclusive legislative authority of tlie provinces. And " direct tax- 
 atiim for provincial purposes'' cannot be overridden by tlie jiowers of the 
 Dominion to raise mo'iey iiy any mode of taxation. To prevent coiiHiet. the 
 two sectio IS must be read together and the language of one interjireted and, 
 where necessary, moditied by that of tlie other. lb. pp. 108, 109. 
 
 Peace, order and good government. Tlie Parliament of (,'anada has general 
 authority to legislate U)>oii all matters relating to the pea<:e, order and good 
 government of (Janada not falling within the classes of subje(,ls allotteil to the 
 Provincial Legislatures. To those matters the exception from s. 92, which is 
 enacted by the concluding clause of s. 91, has no application, ami in legislating 
 with regard to them the Dominion I'arliament ha.v no jiuthority to eneroacli 
 upon any class of subjects which is excluiiivelv assigned to Provincial Legisla- 
 tures by s. 92 .Vtty.-tien. for (hit. v. Atty.-Cen. for Dimiinion (18!Mi) A. C. 
 348, at ]). 3(!0. The Provineiul Legislatures, on the other haml, iiavo general 
 power, in aildition to their lo jiarticularly enumerated powers, to legislate with 
 regard to all matters of hii^al or private natu.e within the I'rovinee. 
 
 Legislation uiuler this clause will be valid, and in oases of repugnam^y to 
 Provincial legislation will override the provincial ; — 
 
 ( I ) If tlio Doniiiiioii Act falls within the enumerated powers of thiit Parlia- 
 ment, 
 
 '2 
 
 -< t4"' 
 
 5 
 
 I 
 
52 
 
 CONSTITUTION A I- LAW. 
 
 (2) If it JH not witliiii tlio einimeratfd jk)wuis, but does not fall w itliiii any 
 of the Hrst fifteen enumerated powers of IVovineial Legislatures, and (a) it 
 affects the Ixxly politico of the Dominion as a whole, or (h) it has eeased to he 
 merely local or provincial and has become unquestionaljl^' a niatte*' of national 
 concern and importance ; S. C. , p, 301. 
 
 Invasion of ProvincialJuriBiliction. In the foUowing cases enactments of the 
 Dominion Parliament trencliing upon Provincial jinisdiction have been huKl 
 to be valiil and intra rirei. 
 
 INTRA VIRES ENACTMENTS OF DOMINION PARLIAMENT. 
 
 Elections. 
 
 (1879) 
 
 
 (1884) 
 
 
 (1891) 
 
 Insolvency. 
 
 (1874) 
 
 
 ■ (1880) 
 
 
 (187B) 
 
 
 (188-2) 
 
 
 (1890) 
 
 Banks and 
 banking. 
 
 (1880) 
 
 
 (1891) 
 
 
 (1894) 
 
 Incoiporatioii 
 of companies. 
 
 Criminal 
 procedure. 
 
 (1884) 
 
 (187«) 
 
 (1882) 
 
 (ienorai 
 
 (18HM) 
 
 powers. 
 
 
 Peace, order 
 
 (18S2) 
 
 and good 
 
 
 government. 
 
 
 Criminal law 
 
 (1892) 
 
 If'll 
 
 Valin V. Langlois, 3 S. C. R. 1, .'» App. Cas. ll.">; 1 Cart. 158,— The Act 
 37 V. c. 10, imposing upon Provincial Courts the duty of trying Dominion 
 Election Petitions. 
 
 Doyle v. Bell, 32 C. P. (i32 : 1 1 A. P. 32() : 3 Cart. 297,-37 V. c. 9. s. 
 lOti, giving penalties for bribery at Dominion Klections to common 
 informei-. 
 
 Re Nortii Perth. 21 O. R. .')38,— the Electoral Franchise Act does not 
 trench upt)n propeity and civil rights in the Province 
 
 Crombie v. Jackson, 34 U. C. R. ')~ii ; 1 Cart. (W.), — sec. oO of Insolvent 
 Act of 18(i9 piDviding that claims against Assignees be dispo.sedof with- 
 out suit. 
 
 Cushing V. Dupuy, .") App. Cas. 409; 1 Cart. 297, — 40 V. c. 41, s. 38, pro- 
 viding that .Tudgmcnt of Couri, of Appeal in Insolvency matters final. 
 
 Kinney v. Dudman, • Russell and Chesley, 19 ; 2 (^'art. 412, — sec. ')9 of 
 Insolvent Act of 1809, giving precedence to Assignee over executions. 
 
 JShieldsv. Peek, 8 IS. C. R. 079; A. R. 039; 3i C. 1'. 112; 3 Cart. 
 200. sec. 136 of Insolvent Act -if 1S7") providing punishment for fraud 
 in action for goods .sold. 
 
 fShoolbred v. Clarke, 17 S. C. H. 20i), — Winding Up Act applicable to 
 Provincial Companies. 
 
 Smith V. Merchants' Bank, 28 (Jr. 029 ; 8 A. R. 15 ; 8 S. C. R. 512 ; 1 
 Cart. 828, — provisions of the Bank Act allowing transfer of goods to 
 Bank by Warehouse Receipt. 
 
 Quirt V. The Queen, 19 S. C. R. olO: 17 O. R. 015; 17 A. R. 421,-32 
 V. c. 40, vesting assets of Bank of Upper Canada in the Crown for dis 
 tribution among creditors. Hee 30 C. L. .1. 194. 
 
 Teiniant v. Union Bank of Canada (1894) A. C. 31, — Bank Act gives 
 Dominion Pa'liament jM)wer to legislate over every transaction within 
 the legitimate business of a l)anker, notM'ithstanding that the exercise of 
 such power interferes with proj)erty and civil rights in the province and 
 confers ujmii a l)ank privileges as a lendoi^which the provincial law does 
 not reitognizc. 
 
 Colonial Buihling and Investment Assn. v. Attv.-(<en. of Quel)ee, 5 Legal 
 Nens, 110; 9 App. C.is. 157; 3 Cas. 118,--.37"V. c. 103, incorporating 
 uppiiUants with power to buy, sell and lease landed proj)ertj' and l)uil<l- 
 ings valiil. altiiough powers exercised only in Province of Quebec. 
 
 R. V. Bradshaw, 38 U. «,'. R. 504-32,-33 V. c 31, s. 00, authorizing pro- 
 vincial (.'oui't to ti-y appeal from Magistrate witho\it Jury. 
 
 Ward V. Reed, 22 New Brunswick, 279 ; 3 Cart. 405, -.32, 33 V. c. 31, 
 s. 78, providing tiiat penalties recoveralile in a Court of Reconl, although 
 provincial Act declared County Courts shouhl not have jurisdiction in 
 such cases. 
 
 Re WetlierelliV .Tones, 4 0. R. 713 ; 3 Cart. 31.5,-31 V. c. 70, providing 
 for taking evidenci- by Provincial ('ourts foi' use in foreign triluuud, .see 
 also ex |)arte ISmitii, 10 L. C. Jurist, 140 s. p. 
 
 Russell V. Tiie(^ueen, 7 Ajm. (,'as. H29; 2 Cart. 12, — the Canada Tem|)ur- 
 ancc Act proiiibiting tlie sale of liijuoi' in muniuipalities when assented 
 to by Electors tlicieof. 
 
 R. V. Stone, 23 O. R. 40, 52 V. c. 43. an Act to provide ag.iinst frauds 
 in suiiplying milk to cheese factories, etc. 
 
CONSTITUTFONAL LAW. 
 
 53 
 
 (1S04) P'liok V. Biishin, 26 O. R. 432, (riiuiniil code. seclioiiH 80")-8()6, provid- 
 ing that certificate of (lisinisHiilof <'hargeor imvmeiit of penalty on (.harge 
 ■■ See Heywoo.1 V. Hav,"4()U.C.ft. 
 
 for assault a Imr to civil pnK:ee<lingK. 
 .-)62 ; Nevills v. Ballani (1897), 28 (). H. 
 
 588. 
 
 (ISiKI) McAi'thur v. Northern and Pacific .Junction Railway Co., 17 A. R. 8(i ; Rivilways. 
 4 Cart. .Vt\), — Railway Act limiting time for bringing actions against 
 Railway Company (ov injury caitsed by reason of railway to six months. 
 
 (1808) Re Canadian Pacific Railway (!o. and Township of York, 18C.L.T.48 ; 
 2.'; A. R. ($.■>, — the Railway Act conferring jurisdiction upon the Rail- 
 way ('oniniittee of the Privy C/'ouncil to impo.se obligations as to crossings 
 of railways, maintenance of gates, watchmen, etc. See al.so Orand 
 Trunk Ry' Co. v. Hamilton Radial Klectric; Ry. Co. (1897), 29 0. R. 143. 
 
 (1896) Re Provincial Fisheries, 26 S. C. R. 444,— R. S. C. c. 92. Fisheries. 
 
 (1898) Atty.-(ien. for (Canada v. Atty.-(ien. for Ont. (1898), A. (J. 700,— respect- 
 ing works constiucted in or over navigable waters. 
 
 Other Intra vires legislation. Knactnients of the Dominion Parliament have 
 also been attacke<l as ultra rin-\ upon the ground that they were beyond the 
 IM)wer of a suboiilinate legislatiu-e or were in conflict with Imperial Legislation 
 or because they violated some j)ublic right. In every instance the legislation 
 has been sustained. 
 
 o 
 
 13 
 
 ENACTMENTS ULTRA VIRES OF THE DOMINION. 
 
 An enactment of the Dominion Parliament is ii/Ira i-irtx if it is within the 
 exclusive jurisdiction of a Provinci, 1 Legislature. 
 
 It has already been seen tliat the Dominion Parliament in the exercise of its 
 wide general powers may pass enactments which also woulil fall within the 
 |)owers of the Provinces. Its enactments ai'e not ii/tm rlrex indess they relate 
 to matters purely within Provincial jurisdiction. The cases are, therefore, 
 few. 
 
 In the following cases Dominion enactments were held to be ii/tnt rin-t : 
 
 (J88.J) Liquor License Act, 1883, ."> C.L.T. 66 ; 6 C.L.T. 18:8 Legal News, 17, Linuor 
 26, 379,409: Dominion Sessional Papers (ISSo), .\VIII.,No. 12, S.'m ; ijoeiiges. 
 Wheeler's Confederation Ijiw in('anada, p. 144. The exclusive power 
 of licensing the licpior traffic is vested in the Provincial Legislatures. 
 See remarks in argument of Liquor Prohil)ition Appeal, 1895, pp. 147, 
 319, .320. 
 
 (18!i6) Atty.-Gen. of Ont. v. Atty.-(ien. of Dominion (189<J), A.C. 349, the prohibition. 
 Dominion Parliament have no power to prohibit the sale of li(juor in any 
 one province, consequently^' they liave no jiowcr to lepeal provincial 
 legislation upon the sanij jKiint, The provisions of The Canada Tem- 
 perance Act (Scott A,vt) pur|x3rting to repeal The Tenijiorance Act of 
 1864 (Dunkin Act) are ii//m riirx of the Dominion Parliament. 
 
 (1880) McClanaghan v. St. Ann's Mutual Building Society (1880), 24 L.C ppoyjjmjg^ 
 .lurist, 162 ; 2 Cart. 2.37. The Dominion I'arlianient iuis no |)ower to companies, 
 provide for the li(|uidation of building societies in the Province of (Que- 
 bec, whether solvent or not. See as to Insolvent (^inipanics Shoolbrcd 
 
 V. Clarke (189(1), 17 S.(J.R. 26.-), supra. 
 
 (1881) R, V. Mohr, 7 Q.L.R. 183. 2. Cart. 2.")7. In the absence of the ol)jc<!t 
 of a c<mipany incorporated by tlie Dominion Parliament being to connect 
 two or more Provinces by telephcne lines, or of the undeitiiking of the 
 comjjany being declared to be for the general advantage of Cana<lii, or 
 oftw-' or more Provinc^es, an .\ct jH'ofessing to i^onfer a right tocicct 
 jioles in the streets of critics and towns was held to be ii/tra rlri-i. 
 
 (1887) Kor.syth V. Bury, lo S.C.R. .'>43, an Act of the Dominion parliament 
 incorjKirating a ccinpany for the ]>urchase of the Island of Anticosti, 
 situated in the Province of t^uel)ec, wan said by Ritchie, C.J., and 
 Strong, .1., to be ii/titi rirts, but tlu' point was not decided as the Couit 
 licld that the appellant was estoi)pcd from i|U('Htioning the constitution- 
 ality of the Act. 
 
 R. V. Robertson, 6 S.C.R. .">2 ; 2 Cart. 6."). 
 
 ;2 
 
 r 
 
 1 
 
 i 
 
 i 
 
 (1882 
 
 (1898) Atty.-(ien. for Canada v. Atty.-Oen. for Ont. (1898), A.C. 7<NI. 
 
 Fisheries. 
 
54 
 
 CONSTITUTIONAL LAW. 
 
 (ISiXi) Re I'l'ovimMiil FiHhcrieH, •2(\ S.O.K. 444. The jnovisions of R.S.C. f, !>">, 
 HO fur UN tlifv iitti'inpt to coirrcr fxclnHive iij;htR of fiHliiiig in iHiiviiicial 
 waters, are n/li-ii ///v.v. The powers of tlii> l)oiiiinion respei ting " Sea 
 Coast anil [nland Fisheries " do not give anthoiitv to (teal wi . ))ro|)erty 
 and civil rights, such as the ownershi]) of the ))eds of rivers, ir of the 
 fisheries. The Dominion Parliament has, however, ahs.ilute powirr of 
 legislation short of conferring proprietary rights, such as laws, imposing 
 a tax liy way of lieen.se, or forliiililing tisli t,i he taken at improper sua- 
 son or in im))r<p|)er manner, or with destrm live instruments. 
 
 HOW FAR INCIDENTAL POWERS OF DOMINION PARLIA- 
 MENT EXTEND. 
 
 The extent of the incidental jxiwer of the Dominion Parliament to trench on 
 llie cnumerat<'(l jxiwers of th(^ ])rovinces does not seem to he ca|)al>le of a hard 
 and fast dividing line. It has l)cen saiil hy eminent Judges that I'ailiament 
 may act only so far as such interference may la" necessary, and that any clanso 
 in an .Act wliich nnncccs.sarilv interferes with tiie rights of the provinces is 
 invali<l. See per Uitchic, ('..)., H. v. Rol.ertson (1HS2), (i S.(;.R. 11(», 111 ; 
 per Hurlon and .^! iclcinian, .1..!., .\I<'.\rthur v. Northern and I'ai'itic Junction 
 R. Co. (IH'td), 17 A.H. Sii ; per Henry, .1., Merchants' Hank v. Smith (1884), 
 S S. ('. R. at |). ."141. In .Vtty.-tien. for Ont. v. Atty.-tlen. for Canada 
 (1H!I()| -A.C. at p. .'((id. Lord Watson saiil : "It also appears to tlieir Lordships 
 that tlie excc))tion (the concluding ])nvl of s. !tl) was not meant to derogate 
 from the legislative authority given to |)rovincial legislatures hy these sixteen 
 snhsections .save to the extent of enahling the Parliament of Canada to deal 
 with matters local or jirivate in those cases win re such legislation is necessarily 
 incidental to the exercise of the powers conferred upon it hy the eininierativo 
 heads of clause 91." 
 
 It will he seen, however, that in every ease where clauses in Dominion Acts 
 have been attacked for interfeicnci' with provincial j)owers, the Doniininn 
 legislation has been sustained, ami we therefiae have no example of " lunieees- 
 sary interfenuice." in Tennant v. Union Hank of ("ana<la (1894), AA'. 31, 
 Lor<l Watson said, at p. 4(i, that the expression "hanking" in s. 91 was wide 
 enough to endirace every transaction coming within the legitimate husiness of 
 a hanker, and that the provisions of the Hank Act as to warehotise receipts 
 were valid, although they luul the eH'eet of modifying . ivil rights in the Pro- 
 vince. The test of necessity was not in terms a|)plied. In Doyle v. Hell (1884), 
 II A.R. .13."), Rose J., said: "I do not understand hy the use of the word 
 'necessary' . . . that it is meant to lay down the doctrine that to hring 
 within the ])owers of the Dominion Legislature any ])rovisioii . . . it must 
 nece.s.sarily appear that without such ))rovision it would he iiii/ionxihlc to 
 <arry into cllect the intentions of the Legislature. . . It cannot he that 
 the Courts are to sit in judgment on the exercise of such discretion and dictate 
 to the Legislat\Me whetluir they shall ado))t this or that mode heeauso in the 
 o|)inion of the Cimrts one mode is the more convenient <u' hetter or at least as 
 well ada])ted to etl'ect the purpose of tlie Legislature." 
 
 In McDougall v. Camphell (1877), 41 U.C.R. :»2, 341, it was held that a 
 liarrister could not recover fees for services rendered in an enquiry before the 
 Senate on a divorce hill hy a wife and for auitahle alimony. It was said "tae 
 Senate has no moie claim to award alinuiny and to deci<h' upon the eustody of 
 chddren than it has to devise a scheme for t!\e education of children, etc. 
 Such an enactment wiadd he disregarded by the Courts here." 
 
 DOMINION ENUMERATED POWERS. 
 
 (2) The regulation of trade and commerce. These words include political 
 arrangenu'Tits in regard to traile, regulation of trade in matters of interpro- 
 vineial eoni^ern and general regulation of trade att'eeting the whole dominion. 
 Citizens' Insurance (.'o. v. I'arsons (1881), 7 App. Cas. \\X 
 
 The power to regulate|does not imply the power to prohibit. It assumes the 
 conservation of the thing to be regulated. Atty.-tJen. of Ontario v. Atty- 
 (ien. of Dominion (Prohibition Case) I89«), A.C;. .349, 3«3. 
 
 Provincial legislation of the character mentioned below does not infringe on 
 the exclusive jKiwer over trode and commerce given to the Dominion. 
 
CONSTITUTIONAL LAW. 
 
 55 
 
 (a) Tt-Xlng Statutes. IVink of 'r.pidiitd v. Lamlu' (LSST). 12 A))|i. ('as. ."iSli, 
 (1() Liquor License Acts. II(h1>,'c v. Keg. (IS,S4), !• App, Cas. 117. 
 ((•) Police regulations u.s 'o tires cm wagons ic Hiiwi" |1H!(0)."J IJ.C. Hiiiiti'i' .'!(>. 
 Acts rcgiilat iiig form and I'llcct of partictilar i imtracts. 
 
 (a) In.suraiicc policies, Citizens" Ins. Co. v. I'lirsons (1881), 7 A|)p. Cas. i)G. 
 
 (I.) liills .>f Lading, I!eai<l v. Steele (1873), 34 U.C.K. 43. 
 
 (d) Qeneral License Acts. .Vngers v. Montfeai (187(i). 24 L.C. .lui-. 2.")(). 
 Mallettc V. .Montreal, ill. p. 21)3. 
 
 (e) Game Acts prohibiting export beyond Province. H. v. Koliertson (18S(l),3 
 M.L.H. 1120: M. v. Kiiscowil/ ( IS!!,-)), 4 l!.C. l:l-_'. 
 
 (f) Butchers Licenses. An-.'ers v. .Montreal ( 1H7<>), 24 L.C. Jar. 2o!l: Mallettu 
 V. .Montreal (1S7(I), il.. 2()3. 
 
 (3) Raising money by any mode or system of taxation. 'I'lie Dominion may 
 is.sne licenses and eliargi' a license fee. .\tt\.<len. for Canada v. .\tlv.-Cen. 
 for Out. (Fisheries Ca.se) (1898), A.C. 7(M(, 713. 
 
 As to instances of direct and indirect taxation, see infra s. 92 (2). 
 
 (lOi Navigaticn and Shipping. R.S,(J. c. 92, entitled" An Act respecting 
 c('rtain works constriicled in oi' over Navigable Waters," is clearly legislation 
 relating to " navigation," and is therefore intia vires of the Dominion Parlia- 
 ment : Attv.fien. forCanada v. .Mtv. •< !en. for Ontario (Fisheries Case) ( 1898), 
 A.C. 7(M», 717. 
 
 Harbors. ]{y s. KIS and the :!ril Schedule " I'lililic liarhors are the property 
 of C.mada," This inelndes not only |)nl)lic works liut also all that forms part 
 of the harhoi-. Provincial legislation assnming to give tlie right to grant 
 water lots in such liarhor is invalid. .Attv.-* Jen. for Canada v. Atty.-(ien for 
 Ontario (1898). .X.C. 7<MI, 711, 714, anil tlie foreshores hetween high and low 
 water mark may lie part of the harhor. Holnian v. Creen (1881), (iS.C.K. 707. 
 The Dominion mav grant the foieshoies to a Kailwav Company, Vancouver v. 
 C.l'.K.. 23 S.C.R." 1. 
 
 Notwithstanding the exclusive legislative riglits over navigation and ship- 
 ping poHsesseii hy the Dominion I'arliament the Provinces may : 
 
 (1) Incorporate a navigation (,'ompaiiv, McDcaigall v. Union Navigation 
 
 Co., 21 L.C..Iour. ti3 ; (^ueddv River Boom Co. v. Davidson (1883), 
 lOS.C.K. 222. 
 
 (2) K,xteml tin' limits of a town to the middle of a navigalile river, Con- 
 
 tral Vermont Railway v. St. John (1887), 14 S.C.R, 288. 
 
 (3) Tax Ferrymen and Ferries, Longueuil Navigation Co. v. Montreal 
 
 (1888), 1.-) S.C.R. -)(il). 
 
 (12) Sea coast and inland fisheries. No ))roprietary rights in relation tu 
 fisheries are conferrerl h^- this .section, and no proprietary rights can therefore 
 be conferred hy Duniinion Legislature. It follows, therefore, that R.S.C. c. ,5u, 
 s. 4, assuming to empower the grant of fishery leases conferring an exelusivo 
 light to fish in pro))erty of the provinces is ultra vires, and the subsidiary 
 provisions of the same statute fall w'th it. Atty.-(ien. for C'anada v. Attv.- 
 <ien. for Orit. (Fisheries Case) (18<)8), A.C. 7lX), 714 ; 20 S.C.R. 444. 
 
 (13) Ferries between a Province and any British or Foreign Country or between 
 two Provinces A ferry beiween two points in a province is within the juris- 
 diction of the Provincial Legislature. Duiner v. HunilHirstone (189(1), 2(1 S.C. 
 R. 2m. 
 
 (!')) Banking, Incorporation of Banks, and the issue of paper money. 
 
 Under this provision the Dominion i'arliament has power to legislate over 
 every transaction within the legitimate businesH of a banker, notwithstanding 
 that the exercise of such j)owcr interferes with property and civil rights in the 
 
 fH'ovinee, and confers upon a Hank privileges as a leiuler which the provincial 
 uw does not recognize. In particular it nuij' aUow the transfer to a Bank of 
 goods by way of six'urity without registration, and witiioul regard to the pro 
 
 o 
 
 JO 
 
 c 
 
 I 
 
 r 
 I 
 
 g 
 3 
 
I 
 
 mm 
 
 56 
 
 CONSTITLTTIONAI, LAW. 
 
 visions of a piDvincial (•hatlfl nioitgaijo Ad ief|uiiiiij; all mortgages of goods 
 to bo registered. Smith v. Me.chaiits Bank (1880), 28 Or. ()-29; S A.R. 1 J ; 
 8 S.tJ.R. .-)l'i: Tciimmt v. Uniim Hank of Canada (1894), A.vJ. 31. 
 
 The IVmiinion Parliament may vest tlie assets of a limk in the (,'rown for 
 distribution among creditors. Quirt v. Reg. (1891), 19 S.C.R. ,510. 
 
 (IH) Savings' Banks. Tiie pi'ovinees may ta.x banks. Bank of Toronto v. 
 Lambe (1887), 12 App.Cas., and mav tax their Dominion notes held as Reserve 
 under the Hank .\et. Windsor v. Omn lereial Hank (1882), 3 R. & (i. 420. 
 
 (19) Interest. This extends only to i.iterost on del)ts arising out of contracts 
 and does not prevent a local Legislature from imjx)sing a percentage of 10 per 
 cent, on unpaid Muni(.'i)Md taxes. Lvnch v. Can. X. \V. Land Co. (1891), 19 
 S.C.R. 204. 
 
 (21) Bankruptcy and Insolvency. The main difficulty in dealing with the 
 Dominion powers uniler this c!.uise has been with regard to provincial acts 
 which were said to invn 'e the federal territoiy. The cases will be found col- 
 lected in/ra under provincial i)ow<!rs. 
 
 It is a feature common to all known systems of l)ankruptcy and in.solvency 
 that some compidsory means are provided of procuring a ratable <listributioii 
 of a debtor's a.ssets among his (creditors. Attv. (Jen. for Ont. v. Attv.lien. 
 for Dominion (1894), A.C. 189, 200. 
 
 The Act of the Dominion Parliament providing for the winding up of insol- 
 vent companies is valid, and applies to provincial companies, Shoolbr'" ' v. 
 Clarke (1890), 17 S.C.R. 2().), and it is at least doubtful if a i)rovincial ii.gis- 
 lature could pass an Act of this kind. Quirt v. Reg. ( 1891), 19 S.C. R. .)18, .)22. 
 
 It is clear that the provincial legislatiu'es cainiot enact a Bankruptcy law 
 even until the the Dominion Parliament pa.sses enactments <lealing with 
 thatsubjec* Attg.-CJen. for Canada v. Attg.-(ien. for Ont. (1898), A.C. 715. 
 
 A special Act providing for the realization and distri))utiim of the assets of 
 an insolvent bank is within the legislative competence of the Dominion. (Juirt 
 V. Reg. (1891), 19 S.C.R. olO. On the other hand a provincial Act for the 
 relief of a .society tinancially emlnirassed with a view of preventing iiis(>lveuey 
 is valid. L'Union St. .laciiues de Montreal v. Belisle (1874), L.R. (» P.C. 31. 
 
 Ancillai-y provisions for the working out of an insolvency act may properly' 
 be enacted by the Dominion, although they fall within the classes of subjects 
 assigned U: the provinces. Cushing v. Dupny (1880), o A])p. Cas. 409; Shields 
 V. Peek (1882), 8 S.C.R. ,-)79; Cronibie v. .Jackson (1874), 34 U.C.R. .'il.'}-, Kin- 
 ney V. Dudman (1876), 2 Russell k Chesley 10. 
 
 (23) Copyrights. The right to deal with colonial copyright within the Do- 
 minion is under the exclusive control of the Parliament (jf Canada as distin- 
 guished from the Provincial Legislatures ; but this does not curtail the para- 
 mount authoritv of the Imperial Parliament. Smiles v. Helford (1877), 1 A.R. 
 43«. 
 
 When a Canadian copyright is obtained prior to publication or copyright in 
 Kngland, the possessor thereof is secured completely against all interference 
 in Canada even against English reproductions or copies ma<le under a subse- 
 <|Uent British copvright. Anglo-Caiuulian Music Publishers v. Suckling (1889), 
 17 0.R. 2.39. 
 
 (24) Indians and lands reserved for the Indians. In order to ensure uni- 
 formity of administration, all lands reserved for Indian occupation upon any 
 terms or coiulitions are luider the legislative control of the Dominion. Hut 
 upon the estate of the Crown being disencumbered of tlie Indian title, the 
 l)eneficial inteicst therein accrues to the Provinces in which they are situated. 
 St. Catherines Milling Co. v. Reg. (1888), 14 Apj). (Jas. 4(i. 
 
 Moneys due in respect to Indian Lands! mav be recovered bv the Dominion. 
 Mowat,"^A.-(;. V. Casgrain (1897), «. Q.L.R. (Q.B.) 12. 
 
 (2H) Marriage and Divorce. These words must lie limited by the |)owcr of 
 tht provincial legislatures inider s. 92 (12) as to the solemnisation of marriage. 
 Citizens" Ins. Co. v. Parsons (TS82), 7 App. Cas. 108. 
 
 (27) The Criminal Law, except the Constitution of Courts of Criminal Juris- 
 diction, but including procedure in criminal matters. The Dominion Parlia- 
 ment may declare anything a crime, but oidy so as not to interfere with or 
 
CONSTITUTIONAL LAW. 
 
 67 
 
 cxohidi' the ))i)wers (if the iiioviiKL's of <lualiiig with tho sanu' thing in its civil 
 asiK'ot and of imposing sanctions for the observance of the law so that though 
 the result might he an inconvenient exix)sure to a douhle liability that pos- 
 sibilitv is no argument against the light to exercise the power, see jier^K. 
 Blake^Q.c;., 17 A. R. :>-J.-). 
 
 A ])rovineial Statute imposing fine and imprisonment for fraud in adulterat- 
 ing milk was iield lo he valid, being foi' the proteotion of civil rights, R. v. 
 Wason flNiMI), IT A.R. 'i'il, while a similar Dominion Statute was held to be 
 valid as « (miing within its powers over criminal law, H. v. Stone (I81V2), "iS 
 O.K. 4«. 
 
 Tlie comi)etency of a provincial enactment cannot be tested by the severity 
 of the sunction .so long as that is limited to tine, penalty or imprisonment, 
 perO.^ler, J.A.. 17 A.H. •_>40. 
 
 It is competent for the Dominion to enact that a criminal prosecution shall 
 bar a civil reme<ly, Frick v. Brisbin (1894), -id O.K. 42.S. 
 
 Crtminal Procedure. The Dominion Parliament has exclusive jurisdiction to 
 provide the proc'cdure to l)e followed in the prosecution of all offences which 
 are crimes at common law, or made so by Statute within tliat Parliament's 
 juri.sdiction. 'Plu' ))rovincial Legislatures, or the other hand, have power to 
 provide for the course of trial and adjudication of otlenders against their lawful 
 enactments. R. v. Wason {18!H)). 17 A.R. iS-i. 
 
 The utmost discretion is given as to tlie forms of procedure which may l>e 
 enacted. Kiel v. Reg. (188.")), 10 A)))). Cas. ()".■), see infra provincial powers. 
 
 Enumerated classea are exclusive. Whenever a matter is one of the classes 
 sjH'c'itied in s. ill, legi.slation in relation to it by a I'rovincial Legislature is in- 
 eonipetent. .Atty.-iien. for (/'anada v. Atty.-(ien. for Out. (1898), A.C. 7L>. 
 
 PROVINCIAL ENACTMENTS. 
 
 •«4 
 
 c 
 
 Provincial enactments. From the circumscribed areA allotted to the Provin- 
 cial Legislatures it was to be exi)e<'ted that their enactments would be more 
 frequently attacked than those in tlie central Parliament. Hut few cases have, 
 however, arisen in which Provincial Legislation has in the end been found to be 
 \dtra vires. There has been ])erhai)s a tendency in local courts to narrow Pro- 
 vincial j)owers, but the Privy (council lias shown a tendency tc support all 
 legislation of a local or private nature. Some of the principles to be deduced 
 from the ca.ses are the following: 
 
 (a) I'he subject matter must fall within the classes of subjects enumerated 
 in section 92. Dobie v. Temporalities Hoard (1882), 7 App. Cas. 1.36. 
 
 (b) The onus is on the party alleging the Act to be nllrn rire.x to shew that 
 the matter being of a local or private nature <loes al.so come within one or more 
 of the classes of subjects speciallv enumerated in the 91st sectioa. L'Union 
 St. .lacipies de Montreal v. Helisle'(1874), L.R. (i V.V,. %\. 
 
 (c) Subjects which in one aspect fall within s. 92 may in another aspect and 
 for another purpose fall within s. 91. R. v. Hodge (1883), 9 Ajip. Cas. 117. 
 
 (d) The language of an enactment will be so construed as to bring it if 
 possible within legislative authority. Shiehls v. Peak (1881), 8 S.C.R. .)79; 
 Mi.U'od V. Attv.-Oen. New South'Wales (1891), A.C. 4.")j; Monkhousc v. 
 <i. T. R. Co. (1883), 8 A.R. (i.S7; Attv.-Cen. of Canada v. Atty.-Gen. of 
 Ontario (1894). 23 S.C.R. 4.)8. 
 
 (c) Knaetments of a provincial legislature may be valid altlunigli liable to be 
 superseded by enactments of the Dominion Parliament. Attv.-tJen. of Out. 
 V. Ally. -Cell', of Dimiinion (1894), A.C. 189, 2(M1; Atty.-den. o"f Out. v. Atty.- 
 (ien. o"f ])oniini(m (1896), A.t). .348, 3«(>. 
 
 (f) Bex'ause the powers of a jirovincial U^gislature may be used unwisely or 
 so as to nullify the jxiwcrs of parliament is no reason for placing a limit on 
 whatever power falls within the legitimate meaning of the enumerated classes 
 of subjects. Hank of Toronto v. Lambe (1887). 12 -Ajip. (Jas. .)86; 
 
 (g) The general power to legislate concerning every matter in a provincial 
 sense, local or private, given by s. 92 (16), although wide enough to cover, was 
 not intended to include provincial legislation in relation to the classes of sub- 
 ie<ts already enumerated. Attv.-(!eM. of Ont. v. Attv.-CJeii. of Dominion 
 (IS'16), A.C.'.36."). 
 
 i 
 
 i 
 
68 
 
 CONSTITl-TIONAL LAW. 
 
 ULTRA VIRES ENACTMENTS OF PROVINCIAL LEGISLA- 
 TURES. 
 
 Bankruptcy and Insolvency. Hfj;. v. ClmiKllcr- (ISdS), -2 Cart. Vil. I flaiiimy 
 .V)ti, iiii Act |ii-o\ iiliiii; t'(ir tlic (lisi>liai-j,'f "f a dclitoi' fiiiin j,'iiiil mi pionf nf 
 irmliilitv tn pii.v dclit.^ Has held to lie iiltia viics iiH fiilliiij,' within tlic powciM 
 (if till' Diiiiiiiiioii I'iuiiiiiiiciit MS to haiikruiitty mid iiiSDlviiuy. 
 
 It would a|i)K',ir. lidHcvcr. in the li;,'lit of suliscinifrit ili-iisions t" fall witliiii 
 the ]MiW(is iif the lcj;islatiiic as tii provincial courts. Kx i)art(' KllisllSTM), 
 1 1'. A 15. .">!tS, -JCait. .VJT; Attv.-t Icii. of Ontario v. .\ttv.-<!cn. of Dominion 
 (|S!I4), A.C. I.S!»: Clarksoii v. Oiil. Kank (ISHH), l.') A.H. 'l(i(i. 
 
 Munloch V. Windsor it Annaiiolis Ry. Co. ( ISTT). :? Cart. :<(iS; Kiiss. K(|. 
 137. ail A<'t for facilitating; anangcnicnts lictwecn Hallway Companies and 
 their creditors was held ultra viri's for the .same reason. 
 
 There would a|>]icar to lie no olijection to such an .\ct with regard to a 
 
 frovincial (■ompanx so lonj; as there was no conllict willi a ;,'eiii'ral Dominion 
 nsohenev laH . I/Uiiion St. .]aci|ues de Monti'eal v. Helisle ( IS74). L. K. (>, 
 T.C. .31. ■ 
 
 Criminal law. (iilison v. Mi Donald ( ISS.".), 7 O.K. 40 1 ; :{ Cart. :U'.). the 
 jirovincial lcij;islatures have no power to authoi'i/e a County .lud},'e to preside 
 at a Criminai Court of a county otlier than that for which he is ii|)|iointed hy 
 the (hivernoi -Ceheral. luit see He County Courts of British Columliia ( 1S92), 
 21 S.C.R. 44(i, which holds the contiary. 
 
 Crimlnallaw. H. v. Tohmd (ISiVJ), -JiO.H. ."•()."), the provincial statute, ."i3 
 Victoria, c. IH (Ol. conferring; upon police mai;istrates the |)ower to try and 
 convict persons chaif^eil with for;;cry is ultra vires of the piovineial lej;isla- 
 ture, heiug criminal ]iroceduie and tlierefore within the jiower of the federal 
 parliament. Hut the Act so far as it provided that the courts of (ieneral Ses- 
 sions should have such power is valid as lieinii '" relation to the constitution of 
 a Jirovincial court of criininal jurisdiction. H. v. Levinger (892), 2"2 (J. H. (i90. 
 
 Corporations. Dohie v. Tem|)oralities Hoard (ISS'i), 7 App. Cas. l.SO; 1 Cart. 
 3.")1, the (^ueliec Legislature had no ]iower to repeal an Act of the I'rovince of 
 Cana<la creating a coriKiration having its (•orporate existci.ee and rights in the 
 I'roviiieos of Ontario and Quehec, though it might have imposed conditions 
 upon the transaction of liusiness hy the corjioratioii in (Quebec. 
 
 Railways. Bourgoin v. La Coiiipagiiie du Cheiiiin de Fer do Montreal, 
 Ottawa, et Occidental Ry. Ci*. (188(t), ■"> App. Cas. ,Shl ; 1 Cart. 2.3."?, a proviii- 
 eial legislature has no power to transfer a federal railway to a new eomiiany 
 or to siihstitute for it a pniviiK^ial company. 
 
 Supreme Court. Clarkson v. Ryiin (1890), 17 S.C.R. 2."il ; 4 Cart. 4.39, a 
 provincial legislature has no jiower to limit the jurisdiction of the Supremo 
 Court. 
 
 Taxation. Atty. -fJen. of Quehoc v. Queen's Insurance Co. (1878), .3 App. 
 Cas. 109(); 1 Cart. 117, an Act imposing a stamp tax upon policies of as.suranee 
 is^iroct taxation, and therefore heyond the powers of a local legislature. So 
 also is a stamp tax on exhihits in legal |)roceedings. Attv. -Oeii. of Quehec v. 
 Reed (188,-)), 10 App. Cas. 141. 
 
 Leprohon v. Ottawa (1878), 2 A.R. .V22 ; 1 Cart. 592. The Court of Appeal 
 held that every power conferred upon local legislatures was subject to an 
 implied limitation that it must not encroach upon or interfere with the powers 
 conferred elsewhere, and that a tax hy or through a provincial legislature upon 
 the means or in.struments hy which the Dominion (rovernment is carried on is 
 ultra vires and therefore void. See, however, otlier cases on taxation which 
 do not appear to support this decision. See also Timmerman v. St. John 
 (189.3), 21 S.C.R. 711. 
 
 Intoxicating Liquors. (Jreat conflict has existed as to the powers of provin- 
 cial legislatures with reference to the sale of intoxicating liquors. It has now 
 heon settled that the exclusive jurisdiction over the licensing of the retail 
 trade is vested iu tho provinces. The provinces, moreover, may punish infrac- 
 tions of its licensing laws by fine or by imprisonment at hard labor. 
 
CONSTITUTIONAL LAW. 
 
 69 
 
 l(i4, tlif ])ri)visi()n of the Liciuor 
 t.> tiimpL'iing witli witnesses was 
 
 R. V. Hodge (1884), 9 App. C'lis. 117. An Act proliihitiiig tlio sale of !i(|U()r 
 witliin tlie provinee is within the powers of ii hiciil legislature so long as a 
 Dominion nrohiliitory law is not in force in the loiality to wliieh sucli Act 
 applies. The Parliament of Canada, on tlie otlier hand, cannot imperatively 
 enact a proliiliitory li>w adapted and confined to the re(|iiirements of localities 
 witliin a province. A ))rov'iicial legislature has no juri-sdictioii citlier to pro- 
 hil)it the manufacture in or till' importatioiKif li(|Uors into the province; Atty. - 
 (ien. of Ontario v. Atty.-(ien. of Dominion (1.S96), .\.(;. .348. A provincial 
 legislature lias tlie right to rc(|uire lucwers to take out a licen.se. Hrewers and 
 Maltsters' Assn. of Ontario v. Attv.-(ien. for Ont. (18!)"), A.C. 231 ; R. v. 
 Halliday (I8<W), -21 A.R. 42. The decision in Severn v. Reg. (1877), 2 S.C.R. 
 7(1 is overruled. 
 
 In K. V. Lawrence (IS78), 4.S U.C.R. 
 License Act (still retained therein) relatin;^ 
 
 hoM to lie idtra vires as relating to criminal law, and in R. \. Roddy (1877), 
 41 U.C.R. 291, the |)rovisions of the Li(|Uor License Act relating to evidence 
 of the defendant were lielil to \h- ultra vires as relating to criminal procedure, 
 hut since the decisions in R. v. Hodge ( IKS.'l). '.) App. ('as, 1 17 and R. v. Wasoii 
 (1890), 17 A.R. 221 ; R. v. Hittle (1892). 21 O.K. (lit.-., these decisions cannot 
 he said to he satisfacttory exce])t, perhaps, u|»on the ground that they were 
 comprised in the domain of criminal law iiefore Confederation. 
 
 Public Harbors. The provinces liave no title to lands forming jiart of a puh- 
 lic liarlior. That ))art of R.S.O. (1897), c. 28, s. 49, assuming to authorize the 
 grant of water lots in public harhors is iilh-n (•/(•(.«. Atty. -< ien. of Can. v. 
 Atty.-(ien. of Ont. (1898), A.C. 714. 
 
 Fisheries. Regulations oontrolling the manner of fishing are within the 
 exclusive competence of the Dominion Parliament, and sections 28-39 of 
 R.S.O. c. 288 are iil/nt rms, Attv. -Oen. of Canada v. Attv. -(Jen. of Ont. 
 (1898), A.C. 714. 
 
 PROVINCIAL POWERS. 
 
 1. Amendment of the Constitution. The provincial legislatures may pass 
 Acts defining their powers and privileges. The independence of the provin- 
 cial legislature.s from outside interference and their j)rotection and the protec- 
 tion of their members from insult while in the discharge of their duties, are 
 matters which may be classed as part of the Cimstitution. The legislature 
 has none the less a right to protect and punish obstruction to the business of 
 legislation because the interference or obstruction is of a character wliich involves 
 the commission of a criminal offence or brings the ofl'ender within reach of the 
 criminal law. The legislature may relieve members of the House from civil 
 liability for acts done and words spoken in the House. Fielding v. Thomas. 
 (1896), A.C. 600, 610. 
 
 By the combined etTect of clauses 1, 4 and 1 4 it is entirely within the discretion 
 of a Provincial Legislature to determine by what officers of the Crown, or in 
 other words, the hxecutive(tovernmentof the Province shall be represented in 
 its Courts of law or elsewhere and to define by Act of Parliament the duties 
 whether substantial or honcjrary which are to be incumbent upon these officers, 
 and the rights and privileges which they are to enjoy. Attv.-(len. for Domin- 
 ion V. Atty. -Gen. for Ontario, 14 T.L.R'. 106 ; (1898), A.C. 247. 
 
 A statute governing trials of controverted election petitions, and providing 
 there shall be no appeal, is valid, and the Grown has no prerogative right to 
 admit an appeal. Theberge v. Landry (1876), 2 App. Cas. 102. 
 
 2. Direct taxation within the Province. The subject of direct taxation falls 
 wholly within the jurisdiction of provincial legislatures. Rank of Toronto v. 
 Lambe (1887), 12 App. Cas. 5'!i. The provincial legislature may impose direct 
 taxation for a local purpose upon a particular locality within the province. 
 Dow v. Black (1875), L.R. 6 P.C. 272. 
 
 The definition of .Tohn Stuart Mill has been approved by the Privy Council 
 as defining accurately the distinction between direct aiul indirect taxation. 
 That definition is as follows : "Taxes are either direct or indirect. A direct 
 tax is one which is demanded from the very persons who it is intended .)r 
 desired should pay it. Inclireet taxes are those which are demanded from one 
 person in the expectation and intention that he shall indemnify himself at the 
 expense of another ; suth are the excise or customs. 
 
 O 
 
 50 
 
 c 
 
 r 
 I 
 
(■.0 
 
 CONSTITITTIONAI, LAW. 
 
 " Tlie piiMliuci 
 not witli till' ii 
 liini the < 
 
 I iiii|xii'toi' of 11 commodity in crullfil u|hiii to pav ii tax on 
 • lit ion to levy ii |>ernli(ir rontriliution upon him, out to tax 
 
 tlnou^h him the < ■ isumeis of the comiiKHlity, fiuin whom it is HumMwed that 
 he will recover tin- uiiount hy munnH of an advance in price.'' Mill's Political 
 Kcononiy, Hook V. <■. 3, 
 
 The best general rule is to look to the time of payment, and if at the time 
 the ultimate incidence is uncertain, then it cannot he called direct tilxation. 
 Atty.tien. for Quebec v. Reed (1884), 10 App, Cas. 144. 
 
 The following are instances of direct taxation which have been held to he 
 valid. 
 
 A tax imposed ujjoii lianks carrying on Inisiness within n province varying in 
 amount m itli the paid up capital and with the numtier of offices whether or luit 
 their ])rincipal place of Ini.siness is witliin the province. (188") Bank of Toronto 
 V. Ijimhe, 12 Ap)). (.'as. ."i".'). 
 
 A tax of a specified sum imposed on each Insurance Company carrying on 
 business in a provuice ; North British & Mercantile Insurance Co. v. Lambe 
 (1887), l-.'App. Cas. 07.). 
 
 A tax on Brewers; Brewers and Maltsters' Assn. v. Atty. -(Jen. for Ont. 
 (I8<»7), A.C. 2.S1. 
 
 A tax on companies not incorporated by or under the authority of the provin- 
 cial legislature ; Halifax v. Western Ass. Co. (188;)), 18 N.S. 387 ; Halifax v. 
 Jones (1896), 28 N.,S. 4.54. 
 
 A tax on Dominion notes held bv a Bank as jwrtion of its cask reserve, 
 Windsor v. Comnieicial Bank of Windsor (1882), 3 Rvi.ssell & Celdert, 42(1 ; 
 3 (.'art. 377. 
 
 A tax on ferrymen o\ steamboat ferries is intra vires ; Longiieuil Navigation 
 Co. V. Montreal (1888), l.i S.C.R. .)66. 
 
 A tax on mortgages ; Re Yorkshire Guarantee Co. (1895), 4 B.C. 258. 
 
 .\ license tax on butchers ; Angers v. Montreal (1876), 24 L.C.J. 259 ! 
 ■2 Cart. 3.3-,. 
 
 A peiialtv of 10 per cent, for non-payment of Municipal taxes ; Lynch v. 
 Can. N. W". Land Co. (1891), 19 S.C.R. 204. 
 
 A tax on manufacturers and traders ; Fortier v. Lambe (1894), 25 S.C.R. 
 422. 
 
 The following are examples of taxation under the authority of a Provincial 
 Ivcgislature held to be invalid as being indirect. 
 
 An Act imposing a stamp duty on policies of insurance and premium 
 receipts; Atty.-fien. for Quebec v. Queen Insurance Co. (1878), 3 App. 
 Cas. 1090. 
 
 A stamp duty to become part of the Consolidateil Revenue fund of a Pro- 
 vince imposed on exhiViits tiled in Court ; Atty. -(ien. for Quebec v. Reed 
 (1884), 10 App. Cas. 141 ; and even where the fund was to be set apart for 
 the administration of justice ; Dulmage v. IX)uglas (1871), 4 M.R. 495. 
 
 Uniformity of tax. The want of uniformity or eiiuality in the apportion- 
 ment of the tax does not make it unconstitutional; Fortier v. Lambe (1894), 
 25.S.C.R. 422. 
 
 4. Tenure of provincial offices. Servants of the Crown, civil as well as 
 military, except in special cases where it is otherwise provided by law or by 
 special contract, hold their ottices oidy din-ini; the pleasure of the Crown , 
 Shenton v. Smith (1895), A.C. 225); Dunn v. Reg. (1896), 1 Q.B. 116. This 
 is not by virtue of any special prei'ogative of the Crown, but because such are 
 the terms of the engagement, as is well understood throughout the public 
 service (1895), A.C. 2.35. 
 
 Where an Act provided for the dismissal of civil servants for specified 
 offences it was held to be inconsistent with iniiiorting into the contract of 
 service the term that the Crown might put an end to it at its pleasure ; (!ould 
 V. Stuart (1896), A.C. 575. 
 
 The right to appoint Queen's Counsel has been rested upon this clause as well 
 as upon numbers 1, 13 and 14; Re Queen's Counsel (1896), .23 A.R. 792 per 
 Burton J.A., at p. 803, and per Maclennan, J.A.at p.810; s.c. (1898), A.C. 247. 
 
 The appointment of Sherifl's and Justices of the Peace may also fall within 
 this provision. 
 
CONSTITU""IONAL LAW. 
 
 61 
 
 Police Magistrates. The power to appoint Police Magistrates and .Tusticea 
 of tlie I'eaee is vested in the Province ; Riehardson v. Ranson (1886), 1(1 O. R. 
 387. 
 
 Justices of the Peace. The right to appoint Justices of the Peace is vested 
 in tlie Province ; R. v. Reno (1868), 4 P.R. 281 ; R. v. Bennett 188'_'), 1 O.R. 
 44.5: R. V. Bush (1888), IT) O.R. 308; Re Queens Counsel (18«i), 23 A. R. 7!»*2; 
 see p. 803, R. v. Lee (188"), ir> O.R. 3.")3 ; R. v. Horner (1876), 2 Step. Dig. 
 4.VI. 
 
 Othcers may be appointed to enforce Dominion Acts ; License CommissionerH 
 of Frontenac^ v. County of Frontenac (1887), 14 O.R. 741. 
 
 .">. Public Lands. Ksciieated laruls l)elong to the Province; Attv.-''eii. v. 
 Morcer (1883), 8 App. Cas. 767. 
 
 On the extinguishment of the Indian title to lands in Canada granted by the 
 proclamation or 17H3, the beneficial title therein vests in the I'rovince in which 
 the lands are situate; St. Catharities Milling and Lumber Co. v. Reg. (1889), 
 14 App. Cas. 46 ; 4 Cart. 107. 
 
 The bed of all lakes, rivers, and other waters which at tlie time of confe<ler- 
 ation had not been granted b}' the Crown became vested in the Oown in right 
 of the several provinces, subject to the provisions of section 108 as to pul)lic 
 harlwrs ; Holman v. (Jreen (1881), 6 S.C.R. 707 ; R. v. Moss (1896), 26 S.C.R. 
 .322 ; re Provincial Fisheries (1896), 26 S.C.R. 444 ; (1898), A.C. 7(K). 
 
 "In construing these enactments it must always be kept in view that 
 wherever public land with its incidents is desinibed as ' the propei'ty of or as 
 'belonging to' the Dominion or a Province, these expressions merely import 
 that the right to its beneficial use or to its proceeds has Ik'cu appropriated to 
 the Domitnon or the Province as the case may be, and is subject to uie control 
 of its legislature, the land itself l)eing vested in tlie Crown," per Lonl Watson 
 (1889), 14 App. Cas., p. 06. 
 
 8. Municipal Institutions. Some controver.'^y iuis existed as to the meaning 
 of this phrase. In Harris v. Hamilton (1879), 44 U.C.R. 641, it was said by 
 .\rmour, J. : " It must have l)een in the c(mteniplation of the Legislature that 
 existing laws relating to municipal institutions shouhlnot be affected, and that 
 the Local Legislatures should have power to alter and amend those laws." 
 
 In Atty.-(ien. for Ont. v. Atty.-Oen. for Dominion (1896), A.C. 348, the 
 contention was made that the Legislatures might endow these institutions 
 with all the administrative functions which had been ordinarily possessed 
 and exercised by them before the time of the Union. The Privy Council said, 
 at p. 364, : " Their Lordships can find nothing to support that contention in 
 the language of s. })2. No. 8 which according to its natural meaning simply gives 
 provincial legislatures the right to ci-eate a legal bo<ly for the management of 
 nuniicipal affairs. Until confederation tiie legislature of eacii province as then 
 constituted covdd, if it chose, and did in some cases, entrust to a municipality 
 the execution of powers wliich now belong exclusively to the Pai'liament 
 of Canada. Since its date a provincial Legislature cannot delegate any power 
 which it does not possess, and the extent and nature of the functions which it 
 can commit to a nninicipiil bo<ly of its own creation must depend upon the 
 legislative authority which it derives from the provisions of s. 92, other than 
 No. 8." 
 
 In incorporating a town a provincial legislature may extend tiie limits 
 ther(?of to the centre of a navigable river ; Central Vei'moiit Rw Co. v. St. 
 Joluis (1887), 14 S.(;.R. 288 ; 14 App. Cas. rmi 
 
 In Poulin v. Qiiel)cc (1884), 9 S.C.R. ISo ; 3 CJart. 230, and in Hodge v. Reg. 
 (1884), 9 App. Cas. 117, at p. 131, the Supreme Court and Privy Council 
 respectively assumed that jiolice regulations respecting the licpior trattic would 
 full under the powers rrspccting Municipal Institutions. It wcmld seem, how- 
 ever, that they more properly fall within No. 16, the powers respecting local 
 and private matters ; Atty.-Oen. of Ont. v. Atty. fren. for Dominion (1896), 
 A.C. 348, see supra. 
 
 Tile .same may be said of flic <lecision iu Kx parte Pillow (1883), 27 L.C 
 .Tur. 216 ; 3 Cart. 3.")7, where the right of provincial legislatures to authorize 
 municipal corporations to pass by-laws against nuisances was said to be inci- 
 dental to municipal institutions. 
 
 See also Lynch v. Can. N. West Laud Co. (1891), 19 S.C.R., p. 204, supra. 
 
 
 I 
 
 r 
 
 1 
 
 c 
 
 $ 
 
 \ 
 
62 
 
 CONSTITUTIONAL LAW. 
 
 9. Liceniei. That the cxchiNivf power of liceiisiiig the retiiil mile of liijiioiH 
 ill llie |>i"\ iincN JH vesteil in tlie I'm^ iiuial LegiBhituics iH now conehiMively 
 Kettk'il. 
 
 Hiwlgev. Heg. (1S84), it Api). (as. 117. 
 
 Suite V. Three RiverH (188.-)), 11 S. C. 11. i".. 
 
 Re U(|Hor License Ael 1883 ( 188.-.), .'.('. L. T. llC, 8 Legal News 'id, ;J7i», 4l)il: 
 4 Cart. .•{42. 
 
 It i« now ttlwi settled that provincial legislatures have the right to require 
 lirewers to take out a lieen.se so long as the act is not inilireot taxation. 
 
 .Molso.i V. UmlK) (1887), 1.5S. C. K. •-'.'):}. 
 
 R. V. .M.Dougall (188!I), •-'•-' X. S. 4(i-_'. 
 
 .McMananiy v. Sherl.rooku (1890), .M. L. K. (H). H. 4()!». 
 
 R. V. Halli.lay (18113), 21 A. R. 42. 
 
 Brewers' and Maltstcrw' Association v, Atty.-tien. forOnt. (1897), A. C. 2.S1. 
 
 The case of Severn v. Reg. (1878), 2 S. (J. R. 70, must now he treated as 
 overruled. 
 
 The Lorils of the I'rivy Council had occasion to considei' the wonls " other 
 licenses " in Hrewer.s' and .Maltsters' .\ssn. v. Atty.-(ien. f(U- Ont. (18!l7), .A.C. 
 2.11, anil they said at p. 237, " 'Ihey lio not douht that general words may he 
 restrained to things of the same kind as those particulari:ed, hut they are 
 uiiahle to see what is the genus which would include "shop, saloon, tavern" 
 and "auctioneer" licen.ses and whicli would exclude hrewers' and distillers' 
 licenses." See on this point Sun Fire Office v. Hart (1889), 14 App. Cas. <»8, 
 Pigeon v. Recorder's Court Montreal (1890), 17 S. C. R. 495. 
 
 A jiroviniial legislature has power under this clause to authorize a niunici])al 
 corporation to imi)ose a licx-nse fee on any private stall or shop. Pigeon v. 
 Recorder's Court Montreal (181MI), 17 S. C. R. 49.'i. A revenue may he raised 
 hy tisherv licenses. Attv.-(ien. for Canada v. Atty.-tien. for Ont. ( Fisheries 
 case) (1898), A. C. 7<X). 
 
 In R. V. Howard (1880), 4.'5 U. C. R. 346, douht was e.xpressed as to the 
 power of the I.KKal Legislatures to limit the numher of licenses or lo authorize 
 the limiting thereof, hut the reasoning was hased on the assumption that the 
 Local Legislatures had no power to piohihit the retail sale of licpior, a view 
 now clearlv untenahle. See Attv.-Oen. for Ont. v. Atty.-tien. for Dominion 
 (189(i), A. C. 348, 24 S. C'. R. 170. 
 
 The right to license (coupled at any rate with clauses 15 and 1(1) includes 
 tlie right of imposing ])enalties for violating the provincial laws in relation 
 thereto. K\. parte Leveille (1877), 2 Stephens Dig. 440 ; 2 Cart. 34!' ; R. v. 
 McMillan (1873), 2 Pugsley 110, 2 Cart. 489. 
 
 The Local Legislatures may also prescrihe the (lualirications required to 
 he posses.sed hy a licensee and may (lehar him from certain civil rights ; 
 Uanaher v. PeteVs (1889), 17 S. C. R. 44 ; 4 Cart. 42.'). 
 
 Reipiiring licenses to he taken out is not an interference with trade anil 
 commerce. See in aduition to foregoing cases. Angers v. Montreal (187<)), 24 
 L. C. .Jurist 2J-.9, Mallette v. Montreal (1879), 24 L. C. .Jurist 2()3, 2 Cart, 3.3"), 
 340, in which cases a license tax on hutchers was held good. An Act which 
 purported to he a licensing Act, hut which did not compel the licensee to 
 pay anything for the license nor impose any penalty for not taking it uji, hut 
 which required a stamp to he placed on policies issued hy the licensee was held 
 to he ultra vires as indirect taxation ; Attj'.-Csn. for Quebec v. Queen Ins. 
 Co. (1878), 3 App. Cas. lOiK), 1098. 
 
 f\0. Local works and undertakings, 
 
 \ll. Incorporation of companies. A Provincial Legislature has power to 
 authorize the construction of a railway ip the Province to connect at the 
 houndarv with a railway in a foreign eonr.crv ; Kuropean and North American 
 Ry. Co. V. Thomas (1871) 1 Pugsley 42 ; 2 (Jart. 439. 
 
 A company may lie incorporated under a Provincial law to erect a boom in a 
 navigable river, but the Provincial Legislature can confer no power to obstruct 
 navigation. Authority for such purpose may be accjuired under R.S.C, c. 92. 
 Queddv River Driving Boom Co. v. Davidson (1883) 10, S.C.R. 222. 
 
 ill 
 
CONSTITUTIONAL LAW. 
 
 68 
 
 A Dominion Railway coming within clause 10 (a) as being a work for the 
 unicial ntlvuntaj^c of (''iiiuulii is not siil)joct to the provisions of the Provincial 
 Kiiihvay Act as to pai kin^ frogs, such A<t professing only to apply to railway 
 coin|)aiiics in respect of wliicTi the Provincial Legislature iiad .luthority to 
 eiiiiit such |)r()visions. Monkliouse v. (irand Trunk Hy. Co. (1883) ^ .\.l<. 037. 
 
 On the incorjioration of a company tlie Legislature has power to say what 
 iue tlic powers of the Conipanv under the incoiporation. Re Dom. Provident 
 Assn. (l«i»t)i.")(). R. til!». 
 
 On incorporating a (,'onipany a I^-giBlature may authorize the iKirrowing of 
 niiiney at any rate of interest already legalized as to otliei' ])erH(ms having a 
 riglit to l)orr"ow. Roval Can. Ins. Co. v. .Montreal WarehoiisiMg Co. (18HII)3 
 L.N. I.V), -iCart. 3(il." 
 
 A Provinciiil Legislature has exclusive jurisdiction to incorporate a Naviga- 
 tion (>)mpanv, tlie operations of which are limited to a jmrticulnr Province. 
 Macdougall v. UTiion Navigation Co. (1877) 'il L. C. .lur. (W, "2 Cart. 'i^S. 
 
 .\ P-ovincial Act autliorizing the winding up of (irovineial companies is 
 valid; Re Wallace Hiiestis (Jrey Stone Co. (IHSl) ]{ussell's Kcp Rep. 41)1 ; 3 
 Cart. 374, Init see as to an insolvent eomi>any, (^tuirt v. I'eg. (ISiM) li» S. C. 1!. 
 :,\X. .Vi-J. 
 
 A company incorporated liefore confederation may lie rc((iiire(l to take out a 
 |)rovincial license to .sell gun))owder, as a matter of police regulation. Hamil- 
 ton Powder (,'o. v. Laiiihe (18S.">). .M. L. H., 1 Q. H. 4(iO. 
 
 12. Solemnization of Marriage. In Citizens Insurance (Jo. v. Parsons (1881) 
 7 App. Cas. !Mi, at \). 108 tiie Privy Cimncil said " N )t withstan<ling this 
 endeavor to give preeminence to the l)(jmiiiion Parliament '" (referring to the 
 wid teinis of Section i(l ) " in i;a.ses of a <uinflicl of poweis it is ohvious that in 
 some (Mses where this ap|)arent eontlict exists the legislature could not have 
 intended that the powers exclusively assigned to the Provincial Legislattnc 
 should he ahsorhed in those given to the Dominion Parliament. Take as one 
 instance, the sul)ject "Marriage and l)ivor< e " contained in the enumeration 
 r>f suhjeets in .section !(1 ; it is evident that solemnization of marriage woidd 
 odiiie within this general deseri]ition ; yet •' Solenniization of marriage in the 
 Pr()vin('e ' is enumerated among tlie classes of suhjeets in iSee. il2, and no oni! 
 can douht. notwithstanding the general language of Sec. 91, that this subject 
 is .still within the exclusive authority of the legislature of the Provinces. 
 
 13. Property and civil rights within the Province. In the ca.ses where nro- 
 vincial legislation lias been held to be valiil under fliis section the main ditli- 
 culty has been to answer the obje<-tion that the exclusive powers of the Dom- 
 inion Parliament were infringeil in respect of the foHowing matters : (1) Trade 
 and C(minierce, (2) Hankru))tey and Insolvency, (3) Criminal Law. 
 
 Trade and commerce. The first (juestion to be decided is, whether the Act 
 impeached falls witliin any of the clns.ses of sulijects enumerated in Sect. 9'2 
 ami assigned exclusively to tlie legislatures of the provinces ; for if it does not, 
 it ran be of no validity, and no other ipiestion would then arise. It is only 
 when an Act of the jnovincial legislature jiritiHt fwii: falls within one of these 
 classes of subjects that the further (piestions arise, viz., whether, notwithstand- 
 ing this is so, the subject of the Act <h)es not fall within one of the enumerated 
 olas.ses of subjects in Sect. i)i, and whether the power of the Provincial Legis- 
 lature is or is not thereby overborne. Citizens Ins. Co. v. Parsons (1881) 7 
 Ajip. Cas. !Hi at p. 109. 
 
 Civil rights embrace not only rights as flow from law but also rights arising 
 from eontiact. The i)hrase does not, however, include all contracts, liecause 
 some contracts as for instance bills of exchange and promissory notes fall within 
 section ill (IS) and are therefore within the jurisdiction of the Dominion Parlia- 
 ment. Both sections must therefore Xtv read together. The power of the Domin- 
 ion Paihanient to pass enactments respecting the regulation of trade and com- 
 merce would include political arrangements with regard to trade requiring the 
 sanction of Pailiament, regulation of trade in matt^irs of provincial concern 
 and it may be the general regulation of trade affecting the whole Dominion. 
 Hilt tlie authority of the Dominion Parliament does not c<imprehend the powei 
 to regulate by legislation the contracts of u particular b,isiness or trade, such as 
 the Imsiness of tire insurance in a particular Province. If, therefore, Insur- 
 ance ('ompanies, British, Foreign, Dominion or Provincial 'jhoose to make cim- 
 tracts of insurance in Ontario relating to property in that Province, the Legis- 
 lature of that Province may (without touching their status) enact that such 
 contracts shall be subject to certain conditions. Citizens Insurance Co. v. 
 Parsons (1881) 7 App. Cas. 9(5, 109-114. 
 
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fill 
 
 04 
 
 COXSTnUTIONAL LAW. 
 
 
 <i^ 
 
 !■''' 
 
 Bankruptcy and Insolvency. It was ijoiiited (lut in Atty.-(ieii. of Out. v. 
 Atty.-<ien, for Dominion (1S94) A. C. ISi) at p. 'iOOtliiit it is ii feature common 
 to all tiif known syHtems of iiankruptcy and insolvency that Monie compulsory 
 moans are provided of proi^ning a ratal>l<? diHtrihution of a delttor's assets 
 among his creditors, and tliat although provision may he made for a voluntary 
 assiginnent as an alternative, it is only as an alternative. It was, therefoie, 
 liehlthat legislatio.i relating to assignments purely voluntary for the henetit 
 of creditors did not infringe on the exclusive legislative power conferred U|S)n 
 the Dominion Parliament as to hankruptcy and insolvency. 
 
 Criminal Law. The dividing line, if such it may he called, hetween legislation 
 re.specting civil rights and criminal law is well illustrated l)y R. V. Wason 
 (1890) 17 A. R 2*21. An Ai't to provide against frauds in supplying milk to 
 cheese or butter maiuifactoi ies had been held t< he ultra vires by the Queen's 
 Bench Division as constituting a new crime. This decision was rever.sed by 
 the (vourt of Api)eal. It was pointed out that the competency of the enact- 
 ment cannot be tested by the severity of the sanction. The legislature when 
 really dealing with proiiertv and civil rights must have jxiwer to say " thou 
 shalt" or " thou shalt not.' Tlie right cannot be denied to a Provincial Legis- 
 lature to legislate frir the better protection of rights of property' by preventing 
 fraud in relation to contracts or dealings in a particular business or trade and 
 to punish the infraction of the h'w so long as Parliament has not occupied the . 
 precise field. The thing forbidden is not ni such a case converted into a crini^ 
 merely because it happens to l)e also morally wrcng, more than any other thing 
 which they may lawfully forbid becomes a crime merely because it is forbidden 
 under a penalty. 
 
 The following cases will illustrate the application of the foregoing principles : 
 
 Re (Joodhue (187'2) 19 tirant, 3()(i. The Provnicial Legislature has power to 
 ])ass an Act confirming an aiTangement whereby a testator's residuary estate 
 in Ontario was divided before the time provided by the Will for distriWtion. 
 
 Re Windsor and Annapolis Railway, (18S3) 4 R. & <i. 420, .S Cart. 387, an 
 Act to facilitate arrangements Iwtween Railway Companies and their creditois 
 is within the competence of provincial legislature. 
 
 Beard v. Steel (1873), 34 U. C. R. 43, 1 Cart. (583, the provincial Act pro- 
 viding that all rights of suit shall pass to the Consignee of goods uiul.-: a 
 Bill of Lading, is valid. 
 
 Kenne<ly v. Toronto (1880) 12 0. R. 211, an Act enabling the Corporation of 
 Toronto to lea.se, sell or otherwise dispose of lands dedicated to them for a 
 public park, was held to be valid. 
 
 R. v. Coote (1873) Law R. 4 P. C. ")99. A Provincial Act authorizing Fire 
 Commissioners to investigate the origin of fires and commit to jjrison witnesses 
 refusing to answer, without just cause, is valitl. 
 
 .Tones V. Canada Central Ry. Co. (1881) 46 U. C. R. 250. Where obligations 
 are authorized to be contracted under a local Act, such del)ts may be dealt 
 with by the same legislature, notwithstanding they are domiciled out of the 
 Pi'ovince. 
 
 Kx parte Dansereau (187*5), 19 L. C. Jur. 210, 2 Cart. 16i5, a provincial Act, 
 providing for the punishment of witnesses failing to obey a summons is valiil. 
 
 Bennett v. Pharmaceutical Assn. (1881) 1 Doricm 3(i(), 2Cart. 230. Provincial 
 Legislatures may prescribe the (|ualification for professions or businesses, and 
 may appropriate fines to Municipal or private corporations. 
 
 Keefe v. McLeiuian (137«' 2 Russell aiul Chesley, o, 2 Cart, 400. 
 Provincial Legislatiu'cs may regu'.ate tiie sale of liijuors, poisons, or uinvlHilc- 
 sonu^ provisions. 
 
 Cleveland v. .\lclb(mrne ( 1881) 4 L.y. 277, 2 Cart, 241. Provincial Legis- 
 latures may authorize tlie Lieutenant viovernor to revoke the right to tolls. 
 
 Can. Southern Railway Co. v. ..ackson (1890) 17 S.C.R. p. 310, 4 Cart. 4')l. 
 The Workmen's Compensation Act is applicable to Dominion Railways. Sec 
 Wnsliington v. (irank Trunk Ry. Co. (1897) 24 A.R. 183, reversed by Suprenu' 
 Court 28 S.C.K. 184. 
 
 Citizens Ins. Co. v. Parsons (I.S82) 7 App. (^as. 9(1. A Provincial Act jiro- 
 Tiding for uniformity of conditions in Fire Insurance Policies, is valid. 
 
 R. V. Wason (I8!K») 17 A.R. 221. A Provincial Act providing foi- punishment 
 for fraud in the sale of milk, is valid. See R. v. Stone ( 1893), 23 O.R. 20. 
 
mmm 
 
 CONSTITUTIONAL LAW. 
 
 65 
 
 AUy.-(ieii. for Out. v. .\tty.-(!L-n. for Dom. (1894) A.C. 189. A i'loviiitiiil 
 .\it giving nn .Assignee for tiie l)enetit of creditors preeedence over exeeutioii 
 rreditors is valid. 
 
 Ke MrDowall and I'alinerslon ( IS9-i) "i-i (). H. .".(>(i. A Provincial Legislature 
 may change the ownerslii)) of land without eonipensation. and ii fortiori may 
 close a Imiial ground, renuive the dead and vest the land in a oorporation on 
 |Kiyiuent of compensation. 
 
 Re l)c VelH-r (1882) "21 N.B. Rep. -KJl, 2 Cart. .m2. A Provincial Act that 
 as against an Assignee in in.solveney. a hill of sale shoidd only take etieot from 
 tiling, is valid. 
 
 The opinions ex|>ressed in Clarkson v. Ontario I5ank (1888) and other ca.ses 
 reported, 1.) A. R. KHi, against the constitutional validity of the Act respect- 
 ing assignments and ])refereiices nuist now be treated as o\ er-ruled. 
 
 .\n Act giving jurisdiction to .Justices of the I'eaee to ordei- payment of 
 wages is iitiru nriy. He (iower v. .loyner ( 1 89" ) 1" C. L.T. 298. 
 
 .V servant of the Dominion (iovernnu'iit is not iclieved from the jjenalties 
 inii)osed hy a I'roviiuial .\ct for non -performance of lahor in cleaning a high- 
 way by shewing that his duties recpiired him at the time to assist in cleaning 
 the track of a Dominion Haihvay. Fillmore v. Colburn (189") 28 N.S.R. 292. 
 
 14. Administration of Justice, (a) Constitution, nuiintenance and organiza- 
 tion of J'rovincial Courts both of civil and criminal jurisdiction. 
 
 Queen's Counsel. I'lc riglit to ajipoint Queen's Counsel is vested in the Pro- 
 vincial ICxecutivc. In He Queen's (.'ounsel ('.89(>) 2.SA.H. 792. The Act 
 autliorizing .such ai)pointment is within the legislative authority of the Pro- 
 vincial Legislature, s. c. .Attv.-Cen. for Dominion v. Attv.-(ien. for Ontario, 
 14 T.L.H. 108: (1898) A.C. 247. 
 
 Lenoii' v. Ritchie (1879) .'1 S.C. H. .'57.'), is overruled. 
 
 Judges. Hut for the ex])ress authority given to the Dtmiinion (iovcrnment 
 by section 9ti to appoint .Judges their ap)M)intment would also iuivc been a mat- 
 ter within subsections 4 and 14 of section 92. Per Macleinian, .1. A.. 2.') A.H. 
 811. 
 
 Provincial Courts. The Provincial Legislatures may cidarg(^ the jurisdic- 
 tion of provincial Couits in<luding those of criminal jurisdiction ; e.g. to give 
 the (Icneral Sessions juiisdiction to trv a (irisonei' on an indictment for forgerj'. 
 P.. V. Levinger (1892) 22 O.K. GSM). 
 
 Kxcept as to the appointment of .Iu<lges of fSiiperior District and County 
 Courts, tht! courts of each I'rovince, inchuling tlic .fudges and officials of the 
 
 tlourt, together with tliosc 
 ction 
 
 persons wl 
 
 iget 
 the juris(lietion and control of the Provincial LegisJ.tui'c ; that Legislature 
 and nt) other has the right to prescribe rules for the (puilitications anil admis- 
 
 l>ractise before 
 Legisl 
 
 tlicm are subject to 
 
 ))leaders or solicitors. Re Queen's 
 Atty.-(!eii. for Out. 14T.L.H. 108(1898) 
 
 sion of practitioners whether they 
 Counsel; Attv.-(!en. foi- Dimiinion v 
 A.C. 247. 
 
 .V provision in a Dominicn .Xct allowing f)arties on the trial of an appeal 
 against a .sunnnary conviction to dispenst! with a jury was held not to be iillni 
 (•//•(.•' or an interference with tlie constitution of the court. H. v. ISradshaw 
 (187(i) :J8 r.(.;.H. .-)(i4 ; 2 Cart. (i02. 
 
 \ Provincial statute providing that a .ludge of one (.'ounly or District might 
 picside at a criuiiiial court in another County or District is valid. He County 
 ('uurts of liritisli Colundiia (1892). 21 S. C. R. 44l> : .sec contra (iibson v. 
 .McDonahl (188.-)). 7 O. R. 401. 
 
 The Provincial .Acts iclating to the att<'ndances of (Irand and Petit .lurors 
 at criminal cou-ts arc vabi • X. v. Kolev (I87.'J), Stevens Dig. .'181 ; 2 Cart. 
 (i.Vl ; see R. v, OKourkc (1,^82). I. O. R."4(i4. 
 
 DiTision Courts The Provincial Legislatures have complete jurisdiction ovei' 
 Division Courts, i:\ hiding tlie appointment of .ludges and oHieers thereof ; Re 
 Wil.sim V. McCuiic (I88;i), 2 O. H. 118. 
 
 Justices of the Peace. The right to appoint .Justices of tho Pi'ace is vested in 
 
 the provinces ; R. v. Hen.i ( I8(i8|, 4 P. R. 281 ; H. v. lit ett (1882), 1 O. R. 
 
 445 : Richardson v. HanRom (188.-)), 10 O. U. :t87 ; R. \. Hush, (1888), U. ,).K. 
 398 ; Re Queen's Counsel (189(1). 2:1 A. H. 792 ; .see p. ,S03 ; H. v. Lee (1887). 
 IrtO. R. 3o.S ; H. V. Hornei (1870), 2 Step. Dig. 4.-)0. 
 
 
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66 
 
 {'ONSTITUTIONAI, LAW. 
 
 14 (bi Procedure in Civil Matters in those Courts. 
 
 Executions from Provincial Courts.— There can be tio doubt that the effect to 
 be given to jiidgiiic'iils ;iii<l rxcciitioiis and the manner mid extent to v hich 
 they may be inaclcavailulilc foi- tlic icciivi/ry of dclits are /jn'iini /mii: v liin 
 till' legislative [Miwcis iif till' IMdviniial I'.irliament. Kxecutions are a ] I of 
 the niaeliineiy liv wliiili delits are I'ccovered, and are subject to reguliiti i IjV 
 that Parliament. The exeiiition is a mere <rcatine uf the law, which may 
 determine and regnlale the riglus u. 'vhich it gives rise. Accordingly, a 
 Provincial .Act ))ost|)oning executions to a s ibseiiiient \oluntarv assignment by 
 the execution debtor is valid. .\tt\'. <ieM. for Ont v. .Vtlv.tbui. for Dominion 
 (1804), .\. C. ISO. 
 
 Jurisdiction of Police Magistrates. The .Statute of the Province of Ontario 
 which antliori/,('s Police Magistrates to try and convii't persons chargcfl with 
 forgery, is nlh-n rirej< ; \\. \. Toland ( l.S!t2)," •-'•2 <). P.. ."><».">. 
 
 Criminal Procedure. .Vot withstanding the reservation of crimiual ))ioccdure 
 to the Doinininn Parliament, theri' is. Iiy necessary im|)lication. power to the 
 Provincial bcgislatures so far to regulate criminal judcedure (if that be i'.s 
 proper name) as to provide for the coin'.se of trial and adjudication of oHeiiil.'rs 
 against its lawful eiiictmcnts : I-!, v. Wason (I8!»(t), 17 .V. R. ±21 
 
 The (ilnebec Kiiensc .Act taking awav certiorari to bring up a conviction 
 nndei- liial Ail is iilint rir'-". p,,pe. v. ({ritfith (1802), 1('> L. ('. .luriht, KiO ; 
 '2('arl. 201 ; Kx parte Duncan (1,S72). Hi L. ('. .hirist, 188 : 2('art. 207 ; Page 
 V. (irilHth (I87.S), 17 L. (-'. .Fuiist, .'llL' ; 2 Cart. .•{08 ; Cote v. Chauveau (1880), 
 7*^. r.. \{. 2.VS: 2 Cart. .SI I. 
 
 Punishment of witnesses. .A Provincial .Act providing for sinnmontng « it- 
 nesses and punishing them for non-attendance is »/^-f( i'/;<-.« ; Kx |)arte Dan- 
 sereau IIS7.">I. 10 1.. ( '. .Jur. 210; 2 Cart. Iti."). 
 
 Judcnnent Debtor. ,A Provincial Legislatuie may pro\ idc tor the imprison- 
 nieiil of judgment debtors for obtaining credit bv fi'aud or other criminal act, 
 Kx parte KlTis (1K7S), 1 Pugs. & IJ. MfA ; 2 Cart. '.'>•>', an<l may provide for the 
 disharge of anv debtor imprisoned uniler pidcess from anv Court, Johnson v. 
 Poynt/. (1881 1, 2 Huss. A- (ield. lOS ; 2 Cart. 41(i. 
 
 Imprisonment for debt. .A Provincial Legislature mav abolish imprisonment 
 for d.'bt, .»rmslii.ng v. XbCutcheon (1874), 2 Pugs. .'Wl ; 2 (Jart. 404. 
 
 Delegation of judicial powers. -.An .-Vet atithcui/.ing all the exerci.se of all 
 powers of a .ludgc by a Master in the winding up of a company under a Pro- 
 viu<ial -Act mav be valicllv passed bv a Provincial Legislature ; Ke Dominion 
 Piovi<lcrit .\ssn. (180f|, 2.") (). P. (il'l. 
 
 Oaollimita. The subject of gaol limits does not so relate to Insolvency as to 
 maka a Provincial .Act extending them ii/tyii rin.^<; Mc.Alinon v. Pine (1873), 
 2 Pugs. 44 ; 2Cau. 487. 
 
 Appeals to Supreme Court. 1 1 is donbtful if an appeal lies to the Supreme 
 Court where a Provincial .Vet exjircsslv provides that it shall not lie ; Danjon 
 v. .Manpiis (1870)) :( S. C. H. 2.')1. 
 
 It is donbtful if sec. ,")! of the Supreme Comt .Act giving 
 _'is (if the Su]irenu' Court to issue writs of Habeas Corpus is 
 if the Dominion Parliament. Pe Spronle ( I88(i). 12 S. C. R. 
 
 Habeas Corpus. 
 
 jtiri.siliciioM lo .lui 
 within the powci.- 
 140. 
 
 Proceedings ajainst absentees. .\ statute of a local Icgiskture authorizing 
 proceedings against aiisentees or contracts made or lo lie perfianu'd in the 
 colony is //(/(•'( I'/o.s. Whether the judgnu'nt will be enforceil by the (^)urts 
 of another niuntrv is a ipiestion for tliose Courts to determine aiul does not 
 atlect the validilv iif the local law ! Ashburv v. Kills (1.S03), A. V. ;W9 ; Stairs 
 V. .Vllan (ISO(i). 28 \. S. R 110. 
 
 Election petitions The Dominion Controverted Klections .Aev in contiuitting 
 jurisdiitioM to the Provincial Courts foi' the trial of Klection Petitions and pro 
 viding the procednre therefor does not contravene <'lause 14 ; \'alin v. Langlois 
 (1870), ."i App. (as. II.V 
 
 Where a Provincial Statute provides that a jtulgmeni on an election petition 
 shall not be susceptible of appeal, the Ci'own has no (trerogative right to allow 
 an apj)cal : Theberge v. Lanilv ( 187*)), 2 .App. Cas. 102; Kennedy v. Purcell 
 (188H), .V» L. T. 270. 
 
COXSTITUTIOXAI. LAW. 
 
 67 
 
 15. Imposition of Puni.shment for Enforcing Laws within Provincial 
 
 Jurisdiction. 
 
 Encroachment upon 'criminaHaw.' Piiiliann'iit in uutlioriztMl to iiiaki- llm 
 laws i>f iiidci'dun' allcctiiig the iriiiiiiial law which it enacts. Kach of the 
 legislatures is aiithini/ed tn make the laws of proceihue afleetiiig tlie |)ciial 
 laws which thev enact res|iectiv<'lv. I'ojie v. (iritlith (IHT'i), Hi L.U. Jiir. Iti!); 
 •_> Cart. •21)1. ' 
 
 .V sanction a]>|)i'o|)i'iate to crimes maS' he conslitutionallv attached to a pro- 
 vincial law. K. V. VVnson (ISmh), !7 A.H. -i-.M, -.Mo. 
 
 The words Ihe " Criminal Law " in s. !)1 do not mean that the Local Leiiis- 
 latnre had not the jxiwer to legislate so as to punish l>y tine or im))risonmenl 
 with the \iew of enforcing tlie laws. K. v. Hoardman (1H71), 30 U.C.K. .'tXi. 
 
 Hard Labor. " rm|)ris(.inuent " means restraint liy eontiiuMuont in a prison 
 with or without its usual aitcom|)animent "hard lalpor." ]i. v. Hodge (ISS.'i), 
 <l.\pp. Cas. 117. i:W; K. V. I'Vawley (IHS'i), 7 A. K. •J4ti. 
 
 Fine and Imprisonment. Both .node., of punishnient mav lie authori/ed. 
 K\ parte Papiii (IS71l, 1.") L.C. Jnr. XU: (1H7'J), 1(> L.C. Jur. Slit; -J Cart. 
 
 Compounding Offences. I'unishment may he authorized for comixmnding 
 otlences against provincial laws. K. v. Boardman (l>f71), HO U.C.R. .')Xi. 
 
 No punishment imposed. .\ law without a sanction is hnitiini fii/mev. The 
 I'ailiainent of Canada has |)rovi<led that it is ;in off'eni'c punishahh- with one 
 years im|)risonment to disoliey a jirovincial .Act hy wilfully doing any act 
 which it forhids or omitting to do any act whi<;h it reipiires to he done unless 
 some penalty or other mo(le of punishment is expressly provided hy law. 
 Criminal Code. s. l.SS. 
 
 Pardoning power. It wouhl seem that tlie weight of judicial opinion is that 
 the power to remit penalties and of comnniting and remitting sentences im- 
 posed for violation of laws within provincial juiisdiction may he validly dele- 
 gated hv a I'rovincial Legislatinc to the Lieutenant-Covcrnor or otiiei' orticer. 
 Attv. (ien. for Can. v. Attv.-(ien. for Out. (ISi»0). "iO O.B. -J-i-i; 111 A.H. .SI : -j:? 
 S.C'.H. 4.")H. 
 
 Several of the .ludges, howevei-, while holding the .Act in ([uestion constitu- 
 tional relied up<in the provision contained therein that the sanu' should only 
 relate to matters within the j\nisdiction of the Province, and there heing I'o 
 proceeding in dispute which had heeii attempted to he justified under the .Vet 
 it W'as impossihle to <leci<le whether the pardoning power co\ild he exeriMs< d 
 under any power except that expressly oonfei'red ny the Crown. 
 
 Application of penalties. The Legislature nuiy provide that the iienalties or 
 any portion thci'cof may lie paid to any person oi- corporation e.g. the College 
 of I'harmacv. Beiniett v. I'harmaceutical .Vssn. of (^tueliee (1S81 ), I Dorion 
 ;W(); 2 ('art.' •2M\. 
 
 Legislative Assembly. Insidts, assaidts or lihels upon nu-mhers of the legis- 
 laluie may he prohihited and jiunished and an .\ct authorizing the House to 
 impure into and p\niish the otl'ence is iiihn riri -: Kielding v. Thomas (IK(Mi), 
 A.C. tiOO. 
 
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 sidijects enumerated in s. !( 
 chlHH of mutters of a local or private nature comprised 
 of the elaHSUH of subjects nsHigned to the I'rovincial Legis- 
 
 16. All matters of a merely local or private nature in the Province. It will ho 
 
 notice' that the concluding clause of s. Ill provides that matters coniin 
 within any of the ilasses of sirlijects eiurmer'irled rrr s. !(1 siridl rrot he deeinod 
 to come withirr the 
 in the enunreration < 
 latines. 
 
 In Citi/.ens Insurarrcru Co. v. Pai-sorrs (1H81) 7 App. Cus. !Mi at j). 108, it was 
 said hy the Judicial Committee that that jiaragr'aph applied in its gfamnintical 
 const rirction orrly to No. l(i of s. !l'i. In .Vtty. (ien. for' Out. v. Atty.-Oen. for 
 Dominion (18!M)) .A. C. ."{48 at p. H.Vt it is said, "The oliservation was not 
 material to the ipiestiorr arising irr that case and it does not appear to their 
 Lordships to hi- strictly ar^euiiite. It appears to them that the language of the 
 exception in s. !tl was nreant to include and corr-ectly descrihes all the iiiatterH 
 '■nunierntod in the 1(1 heads of s. \t2 as heiirg from ii provirrciiil point of view of 
 a local or private nature."' 
 
68 
 
 COXSTITUTIONAI. LAW. 
 
 The provincial legiMluturea have uiuler tliis clause jurisdiction over all local 
 or ])iivate matters in the |)rovincc not hcfoe enumerated except ( 1 ) those 
 enumerated in s. 01 and (2) sucli mattei-s as are unquestionahly of C'anadian 
 interest and importance. The Dominion Parliament nnist lie strictly confined 
 to sncli matters and oiiglit not to trench ui)on Provincial Legislation with re- 
 spect to any of tlic classes of sul)jects enumerated in s. 92. To attach any 
 other constnrction to the geneial power whicli in supplement of its enumerated 
 jMiwcrs is conferred upon tlie Parliament of Canada hy section i)I w<mhl not 
 iinlv he contrary to t\w intendment of the Act but wouhl practically destroy 
 the autonomy of the Provinces. If it were once conceded tiiat the Parliament 
 of Canada had autlioiity to make laws applfcable to the wliolc Dominion in 
 relatioi to matters wliicli in cacli Province are sulmtanf ially of local or private 
 interest upon the assum])tion that these matters also concern the peace, ordei' 
 and goi«l government of tlie Dominion there is hardly a subject enumerated in 
 s. 92 upon wliicli it might not legislate to the exclusion ot tlie Provincial Legis- 
 latures (1H9()) A. C. ]))). :«)(), '.m. 
 
 A matter cannot logically be liehl to fall within No. Ki and any of tiie 
 enimierated classes of subjects ; No. 1(1 lias the same office wliich the general 
 cnaftment with resjicct to matters concerning the |)eace, order and good gov- 
 ernment of Cana<la so far as supplementary of enumerated subjects fulfils in s. 
 91. It a.ssigns to the Provincial Legislature all matters in a provincial sense, 
 local or private which have been (miitted from the preceding enumeration, and 
 although its terms are wide enough to cover they were obviously not meant to 
 include Provincml Legislation in relation to the classes of subjects already 
 enumerated, (I8n(>) A. ('. 3().".. 
 
 Prohibition. A Provincial Legislature has (in the alisenco of similar Dom- 
 inion Legislation) power to prohibit the retail sale of liijuor ; its manufacture 
 if carried on under such circumstances and conditions as to make its prolii- 
 liition a merely local matter in the Province but it wcnild not have j)ower to 
 prohibit the imiiorlation of such li(juors into the Province, Atty.-(ien. for Out. 
 V. Atty.-(ien. for Dominion (1896) A. C. 348. 
 
 Municipalities may still exercise the powers given by the Temperance Act of 
 lHti4 to prohibit tlie sale of intoxicating liipiors, Noel v. Corpn. of Richmond, 
 1 Dorion S.'W, 2 Cart. 24(i. 
 
 The Ontario Act :19 V. c. 2f) (()), R.S.O. (1877) c 182, ss. 38-42, 41 V. c. 14, 
 providing for officials to enforce the Temjieranee Act of lS<i4 is not ultra riren 
 License ('(mimissioners of Prince Kdward v. C'imntv of Prince Kd ward ( 1879) 
 2(i(ir. 4")2. 
 
 The Provincial Legishiturcs may pass enactments for regulating the closing 
 of saloons, K. V. Hwlge (1883) 9 App. Cas. 117, P«mlin v. Quebec (1884)9 
 S. C. H. 18.-). 
 
 Nuisances. The fact that the Parliament of Canada may enact as part of the 
 criminal law acts for the punishinent of jier.sons guilty of coiiiiuitting nuisances 
 does not prevent a local legislature from authori/.ing municipalities to pass by- 
 laws against nuisaiices hurtful to (mblic iicalth. Kx |(arte Pillow (1883), 27 
 L. C. .fur. 21(i: 3 Cart. 3,". 
 
 Local Taxation. A Provincial Legislature may authori/.u a municipality to 
 laise liy local taxation a subsidy designed to promote the con.struction of u 
 railwav exteiidiiig bevond the i»rovincc but ahead v authorized 1)\' Statute. 
 Dow V. Wack I 1S7.5),'L. K. (i, P. C. 272. 
 
 An Act providing for the relief of a society fiiiancially embarrassed incor- 
 iiorated in the Province, is in respect of a matter clearly private and clearly 
 local and is therefore in the alisence of Dominion Legislation covering the 
 particular .state of fa<'ts within the exclusive competency of a Proviiunal Legis- 
 lature. L'Union St. .Taccjues de Montreal v. Helisle (1874), L. R. ti, P. (;. 31. 
 
 Police Magistrates. The Provincial Legislatures have exclusive power to 
 authorize the appointment of Police Magistrates for the Province or anv [larts 
 thereof. Richardson v. Ran-om (1880), 10. (). R. 387. 
 
 Canada Temperance Act. Provincial Legislatures liavc authoritv to imihh 
 legislation providing for the expenses of the enforcement of a Dominion Aot. 
 License Commissioners of Frontenac v. County of Frontenac (1887), 14 0. R. 
 741. 
 
COKoIITUTIONAL LAW. 
 
 69 
 
 Legislative Assembly. A Provincial LegiRliitui-e may autliori/.e an iiujuirv 
 into and puniHhnient of an interference with the powers confened upon it l\v 
 insult or violence and none the Ichh ho becauHe the interference is of a cliaractcr 
 whicli involves the connnission of a criminal ott'ence or bi'ings the oftender 
 within reach of the criminal law, Fielding v. Thomas (1896), A. C. (iOO, l)ut 
 such provisions will not oust the jurisdiction of the Courts oi- prevent the 
 punishment of the offence under the criminal law. R. v. Hunting (188.")). 7. 
 (>. R. .V24. 
 
 Queen's Counsel. Tlie appointment of (^ueen"s Counsel for I'rovincial (,'onrts 
 if not within the preceding clauses migitt be justified under No. IB. Per 
 Burton, .1. A., Re (^leen's Counsel (189(5), 2S A. R. 804. 
 
 DOMINION RAILWAYS. 
 
 Under s. 92 (10) such works as although wholly sitimte witiiin any province 
 are before or after their execution declared by the Parliament of Canada to l)c 
 for the general advantage of Canada or for tlie advantage of two or more of the 
 1)1 ivinces are excepted from piovincial legislative jurisdiction. 
 
 By the " Railway Ait ' (51 V. <•. 2!)), ss. 'MHi, SO", the Dominion Parliament 
 (ieclarc<l the Intercolonial Railway, the Orand Trunk Railway, the North 
 Shore Railway, the Northern Railway, tlie Hamilton and Noith Western Rail- 
 way, the Cana<la Southern Railway, the (treat Western Railway, the Credit 
 Valley Railway, the Ontario and (,juebec Railway and the Canadian Pacific 
 Railway to l)c works for tlie general advantage of Canada, and eadi and every 
 branch line or railway tlien or thereaftci' coiniecting with or crossing the .said 
 lines of railway or any of them is a work for the general advantage of Canada, 
 and every such railway an<l branch line is subject to thi: legislative authority 
 of the Parliament of Canada. SS. 3 and 4 of the .same Act enact that tlic 
 provisions of the Act extend to all ])er.sons, com])anies and lailways within the 
 legislative authority of the Parliament of Canada, and as to matters within 
 its legislative authority, and es))ecially as to railway ciossings and junctions, 
 otl'enccs and penalties and statistics to all |)crsoTiH wlietlier otherwi.se within 
 llicir legislative authority or not. The provisions arc iiifru riirs of ihc Do- 
 minion Parliament; (irand Trunk Ry. Co. v. Hamilton Radial Klectric Ry. 
 Co. (1897), 29 (). R. 141!, and they removi? from the ellect of provincial legisla- 
 tion, as to tlie construction or arrangement of tlie railway track itself, every 
 railway iianuMl oiwhicii ciosses tliose named. Wasliington v. (Jrand Trunk 
 Ry. Co. (1897), 24 A. R. 18;{. The provincial legislation is not ii/h<i rins l)nt 
 inapplicable by the eticct of the Dominion legislation giving to a foiiner |)IT)- 
 viiuaal work the Slit/ii.ii>{ a Dominion work ; Clegg v. (irand Trunk R\. Co. 
 (188(i), lOO. R. 708: Rcdtield v. Corporation of WicUliam (1888). I.S' App. 
 Cas. 4()7. Accordingly ))rovincial .Acts witli reference to llie packing of frogs. 
 Clegg V. (irand Trunk 'l?y. Co. (I88(i|, lOO. R. 708; or as to the expropriation of 
 lands ; re St. Catherines and Niagaia Central Railway Company and Hail)eau 
 (I88(i), lot). R. .W.S, or as to tiie rights of jiarties under an arlritration on a ilaim 
 for damages for lowering tlie grade of a street ; re Kernel- and Toionto, Hamilton 
 and HnlValo Ry. Co. (189()), 28(). R. 14. or as to Mccliani.'s Lien. Larseii v. 
 Nelson and Port Sheppard Ry. Co. (189.-)) ; 4 B. C. ],'>]. or as to the crossing 
 by an electric railway of a Dominion Steam Railwav at grade; (irand Trunk 
 Railway Co. v. Hamilton Radial Klectric Railway Co. (1897), 29 O.R. U.S, are 
 inapplicable to sucli a railway although it may have been originally incorpor- 
 ated by a provincial legislature. 
 
 On the other hand .such companies are in common with all other |)eiHons and 
 corporations subject to ])i<)vincial legislation concerning other matters than 
 tliose peculiar to a railway, e.g. The Workmen's Compensation Act ; Canada 
 Southern Ry. Co. v. .bicks'cn (1890). 1" S. C. R. .'tUi, and Acts respecting llio 
 pidcei lure for rccoverv of debts bv sale of tlie debtois i)ropertv; Baic dcs 
 Clmleurs Ry. Co. v.'Nant.'l (bsoii) (^. ;.. R., o (^». B. ((.■), are applicable to 
 Dominion Railways. 
 
 EDUCATION DENOMINATIONAL SCHOOLS, Sec. 93. 
 
 In New Brunswick at the Union the law with ri'spcct to sihools wiis governed 
 by the Parish ,Si'liool Act, under which no class of jiersons had any legal right 
 or privilege with respect to Denominational Schools, and the .\cl'of the iiro- 
 viiicial legislature, 34 \'. c\ 21 (N. B.) providing that the schools conducted 
 thereunder should be non-seetarian was therefore hehl to be valid. K\ iiaite 
 Renaud(1873, 1 Pngs. 273 ; 2Cait.44o; .\laher v. Portland, Wheeler's Con- 
 federation Law in (,'anada, p. :V.\H. 
 
 *2 
 
 1^ 
 
 
 r 
 
 1 
 
 i 
 
 I. 
 
"^MM 
 
 70 
 
 CONSTITl'TIOXAI. LAW. 
 
 Till' proviHions of the ('iinstitutiiiiial Ait i>f Maiiitolia (S3 V. c. 3) as to 
 I'tliuiitiim me substantially the same as those of s. it3 of the 1». N. A. Aet, the 
 otii\ iliU'eienie lieiii),' tliattlie rights and privileges wliicli classes of persoiiH 
 liail liy law " oi- praitiie ■■ were protected. At the time of the Union with 
 Manitoha denominatinnal schools su|)porte(l li.v volinitar> contrilmtions 
 existed. In IS71 a system of denimiinational ediiiation was estalilished, the 
 schools lieing suppoTted hy local taxation. In 18!Mt the denonunational system 
 was sweiit away and the piililic .schools wore made entirely non-sectarian. The 
 City of \Vinnii")eg, under the Act of \HW), |)assed l>y-laws foi levying taxes to 
 sujiport its schools. The Human Catholics of Manitoba objected to being 
 taxed for schools of which they could not in conscience avail them.selves and a 
 motion was made to ipiash the bylaws. Tlie Courts of Manitoba sustained 
 the bv-laws. The Supreme Court of Canada declared them invalid. Harretl 
 v. \Viuiiipeg (lf<!ll). lit S. C. R. 374. This decision was revei-.sed by the 
 .ludicial Committee of the I'rivy Council upon the giound that the Act of 1890 
 did not prejudicially atl'ect any light or jn-ivilege of the Roman Catholics 
 which existed at thi' time of the Union. It was (jointed out that evei-y religi- 
 ous Ipody notwithstanding the Act. was free to establish schools throughout 
 the province : to maintain them by school fees or voluntaiy sub.scri|)tions ; 
 and to conduct them according to their own religious tenents without molesta- 
 tion or interference. I ISil2). A.('. 44"). 
 
 Appeal to Governor-in-Councll. The Roman Cat holies of Manitoba aftei- the 
 decision in Rarrett v. Winnipeg a))pealed to the (iovernor-in-Council, under s. 
 il.'i (3) and the similar iHovision in the Manitoba Constitutional Aet, for a 
 remedial order, and a reference was made by the ( Jovernor-in-t.'ouncil, undei- 
 iii it .V) V. c. "2."), to the Supreme Couit of Canada for advice as to whether an 
 apjieal would lie against the Manitoba School Act of 1890 to the (Jovernor-in- 
 Council. The Sujircme Court, by a majority, decided that an appeal would 
 not lie: that Manitoba, having establislied sepaiate schools bv its own Act of 
 1871. had the light to repeal that Act. Re Manitoba Statutes (1893) 22, 
 S.C.R. ">77 .All a)iiieal wasthcn niadeto the .Fudicial Committee of the Privy 
 Council where the judgment was re\ eiscil. It was held that ihe appeal would 
 lie to the (lovcriiorin-Council ; that the Roman Catholics had aciiuired by the 
 legislatiiai of .Manitol)a the right to control denominational schools, and to 
 liavc them maintained out of the general taxation of the province, and that 
 such rights were atlectcd by the Act of 189(1, and that tlii't loveiiun-in-Council 
 had ])ower to make remedial orders. ltro|)liv v. Attoriiev-<!en. of Manitolxv 
 (189.")). A.C. 2(t2. 
 
 The (iovernor-in-Council then made an order re(|uiringtlie i'rovince of Mani- 
 toba substantially to re-enact the laws in force iirior to 189(1. Tnis order was 
 not obeyed. A |{ill was introduced into the Dominion I'arliament jiroviding 
 a denominational school .system for Manitoba, but it ilid not bci'ome law. The 
 Manitoba School Act of 189(1 therefore remains the law of that province. 
 
 Provincial legislatures have |)ower to legislate respecting denominational 
 schools, and their legislation will be valid so long as it does not jirejudieially 
 att'ect any right or privilege |)ossessed by law at the time of the Union — e.r)., 
 changes may lie made in the mode of electing Sejiarato School Hoards. Helle- 
 ville Sihool Trustees v. (Iraingcr (1S7H), 2") Or. .")79. 
 
 Summary.- (1) Legislation prejudicially atlecting legal rights of any ela.ss to 
 deiioiiiinational schools existing at the date of the Union is ii//ra riris. No 
 ajipeal is necessary as to it. 
 
 (2) Rights conferred by ixtst-union legislation may be taken away by the 
 province enacting tlieiu, subject to an ap|)eal to the (iovernor-in-Council. 
 
 (3) On an aiiiieal a remedial order may be made reijuiring the provincial 
 authority, /.(., the Legislature to eiiact legislation restoring either [lartly or in 
 entirely the rights taken away. 
 
 (4) If such legislation is not euaeted the Dominion I'arliament will then have 
 nuthorily to legislate. 
 
 Section 109. 
 
 Royalties. Although by s. 102 all duties and revenues over whicli the pro- 
 vinces before and at the Union had iiower of nppro])riation are declared to 
 bidong to tlie Dominion, except those by the Act reserved to the provinces yet 
 by s. 109, all lands, mines, minerals and royalties are reserved to the |irovincus, 
 " Kscheats " are "loyalties" within the lueaning of s. 109, and, therefore, 
 lands escheated to llie Crown are the property of the province where they are 
 situate. Attv.-tieu. for Out. v. Mercer (188.3). 8 App. Cas. 76" ; see. o, S.C.R. 
 
COXSTITUTIONAL I,AW. 
 
 DECISION OF CONSTITUTIONAL QUESTIONS. 
 
 liv.VJ V. o. 13(0), R.S.O. (18!»T), c S4. pioviHioii wii« madu for the lefiT- 
 fiuc tiy llie Lieutenant (ioveriiiir in ('cunicil (if any matter which he tliimght 
 tit to refer to the High Couit, or a Divisional Court or tlie Couvt of Ai)peal, 
 and li\ 54 k .");■) V. c. 'J') (I)) the ( ioveinor-in-C'ouncil was given sul)stantially 
 similai- jiower to refer matters to the Sui)ieme (."(aut. 
 
 I'lidei' theHe sections iiuportant co?istitutional ipicstions liave been ileter- 
 niiiicd, the decisions in which are note<l aliovc. 
 
 Notice to Attomey-Oeneral. Ni, Act can he declared hcxond the constitu- 
 tional competence eithcj' of the dominion Parliament or tlie Ontario Legishi- 
 tme until after notice thereof has lieen served on tlie Minister of Justice and 
 tlie Attorney-! ieneial for Ontario respectively six days hefore the argument, 
 and they then have the right to lie iieard. Judicature Act, s. (10 (Chapter ")!. 
 /msl ). 
 
 A ipustion as to the ajiplicaliility of tiie Ontario Insuance Act as to unifirm 
 conditions in Kirc Insujance I'olieies to a Company incor])orated liv a Dominion 
 Act wliich contained a s|iccial provision with reference to the validity of 
 I'olieies was held not to lie of a constitutional cliaiaeter so as to require notice. 
 Coring v. London .\!\itnal Ins. Co. (1885), II O.K. 8'2. 
 
 Precious metals. The prerogative riglit of tlie Crown to gold and silver found 
 in mines will not pass uiwlcr a grant of land from the Crown unless hy apt and 
 precise words tlie intention of the Crown lie expressed that it shall pass. 
 Wooley V. Atty.-Cen. of \'ict<iria (1877), '2 App. Cas. Ki.S. 
 
 A conveyance hy tlie I'rovince of liiitish Columhia of puhlic lands does not 
 imply any transfer of the precious metals. Atty.-tien. of Hritish Columhia 
 V. .Atty.-tien. of Canada (188(1), 14 A. (J. '2i),'>; and the words mines, minerals 
 anil suhstances whatsoever there\i)ion, thei'con and thereunder, are insutlicient 
 to transfer tlie precious metals. Ks(|iiim,ilt Hiiilwav Co. v. IJainliiidge (18!M1), 
 A.C. .">lil. 
 
 English Acta. 'I'lic ICnglish IJanUruptcy Act LSfii) is effective to vest in the 
 trustee in Bankruptcy the hankrupfs title to land sit\iate in anv part of Her 
 Majesty's Dominions. Callender v. Lagos ((.'olonial Secretary) (18!) I ), A.(.'. 4(i0. 
 
 Provincial Courts ari' hound to take notice tliat lands in this I'rovince held 
 in trust hy a person of unsound mind may under II (ieo. IV. and I Wm. IV., 
 c. tiO, he convevcd hv a committee appointed hv tlie Knglish Courts. Thoiiip- 
 Koii V. «cnnett'(1872), •2-_>C.l'. 'MX 
 
 The Knglish Companies' Act of 1 8(i2 does not extend to Canada. Allan \'. 
 Hans(m (1890), 18 S.C.H. ()()7. 
 
 Merchants Shipping Act. 1894. The tiisl jiarl of the .Mercliant Shipping Act 
 I.S1I4. ."17, .")8 Vic. c. (MMlmii.); see Dom. Statutes 18!t.'), ])\). l-:i7'2, applies to 
 the wholeof Her Majesty's Dominions, see s. ill. The provisions of part - may 
 he ado|ited hy the Legislature of a Ihitish I'o.s.se.ssion, .see section 9XA. Cer- 
 tain jiarts <if part ."1 as regards emigrant ships are also ai)i)lieahle hy the (lover- 
 nor, see sections .S()4-3(i(). I'ait 8 icspecting lialiility of ship owners extends 
 to the whole of Her Majesty's Doininious; see .section .">()!); see (ieorgi.in Hay 
 Transportation Co. v Kisliei' (18811), r, A.K. .'WM. Part LI extends to t' .vh-jl'e 
 of Her .Majesty's Dominions; see section 70'2. 
 
 Uy si'ctions 7:l.'> and I'M't ('olonial Legislatures mav repeal wholly or '. part 
 any provisions in the .Vet except those of the tliiril part, relating vO emi ant 
 sliips, subject to ajiproval of Her .Majesty, and may regulate tho "Ousti^'g 
 trade: see (Jeorgian H.iv Transportation Co. v. Kisher, ."i A.H. 38.S; .see R.S.(,. 
 c. 74. s. 131. 
 
 Prerogative rights of Dominion. The Dominion (lovernment has the sail e 
 priority over creditors of cipial degree as the Provinces ; Reg. v. Bank of 
 Nova Sootia (188.")) It S. C. R., I : cxcejit in (v>uehcc where the j)rei'ogati>-c is 
 limited to the case of the icimmon debtor being an otiicer lialile to account to 
 the Crown for ]iublic monev collected or held by him. Kxchange Hank v. Reg. 
 (I.SS(ii II App. Cas. l.';7. 
 
 Dominion elections. The Provincial Courts have no jurisdiction to restrain 
 any revising otiicer. Judge or rctiu'iiing otiicer from ))erfoiTning any duty 
 under any statute of the l)oiiiinion relating to elections to the Domin.on Par- 
 liament; He Centre Wellington (1879) 44 U.C.R. l3-i ; Re North Perth, Hes- 
 siri V. Lloyd (1891) 21 O. R. .'.38 ; .McLcod v. Noble (1S97) '24 A. R. 459, s. e. 
 28 O. R. ;V28. 
 
 71 
 
 O 
 
 ■10 
 
 c 
 2 
 
 r 
 
 1 
 
 i 
 
*lltl 
 
 72 
 
 COXSTirrTIONAL KAW. 
 
 'kn 
 
 Sec 129. Repeal of former laws. 'I'lif Icgislaiivr pDWors coiifcired by s. \-2U 
 til i«|K'al 111- ahir an uliI law nf the I'ailinnieiit of llie PiDviiue of Canada are 
 (•(K'Xti'iiHivi' witli t he jK)Wi'r.>< nf iliiect li'gi.slatioii witli wliirli the Dominion 
 I'Hi'Iiaiiient anil I'lDvimial Lii'i.slatnieK n'speetivoly aie invostcd hy tho other 
 sei'tioiis of the Act : Dnliie v. Teinpiiralilii's IJoard (1HH2) 7 Aj))). ('as. i;}6, 147; 
 Atty.Ocn. fur Ontario v. Atty.-(icn. for Dominion (lS!Mi) A. C. ."US, .'WB. 
 
 A <^ui'l)cc Statute repealinj; an Act of the I'loviiico of Canada tlie provisions 
 of whicli apphed lioth to (^)ueliec and Ontario is ii/h-ii ririx : Dol)ie v. Tompor- 
 ahtics lioard (IKS2| 7 A|)p. ('as. l.'iti. Tiie 'renij)erance Act, 18(>4, api)lied 
 only 111 I'ppcr Canada. The Doniiiiion Pailiainent therefore had no power to 
 ie))'eal it. .\tty. Cen. fm- Ont. v. Atty.-(ien. for Dominion (ISiMi) A. C. 3-lS. 
 
 Crown's relations to Provinces. By s. !) the K.\ecutive (ioverninent of the 
 Dominion is declared to cuntinnc and 1m; \ested in the C^ueen. 
 
 .\ Lientenant-(ioverni>r ulien ap))ointod is as nnich the repre.sentativc of 
 Her Majesty for all imiposes of jjrovincial govermnent as the ( iovernor-ficneral 
 himself is for all purpo.ses of Dominion (ioverinnent. The ohjeet of the Act 
 was neither to weld the provinces into one nor to snliordinate provineial gov- 
 ernments to a central authority, hut to create a federal government in which 
 they shoidd all lie re])ie.sented, entiustcil with the exilusive administration of 
 affairs in which they had a common interest, each province retaining its inde- 
 pendence and autonomy. Ijipiidators of Maritime Hank v. Receiver-General 
 of New Brunswii k (ls'll-2) A. C. 4,'<7. 
 
 The relation between the Crown and the provinces is the same as that which 
 subsists between the Crown and the Dominion in res|)ect of the powers, execu- 
 tive and legislative, ])ulilic property and revemies, as are vested in them 
 respectively, and therefore a |)rovineial govermnent is entitled to priority over 
 other creditors of eipial degree; Liquidators of Maritime Hank v. Receiver- 
 (ieneral of New liiimswiek (ISil-J) A. C. 437. 
 
 The jirerogative of the (_'rown to ])nrdon extends to the renii.ssion of sen- 
 teiues which are merely of a punitive character inflicted for contempt of 
 Court : He Bahama Islands (Special Reference from) (18!»3) A. C. 138 ; .see Re 
 Pardoning power Atty.-(ien. for Can. v. Atty.-(ien. for Ont. (1890)20 0. R. 
 '2±i, li) A. H. 31, •_'3 S. C. R. 4.-)8. 
 
 Debts and Liabilities. By Sec. 1 1 1 Canada assinned the debts and liabiliticH 
 of each l'rci\ incc. 
 
 In 18.V) the (uovince of (.'anada became lial»le to the Ojibeway Indians for 
 certain aniniities in consideration of the surrender of their title to lands now 
 in Ontario. It was provide ' in the treaty that if the proceeds of the lan<l 
 warranted the annuities shotdd be inereased. Circnmstanees having arisen to 
 justify the Indians claiming the increased annuities, the ([uestion arose by 
 whom the ))ayment thereof should be borne. The Dominion and the Province 
 of ((tuebec claimed that the lands were .subject to a trust within the meaning 
 of s. 10!) for their ])ayment and that the lands having become the property of 
 Ontario that Province was bound to a.ssume the liability. This contention was 
 sustained by the .Vibitrators but reversed by the Hu))ieme Court. On .Ai)|)eal 
 to the Judicial Committee of the Privv ('ouneil the judgnuMit of the Supreme 
 Court was sustained. It was clear tiiat Canada was liable for the original 
 annuities and it did not appear that the augmentations were to be derived 
 from a different source. Their l,ordshi])s liad no ditfieully in coming to the 
 conclusion that \nider the treaties the Indians obtained no right to their anini- 
 ities whether original or augmented beyond a ])roinise and agreement ; that the 
 Indians obtained no right which gave them any interest in the territory which 
 they surrendered othcr'than that of the Province ; and that no duty was im- 
 posed upon the Province whether in the nature of a trust, obligation or other- 
 wise to aj)plv the revenue derived from the surrendered lands in pavment of 
 the annuities. Ontario v. Dominion (18!),"i) '_'.-) S.C.H. 434, .s.e. (1897) A. ( '. 1!K). 
 
 Subseipieiitly the (|uestioii arose whether the liability was one compriseil in 
 the debt of the Provinces in so far as it exceeded the amount specified in s. 
 Il-i as amended by 31) v. e. .'JO. On the 7lh .Taiiuary 1808, the Arbitrators 
 decided the "liability'" was a "debt" to be borne ei|ually by the Provinces 
 of Ontario and (iJuebec under that section. 
 
 Interest upon the excess of the debt of the Provinces should not be deducted 
 until six months from the union, interest never being pavable before it accrues. 
 Canada v. Ontario and (Quebec (1804) 24 IS.C.R. 408. 
 
PART IIL 
 
 Evidence^ 
 
 3? 
 I 
 
 ■si 
 
 •2 
 
 r 
 
 1 
 
 c 
 
 [73] 
 
c 
 
 Ai 
 A; 
 
 Ej 
 
 St, 
 
 t-n! 
 
 c. ( 
 
 by 
 
 ''■hi 
 
CHAPTER 73. 
 
 An Act respecting Witnesses and Evidence. 
 
 Shokt title, 8. 1. 
 comi'ktency of wit.nk.ssks : 
 
 (Ji'iine or interest, ss. 2, 3. 
 
 Husbanl and wife, sa. 4, 7, 8, 9. 
 
 Evidence of parties, ss. 4, 0, 7. 
 
 Criminating (luestions, s. 5. 
 
 In prosecutions under Ontario 
 Acts, etc., 8. !). 
 
 CoRROBOKATIVE EVIIIKNCK : 
 
 In actions for breach of promise, 
 
 8. 6. 
 In cases against representatives of 
 
 deceased persons, s. 10. 
 In cases against lunatics, s. 11. 
 Affikmations, ss. 12-16. 
 Attexdance of witnesses : 
 A party to an action may summon 
 opposite party as a witness, 
 
 8.16. 
 
 Subpojnas to the province of Que- 
 bec. C. S. C. c. 70, ss. 4-13, 
 1>. 714. 
 Examination of witnesses : 
 
 Proof of previous contradictory 
 statements in writing s. 17. 
 
 Proof of previous contradictory 
 oral statements, s. 18. 
 
 Proof of previous conviction, a. 19. 
 
 Discrediting aparty's own witness, 
 s. 20. 
 Statutes, poblic documents, etc., 
 AS evidence : 
 
 Statutes, proclamations, etc., 21- 
 24. 
 
 Ofticial documents, ss. 25-29. 
 
 Signatures of Judges, etc. , s. 30. 
 
 Foreign Judgments, 8. 31. 
 
 Notarial documents made in Que- 
 bec, ss. 32, 33. 
 
 Protests of Bills and Notes, 
 ss. 34. 36. 
 
 SheriOTs Conveyance on Division 
 Court judgment, b. 3(i. 
 
 Affidavits made out of Ontario, 
 88. 37, 38. 
 
 Formal defects in Affidavits, s. 39. 
 
 Depositions, 8. 40. 
 
 Wills, ss. 41-44. 
 
 Registered instruments, ss. 46-49. 
 
 Instruments in LandTiilesOffices, 
 s. 50. 
 
 Other written instruments, s. 51. 
 
 Compelling attendance of wit- 
 nesses for purpose of foreign 
 commission, s. 52. 
 
 Evidence when person resident 
 IN Great Britain is a pabty. 
 s. 53. 
 
 When proof by attesting wit- 
 nesses UNNECESSARY, 8. 54. 
 
 Comparison of handwriting, s. 55. 
 Impounding in.struments offered 
 in evidence, 8. 50. 
 
 Powers conferred by Act are in 
 
 ADDITION to any OTHER EXIST- 
 ING POWERS, 8. 67. 
 
 HER M AJ EST Y, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows :— 
 
 I. This Act may be cited as " The Evidence Act." R. S. O., 1887, short title 
 c. 61, 8. 1. 
 
 COMPETENCY OF WITNESSES. 
 
 I 
 
 
 r 
 
 r 
 
 i 
 
 'I. No person offered as a witness shall hereafter be excluded witne-wes not 
 
 3ap8 
 
 [76] 
 
 by reason of any alleged incapacity from crime or interest *?f''f.j"^''''* 
 
 crune or m- 
 terest. 
 
76 
 
 Sec. 7. 
 
 WITNESSES AND EVIDENCE. 
 
 Chap. 73. 
 
 from givini,' evidence, according,' to the practice of the Court, on 
 the trial of any action, issue, matter or proceeding, in any 
 Court of Ontario, or before any person having, by law or by 
 consent of parties, authority to hear, receive and examine 
 evidence. R. S. 0. 1H«7. c. 01, s. 2. 
 
 Huch per»..n» II. Every person so oti'ered shall be admitted to give evidence 
 a-lmitted to notwithstaniHng that such person has an interest in the matter 
 KiveeTKlence. .^^ ,j„^,^t,i„„ ,„. i,i the event of the trial of any issue, matter, 
 question or in(|uiry, or of tlie action or proceeding in which he 
 is ottered as a witness, and notwithstanding that such person 
 has been previously convicted of any crime or offence. R. S. O. 
 1887, c. 61, s. :}. 
 
 Evidence of 4. On the trial of any action, issue, matter or pi'o- 
 parties. ceeding in any Court in this Province, or l)efore any person 
 
 having, by law or by consent of parties, authority to hear, 
 receive and examine evidence, the parties to the proceedings, 
 and the persons in whose behalf the action or other pro- 
 ceeding, is brought or instituted, or opposed, or defended, 
 shall, except as hereinafter excepted, be competent and compel- 
 lable to give evidence, according to the practice of the Court, 
 on behalf of themselves or of eitlier or any of the parties to 
 the action or proceeding : and the husbands and wives of such 
 Evi.lenceof parties and perscms shall, except as hereinafter excepted, be 
 husband and competent and compellable to give evidence, according to the 
 practice of the Court, on behalf of either or any of the parties 
 to the action or proceeding. R. S. 0. 1887, c. Gl, s. 4. 
 
 1 
 « 
 1 
 
 3 
 
 i 
 
 ^ Aii\ 
 
 liuestions 
 tending to 
 criminate 
 witnesses. 
 
 Evidence in 
 actions for 
 breach of pro- 
 mise. 
 
 ."». Snliject to .section 9 of this Act, nothing herein con- 
 tained shall render any person compellable to answer any 
 ([ue.stion tending to subject him to criminal proceedings or to 
 subject him to prosecution for any penalty. 50 V. c. 18, s. 6. 
 
 0. The parties to an action for breach of promise of mar- 
 riage sliall be competent to give evidence in the acticm : Pro- 
 vided always that no plaintift" in an action for breach of 
 promise of marriage shall recover a verdict unless his or her 
 testimony is corroborated by some other mateiial evidence in 
 support of the promise. R. S. O. 1887, c. 61, s. G. 
 
 Evidence in ^- The parties to a proceeding instituted in consequence 
 
 proceedings in of adultery, and the husbands and wives of such parties, shall 
 
 adultery,"*"'" be Competent to give evidence in the proceeding : Provided 
 
 that in such case the husband or wife, if competent only 
 
 under and by virtue of this Act, .shall not be liable to be 
 
 asked or bound to answer any (juestion tending to shew that 
 
 he or she has been guilty of adultery, unless he or she shall 
 
 have already given evidence in the same proceeding in dis- 
 
 " R. S. 0. 1887, c. 61, s. 7. 
 
 proof of his or her alleged adultery. 
 
Chap. 73. 
 
 \VITNE.SSES AND EVIDENCE. 
 
 Sec. 8. 
 
 8. No hu-sbaiul shall be compellable to disclose any coininu- Coimnunic*- 
 nication made by his wife durinj^ the marriage, and nt) wife du"in2\'fa"r- 
 .shall l)e compellable to disclose any coninuuucation made to riage. 
 
 her by her husband during the marriage. R. S. O. 1H.S7, c. 61, 
 s. .S. 
 
 9. On the trial of any proceeding, matter or (juestion, under Evidence of 
 any Act of the Legislature of Ontario, or on the trial of any |i"ve*and'^ 
 such proceeding, matter or question, Itefore any Justice of the husband*. 
 Peace, Mayor or Police Magistrate, in any matter cognizable by 
 
 such Justice, Mayor, or Police Magistrate, the party opposing 
 or defending, or the wife or husband of the person opposing 
 or defending shall be competent and compellable to give evir 
 dence therein. .")o V. c. 14, s. 1. 
 
 10. In anj' action or proceeding by or against the heirs, 
 executors, administrators, or assigns of a deceased person, an 
 opposite or interested party to the action shall not obtain 
 a verdict, judgment, or deci.sion therein, on his own evidence, 
 in respect of any matter occurring before the death .if the 
 deceased person, unless such evidence is corroborated by 
 some other material evidence. R. S. O. 1887, c. 61, s. 10. 
 
 Inactionsbyiir 
 against repre- 
 sentativeH of a 
 deceased 
 (lerHon, the 
 evidence of the 
 opposite party 
 must be cor- 
 roborated. 
 
 tion. 
 
 1 1 . In any action or proceeding by or against a person found Inactionsbyor 
 by imjuisition to be of unsound mind, or being an inmate of a ^""etc^evi- 
 lunatic asylum, an opposite or interested party shall not obtain dence of oppo- 
 a verdict, judgment, or decision therein, on his own evidence, corroborated, 
 unless such evidence is corroborated bv some other material 
 evidence. R. S. O. 1887, c. Gl, s. 11. 
 
 AFFIRMATIONS. 
 
 I'i. In any case in which an oath, declaration or affir- Quaker, 
 mation is required by law, or upon any lawful occasion what- Tunker8,*^etc., 
 ever on which the oath of any person is by law admissible, a permitted to 
 Quaker, Mennonist or Tunker,or a member of the church known ,*"* " **"■''"*" 
 as the " Unitas Fratrum," or the United Brethren, sometimes 
 called the Moravian Church, having first made the following 
 declaration or affirmation, viz. : 
 
 " I, A. B., do solemnly, sincerely and truly declare and affirm that I am 
 one of the Society called Quakers, Mennonists, Tunkers or Unitas Fratrum, 
 or Moravians" (as the case may be) ; 
 
 may make his affirmation or declaration in the form following, 
 that is to say : 
 
 " I, A. B., do solemnly, sincerely and truly afhrm and declare,'' etc. ; 
 
 and such affirmation or declai'ation shall have the same force 
 and effect to all intents and purposes, in all Courts and all other 
 places, as an oath taken in the usual form. R. S. O. 1887 
 c. 61, s. 12. 
 
 O 
 
 I 
 
 i 
 
 I. 
 
■m 
 
 78 
 
 Sec. 16. 
 
 WITNESSES AND EVIDENCE. 
 
 Chap. 73. 
 
 Certain jier- I ». If a person calleil as a witness, or required or lesirino- 
 
 K„n«mayi'>.'vke ^f^ uuvke an affidavit or deposition in a proceeding, or on 
 
 SraS"' an occasion whereon or toucliing a matter respecting wliich 
 
 inBtead i.f m^ oatli is required, wliether on taking office or otherwise, 
 
 ""^h. refuses or is unwilHng, from alleged conscientious motives, to 
 
 be sworn, tlie Court or Judge, or other presiding officer, or 
 
 person (lualitiod to take affidavits or depositions, may permit 
 
 such person, instead of being sworn, to make ins or her solemn 
 
 affirmation or declaration in the words following, viz. : 
 
 " I. .1. B., do solemnly, sincerely and tvuly attinu and declare that the 
 taking of an oath is, according to my religious belief, unlawful ; and I do 
 also solemnly, sincerely and truly aftirm and declare," etc. : 
 
 which solcnni affirmation and declaration shall be of the same 
 force and etiect as if sucii pers(ju had taken an oath in the 
 usual form. R. S. O. 1887, c. 61, s. 13. 
 
 Persons who 14. — (I) If in a Court of ju.stice, a person called to give 
 object or are evidence objects to take an oath, or is objected to as incom- 
 t"T»kean''oath petent to take an oath, such person shall, if the presiding Judge 
 to fallowed is satisfied that the taking of an oath would have no binding 
 declaration, effect Oil his conscience, make the following promise, affirma- 
 tion, and declaration : 
 
 " I solemnly promise, aftirm, and declare that the evidence given by me 
 to the court shall be the truth, the whole truth, and nothing but the 
 truth." 
 
 and upon the person making such solenni affirmation and 
 declaration, liis evidence shall be taken in the .said pi'oceeding. 
 
 (2) The words " Court of justice " and the words " presiding 
 Judge" in this section shall be deemed to include any person 
 having by law authoritA' to administer an oath for the takiiiy' 
 of evidence. R. S. 0. 18^7, c. 61, s. 14. 
 
 Interpreta- 
 tion. 
 
 PersonH autho- 
 rized to ad- 
 minister oath 
 may adminis- 
 terjifflniiation, 
 
 15. Every person authorized or required to administer an 
 oath for any purpose, may adnunister any affirmation or 
 declaration aforesaid. R. S. O. 1887, c. Gl, s. 15. 
 
 SUBP(EN.\S. 
 
 A iiarty to any 
 action may 
 be sunniioned 
 as a witness by 
 tho oppogite 
 party, and 
 confevi.ieii'es 
 of non-attend- 
 ance. 
 
 10. Where a party in an action desires to call the opposite 
 party as a witness at the trial, he .shall either subpoena such 
 party or give to him or his .solicitor at least eight days' notice 
 of the intention to examine him as a witness in the cause, and 
 if such party does not attend on the notice or subpoena, his non- 
 attendance shall be taken as an admission prit confenso against 
 him in the action, unless (jtherwi.si^ ordered by the Judge and a 
 general finding or judgment may be b.ad against tlie party 
 thereon or the plaintiff may be non-.suited, or the proceedings in 
 the action nuiy be postponed by the Judge, on such terms as he 
 sees fit to impose R. S. 0. 1887, c. 01, s. 16. 
 
mm 
 
 Cliap. 73. 
 
 WITNESSES AND EVIDENCE. 
 
 79 
 
 ISSUE OF SUBPffiXAS INTO ANY PART OF ONTARIO OR QUEBEC. 
 
 Courts may is- 
 sue Subpll'llilH 
 
 to any vart of 
 Canada. 
 
 Servico tlicieof 
 in any jmrt of 
 Canada to be 
 good. 
 
 When not to 
 be isKUed. 
 
 Writs to be 
 
 specially 
 
 noted. 
 
 Consequences 
 of diso- 
 bedience. 
 
 [Sediotis 4-11 and 18 of G. S. C. c. 79 are not conmlidaied in 
 the Revised Statutes of Canada and tire as folloics .] 
 
 4. If in any action or suit depending in any of Her Majesty's Superior 
 Courts of Law or Equity in Canada, it appears to the Court, or when not 
 sitting, it a])pear8 to any .Judge of the Court, that it is proper to compel 
 the personal attendance at any trial, or eminete or examination of witnesses, 
 of any person who may not be within the jurisdiction of the Court in which 
 the action or suit is pending, the Court or .Judge, in their or his discretion, 
 nmy order that a writ called a writ of .■iuhpnna nd iedijiaimhim or of suhixenii 
 ihii-f^ firitm shall issue in special form, commanding such person to attend 
 lis a witness at such trial or nuiuite or examination of witnesses wherever 
 he may be in Canada. 
 
 5. The service of any such writ or process in any part of Canada shall 
 be as valid and effectual, to all intents and purposes, as if the same had 
 been served within the jurisdiction of the Court from which it has issued, 
 according to the practice of such Court. 
 
 I). No such writ shall be issued in any case in which an action is pend- 
 ing for the same cause of action, in that section of the Province, whether 
 Upper or Lower Canada respectively, within which such witness or wit- 
 nesses may reside. 
 
 7. Every such writ shall have at the foot, or in the margin thereof, a 
 statement or notice that the same is issued by the special order of the 
 Court or .Judge making such order and no such writ shall issue without 
 audi special order. 
 
 8. In case any person so served does not appear according to the exi- 
 gency of such writ or process, the Court out of which the same issued 
 may, u))on proof made of the service thereof, and of sucli default, to the 
 satisfaction of such Court, transmit a certificate of such default, under the 
 seal of the same Court, to any of Her Majesty's Superior Courts of Law 
 or E(|uity in that p.art of Canada in which the person so serveil may re- 
 side, being out of the jurisdiction of the Court transmitting such oertiti- 
 cate, and the Court to which such certificate is sent, shall thereupon pro- 
 ceed against and punish such person so having made default, in like man- 
 ner as they might have done if such person liad neglected or refused to 
 appear to a writ of subpoena or other similar process issued out of such last 
 mentioned Court, 
 
 It. No such certificate of default shall be transmitted by i :iy Court, 
 nor shall any person be punished for neglect or refusal to attend any trial 
 or ('M(/i(('/(> or examination of witnesses, in obedience to any .such subpcona 
 or other similar process, unless it be made to appear to the Court trans- 
 mitting and also to the Court receiving such certificate, that a reasonable 
 ami suificienfc sum of money, according to the rate pir ilum and per mile 
 allowed to witnesses by the law and practice of the Superior Courts of Law 
 within the jurisdiction of wliicli such person was found, to defray the 
 expenses of coming and attending to give evidence and of returning from 
 i,'iving evidence, had been tendered m such person at the time when tlie 
 writ of subpcena, or other similar process, was served upon him. 
 
 10. The service of such writs of subpiena or other similar process in How seivice 
 Lower Canada, sha'' ^ie proved by the certificate of a Mailiff within the proved, 
 jurisdiction where ti service lias been made, under his oath of office, and 
 
 such service in U]ii>or Canada by the affidavit of service endorsed on or 
 annexed to such writ liy the person who served the same. 
 
 1 1. The costs of the attendance ot any such witness shall not be taxed Oosts of at- 
 ngainat tlie adverse party to such suit, beyond the amount that would have tendance pro- 
 vided for. 
 
 If expenses 
 paid or ten- 
 dered. 
 
 o 
 
 r 
 I 
 
 50 
 
80 
 
 Sec. 20. 
 
 WITNESSES AND EVIDENCE. 
 
 Chap. 73. 
 
 been allowed on a commission i-o(jatoire, or ^^ examine witnesses, unless 
 the Court or Judge before whom such trial or eu'inife or examination of 
 witnesses is had, so orders. 
 
 Power t<) issue 13. Nothing herein contained shall affect the power of any Court to 
 commissions to iggue a commission for the examination of witnesses out of its jurisdiction, 
 exarame wit- j^^^ affect the admissibility of any evidence at any trial or proceeding, 
 .served.''"' where such evidence is now by law receivable, on the ground of any wit- 
 ness being beyond the jurisdiction of the Court. 
 
 EXAMINATION OF WITNESSES. 
 
 Proof of con- 
 tradictory 
 written state- 
 ments. 
 
 1 T. Upon the trial of any cause a witnes.s may be cross-ex- 
 amined as to previous statements made by him in writing, or 
 reduced into writing, relative to the subject matter of the 
 eause, without the writing being shewn to him ; but if it is 
 intended to contradict the witness by the writing, his attention 
 must, before such contradictory proof can be given, be called to 
 those parts of the writing which are to be used for the purpose 
 of so contradicting him; and the Judge at any time during the 
 trial, maj- require the production of the writing for his inspec- 
 tion, and he may thereupon make such use of it for the 
 purposes of the trial as he thinks fit. R. S. O. 1837, c. 61, 
 s. 17. 
 
 Proof of con- 18. If a witness upon cross-examination as to a former 
 statements'"^*' statement made by him relative to the subject matter of the 
 cause, and inconsistent with his present testimony, does not 
 distinctlj'^ admit that he did make such statement, proof may 
 be given that he did in fact make it; but before such proof can 
 be given, the circumstances of the suppo.sed statement, suffi- 
 cient to designate the particular occasion, must be mentioned 
 to the witness, and he must be asked whether or not he did 
 make such .statement. R. S. O. 1887, c 61, s. 18. 
 
 Proof of pre- 10. — (1) A witness may be questioned as to whether he has 
 tio'n of a"wH- ^^^^^ convicted of any crime, and upon being so ques+'oned, if 
 nessmaybe he either denies the fact or refuses to answer, the opposite 
 niMh' etc.^" P'li'ty '""■y pi'ove the conviction ; and a certificate containing 
 the substance and effect only (omitting the formal part) of 
 the indictment and conviction for the offence, purportir^^ to be 
 signed by the clerk of the Court or other officer having the 
 custody of the records of the Court at which the offendtn- was 
 convicted, or by tlie deputy of the clerk or officer, sliall, upon 
 proof of the identity of the witness as such convict, be sufficient 
 evidence of his conviction, without proof of the signature or 
 of the official character of the person appearing to have signed 
 the certificate. 
 
 Certificate of 
 conviction. 
 
 Fee for. 
 
 (2) For such certificate a fee of $1 and no more may be 
 demanded or taken. R. S. 0. 1887, c. 61, s. 19. 
 
 wrt ma" '^^^ ^ !>ai'ty producing a witness shall not be allowed to 
 
 IhsCT^'e^rhis impeach his credit by general evidence of bad character, but 
 
 own witness. 
 
Chap. 73. 
 
 WITNESSES AND EVIDENCE. 
 
 Sec. 20. 
 
 81 
 
 in case the witness, in the opinion of the Judge, proves iidverse, 
 such pai'ty may contradict him by other evidence, or, by leave 
 of the Judge, may prove that the witness made at other times 
 a statement inconsistent with his present testimony ; but before 
 such last mentioned proof can be given, the circumstances of 
 the supposed statement, sufficient to designate the particular 
 occasion, must be mentioned to the witness, and he must be 
 asked whether or not he did make such statement. R. S. 0. 
 1887, c. 61, s. 20. 
 
 STATUTES AND PUBLIC DOCUMENTS. 
 
 Statitlcs, Proclamatlovs and Orders in Council, etc. 
 
 'it. In any proceeding in respect of which the Legislature of Copies of 
 Ontario has jurisdiction in this behalf, whenever it becomes p"ov^'^al*'"* 
 necessary or expedient to prove or give in evidence, any statute Statutes as 
 or ordinance of Canada or of this Province, or of any other evidence. 
 Province, or of any Territory in Canada, or of the late Province 
 of Canada, or of any other Province in British North America 
 whether such statute or ordinance was passed before or after the 
 passingof The British jS'onhAmericit Act, lSG7,iiny copy of any 
 such statute or ordinance purporting to l)e printed and pub- 
 lished by the Queen's Printer for the Dominion or for such Pro- 
 vince or Territory, or V)y the Government Printer for such Pro- 
 vince or Territor}?^, s'hall be receivable and received in evidence 
 to prove the contents thereof in every Court or tribunal having 
 cognizance of such proceeding. 60 V. c. 17, s. 1. 
 
 'i*i. Prima facie evidence of any proclamation, ordei*,regula- Proclama- 
 tion or appointment made or issued by the Governor-General or t'ons, Orders 
 by the Governor in Council or other chief executi\ ■' officer or etc., of Gov- 
 Administrator for the time being of the Government of Canada, emment of 
 or by or under the authority of any Llinister or head of any p^" edt' "" 
 department of the Government of Canada may be given in 
 eveiy Court or tribunal, and in all legal proceedings whatso- 
 ever, in respect of which the Legislature of tliis Province has 
 authority to enact tiiis provision, in any of the modes herein- 
 after mentioned, that is to say: 
 
 (a) By the production of a copy of the Canada Gazette, 
 or of a volume of the Acts of the Pai'liament of 
 Canada purporting to contain a notice of such pro- 
 clamation, order, regulation or appointment; 
 
 (h) By the production of a copy of such proclamation, 
 order, regulation or appointment, purjjorting to be 
 printed by the Queen's Printer for Canada; or, 
 
 (o) By the production, in the case of any proclamation, 
 order, regulation or appointment made or issued 
 by the Governor-General or by the Governor in 
 Council, or other chief executive officer or Adminis- 
 
 
 r 
 
 1 
 
 to 
 
82 
 
 Sec. 24. 
 
 WITNESSES AND EVIDENCE. 
 
 Chap. 73. 
 
 trator as aforesaid, of a copy or extract purporting 
 to be certified to he a true copy by the clerk or assi.st- 
 tant or acting clerk of the Queen's Privy Council for 
 Canada, and in the case of any order, regulation or 
 appointment made or issued by or under the 
 authority of any such Minister or head of a depart- 
 ment, by the production of a copy or extract pur- 
 porting to be certified as true by the Minister or 
 by his deputy or acting deput}% or by the secretary 
 or acting secretary of the department over which he 
 presides. GO V. c. 17, s. 2. 
 
 ProclamB- ♦{;{ Prima fucte Gv'uhnceoi any proclamation, oi'der, regula- 
 
 in Council, tion or appointment made or issued by a Lieutenant-Governor 
 etc., of Pro- or Lieutenant-Governor in Council of this or any other Pi'o- 
 ernments?how vince of Canada, or of any Territory of (Janada, or other chief 
 proved. executive officer or Administrator for the time being of the 
 
 Government of the Province or Territorj^ or by or under 
 the authority of anj'' member of the Executive Council, being 
 the head of any department of the Government of the Pro- 
 vince or Territory may be given in every Court or tribunal 
 and in all legal ^jroceedings in respect of which the Legislature 
 of this Province has authority to enact this provision in any 
 of the modes hereinafter mentioned, that is to say: 
 
 (a) By the production of a copy of the official Gazette foi- 
 
 the Province or Territory purporting to contain a 
 notice of such proclamation, order, regulation or 
 appointment ; 
 
 (b) By the production of a copy of such proclamation, 
 order, regulation or appointment purporting to be 
 jrinted by the Queen's Printer or the Government 
 'rinter for the Province or Territory; or 
 
 (c) By the production of a copy or extract of such pro- 
 clamation, order, regulation or appointment certi- 
 fied to be a true copy by tlie clerk or assistant or 
 acting clerk of the Executive Council, or by the 
 head of any department of the Provincial Govern- 
 ment or Territorial Government, or by his deputy 
 or acting deputy, as the case may be. 60 V. c. 17,s.3. 
 
 *i4. Any order in writing, signed by the Secretary of State of 
 Canada, and purporting to be written V)y connnand of th(! 
 Governor-General, shall be received in evidence as the order of 
 the Governor-(Jeiieral : and any order in writing signed by the 
 Provincial Secretary, and purpoi-ting to be written by com- 
 mand of the liieiitcMant-Governor, .shall be received in evidence 
 as the order of the Lieutenant-Governor. R. S, O. LS,S7, e. 20, 
 8. 7, part ; CO V. c. 17, s. 5. 
 
 K 
 
 Orders signed 
 by Secretary 
 of State or 
 Provincial 
 Secretary, 
 
Chap. 73. 
 
 WITNESSES AND EVIDENCE. 
 
 Sec. 25. 
 
 83 
 
 O^cial Documents. 
 
 /J5. AUcopies of official and other notices,advertisenients and Notices in 
 docnnients printed in tlie Cunadd Gazette or in the Ontario ''""'"*• 
 Gaz'tte .sliall be 'prima facie evidence of the originals, and of 
 the contents thereof. <SVe R.S.C. 1886, c. 139, s. 7 ; 00 V. c. 17, 
 
 8.6. 
 
 *ii\. In every case in which the original record could be I'e- How nublic or 
 ceived in evidence, a copy of any official or public document °^^ mwed. 
 in this Province, purporting to be certified under the hand of 
 the proper officer, or person in whose custoiU' such official 
 or public document is placed, or a copy of a document, by- 
 law, rule, regulation or proceeding, or a copy of any entrj- in 
 any register or other book of any corporation, created by ^t^^^pOTa^'*^' 
 charter or statute in this Province, purporting to l)e certified tions. 
 under the seal of the corporation, and the hand of the jiresid- 
 ing officer or secretary- thereof, shall be receivable in evid- 
 ence without proof of the seal of the corporation, or of the 
 signature or of the official character of the pei'son or persons 
 appearing to have signed the .same, and without further 
 proof thereof. R. S. 0."l887, c. 01, s. 28. 
 
 ^il. Where documents are in the official possession, custody or Privilege in 
 power of a member of the Executive Council, or the head of ^a^e of official 
 a Department of the Public Service of this Province, if the 
 deputy head or other officer of the Department has the 
 documents in his personal possession, and is called a.s a witness, 
 he shall be entitled, acting herein by the direction and on behalf 
 of such member of the Executive Council or head of the 
 Department, to object to produce the documents on the ground 
 til it they are privileged ; and such objection nia> be taken by 
 him in tiie same manner, and shall have the same effect, as 
 if such member of the Executive Council or head of the 
 Department were personally present and made the objection. 
 R. S. (). 1887 c. 01, s. 24. 
 
 '4S. Ir every Court or tribunal, and in all legal proceedings in 
 respect of which the Legislature of this Province has authority 
 80 to enact, a copy of anj' entry in any book of account kept 
 in any department of tiie Government of Canada or of this 
 Province, shall be received as prima facie evidence of such 
 entry, and of the matters, transactions and accounts therein 
 recorded, if it is proved liy the oath or affidavit of an officer of 
 such department that such book was, at the time of tlie making 
 of tl)e entry, one of the ordinary books kept in such depart- 
 ment, that the entry was apparently, and as the deponent 
 believes, made in the usual and ordinary' course of business of 
 .inch department, and that such copy is a true copy thereof. 
 CO V. c. 17, s. 7. Srr R. S. C. 1880, c. 139, s. 8. 
 
 *i9 — (1) Where a book or other document is of so public 
 a nature as to lie admissiblo in evidence on its mere pro- 
 
 Entries in 
 departmental 
 books to be 
 prima facie 
 evidence. 
 
 Copies of pub- 
 lic oooks or 
 doctliiieiits ad- 
 nuasiblo in 
 evidenci'. 
 
 o 
 
 .IS 
 
 ;. 
 
 i 
 
rffT" 
 
 Hi 
 
 Sec. 32. 
 
 WITNESSES AND EVIDENCE. 
 
 Chap. 73. 
 
 :|i! 
 
 ■igTiatun 
 •JiidgeB, etc, 
 
 duction from tlie proper custody, a copy thereof or ex- 
 tract therefrom shall he admissihle in evidence in any 
 Court of justice, or before a person having by law or 
 hy consent of parties, authority to hear, receive and examine 
 evidence, provided it is proved that it is an examined copy or 
 extract, oi- that it purports to be signed and certified as a true 
 copy or exti-act by the officer to whose custody tlie original 
 has been entrusted. 
 
 Copies to be (2) Such officer shall furnish such certified copy or extract 
 ('uired^*^** "' "■"■ to any pei-son applying for the same at a reasonable time, upon 
 his paying therefor a sum not exceeding ten cents for every 
 folio of one hundred words. R. S. O. 1887, c. 61, s. 25. 
 
 [As to documents in Crotvn Lands Department see Gap. 28, 
 sec. 47.] 
 
 Signatures of Judges, etc. 
 
 .indicial notice IJO. All Courts, Judges, Justices, Masters, Clerks of Courts 
 *i' ''at'ure8"of ^ Commissioners judicially acting, and other judicial officers 
 in this Province, shall take judicial notice of the signature of 
 any of the Judges of the Supreme Court of Canada, the Court 
 of Appeal, the High Court of Justice, the County Courts of 
 Ontario, or the Superior or Circuit Coiu'ts in Quebec, where 
 such signature is appended or attached to any decree, order, 
 certificate, affidavit, or judicial or official document, and no 
 proof shall be reijuired of the handwriting or official position 
 of any person certifying in pursuance of this Act to the truth 
 of any copy of or extract from any proclamation, order, regu- 
 lation or appointment; and any such copy or extract may be 
 in print or in writing, or partly in print and partly in writing. 
 R. S. O. 1887, c. Gl, s. 27 ; GO V. c. 17, s. 4. 
 
 Foreign J ndgments. 
 
 in. Any judgment, decree or other judicial proceeding re- 
 covered, made, had or taken in the Supreme Court of Judica- 
 ture in England or Ireland or in any of the Superior Courts 
 of Law, Ecpiity or Bankruptcy in Scotland, or in any Court 
 of Record in any of the Provinces of Canada, or in any British 
 Colony or Possession, or in any Court of Record of the United 
 States or of any State of the United States of America, 
 may be proved in any action or proceeding in Ontario, 
 in which proof of such, judgment, decree or judicial pro- 
 ceeding may be necessary or required, by an exemplification 
 of the same under the seal of the Court without any 
 proof of the authenticity of such seal or other proof what- 
 ever, in the same manner as any judgment, deci'ee, or similar 
 judicial proceeding of the High Court in Ontario may bo 
 proved by an exemplification thereof in any judicial or other 
 proceeding in the said Court. R. S. O. 1887, c. 61, s. 28. 
 
 Notarial Documents. 
 Copies of ii'it. A copy of a notarial act or instrument in writing made 
 
 mUue'ilerad- ^" Q"ehec, before a Notary, filed, enrolled or enreglstered by 
 
 missible. 
 
 Foreign judg- 
 ments, etc., 
 how proved. 
 
Chap. 73. 
 
 WITSESSKS AND EVIDEN'CF. 
 
 Sec. 82. 
 
 85 
 
 such Notary, and certified by a Notary or Prothonotary to be 
 a true copy of the oriijinal thereby certified to be in his 
 possession as such Notary or Prothonotarj', shall V)e receivable 
 in evidence in any judicial or other proceeding in Ontario in 
 the place and stead of the original, and .shall have the same 
 force and effect as tl^e original would have if produced and 
 proved. R. S. O. 1887, c. 61, s. 29. 
 
 nil. Such certified copy may be rebutted or set aside by How imi)f.ich- 
 proof that there is no such oi'iginal, or that the copy is not a 
 true copy of the original in some material particular, or that 
 the original is not an instrument of such nature as may, by the 
 law of Quebec, be taken before a Notary, or be filed, enrolled 
 or enregistered by a Notary in Quebec. R. S. O. 1887, c. 61, 
 s. 30. 
 
 Protests of Bills and Notes. 
 
 I{4. All protests of bills of exchange and promissor}- notes Protestsprima 
 shall be received in all Courts as privui. facie evidence of the 
 allegations and facts therein contained : and the production production of 
 of a protest wherever made of a promissory note or bill of protest *<> be 
 exchange, under the hand or seal of one or more Notaries ^jjenbe that 
 Public, in any Court in Ontario, shall be iirima facie evi- protest was 
 dence of the making of such protest. R. S. 0. 1887, c. 61, "" ®" 
 ss. 31. 33 ; 60 V. c. 15, Sched. A (19). 
 
 35. Any note, memorandum ar certificate at any time made Certain 
 by one or more Notaries Public in Canada, in his own no^taries't'o be 
 handwriting or signed by him at the foot of or embodied pWnw fade 
 in any protest, or in a regular register of official acts kept evidence, 
 by him shall be prima facie evidence in Ontario of the 
 fact of notice of non-acceptance or non-payment of a 
 promissory note or bill of exchange having been sent or deliv- 
 ered, at the time and in the manner stated in such note, 
 certificate or memorandum. R. S. 0. 1887, c. 61, s. 32. ; 60 V. 
 c. 1.5. Sched. A (18). 
 
 r 
 i 
 
 C 
 
 7 
 
 3 
 
 Sheriff's Conveyance on Division Court Judgment. 
 
 I56. In proving title under a Sheriff's conveyance based Provinf? titles 
 upon an execution issued from a Division Court it shall be ?."?,!I^!I''^"* 
 sufficient to prove the judgment recovered in the Division tions. 
 Court without proof of any prior proceedings. 57 V. c. 26, s. 4, 
 
 A^davits, etc., made out of Ontario. 
 
 JIT. Oaths, affidavits, affirmations or declarations adminis- d''^"'*!''^ *■"' 
 tered, sworn, affirmed or made out of the Province of Ontario Ontario may 
 before some one of the following persons : be made befl.re 
 
 , . . . certain func- 
 
 A Commissioner authorized to administer oaths in the tionaries in 
 Supreme Court of Judicature in England or Ireland; countries. 
 
86 
 
 Sec. 38. 
 
 WITXESSKS AND EVIDENCE. 
 
 Chap. 73. 
 
 m 
 
 A Judge of the Supreme Court of Judicature in England 
 or Ireland ; 
 
 A Jutl<Te of the Court of Session or the Justiciary Court in 
 Scotland ; 
 
 A Judge of any of the County Courts of Great Britain or 
 Ireland, witliin his County ; 
 
 A Notary Public and certified under his hand and official 
 seal; 
 
 The Ma}-or or Chief Magistrate of any City, Borough or 
 Town corporate, in Great Britain or Ireland, or in any Colony 
 of Her Majesty, or in any foreign country, and certified under 
 the coniiii(')n seal of such City, Borough, or Town corporate; 
 
 A Judge of any Court of Record or of supreme jurisdiction 
 in any C^jlony belonging to the Crown of Great Britain, 
 or any dependency thereof, or in any foreign country ; 
 
 Or, if made in the British Possessions in India, before any 
 Magistrate or Collector certified to have been such under the 
 hand of the Governor of such Possession ; 
 
 Or, if made in Quebec, before a Judge or Prothonotary of 
 the Superior Court or Clerk of the Circuit Court; 
 
 Or before any Consul, Vice-Consul, or Consular Agent of 
 Her Majesty exercising his functions in any foreign place; 
 
 Or before a Conmiissioner authorized by the laws of 
 Ontario to take affidavits in and for any of the Courts of 
 Record of the Province; 
 
 shall, for the purposes of and in or concerning any cause, 
 matter or thing depending or in any wise concerning any pro- 
 ceedings in any Courts in tliis Province, be as valid and effectual 
 and shall be of like force and effect to all intents and pur- 
 poses as if such oath, affidavit, affirmation or declaration had 
 been administered, sworn, affirmed or made in this Province 
 before a Counnissioner for taking affidavits therein, or other 
 competent authority of the like nature. R. S. 0. ltS87, c. 61, 
 s. 34. 
 
 Seal and sig- 
 nature need 
 not be proved. 
 
 188. Any document purporting to have affixed, impressed 
 or subscribed thereon or thereto the signature of such Com- 
 missioner, or lie signature and official seal of such Notary 
 Pulilic, or Prothonotary, or the seal of the Corporation, and 
 the signature of such Mayor or Chief Magistrate or Gover- 
 nor as aforesaid, or the seal and signature of such Judge, 
 Consul, Yice-Consul or Ccmsular Agent in testimon}' of 
 such oath, affidavit, affirmation or declaration having baen 
 administered, sworn, affirmed or nie Ij by or before him, or 
 for any other purpose authoriz« by this Act, shall be 
 admitted in evidence without proof of such signature, or 
 seal and signature, being the signature or the seal and signa- 
 ture of the person whose signature or seal and signature the 
 same purport to be, or of the official character of such person. 
 R. S. 0. 1887, c. 61, s. 35 ; 60 V. c. 3, s. 3. 
 
Chap. 73. 
 
 WITNESSES AND EVIDENCE. 
 
 Sec. 39. 
 
 87 
 
 ftC, 
 
 Formal Defects in Affi.davits. 
 
 H9. No int'ornmlity in the heading, or other formal requisites J"^j""'''J 
 to any affidavit, declaration or affirmation, made or taken Vie- not to 
 fore a Connnissioner or other person authorized to take invalidate, 
 affidavits under The Act respecting Commissioners for taking 
 A^davits and Recognizances or under this Act, shall be any 
 objection to its reception in evidence, if the Court or Judge ^®^- ^''''• 
 before whom it is tendered thinks proper to receive it. R. S, O. 
 1887, c. 61,s. 36. 
 
 Depositions. 
 
 40. Where an examination of a party or witness has Coijies of ae- 
 been taken before a Judge or other officer or person ap- tied by iierHon 
 pointed to take the same, copies of the examinations and taking tlie 
 depositions certified under the liand of the Judge, officer or gibie in evi- 
 other person taking the same, shall, without proof of the dence. 
 signature, be received and read in evidence, saving all just 
 exceptions. R. S. O. 1887, c. 61, s. 37. 
 
 Proof of Wills. 
 
 
 In actions con- 
 cerning real 
 estate, pro- 
 bate, etc., to 
 be prima facie 
 evidence of 
 will, etc., after 
 certain notice, 
 unless its 
 validity is put 
 in issue. 
 
 41. In any action where it is necessarj'- to produce and 
 prove an original will in order to establish a devise or 
 other testamentary disposition of or affecting real estate, 
 the party intending to establish in proof the devise or 
 other testanivontary disposition, ma\' give notice to the 
 opposite party ten daj^s at least before the trial or otlier 
 proceeding in which the proof is intended to be adduced, that 
 he intends at the trial or other proceeding to give in evi- 
 dence as proof of the devise or other testamentary disposition, 
 the probate of the will or letters of administration with the 
 will annexed, or a copy thereof, stamped with the seal of the 
 Surrogate Court granting the same, or with the seal of the 
 Court of Chancery, where the probate or letters of administra- 
 tion were granted by the former Court of Probate for Upper 
 Canada ; and in every such case the probate or letters of admin- 
 {''tration or copy thereof, respectively stamped as aforesaid, 
 shall be sufficient evidence of such will, anil of its validity and 
 contents notwithstanding the same may not have been proved 
 in solemn form, or have been otherwise declared valid in a con- 
 tentious cause or matter, under The Surrogate Courts Act, unless Rev.Stat. 
 the party receiving the notice within four days after the '^- 59- 
 receipt, gives notice that he disputes the validity of the devise 
 or other testamentary disposition. R. S. O. 1887, c. 61, s. 38. 
 
 4'i. In every case in which in such action the original As to costs of 
 will is produced and proved, the Court or Judge before whom fn an action'" 
 such evidence is given may direct by which of the parties the 
 costs thereof shall be paid. R. S. O. 1887, c. 61, s. 39. 
 
 r 
 
 1 
 
 c 
 
 '•p. 
 
88 
 
 Sec. 47. 
 
 WITNESSES AND EVIDENCE. 
 
 Chap. 73. 
 
 Pliidf ill tllP 
 
 caBe iif will of 
 rt^al eHtftte 
 filed ill courts 
 ill otliiT Bri- 
 tish pimses- 
 Riutis. 
 
 4It. Ill case nf tlie death of a person in any of Her Majesty'.s 
 po.s.se.s.sions out of Ontario, after having made a will Hutfi- 
 cient to pass real estate in Ontario, and whereby such estate 
 has lieen devised, charged or aH'ected, and in case such 
 will has been duly proved in any Court having the proof and 
 issuing probate of wills in any of such possessions, and remains 
 filed in such Court, then in case notice of the intention to use 
 such probate or certificate in the place of the original will, is 
 given to the opposite party in such proceeding one month 
 before the same is to lie so used, the production of the probate of 
 the will, or a certificate of the Judge, Rcgisti'ar or Clerk of 
 such Court, that the original is filed and remains in the Court, 
 and purports to have been executed before two witnesses, 
 shall in any proceeding in any Court in Ontario, con- 
 cerning such real estate, be sufr.cient "prima facie evidence 
 of the will and the contents thereof, and of the same having 
 been executed so as to pass real estate, without the production 
 of the original will ; but the probate or certificate shall not lie 
 used if, upon cause shewn before such Court, or a Judge 
 thereof, the Court or Judge finds reason to doubt the suffici- 
 ency of the execution of the will to pass such real estate 
 as aforesaid, and makes a rule or order disallowing the produc- 
 tion of the probate. R. S. O. 1887, c. 61, s. 40. 
 
 Certificate to 44. The production of the certificate, in the last preceding 
 evidence. ■^'""' section mentioned, shall be sufficient prima facie evidence of 
 the facts therein stated, and of the authority of the Judge, 
 Registrar or Clerk, without proof of his appointment, au- 
 thority or signature. R. S. O. 1887, c. 61, s. 41. 
 
 Meanin(^ of 
 "instrument.' 
 
 Rev. Stat, 
 c. 13G. 
 
 Copies of Registered Instruments. 
 
 45. The word " instrument " in the next succeeding two 
 sections shall have the meaning assigned to the word " insti'u- 
 ment" in section 2 of The Registry Act. R. S. 0. 1887, c. 61, 
 a. 42. 
 
 inafrument '^^- ^ exemplification or a certified copy of any registered 
 
 privia facie instrument or memorial under the hand and seal of office of the 
 
 evidence. Registrar in whose office the same is registered shall be received 
 
 as prima facie evidence, in every Court in Ontario, of the 
 
 original of the instrument or memorial, except in the cases 
 
 provided for in section 47. R. S. O. 1887, c. 61, s. 43. 
 
 [As to effect of production of an original duplicate the regis- 
 tration of which is certified, see Cap. 136, sec. 63.1 
 
 Certified 41. In any action where it would be necessary to produce and 
 
 tered h'llt'ro-''' P''°^^ ^^ Original instrument which has been registered in order 
 ments may be to establish sucli instrument and the contents thereof, the party 
 used instead of intending to prove such original instrument may give notice 
 notice. to the opposite party ten days at least before the trial, or other 
 
Chap. 73. 
 
 wnXKiSSES AXI) EVIDKXCK. 
 
 Sec. 47. 
 
 89 
 
 procoedinif in wliicli the said proof is intended to he adduced, 
 that he intends at tlie trial or other proceeding to <five in 
 evidence, as proof of the original instrument, a copy thereof 
 certified by tiie Registrar, under liis hand and seal of office, 
 antl in every such case the copy so certified shall he sufficient 
 evidence of the original instrument, and of its validity and 
 contents, unless the party receiving the notice within four Exception, 
 days after such receipt, gives notice that he disputes the valid- 
 ity of the original instrument, in which case the costs of pro- 
 ducing and proving the original may lie ordered by the Court 
 or Judge to be paid by any or either of the parties as may be 
 deemed right. R. S. O. 1887, c. 61, s. 45. 
 
 Costs in such 
 
 48. Where in any legal proceeding, any public officer Copies of 
 produces upon a .subpoena an original document, such mentstobe 
 original document is not to be d'^posited in Court, except in *i'?<l in lieu of 
 the case provided for by the next section of this Act, but if ""^"^ '*• 
 the instrument or a copy is needed for subsequent reference or 
 
 use by reason of judgment being postponed or for some other 
 reason, a copy of the document or of so much thereof as the 
 Judge deems necessary, certified under the hand of the officer 
 producing the document or otherwise proved, shall be marked 
 and filed as an exhibit in the place of the original where but 
 for this Act the original should be so marked and filed ; and 
 the officer shall be entitled to receive in addition to his ordinary 
 fees, the fees for any certified copy, the same to be paid to 
 him before the .said copy is delivered, marked or filed. 53 V, 
 c. 21, s. 1 ; 55 V. c. 14, s. 2 ; 60 V. c. 15, Sched. A (39). 
 
 49. Where there is a question as to the genuineness of the Otif^inal to be 
 instrument, and the Judge deems it necessary for that or any order* of "^'"' 
 other reason that the original be retained and makes an order Judge. 
 
 to that effect setting forth the reason, such order shall be 
 delivered to the Registrar or Clerk, and the exhibit shall be 
 retained in Court accoru.ngly, and marked and tiled as hereto- 
 fore. 53 V. c. 21, 8. 2. 
 
 
 t 
 
 i 
 
 i 
 
 Instruments deposited in Offices of Land Titles. 
 
 50. A certified copy attested by the Master's seal of office Certified 
 of any instrument affecting land which may be deposited, filed, 8trument8"o 
 kept, or registered in the office of the Master or Local Master ^ evidence, 
 of Titles, shall be prima facie evidence of such instrument, 
 and of the contents thereof ; and no Master of Titles shall be 
 required to produce any instrument as aforesaid, unless where 
 it is made to appear to the Judge directing the issue of a 
 subpoena that special reasons exist rendering the production of 
 the original necessary, and the said several reasons are to be 
 stated in the order. 53 V. c. 32, s. 10. 
 
90 
 
 Sec. 52 (1). 
 
 WITNESSES AN'D EVIDENCE. 
 
 Chap. 73. 
 
 C'lpics of cer- 
 tain flocu- 
 iiientN may In? 
 admitted an 
 •'vidence on 
 certain ccin- 
 ditiiins. 
 
 Copm of other written Instruments. 
 
 SI. — (1) In any action, or proceeding, in the cases of 
 telegrams, letters, shipping bills, bills of laaing, delivery 
 orders, receipts, accounts and other written instruments 
 used in business and other transactions, where it is necessary to 
 prove the original document, the party intending to prove the 
 original may give notice to the opposite party ten days at least 
 before the trial or other proceeding in which the said proof is 
 intended to be adduced, that he intends at the trial or other 
 
 oceedint: to irive in evidence as proof of th 
 
 f^ontents, 
 It. 
 
 an 
 
 instrument purporting to be a copy of the dof 
 
 Insijection. (2) Such copy )nay then be inspected by th. ..site party 
 
 at some convenient time and place ; and in every such case 
 the copy .shall without further proof be sufficient evidence of 
 the contents of the original document, and be accepted and 
 taken in lieu of the original, unless the party receiving the 
 notice within four days after the time mentioned therein for 
 such inspection gives notice that he intends to dispute the cor- 
 rectness or genuineness of the copy at the said trial or pro- 
 ceeding, and to require proof of the original ; and the Court or 
 
 Costa. Judge, before whom the question is raised may dii-ect by 
 
 wl\ich of the parties the costs which may thereupon attend any 
 production or proof of the original document according to the 
 rules of evidence heretofore existing, shall be paid. R. S. 0. 
 1887, c. 61, s. 4G. 
 
 MISCELLANEOUS PROVISIONS. 
 
 foreign trib 
 unal 
 
 Witnesses ii'i. — (1) Where upon application for this purpose, it is made 
 
 de%d''to"be *'° *PP^^'' *o ^^^ High Court or a Judge thereof, or to a County 
 examined in Court Judge in this Province, that any Court or tribunal 
 m.iu"r" *" d"^ ^^ competent jurisdiction in a foreign country has duly 
 ing before a authorized, by commission, order or other process, the obtaining 
 the testimony in or in relation to any action, suit or proceeding 
 pending in or before such foreign Court or tribunal, of any wit- 
 nesses out of the jurisdiction thereof and within the jurisdic- 
 tion of the Court or Judge so applied to, such Court or Judge 
 may order the examination before the person appointed, and 
 in a manner and form directed, by the commission, order or 
 other process, of such witnesses accordingly ; and may by 
 the same or a suhseiiuent order, command the attendance 
 of any persons named therein for the purpose of being 
 examined, or the production of any "writings or other docu- 
 ments mentioned in the order ; and give all such directions 
 as to the time, place and manner of the examination, and all 
 other matters connected therewith as may appear rcfiaonable 
 and just ; and the order may be enforced, and any disobedience 
 thereof punished, in like manner as in ca.se of an order made 
 
Chap. 73. 
 
 WITNESSES AND EVIDENCE. 
 
 Sec. 52 (1). 
 
 91 
 
 by the same Court or Judge in a cause depending in such Court 
 or before such Judge. 
 
 (2) Every person whose attendance is so ordered shall be Payment of 
 entitled to tlie like conduct money and payment for expenses ^'it^essT ° 
 and loss of time as upon attendance at a trial in the High • 
 Court. 
 
 (3) Every person e.Kamined under such commission or Right of re- 
 other process as aforesaid, shall have the like right to refuse to '»»»' '» 
 answer questions tending to criminate himself, and any other uoiw"nfl to" 
 questions which, in a cause pending in the Court by which or produce docu- 
 by a Judge whereof or bc^fore the Judge by whom the order for ™^"'^- 
 e.xamination was made, tl >; witness would be entitled to refuse 
 
 to answer ; and no persoi hall be compelled to produce at the 
 examination, any writing . locument which he would not be 
 compellable to produce at ti trial of Mich a cause. 
 
 (4) Where the commission directs, or the instructions of the Administra- 
 Court accompanying the same direct, that the person to be ex- ''"" " " 
 arained shall be sworn or sliall affirm before the Connnissioner 
 
 or other person, the Commissioner or other person shall have 
 authority to administer an oath or affirmation to the person 
 to be examined as aforesaid. R. S. 0. 1887, c. 01, s. 47. 
 
 •^1 
 
 C 
 
 53. In an action or other proceeding relating to any debt Evidence in 
 or account (other than an action by or on behalf of Her Ma- ^anv^pem™' 
 jesty), wherein a person residing in Great Britain is a party, resident in 
 the evidence and examination of witnesses on behalf of either ,^'a paJt"''"" 
 or any of the parties to the action or proceeding, shall be the 
 same, and given in the same manner as in other actions or pro- 
 ceedings according to the practice of the Court. R. S. 0. 1887, 
 c. 61. s. 48. 
 
 
 .'54. It shall not be necessary to prove by the attesting wit- Attesting wit- 
 ness, any instrument to the validity of whicii attestation is not nesH need not 
 requisite, and such instrument may be proved by admission or none is r^-"'" 
 otherwise, as if there had been no attesting witness thereto. q"ired by law. 
 R. S. 0. 1887, c. 01, s. .50. 
 
 •>i». Comparison of a disputed writing with any writing Comparison of 
 proved to the satisfaction of the Judge to be genuine, shall be f^g^'^jth '^'*' 
 permitted to be made by witnesses ; and such writings and the genuine, 
 evidence of witnesses respecting the same, may be submitted 
 to the Court and jury, as evidence of the genuineness or other- 
 wise 0* the writing in dispute. R. S. 0. 1887, c. 61, s. 61. 
 
 5C Where a document is received in evidence by virtue When instru- 
 of this Act, the Court, Judge, Commissioner or other person j^^'evfdence^ 
 acting or officiating judicially, who admits the same, may, may be im- 
 pounded. 
 
92 
 
 Sec. 57. 
 
 VVITXE.SSE.S AND EVIDENCE. 
 
 Chap. 73, 
 
 direct the same to be iiiipoundod and kept in the cus- 
 tody of an officer of the Court, or other pt-rson, for .such 
 period and .subject to sucli condition.s as to tho Court or per,son 
 who achiiits tho document .seem proper, or until furthei* order 
 toucliing tlie .same lias been made either by such Court or by 
 the Court to which the officer belongs, or Viy the person or 
 persons who constituted such Court, or by some one of the 
 Judges of the High (yourt or a County Court (as the case may 
 be), on apijlication made for that purpose. R. S. 0. 1887, 
 c. 61, s. 52. 
 
 Act to ixttiid UTi. The provisions of this Act shall be deemed to l)e in 
 rimit"m. desof ^'^''''^'"" ^° ^'^*^' not in derogation of any powers of proving 
 proof under documents given by any existing statute or existing at com- 
 
 exiatinK law. ,,,0^ j^^^, (jQ V. C. 17. S. 8. 
 
 [See also The Vendors and Purchasers Act, Cap. iJ.^,] 
 
EVIDENCE. 
 
 93 
 
 NOTES. 
 
 Competency- Seoti(;ii» 2 and 3 are similiar to the uiirepenled portions of the 
 Iiiipt'rial Statute (i and 7 V. c. 8,") s. 1. Before that Statute all persons liaving 
 an interest were disi,ualiHed as were also persons eonvioted of felony or any 
 species of rriiii'ii ffi/si unless pardoned or restored l>y having sutlered the 
 ])unishnient inflicted for tlie otl'ence. 
 
 Evidence of Parties. The evi<lenee of parties was first allowed in England in 
 County Court actions under !( and 10 V. c. !)."i and ultimately in all civil cases 
 hy 14 and 15 V. c. ilil s. 2, tiie evidence of parties was in England aUowed to 
 h[- received ; and l>y Ki and 17 V. e. S3 and 3'2 and 3.S V. c. ()8, the nicom- 
 petency of hushanil and wives of j)arties was removed subject to tlie restric- 
 tions now contained in .sp. a, ti, 7 and S. While Ki V. c. 1!) p. 1 renu)ved in 
 Canadu *he incompetency of witnesses from crime or interest, the evidence of 
 parties and their spouses was not nuide competent until 1S70, 33 \'. c. 13 ..>. 1. 
 A wife mav prove her own adultery in an action again.st her hushand for 
 goods supplied to lu'r ; Cooper v. Lloyd (IH.Jit) (i C. 13. N. S. "jlO. 
 
 Competent and Compellable. The w(jrd " conipellai)le " means " compellable 
 liy process of law" Kops v. Reg. (1804) A. C. B50. 
 
 Questions Tending to Criminate. Tlie provisions of s. o embody the law as to 
 tlie piiitci tion of a witness, tliough including the ca.se of a party e.xaniined as a 
 witness; D'lvry v. World Newspaper Co. (1807) 17 1*. R. 387. A party is 
 protected from • rwering any (piestion not only that has a direct teiKlency to 
 criminate him hut ihat forms one step toward doing .so subject to the ((ualiti- 
 catioii that lie must pledge his oat.i to his bebef that such wouhl or might bo 
 the ellect and that it appears to the presiding Judge that under all the circum- 
 stances such belief is likelv to be well founded ; I'ower v. Ellis, (1881 )()S.C.R. 
 1 ; Lamb v. .Munster (1883) 1(1 Q. H. I). 110; Weiser v. Heint/man (1S93) 15 
 P. K. •i.'iS ; DIvry v. Worhl News]mper Co. (18!»7) 17 !'. R. 387. This ])ro- 
 tection extends also to examinations for discoverv ; Jones v. (iallon (I8S'2)9 
 V. R. 2!l() : Hall v. (iowanlock (1888) 12 I'. R. t)()4 ; Wei.ser v. Heintzman 
 (18il3)15 1'. R. '258 and to the production of documents; D'lvry v. World 
 Newspajier Co. (1897) 17 1". R. 387, and the Statute 5(5 V. c. 31 (I)) providing 
 that no person sliall lie ex usable from answering any (piestion upon tlio 
 ground that the answer ina<' tend to criminate him has not altered the law 
 applicable to civil ictions ; Weiser v. Heintzman (1893) 15 P. R. 407. 
 
 'i'lie witness is comiiellable to answer when he has received iiefore or at the 
 trial a pardon under the great seal for tlie otl'ence which he fears ; R. v. Boyes 
 (1861)1 B. * S. 311. 
 
 Although the witness is not bound to answer, the question may be put ; 
 The (,>ueen's ('rt.se(lS20) 2 Brod. & B. 31 1 a. id the Court must see from the cir- 
 ruii;;-.'uoices of the case and the nature of the (piestions that the witness has 
 reasoiialile grounds to a])prelieiid danger. Ex parte Reynolds (1882) 2(.l Cli. 1). 
 294, but if danger is once made to ap)iear, great latitude will be allowed ; 
 OBlioru V. London Dock Co. (18,")(1) 10 Ex. (1118. CouiLsel will not be alhnved 
 to aiLMie in supjiort of the objection; R. v. Adey (1831) 1 M. & Rob. 04. 
 The objection is too late if rai.sed for the first time on an appeal ; Miller v. 
 M(Taggart( 1891) 200. R. (il7. 
 
 Penalties. The penal provisions of 13 Eliz. c. 5 afford no '"'ound for a 
 refusal to answer (lue.stions in an action to set aside a fraudule onveyanco, 
 Dunsfurd v. Carlisle (1884) 10 P. R. 440. The provisions <if s. refer only to 
 the trial of summary criminal or iiuasi-crimlnal proceedings in which the 
 Iienally is sought to be recovered, so that in other jiroceedings a witn(^ss will 
 still be entitled to the ]irotection of s. 5. In actions for penalties discovery 
 eitlier by examination or production of documents cannot be obtained from 
 the (Irfe'iidaut : lluiiniiigs v. Williamson ( 1883) 10 t/. B. 1). 4."(0; Martin v. 
 Trcnclier (18851 Ki I). IS. 1). .■)07 ; Joues v. Jones (1880) 22 Q. B. 1), 425; 
 lliilibs v. Hud.son (ISiKh 25 U 15. I). 'A'i-.^ ; Snmwli.i'M v Wir-W lHU-»\ -A I 
 
 
 u- 
 
 r 
 1 
 
 t 
 
 50 
 
 (^ 
 
 (1 
 
 i) 2 Q. 
 
 321 ; I'ickerel River linjirovement Co v. Moore (180(i) 17 P. R. 287; Mex- 
 lioiciugh v. Whitwood Urban District Council (1897) 2 Q. B. Ill ; unless the 
 
94 
 
 
 
 EVIDENCE. 
 
 iiciiiiltv is inipiiscd l)y wav "f dnniage.s and not of puniMliniLMit ; Adams v- 
 Hatlcv'llHHO) IS(^. B.'I). ti2.">; See Huntingdon v. Attiill (lsi)3) A. C. l.")(i. 
 This ■jdiulice is Iwised not on the seition 1-ut on tlie principles idating to 
 (liscovfi y wiiidi were in foiee in the olil Court of Chancery. 
 
 Breach of Promise of Marriage. Until ISK'_' the evidence of patties was not 
 received in actions i;f lii 
 lint since the passi 
 hieacli of iironiise 
 
 I of pronii.se : dones v. (iaIU.n (1S82). !t P.R. •-'iW ; 
 ssi?ig of 4"> \. c. ID, s. 3 (Out.) the parties to an action for 
 e of marriage are lioth eom])etent aixl comiiellahle witnes.se.s, 
 
 ^icLaugldin v. Moore (1SH4), 1(1 I'.K. 3-Ji) ; Jones v. (Jallon (18Sl>), 9 P.R. "iWi. 
 
 The iirc.scnt .section (i is siniilai- to Iin])erial Statute :V2 & 33 V. c. (W, s. 2. 
 
 Kvidciice that the jdaintitf wa.s overlieard to chaige the defendant with liavnig 
 
 made the promise and that tlie defendant made no answer is eonohorative 
 
 viden<e, Ue.ssela v. Stern (1H77), "2 C. IM). '-'I>."> ; hut the mere fact of his not 
 
 ni> 
 evi(len<e, liessela v. Mcrn (!«(<), 'Ji-^.i'.!'. -no; hut the mere fact of I 
 answering letters chaiging the ])roniise is not, Wiedenmn v. Waljiole ( 1,S!(1 ), 
 2(^15. .■)34. Kvidence sutiicient to make out a jiromise is not re(inired, l)ut 
 evidence whicli sii])ports or strengthens the plaijitill's evidence that a ])romise 
 WHS made, Costcllo v. Hunter (ISSti), 12 O.K. 3:!:?. Conduct of the parties 
 from which lieforc the passing of the .section a promise to marr,\ might have 
 licen inferred is sulliiient corroboration, Yarwood v. Hart (ISSS), (H). K. 23. 
 Wheie the date of the ])romis(^ is material it is not necessary that the corroh- 
 lioration shouhl extend thereto, .so long ns it is not inconsistent with the 
 l)i-omi.se nt the date alleged by the plaintitt'; fSnnth v. Jamieson (IS.Sit), 17 O.K. 
 (i2(>. 
 
 Proceedings in consequence of Adultery. The Imjicrial c(]uivalcnt for s. 7 is 
 32 iV 33 \'. <•. (i.S, s. 3. Tlie proviso in dial section dillers from tliat in s. 7 by pro- 
 viding " that no witness in any proceeding w lietlier a jiarty to the suit or not 
 .shall lie liable," etc. , instead of "that in such a case the liiisband or wife if 
 <'om|ieteiit only mider and by vi'. tue of this Act. shall not be liable," etc. It 
 will he oliserved that tlie sect n does not make any person compellable to give 
 evidence. There are no reported ca.ses as to the etfect of the ditl'erenee 
 betwei'ii this section and that in the Imperial Act. It may be that a jiarty to 
 tlic suit who tenders himself as a witness may be asked any i|uestioii while the 
 luisbaiid oi' wife of such party would not be so liable. 
 
 Altlioiigh thesi'ction says tlie witness shall not be liable to be asked any (pies- 
 tioii tending to show that liecjr she has been guilty of adultery, it means that on 
 it being pid|iosed to |iut (piestions ot that kind he or .she may claim tlie pro- 
 tection of the Statute and .say that he or she is not desirous of being interro 
 gated on the sulijcct, when it is the duty of the .luclge to refuse to allow any 
 of such ipiestioiis to be put. The privilege must, liowever, be claimed by the 
 witness, not liy counsel, Hebblethwaile v. Hi'bblethwaite iTSGi)), L. K. 2F. & 
 1). 2il. When the Statute applies no ipiestion tending to mIiow tlct the wit- 
 ness has been guilty of adultery will lie allowed if jirotcetion i claimed, Hab 
 bage V. Habbage ( 1870), l,.K. 2 P. & I). 222. A witness, however, whoileniei-- 
 the truth of some of the charges on cross-examination is bound to answer 
 ('luestions res|)ecti]ig all the charges contained in the pleadings. Brown v. Ihown 
 (1S74). 1,.H. 3 1'. it 1). HIS. Where the legitimacy of cliihiren born in wedhick 
 is in (lUestioii, the section does not ]iermit the evideiieeof the husband to ]>rove 
 non-aeeess to the wife lo be leceived, (luardians oi Xottingham v. Tomkinson 
 (IS7!)), 4C.1M). .343: Murnaby v. Baillie (ISSil), 42Ch.l). 282. 
 
 In an action ot riKiinal conver.sation the husband has no right to examine 
 the wife for discovery, M iiray v. Hrown (l.Sil4), Hi \'.H. 12."). 
 
 The evidence of one v itiics by confession of loose character, is not sutiicient 
 to ]irovc aihillcry unless corroliorated, Aldneli v. Ahlrieh (IS!(1), 21 O.R. 447. 
 
 Communications during Marriage. The Act ]irotects all communications, not 
 merely tliosi> wliirh arc coiiliilcntial : but it does not protect commuiiicntions 
 before marriage: (l'( 'oiiiKir \-. .Majoribunks (IS42). 4 M. it ( ii. 4.3.">, ami the 
 privilege lasts after dissolution of the maiiiage or the ileatli ot one of the 
 parties ; Monroe v. Twistleton (I.S02), 2 I'eake .Add. Ca. 21!t : Aveson \. Kin 
 iiaird (|S((.-)), li Kast l.H,S, 8 M.|{. 44."). A witness who is making the )iro 
 teeted disilosurc; . may refu.se to disclo.se anvtiiiiig further at aii\ time during 
 his ex.;min.ition : Connelly v. Murrell (18!)1 ,, 14 P.R. 187,27(1. 
 
 Evidence on Prosecutions. Piior to I,S!I2 the words "not being a crime" 
 V I'lv c(aitaiin'd in the si'itioii similar to s. SI, and where tlie evidence of a 
 defendant was rcicived in a iirosccntion under a Municipul l!\ law the con 
 vhtioii_was i|iiashed. K. v. Mart (ISilll, 2()(>.K. (ill : ]{. v. jic'cker (bsill ). 2(t 
 O. R. (i7(). The elision of those wiirds now makes a defendant competent and 
 compellable in all prosecutions for violation of |)roviiiciiil nets. 
 
EVIDENCE. 
 
 95 
 
 Actions'.by or against Representatives. Material evidence isaiiytiungmaterial 
 to the issue; McDimald v. McKinnon (187S), 26 (ir. 12: it may i>e either 
 director circumstantial; (ireen v. McLeod (1896), 23 A. R. 676. Anything 
 which helps the judicial mind to believe one or more of the material state- 
 ments i.s sufficient corrohoration and it is not necessary tiiat the ca.se should 
 be wholly proved by independent testimony ; Parker v. Parker (1881), 32 (.'.P. 
 113 ; Radford v. Macdonald (1887), 18 A. R. 167 ; Wat.son v. Uradshaw (1881), 
 
 6 A. R. 606. Tiie evidence of executors that at the time notes came intotiieir 
 possession tiiey bore endorsements of payments made to the testator, does 
 not require eoirolwration not being in respect of a matter occurring ))ef()re the 
 death of the deceased ; Stael)ler v. Zimmerman (18i)4), 21 A.R. 266. Kadi 
 joint (Iclitor of a deceased is an opiiosite or interested party in tlie same kind, 
 and they constitute together an opposite or interestcil party witliin section 
 10, and tlie evidence of one is not sufficiently corroborated by the otlier, Tay- 
 lor v. Regis (189.")), 26 O.R. 483. Where each item of a claim against the 
 estate of a decea.sed person is an independent transaction some corroboration 
 must be adduced as to each; Cook v. (irant (1882), 32 C.P. 511 ; Re Ross 
 (1881), 29 Or. 38.). K.xecutors wlio in good fi.ith com))romi.se a claim against 
 the estate nee<l not adduce corrol)orative evidence in su])port of tlie claim on 
 passing tlieir accounts ; re Robl)ins (1876), 23 (ir. 162. See also Halleran v. 
 Moon (I8S1), 28 (Jr. 319 ; Cole v. Manning (1877), 2 Q.H.I). 611. 
 
 What is not Corroboration. Kvidence which is consistent with two ojmosite 
 views is not corroborative of cither ; Re Finch, Finch v. Finch (1883), 23 C'h. D. 
 267; Tucker v. McMahon (188(i), 11 O.R. 718. Where a liusl)and received money 
 from liis wife, and tliere wa.s no evidence l)ut her own tliat it was rcccive<l by 
 way of loan, hci' claim against liis estate was disallowed; Re Laws, La\\8 v. 
 Laws (18S1), 28 (;r. 382. See also Burn v. Burn (188,j), M O.R. 237, 2.")3. 
 
 Corroboration not Required. Where a creditor assigned liis debt, to the 
 plaintitt' who sue<l tiie (lel)tor's executors, the original creditor's evidence does 
 not re((uire corrol)oration ; Wat.son v. Severn (1881), 6 A.R. .V)9. 
 
 Calling opposite party as a witness. Section 16 extends only to cases in 
 which by tlie same Act tlie ojipoiiitc party may be called as a witness, .Tones v. 
 Gallon (1882), 9 P. R. 29(1. A proper sum for expenses should lie tendered 
 witli tlie notice under s. 16, Street v. Faulkner (18.")()), 1,") U.C.R. 116. 
 Parties resident imt of the jurisdiction cannot be compelled to attend on notice, 
 Palcliim V. Davis (18.)3), 10 V.C.U. ()39 ; Tyre v. Wilkes (18.-)9), 18 U.C.R. 
 46. Tlie section docs not extend to corporations, Dnnwick School Tiustees v. 
 McBcath (18.51), 4 C.P. 228. On defeM(hint's non apjiearance a verdict may 
 be entered for tlie ])laiiititl', McWhinney v. Mc(^uaid ( 1850), ,'} (J. P. 161 ; and no 
 attention will be jiaid to his affidavit impeaching the correctness of the verdict. 
 Manning V. Mills (18>)4), 12 U.C.R. ")1.") ; but it wouhl seem to be necessary to 
 call for a party served with notice at the trial, Pegg v. i'lank (18.')3), 3 C.l'. 
 396, am' perhaps evidence may be received in su))purt of the defence although 
 the defendant may not be pres(!nt, .McOanii v. Keyes ( 1854), 12 U.(.'.R. 429. 
 A defendant away from home cai-not lie compelled to wait over for .several 
 ilays on |iavment of one day's conduct money. Bolkow v. Foster (1878), 
 
 7 P. R. 388. ■ 
 
 Tile section authorizes the calling of the opjiosite pai'ty only at the trial, 
 Vai'don V. \'ardon (I87K), " P. R. 4.'i6. Where the opposite (larty is called the 
 pait- calling liim is not necessarily coiichidcd liy his answeis, .\iair v. Cully 
 •,;rt.)3), 10 U.C.R. 321 ; Scott v. Crerar (1887), 14 A.R., at p. \.VX By non- 
 attendance the defendant does not admit the amount of damages, Robertson y. 
 Russ(lH.->3), 2 C.P. 193. 
 
 Subpoenas to Quebec. The op))osite jiarty may be a witness within C.S.C 
 c. 79, s. 4, Motlatt V. Prentice (1873), (i \'Ai. X\. When tlie plaintitl apjilies 
 for an order for a sub))ieiia it is necessarv for him to show thai no suit is pi'iid- 
 iiig for the same cause of aitioii in (,»ucliec, McPlicrson v. .McPherson ( 1870), 
 3 Cliy. (,'hamb. .")8, but a dct'ciidant applying need ntit ; Daly v. I{obinson (I8(i8), 
 I Cliy.t liamb. 271. Tliea])plication for the order may be made to the Master in 
 Cl'ambcrs or a Local .ludgc, MolVatt v. Prentice ( 1873), 6 I'.R. :t3,.an(l the 
 order will be made i.c /tarli. and ab.solute in the (irst instance; Redman y. 
 liroers (IM.V)), 4 W.R. 24; but the alHilavit should shew what the witness is 
 to prove oi' some reasonable grounds for bringing him, .Allen v. Hamilton ( 1867), 
 L.U. 2 CI'. .30. The sub))o iia unist shew it was issued pinsuant to an oriler or 
 the i)aity served cannot Im' i)iniislied foi' disoliediciic c. ]{>■ Darling ( 1877), 39 
 U.C.R. 339. 
 
 C 
 % 
 
 r 
 1 
 
 7 
 
 3 
 
96 
 
 EVIDENCE. 
 
 rTwr 
 
 It is doubtful wliether the power to issue subpoenns to Quebec applies to 
 arbitrations. In Klliott v. Queen (,'ity Assce. Co. (1873), (i P.R. 30, it was 
 hebl tlmt the power existed wlien tliu submission liad l)eeii made, a rule of 
 Court, but in Hall v. Urand (1883), 12 Q.H.I). 3!t, wliere an order had been 
 made in an action referrinK the cause "and all matters in ditlerenc- " to an 
 arbitrator, the arbitration was not a trial witliin 17 & 18 V. u. 34, s. I (Imperial), 
 which is substantially the same as C.fS.C. c. 79, s. 4. 
 
 Contradictory written statements. Wlicii a document is put into the hands 
 of a witness under cross-examination nu'rely to prove tlie signature or identity 
 or general nature of it, tlie opposite party is not entitled to immediate inspec- 
 tion C)f it, except sufficiently to enalile him to re-examine about the writing 
 and al.so to identify the writing in ca.se it sliould afterwards be put in evidence; 
 he may not read tlie docnnnent thiough or comment upon its contents until it 
 is put in by the other side, nor does it till tlien become evidence in the cause, 
 but if any cjuestion be put as to its contents or any further cpiestion l)e foundetl 
 on it there will be a right to ins])ect it, Koscoe's N.P. Kith Kd. 17!). Where 
 it is intended to contradict an affidavit by a written document it is necessary 
 that the party making the affidavit be cro.ss-exaniined upon it to give him an 
 opportunity of explaining it, otherwi.se tiie document cannot be received, 
 Hemming v. Maddick (1S7'2), L.R. 7 Ch. .395. Tlie contradictory statements 
 may lie ccjntained in a series of documents of wliiih no one by itself is sufKcient, 
 .Tiickson V. 'I'honia.soii (1S61), 1 li. & S. 74."). A statemcr.t iaken down l)y a 
 solicitor in tlic presenc of a witness is not a written .statement within s. 17, 
 Amstell V. Alexander (i8(i7). Hi L.T. 830. A party cannot contradict his own 
 witness by previous written statements, Ryberg v. Rvberg (1803), 32 L.J. 
 Mag. Cas. 112. 
 
 Contradictory Oral Statements. It is not enough to ask a witness whom it is 
 proposed t.) contradict wliether he ever made a statement — the time, place and 
 person involvc<l in tlie su])posed ccmtradiction should be indicated ; Angus v. 
 Smith (1829) M. & M. 474. A witness cannot be cross-examined for the 
 purpose of contradicting liim on matters irrelevant to the issue; Kx I'arte 
 I'almer (18.32) 1 Dcac. & C. 372 ; Kx Parte Arnsby (1833) 2 Deac. & C 
 213 ; (ioddnrd v. Parr (1804) 3 W. R. (i.33, and if an irrelevant (piestion is juit 
 the answer is conclusive ; Attg.-Cicn. v. Hitchcock (1847) 1 Ex. 91 ; Bank of 
 Hamilton v. Isaacs (1888) 16 0. R. 450. 
 
 Previous Conviction. A previous conviction if denied may bo proved 
 altliougli alto^etlier irrelevant; Ward v. Sinfield (1880) 43 L." T. 2.53. A 
 certificate sign-'d liy a de facto officer who by virtue of tliat office has the 
 custody of the records is sufiicient, e.g. a dcim'ty clerk jf the pence ; R. v. 
 I'arsons (18(i()) L. R. 1 C. C. 24. 
 
 Contradicting Party's own Witnesses. A hostile w itness is one who from the 
 manner in wliiili lie gives iiis evidence sliows tiiat he is not dcwirous of telling 
 the trutli to the Court ; Coles v. Coles (18()<i) L. R. 1 P. & 1). 70. A person 
 whose evidence turns out to be unfavorable to the party calling him, is not there- 
 fore an " adverse witness " he must in the o])inion of the .ludge be adverse in the 
 sense of shewing a hostile mind ; (ircenough v. Kccles (1859) o C. B. N. S. 786. 
 The discretion of the .Judge at the trial is absolute and c-nnnot be reviewed ; 
 Rice v. Ho\>ard (188(1) l(i Q. R. |). (isi. Where a .surgeon had given a certi- 
 ficate of serious injury to a iiiaintilf, and on being called by him c;ontradicted 
 it and alle^'cd it to be coUusiveiy given, he was allowed to be treated as adverse. 
 Martin v. I'ravellcr's Insurance Co. (18.-)9) 1 V. & V. .Wo ; and where a witness 
 had given a ditlerent statement to the party's solicitor he was aihiwed to bo 
 treated as adverse, but only with a view to discredit him generally ; Faulkner 
 V. Brine (18,-)8) 1 F. k V. 2.-)4 ; AnistcU v. Alexander (1807) U! L. T. 830; 
 but the section is not meant to apply to the loose statements made witli a view 
 to pri'pare the evideiic:e ; Reed v." King (1808) .30 -L. T. 290. In actions to 
 establish a will it is necessary to prove due execution, by one of the subscribing 
 witnesses. A jiarty calling such a witness calls him by comimlsion of law ami 
 the parly calling liini may produce evidence to disprove such of the facts 
 statedjiy him as are material to the is.sue ; Coles v. Coles (1800) L. R. IP. 
 & I). 70. Althoiigli a witness may disprove the ca.sc of the party calling 
 him it may iievertlieless be proved by other witnesses, such witnesses not being 
 called to discredit him but to coiitradiit him on the material facts Kwer v. 
 Ambrose (182.")) ."i 1). * R. Oo<) ; l-Viedlaiider v. London Assurance (18.')2) 4 
 H. * Ad. I!I3. A i>arly calling an adverse litigant cannot cross-examine him 
 without the leave of tlie .hidgc- ; I'rice v. Munning (1889) 42 Ch. D. 372. If 
 
EVIDEXCE. 
 
 97 
 
 an examiner allows a witness to be treated as hostile and the witness deems 
 himself unfairly treated the proper course is to refuse to answer and to bring 
 the matter before the Court ; Ohlsen v. Terrero (1875) L. R. 10 Ch. 127. 
 
 ProclamatlonB. A cutting from the Official Gazette is not sufficient evidence 
 R. V. Lowe (1883) 48 L. T 708. 
 
 Public Documents. A public document is a document that is made for the 
 purpose of the public making use of it, especially where there is a judical or 
 quasi judical duty to inquire ; Sturla v. Frecoia (1880) 5 App. Cas. fi'24. An 
 award of fence viewers is within s. 26 ; Warren v. Deslippes (1874) 33 U. C. R. 
 .59. Where a document — a petition to tlie Crown — is of such an age that upon 
 production it would prove itself a certified copy by the Clerk of the Kxecutive 
 Council, is sufficient witliout proof of the signatures to the document ; 
 Montgomery v. Graham (1871) 31 U. C. R. 37. 
 
 State Papers. The general public interest must be considered paramount to 
 the individual interest of a suitor in a Court of Justice ; Beatson v. Skene 
 (I8t)()) !S H. & N. 838. Formerly the question as to whether the document 
 should be produced or not was determinable only by the officer at the head of 
 the department and his judgment was conclusive and could not be reviewed by 
 the Court ; Bradley v. Mcintosh (1884) T) O. R. '2'27. Now the deputy head or 
 other officer who has possession of the documents may determine it. The 
 officer ma; .lecline to produce any document — a letter, or complaint to or 
 other communication with the Government; Attg.-Gen, v. Bryant (1846) 15 
 M. &. W. 169 ; Harrison v. Bush (1855) 5 E. & B. 344. 
 
 Proof by Examined Copy. S. 29 is similiar to 14 and 13 V. c. 99 s. 14 
 (Imperial). The first part states the common law rule. When a copy is certi- 
 fied under the section it is admissible on mere production ; R. v. Weaver 
 (1873) L. U. 2 C. C. 85. If the certificate is informal it may be proved to be 
 an examined copj' ; R. v. Mainwaring (1836) 26 L. J,, Mag. Cas. 10. Voters 
 lists are within the section ; Reed v. Lamb (1860) 6 H. & N. 75. 
 
 Foreign Judgments, A copy of a judgment certified to be a true copy under 
 tlie hand of the Prothonotaries of the Superior Court of Lower Canada, and 
 the seal of the Court was held to be a sufficient exemplification within s. 31 ; 
 Tilton V. McKay (1874) 24 C. P. 94; but a copy of an English Judgment 
 certified by one of the masters of the Court and without tiio seal of the Court 
 is insufficient ; Hesketh v. Ward (1866) 17 C. P. 190, and where the seal was 
 of the " fourteenth" judical district certifying a judgment recovered in the 
 " tenth " district the proof wos insufficient ; Junkin v. Davis (1863) 22 U. C. 
 R. , 369, 6 C. P. 408. An ex parte order of a foreign Court is an order or 
 other judicial proceeding ; Leishman v. Cochrane (1863) 1 Moo. P. C. N. 
 S. 313. 
 
 Notarial Protest. A protest from Lower Canada, certified as a true copy 
 from tlie notary's Ijook is good without any notarial seal, Ross v McKindsey 
 (1841), 1 L'.C.R. 307. \ny seal declared in the protest to be the notary s 
 official seal is sufficien. ; Commercial Bank v. Brega (1807), 17 C P. 473. See 
 as to affidavits R.S.O. c. 175, s. 8. 
 
 Division Court Judgment. A judgment in a Division Court is properly 
 proved by a certified copy of the entries in the procedure book, under s. 45 of 
 the Division Courts Act ; R. v. Rowland (1858), 1 F. & F. 72. 
 
 Affidavits mtule out of Ontario. An affidavit not signed by the deponent 
 may be received if the jurat shows that it was sworn before an authorized per- 
 son ; Re Howard (1874), L.R. 9 C.P. 347. 
 
 Proof of Wills. A probate is evidence of the testator's death, as well as of 
 the will ; Davis v. Van Norman (1870), 30 U.C.R. 437. The absence of the 
 notice required by s. 41 creates onlv a teciuiical difficulty, and if not given the 
 Court may properly, and would adjourn the trial to give an ojiportunity to 
 remove the difficulty; Hilliard v. Eifre(1874), L.R. 7 H.L. 39. The notice 
 once given is availalilo at any trial of the action ; Wilson v. Baird (1808) 19 
 C.P. 98. If no notice of disputing the validity of the will is given, but on the 
 probate being produced the will does not aopcar to be duly executed, the 
 Court will give liberty to a<lduce further evidence to show its due execution ; 
 Stewart v. Lees (1876), 24 Gr. 433. The wiu-ds "sufficient evidence" have 
 not the same meaning as " conclusive evidence." They mean that the probate 
 
 
 7 
 
 3 
 
98 
 
 tVlUKNCE. 
 
 I s'B 
 
 without more will be admissible evidence of the will and its contents as to 
 realty and will be prima farie evidence of the validity of the will and the com- 
 petcrice of the testator; in other words the probate alone will l)e sufficient evi- 
 dence to go to the jury of a devise of realty, but there is nothing to prevent 
 the other side from showing by evidence that the will is not valid or that the 
 testator was not competent; Barraclough v. Greenough (1807), L. R. 2 
 Q. W. «l-2. 
 
 The words "Her Majesty's possessions out of Ontario" in s. 43 include 
 England ; Coltman v. Brown (1859), 16 U.C.R. 133. 
 
 Registered Instruments. An original duplicate endorsed with a certificate 
 of registrati(Jn is evidence both of registration and execution ; Canada Per- 
 manent V. Page (1879), 30 C.P. 1. A certified copy is sufficient evidence 
 when notice is given. If no notice is given it would seem to be necessary to 
 prove the execution of the original. See R.S.O. c. 136, s. 56. 
 
 Suits before Foreign Tribunals. Concurrent Dominion Legislation with 
 reference to the examination of witnesses in suits before foreign tribunals will 
 be found in R.S.C. c. 140 ; but the right of the province to legislate upon the 
 subject was declared in rt Wetherell v. Jones (1887), 4 O.R. 713. 
 
 Actions with British Residents. Section .IS was enacted to virtually repeal 
 the Statute of 5 (leo. II c. 7 and 5 & (i Will. IV c. (i'2, authorizing evidence in 
 suits with residents of (Jreat Britain to be given bv affidavit ; .see Smith v. 
 McOowan (1854), II U.C.R. 399; 12 U.C.R. 270"; Ciabriel v. Derbyshire 
 (1851), 1 V.W 422. 
 
 Attesting witnesses-- when necessary. Tlie following are documents to the 
 validity of whicii attestation is necessary : (1) Deeds under powers, see R.S.O. 
 c. 119, s. 18. (2) Wills, see R.S.O. c. 128, .s. 13. (3) Warrants of attorney 
 and cognovits, see C.R 601. In these cases the attesting witness must prove 
 the document, or if he is dead or cannot be found, his handMriting must be 
 proved ; see Roscoe's N.P. 16tli Ed. 130, kI teq.; but all the witne.s.ses must be 
 accounted for ; Doe d. McDonald v. Twigg (1849), 5 U.C.R. 167. 
 
 Comparison of D'-puted Writings. An irrelevant document may be intro- 
 duced in evidence under s. 55 ; Birch v. Ridgway (1858), 1 F. & F. 270 ; Cres- 
 well V. Jackson (1860), 2 F. & F. 24: but if any question arises as to its 
 genuineness it must be decided by the Judge; Bartlett v. Smith (1843), 11 
 M. <fe W. 483. Where the question is as to the handwriting of a witness and 
 the witness in cross-examination is induced to write, his writing may be used 
 for comparison ; Cobl)ett v. Kilmin.stor (1865), 4 F. & F. 490. Evidence ad 
 mittcd on the comparison of handwriting should be treated as applicable to 
 the case generallv when it properl3' applies to it ; Royal Canaflian Bank v. 
 Brown (1868), 27 U.C.R. 41. 
 
 Impounding Documents. Before a document can be impounded it must be 
 put in evidence ; R. v. Clifford (1824), 1 C. & P. .521, but application must be 
 made during the trial; Borton v. Ockford (1836), 7 C. & P. 547. Copies of 
 impounded documents cannot be taken ; Re Solicitor (1891), 65 L.T. 584. 
 
EVIDENCE. 
 
 99 
 
 THE CANADA EVIDENCE ACT. 
 
 56 Victoria, chapter 31, as amended by 61 Victoria, 
 chapter 53 (Dominion). 
 
 HER MAJESTY, by and with the advice and consent of 
 the Senate and House of Cons' ons of Canada, enacts 
 as follows : — 
 
 1. This Act may be cited as The Canada Evidence Act, Short title 
 1893. 
 
 2. This Act shall apply to all criminal pi-oceedings, and to Application, 
 all civil proceedings and other matters whatsoever respecting 
 
 which the Parliament of Canada has jurisdiction in this 
 behalf. 
 
 
 WITNESSES. 
 
 No inL'oiui)ot- 
 ency from 
 crime or 
 interest. 
 
 Competency 
 of accused and 
 of wife and 
 husband. 
 
 Proviso: as 
 to coniniuni- 
 cations dur- 
 ing marriage. 
 
 3. A per.son shall not be incompetent to give evidence by 
 reason of interest or crime. 
 
 4. Every person charged with an offence, and the wife or 
 hu.sband, as the case may be, of the person .so charged, shall 
 be a competent witness, whether the person so charged is 
 charged solely or jointly with any other person. Provided, 
 iiowever, that no husband shall be competent to disclose any 
 communication made to him by his wife during their marriage, 
 and no wife shall be competent to disclose any communication 
 made to her by her husband during their marriage. 
 
 2. The failure of the person charged, or of the wife or 
 husband of such person, to testify, shall not be made the sub- 
 ject of comment by the Judge or by counsel for the prosecu- 
 tion in addressing the jury. 
 
 6. No witne.ss shall be excused from answering any ques- Inorimin 
 tion upon the ground that the answer to such questitm may '**''"g 
 tend to criminate him, or may tend to establish his liability to 
 a civil proceeding at the instance of the Crown or of any 
 person ; provided, however, that if with respect to anj^ ques- 
 tion the witness objects to answer upon the gtoiind that his 
 answer may tend to criminate him or niaj^ tend to establish 
 his liability to a civil proceeding at the instance of the 
 Crown or of any per,son, aiw', if but for this section tlie wit- 
 ness would therefore have boon excused from answering such 
 (juestion, then, although the witness shall be compelled to 
 answer, yet the answer so given shall not be u.si.'d or receiv- 
 able in evidence against him in any ciiminnl trial or other 
 
 r- 
 
 I 
 
 c 
 
 3, 
 
I 
 
 100 
 
 EVIDENCE. 
 
 I 
 
 criminal proceeding ajjainst him thereafter taking place other 
 than aj prosecution for perjury in giving such evidence. 
 61 Vict. chap. 53, s. 1. 
 
 Kvidencp of 6. A witness who is unable to speak, may give his evidence 
 mute. jn any other other manner in which he can make it intelligible. 
 
 .Judicial 
 notice to he 
 taken of Im- 
 (lerial Stnt- 
 utes, &c. 
 
 Proof of pro- 
 (rlamationg, 
 &c.,of Gover 
 iior-Genernl, 
 ^c. 
 
 Cano'U 
 Gazette, &c. 
 
 Copy printed 
 t)y Queen's 
 printer. 
 
 Copy or 
 extract duly 
 certified. 
 
 Proof of 
 proclama- 
 tions, &c., 
 of Lieuten- 
 ant-Gover- 
 nor, &c. 
 
 Official 
 Gazette, &c. 
 
 7. Judicial notice shall be taken of all Acts of the Imperial 
 Parliament, of all ordinances made by the Governor in (Coun- 
 cil, or the Lieutenant-Governor in Council of any province or 
 colony, which, or some portion of which, now forms or here- 
 after may form part of Canada, and of all tlie Acts of the 
 legislature of any province or colony, wliether re-enacted 
 before or after the passing of The British North America Act, 
 1867. 
 
 8. Evidence of any proclamation, order, regulation or 
 appointment, made or issued by the Governor- General or by 
 the Governor in Council, or by or under the authority of any 
 minister or head of any department of the Government of 
 Canada, may be given in all or any of the modes hereinafter 
 mentioned, that is to saj' : — 
 
 (a) By the production of a copy of the Canada Gazette or 
 a volume of the Acts of the Parliament of Canada purporting 
 to contain a copy of such proclamation, order, regulation or 
 appointment, or a notice thereof ; 
 
 (/)) By the production of a copy of such proclamation, order, 
 regulation or appointment, purporting to be printed by the 
 Queen's printer for Canada ; and 
 
 (c) By the production in the case of any proclamation 
 order, regulation or appointment ;nade or issued by the 
 Governor-General or by the Governor in Council, of a copy or 
 extract purporting to be certified to be true by the clerk, or 
 assistant or acting clerk of the Queen's Privy Council for 
 Canada, — and in the case of any order, regulation or appoint- 
 ment made or issued by or under the authority of any such 
 minister or head of a department, by the production of a copy 
 or extract purporting to be certified to be true by the minister, 
 or by his deputy or acting deputy, or by the secretary or act- 
 ing secretary of the department over which he presides. 
 
 9. Evidence ot any proclamation, order, regulation or 
 appointment made or issued by the Lieutenant-Governor or 
 Lieutenant-Governor in Council of any province, or by or 
 under the authority of any member of the i xecutive Council, 
 being the head of any depai tment of the Government of the 
 province, may bo given in all or any of the modes hereinafter 
 mentioned, that is to say : — 
 
 ((() By the production of a copy of the Official Gazette for 
 the province purporting to contain a copy of such proclama- 
 tion, order, regulation or appointment, or a notice thereof ; 
 
EVIDENCK. 
 
 101 
 
 (h) By the production of a copy of such pi oclamation, order, Com- printo<l 
 regulation or appointment purportinjf to be printed by the Ilfent°printer 
 Government or Queen's printer for the province ; 
 
 (c) By the production of a copy or extract of sucli proclama- Copy of 
 tion, order, reguhition or appointment purporting to be certi- certHied 
 fied to be true by the clerk or assistant, or acting clerk of the 
 Executive Council, or by'the head of any department of the 
 Government of the province, or by his deputy or acting 
 deputy, as the case may be. 
 
 10. Evidence of any proceeding or record whatsoever of, P''°"f "f JuJ'- 
 
 , „ " . '■ . ,, V. , — . - .. ^ oial propno'l- 
 
 ingH, &c 
 
 in, or before any court in the United Kingdom, or the Sup- \ P'.^ceet - 
 
 renie or Exchequer Courts of Canada, or any court, or before 
 any justice of the peace or any coroner in any province of 
 Canada, or any court in any British colony or possession, or 
 any court of record of the United States of America, or of any 
 state of the United States of America, or of any other foreign 
 country, may be made in any action or proceeding by an 
 exemplification or certified copy thereof, purporting to be 
 under the seal of such court, or under the hand or seal of such 
 justice or coroner, as the case may be, without any proof of 
 the authenticity of such seal or of the signature of such justice 
 or coroner, or other proof whatever ; and if any such court, 
 justice or coroner has no seal, or so certifies, then by a copy 
 purporting to be certified under the signature of a judge or 
 presiding magistrate of such court, or of such justice or 
 coroner, without any proof of the authenticity of .such signa- 
 ture or other proof whatsoever. 
 
 11. Impei'ial proclamations. Orders in Council, treaties, proof of Im 
 orders, warrants, licenses, certificates, rules, regulations, or perial Acts, 
 other Imperial official records, acts or documents maybe proved ®*''" 
 (a) in the same manner as the same may from time to time be 
 provable in any court in England, or (6) by the production of 
 a copy of the Canada Gazette, or a volume of the Acts of the 
 Parliament of Canada purporting to contain a copy of the same 
 or a notice thereof, or (c) by the production of a copy thereof, 
 purporting to be printed by the Queen's Printer for Canada. 
 
 1 
 
 c 
 
 2 
 
 "7 
 
 12. In every case in which the original record could beproofofoffi- 
 received in evidence, a copy of any oflScial or public document cial or public 
 of Canada or of any province, purporting to be certified under documenta. 
 the hand of the proper officer or person in whose custody such 
 official or public document is placed, or a copy of a document, 
 by- law, rule, regulation or proceeding, or a copy of any entry 
 in any register or other book of any municipal or other cor- 
 poration, created by charter or statute of Canada or any pro- 
 vince, purporting to be certified under the seal of the corpora- 
 tion, and the hand of the presiding oflScer, clerk or secretary 
 thereof, shall be receivable in evidence without proof of the 
 
102 
 
 EVIDENCE. 
 
 8ea 
 
 of the corporation, or of the signature or of the official 
 character of the person or persons appearing to have signed 
 the same, and without further proof thereof. 
 
 [)pio» 
 ihlic 
 
 public books 
 or documents 
 .idniissible in 
 evidence. 
 
 1 3. Where a book or other document is of so public a nature 
 as to be admissible in evidence on its mere production from the 
 proper custody, and no other statute' exists which renders its 
 contents provable by means of a copy, a copy thereof or extract 
 therefrom shall be admissible in evidence in any court of jus- 
 tice or before a person having, by law or by consent of parties, 
 authority to hear, receive and examine evidence, provided it is 
 proved that it is a copy or extract purporting to be certified 
 to be true by the officer to whose custody the original has been 
 entrusted. 
 
 Proof of 14. No proof shall be required of the handwriting or official 
 
 handwriting, position of any person certifying, in pursuance of this Act, to 
 
 quisit""* " the truth of any copy of or extract from any proclamation, 
 
 order, regulation, appointment, book or other document ; and 
 
 any such copy or extract may be in print or in writing, or 
 
 partly in prmt, and partly in writing. 
 
 Order signed 15. Any order in writing, signed by the Secretary of State 
 o{ Stete^*"" of Canada, and purporting to be written by command of the 
 
 Governor-General, shall be received in evidence as the order of 
 
 the Governor- General. 
 
 Copies of 
 notices, etc. 
 in Canada 
 Gazette. 
 
 16. All copies of official and other notices, advertisements 
 and documents printed in the Canada Gazette shall be prima 
 facie evidence of the originals, and the contents thereof. 
 
 Copies of 
 entries in 
 books of (iov 
 ernment de- 
 partments. 
 
 1 7. A copy of any entry in any book kept in any department 
 of the Government of Canada, shall be received as evidence of 
 such entry and of the matters, transactions and accounts therein 
 recorded, if it is proved by the oath or affidavit of an officer 
 of such department that such book was, at the time of the 
 making of the entry, one of the ordinary books kept in such 
 department, that the entry was made in the usual and ordinary 
 course of business of such department, and that such copy is a 
 true copy thereof. 
 
 Proof of 
 notarial actB 
 in Quebec. 
 
 18. Any document purporting to be a copy of a notarial 
 act or instrument made, filed or enregistered in the Province 
 of Quebec, and to be certified by a notary or prothonotnry to 
 be a true copy of the original in His possession as such notary 
 or prothonotary, shall be received in evidence in the place and 
 stead of the original, and shall have the same force and effect 
 as the original would have if produced and proved ; Provided, 
 that it may be proved in rebuttal that there is no such original, 
 or that tne copy is not a true copy of the original in some 
 
EVIDENCE. 
 
 103 
 
 material particular, or that the original is not an instrument 
 of such nature as may hy the law of the Province of Quebec 
 be taken before a notary or be filed, enrolled or enregistered 
 by a notary in the said province. 
 
 19. No copy of any book or other document as provided in Notices to he 
 sections ten, twelve, thirteen, fourteen, seventeen and eighteen g'^«" t«> <"• 
 of this Act, shall be received in evidence upon any trial unless ^''"'' '""^ ^' 
 the party intending to produce the same has before the trial 
 given to the party against whom it is intended to be produced 
 reasonable notice of such intention. The reasonableness of the 
 notice shall be determined by the court or judge, but the notice 
 shall not in any case be less than ten days. 
 
 80. The provisions of this Act shall be deemed to be in Construction 
 addition to and not in derogation of • ,ny powers of proving of this Act. 
 documents given by any existing statute or e.xisting at law. 
 
 81. In all proceedings over which the Parliament of Canada Appliontion 
 has legislative authority, the laws of evidence in force in the "awg'^of'evi* 
 province in which such proceedings are taken, including the dence. 
 laws of proof of service of any warrant, summons, subpoena or 
 
 other document, shall, subject to the provisions of this and 
 other Acts of the Parliament of Canada, apply to such proceed- 
 ings. 
 
 Oaths and Affirmations- 
 
 83. Every Court and Judge, and every person having, by who may 
 law or consent of parties, authority to hear and receive evi- adminifiter 
 dence shall have power to administer an oath to every witness °**"*- 
 who is legally called to give evidence before that court, judge 
 or person. 
 
 83. If a person called or desiring to give evidence, objects, Atiirmation of 
 on grounds of conscientious scruples, to take an oath or is witnesses in- 
 objected to as incompetent to take an oath, such person may " "^^ " "" * 
 make the following affirmation : — 
 
 " I solemnly affirm that the evidence to be given by me shall 
 be the truth, the whole truth, and nothing but the truth." 
 
 And upon the person making such somemn affirmation, his 
 evidence shall be taken and have the same effect as if taken 
 under oath. 
 
 84. If a person required or desiring to make an affidavit or Affirmation 
 deposition in a proceeding or on an occasion whereon or touch- instead of 
 ing a matter respecting which an oath is required or is lawful, °'''*''- 
 whether on taking oflSce or otherwise, refuses or is unwilling 
 
 to be sworn on grounds of conscientious scruples, the Court or 
 Judge, or other officer or person qualified to take affidavits or 
 
 
 (/■ 
 
 i 
 
 C 
 
104 
 
 EVIDENCE. 
 
 Pet-jury. 
 
 depositions, shall permit such person instead of being swoni 
 to make his solemn affirmation in the words following, viz., 
 " i, A. B , do .solemnly affirm," etc., which .solemn affirmation 
 shall be of the same force and effect a» if such person had 
 taken an oath in the usual form. 
 
 2. Any witness whose evidence is admitted or who makes 
 an affirmation under this or the next preceding section shall 
 be liable to uidictment and punishment for perjury in all 
 respects as if he had been sworn. 
 
 35. In any legal proceeding where a child of tender years 
 is tendered as a witness, and such child does not, in the opinion 
 of the Judge, Justice or other presiding officer, understand the 
 nature of an oath, the evidence of such child may be received 
 though noi given upon oath, if, in the opinion of the Judge, 
 Justice or other presiding officer, as the case may be, such 
 child is possessed of sufficient intelligence to justify the recep- 
 tion of tne evidence, and understands the duty of speaking the 
 truth. 
 
 Corroboia- 2. But no case shall be decided upon such evidence alone, 
 
 tion retiuired. and such evidence must be corroborated by some other material 
 evidence. 
 
 Evidence of 
 child. 
 
 STATUTORY DECLARATIONS. 
 
 Solemn de- 
 claration. 
 
 SJ6. Any Judge, notary public. Justice > 
 or Stipendiary Magistrate, record, i t 
 authorized to take affidavits to b' 
 or Dominion Courts, or any otht iction 
 law to administer an oath in u mattei 
 solemn declaration of any person voluiitari' 
 before him, in the form of Schedule A to ; 
 tion of the execution of any winting, deed oi instrument, or of 
 the truth of any fact or of any account rendered in writing. 
 
 sioMr 
 
 iie incial 
 
 uth' t*d by 
 
 lay receive the 
 making the same 
 i i Act, in attesta- 
 
 Affidavits 
 required by 
 insurance 
 companies. 
 
 27. Any affidavit, affirmation or declaration required by anv 
 insurance company authorized by law to do business in Can 
 ada, in regard to any loss of, or injury to person, property or 
 life insured or assured therein, may be taken before any com- 
 missioner or other person authorized to take affidavits, or 
 before any Justice of the Peace, or before any notary public 
 for any province of Canada; and such officer is hereby required 
 to take such affidavit, affirmation oi declaration. 
 
 38. The Acts mentioned in Schedule B to this Act are 
 hereby lepealed. 
 
 meTofTct ^^ '^'"^ ^"^ ^^*" ^'o™^ ^^<^o fo™e on the first day of July, 
 • one thousand eight hundred and ninety-three. 
 
 Repeal. 
 
EVIDENCE. 
 
 105 
 
 SCHEDULE A. 
 
 I, A.B., do solemnly declare that (state the fact or factH declared to), and I 
 make this solemn declaration conscientiously believing it to be true, and know- 
 ing that it is of the same force and effect as if made under oath and by virtue 
 of The Canada Evidence Act, 1893. 
 
 Declared before me 
 this day of 
 
 , A.D. 18 
 
 at 
 
 SCHEDULE B. 
 
 Acts repealed. 
 
 R. S. C. 0. 139 
 R. 8. C. 0. 141 
 
 Title. 
 
 An Act respecting Evidence 
 
 An Act respecting Extra-judicial Oaths. 
 
 Extent of repeal. 
 
 The whole Act. 
 The whole Act. 
 
 
 1^ 
 
 
106 
 
 EVIDENCE. 
 
 NOTES. 
 
 Application of Act. Criminal proccrliire is within tlie exclusive cognizance 
 of the Dominion Parliament, B.N. A. Act, .s. 91 (27). Tln" procedure in civil 
 matters in pro\incial covirts is within the competence of the provincial legisla- 
 tures, B.N.A. Act, 8. 92 (14). So far as applicable, the Canada Evidence Act 
 piohably governs proceedings in the Exchequer 'Jourt. 
 
 Incriminating Answers. The amendment to the Act made by 61 V. c. 5,3, 
 makes it necessary for a witness who desires protection from incriminating 
 answers to object to answer the questions, the answers to which might tend to 
 criminate him. The cases cited in the notes to R.S.O. c. 73, p. 93, show when 
 the witness would bf fore the act have been excused from answering. In R. v. 
 Hendershot (1895), 26 O.R. 678, and R. v. Williams (1897), 28 O.R. 583, it 
 was held that uniler s. 5 of the act as it then stood, evidence given by a per- 
 son without objection could afterwards be used in criminal proceedings against 
 him, but this case was not followed in R. v. Hammond (1898), 2S O.R. 2il. 
 I^arlianiont has now settled that the rule laid dc, .. in the two earlier cases is 
 to be followed. 
 
 Judicial Notice. In civil proceedings in provincial courts it would be neces- 
 •sary to prove a statute or ordinance of another province in the manner pro- 
 vided by R.S.O. c. 73, s. 21 ; but in criminal and other proceedings within 
 the authority of the l)ominion Parliament judicial notice would oe taken 
 thereof without productio' ■ or proof. 
 
 Proclamations, etc. 
 
 22 and 23 of R.S.O. c. 
 
 Sections 8 and 9 are substantially the same as Beotions 
 
 Judjrments. Section 10 is someivhat wider than section 31 of R.S.O. c. 73 
 dealing with the proof of judgments and other judicial proceedings. 
 
 Official Documents. See similar provisions R.S.O. c. 73, ss. 26, 27, 28 and 29. 
 
 Notarial Documents, fiee R.S.O. c. 73, ss. 3? and 33. 
 
 Notice of Intention to use Copy. In civil proceedings in provincial courts, 
 no notice of the intontion to use copies of public or official documents is neces- 
 sary, but the copies are prima Jack evidence upon production. In matters to 
 which the Canada Evidence Act applies, at least ten days notice must be given. 
 
 Objection to Take Oath See R.3.O., c. 73, s. M. 
 
 Evidence of Children. There is no provision, similar to that made by section 
 2;"), for receiving the evidence of a child who does not understand the nature of 
 an OAth, in civd proceedings in provincial courts, and such evidence cannot 
 tbei->.'forf' bi; receiied. Roscoe's N. P. 16th Ed. 161. 
 
 Extri-.ludidal Oaths. Foimorly a peiiaity was imposed on any official 
 udminidtering an oath <.".fv;pt in judicial proceedings, or where an oath was 
 required bylaw, R.S.C., c. 141. The object was to suppress extra-judicial 
 t'laths. 
 
 A per ior who wilfully and corruptly makes a false declaration is guilty of 
 piTJary. Criminal Code s. 148. 
 
PART IV. 
 
 
 Torts^ 
 
 r 
 1 
 
 C 
 to 
 
 ■7 
 
 [107] 
 
Sec. 1. 
 
 LIBEL AND SLANDER. 
 
 Chap. 68. 
 
 109 
 
 CHAPTER 68. 
 An Act respectint;' Actions of Libel and Slander. 
 
 Interpretation, s. 1, .8 (2). 
 Whether a publication amounts 
 to a libel, a question for the 
 
 ■lURY, 8. 2. 
 
 Averments in actions for libel ob 
 
 SLANDER, 8. 3. 
 
 Apology may be shewn in mitiga- 
 tion OF damages, b. 4. 
 Special damages need not be 
 
 PKOVED IN certain SLANDERS OF 
 WOMEN, S. 5. 
 
 Plea of publication without 
 malice or oro.ss negligence 
 with an apology, 8. 6. 
 
 Payment into Court by way of 
 
 AMENDS, 8. 7. 
 
 Privileged reports, ss. 8, 9. 
 Security for costs, 8. 10. 
 Place of trial, s. 11. 
 Subsequent sections to apply 
 
 ONLY to NEWSPAPEHS PUBLISH- 
 ED IN Ontario, s. 12. 
 
 Limitations op Actions, s. 13. 
 
 Consolidation of Actions, s. 14. 
 
 Order of judge respecting se- 
 curity FINAL, s. 15. 
 
 Damages recovered in other ac- 
 tions, ETC., may be proved IN 
 
 mitigation, s. 16. 
 Author of libel may be joined as 
 a defendant, s. 17. 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows • — 
 
 1 . In this Act " newspaper " shall mean any paper Interpreta- 
 containing public news, intelligence, or occurrences, or any re- ''°"' 
 marks or observations thereon, printed for sale and published 
 periodically, or in parts or numbers, at intervals not exceeding _^ 
 twenty-six days between the publication of any two such "Newspftper.' 
 papers, parts or numbers, and any paper printed in order 
 to be dispersed and made public weekly or oftener, or at inter- 
 vals not exceeding twenty-six days, and containing only, or 
 principally, advertisements. R. S. O. 1887, c. 57, s. 1 ; 57 V. 
 c. 27. s. 2 part; 60 V. c. 15, s. 8. 
 
 .. ..^v., W.X VLL^ u^;.wiiu^ wi wv'w t. miv j ' . . ""^ j^^j O..V..X.1 «yj Kj^j, return avei 
 the issue ingy give a general verdict of guilty , or not guilty, dictof guili 
 upon the whole matter put in issue in the action, and shall p"oof"of t*h( 
 
 3. On the trial of an action for the making or publishing Jury not to 
 a libel, on. the defence of not f^uilty. the jury sworn to try return'a^verf 
 
 '■ ■ " •" ■ •" - - lilty 
 
 I mere 
 
 not be required or directed by the Court or Judge, before whom publication 
 the action is tried, to find the defendant guilty, merely on the "'"^ "^ *'^*-b«d. 
 proof of publication by the defendant of the paper charged to 
 be a libel, and of the sense ascribed to *l>e - - *he action ; 
 
 but the Court or Judge before whoiu had shall, 
 
 according to the discretion of the Cou -uge, give the 
 
 opinion and directions of the Court or v uuge to the jury on 
 
 r 
 
 3) 
 
no 
 
 LIBEL AND SLANDER. 
 
 Sec. 
 
 Averments in 
 actiona for 
 libel or 
 Hlander. 
 
 Defendant 
 
 or printed 
 apology. 
 
 .-^X 
 
 ^ 
 
 Chap. 68. 
 
 tlie matter in issue, as in other cases ; and the jury may on 
 such issue find « s ppf^ial verdict, if they think fit so to do. and 
 the defendant, if found guilty, may move in arrest of judgment 
 on such ground and in such manner as he might have moved 
 before the passing of this Act. R. S. O. 1887, c. 57, s. 2. 
 
 3. In actions of libel and slander, the plaintiff may aver that 
 ^the words or matter complained of were used in a defamatory 
 
 sense , specifying the defamatory sense without any prefatory 
 averment to shew how the words or matter were used in that 
 
 ' sense, and the averment shall be put in issue by the denial of 
 t lie alleged libel or slander ; and where the words or matter 
 set forth, with or without the alleged meaning, shew a cause of 
 action, the statement of claim .shall be sufficien t. R. S. O. 1887, 
 
 I c. ")7, s. 3. 
 
 4. In an action for defamation where the defendant has 
 may prove in pleaded not guilty only, or has suffered judgment by default, or 
 thatife offered judgment has been given against him on demurrer, he may 
 a written give in evidence, in mitigation of damages , that he made or 
 
 offered a written /6r printed apology to the plaintiff for such 
 defamation before the commencement of the action ; or in case 
 the action was commenced before there was an opportunity of 
 making or offering such apology, that he did so as soon after- 
 wards as he had an opportunitJ^ R. S. O. 1887, c. 57, s. 4. 
 
 5. — (1) In an action of slander for defamatory words 
 spoken of any woman and impiiting or meaning that such 
 woman has committed or been guilty of adultery, forn i- 
 cation or concubinage,, it shall not be necessary to alle ge 
 in the plaintiffs statement of claim, or to prove at the trial, 
 that any special damage resulted to the plaintiff from the 
 utt- ince of such words, but the plaintiff may recover nomina l 
 dam es without averment or proof of special damage. 
 
 {2) A plaintiff shall not under this section, or because or by 
 reason of the provisions in this section contained, be entitled to 
 recover a verdict in any such action, unle.ss the statement of 
 claim contains an allegation that the action is brought by the 
 plaintiff under the provisions of this .section. 
 
 (3) In any such action, the defendant may, at any time after 
 the filing of the statement of claim, apply to the Court or a 
 Judge for security for costs , upon notice and an affidavi t by 
 the defendant shewing the nature of the action and that the 
 plaintiff is not possessed of property sufficient to answer the 
 costs of the action in case a verdict or judgment is given in 
 favor of the defendant, and that the defendant has a good 
 defence to the action on the merits, or that the grounds of 
 action are trivial or frivolous; and the Court (>r Judge mny 
 make an order that the plaintirt' shall give security for the 
 costs to be incurred in such action, and the .security ao ordered 
 shall be given in accordance with the practice in cases where 
 
 Proof of 
 Hpecial 
 damage not 
 required in 
 certain caues. 
 
 y- 
 
 >" 
 
 Statemeiil "f 
 claim to refi-r 
 to this section 
 
 Security for 
 
 COHtl). 
 
Sec. 5 (3). 
 
 LIBEL AND SLANDER. 
 
 Chap. 68. 
 
 Ill 
 
 a plaintiff resides out of the Province, and th e order shall be a 
 stay of proceedin gs until the proper sftp.iirjf, y is g iven. 
 
 (4) For th^ purposes of sub-section 3 of this section the Bxaminaticn 
 
 ' . fi\ 1 — . .^' . 1 1 — I . . 1 Of parties. 
 
 plainti ff or the deiendant may be examined upon oatii at any 
 time alter the statement ot claim has been filed. ^' ^' 
 
 "3TT. 
 
 c. 14. s. 1. 
 
 Defendjiat 
 may plead th at 
 the libel wa s 
 maertea "%Wth 
 out m MlCP or 
 gro^a H^fel i- 
 grillUH, Hl Td 
 
 that im rfu b- 
 
 liah ea OI L 
 
 fegTo i?»b- 
 
 apoloffy.. 
 
 6. — (1) In an action for libel contained in a newspaper, the 
 ''Tlefendant may plead that the libel was inserted in the news- 
 paper without actual malice and without gross negligence, and 
 that before the commencement of the action, or at the earliest 
 opportunity afterwards, he inserted in the newspaper a full 
 apology for the libel ; or if the newspaper in which the libel 
 appeared is one ordinarily published at intervals exceeding 
 one week, that he offered to publish the apology in any news- 
 paper to be selected by the plaintiff in the action. 
 
 (2) No such a ction shall lie unless and until the plaintiff Action nut to 
 has given to the defendant notice jn writing «p pnifying' the J?,*n ""*"'^ 
 statements complained of, such notice to be served in the 
 
 same manner as a plaintiffs statement of claim is served or 
 by delivering the notice to some grown up person at the place 
 of business of the defendant. T he plaintiff shall recover actua l 
 damages only, if it appears on the trial »t' the action, that t he 
 article was published in good faith, and that there was reaso n- 
 able ground to believe that the "same was tor tfie public benef it, 
 a nd It it did not invoiye a criminal charge, and if it appear s 
 that tEe publication took place in mistake qv miRnppvphpj^gimi 
 of the facts, a nd that a_fulj_an d f"ir rfit r"£tpjtic'Pj[if any state - 
 ment therein alleged to be en-oneous was j5ul»lished eitjier in 
 the_next TegTilnr isijut; o f th6~"newspaper, or nT'aiiy regular 
 i ^sue ther eof puMt slTM" WrtHin three days after the receipt of \ 
 such notice ^and was so published in as conspicuous a place and | 
 tyjie as was the article complained of, 
 
 (3) The provisions of this section shall not apply to th q Section not do 
 c ase of any libel against any candidate for a public office t^aoase*.*'' 
 in this ii'rovince, unless the retractation of the charge is made 
 editoiifl JlY ill a~ conspicuous manner , at least five days befor e 
 
 tlie election. R. S. O. 1887, c. 57, s. 5. " 
 
 !2 
 
 r 
 1 
 
 "7 
 
 7. A defendant, ui)on Hlin o - tlii> dcfi'iici^ in the ^recedi ng And ni.ay pay 
 section mentioned, may pay into Court a sinii of money Court n"' " 
 by way of ainends toi' tlie iniury "sustainetl l>y tlie ]niblica- ami'iuN. 
 tion of the libel, and su<'li payment shall be of the same 
 effect, and available to the same extent and in the same 
 manner, and be subject to the same rules and regulations as to 
 costs, and the form of pleading (except so far as regards the 
 additional fact.s horeinbefore iviiuired to be pleaded by the 
 iletendunt), as i)aymeiit of money into Court in other ca.ses ; 
 and to .such defince the plaintiff may reply geiu'rally, denying 
 the whole thereof. R. S. O. 1887, c!^ 07, s.' G. 
 
Chap. 68. 
 
 LIBEL AND SLANDER. 
 
 Sec. 10 (a). 
 
 air reports 
 of public 
 
 8 . — ( 1 ) A repoi't p ublished, in a ne vvspajer of the proceed - 
 
 ings of a_nuLuc mee lbi^ be p ilylEgeE, if the meeting 
 
 privileK'^' was lawfully convened for Tl iiA^ ul pv trpQ&e and .open to 
 
 the public, and if the report was fair and accurat e, and 
 
 Proviso. 
 
 tKemat- 
 ProviHecT 
 
 
 'A 
 
 publi slied without malic^ , and if the publication of 
 ter c omplained of was for the public IBenetit ; 
 always, that the protection intended to "he afforded by this 
 section shall not be available as a defence in any proceed- 
 ing, if the plaintiff can shew that the defendant has re- 
 fused to insfci-t in a newspaper in which the report containing 
 the matter complained of appeared, a reasonable le tter or state - 
 ment of explanation or contradiction by or on b ehalf of th e 
 plaintiff 
 
 Meaning of (2) The words " a public meeting" in this section shall extend 
 ;' public meet- ^q j^jjy lawful meeting to which the public ai-e invited, and of 
 ' ^ ' which announcement has been made by printed or written 
 
 notice thereof being posted up in at least six conspicuous 
 places in the municipality where the meeting is held, or by 
 advertisement in a newspaper published in such municipality, 
 or if there be none published therein then in the one published 
 nearest to the place of meeting. E. S. 0. 1887, c. 57, s. 7. 
 
 Rf port of 
 proceedings 
 in Courts 
 privileged. 
 
 po rts of proceedings in any Cour t of^ J ustice, ^p ub- 
 
 tee 
 
 blishe d in a newspaper shall be privltegecl, provided that they 
 are fair and~authentii! aiid Without comments, unless the de- 
 fendant has refused or neglected to insert in the newspaper 
 in which the report complained of appeared a reasonable letter 
 or statement of explanation or contradiction, by or on behalf 
 of the plaintiff. R. S. 0. 1887, c. 57. s. 8. 
 
 10. — (1) In an action brought for libel contained in a 
 newspaper, the defendant may, at any time after the filing 
 of the statement of claim, apply to the Court or a Judge 
 for security for costs, upon notice and an affidavit by the 
 defendant or his agent, shewing the nature of the action 
 and of the defence, and shewing that the plaintiff is not 
 possessed of property sufficient to answer the costs of the 
 action in case a verdict or judgment is given in favour 
 of the defendant, and that the defendant has a good defence 
 upon the merits, and that the statements complained of were 
 published in good faith, or that the grounds of action are 
 trivial or frivolous ; and the Court or Judge may make an 
 order that the plaintiff shall give security for the costs to be 
 incurred in such action, and the security so ordered shall be 
 given in accordance with the practice in cases where a plaintiff 
 resides out of the Province, and the order shall be a stay of 
 proceedings until the proper security is given as aforesaid. 
 
 (a) But where the alleged libel involves a criminal charge 
 the defendant shall not be entitled to security for 
 costs under this Act, unless he satisfies the Court 
 or Judge that the action is trivial or frivolous, 
 
w 
 
 Sec. 10 (1). 
 
 LIBEL AND SLANDER. 
 
 Chap. 68. 
 
 113 
 
 oi" that the .sevei'al circumstances wiiicli under 
 .subsection 2 of section G of this Act entitle the 
 defendant at the trial to ha\'e tiie damages 
 restricted to actual damages appear to exist, 
 except tlie circumstance that the article complained 
 of involves a criminal charge. 
 
 (2) For the purpo.ses of this section the plaintiff or the 
 defendant or their agents may be examine<l upon oath at any 
 time after the statement of claim has been filed. R. S. O. 
 LS87, c. 57, s. 9. 
 
 1 1. Ever}- action for libel contained in a newspaper .shall be Place oN4a' 
 tried in the county whei'e the chief office of such newspaper is, 
 or in the county wherehi the plaintiff resides at the time the 
 action is brought ; but upon the application of either partj' the 
 C<jui t or a Judge may direct the issues to be ti'ied or the damages 
 to be assess(!d in any other county if it ha made t(j appear to 
 bo in the interests of justice, or that it will promote a fair 
 trial, and may impo.se such terms as to tlu' payment of witness 
 fees, and otherwise as may seem proper. 11. S. O. 1887, c. 57, 
 s. 10. 
 
 I '-J. The following .sections of this Act shall only apply to 
 iHjwsE g'PCi''^ piinted for sale and published in this Provinc e, 
 but nothing therein contained sfiall be consti'ued as taking 
 away any right which a newspaper not published in the Pro- 
 vince may have under the preceding sections of this Act. 
 57 V. c. 27, s. 2 part ; s. 10. 
 
 Application of 
 following Rec- 
 tions of Act. 
 
 r 
 
 1 li. Every action for libel eonfained in a newspaper shall be Time within 
 - - - "■ - - ' =~ - - • which action 
 
 must be 
 bronprht. 
 
 commenced within tl iree montli| ^^ after the publication com - 
 plained of lias comiT'to tlie notice or knowledge of thn p er- 
 son det ained ; but^vhere an action is brought and is main- 
 tainable for any libel published within said period of three 
 months such action may include a claim or claims for 
 any other libel published again;^t the plaintiff by the defen- 
 dant in the same newspaper within a period of one year prior 
 to the conunencement of the action. 57 V. c. 27, s. 4. 
 
 1 4. — (1) It shall be competent for a Judge of the High Court 
 of Justice upim an appliciition by or on behalf of two or more 
 defendants, in any two or more actions for the same or substan- 
 tially the same libel, brought by one and the same por.son,to make 
 an order for the consolidation of such actions, so that they shall 
 1)0 tried together ; anil after such order has been made, and 
 before the trial of the said actions, the defendants, in Sny new 
 actions, instituted in respect to the same or substantially the 
 same libel, shall also be entitled to be joined in a common 
 action upon a joint application being made by such new defend- 
 ants and the defendants in the actions already consolidated. 
 H 
 
 \ 
 
 Coriaolidatioi 
 ot niltere nt 
 actions for 
 same libel 
 
 r^^ 
 
114 
 
 Chap. 68. 
 
 LIBEL AND SLANDER. 
 
 Sec. 17 (2). 
 
 \j0^ Evider 
 
 How aaraaee* (2) III a consolidated action under thi.s .section tlie jury 
 ""strr^*" shall asses.s the whole amount of the damajife.s, if any, in one 
 troned m "such .sum, but a separate verdict shall be taken for or against each 
 cftiM. defendant in the same way as if the actions consolidated had 
 
 been tried separately ; and if the jury shall have found a ver- 
 dict a<fainst the defendant or defendants, in more than one of 
 the actions so consolidated, they shall proceed to apportion the 
 amount of damages which they sliall have so found between 
 and against the saiil last mentioned defendants ; and the Judge 
 at the trial, in the event of the plaintiff being awarded the 
 costs of the action, shall thereupon make such order as he 
 shall deem just for the apportionment of .such costs between 
 and against such defendants. 57 V. c. 27, s. 5. 
 
 15. An order made under section 10 by a Judge of th e 
 High Court granti ng or refusin g secui'ity for costs in an action 
 fur libel contained i n a new spaper sh all be final and shall not. 
 Ee1nft)jcct~Eo"appeal , and where the order is made by a Local 
 Judge the same may be appealed from to a Judge of the High 
 Court sitting in Chambers, whose order .shall be final and shall 
 not be subject to appeal. 57 V. c. 27, s. 7. 
 
 10. Upon the trial of any action for libel contained in a 
 newspaper, the defendant .shall be at liberty to give in evi- 
 dence, in mitigation of damages, that the plaintiff has already 
 brought actions for, or has recovered damages, or has received 
 or agreed to receive compensation in respect of a libel or 
 libels to the .same purport or effect as the libel for which such 
 action has been brought. 57 V. c. 27, s. 3. 
 
 Order of 
 Judffe respect- 
 ing security 
 final. 
 
 Evidence in 
 mitigation uf 
 damages. 
 
 Joinder of 
 certain per- 
 sons as party 
 defendauta. 
 
 IT. — (1) In any action instituted for the publication in a 
 newspaper of any defamatory matter which has been com- 
 municated in writing by any person to such newspaper 
 with a view to its publication therein, t he defenda nt 
 may at any stage of the proceedings, upon notice " to such pe r- 
 son and an atiidavit veri fying the facts, apply to a Judg e in 
 chain bet's for airordei'3o'"i"g such person as a p arty deten^ - 
 ant in the action, and such person may be so juinetf on such 
 terms as may appear to beju.sb; and thereafter the defendant 
 in the action, who is charged with, the publication in the 
 newspaper of the defamatory matter complainefl of, may 
 claim in the action against the party so joined as aforesaid any 
 remedy over or relief to which, under the circumstances he 
 may by law be entitled against such party. 
 
 (2) This section- _;^hj41_ riot apply where the defama tory 
 matter was known by theclefcncr anl to be untru e, or was 'cofl- 
 tained in an anonymous communicaHM i: 57^. c. 27, s. W. ~ 
 
 
LIBEL AND SLANDER. 
 
 115 
 
 NOTES. 
 
 Newspaper A >rLiciintile Agfiicv slicet in a " nowspupcr printod for sal«;" 
 Slaltoiy V. liunii (IH'.IS), U C.L.J. hW ; IS I'.H. KiS. 
 
 Jury to be Judges of Law and Fact. Section -2 is tlio saiiu' in .xulistaiico as 
 Imix's Lilicl Art, :V2 (ii'i). Ill, c. !)'>, oxc('])t tliat that act in terms ap|)lics only 
 to criminal piocceding.s. Jn civil ])r(>ccc<lin(;s the practice always was the 
 same; Haylix v. Lawrence (1841), 1 1 A. * K. il'Jd. The jiulge delincs a lilic l 
 11, iini nf of law and leaves it to the hnv to .s ay wliet lier the p 'liiiii^aiion Ijtpf 
 ^JTm TThe definition ; I'armiter v. rouplaiul I1S4II). II .M. .t W. 10.'). WTTen 
 the words are not faniy susceptilile of a defamatoiv meaning the judge will 
 nonsuit; Hunt v. < ioodlake ( 1873), •2(1 L.T. 472. The test is whether inuler 
 the circumstances in which the writing was ])ul)lisheil, rcasonahle men to 
 wlioni the publication was made would lie likely to understand it in a lihellous 
 .sense; ('a|)ital and Comities Hank v. Hcnty (1H82), 7 App. Cas. 741, 74.5. 
 The |)laintitl' must .satisfy lioth the Court and jury that the wolds convey the 
 lihellous imputation charged; per Lord Ulacklunn, ih. at \h 771). If the words 
 ■ire c allable of the liliellous meanini; alh ixid. the case must, hi' su lfio"*'"'! *•' '!■" 
 jurvf; Huiier V. Crookall (IHk(i), 10 (). R. 47."). Tlie intention <if the defendant 
 is not material. The test is, what tlie un<Ur stan diiig of the partie s to whom 
 the iiulilicatioii is made would naturallv he under me circumstances of the 
 puiilication. .lohiLson v. Kwart (ISiW), 24 O.K. IKi. 
 
 Prefatory Averment. Before the (,'oiiiiiion Law I'roeedure Act (19 V. c. 43, 
 s. 110), if there were cireumstanees relating to the puiilication which it was 
 alleged caused the words to hear a more extended sense than they would other- 
 wise do, the law was that those must he stated on the record in order to enable 
 the Court to judge whether the words understood with reference to those cir- 
 eumstanees bore that nifire extended sense, or else those cireumstanees could 
 not he looked at in favor of the )ilaintitt', and great nicety was reipiired in 
 setting out those cireumstanees. My s. ,S it was not intended to alter the law 
 except as to pleading, and the (/ourt has exactly the same |)ower that it had 
 before, and if they are of opinion that if all which <()uhl be found u|)on the 
 evidence had been (lut on the record under the old system, the juilgment would 
 have been arrested, they shoiihl give judgment for the <lefeii<lant. I'er Lord 
 lilackhurn ; Capital and Counties Hank v. Henty (1882), 7 App. Cas. 772, 782. 
 
 Apology. Section 4 is substantially the same as s. 1 of Lord Camjibell's 
 Liliil .Vet (() & 7 V. c. OC)), and s. (i ( 1 ) i^ substantially the .same as the first 
 part of s. 2 of that ac't. l{<ith seetion.s mean llie .same thing as to the time of 
 pulilishing the apology; Uavenhill v. Upcott (18{iil), :W .1.1'. 2!MI. At the 
 earliest o|)|)ortuijity is to be eoiKstrued as meaning within a reasonable time, 
 the cir<ainistances of the case and the opportunities of the defeiKhmt to pub- 
 lisli it being considered ; Cotton v. Hcatty (18(iH), 13 C.I'. 243. .V party upon 
 whom it is iucuuilieiit to do a tiling within a rea.s.inable time duly fiillils his 
 obligation notwithstanding i)rotracted delay, .so long as sucli delay is attrilait- 
 able to causes beyond his control, and lie has neither aitted negligently nor 
 unreasonably; Hick v. R.iynioiid ( 18113), A. C. 22, 32. The (|iiestion whether 
 tlic apology had lieeii inserted within a reasonalile time is for the jury, and 
 wlu'ii^ an apology in a daily newspaper was not published until the declaration 
 was served six weeks after the first publication, the jury having found for the 
 (lefeuilant ami theri! being no evidence of malice oi' gro.s.v negligence, tjie 
 Court refused to disturb the verdict though of o|iiniiiii that the apologv was 
 too late; Cotton v. Hcatty ( 18()3), 13 C.P. 243. The apology must be" full, 
 though it need not be abject, and must be such as an iuiparti.il ])erson would 
 consider sutiicieiit under the circumstances. It should be iiutilished as far as 
 possible to the same persons as the libel and be made as ]iiiblicly as the charge, 
 and the defendant should do his utmost to slo]) the further publication of the 
 hhel. Risk Allah \k-\ v. .lohnstonc (I8(i8), 18 L.T. (120. It slumld be printed 
 ill onlinary type where it will lie seen, and not hidden away among the adver- 
 tisetiients, Lafonc v. Smith (18.")8), 3 H. & X. 73."). The ipiestion of sntliciency 
 is for tlie jury ; Risk Allah Hey v. .lohnstime ( 18()8), 18 L.T. 020. Ana|iology, | 
 
 imyiiient into Court and juslitieation maybe pleadeil together. Hawksley v. 
 {radshaw (188(i), .") <>).H. J). .302. If a suHicient a])oh)gy is made and accepted 
 after action brought, the plaintilV shouhl at once move for the coj.ls of the 
 action ; I'lastwood v. Henderson (18!»7), 17 I'.H. .")78. 
 
 Blander Imputing Unchastity. It is not sulKcicnt on an application under 
 s. .") for security for costs for a defendant to swear that he has a good defence. 
 Such defence must be sliown either by his atlidavit or by his croHsexamination 
 thereon and allidavits in reply cannot be received ; Lancaster v. Kyckman 
 (18!)3), l.-) I'.R. 19!). The onus is on the defeiuhmt to show that the jilaintiflf 
 has not sutticient property to answer the costs ; Feastcr v. Coonoy (18US), 15 
 
 r 
 
 1 
 
 c 
 
 % 
 
 \ 
 
J).M. 
 
 Notice of Action. In an action againsit a newspanoi notice of action 
 lUHUHsaiv unli'HS the lijul is on a candi.late for a i)ul)lu: otHc.e A iiotice a 
 (IroHHcl to till' filitor is";Jutli(ii'nl. Hmwcll v. London l<ree PreK« Co. (IHiti 
 
 llg LIHEI, AND SLANDER. 
 
 1' H -XKI Where the slaii(h'r cliarged was " yoii are a hlaokguard, you are a 
 ha.l woman '■ and the inuendo was unchastity and tlie defendant did not recol- 
 le<t ln« exact wonln, hut denied the meaning alleged, it was liehl tjiat he had 
 not siir)wn a good <lef.'n<e on the merits ; I'ahidino v. (iustin (189* ), 1/ 1 . K. 
 
 of action is 
 ad 
 
 „,„„„ .1H95), 
 
 «>7 () K () The plaint il^'sclaim will he contined to the .statementH complained 
 of ill the notice, ami aUcgations leferring to portion.^ not .speciHed will he.Htruck 
 out- Oheniicrv. Kohcrtsoii (IHlfJ), U 1'. K. .V).S : Hut in a .sulwe.iuent cane it 
 wa.s'held that iiaragiaphs as to wliicli a notice of action was iieees-ary could 
 Hit lie siiiiimaiily struck out ; Conmee v. Weidiiian ( 1«W), 1(5 I'.R. 239. 
 
 Actual Damages only. In an action against a newspaper actual damages 
 only can he recovered if. 
 
 (1) The article was puhlished in good faith. 
 
 (•2) Tliere was reasonahle ground to helieve it was for the public Ijenefit. 
 
 (.'{) It did not involve a criminal charge. 
 
 (4) lis puhlicatioii took place in niistaki^ or misaiiiirehciiHion of the facts. 
 
 (.">) A full and fair retraction took place in the next regular issue puhlished 
 within three ilays after the rcci^pt of the notice. 
 Payment into Court. I'rior to the .Judicature .Vet the law did not permit 
 payment into Court in actions of lihel exiteiit in action .or lihel contained -in 
 a iicwsjiaper : See Harii.son, C. L.P..\. 119 n. The defendants should state as 
 to what part of the cause of action the money is paid ; .Mac'kay v. Manchester 
 Press Co. (1X9*'), .'14 .7. P. ±i. If I lie jury find the damages at a less sum 
 than the amount jiaid in, the jjlaintill' is nevertheless entitled to the full 
 sum )iaiil in : Dunn v. Devon and lv\etcr Newsjiaper Co. (lH9,'i), 1 (^15. 211 n. 
 The ])laintiircaiiiiol withdraw the money and iiroceed for more; Harriss v. 
 Ariiott (lS9."i), 2+ 1..K. Ir. 4(14. The payment is not an admission of liahility ; 
 tToiies V. .Mackie (ISIIT), L.K. M Kx. 1. Xotwithstanding the conclndiiig words 
 of s. 7. the iilaintilf in his replv iiiav traverse oiilv so much of the jilea as may 
 he necessary; Barry v. Mc(irath (l,H(i9). ITW.k. 1(W. In Kiigland, except 
 under Lord '('aiiipheH's Act, payment into Court cannot lie pleaded with an- 
 other defence; Order .\'.\II. H. 1 : see Fleming v. Dollar (1H89), 2.S (^]}.l). 
 ,S8S ; Oxlcy v. Wilkes 1 1898). 2 Q.H. .")(). 
 
 Reports Of Public Meetings. Section 8 (I) '» *<i"iili"' t" Imperial Statute 44 
 & 4.") V. c. (id, s, 2 : see Odger on Lihel and Slander, 2iid Kd. STfilW.'t. 
 
 Reports of Judicial Proceedings. The only Kiiglish eiiuivalent for s. 9 is .31 
 & ,V_' V. c. ()4 (1888), tlie language of which is .somewhat diH'erent. At com- 
 nioii law fair reports of judicial proceedings are privileged, except ( 1 ) where 
 the Court has proliihitcd the puhlieation : Brook v. Hvans ( 18(i9), 29 L..J.CI1. 
 (il(i ; Levy v. Law.son ( 18.-)8), K. B. & K. 282 ; or (2) where the suhject matter is 
 an oh.scene or hlaspliemous lihel or the ]ir()cccdiiigs are otherwise unfit for 
 puhlieation ; Re Kvening News ( 188(i), a T. L. R. 2,")."> ; Steele v. Hrennan (1872). 
 L. R. 7 C.P. 2()I. Section 9 gives newspapers an absolute privilege, except 
 where they fail to insert on ]iroper ropiest a r( oiiable letter or statement 
 of explanation or contradiction. A report of cr fxtrh- ai)])licatioii for a 
 summons hefore a magistrate is privileged; Usill v. Hales ( 1878), .S C.P. 1). 
 319 ; Kiiiiher v. Press Association ( 189.S), 1 Q. B. ()."> ; but not of an observation 
 by a magistrate's clerk; Dclegal v. Highley (1837), 8 C. & P. 444; or of 
 matters outside the jurisdiition of the magistrate ; Mctiregor v. Thwaites 
 (1824), 3 !!.&('. 24. .V Parliamentaiy committee of iiii|uiiy is a Court of 
 Justice ; Kane v. Mulvaina (180(i), Ir. 2 C.L. 402. 
 
 The report need not be verbatim ; Hoare v. Silvcrlock (1850), 9C.B. 20; 
 Andrews v. Chapman ( 18(i3). 3 Car. & K. 28(i. A report of the judgment alone 
 published l.niin liili- and without malice is privileged ; MacDoiigall v. Knight 
 (188(1), 17 (,).B.D. (i3(i ; 14 Aiiji. Cii.s. 194; .MacDcuigall v. Knight (.\o. 2) 
 (1,890), 2"i O.B.D. 1. A statenient of counsel alone without the evidence: 
 Saunders v. .Mills (1829), (i Biiig. 213 ; Kane v. .Mulvains (18(i()), Ir. R. 2 C.L. 
 402 ; or a 'iglily colored account with observations, conclusions and insinua 
 tioiis : Stvles V. Nokes (18(Mi), 7 Kast 493 : or the result of the evidence: 
 Lewis V. Walter (1821), 4 B. & Aid. ()(».■> ; 23 R.R. 41.") ; or an unfair comment ; 
 Risk Allah Bey v. Wliilehiiist (I8(i8), 18 L.T. (il "1 ; or a libelhms heading, 
 Lewis v. C;iemeiit (1821), 3 B. k Ahl. 792, is not a fair reiKirt. 
 
 It is a question for the jury whether the report is fair ; Turner v. Sullivan 
 " " '■ L.T. 130 ; MilisHich v. Llovds (1877). 30 L.T. 423. 
 
 f 
 
 (1862), 
 
MHKI. AND SLANPEli. 
 
 117 
 
 Security for Costs. Where the action is for a, Iil)el cuiitaiiiud in a newspiijicr 
 
 licit involving a (Tiniiiial lOmrgu the defcnehmt is cntilh'd to Nocurity for costs 
 n]Mni allowing : — 
 
 (1) The nalin-e of the action ami defence. 
 
 (2) That tlic phiintirt' lias not sufhcient property to ensure the costs of 
 defence. 
 
 (8) That lie has a g(K)d defence on the merits. 
 
 (4) Kither that he has a good defetice on the merits, or that the grounds of 
 action are trivial or frivohius. 
 
 If the libel inv<ilves a ciiminal charge the defendant must show in addition 
 to the three Hrst mentioned facts either that tlic actionis trivial or frivolous, or 
 that the aiticle was pulilished in good faith, and that there was reasoualile 
 "round to believe it was for the puM" lienetit, and that the puhli' ation took 
 place in mistake or misai)prehension of tlie facts, and that a full and fair 
 retraction was made in pro]>er time. 
 
 SufSctent Property. The onus is on the (h^fendant to show that the plaintitl' 
 lias not sullicicMt pro])erty. Where |)laintitl' swore he had property to the 
 extent of .ssftt), i.ver debts : Bready v. Kob"rtson (ISidl) 14 P. K, '~ : where 
 plaintitl showed she hail property to the value of .'iN)(KI over exemptions, and 
 it not apnearing she owed any debts ; I'Vaster v. C'oonej- (!*<'*'<) 1"> !'■ K. -!M» ; 
 and where plaintiir had an eipiity of redemption to the extent of .Sti(K( (at his 
 own \nicontradicted valuation) in mortgaged real estate ; Helair v. Buchanan 
 1897) 17 I'. H. 413, 47<) tlie defendant was not entitled to security. 
 
 Good Defence on Merits. If the ilefendant shows a jiritinifitric defence, e. g. 
 a fair report of judicial ])roceedings or privilege, or justiticatioii, the statutt^ is 
 satisfied ; Swain v. Mail I'rintingCoiiipany ( 1S!)4) l(i I'. K. 1.T2, and tlie merits 
 of the case are not to be tried ujion the application : ib. ; Lancaster v. Hyckman 
 (IS!).'!) !."> P. R. 19!); nor will atiidavits in answer fiom the iilaintitf be received; 
 il). Hartram v. London Free Press Printing Co. ( 1S97) ISP. H. II. But where 
 a libel referred to the plaintitl, and the defendants did not show anything but 
 a denial of the charge of defaming the plaintitl', scciiritv was refu.sed ; Lennox 
 V. Star Printing Co. (lH9r>) l(i P. K. 488, and see Palailino v. (;ustiii (1897) 17 
 P. R. t").j;l ; xiij/ra, but no nice (pu'stion of law or any reasonable fact in con- 
 troversy going to the root of the action should lie determined : Southwiek v. 
 Harc(18!n) l.") P. R. 222. 
 
 Criminal Charge. As a <()rporation cannot be guilty of a crime involving 
 malice or the intention of the oflender, a charge of bribery against the coriior- 
 atinn is not a "criminal charge" so as to free it from the liability to give 
 security ; (Jeorgian Hay Slii|i('anat (Jo. v. World Xewspajicr Co. (18''*) Hi P. 
 R. ;12(I ; but a charge of lilac^kmail against an individual is a criminal charge, 
 Miu,l)oiial(l v. Woild New.spaper Co. (1894) l(i P. R. .-124. Calling the 
 plaiiitillan "unmitigated scimndrel " is not a criminal charge; Bennett v. 
 Knipire Printing (,'o. (1894) l(i P. K. (i.S ; where tlie worils ;«c vc do not involve 
 a criminal charge or are not defamatory, but tlie iniiueiulo .'liargol is that 
 a criniina! otl'ence was intended, securitv will be refused, Smyth v. Ste])heiison 
 (1897) 17 P. R. .S74. ' . 
 
 Trivial or Frivolous. Where it was shewn that the article did not lefcr to 
 tlie ])laiiitifr, the action was hehl to be frivolous; (iraeme v. (ilobe Printing 
 Co. (189(1) 14 P. R. 72. The Ccnirt cannot infer that the acti(m is frivolous 
 becau.se a good defence is shown and there is no allidavil liv the plaintilf deny- 
 ing the charge ; MaeDonald v. World Newsi>aper Co. ( 1894) l(i ]'. R. 324. 
 
 Limitation, The day on which the iiuliliiation comes to the notice or know- 
 ledge of the plaintill' will Ih' excluded in the com])utatioii of the three months 
 nieutioned in s. i;i ; Haiins v. .lohnston (I88;l) ;( (). R. PHI. 
 
 Consolidation of Actions. Sections 14 and Ki are taken fiuni Imperial Statute 
 ."d and .")2, v., c. (14, ss. .■) and (>. The order for consolidation maybe made 
 before the defences are delivered; Stone v. Press Association (1 897) 2 (1 B. 
 159. 
 
 Finality of order for Security. It is only when the order granting oi- refusing 
 sci'urity is made in an action against an Ontario newspa))er by a .Indgo of the 
 High Court that it is tiiial. An order of the Master in Chambers or of a Local 
 Judge may be appealed from to a Judge in ("hambers ; Ilolmsted &, Langton 
 p. i:i2(i. ^ *' 
 
 Remedy Over. The concluding portion of s. 17 (1) is diHicult to understand, 
 there is no right to inilemnity for publishing a libe' and a contract express or 
 nuplied for such indemnity i.s\oiil ; Odger on Libel 2nd. Kd. p. 8. 
 
 r 
 1 
 
 C 
 

 \ 
 
 CHAPTER 69. 
 
 An Act respecting the Action for Seduction. 
 
 HKR MAJJISTY, by and witli the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 Action wlicii 
 iiiaintainalili 
 by f vthiT ( 11- 
 muther. 
 
 I. The fath er or, in case of his death, the juothei- (whether 
 she remains a widow or remarries) of any unmarried 
 female who has been seduced, and for whose seduction 
 the father or mother could maintain an action incase such un- 
 married female was at the time dwelling under his or her pro- 
 tection, may maintain an action for the seduction, notwithstand- 
 ing such unmarried female was, at the time of her seduction, 
 serving or residing with another person, upon hire or otherwise. 
 R. S. 0. 1887. c. 58, s. 1. 
 
 Proof of Ber- f^. Upou the trial of an action for seduction brought by the 
 wUh. "*''*'"*"'' father or mother, it shall not be necessary to prove any act 
 
 When action 
 maintainable 
 by master, 
 etc. 
 
 i 
 
 in all cases be presumed, and no evidence shall be received to 
 
 of service performed by the pers on seduced. but the same shal l 
 in ail cases b( ~ _ 
 
 the contrary; but incase the father or mother of the female 
 seduced had, before the seduction, abandoned her, and refused 
 to provide for and retain her as an inmate, then any other per- 
 son who might at Common Law have maintained an action for 
 the seduction may maintain such action. R. S. 0. 1887, c. 58, 
 8. 2. 
 
 Wliere father 
 or mother not 
 resident in 
 Ontario. 
 
 li. Any person, other than the father or motlier, who by rea- 
 son of the relation of master, or otherwise, would have been en- 
 titled at Common Law to maintain an action for the seduction 
 of an unmarried female, may still maintain such action, iLtliP 
 father or mother bft nf)t res ident in Ontario at the time of tlie 
 birth of the child which is boi'n in consequence of the seduc - 
 tion, or being resident there in d oes not bring nri action for tli^ 
 seduction within six months from the birth of the child. 
 R. S. U. 1887, c. 58, s. 3^ 
 
 
 iXU, 
 
 ^fc-w<x. 
 
 h 
 
 MajA. »'**JL ^nr.*^Z^ 
 
 g. "^ 
 
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 A .«««l».^ 4« 
 
 c.^ ^ *■'/ *'***7 A't'****^ 
 
 tfV^ *^ itCu tC»*>4^ 
 
 iJjbtZ 
 
 't ^t*4^ ^«A«d<A4^2L«V, , 
 
 OfXZn^ 6<6biJt«C »>"Ufc«^ <<• ^♦^n. *v^ 
 
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 «c<. 
 
 y* 
 
 '*g:^^<. t^ tiM^ ^t^.,u^[ns] 4" 
 
 jTl. 
 
 Ayyy^tAM. 
 
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 l^t "y-QiC** » ^ r»i " '■ '*««^v. 
 
 <« i*%, m 'OI/%AiLUt 
 
 
SEDUCTION. 
 
 119 
 
 
 utxoC 
 
 ^n. 
 
 NOTES. 
 
 Father may bring action. I'lif right of actiim at cniiiiiioii law i.s liasrd upon 
 the loss of Hciviit' (if the plaint itls HiTvant coiisoiiiu'nt upon a wrongful act of 
 till' ilcfi'Uilai'.t. It waH tlicrcfoii" nect'SHaiy that the fi-nialc Hi'duwd hIiouIiI lie 
 thi' servant <if the |)laintirt' at the tinic of the si'duction ; Davicw v. Williams 
 (1S47) 10 (^15. l-2r> ; Hi'dgfM V. Tagg (IHT2) 1.. K. 7 Kx. ^X'.l S. I alt«'in the law 
 i)V giving tliiMight of notion to the father notwithstanding the fait that she 
 i.s Hot at the time of the seduetion his Hervant. The master cainiot liiing an 
 nctiiiM unless the fathef omits to do so for six months fiom the liirth of the 
 ehilil : Whitfield v. 'l'odd(l,S44) I U.C.H. L>-J:? ; Cross v. Coodman (ISdU) 'J(» 
 U.C. U. 24-2. 
 
 re 1|\ nig at the liu u 
 ~n even ;fiiiii[Mi~r' 
 
 of 
 
 Or In case ot hlB death the mother. If (he falliei' 
 the seilii ilion t he act gives th e mother ijo iil'Ii^ qI a 
 
 i Teforc the Imth Of Ihl*^ t'llll M ! Smart T. Hay(l^ll-') 12 ('.V. .'i-'S ; mid if tin 
 father ilu' after IWi^ {HHRI! of llie writ, the right of action does not survive to 
 the MKither: Healey v. Crummer (1801) 11 (;.!'. ,V27. 
 
 Mother's rights. Where the seduction takes place after the death of the 
 father (he statute gives the right of action to the mother if the daughter was 
 then " serving oi' residing with another person on hire or otherwise." It was 
 ni t ncces.sarv for (he statute to lii yc n |j[>li' "f 'il tioii to either (he faduMo i 
 niotlicr It tde daughter were scrvingor resid ji n; wi tli tlwni 'I' lijs liL'lit i xisted 
 l it coiiiiiion law : Mogan v. Aikinan (IS70) .SO tJ.C'.H. 14, 20. If the seduction 
 takes place before the mother's remarriage, slie is the proper person to hring 
 the action, Kelly v. Hull (18(i4) 23 U.tJ.H. 27S. If the nu)ther has leniarried 
 and the daughter lives with her and the stepfather, she is not residing witli 
 " another"" within the Statutes and tlie stepfather mav maintain the action 
 as at common law, and witliin the six monlhs from the tiirth of the child, Mc- 
 intosh v. Tvhurst (lS(i.-)) 24 U.C. 11. 44:i ; Smith v. Crooker (18(13) 23 U.C.R. 
 84; (ireen'v. Wright (18().->)24 U.C. R. 24"), and the mother eaniiot .sue; 
 Waters v. Powers (18(59) 29 U.C.R. 336, hut (iimerc see Meyer v. Hell (1887) 
 13 O.K. 3.') ; if the daughter, however, is residing with "another" the mother 
 may hring the action, Hogan v. Aikman (1S70) 30 U. C. R. 14 ; .Meyer v. Hell 
 (1887) 13 O.K. 35. 
 
 Unmarried Female. A widow is not an iinniarricd female. Kirk v. I.rfiiig 
 (1858) 7 C. 1'. .S(i3 ; Anderson v. Ramiie (18(i2) 12C.P. 53(5; hut at common 
 law an action may he maintained even for the seduction of a married woman 
 who is the servant of thi^ phiintitland lier evidence to shew non-access of hi'r 
 huslmnd is sutficient, Mulligan v. 'rhomp.son (1892) 23 O.R. 54. 
 
 Illegitimate Child. Neither the father nor mother of an illegitimate chihl 
 have any right of action under the statute ; an action hy either of them would 
 he governed 1)V the eomnuni law rules, Higgs, v. Hurnliam (1844) U.C. R. 1()*5 ; 
 Muckleroyv. Hurnlmm (1842) 1 U.C.R. 351 ; Hieksv. Ross (18(55)25 U.C. R. .lO. 
 
 Service Presumed. The 
 
 action from one resting on 
 
 stat ute has virtually cliaimed the nature of tl ie 
 "" elation ot mastei' and servant to tliat of piirent 
 
 and cli jlil ! Lllku v. HuKllm (1H.4) 4 CT. 4SII. it is not necessary that the 
 ilaugliler should he liviii; vith the parent at the time the illness occurred ; Har- 
 rison V. I'rcntice (1897) 24 A.R. (577. 
 
 Loss of service must be shown. Although it is not pcrmissihle under the 
 Statuti' to disprove tliat tlie daughter performed no service for the plaintiff, it 
 is .still necessary to show that either pregnancy or illness followed the seduc- 
 tion, sutiicient to interfere with the service wliich is presumed to hcduetotlie 
 father or mother; Kimhall v. Smith (1849) 5 U. (.'. K. 32; L'E.sperance v. 
 Duchene (1851) 7 U.C. R. 14(5; Westaeott v. Po\voll(l8(54) 2 K. & A. 525 ; Har- 
 rison V. I'rentiee (1897) 24 A.R. (577. 
 
 Abandomnent of Daughter. Mere ahaiidonineiit w ill not deprive the parent 
 of the right of action unless perhaps, where the riglit ofactiim has vested in 
 mime other per.son, ■Fames v. Hawkins (1875) 25 C.R 34(1; Hogan v. Aiktimn 
 (1870) 30 U.C.R. 14,21. 
 
 Absence of Father trova Ontario. The absence of the father from Ontario 
 dot.; :iot dei>rive him of his right of action, Croniie v. Skene (18(59) 19C.1'. 328. 
 
 r 
 
 1 
 
 c 
 
120 
 
 SVDUCTION. 
 
 Actions by Masters under Sfcc. 3. Wliero a niother hriiigs an action liy reason 
 of tlif falliiT ii'siiling (lilt of llie piovim-e she must prove the rehitionship of 
 servant and loss of service as at coininon hiw ; (iould v Krskine (ISOl) '20 0. 
 R. ;UT. and the sanit! lulc applies to hrotheis or persons In lorn juire.iiti.i JTc- 
 Kay V. Unrle.v ( Won) 18 U.C.R. -'.")1 ; raterson v. Wih'ox (1S70) "iO C.I'. .Tm ; 
 Tweedli(^ v. Hoj. -' (1H77) -7 C'.l'. .")()1 ; hut sljgiiter evidence of the relationship 
 of servant will l)e sutiicient, and the damages will not he confined to the 
 mere loss of service ; .Ahernetliv v. Mcl'herson (lH7(i) "iH (.'. I'. .TKi; Straughan 
 \ HmiUi (ISIIO) 1!)().K. ,mS. 
 
 When parent's right of action complete, .a complete case of action accrues 
 to tlie ])arcnt when pregnancy or illness follows the sednction and an action 
 may he liroiight hcforc the liiVtli of (he child ; Westacott v. Powell (1804) 2 E. 
 A. .V2.5 and the right will not i)c di'-^'sted hv the daughter's marriage hefore 
 the hirth of the chihl, Kvans v. Watt (1H83),'2 O.K. 1()(). 
 
 Pleading. It is not neces.sary to allege tliat the action is hrought under the 
 Statute; McLean v. Ainslie (18.Sil) .") ().S 4,*>(i. In actions hy the niother, 
 persons /» /oco /«((•' H^/< or mastci-. ; he death of the father or his ahsence or 
 failure to liring an action need not he alleged liy the plaintifi', hut if intended 
 to he relied oii inust lie ])lcaded !)V the dcfendaiit, Kelly v. Mull (KS(i4) -i.S U.C. 
 H. -278; N'ickells V. (ioulding (isiil) 21 U.(.'.K .%(i : Kord v. (iourlay (1878) 
 42 U.C. K. oo'J, and >vhere a defendant .set up that the cause of a<'tion was in 
 another, hut did not aver that that other sought to proceed hy action, it was 
 h"hl that vho defence conhl not \h' struck out; Daley v. 15vrne (1802) 1.") 
 P.K. 4. 
 
 Abatement. l'"oriMerly a cause of action for seduction did not pass to the 
 per^ ■ .al rcpic.-<r:itative of the ])arent oi- party injured ; Hall v. (Joodnicn (ItoO) 
 lOt'.P. 174, Udv V. Stewart (18.'l()) IOO.R'. .■>!ri 'mt now the cause of action 
 survives; R.S.(7" (1897) c 129, s. Id. 
 
 T 
 
CHAPTER 88. 
 
 An AcL to protect Justices of the Peace and others 
 from Vexatious Actions. 
 
 Malice, etc., when to he alleofd 
 in actions a11..in.st justices, 
 
 ETC., SS. 1, 2. 
 
 Ai'i'LicATioN O!' Act, s 1 (2). 
 
 WllEHE CONVICTION BY ONE JUSTICE 
 AND WARRANT THEREON BY AN- 
 OTHEK, ACTION TO BE AOAINST 
 
 uoNvicTiNd Justice, s. 3. 
 No Action to lie — 
 [iefore c invictioii is <jU!ished, 4. 
 Whurt'WJUTant after suintiions, not 
 
 followed by conviction, etc.,s. 5. 
 Whore Justice acts under order 
 
 of a Judge, s. (5. 
 After conviction attirnied on ii\>- 
 
 peal, s. 7. 
 Where Act done under Statute 
 
 held to be ultra Kirs, etc., 3. 8. 
 
 Defects in form not to prevent 
 Justices from claiming pro- 
 tection, 8. 9. 
 
 Action where offence not pro- 
 perly OKSCRIBEl) IN inform- 
 ation OR warrant, s. 10. 
 
 Condition on quashing convic- 
 tion, s. 11. 
 
 Setting pkoceedings aside, s. 12, 
 
 Limitation of actions, s. 13. 
 
 PuocEUURE IN actions, ss. 14-22. 
 
 Protection of per.sons obeying 
 WRIT OF mandajus, 8. 23. 
 
 action NOT TO lie FOR CERTAIN 
 MISTAKES AS TO JURISDICTION, 
 S, 24. 
 
 HER MAJP:STY, i.v^ ml with the advice and consent of the 
 Legislative Assembly ot the Province of Ontario, enacts 
 as follows. — 
 
 '3^^ 
 ^ 
 
 r 
 
 c 
 
 I. — (1) In case an action is brought ajiainst a Police 
 Miigistiato or other Justice of the Poac'3 fur any act done 
 by liim in the execution of his (.li ity. as -uch Ju.stice, with 
 respect to any matter witbin his jurisdiction as such Justice, 
 or against any other otticer or persnn fulfilling any public 
 duty, lor anything by him done in the performance of sncli 
 public duty, whether such duty arises out of the Conunon 
 Law or is imposed by any Act eitlu'r of the Imperial or 
 Dominion Parliaiiicnt, or of the Legislature of this Province, 
 it.shaUbe expressly alleged in the stateiiicnt of ''l ain\ tha t _the 
 act w as ~tl(nie WalidOusl y and w i thout reasonable and prol t- 
 ttble _ cause ; and If "at 'tlie trial of the action, the plaintiff 
 fails to prove such allegation, he shall be non-suited, or a 
 verdict or judgment shall be given for the defendant. 
 
 (2) So far as ajiplicable, .sections i to 2.'i of this Act shall 
 apply tor the ])rotection of every otHeer an<l person mentioned in 
 the preceding subsection, for anything done in the execution of 
 Ids ortice as therein expressed. R. S. 0. 1887, c. 73, s. 1. 
 
 [121] 
 
 When malice 
 and want 
 of probablti 
 oaurie must be 
 alli');ed and 
 proved. 
 
 ^1 
 
 Application of 
 BB. 1-23 to cer- 
 tain utiicerH. 
 
m 
 
 122 
 
 Sec. 6. JUSTICES OF THE PEACE— PROTECTION. Chap. 88. 
 
 When action 
 lies without 
 AlleKation of 
 malice, etc. 
 
 *i. B'or any act done by a Justice of the Peace in a matter 
 in which by law he has not jurisdiction, or in which he has 
 exceeded his jurisdiction, or for any act done under a con- 
 viction or order made or warrant issued l>y the Justice in 
 such matter, an}- person injured tliereby may maintain an 
 action against tlie Justice in the same case as he might have 
 done before the passing of this Act, without making any 
 allegation in his statement of claim that the act complained of 
 was done maliciously and without reasonable and probable 
 cause. R. S. O. 1887, c. 73, s. 2. 
 
 ii'; 
 
 If one .luHtice 
 nmkes a, con- 
 viction, etc., 
 and another 
 griants a war- 
 rant, action 
 iiiust be 
 against the 
 former. 
 
 JJ. Where a conviction or order has been made by a Justice 
 of the Peace, and a warrant of distress or of commitment 
 has been granted thereon by some other Justice of the 
 Peace, bona fide and without collusion, no action .shall be 
 brought against the Justice who granted the warrant by 
 reason of anj^ defect in the conviction or order, or for any 
 want of jurisdiction in the Justice who made the .same, but 
 the action (if any is brought) shall be against the Justice who 
 made the conviction or oi-der. R. S. 0. 1887, c. 73, s. 'i. 
 
 No act ion 4. No action as mentioned in this Act shall be brought 
 
 ,'iilili!^'"*^ for anything done under a conviction or order until the con- 
 a- rmrPTt tion or viction or order has been quashed, either upon appeal or upon 
 "' iih! is "*^'^ '^'"' ^''plication to the High Court ; nor shall any such action be 
 IqtiaStied. bt -ught for anything done under any warrant issued by such 
 
 ' Justice to procure the appearance of the party, and which has 
 
 been followed by a conviction or order in the same matter, 
 until the conviction or order has been (juashed as aforesaid. 
 R. S. O. 1887, c. 73, s. 4. 
 
 ' No action 
 foranytliin^ 
 done under a 
 warrant to 
 compel ap- 
 poaranue, if 
 a .iuninionH 
 
 1 previously 
 
 I served and not 
 
 N obeyed. 
 
 a. In case the last mentioned warrant has not been followed 
 by a conviction or order, or it is a warrant upon an infor- 
 mation for an alleged indictable offence, if a summons was 
 issued previously to the warrant, and the summons was .served 
 upon such person, either personally or by leaving the same for 
 him with some person at his last or most u.sual place of abode, 
 and he did not appear according to the exigency of the sum- 
 mons, in such case no such action shall hv maintained against 
 the Justice for anything done under the warrant. R. S. 0. 
 1887, c. 73, s. 5. 
 
 
 If a justice re- 
 fuses to do any 
 act, the High 
 Court 
 
 or the County 
 Judue may 
 iirder him to 
 do it, and no 
 action Rhnll 
 then lie 
 lagainst him 
 fordoing it. 
 
 0. In all cases where a Justice of the I^eace refuses 
 to do any act relating to the duties of his office as such 
 Justice, the party re(|uiring the act to be done may, 
 upon an athdavit of the facts, apply to the High Court 
 or to the Judge of the County Court of the county or 
 united counties in which tlie Justice resides, for an 
 order ri{ni calling upon the Justice, and also the party 
 to lie artected by the act, to nhow cause why the act 
 
^ 
 
 Afnses 
 
 such 
 
 may, 
 
 Court 
 
 ity or 
 
 |jr an 
 
 inrty 
 
 10 RCt 
 
 ky. 
 
 Chap. 88. JUSTICES OF the peace — PROTECTION. Sec. 6. 123 
 
 should not be done ; and if, after due service of the order, good 
 cause is not shown against it, the Court or Judge may make the 
 same absolute, with or without or upon payment of costs, as 
 may seem meet, and the Justice, upon being served with 
 the order absolute, shall obey the same, and shall do the act 
 required ; ami no action or proceeding shall be commenced or 
 prosecuted against the Justice for having obeyed the 
 order and done the act required as aforesaid. R.S. 0.1887, 
 c. 73, s. G. 
 
 1. In case a Justice of the Peace has granted a warrant of After convic 
 distress or a warrant of commitment upon any conviction or *'^"^' ^'^■- • '^"^"' 
 order which, either before or after the granting of the warrant ppal, no .action 
 has been confirmed upon appeal, no action .shall l)e brought '"'■'^ f*"' "" 
 against the Justice by reason of any defect in the conviction a warrant, 
 or order for anything done under the warrant. R. S. 0. 1887, 
 c. 73, s. 7. 
 
 8 — (1) No actio n :<hall _be^ brought against any Judge, Protection to 
 Stipendiary or Police MagistrateTTusjK?^ of the Peace, or officer, 'ho^e ivctinpr 
 for any act or thing by him dope--tfrider the supposed authority rn-crstatutes 
 of a statute or statutory:, provision of the Province, or of the 
 Dominion of Canatlai Wnich statute or statutory provision was 
 beyond the legii^Iiitive jurisdiction of the Legislature of the 
 Proviiice^xHTof the Parliament of Canada, as the case may be, 
 proyi^ll;:! the action would not lie again.st him, if th e 
 statute jpjlIsi8jtlltiflf.yIp£flvigton h ad been within the legis la- 
 tive jnri.sdictinn gfJJ^fi^ Parliament or Legi-slature, w hich assumed 
 to enact tl.e same. 
 
 (2^ Where, notwithstanding the above subsection, an action Cases where 
 is sustainable against a Judge, Stipendiary or Police Magis- above does 
 trate. Justice o^ the Peace, or officer, for any act or thing by Sctionr*"* 
 him done underthe authority of a statute,or statutoryprovision, 
 of the description in the said subsection mentioned, the action 
 shall only be .sustainable subject to the like provisions as the 
 action would be subject to if the statute or statutory provision 
 were valid ; and the like damages, and no more, shall be 
 recoverable in such action as under the like circumstances 
 could have been recovered if the statute or statutory pro- 
 vision had been valid. R. S. 0. 1887, c. 73, s. 8. 
 
 9. ISo defect in form , in an information or warrant take n Defects in 
 
 bjd:k''fi_iir^ign^dby a Ju stice of t he Peace, shall prevent the J"'"' "^ '"• 
 
 Jiiatia^fcom claWngTl^ anT'pH tBHron of this A.H if [i^rrantrnor 
 
 the Court before whicn", or {KoTuTjge befofe whom, the action is *" i'<i'vent 
 JuRticts from 
 
 ^^fiichj J^tT)e_s^ame~ROT ael tortli in propi 
 
 information or warrant. wougTiavcTjeen one wTuf 
 
 ler form in'The 
 
 ^ _ , Tin the jurisdi c- 
 
 ^.'£iL*^^_l'^^*-' Justice ; and in suelT caSe the inforihant or com- 
 
 S 
 
 c 
 
124 
 
 Sec. 15. JUSTICES OF THE PEACE — PROTECTION. Chap. 88. 
 
 Actions when 
 information 
 does not con- 
 tain a proi)er 
 description of 
 the offence. 
 
 plainant .shall be liable to prosecution, as if the information 
 had charged in proper form the commission of the offence so 
 intended to be charged. R. S. O. 1887, c. 73, s. 9. 
 
 10. No person who has in good faith ns aforesaid intended to 
 charge another person, who has been arrested by the 
 direction of the person so charging the said offence, under 
 a warrant signed by a Justice of the Peace, with the com- 
 mission of any offen je, .shall be liable to be sued for a trespass, in 
 consequence only of the information sworn before a Justice of 
 the Peace, or the warrant signed by him not containing a 
 proper description of the offence. R. S. 0. 1887, c. 73. s. 11. 
 
 Condition on i 11. Where an order is made by the High Court qua.shing a 
 quashing Uummary conviction the Court may, if it thinks fit .so to do, 
 irovide that no action for a trespass shall be brought against 
 the Justice of the Peace who made the conviction. R. S. O. 
 1887, c. 73, s. 10. 
 
 F ny action 12. In case an action is brought, where by this Act it is 
 is wrought con- g^^(,jg(] that no action shall be brought under the particular 
 Act, JiKlge circumstances, a Judge of the Court in which the action is 
 "he^nrr'e^^*' P^^i^f^i^S shall, upuu appHcatiou of the defendant, and upon an 
 affidavit of the facts, set aside the proceedings in the action, 
 with or without costs, as to him seems meet. R. S. 0. 1887, 
 c.73,s.l2. 
 
 the proceed 
 ings 
 
 Limitation of 
 actions. 
 
 13. No action .shall b e broug ht against a Justice of the 
 Peace ^nv anything do ne by him in t h e execution o f his oftic c 
 unless the same is commencecrw ItHin~st x montl^ next alte r 
 the ac t complai ned of was committed . R. tS. G. 
 c. 73, S.T3. ' ■ 
 
 rm, 
 
 Notice of 
 action to be 
 given, 
 
 1 4. No such action .shall bo commenced against a Justice 
 of the Peace until one month at lea.st alter a notice in writin g 
 of the intended action has been delivered to iiim, or left Tor 
 him at his usual place of abode, by the per.son intending to com- 
 mence the action, or by his solicitor or agent, in which notice 
 the cause of action, and the Court in which the same is in- 
 tended to be brought, shall be clearly and explicitly stated ; 
 and upon the back lli^rcof shall be entlorsed the name and 
 place of abode of the pcmon intendin g to s u^,and alscTthe name 
 and jdace of iibode or of business of his solicitor or agent, if 
 the notice is served by thi. .solicitor or agent. "1.8. 0.1887, 
 c. 73, .s. 14. 
 
 I'hue of trial. 15. Every such action shall be tv'ed ;n the county where 
 the act complained of was committed, and if iirought in a 
 County or Division Court, the action shall be brought in the 
 Court of the county or division within which the act com- 
 plained of was committed, or in which the defendant reHides,Hnd 
 
 Defendant 
 may pload 
 not (fiiilty 
 by otAtute. 
 
Chap. 88. JUSTICES OF THE PEACE — PROTECTION. SeC. 15. 
 
 125 
 
 the defendant may plead n'jt 
 trial of the action, give any 
 or ju.stilicati()n in evidence 
 
 statute, and may, at the \ 
 
 trial of the action, give any special matter of defence, excuse ) 
 R. S. O. 1887, c. 73, s. 15. > 
 
 Hi. No action shall be brought in any County or Division Action not to 
 Court against a Justice of the Peace for anything done by him ^ounty^df ^j. 
 in the execution of his office if the Justice objects thereto ; and vision Court, 
 if, within six days after being sarved with a no< ce of the if the Justice 
 action, the Ju.stice, or his solicitor or agent, gives a written 
 notice to the plaintiff in the intended action that he objects to 
 being sued in such County or Division Court for such cause of 
 action, no proceedings sliall afterwards be had in such County 
 or Division Court in the action, but it shall not L'^ neces- 
 sary to give another notice of action in order to sue the Jus- 
 tice in any other Court. R. S. 0. 1887, c. 73, s. 16. 
 
 17. In every such ca.se, after notice of action has been given Tender ami 
 as aforesaid, and bfifoie jin action has be e n commenced, the {^"',f"r^."j*„y,^ 
 Justice to wh om the no tice has been give n inay tender to the Court by 
 [jerson complaini ng, o r toT^is solicitor or agent, such sum o f Justice. 
 money as Tie Thinks tit as amends f or the inj ur y complained of 
 ijLjJifiIHStiCE~;^"ini3''aTler the action has been commenced, and 
 
 at any time before issue joined therein, the defendant, if he 
 has not made a tender, or in addition to the tender, may pay 
 into Court such .sum of money as he thinks tit, and the tender 
 and payment of money into Court, or either of them, may after- 
 wards be given in evidence by tiie defendant at the trial 
 under such defence of not guilty. R. S. O. 1887 c. 73, s. 17. 
 
 18. If the jury (or the Judge, if the cai;e be tried without K Judge or 
 a jury) at the trial be of opinion that the plaintiff is not en- pjaniti""en- 
 titled to damages beyond the sum so tendered or paid into titled to no 
 Court, a verdict or judgment shall be given for the defendant, and |e8,**verd'io"'" 
 the sum of money, if imy, so paid into Court, or so much to be for 
 thereof as is sufficient to pay oi' satisfy the defendant's costs in '^''f'^ndant. 
 that behalf, shall thcieupon be paid out of Court to him, and 
 
 the residue, if any, shall be paid to the pluintitt. R. S. O. 1887, 
 c. 73,s. 18. 
 
 1 
 
 c 
 
 '7 
 
 10. If at the trial of the action the plai ntiff does n ot prove, Jf.plaintiff 
 
 — ' ■■ ■" sr--* ■* fails to prove 
 
 1. That the action was brought within the ti me hereinbefore tfcuf " '""^ 
 
 limi ted in that behalf ; and 
 
 2. That^ notice as aforesaid was given one i nonth before the 
 action was commenced ; and ~ 
 
 3. The cause of action stated in th.e notice ; and 
 
 4. That the cause of action arose in the county or district, 
 the County Town of which is nained in tlie stateniont of claim 
 as the place of trial ; and 
 
 ars, 
 he shall be 
 non-suited or 
 verdict sriveii 
 for the uefen 
 dant. 
 
126 
 
 Sec. 24 (1). JUSTICES of the peace— protection. Chap. 88. 
 
 5, Where the plaintiff sues in a County or Division Court, 
 that the cause of action arose within the county or division 
 for which such Court is held ; 
 
 Then , and in any such case, the plaintiff shall be nonsuited, or 
 a verdict shall be given for the defendant. RrSr(TTH«77cr73, 
 s. 20. 
 
 pamagesnom- !!J0. In case the plaintiff in such action is entitled to 
 tab oases' recover, and he proves the levying or payment of any p enalty 
 or sum of money under any conviction or order as parcel of 
 the damages he seeks to recover, or if he proves that he was 
 imprisoned under the conviction or order, and seeks to recover 
 idamages for the imjjrisonment, and it is proved that he was 
 f actually jjuilty of the offence of which he was so convicted, or 
 that he was liable by law to ])ay the sum he was so ordered to 
 pay, and with respect to the imprisonment that he has under- 
 gone no greater punishment thari that assigned by law for the 
 offence of which he was so convicted, or for non-payment of 
 the sum he was so ordered to pay, he shall not be entitled to 
 recover the amount of the penalty or sura so levied or paid, 
 or any sum beyond the sum of three cents as damages for the 
 imprisonment, or any costs of suit whatsoever. R. S. (J. 1887, 
 c. 73, s. 21. 
 
 If plaintiff re- "it. If the plaintiff in .such action recovers a v e^-dict or 
 
 etc.'^'tVtel.n*' the defendant allo ws judgment to pass against him by defaulj ;, 
 
 titled to coHts. the pl aintiff shall be entitled to co.sts in the same maij ner 
 
 as It this Act had not been passe d. K. 1;^. 1887, c. 73, s. 22. 
 
 If malice and 
 want of iirn- 
 bable cause 
 alleged and 
 plaintiff recov- 
 ers, he shall 
 be entitled to 
 full costs. 
 
 When (lefen- 
 dantisentitled 
 to full costs, 
 etc. 
 
 i Persons obey- 
 ing writ of 
 iiuituinmus, 
 protected. 
 
 'i'i. If in any case it is alleged in the statement of claim, 
 or in the summons and particulars if the plaintiff'sues in the Divi- 
 sion Court, that the act complained of was doiic maliciou.s ly and 
 without reasonable or probable cause , the plaintiff, if he recovers 
 a verdict for any damages, or ii' the defendant allows judgment 
 to pa.ss against him by default, sli all be entitled t o his costs 
 to._be _taxed as bet_weaii_solici tor an<l ^ITen t ; ami in every 
 action against a Justice of the Peace fol' anything done 
 by him in the execution of his office, the defendant, if he 
 obtains judgment, shall be entitled to his full cost s in that 
 behalf, to be taxed as between .solicitor and client . It. S. O. 
 1887, c. 73, .s. 23. "^ 
 
 'Hi. No action, or other proceeding shall be commenced 
 or prosecuted against any person or per.sons whomsoever, for 
 or by reason of anything done in obedience to a peremptory 
 writ of mandamu8 isiHxmd by any Court having authority to 
 is.sue writs of mandamua. R. S. O. 1887, c. 73, s. 24. 
 
 Action not to 'i4 — (1) No action shall lie against a Stipendiary or Police 
 Btiiwidiary or Mag'«tiate for or by reason of any process insued, or c(>n\ ictiim 
 Txtiice niagist- made by, or any proceedings of any kind taken before him 
 rates, etc.. alone, or authorized by him, in good faith, in any case which. 
 
i 
 
 Chap. 88. JUSTICES of the peace — protection. Sec. 24 (1). 
 
 127 
 
 by the Law applicable thereto, was not cognizable by such Police f°r ^T'*'*'" 
 Magistrate, or not by him sitting alone, or which should have jurisdiction. 
 been heard by two Justices of the Peace, or by the mayor of 
 a city or town within the district, county, union of counties, 
 or part of a district or county or union of counties, for which 
 the Stipendiary or Police Magistrate was appointed. 
 
 (2) This section shall not prevent an action from being 
 maintained where and so far as the action would be maintain- 
 able against the mayor or Justices of the Peace if the process 
 had been issued or conviction made by, or j)roceedings tak^n 
 before, or authority given by him or them, in a matter in 
 which he or they had jurisdiction. 
 
 (3) No action shall lie against a constable or peace oflBcer 
 for anything done by him under and by virtue of process 
 issued or authority given, as in sub-section 1 mentioned, 
 unless the action would be maintainable if the process had 
 been issued or authority given by a person or persons legally 
 qualified to issue the process or give the authority. R. S. 0. 
 1887, c. 72, s. 29 (1-3). 
 
 r; 
 r 
 
 C 
 
 -9 
 
128 
 
 JUSTICES OF THE PEACE. 
 
 NOTES. 
 
 Who are within the Act. Tlio Act exteiids j)r(ptf(ti<in to all ))eiHi)iis wlm ml 
 iii(;;<iiliuly 111' illuyiilly in tlu- iliscliiiiL'e of soiiio duty ami tho following peisoiiH 
 havo boeii liolil to coini; within that (lesignation : — 
 
 JuHticos of tlu! IVaco; Mai.sli v. Houlton (1S48), 4 U. (J. R. 354 ; 8iiuloii v. 
 lii(jwn (IHiMl), 17 A. |{. IT.t; Imt not when acting as interested parties ; 
 Cusick V. McHae (ISr.3). 11 U. (.'. R. M\}. 
 
 Police magistrates; Oordon v. Denison (1894), '24 (). R. oTO ; 22 A. R. :ur>. 
 
 Constables ; Sage v. DuftV (1852), U. V. R. MO : Seott v. Rel.urn (I8!»4) 2.) !), 
 R. 450. 
 
 Customs OfHccrs : Wadsworth v. Murphy (1844), I U.C.R. UK); 2U.C.R. 12(i. 
 
 Path Masters : Hdliwell v. Taylor (1858), 10 U. C. R. 2V9. 
 
 School Trustees: Spry v. Muniliy (18<i2), 11 C. P. 285. 
 
 Collectors of Taxes ; S])r\- v. Muudiv (18(i2), 1 1 C.V. 285 ; Howard v. Herring- 
 ton (18!)3), 2(1 A. R. "it.-.. 
 
 Arbitrators l)etween School Trustees and a teacher ; Kennedy v. Burness 
 (18.-)8), 15 U. V. R. 487 : Huglies v. I'ake ( 18(i5), 25 U. C. R.' n.5. 
 
 Poundkeepeis ; Davis v. Williams (18(iH), l.'{ (.'. P. 'Mi't ; Denison v. Cunning- 
 ham (1874), 35 U. C. K. :18M. 
 
 Mayor of a town for refusing to sign an order to enable plaintiff to obtain a 
 saloon license ; Moran v. Palmer (18(13), 1.3 C. P. 528. 
 
 Registrars of deeds for exacting excessive fees ; Ross v. MeLav ( 187(i), 4(1 l^ 
 C. R. 87. 
 
 Crown attorneys ; McDnugall v. I'eter.son (187(1), 40 U. C. R. 95. 
 
 County C(,urt Clerk ; Dews v. Riley (1851), 11 C. 15. 434. 
 
 Inspector oi Hsheries ; Venning v. Steadnian (1884), 9 S. C. R. 20(1. 
 
 License eonnnissioners ; Leeson v. License Commissioners (1890), 19 O. R. ()7. 
 
 Within his Jurisdiction. If a matter is within the jurisdiction of the justice, 
 the act of the justice is not a trespass ; but nnist be dis])osed of upon the same 
 princiijles as the old action upon the case ; Haacke v. Adamson (18()4), I4('. 
 P. 201. The magistrate nnist have jurisdiction lioth over the |)erson of the 
 accused and over tlie otl'ence clia ged ; ('audle v. Scvmiau' ( 1841 ), 1 (^>. H. 889 : 
 Hart<m v. BriekncU (!8.-.(l), 13 (). \i. 393 ; Coiniors v. Darling ( 1 8(>4), 23 U. (' 
 H. .■)41 ; Appleton v. Lep])er (18(i9), 20 C. I'. 138 ; Stoness v. Lake (1877), 40 
 U. C. K. .320. 'Po give juridiction an information iinist lie laid or be waived, 
 but it is not necessary that it should be in writing ; Stoness v. Lake (1877), 40 
 U. C. R. 320, and cases there cited ; Mc(;uiness v. Dafoe (189(1), 23 A. R. 704. 
 For a judicial deteruiination of uwtters pro])erly before him it is aj)|)reliende(l 
 that a jiLstice is not liable ; I'alev on Convictions, 7tli Kx. .385 ; Dickson v. 
 Crabb ( i8(i5), 24 U. C. R. 494 ; Somerville v. Miiehousc ( 18()(l), 1 B. & S. ().")2. 
 I t is only when a m agistrate acts irreg ularly or il lcLrally that he re(|uires p ro- 
 tectio n. W'heie rtKla ILl'L' ordered lo lie paid to a |)arty instead of to the Clerk 
 of tlie I'eaee it is merely erroneous ])rocedure, and not an excess of juiisdiction : 
 R. V. liiiuiey (18,")3), I K. it \i. 810. Issuing a warrant without a formal order; 
 Ratt V. Parkinson (1851), 20 L. .F. M. (;. 208 ; failing to slate the anumnt of 
 costs in a wariant ; Dickson v. (,'rabb (18(i5), 24 U. C. R. 494 ; directinga dis- 
 tress and in default im])risonmcnt in the stocks (which last was improper). Bar- 
 ton V. IJricknell (18.V)), 13 (,',15. 39.3. riMiuiring sureties to keep the peace instead 
 of for good behavior ; Haylock v. Sjiarke (18.53), 1 K. & 15. 471, re-fusing to take 
 hail on a charge of mi.sdemeanor ; Linford v. Fitzroy ( 1849), 14 Q. B 240, or 
 issuing a warianl for the arrest of a witni'ss ; (Jordon v. Denison (1894), 24 (). 
 R. 57() ; 22 A. H. 315, will not ma(ie a justice lial)le urdess <lone maliciously 
 and without reasonable oi' ))rol)able cause. 
 
 Thejiiali(^t^i;emiired injiuli uns within s. 1 is of the kind k nown ii,-^ 
 
 " ^^s!^lnn es n i intent to injure, actuated eit her Itj' spitK aiiilii 
 
 yill loua rds an inihviilual or I n' inilireet or inipi'r^per motives ; Hicks v. Fauliv 
 
 Malice, 
 express mali( e. 
 
 MCI (i8V8)Tinj: nnrm 
 
JUSTICES OF THE PEA.CE. 
 
 129 
 
 inferred fnmi the absence of reasonable and probable cause: Stephen's Malicious 
 Prosecutions, 34. 
 
 Want of Reasonable and Probable Cause. If n man lipiu-stly biOii-vc« ii^ ^ 
 case la id lieli'ie a ji.diriul tiilnniiil. siiili l)clief lieiii }^ based un iL ' 
 Tuition 1)1 the existeni'C nf ciriunist a 1 1 
 
 ■rrr.n t(i such belief. \W hilK I'^l snUaMe itTTTrnioliable 
 Kast r r n Ky. < ! o. (IH7 ' >) L. H. . 1 L. I ' . CM ; Lister v. 
 
 in|' liased on ii [...-....f >-^,j^-_ 
 winch wmdd lead au\ fai rly eautioUM 
 
 ibable lausi' ; NraTTei' V. .^Illllll"" 
 TTrninan (1«7(»| L. H. 4 
 H I- '>"21 : Kank nf British North Anu'iiea v. Stiiuif,' (1H7()) 1 .\|)|). ('as. .SO" ; 
 Sliaw V .\bKen/ie (ISSl) (i S. ('. H. ISI ; Hi( ks v. F.iulkiier ( ISTS) H g. li. 1). 
 1(17 • M.ralh v. North Kastern Hv. Co. (IHHS) 11 Q. H. I). 440; 11 A))]), (."ns. 
 •J47 i Nb<;ill V. Walton (IHHS) l.-)'(). H. .SH!) ; Webber v. MeLeed (IISSS) Iti O. 
 K (iilll : Lea v. ("liarrington (IHSil) •i.'l Q. 15. D. •27"2 ; Hamilton v. (,'ousineau 
 (IS!)--') lit A. H. -io:! ; Brown v. Haw kes (l.S'.M) 2 (.». I!. 7IS ; Archibald v. 
 McLaren (18!(2) '21 S. C. R. ">88. The magistrate lias iiotliing to do witii the 
 guilt or innocence of the accused except as it appears from the evidence ; 
 Burlcy v. Hcthune (1814) 5 Taunt. .>80. 
 
 Acting without or in excess of Jurisdiction. When a mapistriitc acts without 
 or in excess of liis jur isiliction, an a ction of tiespass will lie aJi ether tl^ e 
 j ustice was actiiigt'""b'mlly or niiiiisterially ; I'aley on ('onvictions, 7th K. :190. 
 A.shasbeen aeena inagLstrale whoisMU"s a warrant witliout an information being 
 laid acts without jurisdiction uidess the same is waived ; AppU'.on v. Lepper 
 (I8()!»)20 v. 1'. LS8 ; Friel v. Ferguson (18(i.")) 1"> C. 1'. .")84 ; H. v. Hughes 
 (1879) 4 i). H. 1). ()I4 ; Mcduinness v. Dafoc (18!Hi) •S^ A. H. 704, and so if ho 
 issues a warrant on a deposition taken in his aiisonce, lie not at the time see- 
 ing, exainiiiing or liearing tlu! deponent ; Caudle v. SeymoiU' (1841 ) 1 Q. B. 
 889. A connuitment to gaol by ))arol is not good exce])t for such period as is 
 necessary for making out tiu' warrant ; Hutcliinson v. LowiKJe.s (1832) 4 B. & 
 Ad. lis. Issuing a warrant for tlie arrest of a prosecutor as a witness on 
 a charge of assault is a trespass as tlie pro.secutor is not bound to prosecute 
 sucli a charge, Cross v. Wilcox (1S7()) ."19 U. <!. H. 187. An information 
 against a ])erson for keeping a disorik'rly liouse will not justify a warrant 
 to arrest all persons foinid tlierein ; Cleland v. Robinson (18(il) 11 C. P. 416. 
 A justice who issues witluiut juri.sdiction a warrant to arrest a |)erson in 
 another county is responsible for the arrest ; Jones v. (!race (1889) 17 O. R. 
 6S1. 
 
 Quashing Conviction. B efore an action can lie brought for anythinu ilono 
 unde r a conviction, the convi(^t ion must l) c f|ua.shed, wh e ther there was juris - 
 diction .ir noj ; Arscott v. Ldlev (IMKIi) 1 10. \i. -^H' ; 14 A. R. -i^ii. But 
 neitlier a c inviction not vnider seal ; Bond v. Conmec (1887) l.') O. K. 71'> ; Hi 
 A. H. .'198 ; a warrant to arrest a witness ; (Jordou v. Denison (1894) "24 (). R. 
 r(7ti, 22 A. K. .SI."), nor an order for the destiuctio i of li(piors, under R. S. O., 
 c. 39 need lie (piashed, but it would be necessary to <piash an adjudication of 
 forfeiture, Bond v. Coiimee ib. Where an ar.e.st took ))laee uiuler an invalid 
 warrant issued without jurisdiction, it was not neceasury to (piash the C(m- 
 viction ; .lones v. (irace (1889) 17 O. R. (>81. An amendment of a conviction 
 on appeal by .striking out " hard labor" i.s not a (plashing thereof; McLellan 
 V. McKiiinon (18S2) 1 O. R. 219; n(a' is (lie dischaige o\\ a, hali<ii.t corpiin of 
 the party arrested ; Hunter v. (iilkisoii (lss4) 7 O. R. 72."). 
 
 ■,1 
 
 NOTICE OF ACTION. 
 
 To whom notice must be given. (1) Notice must be given to all persons 
 iiileiiding to act in pursuance of a statute, Briggs w Kvelyn (1792) '.! H.Bl. 
 114; 3 R.R. 3r)4. 
 
 (2) Kvn where a (larty acts without juiisdictioii lie is entitled to n itice if 
 he .1' ted in the hiaiest belief that lie was acting in the execution of his duty, 
 Kimh'uv. Brown (1890), 17 A. R. 173; Hernia ,n v. .Seneschal (18(12), 13C.B.N.S. 
 392; Selmcs v. Judge (1871). L.H. « Q.H. 724; Roberts v. Orchard ( 18(i3), 
 2 H. & C. 7'));; Leete v. Hart (18(i8), L.R., 3 C.P. 322; Calder v. Halket 
 (1840). 3 .\Ioo. I'.C. 28; Booth v. (Uive 1851), 10 C.B. 827; Mctiuinuess v. 
 Dafoc (lS9(i), 23 A.R. 704. 
 
 (3) If a person has the right to do an act if a certain state of facts oxiiits and 
 is under tlie statuti' a\itliori/,iiig the act, entitled to notii:e af aetioi , if he 
 acted in pursuance of the statute, the right to notice de|;ciids upon wlieilior ho 
 lioim _tiitf believed in the existence of a state of facts which, had they existed, 
 
 1. 
 
130 
 
 JUSTICES OK THE PEACE. 
 
 would have afforded a defence to the action, and siutli is the proper question 
 to l>c sulmiitted to the jnrv ; M<(iuinncHS v. Diifoc (IHHti), '23 A.R., at p. 712 ; 
 Heath V. Hn-wer (lH(i4), 1.') C.H.N.fS. SOS ; CiitKth v. Taylor (1877), '2 C.IM). 
 1!(4, anil thi; defendant must show some faets wliidi might give rise to tiiat 
 hi'lief, Imt it is not neeessarv that tlie hcHef should }>t: reasonahle ; ('haiii))er- 
 lain v', King (1H71), L.K. « C.l'. 474. 
 
 (4) An otlieer is not deprived of tlie protection of a statute because he is 
 indemnitied ; Wliite v. Morris ( IH,")!'), 1 1 (J. H. 101 o ; Dale v. Cool (1854), 4 C.P. 
 4t)0: Lough V. Coleman (18(iil), -"It U.C.K. 307. 
 
 (">) If it is eiiuivocal in what ( iipacitv a party acted, noti<* must be giver. ; 
 Briugs v. Kvelyn(17i>-'), I!. H. HI. 114 ; .S K.H., :ir)4 ; Morgan v. Palmer (18-24), 
 •2 li. & C. 729 ; 26 U.K., t"):l7 ; hut see \'enning v. Stciidman (1884), 9 S.C.H. 
 2(H). 
 
 Notice is not necesaary , in the following cases : 
 
 ( 1 ) Wliere tlu^ a i t is i\ot d one in the ffipncity of offivyr. but is wholly direrm 
 wliiitii, Irving v. Wilson (1701), 4 'I'.K. 4H."i ; 2 li. R. 444 ; or wholly alien to 
 his jurisdiction, Agnew v. .Jol)son (1877), 13 Co.x. C.(,'. t)2o^ 
 
 (2) Wlu're the otlieer acts coloraUly an(l vexatiou.sly from a uiitheiouH or eo r- 
 i-iipt fcelint; w itlumt lieli evin;.' l ie luul autho rity to do tlie act ; Bross v. Hubei 
 n»l.-.!)), IHU.C.k. 2S2. ' 
 
 (3) \V 
 Friel v. 
 Kelly 
 
 liere there is no evidence 
 
 ttp: 
 
 )f li onest bel ief in tlie ri ubt to do the ac t ; 
 
 ST; Il)l)ottson ■\^TTuni \ (188.')), 8 O.K. 62;) ; 
 
 'I) O.K. ()08 ; 22 .\. H. .")22 ; and if there is evi<lenee 
 
 icstion must lie submitted to the jury if the plain- 
 
 18(i(i), 2.") U.(;.R. 48."); Stewart v. (Jowan 
 
 Mintoii (l8.-)3), 10 U.C.R. 423; (Jay 
 ' e principal object of the action 
 V Lcyton (1877), iTch.l). 347 : 
 
 ] 
 
 Ferguson ( I8(m), \, 
 _ V. Archibald (I8!l.-)). 
 of want of good faith the i, 
 till' desires it ; Neill v. McMillan 
 (1877), 40 U.tJ.H. 34() ; Allen v. Me(>»uarrio (1879), 44 U.C.R. 62 ; Sindon v. 
 Brown (l8iMt), 17 A.H. 188. 
 
 (4) AVhere t he action is to recover ba ck an Ui ila.wilil fee illegallY evnfted 
 Morgan V. Palmer (IH24>, 2 15. k C. T2i» ; 2(i R.R. 537 ; or for an excess ot 
 money made : Dale v. Cnol ( IS."), 6 C.P. 544; .McLeish v. Howard, 3 A. R. 
 503. 
 
 (5) Where tin - party has n ot been legally appointed t ii the office which would 
 ^ve the right to d(jjjie.iipt ; Tarrant v. Baker (T5r)3), 14C.H. 199. 
 
 (6) In act ions o f rep leyjii ; ?'letcher v. \Vilkiii.s(IS(l.")), (i East 283 ; Lewis v. 
 Teal (fsTI), 32 U.U. R."Tn?< : Applegartli v. (irahaiii (1858), 7 C.P. 171 ; Ken- 
 nedy y. Hall (IS.-)8), 7 C.l'. -'Is ; Folger v. 
 V. Matthew- ( I8()2|, 4 W. k S. 42."), p. 7 ; where th 
 is an iniunctiu n ; Flower v. Local Hoard of Low 
 Chapman v. ( imirdians . .f A)icklaiid Union (1889), 23Q.B.D. 294, p. 8; angctio ii 
 tw )T)» 1889) The Longford 14 P. D. 34, an action to recover land ; Foat v. 
 KHmTr of Margah < ISS2), 11 (,).H.D. 200, pTlT ' " 
 
 It is for the .1 u ige to decide whether nature of action was necessarj' ; Kirby 
 v. Simpson (1854), 10 Ex. 3.58. 
 
 The Action. The notice of action where necessary is a condition precedent 
 to the light of suiiij: ; Clark.son v. .Musgrave (1881). 9 Q.B.I). 390 ; but the 
 want of notic e must I"' rais(;d by the statement of defence; Verratt v. .\Ic- 
 Aulay (ISS4]."7rtt1t::^T :<; ^IcKliy v. Ctimmings (IKS4). 6T).R. 4(H); Bond v. 
 Coiimce ( 1889), Ki A. R. 398 and in the Division Court by notice of a statutory 
 defr.nce ; Smith v. Pritchard ( IS48), 2 C. « K. ()99 ; Allwright v. Perks (1893), 
 9T.L.R. 235. 
 
 Form of notice of action. Where the act is \ yithiii t he jiuisdiction "f th e 
 (itticer, the notice must allege that the act was d one malicio uhly anil witliim • 
 rcasoiialile or probable cause. Tayl')r~y. Neshelil (IS,'i41. 3 K. k\\. 724: IvcTly 
 {'. Archibald (1895), 26 D. R. 6(18 ; 22 A. R. .522 ; Howell v. Armour (1885), 
 7 O. R. 363 ; Scott v. Reburii (1 894), 2;) (). R. 4.")0 ; but a notice intended to 
 state a cause of action under the first section may be good as a notice of action 
 for trespass if the act was done without jurisdiction ; Mciiuinness v. Dafoe 
 (1896), 23 A. R. 704. ' Uhe iiotii c must s tate the time and i)la ee : Moore v. 
 Oidlev (1872), .32 U. C. R. 2.33 : Oli pliant v. Leslie (I8(i5), 24U. C, R. 398 ; 
 Martins v. Uiicher f IS42), 3 Q. B. 662, (1892) I Q. B. 614; Parkvn v. Sta])leB 
 (1869), 19 C. P. 240; Sprung v. Andeison (1S73), 23 C. P. 1.52; Scott v. 
 Reburn (1894), 25 0. R. 4.")0 ; but where reasonable particularity is used as 
 sufficiently to identify the act or acts ciin])lained of it is a sufficient compliance, 
 so that a mistake as to the date or precise locality not ci>'.cMlateil to deceive 
 
JUSTICES Ol' I'llE I'EACE. 
 
 131 
 
 ,e\viH V. 
 Ki'ii- 
 
 ; <i'iy 
 
 actioji 
 
 I action 
 foat V. 
 
 Kiihv 
 
 -Sic- 
 ?on(l V. 
 itutory 
 i(l«93), 
 
 of th e 
 \vitli(m'. 
 
 CcTly 
 
 (188-)), 
 
 ■niled to 
 
 )f action 
 
 Dafoe 
 
 looro V. 
 
 K. 398 ; 
 
 StapleB 
 Scott V. 
 
 used as 
 i|>liance, 
 
 deceive 
 
 will not vitiato it ; <iiecn v. Hutt (18S'2), T)! L. J., Q. B. Mi) ; Laiigford v. 
 Kirkpatiick (IS78), •_' A. R. .MS; Bond v. Cnnm.'o (188!»), 1") (). R. 71tJ; l« 
 A. R. 398. atHrnifil in Supreme Court, see IT A. K. a|)))eridix ; Madden v. 
 KenHiiintcm Vestiy (18il-2), 1 *). I?. ()I4. It is not ne<essary to state in what 
 court the a<ti()ii will ho hrouglit ; Hanns v. Johnston (1883), 3 (). R. lOt) ; hut 
 if a court is named the writ nniat issue therefrom •. Buck v. Hunter (1861), 20 
 IJ. ('. R. 43<). The notice need not he in one doennu'iit ; it may he contained 
 in a series of letters, if in tlie result the cause of a(^tion,lind otluu- particulars 
 required are discli nc 1 ; Liiudey v. Mayor of Kast Retford, ;V) J. P. 133. A 
 reference to a statute which does not ajiply will not invalid, ite the notice; 
 Mactiregor v. (iahvorthy (18,-)(»), 3 C. k K. 8. The plaintill will he conlined 
 to the cause mentioiuil in thii notice ; Ohernier v. Robertson (1892), 14 F. R. 
 .Vi3] A defect in ilie notici^ nuiy l)e waived: Donaldson v. Haley (1893), 13 
 
 ('. i'. 87. 
 
 Within si x mnntha. The (lav nf doiii^T the net iiiiwl hi- evi'hidcil ; Young V. 
 Higgon (1840), (iM. & ^'. 49 : llaiuiH v. .Johnston (1883), 3 0. R. 1(H), Re 
 (;allant(l89l), 11 C L. T. 1.38: Hardv v, Rvh> (1829), 9 B. .VC. (i()3 ; Kdgar 
 V. Magee(1882), 1 O. R. 287. 
 
 Service of notice of action. The words " ])lace of ahode " are wider than 
 iilacc of resilience, and .i notice is sutlicientlv served if left at theollicer's place 
 „f husiness ; Mason v. Bihhy (18(14), 2 H. & C. 8S1 ; Bond v. ('oiuuee (1889), 
 Hi .A R. 398. It may he served hv anv literate person ; (Uiming v. Toms 
 (1S44), 7 M. &(!. 29. ■ 
 
 Venue. .Vlthough local venue in actions against ollieers was for a long time 
 considered to he anolishe(l it is now clear that every such action inu.st in the 
 High Court he tried in the County where the action was committed, and in the 
 County and Division Courts nnist he hrought in tlie County or Division where 
 the act was counnitted, .see ('. R. ")29 ; Holnisted & Langton p. (593. Where 
 tlie veimo was changed hy order to the jiroper county hy con.sent it was hold 
 that the defendant couhl'iiol ohject ; Bond v. Conmee (1889), 10 A. R. 398. 
 
 Actions hrouglit against a person for anything <lone in pursuance of the act 
 respecting ])rivate hniatie asylums must he hrought in the county where the 
 cause of action arose ; R.S.O. e. .SI8, s. 89 ; and actions for anything doiu' 
 under The Prisons and A.sylums Inspection Act nuist he laid and tried in 
 the county where the fact was committed ; R.S.O. c. 321, s. 28. 
 
 Not guilty by Statute. 
 plea y 
 Butn 
 
 The plea shou ld refer to the sta tute which allows th e 
 ■a >is well as anv other statute relieil llimil hy llKt detenie . Van Mattery. 
 iiralo& Lake Huroii Ry. Co. (l8tiH), -JT U. i\ ll. .'Hi, imdlTit is intended to 
 Y'lly uj><)£_ the want o r insulKcieiicy of notice of actioii^ section 14 shoulilJGj' 
 ■s pecially m entioned ; Bond v. Couiuee (|SS4), !,'» (). K. 7H) : (ISHitj, l() A". R. 
 398, but if the plaintitf is not taken hy suri>rlse, an amendment is almost a 
 matterofcour.se; Kdwards v. Hodges (18.").")), lo C. B. 477; Van Natter v. 
 Biirtalo & Lake Huron Ry. Co. (18()8), 27 U. C R. -)81. The defendant may go 
 into any defeiKe that could he specially plcai'.cd whether foundeil entireh- on 
 the statute or jiartly on the statute and partly not, and into any defence wholly 
 indttpendent of the statute, whicli could he set up at common law under the 
 general issui' ; Maund w Monmouthshire Ciiial Co (1H42), ("ar. Ik M. (j(t(l ; Ro.ss 
 v. Clifton (1841), 11 A. * K. (Cil ; Fisher v. Thames .luiiction Rv. Co. (1837), 
 5 Dowl. 773; Doan v. Michigan Central Ry. Co. (I8K(t), 17 A. R. 481. The 
 plaintitl' cannot oust the defendant of his plea hv waiving the tort and suing in 
 contract ; Calvert v. Moggs (18.39), 10 A. & K. (132. 
 
 Tender of iimends. A tender of amends ..ill not cure a defect in a notice of 
 action; Martins v. Uppcher (1842), 1 Dowl. X. S. .V)."). The tender may be 
 given in evidence nnder the plea of not guilty hy statute : Moore v. Holditch 
 (1850), 7 U. C. R. 307. Tiie sum tendered need not he paid into Court ; .Tones 
 v. Uooday (1842), 9 M. & \V. 7.3(5. 
 
 Payment into Court. In a jilea of ))aynient into Court, the eharaoter in which 
 the payment is made need not he stated ; Astmi v. Perkes (184(5), 15 M. & W. 
 385. Leave may he granted to withdraw the g Mieral issue and to jiay money 
 into Court : Devaviies v. Boys (18l()). 7 Taunt .33 ; Nestor v. Newcoiue (1824), 
 3 B. & C. 159. " 
 
 
 
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132 
 
 JUSTICES OK THE PEACE. 
 
 Suing in County or Division Court. If tlie ofHcer lias given tiie proiwr notic^e 
 objecting to licing sued in an infeiior Court, the aetion eannot be removed Ity 
 certiorari into the High Court ; Weston v. Sneyd (1857), 1 H. & N. 703. 
 
 Where plaintiff proved to be guilty. \Vliere the ))laintifV is shevn to be guilty 
 of tile otren<i' the (ianlag^■^i are liniiti'd to tiiree eents. Tiie seetion ('20) a])|)Iie.s 
 only to ca.ses where the conviction has been quashed ; Rogers v. Jones (IH34), 
 :{ B. & C. 4(t!» ; -27 R.' R. .'WD. It is not eonfine<l to cases where the justices 
 b.avo jurisdiction; Bross v. Flubcr (IH.'iH), 1") V. C. R. (i'25 ; but applies to 
 actions both in trespass and case: Haacke v. Adanisoii (18(i4), 1-4 C. I*. "201. 
 Where the justices wer(> not aulhori/.cd to inniose " liard labor " and the turn- 
 key swore that the jilaintilVdid no hard work in jail it wr.s held that the fact 
 that he was jiut to .some com))ulsoiy work was suHicienl to show tiiat he 
 sufFered greater jiunishment tiian :hat imposed by law ; (Jrahani v. McArtlnir 
 (I8«(i), '2iJ U. C. R. 47S. 
 
 Costs. Where a jury finds no damages, the 'fficer is entitled to his full costs 
 as between .-lolicitor and client, and the court has no jurisdiction toile|irive him 
 thereof ; Ar.scott v. Lillcy (ISS7>, 14 A.R. 283. If the justice has not objected 
 to the action lieiiig liiouglit in an inferior court the plaintilfs costs, if he ."ue- 
 eceds, \\ill be taxed on the .scale applicable to the 'ourt in which the aetion 
 might have been brought with right of sct-olV; Ireland v. Pitcher (1886), 11 
 P. R. 40H. Costs " as bci ween solicitor and client" iiR'an such costs as could 
 he taxed igainst a resisting client under a general retainer only to prosecute 
 or defend the action ; Cousineau v. Loiuhm Fire Ins. Co. (1888), 12 P. R. r)12 ; 
 HeiLslip v. Hea8hp(18ni), 14 P. R. 21, Kio. 
 
CHAPTER 160. 
 
 An Act to sec are Compensation to Workmen in 
 
 certain cases. 
 
 Sh'jrt title, s. 1. 
 Inteui'retation, s. 2. 
 Claims aoainst kmployeus, s's. 3, 4. 
 Injury by railways, s. 6. 
 Compensation : 
 
 Excc])tions negativing right to 
 
 recover, s. (i. 
 Limit of amount, s. 7. 
 How compensatidn may l)e dis- 
 tributed, K. 8. 
 Limit as to time for recovery, 
 8. 9. 
 Defences under aureements, s. 10. 
 
 Liability of i-eksonal kei'ue 
 sentativ .3, s. 11. 
 
 Deouction of penalties from com- 
 pensation, s. 12. 
 
 Notice of injury, s. 13. 
 
 Defence of want of notice, oh 
 not employer, s. 14. 
 
 Particulars of demand, a. 15. 
 
 appointmentofassessors, ss. 10-24. 
 
 Consolidation of actions, ss. 25-30. 
 
 Admissions by notice, s. 31. 
 
 Computation of time, s. 32. 
 
 Forjis and rules, s. 33. 
 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legisbxtive Assembly of the Province of Ontario 
 enacts as follows : — 
 
 I. This Act m 
 GoTnyensation fm 
 
 ay be known and cited as " The Worhm ^'s Short title. 
 yy Injur j,f'„s '^'•f" 55 V. c. 30 s. 1. 
 
 :: 1 
 
 *Z. Where the following words occur in this Act, they shall Interpreta- 
 be construed in the manner hereinafter mentioned, unless a *'°"" 
 contrary intention appears: — 
 
 1. "Superintendence" shall be construed as meaning such "Superin- 
 general superintendence over workmen as is exercised by a '^°^^' 
 foreman, or person In a like position to a foreman, whether the 
 
 person exercising superintendence is or is not ordinarily 
 engaged in manual labour. 
 
 2. "Employer" shall include a body of persons corporat e "Kmplover." 
 or uiuiicm:22£2i!'^' ^^^ ^^^° ^'^^ le<ral personal representatives of 
 
 a deceased cmiployer, and the person liable to pay compensa- 
 tion under section 4 of this Act. 55 V. c. .SO, s. 2 (1, 2). 
 
 3. " Workman ' does not include a domestic or menial "Wcukinan 
 servant or servant in husbandry , gardening or fruit growing, 
 
 where the personal injury caused to any such servant has been 
 occasioned by or has arisen from or in the usual course of his 
 work or employment as a domestic or menial servant, or as a 
 
 [1331 
 
184 
 
 Sec. 5. workmen's compensation for injuries. Chap. 160. 
 
 " Packing. 
 
 " Railway 
 servant." 
 
 servant in husbandry, gardening or fruit-growing, but, save ;is 
 aforesaid, means any i-ailway servan t and any person wh o 
 being a labourer, servant, journeyman, artificer, handicraftsma n , 
 miner oro therwise engaged in manutvl labou r7whetlier undtr 
 the age oi' twenty-one yeai's or above thaf age, has entered 
 intt) or works under a contract v/ith an employer, whether the 
 contract is made before or after the passing of this Act, is 
 expressed or implied, oral or in writing, and is a contract of 
 service or a contract personally to execute any work or labour. 
 50 V. c. 2G, .s. 1. 
 
 4. "Packing" shall mean a packing of wood or metal, 
 or some other equally substantial and solid material, of 
 not less than two inches in thickness, and \vhich, wher- tilled 
 in, shall extend to within one and a half inches of the crown 
 of the rails in use on any railway, shall be neatly fitted so as 
 to come against the web of such rails, and shall be well and 
 solidly fastened to the ties on which such rails are laid. 
 
 5. " Ra ilway servant" shall mean and include a railwa y 
 servant, tram wa y servant and street railway servant . 55 V. 
 0. 30, s. 2 i4<-Sy~ ' 
 
 When work- 
 man to have 
 claim against 
 employer. 
 
 3. Where personal injury is caused to a workman — 
 
 1. By rcasuti of any defect in the condition or 
 
 arrangeiiicnt of the ways, works, machinery, plan t, 
 buildings or ijrciiiiscs connected with, intended ior o r 
 used in the business of the enijiloyer ; or 
 
 2. B}' reason of the negligence of any person in the 
 service of the employer who has any superintendence 
 entrusted to him whilst in the exercise ol such superni - 
 tcndeufie ; or 
 
 3. By reason of the negligence of any t)er.>on in the 
 
 service of the employer t o whose order s or directions 
 
 the workma n at tlie time of the injury w^ s bound t o 
 
 conform and did coiifo riii. where such iiiiury resulted 
 
 ,r r-. , . T. — -: ■'' — -^ — 
 
 iroiu 
 
 Ins having' so eonfointed ; 
 
 or 
 
 4. By reason of the act or omission of any pei'son in 
 the service of the employer done or made in ol)edien ce 
 tptlie rules or by-laws of theeinv)loyer. or in ol)edienc e 
 to particular instructions given by the employer or b y 
 any person delegat ed with the authority of the employe r 
 in that behalf ; or 
 
 5. By reason of the negligence of any i)erso n in the 
 service of the oniployei' who has the charge or contr ol 
 of_ailX_ lloints signal, locijiuotivc , engine, m achine, or 
 trai n upoiTa railway, tramway or street rail 
 
 iway. 
 
 iway 
 
 railway; 
 
 the workma n, or, ui_cage the injury results in deat h , the lega l 
 personal representatives of tlie worknuin, and any persons 
 
Chap. 160. workmen's compensation for injuries. Sec. 3. 
 
 Vi5 
 
 entitled in case of death, shall have the same right of compen- 
 sation and remedies against the employer as if the workman 
 had not been a workman of, nor in the service of the employer, 
 nor engaged in his work. 55 V. c. 30, s. 3. 
 
 4. — (1) Where the execution of any work is being carrie d Employer, 
 i nto effect under any contrac t, and deemed. 
 
 (a) The person for whom the work, or any part thereof, 
 is done , owns or supplies any ways , works, machin- 
 ery , plant, buil ding s, or nremises used for the 
 purpose of executing the work , and 
 
 (6) B y reason of any defect in the condition or arrange- 
 ment of such ways, works, machinery, plant, build- 
 ings or premises, personil injury is caused to any 
 workman employed by the contracto r or by any 
 sub-contracto r ; ami 
 
 (o) The defect or the failure to discover or remedy the 
 defect arose from the negligen ce of the person for 
 whom the w ork or any part thereof is done , or of 
 some person being in his service and entrusted by 
 him v;ith the duty of seeing that such condition or 
 arrangement is proper ; 
 
 the person for whom the work, or that part '>f the work is 
 done shall be liab le to pay compensation for the injury as if 
 the workman hadbeen employed by him, and for that purpose 
 .shall be deemed to be the employer of the workman within 
 the meaning of this Act. Provided, always, that any such 
 c ontractor or sub-contractor shall be liable to pay compensa- 
 tion for the injury as if this section had not been enacted, so 
 however that d ouble oon\pensation shall not be I'ecoverable for 
 the .same injury. ~ 
 
 (2) Nothing in this section contained shall ati'ect any rights 
 or liabilities of the person for whom the work is done and the 
 contractor and sub-contractor (if any) as between themselves. 
 5.') V. c. 30, .s. 4. 
 
 
 CO 
 
 5. Where within this Province personal injury is cJiused to I".J"y''^*' '^y 
 a workman employed on or about any railway, ^'" ^^'*^*" 
 
 1. By reason of the lower beams or members of the 
 superstructure of any highway, or other overhead 
 bridge, or any other erection or structure over said 
 railway, not being of a sufficient height from the 
 surface of the rails to admit of an open and clear 
 headway of at least seven feet between the top of 
 the highest freiglit cars then running on such rail- 
 way, and the bottom of such lower beams or mem- 
 bers ; or. 
 
136 
 
 Sec. 6. workmen's compensation for injuries. Chap. 160. 
 
 Exceptions 
 to preceding 
 provisions. 
 
 2. B y reason of the space betwee n the rails^in anA' rail- 
 
 way Irog , extending from~ETie point oF~sucn frog 
 backward to where tho heads of such rails are not 
 less than five inches apart, not be ing filled in with 
 packing ; or, 
 
 3. By reason of the space between any wing-rail and 
 
 any railway frog, and between any guard-rail 
 and any other rail fixed and used along.side thereof 
 as aforesaid, and between all wing-rails where no 
 other rail intervenes, (save only where the space 
 between the heads of any such wing-rail and I'ail- 
 way frog as aforesaid, or between the heads of any 
 such guard-rail and any other rail fixed and used 
 alongside thereof as aforesaid, or between the heads 
 of any such wing- rails where no other rail inter- 
 venes as aforesaid, is either less than one and three- 
 quarters of an inch or more than five inches in 
 width), not being at all times during every month 
 of April, May, Juno, July, August, September 
 October, and November filled in w^ith packing ; 
 
 such injury shall be deemed and taken to have been caused by 
 reason of a defect within the meaning of clause numbered 
 1 of section 3 of this Act, but nothing in tl:is section contained 
 shall be taken or construed, as in any respect, or for any 
 purpose restricting the meaning of the said clause. 55 V. 
 c. 30, s. 5. 60 V. c. 15, Sched. A (.')7). 
 
 0. A workman, or hia legal representatives, or any person 
 entitled in case of his death, shall not be entitled under this 
 Act to any right of compensation or remedy against the em- 
 ployer in any of the following cases, that is to say : 
 
 1. Under clause 1 of section 3, unless the defect 
 therein mentioned arose from or had not been discovered or 
 remedied owing to the negligence of the employe r or of some 
 person entrusted by him with the duty of seeing that the 
 condition or arrangement of the ways, works, n)achin»iry, 
 plant, building or premises are proper. 
 
 2. Under clause 4 of section 3, unless the injury 
 restdted from some impropriety or defect in the rules , by-laws, 
 or instructions theiein mentioned ; provided, that where a rule 
 or by-law has been approved, or has bcv n accepted as a proper 
 rule or by-law, either by the Lieuten<) it-Governor in Council, 
 or under and pursuant to any provision in that behalf of any 
 Act of the Legislature of Ontario, or of the Parliament of 
 Canada, it shall not b-j deemed for the purposes of this Act to 
 be an improper or defective rule or by-law. 
 
 3. Inanyca.se where the workman knew of the defe c t o r 
 negli gence which caused h is injury. and failed without rea son- 
 able excuse to jive or causeJiQ ha^^^yen^vyithin a reasonall)le 
 
Chap. 160. workmen's compensation for injuries. Sec. 6. 
 
 137 
 
 ^ time , information thereof to the employer or some dp 
 I superior to himseli: in the service ot nls employer, unle? 
 
 P'oye 
 
 person 
 less he 
 
 I was aware that the emplo yer or such su perior already knew 
 of the said defect or neslui^ence. rrovmen. however, that such 
 
 workman shall 
 employment of 
 
 erliffe 
 
 not, 
 tlie 
 
 by reason only of his continuing in th e 
 employer with knowled'^e of the defect , 
 
 " n^e 
 
 neglig ence, act, or omi ssion, which caused his injury, 
 deemed to have voluntarily incurred the risk ot the injury . 
 55 V. c, 30, s. 0. 60 V. c. 14, s. 85. 
 
 1. The amount of compensation recoverable under this Act Limit of 
 shall not exceed either such sum as may be found to be equi- a'""""* of 
 valent to t he estimated earnings, during the three years p re- 
 c eding t he inju ry of a person in the same gmde employ ed 
 during those years m the like employment within this rro- 
 vince, or the sum of fifteen hundre d dollars , whichever is 
 larger ; and sucb compensation shall not be^ subject to any 
 deduction or abatement, by reason, or on account, or in respect 
 of any matter or thing whatsoever, save such as is specially 
 provided for in section 12 of this Act. 55 V. c. 30, s. 7. 
 
 H. When in any action under this Act compensation is Distribution of 
 awarded in the case of the death of a workman for an injury compensation, 
 sustained by him in the course of his employment, the amount 
 recovered, after deducting the costs not recovered from the 
 defendant may, if the Court or Judge before whom the action 
 is tried so directs, be divided between tlie wife, or husban d, 
 piirent a nd child of the deceased in such shares as the Court 
 or Judge, with or without assessors, as the case liiay be, or if 
 the action is tried by a jury, as the jury may determine. 
 55 V. c. 30, s. 8. 
 
 
 9. Subject to the provisions 
 a ction i or the re covery, under 
 for an iniury 
 
 shall not 5e~ 
 
 of sections 13 and 14, an Limit of time 
 
 fo' recovery of 
 compensation . 
 
 this Act, of 
 
 ., ^^ compensatio n 
 
 maintainable against the em- 
 
 
 E5 
 
 r ^ 
 
 ployer of the wo rkman, un less notice that injury has been"su8 - 
 tained is given within twelve weeks, and the action is coin - 
 inonced within snTTiToiilTis troni tlie occurrence of the accident 
 causing the injury, or incase of death within twelve month s 
 from the time of death ; provided always that in case of death 
 the watit of such notice sha,ll be no bar to the maintenance of 
 such action, ii the Judge shall be of opinion that there was 
 reasonable excuse for such want of notice. 55 V. c. 30, s. 9. 
 
 
 1 0. No contract or agreement made or entered into by a Contract by 
 workman sh all be a bar or constitute any defence to an action workman when 
 
 1. ,, 1 ,, • A X 1? L- e • • to constitute a 
 
 tor the recovery under this Act ot compensation tor any injury, deft^nce to 
 
 1 . Unless for such workman entering into or making ^,*,',p"ngation 
 such contract or agreement there was other con - 
 sidera tion than that of his being taken into or 
 continutHT in the employment of the defendant ; 
 nor 
 
138 
 
 Sec. 13(1). workmen's COMPENSATION FOR INJURIES. Chap. 160. 
 
 2. Unless anyh other considerati( ;i n was '"n the opiaion of 
 
 the Court or Judge before whom such action is 
 tried, ample and adequate ; nor 
 
 3. Unless , in the opinion of the Court or Judge, such con - 
 
 tract or agreement, in view of such other considera- 
 tion was not on tlie part of the workman, improvi - 
 dent , but was just and reasonabl e ; 
 
 and the burden of proof in respect of such other consideration, 
 and of the same being ample and 8''.equate, as aforesaid, and 
 that the contract was just and reasonable and was not impro- 
 vident as aforesaid, shal l, in ali cases, rest upon the defendant ; 
 Provigo. Provided always that notwithstanding anything in this 
 
 section contained, no contract or agreement whatsoever made 
 or entered into by a workman shall be a bar or constitute any 
 defence to an action for the recovery under this Act of com- 
 pensation for any injury happening or caused by reason of any 
 of the matters mentioned in section 5 of this Act. 55 V. " 3»), 
 s. 10. 
 
 Liability 1|. Notwithstanding anything contained in this Act, an 
 
 sentati*^'"^^ action under section 3, 4 or 5 shall lie against the legal pei' - 
 
 sonal representatives of a deceased employer . 55 V. c. 30, s. 11. 
 
 Mon«?yi)ny- t'i. There .shall be deducted from any compensation awarded 
 
 able under ^g any workman or representatives of a workman, or persons 
 
 penalty to bo i • •• i i ^ , i i i • j. i- 
 
 deducted fiMiri cliummg by, undor, or through a workman in respect oi any 
 compensation, cause of action arising under this Act, any penalty or damages, 
 or part of a penalty or damages which may in pursuance of 
 any other Act, either of the Parliament of Canada, or of the 
 Legislature of Ontario, have been paid to such workman, 
 representatives or persons in respect of the s ame cause o f 
 actio n ; and where an action has been brought under this 
 Act by any workman, or the representatives of any workman, 
 or any pensons claiming by, under, or through such workman, 
 for compensation in respect of any cause of action arising under 
 this Act, and payment has not previously beeu made of any 
 penalty or damages, or part of a penalty or damages under 
 any such Act, either of the said Parliament, or of the said 
 Legislature, in respect of the same cause of action, such work- 
 man, representatives or persons shall not, so far as the said Legis- 
 latui'e has power so to enact, be entitled thereafter to receive 
 in respect of the same cause of action, any such penalty or 
 damages, or part of a penalty or damages, under any such last- 
 mentioned Act. 55 V. c. 30, s. 12. 
 
 Form and ser 
 vice of notice 
 •f injury. 
 
 11^ — (1) Notic e in respect of an injury under this Act shall 
 give the name and address of the per.son injured , and shall state 
 in ordinary language th e ca,use of the irijtiry and the date at 
 which it WIS sustained, and shall be served on the employer , or 
 if there is more than one employer, upon one oi' such em- 
 ployers. 
 
Chap. 160. workmen's COMPENSATION FOUINJUHIES. Sec. 13(2), 
 
 139 
 
 (2) The notice may be served by deUvering the same to or 
 at the residence or place of business of t'le person on whom it 
 is to be served. 
 
 (3) The notice may also be served by post, by a registered 
 letter addressed to the person on whom it is to be served at his 
 last known place of residence or place of business, and if served 
 by post shall be deemed to have been served at the time when 
 a letter containing the same would be delivered in the ordinary 
 course of post, and in proving the service of such notice it 
 shall be sufficient to prove that the notice was properly 
 addressed and rpjfjstered . 
 
 (4) Where the einjjloyer is a body of persons corporate or 
 unincorporate the notice shall be served by delivering the same 
 at or by sending it by post in a registered letter addressed to 
 the office, or if there be more than one office, any one of the 
 offices of such body. 
 
 (5) The want or insufficiency of the notice r equired by this 
 sect JonTor l)v section 9 of this Act, . shall not be a bar, to the 
 maintenance of an action for the recovery of compensation for 
 the injury if the Court or Judge before whom such action is 
 tried, or, in ca.se of appeal, if tlie Court hearing the appeal is_ 7^ , 
 of opinion that there was reasonable excuse for .such want or 
 insufficiency , and that the defendant has not been thereby 
 prejudiced in his defence . 
 
 (6) A notice under this .section shall be deemed sufficient if 
 in the form or to the eflect following : — 
 
 To A. B., of {liere iiisert employer's address) 
 or 
 
 % 
 
 To the 
 
 Company, (or an tlie case may be.) 
 
 r' - 
 
 :? 
 
 Take notice, that on the day of 18 , C. D., of (insert 
 
 (idilresn of injured prr.vin) a workman in j'our employment sustainecl per- 
 sonal injury, (<«/(/, of which lie died, if such Iw tite cusii,) and tliat such 
 injury was caused by (statr shortlii ihc cause of injury, c.ij., the fall of a 
 beam.) 
 
 • (Date.) 
 
 Yours, etc., 
 
 .Y. r. 
 
 55 V. c. 30, s. 13. 
 1 4. If the defendant in any action against an employer for ^^^^^^'^f °f 
 
 ,. ,. . . . • 1 ? 1 ^ • ji want of 
 
 compensation tor an injury sustai. ' by a workman in the notice or not 
 cour.se of his employment intends to rely for a defence on th e 'he plaintiff's 
 vyant ot notice or the insufficiency of notice^ or on the groun d ""'^ °^^'^' 
 that h e was not the employer of the workman iiijured , fie 
 shall, not less than seven days before the healing of the action, 
 or such other time as may be fixed by the rules regulating the 
 practice of the Court in which the action is brought, give 
 notice to the plaintiff of his intention to rely on that defence, 
 and t he Court may_, in its discretion, and upon such terms and 
 conditions as may be just in that behalf, order and allow an 
 
 M 
 
140 
 
 See. 16 (5). workmen's compensation for injuries. Chap. 160- 
 
 adiournment of the case for the purpose of enabling .such 
 noiice to be give n ; and, subject to any such terms and con- 
 ditions, any notice given pursuant to and in compliance with 
 the order in that behalf, shall, as to any such action and for 
 all purposes thereof, be held to be a notice given pursuant to 
 and in conformity with .sections 9 and 13 of this Act. 55 V. 
 c. 30. s. U. 
 
 Particulars of 
 demaiiil. 
 
 t 
 
 15. In an action brought under this Act the particulars of 
 demand or statement of claim shall state in ordinary langua ge 
 the cause of the injury , and the date at w hich it was .sustain ed, 
 and the amounFof coinpensation claimec f; and •yzherj the action 
 i s brought by more than one |)lain ti fF. the amount of com])e n - 
 sation claitned by each plaintiff, and where the injury of which 
 tlTe plaintiff complains shall have arisen by reason of the 
 negligence, act, or omission of any person in the service of 
 tiie_ d_e fondan t, t he particulars shall give the name and descrip - 
 tion of such person. 55 V. c. 30, s. 15. 
 
 Application 
 for ajjpoint- 
 ment of 
 assessors. 
 
 10. — (1) Upon the trial of an action for recovery of com- 
 pensation under this Act before a Judge without a jury, one or 
 more assessors may be appointed by the Court or Judge for the 
 purpose of a.scertaining the amount of compensation; and the 
 remuneration (if any) to be paid to such asses.sors shall be 
 fixed and determined by the Judge at the trial. 
 
 (2) Any person who shall, as hereinafter provided, be ap- 
 pointed to act as an assessor in such action, shall be qualified 
 80 to act, 
 
 (3) In such action, a party who desires assessors to be 
 appointed shall, ten clear days at least before the day for ho ld- 
 i ng the Court at which the action is to be tried, file" an 
 application stating the number of assessors he proposes to b e 
 appointe d, and the names, addresses and occupations of the 
 persons who may have expressed their willingness in writing to 
 act as assessors . If the applicant has obtained the consent of 
 the other party to the persons named being appointed, he shall 
 file such consent with his application. 
 
 (4) Where the application for the appointment of assessors 
 has been made by one party to an action only, he shall, eight 
 clear days at least before the day for holding the Court at 
 which the action is to be tried, serve a copy of the application , 
 so filed, upon the other party, who may then either file an 
 application for assessors, or file objections to one or more of the 
 persons proposed. 
 
 (5) An application for the appointment of assessors may be 
 in the form following, or to the like eft'ect, namely : — 
 
Chap. 160. workmen's compensation for injuries. Sec. 10 (5) 
 
 141 
 
 In the (descrihimj the Court ) 
 
 " The Workmen's Compensation for Injuries Act." 
 
 Betwken, 
 
 and 
 
 Plaintiff, 
 Defendant. 
 
 The plaintiff (or defendant) applies to have an assessor {or assessors) 
 app"inted to assist the Court in ascertaining the amount of compensation 
 to be awarded to tlie j)laintiff, should the judgment be in his favour, and 
 he submits the names of the following i)erHon8, wlio have expressed their 
 willingness in writing to act as assessors should they bo appointed. 
 
 (Here set out the nameii, addresnes and ocaipationi' of the jjeraoiia above 
 referred to.) 
 
 (If the other party conmnta to tJie appointment add the followhuj) : — 
 
 The defendant (or plaintiff) consents to the appointment of any of 
 the persons above named to .act as assessoi-s in tiiis action, as .appears by 
 his consent thereto filed herewith. 
 
 :3a 
 
 Dated this 
 
 d.ay of 
 
 A. B. 
 
 The above named plaintiff, (or as the case may be. 
 
 (6) Where separate applications are filed by the parties, no 
 objection to the persons proposed shall be made by either 
 party, but the Court or Judge may appoint from the persons 
 named in each application one or more asses,sor or assessors, 
 provided that the same number of assessors be appointed from 
 the names given in such applications respectively. 55 V.c. 30, 
 s. 16 (1-6) 
 
 1 1. In case any such action is brought in a Division Court the Assessors in 
 applications for the appointment of assessors, together with Division 
 any objections made to the persons proposed, shall be forwarded 
 by the' clerk of the Court to the Judge. 55 V. c. 30, s. 16 (7). 
 
 1 8. Where application for the appointment of assessors is Appointment 
 granted, the Court or Judge shall a])point such of the persons j^^le'"^' "' 
 proposed for assessors as by the Court or Judge may be deemed 
 tit, subject to the provisions contained in this Act. 55 V. c. 30, 
 s. 16 (8). 
 
 lt>. In such action where an application for the appoint- Additional 
 ment of assessors has been filed, the Court or Judge may, at ***'"'"°"- 
 any time prior to the trial thereof, nominate one or more 
 additional j)ersons to act as assessors in the action. Where no 
 a|)plication for assessors has been made, the Court or Judge 
 may appoint one or more persons to act as assessor or 
 assessors in the action before or oh the trial of i-he action. 
 55 V.c. 30, s. 10(9). 
 
 UO. It' at the time and place appointed for the trial all or any Where as- 
 of the assessors appointed do not attend, the Court or Judge ^j^g"" ^^ °°* 
 may either proceed to try the action with the assistance of such trial. 
 
 
142 
 
 Sec. 20(1). workmen's compensation fou injuries. Chap. 160 
 
 of the assessors, if any, as do attend, or may adjourn the 
 trial (generally, or upon any terms which the Court or Judge 
 iiuiy tliink tit, or may appoint any person who may be avail- 
 able and who is willing to act, and who is not objected to, or 
 who, if objected to is objected to on some insufficient ground, 
 or the Court or Judge may try the action without assessors. 
 55 V. c. 30,8. 16(10). 
 
 Proviso. 
 
 By whom cnst 
 of additional 
 aseeasors 
 borne. 
 
 Where trial 
 does not take 
 place. 
 
 Deposit of •> I Every person requiring the Court or Judge to be assisted 
 
 assessor's fee?, j^^^ assessors shall at the time of tiling his application 
 deposit tlierewith the sum o*" S4 for every assessor ])ro- 
 posed, and such payments shah be considered as costs in the 
 action, unless otherwise ordered by the Court or Judge : 
 Provided, that where a person proposed as an assessor shall 
 have in writing agreed and consented that he will not require 
 his remuneration to be so deposited, no dejiosi'; ir respect of 
 such person shall be required. 55 V. c. 30, s. 16 (11). 
 
 *<}?{. Where an action is tried by the Court or Judge 
 with the assistance of assessors in addition to or indepen- 
 dently of any assessors proposed by the parties, the remuneration 
 of such assessors shall be borne by the parties, or either of 
 them, as the Judge or Court shall direct. 55 V. c. 30, 
 s. 16 (12). 
 
 'Hi. If after an assessor has been appointed the action shall 
 not be tried, the Court or Judge shall have ])ower to make an 
 allowance to him in respect of any expense or trouble which 
 he may have incurred by reason of his appointment, and direct 
 the payment to be made out of any sum deposited for his 
 remuneration. 55 V. c. 30, s. 16 (1.3). 
 
 *'J4. The assessors shall sit with and assist the Court or 
 Judge when required withtheii- opinion and special knowledge 
 for the purpose of ascertaining the amount of compensation, 
 if any, which the plaintiff shall be entitled to recover. 
 55 V. c. 30, s. 16 (14). 
 
 35. — (1) Where several actions shall be brought under this 
 Act against a defendant; in the same Court in respect of the 
 same negligence, act or omission, the defendant shall be at 
 liberty to apply to the Judge that the said actions shall be 
 consolidated. 
 
 (2) Applications for consolidation of actions shall be made 
 upon notice to the plaintiff s aflfected by such consolidation. 
 55 V. c. 30, s. 17 (1, 2). 
 
 i Staying sever- 'Hi. — (1) In case several actions shall be brought under this 
 abidt'result ^^^ against a defendant in the .same Court in i-espect of the 
 of one. same negligence, act or omission, the defendant may, on filing 
 
 an undertaking to be bound so far as his liability for such 
 
 Duty of 
 assessorii. 
 
 .Consolidatio n 
 of actions. 
 
Chap. 160. workmen's COMPENSATION FOR INJURIES. Sec. 26(1). 
 
 143 
 
 negligence, act or omission is concerned by the decision in such 
 one of the said actions a.s may be selected by the Court or 
 Judge, apply io ;he Court or Judge for an order to stay the 
 proceedings in the actions other than in the one so .selected, 
 until judgment is given in such selected action. 
 
 (2) Applications for stay of |)roceedings shall be made 
 u pon notice to the plaintiffs affected by stay of proceedings 
 or ex part e. 55 V. c. 30, s. 17 (3, 4). 
 
 58T. Upon the hearing of an appplication for consolidation Terms of con- 
 of actions or for stay of proceedii.^^s, the Court or Judge shall soi'dation «r 
 have power to impose such terms and conditions and make such 
 order in the matter as may be just. 55 V. c. 30, s. 17 (5). 
 
 !?8. If an order shall be made by a Court or Judge upon an Varying 
 ex parte application to stay proceedings, it shall be comp^tetlt'"'''*®''- 
 to the plaintiffs affected by the order to apply to thep(?urt or 
 Judge (as the case may be) U|)on notice or ex part e,'m vary or 
 discharge the order so made, and upim .such last mentioned 
 application such order .shall be made as the Court or Judge 
 shall think fit, and the Court or Judge shall have power to 
 dispose of the costs occasioned by such order as may be deemed 
 right. 55 V. c. 30, .s. 17(6). 
 
 
 ?Jt>. In case a verdict in the selected action shall be piven Removal of 
 a gainst the defendan t, the plaintiffs in the actions stayed shall * *^* 
 be at liberty to proceed for the purpos e of ascertaining and re- 
 covering Llitiir damages and uuHtM: 55 v. c. 3U, .s. iV vO- 
 
 30. Where two or more persons are ioined as plaintiffs u nder Damages to 
 section 2;'), and the ne<fligence. act or omission which is assesged. 
 the cause of action shall l)e proved, the judgment shall 
 be for all the plaintifl's, but t he anioimt of compensation , if 
 any, that each plaintiff is entitled to shall be sepai-at:ly found 
 and set forth in the judgment, and the amount of costs 
 awai'd'.^d in the action shall be ordered to be paid to such 
 person, and in such manner as the Court or Judge thinks 
 fit ; should the defendant fail to pay the several amounts c* 
 compensation and the costs awarded in the action, executi on 'execution, 
 may issue as in a,n ordinary action and should the proceed.s~of 
 the execution be insufficient, after deducting all costs, to pay 
 the whole of the amounts awarded a dividend shall be paid to 
 each plaintiff, calculated upon the propoition of the amount 
 awarded to the respective plaintiffs to the total amount realized 
 after the deduction of all the costs of the action as aforesaid 
 55 V. c. 30, s. 17 (9). 
 
 151. A_de££ ndant may by notice to the opposite party to b e Admissions 
 given or sei vedat least six days before the day appointed for ^^ no''c«- 
 the tria l of the action, admit the truth of any statement of his 
 liability for any alleged negligence, act or omission as set 
 
 r' 
 
 r - 
 
 eg 
 
 •- .1 
 
141 
 
 Sec. 33. workmen's compensation for injuries. Chap. 160. 
 
 Where time 
 expires on 
 a holiday. 
 
 Forms and 
 rules. 
 
 forth or contained in the plaintiffs statement or particular.s of 
 claim in the action, and after such notice {^iven the plaintiff 
 shall not be allowed _anj^jcpenafi-Ji hereaf ter incurred for th e 
 purpose of _2)roving the mattei'S so admitted . 55 V. c. 30, 
 
 32. Where the time for doing any act, taking any pi-oceed- 
 ing, or giving any notice under or required by this Act expiies 
 on a holiday such act, or proceeding, or notice shall, so far as 
 regards the time of doing, taking or giving the same, be held 
 to be duly and sufficiently done, taken or given, if done, taken 
 or given, on the day next following which is not a holiday 
 55 V. c. 30, s. 18 ; GO V. c. 3, s. 3. 
 
 33. In an action brought in any Court to recover compen- 
 sation under this Act, the forms and methods, and the rules and 
 orders in force in the Court shall, subject to and save as other- 
 wise provided by the terms and provisions of this Act, apply to 
 and regulate all matters of pleading, practice and procedure in 
 such action, and notwithstanding anything in this Act contained, 
 the forms and method, and the pleadings, practice and pro- 
 cedure in any such action shall conform to and be regulated by 
 any rules or orders in that behalf hereafter lawfully and duly 
 made or prescribed with respect to actions brought in anv such 
 Court. 55 V. c. 30, s. 19. 
 
WORKMKN S COMPENSATION FOR INJURIES. 
 
 145 
 
 NOTES. 
 
 Change made by the Act. Tlic ettbct of tlic Act is to leniuvo in n liniitcil 
 ihiiiiIkt of <ascs the (locti'iiic of (.'Oininoii finploynu'iit. At loiiiiiioii law tlu' 
 iiiiistiT \v:is rt's))oiisil)l(' to the servant for liis pcisoiial iicfiligoncc^, Imt was not 
 liable for injury received from any orilinary risk ot or incident to the service, 
 iiKliiiliiig acts or defaults of aiiv other |)erson eiiii)lo}e<l in the same service. 
 
 'Die principle of tiie Workmen's (,'oinpensation .Vet is to remove tlie doctrine 
 one stc)) and niaivc tht^ master answenihle for the conduct of tiiose to whom he 
 Im ■ (lele>,'ated his autlioiit.' ; .Morrison v. Baird (18S-2; It) Rettie 271. 
 
 Defences given to the Master. At common law a master who emploj's a ser- 
 vant in a woik of dangei-ous i haracter is liound to take all leasonalile ])reeau- 
 tious for the workman's safety. Vnr defective machiiu>ry or a defect ivesystinn 
 of using machinery, lie is responsilile, and his ignorane(! would not bar the 
 workman's claim, as he is hound to see that his works and maehinev were free 
 fnmi defect; Smitli v. liaker (18<»1 ) A.(J. 348; Webster v. Folev (■l8!l2) 21 .S. 
 CM. .-)80 ; Kairweathei' v. Owen Sound (^>uairv (.'o. (ISit.j) 2(10. H". ()04 ; but see 
 OrilHth V. St. Katharines Dock Co. (1884) 13 i^H.l). 2.->}). l!y s. « (3) know- 
 ledge of the defect or negligence liy the workman and liis failure without 
 reasonable cause to give information thereof witliin a I'easoiialile time is a 
 defence unless the workman was awaie that the emjiloyer or some person sup- 
 erior to the worknvm in the serviite of the em|)l;)yer knew of tlu; defect or 
 negligence. 
 
 Other new defences are the want of notice of action and a limitation of six 
 months to bring the action, except in cases of deatli. .ss. 9 and 13. 
 
 Workmen not within the Act : 
 
 (a) Domestic or nu'uial seivants and 
 (1)) Servants in husbandry, gardening or fruit growing, 
 (c) Persons not engaged in maiuial labor except railway servants, are 
 not entitled to the benetit of tlie Act. It is a (juestion for the jury whether the 
 hiring of the workman was as a servant in the excej)ted class and whether 
 the work he was engaged in was in the usual c(mrse of hisem))loynient assuch ; 
 Reii' V. Barnes (1894) 2") O.K. 223. An onniibus tonductor Morgan v. London 
 General Omnibus Co. (1884) 12 (^ 15. D. 2(11 : 13 (.). 15. 1). 832, and a grocers 
 assistant 15<mnd v. Lawrence (1S92) 1 Q. B. 220, have been hi^ld to lie outside 
 the act. A j)otman in a public house is substantially a menial oi- domestic 
 servant; Pearct^ v. Lansdowne (1893) ti2 L..I., l^.H. 44L A man jiromi.sed a 
 job on tlu> following day is not a workman ; Cowler v. Moresby Coal Co. (1885) 
 1 T.L.H. ri7."). 
 
 Superintendence. An employer is liable for the negligence of a servant who 
 has any siiperinten<lence entrusted to him while in the exercise of such super- 
 intendence. The Knglish act makes tlu; master lesponsibie for sucli a supei'- 
 intendent old,' when he is not or<linarily engaged in manual labor. Under the 
 Oi\tario Act a woikman may be a superintendent although ordinarily engaged in 
 mainuil hd)or,s. 2(1). Siu'perintendenite means suchgeiieralsuperiiitendence over 
 workmen as is exerci.sed by a f</reman or person in like position to a foreman. 
 The on\is is on the plaintiff to show wiiat the negligent man's duties were. 
 It tluMi beiiomestho duty of the Judge to determine whetlu'r tluMi^ is anj' evi- 
 dence tliat he had such su|)erintendence an<l control as to make his orders im- 
 perative ; (iailand V. Toronto (189(1) 23 .\. R. 238. The employei' is respon- 
 sible for the negligence? of a clerk of the works employed liy him ; Kearney 
 V. Nichols (1883) 7(> L. T. Journal 03 ; also foi- the failure of a foreman to 
 notify a workman that a shaft has been disconnectcil ; .\itken v. New|)ort Dock 
 Co. (1887) 3 T. L. R. r)'s~. The negligen ve nnist be whilsi ni tlieoxercise of super- 
 intendence ; Shafl'ers v. (ieneral Steam Navigation Va>. (1883) 10 (^VB. !). 3.)0 ; 
 Harris v. Tinn (1889) r> T.L.R. 221 ; Osborne v. Jackson (1883) 11 Q.B.I). B19. 
 
 Workmajl. A driver who supjJies his own waggon, the emiiloyer supplying 
 the horses is a workman ; Yarmouth v. Fraiu^e (1887) 19 (^1 15. D. (i47, and so is 
 a slater who works by the piece, aiul wlio is injured liy unsafe scallolding sup- 
 plied by his employei- ; Stuart V. Hvans(1883) 49 L. T. 138. A man loaned 
 Iiv his eiiiplover to another whose orders he « as bound to obev is a workman 
 oif tiie borrower within th.; act ; Wild v. Waygood (1892) 1 (^15. 783. 
 
 K 
 
 :yz. 
 
 
 
 r *• 
 
 CO 
 
 7^ o 
 
146 
 
 workmen's compensation for injuries. 
 
 Railway Servants. KaihviiyH uikUt the Icf^islative jurisdiction of the Doiniii- 
 idii I'lifliaiiifiit are sijliject " to tlie Aet ; Canada Southern Railway Co v. 
 Jackson (ISilO) 17 S.C. K. ;tl(i ; e:ce|)t where they relate to tiie construction or 
 arrangement of the railway itself, e.g. s. ."» ; Monkhouse v. (Jrand Trunk Hy. 
 Co. (ISSS) S A.R. (i,S7 : W'asliingtoii v. (Irand Trunk Ry. Co. (18i)7) 24 A.R. 
 1S3. The provisions oi the Dominion Railway Act, (.")1 V. c. "Jit, s. '_'S9) are 
 intra n'trn ar.d a workman suing tliereinider is not restricte<l to the HUU)unt of 
 conijjensation jirovided liv the Workmen's Compensation Act ; Ciirran v. 
 Grnn<l Trunk Hallway Co."(lS!)S) lU C.L..J. 784. 
 
 What is a Defect. 
 
 Defect. Many cases have arisen as to what is a defect. A maeliine inav lie 
 dangerous hut not defective. The Aet is not directed against dangerous 
 machines out against tlie negligence of employers. It must he a defect in the 
 condition of the maeliine having regard to the use to which it is to he aj)plied, 
 or to the mode ill which it is to lie u.sed. It may lie a defect either in the 
 original construction of tin- machine or a defect aiisiiig from its not lieing kept 
 up to the mark, liiit it is essential tiiat tlierc siioiild lie evidence of negligence 
 of the emphiycr or s<ime person in his service entrusted with the duty of see- 
 ing that the machine is in projier condition. It must lie a defect in the original 
 constru<'tion or siilise(|iient idiidition of the machine rendering it unfit for the 
 jmrpo.scs to which it is applied when used with reasonable care and caution, 
 and a defect arising from the negligence of the einjiloyer ; Walsh v. Whitely 
 (1888), 21 Q.B.I). 371. 
 
 A lack or ahsence of something essential to completeness is a defect ; pr'r 
 Bruce, J., Tate v. Latham 08!»7), 1 Q.B. ."lOti. 
 
 The following are 'nstaiices of neglect for which the master was hold to he 
 responsilile : 
 
 AVliere the sides of a lift were not fenced to ])revent coke falling therefrom, 
 and a lower platform was not roofed to protect tlio.se woiking u|)oii it from falling 
 coke and a workman was killed. Ifcske v. Samuelsoii (ISH.S). 12 (^15.1). :10. A 
 ladder which was used to support a scatt'ohl and was insutKcient for that pui- 
 pose; Cripps v. Judge (1884), I'.i tJj.B.D. 583. 
 
 A ladder wliiih had to he jilaced against a jujie was uiLsafo hy reason of 
 being without hooks or stavs which weie ncce.s.sarv owing to a bend in tiic 
 pipe; Webliii V. Ballard ( 1881)), 17 V.B,I). 122. 
 
 A roller wiiich could be ina<le in one piece was made in .several sections, with 
 interstices into which jute sometimes got and had to be removed liv hand ; 
 I'aley v. ( Jarnctt ( 1 S8,-.),' Hi Q. H. I ). 2.-)2. 
 
 A bolt, sound in itself, is defective when used to bear a weight too heavy 
 for it ; Irwin v. Dcnnystown Forge Co. (188.-)), 22 Sc.L.R. 379. 
 
 A kicking horso ; Yarmouth v. France (1887), 1!» tt).B.l). 047. 
 
 A horse liable to fall : Hastoii v. Kdinburgh !St. Tramways (^i. (1887) 
 Rettie ()2I ; Frascr v. llooil " 
 
 14 
 
 0<)1. 
 
 A low railroad bi"!dge 
 
 (188'; 
 
 llllO|)C 
 
 \:> Rettie 178. 
 v. Columbia R.R. Co. (1884), Xl Amer. 
 
 A too narrow passage ; Mite In 
 
 , Holdsworth (1883), 7() L.T. iOl. 
 
 A loose scTcw which caused a guaiil to slip li\- which |(laintill's hand came in 
 contact with a .saw : Amos v. Dully (I8!)()). (i 'I'. L.I!, XM. 
 
 A maeliine perfectly ellective for tlu^ puipose for which it is used may be 
 defective if umiccissiirily dangerous ; Morgan v. Hutchins (I8!t0), .lit L.J.Q. H. 
 I!t7 ; or if projicr means to scene .safety in the opc'alion for wliich it is used 
 are absent : Stanton v. Scrutton (18!t3)i ()2 L.J.Q. 15. 4(l.->. 
 
 A ma(!hine which would not go without touching ; Sandar< v. Haiki'r (18!K)>, 
 OT.L.R. 324. * 
 
 Swinging stones (which sometimes fell) over the heads of •vorkmen, w ithout 
 any system of warning ; Smith v. Baker (1891), A.C. .Tio. 
 
 Neglect to shore up wall of building lii'ing pulled d','>ii ; Brannigan v. Robi- 
 son (1892), 1 g.B. 344; or the sides of a drain ; McCoJ v. Black (1891), 18 
 Rettie mi. 
 
 Unfenced and unlighted tank, which was usuallv lighted. ■ n a ship in course 
 if con.strucfion ; Jamicsou v. Russell (1892), 19 Rettie 1898. 
 
WORKMEN S COMPENSATION FOR INJURIES. 
 
 147 
 
 Neglect to supply proper waste for cleaning machinery, or to stop niachineiy 
 
 cleaning r 
 V. Wright 
 
 while cleanii.g gj-ing on ; Thompson v. Wright (1892), '22 O.R. 127. 
 
 Neglect to perform statutory iliity, as liy fencing or guarding a revolving 
 shaft, is a defect in arrangement; Mc(ilohertv v. (iale Manufacturing Co. 
 (1S!»2), 19 A.R. 117 ; O'Connor v. HamilUm Brillgc Co. (1H94), 2.-) O.R. 12 ; 21 
 A.R. oWi; 24 S.C.R. r)98 ; Kervin v. Canadian Cotton Mills Co. (189(i), 28 
 0. R. 7:1 ; 2.-) A. R. 3«. 
 
 Worn out lilocks supplied to plaintiff to check sawlogsoii rollway ; Wehster 
 V. Foley (1892), 21 S.C.R. 580. 
 
 Crane occasionally slipping without cause ; Bacon v. Dawes (1887), 3 T.L.R. 
 057. 
 
 Piece of iron living out of furnace when door opened ; McOuirc v. Cairns 
 (1889), 17 Rettie ;")4(». 
 
 Door crushing man's fingers in dosing; .lohnstone v. .Mitchell (18S4) 24 
 Sc.L.R. (i98. 
 
 A puUev from which the belt was in tlic hahit of slipping off; Baxter v. 
 Wynian (1887), 4 T.L.R. 2.-),-). 
 
 Failure to stretdi a tarpaulin to prevent iron falling on workmen working 
 below ; Thiussell v. Handyside (1888), 20 Q.B.I). .S.W. 
 
 Failure by a loom fixer to examine a loom althougli notified that something 
 was wrong ; Canadian Cotton Mills Co. v. Talbot (1897) 27 S.C.R. 198. 
 
 Bolts not sufficiently strong fastening the cover of a tank for boiling soap, 
 which insufficiency probably caused an explosion ; Badcock v. Freeman (1894). 
 21 A.R. (m. 
 
 Having car buffers of ui' qu. 1 heiglits .so that in cniiijling, tlie Ijutl'crs over- 
 lap])cd and offered no ])rotcotioii to the pi-rson making the coupli.ig ; Bond v. 
 Tonmto Railway Co. (l89o), 24 S.C.R. 71.'); Donohue v. Brooklyn City R. Co. 
 (bS.")!)), 14N.Y. Super. Ct. ().'}9 ; or not providing suitable links to couple them; 
 Denver T. & (I. R. Co. v. Simpson (1891), 10 Col. 55. 
 
 Neglect to cover a dangerous part of a revolving sliaft tein[)oiaiily with 
 boards or to disconnect the .shaft or .stop the whole machinery while liic plain- 
 tiff was working near it making repairs; Matthews v. Bouchard (1898), 28 
 S.C.R. 580. 
 
 which workmen were 
 (1887), 2 T.L.R. 881 ; 
 
 InsuHicient or loose planking across a hole over 
 iiMinired to pass ; Bromley v. Cavendish Sjiinning Co, 
 (.'aldwell V. Mills (189.S), 24 O.R. 4(i2. 
 
 An uiifcnced ajjerture for a stairway ; Woo<l v. Darrall 
 
 Latham 
 
 a|)erture for a stairw 
 The want of a guai<l to a itircular saw ; Tate v. 
 
 1880), 2 T.L.R. 
 1897), 4 Q.B. ,-)02. 
 
 r - 
 
 "What is not a Defect. 
 
 No defect. On the other hand the following are instances where there was 
 
 no defect : - 
 
 A lighted match blew into a l)aiii'l of gunpowder, and tlie workmen might 
 have covered it up ; .Mulligan v. .Mc.Vlpine (1888), 15 Rettie 78. 
 
 An iron bar was not put in the proper place ; but there was no evidence of 
 negligence of any person for wiioiii the master was responsible ; I'ooley v. 
 Hicks (1889), 5 i'.L.R. ():19. 
 
 .An unfcnccd iiolc in a sliip in course of construction : Koisyth v. Ramago 
 (1891 ), 18 Rcttit^ 21, or in a way where the woikman knew of the iiolc Imt for- 
 got it; .McShane v. Baxter (1891), 7 T.L.R. 58, oi' should iiave gone a safe 
 way ; I'rilcli:ii(l v. Lang (1889), 5 'I'.L.R. ,'t;t9, or in a way wliirh he was not 
 rc(|uircd to use in the course of his employnieiit ; Finlay v. MiscanipljcU 
 (18911), 20 O.R. 29. .\n unfcnccd apcialurc impossible to fence while men 
 were at work repairing a bciist, and which ])laintill'ioiil(l iiave si^eri ; Hcadford 
 v. McClarv .Manufacturing Co. (IS9:t), 2a O.R. .'Wo; 21 A.R. 104; 24 S.C.R. 
 291. 
 
 \ liarrel slipju'd, but the workman had pcifoinicd tlic same openition .safely 
 for four years and there was no suggestion that other means ought to l)e taken ; 
 Watt v."NeilH()ii (1888), 15 Rettie 722; but see I'revisti v. (Jalti (I8.S8), 4 
 T.L.R. 487. 
 
U8 
 
 workmen's compensation for injuries. 
 
 A well was left for a staircase in a building in course of erection ; Conway 
 V. Clenience (188,-)), 2 T.L.R. 80. 
 
 A way oon.sisting of ii well iiolc in a Imilding in course of erection up which 
 workmen came t)y a ladder is not defective l)ecause means are not taken to 
 prevent iul)l)iHli being tin-own down; Pegram v. Dixon (i88ti), 55 L.J., Q.B. 
 447 ; see Ayres v. Hull (ISS'I), 5 T.L.R. -iO'i. 
 
 An employer is not liouiid to sup))ly tlie latest or most im|)r()ved macliineiy 
 or a])pliun(es. If an impnivcment is suggested tii(! cvi(len"e nnist sliow that 
 it is capable of l)eing worked; Hutlrr v. Birnbauni (1891), 7 'J\L. R, 287; 
 Crafter v. Metropolitan Ry. Co. (1866), L.R.O. 1 C.P. 300. 
 
 A .safety catcli on an elevator supjilied )iy a competent contractor and the 
 use of winch is not mnea.sonable is not defective, even thougii it should ))e 
 sliown that a catch of ditl'er(uit pattern had been long in use, and miglit have 
 prevented tiie accident ; Black v. Ontario Wiieel Co (1890), 19 O. R. 578. 
 
 A wheel or jmllcy on which a workman had to place his hand wliile in 
 motion was made with holes wliich caused the injury, and the evidence siiowed 
 such wheels were sometimes made without holes, but commonly witli them ; 
 Walsii v. Wliitely (1888), 21 (^H.D. 371. 
 
 A boj' was iiijured by iron standiions he was moving falling otl' a truck, the 
 plant was held not to be defective because of the neglect to pack the stanchions 
 so as to ])rotect them for falling oft' ; Corcoran v. East Surrey Iron Works Co, 
 (1889), 58 L..1.Q.15. 14,-). 
 
 A bolt projected too far and jjlaintift-s finger was injured by it, but there 
 was no evidence that from its length injury was likelv to happen ; Bridges v. 
 Ontario Rolling Mills Co. (1890), 19 O.R. 731. 
 
 Where there is mei-ely a latent defect not known to t'.e em})loyei', he is not 
 lialilc, unless he could have discovered the same by the exercise of rea.sonable 
 care; Han.son v. Lancashire &; Y(jrkHhire Rv. Co. (I872K 20 W.K. 297; 
 Badgerow v. (irand Trunk Ry. Co. (1890), 19 O.R. 191. 
 
 The want of a guard to a saw is not a defect ; Hamilton v. (4roesbeck 
 (1889), 19 O.R. 76; except, j)erliaps, where the Factory Act applies, .Sc. ; 18 
 A.R. 437 ; see Kite v. Lon<lon Tramways Co. (Timet, 30 Jan. 1890), 19 O.R. 
 737; but see Tate v. Latiiam (1897), 1 Q. B. 502, in which the ab.sence of a 
 guard to a saw was held to be a defect. A defect in a way must be in its per- 
 nuiuent or ipiasi -permanent condition. A meic temporary obstruction is not 
 a defect ; McOillin v. Palmer's ,Ship liuihling Co. (1883), lt)Q.B.D. 5 ; Pegram 
 v. Dixon (1880), ,-)5 L..J.Q.B. 447, an<l if an obstruction is removed and place<l 
 at the side, the way is not defective ; McQuade v. Dixon (1887), 2* Se. L.R. 
 
 The removal of the lid of a well in the ordinary course of occasional neces- 
 sity is not a defect in the well. It may amount to actionable negligent user 
 when the proper »' \rtv to give warning is a person exorcising superintendence ; 
 Willctts V. Walt (1892), 2 Q.B. 92. 
 
 Ways. A way is a place used by tiie workmen in the performance of thoii' 
 duty in ])assing from one part of the ))! cinises to another. It need not be a 
 defined path. Willctts v. Watt (1892). 2 Q.B. 92; Caldwell v. Mills (1893), 
 24 O. R. 462. An uneven depression tille<l with slips of wood covered by a 
 thin covernig of iron is a way; Bowie v. Rankin (1886), 13 Rettie 981. A 
 j)lace where it is not necessary for the workman to go in the performance of 
 his duty is not a way for which the master will be responsible to him for its 
 defective condition ; Findlay v. Miscampbell (1890), 20 O.R. 29 ; Headford v. 
 McClary Manufacturing (^o. (1893), 23 O.R. .'1.35; 21 A.R. 164; 24 S.C.R. 
 291 ; Tooke V. Bergeron (1897), 27 S.C.R. 1567; it must be established that 
 the jilaintifV had of necessity (rea.sonal)le and practical necessity) to pa.ss over 
 a dangerous way ; British Columbia Mills Co. v. 8cott (1894), 24 S.C.R. 702. 
 
 Works. The works need not be tlie employer's. Land or premises upon 
 which he takes his workmen, and over which he has control are within the 
 Act : Brannigan v. Robin.son (1892), 1 Q.B. 344. 
 
 Machinery. .Machinery includes every nuschanical device oi' combination of 
 mechanical powers and devices to ])crforni some function and produce a (iertain 
 etlect or result. Corning v. Burden (18,-)3), 15 How. (U.S.) 252. The machin- 
 ery nnist be in proi)cr condition foi- the purpose to which it is applied ; Hoske 
 V. San\uelson (18S3), 12 Q.B.I). 30. 
 
WORKMEN S COMPENSATION FOK INJURIES. 
 
 149 
 
 Plant. I'lant includes l)()tli animate anil inanimate' cliattcls. Whatever 
 apiiai'atu.s is used by a husiness man for eairying on his Imsine.ss ni)l iiis 
 stuck m-tiadi,' whieh he huy.s or makes for sale — hnt all goods and chattels 
 fixed anrl movealile. live or dead whieh he kee])s for |)erinaneiit emjiloynient in 
 his Imsiiiess ; ^'aiinoiith v. Frano(i (I8HH), 19 (>>. H. I). t)47. A snij) carrying 
 coals for a coal inoreliant is plant ; Carter v. Clarke (ISilH). 14 T.L.H.'lT'i. 
 The plant need not however belong to tli'3 employer ; Hacon v. Dawes (IS,H7), 
 3 T. L. R. .V>7, hut a ladder borrowed l)y the plaintitt' witliout authority is not 
 plant, for the condition of whieh th(^ employer is responsilile ; Perry v. lira.ss 
 (IS80), .')'r.L.R. 2.")2. An unauthorized ap])licatioii of the ])lant to pinposes 
 not intended will not make the employer liable; Jones v. Hurford (ISSIl), I 
 T.L.R. 137. 
 
 A mere shell of a liou.se could not be said to be builder's |)lant ; (.'onwav v. 
 Clemcnce ( 18,S,-)), •_' '1'. L. R. H(l. 
 
 Connected with Business of Employer. The ways, works, machinery, plant, 
 lanldings or iiremises alleged to be defective must be comieeted with, intended 
 for, or used in the business of the employe)', or m the furtherence of the 
 employer's interests; C'ollip v. l'hilli))s (IHHtJ) SI L. T. Jimrnal 7. The 
 Kngli.sh Act does not contain the words "buildings or iiremises" or the 
 words " intended for." In Howe v. Finch (I88()) l7 <»». R. D. 187, it was 
 held that the Knglish Act did not extend to woiks in course of erection, 
 which upon com|)lction were to be >ised in the emi)loyer"s business. A 
 p\iblic street is not coiuiccted with the business of the employer within the 
 meaning of the section so as to make him responsible for it as a defective 
 way; Stride v. Diamonddlass Co. (I8S).")) -20 (). R. 27(t. 
 
 Defect must cause the Injury. The evidence me.st show that the injury was 
 <auscd liy the defect. Wiicre the evidence does not show how llu^ a<'cident 
 happened, but its cause is purely matter of specidation or <:onjecture, there 
 can be no recovery ; Ba<lgerow v. (iiiin<l Tnndv Railway Co. (18!)(() I!) O. R. 
 1!»1 : Farmer v. (irand Trunk Railway Co. (I8ill) 21 ('). R. 'J!)!); .Montreal 
 Rolling Mills Co. v. Corcoran (ISiKi) -it) S. C. R. o!),") ; Canada Paint Co. v. 
 Trainor (18!I8) 28 S. C. R. .'},")L>. If tin- injury is the result of a jmrc acciiU'iit 
 there can ho no recovery ; Rurland v. Lee'(|H!»8) -28 S. C. R. 348, an<l ii the 
 facts arc as (Hinsi.stent with reasonable carc^ as with lU'gligence the |)laintifr 
 nni.st fail : liilbert v. Xorth London Rv. Co. (1883) 1 C. *' K. 31 ; Rruinu'll v. 
 Canadian Pacific Ry. Co. (18«8) l.l (). R. 37.-|. 
 
 Where a maehino i.s the one generally in use or has been furnished by a 
 com))etent contractor or works, e. g. scatl'olding is ei-ected by comjietent work- 
 men, and no defect is ai)parent or coidd it'asonai)ly have l)een delected the 
 master is not liable; (Jiaxton v. Mowleni (18SS)4T. L. R. 7")<) ; Kichlle v. 
 Lovett (188,-)) Hi (,). H. I). ()(C. ; Black v. Ontario Wheel Co. (IH'.Ht) 1!M). R. 
 .■)7S; Moore v. (limson (188!)) ,-)8 L. .1. <,). 15. Kiit. .V master is not eomiielled 
 to discard an old machine to make loom for a ii"w invention ; Race v. 
 Harri.soii (1802) !» T. L. K. .-.(i7, 10 T. L. R. 02; (iill v. Thoriieycroft (I8!I3) 
 l(( T. L. R. 31(i ; but if the niaciiine is found to be defective, and the em])loyer 
 with fidl knowledge continues its use he will be liable; Ross v. Cross ( 18!M)) 
 17 A. R. 2!t. Tlie jiarticular act of negligence alleged must be proved ; 
 Cowan.s v. Mar.shall (18!)7) 28 S. C. R. KM. 
 
 Orders to which he is bound to Conform. The orders may be im))lied from 
 the usual cause of l>usiness ; Milward v. .Midland Ry. Co. ( ISS.^i) 14 <>). I>. I >. 
 t)8. 111' from general pri.)r orders; Cox v. Hamilton Sewer Pipe Co. (1887) 14 
 O. R. 300. The plaintili nnist be lioiiiii/ to obey t he order : Ruidier v. .Mid- 
 land Ry. Co. (18S3) 47 L. T. 47(i ; McMainis v. Hay (1882) !» Rettie 42.-» ; and 
 the .s<!0])e of the authority of the person giving it will be en(|uired into ; 
 Snowden v. Haynes (18!IO)2r) (). R. I). I<t3. lmproi)er instiiu lions as to the 
 mode of |)erforming his duty, given him l)y a |)arty to whose orders he was 
 bouiul to conform, will be suftieient to give the workman a remedy against thi^ 
 master; Madden v. Hamilton Iron Forging Co. (188!)) ISO. R. ."u. 'I'he order 
 need not be negligent in itself, nor the ckh.vk (■((»«(»•< of the injury, but if 
 the servant giving the onler is negligent, an<l liis negligence is closely con- 
 iK'cted with the order given .so that while <()nforming to th(! order, the 
 j)laintill' is injured in conseiiuence of that negligence, the master is responsible; 
 Wild V, Waygood ( I8!)2) I Q. H, 783. so that if a servant liaving authority gives 
 nil order and negligently fails to take reasonable precautions for tlii^ safe 
 conformity thereto the employer i.s liable ; .Sweeney v. M'dilvray (1880) 24 Sc. 
 L. R. 91. 
 
 r - 
 
 CO 
 
150 
 
 workmen's compensation for injuries. 
 
 All Older to go on ill an unusual manner, with one workman instead of 
 two is a negligent order ; Bailier v. Burt (1893) 10 T. L. R. 383. 
 
 The negligence of a jier.son wlio.se orders the plaintiff was not hound to ohey 
 will not entitle liiin to recover; Howard v. Bennett (1893) 58 L. J., B. Q. 129, 
 even tlumgli he is older in the servico ; Garland v. Toronto (1896) 23 A. R. 
 238. 
 
 Where the instructions hy the engineer in charge were not to work unices a 
 look-out was kejit, and the foreman or<leied men to coniiiience work when no 
 look out was kept, and a workman was killed hy a train, it was hehl tliat 
 the order was one to wiiich lie was not houiiil to conform ; Hooper v. Holme 
 (18il(i) 12 T. L. K. .")37 ; 13 T. L. R. (i, l)ut where there was a notice tliat 
 machiiu'iy should not he cleaned while in motion and the jury found that the 
 workman was hound to oliey an order to clean it while in motion, the master 
 was found liable : Marley v. Oshorne (1S!»3) 10 T. L. R. 388. 
 
 Acts or Ommipslons in Pursuance of By-Laws. The Ontario Acts differs from 
 the Kriglish liv nicludiiig acts or onimi.^sioiis done or made in ohedieiiee to 
 particular instructions given hy " tlie employer " as well as l)y his delegates. 
 If the working of a rule or hy-law causes injury ]irlma fwii- it is improper, 
 unless approved as mentioned in sec. 6 (2). A servant assisting 
 in feeding a saw and wii()S(; duty also was to attend to and not to 
 iieglict the engine, licaring steam l)lowing off suddenly an<l witlioiit notice 
 left the saw ; tlie wood liccan.e unsteady and the plaintill' who was taking it 
 from the saw at the other end was injured. Tlie C.'ourt fi .d tha>, tlic 
 injury was not within si'c. 3 (4) : Wiiatley v. Molloway (1890) 02 L. T. 039. 
 
 Instructions by Persons Delegated with Employer's Authority. These words 
 refer to a nianagci- or iiersoii in the jiosition of a manager and not toa feIlo\\ 
 servant wlio gives notice to do an act, e. g. "lower awa\' " ; Chixton v. 
 Mo. .em (ISSS) 4 T. L. H. 7")(). 
 
 Charge or control of trains, &c. The Legislature hy .sec. 3 (.">) has, with regard 
 to locomotives and trains, taken away from the employer the defence of com- 
 mon ctii])lovment. \'>y this subsection the Legislature meant in a very wi<le 
 way to jirotect workmen wlio are engaged in .such dangerous eniphniucnts, 
 and they .said as an exception to the ordinary rule of law, that if tiie person in 
 charge of a locomotive or of a train shall lie guilty of negligence, tlien (piite 
 apart from any (piestion of superiority of employment and (piite apart from the 
 necessity of suiierintendence tlie employer may be lialile ; McCord v. Camiucll 
 (1890). A V,. 07, 03. Tlie words " machine" and " tramway or street railway" 
 are not in the Knglish Act. The omission to ring tlie bell or going faster in 
 station grounds tliaii the law allows will make the em|)loyer liable under this 
 section ; Canada Southern Railway Co. v. .lackson (1890), 17 S.C. R. 310. 
 
 The section applies to temporary railways; Doughty v. Firliank (1883), 1(1 
 Q. B. 1 ). 3.")8. A steam crane lixed on a trolley and propelled by steam when 
 it was desired to move it is not a locomotive or engine ; Murphy v. Wilson 
 (1883), 52 L.J.(^).li. 524 ; l)ut where cars on a railway were moved for the |iiir- 
 pose of unloading l)v a capstan set in motion by hydraulic power communicated 
 to it from a stationary engine, the jierson having charge of the engine was held 
 to be in charge of a train U])oii a railway ; Cox v. (Jreat Western Ry. Co. 
 (1882), 9 <^>.l!. 1). KM). A hicomotive engine liy itself or anything that is being 
 drawn aliing a railw.-iy or is in (uairse of lieing drawn upon a railway by that 
 locomotive engine is included in a " train," see Casey v. Canadian I'acilie Ry. 
 Co. (1888), 15 O.R. .574; McCord v. (knimell (189ti), AX). 57. The person 
 having charge or control is not laues.sarily a person in charge of the whole train. 
 Different duties may be assigncil to ditl'erent (ler.sons, each of whom is charged 
 with the (conduct of the train, and by liis negligence may make the employer 
 liable. An employer may therefore lie liable for the iiegligeiuie of a fireman 
 in charge of cars disconnected from the engine ; McCord v. Cammell (189(i), A. 
 C .57. A person in charge of the " points" means one who has general charge 
 and not one wlio has luerely charge of them at some particular moment. There- 
 fore a servant whose duties were to dean and oil the locking bars and apjiaratus 
 is not one in charge of the jioints ; (iibbs v. (ireat Western Ry. Co. (1884), 12 
 (i>.15. 1). 2(18. If the negligence is that of the person injured he cannot recover; 
 BrunucU v. Canadian Pacific Ry. Co. (1888), 15 O.R. 375 ; Truman v. Rudolph 
 (1895). 22 A. R. 2.50. 
 
 Negligence of person entrusted with duty. These words include iiersons who 
 may not be managers or foremen. Wiicre there was evidence that it was the 
 duty of a sawyer to see that a saw was kept guarded, and the guard was off, 
 
WORKMEN S COMPENSATION FOR INJURIES. 
 
 161 
 
 but not in the ordinary course of orcasional necessity ; it was lieltl timt there 
 was sufficient evidence to go to the jur^', that the sawyer was the person entrus- 
 ted with the duty of seeing that the machinery was in proper condition ; Tate 
 V. Lathan (1897), 1 Q. B. .')0'2. 
 
 Factories Act. Tlie omission to piovide and nuiintain safety apphaiu-es 
 required l)y tlic Factories Act may l)e evidence of negligence so as to entitle a 
 wori<man to comiiensation ; Dean v. Ontario Cotton Mills (,'o. (1SS7), 14 O.K. 
 nil ; Tiionipson v. Wriglit (IHitiJ), -J-i O. H. 127 ; Hamilton v. (;roesl.eci< (1801), 
 18 A. R. 4:i7; O'Coinicr v. Hamilton Hridge ("o. (I8!U), •_'.■> O.K. l-_> : >] A.K. 
 5iMi : 24 S.L'.R. ,-.!l8 ; Kndgcis v. Hamilton (."otton Co. (18!»S), 2.'1 O.K. 42.'); 
 Hritton v. (iieat Western Cotton Co. ;1872), L. K. 7 Kx. i'M : Kellv v. (;lel)e 
 .Sugar Co. (18!t.S), 20 Rettic 8;W ; Kinlay v. Miscam])l.ell (1S!)()), 2(M).K. 2i» : 
 Groves v. \Viud)orne (1898), 2 (^15. 4(12, and so may a l)rcacli of tlie Act liy 
 enipioving voung |)ersons in contravention thereof ; O'Brien v. Sandfoi-d (1892), 
 22(».R. !;{(). 
 
 iiefcncc of nilciil 
 
 is Ciiu.sci 
 
 TTTQ.!',.!). 42;i ; liodgei> 
 
 noil fif ill JKfiii is not ap))lica(;a hlc wIumc tiie acciden t 
 - ■ • - ul ( iranville 
 
 reach ot a S I ;ini|(H ' V <HIU ! H i l l lHuU ' V. Kail ( .r anville (1887), 
 
 V. TT um l ll'i^li Crrt ton Co. ■(I89:{), 2;{ O.K. 42.n, nor is 
 
 f connnon employment; (iioves v. W'imhoine ( 1898), 2 (,). 15. 1). 
 
 Montreal 
 
 tiie dcfcnc 
 
 492. The Quebec Factories Ai't impo.ses no sueli responsibility 
 
 Rolling Mills Co. v. Corcoran (I89(!), 26 K.C.R. .505. 
 
 Liability 01' person for whom work Is done. S. 4 is not in the Knglish Act. 
 Under it an owner may be respon!,ililc to a workman of a contiactororsub-c^on- 
 tractor. Tiie se<,tion is not discussed in tiic judgments in Smitli v. Onderdoidi 
 (1898), 2.") A.R. 171, where a head contractor was hclil to lie not liable at com- 
 mon law for a defectiv(^ engine su|jplied to a sub-contractoi\ Tlie Court, how- 
 evei', .said tliat even if tiie defendant was negligent the accident was not caused 
 by liis negb'et. Tlie action was originally lirought under the Worknieirs Coni- 
 pen.sation Act, and it was held at tiie trial that tlu; head contractor was not a 
 person for whom the work was done so as to be an ' eniphj^er ' witiiin the Act. 
 
 Volenti Non Fit Injuria. There can lie no actionable negligence without the 
 breach of siuiie duty owing to the plaiiitill'. If, therefore, the plaintitl' with 
 full knowledge and iipiireciation of tiic risk from wliicii tlu' injury has arisen, 
 has agreed to accept it, there is no breach of duty, and no liability unless there 
 was some statutory duty to remedy it. Tiic risk may exist at the time of 
 entering into the employment. If the risk was then nianlFcst to tlii' servant 
 it forms one of the t(>rnis of the eni]ilovmeiit whether the servant actiudlv 
 knew it or not : Yarmoutii v. France (1889) 19 g. B. I). ()47, (i-'):!. If the eni- 
 ployment becomes dangenais after the .servant enters it there then arises the 
 (lucstion whether the servant has agreed to accept the risk of the increased 
 danger. The mere fact of his conliiiuing at iiis work with knowledge and 
 appreciation of tiie risk will not ne<'essarily imply his acceptance. Whether it 
 will have tliat ctlect or not depends to a considerable extent ujion the nature 
 of tlu^ risk, and the workman's connection witli it, as well as upon other eon- 
 .sideratioiis, which must vary according to the circumstances of each case ; 
 Smith v. Baker (1891) A.C.,'.S2."i. ."iKi. 'i'lie (|uesti()ii whether the servant has 
 acce])ted the risk or not is one of fact and if there is a contest of fact must be 
 suliniittcd to the jurv ; Variiiouth v. France (1887) 19 h>. B. I). (i47 ; Thrus.sell 
 v. Handvside (I888)"20 Q.B.I). :i.-)9 ; Smith v. Baker (1891) A. C. :;2.'), ;i.')7, :i(JO : 
 Osborne '\'. Limdon and Noith Western Ry. Co. (1888) 21 Q.B.I).. 220. 
 
 But where the lilaiiitiff, a man of full intelligence, liad seen the dangei', 
 known all aliout it and elected to continue working, it was iield tliat liis know- 
 ledge could mean only one thing, and that lie was rol< iii ; Thomas v. (^uarter- 
 maiue(1887) I8(^).B.1). ()8>'>, and w here a workman was employed in a dark 
 railway tunnel where trains were constantly passing lie was considered to have 
 elected to take the risk of danger ; Woodley v. Metropolitan Ry. ('o. (1877) 2 
 Ex. 1). .'1,84 and a workman engaged in shunting trucks was held to have 
 acce])ted the risk of shunting without assistance, the danger to him being 
 caused by his own act ; Mciiilirv \'. Creat Western Railway Co. (.18,89) 14 App. 
 Cas. 179"; Church v. Aiiiileby (1888)00 L.T. .■')42, and a farm .servant cniphiycd 
 on a iiiacliiiic upon which was a string which applied a laake automatically, 
 takes tlic I isk of the string lircakiiig. and of there not being another person 
 employed to ap]il\' the brake, and iirevcnl danger in sucli event ; I'oll v. 
 Hewitt (I89:i) 2.'M).R. 019. Where the workman knew of t'.ie defect in a 
 waggon, but knew how to use, and might havi' used it, without injury he wan 
 not entitled to recover ; Martin v. Counairs <^>uay Alkali Co. (188',")) :'W W. R. 
 
 
 r - 
 
 IP 
 
w 
 
 152 
 
 wokkmen's compensation fou injuries. 
 
 ii 
 
 •JKi. Mere knowledge of the risk and coiitimiing in tlir eniployriienl luitwitli- 
 stiiiiding, will not lie Hulficient to constitntc^ tlie Hcrvant roliiix. The eonelud- 
 ing cliiUNc of s. (i onlv states tlii' coinnion law as it was H\il)He((ii('ntly laiil down 
 in Sinitii v. ISaker (IS!)!) A.C. '.^^2'>. There may have been a perception of the 
 existence of the danger without i-oin|)rehension of tlu; risk; ISi-ooke v. Kaiii.s- 
 den (1S!»I) (iH L.T. 2S7 ; Tohin v. Xew (ilasgow Iron Co. {1S!)4) •>'.) X. S. R. 70 
 allirined liy Supreme (Joint of Canada, an(l then; may iiave hecii conciUTOMt 
 facts whi<h justify the iii(|uiiy whether tiie risk tliougli know ii. was really 
 encomitereil voluntarily ; Tliomas v. (i>uarlermaine (IHST) H (,>.l).l). (>!H). 
 The servant mav liave heeii induced to continue undeL- a i)romis(^ tliat the 
 .lefeet wouhl lie'renicdied ; (Hark v. Holmes ( lH(i2) 7 H. it X. '.I:i7. 1I4-4. There 
 mav have lieen fear of dismissal latlu^r than voluntaiv action; Narnionlh v. 
 France (l,S,S7) lit <,>. 15. D. ()t7, ()(>! : Thrussell v. Handyside (IHHH) -J!) (,l. H. I). 
 .Till. 3(14. Want of ai)|ireciation of ilanger will jirevent the apjilication of tho 
 maxim; .Amos v. Dully ( IS!I(I| (» T. I...U. .'W!', e\en where the scivant knew of 
 the defect when he entered the ein])lovment ; Minglit v. Wortman MHilf* 20 
 O.K. tiliS. A risk not incidental to llie servic^e as from a savage dog ke|)l hy 
 the master is no di^feneo ; Manstield v. Baddeley ( 1870) 34 L.T. ()!M>. 
 
 Prima fttrie tho workman accepts only lisks ordinarily incident to the oper- 
 ation wlien |)erfornied with reasonalile eare and skill, therefore a workman who 
 accepted the risks of shunting is entitled to recover for negligent slumting ; 
 Canada Atlantic l{y. Co. v. Hurdnian (IS!).")) -io S.C.R. -H)-!. 
 
 Failure to notify master of defect. Tlie words " without reasonable excu.sc " 
 arc not in the Knglisii .\ct. Tlie Ontario .\ct conteni))lates that there may he 
 some otlii:r excuse for the omission than the knowledge that the master is 
 already aware of the def(Ml, and tiiis is a ([uestion for the jnry ; Trinnan v. 
 Rudolph (18!).")), 'i'i A.M. "i.")!). Where the em]>loyer's superinteni'.ent is known 
 liy the workman to b(" aware of the defect he is excused from giving informa- 
 tion thereof ; Stiuut v. Kvans (1883), 4!) L.T. 138. The rcfnsal of the master 
 upon complaint to reniedv the ilefect will not free him from liability ; Brooke 
 V. Ram.sden (KSiM), 03 \j\\ •_'87. 
 
 Amount of compensation. Overtime earnings may be taken into account; 
 Hortick V. Head (I8S.">), .")3 L.T. Oil!). So may all things capable of being 
 turned into nu)ney by accurate estnnation, as rent, food and ilothes, but not so 
 vague a tiling as tlie tuition an apprentice receives from his master ; Xoel v. 
 Redruth Foundry Co. (1800), 1 (}.H. 403. The rights of representatives of 
 deceased workmen are not more extensive tiian the rights of re))resentatives of 
 othtir |)ersoiis, .so that in ease of death there mnst be a reasonable exjiectation 
 of ))ecuniaiy liciietit ; Mason v. Bertram (18,89), 18 0. R. 1. 
 
 Distriljution of compensation. 8ec. 8 has no Knglish eciuiva.lent beyond Lord 
 Cam))beirs Act. Wiiere the workman die* the measure of damages to his 
 representatives is ditrcrent from tiiose recoverable by himself; J'vm v. Oiuiiit 
 Xorthern Ry. Co. (18(i2), •> B. & S. 7.'.0 ; 4 B. * S. 30(i ; and t 'would .seem 
 that an indei)eiidant cause of action vests in the legal re))re.seiitatives .so that 
 they (touM not continue except, ))erhaps, for damage accruing to the deiieased'a 
 estate in his lifetime, an a<.'tioii commenced bv the ilecteased hini.self ; see 
 White v. Barker (18S0), 10 S.C.R. 000; Bradsluiw v. Lancasliire and Vork- 
 .shire Ry. C<i. 187.")), L.R. 10, C. I>. 1,80. 
 
 There is no limit to the <laiiiagcs which may be given under Lord Cainpbell'.s 
 .Act. ^Vhel•e, however, the workman would have had no remedy at conniion 
 law, and tli(> lialiility of the emiiloyc^r aiises only under the AVorkiiien's Coin- 
 pen.sation .Vet, the iimount of compensation in ea.se of death is limited by s. 7. 
 
 Limitation. The day of the accident must be excluded ; Haniis v. Johnston 
 (1883), .'{ O. R. 10(1. Where death occurs and actions agaiiiSt the employei-are 
 regulated by a special statute of limitations, it would seem to be donlitful 
 whether the action must not be broiiglit within the time limited bv tlie special 
 statute; Conger v. (band Trunk Rv. (Jo. (1887), 13 O.R. 100 '; Ziiiimcr v. 
 (Jraiid Trunk Ry. (Jo. (l80-_'), 10 A. R. (i!.3. Where a notice hail been given 
 mider the Employer's Liability Act but the action was brought on the common 
 law liability, an amendment after the six months could not be granted ; (Jlark 
 V. Adams (1885), 1-2 Rettie 1002. 
 
 Contracting out. Sec. 10 is not in the Fnglisb Act, and the workman, may, 
 in Kngland, liy eontract, upmi any consideration, bar himself and his repre- 
 sentatives of any remedy under 'the Act ; (iriOiths v. Karl Dudley ( 1882), 9 
 (^. B. D. 3.')7. The question whether the consideration for the eontract is ample 
 
WORKMEN'S COMPENSATION FOR INJUItlKS. 
 
 153 
 
 iind a<lequate, and the contract just and reasonable and not improvident is for 
 the Coiirt and not for the jiiry. An agreement in consideration of advantages 
 under an accident fund would prolialily l)e sufficient ; ('U-ineiits v. London and 
 Xortii Western Ky. Co. (1804), 2 l).]i. 4H2 ; while an agreenu'ut in considera 
 lion of free transportation to and from work would not ; Flowei- v. London 
 and Xortli Western Ry. Co (IH!»4), 2Q.B. (i">. 
 
 Notice of action. Suh-secti^ns 1 to 4 are identical with s. 7 (1-4) of the 
 English Act. Sul)-.sec. ."> is materially dillerent from the cot responding snli- 
 seetion in llie l'"iiglish Act, unil suli-.sec. (i has no English e(|uivalent. The 
 notice must l)e in writing; .Moyle v. .Icnkins (1881), H t^).15.l). IKi; hut may 
 he collected from a series ol letters ; Cox. v. Hamilton Sewei' l'ii)e (.'o. (1887), 
 14 O.R. .S(M). Tlie notice is sup|)(jsi'<| to ha given hy a person iji a Innnhle 
 spiiere of life and not pos:ies.sed of mucli knowledge, and is to he written in 
 ordinary language, i.e., his own initutored language. ,\ letter from a solicitor 
 therefoic whicli stated tlie causi' of injury as "an injury to his leg" was held 
 to he defective only, not iusntlicieiit. Stone v. Hyde (188-2), !) (,>.15.I). Hi. 
 The notice is not i'e((uired to state the lause of action, l>ut only the cause of 
 injury, e.g., an unprotected hoist ; Clarkson v. .Musgrave (1882), 9Q. H. I). IlSti. 
 
 .\ notiite wronglv addressed hut receive<l bv the right partv is good ; Hearn 
 V. I'hillips(l88;<), 1 T.L.R. 47.'). 
 
 A s\itticient notice will include all particidars, and should not incorijorate a 
 conver.sation as " jjarticulars of which have alreadv heen (tonnnunicated to vour 
 superintenilent :' Keen v. .Millwall Dock Co. (1882), 8 (,>.H.l). 482. The want 
 of notice or the omission of the address of the i)lainti(t'; Beckett v. Manchester 
 Corporation (1888), .Vi .1.1'. :W(), oi' the date of the injufv ; ( ,.rter v. Divsdale 
 (1884), 12(,J.B.I). !tl, or the cause of the injury ; I'revisi v. (iatti (1888), oS 
 L.T. 7t)2, will not l)e fatal if the Court (not tiie jury) is of opir.ion that there 
 was reasonable excu.se therefor, and that the defendant was not thereby pre- 
 judiced in his defence. The notice need not be signed ; Ma.son v. Bertram 
 (1889), 18 O.R. 1. 
 
 If the defendant intends to rely upon tlie want or insufficiency of the notice, 
 he must give the notice recpiired bv s. 14. Meielv ])lea<ling want of notice is 
 insufficient ; Cavanagh v. I'ark ( I8!t(i), 2:! A. R. 71o ; Conroy v. I'eactock (18!»7), 
 2 (,). B. (). 
 
 Assessors. Assessor.^ are to givt^ their opinion as to the amount of compen- 
 .sation, from asi^crtaiued or admitted facts, and are not to <lecide ujioii conflict- 
 ing evidence ; Wright v. Collier (1892), 19 A.R. 298. 
 
 W 
 
 r- 
 
 c 5 
 
 *^ 
 
 - 1 
 
Interpre- 
 tation. 
 
 ' Parent. ' 
 "Child." 
 
 CHAPTER 166. 
 
 An Act respecting Compensation to the Families of 
 Persons killed by Accident, and in Duels. 
 
 HER MAJESTY by and with the advice and consent of the 
 Legi.slative As.sembly of the Province of Ontario, enacts 
 as follows : — 
 
 I. Where the words following occur in this Act, they shall 
 be construed in the manner hereinafter mentioned, unless a 
 contrary intention appears : 
 
 1. "Parent" shall include father, mo ther, grandfather, 
 grandmother, stepfather and stepmother ; and 
 
 2. " Child " shall include son, daughter, grandson, grand - 
 dau ghter, .stepson and stepdaughter. R. S. 0. 1887. c. 135. s. 1 . 
 
 Action Riven !J. Where the death of a person has been caused by such 
 damage for the Wrongful act, ne trlect or defaul t, as would (if death had not 
 death of any ensucd) have entitled the party injured to maintain an action 
 KTny wrong- ^'^"^ recover damages in respect thereof, in such case the person 
 ful act, ne- who would have been liable if death had not ensued, shall be 
 liable to an action for damages, notwithstanding the death of 
 the person injured, and although the death has been caused 
 under such circumstances as amount in law to felony. R. S. O. 
 1887, c. 135, s. 2. 
 
 tlect, or 
 lefault. 
 
 For whose 
 benefit and in 
 who.se name 
 8ucli action 
 shall be 
 bronght. 
 
 Damages. 
 
 3. Every such action shall be for the benefit of the wife . 
 husband, parent and child, of the person who.se death has been 
 so caused, and shall be brought by and in the name of the exec u- 
 tor or administrator of the person deceas3d, and in every such 
 action the Judge or j ury may give such damages as he or they 
 think proportioned to the i njur y resulting from such death to 
 the parties respectivel y for wTiom and for whose benefit such 
 action has been brought ; and the amount so recovered, after 
 deducting the costs not recovered from the defendant, shall 
 be divided amongst the before mentioned parties in such 
 shares as the Judge or jury find and direct. R. S. 0. 1887, 
 c. 135, s. 3. 
 
 Money paid 4. In case the defendant is advised to pay money into 
 be paid [none Court, it shall be sufficient if he pay it as a compensa- 
 sum without tion in one sum to all persons entitled under this Act for 
 dTms^ion^nto ^^^^ wrongful act, neglect or default, without speci.^'ying the 
 shares. shares into which it is to be divided by the Judge or jury ; and 
 
 [154] 
 
Chap. 166. ACCIDENTS AND DUELS — COMPENSATION. SeC. 4. 
 
 ]56 
 
 if the said sum be not accepted, and an issue is taken by the 
 plaintiff as to its sufficiency, and the Judge or jury shall think 
 the same sufficient, the defendant shall be entitled to the 
 verdict upon that issue. R. S. O. 1887, c. 135, s. 8. 
 
 5. Where the death of a person has been caused by any Afj'"" '^*'' 
 wound or injury received in a duel, which wound or injury has against prin- 
 been inflicted by the use of any description of fire-arms or other cipals, seconds 
 
 J ji *^ 1 , • -L J.I. • II i.' and abettors 
 
 deadly weapon whatsoever, in such case the person innictLn g i„ duels. 
 such wound or injury, and all persons present aidintr m- nhp t- 
 ting_th£ parties in such du el as seconds or assistants therei n, 
 may beprocegt fcd against under this Act , although no action 
 for aamages could have been brought by the person whose death 
 was so caused had death not ensued from the infliction of such 
 wound or injury. R S. O. 1887, c. 135, s. 4. 
 
 6. Not more than one action s hall lie for and in respect of ^"j" action 
 the same subject matter of complaint ; and every HlKih action the^same*' 
 shall be commenced within twelve months after the death of "ause. 
 the deceased person. R. S. O. 1887, c. 135, s. 5. Limitation. 
 
 1. In every such action the plaintiff shall, in his statemen t j?'?.'"*'*^ *" 
 of f-liiim, .Kftf fni'th or deliver therewith full particulars of th e ticulara.'*' 
 persons for whom^'&.nd on whose behalf such action is brougj i j; . 
 R. S. 0. 1887, c. ISS, s. 6. 
 
 Where no 
 iction 
 
 brought with- 
 in six months 
 by executors 
 of person kill- 
 ed, then action 
 may be 
 brought by 
 persons bene- 
 
 8. If, and so often as it shall happen at any time or 
 times hereafter in any of the cases intended and provided 
 for by this Act, that there shall be no executor or adminis- 
 trator of the person so deceased, or that there being such 
 executor or administrator, no such action as in this Act 
 mentioned, shall, within six months after the death of such 
 
 deceased person, have been brought by and in the name^^. 
 
 of his or her executor or administrator, then and in everyr^i'^jy "''®'' 
 such case, such action may be brought by and in the 
 name or names of all or any of the persons (if more than 
 one) for whose benefit such action would have been, if it had 
 been brought by and in the name of such executor or adminis- 
 trator ; and every action so to be brought, shall be for the 
 benefit of the same person or persons, and shall be .subject to 
 the same regulations and procedure, as nearly as may be, as if 
 it were brought by and in the name of such executor or 
 administrator. R. S. O. 1887, c. 135, s. 7. 
 
 :? 
 
 ^ 
 
 i>. In all cases where the compensation is not apportioned as Apportion- 
 hei'uinbefore provided, it shall be referred to a Judge to ™ent. 
 apportion the same among the parties entitled and to provide 
 for the costs thereof as he may think meet. R. S. 0. 1887, 
 c. 135, s. 9. 
 
1S6 
 
 LORD CAMPBELLS ACT. 
 
 NOTES. 
 
 aw 111) action f or <laiiiiiut'n '.luixcil liy 
 TTSTiJ^i v.'«lTllftt (I«73) L K., H I'A. 
 
 la 
 
 Death by WronglXil Act At i lu i iiiu m 
 tlif clcatli of a inrso ri was iiiaiiilaiiiMl)l e 
 
 SR: Till' Htatiitr (H. S. f). ,•. \m) is T'lsed u))()n Lonl ( 'aiiipUi'll's A(^t (!KV 10 
 V. c. !(.'{) aiiiciHicc! \)\ 27 & '2H V. c. !>."), ami the scctiims of tlie Oiitaiin .\ot 
 ('xce|it Hfctioiis ,">an<l Itari'sulistaiitiiitly iilciitiial with tin- Kiiglisli enact iiii'iits. 
 Sections ."> and it liav ■ no e(|uivalcnts in the Kngliah Aits. The original act 
 has a pieainhle as follows "Whereas no action at law is now niaintaii'al)le 
 against a person who hy his wrongful act, neglect or default may have eauseil 
 the death of anotlua' person, and it is often times right and expedient that 
 the wiongdoer in such eases .should he answerahlo in damages for the injury 
 HO caused liv him. 
 
 Persons entitled to Damages. A child in rr.nhr m men' is entitled to he 
 considered in ap]>orl inning the damages. The (Jeorge and l{iclia>d (1871) L. 
 H. 'A .\. k E. 4li(i. H ut pa rents of an illegitimate child cann ot maintain an 
 : (Jll)son V. Midlanil Uv. <'(.. (IHHUi 1 <>. \{. II.Sh, see ('larko 
 
 4ll(i. 
 action for his dcat 
 
 v". farhn l.oal ('o.~jlH!)l) A. C. 412. nor can a hastai'd foi' tliedeath of a parent ; 
 Dickinson v. North Eastern Ry. Co. (1H(W) 2 U.'A. ('. '7.T). An alien resident 
 ahroad is not (uititled to tlie henetit of the Act. 
 Steamship I'o. (ISilS) 2 (,».H. 4.S(). 
 
 Whether a New Cause of Action, ' i'he act g ives 
 does not merely remove 
 
 Adam v. Uritish and Foreign 
 
 the operation ot the maxn 
 
 - M l Mlanfl Ry. t ' o. ( i M-.-IF 
 
 new 
 
 iui.se of acti on, an d 
 111(11 ilur 
 
 ■■<miii/i'i 
 
 j IK )•■• 
 
 IH 0- »• !»•■< "•' ; I'yni V. 
 ; The Vera Cm; (IHH.-.) 10 
 
 (■»»! y)/<y.i6ild ; UhiKP-r: 
 
 tireat NoriTiern Hv. Co. (I8ti.'l) 4 B. & S. .•«»(!, 4»Ki 
 App. Cas. .")<»; White v. Parker (1889) Hi S. (1 K. «}>!»; Zimnier v. Orand 
 Trunk Ky. Co. ('8<t2) Ml A. U. OILS. The action is new^in its .species, new in 
 its ipiality, new in its jjiinciple, in eveiy way new and can only he hrorght if 
 there is any person answering the description of the widow, ])arent oi- child 
 who under such circumstanees suffer, pecuniary lo.ss l)y death ; ]ier Lord 
 Blackhnrn, 10 App. Cas. 70, 71. Hut the action is neverthele.ss a represent- 
 ative one ; Rol>iii,son v. Canadian I'acitie Ry. Co. (1892) A. C. 481, 487, and 
 the parties to it claim through the deceased so that his evidence given in an 
 action hronght hv him in his lifetime, hut which aliated on his death is admiss- 
 ilile ; Walkerton" v. Kidman (1894) 2.S S. C. R. .352 see 22 O. R. ()9.S, 20 A. R. 
 444 ; See however. Read v. (ireat Eastern Ry. Co. (18(»8) L. R. .S i). K .");"> ; 
 where Hlackhurn .1. said " This section may provide a new principle as to the 
 assessment of damages, Imt it does not give any new right of action."' 
 
 The death must have heen cau.sed hv .such wrongful ac t, 
 
 ne plect or default as wouli 'l (if death liact not ensued) Imve entitled thclmrly 
 
 ^ ^ iM:t'o" lity] reco ver damages iii~n'spei't thereo t'. ^itie 
 
 Defences to Action. 
 
 )r default as 
 to inaiiitaiii 
 
 authorities estahlish that the representative can have no right of a(;t'ioii ; lirst 
 where the act or default (Minip laiii ed ot laised no iiahili^y to t'le ''cce.i.ueil n^ 
 eoninion law, or l)y reason ot his having co' itiactcd to hear the risk 
 sgCOn dly, WhUI't) llm dU COilBlid has hee n coiiipeu.sated or .1 
 
 c TiargciT his claim ; Rohiiison v. Canadian Pacific Rv. Co. (1892) A. C. 481. 
 48(5,487 ; Haight v. Royal Mail Steam Packer Co. (1883) .")2 L..T.(M{.(140. 'Oms 
 
 contrihutory negligence is a defenc e: Tucker v. Chajilin (1848) 2 C.&K. 7.30; Sen- 
 iorv. War(l(18r)9) 1 K.k E.:<8.-); Coyle v.tJreat Northern Ry. Co. (1887) 20 L.R. 
 Ir. 409; Wright v. Midland Ry.Co."")! L.T. iVffl. and so is accord and .satisfiiction : 
 Read v. (ireat Eastern Ry. 'Co. (1868) L. R. '.i O. \i. ')')■'), and if the accide ut 
 \vascaiised_li^- flic iie^lijreni.e ..f tlif <)rf;p iitied himsel f ; Hrunncll v. CanaiFian 
 I'aeitie Ry. Co. (1888) lot). R. 37,5, or hy a fellow wprkman (iirovided the 
 VVorknian"s Compen.sation Act does not ajiply) Wigmore v. .lay (1850) ."> Ex. 
 X'>4, or if the ^c.i.ie is left toconjectiire ; Badgerow v. (Jraiid Trunk Rv. Co. 
 (1890) 19 O. R. 191 ; Farmer v. (irand Trunk Ry. Co. (1891) 21 0. R. 299, the 
 action is not niaintainahle. 
 
 In Conger V. (iraiid Trunk Ry. Co. (1887) 13 O. R. 160, where the action 
 was hrought more than six months, but less than twelve months from the 
 death the action was held to he barred by sec. 27 of the Railway Act of 1879 
 (42 V. c. 9 D.) In the case of Zimnier v. The (Jrand Trunk Ry. Co. (1892) 21 
 O. R. 628, 19 A. It. 693, the defendants relied upon the provisions of the act 
 
LORD CAMPHELLS ACT. 
 
 157 
 
 urigiimlly incorporating the railway upon which the acci<k>nt happened, (16 V. 
 c. !K(, ». Ut) aiul three Judges of the Court of Appeal expressea the o]>inion 
 that the twelve niontliH limiratioii proviiled liy the principal act (.s. (i) ap)>lieH 
 to all caHCM, and is not to he restricted or liiiiit'.Ml in its operation l)y any 
 special protection to railway companies. 
 
 What the ctFcct would l)c if the statute of Lnnitations iiad iiin against the 
 deceased has not lieen determined, see per Burton, .1. A. 1!) A. K. TtH. 
 
 Nominal. Actual damage nnist have accrued . The mere i)roof of death an d 
 the relationshriTwill give n o riulit ot action . A vcnlict cannot lie given for 
 nominal damages; liouller v. \\ei)ster (IN4.")) II L. T. .">!tH ; Duckworlii v. 
 Johnson (IH.V.t) 4 H. & N. (>"»3. 
 
 Mental Sufferings. The j ury cupnot tnU-i' in to <oiisi<ierati()!i. nu'utal siifl'e r- 
 inys or h)ss of sociciv ; Blake7 v. .Midland Hv. Co. (IS.VJ) IS (}.K. Ki ; (iill.ird 
 V. Lancasl)ircTui(TTVirksliiri' Hy. Co. (1S4.S) ]■> L.T. XM. 
 
 Funeral Expensea. No allowance cm l>c made for funeral or other exp enses 
 
 TJITE 
 
 on V 
 
 "Rnrnr 
 
 1 hastern 
 
 incident tojhe death, auch as family nioiirnimf. eti 
 Fiy. Co. (IS.IsyiC.H. N.S. \m. 
 
 L oga to Feraonal Estate. In an ac.'tion inider the act, the loss of the persons 
 in whose l)ehalt the action is hrought can oidy he taken into account in assess- 
 ing the damages. If the deceased has lived for some time after the in(|uiry ami 
 his estate has heen thcrehy damaged an action ma y he mniiitaincd hy his i)e r 
 Boiial r epresenta tives f or such los s not uiuler this act, hiii on (iiiiirnif or iui( [j'r 
 RyOTJZT^U s. 10 (see in'fral ; HiWlflhiiU' V. Lancashire ami Yorkshire H v. Co. 
 (187")) L.R. 10 C.P. 18!) ; Leggott v. (ireat Nerthern Kv. Co. (IHTli) 1 (^'B. D. 
 rm-, Barnettv. Lucas (1870) Ir. R. o C.L. 140; Ir. R."(iC.L. 247. The case 
 of Pulling v. (Jreat Kastern Ry. Co. (1881) 9 Q. 15. 1). 110, is not an authority 
 in Ontario hecause of the absence of a provision similar to K.S.O. c. 12}) s. 10. 
 A findi ng in an action under Lord Camph ell's Act hrought hy the execut or 
 \vouin l!fiUQ..jKalojH)eL '" '"' action hroUgllt hy lilni'itli buhal f of t he lisTale ; 
 Leggott V. (ircatNorth ein Ry. Vji. (1« 7 W ) 1 <?.'B.T). . ' ■ nn . • 
 
 Legal Liability of Deceaaed. The damages are not to he given merely in re- 
 spect of the lo.ss of a legal right ; Fr'i.klin v. Louth Kastern Ry. Co. (1808) 3 
 H. & N. 211 ; balton v. South Eastern Ry. Co. (1858) 4 C. B. N. S. 2})(). An 
 action cannot he maintained for the benefit of a creditor; East Tennessee Ry. 
 Co. V. Lilly (1891) })0 Tenn. r>m. 
 
 Nor for a relative within the act, where the only pecuniary benefit to him 
 from the life was derived from a contract which he had entered into with the 
 deceased ; Sykes v. North Eastern Ry. Co. (187")) 44 L.J. C.P. 191. 
 
 Whore the widow of deceased had for some time before his death heen living 
 apart from him in adultery with another man, she has lost her legal right to 
 support, and can recover nothing for his death ; Stimpgon v. Wood (1888) 57 
 L.J.Q.B. 484. 
 
 Actual pecuniary loss. The statute is meant to give compensation not for 
 mental injuries imt only material ones, loss of money or moneys' worth in 
 a material and not in a sentimental sense ; Lett v. St. Lawrence and Ottawa 
 Ry. Co. (1884), 11 A. R. 131. The jury may take into consideration the lo.s3 of 
 the advantages of superior educalion, .social i)ositio!i and pcr.sonal comtort o f 
 
 secured me neneht and 
 
 
 which the father ' s inco me, had he lived, would have sec 
 
 eT\]oynienL; Pym v.'I'Jreat Northern Ry. Co. {IW2\, ii B. & K."":5!». I'he loss 
 toa nusGand of a wife's performance of household duties, and to children of a 
 mother's education, is a loss which can be estimated in money and is recover- 
 able under the Act ; Lett v. St. Lawrence and Ottawa Ry. Co. (1882), 1 O.R. 
 54.) ; 11 A. R. 1 ; 11 S.C.R. 422. The prop m- ipipati on for ^ h e jury is whethe r 
 
 the plain titf h ad a reasonable expectation of aiiy and what pecuniary henefi t 
 ffo mTEe^contmaance of the life ; Franklin v. South Eastern Rv. Co. (I808). 3 
 fl. &N. 211. 
 
 In estimating damages the jury may take into consideration the probable 
 iluration of the life of the deceased according to the Carlisle Tables, and any 
 evidence showing that the life in (juestion was better or worse than the average ; 
 Rowley v. London and North Western Ry. Co. (1873), L.R. 8 Ex. 221. 
 
 But they must not give more than a fair compensation for the loss of which 
 a pecuniary estimate can be made ; Armsworth v. The South Eastern Rv. Co. 
 (1848), 11 Jur. 7r>8; tiillard v. Lancashire and Yorkshire Ry. Co. (1848), 12 
 L.T. 356; Blake v. Midland Ry. Co. (1852), 18 Q.B. 83. 
 
 
 V 
 
 5' 
 
 :? 
 V 1 
 
f' 
 
 168 
 
 LORD CAMPBELLS ACT. 
 
 Prospective advantages depending ujjon more than one contingency or a 
 remote contingency cannot be sliown ; 8 Am. k Eng. Enc. of Law'ind Ed. 943. 
 
 Reasonable expectation. Tiie expectation of pecnniary benefit must be 
 rea.sonable; .Mason v. Bertram (188!.'), 18 O.R. 1. 
 
 'ri)c f()ll<iwing cases illustrate what is rea.sonal)le expectation : 
 
 (II Parents expectation. A father was assisted by his son in carrying coals 
 around tiie wards of a hospital where the father was employed at 3s. (id. a 
 week. He had a rea.sonalile expectation. Hut £7;") was too much ; Franklin 
 V. South Eastern Hy. Co. (1858), 3 H. & N. :211. A boy of 14 earned 4s. a 
 week. There was no evidence of the cost of his board and clothing. V^erdiet 
 £50 su.stained ; Duckworth v. Johnston (1850), 4 H. & N. <)53. 
 
 A boy of 14 had never earned money, l)ut ho was cai)able of earning 6s. a 
 week, aiul the evidence showed that there was a probability he would have 
 enabled his mother to earn more, or wouhl have devoted his earnings to her 
 HU))port, such probability being ba.sed on pa.st filial conduct. This is sufficient 
 evidence of ri!asonal)le expectation to submit to the jmy ; Condon v. (ireat 
 Southern and Western Ry. Co. (1805), 16 Ir. C.L.R. 415. 
 
 A father was 5!) and nearly blind, his .son had assi-stcd him 5 or 6 years before 
 but not since. He had rea.sonable expectation ; Hetherignton v. North Eastern 
 Ry. Co. (1882), I) Q. 15.1). KiO. 
 
 A daughter aged U) assisted in household. In consequence of her death the 
 parent had to emplo\' another servant. He had reasonanle expectation ; Wolfe 
 v. Great Northein Ry. Co. (18!)i;, >26 L.R. Ir. 548. 
 
 A dauglitcr 12 years old, who liad never earned money, but who might in a 
 year oi- so have earned money in a factory. Verdict £15 ; Branmuill v. Lees 
 (1852), 29L.T. 111. 
 
 Where a mother sued for dai'iages for death of her .son, who had covenanted 
 to pay her an annuity during their joint lives, the Court held (1) that the (irac- 
 tice and tables of life insurance companies are admissible in evidence to show 
 the average duiation of life, (2) that evidence of tlic present value of an annuity 
 for the joint lives is admissible, (3) that the jury's attention should be called 
 to the dirt'erence in value between an annuity on government seeur'ty and oiie 
 secureil b3' per.sonal covenant, (4) that tlie jury should l)e dirccte<l not to give 
 damages to the amoini': of a perfect eompensation, but should take a reasonal)lo 
 view and give wh.it thev considered muler the circumstances a fair compensa- 
 tion ; Rowley v. London and North Western Ry. Co. (1873), L.R. 8 Ex. 221. 
 
 Wlicie a (lecca.sed son earned good wages and visited his ])arents fortnightly 
 taking ])rescnts of sugar, meat, etc., and occasionally made mone^' presents to 
 them, a veiiHc't of CHi) foi- the fathci' and £4(1 for the mother was sustained ; 
 Dalton V. South Eastern Hy. Co. (18.58), 4C.1$.N.S. 2!)(). 
 
 Expectation not Reasonable. A son just of age had assisted on his father's 
 farm for iwo years before death, and bad gone to Higli Scliool with the 
 intention of being cdiuated for a doctor at the father's expense. Upon the 
 evidence the (,'ourt were of opinion that an alleged exjjcctation that he would 
 give the fatlu^r money when he had acipiired his ))rofession, did not rest u])on 
 any rcasonal)le foundation, and a verdict of ;j!2(MI was set aside ; Mason v. 
 Bertram (1889) 18 O.R. 1. 
 
 Where a son worked for bis father and received full wages, the father suffers 
 no pccmiiarv loss l)v his de.'ith ; Svkes v. Noitli Eastern Rv. Co. (1875) 44 L. 
 J.C.P. 191."^ 
 
 Where there was no evidence of loss by the death of a child the action was 
 dismissed ; Boulter v. Web.ster (1^6,5) 13 W.R. 289. 
 
 There are decisions in the f.ish Courts that no injury <^an result from the 
 dijath of one from whom no benclit has been received during his life ; Bourko 
 V. Cork and .Macr.iom Ity. Co. (1879)4 L.K. Ii-. 682 ; Hollcian v. BagncU (1880) 
 6L. K. Ir. XVA ; but these are not to be followed here, ])ei' Pattcison, .I.A. ; 
 Lett v. St. Lawrence and Ottawa Hy. Co. (1.S84) 11 A.H. 29. 
 
 Where deceased left a mother and a widow and cliildrcn and the jury awarded 
 £3, (MHI, the court thought the mother coidd have no claim; Sccord v. (ireat 
 Western Hy. Co. (18.-.5) 15 U.C.R. 631. 
 
 (2) Expectation of Husband. No aver)(men^of pecuniary dannige is neces- 
 sary in the statement of claim ; Chapnuin v. Rothwell (1858) 11 .fur. K.S. 180. 
 
LORD CAMPBELLS ACT. 
 
 159 
 
 A recovery of £'25 of which .€10 was awarded for the liuslmnd and i'l "> for 
 the chihh'en was not attached. The evidence showed that tlie wife by her 
 industry iiad eontril)uted 1(( s. a week towards tlie maintenance of tlie family ; 
 ( lotton \: Wood ( 1 8(J( I ) S ( ;. 15. N. S otiH. 
 
 In an action hy a ganhnii^r there was no specific evidence of loss, but the 
 Court assumeci that slie was a person of average liealth, industry and g((od 
 cliaraitter, and thus gave a pecuniary assistance to a poor man in housekeep- 
 ing ; Venlict for f'iOO sustained. Cfhant v. Soutli Easti^rn Ry. Co. (ISlUi) W. 
 N. \M. 
 
 A husband recovered l'l(K) and the verdict was sustained ; Wilkins v. Day 
 (1884) 1:2 Q.B.I). 110. 
 
 Out of a verdict of .^.WfH), the husband was awarded .?1")00 for loss of assis- 
 tance in household duties, and the verdict was sustained ; Lett v. St. Lawrence 
 and Ottawa Ky. Co. (188-_') 1 O.K. r)4.j ; 11 A.R. 1 ; 11 S.C.K. 4±i. Leave to 
 appeal was rt'fuscd by tlie I'livy Council. 
 
 Expectation not Reasonable. Wliere a iuisband and wife liad (juarrclled and 
 had lived ai)ait for some years, tlie wife was kilk'd at tlie age of ")() and woulil 
 have been entitled to tT'MMI on death of mother, the husliand was held to have 
 no reasonable expectation of pecuniary benefit ; Harrison v. London and North 
 Western Hy. Co. {188.")) 1 C. & K. ."i40. 
 
 (S) Widow's and Children's Expectations. Where the bulk of the estate of 
 the deceased went to his eldest son, the jury were held to be entitled to have 
 regard to the damage respectively sustained liy the widow and younger chil- 
 dren, and to award damages in i..spect of their reasonable txpectations 
 although the damage would not not have resulted from the accident if the de- 
 ceased had lived. The wife of a wealthj' gentleiuaii was awarded €1(100 and 
 each of his younger children i'KMMI. Pym v. (Ireat Northern Ry. Co. (18t)2) 
 •2 H. &S. T-iit; 4 H. & S. :W{). 
 
 Expectation not Reasonable. The deceased resided with and was supported 
 
 by the daughter and assisted \wv in the laundry business and in cooking and 
 serving meals ; but there was no evidence that the value of Iier services exceeded 
 the cost of I'.er support. She had no rea.sonabh^ expectation of pecuniary bone- 
 fit ; Hall V. (ireat Northern Ry. Co. (1801) 20 L.R. Ir. 280. 
 
 The deceased was the stepmother of plaintiff. The family was in hundile 
 circunistances. The jilaintill' for six months liefore had earned .5 s. a week in 
 a factory. Tiie steimiother eained (> s. a week besides her food. No reason- 
 able expectation ; .lolinstoii v. (ireat Northern Ry. Co. (1801) 2(i L.R. Ir 091. 
 
 Deduction of Insurance Money. A sum iiavajile to the pxrties entitle;! t o 
 <lamagc s on an ai^' ident iiolicy on j deceased s lii'e, slioulil lie dcductc'l ; Hicks 
 vTlTI^wport, Abei-gavcnnv and Mciet'oid Ry. Co. (lf(."7) 4 "11. k S. 40;J ii. ; 
 Hradburn v (ireat Western Ry. Co. (1874) L. R. 10 Kx. 1 ; Beckett v. (irand 
 Trunk Ry. (Jo. (188()) 13 A. R." 174 at p. 187. 
 
 But the amount jiayable in res|)ect of a contract of lifeiiiHUiance (otherthan 
 accident) is not to Ih^ dcdiictiMl, Imt the Jury may be directed to take into 
 account all nioney pidvisii.ns made l>y the deceased for the parties injured by 
 his (leatli imluiling a life policy. Tlu; extent to which tlie.se ought to bo 
 imjmtcd in reduction of damages, depends u|)on the nature of the provision, 
 and the position and means of the deceased. Where a policy had been paid up 
 by a man out of iiis earnings, tiie I'xtent of tlu' benefit is fairly repre.seiileil by 
 the interest ui>on the money, during the period lictween the receipt of the 
 inoney and tiie time win ii it would ordinarily iiave been received, but for his 
 preniiitiire death, (irand Trunk Ry. Co. v. .'leiinings (1888) Kl ,\pp. ('as. 8(M), 
 and if tliei(i are pi-emiiims to pay, also by the amount tliereof. Hicks y. New- 
 port &c. Ry. C< , (I.«.")7) 4 B. & L. 4():i n.",see also lieckctt v. (irand Trunk Ry. 
 
 Co. (1S8(>) l.S A. 
 
 174; lOS.C.R. 7i:i. 
 
 Settirof aside Verdict. Where the daniagesawnrdcd liy the jury wen; beyond 
 he lieiui'iary dainancs shown, a new trial was directc<l ; Blake v. Midland 
 
 the 
 
 Ry. Co. (IH.V2) 18 i).H. 8.'1, unless the plaintitl' consented to a reduction; 
 Ciniiin V. (inuid Trunk Ry. Co. (1808) 18 C. L. T. :iO(i. 
 
 Where the jury evidently shirked the issue of contiibutin'v iiegligiMice and 
 
 awarded 4(t s. 
 chil 
 
 as a compromise, of wni< li 
 
 10 
 
 was givt ii to each of tin 
 
 dren a new trial was ordered ; .Springett v. Balls (180.")) (t ll. & S. 477 ; 4 
 
 V. & F. 472 
 
 4C 
 
 '"^' . 
 
 r' - 
 
 c 
 
 ,>/>, 
 
 ■;i?, 
 
 ■ t. 
 
 1 
 
w 
 
 160 
 
 LORD CAMPBELLS ACT. 
 
 A verdict of foOOOfor the death of a blacksmith, 3') years of age, of good 
 hahits is oxci's.sivc ; Morley v. (ireat Western Ry. Co. (1858) 16 U. C. R. 504. 
 
 Apportionment of Damage. At a trial the judge or jury a))|)ortion the dam- 
 ages among tlie jiaitics entitled. Where one of the parties i whom damage.s 
 wei'e awarded ditd after verdi('t and before juilgmeiit, the lurt directed a 
 new trial unless the amount awarded to him was ledueed to UMt -that being 
 the exjKMise to his mother of his illness and maintenance ; ^ibbald v. <lran(l 
 Trunk Ry. Co. (ISitO) 19 0. R. 1(54; 18 A. K. 184; but where the child was 
 .sole plaintitl and flied, but judgment was entered in proper time by his ne.xt 
 friend, the veidict was not disturbed ; Krame- v. Waymaik (18(50) L. R. 1 Ex. 
 241. Whei-e tlu^ defendants paid £85(10 into court for a widow and four 
 children, tlie amount was apportioned by anology to the statute of distribnt 
 iciis, one third to tiu' widow and two-thirds to the children ; Sander.son v. 
 Sandei.son (1877) 8(5 L. T. 847, and in another case the widov was allowi'd to 
 witlidraw the nioiiev on her con.sent to a distribution being made a nde of 
 Court: Shallow V. X'einon (1873) Ir. R. !) (/'. L. 150. An amount ])aid in 
 settlement is a trust fiuid, and may be apportioned in an action to adnini.stei' 
 the tru.st fund ; ('ondlif V. Condli'f (1870) 'iK L. T. 831 ; Hulmer v. Buhner 
 (1884)25 Ch. 1). 40!). 
 
 Only one Action. The defendant is not to be vexed with more than one act- 
 ion on bclialf of the defendants. An action may be brought by any one of the 
 parties entitled to damiiges within the six months from the death, if there be 
 no exe(^utor or administrator ; Lampman v, (iainsborough (1888) 17 O. R, IBl; 
 HoUeran V. Hagnell ( 187!)) 4 L.R. Ir. 740; Curran v. (Jrand Trunk Ry. Co. 
 (1898) 18 ('.L.T, .S!((i. J'arties entitled to share will not be aUowed to api)ear by 
 separate counsel an<l solicitor ; Steele v. (ireat Northern Ry. Co. (isf)l) 2(5 L. 
 R. Ir, !)(), but where an amount is i)aid into Court before trial and accepted, 
 parties entitled mav be heard by coinisel as to their share.s therein ; Johnson 
 v. Great Northein Ry. Co. (1887) 20 L. R. Ir. 4. 
 
 Within 12 months. The minority of the plaintitt's does not jirevent tlie run- 
 ning of the statute, 8 Am. & Eng". Ency, of Uiv.' (2nd Ed.) 875, .see Miller v. 
 Ryerson (18})2) 22 O, R. 3(59. 
 
 Particulars. Tlie statement of ('laini need not negative the existence of any 
 relatives entitled to compensation other than tho.se on wlio.se behalf the action 
 is brought ; Barnes v. Wanl (1850) 9 C. B. 392. 
 
 (For a full (•nllection of authorities see '' Death by wrongful act," 8 Am. & 
 Eng. Knc. of La»v (2nd Ed.) 851-959). 
 
M. 
 
 II- 
 
 ;c's 
 a 
 Hi,' 
 11(1 
 as 
 xt 
 
 lur 
 It- 
 
 V. 
 
 t(i 
 
 111 
 
 K'f 
 c.t- 
 
 Aw 
 
 1)0 
 
 Ji I. 
 Iiv 
 1^. 
 f(l, 
 ^1111 
 
 my 
 ion 
 
 
 PART V. 
 
 Practice and Procedure* 
 
 C - 
 
 [161] 
 
 i 
 
_^^,^JJ^^^. 
 
 13 ' 
 
4. CONSTITUTION OF THE PROVINCIAL COURTS. 
 
 CHAPTER 51. 
 
 An Act respecting the Supreme Court of Judicature 
 
 of Ontario. 
 
 Short titlk, a. 1. 
 Interpretation, a. 2. 
 
 CONSTITCTIDN OF SUPREME CoURT, 
 
 S3. 3-24. 
 Supreme Court continued, s. 3. 
 JudguH, 88, 3, 4. 
 Judgment by Judge wlio haa re- 
 
 aigiied, a. 5. 
 Court of Appeal continued, s. 6. 
 Judgea, 88. 6, 7. 
 Judgea or retired Judgea may 
 
 hf)ld Aaaizea etc., as 9, 10. 
 How to be couatituted to hear 
 
 appeala, a. 11. 
 How Quorum to be made up, 
 
 aa. 12-16. 
 Judge whoae decision appeal- 
 ed from not to sit, a. 17. 
 Judgment in absence of a 
 Judge who heard cau?e, sa. 
 18, 19. 
 Presiding Judge, s. 20. 
 Sitiinga, a. 21. 
 Precedence of .Judges, a. 8. 
 Oath of Judgea, as. 22, 23. 
 Seala of Court of Appeal and 
 High Court, a. 24. 
 
 JURI.SUICTION OF HlOH COURT, 88. 
 
 25-4S. 
 
 JURI.SDICTION OF CoURT OF APPEAL, 
 BB. 49-56. 
 
 RuLKs OF Law, aa. 57-59. 
 
 Notice to be given to Minister of 
 
 JUHTICK AND TO AtTORNEY-Gen- 
 ERAL before ANY AcT DECLARED 
 INVALID, 8. 60. 
 
 Sittings of Court and dlstribu- 
 
 T^ON OF BUSINESS, 88. Cl-71. 
 
 Appeals, aa. 72-77. 
 
 Ll.MIT.\TION of TIME FOR APPEALING, 
 
 88. 78-80. 
 
 Effk^t of judicial decisions, 8. 81. 
 
 Sittings for Trials, as. 82-91. 
 
 Trial of Superior Court Ca.ses 
 IN County Courts and of 
 County Court Cases in .High 
 Court, sa. 92-96. 
 
 Certificate of Lis pendens, ss. 
 
 97-100. 
 Assessors, a. 101. 
 
 Trial and Procedure, sa. 102-112. 
 InTEREBT, 88. 113- 116. 
 
 Actions on Fokeion Judgments, 
 as. 117, 118. 
 
 CosT.s, 119. 
 
 Witne.ss fees of officials, 8. 120. 
 
 References to Master in Ordin- 
 ary, a. 1'<;1. 
 
 Rules of Court, aa. 122-129. 
 
 Officers and Offices, as. 1.30-184. 
 
 Local .Judges of High Court, 
 a. 185 
 
 Transfer of Causes from County 
 OR Division Court's to High 
 Court, a. 186. 
 
 Miscellaneous, sb. 187-191. 
 
 HER MAJESTY, by and with the advice and consent, of 
 the Legi.slative A.ssembly of the Province of Ontario, 
 enacts as follows : — 
 
 
 TITLE. 
 
 1. This Act may be cited as " The Judicature Act." 58 V. Shorftitle. 
 c. 12, s. 1. 
 
 [163] 
 
 
 ^ 
 
 '^ 
 
164 
 
 Sec. 2 (13) 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 INTERPRETATION. 
 
 Interpretation 
 of terms. 
 
 <■ 
 
 'i. Where the words following occur in this Act and in the 
 Rules, made thereunder they shall be construed in the manner 
 hereinafter mentioned unless a contrary intention appears. 
 
 1. " Rules of Court" shall include forms. 
 
 2. " Cause " shall include any action, suit, or other original 
 proceeding between a plaintiff and a defendant. 
 
 3. " Action " shall include suit and shall mean a civil pro- 
 ceeding commenced by writ, or in such other manner as may 
 be prescribed by rules of Court. 
 
 4. " Matter" shall include every proceeding in the Court not 
 in a cause. 
 
 5. " Plaintiff" shall include every person asking any relief 
 (otherwise than by way of counter-claim as a defendant) 
 against any other person by any form of proceeding, whether 
 the same be taken by action, suit, petition, motion, sunjmons, 
 or otherwise. 
 
 6. "Petitioner" shall include every person making any 
 application to the Court, either by petition, motion or summons, 
 otherwise than as against any defendant. 
 
 7. " Defendant " shall include every person served with any 
 writ of summons or process, or served with notice of or 
 entitled to attend any proceeding. 
 
 8. " Party " shall include every person served with notice of 
 or attending, any proceeding, although not named on the 
 record. 
 
 9. " Pleading " shall include any petition or summons, and 
 shall also include the statement in writing of the claim or 
 demand of any plaintiff, and of the defence of any defendant 
 tliei'eto, and of the reply of the plaintiff to any counter-claim 
 of a defendant. 
 
 10. " Judgment " shall include decree and a decretal order. 
 
 11. " Order " shall include rule. 
 
 12. " Oath " shall include solemn affirmation and statutory 
 declaration. 
 
 13. " Proper officer " shall, unless and until any rule to the 
 
 contrary is made, mean an officer to be ascertained 
 as follows : — 
 
 (a) Where anj' duty to be discharged under this Act 
 or under Rules of Court is a duty which has 
 been discharged by any officer, such officer shall 
 continue to be the proper officer to discharge 
 the same, until otlierwise provided by Rule. 58 
 V. c. 12, s. 2, (1— 13a.) 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 2 (13). 
 
 165 
 
 {b) Where any new duty is, under the Rules afore- 
 said, to be discharged, the proper officer to dis- 
 charge the same shall be such officer as may 
 be named in the Rules or in case no officer is so 
 named then such officer as may from time to 
 time be directed to discharge the same by the 
 President of the High Court. 59 V. c. 18, 
 8ched. (1) ; 60 V. c. 3, s. 3. 
 
 CONSTITUTION OF THE SUPREME COURT OF JUDICATURE 
 FOR ONTARIO. 
 
 3. (1) The Supreme Court of Judicature for Ontario at |Xt'Sf Judi- 
 present existing is hereby continued, and all commissions, c.-vture con- 
 rules, orders and regulations granted or made in, by, or respect- tinued. 
 ing the former Court of Queen's Bench for Ontario, the Court 
 of Chancery for Ontario, and the Court of Common Pleas for 
 Ontario, or the Supreme Court of Judicature, the Court of 
 Appeal, and the High Court of Justice, or the Judges or officers 
 thereof now existing and in force shall remain in force until 
 altered or rescinded or otherwise determined. 
 
 (2) The Supreme Court shall continue to consist of two per- 
 manent divisions, to be called The High Court of Justice for 
 Ontario, and The Court of Appeal for Ontario. 
 
 (3) The High Court of Justice for Ontario shall continue to 
 consist of three divisions, to be called The Queen's Bench Divi- 
 sion, The Chancery Division, and The Common Pleas Division 
 of the High Court. 
 
 (4) The Queen's Bench Division shall during the reign of a 
 King, be called The King's Bench Division, and during the 
 reign of a Queen, The Queen's Bench Division. 
 
 (5) The pensons hereafter appointed to till the places of the 
 Chief Justice of the Queen's Bench, the Chancellor of Ontario, 
 and the Chief Justice of the Common Pleas, and their successors 
 respectively, are to be appointed by the authority mentioned 
 
 in The British North Amierica Act and with the same respec- ^™R; ^***- 
 tive titles as heretofore. 
 
 (6) The persons to be appointed Judges of the High Court 
 shall be Barristers-at-Law of at least ten years' standing at the 
 bar of Ontario. 
 
 (7) Save as in this Act is otherwise expressly provided, all 
 the Judges hereinbefore mentioned, and their successors, shall 
 have in all respects equal power, authority and judisdiction. 
 
 (8) The Chief Justice of the Queen's Bench shall be the Presi- 
 dent of the Queen's Bench Division, the Chancellor shall be 
 the President of the Chancery Division, and the Chief Justice 
 of the Connnon Pleas shall be the President of the Common 
 Pleas Division. 
 
 
 
 
w 
 
 160 
 
 Sec. 6. 
 
 THE JUDICATURE ACT. 
 
 hap. 51. 
 
 4-i 
 
 (9) Besides the Chief Justice of the Queen's Bench, two 
 Justices of the Higli Court shall be attached to the Queen's 
 Bench Division ; besides the Chancellor of Ontario, subject to 
 section 4, three Justices of the High Court shall be attached to 
 the Chancery Division ; and besides the Chief Justice of the 
 Common Pleas, two Justices of the High Court shall be 
 attached to the Common Pleas Division. 
 
 (10) The President of the said High Court shall be that 
 one of the Presidents of the Queen's Bench, Chancery and 
 Common Pleas Divisions, who for the time being, is first in 
 order of seniority. 
 
 (11) Upon a vacancy happening among the Judges, the 
 Judge appointed to fill the vacancy is (subject to the provi- 
 sions of this Act, and to any rules of Court which may be 
 made pursuant thereto) to become and be a member of the 
 same Division to which the Judge whose place has become 
 vacant belonged. 
 
 (12) Nothing in this Act shall prevent, or shall be con- 
 strued as intended to prevent the transfer of any Judge of 
 any of the said Divisions from one to another of the said Divi- 
 sions. 58 V. c. 12, s. 3. 
 
 Detachment 4. — (1) One of the four Judges of the Chancery Division 
 
 fromChancery ™^y' ^^*^ ^'^ Consent, be detached from the said Division 
 
 Division. without being appointed to any other Division of the said 
 
 Court or ceasing to be a Judge of the High Court. 
 
 (2) In case of a vacancy occurring in the said Chancery 
 Division without a Judge thereof having been detached there- 
 from the Judge to be appointed to the High Court in conse- 
 quence of the vacancy shall not be attached to any particular 
 division thereof. 
 
 (3) In either of such cases each of the Divisions of the High 
 Court shall thenceforward have the same number of Judges. 
 
 (4) The Judge so detached or appointed shall continue a Judge 
 of the High Court, and shall from time to time exercise his judi- 
 cial functions in any of the divisions thereof. 58 V. c. 12. s. 4. 
 
 5. Where a Judge resigns his office, and any case which has 
 been fully heard by such Judge, either alone or jointly with 
 other Judges, stands for judgment, he may give judgment 
 therein as if he were still a Judge of the Court; and any 
 such judgment shall be of the same force and validity as if he 
 were still such Judge, provided that such judgment of the Judge 
 be delivered within six weeks after his resignation. 58 V. 
 c. 12, s. 5. 
 
 i . 
 
 ( 
 1 
 
 Judgment by 
 
 i 
 
 Judge who 
 
 ,i 
 
 reRigns after 
 
 i' 
 
 case heard. 
 
 Existing <». The Court of Appeal for Ontario, at present existing 
 
 Appeal' con- ^^ continued under that name, and shall consist of a Chief 
 tinned. Justice, to be called the Chief Justice of Ontario, and four 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 6. 
 
 I(i7 
 
 other Judges to be called Justices of Appeal and the Judges 
 of the High Court, shall be e^i-o^cio Judges of the Court of 
 Appeal, so as to provide for the casesinentioned in sections 12, 
 13 and 14 of this Act. 58 V. c. 12 s. G ; 60 V. c. 13, s. 1. 
 
 H. The Chief Justice of Ontario and the Justices of Appeal J^^^i^^^^ ^ 
 may be selected from the Judges for the time being, or the the Court of 
 retired Judges of the High Court, or from such barristers as are Appeal, 
 eligible to be appointed J udges of that Court. 58 V. c. 12, s. 7. 
 
 8.— (1) The Chief Justice of Ontario shall have rank and P«'«o«dence of 
 precedence over all other Judges of the Courts in Ontario. 
 
 (2) The Justices of Appeal, the Chief Justice of the Queen's 
 Bench, the Chancellor of Ontario, and the Chief Justice of the 
 Common Pleas shall have rank and precedence among them- 
 selves according to their seniority of appointment to any of 
 the said offices. 
 
 (3) The other Judges of the High Court shall have rank and 
 precedence among themselves according to seniority of appoint- 
 ment to their respective offices. 58 V. c. 12, s. 8. 
 
 i>. The Chief Justice of Ontario and the Justices of Appeal J/^^^g c*urt 
 may, in addition to their duties as Judges of the Court of Ap- of Appeal 
 peal, preside over Courts of Assize and Nisi Prius, Oyer and Ter- ™»3; hold 
 miner and General Gaol Delivery, and hold sittings of the High ^ ^**' 
 Court of Justice, for the trial of civil causes, matters and 
 issues, and criminal matters or proceedings ; and every such 
 Justice in the exercise of such duties shall have the same 
 rights, powers and privileges as a Judge of the High Court 
 presiding at such Court or Sittings. 58 V. c. 12, s. 9. 
 
 10. Upon the request of the Judge or Judges with or for Provision for 
 whom he is requested to sit or act, it shall be lawful for any vacancy "in 
 Judge of the Court of Appeal, or any retired Judge of the said office of a 
 Court, or of the High Court, who may consent so to do, to sit ^^^' 
 and act as a Judge of the said High Court, or to perform any 
 other official or ministerial acts for or on behalf of any Judge 
 absent from illness or any other cause, or in the place of any 
 Judge whose office has become vacant, or as an additional Judge 
 of any Division; and while so sitting and acting, any such Judge 
 of the Court of Appeal or retired Judge shall have all the power 
 and authority of a Judge of the said High Court. 58 V. c. 12, 
 s. 10. 
 
 
 APPEALS. 
 
 1 1. — (1) Subiect to sections 18 and 19 of this Act. Quorum of 
 
 "^ court of ap- 
 
 (a) Appeals from decisions of Divisional Courts and P^*'' 
 
 appeals under The Controverted Elections Act, Rev. Stat. 
 shall be heard and disposed of by the full Court c- n. 
 of five Judges. 
 
1G8 
 
 Sec. 14. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 Hearing or 
 re-arKuin« 
 ca.s« Defor" 
 five judgpH. 
 
 (b) All other appeals, including appeals from the judgment 
 of a single judge, ma}' be heard and disposed of by 
 not less than thx-ee judges. 
 
 (2) Where an appeal comes before a court of three Judges 
 the Court instead of hearing such appeal, or giving judgment 
 thereon, may direct the case to be heard or re-argued, as the 
 case may be, before the full Court. 60 V. e. 13, s. 2. 
 
 DiviHiunal 
 
 Courts of 
 C.iiirt of 
 Appeal. 
 
 I'i. — (1) In ca.se from pressure of busine.ss, or other cau.se, 
 it shall at any time seem expedient to the Lieutenant-Governor 
 in Council, or to the Judges of the Supreme Court, or a majority 
 of them (of which majority two Judges of the Court of Appeal, 
 including the Chief Justice, unless absent on leave, shall form 
 part), the Court of Appeal may sit in two Divisions either at the 
 .same time or at different times ; and in such case and to enable 
 two Divisional Courts of the Coart of Appeal to be held, the 
 judges of the Supreme Court, or the said majority of them, 
 shall select from the Judges of the High Court a Judge or two 
 of the Judges thereof as may be neces,sary to form, with the 
 Ju.stices of Appeal, two such Divisional Courts ; and every 
 Judge .so chosen shall, while sitting in a Divisional Court of 
 the Court of Appeal, have and may exercise all the powers and 
 authority of a Justice of Appeal. 
 
 (2) At least two of the Justices of the Court of Appeal shall 
 sit in such Divisional Court. (50 V. c. 13, s. 4. 
 
 Quorum may lit. In case of there being a vacancy in the Court of Appeal 
 tho'judges'of^ ^^' ^^ ^^^^ from illness or some other cause, any of the Judges 
 tlie High of the said Court are not present at some sitting of the Court, 
 Court. Q^. j^ gg^j^g g^j^y j^j£ ^Ij^, yg^jj Jndges are under some legal disquali- 
 
 fication to hear an appeal, the Judges of the High Court shall 
 choose from amongst their number as many Judges as are 
 neoes.sary, to form a quorum ; and the Judges so cho.sen and 
 acting shall have authority to continue to hear appeals partly 
 heard, and to give judgment in all appeals heard before them, 
 notwithstanding that such vacancy may in the meantime 
 have been tilled up, or that the Judge who was absent may 
 have resumed his duties. o8 V. c. 12, s. 13 ; 60 V. c. 13, s. 5. 
 
 High Court 
 sitting in 
 Court of Ap- 
 peal. 
 
 1 4. In ca.se of a Judge or Judges not having been cho.sen by the 
 Judges of the Suj)reme Court, iis mentioned hereinbefore in this 
 Act, or in case of the Judge or Judges chosen not being available, 
 the senior of the Presidents of the Divisions of the High Court 
 shall sit in the Court of Appeal where one Judge only is needed 
 from the High Court, the two senior Presidents where two are 
 neeiled. Any other Judge of the High Court may sit in the place 
 of one of the Presidents by arrangement between such other 
 Judge and the President whose duty it is to sit as aforesaid. 58 V. 
 c. 12, .s. 14 ; c. 13, s. 4 ; 59 V. c. 18, Sched.(2) ; 60 V. c. 13, ,'*. 6. 
 
Chap. 51. 
 
 THE JUDICATUUK ACT. 
 
 Sec. 16. 
 
 109 
 
 1 5. Whero a Judge of the High Court is selected or it Duty in Court 
 becomes his duty, under this Act, to sit in the Court of Appeal, h|^^''^*g^" 
 the business of the Court of Appeal shall thenceforward have euceover 
 precedence of all other judicial duty of such Judge. 58 V. c. 12, ''|her work of 
 s. 15 ; c. 13, s. 5. judge. ""'^' 
 
 10. Judges, of the High Court to whom at any time shall Judges select- 
 fall the duty of sitting in the Court of Appeal, or in a Divisional ^ *" "* *" 
 Court thereof, shall continue to be the Judges to pei form such peal until 
 duty until a selection, or new selection (as the case n)ay be), "ther selection 
 shall be made by a majority of the Judges of the Supreme 
 Court. i)8 V. c. 12, s. 16 ; c. "13, s. 7. 
 
 I T. No Judge against whose judgment an upjieal is brought, .judge ap- 
 or who took part in the trial of the cause or matter, or in the pealed from 
 hearing in the Court bplow, shall sit or take part in the hear- 
 ing of or adjudication upon the pioceedings in the Court of 
 Appeal. 5U V. c. 18, Sched. part of (3). 
 
 1 8. Where a Judge has heard a case in the Court of Appeal Reading 
 and is not present at the time of the judgment of the Court ^vf^*^™ 'jf^g 
 being delivered, his written judgment may be read by one of 
 the other Judges of the Court and .shall have the same effect 
 as if he were present. 59 V. c. 18, Sched, part of (3). 
 
 1J>. In case, after a cause or matter in the Court of Appeal in certain 
 has been heard and stands for iudtjraent, one of the Judges bv '=*«es judg- 
 whom the appeal was heard is transferred to the Supreme given notwith- 
 Court of Canada or resigns his office, or is absent from illness standing a 
 or other cause, or dies, the remaining Judges, if unanimous in occurs!^ 
 their decision, may give judgment as if such Judge were still a 
 Judge of the Court of Appeal, and were present and taking 
 part in the said judgment. 59 V. c. 18, Sched, part of (3). 
 
 20. In the absence of the Chief Justice of Ontario, the Judge Presiding 
 entitled to precedence over the other Judges present shall pre- J"dKe in 
 
 •irrotrioi^- oi x absence i)f 
 
 Side. 58 V. C. 12. s. 1/. Chief Justice. 
 
 lit. The Court of Appeal shall, su1»ject to the provisions of Sittings of 
 section 62 of this Act, hold its sittings at the City of Toronto ^£1!"*'°^ 
 at such times and for such periods as the acting Judges thereof 
 for the time being, or a majority of them, may deem necessary 
 or convenient for the speedy despatch of business. 58 V. c. 12, 
 s. 18. 
 
 OATH OF JUSTICES. 
 
 *Z'i. The oath to be taken by the Judges to be hereafter Oath of office, 
 appointed shall be the following : 
 
 " I do solemnly and sincerely promise and swear, that I will duly and 
 fiiiohfuUy, and to the best of my skill and knowledge, execute the powers 
 and trusts reposed in me as ; ao help me God." 
 
 ')8 V. c. 12, s. 19. 
 
 g 
 
 - 1 
 
170 
 
 Sec. 26. 
 
 THK JUDlCATUItE ACT. 
 
 Chap. 51. 
 
 I 
 
 ALtiniMstra- •>;{ 'i'i,y oath is to he administered to the Chief Justices and 
 
 the Chancellor bj- the Lieutenant-Covornor in Council, and to 
 the Justices of the High Court, other than the Chief Justices, 
 in presence of the President of the High Court ; and to the 
 Justices of the Court of Appeal in open Court by the Chief 
 Justice of Ontario, unless the Lieutenant-Governor in any oi 
 such cases shall otherwise direct. 58 V. c. 12, .s. 20. 
 
 SEALS OF THE COURT OF APPEAL AND OF THE HIGHCOUKT. 
 
 ScaiM of Court 24. The seals heretofore, from time to time, in use in and 
 Hi^'cuurt"'' for the Court of Appeal and the High Court, shall be deemed 
 to have been the proper seals of the said Courts respectively, 
 and shall so continue until another seal is authorized by the 
 Lieutenant-Governor in Council for either of the said Courts ; 
 and any seal so authorized may be afterwards changed by the 
 Lieutenant-Governor in Council ; and the seal from time to 
 so authorized shall be the seal of the Court for which it is 
 authorized and by which its proceedings shall be certified and 
 authenticated. 44 V. c. 5, s. 8 ; 59 V. c. 18, s. 9. 
 
 
 Jurisdiction 111 
 High Court. 
 
 Kquit 'ble 
 jurisdiction 
 
 JURISDICTION OF HIGH COURT. 
 
 /J5. The High Court shall be a Superior Court of Record of 
 original jurisdiction, and shall, subject as in this Act men- 
 tioned, possess all such powers and authorities, as by the law 
 of England, ai'e incident to a Superior Court of civil and 
 criminal jurisdiction; and shall have, use and exercise all the 
 rights, incidents and privileges of a Court of Record, and all 
 other rights, incidents and privileges as fully to all intents and 
 purposes as the same were on the 5th day of December, 1859, 
 used, exercised and enjoyed by any of Her Majesty's Superior 
 Courts of Common Law at Westminster in England, and may 
 and shall hold plea in all and all manner of actions and causes 
 as well criminal as civil, and may and shall proceed in such 
 actions and causes by such process and course as are provided 
 by law, and as shall tend with justice and despatch to deter- 
 mine the same ; and may and shall hear and determine all 
 issues of, law and may and shall also hear and (with or with- 
 out a jury, as provided by law) determine all issues of fact that 
 may be joined in any such action or cause, and judgment 
 thereon give, and execution thereof award in as full and ample 
 a manner as might, at the said date, be done in Her Majesty's 
 Courts of Queen's Bench, Common Bench, or, in matters which 
 regard the Queen's revenue (including the condemnation of 
 contraband or smuggled goods), by the Court of Exchequer in 
 England. 58 V. c. 12, s. 21. 
 
 ?80. The High Court sliall also, subject as in this Act men- 
 tioned, have the like jurisdiction and powers as by the laws of 
 E'lgland were on the 4th day of March, 1837, possessed by the 
 Court of Chancery in England, in respect of the matters here- 
 inafter enumerated, that is to say : 
 
Chap. ol. 
 
 THE JUDICATURE ACT. 
 
 Sec. 26 (I). 
 
 171 
 
 1. In all cases of fraud and accident : 
 
 2. In all matters relating to trusts, executors and adminis- 
 trators, copartnership and account, mortgages, awards, dower, 
 infants, idiots, lunatics and their estates ; 
 
 8 To stay waste ; 
 
 4. To compel the specific performance of agreements ; 
 
 5. To compel the discovery of concealed papers or evidence, 
 or such as may be wrongfully withheld from the party claim- 
 ing the benefit of the same ; 
 
 6. To prevent multiplicity of suits ; 
 
 7. To decree the issue of Letters Patent from the Crown to 
 rightful claimants ; 
 
 8. To repeal and avoid Letters Patent issued erroneously or 
 by mistake, or improvidently, or through fraud. 58 V. c. 12, 
 s. 22. 
 
 'a 
 
 /8T. The rules of decision in the said matters in the last Rules of deci- 
 preceding section mentioned shall, except where otherwise pro- "^g'" *"° 
 vided, be the same as governed the Court of Chancery in 
 England, in like cases, on the 4th day of March, 1837. 58 V. 
 c. 12, s. 23. 
 
 28. The High Court shall have the like jurisdiction and Jurisdiction 
 power as the Court of Chancery in England possessed on the formerly^o*" 
 10th day of June, 1857, as a Court of Equity to administer adequate 
 justice in all cases in which there existed no adequate remedy "^"^ ''*' *^' 
 nt law. 58 V. c. 12, s. 24. 
 
 ?8!>. The High Court shall have the like equitable jurisdiction Jurisdiction 
 in matters of revenue as the Court of Exchequer in England r"v™nue*" °' 
 possessed on the 18th day of March, 1S65. 58 V. c. 12, s. 25. 
 
 30. The High Court shall have power to relieve against a Relief agwnst 
 forfeiture for breach of a covenant or condition in any lease to breach"o7cove- 
 insure against loss or damage by fire, where no loss or damage nant to insure 
 by fire has happened, and the breach has, in the opinion of the caser^'^imp. 
 Court, been committed through accident or mistake, or other- Act, 22-23 v. 
 wise without fraud or gfo.ss negligence, and there is an insur- '^' ' *' 
 ance on foot at the time of the applicntion to the Court in con- 
 formity with the covenant to insure, upon such terms as to the 
 Court may seem fit. 58 V. c. 12, s. 26. 
 
 J{ 1 . The Court, where relief is granted, shall direct a record When relief is 
 of such relief having been granted to be made by indorsement fam"e to'be re- 
 on the lease or otherwise. 58 V. c. 12, s. 27. corded, imp. 
 
 Act, 22-23 V. 
 c 35 s. 6. 
 
 32. The preceding two sections shall be applicable in the To what 
 case of leases for a term of years absolute, or determinable on leases preced 
 
 ing provisions 
 
 •P^ 
 
 < 
 
 ■pi 
 
 'it ' 
 
IT 
 
 172 
 
 Sec. 36. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 Jurisdiction 
 in partition. 
 
 Rev. Stat, 
 c. 123. 
 
 Jurisdiction 
 in alimony. 
 
 'ippiy- injP- a life or lives or otherwise, and also in the case of a lease for 
 c.*86, B. 9. ' the life of the lessee or the life or lives of any other person or 
 persons. 58 V. c. 12, s. 28. 
 
 33. In any action or proceeding in the High Court for par- 
 tition or sale of the estate of joint tenants, tenants in common 
 or co-partners, where any of the persons interested in the 
 lands whereof partition or sale is sought are unknown to the 
 plaintiff, or have not been heard of for three years or upwards, 
 the Court shall have the same jurisdiction that, in proceedings 
 under The Partition Act, it possesses for the purpose of bind- 
 ing the interests of such persons and dealing with the estate 
 of such of them as by reason of long continued absence may 
 reasonably be believed to be dead ; and the like proceedings may 
 be taken in such action oi' [iroceeding for the said purposes as 
 might be taken upon a petition under the said Act ; and every 
 deed or vesting order made in any such action or proceeding 
 shall have the same effect as a deed or vesting order made in 
 pi'oceedings under the said Act. 58 V. c. 12, s. 29. 
 
 34. The High Court shall have jurisdiction to grant ali- 
 mony to any wife who would be entitled to alimony by the 
 law of England, or to any wife who would be entitled by the 
 law of England to a div(^rce and to alimony as incident thereto, 
 or to any wife whose husband lives separate from her without 
 any sufficient cause and under circumstances which would 
 entitle her, by the law of England, to a decree for restitution 
 of conjugal rights; and alimony when granted shall continue 
 until the further order of the Court. 58 V. c. 12, s. 30. 
 
 Judgment for ;{5. An order or judgment for alimony may be registered 
 beTegirtei'ecl ^^ a,ny Registry Office in Ontario, and the registration shall, so 
 and thus bind long as the order or judgment registered remains in force, bind 
 *° *' the estate and interest of every description which the defendant 
 
 has in any lands in the County or Counties where the registra- 
 tion is made, and operate thereon in the same manner and 
 with the same effect as the registration of a charge by the 
 defendant of a lite annuity on his lands. 58 V. c. 12, s. 31. 
 
 Vestlnsorder, 3U. In every case in which the Court has authority to order 
 the execution of a deed, conveyance, transfer or assignment of 
 any property, real or personal, the Court may by order vest 
 such real or personal estate in such person or persons, and in 
 such manner, and for such estates, as would be done by any 
 such deed, conveyance, assignment or transfer if executed ; and 
 thereupon the order shall have the same effect as if the legal 
 or other estate or intei'est in the property had been actually 
 conveyed, by deed or otherwi.se, for the same estate or interest, 
 to the person in whom the same is so ordered to be vested, or 
 in the case of a chose in action, as if such chose in action had 
 been actually assigned to such last-mentioned person. 58 V. 
 c. 12, s. 32. 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 37. 
 
 173 
 
 31. The High Court shall have the dame jurisdiction Jurisdiction of 
 as the Court of Chancery in England had on the eighteenth "I'J^^^J*'" 
 day of March, 1865, in regard to enabling infants, with the Bettlement ot 
 approbation of the Court, to make binding settlements of their fnfa^g°an(i 
 real and personal estate on marriage ; and in regard to ques- special 'oaaei-. 
 tions submitted for the opinion of the Court in the form of 
 special cases on the part of such persons, as may by themselves, 
 their committees or guardians, or otherwise, concur therein. 
 58 V. c. 12, 8. 33 (1). 
 
 38. The High Court shall have jurisdiction to try the The Court 
 validity of last wills and testaments, whether the same respect ^*fdity of *^ 
 real or personal estate, and whether probate of the will has wills, 
 been granted or not, and to pronounce such wills and testa- 
 ments to be void for fraud and undue influence or otherwise, 
 in the same manner and to the same extent as the Court has 
 jurisdiction to try the validity of deeds and other instruments. 
 58 V. c. 12, s. 34 
 
 30. — (1) The High Court may remove an executor or ad- H°^h''c°* 
 ministrator upon the same grounds as such Court may remove as'to removal 
 any other trustee, and may appoint some other proper person of executor or 
 or persons to act in the place of the executor or administrator """ 
 so removed. 
 
 (2) The order may be made upon the application of any 
 executor or administrator desiring to be relieved from the 
 duties of the office, or of any executor or administrator com- 
 plaining of the conduct of a co-executor or co-administrator, 
 or of any person interested in the estate of the deceased. 
 
 (3) Subject to any rules to be made under this Act the 
 practice in force for the removal of any other trustee shall be 
 applicable to proceedings to betaken in the High Court under 
 this section. 
 
 (4) Where the executor or administrator removed is not a 
 sole executor or administrator the Court need not, unless it 
 sees fit, appoint any person to act in the room of the person 
 removed, and if no such appointment is made the rights and 
 estate of the executor or administrator removed shall pass to 
 the remaining executor or administrator as if the person so 
 removed had died. 
 
 (.5) The executor of any person appointed an executor under Executor of 
 this section shall not by virtue of such executoi'ship be an exe- *" e'^eowto''. 
 cutor of the estate of which his testator was appointed 
 executor u ^3r this section, whether such person acted alone 
 or was the last survivor of several executors. 
 
 (6) A certified copy of the order of removal shall be filed Order for 
 with the Surrogate Clerk and another cojiy with the Registrar removal, 
 of the Surrogate Court by which probate or administration 
 was granted, and such officers shall, at or upon the entry of the 
 
 :' 
 
Wv 
 
 ■ ji^W'-.lJ". 
 
 174 
 
 Sec. 43. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 "■•♦^r* 
 
 grant in the registor.s in their r^jpective office.s, make in red 
 ink a short note giving the date and effect of the order, and 
 shall also make a reference thereto in the index of the register 
 at the place where such grant is indexed. 59 V. c. 18, s. 4. 
 
 .InriMiiotion. 40. The High Court shall also have jurisdiction — 
 
 In matters 
 testamentary 
 Rbv. .Stat. 
 c. 69. 
 
 Appeals 
 against judg- 
 ment of com- 
 missioners 
 under Rev. 
 Stat. c. 33. 
 Lunatics and 
 infants . 
 Bev. Stats. 
 CO. 65 and 168. 
 
 Testamentary 
 guak'dians. 
 Rev. Stat, 
 c. 168. 
 Partition. 
 Rev. Stat. 
 c. 123. 
 
 Settled 
 
 Estates. 
 
 Rev. Stat. 
 
 0.71. 
 
 General 
 
 jurisdiction. 
 
 1. In matters testamentary as provided in sections 33 to 3.5 
 inclusive of The Surrogate Courts Act. 
 
 2. On any appeal from the judgment or decision of the 
 Commissioners under Tke Act to Prevent Trespasses to Public 
 Lands, as provided in the said Act. 
 
 3. In respect of lunatics and infants and their property and 
 estates, as provided by The Act respecting Lunatics and The 
 Act respecting Infants. 
 
 4. In respect of guardians and trustees, as provided by The 
 
 Act respecting Infants. 
 
 5. In respect of partition and sale of real estate as provided 
 in The Partition Act. 58 V. c. 12, s. 35. 
 
 6. In respect of leases and sales of settled estates, as pro- 
 vided in The Settled Estates Act. 58 V. c. 20, s. 2 (5). 
 
 41. The High Court shall have, generally, all the jurisdic- 
 tion which, prior to the 22nd day of August, 1881, was vested 
 in, or capable of being exercised by, the Court of Queen's 
 Bench, Court of Chancery, Court of Common Pleas, and Courts 
 of Assize, Oyer and Terminer, and Gaol Delivery (whether 
 created by Commission d\c otherwise) and the High Court shall 
 be deemed to be and shall be a continuation of the said Courts 
 respectively (subject to the provisions of this Act) under the 
 said name of " The High Court of Justice for Ontario." 68 V. 
 c. 12, s. 36. 
 
 4*i. The jurisdiction of the High Court shall include (sub- 
 ject to the exceptions hereinafter contained) the jurisdiction 
 which at the commencement of this Act, was vested in or 
 capable of being exercised l)y the Judges of the said Courts 
 respectively, sitting in Court or Chambers, or elsewhere, when 
 acting as Judges in pursuance of any statute or law ; and all 
 powers given to any such Court, or to any such Judges, by 
 any statute ; and also all ministerial powers, duties and 
 authorities, incident to any and every part of the jurisdiction. 
 58 V. c. 12, s. 37. 
 
 Rights and 43. Every Judge of the High Court shall have, use and 
 
 Judges!*^''" exeicisH all the rights, incidents and privileges 'of a Judge of a 
 
 Court of Record and all other rights, incidents and privileges 
 
 Existing juris' 
 diction of 
 Judges con- 
 tinued. 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 43. 
 
 175 
 
 as fully to all intents and purposes as the same were, prior to 
 the fifth (lay of December, 1859, used, exercised or enjoyed by 
 any of the Judo^es of any of Her Majesty's Superior Courts of 
 Common Law at Westminster. 58 V. c. 12, s. 38. 
 
 44. The Judj^es of the High Court shall, in rotation or A-V/^^Ke totit 
 otherwise, as they may agree among themselves, sit in Cham- "* ""' ''"' 
 bers or elsewhere, and there transact any such business as may 
 be transacted by a single Judge out of Court, whether such 
 business be in the Division of the High Court to which such 
 Judge is attached or in another Division, subject to the right 
 of appeal as providea in this Act and the Rules from time to 
 time in force. 58 V. c. 12, s. 39. 
 
 45. Any person sitting or acting as Judge at any Assizes Anyone while 
 or sittings of the High Court for the trial of causes, matters, Judge of Ak- 
 and issues, in the City of Toronto, may; while so sitting or *"'=«'' '"To- 
 acting as such Judge, or while the Assizes or sittings last, act as Judg^in"^ 
 as a Judge in Chambers in all matters as if he were a Judge Chambers. 
 of the High Court. 58 V. c. 12, s. 40. 
 
 
 „>«" 
 .«••' 
 
 4fi. Any person acting as a Judge at any Assizes or sittings 
 of the High Court for the trial of causes, matters and issues, 
 may, in and for the County in which he is acting, and while 
 the sittings of the said Court last, act as a Judge in Chambers 
 in all matters entered for trial before him, as if he were a 
 Judge of the High Court. 58 V. c. 12, s. 41. 
 
 Anyone sit- 
 ting as Judge 
 uf Assize may 
 during sit- 
 tings act as 
 Judge in 
 Chambers. 
 
 41. The several jurisdictions vested in the said High Court, Jurisdiction 
 shall not be exercised except in the name of the said High *? ''5 fj'®'"' 
 
 ..r __o cised in name 
 
 Court as provided by this Act, save as otherwise in this Act of High Court, 
 provided. 58 V. c. 12, s. 42. 
 
 48, The jurisdiction of the High Court of Justice and the Junsdiction 
 Court of Appeal, respectively, shall be exercised (so fai* as cised accord - 
 regards procedure and practice) in the manner provided by ing to rules 
 this Act, or by Rules and Orders of Court now in force or to be Court, 
 made pursuant to this Act ; and where no special provisions 
 are contained in this Act or in any such Rules or Orders with 
 reference thereto, it shall be exercised as nearly as may be in 
 the same manner as prior to the 22nd day of August, 1881. 
 58 V. c. 12, s. 43. 
 
 mi '' 
 
 r; - 
 
 '■• 
 
 Z' ■?• 
 
 JURISDICTION OF THE COURT OF APPEAL. 
 
 4J>. The Court of Appeal shall be a Superior Court of Juri-dicti.-n 
 Record and shall have ai)pellate jurisdiction in civil and ^p^'^P "^ 
 criminal cases ; and in civil ca.ses shall have jurisdiction and 
 power to hear and determine appeals from any judgment or 
 order, .save as hereinafter mentioned, of the High Court, or of 
 any Ju Iges there jf, subject to the provision-i of this Act, and 
 to such Rules and Orders of Court for regulating the terms and 
 
f " 
 
 176 
 
 Sec. 56. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 conditions on which appeals shall be allowed, as are now in 
 force or may be made pursuant to this Act. 58 V. c. 12, s. 44. 
 
 50. The Court of Appeal shall also have jurisdiction as 
 provided by The Ontario Voters' Lists Act, The Ontario Elcc- 
 
 //i'/Tn /I/./ at\A Tito r)'nfnm"irt nnvtivniw/ftp/J. Klcpf/i/vna Aft KS V 
 
 Additional 
 jurisdiction. 
 
 tc!?, g'andii. ^*o^ ^c< aiid The Ontario Controverted Elections Act. 
 c. 12, s. 45. 
 
 58 V. 
 
 May quash 
 proceedings : 
 when. 
 
 5 1 . The Court of Appeal shall have power to quash pro- 
 ceedings in cases brought before it, in which appeal does not 
 lie, or where such proceedings are taken against good faith. 
 58 V. c. 12, s. 46. 
 
 To make 
 whatever 
 order may be 
 required. 
 
 Powers of 
 Court ot 
 Appeal. 
 
 Power of a 
 single Judge 
 in Court of 
 Appeal. 
 
 On an appeal 
 Court ot Ap- 
 peal to have 
 all powers of 
 High Court. 
 
 Jurisdiction 
 subject to 
 rules, etc. 
 
 5?5. The Court of Appeal shall have power to dismiss an 
 appeal, or give any judgment and make any decree or order 
 which ought to have been made, and to direct the issue of any 
 process, or the taking of any proceedings in the Court below, 
 or to award restitution and payment of costs, or to make such 
 further or other order as the case may require. 58 V. c, 12, 
 s. 47. 
 
 53. The powers of the Court of Appeal may be exercised, 
 notwithstanding that the ap~»eal is brought against part only 
 of the judgment of the Court below ; and may be exercised 
 in favor of all or any of the respondents or parties, although 
 such respondents or parties may not have appealed from, or 
 complained of the judgment. 58 V. c. 12, s. 48. 
 
 54. In any cause or matter pending before the Court of 
 Appeal any direction incidental thereto, not involving the 
 decision of the appeal, may be given by a single Judge of the 
 Court of Appeal : and a single Judge of the Court of Appeal 
 may at any time during vacation make any interim order to 
 prevent prejudice to the claims of any parties pending an 
 appeal, as he may think fit ; but every such order made by a 
 single Judge may be discharged or varied by the Court of 
 Appeal or a Divisional Court thereof. 58 V. c. 12, s. 49. 
 
 55. For all the purposes of and incidental to the hearing 
 and determination of any such appeal, and the amendment, 
 execution, and enforcement of any judgment or order made on 
 such appeal, and for the purpose of every other authority 
 given to the Court of Appeal by this Act, the said Court of 
 Appeal shall have all the power, authority and jurisdiction by 
 this Act vested in the High Court. 58 V. c. 12, s, 50. 
 
 5<». The jurisdiction and power of the Court of Appeal, in 
 respect of the said matters and all others, shall be and are 
 subject to the provisions of this Act, and to such Rules and 
 Orders of Court for regulating the terms and conditions on 
 which such appeals .shall be allowed as are now in force or as 
 may be made pursuant to this Act. 58 V. c. 12, s. 51. 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 57. 
 
 177 
 
 itv 
 
 (')f 
 
 as 
 
 RULES OF LAW. 
 
 51. In every civil cause or matter commenced in the High ^'^^.*"£ . 
 Court of Justice, law and equity shall be administered by the concurrently 
 Hij^h Court and the Court of Appeal lespectively according to administered, 
 the rules following : 
 
 1. If any plaintiff" or petitioner claims to be entitled to Equitable 
 
 any equitable estate or right, or to relief upon any 
 equitable ground against any deed, instrument or 
 contract, or against any right, title or claim what- 
 soever asserted by any defendant or respondent in 
 such cause or matter, or to any relief founded upon 
 a legal right which heretofore could only have been 
 given by a Court of Equity, the said Courts respect- 
 ively, and every Judge thereof shall give to such 
 plaintiff" or petitioner such and the same relief as 
 ought to have been given by the Court of Chancery 
 in a suit or proceedings for the same or the like 
 purposes properly instituted before the passing of 
 The Ontario Judicature A ct, 1881. 44 v. c. 5. 
 
 2. The High Court shall have jurisdiction to entertain an jurisdiction 
 
 action at the instance of either the Attorney- ^« *" validitjy 
 
 General for the Dominion, or the Attorney-General °tatn?e.'" 
 
 of this Province for a declaration as to the validity 
 
 of any statute, or any provision in any statute of 
 
 this Legislatui e, though no further relief should be 
 
 prayed or sought ; and the action .shall be deemed 
 
 sufficiently constituted if the two officei's aforesaid 
 
 are parties thereto. A judgr ent in the action shall 
 
 be appealable like other judgments of the said 
 
 court. 
 
 .3. Subject to appeal as in other cases, the High Court Relief against 
 shall have power to relieve against all penalties •'™'* "^"' *^ '^' 
 and forfeitures, and in granting such relief to 
 impose such terms as to costs, expenses, damages, 
 compensation and all other matters as the Court 
 thinks fit. 
 
 4. No appointment, which after the 25th day of March, Appointment 
 1886, is made in exercise of a power to appoint any "'"''''^ power, 
 property, real or personal, among several objects, 
 shall be adjudged to be invalid on the ground 
 that anj' object of the power has been altogether 
 excluded, and an appointment shall be valid and 
 eff'ectual notwitl\standing that one or more of the 
 objects shall not thereby or in default of appoint- 
 ment take a share or shares of the pro[)erty which 
 is subject to the power. 
 
 But nothing in this subsection shall prejudice or aff'ect 
 any provision in any deed, will or other instrument 
 creating a power, which shall declare the amount 
 M 
 
 O 
 
 ^: 
 
178 
 
 Sec. 57. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 Ueclaratury 
 jiTigments 
 and orders. 
 
 Equitable 
 deiencoa. 
 
 44 V. c. 5. 
 
 Relif f which 
 may be 
 granted to 
 defendants. 
 
 or the shave or .shares from which no object of the 
 power shall be excluded, or shall declare some one 
 or more object or objects of the power who shall 
 not be excluded. 
 
 5. No action or proceeding .shall be open to objection on 
 
 the ground that a merely declaratory judgment or 
 order is sought thereby, and the Court may make 
 binding declarations of right, whether any conse- 
 quential relief is or could be claimed or not. 
 
 6. If any defendant claims to be entitled to any equit- 
 
 able estate or right, or to relief upon any equitable 
 ground against any deed, instrument or contract, 
 or against any right, title or claim asserted by any 
 plaintitt" or petitioner in such cause or matter, or 
 alleges any ground of equitable defence to any claim 
 of the plaintiff or petitioner in such cause or matter, 
 the said Courts respectively, and every Judge 
 ^ thereof, shall give to every equitable estate, right 
 or ground of relief .so claimed, and to every equit- 
 able defence so alleged, such and the same effect, 
 by way of defence against the claim of such plain- 
 tiff or petitioner, as the Court of Chanceiy ought 
 to have given if the same or the like matters had 
 been relied on by way of defence in any suit or 
 proceedings instituted in that Court for the same 
 or the like purposes before the passing of The 
 Ontario Judicature Act, ?.W/. 
 
 7. The said Courts respectively, and every Judge thereof, 
 
 shall also have power to grant to any defendant 
 in respect of any equitable estate or right or 
 other matter of eijuit}', and also in respect of any 
 legal estate, right or title claimed or as.serted by 
 him, all such relief against any plaintiff or 
 petitioner as such defendant shall have properly 
 claimed by his pleading, and as the said Courts 
 respectively, or any Judge thereof, might have 
 granted in any suit instituted for that purpose 
 by the same defendant against the same plaintiff 
 or ]ietitioner ; and al.so all such relief relating to or 
 connected with the original subject of the cause or 
 matter, and in like manner claimed against any 
 other person, whether already a party to the same 
 cause or matter or not, who shall have been duly 
 served with notice in writing of .such claim pur- 
 suant to any rule of Court or any order of the 
 Court, as might properly have been granted against 
 such person if he had been made a defendant to a 
 cause <luly instituted by the same defendant for 
 the like purpose ; and every person served with 
 any such notice shall thenceforth be deemed a party 
 to .such caiise or matter, with the same rights in 
 
Chap. 51. 
 
 THE JUDICATUUE ACT. 
 
 Sec. 57. 
 
 179 
 
 respect of his defence against such claim as if he 
 had been duly sued in the ordinary way by such 
 defendant. 
 
 8. The said Couits respectively, and every Judge thereof Courts to take 
 
 shall recognize and take notice of all equitable Jabirrighti"' 
 estates, titles and rights, and all equitable duties and duties. 
 and liabilities appefvfing incidentally in the course 
 of any cause or matter, in the same manner in which 
 the Court of Chancery would have recognized and 
 taken notice of the same in any suit or proceedings 
 duly instituted therein before the passing of Trie 
 Ontario Judicature Act, 1881. 44 v. c. 6. 
 
 9. No cause or proceeding at any time pending in the Restraining 
 
 High Court of Justice or before the Court of Appeal P'o^eedingB. 
 shall be restrained by prohibition or injunction ; 
 but every matter of equity on which an injunction 
 against the prosecution of any such cause or pro- 
 ceeding might have been obtained, prior to The 
 Ontario Judicature Act, 1881, either uncondition- 
 ally or on any terms or conditions, may be relied on 
 by way of defence thereto ; 
 
 Provided always, that nothing in this Act contained shall 
 disable either of the said Courts from directing a 
 stay of proceedings in any cause or matter pending 
 before it, if it shall think fit : and any person, 
 whether a party or not to any such cause or matter, 
 who would have been entitled, prior to The Ontano 
 Judicature Act, 1881, to apply to any Court to 
 restrain the prosecution thereof, or who may be 
 entitled to enforce, by attachment or otherwise, any 
 judgment, decree, rule or order, contrary to which 
 all or any part of the proceedings in such cause or 
 matter may have been taken, shall be at liberty to 
 apply to the said Courts respectively, by motion in 
 a summary way, for a stay of proceedings in such 
 cause or matter either generally, or so far as may 
 be uecessaiy for the purposes of justice ; and the 
 Court shall thereupon make .such order as shall be 
 just. 
 
 10. If any action is brought in the High Court for any cause stay of pro- 
 
 of action for which any suit or action has been cfeding» if ao- 
 brought and is pending between the same parties <j^ugj'jg "p™j. 
 or their representatives in any place or country intf out of 
 out of Ontai'io, the Court or any Judge thereof may " *""■ 
 make an order to stay all proceedings in the High 
 Court until satisfactory proof is offered to the Court 
 or Judge that the suit or action so brought in such 
 other place or country out of Ontario is determined 
 or discontinued. 
 
 r - 
 
r-i 
 
 ISO 
 
 Givin« effect 
 to lef^at 
 claiinH. 
 
 Sec. 58. 
 
 11. 
 
 THE JUDICATURE ACT, 
 
 Chap. 51. 
 
 44 V. c. 5. 
 
 Multiplicity 
 of proceedingB 
 to be avoided. 
 All matters in 
 controversy to 
 be determined 
 in one pro- 
 ceedin((. 
 
 12. 
 
 Subject to the aforesaid provisions for giving effect to 
 equitable rights and other matters of equity in 
 manner aforesaid, and the other express provisions 
 of this Act, the said Courts respectively, and every 
 Judge thereof, shall recognize and give effect to 
 all legal claims and demands, and all estates, rights, 
 duties, obligations and liabilities existing by the 
 common law or created by any statute, in the 
 .same manner as the same would have been recog- 
 nized and given effect to prior to The Ontario 
 Judicature Act, 1881, by any of the Courts then 
 existing and whose jurisdiction is now vested in 
 the High Com-t. 
 
 The High Court of Justice and the Court of Appeal 
 respectively, in theexercise of the jurisdiction vested 
 in them by this Act in every cause or matter pend- 
 ing before them respectively, shall have power to 
 grant, and shall grant, either absolutely or on such 
 reasonable terms and conditions as to them shall 
 seem just, all such remedies whatsoever as any of 
 the parties thereto may appear to be entitled to in 
 respect of any and every legal or equitable claim 
 properly brought forward by them respectively in 
 such cause or matter ; so that, as far as possible, all 
 matters so in controver.sy between the said parties 
 respectively may be completely and finally deter- 
 mined, and all multiplicity of legal proceedings 
 concerning any of such matters avoided. 58 V, c. 
 12. s. 52 ; GO V. c. 15, Sched. A (64). 
 
 Rules of law 
 upon certain 
 points. 
 
 Statutes of 
 Limitation 
 not to applj' 
 to express 
 trusts. 
 
 Rev. Stat. 
 0. 129. 
 
 Equitable 
 waste. 
 
 Merffer. 
 
 58. The law to be administered in Ontario, as to the matters 
 next hei'einafter mentioned, shall be as follows : 
 
 1. Subject to the provisions of section 32 of The Trus- 
 
 tee Act, no claim of a cestui que trust against 
 his trustee for any property held on an express 
 trust, or in respect of any breach of such crust, 
 shall be held to be barred by any Statute of 
 Limitation.s. 58 V. c. 12, s, 53 (1) ; 59 V. c. 18, 
 Sched. (4). 
 
 2. An estate for life without impeachment of waste shall 
 
 not confer or be deemed to have conferred upon 
 the tenant for life any legal right to commit waste 
 of the description known as equitable waste, unless 
 an intention to cop*'"!r such right shall expressly 
 appear by the insti . ent creating such estate. 
 
 3. There shall not be any merger by operation of law 
 
 only of any estate, the beneficial interest in which 
 would not prior to The Ontario Judicature Act, 
 ISSl, have been deemed merged or extinguished in 
 equity. 
 
Chap. 51. 
 
 TUE JUDICATURE ACT. 
 
 Sec. 58. 
 
 181 
 
 4. A raortgaL'or entitled for the time beino; to the po.s8es- Actions for 
 
 . ° '^ • i !• ii i 1 ^'i PI 1 posseBsion of 
 
 sioa or receipt oi the rents and protits of any land fand by 
 as to which no notice of his intention to take pos- mortgagor, 
 session or to enter into receipt of the rents and 
 profits thereof shall have been given by the mort- 
 gagee, may sue for such possession, or sue or dis- 
 train for the recovery of such rents or profits, or 
 to prev3nt or recover damages in respect of any 
 trespass or other wrong relative thereto, in his own 
 name only, unless the cause of action arises upon a 
 lease or other contract made by him jointly with 
 any other person, and in that case he may sue or 
 distrain jointly with such other person. 58 V. 
 c 12, s. 53 {2-i). 
 
 5. Any absolute assignment, made on or after the 81st Assignments 
 
 day of December, 1897, by writing under the hand choses'fn*" 
 of the assignor (not purporting to be by way of action, 
 charge only) of any debt or other legal chose in 
 action of which express notice in writing shall have 
 been given to the debtor, trustee or other person 
 from whom the assignor would have been entitled 
 to receive or claim such debt or chose in action, 
 shall be effectual in law (subject to all equities 
 which would have been entitled to priority over 
 the ri<fht of the assigfuee if this section had not been 
 enacted) to pass and transfer the legal right to such 
 debt or chose in action from the date of such 
 notice and all legal and other remedies for the same 
 and the power to give a good discharge for the 
 same without the concurrence of the assignor. 
 60 V. c. 15, s. 5. 
 
 6. In case of an assignment of a debt or other chose In Where several 
 
 action, if the debtor, trustee or other person liable under^aflsign- 
 in respect of the debt or chose in action shall have ments of debts 
 had notice that such iissignment is disputed by the "' °^°^^^ "* 
 
 *7 
 
 ■:7 
 
 action. 
 
 assignor or any one claiming under him, or of any 
 other opposing or conflicting claims to such debt 
 or chose in action, he shall be entitled, if he thinks 
 fit, to call upon the several persons milking claim 
 thereto to interplead concerning the same, or he 
 may, if he thinks fit, pay the same into the High 
 Court under and in conformity with the provisions 
 of law for the relief of trustees. 
 
 7. Stipulations in contracts, as to time or otherwise, stipulations 
 which would not before the passing of Tlie Ontario °°* "* *h' 
 Judicature Act, 1881, have been deemed to be or oonuacts. 
 to have become of the essence of such contracts in a 44 V. c. 5. 
 Court of equity, shall receive in all Courts the 
 same construction and effect as they would, prior 
 to the passing of said Act, have received in equity. 
 
1S2 
 
 Sec. 58. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 
 Satiufaction of 
 obliKatiitn l>y 
 perfurniance 
 in part. 
 
 Injunctiooa 
 and receiverH. 
 
 Court may 
 award dam- 
 agee, etc. 
 
 Purchaser not 
 affected hy 
 irregularities 
 in ocdern of 
 Court. 
 
 Infants. 
 
 CasHg of 
 conflict not 
 alit-ady 
 meutioaed. 
 
 8. Part performance of an obligation, either before or 
 after a breach thereof, when express! \'^ accepted by 
 the creditor in satisfaction, or rendered in pursuance 
 of an agreement lor tliat purpose, though without 
 any new consideration, shall be held to extinguish 
 the obligation. 
 
 0. A mandamus or an injunction may be granted or a 
 i-eceiver appointed by an interlocutory order of the 
 Court, in all cases in which it shall appear to the 
 Court to be just or convenient that such order 
 should be made ; and any such order may be made 
 either unconditionally, or upon such terms and con- 
 ditions as the Court shall think just ; and if an in- 
 junction is asked, either before, or at, or after the 
 hearing of any cau.se or matter, to prevent any 
 threatened or apprehended waste or trespass, such 
 injunction may be granted, if the Court shall think 
 lit, whether the person against whom such injunc- 
 tion is sought is or is not in possession imder any 
 claim of title or otherwise, or (if out of possession) 
 does or does not claim a right to do the act 
 sought to be restrained under any color of title ; 
 and whether the estates claimed by both or by 
 either of the parties are legal or equitable, 
 
 10. In all cases in which the Court has jurisdiction to 
 
 entertain an application for an injunction against 
 a bi'each of any covenant, contract or agreement or 
 against the commission or continuance of any 
 wrongful act, or for the specific performance of any 
 covenant, contract, or agreement, the court, if it 
 thinks fit, may award damages to the party injured 
 either in addition to or in substitution for huch in- 
 junction or specific performance, and such damages 
 may be ascertained in such manner a-s the court 
 may direct, or the court may grant such other 
 relief as it may deem just. 
 
 11. An order of the Court under any statutor}-^ or other 
 
 jurisdiction shall not, as against a purchaser, 
 whether with or without notice be invalidated on 
 the ground of want of jurisdiction, or of want of 
 any concurrence, consent, notice or service. 
 
 12. In questions relating to the custod}' and education of 
 
 infants, the rules of equity shall prevail. 
 
 13. Generally in all matters not hereinbefore particularly 
 
 mentioned, in which there is anj' conflict or 
 variance between the rules of equity and i;he rules 
 of the common law with reference to the same 
 matter, the rules of equity .shall prevail. 58 V. c. 
 12, .s. 5;^ (5-12). 
 
Chap. 51. 
 
 THK .lUDICATURK ACT. 
 
 Sec. 59. 
 
 188 
 
 50. The several rules of law enacted and declared by this Kules of law 
 Act shall be in force and receive effect in all Courts whatsoever all Courts. 
 in Ontario, so far as the matters to which such rules relate 
 .shall be respectively cognizable by such Courts. 5H V. c. 12, s. 
 54. 
 
 CONSTITUTIONAL QUESTIONS. 
 
 00. — (1) When in any action or other proceeding, the NoticB to be 
 constitutional validity of any Act of the Parliament of Canada JJinj'gt"^ „{ 
 or of the Legislature of Ontario comes into question, the same Justice and 
 shall not be adjudged to be invalid until after notice thereof ^*''°''°^y'j 
 has been served on the Minister of Justice and the Attorney- Ontaiio before 
 General of Ontario, or at their offices respectively. any Act is 
 
 (2) The notice in such case shall be entitled in the cause ; '"^*'"'- 
 shall state what the Act or section of an Act is which is in 
 question, and the day on which the case or the raid question 
 
 is to be argued ; and shall give such other particulars as are 
 necessary to show the constitutional point proposed to be 
 argued. 
 
 (3) The notice shall be served six days before the day of 
 the argument unless a Judge authorizes a shorter notice. 
 
 (4) Upon every such question the said Minister of Justice 
 and the said Attorney-General shall be entitled as of right to 
 be heard, either in person or by counsel, notwithstanding that 
 the Crown is not a party to the action or proceeding. 58 V. c. 
 12, s. 55. 
 
 SITTINGS OF COURT AND DISTKIBUTION OF BUSINESS. 
 
 61. The legal year shall not be divided into terms so far as Abolition of 
 relates to the administration of justice ; and there shall not be tefms. 
 terms applicable to any sitting or business of the High Court, 
 or of any Conmiissioners to whom any jurisdiction may be 
 assigned under this Act, or of any Commissioners of Assize; but 
 in all cases in which, under the law existing prior to the 22nd 
 day of August, 1881, the terms into which the legal year was 
 divided were used as a measure for determining the time at or 
 within which any act was required to be done, the same may 
 continue to be referred to for the same or the like purpose, 
 unless and until provision is otherwise made by any lawful 
 authority. o8 V. c. 12, s. 56. 
 
 0*4. — (1) Subject to the Rules of Court, the High Court of SittinRsof 
 Justice, and the Court of Appeal, and the Judges thereof res- ^""'■'''• 
 pectively, or an}' such Commissioners as aforesaid', shall have 
 power to sit and act, at any time and at any place, for the 
 transaction of any part of the business of such Courts respec- 
 tively, or of such Judges or Commissioners, or for the discharge 
 of any duty which by any statute, or otherwise, is required to 
 be discharsred. 
 
 
 .3f - 
 
 P 
 
184 
 
 Sec. 67(1). 
 
 THE .lUDICATURK ACT. 
 
 Chap. 51. 
 
 it 
 
 'I 
 
 Where Divi- ^2) Subject to the precetlinf,' provi.sion the Divi.sional Sit- 
 to b^'held""^' tings of the High Court .shall hv held at the City of Toronto. 
 58 V. c. 12, 8. 57. 
 
 VaoatiuDB. 
 
 Cominissiona 
 of assize and 
 iither com- 
 iniasioiiii. 
 
 iili. The Lieutenant-Goveinor in Council may from time to 
 time, upon any report or recommendation of the council of 
 Judges of the Supreme Court hei-einaf'ter mentioned, make, 
 revoke or modify, orders regulating the vacations to be ob- 
 served by the High Court of Justice and the Court of Appeal, 
 and in the offices of the said Courts respectively ; and any 
 Order in Council made pursuant to this section shall, so long 
 a.s it continues in force, be of the same effect '^ if it were con- 
 tained in this Act; and Rule.s of Court ' bo made for 
 carrying the same into effect in the same er as if such 
 Order in Council were part of this Act. 58 v . e. 12, s. 58. 
 
 04. Commissions of assize or any other connnissions, either 
 general or special, may l)e Lssued, by the proper authority, 
 assign-ng to the persons to be theiein named, the duty of 
 trying and determining within any place or district specially 
 fixed for that purpose by such commission, any causes or 
 matters, or any questions or issues of fact or of law, or partly 
 of fact and partly of law, in any cause or matter, depending in 
 the said High Court ; or the exercise of any civil or criminal 
 jurisdiction capable of being exercised by the said High Court ; 
 and any commission so issued shall l)e of the same validity as 
 if it were enacted by the body of this Act ; and any Connais- 
 sioner or Commi...^ioners shall, when engaged in the exercise of 
 any jurisdiction so assigned to him or them, be deemed to con- 
 stitute a Court of the said High Court. 58 V. c. 12, s, 59. 
 
 BusinesH to be 
 disponed of by 
 one Judge as 
 far as 
 practicable. 
 
 Judgti not to 
 reserve ques- 
 tions. 
 
 65. — (1) Every action and proceeding in the High Court 
 and all business arising out of the pame, except as hereinafter 
 provided, shall, so far as is practicable and convenient, be 
 heard, determined, and disposed of, before a single Judge. 
 
 (2) A Judge sitting elsewhere than in a Divisional Court, is 
 to decide all questions coming properly before him, and is not 
 to reserve any case, or any point in a case, for the considera- 
 tion of a Divisional Court. 
 
 Judge to con- (3) In all such cases any Judge sitting in Court .shall be 
 court.* * deemed to constitute a Court. 58 V. c. 12, s. 60. 
 
 Business of 
 Divisional 
 Courts of the 
 High Court. 
 
 66. All business which may from time to time be so 
 ordered by Rules of Court shall be transacted and disposed of 
 by Divisional Courts of the High Court, which shall for that 
 purpose exercise all or any part of the jurisdiction of the said 
 "■ ■ ~ 58 V. c. 12. s. 61. 
 
 High Court 
 
 pertain mat- 61. — (1) Subject to Rules of Court, the following proceedings 
 
 heard before ^^^ matters shall be heard and determined before a Divisional 
 
 Divisional Court of the High Court : 
 
 Court. ^ 
 
Chap. 51. 
 
 THE JUDICaTUKE ACT. 
 
 Sec. 67 {!). 
 
 185 
 
 (a) Proceedings d'.rected by any statute to be taken before 
 the Court in which the deci.sion of the Court is 
 tinal. 
 
 (6) Cases of habeas corpus in which the Judge directs that 
 a motion for the writ, or the writ, bo made return- 
 able before a Divisional Court. 
 
 (c) Subject to section 76 any application for a new trial 
 in the High Court when the action has been tried 
 with a jury. 
 
 {d) Other cases where all parties agree to the same being 
 heai'd before a Divisional Court. 
 
 When statute 
 declareH deci- 
 sion of Court 
 to be final. 
 
 Habcat corpus 
 cases. 
 
 Aiiplioations 
 for new trials 
 in jury cases. 
 
 By agreement 
 of parties. 
 
 Miis section contained .shall be construed so as 
 nit the power of a single Judge to bear and 
 
 (2) Nothing in 
 to take away or 1 
 
 determine any su \ proceedings or matters in any case in 
 which he has herel 'u-e had|. 'wer to do so, or ,soas to require 
 any interlocutory pii i^edings therein heretofore taken before 
 a single Judge to be taken before a Divisional Court. 
 5,S V. c. 12, s. 62 ; c. 13, s. 12. 
 
 08. The Queen's Bench, Chancery, and Common Pleas Queen's 
 Divisions of the High Court shall not sit or give iudgnients as l^encb, Chan- 
 
 .»..•'», eery and Com- 
 
 not be Divisional Courts or mor Pleas 
 
 sucli Divisions 
 
 and 
 
 there shall not 
 
 UiviBioDB not 
 
 any of the said Divisions ; but the Divisional Courts shall be ^'' . ^ ^^ j^ 
 Divisional Courts of the High Court, without reference to the 
 
 said Divisions. 
 Sched. (5). 
 
 58 V. c. 12, s. 63 ; c. 13, s. 10 ; 59 V. c. 18, 
 
 <>•>. The Judges of the High Court or a majority of them, Sittings of 
 may from time to time pass such rules to regulate the sittings R'/'A'""*' 
 of the Divisional Court as ma}' be found neces.sary for the due 
 despatch of business ; provided always that there shall be at Proviso, 
 least a monthly sitting of such Ccmrt except during vacation. 
 60 V. c. 15, Sched. A (65). 
 
 TO. — (1) Every Divisional Court of the High Court shall Divisional 
 be composed of three Judges, unless from illness or other un- composed?^^ 
 avoidable cause a third Judge cannot be obtained, in which 
 case it may be composed of two members, provided that in 
 case of divided opinion upon any matter argued the same shall 
 at the election of either party be re-argued before a Court of 
 three members. 58 V. c. 12, s. 66 (1) ; c. 13, .s. 15, part ; 69 V. 
 c. 18. s. 10. 
 
 (2) No Judge shall sit as a Judge on the hearing of an No Judge to 
 appeal from any judgment or order made by himself ; but sub- f *o*m tu^own 
 ject to this provision every Judge of the High Court shall be judgment, 
 qualified and empowered to sit in any of such Divisional 
 
 Courts. 58 V. c. 12, s. 66 (2) ; c. 13, s. 15, part. 
 
 (3) The Judges of the High Court or a majoi'ity of them Judges to 
 may arrange in what order the Judges of the High Court shall J'nM^^'^'*" 
 hold the said sittings. 58 V. c. 12, s. 66 (3) ; c. 13, s. 16 (3). 
 
 
 
 
Ip^ 
 
 186 
 
 Sec. 73. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 
 V 
 
 
 (4) If no arrangement is made, or subject to any arrange- 
 ment so made, the presiding Judge shall whe.'ever practicable 
 be a President of one of the Divisions of the High Court ; 
 and the Presidents shall preside at the said monthly sittings 
 successively in order of their seniority ; and two other Judges 
 of the High Court ia rotation and in order of seniority shall 
 be associated with one of the said Presidents in holdintj everv 
 
 such sittings. 
 
 58 V. c. 12, s. 66 (4) ; c. 13, s. 16 (4). 
 
 (5) In the absence of a President of a Division the senior 
 Judge present shall preside. 58 V. c. 12, s. 66 (-5). 
 
 (6) Nothing in this Act is to be construed as preventing 
 any Judge from sitting in a Divisional Court in the absence 
 of the Judge whose turn it may be to sit ; and nothing in this 
 Act is to be construed as making irregular any sitting or any 
 proceeding thereat by reason of the Court not being constituted 
 as hereinbefore mentioned, provided that the sitting is held by 
 the proper number of Judges, not including the Judge from 
 whose judgment or order an appeal is heard. 
 
 (7) Where a Judge has heard a case in a Divisional Court 
 and is not present at the time of the judgment being delivered, 
 his written judgment may be read by one of the other Judges 
 of such Divisional Court, and shall have the same effect as if 
 he were present. 58 V. c. 12, s. 66 (6-'") ; c. 13, s. 16 (6, 7). 
 
 Arrangements 11. All such arrangements as may be necessary or proper 
 ofSness,'"" ^^^' ^^^^ holding of any of the Courts, or the transaction of 
 business, or assignment from time to time of Judges to hold 
 such Courts, or to transact such busines.s, shall be made by the 
 Judges of the High Court or a majority of them. 58 V. c. 12, 
 8.67. 
 
 APPEALS. 
 
 Certain 
 orders not 
 subject to 
 appeal. 
 
 7'i. No order made by the High Court or any Judge thereof, 
 by the consent of parties, or as to costs only which by law are 
 left to the discretion of the Court, shall be subject to any appea', 
 except by leave of the Court or Judge making such order. 
 58 V. c. i2, s. 68. 
 
 Appeal* from '^•'- There shall be no appeal to a Divisional Court from any 
 interlocutory interlocutory order, whetlier made in Court or Chambers, in 
 case prior to The Ontario Judicature Act, 1S81, thort) would 
 have been no relief from a like order by an application to a 
 Superior Court ; and theie shall be no appeal to the Coiu't of 
 Appeal from any interlocutory order in case prior to The 
 Ontario Judicature Act, 1881, thei-e would have been no relief 
 from a like order by an appeal to the Coiu't of Appeal. Any 
 doubt which may arise as to what orders, or judgments, are 
 interlocutory, shall be determined by the Court of Appeal. 
 58 V. c. 12,'s. 69. 
 
Cliap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 74. 
 
 187 
 
 T4. There shall not be more than one appeal in this Pro- Only one 
 vince from any judgment or order made in any action or allowed." 
 matter ; save only at the instance of the Crown in a case in 
 which the Crown is concerned ; and save in certain other cases 
 hereinafter specified. 58 V. c. 12, s. 70 ; c. 13, s. 2. 
 
 A2^peals to Divisional Courts. 
 
 la. Subject to sections 72 and 73 of this Act, an appeal 
 shall lie to a Divisional Court of the High Court, in the foUow- 
 
 Appeala to a 
 
 Divisional 
 
 Court. 
 
 Order of single 
 Judge. 
 
 Master in 
 Ordinary. 
 
 Under Rev. 
 Stat. c. .65 
 
 1. From any judgment or order of a Judge of the High 
 
 Court in Court, whether at the trial or otherwise ; 
 
 2. From the Master in Ordinary except as to decisions or 
 
 rulings upon questions of practice, or in his juris- 
 diction in Chambers ; 
 
 3. From County Courts, as provided in The County 
 
 Courts Act ; 
 
 4. From Surrogate Courts or a Surrogate Judge, as pro- Under Rev. 
 
 vided in The Surrocjatc Courts Act aud The J. c^ Stat. c. 59, 168. 
 respecting Infants ; 
 
 5. From Division Courts as provided in The Division 
 
 Courts Act ; 
 
 <3. From Provisional Judicial District Courts, as provided 
 in The Unorganized Territories Act ; 
 
 7. From Stipendiary Magistrates, as provided in section 
 
 71 of The Unorganized Territories Act ; 
 
 8. From a Judge of a County Court upon an appeal from 
 
 a conviction or order arising out of or under The 
 Liquor License Act, as provided in the said Act ; 
 
 9. From a Judge of a County Court, as provided in The 
 
 Act respecting Water Privileges ; 
 
 10. From a Judge of a County Court, or Stipendiary Magis- 
 
 trate, as provided in The Act for protecting the 
 Public Interest in Rivers, Streams, and Creeks. 
 58 V. c. 12, 8. 71 (3-11) ; c. 13, s. 11 (3-11) ; 59 V. 
 c. 18, 8. 3, Sched. (G) ; 60 V. c. 14, s. 88. 
 
 Appeals to the Court of Appeal. 
 
 TO. Subject to the exceptions and provisions contained in When appeal 
 this Act, an appeal shall lie to the Court of Appeal from every t" lie to Court 
 judgment, order or decision of the High Court whether the " 
 judgment, order or decision was that of a Divisional Court 
 or of a Judge in Court, and including cases tried with a juiy 
 where the appellant complains of the judgment and asks in 
 the alternative for a new trial. 58 V. c. 12, s. 72 ; 59 V. c. 18, 
 s. 13. 
 
 Under Rev. 
 Stat. 0. 60. 
 
 From District 
 Courts under 
 Rev. Stat, 
 c. 109. 
 Under Rev, 
 c. 109. 
 
 Under Rev. 
 Stat. c. 245. 
 
 Under Rev. 
 Stat. c. 141. 
 
 Under R«v. 
 Stat. c. 142. 
 
 
 
188 
 
 Sec. 78. 
 
 THE JUDICATURE ACT. 
 
 Cbap. 51. 
 
 
 
 Appeals from 
 
 Divisional 
 
 Court. 
 
 Party appeal- 
 ing to Divi- 
 sional Court 
 not to ap{)eal, 
 but other 
 parties may. 
 
 Appeal on 
 special leave 
 to Court of 
 Appeal. 
 
 Powers of 
 Court or 
 Jud^e on 
 applii 
 leave to 
 aproal. 
 
 Tl, — (1) An appeal shall not lie from any judgment or order 
 of a Divisional Court, except as hereinafter provided. 
 
 (2) In case a party appeals to a Divisional Court of the 
 High Court in a case in which an appeal lies to the Court of 
 Appeal, the party so appealing shall not be entitled to after- 
 wards appeal from the said Divisional Court to the Court of 
 Appeal, but any other party to the action or matter may 
 appeal to the Court of Appeal from the judgment or order of 
 the Divisional Court. 58 V. c. 12, s. 73 (1, 2) ; c. 13, s. 13 (1, 2). 
 
 (3) Except where an appeal lies under the preceding sub- 
 section from a Divisional Court to the Court of Appeal, an 
 appeal to the Court of Appeal shall not lie from a judgment 
 or order of a Divisional Court pronounced on an appeal in 
 a cause or matter in the High Court to such Divisional Court 
 except by .special leave first obtained upon an application to 
 such Divisional Court, or to the Court of Appeal or a Judge 
 thereof. 58 V. c. 12, s. 73 (3), part; c. 13, s. 13 (3), part ; 59 
 V. c. 18, Sched. (7). 
 
 (4) The granting or vdfusing of such leave shall be in the 
 discretion of the (>oui t or Judge applied to therefor, in view 
 
 xpplicati'on for of all the circumstances ; and in case of such leave being 
 granted, such terms and conditions may be imposed as the 
 Court or Judge sees fit ; but such leave shall not be granted 
 unless, besides being in the opinion of the Court or Judge a 
 proper case for the granting of the leave, the case falls within 
 one or more of the following cases, that is to say : — 
 
 (a) Where the matter in controversy on the proposed 
 appeal exceeds the sum or value of $1,000 exclusive 
 of costs, or involves indirectly or otherwise that 
 sum or value ; or 
 
 (h) Where such matter involves the validity of a patent ; or 
 
 (c) Where the judgment or order involves a question 
 
 of law or practice on which there have been con- 
 fiicting decisions or opinions by the High Court 
 of Juf-oice, or by Judges thereof ; or 
 
 (d) Where a judgment or orJer :« in regard to a matter of 
 
 practice, but aflfects the ultimate rights of parties 
 to the action to the extent of the said sum or value ; 
 or 
 
 (e) Where there are other sufficient special reasons for 
 
 treating the case as exceptional and allowing a 
 further appeal. 58 V. c. 12, s. 73 (4) ; c. 13, s. 1 3 (4). 
 
 Limitation of time for appealing. 
 
 Time within T8. Subject to the provisions of this Act all appeals form 
 fl^SuX^"*'" '^ .i"<?gment or order of the High Court shall be brought to 
 mentsmustbe hearing within one year from the date thereof, or within such. 
 
 brfiupht to a 
 hearing. 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 See. 78. 
 
 189 
 
 further time as tlie Court of Appeal or a Judge thereof, may 
 allow. 58 V. c. 12. s. 74. 
 
 79. If the appeal is from an interloci'tory order, then the Time within 
 appellant shall bring the same to a hearing within six months f^om interfoc^ 
 from the pronouncing of the same, or within such further ' tory orders 
 time as the Court of Appeal or a Judge thereof may allow, ibiought to a 
 
 58 V. C. 12. S. 75. hearmff. 
 
 80. The time limited for appealing from a judgment or Time to be 
 order, which does not become absolute upon the same being {^^ judgment 
 pronounced, shall be computed from the time when the same or order be- 
 does become absolute. 58 V. c. 12, .s. 76, part; 59 V. c. 18, f°t'^'"« *''"'• 
 Sched. (8). 
 
 I'J 
 
 EFFFXT OF JUDICIAL DECISION.S. 
 
 81. — (1) The decision of a Divisional Court of the Court of Decision of 
 Appeal on a question of law or practice shall, unless overruled Courto"* 
 or otherwise impugned by a higher Court, be binding on the Court of 
 Court of Appeal and all Divisional Courts thereof, as well as ^'bfn^din' 
 on all other Courts and Judges and shall not be departed from 
 in subsequent cases without the concurrence of the Judges 
 who gave the decision, unless and until .so overruled or 
 impugned. 
 
 (2) It shall not be competent ior the High Court or any Decision of 
 Judge thereof in any case arising before such Court or Jud^e co°ordinate 
 to disregard or depart from a prior known decision of any authority to 
 Court or Judge of co-ordinate authority on any question of ^^ i^md'nif- 
 law or practice without the concurrence of the Judges or Judge 
 who gave the decision ; but if a Court or Judge deems the 
 decision previously given to be wrong and of sufficient import- 
 ance to be considered in a higher Court, such Court or Judge 
 may refer the question to such higher Court. 58 V. c. 12, 
 s. 79 ; c. 13, s. 9. 
 
 kA. » 
 
 3 
 O 
 
 ■J 
 
 SITTINGS FOR TRIALS. 
 
 H'i. — (1) Subject to Rules of Court, as often in every year SittinRs for 
 as the due despatch of business and the public convenience *■"'"' "^ causes. 
 may require there shall be sittings of the High Court at every 
 County Town for the trial of causes, matters and issues, whether 
 legal or e(|uitable, in all Divisions of the High Court, which 
 are to be heard and determined by a Judge without a jury, 
 and also for the trial of causes, matters and Lssues in all Divi- 
 sions of the High Court which are to be tried with a jury, and 
 for the trial of criminal matters and proceedings ; and in case 
 such first mentioned sittings are appointed at any county town 
 for the same time and before th" same Judge as jury cases, 
 separate lists shall be made of the jury and non-jury cases, 
 and the jury cases shall be tirst disposed of, unless the Judge 
 sees fit to direct otherwise. 58 V. c. 12, .s. 80 (1). 
 
190 
 
 Sec. 86. 
 
 THE JUDICATURE ACT. 
 
 Chap. 5L 
 
 l" 
 
 SittiD^s in 
 each County 
 
 York. 
 
 Carleton, 
 
 Wentworth, 
 
 Middlesex. 
 
 Additional 
 sittings. 
 
 .Tudges m.ay 
 appoint sit- 
 tings in any 
 county for 
 issues to be 
 tried without 
 a jury. 
 
 Separate sit- 
 tings may bo 
 held for civil 
 and criminal 
 matters. 
 
 Place in 
 county towns 
 where Court 
 to be held. 
 
 (2) The Judges of the High Court of Ju.stice. or a majority 
 of them, shall appoint the days upon which such sittings shall 
 be held. 58 V. c. 12, s. 80 (2), part ; 59 V. c. 18, Sched. (9). 
 
 Hli. — (1) Subject to Rules of Court, not le.ss than two of 
 such .sittings shall be held at the County Town of every County 
 and Union of Counties in each year. 58 V. c. 12, s. 81 (1). 
 
 (2) In the County of York, there .shall in every year be held 
 at the County Town of such County not le.ss than three of such 
 sittings, and alwo a fourth such sittings, unless the same is not 
 required for the administration of ju.stice, but if the said 
 Judges, on enquiry, ascertain that such fourth sittings for any 
 year is not required for the administration of justice, it shall 
 not be necessary to hold the .same or to appoint a day for 
 holding the same. 58 V. c. 12, s. 81 (3) ; 59 V. c. 18, Sched. (11). 
 
 (3) In the Counties of Carleton, Wentworth and Middlesex, 
 there .shall, in e /ery year be held at the County Town of each 
 of the .said Counties not less than three of such sittings. 58 V. 
 c. 12, s. 81 (4). 
 
 (4) In addition to the regulai sittings to be held under sub- 
 section 1 of this section, a third such sittings may be appointed 
 if the Judges of the High Court, or a majority of them, shall 
 see fit for the trial of oivil causes, matters and issues and 
 criminal matters and proceedings, or of civil causes, matters 
 and Lssues only, to be held at the County Town of any County 
 in the Province. 58 V. c. 12, s. 81 (5) ; 59 V. c. 18, Sched. (12). 
 
 H4. The Judges of the High Court may appoint sittings of 
 the High Court in any Count}' in the Province, as often and 
 at .such times as they see fit, for the trial of causes which are 
 to be tried by a Judge without a jury. 58 V. c. 12, s. 82 ; 59 
 V. c- 18, Sched. (13). 
 
 85. The sittings of the High Court for the trial of civil 
 cau.ses, matters and issues in any County may, in the discretion 
 of the Judges appointing the days therefor, or of the Judge 
 who has been appointed to preside or is presiding thereat, be 
 held separate and apart from the sittings for the trial of 
 criminal matters and proceedings, eitljer on the .same day or on 
 a different day. 58 V. c. 12, s. 83. 
 
 HO. Such sittings may, at the discretion of the Court or of 
 the Judge who is to hold the same, be held in the court house 
 of the county town in which the same are appointed to be 
 held, or in such other place in the county town as the Judge 
 selects, and the Judge .shall in all respects have the .same 
 authority as a Judge formerly had when sitting at nisi prius 
 in regard to the u.se of the couit house, gaol and other bviild- 
 ingsor apartments set apart in the County for the administra- 
 tion of justice. 58 V. c. 12, ,s. 84. 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 87 (.1). 
 
 191 
 
 Ml. — (1) Such sittings shall be presided over by one of the Who may 
 Judges of the Supreme Court, or in the absence of any such P''^*"^®- 
 Judge by a retired Judge of the Supreme Court, or by a Judge 
 of any County Court in Ontario, or by one of Her Majesty's 
 Counsel learned in the law appointed for Upper Canada, or for 
 the Province of Ontario, upon such Judge or Counsel being 
 requested by a Judge of the Supreme Court to attend for 
 that purpose. 
 
 (2) Such Judge or Counsel while holding the sittings shall Powersof pre- 
 possess, exercise and enjoy all the powers and authorities of a "' '"^ " ^^' 
 Judge of the High Court, and in civil proceedings may reserve 
 the giving of his decision on questions raised at the trial, and 
 such decision shall have the like force and effect as the decision 
 of a Judge of the High Court. 58 V. c. 12, s. 85. 
 
 ^8. Where the Judge whose duty it is to hold any sittings Course to be 
 of tne High Court for the trial of civil causes, matters and thJ^erirf'^it 
 issues and for the trial of other matters and proceedings within the Judge 
 the jurisdiction of the Provincial Legislature, does not arrive ^'^-^ ""* 
 
 . • • ■ 1 1 1 1 r-t .IT • . 1 arrive on 
 
 in time, or is not able to open such Couj-t on the day appointed the day 
 for that imrpo.se, the sheriff of the County in which such Court appopted for 
 should be held, or, in his absence, his deputy, may, after the Court, 
 hour of six of the clock in the afternoon of such day, adjourn 
 by his proclamation, the Court which should have been opened 
 on that day, to an hour on the following day to be by him 
 named, and so from day to day until the Judge arrives to open 
 such Court, or until such sheriff receives other direction from 
 the Judge in that behalf. 58 V. c. 12, s. 86. 
 
 HO. — (1) No such sittings of the High Court for the trial of Sittings to 
 causes, matters and issues shall open earlier than one of the one'o'clock^n 
 clock in the nfternoon on the first day of the sittings, but the afternoon, 
 this shall not prevent a non-jury trial from being begun before 
 one of the clock with the consent of the parties. 58 V. 
 c. 12, s. 87 yl). 
 
 (2) No such sittings shall begin before nine o'clock in Houfh for 
 the forenoon, nor, except for speciil rea.sons, extend beyond *'**''°^^' 
 seven o'clock in the evening, with at least a half-hour's inter- 
 mission at or near noon. An irregularity under this section 
 .shall not render any trial or other proceeding void. 58 V. c. 
 12, s. 87 (2) ; c. 13, s. 19. 
 
 00. All non-jury actions in any County may be entered for Entering non- 
 trial at any sittings of the High Court in such County, except for^rial'""* 
 in the County of York. 58 V. c. 12, s. 88 ; c. 13, s. 17. 
 
 :7 
 
 i.-C' •* 
 
 S 
 
 «... 
 
 "■' W 
 
 \'i-i\i 
 
 01. At the sittings of the High Court or As-sizes in any 9'"{f.''' 
 county town there shall be a general docket in addition to the sittings of 
 docket of cases entered for trial, an<l such general docket may High Court 
 include all motions, petitions, proceedings and other matters °' 
 which may be heard by a Judge in Court or in chambers in 
 
 ■ '. J 
 
192 
 
 Sec. 94. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 any case where the solicitors con.sent, or where the matter 
 in controversy arose in the County or where the party opposing 
 or showing cause in the matter, or his solicitor, resides in the 
 County. Such general docket shall be disposed of after the 
 trial of causes. 58 V. c. 12, s. 89 ; c. 13, s. 18. 
 
 TRIAL OF HIGH COURT CASES IN COUNTY COURTS, AND 
 COUNTY COURT CASES BEFORE HIGH COURT. 
 
 Certain cases t>?J. — (1) All issues of fact and as.sessments of damages in 
 in Hipth Court the High Court relating to debt, covenant and contract, where 
 in\^ie County the amount is liquidated, or ascertained by the signature of 
 Uoujrt of the the defendant, may be tried and assessed in the County Court 
 which^'t "e of the County where the trial is to take place, if the plaintifi" 
 lenuc is laid, dcsires it, unless a Judge of the High Court otherwise orders, 
 and upon such terms as the Judge deems meet. 
 
 (2) In such case the action shall be entered for trial, notice 
 of trial shall be given, and the trial take place in the same 
 way as in ordinary cases in such County Court. 
 
 (3) In any action in the High Court, in which the amount 
 of the demand is ascertained by the signature of the defendant, 
 and in any action for any debt in which a Judge of the said 
 High Court is satisfied that the case may be properly tried in a 
 County Cour* any Judge of the High Court may order that 
 such case shall be tried in the County Court of the County 
 the count}' town of which is named as the place of trial, and 
 such action .shall be tried there accordingly, and the record 
 shall be made up as in other cases, and the order directing the 
 case to be tried in the County Court shall be left with the 
 clerk of the County Court on entering the action for trial, 
 annexed to the record ; and the trial shall take place in the 
 same way as in ordinary cases in such County Court. 58 V. 
 c. 12, s. 90. 
 
 9ii. — (1) By the order of a Judge of the High Court, made 
 
 County Court upon such terms as the Judge may consider just, the issues of 
 
 tHed at*&igh ^^^^ '^^'^ assessment of damages in any action pending in a 
 
 ( ;<.urt sittings County Court may be tried and assessed at the sittings of the 
 
 High Court at any county town, 
 
 (2) In such cases the action shall be entered and the case 
 tried as in ordinary cases. 58 V. c. 12, s. 91. 
 
 Towers of •^•^- Where any such cause is referred by the presiding 
 
 C'junty Court Judge at such sittings, the County Court in which the action 
 a erwards. jg brought, and the Judge thereof, shall have the same power 
 to enforce any award, report or certificate made on the refer- 
 ence, and to make rules and orders upon appeals therefrom 
 and motions relating thereto, as if the order referring the case 
 had been made by the County Judge. 58 V. c. 12, s. 92, 
 
 Certain cases 
 in the High 
 Court may be 
 tried at the 
 County Court 
 of the county 
 in wliich the 
 action is to 
 be tried. 
 
 Proceedings 
 in Huch case. 
 
 By order 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 95. 
 
 193 
 
 95. The Clerks of the several County Courts shall provide Books ..r 
 books in which the Judges presiding at the sittings of the o^tHal! etc."' 
 High Court, where cases brought in any County Court are 
 tried or assessed under this Act, may enter their notes of such 
 trials and assessments ; and such books, immediately after the 
 trials or assessments, shall be returned to the said Clerks and 
 shall remain in their offices. 58 V. c. 12, s. 93. 
 
 *>6. The jury fees and the fees and charges payable and ^^*"' '" 
 pertaining to officers of the County Courts, upon all actions or 
 proceedings brought in the County Courts and tried or as.sessed 
 in the High Court, shall be chargeable and paid as if the same 
 were being tried or assessed in the County Courts ; and no 
 other fees shall be chargeable thereon, and the Clerk of a 
 County Court shall be entitled to receive and take such part 
 thereof as pertains to him, to his own use. 58 V. c. 12, s. 94. 
 
 
 CERTIFICATE OF LIS PENDENS. 
 
 JH. The instituting of an action or the taking of a proceed- ■'^<i*'°°>.®''°' 
 iiig, in which action or proceeding any title or interest in land less certificate 
 is brought in question, shall not be deemed notice of the action registered, 
 or proceeding to any person not being a party thereto, until in 
 oases where the land is registered under The Land T'ltlts Act f'^isjj^*'*'" 
 a caution is registered under that Act nor in other cases until a 
 curiiticate, signed by the proper officer of the Court, has been 
 registered in the Registry Office of the Registry Division in 
 which the land is .situate, which certificate may be in the 
 following form:— 
 
 " 1 certify tliiit in an action or jiroceeding in the High Court, between F"""- 
 A. B., of anil C. />., of some title or interest is cHllod in 
 
 ([uestiou in the following land (di'scrihiufj it,)" 
 
 Dated at {utatiny date and place.) 
 
 But no certificate shall be recjuired to be registered in any provis.). 
 action or proceeding for foreclosure or sale upon a registered 
 mortgage. 
 
 56 V. c. 21, s. 53. 
 
 9H. — (1) Where a cei'titicate of lis pendens has been Order vacat- 
 rugistered, and the plaintirt", or other party at whose instance inifiispe'^cns 
 the certificate was issued, does not in good faith prosecute the proseciitkin of 
 litigation, the Court or Judge may at any time during the action, 
 litigation make an order vacating the certificate of lis pendens. 
 53 V. c. 33, s. 1. 
 
 (•.::) Where a certificate of lis pendens has been registered, 9''^^'" "''i*,''.® 
 . . ~ ' clfli^n not lini' 
 
 and the plaintiff's claim is not solel}^ to recover the land, or the ited to land. 
 
 estate or interest thev'>in, but is to recover a sum of monej' 
 
 or money's worth which is chai'geable on or payable out of the 
 
 land, or some estate or interest therein, oi- foi' which he claims 
 
 that the land or such estate or interest therein ought to be 
 
 subjected to payment, or where the plaintiff claims the land or 
 
 some interest in land, and, in the alternative, damages or 
 
 compensation in money or money's worth, the Court or a 
 
 N. 
 
 
 
 W6 * 
 
 
 
• W'^ 
 
 19-t 
 
 Sec. 102. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 Upon other 
 ((rounds. 
 
 CoBtH. 
 
 Appeal from 
 order. 
 
 Regristration 
 of order. 
 
 Judge may at niiy time during the litigation make an oi'der 
 vacating the certificate of lis pendens, upon such terms as to 
 giving security or otherwise as may be deemed jusit. 53 V. 
 c. 33, s. 2. 
 
 (3) The Court or Judge may at any time annul the registra- 
 tion upon any other just ground. 58 V. c. 33, s. 3. 
 
 (4) On application under this section, the Court or Judge 
 may order any of the parties to the application to pay the 
 costs of any of the other parties thereto, or may make any 
 other order with I'ospect to costs, as under all the circum- 
 stances may ajipear to hiin just. 53 V. c. 3:^, s. 4. 
 
 WW. Thi' order for vacating or ainiulling a certificate of lis 
 pendens shall be subject to appeal according to the practice of 
 the High Coux't in like cases, and may be registered in the 
 same manner as judgments and other orders affecting lands are 
 retristered, such registration to be on or after the fourteenth 
 day from the date of the order, unless a Judge of the High 
 Court reverees the order meanwhile, or postpones or forbids 
 the registration. 53 V. c. 33, s. 5. 
 
 
 pendens. 
 
 Effect of 100. Where a certificate of lis pendens is vacated, any 
 
 vacftting lis person may deal in respect to the land, as fully as if such lis 
 pendens had not been registered, and it shall not be incumbent 
 on any purchaser or mortgagee to enquire as to the facts 
 alleged in the suit, and the rights of such purchaser or 
 mortgagee shall not be aftectetl by his lieing aware that the 
 allegations made in the suit were in fact made. 53 V. c. 33, s. (5. 
 
 ASSKSSOHS 
 
 Assessors. 
 
 Remunera- 
 tion. 
 
 101. — (1) The High Court, or any Divisional Court or 
 Judge before whom any cause or matter may be pending, or 
 the Court of Appeal, may, in a,ny cause or matter in which 
 it thinks it expedient so to do, call in the aid of one or more 
 assessors specially (jiialilied, and try and hear such cause or 
 matter ,/holly or partially with the assistance of such 
 assessors. 
 
 (2) The remuneration, if any, to be paid to such assessors 
 shall be determined by the Court. 58 V. c. 12, s. 105 (2, 3); 
 GO V. c. IG, Sched. D, part. 
 
 Certain 
 actions for 
 torts to be 
 tried by a 
 
 Jury. 
 
 TRIAL, TROCEDURE AND PLACE OF TRIAL. 
 
 102. In actions of libel, .slander, criminal conversation, 
 seduction, malicious arrest, malicious prosecution and false 
 imprisonment, all questions which might prior to The Ad- 
 ministrdtio)) of Justice Act, 1873, have l)een tried by a jury, 
 shall be tried by a jury, unless the parties in person or by 
 their solicitors or counsel, waive such trial. 58 V. c. 12, 
 s. 109. 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 103. 
 
 19.5 
 
 lOS. Subject to Rules of Court, all causes, matters and Casei. formerly 
 issues, over the suViject of which prior to The Administration Exclusive 
 of Justice Act of 1873, the Court of Chancery had exclusive jurisdiction of 
 jurisdiction, shall be tried without a jury, unless otherwise p^an* ''^^ 
 ordered. 58 V. c. 12, s. 110. ^' 
 
 1 04. All actions asrainst municipal corporations tor damages Certain ac- 
 ,,.... ° i. • J i I 1 • i! i 4. *'0"8 against 
 
 m respect ot injuries sustained through non-repair or streets, municipalities 
 
 roads or sidewalks, shall be tried by a Judge without a jury, t<'.*J«^t"ed 
 
 •^ '' , . J .J ' without a 
 
 rv and ve 
 
 to be loca 
 
 and the trial shall take place in the County in which the jury and venue 
 
 road, street or sidewalk is situated. 59 V. c. 18, s. 5, 
 
 105. Subject to Rules of Court, all causes, matters and Other issues 
 issues other than as aforesaid, and the assessment or enquiry of a",^*^*"^'' 
 damages therein may, and (subject to the provisions of section assessed by* 
 110) in the absence of such notice as in the next section men- judge alone 
 tioned shall be heard, tried and assessed by a Judge without a notfrie ''"'^^ 
 jury. 58 V. c. 12, s. Ill (1). 
 
 ' given. 
 
 100. If any of the parties desires the issues of fact to be Unless jury 
 tried or damages to be a.ssessed or enquired of by a jury, he shall notice given 
 at any stage of the proceedings but not later than the fourth judge other- 
 day after the close of the pleadings, or in case notice of trial is wise directs, 
 served before that time, then within two days after service 
 of notice of trial, or within such other time as may be ordered 
 by the Court or a Judge, tile and serve on the opposite pai-ty a 
 notice in writing requiring that the issues should be tried, or 
 the damages assessed by a jury, and a copy of the notice 
 shall be attached to the record or certified copy of the plead- 
 ings prepared for the Judge. 58 V. c. 12, s. Ill (2); 59 V. 
 c.l8, Sched. (17). 
 
 lOT. — (1) Where any one of the parties has given such Effect of 
 notice requiring: a jury, the issues of fact shall (subject notice reqiur- 
 to the provisions of .section 110) be tried and determined or 
 the damages assessed by the verdict of jurors duly sworn 
 for the trial of such issues or for the assessment of such 
 damages. 
 
 (2) The parties present at the trial may consent that the Parties may 
 said notice requiring a jury shall be vvaived,and the case tried waive notice, 
 and damages assessed by the Judge, and may endorse a memo- 
 randum of such consent upon the record, and thereupon the 
 judge may try the issues or assess the damages without a 
 jury. 58 V. c. 12, s. 112 (1, 2). 
 
 108. — (1) In all civil cases in the High Court of Justice Agreement of 
 
 _ • n J. /-" i. • ij. -i.!.- ii ten jurors in 
 
 or 111 a County Court, or m any matter or cause within thevmdiotor 
 jurisdiction of the Provincial Legislature, where issues are atiHworB to be 
 tried or where damages are assessed by a jury, it shall be *" °'*" " 
 sufficient if ten of the jurors empanelled for the trial or assess- 
 
 :3' 
 
 3 
 
 *r:- 
 
 USH 
 
 J» 
 
 ■MM* 
 
 40 
 
 '«■' 
 
 ^^ 
 
 •k.M' 
 
 
 
 •WW 
 
 
 
 ■ v" 
 
 5« 
 
 ^ 
 
 a 
 
 ■^11 
 
'^ 
 
 196 
 
 Sec. 112. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 rr' 
 
 ment shall agree, in.stead of twelve ; and in such case ten 
 jurors may give the verdict, or answer the questions sub- 
 mitted to the jury by the Judge. 58 V. c. 12, s. 112(3); 
 c. 16, s. 1. 
 
 (2) A verdict rendered or question answered under tlie pro- 
 visions of this section shall have the same effect as the verdict 
 or answer given by twelve jurors. ftS V. c. 12, s. 112 (4) ; 
 c. 16, s. 3. 
 
 Special juries. (3) Tliis Section shall apply to special juries. 58 V. c. 12, 
 s. 112(5); c. 16, s. 4. 
 
 Effect of ver 
 diet or 
 answers ho 
 given. 
 
 Death or ill- 
 nesH of juror 
 or discovery 
 of interest 
 during trial. 
 
 1 00. If at the trial of any action or issue or assessment of 
 damages, a juror should die or become incapacitated by illness 
 or any other cause from continuing to sit or act on the jurj'^, 
 or if it should be discovered that one of the jury sworn has 
 an interest in the result of the suit or is a relative of any of 
 the parties thereto within the degree of first cousin, the pre- 
 siding Judge may discharge such juror, and may in any such 
 case direct that the trial or assessment shall proceed on such 
 terms as he thinks fit with eleven jurors, and in such case ten 
 jurors may give the verdict or answer the questions submitted 
 to the jury by the Judge. 58 V. c. 12, s. 113. 
 
 Judge may 110. Notwithstanding anything in sections 106 and 107 
 
 furyf or"with'!' Contained, the Judge presiding at the trial may in his discretion 
 out a jury. direct that the action or issues shall be tried or the damages 
 assessed by a jury ; and upon application to the Court in 
 which the action is pending, or to a Judge thereof, by an order 
 made before the trial, or by the direction of the Judge presid- 
 ing at the trial, the issues may be tried and damages assessed 
 without a jury. 58 V. c. 12, s. 114 ; 59 V. c. 18, Sched. (^18). 
 
 Verdict. 
 
 Court may 111. Upon a trial by a jury, it shall not be lawful for the 
 
 gi ve'^a ipecial J^^T ^^ S^^^ '^ general verdict, where the Court or the pre- 
 verdict, except siding Judge otherwise directs, and it shall be the duty of the 
 libef '"'°* ^""^ jury to give a special verdict if the Court or presiding Judge 
 so directs ; and the jury may give either a general or a 
 special verdict, unless the Court or the presiding Judge other- 
 wise directs ; but this section shall not apply to actions of libel. 
 58 V. c. 12. s. 116. 
 
 In certain 
 cases the jury 
 may be direct- 
 ed to answer 
 questions, and 
 on the answers 
 the .Tudge 
 shall enter 
 verdict. 
 
 1 1 'i. Upon a trial by jury, in any case except an action for 
 libel, slander, criminal convei-sation, seduction, malicious arrest, 
 malicious prosecution or false imprisonment, the Judge, in- 
 stead of directing the jury to give either a general or a special 
 verdict, may direct the jury to answer any (juestions of fact 
 stated to them by the J udge for the purpose ; and in such case 
 the jury shall answer such (juestions, and shall not give any 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 112. 
 
 197 
 
 verdict ; and, on the finding of the jury upon the questions 
 which they answer, the Judge may direct judgment to be 
 entered. 58 V. c. 12, s. 117. 
 
 INTEREST. 
 
 113. Interest shall be payable in all cases in which it is ^^alTowed"^ 
 now payable by law, or in which it has been usual for a jury as hitherto, 
 to allow it 58 V. c. 12, s. 118. 
 
 1 1 4. — (1) On the trial of uny issue, or any assessment of When allowed 
 
 on QsbtiB ccr* 
 
 damages, upon any debt or sum certain, payable by virtue of tain and over- 
 a written instrument at a certain time, interest may be allowed due. 
 to the plaintiff from the time when the debt or sum became 
 payable. 
 
 (2) If such debt or sum is payable otherwise than by virtue 
 of a written instrument at a certain time, interest may be 
 allowed from the time when a demand of payment is made in 
 writing, informing the debtor that interest will be claimed 
 from the date of the demand. 58 V. c. 12, s. 119. 
 
 1 15. In actions for conversion of goods or for trespass de When byway 
 
 of Q&ni&crcs 
 
 bonis asportatis, the jury may give interest in the nature of in certain 
 damages over and above the value of the goods at tlio time of actions, 
 the conversion or seizure, and in actions on policies of insurance 
 may give interest over and above the money recoverable 
 thereon. 58 V. c. 12, s. 120. 
 
 1 1«. Unless it is otherwise ordered by the Court, a verdict -"agj^ent" 
 or judgment shall bear interest from the time of the rendering 
 of the verdict, or of giving the judgment, as the case may be 
 notwithstanding that the entry of judgment, shall have been 
 suspended by any proceedings in the action, whether in the 
 Court in which the action is pending or in appeal. 58 V. 
 c. 12, s. 121. 
 
 PLEADINGS IN ACTIONS ON FOREIGN JUDGMENTS. 
 
 111. In any action brought in Ontario on a judgment ?"!* "P"". 
 obtained in the Province of Quebec in an action in which Quebec, where 
 the service of notice on the defendant or party sued has been service was 
 personal, no defence that might have been set up to the P®"°"* • 
 original action shall be pleaded to that brought on the judgment. 
 58 V. c. 12, s. 122. 
 
 118. In any action brought in Ontario on a judgment ?"|t "P"". 
 obtained in the Province of Quebec in an action in which Quftecrwhere 
 personal service was not obtained and in which no defence the service 
 was made, any defence that might have been set up to the p^Honal. 
 original action may be made to the action on the judgment. 
 58 V. c. 12, s. 123. 
 
 ^ A 
 
198 
 
 Sec. 122 (1). 
 
 THE .ILTDICATURE ACT. 
 CO.STS. 
 
 Chap. 51- 
 
 CuHt in ili'*- 
 cretioM of 
 Court. 
 
 1 1J>. SuV)ject to Rules of Court, and to the ex|)res.s provis- 
 ions of any statute, the costs of and incident to all jiro- 
 ceedings in the SajJiome Court of Judicature, shall be in the 
 discretion of the Court or Judge, and the Court or Judge shall 
 have full power to determine by whom and to what extent 
 such costs are to be paid. 59 V. c. 18, s 11. 
 
 WITNESS FEES. 
 
 FeeH of 
 certain officers 
 
 duuinir 
 docutnKnt'4. 
 
 I'lO. No public official or other witness subprenaed or 
 call'id upon to produce before any Court or other triliunal any 
 public or other document shall be entitled to more than 
 ordinary witness fees, unless the Court or other tribunal 
 otherwise orders. 58 V. c. 12, s. 127, part; 59 V. c. 18, 
 Sched. (20). 
 
 REFEUENCES TO MASTER IN ORDINARY. 
 
 {■■■ 
 
 When 
 
 references to 
 loe to master 
 ia ordinary. 
 
 Rev. Stat. 
 c. 62. 
 
 Vll . — ( 1 ) Unless the Master in Ordinary shall certify that by 
 reason of press of business, or for other good reasoti, he is pre- 
 sently unable to proceed Avith any reference or trial, or unless 
 the Judge or the Court which directs the reference or the trial 
 is satisfied that the said Master in Ordinary is otherwise un- 
 able or ought not by reascm of disqualification or for any other 
 goodreason,to take oi' proceed with any ' 
 references which shall be nuide by the ' 
 thereof at the trial or hearin" 
 suit or proceeding begun an< 
 which might according to the i ice oi 
 to the Master in Ordinary, sli. be to 
 nary. This section shall apply to refr ■ 
 of the Court or a Judsre under The A 
 
 rial, the 
 
 a Judge 
 
 ly action, 
 
 onto, and 
 
 oe referred 
 
 ,ie Master in Ordi- 
 
 nces made by order 
 
 it ration Act. 
 
 lU 
 
 Cou 
 
 (2) Nothing in this section contained shall affect tl 
 powers of reference of the Court or Judge where a referen- 
 shall be made to an engineer or other skilled or expert per 
 60 V. c. 14, s. 87. 
 
 ^^XXCC^zy %^^t^^i2. 
 
 i~< lit 
 
 inc. 
 
 RULES OF COURT. 
 
 Judges of 
 Supreme 
 Court may 
 make rules. 
 
 12?i. — (1) The Supreme Court may at any time, with the 
 concurrence of a majority of the Judges thereof present at any 
 meeting held for that purpose, alter and annul any Eules of 
 Court for the time being in force, and may make any further 
 or additional Rules of Court for carrying this Act into effect, 
 and in particular for all or any of the following matters that 
 is to say : 
 
 (a) For regulating the sittings of the High Court of Jus- 
 tice and the Court of Appeal, and of any Divisional 
 
 T 
 
T 
 
 Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 122 (1). 
 
 199 
 
 or other Courts thereof respectiv'ely, ami of the 
 Judges of the said High Court sitting in Chambers ; 
 
 (h) For regulating the pleading, i)ractice, and procedure 
 in tlie High Co\u't of .lustice and Court of Appeal ; 
 
 ((■) For the hearing of appeals from County Courts, or from 
 a Judge of a County Court, from Provisional Judi- 
 cial District Courts or from a Judge of any such 
 Court, from Surrogate Courts, Stipendiary Magis- 
 trates, or Division Courts, by any two or more of the 
 Judges of the Su|)rcme Court, and for regulating the 
 selection of the Judges of the Supreme Court, who 
 shall hear such appeals, and for regulating all 
 matters relating to the practice of such appeal.; ; 
 
 (d) For empowering the Master in Chambers, or aay To emixwer 
 
 referee sitting for him, or the Judges of the County chamber" 
 
 Courts, other than the Judge of the County of etc., to make 
 
 York, or the Local Masters in respect of actions "'■*'^"" 
 
 brought in their C(junties, to do anv such thing, 
 
 and to tiansact any such business, and to exercise 
 
 any such authority and jurisdiction in I'cspect of 
 
 the same as by virtue of any Statute or custom, or 
 
 by the Rules f)f the High Court, are now or 
 
 may be hereafter done, transacted or exercised 
 
 by a Judge of the High Court sitting at Chambers, 
 
 and as shall be speciKed in any such rule, except 
 
 in re.spect of matters relating to — 
 
 1. The liberty of the subject ; 
 
 2. Appeals and applications in the nature of 
 
 appeals ; 
 
 3. Proceedings under The Act respectinq Luna- R^^. Stat., 
 
 tics-'' ^ ^ ''■''■ 
 
 ■4. Applications for advice under The Trustee Kev Stat 
 Act; c. 129. 
 
 5. Matters affecting the custody of children ; and 
 
 6. Proceedings under section 87 of this Act. 
 
 (e) Generally, for regulating any matteis relating to the 
 
 pi'actice and procedure of the said Courts respect- 
 ively, or to the duties of the officers thereof, or of 
 the said Supreme Court, or to the costs of proceed- 
 ings therein ; and every other matter deemed 
 expedient for the better attaining the ends of jus- 
 tice, advancing the remedies of suitors, and carry- 
 ing into effect the provisions of this Act and of all 
 other Acts now or hereafter in force respecting the 
 said Courts. 
 
 (/) Subject to the approval of the Lieutenant-Governor 
 in Council, to make rules from time to time i-egu- 
 lating all fees payable in stamps. 
 
 \ 
 
 it- ^ 
 
 
 
 o 
 
 
Iff'i 
 
 200 
 
 Judges of 
 Court of Ap- 
 peal may 
 make rules. 
 
 c: 
 
 Judges of 
 Higlj Court 
 may make 
 rules. 
 
 Lieut. -Gov 
 
 
 Sec. 125. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 (2) Where any provisions in respect of the practice or pro- 
 cedure of any courts, the jurisdiction of which is vested by 
 this Act in the High Court, are contained in any statute, Rules 
 of Court may be made for modifying such provisions to any 
 extent that may be deemed neces.sary for adapting the same 
 to the High Court, unless, in the case of any Act hereafter 
 passed, this power shall be expressly excluded. 
 
 (3) Any provicions relating to the payment, transfer or de- 
 posit into, or in, or out of any Court of any money or pro- 
 perty, or to the dealing therewith, shall, for the purposes of 
 this section, be deemed to be provisions relating to practice 
 and procedure. 
 
 (4) All Rules of Court made in pursuance of this section 
 shall from and after they come into operation, regulate all 
 matters to which they extend, until annulled or altered in pur- 
 suance of this section or section 125. rS V. c. 12, s. 132 ; c. 13, 
 
 .s. 41. 
 
 1 33. Subject to any Rules of Court which may be made 
 under the provisions of the preceding section, the Judges of 
 the Court of Appep\ or a majority of them, may from time to 
 time make such general rules and orders for fixing the costs to 
 be allowed in respect of proceedings in the said Court, and for 
 regulating the different proceedings in appeal, and generally 
 for the effectual execution of this Act and the intention and 
 object thereof in regard to the practice in appeals as to them 
 may seem expedient ; and may also from time to time alter 
 and amend any of the existing rules or any I'ules made under 
 the authority of this Act, and make other rules instead there- 
 of ; and until isuch rules are made, the present rules and the 
 existing practice and mode of proceeding in the Court shall 
 continue in force. 58 V. c. 12, s. 138. 
 
 1 'i4. The Judges of the High Court or any four of them, 
 of whom two of the Presidents of the Divisions of the High 
 Court shall be two, shall, as regards matters in the High Court, 
 have power to make general . ules from time to time for the 
 regulation of the practice of the High Court. 58 V. c. 12, s. 134. 
 
 , l*/J5. The Lieutenant-Ciovernor in Council may from time 
 
 offma'y °"" ^^ ^'i"'^ authorize the following persons, viz. : the Chief Justice 
 
 authorize cer- of Ontario, the Chancellor, the Chief Justice of the Queen's 
 
 make rlt *" Bench, the Chief Justice of the Common Pleas, and any one or 
 
 more of the other Justices of the Supreme Court, to make 
 
 Rules of Court under this Act; every such appointnient to 
 
 continue for sucli time as .shall be specified by Order-in Council, 
 
 and the Judges so appointed, or any three of them, may make 
 
 such rules, and the same shall have the same effect as if ma<le 
 
 by all the Judges of the Supreme Court, under section 122. 
 
 58 V. c. 12. s. 135. 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 126. 
 
 201 
 
 1 30. The Judges of the Supreme Court and of the High Authority to 
 Court, respectively, shall have the same authoiity to '"f^ke q*^!^^®^^"'®^/^^ 
 Rules of Court with respect to District Courts as they have trictCourtR. 
 with respect to the High Court and to County Courts, and the 
 Judges authorized as mentioned in section 125 of this Act 
 shall, with respect to District Courts, have the like authority. 
 58 V. c. 12. .s. 136. 
 
 1 21. A Council of the Judges of the said Supreme Court, of Council of 
 which due notice shall be given to all the said Judges, shall gj^^efp^ro"'^'" 
 assemble once at least in every year, on such day or days as cedure and 
 shall be fixed by the Lieutenant-Governor, for the purpose of tioi?()f'ju8tico. 
 considering the operation of this Act and of the Rules r' Court 
 for the time being in force, and also the working of the several 
 offices and the arrangements relative to the duties of the officers 
 of the said Courts respectively, and of en(|uiring and examining 
 into any defects which may appear to exist in the system of 
 procedure or the administration of the law in the High Court 
 of Justice or the Court of Appeal, or any other Court, or by 
 any other authority ; and they shall report annually to the 
 Lieutenant-Governor what (if any) amendments or alterations 
 it would in their judgment be expedient to make in this Act, 
 or otherwise relating to the administration of justice, and what 
 other provision (if any) which cannot be carried into effect 
 without legislative authority it would be expedient to make 
 for the better ndministiation of justice ; an extraordinary 
 council of the said Judges may also at any time be convened 
 by the Lieutenant-Governor. 58 V. c. 12, s. 137. 
 
 I?5H. Save as by this Act or by any Rules of Court other- Provision for 
 wise provided, all forms and methods of procedure which, prior existmg nro- 
 to tiie 22nd day of August, 1881, were in force in any of the cedure where 
 Courts whose jurisdiction then became vested in the said High "igtent^witli 
 Court, under and by virtue of anj' law, general order, or rule this Actor 
 whatijcever, and which are not inconsistent with this Act or Q"„rt " 
 with any Rules of Court, may continue to be used and prac- 
 tised in the said High Court of Justice, in such and the like 
 cases, and for such and the like purposes as nearly as may be, 
 as those to which they would have been applicable prior to the 
 said date in the respective Courts of which the jurisdiction 
 became so vested. 58 V. c. 12, s. 188. 
 
 1/Jt>. Tiic Cimsolidated Rules of Practice and Procedure of Consolidated 
 1897, revised and consolidated under the authority of section ti"e prepared" 
 42 of The Law Goarts Act, 1H9'), and of section 15 of The Law under 68 v. 
 Goiii'is Act, L'^OG, by the Connnissioners appointed under the [^g y' ^"^^y 
 said section 42 and approved by the Lieutenant-Governor in confirmed.' 
 Council are hereby declared to be as valid as if contained in an 
 Act of the Legislature ; and nothing in the said rules shall be 
 open to any question as to the jurisdiction to make, approve 
 and authorize the same under the said section or otherwise, 
 
 ^ 
 
 m 
 
202 
 
 Sec. 133 (3). 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 but the same shall be subject to be varied or repealed from 
 time to time by the same authority and in the .same manner 
 as other Rules of Court. 59 V. c. 18, .s. 15. 
 
 Registrar may 
 be api)()inted 
 for the Court 
 of Api)eal. 
 
 Feea to be paid 
 KegiBtrar in 
 BtaiiipH. 
 
 Rev. Stat. 
 c. 25. 
 
 OFFICERS AND OFFICES. 
 
 i;{0. — (1) The Lieutenant-Governor in Ccmcil may from 
 time to time appoint a suitable person to be Registrar of the 
 Court of Appeal. 
 
 (2) The said Registrar .shall not take for his own use or 
 benetit, directly or indirectly, any fee or emolument save the 
 salary to which he is entitled by law ; and all fees received 
 by him on account of the said office .shall form part of the 
 Consolidated Revenue Fund, and shall be payable in stani]is, 
 subject to The Act respecting Laiu Stamps. 58 V. c. 12, s. 139. 
 
 .-*;>■ 
 
 Appointment IIJl. — (1) The Lieutenant-Governor may from time to time 
 eto^^*'**""' appoint a Master in Ordinary, a Master in Chambers, an 
 
 Accountant of the Supreme Court and two or more Taxing 
 
 Officers. 
 
 (2) Subject to orders of the Lieutenant-Governor in Council, 
 the said officers and the Local Masters shall be officers of the 
 Supreme Coui't and attached thereto. 58 V. c. 12, s. 140. 
 
 Appointment 
 of Clerk of 
 Process, etc. 
 
 Duties. 
 
 Officers to 
 remain 
 
 attached to 
 their aeveral 
 DiviHioHR 
 until changed. 
 
 lli'i. The Lieutenant-Governor may from time to time 
 appoint for the High Court ; one Clerk of the Crown and 
 Pleas ; two Registrars ; one Clerk of the Process ; one Clerk 
 of Records and Writs, and also such other clerks and officers 
 as the business of the Court may, from time to time, require ; 
 and such officers and clerks shall, in addition to any of the 
 duties usunlly performed by the like officers and clerks, per- 
 form such duties as may by Order in Council or Rules of the 
 Supreme Court or the High Court be provided. 58 V. c. 12, 
 - 141, part ; 59 V. c. 18, Sched. (22). 
 
 II5J5. — (1) Subject to orders of the Lieutenant-Governor in 
 Council, all officers attached to the various Divisions of the 
 High Court shall remain and continue to be attached to the 
 Division to which they are now respectively attached. 
 
 (2) Where a doubt exists as to the position under this Act 
 of any existing officer attached to any Court or Judge affected 
 by this Act, such doubt may be deternuned by Rule of Court. 
 
 (3) The Lieutenant-Governor in Council shall have the 
 power and (subject to any Order in Council) the Judges of 
 the said Supreme Court shall have power to change the official 
 names of offices and officers, and to change and regulate the 
 duties of the officers. 58 V. c. 12, s. 142. 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 SftC. 134. 
 
 203 
 
 134. Subject to any Order in Council in that belialf, the Distribution 
 business to be pei-tbrmed in the High Court and in the Court among"^** 
 of Appeal respectively, or in any Divisional or other Court officers, 
 thereof, or in the Chambei's of any Judge thereof, other than 
 that performed by the Judges, shall be distributed among tlie 
 several officers attached to the said Courts by the preceding 
 section in such manner as may be directed by Jiules of Court ; 
 and sucli officers shall perform such duties in relation to such 
 business as may be directed by Rules of Court; and, subject 
 to such Order in Council and Rules of Court, all such officers 
 respectively shall continue to perform the same duties, as 
 nearly as may be, and in the same manner as if this Act had 
 not been pa .Jcd. oS V. c. 12. s. 143. 
 
 135. — (1) Every officer of the Court hereafter appointed o^*" °f 
 shall, before he enters upon his duties, take and subscribe the 
 following oath : — 
 
 " I, A. B. of , do hereby solemnly swear that I will, according to Form. 
 
 the beat of my skill, learning, ability and judgment, well and faithfully 
 execute and fulfil the duties of tlie office of (k.s the case may be) without favour 
 or affection, prejudice or partiality, to any person or persons whomsoever. 
 So help me God." 
 
 (2) When not convenient to a person appointed to any office H.k"'^*' whom 
 to attend at Toronto to take th? oath of office, the oath may 
 be taken before the Judge of the County Court of the County 
 in which the officer resides, or before a CoTnmissioner author- 
 ized to administer affidavits in such County, and the oath shall 
 be certified by the Judge or Commissioner and filed amongst 
 the records of the Court at Toronto. In all other cases the 
 oath shall be administered to the officer by the Judge in open 
 Court. 58 V. c. 12. s. 145. 
 
 136. The Clerk of the Crown and Pleas, the Clerk of the Officers to 
 Process, the Registrai's and Local Registrars of the High ^'^* *^"'^* ^' 
 Court, and the Deputy Clerks of the Ciown and Pleas, shall 
 within one month next after their appointment, give security 
 to Her Majesty, in such sum and with so many sureties, and 
 in such form as the Lieutenant-Governor in Council directs, 
 conditioned respectively for the due performance of the duties 
 of their respective offices. 58 V. c. 12,s. 146, part ; 59 V. c. 18, 
 Sched. (23). 
 
 7 
 
 t^ 
 
 - ;; 
 
 131. The neglect by any such officer to give such security Consequences 
 shall render his appointment void ; but the forfeiture of office todo^sa '"^ 
 shall not affect any Act done by him during the time he 
 actually continues to hold his appointment. 58 V. c. 12, 
 .s. 147, part ; 59 V. c. 18, Sched. r«>l.N 
 
 1 38. Ti>e Lieutenant-Govern ..i in his discretion Who to an- 
 
 approve of the security and sureties so given l»v the Clerk of ''ureties 
 the Process, Clerk of the Crown and Pleas and Registrars ; and 
 the Judge oi' the County Court having first certified his 
 
Iff-' 
 
 204 
 
 Sec. 143 (2). 
 
 THE JUDICATURE ACT, 
 
 Chap. 51. 
 
 approval in writing, of the security and sureties given by the 
 Lociil Registrar or Deputy Clerk of the Crown for his County, 
 the Lieutenant-Governor shall in his discretion approve of the 
 security and sureties so given by such Local Registrar or 
 To be record'Hi Deputy Clerk; and such securities, when executed and 
 a" pnmded by approved, shall be duly recorded in the manner provided by 
 Kev. stiu. The Act respecting Public Officers, and shall then be deposited 
 
 c. 16. - — .._ ... — - — — ^._ 
 
 in the office of the Provincial Treasurer, 
 part ; 59 V. c. 18, Sched. (25). 
 
 58 V. c. 12, s. 148, 
 
 ,:.:■?;■• 
 
 kJ^ttt'" ^ '^*- '^^^ ^'^''^ ^'^ ^^^ Crown and Pleas, the Registrars and 
 OHjfoodfl Hall, the Clerk of the Process respectively shall keep their offices 
 
 in O.sgoode Hall, in the City of Toronto. 58 V. c. 12, s. 149 ; 
 
 59 V. c. 18, Sched. (26). 
 
 The Clerk of 
 Process to 
 make quar- 
 terly returns. 
 
 1 40. The Clerk of the Process shall make to the Treasurer 
 of the Province quarterly returns, verified by his affidavit, of 
 all writs and process supplied by him to be issued by the 
 said officei-s. 58 V. c. 12, s. 151, part; 59 V. c. 18, Sched. 
 (27). 
 
 
 Official 
 referees. 
 
 Additional 
 referees may 
 be appointed. 
 
 141. — (1) Subject as aforesaid, the Judges of the County 
 Courts, the Master in Ordinary, the Master in Chambers, the 
 Clerk of the Crown and Pleas, the Registrars of the High 
 Court, and the Local Masters shall be official referees for the 
 trial of such questions as shall be dii'ected to be tried by such 
 referees. 
 
 (2) In case the busine.ss is found to require other or addi- 
 tional official referees, and the President of the High Court so 
 cert'^'s, the Lieutenant-Governor from time to time may 
 appoi> -J other and additional' official referees accordingly. 58 
 V. c. 12, s. 152 (1, 2), part , 69 V. c. 18, Sched. (28). 
 
 When fees to 
 be paid in 
 stamps. 
 
 14*4. In the case of officers who are paid by salary, the fees 
 on any reference or trial shall be paid in stamps other referees 
 shall be paid in money. 58 V. c. 12, s. 152 (3). 
 
 Local 
 Masters. 
 
 In case of 
 vacancy. 
 
 14J{. — (1) There shall be a Local Master in every county or 
 imion of counties other than the County of York, and every 
 Local Master hereafter appointed shall reside in the county 
 for which he is appointed. 
 
 (2) When a vacancy occurs in the office of Local Master, the 
 Judge of the County Court for the county shall be the Local 
 Master imtil and unless another person is ajipointed Local 
 Master. In such case if there are two County Judges, a Senior 
 and Junior Judge, both Judges shall be Local Masters until 
 and unless one of them or some other person is appointed sole 
 Local Master. 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 143 (3). 
 
 205 
 
 (3) Except in the County of York, the several Clerk.s of the Deputy Clerks 
 County Coui-ts .shall be ex officio Deputy Clerks of the Crown "^ "'^ ^'"'^"• 
 and Pleas of the High Court for their respective Counties, 
 
 unless the offices of Deputy Clerk of the Crown and Deputy 
 Registrar are consolidated under subsection 5. 
 
 (4) Where a County Court Judge is the Local Master, the R^"?tJar'/ 
 County Court Clerk shall be the Deputy Registrar. *'^"' '"'^'*' 
 
 (5) The offices of Deputy Clerk of the Crown and Deputy J;"^^' ^«8'«- 
 Registrar (not Local Master) shall be consolidated as vacancies 
 
 occur in either ; unless where the Presidents of the Divisions 
 of the High Court or a majority recommend otherwise ; when 
 the said offices are held bj' the same person, he shall be styled 
 Local Registrar of the High Court. 58 V. c. 12, s. 153(1-5;. 
 
 144. — (1) Except as provided in subsection 4 of section 30 I'^ees of De 
 of The Arbitration Act, where a reference is made to a Deputy the^rijwn.*' " 
 Clerk of the Crown, or an examination is taken by him, he .shall Rev. Stat, 
 be entitled to take and receive to his own use the fees on such c 62 
 reference or examination. 
 
 (2) The Lieutenant-Governor in Council may commute the Commutation 
 fees of a Local Master, or of a Local Master and Deputy Regis- Masters- 
 trar, including his fees as an official referee, for a fixed annual 
 
 sum, such sum not to exceed the average income derived from 
 such fees for the preceding five years. 
 
 (3) The Lieutenant-Governor in Council may commute the Cominutation 
 fees payable to a Deputy Clerk of the Crown on references and i)eputy°Clerk» 
 examinations and other matters for a fixed annual sum, such of the Crown, 
 sum not to exceed the average income derived from such fees 
 
 during the preceding five years. 
 
 (4) Any annur.l sum fixed as provided in the preceding Amount of 
 two subsections shall continue until varied by Order in Coun- ™^'be**''"" 
 cil, but any order for payment of any such annual sum as changed, 
 aforesaid may be rescinded, and the amount may by Order in 
 Council be iuci-eased or diminished, provided that in no case 
 
 shall any Order in Council name a sum exceeding the average 
 income or fees aforesaid (as the case may be) during the pre- 
 ceding five years. 58 V. c. 12, s. 153 (U-9). 
 
 145. The Local Masters, Local Registrars, and Deputy Appointment 
 Clerks of the Crown, Deputy Registrars and other officers "^ o*fi«=erH. 
 mentioned in this Act shall be appointed by the Lieutenant- 
 Governor, and every such officer heretofore or hereafter 
 appointed shall hold office during the pleasure of the Lieu- 
 tenant-Governor. 58 V. <;. 12, s. 153 (10). 
 
 140. Subject to Rules of Court as to office hours during oitioe hours of 
 vacations and in Toronto on Saturdays, the offices of the j,'ij''"'*' 
 Local Registrars, Deputy Clerks of the Crown, and those of 
 
 y 
 
 ? 
 
206 
 
 Sec. 150 (1). 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 the Supreme Court, Court of Appeal, and the High Court of 
 Justice for Ontario at Osgoode Hall, shall be kept open from 10 
 o'clock in the forenoon until 4 o'clock in the afternoon, except 
 upon legal holidays or other special days appointed by an Act 
 ' ~ ■ " 60 V. c. 3, s. 3 ; c. 14, s. 89. 
 
 of the Legislature 
 
 use. 
 
 Officers paid 141. — (1) Where a Local Master, or Deputy Registrar, or 
 toMkrfees""* Deputy Clerk of the Crown, or other officer, is paid by a 
 for thtir own salary, he shall not, save as hereinbefore expressly provided, 
 take for his own benefit, directly or indirectly, any fee or emolu- 
 ment, save the salary to which he is entitled ; but the like sums 
 and fees heretofore payable on proceedings in his ofi'ce shall con- 
 tinue to be payable ; and all such fees shall form part of the 
 Consolidated Revenue Fund of this Province, and shall be pay- 
 able in stamps, subject to the provisions of The Ant respecting 
 Laiv Stamps. 58 V. c. 12, s. 153 (11). 
 
 Rev. Stat, 
 c 25. 
 
 Local officers (2) The Local Masters and Deputy Registrars not paid by 
 
 may take fees salary and the commissioners for taking affidavits may retain 
 
 salary.* to their own use all the fees of office which they I'espectively 
 
 receive not payable to the Crown or belonging to any fee 
 
 fund, and need not account to the Crown for any portion of 
 
 such fees. 58 V. c. 12, s. 180 (2). 
 
 in certain 
 cases. 
 
 LocalMasters 148. No Local Master whose gross income from his 
 fn cerfcmn'^"^^ officc of Local Master or of Deputy Registrar and Local Master, 
 is $2,000 or upwards, shall, during the continuance of his 
 appointment, directly or indirectly, practise in the profession of 
 the law as Counsel, or Solicitor, or as a Notary Public, or Convey- 
 ancer, or do any manner of conveyancing, or prepare any papers 
 or documents to be used in any court of this Province, under the 
 penalty of fui-feiture of office and the further penalty of S400, 
 to be recovered by any person who sues for the same by action 
 in the High Court, and one-half of such pecuniary |)enalty shall 
 belong to the party suing, and the other half to Her Majesty 
 for the use of the Province; and nothing in this section shall 
 prevent the Lieutenant-Governor in Council, or the High Court, 
 from retjuiiing a Local Master whose income does not amount 
 to S2,000, to abstain trom practising under the like penalties. 
 58 V. c. 12, s. 153 (12). 
 
 High Court 
 may except 
 officers from 
 88. H3(l) 
 and 148. 
 
 140. The High Court may, with the concurrence of the 
 Lieutenant-(<overnor, relieve any ])erson now holding the 
 office of Local Miisterand Deputy Registrar, or any other officer 
 from the o2)erati()n of subsection I of section 14.'i, and section 
 148, or of either of them. ,58 V. c. 12, s. 153 (13). 
 
 Salariesof 150. — (1) Tlie Lieutenant-Governor in Council may 
 
 of'the^rJwii!'' f''i'^^t that sums not in any case exceeding $000 nor ie.ss than 
 
 $I00 yearly shall be paid out of such moneys as may be 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 150 (1). 
 
 207 
 
 voted by the Legislature for the purpose, as and for the 
 .salaries of the Deputy Clerks of the Crown respectively. 
 
 (2) The preceding provision fixing the maxinnnn at $600 
 shall not apply to any case where the Deputy Clerk does not 
 hold the othce of Registrar of the Surrogate Court. 58 V. c. 
 12, s. 181. 
 
 151. — (1) Every officer paid by fees, whether commuted or Returns of 
 not, shall on or before the loth day of January in every year, ^*'*'* 
 transmit to the Inspector of Legal Offices appointed under 
 section 165 of this Act, a just, true and faithful account, verified 
 upon oath, of the amount of fees paid or payable to him in ca.sh 
 or in stamps, in respect of his office during the preceding year, 
 and also such particulars with reference to the business of his 
 office as the Inspector of Legal Offices may require. 
 
 (2) The Lieutenant-Governor or the member of the Govern- Fu mof 
 ment having charge of the matter may require the return to ™'"™*- 
 state any particulars, or to be mad.' in any form that may be 
 thought proper, and such return shall be made accordingly. 
 
 58 V. c. 12, s. 153 (14, 15). 
 
 • 
 1 555. In the office of every Local Registrar, Deputy Regis- Seals of 
 trar and Deputy Clerk of the Crown such seal shall be used Deputy Regis- 
 as the Lieutenant-Governor shall from time to time direct, Deputy Clerks 
 which seal shall be impressed on eveiy writ ami other docu- °^ *^^ Crown, 
 ment issued out of or filed in such office ; and all such writs 
 and documents, and all exemplifications and copies thereof, 
 purporting to be sealed with the seal of any such Local Regis- 
 trar, Deputy Registrar or Deputy Clerk of the Crown, shall in 
 all parts of this Province be receiveil in evidence without fur- 
 ther proof thereof. 58 V. c. 12, s. 154. 
 
 I an. The Lieutenant-Governor in Council may from time Marshal and 
 to time appoint a suitable person to be the Marshal and Clerk S!.^^'^!?!.^.1,\,. 
 
 n A • 1. 1 /-< • ■«' 1 1 1 11 1 1 1 iT» 1 • Size for county 
 
 01 Assize tor the County of York, who shall hold office dunng of York. 
 pleasure. 58 V. c. 12, s. loo. 
 
 154. Every Marsiial and Clerk of Assize, being a Deputy Remuneration 
 Clerk of the Crowii, Deputy Registrar, or Local Registrar, oryf;^^^;^^. 
 authoiized to act as such, sliall he entitled to be paid out of the 
 Consolidated Revenue Fund the sum of S4 for each day's atten- 
 dance as such Mai'shal or Clerk of Assize. 58 V. c. 12, s. 156 ; 
 
 59 V. c. 18, Sched. (29). 
 
 155. No charuo whatever shall be made by any of the said p^"*^ !^" ''e^eive 
 
 -, , , r^i P c \ • • • 1 1. • V 1 ''-*'' '" crimi- 
 
 Marshals or Clerks ot Assize upon any criminal triiii or proceed- nal cases, 
 
 ing in any Court at which they act as Marshals and Clerks of 
 
 Assize respectively. 58 V. c. 12, .s. 157. 
 
 15«.— ^1) Each Deputy Clerk of tiie Crown and Pleas shall, ^||^f^''^£|,g 
 if proper accommodation is afibnled him, keep his office in the uinceto bo 
 
 kept. 
 
 7 
 
 
 O 
 
v^' 
 
 208 
 
 Sec. 157 (5). 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 Pvoviso. 
 
 Otfic'ial guar- 
 dian ad litem. 
 
 Unties (if 
 Guardian. 
 
 Co.sts of 
 Guardian. 
 
 'Si, 
 
 kw 
 
 m 
 
 Costs where 
 estate is 
 small. 
 
 mm 
 
 Salary of 
 Guardian. 
 
 Court House of lii.s County, and until he can obtain such accom- 
 modation he .sliall keep his office in some convenient place in 
 the County Town, 
 
 (2) Provided, however, that the Deputy Clerk of the Crown 
 and Pleas at Sandwich may keep an office in some convenient 
 place in the Town of Windsor, in the County of Essex, subject 
 to such arrangements as the (Jounty Council of the County of 
 Essex may assent to, and subject also to the approval thereof 
 by the Lieutenant -Oovernor in Council. 58 V. c. 12, s. 158. 
 
 I5T. — (1) There shall be an Official Guardian ad litem of 
 infants, who shall be appointed by the Lieutenant-Governor, 
 and shall be a Barrister-at-Law and Solicitor of this Province, 
 of not less than seven years' standing, and shall hohl office 
 during pleasure. 58 V. c. 12, s. 159 (1). 
 
 (2) The Official Guardian, besides acting as a Guardian ad. 
 litevi of infants under Rules of Court and other oiders, .shall 
 perform such other duties as the Pi'esident of the High Court 
 may from time to time direct. 58 V. c. 12, s. 159 (2) ; 59 V. 
 c. 18, Sched. (30). 
 
 (3) The saifie costs as hitherto shall be paid to the Guardian 
 by any party : and the same costs as hitherto shall be payable 
 to the Guardian out of funds in Court ; but all costs so paid to 
 the Guai'dian by any party shall be by such Guardian paid 
 forthwith into Court with the privity of the Accountant of the 
 Supreme Court, and .shall be placed to the ci*edit of an account 
 to be entitled " Account of Official Guardian (uZ ^i^e7ii;" and 
 all costs payable to the Guardian out of any funds in Court, 
 shall be transferred to the credit of the same account. 
 
 (4) Whore the estate is small, and, in view of the amount at 
 the credit of the said account, the amount or part of the 
 amount payable out of the estate for the Guardian's costs does 
 not appear to be required to pay the salary and disbursements 
 of the Official Guardian, the Court may withhold payment out 
 of such estate of the sum or any piirt of the sum due for the 
 Guardian's costs in respect of such estate ; and may distribute 
 the estate as if such costs were not payable by or out of tins 
 ^ame. 
 
 (5) There shall be paid to the said Guardian in respect of 
 all business done a fixed salary of such sum per annum as, in 
 view of the amount of business done or to be done by the 
 Guardian, and the sum at the credit of the account, the said 
 Judges think reasonable and the Lieutenant-Governor in Coun- 
 cil appi'oves ; which salary shall be over and above all neces- 
 sary disbursements ; and the salary and disbursements shall bo 
 paid monthly or otherwise as shall be ileteruiitu^d by Rule of 
 Court, out of the fund at the credit of the said account of 
 Official Guardian ad litem, and not otherwise. 
 
 m 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 157(6). 
 
 209 
 
 (6) The surplus appearini^ from time to time at the credit of Transfer of 
 the said account beyond what may be required to pay the Guard^an'x 
 charges on the said account, shall be transferred to the account. 
 
 " Suitors' Fee Fund Account." 
 
 (7) Where the Official Guardian has occasion to employ a Coats of soli 
 Solicitor in another County for the purpose of any proceeding ed by^o^ciai 
 in an action, such Solicitor shall be entitled to receive from the Guardian. 
 Official Guardian in respect of the proceeding the same costs 
 
 as if the Solicitor so employed were Solicitor and Guardian of 
 the infant. 
 
 (8) The Official Guardian ad litevi .shall once every six Rptum of 
 months file in the Accountant's office an affidavit, showing all ^'"'^'^' 
 costs recovered by him as Official Guardian ad litem, during 
 
 the six months preceding the making of the affidavit, giving 
 therein the sevei-al amounts received by him, and the name or 
 names of the actions and matters in which the same were re- 
 spectively received by him, together with the date of receipt. 
 
 (9) When a new Official Guardian ad litem is appointed, he Transfer on 
 shall ipso facto become, and be by virtue of such appointment, of*^,B'^*""^"' 
 Guardian ad litem to all infants, in the place and stead of his Guardian, 
 predecessor, with the same duties and powers ; and the latter 
 
 (his executors and administrators, as tlie case may be) shall 
 forthwith deliver over to the new Official Guardian all letters, 
 papers, documents and books in his po.ssession or power as 
 official or other Guardian ad litem oi infants; and the new 
 Guardian shall forthwith communicate his appointment to 
 whomsoever it may concern. 
 
 (10) The Lieutenant-Governor in Council, or the High Court Guardian not 
 may order that the Official Guardian is not to practise as a ^. p™''*'*® '^ 
 Barrister or Solicitor, and in such case he shall not, during the Governor in 
 continuance of his appointment and of such order, directly or Council or 
 indirectly, practise the profession of the law as Counsel or ordera. ° 
 Solicitor, or as a Notary Public, or Conveyancer, or do any 
 
 manner of conveyancing, or pi-epare any papers or documents 
 to be used in any Court of this Province, except in the dis- 
 charge of his duties as Official Guardian, or of any other duties 
 which may be assigned to him by the said High Court or any 
 Division or Judge thereof as the case may be ; and the said 
 Official Guardian in case of his offending in the matter afore- 
 said shall be subject to a penalty of forfeiture of office, and the 
 further penalty of S400 to be recovered by any person who 
 sues for the same by action in the High Court ; and one-half 
 of such pecuniary penalty shall belong tc the party suing, and 
 the other half to Her Majesty for the use of the Province. 
 58 V. c. 12, s. 159 (3-10). 
 
 158. The Accountant shall on or before the 15th day Annual 
 of January in every year, transmit to the Lieutenant- ottlciafGuM- 
 Governor in Council a just, true and faithful statement, show- dian'a ac- 
 counts. 
 
 
 o 
 
r 
 
 210 
 
 Sec. 163. 
 
 Till-: .ILfDlCATUUK ACT. 
 
 Chap. 51, 
 
 ini; the .state of tlio " Account of OtHcial Guardiiui ad litem," 
 upon the .'list tliiy uf tli*.' preceding Decunihor. 5iS V. c. 12, 
 s. lUO. 
 
 Accountant 
 
 of Suptt'MU' 
 
 Court. 
 
 To be a cor- 
 poratiiiii H< le. 
 
 58 V. c 12. 
 
 I5J>. — (I) Subject to fiuy Rules of Court made under the 
 provi.sioiis of sections 122 to 129 of this Act, tlio present 
 Accountant and his successors appointed under .section 
 131 of this Act, shall be the Accountant of the .Supreme Court 
 of Judicature for Ontario and shall be so designated. 
 
 (2) For the |)urpos(\s of holding the nioitgagcs, stocks, funds, 
 securities, aixl all estate tlierein, antl any interest in real and 
 personal estate, ell'ects or property, and of all moneys and 
 effects mentioned and described in sections 1()2 and 1(J3 of 
 The Jmlu-nl II I'c Act. /<S'.9J, t)r in any Rule or Order of Couil, the 
 .said Accountant .shall be a corporation .sole by th(! name of " The 
 Accountant of the 8upi-emeCourt of Judicature for Ontario," and 
 the said Accountant as such corporation sole shall liave per- 
 petual succ(!ssion, and may sue and be sued, may ])lead and 
 be impleaded in any of Her Majesty's Courts in this Province. 
 .58 V. c. 12, .s. 101. 
 
 be vested in 
 officer ap- 
 pointed by 
 Court. 
 
 When then' ia 100. In case of there being at any time no Accountant of 
 K«;uriTi'""to" the Supreme Coul-t, all mortgages, stocks, funds, ainnuties and 
 securities whatsoever theretofore standing in the name of any 
 Accountant, or in his custody or jiower in respect of his ollice, 
 togetlier with all the interest and estate of the said Accountant 
 in the lands and premises embraced in such mortgages or otho' 
 securities, shall become and be, by force of this Act, vested in 
 such other officer as the Supremo Court, by general rule, may, 
 from time to time, direct, subject to the same trusts as they 
 may then respectively be subject to. 58 V. c. 12, s. 164. 
 
 Money under 
 control of 
 Court how to 
 be paid or 
 nvested. 
 
 \i\\. All moneys that become subject to the control and 
 distribution of the High Court or Court of Appeal shall be 
 paid in the name of the Accountant of the Supreme Court, (or 
 if there is no Accountant in the name of such other officer as 
 the Court by general rule may have directed) into the 
 hands of such person or body cor|)orate, or shall be invested 
 in the name of the Accountant {ov, if there is no Accouritant, 
 in the name of such other officer) in the jmblic funds of the 
 Dominion of Canada or of this Province, or in such other 
 securities as the Court may from time to time direct. 58 V. 
 c. 12, s. IG.-). 
 
 the 
 
 Expenses of XiVi. The expenses of the Accountant's office including all 
 oifice""'^''^"* ^ salaries shall be the first charge on the income arising from the 
 fumhs in Court. 58 V. c. 12, s. 166. 
 
 Surplus to 
 be paid to 
 suitor's fee 
 fund. 
 
 I<»J5. The siu'plus income arising from the funds in the 
 High ( 'ourt after payment of the expen.ses of the Accountant's 
 office, and of such interest on the moneys of .suitors as from 
 
Chap. 51. 
 
 THE .lUDICATURE ACT. 
 
 Sec. 163. 
 
 2JI 
 
 time to tiiiio by Rules of Court or othei-wise is directed to bo 
 paid, shull be transferred to the "Suitor's Fee Fund Account." 
 •kS V. c. 12, s. 107. 
 
 H»4. " The Suitor's Fee Fund Account," .shall continue to be Snitm'B fee 
 kept and managed as may from time to time bo directed by 
 tlie Court, and any Divisional Court or any Judge of the 
 Supreme Court of Judicature for Ontario may apply the .same 
 as may be necessaiy for the protection of infants and other 
 persons not xii! jiirii< nv non computes mentis, on whose l)ehalf 
 proceedings may be had in the Court, or may, by the Court, 
 be ordereci to be had in other Courts, and may ai.so, from time Ccitain losses 
 to time, ordei- to be paid, out of the money at the credit of the "^J '^ 
 said account, any sum required to make good a default iirising suitor's fee 
 in res|)ect of suitors' money or S"curitie8 from any mistake, f""d. 
 act or omission of any official of the Court. Such payment is 
 to be without ))re)udice to any personal liability of the otticial 
 or bis sureties in respect of the mistake, act or omission. 
 58 V. c. 12..S. 1C8. 
 
 105. The Lieutenant-Governor may from time to time J"*'P^*=''jy."^ 
 appoint one of the officers of the High Court, or some other ^^'^ 
 competent person, to be called "The Inspector of Legal Offices" 
 to inspect the offices of the Sheriffs, Local Masters, l)e])uty 
 Registrars, Deputy Clerks of the Crown, Local Registrars 
 of the High Court, Registrars of the Surrogate Courts, Clerks 
 of the Peace and County Crown Attorneys and Clerks of the 
 County Courts, in the respective Counties of the Province, and 
 such other officers connected with the administration of jus- 
 tice as the Lieutenant-Governor in Council may from time to 
 time direct. 58 V. c. 12, s. 169. 
 
 i 
 
 Hm. The following .shall be the duties of the Inspector. 
 
 1. To make a personal inspection of the said offices and of 
 the books and Court |)apers belonging thereto respectively ; 
 
 2. To see that proper books are provided, that they are in 
 good order and condition, that the proper entries and records 
 are made therein in a proper manner, at proper times and in 
 a proper form and order, and that the Court papers and docu- 
 ments are properly classified and preserved; 
 
 3. To ascertain that the duties of the officers are duly and 
 efficiently performed ; 
 
 4. To see that proper costs and charges only are allowed or 
 exacted ; 
 
 ■ '. To ascertain that proper secui'ity has been given by any 
 officer required by law to give security ; 
 
 Duties of 
 Insfjector. 
 
 o 
 
 ■fl* 
 
212 
 
 Sec. 170 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 6. To ascertain whether uniformity of practice provaiLs in 
 the several offices of the High Court and in the County and 
 Surrogate Courts ; 
 
 7. To report upon all such matters to the Lieutenant- 
 Governor. 58 V. c. 12, s. 170. 
 
 InqtiirieH by 
 Inapt-ctor. 
 
 IftT. When the Inspector has occasion to institute an 
 inc[uiry into the conduct of any officer in relation to his 
 official duties or acts, it shall be lawful for the said 
 Inspector to require such officer, or any other person or ]iersons, 
 to give evidence on oath ; and for this purpose the Inspec- 
 tor shall have the same power to summon such officers and 
 other persons to attend as witnesses, to enforce their attend- 
 ance and to compel them to produce books and documents and 
 to give evidence, as any Court has in civil cases. 58 V. c. 12, 
 
 H. 171. 
 
 Books, etc., 
 be produced 
 for inspection 
 
 168. The said several officers shall, as often as required by 
 the Inspector, produce for examination and in.spection all 
 books and documents which are required to be kept by them, 
 or which may hereafter be required to be kept by them ; and 
 shall report to the Inspector all such matters relating to any 
 cause or proceeding as the Inspector shall require. 58 V. c. 12, 
 ,s. 172. 
 
 [As to authority of Inspector to direct law stamps to be 
 affixed to proceedings not properly stamped, see Cap. 35, sec. 
 
 U.] 
 
 Stenographic 169. The stenographic writers heretofore appointed, or 
 writers. ^^^q gjjall hereafter be appointed by the Lieutenant-Gover- 
 
 nor to report trials at sittings of the High Court or of a 
 County Court, shall be officers of the Court to which they are 
 appointed, and shall hold office during the pleasure of the 
 Lieutenant-Governor, and shall perform such other duties as 
 may be assigned to them by Rule of Court, or order of the 
 Lieutenant-Governor in Council. 
 
 Reporter's 
 oath. 
 
 ITO. Every such reporter shall take the following oath 
 before one of the Judges of the Court to which he is appointed, 
 and the same shall be filed : 
 
 mi^i 
 
 I, (A. B.) do solenmly and sincerely promise and swear that I will 
 faithfully report the evidence and proceedings at the trial in each case in 
 which it may be my duty to act as shorthand reporter. So help me God. 
 
 68 V. c. 12, s. 174. 
 
 mxi 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 171 (I). 
 
 ■213 
 
 111.— (1; To provide a fund to enable a reduction ^o he ^^^^'^v^y^^^^^ 
 made to litigants for copies of evidence taken in Hhorthand at ^tfons for 
 trials or references, a fee of $1 shall be paid in every civil case *"»•• 
 in the High Court of Justice entered for trial to the officer of 
 the Court who enters the same, who shall keep a list of 
 such causes duly entered in a book to be kept by him for the 
 purpose, and who shall within forty-eight hours after the closing 
 of the sittings of the Court make a return to the officer to be 
 appointed for that purpose by the Lieutenant-Governor in 
 Cfouncil of the actions so entered for trial, and of the money so 
 paid thereon, and shall certify that the sum therewith returned 
 is the full amount so paid to him on account of the cases 
 entered at such sittings. 
 
 (2) The officer appointed shall keep an account of the said ^*'°'^*^'* 
 moneys, under the head of Shorthand Reporter's Fund, in a fund, 
 book to be kept for the purpose, and the said moneys shall be 
 paid out and applied in connection with such reporting in such 
 manner as the Lieutenant-Governor in Council may from 
 time to time by order provide. 58 V. c. 12, s. 131 (1) ; c. 13, 
 s. 40 (1); 59 V. c. 18, Sched. (21). 
 
 1 T/J.— (1) The Supreme Court may, from time to time, under ^{PP"'"*," ®" 
 the seal of the Court, appoint, and at discretion remove, special examiners, 
 examiners for the purpose of taking evidence of parties and 
 witnesses, and the examiners so appointed shall have all the 
 powers formerly possessed by Master's Extraordinary and 
 Examiners. 58 V. c. 12. s. 175. 
 
 the Number 
 limited. 
 
 (2) There shall be but four special examiners at or in 
 City of Toronto, besides the officer or clerk at Osgoode Hall 
 mentioned in subsection 4. 60 V. c. 14, s. 56 (1). 
 
 (3) The Lieutenant-Governor in Council may make regula- ^*^®* ?°'. . 
 tions fixing the fees and charges of and payments to stenogra- 
 phers and others entitled to take examinations for taking 
 examinations for discovery or cross-examinations in the High 
 Court and County Court, and for copies of such examinations 
 
 or cross-examinations. 58 V. c. 12, s. 131 (2) ; c. 13, s. 40 (2). 
 
 (4) No officer or clerk at Osgoode Hall who is in receipt of a Salaried 
 salary as such officer or clerk from the Province shall act as a 2*^ Ma\\ 
 special examiner for fee or reward ; but the fees payable in not to take 
 respect of such examination or for copies or certificates thereof ne^/fOThlsown 
 or connected therewith shall be payable in stamps subject to use. 
 the provisions of The Act respecting Law Stavips, and not Rev. Stat, 
 otherwise, and no such officer or clerk whose salary is paid as 
 aforesaid shall hereafter be eligible for appointment as a 
 special examiner. In the event of a vacancy occurring in the 
 
 .0 
 
 c. 2.5. 
 
214 
 
 Sec. 180(1). 
 
 THE J'JPIcATUllE ACT. 
 
 Chap. 51. 
 
 said office of examiner there shall thereafter be but thrije 
 special examiners in the said city besides such officer or clerk. 
 GO V. c. 14, s. .5G (2). 
 
 I^JJ. When an examination is taken by a stenographer or 
 othci- person who is not an exaniiner, it shall be taken in all 
 CiiHs ill the presence of the examiner. 60 V. c. 14, s. 60. 
 
 E.xaminptions I 'J 4. Nu special examiner shall solicit or make request from 
 not to bo anv suitor, solicitor, or other person, or offer inducements to 
 
 Holicited. , • .', • .• i 1 1 !• 1 • 1 11 
 
 ha^•e S|)ecml examniations takiii before ium, nor sluin auy one 
 
 do so on his behalf with his knowledge or assent, on pain of 
 
 forfeitui-e of office. GO V. c. 14, s. .57. 
 
 Fern of 
 examirers. 
 
 Appointmpnt 
 of special 
 e.xaminers, 
 pro tcm. 
 
 A<liiiini>-tra- 
 till)) of oaths. 
 
 1 UTt. The Lieutenant-Governor in Council siiall lix a.scliedule 
 of fees to be char<i;ed and taken by special examiners, and may 
 make ru^es and r(>!^ulntions in resp(x>t thereof; and no other 
 fees or charjies than those fixed by the said schedule shall be 
 charo;ed or taken. GO V. c. 14, s. 58. 
 
 I S4». Where it appears to the Lieutenant-Governor in Coun- 
 cil that the Local Kejj^istrar or Deputy Cleik .»f the Crown or 
 C!e)k of the Con:ity Court elsewhere than in Toronto, is infirm 
 or ill, or is absent on leave, or is otherwise unable or unfi<^ to 
 act personally as special examiner, tlie Lieutenant-Governor in 
 Council may "ppoint the shorthand v>/riter for the Cv.,iinty 
 Court, or some (>ther ethcieut person temporarily or otherwi.se 
 to act as such special examine!', instead of the said Iiocal 
 Registrai", Deputy Clei'k of the Ci'own, or Clerk o*' the County 
 Court. GO \. c. 14. s. 59, 
 
 I'Jl. Any officer of the Supreme Court, the Court of Ap- 
 peal or the High fjourt shall, for the purposes of any pro- 
 ceedings directed by the Court to be taken before him, liavo 
 full powei t" administer oaths, to take at^lavits, to receive 
 affirmations !iud to exar.ilne pju-ties and witness <is as the Court 
 may direct. 58 Y. c. 12, .s. 17G. GO \ . c. 15, Sclitl. A (67)- 
 
 Slipriffs, Gaol- I 5 S. Sheritis, Deputy Sheriffs, Gcaolers, Constables and 
 
 om'c^rKrf^die'' ^'^^'^^^ peace officers, shall aid, assist and obey the Court and the 
 
 Court. Judges thereof respectively in the exercise of the jiu'i.sdiction 
 
 conferred by this Act, and otherwise, whenever l)v any general 
 
 or othei' oi'diU'of the Court or by order of a Judge thereof, 
 
 re(|uired .so to do. 58 V. c. 12, s. 177. 
 
 Gaoistobe I 'JO. All gaols in Ontario shall be piisons of the High 
 
 prinms <,Ethe CoUl't. 58 V'; C. 12, ,s. 178. 
 Court. 
 
 Salaries, ttr. |S0.— (1) TluMv shall be paid out of the Consolidated 
 Revenue Fund of tliis Province as and for the salaries of 
 ofHcers of the said Courts, who arc not paid by fees or other- 
 wise, such siuns as the Legislatm-e may ♦Vom time to time 
 appropriate for sueh purpose. 
 
Chap. 51. 
 
 THE .lUniOATURE ACT. 
 
 Sec. 180(2). 
 
 215 
 
 (2) The .salaries of all officers of the Court which are pay- 
 ahlu out of the Consolidated Rmeuue Fund shall be paid 
 monthly, but the [)aynient to Vie made in each ca.se on the 
 iirst day of pay:iient which happens after the right thereto 
 iicc'i-iics, .shall be a ratable proportion of a month's salary, 
 accordinir to the time then elapsed since the accrual of the 
 right; and in case of a vacanc}', the person who vacates the 
 oHlce, his executors or administi-ators shall be entitled to a pro- 
 portional part of his .salary according to the time elapsed 
 bitween the vacancy and the last payment. 58Y. c. 12, 
 s. 179. 
 
 i-h 
 
 IHI. llnle,ss special! v ai^'^horized, neither the blaster ^"*'^'" ^^ 
 \\\ Urdiiiaiy, tJie Clerk ol tl>e Crown and rhvns, tlie Master in t.ake fees for 
 ('hamber.-s, the Registrars, nor any of their deputies, nor the *'"''•'""■" ""<'■ 
 Process Clerk, nor the Clerk in Chambers, nor the Accountant, 
 nor an}' of their clerks, shall take lor his own benefit, 
 directly or indirectly, iiny fee or emolument, save the 
 salary to which he may be entitled by law; but the like sums 
 and fees hei'ctofore payable on pi'occedings in the offices of the 
 said (jflicers shall continue to be payal)le ; and all such fees 
 
 sh;dl form i^art of the Consolidated Kevenue Fund of the Pro- „ u. ^ 
 
 11111 1 1 • t 1 • i. i ii • • *"'^'- ^^^^- c- 
 
 vuice, and shall be payalde iii stamps, snbjeet to the provisions 25. 
 
 of The Ad rcH/xiciliv/ Lnw l<>l<iAnpx. 58 V.c. 12, s. 180 (1) ; 
 
 50 V. c. 18, Sched. (31). 
 
 IH'5. The fees payable on all writs and process issued out Fees on wnts 
 of the Central O'lic'e at Toionto .shall be payable in .stamps, =*"^' p'"""'"'*- 
 subject to the )•. visions of The Act respect incj Low Stamps. ^^ g,,^ ^ 
 5S V. c. 12, s. Ls \ part : .'.<) V. e. 18, Sched. (82). 26. ' ' ' ' 
 
 IHll. In addition to all fees, otlierwise authorizeil to be l"'""" "n cei- 
 1-1 I- • ii IT 1 /I i ii 1' 11 • i! tain urocoeii- 
 
 ievieil on ]»roceedings in the Higli Court, the tollo wing tecs ingc in High 
 
 shall be payable to the Crown in stamps, subject to the pro- 2'~'"'*a 
 
 * ' r r^ii At ±' i Lti ' H<*V. Stilt, c. 
 
 Visions ot J /le Act respect tnfj Lav NampK. 25. 
 
 Oil oveiy writ i)f suiiinions, oapiiis oi sii1)|iil'1i;v, iiiid ini every nthov ? c. 
 
 v.ritoi other (loLMinu'iit (if wliat iialuii' and (lesoriptioii .soever, 
 
 li.avinif tlio seal "f tlie diurt iitlixod thereto .')() 
 
 Oh e'ery judgment duered (10 
 
 Or, every eei'titieate of .ictioii instituted, judgment or deeretal 
 
 ■ )i'der nl.^de .-)l) 
 
 On the settin'4 down on the jjaper for argnnient of every .speeial 
 
 case, point.s i'e.ser\ed, s|iecial verdict or apjieal ease MO 
 
 Oil eiiterintj every ai'tioii for trial or aHHCHsnient :2 00 
 
 On every rule or order of Court issued :iO 
 
 On tuxiition of every bill of costs L!0 
 
 ..N V. c. 12, s. 183. 
 
 IS4 In addition to all fees otl lor wise authorized to be ?^""' "»'=*''": 
 Icvii'd on proceedings in casi's brouglit to the Court of Appeal in^" in Omirt 
 from the High Court, the following fees shall be payable to ?/^^'''"'''^'' 
 the Crown in stamp.s, .subject to the provisions (if Tlie Act 25.^' 
 renpeofing La.'ic Stmnpts. 
 
 
IT' 
 
 216 
 
 Sec. 188. 
 
 THE JUDICATURE ACT. 
 
 Chap. 51. 
 
 On every appeal entered $4 00 
 
 On I'vpry judgment, decree or order of the Court passed and 
 
 entered 2 00 
 
 58 V. c. 12, s. 184. 
 
 LOCAL JUDOES OF THE HIGH COURT. 
 
 County Court 185. Except in the County of York, the Judges of 
 Kf Judged the several County Courts shall be Judges of the High Court 
 of High Court, for the purposes of theh- jurisdiction in actions in the High 
 Court ; and in the exei ^e of such jurisdiction may be styled 
 " Local Judges of the High Court," and shall, in all causes and 
 actions in the High Ccurt, have, subject to the Rules of Court, 
 power and authority to do and perform all such acts, and 
 transact all such business in respect to matters and causes in 
 and before the High Court as they are by Statute or Rules of 
 Court in that behalf from time to time empowered to do and 
 perform. 58 V. c. 12, s. 185 (1). 
 
 TRANSFERRING CAUSES FROM COUNTY OR DIVISION COURTS 
 TO HIGH COURT. 
 
 Transfer to 186. I"'' «ny case in a County or Division Court where 
 
 ^om Count ^^^ defence or counterclaim of the defendant involves matter 
 and Division beyond the jurisdiction of the Court, the High Court or any 
 Courts. Judge thereof, may on the application of any party to the pro- 
 
 ceeding, order that the whole case be transferred from such 
 Court to the High Court, and thereupon all the proceedings 
 in such case shall be transmitted by the clerk or other proper 
 officer, of the County or Division Court to the said High 
 Court ; and the same shall thenceforth be continued and pro- 
 secuted in the High Court as if it had been originally com- 
 menced therein. 58 V. c. 12, s. 186. 
 
 MISCELLANEOUS. 
 
 181. — (1) Every Order in Council determining the com- 
 mutation allowance or the salary of any Judge, Official Guar- 
 dian or other officer under the authority of this Act, shall be 
 laid before the House of AH.sembly forthwith, if the Legislature 
 is in session at the date of the order, and if the Legislature is 
 not then in session, the order shall be laid before the said 
 House within the first seven days of the session next after 
 the Order in Council is made. 
 
 (2) In case the Assembly at the said session, or if the ses- 
 sion does not continue for three weeks after the said order is 
 laid before the House, then at the ensuing session of the Legis- 
 lature, disapproves by resolution of such Order in Council, 
 either whol'y, or so far as relates to any of the persons therein 
 named, the Order in Council, so fur as so ilisapprovnd of, shall 
 have no efiect from the time of such resolution being pas.sed. 
 58 V. c. 12, s. 1&7. 
 
 Saving aa to ' ^^- This Act shall not affect the issue of any Commissions 
 Oojninwgions of Assize, Nisi Frius, Oyer and Terminer, Gaol Delivery, or 
 
 of Assize, etc. "^ -^ 
 
 Order in 
 Council as to 
 allowances 
 and salaries 
 subject to 
 ratification by 
 Legislative 
 Assembly. 
 
 Disapproval 
 of order by 
 Assembly , 
 
Chap. 51. 
 
 THE JUDICATURE ACT. 
 
 Sec. 188. 
 
 217 
 
 other Commission for the discharge of civil or criminal busi- 
 ness on circuit or otherwise ; or the authority of a Judge or a 
 retired Judge of any of the Superior Courts, or a Judge of a 
 County Court, or one of Her Majesty's Counsel learned in the 
 law, to preside without any Commission at any Court of 
 Assize, Oyer and Terminer, and General Gaol Delivery, or at a 
 Court held under this Act in the exercise of the jurisdiction 
 now belonging to the Courts of Assize, Oyer and Terminer, 
 and General Gaol Delivery, or the authority of any Judge or 
 retired Judge of a Superior or County Court, or Counsel 
 learned in the law, to hold any sitting for the hearing of 
 causes ; and any such Judge or Counsel shall after the com- 
 mencement of this Act have the same authority to preside as 
 aforesaid, or to hold any sitting of the High Court for the 
 hearing of causes in the High Court, which such Judge or 
 Counsel has to preside at Courts of Assize, Oyer and Terminer, 
 and General Gaol Delivery, and any such Judge or Counsel 
 when presiding as aforesaid with or without a Commission, 
 or when holding any sitting as aforesaid, shall be deemed to 
 constitute a Court. 58 V. c. 12, s. l88. 
 
 1 80. Every person shall have access to and be entitled All books in 
 to inspect the several books of the High Court and of the j^d'^^n"'."' 
 County Courts, containing records or entries of the writs etc., are 
 issued, judgments entered, and chattel mortgages and bills of f"*^'' j^ '" ''® 
 sale filed ; and no person desiring such access or inspection inspection, 
 shall be required, as a condition to his right thereto, to furnish 
 the names of the parties or the style of the causes or matters 
 in respect of which such access or inspection is sought ; and, 
 the Clerk of the Crown and Pleas, Registrars, Deputy Clerks 
 of the Crown, Deputy and Local Registrars of the High Court 
 and all Clerks of the County Courts of the Province respect- 
 ively, shall, upon demand or request, produce for inspection 
 any writ of summons or copy thereof, and any judgment roll, 
 or chattel mortgage, or bill of .sale so issued, entered or tiled in 
 their respective offices, or of which records or entries are, by 
 law, required to be kept in such several books of the High 
 Couri and County Courts respectively. 58 V. c. 12, s. 189 ; 
 5f? V. c. IS, Sched. (33). 
 
 190. The fees payable in respect of such inspection of Fees on in- 
 booki shall be twenty-tive cents as for a general search, and "P^^^t'on. 
 ten ceuiiS for each writ of summons, judgment roll, chattel 
 mortgage or bill of sale so inspected, and ten cents per folio 
 shull also be payable for all extracts, whether made by the 
 person who makes the search or by the officer. 58 V. c. 12, 
 s. 190. 
 
 101. Nothing in this Act shall afl'cct the practice or pro- This Act not 
 cedure in criminal niattei*s, or matters connected witii '^".»Hply ^^ 
 Dominion controverted elections. 58 V. c. 12, s. 191 ; 59 V tonTorDomin- 
 
 C. 18, Sched. (35). »"«> election* 
 
 
21 S 
 
 THE .lUDICATUUE ACT. 
 
 NOTES. 
 
 i 
 
 111 l.SSI tlic ('(iiiil (if i,>ucfii"s Heiicli. the Cimrl of ('oiiiinini I'Iims iind tlio 
 Coiiit of Clmncory wuie loiisolidiitod into one Court, ciilkMl tlic Hij^li (.'ouit of 
 .histico, and the suviTal jurisdictions wliiuli had thuivtofoif liciMi vcsti'd in tlic 
 several courts wci'c confciicd upon the consoUdatiMl Court, 'riic Hij,'i\ Court 
 of .lustice and the Couil of .\))))cal constitute the Supreme Court of .ludiiatnrt" 
 for Ontario. 'I'iie Court might moie properly ho called the Su))rcuu' Council 
 of ■ludicatiuc R. v hunting (1S84) 7 d. R. 1 IS. 
 
 The main ohjcct of the Act was to assimilate the transaction of K(|uity 
 liusincss, and ("imnu ;n Law husiness liy ditlerent Courts of .Fudicature, It has 
 sometimes heen inaccurately called " the fusion of. Law and K(|uily " ; hut it 
 was not any fusion or uiything of the kind : it was the vesting in one triliunal 
 the administiiition of law and eijiiity in evei-y cause, action or di.-^pute, which 
 should come liefore that trihunal. Then as to that very small numlier of cases 
 in which tliere was an actual conflict it was decided tlia' in all cases where 
 the rules of Ivpiity and Law were in conHict the rules of Ivjuity siiould pre- 
 vail. Tlial was the mode of administering the (•omoined jiuisdiction, and that 
 was the meaning of tlie act. To carry that out, the Legislature did not 
 (create a new jurisdiction, hut simjily transferred the ohi jurisdictions of the 
 CVmits of Law and Kiplily to the new trihunal and then gave directions to ihe 
 new 'rihunal as to the mode in \\ hich it should adininistei' the cojuhincd juris- 
 dictions ; Salt V. ('ooi)cr llSNit) Hi Cli. ]). 44. 
 
 To dismiss the several scitions of the act would occupy more space than 
 can he devoted in th" jnesent work. Thr reader is leferrecl to ti:e e.Kliaustive 
 annotation of llolmsted it Langton. and to Siiom's Anuiinl Practice, ISiltl, nid 
 Wilson's Judicature Acts. 
 
CHAPTER 55. 
 
 An Act respecting the County Courts. 
 
 Short title, s. 1. 
 
 Si iLK OF THE COUUT.S, S. 2. 
 
 Judges, ss. 3, 4. 
 Clerks, ss. 5-12. 
 
 Sl'ECIAL EXAMINERS OF Hl(iH CoURT 
 
 to be officers of county 
 
 Courts, s. 13. 
 Sittings, .ss. 14-21. 
 JrRisDicTio.v, Hs. 22-29. 
 UiniovAL OF Actions into High 
 
 CoiRT, ss. 30-34. 
 
 Co.sT,s IX Actions Removed, s. 35. 
 Venue for certain actions, s. 30. 
 Pleading and Practice, ss. 37-41. 
 Costs where no jurisdiction s. 42. 
 Execution, ss. 43, 44. 
 Power to enforce Rules, s. 45. 
 Accounts and Inquiries, ss. 40-49. 
 Appeals, ss. 50-57. 
 RuLE.s OF Law, s. 58. 
 Rules ■ >f Court, s. 59. 
 I Tariff of Costs, s. 60. 
 
 HER MAJESTY, Lj- and with tlic advico and consent of 
 the Lei;i.slative A.ssenibly of the Province of Ontario, 
 cnact.s as follows : — 
 
 1. Tliis Act niav he cited as " The County Courts Act." R. S. O. Short title. 
 1S87. c. 47. s. 1 ' 
 
 ?3. There shall he in every countv or union of counties a Existing 
 Court of Record, to he stykHrthe County Court of the County ^^^^^ ««"- 
 of (or United Counties of as the case 
 
 may be) ; and the County Courts already established under 
 such names respectively, and all existing commissions, Judges 
 and officers of such County Courts shall continue, sul ject to 
 the provisions of tliis Act. ' R. S. 0. 1887, c. 47, s. '2. 
 
 JUDGES. 
 
 ii. The County Court in every county shall be presided over Judges. 
 
 by the Judge or Junior or acting Judge or De])uty Judge as 
 
 providecl by Tke Local Courts Act. R. S. O. 1887, c. 47, s. 3 ^^': «»»»• 
 ' "^ ' c. 54, 
 
 [As to Judges being Local Judges of the High Court. See 
 Gap. ol, sec. 18o ; and as to Judges exercising authority oj 
 Master hi Chambers and local Masters see Consolidated Rules 
 of Su2^renie Court of Judicature. 
 
 •t. In case of the illness or absence of the Judge of a County ^j'"^*""' 
 Court, such ( 'ounty Court may be jiresided ovei- by a Judge of County 
 any other County Court in the Province, or bj-'one of Her 'J'"^^'"- 
 
 [219] 
 
220 
 
 Sec. 10. 
 
 COUNTY COURTS. 
 
 Chap. 55. 
 
 Majesty's Counsel learned in the law appointed for Upper 
 Canada, or for the Province of Ontario, upon such Judge or 
 Counsel being requested so to act by the first mentioned Judge. 
 57 V. c. 20, 8. 9, 
 
 CLERKS. 
 
 The Lieuten- 5. The Lieutenant-Govemor shall from time to time appoint, 
 ant-Governor under the great seal, a Clerk to every County Court, to hold 
 o°erk^*° office during pleasure. R. S. O. 1887, c. 47, s. 4. 
 
 Clerks to Rive 6. Every Clerk of a County Court shall give security for 
 secun y. ^-^^ ^^^ performance of the duties of his office, in such sum 
 and with so many sureties, and in such mt^nner and form as 
 the Lieutenant-Governor directs. R. S. 0. 1887, c. 47, s. 5. 
 
 lilt 
 
 ■ i ... 
 
 Place of office. 7. The Clerk of every County Court shall keep his office 
 in the Court House, or if there be no room therein, then in such 
 place within the county town, as the Judge directs ; Provided, 
 
 Proviso. however, that the Clerk of the County Court of the County 
 
 of Essex, may keep an office in some convenient place in 
 the City of Windsor, in the County of Essex, subject 
 to such arrangements as the County Council of the County of 
 Essex may assent to, and subject also to the approval thereof 
 by the Lieutenant-Governor in Council. R. S. 0. 1887, c. 47, 
 s. 6. 
 
 Office hours. 8. Subject to Rules of Court as to office hours during vaca- 
 tions and in Toronto on Saturdays, the office of the Clerk of 
 the County Court, shall be kept open from 10 o'clock in the 
 forenoon until 4 o'clock in the afternoon, except upon legal 
 holidays or other special days appointed by an Act of the Legis- 
 lature. 60 V. c. 3, 8. 3 ; c. 14, s. 89. 
 
 Clerktorender 9. The Clerk of every County Court shall, from time to time 
 County Crown *^ often as required so to do by the County Crown Attorney of 
 Attorney. his county, and at least once in every three months, deliver to 
 him, verified by the affidavit of such Clerk, sworn before the 
 Judge ^r a Justice of the Peace of the county, a full account 
 in writing of all fines levied by the Court. R. S. 0. 1887, 
 c. 47. s. 7. 
 
 [As to return of fees by County Court Clerks see Cap. 16, 
 sec. 29, antZ as to payment of proportion to Provincial Treas- 
 urer see Cap. 18.] 
 
 I' 
 
 10. The Clerk of every County Court shall tax costs, subject. 
 , the event of a dispute arisintr at taxation, to an anneal to 
 
 ClerktotaK ^ ^ , — „, j 
 
 cr«t8. jjj j.}^Q event of a dispute arising at taxation, to an appeal to. 
 
 the Judge of the Court. R. S. O. 1887, c. 47, s. 8. 
 
Chap. 55. 
 
 COLNTY COURTS. 
 
 Sec. 11. 
 
 221 
 
 16. 
 reas- 
 
 11. No clerk of a County Court shall, for fee or reward Clerk not to 
 draw or advise upon a chattel mortgage or other paper on*documentB* 
 or document connected with the duties of his office and for 
 which a fee is not expressly allowed by the tariff in that 
 behalf. R. S. 0. 1887, c. 47, s. 9. 
 
 13. — (1) In the event of the death, resignation or removal Clerk of ihe 
 of the ClerK of a County Court the Clerk of the Peace for the JfXrin'* 
 County shall, ex-officio, be Clerk of the County Court until case of the 
 another person is appointed and assumes the duties of the thicomity °' 
 office, and every Clerk of the Peace while Clerk of the County Court cierk. 
 Court as aforesaid shall, except in the County of York, be 
 also ex-offi,cio Deputy Clerk of the Crown and Registrar of 
 the Surrogate Court, or in case the said Clerk of the County 
 Court was Local Registrar, the said Clerk of the Peace shall, 
 while he holds the said office, be ex-officio Local Registrar ; 
 Provided, however, that this enactment as to the Clerk of the Proviso. 
 Peace being ex-officio Registrar of the Surrogate Court, shall 
 not apply to any case where at the time of the death, resigna- 
 tion or removal of the Clerk of the County Court, he did not 
 hold the office of Registrar of the Surrogate Court. R. S. O. 
 1887, c. 47, s. 10 (1) ; 60 V. c. 15, Sched. A (12). 
 
 (2) The Clerk of the Peace shall add the words jy'^o tern. 
 when affixing his official designation as Clerk of the County 
 Court, Deputy Clerk of the Crown, Local Registrar or Regis- 
 trar of the Surrogate Court to his signature in any writs, 
 rules, grants or orders, signed by him under the provisions 
 of this section. R. S. 0. 1887, c. 47, s. 10 (2). 
 
 SPECIAL EXAMINERS. 
 
 ( 13. All special examiners of* the High Court hereto- special ex- 
 ^ fore or hereafter appointed, sliaJl be officers of the several aminera of 
 ] County Courts of the Province and shall possess like powers in be'officers'of'" 
 County Court cases, as those now possessed and exercised by County Court. 
 ; them in cases in the High Court. - - - -^ 
 
 I ''I 
 I 1 
 
 
 .r'3-^ 
 
 R. S. 0. 1887, c. 47, s. 11. 
 
 SITTINOS. 
 
 14. — (1) In lieu of terms, the several County Courts shall in gittijiffg ;n 
 each year hold four quarterly sittings, which (except in the lieu of terms. 
 County of York), shall commence respectively on the .second 
 Monday in the month of January pnd the iirst Monday in the 
 months of April, July and Octobei' in each year, and end on > 
 
 the Saturday of the same week, unless extended by order of 
 the Judge. 
 
 (2) The said quarterly sittings of the County Court of the 
 County of York shall commence on the second Monday in 
 January, June and October, and the first Monday in April in 
 each year : and shall end on the Saturday of the same week 
 unless extended by arder of the Judge. 
 
222 
 
 Sec. 20. 
 
 COUNTY COURTS. 
 
 Cliap. 55 
 
 Trial sittinpfs 
 of County 
 Courts. 
 
 Rev. Stat. 
 c, 54. 
 
 In County of 
 York. 
 
 (ii) It shall not be necessary for the Sheiiff or his officers to 
 attend the said fiuarterly sitting.s of the County Court. 
 R. S. O. 18.S7, c. 47, s. 12. 
 
 15. Except in the County of York, and subject to the 
 provisions of section 21 of the Loral Courts xict, sittiny-s 
 of the said County Courts, for the trial of issues of fact and 
 assessment of damages, shall be held semi-annually, to com- 
 mence on the second Tuesday in the months of June and 
 December in each year. R. S. O. 18h7, c. 47, s. 18 (1). 
 
 10. The County Court of the County of York shall hold 
 four such sittings in each year, to commence respectively on the 
 fir.st Tuesday in the months of December and March, ami on 
 the second Tuesday in the months of Mav and 8ept(?mber in 
 each year. R. S. O. 1887, c. 47, s. 13 (2). " 
 
 County Court 17 Except in the County of York, there shall be sittings 
 
 out a'^ur^'lt" *^^' ^^^^ several County Courts of this Pro\ince on the tlrst Tue.s- 
 
 April iind day i}i the months of April and October in each year, whereat 
 
 October. j^j] js.sues of fact in any civil action brought or pending in the 
 
 Court wherein the sittings may be, and exery assessment and 
 
 inquirj'^ of damages in such action may be heard, tried and 
 
 assessed by the Judge of such Court without the intervention 
 
 of a jury, in those cases where no jury is reciuired. R. S. 0. 
 
 1887. c. 47, s. 14. 
 
 Sittings on 18. The sittings of the County Courts for the trial of jury 
 
 first day to and non-jury cases shall not open earlier than one of the clock 
 one o'clock in i^ the afternoon on the first day of the sittings, but this shall not 
 the afternoon, prevent a non-jury trial being begun before one of the clock 
 with the consent of the partes. 57 V. c. 20, s. 12. 
 
 Power to hold 1^- I" addition to the x'egular sittings of the several 
 additional County Courts, the Judge of eveiy County Court may, at such 
 •ngs- times as he appoints for the purpose, hold additioTial sittings of 
 
 such Court for the trial of i.ssues of fact to be tried in such Court 
 by a Judge without a jury ; and he shall hold such sittings as 
 often as mav be recjuisite for the due despatch of business. 
 R. S. 0. 1887, c. 47, s. 15. 
 
 Concurrent 
 sittings for 
 trial of jury 
 and uon-jury 
 caaea. 
 
 20. While sittings of the County Court of any County 
 which has a Senior and Junior Judge, are being held for the 
 trial of issues of fact and assessment of damages, the Judges 
 of the said Court, or any two persons autlu)riz(>d to hold the 
 sittings of such Court, may, in case the Cenei'al Sessions of 
 the Peace have been adjoui'no<l or have tei-minated, sit .sepa- 
 rately, ono for the trial of causes where a jury is re(|uired, and 
 the other for the trial of causes to be tried without n jiny. 
 R.S. O. 1887, c.47, s. 16 
 
Chap. 
 
 00. 
 
 COUNTY COIUTS. 
 
 S.-C. 21(1). 
 
 2.':{ 
 
 ai.— (1) WI 
 
 ^Vhero, from illness or froiii other eusiiulty, the Adjourninfr 
 Jinl<;'o who is to liold tlie Sittinjis of the County Court is owi'nK'to '^"" * 
 una! lie to hold the same at the time ap)iointe<i therefor, the ''•nea* of 
 Sherilf of the County, or in his absence his Deputy, may ad- " ^^' ^ "' 
 jourii hy his pnjclamntion the said Court to any liour on the 
 follosvinn' day, to he hy him named, and so from day to day 
 until the Judge is alile to hold such Court, or until he receives 
 other directions from tlie Judge or Pi'ovincial Secretary. 
 
 (2) The Slierifl' shall fortliwith notify any adjournment to Provincial 
 the Provincial Se-cretary, for tlu; information of the Lieutenant- be^notftteil " 
 Governor, R, S. O. 1887, c 47, .s, 17. 
 
 jinu.sDicTioy. 
 
 y 
 le 
 
 ('OS 
 
 ic 
 of 
 
 2*i. Except in the cases of actions in which, by .section 27 Mutttranot 
 of this Act, or by any other Act jurisiiiction is conferred upon lurisciktii'tTof 
 County Courts or a Judge thereof, tlie said Courts .shall not County 
 
 J^tM> 
 
 Courta, 
 
 have cognizance of any action : 
 
 1. In which the title to land of a gi-eatcr value than .$200 
 is brought in (juestion ; or 
 
 2. Ill whiujithe validity (jf any devi.se, bei|Ues t or limittition 
 exceeding .'?zDU under any will or settlement is rlisputed, nor 
 wliere the a.ssets of the estate or fund out of which the amount 
 in tjuestion is payable exceed.s Sl^OOO ; or 
 
 3. For lilx'l and s land er ; or 
 
 4. For crimin al con versation or seduction ; or 
 
 '). Against a Justi ce of the Peac e for anything done by him 
 in the execution of his office, ii he objects thereto. 5'J V. c. 19, 
 .«. 1. 
 
 Uli. Subject to the exceptions contained in tlie last preced- Jurisdiction 
 ing section, the County Courts .shall have jurisdiction ; aiiowe . 
 
 1. In all per.s(mal actions whe',' the debt or damages claimed 
 do not exceed the sum of 8200 ; 
 
 2. In all causes and actions relating to debt, covenant and con- 
 tract, to SGOO, where the amount is liipiidated or ascertained 
 by the act of the parties or by the signature of the defendant ; 
 
 3. To any amount on bail-bonds given to a Sheriff in any 
 easy in a County Court, whatever may be the penalty ; 
 
 4. On recognizances of bail taken in a County Court, what- 
 ever may be the amount recovered or for which the bail there- 
 in may be liable ; 
 
 5. In actions of replevin where the value of the goods or 
 other property or effects distrained, taken or detained, does 
 
 not exceed the sum of S200, as provided in 'The Replevin Act. Rev. Stat, 
 
 6. In i/iterpleader matters, as provided by the rules respect- 
 ing interpleader; R. S. O. 1887, c. 47, s. 19; 59 V. c. 19, s. 2. 
 
 c. 66. 
 
224 
 
 Sec. 25 (1). 
 
 COUNTY COURTS. 
 
 Chap. 55 
 
 f" 
 
 liH|: 
 
 Where imrties 7 In any cause or action relating to debt, covenant and 
 """* •" contract where tlie amount is liquidated or ascertained by the 
 act of the parties or by the signature of the defendant, when 
 the jjlaintifi" and defendant, before the issue of the writ, agree 
 by memorandum in writing signed by them and tiled upon 
 the application for the writ, that the Court shall have power 
 to try the action ; 
 
 8. In actions for the recovery of or for trespass or injury to 
 land where the value of the land does not exceed S200 ; 
 
 9. In actions by persons entitled to and seeking an account 
 of the dealings and transactions of a partnership, the joint 
 stock or capital not having been over $1,000, whether such 
 account is sought by claim or counter claim ; 
 
 10. In actions by a legatee under the will of any deceased 
 person, such legatee seeking payment or delivery of his legacy 
 not exceeding $200 in amount or value out of such deceased 
 person's estate not exceeding $1,000 ; 
 
 11. In actions by a legal or equitable; mortgagee whose 
 mortgage has been created by .soma instrument in writing, or 
 a judgment creditor, or a person entitled to a lien or security 
 for a debt, seeking foreclosure or .sale, or otherwise, to enforce 
 his security, where the sum claimed as due does not exceed 
 $200 ; 
 
 12. In actions by a person entitled to redeem any legal or 
 equitable mortgage or any charge or lien, and seeking to 
 redeem the same, where the sum actually remaining due does 
 not exceed $200 ; 
 
 13. In actions by any person seeking equitable relief in 
 respect ' f any matter whatsoever, where the subject matter 
 involved does not exceed $200 ; 
 
 Right of 14. In an}' action or contestation to establish the right of a 
 
 rankon'^Bstat ^^'^'^ito*' ^^ rank upon an insolvent estate where the amount of 
 " such claim does not exceed $400. 59 V. c. 19, s. 3. 
 
 conHent in 
 actionH for 
 liquidated 
 damages. 
 
 Recovery of 
 land. 
 
 PartnerHhip 
 accounts. 
 
 LetracieH. 
 
 Actions on 
 mortgages. 
 
 Actions for 
 redin.ption. 
 
 Equitable 
 I'elief. 
 
 Transfer of 
 certain 
 actions found 
 not to be 
 within the 
 jurisdiction. 
 
 84. If during the progress of any action or matter under 
 clauses 9 and 10 of the last preceding .section, it is made 
 to appear to the Judge that the subject matter exceeds 
 the limit in point of amount to which the jurisdiction of the 
 Court is therein limited, it shall not affect the validity of any 
 proceedings already had or order already made, but unless an 
 order is made under the next section it shall be the duty of 
 the Judge by his order to transfer the action or matter to 
 the High Court ; and the procedure in tlie said action or 
 matter after being so transferred shall be regulated by the 
 x'ules of the Supreme Court of Judicature for Ontario. 59 V 
 c. 19, s. 4, part. 
 
 ma"b'^'^o°" '^''*" — ^^^ ^^y party or person interested may upon notice 
 tinned in" to the other parties apply to a Judge of the High Court for 
 
 County Court 
 
Chap. 55 
 
 COUNTY COURTS. 
 
 Sec. 25 (1). 
 
 225 
 
 an order authorizinj^ and directiiijf the action or matter to notwithstand- 
 be carried on. continued nnd coinpletetl in the County Court, juii^ditalon. 
 if such action or matter in beyond the jurisdiction of the 
 County Court by reason onl}^ that the amount of the 
 "joint stock or capital," or " decejised person's estate," mentioned 
 and limited in clauses 9 and 10 of se-tion '2'i exceeds the 
 sum of $1,000 by an amount not exceeding SoOO. 
 
 (2) If after hearing the parties or such of them as appear, fe'rW Sn'dis. 
 the Judge is of the opinion that such excess will not prejudi- cretioii of 
 cially interfere with a proper trial or completion of the said •''"^K". 
 action or matter in the said County Court he may order 
 that all subset[uent [>roceedings in such action or matter shall 
 be had and taken to completion (including the issue of 
 execution and all proceedings thereon or thereafter) in the 
 County Court as fully as though such Court had had juris- 
 diction ah initio, or tiuit only certain of such proceedings to 
 be mentioned in the order shall be so had in the Count}- 
 Court, and that thereafter the other proceedings shall be had 
 in the High C'ourt as to said Judge appear.'? meet and pi'oper, 
 and he may make such order as to the costs of the pro- 
 ceedings had before him as he deems just. 59 V. c. 19, s. 4, 
 part. 
 
 a«. Where it appears at any time before or .luring the trial ;^f^rmuch of 
 that the claim of the plaintiff is in excess of the jurisdiction claim as is in 
 of the Court, the plaintitt' in his discretion may before or dui*- '"''ces.sof 
 ing the trial by writing signed by him and tiled, upon such 
 terms as the Judge decnis propei' as to costs and otherwise, 
 abandon so much of his claim as is in i-xc'.^ss of the jurisdic- 
 tion of the Court. In such case the plaintiff shall forfeit 
 such excess, and .shall not be entitled to recover the same in 
 anv other action. 59 V. c. 19, s. 5. 
 
 jurisdiction. 
 
 
 ■a 
 1 
 
 2T.— (1) The .several County Courts shall have jurisdiction fn";;^''t*|;';,''Xr 
 in actions for the recovery of corporeal liereditaments (where recovery of 
 the yearly value of the premises, or tlu; rent payable in respect *" " 
 thei'eof, does not exceed ^200) in the following cases, namely ; 
 
 {(() Where the term and interest of the tenant of such 
 corporeal hereditament has expired, or has Ijeen 
 determined by the landlord or the tenant, by a legal 
 notice ; 
 
 (6) Where the rent of such corporeal hereditament is 
 sixty days in arrear, and the landlord has the 
 right by law to re-enter for non-payment thereof : 
 
 and in respect to such actions the said Courts .shall have and Power in .such 
 exercise the same powers as belong to and may be exercised by ^'^^*'^- 
 the High Court, in and in respect to actions for the recovery of 
 land. 
 

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 ^ 
 
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226 
 
 Sec. 30 (2). 
 
 COUNTY COUHTS. 
 
 Chap. 55. 
 
 
 ««* 
 
 cr 
 
 Landlord 
 defined. 
 
 Relief which 
 may be 
 granted by 
 Cininty 
 Coiirts. 
 
 (2) The tonn " LanUlo'd," as used in tliis section sliall 
 be miderstood to mean tlie person entitled to the immediate 
 reversion of the land ; or if the property be holden in joint 
 tenancy, coparcenary or tenancy in connnon, shall be under- 
 stood to mean anv ovie of the persons entitled to such revei'sion. 
 R. S. O. 1887, c. 47, s. 20 (1 8). 
 
 lis. Every County Court shall have legal and e([uitable 
 jurisdiction and sliall, as regards all causes of action within its 
 jurisdiction for the time being, have power to grant and shall 
 grant, in aiiy action or proceeding in such Court such relief, 
 redress or remedy, or combination of remedies, either absolute 
 or conditional, including the power to grant, vesting orders 
 and to relieve against penalties and forfeitures ','■'•' ^l^"'! 
 in every such action or proceeding give such <ind ^'*^i like 
 effect to every ground of defence or counter-claim, equii-.ible 
 or legal (subject to the provision ne.xt hereinafter contained) 
 by and upon the same mode of procedure, and m as full and 
 ample a manner as might and ought to be done in the like 
 
 case by the High Court. 
 Sched. A (72). 
 
 .■)() V. c. 19, s. G; GO V c. 15, 
 
 DutyofCourts *i\\. Where in a pi'oceeding before a County Court any 
 w iiiM e ence jg£^^.j^g(j ^^y. count<M--chiim of the defendant involves matter 
 
 or counter- ki^i.^^^^^ v-. v, '"_■■' ■ ^ " " ..^^.^i.-n^.i^ jj.<<.i...o inuuuwi. 
 
 claim involves bcyoud the juri.sdiction of tlio Court, such defence or counter- 
 yond^urMic- chiiin .-hall' not affect the competence or the duty of the 
 tion. Court to dispose of the whole matter in controversy so far 
 
 as relates to the demand of the plaintiff and the defence 
 thereto, but no relief exceeding that which the Court has juris- ' 
 diction to administer shall be given to the defendant upon 
 such counter-claim. R, S. 0. 1887, c. 47, s. 22. 
 
 REMOVAL OF ACTIONS INTO HItlH COURT. 
 When title to j{^| — (^-^ Where it appears in an action otherwise of the 
 the vahie of proper competence of the County Court that such Court has 
 $200 w called not cognizance thereof from the title to land beyond the value 
 in ques ion. ^^ $200 being bi'ought in question, or from the validity of a 
 devise, bequest or limitation umler a will or settlement being 
 disputed, and the devise, Itequest or limitation exceeding in 
 value .$200, oi' from the a;-sets of the estate or fund out of 
 which the amount in question is payable exceeding $1,000, a 
 Judge of the 'ligh Court or a Judge of the County Court 
 before whom the cau.se is pending, may (subject to .section 
 25 of this Act) direct the removal of the cau.se into the High 
 Court ; and the cause when I'emoved into the High Court 
 shall be proeeedeil with in the said C^'ourt in the n)anner pro- 
 vided by .section .'H of this Act. ii\) V. c. 19, s. 9. 
 
 TmimKition of (^2) The Judge making the oi'der may in his discretion nnike 
 KrantiiiK order and impose terms on the party applying for th^ order 
 for lemoval. ^s to payment of costs, giving security for debt v)t* costs, or 
 such other terms as he thinks fit. 
 
Chap. 55. 
 
 COUNTY COURTS. 
 
 Sec. 30 (3). 
 
 227 
 
 (3) Where the orclov is made by a Judge of a County Court, jjj*^P(^f, 
 Hiffh Court sittins in Chambers at Toronto, mav revi. 
 
 a Judge of the 
 
 lurt 
 may review 
 
 may rescind the order, or vary the terms thereof or imposed order for re- 
 
 ,11 r. .. y-^ ,,,rH. .n ^r, /i-. .-.^ inoval of Co. 
 
 thereby. R. S. O. 1887, e. 47, s. 23 (2, 3). Court Jud^e. 
 
 31. — (1) If it appears to a County Court or a Judge thereof Certain 
 
 , , , • 1 1 ' , • ■ 1 • • ,1 1 casoH may be 
 
 that an ecjuitable question raised in an action or other proceed- transferred to 
 ingin such County Court, cannot be dealt with b}' the County *J>« Jf'K^i 
 Court so as to do complete justice between the parties, or may 
 for any other reason be more conveniently dealt with in the 
 High Court, the Court or Judge may order the action or pro- 
 ceeding to be transferred to the High Court ; and the order of 
 transference may be made by the Court or Judge sua uponte, 
 or upon the application of eitlier party on notice to the other 
 parties interested, and may be made at any stage of th action 
 or other proceeding. 
 
 (2) Where an order is made under the preceding subsection, Proc edings 
 the |)roper officer of the County Court shall annex together all Hlglfcourt." 
 pleadings and papers hied with him, and transmit the same, 
 together with the order of transference or a copy thereof, to 
 
 such officer of the High Court as the order Jlrects. 
 
 (3) Where a transfer has been made under this section the ^" ? ^"'H^'^h 
 action or other proceeding shall thereafter jiroceed in the High Court prac- 
 Court ; and the Judges of the High Court and the officers thereof 'i^^e, powerH, 
 shall have the same powers and perform the same duties in rela- 
 tion thereto, and the Kules and practice of the Supreme Court 
 
 shall in all respects (or as nearly as may be) apply as if the suit 
 •had been originally instituted as an action, or proceeding in 
 the High Court ; but no further or other pleadings shall be 
 necessary than the original pleadings in the Court from which 
 the action or proceeding was transferred, unless specially 
 ordered by the Court or a Judge. R. S. O. 1887, c. 47, s. 38.' 
 
 J514. Whce it appears in an action 'orought in a County Transfer of 
 Court that such Court lias not cognizance thereof from any fmi'roperly 
 cause other than those mentioned in section 30, a Judge of the brouRhtin the 
 High Court, or the Jiidge of the County Court before whom County Court, 
 the action is pending, may order the action to be transferred 
 to the High Court, and the proceedings thenceforward shall 
 be a'' provided by sections 3l and 34 of this Act fur like 
 cases. 54 V. c. 14, s. 1. 
 
 nil. Except in cases within the meaning of secticms 24, 30, In whatcaHcs 
 31 and 32, or in cases where the defence or counterclaim in- oondlticHis"' 
 volves matter beyond the jurisditition of the County Court as causes Hhall 
 provide<l in section 180 of Thr Ju<liiUitiir<' Art, no cause or '^ ™'""^"*''«- 
 action instituted in a (.'ounty Court shall be removed or ^^^- ^'^*'^' °' 
 removable from such County Court, by order of certiorari, 
 or otherwise, into the High Court unless the debt or 
 damages claimed amount to upwards of Si 00, and then 
 
228 
 
 Sec. 38. 
 
 COUNTY COURTS. 
 
 Chap. 55. 
 
 On ri'iiioval 
 cas*- to 
 proceed on 
 the record as 
 it Btandx. 
 
 only on affidavit and by leave of a Judge of the Higji 
 Court, in cases which appear to the Judge fit to be tried 
 in the High Court, and upon such terms as to payment of 
 costs, giving securitv for debt or costs, or such other terms 
 as he thinks fit. R. S. O. 1887, c. 47. s. 24. 
 
 »J4. In a case removed from a County Court to the High 
 Court it shall not be necessary to deliver a new statement of 
 claim, but the case shall proceed on the record as it stands 
 when removed into the High Court, and all subsequent pro- 
 ceedings may be had and taken in the cause in the same way 
 as if it had been originally commenced and prosecuted in 
 the High Court. R. S. 0. 1887, c. 47, s. 25. 
 
 
 I 
 
 a 
 
 Costg on 
 transfer. 
 
 Venue for 
 
 certain 
 
 actions. 
 
 COSTS IN CASES TRANSVERRED. 
 
 im. Subject to rules, where an action is transferred under 
 section 31, the fees and disbursements shall be paid and the 
 solicitors' costs taxed according to the lower scale taritJ of the 
 High Court. R. S. O. 1887, c. 47, s. 39. 
 
 PLACE OF TIUAL IN CP^RTAIN CASES. 
 
 'UO. — (1) Actions under clause 8 of section 23 of this Act 
 shall be brought and tried in the county where the land is, 
 and actions under clause 9 of the .said section shall be brought 
 and tried in the county where the partnership had or has its 
 principal place of business, and actions under clause 10 of the 
 said section shall be brought and tried in the county where 
 letters probate or of administration have issued, or where the 
 deceiised resided at the time of his death, uidess by consent of 
 the parties, or unless the place of trial is changed. 59 V. c. 19, 
 s. 10. 
 
 (2) Actions under section 27 of this Act shall be brought 
 in the County Court of the county in which the premises 
 sought to be recovered lie. R. S. 0. 1887, c. 47, s. 20 (2). 
 
 PLEADING AND PRACTICE. 
 
 Where action JJT. An action by or against a Judge or Junior Judge of 
 of Coimty"*^^^ a County C'ourt which is within the competence of a County 
 Courts maybe Court, may be brought in the Coimty Court of anj' County 
 
 adjoining that in which such Judge or Jimior Judge resides. 
 
 KS.O. 1887, c. 47, s. 2«. 
 
 brought. 
 
 Pleadintrwant JW. When it is intended b}'^ a pleading to bring into 
 
 tioii"'^""*'*' question the title to land, or to any annual or other rent, 
 
 duty, or other custom or thing, relating to or issuing out of 
 
 lands or tenements of greater value than S200, or to dispute 
 
Chap. 55. 
 
 COUNTY COURTS. 
 
 Sec. 38. 
 
 229 
 
 the validity of any devise, bequest or limitation exceeiling 
 S200 under any will or settlement or when it is intended l>y 
 any pleading to exclude the jurisdiction of the Court upon the 
 foregoing or upon any other ground it shall be so expressly 
 stated in the pleading, and the matter relied on for that pur- 
 pose shall also be set out in the pleading. 59 V. c. 19, s. 11. 
 
 3t>. Issue may be taken on any such pleading or reply may Taking issue 
 be made or a summary application may be made to the Judge want^onuris- 
 to determine whether the jurisdiction of the Court is by such diction, 
 pleading bona fide brought in question. If the Judge is of 
 opinion that the jurisdiction of the Court is not so brought in 
 question he may direct the pleading to be amended or to be 
 struck out. Wliere the Judge is of opinion that the jurisdic- 
 tion of the Court is properly and bona fide brought in question 
 by any pleading he may order tl at the cause be transferred 
 to the High Court. 59 V. c. 19, s. 12. 
 
 40. Subject to the provisions of The Judicature .4 c^ Procedure in 
 and to Rules of Court, the pleadings, practice and pi'ocedure courts^ 
 for the time being of the High Court shall apply and extend Rev. Stat, 
 to the County Courts, wherever the pleadings, practice and "• 51. 
 procedure of the County Courts corresponded with those of the 
 Superior Courts of Law, prior to the passing of The Ontario 
 Judicature Act, 1881, and the rules, orders and forms appli- I^"|"' °''<^®'''' 
 cable to similar cases and under similar conditions in the High y 
 Court shall apply to all actions, suits or proceedings, had, 
 instituted or pending under the additional jurisdiction given 
 
 by The County Courts Act, 1896, to County Courts unless and 59 v. c. 19. 
 until additional or other rules applicable to such cases are 
 made. R. S. 0. 1887, c. 47, s. 28 ; 59 V. c. 19, s. 13. 
 
 4 1 . The several County Courts may set aside verdictt. or Powers as to 
 non-suits, and grant new trials, and such Courts and the Judges ''''"^ "^ ^'* *'" 
 thereof may set aside judgments by default, and proceed- 
 ings for irregularity, grant time for any pleading, and order 
 
 stay of proceedings till security is given for costs, and may issue 
 summon.ses and make orders in all matters of practice in like 
 manner and on the like principles and grounds, and to the 
 same extent as the High Court, or the Judges thereof in 
 the said Court, and may cause rules on sheriffs, or any other 
 rules, orders or proceedings thereupon ~ to be served in any 
 county. If. S. O. 1887, c. 47. s. 29. 
 
 COSTS WHERE NO JURISDICTION. 
 
 43. In all actions or other proceedings brought in a County Costs where 
 Court in which the plaintiff fails to i-ecover judgment by ?''=''0'i fails 
 reason of such Court having no jurisdiction over the subject jurisdiction, 
 matter thereof, the County Court shall have jurisdiction 
 over the costs of the action, or other proceeding, and may 
 order by and to whom the same shall be paid, and tlie recovery 
 
230 
 
 Sec. 47 (1). 
 
 COUNTY COURTS. 
 
 Chap. 55. 
 
 of the costs so ordered to be paid may be enforced by the same 
 remedies as the costs iu actions or proceedings within tlie 
 proper competence of the said Court are recoverable. R. S. O. 
 1887, c. 47, s. 30. 
 
 EXECUTION. 
 
 Writs of exe- 
 cution. 
 
 4J{. The County Courts may issue writs of execution 
 goods and lands, and writs of capian ad satis- 
 
 agauist 
 
 faclendmn against the person, in like cases, upon the same 
 terms, and in the same order, as similar writs may be issued in 
 the High Court. R. S. 0. 1887, c. 47, s. 81. 
 
 Ill 
 I 
 
 
 :3k;. 
 
 Writa of ex- 44 The Countv Courts may issue writs of execution agains, 
 may run into the person, lands or goods, writs of subpcena, rules on the sherift' 
 other counties and all Other rules, orders and proceedings into any other 
 county, to be served or executed therein ; and Judge's sum- 
 monses and orders may be issued in like manner ; and all such 
 writs, rules, summonses, orders and proceedings shall be of equal 
 force and r^tfect, and as binding as if the same had been issued 
 from the Court or by the Judge of the County to or into which 
 they are so issued, and all subsequent proceedings thereupon 
 shall be carried on in the Court in which the action has been 
 brought or the judgment entered. R. S. O. 1887. c. 47, s. 32. 
 
 .-■1-1 
 
 Power to en- 
 force rules, 
 etc. 
 
 POWER TO ENFORCE RULES. 
 
 45. The several County Courts shall have and exercise the 
 same powers to enforce their rules, regulations and directions 
 as the High Court possesses, and may punish by fine or 
 imprisonment, or by both, for any wilful contempt or resist- 
 ance to their regular process, i-ules or orders ; but the fine 
 shall in no case exceed SlOO, nor shall the imprisonment 
 exceed six months. R. S. 0. 1887, c. 47, s. 33. 
 
 ACCOUNTS AND INQUIKIES. 
 
 References. 40. Where it is proper to directa reference, the Court or Judge 
 
 may make such reference to the Master in Ordinary of tlie 
 Supreme Court or to any of the Local Masters or to the Clerk 
 of the Court, and where the Judge of the Court is Local Master 
 the reference may be made by him to himself as such Master, 
 but no reference to take accounts or make en(jr.irifts shall be 
 directed at the sittings of the Court where such accounts or 
 inquiries can be conveniently taken or made at such sittings ; 
 and no reference shall be directed at an}^ time, unless where 
 a reference is necessary, if such reference will increase the cost 
 of the proceedings. GO V. c. 15, s. 2. 
 
 Power on 41. — (1) Where an order is made under the preceding sec- 
 
 such order. tion, the Master or Clerk to whom the reference is directed 
 shall pi'oceed therein, and all rules as to the powers of the 
 
Chap. 55. 
 
 COUNTY COURTS. 
 
 Sec. 47 (1). 
 
 231 
 
 Master, and as to the proceedings in the Master's office, shall 
 apply thereto. R. S. O. 1887, c. 47, s. 35 ; 59 V. c. 19, s. 7. 
 
 (2) Upon every reference under the preceding section the Coats of 
 fees to be paid and the costs to be allowed, whether as between >'eferenc('. 
 party and party, or solicitor and client, shall be in accordance 
 with the lower scale tariti'of the High Court. 59 V. c. 19, s. 8. 
 
 4H. Where the Master or Clerk has made his report pursu- Report to ije 
 ant to the ordei", the same shall be filed with the officer of the 
 Court with whom the pleadings are filed ; and the repoi't shall, 
 without an order confii'ining the same, become absolute at the 
 expiration of fourteen days after the filing thereof, unless pi'e- become abso- 
 viously appealed from, but the Court or a Judge may, under iwte. 
 special circumstances, allow an appeal after the fourteen days. 
 R. S. O. 1887, c. 47, s. 36 ; 59 V. c. 19, s. 7. 
 
 4t>. Tlie appeal from a report referred to in the pre- Apiiealfioii' 
 ceding section shall be to a Judge in Chambers or to the '^'''""^ " 
 Court; but when the appeal is taken to the Court, the 
 notice of appeal shall be returnable not later than the 
 fourth day of tlie County Court Sittings next after the 
 filing of the report. R. S. l) 1887, c. 47, s.^37. 
 
 Al'PKALS FROM COUNTY COURTS. 
 
 
 50. The terms " party to a cause or mattci-," and " appel- Meaning of 
 lant," hereinaftei- used, shall include persons suing or being cJ'ige or'" " 
 sued in the name of others, though not mentioned in the matter " and 
 recoi'il, jind persons on whose behalf or for whose benefit any '^^^^ *""" 
 action is proseeut(>d or defended, as well as parties named in 
 the record. R. S O. 1887, c. 47. s. 40. 
 
 SI. — (1) Any party to a cause or matter in a County Court Appeals to 
 may appeal to a Divisional Court of the High Court of Justice courtH. ' 
 from any judgment directed by a Judge of the County Court 
 to l)e entered at or after the trial in any case tried without a 
 jury, and also in any case tried with a jury, to which subsec- 
 tion 4 does not apply. 
 
 (2) Instead of appefJing to a Divisional Court of the High Motion to 
 Court of Justice any party may move before the County for"ne\v ti°ial 
 Court within the fii-stt wo clays of its next quarterly sittings or "therjudK- 
 to set aside the juttginent and enter any other judgment upon ""*" " 
 
 any ground. 
 
 (3) A motion for a new trial on the ground of discovery of Moving for 
 new evidence or the like .shall be made before the County dfg^ov"ry""f 
 
 Court. new evidence, 
 
 (4) Where there has been a trial with a jury any motion for where ims 
 a new trial, whether made for that relief alone or combined been a trial 
 with, or as an alternative for any other relief, shall be made to ^' '"^"'■y- 
 the County Court. 
 
T' 
 
 282 
 
 Sec. 56. 
 
 COUNTY COURTS. 
 
 Chap. 55. 
 
 -..•1- 
 
 a 
 
 Paity moving (-\ jj^' j^ pm-ty moves before .a County Court under suKsec- 
 
 County Court ..^\. - -^ . , i , -1,1 "^ 1 1 , ^i rr- - 
 
 not to appeal tiou 2 in a case m \vl. ch he miglit have appealed to the High 
 
 toHighCfourt. Qourt he shall not l)e entitled to appeal t'loin the judgment of 
 
 the County Court to the High Court, but tiio opposite party 
 
 shall be entitled to appeal therefrom to the High Court. 08 V. 
 
 c. 18, s. 44 (1) ; 60 V. c. 15, Sched. A (69). 
 
 Appeals from 
 deci«ion of 
 Judge. 
 
 5*i. — (1) All appeal shall also lie to a Divisional Court of the 
 High Court of Justice, at the instance of any party to a cause 
 or matter from every decision made by a Judge of a C(nrnty 
 Court under any of the powers conferred upon him by any 
 Rules of Court or any statute, unless provision is therein made 
 to the contrary ; and from every decision or order made by a 
 Judge of a County Court sitting in Chambers under the pro- 
 visions of the law relating to interpleader proceedings, the 
 examination of debtors, attachment of debts and proceedings 
 against garnishees ; and from every decision or order made in 
 any cause or matter disposing of any right or claim, provided 
 always that the decision or order is in its nature final and not 
 merely interlocutory. R. S. O. 1887, c. 47, s. 42 ; 58 V. c. 13, 
 s. 44 (2) ; 59 V. c. 18, Sched. (48) ; c. 19, s. 14. 
 
 (2) This section shall not apply where jurisdiction is given 
 to the Judge of the County Court as yn'sona designata. 56 V. 
 c. 13, s. 6. 
 
 [As to appeals where Judge is persona designata. See Cap. 
 76, See. 6.] 
 
 5IV An appeal may be had from any appealable decision of 
 a County Court Judge, notwithstanding judgment has been 
 signed thereon. R. S. O. 1887, c. 47, s. 43, part; 58 V. c. 13, 
 s. 44 (3). 
 
 54. On an appeal the Divisional Court may set aside any 
 judgment which may have been directed .to be entered or may 
 have been signed, and direct any other judgment to be entered 
 or direct a new trial to be had and make any other order as to 
 such Court may appear requisite and just. 58 V. c. 13, 
 s. 44 (4). 
 
 i»5. The Judge .shall at the request of the appellant, certify 
 cer- under his hand to the proper officer of the High Court the 
 pleadings in the cause, and all motions, rules or orders made, 
 granted or refused therein, together with the Judge's charge 
 and the judgment or decision on the same, and, where a trial 
 has been had, the evidence and all objections and exceptions 
 thereto, and all other papers in tlu; cause affecting the (jues- 
 tions raised by the appeal. R. S. O. 1887, c. 47. s. 51, part ; 
 58 V. c. 18, s. 44 (5). 
 
 Certifying pro- •»^*- ^^ appeals under section 52, the Judge shall only be 
 ceedings leiiuii'ed under the next preceding section to certify the motions, 
 
 under 8. 62. ' f b J 
 
 Appeal after 
 
 judgment 
 
 signed. 
 
 Order of 
 Divisional 
 Court on 
 appe<".l. 
 
 I'leailingH 
 etc., to be 
 tified. 
 
Cliap. 55. 
 
 COUNTY COURTS. 
 
 Sec. 56. 
 
 233 
 
 rules, orders, affidavits, evidence and other materials, necessary 
 for the full understanding of the matter in appeal, together 
 with his judgment or decision on the same. R. S. O. 1887, 
 c. 47, s. 45. 
 
 51. The appeal shall be set down for argument at the first SettinK'down 
 sittings of a Divisional Court of the High Court of Justice ^•'P''* "• 
 which commences after the expiration of one mouth fi'om the 
 judgment, order or decision complained of and the Divisional 
 Court shall give such order or direction to the Court below, 
 touching the judgment to be given in the matter, as the law 
 requires ; and shall also award costs to either party in its Costs. 
 discretion, which costs shall be certified to and form part of 
 the judgment of the Court below ; and upon receipt of the 
 order, direction and certificate, the Court below shall proceed in 
 accordance therewith. R. S. (). 1887, c. 47, s. 52, part; 58 V. 
 c. 13, s. 44 (6). 
 
 RULES OF LAW. 
 
 58. The several rules of law enacted and declared by T/tc Kiles of Law 
 Jiulicatitre Act shall be in force and receive effect in all County countV " 
 Courts in Ontario, so far as the matters to which such rules Courts, 
 relate shall he respectively cognizable by .such Courts. R. S. 0. Rev. Stat 
 1887, c. 47, s. 53. 
 
 5L 
 
 f 
 
 RULES OF COURT, 
 
 5*). The Judges of the Suprerpe Court and of the High Judges of 
 Court respectively, shall have the same authority to make QoJJrt'and of 
 Rules of Court with respect to the County Courts as by sec- High Court 
 tion 122 and 124 of The Judicature Actihcy have with respect "^^^^^^^^ 
 to the High Court ; and the Judges authorized, as mentioned jj^^. \^gx 
 in section 125 of that Act, shall, with respect to the County c. 51. 
 Courts, have the like authority. R. S. O. 1887, c. 47, s. 54. 
 
 TARIFF OF COSTtJ. 
 
 be 
 ns, 
 
 60. — (1) TheBoard of County Judges appointed under section Tariff of costs 
 305 or 306 of The Division Courts Act, or the majority of them, ^^''^ ^oiicUors. 
 may frame a tariff of costs to be allowed to solicitors and „ ^ g^^^. 
 counsel in respect of actions in the County Courts, and may, c. 60. 
 from time to time, alter and amend the same. 
 
 (2) The Board, or any three of them, shall certify to the 
 Judges authorized to make Rules under section 122, 124 or 
 125 of The Jicdicature Act, any tariff so framed, or any alter- Rev. Stat. 
 ation thereof ; and the Judges may approve, disallow or "• ^^• 
 amend such tariff or altcations ; and such tariff or alterations 
 approved by the Judges shall have the same force and effect 
 as if made under the .said Act by the Judges so approving of 
 the same. R, S. 0, 1887, c. 47, s. 55. 
 
234 
 
 COUNTY COURTS. 
 
 NOTES. 
 
 ^ ••«**', 
 
 ^•""^T^ 
 
 ^:& 
 
 :?»^- 
 
 
 
 Jurisdiction limited to a particular county. Aitioiis uiul pidtfedings in llie 
 County Cinnt may, suliji'<t to tlie riglit to ohtain u iluuigt" of venue, l)e lnought 
 in liny county except in tlie following eiiHes ; 
 
 (1) Actions of re))levin nnist lie hrouglit in the county in which the goods have 
 been wrongfully distrained, taken or detained, R.JS.O. e. Gtt, s. 7 ; Hoover 
 V. Craig (188-)), 12 A. H. 72. 
 
 (2) Applications by way of intei'jjleadei' by a jiarty who has not been 8ue<l 
 must be made to the Court of the County in wiiich the apj)lieaiit resides, 
 or in which the money, goods or chattels arc situate ; C. H. 1 \'S,i (b). 
 
 (.S) Actions for iccovery of or for trespass or injury to land not exceeding in 
 
 value .'*"2(M), nmst lie brought where the land is, except by con.sent. See 
 
 section 30. 
 (4) Actions for a partnership account must be brought where the partnership 
 
 had its ])rin(ipal place of l)usine.ss, except by consent. See section 'Mi. 
 (j) Actions for a legacy must be brought in the County where probate or let- 
 
 tcis of administration issuetl, or where deceased resided at tlie time of his 
 
 deatli, except by consent. See section 3(i. 
 
 (6) Act'ons by a landlord for recovery of demised ))rcniises whci'e the j'early 
 value or rent does not exceed .*)2(K), must be brought in the Count}' where 
 the premises lie. See sections 27 and .30. 
 
 (7) Actions against a justice of the peace or other ofiicer fulfilling a ))ublic 
 duty for an act done in tiie ])erforniance thcieof nnist lie brought in the 
 Countv where the cause of action arose. R.S.O. c. 88, ss. 1 (2), 19, com- 
 pare li.S.O. c. !l(», s. 44. 
 
 (8) Actions foi- infringeme.it of j)atent nmst lie brouglit in the court which 
 holds its sittings nearest to tlie place of residence oi' business of the defen- 
 dant. K.S.C. c. ()l, s. .30. 
 
 (9) Proceedings under The (.'rcdi^ors' Relief Act are to be filed with the Clerk 
 of the County Court of the Coui\ty, the Sheriff of which has the execution. 
 R.S.O. c. 77," s. 7 (4). 
 
 (10) Actions for anything jjnrporting to lie done in pursuance of aTiy Act of the 
 Parliament of Canada lelating to criminal law shall, unless otherwise pro- 
 vided, be laid and tried in the County where the act was committed, and 
 not elsewhere. Criminal Code, 1892, s. 97"). 
 
 Jurisdiction limited by amount or value. The jurisdiction in actions to recov- 
 er land, otherwise than bv a laiullord, or for trespass or injury to land, or in 
 which title is in (piestion, is limited to cases where the value of the land does 
 not exceed .^200. This means the actual nuirketable value of the land ; Klston 
 v Rose (1809), L.H. 4 Q.H. 4 ; Stolwortliy v. Powell (1890), .■)4 L.T. 795 ; and 
 where the .Judge has found the value on conflicting evidence and has not pro- 
 ceeded on a wrong principle, iiis decision will not bo reviewed on a motion for 
 prohibition ; Rrown v. Cocking (1808), L.R. 3 Q.H. 072 ; but where prohibition 
 is moved for befoie the ti-ial on the gr(mn<l of excess in value and tlie value is 
 determined to be within the jurisdiction, no evidence can be afterwards 
 received in the County (,'ourt on the (|uestioii of value ; Symons v. Reea(1870), 
 I Kx. I). 410. Where the action is by a landhjrd to recover from his tenant 
 the demised jireniies, the rental value is that payable as between the litigant 
 parties ; Brown v. Cocking (1808), L.R. 3 Q.B. 0'72. 
 
 Except actions on bail bonds and recognizances of bail, the County Courts 
 are limited in jioint of amount beyond which there is no jurisdiction, except in 
 collateral procec<lings. Except in actions for li(piidate(! damages an<l partnei- 
 ship accounts the limit is .$200 and as a general projiosition it nuiy be saiil the 
 County Courts iiave jurisdiction in all matters to .*!2tK), except in the five cases 
 enumerated in s. 22. The amount is determined bj- the sum claimed by the 
 plaintiff. Several causes of action may be joined together, the ditt'erent items 
 of which would exceed .'!!200, but if the sum claimed is only .^200, the jurisdic- 
 tion is not ousted, McMurtry v. Muiiro (1877) 14 U.C.R. 100 ; re Stogdale v. 
 Wilson (1879) 8 P. R. o ; .McLaughlin v. Schaefer (1886) 13 A. R. 203; and 
 
COITNTY COUKTS. 
 
 S86 
 
 inturst before verdict cannot ho allowed except iti so far as the iimount of the 
 verdict does not exceed $2^ ; Malcolm v. Leys (I8i)'2) lo 1'. K. 7"> : Young v. 
 Mordcn (1884) 1(1 1*. f-!. 'iTfi, Init interest after verdict and before entrv of judg- 
 ment i.s nnobie.!tional>le, Sproule v. Wilson (18!»3) 15 I'.R. ;U». 
 
 Liciuldated Claims. In actions relating to debt, covenant and contract where 
 the anioinit is li(|uidated or ascertained by the act (,f the parties or tiie signa 
 turc of the defendant, the limit of jurisdiction is .'?()(M). Whenever a H\nn up 
 to .?<)(M) is agreed on by the parties as the renunieration for a service to bo 
 rendered or foi' the price of a horse or goods sold, or for any article, tli(! sul)- 
 ject of sale oi' purciiasc, if the service be peifoiined or tiie article or goods de- 
 livered in jnu'suance of that bargain, tiie aniount is liijuidated by the act of the 
 parties. Ostrom v. Henjaniin (No. 2) (1894)21 A. H. 4(17. Thus an agi'ccnient 
 to pay the invoice price of goods and freight and duties is 11 iiidatcd :vt the 
 amount of the invoice price and the amount paid for freiglit and duties ; 
 Wallbridge V. Hrown(187!t) 18U.{'.R. 138. (hi a sale of a number of hogs- 
 heads at .':<10 each, or of a ijuantitv of l)utter at 22 cts. a pounil, tiie amount is 
 liipiidafed. Watson v. Severn (1 88 1 ) (i A.R. .5.")i» ; Durnin v. McLean (1884) 10 
 P.R. 2!lo. On an agreement to jiay an agent one-lialf of the amount received 
 for a pension and the agent succeeding in establishing a claim for .'i>ijfK), the 
 action may be brought in the ("ounty Court ; (Jstrom v. Rcnjamin (No. 2) 
 (1894) 21 A.R. 4(>7. I5ut where the amount is not iigrecd on oi' acknowledged 
 by the defendant to the plaintirt' with liis a.s.sent, it is not li<iuidate<l. Robb 
 v. Murray (1889) l(j A.R. W,\. Imt this case must '.ic confined to its actual 
 facts, and tiic cases of Hrowii v. Ho.se (!80()) 14 P.R. 3 and re McKaj' v. 
 Martin (1890) 21 (). R. 194, in so far as they ,ire authorities for the projiosition 
 that the amounts thei'c in ((uestion were not lii[uidatcd a|)pear to be inconsis- 
 tent with Ostrom v. Henjaniin, .sujira. The denial by tiie defendant of the 
 agreement or a conflict of evidence as to its terms or the (|uantitv of goods re- 
 ceived, will not oust the jurisdiction. The questicm must be submitted to the 
 jury, Watson v. Severn (1881) (i A.R. 559. The ascertainment may lie eitlier 
 at the time of the contract, or afterwards, or anv time before a"tioii brought ; 
 White Sewing Machine Co. v. Belfry (1S83) 10 P.R. 04; tXstrom v. Hcnjamin 
 (No. 2) (1894) 21 A.R. 4(57. Tlio reduction of tlic aniimnt by payment or liy 
 abandonment of tlie excess, M(^Muity v. Munro (1877) 14 U.C. R. 1()(>; Blown 
 V. Me Adam (18(17) 4 P.R. 54, or by a set-otl" admitted liy both parties or agreed 
 on as payment, Fleming v. Livingstone (1873) (i P. R. 03; Re Dixon v. Snarr 
 (187(i) () I'.R. 33(i, may be but an unadmitted set oft' cannot lie allowed to reduce 
 the amount of tlie jilaintifl's claim .so as to bring the case within tlie jurisdiction. 
 Re Punrval v. Saunders (18(i()) 20 U.C.R. 119; Hulibard v. (io<idley (1890) 25 
 Q.H.I). i50. The decision of the judge that the parties have agreed to the 
 set-oil' will not be reviewed on a motion for ])roliiliitioii. Re Jenkins v. Miller 
 (1883) 10 P.R. 95. In an action on a guarantee a liquidation or ascertainment 
 lay the debtor is not binding on the guarantor, am] the Court consequently 
 will in such ca.se have no jurisdiction beyond .*2(Xt. Thompson v. Kede (1895) 
 22 A.R. 1 ().->. 
 
 Combining Liquidated and Unliquidated Claims. An iinli(iiiidatcd claim under 
 $200 may be joined with a li((uidatcd chiiin under .*!i)(K(, and jurisdiction exists 
 up to Sli'oo. Vogl V. Boyle (1880) 8 P.R. 249 ; McLaughlin v. : .chaefei- (1886) 
 13 A.R. 25.3. 
 
 TITLE TO LAND. 
 
 ■When jurisdiction ousted. The title of a corporeal hereditament is in ques- 
 tion whether its existence or the right of the claimant to it is denied ; Adey v. 
 Deputy-Master of Trinity Hou.se (18.-.2), 22 L..I.(J.B. 3 ; S.C. 1 E. & B. 273, 
 sub. luim. R. V. Everett. There must be some show of reason for the claim ; 
 Cornwell v. Saiidars (1802), 3 B. & S. 200. The claim must be a bona fide one, 
 and the right one that can exist in point of law; Hudson \ . McRac(1803)4 
 B. & S. 585; Lloyd v. Jones (1848), C, B. 81. It must be of such a nature as 
 if substantiated, would form a defence to the action ; Leatt v. Vine (1801), 30 
 L..1.M.C. 207. If the defendant actually bring the title in <|uestioii, then, 
 although his claim may be fraudulent or f<mnded on the most utter bad faith, 
 the Court will have no jurisdiction; Marsh v. Dowes (18,')3), 17 .lur. 558. 
 Where in an action of tort for per.soiial chattels, the title to land comes 
 incidentally in question, the jurisdiction is ousted ; Trainor v. Holcombe 
 (1850), 7 U.C.R. 548. Where the (piestion was whether certain goods were 
 part of the freehold or not the jurisdic'tion was held to be ousted ; Portnian v. 
 Patterson (1871), 21 U.C.R. 237 ; but in a later case it was held to be a ques- 
 
T 
 
 236 
 
 COUNTY COUHTS. 
 
 
 tl 
 
 
 tion of fact, and if tin; inferior (!ourt Judjje dcfided that tin- cliattcl was not 
 part of the freeliold, tile i\ii'isdietion was not ousted; He Husliell v. Mohs 
 (IHHti), II I'.R. •_'.">1 : see MeNeil v. Haines (188<)), 13 I'.R. 11."); Maeani v. 
 Dines (1H91), "2 West. L.T. (lit. The eailiei' case of I'oitnian v. I'atterson was 
 not cited. Where the defendant clainie<l the right to obstruct a street it was 
 held that title was liidught in <iuestion ; H. v. Taylor (1S51), S U.C.R. '2iM ; 
 so also wliere a rij^lit of way was claimed across a railway ; Cole v. Miles, W.N. 
 (IHHS), !.')(). Where, if the parties ha<l heen landlord aii<l tenant, the Court 
 would iiave had jurisdi(^tion, hut defendant dainietl to he a freeholder, the 
 jmisdi'tion was oustetl ; I'earstni v. (Jlar.ehrook (ISCS), L. H. ,S Kx. 27 ; hut 
 where, in an action for douhle rent the tenant was estoi)pe<l from denying his 
 landloiil's title, liis claim of title was of no avail ; Wickham v. Lee (1S48), 12 
 Q.H. .")21; Hank of .Montreal v. Cilchrist (IHHl), (> A. K. ()")!» ; but it wouhl 
 have been otherwise if the defendant ha<l shown that his lessor's title expired 
 <turing the tenancy ; Moun*noy v. (.'oilier (1853). 1 K. & B. (5.30. Where a 
 demise is admitted, but the .subject matter thereof, e.g., whetlier certain 
 rooms in a cottage are i"clu(led, is in dispute, the juri.sdietion is ousted ; Chew 
 V. Holroyd (18.")2), 8 E::. 249. Where, in an action ft)r rent, the defendant set 
 up that the rent belonged to a third party to whom it had l)een paid, the juris- 
 diction was ousted; I'air v. McCrow (1871), 31 U.C.R. oi(9 ; see, however, 
 Whitling V. Sharpies (1889), 9 C.L.T. 141. If a person is charged with 
 liability iiy reo.son of owiieiwhip of certain land, and he denies that ownership, 
 title is in Iiuestion ; li. v. Harden (1854), 2 K. & H, 187. Though the fact that 
 title came in question does not appear on the face of the proceedings, prohibi- 
 tion nuvy be granted ; Marsden v. Wardle (1854), 3 E. & B. 695. Application 
 may. however, be made before trial in the inferior Court, and prohibition 
 will be awarded if it aj)pear that title must come in ([uestion ; Macara v. 
 Moorish (18(51), II C.P. 75; Sewell v. Jones (1850), 15 Jur. 153; 1 L.M. & P. 
 525 ; see other cases where jurisdiction ousted ; R. v. Davii'aon (1880), 45 
 U.C.R. 91 ; R. V. McDonald (188(5) 12 O.R. 381. In the.se cases a mere bona 
 fide claim of right was sufficient, but i!i Division Courts title must be in (ptes- 
 tion. Where it is necessary to prove that a married woman has sepai'ato 
 estate, and no evidence can be given of the possession of any personal estate 
 in respect of which she may be deemed to have contracted, and a bona fide 
 :|uestion arises whether she has title to certain lands, it seems that the juris- 
 diction is ousted ; Re Widmeyer v. McMahon (1881), 32 C.P. 191, 194, in 
 which, however, the title of the married woman was not disputed or brought 
 in (piestion. Where a (piestion of title to an incorporated hereditament arises, 
 the jurisdiction (h)eH not appear to be ousted. Compare R.S.O. o. 60, s. 71 (4). 
 
 When not ousted. In an action of trespass the plaintiff need not prove his 
 title l)ut merely show possession. Hawkins v. Rutter (1892) 1 Q. B, 668. 
 
 The mere a.ssertion by a solicitor of a elaini of right is insufficient. Title 
 must he i>i quextion ; re Kmery v. Barnett, (1858)4 C.B.N.S. 423; Lilley v. 
 Harvey, (1848) 5 D. & L. 648, 12 .Jur. 1026 ; R. v. .vindford, (1874) 30 L.t.N. 
 S. (501 ; Ball v. (J. T. R. (1866) 16 U. C. C. P. 2;)2. If there are disputed 
 facts, or a (piestion as to the proper inference from undisputed facta, 
 there is no jurisdiction. If the facts can lead to only one conclusion, and 
 that against the defendant, then there is no such bona fide dispute as will 
 oust the jurisdiction. Re Moberly v. Collingwood, (1S94) 25 0. R. 625. 
 Where a le.s.soi- has certain rights under a lease, and sells, the mere proof l)y 
 the vendee in an action against the lessee of his paper title, does not oust the 
 jurisdiction; See Neads v. McxMillan, (18(59) 29 U. C. R. 415 ; R. v. Priest W. 
 N. (1887)65. Where the question was whether certain rails forming a lino 
 fence put by mistake on another's land were the property of the party putting 
 them there, title to land was not in (luestion : Re Bracfshaw v. Duffy, (1868) 
 4 P. R. 50. The term, of a tenancy do not form matter of title : re English 
 V. Mulholland, (1882) 9 P. R. 14i> ; re Knight, (1848) 1 Ex. 802. The question 
 whether a right to impound is implie(r fiom a right to pasturage, is not a 
 question of title: (iraham v. Spcttigue, (1885) 12 A. R. 261. Nor is the 
 (piestion wheth'^r a municipality is bound to repair a road : Knight v. Medora 
 (Town.ship), (1886) 11 0. R. 1.38; 14 A. R. 112; nor whether the stream is 
 navigable; Reece v. Miller, (1882) 8 Q. B. D. 626. In an action of false 
 imprisonment, no question of title can arise ; Eversfield v. Newman, (1858) 4 
 C. B. N. S. 418. 
 
 Certiorari. A case transferred to the High Court is transferred on the plead- 
 ings ' delivered in the County Court : see Hankey v. Grand Trunk R'y Co. 
 (1859) 17 U. C. R, 472, and must bo tried in the High Court : Sherk v. Evans, 
 
COUNTY COURTS. 
 
 237 
 
 (IHO.)) 22 A. R. 242; and the jurisdittion of the Comity (^'ourt ceases upon 
 tranHHiisnion of tlie papers : D'Krrico v. Samuel (ISiMi) 1 Q. B. I(i3 ; Afahon v. 
 Nicholls (18S(>) 'A\ <!. V. iVi ; and tlie parties are tlien in the same position as 
 if the action iiad heen originally conwneiiced in tlie Higii t'oiu't. Struthers v. 
 (ireen (18!»2) 14 P. H. 4H(i. 
 
 For further authorities relating to County Courts see Robertson's Local and 
 County Courts Acts. 
 
 I 
 
 ■',1 
 
238 
 
 
 CHAPTER 6b. 
 
 An Act respectiug Lunatics. 
 
 JnTEI PRETATION, S. 1. 
 
 Jurisdiction, s. 2. 
 Inquisition by Commission, ss. 3, 4. 
 Inquiry without Commission, ss. 
 5-8, 
 
 Scope of inquiry, s. 9. 
 Protection of property, ss. 10-16.. 
 Appeal, s. 17. 
 Costs, s. 18, 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Pi-ovince of Ontai-io, enacts 
 as follows : — 
 
 Interpretation 
 "lunatic." 
 
 Jurisdiction 
 over lunaticn 
 and their 
 estates. 
 
 I. The word "lunatic" in this Act shall include an idiot or 
 other pei'son of unsound mind. R. S. 0. 1887, c. 54, s. 1. 
 
 ?J. In the case of lunatics and their property and estates the 
 jurisdiction of the High Court shall include that which in 
 England is conferred upon the Lord Chancellor by a Com- 
 mission from the Crown, under the Sign Manual. R. S. O. 
 1887, c. 54, s. 2. 
 
 Traverse of in- 
 quisition of 
 lunacy. 
 
 Time to be 
 limited. 
 
 May be tried 
 in any Court of 
 Record. 
 
 INQUISITION BY COMMISSION. 
 
 II. — (1) Where a Commission has been issued and an inquisi- 
 tion thereupon returned into Court, by which a person is found 
 lunatic, in ciise any one entitled to traverse the inquisition de- 
 sires to do so, he may, within three months from the day of the 
 return and filing of the inquisition, present a petition for that 
 purpose to the Court, and the Court .shall hear and determine 
 the petition subject to the following provisions : 
 
 (2) In every order giving effect to the petition, the Court 
 shall limit a time not exceeding six months from the date of 
 the oi'der, vvithin which the person desiring to traverse, and all 
 othor proper parties, shall proceed to the trial of the traverse ; 
 but the Court may under the special circumstances of any case, 
 verified by affidavit, and upon a petition being presented for 
 that purpose, allow the traveise to be had or tried after the 
 time limited ; and in such special case the Court may make 
 such orders as seem just. 
 
 (3) The trial may be ordered to take place in any Court of 
 Record in Ontario, with the aid of a jury, according to the 
 circumstances of the case and the situation of the parties. 
 
Sec. 7. 
 
 LUNATICS. 
 
 Chap. 66. 
 
 239 
 
 (4) The Court may onler that the person to traverse, if he is What security 
 not the party who luvs beon found lunatic, shall, within one giJjiif^ive"*"^ 
 month after the date of the order, file, with such officer as the 
 
 Court may appoint, a bond, with one or more sureties, in 
 favour of the Accountant, or other officer appointed by the 
 Court, and conditioned for all proper parties proceeding to 
 the trial of the traverse within the time limited. The bond 
 before the filing thereof shall be appi'oved of and certified to 
 be sufficient by the Judge of the County Court of the County 
 in which the parties reside, or by one of the Masters of the 
 Supreme Court of Judicature. 
 
 (5) Every pei-son who does not present his petition, or who When the tra- 
 neglects to give the security, or who does not proceed to the ^^^>^^'^ barred, 
 trial of the traverse within the times respectively limited there- 
 for, and the heirs, executors and administrators of every such 
 
 person, and all others claiming througli him, shall be absolutely 
 barred of the right of traverse. R. S. 0. 1887, c. 54, s. 3. 
 
 4. The Court if dissatisfied with the verdict returned upon a New trials 
 traverse, may order a new trial, or new trials, as in other cu os. "^''^ ^ grant- 
 R. S. O. 1887, c. 54, s. 4. 
 
 INQUIRY WITHOUT COMMISSION. 
 
 a. Instead of issuing a Commission of Lunacy the High Inquiry as to 
 Court may, with or without the aid of a jury (which tlie '"""cy. 
 Court or a Judge thereof may cause to be empanelled as in 
 other cases) hear evidence and inquire into and determine upon 
 the alleged lunacy, or may send the inquiry to any Court of Alleged luna- 
 Record ; but the alleged lunatic shall have aright in sLch cases quire a jury, 
 to demand that the inquiry be submitted to a jury. A. S. 0. 
 1887, c. 54, s. 5. 
 
 U. Where such inquiry is had, no traverse .shall be allowed, No traverse 
 but the Court, if dissatisfied with the finding of a jury, """'^tjfj'^^ 
 may, at the instance of any party who would be entitled be granted by 
 to traverse an inquisition under commission of lunacy, direct Court, 
 a new trial or new trials from time to time upon application 
 therefor made to the (Jourt within three months from the 
 time the verdict is rendered, or such further time as the 
 Coart, under special circumstances, permits, and subject to 
 such directions ami upon such conditions as to the Court seei.i 
 proper, and the Court may order such new trial to be had 
 before the same Court in which the verdict was rendered or 
 before any other Court. R. S. 0. 1887, c 54, s. 6. 
 
 T. On every such iiKpiiry the alleged lunatic, if he is within Alleged luna- 
 the iurisdifition of the Court, shall be produced, and shall be *'•'.'"''? ''^ *?' 
 
 "'. , , , ,. ,' . , ' 'i.! • ivmined openly 
 
 examined at sucli tiinos and in such manner either in open „r privately aa 
 Court or privately before the jury retire to consult about their -fwlge directs, 
 verdict as the presiding Judge may direct, unless the Court 
 
 d' 
 
240 
 
 Chap. 65. 
 
 LUNATICS. 
 
 Sec. 7. 
 
 Declaration of 
 lunacy without 
 commiHsiou. 
 
 Proceedings in 
 lieu of traverse 
 when no 
 commission 
 issued. 
 
 ordering the inquiry has, beforehand, by order, dispensed with 
 the exataination. R. S. 0. 18JS7, c. 54, .s. 7. 
 
 8. The High Court or a Judge thereof may, on sufficient evi- 
 dence, declare a person a lunatic without the delay or expense of 
 issuing a commission to inquire into the alleged lunacy, except 
 in cases of reasonable doubt ; and any person who might tra- 
 verse an inquisition to the same effect may move against the 
 order containing the declaration, or may appeal therefrom, as 
 the case requires ; and the right so to move or appeal shall, as 
 to time, be subject to the same rules as the right to traveise. 
 R. S. O. 1887, c. 54, s. 8. 
 
 SCOPE OF INQUIRY. 
 
 Question to be 9. Every inquiry, under a Commission of Lunacy, or before 
 *"*''^" any Court of Record, shall be confined to the question, whether 
 
 or not the person who is the subject of inquiry is, at the time 
 of the inquiry, of unsound mind and incapable of managing 
 himself or his affairs, and the verdict rendered by a jury 
 shall, in every case, be returned to the Court, certified by the 
 Judge before whom the inquiry has been had, and shall be 
 final as to the question on the inquiry, unless the same is set 
 aside. R. S. 0. 1887, c. 54, s. 9. 
 
 PROTECTION OF PROPERTY. 
 
 C3;: 
 
 
 'iX. 
 
 The com- 
 
 
 mittee to file 
 
 • ■ 1 ■ 
 
 an inventory 
 
 .•MMl> 
 
 of present 
 
 
 property. 
 
 Property of 10. In order to afford due protection to the property of 
 
 una 1C8. lunatics, the following provisions shall in every case be ob- 
 sex'ved : 
 
 1. The committee of the estate shall, within six months 
 after being appointed, file in the office of the 
 Master to whom the matter is referred, or of 
 such officer as may be appointed for that purpose, 
 a true inventory of the v/hnle real and personal 
 estate of the lunatic, stating the income and 
 profits thereof, and setting forth the debts, credits 
 and effects of the lunatic, so far as the .same have 
 come to the knowledge of the committee ; 
 
 2. If any property belonging to the estate is discovered 
 after the filing of an inventory, the committee 
 shall file a true account of the same from time to 
 time, as the same is discovered ; 
 
 3. Every inventory shall be verified by the oath of the 
 committee ; and 
 
 4. The committee of the estate shall give two or more 
 responsible persons as sureties, in double the 
 amount of the personal estate, and of the annual 
 rents and profits of the real estate, for duly 
 accounting for the same once in every year, or 
 
 Also, of after 
 
 discovered 
 
 projierty. 
 
 To be verified 
 on oath. 
 
 Security to be 
 given by the 
 committee. 
 
Sec. 12. 
 
 LUNATICS. 
 
 Chap. 65. 
 
 241 
 
 ttee 
 to 
 
 the 
 
 kore 
 [the 
 mal 
 iuly 
 or 
 
 cftener if required by the Court, and for filing 
 the inventory aforesaid ; and the security shall be 
 taken by bond in the name of the Accountai't or 
 other officer appointed by the Court for that 
 purpose, and the same shall be tiled in the offi-^e 
 of the Accountant or other officer so appointee 
 R. S. 0. 1887, c. 54, s. 10. 
 
 11. Where the personal estate of a lunatic is not suffi- wh.n i-state 
 •cieut for the discharge of his debts, the following steps may be ""* svifficU-nt 
 
 , ° ' = ' •' to pay debts. 
 
 1. The committee of his estate may petition for authoritj- Committee to 
 
 to mortgage, lease or sell so much of the real "'•'i''-^' '^J"' '*''*^'^ 
 
 » <^ ' , r i.1 J. ,, to mortgivge or 
 
 estate as may be necessary tor the payment oi aell. 
 the debts ; 
 
 2. The petition shall set forth the particulars and amount wimt the 
 
 of the estate, real and personal, of the lunatic, pi't't'<."> '« to 
 the application made of any jjersonal estate, and 
 an account of the debts and demands against the 
 estate ; 
 
 3. The Court shall, by one of the Masters of the Supreme Truth of 
 
 Court of Judicature, or otherwise, inijuire into the petition 
 truth of the representations made in the petition, [J^^'^^'' inquired 
 and lioar all parties interested in the real estate ; 
 
 4. If it appears to the Court that the personal estate is not if personal 
 
 sufficient tor the payment of debts, and that the estate 
 same has been appliefl to that ]nirpose as far as the leal'Mtatl' n'lay 
 circumstances of the case render proper, the Court be di.-posed of. 
 may order the real estate or a sufficient poi-tion of it 
 to be mortgaged, leased or sold either by the 
 committee or otherwise ; 
 
 5. The Court shall direct the committee to discharge the Debts to be 
 
 debts out of tlie money so raised, and the Court l'»''^<'"t"f t'>« 
 may order the committee to execute conveyances '"^'""' "• 
 of the estate, and to give security for the due 
 ajiplication of the monej', and to do such other 
 acts as may be necessary in such manner as the 
 Court may direct ; .and 
 
 6. In the application of moneys so raised, the debts Ratably and 
 
 shall be paid in equal proportion without giving fpr'!,','^"* '"' 
 preference to those secured by sealed instruments. 
 R. S. O. 1887, c. 54 s. 11. 
 
 13. Where the personal estate, and the rents, profits and in- if effects not 
 come of the real estate of the lunatic are insutlicient for his Bufficient to 
 maintenance or that of his family, or for the education of his lumitic, his 
 children, an application nuiy be made by the committee, or by leal estate 
 a member of the family of the lunatic, that the committee n|>i'ilie(l. 
 be authorized or directed to mortgage oi- sell the whole or part 
 of the real estate as may be necessary; upon wliieh the like 
 
 :3' 
 
 .-.«' 
 
 
242 
 
 Chap. 65. 
 
 LUNATICS. 
 
 Sec. 12 
 
 r 
 r 
 
 
 leference and proceedings shall be had, and a like order made, 
 as for the payment of debts. R. S. O. 1887, c. 54, s. 12. 
 
 Suriilus «uin» 13. In case '>f a mortgage, lease or sal"^ being made, the 
 ill'iei/l'r diiv ' lu'iatic and his heirs, next of kin, devisees, legatees, executors, 
 i>oKed (if. administrators and assigns shall have the like interest in the 
 surplus which remains of the money raised as he or they would 
 have in the estate, if no mortgage, lease or sale had been made ; 
 and the money shall be of the same nature and character as 
 the estate mortgaged, leased or sold ; and the Court may make 
 such orders as are necessary for the due application of the 
 surplus. 11. S. O. 1887, c. 54, s. 13. 
 
 Where a j^.^ Where a lunatic is seised orpos.sessed of real estate, by 
 
 lunatic IS . . r i.1 • n 
 
 tnistoodr way oi mortgage, or as a trustee tor others in any manner, the 
 
 mortg.agec hi.s conuiiittee may apply to the Court for authority to convey 
 
 may .ict, .-viid sucli real estate tu the person entitled thereto, in such manner 
 
 howf.ar. as the Court may direct ; and thereupon the like proceedings 
 
 shall be had as in the case of an a|iplic;ition to sell the real 
 
 estate; and the Court, upon hearing all the partie." interested, 
 
 may order a conveyance to be made ; and on the application 
 
 of any person entitled to a conveyance, the committee may Ije 
 
 compelled by the Court, after hearing all parties interested, to 
 
 execute the conveyance. R. S. O. 1887, c. 54, s. 14. 
 
 Instruments 15. Ever}' conveyance, mortgage, lease and assurance made 
 
 thecmnm^Uee ^^Y ^^^^ Committee under direction of the Court, pursuant to 
 
 to be v.alid. any of the provisions of this Act, shall be as valid as if executed 
 
 by the lunatic when of .sound mind. R. S. 0. 1887, c. 54, s. 15. 
 
 16. The Court may compel the specific performance of any 
 contract made by a lunatic while capable of contracting, and 
 may direct the committee to execute all necessary'' conveyances 
 for the purpose ; and the purchase money, or so much thereof 
 as remains unpaid, shall be paid to the committee or otherwise 
 as the Court directs. R. S. 0. 1887, c. 54, s. 16. 
 
 Specific iwr- 
 fonnance of 
 contracts 
 made by 
 lunatic when 
 sane. 
 
 APPEAL. 
 
 Apiwal. 
 
 By wliom till 
 Court may 
 order costs 
 to be paid. 
 
 17. An order made by a Judge in a matter of lunacy .shall 
 be subject to appeal to a Divisional Court and to the Court of 
 Appeal within the .same times and under the same conditions as 
 in other cases in the High Court. R. S. O. 1887, c. 54, s. 17. 
 
 COSTS. 
 
 18. The Court may order the costs, charges and expenses of 
 and incidental to a petition for a commission of lunacy or 
 to any inquiry, inquisition. Issue, traver.se, order, direction, con- 
 veyance or other proceeding in lunacy, to be paid by the 
 party or parties presenting the petition or prosecuting the 
 same or such inquiry or other pi'oceeding in lunacy, or by the 
 party or pa.ties opposing the same, or out of the estate of the 
 lunatic, or alleged lunatic, or partly in one way and partly in 
 another. R. S. O. 1887, c, 54, s. 18. 
 
LUNATICS. 
 
 243 
 
 NOTES. 
 
 Scope of the Act. The Act deals with the prftctioc liy whicli a |)eis(iii of 
 uiisouiid iniiid is judicially declaivd to be a lunatic, and with thi" cari' and 
 niauageiniMit of tlie ijioiktIv of (he ))ei-son so declared. The civil lights and 
 duties (if a lu:'ati< arc t'ovciMicd hy the coimnon law. The cominitti)' of a 
 lunatic to a I'uhlic Lunatic Asylum, and the nianagenient of his ))ro])erty while 
 detained there are regulated liy M^S.O., c. .'{17. Private LiUiatic .\svlunis ,ire 
 Huliject to K.8.O., c. SIS. 
 
 JuriBdictlon in Lunacy. By the.Iudicaturc .\cl (IJ.S.O., c. ,"»!. s. 40) the High 
 ("omt lias juiisdiclion in icspcct of lunatics ,uid their iiroperty and estates. !\v 
 tile coiuiuoii law tiie King fts Piiriii-< /in/rim- has the care of the (ler.soi's and 
 the jiersonal estates of those who from tlieir want of understanding are incap- 
 alile of taking care of themselves, and for this rciason the King's coiiiiuittee shall 
 hy the comiiion law have the custody of the iieisons aiicl ))elsoiial estates of all 
 idiots and lunatics to tlu^ end that luovision may lie made against their wasting 
 their juoperties or their injuring their own |)ersoiis or tliose of their fellow- 
 sulijects. The Statute /A I'ra roijntirti /Aj/Zs- inovided that the King (a) slioidd 
 have the custody of the lands of idir.ls, taking tlie ))ro(ils of tliein without waste 
 or destruction, suliject to tlu- conditions that he siiould su))i)ly the idiot with 
 necessaries and restore tiie lands to his lieiis after liis ih atli and (h) should sec 
 that the lands of liiiindi-x were safely kc|)t without wa- i ■■ an<l destruction; that 
 they and their houseiuild were coiii|ietently maintaineil outof the "issues of the 
 same" and that tlie residue was to lii; kept f<ir their use on reeoverj-; Lord 
 Eh's case (I7*)4), Hidgway's I'arliaiueiitarv Cases .")1.S. 
 
 k\\ idiot is one who never had reason, while a lunatic as distinguished from 
 an idiot is a )iersoii who was of good and sound luemory, and liy the visitation 
 of (Jod, sickness, grief or accident, has lost it. Beverley's case (1003) "2 Co. 
 Rep. oliS. The disliiicticn hetween an idiot and a lunatic is now of no con.se- 
 iiuence, the word •'lunatic'" coiuprisiiig idiots and persons of unsound mind, 
 and the Crown having long ago ceased to take any licnetieial interest from an 
 idiot's property. 
 
 • In Hngland the jurisdiction in lunacy was exercised liy the Lord Chancellor, 
 not as the head of th-. Court of Chancery, hut as the re|)resentative and delegate 
 of the (Jidwii. The theory was that the Sovereign alone had jurisdiction and 
 to .save repeated a))i)lications to him, the jmwer was delegated to the Lord 
 Chancellor hy sign nianiial on his coming into otfice. In Ontario all the power 
 of the Crown is vested in the High Court. 
 
 English Lunacy- It may he olisorved that the Lunacy .-Xct, 1890, (.').1 V. c. 5 
 Imp. ) s. 1 10. provides that the ])owers and authorities given hy tl; t Act to the 
 .Judge in Lunacy shall extend to property witliin any British jiossession. . .ands 
 in Ontario may!| therefore, he atl'ected liy proceedings under that Act. 
 
 Petition for Inquisition. The proceeding by inquisition is now seldom re- 
 sorted to, but some account of it may bo nece.s.sary. A petition for an inipiis- 
 itiou may be presented by the nearest relative. Kx jiarte Persee (18'28), Moll. 
 •219; by 'a tenant. Kx iiarte Ogle (1808) lo \'es. 112 ; by a creditor, Re Bell 
 
 (1809) -2 Cool). Ki-'i He I'carcc ( 1844) 8 .lur. 89; by a stranger, Ro 
 
 (18.-)4) '23 L. T. \1'.\ ; He Smith (18-2(i), Russ. :US. 
 
 All the facts and evidcii<-e should be laid before the Judge and a case shouhl 
 be niaile aniountiiig, at least, t<i a probability of insanity. Kx parte I'ersee 
 (1828), .Moll. 219. Tlie granting of an in(|uisition is the subject of ili.scrction 
 regulated solely by the benefit of the lunatic with reference to the care of his 
 per.son and property. i"'d is not, of course, upon the mere fact of lunacy ; Ro 
 Clark (1892) M I'.K. IITO. Kx i)arte Tomlinsoii (1812), V. & B. ,')7 ; 12H.R. 
 191; He Holbyii (18.-)7) -29 L.T. .'lo.-); Ke Clare (184()) 3 Jo. k Lat. ")71. The 
 i)etitioii slioulil be supixirted by atiidavits of medical men and others. The 
 certificate of a pli\sician who kee)is a private lunatic asvluni will not bo 
 received. Anon ( 1804) (i Ir. Kq. B. 389. 
 
 The Petition should be ))reseiited in Chamliers; Ke Stuart (18."),'{) 4 ( Jr. 44. 
 If granted a coiiimission (U liiiiutii'o iiiiiiiin iiilo will lie issued. N'oliie of tiio 
 orcTer for the issue of this eoiiiiui.ssion must be served on the alleged lunatic 
 
 :3' 
 
244 
 
 LUNATICS. 
 
 «cr^'' 
 
 i., V' j 
 
 r 
 
 unlesj service upon him would 1)0 dnngerous to him; see Re Talbot (1882) '20 
 Ch. I). '209; Re Pattoii (lS(i8) 1 Ch. Chaml>. 192; Re Newman (1809) 2 Ch. 
 Clmnil..39(l; Re Mein (18()9)2("li. Ciiaml). 429. If the lunatit Hliould lie resident 
 out of tile juiiMdictioi), a direction may lie made for service upon him, and upon 
 the pers(»n witli whom he is living liy registered letter; Re Lanwarne (1882) 4(i 
 L.T.N.S. ()(i8. Where a lunatic had heen taken out of the jurisdiction liefore 
 the connuission issued, an order was made tliat she shoidd he lirought hack. 
 Re Wykeham (182:}) Turn. & R. o.ST. 
 
 Tiu' carriage of the commission will he committed to the person most likely 
 to hring out the whole truth ; Re Neshitt ( 1847) 2 Ph. 24'); Re Wehb (184«; 2 
 Ph. Id; Re Scarlett (1873) L.R. 8 Cli. 7:«t. Kul.ject to tliis rule the preferen >■ 
 will he given to the wife or children or otiicr iii'ai'est of kin : Re Wood (18o9 i 
 L.T.N.S. 119; Kx parte Tondin.'^cju (1812). 1 V. & H. ." ; 12 R P. 19i h\it 
 wliere a wife had an interest in iireventiiig flic ))roof of lunacy lieing c:irr,' .( 
 back beyond a certain time, a l>rotlicr was preferred; Re Wliittakci' (1839)4 
 Myl. & Ci'. 441, and a secretary of a Frieiul Society lias been ])referied to the 
 next of kin; He Anstie (1849) 1 Mac. & (!. 2(MI. and a mateiiial aunt was pre- 
 ferred to a half-liidtlier who was an alien notwithstandiiii,' she was interested 
 in the lujjacy "ot liaving commenced l)efore a will iindei' \ liicli she brnetited 
 was made, but the half iirotli(!r was given leave to attend e proceedings and 
 cross-examine witnesses; Re Bariatinski (1843) 13 L. .1. ( h. .!9. 
 
 In the al(sence of otliei controlling facts the jierson >vlio ; ' st presents a peti- 
 tion is entitled to the carriage of it ; Re Wood (1809) 1 l)e (-. F , J. 142. 
 
 Protection of Property Fending Commission. The lunatic ni.iy, p ■nding the 
 ini[nirv, l)e restrained from leaving the jurisdiction, and from disposing or mis- 
 using his jiro, iv; Re Lawlei' ( 1874) Ii'. R. 8 K(|. odO; and may a])))oiiit a 
 receivei'; le Pountain (1888) 37 ("li. 1). 0(19. but amjile means for resisting the 
 commission will lie furnished out of the estate to those who act on the iiii|uirv 
 on his behalf ; Re Holmes (1827) 4 Russ. 180; 28 R.R. 42, and for househol'd 
 expenses: Re liuHock (1880) 3,5 W.R, 109. 
 
 MSS.4 
 
 Protection of Person. The person of the supposed lunatic will also be pi'o- 
 tected ])ending ini|uirv; Re Naylor (1802) 1 N.R, 173; 
 
 Execution of Commission. The eomniis.sion shouhl be executed without delay. 
 Anon (1742)2 Atk. iVi; or the order will be dischargecl ; Re Navlor (18()2)-1 
 N.R. 173. 
 
 The inipiiry should be lieUl at a jilace near the residence of the alleged luna- 
 tic: Re .Te|)li.son (1838) 2 Ju'-. 200 ; but the rule is not inflexible: Re 
 
 (1881) 18 tJh. 1). 20: Re Waters ( 183(i) 2 Myl. & t'r. .38. 
 
 Tlie lunatic has the right to have the iiupiiry before a jury ; Re Talbot ( 1882) 
 20 Ch. 1). 209. 
 
 Persons Allowed to Attend. The following jiersons have been gi\en leave to 
 attend on an iiupiisition — the alleged lunatic himself : Kx ))arte t)gle (1808) 15 
 Ves. 112; per.sons claimiiig undei- a settlement by the lunatio made 10 years 
 before, wlieie the lunacy was alleged to have existed for thirtv-tive vears ; 
 Re Richards (18.V2) 1 Dcti. M. &(;. 71."): the wife of the alleged lunatic Re 
 Parkinson (1841) 5 .lur. 547, but a mortgagee who refused to be bound liy the 
 proceedings was refused leave; Re Watts (1844) 1 Ph. 512; Kx jiarte Snook 
 (1844) 1 Pii. 512. 
 
 Quashing Inquisition. .Vn in(|uisition may lie i|uaslied for irregularity or mis- 
 cou<luct of tlu' jurv or the commissioners ; Kx ii.ii'te Robert (1743) 3 Atk. : 
 Re Milne (18(i,')) 11 (ir. 153: Rochfort v. Klv (1707) 1 Hidgway P. ('. .-)41 
 or for an uncertain vcrdi<t : Re Holmes (1827) 4 Russ. 182 ; 28 K.H. 42 ; Re 
 Bruges(1830) 1 Myl. & Cr. 278 ; Re .Atkinson (1821) .Tacob .3.3,3. On the iiuiuisi- 
 tion being <iuaslie<l a new connuission may issue without a second ])etition ; 
 Re Bennett (1837) 1 -Tur. 4(i9. 
 
 Traverse, .\ftcr the return to the incpiisition if the jiarty has !>eeii found 
 lunatii: a petition may be jiresmted within three months from the icturn aiul 
 filing; of the ini|uisition for leave to tiaverse the tinding. The follnwing pei- 
 sonshavethe right to traverse : ( 1 ) the lunatic himself: He Cumming (1852) 
 
 1 l)e ii. M & <i. 548 ; (2) the husbiiid or wifcof the lunatic ; He Nugent (1817) 
 
 2 Mol. 517 : (3) an alienee, Shcrwond v. Sanderson (1815) 19 Ves. 287 : 13 R. 
 
LUNATICS. 
 
 245 
 
 R. 193, (4) Any person having a loual or eijuitahle title to or interest in liis 
 estate, Vin. Abr. tit. Lunatiu. ('>) A person who had eonti'acted witli tile liiii- 
 ati<^ : Kx parte Hall (ISO-i) 7 V'es. 2(>1. The traverse of an in(|uisition is a 
 matter of right ; Ex parte Feme (1801) o Ves. 8.3.*} ; Ex parte Wragg (IS(MI) 
 .') Ves. 4r)0; Re Bridge (1841)Cr. & Vh. ;«8 ; Imt if tile application be hy the 
 lunatic himself care nnist l)e taken that it is really his wish and that he is com- 
 petent to form and express the wish; Re (Jumining (ISiVi) 1 l)e(t. M, &(i. ,'tiH. 
 Where the validity of his marriage was doubtful an application by the husliand 
 was refused ; Re Fust (1788) 1 Cox. 418. 
 
 Provisions substantially siniiliar to ss. 3 and 4 will be found in the English 
 Lunacy Act 189() ss. 101-103. 
 
 Inquiry without Commission. An issue may bo directed without the issue 
 of any writ of sunnnons ; Re Scott (1884) 27 C,'h. 1). llti. iSoniewhat siniiliar 
 provisions to tho.se of ss. 5, ti and 7 are to l)e found in the English Lunacy Act 
 lS!»(t ss. 94 and 104. 
 
 Production of Lunatic. A wife may i)e committed for not producinj,' iier 
 luisliand who is alleged to be a lunatic ; Lo"d Weunian's case (1721 ) 1 P. Wins. 
 701. 
 
 Summary Declaration ol Lunacy. In practice declarations of lunacy are 
 made ujion a siynmarv application liy petition in ciianiliers. 'J"he petition 
 must be supported liv tlie evidence of at least two medical men ; Re Patton 
 (1808) 1 Ch. Chaml).'l<.J; Re Fleming (1877) 13 U.C.L..T.N.S. 197. Notice 
 of the ajiplication must be served upon the alleged lunatic ami any fserson lie 
 may desire to see must bo allowed access to him; Re Miller (I8ii8) 1 Cli. 
 (Jliaml). -!.■). Notice to the lunatic will only be dispensed with wiien it would 
 be dangerous to the lunatic to serve him ; Re Newman (lS(i9) 2 Cli. Cliamb. 
 .S9(); K.' Mein (1869) 2 Ch. Chamb. 429. 
 
 Although lunacy may be shewn, the Court has a discretion to refu.se the dec- 
 laration where it would not be for the lunatic's benefit; Ro Clark (1892) 14 
 
 P. R. :m. 
 
 Scope of Inquiry. The question is whether the alleged lunatic is at the 
 time of tlu! iiKjuiry of unsound mind and incajialtle of niaiiagiiig Iiiniself (>'■ his 
 attairs ; see also Lunacy Act 1890 (o3 V. c. .">. Imp. ) s. 98. Tlie incajiacity 
 iiiav be'fiom a cause distinct from lunacy, asohl age ; Ex parte Ogle (180S) 1.") 
 Ves. 112; (abson v. .leyes (1801) (} Ves. 273; "> R.R. 29.") ; Re Kelly (187.")) (> 
 P. R. 220, or iml)ecilitv of mind caused bv di.sease, age or liabitual intoxication ; 
 Re Monaglian (1846) 3' Jo. &. Lat. 258 ; Ridgowav v. Darwin (1802) 6 Ves. 6.") ; 
 6 R.R. 227. 
 
 Non-residents who have property here may be declared lunatics. Ex jiarte 
 Southcoto (17")!) 2 Ves. 401 ; Re Scott (1874) 22W.R. 748, and so may alienf- ; 
 Re Bariatinski (1843) 1 Ph. 374. 
 
 Residents within the juri.sdiction, but possessing property only in another 
 jurisdiction may lie declared lunatics; He Houston (1826) 1 Russ. 312; Ex 
 parte Southcot'e (17r)l) 2 Ves. 401; Re Stevens (1819) 2 Coop. loO ; Re 
 Tottenham (1837) 2 Myl. .& Cr. 39. 
 
 Control of Property, The Court will not allow the lunatic's property to be 
 applied otlierwis(! than for his lieneHt, and will not pay his creditors out of it 
 without first providing for tile maiiitonance of himself and his family ; Ro 
 Railton (1837) 1 Jur. .-)74 ; Re Adey (1846) 1 Coop. 22,> ; re Pink (1883) 23 Cli. 
 I). 077, and it will not allow property in its control to lie seized under an exe- 
 cution. Ro Winkle (1894) 2 Ch. .519 ; Imt it has no jurisdiction to interfere 
 with the rights of creditors to seize and sell by legal jirocess property of the 
 lunatic, which at the time of seizure was not in the custody of the Court ; Re 
 Clarke (1898) 1 Ch. .33() ; Re Farnham (1896) 1 Ch. 836,. Accordingly mainten- 
 ance is a first charge on the property under the control of the committee ; Re 
 Plenderleith (1893)3Ch. 332; Re Farnham (189.")) 2 Ch. 799; but where the 
 creditor has .seized or realized on tiie property under a fi. fa. the court cannot 
 take the property or its proceeds from him ; Re Clarke (1898) I Ch. 330. 
 
 Committee. In the appointment of committee of a lunatic, relations are, 
 unless there is some specific objections, preferred to stiangors ; Ex parte Le 
 Heup(1811)18 Ves. 222; Re Watkins (1846) 1 Coop. 225. The Court will 
 attend as far as possible to the wishes and inclinations of the lunatic ; Ro 
 Leacocke (1838) LI. & (!. 498, even if unreasonable ; Ro Dyco Sombre (1844) 8 
 
 -all 
 
246 
 
 LUNATICS. 
 
 
 ^ ■ 
 
 Jur. SIT. The iK'xt of kin iiiiiy lie nijpoiiitcil ; K\ piiito Cockayne (1802)7 
 Ves. .")!tl ; Neiilc'.s ciisc (IT.'tl) "i V. Wnis. .")44. Persons out of the jniisdietion 
 may under special cireuinstances l)e ai)pointe(l ; Kc Hrueie (18S1) 17 (Jli. I-). 
 77") ; He Ho])per (1S!)7) (i(i L. .1. (.'h. ."iOit, and so may a partner ; Re Millington 
 (1804) 2 Ki|. K. I."i8. Tile motlier of an infant tenant in tail in remainder was 
 preferred to the nominee of a party interested in his personal estate (1840) Re 
 \Vel)l. 2 I'll. 'i.'Vi. The natural daughter of a liastard lunatic with whom he had 
 lived was given leave to carry in jiroposals for a committee ; Re Weldi (1847) 2 
 I'll. 1 l(i. Where the lunatic has two estates situate at a distan^^e from each 
 other a se])arate committi^e may lie aj)i)ointed for each ; Re Robins (1831) 2 
 Rush. & ^l. 44!). A hushand has no indcfeasilile right to he ap]>()inted com- 
 mittee, hut will ))rol)ahly he ajipo'iited in Ititil cases out of 1(HH(, hut if it \H not 
 for the lunatic's henetit that he should he appointed, the (,'ourt will exercia(! its 
 discretion and ap])oint some other jieison. Re Davy (1892) 3 ("li. .S8. 'I'lie fit- 
 ness of tlie projjosed committee must he sliewn hy alHdavit ; Re Ration (18()8) 
 1 C'li. Cliamh. 1((2. Separate committees may he appointed of the person ami 
 the estate, see Re Talhot (1882) 20 Ch. 1). 2()!>. 
 
 The eijmmittte of the per.son may settle and change the residence of the 
 lunatic. He must keep within the allowance for initintenance. The lunatic 
 must not he removed out of the jurisdiction witliout the leave of the Court. 
 Upon such removal socui-itv may he i^ecpiired ; Re Staii' (1846) 1 ('oop. 227, .see 
 also Re Jones (1844) 1 l'li."4()l ;" Re Halkett (18.54) 3 Jr. ('h. .ST."). 
 
 The committee of tlie estate is a mere hailill'; Re Fitzgerald (1807) 2 Sell. & 
 Lef. 432 ; I.saacs v. Chinery (18!)()) 12 T. L. R. .302. His rights and duties are 
 defined In'the act. He is invariahly i'';(|uired to give security ; hut the Coui't 
 may authoii/.e him to act hefore giving security. The (irovisioiis of the Statute 
 as to security are merely directory. Shaw v Crawford (1879) 4 A. R. 371. 
 
 Mortgage. Lease, or Sale of Real Estate. Much wider powers are given to the 
 Court in Lunacy under the Lunacy Act 1890 (.Vi V. c. ,■>. Imp. ) ss. 1 17-122 than 
 those confeired ujion the Court here. The lands may lie sold, leased or moi't- 
 gagcd either to jiay dehts or to provide mainttniancefor the lunatic or hisfamily, 
 or education for his children. The ])rovisions as to .security do not ajiply to 
 documents dii-ected to he executed under the auti;ority of the ("oui't ; Shaw v. 
 Crawford (1879) 4 A.R. 371. A sale in consideration of a ])erpetual rent charge 
 may he allowed ; Re Ware (1892) I Ch. 344. No lease can he made withcuit the 
 consent of the (Joint ; Foster v. Marchant (1084) 1 Vern. 202 ; Re Wilkins 
 (1842) O.Tur. 308. 
 
 Payment of Debts. In paj'ing dehts, tho.se resting upon a moral ohligation 
 only may he iiaid. Re Hew.son (18">"2) ; Re Whitaker (1889) 42 Ch. 1), 119, 
 liut tlii < would not include gamhling dehts il). 
 
 Eight of Succession not to be changed. Hy s. 13 eli'eet is given to the general 
 rule of the Coui't nevei' to change the right of suecesion to the propeity of a 
 lunatic. This rule is dei'ived from the Statute of 17 Kdw. II. Kx parte 
 Annandale (1749) Amh. 81; Weld v. Tew (1828) 1 Heat. 208. Ordinary rejiairs 
 will he paid for ovt of the personal estate, but any extraordinary outlay of 
 the personal estate on the laud should retain its character of personalty; Re 
 Hadcock (1840) 2 Myl. & Ci'. 440, or the amcmnt thereof raised out of the 
 laiid ; Re (list (1877) .T Ch. 1). 881. There is no jurisdiction to charge one 
 estate with the expenses incurred on another estate, where the succession 
 would he ditl'ereiit ; Re Vavasour (188.")) 29 Ch. I). 300. If a charge or mort- 
 gage is paid oil' on real estate out of the personalty and the persons entitled to 
 the real and ))ersonal estate respectively are difl'erent ; the ))er.sons entitled to 
 the i)ersonalty will havea lien on the real estate ; Weld v. Tew (1828), 1 Heat. 
 208, and if the charge has heeii paid oil' out of .savings of real estate, the heir 
 will he entitled to take the land free from the charge, even though it has been 
 kept alive. Leitrim v. Knery (1804) Ir. E(|. R. 3.")7. 
 
 Costs. Though an alleged lunatic may ho found to be of sound mind, the 
 costs may he ordered to he paid out of his estate, if the application was 
 prompted by a desire to ])rotect the jierson and property of the alleged lunatic, 
 and was made upon reasonable grounds and in a reasonable manner ; Re Cath- 
 cart (1893) 1 Ch. 400. 
 
 The costs of successfully opposing a petition in lunacy cannot be allowed 
 priority, on the footing of maintenance, over the claims of other creditors 
 where the estati; is henig administered under <in assignment for the benefit 
 of creditors ; ro Dumhrill (1884 10 P. R. 210. 
 
247 
 
 CHAPTER 66. 
 
 An Act respecting Actions of Replevin. 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 I. This Act may be cited as " The Replevin Act." R. S. 0. short title. 
 1887, c. 55, s. 1. 
 
 WHEN GOODS REPLEVIABLE. 
 
 3i: 
 
 H. Where goods, chattels, deeds, bonds, debentures, promis- when goods 
 sory notes, bills of exchange, books of Recount, papers, writ- »}<^y b*' «L>ple- 
 ings, valuable securities or other ]iersonal pro])erty or effects ^"''" 
 have been wrongfully distrained under circumstances in 
 which by the law of England, on the 5th day of December, 
 1850, replevin might have been made, the person complaining 
 of such distress as unlawful may bring an action of replevin, 
 or where such goods, chattels, property or effects have been 
 otherwise wiongfully taken or detained, the owner or other 
 person capable of maintaining an action for damages therefor 
 may bring an action of replevin for the recovery of the 
 goods, chattels, property or effects, and for the recovery of 
 the damages sustained by reason of the unlawful caption and 
 detention, or of the unlawful detention, in like manner as 
 actions are brought and maintained by persons complaining of 
 unlawful distresses. R. S. O. 1887, c. 55, s. 2. 
 
 S. No party to an action or proceeding, in any Court, shall Goods seizDd 
 replevy or take out of the custody of the Shenff, Bailiff, or ",C,*vied''by''" 
 other officer, any personal property seized by him under process parties, 
 against such party. R. S. 0. 1887, c. 55, s. 3. 
 
 4. Where a Sheriff has in his hands an order of replevin, 
 and in case the property to he replevied or any part thereof 
 is reasonably supposed to be secured or concealed in any 
 dwelling house of the defendant, or of any other person holding 
 the same for him, and in case the Sheriff publicly demands at 
 the door of such dwelling house delivery of the property to be 
 replevied, and in case the same is not delivei'ed to him within 
 six hours after such demand, he may, and shall, if necessary 
 (but during daylight only), break open such dwelling house 
 for the purpose of replevying such property or any part 
 thereof, if found therein, and shall make replevin according to 
 the order, 56 V. c. 5, s.'15 (1). 
 
 Power of 
 sheriff to 
 make search 
 under order of 
 replevin in 
 dwelling house 
 of defendant 
 or others hold 
 ing for him. 
 
248 
 
 Chap. 6G. 
 
 ACTIONS OF REPLEVIN. 
 
 Sec. 5. 
 
 I' 
 
 rrr5 
 
 When con- 
 cealed in other 
 encloHure, 
 
 When con- 
 cealed on per- 
 son, etc. 
 
 a. When tho property to be replevied, or any part thereof, 
 is reasonably supposed to be secured or concealed in any 
 enclosure other than a dwelling house of the defendant, or of 
 any other person holding the same for him, and in case the 
 Sheriti" publicly demands at the enclosure, delivery of the 
 property to be replevied, and in case the same is not forthwith 
 delivered to him, he may, and shall, if necessary, at once break 
 open such enclosure for the purpose of replevying such pro- 
 perty, if found therein, and shall make replevin according to 
 the order. 56 V. c. 5, s. 15 (2). 
 
 0. If the property to be replevie<l, or any part thereof, is 
 reasonably supposed to be concealed either about the person 
 or on the premises of the defendant, or of any other person 
 holding the same for him, and in case the sheriff demands 
 from the defendant, or such other person, delivery thereof, 
 and delivery is neglected or refused, he may, and if neces- 
 sary, shall, search and examine the person, and (subject to the 
 preceding clauses) the premises of the defendant or other per- 
 son, for the purpose of replevying the property, or any ))art 
 
 <- 
 
 thereof, and shall make replevin 
 59 V. c. 18, Sched. (44). 
 
 according 
 
 to the order. 
 
 REPLEVIN IN COUNTY COURTS. 
 
 .,_,.. 
 
 
 In cases uiiJtr 1. In case the value of the goods or other property or effects 
 *200 action distrained, taken or detained, does not exceed the sum of $200, 
 brought in and in Case the title to land is not brought in question, the 
 County action may be brought in the County Court of any County 
 
 wherein the goods or other property or effects have been 
 distrained, taken or detained. R. S. 0. 1887, c. 55, s. 4. 
 
 REPLEVIN IN DIVISION COURT.?. 
 
 In cases under 
 •SCO, action 
 uiay V)e 
 brought in 
 Division 
 Court. 
 
 Procedure in 
 
 Division 
 
 Court. 
 
 8. — (1) In case the value of the goods or other property or 
 effects distrained, taken or detained, does not exceed the siim of 
 S60, and in case the title to land is not brought in question, the 
 action may be brought in the Division Court for the division 
 within which the defendant or one of the defendants resides 
 or carries on business, or where the goods or other property or 
 effects have been distrained, taken or detained. 
 
 (2) The matter shall then be disposed of without formal 
 pleadings, and the powers of the Court and officers, and the 
 proceedings generally shall be, as nearly as may be, the 
 same as in other cases which are within the jurisdiction of 
 Division Courts. R. S. O. 1887, c 55, s. 5. 
 
ACTIONS OF REPLEVIN. 
 
 249 
 
 NOTES. 
 
 Under the Replevin Act spocitic gotitls claimed hy one party and imla\vf\dly 
 distrained or otlierwise wrongfully taiicn or ilctnincd, are restored to tlie true 
 owner. Formerly the aitioi. was commenced hy a writ of replevin. Tliis writ 
 has l)ecn aholislie<l, anil tiic action is now connneneed in the ordinary way hy 
 writ of summon.s. An order directing replevin may he ohtained upon motion 
 under (dause 1 of C.R. ItMW, or on praeci|)e under clauses "i and ',\ tiu'reof. 
 Tile pla'ntitlis reijuired to give seeuiity for the return of the goods an<l pay- 
 ment of damages hv l)onil, the amount of the penaltv of the hond to l)e fixed 
 hy the Court. See'C.H. KKi'J. 
 
 Personal Action. The action of replevin is a personal action. 
 
 Notice of Action. No notice of action is necessary. Lewis v. Toalo (1871) 
 .{•ir. C. 1^ HIS ; Folger v. .Minton (18.53) 10 U.C.R. 42:1; 8ee HMtson v. 
 Henry (ISS.")) 8 (J.R. ()•-'.). 
 
 V. Roltinson, (1878) 2 A. R. 305 ; Walker v. Hvman, 
 ]McDonald v. Forrostal (1881) 2!) (ir. 300; (1882) 9 
 
 What goods are replevlable. All kinds of personal ])roperty and ettects may 
 he replevieil ; title deeds may he re];!evicil, Jhnr v. Mmu-oe (1810) O.S. .'57 ; 
 .•\nderson v. Hamilton (1848) 4 U.C.R. 372 ; Dowling v. Miller, (18.52) !» U.C. 
 ]{. 227. A swarm of hees may he replevied ; K.S.O. cliap 117 ; Money in a 
 hox ; leatlicr maile into siioes, if sutficientlv identilicd. Van Every v. (iront, 
 (1802)21 U.C.R. 542. 
 
 When the action will lie. i^'plevin may he maintained incases where tres 
 pass is maintainahle. ("ook v. Fowler ( 18.").)) 12 U.(;. R. ")()8 ; Rrown v. Zim- 
 merman (18.")8) 1.") U.C.R. 503. Wlu're tliere has l)een no wrongful taking hut 
 a mere detention. Deal v. Potter, (1807)20 U.C.R. 578. 
 
 Upon a distress for school rates. Applcgath v. Craham (1858) 7 C.P. 171 ; 
 Spry V. McKenzie (1858) 18 U.C.R. 101. IJy a purchaser in whom property 
 has vested hy reason of his purciiase, (J'Rourke v. Lee (1859) 18 U.C.R. 009. 
 
 By the claimant of goods seized under execution. Reid v. Maedonell, (1870) 
 20 C. P. 147. 
 
 IJy the hirer of goods in possession of a person tnider the terms of a hire 
 receipt on default in payment of instalments. Mason v. .Johnson, (1870) 27 C. 
 
 P. 208 ; Nordheimer ' " " " " 
 
 (1877) 1 A. R. 345 
 S.C.R. 12. 
 
 Ry the claimant of goods seized mider an attachment, the attachment not 
 lieing against him. Arnold v. Higgins, (1854) 11 U.C.R. 191. 
 
 Hv tiie legal representatives of a deceased owner of goods wrongfully sold. 
 Dutiill v. Erwin, (1859) 18 U.C.R. 431. 
 
 By an employer against his workman. Bush v. Pindott, (1859) 9 C.P. 54. 
 
 By the true owner of goods stolen or found, or Ijought from a person hav- 
 ing no authority to sell. Cundy v. Lindsay, (1877) 2 Q.B.D. 96 ; 3 App. Cas. 
 4.59. Rohuul V. Cundy, 5 Ohio, 202. 
 
 Goods obtained hy fraud or hy purchase on a preconceived design not to pay 
 for them. Higgons v. Burton, (1857) 20 L.J. Ex. 342 ; Clough v. L. & N. W. 
 Ky. Co. (1872) L.R. 7 Ex. 20. Cundy v. Lindsay, (1878) 3 App. Cas. 4.59 ; 22 
 Central O.L.J. 5.37; except against an innocent purchaser from a fraudulent 
 vendee. White v. (iarden(1851) lOC.B. 919 ; St.eserv. Springer, (1882)7 A.H. 
 497, even if the party has heen convicted of false pretences. Criminal Code 
 Sec. 838. Bentley V. Vilmont, (1887) 12 App. Cas. 471, is not now law in 
 Ontario. 
 
 Goods distrained hy a landlord otl' the demised premises. Huskinson v. 
 Lawrence, (1807) 26 U.R.C. 51. 
 
 By the purchaser of growing timber sold and cut into logs, as against the 
 owner of the land, Mc(iregor v. McNeil, (1882) .32 C.P. 538. 
 
 
 3i 
 

 
 iBO ACTIONS OF UEPI.EVIN. 
 
 AgaiiiHt a wroiiK door l>v one wlm has Imre possi-asion. (iilinoiir v. Hrrk 
 (1S74)'_'4 ('.!', IH7: Mivtistuin v. HiuImi (iSliT) L.K. 2('.l'. '-'(il ; L.H. 4 II. 
 L. 317. 
 
 Vor growing cro])8. (Jlovcrv. CoIfH, (IHAJ) 7 Miiori', 231, 
 
 For goods sfi/cd under ii waiiiiiit of conviction and rcniovcfl from the 
 county in wiiicii .sci/.urc made and tliere dctaincil. Hoover v. Oraig (IHH.'i) 1'2 
 A.K. '2. 
 
 ]\y a porKon from whose possession goods have heen taken hy force or fraud 
 or without right. Hammond v. McLay (IStU) Id U.C.L.J. ti(«»'. 
 
 liy a jieison having a, mure e(iuital)le title. Carter v. Loiig(IHU<l) '20 S.C.R. 
 4.'tn." 
 
 liy a pciHon entitled to possession as agent of a foriMgn corporation, tln' 
 owner <if the goods, ('o'juillaril v. Hunter (1S7"))3() U.C.H. 3l(i. 
 
 Demand. Where the defendant lawfully acipiired possession of the goods, 
 demand nuist he M\ade upon him hefore replevin can ht- maintained. Tuttts v. 
 Mottimhed (IS7!)) ll) C.I'. -)3!). 
 
 Lien. Where the def<'ndant lias a lien u])on the goods, replevin cannot he main- 
 taine.1. Like v. Higgar ( IHOl) 11 CI'. 170. Hyeis v. McMillan (IH87) loS.C.H. 
 I!(4, hut delivery of the same may he ordered hy tlie Court under (,'.H. l(l!)!l. 
 
 Where goods suhject to a lien have heen replievied and the plaintitl'on 
 account of tlu' lien has faile<l in the action, and tlu' goods are thereupon re- 
 turned to the defendant, his lien revives; Kennin v. Mai iiaiald (1^!'-) '-* 
 O.R. 484. 
 
 When replevin will not lie. Replevin will ncjt lie in the folhnving cases :— 
 
 ^\'here neither lre.sspa.ss nor trover woul ' have heen maintainahlc; Caron v. 
 (Jraham (ISdO) IH U. C. R. Sl"i ; Schatier v. Dumhle (1HH4) ."> O.R. 7Hi : for 
 goods seized for hreach of reveime laws; Scott v. McRae(IS()l) 3 I'.H. Hi; 
 for goods in the hands of an official assignee in insolvency ; Barclay v. iSutton 
 (187<i) 7 I'.R. 14 ; hy a mere servant of the owner, nor hy one who has never 
 had possession; Cool v. Mulligan (IS.'iO) 13 U.C.R. G13 ; against a jxiund 
 kee])er, Ihhotson v. Ilein-y (188,")) 8 O.R. (i'2."> ; for goods seized underr distress 
 warrant i.ssued on a conviction unless the magistrate acted witlio\it jurisdic- 
 tion : Hannigan v. Burgess (1888) 8 C.L.T. I!t2 ; The plaintitV will fail in the 
 action if the title to the goods has not passed to him. Henry v. Cook (18.")8) 
 8 C.V. 12!). 
 
 Estoppel. The plaintiff' may he estopped hy ac(iuie.scence from di-sturhing 
 giiods in the defendant's pos.sessicm; O'Shaugnes.sy v. Ball (1892) "21 S.C.R. 41.5. 
 
 Breaking open doors. S. 4 is an invasion of the maxim " Kvery man's house 
 is his castlo.'' If the gooils were in the dwelling hou.se of the defendant, the 
 outer doors formerly could not he hroken open. If they had heen taken to the 
 house of a stranger to prevent the replevying thereof, the slieritl' couhl only 
 justify the hreaking, ui)on it aiipearing that the goods wore actually there. 
 Semayne's ease (1G05) "> Coke 01 ; 1 Sm. L.C. "228. Now rea.sonahle supposi- 
 tion that the goods are in the dwelling house will justify the hreaking. 
 
 Searching Defendant. Formerly gooils upon the person could not he replevied 
 hecau.se such would provoke a hreach of the peace, see Sunholf v. Alfonl ( 1837) 
 3 U & W. 248. 
 
 SiK 
 
 A.ss 
 
251 
 
 CHAPTER 67. 
 
 An Act respecting Actions of Dower. 
 
 Short title, a. 1. 
 
 ASSIONMENT OF DOWEk WITHOUT 
 ACTION, 8. 2. 
 
 Tenant .served with writ to notify 
 landlord, 8. 3. 
 
 Mode of estimating damaoem, s. 4. 
 Amskinment of doweu after judg- 
 ment, 88. 5-17. 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 1. This Act may be cited as 
 R. S. 0. 1887, c. oG, s. 1. 
 
 The Dower Procedure Act." Short title. 
 
 /J. The dowress and the tenant of the freehold may, by Dowress 
 any instrument under their hands and seals, executed in '^^ ^^^^m^- 
 the presence of two witnesses, agree upon the assignment onnssignment, 
 of dower, or upon a yearly sum, or a gross sum to be paid ^'^^• 
 in lieu and satisfaction of dower, and a duplicate of the instru- 
 ment, proved by the oath of one of the subscribing witnesses, 
 shall be registered in the pi'oper registry office, and shall entitle 
 the dowress to hold the land so assigned to her, against the 
 assignor and all parties claiming through or under him,as tenant 
 for her life, or to distrain for, or to sue for, and recover in any 
 Court having jurisdiction to the amount, the annual or other 
 sum agreed to be paid to her by the tenant of the freehold ; and 
 the instrument so registered shall be a lien upon the land for such 
 yearly or other sum, and shall be a bar to any action or 
 proceeding by the dowress for dower in the lards mentioned 
 therein. R. S. 0. 1887, c. 56, s. 4. 
 
 3. Every tenant in possession, who is not also tenant of Tenant in 
 the freehold, and who is served with a writ of summons in possession, 
 an action for the recovery of dower shall forthwith give notice ant of free- 
 thereof to his landlord or other person under whom he entered hold to notify 
 into possession, under the penalty of forfeiting the value of 
 three years' improved rent of the premises in the possession of 
 the tenant, to the person under whom he entered into posses- 
 sion, to be recovered by action in the High Court. R. S. 0. Pen»'*y- 
 1887, c. 56, s. 5. 59 V. c. 18, Sched. (37). 
 
 
262 
 
 Chap. 67. 
 
 ACTIONS OF DOWER. 
 
 Sec. 4 
 
 Modeofesti- "^^ In estimating damages for the detention of dower or the 
 
 inciting (lam- yearly vaUie of the lands, for the purpose of fixing a yearly 
 
 ^n of dower ^um of money in lieu of an assignment of dower by metes and 
 
 etc. ' bounds, the value of permanent improvements made after the 
 
 alienation of the lands by the husband, or after the death of the 
 
 husband, shall not be taken into account ; but the damages or 
 
 yearly value shall be estimated upon the state of the property 
 
 at the time of such alienation or death, allowing for the general 
 
 rise, if any, in the price and value of the land in the particular 
 
 locality. R. S. 0. 1887, c. 56, s. 6. 
 
 ASSIGNMENT OF DOWEU AFTER JUDGMENT. 
 
 rl"3 
 
 C 
 
 
 dower, etc. 
 
 ^of1c'°*'' *'•■ '^^^^ Sheriff, on receipt of the writ, shall by writing 
 mih"ioners to Under lus Seal of office, appoint two resident freeholders of his 
 H!!wB^*'"fp ^'^^ County who are rated upon the assessment roll for real estate of 
 a value not less than $2,000 each, and a duly authorized Ontario' 
 Land Surveyor, and each of whom would in other respects be 
 eligible to serve as a juror between the parties named in the 
 said writ, to c„ Commissioners to admeasure the dower, and 
 the Sheriff shall, in such writing, set out a copy of the wi'it of 
 assignment, and shall name therein a day on or before which 
 the Commissioners shall make and return to him a repoi't of 
 their proceedings and determination in the execution of the 
 duty assigned to them. II. S. 0. 1887, c. 56, s. 8. 
 
 i\. In case of the death of, or refusal by, any or all of the 
 
 Provision in 
 
 etc., of Com-' Commissioners so appointed, the Sherifi' shall, from time to time, 
 miBsioners. in like manner, appoint another (^r others to perform the duty 
 of any who i^ay die or refuse. S. S. O. 1887, c. 56, s. 9. 
 
 Oath of Coni- 
 itUHsioners. 
 
 Form of oath. 
 
 T. Every Commissioner so appointed shall, before entering 
 upon the execution of his duty, take and subscribe an affidavit 
 in the form or to the effect following ; and the said Commis- 
 sioners .shall annex to their report the affidavits sworn by 
 them, and return them to the Sheriff: 
 
 "I , do swear that I am not of kin to tho 
 
 plaintiff htamhui h'r) or to the defendant (iiamiiui ]nm), or in any 
 way niterested in tho lands out o'' which the assignment of dower is to be 
 made by me, and that I will honestly, impartially, and to tho best of my 
 skill and ability, execute and perform tho duties imposed upon 
 me by the appointment of , Esquire, Sheriff of the 
 
 County of , as a Commissioner for the admeasurement 
 
 of dowor between the said plaintifl" and the said defendant accordinsj; to 
 law." 
 
 R. S. 0. 1887. c. 5(), s. 10. 
 
 Commission- 
 ers when 
 sworn to be 
 officers of the 
 Court. 
 
 8. After taking and subscribing such affidavit, th( Cinnmis- 
 sioners and each of them shall, for all purposes in the fulfil- 
 ment of the duties by law required of them, be considered as 
 officers of the Court, and shall be entitled to the same immun- 
 ities and protection and be subject to the same liabilities and 
 proceedings as a Sheriff, in the discharge of his duty. R. S. O. 
 1887, c. 56, s. 11. 
 
Sec. 9 (5). 
 
 ACTIONS OF DOWER. 
 
 Chap. G7. 
 
 253 
 
 us- 
 
 tlio 
 
 any 
 be 
 my 
 
 pun 
 the 
 
 lent 
 
 I' to 
 
 10. 
 
 us- 
 
 Ifil- 
 
 as 
 
 mn- 
 
 Micl 
 
 o. 
 
 9. It .shall be the duty of the Commissioners : Their duties. 
 
 1. To admeasure, designate and lay off without delay, by Xo admeasure 
 sutficient marks, descriptions, boundaries or monuments, one- dower by 
 tliird of the lands and premises mentioned in the writ of """ *' ^ °" ' 
 
 assignment, according to the nature of the land, whether 
 meadow, arable, pasture or woodland, being a part of the lot or 
 parcel of land and premises mentioned in the writ, and having 
 always due regard to the natui'e and character of the buildings 
 and (ircctions cm such lands and jjremises ; 
 
 2. To ascertain and determine what permanent improve- ascertain im- 
 nionts have been made upon the lands and premises since the P^''^^ en'ents, 
 death of the plaintiff's husband, or since the time her 
 husband alienated the same to a purchaser for value, and 
 
 if it can be done they shall award the dower out of such 
 part of the lancls as does not embrace or contain such per- 
 manent improvements ; but if that cannot be done, tliey shall 
 deduct either in quantity or value from the portion to be by 
 them allotted or assigned to the plaintiff in proport: »n to the 
 benefit she may or will derive from the assignment to her as 
 part of her dower of any part of such permanent improvements ; 
 
 3. If from peculiar circumstances, such as there being a mill a"d, where 
 (jr mills or manufactory upon the land, the Conunissioners aKsignboundB, 
 cannot make a fair and just assignment of dower by metes etc., to assess 
 and bounds, they shall assess a yearly sum of money, being as » y^^^ly sum. 
 near as may be one-third of the clear yearly rents of the pre- 
 mises, after deducting any rates or assessments payable there- 
 on, and in assessing such yearly sum they shall make allowances 
 
 and deductions for permanent improvements, as above provided 
 for, and in their report to the Sheritl' they shall state the 
 amount of such yeai'ly sum and set forth all the evidence taken 
 by them in relation to the same, such evidence to be reduced to Evidence 
 writing and taken upon oath (which oath any one of the Com- °" "**''• 
 missioners is hereby authorized to administer) and to be sub- 
 scribed by the witness examined ; 
 
 4. Such yearly sum .shall be a lien upon the lands mentioned Such sum to 
 in the writ of assignment, unless the Conunissioners specially }'^ ^ •'"" "" 
 direct otherwise, and make the same issuable and payable out otiierwise di- 
 of some specific portion of the lands, and the same shall be rected. 
 recoverable by distress as for rent or by action against the 
 
 tenant of the freehold for the time being ; 
 
 5. The report of the Commissioners shall be in writing, sub- Report of 
 scribed by them and directed to the Sheriff, and shall contain a Commission- 
 full statement of their proceedings, and where the dower is 
 assigned by metes and bounds, shall distinctly point out and 
 describe the same, and the posts, stones or other monuments 
 designating the boundaries, and for the purpose of planting 
 
 and marking the posts, stones or monuments, the Conunis- 
 sioners may, if necessary, employ chain-bearers and labourers. 
 R. S. O. 18^7, c. 5(), s. 12. 
 
 m 
 
 •-It' 
 
254 
 
 Chap. 67. 
 
 ACTIONS OF DOWER. 
 
 Sec. 10. 
 
 S( 
 
 Sheriff may '^' The Sheriff may, in his discretion, upon the request of 
 
 enlarge time tlie Comiiiissioner.s, enlarge the time for making their report, 
 
 for report. for not moi-e than ten days, and he shall, within twenty- four 
 
 hours after the receipt thereof, endorse thereon the day and 
 
 Return of writ h<mr of the receipt, and he shall then forthwith return the 
 
 with report, ^yi-jt of admeasurement of dower, together with the report and 
 
 all pa) rs annexed thereto, to the office wherein the action was 
 
 comm iced and carried on. K. S. O. 1887; c. 56, s. 13. 
 
 Either party 
 may appeal 
 from report. 
 
 C^ 
 
 
 :;rr,.; 
 
 
 II. Either party may, within a month from the filing of 
 the Sheriff's return to the writ of a.ssignment, or within such 
 further time as a Court or Judge may under special circum- 
 stances allow, appeal from the report of the Commissioners to a 
 Judge in Court, upon grounds apparent on the report and papers 
 filed therewith, or may apply to set aside the same, upon such 
 other grounds verified by affidavit as the Judge may see tit, every 
 Order of Court such ground being set forth in the notice served, and the Judge 
 thereon. may vary or amend the report in any way and to any 
 
 extent that he may deem proper, or refer the same back to 
 the Commissioners for amendment in whole or in part, with 
 such directions as to law or fact as he may deem proper, or 
 he may confirm the same, or may annul and set aside the report 
 and may appoint three new Comiiissioners or direct that the 
 Sheriff shall do so, and the new Commissioners shall have the 
 same powers and execute the same duties, and be subject to the 
 same conditions and responsibilities as are in that behalf here- 
 inbefore expressed, and the I'eport of the new Commissioners 
 shall be treated as i*" no other report had been previously made, 
 and shall he dealt with and proceeded upon accordingly. 
 R. S. O. 1887, c. 56, s. 14. 
 
 Effect of re- 1 'i. If the report is moved against upon the ground of 
 
 port being nnsconduct or fraud on the part of the Commissioners, the 
 for miscon- Court may, in its discretion, make them parties to the pro- 
 duct, etc. ce(>ding and if wilful misconduct or fraud be established in the 
 opinion of the Court, the report may be set aside and the com- 
 missioners be adjudged to pay to the parties injured all the 
 costs which have been incurred and have been rendered use- 
 less by such misconduct or fraud, and all the costs of the pro- 
 eei-ding to set aside tlie report ; and the payment maj' be 
 enforced by the like process and proceedings as are from 
 time to time in use to ccmipel a Sheriff to pay costs of any 
 summary proceeding against him. R. S. O. 1887, c. 56, s. 15. 
 
 Costs of 
 appeal. 
 
 13. The appeal or application may be dismissed with 
 or without costs, and the Court may order the party at whose 
 instance, or on whose complaint or representation, the Com- 
 missicmers may have been made parties to the proceeding to 
 pay the Connnissioners their costs ; and if the appeal or appli- 
 cation is dismissed,or if the report is not appealed from or mo\ed 
 against within the proper time, the report shall thenceforth be 
 final and conclusive on all parties to the action of dower, and 
 
 th 
 
Sec. 17. 
 
 ACTIONS OF DOWER. 
 
 Chap. 67. 
 
 255 
 
 a copy oi the report, certified by the Registrar under the seal Copy of report 
 
 ^ when final to 
 
 be registered. 
 
 of the Court, shall be registered in the proper Registry Office "'^''" "'"^^ *" 
 
 for whicli service the Registrar of deeds shall be entitled to 
 receive SI. R. S. 0. 1887, c. 56, s. 16. 
 
 14. After such registration the plaintiff shall be entitled to Plaintiff may 
 sue out a writ directed to the proper Sheriff, comniandina' him ^f^'^'^ legiHtra- 
 to put lier nito possession or the lands anti prennses assigned writ of posses- 
 and admeasured to her for her dower, and to levy all such costs **'""• 
 as by the judgment and any order of Court, or either of them, 
 have been awarded to her against the defendant. R ;', O. 
 1887, c. 5G, s. 17. 
 
 15. — (1) In case it is desired by either party to produce Mode of pro- 
 any witness l)efore the Commissioners, such party may, curing attend, 
 on application to tlie Court or to a Judge, on affidavit nesses before 
 that the evidence of such witness is necessary, obtain an Coumiission- 
 order commanding the attendance of the witness before 
 the Commissioners, and if in addition to the service of 
 the oixler, an appointment of time and place of attendance in 
 obedience thereto, signed by one of the Commissioners, be 
 served on the person whose evidence is required, either with 
 or after the service of the order, non-attendance shall be 
 deemed a contempt of Court, and shall be punishable accord- 
 ingly 
 
 (2) The person so reiiuired to attend shall be entitled to be Payment of 
 paid the same fees, allowance and conduct money as if he witnesses, 
 had been subpcenaed as a witness in an ordinary action, but no 
 witness shall be obliged to attend more than two consecutive 
 days. R. S. O. 1887, c. 56, s. 18. 
 
 Hi. The Commissioners shall be entitled to receive from the Commission 
 plaintiff the sum of S-i for each day's attendance, not, however, ""' f^"^- 
 to exceed two, and may also charge at the rate of twenty 
 cents for every hundred woi'ds for drawing up their report, 
 and ten ce.its for every hundred words of each copy furnished 
 by them to either party. R. S. O. 1887, c. 56, s. 19. 
 
 1 T. The plaintiff shall pay the costs of suing out, and the By whom 
 costs of the Commis.sioners in executing the writ of assignment ^"^^ ^° ^ 
 of dower, and making the report thereof, but each party shall 
 pay his own costs of witnesses, or of counsel or solicitor 
 attending before the Commissioners. R. S. 0. 1887, c. 56,s. 20. 
 
 
 and 
 
256 
 
 ACTIONS OF DOWER. 
 
 
 NOTES. 
 
 Agreement on Assignment- At luniinioii law it is (|uite comiwtciit (ov the 
 hell- ai!(l (lowress to iij^ree to asHign dowoi' or an e(iuivak'iit for it liv parol ; 
 turk on Dower, p. 2(59 ; Loacli v. (Shaw (ISOO) S Gr. 494, (Sec. 1 of this Act 
 do( s not ahroj,'ate the conunoii law ; Fraser v. fJunn (1>S79) 2" (Jr. (i.'J. 
 
 Aisignment by Commissioners. Where two-thirds of a dwelling lionso stoid 
 upon tiie land out of wliich dower was elaiined and the remaining tliird upon 
 the adjoining land wliieh was not dowalile, it was iield tliat tlie eoniniisHioners 
 liad not under sec. 9 (3) power to assess a yearly sum. Tliey were not however, 
 l)ound to assign a portion of the Imilding hut niiglit give an eipiivalent ; 
 Mclntyre V. Crocker (1893) -iSO.R. 309. Wliere tlie suhjeit of the a.ssign- 
 nient is a iiouse, the wiiole of particular rooms may he set oH'as dower, Doe d. 
 Riddell V. (iwinnell (1.S41) 1 Q.H. ()S2 ; Cameron on Dower 3Ks. 
 
 The dower must l)e assigned hv metes and liounds ; hut if tlie assignment is 
 irregular in this respect, the tenant of the freehold may l)y his acts v^onHrm it ; 
 Fisher v. C.race (1809) 2S U.C.R. 312. 
 
 The Report of the commissioners need not set out tiieir reasons nor will it he 
 disturhed unless upon the clearest evidence of injustice ; Roliinet v. Pickering 
 (1879)44 U.C.R. 337. 
 
 Permanent Improvements. The clearing of land is a permanent improve- 
 ment ; Rol)inot v. I'ickeiing (1879) 44 U.C.R. 337. Though at tlio time of the 
 alienation hy tlie iiUol)and, the land may have iiad no reiitahle value, yet if it 
 afterwards hecame rentalile l)y improvements a portion of the rent must he 
 attriluited to the land ; Wallace v. Moore (1871) 18 <ir. oCtt. 
 
 
 0-" 
 
Sec. 2, 
 
 ABSrONDINO DEBTORS. 
 
 Chap. 79. 
 
 257 
 
 tiK. 
 
 CHAPTER 79. 
 
 An Act respecting Absconding Debtors. 
 
 
 Abscondincj PEBTOK DEFINKI), s. 1. 
 Procedure to obtain Attachment, 
 
 .s,s. 2, ;t. 
 
 What i'uoi'ertv .may ise attacheip, 
 
 8. 4. 
 Peri.sharle 1'Koi'erty, b8. 5, 6. 
 Divi.sionCoirt Attach.me.nt Sri'ER- 
 
 SEDEO, 8. 7. 
 
 Sheriff'.s co.sts, ss. vS, 9. 
 
 Sale of Chattel.s, s. 10. 
 Attachment of debts die to thk 
 
 ABSCONIUXr. debtor, 88. 11, 12. 
 
 Actions by Sheriff for outstand- 
 
 IN(i DERIS, ss. 13-17. 
 Di.stribution of proceeds, ss. 18. 
 
 19. 
 Surplus to be restored to debtor, 
 
 K. 20. 
 
 HER MAJESTY, by and with the advice and consent of 
 che Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 1 . If a person resident in Ontario indebted to any other Who to be 
 person, departs from Ontario with intent to defraud his credi- ^twondln'* *" 
 tors, and at the time of his so departing is possessed to his own debtor, 
 use and benetit of any real or personal property, credits or 
 effects therein not exempt by law from seizure, he .shall be 
 deemed an absconding debtor, and his propei'ty, credits or 
 effects aforesaid, may be seized and taken for the satisfying of 
 his debts by an order of attachment. R. S. 0. 1887, c. GO, s. 1. 
 Con. Rules 1897, No 1,058. 
 
 ,1' 
 
 proc;edurk to obtain attachment. 
 
 In the High Court. 
 
 *£. Upon affidavit made by a plaintifi', his servant or Proceedings 
 agent that a per.son so departing is indebted to the plaintiff "i*""^*'^'''*^'** 
 ill a sum exceeding Si 00, and stating the cause of action, and f.ndantluvH 
 that the deponent has good reason to believe and does verily •■^I'^L'inded. 
 believe that the person has departed from Ontario and has 
 gone to (stating some place to which the ab.sconding debtor is 
 believed to have fled, or that the deponent i.s unable to obtain 
 any information as to what place he has fled to), with intent 
 to defraud the plaintiff of his just ducis, or to avoid being 
 arrested or served with process, and was, at tlu^ time of his 
 so departing, po,s.sessed of real or personal property, credits or 
 effects, not exempt by law fi'om seizure, to his own use and 
 benefit in Ontario, and upon the further affidavit of 
 U. 
 
c:::: 
 
 268 
 
 Chap. 79. 
 
 ABSOOXDINO DEBTOUS. 
 
 Sec. 2. 
 
 (3rder of 
 
 two uthor persons, that thoy are wt-ll acfjuainted with 
 the debtor mentioned in tlu- first named affidavit, 
 and have good reason to believe and do believe that the 
 debtor has departed from Ontario with intent to defraud the 
 attachmsnt to plain^ifi", or to avoid being arrested or served with process, 
 the High Court, or a Judge thereof, or the Judge of a County 
 Court, may make an order in the High Court for the attach- 
 ment of the property, credits and etiects oH the debtor, and 
 may in the order appoint the time for the defendant's putting 
 in special bail, which time shall be regulated by the distance 
 from Ontai'io of the place to which the absconding debtor is 
 supposed to have fled, having due regard to the means of and 
 neccs.sary time for postnl or otlicr connnunicntion. K. S. O. 
 1887, c. 06, s. 2. 
 
 In County Cottrtn. 
 
 li. In case the sum claimed is within the jurisdiction of the 
 Cmmty'court ^'"""ty Courts, any such Court or the Judge thereof, may in like 
 jurisdiction, manner make an order of attachment in that Court, and the 
 
 proceedings thereon shall be the same as in this Act provided. 
 
 R. S. O. 1887, c. 66, s. :i 
 
 l'roceeding.siii 
 caacH within 
 
 WHAT PKOPERTY MAY BE ATTACHED. — INVENTOKY, ETC. 
 
 
 •rr»',.:, 
 
 Sheriff to 
 attach all the 
 l)roi)erty and 
 credits of 
 defendant. . 
 
 Inventory to 
 be made. 
 
 KxemptionH. 
 
 4. — (I) All the property, credits and eti'ects of an absconding 
 debtor, including all rights and shares in any association or 
 corpoi'ation, may be attacheil in the same manner as they 
 might be seized in execution ; and the sheriff to whou) an 
 order of attachment is directed shall forthwith take into 
 his charge all such property and effects according to the 
 exigency of the ordei-, and shall be ivllowed all nece.ssary 
 disbursements for keeping the same, and he shall innnediately 
 call to his assistance two substantial freeholders of his county, 
 and with theii" aid he .shall make a just and true inventory of 
 all the personal property, credits and eft'ects, evidences of title 
 or debt, books of account, vouchei-s and papers that lie has 
 attached, and shall return such inventory signed by himself 
 and the said freeholders, together with the order of attachment. 
 R. S. O. 1887, c. 66, s. 18. 
 
 (2) Goods exempt from seizure under execution .shall not 
 be liable to .seizure under the order of attachment. R. S. O. 
 1887, c. 64, s. 4, part. 
 
 For property exempt from execution and attachment see 
 Chaps. 77 and 150.} 
 
 PEUISTTABLE PROPERTY. 
 
 Sale of perish- *>■ l" case horses, cattle, .sheep, pigs, or perishable goods 
 ttblegoodHon or chattels, oi* such as from their nature (as timber or 
 ^ecurityf'^""^ staves) cannot be safely kept or conveniently taken care of, 
 
atidii or 
 as tliey 
 loiii an 
 iL' into 
 to tlio 
 ecossary 
 lodiately 
 county, 
 iitory of 
 of title 
 ho has 
 himself 
 
 le troods 
 Iniher or 
 care of, 
 
 Sec. 7. 
 
 ABSCONDING DEBTORS. 
 
 Chap. 79. 
 
 259 
 
 are taken under an order of attachment, the sheriff who at- 
 taches the same shall have them appraised and valued, on oath, 
 by two competent persons ; and in case the plaintiff desiros it 
 and deposits with the sheriff a bond to the defendant executed 
 by two freeholders (whose sufficiency shall be approved of b\' the 
 sheriff), in double the amount of the appraised value of tl e 
 articles, conditioned for the payment of the appraised value 
 to the defendant, his executors or administrators, to<j;ether 
 with all costs and damaoes incurred l)y the seizui-e and 
 sale thereof, in case judgment is not olitained by the plaintiff 
 against the defendant, then tlie sheriff .shall proceed to sell 
 all or any of such enumerated articles at auction, to the 
 highest bidder' giving not less than six days' notice of the 
 sale, unless any of the articles are of such a nature as not to 
 allow of that delay, in which case the sheriff may sell such Sheriff to.hold 
 articles last mentioned forthwith ; and the sheriff shall hold proceeds, 
 the proceeds of the sale for the same purposes as he would 
 hold property seized under the attachment. R. S. O. 1<S87, 
 c. 06, s. 14. 
 
 a. If the plaintiff, after notice to himself or his solicitor of The goods to 
 the seizux'e of any articles enumerated in the last preceding ^!^ T''^*"''^'^ 'f 
 section, neglects or refuses to deposit the bond, or only to give suffi-** 
 offers a bond with sureties insufficient in the judgment of the cient security. 
 sheriff, then, after the lapse of four days next after the notice, 
 the sheriff shall be relieved from all liability to the plaintiff 
 in respect to the articles so seized, and the sheriff shall 
 forthwith restore the same to the person from whose possession 
 he took such articles. R. S. 0. 1887, c 66, s. 15. 
 
 WHl?N DIVISION COURT ATTACHMENT SUPERSEDED. 
 
 7. If the sheriff to whom an o^-der of attachment is delivered 
 for execution, finds any property or effects, or *'">e proceeds of 
 any property or effects which have been sold as perishable, 
 belonging to the absconding debtor named in the order of 
 attachment, in the custody of a constable or of a bailiff or 
 clerk of a Division Court by virtue of a warrant of attach- 
 ment issued or money paid into Court under a garnishee sum- 
 mons under The Division Courts Act, the sheriff shall demand 
 and take from the constable, bailiff or clerk, the property or 
 effects, or the proceeds of any part thereof and the con- 
 stable, bailiff or clerk, on demand by the sheriff and notice 
 of the order of attachment, shall forth witfi deliver all the pro- 
 perty, effects and proceeds aforesaid to the sheriff, upon 
 penalty of forfeiting double the value of the amount thereof, 
 to be recovered by the .sheriff, with costs of suit, and to be 
 by him accounted for after deducting his own costs, as part of 
 the property and effects of the absconding debtor ; but the 
 creditor who has duly sued out the warrant of attachment may 
 proceed to judgment against the abscondhig debtor in the 
 Division Court, and on obtaining judgment, and serving a 
 
 
 " 4"! 
 
 « 
 
 ■ 3ir! 
 
 
 ' .*•'■• 
 
 Proceeding if 
 
 ■■'*' 
 
 Sheriff finds 
 
 
 property in the 
 (lands of a 
 
 
 
 BailifforClerk 
 
 
 of a Division 
 
 
 Court. 
 
 
 Rev. Stat, 
 c. 60. 
 
 Creditor in 
 DiviaionCourt 
 may proceed to 
 judgment. 
 
360 
 
 Chap. 79. 
 
 AIISCONDING DEBTORS. 
 
 Sec. 7. 
 
 memorandum of the amount thereof, and of the costs to be cer- 
 tified under the hand of the clerk of the Division Court, such 
 creditor shall be entitled to satisfaction in like manner as, and 
 in ratable proportion with, the other creditors of the abscond- 
 ing debtor who obtain judgment as hereinafter mentioned. 
 R. S. O. 1887. e. 06, s. 16." 
 
 sheriff's costs. 
 
 Sheriff 'h costs 8. The costs of tho sheriff for seizing and taking charge 
 and how paid, ^f property, credits and efiects under an order of attachment, 
 including the sums pjaid to persons for assisting in taking 
 an inventory, and for appraising (which shall be paid for at the 
 rate of Si for each day actually recjuired for and occupied in 
 making the inventory or appraisement) shall be paid in the first 
 instance by the plaintiff", and may, after liaving been taxed, be 
 recovered by the sheriff' by action in any Court having juris- 
 diction, and such costs shall be taxed to the party who pays 
 the same as part of the disbursements in the action against 
 the absconding debtor and be so recovered from him. R. S. 0. 
 1887, c. 66, s. 17. 
 
 Cost of new 9. The sheriff having made an inventory and appraise- 
 *V"*d'^^ ""* ment on the ffrst order of attachment against any absconding 
 ceipt of new debtor, shall not be required to make, nor shall he be allowed 
 "Tit- to charge for, a new inventory and appraisement upon a sub- 
 
 sequent order of attachment coming into his hands. R. S. O. 
 1887, c. 66, s. 18. 
 
 SALE OF CHATTELS. 
 
 Attachment. 
 
 Sale of goods J^^- — (1) The Court or a Judgo may, at any time after an 
 under order of order of attachment has been in the hands of a sheriff, or other 
 officer, for one month, direct him to sell any goods or chattels, 
 except chattels real which have been attached. 
 
 (2) An order for sale may be made upon the application of 
 a creditor having an order of attachment, or a writ of execu- 
 tion, in the hands of the sheriff, and shall be made if the 
 Court or Judge is satisfied that the alleged debtor has in fact 
 absconded indebted to the applicant, and that the property 
 attached is not sufficient to pay in full the claims of the 
 persons who have obtained orders of attachment, or execution, 
 but this provision shall not be construed to restrict the author- 
 ity of the Court or Judge to make an order in other cases ; and 
 in all cases terms may be imposed. 
 
 (3) The costs of the first order of attaclnnent shall have 
 priority over all execution debts and other costs. R. S. O. 1 887, 
 c. 66, s. 20. 
 
 [As to sdleti of shares, etc., in Companies, see sees. 10 to 16 
 of" The Execution Act," Cap. 77.] 
 
Sec. 14. 
 
 ABSCONDING DEBTOIIS. 
 
 Chap- 79. 
 
 201 
 
 ATTACHMENT OF DEUTS DUE TO AUSCONniVO nKlJTOl;. 
 
 an 
 
 16 
 
 11. In case notice in writing of tlio onk'v of attachment has Liubility of 
 been tlnlv served by the sherifl', or by or on behalf of !'Ti'TJ"i^" 
 the planitin, upon a person owing a debt or ilemand to, absconding 
 or who lias the custody or possession of property or effects ''^^'"'' 'V^*"' 
 of, an absconding debtor, and in case such person after tachment. 
 such notice pays the debt or demand or delivers the property 
 or eft'ects to the absconding debtor, or to any one for him, 
 he shall be deemed to have done so frauilulently, and if the 
 plaintiff recovers judgment against tlie absconding debtor, and 
 the property and effects seized by the sheriff' are insufficient 
 to satisfy the judgment, such person .shall be liable for the 
 mount of the debt or demaiul, and for tlie property and 
 effects or the value thereof. R. S. O. 1887, c. 66, s. 21. 
 
 1 fJ. If after notice as aforesaid a person indebted to the ab- Debtor if sued' 
 sconding del)tor, or having custody of his property as afore- ^7 defendant 
 said., is sued for the debt, demand or property f)y the absconding notice of at- 
 debtor, or by the person to whom the absconding debtor has tachment may 
 assigned the debt, demand or property since the date of the order proceedings." 
 of attachment, he may, on affidavit, apply to the Court or a 
 Judge, to stay proceedings in the action against himself, until 
 it is known whether the property and effects so seized by tha 
 sheriff, ai'e sufficient to discharge the sum or sums recovered 
 against the absconding debtor, and the Court or Judsfe mav 
 direct an i.ssue to try any disputed (piestion of fact or maker 
 such other order as is proper. R. S, 0, 1887, c. 66, s. 22. 
 
 WHEN SHERIFF MAY SUE FOR OUTSTANDING DEBT.S. 
 
 1 tX. If the real and personal property, credits and effects of 
 an absconding debtor px'ove insufficient to satisfy the executions 
 obtained against him and claims certified under The Creditors' 
 Relief Act, .the sheriff may, by order of the Court or a Judge, 
 to be granted on the application of any plaintiff or claimant sue 
 for and recover from any person indebted to the absconding 
 debtor, the debt, claim, property or right of action attachable 
 under this Act, and owing to or recoverable by the abscond- 
 ing debtor, with costs of suit, in which action the defendant 
 shall be allowed to set up any defence which would have 
 availed him against the absconding debtor at the date of the 
 order of attachment, and a recovery in the action by the .sheriff 
 shall operate as a dischai-ge as against the absconding debtor ; 
 and the sheriff .shall hold and apply the moneys recovered 
 by him as part of the assets of the absconding debtor. R. S. 0. 
 1887, c. 66, s. 23. 
 
 14. The statement of claim in the action by the sheriff Averment to 
 shall contain an introductoiy averment to the effect following: sheriff's state- 
 ment of claim. 
 
 
 J 
 
 
 J> 
 
 
 V 
 
 
 
 Debtor of de-- 
 
 
 fendant may 
 
 
 be sued by 
 
 
 sheriff if de- 
 
 
 fendant's pro- 
 
 
 perty is 
 
 
 not sufficient 
 
 
 to satisfy 
 
 
 claims. 
 
 
 Rev. Stat. 
 
 
 0. 78. 
 
 
or-- 
 
 C^' 
 
 W2 
 
 Chap. 79. 
 
 ABSCONDING DEBTORS. 
 
 Sec. 14. 
 
 The plaintiff is Shoritt' of {etc. ) and sues under the provisions of 
 
 The A(t renpectiiuj Ahscondhuj Dtbton, in order to recover from C. D., 
 debtor to E. F., an abscondinj; debtor, the debt due {or other claim, 
 aecordiiKj to the facts) by the said V. D., to the said E. F., etc. 
 
 R. S. O. 1887, c. 66, s. 24. 
 
 Sheriff not 1 H The sheriff' shall not be bound to sue as aforesaid until a 
 
 untiUreditw' ^°"*^^ ^'^ <?iven by one or more of the plaintiffs or claimants with 
 
 jfivpB bond of two sufficient sureties, who may be other of the plaintiffs or 
 
 indemnity. claimants, payable to the sheriff" by his name of office in 
 
 double the amount or value of the debt or property sued for, 
 
 conditioned to indemnify him from all costs, losses and expenses 
 
 to be incurred in the prosecution of the action or to which he 
 
 may become liable inconsequence thereof. R. S. 0. 1887, c. 66, 
 
 8. 25. 
 
 Sale uf debtH 
 by sheriff. 
 
 Rev. Stat. 
 0. 78. 
 
 1 ii. If the real and personal property, credits and effects of 
 an absconding debtor prove insufficient to satisfy the execu- 
 tions obtained against him and claims certified under The 
 Creditors' Belief Act, and if there remain debts due to the 
 absconding debtor, the attempt to collect which would be more 
 onerous than beneficial to his creditors, the sheriff" may, by an 
 order of the Court or a Judge, sell such debts by public auction 
 after such advertisement thereof as the Court or Judge may 
 order, and pending such advertisement the sheriff shall keep 
 a list of the debts to be sold open for inspection at his office, 
 and shall give free access to all documents and vouchers ex- 
 planatory of such debts ; but all debts amounting to more 
 than $100 shall be sold separately, unless the Court or Judge 
 shall otherwise order. 52 V. c. 11, s. 2, part. 
 
 P'J'ohaser 1 1_ The person who purchases a debt f roai the .sheriff" may 
 
 in his own " ^^^ for it in his own name, and without any further order of 
 name. the Court or Judge, as effectually as the absconding debtor 
 
 might have done, and as the .sheriff' is by section 13 hereof 
 authorized to do, and a bill of sale, which may be in the form 
 in tlie Schedule to this Act, or to the like effect, signed and 
 delivered to him by the sheriff, shall be prima facie evidence 
 of such purchase and of the sheriffs authority to sell without 
 proof of the handwriting of the sheriff, or of the writ or order, 
 or of the sale, and no warranty on the part of the sheriff that 
 the debt is due or otherwi.se shall be created by such .sale and 
 conveyance, and in any action by the purchaser of such debt 
 the defendant shall be allowed to set up any defence which 
 would have availed him against the absconding debtor at the 
 date of the order of attachment. 52 V. c. 11, s. 2, part. 
 
 DISTRIBUTION OF PROCEEDS. 
 
 .Who entitled 1 8. lu case the property and effects of the absconding 
 to share if^pro- debtor are insufficient to satisfy the executions and other claims 
 
 msufficient to Certified, none shall be allowed to share, unless their proceed- 
 pay all. 
 
Sched. 
 
 ABSCONDING DKUTORS. 
 
 Chap. 79. 
 
 208 
 
 ings nmler this Actor The Crrilltors' Relltf Act, or the pro- r^v gt,t. 
 visions of The JJlvinion Coiirtn Act respecting absconding cc. 78 and 60. 
 debtors were commenced within six mcmths from the date of 
 the first order of attachment. R. S. O. 1887, c. G6, s. 20. 
 
 10. The Court or a Judge may delay the distribution, in Delay of dis- 
 order to give reasonable time for the obtaining of judgment ^[a^,",^ estab*'^ 
 cr allowance of claim by persons who have connnenced pro- lished. 
 ceedings in due time against the absconding debtor. R. S. O. 
 1887, c. 66, s. 27. 
 
 SURPLUS TO BE RESTORED. 
 
 ?iO. In case at any time the sheriff has levied for disti'ibu- When all seiz- 
 tion sufficient to pay all debts and claims for which proceed- a"^gatfgfi^* 
 ings had then been connnenced, including costs, and one month remainingpro 
 has elapsed without proceedings being taken in respect of any ^"^[f^eJe^^up 
 other debt or claim, or in ca.se after a period of one month from 
 a distribution under the order of the Court or a Judge, 
 whichever last happens, and after satisfying the several 
 plaintiffs and claimants entitled, there is no other writ of 
 attachment or execution against the same property and effects 
 in the hands of the .sheriff" or claim certified against the 
 debtor, then, all the property and efiects of the absconding 
 debtor, or unappropriated money the proceeds of anj' part of 
 such property and effects, remaining in the hands of the Sheriff, 
 together with all V)ooks of account, evidences of title or of 
 debt, vouchers and papers whatsoever belonging thereto, shall 
 be delivered to the absconding debtor or to the person or per- 
 sons in whose custody the same were found, or to the authorized 
 agent of the absconding debtor, and thereupon the responsibility 
 of the sheriff in i-espect thereto shall detern\ine. R. S. O. 1887, 
 c. 66, s. 28. 
 
 
 SCHEDULE. 
 
 BILL OF SALE OF A DEBT. 
 
 {Section 17.) 
 
 ng 
 ms 
 
 In consideration of the sum of $ , the receipt whereof I do 
 
 hereby acknowledge : 
 
 I, A. B., Sheriff of the Connty of , under and by virtue 
 
 of an order of attachment dated , issued under The Act 
 
 respecting Ahscondhui Debtors, .igainst the real and personal property, 
 credits and effects of C. D., an absconding debtor, and under and by 
 virtue of an order in that behalf, hereby sell and assiain to E. F. all 
 claim by the said absconding debtor, against O. H., of {de»cvibinq the 
 debtor), with evidences of debt and securities thereto appertaining ; but 
 without any warranty of any kind or nature whatsoever. 
 
 52 V. c. 11, Sched. and Con. Rules, 1897, No. 1,058. 
 
K 
 
 264 
 
 ABSCONDINO DEBTORH. 
 
 NOTES. 
 
 -J.. 
 
 
 -!f 
 
 • 
 
 Resident' I lu' word " icsideiit '" is iiii anihiguoUH woniaiiil may receive dif- 
 ferent meaiiiii^;s aciordiiij; to the Statute in wliieli it is tVamd; Re Howie, ex 
 parte Hieidl ( ISSO) Iti ( 'ii. I). 4S4. Ordinarily residence denotes tlie )ilaee 
 wheie an individual eatd, diinks and sleeps or where liis family oi' iiisservanls 
 eat, drink and sleej) ; H. v. North ( 'urry ( IH'_'.">) 4 H&('!i:.!t; R. v. Hanniion<l 
 (1S.VJ) 17 (>).!!. 7712; (iroj,'an v. Loudon * .M. Ins. Co. (ISHO) .").•{ L.T. 7(il. Hut 
 i\ man mav reside in one ))laci' and his wife and family in anothei-; Cartwright 
 V. Hinds ('l,ss;{) ;{ O.R. . '184 : Wdlinj^jtou v. Wliitchuich (ISli;!) 4 15. & S. lilfi. 
 Where a man worked in (^iieliec liut his wife and family lived across the river 
 in Ontario where he often came to see them l.e was said to have a suHicieut 
 residence inOutaiio to make liim subject to l)ivisiou('o\nt |)rocess; Re I^idowcer 
 & .Salter ( lS7(i) t> I'. R. ;{•>."). Wliere a man lias no pi'iuianent residence lu" 
 " dwells" at the |)lace where he may he teiuiHiiaiily residing, Alexander v. 
 Jones (lS(i(i) L. R. 1 Kx. \'.\',\. Rut if the residence he in a foreign country merely 
 lodging in Ontario for a tem|)orary ))urpose will Ite iusutlicient to constitute a 
 person a resident ; Mac<l()ugall v. I'aterson (IM.")1) II V.H. '■'>'>: .Marsh v. Cou- 
 .piest (18(i4) I" C.B.N. S. 41S; Tayh)r v. Nicholl (lS4r)) 1 U. (,'. R. 41(1. 
 Foreigners liowever who come into the juiisdiction and (!outra<'t debts may 
 nc(juire a sufficient residence to make tlieir property attaeliahle ; Fold v. 
 Lusher (1,S.S4) 3 O.S. 4-_'8 ; Higgins v. Brady (18ti4) 10 U.C.r..J. 2(18 ; Kcrstcr- 
 man v. McLellan (I88S) 1(1 P.R. 122. A man may liave two piriiniiiiiil 
 places of resideiue ; Butlei' v. AMewhite (I8.")<t) (5 C.b.N.S. 747 ; Pilgrim v. 
 KnatciiliuU (IHCi,")) 18 C.fJ.N.S. 798. Com|ndsorv residence within thejuris- 
 <liction e.g. in |)rison does not constitute a person a resident, Fournier v. 
 Hogarth ( 1 8!t2) l."> I'.R. 72; Dunston v. I'aterson (18.-.8) ."> C.B.N. S. 2()7. 
 
 Indebted. The debt nnist be both due and payable before the action isconi- 
 nionced, Kyle v. Barnes (1883) 10 ]*. R. 20. An order cannot be granted wiiere 
 the cause of action isfor unliipiidated damages, Clock v. .Alfeld (183()) r)().S. M-i; 
 Clark v. Ashtield (1S37) R. &■■ J. Dig- 411)4. The Crown nuiv ])roceed on a 
 forfeited recognizance, R. v. Stewart (1880) 8 P.R. 2il7. 
 
 Departs from Ontario with Intent. It is necessaiy that the debtor shall 
 liave actually dejjarted from Ontario liefore the order is made. The departure 
 nuist have been with intent to defraud his creditors or the plaintiU'or to avoid 
 being arrested or served with process. If the creditor lias reasonable groumis 
 for inferring such intent the order will not be set aside ; Scott v. Mitchell (1881 ) 
 8 P.R. ."il8. Depaitiire for a mere temporary purpo.se is insufficient, Shaw v. 
 McKenzie (1881) (iS.C.R. 181. A departure to avoid arrest on criminal process 
 is sufficient, R. v. Stewart (1880) 8 P.R. 207 Leaving Ontario permanently 
 M'ithout making provision for payment of his debts would constitute a man an 
 absconding delitor, Coffey v. Scane (189.")) 22 A. R. 269 ; 2;") O.R. 22 ; Ex parte 
 Osborne (1813) 2 V. & B. 177. See also the cases collected in notes to R.S.O. 
 c. 80. 
 
 Possessed of Property. Tlic debtor must be pos.sessed of propert\' at the 
 time of dejiarting, Higgins v. Brady (1864) 10 U.C.L..J. 268; Waketichl v. 
 Bruce (187.".) .1 P.R. 77 ; Offay v. Offiiy (1867) 26 U.C.R. 363. 
 
 Not Exempt f^om Seizure. For exemptions see R.S.O. c. 77. 
 
 Affidavits for Order of Attaclunent. The affidavits for the attachment should 
 be entitled in the action in which the writ has issued, C.R. 320. The debt 
 sliould be as certainly sworn to as in an affidavit for an order for arrest, McKenzie 
 V. Russell (18.33) 3 O.S. 34."). See as to proof of debt notes to R.S.O. c. 80. 
 
 It must be stated distinctly that the debtor was a resident of Ontario "lately 
 doing business in Ontario " is insufficient, Higgins v. Brady (1864) 10 U.C.L..f. 
 268 ; but the residence mav be shown by any of the affidavits used on the 
 application, Wakefield v. Ijruce (187")) .") P.R. 77. 
 
 The departure with intent to defraud, leaving ))ropertj' must be stated 
 especially and it is wise to follow the words of the statute. 
 
 The same particularity is not however required as was required in an affi- 
 davit to hold to bail when no order of a .Judge was required nor as where \wr- 
 
AIJSCONDINO DEHTORS. 
 
 265 
 
 1.^' 
 
 tllL' 
 
 lid 
 Ik'l.t 
 
 Itelv 
 
 L.f. 
 
 the 
 
 kturl 
 
 itti- 
 ■per- 
 
 wmiil lilirit.v is involved, Hank of Hamilton v. Bnine (2) (ISS7) l'_' 1'. U. 4M), 
 and drtVct« in the iiflidiivitH inav !»• Hupplifd liv iitMdavits tiled on tpchalf of the 
 dfftMidant, Hait v. Kutlan (1H7'4)2:JC.I'. OIH-.H. v. Stewart, ( IS8(>) H P. K. 2!»7. 
 
 In an action liy the ('rown on a rceoj^ni/anci', an alHdavit hv tliu Crown 
 Attorni'v i« with llie aHi<iavit.s of the two other |iersoni' snllicient. K. v. 
 Stewart' ( I HS(I) H I*. K. •_'!I7. 
 
 Where the plaintill' is a corpoiation the i reditor's ulhdavit may Ix^ niaile hy 
 any olHcer, seivant or ayc^nt ; ('. H. .")!!). 
 
 The ]>orHons fictrrolniraling the departure with 
 helieve, ele. "has reason to 
 
 ■11 (1H4,S) I Chaml). H. .SI. 
 ■' ' shouhl state the grounds 
 %t-i) •_>(). S. .•{73. 
 
 "■ed the proeeediuf^s, the 
 ■ the delitor to put in 
 
 Corroborating Affldavlts. 
 
 intent uuist swear thi'V have iiood reason 
 helieve" would lie insullieient ; Nleyers v. (Jai ' 
 Where they reside far from tiie delitor'siesiden. 
 of their helief ; Bank of Ujiper Canada v. Sj)artc 
 
 Form of Order. When a writ of attaehment ■ 
 Statute reijuired that it should contain a sumin 
 
 special hail ; U.S.O. (1MH7) c. (id, s. 4, and an ordniarx' a))|)earance was a use- 
 less pi ceding, Otl'iiy v. Oti'ay (lH(i7) -'(i IT.C.H. :!(i3 :'!■!. v. Stewart ( !«><'») « 
 
 1'. H. ■i1>7. The form of order j^ \en liy Holmested & Langton, j). II ll.S contains 
 also a summons, hut tlu'rc would appear to he no authority for the .Judge to 
 do more than order the attaclnuent anil appoint the time for])utting in special 
 had. The defendant is summoned hy the ordinary writ which luecedes the 
 Older aii<l it mav lie that an order for service out of the jurisdiction should ho 
 issued ; Krv V. .Moore (ISSII) •_>:?(»>. 15. 1). ;«».■) ; Wihling v. Mean (1H!»1) 1 ^).\i. 
 1(1(1; .Fay V. Hudd (ISitS) I g. li. Pi. If the order is refused hy one .ludgo 
 applications max he made to other .lurlges in succession either uiion the same 
 or further maleiial ; Hank of Hamilton v. Haine (ISS7) I'i I'.H. 43!). 
 
 Setting aside Order. A Local Master cannot make tlie order; Hank of 
 Hamilton v. Haine (ISS.H) ]-l P. H. 418. A .Fudge of a ( 'ountv C<airt wouhl have no 
 ])ower in a High Court action to.set aside his (iwn order; l)isherv. Dislier (IKHS) 
 I'i P. H. ."ilK. It would seem that an order for attachment is not of the class of er. 
 jxirh: oi-rlcrs whi(th may he set aside underC. R. .'{."jS. See .Tury v. .lury ( lS!(."i) 1(5 
 P. R. 37."). The (H'der may however he .set aside on an a])plication in (,'haiiil)er8 
 and (Ui such a])|)lication the nuestioiis of residence, de|)arture, intent and deht 
 mav he tried ; Howland v. Rowe ( l.Sti.")) i.") U.C. R. 4(i7 ; .lacksoii v. Randall 
 (1H74) (i I'.U. Km; 24 C. P. 87 ; Kylev. Harnes(lS83) Id P.P. iO. See this juris- 
 diction (hmhted ; Disher v. Disher (1888) Pi P.R. .")18. On setting aside the 
 order the einirt mav direct that no action he hrought for anything (Tone ihere- 
 uiKler; Hart v. Riittan (1874) 23 C.P. (U.S. 
 
 Cotinty Courts. Vov the jurisdiction in C(nnity Courts see R. S. 0. c. .'50, 
 ante ]). 2.34. 
 
 Effect of Order. The order does not hind the goods of the dehtor until 
 actual .seizure ; Kingsmill v. ^Varl•eller (18.")2) 13 U.C. H. 18; Potter v. Carroll 
 (18(}0) CJ". 442 ; nor his lands, Rohinson v. Bergin (1883) 10 P.R. 127 ; Doe 
 d. Crew V. Clarke (1841) R. & .1. Dig. ,5. 
 
 Attachment of Shares. If the (lehtor is possessed of shares in any associa- 
 tion or eorporation a copy of the order should he .served upon the associiition 
 or corporation with a notice that all the shares which the dehtor has iit the 
 stock thereof are attached. See J{.S.(). e. 77, s. 11. 
 
 Inventory. The inventory should descrihe the property attached so th.it it 
 may he identified with reasonahlo certainty ; Drake on attachment, s. 208. 
 No appraisement need l)e made except of peri.shahle pro])erty. The inventory 
 must he signed hy the Sheritt' and two freehohlers and returned to the Court 
 with tlie order. 
 
 Perishable Property. When ])erishahle property is attached it must he ap- 
 |)raised and valued on oath hy two competent jjersons. No sale can he made 
 thereof unless within four days after notice of the seizure the plaintill' give a 
 )>oii(l executed hy two freeholders for flouhle the appraised \alue. The .sale 
 must he hy auction. 
 
 Superseding DivlBlon Court Attachment. Prohihition would, if necessiiry, 
 he granted to restrain a ('lerk of a Division t'ourt from paying out moneys paid 
 into court on garnishee proceedings against the dehtor ; Re Moore v. Wallace 
 (1889) 13 P.R. 201. 
 
 The Bailill' W(mld have no lien upon the goods attached and demanded hv 
 the Sheritt' for his fees ; Sneary v. Ahdy (187(5) 1 Kx. D. 299 ; Re Ross (18)K5) 
 
 ,1 
 
C3' 
 
 t:. 
 
 mti:'. 
 
 ,«tta»4 
 
 266 ABSCONDING DEBTORS. 
 
 3 P.R, 394 ; and the right (if any) of tho Division Court plaintiff' to priority 
 for tile costs of his attaolnnent :'U(1 the Bailift's fees thereuniler nuist rest either 
 on e(|nital)le principles or on s. 10(3). The concluding words of s. 7 would 
 seem to limit his rights to a ratalile dividend only, even upon the costs, l)ut in 
 Darling v. Smith (1884) 10 P.R. 360, thej' were allowed as a first charge. 
 
 Sale of Chattels. Tlio costs of an <jrder for sale of tlic goods will he allowed 
 as a first charge ; Darling v. Smith (1884) 10 P.R. 3(50. 
 
 Costs of First Order. Only the costs of obtaining and executing the first 
 order for attaciiment have j^'iority over other claims and costs ; Hughes v. 
 Field (1881) 9 P.R. 127 : Darling v. Smith (1884) 10 P.R. 3()0. 
 
 Attachment of Debts. Xotice in irritimj must he given by the Sheriff to 
 delitors of tlio defendant in order to bind the debts in their hands. If notice 
 is not given the defendant maj' collect the same b^' action in his own name 
 notwithstanding the order for attachment ; Slattery v. Turney ( IS-'iO) 7 U.C.R. 
 578. An ass-gnnient of tiie debt before tho order for attachment wimld take 
 priority over the attaciiment ; Clarke v. Proudfoot (ISo'i) 9 U.C.R. 290. 
 Hirscii v. Coatcs (180(5) IS C.B. 7")7 ; Ferguson v. Carman (18(5(5) 2fi U.C.R. 2(5 ; 
 Macaulay v .Rumball (1S()0) 19 C.P. 284 ; Davis v. Freethy (1890) 24 (,). R. D. 
 519 ; Bcatv v. Hackctt (1892) 14 P.R. 395. 
 
 An order authorizing tlie Sheriff to sue may be obtained ex parte ; Cleaver v. 
 Fraser (1857) 3 U.C.L.J. 107. 
 
 Where a third party has goods of the debtor in his possession an order may 
 be made for their delivery to the Sheriff; Bunton v. Williams ( 1,S94) 1(5 P. R. 43. 
 
 Sale of Debts. The ])rovisioii for the sale of del)ts was first introduced in 
 188!t. Under an execution a Slicrit*' has no power to sell del)ts. 
 
 Distribution of proceeds. In Macfie v. Peanson (1885)8 O.R. 745 it washclil 
 that plaintiffs, on certificates under the (^"reditors Relief Act, could not share 
 in the nioiicv realized l)y .n Sheriff' under The Absconding Debtors Act, and 
 tliat it was necessary foi' them to obtain judgment aii<l execution in the ordinaiy 
 way. Ill the revision of tlic Statutes in 1887 the rights of such creditors was 
 provided for and it would seem that tlie jirocccds must now lie distributed 
 ratably amongall creditors who have claims in tiie Sheriff's iiands cithci' under 
 executions or under the Creditoi's Relief Act excej)t that j)ersons in tlie eiu- 
 phiyment of the debtor are entitled to priority for tiie wages or .salary due 
 tlieni not exceeding three montlis ; R.S.O. c. i'tti. Division Court judgment 
 creditors sliould servo a meinoranduni upon the Slicriff under s. 14 of The 
 C^editoi's Relief Act, R.S.O. c. 78. Proceedings under tiie Creditois' Relief 
 Act are not conimeiK^ed within s. IS until tlic affidavit is filed or served. The 
 nere swearing of an affidavit within (5 months liy a creditor will not be a suffi 
 CK'iit commeiu'ement of ))ro(eediiigs to entitle him to shaie in the distribution : 
 Bank of Hamilton v. Aitken (IS'.Kl) 20 A.R. «l(i. 
 
 Contesting Claims. The estate of the absconding debtor being available for 
 all execution creditors the jtroccedings to realize and ilistribute arc analogous 
 to administration jiidceedings and one creditor should l)e allowed to (luestion 
 the amount claimed by anothc ; Wills v. Carroll ( 18S.S) 10 P. R. 142. The 
 only summary method of contesting the claim of another creditor is under 
 The Creditors Relief Act, R.S.O. c, 78, ss. 10 c/ nn/. A judgment cicditor 
 whose proceedings were commenced too late toentitle him to share in the <lis- 
 tribulion may be a " creditor i ileivsted " in contesting the claims of a cre<litni- 
 entitled to sliaie therein; Hank of llamikoii v. .\itkcn (1803)20 .'\.R. (il(i. 
 The blaster in Chambers would have no power to set asi<le a judgment against 
 an absconding debtor on the a))))lication of another creditor but the Divisional 
 Court could do .so ; Wills v. Carroll ( 1883) 10 P. H. 142. 
 
267 
 
 CHAPTER 80. 
 
 An Act respecting Arrest and Imprisonment for Debt. 
 
 As amended by 62 Vict. c. 11. 
 
 AkUEST, when may be had, 88. 1-7. [ 
 
 Writs of Ga Sa. , a. 8. 
 
 Orders for payment of money, 
 s. 9. 
 
 Per.son having carriage of judg- 
 ment to be deemed I'LAINTIPF, 
 
 a. 10. 
 Denay before committal to gaol, 
 
 88. 11, 12. 
 
 Custody of persons arrested, s. 13. 
 Gaol limits, 8. 14. 
 
 Security from debtors in civil 
 
 CU.STODY, 88. 15-25. 
 
 Examination of debtor, b8. 26, 27. 
 Execution again.st goods and 
 
 lands, s. 28. 
 Discharge from custody, s.»29. 
 Provision in i;ahe of separation of 
 
 United Counties, ss. 30, 31. 
 Liability of Sheriff for escape, 
 
 8. 32. 
 Debtors in criminal custody, s. 33. 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 ARREST, 
 
 I . In case a pai-ty or plaintiff being a creditor of, or Defendant 
 having a cause of action against a person liable to arrest, by ^'^7 \>^ ''"Id 
 affidavit of himself or some other person shews to the satisfac- davitofcertaiii 
 tion of a Judge of tli3 High Court, or to the Judge ^acts and order 
 of a County Cou!-t, that such party or plaintiff has cause ° °'^^ ^^' 
 of action against such per.r.on to the amount of SlOO or upwards 
 or that he has sustained damage to that amount, and also 
 b ■ affidavit shews such facts and circumstances as satisfy the 
 Juuge, that thei'e is good and probable cause for believing 
 that such person, unless he be forthwith apprehended, is about 
 to quit Ontario with intent to defraud his creditors generally 
 or the said party or plaintiff in particular, the Judge may 
 order that the person against whom the application is 
 made, shall be arrested and held to bail for such sum as the 
 Judge thinks fit, and the Judge or the acting Judge of the 
 County Court, may grant an order for arrest where process is 
 intended to be sued out of or an action has been commenced 
 in the High Court, as well as in his own Court. R. S. O. 1X87. 
 c. 67, s. 1. Rules 1888, No. 1045. 
 
 *i. A party or plaintiff formerly entitled to obtain the writ Application of 
 of arrest called ne exeat, is now to proceed under section 1 of statute, 
 this Act. R. S. 0. 1887, c. 67. s. 3. 
 
 If 
 
268 
 
 Sec. 8. 
 
 ARREST AND IMPRISONMENT FOR DEBT. Chap. 80. 
 
 m 
 
 
 r 
 
 t 
 
 Arrest re- 3. No Order to arrest and hold to bail shall be made 
 
 .^o'tT^'^t? ^^^ ^ cause of action less than SlOO, but such order may be 
 "?100. issued when the cause of action equals or exceeds that sum, 
 
 R. S. 0. 1887, c. 67. s. 4. 
 
 rriviiegf.! 4. No person shall be subject to aii'est who, by reason of 
 
 be'^^v'i'rested *° *"y Privilege, usage or otherwise, is by law exempt therefrom. 
 R. S. 0. 1887, c. 67, s. 5. 
 
 Arrest for non 
 payment of 
 money, costs, 
 etc., .abo- 
 lished. 
 
 5. Process of contempt for non-payment of any sum of 
 money, or for non-payment of any costs, charges or expenses, 
 payable by a judj^ment or order of the High Court or of 
 a Judge thereof, or by a judgment or order of a County 
 Court or a Judge thereof, is abolished ; and no person shall 
 be liable to arrest for non-payment of costs. R. S. O. 1887, 
 c. 67, s. fl. 
 
 No married i\. No married woman shall be liable to arrest either on 
 
 wom.an to be ^Q^Jy^. or final process. R. S. 0. 1887, c. 67, s. 7. 
 
 .arrested. ^ > • > 
 
 Arrest on 
 claim or 
 judgment for 
 a i)enalty. 
 
 T. No person shall be arrested or imprisoned on a claim or 
 on a judgment recovered again.sthim as a debtor for a penalty 
 or sum of money in the nature of a penalty or forfeiture,, 
 whether the claim or judgment be in the name of such person; 
 alone, or in the forni of proceeding known as qui tarn, etc. 
 (notwithstanding anything to the contrary in any statute 
 providing for the recovery of such penalties or sums by action), 
 except in cases and under circumstances where, on claims or 
 judgments for ordinary debts, parties can be arrested or 
 imprisoned. R. S. 0. 1887, c. 67, s. 8. 
 
 Where 
 defendant 
 held to 
 special bail 
 ca, sa, may 
 issue. 
 
 When to ob- 
 tain ca. sa. 
 affidavits 
 necessary and 
 the contents 
 thereof. 
 
 WRITS OF CAPIAS AD SATISFACIENDUM. 
 
 8. Where the defendant has been held to special bail upon 
 a Judge's order made under this Act, it shall not be necessary 
 to obtain another order before suing out a writ of capian (id 
 satisfdcienchtm or to file any further affidavit than that upon 
 which the order was obtained in the first instance ; but where 
 the defendant has not been so held to special bail, if tiie plaintiflT 
 in the action, by the affidavit of himself or some other person 
 shews to the satisfaction of a Judge of the High Court, or 
 where the case is in a Coimty Court, to the Judge or 
 acting Judge of such Court, that he has recovered judg- 
 ment against the defendant for the sum of $100 or upwards, 
 exclusive of costs, and also by affidavit shews sucli facts, 
 and circumstances as satisfy the Judge that there is good 
 and probable cause for believing either that the defendant, 
 unless he be forthwith apprehended, is about to (juit Ontario, 
 with intent to defraud his creditors generally or the plaintift" 
 in pai'ticular, or that the defendant has parted with his pro- 
 perty or made some secret or fraudulent conveyance thereof in 
 order to prevent its being taken in execution, the Judge may 
 
iDhap. 80. ARREST AND IMPRISONMENT FOR DEBT. SeC. 8. 
 
 269 
 
 ortler that a writ of capias ad satisfaciendutn be issued. 
 R. S. O. 1887, c. 67, s. 9. 
 
 0. Every order of the High Court, and of a County O'^'^eM^^^^^^^ ^^ 
 Court, directing payment of money or of costs, charges or money "Tbe 
 expenses, shall, so far as it relates to such money, costs, deemed jud^- 
 charges, or expenses, be deemed a judgment, and the person 
 to receive payment a creditor, and the person to make pay- 
 ment a debtor, within the meaning of this Act ; and tho said 
 persons shall respectively have the same remedies, and the 
 Courts and Judges and the officers of justice shall in such 
 cases have the same powers and duties, as in corresponding 
 cases under this Act. R. S. O. 1887, c. 07, s. 10. 
 
 10. In case a judgment or order of the High Court directs Person having 
 the payment of money into Court, or to the credit of any j^ud^Mntetc.*! 
 cause, or otherwise than to any person, the person having the to be deemed 
 carriage of the judgment or order, so far as relates to the pay- * plamtin- 
 ment, shall be deemed the person to receive payment or the 
 plaintiff (as the case may be) within the meaning of this Act. 
 R. S. O. 1887, c. G7, s. 11. 
 
 DELAY BEFORE COMMITTAL TO GAOL. 
 
 1 1 . The Act of the Imperial Parliament, passed in the ^ ^^°- il- ^ 
 32nd year of the Reign of His late Majesty King George the not to be in 
 Second, chaptered 28, and intituled "An Act for Relief of lo'ce in 
 " Debtors with respect to the Imprisonment of their Persons " *""• 
 "and to oblige Debtors who .shall continue in execution in 
 " Prison beyond a certain length of time, and for sums not ex- 
 " ceeding what are mentioned in the Act, to make discovery of 
 " and deliver upon oath their estates for their creditors' benefit," 
 is not, nor is any part thereof, in foi-ce in this Province. 55 V. 
 c. 15, 8. 1. 
 
 i)r 
 lor 
 
 Is- 
 
 1 'i. The sheriff at the request of a person airested under 
 civil process shall grant to such person a delay of twenty-four 
 hours after his arrest before committing him to gaol, and shall 
 take .such person for the said twenty-four hours to some safe 
 and convenient house in his shrievalty ; provided such person 
 prepay.^ to the sheriff a sum of money sufficient to cover the 
 sheriff's reasonable fees and expenses incident to the delay. 
 55 V. c. 15, s. 2. 
 
 Sheriff to 
 allow debtor 
 twenty-four 
 hours delay 
 before com- 
 mitting him 
 to gaol. 
 
 CUSTODY OF PERSONS ARRE.STED. 
 
 Iin 
 
 1 3. A person arrested and connnitted to gaol in any Person arrest- 
 other county than that in which he resided or carried on comity *iiiay*' 
 business at the time, .shall be entitled to be transferred bo tninHferred 
 to the gaol of his own county, on prepaying the expense ingVlie"<Mst?^ 
 of his removal ; and the sheriff in whose county he was arrested 
 
270 
 
 Sec. 17. ARREST AND I.MPUISONMENT FOR DEBT. Chap. 80. 
 
 may, if he is satisfied of the facts, transfer him accordingly; 
 but if the sheriff" decUne.s to act without an order of the Court 
 or a Judge, such an order .shall be made on the application of 
 
 the prisonei', and notice to the opposite party. 
 c. 67, s. 12. 
 
 GAOL LIMITS. 
 
 R. S. 0. 1887, 
 
 Oaol limits. 
 
 1 4. The limits of every county for judicial purposes shall 
 be the limits of the gaol of the county. R S. 0. 1887, c. 67, 
 s. 13. 
 
 c*:^; 
 
 ^:l 
 
 
 r 
 
 
 o-' 
 
 SECURITY FROM DEBTORS IN CIVIL CUSTODY. 
 
 Sheriff may ' '*■ The sheriff* of a county may take from a debtor con- 
 
 take security fined in the gaol thereof, in execution or upon mesne process, a 
 in^custody!'^* bond with not less than two nor more than f our suflScient sureties, 
 to be jointly and severally bound in a penalty of double the 
 amount for which the debtor is so confined, conditioned, that 
 the debtor will observe and obey all notices, or orders 
 of Court touching or concerning the debtor, or his appear- 
 ing to be examined viva voce, or his returning and being 
 remanded into close custody, and that upon reasonable notice 
 to them or any of them, requiring them so to do, they will 
 produce the debtor to the sheriff, and also that the debtor 
 will within thirty days, cause the bond, or the bond that 
 may be substituted for the same, according to the provisions 
 hei'einafter contai.ied, to be allowed by the Judge of the County 
 Court of the County wherein the debtor is confined, and the 
 allowance to be endorsed thereon by the Judge : and for 
 this purpose the sheriff shall, upon reasonable notice given 
 by the debtor, cause such first mentioned bond to be produced 
 before the Judge. R. S. 0. 1887. c. 67, s. 14. 
 
 Surety to 
 make affi- 
 davit, etc. 
 
 1 6. The sheriff may also require each surety, where there 
 are only two, to make oath in writing, to be annexed to the 
 bond, that he is a freeholder or householder in some part of 
 Ontario (stating where), and is worth the sum for which the 
 debtor is in custody (naming it) and $200 more, over and 
 above what will pay all his debts ; or where there are more 
 than two sureties, then he may require each surety to make 
 oath as aforesaid, that he is a freeholder or householder as 
 aforesaid, and is worth one-half the sum for which the debtor 
 is in custody (naming it), and $200 more, over and above what 
 will pay all hi^ debts. R. S. O. 1887, c. 67, s. 15. 
 
 On receipt of ^ Tl ■ Upon receipt of the bond, accompanied by an affidavit 
 bond, Sheriff of a subscribing witness of the due execution thereof, and by 
 debtor t*ogo at the sureties' affidavits of sufficiency, if required by the sheriff, 
 large. the sheriff may permit and allow the debtor to go out of close 
 
 custody in gaol ; and so long as the debtor in all respects 
 observes the conditions of the bond, the sheriff shall not be 
 
Chap. 80. ARREST AND IMPRISONMENT FOR DKBT. Sec. 17. 
 
 271 
 
 there 
 o the 
 urtof 
 
 the 
 
 and 
 Imore 
 
 lake 
 as 
 jbtor 
 
 ?hat 
 
 llavit 
 , by 
 leritt, 
 Iclose 
 lects 
 It be 
 
 liable to the party at whoso suit the debtor is confined in any 
 action for the escape of tlie debtt)r from fjaol. R. S. O. 1H87, 
 c. 67, s. IC. 
 
 1 8. The debtor may apply for the allowance of the bond Application 
 upon four clear days' notice in writing to the plaintitf or his o'^bond to b« 
 solicitor, who at the time of the application may object to the made on 
 sufficiency of the sureties; i\nd if the Judge refuses allowance of "" '°"' * "' 
 the bond, then the debtor may cause another bond, made to the 
 sheriff in the same terms and undt-r the same conditions, to 
 be e.\ecut(Hl without further application to the sheriff, and may 
 apply in like manner and upon like notice for tlie allowance 
 thereof; and the bond, if a11owe<i and indorsed as aforesaid, 
 shall be substituted for and have tlie like effect in all respects, 
 as the bond so first given to tlie sheriff as aforesaid would have 
 had upcm the allowance thereof, and the like remedies shall be 
 had thereon, and the first given bond shall. thereupon become 
 void. R. S. O. 1887, c. 67, s. 17. 
 
 lU. Upon the allowance being so indor.sed, the sheriff' shall When bond 
 be discharged from all I'esponsibility respecting the debtor, gu"^ff^Jig. 
 unless the debtor is again committed to the close custody of charged from 
 the sheriff in due form of law. R. S. O. 1887, c. 67, s. 18. responmbility. 
 
 /{O. Persons who give bail under a writ of capias ad Conditions of 
 satisfaciendiiTn shall not be bound to x-emain within the gaol bail-bond 
 
 »/ o unQpr writ ot 
 
 limits, but may depart therefrom at their discretion; and when ca. m. 
 a person desires to give bail under such a writ, the condition 
 of the l)ond to the .sheriff shall provide that the person arrested 
 shall observe and obey all notices, orders and rules of the Court 
 concerning the debttir or person ordered to pay, or his appearing 
 to be examined 'Hva voce or otherwise,or his returning and being 
 remanded into close custody ; and the party or his bail shall not 
 l)e entitled to claim longer time for so observing or obeying 
 than he would have been entitled to if the party had been on 
 the limits according to the practice before the 4th day of May, 
 18.59, but the Court may grant further time if of opinion that 
 the same may be done without substantial injuxy to the 
 interests of tlie party to receive the money. R. S. O. 1887, 
 c. 67, s. 19. 
 
 Jil. In lieu of giving bail to a sheriff, a person arrested Depositin 
 either on execution or mesne process, or any person on ''*>" "' ^ai' on 
 his behalf may deposit with the sheriff' th(! amount for civU process, 
 which he is arrested, and where the person is held 
 under an order for arrest the further sum of S40, and 
 the said money .shall staml as a security in place of and 
 for the purposes of the bond provided for by sections 15 and 
 '2,0 of this Act, or of the security provided for by the Rules of 
 Court (as the case may be), and the said money shall for the 
 purpo.ses aforesaid be subject to the order of a Judge of the 
 Court from which the process issued, n ) the cfise may re(]nire, 
 but such deposit shall be rejiayable to the |>aity depositing 
 
 
mw f. 
 
 272 Sec. 26. akREst AinD imprisonment for debt. Chap. 80. 
 
 the same upon tlm shorilf being furnished with a certificate of 
 the Judge or officer who allows the same, that the bond pro- 
 vided for by sections 15 or 20 or the bond or other security 
 provided for by the Rules of Court (as the case may bo) has 
 been perfected and allowed. 55 V. c. 15. s. 3 ; aQ V. c. 5, s. 13. 
 62 V. c. 11, «. 7. 
 
 If the Bureties 3?J. In case the sherift has good reason to apprehend that 
 ^'^°">^J"*V*' any surety has after entering into the bond, become insufficient 
 may re-take to pay the amount sworn to, the sheriti" may again arrest the 
 the debtor. debtor, and detain him in close custody. 11. S. O. 1887, c. 67, 
 s. 20. 
 
 Tlu' sureties 
 tn.ay plead 
 Bucn arrest. 
 
 r 
 
 Bond may be 
 assigned. 
 
 Sureties may 
 Burrsnder deb' 
 tor. 
 
 Debtor on 
 bail li.ilile to 
 be e.\aunned. 
 
 Rev. Stat. 
 c. 81. 
 
 'H\. Tlic sureties of the debtor may set uj) tlie ari'est and 
 detention as a defence to any action brought against them 
 upon the bond entered into by them, and the defence if sus- 
 tained in proof sh^U wholly discharge them ; and the debtor 
 may again be allowed to go at large, on giving to the sheriff a 
 new bond with sureties as aforesaid. R. S. O. 1887,c. 67, s. 21. 
 
 ?54. Upon breach of the condition of any such bond, the party 
 at whose suit the debtor is confined may require the sheriff to 
 assign the same to him, and the assignment shall be made in 
 writing, under the seal of the sheriff and attested by at least 
 one witness, and the assignee of the sheriff or the executors 
 or administrators of the assignee m&y maintain an action in 
 his or their own names upon the bond, which action the sherifi' 
 shall have no power to release ; but upon executing an assign- 
 ment as aforesaid; the sheriff shall be thencefoi'th discharged 
 from all liability on account of the debtor or his safe custody 
 R. S. 0. 1887. c. 67, s. 22. 
 
 ?J5. The sureties of any debtor may sun-ender him into 
 ' the custody of the sheriff at the gaol, and the sheriff, his 
 deputy or gaoler shall there receive the debtor into custody, 
 and the sureties may set up the surrender or offer to sur- 
 render and the i-efusal of the sheriff, his depuvy or gaoler to 
 receive the debtor into custody at the gaol, as a defence to any 
 action brought on the bond for a breach of the condition hap- 
 pening after the surrender or tender and refusal, and the 
 defence if sustained in proof, shall discharge them ; but the 
 debtor inay again be allowed to go at large, on giving to the 
 .sheriff a new bond, with sureties as aforesaid. R. S. O. 1887, 
 c. 67 .s. 23. 
 
 *Zi\. The party at whose suit any debtor has been confined 
 may, at any time while the debtor is at large upon bail, apply 
 to the Court or Judge foi- an ordei' for the examination of the 
 debtor, in the manner provided in The Act respectim) the Relief' 
 of Indujent Debtors, and in case the debtor neglects or omits 
 to submit hiuKself to be examined pursuant to the order, or 
 refuses to make full answer in respect to the matters touch 
 lug which he is examined, to the satisfaction of the Court 
 
80. 
 
 Cliap. SO. ARREST AND IMPRISONMENT FOR DEBT. Sec. 26. 
 
 2T6 
 
 or Judge, the Court or a Judge may order the debtor Or be le-com- 
 to be committed to close custody, and the sheriff, on due ""'■'■'''^• 
 notice of the order, shall forthwith take tlie debtor and 
 commit him to close custody until he obtains an order of the 
 Court or a Judge for again allowing him to go out of close 
 custody, on giving the necessary bond as afoi'esaid, or until he 
 is otherwise discharged by due course of law. R. S. O. 1887, 
 c. 67, s. 24. 
 
 m. A new order may be granted on the debtor shew- On answering 
 ing that he has submitted himself to be examined and made aKafnVuowed" 
 full answer as aforesaid, and has thereafter given to the plain- to go at large, 
 titf" or his solicitor ten days' notice of his intention to apply. 
 R. S. O. 1887. c. 67. s. 25. 
 
 '<iH. The party at whose suit a debtor has been confined Plaintiff may 
 in execution may, wherever the debtor has been admitted to a^ain'Ht'nro-"" 
 bail, sue out writs against his goods and lands, notwithstanding perty of debtor 
 that the debtor has been charged in execution ; and the writ °" ^'"'''* 
 shall not be stayed, but shall be proceeded with until executed, 
 although the debtor be re-committed to close custody. R. S. 0. 
 1887, c. 67, s. 26. 
 
 DISCHARGE FROM CUSTODY. 
 
 ini into 
 •iff, his 
 Custody, 
 sur- 
 loler to 
 to any 
 )n hap- 
 md the 
 fmt tilt; 
 to the 
 1887, 
 
 lonflncd 
 
 . appb' 
 of the 
 
 ' Iteiief 
 
 Dr omits 
 
 rder, or 
 
 touch - 
 
 Court 
 
 *i9. A person arrested under a writ of capias ad satisfacien- Discharge of 
 clum or under an order of attachment, though he is not confined n'ot'in close*" 
 to close custody but has given bail may apply for and obtain custody. 
 his discharge in the same manner and subject to the same 
 terms and conditions as nearly as may be as an execution 
 debtor who is confined to close custody. R. S. 0. 1887, c. 67, 
 s. 27. 
 
 SEPARATION OF UNITED COUNTIES. 
 
 30. A person arrested or held to bail before the sep- Proceedings 
 
 ,. a • • n • L J !• I 1 1 -u under bailable 
 
 aration oi a junior from a senior county, and liable to be processincases 
 imprisoned, shall be so imprisoned in the gaol of the county of dissolution 
 in which he was arrested ; and all proceedings in the action counties!" " 
 in which a person was so arrested or held to bail, and 
 all proceedings after judgment founded on the arrest or 
 holding to bail, shall be carried on as if the arrest or hold- 
 ing to bail had taken place in such county as a separate 
 county ; and in case the proceedings are to be had in the junior 
 county, all the records and papers relative to the case shall be 
 transmitted to the proper officer of the junior county. R. S. 0. 
 1887, c. 67. s. 28. 
 
 31. In case a debtor or other person is admitted to bail Gaol for debtor 
 in a union of counties, and the union is afterwards dissolved, CounUes^dU- 
 or one or more counties are separated therefrom, and in case solved. 
 
c-:2 
 
 274 Sec. 33. arrest and imprisonment for debt. Chap. 80. 
 
 such person after the dissolution of the union is surren- 
 dered or ordered to be committed to close custody, he shall 
 be siuTendered or committed to the sheriff of the county in 
 which he is arrested, and be imprisoned in the gaol thereof. 
 R.S.0. 1887,c.67,s. 29. 
 
 LIABILITY OF SHERIFF FOR ESCAPE. 
 
 Sheriff only to li'i. If a debtor in execution escapes out of 
 
 be liable for 
 damages sus- 
 tained. 
 
 legal 
 
 cus- 
 
 tody, the sheriff, bailiff, or other person having the custody of 
 the debtor, .shall be liable only to an action for damages 
 sustained by the person or persons at whose suit the debtor 
 was taken or imprisoned, and shall not be liable to any other 
 action in consequence of the escape. R. S. 0. 1887, c. 67, s. 30. 
 
 DEBTORS IN CRIMINAL CUSTODY. 
 
 This Act not HH. None of the foregoing provisions relative to the discharge 
 debtor "incus f^o™ custody or admission to bail shall extend or be applicable 
 tody on crim- to debtors who are at the same time in custody upon any 
 in-iJ charges, prij^iinal charge. R. S. 0. 1887, c. 67, s. 31. 
 
 
 ! 
 
ARREST AND IMPRISONMENT FOR DEBT. 
 
 1 
 
 i 
 
 275 
 
 NOTES. 
 
 Ca. re. An order for nrrost before judgnieiit is equivalent to the old Writ of 
 cajiinK ad reniioiiileudtm. 
 
 Cause Of Action tor $100. The facts from whieli a cause of ui-tioii appear.") 
 should l)e shown, e.g., where the action is on a uegotiahle instrument it 
 should l)e shown that it is overdue before action; Clarke v. Clarke (1842) 
 
 1 U.C.R. 39". ; Ro.ss V. Hin-d (1853) 1 P.R. 158 ; and still unpaid ; Pawson v. 
 Hall (185,3) 1 P.R. •2i)4 ; and it should appear reasonably therefrom either that 
 the notes were payable to the plaintiff or that he is the lawful holder thereof ; 
 Jones v. <iress (1860) '25 U.C.R. 594 ; where the action is on a money bond it 
 should show to whom the bond was made ; Case v. McVeigh (1840) R. & J. 
 Dig. 194, and if on another sealed instrument upon the nature thereof ; Clarke v. 
 Clarke (18.">7) 3 U. C. L. J. 149 ; when it is for work and labor, it should be 
 shown that it was done at defendants recpiest ; Hall v. Brush (1840) R. & J. 
 Dig. 194, and if ior goods that they were sold and dclix'ercd to the defendant or 
 on his request; McDomiell v. Kelly (1848) 4 U. C. R. ,394; Handley v. 
 Franchi (1806) L. R. 2 Kx. 34 ; Diamond v. Cartwright (1872) 22 C. P. 494 ; 
 if more than one claim is .sued upon, each shomd be properly stated ; 
 McKenzie v. Reid (1842) 1 U.C.R. 396; Barry v. Eccles (1846) 2 U.C.R. 
 38.3. In short, enough must bo .shown on the face of the affidavit to afford 
 ground for an indictment for perjury ; Handley v. Franchi (1866) L. R. 
 
 2 Ex. 34. For examj)les of sufficient affidavits as to debt see KUerby v. 
 Walton (1857) 2 P. R. 147 followed in Scott v. Mitchell (1881) 8 P.R. 518; 
 Melntyre v. Brown (1858) 4 U. C. L. J. 85 ; Ingiaham v. Cunningham (1830) 
 Diaper 109. 
 
 Oood and Probable Cause. The facts and circumstances justifying the infer- 
 ence that the defen<lant unless forthwith apprehended is about to quit Ontario 
 with intent to defraud must be set out ; Demill v. Eaaterbrook (1864) 10 
 U. C.L.J. 246. The .Judge must be satisfied that the defendant intends to 
 leave forthwith; Bowers v. Flower (1859) 3 P. R. 62. If the circumstances 
 warrant a reasonable man in the plaintiff's position drawing the necessary 
 inferences the ordei' will stand ; .Scott v. Mitchell (1881) 8 P. R. 518. Where 
 the plaintiff bases his belief on the information of others their names should be 
 given, seeC. R. 518; Gilbert v. Stiles (1889) 13 P. R. 121, but if other affi- 
 davits are filed stating facts which would justifj' the belief, the defect will be 
 cured ; Watson v. Charlton (1876) 40 U.C.R. 142. 
 
 Intent to Deftaud. Merely leaving for a temporary' purpose is insufficient ; 
 Shaw v. McKenzie (1881) 6 S.C.R. 181. If the debtor, a resident, is about to 
 withdraw permanently from the jurisdiction, that unexjilained by him is quite 
 sutHcicnt to warrant his arrest, the inference drawn and justly drawn being, 
 that in so departing, and withdrawing his person fi'om the jurisdiction, there 
 is intent to defi'aud. If he can on motion for his discharge show that lie had 
 no such intent, it is open for him to do so, but the intent wdl not bo rebutted 
 merely by the explanation that the dehtoi' is going away in order to better his 
 condition, or that his intention to depart is open and notorious ; Coffey' v. 
 Scane (1895)22 A.R. 269 ; 25 O.R. 22 ; Robertson v. Coulton (1881)9P.R. 16 ; 
 McVeain v. Ridler (1897) 17 P. R. 353, but see Tooth v. Frederick (1891) 14 
 P.R. 287; Scane v. Coffey (1892) 15 P. R. 112; Rogers v. Knowles (1891) 14 
 P. R. 290 n. which must now be treated as over-ruled, see 17 P. R. 353. 
 
 Where a defendant although he made an affidavit, made no reference to his 
 financial condition he was refused his discharge ; Vansickle v. Bovd (1892) 14 
 P. R. 469. 
 
 Foreigners. A foreigner who contracts a debt in a foreign countrj-, and 
 comes to Ontario for a temporary ])ui'pose is not liable to arrest on leav- 
 ing this province to return to his own country ; Frear v. Ferguson (1851) 
 2 C. L. Chamb. 144 ; Smith v. Smith (1883) 9 P.R. 511. Ex parte Gutierrez. 
 (1879) 11 Ch. I). 298 ; Rice v. Fletcher (1889) 13 P. R 4<) ; McPhaden v. Bacon 
 (1873) 9 U. C. L. J. N. S. 226 ; Elgie v. Butt (1899) 19 C. L. J. 69. But 
 where a foreigner fraudently absconds from his own country, and the creditor 
 follows him, and finds that he intends to leave Ontario, not to return to his 
 
 ■■-ss 
 
 m 
 
T 
 
 or-: 
 
 r 
 
 r" 
 
 
 is 
 
 • 276 AHREST AND IMPRISONMENT KOK DEHT. 
 
 own country, but to >{i) to Home otIuT (.'ountrv, tlic oiiUm' will Ixi niado for hiw 
 arrest ; Hrett v. Sniitli (isr..".) I 1'. K. Sdit ; Hiitler v. Rosentel.lt (I87!»l« I'. H. 
 I7."> ; .Mi'Ver f^iiMiel' Co. v. I-Ii.li (l.Si(l), anil if lie has hecorne a resident of 
 < (ntario, e\en though his intention is to return to the country where he has 
 his legal (loniii lie he will not he discharged ; Kond)erg v. Steenliock (18.14) I 
 I'. H. L'(MI ; Hlunieulluil v. Solomon (18o0) '2 i'. K. 51 ; Palmer v. Rogers (I8U0) 
 « U. C. L. J. 1H«. 
 
 Where a (I"fendant went to Chicago in ISOfi owing dehts eoTitraeted in 
 Ontario and rclmiicil in 1H77 foi- a tcmiKii'ary pnrnosc he was discharged from 
 ariest ; Clements v. Kirhy (1877) 7 1'. R. W'^, and this decision is said not to 
 he in(U)nsistent with the sul)se(|uent case of Kerstcrniari v. Mcl^ellan (188H) 10 
 P. R. Vl'l. Wheie the dcfcndaiil left Ontaiio in 1882 owing dehts and, having 
 in the nieantinie acijuircd ii resilience and domicile in Michigan, returned to 
 Ontario for a tcmpoiary jiurijose in IHS.'f, his intent to retui'n to Michigan whs 
 I onsidcred to he with intent to defraiul, see |)er Osier .1. A., Kiickson v. Brand 
 (1888) 14 A. R. ()I4, at p. (ioS. Where a defendant U'ft Ontario to hetter his 
 contiition taking no assets with him and returned u|iim a temporary visit to 
 attend his mother's funeral he was held to be liable to arrest ; McVeain v. 
 Riiller(18!l7) 17 P.R. X^X 
 
 Setting Aside Order. If the nmterial on which the order is granted is irreg- 
 ular or insullieient it may be appealed from as any other order of a. Judge may 
 be appealed from, but if regularly obtained, that is on materials technically 
 siitHcient, it cannot (save in verv rare and e.\cej>tional cases) be set aside on 
 the merits, per Osier. I. A., Krickson v. Brand (18S8) 14 A.R. 014 at p. ti4!». 
 On an application to set aside an order as distinguished from a nu>tion to dis- 
 charge the defendant from custody, no new material can be used ; Damer v. 
 Busby (1871) "> P.R. 3.')(i ; Oilbert'v. Stiles (188!)) 13 P.R. 121 ; Scane v. Coffey 
 (18!»2) ir> P.R.112. The order is not an er jxirln order within C.R. 3.')8, and a 
 Judge has no authority to set aside his own order, Jury v. Jury (1895) 1(5 P.R. 
 375; McNabb V. Oppcnheimer (1885) 11 P.R. 214, see also Gosaling v. Mc- 
 Bride(18<)7) 17 P.R. r>H5. 
 
 Ne Exeat. The writ of ne exeal prorixcin is a high prerogative writ origin- 
 ally applicable to purposes of state but afterwards extended to private trans- 
 actions. It was confined to cases of eipiitable bail ; Dick v. Swinton (1813)1 
 Ves. & B. 373; Jackson v. Petrie (1804) 10 Ves. 164; 7 P.R. 308; White- 
 house V. Partridge (1818) 3 Swanst 377 ; IS) R.R. 216. 
 
 It would not be granted tea plaintiff residing in a foreign country ; Smith v. 
 Nethersole (1831 ) 2 Russ. & M. 450, but was granted against a foreigner in 
 Kngland only for a temporary purpose ; Flack v. Holm (1820) 1 J. & W. 405; 21 
 R.R. 202 xed quaere. 
 
 The writ was formerly issued in actions of account ; Hannay v. McEntire 
 (1805) 11 Ves. 55 ; Flack v. Holm (1820) 1 J. & W. 405, 21 R.R'. 202 ; again.st 
 trustees, Taylor v Leiteh (1705) 1 Dick. 380 ; Howkins v. Howkins (1860) 1 
 Dr. & Sm. 75; against executors, Pannell v. Taylor (182.3) T. & R. 100; 
 against a husband for alinujny, Harn v. Harn (1858)4 U. C.L.J. 201 ; P-.ehard- 
 son V. Richardson (1880) 8 P.R. 274, against a person who had indujed the 
 jilaintiff by fi'aud to lend money on a mortgage of land to which he knew the 
 mortgagor had no title ; Hunter v. ^Mountjoy (1858) 6 Gr. 433. 
 
 Privilege ftrom Arrest. The following persons are privileged from arrest. 
 
 Members of Legislature, during and for 20 days before and 20 days 
 after each ses-sion ; R.S.O. c. 12, s. ,50. Members of Parliament during 
 and 40 days before and after each session ; R.S.C. c. 11, s. 3. Wadsworth 
 V. Boulton(18ol) 2C.L. Chamb. 76; Ooudy v. Duucombo (1847) 1 Ex.430, 
 and an order for arrest against a member is irregular although not intendecl 
 to be put in execution till the privilege expires ; Cassidy v. Stuart (1841) 2 M. 
 & G. 437. 
 
 Perhaps a consul, Clarke v. Cretico (1808) 1 Taunt 106, unless an ordinary 
 resident appointed and acting as a consul ; Viveash v. Becker (1814) 3 M. & S. 
 284, 15 R.R. 488. .Judges of the County Courts and Surrogate Courts are 
 privileged ; Adams v. Ackland (1851) 7 U.C.R. 211 ; Michic v. Allen (1851) 7 
 U.C.R. 482. 
 
 A coroner or deputy coroner while pre})aring to hold an inipicst, Ex parte 
 the deputy coroiffer of Middlesex (1861) 6 H. & N. 501. 
 
 
 ■fm n 
 
AHREST AND IMPRISONMENT FOR HKHT. 
 
 277 
 
 (lays 
 
 ring 
 
 \art\\ 
 
 1 430, 
 
 M. 
 
 Inary 
 I are 
 
 l)iirte 
 
 A iriiigisliiiti' attc'iidiiijj; louit in (li.sclmrge uf liiHduty ; Ck'ndunniiig v. IJinwne 
 (1S.)4);{ Ir. C.L.K. Ilf). 
 
 Clurks of County Courts, Deputy Clerks of tl'.c Ci'own and clerkn of Assize 
 whili; engaged in tlieir orticial duties or going to or returning from their otliees, 
 re Maekay v. (ioodson (IM(iS) -27 V.CM. MX 
 
 Persons attending as parties, attorneys, witnesses or l)ail on judicial jjiiieeed- 
 ings on, their way to, or retm'ning tlierefroni whetlier eoinix'Ued l>y process 
 oi' not ; Liglitfoot V. Cameron (1777) 2 W. HI. 1113; Xewland (or Newton) v. 
 Harland (1S8!)) 8 Seott 70, 3.Jur. 070 ; Chihlerston v. Barrett (1811) II East 
 4.S9 ; Walpolo v. Alexaiidor (1782) 3 Doug. 4"). 
 
 Tlie privilege extends to iKirsons attending a ))olice court as jH'oseoutors ; 
 Montague \. Harrison (18.")7)3 C.15.N..S. 292, and to j)arties and witnesses at- 
 tending liefore arl)itrators ; Spence v. .Stuart (1802) 3 East 8!», (i U.K. r)49. 
 
 A common informer is not privileged; E.\ parte Col)l)ett (1S.')7) 7 E. & U. 9.")i). 
 
 Barristers while on circuit, Meekini; v. Smith (1791) 1 H. HI. ()3(i ; Adams 
 V. Ackland (ISoO) 7 I'.C-'.R. 211, or attending to hear jiidgment, Xt'wiand (or 
 Newton) V. Harland (1839) 8 Scott 70, 3 Jur. 079 ; Imt a'liarristcr while re- 
 turning from ])etty sessions where he had heen engaged without a previoiis re- 
 tainer was held not to he privileged; Newton v. Constal)le (1841) 2(^. B. l."»7. 
 
 A solicitor on Ins way to and from attendance at Couit for a client who is a 
 party to a cause ; ^Villianis v. Wehh (1843) 2 Dowl N. S. 9(14 ; or attendance 
 l)efore a taxing ma.ster ; Re Hope (184.")) 9 •hiv. HMi. I5ut if he unreasonably 
 deviates from a direct way the jnivilege will ho lost ; Jones v. Rose (1847) U 
 Jur. 379 ; Walsh v. Wilson (18.J1) 1 Ir. Ch. R. (ilO. 
 
 A parliamentary agent winlst going to or returning from the House on a 
 matter there pending. Kx parte Watkins (1837) 1 Jur. 23(i ; Atty. (ien. v. 
 Skinner's Co. (1837) 1 Cooper 1. 
 
 A ch^rgvnian whilst officiating in a chapel is pi'ivileged ; (ioddard v. Hairis 
 (1831)7 Bing. 32(1. 
 
 A person accused of a criminal charge whose attendance in Court isie(|uired 
 is ))rivileged from arrest on civil process when leturning home' from (Amrt 
 while out on hail or remand ; (iil])in v. Cohen (18(19) L.R. 4 Ex. 131, hut not 
 while returning home after aecjuittal; (iood win v, Lordon (1834) 1 A, & E. 378; 
 Hare v. Hyde (18ril) 16 Q.B. 394 ; Jacobs v. Jacobs (1835) 3 Dowl. I'.C. «75. 
 
 An officer executing process ; Welby v. Beard (1820) Tay 3(14. 
 
 A grand juror whilst attending or going to ov returning from court ; Mittle- 
 Iwrger v, Clarke (1848) 5 O.S. 718. 
 
 The principle upon which the jirivilege rests is that a suitor who has obtained 
 a judgment in a civil action cannot use the jirocess of the court for tiie purpose 
 of withdrawing from another court a witness or other person without whoso 
 presence full justice cannot l)e done. Montague v. Harrison (I8.")7) 3C,B.X,S, 
 292, 299. 
 
 A slight deviation will not de])rive tlie paity of the i)rivilege ; Pitt v. 
 Coombs (1834) 5 B. & Ad. 1078 ; but it does not exist v.hile atten<lingto other 
 business; Strong v. Dickenson (1830) 1 M. & W, 488, or where after the 
 adjournment of a hearing to a subse<iuent dav, the person did not return hor'e 
 for want of means ; Si)eiicer v. Newton (1837) A. & E. (i.SO ; 1 X. & P. 823 ; 
 but will continue during an adjournment to anotlier period on the same day, 
 Bishton v. Nesbitt (1834) 1 M. & Rob. 347. A witness stopping on the way to 
 the hearing at a place wiiere jjapers he is rciiuired to produce have been kept 
 is ])rivileged even though while tiicre he is .sorting his papers to make the 
 selection; Rickett v. Gwiney (1819) 1 Chit. 082. 
 
 It is only process to enforce civil obligations that is subject to jnivilege, but 
 process for crimes or for acts in the nature of offences, e. g. contempt of court, 
 is not ; R. v. Douglas (1842) 3 Q. B. 825 ; lo Freston (1883) 1 1 (,). B. I). 545 ; ro 
 Mclntyre (185()) 2 P.R. 74. 
 
 Process for Contempt. A judgment or order by which a person is required 
 to do some act whether it be to execute or to ))rocurc the execution of a deed 
 or di.scharge of mortgage though it may involve tlie payment oi money to some 
 one other than the opposite party, is not a judgment or order for payment of 
 
w 
 
 5^ 
 
 § 
 
 J 
 
 
 278 
 
 AIUIEST AND IMPRISONMENT FOR DEHT. 
 
 iniiiu-v witliin till' act, and the Hiinic iimv Iw eiiforcMl hy attachment. Hcirv 
 V. I).."n(iviin (IS<»;<| •2\ A. H. 14 ; Halts v. Hates (18HI)) 14 1'. I). 17 ; I'litrhaill 
 V. I'litcliard (1SH!») !8(). H. \~'.i. An uttai I 'iicnt lies against a ifci-iver as nn 
 otlicer of the coiut f(ir (k'fault in (roniplianif with an orilur to pay into (,'ourt 
 niont-y fouml to l)f in his liaiids as loccivi'r. Kawkus v.tiiitlin (ISOS) IH l'.R.4M. 
 
 Married Women. An oiiUt for coinniitniL'nl of a nianii'd woman for n-fusing 
 to atli'iid and lii' oxaniini'il as a judgnient dclitor is not iiii'-iiit or final iiroceHN. 
 Metropolitan Loan and Savings Co. v. .Mara (ISS(I) S 1'. H. .'{">.">; Watson v. 
 O'ltario Supply Co. (lHiM() 14 1*. !■!.!((!. Such imprisonment is foi' contemj)t 
 Henderson V. Diekson (IStld) l!l U. C. R. .")lt"2. And wheie a married women 
 had l(een coMunitted for failing to attend upon a judgment sunnnons issuetl 
 from a l)i vision ("oml upon a personal judgment for a delit eonti'acted widle 
 she was a widow, tiiu Court refused to disciiarge her U])on a linliiii.i cof/mi. Ke 
 Teasdall v. Hrady (1S!)S) IS ]'. H. 104. 
 
 Penalty. Comparts H. S. ()., <•. 147, h. 24 where imprisoinnent is provitied for 
 default in |(ayinent of a penalty. 
 
 Ba: -> the LlmltB. Before 4th .May, IS.")!), persons giving bail of the kind 
 piv for in section 1">, were l)o\r.id l)y the condition of the hond to I'Miain 
 
 yfi ". gai>l limits, and if they de])artci| tlieiefrom even for a toni| 'rary 
 
 pv .he hail he, ,ime fixed witii iiahilily. The condition of the hoiio now 
 
 omits milt re(|uirement ; hut tiie authorities relating to such l)onds ni.. he 
 consulted as to the rights of tlie parties upon the liond now j)rovided for. Vt 
 common law thesherritl'might admit tohail.hut wasinider noohligation to do - 
 I'risoners in ('ase of refusal had to re.sort to the proceeding i/e homiiii' ri/ihiiioiiiln. 
 Hv -'i Hen. vi c. !(, sheritl's were directed to let prisoners arrested liy them, or 
 in tiieir eusto<ly o>il of jjrison upon reasoiuihle securities of sutlicient persons to 
 keep their days. The amount of the security was not define<l and as the eau.so 
 of action expressed in the writ was in those days nearly always fictitious the 
 Statute, l.SCar. 11 Stat. 2, c. "i. re(|uired tlie sheritl' to take security only in 
 ','40 uidess the true cause of action was expressed in the writ. 
 
 The Sheriff' ia therefore now ohligcd to adnut all persons arrested on memie. 
 process to hail if the sureties are sufficient. Calcutt v. Ruttan {18."i4) 13 U. 
 ('. R. 220. Tiie hail taken hy the sherifl is known as hail he/oir, and the hond 
 is conditioned to he void if special hail is put in, see C'. R. 1030, and Form 
 lit!), Holmsted it Langton ])p. 1174, 14")i). Special hail is known as hail ahore., 
 see C. R. 1036 ct -icq. If tlie defendant he not prepared to give either hail 
 lifloir or hail ahove luit desires his liherty, he may give hail under s. 15, which 
 is still known as " hail to the limits." The provisions of s. l."» apply to debtors 
 in custody on »(cs»(! as well as on final process ; Clegg v. McNab (18o3) 1 1*. 
 R. l.'iiO, land it is not necessary that tlie debtor sh(mhl he actually conveyed 
 to gaol l)efore the hail is taken, Smith v. Foster (18(51) 11 C. P. 1«1. 
 
 Care must he taken in tiie preparation of the bond to follow the wonls of 
 the Statute as to the condition tliereof as in the event of the bond not being 
 in accordance witli the act, the sheriff is liable, as for an escape, even though 
 tile plaintiff' may have taken an assignment, Kingan v. Hall (18(i4) 2;^ U.C.R. , 
 503 ; Hicks v. Godfrey (18Ho) 15 C. P. 262. 
 
 A breach of the bond would not be committed hy failure to attend upon an 
 examination unless an order retiuiring the debtor to attend lias l)een made or 
 its e(|uivalent, i. e. an appointment by a duly authorized examiner, issued ; 
 Hicks v. (Godfrey (1865) 15 C. P. 262. 
 
 Discharge from Custody. See C.R. 1047 ; Holmsted & Langton p. 1181. 
 
 Escape. Sec. 32 is substantially identical with Kiiglish Statute 5 & 6 Vict., 
 c. !)8, s. 31, for which ."lO^l V^ict. c. 55, s. 16 Imp. is now substituted. The 
 measure of damages in tlie value of the custody of tlie debtor at the time of 
 his escape ; Arden v. Ooodacre (1851) 11 C. H. 371 ; R. v. Sherill'of Leicester- 
 sliire (1850) !) C. IJ. 659 : Moore v. Moore (1858) 25 Heav. 8 ; Harkin v. Rabi- 
 <lori (1859) 1 Chy. Chamb. 133, and that value ia to be estimated by seeing 
 what the value of the effect of the pressure is likely to be ; Macrae v. Clarke 
 (1866) L. R. 1 C. P. 403, but the damages will be confined to the amount for 
 which bail is ordered to be taken. Taylor v, McEwan (1867) 27 U. C. R. 126. 
 

 279 
 
 2. PARENT AND CHILD. 
 
 CHAPTER 168. 
 
 All Act respecting Inftints. 
 
 Custody ok infants, ss. 1, 2. 
 Infant's real estate, ss. ;M0. 
 Guardians, ss. 11-] 0. 
 
 Appointment, ss. 11-15. 
 
 Direction by Court, s. l(i. 
 
 Removal, n. 17. 
 
 Authority, s. 19. 
 What Court or .Judge has .iuris- 
 diction under certain sec- 
 tion.s, 8. 18. 
 
 PowerofSuhrooate Courts iNMAT- 
 
 TERS of (iUARDIANSHIP, SS. 20, 
 
 21. 
 
 Compulsory attendance of wit- 
 nesses, B. 22. 
 
 Father's authority in respect of 
 religious faith of child, 
 
 8. 23. 
 
 IIU 
 
 I or 
 u.l; 
 
 HER MAJESTY, oy and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 CUSTODY OF INFANTS. 
 
 I.— (1) The High Court or Surrogate Court, or any Judge of Court may 
 either Court, may, upon the application of the mother of an to custody of 
 infant (who may so apply without next friend) make such ^"^^ '"'8''* "^ 
 order as the Court or Judge sees fit regarding the custody of fnfants." 
 the infant, and the right of access thereto of either parent, 
 having regard to the welfare of the infant, and to the conduct 
 of the parents, and to the wishes as well of the mother as of 
 the father, and may afterwards alter, vary or discharge the 
 order on the application of either parent, or, after the death of 
 either parent, of any guardian under this Act, and in every 
 case may make such order respecting the costs of the mother 
 and the liability of the father for the same, or otherwise as to 
 costs as the Court or Judge may think just. 
 
 (2) The Court or Judge may also make order for the Order as to 
 maintenance of the infant by payment by the father thereof, maiutenauce. 
 or by payment out of any estate to which the infant is 
 entitled, of such sum or sums of money from time to time as 
 according to the pecuniary circumstances of the father or the 
 value of the estate the Court or Judge thinks just and reason- 
 able. R. S. 0. 1887. c. 137, s. 1. 
 
T 
 I 
 
 280 
 
 Sec. 7. 
 
 INFANTS. 
 
 Chap. 168. 
 
 
 3:-:: Zp 
 
 Order "Otto li. No ortlei" directing that the mother .shall have the cus- 
 be m.. .e in ^yj„ gf qj, access to an infant shall be made by virtue of this 
 mother guilty Act, in favour of a mother against whom adultcy has been 
 of adultery, established by judgment in an action for criminal conversation 
 
 at the suit of her husband against any person. E. S. 0. 1887, 
 
 c. 137, s. 2. 
 
 INFANTS RKAL ESTATE. 
 
 A sale of the 3. — (1 ) Where an infant is seised or posses.sed of or entitled to 
 fnfants maybe ^^Y ^'^^^ estate in fee or for a term of years, or otherwise how- 
 authorized, soever, in Ontario, and the High Court is of opinion that a sale, 
 lease or other disposition of the .same, or of a part thereof, is 
 necessary or proper for the maintenance or education of the 
 infant, or that, by reason of any part of the property being ex- 
 posed to waste and dilapidation, or to depreciation from any 
 other cause, his interest requires or will be substantially pro- 
 moted by such disposition, the Court may order the sale, or the 
 letting for a term of years, or other disposition of such real 
 estate, or any part thereof, to be made under the direction of 
 the Court or one of its officers, or by the guardian of the 
 infant, or by a person appointed b}' the Court for the purpose, 
 in such manner and with such restrictions as to the Court may 
 seem expedient, and may order the infant to convey the estate 
 as the Court thinks proper. 
 
 No sale con- (2) But no sale, lease, or other disposition shall be made 
 trary to a against the provisions of a will or conveyance by which the 
 estate has been devised or granted to the infant or for his use. 
 
 devise, etc. 
 
 R. S. O. 1887, c. 137, s. 3. 
 
 % 
 
 i. 
 
 Ji 
 
 ii 
 
 n 
 
 The apniica 
 tion to be by 
 next friend or 
 guardian. 
 
 4. The application .shall be in the name of the infant by his 
 next friend, or by his guardian ; but shall not be made without 
 the consent of the infant if he is of the age of fourteen years 
 or upwards unless the Court otherwise directs or allows. 
 R. S. 0. 1887, c. 137, s. 4 ; 60 V. c. 3, s. 3. 
 
 When a sub- 
 
 5. 
 
 Where the Court deems it convenient that a conveyance 
 Btitute may be ghould be executed by some person in the place of an infant. 
 
 appointed 
 to convey. 
 
 the Court may direct some other person in the place of the 
 infant to convey the estate. R. S. 0. 1887, c. 137, s. 5. 
 
 Deeds exe- <». Every such conveyance, whether executed by the infant 
 
 cutedm behalf qi* some person appointed to execute the .same in his place, .shall 
 valid. be as effectual as if the infant had executed the same, and had 
 
 been of the age of twenty-one years at the time. R. S. 0. 1887, 
 
 c. 137, s. 6. 
 
 The Court to 
 direct the ap- 
 plication of 
 proceeds. 
 
 1. The moneys arising from such sale lease or other dis- 
 position .shall be laid out, applied and dispo.sed of in such manner 
 as the Court directs. R. S. 0. 1887, c. 137, s. 7. 
 
Chap. 168. 
 
 INFANTS. 
 
 Sec. 8. 
 
 281 
 
 8. On any sale or other dispo.sition .so made, the money Quality of 
 raised, or the surplus thereof, shall be of the same nature and surpluH 
 character as the estate sold or disposed of ; and the heirs, next ^""orreai"" 
 of kin, or other representatives of the infant, shall have the estate. 
 like interest in any surplus which may remain of the money 
 at the decease of the infant, as they would have had in the 
 estate sold or disposed of, if no sale or other disposition had 
 been made thereof. R. S. 0. 18s7, c. 137, s. 8. 
 
 0. If any real estate of an infant is subject to dower, and incasesof 
 the person entitled to dower consents in writing to accept in dower a com- 
 lieu of dower any gross sum which the Court thinks reasonable, be^made. 
 or the permanent investment of a reasonable .sum in such 
 manner that the interest thereof be made payable to the person 
 ■entitled to dower during her life, the Court or Judge may 
 direct the payment of such sum in gross, out of the purchase 
 money to the person entitled to dower, as may be deemed upon 
 the [principles applicable to life annuities a reasonable satis- 
 faction for such e.stnte ; or may direct the payment to the person 
 entitled to dower of an annual sum, or of the income or interest 
 to be derived from the purchase money, or any part thereof, as 
 may seem just, and for that purpose may make such order for 
 the investment or other disposition of the purchase i-ioney, or 
 any part thereof, as mav be necessary. R. S. 0. 1887, c. 137, 
 8. 9. 
 
 10. — (1) Where by a will or other instrument property is Order tor 
 given beneficially to any person for his life with a power of where^wute 
 devising or appointing the same by will in favour of his settled for life 
 children, or in favour of one or more of his children, the appointment"* 
 High Court may on the application, or with the con.sent, in favour of 
 of the said tenant for life, order that such portion of the f^e tenant 
 proceeds of the said property, as it may consider proper 
 shall be applied towards the maintenance or education of 
 any infant child in whose favour the said power might be 
 exercised, notwithstanding there is a gift over in the event of 
 there being no children to take under the said power, or not- 
 withstanding there is a right conferi'ed upon the said tenant 
 for life or upon some other person in the said event to make a 
 disposition of the snid property in favour of some person or 
 pLM'.sons other than the said children. 57 V. c. 21, s. 1. 
 
 (2) This .section shall extsnd to property coming within its Application of 
 terms where the will or other instrument under which it is *^°*'°"- 
 held has gone into operation or has been executed before the 
 passing hereof. 57 V. c. 21, s. 2. 
 
 APPOINTMENT OF GUARDIANS. 
 
 1 1. The Surrogate Court for the county within which an in- Right ti> 
 fant resides may appoint the father of the ini'ant to be gSardkns. 
 guardian ; or may with the consent of the father appoint 
 
282 
 
 Sec. 14 (1). 
 
 INFANTS. 
 
 Chap. 168. 
 
 .■«£t 
 
 c: : 
 
 a" 'J 
 
 Rev. Stat. c. 
 59. 
 
 When Judges 
 of Surrogate 
 Courts may 
 appoint guar- 
 dians. 
 
 Such guar- 
 dians to give 
 security By 
 bond. 
 
 Rev. Stat, 
 c. 220. 
 
 Condition of 
 bond. 
 
 
 Bond to 
 be recorded. 
 
 some other suitable person or persons ; but if the infant is of 
 the age of fourteen years or over, neither of such appointments 
 shall be made without the consent of the infant ; or, if the 
 infant has no father living or any legal guardian authorized 
 by law to take the care of his person and the charge of his 
 estate, the said Court may appoint a guardian or guardians of 
 the infant ; and letters of guardianship granted by a 
 Surrogate Court shall have force and effect in all parts of 
 Ontario ; and an official certificate of the grant may be obtained 
 as in the case of letters of administration ; and a return of every 
 appointment and removal of a guardian shall be made by 
 registrars respectively to the Surrogate Clerk in like manner 
 as is required by The Surrogate Courts Act in the case of grants 
 of probate or administration ; but this section shall not be con- 
 strued as depriving the High Court of jurisdiction in such 
 matters. R. S. O. 1887, c. 137, s. 10. 
 
 m. Upon the written application of the infant, or the 
 friend or friends of the infant, residing within the jurisdiction 
 of the Surrogate Court to which application is made, and after 
 proof of twenty days' public notice of the application, in 
 some newspaper published within the county or district of the 
 Surrogate Court to which the application is made, the Judge 
 of the Court may appoint some suitable and discreet person 
 or persons to be guardian or guardians of the infant. R. S. O. 
 1887, c. 137, s. 11 ; 55 V. c. 29, s. 1. 
 
 13. Subject to the provisions of The Act respecting the 
 Acceptance of Certain Incorporated Companies as Sureties, 
 the Judge shall take from every guardian appointed under 
 sections 11 and 12, a bond in the name of the infant, in 
 such penal sum and with such securities as the Judge 
 directs and approves, having regard to the circumstances 
 of the case, and such bond shall be conditioned that the 
 said guardian will faithfully perform the said trust, and 
 that he, or his executors or administrators, will, when the 
 said ward becomes of the full age of twenty-one years, 
 or whenever the said guardianship is determined, or sooner 
 if thereto required by the said Surrogate Court, render 
 to his ward, or to his executors or administrators, a true and 
 just account of all goods, moneys, interest, rents, profits or other 
 estate of the waid, which shall have come into the hands of 
 the guardian, and will thereupon without delay deliver and 
 pay over to the said ward, or to his executors or administrators, 
 the estate or the sum or balance of money which may be in 
 the hands of the said guardian belonging to the ward, 
 deducting therefi*om and retaining a reasonable sum for the 
 expenses and charges of the guardian, and the bond shall be 
 recorded by the registrar of the Court in the books of his 
 office. R. S. 0. 1887, c. 137, s. 12. 
 
 On death of 1 4. — (1) Ou the death of the father of an infant, the mother^ 
 father, mother jf surviving, shall be the guardian of the infant, either alone. 
 
Chap. 168. 
 
 INFANTS. 
 
 Sec. 14(1). 
 
 283 
 
 be 
 
 le. 
 
 when no guardian has been appointed by the father, or jointly to be gimrdian 
 with any guardian appointed by the father. ?v"withothers 
 
 (2) Where no guardian has been appointed by the father, or 
 if the guardian or guardians appointed by the father is or are 
 dead, or refuses or refuse to act, the High Court or Surrogate 
 Court, or any Judge of either Court, may from time to time 
 appoint a guardian or guai'dians to act jointly with the 
 mother, as such Court or Judge shall see fit. R. S. O. 1887, 
 c. 137, s. 13. 
 
 15. — (1) The mother of an infant may, by deed or will, Mother may 
 appoint any person or persons to be guai'dian or guardians of dian'kfcertain 
 the infant after the death of herself and the father of the infant cases. 
 (if the infant be then unmarried), and where guardians are 
 appointed by both parents they shall act jointly. 
 
 (2) The mother of an infant may, by deed or will, provi- 
 sionally nominate some fit person or persons to act as guardian 
 or guardians of the infant after her death jointlj' with the 
 father of the infant, and the Court or a Judge after her death, 
 if it be shewn to the satisfaction of the Court or a Judge that 
 the father is for any reason unfitted to be the sole guardian of 
 his children, may confirm the appointment of such guardian or 
 guardians, who shall thereupon be empowered to act as afore- 
 said, or make such other order in respect of the guardianship 
 as the Court or Judge shall think right. R. S. 0. 1887, 
 c. 137, s. 14. 
 
 10. In the extent of guardians being unable to agree amons: J*''eotion by 
 themselves or with the father upon a question affecting the matters affect- 
 welfare of an infant, any of them or the father may apply to "'« infant, 
 the Court for its direction, and the Court, or Judge, may make 
 such orders regarding the matter in difference as to the Court 
 or Judge seems proper. R, S. O. 1887, c. 137, s. 15. 
 
 IT. Testamentary guardians and trustees, and guanlians 
 appointed or constituted by virtue of this Act shall be remov- 
 able by the Court or Judge, for the same causes as other 
 guardians and trustees. R. S. O. 1887, c. 137, s. 16. 
 
 1 8. The Surrogate Court or Judge referred to in sections 
 1, 14, 15, 16 and 17, is the Surrogate Court or Judge of the 
 county where the infant or respondents, or any of them, reside. 
 R. S. 0. 1887, c. 137, s. 17. 
 
 Authority of Guardians. 
 
 1 9. Unless where the authority of a guardian appointed or 
 constituted under sections 14 or 15 is otherwise limited, the 
 guardian of any infant appointed or constituted under or by 
 virtue of this Act during the continuance of his guardianship, 
 
 1. Shall have authority to act for and on behalf of the 
 
 said ward; 
 
 2. May appear in any Court and prosecute or defend any 
 
 action in his or her name ; 
 
 Removal of 
 gtiardiaiiH 
 
 What 
 
 Surrogate 
 Court or 
 Judge to act. 
 
 Guardian's 
 authority. 
 
 To act for 
 ward. 
 
 To appear in 
 
 actions. 
 
284 
 
 Sec. 23. 
 
 INFANTS. 
 
 Chap. 168. 
 
 c:: 
 
 err 'J 
 
 To manage 
 real and per- 
 eonal estate, 
 etc. 
 
 To bind ward 
 an apprentice. 
 
 1 
 
 Limitation of 
 apprentice- 
 ship. 
 
 
 / 
 
 r-'". ^ 
 
 S..-"''" 
 
 «*•_/ 
 
 In matters of 
 guardianship, 
 Co\jrts to have 
 
 •> 
 
 r 
 
 <-• . 
 
 same powers 
 for examina- 
 tion of wit- 
 nesses and en- 
 forcing de- 
 crees, etc., as 
 in testamen- 
 tary matters. 
 
 
 Rev. Stat, 
 c. 69. 
 
 Procedure un 
 der tliis Act. 
 
 Rev. Stat. 
 c. 59. 
 
 Court or 
 Judge may 
 compel tile 
 attendance ot 
 witnesses. 
 
 ReligiotiB 
 education. 
 
 3. Shall have the charge and management of hi.s or her 
 
 estate, real and personal, and the care of his or her 
 person and education ; 
 
 4. And in case the iiifant is under the age of fourteen 
 
 years, ma with the approbation of two of Her 
 Majesty's ustices of the Peace and the consent of 
 he ward (or in case the infant is not under the 
 age of fourteen years, then with the consent of the 
 ward only), place and bind him or her an appren- 
 tice to any lawful trade, profession or employ- 
 ment; the apprenticeship, in case of males, not 
 extending beyond the age of twenty-one years, and 
 in case of females, not beyond the age of eighteen 
 years, or the marriage of the ward within that 
 age. R S. 0. 1887. c 137, .s. 18. 
 
 POWERS AND PKACTICE OF SURROGATE COURTS. 
 
 /JO. In all matters and applications touching or relating to 
 the appointment, control or removal of guardians, and the 
 security to be given, the custody, control of or right of 
 access to an infant, and otherwise, the several Surrogate 
 Courts .shall have the like powers, jurisdiction and authority 
 for the examination of witnesses, the production of deeds and 
 writings, and generally for the enforcing of all orders, 
 and judgments made or given as ai'e given to them by 'Die 
 Survofjcite Courts' Act in matters testamentary ; and all orders 
 and judgments may be appealed from to a Divisional Court of 
 the High Court of Justice in the manner provided in the said 
 Act in respect of appeals in matters testamentary. R. S. 0. 
 1887, c. 137, s. 19 ; 58 V. c. 13, s. 46. 
 
 "Z 1 . The practice and procedure .shall, except where other- 
 wise provided for by Rules under The Surrogate Courts' 
 Act, conform, as nearly as the circumstances of the case 
 will admit, to the practice and procedure prescribed by 
 the said Act, and all the powers given by the several sections of 
 that Act, to the Judges mentioned in sections 86 and 88 of the 
 said Act, may from time to time be exercised by them, for the 
 purpose of simplifying and expediting the pi'oceedings, and for 
 tixing and regulating the fees to be taken by officers and by 
 solicitors and counsel respectively for business and proceed- 
 ings done and taken under this Act in the several Surrogate 
 Courts. R. S. O. 1887, c. 137, s. 20. 
 
 "ZH. The attendance of any per.son to testify on oath 
 respecting any matter in any proceeding under this Act may 
 be enforced by order made for that purpose, and on the sei'vice 
 of a copy thereof and the payment of expenses as a witness, 
 in the same manner as in an action, or affidavits respecting 
 such matter may be received. R, S. 0. 1887, c. 137, s. 21. 
 
 'ill. Notliing herein contained shall be construed to change 
 the law as to the authority of the father in respect of the 
 relijTfious faith in which his child is to be educated. R. S. O. 
 18.S7. c. 137, s. 22. 
 
INFANTS. 
 
 285 
 
 NOTES. 
 
 the 
 'or 
 In- 
 chI- 
 ate 
 
 ice 
 
 the 
 
 0. 
 
 Custody. At comnioii law tlie father was entitled lo the custody of hij 
 infant cliildien, and a very strong ease was rei|uired liefoie, in Chaneeiy, his 
 rights wouhl l)e interfei'ed with ; Re. Finn (1848) 2 l)e(i. it Sni. 4.')7. In JSniart 
 V. Sr.)art (I8!I2) A.C. 42.5. the Couit refused to take children from tlio custody 
 of tlie mother wiiere tiie father was intemperate and had hy his conduct ren- 
 dered it impossihle that he nntl his wife could live togetlier. 
 
 The father's rights were modified in Englaiul I)y Talfourd"s Act ('2 & 3 Vict, 
 c. .54) by whicii the Court was given an absolute conti'ol of infants under 7 
 years of age ; Waide v. W'anle (1849) 2 Ph. 78(i, and wlien, in the exercise of 
 that absolute contiol, it was of opinion that a chihl within tiie statutory age 
 should be removed from the fathei''s custody, other chihlren were also removed 
 liecause of the pi'inciple that one child shouhl not be separated from the otiiers. 
 In Ontario an Act somewhat similar lo Talfourd's Act was in operation until 
 1887, the ago within which control was given to the Courts l)eing fixed at 12 
 years; R.S.O., 1887 e. 130. 
 
 In England the Custody of Infants Act 1873 (30 & .37 V., c. 12) increased the 
 slatwtorj' age to 1(». 
 
 Discretion Now Absolute. .S. (1) of the present act gives tlie Court an aliso- 
 lute discretion and under it orders have l)een made which would not 
 have been made \indcr the former law. The sul)-section (1) is copied 
 from the English (luardiansliip of Infants Act (4!) & oO V., c. 27) s. o. The 
 discretion therein given is a judicial discretion and nnist be exercised having 
 regard to matters mentioned in the section. Tliese are (1) the welfare of 
 the infant (2) the conduct of the parents, and (3) the wishes as well of the 
 mother — who is jjut first — as of the fatlier. On the first point in cases of 
 children of tender years it is important for childi'cn tliatthey should l)el)rought 
 up in their tender years on terms of affection with one another, and also 
 that they shcmld know both their iiarents. As to the conduct <if the parents, 
 the whole conduct on each side nnist i)e taken into consideration, and the 
 parents are not to bo treated in an unequal numner, — they are to be put on an 
 e(iuality — except that there may be some conduct of the mother, which may 
 be much more important in regard to her chihlren than that of the father and 
 ririi verKii. The wishes of each parent nnist be considered without regard to 
 any rights to which before the act, the father was entitled. The act is a 
 mother's act, and is intended to interfere to a very great extent with regard 
 to the rights of the father wliich are no longer paramount ; Re. A. & R. 
 0897) 1 Ch. 786. 
 
 Mr. Justice Street has stated the law a.-, follows : — 
 
 Where a husband has done no wrong and is alileand willing to support his wife 
 and child the Court will not take away from him the custody (jf the child, 
 merely because the wife prefers to live away from him, and liecause it thinks 
 that living with the father apart from the mother woid<l be less beneficial to 
 the infant than living with the mother apart from the father. The discretion 
 given by the act is to be exercised as a sliiehl for the wife where a shield is 
 recpiired against a husband with whom she cannot be reipiired to live ; it is 
 not to be exercised as a weapon put into the hands of a wife, with which she 
 may compel an inott'ending husband Ui live where she sees fit. The husband 
 still has the right to say within reasonable bounds where he and his family 
 shall live, and if his wife chooses to live in another place she must leave her 
 chihlren behind her ; Re Mathieu (1898) 28 O.R. .")4(i. The case of Re A. & B. 
 (1897) I Ch. 786, was not cited by counsel nor referred to by the Court in Re 
 Mathieu. It is sulimitted that the reasonableness of the conduct of the wife 
 and the welfare of the wife i-hould have received consideration and a compro- 
 mise made if neithei- party was really in fault. In Re A. & B. the custody of 
 tlie infants was coniniitted to the father and mother each for six months in 
 each year. 
 
 Where the husband and wife had separated and a person who was objection- 
 able to the wife was living with the husband and the husband proposed to 
 
286 
 
 INFANTS. 
 
 leave tlie juiisdictioii with tlio cliild — a Woy of ten years — the custc ly was 
 committed to tiie mother ; Re Witteii (18S7) h? L. T. 33(5. 
 
 Wlieie the father was a man of di'iiiiketi iiahits and evil con vei'sat ion .and the 
 motlier was a moral and solier woman who had left him for just cause, and the 
 niiiternal grandniothci' was al)le and willing to supjiort the mothei' and her 
 children, the ciiildren aged ;"> and 8 respectively, were left in the custody of tlic 
 mother ; Re Dickson (188S) 12 P. R. (i't^. 
 
 Where a foreign coiu't having jurisdiction, had, in granting her a divorce, 
 given the custody to the mother, and the hushand had heen guilty of miscon- 
 duct, the child a girl aged eight years -was given into the custody of the 
 mothei- ; Re Davis (]8!»4) 2.', (). R. oTi). 
 
 Where the father was blameless and the mother had left him without any 
 causi! excej)t she j)referred to live in Ontario instead of Florida, tlie custodv 
 was given to the father ; Re Mathieu (1898) 29 (). R. r>4(i ; see also Constahle 
 V. Constahle (188()) M W. R. 649. 
 
 Where the father had licen guilty of adultery, and had made unfounded 
 insinuations against his wife's chastity, and had used foul and indecent lan- 
 guage to her and the children and had l)een harsh and, at times, cruel to her 
 and them, the custody was given to the mother ; Re Young (1898) 29 O. R. 
 
 
 crr3 
 
 Whore both father and mother had been guilty of matrimonial misconduct, 
 and both were able and willing to support the children, the custody was com- 
 mitted to each for six months in each year ; Re A. & B. (1897) 1 Ch. 780. 
 
 In an alimony suit the custodv can be given to the wife without a petition ; 
 Muino v. Munro (1868) 15 Cr. 431. 
 
 Rescinding Order. Whei'e a husband had in divorce proceedings )jeen de- 
 clared initit to have the custody of the children, aged li) and 10, and the cus- 
 tody was given to the wife, the Court, on its afterwards appearing that the 
 mother was no longer fit to have the custody, and that the father was leading 
 a respectable life, transferred the custody to the father ; Witt v. Witt (1891) 
 P. 163. 
 
 Separation of children. All the children should be brought up together and 
 the Court should not di\ide the custoth- ; Warde v. Warde (1849) 2 Ph. 768 ; 
 Re Klderton (1883) 2,5 Ch. D. 220 ; Snuvrt v. Smart (1892) A.C. 425 ; Re Young 
 (1898) 29 O.R. 66.5. 
 
 Agreements Respecting Custody. The general nde is indisputable that any 
 agreement by which a father relinquishes the custodj' of the child aiul renounces 
 the rights and duties which, as a parent, the law casts upon him is illegal as 
 contrary to public policy ; Vaiisittart v. Vansittart (1858) 2 l)e(t. k J. 259 ; 
 Roberts v. Hall (1882) \ (). R. 388 ; Kennedy v. May (1863) 7 CT. 819 ; Hope 
 V, Hope (1857) 8 l)e(i. M. & (J, 731. and a consent by a father, though for 
 valuable consideration may be at any time revoked; Reg. v. Smith, (1853) 
 22 L..T. Q.B. 116. But such a contract may be valid if the conduct of the 
 father has been such that the Court would have removed the children from his 
 custody: Swift v. Swift (1865) 34 Beav. 266; 4 DeG, J. & S. 710. And 
 where on a compromise of a divorce suit it was agreed that the children 
 shimld be kept at such school as the husband should direct, and that their 
 holidays be passed at such places as the trustees of a deed of separation should 
 direct, the stipulation as to the holidays was enforced ; Hamilton \. Hectoi' 
 (1871) L.R. 6Ch. 701. 
 
 Maintenance. Subsection (2) of section 1 is not in The English Act. The 
 Court always had power to order maintenance out of the property of an infant, 
 but had no power to order the father to maintain him ; Wellesly v. Beaufort 
 (1828)2Russ. 19; 31 R.R. 15. 
 
 Mother Guilty of Adultery. Sec. 2 has come down through the several re- 
 visions of the statutes from 18 V. c. 126 s. 4. It places a limitation upon the 
 rights of the mother which does not exist, except as a matter of discretion, in 
 England. 
 
 Infant's Real Estate. Except under order of the Court, no lease can be made 
 of an infant's real estate whicli will be binding after his minority has ceased ; 
 Clarke v. McDonell (1890) 20 O.R. 564. An estate tail in possession may be 
 
INFANTS. 
 
 287 
 
 lieir 
 Lild 
 ptor 
 
 I'lio 
 knt, 
 lort 
 
 I re- 
 in 
 
 It ho 
 
 lide 
 
 sdld under the Act, Re Oray (1895) 26 O.R. So"). Section 3 cannot he iiHcd to 
 sell an infant's estate for a parent's henetit ; Re Hihbard (1891) 14 P. R. 177 ; 
 re McDonahl (1800) 1 (!r. IM) ; Kellar v. Taehe (1868) 1 Cli. Chanih. 388. Our 
 statute has no English ecjuivalent. It ap])ears to have l)een taken from the 
 New York .Statutes; see Rev. Stat. New York (1852) pp. 359, 360. The 
 Court may order a sale to pay debts of the deceased father of tlie infants ; Re 
 Barker (1875) 6 P.R. 22 ; l)Ut sale will not he directed to pay debts of the 
 ancestor to which the infant's estate is liable uidess the estate will sustain loss 
 or the creditors arc about to sue ; Re Roddy (1858) 4 Or. 144. 
 
 A mothcv petitioning for sale will be rocjuired to release a life interest vested 
 in her ; Re Kennedy (1868) 1 Ch. Chamb. 97. 
 
 The sale can only be made when necessary for maintenance or salvage ; and 
 where tlie I'ents were greater than the interest on tlie produce would amount 
 to, the application was refused ; Re Phelan (1857) 6 P.R. 259. It is not the 
 immediate l)ut the ultimate benefit to the infants which must be regarded ; 
 Re McDonald (1868) 1 C'h. Chamb. 97. It is doubtfid if a suggested deprecia- 
 tion by rea.son of the extension of a cit\' in a ditl'erent <lirection is a deprecia- 
 tioi witliin s. 3 ; Re Wilson (1877) 7 P.R. 244 Tlie Court may allow an 
 exchange wider the words sale, lease "or other disposition'"; Re Bishoprick 
 (1874)21 (!r. .-.89. 
 
 Contrary to Devise or Orant. Where the ultimate devise was in favor of 
 one of the infants only, with provisions for substitution, Re Callicott (1868) 1 
 Ch. Chamb. 182, and where the property was to be e(iually divided among the 
 children on tlie youngest attaining 21 years, Re Smith (1875) 6 P.R. 282, and 
 where there was a devise over to collaterals, Re Wilson (1877) 7 P.R. 244, it 
 was held that the sale would be in violation of s. 3 (2) and the applications 
 were refused. 
 
 Consent of Infants- The consent of a majoritv is sufficient. Re Harding 
 (1889) 13 P.R. 112, see R.S.O. c. 1; s. 8 (34). Where some of the infants are 
 out of the jurisdiction, tiieir ooii.sent may be dispensed with; Re Lane (1882) 
 9 P.R. 251, and .so may the consent of an imbecile ; Re Uelantj- (1889) 13 P.R. 
 143. The consent is required only to a sale, not to a i)articular offer, and 
 where the intants had consented to the acceptance of a particular offer which 
 was not carried out, a subsequent offer at a lower price was accepted without 
 a further examination ; Re Bennett (1897) 17 P.R. 498. 
 
 The consent is ascertained bj* an examination of the infant under C.R. 966. 
 and must be annexed to the petition. A certificate of the examination is 
 insufficient ; Re Axford (1875) 6 P.R. 192. The* practice as to applications is 
 laid down in C.R. 960-970 ; Holmested & Langton pp. 1124-1132. 
 
 A subsequent purchaser will not he allowed to object to a title upon the 
 ground that the order for sale did not disclose jurisdiction when it appears on 
 the face of tlie order that the sale is for the infant's benefit ; Blean v. Blean 
 (1885) 10 O.R. 69.3. 
 
 Rights of Succession not to be Altered. The conversion from realty into 
 personalty is not to have any greater effect than is necessary for accomplishing 
 the immediate purpose so far as the rights of persons claiming in succession to 
 the infant are concerned ; Fitzpatrick v. Fitzpatrick (1874) 6 P.R. 1,34, see 
 Lunatics, R.S.O. c. 65, s. 13 and cases cited p. 246. 
 
 Dower. Where the consent required by s. 9 could not be obtained because 
 of the lunacy of the dowress an order was made barring her estate ; re Colthart 
 (1882) 9 P.R. .356 ; see now R.S.O. c. 164, ss. 13, 16. 
 
 Order for Maintenance. The provision for maintenance of an infant pre- 
 sumptively entitled in s. 10 is hard to understand. The section speaks of the 
 " proceeds of the property." By what authority is the property to be sold ? 
 Upon what principle is the Court to proceed in depriving the contingent re- 
 mainderman of his property ? See the section criticized, 14 C.L.T., 207. 
 
 Surrogate Ouardians. (Juardians appointed by the Surrogate Court who have 
 given security, have the authority conferred upon them l,iy s. 19 over the 
 properly of the infant. Without an appointment by the Surrogate Court, a 
 father would have no power Ut give an effectual dischai'go for money payable 
 to his infant cliihl. 1 he guardian so appointed has power to receive and give 
 an effectual discharge for a legacy payable to the infant ; Huggins v. Law 
 (1887) 14 A. R, 383. When it is necessary ts seek the aid or intervention of 
 the Court in respect of moneys belonging to an infant which have not reached 
 
288 
 
 INFANTS. 
 
 
 
 upon giving proper security," re Berrynmn (IS97) 17 
 
 tlie guanlinuH' hands, the Court may retpiire them to be j)aitl into Court ; 
 Mitchell V. Rieiiey (lS(i7) 13 (;r. 44,"). Re Mathers (189S) 18 P. R., 13. 
 
 luNurance monej's may i)e jmid to guardiaiiM appointed by a Surrogate Court, 
 !;. S. ()., c. ■ion, s. l.Vi ii) ; but not to mere testamentary guardians ; Camp- 
 bell V. Dunn (IH(fi) -ii (). <)S. 
 
 A guardian ajj-iointed l)y a Surrogate Court may without leave of i\w Court 
 make a lease of the infant's real estate for the term of the infants minority-, Itut 
 not for a longer jjeriod ; Clarke v. MacDonell (ISilS) '2(1 O. R. .ItM. 
 
 The provisions of sees. ir),5-ir)7 of tlie Ontario Insurance Act, R. !S. 0. c. "203, 
 provide a special mo(le for dealing with the shares of infants in insurance 
 moneys, an<l exclude the application of the ordinaiy rules of law so far as 
 inconsistent there with. 
 
 " And therefore a tutrix of infants duly apjiointed in the Province of Quebec 
 is not entitled f/»(( tutrix to moneys of the infant j)aid into Court under sec. 
 \"i of i\\v. Act, l)ut she may, under sec. bV), h.s. "2, be appointed a trustee of 
 the finid and receive it, 
 P. K., s. 73. 
 
 Mother to be Guardian. !S. 14 is taken from the English " ftuardiansliij) of 
 Infants Act (18S(I)"' (4!) & oO, V. c. 27) s. 2. Before that act a father could 
 appoint a guardian by testament and that guardian was sole guardian notwith- 
 standing that the mother might survive ; per Rigbv L. J., re A. &. B. (1897) 1 
 Ch. 786, 7!t3. 
 
 Mother may Appoint Guardian. S. lo is taken from tlie Knglish Act next 
 aliove mentioned, s. 3(1) (2). By it a new right is given to tlie mother ; jier 
 Rigbv L. J. (1897) 1 Ch. 793. The apnointment must be by will, or by an 
 instrument under seal ; re Chilliman (1894) 2.5 (). R. 26S. Where a guardian 
 is ajipointed by the mother to act during the lifetime of the father, the person 
 so appointed does not become guardian by the mere act of appointment, the 
 appointment must be conlirmedl)}' the (.'ourt, and until cimfirnuition it has no 
 binding ett'ect. The appointment must be made jointly with the father. The 
 confirmation by the Court cannot take place (luring the mother's lifetime. 
 The appointment can be confirmed only when the Ccmrt is satisfied that the 
 father is for some reason unfit to be sole guardian. Although the appointment 
 be not "jointly with the father" effect will be given to it ; Re (J. (1892) 1 Ch. 
 292. 
 
 Direction of Court on disagreement. .S. 16 is from s. 3 (3) of the English Act 
 of 188(i. 
 
 Religious Faith. The wishes of the father as to the religion of the child must 
 be regarded by the Court and must be enforced unless there is some strong 
 
 Re McGrath(1893) 1 Ch. 143; Re Chilliman 
 1876) 6 P. R. 285 ; Re Agar-EUis (1878) 10 Ch. 
 Re Besant (1879) 11 Ch. I). oOS ; Re Scanlan 
 Davis (1862) 10 W.R. 245 ; Re Newbery (1866) 
 
 reason for disregarding them 
 (1894) 25 O. R. 268 ; Re Ross 
 D. 49; (1883)24 Ch, I). 317 
 (1888) 40 Ch. 1). 200 ; Davis v 
 L. R. 1 Ch. 263. 
 
 The making of the children wards of the Court by the father is not an 
 abandonment of his parental authority ; Re Agar-Ellis (1878) 10 Ch. I). 49. 
 
 A contract entered into before marriage that the children shall bo brought 
 up in a particular religion is not binding upon the father and cannot be enforced. 
 Re Browne (1852) 2 Ir. Ch. R. 151 ; Andrews v. Salt (1873). L. R. 8 Ch. 622 ; 
 Re Meades (1871) Ir. L. R. 5 Eq. 98 ; Re Andrews (1873) L. R., 8 Q. B. 154. 
 
 If a good and honest father, taking into his consideration the past teaching 
 to which his children have been in fact subject, and the effect of that teaching 
 on their minds, and the risk of unset;,ling their convictions, comes to the con- 
 clusion that it is right and for their welfare temporal and spiritual that he 
 should take means to counteract that teaching and undo its effect, he is by law 
 the sole judge of that ; Re Agar-Ellis (1878) 10 Ch. D. at p. 74. During the 
 father's lifetime the right to control their religion may be forfeited (a) by 
 moral mi.scoiiduct ; Wellesley v. Welle.sley (1829) 2 Bli. N. S. 124 ; 31 R. R. 
 15 (b) by the profession or immoral or irreligious opinions deemed to unfit him 
 to have the eiiarge of any child at all ; Shelley v. Westbrooke (1821) Jacob 
 26(); 23 R. R. 47; Thomas v. Roberts (1850) 3 DeG. & Sni. 758; see Ro 
 Besant (1879) 11 Ch. 1). 508 or (c) by a course of conduct which would make a 
 resumption of his authority injurious towards the children ; Re Newton (1896) 
 I Ch. 740 — see these propositions laid down by the Court of Appeal j Re Agar- 
 Ellis (1878) 10 Ch. I). 49 at p. 72. 
 
 In re Newton (189(i) 1 Ch. 740, a Roman Catholic father had allowed his two 
 infant children bv a deceased Protestant wife to be brougiit up in the I'rotestant 
 
INFANTS. 
 
 289 
 
 an 
 
 fight 
 3(1. 
 
 522; 
 
 [54. 
 |iing 
 
 ling 
 
 con- 
 It ho 
 llaw 
 J the 
 
 |)i'y 
 
 R. 
 
 Ihini 
 
 cob 
 
 Ro 
 
 ;e a 
 
 lant 
 
 faith until one was fifteen and the other eleven j-eai'H of age, and the Court 
 after an interview with the elder was of opinion that it was for the benefit of 
 the children that the^' shouhl eoulinue to be e<lucated as I'rotestants u|)on the 
 ground that by his conduct he had abdicated the right to conti'ol their religious 
 training. 
 
 Upon a judicial separation obtained by the wife for erueltj' and adultery, 
 the Court reiased to give her the custody of the children as she intended to 
 bring them upas Roman Catholics, a religion ditl'creut from that of the father — 
 althougli both husband and wife were Roman Catholii's at tlu^ time of the 
 marriage, and the (•hildrcn aged nine and seven jears had, during the co-lial)- 
 itation been educated in that faith ; 1)' Alton v.' D" Alton (1S7H) 4 P. I). S7. 
 The children were, theiefore connuittod to the custo<ly of a school mistress 
 with right of access to botii parents, (7/. 
 
 Where a child's religious convictions are so deeply rooted that interference 
 by the father would be injurious to the hapi)iness and welfare of the child, tlie 
 Court has jurisdiction to restrain a father from interfering, l)ut such jurisdic- 
 tion must be exercised witii extreme caution ; Re Meades (1871) Ir. R. 5 Eq. 98. 
 Re Crimes (1S77) Ir. R. 11 Ki). 40."i. 
 
 Where religious instruction in a difi'erent faith from that of tlu^ father had 
 been given by the nu)ther without his consent or knowledge tlu^ court declared 
 that they shouhl be brought uj) in the father's faith and restrained tiie mother 
 from taking them to her place of worsliip without his consent ; Re Agar-KUis 
 (1878) 10 Ch. U. 49. 
 
 On a contest between the father and mother as to the custody of a child of 
 tender years the (jnestion of reli^jious faith is not a pressing one, and if the 
 custody is given to the mother, leave will be reserved totlie fatlier to I'aisetlie 
 ()uestion when the child is older; Re Dickson (1888) 12 I'.R. (i.")9. 
 
 After the father's death his children nnist be educated in his faith ; Skinner 
 V. Orde (1871) L.R. 4 ['.('. (iO. In nuiking an order giving the custody of a 
 child of a Roman Catholic father to a Protestant mother, the Court ordered 
 that at a fitting age she shindd be instructed in the docti'ines of tlie Roman 
 Catholic Chmcii and directed that when she had arrived at seven years of age 
 a further application to the Court should be made timohing her guardianship 
 and religious education ; Austin v. Austin (1865) 34 Heav. 2")8 ; affirmed (18(55) 
 4 UeC. J. & 8. 71(). Where a child was baptized a Roman Catholic at the 
 instance of the father who shortly afterwards died and the Protestant mother 
 bnuiglit the child >ip a I'rotestant until slie was eight and a half years of age, 
 the Court declined to enouire whether the chihl had acquired religious views, 
 and ordere<l the child to l)e brought uj) in the Homan Catholic faith ; Hawks- 
 worth V. Hawksworth (1871) L.R. (5 Ch. 589. A mother who brings a child 
 up in a ditt'erent religion fioni that of the father may be removed from the 
 otfice of guardian ; Re Hunt (1843) 2 Coinior & Lawson 373 ; Skinner v. Onlo 
 (1871) L.li. 4 P.C. ()() ; i)ut the Court will not take a ciiihl of tender years out 
 of the custody of its mother, merely upon the grouiul of ditl'erent religious 
 faith ; Austin v. Austin (1865) M lieav. 257. 
 
 The dire(.'tions of the father's will as to religion must be followed ; Davis v. 
 Davis (1862) 10 W.R. 245. 
 
 15ut where a child, notwithstanding the father's faith or the directions in his 
 will has been brought up in a ditl'erent faith and the Court is .satisfied upon an 
 interview that the distinctive doctrines have taken a firm hold upon his mind, 
 and that a change would not be for his welfare, it is too late to give directions 
 that he be educated in the faith of his father ; Stourton v. Stourton (1857) 8 
 I)e.(;. M. & ii. 760 ; Witty v. Marshal (1841) 1 V. &C. C.C. 68 ; Re Rrowne 
 (1858) 8 Ir. Ch. R. 172 ; but these cases are not to be extended ; Hawksworth 
 V. Hawksworth (1871) L.R. 6 Ch. 539; Re Agar-KUis (1878) lOCh. D. 49. 
 
 Notwithstanding that under s. 14 (1) the mother is giuirdian when no 
 guardian has been appointed by the father, additional guardians may ')3 
 api)ointed by the Court under sub-section 2, ho that the laith of the father may 
 be observed"; Re Scanlan (1888) 40 Ch. D. 200; Re Magees (1892)31 L.R. 
 Ir. 513. 
 
 And where there arc- joint guardians nn order may bo made directing the 
 children to Ihj bi'ought up in the faith of the father without interfering with 
 the mother's custody ; Re Montague (1884) 28 Ch. 1). S2. 
 
 Where the chihlren have with the father's consent been baptized and edu- 
 cated during his lifetime in the nu)ther"s faitli s\icl\ education inay be continued 
 .after his death ; Re (Jarnctt 20 W.R. 222 ; Re Clark (1882) 21 Ch. D. 817, 
 notwithstanding a contrarj" direction in the father's will; Hill v. Hill (1862) 
 10 W.R. 4t)0. 
 
T 
 
 290 
 
 SUPREME COURT APPEALS. 
 
 
 v.. 
 
 c: 
 
 err 5 
 
 SUPREME COURT APPEALS. 
 60-61 Victoria. (Dominion.) 
 
 TreaniMc. 
 
 CHAPTER 34. 
 
 An Act respecting the Supreme Court of Ontario and tlie 
 Judges thereof. 
 
 (Assented to :'9th, June 1S97.) 
 
 Whereas, by Acts of the Legislature of the Province of 
 Ontario it is provided to the effect hereinafter mentioned with 
 respect to appeals to the Supreme Court of Canada, and it is 
 desirable to confirm hereby the provisions of the said Acts ; 
 Therefore Her Majesty, by and with the advice and consent 
 of the Senate and Houstj of Commons of Canada, enacts as 
 follows : — 
 
 1. No appeal shall lie to the Supreme Court of Canada from 
 any judgment of the Court of Appeal for Untnrio, except in 
 the following cases : — 
 
 ((() Where the title to real estate or some interest therein is 
 in (jucstion ; 
 
 (fc) Where the validity of a patent is affected ; 
 
 (c) Where the matter in controversy in the appeal exceeds 
 the sum or value of one thousand dollars, exclusive of costs ; 
 
 {d) Where the matter in question relates to the taking of 
 an annual or other rent, customary or other duty or fee, or a 
 like demand of a general or public nature affecting future 
 rights. 
 
 (e) Li other cases where the special leave of the Court of 
 Appeal for Ontario or of the Supreme Court of Canada to 
 appeal to such last mentioned Court is granted. 
 
 (/) Whenever the right to appeal is dependent upon the 
 amount in dispute, such amount shall be understood to be that 
 demanded, not that recovered, if they are different. 
 
 Judges of '-• The judges of the Supreme Court of Judicature for 
 
 Supienie Ontario shall reside at the City of Toronto or within five miles 
 o' t'^-"\o thereof, but leave to reside elsewhere in the Province for any 
 icside at or specified time may be granted from time to time by the Gov- 
 lu'iir Toronto, ernor in Council. 
 
 No appeal to 
 Supreme 
 Court of 
 ("anada from 
 Court of 
 Appeal for 
 Ontario. 
 
 Kxceptions. 
 
Hi 
 
 SUPREME COURT APPEALS. 
 
 291 
 
 ^ 
 
 NOTES. 
 
 Act Not Retrospective. 'I'lu^ Art liimtinj^ tin- iij,'lit of appciil does not apply 
 to proicodingH whiili were pomling on 2J(tli .Iiino ISitT, wlion it canio into for<;e ; 
 Hy<k- V. I-inclsiiy (IW'JS) IS C.L.T. 373. 
 
 Preamble. The Act referred to in the preamble is R.S.O. c. 41), ». '2, « lii<ii 
 proviilcH timt " in any action rcHpei'ting pi'operty or civil rights whetiicr for 
 (laniHKCN <ii' for Hpoeitiu relief the judgnicnt of tlie Court of Appeal for Ontario 
 Hhall he filial e.\ce])t in certain eancs, wliicli exceptions are similar to liio 
 exceptions in the I )ciiiiiiiion Act. This Act was declared hy the Supifiiio 
 Court more than once to lie ii/hii ririn and not i)iiidiiig upon it ; (.'hirkson v. 
 Rvan (18!M))d7 fS.C.H. iJol. Tiie Ontario Act contains no provision similar to 
 s.'l (f). 
 
 Title to Land. Wiiere a secoiul iiiortgagc for more tiiaii .•<1,00() iijion land is 
 atta< ked as a fraud u|)on creilitors and (tending the action tlic land is sold and 
 thesuqiluM over the first mortgag(! is less than .Sl.iKMI no api)eal will lie. The 
 title to land is not then in ()uestioii ; .lerniyn v. Tew ( ISStKt 28 S. C. R. 497 ; 
 Where a lessee claimed to hold the property under i\ vcrhi'l agievment of sale 
 title to land was in ipiestion ; lUaehford v.'.McHaiii (1S<)0) 1!; S.C.R. 42 
 
 Where a defendant has innocently encroached with his huilding upon ])lain- 
 tiff's laml and there is no contest a.s to the liare ownership of the ])iece in dis- 
 pute, hut the defendant claims to hold it on payment of reasoiiaiile indemnity 
 title is in nuestion ; Dclorne v. (Jusson (1S})7) 28 S.C.R. 00, and where the 
 action is to estalilisli houndaries an appeal lies; Mc(!oey v. Leamy (1807)27 
 S.C.R. 103. In an action to <|uash a hy-law for the expropriation of land the 
 title to land is in (|ue8tion ; Murray v. Westniount (1897) 27 IS.C.R. 579. The 
 words " title to real estate or some interest therein "' would include an ease- 
 ment ; Chamberland v. Fortier (1894) 23 S.C.R. 371. 
 
 Amount in Controversy. Subsections (c) and (f) must be read together ; (f) 
 is similar to the pi'ovision respecting appeals from (^iiebeo (54 & 55 V. e. 25, s. 
 .3.) The pro])er way to determine tlie amount in controver.sy is to look at the 
 amount demanded liy the statement of claim even though the actual amount in 
 controver.sy in the (Jourt appealed from less than .SI, WW ; Laberge r. Etjuilable 
 Life Assurance Society (1894) 24 S.C.R. 50 ; but it is imly the pecuiiiarj- inter- 
 est of the party ai)pealing which can be considered ; Labelle v. 15arbeau (1889) 
 10 S.C.R. 39() ; Hood v. Sangster ( 1889) 10 S.C.R. 723. Where the claim of 
 creditors attacking a fraudulent conveyance was under the appealable amount 
 the appeal was ((uashed although the value of the land was .SI 1,000 ; Flatt v. 
 Ferland (1802)21 S.C.R. 32. Where ilefendants claim more than the appeal- 
 able amount as a set off against the plaiiitifl''s claim, and their claim is <li8- 
 allowed they may appeal : Hunt v. Tai)lin (1895) 24 S. C. R. 30. Where a 
 claim was originally for .^880, and the interest and judgment for more than 
 .'?2,000 was entered after some years and the judgment debtor filed a petition 
 disavowing the appearance of his attorney which was dismissed, it was held 
 he had the right to appeal ; Dawson v. Duniont ( 1891 ) 20 S.C. R. 709. If there 
 arc separate claims against several respondents each under the appealable 
 amount there is no right to appeal ; Stephens v. fiirth ; Re Ontario Express 
 and Transportation Co. (1895) 24 S.C.R. 716. Where the amount involved by 
 the judgment was under the appealable amount, the fact that under certain 
 contingencies more might become involved gives no right to appeal ; Rodier v. 
 Lapierre (1892) 21 S.C.R. 69 ; iMacUonald v. Oalivan (1898) 28 S.C.R. 258. 
 A claim by an assignee under the appealable amount was defeated by a claim 
 over the apj)ealable amount against the assignor. The asn'gnee had no right 
 of appeal; La Ran.iue du I'euple v. Trottier (1898) 28 S. 1 R. 422. Where 
 property seized under an execution is of a value over the appealable amount, 
 and a claimant thereof fails in establishing his title in the Court below he 
 may appeal although the amount of the execution is under §1,000; King v. 
 Dupus (1898) 2S S.C.R. .388, and cases there cited. 
 
 Although a contested claim against an insolvent estate is over §1,000, if the 
 claim of the creditor contesting it is le.ss than that sum he cannot apj)eal ; 
 Lachance v. La Societe de Piets et de Placements de (Quebec (1890) 20 S. C. R. 
 2(K). 
 
 Although the amount claimed maj' have been made to exceed the appealable 
 amount by including Statute Viarred interest the appeal will lie. Avotte v. 
 Moncher (1883) S.C.R. 400. 
 
 If the judgment dc.ils in any way with property of whicli the value is not 
 ascertained an affidavit shouhl be tiled a.s early as possible shewing the value 
 
T 
 
 :292 
 
 SUPREME COURT APPEALS. 
 
 tluTcdf ; Joyce v. Hurt (IH77) 1 y.AlH. 3'2l at p. 33S ; Muir v. Carter (1S8S) 
 l(i S.(;.R. 473 ; Diew'hel v. Auer IiHiincles.eiit Light C(.. (1808) 28S C.R. 208. 
 
 It will lie noticed tliiit Huh-Hee. (c) Hpenk.s of the anioiiiit in oontrovor.sy " in 
 llii fi/i/icdt" (^ueMtioiiM have iiriHeii an to the right of a)i])eal when liy the 
 aiiilition of iiitercHt before judgment the amount, although originally hclnw, 
 han reached the appealahle amount. Kxeept for the jirovision.s of sidj-.sec. (f) 
 the right to ap|H-al would then lie clear ; (l(niriM)perHa<l Kiioond v. Juggutuh- 
 under (18(«l) IS .Moo. I'.C. 472 ; Quebec P'ire AsHce. (Jo. v. An(h'r«on (18(M») IM 
 .Mco. I'.C. 477; 'mt liy the addition of huIi-hcc. (f) the a\ithoriticH upon (Quebec 
 aiipealH may be applicable. S. 2!l of the Suiirenu' and Kxche(pier Court Act 
 (K.S.(,'. e. l;<."i) prohibitK an appeal from (Quebec "in any action cau.w or matter 
 wherein the amount in controversy" does not anuiunt to .'i!2,(MH), and the 
 amiiinit In determined as in sub-Kee. (f) by the amount demaufled, not that 
 recovered. 
 
 In Dufresnev. (Juovremont (I8!M)) 20 S.C.R. 216; the amount demanded was 
 inider the appealable amount, but judgment wan recovered for a mim in excess 
 thereof by means of the addition of interest ; but the right toaj)peal was denied. 
 
 If the j\nisdiction depends upon the amount in contidversy in Ihr, a/i/int/, 
 interest aft<^r verdict and before judgnuuit may b(^ eonsi<lered in estimating the 
 apiicalalile sum ; Hank of Now South Wales v. Owston (I87il)4 App. Cas. 27<>. 
 
 See (,)iiel)cc Moiiimorency and Charlevoix Ry. Co. v. Mathieu (1891) 19 S.C. 
 R. 420. 
 
 Future Rights. The rights must be "vested," not merely "contingent" 
 rights ; ()"l)cll v. (iregory (189/5) 24 S.C.R. 061 ; " Anniud rents" mean ground 
 rents; Rodier v. Lapierre ( 1892) 21 .S.C.R. 09. The words " atVecting future 
 riglits " are governed an<l ((ualified b^' the preceding words, and to make a ease 
 ap|)ealal)le iu)t only must future rights be bound but the future rights so bound 
 must relate to some of the matters or things specified or a like demand of a 
 public or general natiu-i! ; (iilbert v. (lilman (1889) 10 S. C. R. 189 ; Rodier v. 
 Lapierre (1892) 21 S.C.R. 09; (VDell v. (iregory (189.->) 24 S.C.R. 601 ; Ma<- 
 Donahl v. (ialivan (1898) 28 S.C.R. 258. 
 
 It would seem to be clear that as to " demands of a like nature, etc.," they 
 are governed by thfi words "all'ecting future rights." Whether th"se latter 
 words govern also the specified matters in thesub-.section, as annual rents, etc., 
 woidd appear to be more doubtful. It would seem however, that the words 
 should be interpreted in the same manner as the concluding words of s. 29 (b) 
 relating to Quebec Nppeals, and those words, " affecting future rights " it is 
 setti' ' ■" ■ preceding words; Lariviere v. School Commissioners 
 
 for ;i\ VJ4)2;i S.C.R. 723. 
 
 Mig to rent, fee, kc, must be the matter really in coiitro- 
 . M hing collateral thereto ; Chagnon v. Normand (1889) 16 S. 
 
 Aci for . iiands of the following nature are not within sub-sec. (f). For 
 
 an in- iment on a contract; Gilbert v. Gilnian (1889) 16 S.C.R. 189. For a 
 moil' Illy instalment on an annuity under a will ; Rodier v. Lapierre (1892) 21 
 8.1 K. (HI. 
 
 Fo, a separation between Im band and wife where the result would be to 
 
 defef.t a contingent right ; O' I 
 For a half yearly' payment 
 
 Maclaren (1897) 27 S.C.R. 3' 
 For an allowance for nin 
 
 Donald v. (ialivan (1898)'.^ 
 For an in.stalnieni. i.f a pen 
 
 S.C.R. 422. 
 
 (iregory (189")) 24 S.C.R. 661. 
 rrest on moneys left by will ; Raphael v. 
 
 ice of a minor up to 14 years of age ; Mao- 
 
 R. 258. 
 
 ; La Banque du Peuplc v. Trottier (1898) 28 
 
 On the other hand actions l>ir assessments upon property for improvements 
 are within the section ; Reburn v. Ste. Anne (1887) 15 S.C.R. 92; Les 
 Ecclesiastiques de St. Sulpiee de Montreal v. Montreal (1889) 10 S.C.R. 399 ; 
 and so is a petition to set aside an assessment for expropriations for widening 
 streets, Stevenson v. Montreal (1897) 27 S.C.R. 187. 
 
 An action for damages for interfering with an exclusive statutory privilege 
 for a toll bridge att'ects future rights ; (ialarneau v. Guilbault (1889) 16 S.C.R. 
 .579. 
 
 Special Leave. A (juestion of construction of the rules of a benefit society 
 and tlie rights of parties to insurance money under a benefit certificate was 
 hold not to be of sutlicient importan'-e to warrant leave to appeal ; Fisher v. 
 Fisher (1898) 28 S.C.R. 494. 
 
PART VL 
 
 Contracts, 
 
 [293] 
 
294 
 
 CHAPTER 72. 
 
 An Act respecting the Limitation of certain actions. 
 
 
 % 
 
 r 
 < 
 
 
 I 
 
 Limitation of Actions— 
 
 For rent upon a demise, s. 1 (a). 
 
 On specialties, s. 1 (b). 
 
 On recognizances, s. 1 {<•). 
 
 On o'.ards, s. 1 (</). 
 
 For escape, s. 1 (e). 
 
 For money levied under execution, 
 
 s. 1 (/). 
 For penalties, etc. , s. 1 (;/). 
 
 Upon covenants in mortgages, 8. 
 
 1 (/<)• 
 01 account or between merchants, 
 
 8. 2. 
 Dl.SABILITIES, 8. 3. 
 No DISTINCTION BKTWKKN KKSIDENTS 
 
 ANB NON-HKSIDKNTS. 88. 4, 5. 
 CaSE.S of actions AtSAINST .lOIXT 
 
 DEBTOKS, 88. <>. 7. 
 
 Effect of A'KNowLEiMiMKNTs, s. 8 
 Limitation in intkstaiv, b. 9. 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 Limitation ot 1. — (1) The actions hei'einafter mentioned shall be com- 
 im'licingpar- menced within and not after the times respectively herein- 
 ticularactions after mentioned, that is to say : 
 
 (a) Actions for rent, upon an indenture of demise, 
 R. S. O. 1887, c. 60, s. 1 (la), 
 
 {h) Actions upon a bond, or other specialty, except upon 
 the covenants contained in any indenture of mort- 
 gage made on or after the 1st day of July, ISOi. 
 R.S.O. 1887, c. 60, s. 1 {Ih); 56 V. c. 17, .s.'l, part; 
 60 V. c. 3, s. 3. 
 
 (c) Actions upon a recog'^.izance, 
 within twenty years after the cause of such actions arose ; 
 
 id) Actions upon an award where the submission is not 
 by specialty, 
 
 (e) Actions for an escape, 
 
 (/) Actions for money levied on execution, 
 within six years after the cause of such actions arose ; 
 
 (g) Actions for penalties, damages, or sums of money 
 given to the party aggrieved, by any statute. 
 
Chap. 72. LIMITATION OF CERTAIN ACTIONS. SeC. 1 (1). 
 
 295 
 
 UlS. 
 
 within two years after the cause of siieli actions arose ; 
 R. S. O. 1»87, c. 60, s. 1. (1, c—g). 
 
 (Ii) Actions upon any covenant contained in any iiiflen- 
 ture of mortgage, made on or after the Ist day of July, 
 1894, within ten years after the cause of such actions 
 arose. 56 V. c. 17, s. 1, part. 
 (2) But nothing herein contained shall extend to any action Where tiine 
 given by any statute, when the time for bringing the action limited, 
 is by the statute specially limited. R. S. 0. 1SS7, c. 60, s. 1 (2). 
 
 s, s. 
 mts, 
 
 ENTS 
 
 5. 
 
 01 ST 
 
 s. 8 
 
 2. All actions of account or for not accounting, or for Actions of 
 such accounts as concern the trade of niorcliandise between ?'™i^'""*j,f.*''"' 
 merchant and merchant, their factors and servants, shall menced within 
 be connnenced within six years after the cause of such s'" ye-M-&. 
 actions arose ; and no claim in respect of a matter which 
 arose more than six years before the connnenpement of 
 tlie action, shall be enforceable by action by reason only 
 of some other matter of claim comprised in the same account, 
 having arisen within six years next before the connnencement 
 of the action. R. S. O. 1887, c. 60, s. 2. 
 
 the 
 
 BLCtS 
 
 om- 
 ^in- 
 
 3. In case a person entitled to such action, as aforesaid, is In case of 
 at the time of the cause of action accruing within the age of ornia'intW. 
 twenty-one years, or non compos mentis, then such person 
 may bring the action, witliin such time after coming to or 
 being of full age, or of sound memory, as other persons having 
 no such impediment should, according to the provisions of this 
 Act, have done. R. S. 0. 1887, c 60 s. 3. 
 
 ion 
 
 L-t- 
 
 '••4. 
 
 It; 
 
 lot 
 
 ley 
 
 4. A plaintiff who is resident out of Ontario .shall have no Non-resident 
 longer period of time to commence an action than if he 
 
 wei'c resident in Ontario when the cause of action or proceed- 
 ing first accrued. R. S. 0. 1837, c. 60, s. 4. 
 
 5. If a person against whom amy such cause of action accrues, Non-resident 
 is at such time out of Ontario, the person entitled to defendants, 
 the cause of action may bring the action within such times 
 
 as are before limited after the return of the absent person to 
 Ontario. R. S. O. 1887, c. 60, s. 5. 
 
 6. Where a cause of action, with respect to which the As to cases 
 period of limitation is fixed by the Imperial Act of the 21st ^{"^^ debtors 
 year of the Reign of King James the First, chapter 16, section have been 
 
 3, or l)y any Act now in force in Ontario, lies against joint within and 
 debtors, the person entitled to the same shall not be entitled Ontario, 
 to any time within which to commence such action against 
 any one of the joint debtors who was wiiihin Ontario at the 
 time the cause of action accrued, by rea^'ion only that some 
 other of the joint debtors was, at the time the cause of action 
 accrued, out of Ontario. R. S. O. 1887, c. 60, .s. 6. 
 
206 
 
 See. 9. 
 
 LIMITATION OF CERTAIN ACTIONS. Chap. 72. 
 
 ill 
 
 
 'U' 
 
 
 Recdvery 7. The pcrson so entitled shall not he barred from com- 
 
 ■'(f'^T^l* bt"^ nieneing an action against the joint debtor who was out of 
 bar to action " Ontario at the time the cause of action accrued, after 
 '>(?«''n8*: . liis return to Ontario, by reason only that judgment has been 
 absent. already recovered against the joint debtor who was within 
 
 Ontario at the time aforesaid. R. S. O. 1887, c. 60, s. 7. 
 
 V.fSect of writ- 8. In case an acknowledgment in writing, signed by the 
 ten acknow- principal party or his agent, is made by a person liable 
 i)art vayment. upou an indenture, specialty or recognizance, oi m case 
 an acknowledgment is made by such person by part pay- 
 ment, or part satisfaction, on account of any principal or 
 interest due on such indenture, specialty or recognizance, 
 the person entitled may bring an action for the money 
 remaining unpaid and so acknowledged to be due, within 
 twenty years, or in the cases mentioned in clause (h) of sub- 
 section 1 of section 1 within ten years, after such acknowledg- 
 ment by writing, or part payment, or part satisfaction, as 
 aforesaid ; or in case the person entitled is at the time of the 
 acknowledgment under disability, as aforesaid, or the party 
 making the acknowledgment is, at the time of making the 
 same out of Ontario, then within twenty years, or in the 
 cases aforesaid within ten years, after the disability has ceased, 
 as aforesaid, or the party has returned, as the case may be. 
 R. S. 0. 1887,0. 60, s. 8 ; 60 V. c. 3, s. a. 
 
 An action to 
 recover per- 
 fsonal estate 
 of an intestate 
 or any, part 
 thereof, must 
 be brought 
 within twenty 
 years. 
 
 Imp. Act, 23 
 ami 24 V. c. 
 :<8, 8. 13. 
 
 9. No action or other proceeding .shall be brought to recover 
 the personal estate, or any share of the personal estate of a 
 person dying intestate, possessed by the legal personal repre- 
 sentative of such intestate, but within twenty years next after 
 a present right to receive the same accrued to some person 
 capable of giving a discharge for or release of the same, unless 
 in the meantime some part of the estate or share, or some 
 interest in respect thereof has been accounted for or paid, or 
 some acknowledgment of the right thereto has been given in 
 writing, signed by the person accountable for the same, or his 
 agent, to the person entitled thereto, or his agent ; and in such 
 case, no action shall be brought but within twenty years 
 after such accounting, payment or acknowledgment, or the 
 last of such accountings, payments or acknowledgments, if 
 more than one, was made or given. R. S. 0. 1887, c. 60, s. 9. 
 
LIMITATION OF CERTAIN ACTIONS. 
 
 297 
 
 NOTES. 
 
 lis 
 
 Rent and Specialties. Section I was originally taken from Imperial Statute 
 3 & 4 Will. 4, (•. 42, s. 3. The e.\ce])tion as to covenants in nioitgages was 
 introduced in 1894. 
 
 Where a foreclosure or redemption suit is between the mortgagee and 
 mortgagor who fs liable on the covenant, or his heirs f\dl arrears of interest to 
 the statutory limit on the speciality (20 years or now 1(1 years) mav he allowed ; 
 Du Vigier v. Lee (1843) 2 Ha. .'?26 ; Klvy v. Norwood ( 18,52) 5 I)e(";. k Sm. 240 ; 
 Howereen v. IJradburn (187')) 22 Or. !)(} ; Airey v. .Mitchell (1874) 21 (ir. 012 ; 
 MacDonald V. MacDonald (188ti) 11 (). R. 187; l)Ut see these cases discussed 
 in McMicking V. (iibboiis (1897) 24 A. R. ."(80, in which it was decided tliat 
 only six years ariears could be allowed against a subse(]uent encumbrancer 
 coming to redeem, see R.S.O. c. 133, s. 17. 
 
 Penalties. An action by an informer suing ([ui tani, must be brought within 
 one year ; 31 Kliz. c. .'V ; s. 5. 
 
 Mortgages. Where the covenant is to ])ay the principal on ('eniand and 
 interest in tiie meantime, time does not eonnuence to run until a demand is 
 made. Re Brown's estate. Brown v. Brown (1893) 2 Cli. 300. Tiie point has 
 not arisen whethei' a covenant im])lied in a mortgage under R.S.O. c. 121, s. 
 6, is "contained" therein. The English decisions as to the ett'ect of the Real 
 Property Limitation Act on covenants in mortgages, and actions on judgments 
 are not applicable in Ontario ; Allan v. McTavisli (1878) 2 A.R. 278; Boice v. 
 O'Loane (1878) 3 A.R. 107 ; McCullough v. Sykes (1885) II P.R. 337 ^ (^hard 
 v. Rae (1889) 18 O.R. 371. A foreign judgment is not a specialty ; North v. 
 Fisher (1884) O.R. 200 ; Duplex v. l)e Roven (170.')) 2 Vern. .540. 
 
 Actions of Account. The Statute of Limitations, 21 .James I. c. 10 excepted 
 " sucli acconipts as concern the trade of merchandise between marchant and 
 marchant their factors or servants." S. 2 is taken from 19 & 20 V. c, 97, s. 9. 
 The exce[)tion from the Statute of James did not apply to an action of indebit- 
 atus a.ssumpsit, but only to the actionof account or to an action on the case for 
 not accounting ; Inglis v. Haigii (1841) 8 M & W. 709 ; Russe'.l v. Rol)ertson 
 (1844) 1 U.C.R. 23.5. The phrase "comprised in the '.same account" means 
 " that would have been comprehended in ; Knox v. (iye (1872) L.R.5 H.L. 
 650. Where partnership dealings were closed more tlian six years before 
 action, an action for an account was held to be barred, notwithstanding a 
 payment to plaintilTs solicitor, witliout his knowledge, within six years, paid 
 as the full amount due him ; Cotton v. Mitchell (1883) 3 O.R. 421. 
 
 Disabilities. Where the Statute begins to run it continues notwithstanding 
 any subse(iuent disability ; l)<je d Dixon v. (irant(l834) 3 O.S. 511 ; Wigle v. 
 Stewart (1869) 28 U.C.R. 427. The fact that the cause of action is one as to 
 which service out of the jurisdiction may be allowed will not prevent the dis- 
 ability attaching : Musurus Boy v. (Jadban (1894) 2 Q.U. 352. Merely touch- 
 ing Ontario for a temporary purpose would not be a "return" ; Oregorj' v. 
 Hurrill (182.1) I Ring. 324 ; but a temporary sojourn oven by a foreigner would 
 be a "return" ; I'ardo v. Bingham (1809) L.R. 4 Ch. 785. 
 
 Payment or Acknowledgement. 'I'he Statute 21 .fames 1 c. 10 contained no 
 provision respecting payments or acknowledgements, but by numerous cases 
 thereon, reference to which is made in the notes to R.S.O. c, 146, a new 
 promise was inferred from a payment, and also fr(mi an acknowledgment 
 when the terms of such acknowledgment were such that a promise coidd be 
 inferred. The cases under the Statute of .lames as moditied by R.S.O. c, 146, 
 are not therefore strictly applicable to acknowle<lgmcnts or payments made 
 wi*:!". r?spect to specialty debts. Sec. 9 of the Statute under discussion makes 
 e> press },\'ovision for acknowledgments and payments, and gives a new start- 
 ing point 'or the limitation provided for in the earlier sections. The Section 
 is talien fr hu 3 & 4 Will. IV e. 42, s. 5. The ))rincipal point of difference from 
 actions or simple contract debts is that though an acknowledgment of a 
 specialty lebt be made iniilcr circumstances which preclude a promise to pay 
 from boint' implied, it will, nevertheless be suflieient to give a new starting 
 point to tlio period of limitation ; Moodie v. Bannister (1859) 4 Dr. 432, and 
 
293 
 
 LIMITATIONS OF CERTAIN ACTIONS. 
 
 Si. 
 
 it will be equallj' good if not made to the creditor, but to a third party, or 
 in an answer to a suit against tiie debtor to wiiieli the creditor is not a party, ib. 
 
 It would appear also that an acknowledgnieut by one joint debtor may keep 
 alive the specialty debt against the others. S. 2 of R.S.O. c. 146, merely 
 applies to cases within the Statute 21 James I. In England unilcr 19 & 20 V . 
 c. 97 (Tlie .Mercantile Amendment Act) a. 14, it is expressly provided that no 
 joint delitor, &c., in cases coming under 3 & 4 Will. IV. c. 42, sliall lose the 
 benefit of that .Statute l)y an acknowledgment given by another joint delitoi'. 
 A payment by anj' person liable or his agent will keep the debt alive as against 
 all persons liable ; Re Frisliy, Allison v. Frisby (1889) 43 Ch. I). 106 ; Barnes 
 V. (Jlentou (1898) 2 Q.B. 223. 
 
 A tenant for life of land under a devise by the obligor in a specialty, in 
 which the heirs were bound is a "party liable"; Roddam v. Morley (18.">()) 1 
 DeG. it J. 1, and so is an assignee of an equity of redemption ; For.syth v. 
 Bristowe (1853) 8 Kx. 716, and so is a tenant for life of an e(|uity of redeni]) 
 tion ; Dibb v. Walker (1893) 2 Cii. 429, and a payment by them "will l)c sutti 
 cient to keep alive an . ^ion on the covenant. The surety on a joint and sev- 
 eral covenant made bj' him and his ])riii( ipal remains liable although no pay- 
 ment or acknowledgment may have been made by him within the statutoiv 
 period if the principal has paid interest within such period ; Re Frisby, 
 Allison v. Frisby (1889) 43 Ch. D. 106. 
 
 But W'here the liability of the prrty making the payment stands upon totally 
 different grounds from that of the person sought to be affected tiiereby the 
 payment will l)e ineffective as to the latter; Coope \-. Cresswell (1866) L. H. 2 
 Ch. 112. 
 
 Distributive Share on Intestacy. An action for a legacy nnist be brought 
 within 10 years, and an action for a share on a intestacy within 20 years, see 
 R.S.O. c. 133, s. 23. A similar di.serepancy occurs in England ; see Williams 
 on Executors ; 9th Ed. 1925. The " present right '' to receive the share does 
 notarise before the assets are actually received by the ■ administrator and 
 therefore where some assets had l)een received more than 20 years and others 
 within 20 the action was held to l)e barred as to the former but not as to the 
 latter; Re Johnson, Sly v. Johnson (188.5) 29 Ch. 1). 964. 
 
299 
 
 CHAPTER 116. 
 
 An Act respecting Powers of Attorney. 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 1 . In case a power of attorney for the sale or management As to a power 
 of real or personal estate, or for any other purpose, provides pro^yfded^ex- 
 that the same may be exercised in the name and on the behalf pressiy to be 
 of the heirs or devisees, executors or administrators of the deceas^e of*^* ' 
 person executing the same, or provides by any form of words constituent. 
 that the same shall not be revoked by the death of the person 
 executing the same, such provision shall be valid and eftectual 
 to all intents and purposes, according to the tenor and effect 
 thereof, and subject to such conditions and restrictions, if any, 
 as may be therein contained. R. S. O. 1887, c. 97, s. 1. 
 
 *i. Independently of such special provision in a power Where things 
 of attorney, every payment made and every act done under and th"d^cease 
 in pursuance of a power of attorney, or a power, whether in etc., of con- 
 writing or verbal, and whether expressly or impliedly given, **'*"^"*^ 
 or an agency expressly or impliedly created after the death of 
 the person who gave such power or created such agency, or 
 after he has done some act to avoid the power or agency, shall, 
 notwithstanding such death or act last aforesaid, be valid as 
 respects every person party to such payment or act, to whom 
 the fact of the death, or of the doing of such act as last afore- 
 said, was not known at the time of such payment or act bona 
 fide done as aforesaid, and as respects all claiming under such 
 last mentioned person. R. S. 0. 1887, c. 97, s. 2. 
 
 to be valid. 
 
300 
 
 HS OF ATTORNEY. 
 
 NOTES. 
 
 ^- 
 
 <«ci!*'» 
 
 
 Law Before the Act. A power of attorney, even to a creditor to receive a 
 (k'i)t, not accunipanied by an assignment of it was revoked by the deatli of the 
 principal, Lepard v. Vernon (1813) 2 Ves. & B. ol. 
 
 The estate of a principal was not lial)le for goods supplied to his agent after 
 his death. Blades v. Free (1829) 9 B. & C. 167 ; .32 R.R. 620. 
 
 A payment uniler a power of attorney made after the death of the principal 
 was illegal, Wallace, v. Cook (1804) "> Ksp. 117, hut Kijuity gave ett'ect to bona 
 jide. deal'.ng.s before the death became known to the attorney. Baily v. CoUett 
 (18i54) 18 Beav. 179. On the insanity of a principal the authority of the agent 
 is revoked. Drew v. Nunn (1879) 4 Q.B.t). 661. 
 
 Where a person has held out another as his agent either by express com- 
 munication, course of dealing or i)y a power of attorney, his estate continued 
 Iial)le until the person acting upon the representation had notice of the revo- 
 cation, except in cases of revocation ))y death. Drew v. Nunn (1879) 4 Q.B.I). 
 668, and Brett, L..I. in the latter case said, at p. 668, " (Suppose that a person 
 makes a representation which after his death is acted upon by anotlier in 
 ignorance that his death has happened ; in my view the estate of the deceased 
 will be bound to make good any loss which may have occuned through acting 
 upon tiiat representation." 
 
 By the present Act, every person acting under a power of \attorney in good 
 faith is protected, notwithstanding that the agency may have been revoked. 
 
 Representatives of Principal. At common law, a person by contract could 
 make iiimself or his estate liable for goods supplied or acts done after his death. 
 See Blades v. Free (1829) 9 B. & C. 167 ; 32 R.R. 620. The present Act 
 enables him to give power to an agent to make a contract after his death in 
 the name of his representatives. The editors have been unable to find any 
 case in which an authority under s. 1 of the Statute has been in (juestion. It 
 is submitted that unless the power is one which the principal could not have 
 revoked, his rejjresentatives may put an end to it at pleasure. 
 
 Irrevocable Powers. Where a j)ower of attorney was given for value, equity 
 woidd not allow revocation. Bromley v. Holland (1802) 7 Ves, 3, 28. 
 
 A power of attorney given as part of a security, Walsh v. Whitcoml) (1797) 
 2 Ksp. ,")6ii, or coupled with an interest, Gaussen v. Morton (1830) 10 B. & t". 
 731, 34 R. R. bm ; Smart v. Sandars (1848) 5 C. B. 895 ; Sinclair v. Dewar 
 (1872) 19 (ir. 59; Clerk v. Laurie (1858) 2 H. & N. 199; Carmichaers cawe 
 (1896) 2 Ch. 643; or operating as a charge, Spooner v. Sandilands (1842) 1 W 
 & C, C.C. .390 is irrevocable. 
 
CHAPTER 146. 
 
 An Act respecting Written Promises and Acknow- 
 ledgments of Liability. 
 
 301 
 
 Written 
 
 ACKNOWLEPOMENT, 
 
 ETC., 
 
 required to take case out of 
 Statute of Limitations in 
 
 CERTAIN cases, S. 1. 
 
 acknowledoment, etc., by one of 
 several joint contractors, s. 2. 
 
 Recovery against joint contract- 
 ors, 8. 3. 
 
 Endorsements by payee on bill 
 or note, s. 4. 
 
 Set off within Statutes of Limi- 
 tations, 8. 6. 
 
 Ratification of promise made dur- 
 ing infancy, to be in writing, 
 8. 15. 
 
 Representation as to credit ok 
 character, 8. 7. 
 
 Consideration for a guaranty 
 need not appear in writing, 
 8. 8. 
 
 Section 17 of The Statute of 
 Frauds, extended to goods to 
 be delivered at a future 
 time, S. 9. 
 
 HER MAJESTY, by and with the advice and con.sent of 
 the Legislative Assembly of the Province of Ontario 
 enacts as follows: — 
 
 1 . No acknowledgment or promise by words only shall be Promise by 
 deemed sufficient evidence of a new or continuing contract ^fficie*S; t""' 
 whereby to take out of the operation of the Act, passed in take the 
 England in the twenty-first year of the Reign of King James „! the statute 
 the First, any case falling within the provisions of the said of Limitations. 
 Act respecting actions ^^ "^^^ '• ^- ^*'- 
 
 (a) Of account and upon the case other than such ac- 
 counts as concern the trade of merchandise between 
 merchant and merchant, their factors or servants ; 
 
 (6) On simple contract or of debt grounded upon any 
 lending or contract without specialty and 
 
 (c) Of debt for arrears of rent ; 
 
 or to deprive any party of the benefit thereof, unless such 
 acknowledgment or promise is made or contained by or in 
 some writing signed by the party chargeable thereby, or bj^ 
 his agent duly authorized to make such acknowledgment or 
 promise. R. S. O. 1887, c. 123. s. 1. 
 
 /8. Where there are two or more joint contractors, or execu- Case of two or 
 tors or administrators of any contractor, no such joint con- tractorsnr^"" 
 tractor, executor or administrator shall lose the benefit of the executors. 
 
302 
 
 Sec. 8. WRITTEN PltOMISES AND ACKNOWLEDGMENTS, Chap. 146. 
 
 
 
 r 
 
 r ' 
 
 /I 
 
 
 said Act .so as to be chargeable in respect or by reason only of 
 any written acknowledgment or promise made and signed by 
 any other or others of them, or by reason of any payment of 
 any principal or interest made by any other or others of them 
 R. S. O. 1887, c. 123. .s. 2. 
 
 Judgment 3. In actions commenced against two or more such joint con- 
 
 where plaintiff tractors, executors or administrators, if it appears at the trial 
 one or more or otherwise that the plaintiff, though barred by the said Act 
 defendants but of King James the First or by thi,« Act, as to one or more of 
 no as o a . ^^^j^ joint contractors, or executors or administrators, is never- 
 theless entitled to recover against any other or others of the 
 defendants by virtue of a new acknowledgment, promise or 
 payment as aforesaid, judgment shall be given for the plaintin 
 as to the defendant or defendants against whom he recovers, 
 and for the other defendant or defendants against the plaintiif. 
 R. S. 0. 1887, c. 123, s. 3. 
 
 Endorsement, 4. No endorsement or memorandum of any payment, writ- 
 the'nav^''not ^®" ^'' made upon any promissory note, bill of exchange, or 
 to take a note, other Writing, by or on behalf of the party to whom the pay- 
 
 ^t'^t' t"* '^''"' '^^'^^ ^^^^ ^^^"^ ™^^^' '^'^'^^l ^^^ deemed sufficient proof of the 
 payment, so as to take the case out of the operation of the said 
 Act of King James. 11 S. O. 1887, c. 123, s. 4. 
 
 Statute to ap- 5. The said Act of King James and this Act, shall apply to 
 ply to set-off. the case of any claim of the nature hereinbefore mentioned 
 
 alleged by way of set-off on the part of any defendant 
 
 R. S. O. 1887, c. 123, s. 5. 
 
 As to ratifica- 6. No action shall be mai itained w^hereby to charge any 
 made du'rins^'' P^^son upon any promise made after full age to pay any debt 
 non-.age. contracted during infancy, or upon any ratification after full 
 
 age of any promise or simple contract made during infancy, 
 unless the promise or ratification is made by some writing 
 signed by the party to be charged therewith, or by his agent 
 duly authorized to make the promise or ratification. R. S. 0. 
 1887, c. 123, s. 6. 
 
 As torepresen- T. No action shall be brought whereby to chjirge any person 
 
 ingthf'charac- ^P^*^ ^^' ^7 reason o^' any representation or assurance made or 
 
 ter,credit,etc., given Concerning oi relating to the character, conduct, credit, 
 
 of a third ability, trade or dealings of any other person, to the intent or 
 
 purpose that such other person may obtain money, goods or 
 
 credit thereupon, unless the representation or assurance is 
 
 made in writing .signed by the party to be charged therewith. 
 
 R. S. 0. 1887, c. 123, s. 7. 
 
 Consideration 8. No special promise made by any person to answer for 
 answor'for an" ^^^ debt, default Or miscarriage of another person, being in 
 other need not writing and signed by the party to be charged therewith, or 
 be m writing. j.,y gome other person by him thereunto lawfully authorized, 
 
 party. 
 
rson 
 or 
 
 or 
 
 or 
 
 is 
 
 lith. 
 
 Chap. 14(). WRITTEN PROMISES AND ACKNOWLEDGMENTS. SeC. 8. ;}03 
 
 shall be deemed invalid to .support an action, or other pro- 
 ceeding to charge the person by whom the proini.se has been 
 made, by reason only that the consideration for the promise 
 does not appear in writing, or by necessary inference from a 
 written document. R. S. 0. 1887, c. 123, s. 8. 
 
 9. Section 17 oi tlie Act passed in England in stntut*' of 
 the 29th year of the Reign of King Charles the Second, Fiiiu(is.2;)Ciir. 
 entitled, "An Act for the prevention of F mds and Perjuries," ed'toccmtracts 
 shall extend to all contracts for the sale of goods of the value, for goods to be 
 of $40 and upwards, notwithstanding that the goods may fuJ,7,e"tiim' * 
 be intended to be delivered at some future time, or may 
 not at the time of the contract be actually made, procured or 
 provided, or fit or ready lor delivery, or although some act may 
 be requisite for the making or completing thereof, or rendering 
 the same tit for delivery. R. S. O. 1887, c. 123, s. 9. 
 
 lor 
 
 in 
 
 I, or 
 
 zed, 
 
304 
 
 WIUrrEX PROMISES AND ACKNOWLEDGMENTS. 
 
 NOTES. 
 
 f „ 
 
 Acknowledgment. Section 1 is fropi SI (ioci. IV . o. 14, s. 1 and 19 & "20 V. c. 
 97, H. 1,S. 'riie Statute "21 .lanifH I. c. I(> made no provision for exti'iiding tlu' 
 pi'iioil of limitation liccaiLsu of an a< knowlcdinient or |)art payment. 'I'lie 
 Statute was .said to lie foinided upon tin; pres\nnption of j)ayment, and that pre- 
 .sinuption wa.s rebutted l>v an adliiinsion tiiat tliedelit was still owinj; ; l.ilov<l v. 
 Maund (1"S8)'2T.R. 7tio', 702; Krost v. liengougli ( 1H2:1) I liing. 2tM) : 2.">H.1-:. 
 621 ; but this theory seems to l)e untenalile; see 2 Win. Saund. 183, 1H4. The 
 ett'eet of the acknowledgment was that a new promise was inferied hased upon 
 the consideration of the old deht : I'iiillips v. I'liillips (1844) 'A Hare, 2i»il : 
 Earle v. Oliver (1848) 2 K.\. !tO ; hut tiiis view seems to lie hased upon the 
 oxjiloded doctiine of jiast consideration and is therefoie unstahle ground. Sir 
 Frederick Pollock's view is that the Statute was one of ))roce(hirt' only and that 
 the delitor might waive the lienetit therehy eonferre ; see I'oUock on ('ontracts. 
 oth Kd., pp. 170, (i24. There are, however', many decisions wliicli can he 
 reconiile(l only with the theory of a new ])romise. 
 
 To Wbat Causes of Action Acknowledgments Extend. 'I"he Statute of .Tames 
 prescribes among others, periods of limitation foi' actions u|)on the case (which 
 includes actions for hreach of contract) and of trespass, detinue, trover, as.sault. 
 mena<e, battery, wounding. imj)ri.soninent and replevin. The doctrine of 
 acknowledgments extends only to actions in whicli deltts are sought to be 
 recovered. " To revive a debt by promise and take a ca.se out of the Statute 
 there unist be an antece<lent debt." An acknowledgment of negligence in mak 
 ing an investment on insulHcient securitv will not take a case imt of the 
 Statute ; Whitehead v. Howard (182(1) 2 Mnxl. & Bing. :{72 ; 2.S R.R. 471. An 
 acknowledgment is inapjilicable to an action of trespass; Hurst v. I'aiker 
 (1817) 1 H. * .Aid. !t2 ; 18 K.K. 44(1, or an action of lu'gligence 1)V an attorney ; 
 Short V. McCartliy (182(1) li H. k Aid. (i2(i, 22 R.R. ."iO.S. In sucli ea.ses tTie 
 action if niaintainal)le at all nuist be on the new promi.se. 
 
 There are no statutory provisions respecting acknowledgments in actions for 
 penalties or sucii as concern the ti'ade of merchandise lielween merchant and 
 merchant, tlieir factors and servants. 
 
 Sufficient Acknowledgments. Thci'c unist be one of three thing.s to take a 
 case out of the Statute. Hither there nuist be an acknowledgment of the 
 debt from which a promise to ])ay is to be implied, oi' secondly, there nnist be 
 an unconditional pronii.se to pay the debt, or thirdly, there mu.st be a condi- 
 tional promise to ])av the debt and evi<lence tiiat the condition has been jier- 
 fornied; per Mellisii L. ,T. ; Mitcheirs claim (1871) L.R. (i Ch. 828. From a 
 simple acknowledgment a promise to pay may be im])lii'd, but if there be an 
 express promi.se, no promise can be implied from the acknowledgment, Meyer- 
 hotfv. Froehlick (1878) 4 C.l'.l). (i.S. 
 
 The following are instances of sufficient acknowledgments : — 
 
 Depositions in another action signed bv the debtor ; Hoblin v. McMahon 
 (1889) 18 O.R. 219 ; Smith v. Poole (1841) "12 Sim. 17. 
 
 A promise to have the amount placed to the plaintifTs credit ; .Jones v. Brown 
 (1859)9 0. P. 201. 
 
 " I will try to pay you a little at a time if yem will let iiie. I am sure I am 
 anxious to get out of your debt. I will endeavour to send vou a little next 
 week." Lee v. Wiln'iot (18()(i) L.R. 1 Ex. 304. 
 
 "I ."hall be obliged to you to send in your acccmnt made up to Xmas last. 
 I shall have much work to be done this spring ; but cannot give further oi'dei's 
 until this be done." Again, " Vou have not answered my note. 1 again beg 
 you to send in your occount as I particularly re<iuire it in the course of this 
 week." Quincey v. Sharpe (1870) 1 Ex. D. 72. 
 
 "I return . . . alxnit Easter. If j'ou send me the particulars of your 
 account with vouithers I shall have it examined and clie(|ue sent to you for the 
 amount due, but you must be under some great mistake in sup))osing that the 
 am<mnt due to vou is anything like the sum vou now claim." Skcet v. Lindsay 
 .(1877)2 Ex. D.'.SU. 
 
WllITTRN PROMISES AND ACKNOWLEDOMENTS. 
 
 305 
 
 \\ 
 
 "The (iltl ficiouiit Ix'twucn us wliich lias l)efii stiintling over so long lins iu)t 
 eHfn]><'il Dui' iiioiiiory, .'iml so soon iis mo ciiii get our affairs arningeil we will see 
 you are paid ; perliaps in the meantime you will let vi>ur clerk send in an 
 account of how it stands," Chasemore v. Tumor (187')) L.R. 10 {),]i. ")(>(». 
 
 " Send in your nfcount," ("urwon v. Mill)uni (1889) 4"i Ch. 1). 4'24. 
 
 " At present it is utterly out of my power to do anything ; I am willing to 
 laj' vou any reasonahlc intoiost to let the matter remain for tho present," 
 A'ilhyv. Elg( 0(1875) L.R. lOC.l'. 497. 
 
 A request for delay ; CoUis v. Stack (18r)7) 1 H, * N. 005 ; Corn forth v. 
 Sniithard (18.-)9)5 H."& N. l.'J, 
 
 " The best way would he for you to draw for the l)alancc of vour money." 
 Dphhs V. Humphries (1834) 10 Hing, 440, 
 
 A promi.se to remit ; Lang v. MacKeiizie (18.S0) 4 C. & P. 403. 
 
 " I don't see how it is possible for me to he inditt'orent on the matter of tliis 
 debt. If I wero able in any way to redin;o it further you may bo ijuite sure 
 
 1 slumhl do 80." Re Hu.skin (1894) 15 R, 117. 
 
 " I shall go to my attorneys and pay tho debt and settle it." Triggs v. 
 Newnham ( 1825) 1 \). k ]'. (531. 
 
 Letters expressing present inability but a desire to pay. (irnnt y. Cameron 
 (1891) 18 S.C.R. 710; Leo y. Wilmot(18«e) 4 H. & C. 4(i9 ; Dodson y, Mackey 
 (1835) 4 N. & M. :V27 . Hir.l y. (Jammon (1837) .? Bing., N.C. 883 ; Morrell v. 
 Frith (1838) 3 M, & W. 40'2. 
 
 A letter saying the demand is not a just one, and disputing tho amount, but, 
 "I am rcadj' to settle tho account wheneyer" tho plaintitl' " thinks proper to 
 meet on tho business." Colledgo y, Horn (1825) 3 Hing. 119 ; 28 R,R. 000. 
 
 An admission of a debt coupled with a claim that it was discliargod b^- a 
 written instrument which proyed not to amount to a legal discharge ; Parting- 
 ton y. Hutcher (1800) Ksp, 00, 
 
 Asking an explanation of the items of tho account ; Sid\vill v. Mason (1858) 
 
 2 H. & N, 300. 
 
 Crediting tho amount in a contra account ; Waller y. Lacy (1840) 1 M, & (». 
 54. 
 
 A j)romiso to pay interest on tho amount claimed ; Taylor v, Steele (1847) 
 16 M, & \V, 005. 
 
 Inserting the amount of the creditor's claim in a statement of the debtor's 
 affairs giyen by him to the creditor ; Holmes y. iSIackroll (1858) 3 C.B.N. S. 789, 
 
 Referring a creditor to an assignee for tho benefit of creditors ; Baillio y. 
 Inchicjuin (17.)0) 1 Esp, 435, but see, re Mitchell's claim (1870) L.R, 6Ch. 828. 
 
 A letter from a surety asking the creditor to .sue the principal debtor ; Fisk 
 V, Mitchell (1871) 24 L.T, 272 ; Humphreys y, .Tones (1845) 14 M. & W. 1, 
 
 A debtor endorsing a barred note with his initials and the date ; Bourdin v. 
 Greenwood (1871) L,R, 13 Kq, 281, 
 
 Giying a bill of exchange to the creditor, Kx parte Wilson (1841) 1 Mont. 
 D. & D. 586. 
 
 An account stated although the items are all on one side ; House y. House 
 (1875) 24 C.P. 526. 
 
 An acknowledgment assuming a debt as to which there was a contention 
 that it should be charged against a younger sister and brother is sutHcient also 
 for the purpose of the Statute ; Lyon y. Tiffany (1805) 16 C.P. 197. 
 
 An acknowledgment of an unsettled account on which something is or may 
 be due; Banner y. Berridge (1881 ) 18 Ch. I). 254; Prance y, Sympson (1854) 
 Kay ()7S ; Curwen v, Milburn (1889) 42 Ch. D. 424, or bj- recital in a reference 
 of accounts to arbitration ; Cheslyn y, Dalby (1840) 4 Y, & C, 238; but see 
 Hales V. Steyenson (18()2) 7 L.T. "317, 8 L,T,'798. 
 
 Conditional Promises- If the promise to paj- is conditional it must be shown 
 that the condition lias Ijcen performed ; Tanner y. Smart (1827) B. & C. 603 ; 
 ,30 R.R. 401. The following are instances of conditional promises roijuiring 
 proof of the happening of the specified event. 
 
 " I will pay as soon ar I am able,'" Scales v. Jacol)s (1820) 3 Bing. 038 ; Tan- 
 ner V. Smart'(1827) (i B. & C. 003 ; 30 R.R. 461 ; 
 U. 
 
 
308 
 
 WUITTEN PUOMISES AND AtKNOWLEDOMEXTS 
 
 
 Haydoiiv. WilliiuiiH (l«30) 7 Hiiig. 163; Hammond 
 (Jemmell v. Cotton (1856) (i C. 
 ; Woodliaiii .v Hollis 
 KdimindH v. Dowiich 
 you cim pay yourself then-out"; Aytmi v. 
 ; Richardson v. Barrj' 
 nuthell (1887) 34 Ch. 
 
 " As soon as my power, Mi 
 V. Smitli (1S04) 33 Ik-av. 4r):J; 
 
 '' Shall rememl)er you as soon as possible 
 r. .■)7 : 
 
 " When I may ho ahlo to pay you, I cannot, now «ny " 
 (1S33)3 L..T. (K.H.)70; 
 
 " I shall l)e ha|>i)y to pay as soon as convenient " ; 
 (1S34)-2C. & M. 4.".!i: 
 
 " If vou lau recover from (i 
 Howies (1827) 4 IJing. lO") ; 
 
 "If in fluids I would immediately pay the money ' 
 (1861) L'y Bcav. ±». 
 
 " I will send vou a chciiue as soon as I can " ; Re 
 1). .■)61. 
 
 " I sluill he gild, as soim as my position hecomes somewhat lietter, to hegiu 
 again and contniue with my instalments " ; MeyerhoH' v. Froelich (1878) 3 C. 
 I'.l). 333; 4C.1M). 63 ; 
 
 " It will l)c imiHJSsible for me to pay you anything until my scm's estate is 
 wound up" : Kohlin v. Mc.Mahon (1889) 18 O.R. -219 ; 
 
 A recognition of a debt in a submission to arbitration is ineffective if tiie 
 arbitration proves abortive ; Hales v. Stevenson (1862) 7 L.T. 317 ; 8 L.T. 798. 
 
 A statement by an executor that if there were assets the debt should be 
 pai<l is conditional ; Lampman v, Davis (1844) 1 U.C.R. 179. 
 
 When the condition is performed, time immediately connnences again to run 
 iiltlumgb tiie creditor is not aware of its performance; Waters v. Thanet (1842) 
 2 Q.B. 7">7 ; Bateman v. Brider (1842) 3 Q.B. 574. 
 
 New Time of Payment. Wliere tiie acknowledgment specifies a new time for 
 pavtncnt, no promise can be implied to pay at an earlier date, e.g., a promise 
 to'i)av in two years ; Wheatlev v. Williams (18.36) 1 M. & W. .')33 ; or after 
 taxation of cos"ts ; Nichols v. Regent's Canal Co. (1894) 63 L.J.Q.B. 641 ; 71 
 L.T. 249, 836 ; Archer v. Leonard (1863) 16 Jr. Ch. R. 267. 
 
 But coupling an acknowledgment with a su^'gesticm as to a particular mode 
 of |)avment will not of itself prevent an al)solute promise lieing inferred ; 
 Kvan's v. Simon (1853) 9 Ex, 282. 
 
 To Whom to be Made. The acknowledgment must bo made to the creditor or 
 to some person on his behalf ; (Joodman v. Boyes (1890) 17 A. R. .'528 ; Tanner 
 V. Smart (lS28) 6 B. & C. 603, 30 R.R. 4()1 ; Rogers v. Quinn (1889) 26 L.R., 
 Ir. 1.36; (ireiifell v. Oirdlestono (1837) 2 Y. & C. 662 ; Fuller v. Redman (1859) 
 26 Eeav. 614 ; (ireen v. Humphreys (1884) 26 Ch. I). 474. 
 
 A letter to the debtor's partner undertaking to give him an a.sBignment on 
 liis satisfying plaintitTs debt and doing other things is sulHcicnt ; Re Hind- 
 marsh (1860) 1 Dr. k Sm. 129. 
 
 An acknowledgment after the creditor's decease to the person who is entitled 
 to and afterwards docs take out Letters of Administration is sufficient ; Rob- 
 ertson v. Bunill (1895)22 A. R. 356: see Beard v. Ketchum (1848) 5 U.C.R. 114. 
 
 By Whom to be Made- The acknowledgment must be made by the debtor or 
 liis agent. 
 
 An acknowledgment by a wife who has Jiecn accustomed to act as the hus- 
 band's agent in purchasing the goods and managing the business is sufficient ; 
 Anderson v. Sanderson (1817) 2 Stark. 204; 17 R.R. 681 ; 19 R.R. 703; 
 Gregory v. Parker (1808) 1 Camp. 394, 10 R.R. 712. 
 
 Xv. acknowledgment of a debt by an infant is sufficient ; Willins v. Smith 
 (1854)4 E. & B. 180. 
 
 An acknowledgment by an executor or administrator is sufficient ; Smith v. 
 Poole (1841) 12 Sim. 17 ;"'Fordam v. Wallis(1852) 10Hare217, anil an acknow- 
 ledgment by one of several executor.'; is good ; Re MajDonald, Dick & Fraser 
 (1897) 2 Ch. 181 ; Fordham v. Wallis (1852) 10 Hare 217 ; but see TuUock v. 
 Dunn (1826) Ry. & Mood. 416, 27 R.R. 765 ; Scholey v. Walton (1843) 12 M. 
 & W. 510. 
 
WRITTEN PROMISES ANM) ACKNOWLEDGMENTS. 
 
 :i07 
 
 After jiidgnieiit for ndministrntiun the perBoiml i iresoiitiitivo has no right 
 to i/ive an iicknowIidgnHtit ; I'hiliiw v. Beal (I86"2) 3'2 Beiiv. 27 ; see Midgloy 
 V. Mi<lgley (1H93) ". Cli. 282. 
 
 A iiiero iKlviTtibuinent for cri'ditor.s l>y a porHonalit'preseiitHi ivoiK inf'.tt'niieiit, 
 but if the iidvertiHement statt-s he will nay all (lei)tH justly iluc it niav l)c hiilfi- 
 cient ; Scott v. Jones (1830) 1 Rush. & Myl. 2.V), 4 ( i. a F. 3H:2. 
 
 An executor (h sou tort cannot make an acknow'.Klgii'eril bliuling on the 
 rightful adiuinistrator; (irant v. McDonald (18(50) 8 (ir. •)ti8. 
 
 Signature. The acknowledgment must l)o signed. liia it ni.iy 'mj at the 
 lop of an account in the debtor's handwriting; Holmes w Muukrell (18S8) 3 
 C.B.N.S. 789. 
 
 An unsigned afknowle<lgnient enclosed in a letter written by the debtor's 
 wife was held to be insutiicient ; Ingram v. Little (IH83) ! '.'ab. & V,. I,S6. 
 
 Must be Made Before Suit. The acknowledgment nnist be made biforo action; 
 Ratemun v. rinilcr (1S42) 3 (>).15. 574; see Lucas v. Dison (188;)) 22 (,>.H.D. 'Mil. 
 
 Parol Evidence. Wliere no amount is specified parol e\ iilcnce may l)e given 
 to identify the debt leferred to and the amount thereof ; Lechmere v. Fletcher 
 (1833) 1 C. & M. 623, 3 Tyr. 4.">0 ; Dickenson v. Hatfield (1831) o C. k P. 46 ; 
 Hartley v. Wharton (1840) 11 A. k K. 034 ; Cheslyn v. Dalby (1840) 4 Y. k 
 C. 238 ; Spickernell V. Hotham (1854) Kay 669; Barwick v. Barwick (1874) 
 21 (Jr. 39. 
 
 If the acknowledgment is without date parol evidence may be given to show 
 when it was made ; Kdmunds v. Downs (1834) 2C. & M. 459, and if it has been 
 lost, parol evidence may be given of its contents ; Haydon v, Williams (1830) 
 7 Bing. 163. 
 
 Parol evidence may be given to show that the facte attending the acknow- 
 ledgment were such as to negative a promise to pay, as where the parties 
 agreed to a set-off; Cripps v. Davis (1843) 12 M. & W. 159. 
 
 The question should be left to the jury as to whether the acknowledgment 
 refers to the debt ; Frost v. Bengough "(1823) 1 Bing. 267, but if there was 
 only one debt it will be presumed to do so ; Barwick v. Barwick (1874) 21 Or. 
 39; Kvans v. Davies (18.36) 4 A. & E. 840. 
 
 If the acknowledgment is, owing to extrinsic facts, ambiguous, it may be 
 left to the jury to say whether a promise can be implied therefrom ; Lloyd v. 
 Maund (1788) 2 T.R. 760 ; Linsell v. Bonsor (1835) 2 Bing. N.C. 241 ; Morrell 
 V. Frith (183S) 3 -M. k W. 402 : but ordinarily the construction and effect of 
 the acknowledgment is for the judge ; Sidwell v. Mason (1858) 2H. k N. .306 ; 
 .Morrell v. Frith (1838) 3 M. k W. 402. 
 
 Insufficient Acknowledgments. Two tests must be applied to an acknowledg- 
 ment ; First, the acknowledgment must be clear in onler to raise the impli- 
 cation of a promise to paj'. An acknowledgment which is not clear will not 
 raise that inference ; Secondly, supposing that it is an acknowledgment of a 
 debt which would, if it stood by itself be clear enough, still if words are found 
 combined with it which prevent the possibility of the implication of the 
 promise to pay arising, then the acknowledgment is not clear within the mean- 
 ing of the (tefinition ; because not merely is there found in the words some- 
 thing that expresses less than a promise to pay ; but because the words express 
 the lesser in such a way as to e.Kclude the greater ; Green v. Humphreys (1884) 
 26 Ch. D. 474. 
 
 The following are instances of insufficient acknowledgments : — 
 
 " I cannot afford to pay my new debts, much less my old ones" ; Knott v. 
 Farren (1824) 4 D. & Ry.*179. 
 
 ' ' I will see my attorney and tell him to do what is right " ; ^Miller v. Cald- 
 well (1823) 3 D.'cfe Ry. 267. 
 
 " I know that I owe the money, but the bill I gave was on a 3d receipt 
 stamp, and I will never pay it " ; A'Coiu't v. Cross (1825) 3 Bing 329. 
 
 " Send me j'our bill, and if just I will not give j'ou the trouble of going to 
 law " ; Spong v. Wright (1842) 9 M. & W. 629. 
 
 " I thank j'ou for your very kind intention to give up the rent of T.B." (an 
 estate of his wife, the rent of which was being applied on the debt) "But I 
 am happy to say at that time, both principal and interest will have lieen paid 
 in full" ; Green v. Humphreys (1884) 26 Ch. 1). 474. 
 
308 
 
 WRITTEN PROMISES AND ACKNOWLEDGMENTS. 
 
 7:' 
 
 
 " I have a receipt in full of uU (lemiiiidH. I shall search for it and let j'ou 
 know in the event of niv not heins,' al>le to find it." Bryilges v. I'luniptre 
 (l,S27) I). & Ry. 740 ; "Bilk v. Ouy (LSO.S) Esj). 184. 
 
 Where a deht.ir disputed the earlier items in the account, hut admitted the 
 sul)se(|uent ones, and enchised a cheiiue therefor, no implication of a promise 
 to pay the earlier items could lie raised ; Urigstoeke v. Smith (18HS) 1 (J. & M. 
 48,S :"S Tyr. 44.") ; 38 R. 11. ()7(). 
 
 An unaccepted oii'er t.. iiay in goods ; Cawley v. Furnell (1852) 121'. .J., 291 ; 
 or land ; Young v. Moore (ISBS) 23 IJ. V. R. 151, or shares ; Lowndes v. (Ji'.nett 
 & Modeley (iold Mining Comimny (1803) 10 L. T. .329. 
 
 The insertion of a del)t in a bankrupt's statement of affairs ; Kverett v. 
 Robertson (1858) 1 K. dt. K. 10 ; Courtney v. Williams (1844) 3 Hare 539 ; Kx 
 parte Topping (1800) 4 DetJ, J. & 8. 551 ; Pott v. Clcgg (1847) 10 M. & W. 
 .321. 
 
 An otter " without prejudice "" if unaccepted ; Miichell's case (1871) L. R. 
 Ch. 822. 
 
 " I acknowledge the receipt of the mone3', but the testatrix gave it to nie." 
 Owen V. Wolley (1751) B. N. P. 148. 
 
 An admission made to a perscm who at the same time purports to sign a 
 discharge of the del)t ; Ooate v. (ioate (1850) 1 H. & N. 29. 
 
 Where the fair ett'ect of a letter is that the writer is not certain whetlierthe 
 debt is owing ; CoUinson v. Margesson (1858) 27 L. .!., Ex. 305; Mct'orniack 
 V Bervcy (1845) 1 U.C.R. 388. 
 
 An unaccepted proposal ottering to .set-otFa claim of the debtor ; Francis v. 
 Hawkesley (1859) 1 K. & E. 10.52; see Williams v. firittith (1849) 3 Ex. 335. 
 
 An account .stated between the debtor and others though including the 
 creditor's account ; Nash v. Hill (185S) 1 V. & F., 198. 
 
 Entries made in debtor's Itcoks ; .Tackson v. Ogg (1859) 1 Johns. 39,". 
 
 A (jualified acknowledgment with a threat to do nothing if the creditor pro- 
 ceeds ; fearn v. Lewis (1830) OBing. 349 : 31 R. R. 4.34. 
 
 A statement that he owed nothing, but offering S50 rather than have 
 trouble ; Spalding v. Rarkei (1840) 3 U.C.R. 00. 
 
 "The notes are geiniinc, but I am under the impression they were paid." 
 Grantham v. I'owell (18.50) U. C. R. 494. 
 
 The debtor's atton "• •vrote that " the debt has not b<'en paid, but tlie 
 defendant has no property, and I cannot help the debt being unpaid " ; Dougall 
 V. Cline (1850) U. C. R. 540. 
 
 All unaccepted ofl'er of a composition ; Barnes v, iMetcalf (1859) 17 U. ' ' 'i., 
 388 ; Gibbon v. Ragshott (18.32) 5 C. & P. 211. 
 
 For furl her inE,.,ances see, .Tupp v. Powell (1884) 1 C. k E. 349; Robarts >. 
 Robarts 0,S28) 3 C. & P.. 290; Re Wolmersiiausen (18!;0) 02 L. T. .541; 
 Cassidy v. Firman (1807) 15 W. R. 432 ; Roulledge v. Ramsav (1838) 8 A. & 
 E. 221"; C'owford v. Crawford (1867) Ir. R., 2 E.). 100. 
 
 Acknowledgement of Payment by Joint Contractor. An acknowlcdgmem or 
 part-pavmcnt li' i partner of a partnersliip debt during the partnevshi])\\ciuld 
 take the debt .lUt of the Statute ; (ioodwin v. Parto-i (1879) 41 L. T. 91 : 42 
 L. T. .508; Watson v. Woodnum (1875) L. R., 20 IC.;. 7:W ; l)ut not afto>' 
 dissolution ; Thompson v. Waithman (1850) 3 D". 028. 
 
 The provisions of Section 2 as to the exccutois licing chargeable on an 
 acknowledgment or ])avmcnt made 1)V one, mean "))ers(>nallv chargealilc " ; Re 
 MacDonald (1897) 2 Ch. isl, 188 ; Re Hollingshead (1888) 37 Ch. D. l>51. 
 
 Endorsements. Sec. 4 is similiar to Lord Tenderden's Act (9 Geo. IV c. 14) 
 8. 3. 
 
 An eridornement was formerly admissible as evidence of payment as being a 
 statement made by a deceased person against his pecuniary interest ; Briggs 
 v. Wilson (18.54) .5 1). M. & G. 12. 
 
 An entry or dcrlaraticm in writnig against the i)eciniiaiy interest of the 
 deceased in I'.is books or in any other document tlian that containing the con 
 tr.act is st = ". admissible : Bradley v. .lames (18.53) 13C. B. 825, but n.>t if made 
 after tlu> delit was baried, il). ;"Xewl)ouhl v. Smith (1885) 29 Ch. 1). 882. 
 
 Infants. S. ."> is similiar to 9 Geo. IV. c. 14, s. 5, except that the lattei- 
 Statute does not authorize ratification l.y an agent. 
 
 
WRITTEN PROMISES AND ACKNOWLEDGMENTS. 
 
 309 
 
 Ratification of Contracts Made by Infants. A ratification wliich by the Statutt^ 
 is reciiiirt'd to be in writing is a ratification of a promise or contract whicli if 
 enforceable would result in a personal liability. An obligation entered into 
 during infancy, if incident to property retained or benefits received after 
 majority, may be ratified by acquiescense or inaction without writing, 
 e. g. a contract to take shares in a Company may be ratified by retention of 
 tiie shares after majority and executing a transfer thereof ; Re Constantinople 
 and Alexandria Hotels Co. (IS70) L. R. 5 Ch., 302; a covenant made by an 
 infant on entering the service of an employer not to carry on the same busi- 
 ness is ratified in equity by his continuing in the service for 18 montlis after 
 he became of age, and a new promise may be inferred ; Brown v. Harper (1893) 
 68 L. T. 488 ; Cornwall v. Hawkins (1872) 26 L. T. 607, but giving written 
 notice of intention to leave shortly after majority is not a ratification in writ- 
 ing within the Statute ; Birl-.in v. Forth (1875) 33 L. T. 532. 
 
 A confirma\ion after majority of part of a marriage settlement is confirma- 
 tion of the whole ; Davics v. Davies (1870) L. R.. i) Eq. 468 ; Milner v. Hare- 
 wood (1811) 18 Ves. 277 ; Edwardsv. Carter (1893) A. C. 360. Acceptance of 
 rent after majority is confinr.ition of a lease made during infancy ; Smitli v. 
 Low (1739) I Atk. 489 ; and so would be a mortgage of the property referring 
 to the lease; Story v. Johnston (1837) 2 Y. <fe C. 586. Remaining after 
 majority in possession of lands taken in ex'bange during infancy and after- 
 wards (lisposing thereof is sufficient confirmation of the exchange ; Miller v. 
 Ostrander (1860) 12 Gr. 349 ; .see also Pollock on Contrai ts 5th Ed., 52-73. 
 
 Care nnist be taken i'lso to distinguish the cases where it has been said the 
 infant is liable in equity for falsely representing himself to lie of full age. The 
 expression is only a compendious one whichmust lie interpreted with relerencc 
 to what were the functions of a Court of Etjuity. ^Vn infant who iiad induced 
 trustees to pay money to him on his falre repi(!sentation as to age would not 
 be allowed to plead his infancy as a bar to a release executed by him , Over- 
 ton V. Banister (1844) 3 Ha. 503, and if he had obtained property on such 
 representation, he might be ordered to redeliver it ; Clarke v. Cobley (1789) 2 
 Cox. 173. But the representation does not amount t<i a contract, nor make 
 the infant liable as on a contract, or for a debt, theforc an infant who oljtains 
 a lease by falsely representir.g him.self of age is liable neither on the lease nor 
 for use and occupation ; Lempriere v. Lange (1879) 12 Ch. 1). 675. 
 
 Merely executing a contract, e. g. a mmtgage, does not amount to a misre- 
 presentation of age ; Confederation Life Assn. v. Kinnear (1896) 23 A. R, 497. 
 
w 
 
 CHAPTER 157. 
 
 An Act respecting Master and Servant. 
 Sections S-o. 
 
 c 
 
 Agreements 
 by which 
 workmen,etc. 
 may share in 
 the proiitB of 
 the business. 
 
 r' 
 a: 3 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 MASTER AND SERVANT. 
 
 3. It shall be lawful in any trade, calling, business, or em- 
 ployment, for an agreement to bo entered into between the 
 workman, servant, or other person employed, and the master or 
 employer, by which agreement a defined share in the annual or 
 other net profits or proceeds of the trade or business carried on 
 by such master or employer, may be allotted and paid to such 
 workman, servant or person employed, in lieu of or in addition 
 to his salary, wages, or other remuneration; and such agreement 
 shall not create any relation in the nature of partnership, or 
 any rights or liabilities of co-partners, any rule of law to the 
 contrary notwithstanding; and any person in whose favor such 
 agreement is made, shall have no right to examine into the ac- 
 counts, or interfere in any way in the management or concei-ns 
 of the trade, calling, or business in which he is employed 
 under the said agreement or otherwise ; and any periodical or 
 other statement or return by the employer, of the net profits oi' 
 proceeds of the said trade, calling, business, or employment, on 
 which he declares and appropriates the share of profits payable 
 under the said agreement, shall be final and conclusive between 
 the parties thereto and all persons claiming under them respec- 
 tively, and shall not be impeachable upon any ground whatever. 
 R.S.O. 1887, c. 139, s. 1. 
 
 Certain agree- 4. Every agreement of the nature mentioned in the last 
 thli^'AvT' preceding section shall be deemed to bo within the provisions 
 of this Act, unless it purports to be excepted therefrom, or this 
 may otherwise be inferred. R.S.O. 1887, c. 139, s. 4. 
 
 Verbal as well 5. All agreements or bargains, verbal or written, between 
 
 agreemeiitB masters and journej'men, or skilled labourers, in any trade, 
 
 between mas- calling or craft, or between masters and servants or labourers, 
 
 vant to be' '^^^^ ^^^^ performance of any duties or service of whatever nature, 
 
 binding. shall, whotlior the performance has been entered upon or not, 
 
 bo binding on eaci) party for the due fulfihnent thereof; l)Ut a 
 
 verbal agreement shall not exceed the term of one year. 
 
 R.S.O. 1887, e, 139, s. 5. 
 
 [aio] 
 
MASTER AND SERVANT. 
 
 311 
 
 NOTES. 
 
 Agreements to Share Profits. Tlie only provision in English Legislation at 
 all iii^Hiri iiiafifiu witli s.s. 3 and 4 is s. 2 (3) (I)) of The Partnership Act 1890 
 wiiifh is as follows : — " A contract for the rennnieration of a servant or agent 
 of an^\' person engagefl in a business by a share of the profits of the business 
 shall not of itiel/make tho servant or agent a partner in the business or liable 
 as sucli." 
 
 The sharing of profits and losses was always cogent evidence of a partner- 
 ship, and if it stood alone might l)e considered evidence of a partnership, but 
 those facts niiglit ahvaj's be outweighed by otlier circumstances. 
 
 As between tiie parties themselves an agreement in the terms ai't'.ori/.ed l)y 
 8. 3 would pro1)ably never linve been held to constitute a partnership, see 
 Hesketh v. Hlanchard (1803) 4 East 144 ; Harrington v. Cluucliwaid (1860) 29 
 L..T. Ch. r)21 ; (Jeddes v. Wallace (1S20) 2 Bligh 270 ; Ross v. Parkvns (1875) 
 L.R. 20 E(i. 331 ; Ex parte Tennant (1877) (iCh. 1). 303; Walker v. Hirsch 
 (lS84)27Ch. 1). 4(51. But as against tiiird parties where a servant took a 
 share of the net profits, there was autlioi'ity for the position that he was a 
 partner so as to be liable for the del)ts of the business to its creditors ; l)rv v. 
 Boswell (1808) 1 Camp. 329 ; Heyhoe v. Burge (18.50) 9 C.V,. 431. 
 
 All these ((uestions are now set at rest by the enactment. 
 
 The agreement must be bona fide, as if the Court shouhl come to the conclu- 
 sion that it was a device, and that tho parties were in reality partners, the so- 
 called servant would not escape liability ; Badeley v. Consolidated Bank (188()) 
 34 Ch. I). 53(). 
 
 Before the Statute a servant would have been entitled to" an account ; Har- 
 rington v. Churchward (1800) 29 L..T. Cii. .")21, but tiie Act now takes away 
 that riglit. A servant if dismissed woulil liave had no right to an injunction 
 interfering with the carrying on of the business l)y his employers ; Walker v. 
 Hirtscii (1H84) 27 Ch. 1). 4(il. Wiiere a nierchunt acted as agent for a foreigner 
 in buying furs with an agreement for a share in the profits, but there was a 
 provision for his sharing tho losses to tho extent of !?3,000, the agreement was 
 held to bo excepted from the Statute within tlie meaning of s. 4 ; Rogers v. 
 UUiiian (1879) 27 (ir. 137. An agreement liy a solicitor to share profits of a 
 solicitor's business with an uniiualified pen-on would be illegal and unenforce- 
 able ; Tench v. Roberts (1819) 6 Madd. 145 ; Eo Jackson (1823) 1 B. & C. 270, 
 R..S.(). u. 174 s. 28. 
 
 Account Not Impeachable. Tho Statute throws upon the servant the onus 
 of trusting tlio master alisolutely and perhups his accounts eoulu not be im- 
 peached even for fraud; TuUis v. Jackson (1892) 3 Ch. 441. An action for 
 damages for the fraud might possibly be maintained. 
 
 Agreements for Service. S. 5 has come down from 10 & 11 Vict. c. 23, s. 1 
 and 18 Vict. c. l.SOss. 1,2. 'i'hese provisions wore introductory to sections 
 giving lights againsl tlie workman for deserting the employment whi<4i were 
 re))cali'd by 40 V. c. 3.') (1)). A vcrlinl agreement for more than 1 year is 
 within the 4th section of tho Statute ot Erauds ; Britain v. Ro.ssiter (1879) 11 
 Q.B. I). 123. If the cngagment is for a year tiiere is no presumption that if the 
 service continue.M after th'.! year that it is to continue for another year abso 
 lutoly ; llarnwell V. I'arry' Sound Lumber Co. (1897)24 A. R. 110, sec this 
 ca.so di.seussed and the authorities collected, 34 C.L.J. 587 
 
312 
 
 INTEREST. 
 
 Hi 
 
 CHAPTER 8. 
 
 60-61 Victoria. (Dominion) 
 
 All Act respecting Interest. 
 
 «^. 
 
 
 ^ 
 
 
 
 Cf'; 
 
 
 /' 
 
 Short title. 
 
 V 
 
 When rate of 
 
 "„ 
 
 intereot not 
 
 <'. 
 
 I)er annum 
 
 *»- ' 
 
 more than 6 
 
 *»-■-'— 
 
 per cent, not 
 
 
 recoverable 
 
 
 unless con- 
 
 tract states 
 
 the equiva- 
 
 urtSU . 
 
 lent rate pei 
 
 ci:: 
 
 annum. 
 
 Cr'5 
 
 
 ;:t.J 
 
 Recovery of 
 
 {Assented to 29th June, 1897.) 
 
 HETl MAJESTY, by and with the advice and consent of 
 the Senate and House of Ccnunons of Canada, enact^s as 
 follows : — 
 
 1. This Act may be cited as The Interest Act, 1897. 
 
 3. Whenever any interest is, by the terms of any written or 
 printed contract and whether under seal or not, made payable 
 at a rate or percentage per day, w^eek, month or at any rate 
 or percentage for any period less than a year, no interest 
 exceeding the rate or percentage of six per cent per annum 
 shall be chargeable, payable or recoverable on any part of the 
 principal money unless the contract contains an express state- 
 ment of the yearly rate or percentage of interest to whicli such 
 other rate or peicentage is equivalent. 
 
 3. If any sura is paid on account of any interest not charge- 
 sums paid a\A^., payable or recoverable under the last preceding section, 
 otierwise ^y^(^ gum may be recovered back or deducted from anj' prin- 
 cipal or interest payable under such contract. 
 
 Not to apply 
 to mortgages. 
 
 4. This Act shall not apply to mortgages on real estate. 
 
INTEREST. 
 
 313 
 
 NOTES. 
 
 This is in the nature of paternal legislation and iiitereferes with the freedom 
 of contract. In Linfoot v. Pockett (1895) 2 Cli. 835, a money lender had 
 advertised, " Money lent at 5/. per cent. From 51. to 2000/. Why pay 
 more when a private gentleman desires to grant advances to male or female 
 upon their note of hand alone &c," A bill of sale was given by a borrower 
 " by way of security for tlic jjaj'nient of the sum of 100^ and interest there- 
 on at the rate of Is in the pound per month '", The borrower sought to set 
 aside the bill of sale for fraud but failed, Lindley L. J. said " The adver- 
 tisement was that money c(5ii!d be had for " 5 per cent" but 5 per cent in a 
 money-lender's mind means o per cent per month, and 5 per cent in a bor- 
 rower's mind means 5 ' per cent per amiuni until he finds out what it 
 really means : and, of course, whfyi this planitiif found out what it really 
 meant he did not like it. However that is immaterial, because it was in fact 
 
 60 per cent Although the plaintiff' was foolish enough to be 
 
 attracted by this advertisment he was a man of some intelligence and (juite 
 capable of reading what he signed and as lie chose to sign this document which 
 is perfectly clear and intelligible, his case fails." 
 
 Except in a mortgage of real estate, no written or printed contract for a 
 greater percentage than 6 per cent per annum will now be_ good, unless the 
 percentage per annum is stated. 
 
 A contract for the payment of any stipulated yearly percentage will, how- 
 ever, still be good, R. S. C. c. 127 s. 1, except, 
 
 (1) A pawnbroker may take 2 per cent per month for any ami^, nt up to 
 
 ffeiO, and o cents for every .?4 per month when the sum lent exceeds 
 .•=120. R. S. C. c. 128 ss. 2, .S. 
 
 (2) A chartered bank may take, reserve or exar-t any rate of interest or dis- 
 
 count not exceeding 7 per cent per annum, and may receive and 
 take in atlvance any such rate, but no higher rate of interest shall 
 be recoverable by the bank. 53 Vict. c. 31 s. 80 (D). "The Bank 
 Act." 
 
 (3) Principal money or interest in arrear upon a mortgage of real estate may 
 
 bear interest at the 8a.":ie rate as principal money not in arrear. but 
 not at any greater rate. R. S. C. c. 127 s. .5. 
 
 (•i) Where by a mortgage of real estate the principal money or interest are 
 payable on the sinking fund plan, or any plan under which the 
 payment of principal money and interest are Vjlended, or on any 
 plan which involves an allowance of interest on stipulated repay- 
 ments, no interest whatever is cliargCtable unless the mortgage shews 
 the real rate calculated yearly or half-yearly not in advance. R.S. 
 C. c. 127 s. 3. 
 
 (6) Corporations incorporated before 16th August, 1858, authorized to lend 
 or borrow money are, with certain exceptions, limited to 6 per 
 cent per annum. R. S. C. c. 127 s. 10. 
 
 Interest post diem. After the due date for payment of money if 4iere is no 
 contract relating to the payment of interest after that date, intert;8t will be 
 allowed as damages only ; R. v. <}rand Trunk Ry. Co. (1890) 2 Ex. C. R. 132 ; 
 and the rate will be 6 per cent per annum, R. S. C. c. 127 s. 2. Peoples 
 Loan and Deposit Co. v. (Jrant (1890) 18 S. C. R. 262 ; see also St. John v. 
 Rykert (1884) 10 S. C. R. 278 ; Peck v. Powell (1888) 15 A. R. 138 ; Wilson 
 V. Cami)bell (1879) 8 P. R. l.')4. 
 
 Recovery back of over-payments. But for the provisions of s. 3 a payment of 
 interest at the contract rate would be vohnuary and could not be recovered 
 back or set off against the other monej's pavable under the contract. Kaines 
 v. Stacey (1860)9 C. P. 355 ; .Tarvis v. Clark (1861) 10 C. P. 480; Quinlan v. 
 Gordon (1861) '20 ,,■. Appendix 1. ; Kutton v. Federal Bank (1883) 9 P. R. 
 568. 
 

 
 
 
PART VII. 
 
 Personal Property. 
 
 ill 
 
 (<ii 
 
 [ 315 
 

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 ii 
 
 S: 
 G 
 
 ^\ 
 
 E 
 
 as 
 
 18 
 
 un 
 lat 
 Pr 
 
 ] 
 ord 
 
 aiK 
 
 pai 
 an( 
 one 
 one 
 clo( 
 twe 
 sug 
 one 
 was 
 
EXECUTION. 
 
 317 
 
 OHAPTER 77. 
 
 As amended by U'2 V. c. 7. 
 An Act respecting Execution. 
 
 Shokt title, s. 1. 
 
 Goods exempt from .seizure, ss. 2-7. 
 
 Writ.s against lands and ooods, 
 
 88. 8, 9. 
 
 Renewal of, s. 9, 
 What may be seized undkk ex- 
 ecution AOAIN.ST goods — 
 Stocks in certain companies, 
 
 88. 10-16. 
 Equity of redemption of chattels 
 mortgaged, 8. 17. 
 
 Money and securities, ss. 18-20. 
 
 Security to sheriff, ss. 21, 22. 
 
 Mortgages, ss. 18, 23-28. 
 What may be sold under execu- 
 tion AOAIN.ST LANDS — 
 
 Equity of redemption of lands, 
 ss. 29-32. 
 
 Contingent interests, s. 33. 
 Church pews and sittings, s. 34. 
 Sales again.st executors, s. 35. 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 1. This Act may be cited as " The Execxdion Act." 
 1887, c. 64, s. 1. 
 
 EXEMPTION. 
 
 R. S. O. Short title. 
 
 3. The following chattels shall be exempt from seizure Chattels ex- 
 under any writ, in respect of which this Province has legis- g^^'j.g'^*"" 
 lative authority, issued out of any Court whatever in this 
 Province, namely : 
 
 1. The bed, bedding and bedsteads (including a cradle), in Bedding, 
 ordinary use by the debtor and his family ; 
 
 2. The necessary and ordinary wearing apparel of the debtor Apparel, 
 and his family ; 
 
 3. One cooking stove with pipes and furnishings, one other Furniture, 
 heating stove with pipes, one crane and its appendages, one 
 
 pair of andirons, one set of cooking utensils, one pair of tongs 
 and shovel, one coal scuttle, one lamp, one table, six chairs, 
 one washstand with furnishingc, six towels, one looking glass, 
 one hair brush, one comb, one bureau, one clothes press, one 
 clock, one carpet, one cupboard, one broom, twelve knives, 
 twelve forks, twelve plates, twelve tea cups, twelve saucers, one 
 sugar basin, one milk jug, one tea pot, twelve spoons, two pails, 
 one wjvsh tub, one scrubbing brush, one blacking brush, one 
 wash board, three s?moothing irons, all spinning wheels and 
 
318 
 
 Chap. 77. 
 
 EX ECU! ION. 
 
 Sec. 2. 
 
 Fuel and 
 proviBions. 
 
 Animals. 
 
 i 
 
 Tools. 
 
 r 
 
 s: 
 
 Bees. 
 
 weaving looms in domestic use, one sewing machine and attach- 
 ments in domestic use, tliirty volumes or books, one axe, one 
 saw, one gun, six traps, and such fishing nets and seines as are 
 in coiumon use, the articles in this subdivision enumerated, 
 not exceeding in value the sum of S150 ; 
 
 4. All necessary fuel, meat, fish, flour and vegetables, actually 
 provided for family use, not more than sufficient for the ordin- 
 ary consumption of the debtor and his family for thirty days, 
 and not exceeding in value the sum of S40 ; 
 
 .5. One cow, six sheep, four hogs, and twelve hens, in all 
 not exceeding the value of S75, and food therefor for thirty 
 days, and one dog ; 
 
 6. Tools and implements of or chattels ordinarily used in the 
 debtor's occupation, to the value of 8100 ; but if a specific 
 ai'ticle cliiiiued as exempt be of a value greater than .SlOO, iind 
 there are not other goods sufficient to satisfy the execution, 
 such article may be sold by the sheriff who sliall pay SlOO to 
 the debtor out of the net proceeds, but no sale of such article 
 shall take place unless the amount bid therefor shall exceed 
 the said sum of SlOO and the cost of sale in addition thereto. 
 62 V. c. 7, s. 1. 
 
 7. Bees reared and kept in hives to the extent of fifteen 
 hives. R. S. 0. 1887, c. 64, s. 2. 
 
 ^3 
 
 Debtor may S. The debtor may in lieu of tools and implements of or 
 
 of sale'c^^m-" chattels Ordinarily used in his occupation referred to in 
 
 jjlements,etc., clause 6 of section 2 of this Act, elect to receive the 
 
 m money. pfoceeds of the sale thereof up to $100, in which case the 
 
 officer executing the writ shall pay the net proceeds of such 
 
 sale if the same do not exceed SlOO, or, if the same exceed 
 
 SlOO, shall paj'' that sum to the debtor in satisfaction 
 
 of the debtor's right to exemption under said subdivision 6, 
 
 and the sum to which a debtor shall be entitled hereunder 
 
 shall be exempt from attachment or seizure at the instance 
 
 of a creditor. R. S. O. 1887, c. 64, s. 3. 
 
 Goods ex- 
 empted from 
 seizure after 
 death of the 
 debtor to go 
 to widow and 
 family. 
 
 Right of 
 selection. 
 
 4. The chattels so exempt from seizure as against a debtor 
 shall, after his death, be exempt from the claims of creditors 
 of the deceased, and the widow shall be entitled to retain the 
 exempted goods for the benefit of herself and the family of the 
 debtor, or, if there is no wJdow, the family of the debtor shall 
 be entitled to the exempted goods. R. S. 0. 1887, c. 64, s. 4, 
 part. 
 
 5. The debtor, his widow or family, or, in the case of 
 infants, their guardian, may select out of any larger number 
 the several chattels exempt from seizure. R. S. 0. 1887, c. 64, 
 .S.5. 
 
 
Sec. 11. 
 
 EXECUTION, 
 
 Chap. 77. 
 
 .S19 
 
 4». Nothing herein contained shall exempt any article enu- Exc."i)tion. 
 inerated in subdivisions 3, 4, 5, 6 and 7 of section 2 of this 
 Act from seizure in satisfaction of a debt contracted for the 
 identical article. R. S. O. 1887, c. G4, s. 6. 
 
 7. Notwithstanding anything contained in the preceding <io<)ds liable 
 sections, the various goods and chattels which were prior to cont^nurs*" 
 
 liable for 
 
 the first day of October, 1887, liable to seizure in execution iiebts con- 
 for debt shall, as respects debts which were contracted pi'ior Qgj''*j U?^^"'''' 
 to the said day, remain liable to seizure and sale in exe- 
 cution, provided that the writ of execution under which 
 they are seized has endorsed upon it a certificate signed by 
 the Judge of the Court out of which the writ issues, if a Court 
 of Recoi'd, or where the execution issues out of a Division 
 Court, by the Clerk of the Court, certifying that it is for the 
 recovery of a debt contracted before the date hereinbefore 
 mentioned. R. S. O, 1887, c. 64, s. 7 ; 51 V. c. 11, s. 6. 
 
 WRITS AGAINST LANDS AND (iOODS. 
 
 8. Subject to Rules every writ of execution issuing under any Lands and 
 judgment or order of a Court or Judge for the payment of ^^g^ude'd I'u 
 money, except a writ of execution issued from a Division one writ. 
 Court, shall be issued against both the lands and tenements 
 
 and the goods and chattels of the execution debtor. 57 V. 
 c. 26, s. 1 ; 58 V. c. 14. s 1. 
 
 9. It shall not be necessary to renew from year to year Writs may 
 any writ of execution now in the hands of a sheriff or here- pvery'thr^ee 
 after issued, but all such writs of execution shall remain in years, 
 force for a period of three years, or until satisfied in the mean- 
 time by payment or withdrawal by the party prosecuting the 
 
 same, and every such writ may be renewed from time to time 
 for periods of three years in the same manner as a writ of 
 execution was formerly renewed from year to year. 57 V. 
 c. 26, s. 2 ; 58 V. c. 13, s. 31, part. 
 
 WHAT MAY BE SEIZED UNDER EXECUTION AGAINST GOODS. 
 
 Stocks in certain Companies. 
 
 10. All shares and dividends or any equitable or other right, shares and 
 property, interest or equity of redemption in or in respeei ' *" ' '.'lenj'a ami 
 any shares or dividends in any incorporated bank or otl lutereats 
 incorporated company in Ontario, having transferable jouit therein, 
 stock, shall be held to be personal property, and shall be liable 
 to bona fide creditors for debts, and may be attached, seized 
 and sold under execution in like manner as other personal 
 property. 02 V. c. 7, s. 8 (1). 
 
 1 
 
IMAGE EVALUATION 
 TEST TARGET (Mf-S) 
 
 1.0 
 
 I.! 
 
 i^ Em 
 
 Ml Ut 
 
 tii Km 
 
 
 2.5 
 
 12.2 
 
 2.0 
 
 1.8 
 
 11-25 11.4 ii.6 
 
 V. 
 
 ^ 
 
 /A 
 
 ^«> 
 
 ^^ Jh 
 
 > 
 
 ^i^ 
 ^ 
 
 o 
 
 ^^ 
 
 ■ ^ ^ ^ >'•►» 
 
 / 
 
 # 
 
 Photographic 
 
 Sciences 
 
 Coriwration 
 
 23 WIST MAIN STRBET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 872-4503 
 
k^. 
 
 &•- 
 
820 
 
 Chap. 77. 
 
 EXECUTION. 
 
 Sec. 11. 
 
 
 Copy of execu- 
 tion to be 
 wrved on the 
 company with 
 notice of 
 seizure. 
 
 Stock not to 
 be transferred 
 while under 
 seizure ; and 
 sale under 
 Keizure to in- 
 clude all divi- 
 dends, etc. 
 
 Provisions for 
 tiie case of the 
 Company hav- 
 ing more than 
 one place 
 where service 
 of process may 
 be legally 
 made upon 
 them or trans- 
 
 (/,. 
 
 fers notified. 
 
 '^' 
 
 
 ^ 
 
 
 
 
 ^- 
 
 
 C" 
 
 
 
 
 Shares to be 
 
 9^> 
 
 personal i)ro- 
 
 perty at the 
 
 ,ji«^-" 
 
 place where 
 
 
 notice of 
 
 
 seizure served 
 
 
 Mode of pro- 
 
 
 ceeding after 
 
 
 sale. 
 
 Having of all 
 
 other 
 
 r.'Uiedies. 
 
 1 I . The sheriff or other officer to whom an execution is direct- 
 ed, on being informed on behalf of the plaintiff that the defend- 
 ant has such stock, and on being required to seize the same, shall 
 forthwith serve a copy of the execution on the company with a 
 notice that all the snares which the defendant has in the stock 
 of tTie company are seized accordingly ; and from the time of 
 service no transfer of the stock by the defendant shall be valid, 
 unless and until tl;e seizure has been discharged ; and every 
 seizure, and sale made under the same, shall include all divi- 
 dends, premiums, bonuses, or other pecuniary profits upon the 
 shares seized, and the same shall not after notice as aforesaid, 
 be paid by the company to any one, except the person to whom 
 the shares have been sold by the officer, unless and until the 
 seizure is discharged, on pain of paying the same twice. R. S. 0. 
 1887, c. 34, s. 10. 
 
 1 /J. If the company has more than one place where service 
 of process may be made upon them, and there is some place 
 where transfers of stock may be notified to and entered by 
 the company so as to be valid as regards the company, or 
 where dividend", or profits as aforesaid on stock may be 
 paid other than the place where service of such notice has been 
 made, the notice shall not affect any transfer or payment of 
 dividends or profits duly made and entered at any such other 
 place, so as to subject the company to pay twice, or to affect 
 the rights of any hona fide purchaser, until after the expira- 
 tion of a period from the time of service sufficient for the 
 transmission of notice of service by post from the place 
 where it has been made to such other place, which notice it 
 shall be the duty of the company to transmit by poso. R. S. 0. 
 1887, c. 64, s. 11. 
 
 13. The shares in the said ,^tock shall be held to be per- 
 sonal property, found in the place where notice of the seizure 
 thereof is .served as aforesaid. R. S. 0. 1887, c. 64, s. 12. 
 
 1 4. Where any such share *« sold under an execution, the offi- 
 cer .shall, within ten days after sale, serve upon the company at 
 some place where service of process may be made, an jittested 
 copy of the writ of execution, with his certificate endorsed there- 
 on, certifying the naiae of the purchaser who .shall thereafter be 
 the holder of the share, and who shall have the same riglits, 
 and bo under the same ol)ligations as if he had duly par- 
 chased the share from the proprietor thereof ; and the proper 
 officer of the company shall enter such sale as a transfer 
 in the manner by law provided. R. S. O. 1887, c. 64, s. 13. 
 
 1 5. Nothing in this Act shall be construed to impair the 
 effect of any remedy which the plaintiff might, without this 
 Act, havj had against any shai'es of such stock as aforesaid, by 
 attachment or otherwise, and the provisions of the next pre- 
 ceding four sections shall apply to such remedy in .so far as they 
 can be applied thereto. R. S. O. 1887, c. 64, s. 14. 
 
Sec. 18. 
 
 EXECUTION. 
 
 Chap. 77. 
 
 321 
 
 I a. All corporations, established for the purpose of trade or What shall be 
 protit, or for the construction of any work, or for any purpose j^.^^J^j J,"^^!'" 
 frvOin which revenue is intended to be derived, shall be deemed i.anies. 
 incorporated companies for the purpose of the next preceding 
 six .sections of this Act, though they are not called companies 
 in the Act or chaiier incorporating them. R. S. O. 1887, c. G4, 
 s. 15. 
 
 Equity of redemption in chattels saleable. 
 
 II. — (1) Under an execution against goods, the sheriff Ef|\iit.al.le 
 or other officer to whom the same is directed may seize "ifj||'^ig" 
 any c([uitable or other property right, interest or eijuity of 
 redempo." ^ ; \v or in respect of any goods or chattels, including 
 leaseho a '•;•.,. ts ni any lands of the party against whom 
 the writ has i. aed, and such sale shall convey whatevei* 
 equitable or other right, property, interest or equit}^ of 
 redemption the last mentioned party had or was cntit' _d to 
 in or in respect of the goods and chattels at the time of the 
 seizure. 62 v^. c. 7, s. 8 (2). 
 
 (2) The words "gootls and chattels" in this section shall 
 include .shares and dividends of stockholders in any incorpor- 
 ated bank or other incorporated company in Ontario having 
 transferable joint stock. And in the case of an ecjuitable or 
 other right, property interest or etjuity of redeinption in or in 
 respect of any shares the procedure for seizure and sale shall 
 be the .same as hereinbefore provided in the case of shares and 
 dividends, and the same shall be held to be personal property 
 found in the place where notice of the seizure thereof is served 
 ns aforesaid. 58 V. c. 13, s..32 pan ; 62 V. c. 7, s. 8 (3). 
 
 Money and Securities. 
 
 1 8. The sheriff or other officer having the execution of a sheriff may 
 writ against goods sued out of the High Court, or out of a sf'^e money 
 County Court, shall seize any money or bank-notes (including for mom-y. 
 any surplus of a former execution against the debtor), and any 
 cheques, bills of exchange, promissory notes, bonds, moi'tgages, 
 specialties, or other securities for money, belonging to the 
 person against whose effects the writ of execution has issued, j^^^ g^^^ ^ 
 and subject to the provisions of The Creditors' Relief Act, 7S. 
 shall pay or deliver to the pai'ty who sued out the execu- j^io„gy seized 
 tion, the money or bank-notes so seized, or a sufficient part to be paid over 
 thereof, and shall hold such cheques, bills of exchange, *" ^'^^'^^"'■'"" 
 promissory notes, bonds, specialties or other securities for 
 money, as security for the amount by the writ and endorse- 
 ment thereon directed to be levied, or so much thereof as 
 has not been otherwise levied or raised, and the sheriff or sheriff to sue 
 other officer may sue in his own name for the recovery of for Hecurities. 
 the .sums secured thereby, when the time of payment thereof 
 has arrived. R. S. O. 1887, c. C4, s. 17 . 
 
 [As to proceedinffs binder Division Court Executions, see 
 also Gap. dO, sees. hS-iJfl.] 
 v. 
 
 Ill 
 
 m. 
 
322 
 
 Chap. 77. 
 
 EXECUTION. 
 
 Sec. 19. 
 
 
 r 
 
 
 3 . 1- 
 
 fi*Teriff '*^- ''''^'^ payment to the sheritf or other officer by the 
 
 to be valid. pfti'ty liable on such cheque, bill of exchange, promissory 
 note, bond, specialty or other security, with or without suit, or 
 the recoveiy and levying execution against the party so liable, 
 shall discharge him to the extent of such payment or of such 
 rocoverv and levy in execution (as the case may be), from his 
 liability thereon R. S. O. 1887, c. 64, s. 18. 
 
 Sheriff to pay *^0. Subject to the provisions of The Creditors' Relief Act, 
 
 over proceeds, ^j^^, ^j^g^.j^- ^^. ^^^.j^g^. q^^^^. ^i^j^jj ^^^ ^^^^, ^^ ^j^^ p^^j.^^, ^^^]^^ 
 
 Rev. Stat. sued out the writ the money so recovered, or a sufficient 
 "• '^' sum to discharge the amount by the writ directed to be levied, 
 
 and if, after satisfaction of the amount together with 
 Siiriihis to be sheriff's poundage and expenses, a surplus remains in the 
 execution hauds of the sheriff or other officer, the same shall be paid to 
 diebtor. the party against whom the writ issued. R. S. 0. 1887, c 64, 
 
 s. 19. 
 
 Security to Sheriffs, etc. 
 
 Shsriffnot ^|. No sheriff or other officer shall be bound to sue any 
 
 until indemni- P"'^"''}" li^-ble upon such cheque, bill of exchange, promissory 
 tied. note, bond, specialty or other security, unless the party who 
 
 sued out the execution enters into a bond with^wo sufficient 
 sureties to indenuiify the sheriff or officer from all costs and 
 expenses to be incurred in the prosecution of the action, or to 
 which he may become liable in consequence thereof ; and the 
 expenses of the bond may be deducted out of any money 
 recovered in the action. R. S. 0. 1887, c. 64, s. 20. 
 
 Instructions '■J ■■J. — (1) A sheriff shall not without written instructions and 
 t"'*h"*^ff""''^ a Ijond, as hereinafter mentioned, be obliged to seize propei'ty 
 seizing goods which is in the possession of a third party claiming the same, 
 claimed by and not in the possession of the debtor against whose property 
 the writ or other process was issued, 
 
 (2) The written instructions to be delivered to the sheriff 
 shall specify the goods and chattels in such a way as to enable 
 the sheriff to identify the same as the goods and chattels 
 intended. 
 
 (3) The bond is to be a bond of indemnity to the sheriff and 
 his assigns, with two sufficient siu-eties, who are to justify in 
 double the supposed value of the projjcrty, such supposed 
 value to he stated in an affidavit by the creditor or his solicitor 
 or agent and attached to the bond. 
 
 (4) The bond is to be assignable to the claimant, and is to 
 be conditioned that the parties executing the same will be 
 liable for the costs and expenses which the sheriCt' or claimant 
 may he put to by the seizure or subsequent dealings with 
 the pro|ierty, including the interpleader suit (if any), and 
 which he does not recover from other persons who ought to 
 pay the same. 
 
 third parties. 
 
Sec. 23 (3). 
 
 EXECUTION. 
 
 Chap. 77. 
 
 323 
 
 (5) In case the sheriff is not satisfied with the bond offered 
 the matter in difference is to be determined and disposed of by 
 a Judge. 
 
 (6) Damages claimable shall be the same as before the Damages, 
 passing of this Act. 
 
 (7) Nothing in this section shall be construed to limit the Right of 
 right of the sheriff' to apply for relief by Interpleader under ?heria to 
 the present law and the practice of the Courts. 56 V. c. 5, s. 11. n° t^atfected' 
 
 'Hi. — (1) The word " plaintiff"" or the word " creditor ' in this interpretation 
 .section includes any person named in a writ of execution as the " •^'"'j"^^*.'! 
 person for whom the levy is to be made. The word "defend- "defendant" 
 ant" or the word "debtor" includes any person of whose "''«*'''<"^' 
 property the money is directed to be levied. 56 V. c. 5, s. 1. 
 
 (2) In case a sheriff to whom a writ of execution is addressed Taking money 
 is informed on behalf of the plaintiff', that the defendant is a i^ortgage^ 
 mortgagee of land and that the mortgage is registered, or that under execu- 
 the defendant is entitled to receive a sum of money charged ' 
 
 upon lands by virtue of any registei-ed instrument, and in case 
 the sheriff" is required on behalf of the plaintiff to seize the 
 mortgage or charge, and is furnished in writing with the infor- 
 mation necessary to enable him to give the notice hereinafter 
 mentioned, he shall, upon payment of the proper fees, forth- 
 with deliver or transmit to the Registrar or Master of Titles 
 in whose office the mortgage or other instrument is registered, 
 a notice in the form or to the effect following : 
 
 To the Registrar of (w as th« case may he) Form of 
 
 By virtue of a .vrit of fi^ri facias to mo directed and issued out of the sheriff's notice 
 High Court of Justice at (or the County Court of *" registrar, 
 
 the County of ), wliereby I am conunanded to levy against the 
 
 goods and chattels of .4. B. the sum of S , tor debt, and 8 for costs 
 lately adjudged to be paid by the said A. B. to G. D., besides 
 the costs of executions, 1 have this day seized and taken in execution 
 all the estate, right, title and interest of the said A. B. in a certain niort- 
 <^age made by A'. Y. to the said A. B., and which bears date on the 
 day of , and was registered in the registry ofhco for the 
 
 County of . on the day of AD., , as number 
 
 (or the said mortgage or other instrument may be described in ani/ other 
 manner by reference to dates, parties and the land covered as will cnabh' the 
 notice to be recorded tipon the lands thi-rein described) and in the moneys 
 secured thereby, and this notice is given for the purpose of binding the 
 interests of the siiid .1. B. under section.s 23 to 28 of The Execution Act. 
 Dated this day of 
 
 (Signed) M. N. 
 
 Sheriff of the County of 
 
 50 V. c. 5, s. 2 ; 60 V. c. 14, s. 90. 
 
 (3) Upon registration of the said notice, the interest of the Kffootof reg- 
 execution debtor in the mortgage or other instrument, and in shedff'8'n<)tice 
 the lands therein described, and in the moneys thereby secured to registrar, 
 and in all covenaJits and stipulations for the securing of pay- 
 ment thereof, shall be bound by tlie execution, and such regis- 
 tration shall l)e deemed to be notice of the said execution and 
 
324 
 
 Chap. 77. 
 
 EXECUTION, 
 
 Sec. 23 (3). 
 
 seizure to all persons who may thereafter in any way acquire 
 any interest in the mortgage, land.", moneys, or covenants ; 
 and the rights of the sheriff and execution creditor shall have 
 priority over the rights of all such persons, subject, as regards 
 the mortgagor or person liable to pay the money secured by 
 the mortgage or charge, to the next section of this Act. 
 56 V. c. 5, s. 3. 
 
 Notice to 
 mortgagor. 
 
 
 
 r 
 
 
 i 
 
 Mode of 
 effecting 
 pervice. 
 
 Paymt'iits 
 made after 
 notice. 
 
 24. — (1) A notice similar to the notice mentioned in the 
 next preceding section or containing the like information shall 
 also be served upon the mortgagor or upon the person who is 
 liable to pay the moneys secured by the registered instrument ; 
 and upon such service the person served shall pay to the sheriff" 
 all moneys payable or which may become payable to the exe- 
 cution debtor. i 
 
 (2) Service of such notice may be made personally, or by 
 leaving the .same at the dwelling-house of the person to be 
 served with a grown up person dwelling there, or by regis- 
 tered letter to the proper address of the person to be served. 
 
 (3) Any payment made after service of the notice or after 
 actual knowledge of the seizure .shall be void as against the 
 sheriff" and execution creditor. .56 V. c. 5, s. 4. 
 
 Sheriff enforc- }{5. Jn addition to the remedies herein provided, the sheriff 
 mg moi gagj. ^^^^^ bring an action on such mortgage or other instrument 
 for the sale or foreclosure of the lands covered by the mort- 
 gage or other instrument, and shall be entitled to a bond of 
 indemnity as in the cases provided for in section 21. 56 V. c 5, 
 S.6. 
 
 f tfn^ °gid '^^' Upon a writ of execution, notice whereof is registered 
 
 of execution Under section 23, expiring or being satisfied, set aside or with- 
 
 after registra- drawn, a certificate of such fact by the sheriff" or the execution 
 
 ' creditor, or the order to set aside, as the case may be, may be 
 
 registered and thereupon such seizure shall be vacated and 
 
 deemed at an end. 56 V. c. 5, s. 6. 
 
 Verification of JJT. The order of Court or the certificate of the sheriff" shall 
 certificates ^^^ require verification. The certificate of the execution creditor 
 shall be verified by the oath of a subscribing witness as in the 
 case of other instruments aff'ecting lands. 56 V. c. 5, s. 7. 
 
 Fees of regis- 28. For the registration of any notice under section 23, 
 
 sheriff or of a Certificate under section 26, the registrar or master shall 
 
 be entitled to a fee of 50 cents ; and for evei-y notice of seizure 
 
 under section 23 of this Act, the sheriff' shall be entitled to a 
 
 fee of $1. 56 V. c. 5, S.8. 
 
Sec. 31. 
 
 EXECUTION. 
 
 Chap. 77. 
 
 325 
 
 WHAT MAY BE SOLD UNDER EXECUTION AGAINST LANDS. 
 
 Equity of Redemption. 
 
 20. Wherever the word " mortgagor " occurs in the next interpreta- 
 succeeding three sectioiis, it shall be read and construed as it" the *>°"' 
 worcis "his heirs, executors, administrators or assigns, or per- 
 son having the equity of redemption," ware inserted immediately 
 after the word " mortgagor." R. S. O. 1887, c. 64, s. 21. 
 
 30.— (1) The shei-iff or other officer to whom a writ of The interest of 
 execution against the lands and tenements of a mortgagor fnknd^'*'''"^ 
 of real estate is directed, may seize, sell and convey all the mortgaged 
 interest of the mortgagor in the mortgaged lands and tene- J^'^execution. 
 ments. 
 
 (2) The equity of redemption in* a freehold mortgage of 
 real estate shall be saleable under an execution against the 
 lands and tenements of the oa\ aer of the equity of redemption 
 in his lifetime, or in the hands of his executors or adminis- 
 trators after his deaoh, subject to the mortgage, in the same 
 manner as lands and tenements can now be sold under an 
 execution. R. S. O. 1887, c. 64, s. 22. 
 
 ;5 1 . The effec'f' of the seizure or taking in execution, sale Effect of sale, 
 and conveyance, of mortgaged lands and tenements, shall 
 be to vest in the purchaser, his heirs and assigns, all the 
 interest of the mortgagor therein at the time the writ was 
 placed in the hands of the sheriff or other officer to whom 
 the same is directed, as well as at the time of the sale, 
 and to vest in the purchaser, his heirs and assigns, the 
 same rights as the mortyaoor would have had if the sale 
 had not taken place ; and the purchaser, his heirs or assigns, 
 may pay, remove or satisfy any mortgage, charge or lien which 
 at the time of the sale existed upon the lands or tenements 
 so sold, in like manner as the mortgagor might have done ; and 
 thereupon the purchaser, his heirs and assigns, shall acquire the 
 same estate, right and title as the mortgagor would have 
 acquired in case the payment, removal or satisfaction had been 
 effiicted by the mortgagor ; and on payment of the mortgage 
 money to the mortgagee by the purchaser, his heirs or assigns, 
 the mortgagee, his heirs or assigns, shall, if required, give to 
 the purchaser, his heirs or assigns, at his or their charge, a 
 certificate of payment or satisfaction of the mortgage, which 
 certificate may be in the following form, that is to say : 
 
 To the Registrar of the County of 
 
 I. A. B.,oi , do certify that C. D., of 
 
 wh() has become the purchaser of the interest of E. F. , of 
 has satisfied all money due upon a certain mortgage made by tlie said 
 E. F. to me, bearing date the day of 18 
 
 and registered at of the clock in the forenoon («» the case 
 
326 
 
 Chap. 77. 
 
 EXECUTION. 
 
 Sec. 32. 
 
 
 1 c^ 
 
 /",..• 
 
 1: 
 
 % 
 
 A 
 
 •*«<, 
 
 
 
 
 1?. 
 
 
 
 
 
 n 
 
 Mortg.agee 
 may Ix'come 
 imrcliaser at 
 shcriffg' Hale 
 
 mai/ 6c) of the daj' of , in the same year (or "s 
 
 tht Cftue maij he), and that such niort^'aife is therotbre discharged. 
 As witness my hand, this day of , 18 
 
 (Signed) .4. B. 
 
 o.H.:^ ; } W'*— 
 
 A'^u such certiticate shall be of the like eti'ect, and shall he 
 acted upon by registrars and others to the same extent as if 
 the .same had been ffiven to the mortgaofor. R. S. 0. 18S7, 
 c. 04, s. 23. 
 
 IVi. A mortgagee of lands and tenements so sold, or the 
 heirs or assigns of the mortgagee (being or not being plaintiff 
 or defendant in the judgment whereon the writ of execution 
 under which the .sale tallies place has issued), may be the pur- 
 chaser at the sale, and shall acquire the same estate, interest 
 and rights thereby as any other purchaser ; but in the event 
 of the mortgagee becoming the purchaser, he shall give to the 
 mort<iagor a release of the mortgajje debt ; and if another 
 perron becomes the purchaser, and if the mortgagee enforces 
 payment of the mortgage debt against the mortgagor, then 
 the purchaser .shall repay the debt and interest to the mort- 
 gagor, and in default of payment thereof within one month 
 after demand, the mortgagor may recover the debt and interest 
 from the purchascsr, and shall have a chargii therefor upon the 
 mortgaged lands. - ~ - 
 
 R. S. 0. 1887, c. 64, s. 24. 
 Contingent Interests. 
 
 Any interest 3JJ. — (1) Any estate, right, title or interest in lands which, 
 which may be y^^er .section 8 of The Act respectinn the Transfer of Real 
 under Rev. ' Property, may he conveyed or assigned by any person, or over 
 ^*8'"t° b *"*' ^'l"ch he has any disposing power which he may, without the 
 liable to B.ssent of any other person, exercise for his own benefit, shall 
 
 execution. be liable to seizure and sale under execution against such person, 
 in like manner and on like conditions as lands are by law 
 liable to seizure and sale under execution, and the sheriff .sell- 
 ing the same maj' convey and assign the same to the purchaser 
 in the same manner and with the same eflfect as the person 
 might himself have done. 
 
 Except incho- (2) The right of a married woman to dower shall not 
 ate right of ^g deemed seizable or saleable under execution before the 
 '''" death of her hu.sband. R. S. O. 1887, c. 64, s. 25. 
 
 CHURCH PEWS AND SITTINGS. 
 
 34.- 
 
 Interest in i**. — (1) The interest of anj'^ person lawfully derived by 
 
 pew or Bitting (Jee(j_ lease or license in writing from the wardens or other 
 in execution authoi'ities of any church in a pew or sitting in such church, if 
 and gold. such interest is lawfully assignable by the holder thereof, may 
 
 be sold under judgment and execution at the suit of the 
 
.« 
 
 Sec. 35. 
 
 EXECUTION. 
 
 Chap. 77, 
 
 327 
 
 said churchwardens or trustees of such church for arrears of 
 any rent or otlier char<,'e to which such sitting or pew is sub- 
 ject, or which the holder thereof may liave agreed to pay or 
 for wliich he may be lawfully liable, or at the suit of any 
 creditor of such holder, atid the churchwardens or othci- tru.s- 
 tees of any such church may become purchasers at such sale 
 uJi behalf of the church, and may relet or .sell the right so 
 acquired. 
 
 (2) The sheriff may execute a deed to the purchaser of the iv. i. 
 interest so sold under execution, and such deed sliall be efiec- 
 tual to the purchaser ; and the churchwardens or trustees shall, 
 
 on production of such deed, give effect to the same to the 
 extent of the interest so sold, upon payment of any arrears of 
 rent or charges then due. 
 
 (3) Such .sale .shall be subject to any coiitinuing rent or Subject t<i 
 charge on such pew or sitting previously stipulated or imposed. ''"°'^' ^*°- 
 and shall not prejudice the right of the vestry or church- 
 wardens or congregation or trustees to impose increased rent 
 
 or charges on such pew or sitting pursuant to The Church 3 V. c. 74 
 Te'inporalities A ct, or any other law or custom. 60 V. c. 18, s. 1. 
 
 % 
 
 n 
 
 l\ 
 
 SALES AGAINST EXECUTORS. 
 
 35. The title and interest of a testator or intestate in real Intereatinreal 
 estate may be seized and sold under a judgment and execu- sei'zable'ona 
 tion I'ecovered by a creditor of the testator or intestate, judgment 
 auainst his executor or administrator, in the same m:inner "gwnst.an 
 and under the same process that the same could be sold under 
 a judgment and execution against the deceased, if living. 
 11. S. O. 1887, c. 64, .s. 26 ; c. 110, s. 14. 
 
 '?■ 
 
11 
 
 328 
 
 EXECUTION. 
 
 NOTES. 
 
 f 
 
 
 
 i 
 
 
 Exemptions. Kxi'iii|)ti<iiis iiiny 1)0 doalt with l>y a duldor hh lii^ pleases; he 
 may nuirtjiage nr ^<l•ll iheiii and a jmreliasrr- will oidaiii agdod title as against 
 an execution i redit.ir ; Field v. Hart (IS!).")) 22 A.R. 44!). If they are de- 
 stroyed l)y tire any insiininee nionej' payal)le in respeet thereof would l)e exenij)t 
 from garnishment ; Osier v. Mutter (IHD'J) 19 A.R. !)4. It is not a fraudulent 
 prefeienee for the delitor to iiand over exemptions to a ereilitor ; Temper- 
 ance Insurance Co. v. Coomlie (1892) 28 (I.L.J. 8S. If the sheritl' sells exemp- 
 tions the proceeds niav he recovered from him by the debtor or other person 
 entitled ; Michie v. Reynohls (18().j) 24 U.C.R. 303. 
 
 Wearing Apparel. AVearing ajiparcl consists of that which is worn or made 
 to be worn. Cloth actually appropriated foi' the purpo.se of being made into 
 wearing apparel has l)een heht to fall within the exemption ; Richardson v. 
 Huswell (184,5) 10 Mete. (Mass.)")07; -see Astor v. Merrett (1883)111 U.S. 
 202, where "wearing apparel owned l)y the passenger in a con<lition to bo 
 worn at once without further manufacture," was held to be wearing apparel 
 within the custom laws. 
 
 Implements of Trade. A music teacher's piano is an implement of trade ; 
 Amend v. Mur{)hy (1873) tii) 111. 3.38, so is a hor.se ; Davidson v. Reynolds {18()5) 
 16 C.P. 140; McMartin V. Hurlbert (1877) 2 A.R. 140. When t lie del )tor 
 changes his occupation for another in which his tools or im))lements are not 
 ordinarily used they cease to be exemi)t ; Wright v. Holliiigshead (1896) 23 A. 
 R. 1. If a si)ecitic article is worth more than $100 the (lebtor must receive 
 •SlOO in cash under the amendment of 1809. 
 
 Interpleader. AVheii ohe exemptions are claimed by tlie party against whom 
 the proce.'is issued, the sheritl' acts at his own peril in granting or refusing the 
 exemption. The Court has no jui'isdiction to protect the sheriff bv inter- 
 pleader ; Re (i(mhl v. Hope (1893) 20 A.R. 347; C.R. 1103(b). Materials 
 brought upon lands for any of the pin-poses enumerated in s. 4 of The 
 Mechanics" and Wage Karners" Lien Act, R.S.O. c. lo3, aio not subject to 
 execution to enforce any debt (other than for the purchase thereof) due by the 
 person furnishing the .same ; see R.S.O, c. 153, s. 16 (3). 
 
 Seizure of Stock. The re(iuirements of the Statute as to service of a copy of 
 the writ on the Coni,)any must be strictly observed, otherwise a mandamus to 
 register a purcha.ser as a shaieholder will be refused ; (ioodwin v. Ottawa and 
 I'rescott Ry. Co. (1862) 22 U.C.R. 186 ; but a demand for transfer served 
 upon the secretary and treasurer of the Company will be sutticient without 
 service uixni the President ; Re Goodwin v. Ottawa and Prescott Ry. Co. 
 (1863) '.3C.P. 2i>4. • 
 
 Shares in a Building Society ; Robin.son v. (Jrange (IS.'iO) 18 U.C.R. 260, or 
 a Harbour Company; Brock v. Ruttaii (I8")0), 1 C.P. 218, are subject to 
 seizure under the Act. Shares standing in the name of the debtor in a repre- 
 sentative cajiacity are not such as a sheritl' is bound to .seize on an execution 
 against him per.sonally, although alleged to belong to the debtor beneticially ; 
 Robinson v. tirange (LS.'jO) 18 U.C.R. 260. 
 
 In the absence of fraud or collusion a purchaser at sheriff's sale who pays 
 the purchi'se tnoney acipiires a good title to all the shares sold, although more 
 may have been sold than would have been necessary to satisfy the execution ; 
 Connecticut and Passunipsic R. Ry. Co. v. Morris (1887) 14 S.C.R. 318. 
 
 It is only stock of an " incorporated btiiik or other incorpoi'ated company ;'/( 
 Oiiliirio which is subject to seizure. It is un.settled whether this includes all 
 corporations doing business or upon whom process may be served in Ontario, 
 or only such as have their head othce here, or such as have an otlice in Ontario 
 where stock may be transferred. Where stock in a bank having its head 
 otfice in 1 oroiito was sold under an execution in Montreal, the sale was held, 
 although the point under discussion was not argued, to vest the property in 
 the purchaser, notice of the seizure having been validly served on the agency 
 of the bank in Montreal ; Re Ontario Bank (1879) 44 U.C.R. 247. In Niekle 
 v. Douglas (1874)3") U.C.R. 126, 37 U.C.R. 51, it was ([uestioned whether 
 
EXECUTION. 
 
 829 
 
 stock ill tlu' Mi'ii-lmnts' Bank of Caiindn, liiiviiig itx licail iitKce in Moiiticnl, 
 could 1)L' sold uiiilcr an execution issued in (tritaiio against a resident of 
 Kingst(jn " nuTcly liecause it might, if tlie diieitors uhoae, lie nuide tiansfei- 
 aWe at 11 l)i'an(fli olfico in Ontario." 
 
 Tile jiroceduie to l)e adopted on a [)Ui<iiase under execution, of .slinrcK in a 
 chartered liank is prescriljed liy the Hank Act {53 Vict. c. 31), s. 38. 
 
 Equitable Interests in Chattels. The words " inchulinc leasehold interests 
 in any lands " were intripdiued in 1877 to reniuve the (loul)ts suggested in 
 arguiiient in (!oold v. Rich ( 1S7'2) 1 Cli. Clianil). S7. -Vii eiiuity of redeuiiition 
 must ill! sold as a whole — an eijuity of ledemiitioii in part of tlie ))ro|ierty 
 covered hy the mortgage can neither he seized or sold ; (ioold v. Hicli (1H72) 4 
 Ch. ChamI). 87. The e(|iiity of redeiiilition couhl not lie sold under an execu- 
 tion against the peisoiial representatives of a mortgagor ; L<iwell v. Hank of 
 Upper Canada (lH(i3) 1(1 (ir. .")7. 
 
 Upon a sale of the ccjuity of redemption the .sheriff' cannot sell the goods 
 themselves, liut can give the purcliaser only the right to stnnd in tiie position 
 of the mortgagor ; S(iuair v. Fortune (1S.")9) 18 U. C. R. o-i.'. It was said in 
 Smith V. (.'oliourg and Peterlxirough Railway Co. (185i)l .'i ]'. R. 113, that the 
 shei ifi' might take the goods out of the jxissession of the mortgagee for the 
 pur])ose of exhibiting them ujion the sale, liut in Watson v. Hendeison (1876) 
 2.^ C.P. 5H2, .Adam Wilson, J., said: " Tiie eijuity of redenijition in goods 
 may lie seized while the (lel)tor is in jiossession liy an actual taking of the 
 goods. Where the debtor is not in jiossession, but the mortgagee is so, by 
 virtue of his title, the sheritf may do what is eiiuivalent to a seizure just as he 
 proceeds when he seizes liank or otlier stocks of the delitor." In May v. 
 .Standard Fire Ins. Co. (1879) .30 C. 1*. ."il, M, tlie sami! learned Judge, then, 
 Wilson C..I. said: "The mortgagor and execution <lebtor was in actual pos- 
 se.'i.sion at the time of tiie seizure, and 1 sec no objection to the .sliei ill' seizing 
 them ill inr/iorr and taking theiii out of the debtor's possession, if need lie, so 
 long as he is not forIii<lden doing so by the mortgagee, if the mortgagee is 
 entitled to immeiliate pos.session of the goods."' 
 
 If the goods should be in diU'erent counties tiie ec[uitv of reilemption could 
 not be sold ; Heward v. Wolfende-i (18(i8) 14 (Jr. 188. 
 
 Sub-sec, 2 of s. 17, was introduced to authorize tlie sale of an e((uity of 
 redemption in shares of stock, it having been said in Morton v. Cowan (1894) 
 25 O. R. 529, tliat such an eijuitv of redemption could not lie sold under exe- 
 cution. It had previously been held in Ross v. Simpson (1876) 23 (ir. 552, 
 that such an cipiity of reilomption was salealile. 
 
 The iirovisioiib of s. 32 have been lield to limit tlie right ti sell an ecjuity of 
 redemption in freehoid lands to cases where there was o.dj' one mortgage. 
 But there being no similar provisions as to sales of an cciuity of redemiition in 
 chattels it has been held that s. 17 is wide enougli to cover the sale of tlie 
 mortgagor's interest in chattels, though subject to more than oip' m<irtgage ; 
 Ross V." Simpson (1876) 23 (Jr. 5,>2 ; and in Nlcl)o;,ald v. Reynolds (18(i8) 14 
 (4r. 691, it was held that a purchaser of the eiiuity of reeemption in a lease- 
 hold suhject to two mortgages could not on paying ort' tlie first mortgage keep 
 it alive as against a second mortgagee. 
 
 It will be noticed that the sheritl'can sell only the mortgagor's interest " at 
 the time of the seizure." It may bo that a lioim lid': sale of the ecpiity of 
 redemption after the delivery of the writ to the sheriff, but before seizure, 
 would defeat the execution ; see Pegge v. .Metcalfe (1857^ 3 U.C.L.J. 148; 5 
 Gr. 628 ; Harrison's C.L.P. Act, 1870, p. 366. 
 
 Money. The origin of s. 18 is Knglish Act 1 & 2 Vict. c. 110 s. 12. When 
 money is seized it is in the same position as the pioceeds of goods sold ; Col- 
 lingridge V. Paxton (1852) 11 C.B. 683. Under the Knglish Section moneys 
 in the sheriff's hands, the surplus of a former execution, could not be seized ; 
 Hanisou v. Payiiter (1840) 6 M. & W. 387. 
 
 ^loney in the sherifFs hands, the proceeds of an execution issued at the suit 
 of the debtor, cannot be seized where it has not been set apart and ear- 
 marked speciticallv as the property of the debtor; Wood v. Wood (1843)4 
 Q.B. .397 ; CoUingridge v. Paxton (18.52) 11 C.H. 683. Money in Court can- 
 not be seized ; France v. Campbell (1842) 6 .Tur. 105 ; nor money in the 
 hands of an auctioneer ; Rrown v. Perrott (1841) 4 Beav., 685; nor other 
 money held to the use of the debtor ; Robinson v. Peace (1838) 7 Dowl. P. C. 
 93. Money deposited by a party privileged from arrest to secure his release 
 
S.'JO 
 
 EXECUTIOX. 
 
 
 r 
 f'.. 
 
 I 
 
 by the sherilF ulio had taken liini on a ca. sa., (.•iiniiot In- rctniniMl liy tin- 
 Hht'rili'oii an I'Nrciition aftci- a judge's order ti. refund lias lieen made ; Musters 
 V. Stanh'V (IS40) S I). )'.('. Kii). 
 
 Securities for Money. Hills, notes and securities could not be seized at eoni- 
 nioii law ; Wood \-. Wood (lS4:i) 4 (,>.15. 4(»i. A policy <>f insurance on the 
 del)torN's own life cannot be seized ; Re Sargent's I'olicy (IH70) 7 L. R. fi'. (Mi ; 
 1 lit a li;e |iolii'v after loss niav be .sei/.ed ; Hank of Montreal v. Mc'r.-vish 
 (IS(}7) 13 <;r. :»!).'). (See on this point ; 8tokoe v. Cowan (1801) 'J!) Heav 0;{7). 
 
 A elio(|ue for money in t'ourt drawn l)y the acconnlunt but not delivered, 
 canntit be seized ; ("ourtoy v. Vincent (bS.-iS) 1") Heav. 4!S(i ; but a stop ordci 
 might be obtained ; Kx parte Chaplin (1H.S9) ."$ Y. it C. :i!)7 ; Steckle v. Hvers 
 (l.S!)(») 10 C.L.T. 41 ; Watts v. .letlcryes (isrd) M Mac & (i. \11. 
 
 A secmitv which has been assigned by the debtor as collateral security can- 
 not be .seized : Rumohr v. Marx {kS82) 2 C.L.T. .-)()1, 3 O.R. 1()7. 
 
 liooka of account are not securities for nione\' ; see McNaughton v. ^\'ebster 
 (IHOO) U.C.L.J. 17. A nionev bond for th< conveyance of land may ))c 
 seized ; R. v. Potter (IHUO) Id C.l'. :«». 
 
 Property held by way of lien cannot be seized. Legg v. Kvans (1S40| (i M 
 iV W. 'M\ ; liut a p.iwnfiroker's interest in redeemable pledges may lie taken 
 in execution, and the shciitt will be entitled to rceive the money payable in 
 redemi)tion of the pledges, and to sell the pledges when the pawnliroker might 
 have <lor.e ; Re Rolla.soii. Hollason v. KoUason (1HH7) 'M Cli. 1). 4!).), 
 
 Securities are only bound from the time of seizure : McDowell v. ^IcDowcU 
 (ISIW) 10 U.C.L.J. 48. 
 
 Subject to Creditors Relief Act. Sec notes to R.S.O. c. 78. 
 
 Securities to be Collected. 'I'he Sherilf has no ])ower to realize ujion securi- 
 ties by sale. He must collect after maturity by suit, if necessary. Rumohr 
 y. Marx (1882) 2 C.L.T. 501 : 3 O.R. 107. ' Uiider the Al).scondiiig Debtor's 
 Act (R.S.O. c. 7!)) s. 10 the sheriH' may sell debts seized under an order for 
 attachment. 
 
 Seizure of Goods in Possession of Third Party. Prior to 18!)3 a SheriflF was 
 bound at his jieiil to find all the goods of the dei)tor in his l)ailiwiok or be 
 subject to an action for damages for false return. He is now Ixmiid only lo 
 seize goods of the debtor in his own possession or in the possession of a third 
 party who makes no claim thereto unless (1) ho has written instructions from 
 the creditor and (2) the creditor gives him a bond of indemnity. 
 
 The written instructions will make the creditor liable for the Sheritrs and 
 claimant's costs of an interpleader ai)plication if the creditor declines to take 
 an i.ssuo. Vanstaden v. Vanstaden (1884) 10 P.R. 428. 
 
 It was formerly held that a person who took a bona of indemnity thereby 
 disentitled himself to relief by interpleader ; Tucker v. Morris (18.S2) 1 C. & M. 
 73 ; Helcher y. Smith (1832) 9 Ring. 82 ; and see Murielta v. South American 
 Co. (1893) 02 L.J.Q.R. 390 ; but such an objection could not be raised by the 
 party who gave the indenuiity ; Thompson v. Wright (1884) 13 (^J.H.]). 032, 
 8. 22 (7) provides " that nothing in this .section shall limit the right of the 
 SheriH' to apply for relief by Interplea<ler, etc." The language will probably 
 be construed as sufficient to preserve the right of the Sheriff to interpleader, 
 even though he may take a bond of indemnitj". Where an interpleader order 
 is granted, the Sherifl' may be protected against an action for trespass to land 
 as well as against an action for the .seizure of the goods, if no substantial griev- 
 ance has been done to the person whose premises have been wrongfully entered : 
 Smith y. Critchfiehl (188.-)) 14 Q.B.I). 873 ; Winter v. Harthohimew (1850) 11 
 Ex. 704. If the goods had been seized by special instructions from the execu- 
 tion creditor, he woidd be lial)le for the trespass up to the time of making the 
 interpleader order ; Walker v. Olding (1802) 1 H. & C. 021 ; Lister v. North- 
 ern Ry. Co. (1869) 19 C.P. 4t)8, and where the order directs the sale of goods, 
 and a sale takes place pursuant thereto, the sale is the act of the Court, and 
 no damages can be recovered against any person therefor; Walker v. Olding 
 (18()2) 1 H. & C. (i21 ; Abbott v. Richards (!84(V) 15 M. & W. 194 : Clark v. 
 FarrcU (1881) 31 C.P. 584, ,590 ; Kennedy v. Patterson (18(i3) 22 U.C.R. 556: 
 Park V. Taylor (18.V2) 1 C.P. 414 : Heud'erson v. Wilde (1849) 5 U.C.R. 585 : 
 Lister v. Northern Ry. Co. (1809) 19 C.P. 408 ; lieid v. (iowans (18S()) 13 A. 
 R. .')01, and a good title will be confeii'cd on the purchaser ; (-oodlock v. 
 Cous'MS (1897) 1 Q.B. 348, 55H. 
 
EXECUTION. 
 
 381 
 
 The result of a. 22 would seem to Ihj :— 
 
 (1) Tlio Slieriir may Hcizo goods in the possession of ii third iiarty, mid 
 claimed liy him, without special directions froir. the creditor. 
 
 (2) Or with such speeial directions. 
 
 V-i) But he is not hound to seize such without written instructions specifj'- 
 ing tiie identical property and a sutlicient hcjud of indenniity. 
 
 (4) Tlic Sherit!" may waive the written instructions or the bond, or either 
 of ihem, and he would not be lial)lo to the cliiiniant for an insufficienf 
 l)ond. 
 
 (5) The Siieriil' may rc(|uire the bond to inilemiiify iiirii against his own 
 costs and expenses, and also to secure the costs and expenses of the 
 claimant in connection with his claim, and any interpleader issue whicli 
 may l)e ilirected in respect of the same. 
 
 (o) If th(( Sheritl((l)taiiis an interpleader rder, he will lie protected from 
 liability fur the seizure and alsoifor tne sale of the goods, if the same 
 should be sold pursuant to the interpleader order, 
 
 (7) If tlie Sheriil'does not take a bond, or if the bond takon does not secure 
 the claimant's costs, t'le claimant will not in the evc.it of an interpleader 
 order being olitained have anj' riglits against the .Sheritl'. 
 
 (8) If an interpleader order is not obtained, die c'.aimanl will not bo l)o\niil 
 
 to accept an assignment of the l)ond ; l)Ut may sue the sheritl', who in 
 such case would have to rely solely <jn t):e Iwnd for his protection. 
 
 (9) The condition of the bond is not recuired in terms to cover damages, 
 liut merely the costs and expenses jf tlio .sheriff or claimant and it would 
 ap])ear to l)e doubtful whether 'Jie bondsmen would be liable to the 
 claimant for anj' damages, the claimant might bo entitled to recover for 
 the seizure. 
 
 (10) If the goods are sold pu^.-mant to an interpleader order, no one is liable 
 for any damages occas'jned thereby. 
 
 (11) It has not been derided whether a sheriff who has been indemnified is 
 entitled under (7) to protection by an interpljader order. 
 
 Seizure of Mortgeie Debts, Annuities, &c. Under s, 18 a mortgage ma_\- lie 
 seized and the shoriti' may enforce the personal remedies for the recovery of 
 the debt. Unc'jr ss. 23-28 without .seizing a mortgage and without garnish- 
 ment proceedings the interest of the debtor in lands tmdera mortgage or other 
 registered '.istrument securing a sum of money may be seized and the rights of 
 the debtr.i' enforced for the satisfaction of the execution. This is done by 
 virtue jf the execution as against goods. A rent charge coidd not formerly be 
 seize,! on an execution against goods; Smith v. TurnbuU (1849) o U.C.R. 
 .^S'i), but might on an execution against lands ; Dougall v. Turnbull (18r)2) 8 
 U.C.R. 622 ; 10 U.C.R., 121. Tiie provisions would seem not to be applic- 
 able to an execution from a Division Court against lands only ; Parke \. Hile\- 
 (1866) 3 E. & A. 215. 231. The right of action given to the sheriff seems to 
 be exerciseable in his own name as under s. 18. The right seems to be con- 
 fined to actions for sale and foreclosure. If the instrument itself is seized a 
 personal action upon the covenants therein may be maintained under s. 18. 
 The interest of the debtor in the covenants is bound by the execution under 
 s. 28 (3). 
 
 iSquity of Redemption in Lands. Sales of E(]uities of Redemption are gov- 
 erned by the same rules as sales of land ; C.R. 877-882. An Equity of 
 Rctlemption to bo saleable under execution must be such as arises under the 
 terms of the instrument creating the security. Where a deed is absolute in 
 form, any right of redemption or re pui'chase is not bound by or saleable under 
 an execution ; McCabe v. Thompson (18;)7) 6 Or. 17"); McDonald v. McDonell 
 (1864)2 E. (fe A. .393; Fitzgibbon v. Duggan (1865) 11 fir. 188. An equity 
 (jf redemption is saleable only where there is but one mortgage, or at most, 
 when it is an cijuitv existing l)etween one mortgagor and one mortgagee ; 
 Wood V. Wood (1869) 16 (ir. 471 ; Donovan v. Bacon (1809) 16 Gr. 472 n.; 
 Re Kcenan (1871) 3 Ch. Chand). 285 ; Kerr v. Styles (1879) 26 (ir., .309. See 
 Parr v. Montgomery (1880)27<ir. 521, where three mortgages were l.dd by 
 one mortgagee. An equity of redemption is an entire whole ; Faulds v. 
 Harper (1882) 2 0. R. 405; 11 8.C.R. 039, and therefore the interest of the 
 
332 
 
 EXECUTION. 
 
 
 
 r ' 
 
 ■,*«■■■ 
 
 debtor in a part of tlio lands comprised in the mortgage is not saleable ; Shaw 
 V. Tims (l,S7-2) 1!) (Jr. 4!)6 ; ^'ann()rman v. .McCaity (ISO!)) 20 C. J". 42, and if 
 two tenants in common mortgage land, tlie interest of one af them is not 
 hound l)y and cannot be sold inider execution; Crown v. Cliamlierlin (l.SSO) 
 '27 (ir. o.jl, and if lands comprised in a mortgage are ni ditt'erent counties, an 
 execution tvill not affect tlie eijuity of redemption ; Howard v, Wolfenden 
 (IHGS) 14 (ir. ISS. 
 
 If a person entitled to an undivided interest in land has mortgaged the same, 
 his e(|uity of redemption therein is exigible ; Rathbun v. t'ulberton (1875) 22 
 Or. 465. The correctness of the decisions that the ecjuitj' of redemption under 
 two mortgages upon the same lands is not exigibk, is open to doubt. In Samis 
 V. Ireland (1879) 4 A.R. 118, both Moss C.J.O. and Patterson J.A. who 
 aloii" gave judgments thought the statute wide enough to authorize the .sale of 
 such an equity. It had l)een held tliat a purchaser of a leasehold interest 
 which was subject to two mortgages could not keep tlie first mortgage alive as 
 against the second mortgagee being bound by the ett'ect of his piu'chase to j)ay 
 off' both mortgages ; Mcl)onald v. Reynolds (18G8) 14 (Jr. (iOl. It would seem 
 that unencumljcred property may be j)ut up for sale with an ecpiity of redemp- 
 tion in one parcel ; Samis v. Ireland (1879) 4 A.R. 1 18. 
 
 It has been (juestioned whetlier a mortgagee who recovers judgment upon 
 the covenant contained in the mortgage can sell the equity of redemption 
 under an execution upon such judgment. 'I'ho purchaser is bound to satisfy 
 the mortgage. The amount, it has been said, therefore, which is realized by 
 the slieritt', should, of right, be paid over to the mortgagor as the value of his 
 estate in excess of tiie mortgage ; Vainiormun v. McCarty (1869)20 C.l'. 47. 
 " There has always," said (iwynnej., " ai)peared to nie to be something so 
 inconsistent, as to be im))racticable, in the law ])ernntting ni<mey to be levied 
 under an exeeutic i issued upon a judgment, which money is not payable to 
 the judgment creditor ; while tlie operation of the sale, by means of which it 
 was levied, is to nullify tiie judgment witlumt satisfying it, leaving the judg- 
 ment creditor a mortgagee Htill, lait stripjied by liis own act of the benefit of 
 the covenant contained in his mortgage and of the judgment which he had 
 rec(.vere<l thereon "' ib., see also Samis v. Irelaiid (18'78) 28 C.P. 478, 484. It 
 was pointed out by Patterson J.A. in Samis v. Ireland (1879)4 A.R. alp. 
 136 that a judgment upon a covenant in a mortgage is almost necessarily for 
 more tlian the mortgage debt, and the view of (iwynne J. has not been 
 adopted in any reported case. A jjurchaser of the e<|uit\,' of redemption even 
 though he be the mortgagee ^^■ill taki; j)rccedence of an intermediate fraudulent 
 convej'ance. Parr v. Montgomery (1880) 27 Or. 521. 
 
 The ecjuity of redemption of a deceased n)ortgagor may since 27 Vict. c. 13, 
 be sold on an execution against his personal representatives ; McEvoy v. Chine 
 (1874) 21 (ir. 515. vSales by devisees will not jircvent the sheritt' selling; 
 .Johnston v. Sowdcn (1872) 19 Or. 224. A sale cannot be made for a debt not 
 contracted bv the deceased ; Samis v. Ireland (1879) 4 A.R. 118; Freed v. 
 Orr (1881)6A.R. 690. 
 
 Payment of Mortgage by Purchaser. If the purciiaser p.iys ofl' the mortgage 
 he becomes entitled to the legal estate, and if the sale by the Sheriff should be 
 void, the remedj' of the mortgagor would be redemption of tlie mortgagL", not 
 ejectment, Howes v. Lee (1870) 17 <>r. 459. Care slundd be taken in obtaining 
 the discharge to have it in the form given in s. .SI, otherwise the legal estate 
 may not become vested in the purchaser ; Lee v. Howes (1870) 30 U.C.R. 292. 
 
 Contingent Interests. The interest which a husband formerly ha<l in the 
 real estate of iiis wife might be sold under execution ; Moffat v. (Jrover (1855) 
 4 C.P. 402. Where the real estate is the separate property of a married woman 
 it is submitted that the husband has no exigible interest iluring her life. A 
 right to dower consummate, is saleable ' .i<ler execution as apossiljility coupled 
 with an interest, and but for s. 32 (2) an inchoate right of dower would be 
 exigible ; Rose v. Zimmerman (1852) 3 Or. 508 ; Miller v. Wiley (1866) 16 C. 
 P. 529; Allen v. Edinburgh Life Assee. Co. (1877) 25 (ir. 306. 
 
 An interest is contingent where a right of enjoyment is to accrue on an 
 event which is duliious and uncertain, learnc Contingent Remainder, 2. An 
 executory interest is an interest which is limited by a will or conveyance to uses, 
 and which would not be valid at common law an a contingent remainder ; 
 CiiuUis Real Property, 58. 
 
EXECUTION. 
 
 333 
 
 Possibilities coupled with an interest include gifts to the survivors of several 
 persons — to children wiio niav lie living at the deatli of their surviving parents. 
 Roe V. Jones (1789) 3 T. R. 'SH ; per I'roudfott J. Allen v. KilinlniVgli Life 
 Assco. Co. {1877) 25 Or. 313 ; Hyden v. Williamson (1731) 3 P. Wnis. 132. 
 
 Propcrtj- over which a person has a disposing power wouhl include all ])riip- 
 erty which under a deed or will, the debtor might a])point to his own use ; 
 London Chartered Bank of Australia v. Lcminierc (1873) L.R. 4 I'.C. 572. 
 
 Church FewB. The al)solute |)ur(hase of a pe«- creates in the purchaser a 
 fee simple ; Tully v. Farrell (1876) 23 (ir. 4;). 
 
 Sales Against Executors. To supj>ort a sale under a judgment against an 
 executcr oi administiator, the indgment creditoi- must have been a cre<litor of 
 of the deceased ; Fi'ccd v. Orr (1881) G A.R. OiM.I. 
 
 Lands are assets in the hands of a personal representative and to a defence 
 of plinc (I'lmin'mlritri), the jjlaii.till' mav reply lands; (iardiner v. (iardiner 
 (18;i2) 2 O.S. 520 ; Seaton v. Taylor (1847) 3 U".C.R. 302 ; fSicklcs v. Asseltine 
 (185.'> 10 U.C.R. 203, but such a replication would seeia to be unnecessai'V : 
 iMein v. Sliort (18.50) 9 C.P. 244. !1 C.P. 430 ; Holton v. McDonahl (18«2)"l2 
 C.P. ?4(). Heirs and devisees arc, in the absence or fiaiul or collusio!!, bound 
 by a judgment against personal representatives ; Lovell v. (iib.son (1872) 10 
 (ir. 280 ; Willis v. Willis (1872) 19 (ir. 573, aiul if persons ajjpointed execu- 
 tors by a will defend an action 'igainst them as executors tliey will without 
 ])rol)ate be hehl to iiave accepted the olHce and a good title to the testator's 
 lands may be conveyed bv the fSheriti' under an execution on a judgment 
 recovered in such action ; ^IcDonald v. McDonald (1890) 17 A.R. 192. 
 
 A judgment against an executor de, son tori will not authorize a .sale of the 
 lands of the decea.sed ; O'Connor v. Dafoe (1858) 15 U.C.R. .SS(i ; Wralhwell 
 v. Rates (1858) 15 U.C.R. 391 ; (iraham v. Nelson (1857) C.P. 280. 
 
 If the estate is insolvent the creditors must be paid ratablj^ and the personal 
 representative on being sued shouhl eitiicr set up t\v, insolvency or obtain an 
 order for adniini.stration ; see "An Executor's Defence at Law," 10 C.L.T. 
 277. See notes to R.S.O. e. 129. 
 
 . 
 
CO 
 
 CHAPTER 148. 
 
 Ill 
 
 Ol 
 
 S 
 
 ^>' 
 
 r 
 
 i 
 
 An Act respecting Mortgages and Sales of Personal 
 
 Property. 
 
 As amended by 63 V. c. 11. 
 
 Short Title, s. 1. 
 Chattel Moktoages where pos- 
 session OF GOODS UNCHANGED : 
 Affidavits as to indebtedness, ss. 
 
 2,3. 
 To be registered or void as against 
 
 creditors, ss. 2, 5. 
 To operate from execution, s. 4. 
 Salks of goods where possession 
 unchanged : 
 To be registered or void as against 
 creditors, s. 6. 
 Mortgages of (icons to secure 
 advances or sureties, sb. 7, 8. 
 Authority to he filed, s. 9. 
 Affidavit ok bona fides may ue 
 
 MADE BY one OR TWO OK 
 MORE MORTGAGEES, etc., S. 10. 
 
 Contracts to give mortgages or 
 
 MAKE SALES, SS. ll-l-J. 
 
 Place of re(;i.stration, sa. 1.^, IG. 
 When mortga((ED goods removed 
 
 to another county or d:s- 
 
 trict, t. 17. 
 Renewal of moktgaoes, ss. 18-23. 
 
 Certificate of clerk to be evi- 
 dence OF registration, s. 24. 
 Discharge of morkiages, ss. 25-28 
 Fees, s. 29. 
 Miscellaneous : 
 
 Registration where time expires 
 on a day on which offices are 
 closed, s. 30. 
 Authority to tivke or renew moit- 
 
 gages may be general, s. 31. 
 Description in instrument, s. 32. 
 Affidavits, s. 33. 
 
 Act not to apply to vessels, s. 34. 
 Where new county formed, s. 35. 
 Inspection of books, s. 36. 
 Act to extend to goods not ready 
 
 for delivery, s. 37. 
 "Creditor," meaning of, s. 38. 
 " Actual and continued change of 
 possession," meaning of, s. 39. 
 Taking possession not to validate, 
 8. 40. 
 Agbee^ients where possession pas- 
 ses without ownership, s. 41. 
 Statistical returns, s. 42. 
 
 HER MAJESTY by and with the advice and consent of 
 the Legi.slative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 Short title. 1, This Act may be cited as " The Bills of Sale and Chattel 
 
 Mortgage Act" 57 V. c. 37, s. 1. 
 
 C( 
 
 ti 
 
 it 
 
 EFFECT OF REGISTERING OR OMITTING TO REGISTER. 
 
 MortKafe'es of 3. Every mortgage, oi' conveyance intended to operate as a 
 fended"wit1i mortgage of goods and chattels, in Ontario, which is not acconi- 
 chanffeof pos paiiied by an immediate delivery and an actual and continued 
 refftflterfd" '"' <*,hange of possession of the things mortgaged, or a true copy 
 thereof, shall, within tive days from the execution thereof, 
 except as hereinafter otherwise provided, bo registered as here- 
 inafter providetl, together with the affidavit of .11 attesting 
 witness thereto, of the due execution of such moi^.gage or 
 
Sec. 6. CHATTEL MORTGAG' AND BILLS OF SALES. Chap. 148. 335 
 
 conveyance, or of the due execution of the D'ortgage or con- 
 veyance ot which the copy filed purports to be a copy, which 
 affidavit sliall also contain tlie date of the execution of the 
 mortgage, and also witli the affidavit of tlie mortgagee or of 
 one of several mortgagees, or of the agent of the mortsasee 
 or moi'tgagees, if such agent is aware of all the circumstances 
 connected therewith and is properly authorized in writing to 
 take such mortgage, in which case the affidavit of the agent 
 shall state that he is aware of all the circum.stances connected 
 therewith, and a copy of such authority or the authority 
 itself shall be registered therewith. 57 V. c. 37, s. 2. 
 
 3. Such last mentioned affidavit, whether of the mortgagee Content-i of 
 or his agent, or one of several mortgagees or the agent of the affidavit of 
 mortgagee or mortgagees shall state in addition to what is re- "'"* "' 
 c[uired by section 2 of this Act that the mortgagor therein 
 named is justly and truly indebted to the mortgagee in the 
 
 sum mentioned in the mortgage, that the mortgage was exe- 
 cuted in good faith and for the express purpose of securing the 
 payment of money justly due or accruing due and not for the 
 23urpo.se of protecting the goods and chattels mentioned therein 
 against the creditors of the mortgagor, or of preventing the 
 creditors of such mortgagor from obtaining payment of any 
 claim against him. .57 V c. 37. h. 3. 
 
 4. Every such mortgage or conveyance shall operate and when mort- 
 take effect upon, from and after the day and time of the exe^u- f(^f^ '» take 
 tion thereof .57 V. c. 37, s. 4. ^ ^'^~'- 
 
 5. In case such mortgage or conveyanci* and .affidavits are Effect of non- 
 not registered as by this Act provided, the mortgage or con- 'egwiration. 
 veyance shall be absolutely null and void as against creditors 
 
 of the mortgagor, and against subsequent purchfisers or mort- 
 gagees in good faith for valuable consideration. 57 V. c. 37, s. 5. 
 
 6. Every sale of goods and chattels, not accompanied by an Sale of goods 
 immediate delivery and followed by an actual and continued "9'*"™'^*'* 
 change of possession of the goods and chattels sold, shall be in to be regis- 
 writing, and such writing shall be a conveyance under the pro- tered. 
 visions of this Act, and shall be accompanied by an affidavit 
 
 of an attesting witness thereto of the due e::ecution thereof, 
 and an affidavit of the bargainee, or his agent (if such agent is 
 aware of all the circumstances connected tlierewith) duly 
 authorized in writing to iake tlie conveyance (a copy of which 
 authority or the authority itself shall be attached to and filed 
 with the conveyance) that the sale is homt fide and for good 
 consideration, as set forth in the said conveyance, and not for 
 the purpose of holding or enabling the bargainee to hold the 
 goods mentioned therein against the creditors of the bargainor, 
 and the conveyance and affida\ Its shall be registered, as by 
 this Act provided, within five days from the executing thereof, 
 otherwise the sale shall be absolutely void as against thecredi- 
 
 '1 
 
33G 
 
 Chap. 148. CHATTEL MORTGAGES AND BILLS OF SALE. SeC. 0. 
 
 1 
 
 % "i 
 
 
 5?l 
 
 tors of the bargainor and as againr4 subsequent puvcl lasers or 
 mortgagees in good faitli. 57 V". c. 37, s. 6. 
 
 MortgaResto 7. In case of an agreement in writing for future advances 
 advances to^ I'or the purpose of enabling the borrower to enter into and 
 be registered, carry on business with .such advances, tlie time ot repayment 
 thereof not being longer than one year from the making of the 
 agreement, and in case of a mortgage of goods and chattels for 
 .'ecuring the mortgagee repayment ol' such advances, the time 
 of repayment thereof not being longer than one year from the 
 making of the agreement, and in case the mortgage is executed 
 iu good faith, and sets forth fully by recital or otherwise, the 
 terms, nature and eftect of the agreement, and in case the mort- 
 gage is accomp.'inied by the affidavit of an attesting witness 
 thereto of the due execution thereof, and by the affidavit of 
 the mortgagee, or in case the agreement has been entered into 
 and the mortgage taken by an agent duly authorized in writ- 
 ing to make si:ch agreement and to take such mortgage and if 
 the agent is aware of the circumstances connected tlierewith, 
 then, if accompanied by the affidavit of such agent, sucli affi- 
 davit, whether of the mortgagee or his .agent, stating that the 
 mortgage truly sets forth the agreement entered into between 
 the parties thereto and truly states the extent of the liability 
 intended to be created by the agreement and covered by such 
 mortgage, and that the mortgage is executed in good faith, and 
 for the express purpose of securing the mortgagee repayment 
 of his advances, and not for the purpose of securing the goods 
 and chattels mentioned thei'ein against the creditors of the 
 mortgagor, nor to prevent such creditors from recovering any 
 claims which they may have against the mortgagor, and in 
 case the mortgage is regi.stered as by this Act provided, the 
 same shall be as valid and binding as mortgages mentioned in 
 the preceding sections of this Act. 57 V. c. '67, s. 7. 
 
 Mortgages 8. In case of a mortgage of goods and chattels for securing 
 
 mdorpwsand* ^'*® mortgagee against the indorsement of any bills or promis- 
 HUieties to be sory notes or any other liability by him incurred for the mort- 
 registered. gagor, not extending for a longer period than one year from 
 the date of such mortgage, and in case the mortgage is execu- 
 ted in good faith, and sets forth fully by recital or otherwise, 
 the terms, nature and effiict of the agreement, and the amount 
 of liability intended to be created, and in case such mortgage 
 is accompanied In" the affidavit of an attesting witness thereto 
 of the due execution thereof, and by the affidavit of the mort- 
 gagee, or in case the mortgage has been taken by an agent duly 
 authorized in writing to take such mortgage and if the agent 
 is aware of the circumstances connected therewith, then, if 
 accompanied by the affidavit of such agent, such affidavit, 
 whether of the mortgagee or his agent, stating that the mort- 
 gage truly states the extent of tlie liability intended to be 
 created and covered liy such mortgage, and that such mortgage 
 is executed in g(}od faith and for the express purpose of secur- 
 
Sec. 12. CHATTEL MOHTGAGES AN'D HILLS (>F SALE. Chap 148. 
 
 im 
 
 incj tlio niorti>a<>eo ajjainst tlic ijavniciit of tlie' aiiioiuit of his 
 liability for the moi-tjraffor, as the case may be, and not for the 
 purpose of seciiriiii; tlie (jood.s and chattels mentioned therein 
 acjainst the creditors of the mortgagor, nor to prevent such 
 creditors from recoverintr any claims which they may have 
 ajiainst such mortjjaijor, and in case such morti;ao;e is registered 
 as by this Act provided, the same shall be as vali<l and bindinor 
 as mortgages mentioned in the preceding .sections of this Act. 
 57 V. c. 37, s. 8. 
 
 !>. The authority in writing refei-red to in the two next Agents' au- 
 precoding sections, or a copy of such authority shall be attaclu'd attached'to'' 
 to and filed with the niortgage. .57 V. c. 87, s. 9. » mortgage. 
 
 10. The afiidavit of bona fides required by sections 6, 7 and Attidavits of 
 8 may be made by one of two or more bai'gainees or mortga- ^""" ^ "' 
 gees and if made by an agent as herein piovided the same 
 shall state that he is aware of all the circumstances connected 
 with the sale r. mortgage, as the case may be. 57 V. c. 37, s. 10. 
 
 CONTRACTS TO GIVE MORTGAGES, ETC. 
 
 1 1 . Ever}' covenant, promise or agreement entered into on or Contract to 
 
 after the 7th day of April, 1896, to make, execute or give a mort- B've» chattel 
 J •.]!. . j.^ e J mortgage to be 
 
 gage or conveyance uitended to operate as a mortgage or goods deemed a 
 
 and chattels in whatever words the same may be expressed ""o'ttf^e- 
 
 shall be deemed to be a mortgage or conveyance within the 
 
 meaning of this Act, and unless accompanied by an innnediate 
 
 delivery and an actual and continued change of possession of 
 
 the goods and chattels mortgaged, the same or a true copy 
 
 thereof together with affidavits of execution and bona fides 
 
 shall be regisjtered within the time and in the manner hereby 
 
 prescribed in respect of bills of sale and mortgages, otherwise 
 
 such covenant, promise or agreement shall be absolutely null 
 
 and void as against creditors of the mortgagor and against 
 
 subsequent purchasers or mortgagees in good faith for valuable 
 
 consideration. 59 V. c. 34, s. 1. 
 
 12. Every covenant, promise or agreement to make a sale Contract to 
 of goods and chattels, in whatever words the same may be ex- be*dee?n^'*a*'' 
 pressed, shall be deemed to be a sale of goods and chattels sale, 
 within the meaning of this Act, and unless accompanied b)' an 
 immediate delivery, and followed by an actual and continued 
 
 change of possession of the said goods and chattels shall be in 
 writing, and such writing accompanied by affidavits of execu- 
 tion and bona fides shall be registered within the time and in 
 the manner prescribed as respects bills of .sale by this Act, 
 otherwise the said covenant, promise or agreement shall be 
 absolutely void as against the creditors of the bargainor and as 
 against subsequent purchasers or mortgagees in good faith. 
 59 V. c. 34, s. 2. 
 w. 
 
 
 VI •! 
 
 ::4 
 
 
H.S8 
 
 Chap. 148. CHATTEL MOUTOAUES AND BILLS OF SALE SeC. 13. 
 
 Cuntractfi 
 made prior to 
 7th April, 
 lSi)6. 
 
 ci: 
 
 ■fi. 
 
 Verbal 
 aKri^einenta. 
 
 iDBtrumentK 
 to be regiBter- 
 ed in the 
 county court 
 office. 
 
 Repiistration 
 in Algoma, 
 Thunder Bay, 
 Nipissiug. 
 
 Kegistrntion 
 in Parry 
 Sound, Mus- 
 koka and 
 Rainy River. 
 
 Resfistration 
 in Ualiburton, 
 
 Registration 
 in Manitoulin. 
 
 Instrunientu 
 Hied with De- 
 puty Clerk 
 prior to 4th 
 May, 1891. 
 
 I!t. In the case of covenantH, promises or ajfreements mnde 
 bi'lVnv the 7th (hiy of April, 1S!)G, the provisioiiH of tliis Act 
 with rt'tfard to rej^Lstratioii may l)e deemed to be complied 
 with if such re^istx-ation wan eftected within three calendar 
 months after the said date and subject thereto this Act shiill 
 extend and ajjply to every such covenant, promise and aifrei;- 
 ment made before as well as after the said date. 59 V. c. 1^4, s. 3. 
 
 1 4. Everv verbal aiji-eement to the effect mentioned in the 
 three next pvecedint; si'ctions and not reduced to writiii};' shiill 
 be aUsolutely null and void to all intents and pin-poses what- 
 ever, as ajjainst creditors or subsequent purchasers or mortga- 
 gees mentioned in such sections. 5}) V. c. H4, s. 4. 
 
 PLACE OF REGISTUATION. 
 
 15. — (1) The ii> truments mentioned in the precedinif sec- 
 tions shall in counties be re<i;istered in the office of the Clerk of 
 the County Court of the county or union of counties where tlie 
 property so mortt^-aifed or sold is at the time of the execution 
 of such instrument ; and every such Clerk sliall file all such 
 instruments ])rescnti'd to liim for that piu'pose, and ihall 
 indorse thereon the time of receiving the same in his office, 
 57V.c.37,s. 11 
 
 (2) Where the goods and chattels mortgaged or sold are situate 
 within tl>" Districts of Algoma, Muskoka,Thinider Bay or Nip- 
 issing, the said instruments shall be filed within ten days from 
 the execution thereof in the office of the District Court Clerk 
 in the district in which the goods are situate. 62 V. c. 1 1, s. 80. 
 
 (3) Where the goods or chattels mortgaged or sold are 
 situate within the Districts of Parry Sound or Rainy River, the 
 said instruments shall be filed within ten days from tlie execu- 
 tion thereof in the office of the Clerk of the First Division 
 Court of the district in which the goods are situate. When 
 and so soon as a vacancy shall hereafter occur in the office of 
 the Clerk of the First Division Coui't in the said District of 
 Parry Sound, the .said instruments shall thereafter be filed 
 within ten days fi'om the execution thereof in the office of the 
 District Court Clerk in the .said District of Parry Sound. 62 
 V. c. 11, ss. 31 and 32. 
 
 (4) Where the goods and chattels moi'tgaged or sold are 
 situate within the Provisional County of Haliburton, the said 
 instrinnents shall be filed within seven days from the execution 
 thereof in the office of the Clerk of the First Division Court 
 of the said provisional county. 59 V. c. 32, s. 1. 
 
 (5) W^here the goods and chattels mortgaged or sold are 
 .situate within the Di.strict of Manitoidin the soid in.stru- 
 ments shall be filed within ten days from the execution 
 thereof in the office of the Deputy Clerk for Manitoulin. 
 
 (6) Any bill of sale or chattel mortgage filed with the said 
 Deputy Cleik for Manitoulin prior to the 4th day of May, 1891, 
 shall be as valid as if the same had been filed with the Clerk 
 of the Countv Court. 
 
Sec. 18. CHATTEL MOUTGAOES AND BILLS OF SALE. Cluip. 148. 
 
 339 
 
 (7) Nothing in the two next procedinjj subsoctions contained Proceedings 
 shall be construed to att'ect any action or other pi'oceeding ^'[^''jj"f^""j,g^ 
 pending on tbe 4th day oi" May, 1S91, in vvliicli the validity not affected, 
 ot" any in.stnnnent recjuired to be tiled un<ler cliapter 12.5 of 
 
 the Revised Statutes of Ontario, 1<S87, and aniendino' Acts is 
 called in (juestion by reason of the place of tiling such 
 instrument. 57 V. c '37. s 28. 
 
 (8) " Clerk of the County Court " or " Clerk " when used in Meaning of 
 this Act shall unless where inconsistent with the context, in- 'l^'^f'' "(^ 
 elude the othcers mentioned in this section. (iO V. c. 3, .s. 3. Court." 
 
 Hi. The said Clerks respectively shall number every such Manner of 
 instrument or copy tiled in their offices, and shall enter in regiHtration. 
 alphabetical order in books to be provided by them, the names 
 of all the parties to such instruments, with the numbers indor- 
 sed thei'eon opposite to each name, and such entry shall be 
 repeated alphabetically inider the name of every party thereto. 
 57 V. c. 37, s. 12. 
 
 1 T. In the event of the permanent removal of goo<ls and Procedure 
 chattels mortgaged as aforesaid from the county or union of gagged *Kood8 
 counties or territorial district in which the goo.ls and chattels are removed, 
 were at the time of the execution of the mortgage, to another 
 county or iniion of counties or territorial district, or to the 
 said provisional county of Haliburton, or from the said pro- 
 visional comity to another county or union of coiinties or 
 territorial district, l)efore the payment and discharge of 
 the mortgage, a certified copy of the mortgage, under the hand 
 of the Clerk in whose office it was first registered, and under 
 the seal of the Court, and of the affidavits and documents 
 and instruments relating thereto filed in such office, shall be 
 tiled with the Clerk of the County Court of the county or 
 union of counties to which the goods and chattels are removed, 
 or in the proper office as mentioned in section 15, in case such 
 goods and chattels are removed to a territorial district oi' to 
 the said piovisional county, within t wo month s from such 
 removal, otherwise the said goods and chattels shall be liable 
 to seizure and sale under execution, and in such case the moi-t- 
 gage shall be null and void as against creditors of the moi't- 
 gagor and against subsetpient purchasers and mortgagees in 
 good faith for valuable consideration, as if neve'" executed. 
 57 V. c. 37, s. 13; 60 V. e. 3, s. 3. 
 
 RENEWAL OF MORTGAGES. 
 
 18. Subject to the provisions hereinafter contained as to statement of 
 mortgages to companies, every mortgage, or copy tlu'reof, filed u'^cl* j* *^"''i'° 
 in pursuance of this Act shall cease to be valid, as against the 
 creditors of the persons making the same and against sub- 
 seijuent purchasers and mortgagees in good faith for valual)le 
 consideration, after the expiration of om> year from the day of 
 the filing thereof, unless, within thirty days next preceding 
 
840 
 
 Chap. 148. CHATTEL MORTGAGES AND BILLS OF SALE. SeC. 18. 
 
 
 \'' 
 
 ^. 
 
 
 Fonn of state 
 meat and 
 tttti'lavit. 
 
 Proviso. 
 
 tlie expiration of tlie .said term of one j'ear, a statement 
 exhibitintf the intere.st of the nioit^atjee, his executors, admin- 
 istrators or otlier assii^ns in the propert}' chiimed by virtue 
 thereof, and shewin<j^ the amount still due for principal and 
 interest thereon, and shewin<; all payments made on account 
 thei-eof, is tiled in the ottice of the Clerk of the Count}' Court 
 of the comity or union of comities wherein the floods and 
 chattels are then .situate, with an affidavit of the morttjafjee, 
 or one of .several mortfjaffees, or of the assijjjnet; or one of 
 .several assijjnees, or of the agent of the mortgatjee or a.ssij>nee, 
 or mortij;a<iees or assitrnees (as the case may lie), duly author- 
 ized in writiiicj, tor that purpose (a copy of which authority or 
 the authority itself shall he tiled therewith), that the .statement 
 is true, and that the mortfjajje has not been kept on foot for 
 any fraudulent purpose. 57 V. c. 37, s. 14. 
 
 10. The statement and affidavit mentioned in the next pre- 
 cedintj .section may be in the form given in the Schedule B to 
 this Act, or to the like effect : Provided, that if any bona fide 
 error or mistake shall be made in the said .statement, either 
 by the omission to give any credit or credits or b)^ an}- mis- 
 calculation in the computation of interest or otherwi.se, the 
 .said statement and the mortgage therein referred to shall not 
 be invalidated, provided that the mortgagee, his executors, 
 administratoi's or other a,ssigns shall, within two weeks after 
 the di.scovery of any such error or mistake, file an amended 
 statement and affidavit in the form given in Scliedule B or to 
 the like effect, and referring to the former statement and clearly 
 pointing out the error or mi.stake therein and correcting the 
 same ; but if, prior to the filing of such amended statement 
 and affidavit, any creditor or purchaser or mortgagee in good 
 faith for valuable consideration shall have made any bona fide 
 advance of money or given any valuable consideration to the 
 mortgagor, or shall have incurred any costs in proceedings 
 taken on tlie faith of the amount due on any mortgage being 
 as stated in the renewal statement and affidavit filed, then the 
 said mortgage as to the amount so advanced or the valuable 
 consideration given or costs incurred as aforesaid by such 
 creditor, purchaser or mortgagee, shall, as against such creditor, 
 purchaser or mortgagee, stand good only for the amount men- 
 tioned in the renewal statement and affidavit fii-st filed. 57 V. 
 c. 37. s. 15. 
 
 Manner of 
 filing and 
 entering 
 affidavit and 
 statement. 
 
 20. The statement and affidavit shall be deemed one instru- 
 ment, and be filed and entered in like manner as the instru- 
 ments in this Act mentioned are, by section 16, required to be 
 filed and entered, and the like fees shall be payable for filing 
 and entering the same as are now payable for filing and enter- 
 ing such instruments. 57 V. c. 37, s. 16. 
 
 Statement 
 to be filed 
 annually. 
 
 'iX. Another statement in accordance with the jirovisions of 
 section 18 of this Act. duly verified as required by that section, 
 shall be filed in the office of the Clerk of the County Court of 
 
Sec. 23 (1). CHATTEL MOUTOAUES AND lULLS OF SALE. Chap. 148. 
 
 841 
 
 the county wherein the j^oo'ls und chattels (leHcrihcd in liie 
 niortgiifTe fire then situate, within thirt\' days next precedini^ 
 the expiration of the t"rni ol" one year froni tiie day ot" the 
 tiling of the statement required hy the said section IS, or 
 such mortgage, or copy thereof, shall cease to be valid as against 
 the creditors of the persons niaking the same, and as against 
 purchasers and moitgagees in good faith for valuable consider- 
 ation, and so on from year to year, that is to .say, another .state- 
 ment as aforesaid, duly veriiied, shall be tiled within thirty 
 days next preceding the expiration of one year from the day 
 of the filing of tlie former statement, or such mortgage or 
 copy thereof shall cease to be valid as afoix'said. 57 V. 
 c. 87, s. 17. 
 
 'Z'<i. The affidavit re(piired by section IS may be made by By whom 
 
 anv next- of kin, executor or administrator of any decea.sed amdavits on 
 
 •^ ,' . ,.., ill renewals may 
 
 mortgagee, or by any assignee clannnig by or through any be made. 
 
 mortgagee, or any next of kin, executor or administrator of 
 
 any such assignee ; but if the affidavit is made by any assignee, 
 
 next of kin, executor or administrator of any such assignee, 
 
 the assiijinnent or the several assignments through which the 
 
 assignee claims shall be tiled in the proper office of the county 
 
 in which the goods are, at or before the time of such refiling 
 
 by the assignee, next of kin, executor or admini.stvator of the 
 
 assignee ; Provided that an assigmnent for the benefit of credi- P'oviso. 
 
 tors under chapter l-i? of the Revised Statutes of Ontario, 
 
 1S97, Ol' any other Act of the Province of Ontario oi' the 
 
 Dominion of Canada relating to assiynments for the benefit of 
 
 creditors or to insolvency or bankruptcy, need not be tiled 
 
 as aforesaid, provided such assignment be referred to in .such 
 
 statement, and notice thereof (wlien requin-d), shall have been 
 
 given in manner i-equired by law. -57 V. c. .')7, s. IS. 
 
 ft;- 
 
 MOUTGAGES TO SECURE BOxND.S, ETC., OF COUPORATIOXS. 
 
 '*'i. — (1) In the case of a mortgage or conveyance of goods Affidavits of 
 and chattels of any companx- incorporated by or under any Im- bonafides 
 penal Act or charter, or by or under any Act or charter of the (jage given by 
 Dominion of Canada, or by or under any Act or charter of the company to be- 
 Province of Ontario, made to a bondholder or liondholdi-rs, or delwntures."' 
 to a trustee or trustees, for the purpose of securing the bonds 
 or debentures of such company, instead of the affidavit of 
 homi fides recpiired by the sections 2 and 3 of this Act, it 
 shall be sufficient for the purposes of this Act if an affidavit 
 bo filed as thereljy recjuired, made by the mortgagee or one of 
 the mortgagees, to tlu' effect that the said mortgage or con- 
 veyance was executed in good faith and for the express pur- 
 pose of securing the payment of the bunds or debentures 
 referred to thei-ein, and not for the purpose of protecting the 
 goods and chattels mentioned therein against the ci'editors of 
 the mortgagors, or of preventing the creditors of such mort- 
 gagors from obtaining payment of any claim against them. 
 
 .-^Il 
 
 m 
 
 il 
 
342 
 
 Chap. 148. CHATTEL MORTOAGKS AND BILLS OF .SALE. SeC. 23 (2). 
 
 i 
 
 r 
 
 
 
 Time for filing 
 mortgaere 
 where head 
 office of com- 
 pany not in 
 Untarin. 
 
 Renewal of 
 mortgages. 
 
 (2) In the ca.so of any such convf^'iince or niortgafje made 
 by an incor] latofl company, the head office whereol" is not 
 rt'ithin the I'l ivince of Ontario, such mortgage or conveyance 
 may he tiled within thirty days instead of tive days, as pro- 
 vided in section 2 of this Act, and the .same .sliall he of the 
 like foice, eH<ct and priority as if the same had been filed 
 within such fi ve day.s. 
 
 (8) Any such mortgage may be renewed in the manner and 
 with the effect provided by .section 18 and ,subse(|uent sections 
 of this Act upon the tiling of a .statement by the mortgagee or 
 one of the mortgagees exhibiting the interest of the mortgagee 
 or mortgagees in the property' claimed by virtue of the said 
 mortgage, and showing the amount of the bond or debenture 
 debt which the same was made to .secure, and showing all 
 payments on account thereof which, to the best of the informa- 
 tion and lielief of the person making such statement, have 
 been made, or of which he is aware or has been informed, 
 together with an affidavit of the per.son making such state- 
 ment, that the .statement is ti'ue to the best of his knowledge, 
 information and l)elief, and that the mortgage has not been 
 kept on foot tor any fraudulent purposi-, and such .statement 
 shal' be tiled instead of the statement leijnired by .said sec- 
 tion 18 of this Act. 
 
 (4) If any mortgage as aforesaid be made to an incorporated 
 company, the several affidavits and statements herein men- 
 tioned may be made by the president, vice-pi'esident, manager 
 or assistant manager of such mortgagee company, or any other 
 officer of the company authorized for .such purpose. 57 V. 
 c. :^7, s. 19. 
 
 (.5) Where such mortgage or conveyance is made as a 
 security for debentures and the by-law authorizing the issue 
 of the debentures, as a security for which the mortgage or 
 conveyance was made, or a copy thereof, certified under the 
 hand of the president or vice-president and .secretarj^ of the 
 company and verified bj' an affidavit of the secretary thereto 
 attached or endorsed thereon, and having the corporate seal 
 attached thereto, is registered with the mortgage or con- 
 veyance, it shall not be necessary to renew the .said mort- 
 gage or conveyance, but the .same .shall in such case continue 
 to be as valid as if the same had been duly renewed as in this 
 Act provided. 
 
 (6) The preceding subsection shall apply to every such 
 mortgage or conveyance made and registered after the 5th day 
 of May, 1894, but nothing herein contained shall affect any 
 accrued rights or any litigation pending on the 13th day of 
 April, 1897. 60 V. c. 14, s. 86. 
 
 PROOF OF REGISTRATION. 
 
 The clerk's 24. A copy of any original instrument, or of a. copy theref)f 
 
 be'e\^dem;e"of '^^ ^^^^ '^" aforesaid, including any statement made in pur- 
 registration, suance of this Act, certified by the Clei'k in whose office the 
 same has been iile(l nnch-r the seal of the Court, shall be re- 
 
 AiiidavitB and 
 statements on 
 behalf of 
 companies. 
 
 Renewal of 
 mortgage.'* 
 given to 
 secure deben- 
 tures of 
 companies. 
 
Sec. 29. CHATTEL MOHTOAOE.S AND HILLS OF SALK. Chap. 148. 
 
 ct'ived in t-vidonce in aU CourtH, but only of the fact that tlie 
 instruments or copy and statement were received and tiled 
 according to the indorsement of the Clerk thereon, and of no 
 other fact ; and in all ca.ses the orifjinal endorsement l»v the 
 Clerk, made in pursuance of this Act, upon any .such instrument 
 or copy, shall he ri'ceived in evidence only of the fact stated 
 in theV'ndor.sement. 57 V. c. 37, s. 20. 
 
 DISCHARGE OF MOUTOAOES, 
 
 '.W.i 
 
 'iH. Where any mort"ai;e of ffoods and chattels is registered Certifiuateg 
 under the pi'ovisions of this Act, .such mortcri'ge maybe dis- °^°j*g| '"^® 
 charged by the tiling, in the office in which the same is regis- mortgages, 
 tei'cd, of a certilicate signed by the mortgagee, his executors 
 or administratoi's, in the form given in the Schedule A hereto, 
 or to the like effect. 57 V, c. 37, s. 21. 
 
 'Hi. The officer with whom the chattel mortgage is filed, Entering 
 upon receiving such certificate, duly proved by the affidavit of dUchlfr'ge? "' 
 a subsci-ibing witness, shall, at each place whei-e the number of 
 the mortgage has been entered, with the name of any of the par- 
 ties thereto, in the book kept by him inider section 1(J of this Act, 
 or wherever otherwise in the said book the .said mortgage has 
 been entered, write the words " Discharged by Certificate Num- 
 ber {slating the number of the certificate)," and to the said 
 entiy the officer shall affix his name, and he shall also indorse 
 the fact of the di.scharge upon the instrument discharged, and 
 sliall affix his name to the indor.sement. 57 V. c. 37, s. 22. 
 
 'i7. Where a mortgage has been renewed under section 18 Entries of 
 of this Act, the indorsement or entries recjuired by the preced- '*"®**'- 
 ing section to Ik; made need only be made upon the statement 
 and affidavit filed on the last renewal, and at the entries of the 
 statement .and affidavit in the said book. 57 V. c. 37, . 23. 
 
 !J8. In case a registered chattel mortgage has been assigned Entry as- 
 the assignment shall, upon proof by the affidavit of a subscrib- ^nofj^a^gg 
 ing witness, be mnnbered and entered in the alphabetical 
 chattel mortgage book, in the same manner as a chattel mort- 
 gage, and the proceedings authorized by the next preceding 
 three sections of this Act, may and shall be had, upon a certifi- 
 cate of the assignee, proved in manner aforesaiil. 57 V . c. 37, 
 s. 24. 
 
 FEE-S. 
 
 *iU. For services under this Act the Clerks aforesaid shall Feps. 
 be entitle<l to receive the following fees : 
 
 I. For filing each in.strument and affidavit, and entering 
 the same in a book as aforesaid, fifty cents. 
 
t 
 
 ' <?. 
 
 
 I 
 
 ?1 
 
 344 CIl,!]). 148. Cll.VTTEl, MOK'KiAOKS AND IUI.LSCjFSAKK. Sec. 29. 
 
 2. For filing' tin .■is.sii,nimcnt of any in.stnnnmt, ami niak- 
 
 in;^ all proper indorst'nu'nts in connection there- 
 with, twenty-Hve cents. 
 
 3. For tilinj; a certificate ol' discharge of any instrument, 
 
 and making all proper entries and indorsements 
 connected therewitli, twenty-tive cents. 
 
 i. For a geni-ral search, twenty-tive cents. 
 
 5. For pro<hiction and ins[)ection of any instrument tiled 
 
 under tliis Act, ten cents. 
 
 6. For copies of any document with certificate prepared, 
 
 tiled luider this Act, ten cents for every hundred 
 words 
 
 7. For extracts, whether made by tlie person who made 
 
 the searcii, or by tlie oflicer, ten cents for every 
 luindred words. 57 V, c. 87, .s. 29. 
 
 MISCELLANEOUS PROVISIONS. 
 
 Registration :{o Wlu're, under any of the provisions of this Act, the 
 limited ex- time for registering or filing any mortgage, l)ill of sale, 
 pires on a day instrument, document, affidavit, or other paper expires on a 
 is closed. Sunday or other day on which the office in which the regis- 
 tering or filing is to be made or done is closed, and by reason 
 thereof the registering or filing cannot be made or done on 
 that day, the registering or tiling shall, so far as regards the 
 time of doing or making the same, be held to be duly done or 
 made if done or made on the <lay on which the ofiice shall next 
 be open. 57 V. c. 87, a 30. 
 
 General SI. An authority for the purpose of taking or renewing a 
 
 authority to niortgaiie or conveyance under the ijrovisions of this Act may 
 
 take or renew i®*^! .^i i n . 
 
 mortgages. be a general one to take and renew all or any mortgages or 
 conveyances to the mortgagee or bargainee. 57 V. c. 37, s. 81. 
 
 Manner of de- JJrJ. All the instruments mentioned in this Act, whether for 
 pertyln inort- t'le sale or mortgage of goods and chattels, shall contain such 
 gages, etc. sutiicient and full description thereof that the same may he 
 
 thereljy readily and easily knmvn and distinguislied. 57 V. 
 
 e. 87, s. 32. 
 
 lili. All affidavits and affirmations I'ecjuired by this Act 
 may be taken and administered by any Judge, Notary PuVjlic, 
 or a Connnissioner or other ]icrson in or out of the Pi'uvince 
 authorized to take affidavits in and lor the High Court or by 
 a Justice of the Peace ; and the ^um of twenty cents shall be 
 payable for every oath thus administered. 57 V. c. 37, s. 88. 
 
 '^'^!l"'f "( t ^'^' ^^^'^^ -^^^ shall not apply to mortgages of vessels regis- 
 
 gages of tered xuider the provisions of any Act in that behalf. 57 V. 
 
 vessels c. 37, s. 84. 
 
 registered. ' 
 
 Who to ad- 
 minister the 
 aflidavits. 
 
Sec. 38. CHATTEL MOIITUAGE.S AND HILLS (M' S.VI.K. Chap. 148. 
 
 346 
 
 Itti, All clmttcl iii()rt<,'iigcs ivlatiiii| to pnijurty within any MortKngeii 
 towiiHliip, city, town, or ineorporutiMl villa;;-*' loniiiii^f part of a "..y^tVu^con- 
 new county, at thiMlatc the prodanuition I'oiiuin^Mhc new county stituted. 
 takes L'ft'cct, shall, until tht-ii' n-iifwal Ijcconics necessary to 
 maintain their force against creditors, sultse(Hient purchasers 
 or uiortjfaifees in ijoo'l faith, continue to he as valiil and 
 eH'ectual in all respects as they would have been if the new 
 county had not been formed, but in the event of a renewal 
 of any such chattel inort^^age after the date the proclamation 
 takes etiect, the renewal shall be tileil in the proper othce in 
 that behalf in the n«!W county as if the mortgage had origin- 
 ally been filed tl>erein, together with a certified copy . iider 
 the hand of the Clerk and seal of the County Court, and no 
 chattel mortgage in force at the said date shall lose its priority 
 by I'eason of its not being tiled in the new county prior to its 
 renewal. .')7 V. c. 37, s. 35. 
 
 iiii. Every penon shall have access to and be entitled to Inspection nf 
 inspect the sevc .m1 books of the C(nnity Courts, containing Q^y^*^'°(-.jj^,jj 
 recor<ls or entrie'j of the chattel mortgages and bills of sale office, 
 tiled; and no j/e.-son desiring such access or inspection shall be 
 required, as a condition to his right thereto, to furnish ihe 
 names of the parties in respect of whom such access or 
 inspection is sought; and all Clerks of the County Courts of the 
 Province! shall respectively, upon demand or request, produce 
 for inspect ion any chattel mortgaq-e, or bill of sale, tiled in 
 their respective offices, oi' of which records or entries are, 
 by law, requii-ed to be kept in such several books of the 
 Countv Courts. 57 V. c. 37, s. :^6. 
 
 117. 'I'he provisions of this Act shall extend to mortgages Mortgage.etc 
 and ,ales of goods and chattels, notwithstanding that such po^"°ggfon° >/ " 
 goods and chattels may not be the property of, or may not be mortgaKor. 
 in the pos-session, custody or control oi" the mortgagor or 
 bargain or or any one on his behalf at the time of the making 
 of such mortgage or sale, and notwithstanding that such goods 
 or chattels may be intended to be delivered at some future 
 time, or that the same niay not at the time of the making of 
 said mortgage or sale be actually procured or provided, or fit uv 
 ready for delivery, and notwithstanding that some act may be 
 required for the making or completing of such goods and 
 chattels, or rendering the same fit for delivery. 57 V. c 37, 
 s. 37. 
 
 38. In the application of this Act the word " ci-editors "•• Creditor.., 
 where it occiirs, shall extend to creditors of the mortgagor meaning of. 
 or bargainor suing on behalf of themselves and other credi- 
 tors, and to any as sjgnee in insolvency of the mortgag or, and 
 to an assignee for the general benetit of creditors, within the 
 meaning of The Act respecting Assignments and Pre/c?'- Rev. Stat. 
 ences by Insolvent Persons, as well as to creditors having °' 
 executions against the goods and chattels of the mortgagor 
 or bargainor in the hands of the Sheriff or other officer. 57 V. 
 c. 37, s. :!S ; 60 V. c. 3, s. 3. 
 
 
 tM 
 
846 
 
 Chap. 148. CHATTEL MORTGAGES AND RILLS OF SALE. SeC. 39. 
 
 " Actual aiid 
 continued 
 change of 
 
 possession," 
 meaninf; of. 
 
 39. The " actual and continued change of possession " 
 mentioned in this Act shall be taken to be such change of pos- 
 session as is open, and reasonably sufficient to attord public 
 notice thereof. 57 V. c. S/, .s. 39. 
 
 
 I 
 1 
 
 t/ 
 
 SubHefnient \Q ]^ mortgage or sale declared by this Act to be void or 
 
 toTaTdate wliich, under the provisions of section 18 has ceased to be valid 
 
 gale otherwise as jigainst creditors and sub.sequent purchasers or mortgagees, 
 
 *'" ■ shall not by the subsequent taking of possession of the things 
 
 mortgaged or sold by or on belialf of the mortgagee or bargainee 
 
 be thereby made valid as against persons who become creditors, 
 
 or purchasers, or mortgagees before such taking of possession. 
 
 .'>7 V. c. 37. s. 40 ; GO V. c. 3, s. 3. 
 
 AGREEMENTS WHERE POSSESSION PASSES WITHOUT OWNERSHIP. 
 
 A(?reemfnt on 41. — (1) In case of an agreement for the sale or transfer or 
 ^eTtv^iaVoUo "i^^'chandise of any kind to a trader or other person for the 
 pafs until pay- purpose of resale by him in the course of business, the posses- 
 l"®**' ''^"^ ,t"^ *''°'^ ^° P*^^^ ^^ such trader or other person, but not the abso- 
 lute ownership until certain payments are made or other 
 considerations satisfied, any such provision as to ownership 
 shall as against creditors, mortgagees or purchasers be void, 
 and the sale or transfer shall be deemed to have been absolute, 
 unle.ss 
 
 (ft) The agreement is in writing, signed by the parties to 
 the agreement or their agents, and 
 
 (})) Unless such writing or a duplicate or copy verifie.l by 
 oath is filed in the office of the County Court Clerk 
 of the county or union of counties or in the proper 
 office in a district in which the goods are situate at 
 the time of making the agreement, and also in the 
 office of the County Court Clerk of the county or 
 union of counties or in the proper office in a district 
 in which such trader or other person resides at the 
 time of making the agreement, such filing to be 
 within five days of the delivery of possession of 
 any of the goods under the agreement. 57 V. 
 c. 37, s. 41 (1); 58 V. c. 24, s. 2. 
 
 (2) In the territorial districts of Muskoka, Nipissing, Al- 
 goma. Thunder Bay and Rainy River the agreement shall be 
 filed in the office of the Clork of the Peace in the district, and 
 in the districts of Parry Sound and Manitoulin in the office of 
 the registrar of deeds for the di?crict ; Provided that if a Clerk 
 of the Peace shall be appointed for the district of Parry 
 Sound or the district of Manitoulin then any agreement 
 requiring thereafter to be filed in such district shaU be filed in 
 the office of such Clerk of the Peace. 
 
 ARreeiiient (3) Such an agieeuient, though signed and filed, shall not 
 
 not to affect -^y^w^ox, purchases from the trader or person aforesaid in the 
 ordinary pur- >■ ^^ v ^ i i • i • 
 chases. Usual course of his business. 
 
 
 Wherf to be 
 tiled in 
 counties. 
 
 Where to be 
 filed iu terri- 
 torial dis- 
 tricts. 
 
 .jm 
 
i I 
 
 Sec. 41 (4). CHATTEL MORTGAGES AND HILLS OF SALE. Chap. 148. 
 
 347 
 
 (4) The provisions of this and the fouf next preceding sec- Seotiona 37-41 
 tions of this Act shall not affect the case of manufactured ggiggof wrt'-n 
 goods and chattels which at tlie time possession is given have marked goods, 
 the name and address of the manufacturer, bailor or vendor of 
 the same painted, printed, stamped or engraved thereon or 
 otherwise plainly attached thereto, nor any goods or chattels 
 where the receipt-note, hire receipt, order or other instrument 
 is filed and for which cases respectively provision is made 
 hy The Act respecting Conditional Sales of Chattels. 57 V. ^ ^49 '" 
 c. 37, s. 41 (2-4). 
 
 STATISTICAL RETURNS. 
 
 42. — (1) Every Clerk with whom instruments are required Returns of 
 to be registered under the provisions of this Act, shall on or chattel 
 before the loth day of January in each year, transmit to the etc., to be' 
 Minister of Agriculture i-eturns which shall set out: made by 
 
 ^ clerks. 
 
 (a) The number of chattel mortgages and renewals, the 
 
 number of discharges, and the number of assign- 
 ments for the benefit of creditors on record and 
 undischarged in the office of such Clerk on the 1st 
 day of January, in the year preceding that in 
 which the return is made ; 
 
 (b) The number of chattel mortgages and renewals, the 
 
 number of discharges, and the number of assign- 
 ments for the benefit of creditors registered in such 
 oflice during the year following the said 1st day of 
 January, and 
 
 (c) The number of chattel mortgages and renewals, the 
 
 number of discharges, and the number of assign- 
 ments for the l)enefit of creditors on record and 
 undischarged in the said office on the 31st day of 
 December in said year. 
 
 (2) The returns shall not include instruments which have 
 lapsed by reason of non-renewal. 
 
 (3) The chattel mortgages and renewals and discharges, and 
 assignments for the benefit of creditors in the said returns 
 shall be classified according to the ses'eral occupations or call- 
 ings of the vendors or mortgagors or assignors as stated in the 
 instruments, and shall show the aggregate sums purporting to 
 be secured thereby respectively. 
 
 (4) The iv curns shall, where practicable, distinguish mort- 
 gages to secure future indorsations or future advances from 
 mortgages to secure an existing debt or a present advance. 
 53 V. a' 12, s. 7. 
 
 m 
 
 ;1 I 
 
r 
 
 i 
 
 348 Chap. 148. chattel mortgages and bills of sale. Sched. A. 
 
 SCHEDULE A. 
 
 {SectiuH 25.) 
 
 KOK.M OF DI.SCHAKGE OF .MORTGAGE. 
 
 
 money 
 
 To the Clerk of the Court vf the of 
 
 I, A. B , of do certify that has satisfied al 
 
 due on, or to gri)\v due on a certain chattel mortgage made by 
 to , which mortgage bears date the day of A.D. 
 
 , and war registered (or m case the mortgage has been renewed was 
 re-registered), in the office of the Clerk of the Court of tlie 
 
 of , on the day of A.D , asNo. {here mention 
 
 the (lay and dats of registration of each assignment thereof, and the 'luinies 
 of the parties, or mention that such mortgage has not been assigned, as the 
 fact ma If be); and that I am the person entitled by law to receive the 
 money, and that such mortgage is therefore di.scharged. 
 
 Witness my hand, tliis day of A.D. 
 
 Signdture of witness, ami state residence\ 
 
 and occupation. J A.B. 
 
 57 V. c. 37, Sched A. 
 
 SCHEDULE B. 
 
 {Section id.) 
 
 Statement u.xhibiting the interest of C. D. in the property mentioned 
 in a Chattel Mortgage dated tlie day of 18 
 
 made l^etween A. 11.. of of tlio one part, and €. i*., of , 
 
 of the other part, and tiled in the otKce of the Clerk of the Court 
 
 of the of , on the day of , 18 , 
 
 and of tlie amoinit due for principal and interest thereon, and of all ])ay- 
 ments made on account tliereof. 
 
 Tlie said C. 1)., is still the mortgagee of the said property, and has not 
 assigned the .said mortgage (or the said E. F. is the assignee of the said 
 Mortgage ))y virtue of an assignment thereof from the said C. D. to him, 
 dated the day of , 18 ,) (of us the case may be). 
 
 No payments have been made on account of the said Mortgage {or The 
 following payments, ami no other, have been made on account of the said 
 Mortgage : 
 
 188(>, January J, Casli received 8KX) 00) 
 
 The amount still due for principal and interest on tlie said Mortgage is 
 the sum of $ computed as follows ; {here giie the computation). 
 
 CD. 
 
 County of \ I, of the 
 
 To wit, I of in the County 
 
 of the Mortgagee named in the Chattel Mortgage mentioned 
 
 in the foregoing (w annexed) statement (or assignee of the mortgagee 
 named in the Chattel Mortgage mentioned in the foregoing [or annexed] 
 statement (as the ca."". matj be), make oatli ami say : 
 
 1. That tlio foregoing (or annexed) statement is true. 
 
 2. That the Chattel Mortgage mentioned in the said statement has not 
 been kei)t on foot for any fraudulent purpose. 
 
 Sworn before me at the"| 
 of in tlie I 
 
 County of 
 day 
 
 this 
 
 18 
 
 "J 
 
 57 V. c. ;17, Sche.1. n. 
 
CHATTEL MORTGAGES AND HILLS OF SALE. 
 
 349 
 
 NOTES. 
 
 Object of the Act. The act is not iiitoiidod to iiiid does not in any way 
 affect tlie validity of tran.sactions as l)ctwecn the parties thereto. Possession 
 \n prima ficio, evidence of ownership ; Pollock & Wright on Posses.sion, p. '2."). 
 It may however often exist without ownership. Tlie law has therefore ])ro- 
 vided safe guards for persona dealing with possessors to protect them against 
 the subsecjuent assertion of title l)v the true owner. Examples of these tuife- 
 
 fiiards are to be found in tiie Coiutitional Sales Act (R. 8. O. c. 149) and The 
 actors' Act (R.S.O. c. 1.50). The present Act is intended to protect two 
 classes of persons ( 1 ) purcha.sers and mortgagees, (2) creditors. Any person 
 who acfjuires liy |)urchase or mortgage a title to goods from a person who was 
 at one. time the owner thereof is entitled to rely upon the visil)le possession of 
 the property l)y his vendor in tiie ab.sence from the appropriate registries of 
 any charge upon that property. The jjolicy of the act requires a lil)eral con- 
 struction of tlie word " creditors." Registration or possession is reipiired 
 manifestly for the jirotection not only of actual creditors, liut of all who may 
 become creditors and this extends not only to judgment creditors, l)ut also 
 those who have not had the ojiportunity of recovering judgment and to those 
 whose claims are not vet due or who have not had time to get judgment ; 
 Clarkson v. McALister"( 189.5) 2.") S. C. R. 90. 
 
 Property within the Act. The provisions of the act extend to all perE.5nal 
 chattels in the possession of the vendor or mortgagor at the time of making 
 the sale or mortgage and to gooils of which he nuiy afterwards ac<iuire posses- 
 sion. 
 
 Exceptions— 
 
 (1) A half interest in a cliattel is not within the Act ; Ounn v. Burgess (1884) 
 
 5 0. R. C8.-). 
 
 (2) Goods in the possession of a wharfinger or warehouseman or in a bonded 
 
 warehouse of the (Xistoms' Department are not subject to the provisions 
 of the act ; Harris v. Commercial Bank (1838) 16 U. C. R. 437 ; May 
 V. (Security Loan and Savings Co. (1880) 45 U. C. R. 100 ; .Tones v. 
 Henderson (188,)) ,3 Man. L. R. 43.3; Commercial National Bank of 
 Chicago V. Corcoran (1884) 6 0. R. 527. It would seem, however, that 
 if the goods should subsequently be taken possession of by the vendor or 
 mortgagor, they would fall within the provisions of the act under s. 37. 
 
 (3) Book-debts are not within the act though assigned by a mortgage also 
 
 covering goods as to which the act api)lied ; Kitching v. Hic'Ks (1884) 
 
 6 O. R. 7.39 ; Thiliaudeau v. Paul (1893) 26 0. R. 385. 
 
 (4) Orowing timber is not within the act ; Steinhoffv. McRce (1887) 13 <'). 
 
 R. 540. 
 
 (5) A term of years is not within the act ; Fraser v. Lazier (1833) 9 U.C.R. 
 
 679. 
 
 (6)JChattel8 of the nature of plant or machinery not structurally affixed to i 
 the freehold as well as those of <t like nature afterwards placed on the 
 mortgaged premises may be comprised in a mortgage of the real estate 
 and will then not be within the act ; Canada Pei'manent Loan and 
 Savings Co. v. Traders Bank (1898) 29 O. R. 479, unless, perhaps, a 
 power is given to sell or take possession of the fixtures separately from 
 the building. Kx parte Barclay \1S76) L.R. 9. Ch. 570 ; Johns v. Ware 
 (1899) 1 Ch. .3.)9. 
 
 (7) (loods to be made or purchased on joint account or under an agreement 
 that as made or purchased they should become the property of parties 
 advancing money to nuike or nurcha.se tiiem, e. g. staves to be made b}- 
 A. from timber purchased with money supplied l)y I{. under an agree- 
 ment that as made the staves were to be B s pi'oj)erty ; Kelsey v. Rogers 
 (1S82) .30 C. P. 024, or bricks to be made by A. and burned with wood 
 supplied by B. on the agreement that as made the bricks were to 
 liecomo B's property; Burnett v. McBeaii (1858) 16 U. C. R. 466. 
 Whether these cases would now be brought within the act by virtue of 
 8. 37 admits of some doubt. 
 
 ■J 
 
 ■,:s 
 
 
350 
 
 ^ 
 
 ^^'.ftfi^ 
 
 
 (<- 
 
 9- 
 
 i 
 
 5«:1 
 
 V 
 
 ■|; 
 
 CHATTKL MORTGAGES AXD BILLS OF SALE. 
 
 (8) Unfinished goods (engines) left in the possession of the vendor under an 
 
 agreement that he siioiUd furnisli them; Hurton v. Bellhouse (18(50) 20 
 U. C. R. 60. 
 
 (9) ^Mortgages of vessels wlien registered under The Merchant Shipjjing 
 
 Act, see sec. 38. 
 
 (10) Assignments for the benefit of creditors. R. 8. O. c. 147. 
 
 A eonvej'ance )r mortgage sub- 
 void if not registered as required 
 
 Persons entitled to the benefit ot the Act, 
 jcct to tlie provisions of tlie act will be 
 thereby as against ; — 
 
 (1) Subseiiuent purchasers or mortgagees in good faith for valual)le con8i<l 
 eration. .So long as tlie purchase or mortgage is real or bona fide, 
 itice of the invalid sale or mortgage will not prevent the subsecjucut 
 
 liurcliaser 
 (18(i0) 19 
 
 or mortgagee obtaining €a goodtitle ; Moffatt v. Coulson 
 U. C. R. 341 ; Marthinson v. Patterson (1802) 19 A. R. 188, 
 
 (2) Creditors, Tliis expression includes not only execution creditors but all 
 
 creditors ; Clarksoii v. McMaster (189")) 2") (S. C. R. 9(). An execution 
 creditor may test the validity of the mortgage by making a sei/\ne of 
 the goods. If there is no execution an action may be brought by a 
 creditor on behalf of himself and all other creditors of the mortgagor. 
 
 (3) An assignee for the benefit of creditors. Simple contract creditors and 
 
 assignees for the benefit of creditors could formerly only take advantage 
 of the act where the instrument was not in the first instance projicily 
 registered. Where a mortgage ceased to be valid for want of a jiroper 
 renewal neither an assignee nor a simple contract creditor had any 
 Inciix Ktnitdi to have it (leclared invalid ; Tallmaii v. Smart (1894) 2."i (3. 
 R. 0(51 ; but the change on revising the Statutes of section 38 has 
 olmnged the law on that |)oiiit. 
 
 (July -tiilisirpKnt purchasers or mortgagees are entitled to the benefit of the 
 act. A person who would l)e entitled as against the mortgagor to assert a 
 lien ui)on gooils is not entitled to set up the invalidity iiiKler the act of a 
 mortgage made after his lien was ac(iuired ; Hall v. Collins Bay Rafting Co, 
 (1884) 12 A. R. Oo. A person wlio becomes a second mortgagee of goods dur- 
 ing the year while a chattel U'ortgago is in force derives no benefit from a fail- 
 ure to renew the first moitgage ; Hodgins v. Johnston (1880) 5 A. R. 449; 
 Heaton v. Flood (1897) 29 (). R. 87. 
 
 Taking Possession. Until some other person acquires rights in the goods 
 conMiiised in an instrument declared to be void or to have ceased to be valid 
 b-, the act the mortgagor may (subject to the jirovisions of the acts relating to 
 fraudulent conveyances and preferences) confirm the title of the purchaser or 
 mortgagee either by delivering possession or by executing a new mortgage or 
 conveyance. As against the bargainor or mortgagor, po8.session may also lie 
 taken without his consent and such taking of possession will be effective to pre- 
 vent the bargainor or mortgagor fi'oin conferring upon any subse(juent pur- 
 chaser or mortgagee any title to the i)roperty which would confer any right to 
 take advantage of any of the ])rovisions of the net. It was formerly held that 
 such taking of possession in inil/inn would also bo effective as against all cred- 
 itors who had not, at the time of such taking of possession, executions in the 
 han<ls of the proper sheriff'; Parkes v. St. George (1884) 10 A. R. 496 ; Banks 
 V. Robinson (1888) 15 0. R. 618 ; Ross v. Dunn (1889) 16 A. R. 552, and this 
 notwithstanding the provisions of s. 40 ; Oillard v. Bollert (1893) 24 O. R. 147, 
 but a different view now prevails; Clarkson v. M'^Master (1895) 25 S. C. R. 
 <lt6, aii<l the taking of possession will not make the instrument valid as against 
 any creditor of the bargainor or mortgagor who became such before the taking 
 of possession ; Wood v. Hriiiit (1896) 32 C. L. J. 775, A taking of ixjssession 
 
 to be effective must be actual and continued and not merely formal, iitlicr- 
 wise 8ubse(iuent purchasers, mortgagees or creditors may ac(piire the .same 
 rights as if possession had not been taken ; Heaton v. Flood (1897) 29 O. R. 
 87, The taking of possession either with or without a new delivery by the 
 bargiinor or mortgagor will not defeat the rights of a purchaser or mortgagee 
 to whom a conveyance or ?.iortgage has i)een made between the time of the 
 original transaction and the taking of possession ; Marthinson v. Patterson 
 (1892) 19 A. R. I8S, and this even thougli the subsci(iient conveyance or mort- 
 gage may not have been validly registered ; ib. per Burton and Maclennau 
 .r.T, A. Prior to the revision of the statutes in 1897 a mortgage which had 
 
 ; 
 
CHATTEL MORTGAGES AXD BILLS UF SALE. 
 
 851 
 
 ceased to be valid for want of renewal was not declared not to lie made valid 
 bv the sabse(|uent takiinj; of ))ossession ; Heaton v. Kl(Jod (IW)7) iJ!) O. R. S" ; 
 but in the revision h. 4u was amended \>y inserting the words "or which under 
 the provisions of s. 18 has ceased to l)e valid ", and creditors liave therefore 
 tlie same riglits now as against every document witliin tlie act whether void 
 (('/ iiiifio or which Inus ceased to be valid for want of renewal, or it would seem 
 which had bec(jnie void after the permanent removal of thi^ cliattels by reason 
 of non compliance with sec. 17. 
 
 Sale by Mortgagee under Invalid Mortgage. It was held in Marker v. Leeson 
 (1SS2) 1 (). K. 114 that a sale l)y a mortgagee with the consent of the mort- 
 gagor un<ler a mortgage which iiad ceased to be valid for want of renewal 
 would not confer a gooil title as against creditors ; In Banks v. Robinson ( 18S8) 
 15 O. R. 018, 024 it was sai<l that this decision slioidd not be followed 
 having regard to Cookson v. Swire (1S84) !( Ap)). ('as. dXi and McLean v. Hell 
 (18H4) 5 Rnss. &(;. ]:1U. and in Meriden Brittania Co. v. Hraden ()8!)4) 21 
 A. R. 3.V2, it was held that a creditni' coulil not assert any right to the goods 
 as against such a pinchaser, Li C'larkson v. McMaster (189o) 2.5 IS. C. R. 96, 
 where tlie point did nut, however, arise. Strong C. .T. .said, ]). 103 ; " In the 
 case of Barker v. Leeson the learned Chancellor of Ontario delivered a judg- 
 ment which i.i my opinion contains not only a correct construction of the 
 Statute, but also a sound exposition of tiie ])olicv of the law, and the intent of 
 the legislature in enacting it", and it would appear that such a ."ale can only 
 be supported as against credit(jrs, if the mortgagor were a con.senting party, 
 and it was made before an e.xecution had been placed ni tlie SherifTs hands ; 
 •see Heaton v. Flood (1807) 2i) O. K. 87, 94. 
 
 Untruth Of Affidavits. In many cases it has been said that an instrument 
 was not within the act because the transaction was sucli that the allidavit of 
 hoiKi /(V/<•^• could not trulv be made ; Baldwin v. Benjamin (18.')8) 10 U. tj. R. 
 o2 ; Walker v. Niles (1871) 18 (Jr. 210 ; Taylor v. Ainslie (1808) 19 C. 1". 78 ; 
 Connell v. Hickock (1888) l.l A. R. olS. 'ri'ie trutii or untruth of the affidavit 
 is however important only as liearing on the i[ueslion of fiaurl or »(((/'< //(/cs. 
 The untruth of the affidavit if it is formally in confoiiiiity with the .Statute 
 gives no ground for avoiding the instrument; Marthinsun v. Patter.son (1892) 
 19 A. R. 188; .Martin v. Samiison (1890) 24 A. R. 1 ; Hamilton v. Harrison 
 (1881)40 C. (/'. Ri. 127, iniless the instrument is uudei- ss. 7 and 8 relating to 
 future advances or endorsements, when the affidavit must state the true con- 
 sideration ; Barber v. McPherson (1886) 13 A. R. 386. - — 
 
 Trustee. A perso\i to whom a mortgagor is ncjt indebted may take a mort- 
 gage for the debt oi another person or corporation, althougli the trust for such 
 other person or corporation is not disclosed on the instrument, and if he makes 
 the necessarv affida\it the mortgage will, in the al>scncc of imi/'i ti</fx, be good ; 
 Light V. Ha-.vley (1897) 29 (). R. 25 ; Brodie v. Ruttan (18.-)8) Hi U. C. R. 207. 
 One partner may take a mortgage for a firm debt ; Hoblis Hardware Co. v. 
 Kitchen (1889) 17 O. K. 303 ; Ro.ss v. Dunn (1889| 10 A. R. .j.")2. 
 
 Act to be Strictly Construed. The act is to be strictly construed. It deals 
 with transactions which may be perfectly lioiKt tidi and honest, and imposes 
 certain restrictions upon them. An Act which, however salutary, may have 
 the effect of taking away rights of projierty honesth' acipiired, must be con- 
 strued strictly : Brantom v. (Jriffiths (1876)1 C. P. 1)^349 ; (iough v. Everard 
 (1803) 2 H. & C. 1 ; Kraemer v. (Jlass (1800) 10 C. P. 475. 
 
 Date of Filing. The instruments must be registered v.-ithin five day.s from 
 their execution, i. e., exclusive of the dav of execution, but iiidusive jf the 
 fifth day thereafter; McLean v. Pinkerton (1882) 7 .\. R. 490. The actual 
 day of execution, not the date the instrument bears is what is to be regarded, 
 so that a mortgage dated March 10th, but not executed till 26tli, may be tileil 
 at any time before the end of March 31st; .MacDonald v. (buint (1899) 35 
 C L. J. 17'2. If the last day should be a Sunday or holiday, the instrument 
 may be Hied the next day the office in which it is to be filed is open. . 
 
 What documents require registration. Every document of the nature ami 
 effect of a mortgage by a party in jios.session of goods, by whatever name it 
 may 'oe called, must be registered. It may be under seal or it may not. The 
 intention must be looked at and if it transfers the goods as security for Jiay- 
 nicnt of a debt, although it may lie drawn up in the f<irm of a promissory not(» 
 or Memorandum of Agreeinent, the eflect is the .same ; it is a Chattel Mortgage 
 and is void unless filed in accordance with this ,\ct ; Hall v. Collins Bay 
 Rafting Co. (1880) 12 A.R. 05. 
 
 / 
 
 I 
 
.'J52 
 
 CHATTEL MORTGAGES AND BILLS OF SALE. 
 
 ■ ^18 
 
 ^ 
 ^ 
 
 
 Where it appeai'H that the tninsiutioii in not witliiii tlie iniscliief intended to 
 lie jnevcnted l)y tiie Act, tlie t'om't will, if poHsihle, uphold the transaction ; 
 Sciiliner v. MaeLareii (188'2) 'J O.R. '270, per Cameron, J,; (ioiigh v. Everanl 
 (lH(i:}) '2H. k C.l ; I'olloek C. 15. at p. 8. 
 
 An agreement to give at some future time a ehattel mortgage must he regis- 
 tered, as though it were in faet a ehattel mortgage already ; see section 11. 
 
 A conditional sale to a trader or other per.son for re-sale falls under section 
 41. ' 
 
 A power of attorney to take possession as security is within the Act; Beecher 
 V. Austin (1871), 21 0.1'. 334. 
 
 Hut a power of attoi-ney to sell at once, and out of proceeds to pay debts, is 
 not within the Act ; Patterson v. Kingsley (1878) 25 (ir. 42.1 
 
 All agreement deehiring the party advancing money the ahsolute owner of 
 goods manufactiued liy tiie lioirower, l)Ut allowing tlie manufacturer to keej) 
 |)ossession and assinne risks of tire or other hi.ss is a mortgage and must he 
 tiled ; Ffowitt v. O/.ow.ski (18.')(i) ."> (ir. .IV). 
 
 A receipt for ])ui(hase money of goods not j-et sei)arated from a larger 
 (puiutitv comes within section 37, and uuist he filed ; Snell v. Heighton (1883) 
 
 I C. & K. 95. 
 
 A Real Estate Mortgage giving the mortgagee the right to .seize chattels 
 that arc not ti.xtures on default in payment nnist he filed as a chattel nu)rtgage 
 in addition to the tiling in the Land Registry Ofhce, for it comes within .section 
 
 II of the Act. Hut as to chattels affixed to the soil, see Shethehl v. Harrison 
 (1884) 13 Q.B.D. 358 ; Bacon v. Rice Lewis & Co. (1897) 33 C.L.J. 080 ; Hoh- 
 son V. (Jorringe (1897) 1 Ch. 182. 
 
 A hill of sale in form absolute, but the intention being to secure a debt must 
 he registered; McMahonv. McDougall (1853) 10 U.C.R. ,399. 
 
 The substance and not the form of the transaction must l)e observed. Where 
 the transaction purported to be a sale followed by a hiring and purchase agree- 
 ment wheieby the vendor agreed to hire the chattels from the purcnaser and 
 to pay quarterly sums as for such time until a certain amount was paid when 
 the chattels were to become again tlie propertj' of the vendor and power was 
 given to the purchaser to tate possession in default of payment, it was held 
 that the transaction was reallj' a cliattel mortgage and void. Re Watson, Ex 
 parte Official Receiver (1890) 25 Q.B.D. 27 ; iMadell v. Thomas (1891) 1 Q. B. 
 2.30. 
 
 (Documents not requiring registration. If the possession of the goods is 
 handed over at the time of the transaction, the Act will not applj'. 
 
 The change of possession must, however, be the most open and complete 
 change that the nature of the goods will admit of. If anything is done secretly, 
 a fraudulent intent maj' vci'y properly be suspected. If the nature of the goods 
 is such that an open and complete and public change of possession is not feas- 
 ible the onlj' safe course is to register the document; McAlaster v. (Jarland 
 (1883)8 A. R. 5, 
 
 / I Documents showing a .sale where the property was not to pass until payment 
 I \ need not be filed as a Chattel .Mortgage, but The Conditional Sales Act may 
 \{ apply ; R.S.O. c. 149. 
 
 Pledges of goods where the goods are handed over as security as in cases of 
 pawn tickets or letters of hypothecation are not within the Act and do not 
 require registration ; Ex parte Hubbard (1886) 17 Q.B.D, G90. 
 
 Qoods situate in a foreign country. A person who gets a good title to goods 
 in the countrj' where they are sitiuite gets a good title everj'where ; Cammell 
 v. Sewell (1860) 5 H. & N. 727 ; Minna Craig Steamship Co. v. Charterecl 
 Mercantile Bank (1897) 1 Q.B. 460, 468. 
 
 Goods owned by foreigners, (loods in Ontario were transferred liy a person 
 domiciled in Micliigan to a person also domiciled there, and it was contende<l 
 that the transfei- being valid according to the laws of Michigan, it could not be 
 attected by the Act, but the Court hehl otherwise ; River Stave Co. v. Sill 
 (1886) 12 O.R. 557. The Court adopted the following statement of law from 
 the judgment of Foster .T., in Clark v. Torbell (1877) 58 N.H. 88, " Every 
 state has entire jurisdi<>tion over all property, personal as well as real, within 
 its own territorial limits, and the laws of the state regulate and control its sale 
 
 
CHATTEL MORTOAGKS AND BILLS OF SALE. 
 
 353 
 
 and transfer and all rights wliicii niaj' l)e att'ecited tliereliy. If ,'. foreignt'i' or 
 citizen of another state send his property within a jurisdiction ditl'erent from 
 that where lie resides lie iMtplie<lly siinniits it to the rules and regulations in 
 force in the country where he ])laces it, Wiiat the law protects it has the riglit 
 to regulate. And if two persons in anotlier state (;hoose to bargain concerning 
 property which one of them lias in a chattt^l not within tiie jurisdiction of the 
 place, thej' cannot expect tliat tlie rights of persons in the countrv where the 
 chattel is will he permitted to he affected hy their contract ; '" see also MartJiin- 
 sou V. I'atterson (1S9I) '20 0. R. 7>2(» ; lit A.K. IHS ; Commercial National 
 Bank of Chicago v. Corcoran (1884) (i O.K. 527. 
 
 Change of Possession. Immediate delivery of the goo<ls followed bj' actual 
 and contiinied change of possession takes the case out of the operation of tin- 
 Act. The delivery nnist take ])lace at the tin\e of tlie comjilotion of tiie instru- 
 ment of transfer, and the transfer-/)!' nnist lliereafter lia\e no possession or t-ou- 
 ti'ol over the goods. The cliange must lie actual and not nu'i'cly constructive, 
 an<l it is not sulKcient if the vendor next day comes hack to h's own apparently 
 as owner, but really as clerk or agent fur the purchaser ; Scrihncr v. Kinlock 
 (188.")) 12 A. R. 307. The intention is to give notice to the gcneial public of 
 the transfer, and any change of possession noticeable by a reasonal)ly ob.ser- 
 vant member of tin; ]niblic will comply with tiic reiiuirements nt the Act. 
 What is sufficient is a i|uesti<iii of fact to be dctermincil according to tlie cir- 
 cunistan('es of each paiticular ca.se; W'aMic v. (Jrangc |18.")!)) 8 C.I'. 431 
 Hcaton V. Flood (18!»7) 2(1 (). R. 87. The jury should find wlicther or not thi 
 change was publi<' and o))en, and then the .Tudj'e sliould decide as a matter of 
 law whether that was sutHcient to dispense witli registration. 
 
 The law is reasonable and looks at all the circumstunci's and what may be 
 ins\>tli<'ient in one case luav be sufiicicnt in anothei' ; Spraggc C. J. O. in 
 McMaster V. (iarland (1882) 8 A. R. ."> saiil "We must look at the nature of 
 the gooils and their locality and the plac'C at wliicli the mortgagee or pui'chasci 
 is to receive them and of what kind of delivery the goods aie eai)al)le." 
 Hut if there is anv question as to the delivery and change of ]>ossession, the 
 instiument must be registered although no further change was under tlie par- 
 ticul.ir (•ircunistanc('s possilile ; Snair v. Smith (1881) 4."> U.t'.R. at p. 1."!). 
 
 A sale by a hnsliand to his wife living and continuing to live with him of 
 the hoiLschold furniture in theii' residence is void under the Act unless tiici-e is 
 a duly registered Hill of Sale ; Hogaboom v. (liaydon (1894) 26 O.R. 298. 
 
 ■1 
 
 What is a Sale. In Conncil v. Hickock (1888) I.T A.R. ol8, Hagarty C.J.O. 
 aiul Osier. 1. A. were of opinion tliat a marriage settlement of goods was not a 
 sale within the Act, and that the intended husband and wife were not a bar- 
 gainor and bargainee i'es])ectively of the goods ; I'atter.son J. A. was of a 
 contrary opinion and Hurton .1. .A. ex])rcssi'd no opinion. 
 
 Description. Tin' descrijition nnist be such that the goods thereby maybe 
 readily known and distinguished, s. 32. It need not be such tliat a straiiger 
 might only with the instrument go and jilace his hand ujiou the goods, but 
 there should be such material on the face of the instrument to indicate how 
 the property may be indentitied if jiroper eu(|uiries are instituted, as foi' 
 instance "all the property now in a certain shop. &c.,"" McCall v. Wollf 
 (188.-)) 13 S.C.U. 130, 13,3. " 
 
 It has been usual to describe a stock of goods asin the store of the moitgagor 
 on a certain street, but thougli this has been generally adopted as a usual and 
 safe description. Chief Justice Hurton in Horsfall v. Boi.s.seau (1894) 21 A. R. 
 ()(i3, 771, said " I do not at all concede that a transfer of "all my stock in 
 trade"' would not bo sutticient," but see Whiting v. Hovey (1880) 13 A.K. 7 ; 
 14 S.C.R. .")1.") ; Williams v. Leonard (1890) 20 .S.C.R. 4(M)." 
 
 A transfer of goods in a certain shop which descrilied the goods as " 22 do/.. 
 Spanish net ; 2."){) yards lilibon" without stating that they were all the goods 
 of tiiat class in the shop and there being no evidence to show that fact, was 
 held to be void, McCall v. Woltl' (188.")) 13 S. C. R. 13(1; "21 milch cows or 
 " 4.">0 oil paintings'" is also insutticient if it does not ajipcar thert^ were no 
 more ; (Carpenter v. Deen (1889) 23 Q.H. I). Mm ; Witt v. Hanner ( IS88) 20 Q. 
 15. 1). 014. " One single buggy "" is insutlicient unless ideiitilicd by locality; 
 Holt V. Carmichael (1878)2 A.R. 039, or in some other way, as "two horses 
 which the mortgagor uses for his omnibus,"' Kitzgerald v. .lohnston (1877) 41 U. 
 (J. R. 440. "One piano. Dominion make Xo. 2773"" is siillicient ; Field v. 
 Hart (189.')) 22 A. R. 4-49. The addition of the locality has in many cases 
 X 
 
354 
 
 CHATTEL MOKTGAQES AND BILLS OF SALE. 
 
 t ^ 
 
 
 r 
 
 I 
 
 savfil what wnulil (itluTwitio he n hail desfription, Imt reliiince cannot be 
 ulaicd >i|)iiii thf iililer casi-.s unless it is shewn that tlit; goofls (iL-scrihcd hy 
 liicality ail- tlif. only onisof the kirid at the particular i)lace. If the goods are 
 iitlierwisi' sullicieiitly do.s<'iiheil an error in the descrii)tion as to their locality 
 w ill he rejected as /((/.«» (/'(/(oy^i/nfO'o ; Accountant Siii)rcnie (jourl v. Marcon 
 (IS!t!l):t(r().R. i.T.; 
 
 I!ul in all eases where the goods iiro descrihed in a general way sncli as all 
 the stock-in-trade of the mortgagor, the class of stock and its locality shouhl 
 he given with such definiteness that doid)t will not exist as to what is really 
 com|iriscd ; Wilson v. Kerr (1,S.")H) ITU.C.R. H)H ; Nolan v. Doiniellv (IH83) 
 4 (). \\. 440 : Mathers v. Lynch (ISti!)) •_>« U.C.I!, •^r>4■ Wliiting v. Hovey (IfSSli) 
 l:? .\.K. 7 : 14 S.t'.H. .")ir)': Thoni.soni v. (,)uirk (ISSSI) IS S.C U. (iO.') ; Williams 
 V. Leonard (ISiKi) '3) S.C.K. 4(Mi. If the class of stock is not mentioned hut 
 the husiness of the mortgagor is descrilied as e.g. druggist, it will lie i)ri'.sinned 
 that the stock is of tlie class usual in that business ; Wilson v. Kerr (lcS,")H) 17 
 I'.f.H. KiS. 
 
 .V coniiilete collection of the eases on description will lie found in IJarron & 
 O'Brien on Chattel Mortgages, 359-378. 
 
 Description of After Acquired Goods, "floods in any store in whicli the 
 mortgagor may aftciwards carLV on business'' is stifficient ; Horsfall v. 
 Boisseau (IS94)"21 A.R. (MiS ; see Milligan v. Sutherland (ISDO) 27 O.R. 233. 
 
 Fixtures. A fixture may be defined as an article which, though naturally a 
 chattel and niovcalile, lias becoTUc part of the freehold by being anneNcd actually 
 or constructively' to thi; soil as j)ait thereof, and thus iiv apal)lc of transfer 
 ajiart from the frceliold itself. 
 
 Tlie general nilciif law is that every arli'^Ie atiixcdto the soil, either directly 
 l)y lieing permanently let into, or indirectly by nails or screws to something so 
 l)ermancntly let into it is to bo considered a fixture or part of the freehold 
 itself, passing with a grant of the laud to the grantee uidess s])c('ifically 
 excepted in the grant itself. In the same way every article not so afhxed to 
 tile soil is ))rima facie a chattel, and does not pass with a grant of tlu^ land 
 ludess tlie grant specifically provides for it. Minhinnick v. Jolly (IH97) 
 •2!) O.R. 23S, affirmed on"ai)i)eal; S,") C. L. J. 108 ; Carroll v. I'iovincial 
 Natural (ias Co. (IHiMi) 26 S.C.R. 181. 
 
 It is often stateil that the (|uestion whether an article is or is not a fixture 
 ilejiends altogether on the intention of the parties at the time of the annexa- 
 tion. To gather the intention \ve must consider: — 
 
 (a) The nature of the article annexed. 
 
 (b) The relation of he party making the annexation. 
 
 (c) The structure and mode of annexation. 
 
 (d) The purpose or use for \vhich the annexation has been made ; Haggart 
 
 y. Town of Rraniptoii (1897) 28 S.C.R. 174; Holland v. Hoc Ig.son 
 (1872) L. R. 7C.P. 328. 
 
 Where machinery or other chattels are sold subject to a lien for the purchase 
 money tinder the Conditional Sales Act, it was held in Hobson v. (iorringe 
 (1897K 1 Chy. 182, that the mortgagee of the land without notice of a lien 
 could hold the machinery against the vendor ; but our legislature in 1897, by 
 cap, 14 sec. 80, appear to have intended to provide that the mortgagee must 
 first pay oH' the lien of the manufacturer, Imilor or vendor. This section has 
 not yet been discussed in the Ccmrta. 
 
 Where a mortg.age of land includes also the machinery or other fixtures it is 
 not necessary to register the instrument as a Chattel Mortgage, because the 
 fixtures areas much realty as the .soil itself, Sheffield y. Harrison (1884), 15 
 (}. 15. 1). 358, unless, perhaps, po\ver is given to seize or sell them separately. 
 Ex parte Barclay (1874) L. R. 9 Ch. 576 ; Jones v. Ware (1899) 1 Ch. .359. 
 
 But a mortgagee who, to make himself doubly secure, takes a chattel mort- 
 gage on the fixtures is not ju'ecluded from contending that they also pa.ssed to 
 iiim luider his land mortgage; Stevens v. Barfoot (1886) 13 A. R. 366, at p. 
 369. 
 
 A chattel moitgage on fixtures given prior to a land mortgage gives the 
 chattel mortgagee a good title as against the subsequent mortgagee of tlie land 
 only when the latter has actual notice of the chattel mortgage ; Bac'oii v. Rice 
 Lewis & Co. (1897) 33 C.L.J. 680 ; Hose y. Hope (1872)22 C. P. 482 ; Stevens 
 V. Barfoot, supra. 
 
CUATTEL MORTGAGES AND BILUS OF SAKE. 
 
 855 
 
 If the owner of ilmttels nimoxes tliciii to anollier person's lanil on whieli ho 
 is a trespasser, he cannot afteiwards remove them against tiie will of the o.vner 
 or mortgagee of the land, but if chattels are anncxeil to land \>y a stranger and 
 wrongdoer without the consent of tlie owner, the latter iloes not lose his title 
 to them, nor can the owner or mortgagee of the land retain possession of them ; 
 Stevens v. Harfoot (lS8(i) V.i A. R. HGO. 
 
 AffldavitB. For registration two aliidavits are recjuired, the athdavit of 
 execution and the affidavit of liona tides. Tlie atliilavit of execution must lie 
 made \>y an attesting witness, that is, \>y one who has himself signed the 
 document as a witness to its execution. In case of chattel mortgages the com- 
 mon form of such atlidavits is not sullicient, for the actual ilate of exeeutionl 
 nuist be inserted, hut it is otherwise as to a Hill of Sale. A ])arty to th(> in.stru- * 
 ment cannot he a witness to it also; Seal v. (Jlaiidge (I.S81) 7 <i>.li. I>, oH) ; 
 hut should the mortgagee lie autliorized to take alliilavits the fact that the 
 athdavit is sworn before him \> ill not invalidate the mortgage ; Inch v. Simon 
 (18i»8), 1SC.L.T. ;U; 12 .Man. L.R. 1. 
 
 The atiidavit of l)o)»v tiiles is a more complicated and more dangerous one. 
 It is usually tlie tiri.t part of a document investigated for Haws by a person 
 wishing to avoid it. The alHdavit may be made by the nuirtgagee if tliere is 
 only one, or by one of them if there are two or more, or l)y a j)ro])ei'ly 
 ap))ointed agent who knows all the facts coiniected with the taking of the 
 mortgage. Wliere there are two or more mortgagees this agent must be 
 appointed by all and not oidy by one. The ai)pointnient must be in writing, 
 giving authority either to take a particular mortgage or bill of sale or mort- 
 gages or convejances geneially, see s. ;^1. 
 
 Where the mortgagee is a cor[)oration the atiidavit must be made by either 
 the president of the company or by an agent so aj)pointed. All otlier oHicers 
 of the company are merely executive, but the ))resi(lent stands on a higher 
 footing and acts directly and not by delegation. The mortgagee lieing a cor- 
 poration cannot make an atiidavit in atiy other way than by its chief ollicer or 
 president and therefore it must be accepted ; Bank of Toronto v. MacDougall 
 (ISGo) 15 C. P. 475. 
 
 The affidavit must state "(1) that the mortgagor therein named is justly 
 and truly indebted to the mortgagee in the sum of (naming tlie amount ) men- 
 tioned in the mortgage ; (2) that the mortgage was executed in good faith and 
 for the express purpose of secm'ing the payment of nioiiej' justly due or 
 accruing (luc and not for the purpose of protecting the goods and chattels men- 
 tioned therein against the creditors of the mortgagor, or of preventing the 
 creditors of such mortgagor from obtaining payment of any claim against him." 
 This wording shonhl be followed strictly worci for word, and when an agent is 
 making it must also state that he is aware of all the circumstances c;onnected 
 with the sale (or mortgage), s. 10. 
 
 To leave out one of the clauses or part of one would invalidate the whole instru- 
 ment. The consideration, particularly, must be stated with great strictness and 
 accuracy ; Mclntj're v. Union Bank of Ijower Canada (1885), 2 Alan. L. Rep. 305, 
 and even qualifj'ing the statement by saying §1,000.00 or thereabouts would 
 probably avoid the mortgage ; Knox v. Meldruni, Dean, Co. J. (not reported). 
 But the mere fact that the mortgage states a wrong consideration is not alone 
 sufficient to avoid the instrument ; it is only evidence for the jury to consider 
 whether fraud or no fraud; Marthinson v. Patterson (1892) 19 A. R. 188; 
 McGee V. Smith (1860) 9 C P. 89 ; Parkes v. St. George (1884) 10 A. R. 496 ; 
 Hamilton v. Harrison (1882) 46 U. C. R. 133 ; Martin v. Sampson (1896) 24 
 A.R. 1. 
 
 The words of the section " due or accruing due " should be used in all cases 
 whether the money is already due or only comes due in futnro, as they are 
 meant to cover all cases; Squair v. Fortune (1860), 18 U. C. R. 547. 
 
 Should the words " or accruing due" be left out and the affidavit state 
 simply that it is to secure "a debt due " and the facts show that all the money 
 is really past due, then the omission will not invalidate the instrument but 
 the mortgage itself caniuit be looked at to rectify a mistake ; Midland Loan 
 Co. v. Cowieson (1891) 20 0. R. 583; Farlinger v. MacDonald (1881)45 
 U.C.R. 233 
 
 The omission c)f the letti.'r " s," leaving cieditors in the singular, is fatal 
 where tlie affitlavit is rcipiired to state that it is not for the pm'pose of pre- 
 venting the creditors of the mortgagor from obtaining payment ; Harding v. 
 Knowlson (1859) 17 U.C.R. 564 ; Nisbet v. Cock (1870) 4 A.R. 200. But the 
 
s 
 
 i 
 % 
 
 ^'1 
 
 356 CHATTEL MORTGAGES AND BILLS OF SALE. 
 
 Hingular inoitgiigoi- niaj' be used instead of tlie plural mortgagors, and " liiiii " 
 niav be used instead of " tliein," provided tliey liave both been specially 
 mentioned and <lescnbed as mortgagors in the first part of the affidavit ; Far- 
 linger V. MacDonald (IHSl) 45 U.C.H. '233 : Tyas v. MaoMustcr (IS.W) 8 C. I*. 
 449 ; Bertram v. Pendry (1877) 27 t'.P. 371. 
 
 Anotlier apparently insignifieant though fatal error is the omission of the 
 last word " him " of the allidavit, and stating that the mortgage was not exe- 
 cuted for the purpose of preventing the creditors of such mortgagor from 
 
 obtaining payment of any claim against ." The Courts cannot till 
 
 up the blank, and are comp' Hod to avoid the whole instrument, althougli 
 they may feel certain the oinis.ion was a mere clerical error ; Nisbet v. (Jock 
 (1879) 4 A.R. 2(MJ ; lie Andrews (1877) '2 A.R. 24 : Morrow v. Korke (1877) 3!t 
 U.C.K, 500. 
 
 Under see. in cases of Bills of Sale, if the affidavit is made by an agent, 
 the authority or a copy nnist be attached to the instrument ; in case of a 
 Chattel Mortgage under see. 3 actual attachment is unnecessary. All that is 
 recpiired is that tliey be filed together. 
 
 It has lieeii lield that where the words Iximi Jiile were translated and the 
 affidavit read that the Bill of Sale was executed in goo<l faith and for valiialilc 
 consideration, Ac, the instrument is void ; Bovnton v. Boyd (18(13) I2('. I'. 
 337 ; Ai'nohl v. Rol)ertson (18.")<J) 8 C.I'. 147. 
 
 Where, however, an expression is exchanged for one more comprehensive, 
 the affidavit is still good and the instrunient safe; for example, " goods and 
 chattels'" mav give place to " estate anil effects," tlie latter clause includinj; 
 the former; Slason v. Thomas (18(i4) 23 U.C.H. .305. Sec. (i does not gi\c 
 ])ermission to file a copy of tho Bill of Sale instead of the original as is doni,' 
 by sec. 2 in tlie case of ('hattcl mortgages, yet some judges have l)ecn of tlie 
 oi)inion that the filing of a copv was sutHcient ; Harris v. Comniercial ISaiik 
 (IS.-)!)) 1() U.C.R. 437 ; Perrin v. Davies (1800) 9 C.P, 147. 
 
 In affidavits in Mortgages given for future advances and to secure endorse- 
 ments, the true nature of the transaction nnist ))(• veiitied l)y swearing to it. 
 In eacii case the wording of tlie allidavit should follow tlie wording of the sec- 
 tion relating to it. But if a mortgage is partly to secure an existing or newly 
 created debt and partly to secure future advaiu'es or an endoisemeiit, tlie 
 affidavit by the moitgagee may bo a combination one putting in the special 
 clauses retpiired in adclition to the usual ones mentioned in sees. 2 ;ind 3 ; 
 Hughes v. Little (1880) 17 Q.B.D. 207. 
 
 Where the words of the affidavit in a mortgage to secure endorsements wore 
 " for the exuress imrpcme of securing nu the said mortgagee against /im 
 endorsement of " proinissoi'y note for or any renewal of the sairl recited pro- 
 missory notes," the attidavit was held to lie vague and incomplete and to 
 aver and ideiitifv nothing certain in itself, or made so by refercnee to anything 
 else; Bohlrick v. Ryan (1890) I7A.R. 2.-)3; but an afli<lavit that tlie'mort- 
 gage is " for the express ])urpose of securing me the said mortgagee against 
 the ])ayment of the amount of such notes indorsing liability for the said 
 mortgagor" does not render the mortgage void ; Rogers v Carroll (1S99) 19 
 C.L.T. 110. 
 
 Future Advances, ('hattel mortgages to secure the payment of money to bo 
 advanced or gooils to be supplied at some future time to enable the mortgagor 
 to enter into and carry on his business are roiiuired to set forth the forms, 
 nature and effec^t of the agreement for tho advances, which agreement must be 
 in writing. Tlie time allowed for repayment must not be longer than one 
 year from the date of tho agreement. 
 
 The mortgage is not invalid because it recites the purpose to be " to enable 
 the mortgagor to cairy on business," So long as the intention is sufficiently 
 clearly shown in lioth agreement and mortgage to lie the assistance of the 
 mortgagor in his ertbits to carrv on his business, the Statute is satisfied. 
 McLean v. Pinkerton (1882) 7 A.li. 490 : (ioulding v. Deeming (1887) 15 O.R. 
 207; Risk v. Sleeman (1875)21 (ir. 251 ; Barber v. McPherson (1880) 13 
 A.R. 350, at j). 3.W. 
 
 An agreement to repay on demand is not " within one year " ; see Hothei- 
 ington V. Groonie (1884) 13 Q.B.I). 789. The agreement need not follow any 
 form .so long as the intention is stated plainlv and unambiguously, and it nia\ 
 be cither under seal or not at the option of tlie parties ; Flory v."Donn\- (18.52) 
 7 Ex. 581, 21 L.J. Ex. 223; Patterson v. Maughan (1877) 39 U.C.R. .379; 
 
CHATTEL MORTGAGES AND BILLS OF S4.LE. 
 
 357 
 
 ll.ilfpi'iiiiy V. Poiiiiixk (IN74) :W U.C.H. •i-JO. Aiiagti'i'ment t<i iKlvaiu'c ,i;>m.<1h 
 is witliiii tlie act; Sutlici land v. Xixon (LSCiii) •_>! L'.t'.lt. (171 ; (JduldiiiL' v. 
 Di'cniing (ItSHT) l."i (). |{. -jdT, •_>!,•{. 
 
 Securing Endorsements. A mortgagee t(i protcot a Huri'ty dp nii (-"lulorser 
 iiii(i ipiily sutliiieiitly idi'iitifv the liaMlitv which is inti'iidt-d to lie secured 
 against; Knilmrv v. West (IHHS) lo A.H.':}r)7; HarU'r v. Md'heison llS.S(i) 
 13 A. R., .'150. Only such liabilities as niatiiie within one year finm making 
 the mortgage can he secured against ; .May v. Security, Loan anil Savings ('o. 
 (1HSI)4") U.C.rt. llHi, and the fact of such maturity must lie shewn on the 
 face of the mortgage : Ontario Hank v. Wilcox (1S7S) ".i U.C. |{. 4(i() ; Kough 
 V. l^ice (1S77) -7 (-.1'. H()!>, hut the fact that renewals may appear to lie I'on- 
 Icmplated liy tht^ moitgagc which may extend the liability" licyund a year will 
 not invalidate the mortgage where they have not lieeii agrec'il upon or which 
 the iiarties-are not hound to make; Kmliury v. West (IMHH) iriA.!;. ;i."i7. The 
 mortgage mav covei' past or concmrcnt liut not future endorsements ; Mathers 
 V. Lynch (lS<i!)) -is L.C. K. ;r)4. Where the mortgage covers only renewals 
 which lieconu; payable within the year, a statement in the atiidavit that it is 
 made to secure the mortgagee against " his liability by reason of the promis- 
 soi'y note .... or imi/ /iiliin iiofi- nr iiofi-i if/iii-/i Ik imiii < iiilorsv for Ihi 
 itrromiiioiliitioii n/tlip mor/ii'ii/or, irlitf/nr us r< inifiilx of tin xiiiil iiofix or other- 
 irixc," will not affect its validity as to all renewals which mature within the 
 year; Driscoll v. (ireen ( 1883) iS A.U. .SWi. 
 
 Authority of Agent. The authority lo an agent uuist be in writing, but not 
 necessarily under seal, Otiiccrs of iiicorporated Companies, exccjit the Presi- 
 dent himself, reipiire written authority to enalile them to make the atiidavit ; 
 Hank of Toronto V. McDougall (I8(i.-i)" l,"i CI'. 475 ; Freehold Loan and Sav- 
 ings Co. v. Hank of Commerce (1880) 44 U.C'. K. 284; (irecne v. Castleman 
 (I8!t4)i-)0.K. 11.3. 
 
 The authority itself or a copy must be tile<l at the sunu.' tim<' as the mort- 
 gage, and in case of a Hill of Sale undei' sec. it is iwiuired to be attached to 
 the instrument. Under sections 2, 7 and 8 attaching is not reipiircd. 
 
 Renewal. A nuirtgagec nnist disclose under oath <ince every ycai' the state 
 of the account with his mortgagor. If he fails to ilo, his rights are piist|ioned 
 to the rights of othei- creditois of the moitgagoi' and to subse(|ucnt purcliasers 
 or mortgagees in good faith for valuable consideration. The renewal must be 
 tiled prioi' to the expiration of one year from the date the mortgage was filed, 
 and not earlier than thirty days before said year exjiiics, so that if a mortga;;e 
 is filed on lOth April, l8iM), tiie renewal may be tiled any I'unv between 10th 
 March and !)th April, I'.IOO, or even on loth A])ril if tlie hour of tiling the re- 
 newal is earlier than the hour of tiling the original mortgage. As the Clerk is 
 rc(|uired to endorse on the mortgage the houi- of tiling, this can easily bo 
 proved ; Thompson v. (,>uirk (188!)) bs S.C.K. (iit.'i, I N.W.T.K. 88 : Weat'y v. 
 Fowler (18,j.S) 10 U.C.H. .382 ; McMaitin v. McDougall (18.-)3) 10 U.C.H. 3i)0. 
 
 The renewal must be filed in the cotuity where the goo(Ls are ut the time of 
 renewal, .so if they have been moved (luring the year from that couutj' to 
 another, tiling a renewal in the old county will not suffice. The mortgagee to 
 preserve his lights, must first, within two months of the removal file a certi- 
 fied copy of the mortgage and renewals to date as retpiirod by sec. 17, and 
 thereafter file his renewals in the new comity only. 
 
 The statement is reijuired to exhiliit the interest of the mortgagee in the 
 property claimed bj- virtue of the mortgage, and to show the amount still due 
 for winci])al and interest thereon, and all payments made on account 
 thereof, and the affidavit merely veiifies the truth of the .statement and re- 
 afilrnis the ab.sence of fraud. The two aie to be read together as one instru- 
 ment (sec. 20) and if together they give the necessary information propeily 
 verified the statute is satisfied and the n: . tgagc remains in force ; Sloan v. 
 Maughan (1«78) 3 A.R. 222 ; Barber v. XFaughan (1878) 42 U.C.R. 134. The 
 aliidavit must swear that the statement is •' true " not that it is "correct" or 
 " exact." " True " has a larger meaning and the narrower word will invalidate 
 the renewal ; Reynolds v. Williamson (187")) 2r)C. 1'. 4!). 
 
 The statement must be substantially correct and accurate, but a sligiit 
 inaccuracy is not enough to vitiate it. A failure to give credit for a payment 
 of $2.00 has been overlooked ; Beers v. Waterlmrv (1801) S Bosworth (N.Y.) 
 .396 ; Patter.son v. (iillies (1873) 64 Barb. (N.Y.) o63. 
 
358 
 
 CHAITEL MOUTGA(}F:s AND Bff.LS OF SALE. 
 
 CL 
 
 The affidavit to the renewal iiiaj' In* iiiado hy cither mortgagee or agent, or 
 if tiic niortj;agf Iuih Ix'fii asMigiii'il, then hy the assignee or ageiix, in the winie 
 niaimcr as the alhihivil to tlie oii^inal mortgage, oi' if the niort^jagee or assignee 
 lias (lied, his next of i<in or execntor or administrator may maivc the athdavit, 
 sec. v^J. If maih: liy an assignee (other tnan nn(K'r iriNolvciKv) all assignments 
 to |)rov(' his title nnist he first filed. Mortgages under sections 7 and S nuist 
 fall due withio one year from date, lait altliough they may fall dne they may 
 not lie paid, and it is then necessary foi' the mortgagee to tile a renewal. A 
 renewal of a moitgage seenring endorsements will he efl'ective to contiinu' it in 
 force as to only such paper as matured within the year', imd paper or I'enewals 
 of paper maturing heyond the year will lie excluded ; Turner v. Wills (l«t)2) 
 
 II t'.i'. :«iti. 
 
 If security is taken in the form of an ahaolute bill of sale dofeasahle on pay- 
 ment, it must he renewed the same as if it were in form a mortgage, or the 
 grantee's rights lapse ; Mc.Maitin v. .McDougall (IS,".;}) 1(1 U.t.'.K. 3!M». 
 
 l'"ailui-e to reiu'w has the ellcct of |)ost])oni|ig the mortgagees rights to the 
 rights of all creditors of the mortgagor, whether they hecame creditors hefore 
 or after the time for renewal and also to the rights of suhsequont purchasers or 
 mortgagees in good faith for valuahle consideration. 
 
 By suhseiiiu'nl pinchascrs oi- mortgagees is meant lliose who l.eeome such 
 after the time for the renewal had expired ; Hodgins v. Johnson (I8H(») "> A.R. 
 44!(, Burton .J. A. p. 4."i,). 
 
 Krrors in the account may he corri-ctcd within two weeks of their discovery 
 hy tiling an amended statement and aflidavit under sec. I!). 
 
 The renewal for each year nuist ho com])lete in itself, and not refer to former 
 renewals to explain or supplement the account; Kerr v. Roberts (1S!)7) .S.S 
 (J.L.J, li!).") ; the fact that after a renewal statement is made and sworn and 
 before it is filed th<^ mortgage is assigned, will not necessitate a new state- 
 ment to he made and sworn hy the assignoi' ; Daniels v. Daniels (1808) 
 •IS) ( ). U. 4!t;). 
 
 Seizure. Because at the best, chattel mortgages are a ])rocarious kind of 
 security, the form of chattel nu)rtgage in general u.se dilVers radically from the 
 usual form of mortgage of land. The land mortgage u.sually provides that the 
 mortgagor shall not be distnrl.ed in the po.ssession until he nuikes default. 
 This proviso is generally omitted from chattel mortgages, so as to give a mort- 
 gagee an opp<n-tunitj' to ])rotect himself hy seizing or taking possession of the 
 goods at any time he thuiks his security in danger ; Porter v. Flintoft (18,)7) 
 (i C.l'. 240 ; Bingham v. Bettinson (187!)) 30 C.P. 438. It is usual in addition 
 to omitting this re-demi.se dau.so to provide specificially that in ca.so of default 
 in payment or performance of othei' covenants or in case of any one of numer- 
 ous events endangering the security, such as insolvency, issue of a writ, or of 
 an execution or in case of an attempt to remove the goods and generally in case 
 the mortgagee should at an^- time believe himself unsafe or insecure, or at an\' 
 time lie may deem it best for his safety so to do, he nui\' at his option consider 
 the total mortgage money due and payable and may .seize and .sell the mort- 
 gaged goods. The belief of the nua'tgagee whether reasonable or otherwise is 
 all that is neces.sarv to justify acting upon such a clause ; Francis v. Turner 
 (lS9.-))-2oS.C.R. 110. 
 
 A mortgagee niaj' discover shortly after taking his mortgage that bj' reason 
 of some clerical error or neglect of some formality there is danger of his mort- 
 gage being void as against creditors. He may then invoke the aid of the 
 above clause ; Parkes v. ISt. (Jeorge (1884) 10 A.R. 49() ; but a creditor who 
 has become such before the mortgagee took possession does not lose anj' right 
 he has in the goods merely by the mortgagee taking possession, sec. 40. 
 
 If there is a re-demise clause, giving the mortgagor the right to possession 
 until default, the mortgagee cannot take possession without the mortgagor's 
 consent or ho will nuike himself liable to the mortgagor for trespass. 
 
 But where the re-demise clause is left out the property is in the mortgagee, 
 and he can assert it at any time by taking possession either with or without 
 the mortgagor's consent; Smith v. Fair (1885) II A.R. 763; Whimsell v. 
 Giftord(1883)3 O.R. I; McAuley v. Allen (1870) 20 C.P. 417; Samuel v. 
 Coulter (1874) 28 C.P. 240, and with such a nuntgage the mortgagee is entitled 
 to follow the goods and take then\ from a pledgee or any other transferee who 
 has become such without his consent ; Bissett v. Pearce (1863) 28 N.Y. 252. 
 But he cannot destroy a lien implied from the necessities of the property, such 
 as necessary repairs to articles in constant use by the mortgagor ; Williams v. 
 Allsop (186"l) 10 C.B.N.S. 417. 
 
CHATTEL MORTOAOES AND BILLS OP SALE. 
 
 809 
 
 lor 
 
 niu 
 
 Jit, 
 Jits 
 list 
 Tn' 
 A 
 Jill 
 Ills 
 
 (\ - 
 
 ill- 
 
 If the iiiortgagi'e takes |K)MH»,'SNii)ii licfiire ilcfaiilt liccauMc \w fvvU liiiiisi'lf 
 iiiM<M'iiiu, 111' iiiiiHt retain possfssidn of the gnods hd as nut to destroy tlie iiiort- 
 gatfois possiliility of icdcciiiing tlieiii, unless tlieii' is a rlause allowing liiiii to 
 sell l)efore default if he deems liiinself insecure or unsafe ; Smith v. Kair( 1HS."() 
 
 II A. H. 7<iM : llingliam v. H.-ttinsoii (|HK(l):t() ('. I'. 4.SS. nor can he allow 
 tli(^ mortgagor to re-assume possession ,is his agent. The taking possession to 
 he elleetive must he an aetual and eontiiilled eliange of |)OKsession ; Hoatoii y. 
 Flood(l«!)7)lliH). K. 87. 
 
 When th(! murtgagco Iirh authority to take iKissession if tbe mortgagor 
 attem])ts to sell or di.sjMise of or in any way jiart with the possession of the 
 goods or remove them out of the limits provided, Imt power is reserved to sell 
 
 III the ordinary course of laisiness, if tlie mortgagor attemjits to part witli the 
 goods to satisfy an existing delit, the mortgagee can at once proceed, allhollgli 
 nothing is due under tile terms of the mortgage ; W'himsell \. (lillbrd (iHS.Sl 
 :M). |{. I. 
 
 .\s regards the goods tiieiiiselves, if they have lieeii disposeil of wrongfully 
 liv tlie mortgagor to an innocent purchaser, the nicatgagce ( aniiot proceed 
 against tlie purchaser without first (lemanding the gooils : imt if the mortgagee 
 has consented, even vei)>ally, to any disposition of the goods, he is estopped 
 fnaii proceeding in respect of them altlKuigh the inurtgage calls for a written 
 consent ; L(»icks v. Mctiloy (187!!) 'ill ('. I'. (W. 
 
 A clause prohiliitiiig sale will not prevent a trader or merchant selling in 
 the usual coiirse of liusiness, and his doing so will not entitle the mortgagee 
 to sei/e : Dedrick v. Ashihiwii (ISS7) I.") S. ('. K. "227. Nor will it prevent a 
 mortgagor disposing of his own iiiterest, the purchaser taking siihjuct to the 
 mortgage. 
 
 Agreements to Give. An agreement to give a (Jhattel .Mortgage or to sell 
 and cuiivey chatti'ls at .some future time might forinerly Is merely verlial, and 
 hy proving the agreement the iiarties negatived the existence of any fraudulent 
 intent in giving the moitgage or hill of sale when called for ; Rohins v. Clarke 
 (1S,S1)4.*) U. ('. R. ;{()-2; Kerry v. .lames (18!)4)2I A. R. ;«;} : Clarksoii v. 
 Sterling (1888) l."i A. R. 2.S4, hut these eases are of douhtfiil aiithoritv even 
 as to the law hefore 18!M) ; Clarksoii v. .McMaster ( I8!».-)), -J,'} S. C. R. !)t) ; Hope 
 V. M.u' (I8!)7)24 A. R. Ki. 
 
 Sections II to 14 provide that all such agreements must he in writing and 
 registered in the same manner as if they were aetual mortgages or liills of 
 sale, otherwise tlie\' are void as against creditors, itc. 
 
 The agreement will give only an eipiitalile title to the goods, and any jmr- 
 chaser (U- mortgagee of the same, without iioti<e of the agrceniciit hefore the 
 execution of an actual mortgage or the taking of possession hy the iiiortj'agee, 
 will acijiiire a gooil title notwithstanding the agreement ; .rosejih v. Lyons 
 (1884), 1.-) q. B. J). 280 ; Hallas v. Rphinsoii (188.")), 15 Q. 15. I). 288. 
 
 Removal of Ooods. Where the goods covered by a mortgage are perniaiiently 
 
 remo\ed out of the County where the mortgage is registered, it is iiecessaiy 
 for the mortgagee to liave copies of the mortgage, athdavits, renewal state- 
 ments and renewal athdavits made anil certitied hy tiie Coinity t.'ourt Clerk 
 and tile these in the County to which the goods have heen removed. This is 
 to give puhlic notice of the existence of the chattel mortgage in the Couiitv 
 where the goods are ; Clark v. Hates (1871), 21 C. I'. :r>2. 
 
 If the mortgagor without his mortgagee's consent removes his goods to 
 another County, and after two months mortgages to another jiarty or sells, 
 such purelm.ser or new mortgagee has ))ioliahIy a good title to the goods, not- 
 withstanding that tlie first mortgagee had no notice of the removal ; Clark v. 
 Bates, supra. 
 
 Hut if the mortgagor sells the goods and the purchaser removes them to 
 allot lier County the lapse of two months will not perfect his title, for he never 
 had one to start with ; he was a wrongdoer when he removed the goods and 
 the rights of the parties were determined then, and he is not a suhseipient 
 purchaser under the Ai't ; Hodgins v. Johnston (1880), o A. R. 440. 
 
 Mere temporaiy removal is not afl'eeted hy this section. Permanent removal 
 would prohahly he held to mean removal for longer than two months. 
 
'\1,' 
 
 
 CHAPTER 149. 
 
 An Act respecting Conditional Sales of Chattels. 
 
 Conditional 
 sales of manu- 
 factured goods 
 when to be 
 valid. 
 
 HER MAJESTY, by ami with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 1. Receipt notes, hire receipts and ordev.s for chattels, given 
 by bailees of chattels, where the condition of the bailment is 
 such that tb possession of the chattel passes without any 
 ownership therein being acquired by the bailee until the pay- 
 ment of the purchase or consideration money or some stipu- 
 lated part thereof, shall only be valid as against subsequent 
 purchasers or mortgagees without notice in good faith for 
 valuable consideration in the case of manufactured goods or 
 chattels, which at the time possession is given to the bailee, 
 have the name and a ddres s of the manufacturer, bailor or 
 vendor ot the same painted, pi'inted, stamped or engraved 
 thereon or otherwise plainly attached thereto, and no such 
 bailment shall be valid as against such subsequent purchaser 
 or mortgagee as aforesaid, unless it is evidence d in writing, 
 signed by the bail ee or his agent. 51 V. c. 19, s. 1. 
 
 3. The preceding section shall not apply (iiVinimolwil^] fmn'- 
 ture , other than pianos, organs or other musical instruments ; 
 nor shall it »ipply to any chattels mentioned in any such 
 receipt note, hire receipt, order or other instrument where the 
 manufacturer, bailor or vendor within tea days from the 
 execution of the receipt note, hire receipt, order or other in- 
 strument evidencing the bailment or conditional sale given to 
 secure the purchase money, or a part thereof, shall tile with 
 t he Clerk of the County Court of the county in which the 
 bailee or conditional purchaser resided at the time of the 
 bailment or conditional purchase, a copy of the said receipt 
 note, liiie receipt, order or other instrument evidencing the 
 bailment or conditional sale. 51 V. c. 19, s. 6. 
 
 Filing of 3". — (1) When the bailee or conditional purchaser resides at 
 
 instruinentain the time of the bailment or conditional pui-chase in an un- 
 
 d?sTnct"" organized district, all instruments may be tiled with the Clerk 
 
 of the Court with whom mortgages and sAles of chattels are to 
 
 be registered in such district, under the law at the time in force. 
 
 (2) This section shall apply to instruments filed with the 
 said officer prior to the 7th day of April 1890. 53 V. c. 36, ss. 1,2. 
 
 1300) 
 
 / 
 
 Section 1 not 
 to apply to 
 certain 
 household 
 furniture. 
 
 Saotion 1 not 
 to apply when 
 copy of receipt 
 filed with 
 Clerk of 
 County Court. 
 
Chap. 149. CONDITIONAL SALES OF CHATTELS. 
 
 Sec. 4. 
 
 361 
 
 4. The Clerk of the Court, on receipt of such copy, shall Clerk to file 
 duly file the same and cause it to be properly entered in an J^p/notg 
 index book to be kept for that purpose, and shall be entitled 
 
 to charge ten cents for every such filing and five cents for 
 every search in respect thereof. A clerical error which does 
 not mislead, or an error in an immaterial or non-essential 
 part of the said copy so filed, shall not invalidate the said 
 filing or destroy the efiect thereof. 51 V. c. 19, s. 7. 
 
 5. The manufacturer , bailor or vendor shall leave a copy of Copy of 
 
 the receipt note, hu-e receipt, order or other instrument by to*be^left°w^*:h 
 which a lien on the chattel is retained, or which provides for vendee, 
 a conditional sale, with the bailee or conditional vendee at the ^ j 
 
 .time of the execution of the instrument, or within twenty *f' • 
 
 days thereafter. 51 V. c. 19, s. 8. -" - 
 
 <J. — (1) Every manufacturer, bailor or vendor shall, in answer statement of 
 to an inquiry made by any proposed purchaser or other inter- jmount due to 
 ested person, Avithin five days f urnisli full information respecting request. > 
 the amount or balance due or unpaid on any such manufac- 
 tured goods or chattels, and the terms of payment of such 
 amount or balance, and in case of his refusal or neglect to 
 furnish the information asked for, such manufacturer, bailor 
 or vendor shall, on conviction before a Stipendiary or Police 
 Magistrate or two Justices of the Peace, be liable to a fine not 
 exceeding .$50. 
 
 (2) Any person convicted under this Act shall have the 
 right to appeal against such conviction to the Judge of the 
 County Court without a jury. 51 V. c. 19, s. 2. 
 
 1. The per.son so inquiring shall, if such iuiiuiiy is by letter, Address to be 
 give a name and post office address to which a reply may be gon*requiring 
 sent, and it shall be sufficient if the information aforesaid be statement, 
 given by registered letter deposited in the post office within 
 the said five days, addre.ssed to the person inquiring at his 
 proper post office address, or where a anio and address is 
 given as afoi'esaid, addressed to such person by the name and 
 at the post office .so given. 51 V. c. 19, s. 3. ;'• 
 
 8. In case any manufacturer, bailor or vendor qi' any ^^f?^ "^ 
 chattels in respect of which there has been a conditioii.d sale 
 or promise of sale, or his successor in interest takes po.s.^s8ion <^ o ,i 
 thereof for breach of condition, he shall retain the sai fe for ■./ 
 
 tvyenty days, and tin; bailee or li!. .successor in interesiinay 
 redeem the same within such period on payment of the full 
 amount then in arrenr, together with interest and the actual 
 costs and expenses of taking possession which have been 
 incurred. 51 V. c. 19, s. 4. • 
 
 0. Where the goods or chattels have been sold or bailed Notice of sale, 
 originally for a greater sum than S30, and the same have been 
 

 rV; :f 
 
 v.. 
 
 ^ 
 
 ■*'5 
 
 
 ', •» 
 
 362 Sec. 10(2). cox ditional .sales of chattels. Chap. 141). 
 
 taken possession of, as in the preceding section mentioned, such 
 goods or chattels .sliall not be' sold wi'^hont tiv'e days' notice of 
 the intended sale being lii'st given to tlie bailee or his successor 
 in interest. The notice may be personally .served or may, in 
 the absence of such bailee or his successor in interest, be left 
 at his residence or last kncnvn place of abode in Ontario, or 
 may be sent by registered letter, deposited in the post office at 
 . least seven days before the time when the said five days will 
 elapse, addressed to the bailee or his successor in intere.st, at 
 his last known post office address in Canada. The .said five 
 days or se\'en Jays may be part of the twenty days in section 
 8 mentioned. 51 V. c. 19, s. 5. 
 
 / ChattelH affix- ' 10. — (1) Where any goods or ehattels subject to the pro- 
 ( ^^ to realty tcj visions of this Act are affixed to any realty without the consent 
 ^ ject toiilien. i" writing of the owner of the goods or chattels, such goods 
 and chattels shall notwithstanding remain so subject, but the 
 owner of such realty, or any purchaser, or any mortgagee, or 
 other incumbrancer on such realty, shall have the right as 
 {igainst the manufacturer, bailor or vendor of such goods or 
 chattels, or any person claiming through or under them, to 
 retain the said goods and chattels upon payment of the amount 
 due and owing thereon. 
 
 (2) The provisions of this section are to be deemed retro- 
 active and shall apply to past as well as to future transactions. 
 60 V. c. 3, .s. ;i ; c. 14. s. SO. 
 
CONDITIONAL SALES OF CHATTELS. 
 
 363 
 
 NOTES. 
 
 Law Before the Act. Xlieio was foi'iiierly no restriction upon the right of an 
 ownef of gooil.^ to reserve tiie property in goods sold — tlie pa.ssing of tlie piop- 
 ert}' being in every case a matter of intention which could oe coiitrolle<l 1)V the 
 contract of the parties ; Forristal v. McDonald (1883) 9S.C.R. 12 ; La I?a"n(iue 
 de Hochelaga v. Waterous Kngine Works Co. (1807) -7 S.C.H. 400. A ven- 
 dor of goods was not estopped, by painting the name of the puiclia.scr ui)on tlie 
 diattel, nor by giving up to him, on receiving a renewal, the note for the 
 purchase monev, from showing tliat the propertv iiatl not passed from him ; 
 Walker V. Hyman (1877) 1 A. R. :Uo ; Mason v. Hickle (1878) 2 A. R. -ini. 
 The discounting of the promissoiy notes received for the jmrcliase money would 
 not amount to a waiver of die vendor's right of property; Mason v. Hickle 
 (1S78)2 A. R. 2!»1 ; Hall Manufactnring Co. v. Ha/litt (ISSo) 11 A.K. 741), 
 7')4 ; nor wouhl the recovery of a judgment thereon ; Arnold v. Playter (1892) 
 22 O. R. 608. See Hurke v. Heney (1898) Xi N. H. Rej). 007. The construc- 
 tion of the contract is for the Court, and tiie mere taking of a note for the 
 purpose of closing tiie account will not bo iiroof that it was taken in payment ; 
 Kordlieimer v. Robinson (1878) 2 A.R. 30."). 
 
 Effect of the Act. "The whole Act "' said Osier J. A., " is very loosely drawn, 
 and will probably turn out to be a very ineffectixe piece of legislation," 
 Wettlaufer v. Scott (1893) 20 A. R. 052, 658. The bailment covered by the 
 Act is where " the condition of tlie bailment is such that the possession of the 
 chattel pas.scs v/ithout any ownership therein being acrjuired 1)3' the bailee 
 until the payment of the purchase or consideration money or some stipulated 
 part tliereof.'' The Ait extends only to manufactured goods or cliattcls except 
 household furniture. 
 
 T'he bailment must be evidenced by writing. The writing, is not, however, 
 required to be filed unless it is a receipt note, hire receipt, or order for chattels 
 and tlie name and address of the manufacturer, liailee or vendor are at the time 
 possession is given, painted, printed stamped or engraved on the chattel or 
 otlierwise plainlj' attached thereto. If the name is subsetiuently erased, the 
 rights of the vendor are not affected ; Wettlaufer v. Scott (1893) 20 A. R. 652. 
 Failure to comply with the provisions of the Act will make the " receipt note, 
 hire receipt or order for chattels" invalid as against subsecjuent purcha.sers 
 and mortgagees in good faith for valuable consideration. As between the 
 parties and as against creditors and as against a landlord ; Carroll v. Heard 
 (1895) 27 O.R. 349, the bailment will be good notwithstanding the Act, thongli 
 the name be not upon the goods and the liailment is not evidenced by writing 
 or registered. A simjile contract of hiring is not within the Act ; Ksnoiif v. 
 <;urney (1896) 4 H.C.R., 144. 
 
 Under the English Factons' Act (52 & .53 Vict. c. 45) ss. 2(1) and 9, a per- 
 son having bought or agreed to buy goods who obtains witli the con.sent of tiie 
 seller the possession tiiereof can confer a good title on a purciiaser iiaving no 
 notice of tlie lien or other right of the original seller; Lee v. Hutler (1893) I 
 Q. B. .318. Where a piano was delivererl upon hire at a monthly rent with 
 powjr to the liailee to terminate tlie hiring by delivering uj) tlic piano at any 
 time, and it was agreed that " if the hirer shall punctually pay the sum of €18, 
 18s, l)y lOs 6d, at the date of signing and i)y 30 monthiy instalments of lOs, 
 6(1, in advance, the said instrument shall l)ecome the sole anil al)solutc 
 property of the hirer " it was held that the agreement was nothing more than 
 a contract of hiring and as the hirer was under no obligation to buy there was 
 no purchase! or agreement for purciiase until he actually exercised tlie option 
 given him, and he could not tiierefore give a good title : Helby v. Matthews 
 (1895) A. C. 471. 
 
 Appeal ftom Conviction. Should a nianufactuier, bailee or vendor be con- 
 victed under s. 6, his appeal would not be to the tienoral Sessions but wouhl 
 lie governed by R.S.t). c. 92. 
 
 Talcing FoBBesBion. Unless, under the terms of the bailment the proceeds of 
 
 le pro 
 
 U) be 
 
 any sale of the goods l)y the bailor after retaking possession are to be applied f 
 pro laiilo on what is due, and tlic ))urcliaser is to remain lialilc for the '. 
 
364 
 
 CONDITIONAL SALES OF CHATTELS. 
 
 P 
 
 S 
 
 I 
 I 
 
 A/V^- 
 
 ' (leficicncy, the taking possession by the bailor is an election to put an end to 
 tile contract of purcliase and no deficiLiicy is recoveral)le ; ISawyer v. I'lingle 
 (IKlti) 18 A. R. 218; 20 O.K. Ill; Arnold v. Playter (1892) 220. R. 608. 
 
 Notice of Bale. Tlie l)aileo may contract himself out of or waive the benefit 
 of the provisions for retention of possession by the bailor after retaking and 
 not ic(! of sale, ijiiilihel polesl nimnciurr jiiri pro ne hitrodncto : Markluim v, 
 Stanford (1863) 14 C.B.N.H. 376; (iraiiani v. Ingleby (1847) 1 Ex. 651; 
 (Jirvin V. Burke (1889) 19 O.K., 204. 
 
 Chattels affixed to realty. Wliere goods and chattels wore, without the con- 
 sent of tiu! vendor affixed to the realty l)y a lessee who forfeited his tease, the 
 landlord was iield not to l)e entitled to retain them, tiie goods being rea<lily 
 reinoveable and not having been intended to l)econie part of the realtj- • Hall 
 Maiuifacturing Company v. Ha/.litt (188")) 1 1 A. R. 749 ; Poison v. Degeer (1886) 
 12 O. R. 27.5. 
 
 Where the owner of property bought a gas engine under a hiring contract 
 and annexed it to the realty and subse<iuently mortgaged tiie realty, the vendor, 
 notwithstanding, the pro"isions of tiie l)ailment was iield not to be entitled 
 thereto as against tiio mortgagee ; Hobson v. (Jorringe (1897) 1 Ch., 182. 
 
 Under the provisions of s. 10 manufactured articles " subject to the pro- 
 visions of the act " are notwithstanding annexation to tiie realty to remain 
 Huljject to the act unless affixed with the consent in writing of the owner 
 thereof. The intention of tlie section aj)pears to iiave been to preserve the 
 rights of the Imilor as against the owner or mortgagee of the realty. It seems 
 doul)tful wliether the language is sufficient for that purpose. Tlie act does not 
 give the bailment validity. The act merely declares the bailment " subject " 
 to it, to be voidable liy certain persons upon certain fr)rnialities not l)eing 
 observed. Literallj- section 10 merely declares that such bailments shall still 
 continue so voidable, notwithstanding annexation to the realty. 
 
 AsBignment of Hire Receipts. Securities by way of hire receipts are acces- 
 sory to the debt of tlic purchaser, and a t! nsfer of notes taken for the purcliase 
 money is in eiiuity a transfer of tiie securities ; Central Bank v. (Jarland (1890) 
 20 0. R. 142; ISA. R. 438. A transfer of a liiring agreement is not a bill of 
 sale ; He Isaacson, Kx Parte Mason (18!).")) 1 i). B. 333, and a transfer of tiie 
 goods themselves wliile in the possession of the liailee wr)uld seem not to be 
 within the Bills of Sale Act ; May v. Security Loan and Savings Co. (1880)45 
 U.C.R. 106. 
 
PART VIIL 
 
 Equity* 
 
 \:m] 
 
] 
 
 
 I 
 
CHAPTER 115. 
 
 An Act respecting Fmuclulent and Voluntary 
 Conveyances, 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 VOLUNTARY CONVEYANCES. 
 
 1. Notwithstanding the provisions of the statute passed in 
 the 27th year of the reign of Her late Majesty Queen 
 Elizabeth, and chaptered four, no conveyance, grant, charge, 
 lease, estate, incumbrance, limitation of use or uses which is ex- 
 ecuted in good faith, and duly registered in the proper registry 
 office before the execution of the conveyance to, and before the 
 cieation of any binding contract for the conveyance to any 
 sul)sequent purchaser for the same grantor of the same lands, 
 tenements or hereditaments, or any part or parcel thereof, or 
 any rent, profit or commodity in or out of the same, shall be or 
 be deemed or taken to be, merely by reason of the absence of a 
 valuable consideration, void, frustrate, or of none effect as 
 against such purchaser, or his heirs, executors, administrators 
 or assigns, or any persons claiming by, from, or under any of 
 them. R. S. 0. 1887, c. 96. s. 1. 
 
 2. Nothing in the preceding section contained shall have instrnmentK 
 the effect of making valid any instrument which is for any otherwise void 
 
 tinti to nA v&llu 
 
 reason other than or in addition to the absence of a valuable under preced- 
 
 consideration void under the said statute or otherwise ; nor i^B section. 
 
 shall anything in the preceding section contained have the 
 
 effect of making valid any instrument as against a purchaser 
 
 who had, before the 28th day of February, 1868, entered 
 
 into a binding contract for, or received his conveyance upon 
 
 such purchase. R. S. 0. 1887, c. 96, s. 2. 
 
 FRAUDULENT CONVEYANCES. 
 
 No volun- 
 tary convey- 
 ance, etc., exe- 
 cuted in good 
 faith and duly 
 regiatered to 
 be void merely 
 for absence 
 of valuable 
 c jnsideration. 
 
 3. Whereas by the first and second clauses of the Act Recital of bs. 
 passed in the 13th year o{ the reign of Her late Majesty Queen ^.? ^'"'g^^l*"'' 
 Elizabeth, it is enacted as follows: — that certain 
 
 con v6Vftnc6s* 
 
 " For the avoiding and abolishing of feigned, covinous and judgment, 
 " fraudulent feoffments, gifts, grants, alienations, conveyances, f^(^ uni^ 
 
 [,'{67J mide to a 
 
368 
 
 Chap. 115. VOLUNTARY AND FRAUDULENT CONVEYANCES, SeC. 3. 
 
 bonafiile pur- 
 chaser for 
 value 
 
 cS 
 
 r. 
 
 " bonds, suits, judgments and executions more commonly use<l 
 " and practised in these days than hath been seen or heard of 
 " heretofore, which feoftments, gifts, grants, alienations, convey- 
 " ances, bonds, suits, judgments and executions have baen and 
 " are devised or contrived of malice, fraud, covin, collusion or 
 " guile, to the end, purpose and intent to delay, hinder and 
 " defraud creditors and others of their ju.st and lawful actions, 
 " suits, debts, accounts, damages, penalties, forfeitures, heriots, 
 " mortuaries and reliefs, not only to the let or hindrance of the 
 " due course and execution of law and justice, but also to the 
 " overthrow of all true and plain dealing, bargain and chevi- 
 " sance between man and man, without the which no common- 
 " wealth or civil society can be maintained or continued ; all 
 " and every feoffment, gift, grant, alienation, bargain and con- 
 " veyance of lands, tenements, hereditaments, goods and chat- 
 " tels, or of any of them, or of any lease, rent, common or other 
 " profit or charge out of the same lands, tenements, heredita- 
 " ments, goods and chattels, or any of them, by writing or other- 
 " wise, and all and every bond, wi'it, judgment and execution, 
 " at any time had or made since the beginning of the Queen's 
 " Majesty's roign, that now is or at any time hereafter to be 
 " had or made to or for any intent or purpose before declared 
 " or expressed, shall be from thenceforth deemed and taken 
 " only as against that person or persons, Ids or their heirs, suc- 
 " cessors, executors, administrators and assigns, and everj' of 
 " them, whose actions, suits, debts, accounts, damages, penalties, 
 " forfeitures, heriots, mortuaries and reliefs, by such guileful, 
 " covinous and fraudulent devices and practices as is aforesaid, 
 " are or shall or might be in any ways disturbed, hindered, de- 
 " layed or defrauded, to l)e clearly and utterly void, frustrate 
 "and of none effect, any pretence, colour, feigned consideration 
 " expressing of use or any other matter or thing to the contrary 
 " notwithstanding." 
 
 
 And whereas it is also by the sixth clause of the said Act 
 provided and enacted as follows : 
 
 "This Act or anything herein contained shall not extend to 
 "any estate or interest in lands, tenements, hereditaments, 
 " lea.ses, rents, commons, profits, goods or chattels had, made, 
 "conveyed or assured, or hereafter to be had, made, conveyed 
 " or assured, v hich estate or interest is or shall be upon good 
 " consideration and bona fide lawfully conveyed or assured to 
 " any person or persons, or bodies politic or corporate, not hav- 
 " ing at the time of such conveyance or assurance to them made 
 " any manner of notice or knowledge of such covin, fraud or 
 " collusion as is aforesaid, anything before mentioned to the 
 " contrary thereof notwithstanding." 
 
 And wherea.s there are doubts >ia to the true construction of 
 the said Act, and it is expedient to declare the true construc- 
 tion of the same ; 
 
 I 
 
Sec. 3. VOLUNTARY AND FRAUDULENT CONVEYANCES. Chap. 115. 
 Therefore it is further enacted as follows: — 
 
 369 
 
 1. The first and second clauses of the said Act apply to all When 
 instruments executed to the end, purpose and intent in the said con"?deration 
 clauses set forth, notwithstanding that the same may be ex- and intent tt. 
 ecuted upon a valuable consideration, and with the intention, as n^t^Jj^avair 
 between the parties to the same, of actually transferring to and 
 
 for the benefit of the transferee the interest expressed to be 
 thereby transferred, unless the same is protected under the 
 sixth clause of the said Act by reason of bona fides and want 
 of notice or knowledge on the part of the purchaser. 
 
 2. This section shall not apply to any instrument executed instruments 
 before the second day of March, 1872. R. S. O. 1887, c. 96, ""» affected. 
 s. 3. 
 
370 
 
 VOLUXTAKY AM) I'UAUDULENT CONVEYANCES. 
 
 'il 
 
 NOTES. 
 
 Voluntary Conveyance. A conveyance thuuuh registered is void uh agiiiuHt 
 a siilistM|iiuiit nioilgage given to a creditor if the conveyance wa.s not executed 
 in good faitii, hut to j)iote(t the ])roj)crty in case the grantor Mlioid<l Ix- un- 
 succcusful in liiH nll'airH. Kiuhardson v. Arniitage (IS71) 18 (ir. ")12. 
 
 ObJectOfB. 3. This section, tliougli tliouglit at the time it was piiMMcd 
 to l)e an alisolutc ucccssity for the jHnjjo.se of j)ieveiiting tlic Statute l.'{ ICli/.., 
 e. .">, from heing inctl'cctive (h)cs not ajipcar to have formed tlic l)aNiH of any de- 
 cided case since tliat time. Two cases gave rise to the passing of tlic Act. In 
 Smith V. .Morton (IStiH) '27 U. C. H. 19.'), and in appeal, Smith v. .Moll'att 
 (l!S(i!l) "is U. C. R. 4S(i, a debtor had in IS.")7 disposed of a contingent interest 
 which he had in real (estate which he had previously validly settled on his wife 
 and children to his father-indaw for i'.jO, which was a fair price. The delitor 
 never considered these lands lia))le to his creditors. In his evidence he .said : 
 " Tliere were many failures in 18.57, and I said as times were getting iiarrl I 
 might as well secure the property for the fanuly. No douht I told Smitli (tiie 
 fathei-indaw) why I wished he slKmld get a ileed of tae property." Sul)8e- 
 t|nently the contingent estate liecame an al)soluto one, and the conveyance to 
 the father-indaw was attacked. Morri.son, J., told the jury tlie (jucstion for 
 their consideration was whether the deed was a hona fide tran.sactioii, a deed 
 made for valuable consideration or whether it was fraudulently made, a mere 
 contrivance for the purpose of delaying or defrauding creditors, and if the 
 latter, to find it invalid. Tlie jury having found a verdict in favor of the 
 deed, the direction was hehl l)y the Court of Queen's Hench anil the Court of 
 Error and Appeal to be riu'lit. 
 
 In Dalglish v. .McCarthy (1872) liXir. r)78, it was found that a sale made 
 by a debtor was made with intent to defeat creditors, but tliat the sale was 
 houajiih and intended to ])ass the property and that full consideration actually 
 pa.ssed and that it was really a sale, tiiougli made with intent to defeat c;edi- 
 tors. The full Court of Chancerj' reluctantly and contrary to their own pci- 
 sonal o))inions held tliat under the English Aivlhorities the deed was valid. 
 Blake V.C. said : " As in the jiresent case it has been estalilished there was 
 an actual sale, and a conveyance executed for the purpose of ])assing the jiro- 
 pcrty and not as a mere cloak for the purpo.se of retaining a bcnetit for tlie 
 grantor, I must hold that the transaction is not within tlie Statute under 
 wliicli it is sought to lie impeached, tiiough the parties to it may liave been 
 aware of the claim of the plaintiti' and desired to prevent his execution attach- 
 ing upon the premises." 
 
 The chief Knglish authority which caused tlie lule to be thus laid down was 
 Wood V. Dixie (184.5) 7 (J.H. 89"2, where a conveyance was made in considera- 
 tion of money lent but to defeat a particular expected execution, the convey- 
 ance was held to be good. Lord Denniaii, C. J., said : " The jury were given 
 to understand that althougii the convej'ance was made tiona Jhln aii<l with a 
 full intention that the projierty should be parted with, it would yet lie fraudu- 
 lent if made with intent to defeat the execution. Such a motive does not cle- 
 fcat the assignment. We are clearly safe in going so far as to say that a mere 
 intent to defeat a particular creditor docs not constitute a fraud." In 1,'alg- 
 lisli V. McCarthy, a statement of the law from Addison on Contracts, (ith Ed. 
 pp. lo(t, l.")l, was (juoted " what is meant by a bill of sale being fraudulent ia 
 that the parties never intended it to have operation as a real instrument ac- 
 cording to its apparent character and effect." 
 
 Effect of the Act. Strong, V. C. .said (19 fir. p. .'582): "I cannot forbear 
 from adding tliat the true construction of the Statute, 13 Elizabeth, chapter .">, 
 has always ajipcared tome to lie tiiat which Lord Mansfield attributed to it in 
 the case of Woiscley v. Dcmattos (1758), Burr. 407, where he says : " If a man 
 kt.')wing that a creilitoi' lias obtained judgment against his <lcbtor buys the 
 debtor's goods for a full jiricc to cnalilc him to defeat the creditor's execu- 
 tion it is fraudulent, " and referring to the declaratory act, the suliject of this 
 note, lie said : " Tliis ellect being now ascril)e<l to the act liy tiu^ Dcclaratoiy 
 Statute, 3.5 Victoria, chapter 11, wliich iias brought the law back to the simile 
 in which it was in the time of Lord Mansfield, such ([ucstions as the [in sent 
 
VOLUNTARY AND FKArDULENT CONVEVANCES. 
 
 :m 
 
 1st 
 
 (1 
 
 Ill- 
 
 will seldom arise in fiituie," iiml lUjikc V. C, suiil that tin- iK'ilaiatoiy Act 
 " lays (Idwii that wliicli shniilil always have lioeii (kclaii'd to lie the true eon- 
 Mtruetion of the act, and wliic'h in the future will |)rev('nt much of the dis- 
 honesty that mij,'ht otherwise he practised u|>on creditors." 
 
 The Statute of KlizaiM'th has not heen amended in Kngland. It is nevertlio- 
 k'ss laid down there that a fra\idulent intention to whicli thi' |iurchiisi'r was a 
 party will over-ride all en(|uiry into the consideration: Itott v. Sniitli (Is'di) 
 21 Heav. ,")11 ; Aeraman v. I'orhett ( ISCil) 1 .1. it Hem. 41il ; Kx parte Chaplin 
 (1H84) "idCli. 1)., .SI!), and no amendment has been made in Nova Scotia, yet 
 it has been iicld that a conveyance liy a delitor to a crediloi' on an understand- 
 ing that he would i)ay certain delits due from the assignor to other j)c>rsons 
 anuuniting in the aggregate to the amo\nit by which the ])urcliase money 
 exceeded his debt was void, tlie other cii'ditors not being parties to the deeil, 
 and no trust being declared for them. If the pui'chascr iiaid, good and well, 
 if not tiie debtor was entitled t(» recover from them. That was a personal 
 benefit foi' himself, a secret ailvautage for himself, the ellect being to make the 
 instrument void. McDonald v. CummiuL's (180")) 24 S. C. K. 3"21, 3'J7. 
 
 The ert'ect of the Statute was not discussed in Hi<kerson v. Parrington 
 (18»)1) 18 A.R. 03"), or Campbell v. Roche (181)1) 18 A.K. (Uti, s.c. .■<iih-nom. 
 Mader v. McKirnion (18!).S) 21 S. C. R. ()4."), in which it was pointed out that 
 though a deed made for valuable consideration may be affected by nuthi jIiIih 
 tho.se who undertake to impeach such a transaction on that grou?id have a task 
 of great difficulty to discharge. 
 
 The cases illustrating what is mala fidtn will be found in May on Fraudulent 
 Conveyances, 2nd Ed. pp. 78 t< stq. See also notes to R. S. (). c. 147. 
 
 , -! •■' 
 

 i 
 
 
 CHAPTER 129. 
 
 An Act respecting Trustees and Executors and the 
 Administration of Estates. 
 
 Aa amended by 62 V. c. 16. 
 
 Short Title, s. 1. 
 
 Interpketation, 8. 2, 27. 
 
 ruihtw and liabilitiksoftkistees : 
 
 Indemnity and reimbursement 
 clause, B. 3. 
 
 Appointment of new trustees, s. 4. 
 
 Vesting of trust property in new 
 or continuing trustees, s. 6. 
 
 Tmstees buying and selling, s. (i. 
 
 Fee simple of bare trustees to vest 
 in their personal representa- 
 tives, 3. 7. 
 
 Conveyances by married women 
 as bare trustees, s. 8. 
 
 Receipts of trustees to be effectual 
 discharges, s. {). 
 
 Absence of trustee — payment into 
 court, 8. 9(a) 
 Rights and liabilities op exe- 
 cutors : 
 
 Actions by and against in respect 
 of torts, 88. 10-12. 
 
 Distress by, ss. 13, 14. 
 
 Liability of the executors of a 
 joint contractor, s. 15. 
 
 Devisee in trust or executors em- 
 powered to raise money by sale 
 or mortgage, to satisfy charges, 
 88. lG-20. 
 
 Exercise of powers of sale by ex- 
 ecutors, etc. , when the will names 
 no one to exercise, ss. 21-26. 
 
 Appcintment of agents, «. 28. 
 Grounds upon which sales not 
 
 impeachable, 
 Breach of tru" 
 
 oficiary. s. 
 Power to ine 
 
 29. 
 
 re(iue8t of ben- 
 
 M. 
 
 Relief for tecii.ncal breach, a. 
 ?1 (a). 
 When Statites ok Limitations 
 
 TO APl'LV, s. 32. 
 Administration of e.statbs : 
 
 Executors empowered to pay 
 debts, compromise, submit to 
 arbitration, etc., s. 33. 
 
 Debts payable pari pax-vi when 
 deticiency of assets, s. 34. 
 
 Limitation of actions for claims re- 
 jected by executors, s. 35. 
 
 Distribution of residuary persona 
 estate after executor has satis 
 fied claims in respect of rents, 
 covenants, etc. , and set apart a 
 fund to meet ascertained future 
 claims, ss. 3G, 37. 
 
 Distribution of assets after notices 
 given to creditors, s. 38. 
 
 Application to Court for advice, 
 s. 39. 
 Allcvances to trustees and exe- 
 cutors, ss. 40-44. 
 
 Short title. 
 
 Interpreta- 
 tion. 
 
 Rev, Stat. 
 0.128. 
 
 Every trust 
 instrument to 
 be deemed to 
 contain clause 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 1. This Act may be cited as " The Trustee Act" 
 
 •4. In the construction of this Act the words " Will," " Real 
 E.state," and " Personal Estate," shall have the meaning 
 assigned to them respectively by section 9, of The Wills Act 
 of Ontario. 11 S. O. 1.887, c. 110, s. 1. 
 
 RIGHTS AND LIABILITIES OF TRUSTEES. 
 
 3. Every deed, will, or other document creating a trust, either 
 expressly or by implication, shall, without prejudice to the 
 
 L372] 
 
Sec. 4 (1). 
 
 TUUSTEEH AND EXECUTORS. 
 
 Chap. 129. 
 
 37.^ 
 
 (clauses actually contained therein, be deemed to contain a clause for the indtm 
 in the words or to ihe effect following,', that is .. tay :— " That j;;,7,,";;;.',t**™" 
 the trustees or trustee, for the time being, of the said deed, the tniHtofs. 
 ^vill or other instrument, shall be respectively char<,'eable only gg"^ ^"a^ 
 i.iv such moneys, -stocks, funds and securities as they shall re- m. ai. 
 spectively actuall\ receive, notwithstanding their respectively 
 signing any receipt for the sake of conformity, and shall be 
 answerable and accountable only for their own acts, receipts, 
 neglects or defaults, and not for those of each other, nor foi- 
 any hanker, broker, or other person with whom any trust 
 moneys or securities may be deposited ; nor for the insufficiency 
 or deficiency of any stocks, funds, or securities, nor for any 
 other loss, unless the same shall happen through their own 
 wilful default respectively ; and also that it shall be lawful for 
 the trustees or ti-ustee for the time being, of the said deed, will 
 or other instrum ut, to reimburse themselves or himself, or pay 
 or discharge out *' the trust premises all expenses incurred in 
 or about the exec ion of tli(> trusts or powers of the said deed, 
 will or other instn. ent." L. S. 0. 1887, c 110, s. 2. 
 
 4. — (1) Where a trustee, either original or substituted Appointment 
 and whether appointed by the High Court or otherwise, tLsf^Imp! 
 dies, or desires to be discharged from, or refuses, or becomes Act 23-24 v. 
 unfit or incapable, to act in the trusts or powers in him reposed, '^- ^^^' *• ^^* 
 before the same have been fully discharged and performed, it 
 shall be lawful for the person or persons nominated for that 
 purpose by the deed, will or other instrument creating the 
 trust (if any), or if there be no such person, or no such person 
 able and willing to act, then for the surviving or continuing 
 trustees or trustee for the time being, or the acting executors 
 or executor or administrators or administrator of the last sur- 
 viving and continuing trustee, or for the last retiring trustee, 
 by writing, to appoint any other person or persons to be a trus- 
 tee or trustees, in place of the trustee or trustees dying, or de- 
 siring to be discharged, or refusing, or becoming unfit, or 
 incapable to act as aforesaid ; and so often as any new trustee 
 or trustees is or are so appointed as aforesaid, all the trust 
 property (if any), which for the time being is vested in the 
 surviving or continuing trustees or trustee, or in the heirs, ex- 
 ecutors or administrators of any trustees or trustee, shall, with 
 all convenient speed be conveyed, assigned and transferred, so 
 that the same may be legally and effectually vested in such new 
 trustee or trustees, either solely or jointly with the surviving or 
 continuing trustees, or a surviving or continuing trustee, as the 
 case may require ; and every new trustee to be appointed as 
 aforesaid, as well before as after such conveyance, assignment 
 or transfer as aforesaid, and also every trustee appointed by 
 the High Court, either before or after the passinff of this Act, 
 shall have the same power's, authorities and discretions, and 
 and shall in all respects act as if he had originally been nomi- 
 nated a trustee by the deed, will, or other instrument creating 
 the trust. 
 
374 
 
 Chap. 129. 
 
 TRUSTEES AND EXECTITORS. 
 
 Sec. 4 (2). 
 
 (2) The power of appointing new trustees hereinbefce con- 
 tained, may be exercised in cases where a trustee, nominated in 
 a will, has died in the lifetime of the testator. R. S. 0. 1887, 
 c. 110,s.3. 
 
 I 
 
 r.' 
 
 lii 
 
 
 I ;; 
 
 Vesti'-" of 
 ti'ust j.ioperty 
 in new or 
 continuing 
 trustees 
 without con- 
 veyance. 
 
 5. 
 
 Imp. Act 44 
 and 45, V. c. 
 41, s. 34. 
 
 (1) Where an instrument by which a new trustee is 
 appointed to perform any trust conoains a declaration by the 
 appointor to the effect that any estate or interest in any land 
 subject to the trust, or in any chattel so subject, or the right 
 to recover and receive any debt or other thing in action so 
 subject, shall vest in the persons who by virtue of such instru- 
 ment become and are the trustees for performing the trust, that 
 declaration shall, without any conveyance or assignment, 
 operate to vest in those persons, as joint tenants, and for the 
 purposes of the trust, that estate, interest or right. 
 
 (2) Where an instrument by which a retiring trustee is dis- 
 charged under this Act contains such a declaration as is in this 
 section mentioned by the retiring and continuing trustees, and 
 by the other person, if any, empowered to appoint trustees, that 
 declaration shall, without any conveyance or assignment, oper- 
 ate to vest in the continuing trustees alone, as joint tenants, 
 and for the purposes of the trust, the estate, interest, or right 
 to which the declaration relates. 
 
 (3) This section does not extend to any share, stock, 
 annuity, or property only transferable in books kept by a 
 company or other body, or in manner prescribed by or under an 
 Act of Parliament or of this Legislature. 
 
 (4) For purposes of registration of an instrument in any 
 registry, the person or persons making the declaration shall be 
 deemed the conveying party or parties, and the conveyance 
 shall be deemed to be made by him or them under a power 
 confeiTed by this Act. 
 
 (5) This section applies only to instruments executed after 
 the 1st day of July, 1886. E. S. O. 1887, c. 110, s. 4. 
 
 Trustees buy- 0. Tiustees who are vendors or purchasers may sell or buy 
 ing or selling, ^yj^ij^^^t excluding the application of section 2 of The Ven- 
 dors and Pivrchaners Act. R. S. O. 1887, c. 110, s. 5. 
 
 Rev. Stat, c, 
 134. 
 
 Fee simple y. TJpon the death of a bare trustee of any corporeal or in- 
 
 trustees'to "''^'' coi'poreal hereditament of which such trustee was seised in fee 
 vest in their simple, sucli hereditaments shall vest in the legal personal re- 
 LTtatTvJT''''''' presentative, from time to time, of such trustee. R. S. 0. 1887, 
 c. 110, s. 6. 
 
 Conveyances 
 by married 
 woman as 
 bare trustee. 
 
 8. Where any freehold hereditament is vested in a married 
 woman as a bare trustee, she may convoy or surrender the 
 same as if she were a feme sole, and without her husband join- 
 ing in the conveyance. R. S. O. 1887, c. 110, s. 7. 
 
Sec. 12. 
 
 TRUSTEES AND EXECUTORS. 
 
 Chap. 129 
 
 375 
 
 9. Tlie bona fide payment of any money to and tlie receipt Roceii>ts of 
 thereof l)y any per.son to whom the same is payable upon any ejf'rrt,!"^! j'jg'!'' 
 express or implied trust, or for any limited purpose, and such charges, 
 payment to and receipt by the survivors or survivor of two or 
 
 more mortgagees or holders or the executors or administrators 
 of such survivor or their or his assigns, shall etiectually 
 discharge the person paying the same from seeing to the 
 application or hoing answerable for the misapplication thereof, 
 unless the contrary is expressly declai'ed by the instrument 
 creating the trust or security. R. S. O. 1887, c. 110, s. 8. [See 
 aim Cap. 1'21, sec, 14-] 
 
 9tt. — (1) Any person with whom trust moneys have been raymont into 
 deposited or to whose hands trust moneys have come, may in court by per- 
 case the trustee has been absent from the Province for a period trust moneys 
 of a year and is not likely to return at an early date or in the f'T trustee. 
 Hvent of the trustee's death, pay the same into the High Court 
 under and in conformity with the provisions of law for the 
 relief of trustees. 
 
 (2) This section shall extend to a case where there are more 
 trustees than one and the trustee or trustees in the Province 
 cannot give an acquittance of the money. 62 V. c. 15, s, 3. 
 
 RIGHTS AND LIABILITIES OF EXECUTORS, ETC. 
 
 10. The executors or administrators of an}^ deceased perso n Actions by 
 may maintain an action tor all torts or iniuri es to the person I'^ecutors and 
 or to tlie real or personal estate ot the decea,.se( t, except in cases for torts. 
 
 of libel and slander, in the same manner, and with the same 
 rights and remedies as the deceased would, if living, have been 
 entitled to do ; and the damages when recovered shall form 
 part of the personal estate of the deceased ; but such action 
 shall be brought within one year after his decease . R. S. O. 
 1887, c. 110, s. 9. 
 
 11. In case any deceased person committed a wrong to Actions 
 another in respect of his person, or of his real or personal pro- to,!'j,"^^',i'^d™ 
 perty, the person so wronged may maintain an action against the ministrators 
 executors or administrators of the person who committed the f"*" '"'"*''• 
 wrong. The action shall be brought at latest within one year 
 after the decease. This section shall not apph' to libel or 
 slander. R. S. O. 1887. c. 110, s. 10. 
 
 I'i. In estimating the damages in any action under either D.imagps in 
 of the next preceding two sections, the benetit. gain, in-otit or •^''ti^iis "nder 
 
 'i.- 1 • e rr= T^ rr' two i.iecpding 
 
 advantage whic h, in consequence or or resultnig irom the wi'ong stction^*. 
 committed, maxliay«_ac crue (l to t ho o stiifo of tiu'jmt ' mn rwtio 
 committed the wrong, sHall be, talcen into consideration, and 
 shall form part, or may constitute the whole, of the damages to 
 be rccovei'ed, and whether or not any propeity, or the proceeds 
 or value of property, belonging to the person bringing the 
 
376 
 
 Chap. 129. 
 
 TIU'STEES ,\ND EXECUTOKS. 
 
 Sec. 12. 
 
 ■^ t 
 
 
 ^ 
 
 '^S ' 
 
 action or to his estate, has or have been appropriated by or 
 added to the estate or monej'H of the person who committed 
 the wrong. R. S. O. 1887, c. 110, s 11. 
 
 Executors or 1*5. The executors or achninistrators of any lessor or land- 
 administrators lord may distrain upon the lands demised for any term or at 
 dis^rainTor*^^ will, for the arrears of rent due to such lessor or landlord 
 arrears. in his lifetime, in like manner as .such lessor or landlord might 
 
 have done if living. R. S. O. 18S7, c. 110, s. 12. 
 
 14. Such arrears 
 
 be distrained for at 
 
 time 
 
 Suoharr.ars i-'i- Sucu arrears may De uistramed tor at any 
 
 of re -It may be within six months after the deternv nation of the termor lease, 
 within six and during the continuance ot the possession of the tenant 
 months after from wliom the arrears became due ; and the jiowers and pro- 
 o?thriea8e°" visions contained in the several statutes relating to distresses 
 for rent shall be ap|>licable to the distresses so made as afore- 
 said. R. S. O 1887, c. 110, s. 13. 
 
 Representa- 
 tives of de- 
 ceased joint 
 contractors 
 liable although 
 tlie other joint 
 contractors be 
 living. 
 
 Devisee in 
 trust may 
 raise money by 
 sale or mort- 
 ffage to satisfy 
 charges, not- 
 withstanding 
 want of ex- 
 press power in 
 the will. Imp. 
 Act 22-23 V. 
 c. 35, s. 14. 
 
 15. In case any one or more joint contractors, obligors or 
 partners die, the person interested in the contract, obligation 
 or promise entered into by such joint contractors, obligors or 
 partners, may proceed by action against the representatives of 
 the deceased contractor, obligor or partner, in the sam-i manner 
 as if the contract, obligation or promise, had been joint and 
 several, and thi.'-^ notwithstanding there may be another person 
 liable under such contract, obligation or promise still living, 
 and an action pending a;.^ainst such person ; but the property 
 and effects of stockholders in chartered banks or the members 
 of other incorporated companies, shall not be liable to a greater 
 extent than they would have been if this section had not been 
 passed. R. S. 0. 1887, c. 110, s. 15. 
 
 [As to dischdrges of mortgages hy executors, etc., see The Act 
 respecting Mortgaqes of Real Estate, Gap. 131, sees. 11, 12 and 
 13.] 
 
 16. Where, by any will coming into operation after the 
 eighteenth day of September, 1865, or after the passing of this 
 Act, a testator charges his real estate, or any specific portion 
 thereof, with the payment of his debts or with tlie payment of 
 any legacy or other specific sum of money, and devises the 
 estate so charged to any trustee or trustees for the whole of his 
 estate or interest therein, and does not make any express pro- 
 vision for the raising of such debt, legacy or sum of money out 
 of such estate, the said devisee or devisees in trust, notwith- 
 standing any trusts actually declared by the testator, may raise 
 such debt, legacy or money as aforesaid by a sale and absolute 
 disposition, by public auction or private contract, of the said 
 real estate or any part thereof, or by a mortgage of the same, 
 or partly in one mode and partly in the other, and any deed 
 or deeds of mortgage so executed may reserve such rate of 
 interest and fix such period or periods of repayment as the per- 
 
Sec. 21. 
 
 TRUSTEES AND EXECUTORS. 
 
 Chap. 129. 
 
 :J77 
 
 son ov persons executing the same think proper. R. S. O. 1887, 
 c. 110, .s. 18. 
 
 1 7. The powers conferred by the next preceding section Power given 
 shall extend to all and eveiy the person or persons in whom ^^J"'*^ section 
 the estate devised is for the time being vested by survivorship, survivors, 
 descent or devise, or to any person or jiorsons a])pointed under devisees, etc. 
 any power in the will or by the High Court to succeed to the 23 V. c. .35," 
 trusteeship vested in such devisee or devisees in trust as afore- » 15. 
 
 said. R. S. O. 1887, c. 110, s. 19. 
 
 18. If a testator wlio creates such a charge as is described Executor to 
 in section 16 does not devise the real estate charged as fj^gfno'",^oney 
 aforesaid in such terms as that his whole estate and interest whore there la 
 therein become vested in any trustee or trustees, the execu- ^gyi^'J*^"'!^* 
 tor or executors for the time being named in the will (if Act, 22-2.S v.' 
 any) shall have the same or the like power of raising ^- ^' **• ^^• 
 the said moneys as is hereinbefore conferred upon the de- 
 visee or devisees in trust of the said real estate ; and such 
 
 powers shall from time to time devolve to and become vested 
 in the person or persons (if any) in whom the executorship is 
 for the time being vested ; but any sale or mortgage under this 
 Act shall operate only on the estate and interest of the testa- 
 tor. R. S. O. 1887, c. 110, s. 20. 
 
 1 9. Purchasers or mortgagees shall not be bound to inquire Purchasers, 
 whether the powers conferred by the preceding three sections of ^^'^r ""!^'^°""d 
 
 1 • A !• 1 Till 1 1 ''" i"1"'re 8" 
 
 tills Act, 07' any 01 them, have been duly and correctly exer- to exercise of 
 cised by the person or persons acting in virtue thereof. R. S. O. if Y^'m a^ v^' 
 1887, c. 110. s. 21. c 35,s.l7. ■ 
 
 'iO. The provisions contained in the preceding four sections Sections 10 to 
 shall not in any way prejudice or affect any sale or morttfage ^■1"°*' *'V . 
 already made or hereafter to be made under or in pursuance sales nor to 
 of any will coming into operation before the 18th day of^^t^^M'' 
 September. 18G5 ; but the validity of any such sale or mort- or in tail, 
 gage shall be ascertained and determined in all respects as if I'np- :A«t, 
 the said sections had not been enacted ; and the said several sec- g_ ig. 
 tions shall not extend to a devise to any person or persons in fee 
 or in tail, or for the testator's whole estate and interest charged 
 with debts or legacies, nor shall they affect the power of any 
 such devisee or devisees to sell or mortgage as he or they may 
 by law now do. R. S. O. 1887, c. 110, s. 22. 
 
 X,, 
 
 'i I . Where there is in any will or codicil of any deceased Direction to 
 person, (whether such will has been made, or such person ^'j' j^'^'' 
 has died before or after the 1st day of January, 1874, exercise-l bv 
 any direction whether express or implied, to sell, dis- [j^^''™^^'^^"^' 
 
 pose of, appoint, mortgage, incumber or lease any real person is ap- 
 estate, and no person is by the said will, or some codicil i"""M"^^" 
 thereto, or otherwise by the testator appointed to exe- same, 
 cute and carry the same into effect, the executor or executors 
 
378 
 
 Chap. 120. 
 
 TRUSTEES AND EXEQUTORS. 
 
 Sec. 21. 
 
 (if any) named in .such will or codicil .shall and may execute 
 and carry into effect every .such direction to sell, disjiose of, 
 appoint, incumber or lease such real estate, and any estate oi- 
 interest therein, in as full, large, and ample a manner, and with 
 the same legal effect, as if tlie executor or executors of the 
 testator were ajjpointed by the testator to execute and carry 
 the -same into effect. R. S. 0. 1887, c. 110, s. 23. 
 
 
 r 
 
 ^ 
 
 ^ 
 
 \ a! 
 
 
 -M 
 
 ■111 
 
 «"i 1 
 
 Administrator 
 witli will an- 
 nexed may 
 exeroist* piiw- 
 ers of .sale, 
 given to the 
 executor. 
 
 Rev. Stat. 
 0.69. 
 
 Or when no 
 one nainud in 
 the will to ex- 
 ecute |)ower.f 
 of sale, etc. 
 
 ExeoutorB, 
 etc., may con- 
 vey in |)iir- 
 Buance of a 
 contract for 
 sale made liy 
 deceased. 
 
 Uli. Where there is in any will oi- codicil thereto of any 
 deceased person, (whether such will has been made, or such 
 person has died before or after the first day of January, 1874, 
 any power to any executor or executors in such will to sell, 
 dispose of, appoint, mortgage, incumber, or lease any real estate, 
 or any estate or interest therein, whether such power is 
 express, or arises by implication, and where, from any cau.se, 
 letters of administration with such will annexed have been 
 l)y a Court of competent jurisdiction in Ontario committed 
 to any person, and such person has given the additional security 
 recjuired by section 58 of The Surrogate Courts Act, such 
 person .shall and mfy exercise every such power, and sell, 
 dispose of, appoint, mortgage, incumber, or lease such real 
 estate, and any estate or interest therein in as full, large, and 
 ample a nianneT, and with the same legal effect for all purposes, 
 as the said executor or executors might have done. R. S. 0. 
 1887, c. 110, .s. 24. 
 
 215. Where there is in any will or codicil thereto of any 
 deceased person (whether such will has been made or such per- 
 son has died before or after the first day of January, 1874,) any 
 power to sell, dispose of, appoint, mortgage, incumber, or lease 
 any real estate, or any estate or interest therein, whether such 
 power is express, or arises by implication, and no person is "by 
 the said will, or some codicil thereto, or otherwise by the tes- 
 tator appointed to execute such power, and letters of adminis- 
 tration with such will annexed, have been by a Court of com- 
 petent jurisdiction in Ontario, committed to any person, and 
 such person has given the additional security before mentioned 
 such jierson shall and may exercise every such power, and sell, 
 dispose of, ajipoint, mortgage, incumber or lease such real estate, 
 and any estate or interest therein, in as full, large, and amjilea 
 manner, and with the same legal efi'ect, as if such last named 
 person had been appointed by the testator to execute such 
 power. R. S. O. 1887, c 110, s. 25. 
 
 'iA. Where any person has entered into a contract in writing 
 for the sale an<l conveyance of real estate, or of any estate 
 or interest therein, and such person has died intestate, or 
 without providing by will for the conveyance of such real 
 estate, or estate or interest therein, to the person entitled or to 
 become entitled to such conveyance urnhn- such contract, then, 
 if the deceased would be liable to execute a conveyance, wert^ 
 ho alive, the executor, administrator, or administrator with 
 
Sec. 27 (4). 
 
 TRUSTEES AND EXECUTORS. 
 
 Chap. 129. 
 
 379 
 
 the will annexed (as the ca.se may be), of -such deceased 
 person, shall make and give to the person entitled to the 
 same a good and sufficient conveyance or conveyances of such 
 estates, and of such nature as the said decea.sed, if living, 
 would be liable to give, luit without covenants, excei)t as 
 against the acts of the grantor; and such conveyances .shall be 
 as valid and effectual as if the deceased were alive at the time 
 of the making thereof, and had executed the same, but shall 
 not have any further validity. R. S. 0. 1887, c 110, s. 20. 
 
 "iii. Every executor, administrator, and administrator with Duties and 
 the will annexed, shall, as respects the additional powers I'abiiiiies of an 
 vested in him by this Act, and any money or ass(;ts by him re- adminUtrator 
 ceived in consequence of the exercise of such powers, besuliject acting under 
 to all the liabilities, and compellable to discharge all the duties tht' Act"^" "* 
 of wh.atsoever kind, which, as respects the acts to be done by 
 him under such powers. Would have been imposed upon an 
 executor or other per.son appointed by. the testator to execute 
 the same, or in case of there being no such executor or person, 
 would have been imposed by law upon any person appointed by 
 law, or by any Court or Judge of competent jurisdiction to ex- 
 ecute such powers. R. S. 0. 1887, c. 110, s. 27. 
 
 /JU. Where there are several executors, administrators, or ad- Powers given 
 
 ministrators with the will annexed, and one or more of them ["y *'"* ^°* *° 
 ... , , 1 1 1 11 , • ,1 • two or more to 
 
 die, the powers hereby created shall vest in the survivor or survive, 
 
 survivors. R. S. 0. 1887, c. 110, s. 28. 
 
 [As to investment of moneys received for infants under 
 Life Assurance Policies, See Cap. 203, section 155, sub-s. 5.] 
 
 31. — (1) For the purposes of the next five sections of this interpre- 
 Act the expression " trustee " shall be deemed to include an **"t five ^" 
 executor or administrator and a trustee whose trust arises by sections, 
 construction or implication of law as well as an express trustee. " Trustee." 
 
 (2) The provisions of the said five sections relating to a Extend to 
 trustee shall apply as well to several joint trustees as to a sole i^'nt trustees, 
 trustee. 
 
 (3) The expression "instrument" shall include an Act of the "instru- 
 Legislature of Ontario. 54 V. c. 1!), s. 2 (1, 2, 4). ment." 
 
 (4) The said five sections shall apply as well to trusts Apply to all 
 created by an instrument executed before as to trusts created on *''"**''■ 
 
 or after the 4th day of May 1891 and the powers by the said 
 sections conferred are in addition to the powers conferred by the 
 instrument, if any, creating the trust ; Provided always that proviso, 
 save as in the .said sections expressly provided, nothing therein 
 contained shall authorize any trustee to do anything which he 
 is in express terms forbidden to do, or to omit to do anything 
 which he is in express terms directed to do by the instrument 
 creating the trust. 54 V. c. 19, ss. 3, 14. 
 
•.m 
 
 Chap. 129. 
 
 TRUSTEES AND EXECUTORS. 
 
 Sec. 28 (1). 
 
 
 1i- 
 
 t6 
 
 i 
 
 I 
 
 I 
 
 11' 
 
 Appointment 
 of agents by 
 trustees for 
 certain pur- 
 poses. 
 
 Imp. Act .")!- 
 62 V. c. 59, 
 <. 2. 
 Proviso. 
 
 38. — (1) It shall be lawful for a trustee to appoint a .solic- 
 itor to be his agent to receive and give a discharge for any 
 money or any valuable consideration of property receivable 
 l)y huch trustee under the trust ; and no trustee shall be 
 chargeable with breach of trust by reason only of his having 
 luaile or concurred in making any such appointment ; Provided 
 that nothing herein contained shall exempt a trustee from any 
 liability which he would have incurred if this section had not 
 been enacted in case of permitting such money, valuable 
 consideration, or property to remain in the hands or under the 
 control of the solicitor for a period longer than is reasonably 
 necessary to enable the solicitor to pay or transfer the same to 
 the trustee. 
 
 (2) It shall be lawful for a trustee to appoint a banker or 
 solicitor to be his agent to receive and give a discharge for 
 any money payable to such trustee under or by virtue of a 
 policy of assurance or otherwise ; and no trustee shall be 
 chargeable with a breach of trust by reason only of his having 
 made or concurred ir. making any such appointment ; Provided 
 that nothing herein contained shall exempt a trustee from any 
 liability which he would have incurred if this section had not 
 been enacted, in case he permits such money to remain in the 
 hands or under the control of the banker or solicitor for a 
 period longer than is reasonably necessary to enable him to 
 pay the c.ime to the trustee. 
 
 (3) This section shall apply onl}^ where the money or valu- 
 able consideratiori or property was or is received on or after 
 the 4.th day of May 1891. 54 V. c. 19, s. 7. 
 
 '49. — (1) No sale made by a trustee shall be impeached by 
 any cestui que trust upon the ground that any of the conditions 
 subject to which the sale was made, were unnecessarily 
 depreciatory, unless it also appears that the consideration for 
 the sale was thereby rendered inadequate. 
 
 (2) No sale made by a trustee shall after the execution of 
 the conveyance be impeached as against the purchaser, upon 
 the ground that any of the conditions subject to which the 
 sale was made were unnecessarily depreciatory, unless it 
 appears that such purchaser was acting in collusion with the 
 trustee at the time when the contract for the sale was made. 
 
 (3) No purchaser, upon any sale made by a trustee, shall be 
 at liberty to make any objection against the title upon the 
 ground aforesaid. 
 
 (4) This section shall apply only to sales made on or after 
 the 4th day of May 1891. 54 V. c. 19, s. 8. 
 
 Trustee com- 
 
 mitting breach 30. — (1) Where a trustee has committed a breach of trust 
 instieation of ^^ ^^^^ instigation or request or with the consent in writing of 
 beneticiary. a beneficiary, the Court may, if it thinks fit, and notwith 
 I^P- ■^°go ^' standing that the beneficiary is a married woman entitled f o 
 s. 6. ' 
 
 Sales by 
 trustees not 
 impeachable 
 on certain 
 
 f rounds, 
 mp. Act 51- 
 52 V. c. 59, 
 
 8.3. 
 
Sec. 32 (1). 
 
 TRUSTEES AND EXECUTORS. 
 
 Chap. 129. 
 
 381 
 
 her separate use, whether with or without a restraint upon 
 anticipation, make such order as to the Court seems just for 
 impounding all or any part of the interest of the beneficiary 
 in the trust estate by way of indemnity to the trustee or 
 person claiming through him. 
 
 (2) This section shall apply to breaches of trust committed 
 as well before as after the 4th day of May 1891, except where 
 an action or other proceeding was then pending with reference 
 thereto. 54 V. c. 19, s. 11. 
 
 31. — (1) It shall be lawful for, but not obligatory upon, powers of 
 a trustee to insure against loss or damage by fire any building trustees t<> 
 or other insurable property to any amount (including the mofwrt™' 
 amount of any insurance already on foot) not exceeding three Imp Act 51 
 equal fourth parts of the full value of such building or property, g. 7. " *'" ' 
 and to pay the premiums for such insurance out of the income 
 thereof or out of the income of any other property, subject to 
 the same trusts, without obtaining the consent of any person 
 entitled wholly or partly to such income. 
 
 (2) This section shall not apply to any building or property' 
 which a trustee is bound forthwith to convey absolutely to 
 any cestui que trust upon being requested to do so. 54 V. 
 c. 19, s. 12. 
 
 31a. [If] in any proceeding affecting trustees or trust pro- Relief of tru»- 
 perty [it appear.s] to the court] that a trustee, whether appoint- tfug teoJmi'oikl 
 ed] by the court, or by an instrument in writing, or otherwise, breach of 
 or that any person who in law may be held to be fiduciarily *'"«*• 
 responsible as a trustee, [is or may be personally liable for any ^g" 35 p '3. 
 breach of trust whether the transaction alleged or found to be 
 a breach of trust occurred before or alter the passing of this 
 Act, but has acted honestly and reasonably, and ought fairly 
 to be excused for the breach of trust, and for omitting to 
 obtain the directions of the court in the matter in which he 
 committed such breach, then the court may relieve the trustee 
 either wholly or partly from personal liability for the same.] 
 62 V. c. 15, s. 1. 
 
 LIMITATION OF ACTIONS. 
 
 3/J. — (1) In any action or other proceeding agains a trus- Aijplioation 
 tee or any person claiming through him, except where the j^^mi^atUm' "' 
 claim is founded upon any frau d or f raudulent br e ach of trus t to certain 
 to which the trustee was party or privy, or is to recover ^''^'^j 
 tr ust property . on Jhe proce eds thereof, still retained by the trustees. 
 trustee, or previously received by the trustee and converted ^^^- ^'' .,. 
 to his use, the following provisions shall apply : — g. 8. 
 
 (a) All rights and privileges conferred by any statute of 
 limitations shall be enjoyed in the like manner 
 and to the like extent as they woulil have been 
 enjoyed in such action or other proceeding if the 
 trustee or person claiming through him had not 
 been a trustee or person claiming through a trustee. 
 
882 
 
 Chap. 129. 
 
 TRUSTEES AND EXECUTORS. 
 
 Sec. 32 (2.) 
 
 I 
 
 r' 
 
 m 
 
 
 (6) If the action or other proceeding is brouglit to 
 recover money or other property, and i.s one 
 to which no existing statute of limitations, 
 applies, the trustee or person claiming through 
 him shall be entitled to the benetit of, and be 
 at liberty to plead, the lapse of time as a 
 bar to such action or other proceeding in the like 
 manner and to the like extent as if the claim liad 
 been against him in an action of debt for money 
 had and received ; but so nevertheless that the 
 statute shall run against a married woman entitled 
 in possession for her separate use, whether with 
 or without restraint upon anticipation, but shall 
 not begin to run against any beneficiary unless 
 and until the interest of such beneficiary becomes 
 an interest in possession. 
 
 (2) No beneficiaiy, as against whom there would be a good 
 defence by virtue of this section, shall derive any greater or 
 other benetit from a judgment or order obtained by another 
 beneficiary than he could have obtained if he had brought the 
 action or other proceeding, and this section had been pleaded. 
 
 (3) This section shall apply only to actions or other pro- 
 ceedings commenced after the llrst day of January, 1892, and 
 shall not deprive any executor or administrator of any right 
 or defence to which he is entitled under any existing statute 
 of limitations. 54 V. c. 19, s. 13. 
 
 ADMINISTRATION OF ESTATES. 
 
 Powers of 33. — (1) It shall be lawful for any executors to ])ay any debts 
 
 executors as to or claims upon any evidence that they may think sufficient, and 
 settling debts , . '^ '' ... •'.,•' , , „ 
 
 owing from or to accept any composition or any security, real or personal, tor 
 
 any debts due to the deceased, and to allow any time for pay- 
 ment of any such debts as they may think fit, and also to 
 compromise, compound, or submit to arbitration all debts, 
 accounts, claims and things whatsoever relating to the estate of 
 the deceased, and, for any of the purposes aforesaid, to enter 
 into, give and execute such agreements, instruments of compo- 
 sition, releases and other things, as they miiy think expedient, 
 without being responsible for any loss occasioned thereby. 
 
 (2) None of the powers in this section conferred shall take 
 effect, or be exercisable, by virtue of this Act, by any trustees 
 or executors, if it is expressly declared in the deed, will or other 
 instrument creating such trustees or executors, that such trus- 
 tees or executors shall not have such power. 
 
 (3) This section shall apply and extend to both present and 
 future trustees and executors, and to administrators upon in- 
 testacy and with will nnnexed and whether already appointed 
 or hereafter to be appointed. R. S. 0. 1887, c. 110, s. 31. 62 
 Y. c. 15, s, 2. 
 
 to their 
 estates 
 
Sec. 3G-. 
 
 TRUSTEES AND EXECUTORS, 
 
 Chap. 129. 
 
 383 
 
 I{4. On the administration of the estate of a deceased In caH.> of de- 
 per.son, in case of a deficiency of assets, debts (hie to the Jj^^^^J^'^^ ' ' 
 Crown and to the executor or afhuinistrator of the deceased debtx to rank 
 person, and debts to others, including therein respectively debts P"" ^"*"' 
 by judgment or order, and other debts of record, debts by 
 specialty, simple contract debts, and such claims for da»nages as 
 by statute are payable in like order of administration as simple 
 contract debts — shall be paid j^iri passu and vvitJiout any pre- 
 ference or priority of debts of one rank or nature over those of Not to atfe 
 another ; but nothing herein contained shall prejudice any lien lit^'i". 
 existing during the lifetime of the debtor on any of his real or 
 personal estate. R. S. 0. 1887, c 110, s. 32. 
 
 If claim 18 
 rejected and 
 notice given 
 an action niiiHt 
 be brought 
 within a cer- 
 tain period. 
 
 im. In case the executor or administrator gives notice in 
 writing referring to this section and of his intention to avail 
 himself thereof to any creditor or other person of whose claims 
 against the estate he has notice, or to the attorney or agent of 
 such creditor or other person, that he the executor or adminis- 
 trator rejects or disputes the claim, it shall be the duty of 
 the claimant to commence his action in respect of the claim 
 within six months after the notice is given, in case the debt 
 or some part thereof is due at the time of the notice, or 
 within six months from tlie time the debt or some part thereof 
 falls due if no part thereof is due at- the time of the notice, 
 and in default the claim shall be forever barred ; Provided Proviso, 
 always that in case the claimant shall be nonsuited at the trial 
 the claimant, or his executors or administrators, may commence 
 a new action within a further period of one month from the 
 time of the nonsuit. R. S. 0. 1887, c. 110, s. 33. 
 
 30, Where an executor or administrator, liable as such to As to liability 
 the rents, covenants or agreements contained in any lease or "f ex/icutoror 
 
 ,p 1 ",1 . liiiiij. administrator 
 
 agreement tor a lease granted or assigned to the testator or i„ respect of 
 intestate whose estate is being administered, has satisfied all covenants, 
 such liabilities under the said lease or agreement for a lease, *'''■' 
 as have accrued due and been claimed up to the time of 
 the assignment hereinafter mentioned, and has set apart a 
 sufficient fund to answer any future claim that may be made I?*^' ''^'^35^' 
 in respect of any fixed and ascertained sum covenanted or s. 27. , _ ' 
 agreed by the lessee to be laid out on the property demised, or 
 agreed to be demised, although the period for laying out the 
 same may not have arrived, and has assigned the lease, or 
 agreement for the lease, to a purchaser thereof, he shall be at 
 liberty to distribute the residuary personal estate of the de- 
 ceased to and among the parties entitled thereto respectively, 
 without appropriating any part, or any further jDart (as the case 
 may be), of the personal estate of the deceased, to meet any 
 future liability under the said lease, or agreement for a lease ; 
 and the executor or administrator so distributing the residuaiy 
 estate shall not, after having assigned the said lease or agree- 
 ment for a lease, and having, where necessary, set apart such 
 sufficient fund as aforesaid, be personally liable in respect of any 
 
HHi 
 
 Chap. 129. 
 
 THUSTEES AND EXECUTORS. 
 
 Sec. 30. 
 
 subsequent claim under the said lease, or agreement for a lease ; 
 but nothing herein contained .shall prejudice the right of the 
 le.s.sor, or those claiming under him, to follow the assets of the 
 deceased into the hands of the person or persons to or amongst 
 whom the .said as.sets may have been distributed. R. S. 0. 1887, 
 c. 110, ,s. 34. 
 
 1 
 ^ 
 
 
 r 
 
 i 
 I 
 
 1^' 
 
 ■i.-. 
 
 ■n, 
 
 Ae to liability 
 of executor in 
 renpect of 
 rents, etc., in 
 conveyances 
 on rent- 
 charge, etc. 
 Imp. Act 
 22-23, V. 
 c. 35, H. 28. 
 
 Distribution 
 of assets 
 under trust 
 deeds for bene- 
 fit of creditors, 
 or of the assets 
 of a testator or 
 intestate after 
 notice given by 
 trustee, 
 as^ii^nee, 
 executor or 
 administrator. 
 
 ii7. In like manner where an executor or administrator, liable 
 as such to the rent, covenants or agreements contained in any 
 conveyance on chief rent or rent-charge (whether any such rent 
 be by limitation of use, grant or reservation), or agreement for 
 such conveyance, granted or assigned to or made and entered 
 into with the testator or intestate whose estate is being ad- 
 ministered, has satisfied all such liabilities under the said con- 
 veyance, or agreement for a conveyance, as may have accrued 
 due and been claimed up to the time of the conveyance herein- 
 after mentioned, and has set apart a sufficient fund to answer 
 any future claim that may be made in respect of any fixed and 
 ascertained sum covenanted or agreed by the grantee to be laid 
 out on the property conveyed, or agreed to be conveyed,although 
 the period for laying out the same may not have ai-rived, and 
 has conveyed such |)roperty, or assigned the said agreement for 
 such conveyance as aforesaid, to a purchaser thereof, he shall 
 be at liberty to distribute the residuary personal estate of tiie 
 deceased to and amongst the parties entitled thereto respective- 
 ly, without appropriating any part, or any further part (as the 
 case may be), of the personal estate of the deceased, to meet 
 any future liability under the said conveyance, or agreement 
 for a conveyance ; and the executor or administrator so distri- 
 buting the residuary estate shall not, after having made or ex- 
 ecuted such conveyance or assignment, and having, where 
 necessary, set apart such sufficient fund as aforesaid, be per- 
 sonally liable in r&spect of any subsequent claim under the said 
 conveyance, or agreement for conveyance ; but nothing herein 
 contained .shall prejudice the right of the grantor, or those 
 claiming under him, to follow the assets of the deceased into 
 the hands of the person or persons to or among whom the said 
 assets may have been distributed. R. S. 0. 1887, c. 110, s. 35. 
 
 38. Where a trustee or assignee acting under the trusts of a 
 deed or assignment for the benefit of creditors generally, or a 
 particular class or classes of creditors, where the creditors are 
 not designated by name therein, or an executor or an adminis- 
 trator has given such or the like notices as in the opinion of the 
 Court in which such trustee, assignee, executor, or administra- 
 tor is sought to be charged, would have been given bj' the 
 High Court in an action for the execution of the trusts 
 of such deed or assignment, or an administration suit (as the 
 case may be), for creditors and others, to send into such trustee, 
 assignee, executor or administrator, their claims against the 
 person for the benefit of the creditors of whom, such deed or 
 assignment is made, or the estate of the testator or intestate, 
 
Sec. 40. 
 
 TRU.STEE.S AND EXECUTORS. 
 
 Chup. 129. 
 
 385 
 
 fas the case may be), the trustee, assignee, executor or achniii- 
 istrator .sliall, at tlie expiration of the time named in the said 
 notices, or the last of the said notices, for sending in such 
 claims, be at liberty to distriljute the proceeds of the trust 
 estate, or the assets of the testator or intestate (as the ease 
 may be), or any part thereof amongst the parties entitle<l 
 thereto, having regard to the claims of which the trustee, 
 assignee, executor or administrator has then notice, and .shall 
 not bo liable for the proceeds of the trust estate, or assets (as 
 the case may be), or any part thereof, so distributed to any 
 person of whose claim the trustee, assignee, executor or ad- 
 ministrator had not notice at the time of the distribution 
 thereof or a part thereof (as the case may be) ; but nothing in 
 tliis Act contained shall prejudice the right of awy creditor or 
 claimant to follow the proceeds of the trust estate or assets (as 
 the case may be), or any pait thereof, into the hands of the 
 person or persons who may have received the .same respec- 
 tively. R. S. 0. 1887, c. 110, s. 3G. 
 
 SUMMARY APPLICATION TO COURT FOR ADVICE. 
 
 I$J>. — (1) Any trustee, executor or administrator, .shall be Trustee, etc, 
 at liberty, without the institution of an action, to apply in "V*>: "Ui'^y ^°'" 
 Court or in Chambers in the manner prescribed by Kules of nianageiiRnt, 
 Court, for the opinion, advice or direction of a Judge of the "^ **'"»' v^o- 
 High Court on any question respecting the management oi't'^a » 
 administration of the trust property or the as.sets of a testa- 22-23 V. c. 35, 
 tor or intestate. »• 30. 
 
 (2) The trustee, executor or administrator, acting upon the 
 opinion, advice or direction given by the Judge, shall be 
 deemed, so far as regards his own responsibility, to have dis- 
 charged his duty as such trustee, executor or administrator, in 
 the subject matter of the said application : but this provision 
 shall not extend to indemnify a trustee, executor or adndn- 
 istrator in respect of any act done in accordance with such 
 opinion, advice or direction as aforesaid, if the tiustee, execu- 
 tor or administrator has been guilty of any fraud or wilful 
 concealment or misrepresentation in obtaining such opinion, 
 advice or direction. R. S. 0. 1887, c. 110, s. 37. 
 
 [As to costs see Cap. 51, sec. 119.] 
 
 ALLOWANCE TO TRUSTEES AND EXECUTORS. 
 
 40. Any trustee under a deed, settlement or will, any t'xecu- Allowance to 
 tor or administrator, any guardian appointed b\ the trustees. 
 Court, and any testamentary guardian, or any other trustee 
 howsoever the trust is created, shall be entitled to such fair and 
 reasonable allowance for his care, pains and trouble, and his 
 time expended in and about the trust estate, as may be 
 allowed by the High Court or Judge, or by any Master 
 or Referee thereof, to whom the matter may be rei'erred. 
 R. S. 0. 1887, c. 110, .s. 38. 
 z. 
 
i 
 
 r 
 
 'if. 
 
 
 8S6 
 
 Alliiw;lIlC<> t" 
 lir imule 
 tliciiKl" the 
 • KtnU' not 
 iM'fiiri- the 
 Court. 
 
 Chap. 129. 
 
 TKUSTEE8 AND EXECUTORS. 
 
 Sec. 41. 
 
 41. A Jiiilj;e of tlio High Court may, on application to him 
 I'or tho piupose,.settle the ainonntot'such compensation, iiltlioiigli 
 tiio trii.st estate is not before the Court in any action. 11. S. 0. 
 1S.S7, c. 110, s. 81). 
 
 Act toaiMily 4!4. Compensation may he allowed in the case of any trust, 
 
 to exi«tiiiK IV heretofore created, as well as in any to be hereafter cieated. 
 
 well an future t> tj /» louir 1 1 rv trv 
 
 trust*. "-• ^- C. 1887, C. 110, S. 40. 
 
 SnrroK'iite 
 .lud(?<' iiuiy or 
 ilcr .lu iiUow- 
 ancf to be 
 made to exe- 
 L'utor or admi' 
 nistrator out 
 of the estate 
 for hiH 
 trouble. 
 
 4JJ. The Judge of any Surrogate Court may allow to the exe- 
 cutor or trustee or administrator acting under a will or letters 
 of administration, a fair and reasonable allowance for his care, 
 pains and trouble, and his time expended in or about the exe- 
 cutorship, ti-usteeship or administration of the estate and ef- 
 fects vested in him under the will or letters of administration, 
 and in administering, disposing of and arrangingand settling 
 the same, and generally in arranging and settling the affairs 
 of the estate, and may make an order or orders from time to 
 time therefor and the same shall be allowed to an executor 
 trustee or administrator in passing his accounts. R. S. 0. 
 1887, c. 110, s. 41. 
 
 aUowaiice *^'^- Nothing in the next preceding four sections shall apply 
 
 ti.\e<i by the to any case in whicli the allowance is fixed by the instrument 
 instrument, creating the trust. R. S. 0. 1887, c. 110, s. 42. 
 
H. 
 
 TRUSTEES AND EXECUTORS. 
 
 387 
 
 Jiiin 
 O. 
 
 led. 
 
 Ixe- 
 lers 
 
 ire, 
 \xe- 
 
 ef- 
 lon, 
 
 NOTES. 
 
 Liability for Acts of Co-Trustees. Sec. ;} is finui Lord St. Li-oimnrs Act 
 (±i it "23 X'ict. c. 3o) M. Ml, wliii'li was it'iiciilod in Kii^'ltiiiil iiiid ii new sfction 
 sulistitutiil l)\' i"i(i it .">7 Vict. c. ">;{, N. 2-1. Tlie Kuctioii iidiis iiotliiiij,' to llie 
 Kei'iuitv of a ti'ustt'i'. IJi'fore the net tlio jtrovisioDM tlicifof were virtually 
 iniiilied: Dawson v. Clarke (1811) IS Ves. iH ; II U.K. IMS; Worrall v. 
 Hiirf.ird (1802) H Ve.s. H ; Kin^ v. Hilton (ISSl) 'iit Cr. MSI. One exeentor jh 
 not liaUIe for a ilirnstiirit committed l)V another, \ndesK he has intentionally or 
 otherwise eontrilaited to it ; Williams on Kxors. itlh Ed. IT'iO. I5ut if, having 
 the means of knowledge l)y the exercise of ordinaiy vigilance, one trustee 
 stands hy and |)crniits a lileaeh of trust to he eonnnitted hy a eo-tnistee he is 
 lialile ; Sovereign v. Sovereign (18(i!l) l;')(!r. ."i")9 ; Citv Hank v. Maulson (1871) 
 .'U'h. Chaml). :m ; .McCarter v. MeCarter ( IH84) 7 O.R. 243, an.l he will bo 
 linhlc for any loss to the estate if he docs not get in a deht due hy his co- 
 oxccutor, and in eonsef)iiencc lands of the estate have to he sold ; Mel'ha<hlen 
 V. Bacon (I8(i7) 13 <lr. ">!)l. If an executor is merely passive hy not olistruct- 
 ing his co-executor from getting the assets into his possession, he is not 
 responsible ; King v. Hilton (1881) 2!) Or. 381. 
 
 But if by agreement between the executors, one is to manage one i)art of the 
 estate and the other another j)art, each is res|)()nsible for the whole; (till v. 
 Atty. (Jen. (KioS)) Hardr. 314, and if one of seveial is by arrangement 
 ajipointed acting executor a<lministiator all are liable ; Lees v. Sanderson 
 (183(1) 4 Sim. 28 ; Micklehurgh v. Parker (1870) 17 Or. "•(•3, and if all join in 
 making a sale, and allow one to receive the money all are liable ; Burrows v. 
 Walls ( 185.5) '> 1). M. & (i. 233. An executor who ii)iiiiri:.i.iiiri/i/ does an act, by 
 which his co-executor obtains sole possession of part of the estate is liable for 
 the co-executor's niisapplieation of it ; Candler v. Tillett (1835) 22 lieav. 2.')7 ; 
 Re Oas(iuoine (1894) 1 (Jh. 470. Merely' joining in a conveyance and allowing 
 a co-executor to receive the purcha.se money without knowledge tliat there 
 would be any surplus after paying debts and encumbrances, and witlumt 
 knowledge of anv misa])i)ropi'iati<)n will not create liability Re Cnnvtei', 
 Crowter v. Hinman (1885) 10 O.R. 159. 
 
 Ae<|uiesccnee in the employment by a co-trustee of the tru.st numeys in his 
 business will make a trustee liable ; Archer v. Severn (1887) 13 O. R. 31(1. 
 
 If one executor should be a banker or a stock broker and a deposit with a 
 banker or the employment of a stock broker to sell securities would have been 
 pro])er in the onlinary cour.se, the co-executor will not be liable for hjss in 
 making a deposit with or employing him ; Churchill v. Hobson (1713) 1 P. 
 Wm.s. 241 ; Chambers v. Minehin' (1802) 7 Ve.s. 198; Re (Jasqnoiiie (1894) 1 
 Vh. 470 ; but this is a mere (|uesti()n of selecting' a proper agent ; Joy v. 
 Campbell (1804) 1 Sch. k Lei. 341 ; Speight v. Oauiit (1883) 22 Ch. 1). "727, 
 "44. It is not incumbent on one executor to try to prevent by force money 
 from getting into the hands of another ; Langford v. Oascoyne (1805) 11 Ves. 
 333 ; 8 R.R. 170. 
 
 The indemnity clause will not protect a trustee from liability for breach of 
 his<luty ; Knox^ v. MacKinnon (1888) 13 App. Cas. 733 ; Rae v. Meek (1889) 
 14 App. (2a8. 558. 
 
 A special indemnity clause will protect a trustee from liability for the acts 
 of his co-trustee. In Wilkins v. Hogg (18(51) 3 Oiti'. IKi, the clause was 
 " that any trustee who shall pay over to his co-trustee, or siiall do or concur in 
 any act enabling his co-trustee to receive any moneys, shall not be obliged to 
 see to the application thereof ; nor shall sucli trustee be subse(juently rendered 
 responsible by an express notice or iivtiniation of the actual misapplicatiiui of 
 the same moneys," and one trustee niisa])plicd moneys which iiis co-trustees 
 had enabled him to receive, the co-trustees were lield to be .saved from lialiility, 
 though otherwise their negligence would have rendered them resiionsible. 
 This case was followed in Pass v. Uundas (1881) 43 L.T. 005. 
 
 Employment of Agent. A trustee cannot delegate to others the confidence 
 leposed in himself, but he may in the administration of the trust fund avail 
 himself of the agency of third parties such as bankers, lirokers and others, if 
 
388 
 
 TRUSTEES AND EXECUTORS. 
 
 
 
 
 he does so fnjiii a iiioial iiec-essitv or in tlie regular course of laisiness ; Kx 
 Parte Helchier (IT'ili) Anil). --'IS ; "Speight v. (iauiit (1883) 9 Apj). Cas. '., '2SS. 
 Hut iieitlier tliis doetriiie nor tlie statute autiiorizes a tru.stee to delegate at 
 his own mere will and ])leasure, the execution of the trust, and the care and 
 custody of the trust moneys to strangers in any case in which there is no moral 
 necessity from the usage of mankind for the em|)loymcnt of su(Oi an agency : 
 (Speight V. (iaunt (1SSS)9 App. Cas. 1. NeccHsit\' includes the legular course 
 of hu-sincss ; Clough v. Hond, (1837) H Mvl. & ("r. 49(1; Hlvtli v. Flmlgate 
 (1H!)1) 1 Ch. 337, 300; Kockport v. «eaton"(18!)(i) I I. H. IS. 
 
 Allowing a notary or solicitor to have possession and entire control of trusts 
 funds is such default as will make a trustee responsilile for loss ; Low v. 
 Geinlcy (1890) 18 S. C. R. 08"). A solicitor should not he allowed to receive 
 dividends of a fund set apart for an infant; (iilroy v. Stephen (1882) 51 L. J. 
 Uli. 834. Trustees shoidd inspc' the securities alleged to l)e held for the 
 trust estate ; Clark v. Bellamy \\mK)) 19 C. L. T. 174. 
 
 Where a trustee employs an agent to collect dehts under circumstances 
 which make such em]»loymcnt jiropcr and the money is lost hy the agent's 
 insolvency, the hnrden of |)roof is not on the execuloi- to show that the loss 
 was not attrilii'talile to his own default, hut on the ])ersrin'i . eeking to charge 
 him to jirovc that it was ; Ke Hrier, Hrier v. Kvison (1S84) 20 Ch. J). 238. 
 
 In making investments in securities ordinarily bought on the stock exchange, 
 the enij)loyment of a broker for the jjurpose of purchasing those securities and 
 doing all things usually done by a l)roker which may l)e necessary for that 
 pur])ose is //)•/»((( ,/J((/(- legitimate and ])i()per ; Speight v, (Jaunt (1882) 22 Ch. 
 L). 727 ; 9 A])|). Cas. 1, l)ut it may be that, howevci- usual it may be for a 
 person who w ishes to invest his own nuiney and instructs an agent such as an 
 attorney or stock broker to .seek an investment, to de])osil the money at 
 interest with the agent till the investment is found, that is in etlect, lending it 
 on the agent's own per.sonal sccuritv and is a breach of trust, per Lord Black- 
 burn (1883) 9 App. Cas. I" Kobiii.son v. Harkin (18!)0) 2 Ch. 41'). 
 
 AVhen h)ans are made in tran.sactions not governed by the rules of the stock 
 exchange, and it is found convenient to send the money tinoiigh a broker, 
 solicitor or other agent, this may l)e done by che<|ue jwyable to the bori'ower 
 on his order : Rowland v. Witherden (IS'd) 3 Mac. & <i. 508 ; Floj'er v. Ros- 
 tock (1805) 35 Reav. (J03 ; per Lord JSelborne (1883) 9 App. Cas. 11. 
 
 To ah.solve a trustee from li«l)ility for lo.ss by bankers, agents and other pcr- 
 .sons it is necessary that he should not deviate from the line of his duty. If 
 he allows money which ought to be invested to lemain on deposit with a 
 banker an uniea.sonable length of time, he is responsible for anv loss caused bv 
 the banker's insolvencv : Fletcher v. Walker (1818) 3 Madd. 73; 18 R. R. 
 195 ; Newton v. Reid (1831) 9 L. J. (). S. Ch. 273 ; Lowry v. Fulton (1838) 9 
 Sim. 1 15 ; Moyle v. Moyle (1831) 2 Russ. & M. 71U ; Astbury v. Beasley (1809) 
 17 ^^'. H. 0.38, and will be liable for the loss in interest ; S])ratl v. Wilson 
 (1890) 19 (,). R. 28. In many cases, however, the circumstances have been 
 such I's to justifv the course of the trustee, and he accordinglv has been exon- 
 erated ; Rowthv. Howell (1797) 3 Ves. 507; Swinfen v. .Swinfen (1800) 29 
 Reav. 211 : Fenwick \-. Clarke (1802) 4 l)e(i. F. & J. 240; Johnson v. Newton 
 (1853) 11 Hare 100 ; Wilks v. (iroom (1854) 3 Drew 584. 
 
 Entrusting a solicitor of good repute with the money to pay a debt of the 
 estate which had been said by liim to have been eomijromised bv the solicitor 
 
 prop 
 
 ■r act, an<l the trustee is not lial)le f(U' tl 
 
 iiprt 
 
 le misap))i'oi)riation o 
 
 f Ihi 
 
 iioney : Re Rird, Oriental Connnercial Rank \. Savin (1873) L. R. 10 Ki). 203. 
 Misap))ropriation of a deposit by an auctioneer in good credit d\ning delay 
 
 in comi)letion of the .sale is an act for w 
 liable : Kdmonds v. I'eake (1843) 7 Be 
 
 i\ . 
 
 thirli executois were held not to bo 
 i39. 
 
 Wl 
 
 •re executors renntted !iM.nc\' to then' si 
 
 ilicit 
 
 ir t( 
 
 ))itair. i)rol)ate they 
 
 were held not to lie responsible thelefor, b\it wcic held lialile for money sent 
 to him jncmaturely to pay legacy duty: Castle v. Wailand (181)3) 32 Beav. 
 000. The executors may l)e exonerated by following the rcconnuendalions or 
 course oi ))\isiness of the testator, as w here they em]iloyed an agent to collect 
 
 not guilty of any ilefinU in not 
 
 del It- 
 
 niUMided by the lestatoi', and 
 
 making him account : ivilbee v. Sneyd (1828) 2 Moll. 180 : Burritt v. Burritt 
 (1881) 29 (Jr. .321 ; and where they dcjiosited moneys with tlie 
 
 same pcisons as 
 
 the testator had entrusted with his nionevs thcuigii they weie nol bankers ; 
 Dorchester v. Kllinyham (1829) Taml. 279 ; 31 R. R. 97. 
 
Ex 
 •29. 
 
 fe lit 
 anil 
 liiural 
 liicy ; 
 l)iii'se 
 jlgate 
 
 I rusts 
 |w ^. 
 Icoive 
 |L. J. 
 
 llie 
 
 aiige, 
 
 iiiiil 
 
 Uiat 
 
 I'll. 
 
 f(ir a 
 
 as an 
 
 L'v at 
 
 
 TRUSTEES AND EXECUTORS. 
 
 A tiustL'o who L'ni])loys an agent to do that wliiuli is not thi- oiilinaiy Imsi- 
 iiess of such an agent is liahh' for any loss oecasioned l)y sucli agent pcifoiining 
 tluit uinisiml duty iinpniperly, as wlieie a London auetioneer (the uioitgagor's 
 agent) without any h)ual knowledge was employed to value incjpeity at Liver- 
 pool consisting of a large residence and grounds : Frv v. Tapson ( \HM) 'JS Ch. 
 1). '2tiH. 
 
 Section "28 (see iii/rd) authorizes the appointment of solicitors and hankers 
 to receive jjurcliase, insui'ance and other moneys and relievi's trustees frimi 
 liahility in the event of defaidt. 
 
 Remunerated Trustees. In Speight v. (iaunt (ISS.'i) !) Ap)). ('as. L stress 
 was laid upon the fact that the trustee gave his services gratuitously. A 
 remunerated trustee who is not guilty of negligenei! in the selection of servants 
 or agiMits is not i'i's])onsil>le for lo.ss any moie than a gratuitous trustee : Raw 
 V. Cutteu (lSH-2) !) Bing. ',10; ;J.5 R. R. ."ilS; .loh.son v. I'almer (ISiW) 1 t'h. 71. 
 
 Reimbursement. A trustee was always entitled to he reiinhursed his expen- 
 ses out of pocket; Worrall v Harford (1S02) 8 Ves. 8; Re 'I'ilsonhurg Lake Erie 
 and I'acilic Ky. Co. (1S«)7) 21 A.R. .S78 ; Hughes v. Rees (18S4) 10 I'.R. 8(11. 
 
 He will he allowed the expenses of employing an agent, accountant or .solici- 
 tor in proper <:ases, hut not the charges of a solicitor for doing work which the 
 executor ought to do him.self ; Lewinon Trusts, 8 Ed. (i32-G3!t; Harhin v. Darhy 
 (1800)28 Heav. 32.-): Watson v. Row (1874) L. R. 18 E(|. 0811; Re Ornnod 
 (18i)2)2Ch. 318; Hamilton v. Tiglie (18!IS) 1 ,1. R. 12.3. The expenses area 
 first lien; Lewin on Trusts, 8tli Ed. 0.3!) ; Re Tilsonhurg Lake Erie and Pacific 
 Ry. Co. (1807) 24 A.R. 378 ; .Stott v. .Milne (1884) 2,-) Ch. I). 71."). 
 
 Aiid in an action against a trustei; for administration he is entitled to his 
 costs as a matter of contract, and can he de))rived of them only for misconduct; 
 hut the nu're fact that he denies heing indehtcd, and on taking his accounts, 
 he turns out to he indehti-d, is no reason foi' depriving him of cost>'; Turner v. 
 Hancock (l88-_>) -20 'Jli. I). 303 ; Sanford v. Porter (1889) 10 A.R. .)0.". ; Walters 
 V. Woodbridgo (1878) 7 Ch. 1). 504. 
 
 Appointment of new Trustees. S. 4 is known as Lord Cranwortli's Act ('23 
 iS: 24 Vict. c. 14.")) s. 27. Section 10 of .")(i Ik. ")7 Vict. c. 53, has now lieen sub- 
 stituted for it in England. It ('oes not ai)))ly to a trtistec! leaving the cianitry; 
 hut such may h(' a ground for removal hy the Ciau'l ; Cray v. Hatch (I8"I) 
 18 (Ir. 72. The donee of the ))ower iniulit apjioint two Irustees in the place of 
 a sole trustee; McLachlin v. I'shorne (1S,S4) 7 O.R. 297 ; Re Hreary (1873) W. 
 N. 48 : or one in the place of two ; Re Cunningham ( 1877) W.\. 258 ; We.st 
 of England and S<mth Wales District Rank v. .Murch (1883) 23 Ch. 1). 138; 
 l)Ut two trustees wouhl not he justified in retiring at the same time and ai)point- 
 ing a single trustee in their place; Hulme v. Huhue (1833) 2 Myl. it R. 082. 
 
 The discretion given to the donee of the )>owei' will not he interfcied with l)y 
 the Court if he is desircms of exercising it ; Re Cadd ( 1883) 23 Ch. 1). 1.34; Re 
 Higginhottom (1892) 3 V,\\. 1.32; McLachlin v. Ushorne (18S4) 7 C).R. 297. hut 
 he cannot appoint himself ; Re Skeat (1889) 42 (,'li. I). .">22. 
 
 Desire to be Discharged. Trustees who pay the trust fund into Co\nl thereby 
 retire and cannot he treated as desirous of heing di.scharged ; Re Bailey (1855) 
 3 W, R, 31 ; but they may fall uiuler the category of refusing to act ; Re Wil- 
 liams (1857) 4 K. &J. 87. 
 
 Refuses to Act. It has been dimbted whether a trustee who disclaims can be 
 said to be a trustee who refu.ses to act, but the better oi)inion seems to be that 
 he comes within the power given i)y the act ; Tiavis v, Illingwoith (1804)2 I)r, 
 & Sm. 344 ; See Lewin on 'J'rusts 8th Ed. O.IO. 
 
 Unlit to Act. Temporary al)seni'e abroad is not untitness ; Re Moravian 
 Society (1858) 20 Beav. 101 ; but it has been said that a settled residence abroad 
 would be ; Masnard v. Welford (1853) 22 L.J. V\\. 1053 ; Bankruptcy is unfit- 
 ness ; Re Adams (1879) 12 Ch. 1). 034 ; see Re Hopkins (1881) 1« Ch. 1). «1. 
 
 Incapable to Act. This means personally incapable; Re Watts (1852) 9 Hare 
 100 : Re Easi (1873) L.R. 8 Ch. 73,"). 
 
 Appointment by Will. A surviving trustee has no power to make an ap|)oint- 
 ment of his successors by will ; Re Parker's Trusts (18514) 1 (-'h. 707, 
 
 Who may be Appointed. A person beneficially interested and even the tenant 
 for life may lie appointed ; Forster v. Abraham (1874) L.R. 17 Etj, 351, and an 
 a]ipointment of the husbands of two married women who were riusfiilt qui' /rnit 
 
 389 
 
§ 
 
 ^ 
 
 r 
 
 I 
 
 390 TRUSTEES AND EXECUTORS. 
 
 was lield to he viilid ; McLni'liliii v. Usboriie (1884) 7 O.K. 297. An appoint- 
 nioiit ill toiiHidoiation of nioiiuy paid to tlie donuo i.s invalid ; Sugden v. Cro.ss- 
 land (185")) 3 Sin. it (J. lO'i, If a trustuu rotires to oiiai)k' a new trustc^e to be 
 ap))oiiite<l to eoiiiniit a liroacli of tnust lie will ((iiitiniie le.spoii.silile ; Lewin on 
 Trusts, 8th Kd. (i(i8 ; Web.ster v. Le Hunt (1861) !) \V. K. !)18 ; Clarke v. 
 Hoskins (1887) 37 L. J. Ch. 361 ; Head v. Gould (1898) U T. L. R. 444. 
 
 Retirement before Appointment. A trustee cannot retire from the trust 
 witli(rut seeiiin tliat a new trustee is appointed anil the appointiiient eonijileled ; 
 Peaice v. I'earee (18,56) 'l-l Heav. '248. 
 
 Administration Suit. A judgniiMit for adniiniRtration will not take away the 
 power to apjioint new trustees but the donee can exerci.se it only subject to 
 the supervision of the (Jourl ; He ( iadd (1883) 23 Ch. D. 134. 
 
 )f 
 
 1 
 
 Death of Trustee before Testator. Tlie provisions of suli-section 
 
 s. 4 
 apjjly to the case of one of several trustees appointed by the will, but where 
 all the trustees nominated by a will predecease the testator, there is no power 
 to make an appointment; Nicholson v. Field (1893) 2 Ch. 511. 
 
 Vesting Declaration. S. fi is similar to s. 12 of Imperial A(!t 56 & 57 Vict, 
 c. 53. Ujioii llie appointiiient of new trustees the trust property must be 
 transferred to tiiciii. Uefore tiie jirovisions of s. 5 were enacted it was neces- 
 sary that the transfers should be executed by tile Jiersons in whom the legal 
 estate was vested though flicy had notliing to do with the appointment of the 
 trustees. The act abolishing primogeniture! did not extend to trust estates 
 Mhicli tlicrcfore descended to the heir unless devi-sed bj- will, see R.S.O. c. 127, 
 s. 59. It would a])j)ear that as to trustees dj'ing after 1st July, 1886, lands 
 vested in them in trust wiaild (lass to tiieir jier.sonal rejiresentatives ; R.S.O., 
 c. 127, s. 37. Ariiumr on Titles 2iid. Kd. 290. A vesting declaration will vest 
 the propcrtv in the new trustees althougli the jicrsons making the ai)))ointment 
 had no estate tlicrein ; Re Hunter v. Patterson (1892) 22 O. R. 571, and may 
 have a greater cllect than a conveyance from the trustee ; London and County 
 Banking Co. v. Goddard (1897) 1 Ch. 602. 
 
 Form of Declaration. Tlie following form of (kclaratioii may be used or 
 altered to suit circumstances ; " And the said (a])pointoi) iiereby declares that 
 all llie freeliold land and hereditaments comjniscil in the said indenture of 
 settlement and thereby limited to the use of the said (former trustees) shall 
 fortliwith and witlumt any assignment, vest in the said (continuing and new 
 trustees) as joint tenants upon tlie trusts att'ecting the .same under tiie said 
 indenture"; I'ridcaux on Conveyancing, 14lh Kil. Vol. II., pp. 623, 624, 
 637, 639. 
 
 Powers and Authorities, 
 as if 
 pow 
 O.R. 694 
 
 Vendor and Purchaser Act. The 6tli section is from the English Vendor and 
 Puri'liaser Act, 1874, 37 & 38 Vict. i;. 78 s. 3 ; which has been repealed in 
 England and a similar section sulistituted ; 56 & 57 Vict. e. 53, s. 15. 
 
 bare Trustee. A bare trustee is one who has no duty to iierform, and who 
 on rccjucsl would lie coiiijh liable to convey or transfer to his nstiii qut tnisl : 
 Christie v. Ovingtoii (187(i) 1 Ch. 1). 279. This d'tinitioii would seem to be 
 recognized by s. 31 (2) infra. It was criti(Msed in Morgan v. Swansea Urban 
 Sanitary Anthiiiity (1878) 9 Ch. 1). 582, where .lessel, M.R. decided that n 
 trustee who liad anv licnelicial inierest was not a bart! 'rustee. In liie subse- 
 (pieiit case of Re Dowcra, Dowcia \. Kailii (1885) 29 Cii. 1). 693, Haeon, V.C., 
 held that married women who had 'icicticiai interests, but who were bound to 
 convey lands by reason of an admiiiistration decree, A\ere iiare trustees. The 
 section would seem to be iniimjioitaut as to trustees dying since 1st July, 1886, 
 since tlie Devolution of Estates Act would cai ry the estate to the personal 
 re])i'csentativcs in any case, set supra. In England, trust and mortgage 
 estates now descend to the personal representatives ; Convoyaneiiig, &c. Act, 
 1881, s. 31). 
 
 Married Women. S. 8 is from the English Vendor and Purchaser Act, 1874, 
 
 (37 it 38 \'ict. c. 7^) B. 6 now repealed and a similar section, 56 & 57 Vict. 
 
 e. 53 s. Hi sulistituted. l-veii if the married woman has a licnelicial interest 
 
 she mav be a bare trus'ee under the section; He Dowcra, Dowcia v. Faith 
 
 1885) 2<)t:ii. I). ()93. 
 
 A new trustee has the same powers and authorities 
 f he had originally been appointed by the trust deed, although some such 
 .-CIS may not extend to assignees; Re Gilmour and White (1887) 14 
 
TUISTEKS AND EXECUTORS. 
 
 391 
 
 llDt- 
 
 |(IS.S- 
 
 • 111 
 
 V. 
 
 ■I'USt 
 
 tlie 
 It to 
 
 Payments to Trustees. Section It wiis oiiginallv fiiactcd in Caiiadti '>y 1'2 
 Vict. <■. 71 H. 1". It luloiitcd as to jiayiiii'iita to Hurviviiig iiioit L;a<;i'('s or tlieir 
 reiJiiKfiitivtivcs the i<>i)t'ale(l Knglisli Statute 7 & H Vict. c. 70. Tliu section 
 is on the same lines as the Knglish enactineiits ; I.,oiil St. Leonard's .\ct i'-i & 
 28 Viet. c. 3.">. s. 23), Lord ('rainvorth's Act (24 & 2.") \'i(t. c. 14.")) s. 2!) (which 
 deals only with receipts in writing) and The ('oiivevanuing and Law of Pro- 
 perty Act, 18.S1 (44 & 4.") Vict. c. 41) s. 3(i (see now' 0(1 & "(7 \'iet. c, .").•? s. 20, 
 which is also limited to receipts in writing). The iiayiiient to he good must he 
 in money ; Dilke v. Douglas (1S80) .5 A.R. (W, and must he lionn liih ; Lewin 
 on Trusts, 8th Kd. 4r)7. 
 
 If lanils are devised to an (^\•ec^ltol■ charged v ith dclits aii<l legacies, a ))ui ■ 
 chaser from him is not liouiid to see to thi^ apjilication of tlie purchase iiioiiev ; 
 McMillan V. McMillan (1874) 21 (ir. r)!)4 : Moore v. Mellish ( 1883) :! O.K. 174 ; 
 hut a purchaser from a devi.see of laii<ls charged with the iiaymeiit of legaeios 
 must see that the legacies an; ])aid ; (iray v. Uielimond (18!(2) 22 O.K. 2")(i. 
 Where a trustee sells land devised to him liy a will, an execution creditor of a 
 lieiieficiary entitled to a share of the monc^v has no charge upon the land and a 
 purchaser is not hound to see to the application of the money : lie Lewis and 
 Thoriie(1887) 14 O.R. 133. 
 
 Payment into Court. Where a trustee dies or has lieeii ahseiit frnm the i'ro- 
 viiice for more than a year and is nut likely to return )iersoiis holding the tru.st 
 moneys may ohtain a discharge hy paying them into court ; ()2 V. c. 1.") s. 3. 
 
 Survival of Actions. Sections 10, 11 and 12 suhject to the i xpress exceptions 
 and limitations contained therein have practically aholisheil theaucient common 
 law rule as to torts exjire.ssed hy the maxim adio i>i rxoiiitUx iiinritiir cmii 
 perxoiin. An action hrought hy the deceased in his lifetime may he revived hy 
 his representative.s ; Mason v. i'eterhorough (18!(3) 2(1 .A.R. ()S3. The history 
 of the former state of the law will he fouiul in Williams on Kxecutors, Oth Kd. 
 695, et. .<«(/, 
 
 Distress toy Executors. Sections 13 and 14 are from Inii)erial Act 3 & 4 Wm. 
 IV. c. 42 ss. 37, 38 ; see Williams on Exors. itth H<1. 800. The sections were 
 formerly iieces.sary as hy the common law it was necessary that there should 
 he a reversion in the distrainor and personal representatives as such had no 
 titl(! to the deceased's real estate, and therefore no reversion. Now that all 
 lands vest in the personal representative there would appear to he no necessity 
 for contiiuiing the sections. 
 
 Joint Debtors. At cominoii law after the death of one joint dehtor the sur- 
 vivor alone was liahle ; Lanihton v. Collingwood (KiO.")) 4 Mod. 31."), and the 
 rule was the same in ecpiity ; Richard.son v. Norton (184()) Reav. 18.1, exiept 
 in the ca.se of partnership dchts ; Kendall v. Hamilton (1870) 4 App ('as. r)04. 
 Where the delit was joint and several, the executors of a deceased ilebtor 
 would l)e liahle, Imt could not he .served with the summons : .Mav v. Wood- 
 ward ( 1()7()) 1 Freeni. 248 ; Hall v. Huflam (100(1) 2 Lev. 228. This is still the 
 law of Kiigland. The law of Scotland was dillerent and our legislature at an 
 early date enacted the provisions of s. 1.") in eonforinity with Scottish Law : 
 I Vict. c. 7, ss. I. 2. 
 
 Sales of Real Estate by Executors. Sections 10 to 23 were iiei'cssaiy in the 
 days \\ hen real estate did not vest in executors. If the testator charged his real 
 estate with the payment of del)ts or legacies and <le\ised the same to trustees, 
 it was llu^n necessary that some person should haxc ])ower to raise thcmonoy 
 with which the land was charged. If the real estate was devised in fee or in 
 tail charged with debts and legacies, the executors were given no power over 
 it, anil a purchaser or mortgagee was relieved from seeing to the apiilicatiini 
 of the moiiev, hut not where charged with legacies onlv ; (fr.iv v. Kichmond 
 (1802) 22 O.R. 2")(i. Sees. 20-23 have no Knglish iMjuivalcnt. Since 1st .July, 
 188(i, unless the property is devised to the executors as trustees the Devolution 
 of Kstates Act authorizes the dealing hy the exi'ctitor with tlic property. Rut 
 if the executor derives title to the pro)iertv under the will he may mortgage 
 for payment of debts ; .Mercer v. Nell' (bSO.S) 20 O. R. 080 ; anil if the testa- 
 tor lias been dead less thaii twenty years the iiurchaser or mortgagee is not 
 bound to eni|uire as to debts ; Re Bailcv ( 1870) 12 < 'h. I). 273 ; Ke Tamnierav 
 (1882) 20 Ch. 1). 470, except in the case "of leaseholds; He Whistler (IS,87) 3".') 
 Ch. 1). ")01 ; Re Venn and Kiir/.e (18.04) 2 ( 'h. ltd. 
 
 'm 
 
392 
 
 TUUSTEES AM) EXECUTOItS. 
 
 I 
 
 I 
 
 i 
 
 Speciflo Perlormance. It will he noticed that s. iJ4 applies us well wheie the 
 (leeea.sod died icilewtatu as where he left a will. 
 
 Trustees. A tiustee within s. lJ7 ineliideM diiector.sof a ooniiiauy ; He Lands 
 AUtitMinit Co. (lHi)4) 1 Cli. (il(i ; a solicitor who reeeives tni.sts money and 
 does not account ( IS93) "2 (^t. 15. .SilO ; a trustee ile son tort ; Maia v. Browne 
 (18!).".) -1 Cii. ()!», !»4 ; Imt not a mere soli(-itor to trustees, s.u. (ISiHi) 1 (Jii. lit!). 
 
 Solicitors and Bankers. Section 27 is from ol & .52 Vict. e. oO s. 1. Section 
 2 of .")] Ik .")2 V'i. t. c. 2i) (The Trustee Act, 1S8S) from which s. 28 is taken was 
 enacted as an extension of s. "id of the (.'onveyancing etc., Act of 1881, which 
 exonerated a purcha.ser who ))aid money to a solicitor where he ))i()duced a 
 deeil havini^ in the liody thereof or enilor.sed thereon a I'lMU'ipt for tiie : onsidera- 
 tion monev. This was held not to a))plv to a case where the vendor was a 
 trustee; Ke Hellaniy and Metropolitan IJoard of Works ( 1888) 24 Ch. 1). .S87. 
 The Knt^lisli section is now replaced liy 7A\ & 57 \'i<.t. c. 53, s. 17. .Section <56 
 was not reenacted in Ontario, notwitlistan(linj< the re-enactment of the ii"- 
 mediately jirecediiig .seeticms 54 au<l .")5 ; see R.S.O. c. 11!), s. 5 The ap])oint- 
 mcnt of the solicitor is suttiiiently made inider tlie Knglish .section liy entrust- 
 ing him with a ileed containing a recei))t. In Ontario it niaj' bo ovi('en(;e<l in 
 any way showing an a|)pointnient. 
 
 Section 28 will not authorize an attorney of a trustee to appoint a solicitor 
 or hanker to receive the trust moneys ; Re Hetling and ^lertons contract 
 (18!)3),'?Ch. 2(5!). 
 
 The .solicitor iiuist he trusted witli the deed hy the trustee. If he should 
 have stolen it or had not heen perniitte<l l)y the trustee to have the custody of 
 it the j)urehaser would not l)e protected ; Day v. Woolwich Kfpntahle Bldg. 
 Socy. (188!)) 40 Ch. I). 4!)l ; one of the trustees cannot he appointed to receive 
 the money; Re Flower and Metropolitan Hoard of Works (1884) 27 Ch.l)..")!)2. 
 
 Conditions on Sale by Trustees. Section 2!) is similar to 50 & 57 Vict. o. 33, 
 s. 14, whicii lakes the ))laee of The Trustee Act, 1888. A trustee might always 
 sell suhject to any reasonalih; conditions of sale ; Hohson v. Hell (18.S!)) 2 
 Beav. 17; including a condition for rescission in the event of being unalile or 
 miwilling to remove objections ; Falknei' v. Kijuitable Reveisionary Societj' 
 (18,57) 4 l)rew. .S.")2. But care had to lie taken not to imjiose conditions not 
 juslitied by the state of the title. The trustees might not r.ishly or imi.rovi- 
 dently introduce a de|)reeiating condition for which there was no necessity ; 
 Dance v. (Joldingham ;1873) L. R. 8 Cii. !)02. If such conditions were intro- 
 duced specific ])erformance woidd not be de('rceil either against the trustees or 
 against a purcha.ser ; Dunn v. Klodd (1883) 25 Ch.D. (12!) ; 28 (,'ii. I). .58;!, and 
 the trustees would have been restrained in an action by the (■e.-sliii (jiif, IriiM 
 from completing the sale ; Dance v. (toldingham (1873) L.R. !) Ch. !)02. 
 
 The f>nle will not now be imiieachable either before oi' after completion unless 
 made i'. ..a undervalue caused by the conilitions. 
 
 The piiiohaser wS not in any case be entitled to take the objection. 
 
 Indemnity for Breach of Trust. The original section fi'otn which h. 30 was 
 taken has l)een rci)laced in Kngland by 5() & 57 Vict. c. 53, s. 45. To entitle a 
 trustee to indenniity by his n-.s/iii (jiit- Iriitt, the nslni que. IriiM must instigate 
 or request or ('onsent in writing to some act or omission which is itself 
 a breach of trust, and not to some ait or omission which only becomes a 
 breach of trust by reason of want of care on the part of the trustee. He iinist 
 in oilier wonls know the facts which constitute the breach of trust. If a 
 fintiti <iii( Inift instigates, re((uests or consents in writing to an investment not 
 in terms authorized by the power of investment he clearly falls within the 
 section, and in such case his ignorance <ir forget fulness of the terms of the 
 jiower will not /irinitt fiicii protect him. But if all that a <-es/i(i <iiii: triisl does 
 is to instigate, re(|uest or consent in writing to an investment whicli is author- 
 ized by the terni^ of power the case is very diti'erent. He has a right to expect 
 that the trustees will act with pniper eare in making the investment, and if 
 they do not they cannot throw the conseiiuences on him, unless tlu^y can show 
 that ho instigated, reiinested or consented in writing to their non- performance 
 of their duty in this respect ; Re Somcr.set, Sonierset, v. Karl I'oulett (1894), 
 I Ch. 231. 
 
 .-\n instigation or re(|uest need not be in \vriting ; (iridith v. Hughes {18!)2), 
 3 Ch. 105. The Couit is not lionnd to impound the interest of a criltii que. 
 Iri(.it and will not do s<i if it would be unjust ; Mara v. Browne (18!)5), 1 Ch. 
 60, 94. 
 
TIU'STKKS AND EX KCL'TOKS. 
 
 393 
 
 Insuranoo by Trustees. I'rmr to the act a trustee could unt insure the 
 trust i>i' ip ity out of iiK-ouie without tlie oons'jut of tlie tenant for life ; Lewin 
 on 'I'nists, Sth I'M., oHO. The section lias l)een somewhat chanyed in Kngland 
 In- .")() & ."i7 Viet. <!. .IS, s. 18. 
 
 Relief of Trusteees. S. 'M (a) is from the Judieiid Trustees Act, l.S!){i (59 and 
 (id V. c. o.")! s. ."{. The ])o\ver to relieve the trustee is meant to lie acted on 
 freely and fairly in the exercise of judicial discretion, but the court must ho 
 .satistied on sutliiient evidence that the tiustee acti'd reasonably as well as 
 honestly, and if a trustee has not acted as he jirobably wotdd have acted liad 
 it been a ti'ansairtioii of his own he will not Ic lelieve 1, Ke Turner, Harker v. 
 Iviniey (IS!»7) 1 L'h. ."i.Sfi ; l!e Roberts (ISOT) 70 F.. T. 47!» ! nor if he advances 
 on inort_j;ai.'(! more than should reasonably l)e advanced or without getting a 
 |iro|)er valuation ; 1-!c Stuart, Smith v. Stuart (lHi(7) '.i ( li. ."iS;!. Hut leavinga 
 debt of l(i(il. line U|)on a demand note l)y a man in good credit where the will 
 authorized the trustees to m.iintiin the estate in the iii\e mode of investment 
 as at the testators death was relieved against although the debtor died insolvent 
 IS months after the testators death ; He (Irindley, Clews v. (irindley (1S!)8) 2 
 Ch. .)!).S ; and where trustees erroneously believed they had ))ower to sell leaso- 
 holils tiiey weie relieved from liability for loss of income caused by a sale 
 which in other respects was proper ; Perkins v. Bellamy (ISilS) 2 Ch. i)21. 
 The onus is on the tiustee to prove tiiat he acfted rea.sonal)ly and honestly ; 
 Ke Stuart, Smith v. Stuart (l.S!)7) -2 t.'li. .")83. Where an estate une.\peete(lly 
 turned out to be insolvent payments which !iad been lioncslly made to a beno- 
 ticiarv were allowed as against creditors; lie Kay, Mosley v. Kav (ISi)7) 2 
 Ch. rilH. 
 
 Limitations. Tlic Judicature Act (R.S.O. e. ol) s. .")S (1) enacts " Subject to 
 the ))rovisi<ais of section 'A'2 of the Trustee Act no claim of a <•..</»/ qm- /riiM 
 against his trustee for . my property held on an express trust or in respect of 
 any breach of such trust shall Ik; held to be barred liy any Statute of Limita- 
 tions." S. 32 is substantially the same as s. 8 of the trustee Act 18S8 (.11 it r>2 
 Vict. c. 59). 
 
 1 )ireetors who bv mistake or <'arelessness misapply money under their control 
 belonging to tlic (-'ontpanv can in the absence of fraud lely "u the section ; Re 
 Lands Allotment Co. (1894) 1 Ch. (iKi. 
 
 An ai'tion to compel trustees to re])lace moneys lost tin'ough lireaehea of 
 tT'ust is an action to recover money and will be barred at the expiration of six 
 years from the lireaeh of tiust, or six years from the time that tlie interest of the 
 plaintiH' beneticiai-y becomes an interest in possession ; Ke Bowden (189(1) 4"i Cii, 
 1). 444 ; He Swain" (1891 ) 3 Ch. 2;W ; Ke Page (1893) 1 Ch. .•i04 ; Ke Somerset, 
 Somer-set v. Earl I'oulett (1894) 1 Ch. 231. 
 
 .\\\ acknowledgement will take the case out of the Statute but it must be an 
 a<knowle(lgement of tlie breach of trust and a liability of tlie trustee in conse- 
 c|uenee thereof ; Want v. Campain (1893)9 T. L. K. '2.")4 : Ste|)hens v. Beatty 
 (189.')) 27 O.K. 7.'); and accordingly paying interest received from a mortgagor 
 is not an acknowledgment of a liability for the insuliicieii'-y of the investment; 
 Ke So?nerset, Somerset v. Karl I'oulett (1894) 1 Cii. 231, but payment 1)V a 
 soli(Mtor as tlie agent of the trustees of moneys as interest om alleged invest- 
 ments will be sufficient ; (.'lark v. Bellamy (1899) 19 C. L. T. 174. 
 
 .\ tenant for lifiMs barred at the expirati<m of six years, Stewart v. Snyder 
 ( 1898) 18 C. L.T., 4(17. 31) ( ). H. 1 10. A new trustee cannot recover against the old 
 trustees for a lireaidi of trust more than six years old, he not being a beneticiary 
 within the proviso to suli.-.sec. (b) ; Ke Bowden (1890) 4.") Ch. I). 441. As lie- 
 twecn trustees, time does not begin to run mitil the lialiility is established, so 
 thit an action for I'ontribiition may be brougiit witiiinsix years from tiie judg- 
 ment establishing liability ; Kobin.son v. Harkin (lS9(i)2 Ch. 41."). The Statute 
 of Limitations may be set up except in the three following cases (n) fi'aud by 
 the trustee; (/<) retention of trust property l)y him; (<■) receipt l)y him and 
 conversion (jf it to his own use. 
 
 Where tlie trustee derived no benefit from the breach of trust, and had no 
 knowledge of it, and was not coiiceriKMl in it in any way, he could not be said 
 to be a party or i)rivy to the breach of trust thougii fraudulent, as where the 
 surplus moneys arising from a sale under a power in a mortgage were fraudu- 
 lently kept bv the mortgagee's solicitor on the false representation that he had 
 authority to receive them f(a' the second mortgagee ; Tliorne v. Hcaid (189.")) 
 A.C. 495. 
 
 Where moneys have been paid out by the trustee innocently althougii to a 
 wrong person or for a wrong pur])ose, the section ])rotects "^he trustee from <lo- 
 niaii Is more tlian six yens old ; How v. Karl Winterton (1890) 2 Ch. 020, 
 
894 
 
 TRUSTEES AND EXECUTORS. 
 
 9^ 
 
 % 
 
 I 
 
 I 
 
 i 
 
 Hi 
 
 Money Ifiit Uy tiu.stL'OH to ii mortgagor on iiisutllcient nociiiity iiud tlierffou' 
 in Vjreiifli of trust and i).iicl l>y the iiiortgngor into a liank in which one of thi- 
 trustees was a i»aitner in part discliaige of u del)t of the mortgagor to tliJ Ijank 
 
 8 not inonev converted l>v the j)artner trustee to his own use; Re Ourney, 
 
 Mason V. Mercer (18!)3) 1 Ch. .TOO. 
 
 ■ The section does not authorize an innocent partner in a firm of solicitors to 
 escape liahilitv for misajipropriation of nione\s 1)V anotlier of the firm ; Mooiv 
 V. Ivnight (isill) 1 Ch. .">-17. 
 
 The expression "still retained" means actuallv in iiis han<ls, or under his 
 control at the date of tiie writ ; Tliorne v. Heard "(1, ■!!):}) W Cii. .")3(), (1«!)4) 1 Ch. 
 .509, (ISiW) A.C. Kr). 
 
 Married Woman. Tlie executors of a husband who forcibly- deprived Ids wife 
 of moneys forming part of her separate estate cannot set up the Statute of 
 Lii.iitations ; Wassell v. Leggatt (1S96) 1 Ch. 7i'->\. 
 
 Interest in Possession. A tenant for life entitled to income may be barred 
 l)y tiie Statute of Limitations as to income and m.ay subse(|uently liecome en- 
 titled in tlie events whicli ha])])en to the settled fund by virtue of a resulting 
 trust and sucli right does not become an "interest in possession" until th<' 
 other objects of the trust fail and will not be barred ; Mara v. Browne (l.S!l.">l 
 '2 Ch. 69. Time floes not run against bencHciaries until tiiey are entitled to 
 interests in possession ; Re Somerset, Somerset v. Karle I'oulett (1894) I Ch. 
 '231 ; Stewart v. Snydcr(lS9S) IS C.L.T. 407, 30 0. R. 110. 
 
 Accounts of Trustees. Wiieic trustees are entitled to the protection of s. 32. 
 their ace(nnits will be restricted to six years before action. For form of order, 
 sec Re Davies, Ellis v. Rolierts (1898) 2 Ch. 142. 
 
 Breaches of Covenant by Trustees. Mucli ditliculty has been felt as to the 
 meaning of sub-sec. (a) an<l as to tiie ditl'ercnce lictween it and sub-sec. (b). In 
 re Bowdon(1890) 4,') Ch. 1). 444, Lord .Justice Fry virtually thought that (a) 
 had no meaning, but in How. v. Winterton (189(i) 2 Cli. 620; Lindley and 
 Rigby, L.ibJ. discussed it elaborately. R'gby L..T. thought that it extended 
 to actions founded upon l)renches of duty, arising either fnmi a simple promise 
 to undertake a trust or a covenant to undertake it. In the latter ca.se the 
 Statute of Limitations applicable " if the trustee had not been a trustee " would 
 be that relating to specialties and the period of limitation would be 20 years. 
 
 Settling Debts. S. 33 is from Lord Crainvorth's Act (23 & 24 Vict. c. 14.")) 
 s. 30, wiiich was reiiealed in Kiigland by the Conveyancing Act 1881 (44 & 4.") 
 Vict., c. 41, s. ,37, wliieli section is replaced by ")6 & i)7 Vict., c. i')3, s. 21. 
 The section did not apply to administrators until the amendiiient of 1899, and 
 their powers were limited as licfore the act ; .see Williamson Kxois. 9th Kd. 
 1694 et Ki'q. A sale by an executrix and the testator's partner of partnership 
 property to a limited company partly for ('asli and partly for shares under an 
 arrangement for the handing over of the purchase money to the partnership 
 bankers is a compromise within this section and is valid ; West of Kngland and 
 South Wales District Hank v. Murch (1883) 23 Ch. 1). 1.38. 
 
 In Rcid V. Reid (1866) 16 C.I'. 247, it was held tiiat an executor or adminis- 
 trator may as sucli refer to arbitration oauses of action whicii aro.so in the life- 
 time of the testator or intestate so as to liind the estate and without making 
 himself personally responsible. 
 
 'i he executors iiiav conipromi.se claims of a legatee; Re \Varrcii (1884)32 
 W. R. 91(i. 
 
 An executor may pay a claim baric<l liy the Statute of Limitations; Norton 
 V. Flecker (1737) 1 Atk. .'")2<); l)Ut not after a judicial decision that it is not 
 recoverable; .Midgley v. Midgley ( 1893) 3 Ch. 282. Hut he has no authority 
 to i)ay a liond the consideration of winch is illegal or immoral; Williamson 
 Kxors. 9tli I'M. I(i99, nor notes wlicre tjiert^ was no consideration ; Re Williams 
 (1896) 27 <). I{. -10."), nor the claim of a (^ri'ditor wlio is prevented from enforc- 
 ing his claim liy tlie statute of frauds; Re Rowiison ( 188.5) 29 l^li. 1). 3")8. A 
 claim for dower cannot be comproiiiisedby an administrator setting aside a por- 
 tion of tlie real estate; Irwin v. Toronto Cencral Trusts Co. (1894)24 O.R. 484. 
 
 One of several (ixecutors may compromise a claim although tlie others dis- 
 sent; Smitli V. Kverett (18.")9)27 Heav. 446; l)ut if tlie ellect of the eimipro- 
 niise is to relieve liini from liability which he was under to the estate jointly 
 with the creditor the compromise will l)e set aside ; Stott v. Lord (1862) 31 L. 
 J. Ch. 391. 
 

 TRUSTEES AND EXECUTORS. 
 
 395 
 
 Reasonable time may l)e allowed for payment of n (li>))t ; RiitclitVe v. Wituli 
 (1853) 17 Beav. 217; Re Owens (18H,S) 47 L. T. (il ; .loliiiston v. <)gg(I877l 
 25 (ir. 2()1 ; )iut if the executor allows the debt to l)econie barred he will be 
 liable ; Williiims^Mi Kxors. !)th Ed. 1702. 
 
 Right of Retainer abolished. By s, 34 the executor's right of retainer of his 
 own (lel)t ill case of a deficiency of a.ssets is abolished ; Re Ross (1881) 2!) (Ir. 
 385. 
 
 All Debts to be paid Ratably. Upon the death of a person, his estate if in- 
 solvent becomes viitually a trust fund for the ])ayinent of his creditors and 
 superior diligence will not entitle any creditor to obtain an advantage over the 
 others. 
 
 All ci'editors arc entitled to share, including those resident aliroad, thouyh 
 the deceased was domiciled and had assets there; Milne v. Moore (1894) 24 
 O.R. i5e. 
 
 Creditors who get paid in full are Iwund to refund the amount illegally 
 received; Bank of British North America v. Mallory (187(1) 17 Or. 102; 
 Chamber lin v. Clark (1882) 1 O.R. 135, !) A.R. 273 ; unless the deficiency is 
 <aused bv a subse(|iient wasting or depreciation of the assets ; Re Winslow 
 (1890) 45'Ch. 1). 24!). 
 
 Position of the Executor when Sued. An executor suil'ering judgment against 
 him thcrclij- admitted ])eis<>nal assets sufficient to satisfy the claim. If the 
 estate is insolvent the jiiopcr course for the personal representative is to olitaiii 
 an order for administration. It has been suggested, however, that he may 
 plead the deficiency of assets and the Court will then adjust tlie rights of tlic 
 parties. If this is not done he will be personally liable ; Donor v. Ross (1872) 
 1!) (Ir. 220; Taylor v. Bro<lie (1874) 21 (Jr. (i()7. If sued, however, in tiic 
 County or Division Court where an admin istrntion order could not lie granted 
 it would appear that if there were suHicieat assets to satisfy the claim the in- 
 siifliciency of assets to satisfy all claims would be no defence ; Parsons v. 
 tiooding (1873) 33 U.C.R. 49<).' 
 
 Liens not Affected. Prior to the Creditors' Relief Act (R.fS.O. c. 78) it was 
 field tliat execution creditors who had executions in the sheriff's hands during 
 the deceased's lifetime did not by virtue of the Act then corresponding to s. 
 34 lose their priority; Meyers v. Mover (1872) 18 (Jr. 185. The effect of the 
 Creditors' Relief Act docs not appear from any reported case to have been de- 
 cided. Liens would now have to be valued, R.S.O. c. 132. 
 
 Sot-off Against Legatee. Notwithstanding s. 34 an executor can set of!' a 
 dclit due bv le;,'atee to an estate although the legatee may have died insolvent ; 
 Bain v. Malcolm (1887) 13 O.R. 444. 
 
 Estoppel. A creditor will not be estopped from claiming against an executo 
 by merely not objecting to a legatee being yiaid if he was not aware of the in- 
 sufficiency of llie'assets ; Re Ryerson (1897) 29 N.S.R. 81. 
 
 Covenants in Leases. It was formerly proper for an executor when a con- 
 tingent lialiilit> existed under a lease to the testator to claim to be indemnitied 
 against such liability liy tiie legatee's of the estate liefore making distribution, 
 but under s. 3(i such indemnity will now l)e unnecessary so long as the lial>ili- 
 tics under the lease have licen satisfied u)) to tlic time of tlic term being 
 assigned by the executor and a sum set apart to answer any future clain" in 
 respect of fixed sums agreed bv the deceased to l)e lai<l out on tiie propert\' : 
 Dodson V. Samniell (f8()0) 1 I)r.\t Sni. 575. 
 
 Advertisement for Creditors. The original of section 38 was Lord St. 
 Leonard's Act (22 and 23 ^'iot., c. ','.')) s. 29. The original section related only 
 to executors and administrators. The licnefil of its provisions are now e.v- 
 tended to trustees and assignees for the benefit of creditors. There is no 
 positive rule as to what notices are sufficient. Tiie circumstances of each par- 
 ticular case, such as the place of residence of the deceased and his position in 
 life must lie considered ; Re Bracken (1889) 43 Cli. I). 1. It is not necessar.\ 
 in Ontario to advertise in the Ontario (Jazctte ; Re Cameron, Ma.soii v. Cam- 
 cion (1893) 15 P. R. 272. One month from the date of the advertisement was 
 helil sufiicient time to give tlie creditors although the advertisement was not 
 pulilishcd till a few days later; Re Bracken (18U9) 43 Cli. 1). 1. Tlie^n.)- 
 visions of the section ap])lv to claims of next of kin as well as creditors ; New- 
 ton V. Sherry (1870) I C.P.D. 240. 
 
390 
 
 TRUSTEES AND EXECUTORS. 
 
 P 
 
 *'..■■• 
 
 i 
 I 
 
 Kiiiliiiv to sfud ill ii (jliiiiii will not (U'privL' ii ci'cditdi' of iiis rights if tin- |)cr- 
 soiiiil icprest'iitative or trustci' has knowledge of tli(.' elaiiii ; Calling Brewing 
 and Malting Co. v. Black (1884) (i 0.1!. 441 ; MaikwuUs ease (1S7:}) 21 W. R. 
 
 i:r.. 
 
 The iiotiee nmst distinetly state that the estate will l)e distrilmted amongst 
 the Jiaities entitled thereto, having regard only to the elaiiiis of whieh the 
 l);iity giving it has noti('e, and that he will not he liahic for the same or any 
 put tie'ieof so distrihuteil to an\' per.son of whose <!laiiu he had not notiee ; 
 Stewart V. Snyder (I8i)8) ISC.L.T. 407; .'WO. K. 110. 
 
 An executor who has distrilinte<l the assets aftei' giving the notice will have 
 the same protection as if hi' had adniinistered the estate under a jiidgnient of 
 the C'onrt, and if he should have set ajiait and retaineil legacies as trustee no 
 judgment can he given against him '/c; executor; Clegg v. Kowlaiid (IHliO) 
 L.R. '.\ Ki|. 3(iH ; and in an action against legatees hy an unpaid creditor to 
 e(»nipel a refund, the executor as such would not !"■ a proper paitv at all ; 
 Hunter v. Ycaiiig (IHTJI) 4 Kx. I). -J,")!). 
 
 Where new claims come in after advertisement and distrilmtion o£ part of 
 the estate, the personal representative or trustee has no /o»//.< ■iliinili to recover 
 hack any portion as on an overpavment ; Leit<-h v. Mol.suns Bank (18t)t)) 27 
 O.R. (i21. 
 
 An advertisement to send in claims does not amount to a pronii.se to jiny 
 statute harred dehts ; Scott v. Jones (IS.SO) 4 CI. k V. ;1H2 ; nor sto|) the run- 
 ning cf the Statute of Limitations ; Re Stephens (IS8!t) 4;{ Ch. 1). .Sil. 
 
 Application to Court for Advice. The section from which s. 3!) was taken 
 has heen repealed in England, the ohject thereof now lieiiig ohtained Uy or- 
 iginating summons ; .">() & .')7 Vict. c. 53, s. .">1. The ohject of the section is 
 to assist trustees in the execution of their trust as to little matters of discre- 
 tion ; a petition thereunder should relate only to the management and invest- 
 ment of trust projierty. Therefore the Court will not upon such a |)etition 
 construe an instrument or make any order atrecting the rights of parties to 
 projierty. Neither wilt the court give an opinion on matters cif detail which 
 cannot properly he dealt with without the HUi)erinten(lence of the Court and 
 the assistance of aflidavits ; Walker it KIgood on Kxeeutors, 2n(l Kd. l\Si), 
 ((uotcd with appro\al. Re Williams (18!!.")) 22 A. R., Ii»(i,200 ; see also Re Cahl- 
 well (18(i8) 2 Ch. Chainh. I.")(l ; Re Spiller (IStiO) 2 L. T. N. S., 71 ; Re Bar- 
 ringtun (1S50) 1 J. &. H. 142 ; Re Simson (1858) 1 J. & H. 8!). 
 
 Advice may he given as to an investment ; Re Lorenz (I8()0) 1 Dr & Sm. 
 401; as to concuiriny in a sale ; Kail I'oulett v. Hood (I8()8) L. R. 5 Eij. 
 110; and as to converting saw logs into lumher ; Re Caldwell (18()8) 2 Ch. 
 Chamh. I'lO ; as to ijaymenl of calls on shares ; Re Box (1804) ". H. k .M. ."i.VJ; 
 as to granting a lease ; Re Lees' Trust (I87">) W. N. 01 ; as to exercising a 
 power of sale ; Re Stone's Settlement (1874) W. N. 4 ; as to making an ad- 
 vancement ; Re Kershaw's Trusts (180!)) L. R. (i Kc)., 322 ; Re Breed's Will 
 (187.")) 1 Ch. I). 220. Where (|uest ions of construction arise a suit nmst he 
 instituted ; Re Evans (1801) 30 Beav. 2.32 ; lie Lorcn/, (18(i2) 1 Dr. & Sm. 401; 
 Ro Hooper (1801) 2!) Beav. (>")() ; hut a will may now he coiistrued on an 
 originating notice Re Sherlock (187S) IS P. R. 01 ; Re Whitty (189!)) 1!) C. 
 L, r. 85; Holnistead & Langton I0!t7, 1098. Advice will not he given on a 
 hypothetical ease Re Box (18(i4) 1 H. & M. 552. The advice of the Court need 
 not he ohtained as to defending a suit hrought against the trustee ; Re Williams 
 (1895) 22 A.R. 190 ; and the trustee might on the jietition he allowed to apply 
 part of tli(! estate in ilcfraying the costs ; Kx Parte Karl (1881) 10 Ch. \). 587. 
 The application should now he hy originating notice; C. R. 9.38 (g), .see Holm- 
 sted it Laugton, p. 1097. The Master in Cliamhers has no jurisaiction, C. R. 
 42 (0). One trustee may apply without the concurrence of the other ; Re 
 Muggeridge (1859) Johns. 025. Where an executrix applied for a direction as 
 to (listiihution of money or as to ad\ertising for next of kin, the petition was 
 refused in the ah.sence of any of the heirs or next of kin ; Re Harley's Estate 
 (1897) 17 1'. R. 483, hut except where there is a deficiency of a.ssets all parties 
 interested nee<l not he .served ; Ro Mockett (1S59) Johns. 028 ; Infants need 
 not he served ; Re Tuck's Trusts (1805) W. N. 15, and the jurisdiction may 
 he exercised although the petition is not served on anv one; Re French's 
 Trusts (1872) L. R. 15 Va\. 08 ; Ro Larken's Trust (18^2) W. N. 85. The 
 (juestion of service will he dealt with on hearing the petition ; Ro Cook's 
 Trust (1873) W. N. 49. Where the consent of a married woman was re(iuired 
 to investments hy trustees and she was a Innatie not so found hy inquisition, 
 
TRUSTEES AND EXECUTORS. 
 
 the Court, exeicisiiig tlif jurisdiotion of ». 3!) (iisiiensed witli the coiiHcnt, and 
 directed tlie iiiboiiie to l)0 |)aid to the liusbaiid on liis undei'tiiki:ig to apply it 
 to the nmintenance of the wife ; Re T (18S(l) I') Cli. I). 7S. 
 
 Litigation. Thu (Jourt on a IVtition iindur k. ,'{!I jiciinitted trimteeM to a])|)l\ 
 curtain funds not exceeding t!.S,(X)0 in imynient of costn of litigation for tlie 
 protection of the estate ; Re Lord River's Kstate (1881) I.l Ch. U. .'588, n. 
 
 Costs. Wliere tiic a])|)liciiti(>ri concerns income oidy tlie co.sts of tiie peti- 
 tion may be ordcicd to he i)aiil out of tiie income, Anon (18(50) 8 W. R. ;J33 ; 
 hut as a rule they will he jiaitl out of the corpus Re McVeagii, Seton on 
 Decrees, 4tli Kd. p. 4itl. 
 
 The costs of atlidavit.s will l)o disallowed Re Muggeridge (18."!() Joitns. 
 625 ; Ro Mockett (1859) .Johns, (i-28. 
 
 Compensation. Trustees ajjpoinlcd hy statute ai'c entitled to compensation ; 
 Re ('(immissioncrs of Cohourg Town Trust (1875) U2 (if. .377 ; Re Toronto 
 Harhor Commi.ssioners (1881) '28 (ir. I!)5, and so is a Trustci' ai)j)ointcd hy 
 By-law to receive munici|)al dcl)entures and iiaiid tlicm over to a Railway 
 Comi)anv on completion of tlie railway ; Re Kiniatingcr (l8iKi) i-'M (). R. KIO"; 
 Re Tilsonhurgh, Lake ICric and Pacifu" Ky. Co. (I8!t7) 24 A. R. .'{TS. 
 
 The com])cnsation is a lien upon tlie estate ; Life Association of Scotland v. 
 Walker (187(1) 24 (ir. 25)3; Re Tilsonhurgh, Lake lOrie and Pacific Ry Co. 
 (1897) '24 A. R. 378 ; Harrison v. Patterson (1865) 11 (ir. 105. 
 
 An executor wlu) disdiarges his duty honestly is entitled to compcns.iiion 
 althougii his accounts, owing to want of husiness ability arc loosely and inac- 
 curately kc])t ; Hoover V Wilson (1897) 24 A. K. 424, and .so is an cMi-utor 
 villi retains money in his hands unem])loycd ; (iould v. iSuriitt (18(i5l II (ir. 
 523 ; and although a halance is found against him on a surcharge : Sievc- 
 wright v. Leys (1882; 1 (). R. 375, and altlmugh he may have iuMstcd in 
 unauthorized sccuiitics hut without loss; I'cacock v. Colling ( 1885) 54 L. .T. 
 Ch. 743. 
 
 Where an administration suit is pending it is improijer for a Surrogate 
 Judge to iix tlie compensation, and his allowance will he disregarded ; Biggur 
 V. Dickson (1868) 15 (Jr. 233 ; Cameron v. Bcthune (I8(i8) 15 (ir. 486. 
 
 Where a legacy is given to executors " in lieu of all charges for their ser- 
 vices in performing tlic duties iiiij)oscd on them as executors of this my will " 
 the}' cannot if they accept jiroliate claim a larger sum ; Williams v. Roy (1885) 
 9 (). R. 534, in which a prior decision of Deiii.soii v. Denisoii (1870) 17 (Jr. 306, 
 where an iiisulHcient legacy was given as compen.sation, and the Coiiit allowed 
 a further sum, was (h)uhted. 
 
 A legacy given as com|)ciisation docs not on a ilcficiency of assets ahatc with 
 other legacies; Andcr.soii v. Dougall (1888) 15 (ir. 405. A heiiuest of the 
 share of the residue is not to he inferred as given in compensation •, Boys' 
 Home V. Lewis (1883) 4 0. R. 18. 
 
 The Statute has fixed no standard In- which the rate of coni))enaation is to 
 he Tueasured, and this imports that each case is to he dealt witii on its merits 
 according to the .sound discretion of the .Judge. The adoption of any hard 
 and fast couimission (such as five per cent.) wcudd defeat the intention of the 
 statute; Re Fleming (1886) 11 P. R. 42(). Where the .Judge fixing the coni- 
 nii.ssion has erred on the side of liherulity, his allowance will not he interfered 
 with if he has not proceeded on a wrong principle ; McDonald v. Davidson 
 (1881)6 A. R. 320. 
 
 The following ca.ses may he consulted as illustrations of the amoiuit of 
 conipen.sation allowed : — 
 
 McLennan v. Heward(18(i2)9(ir. 178. 
 received and paid over ami two and a I 
 and not j)aid over. 
 
 Torrance v. Chewett, (18(i()) 12 (!r. 407. 
 stocks and all moneys jiaid in and coUcclci 
 
 Thomp.son v. l*'rceman, (1868) 15 (ir. 384. Remuneration hy commission on 
 the transfer of land to a hencliciary valued at .^(KJ.OOO and on moneys receivc<t 
 and dishursi^l in a hu.siness carried on hy an agent, is not the proper metho-.i. 
 A lump sum should he aUowed. 
 
 897 
 
 Five per cent, alhjwed on all moneys 
 "lalf per cent, on moneys received 
 
 Four per cent, on all transfer.-i of 
 
398 
 
 TRUSTEES AND EXECUTORS. 
 
 ^. 
 
 r S.I 
 
 Dpiiiwni V. iViiisoii, (1H7(I) 17 ('>y. ■'tO(i. Wlici't- tlie estate was large, i'e(|uir- 
 iiig gi'i'iit eare and jiulgiiient tor yearn. 81, •">••() was allowed Id (iiie executor, 
 and Sl,,")(M) to two otliers jointly, 
 
 WagHtair V, r^owerre, (lS.")(i):iH Harli ■J24. The (■()iii|)eii.satioii in given forllio 
 eare and management of the estate and not for the sim|ile aet of rei^'iving an<l 
 paying over, and where the estate consisted of unproductive real estate, a lump 
 sum was allowed. 
 
 He 15erkeley"s Trust, (1S7!)) 8 P. R. 1113. One eonnuission is .lUowaliK' on 
 the determination of the trust for the reeeipt and ])ropei'appliiatioii of moneys 
 payable out of the cor])ns, hut non(! on investnu'iil and re-investment of tilt! 
 trust funds. On receipts of income a connnission slioidd he allowed out of 
 income, fixed in this ease at four ])er cent. A yearly allowance should ho 
 made 'or looking after taxes and insurance, etc. of I'eal estate, without preju- 
 dice I m ultimate commission upon the estate received iind handed over. 
 
 fStinson v. Stinson(l>S.Sl) S I'.R. odO. A lump sum allowed for care of land 
 not realized upon in addition to (•ommission and income. 
 
 Re Batt ; Wriglit v. White (1883) 9 I'.R. -147. Connnission of .^4UU was al- 
 lowed on receipts of 4i9,400, although $3,'200 was in securities which were 
 merely iuuided over. 
 
 Re Honsherger, (188.5) 10 O.R., ")21. Notwithstanding the granting of an 
 administration order, an allowance should he made for monejs received pend- 
 ing administration, l)Ut the allowance should he considerahly reduced on 
 account of the diminishing of the responsihility ; and in Thompson v. Fairl)airn, 
 (1886) II I'.R. \i'A',i, where all the work was done iluring an ailministration suit, 
 five i)er cent, was allowed on dishursmeuts of .sl^flO, one per cent, on .'?'2,4(M) 
 collected l)y the jjlaintiti's solicitors, and on ."ilOjddlt, money due hy the Kxecu- 
 trix to the estate ; two and a half per cent, on collections of .Sl'2,0(Mt and noth- 
 ing on S4,7d(l a])pearing on each sitle of the accomit, heing un a transfer of 
 mortgage hy an arrangement between the Solicitors, sanctioned by tlio Court. 
 
 Re Fleming, (1886) 11 Pr. 272, 426. Five per cent, was allowed on iii!:i2,(»00. 
 moneys received, au<l one p' cent, on .'?79,000 se(,'urities received an<l handed 
 over to a eo-executor as beneficiary. 
 
 Archer V. .Severn, (18S7) l.S O.R. 316. F'ivo per cent. allowe<l on .'?4r),OltO 
 received, there being .SHO items on one side and 400 on the other side of the 
 account, and a great deal of labor and trouble. 
 
 Re Prittie, (1S80) 13 P.R. lit. Wi\ere the rents were collected by an agent, 
 who was paid a coiuinission, two aiul a half per cent, was nevertheless allowed 
 to the Kxecutijrs and $,')() was allowed them on an exchange of lands, said to be 
 valueless, for stock in a Land Compaii}', instead of commission on the par 
 value of the stock. 
 
 Re Central Bank, Litpiidator's case, (1892) 22 O.R. 247. Two and a half per 
 cent, was allowed to a Li(|uidator on moneys collected and (me and a quarter 
 per cent, on amounts adjusted or set oU'. See also .Judgment of Master in 
 Ordinary, 26 C.L..T. 24. 
 
 Re Cursitir, (1894) 9 M.L.R. 4.S3. Four per cent, was allowed on the 
 anumnt received and disbursed, and two per cent, on tiic amo\nit received and 
 still I'eniaining on hand, subject to a further allowance to be made when the 
 estate shoidd l)e wound up. 
 
 Re Ermatinger (1896) 28 0. R. 106 ; (1897) 24 A.R. 378. $400 was allowed 
 for receiving municipal debentures and handing them over on completion of the 
 railway. 
 
 No allowance was made for an agent who collected money's gratuitously. 
 Chisholm V. Barnard (1864) 10<Jr. 479, nor for moneys charged against executors ' 
 on the basis of wilful ilefault, Bahl v, Thompson (1870) 17 Or. I.")4 ; nor for a 
 shni-e in residue payable to executors. Boys" Homo v. Lewis, (1883) 4 O.R. 18. 
 The allowance should be spread over the whole term of service. Re Central 
 Bank, (1892)22 0. R. 247; out executors are entitled to be credited with a 
 proportionate anunuit of the allowance at the end of each year, Hoover v. Wil- 
 son (1897) '-'4 A.R. 424. 
 
CHAPTER 130 
 
 Ah amended by 6'..' V. r. 11, s. S3. 
 An Act reapecting Investments by Trustees. 
 
 HER MAJESTY, by and with the iidvicc and consent of 
 the Le<ifishitive Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 1. This Act may be cited as "The Trii»tee Investment Act " Short title. 
 
 3. — (1) Trustees or executors having trust money in their Trustees or 
 hands, which it is their duty, or which it is in their discretion, fxeoutors may 
 to invest at interest, shall bo at liberty at their discretion, to in- moneyB in* 
 vest the same inany stock.debentures or securitiesof theGoverii- certain secu- 
 nient of the Dominion of Canada, or of this Province; or in secu- " '**" 
 ritics wliich are a first charge on land held in fee simple, provided 
 that such investments are in other respects reasonable and pro- imp. Act 23-24 
 per, and such trustees or executors shall also be at liberty, at ^•^- ^^^' 
 their discretion, to call in any trust funds invested in any other 
 securities than as aforesaid, and to invest the same in any such 
 stock, debentures or securities aforesaid, and also, from time to 
 time, at their discretion, to vary any s\ich investments as afore- 
 said, for others of the same nature; and any such moneys already 
 invested in any such stock, debentures or securities as aforesaid, 
 shall be held and taken to have been lawfully and properly in- 
 vested. 
 
 (2) This section shall apply and extend to boch present and This section to 
 future trustees and executors. R.S.O. 1887, c. 1 10, s. 29 (1 and ^^^lJ° *1J, 
 3). 
 
 3. — (1) For the purposes of the following sections of this Act i„terpre- ■ 
 tne expression " trustee" shall be deemed to include an execu- tation. 
 tor or administrator and a trustee wliose trust arises by con- "Trustee." 
 stiuction or implication of law as well as an express trustee. 
 
 (2) The provisions of this Act relating to a trustee shall 
 apply as well to several joint trustees as to a sole trustee. 
 
 (3) The expre.ssion " stock " shall include fully paid up 
 shares. 
 
 (4) The expression " instrument " shall include an Act of 
 the Legislature of Ontario. 54 V, c. 19, s. 2. 
 
 4. The powers hereby conferred are in addition to the Additional 
 powers conferred by the instrument, if any, creating the trust; P'Jwe" given. 
 Provided that nothing herein contained shall authorize any Proviso. 
 
 [3!)S)J 
 
400 
 
 •■ '* 
 
 V, 
 
 I 
 
 Investment of 
 trust funds. 
 
 Chap. 130. IXVESTMEXTS BY TRUSTEES. SeC. +. 
 
 trustee to do anything which lie is in express terms forliiiMen 
 to do, or to omit to do anything which he is in express tL'rms 
 directed to do, by the instrument creating the trust. R. S. O. 
 1SH7, c. 110. s. 2t> (2) ; ')4 V. c. 19, h. 3. 
 
 5. — (1) It shall be lawful for a trustee, unless expressly for- 
 bidden by the instrument (if any) creating the trust, to invest 
 any trust funds in his hands in terminable debentures or de- 
 benture stock of the hereinafter mentioned societies and com- 
 panies, provided that such investuioiit is in other respects 
 reasonable and pi'oper, and that the debentures are registered, 
 and are transferable only on the books of the society- or com- 
 pany in his name as the trustee for the particular trust estate 
 for which they are held in such debentures or debenture stock 
 as aforesaid : — 
 
 (a) Of any incorporated society or company which has 
 been, or shall hereafter be authorized by any lawful 
 , authority to lend money ui)on mortgages on real 
 
 estate, or for that purpose and other purposes, such 
 society or company having a cajntalized, fixed, paid 
 up and permanent stock not liable to Ije with- 
 drawn therefrom amounting to at least S.500,(>00, 
 and having a reserve fund amounting to not less 
 than 2.5 per cent, of its paid up capital, and its 
 stock having a mai'ket value of not less than 25 
 per cent, premium ; 
 
 (6) Or of any society or company heretofore incorporated 
 under chapter 1G4 of the Revised Statutes of 
 Ontario, 1877, or any Act incorporated therewith, 
 or under chapter 169 of the Revised Statutes of 
 Ontario, 1887, having a capitalized, fixed, paid up, 
 and permanent stock not liable to be withdiawn 
 therefrom amounting to at least $100,000, and 
 having a reserve fund amounting to not less than 
 1.5 per cent, of its paid up capital, and its stock 
 having a market value of not less than 7 per cent, 
 premium ; provided that nothing in this clause (?>) 
 shall in any way affect any investment made under 
 statutory authority before the passing of this Act. 
 62 Y. c. 11, s. 3N. 
 
 (2) The trustees may from time to time vary any such in- 
 vestment. 54 V. c. 19, s. 4 {a-c). 
 
 Companies 0. No investments shall be made under authority of this 
 
 m which ^qI^ Jq j^i^g debentures of any society or company of the class 
 
 tUtlQS 111V68C6(1 *^ 1 *f 
 
 t) be approved first hereinbefoie mentioned which has not obtained an order 
 by Lieutenant- pf the Lieutenant-Governor in Council approving of invest- 
 ments in the debenttires thereof ; and such approval is not to be 
 granted to any society or company which does not appear to 
 have kept strictlj* within its legal powers in relation to bor- 
 rowing and investment. u4 V. c. 19, s. 5. 
 
Sec. 9 (2). 
 
 INVESTMENTS BY TRUSTEES. 
 
 Chap. 130. 
 
 401 
 
 1. The Lieiitoriarit-dovernor in Council if ho deems it ox- R'^vocBtimi <>f 
 pediont may at any time revoke any Order in Council pre- cJi',',^,cii'a,,. 
 viously made approving' of iiivustments in the deheiitures or provini? of 
 debenture stock of any society or company. Such revocation "iveNtinentH. 
 shall not ati'ect the propriety of investments made before such 
 revocation. 54 V. c. 19, s. (3, 
 
 H. — (1) No trustee lending money upon the security of When tmntee 
 any property shall be chargeable with breach of trust by foM'en'diirKon 
 reason only of the proportion l)orne by the amount of the loan insuthcient 
 to the value of the property at the time w^hen the loan was 'i''<="'''^y- 
 made, provided that it appears to the court that in making the v?c! 69, s. 4. 
 loan the trustee was acting upon a report as to the value of 
 the property made by a person whom the trustee reasonably 
 believed to be an able practical surveyor or valuer, instructed 
 and employed independently of any owner of the property, 
 whether such surveyor or valuer carried on business in the 
 locality where the property is situate or elsewhere, and that 
 the amount of the loan does not exceed one half of the 
 value of the property as stated in the report, and that 
 the loan was made under the advice of the surveyor or valuer 
 expressed in the report. This section shall apply to a loan 
 upon any property on which the trustee can lawfully lend. 
 
 (2) This section shall apply to transfers of existing securi- 
 ties as well as to new securities, and to investments made as 
 well before as on and after the 4tii <lay of May, 1891, unless 
 some action or other proceeding was pending with reference 
 thereto at the said date. 54 V. c. 19. s. 9 
 
 !>. — (1) Where a trustee has improperly advanced trust TmsteLlend- 
 money on a mortgage security which would at the time of the ,'",u"'f^jfed^''" 
 investment have been a proper investment in all respects for ainount. 
 a less sum than was actually advanced thereon, the security Imi). Act 51-52 
 shall be deemed an authorized investment for such less sum, ^' ^' ^■*'''" ^' 
 and the trustees shall only be liable to make good the sum 
 advanced in excess thereof with interest. 
 
 (2) This section shall apply to investments made as well 
 before as on and after the 4th day of May, 1891, unless some 
 action or other proceeding was pending with reference thereto 
 at the .said date. 54 V. c. 19, a. 10. 
 
 Al 
 
402 
 
 INVESTMENTS BY TRUSTEES. 
 
 
 i 
 
 *'■'■* 
 
 r' 
 
 ■5 
 
 NOTES. 
 
 Unauthorized Inv. stments. A settlor or testator maj- autliorize the invest 
 nieiit of trust funds in such manner as he may see fit; Forljes v, Ross (1788) 2 
 B.C.C. 430, 2 Cox 113 ; Pa.ldon v. Richardson (1856) 7 De CJ. M. & O. 563. A 
 power to piace the monej- out at interest at the trustee's discretion or on such 
 good security as lie may tiiink safe H-ill not justifj' an inA-estniont on personal 
 security ; Lewni on Trusts, 8th Ed. 316, or in securities in whicli it is not 
 usual for prudent men to invest ; Knox v, MacKinnon (1888) 13 App. Cao. 753; 
 Stretton v. Ashmall (1855) 3 Drew 9; ConMterdino v. Consterdnie (1850) 13 
 Rcav. 330 ; and wliere there is power to invest on pei'sonal security it must 
 be exercised with great caution; Pickard v. Anderson (1872) L. R. 13 
 E(i. 608. Whore a settlement contained a power of re\-ocati(jn by the settlor 
 with the consent of the trustee and the trustee invested in securities not 
 authorized by the settlement under instructions l)y lettei from the settlor, the 
 investments were justifiable as what was done amounted to a defective execu- 
 tion of the power ; Re MacKenzio Trusts (1897) 28 O.R. 312. A power to invest 
 in such securities as trustees "shall think fit" nii-ans "shall honestly think fit," 
 and a trustee wl'j recei/esa bribe or commission on an investment will be held 
 accountable for loss; Re Smith, Smith v. Thou'.pson (1896) 1 Ch. 71. An even 
 hand nnist be held as l)etween the tenant for life and remainderman ; Rabv v. 
 Ridelialgli (18.J5) 7 Dc. (4. M. & G. 104 ; Re Dick (1891) 1 Ch. 423 ; Hunie v. 
 Lopes (\^fl) A. C. 112 ; Mara v. Browne (1895) 2 Ch. 83 ; Re Hotchkin (1887) 
 .35 Ch. D. U. 
 
 In addition to the securities authorized by the settlement or will, trustees 
 maj' unless forbidden hereby t(> do so may invest in ; 
 
 1. (tovernmeiit securiMes, 
 
 2. First mortgages of real estate. 
 
 3. Debentures or delienture stock of loan companies and building societies 
 approved by the Lieu: .nant-Oovcrnor in Council. 
 
 Lending on Insuiflcieut Security. The proportion which trustees are authori- 
 zed to lend on first mortgages of real estate has not been settled by any decision 
 in Ontario. It has always been assumed that the rules laid down ni tlie English 
 cnx's applied. Trustees in England are authorized in many cases to lend two- 
 thii ;ls of the value of tlie pro])erty and section 4 of Imperial Art 51 and 52 Vict, 
 c. 59 (The Trustee Act, 1888^ from which s. 8 was originally taken absol.ed 
 trustees from liability under the circumstances provided for therein when the 
 amount loaned did not exceed two-thirds of the \alue stated 'i the valuer's 
 report. A sulistantially similar provision is now contained in the Trustee Act 
 1893 (56 & 57 Viet. c. .53, s. 8). Section 8 of the Ontario Act 'rotects the 
 trustee only to tlie extent of one-half of the reported value aid in this respect 
 dirt'ers from the English enactment. Vv'liether it is to lie assumed therefrom 
 that the Icfjislature has indicated that a trustee is not justified in lending more 
 than one-half the value of property oil'ercd as security isacpiestion not covered 
 by authority. 
 
 It has lieen laid down in England that ir the case of ordinary agricultural 
 land tlie margin cuglit not to lie less ih.in one-third of its value, wiiereas in 
 cases where the suliject of the security derivs's its value from l)uildings erected 
 upon the land i.c its use for trade purposes, the uiiugin might not to Ite less 
 thin one-half. These have not been laid down as liard and fast limits up to 
 which trustees will be invariably safe, and l)eyoiid which tliev can never safely 
 lend, but as indicating tlie lowest margins which in ordinary circumstances a 
 careful iinestor of trust funds (aiglit to accept ; He (Jodfrey (1883) 23 Cli. D. 
 483; Smethurst v. Hastings (1}<S5) .30 Cli. 1). 4!i0. Where the property is exclu- 
 sively or mainly used for the pui|)oses of trade, no pi'udont investor can be in 
 a position to judge of the amount of maii^in necessary to make a loan for a teriu 
 of years reasonalily secure, until he has Kcertained not only it.', present market 
 price, but its intrinsic value apart from i hose ti.iding considerations which give 
 it a speculative and, it mav be. a tem))oiarv \ahie, jicr Lord Watson, Learoyd 
 V. Whitoly (1887) 12 .Vjip.'Cas. 727, 733. 
 
 
INVESTMENTS UY TRUSTKES. 
 
 403 
 
 Trustees should, therefore, not lend as much as one-hnlf on buildings used 
 in trado ; Stickney v. Sewell (1835) 1 M. & Cr. S, or for nianufacturnij;, Hoyds 
 V, Hoyds (1851 ) 14 Heav. 54 ; and not more than one-half on cottages ; Re Olive. 
 Olive' V. Westernian (188(i):U Ch. 1). 70; and where the trustfes lent fS.dWon 
 the security of a brickfield valued at i;7,2(X) as a going conoorn, Init the land 
 being worth only i!2,000, they were (l)efore the Act) charged with the full 
 (iniountofthclonn; Learoyd v. Whitely( 1880) 3-2 Ch. 0.347 ; 33{'h. 1). UWi; Vl 
 A])p Uas. 727. Wh( :o trustees advanced t'5,(V)0 on a house and grounds at 
 Liverpool valued by a L.)ndon sin-vcyor at £7,fK)0 to £8,(KM1j and the sur\ cyor 
 had been employed liy the trustee's solicitors and was in fact the agent of the 
 borrower and made an inflated report, they were held to he liable to replace 
 the £5,000; Fry v. Tapson (1884) 28 Ch. 1). 268. 
 
 Trustees may lend on unfinished buildings if duo security is taken for their 
 completion, but the buildings should be of the character which exj>cricnce 
 shows will be constantly let in the neighborhood and not liuihlings of an 
 experimental character ; Rae v. Meek (18S9), 14 App. Cas. 558, but the fact 
 that liouses are unfinished oi' unlet is a strong circumstance in considering 
 whetlier an investment is imj)r(ividcnt ; Re Salmon, Priest v. Uppleby (1889) 
 42Ch. D. .351, 370. 
 
 Where the investment was upon the so' 'rity of a house and grounds valued 
 (but not by a valuer emjiloyed ii'dciiendently of the mortgagor) at f42,750, 
 the trustees were held to be justified in lending onlv f2(),000 ; Re Somerset, 
 Somerset v. Earl Poulett (1894) 1 Ch. 231. 
 
 But where trustees slightlj' exceeded the rule, l)ut acted honestly and as 
 prudent men would have done in dealing with their own funds, they wore ))ro- 
 tectcil by the C(wrt and were allowed their costs ; .Tones v. Lewis (1850) 3 
 De(i. i1:Sm.471 ; reversed it is said on a)>))eal, see .34, Cii. I). 73 ; ReOodfre^', 
 Godfrey v. Faulkner (1883) 23 Ch. I). 483 ; Re Pearson (1885) 51 L. T. N. S. 
 692. 
 
 The degree of care which a trufitee must exercise is to be tested by a 
 reference to an average standard, and not by the degree of care and prudence 
 which the trustee uses in the management of his own ))iivate allairs ; Knox v. 
 McKiimon (1888) 13 App. Cas. 753 ; Rao v. Meek (1889) 14 App Cas. 558. 
 
 Competency Of Valuer. The trustee must " reasonably believe "the valuer 
 to be c(,:upetcnt. It has been argued that the words " reasonably l)elieved " 
 ill secti<in S j'overn not oidy the competency, but alsotb.e w,>rds following iliat 
 " the valuer is instructed and employed independently ot any owner of the 
 property," but it b. • eor. held that if the valuer is in fact not instructed or 
 employed indejjcnl ir 'y of the owner of the ))roperty, the fact that the 
 trustees believed hih. ti have been emplovcd independently will not relieve 
 tlieni ; Re Walker (1890)59 U J. t^h. 38(i ; Re Snmerse('. Somerset v. Karl 
 Poulett (1894) 1 Ch. 231, 253, see also Re Sluart, Smith v. Stuart (1897) 
 2 Ch. .583. 
 
 Local Valuator not now neceesary. Socviou 8 dispenses with the necessity of 
 enij)loyinga valuer rallying on business in the locality where tlie pro))erty is 
 situate. But the fact tliat a valuer has no loial knowledge is a circumstance 
 to be considered on the (|uestioii of the trustees " reasonable " belief in the 
 valuer's coiii|)ctoncv. A reasonable belief would be a belief formed liy the 
 niinrl of a reasonable man — a belief founded on reason : lTnite<l States F.xpre.ss 
 Company v. Donohue (1887) 14 O. R. ;!33, 3.')6 : Peek v. Deny (1887) 37 
 Ch. 1). 541. Wher(! there is nothing s|)ccial in tlie nature of the projicrty so 
 as to render the assistance of an i^x|H'rt really necessary for the gridancc of a 
 prudent man. trustees will not lie guilty of a dereliction of duty in not seeking 
 p,cvi('o from such a ])erson ; Re Chaimian, Cocks v. Chn]>r.ian (1890) 2 ('\\, 
 753, 772. 
 
 Investment to Stand Good for Proper Amount. An investment which is not 
 of ;he class in whici'. a trustee is by law oi' by tlie settlement em])owcred to 
 invest is an " unauthorized investment " and a breach of trust and the trustee 
 is bomid to rei)lace thi> amount ; Re Salmon, Priest v. U|)i)lcby (1889) i:] ( 'h. 
 1). .351, .'167. The nstiii que /riisf may ratify it, in which case it will liccomc 
 part of the trust estati and the truftee will be exonerated or he may reject 
 it in which case he may assert a lien u))oii it foi' the trust money 
 invested therein, and aftci' realization, compel the trustee to make good the 
 ileficiency : Thornton \. Stokill (1855) 1 .lui'. X. S. 751, 
 
404 
 
 INVESTMENTS BY TttUSTEKS. 
 
 
 r: 
 
 % 
 
 wm 
 
 All iiivcstiiuMit iuiiiidiiig ti) tlif tfiins of tliu tnist l)iit on iiisutliciuiil st'uurily 
 is mit of till' tiust fsliite. Ill Kit v. Tajj-soii {1SS4) -JH t'li. I). "iTS, Kay J. 
 oiik'icd tlio tnistocs to ri'|)liu'(' tlit- aiiioimt loaiioil with iiiturcst and dciieed 
 tiiat ii|(oii |)M\iiU'iil they sliould lie ontitlod to tliL' inoitgago. In \\f Sitliiion, 
 IVii'.sl V. riipicliy (ISSli) 42 (Ml. I). :r>l, Kolvcwich J. lu-ld that a trustee could 
 not he iiiiidc lialih' for loss uiik'ss an o|)j)oituiiity wx'ic givt-n him to taki' ovur 
 tho insiitlicioiit scciiiity, hut the (.'ourt of A])))ual rcversud this and lii'ld that 
 as the iiivestiiient was in tin.' authori/ed class, the realization thereof liy new 
 trustees without iiotiee to the negligent trustee (who had retired) did not 
 exonerate him. tJottoii J^. J., said "'I'he ease is entirely distinet from that of 
 an iiivestiiieiit outside the terms of the trust wliieh the ci^liii (pii Iriifl must 
 aeeept or rejeet. Here the trustee is only lialile for the loss and that liahility 
 is to lie enforeed when the investment is reali/.eil," p. ;i()S ; Fry L. .F. said 
 " The mode of eiiforeing this liahility depends (iii the cireiiinstanees of the 
 |):uti(ular ease. In some eases justiee will he liest doiK! hy realizing the 
 security a. id making him ])ay the delicieiiey' ; hut in some ca.ses it may he right 
 to make him jiay at once tli(,' whole sum im])idperly invested, and let liiin take 
 the henetit of the security." 
 
 Where the i-rxlul i/in' Irii"/ is an infant, the trustee will lie ordered to make 
 good the loss altiiough the security cannot ho transfeiTcd to hiui : Heatl v. 
 (iouhl(l8!)8)2('h. -IM. 
 
 S. !) provides a new rule. The Court is to ascertain regardless of i)resent 
 circumstances the amount which the trustees would have been justified in 
 advancing and tile trustee is responsihle only for tlie excess to the extent of 
 the deliciencv wiiich arises on realization. Me Somerset, Somerset v. Earl 
 Poulett (18i»'4) 1 CI'. ^M, 2.')8. .\ sale will not lie ordered unless the n^.ttiiis 
 <pii: h-iiM are beforj the Court : Butler v. Butler (1877) "» Cli. I). .Vji, 7 (.'h. I). 
 1H>. 
 
 Retention of Securities. The retention of a mortgage investment on )iro])erty 
 whicli has fallen in value -o that more tlian two-thirds of th( value of the 
 pii)|)erty is invested is not necessarily a lireacli of trust. The trustees must 
 exerci.se a discretion as practical men having due regard to all the (tircuni- 
 .stances such as the position and solvencv of tile mortgagor ; He Medlaild, 
 Eland v. Median.! (1880) 41 t;ii. I). 470. 
 
 So long as an investment made liy a testator is witiiiii the authorizecl class 
 and the .security continues satisfactory, the executors may retain it, and when 
 the security hecomcs iiisntiic-iciit tliey are not lialile for still retaining it in the 
 absence of wilful default whi(-li incliules want of ordinary prudence : He Chap- 
 man, Cocks v. Cliaiiinan (18i)li) 2 Ch. 763. 
 
 Relief of Trustees. Trustees acting reasonably and honestly may he relieved 
 from liability : 02 V, c. !■") s. 1 : .see notes to ll. S. (). c. I2!l .s. .'11 (a) p. :?i'3. 
 
 m 
 
I't.v 
 
 J. 
 
 l(,Mjrl 
 lloll, 
 Itllil 
 
 |)vor 
 |liiit 
 
 |11('\V 
 
 not 
 
 h of 
 
 [iiu.st 
 
 flity 
 
 ;iiicl 
 
 lliu 
 
 the 
 
 light 
 
 Itake 
 
 CHAPTER 131. 
 
 An Act to Protect persons acting as Executors or 
 Administrators. 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : 
 
 jweiit 
 in 
 
 lit of 
 Iviil 
 
 1. I). 
 
 I. Where any one has been or is hereafter appointed, by a Piotection of 
 CoiTrt having jurisdiction in that behalf, administiator of the aTexe'cutor"'*^ 
 estate of any person who on account of absence for seven iind adminiH- 
 years or foi' any other reason has been presumed to be <lead, Mmj^guppilsed 
 or where probate of a will made bj'^ any such person has been to be deceased, 
 or shall be granted by such Coart, all acts done under the 
 authority of sucli appointment or probate, shall, notwithstand- 
 ing it may thereafter appear that the presumption of death 
 was erroneous, be as valid and effectual as such acts would 
 have been had such person been dead ; but the person errone- 
 ously presumed to be dead shall, subject to the provisions of 
 sections 3 and 4, have the right to recover from the person 
 acting as executor or administrator any part of the estate 
 remaining in his hands undistributed, and no more ; and shall, 
 suljeet to the provisions of the statutes of limitations, be 
 entitled to recover from any one who received any portion of 
 his estate as one of his next of kin, or as a devisee, legatee or 
 heir, or as the husband or wife of such person, the portion 
 so received, or the value thereof. .53 V. c. 29, s. 1 
 
 'i. Where a will is admitted to probate, or a grant of Protection of 
 administration is made with will annexed, or on account of sup- !Jr"en"iit^ve» 
 posed intestacy, by a Court having jurisdiction in that behalf, acting upon 
 all acts done under the authority of such will or grant ^,'."Jt!,°y'^I,'f"*' 
 of administration shall, notwithstanding it mav afterwards docenHed. 
 appear that the deceased had left a will, or left a will which 
 super.seded that of which probnte was granted or which was 
 annexed to the said letters, or notwithstanding that it appears 
 that the will admitted to probate or administration was not 
 duly executed, or was for any reason invalid, be as valid and 
 effectual as such acts would have been if such will had been the 
 last will of the deceased, and had been duly executed and 
 had been valid, or in case of administration as ou intestacy as 
 valid as such acts would have been if the deceased had died in- 
 testate ; but upon the revocation of the j^rant of probate or 
 administration, the new personal represent ativo of the ileceased 
 shall, subject to tlie provisions of sections 3 and 4, have the 
 
 [4Q5] 
 
■HPiMHPIHilil 
 
 ■■I 
 
 m 
 
 40(j 
 
 Sec. 4. 
 
 PROTECTION OF EXECUTORS. 
 
 Chap. 131. 
 
 
 ^/^ 
 
 i 
 
 i 
 
 ! 
 
 right to recover Iroiu the person acting as executor or admin- 
 istrator as aforesaid, any jiart of the estate remaining in his 
 hands undistributed, and no more ; and shall, subject to the 
 provisions of the statutes of limitations, be entitled to recover 
 from any one who erroneously received any portion of the 
 estate of the deceased as one of his next of kin, or as a devisee, 
 legatee, or heir, or as the husband or wife of the deceased the 
 portion so received or the value thereof. 53 V., c. 29, s. 2. 
 
 15. The .said executor or administrator shall have the right 
 ad*'^'''''at • ^""^ *'^ retain out of any amount remaining in his hands undis- 
 tors. tributed his proper costs and expenses in the administration 
 
 of the estate. 53 V., c. 29, s. 3. 
 
 Coats of 
 
 Persons 
 
 acting 
 
 fraudulently. 
 
 4. Nothing herein contained shall protect any person acting 
 as administrator or executor where such person has been privy 
 to any fraud by means of which the grant of ailministration 
 or probate was obtained, or in cases arising under section 1 in 
 respect of anything done after he becomes aware that the per- 
 son who was presumed to be dead is alive, or in cases arising 
 under section 2, that the will was not duly executed, or for 
 some other reason was invalid, unless the thing so done was 
 in pursuance of a contract for valuable consideration made 
 before the said executor or administrator was aware to the 
 eilect aforesaid. 53 V. c. 29, s. 4. 
 
PROTECTIDN OF EXECUTORS. 
 
 407 
 
 NOTES. 
 
 Sections in pari materia. S. 21 of The Sunogato Courts Act (R. S. 0. c. 59) 
 provides that probate or Letters of Aihiiinistration l)y whatever Court jfranted 
 shall, unless revoked, have effect ovei' the property' of the deceased in all parts 
 of Ontario, and section (i.S provides that in case any probate or administration 
 is revoked under tliat Act all payments Imint /hit made to anj' executor or 
 admitiistrator inuler sucli probate or administration before the revocation 
 thereof siiall bo a legal discharge to the person making tiu; same, and the 
 executor or administrator is protected as to all payments wiii(;ii the subse- 
 ((uently appointed representative might liave lawfully made, and by section (54, 
 all persons and corporations lioiia _fi(l.e making or permitting pa^'ments or 
 transfers upon any probate or letters of administration are j)rotected notwith- 
 standing any defect or circumstance affecting tlieir validit}'. Those sections 
 would appear to be in affirmance of tlie connnon law; Allen v. Dundas (17B9) 
 3 T. R. 1-25; Prosser v. Wagner (1856) 1 C. B. N. S. 289; Irwin v. Bank of 
 Montreal (1870) ,^8 U. C. R. 37.5. They are, however, based upon tiie hypo- 
 thesis of death. Where a person is not dead a Surrogate Court has no juris- 
 diction over his estate and a grant of probate or letters of administration is 
 void; .loclnimsen v. Suffolk Savings bank (1861) 3 Allen (Mass) 87, but see 
 Roderigas v. East River Bank (i875) 63 N. V. 460. 
 
 Tlie present Ant protects not only all persons dealing with personal repre- 
 sentatives Init also tlie personal representativt s themselves, so long as they 
 acted lioiiii Jidc. The pr.itection extends to all cases whether the grant of 
 prol)ate or letters of administration was merely voidal)le and subject to revo- 
 cation or absolutely void. Tiie distinction between void and voida)ile grants 
 will l)e found discusse<l in Williams on Executors, 9th Kd. 501, it stq. 
 
 Presumption of Death. A jiarty who lias not l)ecn heard of for 7 years may 
 lie presumed to be deail, Williams on Executors, 9th Ed. 264 n. (s. ) and under 
 special circumstances, .such as tlic non-arrival of a vessel upon -.vhich lie .sailed, 
 the presumption maj' l)e iiia le before the expiration ol 7 years ; Sillick v. Booth 
 (1841) 1 V. & Coll. C. C. 117; Lakin v. Lakin (1865) .34 Beav. 443; Daiiby v. 
 Daniiy (18.M)) 5 .Tur. N. S. 54; Re Beasney (1869) L. R. 7 Eq. 498; Hickmiui 
 V. Upi:all (1875) L. R. 20 Eij. 136. 
 
 Refund. A person who received a legacy from an executor under a ^-'ill 
 which was afterwards set aside, was lieforo the Act liable to ryfund tlie same 
 to a sub.se(iuently appointed administrator; Haldan v. Beatty (1876) 40 
 U. C. R. 110. 
 
 Persons Acting Fraudvlently. If after the grant of letters of administration, 
 a will should be discovered, the administrator should take steps to liave the 
 grant revoked; Elme v. Da Costa (1791) I PI"'!. 173. 
 
PART IX. 
 
 Commercial Law. 
 
 [4091 
 
CHAPTER 78. 
 
 An Act to prevent Priority among Execution 
 
 Creditors. 
 
 As amended by 02 V. c. 11, s. 13, 
 
 
 i 
 
 'II 
 
 Shokt TITLK, 8. 1. 
 
 Intekpkktation, s. 2. 
 
 no i'kiokity among execution 
 ckeditok.s, s. 3. 
 
 Notice to be entered by Sheriff 
 after levy, 8. 4. 
 
 Distribution of money levied, ss. 
 4, 5, 22, 32. 
 
 Proceedings where debtor allows 
 executions to remain unsatis- 
 FIED, SS. 6-21. 
 
 Procedure by Sheriff on attach- 
 ment UNDER ABSCONDING DEBT- 
 ORS Act, 8. 22. 
 
 Costs of Claimant, s. 23. 
 
 Payment to Sheriff of fund in 
 Court, 8. 24. 
 
 Sheriff may obtain goods in hands 
 of Division Court Bailiff, 
 s. 2f). 
 
 Apportionment where amounts 
 levied insufficient to pay all 
 
 CLAIMS, S. 2(). 
 
 Levy'ing interest /-.nd costs, s. 27. 
 Sheriff's poundag 5, s. 28. 
 
 MOJTEY MADE ON tNE WRIT TO BE 
 CONSIDERED MADE ON ALL EN- 
 TITLED TO be>efit thereof, 
 
 8. 29. 
 
 Statement to be kept in Sheriff's 
 office pending distribution, 
 8. 30. 
 
 Sheriff to give information as to 
 estate, s. 31. 
 
 Distribution by Sheriff where 
 amount levied is insufficient 
 to meet all claims, 8. 32. 
 
 Directions by Judge to avoid un- 
 necessary PARTIES AND TRIALS, 
 8. 33. 
 
 Direction by Judge to Sheriff 
 where claim is disputed, 
 8.34. 
 
 Decisions to bind all creditors, 
 
 8. 35. 
 Sheriff to deposit moneys in 
 
 . BANK, 8. 36. 
 
 Attachment of debts owincj to 
 execution debtor, 8. 37. 
 
 Appeal, 8. 38. 
 
 Powers of Judge, 8. 39. 
 
 Defects of form in proceedings, 
 8. 40. 
 
 Fees payable to the Crown, s. 41. 
 
 Act not to interfere with the in- 
 solvent LAWS, 8. 42. 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 Short title. 1. This Act Hiay be cited as "The Creditors' Belief Act." 
 
 R. S. O. 1887 c. lj.5, s. 1. 
 
 Intprpieta- 
 
 tion. 
 
 " Sheriff." 
 
 "Judge." 
 
 3. In this Act the word "sheriff "shall include coroners; the 
 word " Judge " shall mean the Judge of the County Court of the 
 county or district in v/hich the claims are filed, and shall in- 
 clude a Junior or Deputy-Judge, or a Judge of another ci. nty 
 authorized to act for the Judge of the County Court in which 
 
 [410] 
 
Sec. 4 (5) 
 
 CUEDITOISS RELIEF ACT. 
 
 Chap. 78. 
 
 411 
 
 ^"' '"^ tion creditors. 
 
 the claims are tiled. If a Judge i.s dis(iualilieil to act in a matter 
 arising under this Act, the Judge of the County Court of an 
 adjoining county shall have jurisdiction to act in his place. 
 R. S. O. 1887, c. 65, .s. 2. 
 
 3. Subject to the provisions hereinafter containtid, there No priority 
 shall be no priority among creditors by e xecution froi 
 High CourTorConnty Courts. K S. U. 1887, c. Jjo, s. 3. 
 
 4. — (1) In case a sherift" levies money upon an execution Sheriff, after 
 against the property of a debtor, ho shall forthwith enter in a J|^^^J' t"'"»te'' 
 book to 1)0 kept in his office, open to public inspection without thereof. '' 
 charge, a notice stating that such levy has been made, and the 
 amount thereof ; and the money shall thereafter be distributed 
 ri^tably . amongst all execution creditors and other creditors Distribution. 
 whose w^rits, or certificates g iven und er 
 sheritt s hands at thg time of tiio Ic 
 their writs or certificates to the 
 month from the entry of notice ; 
 
 this 
 
 le_v^r 
 said 
 
 Act, 
 who 
 
 were m tKe 
 
 shall deliver 
 
 sherifi' wuthin one 
 
 •subject, however, to the 
 
 provisions hereinafter contained as to the retention of dividends 
 in the case of contested claims, and to the payment of the costs 
 of the creditor under whose writ the amount was made. 
 
 (2) The notice shall state the day upon which it was entered Form of 
 and may be in Form A, given in the Schedule hereto. ""''<'"• 
 R. S. O. 1887, c. 0.5, s. 4 (1, 2). 
 
 (3) The two preceding subsections shall not apply to any Moneys 
 moneys received by a Sheriff as the proceeds of a .sale of prop- real'^edon 
 erty by him under an in terplea der order ; but upon the deter- interpleader 
 mination of the interpleader issue in favour of the creditors, the '"''ler. 
 moneys whether in the Sheriff's hands or in Court pending the 
 
 trial of the issue, shall be distributed by the Sheriff among the 
 creditors contesting the adverse c.'aim. .50 V., c. .5, s. 12, (1). 
 
 (4) Where proceedings are taken by the sheriff or othci' officer Rifrhtsof 
 for relief under any provisions relating to interpleader, those u^e'of^intei-- 
 creditors only who are parties thereto and who agree to contri- pleader pro- 
 bute pro rdta (in proportion to the amount of their executions ^pedings. 
 
 or certificates) to the expense of contesting any adverse claim, 
 shal.' be entitled to share in any benefit which nia/ be derived 
 from the contestation of such claim so far as may be necessary 
 to satisfy their executions or certificates. The Court or Judge 
 may direct that one creditor shall have the carriage of the 
 interpleader proceedings on behalf of all creditors interested, 
 and the costs thereof, as between solicitor and client .shall be 
 a first charge upon the moneys or goods which may be found 
 by the proceedings to be applicable upon the executions or 
 certificates. R. S. O. 1887, c. 0.5, ,s. 4, (3). 
 
 (5)" Adverse claim " in the next preceding subsection shall Meaniug^f 
 
 mean any claim to contest which an intprpleader issue is 
 directed ; and upon any interpleader application the Court or 
 Judge shall have a discretion to allow to other creditors who 
 
 adverge 
 claim, " 
 

 i 
 
 I 
 
 412 
 
 Chap. 7«. 
 
 CKEDirORS RELIEF ACT. 
 
 Sec. 4 (.5). 
 
 1 rovisiona in 
 caae of Hubde- 
 (|uent levy. 
 
 <lesire to take part in the conte.st, a rea.sonal)le time in which 
 to place their execution.s in the Sheriffs liands, upon such tenns 
 as to costs iind otherwise as may be just and reasonable. .)6 V. 
 c. ry, 8. 12, CI). 
 
 (6) In case the sherifi' shall, subse(iuently to the entiy of 
 the notice, but within tlie month, levy a fui'tlu-r amount 
 from the property of a debtor, the same shall be dealt with as 
 if such amount had been levied prior to the entry of the 
 notice, l)ut if after the month a i'urther amoinit is levied 
 a new notice shall be entered; and the ilistribution to be made of 
 the ainoinit so levied and of the further amount levied within 
 a month of the entry of the last mentioned notice shall be 
 governed by the entry tlu-reof in accordance with the fore- 
 going provisions of this section ; and .so on from time to time. 
 R. S. O. 1887, c. (>.'), ,s. 4(4). 
 
 No prefarence (7) Iti distributing money under this section creditors who 
 in respect of have executions a^fainst "oods or lands only or uijainst <:oods 
 
 wilt against , , , i ,, , ° ,• i i , i . i i '? n ,i 
 
 goods or lands, and lands shall be entitleil to share ratably with all others 
 any moneys realized unu.'r execution against either goods or 
 lands or against b(jth. 51 V. c. 11, s. 2. See 57 V. c. 26, s. 1. 
 
 [As to rir/hts of employees of execution debtors in respect of 
 vjdcjes, nee Gap. 160, Sec. //..] 
 
 Certain credi- 5. No crcditoi' shall be entitled to share in the distribution 
 
 tors excluded, ^^f money levied from the property of a debtor unless either 
 
 by the delivery of a writ of execution, or otherwise under tills 
 
 Act, he has establishetl a claim against the debtor either alone 
 
 or jointly with some other person. R. S. O. 1887, c. 65, s. 5. 
 
 a debtor permits an execution issued against him i 
 liieh any of his goods or chattels are seized by a 
 [Satisfied in the sheriff's hands till within 
 
 Prooeedingij it. If 
 
 where debtor ^j,j,l^;j. ^y]jj^^^,j ^^y 
 allowH execu- , .,,. • 
 
 tions to remain sluTirt, to remaui 
 
 unsatisfied. two day s of the time fixed by the sheriff for the sale thereof, 
 
 or foi' tw^entv days after the sei zure, or allows an executio n 
 
 against his lands toj'i main unsati.stied for^nine months after 
 
 it is placed in the slnrifi"s hands, the proceedings hereinafter 
 
 authorized may lie taken by other creditors as claimants in 
 
 respect of debts which are oyerdiie. R. S. O. 1887, c. 65, s. 6. 
 
 Affidavit by 
 creditor. 
 
 ■^ 
 
 Service on 
 debtor. 
 
 7. — (1) An affidavit to the effect of Form B. in. the Schedule 
 to tliis Act, of the debt and tlie i^avticulars thereof, may be 
 made in duplicate by the creditor, or by one of the creditors 
 in case of a joint debt, or by a person cognizant of the faiits. 
 Prior to or simultaneously with the tiling with the clerk 
 of the County Court of the affidavit, there shall lie filed wit h 
 the clerk the certificate of the .sheriff", or a n affidavit, shewing 
 that such proceedings nave been had against the debtor as 
 entitle the creditor to proceed under this Act- 
 
 (2) The claimant is to serve ou ^^-q] ilnKtnn r«no nf f,]^^^ 
 duplicate s, and a notice stating that the claimant intends 
 to file the other duplicate with the clerk of the County 
 

 Sec. 8 (5). 
 
 CREDITORS RELIEF ACT. 
 
 Gmp. 7S. 
 
 413 
 
 Court l>y reason of there beiiijf in the sheritt's hands a writ of 
 execution aj^ainst the<,'0()(l.s antl chattels (or hinds) of tlie dehtor, 
 and that the claiuiantr intends to call on the sherilf to levy the 
 said deht out of the property of the dehtor under the au- 
 thority of this Act: which notice is t o contain the other par- 
 t ic ular.s shown in the Form U , iciven ni the schedule to tlii s 
 Act. The notice may ht; cither attached to the aHidavit served, 
 or endorsed thereon ; where the affidavit is to be served out of 
 Ontario the J>id;;(' shall limit the time at whidi the next step 
 mav he taken hy tin claimant as hereinafter provided. R. S. O. 
 1S,S7, c. 6"J, s. 7. 
 
 H, — (1) An execution ihditor may ^ive notice in writing U) th e Notice by 
 
 sheriti" that anv claims to lie .served upon liini mav he .served '•^^'"'^ "f 
 
 ^ tj-St , n , , II ■ — ' I " 1 r-.— address for 
 
 u pon any solicitor ni the l:^i-ovince, whose name and address aervice. 
 
 shall he given, or hy mailing the same to an a<ldress .stated in 
 
 the notice : the sheriff shall thereupon enter tlie notice in 
 
 the said hook in section 4 mentioned, and so long as any exe- 
 
 cuti(m, which was in tlie sheriti's hands at the time the notice 
 
 was given shall remain in his liands, shall repeat such entry 
 
 immediately hclow any notice (Form A) given in respect of 
 
 the execution, unless the notice be revoked in writing, in which 
 
 case the entry or entries thereof shall be marked " revoked." 
 
 (2) So long as the notice is not revoked in manner afoi'e- Service of 
 said an affidavit of claim and accompanying notice under this cUim with 
 Act, may, where a .solicitor is named, be served upon anexecu- notice, 
 tion debtor by serving the same upon the solicitor in accord- 
 ance with this Act, or if mailing is re([uired, then by mailing 
 
 the .same, enclosed in an envelope, prepaid and registered, to 
 the address given in the notice. 
 
 (3) In case the notice (Form C) served on a debtor does not Service on 
 state .some place in or within three miles of the county town of where no ad- 
 the county in which the proceedings are being taken, at which dress given, 
 service may b(> made upon the claimant, or does not give the 
 
 name and address of some soliL•^i..^'i• in the Province who may 
 be served on the claimant's behalf, service of any notice, paper 
 or document reipiiring service may be made upon the claimant 
 by mailing the same, prepaid and registered, enclosed in an 
 envelope addressed to the claimant at tie county town. 
 
 (4) The claimant shall file with the clerk of the County Affidavit to 
 Court of the <?"ountv, the sheriff of which has the execution, be filedwith 
 one of the said duplicate affidavits of claim, and a copy of the l^'^^i'^"^ '^°"" ^ 
 said notice, with an affidavit of due service; which affidavit 
 
 may be in the Form D. 
 
 (.5) The copy of affiilavit and the notice shall, where prac- Mode of ser- 
 ticable, be personally .served upon the debtor; but if it be vice, 
 made to appear to a Judge that the claimant is unable to 
 effect prompt personal .service, the Jud;. e may order .substitutc fl 
 or other ser oiifl. or may appoint some act to be done whicTi 
 shall be deemed sufficient service. R. S. O. 1887^ c. 65, s. 8. 
 
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414 
 
 Chap. 78. 
 
 CREDITORS RELIEF ACT. 
 
 Sec. 9(1). 
 
 Effect of cer- 
 tificate. 
 a 
 
 Certificate to 9. — (1) If the claim is not contested in n;anner hereinafter 
 
 creditor where mt^ntionod, t he Cou nty Court Clerk — after ten days from tlie 
 
 claim not diH- day of personal service, or service under subsection 2 of section 
 
 ptited. ^^ Qy Yvithin the time mentioned in the order(as the case may l)e), 
 
 on application and the filing with hhi) of proof of personal service 
 
 upon the debtor of an affidavit and notice in accordance v.'itli this 
 
 Act, or proof of compliance with a Judge's order in that behalf, or 
 
 upon the determination of the dispute in favour of the claimant, 
 
 either in whole or in part — shall deliver to the creditor , or anj' 
 
 one on his liehalf, a certificate to the ett'ect o f Ij'orm TJI, in the 
 
 Schedule heri^o ; and in case the claim is only dispiited as to a 
 
 part, the creditor may elect, by a writing filed with the clerk, to 
 
 abandon such part and obtain a certificate as to the residue. 
 
 (2) The ci'rtificate shall be delivei'ed to the .sherift' and 
 thereViy from the time of the delivcny the claimant shall be 
 deemed to be an execution creditor within the jneanino- of this 
 Act, and to be entitle<l to share in whatever is made under 
 the executions of creditors in the sherifi"s hands, as if he had 
 delivered to the sheriti' an execution against lands or goods, or 
 both, as the ca.^e may l)e, and the certificate shall in like manner 
 bind the lands and goods of the debtor ; subject, however, to 
 the debt being afterwards disputed by a creditor as hereinafter 
 provided. 
 
 (3) A certificate under this Act shall in interpleader pro- 
 ceedings be deemed to be an execution. 
 
 (4) If the certificate is obtained by a solicitor, the name 
 and place of abode of the solicitor shall be endorsed thereon ; 
 and if the certificate is sued out by the claimant in person 
 there shall be endorsed thereon a statement of some ji'ace in, 
 or within three miles of the county town of the county in 
 which the proceedings are Iteing taken, at which service may 
 be made upon the claimant ; and, in default thereof, service 
 of any notice, paper or document reijuiring service, may be 
 made upon the claimant by mailing the same, prepaid and 
 registered, enclosed in an envelope addressed to the claimant at 
 the county town. 
 
 On receipt of * (^5) On receiving the certificate the sheriff shall make a 
 flha'^'^tiini.ilcci t"'^'^^^^''^' Seizur e of the lands and tenements, or goods and chat- 
 further levy, itels, as the case may be (if any), of the u'ibtor to the amount 
 of the <lebt so claimed, and the .sherirt's fees; and .so on from 
 time to time in case more certiHcates are received after the 
 further seizure so made. R. S. 0. 1(S87, c. 65, s. 9. 
 
 Time certifi- (6) A certificate issued j inder this Act shall remain in force 
 oate to remain for three yeara f I'om the date thereof and no longer, unless re- 
 newed, but such certificate may from time to time be renewed 
 in the .same manner as a writ of executicm, but notwithstand- 
 ing the expiry of a writ or certificate prior to the termination 
 of the month during which a notice of money having been 
 made is under this Act re(|uirc(lto Vic posted, the said writ and 
 certificate shall, as to any money levied during such montli, l)e 
 deemed to be in full forf'e and ett'ect. R. S. O. 18.S7, c. 05, 
 8. 29 (2); GO V. c. 14, s. P 
 
 Certificate an 
 execution for 
 interpleader 
 purposes. 
 AddreBs for 
 service to be 
 endorsed on 
 certificate. 
 
 
Sec. 11 (2). 
 
 creditors' relief act. 
 
 Chap. 78 
 
 415 
 
 10. — (1) The claim may be contested by the execution debto r Disputing 
 or by a creditor Interested in contesting the same. claim. 
 
 (2) If the debtor contests the claim, he shall for that purpose Affidavit of 
 fde with the clerk an affidavit stating' that he has a goo d debtor, 
 defen ce to the claim, or to a specified part of the claim on the 
 merits, but the Judge may dispense with the affidavit on terms 
 
 01' otherwise. 
 
 (3) The debtor shall file the affidavit and serv e upon the Filing and 
 claimant a copy thereof witliin ten days after the personal ser- '^!^\'*'';."^ 
 vice, or service under subsection of 2 section 8, upon him of the 
 nfflilavit of claim and the notice, or within the time which the 
 
 mdg'j by an order dispensing with personal service directed, or 
 vithiii any further time which the Judge may allow : the Address for 
 affi-davih shall have endor.sod thereon a statement of some ^'^■■^'°*^- 
 place in, or within thi-ee miles of, th' county town of the 
 county in which the proceedings are being taken, at which service 
 may be made upon the debtor, or the address of some solicitor 
 in the Province who may be served on the debtor's behalf, and 
 in default thereof, service of any notice, paper, or document re- 
 quiring service, may be made upon the debtor by mailing the 
 same, prepaid and )'egistered, enclosed in an envelope addressed 
 to the debtor at such county town. 
 
 (4) If the contest is by a creditor , he shall for that pur- Creditor dis- 
 pose file with tlie clerk an atfldavlt to the effect that he ha s I'uting claim. 
 reason to believe that the debt claimed is not really and in 
 
 good faith due i rom tlie debtor to ttic claima nt ; but the Judge 
 may di.spen.se with the affidavit on terms or otherwise. 
 
 (6) Such affidavit by a creditor may be so filed, and a certi- Ti,„e for filing 
 ficate thereof delivered to the sheriff, at~any t ime uefore distr i- affidavit, 
 bution is made. R. S. O. 1887, c. 6.5, s. 10. ' ~ 
 
 1 1. — (1) In case of a claim beint^ cont ested liy a creditor after Distribution 
 a certificate lias been placed in the sherirt's hands, the .sheriff , by sheriff in 
 unless the Judge otherwise orders, shall proceed and levy as if tatfon. °°"*®''' 
 such contestation had not V)een made, and-the sherifi' shall, until 
 the determination of the contestaticm, retain in the bunk th e 
 amoun t whi ch would be apportionable to the claim i f valid, 
 and lie shall, as soon after the expiry of the .said month as 
 practicable, distribute the residue of the money made amongst 
 those entitled. 
 
 (2^ I j ho. clnimant whose claim is contested may apply to a Proceedings to 
 Judg e for an order allowing his claim and determining the enforce claim, 
 amount ; and in case he does not make such application yithin 
 pj(r|^f-| dnys nf Ijjw receiviny notice of the contestation (or within 
 such further time, if any, as the Judge upon the delay being 
 reasonably accounted for may allow), he .shall be taken to hav e 
 abandoned hisclaim ; if the contestant is a creditor and there is 
 reason to believe that the contestation is not being carried on in 
 good faith, any other creditor may apply for an order jiermit- 
 ting him to intervene in the contest. R. S. 0. 1887, c. ()■"), s. 1 1. 
 
416 
 
 Chap. 78. 
 
 CRKDITORS HKLIEF ACT. 
 
 Sec. 12 (1). 
 
 Mode i)f deter- 
 iiiiniiiR miea- 
 tiiiiiH in diR- 
 pute. 
 
 Where sum in 
 
 l*i. — (1) Tlie Judue may rlotcnnine any ([uestioDsin dispu te 
 in ii .suiimiarv manne r, or may direct an action or issue, in any 
 Court or county; for the trial thereof, and may make such order 
 as to the costs of the proceedings as may l»e just. 
 
 (2) Whe re tlicrc is a dispute as to material facts , and the 
 8400? '^ "'°^" sum in controversy appears to he over S400 , exclusive of costs, 
 the Judge shall direct the tx-ial to be hi the High Ccnirt 
 and may name the county in which the trial is to take 
 place, subject to any order which the High Court or a Judge 
 thereof may .see tit to make in that behalf. In case an issue is 
 directed it shall be tried in all respects as if it had been an action 
 in the Court in which it was ordered to be tried. R. S. 0. 
 1887, c. 65, .s. 12. 
 
 r- i 
 
 Examination 
 of parties. 
 
 Proceedings 
 by ceditor 
 wlio has ob- 
 tained a di- 
 vision court 
 judgment. 
 
 1 li. The same proceedings may be had for the examinatio n 
 of parties or others, either liefore or at the trial, as may be 
 taken in an ordinary action, and such proceedings, may also be 
 taken prior to the application to the Judge, and as a foundation * 
 therefor. R. S. O. 1887, c. 65, .s. 18. 
 
 14. A creditor who has j-ecovered a judgment in a Division 
 Court against the debtor may serve mtpn the glrgrff raTmemo - 
 randiim of the amount of his judgment j ind of the costs to 
 which he is entitled, imder the hand of the clerk and the sea l 
 of the Division C ourt; and the memorandum so served shall 
 have the same ehect tor the purposes of this Act as if the credi- 
 tor had delivered to the sheriff a Yi-it of execution directed to 
 the said sheriff from a County Court. R. S. O. 1887, c. 65, 
 s. 14 
 
 I.'*. Where a creditor has taken in one county the ])rescribed 
 proceedings in respect of his claim, and desires to estalili-sh his 
 claim for the purposes of this Act in another county also, he 
 may do so by obtaining from the said County Court Clerk 
 another certificate (Form E), and ( jeliyerino- the same to t he 
 .sh eriff of siicli other county , and the delivery of tlie certihcate 
 Eo"t]ie slieriff shall have the same effect for the purposes of this 
 A".t in the county in which the same takes place, from the day 
 of the delivery, as if a new notice and affidavit of claim had 
 been served for the county and other proceedings had in re- 
 .spect thereof under the previous proxisions of this Act. 
 R. S. 0. 1887, c. 65, s. 15. 
 
 ni^ed'o'""^ l'^" 1 ii. A creditor, entitled to a certificate from the County Court 
 any county. Clerk, may sue out a writ of execution into any count}' in the 
 
 .same manner ns on an ordinarA' udgment. R. S. O. 1887, 
 
 c. 65. .s. 16. 
 
 l!i:£i5iiauii I"}. In ca.se a claim is contested in one county, the decision 
 
 ijintlTiiKjn thei-eon shall, as between the parties to it, determine the 
 others . amount of the claim for the purposes of this Act in all other 
 
Sec. 20 (1). 
 
 CREDITORS RELIEF ACT. 
 
 Chap. 78. 
 
 417 
 
 counties in which the claim i.s filed, and the certificate of the 
 Clei-k of the County Court of the county in which the contest 
 has taken place, of the result thereof, shall be lyrimia facie 
 proof of the decision. A certificate shall, upon payment of 
 a fee of fifty cents, be granted to any partj- to the proceedings 
 who applies therefor. R. S. 0. 1S87, c. Go, .s. 17. 
 
 1 8. — (1) The clerk of the County Court shall keep a book in cu-rk of 
 which, before f]^ranting a certificate or issuing an execution for t\'T'^)*to"k 
 a claim, he shall enter the following particulars with i-eference of record, 
 to every claim in respect of which he gives a certificate under 
 this Act ; 
 
 (a) The name of every claimant, and of every debtor ; 
 
 (6) The date of entry of judgment ; 
 
 (c) The amount of debt, exclusive of costs ; 
 
 (cZ) The amount of costs; 
 
 (e) If the proceedings have been set aside, this fact, and 
 shortly the reason therefor ; 
 
 (2) The entr y shall (subject to the provisions of this Act) Effect of 
 be an "award of lud^^nent for the debt and costs, and shall enfy- 
 have the same ett'ect as an entry of judgment for non-appear- 
 ance to a specially endorsed writ. The clerk shall index the 
 entries in the l)ook alphabetically under the name of every Index, 
 debtor. 
 
 (3) In case the original papers happen to be lost or dcs- Copy of entry 
 troved, a copy of the entry in the book shall be evidence of evidence, 
 alfmatters therein set forth. R S. 0. 1887, c. (35, s. 18. 
 
 11>. — (1) With respect to claims, the Judge, before or after a Granting time 
 certificate is issued by the clerk undei' tiiis Act, or delivered to todeptor. "^ 
 the sheriff", may, on the application of the debtor, and notice to a '**f*^ » ^ A''*V*' ' 
 claimant, give to the debtor further time to pay the claim whei'e 
 the Judge is of opinion that this can be done without injustice 
 to the creditor, or may give to the debtor further time on terms 
 wliich in the opinion of the Judge may l)e just. Thei'e may 
 be successive orders for this purpose, but no claim shall be de- 
 la j'ed by such orders for more than three months in al l. 
 
 (2) This section shall not apply to creditors who have obtain ed Preceding sub- 
 j udt^ment in the ordinary way ; antl the orders for time are ^j''J'j""i "°er° ' 
 
 not to prejudice executions obtained by such creditors on such tain cases, 
 judgments. R. S. 0. 1S87, c. Go, s. 19. 
 
 t'JO. — (1) In case the debtor, without any sale by the sheriff, Vayinent hy 
 pays the full aniount owing in respect of the executions and <Mtt " ' ' I '^ f"™ 
 claims in the sherifi's hands at the time of such payment, and no — ' ^Stu^ / ^.^ .«_ 
 other claim has been filed with the Cleik of the County Court, '^ ' 
 
 or in case all executions arid claims in the sheritt"s hands are 
 withdrawn, and any claims served are paid or withdrawn, no 
 notice shall l)e entered as required by section !• of this Act, 
 S. c. 1 
 
o 
 a- 
 
 r ■ 
 
 5; 
 
 ii 
 
 41S 
 
 Chap. 78. 
 
 CREDITORS RELIEF ACT. 
 
 Sec. 20 (1). 
 
 Application of 
 moneys paid 
 by debtor to 
 sheriff volun- 
 tarily. 
 
 and luj t'urtlu'r proceedings sliall be taken under thi.s Act 
 against the debtor by virtue of the executions having been 
 in tlie sherirt^s iiands. R. S. 0. 1887, c. 65, s. 20 (1); 51 V. c. 
 11, s. 3. 
 
 Effect of (2) Save as aforesaid, atler a certificate has been filed with 
 
 dra\v.al"o?^' ' tlie sherilj'. the ^vith(h•a^V{vl or expiry of the writ, upon whicli 
 writs. the proceedings are founded, or any stay upon tlie writ, or tlie 
 
 satisfaction of the pUiintiff's chiini thereon, or the setting 
 aside or return of the writ, shall not affect tlic proceeding s to 
 be taken under this Act, and except so far as the action taken 
 in regard to the writ may affect the amount to be levied, the 
 sheriii' shall proceed and levy upon the goods or lands of the 
 debtor, or both, as he would have proceeded had the writ 
 or writs remained in his hands in full force to be executed, 
 and he may also take the like proceedings as he would have 
 been entitled to take had the writ been a writ of venditioni 
 exponm. R. S. 0. 1887, c. 65, s. 20 (2). 
 
 (3) T n case a debtor voluntarily, and without any sale by 
 the sheriff, pa ys to the sheriff _ part of the amoun t owing, in 
 respect of an execution or claim in the sheriff's hands, and 
 there is at the time no other execution or claim in the sheriff's 
 hands, ijin f^lierifF sbnll apply thft same o n the execution or 
 claim so in his hands, and section 4 of this Act shall not apply 
 to the money so received by the sheriff. 52 V. c. 10, s. 7. 
 
 'i\. Where the address of a solicitor is given for service, 
 and is not within three miles of the county town where the 
 proceedings are carried on, service may be made upon him by 
 serving his agent in Toronto. R. S. 0. 1887, c. 65, s. 21. 
 
 *i'i. If either before or after the I'eceipt by the sheriff of an 
 execution against the goods or lands of a debtor, a writ of 
 attachment under The Act respecting Absconding Debtors is 
 placed in the hands of the sheriff before he distributes the 
 estate of the debtor, the sheriff shall realize the estate of th e 
 debtor, as provided by The A ct resp ecting Ahscnndlm/ Ikbtor s. 
 but the same when so reali zed shall be d istributed under the 
 provisions of this Act. "ETB. 0. 188V, c. 65, s. "2^ — 
 
 !JI{. The clerk shall ascertain and state in his said certificate, 
 the amount of the costs to which the claimant is entitled as 
 against the debtor. Such costs shall be the following : 
 
 1. For serving the affidavit of claim, to be allowed upon 
 the scale of the High Court in the case of claims over S400, and 
 on the County Court scale in the case of claims exceeding §200 
 and not exceeding S400, and on the Division Court scale in the 
 case of claims of !?200 and under ; 
 
 2. Tf the claim dncs not exceed S2()0 no greater fees are to 
 be alk)wed for service of the claim and notice and mileage in 
 respect thereof, than would be allowable to the Division Court 
 
 Service on 
 Torontoagent 
 
 Proceedings 
 on attach- 
 ment. 
 
 Rev. Stat, 
 c. 79. 
 
 Costa of claim 
 ant. 
 
Sec. 25 (2). 
 
 CREDITORS RELIEF ACT. 
 
 Chap. 78. 
 
 419 
 
 bailiff for the service of a Division Court summons and mileage 
 if the claim had been sued in the proper Division Court ; 
 
 '.i. The fees paid to the County Court Clerk uudi'r this Act 
 shall also to be allowed, which fees shall be the same as he is 
 allowed for like proceedings in the County Court, unless the 
 claim appears to be within the jurisdiction of the Division 
 Court, in which case his fees shall be those allowed for like 
 proceedings in the Division Court ; 
 
 4. Where there is no contest the sum of So for fees of a 
 solicitor (if employed), imless the'>'".'mnt of the claim is within 
 the jurisdiction of the Division Court, in which case the sum of 
 S2 only shall be allowed ; 
 
 o. In case of a contest, such additional costs (if any) as the 
 Judge may nllcw, to be taxed according to the scale of the 
 High Court, County Courts, or Division Courts, according as 
 the amount in dispute is within the jurisdiction of one or other 
 of these Courts ; 
 
 6. The costs of obtaining an order for substituted service 
 or other similar order and of such service, or the costs of and 
 incidental to service out of the Province, in either case to be 
 taxed by the clerk of the Court, and stated in his certificate 
 aforesaid ; if the claim is within the jurisdiction of the Division 
 Court, only such a sum to be allowed for costs as would have 
 been incurred in obtaining a judgment in the Division Court. 
 R. S. 0. 1887, c. 65, s. 23. 
 
 584. Where there is in any Court a fund belonging to an Payment to 
 execution debtor, or to which he is entitled, the same, or a sheriff of fund 
 
 • In courti 
 
 sufficient part thereof to meet the claims in the sheriff's hands, 
 
 may, on the application of the sheriff or any party interested, 
 
 be paid over to the sherift', aiid the same shall be deemed to be 
 
 money levied under execution within the meaning of this Act. 
 
 R. S. 0. 1887, c. 65, s. 24. 
 
 *4i». — (1) If the sheriff does not find property of a debtor sheriff may 
 leviable under the executions and claims in his hands suificient obtain pooda 
 to pay the same in full, and the sheriff finds goods and chattels divi.sion court 
 in the hands of the bailifi' of a Division Court under a writ of bail'ff- 
 execution or attachment against the debtor, the sheriff shall de- 
 mand and obtain the goods and chattels from the bailiff, whoshall 
 forthwith deliver the same to the sheriff, with a copy .of every 
 writ of execution in his hands against the debtor, and a mem- 
 orandum shewing the amount to be levied thereunder, includ- 
 ing the bailifi's fees so far as proceedings have been taken by 
 him, and shewing the date upon which each writ was received 
 by him. 
 
 (2) In case the bailiff fails to tleliver any of the goods, he ivnal£yif 
 shall pay double the value of t!ie property retained, such '^*}!'tf >»''** to 
 double value to be recovered by the sheriff from the bailifi' ® '^^''' 
 with costs of suit, and to be by the sheriff accounted for as 
 
 ^' 
 
 fy 
 
9B8|| 
 
 ■r.f': 
 
 420 
 
 Chap. 78. 
 
 CREDITORS RELIEF ACT. 
 
 Sec. 25 (2). 
 
 part of the estate of the debtor. R. S. 0. 1887, c. 65, ,s. 25 
 (1, 2). 
 
 Bailiff's fees (3) The costs and disbursements of the bailiff shall be a tirst 
 when goods in charge upon the goods, and shall be paid by the sheriff to the 
 areuken'by bailiff upon demand, after being taxed by the Division 
 sheriff. Court Clerk. 52 V. c. 12, s. 7, part. 
 
 Distribution. (4) The sheriff shall distribute the proceeds among the credi- 
 tors under the provisions of this Act, and the Division Court 
 execution creditors shall be entitled, w^ithout further proof, to 
 stand in the same position as execution creditors whose writs 
 are in the sheriff's hands. R. S. O. 1887, c. 65, s. 25 (3). 
 
 
 r: 
 
 
 ' 1 
 
 Mode of ap- 
 portioning 
 money where 
 amount insuf- 
 ficient to imy 
 claims in full. 
 
 Levying inter- 
 est and costs 
 of renewing 
 certificate. 
 
 /JC Where the amount levied by the sheriff is not sufficient 
 to pay the execution debts and other claims, with costs, in full, 
 the money shall be applied to the payment ratably of such 
 debts and costs of the creditors, after retainmo- the sheriff's 
 fees, and Otfter payment in full of the tax ed c osts and th e 
 costs of the execution to the cred itor at wiiose nisiance an d 
 under whose execution ~ffie seizure and levy were made . 
 R. S. O. 1887, c. 65, s. 26. 
 
 21. The sheriff, if directed by an endorsement upon the 
 certificate, shall, in addition to the amounts named in the 
 certificate, levy interest thereon from the date of the certificate, 
 or the date named in that behalf in the certificate, and also the 
 sum of SI. 35 for the disbursements on every renewal of the 
 certificate : and where such renewal is made upon the appli- 
 cation of a solicitor, he shall J.evy the further sum of $1.25 
 for the solicitor's costs on the~ renewal. K. ts. U. 1887, c. (55, 
 s. 27. 
 
 7i8. Where money is to be distributed by a sheriff under 
 this Act, the sheriff* shall not be entitled to poundage as upon 
 separate writs or claims, but only upon the net proceeds of the 
 estate distributable by him, and at the same rate as if the 
 whole amount had been payable upon one writ. R. S. 0. 
 1887, c. 65, s. 28. 
 
 Money made *i*^- — (1) Where money is made upon a writ, the same shall 
 
 on any witto \)q taken for the purposes of the sherift"s return, and otherwise 
 
 as made on all to be made upon all the writs or certificates entitled to the 
 
 writs entitled benefit thereof, and the sheriff' shall, upon payment being made 
 
 Ithereof. ^^ tile person entitled upon such writ or certificate, endorse 
 
 thereon a memorandum of the amount .so paid, but he shall not, 
 
 except on the request of the partj^ i.ssuing the writ, or by 
 
 direction of the Court out of which the same issues, or of a 
 
 jj Judge having the authority of a Judge of such Court, return the 
 
 writ until the same has been fully satisfied, or unless the same 
 
 has expired bj' efiluxion of time, in which case the sheriff" shall 
 
 make a formal return of the amount made thereon. R. S. 0. 
 
 1887, c. 65 8. 29 (1). 
 
 Sheriff's 
 poundage. 
 
Sec. 32. 
 
 CREDITORS RELIEF ACT. 
 
 Chap. 78. 
 
 421 
 
 (2) The like proceedings may be taken to compel payment Compellinff 
 by the sheriff of money payable in respect to an execution g^Jj-^"* ^^ 
 or other claim as can now be had to compel the return by 
 the sheriff of a writ of execution. R. S. 0. 1887, c. 6o, s. 29 (3). 
 
 J50. The sheriff shall, pending the distribution of moneys Statement to 
 levied, keep, in the said book mentioned in section 4, in his ^j'^gK''^',*'^'}^^^ 
 office, a statement according to Form V in the Schedule hereto, pending dis- 
 shewing, in respect of any debtor of whose property money tribution. 
 has been levied, the following particulars : — 
 
 (a) The amounts levied and the dates of levy ; 
 
 (b) Each execution, certificate, or order in his hands at the 
 
 time of entering the notice Form A required by sec- 
 tion 4, or subsequently received during the month, 
 the amount thereof for debt and costs, and the date 
 of receijit, and such statement shall be amended from 
 time to time as an additional amount is levied, or a 
 new execution, certificate or order is received. 
 R. S. O. 1887, c. 65, s. 30. 
 
 31. The sheriff shall at all times without fee answer any Sheriff to give 
 reasonable question which he may be asked orally in respect lo^g^ate of "** 
 to the estate of the debtor hj a creditor, or any one acting debtor, 
 upon behalf of a creditor, and shall facilitate the obtaining by 
 him of full information as to the value of the estate, and the 
 probable dividend to be realized therefrom in his county, or 
 any other information in connection with the estate which 
 the creditor may reasonably desire to obtain. E. S. O. 1887, 
 c. 65, s. 31. 
 
 JJ/J. Where the money levied is insufficient to pay all claims DiBtribution 
 in full, and the time has come for disti-ibuting the money by sheriff 
 levied, the sheriff may forthwith distribute the same as directed J^vied insuf"" 
 by this Act ; or he may first prepare for examination by the ficient to meet 
 debtor and his creditors a list of the creditors entitled to share " " '*""^" 
 in the distribution of the amount levied, with the amount due 
 to each for principal, interest and costs ; the list to be arranged 
 so as, among other things, to she\v the amount going to each 
 creditor under the provisions of this Act, and the total amount 
 to be distributed ; and the sheriff may deliver, or send (prepaid 
 and registered) b y poit to eac'. creditor or his solicitor, 
 a copy of the '^t, with the several particulars afore- 
 said ; "and in such .ase the further proceedings may be as 
 follows : 
 
 1. I f within eight day s after all the said copies have been 
 delivered or posted, or within any further time the Judge may 
 allow, x)n nhjftctiipn ^q nniiflt^ as provided by this Act, the sheri ff 
 s_hall mak e distvibnf.inn forthwith pursuant to such list; 
 
 2. In case an objection is made as provided by this Act, 
 the sheriff shall forthwith distribute such an amount of the 
 
422 
 
 Chap. 78. 
 
 CREDITORS RELIEF ACT. 
 
 Sec. 32. 
 
 Contestation, 
 
 1^ 
 
 r: 
 
 
 fi'>^fiinf shnll, wi tliiii ojo-ht days thereafter, apply- 
 to the Judge for an order adjudicating upon the 
 
 RightB of sub- 
 sequent execu- 
 tion creditors 
 where first ex- 
 ecution follow- 
 ed by a 
 mortgage of 
 sale. 
 
 Z' 
 
 ^ 
 
 money made, and to .such persons ^lari passu, as maA" not 
 interfere with the effect of the objectio n in case the same 
 should be allowed ; 
 
 3. The .sheriff may disregard objections which are frivolous, 
 or manifestly insufficient to interfere with the distribution pro- 
 posed, and distribute as if such objections had not been made ; 
 
 4. Any person prejudiced by the proposed scheme of dis- 
 tribution, ma}' contest the same in manner following.namely, by 
 giving a n otice in writin g to the sheriff, stating therein dis- 
 tinctly his objection to the scheme (or any part thereof) and 
 the grounds of objection, and by, at the same time, delivering 
 to the sheriff an affidavit of previous service of a cop y of the_ 
 notice on the debto r and the creditors interested in resisting 
 the objection, unless the Judge shall l)y order have dispensed 
 with service, or on affidavit of service as the Judge shall have 
 sanctioned ; 
 
 '). T he cont( 
 upon notice 
 
 matter in dispute ; and otherwise the contestation shall be 
 taken to be abandoned. The notice may be in the Form G in 
 the Schedule hereto ; 
 
 6. The Judge may determine any questions in dispute in 
 a summary manner, or may direct an issue or action for the 
 trial thereof, either by a jury or otherwise and in any Court or 
 county, and may make such order as to the costs of the proceed- 
 ings as may be just. This subsection is subject to the same 
 provisions as are set forth in subsection 2 of section 12 of 
 this Act; 
 
 7. In the event of a claimant under a contestation being 
 held not entitled, or only entitled to part of his claim, the 
 money retained pending the contestation, or the portion as to 
 which the claimant shall have failed, shall be distributed 
 among the execution creditors and other creditors who would 
 have been entitled thereto, as the same would have been dis- 
 tributed had the claim in respect thereof not been made 
 R. S. O. 1887, c. Go, 8. 32. 
 
 8. I n case an execution debtor .shall subsequent to the f 
 receipt of th e first exe cution by the sheriff and before the ' 
 t iiiie for distrdnition lias expn-ed have executed any mortgag e'or ■; 
 chattel mortgage or otherwise charged any portion of his Ij 
 estate, the giving of such mortgage or other security shall not 
 have the effect of preventing subsequent execution creditor s 
 or other creditors who shall have filed tlieir eliunis as re(| ii ire d 
 hy this Act from s liariiig in the distrib ution of the moneys 
 realized by the slieriU, or the shyriff from selling the interest 
 seized under the first execution, but in distributing the uionev s 
 so realized, the said .sheriff shall deduct and retain 
 fo r the person enti tled th ereto the ailioun t of any in- 
 cuinlSrance so cre ated p ro rata from tlie Tlmuiiiil "TTtTtr^li 
 
 woukt otlierwistrTje paya 
 i6L^ A", c. il,.s. 13. 
 
 jle to the said subsequenTcreditors. 
 
32. 
 
 Sec. 37 (1). 
 
 CREDITORS RELIKF ACT. 
 
 Chap. 78. 
 
 423 
 
 lilt. In case sevei-al cvcclitoi-s are interested in a contesta- DirectioiiH by 
 tion, either for or against the same, the Judge shall give such I„"nece8sarv"' 
 directions for saving the expense of an unneces.sary nuniher partipMaiul 
 of parties and trials, and of unnecessary proceedings, as may *""'"' 
 be just, and he shall direct by whom and in what proportions 
 any costs incurred in the contestation, or in any jiroceedings 
 thereunder, shall be paid ; and whether any and what costs 
 shall be paid out of the money levied. R. S. O. 18S7, c. 65, 
 s. 33. 
 
 :{4 
 
 -(1) The Judge may, if he sees fit, direct tb.e sheriff to i>'rectionby 
 
 levy for an amoinit sufficient to cover a claim which is in sheritfwhm- 
 dispute, or paj't thereof, or in case it appears to the Judge that j'''^'"'^ . 
 it is improbable that the defendant has other sufficient property, 
 he may order the sheriff to retain in his hands during the con- 
 testation the share which, if the claim is sustained, will ])e ap- 
 portionable to it, or may make an order combining the orders 
 above authorized, or such similar order as may be just. 
 
 (2) An order to levy under this section shall clothe the 
 sheriff with the same authority as he would possess under a 
 writ of execution, duly issued against the debtor, directing the 
 sheriff to levy the like amount out of the goods and lands 
 of the debtor. R. S. O. 1887, c. 05, s. 34. 
 
 li't. The decision under this Act of a County Court Ju^^ge.^^FJ^'??'' *°, 
 or a Divisional Court on an appeal, shall bind all ci'editors.Vfl creditors!" 
 unless it appears that the decision was obtained by fraud or* 
 collusion by the parties to tlie contestation. R. S. O. 1887, 
 c. 05, s. 35 ; 59 V. c. 18, Sched. (38). 
 
 4/^ tutjtjr*^ 
 
 36. In case a sheriff has money in his hands, which, by Sheriff to de- 
 reason of the provisions of this Act, or otherwise, he cannot f5°baiik?"^'l 
 immediately pay over to the execution creditors, or other V,„«^ 
 claimants under this Act, he shall deposit the money, whenever 
 the same amounts to SlOO, in some incorporated bank 
 designated for this purpose from time to time by order of the 
 Lieutenant-Governor in Council, or where there is no such 
 bank, then in some incorporated bank in which public money 
 of the Province is then being deposited : the deposit to be made 
 in the name of the sheriff, but to a special account in his 
 name as " Trustee for the creditors of " (the debtor). 
 
 R. S. O. 1887, c. 05, s. 36. 
 
 Ii7. — (1) Where there are in the sheriff's hands several Attaching 
 executions and claims, and there are not, or do not appear „i,eriff or 
 to be, sufficient lands or goods, as the case may be, to pay all creditors. 
 and his own fees, he niay apply for an order attachin <r any 
 debt owing to the executi on debto r by any person resident in 
 ^he coun tY. of ~s uch sheritt , wiieth er the debt is owing by 
 such person alone or jointly with another person resident or not 
 
424 
 
 Chap. 78. 
 
 ciiEnrroKs relief- act. 
 
 Sec. 37 (1 ,. 
 
 a 
 
 
 :Xi 
 
 
 ^ 
 
 
 c: 
 
 
 
 
 *' ' tS! 
 
 U f 
 
 ^►•■■' > llij 
 
 M 
 
 tC.'^. ; T iff] 
 
 r" : i 
 
 1 
 
 ^" Ti 
 
 t| 
 
 
 
 r: 
 
 •?1 
 
 Appeal . 
 
 Rev, Stat. 
 C.61. 
 
 resident in snch connty, and to procure tlie attachment the 
 ■sherirt' i nay__ take the same proceedings a.s a creditor : and in 
 such case a writ of execution, or other wi*it in the course of 
 tlie proceedinpfs, may lie directed to him in the same manner 
 as if the attachment were liy a creditor ; and the proceeds of 
 the del)ts attached sliall be distributed in the same manner as 
 if he had realized the .same under execution. 
 
 (2) In case the sherift'._dQes not take such proceeding s, any 
 ler.son e ntitled to disti'ibution may take the .same for the 
 
 bi 
 
 enetit ()f liimself antl all other persons e ntitled to distribu- 
 tion as^ aforesaid, and the person owing the attached debt 
 shall pay the .same to the sheriff'. 
 
 (3) Any judgment creditor who attaches a debt shall b e 
 deemecl to do so f or the b enefit of him.seif and all ci'editor s 
 entitled under tins AcT ; payment (^f such debt shall he made 
 to the sheritf, who in making disti-ibution shall apportion to 
 such judgment creditor a share 'pro rata, according to the 
 amount owing up(m his judgment, of the whole amount to Vje 
 distributed under the provisions of this Act, but sucli share 
 shall not exceed the amount recovered by the garnishee pro- 
 ceedings unless the judgment creditor has placed a writ in the 
 sheriff's hands. 
 
 (4) Money garnished and paid into the sheriff s hands shal l 
 be deemed to be money levied under executio n, within the 
 meaning of this Act, except that, unless the garnisliee proceed- 
 ings were taken by him, the sheriff .shall only be entitled to 
 charge poundage on such moneys at the rate of one and a 
 quarter per cent. 
 
 (5) The provisions of subsections 3 and 4 of this section shall 
 also apply, as nearly as may be, to any person who attaches a 
 debt in the Division Court before judgment, and to the money 
 so attached. 
 
 (6) In ( j,se a garnishee, untler an order of the Court, pays to 
 the attaching creditor, or in case a garnishee, without notice 
 that the sheriff is entitled, pays the amount of his debt into 
 Court and the same is paid out to the said creditor, the .sheriff 
 may recover from him the amount so received. R. S. 0. 1887, 
 c. 65, s. 37. 
 
 ;{8. If any party to any contestation, matter or thing upon 
 which a Judge has made or rendered any final order or judg- 
 ment, is di.ssatisfied with such order or judgment, and the 
 same is in respect to a question involving a sum g reater than 
 
 $100, he may a i2Peal therefram— ta_a Divisional Court of the 
 High_CouiJb, subject to the like practice, as nearly as may be, 
 as is from time to time in force in respect of appeals from a 
 County Court or Judge, unless and until Rules establishing a 
 different practice shall be made under the provisions of sec- 
 tions 125s and 125 of The Judicature, Act, which shall 
 apply to this Act. R. S. 0. 1887, c. 65, s. 38, part ; 59 V. c. 18, 
 Sched. (39). 
 
Sec 42. 
 
 CREDITORS RELIEF ACT. 
 
 Chap. 78. 
 
 425 
 
 my A Judge for the purpose of giving effect to this Act and Powers of 
 carrying out its provisions shall have all the powers which a 
 County Court or a Judge thereof has by law for other purpose.s ; 
 and any proceetlings wrongly taken under this Act may be 
 set aside by the Judge, with or without costs as he thinks 
 rit. R. S. O. 1887,c, 65, s. 40. 
 
 40. Nq proceeding under this A ct shall be void for any Defects of 
 detec t of form ; ami the Rules, for amending or otherwise cur- *"™" 
 mg irregularities or defects, which ma^ from time to time be 
 
 in force in the Chanty Courts shall apply to this Act. R. 8. O. 
 1887, c. 65. s. 41. 
 
 4 1 . Besides the fees otherwise authorized to be paid to the Scale of fees. 
 Clerk of the County Coui't for his own use, the following fees 
 
 shall be levied on the following proceedings under this Act 
 upon all claims tiled, where the amount of the claim exceeds 
 S200, and the same shall be payable to the Crown in stamps, 
 subject to the provisions of The Act respectimj Law Stamps : — c!^^5. 
 
 S cts. 
 On an affidavit of claim, where the amount claimed ex- 
 ceeds S200 but does not exceed .S400 . . ' 75 
 
 On every such affidavit where the claim exceeds $400. . 1 oO 
 On every certificate of clerk given under section 9, where 
 
 the claim exceeds §200, but does not exceed $400 . . 75 
 On every such certificate where the claim exceeds .S490. 1 50 
 On every order made by the Judge allowing oi" disallow- 
 ing a claim, where the claim exceeds S200, but does 
 
 not exceed 8400 50 
 
 On every such order whei'e the claim exceeds S400. . . 1 00 
 
 Where the claim is contested ; on the proceedings after the 
 order, the same fees as are now payable on like proceedings in 
 the High Court. R. S. O. 1887, c. 65, s. 42. 
 
 A'i. This Act is not intended to interfere with the Insolvency Act not toin- 
 Laws which may from time to time be in force in this Province, in^solvency 
 but this Act is intended to be subject to such laws, and_sub|ect Laws, 
 as aforesaid to apply to all debtors w hether solvent or no t. 
 R. S. 0. 1887, c. 65, s. 4y. ' 
 
 C 
 
 C, 
 
 il-. 
 
i' [iiftif'rriii',, vyjg: 
 
 426 
 
 Chap. 78. 
 
 CREDITORS RELIEF ACT. 
 
 Form A. 
 
 SCHEDULE. 
 
 
 
 
 FORM A. 
 
 {Section A sitfc.-jf. 2.) 
 Sheriff's Notice. 
 
 Notice is hereby given that I have, by virtue of certain executions 
 delivered to me against the goods and chattels imd lands and tenements 
 (or as tlie case maij he) of CD., levied and made out of the property of 
 the said C. D., the sum of S 
 
 And notice is further given that this notice is first posted in my office on 
 the hrst day of May, 18 , and that distribution of the said money will be 
 made amongst the creditors of the said C. D. entitled to share therein, at 
 the expiration of one month from the said first day of May. 
 
 Dated 1st May, 18 
 
 F. G., 
 
 Sheriff. 
 
 R. 8. 0. 1887, c. 65, Sched. Form A. 
 
 id \ 
 
 FORM B. 
 
 (Section 7, subs. 1.) 
 
 Affidavit of Claim. 
 
 The Creditors' Relief Act. 
 
 In the County Court of the County of [state 
 
 coiintij or united comities in which it is intended proceedings shall be 
 taken], 
 
 A. B Claimant, 
 
 vs. 
 C. D Debtor. 
 
 I, A. B., oi in the county of 
 
 Merchant (or as the case may be) make oath and say : — 
 
 1. I am the above named claimant (or the duly authorized agent of the 
 claimant in this behalf, and have a personal knowledge of the matter 
 hereinafter deposed to). 
 
 2. The above named debtor is justly and truly indebted to me (or to the 
 above named oUimant) in the sum of 8 for [here state 
 shortlij the ii cure and particulars of the claim as they are required to be 
 stated upon a specially endorsed lorit]. 
 
 Sworn before me at ) 
 
 this day of > 
 
 A. D. 18 ) 
 
 R. S. 0. 1887, c. Go, Schcd. Form B. 
 
Form D. 
 
 CREDITORS RELIEF ACT. 
 
 Chap. 78. 
 
 427 
 
 FORM C. 
 
 {Section 7. snb-a. 2.) 
 Notice to b^ Served with Claim. 
 The Creditoks' Relief Act. 
 In the County Court of the County of 
 
 A. B Claimant, 
 
 CD.. Debtor. 
 
 T(j the above {nr within) named debtor. 
 
 Take notice that the claimant intends to file with the clerk of the 
 Cuunty Court of {uv as the case may he) 
 
 the oritjinal affidavit of claim of which a duplicate is served herewith, and 
 that this proceeding is taken by reason of there being in the hands of the 
 sheriff of the said county {or united counties) a writ of execution against 
 your goods and chattels and lands and tenements (oc as the case may he), 
 and that the claimant intends to call on the sherifl" to levy the amount of 
 the said debt from your property under the authority of The Creditors' 
 lidief Act. 
 
 And further, take notice that in case you desire to contest the said 
 claim, or any part thereof, you must, within ten days after the service of 
 this notice upon you, file with the clerk of the said Court an affidavit 
 stilting that you have a good defence to the said claim on the merits, or 
 that you have such defence to a specified part of the claim, otherwise such 
 claim will be treated as admitted by you, or may be so treated as to the 
 part not contested. 
 
 You are further hereby notified that unless you endorse upon such 
 affidavit filed by you a statement of some place in, or within three miles 
 of the county town of the said county (or united counties) at which service 
 may be made upon you, or the address of some solicitor in the Province 
 of Ontario who may be served on your behalf, service may be made upon 
 you of any notice, paper, or document requiring service, bj' mailing the 
 same enclosed in an envelope addressed to you at the said county town. 
 
 Note. — In case the above notice is endorsed iiiion the copy of the affidavit served, 
 the heading of the notice may be omitted. Where further tune is given by a Judge, 
 the notice should be varied accordingly. 
 
 R. S. 0. 1887, c. 65, Sched. Form C. 
 
 FORM D. 
 
 {Sectioii, 8, subs. 4.) 
 Affidavit of Service of Claim. 
 The Creditors' Relief Act. 
 In the County Court of the County of 
 
 A. B Claimant, 
 
 vs. 
 C D Debtor. 
 
 in the county of 
 
 make 
 
 I, O. //., of 
 oath and say : — 
 
 1. That I did, on the day of personally serve 
 
 C D., the above named debtor, with an original affidavit identical with 
 the annexed affidavit, and that there was at the time the said affidavit was 
 so .served, attached to {or endorsed upon) the said affidavit so served a true 
 copy of the notice addressed to the debtor, now attached to (or endorsed 
 upon) the said annexed affidavit. 
 
 Sworn before me at 
 this day of 
 
 A. D. 18 
 
 R. S, 0.1887, c. 65, Sched. Form D. 
 
 } 
 
428 
 
 2 
 
 Vi 
 
 Chap. 78. creditors' relief act 
 
 FORM E. 
 
 (Section 9, subs, 1 and section 15.) 
 Certificate of Peoof of Claim. 
 The Creditors' Relief Act. 
 In the County Court of the County of 
 
 A. B Claimant, 
 
 Form E. 
 
 CD *. Debtor. 
 
 I, clerk of the County Court of the 
 
 County of , do hereby certify that the above 
 
 named claimant did on the day of 
 
 tile with me a claim against the above named debtor, fox the sum of 
 together with an affidavit of personal service thereof (or 
 as the case may require) and of the notice required by The Creditors' Relief 
 Act, upon the said debtor, and that it thereby appears that such service 
 was made upon the said debtor on the day of 
 
 18 
 
 And I further certify that the debtor has not contested the said claim (or, 
 has only contested the sum of portion of the said claim, 
 
 or as the case may be)., and tliat the claimant is entitled to the sum of 
 
 against the said debtor and the further 
 sum of for costs. 
 
 R. S. O. 1887, c. 65, Sched. Form E. 
 
 FORM F. 
 
 r: 
 
 {Section 30.) 
 Sheriff'.s Statement of Executions on Hand Against C. D. 
 
 
 
 
 
 ■ta 
 
 "2 
 
 
 
 
 
 
 C? 
 
 > 
 
 >. 
 
 Cause. 
 
 C 
 
 
 
 p'u 
 
 ^ 
 
 > 
 
 
 ^ 
 
 Claim V 
 Costs 
 
 1 
 
 6 
 
 072 
 
 1^ 
 
 a 
 
 a 
 
 o 
 
 1 
 
 8 
 
 o 
 
 a 
 
 
 
 s 
 
 s 
 
 
 
 
 Fi. fa. goods 
 
 
 
 
 
 
 A. B.V.C.V.... 
 
 and lands . . 
 
 504 
 
 30 
 
 18th Feb., 1886 . . 
 
 500 
 
 Ist May, 1886. 
 
 F. G. V. C. 1). &\ 
 E. G. 1 
 
 Fi. fa. goods 
 
 
 
 
 
 
 and lands . . 
 
 400 
 
 20 
 
 Isl March, 1880... 
 
 300 
 
 3rd May, 1886. 
 
 
 
 
 
 
 
 Nothing made 
 
 
 
 
 
 
 
 against E. G. 
 
 
 Garnishee or- 
 
 
 
 
 
 
 K. L. V. CD.... 
 
 der 
 
 Creditor's Cer- 
 
 500 
 
 30 
 
 
 300 
 
 10th May, 1886. 
 
 
 
 M. N. r. C. D . . . . 
 
 tificate 
 
 400 
 
 5 
 
 15,1; May, 1886. 
 
 
 
 R. S. 0. 1887, c. 65, Sched. Form F. 
 
Form G. CREDiroRs' belief act. Chap. 78. 
 
 FORM G. 
 
 {Sectioii 32, subs. 5.) 
 Contestation of Scheme of Distribution. 
 The Creditors' Relief Act. 
 In the County Court of the County of 
 
 A. B Claimant, 
 
 vs. 
 G. D Debtor. 
 
 To F. G. and M. N., claimants of moneys levied by the Sheriff of the 
 County of out of the estate of C. D. 
 
 Take notice that I will on the day of 
 
 next, apply to the Judge of the County Court of 
 the County of at his chambers at the court house 
 
 in the town of for an order adjudicating upon the 
 
 right of you the said to rank upon the said 
 
 moneys for any amount whatever (or an the case nmy be); and further take 
 notice that I will, upon the said application, read the affidavits of E. F. 
 and X. Y. , filed with the clerk of the said Court. 
 
 T^of Oil *^tc 
 
 R S. 0. 1887, c 65, Sched. Form G. 
 
 429 
 
430 
 
 CREDITORS RELIEF ACT. 
 
 NOTES. 
 
 a. 
 
 r: 
 
 i 
 
 
 Application of Act :-'riiu Act ai)))li<'s to all moneys receivoil by a slierifl'iu 
 his ofliuiiil tiiiincity, Young v. Ward (18!)(i) 27 O.K. o88. It is not to he ex- 
 tt'iided to cases not actually provided for liy the Act, and therefore the a])- 
 l)ointnient of a Receiver may he made for the benefit of the phiintifl' alone, 
 McLean v. Allen (1800) 14 f". R. 84, and sucli is now tlie practice. Executions 
 subse(|uent to a mortgage by the del)tor l)cfore the Act of 1899 attached only 
 upon the c(iuity of redemption left in the debtor, and were not entitled to 
 share ratably with prior executions. Roach v. McLachlan (1892) 19 A. R. 49(i. 
 Ff th(! del)tor disposes of the goods absolutely, executions which come in after 
 the sale do not share with prior executions, Breithaupt v. Marr (189.S) 20 A.R. 
 089. A cliattel mortgagee, whose mortgage .so intervenes between executions, 
 may pay off the prior executions, the holders of wliich will thus receive their 
 claims in full, Davies Brewing & Malting Co. v. Smith (1883) lOP.R. 627. Sec 
 as to debtor paying off without .sale by sheriff, s. 20. 
 
 Payment by debtor. A debtor cannot pay off a specific execution, .so as to 
 retire the same from the sheriffs hands, if there are other executions. Money 
 so received by the sheriff is distributable among all the execution creditors, 
 Young V. Ward (1890) 27 O.R. 588. 
 
 Partnership creditors. The Act does not alter the legal effect of executions, 
 nor give to firm or .separate creditors of partners an^- different rights, McDonagh 
 V. Jephson (1889) 16 A.R. 107. 
 
 Interpleader. Only those perons who are parties to or whose rights are 
 secured by an interpleader order are entitled to share in the benefits, Reid v, 
 Gowans (1886) 13 A.R. ,501 ; Bank of Hamilton v. Durrell (1888) 15 A.R. 500; 
 but where the claimant abandons before delivery of any issue, creditors whose 
 executions are subsetpient to the interpleader order are entitled to participate, 
 Wait V. Sager (1891) 14 P.R. 347. 
 
 Rights of creditors without oxeoution. There is no power to stay distribu- 
 tion by a sheriff until a judgment is recovered by a creditor, or to preserve the 
 prioi-ity of a judgment which has been set aside in case the latter shall be 
 restored on appeal. Mason v. Cooper (1893) 15 P.R. 418. A creditor who does 
 not come in within the period prescribed is nevertheless a "(;reditor interested" 
 within s. 10, and is entitled to contest the claims of other creditors. Bank of 
 Hamilton v. Aitken (1893) 20 A.R. 016. 
 
 Mortgage actions. A surplus after sale in a mortgage action, to which execu- 
 tion creditors are entitled nnist be paid to the sheriff' and distributed ratably, 
 Harvey v. McNeil (1888) 12 P.R. 362, and a surplus paid into Court by a mort- 
 gagee after a .sale under the ])owers of a mortgage will be siniiliarly dealt with, 
 ReBokstal (1896) 17 J'.R. 201. 
 
 Fraudulent conveyances. An action by an erecution creditor to set aside a 
 fraudulent conveyance must be brought ni the High Court if the executions in 
 the sheriff's hands exceed .$200, Dominion Bank v. Heffe.-nan (1886) 11 P.R. 
 .504. 
 
 Contestations. On a contestation by a creditor of another creditor's claim, 
 Didy the hoim ^fidcK of the claim can be considered. Otlier <lefence8 which the 
 del)tor may have cannot be rai.sed e.g. that the debt is not due, Bowerman v. 
 Philli|)s (1888) 15 A.R. 679. Judgments which have been recovered cannot 1)0 
 contested under the Act. An action to set them aside if frawlulent is neces- 
 sary, ib. 
 
 Entries. Under s. 4 the sheriff must "forthwith" enter notice thereof. 
 This means " without any delay " and where a sheriff delayed 15 days, and 
 other claims in conse(]UiMice came in the first execution creditor reoovered 
 damages from the sheriff', .Maxwell v. Scarfe (1889) 18 O.R. 529. 
 
 Oamishment. Section .37 entith's the slici'iff' only to an attaching order 
 when thcic are several executions and claims, and not sufficient lands or goods 
 to pay all and his own fees, and wiien there is a debt owing to the oxecution 
 (Ifbtiir by a person resident in his l)ailiwick. Re Thompson (1896) 17 P.R. 
 109. If prior to the levy and entry by the sheriff under tiie Act a creditor has 
 
CREDITOU.S RELIEF ACT. 
 
 481 
 
 gai'iiished a <k'l)t (Iul-, and lia.s recovered the same, neither tlie slieriff nor any 
 otlier creditor woidd have any ligiit to any \iait tliereof, Traders' Hank v. 
 MeL'onneli (1888) 24 C.L.J. 87. And it may lie that a mere at taehing order 
 iiM will have the same etl'ect, and that the section is eontined to creditors hav- 
 ing executions and claims in the sheritl's hands at the lime of the attachment of 
 the debt, sec Re Tlionipson (18!W) 17 P.R. Klit. Hicknell & Seager I). C. Act, 
 Vol. 1, pj). -280, -281. 
 
 Absconding debtors. If goods are seized and sold under the Alisconding 
 l»el)tors Act, tlio Creditors Relief Act had no application to the distiihution of 
 proceeds prior to the revision of 1887, Mactie v. Pearson (188.J) 8 O.R. 74/). It 
 would a|)pear now that all executions and claims under the Creditors' Relief 
 Act sliare ratably under s. 18 of the Absconding Debtor.s Act, anil .such is the 
 practice. 
 
 Division Courts. The Act applies to an execution against lands i.ssued from 
 a Division Court, Young v. Ward (18!)(i) 27 O.R. o88. 
 
 Under s. 25 it i.s the duty of the Division Court IJailiU'to deliver tlic good.s 
 forthwith, i.e., without any delay, to the sherifl'upon demand, and he will not 
 be entitled to recover any costs after that time, see Re I' 'rri.son. Ex parte 
 Sherittof Ks.sex (18i);{) 2 ().K 111 ; Re Thomas, Kx parte Shtritf of Middlesex 
 (1899) 1 Q.B. 66, (1890) 1 (,>.H. 460. 
 
 
CHAPTER 145. 
 
 An Act to amend the Mercantile Law. 
 
 a 
 
 TO 
 C 
 
 r 
 c/ 
 
 IS 
 
 C 
 
 5^ 
 
 Short title, s. 1. 
 
 SURETI'5» : 
 
 Paying principal's debt to be 
 entitled to securities, reme- 
 dies, etc., of the creditor, ss. 
 2,3. 
 
 Rights, inter ne, b. 4. 
 
 BlhLH OF LADING : 
 
 Rights, under, transferable by en- 
 dorsement, s. 5 (1, 2). 
 
 Conclusive a.s against the signer, 
 8. 6 (3). 
 
 WaREHOU.se receipts, etc. , AS COL- 
 LATERAL SECURITY, 88. 6-20. 
 
 Short title. 
 
 HER MAJESTY, by and with the advice and con.sent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 1. This Act may be cited as " The Mercantile Amendment 
 Act." R. S. O. 1887, c. 122, s. 1. 
 
 I 
 
 ment. 
 
 Right of sure- 3. Every person who, being sui'et y for the debt o r duty of 
 ties paying the g^jjQjjjjgj. qj. being liab le with another for any debt or duty, 
 etc., to assign- [ mys the debt or performs the duty , s hall be entitled to have 
 * assigned to him or a tru.stee for him, every iudpfment, specialt y, 
 
 or other security which is held by the creditor in respect of 
 such debt or duty, whether such judgment, specialty or other 
 security be or be not deemed at law to have been satisfied by 
 the payment of the debt or the performance of the duty. 
 R. S. O. 1887. c. 122, s. 2. 
 
 And to reme- 
 dies on such 
 
 assignment. 
 
 Wliat only 
 one co-surety, 
 etc., may re- 
 cover from 
 another. 
 
 3. Such person shall be entitled to stand in the place of 
 the crecIitoi:^ and to use all the remedies, and, if need be, and 
 on proper indemnity, to use the name of the credito r in any 
 action or other proceeding in order to obtain Irom the 
 principal debtor, or any co-surety, co-contractor or co-debtor, 
 as the case may be, indemnification for the advances made 
 and loss sustained by the person who has so paid such debt 
 or performed such duty ; and such payment or performance 
 so made by such surety shall not be a defence to such action 
 or other proceeding by him. R. S. 0. 1887, c, 122, s. 3. 
 
 4. No co-surety, co-contractor or co-debtor shall be entitled 
 to recover from any other co-surety, co-contractor or co-debtor, 
 by the means aforesaid, more than the just piopnrtion ^.o which. 
 as between those partie.-. themselves, such last mentioned perr.on 
 is justly liable. R. S. 0. 1887, c. 122, s. 4. 
 
 L432] 
 
Chap. 145. MKRCANTILE AMENDMENT ACT. 
 
 Sec. 5. 
 
 438 
 
 BILLS OF LADING. 
 
 a 
 
 v// 
 
 Rights and 
 liabilities of 
 conHif^neesand 
 endorBees of 
 bills of lading 
 Imp. Act, 18- 
 l!i V. c. 111. ^ 
 
 5. Whereas by the custom of merchants a bill of lading of Preamble, 
 goods being transferable b y endorsement , the property in the 
 goods may thereby pass to the endorsee, but nevertheless all 
 rights in respect of the contract contained in the bill of lading 
 contim in the oiiginal shipper or owner, and it is expe^dT^t 
 that such right."- should pass with the property ; and whereas 
 it frequently happens that the goods in respect of whicli bills 
 of lading purpoi t to be signed have not been laden on board, 
 and it is proper that such bills ot lading in the hands of a bona 
 fide holder for value should not be questioned by the master or 
 other person signing the same, on the ground of the goods not 
 having been laden as aforesaid ; 
 
 Therefore it is enacted as follows ; 
 
 1. Every consignee of goods named in a bill of lading and 
 every endorsee _p f a bill of lading to whom the property in the 
 goods therein mentioned passes upon or by reason of such 
 consignment or pndnrsfinient shall have trnnsfoi Ted to, and 
 vested in him all rights of action, and be subject to the .sam e 
 liabilities in respect of the goods as if the contract contained 
 in the bill of lading had been made to himself. 
 
 2. yothing in this section contained shall prejudice or effe ct Certain rights 
 any right of sto]jpage tri/ transit lo , or any right to claim fi-eigh t not atfectedr 
 against the original shipper or owner, or any liability of the 
 consignee or endorsee, by reason or in consequence of his being 
 
 such consignee or endorsee, or of his receipt of the goods by 
 reason or in consequence of such consignment or endorsement. 
 
 3. Every bill of lading in the hands of a consignee or en- Bilit. of lading 
 donsee for valuable consideration representing goods to have *^ evidence 
 been shipped on board a vessel or train shall be connlnsive f.vi - 
 dence of the sTii pment a s against the master or other person 
 signing the same, notwithstanding that the goods or some part 
 thereof may not have been so shipped, unless the holder ot th e 
 bill of lading has actual notice at the time of receiving the .same 
 that the goods had not in fact been laden on board, or unless 
 the biTTof lading has a stipulation to the contrary ; but the 
 master or other iper.son so signing, may exonerate himself in 
 respect to such misrepresentation, by shewing that it was 
 caused without any default on his part, and wholly by the 
 fraud of the shipper, or of the holder, or of .some person under 
 whom the holder claims. R.S.O. 1887, c. 122, s. 5. 
 
 
 •^1 
 
 >'»ainBt Higner. 
 
 WAREHOUSE RECEII'T.S, ETC., AS COLLATERAL SECURITY. 
 
 6. The words " goods, wares and merchandis e " when used Tnterpreta- 
 in the following sections of this Act, shall, exce|5t where, other- "Goods 
 wise expressly provided in .^aid sections, be hela to comprise, is wares and 
 additior tothe things usually understood there py, timber, board s 
 deals, staves an d oth er lumber. R.S.O. 1887, c. 122, s. 14: 
 " cT 
 
 Rierchandise." 
 
 *^\ 
 
r 
 
 434 
 
 Sec. 9. 
 
 MERCANTILE AMENDMENT ACT. Chap. 145. 
 
 i 
 
 a. 
 
 r' 
 
 S 
 
 5C1 
 
 i'l 
 
 Cdvo iccciptH, 
 t'tc, may 1m) 
 tr.-viisfj'iruil by 
 enddi'seiiifiit 
 OH collati'ial 
 et'curity. 
 
 And may ci'll 
 thi' giiixlK if 
 «ucl) bills arc 
 not dtily iiaid, 
 retiu-ning sur- 
 pluii, etc. 
 
 \. Any cove i'ecei))t , liill of ladinff , specification of timber 
 or any receipt ^nven by a cove keeper, miller, or by the keep er 
 of a warehouse, wlia rf, yard , harbour or other i)lace, for cerea l 
 grains, aoo'ls, wares or merchandise la i d up , stored or deposited, 
 or to be laid up, store<l or deposited \\\ or on the cove, mill, 
 wareliouse, wharf, yard, harbour or other place in this Pr(jvince, 
 of which he is keeper, or any bill of hiding or receipt ^aven by 
 a master of a vesse l, or by a carrier for carrying eereid grains^ 
 gooiis, wares or merchandise ship ped in such vessel or (lelivered 
 to such earner tor carnage irom any place wiiatever , to any 
 ])art of this Province or through the same, or on tlie waters 
 borderiiif^ thereon, or from the same to any other place what- 
 ever, and whether such cereal grains are to be delivered upon 
 such receipt in specie or converted into flour, may, by en - 
 (Wsp])^ft"^. flipiffi on by the owner ^ of. or person entitled to 
 receive such cereal {j-rains . goods, wares or merchandise, or his 
 attorne)^ or agent , be transferred to any piivatt^ P'^'lf? " ^^ 
 collateriu security for any debt due to sucli private peison, and 
 being so endorsed shall vest in such private person from the 
 tlate of the endorsement, all ttie right and title of the endorser 
 to or in such cereal grains, goods, wares or merchandise, 
 subject to the right of the endorser to have the same re- 
 transferred to him, if the debt is paid when due ; and in 
 the event of the non-payment of the debt wdieii due, such 
 private person may sell the said cereal grains, goods, wares or 
 merchandise and retain the pi'oceeds or so much thereof as will 
 be equal to the amount due to the private })erson upon the 
 debt, with any interest or costs, returning the overplus, if any 
 to the endorser. R. S. O. 1887, c. 122, s. 1.5. 
 
 8. Where a person engaged in the calling of cove-keeper, 
 miller, or of keeper o)' any warehouse, wharf, yard, harbour or 
 other ])lace, master of a vessel or carrier, by whom a i-eceipt or 
 bill of lading may be given in such hin capacity, as hereinbefore 
 mentioned, for cereal grains, goods, wares or merchandise, is at 
 the same time the owner of or entitled himself (otherwise than 
 in his capacity of cove-keeper, miller, or of keeper of a ware- 
 house, wharf, yard, harbour or other place, or of master of a 
 vessel or carrier) to receive such cereal grains, goods, wares or 
 merchandise, any such receipt or bill of lading , or any acknow- 
 ledgment or cei'tificate intended to answer the purpose of such 
 receipt or bill of lading, given and endorsed by such person, 
 8hallJifi-asMyUid.and effectual for the purposes of this Act, as if 
 tlieperson giving such receipt or bill of lading acknowledgmen t 
 or certificate, and endorsing t he same, were not one and tfie. 
 same per son. K. !S. O. 1887Vc. 122, s. 16. 
 
 . Goods, except 9. No such ccrcal grains, and no such goods, wares or mer- 
 timber, etc., chandise (other than timber, boards, deals, staves or other lum 
 o e e ^^^.^^ shall be held injpledge by such private person for any period 
 exceeding six months; and n^Jjianaf er of such bill of lading, 
 specification of timber or receipt, shall be made under this Aci 
 
 Cove-kee()er, 
 etc., owning 
 or being enti- 
 tled to the 
 goods, may, 
 notwithiitand' 
 ing, give a 
 receipt, etc., 
 and en- 
 dorse it. 
 
 beyond six 
 months. 
 
Chap. 145. 
 
 MERCANTILE AMENDMKNT ACT. 
 
 Sec. 0. 
 
 435 
 
 :o .secure the payment of any debt, unless tho debt Ls contracto tl Debt to be 
 i t the .same tune with the endorsfnient ot the bill of liuliu^r tTnle of'titn*- 
 jpecitication of timber or iecei))t : and further, no sale of any fiTof bin. 
 zerearirfains or of eoods. wares or nierchundise. fother than / 
 
 to 
 af 
 
 s 
 
 cereaT^fains or of goods, wares or nierchundise, (other than 
 
 timber, boards, deals, staves or other lumber,) shall take place 
 under this Act until and unless ten days notice of the time and {'''!"}", ".'A*" 
 place of the .sale has been i,dven by registered letter trans- notice to' the" 
 mitted through the post office, to the owner of such cereal "wner, 
 grains or such goods, wares or merchandise other than as afore- 
 said prior to the sale thereof. R. S. O. 1887, c. 122, s. 17. 
 
 etc., 
 )e held 
 twelve 
 , etc. 
 
 / 
 
 1 0. — (1) No timber, boards, deals, staves oi- other lumber, shall Timber 
 be held in pledge by such private person, for any period exceed- !",'Vi' 
 ing twelve months ; and no transfer of any such receipt monthi 
 or bill of lading .shall be made under this Act to secure the pay- 
 ment of any debt, unless the debt is contracted at the same 
 time with the endorsement of the receipt or bill of lading ; and 
 further, no sale of any timber, boards, deals, staves or other 
 lumber, shall be made under this Act, until and unless thirty 
 days' notice of the time and place of such sale has been given, 
 by registered letter transmitted through the post office, tt the 
 owner of the timber, boards, deals, staves, or other lumber 
 prior to the sale thereof. 
 
 (2) Every such sale shall be made by public auction, after Sale to be by ^ 
 notice thereof by advertisement, stating the time and place n"tr""*^**'^r 
 thereof, for at least eight days consecutively, in at least two 
 
 daily newspapers published in or nearest to the place where 
 such sale is to be made. 
 
 (3) A daily newspaper shall be deemed to be published 
 nearest to a place if no two other daily newspapers are pub- 
 lished in or nearer to such place. 
 
 (4) If in any place where any such sale by auction is to be in pbces 
 made, there is not a newspaper published daily, but some ^^'"'''"""^^'y 
 
 • '■ "■ 1 !• 1 1 ii 1 PL newsp.aper IS 
 
 newspaper or newspapers is or are published there less often published. 
 
 than daily, then the advertisement shall also be published in 
 
 every issue of such local new.spaper, or of at least one of such 
 
 local newspapers, during the time of its being published in daily ' 
 
 newspapers. R. S. O. 1887, c. 122, s. 18. 
 
 1 1 . All advances made on the security of any such cov e Advance on 
 i;eceipt,~bill ot lading. sv)eciHcation, receipt. acknowled'rment~br <=ove receipts, 
 certificate as aforesaid, s liall give and be held to give to the fiJii'on tunber, 
 person making the advances, a claim tor the repayment ot su ch «*<-:. i "''<>.'' to 
 advance s on the cereal grains, goods, wares or merchandise ve*ld<?r"or 
 therein mentioned, prior to and by preference over the claim of creditors. 
 any unpaid vendor, or other creditor, save and except claims 
 for wages of labour performed in making and tra nsporting 
 such timlj er, boards, d eals, staves or other lumber. RTSTO. 
 1887, c. 122, s. 19. 
 
436 
 
 Sec. 12. 
 
 MERCANTILE AMENDMENT ACT. Chap. 145. 
 
 r.' 
 
 TranHfiT of 
 wareh< <ii8h 
 receiptH for 
 crude 
 petrolfum 
 WBUed by 
 incorporated 
 companieB. 
 
 1 *i. All_ transportation and warehcmae rfineip ts, accepted 
 orders and certificates for cnide_peti;oleuni, issued Ity any com- 
 pany heretofore, or which may, at any time hereafter, be incor- 
 porated under competent authority, and authorized to carry- 
 on the Vmsiness of warehousing, shall be transferable by 
 endorsement, either special or in blank, and upon being 
 eiidorsed in blank shall become transferable by delivery, 
 and every such endorsement or transfer by delivery shall 
 transfer all right of property and possession of the petroleum 
 mentioned in any such transportation or warehouse receipt, 
 accepted order or certificate, to the endorsee or transferee 
 thereof, subject to the terms and conditions of such trans- 
 portation or warehouse receipt, accepted order or certificate, 
 as fully and completely as if a sale of the petroleum mentioned 
 therein had been made in the ordinary way; and on the 
 delivery of any petroleum mentioned in such document, 
 by such company, in good faith, to a person in possession 
 of such transportation or warehouse receipt, accepted 
 order or certificate, endorsed or transferred as aforesaid, the 
 company shall be freed from all further liability in respect 
 thereof, and the endorsee, or transferee or holder of every 
 such transportation or warehouse receipt, accepted order or 
 certificate, to whom the property in the petroleum mentioned 
 therein passes by reason of such endorsement or delivery, 
 shall have transferred to and vested in him all rights of action 
 and be subject to the same liabilities in respect of such petro- 
 leum as if the contract contained in the transportation or 
 warehouse receipt, accepted order or certificate had been made 
 by the company with himself. R. S. 0. 1887, c. 122, s. 20. 
 
MERCANTILE AMENDMENT ACT 
 
 437 
 
 NOTES. 
 
 Right of Surety, &c. to Assignment- S.s. -2, ;{ and 4 are Hiiiiilar in toiiiiM to 
 ImiKiial Stiituti: I!) ^t -.'O V. «•. !I7, h. ."). 
 
 Who are Sureties. Tliuie are tlireo cIuhsl-s of suretyship ; 
 
 (a) WJieri- thoro is an agrccnient Ijetwoun oreditoi', ilo l)tc)r, anil Huroty . 
 
 (b) VViiure tlio agrcenii'nt in l)ul\vcen ])pnici|>al and surety only e.g. i)oth 
 being principal debtors to the 8iui«y. 
 
 (c) Wlierc there is no agreeiuent/f)Ut then; is a priniarj' and secondary 
 lialiility of two persons foiv/Ine and the same delit, e.g. the relation- 
 ship between tlie niakeiv*»fid endorser of a note. 
 
 Oeneral Right to BecuritleB. /vVitb rejjard to the first class the sinety is e n- 
 titled fi'oi iithebe^ini iing to the lii'netit of all .seeurities taken at the time ii f 
 tlie ■surety'slnp or Hul)sei|iientlv . Mewtoii v. (!liorltoii ( IH.VJ) I(J ltaie(i(iti ; Lake 
 v! Hriitton {\H"u) HI). .M. kTi. 441 ; Pledge v. Hii.ss (lH.-)<J).John.s. ti();i ; Forbe-s 
 V. Jackson (KSHli) 1!) Cli. I). (11 o, and tiie creditor nnist not exercise any other 
 legal riglit to wiiicli he may become entitled against any of the property cmn- 
 prised in the security. I'earl v. Deacon (ISol) 24 Beav. ISO, 1 l)e. (1. &.'l. 4()l; 
 even 1)V a|)propriating j)ayments ; Kiniiard v. Webster (IS7S) 10 t'h. I), l.'t!) 
 and if he does the siu'ctv will l)e discharged to tiie extent of the security. 
 Taylor v. Bank of New South Wales (18S()) 1 1 App. Cas. oOO. If thiough any 
 neglect on the part of the creditoi', a security, to the benefit of whicli a surety 
 is entitled is lost, or is not properly perfected, the surety is discharge<l to tiio 
 value thereof, fStrange v. Fooks (1803) 4 (liff. 408; and where the creditor 
 neglected to register a chattel mortgage for the debt and tiie same thereby 
 became void as against a trustee in bankruptcy the surety was discharged. 
 VV^iIff V. Jay (1872) L.R. 7 Q.B. 7o6. 
 
 In tiie second chuss , botli the jirincipal anil surety are, as reg ards I he credito r, 
 principal ilebto r.s.Jju t ujion tTie creditor rec eiving norifC flf the claim of I' 
 surety to the ri glits oTti surety, lie wi ll not be at liberty to iT 
 tlioir prejudice or to refuse (wlieii all liis own just claims are sati 
 
 • prein 
 rtoTIi 
 
 le 
 
 aiivtiiinj.' to 
 
 I 'leil') to ^n-e 
 
 t^ctl b"tlierii: Uavics v. Stambank (IH.")'l{ I). SV. kli. Hl)4 ; Hippins v . 
 
 Harrison (18'2o) 2 (Uyn <fe Jamiesoii (53 ; Overeiid tUirney & (Jo. v. Oriental 
 Financial Corporation (1874) L.U. 7 H.L. 348 ; Duncan Fox &Ci). v. North and 
 South Wales Bank (1880) (5 A]>p. Cas. 11 ; Rouse v. Bradford Banking Cor- 
 poration (1894) 2 Ch. 32, 50 ; (1894) A.C. 580. 
 
 During the currency of a l^j Ul. endorsers are not sureties or in tlie nature of 
 sureties to the indorsee, and they have no equity to prevent tlie indorsee from 
 dealing as it may seem to him most desirable, with any other parties, unless 
 thereby ho prevents himself from giving notice of disfionour ; but after dis - 
 honour and notice of dishonour they are en tit led to the benefit of all jiayniciit s 
 made tiy the acceptor , anil on payiiit; the lioli ler, to all securities held liy lim i 
 agai nst prior parties fiiTlhe payment of tlie bill. Inincan i'ox iK Co. v. ^iorth 
 fi'^outh Wales Bank (1880) (i App. Cas.T — See Trerico v. Burkett (1882) 1 
 O.R. 80. 
 
 Satisfied Securities. Prior to the enactment of ss. 2, 3 and 4 (26 Vict. c. 4o s. 4) 
 a surety who paid off a bond or judgment upon which both he and his principal 
 were liable couhl not require the creditor to assign the same and an assign- 
 ment to him or a trustee for him was ineffectual because bj' the act of payment 
 the obligation was satisfieil. The Act confers on the surety a right which ho 
 did not have before ; Do Wolf v. Lindsell (1868) L.R. 5 Eq. 209. 
 
 When right accrues. The creditor must f irst be p aid in full ; Ewart v. Latla 
 
 (l8i5o]'rMacTi. H. L,5ij5: ^-^ ' 
 
 How apforfi'^d- An assignment by the creditor cannot bo compelled by 
 motion. Phillips v. Dick.son (1860) 8 C. B. N. S. 391 ; but an action by th e 
 siirety may be maintained -ib. 
 
 Enforcing Judgments. An execution issued in the name of the creditor by 
 one or two contractors who had paid a judgment against both without the con- 
 
I 
 
 7/: 
 
 
 J 
 
 » 
 
 I 
 
 438 MERCANTILE AMENDMENT ACT. 
 
 Ht'iit of llu- (creditor and witliDUt iiii iiMsijjtniiiciit of the jmlfjinont wrn set aHido. 
 I'ottH V. LniMk (IH7r>) :<(> U. ('. K. 47(i Imt in |{( McMvii Linlitttonrii v, McMyii 
 (IHHIh Il.'l ell. I). .">7") II Murcty wlio Imil jmid ii judKinfiit wn.s witliout iiMxigii- 
 nu'iit lii'ld til lie ciititlt'd ill adiiiiiiiNti'iitioii iiroci'cdingH to Htimd in tlii' pliico of 
 tlif jiidgini-nt crt'diloi- in priority to uiiMccurod iTfilitoiH of a duccuHud co- 
 Hurcty. 
 
 Partners. Tin- proviHionH of tlio Statuti' wcro not iiitciidt'd to finliruce tho 
 casu of partners ho as to enalile one ))artiuM' witliout ri'feri-nri' to tlio Htatt- of 
 the partiifrsliip ac'coiintH to I'lifoi'L't' payment tiy liis paitiuT of oiio lialf of a 
 parlnt'r.iliip dclit paid liy liini. .Scripture v. (iordon (1H77) 7 1'. K. l<>4. 
 
 Extent of sureties rights. Where a en!<litor lian proveil against tho estate 
 of one of the sureties for the full ilelit and the other suri'ties suhsecpiently pay 
 the delit, they are entitled to ail the remedies wiiieh tlu ereditor had for the 
 recovery of tho dolit, and arc therefore entitled to tlio dividend upon tho 
 whole elaiiii not exceeding the proper share for which their co-surety was 
 liuhle ; Re I'arker, Morgan v. Hill (1S94) ;{ Ch. 4W and may exercise tho credi- 
 tors' rights ; (Ireeiiwood v. P'rancis (181)9) 1 Q. B. 312. 
 
 Costs. The surety is entitled to receive from the debtor tho amimnt of the 
 juilgment including costs. HarjMjr v. Culbert (1883)5 (). R. liVi ; Victoria 
 Mutual V. Ficel (1883) 10 P. R. 4o. 
 
 Right Of Distress not a Security. The right of distrusa for rent is not a 
 seciirity, it is a particular remedy which arises on non-payment. The 
 remedies which a surety is, under the statute, entitled to use are confined to 
 proceedings in actions in wliicii, hut for tho Statute tho pavment might 
 have been iileaded ; Re Russell, Russell v. ShooU.rod (188.-)) 2i» Oh. 1). -254. 
 
 Valuing securities. A creditor on proving a claim against the principal's 
 estate may surrcixler a seoirity so as to prove for tlio f\ill auKumt without 
 thereby discharging a surety : Rainbow v. Juggins (1880) o Q. IJ. 1). 422. 
 
 I>; 
 
BILLS OK LAUINO. 
 
 52 VICTORIA (DOMINION). ov' 
 
 Chap. 30. 
 
 An Act relating to Bills of Lading. 
 
 (Assented to ilinl May, 1SS9.) 
 
 Whereas by the cnstotn of nu'rchiuits, a hill of lading of Preamble 
 goods being transferable l»y indorseiiuint, the property in the 
 goods may thereby pass to the indorsee, but nevertheless all 
 rights in respect of the contract contaijieil in the bill of lading 
 continue in the original shipper or owner, and it is expedient 
 that such rights should pass with the property ; and whereas 
 it frequently happens that the goods in respect of which bills 
 of lading pm-port to be signed have not been laden on board, 
 and it is proper that such bills of lading in the hands of a bona 
 fide holder for value should not be questioned by the master 
 cr other person signing the sanie, on the ground of the goods 
 not having been laden as aforesaid : therefore Her Majesty, by 
 and with the advice and consent of tht* Senate and House of 
 Commons of Canada, enacts as follows : — 
 
 1. Every consignee of goods named in a bill of lading, and Rijfhts vested 
 every indorsee of a bill of ladinj; to whom the property in the '" 9"58'K'>ee 
 goods therein mentioned passes upon or by reason of such con- 
 signment or indorsement, shall have and be vested with all 
 such rights of action and lie subject to all such liabilities in 
 
 respect of such goods as if the contract contained in the bill of 
 
 Oi^ 
 
 ~«^- 
 
 lading had been made with himself. 
 
 «: 
 
 8. Nothing in this Act contained shall prejudice or affect Certain rights 
 any right of stoppage in transitu, or any ri^'dit of an unpaid ■'"'^* ' 
 yendor under the Civil Code of Lower Cai.ada. or any right to 
 claim freight against the original shipper or owner, or liability 
 of the consignee or indorsee by reason or in consequence of 
 his being such consignee or indorsee, or of his receipt of the 
 goods by reafon or in consequence of such consignment or 
 indorsement. 
 
 r4.s»] 
 
440 
 
 BILLS OF LADING. 
 
 Bill of lading 
 to ba evidence 
 of shipment. 
 
 y 
 
 cz 
 
 -»■■• 
 
 r 
 
 / 
 
 V 
 
 3. Every bill of linUiifjj in the hands of a consignee or indor- 
 see for valuable consideration representing goods to have been 
 shipped on board a vessel or train shall be conclusive evidence 
 of such shipment as against the master or other pei-son signing 
 the same, notwithstanding that such goods or some part thereof 
 may not liave been so shipped, unless such holder of the bill 
 of lading has actual notice at the time of receiving 
 the same that the goods had not in fact been laden on board 
 or unless such bill of lading has a stipulation to the contrary ; 
 provided, that the master or other person so signing may 
 exonerate himself in respect of such misrepresentation by 
 .showing that it was caused without any default on his part, 
 and wholly by the fault of the shipper, or of the holder, or of 
 some person under wTiom the holder claims. 
 
 i 
 
HILLS OF LADING. 
 
 441 
 
 NOTES. 
 
 Section .5, (5 and 
 c. 
 
 TofR. S. O. 
 > , 
 
 Chapter 14ii aro taken from Imperial Act 18 
 and 19 V. c. Ill, SS. 1, 2 ami 3. 
 
 Bill of Lading. A Bill of Lading i.s ;— 
 
 (1 ) A receipt . 
 
 (2) Kvidcn(^ o of a contrao t and, 
 
 (3) .\ synihol of property ; 
 
 It emliodies an inidortaking by a carrier to carry the goods .specified on 
 pa^'ment of a specified sum. 
 
 Includea RaHwaj; 8. In Kngland tiie term extends oidy to a l>ill issued in 
 respec'l of tlic carriiige of goods hya siiip. In Ontario the 7tii Section contains 
 tlie word "train" whidi is not in the English Act. The Ontaiio Act tiiere- 
 fore, applies to railway carriers as well as to carriers i>y water. Royal 
 Canadian Hank v. Grand Trunk Railway (1873) 23 C. P. 225, and so does s. 3 
 of the Dominion Act. 
 
 Criticisms on words of Act. In Sewell v. Hurdick (188.5) 10 App. Cas. 74 at 
 p. 1!(r>, Loril Hramwcll said " I think tiiere is some inaccuracy of exiuession 
 in the Statute. It 'ecites tliat, ' Uy tiie custom of merchants a hill of lading 
 being tra.iofcrrable l)y indorsement tlie property in the goods may tiicrel)y 
 pass to tlie indorsee.' Now the trutii is tluit tlie jiroperty does not pass by 
 the indorsement, but by the contract in pursuance of which the indorsement 
 is made, if a cargo atloat is .sold, the property would pass to the vendee, even 
 though the bill of lading is not indorsed. So if the contract was one of security 
 — what would be a pledge if the pi'operty was handeil over— a contract of 
 hypothecation, the property would lie oouiid by the contract, at least to all 
 who liatl notice of it, though the bill of lading was not handed over. There is 
 I think, another inaccuracy in the Statute which indeed is universal. It 
 speaks of the contract contained in the bill of lading. To my mind there is no I 
 contract in it. It is a receipt for goods delivered to and received by the ship I 
 and therefore excellent evidence of those terms, but it is not a contract." See 
 also Crooks v. Allen (1879) ") Q. B. D. 40. 
 
 Where no property passes by indorsement. If a bill of e xchange is sinit to 
 
 the cimsi^^iiee, t^i be accepte d for tiie i)rice of the Koods, it is a well understoo d 
 rule tliat the bill of excluITige must be ac( epteil, or tlie iiill of lading cannot 'lie 
 rn^llillp^l,' Shepherd v. Harri.son (1871) L. R. 5 H. L. 170 ; Calm v. Pocketts 
 
 (1898)2ti.B. 61. 
 
 "Sheplierd v 
 Bristol Channel Packet Ci 
 
 Where " the " property passes. Thejndorsement aiK 
 operates as a symbolical deliver 
 
 delivery o f a bill of ladin g 
 
 " Tho indnrSee to whom the 
 
 assumes all other 
 
 iMiiH 
 
 iX , 
 
 iiropertyj jass es is liable for tlie freitzht, a nd assumes all other obligations oF 
 fKe shipperTos it the contract haT1~iTTOii made with him. The Helene (180.5) 
 B. & L. 41") ; see (i i). B. I). 480, 481. Property in the goods passes by such 
 iii'lorsemeiit, and delivery whereever it is the intention of the ])arties that the 
 property shall pass, just as under similiar circumstances tlie property would 
 pass by an actual delivery of the goods ; Sanders v. Maclean (1883) II (). H. D. 
 327; Sewell v. Hurdick' (1884) 10 App. Cas. 74, 79. An agreement by the 
 indorsee to sell the property without transfer of the bill of lading will not 
 deprive the indorsee of the right to sue up<iii the contract contained therein, 
 The Felix (1808) L. R. 2 A. & E. 273. 
 
 The indorsement confers the right to sue for breaches of ccmtract before as 
 .veil as lifter the indorsee became the owner of the goods ; Slioit v. Simjison 
 (1876) L. R. I C. P. 248 ; Wilhelm Schmidt (1871) 2;") L. T. 34 ; Brist.il ami 
 West of England Bank v. Midland Ry. Co. (1891) 2 (^ B. (),-)3. _TlieJ)ilLii 
 lad ing is a living iiisti'unient so liiiig as the enga j femen t of the ^\]i\) (jwiKl hi'" 
 not" been coiTTptWcty^TiTnTITi^il ; Barber v. Meyerstein (1870) L. R. 4 H. L. 317. 
 A_ transTe r'ortt" aftg rtfcBised to be in force wo uld n ot pass the contra ctu a 1 
 riglits oi[-JliitbiJljties~tIierc iFi(le r ; fine v. Warilen (1871) 9 fSess. Cas. (3rd) o2??. 
 
 Where "a" property passes by indorsement. On the indorsement of a bill of 
 lading to a bank or other lender of money thereon, a ipiestion ari.ses whetlier 
 the whole property has passed so as to transfer the liabilities ujKjn the con- 
 
/ 
 
 ■"^1 
 
 
 0'- 
 
 if 
 
 i 
 
 r: 
 
 442 : 
 
 V> 
 
 ,^' 
 
 •^ 
 
 :irM 
 
 BILLS OF LADING. 
 ■ \ 
 
 tract or whether merely a speeia! pr()])erty has jiaased. If only a special pro- 
 poity has ])asse(l there is no liability on tlie contract. 
 
 The authoriiics cstnbliHli tlio followinj^ ; — 
 
 (1) Wiiere the indorsee has taken pos ssiou of the goods he is liable for 
 
 the freight ; Fox v. Xott (IWil H. & X. 637, and is entitled to 
 the remedies against the sliij)o\ icr for hreacli of tlie contract of 
 carriage; Tlie Figlia Maggior. (18(58) L. R. '2 A. & K. lOti : The 
 Freedom (1871) L. R. .3 P. (). .'51)4 ; the indorsees have then elected 
 to com|)lete their jiotential and inchoate title t)y taking possession 
 of the goods ; per Lord Selluirne 10 App. (Jas. 88. 
 
 (2) An indorsee who indorses the liill of lading to tiie sliipper or to a third 
 
 party, is not liattle npon the contract, Snuu'tluvaite v. Wilkins 
 (1802) 11 C. R X. R. 847; Short v. Simpson (18(i(i) L. H. 1 
 C. ]'. 248, liut the shipper and a consignee to whom the projicrty 
 passed continue liable notwithstanding the indorsement; Fox v. 
 Nott (18(il) 6 H. k X. 0.37 ; Fowler v. Knoop (1878) 4 Q. B. 1). 2im; 
 unless tlie shipowner has accepted and acted ujion an order for 
 delivery which re(|uire8 him to look to the receiving of the goods, 
 Lewis V. McKee (1800) L. R. 2 E>l. 37. 
 
 (3) AVhcre the bill of lading is indorsed in blank as security the right of 
 
 the indorsee under that deposit is (both at law and in e(|uitv) 
 special and not general, and the slnpper retains the real an<l s\U)- 
 stantial pii)])erty in the goods subject to the securitj' and the 
 indorsee is, if he does not take j)ossession, not 1: d)le for the freight; 
 Sewell V. Burdick (1884) 10 Ai)]). Cas. 74. 
 
 (4) If tlie effect of the transfer of the bill of lading is to transfer tlie legal 
 
 title in the goods subject to a right of re(leni])tion, i. e. to make a 
 mortgage as distinguished from a ])le(lge ; Lord Blacklmrn was 
 strongly inclined to liohl that there would not have been a transfer 
 of "the'" property within the meaning of the Act ; 10 App, Cas. 
 at p. 96. 
 
 (5) Altogether independently of the Act an indorsee of a bill of lading will 
 
 acquire a property in the goods whetlicr as pledgee or owner and 
 will be entitled to maintain an action against any jierson who with- 
 out justification oi' excuse dophvcs liini of the right to obtain 
 possession from tiic carrier ; Barber v. Meverstein (1807) L. R. 2 
 C. P. 38, 061, L. R. 4 H. L. 317 ; Olyn v. Fast and West India 
 Dock Co. (1882)7 App. Cas. mX ; Bristol and West of Fngland 
 Bank v. Midland Ry. Co. (1801)2 ^i. B. 0.")3 see 10 Ap|). Cas. 08. 
 
 (6) If the transfer of the bill of lading iias been as security only, the shi))- 
 
 per will, in tlie insolvency, retain the I'ight of stoppage in transitu 
 subject to the security, notwithstanding sah's of the goods "to 
 anivo " to jmrchasers. Westzinthus (1833) "> B. & Ad. 817; 
 Spalding v. Ruding (1843) OBeav. 376 ; Kemp v. Falk (1882) 7 App. 
 Cas. 573. 
 
 (7) An indorsement of tlic l>ill of lading will not, in favor of creditors of 
 
 ( the in<lorsee, transfer the property to him free from the equitable 
 } right of otjiers to the goods or tlieir proceeds. Dominion Bank v. 
 I Davidson (1885) 12 A. R. 00 ; Xorth Western Bank v Poynter 
 (1805)A.C.C0. 
 
 (8) Agents for sale of goods to wlioin a liill of lading ..-i indorsed have no 
 
 ' title to the goods, and are not lial)h% liy reason of the indorsement, 
 ■ for freight ; conceded in White v. Finiiiss (1805) A.C. 40 at pp. 43, 
 ^ 49, f)3. 
 
 Contract contained in the Bill of Lading. The Bill of Lading must lie taken 
 to Ije the contract under wliicli the giiods are shippeil ; Fraser v. Telegraph 
 Construction Co. (1872) L. R. 7 C. B. 560, and every assignee therc^of must he 
 bound liy the terms of the cdntiact therein expressed ; (Hyii v. East and West 
 India Docks Co. (1882) 7 Ajip. ('aw. 591. F.vidence to show that the shippers 
 of the goods knew at the time when the bill of la<ling was given that is was 
 intended that the ship shouhl call at a port out of the regular track of 
 the designated voyage is inadmissible ; Leduc v. Ward (1888) 20 (,J.B.D. 475. 
 But where a contract for sliipinent has lieen made witli the shipowner the 
 acceptance of a formal bill of lading, after i\w ship had sailed, will not 
 bind the shipper to terms not noticed by him varying from those originally 
 agreed upon ; Xorth- West Transportation Co. v. McKonzio (1895) 25 S.C. R. 38. 
 
BILLS OF LADING. 
 
 443 
 
 Where there is a Charter-Party. It is usual, althougli the goods are lieing 
 cari'itMi uiidor a charter-pnrt\' to give the charterers l)ills of lading ; as lietween 
 them and tlie sliipowner the bill of lading amounts merely to a receipt and a 
 H^'mhol of pr<)[)eriy. hut does not, prima farir, operate as a new contract. 
 Rodocanaclii v. ^Iill)ui-n (1880) 18 Q. H. 1). fi7 ; but as to third parties, 
 the bill of Lading is the contract even tho\igh they had notice of tlie charter- 
 partv, unlesH that is incorporated bj' express terms ; Fry v. Chartered 
 Mercantile Bank (18()6) L. R. 1 C. P. 089. Tlie bill of lading in such cases 
 often contains the clause "all other conditions as per charter-party'' wiiich 
 means " conditions which are to be perfi)rmed by the receiver of the goods" ; 
 Serraino v. Camnbell (1891) 1 Q. B. 292 ; Diedcrichson v Farquarharson (1898) 
 1 Q. B. \'>0, .so that clauses excepting liability for negligence or providing for 
 arbitration would not be incorporated ; (iray v. Carr (1S71) L. R. Q. B. .'J22, 
 Russell V. Nienmnn (1804) 17 C. B. N. H. "lO.S ; Hamilton v. Mackie (1889) 3 
 T. L. K. ()77. Where the rate of freight exprcs.sed in the iiill of lading is 
 smaller than that of the charter-party, the clause will not entitle the ship- 
 owner to tiie larger rate of freight as against the consignee or his indorsee ; 
 Gardner v. Trechniaini (1884) 15 (|J.B. D. I.'i4 ; but liens for freight or demurrage 
 will come within the clause; (Jrav v. Carr (1871) OQ. B. "i22 ; Porteus v. 
 Watnev (1878) .S Q. B. D. 5.34 ; Neill v. Ridley (1854) 9 Ex. 077. 
 
 " Clean " and " through " Bills of Lading. A "clean" bill of lading is one 
 whicii acknowledges receipt of the goods in good order and condition. Resti- 
 tution S. 8. Co. V. Pirie (1889) 01 L. T. 5;i.3. A " through" bill of lading is 
 one where the goods are to be carried by different r,ils or more than one ves- 
 sel or partly by rail and partly by water. Greeves v. West India Co. (1870) 
 22 L. T. 015, and it has been doubted wliether the act appli(!s thereto, see 
 Carver on Carriage by fSea p. 107 n. ; and it has been settled that a 
 Canadian Railway Companj- may, notwithstanding tiie Railway Act, limit the 
 liability beyond its own line so as not to be rcsponsiljle for the negligence of 
 another carrier ; (irand Trunk Railway Company v. McMillan (1889) 16 S. 0. 
 R. 54,3. 
 
 Ownership of Goods. Proving tiiat a bill of lading has been indor.sed to the 
 plaintiff for value is sufficient prima facie evidence of his ownership of the 
 goods; Dracachi V. Anglo-Egyptian Navigation Co. (1868) L. R. 3 C. P. 190. 
 
 Negotiability. Bills of lading are generally made to " order or assigns " and 
 in the absence of such words tliey are not negotiable ; Henderson v. Comptoir 
 d' Escompte de Paris (187.3) L. R. 5 P. C. 253. " Negotial)ility "' means hero 
 nothing morethan transferable by indorsement. The transfer of tlie ))ill of lading 
 has no greater effect than the transfer of the possession of goods and can confer 
 no greater title ; Colo v. North Western Bank (1875) L. R. 10 C. P. .362; 
 Lutscber v. Comjjtoir d' Escompte de Pari.s (1870) 1 (.}. B. I). 709. 
 
 Bills drawn in sets. Bills of lading for the carriage of goods by sea are 
 usually drawn in sets of three. Tlie mas' or of the ship, is justified in deliver- 
 ing tlie goods to the bolder of the first bill of lading pre.sentefl to liiiii if lie has 
 no notice of a rival claim under another ; Glyn v. East an<l West India Dock 
 Co. (1882) 7 App. Cas. 591 but the property in tlie goods is in tlie per.son who 
 first acquired one of the parts ; Barber v. Meyerstein (1870) L. R. 4 H, L. 
 317. 
 
 Liability of Consignee for Freight. ^^'hcre a consignee takes possession 
 on the terms of the bill of lading there is evidence of an im])lie<l contract to pay 
 freight and any demurrage which is due, although he is only an agent and the 
 property therefore ''oes not pass to him ; Wegener v. Smitii (18,)4) 15 (,". B. 
 285, but if lie refuses before ilelivery to pay demurrage there is no evidence of 
 any liability therefor. S. S. Lancaster v. oharp (1889) 24 Q. B. I). 158, see 
 also Fowler v. Knoop and Lewis v. McKee supra. 
 
 Conclusive evidence of Shipment. Sec. 7 of the Ontario Act (3 of Dominion) 
 only makes the liill of lading conclusive against the per.srfn by whoso authority 
 it was signed ; .Tessel v. Bath (1807) L. R. 2 Ex. 207 ; Brown v. Powell Coal 
 Co. (1875) L. R. IOC. P. .502. 
 
 Authority of Master. Tin; master of a ship has no nut liority to grant bills 
 of lading for goods which were not put on board bis vessel, McLean v. Fleming 
 (1871) L. R. 2 H. L. Sc. 128 ; Grant v. Norway (1851) 10 C, B. 005; Erb v. 
 (Jreat Wester,: Ry. Co. (1881) 5 iS. C. R. 179, nor for a greater <juantity tiian 
 those on board ; Hubbersty v. AVard (1853) 8 Ex. 330,l)ut when he .signs a 
 bill acknowh;dging the receipt of a specific uuantity of goods, the shipowner 
 is bound to deliver the full amount specifietl, unless ho can show that the 
 
444 
 
 HILLS OF LADING. 
 
 
 i 
 
 r; 
 
 5C5 
 
 whole or some part of it was in fact not shipped; Smith v. Bedouin Steam 
 Navigiitioii Co. (LS<)(5) A. C. 70. 
 
 Valuable considers uion. A transfer of a l)ill of hiding in eonsideration of an 
 antecedent delit is a tiansfer for vahial)le eonsideration within the Act ; Ciiart- 
 ered Hank of India v. Henderson (.'874) L. R. 5 P. C. 5"! ; Leasii v. Seott 
 (187(>) 2 Q. ]}. 1). .376 ; The Knilhen :,Iarie (1875) 44 L. J. Adni. i». 
 
 Bills signed by other Agents. Bills of lading are sometimes signed hv the 
 imrser : Roval Canadian Bank v. (.'arruthers (180!)) 28 U. ('. R. .■■)78, "iil U. C. 
 R. 28:?, or tiie sliip"., l)roUer, Hayn v. Culliford (1878) 3 C. P. D. 410 or a ships 
 agent ; Je.ssel v. Bath (1807) L. R. 2 Kx. 207. Although they aie agents to 
 conduct the luisiness of the shi])nient, they are not the owner's agents to make 
 an a<lmission contrary to the fact by signing a hill of lading for a ([uantity they 
 know nothing of ; Jessel v. Bath, sH/iru. 
 
 Evidence of extended AuthOilty. ^^'llere it was the custom of an agent, to 
 the cari'iers knowledge, to sign hills of lading before receiving the goods the 
 carriers were held lial)lo on hills for goods not received ; McLean v. Buffalo and 
 Lake Huron Ry. Co. (1865) 24 U. C. R. 270. 
 
 Estoppel. The Act creates no estoppel against the master or other person 
 signing the hill of lading as to the condition of the goods ; Chapman v. Zealand 
 (1874) 24 C. P. 421 ; nor in an action for freight as to the weight of the goods, 
 Blanchet v. Powell's Llantivit Collieries Co. (1874) L. R. 9 Ex. 74. The hill 
 of lading is conclusive only between the person signing and ccnisignees or 
 indorsees not between the owners of the goods ; Allen v. Chisholm (1873) 33 
 U. C. R. 2.S7. 
 
 Fraud of Shipper. Where there was evidence that a mistake as to the 
 number of bales put on board was caused by the fraud of the person who put 
 tliL goods on board, it was held to be evidence that the " misrepresentation 
 was caused wholly by the fraud of the shipper." Those words only mean that 
 the captain or other person on board the ship nnist not in anv way be mixed 
 up with the fraud ; Valieri v. Boyland (1866) L. R. I C. P. .382. 
 
 It will be notic^ed that the words in the Dominion Act are " fault of shipper." 
 
 Warehouse Receipts. As to advances upon the security of warehouse re- 
 ceii)t«, see notes on the Bank Act, infra. 
 
CHAPTER 147. 
 
 An Act respecting Assignments and Preferences by 
 Insolvent persons. 
 
 COXFESSIONSOFJUDGMENT.COGNOVITS, 
 ETC. , IN FKAUD OF CREDITORS TO 
 HE VOIU, S. 1. 
 
 Assignments, etc., in prejudice of 
 
 creditors to be void, 8. 2. 
 Recovery of proceeds where pro- 
 perty SOLD, 8. lU. 
 Assignments for benefit of credi- 
 tors, 88. 3-(). 
 
 How claims aro to rank, a. 7. 
 
 Appointmont and rights of as- 
 signee, 8S. 8-10. 
 
 Assignments to take precedence 
 of executions, s. 11. 
 
 Amendment by Court, s. 12. 
 
 Assignment to be registered and 
 notice thereof published, as. 
 13-16. 
 
 Meeting of creditors, ss. 17, 
 
 18. 
 Voting, 88. 19, 20. 
 Proof of claim, s. 21. 
 Contestation, bs. 22, 23. 
 A.ssETs to be retained in Province, 
 
 8. 24. 
 Accounts and statement, s. 25. 
 Set off, s. 20. 
 Affidavits, s. 27. 
 Dividends and dividend sheet, 
 
 ss. 28-30. 
 As.sionee's remuneration, ss. 31, 
 
 32. 
 Inspector's remuneration, s. 33. 
 Examination of a.ssignor, etc., 
 
 88. 34-39. 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 Confessions or 
 warrants to 
 confess judg- 
 ment given by 
 insolvents to 
 defeat or delay 
 creditors or to 
 give one pre- 
 ference over 
 the other to be 
 void. 
 
 1. In case any person, being at the time in insolvent cir- 
 cumstances, or unable to pay his debts in full, or knowing him- 
 self to be on the eve of insolvency, voluntarily or by collusion 
 with a creditor or creditors, gives a confession of judgment, 
 cognovit actionem or warrant of attorney to confess judgment 
 with intent, in giving such confession, cognovit actionevi or 
 warrant of attorney to confess judgment, to defeat or delay 
 his creditors wholly or in part or v/ith intent thereby to give 
 one or more of the creditors of any such person a preference 
 over his other creditors, or over any one or more of such credi- 
 tors, every such confession, cognovit actionem or warrant of 
 attorney to confess judgment, shall be deemed and taken to be 
 null and void as against the creditors of the party giving the 
 same, and shall be invalid and ineffectual to support any judg- 
 ment or writ of execution. R. S. 0. 1887, c. 124, s. 1. 
 
 58. — (1) Subject to the provisions of section 3 of this Act, GUbe, 
 every gift, conveyance, assignment or transfer, delivery over ^ade by ' ^ ° ' 
 or payment of goods, chattels or effects, or of bills, bonds, notes insolvents 
 or securities, or of shares, dividends, premiums, or bonus in any ^^ prejudice* 
 bank, company or corporation, or ot any other property, real creditors to be 
 or personal, made by a person at a time when he is in insolvent ^ 
 circumstances, or is unable to pay his debts in full, or knows 
 that he is on the eve of insolvency with intent to defeat, 
 
 [445] 
 
446 
 
 Chap. 147. 
 
 AS.SIGNMENT.S BY INSOLVENTS, 
 
 Sec. 2 (1). 
 
 "Creditor" 
 for certain 
 pnrpo8es to 
 include surety 
 and endorser. 
 
 Fending pro- 
 ceedings not 
 affected. 
 
 liinder, di'lay or jjivjudice his creditors, or any oiio or more of 
 them, slifvU an aj^uinst tlie creditor or creditors injured, dehiyed 
 or i)rejiidiced be utterly void. 
 
 (2) Su])ject to tlie provisions of section 3 aforesaid, every 
 (jift coii\ eyance, assiirnment or transfer, delivery over or pay- 
 ment of (foods, chattels or efi'ects, or of bills, bonds, notes, or 
 securities, or of shares, dividends, premimns, or bonus in any 
 bank, company or corporation, or of any other property, I'eal 
 or personal, made by a person at a time when he is in insolvent 
 circumstances, or is unable to pay his debts in full, or knows 
 that he is on the eve of insolvency, to or for a creditor with 
 intent to give such creditor an unjust preference over his other 
 creditors or over any one or more of them, shall, as against the 
 creditor or creditors injured, delayed, jDrejudiced or postponed, 
 be utterly void. 
 
 (8) Subject to the provisions of section 3 aforesaid, if such 
 tran.saction with or for a creditor has the effect of giving that 
 creditor a preference over the other creditors of the debtor or 
 over an}^ one or more of them, it shall in and with respect to 
 any action or proceeding which, within sixty days thereafter, 
 is brought, had or taken to impeach or set aside such trans- 
 action, be presumed prhna facie to have been n)ade with the 
 intent aforesaid, and to be an unjust preference within the 
 meaning hereof whether the same be made voluntarily or 
 nnder pressure. 
 
 (4) Subject to the provisions of section 3 aforesaid, if such 
 transaction with or for a creditor has the effect of giving that 
 creditor a preference over the other creditors of the debtor or 
 over any one or more of them, it .shall, if the debtor within 
 sixty days after the transaction makes an assignment for the 
 benefit of his creditors, be presumed prima facie to have been 
 made with the intent aforesaid, and to be an unjust preference 
 within the meaning hereof, whether the same be made volun- 
 tarily or under pressure. 54 V. c. 20, s. 1. 
 
 (5) Where the word " creditor " occurs in the eighth and ninth 
 lines of subsection 2 of this section, and in the second and third 
 lines of subsection 3, and in the second and third lines of subsec- 
 tion 4, such word .shall be deemed to include any surety and the 
 indorser of any promissory note or bill of exchange, who would 
 upon payment by him of the debt, promissory note or bill of 
 exchange, in respect of which such suretyship was entered into 
 or such endorsement was given become a creditor of the person 
 giving the preference within the meaning of said subsections. 
 This subsection shall not affect any action, suit or proceeding 
 pending on the 14th day of April, 1892, but the same shall be 
 adjudicated upon and determined as if this subsection had not 
 been passed. 55 V. c, 25, s. 1, 2. 
 
 Assignments 3. — (1) Nothing in the preceding section shall apply to any 
 for beuLfit of assignment made to the sheriff of the county in which the debtor 
 bona fide naiea, resides or carries on business, or with the consent of a 
 
 etc., pro- 
 tected. 
 
Sec. 3 (5). 
 
 ASSIGNMENTS BY INSOLVENTS. 
 
 Chap. 147. 
 
 447 
 
 inajority of his creditors haviiii^ claims of SlOO and up- 
 wards computed according; to the provisions of section 20, 
 to another assignee resident within the Province of 
 Ontario, for the pur|)Ose in each of the said cases of paying 
 rateably and proportionately and without pivfeience or 
 priority all the creditors of the debtor their just debts ; nor to 
 any bona Jidf- aula or payment made in the or<linar3' course of 
 trade or calling to innocent purchasers or parties ; nor to any 
 payment of money to a creditor, nor to any bona Jide con- 
 veyance, assignment, transfer or delivery over of any goods, 
 securities or property of any kind, as above-mentioned, which is 
 made in consideration of any present actual bona fide payment 
 in money, or by Wiiy of security for any present actual bona 
 fide advaTice of money, or which is made in consideration of 
 any present actual buna fide sale or delivery of goods or 
 other property ; provided that the money paid, or the 
 goods or other property sohl or delivered bear a fair and 
 reasonable relative value to the consideration therefor, 
 
 (2) In case of a valid sale of goods, securities or property, and 
 payment or transfer of the consideration or part thereof by the 
 purchaser to a creditor of the vendor, under circumstances which 
 would render void such a payment or transfer by the debtor 
 personally and directly, the payment or transfer, even though 
 valid as respects the pui'chaser, shall be void as respects the 
 creditor to whom the same is made. R. S. O. 1887, c. 124, s. 3 
 (1, 5). 
 
 (3) Every assignment for the general benefit of ci-editors, 
 which is not void under section 2 of this Act, but is not made 
 to the sheriff, nor to any other person with the prescribed 
 consent of creditors, shall be void as against a subsequent 
 assignment which is in conformity with this Act, and shall be 
 subject in other respects to the provisions of this Act until and 
 unless a subsequent assignment is executed in accordance with 
 this Act. 
 
 (4) In case a payment has been made which is void under 
 this Act, and any valuable security was given up in considera- 
 tion of the payment, the creditor shall be entitled to have the 
 secxirity restoied, or its value made good to him befoi'e, or as a 
 condition of, the return of the payment. R. S. 0. 1887, c. 124, 
 s. 3 (2. 3). 
 
 (■)) Nothing herein contained shall affect T/ieAct resj>ecting 
 WiKjet^, or shall prevent a debtor providing for payment of wages 
 due by him in accordance with the provisions of the said Act. 
 Nor shall anything herein contained afl'ect any payment of 
 money to a ci'editor, where such creditor by reason or 
 on accoiuit of such payment, has lost or been deprived 
 of, or has in good faith given up, any valid security 
 wiiich he held for the payment of the debt so paid, 
 unless the value of the security is restored to the creditor. 
 Nor to the substitution in good faith of one security for 
 another security for the same debt so far as the debtor's 
 
 / 
 
 1 
 
 i4 
 
 Proviso. 
 
 Transfer to 
 creditor of 
 consideration 
 for sale in- 
 valid. 
 
 General 
 
 assignment 
 not in accord- 
 ance with Act, 
 when voidable. 
 
 Security given 
 up upon void 
 payment to he 
 returned. 
 
 Rev. Stat, 
 c. 156. 
 
 Payment of 
 wages pro- 
 tected. 
 
<'V, 
 
 448 
 
 Chap. 147. ASSIGXMENTS BY INSOLVENTS. 
 
 Sec. 3 (5). 
 
 if 
 
 i 
 
 iiient.s to be 
 valid 
 
 Exchange of estate is not tlioreby lessened in value to the other creditoi's. 
 
 securities pro- Nor shall anything herein contained invalidate a .security 
 given to a creditor for a pre-existing debt where by reason or 
 
 Certain ftSBign- on account of the giving of the security, an advance in money 
 is made to the debtor by the creditor, in the bona fide belief 
 that the advance will enable the debtor to continue his trade or 
 liusiness, and to pay his debts in full. R. S. O. 1887, c. 1?4, 
 s. 3 (4) ; 54 V. c. 20, s. 2. 
 
 Assignee must 4. No person other than a permanent and bona fide resident 
 niside \\\ the of (^]jj^ Pixjvince shall have power to act as assignee under an 
 as.signment within the provisions of this Act made after the 
 23rd day of March, 1889, nor shall any such a.ssignee have 
 power to appoint a deputy or to delegate his duties as assignee 
 to an}' pei'son who is not a permanent and bona fide resident 
 of this Province ; and no charge shall be made or recoverable 
 against the assignor or his estate* for any services or other 
 expenses of any such assignee, deputy or delegate of any 
 assignee who is not a permanent and bona fide resident of this 
 Province as aforesaid. 52 V. c. 21, s. 1. 
 
 Form of 5. Every assignment made under this Act, foi the general 
 
 "^-nemr"* '"" benefit of creditors shall be valid and .sufficient if it is in the 
 
 benefit of words following, that is to say — all my personal property 
 
 creditors. which may be seized and sold under execution and all my real 
 
 estate, credits and effects — or if it is in words to the like effect ; 
 
 and an assignment so expressed shall vest in the assignee all the 
 
 real and personal estate, rights, property, credits and effects, 
 
 whether vested or contingent belonging at the time of the 
 
 assignment to the assignor, except such as are by law exempt 
 
 from seizure, or sale under execution, subject, however, as 
 
 regards lands, to the provisions of the registry law as to the 
 
 registration of the assignment. R. S. 0. 1887, c. 124, s. 4. 
 
 [As to the preferential lien of a landlord, see Cap. 170, 
 sec. 34-] 
 
 All assign- ii. Every assignment hereafter executed for the general 
 
 gene*ral benefit benefit of creditors, whether the assignment is or is not 
 of creditorH to expressed to be made under or in pursuance of this Act, and 
 this A^'t** '" whethei- the debtor has or has not included all his real 
 and pe jual estate, shall ve.st the e.state, whether real or per- 
 sonal or partly real and partly personal, thereby assigned in the 
 assignee thei'ein named for tlie general benefit of creditors, 
 and such assignment and the property thereby assigned shall 
 be subject to all the provisions of this Act, and the provisions 
 of this Act shall apply to the assignee named in such a.ssign- 
 ment. 58 V. c. 23, s. 5. 
 
 Howckims i '^ ■ I^ ^^Y assignor or assignors executing an assignment 
 
 are to rank I under this Act for the general benefit of his or their creditors 
 
 Mit^estateaT I owea or owe, debts both individually and as a member of a co- 
 
 I partnership, or as a member of diflferent co-partnerships, the 
 
Sec. 10(1). 
 
 ASSIGNMENTS BY INSOLVENTS. 
 
 Chap. 147. 
 
 449 
 
 170, 
 
 claims shall rank first upon the estate by which the debts they 
 represent were contracted, and shall only rank upon the other 
 or others after all the creditors of such other estate or estates 
 have been paid in full. R. S. 0. 1887, c. 124, s. 5. 
 
 8. — (1) A majority in number and valu e of the creditors who Apixiintment 
 have proved claims to the amount of SlOO or upwards, may at agg'ignee '"'*"* 
 their discretion substitute for the sherift', or for an aHsiffnee ^ 
 
 under (111 asHi^nment to wliich subsection 3 of section 3 of this ^y 
 
 Act applies, a person residing in the county in which the ^- 
 
 debtor resided, or carried on business at the time of the 
 assignment. An assignee may be removed, and another sub- 
 stituted, or an additional assignee appointed by a Judge of 
 the High Court, or of the County Court where the assignment 
 is registered. R. S. 0. 1887, c. 124, s. G (1); 53 V. c. 34, s. 1. 
 
 (2) Where a new or additional assignee is appointed the Estate to vest 
 estate shall forthwith vest without a conveyance or transfer, '" subBtituted 
 and he shall register an affidavit of his appointment in the ^''*'^^''''' 
 office in which the original assignment was filed, such 
 an affidavit may also be registered under The Registry 
 Act. The registration of the affidavit under The Registry Act Rev. St^t. 
 shit 11 have tht, same effect as the registration of a conveyance. ^' 
 R. S. 0. 1887, c. 124, s. 6 (2). 
 
 !>. — (1) Except as in this section is hereinafter provided, Ri(?ht8 of 
 the assignee shall have an e xclusive right of suing for the rescis- ""^iK"*^^- 
 
 xclusive 
 nuTmstri 
 
 Tu^J 
 
 sion of agreements, deeds andinstruments or other transactions, 
 made or entered into in fraud of creditors, or made or 
 entered into in violation of this Act. 
 
 (2) If at any time a creditor desires to cause any pro- Creditor may 
 ceeding to be taken which, in his opinion, would be for the proceed in 
 benefit of the estate, and the assignee under the authority of ff^MigtiM^* 
 the creditors or inspectors, refuses or ne gle cts to take such pro- refuses, 
 ceeding, alter being dul y required so to do . the creditor shall 
 have the right to obtain an order of the Judge authorizing him 
 to take the proceedings in the name of the assignee, but at his 
 own expense and risk, upon such terms and conditions as to 
 indemnity to the assignee, as tlie Judge may prescribe, and 
 thereupon any benefit derived from the proceedings shall, 
 to the extent of his claim and full costs, belong exclu- 
 sively to the creditor instituting the same for his benefit, 
 but if, before such order is granted, the assignee shall signify 
 to the Judge, his readiness to institute the proceedings 
 for the benefit of the creditors, the order shall prescribe 
 the time within which he shall do so, and in that case 
 the advantage derived from the proceeding, if instituted with- 
 in such time, shall belong to the estate. II. S. O. 1887, 
 c. 124, R. 7. 
 
 10. — (1) In the case of a gift, convej'ance, a.ssignment or poijo„,ing 
 transfer of any property, real or personal, which in law is invalid proceeds of 
 against creditors, if the person to whom the gift, conveyance, F/audulently 
 D 1 transferred. 
 
 c. a-. 
 
450 
 
 Clmp. 147. ASSIfiNMKNTS BY INSOLVENTS. 
 
 Sec. 10 (1). 
 
 2 
 
 '".1' 
 
 r''' 
 
 {/ 
 
 i 
 
 r: 
 
 1^. 
 
 Taking pro- 
 ceedH unilt^r 
 executiun. 
 
 Rev. Stat. 
 c. 78. 
 
 Creditor 
 Ruing on be- 
 half of hiinef^lf 
 and other ure- 
 ditora. 
 
 Protection of 
 innocent jmr- 
 chasera. 
 
 Aitsignments 
 to take pre- 
 cedence of 
 judgmentsand 
 executions. 
 
 assij^iiiiuMit or transtVr wa.s made sliall liavt' sold or disposed of, 
 roalizcd or collected the property (jr any part thereof, the 
 money or other proceeds may bo seized or recovered in any 
 action by a person who would be entitled to seize and 
 recover the property it' it had remained in the possession or 
 contiol of the debtor or of the jjurson to whom the ((ift, 
 conveyance, transfer, deliveiy or jiayment was made, and such 
 ri;4;ht to seize and recgver shall belong', not only to an assijfneo 
 for the jreneral benetit of the creditors of the said debtor, but 
 in case there is no such assienmci t, shall exist in favour of 
 all creditors of such debtor. 5iS V. c. 2o, s. 1. 
 
 (2) Where there has been no a.ssignment for the benetit of 
 creditors, and the proceeds are of a character to be seizable 
 under execution, they may be seizecl under the execution of 
 an\' creditor, and shall l)e distrilnitable amonjfst the cn.'ditors 
 under The Crcdltorfi' lldief Act or otherwise. TjH V. c. 28, s. 2. 
 
 (M) Where there has been no assi<fnment for the benetit of 
 creditors, and whether the proceeds realized aforesaid are or 
 ari' not of a character to be seize<l under tjxt'cution, an action 
 may be brou<;'ht thert'for by a creditor (whether an execution 
 creditor or not), on behalf of himself and all other creditors, 
 or such other pi'oceedinj^'s may b(,' taken as may be necessary 
 to render the said jiroceeds available for the general benetit of 
 the creditors. ocS \'. c. 28, s. 8. 
 
 (4) This section shall not upply as ayainst iniujcent pur- 
 chasers of the property. 58 V. c. 23, s. 4. 
 
 1 1. An a ssi^ men t for the general benefit of ci'ed'tors under 
 this Act shaIF^ke_prejQedence of all attachments, of all judg- 
 ments and o f all ^ executions not completelyexecuted by pay- 
 ment, subjecTto tlTe lien, if any, of an execution creditor for 
 his costs where there is but one execution in the sheriffs 
 hands, or to the lien, if an}', of the creditor for his cost s who 
 has the first execution in the sheriff's hands. K. S. 0. 1887, 
 c. 124, s. 9 ; 59 V. c. 31, s. 2. 
 
 Amendment 
 of assignment 
 by judge. 
 
 \'i. No advantage .shall be taken or gained by any creditor 
 of any mistake, defect or imperfection in any assignment 
 under this Act for the general benefit of creditors if the same 
 can be amended or corrected, and any such mistake, defect or 
 imperfection shall be amended by any Judge of the High 
 Court, or of the County Court aforesaid, on application of the 
 assignee or of any creditor of the assignor, on such notice 
 being given to other parties concerned as the Judge shall think 
 reasonable, and the amendme^it, when made, shall have relation 
 back to the date of the assignment, but so as not to prejudice 
 the rights of innocent purchasers. R. S. 0. 1887, c. 124, s. 10 ; 
 60 V.'e. 3, s. 3. 
 
 Mr 
 
Sec. 14 (1). ASSIGNMENTS BY INSOLVENTS. 
 
 Chap. 147. 
 
 461 
 
 III. — (1) No assigninent iimdc for the general benefit of Notice rf 
 creditors under this Act shall be within the operation of The Act """ik""''"' J" 
 roijHxtinij i]I urttf(i(/ea autl bdlcnof I o'sonal I ropert 1/ ; buta notice j^^^ j^^^^ 
 of tlic assifrnment shall, as soon as conveniently may be, be c. H8 
 published at least once in the Ontario Gazette and not less 
 than twice in one newspav'er at the least, havinj^ a general cir- 
 culation in the county in which the property assigned is situate. 
 
 (2) A counterpart or copy of every such assignment shall AsHiirninent to 
 also within five days from the execution thereof be registered, be regi»ti'ied. 
 (together with an affidavit of a witness thereto of the duo 
 execution of the assignment or of the due execution of the 
 assignment of which the copj' filed purports to be a copy), in the 
 
 office of the clerk of the County Court of the county or union 
 of counties where the assignor, it' a resident in Ontario, resides 
 at the time of the execution thereof, or if he is not a resident 
 then in the office of the clerk of the County Court of the county 
 or union of counties where the personal property so assigned 
 is or where the principal part thereof (in case the assignment 
 includes property in more counties than one) is at the time of 
 the execution of such assignment; and such clerks shall tile all 
 such instruments presentetl to them respectively for that pur- 
 pose, and shall endorse thereon the time of receiving the same 
 in their respective offices, and the same shall be kept there for 
 the inspection of all per-sons interested therein. The said clerks 
 respectively shall number and enter such assignments, and be 
 entitled to the same fees for services in the same manner as if 
 such assignments had been registered under The Act respecting -o , a. ^ 
 Mortgages and Sales of Personal Fropertif. R. S. O. 18N7, c lis 
 0.124,8.12(1,2.) 
 
 (3) In the Districts of Muskoka, Parry Sound, Nipissing, where assign- 
 Algojua, Manitoulin, Thundt-r B<jy and Rainy River, and ininenttobc 
 any other district which may be hereafter formed, and in the f,}g['.|'"J^'n'd'" 
 Provisional l.'omity of Haliburton the comiterpart or copy inHuliburton. 
 of the a.ssignment shall be filed in the same office and within 
 
 the same time respectively as by the law at the time of the 
 assignment in force mortgages and bills of sale of personal 
 property' are re{|uired to be filed in such disti-icts, and pro- 
 visional county i-espectively, and the clerk in whose office the 
 same is filed shall perform the like duties and be entitled to 
 be paid the like fee.' as clerks acting under the preceding sub- 
 section. 59 V. c. 31 , s. 1. 
 
 14. — (1) If the .said notice is not published in the regular Penalty for 
 number of the Ontario Gazette, &nd of such newspaper as afore- neglecting 
 said, which shall respectively be issued first after five days from legLn-ation. 
 the execution of the assignment by the assignoi', or if the assign- 
 ment is not registered as aforesaid within five days from the 
 execution thereof, the assignor shall be liable to a penalty 
 of S25 for each and every day which shall pass after 
 the issue of the immber of the newspaper in which the 
 notice .should have appeared until the same, shall have been 
 
452 
 
 Chap. 147. 
 
 ASSIGNMENTS BY INSOLVENTS SeC. 14 (1). 
 
 a 
 
 r^ 
 
 
 I 
 
 i 
 
 5^ 
 
 Liability of 
 slieritr. 
 
 ComiH'llinf? 
 puhlicfttiim 
 and 
 registration. 
 
 Assignment 
 not invali- 
 d.ited by 
 omission to 
 publish, etc. 
 
 Assignee to 
 call meetinp 
 of creditor, -i. 
 
 Meeting of 
 creditors by 
 request of 
 majority 
 thereof. 
 
 publirthed ; and a like penalty for each and every day which 
 •sliall pass after the expiration of live day.s from the execution 
 of the a.s.signment by the a.s.signor until the same shall have 
 l)een rcfjji.stered. 
 
 (2) The a.s,signee shall be .subject to a like penalty for each 
 and every day which shall i)ass after the expiration of five 
 days from the delivery of the assignment to him, or of five 
 days after his assent thereto. The burden of proving the time 
 of such delivery or a.ssent shall be upon the a.ssignee. 
 
 (3) Such penalties may be recovered summarily before a 
 Judge of the High Court, or of the County Court of the county 
 in which the assignment ought to be published or registered ; 
 one-half of the penalty shall go to the jmrty suing, and the 
 other half for the benefit of the estate of the assignor. 
 
 (4) In case of an Jissignment to the sherift" he shall not be 
 liai)lo for any of the penalties imposed in this section, unless 
 ho has bt'on paid oi" tendered the cost of advertising and 
 registering the assignment, nor shall he L)e compelled to act 
 under the assignment until his costs in that behalf are paid or 
 tendered to him. K. S. 0. l8.S7,c. 124, .s. 13. 
 
 15. In ca,se the assignment is not registered, and notice 
 thereof published, an application may be made by any one 
 interested in the assignment to a Judge of the High Court, or 
 of the County Court aforesaid, to compel the registration of the 
 .Lssignment and pul)lication of such notice ; and the Judge shall 
 make his order in that behalf, and with or without costs, or 
 upon the payment of costs by such person as he m.ay in his 
 discretion direct to pay the same. 11. S. 0. 1887, c. 124, s. 14. 
 
 1(». The omission to publish or register as aforesaid, or any 
 irregularity in the publication or registration, shall not invali- 
 date the assignment. R. S. O. 1887, c. 124, s. 15. 
 
 IT. It shall be the duty of the a,ssignee immediately to 
 inform himself, by reference to the debtor and his records of 
 account, of the names and residences of the debtor's creditors, 
 and within five days from the date of assignment to convene a 
 meeting of the creditors for the appointment of inspectors and 
 the giving of directions with reference to the disposal of the 
 estate.by mailing prepaid and registered to every creditor known 
 to him, a circular calling a meeting of creditore to be held in his 
 oftice or some other convenient place to be named in the notices 
 not later than twelve days after the mailing of such notice, 
 and by advertisement in the Ontario Gazette ; and all other 
 meetings to be held shall be called in like manner. R. S. 0. 
 1887, c. 124, s. 16. 
 
 1 8. — (1) In case of a request in writing signed by a majority 
 of the creditors having claims duly proved of $100 and up- 
 wards, computed according to the provisions of section 20 of 
 
Sec. 20 (5) AHSIOXMKNTS nv IXHOLVKNTS. 
 
 Chap. 147. 
 
 458 
 
 this Act, it shall ho the «hity of the assijrnei' within two days 
 aftor receiviiio; such n'(|uest, to call a iint'tiiij^ of the civditors 
 at a tiiiie not later than twelve (hiys after the assi^iiiee receives 
 the re(|iiest. In case of ilefanlt the assij^nee shall lie liahle to a 
 penalty of 825 for every tlay after the expiration of the t'uxw 
 limited for the call ini^ of the nieetin<^ until the nieetinj^ is called. 
 
 (2) In case a sufHcient number of creditors (h) not attend Tudgeto^'ive 
 the meeting mentioned in section 17 of this Act, or fail to <nve '"^-LtioiiH m 
 directions with reference to the disposal of the estate, the attend. 
 
 Jud<i;e of tlic County Court may give all necessary directions 
 in that behalf. R. S. O. 1«S7, c. 124, .s. 17. 
 
 19. At any meeting of creditors the creditors may vote Voting at 
 in person, or by proxy autliorized in writing, Ina no creditor """''■'"*^' 
 whose vote is disputed shall be entitled to vote until he has 
 filed with the assignee an affidavit in proof of his claim stating 
 the amount and nature thereof. R. S. 0. 1887, c. 124, s. 18. 
 
 ?J0. — (1) Subject to the provisions of section 8, all questions Scale of votes, 
 discussed at meetings of creditors shall be decided by the ma- 
 jority of votes, and for such purpose the votes of creditors shall 
 be calculated as follows : 
 
 Forevery claim of orover SlOO, and notexceeding $200. . 1 vote. 
 
 8200 " " $500.. 2 votes. 
 
 SoOO " " $1000.. 3 votes. 
 
 " additional .$1,000, or fraction thereof ... .1 vote. 
 
 (2) No penson shall be entitled to vote on a claim acquii*ed Upon claims 
 after the assignment unless the entire claim is acquired, but aagignmeift. *' 
 this shall not apply to persons acquiring notes, bills or other 
 securities upon which they are liable. 
 
 (3) In case of a tie the assignee, or if there are two CastiDg vote, 
 assignees, then the assignee nominated for that purpose ]iy 
 creditois, or by the Judge, if none has been nominated by 
 
 the creditors, shall have a casting vote. 
 
 (4) Every creditor in his proof of claim shall state whether Creditors to 
 he holds any security for his claim or any part thereof ; and if y.*'""^ *'^'="''" 
 such security is on the estate of the debtor, or on the estate of 
 
 a third party for whom such debtor is only sec onda rily liable, 
 he shall put a specified value thereon and the assignee under 
 the authority of the creditors may either consent to the right 
 of the creditor to i-ank for the claim after deducting such valu- 
 ation, or he may require from the creditor an assignment of 
 the security at an advance of ten per cent, upon the specified 
 value to be paid out of the estate as soon as the assignee has 
 realized such security ; and in such case the difference betw^een 
 the value at which the security is retained and the amount of 
 the gross claim of the creditor shall be the amount for which 
 he shall rank and vote in respect of the estate. 
 
 (5) If a creditor holds a claim based upon negotiable instru- Right to re- 
 ments upon which the debtor is only indirectly or seconclarily t^^^ cages*'' 
 liable, and which is not mature or exigible, such creditor shafi 
 

 454 
 
 Chap. 147. 
 
 ASSIGNMENTS BY INSOLVENTS. SeC. 20 (5). 
 
 When creditor 
 holding 
 security fails 
 to value same. 
 
 be considered to hold security within the meaning of this 
 section, and shall put a value on the liability of the party 
 primarily liable thereon as being his security for the payment 
 thereof ; but after the maturity of such liability and its non- 
 payment, he shall be entitled to amend anil revalue his claim. 
 R.S. (). 1887,c. 124,s. 19. 
 
 ((0 111 case a person claiming to be entitled to rank on the 
 estate assigned holds security for his claim or any part thereof, 
 of such a nature that he is recpiired by this Act to value the 
 same, and lie fails to value such seciu-ity, the Judge of the 
 County Court of the county wherein the debtor at the time of 
 making the assignment resided or carried (m business, may, 
 upon summary application by the assignee or by any other 
 person interested in the debtor's estate, of which application 
 three clays' notice shall be given to such claimant, order that, 
 unless a specified value shall be placed on such security and 
 notified in writing to the assignee within a time to be limited 
 by the order, such claimant shall, in respect of the claim, or 
 the part thereof for whicli the security is held, in case the 
 security is held for pait only of the claim, be wholly barred 
 of any right to share in the proceeds of such estate ; and if a 
 specified value is not placed on such security, and notified in 
 writing to the assignee according to the exigenc}' of tlie said 
 order, or within such further time as the said Judge may be 
 subsecjuent order allow, the said claim, or the said part, as the 
 case may be, shall be wholly barred as against such estate but 
 without prejudice to the liability of the debtor therefor. 59 V. 
 c. 3 1 , s. 3. 
 
 Proof of claim HI. — (1) Every person claiming to be entitled to rank on the 
 estate assigned shall furnish to the assignee particulars of his 
 claim proved by affidavit and such voucheis as the nature of 
 the case admits of. 
 Limitinsr time (2) In case a person claiming to be entitled to rank on the 
 claim.'"' ° estate assigned, does not within a reasonable time after receiving 
 notice of the assignment and of the name and address of the 
 assignee, furnish to the assignee satisfactory proofs of his 
 claim as provided by this and the preceding sections of this 
 Act, the Judge of the County Court of the county wherein the 
 debtor at the time of making the assignment resided or carried 
 on business, may, upon a summary application by the assig-nee 
 or by any other person interested in the debtor's estate (of 
 which application at least three days' notice shall be given to 
 the person alleged to have made default in proving a claim as 
 aforesaid), order that unless the claim be proved to the satis- 
 faction of the Judge within a time to be limited by the order, 
 the person so making default shall no longer be deemed a 
 creditor of the estate assigned, and sliall be wholly bai-red of 
 any right to shai'e in the proceeds thereof ; and if tlie claim is 
 not so proved within the time so limited, or within such 
 further time as the said Judge may by subsequent order allow. 
 
SoC. 23 (2) ASSIONMEXTS BY INSOLVENTS. 
 
 Chap. 147. 
 
 455 
 
 the .same shall be wliolly barred, and the assignee shall be at 
 liberty to distribute the proceeds of the estate as if no such 
 claim e.KJsted, but without prejudice to the liability of the 
 debtor therefor. 
 
 (8) The preceding subsection is not intended to interfere Not to inter- 
 with the protection affbi'ded to assignees, by section 38 of ^'/'<^ ^ev ^'tat 
 TruMee Act. c m. 
 
 (4) A pei'son whose claim has not accrued due shall never- Creditor may 
 theless be entitled to prove under the assignment and vote at P"'^? '''*"" 
 meetings of creditors, but in ascertaining the amount of any 
 such claim a deduction for interest shall be made for the time 
 which has to run until the claim becomes due. R. S. O. 1887, 
 c. 124, s. 20 (1-4.) 
 
 2!i. — (1) At any time after the assignee receives from any 
 person claiming to be entitled to rank on the estate, proof of his 
 claim, notice of contestation of the claim may be served by the 
 assignee upon the claimant. Within thirty days after the 
 receipt of the notice, or such further time as ti, Judge of the 
 County Court of the county in which the assignment is regis- 
 tered may on application allow, an action shall be brought by 
 the claimant against the assignee to establish the claim, and a 
 co])y of the writ in the action or sununons in case the action is 
 brought in a Division Court shall be .served on the 
 assignee ; and in default of such action being brought and writ 
 or summons served within the time aforesaid, the claim to rank 
 on the estate shall be forever barred. 
 
 (2) The notice by the assignee shall contain the name and 
 place of liusinoss of one of the solicitors of the Supreme Court 
 of Jvidicature for Ontario, upon whom service of the writ 
 or summons may l)e made ; and service upon such solicitor 
 shnll be deemed sufficient service of the writ. R. S. 0. 1887, 
 c. 124, s. 20 (5). 
 
 'Hi. — (I) In case the a gnee is satisfied with the proof 
 adduced in support of a claim, but the debtor disputes the 
 sauie, such debtor shall do so by notice in writing to the 
 assignee, stating the grounds upon which he disputes the 
 claim ; and such notice shall be given within ten days of such 
 dcbtoi's being notified in writing by the assignee that he is 
 satisfied with the proof adduced as at'oi'esaid, and not after- 
 wards unless by special leave of the said Judge. 
 
 (?) If upon receding such notice of dispute the assignee 
 does not deem it proper to require the claimant to bi-ing an 
 action to establish his claim, he shall notify the d(!btor in 
 writing of this fact, and tlM> dobtor may thereupon, and within 
 ten days' of his receiving such notice, apply to the said Judge 
 for an order re(]uiring the assignee to serve a notice of con- 
 testation. Th(! Judg(! shall only make such order if after notice 
 to the a.ssignee the Judge is of opinion that there arc good 
 grounds for contesting the claim. In case the debtor does not 
 make an a])plication as aforesaid the decision of the assignee 
 shall as against him be final and conclusive. 
 
 Contestation 
 of claim. 
 
 Procedure 
 wliere 
 aRHigneeia^ 
 BatlHfied with 
 proof of claim 
 and debtor 
 desires to 
 dispute same. 
 
456 
 
 Cliap. 147. ASSIGXMENTS MY INSOLVENTS. 
 
 Sec. 23 (3). 
 
 
 
 mi 
 
 Asaets uot to 
 be removed 
 out of the 
 Province and 
 moneys to be 
 deposited in a 
 hank. 
 
 Penalty. 
 
 Application 
 of section 
 limited. 
 
 Accounts to be 
 kept access- 
 ible. 
 
 Set off. 
 
 Affidavits. 
 
 (.'i) If upon tlio jipj.'.icution the claimant consents in wi-itinj^, 
 the Jucl<je may, in a ssunnnaiy mamier, decide the question of 
 tlie validity of the claim. 
 
 (4) If an action is brouf^ht by the claimant afjainst the 
 assignee the debtor may intervene at the trial, either personally 
 or by counsel, for the purpose of calling and examining or 
 cross-examining witnesses. 59 V. c. 31, s. 4. 
 
 '^4. — (1) No property or assets of an estate assigned under 
 the provisions of this Act shall be removed out of the Prcjvince 
 without th(! order of the Judge of the County Court of the c )iuity 
 in which the assignn\ent is registered, and the proceeds of the 
 sale of any such property or assets, jind all moneys received on 
 account of any estate shall be deposited by the assigni'e in one 
 of the incoi'porated banks within this Province, and shall not be 
 withdrawn or removed without the order of such Judge, except 
 in payment of dividends and other charges incidental to the 
 winding up of the estate. 
 
 (2) Any assignee or other person acting in his stead oi on 
 his behalf violating the provisions of this section shall b(; liable 
 to a pensilty of $500, which may be recovered sunnnarily before 
 a Judge of the High Court or before the Judge of the County 
 Court of the county iu which the assignment is recpiired to be 
 registered ; and one-half of the said penalty shall go to the 
 person suing therefor, and the other half shall belong to the 
 said estate ; but in default of payment of the said penalty and 
 all costs which may be incurred in any action or proceeding 
 for the recovery thereof, such assign(>e or other person may be 
 :" nprisoned for any period not exceeding thirty days, and siiall 
 be dis([ualitied from acting as assignee of any estate while such 
 default continues. 52 V. c. 21, s. 2. 
 
 ('}) This section shall not apply to any assignment executed 
 before the 23rd day of March, 1889, or to any proceedings 
 thereunder. 52 V. c. 21, s. 3. 
 
 ?J5. Upon the expiration of one month from the first meet- 
 ing of creditors, or as soon as may be after the expiration of 
 such |ieriod, and afterwards from i'u.io to time at intervals of 
 not more than three months, the assignee shall prepare, and 
 keep constantly accessible to the creditors, accounts and state- 
 ments of his doings as such assignee, and of the position of the 
 estate. R. S. 0. 1887, c. 124, s. 21. 
 
 'Hi. The law of set-off shall apply to all claims made 
 against the estate and also to all actions instituted by the as- 
 signee for the recovery of debts due to the assignor, in the same 
 maimer and to the same extent as if the assignor were plaintiff 
 or defendant, as the case may be, except in so far as any claim 
 for set-off shall be affected by the provisions respecting frauds 
 or fraudulent preferences of this or any other Act. R. S. O. 
 1887, c. 124, s. 2.3. 
 
 'i7. Any affidavit authorized, or required, under this 
 Act may bo sworn before any person authorized to administer 
 
 ,,4; 
 
Sec. 32. 
 
 ASSIGNMENTS BY INSOLVENTS. 
 
 Chap. 147. 
 
 457 
 
 affidavits in the High Court, ox- before a Ju.sticc of the Peace, 
 or, if sworn out of Ontario, before a Notary Public. R. S. 0. 
 1887, c. 124, s. 24. 
 
 "ZH. As large a dividend as can with safety be paid, shall be Dividends 
 paid by every assignee under this Act within twelve months ^^.''^ ''^ ^'^ 
 from the date of any assignment made thereunder, and earlier 
 if required by the inspectors ; and thereafter ii further dividend 
 shall be paid every six months, and more fretjuently if reijuired 
 by the inspectors until the estate is wound up and disposed of. 
 59 V. c. 31. s. 5. 
 
 2*1. So soon as a dividend sheet is prepared, notice thereof Notice of 
 shall be given by letter posted to each creditor, inclosing an dividei.d 
 abstract of receipts p.nd disbursements, shewing what interest 
 has been received by the assignee, for moneys in his hands, 
 together with a copy of the dividend sheet, noting thereon the 
 claims objected to, and stating whether anj' reservation has or 
 has not been made theiefor ; and after the expiry of eight days 
 from the day of mailing such notice, abstract and dividend sheet 
 as aforesaid, dividends on all claims not objected to within that 
 period shall be paid. R. S. O. 1887, c. 124. s. 22. 
 
 30. — (1) The assignee may, if he deems it advisable so to DistributinK 
 do, take the proceedings authorized by section 32 of The mor.ey» and 
 Creditors Belief Act to be taken by a sheriff', and in that case claims'as'pro- 
 sections 32 and 33 of the said Act shall apply to proceedings vided by Rev 
 for the distribution of moneys and determination of claims 
 arisino- under an assignment made under this Act. with the 
 substitution of "assignee" for "sheritt"" where it occurs in 
 said suction 32 ; and the substitution of " according to law " 
 for " as directed by this Act," where these w^ords occur in said 
 section 32 ; but this section shall not be construed to relieve 
 the assignee from mailing to each creditor the abstract and 
 other information required by section 29 of this Act to be sent 
 to creditors, so far as the same is not contained in the list sent 
 by him under section 32 aforesaid. 
 
 (2) The Judge of the (bounty Court of the county wherein 
 the debtor at the time of the as.signment resided or carried on 
 business shall Ix! tlu; Judge to whom applications under this 
 section shall be made. -59 V. c. 31, s. 6. 
 
 31. The assignee shall receive such remuneration as shall Remuneration 
 be voted to him by the creditors at any meeting called for the "^ ^^'''sr"'^®- 
 purpose after the first dividend sheet has been prejjared, or by 
 the inspectors, in case of the creditors tailing to provide there- 
 for, subject to the review of the County Court of the county in 
 wiiich the assignment is registered or the Judge thereof , if com- 
 plained of bv the assignee or any of the creditors. R. S. O. 
 1887, c. 124,^ 11 (1). 
 
 JJ??, In case the remuneration of the assignee has not been where remur.- 
 fixed imder the preceding .subsection l)efore the final dividend, erationnot 
 the assignee may insert in the final dividend sheet, and retain the final 
 
 dividand. 
 
 'I 
 
458 
 
 Chap. ]47. 
 
 ASSIGNMENTS BY INSOLVENTS. 
 
 Sec. 32. 
 
 «l 
 
 i 
 
 91 
 
 1 
 
 
 '-S 
 
 
 i 
 
 ■1' 
 
 
 1 
 
 
 a 
 
 
 
 
 as his remuneration, .a sum not exceeding five per cent, of the 
 cash receipts, subject to review by the Court or Judge as here- 
 inbefore provided; but no appiicution by the assignee to 
 review the said allowance shall be entertained, unle.ss the 
 question of his remuneration, previous to the preparation of 
 the final dividend sheet has been brought before a meeting of 
 creditors competent to decide the same. 59 V. c. ^^1, s. 8. 
 
 Remuneration lili. No assignee sliall make any payment or allowance to 
 of inspectors, .^j^ inspector beyond his actual and necessary travelling expenses 
 in and about his duties as inspector, except under the authority 
 of a resolution of the creditors passed at a meeting regularly 
 called, fixing the amount thereof, and in the notice calling the 
 meeting tlie fixing of the remuneration of the inspectors shall 
 be specially mentioned as one of the subjects to be bi'ought 
 l)efore the meeting. No inspector shall be allowed more than 
 foui' dollars a day besides actual travelling expenses, but may 
 l)e allowed less. 59 V. c. 31, s. 7. 
 
 I Examination 34. Where there has been an a.ssignment for the benefit of 
 empVovees"^ "' creditors the assignee, or assignees, upon resolution passed by 
 a majority vote of the creditors present or represented at a 
 meeting of the creditors of the assignor regularly called, or 
 upon the writte. request or resolution of the majority of the 
 inspectors of the estate, may without an order examine the 
 assignor or any person who is or has been an agent, clerk, 
 servant, officer or emploj'ee of anj- kind of the assignor, upon 
 oath before a master or local master or a special examiner 
 of the Supreme Court of Judicature, or before a local 
 registrar or deputy clerk of the crown of the High Court, or 
 before the Judge of the County Court of the county within 
 which such assignor resides, or before any official referee, or 
 may by the order of the Court or a Judge examine the assignor 
 on oath before any other person to be specially named in such 
 order, touching the estate and effects of the assignor, and as 
 to the property and means he had when the earliest of the 
 debts or liabilities of the assignor existing at the date of the 
 assignment was incurred, and as to the property and means he 
 still has of discharging his debts and liabilities, and as to the dis- 
 posal he has made of any property since contracting such debt 
 or incurring such liability and as to any and what debts are 
 owing to him. 58 V. c. 23, s. 6 ; 59 V. c. 31, s. 9. 
 
 35. The rules and procedure from time to time in force in 
 the High Court of Justice for the examination of judgment 
 debtors shall, as far as may be, apply to an examination under 
 this Act of an assignor in all respects as if the assignor were a 
 judgment debtor. 58 V. c. 23, s. 11. 
 
 im. In case such assignor does not attend as requii'ed by 
 the said appointment, or appointment and order, as the case 
 maj' be, and does not allege a sufficient excuse for not attend- 
 ing, or if attending, refuses to disclose his property or his 
 transactions respecting the same, or does not make satisfactory 
 
 Procedure 
 u])on exami- 
 nation of an 
 assignor. 
 
 When RB- 
 Rignor does 
 not attend or 
 refuses to 
 answer (jues- 
 tiong. 
 
Sec. 39 (3). 
 
 ASSIGN :.xi!;NTS BY INSOLVENTS. Chap. 147. 
 
 459 
 
 answers respecting the same, or if it appears from such exam- 
 ination that Hucli assignor has concealed or made awav with 
 liis property in order to defeat or defraud his creditors or any 
 of ihem, thj Court or Judge may order the assignor to be com- 
 mitted to I'ua common gaol of the count}' in whicli he resides, 
 for any term not exceeding twelve months. oS V. c. 23, s. 10. 
 
 J5I. — (1) Any person liable to be examined under section 34 Service of ap- 
 may be served with an appointment signed b) the Judge or po-ntment. 
 officer, or a copy thereof, and where the examination is to take 
 place under an order, also ^\ ith a copy of the order ; such • 
 
 ':;ervice to be made at least 48 hours before the time appointed 
 for the examination ; and the person to be examined is to be 
 paid the same fees as a witness. 58 V. e. 23, s, 8. 
 
 (2) The examination shall l)e conducted in the same manner Conduct of ex- 
 as in the case of an oral examination of an opposite party. «^"'*'>°°- 
 58 V. c. 23, s. 9. 
 
 38. Any person liable to be examined under section 34 may Compelling 
 be compelled to attend and testify and to produce books and and°pr*dm!- 
 documents, in the same manner and subject to the same rules tion of books 
 of examination, and the same consequences of neglecting to 
 attend or refusing to disclose the matters in respect of which 
 he may be examined, as in the case of a witness in an action 
 in the High Court of Justice. 58 V. c. 23, s. 7. 
 
 J{J>. — (1) In case any person has or is believed or suspected Calling upon 
 to hav«' in his possession or power any book, document, or {^^*°nforma- 
 paper oi ;my kind relating in whole or in part to the debtor, tion as to 
 his dealings or property, such person may, upon resolution ^^^"'q -jvg 
 passed by a majority vote of the creditors present or repre- evidence and 
 sented at a regularly called meeting of the creditors of the ^''°Q^°^gtc°°"" 
 assignor exclusive of such person (i Hie is a creditor) or upon 
 the written re(|uesfc or resolution of the majority of the inspec- 
 tors of the estate, be required by the assignee to produce such 
 statement or statements for the information of such assignee. 
 
 (2) In case .such person fails to produce the said book, docu- 
 ment or other paper within four da3^s of his being served with 
 a copy of the said resolution and a request of the assignee in 
 that behalf, or in case the assignee or the majority of the 
 inspectors is or are not satisfied that full production has been 
 made, the assignee may without an order examine the said 
 person before any of the offieers mentioned in section 34 of 
 this Act touching any book, document or other paper which he 
 is supposed to have received. 
 
 (3) Any such person maybe compelled to attend an:l testify, 
 and to produce upon his examination any book, doc iment or 
 other paper which under this section he is liable to produce in 
 the same manner and subject to the same rules of exr-mination 
 and the same consequences of neglecting to attend or refusing 
 to ilisclose the matters in respect of wliich he may be examined 
 as in the case of a witness in an action in the High Coui't of 
 Justice. 59 V. c. 31, s. 10. 
 
 >'l 
 
-160 
 
 ASSIGNMENTS BY INSOLVENTS. 
 
 
 w 
 
 ■1 
 
 NOTES. 
 
 Policy of the Act. This is one of the nets for carrying out the policj- 'of the 
 law that creditors of an insolvent person should siiare tlie assets ratably. The 
 Creditors Relief Act provides for a ratat)le <listril)ution 1)V the iSheritf without 
 the consent of tlie dehtor. This act provides for a distribution only when the 
 debtor conveys his assets over to a trustee for his creditors. * 
 
 Insolvency. Tlie ordinary legal and commercial meaning of In.solvency is 
 inability to pay (lel)ts as they mature. Parker v. (iossage (1827) 5 L. J. Ex. 4 ; 
 Re Muggeridgc (1H")8) Johns l}2.) Imt insolvency is not sliown liy proving non. 
 payment on demand of one debt; Doed. Galehouse v. Rees (1837) 4 Biug. N.C. 
 384. 
 
 The expressions contained in tiie act " insolvent circumstances" or " unable 
 to pay his del)ts in full ", or " knowing liini.self to l)e on the eve of insolvency " 
 are all referal)le to an inat)ility to pay in full if a (lel)tor's property were sold 
 under legal process at a sale fairly and reasonably conducted ; Dominion Bank 
 V. Cowan (1887) 14 O. R. 4(ir) ; Warnock v. Khepfer (1887) 14 O. R. 288, 15 A. 
 R. 324, 18 S. C. R. 701 ; l)ut the price actually realized after an assignment ia 
 not necessarily the value at the time of the impeached transaction, — any .sub- 
 sequent depreciating circumstances nuist be considered ; Clarkson v. .Sterling 
 (1887) 14 O. R. 400. A business sliould be treated as a going concern in testing 
 its solvency; Stuart v. Thom.son (1893) 23 O. R. 503. 
 
 Knowledge of Insolvency. Where a bona fide purchase for value is attacked 
 it must be proved that tliere was a concurrence of fraudulent intent upon the 
 part of the debtor and the purchaser ; Hicker.son v. Parrington(1891) 18 A. R. 
 635 ; Campbell v. Roche (1891) 18 A. R. (546, 654 ; and even where the lender 
 of money knew that the money was being borrowed solely for the jnirpose of 
 giving a creditor a i)reference tlie transaction lias lieen sustained ; Jolinson v. 
 Hope (1890) 17 A. R. 10 ; but if the raising of the money was but a part of a 
 scheme to give a preference, the whole transaction would be avoided ; Burns 
 V. Wilson (1897)28 S. C. R. 207, 
 
 The rule as to concurrence of intent has been applied to preferential securi- 
 ties given to creditors for antecedent delits ; Burns v. MacKay (1885) 10 O. R- 
 167 ; McRoberts v. Steinoff (1886) 1 1 O. R. 369 ; Johnson v. Hope (1890) 17 A. 
 R. 10. Wiiile the law cannot be said to be at all satisfactorily settled, it is 
 perhaps, still necessary to show that a preferred creditor knew at the time of 
 the impeached transaction that tiie delitor was in insolvent circumstances ; 
 Ashley V. Brown (1890) 17 A. R. 600 ; (iibbons v. McDonahl (1892) 20 S. C. R, 
 587, unless the transaction was purely voluntary ; Oliver v. McLaughlin (1893) 
 24 0. R. 41. 
 
 Knowledge of circumstances from which ordinary business men wouhl con- 
 elude that the delitor was unable to meet his liabilities is knowledge of insol- 
 vency ; National Bank of Australasia v. Morris (1892) A. C. 287 ; Tomkins v. 
 Saffery (1877) 3 App. Cas. 213, 237. 
 
 Collusive Judgments. It is difficult to state with any pretence to accuracy 
 under what circumstances a judgment will be ineffectual owing to the pro- 
 visions of the act. Tlie doubts are created by the recent decision of the 
 Judicial Committee of the Privy Council in P^dison General Electric Co. v. 
 Westminster Tramway Co. (1897) A. C. 193. That case was nn appeal from 
 British Columbia against a decision on a section exactly identical with s. 1. 
 The defendant in an action entered an appearance and the same day his attor- 
 ney consented to an order for judgment for the purpose of giving the plaintitl'a 
 therein priority tivera judgment about to be granted the same day at the suit 
 of another creditor. A similar device had been held in Ontario not to lie an 
 infringement on s. 1; Turner v. Lucas (1882) 1 O. R. 62.3. The instruments 
 known as "confession of judgment," " a cognovit actionem " and " a war- 
 rant of attorney to confess ju<lgment," were well known to the law, and 
 unless the judgment had been obtained by the u.se of one of them, the course 
 of decision was uniform that the intent to prefer did not render it inett'ectual. 
 Neither filing a rrlirta rcrificafione ; Heanian v. Seale (1881) 29 Gr. 278, nor 
 withdrawing a defence under s. 1 18 of the Division Courts Act ; Bailey 
 V. Bank of Hamilton (1894) 21 A. R. 156, were obnoxious to the section. 
 
 'ik. 
 
ASSIGNMENTS BY INSOLVENTS. 
 
 461 
 
 It was not (and probablj' is not) within the section to fail to take advantage 
 of the fact that the term of credit had not expired ; King v. Duncan (1881) '29 
 (Jr. 113 ; MacDonald v. Cromhie (1882) 2 0. R. 243 ; 10 A. H. 92, 11 .S.C.R. 
 107; liowerman v. Phillips (1888) 15 A. R. (579, nor to put in a defence to 
 one action and allow juilgment in another to go by default ; Labatt v. Bixel 
 (1881) 28 Gr. (593. 
 
 The words "by collusion" simply mean "by agreement" or " by acting" 
 in concert," and if by agreement witli tbe debtor and by means of some act or 
 consent on his part a judgment is obtained with intent to defeat other credi- 
 tors, or to give a preference, it is probable that such judgment cannot stand ; 
 Edison General Electric Co. v. Westminster Tramway Co. (1897) A. C. 193. 
 
 The section avoids confessions etc, given either voluntarily or by collusion. 
 Pressure would be an answer to an attack upon a confession upon the grourd 
 that it was given voluntarily, but it would be no answer to a case whicii alleged 
 collusion ; ib. 
 
 Preference. Preferences of one creditor over another are not forbidden 
 either at the common law or under the Statute of Elizal)eth ; Wood v. Dixie 
 (1840) 7 Q. B. 892; Holbird v. Anderson (1793) o T. R. 235 ; McMaster v. 
 Clare (1859) 7 Gr. 558. The giving of a preference is no offence against the 
 criminal law. Crim. Code s. 368. 
 
 Conveyances even to a creditor, which are not honestlj' made for the pay- 
 ment of del)ts, but for the purpose of defeating, hindering or delaying creditors, 
 are void both at the common law and under the (Statute of Elizalieth and the 
 giving of them is punisiiable as a crime. Crim. Code s. 3(59 ; R. v. Henry 
 (1891) 21 O. R. 113 ; Twvne's case (1601) 1 Sm. L. C. 1, 3 Coke 80. McDonald 
 V. Cummings (1895) 24 S. C. R. 321 ; Cummings v. Taylor (1895) 28 S. C. R. 
 337. 
 
 In England conveyances made with the intent of giving a preference were, 
 at an early period, void luidcr the Bankrupt Laws as constituting acts of 
 bankruptcy, and, upon bankruptcy supervening, the\' might l)e set aside. 
 
 Legislation against preferences was introduced in Ontario in 1858 by the 
 Indigent Debtor's Act 22 V^ict. c. 96, ss. 18,19. Only conveyances of per- 
 sonal property were thereby avoided. The statutes respecting preferences 
 since that time have been (omitting tiie amendments between the decennial 
 revisions of the Statutes) C. S.U.C, c. 26 ss. 17, 18 : R..S.O. (1877) c. 118 ; R. 
 S.O. (1887) c. 124 and R.S.O. (1897) c 147. From 1864 to 1880 the legislation 
 was unimportant because of the operation of the then existing Insolvency 
 Acts. 
 
 Pressure. A "preference" imports something done voluntarily — e.v niero 
 motii — not in the ordinary course of business and without any pressure or 
 demand on the part of the creditor. Nunes v. Carter (1866) L. R. 1 P. C. 
 342. 
 
 If, therefore, the conveyance is not tlie voluntary Act of the debtor, but he 
 makes it in compliance with a request from tlie creditor or from some influence 
 whicli dominates his will, it is not, .strictly speaking, a preference. It is tlien 
 said to liave been made under pressure. A security given under pressure must 
 be attacked witiiin (50 days from the time of giving it, otlierwise it cannot be 
 set aside merely upon the ground of preference. S. 2 (4) ; Beattie v. Wenger 
 (1897)24 A. R. 72. 
 
 It is diflicult to say what is pressure sutHcient after 00 days to maintain a 
 conveyance otlierwise invalid. A mere re(juest by the creditor for security 
 has over and over again held to be suHicient. Brayley v. Ellis (1882) 1 O. R. 
 119, 9 A. ]{. ■")(55; Totten v. Bowen (1882) 8 A. R. (502"; ^Sleriden Silver Co. v. 
 Lee (1882) 2 O. R. 451; Whitney v. Toby (1882)6 O. R. 54; McCrae v. 
 White (1883) 9 S.C. R. 22; Slater v Oliver (1884)7 O. R. I.j8 ; Powell v. 
 Calder (188."))8 O. K. 505; Ivev v. Knox (1885) 8 O. R. (535; Davies v. (iil- 
 lurd (1891) 21 O. R. 431, 435, 436, 19 A. R. 432 ; Stephens v. McArthur (1H91) 
 19 S.C.R. 446; Wel)ster v. Crickniore (1898) 25 A. R. 97. But of lateyeais 
 tiie tendency haslTeun to probe beneath the mere form, and to ascertain if the 
 dominant motive of tlie dcl)tor was to overcome the pressure or to give a jire- 
 fercnee; Ex iiarte Hall (1882) 19 Cli. D. 580; Tomkins v. Satl'ery (1877) 3 
 App. Cas. 213, 225 ; Re Bell (1893) 10 Mor. 15. The doctrine of pVessurc is ll 
 fkut applicable where insolvency exists to the knowledge of both parties, " ' 
 Breese v. Knox (1897) 24 A. R. 203. 
 
462 
 
 ASSIGNMENTS BY INSOLVENTS. 
 
 
 ik\ 
 
 
 It may be that the foUowing statement by the late Chief Justice Spragge 
 expresses wlirt tlie hiw really is ; — " It must of course aj)pear that tiie jjres- 
 siire is real, not a feigned contrivance l)etween tiie creditor and del)tor to wear 
 the aj)i)earance of pressure wiiile tlie real desire and intention is to give a pre- 
 ference" Cleiiniiow V. Converse (ISO!)) l(i (ir. .")47, •>49. 
 
 For a complete In'ief on pressure see .'{.) C.L.J. 322. 
 
 Motives Negativing Intent to Prefer. When a conveyance by an insolvent is 
 attacked, — or lie makes an assignment for tlie benefit of creditors, — within (50 
 days, the conveyance is presumed to have been made with the obnoxious 
 intent. The presumption is a rebuttable one — the revisei's of the Statutes 
 having introduced tlie words "/>/•(' /»((_/'fc(V". into s. 2 (3) (t). Pressure will not 
 sutticiently rel)ut tlie presumption liccause of the concluding words to those 
 sub-sections " whctlicr tlie same be nnule voluntarily or under pressure." 
 
 The following matters will, it is submitted, still be sutticient to rebut the 
 presumption. 
 
 (1) An agreement to give security; Clarksoii v. Sterling (1887) lo .V.R. 234; 
 Kmlmry v. West (1887) l."> A.U. 357; Lawso n v. McOeoc li (1803) 2(> \.\\. 
 401, tluaigii insullicicnt tosii))port an aiTiTlll fnl' sp^^cihc pPrformaiue ; llo])e 
 v. May (18it7) 24 A.U. l(i; Montgoinciy v. Corbit (18!(7)24 A.U. 311 ; Imt 
 the agreement must lie clearly and distinctly made out; Welistcr v, (.'rick- 
 i jiore (18!(8) 2."> A.U. 97, and the taking of the security must not beTlelib- 
 ci'ateh' postponed so as to maintain tlie (lel)tor's credit, or to avoid the 
 statutory iHesumption ; Kx parte Fisher ( 1872) L.R. 7 Cli. <i3(); Clarkson 
 v. Sterling (1887) lo A.M. 234; Clarkson v. McMaster (ISIK")) 'Ir, S.C.R. 
 SW; Brecse V. Knox (18!I7) 24 A.R. 2()3; We)ister v. Crickmore (18!IS)2.) 
 A. R. !(7, and if it atl'ects Chattels within the Chattel Mortgage Act it must 
 be registered, see R.S.O. c. 148, s. 11 xnpra p. ,337 ; l)ut registration will 
 not necessarily make it valid; Breese v. Kno.x (1897) 24 A.R. 203. 
 
 (2) A oonveyance made by a trustee even witliout the knowledge of his 
 rtstiii (/hi: h'ii'<l to re])lace trust funds niisajiprojiriated bv liini; Re Xew, 
 Prance and Carranl's Trustee v. Hunting (1897) 1 ().li. (ii)7, (1897) 2 (^B. 
 19; Kx iiarte Taylor (188(i) 18 Q.B.I). 29.5; Fx parte Stulibins (1881)17 
 Ch. 1). "18; Molsons Bank v. Halter (1890) 18 S.C.R. 88. 
 
 (3) An assignment made liy a solicitor to jirevent an order striking him oft 
 the roll from being enforced; Grant v. VaiiNorman (1S82) 7 A.R. 520. 
 
 (4) A tran.sfcr of funds by a Township Treasurer to the Township's account 
 to re])lace funds which he had comerted to his own use; Halwell v. Wil- 
 mot (Townsliip) (1897) 24 A. R. 028. 
 
 (")) A transfer to escape a criminal prosecution ; Y>c Tastet v. Carroll (1815), 
 1 Stark 88. 18 R.R. 748. 
 
 (0) Taking a new chattel mortgage instead of renewing a former one ; Rogers 
 V. Carroll (1899) ») O.R. 328. 
 
 Property Within S. 2. S. 2 refei's only to exigible pro])erty. By this how- 
 ever is not meant such property only as can be reached by a lirri fad .. All 
 property real and personal, (exce))t money paid to a creditor) whicli creditors 
 can reacii by any jirocess, is within its .scope, e. g. Book debts, wliich can only 
 lie readied i>y garnislimciit; Labatt v. Bixel (1881) 28 (ir. 593; Warnock '. 
 Kloepfcr ( 1887) 15 A. R. 224; 18 S.C. R. 701 ; and lands and funds wiiicli can be 
 made available only by e(|uitalile execution. Tiie clieque of a tliird person is 
 not money; David's. in v. Fraser (189(i) 23 A.R. 439; 28 S.C.R. 272. 
 
 An assignment of insurance policies after loss has been set aside; Ivey v, 
 Knox (1885) 8 O.R. ()35. 
 
 But an assignment of expected profits o«t of a pendi;:g contract could not be 
 impeached ; Blakely v. (iould (1897) 24 A.R. 153, 27 S.C.R. 082, nor, it is sub- 
 mitted, an assignmeir • sahiry nirt yet earned; Holmes v. Millage (1893) 1 
 y.B. 551, nof an assif ■ .-nt of future liook <lel)ts, nor giMKls not yet acquired. 
 
 Failure by a debtor to accept a legacy is not an act which contravenes the 
 provisions o'f the Statute ; Bain v. Malcolm (1887) 13 O. R. 444. 
 
 Persons Entitled to the Benefit of the Act. Only creditors and assignees for 
 the benefit of creditors are entitled to impeach transactions, as void under the 
 Act; Oliver V. McLaugldin (1893)24 O.R. 41. After an assignment for the 
 benefit of creditors l .e right of suing belongs exclusively to tlie assignee ; S. 9. 
 
 Il 
 
ASSIGNMENTS BY INSOLVENTS. 
 
 463 
 
 The Statute 13 FAh. c. 5 avoids convej'ances, etc., contrived to delay, etc., 
 cieditors and others of their actions, suits, damages, etc., and is therefox'e 
 wider. 
 
 A ])liiintitr in an action of toi't is not liefore judgment a (.'ri-ditor, and tlu- act 
 gives him no liglit to im|)i'a( h transactions ciuercd into l)efore ills recoverv of 
 judgment ; Cauu-ron v. Cusacii (ISiM)) 17 A.H. 48<); A^lilcv v. Brown (1890) 17 
 A.K. .JOd; Gurofski v. Harris (lS!t(i) '27 0. K. -201, -J.S A. I'>." 717. 
 
 A creditor cannot ai)i)roliate a transaction as liy garnishing the proceeds of 
 a transfer and afterwaids attack the ti'ansfer; Wood v, Keesor (18!)5) 22 .\.R. 
 .57 : Beemer v. Oliver (1884) 10 A.K. 63(5; Rielle v. Reid (1899) 2(5 A.R. 34. 
 
 And a wrongdoer e. g. an auctioneer selling for the mortgagor the goods 
 comjirised in n mortgage cannot take advantage of the piovisions of the act l>y 
 setting U|) the rights of creilitois to attack a security ; .Johnston v. Henderson 
 (lS!l(i)2H().R. 2."). 
 
 Transactions not Voidable under the Act. The Act strikes only at gifts, 
 conveyances, transfers, etc., of iiropcrty of the debtor. Transactions which 
 may have the etl'ect of diminishing the debtor's assets nnist fall within the 
 prohibited class before they are voidable. 
 
 The following are instances of valid transactions : — 
 
 (1) The retention by a chattel mortgagee of the surjilus proceeds of sale to 
 a])|ilv ujxm an unsecured debt ; Stcjihens v. Boisscau (I89(i) 2;? A.R. 230, 
 2US;C.H. 4:J7. 
 
 (2) Purchasing a debt due bv an insolvent creditor and setting it oft against 
 the debt due to him ; Thi1)audeau v. (Jarland (180()) 27 O.R. 391. 
 
 (3) Making a lease bv tlie dei)tor to his creditors and allowing the rent to 
 pay the debt ; Smith v. Lawrence (1801) 27 C.L..J. llti. 
 
 (4) -Midving a ])aynient in money to a creditor, whether hmia Jiilc or for the 
 ))urp(ise of piefcrring hitn ; Campl)ell v. Roche (1891) 18 A.R. 046. The 
 transfer of a chei|ue of a t hird jierson is not a ])ayment in moiiev ; Davidson 
 v. Frasc r (1890)23 A.R. 439 ; 28.S.C.R. 2';2, but a ])ayment to'a bank by a 
 piTrclmscr from a debtor to the bank of the amount of its del)t by means 
 of the purchaser's cliec|\ie on the si^^ie bank is a i)avment in money ; 
 (ionlon v. Union Bank (1899) 19 C.L.T. 131 . If the etiect of the j)ayment 
 is to revive a .statute br.rre<l debt it is ncvertlicless good ; Re Lane (1S89) 
 23(,).B.l). 74. 
 
 The substitution of a |)urchaser"s notes for a vendor's notes in the hands 
 of a banker is a payment ; Building and Loan Association v. Palmer 
 (18S()) 12 O.R. 1. 
 
 (■")) Supi)lying materials under an agreement that the property is not to pass ; 
 Wellba'nks v. Heney (1890) 19 O.R. 549. 
 
 (0) Taking ixissession in iiiriliirn of chattels covered by a chattel mortgage ; 
 Bank of Hamilton v. Tamblyn U888) 10 O.R. 247, but see R.S.O. c. 148, 
 s. 40, ]). 34(i. 
 
 (7) A conveyance made in consideration of a j)rescnt Iioiki ^liilc advance of 
 money or sale of goods or other pioperty, if the coMsi<leration be fair and 
 rea.sonable, s. 3 (1). The words hoita Jidi; govern this exception^ and 
 where a chattel mortgage was given to secure money advanced to pay a' 
 creditor's claim, the .sanu; solicitor acting for all jjartieH, and the mortgage 
 being part of a scheme to obtain a ])ayment in money to the creditor, the 
 mortgage was set aside ; Burns v. \Vilson (1897) 28 tS.C.R. 207, l)Ut .see 
 the prior ca.se of (iibl,)ons v. Wilson (1890) 17 A.R. 1. Security given to 
 secure the jn'ico of a ))resent sale of goods will geneially be upheld ; 
 (iouhling V. Deeming (1887) 13 O.R. 201. A tiansaction is not hon<i lid' 
 if the transferee knows that a violation of the |,rovisions of the Act is 
 intended ; Butcher v. Steail (1873) L.R. 7 H. L. 839. But it is not neces- 
 .sary that the mortgagee or purchaser shmdd actually j)ay the nu)ney into 
 the hands of the debtor — ])ayment of it or a ])ai't of it to a (^editor by 
 direction of the del)tor will be sutlicient ; (;il)bons v. Wilson (1890) 17 
 A.R. 1 ; Joimson v. Hoi)e (1890) 17 A.R. 10; liordon v. Union Bank 
 (1899) 19 C.L.T. 131, and the giving of his own notes by the purcihaser or 
 
 ortgagee would, if linim jiilc, be tantamount to aiK'ancing the money 
 
 Building and Loan Associatibn v 
 
 Walker v. Xiles (1871) 18 (Jr. 210; 
 
 I'alnier (1880) 12 O.K. 1, 0. 
 
464 
 
 ASSIGNMENTS BY INSOLVENTS. 
 
 •4 
 
 A snle to a creditor who sets off his debt ns part payment is good if 
 hona Jiih ; Lowin v. Brown (18H4) 10 A.R. (m ; Bew v. Bill (lS(i7) 16 
 \V. R 700. If the ponvovanee Htates a false (umsideration, the onus of 
 proving a valualile cotisideration is on tiie transferee ; (Jignac v. Iler(lS98) 
 •2» O. K. 147, ufHrnied on appeal, 25 A.H. .393. 
 
 (8) A sale made bonti fith in the ordinary course to an innocent purcliases, 
 8.3(1). Only tlie purchaser need act boiui fidt; Mackintosh v. I'ogoso 
 (1893) 1 Ch. riOf). 
 
 (9) A debtor may provide for the payment of wages to persons in his eni- 
 ])lovmcnt whicli wouhl liave priority over tlie claims of other creditors 
 under H.S.O. c. 150 iii/rn. 
 
 (10) Where the transaction is a mere subntitution of securities, it will l)e 
 secure from attack unless the debtor's estate has thereby been lessoned in 
 value to the other creditors, s. 3 (5). 
 
 (11) Wiiere an advance is made to the debtor by a creditor in the liona Jide 
 belief that the advance wil' enable the debtor to continue business and 
 pay his <lebts in full, a security given for the advance and a pre-exiMting 
 debt will l)e unii::peachal)le, s. 3 (5). Kx parte King (1870) 2 Oil. I). 2."i0 ; 
 Kx parte Ellis (1870) 2 Cii. 1). 797. It is the lielief of the creditor not the 
 uncommunicatcd intention of t". j debtor or the result of the loan which is 
 the governing test ; Kx parte .lohnson, Re Chapman (1884) 20 Ch. 1). 338. 
 i:.4 parte Wilkinson, Re Berry (1883) 22 Ch. I). 788 ; Adminiatrator- 
 (Jeneral of Jamaica v. Lascelles (1894) A.C. I.S."). The belief of the debtor is 
 no factor in determining the validity of the security ; Long v. Hancock 
 (1885) 12 A.R. 137 ; 12 S.C.R. 532. 
 
 The new advance shmdd be substantial as its smallness would be strong 
 evidence that it was merely a factor in a device to obtain security and 
 that the creditor had no honest belief in its rc(|uired efticiency. I : vman 
 V. Cuthbertson (1880) 10 O.R. 443 ; Kalus v. Hcrgert (1870) 1 A.K. 75 ; 
 Miller v. Reid (1879) 4 A.R 479 ; Ross v. Dunn (1889) 10 A.R. 552, 
 
 Paving oft'otlier claims against the debtor and taking security therefor, 
 and for a pre-existing debt is not such an advance as is protected by the 
 chaise under consideration ; Boyd v. (ila.ss (1883) 8 A.R. 0.S2. 
 
 (12) Failing to accept a legacy ; Bain v. Malcolm (1887) 13 O.R. 444. 
 
 (13) An assignment in trust to pay all creditors ratably, s. 3 (1). See iii/ra. 
 
 (14) Security given or agreed to be given to a surety or emhjrser at tlie time 
 of the creation of the latter's obligation ; Kerry v. James (1894) 21 A.R. 
 338, unless the becoming surety is a mere device to prefer a creditor ; 
 Powell V. Cahler (1885) 8 O.R. 505. Security given to a suretj', except in 
 pursuance of such an agreement, at any other time than when lie assumes 
 his obligation, is now sul)ject to the same grounds of attack as if the surety 
 were actually a creditor. Before 1892 tiiis was not so; Hope v. (Jrant 
 (lS91)20O.k. 023. A payment in money by the debtor to <i creditor 
 whicli has the ett'oet of rclc.ising the surety from his obligation is still 
 ertcctual ; Harvey v. McNaughton (1884) 10 A.R. 010. 
 
 Qiviiig up Security. Where in consideration of obtaining the irnpcaciied 
 security, anollier security is given up, the creditor is entitled to have the 
 security restored, or its value made good, before or as a condition of setting 
 the security aside, s. 3 (4) But the security to be returned must l)e one uiwii 
 the debtor's property sucli as tlie creditor would be bound to value, and if the 
 latter, upon receiving the new security shoi^d have given up a note of the 
 debtor endorsol by a surety for him, the cre<litor M-ouhlnot be entitled either 
 to a return of the note, or to another note endorsed by the same surety ; 
 Bcattie v. Wenger (1897) 24 A. R. 72. 
 
 Method of Attack. When an assignment is made for the benefit of creditors, 
 the attack upon any transfer must be by the assignee, or in his name. When 
 there is no assignment tlie attack may be made by an oxecuti<*i creditor, 
 either by a seizure under the executioB, or by an action to have the impeached 
 transactions declared void, or tlie attack may be made liy a .similar action 
 brouglit by a simple contract creditor, siring on behalf of himself and all other 
 creditors of the debtor. In the event of his success his costs between solicitor 
 and client will be a first charge on the property I'ecovercd ; Macdonold v. 
 McCall(1887) 12 P. R. 9 ; Burns y. Wilson (1897)'28 S. C. R. 207 ; Webster v. 
 Crickmore (1898) 25 A. R. 97. 
 
ASSIONMKNTS BV INSOLVENTS. 
 
 4G5 
 
 An iiiturploadur {hhuo is ii piocriMlinji; within the meaning of the 00 diiy 
 limit in h. 2 (3); Colo v. I'orteous 1!) A. R. III. 
 
 Thu ilehtor is not a iiocessary party to an nctimi liy an aHHignec for tlie bene- 
 fit of creditors, Heattie v. VVcnger (1897) 24 A. R. 72, hut ho has lioen hold to 
 ho a nooessary partj- to an notion hy a sini])lo oontraot oredit<ir ; (iihhons v, 
 Darvill (1S88) 12 I'. R. 478, hut whether there is any real distinotion u|)on tho 
 point hotweon the two aotions seonis open to douht. 
 
 Bale by Transferee Following Proceeds. Altlioiigh the statute doolares tiiat 
 ol)iii)xiouH tranaaotions shall "lio utterly void" the expression means nothing 
 more than " voidable.'" They are void only as against creditors, and until tho 
 creditors elect to avoid thoin, tiioy remain g(M>d ; MeridiMi Hrittania Co. v. 
 Bradon (1804) 21 A. R. 352. A good title may thorof()re bo conferred ujKm a 
 hoiiii H'iIk purchaser from tho preferred creditor or other trai feroe ; Davis v. 
 Wickson (1882) 1 O. R. ;«i<» ; .Stuart v. Tronmin (1882) 3 (). R. liK); RioUe v. 
 Reid ( 1899) 2() A. R. .■■)4 ; Re Vansittart ( 1893) 2 Q. B. 377 ; Re Rrall, Kx parte 
 Noiton (1893) 2 Q. H. 381 ; Ro Carter and Kenderlino (1897) 1 (-'li. 77'i Until 
 recently a preferred creditor was not liable to accoinit for the proceeds except 
 to an assignee for the l)enetit of creditors; Robertson v. Holland (1888) 16 
 O. R. ")32 ; Tennant v. (Jallow (1894) 25 (). R. 50, an<l creditors wore there- 
 fore without remedy when tlie debtor made no mwh assignment ; Stuart v. 
 Tremain (1882) 3 O. R. 1!M), but moneys received from tlie sheriff under an 
 oxooution wore ordoriid to 1)0 paid to an atta(^king judgment creditor ; Martin v. 
 McAlpine (1883) 8 A. R. 075, and book debts collected ]>onding an action to 
 sot aside a transfer thereof won; ordered to be accounted for ; Labatt v. Bixol 
 (1881 ) 28 Gr. 593, and where a transfer of property was not made to prefer 
 l)Ut to defraud creditors, tho transferee was adjudged to iiold the jiroceeds in 
 trust for creditors, and was ordered to account ; Masuret v. Stewart (1891) 22 
 (). R. 290. 
 
 The procoods may now be followed in all cases whether an assignment has 
 been made or not, see s. 10. If a numl)er of creditors have been preferred by 
 a transfer to a trustee for them, who has realized and paid ovoi- each creditor s 
 share of the money to him, an action may bo maintained against each creditor 
 for tlie money so rocoivo<l witliout setting aside the transfer ; Boattie v. 
 Holmes (1898) 2i) O. R. 204, and wiien tho amount received is within tho jur- 
 isdiction of tlie Division Court the action niaj' bo maintained therein, ih. 
 
 Where no sale has been made, but tho transferee has collected l)ook debts, 
 under an assignment wliich is successfully attacked, ho must account for tho 
 moneys collected; s. 10 ; .see Meliargv. Lumbers (1890) 23 A R. 51, which has 
 been adopted as law on the revision of the Statutes. 
 
 Assignments. An assignment for the benefit of croditor.s is simply a convey- 
 ance of real or personal property, or both, to a trustee upim trust to distribute tho 
 proceeds thereof, among tho creditors of the assignor. Such assignments were 
 well known at common law; Atty-tJon for Ontario v. Atty-(ieii for Canada 
 (1894) A. (". 189, and the rules of oijuity resjiocting trusts and tlie onforconiont 
 tli.ercof, and the statutory provisions respecting triLstoes are all applicable to 
 .-.-icli assignments. The assignments are not, therefore, the creation of tho 
 Statute, nor are tho rights, obligations or duties of the parties thereto or the 
 rentiiis {Jilt- triiit governed solely thereby. An a.ssignnieiit to be valid as against 
 creditors must be made to a resident within Ontario for the purpose of paying 
 ratal)l\' and proportionately, and witliout jiroforence or priority a// tho credi- 
 tors of the debtor their just debts ; s. 3(1) An exception as to priority may 
 he made in respect of such wages due to parties in the employment of the debtor 
 as are entitleel to priority ; s. 3 (5). When any assignment is niado for tho 
 authorized purposes, it iioconies subject to the act, whether all the propertj' of 
 the debtor is included or not. An assignment may be sot aside as invalid if 
 its purpose is to defeat, hinder or delay creditors in the recover}' of their debts ; 
 Whitman v. Union Bank of Halifax (1889) 10 S. C. R. 410; see Taylor v. 
 Cummings (1897) 27 S. C. R. 589 ; Cummings v. Taylor (1898) 28 S. C. R. 337. 
 Such purpose may bo inferred if it attempts to imjiose unreasonable ccmditions 
 or terms upon the creditors — such as a release o/ the debtor ; Darling v. McLityre 
 (1800) 19 U. C. R. 154; Crappor v. Pattor.son (1800) 19 U. C. R. 100; or a 
 direction to carry on bu8ine.s.s indefinitely ; Gallagher v. (ilass (1882) 32 C. P. 
 041 but not a mere discretionary power Alexander v. Wavell (1884) 10 A. R. 
 135 and power may be given to the trustee to carrj' on tho business so that it 
 mav 1)0 sold as a going concern; O'Brien v. Clarkson (1884) 10 A. R. Ot)3 ; 
 Jennings v. Moss (1884) 10 A. R. 09t5 ; Slater v. Hadenach (1884) 10 S. C. R. 
 2i)0 and to .sell on reasonable credit ; Ontario Bank v. Laniont (1883) 6 O. R. 
 147. 
 
 El 
 
466 
 
 ASSI0NMENT8 BY INHOLVENTS. 
 
 « i 
 
 i 
 
 c 
 
 JO 
 
 S 
 
 Assent to ARslgnment. A creditor wlm luccptH |mynient of a divideiitl ; 
 Ik'i'iiuT V. OliviT (1HH4) 10 A. K. tioti, or who utti'iids a nu'ctiiig callfd tiy the 
 HMMigiief. iiiid ii(io|itH ii iii)|>oiiitiiieiit iis Iii.s|ifctor ; (iardiior v. Klo-pfcr (lSH-1) 
 7 O. H. (tO.'< caiiiiot Hiio I'l'd in an attack tipoii tiic nssiL(inii(Mit an invalid, lint 
 if lie Hliould fail in hucIi a proceeding npon (lie ground of Ihh ac(piiescenco, ho 
 will not, liecuiiHe of the attack, lone liis right to dividends ; Klu'pfer v, (iardner 
 (IHS(i) H» (). H. 41."), 14 A. K. («», 1.-) ,S. '.'. Ii. ;«»(». 
 
 Defects In Assignments. Power is given to amend any mistake, defect or 
 iniiierlVction in an assignment which is capalile of amendment or correction in 11 
 summary way ; s. \2. When the assignment <le»ignedly omitted any ri^ference 
 to real property, it was held that it could not lie amended; IJlain v. I'eaker 
 (ISH») 18 O.K. KHt, and it u '\y lie that piiivisions which would liave the 
 otleet of invt.lidating an assigi'.nent cannot lie struck out unless circumstances 
 can lie shewn which would iic mitticiont in other cascH to obtain a reformation 
 of the instnimeiit. 
 
 Revocation of Assignments. A de' cannot he compelled to make an 
 assignment. An a.ssignmciit which known of or assented to liy a creditor 
 
 is revocable ; Cooper v. Dixon (1S8 . K. ">() ; but as soon 11s an assign- 
 
 ment is assented to by a single cred., . comnnuiic.ited to a creditor anil not 
 
 dissented from, it is irrevociiiile, whether executed liva creditor or not ; Nolan 
 V. Donnelly (1883) 4 O. K. 440 ; Nelles v. Maltby (1883) ,', O. R. '2Ki ; He Unitt 
 and I'rott (18!)2) •S.i O. H. 78; except that if the assignment be not made to 
 tlie proper Slu rifl' or to an assignee consented to by the rerpiired numlier of the 
 debt<ir's creditors, it may be superseded by a subseijuent assignment to such a 
 jierson ; Anderson v. (ilass (1880) 10 O. R. .Wi, unless the consent of the 
 re(|uired numlier of creditors has in the meantime been obtained to the lirst 
 assignment ; Hall \. Fortye (188!)) 17 O. R. 435. 
 
 Position Of Sheriff as Assignee- An a.ssignee may refuse to accejjt an assign- 
 ment, in which case it woidd be proper for him to disclaim. But a sheritf, 
 being a jiublic otiicer, must accept, and cannot disclaim ; Brown v. (irove (1880) 
 18 O. R. 311 ; but he is not compelled to act until his costs are paid or tondereil 
 8. 14 (4). 
 
 Registration of Assignment. Failure to register an assignment will not affect 
 the title of the a.ssignee to the real or chattel property comprised in it, except 
 tL..it a hovd Jide pureha.ser for value, without actual notice of the assigimient, 
 who registered a conveyance of land before the registration of the assignment, 
 would thereby aciiuire priority ; ss. .5, 13. An assignee who fails to register 
 the assiginnent in the ottico of the proper County Court Clerk, or to give pro- 
 ))er notice by advertisement thereof is liable to penalties in a summary pro- 
 ceeding; 8. 14 ; but if the assignment is to pay a fixed composition to creditors 
 and the remainder to the debtor it is not within the Act ; Gundry v. Johnston 
 (189(})28 0.R. 147. 
 
 Description of Property. An assignment containing the worils of description 
 mentioned in s. .5 is thereby declared to vest in the assignee all the real and 
 personal estate, rights, property, credits and effect whether vested or con- 
 tingent, belonging to the assignor, except exemptions. It would seem, how- 
 ever, to be doubtful if it would pass immoveable propert}' out of the province ; 
 MacUonaldv. Georgian Bay Lumber Co. (1878) 2 S. C. R. 364; It would 
 not pass the benefit of a covenant of indemnity where the assignor's estate has 
 suffered no damage; Ball v Temant (1894) 21 A. R. (502.; but see Re Perkins, 
 Poyser v Beyus (1898) (2 Ch. 182,) or the interest of the assignor in fundsnot 
 exigible; Re Unitt and Prott (1892) 230. R. 78. 
 
 The description would carry shares in a joint stock company, or a bank, and 
 also terms of ; e." ""• Shares not fully paid up in a Company carry with them 
 a liability for the amount unpaid ; shares in a bank, though fully paid, a liabil- 
 ity to creditors, in the event of liquidation; and terms of years a liability upon 
 covenants running with the land, including a liability for rent ; White v Hunt 
 (1871) L. R. Ex. 32. In well-drawn assignments these things are excepted, 
 and the assignor declares himself trustee thereof for the assignee, and appoints 
 the assignee attorney to sell and transfer them. Re Hughes, Ex parte 
 Hughes (1893) 1 Q. B. 595, 601. 
 
 Exemptions. For list of exemptions see R. S. O. c. 77 as amended and notea 
 thereon pp. 317, 318, 328. 
 
 Possession by Assignee. The assignee should at once take possession of the 
 property assigned. But the propertj' does not thereby become in eiintodia 
 
ASSIONMENTS HY INSOLVENTS. 
 
 467 
 
 /ff/iV It limy lit" Kci/.i'd for ri'iit or taxi's while on the (li'iiiiHcil pri'Miin »; 
 Karrt'tt V Kfiit (IHS7) 1 "> (). H. i). The aKsijjnnx'iit will aiiin\iiit to an aliena- 
 tion wit'iin tlu' iiifiiniii}; of tin- Statutory conilitionM respect inj( tire insiiraneo ; 
 K. S. (). e. 2(t.'J s. ItiH, and the assigMee should therifore le-inNiire the |)ro|M-rty. 
 or get the IiiHUrer's eonsent to the alienation. -An asHignee who refu.ie.s to 
 d'livcr up poHHuMHion of ehattelH .vliieli another |ierHoii is entitled to pottsuMsion 
 is liable for converHioii ; Light v. Hawley (IS!I") "J.M). R. 25. 
 
 Assignment by Company. \ company may assign for the heiidit of its cred- 
 itoi's^vitlioiit the consent of it.s shaieholdeis ; Whiting v. Hovey (ISHIi) 13 
 A. K. 7, 14 S. ('. K. ."il."), hut the a»«ignment is an admi.ssion of insolvency, 
 and the ground for the making of a Winding Up Order ; H. S. (). c. I'2)> s. fl 
 (g) hut the Court may refuse in its discretion to make such order ; Wakelield 
 V. Hamilton A'hip Ci). (1H!)4) 'J4(). H. 1(17. It wouM seem, however, that the 
 Company heing insolvent, cannot he heard to oliject to the wiiuling up. The 
 ol)jection must come frotr. the majority of the creditors. 
 
 Aasignment by Firm. It is not within the imi)lie(l jjower of iv partner to 
 make an assignment for the l)eiiclit of creditors of the tirm's assets ; Nolan v, 
 I> mnuUy (ISS:}) 4 O. R. 440; Nelles v. .Malthy ( ISH3) ', (). R. L'(i.S, and if one 
 oi 'he partners he an infant, his share will not pass, though he execute the 
 a .'luiient ; I'owell v. Culder (ISSo) S O. R. .-)().-| ; Lovell v. IJeauchamp (1894) 
 A. (507. While the assigninent is hy partners of "all their estate &c." it 
 coil, 'sesthepai norship j)ro])ertv, ami the .separate ))ropertv of each part- 
 ner; ■lies V. Malthv (IN83) T) ().■ R. 'id.S : Hall v. Temant (IS!I4) ■_'! A: R. 
 602 ; \i.> O. R. 50. It is only to such eases that s. 7 a|)|)lies. Where a per- ( 
 son who is indebted as a |)artner, and also sei)arately, makes an a.ssignment of] 
 his estate, but there is no assignment by the partuersliip, tiie partiiershin cred- J 
 itors may rank on the estate in the same manner as the separate creditors ;l 
 Moorehouse V. Boslwiek (188")) 1 1 A. R. 70; Macihmahl v. lUlfimr (I8!W) 20 
 A. R. 404. If on assignment by the firm a partner is indeltted to u creditor 
 for the whole or any part of his oajiital, the creditor cannot rank against the 
 partnership. Lindley on Partnership 189, 703. Re Simmons (1870) 20 L. C. 
 Jur. 296. 
 
 One partner may rank against the separate estate of the otlier for a balance | 
 due him on an adjustment of the partnership accounts; Re Ruby, Trusts J 
 Corporation v. Ruby (1897) 24 A. R, 509. " ' 
 
 Where the partnership and separate estates arc lieiiig concurrently admin- 
 istered, the partnership creditors cannot resort to the separate estate of either 
 partner until the separate creditors have been paid in full, nor can separate 
 creditors resort to the partnership assets until the partnership creditors have 
 been paid in full. 
 
 Where one partner has become a surety for the partnership, proof cannot 
 be mad<3 against his 8ei)arate estate as well as the joint estate. Re Chafl'ey 
 (1870)30 U. C. R. 84. 
 
 Priority Over Executions. An assignment has priority over executions, and 
 attachments not completely executed by payment, s. 11 ; Atty-(ien. for 
 Ontario v. Atty-(ien. for Canada (1894) A. C. 189. When the SheriflT 
 had received the money, the execution is "executed by paj'inent" Clark.son v. 
 Severs (1889) 17 0. R. 592. Proof of their claims by execution creditors in a 
 mortgage action does not entitle them to the suqilus upon a sale made by the 
 Court after the assignment. The surplus must be paid to the assignee ; 
 Carter V. Stone (1 89 1) 20 0. R. 340. The first execution creditor having an 
 execution in the Sheriff's hands before the assignincnt is entitled to a lien for 
 the whole of his costs of suit ; Ryan v. Clarkson (1889) 16 A. R. 311, 17 S.C.R. 
 251, and for the SherifTs fees and poundage Smith v. Antipitzkj' (1890) 10 
 C. L. T. 368, which must be enforced by the retention of the property or sale 
 thereof, if the lien is not satisfied by the assignee ; Gillard v. Milligan (1897) 
 28 0. R. 645. It cannot be enforced as a preference by a claim on the estate 
 ib. Where the execution is from a Division Court, the Bailiff has a lien for 
 his fees and disbursements, R. S, 0. e. 60 s. 241 ; Bicknell & Seager's D.C. Acts 
 vol. 1 p. 47. A judgment for alimony when registered forms an encumbrance 
 upon lands of the husband in the same way as a life annuity charged thereon, 
 and an assignment, does not take precedence over the same ; Abraham v. 
 Abraham (1890) 19 0. R. 256, 18 A. R. 436. 
 
 It was held in Wood v. Joselin (1890) 18 A. R. 59 that the assignment 
 would not take precedence over an attachment of a debt in a garnishee pro- 
 ceeding. Since that decision the words " all attachments '' have been in.serted 
 
 ^! 
 
 /. 
 
468 
 
 ASSIGNMENTS BY INSOLVENTS. 
 
 ^' 
 
 in H. 11. It has recently been held in a Division Court action that an assign- 
 ment would not take precedence over a judgment against a garnishee and the 
 High Court refused to review the tlecisicn on a motion for prohibition ; Re 
 Dyer v. Evans (1899) 19 C. L. T. 195. 
 
 Removal of Assignee. There are two ways of removing an assignee. Tiio 
 creditors themselves r..cv lo so at a meeting, or he may be removed Tjy a Court 
 or a Judge. 
 
 When it is done at a meeting of creditors, the new assignee must be chosen 
 from the County where the debtor resided or carried on business. On the 
 motion tjio voting is limited to those who have filed proper proofs of claims for 
 §10() or over, anel it is necessary that a majority in both the number and value 
 of creditors voting, should vote in favor of the motion. 
 
 An action may be brought to remove an assignee or he may be removed on 
 summary application. He may be removed for the same causes as anj' other 
 trustee — such us insolvency', misconduct, permanent absence from tiie country 
 or for failure to properly discharge his duty towards, or to hold an even hand 
 between his ceMtuU que. Iriint. 
 
 A summary apiilication is governed by s. 8. Notice must, of coui'se, be given 
 to the assignee. The application may be either to a Judge of the High Court, 
 or to the Judge of the tJounty Court whe.-e the assignment is registered. The 
 .luilge acts as jjernoixt tlcni'inaf/i and there would be no appeal against his 
 decision; Re Pacquette (1886) 11 P.R. 403; Re Ycmnc (1831) 14 P.R. 303; Re 
 Simpson and Clatlerty (1899) 19 C. L.T. 140. The Judge would have power to 
 award costs R.iS.O. c. 70. The order would bo enforceable under the last 
 mentioned Statute. 
 
 The remuneration of the I'emoved assignee could be fixed, if not under s. 31, 
 by the Court under R.S.O. c. 129, see p. 385. 
 
 Where an assignee dies, an ajipointnient may be made by the creditors under 
 s. 8. Re Williams (1895) 22 A.R. 196, or the power of appointing a new 
 trustee under R.S.O. c. 129 may be exercised, see p. 373. 
 
 Claims of Creditors. A creditor must ])rove his claim b^' filing with the 
 a.ssignee an affidavit of himself or his agent, stating the amount and nature 
 thereof. The affidavit may be sworn before any person authorized to admini- 
 ster affidavits in the High Court or before a Justice of the Peace or if sworn 
 out of the Province before a Notary Public, s. 27. 
 
 If any person who has a claim refuses or neglects to prove it properly, an 
 application maj' be made to the Judge foi' an Order calling on the creditor to 
 prove his claim within a time to be limited, or to stand barred from partici- 
 |)ating in tlie estate, s. 21. If sucOi an order is not obtained, the assignee is 
 liable to all creditors of whom he has knowledge, notwithstanding no claim 
 has been filed, and notwithstanding an advertisement for creditors; Carling 
 Brewing & Malting Co. v. Black (1882) 6 0. R. 441, see notes to R.S.O. c. 129 
 p. 395. 
 
 Claims in the nature of damages, either for tort or for broach of contract, 
 where no judgment has i)eon obtained up to the time of the assignment cannot 
 be proved, and the claimants are not entitled to rank on the estate, nor are 
 they entitled to take anv proceedings [jormitted to a creditor, sucii as attack- 
 ing'a fraudulent transaction; (Jurofiki v. Harris (1890) 27 O.R. 201 ; (1896) 23 
 A.R. 717; (Jrant v. West (1890) 23 A.R. 533; Mail Printing Co. v. Clarkson 
 (1898) 25 A.R. 1; Magann v. Fergus(m (1898) 29 O.R. 235. A surety having 
 given a limited guarantee for an ultimate balance nnist pay the amount guaran- 
 teed before the creditor proves his claim, or he cannot |)ut in a claim at all; 
 Martin V. McMuUen (1890) 19 O.R. 230; 20 O.R. 257; 18 A.R. 5.59; In re 
 Sass (189()) 2 Q.B. 12. A solicitor cannt)t rank on the estate for costs incurred 
 bv tliedel)tor after the assignment, though the proceeding was then pending 
 Re Dumbrill (1S84) 10 P.R. 216. 
 
 Valuing _8ecuritl9 B. Where the insolvunt is secondarily liable in respect of 
 seveWPuisUncWienis, e.g. notes of several customers, each security must be 
 separately valued. The creditor will not l»e allowed to lump his securities in 
 one valuation. If any such security shoulil bo paid in full, any dividend re- 
 ceived in respect thereof would iiavo to l)o refunded; Re Morris, James v. 
 London & Couiitv Banking Co. (1898) 2 Ch. 413, (1899) 1 Ch. 485; Young v. 
 Spiers (1882) 10 O.R. 672. 
 
 A creditor nmst place a value on any security he hohla on the estate of the 
 debtor, such as a chattel mortgage or mortgage of real estate owned by the 
 
ASSIGNMENTS BY INSOLVENTS, 
 
 469 
 
 debtor. The principle is that a man is not allowed to prove against an estate 
 and retain a security which, if given up, would go to augment tiie estate 
 against whieli lie proves ; Ex parte West Riding Banking Co., Re Turner ( I8S1 ) 
 19 Ch. D. 105, 1 12. 
 
 A securitj' nnist also be valued if it covers the estate of a tiiird |)arty. for 
 whom the debtor is only secondarily liable — for instance, the debtor may hold 
 a mortgage on the farm of Jolni Doe, and may assign it over to a creditor, wlio 
 accepts it as payment, on any deficiency being guaranteed by the del)tor. 
 Although the creditor is entitled to receive the full amount of tlie mortgage 
 from John Doe, the debtor is liable to make up wluvtevcr amount cannot l)o 
 recovered from Doe. The party primarily liable to pay that mortgage is tiie 
 mortgagor, John Doe, and the debtor is only secondarily liable. In all cases 
 in which another ijerson is liable to indemnify the debtor, his liability must be 
 valued. The creditor may be in a position to sue either or l)oth, but tiiat is 
 not the test. It must bo looked at as between the parties themselves. Wlio 
 is the principal debtor? If the insolvent is not a principal debtor, then tiio 
 liability and any security held therefor must be valued; (ilanville v. Strachan 
 (1898) "29 O.R. 373, but see Bell v. Ottawa Trust Co. (1897) 28 O.R. .^IS. 
 Negotiable paper, notes and bills of exchange, endorsed by the insolvent, must 
 be valued as regards the makers or acceptor's liability if the claim is made 
 before the paper is due ; but if the pane, is overdue, the creditor is not called 
 on to value it. If the claim is filed oefore the paper is due, and the paper is 
 not met at maturity, the claim may be amended oy striking out the valuation, 
 a. 20 (6). Securities held upon a joint estate when there is an individual 
 liability of one of the joint debtors need not be valued in proving against the 
 separate estate, and securities held upon the separate estate of a partner need not 
 be valued in proving against the joint estate; Re Jones (1878) 2 A.R. ()2(J; in 
 re Chaffey (1870) 30 U.C.R. 64; Re Baker (1871) 3 Chy. Chamb. R. 499; Ex 
 parte West Riding Banking Co., Re Turner (1881) 19 Ch. D. lOo. 
 
 Where a third party has guaranteed a debt of the insolvents, his liability 
 need not be valued, as the insolvent is primarily liable ; Martin v. McMullen 
 (1890) 19 O.R. 230 ; 20 O.R. 257 ; 18 A.R. 559. 
 
 If both guarantor and debtor have assigned, and the creditors seeks to rank 
 on the estate of the guarantor, he must value the debtor's liability, as he is 
 entitled to his dividend from the debtor's estate, and to that extent is secured ; 
 Wyld V. Clarkson (1880) 12 O.R. 589. 
 
 If the clainumt will not value his security, an application may be made to a 
 Judge for an order compelling him to value, or to be barred from participating 
 to the face value of his security. 
 
 A creditor does not omit to value his security by stating that it is worth- 
 less ; Re Piers, Ex parte Piers (1898) 1 Q.B. 02". 
 
 Costs reasonably incurred in respect of a security niav be deducted in esti- 
 mating the value of the security ; Ex parte Carr, Re Hofmanii (1879) 11 Ch.D. 
 02. 
 
 Preference claims. The following claims are preferential : — 
 
 (1) Rent due to the landlord of the premises where goods of the estate maj' 
 be distrained to the extent of the realizable value of the goods, see /;f/W(. 
 
 The assignee's expenses including nionevs disbursed in discharging liens 
 or in legal proceedings and the assignee s reiinuieration, see iiijrn. 
 
 Wages duo to persons in the employment of the debtor, R. S. 0. 1897, 
 c. 156, iiifrii. 
 
 If the assets should be insufficient to discharge all tliese in full, the rent 
 would appear to take priority, but the assignee's indemnity and romuncrati(ui 
 would take priority over the claims for wages, except for costs of litigation or 
 other unusual expenses not assented to. R.8.0. c. 156, s. 9. 
 
 Tiic assignee must, of coiu'se, take the property subject to any incumbrances 
 or liens thereon and can actjuire no priority over the same. 
 
 Moneys due to a creditor in respect of securities taken over by the creditor 
 thereon, must be paid outof the estate so soon as tlie s(!curity is realized. Kor 
 such money to the extent of the amount realized on the security less, periiaps, 
 costs of realization, it is submitted the creditor would have priority over otiicr 
 claims, but if the security did not realize sufficient to pay tiie amtmnt at which 
 it was taken over, it vould seem probable tliat he woultl have priority only 
 over the general creditors for the deficiency. 
 
 
 (2) 
 (3) 
 
470 
 
 . 70. 
 
 letitH of I 
 iinieiit ; 1 
 el Coy. I 
 
 Si 
 
 ASSIQNMENT.S CY INSOLVENTS. 
 
 The Crown has no priority ; Clarkson v. Atty.-Gen. for Canada (1889) 16 A. 
 R. 202. 
 
 Following trust funds. If funds of whicli tlie dehtor wns a trustee or agent 
 ciui l)e traced into specitio ])roperty, or into a specific fund, or are earmarked 
 in the debtor's hand.s, the assignee will take the property or money subject to 
 the trust ; Long v. Carter (1890) 2.3 A.R. 121 ; 20 S. C. R. 430, and the re-ftni 
 qw trust could replevy the property if it consis ted of goods, il). But if the 
 trust funds cannot be so traced the (•i.xtni que trust can rank oidy as an ordin- 
 ary creditor ; Culhane v. Stuart (1882) O.R. 97. See 48 Central L. J. 350. 
 
 Rent. Section 34 of R.S.O. chapter 170, restricts the preferential claim of 
 the landlord of an insolvent debtor to the arrears for one year iirevious to , and 
 for three months following the execution of the assignment, and for so long 
 after that period as tlie assignee retains possession. The landlord's right to a 
 S preference dejiends on whether there is any tiling distrainable upon the premises. 
 ' If tiiere is nothing distrainable, the landlord has no preference whatever, for 
 he has given up no advantage over other creditors by consenting to the assign- 
 ment ; Magaiui V. Ferguson (1898) 29 O.R. 23i). But actual distress is not 
 necessary to [)reserve the landlord's right. Ho is entitled to be paid in full if 
 there were sutticient goods of a distrainable nature u])on the premises at the 
 date of the assignment ; Lazier v. Hender.son (1898) 29 O.R. 073. 
 
 The thi-ee months I'ent which maj' be allowed as a preference after the date of 
 the assignment means " rent becoming due within three months next following 
 the date of tlie assignment," so where the assignment was made thirteen days 
 after a (juarter's rent in advance had bec(mie due, and within three months 
 thereafter another quarter's rent in advance became due, the jireference was 
 lielil to exten<l to the whole of tiie latter (ii;.;rter's rent ; Lazier v. Henderson 
 (1898) 29 O.R. 073 ; Tew v. Toronto Havings & Loan Co. (1898) 30 O.R. 70. 
 
 But no proviso in a lease can lie recognized to accelerate future paymeti 
 rent beyond the period of three months from the date of the as.signii 
 Langley v. Meir (1898) 25 A.R. 372 ; see also Linton v. Imperial Hotel ' 
 (1889) 16 A.R. 337 ; Re Hoskins (1877) 1 A.R. 379. 
 
 The limitation of the landlord's lien does not release anyone, but only the 
 estate. The tenant is still liable for any other arrears, so also is a surety for 
 the tenant, also the goods as against a chattel mortgagee in iiossession before 
 /^^thedate of the assignment; Young v. Smith (1878) 29 C.P. 109; Tuck v. 
 Fryson (1829) Ring. .321 ; Brocklehurst v. Law (18.)7) 7 E. & B. 170; Railton 
 V. Wood (1890) 15 A])p. Cas. 30.3, and if there is no surrender or assignment 
 of the lease, and it lias become vested in tiie a.ssignee, he may continue per- 
 sonally liable therefor; White v. Hunt (1H71) L. R. Kx. 32. 
 
 Forfeiture of the term l)v reason of the assignment cannot be claimed, not- 
 withstanding any power of forfeiture given by the lease itself, if the assignee 
 within one month elects to retain the premises for the whole of the remainder 
 of the term, R. S. O. 170 s. 34 (2); Munro v. Waller (1890) 28 0. R. 29 ; 
 Mitchell V. Macauley (1893) 20 A.R. 272. 
 
 Suing in Name of Assignee. The assignee is the representative of the body 
 of creditors; Clarkson v. MeMaster (1895) S.C.R. 90. He is given exclusive 
 right to attack tran.sactions made by the insolvent in fraud of creditors ; 
 Hargiavo v. Klliot (1890) 28 O. R. 152, and to rescind agreements 
 and other instruments entered into by his assignor with that intent. No 
 creditor can bring any such action except in the assignee's name. A Judge 
 may grant leave to sue in the name of the assignee on it appearing tliat the 
 assignee, under the authority of the creditors or the Inspectors of the estate, 
 refuses or neglects to take the recpiired proceedings. Such an action when 
 brought is at the risk of, and for the benefit of only such creditors who join in 
 the application or action. The order should as a rule be made liy tlic Judge 
 of the Cimnty Court; Re Evans and Clarke (1897) Mcreditli C. J. (unre- 
 ported), but it is often ma<le by a Judge of the High Court. 
 
 If proceedings were commenced before the assignment, and the assignee 
 refuses to continue them, a similar application! may lie made; ({age v. Douglas 
 (1891) 14 I'.R. 120. If not made any benefit derived from the ]iroceedings will 
 go to the estate after jiayment of costs; Parks v. St. (Jeorge (1822) 2 O.R. 342. 
 Care must be taken to see that the order iirovides for all tne relief which is to 
 be sought in the action ; Campbell v. Hally (1895) 22 A.R. 217. The onler 
 may provide "that tiie ajiplicants may, and they are hereby authorized, to 
 take and i-ontinue jiroeecdiugs (heretofore commenced) for the pur|>oNc of 
 attacking certain instruments (assignments and chattel mwrtgages), the securi- 
 
ASSIGNMENTS BY INSOLVENTS. 
 
 471 
 
 ties held by one , ami to asik to have same tleclared 
 
 void (iiiHcrt sudi other relief as it may be intended to seek), sueh proceedings 
 to 1)0 at their own expense and risk, upon giving indemnity to the assignee to 
 his satisfaction against the costs of sudi proceedings." And sliould further pro- 
 vide tliat "all l)enefit derived from such proceedings, ahull belong exclusively to 
 the ajtplicants and such other creditors as may within four days of notice of 
 .the <ir<ier agree and signify their agreement in writing to contribute to the 
 expense and risk of such litigation;" Barlier v. Crathern (18!)7) "28 ().]{. (ilo. 
 
 Creditors may, with the assignee's consent, bring action without such an 
 order, tuit the proceeds recovered belong to the general estate, and not exclu- 
 sively to the creditors joining in the action ; Doull v. Kopmaii (1895) "i'i A.R. 
 447. A creditor suing in the name of the assignee will be liound by a compro- 
 mis(' made l)y the assignee liefore the order giving leave to .sue was made ; 
 Campbell V. Hally (bSlW) 22 A.R. 217; Keys v. Kirkpatrick (1890) 19 O.R. 
 572, but not by a linal order of foreclosure, made in an action to enforce 
 the impeached security although tlie assignee was a defendant. (Mass v. (Jrant 
 (1888) l(i O.R. 23.S, nor by a dismissal of an action impeaeliing the same .secu- 
 rity brouglit l)y otlier creditors before the assignment ; .Smith v. Doyle (1879) 
 4 A.R. 471. 
 
 A creditoi- who obtains an oi der to sue in the assignee's name cannot recover 
 by virtue of the proceedings more than the amount of his claim at the tinu- of 
 obtaining the order, and subseijuent interest and full costs; McTavish v. Rog- 
 ers (189(i) 2.S A.R. 17, adopted as law on the revision of the Statutes. 
 
 Tlic creditor who is attacked may join in the indenniity to the assignee and 
 niav then in case of his failure to sustain liis security share in the fruits of the 
 attack upon him.self ; Barber v. Crathern (1897) 28 O.R, (il5. 
 
 Although the assignee's exclusive right of suing extends only to the rescis- 
 sion of agreements, etc., in fraud of creditois, or in violation of the Assign- 
 ments Ai't, lie, as well as other creditors, may still take ailvantage of irregu- 
 larities or defects in the making or renewal of a Chattel Mortgage; Kerry v. 
 James (1894) 21 A.R. 338, see R.S.O. c. 148 pp. 345, 350. 
 
 An assignee under the Act, except where expressly given them by Statute, 
 takes no higlier rights under the assignment than his a.ssiguor liad. McCall 
 V. McDonald (1880) 13 S.C.R. 2.'i6. He itaiuiot obtain ])riority over a jireviou-s 
 transferee of book dol)ts liy notifying the debtors earlier than the jjrevious 
 transferee; 'rhii)audeau \-. Paul (1895) 2(i O.R. 385, nor can beset uj) a i)lea 
 that a liank was acting tillni rhra in loaning money to the insolvent on 
 securities not mentioned in or allowable by the Act relating to Savings Banks, 
 R.S.C. cap. 122, see. 20; Rolland v. Cai'sse d' Economic de Ouebec ( 1895) 24 
 S.C.R. 405 ; or under tiie Bank Act, (Jonn v. Smith (1897) 28 O.R. (i29. 
 
 An assignee cannot refuse to carry out an agreement made previously l>y the 
 debtor, to give to an endorser a cliattcl mortgage, securing liim against liabil- 
 ity, unless the same is invalid us against him; Kerrv v. .lames (1894) 21 
 A.R. 338. 
 
 Sucli an agreement must now lie in writing, and tiled with the County Court 
 Clerk as provided by The Chattel Mortgage Act, R.S.O. c. 148, s. 11 ; Hope v. 
 May (1897)24 A.R. Hi. 
 
 Renewal of Chattel Mortgages. Tiic assignee may renew a cliattel moi-tgage 
 given to the del)tor witlunit the execution and registration c)f a specific a.ssign- 
 nu!nt of that nuirtgage. The renewal statement and alHdavit alleging title 
 througli the assignment for the l)enetit of crcditoi's is sutticient ; Klenn'ng v. 
 Ryan (1894) 21 A.R. 39. This decision was adopted by a clause inserted in 
 the Chattel Mortgage Act in 1894, now R.S.O. c. 148, a. 22. 
 
 Assignee must not profit from his trust. Thea.ssignee ought not to)>urcliaso 
 the goods of tlic insolvent, and if he does so, the tiansaction is scrutinized 
 closely, and even where he purchased at tlii^ reijucst of insjiectors, and after 
 futile etl'orls to ."ell by public auction and by private tender, and after notice 
 of the intende<l sale to iiitn had been sent to each ci'cditor calling foi' oi)jec- 
 tions, if any, the sale was .set asi<le on evidence that at the tinu' of completing 
 the purchase the assignee knew of a po.ssible purchaser, to whom he after- 
 wards sold at a laige j)rolit, and tliat he had not disclosccl tills information to 
 the inspector ; Moiv; on v. Watts (1892) 19 A. R. 022. 
 
 An assignee who is a solicitor cannot charge )tr()Ht costs for jirofessional ser- 
 vices : Re Kelly (1897) 17 ('• L. T. ()5 ; Re Dickinson (1892) 2 U. C. R. 202. and 
 if he should recover any from an ailverse litigant, they would l)eloiig to the 
 
 ,' ' I 
 
 . ''] 
 
rs^" 
 
 •472 
 
 ASSIGNMKNTS BY INSOLVENTS. 
 
 uf" 
 
 iiff 
 
 I-' 
 
 1- 
 
 estate Re Corsellis, Lawtnn v. Klwes (lH87)34Cli. D. 675, but wo'*!.! no (l(ml)t 
 be considered in fixing lii.s renuinenition. 
 
 Examination of Assignor. The creditors may resolve at a general meeting, 
 or the inKpeitor.s may recjuest in writing, that the Assignee shouhl c^anse the 
 Assignoi', oi' any elerli of liis to, lie examined. Tlie examination may be a very 
 compreiiensive one, relating iiacit even totiie <hite of the earliest chiim existing 
 at the (bite of tiie assignment, and be a searching eiKjuirv as to the means 
 tiie (Ktbtor then had, or since ac(|iiire(l, and iiow lie liad disposed of tiiem. 
 The examination is of tiio .same natiu'c as tiie ordinary examination of a juflg- 
 ment del)tor. 1"he elerii of a firm Litely di.s.solved, but not eontinucil in the 
 em|)l()y of tlie member continuing tlie Imsiness is examinable; Re (Uiinane 
 (1898) 18 (J. L. T. ;U1, 18 P. R. 208. 
 
 A person attending in answer to the appointment, but refusing to be .sworn, 
 may lie ordered to attend ami .submit to examination, at his own expen.se ; and 
 on further default, process of contempt may issue; Uin-ig v. Uhrig (18S)'2) lo 
 P. R. 53. 
 
 A notice of motion to c(3nmiit for contempt of Court, or for unsatisfactory 
 answers must be served personally on tlie person whose lilierty is at stake ; 
 Mann v. Perry (1881) 50 L. J. Ciiy. 2;')1 ; Re llarnden, Harncien v. Hariiden 
 (188i)) 11 P. R. 35. Motions to Comn>it must l)e made before a .Iiidge in 
 Chaniljers; Ward v. Ward (1882) 18 C.L.J. ICO; Royal Canadian Raiilt v. 
 Loc'.-nian(1877) 7 P. R. 102. 
 
 If the examination is l)efore a Judge having power to entertain an a])plica- 
 tion to commit, such an aj)plication may be made at once witliout further 
 notice ; Baird v. Story (1804) 2;i U. C. R. 624 ; Ponton v. Bullen (1804) 2 E. 
 & A. 379. 
 
 Satisfactory Answers. A notice of Mf)tion for Committal for un.satisfactory 
 answers sliould i)articulari/,e the answers complained of ; Foster v. Van Vormer 
 (1888) 12 P. R. 597. Tlie broad test to lie applied in guaging the cliaracter of 
 tlie answers in order to determine wiietiier tiiey are satisfactory is, iiaving 
 regard to the circumstances of each particular case, are the answers sulhcient 
 to satisfy the mind of a reasonable person that a full and true disclosure has 
 been made ; Crahaiii v. Devlin (1889) 13 P. R. 245. Answers are not unsatis- 
 factorv because tiiey do not account for tlie assets in a proper manner ; Hobbs 
 v. Scott (1804) 2:$ U.C. R. 019; Crooks v. Stroud (1883) 10 P. R. 131. The 
 debtor must have contumacicmsly refuse<l to answer, or .so ecpiivocated as to 
 render his answer no answer at all ; Lemon v. Lemon (1874) P. R. 184. 
 
 It is the debtor's duty to give such explanation of hisait'airs as will ])lacehis 
 dealings in an intelligible shape, and not leave bis creditors to find out as best 
 they may; Foster v. Van Wornier (1888) 12 P. R. 597; Peoples Loan and 
 Deposit Co, v. Dale (1899) 19 C. L. T. 82. A married women is not exempt 
 from committal ; Metropolitan Loan an<l S. Co. v. Mara (1880) 8 P. R. 355. 
 
 An aiiplication for committal on the ground of concealing or making away 
 with assets is in the nature of a dial for a criminal ort'ence, and must be con- 
 ducted as strictly, and the debtor is entitled to the benefit of any <loubt ; Hobbs 
 V. Scott (1804) 23 U. C. R. 619 ; Lemon v. Lemon (1874) 6 P. R. 184. 
 
 Contestation of Claims. There are three methods provide<l by the Act for 
 contesting claims of creditors ; 
 
 (1) By service of notice of contestation by the assignee, s, 2*2. 
 
 (2) By a creditor objecting to a dividend sheet, s. 29. 
 
 (3) Bv the assignee taking proceedings uiuler The Creditors Relief Act, 
 s. 30. 
 
 It may be that in a proper case, the estate might be administered by the 
 Court in an action to enforce the trusts, and in such case the claim c)f any 
 creditor might be attacked. 
 
 Where the assignee serves a notice of contestation, the claim of the creditor 
 against the estate is barred, unless an action is commenced witliin thirtN' <lays, 
 or such further time as may be granted undi'r s. 22. .\n extension should, it 
 seems, be olitained within tlie thirty days; Kennedy v. Purcell (1888) 14 
 S.C. R. 453; 28 (J. L.J. 99. An assignee woidd be bound by a jmlgnicnt re- 
 covered against the debtor before the assignment, unless it was fraudulent ; 
 Re Hague, Traders" Hank v. Murray (1887) 13(). R. 727, but a judgment after 
 the assignment is no evidence against the assignee; Stewart v. Gage (1887) 
 13 0.R. 458. On a eonteslatioii, the juilgment, if in favor of the creditor, 
 
 ^ 
 
ASSIGNMENTS BY INSOLVENTS. 
 
 473 
 
 ^ 
 
 merely declareH liis right to rank ; Grant v. West (1896) 23 A.R. 333. 
 Where the claim is iiii<ler iS4fM), the action sliould he in the County (Jourt ; 
 R.S.O. c. 5o, s. 23 (1-1), J). 224. Where a claim appearing on the divi.lend 
 sheet is objected to, the proper course would appear to be tor the assignee to 
 take the proceedings under the Creditors Relief Act. A decision of the 
 Couutv Court Judge on a contestation under s. 30 i.s not appealable ; Re 
 Simpson and Clatferty (1899) 19 C.L.T. 140. 
 
 Set-off. All rights of set-ofF existing against a debtor at the time of the 
 assignment are preserved so far as the claim is not art'ected by provisions of 
 statutes against frauds or fraudulent preferences ; Moody v. Canadian ISank 
 of Commerce (1891) 14 P. R. 2.58. And moneys realized by a mortgagee after 
 the assignment may be applied upon and set-off against an unsecured del)t due 
 him by the assignor ; Stephens v. Boisseau (189G) 23 A.R. 230 ; 26 S.C.R. 437. 
 So may claims purchased before the assignment for the express purpose of 
 setting them off against a debt due to the assignor ; Thibaudeau v. Garland 
 (1896) 27 O.R. 391, and also claims for utdiquidated damages arising out of the 
 same contract as the debt ; Newfoundland (Government of) v. Newfoundland 
 Ry. Co. (1888) 13 App. Cas. 199 ; Mason v. Macdonald (1880) 45 U.C.R. 113 ; 
 and a debt due by a mortgagee to a mortgagor may be sot-off' against the 
 mortgage debt ; Court v. Holland (1881) 29 (ir. 19 ; but money payable to an 
 assignee qua assignee, and not nierelv in right of the debtor cannot be reduced 
 by setting off a claim against the assignor e.g. a debt due by the assignor can- 
 not be set-oft' against purchase money due to the assignee, nor p.gainst costs 
 payable to the assignee bv an adverse litigant creditor ; Re Rogers and Fare- 
 well (1890) 14 P. R. 38. 
 
 Advertisement for Creditors. S. 38 of R.S.O. c. 129, provides the machinery 
 for the protection of an assignee against claims of which he had no notice. 
 See notes to that section ,p. 395. 
 
 Time for Administration. In ana]ilogy to the rules applicable to executors, 
 an assignee has a year from the time of the assignment to wind up the estate ; 
 Ontario Bank v. Lamont (1882) 6 O.R. 147. A creditor shouhl not, however, 
 without due eni[uiry commence administration proceedings, although the year 
 may have expired. The assets may be unsaleable, or the assignee maj' have 
 other good reasons for the failure to wind up the estate. Costs of unnecessary 
 administration proceedings may be imposed on the plaintiff. Rosebatch v. 
 Parry (1879) 27 Gr. 193. 
 
 Accounts. The assignee shoidd have his accounts ready at all times and 
 should afford all reasonable facilities for their inspection and give all informa- 
 tion reasonably ro(iuired at any time. But he is not bound to render any copy 
 of his accounts to any creditor unless such creditor pays or tenders him 
 reasonable compensation for making the same; Sandford v. Porter (1889) 16 
 A.R. 505. 
 
 Indemnity and Remuneration of Assignee. The assignee is entitled to i)e 
 reimbursed out of the estate, all s>i:us properly expended by him, see R.S.O. 
 c. 129, s. 3 and notes thereon, p. 389. Costs of contesting a creditor's claim 
 under the authority of the inspectors will be allowed; Smith v. Beal (1894) 
 25 O.R. 3(i8. The assignee is personally liable for costs of proceedings to 
 which he is a party; MacDonald v. Balfour (1893) 20 A.R. 404; Smith v. 
 Williamson (1889) 13 P.R. 126, and will only be allowed to reimburse liim.self 
 when the proceedings were proper. Where an action was brought to set aside 
 a chattel mortgage without the authority of the creditors or inspector, and 
 was unsuccessful the costs were not allowed the assignee ; Hyman v. Howell 
 (1887) 13 O.R. 400. The charges of the assignee's solicitor for professional 
 services will be aUowed, but they may be taxed at the instance of a ci'editor ; 
 Sandford v. Porter (1889) 16 A.R. 565. Costs or expenses incurred before the 
 assignment are not allowalde ; Ex parte Lovegrove (18,S4) 3 Dea. & Ch. 763, 
 see also notes to R.S.O. c. 129. 
 
 There is no hanl and fast rule as to the amount of reiauneratioii to be al- 
 loweil, see notes to R.S.O. c. 129, p. 397. The assignee may call a meeting of 
 the creditors to fix his remuneration. The purpose of the meeting must i)e 
 expressed in the notice, and the meeting must be called in the manner pre- 
 scribed by s. 17. If no such meeting is called, or if the remuneration is not 
 fixed thereat, the Inspectors may fix the remuneration. An appeal to tlie 
 County Judge of the County where the assignment is registered against the 
 amount of the remuneration may bo made by the assignee or anj' of the 
 
474 
 
 ASSIGNMENTS BY INSOLVENTS. 
 
 cre<litors. If no allowance is fixed by either the creditors or inspectors the 
 assignee may deduct ') per cent, of the gross receipts subject to revision by the 
 Jiiilge at tiie instance of any creditor, or at the instance of the assignee if the 
 (picstion lias l)een pro|)erly brought l)efore a meeting of the creditors, s. 32. 
 
 The creditors are not t xuhoiuxJ Iv responsible for the remuneration or dis- 
 bursements of the assignee, alt liougii by resolution tiiey may have instructed 
 proceedings wliicli were unsuccessful and which caused a deficiency in the 
 estate ; Johnston v. Dulmage (1899) 30 O.R. 233. 
 
 Wiiere all the work is done by the assignee's partner resident out of Ontario 
 he will not be allowetl for his services or other e.xpenses ; Tennant v. Macewan 
 (1897)24 A. R. 132. 
 
 Inspectors and their Obligations. Inspectors sliould be appointed at the 
 first meeting of the creditors, and the notice for that meeting should state the 
 appointment as one of the purposes of the meeting. Inspectors will not be 
 allowed to purcliase the estate without the consent of the creditors properly 
 given at a properly called meeting; Morrison v. Watts (1892) 19 A. R. (522; 
 Thompson v. Clarkson (1891) 21 O.R. 421, and all the facts must bo communi- 
 cated. The inspectors must make no profit out of their office ; Segsworth v. 
 Anderson (1893) 23 O.R. 573, 21 A.R. 241, 24 S.C.R. 099, but one may act as 
 solicitor and receive the proper remuneration; Strachan v. Ruttan (1892)1") 
 P.R. 109. Inspectors can be paid nothing for loss of time, cxcej)t under a 
 resolati(m at a meeting called for tlio purpose, s. 33. The resolution must not 
 allow more than S4 a daj'. Whether this mean.s .?4 for each day ujxin which 
 one or more meetings of inspectors is held, or .*!4 for each day upon which an 
 inspector does anything for the estate ])ursuant to his duties or instructions, or 
 $4 for an expenditure in the affairs of the estate of the number of liours time 
 which would be a day's work, or anj' of these three is a question j'et unsolved 
 by judicial decision. 
 
CHAPTER 160. 
 
 An Act respecting Contracts in relation to Goods 
 entrusted to Agents. 
 
 Interpretation, s. 1. 
 
 Agent entrusted with goods to be 
 
 deemed owner for certain 
 
 purposes, 8. 2. 
 Agent in possession to be deemed 
 
 entrusted, s. 3. 
 Agent in possession of document 
 
 of title deemed entrusted 
 
 with the goods represented 
 
 BY IT, SS. 3, 4 . 
 
 Contracts for purchase, when 
 
 VALID, 8. 5. 
 
 Contracts for lien, etc., when 
 
 VALID, 8. 6. 
 
 Pledge of document of title to be 
 deemed pledge of goods repre- 
 sented by it, 8. 7. 
 
 Antecedent debt due by agent 
 
 NOT to authorize LIEN, 6. 8. 
 
 Contracts with agents must be 
 
 bona fide, 8. 9. 
 Bona fide transactions to bind 
 
 owners, 8. 10. 
 Bona fide loan or advance when 
 
 deemed made on security of 
 
 goods, 8. 11. 
 
 Contract with sub-agents when 
 
 deemed made with agents, 8.12. 
 Payments when deemed advances, 
 
 8. 13. 
 Civil liability of agent, s. 14. 
 Conviction for theft, s. 15. 
 Owner may redeem goods pledged 
 
 BY agent, 8 16. 
 Remedy of owner agains". estate 
 
 OF insolvent agent, s. 17. 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 1. Where the following words occur in this Act they shall Interpre- 
 be construed in the manner hereinafter mentioned, unless a ***'""*• 
 contr&ry intention appears : — 
 
 1. " Goods " shall include all personal property of whatever "Goods." 
 nature or kind soever ; 
 
 2. " Shipped " shall mean the carriage of goods, whether by "SWpped," 
 land or by water ; 
 
 3. " Document of title " shall include every bill of lading, "Document 
 warehouse-keeper's or wharfinger's receipt or order for delivery ° 
 
 of goods, every bill of inspection of pot or pearl ashes and every 
 other document used in the ordinary course of business, as 
 proof of the possession or control of goods, or authorizing or 
 purporting to authorize either by endorsement or by delivery, 
 the possessor of such document to transfer or receive goods 
 thereby represented. R. S. 0. 1887, c. 128, s. 1. 
 
 [475] 
 

 476 
 
 When and to 
 what extent 
 agent to be 
 deemed 
 owner. 
 
 Sec. 6. 
 
 GOODS ENTRUSTED TO AGENTS, 
 
 Chap. 150. 
 
 Agent in pos- 
 gession to be 
 deemed en- 
 trusted. 
 
 2. Any agent entrusted with the possession of goods or of 
 the documents of title thereto, shall be deemed the owner 
 thereof for the following purposes, that is to say : 
 
 1. To make a .sale or contract, as in section 5 mentioned ; 
 
 2. To entitle the consignee of goods consigned by such 
 agent to a lien thereon for any money or negotiable security 
 advanced or given by him to or for the use of such agent, or 
 received by the agent for the use of the consignee, in like 
 manner as if such agent were the true owner of the goods ; 
 
 3. To give validity to any contract or agreement by way of 
 pledge, lien or security bona fide made with such agent, as 
 well for an original loan, advance or payment made upon the 
 security of the goods or documents, as for any further or con- 
 tinuing advance in respect thereof ; and 
 
 4. To make such contact binding upon the owner of the 
 goods and on all other persons interested therein, notwith- 
 standing the person claiming such pledge or lien had notice 
 that he was contracting only with an agent. R. S. O. 1887, 
 c. 128, s. 2. 
 
 3. Every agent in possession of goods or documents of title 
 as aforesaid shall, for the purposes of this Act, be taken to 
 have been entrusted therewith by the owner, unless the con- 
 trary is shewn in evidence. E. S. 0. 1887, c. 128, s. 3. 
 
 Agent pos- ■*• -^^ly agent entrusted as aforesaid and possessed of any 
 
 sessed of docn- document of title, whether derived immediately from the 
 ment o tit e o Q^jjgj. qJ j^j^q goods Or obtained by reason of the agent having 
 
 be deemed en- 
 trusted with 
 gooda repre- 
 sented by it. 
 
 What con- 
 tracts for 
 
 ^ 
 
 urchase to 
 
 valid. 
 
 What con-_ 
 tracts for lien 
 valid. 
 
 I, 
 
 been entrusted with the possession of the goods or of any 
 document of title thereto, shall be deemed to be entrusted with 
 the possession of the goods represented by such document of 
 title. R. S. 0.1887, c. 128. s. 4. 
 
 5. Any person may contract for the purchase of goods with 
 any agent entrusted with the possession thereof, or to whom 
 the same may be consigned, and may receive and pay for the 
 same to such agent ; and such contract ' and payment shall be 
 binding upon the owner of the goods notwithstanding the pur- 
 chaser has notice that he is contracting only with an agent. 
 The consideration necessary for the validity of a purchase 
 under this section may be either a payment in c^sh or the de- 
 livery or transfer of other goods, or in part cash and in part 
 the delivery or transfer of other goods. R. S. O. 1887, c. 128, 
 s. 5 ; 57 V. c. 39, s. 1, 
 
 0. In case any person has a valid lien and security on any 
 goods or document of title or negotiable security in respect of 
 a previous advance upon a contract with an agent, and in case 
 he delivers up the same to such agent upon a contract for the 
 pledge, lien or security of other goods or of another document 
 
Chap. 150. GOODS ENTRUSTED TO AGENTS. 
 
 Sec. 6. 
 
 477 
 
 or security by such agent delivered to him in exchange, to be 
 held upon the same lien as the goods, document or security so 
 delivered up — then such new contract, if bona Jule, shall be 
 deemed a valid contract made in consideration of a present 
 advance of money within this Act, but the lien acquired under 
 such new contract on the goods, document or security deposited 
 in exchange shall not exceed the value of the goods, document 
 or security so delivered up and exchanged. R. S. 0. 1887, 
 c. 128, s. 6. 
 
 7. All contracts pledging or giving a lien upon any such Pledge of ""i 
 document of title shall be deemed a pledge of and lien upon the ^tig'^^be"' "i \ 
 goods to which it relates, and the agent shall be deemed deemed pledge ' / 
 the possessor of the goods or documents of title, whether the °* ^^"®F®' / ' 
 same are in his actual custody or are held by any other person 
 
 for him or subject to his control. R. S. O. 1887, c. 128, s. 7. 
 
 8. No antecedent debt owing from any agent entrusted as Antecedent 
 aforesaid, shall authorize any lien or pledge in respect of such <Jebt not to 
 debt, nor shall it authorize such agent to deviate from any ex- pi'edge!''^ 
 press orders or authority received from his principal. R. S. 0. 
 
 1887, c. 128, s. b. 
 
 9. Such contracts only shall be valid as are herein men- Contracts 
 tioned, and such loans, advances and exchanges only shall be ^^ 
 valid as are made bona fide and without notice that the agent 
 making the same has no authority so to do, or that he is 
 acting mala fide against the owner of the^ goods. R. S. 0. 
 
 1887, c. 128, s. 9. 
 
 10. All bona fide loans, advances and exchanges as aforesaid ^""^ '■^? 
 though made with notice of the agent not being the owner, Jith agents to 
 but without notice of his. acting without authority, shall bind bind owners, 
 the owner and all other persons interested in the goods, 
 document or security, as the case may be. R. S. 0. 1887, 
 
 c. 128, s. 10. 
 
 11. Where any loan or advance is bona fide made to an fiona^rfe loans 
 agent entrusted with and in possession of goods or documents ^hwiXemed 
 of title as aforesaid on the faith of any contract in writing to authorized, 
 consign, deposit, transfer or deliver such goods or documents 
 
 of title, and the same are actually received by the person 
 making the loan or advance, either at the time of the con- 
 tract or at a time subsequent thereto, without notice that the 
 agent is not authorized to make the pledge or security, such loan 
 or 9,dvance shall be deemed a loan or advance upon the security 
 of the goods or documents of title within this Act. R. S. 0. 
 1887, c. 128, s. 11. 
 
 1 58. Every contract, whether made directly with the agent as What con- 
 ith any clerk or otr 
 a contract with such agent. 
 
 aforesaid or with any clerk or other person on his behalf, shall ^miidered to 
 
 R. S. O. 1887, C. 128, be made with 
 Rgent. 
 
 be deemed 
 12 
 
478 
 
 Sec. 17. 
 
 GOODS ENTRUSTED TO AGENTS. Chap. 160. 
 
 o 
 
 
 03 
 
 Paymentg, 
 when deemed 
 advances. 
 
 13. Ever}' payment, whether made by money, bills of ex- 
 change or otlier negotiable security, shall be deemed an advance 
 within this Act. R. S. 0. 1887, c. 128, s. 13. 
 
 Other liability 1 4. Nothing herein contained shall lessen, alter or affect the 
 
 to be^affeot'ed. ci^il responsibility of any agent for the breach of any duty or 
 
 contract or the non-fulfilment of his orders or authority, in 
 
 respect of any such contract, agreement, lien or pledge as 
 
 aforesaid. R. S. O. 1887, c. 128, s. 14. 
 
 Conviction for 
 theft not 
 admissible in 
 
 evidence. against him 
 
 1 5. The conviction of any agent for theft, stealing or other 
 similar crime shall not be received in evidence in any action 
 R. S. O. 1887, c. 128, s. 15. 
 
 Owners may 1 C. Nothing herein contained shall prevent the owner from 
 pledKed^"*^* redeeming any goods or documents of title pledged as aforesaid, 
 at any time before the same have been sold, upon repayment 
 of the amount of the lien thereon or restoration of the securi- 
 ties in respect of which the lien exists, and upon payment or 
 satisfaction to the agent of any sum of money for or in respect 
 of which such agent is entitled to retain the goods or docu- 
 ments, by way of lien against such owner ; or shall prevent 
 the owner from recovering from the person with whom any 
 goods or documents have been pledged, or who has any lien 
 thereon, any balance or sura of money remaining in his hands 
 as the produce of the sale of the goods, after deducting the 
 amount of the pledge or lien under the contract. R. S. 0. 1887, 
 c. 128, s. 16. 
 
 Remedy of 
 the owner 
 against the 
 estate of 
 ineotvent 
 agent. 
 
 1 1. In case of the insolvency of any such agent, and in case 
 the owner of the goods redeems the same, he shall, in 
 respect of the sum paid by him on account of the agent for 
 such redemption, be held to have paid the same for the use of 
 such agent before his ins Jvency, or in case the goods have 
 not been so redeemed, the owner shall be deemed a creditor of 
 the agent for the value of the goods so pledged at the time of 
 the pledge, and may in either case prove for or set-ofi' the 
 sum so paid, or the value of such goods, as the case may be. 
 R. S. 0. 1887, c. 128, s. 17. 
 
GOODS ENTRUSTED TO AGENTS. 
 
 479 
 
 NOTES. 
 
 EngliBh Law. The Act rcHpecting contructs in rcliitioii t" goods I'litnisttd to 
 n>;entH is comnioiily culled the Factors Act. It whh tiikeii frimi the Knglish 
 Act, 5 & (i Vict. 0. 30. Tiiat Act was anieiidcil in several important lespects, 
 to remedy defect.s disclosed liy judicial decisions, in 1S77(4(>& 41 Vict. c. 39) 
 and was entirely repealed in 1S,S!I hy r>2 &, iVi Viet. e. 4.">. 'I'lie law in Kngland 
 is now emliodied in the last mentioned Statute. With the exception of the eon- 
 elu<ling clause of s. ,'>, none of the provisions of the Knglish Acta of 1877 and 
 1HS!I have heen re-enacted in Ontario. Knglish decisions since tliat date and 
 moilern Knglish text hooks do not therefore atl'ord much assistance towards 
 elucidating questiouM wiiieh arise under the Ontario Act. 
 
 Factor. A factor is a mercantile agent wlio in the customary (lourse of his 
 Imsiniss as such agent is intrusted v'th the possession or control of goods, 
 wares or merciiandise for sale on commission; Baring v. Corrie (IHIS) 2 B. & 
 Ahl. 1.37; '20R.R. 383; Kx jjarte Dixon (1870) 4 Ch. D. 1.33, 137; Stevens v. 
 Biller (1883)'2.)Ch. 1), 31. 
 
 Object of the Act. "The rule not merely of Knglish C'onmion Law, hut I 
 lake it of Koman (!ivil Law, and, I a))prehend, of all tlie old laws of Kuroj)e, 
 by whicli I mean the Laws existing before the Codi' Xn/ioleon, tliat no man 
 eould confer a greater title than he himself had, has i)een found in modern 
 practice to he inconvenient to its full extent in commercial tran.sactions, 
 especially since the ])raetiee of advancing money upon the security of goods 
 and merchandise came to he so inipoi'tant as it is; and I quite agree that there 
 have therefore been moditications of that principle introiluced into the law of 
 this country, and into the law of Canada, and I dare say, into the laws of 
 other countries. Tiiese modifications were introduced in Kngland by tlie Fac- 
 tors Acts wliich define and regulate and show to what extent the moditications 
 are given ; they at once modify the law and show how far it is to he modified ; 
 per Lord Blackburn; City Bank v. Barrow (1880) 5 App. Cas. 6()4, 077, 078. 
 
 The intention of the Factors Act was that where a third person has intrusted 
 goods or tlie doeunients of title to goods to an agent who in the course of such 
 agency sells or pledges them, he should bo deemed to have misled any one who 
 lionajidi' deals with the agent and makes a purchase from or an advance to 
 him without notice that he was not aiithoriz.ed to sell the goods or to procure 
 the advance; Cole v. North Western Bank (187r») L.R. 10 C.P. .354. 
 
 Law Before the Act. At common law a person in jMJssession of goods could 
 not confer on another either by sale or bj' pledge any better title than he him- 
 self had. To this general rule there w.as an exception of sales in market overt 
 of which there were none in Ontario; Hargreave v. Spink (1802) 1 Q.B. 25, 
 and an apparent exception where the person in possession had a title defeasible 
 on account of fraud; White v. (ianlen (1851) IOC. B. 91!); Pease v. Gloahcc 
 (1806) L.R. 1 P.C. 219; Stceser v. Springer (1882) 7 A.R. 497. 
 
 But a seller or pledger although not the owner could of course confer a title 
 if he had the authority of the owner to sell or pledge, and if the owner of the 
 goods' had so acted as to clothe the seller or pledger with apptirmi authority 
 to sell or pledge, he was at common law precluded as against tho _> who were 
 indiwed boiittjidc to act on the faith of that apparent authority, from denying 
 that he had given such an authority, and the result as to them was the same 
 as if he had really given it. But there was no such preclusion as against those 
 who had notice that the real authority was limited ; Cole v. North Western 
 Bank (1875) L. R. 10, C.P. 354. Such is still the law applicable toall cases in 
 , which the Factors Act is not applicable; Biish v. Fry (1887) 15 O.R. 122. 
 
 Where lead had been sent to a wharfinger who was accustomed to sell lead 
 from his wharf, but had never sold any for the plaintiff', and it appeared that 
 the lead of the plaintitf had been sent to him as wharfinger only. Lord Ellen- 
 borough ruled that he ha<i no color of authority to sell the lead and no one 
 could derive title from such a tortious conversion; Wilkinson v. King (1809) 2 
 Camp. 335. But where goods were at plaintiff's request transferred into the 
 name of a person who pursued the public business of a broker and agent for 
 
480 
 
 GOODS ENTRUSTED TO AGENTS. 
 
 g 
 
 c 
 
 Hale it waa liulil that he had an ininliuil authority to Hell; Pickering v. Uunk 
 (181'i) IT) Kast. :W; 13 K.K, 3«4. '\\w proper (iiu-Htioii for the jury, if theiiues- 
 tioii arJHcs upon the evidence, is, diil the realowiuTof the giMxIs hy his conduct 
 enahle the agent to hold liiniself forth to the world aw having not the poHMeNsion 
 only, Imt the property; Dyer v. I'earHon (iH'J-tlSH. A (.'. :W; tiT R. K. I'Sti. 
 The i)urchnHer or ])awnee is entitled to protection against him who ]K'rniit8 
 another to deal with his i)roi>erty as if it were his own; Williams v. Harton 
 (1825) 3 Hing. I.'lit. There must therefore he that which amounts to an estoj)- 
 pel within the doctrine etninciated in the well known cases of I'ickard v. 
 Sears (1837) HA. & K. 4m» ; Freeman v. Cook (1848)2 Kx. iSM; an<l Cornish 
 V. Atiingdon (18r>!)) 4 H. A N. MO; and the rules de<luced therefrom hy Lord 
 EHher in Carr v. London and North Western Ky. Co. (187r)) L.lt. 10 OA'. 31(1; 
 see 3C.L.T. 223. In all the ca.Mcs decided on this principle, in order that a party 
 shouhl l>e estopped from denying iiis assent to an a<'t prejudicial to ids rights, 
 and which he might have resisted, Imt has sull'ered to Ikj done, it is essential 
 that knowledge q/ /Ac ^/n'«;/ </oH*' shall he l)rought home to him; .Ijjhnson v. 
 Cr(;i|if, [. voniiis) Co. (I877i 3 C.l'.I). 32, 40. It nuist l)e some actt, comTiTn or 
 default in the very transaction in ([uestion; Arnold v. Cheipie Bank (1S7(>)1 
 C.IM). 578, 587; Chief Justice Burton in Walker v. Hyinan (1877) 1 A.R. 352, 
 Haid that to make the doctrine applicahle, two tilings must concur, (1) the 
 
 fiarty must so conduct him.self tiiat a reasonahle nuiii would consider it in the 
 ight of a representation and believe it was meant that "lie should act upon it, 
 and (2) the party for or to whom it was made must have aete<l on it as true. 
 A declaration! made in general terms, or under such circumstances as to iiuli- 
 cate that it was intended to reach or influence a third person may lie sutticient, 
 however, to work an estoppel although there was no representation to the 
 party claiming the benefit; Mason v. Bicklo (1S7S)2A.K. 302. Painting a 
 nailee's name on a safe is not a representation that lie is the owner thereof ; 
 Walker v, Hynian (1877) 1 A.R. 345. 
 
 A misrepresentation not meant to and which <l(ics not bring alx)ut a. sale will 
 not work an estoppel; Freeman v. Cook (1848) 2 Kx. 654. 
 
 An owner who stands by while a third jiarty gives a lien upon liis goods will 
 be bound if a thinl ])artv after reference to the holders of the lieu purchases 
 the goods; (;regg v. WJlls (1839) 10 A. & K. !»0. 
 
 Returning a note taken for the purchase money on a conditional sale to the 
 owner thereof on receiving a renewal is not a rejjri'Mcntation that the purchase 
 monej' is paid ; Mason V. Bickle (1'*"'^' '^ " 
 
 I'k wi 
 
 'tl 
 
 Sending certificates of si 
 stration made in the nni'" - 
 (the blank transfers i ,i.i 
 
 is not a representatio, u. has 
 
 shares ; Colonial Bank .dy (l8!Ji App. 
 
 Where the true owner I goods ii warehouse instructed the warehcmseman 
 to transfer them to the older of I', a i)urciiaser from F, was held to have 
 obtained a good title; Henderson Williams (18it5) 1 Q.B. 521. In a jirevious 
 case it had been decided that a pLi-son who, b^' claiming to represent other 
 
 t' ii broker t(» have a regi- 
 ■ii> of the registered owner, 
 leatcd as being "in order") 
 irity to sell or pledge the 
 •J07. 
 
 I good title to 
 ford V. Merry 
 
 persons, had obtained a delivery order for goods could not g 
 the purchaser as the owner never contracted with him ; I 
 (185B) 1 H. & N. 50.3. 
 
 Changes affected by the Act The principal ])oints whii' ■ under the Act 
 
 are (1) Is the ])erson midei' wiiom title is claimed an "ag ithin the mean- 
 
 ing of the Act? (2) Is he an agent "entrusted"? 
 
 OoodB. The definition of "goods" by section 1 (1) is \ wide, including 
 
 "all personal property of whatever nature or kind soe\ . " The origintu 
 English Factors Act contained no definition of goo<ls. It \v ,is held in Freeman 
 V. Appleyard (18(52) 1 N.R. 30, that shares of stock were not goods under the 
 English Act. It woulil ajjjjear to be doubtful whether such shares would not be 
 "personal property" within the definition of goods inider the Act; see Stroud's 
 Judicial Dictionary "Personal Estate" p. 58t). Tlie sub-sections (2) anil (3) 
 of 8. 1 would appear to restrict the wide definition in sub-section. (1) to .such 
 personal property as could be shipped or would be subject to the document.s of 
 title therein menlioned. The English Factors Act 1889, enacts "the expression 
 "goods" shall include wares and merchandise," s. 1 (3). 
 
 Document of Title. A document of title is something which represents the 
 goods, and from which either immediately or at some future time the possession 
 of the goods may be obtained. In this way a bill of lading represents the goods 
 while tney are at sea, and bj' which when the goods arrive at the port of desti- 
 
GOODS ENTKUHTED TO AUENT8. 
 
 481 
 
 I 
 
 natiiiii tlie poHHuHHidii of tlic gtMxlH limy !«' ohtained. So uIho a delivory order 
 iH an order for the delivery of tin; gotKls either immediately or at some future 
 time; generally, immediately on tlie jireseiitation of tiie delivery order, the 
 iirty iH entitled to the gcHxlH. Therefore it repreKentH the gcxnlH; per MelliHh 
 :,. J., (Junn V. Hokkow (1875) L.H. 10 Ch. 491, iJO-i. 
 
 A wliartinger'H eertifieate that "there are lying at the works of the Holekow 
 Company, CM) tons of iron rails which are ready for shipment, and whicli have 
 been rolle<l under eontract between tlie said (.'ompany an<l the Aherdare Iron 
 Co." was held not to he a docunient of title; (iiinii v. Holekow (IHTo) L. R. 10, 
 Ch. 491 ; wiiile a warrant as follows:— "Tlie undermentioned iron will not be 
 delivered to any party but tiie holder' of this warrant." 
 
 I'hoeni.x Hessemer Steel Company (Limited) 
 No. 88 Dee. 18, 1874. 
 
 "Staeked at the works of the Phoenix Bessemer Steel Cimipany, The Icklesi 
 Sheffield." 
 
 "Warrant for 40^1 tons, '2 ip-s., 9 lbs., steel rails, iron, deliverable (f.o.b. ) to 
 Messrs. (Jilead A. Smith & Co., of London or to tiieir assigns 1)V indorsement 
 thereon" was iield to be a docnnieiit of title; Mercliant lianking (^"ompany v. 
 Phoenix Hessemer Steel Co. (1877) ') Cli. D. '20"). 
 
 For the meaning of "every l)ill of inspection of pot or j)earl ashes" see 
 C.S.C. c. 49, s. 10 (0). 
 
 Who iB an Agent? From the first it has l)een understood that tiie words 
 "agent entrusted with goods" do not apply to every species of agent; Baines 
 V. Swainson (18()3) 4 B. k S. '270. An agent wlio can under the Act pledge or 
 sell must be an agent of that class wliicii like factors iiave a business which 
 when carried to its legitimate result would jirobably end in selling or in 
 receiving |)aynieiit for goods. If such a person is "entrusted" and is entrusted 
 ill that cii/iiirili/, then in the absence of bad faith on the part of the pledgee the 
 pledge is good'; Cilv Bank v. Barrow (1880) 5 App. Cas. 6()4, 078; Bush v. Fry 
 (1887) 15 0.R. 12, 12*2. 
 
 The following persons wouhl not tlierefore be "agents entrusted" within 
 the act. 
 
 A person entrusted as a wharfinger, a carter, a warehouseman, or a packer, 
 even tiiougii he maj' traiLsact business as a factor with some jjersoiis ; Monk v. 
 Wliittenlmiy (1831) 2 B. & Ahl. 484; 30 R. R. 037. This decision though 
 before tiie Factor's Act of o & Vict, is still law and unaH'ectcd l)v tiio Act ; 
 Cole v. Nortli Western Bank (1874) L. R. 9 C. P. 470, 493, 494, 490; (1875) 
 L. R. 10 C. P. 354, 309. 
 
 A tenant of hou.sehold furniture even though he may be an auctioneer. The 
 act does not apjily U> uther than mercantile transactions ; Wood v. RowcliH'e 
 (1840) Hare 18.3, 191. 
 
 A clerk who as such was posses.sed of delivery orders ; Lamb v. Atten- 
 borough (1802) 1 B. & S. 831 ; Jaullery v. Britten (1838) 4 Bing. N. C. 242. 
 
 A servant or caretaker or one who has jjossession of goods for carriage, safe 
 custody or otherwise as an independent contracting party. Tiie term "Agent" 
 includes only persons whose employment corresponds to that of some known 
 kind of commercial agent, like factors ; Heyman v. Flewker (1803) 13 C. B. N. 
 .s. 619. 
 
 A vendee : Jeiikyns v. Usborne (1844) 7 M. & G. 078 ; McEwan v. Smith 
 
 (1849) 2 H.L.C. 309. These cases establish tiiat a vendee who .sells or pledges 
 a delivery order or other docunient of title {not being a bill of lading) does not 
 defeat an unpaid vendor's rights. 
 
 A jierson who obtains possession of the goods or documents of title b^' some 
 trick as distinguished from a person who induces another ti' transfer the pro- 
 perTv to him bv fraud ; Bush v, Fiy (1887) 15 O. R, 122 ; Kingsford v. Merry 
 
 (1850) 1 H. & N. 503 ; Hardman v. Booth (1803) 1 H. & C. 803 ; Higgons v. 
 Burton (1857) 20 L. J. Ex. 342. 
 
 A vendor who is allowed by the vendee to retain the documents of title ; 
 Johnson v. Credit Lyonnais Co. (1877) 2 C.P.I). ; 3 C. P. 1). 32. 
 
 A person to whom hides are sent to be tanned, although a dealer in leather; 
 City Bank v. Barrow (1880) 5 App. Cas. 004. 
 
 Where a person who carries on business in two cajiacities, viz ; — warehouse- 
 man and factor, and goods are entrusted to him as a warehouseman, lie is not 
 an "agent entru.sted"; Cole v. North Western Bank (1874) L. R. 9 C. P. 470; 
 L. R. 10 C. P. 354. 
 F 1 
 
 A 
 
 V- 
 
 
482 
 
 GOOD.S ENTRUSTED TO AGENTS. 
 
 
 i 
 
 
 Sales or Pledges Binding on Owner- If a factor, or person carrying on a like 
 coninii'rcial l)iiHiiicsH is eiitni.stcd as sucli with tiie possession of goods, no 
 limitation upon iiis autiiority which is not known to a person dealing with 
 him bona fidr will he of anj' avail to protect the true owner ; Baines v. Swain- 
 son (IS()3) 4 B. h S. 'JTO. 
 
 An owner wiio is induced to intrust a factor as such witii goods hy fraiui is 
 hound hv a |)ledge made by him ; Sheppard v. Union Bank of London (1862) 
 7 H. & N. 6B1. 
 
 Where a factor and commission merchant obtained possession of grnxls by 
 fraudulently representing that a certain firm known to ho in good standing 
 would purchase „neni, but fraudtdently sold to the defendants who ])in('liased 
 in the ordinary course, honn jiilc, he was held to be an "agent" and to liave 
 been "entrusted ;" Baines \. Swainson (1863) 4 B. & S. 270. 
 
 The goods need not be specific. If a person authorizes anotlier fioni whom 
 he is purchasing a ((uantity of unajjprojiriated goods to deliver tlieni to an 
 agent for the purpose of carrying out .-. ..upposed sale, and the agent wrong- 
 fully pledges the goods, tiie pledge is binding on the principal; Vickers v. 
 Hertz (1871) L. R. 2 H. L. .Se. 113. 
 
 A person wliose ordinary business is not that of a factor or connncrcial 
 agent, but who is "entrusted" with goo<ls for sale is within the Act, and 
 can sell or pledge the goods ; Heyman v. Flewker (1863) 13 C.B.N. 8. ol9, in 
 which case the goods were entrusted to a jjicture dealer whose ordinary busi- 
 ness was not to sell pictures but who was authorized to sell the piciures in 
 question, but instead of so doing pledged them, and the pledge was held to be 
 valid. 
 
 Power to Pledge. A i)ower to sell diil not, before tlie act, confer a power 
 topledjj, ; Paterson v. Tash (1743) 2 Str. 1178 ; City Bank v. Barrow (1880) 
 6 Apj). Cas. 064. Section 2 (3) confers that power upon an agent liaving 
 power to sell, but there is no power to pledge wliere there is no power to sell; 
 Cole v. North Western Bank (1875) L.R. 10 C.P. 3r)4, .370. A factor may 
 lawfullj' pledge the goods to another factor; Navulshaw v. Brownrigg (1852) 
 21 L. J. Ch. 57 ; 1 Sim. N. S. 573 ; on appeal 2 DeG. M. & G. 441. 
 
 A second advance may be obtained on the security of a pledge of the sui'plus 
 remaining after satisfying the first pledgee ; Portalis v. letley (1867) L. R. 5 
 Eq. 140. 
 
 Presumirtion of Entrustment. Section 3 prescribes that by the mere ])08se8- 
 sion of goods or documents of title a jiresumption shall arise that the agent 
 has been entrusted therowitii " unless the cimtrary is siiown in evidence." 
 Lord Blackburn drew attention to tiie latter words in Baines v. Swainson 
 (18()3) 4 B. & S. 270, and said " the fact of a person l)eing put in po.ssession 
 of goods, calls upon the person who gave him possession to explain and show 
 that it was not an entrusting" and in Kjientesv^Jii^jtis (1868) L. R. 3 
 C. P., 268 at p 281, Willes J. "The inevitableconcIusi()n is tiiat if the <'ontrary 
 can be proved in evidence "an agent in ptmsession as aforesaid of sucli goods 
 or documents " is not to be taken to be entrusted therewith by the owner 
 thereof." 
 
 Document of Title Not Obtained From Principal. Section 4 of the act ■'■■ from 
 anotlier part of the 4tii scctiiin of "> it (i Vict. c. 3!), and was enacted for tiio 
 purpose of alteiing the law declared in Philli|)s v. Hutii (183!) (i M. & W. 572, 
 where it was licld tiiat to justify a pledge the goods or the document of title 
 actually pledged must have been entrusted to tlu^ agent, and tiiut wiicrc tlie 
 agent obtained dock Wiirrants in liis own name by surrendering liills of lading 
 entrusted to him a ))l(Mlgema(Ie li\ him of the dock wariaiits was not good. 
 This was followed in Hatfield v. JMiilips (1842) 9 M. * W. 647 : 14 .M. & W. 
 '565 ; 12 CI. h, F. 343. A jiU'dgc of goods will now be good altliough only a 
 document of title waw entrusted and a pledge of a document of title obtained 
 by depositing goods entrusted or goods represented by another document of 
 title entrusted will also be good. 
 
 Notice That Vendor Only An Agent. I'lior to 5 & Vict. c. .30 an agent en- 
 trusted with possession and known to be only an agent had no power' to ])ledgo 
 and could only sell and receive payment in the ordinary course of business ; 
 McCombie v. Davies (U'O.")) 7 lOast, 5. 
 
 The concluding wordc. of section 5 were introduc(!d in 1804 and were taken 
 from The Factor's Act I88!t(52& ,")3 Vict. c. 45) s. 5. A per,son known to be 
 an agent can ordinarily icccive iiayment only in cash ; Fraser v. (Jore |)istri(^t 
 Mutual Fire Insurance (!o. (1882), 2 t). 11.416; Sweeting v. IVarce (I8.')0) 7 
 
GOODS ENTRUSTED TO AGENTS. 
 
 48a 
 
 C. B. N. S. 485 ; Blumberg v. Life Interests and Reversionary Securities 
 Corporation (1897) 1 Ch. 171 ; (1898) 1 Ch. 27 ; Uonogh v. (iillespie (1894) 21 
 A. R. 292. 
 
 Exchange of Securities. Section 6 was enacted to alter the law declared in 
 Taylor v. Kynier (1832) .S B. & Aid. 320 ; 37 R. R. 433 ; and Bonzi v. Stewart 
 (1842) 4 M. & (i. 29"). To render a pledge good on an exchange of .securities 
 it i.s not necessary tliat it should have been made in the ordinary course of 
 l)usines8 or that the goods or securities given up should have liclongcd to the 
 agent ; Shcppanl v. Union Bank of London (1862) 7 H. & N. (WJl. 
 
 Pledge of Documents of Title. Documents of title arc not negotial)le instru- 
 ments ; Taylor v. Kymer ( 1832) 3 B. & Aid. 320 ; 37 R. R. 433. 
 
 A bill of lading partakes so much of tiie cliaracter of a negotiable instrument 
 that the endorsement thereof will transfer the goods rejiresented by it and the 
 contract therein contained to the same extent as a transfer of the possession of 
 the goods themselves ; see notes to R.S.O. c. 14"), ante p. 443. Independently of 
 the Factors Act, therefore a pledge of a delivery order, or dock warrant, 
 would not he a pledge of the goods ; see Blackburn on Sales 418. 
 
 A document of title in the hands of ;; pledgee is, luitil his authority is 
 revoked, under the control of the agent who pledged the same, so as to enable 
 him to pledge the surplus ; Portalisv. Tetley (1867) L. R. 5 Flq. 140. 
 
 Antecedent Debts, (ioods of a principal coming to the hands of an agent and 
 placed in his warehouse to replace goods sold by him, for which warehouse 
 receilits, had been given, are not, by reason of s. 8, subject to such warehouse 
 receipts, as that wouhl amount to a pledge or transfer for an antecedent debt ; 
 Re Coleman (1875) 36 U. C. R. fl.TO. A pledge by a factor of a bill of lading 
 to retire a bill of excliango accepted by the factor and held by tlie pledgee is a 
 pledge for an antecedent debt ; Macnee v. Oorst (1867) L. R. 4 Kq. 315. A 
 pledge to secure an advance upon bills of hifling transferred by a factor is good 
 althougii the factor may use the proceeds to enal)l(! an agent of the factor to 
 carry out purchases made by the agent through the pledgee, who, however, 
 was under no personal liability thereon ; Jewaii v. Whitworth (1866) L. R. 2 
 Kq. 692. 
 
 A broker who in purch ising goods for a factor has made himself responsible 
 to the vendor can make a honnjiile advance to the factor to enable him to pay 
 for the goods and may accept a pledge within The Factor's Act as security 
 therefor. A lender to be deprived of his pledge, nnist have known when making 
 an advance that it was for an antecedent debt of the pledgor ; Kaltenbach v. 
 Lewis (1883) 24 Ch. D. 54 ; 10 App. Cas. 617. 
 
 The transaction must, however, have been a real loan. If it is to pay a debt 
 to the lender, or to pay a note upon wiiich the lender and factor are jointly 
 liable it will not be protected ; Learoyd v. Robinson (1844) 12 M. & \\ . 745. 
 
 Mala Fides of Agent. To bring a case within s. 9 it nuist be fomid categori- 
 cally that the lender had notice of the ogcnt's miilnji('en or want of autiiority ; 
 Gobind Chunder Sein v. Ryan (1861) 8 Jur. N. S. ,343; Douglas v. Kwing 
 (1857) 6 Ir. C. L. R. 395. The equitable doctrines of constructive notice should 
 not be aijplicd to honest mercantile transactions ; Kalteid)ach v. Lewis (1883) 
 
 not De aijplicil to 
 24 Ch. 1). 54, 78. 
 
 Property reaelved after advance. The words in s. 11 "at anj' time subse- 
 quent thereto " referring to a receipt of the goods or documents of title after 
 the advance, but ])ursuant to a contract in writing tlierefor, were said by Wood 
 V. C. in Portalis v. Tetl-y (1867) L. R., 5 Eq. 148 to ap])ly to tlie ca.se where 
 the facUir being advised that the goods wex'e coming forward to hini agreed 
 tliat .so soon as he got them and so soon as the bills of lading came to hand he 
 would pledge them. 
 
 Redemption of goods pledged. A pledgee cannot, as against tlie owner retain 
 sur))lus ])r(ii'i'eds of tlie goods to answer a general balance of account ; Kalten- 
 bach V. Lewis (1885) 10 App. (!as. 617. 
 
 Revocation of Authority, It was iidd in F uontea v. Mont is (1868) L. H. 3 
 C. P. 268, L. R. 4 C. P. 93, tliat to entitle a factor f7) plcdgcgoods \w imist lie 
 " entrusted " at tiie time of inakiiiL,' the pledge, and that wlieie lii.s autiiority 
 had lieeii revoked MO jilcdge cduld lie made. The Kiiglish Act of 1877, reme- 
 died this defect in the law. In Ontario the act respecting Powei's of .Attorney 
 (R. S. (). c. 116) would seem to protect tlie jiledgee against such imkiiown 
 revocation. 
 
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 Liniiteil part- 
 nerships may 
 be formed. 
 
 Of whom to 
 consiHt. 
 
 Liability of 
 general and 
 special part- 
 ners. 
 
 General part- 
 ners only to 
 transact buiti- 
 ness, etc. 
 
 Certificate to 
 be signed. 
 
 CHAPTER 151. 
 An Act respecting Limited Partnerships. 
 
 Limited Partnership.s may be 
 
 FORMED, S. 1. 
 
 General and Special partners, bs. 
 
 2-4. 
 Certificate op .such partnership. 
 Contenta and form, as. 5, 6. 
 Where to be filed ai.d fees, ss. 7, 8. 
 Partnersliip not deemed formed 
 until filed, s. 9. 
 
 Certificates of renewal, s. 10. 
 Alterations, when deemed a disso- 
 lution, s. 11. 
 Partnership name, b. 12. 
 llabilitiesof general and special 
 
 partners, 88. 13-18. 
 No PREMATURE DISSOLUTION WITH- 
 OUT NOTICE, 8. 19. 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 1 . Limited partnerships for the transaction of any mercan- 
 tile, mechanical, manufacturing or other business within the 
 Province of Ontario, may be formed by two or more persons, 
 upon the terms, with the rights and powers, and subject to the 
 conditions and liabilities hereinafter mentioned, but the pro- 
 visions of this Act shall not be construed to authorize any such 
 partnership for the purpose of banking, or the construction 
 or working of railways, or making insurance. R. S. 0. 1887, 
 c. 129. s. 1; 55 V.c.28,s. 1. 
 
 2. Such partnerships may consist of one or more persons, 
 who shall be called general partners, and of one or more per- 
 sons who contribute in actual cash payments a specific smn as 
 capital to the common stock, who shall be called special part- 
 ners. K.S. 0.1887, c. 129. s. 2. 
 
 IJ. General partners shall be jointly and severally responsible 
 as general partners are by law, but special partners shall not 
 be liable for the debts of the partnership beyond the amounts 
 by them contributed to the capital. R. S. 0. 1887, c. 129, s. 3. 
 
 4. The general partners only shall be authorized to transact 
 business and sign for the partnership, and to bind the same. 
 R. S. O. 1887, c. 129, s. 4. 
 
 5. The persons desirous of forming such partnership shall 
 make and severally sign a certificate which shall contain — 
 
 [4S41 
 
Sec. 11. 
 
 LIMITED PARTNERSHIPS. 
 
 Chap. lol. 
 
 485 
 
 1 . The name or firm under which the partnership is to be Contents of. 
 conducted ; 
 
 2. The general nature of the business intended to be trans- 
 acted ; 
 
 3. The names of all the general and special partners 
 interested therein, distinguishing which are general and which 
 are special partners, and their usual places of residence ; 
 
 4. The amount of capital stock which each special partner 
 has contributed ; 
 
 5. The period at which the partnership is to commence 
 and the period at which it is to terminate. R. S. 0. 1887, 
 c. 129, s. 5. 
 
 6. The certificate shall be in the words or to the effect of the Fonn of. 
 form given in the Schedule to this Act, and shall be signed by 
 the several persons forming the partnership, before a Notary 
 Public, who shall duly certify the same. R. S. O. 1887, c. 129, 
 S.6. 
 
 1 1 
 
 1. The certificate so signed and certified shall be tiled in the Where to be 
 office of the Clerk of the County Court of the county, in which *'^'"^' 
 the principal place of business of the partnership is situate, and 
 shall be recorded by him at full length in a book to be kept 
 for that purpose and open to public inspection. R. S. 0. 1887, 
 c. 129,8.7. 
 
 8. For tiling and recording each such certificate the Clerk Fees. 
 shall be entitled to receive the sum of twenty-five cents, and 
 shall also be entitled to receive from every person searching in 
 the book where such certificate is so recorded the sum of ten 
 cents for each such search. 56 V. c. 25, s. 1. 
 
 0. No such partnership shall be deemed to have been formed P-artnership 
 until a certificate has been made, certified, filed and recorded as "ntifoOTtlfi- 
 above directed ; and if any false statement is made in such cer- cate filed, 
 tificate, all the persons interested in the partnership shall be 
 liable for all the engagements thei'eof as general partners. 
 R. S. O. 1887, c. 129, s. 8. 
 
 It? 
 
 10. Every renewal or continuance of a partnership beyond Certificates of 
 the time originally fixed for its duration, shall be certified, oontmu.-vnce. 
 filed and recorded in the manner herein required for its original 
 formation; and every partnership otherwise renewed or con- 
 tinued, shall be deemed a general partnership. R. S. O. 1887, 
 c. 129, s. 9. 
 
 1 1. Every alteration made in the names of the partners, in \yhataltera- 
 the nature of the business, or in the capital or shares thereof, ^\?",J',e^ ^"^jg, 
 or in any other matter specified in the original certificate, shall solution. 
 
486 
 
 Chap. 151. 
 
 LIMITED PARTNERSHIPS. 
 
 Sec. 11. 
 
 Partnership 
 name. 
 
 be deemed a dissolution of the partnership, and ever}- such 
 partnership in any manner carried on after any such altera- 
 tion has been made, shall be deemed a general partnership, 
 unless renewed as a special partnership, according to the 
 provisions of the next preceding section. R. S. 0. 1887, 
 c. 129, s. 10. 
 
 12. The business of the partner.ship shall be conducted 
 under a name or firm in which the names of the general part- 
 ners, or some or one of them, only shall be used ; and if the 
 name of a special partner is used in such firm with his 
 privity, he shall be deemed a general partner. R. S. 0. 18S7, 
 c. 129, s. 11. 
 
 
 oC, 
 
 (/ 
 
 i 
 
 { Liability of 1 3. Actions in relation to the busine.s.s of the partnership may 
 
 nerstoac'uoiis. ^® brought and conducted by and against the general partners 
 in the same manner as if there were no special partner. R. S. 0. 
 1887, c. 129, s. 12. 
 
 KestrictionB 
 upon stock of 
 special part- 
 ners. 
 
 Wli"'! siiecial 
 par •- liable 
 to rt'.iid. 
 
 1 4. No part of the sura which a special partner has con- 
 tributed to the capital stock shall be withdrawn by him, or 
 paid or transferred to him in the shape of dividends, profits or 
 otherwise, at any time during the continuance of the partner- 
 ship ; but any pai-tner may annually receive lawful interest on 
 the sum so contributed by him, if the payment of such interest 
 does not reduce the original amount of the capital ; and if after 
 the payment of such interest, any profits remain to be divifled, 
 he may also receive his portion of such profits. R. S. 0. 1887, 
 c. 129, s. 13. 
 
 1 5. If it appears that by the payment of interest or profits 
 to a special partner the original ca|)ital has been reduced, 
 the partner receiving the same shall be bound to restore the 
 amount necessary to make good his share of the deficient capi- 
 tal, with interest. R. S. O. 1887, c. 129, s. 14. 
 
 m 
 
 Privileges of 
 special part- 
 ners. 
 
 1 (?. A special partner may from time to time examine into 
 the state and progress of the partnership concerns, and may ad- 
 vise as to their management ; but he shall not transact any 
 business on account of the partnership, nor be em])loyed for that 
 purpose as agent, attorney or otherwise ; and if he interferes 
 contrary to these provisions, he shall be deemed a general 
 partner. R. S. O. 1887, c. 129, s. 15. 
 
 General part- 
 ners liable to 
 account. 
 
 Creditors 
 
 preferred 
 
 to special 
 
 i partners. 
 
 1 T. The general partners shall be liable to account to each 
 other and to tlic special partners for their management of the 
 concern in like manner as other partners. R. S. O. 1887, 
 c. 129, s. 10. 
 
 1 8. In case of the insolvency or bankruptcy of the partner- 
 ship, no special partner shall, under any circumstances, be al- 
 
Sched. 
 
 LIMITED PARTNERSHIPS. 
 
 Chap. 151. 
 
 487 
 
 lowed to claim as a creditor until the claims of all the other 
 creditors of the partnership have been satisfied. R. S. O. 
 1887, c. 129, s. 17. 
 
 19. No dissolution of such partnership by the acts of the No premature 
 parties shall take place previous to the time specified in the w'iThout'n"- 
 eertificate of its foimation or in the certificate of its renewal, tice, etc. 
 until a notice of such dissolution has been filed in the ofiice in 
 which the original certificate was recorded, and has been pub- 
 lished once in each week, for three weeks, in a newspaper pub- 
 lished in the county or district where the partnership has its 
 principal place of business, and for the same time in the Ontario 
 •Gazette. R. S. O. 1887, c. 129, s. 18. 
 
 SCHEDULE. 
 
 (Section 6.) 
 
 CERTIFICATE OF PARTNERSHIP. 
 
 We, tlio undersigned, do hereby certify that we have entered into co- 
 partnership under the style or tirm of {B. I). tC' Co.) as {Grocers and Com- 
 mission Merchants), which firm consists of (A. B.) residing usually at 
 
 and (C. D.) residing usually at , as General 
 
 Partners ; and (E. F.) residing usually at , an I {G. H.) 
 
 residing usu«lly at , cas Special Partners, 'i'h said {E. 
 
 F.) having contributed (84,000) and the said {G. II.) ($8,000) to the C^upi- 
 tal Stock of the said Partnership. 
 
 The said Partnership commenced on the day of 
 
 and terminates on the day of 
 
 18 
 
 18 
 
 Dated this 
 
 day of 
 
 Signed in the pr 
 L 
 Notary 
 
 resence of me, ) 
 L.M. \ 
 
 !fotary Public. ) 
 
 18 
 
 (Signed,) 
 
 .4. B. 
 C. D. 
 E. F. 
 G. H. 
 
 R. S. O. 1887, c. 129, St'hed. 
 
488 
 
 LIMITED PARTNERSHIPS. 
 
 c. 
 
 r: 
 
 NOTES. 
 
 Limited imrtiioisliipa wort- uiiUnowii in the Rniiian Law mid are iinknown 
 in Knglaiid. The model of tin- Act i.s a Statute of New Yoik wlii<'h iia.s l)een 
 adoi)led in most of the United States. 
 
 Object of the Act. Tlic Act is t(; enable a partnership to l)e foiined ni wliich 
 the liability of one of tbu partners is to be limited to the capital contiilmtcd 
 by him. (ieneral partners are jointly liali!e to all creditors ; Kendall v. Ham- 
 ilton (1879) 4 Ajip. Cas. 004. No limitation of lialiility as between themselves 
 in the articles of jiartnership would be effective as against creditors. Linilloy 
 on Partnei'ship 5th Kd. 'JOO, '201. The facility with which a limited liability 
 company may l)e formed under various Acts has rendered the formation of 
 limited partnerships to a large extent ol)soletc. There are so many v ays in 
 wliich a limited partner maj' become liable as a general partner when Ii'. would 
 not become liable as a shareholder in a company, so that it is obvious that 
 incorporation is a preferable proceeding. 
 
 Requisites of a Limited Partnership. To constitute a limited partnership the 
 following requisites must be observed :^ 
 
 (1) There must be a general partner or jiartners whoso liability is unlimited. 
 
 (2) The special partners must make their contributions to the capital 
 in cash. 
 
 (3) The name of the partnership must not contain the name of the special 
 partner. 
 
 (4) A certificate of partnership must be filed and the partnership will not 
 be deemed to be formed, so as to limit the liability, until the filing has 
 taken place. 
 
 (5) The certificate must contain no false statement. 
 
 (6) The business of the partnership must be confined to mercantile, mechan- 
 ioal, manufacturing or the like business. 
 
 (7) There must lie no alterations in the names of the partners, the nature 
 of the business or the capital in shares thereof, without a new certificate 
 being filed. 
 
 (8) The jirincipal place of business must not be removed out of the original 
 county ; Riper v. Poppenhau.sen (1870) 43 N. Y. 68. 
 
 (9) The special partners must not transact any business on account of the 
 partnership or intermeddle with or direct (other than by advice) the 
 att'airs thereof nor be employed for that purpose even in the absence of 
 the general partners. 
 
 (10) The partnership must terminate at the time mentioned in the certificate 
 unless renewed by filing a new (tertificato. 
 
 (11) The failure to observe any one of the foregoing will make the special 
 jiartner liable as a general partner. See 15 Central Law Journal 442, 
 4(52. 
 
 In addition to the foregoing the following points must be observed ; — 
 
 (1) No profits or interest may bo withdrawn by the special partners which 
 will depreciate the original capital. 
 
 (2) The partnershij) must not be terminated before the tiiiie designated in 
 the certificate without the observance of the formalities prescribed by 
 s. 19. 
 
 Buslnesges Within the Act. A partnership formed for the purpose of build- 
 ing and ninning steamboats is within the Act ; Bowes v. Hall and Holland 
 (1857) 14 U.C.R. 3I(). 
 
 Cash Payment, 
 exchange is bad. 
 
 The payment 
 Whittcmore 
 
 must be in cash. A payment bj' bills of 
 V. Macdonell (1857) (iC. P. 547, and so is a 
 
 pavment by surrendering to the general partner notes held against him ; Bena 
 diet V. Van Allen (1850) 17 U.C;.R. 234. 
 
 Durant v. Abendroth (1877) 00 N.Y. 148. 
 
 An unmarked cheque is insutfieient ; 
 
LIMITED PAHTNEKSIIIPS. 
 
 489 
 
 Intermeddling. Where there were 83 limited partnerB who appointed a com- 
 nii*'ce to advise the general partner who interfered in the ouHinosa of the 
 paj'tnership all the memhers of the committee were held liiilile as general 
 partners; Whittemore v. Macdonell (1857) 6 C. P. ">47 ; Howes v. Hall and 
 Holland (1857) 14 U.U.R. 316. See Davis v. Bowes (18.-)7) 15 U.C.R. 280. 
 
 Effect of Becoming General Partners. Once a special i)artner becomes liable 
 as a general partner he cannot 1)V ceasing liis interference, or otherwise, escape 
 liability as such ; Hutchison v. 6owes (1857) 15 U.C.R. 156. 
 
 Representations by Special Partner. A representation to a creditor by the 
 special partner that he is a partner and has an interest in the business will 
 make liim lialile to the creditor ; Watts v. Taft (1858) 16 U.C.R. 256. 
 
 Rights Inter se. If a special partner becomes chargeable as a general partner 
 by rea.son of some act of the general partner done without his knowledge or 
 consent he will be entitled to indemnity against liability to the creditors of 
 the partnership ; Patterson v. Holland (1858) 6 (Jr. 414, but if by interference 
 or by not paying the amount of their contribution in cash they become liable 
 as such, th» special partners will bo liable to contribute ratably as between 
 themselves in the same way as if they were general partners ; Patterson v. 
 Holland (1858) 6 Gr. 414, 7 Or. 1. 
 
 ' Selling Ooods to Partnership. A special partner should not make any profit 
 by dealing with the partnership ; Patterson v. Holland (1858) 7 ' h: 1. 
 
CHAPTER 162. 
 
 An Act respecting the Registration of Co-Partnerships 
 and Business firms. 
 
 
 -/- 
 
 r 
 
 Declarations of partnership to 
 
 BE FILED, 8. 1. 
 
 Form, 8. 2. 
 
 When to be tiled, s. 3. 
 
 Duclaration where alteration in 
 partnership, s. 4. 
 
 Allegations of declarations not 
 controvertible by the signers, 
 8. 5. 
 
 Signers to be partners until a 
 new declaration filed, s. 7. 
 Declaration of dissolution, b. 6. 
 Actions against partners not fil- 
 ing declaration, 8. 8. 
 
 Declaration by person tkadino 
 under a business name not 
 
 HIS OWN, S. 9. 
 
 Form, 8. 10. 
 Penalty for not filing declar- 
 ation, 8. 11. 
 Registration of declarations, s. 
 12. 
 Form of index books, 88. 13, 14. 
 Firm index book, s. 14. 
 individual index book, s. 15. 
 Fees of registrars, s. 10. 
 Furnishing books, s. 17. 
 Act not to apply to cheese manu- 
 facturing COMPANIES, 8. 18. 
 
 r: 
 
 HER MAJESTY, by and with the advice and con.sent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 a.s folio W.S : — 
 
 Persons in | — (1) AUpersons associated in partnership for trading.manu- 
 
 oftrtnBrsniD to * ^ 
 
 deliver a factui'ing or mining purposes, shall cause to be delivered to the 
 
 declaration to registrar of the registry division in which they carry or intend 
 egis rar. ^^ ^arry on business, a declaration in writing, signed by the 
 several members of such co-partnership. 
 
 When some of (2) If, however, any of the said members are absent from the 
 absent. "^^ ^^^ place where they carry or intend to carry on business, at the 
 time of making the declaration, then the declaration shall be 
 signed by tbe members present in their own names, and also 
 for their absent co-members, under their special authority to 
 that effect, and such special authority shall be at the same time 
 filed with the registrar and annexed to the declaration. 
 R. S. 0. 1887, c. 130, s. 1. 
 
 Requisites of 
 eclaration. 
 
 "i. The declaration shall be in the form or to the effect 
 of Schedule A to this Act, and shall contain the names, sur- 
 names, additions and residences of each and every partner as 
 aforesaid, and the name, style or firm under which they carry 
 on or intend to carry on such business and shall state also the 
 time during which the partnership has existed or is to exist, and 
 
 [490] 
 
Sec. 8 (1). REGISTRATION OF CO-PARTNERSHIPS. Chap. 162. 491 
 
 shall declare that the persons therein named are the only 
 members of such co-partnership. R. S. O. 1887, c. 130, s. 2. 
 
 3. The declaration shall be filed within six months next after Time of filing 
 the formation of the partnership. R. S. 0. 1887, c. 130, s. 3. declaration. 
 
 4. A similar declaration shall in like manner be filed when Declar«tion 
 and so often as any change or alteration takes place in the inpartnerehm 
 membership of the partnership, or in the name, style or firm 
 
 under which they intend to carry on business, or in the place 
 of residence of any member of the firm ; and every new 
 declaration shall state the alteration in the partnership. R. S. 0. 
 1887, c. 130, s. 4. 
 
 5. The allegations made in the declarations aforesaid shall AllegationB in 
 not be controvertible as against any party by any person who tjon noUo ioe 
 has signed the .same, nor as against any party not being a controvertible 
 member of the partnership by any person who lias signed the gOn^'** 
 same, or who was really a member of the partnei'ship therein 
 mentioned at the time the declarations were respectively 
 
 made. R. S. 0. 1887, c. 130. s. 5. 
 
 0. Upon the dissolution of a partnership, any or all of the Declar&tion of 
 persons who composed the partnership may sign a declaration partnership"^ 
 certifying the dissolution of the partnership : such declaration 
 may be in the form of Schedule B to this Act. R. S. 0. 
 1887, c. 130, s. 7. 
 
 7. Until a new declaration is made and filed by him, or by 
 his co-partners or any of them as aforesaid, no person 
 who shall have signed the declaration filed shall be deemed 
 to have ceased to be a partner ; but nothing herein con- 
 tained shall exempt from liability any person who, being 
 a partner, fails to declare the same as already provided, 
 and such person may, notwithstanding such omission, be 
 sued jointly with the partners mentioned in the declaration, or 
 they may he sued alone, and if judgment is recovered against 
 them, any other partner or partners maj' be sued jointly or 
 severally in an action on the original cause of action upon 
 which the judgment was rendered; nor shall anything in 
 this Act be construed to affect the rights of any partners with 
 regard to each other, except that no declaration as aforesaid 
 shall be controverted by any person who has signed the same. 
 R. S.O. 1887, c. 130, s. 6. 
 
 Persons sign- 
 ingdeclaration 
 to be deemed 
 partners till 
 new declara- 
 tion is filed, 
 
 Liability of 
 partners fail- 
 mg to declare 
 the same. 
 
 Rights of 
 partners be- 
 tween them 
 selves. 
 
 8. — (1) If any persons are associated as partners for the pur- How actions 
 pose of trade, and no declaration is filed under this Act with brought 
 regard to such partnership, then any action which might be against 
 brought against all the members of the partnership may also be tr*£^e not fil- 
 brought against any one or more of them, as carrying on or as ingdeclara- 
 having carried on business jointly with others, without naming *'""• 
 such others in the writ or declaration, under the name and style 
 
492 
 
 2 
 
 c 
 
 s^; 
 
 9^ 
 
 Gv 
 
 When the ac- 
 tion in found- 
 ed on any ob- 
 ligation in 
 writing. 
 
 Cliap. 152. HEQIHTRATION OF CO-PARTNERSHIPS. SeC. 8 (1). 
 
 of their said co-partnership firm; and if judgment be recovered 
 against him or them, any other partner or partners may be 
 sued jointly or severally on the original cause of action on which 
 such judgment is rendered. 
 
 (2) If any such action be founded on any obligation or instru- 
 ment in writing in which all or any of the partners Ijound by it 
 are named, then all the partners named therein shall be 
 made parties to such action ; and a judgment rendered against 
 any member of such existing co-partnership for a partnership 
 debt or liability, may be executed by process of execution 
 against all and evexy the partnership stock, property, and effects, 
 in the same manner, and to the same extent as if such judg- 
 ment had been rendered against such co-partnership. R. S. O. 
 1887, c. 130, s. 8. 
 
 A person 9. Every person who is engaged in business for trading, 
 
 Btylelndicates manufacturing, or mining purposes, and who is not associ- 
 
 idurality to ated in partnership with any other person or persons, but 
 
 ^mi* '^®°'*'^*" who uses as his business style some name or designation other 
 
 than his own name, or who in such style uses his own name 
 
 with the addition of " and Company," or some other word or 
 
 phrase indicating a plurality of members in the firm, shall 
 
 cause to be delivered to the registrar of the registry division 
 
 in which such person carries on or intends to carry on business, 
 
 a declaration in writing, signed by such person. R. S. 0. 1887, 
 
 c. 130, s. 9. 
 
 Form ot 
 declaration. 
 
 e" ■ 
 
 HO. Such declaration shall contain the name, surname, ad- 
 dition, and residence of the person making the same, and the 
 name, style or firm, under which he carries on or intends to 
 carry on business, and shall also state that no other person is 
 associated with him in partnership ; and such declaration shall 
 be filed within six months of the time when such style is first 
 used. R. S. 0. 1887, c. 130, s. 10. 
 
 Penalty for 11. Every member of a partnership or other person re- 
 
 ance!°'"^ ' quired to register a declaration under the provisions of this 
 Act who fails to comply with the requirements of this Act 
 shall forfeit the sum of SI 00, to be recovered before any 
 Court of competent jurisdiction, by any person suing as 
 Application of well in his own behalf as on behalf of Her Majesty ; and half 
 penalty. of such penalty shall belong to the Grown for the uses of the 
 
 Province, and the other half to the party suing for the same, 
 unless the action is brought, as it may be, on behalf of the 
 Crown only, in which case tiie whole of the penalty shall be- 
 long to Her Majesty for the uses aforesaid. R. S. 0. 1887, c. 130, 
 s.ll. 
 
 Registrar to 1 J}. It shall be the duty of the registrar to enter all declara- 
 
 non!^'**^*"^*'^* tions made under this Act in the order in which the same are 
 
 received in a book to be by him kept for that purpose, which 
 
Sec. 18. 
 
 REGISTRATION OF CO-PARTNERSHIPS. Chap. 152. 
 
 493 
 
 shall at all times during office hours be open to the inspection 
 of the public gratuitously ; and for registering each such dec- 
 laration the registrar shall be entitled to receive from the 
 person tiling the same the sum of fifty cents if it does not con- 
 tain more than two hundred words, and at the rate of ten cents 
 per hundred words for all above the number of two hundred. 
 R. S. O. 1887. c. 130, s. 12. 
 
 Registrar'!) 
 feea for filing. 
 
 13. It shall be the duty of each registrar to keep two alpha- Registrar to 
 betical index books of all declarations delivered to him, in pur- kfisptwoin- 
 suance of the provisions of this Act. R. S. O. 1887, c. 130, s. 13. 
 
 1 4. In one of such books, hereinafter called the " Firm In- Form of 
 dex Book," the registrar shall enter in alphabetical order the g^^' ™ ^^^^^ 
 styles of the respective firms, in respect to which declarations 
 
 have been delivered to him, and shall place opposite each such 
 entry the names of the person or persons composing such firm, 
 and the date of the receipt by him of the declaration, in the 
 manner shewn in the form of " Firm Index Book," given in 
 Schedule C to this Act. R. S. O. 1887, c. 130, s. 14. 
 
 15. In the second of such books, hereinafter called the " In- Form of " In- 
 dividual Index Book," the registrar .shall enter in alphabeti- jg" BcTok^" 
 cal order the names of the respective members (jf each of .such 
 
 firms, and shall place opposite such entry the style of the firm 
 of which such person is a member, and the date of the receipt 
 of the declaration, in the manner shewn in the form of " Indi- 
 vidual Index Book," given in Schedule D to this Act. R. S. O. 
 1887, c. 130, s. 15. 
 
 10. The registrar shall be entitled to charge for searches Registrar's 
 the following fees and no more : fees for certain 
 
 ° services. 
 
 For searching in Firm Index — each firm ten cents ; 
 
 For searching in Individual Index — each name ten cents ; 
 
 For each certificate, when rec^uired — twenty-five cents. 
 
 R. S. 0. c. 1887, 130, s. 16. 
 
 11. All the books required for the purposes of this Act shall Who to fur- 
 be furnished by the treasurer of the municipality, whose duty booksr^^ "^ 
 it is to furnish registry books (or in case of his default, by 
 
 the registrar), in the same manner as other registry books. 
 R. S. O. 1887, c. 130, s. 17. 
 
 1 8. This Act shall not be construed to apply to as.«ociations Cheese manu- 
 of individuals for the manufacture of cheese and contributing fa^tu""? Cof. 
 produce from their dairies for that purpose. R. S. 0. 1887, c. 130, 
 S.18. 
 
 1 
 
 1., ' 
 
494 
 
 Chap. 152. UEGISTRATION OF CO-PAUTNERSHIl'S. Sched. A. 
 
 O 
 
 
 i 
 
 2 
 
 
 SCHEDULE A. 
 (Sectimi, 2.) 
 
 DECLARATION OF CO-PARTNEU.SUir. 
 
 '•} 
 
 Province of Onturio, 
 County of 
 
 We of 
 
 patiwi) and of 
 
 {occupatmi), hereby certify 
 
 in 
 in 
 
 {occu- 
 
 1. That we have carried on and intend to carry on trade and business 
 as at in partnership, under 
 
 the name and firm of . {or, I (or we) the 
 
 undersigned, of in , hereby certify 
 
 that I {or we) have carried on and intend to carry on trade and buHineas 
 as at in partnership with C. D. of 
 
 and E. F. of (as the case may be). 
 
 2, That the said partnership has subsisted since the 
 18 . 
 
 day of 
 
 3. And that we, {or I {or we) and the said G. D. and 
 
 E. F.) are and have been since the said day the only members of the 
 said partnership. 
 
 Witness our hands at 
 
 18 
 
 this day of 
 
 R, S. O. 1887, c. 130, Sched. A. 
 
 ij 
 
 SCHEDULE B. 
 (Section 6.) 
 
 DECLARATION OF DISSOLUTION OF TARTNEKSHIP. 
 
 J D€ 
 
 Province of Ontario, 'i I, 
 
 County of | formerly a member of the firm carrying on busi- 
 
 ness as 
 
 at , in the County of , under 
 
 the .style of , do hereby certify that tlie said 
 
 partnership was on the day of dissolved 
 
 Witness my hand, at 
 , 18 . 
 
 , the day of 
 
 R. S. 0. 1887, c. 130, Sched. B. 
 
i A. 
 
 Sched. D. registratiov of co-partnerships. Chap. 152. 
 
 495 
 
 (OCCU' 
 
 UBiness- 
 under 
 Are) the 
 certify 
 usinesa 
 
 ioy be). 
 
 day of 
 
 and 
 
 I of the 
 
 d. A. 
 
 O 
 
 o 
 
 o 
 
 ^ S Q 
 
 w 
 
 a 
 
 o 
 
 
 ti busi- 
 
 . under 
 t the i-aid 
 dissolved 
 
 day of 
 led B. 
 
 P^ 
 
 M (m h. La .- t>, 
 
 .o j3 j:.c CI? 
 
 i;^ 
 
 ^ OJ -, rt .-* t- 
 
 ^ 
 
 :^ 
 
 
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 CO 
 
 P 
 
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 o 
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 o 
 
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 O 
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 H 
 
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 H 
 CO 
 
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 8 
 
 Q 
 SB 
 
 I— I 
 
 O 
 
 in 
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 Scio fefefeSc 
 
 r^ ^^ r-t rH .-, r^ 
 
 .- ,• kT kT .- .-e-le'' 
 
 E 2E EEC j;;;; 
 
 « 0) 1; i 1, a/J;,2 
 
 ;<. pb U. U< ^L, b* ^ a^ 
 
 ^ j= .c .i: j= X .i= j= 
 
 ' o 
 
 O Oh^ o 
 
 M 
 
 o| 
 
 
 -f, 3 
 
 . i 13 K 
 
 be 
 
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 n 
 
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 J2^ ~ r '^ S-2 o 
 
 •s-fr 
 
 .2-g-Sg 
 
 sip 
 
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 •a:5 « S 
 
 S.S a i 
 
 3 5 2 2 
 
 S S h O 
 
 «-2 £» 
 
 a S-jaja 
 
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 V » St) 
 
 a§-s 
 
 e^ 
 
496 
 
 REGISTRATION OF CO-PARTNERSHIPS. 
 
 NOTES. 
 
 o 
 
 c 
 
 g 
 
 s 
 
 C 
 
 ;s1 
 
 lU\. 
 
 A|5' 
 
 Object of the Act. Tho object of tlie Act was the removal of difficulties 
 whicji persons having claims against firms bearing a certain designation experi- 
 enced in ascertainnig the correct names and addresse.-i of all whom they were 
 entitled to hold as nienii)ers, and the protection of creditors from being preju- 
 diced or misled b_\ a change in the membership while the name remained unal- 
 tered or by a change in tlic name without anv alteration in the personnel; per 
 Moss C.J.b., IJinik of Toronto v. Nixon (IHTlt) 4 A.R. 34{), 34!). 
 
 Suing in Partnership Name. The changes in procedure made by an<l since 
 the Judicatui'o Act enable a partnership to be now sued in the partnership 
 name, and a juilgment recovered in such .suit will lie a judgment against all 
 persons wl\o were actually partners in the tiini. Where a firm's name is used 
 it is only a convenient method for denoting those per.sona who compose the 
 ill n at tile time when that name is used, and a [ilaintitt' who sues jiartneis in 
 the name of tlieir firm in truth sues them individually, just as much as if he 
 had set out all their names, per Lindley L.J. Western National Bank v. Perez 
 (1891) 1 Q.B. o04, 314 ; Re Sinclair v. Hell (1807) -28 O.Il. 483. But it would 
 not amount to a judgment against a person not actually a partner, who would, 
 however, be liable as a nominal partner by having held himself out as a pai't- 
 ner; Re Young v. Parker (1888) 12 I'.R. ii4(j; Standaiil Bank v. Frind (1893) 
 15 P. R. 438, and til" judgment would destroy all liability of tiie ]ierson who 
 ■would be linble as a nominal yjartner; Si arf v, Jardine (1882) 7 App. Cas. 3i5. 
 
 iiulng Partners Individually. When all the partners are within the juris- 
 diction and any 'f th"m are sued individual'.y, a judgment in an action against 
 one would but for the provisions of the Act lie a bar to a subse(|uent action 
 against ihe others. ^Iullster v. Cox (188/)) 10 A[ >. .'as. (580; King v. Hoare 
 U84;")) 13 M. & W. 494 ; Kendall v. Hamilton (1879) 4 ^.pp. Cas. ".04 ; Toronto 
 I^ental Co. v. McLaren (1890) 14 P.R. 89; and the rule ai>plies where all tiie 
 partners are originally made defendants to ai. ' enter appenrancos ui the same 
 action and judgment by consent is obtained against one of them in tiiat action ; 
 McLeod v. Power (189S) 2 Ch. 29o; but ■•^enilili- not where judgment is obtained 
 against one before the others bj- default, ib. 
 
 The rule is still the same where the paruiership is registered. 
 
 Where the partnership is not regi.^tered the suing and obtaining judgment 
 again.it one or more partners is not a bar to an action upon the original cause 
 of action ajjaiiist the other partners, ss. 7 and 8. 
 
 Dissolution. The rcairangeiuent of the fith and 7th sections of tlie Act upon 
 tlie revision ill 1897 wc/uhl appear to make the rcgistivilion of a ccrtilicate of 
 dis.solution compulsory, '''be registration of siu'ii a certificate was formerly 
 optional ; Bank of Toronto v. Nixon (1879) 4 A.R. .S4(). 
 
 There would appear to be nothing in the Statute dispensing with the require- 
 ments of the coiunion law as to the notice of dissolution rcciuired to lie given 
 so as to absolve a retiring |)artner as against jiersons wlio had no notice of the 
 dissolution; see Wiglc v. Williams (189.")) 24 S.C. R. 713. 
 
 Public iiotico of dissolution giveii by a<tvertisement in the Gazette is suffici- 
 ent, not only against all wlio can lie shown to l.ave seen it, Imt also as against 
 all who had no dealings with the old firm wliether they .saw it or not. But 
 an adverti.'-emi lit in any other paper is no cn ideuce against any or.e who can- 
 not bo shown to have seen it: Lindley on pHrtnci-ship, .")tli Kd. 222; Hendry v. 
 Turner (I88()) 32('li. I), 'A'm. An advertisement, however, is not indispon- 
 Kible; its ))laco may be supplied by soiuethiiig else. Any notice t(> old custo- 
 mers and a cliangi' of sign or name of tiiiu as to new customers will be sutlicient 
 evidi'iice to go \i> tlie jury of notice of the di.ssolution, ib. see Darling v. 
 Magimii (185.')) I'J U.C.K. 471. 
 
 Suing for Penalty. Two persons may sue for the penally and two or more 
 ])artiiers may be joined as (lefendaiits in the acti(ui; Chajiut v. Robert (1887) 
 14 A.R. 3.54. The action must be broiiglit within one year, 31 Kliz. c. 5, s. 6; 
 Dyer v. Best (180t}) 4 H. & C. 189. 
 
REGISTRATION OB' CO-PARTNERSHIPS. 
 
 Partnerships Within the Act. The Act extends only to trailing, niamifaotur- 
 ingand mining paitnor.sini)S. Associations for the manufacture of cheese from 
 produce contributed from the dairies of the members are excepted, s. 18. 
 
 Trading in Firm Name. A man may carry on business in a firm name, but if 
 tl' ^ name indicated a plurality of members, he must witiiin six niontlis register 
 a declaration that nt) other per.son is associated with him or ho will be liable 
 to a penalty. A person carrying on business in a firm name nuist sue in his 
 own name; Mason v. Mogri<Ige (1892) 8 T.L.R. 805, but if the name is liis own 
 followed by the words "& Co." an amendment striking them out will be 
 granted as of course; Lang v. Thompson (189;5) 10 P.R. 510. A person car- 
 rying on business within Ontario in a name or style other than his own name 
 may l)e sued in sucii name oi' style. C. R. 21]]. 
 
 497 
 
 per 
 
 Ol 
 
CHAPTEE,iJ^56. 
 
 C. 
 
 It 
 
 5 
 
 
 I V-v-*-* 
 
 An Act respecting Wages. 
 As amended by 62 V. c. 17. 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — i 
 
 Application of '• This Act shall apply to wages or salary whether the em- 
 Act, ploy ment in respect of which the same shall be payable, be, by the 
 
 day, by the week, by the job or piece or otherwise. R. S. O. 
 
 1887, c. 127,8.4. 
 
 Wapes or 
 salaries to 
 have ^Jriority 
 en assign- 
 ments for 
 benefit of 
 reditors. 
 
 f 
 
 '•ftcK 
 
 And in 
 winding up 
 proceedings 
 under Rev. 
 Stat. c. 222. 
 
 ?8. Whenever an assignment is made of any real or personal 
 property for the general benefit of creditors, the assignee sliall 
 pay in priority to the claims of the ordinary or general creditors 
 of the person making the same, the wnges or salary of all persons 
 in the employment of such person at the time of the making of 
 such assignment, or within one month before the making 
 thereof, not exceeding three months' wages or salary, and such 
 persons shall be entitled to rank as ordinary or general creditors 
 for the residue, if any, of their claims. R. S. 0. 1887, c. 127, s. 1. 
 
 ;{. In distributing the assets of a company under the pro- 
 visions of The Joint Stock Goyapanies' Winding-uj) Act, the 
 liquidator shall pay in priority to the claims of the ordinary 
 or general creditors of the company the wages or salary of all 
 persons in the employment of the company at the time of the 
 making of the winding-up order, or within one month before 
 the making thereof, not exceeding three months' wages or 
 salary, and such persons shall ba entitled to rank as ordinary 
 or general creditors of the company for the residue, if any, of 
 their claims. R. S. 0. 1887, c. 127, s. 2. 
 
 And over 
 execution 
 creditors. 
 
 Rev. Stat, 
 0.78 
 
 4. All pei'sons who are at the time of the seizure by the 
 Sheriff, or who within one month prior thereto have been in 
 the employment of the execution debtor, and who shall become 
 entitled to share in the distribution of money levied out of the 
 property of a debtor within the meaning of Th^Grediiors 
 Relief Act, shall be entitled to be paid out of such money 
 the wages or f-alary due to them by the execution debtor, 
 not exceeding threamonlliH' wages or. salary, in priority to the 
 claims of the other creditors of the execution debt(>r, and shall 
 be entitled to share pro rata with such other creditors as to the 
 residue, if any, of their claims. R. S. 0. 1887, c. 127, s. 3; 
 55 V. c. 27, s. 1. 
 
 [498] 
 
 1st 
 
 or 
 
 fr( 
 
 bii 
 
 of 
 
 oti 
 
 th: 
 
 or 
 
 sai 
 
Sec. 5. 
 
 PRIORITY OF WAGES. 
 
 Chap. 156. 
 
 499 
 
 5. All persons in the employment of an absconding debtor And in case of 
 at the time of a seizure by the Sheriff under The A ct respect- attachment. 
 ing Absconding Debtors or within one month prior thereto, 
 
 shall be entitled to be paid out of any moneys realized out of 
 
 the property of such debtor, by such Sheriff the wages or salary Rev. Stat. 
 
 due to them by the absconding debtor, not exceeding three "' 
 
 months wages or salary, in priority to the claims of the other 
 
 creditt)rs of the absconding debtor and .shall be entitled to shai'e 
 
 pro rata with such other creditors as to the residue, if any, of 
 
 their claims. 55 V. c. 27, s. 2. 
 
 6. In the administration of the estate of any per-son dying And in ad- 
 on or after the 13th day of April, 1897, any person in the ^f'"'**''**'"° 
 
 estates. 
 
 employment of the decea.sed at the time of his death, or with- 
 in one month prior thereto, who i.s entitled to share in the 
 distribution of the estate, shall be entitled to his salary or 
 wages not exceeding three months thereof in priority to the 
 claims of the ordinary or general creditors of the deceased, 
 and such person shall be entitled to rank as an ordinary or 
 genenil creditor of such decease I person for the residue, if. 
 any, of his claim. 60 V. c. 23, ss. 1, 2. 
 
 7. — (1) No debt due or accruing to a mechanic, workman Debts due to 
 labourer, servant, clerk or employee, for or in respect of his ^c°f,^"waKeB 
 wages or salary, shall be liable to seizure or attachment, unless not to be 
 such debt exceeds the sum of $25, and then only to the extent attached, ex- 
 
 01 such excess. over $25. 
 
 (2) Nothing in the preceding sub-section contained shall affect Savini? clause 
 ur impair the right or remedies of any creditor whose debt has »» to dHbts 
 been contracted before the first day of October, 1874. R. S. O. isroct istT 
 1887, c. 64, s. 8. 
 
 8. This Act is not intended to apply to an assignment Not to inter- 
 made under the provisions of any Act of the Parliament of j^Ji^,^i'|j, xn^ 
 Canada relating to or respecting bankruptcy or insolvency, solvency Act. 
 R.S.0.1S87,c. 127,8.5. 
 
 [As to tV'tges payable to employees of contractors for public 
 works, see Cap. 155.] 
 
 9. — (1) The wages in respect of which priority is liorein- When wages 
 before in this Act conferred and declared shall become due and ondfRUM^ution 
 be payable by the assignee, liquidator, sheriff, executor, admin- of estate by 
 istrator or other person charged with the dutv of windincr up aan'^nee, «d- 
 or distributing the various estates aforesaid within one month etc. ' 
 
 from the time when tihe e.state so being wound up or distri- 
 buted shall have been received by or placed under the control 
 of such assignee, liquidator, .sheriff, executnf, administrator or 
 other person as aforesaid unless h shall appear to him or them 
 that the said estate is not of sufficient value to pay the claims 
 or charges (if any) thereon having by law priority over the 
 said prior claim for wages, and the ordinary expenses and dis- 
 
 </, 
 
500 
 
 Chap. 156. 
 
 PRIORITY OF WAGES. 
 
 Sec. 9 (3). 
 
 
 n: 
 
 bursenients of winding up and distributing the said estate ; 
 but such ordinary expenses shall not include the cost of litiga- 
 tion or other unusual expenses concerning the estate or any part 
 thereof, unless the person entitled to the said lien for wages 
 shall have consented in writing to such proceedings being 
 taken before they v/ere commenced or shall afterwards have 
 adopted or ratified in writing such proceeding. 
 
 Protection of (2) Provided that in the case of such prior claims for wages 
 assipiee, etc., as aforesaid the said assignee, liquidator, sheriff, executor, 
 fo*/w^e8.*'™* administrator or other person engaged in winding up or dis- 
 tributing an estate may forthwith upon such estate coming to 
 his hands, paj' the said prior claims for wages without being 
 chargeable in case it shall in the end appear that such estate 
 was insufficient to have justified such payment provided he 
 has acted in good faith and has reasonable grounds to believe 
 that the estate would prove sufficient. 
 
 (3) Any number of lien holders in respect of such prior claims 
 for wage." upori the same estate may join in any action, suit or 
 other proceeding for the enforcement of such claims. 62 V. 
 C.17. 
 
 Lien holders 
 joiniug in 
 action for 
 wages. 
 
 i 
 
 71 
 
PRIORITY OF WAGES, 
 
 501 
 
 NOTES. 
 
 Who are Eititled to Priority. IViority for wagow to the atnouiit limited l)y 
 the Act is gi .•en " to all persons in tiie employment " of tiie (.'ompany <ii' person 
 whoso estate is being a<lniinistere(l at the time of the liai)i)ening of the event 
 which occasions the administration, or within one month jirior thereto. It 
 will be noticed that the words "persons in the employment of" are wider 
 than tlie words of s. 7, exempting wages or salary of "mechanics, workmen, 
 labourers, servants, clerks or em|)loyees."' Under the latter section a Medical 
 Health Officer is not an employee ; Macfie v. Hutchinson (1887) 12 P.R. 167 ; 
 Forsyth v. Canniff (1890) 20 O.R. 478. A salary of £200 a year of a Secretarv 
 of a Company was heUl not to be "wages of a servant" within the Knglisn 
 Wages Attachment Abolition Act ; (iordon v. Jennings (1882) 9 Q.B.D. 145. 
 
 A person who at a postmaster's request gratuitously assisted him in assort- 
 ing letters was held to be within tlie piirase " person employed uii.'jr the Post 
 Office" ; R. v. Rea.son (1854) 22 L.J.M.C. 11. A music master giving lessons 
 twice a week at a school at so much an hour is not a "clerk or servant"; 
 Ex parte Walker (1873) L.R. 15 Eq. 412; see also Ex parte Harcourt (1875) 
 31 L.T. 188. 
 
 A foreman engaged in hiring and discharging nitn, paying wages and doing 
 no manual labor is not a "labourer, servant or apprentice" within s. 85 of the 
 Ontario Companies Act, R.S.O. c. 191 ; Welch v. Ellis (1895) 22 A.R. 255. 
 
 An auditor is not a "clerk or other j;erson in the employment of a company " 
 within The Winding Up Act, R.S.O. c. 129, s. 5(5. Re Ontario Forge and 
 Bolt Co. ; Townsend's Case (1896) 27 O.R. 230. 
 
 Thei-e is no reported case as to the construction of the words "persons in 
 the employment " contained in tlie Act. It is submitted that tiie relationship 
 of master and servant nnist exist to entitle an employee to the priority 
 prescribed. 
 
 The services should belong to the master exclusively ; Ex parte Oldham 
 (1875) .32 L.T. 181 ; Ex parte Butler (1873) 28 L.T. 375. 
 
 The relation of master and servant exists only between persons of whom the 
 one has the order and control of tlie work done l)y the other. A master is one 
 who not only prescribes to the workman the end of his woik, but directs, or 
 at any moment maj' direct the means also, or, as it has been ['ut, " retains the 
 
 Power of controlling the work." Sadler v. Henlock (18.V)) -i E. & 15. 570; 
 ollock on Torts, 5th Ed. ji. 75 ; Yeweiis v. Noakes (1880) 6 Q.B.D. .530. 
 
 A commercial traveller, Ex parte Neal (1827) Mont. & McA. 194 ; an editor. 
 Ex parte Chipchase (1863) 7 L.T. 290 ; seamen. Re Dawson (1850) 1 Fonb. N.R. 
 229 ; and persons paid by the piece. Re AUsop (1875) 32 L.T. 433 ; Ex parte 
 Hollyoak (1887) 35 W.R. .396, are all servants, but a person paid by commis- 
 sion is not ; Ex parte Simmons (1874) 30 L.T. 311 ; Ex parte Hickin (1850) 19 
 L.J. Bank. 8 ; is not. 
 
BILLS OF EXCHANGE. 
 
 g 
 
 
 i 
 
 r: 
 
 
 
 53 VICTORIA, CHAP. 33.-) 
 64-55 VICTORIA. CHAP. 17. t DOMINION. 
 60-61 VICTORIA, CHAP. 10. ) 
 
 An Act relating to Bills of Exchange, Cheques and 
 Promissory Notes. 
 
 As amended. 
 
 HER Majesty, by and with the advice and consent of the 
 Senate and House of Commons of Canada, enacts as 
 follows: — 
 
 PART 1. 
 
 PRELIMINARY. 
 
 Short title. 1. This Act may be cited as "The Bills of Exchange Act, 
 
 Imp. Act 8. 1 1S90 " 
 Interpretation 
 
 ^""^ed^"'' *" ^ ^- ^" ^'^^^ ^^^' uriisss the context otherwise requires, — 
 "Acceptance" (a.) The expression "Acceptance" means an acceptance com- 
 pleted by delivery or notification; 
 
 (b.) The expression "Action" includes counter claim and 
 set off; 
 
 (c; [The expression "Bank" means an incorporated bank or 
 savings bank carrying on business in Canada;] 
 
 id.) The expression "Bearer" means the person in possession 
 of a bill or note which is payable to bearer; 
 
 (e.) The expression " Bill " means bill of exchange, and 
 "Note" means promissory note; 
 
 (/.) The expression "Delivery" means transfer of possession, 
 actual or constructive, from one person to another; 
 
 (flf.) The expression "Holder" means the payee or indorsee 
 of a bill or note vi'ho is in possession of it, or the bearer 
 thereof ; 
 
 (Ji.) The expression "Indorsement" means an indorsement 
 completed by delivery ; 
 
 (i.) The expression "Issue" means the first delivery of a 
 bill or note, complete in form, to a person who takes it as a 
 holder ; 
 
 (J.) The expression "Value" means valuable consideration; 
 
 {k.) [The expression "Defence" includes counter-claim.] 
 
 [3oy I 
 
 "Action." 
 
 "Bank." 
 "Bearer." 
 
 "Bill;" 
 
 "Note." 
 
 " Delivery, 
 "Holder." 
 
 " IndofBe- 
 ment." 
 
 "Issue." 
 
 "Valne." 
 "Defence." 
 
BILLS OF EXCHANUE. 
 
 503 
 
 PART II. 
 
 BILLS OF EXCHANGE. 
 
 Form and Interpretation. 
 
 3. A bill of exchange is an unconditional order in writing, Bill of ex- 
 addressed by one person to another, signed by the person giving i^p^^^ct l"!*^ 
 it, requiring the person to whom it is addressed to pay, on 
 demand or at a fixed or determinable future time, a sum certain 
 in money to or to the order of a specified person, or to bearer: 
 
 2. An instrument which does not comply with these con- When instm- 
 ditions, or which orders any act to be dpne in addition to the ^g^^biu"* 
 payment of money, is not, except as hereinafter provided, a 
 
 bill of exchange: 
 
 3. An order to pay out of a pai-ticular fund is not uncon- Unconditional 
 ditional within the meaning of this section; but an uncjualified order defined, 
 order to pay, coupled with (a) an indication of a particular 
 
 fund out of which the drawee is to re-imburse himself, or a 
 particular account to be debited with the amount, or (/)) a 
 statement of the transaction which gives rise to the bill, is 
 unconditional : 
 
 4. A bill is not invalid by reason — 
 
 (a.) That it is not dated; 
 
 (&.) That it does not specify the value given, or that any 
 value has been given therefor; 
 
 (c.) That it does not specify the place where it is drawn or 
 the place where it is payable. 
 
 4. An inland bill is a bill which is, or on the face of it pur- Inland and^ 
 ports to be, (a) both drawn and payable within Canada, or (h) juip. Acts. 4 
 drawn within Cniiada upon some pei\son resident tlierein. Any 
 other bill is a i'oreign bill: 
 
 2. Unless the contrary appears on the face of the bill, the l^ f""*;'^'^ 
 holder may treat it as an inland bill. 
 
 Bill not in- 
 valid for rea- 
 sons specified. 
 
 as foreign. 
 
 If differeno 
 parties to bill 
 are the same 
 person. 
 
 Imp. Act n. 6. 
 Option of 
 holder in case 
 specified. 
 
 5. A bill may be drawn payable to, or to the order of, the 
 drawer; or it may be drawn payable to, or to the order of, the 
 drawee. 
 
 2. Where in a bill drawer and drawee are the same person, 
 or where the drawee is a fictitious person or a person not 
 having capacity to contract, the holder may treat the instru- 
 ment at his option, either as a bill of exchange or as a promis- 
 sory note. 
 
 6. The drawee must be named or otherwise indicated in a Drawse to be 
 bill with reastmable certainty: Imp" Act s. 6. 
 
 2. A l)ill may be addressed to two or more drawees, whether if there are 
 they are partners or not; but an order addressed to two drawees '""•■^*''*" '"'"• 
 in the alternative, or to two or more drawees in succession is 
 not a bill of exchanare. 
 
504 
 
 lULLS OF EXCHANGE. 
 
 O 
 
 -y 
 (••• 
 
 
 Certainty re- 
 quired as to 
 fayee. 
 mp. Act 8. 7. 
 If payable to 
 two or more 
 pavees, or to 
 holder of office 
 
 If payee is 
 non-existiDg. 
 
 Certain bills 
 valid but not 
 negotiable. 
 Imp, Act 8, ) 
 
 Payable to 
 order or 
 bearer. 
 
 To bearek. 
 
 To order. 
 
 Option of 
 payee. 
 
 7. Wlicre a bill is not payable to bearer, the payee must be 
 named or otliorwise indicated therein with reasonal)le certainty: 
 
 2. A bill may be made payable to two or more payees 
 jointly, or it may be made payable in the alternative to one 
 of two, or one or some of several payees. A bill may also 
 be made payable to the holder of an office for the time being : 
 
 3, Where the payee is a fictitious or non-existing person, the 
 bill may be treated as payable to bearer, 
 
 8, When a bill contain.s words prohibiting transfer, or 
 indicating an intention that it should not be transferable, '\\, i.s 
 valid as between the parties thereto, but it is not negotiaV)le: 
 
 2, A negotiable bill may be payable either to order or to 
 bearer : 
 
 3, A bill is payable to bearer which is expressed to be so 
 payable, or on which the only or last indorsement is an in- 
 dorsement in blank : 
 
 4, A bill is payable to order which is expi'essed to be so 
 payable, or which is expressed to be payable to a particular 
 person, and does not contain words prohiVjiting transfer or 
 indicating an intention that it should not be transferable: 
 
 5, Where a bill, either originally or by indorsement, is 
 expressed to be payable to the order of a specified person, and 
 not to him or his order, it is nevertheless payable to him or his 
 order, at his option. 
 
 r: 
 
 2 
 
 Sum payable, 9- The suua payable by a bill is a sum certain within the 
 Imp, Act B, 9. meaning of this Act, although it is required to be paid — 
 
 (a.) With interest ; 
 
 (b.) By stated instalments ; 
 
 (c.) By stated instalments, with a provision that upon default 
 in payment of any instalment the whole shall become due ; 
 
 (d.) According to an indicated rate of exchange, or accord- 
 ing to a rate of exchange to be ascertained as directed by the 
 bill: 
 
 2, Where the sum payable is expressed in words and also in 
 figures, and there is a discrepancy between the two, the sura 
 denoted by the words is the amount payable : 
 
 3. Where a bill is expi-eased to be payable <vith interest, 
 unless the instrument otherwise provides, interest runs from 
 the date of the bill, and if the bill is undated, from the issue 
 thereof. 
 
 Discrepancy 
 between 
 fignires and 
 words. 
 
 Interest. 
 
 10, A bill is payable on demand — 
 
 (a.) Which is expressed to be payable on demand, or on 
 
 Bill payable 
 on demand. 
 
 IZiJ^""^ '■ ^° presentation ; or— 
 
 
BILLS OF EXCHANGE. 
 
 505 
 
 (b.) In which no time for payment is expressed : 
 
 2. Where a bill is accepted or indorsed when it is overdue, Acceptance, 
 it shall, as regards the acceptor who so accepts, or any indorser etc- when 
 who so indorses it, be deemed a bill payable on demand. 
 
 11. A l)ill is payable at a determinable future time, within Bill payable 
 the meaning of this Act, which is expressed to be payable — *.* * f"'"''^ 
 
 Imp. Act s. 11 
 
 (a) At sight or at fixed period after date or sight : varied. 
 
 (b) On or at a fixed period after the occurrence of a 
 specified event which is certain to happen, though the time of 
 happening is uncertain : 
 
 2. An instrument expressed to be payable on a contingency as to contin- 
 is not a bill, and the happening of the event does not cure the gencies. 
 defect. 54 and 55 Vic. c. 17, s. 1. 
 
 13. Where a bill expressed to be payable at a fixed period Omusionof 
 after date is issued undated, or where the acceptance of a bill date in bill 
 payable at sight or at a fixed period after sight is undated, any date, 
 holder may insert therein the true date of issue or acceptance, Imp- Act e. 12 
 and the bill shall be payable accordingly; 
 
 Provided that (a) where the holder in good faith and by Ab to wrong 
 mistake inserts a wrong date, and (b) in every case where a d^te. 
 wrong date is inserted, if the bill subsedjuently comes into the 
 hands of a holder in due course, the bill shall not be voided 
 thereby, but shall operate and be payable as if the date so in- 
 serted had been the true date. 54 and 55 Vic. c. 17, s. 2. 
 
 13. Where a bill or an acceptance, or any indorsement on Date ;)rma 
 a bill, is dated, the date shall, unless the contrary is proved, be /acte evidence, 
 deemed to be the true date of the drawing, acceptance or vrrwd^***^ ^" ^^ 
 indorsement, as the case may be : 
 
 2. A bill is not invalid by reason only that it is antedated Certain dat; 
 or postdated, or that it bears date on a Sunday [or other nou- ^^^f^ate *" "* 
 juridicial day.] 
 
 
 14. Where a bill is not payable on demand, the 
 which it falls due is determined as follows : — 
 
 day 
 
 0^ Computation 
 of time o| 
 payment. 
 
 (a.) Three days, called days of grace, are, in every case, imp. Act a. 14 
 where the bill itself does not otherwise provide, added to the ifayg of 
 time of payment as fixed by the bill, and the bill is due and grace, 
 payable on the last day of grace : Provided that — 
 
 (1.) Whenever the last day of grace falls on a legal holiday Non-juridical 
 or non-juridical day in the Province where any such bill is ^^'- . ^ 
 payable, then the day next following, not being a legal holiday Act. 
 or non-juridical day in such Province, shall be the last day of 
 grace : 
 
506 
 
 BILLS OF EXCHANGE. 
 
 O 
 
 •••'■■ 
 
 
 What ahall be 
 
 nuoli. 
 
 Not in Imp. 
 
 Act. 
 
 In all Pro- 
 vinces except 
 Quebec. 
 Not in Imp. 
 Act. 
 
 In Quebec. 
 Not in Imp. 
 Act. 
 
 In every 
 Province. 
 Not in Imp. 
 Act 
 
 Days to be 
 computed 
 when time 
 begins to run 
 
 When time 
 begins to run, 
 
 " Months." 
 
 Reckoning of 
 
 time. 
 
 Not in Imp. 
 
 Act. 
 
 (2.) In all matters i-elating to bills of exchange the follow- 
 ing and no other shall be observed as legal holidays or non- 
 juridical days, that is to say : 
 
 (a.) In all the Provinces of Canada, except the Province of 
 Quebec : — 
 
 Sundays ; 
 
 New Year's day ; 
 
 Good Friday ; 
 
 Easter Monday ; 
 
 Christmas Day ; 
 
 Labor Day,: the first Monday in September. 
 
 The birthday (or the day fixed by pi'oclaination for the cele- 
 bration of the birthday) of the reigning Sovereign ; and if 
 such bii'thday is a Sunday, then the following day ; 
 
 The first day of July (Dominion Day), and if that is a Sun- 
 day, then the second day of July as the same holiday ; 
 
 Any day appointed by proclamation for a public holiday, or 
 for a general fast, or a general tbank.sgiving throughout 
 Canada ; and the day next following New Year's Day and 
 Christmas Day, when those days respectively fall on Sunday ; 
 
 {h.) And in the Province of Quebec the said days and also — 
 
 The Epiphany ; 
 The Ascension ; 
 All Saints' Day ; 
 Conception Day ; 
 
 (c.) And also, in any one of the Provinces of Canada, any 
 day appointed by proclamation of the Lieutenant Governor of 
 such Province for a public holiday, or for a fast or thanks- 
 giving within the same, or beinfj a non-juridical day by virtue 
 of a - tatute of such Province : 
 
 3. Where a bill is payable [at sight] or at a fixed period 
 after date, after sight, or after the happening of a speciHed 
 event, 1 ho time of payment is determined by excluding the 
 day from which the time is to begin to run and by including 
 the day of payment : 
 
 4. Where a bill is payable [at sight] or at a fixed period 
 after sight, the time begins to run from the date of the accept- 
 ance if the bill is accepted, and from the date of noting or 
 protest if the bill is noted or protested for non-acceptance, or 
 for non-delivery : 
 
 5. The term " Moiith " in a bill means tlie calendar month : 
 
 6. Every bill which is made payable at a month or months 
 after date becomes due on the same numbered day of the 
 month in which it is made payable as the day on which it is 
 dated — unless there is no such day in the month in which it is 
 made payable, in which case it becomes due on the last daj'^ of 
 that month — with the addifion, in all cases, of the days of 
 grace. 56 Vic. c. 30 ; 57 & 58 Vic. c. 55, s. 2. 
 
IJILLS OF EXCHANGE. 
 
 507 
 
 15. The drawer of a bill and indorser may insert therin Ca^e of need, 
 the name of a person to whom tlie holder may resort in case P' *' 
 of need, that is to say, in case the bill is dishonored by non- 
 acceptance or non-payment. Such person is called the referee 
 
 in case of need. It is in the opinion of the holder to resort to 
 the referee in case of need or not, as he thinks fit. 
 
 16. The drawer of a bill, and any indorser, may insert Optional 
 therein an express stipulation — b ''drawer* o 
 
 (a.) Negativing or limiting his own liability to the holder ; indoraer. 
 [h.) Waiving, as regards himself, some or all of the holder's 
 duties. 
 
 or 
 or 
 
 17. The acceptance of a bill is the signification by the Definition of 
 drawee of his assent to the order of the drawer : acceptance 
 
 2. An acceptance is invalid unless it complies with the fol- ». i/iiequi- 
 
 lowing conditions, namely: — kites of 
 
 ° *' acceptance. 
 
 (a.) It miist be written on the bill and be signed by the 
 drawee. The mere signature of the drawee without additional 
 words is sufficient ; 
 
 (b ) It must not express that the drawee will perform his 
 promise by any other means than the payment of money ; 
 
 3. Where in a bill the drawee is wrongly designated or his Not in Imp. 
 name is misspelt, he may accept the bill as therein described, •^<''' 
 adding, if he thinks fit, his proper signature, or he may accept 
 
 by his proper signature. 
 
 18. A bill maybe nccepted — Time for ac- 
 
 (o.) Before it has been signed by the drawer, or while other- imp. Act s, 
 "wise incomplete ; l^ varied. 
 
 (b.) When it is overdue, or after it has been dishonored by 
 a previous refusal to accept, or by non-payment : 
 
 2. When a bill payable (at sight or) after sight is dishonored Date, in case 
 by non-acceptance, and the drawee subsequently accepts it, the afteJdlshonor 
 holder, in the absence of any different agreement, is entitled to varied, 
 have the bill accepted as of the date of first presentment to the 
 drawee for acceptance. 54 & 55 Vic. c. 17, s. 3. 
 
 19. An acceptance is either (a) general, or (6) qualified : a General and 
 general acceptance assents without qualification to the order qualified ao- 
 of the drawer ; a qualified acceptance in express terms varies i^p*Act*». 19. 
 the effect of the bill as drawn : Varied. 
 
 2. In particular, an acceptance is qualified which is — Qualified 
 
 (a.) Conditional, that is to say, which makes payment by the acceptance, 
 acceptor dependent on the fulfilment of a condition therein 
 stated ; but an acceptance to pay at a particular specified place 
 is not conditional or qualified. 
 
 {b.) Partial, that is to say, an acceptance to pay part only of 
 the amount for which the bill is drawn ; * 
 

 IMAGE EVALUATION 
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 Photographic 
 
 Sciences 
 
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 23 WIST MAIN STRBET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 872-<503 
 
508 
 
 BILLS OF EXCHANGE. 
 
 /■i*^- 
 
 (c.) Qualified as to time ; 
 
 (d.) The acceptance of some one or more of the drawees, but 
 not of all. 
 
 Inchoate in- 
 atruments. 
 Imp. Act 
 B. 20. Vaned. 
 
 O 
 
 a. 
 c/. 
 
 I 
 
 70 
 
 When to V e 
 filled up. 
 
 As to subse- 
 quent holder 
 
 Contract not 
 complete until 
 delivery. 
 Imp. Act 8. 
 21. Excep- 
 tion. 
 
 Henuieitefl as 
 to delivery. 
 
 When valid 
 
 delivery 
 
 presumed. 
 
 Prima facie 
 evidence. 
 
 Capacity of 
 parties. 
 Imp. Acts. 
 33. As to 
 oorporations. 
 
 20. Where a simple signature on a blank paper is delivered 
 by the signer in order that it may be converted into a bill, it 
 operates as a prima facie authority to fill it up as a complete 
 bill for any amount, using the signature for that of the drawer, 
 or the acceptor, or an indorser ; and, in like manner, when a 
 bill is wanting in any mate»-ial particular, the person in posses- 
 sion of it has a prima facie authority to fill up the omission 
 in any way he thinks fit : 
 
 2. In order that any such instrument when completed may 
 be enforceable against any person who became a party thereto 
 prior to its completion, it must be filled up within a reasonable 
 time, and strictly in accordance with the authority given ; 
 reasonable time for this purpose is a question of fact : 
 
 Provided, that if any such instrument, after completion, is 
 negotiated to a holder in due course, it shall be valid and 
 effectual for all purposes in his hands, and he may enforce it 
 as if it had been filled up within a reasonable time and strictly 
 in accordance with the authority given. 
 
 31. Every contract on a bill, whether it is the drawer's, the 
 acceptors's or an indorser 's, is incomplete and revocable, nntil 
 delivery of the instrument in order to give effect thereto : 
 
 Provided, that where an acceptance is written on a bill, and 
 the drawee gives notice to, or according to the directions of, 
 the person entitled to the bill that he has accepted it, the accept- 
 ance then becomes complete and irrevocable : 
 
 2. As between immediate parties, and as regards a remote 
 party, other than a holder in due course, the delivery — 
 
 (a.) In order to be effectual must be made either by or under 
 the authority of the party drawing, accepting or indorsing, as 
 the case may be ; 
 
 (b.) May be shown to have been conditional or for a special 
 purpose only, and not for the purpose of transferring the pro- 
 perty in the bill ; 
 
 But if the bill is in the hands of a holder in due course, a 
 valid delivery of the bill by all parties prior to him, so as to 
 maite them liable to him, is conclusively presumed : 
 
 3. Where a bill is no longer in the possession of a party who 
 has signed it as drawer, acceptor or indorser, a valid and uncon- 
 ditional delivery by him is presumed until the contrary is 
 proved. 
 
 Capacity and Authority of Parties.. 
 
 22. Capacity to incur liability as a party to a bill is co-ox- 
 tensive with capacity to contract : 
 
BILLS OF EXCHANGE. 
 
 509 
 
 Provided, that nothing in this section shall enable a cor- 
 poration to make itself liable as drawer, acceptor or indorser 
 of a bill, unless it i.s competent to it so to do under the law for 
 the time being in force relating to such corporation : 
 
 2. Where a bill is drawn or indorsed by an infant, minor, or DrawinK or 
 corporation having no capacity or power to incur liability on p^rsornot ^ 
 a bill, the drawing or indorsement entitles the holder to receive compe^nt. 
 payment of the bill, and to enforce it against any other party 
 thereto. 
 
 
 ?^.> person is liable as drawer, indorser, or acceptor of Signature 
 a Kli V i'O -s no': signed it as such. Provided that — essential to 
 
 (a.) Wheio a pei =ion signs a bill in a trade or assumed name, Imp.Acts.23. 
 he is liable thereon >?.s if he had signed it in his own "-ame ; Exceptions. 
 
 (b.) The signature of the name of a firm is equivalent to the 
 signature by the person so signing of the names of all persons 
 liable as partners in that firm. 
 
 Forged or un- 
 authorized 
 signature. 
 
 Imp. Act 8, 24, 
 varied. 
 
 34. Subject to the provisions of this Act, where a signa- 
 ture on a bill is forged or placed thereon without the author- 
 ity of the person whose signature it purports to be, the forged 
 or unauthorized signature is wholly inoperative, and no right 
 to retain the bill or to give a discharge therefor or to enforce 
 payment thereof against any party thereto cun be acquired 
 through or under that signature, unless the party against 
 whom it is sought to retain or enforce payment of the bill is 
 precluded from setting up the forgery or want of authority ; 
 
 2. If a bill bearing a forged or unauthorized endorsement 
 is paid in good faith and in the ordinary course of business, by 
 or on behalf of the drawee or acceptor, the person by whom or 
 on whose behalf such payment is made shall have the right to 
 recover the amount so paid from the person to wliom it was so 
 paid or from any endorser wlio has endorsed the bill subse- 
 quently to the forged or unauthorized endorsement, provided 
 that notice of the endorsement being a forged or unauthorized 
 endorsement is given to each such subsequent endorser within 
 the time and in the manner hereinafter mentioned ; and any 
 such person or endorser from whom said amount has been 
 recovered shall have the like right of recovery against any 
 prior endorser subsequent to the forgedorunauthorized endorse- 
 ment. 
 
 3. The notice of the endorsement being a forged or unau- rj,^^^ {^^ ^^^ 
 thorized endoi'sement shall be given within a reasonable time mode of such 
 after the person seeking to i-ecover the amount has acquired no*"!e- 
 notice that the endorsement is forged or unauthorized, and may ^°* '" ^™p* 
 be given in the same manner, and if sent by post may be ad- 
 dressed in the same way, as notice of protest or dishonour of 
 
 a bill may be given or addressed under this Act. 60 and 61 
 Vic. c. 10. 
 
 Right of re- 
 covery by 
 person paying 
 bill bearing 
 forged or un- 
 authorized 
 endorsement. 
 Not in Imp. 
 Act. 
 
 Notice of 
 forgery, etc., a 
 condition of 
 such right. 
 
510 
 
 BILLS OF EXCHANGE. 
 
 Procuration 
 aignatures. 
 Imp. Act 
 ■.26. 
 
 25. A signature by procuration operates as notice that the 
 agent has but a limited authority to sign, and the principal is 
 bound by such signature only it" the agent in so signing was 
 acting within the actual limits of his authority. 
 
 Person Rigning '^6. Where a person signs a bill as drawer, indorser or 
 an agent or in acceptor, and adds words to his signature indicating that he 
 
 a 
 
 -Z 
 
 
 i 
 
 00 
 
 2 
 
 reprFseotative 
 capacity. 
 
 Imp. Act 
 B. 26. 
 
 Rule for de- 
 termination 
 of signature. 
 
 Valuable oon- 
 eiderntinn how 
 constituted. 
 
 Imp. Act 
 «. 27. 
 
 When holder 
 is holder for 
 value. 
 
 Ad to lien. 
 
 Accommoda- 
 tion party to 
 a bill. 
 
 Imp. Act 
 B. 28. 
 
 His liability. 
 
 ■ Holder in due 
 eouiae. 
 
 lB)p. Act 
 B. 29. 
 
 signs for or on behalf of a principal, or in a i-eprosentative 
 character, he is not personally liable thereon ; but the mere 
 addition to his signature of words describing him as an agent, 
 or as tilling a representative character, dees not exempt him 
 from personal liability ; 
 
 2. In determining whether a signature on a bill is that of 
 the principal or that of the agent by whose hand it is written, 
 the construction most favorable to the validity of the instru- 
 ment shall be adopted. 
 
 The Consideration for a Bill. 
 
 37. Valuable consideration for a bill may be constituted by — 
 
 (a) Any consideration suthcient to support a simple con- 
 tract ; 
 
 (b) An antecedent debt or liability ; such a debt or liability 
 is deemed valuable consideration, whether the bill is payable 
 on demand or at a future time ; 
 
 2. Where value has, at any time, been given for a bill, the 
 holder, is deemed to be a holder for value as legards the ac- 
 ceptor and all parties to the bill who became parties prior to 
 such time : 
 
 3, Where the holaer of a bill has a lien on it, arising either 
 from contract or by implication ot law, he is deemed to be a 
 holder for value to the extent of the sum for which he has a 
 lien. 
 
 S8. An accommodation party to a bill is a person wlio lias 
 signe(i a bill as drawer, acceptor or indorser, without receiving 
 value therefor, and for the purpose of lending his name to 
 some other [)erson : 
 
 2. An accommodation party is liable on the bill to a holder 
 for value ; and it is immaterial whether, when such holder 
 took the bill, he knew such party to be an accounnodation 
 party or not. 
 
 29 A holder in due course is a holder v;ho has taken a 
 bill, complete and regular on the face of it, under the follow- 
 ing conditions, niimely : — 
 
 (<i ) That he became the holder of it before it wis overdue 
 and wiihotit notice that it had been previou.sly dishonored, if 
 such was the fact ; 
 
BILLS OF EXCHANGE. 
 
 511 
 
 (h.) That he took the bill in good faith and for value, and 
 that at the time the bill was negjotiated to hiin he had no notice 
 of any defect in the title of the person who negotiated it ; 
 
 2. In particular, the title of a person who negotiates a bill is Title defective 
 defective within the meaning of this Act when he obtained '^ cases 
 
 the till, or the acceptance thereof, by fraud, duress or force "'^^ ^ ' 
 and fear, or other unlawful means, or for an illegal considera- 
 tion, or when he negotiates it in breach of faith, or under such 
 circumstances as amount to a fraud ; 
 
 3. A holder, whether for value or not, who derives his Right of sub- 
 title to a bill through a holder in due course, and who is not u'^'jT"* 
 himself a party to any friud or illegality affecting it, has all 
 
 the rit/hts of that holder in due course as regards the acceptor 
 and all parties to the bill prior to that holder. 
 
 30. Every party whose signature appears on a bill is Presumption 
 prima facie deemed to have become a party thereto for value : °oJd\aUh"^ 
 
 2. And every holder of a bill is prima facie deemed to be a t>n whom bur- 
 holder in due course: but if, in an action on a bill, it isi,eg.° ^^°° 
 atlmitted or proved that the acceptance, issue or subsequent imp. Acts. 30. 
 negotiation of the bill is affected with fraud, duress or force 
 
 and fear, or illegality, the burden of proof that he is such 
 holder in due course shall be on him, unless and until he proves 
 that, subsequent to the alleged fraud or illegality, value has in 
 good faith been given for the bill by some other holder in due 
 course: 
 
 3. No bill, although given for a usurious consideration or usuriouBoon- 
 upon a usurious contract, is void in the hands of a holder, sideration. 
 unless such lioMerhad at the time of its transfer to him actual ^gt_'°^""^' 
 knowledge that it was originally given for a usurious con- 
 sideratitm, or upon a usurious contract: 
 
 4. Every bill or note the considei-ation of which consists, in conBiderttion 
 whole or in part, of the purchase money of a patent right, or consisting of 
 of a parti d interest, limited geographically or otherwise, in a ^"'jj'ey o*f 
 patent riuht, .'^hali have written or printed prominently and patent right, 
 ieyibly across the face thereof, before the same is 
 words "given for a patent right:" and without such words 
 thereon such instrument and any renewal thereof shall be void, 
 
 except in the hands of a holder in due course without notice 
 of such consideration : 
 
 5. The indorsee or other transferee of any such instrument , .... , 
 having the words aforesaid so printed or written thereon, shall trannferee. 
 take the same subject to any defence or set-oH' in respect of N<'t in Imp. 
 the whole or any part thereof which would have existed 
 between tne original parties : 
 
 6. Every one who issues, sells or transfers, by indorsement pp^^ny 
 
 or delivery, any sucli in.strument not having the words "given Not in imp. 
 for a patent right" pj-inted or written in manner afoiesaid ^*"'' 
 across the face thereof, knowing the consideration of such in- 
 
 issued, the ^ot m Imp. 
 
512 
 
 BILLS OF EXCHANGE. 
 
 strument to have consisted, in whole or in part, of the purchase 
 money of a patent right, or of a partial interest, limited geo- 
 graphically or otherwise, in a patent right, is guilty of a mis- 
 demeanor, and liable to imprisonment for any term not ex- 
 ceeding one year, or to such line, not exceeding two hundred 
 dollars, as the court thinks fit. 
 
 Negotiation of Bills. 
 
 Negotiation of 31. A bill is negotiated when it is transferred from one 
 bills. person to another in such a manner as to constitute the trans- 
 
 Imp. Act8.3L ^^^^^ ^j^g holder of the bill : 
 
 To bearer. 
 To order. 
 
 Without in- 
 dorsement. 
 
 I 
 
 Pergonal lia- 
 bility may be 
 avoided. 
 
 Reqaigites of 
 a valid in- 
 dorsemeDt. 
 Imp. Act 8. 32. 
 
 Misspelling. 
 
 Order of in- 
 dorsement. 
 
 2. A bill payable to beai'er is negotiated by delivery: 
 
 3. A bill payable to order is negotiated by the indorsement 
 of the holder completed by delivery : 
 
 4. Where the holder of a bill payable to his order transfers 
 it for value without indorsing it, the transfer gives the ti-ans- 
 feree such title as the transferrer had in the bill, and the 
 traiisferee in addition acquires the right to have the indorse- 
 ment of the transferrer : 
 
 5. Where any person is under obligation to indorse a bill in 
 a representative capacity, he may indorse the bill in such 
 terms as to negative personal liability. 
 
 33. An indorsement in order to operate as a negotiation 
 must comply with the following conditions, namely : — 
 
 (a.) It must be written on the bill itself and be signed by 
 the indorser. The simple signature of the indorser on the bill, 
 without additional words is sufficient ; 
 
 An indorsement written on an allonge, or on a " copy " of a 
 bill issued or negotiated in a country where " copies " are 
 recognized, is deemed to be written on the bill itself; 
 
 (b.) It must be an indorsement of the entire bill. A partial 
 indorsement, that is to say, an indorsement which purports to 
 transfer to the indorsee a part only of the amount payable, or 
 which purports to transfer the bill to two or more indorsees 
 severally, does not operate as a negotiation of the bill ; 
 
 (c.) Where a bill is payable to the order of two or more 
 payees or indorsees who are not partners, all must indorse, 
 unless the one indorsing has authority to indorse for the 
 others : 
 
 2. Where, in a bill payable to order, the payee or indorsee 
 is wrongly designated, or his name is misspelt, he may indorse 
 the bill as therein described, adding his proper signature ; or 
 he may indorse by his own proper signature : 
 
 3. Where there are two or more indorsements on a bill, each 
 indorsement is deemed to have been made in the order in 
 which it appears on the bill, until the contrary is proved : 
 
BILLS OF EXCHANGE. 
 
 513 
 
 4. All indorsement may be made in blank or special, 
 may also contain terms making it restrictive. 
 
 It Special in- 
 dorsement. 
 
 lili. Where a bill purports to be indoi-sed conditionally, the Conditional 
 condition may bo disregarded by the payer, and payment to iJ^'J^aT^ss 
 tlie indoi'.>ee is valid, whether the condition has been fulfilled 
 or not. 
 
 34. An indorsement in blank specifies no indorsee, and a Indorsement 
 bill so indorsed becomes payable to bearer: imp'^Aots 34 
 
 2. A special indorsement specifies the person to whom, or Special in- 
 to whose order, the bill is to be payable : dorsement. 
 
 3. The provisions of this Act relating to a payee apply, with Application 
 the necessary modifications, co an indorsee under a special in- do^^*^"'"' 
 dorsement : 
 
 ^. Where a bill has been indorsed in blank, any hc>lder may Conversion of 
 convert the blank indorsement into a special indorsement by ^^^^ indorse- 
 writing above the indorser's signature a direction to pay the 
 bill to or to the order of himself or some other person. 
 
 35. An indorsement is restrictive which prohibits the fur- Restrictive 
 ther negotiation of the bill, or which expresses that it is a mere i^np"AS.T35 
 authority to deal with the bill ns thereby directed, and not a 
 transfer of the ownership thei'eof, as, for example, if a bill is 
 indorsed " Pay D only," or " Pay D for the account of X," or 
 " Pay D, or order, for collection : " 
 
 2. A restrictive indor.sement gives the indorsee the right to Right of in- 
 receive payment of the bill and to sue any party theroto that dorsee there- 
 his indorser could have sued, but gives him no power to transfer 
 his rights as indorsee unless it expressly authorizes him to do so; 
 
 8 Where a restrictive indor.sement authorizes further trans- ]( further 
 fer, all subsequent indorsees take the bill with the same riglits transfer in 
 and subject to tlie same liabilities as the first indorsee under authorized, 
 the restrictive indorsement. 
 
 each 
 
 30. Where a bill is negotiable in its origin, it continues to when nego- 
 
 be neijotiable until it has been (a) restrictively indorsed, or (b) ^'^^le bills 
 Ti^ii , i.1' cease to be 80. 
 
 di.scharged by payment or otherwise ; j^ j^ ^ ^„ 
 
 2. Where an overdue bill is negotiated, it can be negotiati^d Negotiation 
 only subject to any defect of title affecting it at its maturity, of overdue 
 and thenceforward no person who takes it can require or give 
 
 a better title than that which had the person from whom he 
 took it : 
 
 3. A IwU payable on demand is deemed to be overdue within When bill 
 the meaning and for the purposes of this section, when it ap- deemed over 
 pears on the face of it to have been in circulation for an un- 
 veasonable length of time ; what is an unreasonable length of 
 
 time for this pui 'Ose is a question of foct : 
 H. 1 ' . 
 
514 
 
 HILLS OF EXCHAN(iE. 
 
 Presumption 4. Except where an indorsement bears date after the 
 
 t'on" °*'^°'"*' maturity of the bill, every negotiation is prima facie deemed 
 
 to have been effected before the bill was overdue : 
 
 5. Where a bill which is not overdue has been dishonored, 
 any person who takes it with notice of the dishonor takes it 
 subject to any defect of title attaching thereto at the time of 
 dishonor ; but iiothing in this sub-section shall affect the rights 
 of a holder in due course. 
 
 Taking bill 
 subsequent to 
 dishonor. 
 
 o 
 
 
 03 
 30 
 
 Negotiation of 37. Where a bill is negotiated back to the drawer, or to a 
 already HaWe pJ"ior indorser, or to the acceptor, such party may, subject to 
 thereon. the provisions of this Act, re-issue and further negotiate the 
 
 bill, but he is not entitled to enforce the payment of the bill 
 P" ■ against any intervening party to whom he was previously 
 
 liable. 
 
 Rights of the 
 holder. 
 
 Imp. Act B. 38 
 
 When pre- 
 sentment for 
 acceptance is 
 necessary. 
 
 Imp. Act s. 39 
 
 Express stipu- 
 lation as to 
 presentment. 
 
 No present- 
 ment in any 
 other case. 
 
 Necessary de- 
 lay for pre' 
 sentment. 
 
 The rights 
 
 and powers of the holder of a bill are as 
 
 38. 
 
 follows : — 
 
 (a) He may sue on the bill in his own name ; 
 
 (fc) Where he is a holder in due course, he holds the bill 
 free from any defect of title of prior parties, as well as from 
 mere personal defences available to prior parties among them- 
 selves, and may enforce payment afi;ainst all parties liable on 
 the bill ; 
 
 (c) Where his title is defective, (1) if he negotiates the bill 
 to a holder in due course, that holder obtains a good and com- 
 plete title to the bill, and (2) if he obtains payment of the bill 
 the person who pays him in due course gets a valid discharge 
 for the bill. 
 
 General Duties 0/ the Holder. 
 
 39. Where a bill is payable at sight or after sight, present- 
 ment for acceptance is necessary in order to fix the matuiity of 
 the instrument : 
 
 2. Where a bill expressly stipulates that it shall be pre- 
 sented for acceptance, or where a bill is drawn payable else- 
 where than at the residence or place of business of the drawee, 
 it must be presented for acceptance before it can be presented 
 for payment : 
 
 3. In no other case is presentment for acceptance necessary 
 in order to render liable any party to the bill : 
 
 4. Where the holder of a bill, drawn payalile elsewhere 
 than at the place of business or residence of the drawee, 
 has not time, with the exercise of reasonable diligence, to pre- 
 sent the bill for acceptance before presenting it for payment 
 on the day that it falls due, the delay caused by presentmg the 
 bill for acceptance before presenting it for payuient is excused, 
 and does not discharge the drawer and indorsers. 
 
BILLS OF EXCHANGE. 
 
 fil5 
 
 40. Subject to the provisions of this Act, when a bill pay- Time for pre- 
 able at sijiht or after sight is negotiated, the holder 'nust p®"'^^}^ ^{j^^ 
 either present it for acceptance or negotiate it within a reason- BiRht. 
 
 able time : Imp- Act b. 40 
 
 2. If he does not do so, the drawer and all indorsers priorto n „ot preaen- 
 that h(jlder are discharfjed : ted. 
 
 3. In determining what is a reasonable time within the As to reason- 
 meaning of this section, regard shall be had to the nature of " * ""^' 
 the bill, the iiauage of trade with respect to similar bills, and the 
 
 facts of the particular case. 54, 55 Vic. c. 17, s. 5. 
 
 41. A bill is duly presented for acceptance which is pre- KuIr" »» to 
 sented in accordance with the following rules : L'r »™ept-°' 
 
 a) The presentment must be made by or on behalf of the *"*^^- 
 holder to the drawee or to some person authorized to accept J^'^.P-^^"**' '*^ 
 or refuse acceptance on his unhalf, at a reasonable hour on a 
 business day and before the bill is overdue ; 
 
 (b) Where a bill is addressed to two or more drawees, who 
 are not partners, presentment must be made to them all, unless 
 one has authority to accept for all, when presentment may be 
 made to him only ; 
 
 (o) Where the drawee is dead, presentment may be made 
 to his personal representative ; 
 
 (d) Where authorized by agreement or usage, a presentment Kxouses for 
 through the post office is sufficient : ment!'***° 
 
 2. Presentment in accordance with these rules is excused, 
 and a bill may be treated as dishonored by non-acceptance — 
 
 (a) Where the drawee is dead, or is a fictitious person or a 
 person not having capacity to contract by bill ; 
 
 (6) Where, after the exercise of reasonable diligence, such 
 presentment cannot be effected ; 
 
 (c) Where, although the presentment has been irregular, 
 acceptance has been refused on some other ground : 
 
 3. The fact that the holder has rea.son to believe that the whsa there is 
 bill, on presentment, will be dishonored does not excuse pre- ""o «""*«• 
 sentment. 54 & 5.5 Vic. c. 17, s. 6. 
 
 43. When a bill is duly presented for acceptance and is not Non-aocept- 
 accepted on the day of presentment or within two days there- *°"'®" 
 after, the penson presenting it must treat it as dishonored by Imp Act 
 non-acceptance ; if he does not, the holder shall lose his right ^- *^' '*''«<!• 
 of recourse against the drawer a. " indorsers. 
 
 43. A bill is dishonored by non-acceptance — Dishonor by 
 
 (a) When it is duly presented for acceptance, and such an ancH*and''itB 
 acceptance as is prescribed by this Act is refused or cannot be consequences 
 obtained ; or— ln,p. Act 
 
 (h) When presentment for acceptance is excused and the bill *' *^' 
 is not accepted ; 
 
516 
 
 BILLS OF KXCHANQE. 
 
 a 
 
 < 
 
 X 
 
 Imp. Act 
 B. 44. 
 
 Recourse in 2. Subject to the provisions of thJH Act, when a bill is dis- 
 
 Buchoase. honored by non-acceptance an immediate right of recourse 
 
 against the drawer and indorsers accrues to the holder, and 
 
 no presentment for payment i.s necessary. 
 
 Ab to qualified 4-4. The holder of a bill may refuse to take a qualified 
 aoceptances. a^.^eptance, and if he does not obtain an unqualified accept- 
 ance may treat the bill as dishonored by non-acceptance : 
 
 If taken .vith- 2. Where a qualified acceptance is taken, and the drawer 
 
 out authority, qj. ^u indorser has not expressly or impliedly authorized the 
 
 holder to take a qualified acceptance, or does not subsequently 
 
 assent thereto, such drawer or indorser is discharged from his 
 
 liability on the bill ; 
 
 Partial accept- The provisions of this sub-section do not apply to a partial 
 *■"'*• acceptance, whereof due notice has been given ; where a 
 
 foreign bill has been accepted as to part, it must be protested 
 
 as to the balance : 
 
 What shall be ^- When the drawer or indorser of a bill receives notice of 
 deemed as- a qualified acceptance, and does not within a reasonable time 
 ** express his dissent to the holder, he shall be deemed to have 
 
 assented thereto. 
 
 00 
 
 Presentment 45. Subject to the provisions of this Act, a bill must be 
 or paymen . (jyjy pi>esented for payment ; if it is not so presented, the 
 s.™45. ° drawer and indorsers shall be discharged : 
 
 Rules as to 2. A bill is duly presented for payment which is presented 
 
 presentment. -^ accordance with the following rules :— 
 
 (a) Whei'e the bill is not payable on demand, presentment 
 must be made on the day it falls due ; 
 
 (6) Where the bill is payable on demand, then, .subject to 
 the provisions of this Act, presentment must be made within 
 a reasonable time after its issue, in order to render the drawer 
 liable, and within a reasonable time after its indoisement, in 
 order to render the indorser liable ; 
 
 In determining what is a reasonable time, regard shall be 
 had to the nature of the bill, the usage of trade with regard 
 to similar bills, and the facts of the particular case ; 
 
 (c) Presentment must be made by the holder or by some 
 person authorized to receive payment on his behalf, at the 
 proper place, as hereinafter defined, either to the person desig- 
 nated by the bill as payer or to his representative or some per- 
 son authorized to pay or refuse payment on his behalf, if, with 
 the exercise of reaaunable diligence, such person can there be 
 found ; 
 
 (d) A bill is presented at the proper place — 
 
 (1) Where a place of payment is specified in the bill or 
 acceptance, and the bill is there presented ; 
 
BILLS OF EXCHANGE. 
 
 517 
 
 (2) Where no place of payment is specified, but the address 
 of the drawee or acceptor is given in the bill, and the bill is 
 there presented ; 
 
 (3) Where no place of payment is specified and no address 
 given, and the bill is presented at the drawee's or acceptor's 
 
 Slace of business, if known, and if not, at his ordinary resi- 
 ence, if known ; 
 
 (4) In any other ease, if presented to the drawee or acceptor 
 wherever he can be found, or if presented at his last known 
 place of business or residence : 
 
 3. Where a bill is presented at the proper place, and, after 
 the exercise of reasonable diligence, no person authorized to 
 pay or refuse payment can be found there, no further present- 
 ment to the drawee or acceptor is required : 
 
 4. Where a bill is drawn upon, or accepted by two or more 
 persons who arc not partners, and no place of payment is 
 specified, presentment must be made to them all : 
 
 5. Where the drawee or acceptor of a bill is dead, and no 
 place of payment is specified, presentment must be made to a 
 personal representative, if such there is, and with the exercise 
 ot reasonable diligence he can be found : 
 
 6. Where authorized by agreement or usage, a presentment 
 through the post oflBce is sufficient : 
 
 7. Where the place of payment specified in the bill or ac- Not in Imp. 
 ceptance is any city, town or village, and r o place therein is Act. 
 specified, and the bill is presented at the drawee's or acceptor's 
 
 known place of business or known ordinary residence therein, 
 and, if there is no such place of business or residence the bill is 
 presented at the post office, or principal post office in such city, 
 town or village, such presentment is sufficient. 
 
 46. Delay in making presentment for payment is excused 
 when the delay is caused by cii-cumstances beyond the control 
 of the holder, and not imputable to his default, misconduct or 
 negligence ; when the cause of delay ceases to operate, pre- 
 sentment must be made with reasonable diligence : 
 
 2. Presentment for payment is dispensed with — 
 
 (a) W^here, after the exercise of reasonable diligence, pre- 
 sentment, as required by this Act, cannot be efi'ected ; 
 
 The fact that the holder has reason to believe that the bill 
 will, on presentment, be dishonored, does not dispense with 
 the necessity for presentment ; 
 
 (6) Where the drawee is a fictitious person ; 
 
 (c) As regards the drawer, where the drawee or acceptor is 
 not Ijound, as between himself and the drawer, to accept or 
 pay the bill, and the drawer has no reason to believe that the 
 oill would be paid if presented ; 
 
 Excuse for 
 delay in pre- 
 sentment for 
 payment. 
 
 Imp. Act 
 B. 46. 
 
 When such 
 presentment 
 IS dispensed 
 with. 
 
518 
 
 BILLS OF EXCIIANOE. 
 
 « 
 
 n: 
 
 {(l) As regards an endorser, were the bill was accepted or 
 made for the accommodatioTi of that indorser, and he has no 
 reason to expect that the bill would be paid if presented ; 
 
 (c) By waiver of presentment, express or implied. 
 
 nonpayment. 41. A bill is dishonored by non-payment (a) when it is 
 Imp. Act 8. 47. duly presented for payment and payi lent is refused or cannot 
 
 be obtained, or (/>) when presentment is excused and the bill 
 
 is overdue and unpaid : 
 
 2. Subject to the previsions of this Act, when a bill is dis- 
 honored by non-payment, an immediate right of recourse 
 against the drawer, acceptor and indorsers accrues to the 
 holder. 
 
 Reconrae in 
 such case. 
 
 Notice of dis- 48. Subject to the provisions of this Act, when a bill has 
 effect ""non- b*^^" dishonored by non-acceptance or by non-payment, notice 
 notice. of dishonor must be given to the drawer and each indorser, 
 
 Imp.Aobs. 48. g^j^^] j^j^y drawer or endorser to whom such notice is not given 
 is discharged ; Provided that — 
 
 (a) Where a bill is dishonored by non-acceptance, and notice 
 of dishonor is not given, the rights of a holder in due course 
 subsequent to the omission shall not be prejudiced by the 
 omission ; 
 
 (/>) Where a bill is dishonored by non-acceptance and due 
 notice of dishonor is given, it shall not be necessary to give 
 notice of a subsequent dishonor by non-payment, unless the 
 bill shall in the meantime have been accepted. 
 
 Rules as to 49. Notice of dishonor, in order to be valid and ettectual, 
 
 notice of must be given in accordance with the following rules : — 
 
 dishonor. '^ " 
 
 Imp. Act 8. 49, (^(j) "pj^g notice must be given by or on behalf of the holder, 
 or by or <m behalf of an indorser who, at the time of giving it, 
 is himself liable on the b.U ; 
 
 (&) Notice of dishonor may be given by an agent either in 
 his own name, or in the name of any party entitled to give 
 notice, whether that party is his principal or not ; 
 
 (c) Where the notice is given by or on behalf of the holder, 
 it enures for the benefit of all subsequent holders and all prior 
 indorsers who have a right of recourse against the party to 
 whom it is given ; 
 
 fd) Where notice is given by or on behalf of an indorser 
 enti ^ to give notice as hereinbefore provided, it enures for 
 the ■ afit of the holder and all endorsers subsequent to the 
 party io whom notice is given ; 
 
 (e) The notice may be given in writing or by personal 
 communication, and may be given in any terms which suffi- 
 ciently identify the bill and intimate that the bill has been 
 dishonored by non-acceptance or non-payment ; 
 
BILLS OF EXCHANGE. 
 
 619 
 
 (/) The return of a (li.shonored bill to tlie drawer or an 
 indorser is, in point of form, deemed a sufficient notice of dis- 
 honor ; 
 
 (()) A written notice need not be signed, and an insufficient 
 written notice may be supplemented and validated by vc^rbal 
 communication ; a misdescription of the bill sliall not vitiate 
 the notice, unless the party to whom the notice is given is in 
 fact misled thereby ; 
 
 (/i) Where notice of dishonor is re(|uired to be given to any 
 person, it may be given either to the party himself, or to his 
 agent in that beiialf ; 
 
 ()■) Where the drawer or indoraer is dead, and the party 
 giving notice knows it, the notice must be given to a personal 
 representative, if such there is and, with the exercise of 
 reasonable diligence, he can be found ; 
 
 ( /') Where there are two or more drawers or indorsers who 
 are not partners, notice must be given to each of them unless 
 one of them has authority to receive such notice for the 
 others ; 
 
 (/o) The notice may be given as soon as the bill is dis- 
 honored, [and must be given not later than the next following 
 juridical or business day.] 
 
 2. Where a bill, when dishonored, is in the hands of an If dishonored 
 agent, he may either himself give notice to the parties liable hands «f an 
 on the bill, or he may give notice to his principal ; if he gives agent, 
 notice to his principal, he must do so within the same time as 
 
 if he were the holder, and the principal, upon receipt of such 
 notice, has himself the same time for giving notice as if the 
 agent had been an independent holder : 
 
 3. Where a party to a bill receives due notice of dishonor. Notice to 
 he has, after the receipt of such notice, the same period of time parties, 
 for giving notice to antecedent parties that the holder has 
 
 after the di.shonor: 
 
 4. Notice of the protest or dishonor of any bill payable in When notice 
 Canada shall, notwitstandiug anything in this section con- **"*'' ^ given, 
 tained, be sufficiently given if it is addressed in due time to 
 
 any party to such bill entitled to such notice, at his customaiy 
 address or place of residence or at the place at which such bill 
 is dated, unless any such party has, under his signature, desig- 
 nated another place ; and in such latter case such notice shall 
 be sufficiently given if addressed to him in due time at such 
 other place ; and such notice so addressed shall be sufficient, 
 although the place of residence of such party is other tha" 
 either of such above mentioned places ; and such notice .shall 
 be deemed to have been duly served and given for all pur- 
 poses if it is deposited in any post office, with the postage paid 
 thereon, at any time during the day on which such protest or 
 presentment has been made, or on the next following juridical 
 or business day ; such notice shall not be invalid by reason of 
 the fact that the party to whom it is addressed is dead : 
 
520 
 
 BILLS OF EXCHANGE. 
 
 O 
 30 
 
 c 
 
 MiwianiBgein 5 Where a notice of dishonor is duly addressed and 
 posted, as above provided, the sender is deemed to have given 
 due notice of dislionor, notwithstanding any miscarriage by the 
 post office. 
 
 Excuses for 
 non-notice 
 and delay. 
 Imp, Act, 
 s. 60. 
 
 When notice 
 is dispensed 
 with. 
 
 Notinfir or pro- 
 test of bill. 
 Imp. Act, 
 8. 51, varied. 
 
 Protest of 
 foreign bill. 
 
 50. Delay in giving notice of dishonor is excused where 
 the delay is caused by circumstances beyond ihe control of the 
 party giving notice, and not imputable to his default, miscon- 
 duct, or negligence : when the cause of delay cea.ses to operate 
 the notice must be given with reasonable diligence, 
 
 2. Notice of dishonor is di.spensed with — 
 
 (a.) When, after the exercise of reasonable diligence, notice 
 as required by this Act cannot be given to or does not reach 
 the drawer or indorser sought to be charged ; 
 
 (b.) By waiver express or implied : notice of dishonor may 
 be waived before the time of giving notice has arrived, or 
 after the omission to give due notice ; 
 
 (c.) Ap regards the drawer, in the following cases, namely, 
 (1) where drawer and draweo are the same person, (2) 
 where the drawee is a fictitious person or a person not having 
 capacity to contract, (3) where the drawer is ths person to 
 whom the bill is presented for payment, (4) wLare the drawee 
 or acceptor is, as between himself and the drawer, under no 
 obligation to accept or pay the bill, (5) where the drawer has 
 coutermanded payment ; 
 
 (d.) As regards the indorser, in the following cases, namely 
 (1) where the drawee is a fictitious person or a person not 
 having capacity to contract, and the indorser was aware of the 
 fact at the time he indorsed tlie bill, (2) where the indorser is 
 the person to whom the bill is presented for payment, (3) 
 whex'e the bill was accepted or made for his acconmiodation. 
 
 51. Where an inland bill has been dishonored it may, if 
 the holder thinks fit, be noted and protested for non-acceptance 
 or non-payment, as the case may be ; but, subject to the provi- 
 sion.s of this Act with respect to notice of dishonor, it shall 
 not, except in the Province of Quebec, be necessary to note or 
 protest any such bill in order to preserve the recourse against 
 the drawer or indorser ; but in the case of a bill drawn upon 
 any person in the Provir je of Quebec, or payable or accepted 
 at any place therein, in default of protest for non-acceptaTice 
 or non-payment, as the case may be, and of notice thereof, 
 the parties liable on the bill other than the acceptor are dis- 
 charged, subject, nevertheless, to the exceptions in this section 
 hereinafter contained : 
 
 2. Where a foreign bill, appear: ag on the face of it to be 
 such, has been dishonored by non-acceptance, it must be duly 
 protested for non-acceptance, and where such a bill, which has 
 not been previously dishonored by non-acceptance, is dis- 
 
BILLS OF EXCHANGE. 
 
 521 
 
 honored by non-payment, it must be duly protested for non- 
 payment. If it is not so protested, the drawer and indorsers 
 are discharged. Where a bill dues not appear on the face of 
 it to be a foreign bill, protest thereof in case of dishonor, 
 except as in this section provided, is unnecessary : 
 
 '}. A bill which has been protested for non-acceptance, or a Subsequent 
 bill of which protest for non-acceptance has been waived, may P'^'^^*- 
 be subsequently protested for non-payment : 
 
 •i. Subject to the provisions of this Act, wh^ a bill is pro- Time for 
 tt.3ted the protest must be made or noted en the day of its dis- noting, 
 honor. When a bill has been duly noted, the protest may be 
 subsequently extented as of the date of the noting : 
 
 5. Where the acceptor of a bill suspends payment before it if acceptor is 
 matures, the holder may cause the bill to be protested for «n«olveni. 
 better security against the drawer ind indorsers : 
 
 6. A bill must be protested at the place where it is dis- Where bill 
 honored, [or at some other place in Canada situate within Hve ^"^^^ ^™" 
 miles of the place of presentment and dishonor of such bill :] [Not in Imp. 
 Provided that— ^"'•^ 
 
 (a.) When a bill is presented through the post office, and ff^jV" ^"P" 
 returned by post dishonored, it inay be protested at the place 
 to which it is returned, [not later thim on the day of its return 
 or the next juridical day ;] 
 
 (b.) Every protest for dishonor, either for non-acceptance or Not in Imp, 
 non-payment, may be made on the day of such dishonor at any °'' 
 time after non-acceptance, or in case of non-payment, at any 
 tune after three o'clock in the afternoon : 
 
 7. A protest must contain a copy of the bill, or the original W**,^* P'"**** 
 bill may be annext thereto, and the protest must be signed "**"*"■• 
 by the notary making it, and must specify — 
 
 (a.) The person at whose request the bill is protested ; 
 
 (h.) The place and date of protest, the cause or reason for 
 protesting the bill, the demand made, and the answer given, 
 i f any, or the fact that the drawee or acceptor could not be 
 found • 
 
 8. Where a bill is lost or destroyed, or is wrongly [or acci- If bill is lost, 
 dentally] detained from the person entitled to hold it, [or is ac- [Not in Imp. 
 cidentally retained in a place other than where payable,] protest Act.] 
 may be made on a copy or written particulars thereof : 
 
 9. Protest is dispensed with by any circumstances which Excuses for 
 would dispense with notice of dishonor. Delay in noting or non-protest 
 protesting is excused when the delay is caused by circum- 
 stances beyond the control of the holder, and not imputable to 
 
 his defiult, misconduct or negligence. When the cause of 
 delay ceases to operate, the bill must be noted or protested 
 with reasonable diligence. 
 
 i 
 
 J 
 
 f 
 
 'i 
 
 ? 
 
 i 
 1 
 
 * 
 
 I^^E^^^HIL 
 
 1 
 
 ' 
 
^mm 
 
 522 
 
 BILLS OF EXCHANGE. 
 
 Officer of bank 10. No clerk, teller or agent of any bank shall act as a 
 notary*"' *" notarj' in tiie protesting of any bill or note payable at the bank 
 Not in Imp. oi' at any of the branches of the bank in which he is employed. 
 A«*- 54 & 55 Vic. c. 17, s. 7. 
 
 Liability of 53. [When no place of payment is specified in the bill or 
 
 preBBntment*" acceptance,] presentment for payment is not necessary in order 
 Imp. Act, to render the acceptor liable : 
 
 a. 52, varied, 
 
 2. When a place of payment is specified in the bill or ac- 
 ceptance, the acceptor, in the absence of an express stipulation 
 to that effect, is not discharged by the omission to present the 
 bill for payment on the day that it matures, but if any suit or 
 action be instituted thereon before presentation the costs thereof 
 shall be in the discretion of the court : 
 
 3. In order to render the acceptor of a bill liable, it is not 
 necessary to protest it, or that notice of dishonor should be 
 given to him : 
 
 4. Where the holder of a bill presents it for payment, he 
 shall exhibit the bill to the person from whom he demands 
 payment, and when a bill is paid the holder shall forthwith 
 deliver it up to the party paying it. 
 
 No protest or 
 notice neces- 
 sary. 
 
 Presentment 
 f jr payment. 
 
 E 
 
 r 
 
 35 
 
 > 
 
 m 
 
 W 
 
 Liabilities of Parties. 
 
 Fund» in 53. A bill, of itself, does not operate as an assignment of 
 
 drawer! funds in the hands of the drawee available for the payment 
 
 Imp, Act B. 53 thereof, and the drawee of a bill who does not accept as required 
 by this Act is not liable on the instrument. 
 
 varied . 
 
 Liability of 
 acceptor. 
 Imp ActH. 64. 
 
 54. The acceptor of a bill, by accepting it — 
 
 (a.) Engages that he .vill pay it according to the tenor of 
 his acceptance ; 
 
 (b.) Is precluded from denying to a holder in due course — 
 (1.) The existence of the drawer, the genuineness of his sig- 
 nature, and his capacity and authority to draw the bill ; 
 
 (2.) In the case of a bill payable to drawer's order, the then 
 capacity of the drawer to indorse, but not the genuineness or 
 validity of his indorsement ; 
 
 (3.) In the case of a bill payable to the order of a third 
 person, the existence of the payee and his then capacity to 
 indorse, but not the genuineness or validity of his indorsement. 
 
 Liability of 55. The drawer of a bill, by drawing it — 
 
 d rft wcr • 
 
 Imp. Acts, 55. (a) Engages that on due presentation it shall be accepted 
 and paid according to its tenor, and that if it is dishonored he 
 will compensate the holder or any indorser who is compelled 
 to pay it, provided that the requisite proceedings on dishonor 
 are duly taken ; 
 
BILLS OF EXCHANGE. 
 
 523 
 
 Liability of 
 indaraer. 
 
 (b.) Is precluded from denying to a holder in due course 
 the existence of the payee and his then capacity to indorse ; 
 
 (2.) The indorser of a bill, by indorsing it — 
 
 (a.) Engages that on due presentment it shall be accepted 
 and paid according to its tenor, and that if it is dishonored he 
 will compensate the holder or a subsequent indorser who is 
 compelled to pay it, provided that the requisite proceedings on 
 dishonor are duly taken; 
 
 (b.) Is precluded from denying to a holder in due course the 
 genuineness and regularity in all respects of the drawer's sig- 
 nature and all previous indorsements ; 
 
 (c.) Is precluded from denying to his immediate or a subse- 
 quent indorsee that the bill was, at the time of his indorse- 
 ment, a valid and subsisting bill, and that he had then a good 
 title thereto. 
 
 56. Where a person signs a bill otherwise than as a drawer strauRpr aifcn- 
 or acceptor, he thereby incurs the liabilities of an indorser to ingbill, liable 
 a holder in due course, [and is subject to all the provisions of f^p Act a. 66 
 this Act respectin;^, iindorscs.] 
 
 varied. 
 
 57. Where a bill is dishonored, the measure of damages Measure of 
 which shall be deemed to be liquidated damages, shall be as a*^'f^* „♦• 
 
 follows : — to dishonored 
 
 (a.) The holder may recover from any party liable on the imp. Act a. 67 
 bill, tht drawer who has been compelled to pay the bill may varied, 
 recover from the acceptor, and an indorser who has been com- 
 pelled to pay the bill may recover from the acceptor or from 
 the drawer, or from a prior indorser — 
 
 (1.) The amount of the bill; 
 
 (2.) Interest thereon from the time of presentment for pay- 
 ment, if the bill is payable on demand, and from the maturity 
 of the bill in any other case ; 
 
 (3.) The expenses of noting [and protest ;] 
 
 (h.) In the case of a bill which has been dishonored abroad, 
 in [addition to] the above damages, the holder may recover 
 from the drawer or any indorser, and the drawer or an indorser 
 who has been compelled to pay the bill may recover from any 
 party liable to him, the amount of the re-cxchange with interest 
 thereon until the time of payment. 
 
 58. Where the holder of a bill payable to bearer negotiates Transferrer 
 it by delivery without indorsing it, he is called a "transferrer by delivery, 
 by delivery;" lmp.Act8.c 
 
 2. A transferrer by delivery is not liable on the instrument: Liability. 
 
 3. A transferrer by delivery who negotiates a bill thereby Warranty, 
 warrants to his immediate transferee, being a holder for value, 
 
 that the bill is what it purports to be, that he has a right to 
 transfer it, and that at the time of transfer he is not aware of 
 any fact which renders it valueless. 
 
w 
 
 524 
 
 Discharfi^e by 
 payment. 
 Imp. Ace B. 69. 
 
 Payment in 
 due oouree. 
 
 Payment by 
 drawer or 
 indoraer; its 
 effect. 
 
 > Accommoda- 
 tion bill. 
 
 Acceptor the 
 bolder at 
 
 maturity. 
 Imp. Act, 
 
 flBtt s. 61. 
 
 ^^H 'i Express 
 
 ^HH| waiver. 
 ^I^l Imp. Act, 
 
 ^^Hj The tame. 
 
 ^^^H Cancellation 
 ^^D of bill. 
 ^^^B Imp. Act, 
 
 ^^^B < Of any siffna- 
 
 Erroneous 
 cancellation. 
 
 BILLS OF EXCHANGE. 
 
 Discharge of Bill. 
 
 59. A bill is discharged by payment in due course by or on 
 behalf of the drawee or acceptor : 
 
 "Payment in due course" means payment made at or at'>er 
 the maturity of the bill to the liolder thereof in good faith and 
 without notice that his title to the bill is defective ; 
 
 2. Subject to the provisions hereinafter contained, when a 
 bill is paid by the drawer or an endorser, it is not discharged; 
 but— 
 
 (a.) Where a bill payable to, or to the order of, a third party 
 is paid by the drawer, the drawer may enforce payment thereof 
 against the acceptor, but may not re-issue the bill ; 
 
 (b.) Where a bill is paid by an endorser, or where a bill 
 payable to drawer's order is paid by the drawer, the party paying 
 it is remitted to his former rights as regards the acceptor or 
 antecedent parties, and he may, if he thinks fit, strike out his 
 own and subsequent indorsements, and again negotiate the bill; 
 
 3. Where an accommodation bill is paid in due course by 
 the party accommodated, the bill is discharged. 
 
 60. When the acceptor of a bill is or becomes the holder of 
 it at or after its maturity, in his own right, the bill is dis- 
 charged. 
 
 61. When the holder of a bill at or after its maturity 
 absolutely and unconditionally renounces his rights against 
 the acceptor, the bill is discharged : the renunciation must be 
 in writing, unless the bill is delivered up to the acceptor : 
 
 2. The liabilities of any party to a bill may in like manner 
 be renounced by the holder before, at or after its maturity ; 
 but nothing in this section shall affect the rights of a holder 
 in due course without notice of renunciation. 
 
 63. Where a bill is intentionally cancelled by the holder 
 or his agent, and the cancellation is apparent thereon, the bill 
 is dis jharged : 
 
 2. In like manner, any party liable on a bill may be dis- 
 charged by the intentional cancellation of his signature by the 
 holder or his agent. In such case, any indorser who would 
 have had a right of recourse against the party whose signature 
 is cancelled is also discharged : 
 
 3. A cancellation made unintentionally, or under a mistake, 
 or without the authority of the holder, is inoperative ; but 
 where a bill or any signature thereon appears to have been 
 cancelled, the burden of proof lies on the party who alleges 
 that the cancellation was made unintentionally, or under a 
 mistake, or without authority. 
 
BILLS OF EXCHANGE. 
 
 5Sfi 
 
 63. Where a bill or acceptance is materially altered with- Alteration of 
 out the assent of all parties liable on the bill, the bill is voided, jjj^p ^^^^ 
 except as against a party who has himself made, authorized, s. 64. 
 or assented to the alteration, and subsequent indorsers : 
 
 Provided, tiiat where a bill has been materially altered, but Proviso, 
 the alteration is not apparent, and the bill is in the hands of a 
 holder in due course, such holder may avail himself of the 
 bill as if it had not been altered, and may enforce payment of 
 it according to its original tenor : 
 
 2. In particular, the following alterations are material, What are 
 namely, the alteration of the date, the sum payable, the time Sfon"' 
 of payment, the place of payment, and where a bill has been 
 accepted generally, the addition of a place of payment without 
 the acceptor's assent. 
 
 Acceptance and Payment for Honor. 
 
 64. Where a bill of exchange has been protested for dis- Acceptance 
 honor by non-acceptance, or protested for better security, and {"' ^°^°^ ^^^ 
 IS not overdue, any person, not being a party already liable imp. Act, 
 thereon, may, with the consent of the holder, intervene and *• ^■ 
 accept the bill supra protest, for the honor of any party liable 
 thereon, or for the honor of the person for whose account the 
 
 bill is drawn : 
 
 2 A bill may be accepted for honor for part only of the In part, 
 sum for which it is drawn : 
 
 3. An acceptance for honor supra protest, in order to be Requirements 
 valid, must— ^°' validity. 
 
 (a) Be written on the bill, and indicate that it is an accept- 
 ance for honor ; 
 
 (6) Be signed by the acceptor for honor : 
 
 4. Where an acceptance for honor does not expressly state For whose 
 for whose honor it is made, it is deemed to be an acceptance honor, 
 for the honor of the drawer : 
 
 5. Where a bill payable after sight is accepted for honor, its Computotion 
 maturity is calculated from the date of protesting for non- of time, 
 acceptance, and not from the date of the acceptance for honor. 
 
 65. The acceptor for honor of a bill by accepting it engages Liability „£ 
 that he will, on due presentment, pay the bill according to the acceptor for 
 tenor of his acceptance, if it is not paid by the drawee, pro- £^°°'"a * 
 vided it has been duly presented for payment and protested s.ee! 
 
 for non-payment, and that he receives notice of these facts : 
 
 2. The acceptor for honor is liable to the holder and to all To what 
 arties to the bill subsequent to thf party for whose honor he P""**- 
 las accepted. 
 
 hi 
 
■ 
 
 526 
 
 BILLS OF EXCHANGE. 
 
 2; 
 
 
 r- 
 
 03 
 ?3 
 
 Preaentment 66. Where a dishonored bill has been accepted for honor 
 for*honC!' siipra protest, or contains a reference in case of need, it must 
 Imp. Act, be protested for non-payment before it is presented for pay- 
 ment to the acceptor for honor, or referee in case of need : 
 
 B.61 
 
 I 
 
 ^'ntment^'* 2. Where the address of the acceptor for honor is in the 
 same place where the bill is protested for non-payment, the 
 bill must be presented to him not later than the day following 
 its maturity ; and where the address of the acceptor for honor 
 is in some place other than the place where it was protested 
 for non-payment, the bill must be forwarded not later than the 
 day following its maturity for presentment to him : 
 
 Excuses for 3. Delay in presentment or non-presentment is excused by 
 menTor^delay. ^^y circumstance which would excuse delay in presentment 
 for payment or non-presentment for payment : 
 
 non*pBymenti, *■ When a bill of exchange is dishonored by the acceptor 
 for honor, it must be protested for non-payment by him. 
 
 honoT^Ua ^'^- "^^^^^ a bill has been protested for nonpayment, any 
 protest. person may intervene and pay it aitpra protest for the honor 
 
 B.'es' ^''*' ^^ ^'^y P^'^^y liable thereon, or for the honor of the person for 
 whc^e account the bill is drawn : 
 
 If more than 
 one offer to 
 pay. 
 
 Attestation, 
 
 Basis thereof. 
 
 Liabilities 
 and rights in 
 such case. 
 
 Delivery to 
 payer for 
 honor. 
 
 Effect of re- 
 fusal to re- 
 ceive pay- 
 ment. 
 
 2. Where two or more persons offer to pay a bill for the 
 honor of different parties, the person whose payment will dis- 
 charge most parties to the bill shall have the preference : 
 
 3. Payments for honor supra protest, in order to operate as 
 such and not as a mere voluntary payment, must be attested 
 by a notai iai act of honor, which may be appended to the pro- 
 test or form an extension of it ; 
 
 4. The notarial act of honor must be founded on a declara- 
 tion made by the payer for honor, or his agent in that behalf, 
 declaring his intention to pay the bill for honor, and for 
 whose honor he pays ; 
 
 5. Where a bill has been paid for honor, all parties sub- 
 sequent to the party for whose honor it is paid are discharged, 
 but the payer for honor is subrogated for and succeeds to both 
 the rights and duties of the holder as regards the party for 
 whose honor he pays, and all parties liable to that party ; 
 
 6. The payer for honor, on paying to the holder the amount 
 of the bill and the notarial expenses incidental to its dishonor, 
 is entitled to receive both the bill itself and the protest. If 
 the holder does not on demand deliver them up, he shall be 
 liable to the payer for honor in damages ; 
 
 7. Where the holder of a bill refuses to receive payment 
 supra protest, he shall lose his right to recourse against any 
 party who would have been discharged by such payment. 
 
BILLS OF EXCHANGE. 
 
 527 
 
 Lost Instruments. 
 
 68. Where a bill has been lost before it is overdue, the Holder's right 
 person who was holder of it may apply to the drawer to give *« duplicate 
 himanother bill of the same tenor,givingsecurity to the drawer, " °*' ' ' 
 
 if required, to idemnify him against all persons whatever in ^""^ ^''*' 
 case the bill alleged to have been lost shall be found again ; 
 
 2. If the drawer, on request ad aforesaid, refuses to give such If refused, 
 duplicate bill, he may be compelled to do so. 
 
 69. In any action or proceeding upon a bill, the court or a Action on lost 
 judge may order that the loss of the instrument shall not be b'l'- 
 
 set up, provided an indemnity is given to the satisfaction of Imp. Act, 
 the court or judiie against the claims of any other person upon "' ^^' 
 the instrument in question. 
 
 Bill in a Set. 
 
 TO. Where a bill is drawn in a set, each part of the 
 being numbered, and containing a reference to the other parts, 
 the whole of the parts constitute one bill; 
 
 gg^ Ab to bills in 
 
 sets. 
 
 Im 
 
 8 
 
 'ff, 
 
 Act 
 
 2. Where the holder of a set indorses two or more parts to If indorsed to 
 difierent persons, he is liable on every such part, and every gong'*"' ^'' 
 indorser subsequent to him is liable on the part he has himself 
 indorsed as if the said parts were separate bills ; 
 
 3. Where two or more parts of a set are negotiated to dif- If nesrotiatcd 
 ferent holders in due course, the holder whose title first accrues hoidOTs'^*''* 
 is, as between such holders, deemed the true owner of the bill ; 
 
 but nothing in this sub-section shall affect the I'ights of a per- 
 son who in due course accepts or pays the part first presented 
 to him ; 
 
 4. The acceptance may be written on any part, and it must Acceptance, 
 be written on one part only ; 
 
 5. If the drawee accepts more than one part, and such jf niore than 
 accepted parts get into the hands of different holders in due one p»rt 's 
 course, he is liable on every such part us if it were a separate *'"'^P**"' 
 bill ; 
 
 6. When the acceptor of a bill drawn in a set pays it with- Payment 
 out requiring the part bearing his acceotance to be delivered hiery'of pro- 
 up to him, and that part at maturity is outstanding in the per part, 
 hands of a holder in due course, he is liable to the holder 
 thereof ; 
 
 7. Subject to the preceding rules, where any one part of a Discharge, 
 bill drawn in a set is discharged by payment or otherwise, the 
 
 whole bill is discharged. 
 
528 
 
 BILLS OF EXCHANGE. 
 
 Conflict of Laivs. 
 
 Rulen where 
 Uws conflict. 
 
 11. Where a bill drawn in one country is negotiated, 
 Imp Act accepted or payable in another, the rights, duties and liabilities 
 8. 72, varied, of the parties thereto are determined as follows : — 
 
 Validity, how 
 determiDed. 
 
 Proviso. 
 
 Drawing in- 
 doraement. 
 
 Proviso. 
 
 Datiea of 
 holder. 
 
 Currency. 
 
 Due date. 
 
 Evidence of 
 proteat. 
 Not in Imp. 
 Act. 
 
 (a) The validity of a bill as regards requisites in form is 
 determined by the law of the place of issue, and the validity 
 as regards requisite-^ in form of the supervening contracts, such 
 as acceptance, or indorsement, or acceptance supra protest, is 
 determined by the law of the place where such contract was 
 made : 
 
 Provided that — 
 
 (1) Where a bill is issued out [of Canada] it is not invalid 
 by reason only that it is not stamped in accordance with the 
 law of the place of issue ; 
 
 (2) Where a bill issued out of [Canada] conforms, as regards 
 requisites in form, to the law of Canada, it may, for the pur- 
 pose of enforcing payment thereof, be treated as valid as 
 between all persons who negotiate, hold or become parties to it 
 in [Canada] ; 
 
 (b) Subject to the provisions of this Act, the interpretation 
 of the drawing, endorsment, acceptance or acceptance supra 
 protest of a bill, is determined by the law of the place where 
 such contract is made : 
 
 Provided, that where an inland bill is iii'^irsed in a foreign 
 country, the indorsement shall, as regards the payer, be inter- 
 preted according to the law of [Canada] ; 
 
 (c) The duties of the holder with respect to presentment for 
 acceptance or payment and the necessity for or sufficiency of a 
 protest or notice of dishonor, or oi^herwise, are determined by 
 the law of the place where the act is done or the bill is dis- 
 honored ; 
 
 (d) Where a bill is drawn out of but payable in [Canada], 
 and the sum payable is not expressed in the currency of 
 [Canada], the amount shall, in the absence of some express 
 stipulation, be calculated according to the rate of 6xchange 
 for sight drafts at the place of payment on the day the bill 
 is payable ; 
 
 Ce) Where a Bill is drawn in one country and is payable in 
 another, the due date thereof is determined according to the 
 law of the place where it is payable. 
 
 (f) If a bill or note, presented for acceptance, or payable 
 out of Canada, is protested for non-acceptance or non-pay- 
 ment, a notarial copy of the protest and of the notice of dis- 
 honor, and a notarial certificate of the service of such notice 
 shall be received in all courts, as prima facie evidence of such 
 protest, notice and service. 
 
BILLS OF EXCHANGE. 
 
 52» 
 
 PART III. 
 
 Cheques on a Bank. 
 
 72;. A cheque is a bill of exchange drawn on a bank, pay- Cheque de- 
 
 able on demand : 5"^- . , _„ 
 
 Imp. Act 8. 73. 
 
 2. Except as otherwise provided in this part, the provisions Certain provi- 
 
 of this Act applicable to a bill of exchange paj'able on demand sions to apply. 
 
 apply to a checiue. 
 
 73. Subject to the provisions of this Act — 
 
 (a) Where a cheque is not presented for payment within a Presentment 
 reasonable time of its issue, and the drawer or the person on of cheque for 
 whose account it is drawn had the right at the time of such j^^^g^g 74 
 presentment, as between him and the bank, to have the cheque 
 paid, and suffers actual damage through the delay, he is dis- 
 charged to the extent of such damage, that is to say, to the 
 extent to which such diawer or person is a creditor of such 
 bank to a lai'ger amount than he would ha.e been had such 
 cheque been paid ; 
 
 (h) In determining what is a reasonable time, regard shall 
 be had to the nature of the instrument, the usage of trade and 
 of banks, and the facts of the particular case ; 
 
 (c) The holder of such cheque, as to which such drawer or 
 person is discharged, shall be a creditor, in lieu of such drawer 
 or person, of such bank to the extent of such discharge, and 
 entitled to recover the amount from it. 
 
 74. The duty and authority of a bank to pay a cheque Revocation of 
 drawn on it by its customer are terminated by — bank's author- 
 
 (a) Countermand of payment; Imp. Acts. 75. 
 
 (bj Notice of the customer's death. 
 
 General cross- 
 ing defined. 
 
 Cro.sskd Cheques. 
 
 75. Where a cheque bears across its face an addition of- 
 
 (a) The word ["bank"] between two parallel transverse lines, imp" Acts. 76 
 either with or without the words "not negotiable;" or — varied. 
 
 (h) Two parallel transverse lines simply, either witli or with- 
 out the words "not negotiable;" 
 
 That addition constitutes a crossing, and the cheque is 
 crossed generally ; 
 
 2. Where a che(]ue bears across its face an addition of the special cross- 
 name of a bank, either with or without the words "not negoti- ing- 
 able," that addition constitutes a crossing, and the cheque is 
 crossed specially and to that bank. 
 I. 1 
 

 o 
 
 4i' 
 
 (A 
 
 i 
 
 530 
 
 OroHir;? by 
 drawer or 
 after iasue. 
 Imp. Act 8. 77, 
 varied. 
 General or 
 special. 
 
 May be 
 varied. 
 
 Words may be 
 added. 
 
 Ue-crogsing 
 for oolleotion. 
 
 CroBsing by 
 bank. 
 
 Uacrogsing 
 crossed 
 cheque. 
 Not in Imp. 
 Act. 
 
 GnwiiDg is a 
 material part 
 of cheque 
 
 Imp. Acts. 78. 
 
 BILLS OF EXCHANGE. 
 
 76. A cheque may be crossed generally or specially by the 
 drawer : 
 
 2. Where a cheque is uncrossed, the holder may cross it 
 generally or specially : 
 
 3. Where a cheque is crossed generally, the holder may cross 
 it specially : 
 
 4. Where a cheque is crossed generally or specially, the 
 holder may add the words " not negotiable : " 
 
 5. Where a cheque is crossed specially the bank to which 
 it is crossed may again cross it specially, to another bank for 
 collection : 
 
 6. Where an uncrossed cheque, or a cheque crossed gener- 
 ally, is sent to a bank for collection, it may cross it specially to 
 itself : 
 
 7. A crossed cheque may be reopened or uncrossed by the 
 drawer writing between the transverse lines, and initialling the 
 same, the words " pay cash." 
 
 77. A cro&ding authorized by this Act is a material part of 
 the cheque ; it shall not be lawful for any person to obliterate 
 or, except as authorized by this Act, to add to or alter the 
 crossing. 
 
 Duties of bank 78. Where a cheque is crossed specially to more than one 
 ohequw)'**^'^ bank, except when crossed to another bank as agent for coUec- 
 Imp. Acts. 79 ^^^'^^ ^^® bank on which it is drawn shall refuse payment 
 thereof : 
 
 Liability for 2. Where the bank on which a cheque so crossed is drawn, 
 J^P'°P®'' P*y" nevertheless pays the same, or pays a cheque crossed generally 
 otherwise than to a bank, or, if crossed specially, otherwise 
 than to the bank to which it is crossed, or to the bank acting 
 as its agent for collection, it is liable to the true owner of the 
 cheque for any loss he sustains owing to the cheque having 
 been so paid : 
 
 When liability Provided, that where a cheque is presented for payment 
 accrue"* which does not at the time of presentment appear to be crossed, 
 
 or to have had a crossing which has been obliterated, or to 
 have been added to or altered otherwise than as authorized by 
 this Act, the bank paying the cheque in good faith and with- 
 out negligence shall not be responsible or incur any liability, 
 nor shall the payment be questioned by reason of the cheque 
 having been crossed, or of the crossing having been obliterated 
 or having been added to or altered otherwise than as authorized 
 by this Act, and of payment having been made otherwise than 
 to a bank or to the bank to which the cheque is or was 
 crossed, or to the bank acting as its agent for collection, as 
 the case may be. 
 
BILLS OK EXCHANGE. 
 
 531 
 
 79. Where the bank, on which a crossed cheque is drawn Protection to 
 in good faith and witliout netrlij^ence pays it, if crossed f^ener- drawe*"where 
 ally, to a bank, or, if crossed specially, to the bank to which it cIikiup in 
 
 is crossed, or to a bank acting as its agent for collection, the crosBed. 
 bank paying the chefiue, and if the checjue has come into the j^ j^^^^ g^ 
 hands of the payee, tlie drawer, shall respectively be entitled 
 to the same rights and be placed in the same position as if 
 payment of the cheque had been made to the true owner 
 thereof. 
 
 80. Where a person takes a crossed cheque which bears on Kffeot of ofobr- 
 it the words "not negotiable," he shall not have and shall not >"« on h"'<ier. 
 be capable of giving a better title to the cheque than that j^p^^jg gj 
 which had the person from whom he took it. 
 
 81. Where a bank, in good faith and without negligence, pfo^g^tig^ ^^ 
 receives for a customer payment of a checiue crossed generally collecting 
 or specially to itself, and the customer has no title, or a defec- ''*°''" 
 
 tive title thereto, the bank shall not incur any liability to the i^p Acts. 82. 
 true owner of the che(|ue by reason only of having received 
 such payment. 
 
 PART IV. 
 
 PROMISSORY NOTES. 
 
 83. A promissory note is an unconditional promise in Promissory 
 writing made by one per.son to another, signed by the maker, note defined, 
 engaging to pay, on demand or at a fixed or determinable 
 future time, a sum certain in money, to, or to the order of, a ^^' "* *' ' 
 specified person, or to bearer : 
 
 2. An instrument in the form of a note payable to maker's indoraement 
 order is not a note within the meaning of this section, unless by maker, 
 and until it is indorsed by the maker : 
 
 3. A note is not invalid by reason only that it contains also Collateral 
 a pledge of collateral security with authority to sell or dispose piedpedoes 
 
 , , ^ 5 not invalidate. 
 
 thereof : 
 
 4. A note which is, or on the face of it purports to be, both inland and ■ 
 made and payable within Canada, is an inland note ; any other fo'^'gn. 
 note is a foreign note. 
 
 83. A promissory note is inchoate and incomplete until Delivery 
 delivery thereof to the payee or bearer. necessary. 
 
 •^ ^ "^ Imp. Acts. 84, 
 
 84. A promissory note may be made by two or more j^j^^ ^^^ 
 makers, and they may be-liable thereon jointly, or jointly and several notes, 
 severally, according to its tenor : Imp. Act s. 85. 
 
532 
 
 HILLS OF EXCHAN(;E. 
 
 Ai to number. 2. Where a note runs " I promise to pay," and is sij^'ned by 
 two or more persons, it is deemed to be their joint ;.nd .scvtjral 
 note. 
 
 jf 
 
 o 
 
 r 
 
 I 
 
 C 
 
 ReMonable 
 tirae. 
 
 Defects with- 
 out, notice. 
 
 Note payable S^. Whore a note payable on demand has been endorsed, it 
 
 on demand, inu.st bo presented for payment witliin a reasonable time of 
 
 Imp. Acts. 86 the indor.sement ; if it is not so presented, the endorser is di.s- 
 
 varied. char^^ed ; [if however, with the assent of the indorser it has 
 
 been delivered as a collateral or continuin<jf security it need 
 
 not be presented for payment so long as it is held as such 
 
 security] : 
 
 2. In determining what is a reasonable time, regard shall 
 be had to the nature of the instrument, the usage of trade, and 
 the facts of the particular case : 
 
 '.\. Where a note payable on demand is negotiated, it is not 
 deemed to be overdue, for the purpose of att'octing the holder 
 with defects of title of which he had no notice, by reason that 
 it appears that a reasonable time for presenting it for payment 
 has elapsed since its issue. 
 
 Presentment 8(». Wliere a piomi.ssorv note is in the body of it made 
 
 of note for payable at a particular place, it must be presented for payment 
 at that place. But the maker is not discharged by the oiai.s- 
 
 Imp. Act 8. 87 sion to pi'esent the note for payment on the day that it matures. 
 
 varied. B^^t if any suit or action is instituted thereon against him before 
 
 presentation, the costs thereof shall be in the discretion of the 
 court. If no place of payment is specified in the body of the 
 note, presentment for payment is not necessary in order to 
 render the maker liable : 
 
 Liability. 
 
 Place for pre- 
 sentment. 
 
 2. Presentment for payment is necessary in order to render 
 the indorser of a notts liable : 
 
 3. W^hen a note is in the body of it made payable at a 
 particular place, presentment at that place is necessary in order 
 to render an indorser liable ; but when a place of payment is 
 indicated by way of memorandum only, presentment at that 
 place is sufficient to render the indorser liable, but a present- 
 ment to the maker elsewhere, if sufficient in other respects, 
 shall also suffice. 
 
 87. The maker of a px'omissory note, by making it — 
 
 (a) Engages that he will pay it according to its tenor ; 
 
 (J)) Is precluded from denying to a holder in due course the 
 existence of the payee and his then capacity to endorse. 
 
 Application of 88. Subject to the provisions in this part, and except as by 
 part II to t^ijs section provided, the provisions of this Act relating to 
 Im Acts 89 ^^^^^ ^^ exchange apply, with the necessary modifications, to 
 promissory notes : 
 
 Liability of 
 
 maker. 
 
 Imp. Act 8, 88. 
 
HILLS OF FACHANQE. 
 
 2. In applying those provisions tlie maker of a note .shall he 
 deemed to correspond with the acceptor of a hill, and the first 
 irtdorser of a note sliall he deemed to correspond with the 
 drawer of an accepted hill payahle to drawer's oiiler: 
 
 3. The following provisions as to bills do not apply to notes, 
 namely, provisions relating to — 
 
 («) Presentment for acceptance ; 
 
 (h) Acceptance ; 
 
 (c) Acceptance supra protest; 
 
 (tl) Bills in a set: 
 
 4. Where a foreign note is dishonored, protest thereof is 
 unnecessary, except for the preservation of the liabilities of 
 indorsers. 
 
 533 
 
 Correspond 
 ing terma. 
 
 What provi- 
 ■ioni do not 
 •pply. 
 
 As to foreip^ 
 note. Varied. 
 Not in Imp. 
 Act. 
 
 PARV V. 
 
 SUPPLEMENTAKY. 
 
 89. A thing is deemed to be done in good faith, within the Good fa'tl*- 
 meaning of this Act, where it is in fact done honestly whether "''' *''■•""• 
 it is done negligently or not. 
 
 90. Where, by this Act, any instrument or writing is Sinnature. 
 required to be signed by any pei-son, it is not necessary that '"p-'^<=*^'^ • 
 he should sign it with his own hand, but it is sufficient if his 
 signature is written thereon by some other person by or under 
 
 his authority : 
 
 2. In the case of a corporation, where, by this Act, any A» to corpora- 
 instrumsnt or writing is required to be signed, it is sufficient *'°"'' 
 if the instrument or writing is duly sealed with the corporate 
 seal ; but nothing in this section shall be construed as requir- 
 ing the bill or note of a corporation to be under seal. 
 
 91. Where, by this Act, the time limited for doing any act Computation 
 or th'ng in less than three days, in reckoning time, non- J^p.^Aot a. 
 business days are excluded : " non-business days," for the pur- 92, varied, 
 poses of this Act, mean the days mentionea in the fourteenth 
 
 section of this Act ; any other day is a business day. 
 
 93. For the purposes of this Act, where a bill or note is When noting 
 required to be protested within a specified time or before some to^proteat?" 
 further proceeding is taken, it is sufficient that the bill or note Imp- Act a. 93. 
 has been noted for protest before the expiration of the specified 
 time or the taking of the proceeding ; and the formal protest 
 may be extended at any time thereafter as of the date of the 
 noting. 
 
f 
 
 r 
 
 Proteit when 
 notary is not 
 accBBBible. 
 Imp. Act 8, 
 94, varied. 
 
 Expenses. 
 
 Fees charge- 
 able. 
 
 Forms. 
 
 Evidence of 
 presentation, 
 dishonor and 
 notice. 
 
 534 BILLS OF EXCHANGE. 
 
 93. Where a dishonored bill is authorized or required to be 
 protested, and the services of a notary cannot be obtained at 
 the place where the bill is dishonored, any justice of the peace 
 resident in the place may present and protest such bill and 
 give all necessary notices, and shall have all the necessary 
 powers of a notary in respect thereto : 
 
 2. The expense of noting and protesting any bill or note, 
 and the postage thereby incurred, shall be allowed and paid to 
 the holder in addition to any interest thereon: 
 
 3. Notaries may charge the fees in each Province heretofore 
 allowed them: 
 
 4. The forms in the first schedule to this Act may be used 
 in noting or protesting any bill or note and in giving notice 
 thereof. A copy of the bill or note and indorsement may be 
 included in the forms, or the original bill or note '^ny be 
 annexed and the necessary changes in that behalf made in the 
 forms : 
 
 5. A protest of any bill or note, and any copy thereof as 
 copied by the notary or justice of the peace, shall, in any action 
 be prima facie evidence of presentation and dishonor, and also 
 of service of notice of such presentation and dishonor as stated 
 in such protest. 
 
 Dividend war- 94. The provisions of this Act as to crossed cheques shall 
 orosMd.*'' apply to a warrant for payment of dividend. 
 
 Imp. Act 8.95. 
 
 Repeal. 95. The enactments mentioned in the second schedule to 
 
 mp. c 8. . ^y^.^ ^^^ ^j,g hereby repealed, as from the commencement of 
 
 this Act, to the extent in that schedule mentioned : 
 
 Provided, that such repeal shall not affect anything done or 
 suffered, or any right, title or interest acquired or accrued 
 before the commencement of this Act, or any legal proceeding 
 or remedy in respect of any such thimg, right, title or interest; 
 
 2. Nothing in this Act or in any repeal effected thereby 
 shall affect the provisions of " The Bank Act : " 
 
 3. The Act of the Parliament of Great Britain passed in the 
 fifteenth year of thg reiffii of His late Majesty George III, 
 intituled " An Act to restrain the negotiation of Promissory 
 Notes and Inland Bills of Exchange under a limited sum within 
 thai, part of Great Britaiii called England," and the Act of the 
 said Parliament passed in the seventeenth year of His said 
 Majesty's reign, intituled " An Act for further restraining the 
 negotiation of Proooissory Notes and Inland Bills ot' Exchange 
 under a limited sum within that part of Great Britain called 
 England," shall not extend to or be in force in any Province 
 of Canada, nor shall the said Acts make void any bills, notes, 
 drafts or orders which have been or may be made or uttered 
 therein. 
 
 Proviso. 
 Varied. 
 
 "The Bank 
 Act," not 
 affected. 
 Not in Imp. 
 Act. 
 
 Imperial Acts 
 15 Geo. Ill, 
 0. 61, and 17 
 G^o. Ill, 0.30, 
 not to apply. 
 Not in Imp. 
 Act. 
 
BILLS OF EXCHANGE. 
 
 535 
 
 96. Where any Act or document refers to any enpctment Co itmction 
 repealed by this Act, the Act or document shall be construed Act) &c!' 
 and shall operate as if it referred to the corresponding pro- imp. Acts. 99. 
 visions of this Act. 
 
 9 7. This Act shall come into force on the first day of Sep- Commence- 
 tembernoxt. mentofAot. 
 
 98. The rules of the poramon law of England, including the Application of 
 law merchant, save in so far as they are inconsistent with the of°E^iand *" 
 express provisions of the said Act, as hereby amended, shall imp. Act b.' 
 apply, and shall be taken and held to have applied from the ^^ t^)' '""^d. 
 date on which the said Act came into force, to bills of exchange, 
 promissory notes and cheques. 54, 55 Vict. c. 17, s. 8. 
 
 FIRST SCHEDULE. 
 
 FORM A. 
 
 Noting for Non-Acceptance. 
 
 (Copy of BUI and Indorsements.) 
 
 On the 18 , the above bill was, by me, at 
 
 the request of , presented for acceptance to E. F., 
 
 the drawee, p3r8onally (or, at his residence, office or usual place of busi- 
 ness), in the city (town or village) of and 1 received for 
 answer, " " ; The said bill is therefore noted 
 for non-acceptance. 
 
 A. B., 
 
 Notary Public. 
 (Date and place, ) 18 . 
 
 Due notice of the above was by me served upon ] p' t)' f the 
 
 JdrAwor i 
 indorse'r, { Personally, on the day of [or, at his 
 
 residence, office or usual place of business) in , on the 
 
 day of (or, by depositing such notice, directed 
 
 to him, at , in Her Majesty's post office in the city [town or 
 
 village], on the day of , and prepaying the postage 
 
 thereon.) 
 
 A. B., 
 
 Notary Fublic, 
 (Date and place.) 18 . 
 
 Form B. 
 
 protest for non- acceptance or for non-payment of a bill payable 
 
 generally. 
 
 (Copy of Bill and Indorseme' is.) 
 
 On this day of 
 
 notary public for the Province of 
 
 , in the year 18 , I, A. B., 
 , dwelling at , in 
 
636 
 
 BILLS OF EXCHANGE. 
 
 the Province of , at the request of , did exhibit the 
 
 original bill of exchange, whereof a true copy is above written, unto 
 
 . > thereoi personally {or, at his residence, office or 
 
 usual place of business) in , and, speaking to him; If (or his wife, 
 
 his clerk, or his servant, &c.,) did demand < f ( hereof; unto 
 
 which demand I , {answered: " ." 
 
 Wherefore I, the said notary, at the request aforesaid, have protested, 
 and by thesn presents do protest against the acceptor, drawer and indorsers 
 (or drawer and indorsers) of the said bill, and other parties thereto or 
 therein concerned, for all exchange, re-exchange, and all costs, damages 
 
 and interest, present and to come, for want of < m » t ( °^ *^® ^*^*^ 
 
 bill. 
 
 All of which I attest by my signature. 
 
 (Protested in duplicate.) 
 
 A. B., 
 
 Notary Public. 
 
 —J — 
 
 FOBM 0. 
 
 FBOTEST FOR NON-ACCEPTANCE OR FOR NON-PAYMENT OF A BILL PAYABLE 
 
 AT A STATED PLACE. 
 
 {Copy of Bill aiid Indorsements.) 
 
 On this day of , in the year 18 , 1, A. B., notai \ 
 
 public for the Province of , dwelling at , in the Pro- 
 
 vince of , at the request of , did exhibit the original 
 
 bill of exchange, whereof a true copy is above written, unto E. F. the 
 
 I '^^t^ f *'^^r6of» **' » being the stated place where the 
 
 said bill is payable, and there, speaking to did demand 
 
 Im^menT^} °* *^^ ^^^^ ^^" ' ^^^^ ^^''''^ demand he answered : " 
 
 Wherefore I, the said notary, at the request aforesaid, have protested, 
 and by these presents do protest against the acceptor, drawer and indorsers 
 {or drawer and indorsers) of the said biU, and all other parties thereto or 
 therein concerned, for all exchange, re-exchange, costs, damages and 
 
 interest, present and to come, for want of •! » . [- of the said bill. 
 
 All of which I attest by my signature. 
 
 (Protested in duplicate. ) 
 
 A. B., 
 
 Notary Public. 
 
 Form D. 
 
 protest for non-payment of a bill noted, but not protested for 
 
 non-acceptance. 
 
 If the protest is made by the sam£ notary who noted the bill, it should 
 imviediately follow the act of noting and memorandum of service tJiereof, and 
 begin ivith the loorrfa "and afterwards on, «&c.," cojitmiwif/ as in the last 
 preceding form, bkit introducing between the words " did " and " exhibit," 
 the word "again," and, in a parenthesis, between the words " written " and 
 "unto," the words: "and which bill was by me duly noted for non- 
 acceptance on the day of . 
 
BILLS OF EXCHANGE. 
 
 587 
 
 But if the pt'otest is not made by the same notary, then it should follow a 
 copy of the origittal bill and indorsements and noting marked on the bill — 
 and then in the protest introduce, in a parenthesis, between the icords " writ- 
 ten " and " unto," the words : '* and which bill was on the day of 
 , by , notary public for the Province of , 
 noted for non-acceptance, a8 appears by hia note thereof marked on the 
 said bill." 
 
 Form E. 
 
 PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE GENERALLY. 
 
 {Copy of Note and Indorsements.) 
 
 On this day of , in the year 18 , I A. B., 
 
 notary Public foi the Province of , dwelling at , 
 
 in the Province of , at the request of , did ex- 
 
 hibit the original promissory note, whereof a true copy is above written, 
 unto , the promisor, personally {or, at his residence, 
 
 office, or usual place of business), in , 
 
 and speaking to himself {or his wife, his clerk or his servant, &c.), 
 
 did demand payment thereof ; unto which demand < , !■ answered : 
 
 tt >> 
 
 Wherefore I, the said notary, at the request aforesaid, have protested, 
 and by those presents do protest against the promisor and indorsers of 
 the s^aid note, and all other parties thereto or therein concerned, for all 
 costs, damages and interest, present and to come, for want of payment of 
 the said note. 
 All of which I attest by my signature. 
 
 (Protested in duplicate.) 
 
 A. B. 
 
 Notary Public. 
 
 Form F. 
 
 PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE AT A STATED PLACE. 
 
 {Copy of Note and Indorsements.) 
 
 On this day , in the year 18 , I, A. B., 
 
 notary public for the Province of , dwelling at , 
 
 in the Province of , at the request of , did 
 
 exhibit the original promissory r ote, whereof a true copy is above written, 
 
 unto the promisor, at , being the stated 
 
 place where the said note is payable, and there, speaking to 
 
 did demand payment of the said note, unto which demand he answered : 
 it >> 
 
 Wherefore I, the said notary, at the request aforesaid, have protested, 
 and by these presents do protest against the promisor and indorsers of 
 the said note, and all other parties thereto or therein concerned, for all 
 costs, damages and interest, present and to come, for want of payment of 
 the said note. 
 
 All which I attest by my signature. 
 
 (Protested in duplicate.) 
 
 A. B., 
 
 Notary Public. 
 
■■Pi^^ 
 
 538 
 
 BILLS OF EXCHANOE. 
 
 Form O. 
 
 c 
 
 
 i 
 
 03 
 3D 
 
 5 
 
 NOTABIAL NOTICE OF A NOTING, OE OF A PROTEST FOR NON-ACCEPTANCE, 
 OR OF A PROTEST FOR NON-PAYMBN? OF A BILL. 
 
 (Place aW date of Noting or of Protest. ) 
 
 iBt 
 
 at 
 
 To P. Q. {the drawer.) 
 
 Sir, 
 
 the 
 after 
 
 duly 
 
 days 
 
 Your bill of exchange for $ , dated at 
 
 , upon E. F., in favor of C. D., payable 
 
 J =, ' !■ was this day, at the request of 
 
 noted \ 1 a for /"on-af'ceptnnce. \ 
 
 protested J ^ "* (non-payment. J 
 
 A. B.. 
 
 Notary Public, 
 
 C Place and date of Notitig or of Protest.) 
 
 2nd. 
 To C. D. {indorser), 
 {or F. G.) 
 at 
 Sir, 
 Mr. P. Q.'s bill of exchange for 8 » dated at , 
 
 the , upon E. F., in your favor {or in favor of C. D.,) 
 
 payable days after \ j ^ ' t and by you indorsed, was 
 
 this day, at the request of duly 
 
 /noted ) h.Tr r^.^ t r. f non-acceptance. \ 
 \ protested { ''^ ""^ ""^ \ non-payment. J 
 
 A. B., 
 
 Notary Public. 
 
 Form H. 
 
 notarial notice of protest for non-payment of a note. 
 
 fPla^se and date of Protest.) 
 
 To 
 
 at 
 
 Sir. 
 
 Mr. P. Q.'s promissory note for $ 
 , the 
 
 ( days "J 
 
 payable < months > 
 
 (on j 
 
 , dated at 
 after date to 
 
 < ^7°n< \ or order, and indorsed by you, was this day, at the 
 
 request of , duly protested by me for non- 
 
 payment. 
 
 A. B., 
 
 Notary Public. 
 
BILLS OF EXCHANGE. 
 
 539 
 
 Form I. 
 
 NOTARIAL SERVICE OF NOTICE OF A PROTEST FOR NON-ACCEPTANCE OR 
 NON-PAYMENT OF A BILL, OR OF NON-PAYMENT OF A NOTE (to be Sub- 
 joined to the Protest.) 
 
 And afterwards, I, the aforesaid protesting notary public, did serve due 
 notice, in the form prescribed by law, of the foregoing protest for 
 
 {rSir-rS""} »' ««■ {^1} ""'"-y p'*"«-" "p»" {1:%:} 
 
 the < . , J- personally, on the day of (or, at his resi- 
 
 dence, office, or usual place of business) in , on the 
 
 day of ; {or, by depositing such notice, directed to the said 
 
 I „• is'' V at , in Her Majesty's post office in 
 
 on the day of , and prepaying the postage 
 
 thereon). 
 
 In testimony whereof, I have, on the last mentioned day and year, 
 at aforesaid, signed these presents. 
 
 A. B., 
 
 INotary Pitblic. 
 
 Form J. 
 
 PROTEST BY A JUSTICE OF THE PEACE (WHERE THERE IS NO NOTARY) FOR 
 NON-ACCEPTANCB OF A BILL, OR NON-PAYMENT OF A BILL OR NOTE. 
 
 (Copy of BUI or Note and Indorsements.) 
 
 On this dav of , in the year 18 , I, N. O., 
 
 one of Her Majesty's justices of the peace for the district {or county, 
 &c.), of , in the Province of , dwelling at (or 
 
 near) the village of , in the said district, there being no 
 
 practisins; notary public at or near the said village (or any other leqal 
 coitse), did. at the request of and in the 
 
 presence of well known unto me, 
 
 ' bill 
 note 
 f drawer 
 P. Q., the -i acceptor 
 
 ( promisor _ 
 usual place of business) in , and speaking to himself 
 
 (his wife, his clerk or his servant, &c.), did demand | """^^'J^""^ \ 
 
 thereof, unto which demand | ,® > answered : " ", 
 
 Wherefore I, the said justice of the peace, at the request aforesaid, 
 have protested, and by these presents do protest against the 
 
 r drawer and indorsers "j n "11 
 
 •{ promisor and indorsers > of the said •{ . 
 
 1^ acceptor, drawer and indorsers I i o e 
 
 parties thereto and therein concerned, for all exchange, re-exchange, and 
 all costs, damages and interest, piesent and to come, for want of 
 
 exhibit the original \ \ > whereof a true copy is above written unto 
 
 > thereof, personally {or at his residence, office or 
 J 
 
 and all other 
 
 All which by these presents attested by the signature of the said {the 
 witness) and by my hand and seal. 
 
 (Protested in duplicate.) 
 
 {Signature of the Witness.) 
 
 {Signaturel^and seal of the J. P.) 
 
540 
 
 BILLS OF EXCHANGE. 
 
 i 
 
 CD 
 
 SECOND SCHEDULE. 
 
 ENACTMENTS REPKALED. 
 
 o 
 
 Province and Chapter. 
 
 Title of Act and extent of repeal. 
 
 Dominion of Canada : 
 Chap. 123, Revised Statutes 
 
 Province of Qiieheo : 
 Civil Code of Lower Canada 
 
 Nova Scotia : 
 Revised Statutes, third series, chap. 
 82 
 
 An Act resiwctinK Bills of Exchange and Promissory 
 Notes.— The whole Act. 
 
 Articles 2,279 to 2,351, both Inclusive [*). 
 
 New Bmnswiclc : 
 Revised Statutes, chap. 116 
 
 80 Vict.. 1867, chap. 34 
 
 tion 2. The other sections of this chapter have 
 been heretofore repealed. 
 
 " Of Bills, Notes and Choses in Action." Section 2. 
 The other sections of this chapter have been here, 
 tofore repealed. 
 
 An Act to amend chap. 116 of the Revised Statutes, 
 " Of Bills, Notes and Choses in Action ; " also Act 
 12th Victoria, chapter 39, relating thereto. Sec- 
 tion 1. 
 
 
 [•Except in so far as such articles, or any of them, relate to evidence in regard to bills of 
 exchange, cheques and promissory notes.] 
 
BILLS OF EXCHANGE. 
 
 541 
 
 NOTES. 
 
 Rule for Construction of Act. The Act upon which the Statute is mcnlelled 
 is the English Bills of Exchange Act 1882. That Act was intended to be a, 
 code of the law relating to negotiable instruments. The proper course in in- 
 terpreting the Statute is in the first instance to examine the language of the 
 Statute and to ask what is its natural meaning, uninfluenced by any considera- 
 tions derived from the previous state of the law, and not to start with enquir- 
 ing how the law previously stood, and then assuming that it was probably 
 intended to leave it unalteretl, to see if the words of the enactment will bear 
 an interpretation in conformity with this view. The Act was not intended to 
 bo merely a code of the existing law. It was intended to alter and did 
 alter it in certain respects. It is not to be presumed that any particular pro- 
 vision was intended to be a statement of the existing law, rather than a sub- 
 stituted enactment ; per Lord Herschell, Bank of England v. Vagliano (1891) 
 A.C. 107, 144, 145. 
 
 Purpose of Note. The purpose of the present note is to collect only such 
 (lec:isi(>ns as have been made upon the Act itself. 
 
 Issue. A cheque is issued although parted with and issued in consequence 
 of fraud practised on the drawer ; Clutton v. Attenborough (1897) A.C. 90. 
 
 Form and Interpretation. A bill paj'able to " order" is e(juivalent 
 
 lo " my order" and when endorsed by the drawer is a valid bill ; Chamberlain 
 V. Young (1893) -2 Q.B, 706. 
 
 A condition added to a pnmiissory note that "no time given or security taken 
 " from or composition arrangement entered into witli either party hereto shall 
 "prejudice the rights of the holder to proceed against any other party" 
 makes it invalid as a note ; Kirk wood v. Smith (lS9t)) 1 Q.B. 582, and so does 
 a provision tiiat the title and riglit to the possession of the property for which 
 the note is given shall remain in the vendor : Dominion Bank v. Wiggins 
 (1894)21 A.R. 275. 
 
 A bill containing the words " which yon will please charge to my account 
 " and credit according to a registered letter I have a<ldressed to you" is a 
 valid bill; Re Boyes, Crofton v. Crofton (1886) 33 Cii. D. 612. 
 
 Fictitious Payee. Whenever a name is inserted in a bill as that of payee by 
 way of pretence merely without any intention that payment shall be made in 
 conformity therewith, the paj'ee is fictitious within s. 7 (3). It is not neces- 
 sary that the acceptor shoidd have been ctjgnizant of the fictitious character of 
 the payee ; Bank of England v. Vagliano (1891) A.C. 107, nor is it necessary 
 that the drawer of a cheque should l)e aware that tlio payee was a fictitious 
 or non-existent pcr.son ; Clutton v-. Attenborough (1897) A.C. 90, and where a 
 party was under obligation to make a deposit of a certain amount and obtained 
 a cheque for part of it payable to a person who was not intended to indorse it 
 and.the cheque was delivered unindorsed as part of the deposit it was held 
 that the payee was fictitious. Edinburgh Ballarat (Johl Quartz Mine Co. v. 
 Sydney (18!tl) 7 T. L. R. 656. 
 
 Restricting Negotiability. S. 8 (1). If the acceptor of a bill desires to 
 qualify his acceptance, he must do so on the face of tlio l)ill in clear and un- 
 equivocal terms, and so that any person taking the bill couhl not, if he acted 
 reasonably, fail to understand that it was accepted sul)ject to an express ((luili- 
 tication. Where above the acceptance the words " in favor of Mr. L. Delobbel 
 Flipo only " were written, the acceptance was held to be nevertheless a general 
 acceptance of a negotiable bill ; Meyer v. Dccroix (1891) A.C. 520. Where a 
 note was endorsed bj' way of security, and bore across the face "not negotiable 
 and given as security " and it was agreed that payment should not be i-ecjuired 
 wiiile certain secui'ities remained in the possession of the jiayee it was lield 
 that an action upon the note, while the payee still retained some of the securi- 
 ties and had not accounted for tiie others, was not based u))on the real contract 
 and that it could not succeed; Robertson v. Davies (1897) 27 8. C. R. 571. 
 
642 
 
 BILLS OF EXCriANOE. 
 
 O 
 
 c 
 
 < 
 r 
 
 :x 
 
 i 
 
 5 
 
 'CT^tS! 
 
 S. 8 (4). Bills nnd notes nre now negotinl)lo although tho words "or 
 order " or " or hearer " do not follow the name of the payee. 
 
 Blank BllL S. 20. Where a bill is accepted in blank and is filled up witli- 
 in a reasonable time it is valid in the hands of a holder in due course. Mor- 
 gan V. Hesketh (1889) tt T. L. R. 162. 
 
 Fraudulent use of Signature. S. 21. A person who without negligence 
 signs a document in the l)clief that he is witne.ssing a deed is not liable even to 
 a holder in due course. Lewis v. Clay (1898) 67 L. J. Q. B. 224; Sanguinnetti 
 V. Messiter (1885) 2 T. L. R. ISo. 
 
 Unauthorized Acceptance by Partner. f>. 23 (l>). Where the drawer of a 
 bill liad notice that the acceptance of a bill by one partner was a fraud upon 
 the other partner he was hold to be disentitled to recover thereon. Frye v. 
 Ives (1892) 8 T. L. R. 582. 
 
 Forged Endorsements. S. 24 (1). Bankers who obtain payment of or cash 
 and retain a clio(iue upon which the endorsement of the payee is forged are 
 liable to the true owner for conversion ; Kleinwort v. Comptoir National 
 D'Escomptede Paris (1894)2 Q. B. 157; Lacave v. Credit Lyonnois (1897) 1 
 Q. B. 148. 
 
 Forged Endorsements. R. 24 (2) (3) enacted in 1897 to a large extent alters the 
 law laid down in London and River Platte Bank v. Bank of Liverpool (1896) 1 
 Q. B. 7. Tiierc is no similar section in the English Act. A banker who pays 
 a cheque upon which is a forged endorsement will now be entitled to recover 
 back, from anj' party liable thereon after the forged endorsement, the amount 
 of the che(iue, provided notice of the forgery is given within a reasonable time 
 after he ac(iuires notice thereof. A reasonable time is not capalile of exact 
 definition. It must depend upon circutnstances. But the party upon whom 
 it is incumbent to do anything within a reasonable time fulfils his obligation 
 notwithstanding protracted delaj' so long as such delay is attributable to causes 
 beyond his control, and he has neither acted negligently nor unreasonably ; 
 Hick V. Raymond (1893) A. C. 22, 32. 
 
 Infant. A note of an infant even for necessaries is void as again.st him 
 though taken by an indorsee for value without notice of the infoncy ; Re 
 SoltykoflF, Ex parte Margrett (1891) 1 Q. B. 413. 
 
 Oral Agreeu.ont to Renew. SS. 21 (2b) 29 (2). Evidence of an oral agree- 
 ment to renew a bill at maturity cannot be received. New London Credit 
 Syndicate v. Neale (1898) 2 Q. B. 487. 
 
 Oral Agreement as to Method of Payment. SS. 21 (2b) 29 (2). An independ- 
 ent parol agreement that tlie note shall be satisfied upon certain work or ser- 
 vices being done or rendered by the maker, is, when performed, a satisfaction 
 of the note between the original porties ; McQuarrie v. Brand (1896)28 0. 
 R. 69. 
 
 Endorsement " Per Pro." If an agent has authority to endorse bills for 
 his principal, his aljuse of the authority will not affect a hoiuifde holder for 
 value ; Bryant v. Banque du Peuple (1893) A. C. 170. Cheques endorsed by an 
 agent without authority maj' be recovered by the true owner. Employers' 
 Liability Corpn. v. Skipper (1887) 4 T. L. R. 156. 
 
 Personal Liability. An ossignee for creditors who signs a note "P. L. 
 Assignee" is liable personally thereon under s. 26; Boyd v. Mortimer (1899) 
 30 O. R. 290, and a person who adds " First Minister of Zanzibar Government " 
 is personally liable ; Forwood v. Mathews (1893) 10 T. L. R. 138. 
 
 Consideration. S. 27. Forbearance to sue a principal without any agree 
 ment is sxifiicient consideration to entitle a creditor to recover against a 
 surety ; Carrique v. Beaty (1897) 24 A. R. 302, 310 ; Crears v. Hunter (1887) 
 19 Q, B. D. 341. Bankers are holders for value of cheques placed to the 
 credit of a customer's account though it may bo overdrawn ; Royal Bank of 
 Scotland v. Tottenham (1894) 2 Q. B. 715; Clarke v. London and County 
 Banking Co. (1897) 1 Q.B. 552. Forbearance to sue a debt l)elie\ed to be 
 enforceable is a good consideration for a note though no valid debt existed ; 
 Kingsford v. Oxenden (1890) 7 T. L. R. 13. 
 
BILLS OF EXCHANGE. 
 
 543 
 
 'or 
 
 Accommodation. S. 28. Evidence of conversations by a third party with 
 the Manager of a Bank, the holders of a note, showing that the same was 
 given for the accommodation of the Bank should he received ; Bank of Nova 
 Scotia v. Fish (1895) 24 S. C. R. 709. Payment by a drawer to the holder of 
 a bill, accepted for the drawer's accommodation, discharges the holder's claim 
 against the acceptor ; Solomon v. Davis (1883) 1 C. & E. 83. 
 
 Complete Bill S. 29 (1). A bill without a drawer's name is not complete 
 and regular and a holder cannot recover thereon ; South Wales &c. Coal Co. 
 V. Underwood (1898) 15 T. L. R. 157. 
 
 Holder in due course. A holder in due course is a person to whom after its 
 completion by and between the original parties a note has been negotiated. 
 The payee is not a holder in due course ; Lewis v. Clay (1898) 67 L. J. Q. B. 
 224. See s. 21(2). 
 
 Presumption of Value. S. 30, The payee of a promissory note given with- 
 out consideration cannot recover thereon ; Re Whitaker (1889) 42 Ch. D, 119. 
 Notes which to the knowledge of an executor were given as gifts and not for 
 value should not bo paid by him, and he will not oe allowed the payment 
 thereof on passing his accounts ; Re Williams (1896) 27 0. R. 405. Where 
 fraud is proven the onus is on the holder to prove both that value has been 
 given and that it has been given in good faith without notice of the fraud ; 
 Tatam v. Haslar (1889) 23 Q. B. D. 345 ; but the onus of proving value is not 
 shifted to the holder by the fact that the notes were made for the accommo- 
 dation of others ; Merchants' National Bank v. Ontario Coal Co. (1894) 16 P. 
 R. 87. The section has no application to proceedings by way of injunction ; 
 Hawkins v. Troup (1890) 7 T. L. R. 104. 
 
 Oiven for a Patent Right. S. 30 (4). A bill or note for a part interest in a 
 patent is void unless the words "given for a patent right" are written across 
 the face ; Craig v. Samuel (1895) 24 S. C. R. 278 ; Johnson v. Martin (1892) 
 19 A. R. 592. 
 
 Transfer Without Endorsement. S. 31. A transferee without endorsement 
 becomes upon endorsement a holder of a bill and the bill is then " negotiated " 
 within s. 31 (1); and the endorsement would be a breach of an injunction 
 restraining negotiation notwithstanding that the transfer without endorse- 
 ment was prior to the injunction : Day v. Longhurst (1893) 62 L.J. Ch. 334 ; 
 (1893) W.N. 3. 
 
 A transferee by delivery without endorsement who receives a bill by way of 
 pledge to secure repayment of an advance cannot recover against the maker in 
 the absence of an intention on the part of the transferor to transfer the whole 
 of his rights ; Good v. Walker (1892) 61 L. J.Q.B. 736. 
 
 ReetrictiTe Endorsement. S. 35. An endorsement to a bank for collection 
 gives no right to the bank to sue on the bill ; Williams v. Shadbolt (1885) 1 
 T.L.R. 417. 
 
 Defect of Title. S. 36 (2). The expression " defect of title " is a phrane 
 introduced in lieu of the old expression "subject to equities" which is an ex- 
 pression not adopted because the Imperial Act applied to Scotland and "sub- 
 ject to equities was an expression not known to Scottish Law; Alcock v. 
 Smith (1892) 1 Ch. 238, 263. The sub-section is only declaratory of the 
 English law where that law applies, and has no application to transactions 
 governed by the law of other countries, e.g., Norway, in which country, under 
 a judicial sale of a bill title was obtained to a bill free from equities ; Alcock 
 V. Smith (1892) 1 Ch. 238. An agreement between the maker and payee of a 
 note that it shall only be uaed for a particular purpose constitutes an equity 
 attaching to the note ; MacArthur v. MacDowall (1893) 23 S.C.R, 571. 
 
 Holder in due course. S. 38 (b). An endorsee does not cease to be a holder 
 in due course merely bv sending the bills to the drawer who returns them ; 
 Cchn v. Werner (1891) 8 T.L.R. 11. 
 
 Presentment for Pajrment. S. 45. A holder is entitled to know on the very 
 day on which a bill becomes due whether it is to be paid or dishonored ; Lon- 
 don and River Platte Bank v. Bank of Liverpool (1896) 1 Q.B. 7. 
 
 Presentment by sending a cheque by post to the Bank on which it is drawn 
 is a legal and customary mode of presentment ; R. v. Bank of Montreal (1886) 
 1 Ex. C.R. 154. 
 
 J 
 
544 
 
 HILLS OF EXCHANGE. 
 
 2 
 c 
 
 r* 
 
 r 
 
 3 
 
 Where a place is specified in a hill as the place of payment the bill must be 
 presented there to charge an endorser, althougli the acceptance may be 
 "general" within s. 19 ; Heirnstein v. Walker (18!)5) 11 T.L.R. 3.58. 
 
 Waiver. S. 46(c)- Where a drawer of a bill wrote accepting notice of non- 
 payment anil admitting his liability as though notice of dishonor had been 
 given in the usual way, but he did not know that the bill had not been pre- 
 sented for payment, it was held that ho had not waived presentment for pay- 
 ment ; Keith v. Burke (1885) 1 C. & K. ")51. 
 
 Notice of Dishonor. S. 49. Where a notice was sent in time to the wrong 
 address, viz., to another branch of a bank, and a telegram to the riglit address 
 was sent on the following morning (which would have been one clay late), it 
 was held that the two acts must be treated as one continuing act, and tliat the 
 notice was in time as lieing given " within a rea.sonal)le time" under s. 49 (12) 
 of the English Act. Fielding v. Corry (1898) 1 Q.H. 2()8. It will be noticed 
 that s. 49 (k) differs from tlie English section 49 (12) and that in Canada notice 
 miiKl be given on the next juridical or business day. 
 
 A notice that a cheque " has not yet been covered" is equivalent to " not 
 paid " and is a sufficient notice of dishonor; R. v. Hank of Montreal (1886) 1 
 Ex. C.R. 154. 
 
 A creditor who receives the cheriue of a third person must present it without 
 undue delay, and if dishonored give notice tliereof, otlierwise he will l)e taken 
 to have accepted tlie cheiiae in payment ; Sawyer v. Thomas (1890) 18 A.R. 
 129. 
 
 Address of Notice. S. 49 (4). Tlie provisions for addressing the notice of 
 dishonor to tlie place wiiere the bill is dated, unless some otlier address is 
 designated upon the bill, are not contained in the English Act. Tlie etlect of 
 the sub-section is to make a notice of disiionor mailed liy the holder in due 
 time to any party to the note at tlie place wiiere the note is dated 
 unless anotlier place bo designated, or mailed to tlie address of such 
 party, eiiuivaleiit to the delivery of such notice at the actual residence 
 or domicile of such party; t;osgrave v. Hoyle (1S81) S.C.R. 16,"), and 
 this is the rule oven if the notice is to be given to a person lesident 
 in the place where the note is payable ; Merchant's Rank of Halifax 
 V. McNutt (1883) 11 S.C.R. 126, and a notice addressed to a man who is dead 
 will be goixl though the holder may know of the death; Tosgrave v. Hoyle 
 (1881) 6 S.C.R. 165, which decision is confirmed by the concluding clause of s. 
 49 (4). A notice addressed to " Mr. .Tames Hell," Executor of the Last Will 
 "and Testament of Marian A. Bell, Perth," which notice reached tlie husband 
 of tlio endorser at her late residence was held to bo sufficient ; Merchant's 
 Bank v. Hell (1881) 29 (Jr. 413. An imitation by a notary of the endorser's 
 illegible signature is insufficient if the notice was not really addressed to or did 
 not reach him ; the liolder shouhl supiily the person giving notice of dishonor 
 withall the information he possesses as to the names of the parties ; Haillio v. 
 Dickson (1882) 7 A.R. 759 ; see 46 U.C.R. 167. The place to which the notice 
 is to be sent need not be written with the party's own hand ; it may be written 
 by anotlier person if that other person had in any manner any kintl of authority 
 from the party to write it. Where a jilace is designated the notice may be 
 addressed to such place, even though it is known not to be the proper address ; 
 Hay v. Burko (1889) 16 A.R. 463. 
 
 Waiver of Notice. .'Ht (b) A promise to pay a bill is an acknowledgment of 
 liability and is either evidence of the fact of notice or tiiat it iiad been waived. 
 But a statement by an endorser that ho would see the maker about it and a 
 subsequent statement that he had seen the maker who promised to jiay as soon 
 as he couhl with a recjucst not to "crowd the note" are not in themselves suf- 
 ficient evidence of waiver; Britton v. Milsom (1892) 19 A.R. 9(i. An intima- 
 tion by the party entitled to notice that ho is aware the bill will be dishoiio'-od 
 and that he will ultimately 1)0 looked to for payment is a sufficient waiver; 
 Coulcher v. Toppiii (1886)'2 T.L.R. 657. 
 
 Protest for Better Secvirity. S. 51 (5) A holder is not bound to protest for 
 better security and the act not only docs not give the liolder but excludes him 
 from recovering the costs of such a protest ; Re English Bank of the River 
 Plato (1893) 2 Ch. 438. 
 
 Liability of Endorsers. S. ,")5 (2) Endorsers are discharged if the liolder of a 
 note accepts a new delitor in the place of the maker ; Holliday v. .Jackson 
 (1894) 22 S.C.R. 479. 
 
 I 
 
BILLS OF EXCHANGE. 
 
 645 
 
 stranger Signing Bill. !S. .">«. "A proper endorHfriient <«ii only be imule l>y 
 oiif who has a liglit to the liill and who tlierehy tranNniits tlie rii^ht and also 
 intiiiM certain well-known and well defined lialiilities. Hnt it is perfeetly con- 
 sistent with tile principles of the law merchant that a i)er8on who writer an 
 indorsement with intent to hec^ome party to a hill shall he held — notwitliHtand- 
 ing lie has not and therefore cannot give any light to its contents — to Ik; sub- 
 ject as in a i|iicstion with xHlisdjiii III holders to all the lialiilities of a proper 
 endorser. Hut to holil tliat a stranger to the bill who wiites his name across 
 tlie back of it liefore it has passed out of the nands of the drawer thereby 
 becomes liable to the drawer, failing payment by the drawees, appears to mo 
 to be as inconsisti'nt with the ])rinci|iles of the law merchant as to hold tliat 
 there may be a drawer other than the original drawer and payee or that there 
 may be an acceptor other tiuin the drawee or one who accepts as his agent or 
 for'his honour." Per Lord Watson, Steele v. .McKinlay (18S(»).") Ai)p. ('as. 
 7i>4, 7H2. The Hills of Kxehango Act lias not altered the law laid down in 
 Steele v. McKinlay and a stranger who endorses a bill payable to the ilrawers, 
 before they have indorsed it, is not liable as indorser, since at the time he put 
 his name on it, it was not complete and regular on the face of it (as it lacked 
 the drawer's indorsement) nor on a contract of suretyship since the pro- 
 visions of The Statute of Frauds were not satisfied ; Jenkins v. C.'oomber 
 (ISitS) -2 <). H. KtS ; Singer v. KUiott ( 1S87) 4 T. L. H. 34, ry24. The endorsement 
 must in law be regardecl as made for tiie benefit of the subsecpient holders and 
 in an action by stn)se((ueiit holders it is immaterial when the transfer by the 
 payee was made ; Duthio v. Kssery (18(1.5) '2'2 A. K- IJtl. A stranger who places 
 his name on the back of a note is not liable as a maker or guarantor and is 
 discharged if notice of dishonor is not given ; Ayr American Plough ('o. v. 
 Wallace (18!)'2) "21 S.C.R. XHi; Lonilon and Southern Counties Co. v. Clamp 
 
 (1890) 7 T.L.R. 131; but ho i.s not nccessarilv an endorser; Wostacott v. 
 Smalley (1883) 1 C. & K. 124; Stagg v. Hro'derick (189.")) 12 T.L.R. 12. 
 If the note is not negotiable no liability is incurred ; Robertson v. Lonsdale 
 
 (1891) 21 O.R. ()(X>. In Robertson v. Davis (1897) 27 S.C.R. 574, Sedgwick J. 
 said oliilf.r "Under no circumstances can the pajee of a promissory note or tho 
 " drawer of a bill of exchange maintain an action against an indorser where 
 " the action i.s founded upon the instrument itself."' 
 
 For a collection of American authorities see 48 Cent. L..T. 311. 
 
 Where tho jiaj'ee has endorsed the note without recourse or where it appears 
 from the facts that the stranger indorser could not recover against the payee 
 as a prior endorser by reason of Ids having endorsed the note as a surety to the 
 payee or otherwise so that there would be no circuity of action, the payee in 
 his capacity as a subsetiuent indorsee may recover against the sti-anger indorser ; 
 Wilkinson v. Unwin (1881) 7 Q.H.I). 636; Pegg v. Howlett (1897) 28 O.R. 
 473; Holmes v. Durkee (1883) 1 C. & E. 23. 
 
 Measure of Damages. S. .57. The expense of a protest for better security 
 cannot be included in the damages recoverable on a bill ; Re Knglish Bank of 
 the River Plate (1893) 2 Ch. 438. Designating the expenses of noting as 
 " bank charges " is a sufficient description thereof in a special endorsement of 
 a writ in an action on the bill ; Dando v. Boden (1893) 1 Q. B. 318. 
 
 The English Act gives as damages when the bill has been dishonored abroad 
 re-exchange "in lieu of " the damages given by sub-sec. (a); Re Commercial 
 Bank of South Australia (1887) 36 Ch. I). 522, in which the method of com- 
 puting re-exchange is pointed out. The Canadian Law gives re-exchange " in 
 addition to " the damages allowed on an inland bill. 
 
 Renunciation of Bights. S. 61. The word "acceptor " which is equivalent 
 to " maker " (.see .sec. 88 (2) ) in s. 61 does not extend to his devisees. There- 
 fore a parol renunciation liy the holder of a note accompanied by delivery of 
 the note to tho devisee of the maker iloes not operate as a discharge of the 
 note ; Edwards v. Walters (1896) 2 Ch. 157. 
 
 A renunciation in writing must be a record of an absolute and unconditional 
 renunciation of rights and not a memorandum or note of the renunciation or 
 of an intention or desire to renounce ; Re Deorge, Francis v. Bruce (1890) 44 
 Ch. I). 627 ; Morgan v. Dodson (1884) 1 T.L.R. 23. The requirement of a 
 writing, when the bill is not delivered up, is a modification of thfe law merchant; 
 Edwards v. Walters (1896) 2 Ch. 157, 166. Where a receipt spoke of a balance 
 then remaining due by the acceptor the receipt did not amount to a renuncia- 
 tion of the rights of the holder ; Day v. Batchelor (1885) 1 T.L.R. 489. 
 
 K. I 
 
546 
 
 HILLS OF EXCHANQE. 
 
 o 
 
 r 
 
 X 
 
 r 
 
 ?3 
 
 Cancellation. S. fl2. Where a hanker is employed to receive payment of a 
 hill from the acceptor iind recciveH payment fioni him clogged with a oonditicm, 
 without a.MH(>iit to which the holder iH not entitled to retain the money paid, 
 the haiikei in not entitled to tntat such conditional payment an if it were an 
 abHoluio payment and to cancel the hill uk paid hefore lie has received the 
 asHcnt to the condition ; Hank of Scothmd v. I)ominion Hank (1891) A.C ">9'2. 
 
 Alteration of Bill. S. )t:<. An alteration in the date of a bill from 17th 
 July to "iTth iluly after the acceptance and without the acceptor's a.sHcnt dis- 
 chargcH him ; Kngel v. fStourton ( IHHD) .Y,\ J.F. o.lfl. The acceptor of a hill is 
 not under a duty to take precautions against fraudulent alterations after 
 acceptance; Scholfield v. Kail of Iion(leslH)rough (1S9(1) A.C. r)14. An altera- 
 tion is hindlng upon any |)arty to the liill who has assented to or authori/.ed it 
 and if a party is estopped hy negligence from saying he did not authorize the 
 alteration he will lie taken to have authorized it, per Lord Watson (1H9()) A.C. 
 54:1; Carritiuc V. Heaty (1W)7) 24 A.R. 302; sec .Sutton v. Hlakey (1S97) 13 
 T.L. R. 441. Where spaces were left in a hill and after acceptance the amount 
 thereof was fraudulently increased it was held that the acceptor had heeii 
 guiltv of no negligence in accepting the hill in that condition ; Scholfield v. 
 Karl of Londcshorough (l«9fi) A.C. ")14. 
 
 If till) alteration is not ' apparent " the holder may recover ujM)n the hill as 
 if it had not hceii altered, i.e. the hill is not void. \Vhere the name of another 
 
 CciW)!! hud heeii adfled as maker, not hy or witli the knowledge of the payees, 
 lit ajiparently hy some person wlio without fraud tiiought he had authority 
 to sign such name, the right to recover against the original maker was upheld ; 
 Cunniiigton v. Peterson (1898) 29 O.K. .34(i : hut tlie addition of another 
 maker will avoid the note as to non-assenting jiarties in the hands of a holder 
 who allows the alteration without the assent of the other parties ; Carriijue v. 
 Heaty (1897) 28 O.R. 170 ; 24 A.R. 8(»2. 
 
 Dciiman J., said in Leeds Hank v. Walker (1883) 11 Q.R.I). 84, 90, "By 
 " the word ' apparent " 1 do not think it is meant that the holder only should 
 " not have had the means of detecting the alteration. If the party sought to 
 " lie hound can at once discern hy some incongruity on the face of the note 
 " and jioiiit out to the holder that it is not what it was, that is to say, that it 
 " has heen materially and frandulentlv altered, I think the alteration is an 
 " ' apparent ' one, even if it is not an obvious one to all mankind," Hut this 
 statement was ohltcr and is not to he followed ; Cuiinington v. Peterson (1898) 
 29 O.R. .346. 
 
 Payer for Honor. S. (17 (6). A payer for honor cannot recover as damages 
 a commission for so doing in the absence of express contract ; Re English 
 Bank of the River Plate (1893) 2 Cli. 438. 
 
 Lost Instruments. >S. ()9. A person suing upon a lost note should oefore 
 action at the risk of costs, tender an indemnity to the maker ; Bantpie Jacques 
 Cartier v. Strachan (1809) 5 P. R. hW. Where the suit is upon the note it 
 should not he a condition of the indemnitv that a new note he given. Orton 
 v. Hrett (1899) 19 C.L.T. 117. The indcniiiity of the plaintiH' alone will not 
 he accepted. There .should ho a surety and each surety should make a proper 
 affidavit of justiticatioii. The suthciencv of tlie security may be referred by 
 the Court to the Master ; Orton v. Biett'(1899) 19 C.L.T. 117. 
 
 Conflict of Laws. S. 71 (2h). Although an indorsement of an inland bill may 
 be invalid by the law of tlie country where it is made, the acceptor is liable to 
 the indorsee if the indorsement is valid by the laws of Canada ; Lchcl v. Tucker 
 (1867) L.U. 3 QAi. 77 Hut this has reference to the rights and liabilities of 
 the payer only and not to the rights of other parties making ailverse claims to 
 the bill ; Alcock v. Smith (1892) 2 Ch. 2.38. 
 
 A hill drawn in France in French language in Engli.sh form payable in 
 English money in England, may, upon evidence, be treated as governed by 
 English law as regards endorsement ; Re Marseilles Extension Ry. and Land 
 Co. (1885) 1 T.L.R. 527. 
 
 Cheque. S. 72. Notwithstanding the provisions of s. 8 it is douljtful if a 
 cheque can be made not negotiable except hy crossing it, under the provisions 
 of ss. 75-81. A cheque payable to M. and crossed "account of M., National 
 Bank, Dublin," which crossing was insufficient under the English Act was 
 held to be negotiable ; National Bank v. Silke (1891) 1 Q.B. 435. 
 
 A cheque drawn to the order of a fictitious or non-existing person is payable 
 to bearer ; Clutton v. Attenborough (1897) A.C. 90. 
 
BILLS OF EXCHANGE. 
 
 547 
 
 A ilcK.'Uiiiunt " Pay A. 15. :? Provided tlu) rt'ceipt form at foot Iicreof 
 
 18 Hiuiied and dated," Ih not a cheijue ; Bavins v. London and .Soutli Western 
 Bank (I8!H)) l.TT.L.R. i4-26. 
 
 (Certifying a chu(iiio does not make it the equivalent of cash. It merely 
 gives the oheiiuo additional curren<:y ; (iadon v. Newfoundland .Savings Bank 
 (1899) A.C. 281. 
 
 A oheciue is regular upon its face although post dated ; Carpenter v. Street 
 (181M)) () r.L.R. 410. 
 
 iiperates as conditional payment and tiie payment relates l)ack to 
 the time when the eiio(iue is given ; rladley 
 
 A che((ue i 
 
 V. Hadloy (1898) "2 Ch. «80. 
 
 Countermanding Payment. A drawer of a che(|ue is not hound to counter- 
 maiid payment thereof l)eca\ise ho ia served witli a garnisiiee order, of tiie deht 
 paid therel)y, hefore it is cashed ; Klwell v. Jackson (1884) 1 C. & K. 362. 
 
 Crossed Cheques. >SS. 7.')-81. A che(iue crossed, generally, must l>epaid hy 
 the drawee to a Bank, and if crossed specially, to the Bank named in the cross- 
 ing ; unless the drawer uncrosses it hy writing hetween the transver.se lines 
 " j)av casli " and initials tlio change. A Bank i)aying a cros.sed ciiefjue otiier 
 tiiaii to a Bank will lie liable to the true owner for any damages he sustains. 
 The object of the crossing is to protect Banks who in good faith and witliout 
 negligence pay che(i\ies to otiier Banks from seeing to the genuineness of the 
 endorsements. A Bank paying an uncrossed clieijue cannot charge the drawer 
 therewitii if tjie en<lorsements are forged. A Bank whicii collects a cr()8.sed 
 che(iue and pays the money otiier than to a customer will l)e lial)le to tiie true 
 owner of the ciuMjue for damages for its conversion ; Klienwort v. Comptoir 
 National d'Kscomptc dc Pai'is (1894) 2 Q.B. lo7, but if it pays the money or 
 gives credit in its books to a customer (although the CHitomer's account may 
 be overdrawn) it will not l)e liable, even tliougli the customer lias no title to 
 tlie che(iue ; Clarke v. London and County Banking Co. (1897) 1 Q.B. M2. 
 But a branch of a Bank paying tlie dieiiuc to anotlicr l)ranc]i cannot be treated 
 as paying the che(|ue to a Bank, and if tiie l)rancli from wiiich it iuis been 
 received paid the mone^' otiier than to a customer the Bank would lie lial)le to 
 the true owner for conversion ; Lacave v. Credit Lyonnais (1897) 1 (^.B. 148. 
 
 A customer is one wiio lias an account at the Bank ; Matthews v. Brown 
 (1894) lOT.L.R. 386; 03 L.J.Q.B. 494, not one wlio comes to tlie Bank and 
 employs it to collect a cheque for him; Lacave v. Credit Lyonnais (1897) 1 
 Q.B. 148. 
 
 It would seem that, notwitlistanding s. 8, a chcijue cannot be made non- 
 negotiable except by crossing it ; National Bank v. Silke (1891) 1 Q.B. 43o. 
 
 Under s. 81 a person who receives a checjue endorsed hy a member of a firm, 
 with notice that it is in fraud of liis partner, is liable therefor to his defrauded 
 partner ; Fisher v. Roberts (1890) 6 T.L.R. 354. 
 
 Bankers who received six cheques drawn upon other bankers from the plain- 
 tilTs traveller, endorsed l)j' him without authority in tiie plaiiitifFs name, 
 " per yiro,'" were held lial)le to the plaintitf for the proceeds of tlie clic(]ue8 
 whicli tliey had placed to the credit of the traveller who had absconded, be- 
 cause tliey hail not received payment "without negligence " within s. 81 ; 
 Bissell v. Fox (1886) 53 L.T. 193. 
 
 Should a crossed checjue come to the hands of a payee and be afterwards 
 paid i)j' the Bank to a Bank, or if crossed specially, to tlic Bank to whicli it is 
 crossed, tlie drawer of the clieiiue will be entitled to credit from tlie payee for 
 the amount thereof, though the hitter's endui^sment may have been forged. 
 S. 79. 
 
 Promissory Notes. S. 82. A note which provides that " the title and right 
 '■ to possession of the property for which this note is given shall remain in 
 "(the payee) until this note is paid" is not an unconditional promise, because 
 it imports that the purchaser is not compellalile to pay when the day of pay- 
 ment arrives, unless he at the same time gets the property witli a goo<l title ; 
 Dominion Bank v. Wiggins (1894) 21 A.R. 275. 
 
 The provisions of sub. -sec. 3 of s. 82 import that if the document contains 
 something more than a pledge of collateral security with authority to sell or 
 dispose thereof, it will not be valid as a promissory note, and therefore a pro- 
 vision in a note that " No time given to, or security taken from, or composition 
 or arrangement entered into with either party hereto shall prejudice the rights 
 of the holder to proceed against any other party " is not valid os a note ; 
 Kirkwood v. Smith (1896) 1 Q.B, 582. See also Robertson v. l)avi.s (1897) 27 
 S.CR. 571. 
 
648 
 
 BILLS OF EXCHANGE. 
 
 i 
 
 c 
 
 r 
 
 i 
 
 03 
 5C3 
 
 A note may be a promissory note although there is no payee ; Daun v. Slier- 
 woofl(I895) 11 T.L.R. 211. 
 
 Note Payable on Demand. S. 85. An overdue note endorsed by a stranger 
 as further Kceiu'it;' is a note payable on demand, and may he treated as a con- 
 tinuing security, though tiiere was no binding agreement to give time ; Car- 
 ri(iue V. Beaty (1896) 28 0. R. 17"). 
 
 Where a note payable on demand as a security was transferred to a bona fde 
 holder f'>r value, after the payee had taken a mortgage for the same debt and had 
 transferred the mortgage to a third person, the maker was held to be, never- 
 theless, responsible to the holder of the note. If a negotiable instrument 
 remains current, even though it has been paid, there is nothing to prevent a 
 person to whom it has been endorsed for value, without knowledge that it has 
 been paid, from suing ; filasscoek v. Balls (1889) 2-t Q. B. D. 13. 
 
 A note payable on "demand and not delivered as a collateral or continuing 
 security is "at maturity" immediately, notwithstanding no demand has been 
 made ;"Re George, Francis v. Bruce (1890) 44 Ch. D. 627. 
 
 Presentment of Note for Fajrment. S. 86. It is still necessary in order to 
 charge * he endorse, that a note should be presented for payment at the par- 
 ticular jjlaco it is paj'able on the daj' it falls rlue ; but to charge the maker it 
 is unnecessary that it should be so presented, but it may be presented at any 
 time before action brought, and an action may be brought upon it against the 
 maker, even without any such presentation, at the risK of the plaintiff being 
 obliged to pay the costs in case the maker shews that he had the monej- at the 
 particular place to answer the note when it fell due, and that he kept it there 
 waiting for 't to be called for by the holder of the note ; Merchants' Bank of 
 Canada V. Heiider-son (1897) 28 0. R. 360. 
 
 Notes Assimilated with Bills. S. 88. The effect of s. 88, combined with s. 8 
 is to make a note payable to A. B. payable to A. B. or order, and therefore 
 negotiable. Tliis alters the law as it was before the act ; Edwards v. Walters 
 (1896) 2 Ch. 157. But a note signed "A. B., Manager of C. Co." may be 
 shewn to be the note of the Company; Fairehild v. Ferguson (1892) 21 S. C. 
 R. 484. 
 
 Application of Common Law. .S. 98. S. 98, though in the original bill, was 
 not enacted until 1891. It is substantially similar to s. 97 (2) of the Imperial 
 Act. The section was applied in Re (iillesrie (1885) 16 Q. B. D. 702; 18 Q. 
 B. 1). 286, and a holder of a dishonored foreign bill was held, notwithstanding 
 8. 57, to be entitled to recover such unlicjuidated damages as he had sustained 
 by the dishonor, being in that case a sum, sul)Stituted for re-exchange, which 
 the drawer was liable by the foreign law to pay the holder of the bill. The 
 section was held not to apply to a renunciation by the holder, such being 
 governed by s. 62 ; Kdwarda v. Walters (1896) 2 Ch. 157, nor to the expenses 
 of an unnecessary protest, e.g. one for better security ; Re English Ba'ik of 
 the River Plate (1893) 2 Ch. 438. 
 
 Suing upon Consideration. It is necessary for a creditor who sues upon 
 the original cousrleration for a bill to have the bill in his hands at the com- 
 mencement of the acti<m ; if the bill is tiien outstanding in the hands of a 
 third party it is a good defence, although he obtains possession of it before 
 trial ; Davis v. Reilly (1898) 3 Q. B. 1. 
 
 Wben Right of Action on Bill Complete. A right of action upon a bill is not 
 complete until the expiration of the last day of grace ; Edgar v. Magee (1882) 
 1 0. R. 187 ; Kennedy v. Thomas (1894) 2 Q. B. 759. The plaintids must be 
 the lawful holders when the action is brought ; Nash v. De Freville (1899) 15 
 T. L. R. 264. 
 
549 
 
 53 VICTORIA (DOMINION). 
 
 CHAPTER 31. 
 
 Au Act respecting Banks and Banking. 
 
 (Assented to 16th May, 1890.) 
 
 HER MAJESTY by and with the advice and consent of the 
 Senate and House of Commons of Canada, enacts as 
 follows : 
 
 SHOUT TITLE. 
 
 1. This Act may be cited as " The Bank Act." Short title. 
 
 INTERPRETATION. 
 
 3. In this Act, unless the context otherwise requires, — Interpreta- 
 tion, 
 (a) The expression "the bank" means any bank to which "The bank." 
 this Act applies ; 
 
 (6) The expression " Treasury Board " means the Board 
 provided for by section nine of chapter twenty-eight of the 
 Revised Statutes of Canada, or any Act in amendment thereof 
 or substitution therefor ; 
 
 (c) The expression "goods, wares and merchandise" includes, 
 in addition to the things usually understood thereby, timber, 
 deals, boards, staves, saw-logs and other lumber, petroleum, 
 crude oil and all agricultural produce and other articles of 
 commerce ; 
 
 {d) The expression " warehouse receipt " means any receipt 
 given by any person for any goods, wares or mei'cliandise, in 
 his actual, visible and continued possession, as bailee thereof, 
 in good faith and not as of his own property, and includes 
 receipts given by any person who is the owner or keeper of a 
 harbor, cove, pond, wharf, yard, warehouse, shed/sTorehouse 
 or other place for the storage of goods, wares or merchandise, 
 for goods, wares and merchandise d livered to him as bailee 
 and actually in the place, or in one or more of the places 
 owned or kept by him, whether such person is engaged in 
 other business or not ; 
 
 (e) The expression " bill of lading " includes all receipts for 
 goods, wares or merchandise, accompanied by an undertaking 
 to transport the same from the place where they were received 
 to some other place, whether by land or water, or partly by 
 land and partly by water, and by any mode of carriage what- 
 ever. 
 
 "Treasury 
 Board." 
 
 " GoodB, 
 wares and 
 merchandise." 
 
 ' ' Warehouse 
 receipt." 
 
 r .1 
 
 (y^^ 
 
 " BUI of 
 lading.' 
 
550 
 
 Chap. 31. 
 
 BANKS AND BANKING. 
 
 Sec. 2 (/■). 
 
 "Manufac- 
 turer." 
 
 (/) The word " manufactur .r " includes maltsters, distillers, 
 brewers, refiners and producers of petroleum, tanners, curers, 
 packers, canners of meat, pork, fish, fruit or vegetables, and 
 any person who produces by hand, art, process or mechanical 
 means any goods, wares or merchandise. 
 
 BUSINESS AND POWERS OF THE BANK. 
 
 c 
 
 2! 
 
 r' 
 if 
 
 E 
 
 r 
 do 
 
 50 
 
 Branchea and 
 agencies. 
 
 General 
 powers of 
 bank. 
 
 Certain busi- 
 ness may nut 
 be transacted 
 by the bank. 
 
 Bank to have 
 lien on debt- 
 or's share;. 
 
 Sain of such 
 shares. 
 
 Notice. 
 
 Transfer in 
 case of sale. 
 
 64. The bank may open branches, agencies and offices, and 
 may engage in and carry on business as a dealer in gold and 
 silver coin and bullion, and ii may deal in, discount and lend 
 money and make advances upon the security of, and may take 
 as collateral security for any loan made by it, bills of exchange, 
 promissory notes iind other negotiable securities, or the stock, 
 bonds, debentures and obligations of municipal and other cor- 
 porations, whether secured by mortgage or otherwise, or 
 Dominion, Provincial, British, foreign and other public securi- 
 ties, and it may engage in a,nd carry on such business generally 
 as appertains to the business of banking; bufc.except as author- 
 ized by this Act, it shall not, either directly or indirectly, deal 
 in the buj'ing, or selling, or bartering of goods, wares and 
 merchandise, or engage or be engaged in any trade or business 
 whatsoever ; and it shall not, either directly or indirectly, 
 purchase, or deal in, or lend money, or make advances upon 
 the security or pledge of any share of its own capital stock or 
 the capital stock of any bank ; and it shall not, either directly 
 or indirectly, lend money or make advances upon the security, 
 mortgage or hyputheeation of any land, tenements t immov- 
 able property, or of any ships or other vessels, or upon the 
 security of any goods, wares and merchandise. 
 
 65. The bank shall have a privileged lien, for any debt or 
 liability for any debt to the bank, on the shares of its own 
 capital stock and on any unpaid dividends of the debtor or 
 person liable, and may decline to allow any transfer of the 
 shares of such debtor or person until such .' jbt is paid ; and 
 the bank shall, >vithin twelve months after such debt has 
 accrued and become payable, sell .such shares, and notice shall 
 be given to the holder thereof of the intention of the bank to 
 sell the same, by mailing such notice in the post office to the 
 last known address of such holder, at least thirty days prior 
 to such .sale ; and upon such .sale being made the president, 
 vice-president, manager or cashier shall execute a transfer of 
 such shares to the purchaser thereof in the usual transfer book 
 of the bank, which transfer shall vest in such purchaser all the 
 rights in or to such shares which were possessed by the holder 
 thereof, with the same obligation of warranty on his part as if 
 he were the vendor thereof, but without any warranty from 
 the bank or by the officer of the bank executing such 
 transfer. 
 
Sec. 70. 
 
 BANKS AND BANKING. 
 
 Chap. 31. 
 
 551 
 
 
 66. The stock, bonds, debentures or securities, acquired and Collateral se- 
 held by the bank as collateral security, may, in case of default b^"*^iiMfy 
 to pay the debt, for securing which they were so acquired and dealt with, 
 held, be dealt with, sold and conveyed either in like manner, 
 
 and subject to the same restrictions as are herein provided in 
 respect of stock of the bank on which it has acquired a lien 
 under this Act, or in like manner as anl subject to the restric- 
 tions under which a private individual might in like circum- 
 stances deal with, sell and convey the same, but without 
 obligation to sell the same within twelve months ; 
 
 2. The right "^o to deal with and dispose of such stock, bonds, Right to doao 
 debentures or securities in manner aforesaid may be waived ™^^^ 
 or varied by any agreement between the bank aud the owner 
 of such stock, bonds, debentures or securities, made at the time 
 such debt was incurred, or if the time of payment of such debt 
 has been extended, then by an agreement made at the time of 
 such extension. 
 
 67. The bank may acquire and hold real and immovabl^Real estate 
 property for its actual use and occupation and the marjage- ["Jp"''*"'''*" 
 ment of its business, and may sell or dispose of the same, and 
 acquire other property in its stead for the same purpose. 
 
 / 
 
 /- 
 
 68. The bank may take, liold and dispose of mortgages and Mortgages as 
 hypotheques upon real or personal, immovable or movable geou'Jitv*' 
 property, by way of additional security for debts contracted 
 to the bank in the course ot its business ; and the rights, 
 powers and privileges which the bank is by this Act declared 
 to have or to have had in respect of real or immovable pro- 
 perty mortgaged to it, shall be held and possessed by it in 
 respect of any personal or movable property which is mort- 
 gaged or hypothecated to it. 
 
 Vy 
 
 y 
 
 >■■ 
 
 69. The bank may purcl^ase any lands or real or immov- Purchase of 
 able property offered for sale under execution, or in insolvency, '»n<J under 
 or under the order or decree of a court, as belonging to any *"' ' ' 
 debtor to the bank, or offered for sale by a mortgagee or other 
 encumbrancer having priority over a mortgage or other 
 encumbrance held by the bank or offered for sale by the bank 
 under a power of sale given to it for that purpose, in case, in 
 which, under similar circumstances, an individual could so 
 purchase, without any restriction as to the value of the pro- 
 perty which it may so purchase, and may acijuiro a title 
 thereto as any individual purchasing at sheriffs sale, or under 
 a power of sale, in like circumstances, could do, and may take, 
 have, hold and dispose of the same at pleasure. 
 
 TO. The bank may acquire and hold an absolute title in or Absolute 
 to real or immovable pi'operty mortgaged to it as security for «n»y.be 
 a debt due or owing to it, either by obtaining a relejise of the 
 
 f:r» 
 
552 
 
 Chap. 31. 
 
 BANKS AND BANKING, 
 
 Sec. 70. 
 
 i 
 
 
 
 equity of redemption in the mortgaged property, or by procur- 
 ing a foreclosure, or by other means whereby, as between 
 individuals, an equity of redemption can, by law, be barred, 
 Proviso -sale and may purchase and acquire any prior mortgage or charge 
 of property bo on such property ; provided always, that no bank shall hold 
 acquired g^^^y ^gg^j ^j. immovable property, howsoever acquired, except 
 such as is required for its own use, or for any period exceed- 
 ing seven years from the date of the acquisition thereof. 
 
 Title to lands 
 no acquired ; 
 power of sale, 
 «to. 
 
 As to ad- 
 vanses for 
 building 
 ships. 
 
 71. Nothing in any charter. Act or law shall be construed 
 as ever having prevented or as preventing the bank from 
 acquiring and holding an absolute title to and in any such 
 mortgaged real or immovable property, whatever the value 
 thereof is, or from exercising or acting upon any power of sale 
 contained in any mortgage given to it or held by it, authoriz- 
 ing or enabling it to sell or convey awsiv any property so 
 mortgaged. 
 
 73. Every bank advancing money in aid of the building of 
 any ship or vessel shall have the same right of acquiring and 
 holding security upon such ship or vei^sel, while building and 
 when completed, either by way of mortgage, hypotheque, 
 hypothecation, privilege, o lien thereon, or purchase or trans- 
 fer thereof, as individuals have in the Province wherein such 
 ship or vessel is being built, and for that purpose may avail 
 itself of all such rights and means of obtaining and enforcing 
 such security, and shall be subject to all such obligations, 
 limitations and conditions as are, by the law of such Province, 
 conferred or imposed upon individuals making such advances. 
 
 73. The bank may acquire and hold ap y warehouse leceipt 
 or bill of lading as collateral security fo^tlie payment of any 
 debt incurred in its favor in the course of its banking busi- 
 ness ; and the warehouse receipt or bill of lading so acquired 
 shall vest in the bank, from the dtjte of the acquisition thereof, 
 all the right and title of the previous holder or owner thereof, 
 or of the person from whom such goods, wares and merchan- 
 dise were received or acquired by the bank, if the warehouse 
 receipt or bill of lading is made directly in favor of the bank, 
 instead of to the previous holder or owner of such goods, 
 wares and merchandise. 
 
 2. If the previous holder of such warehouse receipt or bill 
 of lading is the agent of the owner of the goods, wares and 
 merchandise mentioned therein, the bank shall be vested with 
 all the right and title of the owner thereof, subject to his right 
 to have the same re -transferred to him, if the debt, as security 
 for which they were held by the bank, is paid ; 
 
 Interpretation 3. ii, this section the expression " agent " means any person 
 o ' Agent." jj^trjjgted with the possession of goods, wares and merchan- 
 dise, or to whom the same are consigned, or who is possessed 
 of any bill of lading, receipt, order or other document used in 
 
 Warehouse 
 receipts may 
 be taken as 
 collateral 
 security. 
 
 When pre- 
 vious holder 
 is an agent. 
 
Sec. 75 (3). 
 
 BANKS AND BANKING, 
 
 Chap. 31. 
 
 the course of business as proof of the possession or control of 
 goods, wares and merchandise, or authorizing or purporting to 
 authorize, eitlier by indorsement or by delivery, the possessor 
 of such document to transfer or receive the goods, wares and 
 merchandize thereby represented ; and such person shall be 
 neemed the possessor of such goods, wares and merchandise, 
 bill of lading, receipt, oider, or other document as aforesaid, 
 as well as if the same are held by any person for him or sub- 
 ject to his control as if he is in actual possession thereof 
 
 74. The bank may lend money to any person engaged in 
 business as a wholesale manufacturer of any goods, wares and 
 merchandise, upon the security of the goods, wares and mer- 
 chandise manufactured by him or procured for such manufac- 
 ture. 
 
 2. The bank may also lend money to any wholesale pur - 
 ■ chaser or shipper of products of agriculture, the forest am 
 nnne, or the sea, lakes and rivers, or to any wholesale pur- 
 <;hrtser or shipper of live stock or dead stock, and the products 
 thereof, upon the security -of suih products, or of such live 
 stock or dead stock, and the products thereof. 
 
 8. Such security may be given by the owner and may be 
 taken in the form set forth in Schedule C to this Act, or to 
 the like effect ; and by virtue of such security, the bank shall 
 acquire the same rights and powers in respect to the goods, 
 wares and merchandise, stock or products covered thereby, as 
 if it had acquired tiie same by virtue of a warehouse receipt. 
 
 Loans to 
 wholesale 
 maiiufac- 
 turers. 
 
 Loans to cer- 
 tain wholenale ^ 
 purohaaers or V ^ ' 
 shippers. .«4'\ 
 
 Form of 
 security. 
 
 A' 
 
 75. The bank shall not acquire or hold any warehouse 
 receipt or bill of lading or security under the next preceding 
 section to secure the payment of any bill, note or debt, unless 
 such bill, note or debt is negotiated or contracted atthe time 
 of the acquisition thereof by the bank, or upon the written 
 promise or ag reement that such warehouse r eceipFbr bill ot 
 jadipf fTtr s?y Mvnty'woind~Dg^gr^^ but such~lSiIT, 
 
 note or debt may be renewed, or the time for the payment 
 thereof extended, without affecting any such security. 
 
 When such Sf ■i' 
 
 security may ^ AT 
 
 be acquired. ^/^J^ 
 
 \ 
 
 '/ 
 
 2. The bank may, on shipment of any goods, wares and Exohangre of ( 
 
 merchandise for which it holds a warehouse receipt, or security ^gjp""** 
 as aforesaid, surrender such receipt or security and receive a bill of lading 
 bill of lading in exchange therefor, or, on the receipt of any """^ v"** 
 goods, wares and merchandise for which it holds a bill of 
 lading or security, as aforesaid, it may sun-ender such bill of 
 lading or security, store such goods, wares and merchandise, 
 and take a warehouse receipt therefor, or may ship them, or 
 part of them, and take another bill of lading therefor. 
 
 3. Every one is guilty of a misdemeanor and liable to im- Penalty for 
 prisonment for a term not exceeding two years who wiFuUy rtat'ementsf" 
 makes any false statement in any warehouse receipt, bill of 
 lading or security, as aforesaid. 
 
 / 
 
 / 
 
554 
 
 Chap. 31. 
 
 BANKS AND BANKING. 
 
 Sec. 75 (4). 
 
 Penalty for 
 alienating 
 goods BO 
 secured. 
 
 i 
 
 r 
 if 
 
 i 
 
 3 
 
 Aa to goods 
 manufaotured 
 from articles 
 pledged. 
 
 4. Every one is guilty of a misdemeanor and liable to im- 
 prisonment for a term not exceeding two years who, having 
 possession or control of any goods, wares and merchandise 
 covered by any warehouse receipt, bill of lading, or security 
 as aforesaid, and having knowledge of such receipt, bill of 
 lading or security, and without consent of the bank, in writ- 
 ing and before the advance, bill, note or debt thereby secured 
 has been fully paid, wilfully alienates or parts with any such 
 goods, wares or merchandise, or wilfully withholds from the 
 bank possession thereof upon demand after default in pay- 
 ment of such advance, bill, note or debt. 
 
 76. If goods, wares and mercnandise are manufactured or 
 produced from the goods, wares and merchandise, or any of 
 them, included in or covered by any warehouse receipt, or 
 security given under section 74 of this Act, while so covered, 
 the bank holding such warehouse receipt or security shall 
 hold or continue to hold such goods, wares and merchandise, 
 during the process and after the completion of such manufac- 
 ture or production, with the same riglit and title and for the 
 same purposes and upon the same conditions as it held or 
 could have held the original goods, wares and merchandise. 
 
 71. All advances made on the security of any bill of lading 
 or warehouse receipt, or security given under section 74 of 
 this Act, shall give to the bank making such advances a claim 
 for the repayment of such advances on the goods, wares and 
 merchandise therein mentioned, or into which they have been 
 converted, prior to and by preference over the claim of any 
 unpaid vendor ; but such preference shall not be given over 
 the claim of any unpaid vendor who had a lien upon such 
 goods, wares and merchandise at the time of the acquisition 
 ■by the bank of such warehouse receipt, bill of lading or 
 security, unless the same was acquired without knowledge oa 
 the part of the bank of such lien. 
 
 /Sale of goods 78. In the event of the non-payment at maturity of any 
 debt secured by a warehouse raceipt or bill of lading, or 
 security given under section 74 of this Act, the bank may sell 
 the goods, wares and merchandise mentioned therein, or so 
 much thereof as will suffice to pay such debt with interest and 
 expenses, returning the overplus, if any, to the person from 
 whom such warehouse receipt, or bill of lading, or security, or 
 the goods, wares and merchandise mentioned therein, as the 
 case may be, were acquired ; but such power of sale shall be 
 subject to the following provisions, namely : 
 
 2. No sale without the consent in writing of the owner of 
 any timber, boards, deals, staves, saw-logs or other lumber, 
 shall be made under this Act until notice of the time and 
 place of such sale has been given by a registered letter, mailed 
 in the post office to the last known address of the pledger 
 
 Prior claim 
 of the bank 
 over unpaid 
 ■vendor. 
 
 on non-pay- 
 ment of debt. 
 
 Notice to be 
 g^ven before 
 sale of goods 
 pledged. 
 
Sched. 
 
 BANKS AND BANKING. 
 
 Chap. 31. 
 
 655 
 
 thereof, at least thirty days prior to the sale thereof ; and no 
 goods, wares and merchandise, other than timber, boards, deals, 
 staves, saw-logs or other lumber, shall be sold by the bank 
 under this Act without the consent of the owner, until notice 
 of the time and place of sale has been given by a registered 
 letter, mailed in the post office to the last known address of 
 the pledger thereof, at least ten days prior to the sale thereof. 
 
 3. Every such sale of any article mentioned in this section, gaie by 
 without the consent of the owner, shall be made by public auction after 
 auction, after a notice thereof by advei'tisement, stating the °° "'*■ 
 time and place thereof, in at least two newspapers published 
 in or nearest to the place where the sale is to be made ; and if 
 such sale is in the Province of Quebec, then at least one of 
 such newspapers shall be a newspaper published in the Eng- 
 lish language, and one other such newspaper shall be a news- 
 paper published in the French language. 
 
 79. Every bank which violates any provision contained in Penalty for 
 any of the sections numbered 64 to 78 (both inclusive) shall oontr»Te»- 
 incur for each violation thereof a penalty not exceeding five 
 hundred dollars. 
 
 SCHEDULE C. 
 
 Form of Security TTnder Section Seventy-Four. 
 
 In consitlenition of an advnnco of dollars, niailo by the (name 
 
 of bank) to A. B., for which tlie said hank holds the following bills or notes 
 (describe fully the bills or notes hehl, if anj',) the goods, wares and merchan- 
 dise mentioned below are hereby assigned to the said bank as security for the 
 payment, on or before tiie day of of the said advance, together 
 
 with interest thereon at the rate of per cent per annum from the 
 
 day of (or, of the said ))ills ami notes, or renewals thereof, or substitu- 
 
 tions therefor, and interest thereon, or as the case may be. ) 
 
 This security is given under tlie provisions of section seventy-four of "The 
 Bank Act " and is subject to all the provisions of the said Act. 
 
 The said goods, wares and merchandise are now owned by and 
 
 and are now in possession, and are free from any mortgage, lien 
 
 or charge thereon, (or as the case may be) and are in (place or places where 
 goods are) and are the following ; particular description of goods assigned.) 
 
 Dated at 18 
 
556 
 
 BANKS AND BANKING. 
 
 NOTES. 
 
 o 
 
 c 
 
 •z 
 
 < 
 
 re 
 
 ^' 
 
 5 
 
 Principle of Act. The principle of the Canadian Banking system is to give 
 the greatest possible security to the public, and to provi(re the best available 
 means to advance the commercial interests of the Country. To effectuate this, 
 l)anks are confined to the safest lines of investments. They are forbidden to 
 tie up their assets by lending on real estate or by venturing in trade. The 
 prevailing idea is to sujjply money for the purpose of bringing goods to market, 
 and to enable this to be done, the money must be easily available and the 
 bank's assets of the kind that can be most easily li(iuidated. Lending u])on 
 goods except on their waj' to market as on goods in transit or in a warehouse 
 or in course of manufacture is prohiliited. Securities upon real estate or goods 
 can only be taken for past debts contrui'ted in the ordinary course of business. 
 An apparent exception is created by allowing loans to be made u))on stocks, 
 bonds, debentures and obligations of corporations, but sr.ch securities are such 
 as are usually of a liquid character, l)eing readily saleable in the open market. 
 A bank's circulation performs one of the most important functions in the 
 supply of the necessary currency of the country. The notes of a bank when 
 required are part of the currency. When not re(]uired their idleness does not 
 diminisii the resources of the country. 
 
 Constitutionality. The Bank Act is within the constitutional competence of 
 t!ie Dominion I'arliament ; B. N. A. Act, s. 91 (15) The provisions for taking 
 security l)y way of warehouse receipts, etc., over-ride, where applicable, the 
 provincial enactments relating to Chattel mortgages; Tennant v. Union Bank 
 of Canada (1894) A. C. 31, see ante pp. ").")-56. 
 
 Branches. The i)osition of l)ranch l)anks is that in principle and in fact they are 
 agencies of one principal banking corporation , notwithstanding that they may 
 be regarded as distinct for special j)ui'po8es e. g. that of estimating the time at 
 which notice of dishonor should be given, or of entitling a bank to refuse pay- 
 ment of a customer's cheque except at that branch where he keeps his account ; 
 Prince v. Oriental Bank Corporation (1878) ."} App. Cas. 323. 
 
 A bank may set off' a debt due by a customer at one branch against a balance 
 in his favor at another branch; Oarnet v McKewan (1873) L.R. 8 Ex. 10, see 
 also Henderson v. Bank of Hamilton (1894) -io 0. R. 641, 22 A. R. 414. 
 
 POWEBS OF A BANK. 
 
 Negotiable Securities. A bank is authorized to deal in all kinds of negotiable 
 secmitics. A negotiable instrument payable to bearer is one which by the 
 custom of trade passes from hand ty hand by delivery and the holder of which 
 fo!' the time being if he is a bona Jide hohlcr for value without notice, has a 
 good title notwithstanding any defect of title in the person from whom he took 
 It; Simmons V. London Joint Stock Bank (1891) 1 Ch. 270, 294, (1892) A. C. 201. 
 When payable to order it has the .same characteristics, but must be endorsed by 
 the person t ■ ' whose order it is payable. The securities of foreign governments 
 have fre(iuciiily been held to be negotiable upon evidence being given showing 
 a custom to treat them as such in the market where the same were negotiated. 
 When the effect, not of the instrument transferred, but of the transfer of that 
 instrument in this country, is the thing in controversy, the question is not 
 what is the usage in the country whence the instrument comes, but what is the 
 usage in the country where it is passed ; Lang v. Smyth (1831) 7 Bing. 284, 33 
 R.R. 462. 
 
 Accordingly the following instrumevt* ; have been held to be negotiable in 
 addition to bills of exchange and prom j'-y notes : — 
 
 Exchequer bills, i. e. a bill issued by the English Government payable 
 to or order for a debt due from the Government ; Wookey v. Pole 
 
 (1820) 4 B. & Aid. 1, 22 R.R. 594. 
 
 Prussian Bonds, whereby the King of Prussia declared himself and his 
 successors bound to every person who should f(jr the time being be the holders 
 of the bonds for the payment of the principal and interest in a certain manner; 
 Gorgier v. Mieville (1824) 3 B. & C. ^ j, 27 R.R. 290. 
 
BANKS AND BANKING, 
 
 M7 
 
 Bonds of a foreign ftovernment; Alty-(«en. v. Bouwens (1838) 4M. &W. 171. 
 
 Scrip iRsiicd Uy the Russian Oovernnient acknowledging the first instalment 
 of 20 per cent. uiK)n £1(K) stock, and exjjressed to entitle the hearer on paying 
 the remaining instalments to receive a Ixmd from the (iovernment; Ooodwin v. 
 Robarts (lS7t)) I Ajjp. Caa. 470. 
 
 Scrip certificates issued by a Banking Company purporting to entitle the 
 bearer upon pa3'ment of certain instalments to be registcreil as holder of ten 
 shares ; Rumhall v. Metropolitan Hank (1S77) 2 Q. B. U. Ht4. 
 
 Debenture bonds issued by a Company by which it bound itself to ])ay tiie 
 bearer; Re Imperial Land Co. Kx parte Colborne (ISdl) L. R. 11 P](|. 478; 
 Bechuanalan<l Exploration Co. v. London Trading Bank (1898) "iQ. B. 6i)8; and 
 by R.S.O. c. 11$) 8. 38 debentures are expressly made transferable see iiij'ra ; 
 Bank of Toronto v. Cobourg Ry Co. (1884) 7 O. R. 1. 
 
 Municipal debentures are negotiable; R. S. O. c. "i'iS .ss. 429-436, and are valid 
 in the hands of bona fide holders for value without notice of a defect in the 
 prior holder's title; Trust and Loan Co. v. City of Hamilton (18.58) 7 '". P. 98; 
 Anglin v. Township of Kingston (IS.W) Iti U. C. R. 121; Crawford v Town of 
 Cobourg (18(>2) 21 U. C. R. 113. 
 
 Cedulas, i. e. bonds of the Buenos Ayres Land Mortgage Bank jiayablo to 
 bearer ; Simmons v. London .Joint Stock Bank (1891) 1 Ch. 270, (1892) A. C. 
 201. 
 
 Bonds of an American Railroad Conii)any stated to be secured by mortgage ; 
 Venablcs v. Baring (1892) 3Ch. r)27. 
 
 Certificates for shares in a company, having endorsed thereon a blank 
 transfer and power of attorney, where it is shown by evidence tiiat such l)lank 
 transfers readily pass on the market from hn'id to hand by delivery oidy, until 
 the documents reach the hands of some liolder wlio desires to be registered ; 
 Colonial Bank v. Hepworth (1887) 3(1 Ch. I). 30 ; Colonial Bank v. Cadv (1890) 
 15 App. Cas. 207 ; Smith v. Rogers (1899) 30 O. R. 2j-)0 ; Hone v. BoylV (1891) 
 27 L. R. Ir. 137, 1.51 ; Waterhouse v. Bank of Ireland (1892) 29 L. R. Ir. at p. 
 394 ; but see Fox v. Martin (1895) 64 L. J. Ch. 473. 
 
 Care must be taken in lending upon securities even if negotiable where an 
 instrument in blank, e.g., a blank transfer of stock executed by a third person 
 is the security. The purcha.ser will not have the right (unless a mercantile 
 usage is proved) to fill in the l)lank for purposes foreign to the original contract, 
 and in the absence of proper eiKjuirN' he will be limited to the rights of the 
 party from whom he received it, and cannot claim the benefit of being a pur- 
 chaser for value without notice ; France v. Clark (1884) 20 Ch. 1). 257. 
 
 Instruments not negotiable. A post office order is not negotiable ; Fine Art 
 Society v. Union Bank (1880) 17 Q.B.D. 705. Wliere bonds of the Neaixilitan 
 Government were accompanied by a document called a " bordereau " annexed 
 to which were a series of coupons, arid both tiie bordereau and coupons referred 
 to the bonds, and were never sold in the London market without the bonds, the 
 bordereau and coupons were held to be not negotiable ; Lang v. Smyth (1831) 
 7 Bing. 284, 33R.R. 462. 
 
 A bond pavable to a particular person or his executors is not negotiable ; 
 Glyn v. Baker (1811) 3 East 509, 12 R.R. 414. 
 
 Though a foreign bond may be negotiable by the law of the country of its 
 issue, it is not negotiable here in the absence of any evidence of a custom of 
 merchants in this country to treat it as negotiable ; Picker v. London and 
 CoiHity Banking Co. (1887) 18 Q.B.I). 515. A letter of credit issue<l by a 
 Government to a contractor ccmditional upon money being voted by the legis- 
 lature is not a negotiable security upon which a bank is autliorized to len<l ; 
 Jac(iues Cartier Bank v. Reg. (1895) 25 S.C.R. 84. 
 
 Deposit receipts. Whctlier a deposit receipt issued by a bank is negotiable 
 depenils upon its terms. Where a receipt was payable to order on fifteen days' 
 notice, but interest was not to run unless the money remained at least three 
 months, the Privy Council thought it had all the essential attributes of a 
 
 Eromissory note, and would probal)l}' have held it to be negotiable if it had 
 een necessary to decide the point; Richer v. Voyer (1874) L.R. 5 P.C 461, 
 and such a receipt was held to be negotiable in Re Central Bank, Mprton ami 
 Block's Claims (1889) 17 O.R. .574. 
 
 In Sader(iuist v. Ontario Bank ( 1 887 ) 1 4 0. R .586, 1 5 A. R. 609, the Bank agreed 
 " to account for the money to the said S. Saderquist with interest." There 
 
558 
 
 BANKS AND BANKING. 
 
 
 
 a? 
 
 S3 
 
 were no wohIh of negotiability, aiiiltiie receipt wivh hold to lie not negotiable. 
 To the same effect is Mander v. Roval Canadian Hank (1869) 'iU C.P. V1!S, iil 
 C.P 492. 
 
 If it be true that such receiijt is u promissory note, words of negotiability 
 are not now necessary, see Kills of Kxchange Act, s. 8, (ih^k, j). 544, and it 
 would i)robablv be necessary to restrict their negotiability by ex])reHS worfls. 
 If not negotiable the debt may be assigned ; Re Commercial Bank of Manitoba, 
 BarkwclFs Claim (1897) 11 Man. R. 494. 
 
 A condition rc(|uiring the receipt to bo delivered up on payment does not 
 entitle a bank to retain the money on proof of loss and an offer of indemnity if 
 required ; Bank of .Montreal v. Little (1870) 17 Cr. 685. 
 
 Acquisition from agents and brokers. A uoud title to negotiable instruments 
 may bo ac(iuirL'd by a bank from a trustee, broker or other agent, although it 
 knows him to Ite such, unless it has knowledge of his want of authority. Lord 
 Herschell said in London Joint Stock Bank v. Simmons (1892) A.C. 2()1, 217, 
 " It is surely of the very essence of a negotiable instrument that you may treat 
 the person in ])ossession of it as having authority to deal with it, be ho agent 
 or otherwise, unless you know to the contrary, and are not compelled in order 
 to secure a good title to yourself to in(iuire into the nature of his title or the 
 extent of his authority." Mere negligence will not displace the title, but if 
 the bank knows that the person has no right to sc'l or that the person pledging 
 the securities has only a limited authority to raise money upon them, itcamiot 
 retain them ; Earl of Shetheld v. London .loint Stock Bank (1888) 13 App. 
 Gas. 333. 
 
 If negotiable securities retjuire endorsement, the bank must see that the 
 agent has power to endorse them for the pm'pose they are lioing used, and 
 wliere an agent had power to make contracts of sale and purchase, charter ves- 
 sels, an<l eniiiloy servants, and, as incidental thereto, to do certain specified 
 acts including emlorsenient of bills and other acts " for the purposes aforesaid" 
 a pledge of bills, payable to the order of his principals, for money borrowed 
 was held invalid ; Bryant v. La Banque dn I'euple (1893) A.C. 170. 
 
 Where stock is hchl "in trust" a traniieree from the hohler is iMiund to 
 enquire whether the transfer is authorized bv the nature of the trust ; Bank of 
 Montreal v. Sweeny (1887) 12 App. Cas. 717, 12 S.C.R. 661, but where .stock 
 was pledged to a loan company and the transfer was made to "J. T. , Manager 
 in trust, the words were held to indicate onh' that he held in trust for his 
 employers, and were not calculatofl to suggest that he stood in a fiduciary 
 relation to anv other person ; London and Canadian Loan and Agency Co. v. 
 Duggan( 1893)' A.C. 506. 
 
 DISABILITIES OF A BANK. 
 
 Not to engage in trade. A bank cainiot l)e bound by a ^^■arl•anty express or 
 implied, given on a sale of a macliine taken by their agent, and finishetf by the 
 bank, for a debt due the bank ; Radford v. Merchants Bank (1883) 3 O.R. 529, 
 but a bank may take security on personal |)roperty for a debt already incurred, 
 and make such arrangements for its sale and realization as they think proper ; 
 Re Rainv Lake Lumber Co., Stewart v. Union Bank of Lower Canada (1888) 
 15 A. R. "749. 
 
 Not to Lend on Mortgages or Bank Stocks. A bank is prohibited from lending 
 on mortgages and l)ank stocks. The authorities contain expressions which are 
 not entirely in unison a« to the efl'ect of a violation of this prohibition. A similar 
 prohibition as to lending on the security of merchandise was contained in the 
 charter of an Austr'alian Bank, l)Ut a pledge of wool was held, nevertheless, to 
 pass the title to the l)ank and it successfully maintained an action of trover 
 against the Trustees in Insolvency of the pledgoi's ; Ayers v. South Australian 
 Banking Co. (1871) L.R. 3 P.C. 551. Mellish L.J. in delivering the judg- 
 ment said at p. 559, " Now, unquestionably, a great many questions might be 
 raised on the efi'ect of that clause in the charter which may be of very great 
 importance. There may be a question whether under any circumstances, the 
 effect of violating such a provision is more than this, that the Crown may take 
 advantage of it as a forfeiture of the charter, but the only point which appears 
 to their Lordships is necessary to be determined in the present case is this, 
 that whatever efi'ect such a clause may have, it does not prevent property 
 passing, either in goods or in lands under a conveyance or instrument which 
 
BANKS AND BANKING, 
 
 559 
 
 under the tinlinary circumstances of law wouhl puss it." There was, however, 
 no plea of illouality, a fact which is ciinimented on hy Ferguson J, in (Jrant v. 
 La Ban<iue Nationalo (1888) 9 O.K. 411, 422, anil no statutory prohibition, 
 which is the distinction relied on by Strong J. in Bank of Toronto v. Perkins 
 (188H) 8 .S.C.R. (il3. It is clear that if bank stock is assigne<l to a nominee of 
 the bank as security for an advance in contravention of the proliibition, the 
 Bank cannot rely on the illegality and refuse to return the shares on payment 
 of the loan; Exchange Bank v. Fletcher (181K)) 19 .S.C.R. 278. In tlie last 
 mentioned ca.se Patterson J. at pp. 280-288 relied upon the case before men- 
 tioned of Avers v. South Australian lianking Co, (1871) L. R. 3 P.C. MH, and 
 suggested that while a violation of the provision may be an otl'ence against the 
 Baiik Act, it did not make the transaction iil/ni rirti or prevent the property 
 passing to the Bank. However, in the ease of National Bank of Australasia 
 V. Cherry (1870) L.K. 3 P.C. 299, Lord Cairns said at p. .307 the object of the 
 legislature was to make it ii/tr<i inn;s of the Bank to take, upon the occasion of 
 ■contracts for advances, securities of the kind mentioned. In Ontario, the 
 authorities have been uniform that the ])rohibited securities are void, and that 
 the objection need not come from the Crown. In Commercial Bank v. Hank 
 of Upper Catuida (1809) 7 < ir. 230, 423, a sum of £ 1,000 lent by a bank was held 
 not to bo secured by mortgage of land given at the time, because for all that 
 appeared the mortgagor was at liberty to draw the sum afterwards, and in 
 Bank of Toronto v. Perkins (1883) 8 S.C.R. 603, a mortgage as collateral secu- 
 rity for a note discounted by the bank, and placed to the mortgagor's credit 
 on the same day was held void. The same view was taken by Ferguson J. in 
 Grant v. La Banquo Nationale (1885) 9 O.R. 411, where a pledge of timber 
 limits was made to a bank, and by the Manitoba Ccmrt in Bathgate v. Mer- 
 chants Bank (1888) 5 Man. L.R. 210 where a chattel mortgage was held to be 
 invalid. The law would in the latter case probably be otherwise if the 
 loan were to a wholesale manufacturer, jjurchaser or shipper upon goods pro- 
 ducf'l or purchased bj- him for sale in liis business. 
 
 The Courts lean towards upholding securities, and where a bank asser ed 
 that a mortgage was given for a past debt, while the moitgagor asserted it 
 was given for a present advance, the Court found in favoi' of the Bank's con- 
 tention; Royal Canadian Bank v. Cummer (1869) 1.") (Jr. 627. Where a debt 
 was contracted and security given concurrentlj- by deposit of title deeds, and 
 the advance was not accompanied by any promise to give any further or other 
 security at any futiu'o time, and afterwards, the boi'rower being entirely free, 
 either to give or refuse as he thought best, gave a memorandum that the deeds 
 should be held as security, the equitable mortgage was sustained as being given 
 for a past debt ; National Bank of Australasia v. Cherry (1870) L.R. 3 P.C. 299, 
 ar.d where a bank by virtue of a pledge of timber limits for a present advance 
 afterwards secured the renewal licenses in its own name, it was held to be 
 entitled to retain thorn as security for the indebtedness; Grant v. La Banque 
 Nationale (1883) 9 O.R. 411. 
 
 Strictly speaking a Bank may take security on real or personal estate for a debt 
 that had no ^ revious existence, if the debt is contracted in the ordinary course 
 of business e.g. upon a bill of exchange, anil the mortgage is really and in truth 
 taken to secure the connnercial transaction, and the bill is not created for the 
 mere purpose of upholding and giving colour to the mortgage, but what the 
 real purpose is, is a (luostion of fact for a jury, upon which the conclusion 
 would be so uncertain that it would not bo prudent for banks to risk their 
 money, where the nature of the transaction might appear to bo at all eiiuivocal, 
 see per Sir J. B. Robinson C.J. Connnercial Bank v. Bank of Upper Canada 
 (1859) 7 Gr. 430; per Gwynno J. Bank of Toronto v. Perkins (1883) 8 S.C.R. 
 627. Where hiring and sale agreements wore accessory to the debts repre- 
 sented by notes, the Bank, which discounted the notes, was held to be entitled 
 to the benefit thereof; Central Bank v. Garland (1890) 20 O.R. 142, 18 A. R. 
 438. 
 
 Although a bank is prohibited from lending on its own stock, it has a lien 
 upon the stock of any shareholder for the amount of his indebtedness, under 
 s. 65 of the Act. 
 
 In consequence of the inability of banks to hold vessels, unless the transac- 
 tion is within s. 72, no implied promise can ariso against them as ship- 
 owners, nor is any express promise binding, Lymm v. B:ink ot Upper 
 Canada (1832) 8 U.C.R. 334. 
 
 The sale, by an officer of the bank, of shares held in trust for the directors, is 
 not an absolute nullity, but at most a mitter which the transferee could waive 
 
560 
 
 BANKS AND BANKING. 
 
 O 
 30 
 
 a 
 
 3 
 
 as voidable, and if a winding-up supervenes the transiiction becomes of unini- 
 iK'aoiuil>l<" validity betwrt'ii tiie tiiinHferee and the lii|iiidiit(>rH; Re Central 
 Bank, NamiiitirH iuho (18S8) Hi O.FV •M\. 
 
 Altiuiiigii the Hecuritv may bo invalid, the i)(>rn»wer will be liable for the 
 money loaned; Holland v. La Caisso D'Keonomie do tiuei)ee (1S95) 24 S.C.H. 
 405. 
 
 Taking security for debt contracted. For debts (Muitrautetl in the ordinary 
 course of busiiicsH, banks are given express power by s. 08 to take mort- 
 gages or bypi)thei|ues upon real or personal, iinmovaltle oi' movable ))roperty. 
 A chattel mortgage is therefore gcxwl ; Hank of Montreal v. .MeW'hirter {18(i7) 
 17 ('. I*. HfMi ; He Rainy Lake Lund)er Co., Stewart v. Union Hank of Lower 
 Canada (1888) \Tt A.R. 74!t, and so is a real estate nutrtgage, Merchants Bank 
 v. Hostwick (I87S) 28 C. 1'. 4.")0, .'1 A.R. 24, and the mortgage may cover re- 
 newals and substitutions for the bills or notes representing the indebtedness at 
 the time the mortgag(! is given. And even if the mortgage is given only to 
 secure certain promissoi'y notes, it will not be p ' by tne substitution of 
 renewal notes, though as a matter of bookkeepir ink nuiy treat the first 
 
 notes aiul the subse(|ucnt sul)stitutionary notes i by the application of 
 
 the proceeds from time to time of the renewals. . .lole series or notes and 
 
 renewals form links in one and the same chain of liarnlity whi(!h is secured by 
 the mortgage; Dominion Bank v. Oliver (1889) 17 O. R. 41)2, and even if 
 further advances are made, and the account in resi)ect thereof, and of cash 
 deposits made by the mortgagor, is kept as one open current account against 
 which the mortgagor draws cheques to retire the notes secured by tie mort- 
 gage as they mature, the nuirtgage will not be treated as satisfied beyond the 
 amount (if any) by which the indebtedness has actually been reduced ; 
 Camenmv. Kerr (1878) 3 A.R. 30 ; Merchants Bank v. MotVatt (188:<) .5 O.R. 
 122, 137 ; (Jriffith v. Crocker (1891) 18 A.R. .370. 
 
 A mortgage to secure an endorser against endorsements was assi"ned to a 
 ank before the endorsements were made, and was held to be valid ; Re Es.sex 
 Land a.id Timber Co. (1891) 21 O.R. 307. 
 
 Bale of Collaterals. S. CO confers upon banks an ox[)ress power to sell col- 
 lateral securities. It is not clear wliether that power is confined to stocks, 
 bonds, debentures and other .securities of that kind, or whether it extends to 
 bills and notes. Contrast the language of s. ()4. Where documents are 
 delivered as cohatetal securities for a debt the transaction is a pledge, and the 
 pledgee has power to sell in defatdt of payment at the time fixed ; Martin v. 
 Reid (1862) 11 C.B.N.S. 730 ; Johnston v. Stear (1803) 15 C.B.N.S. 330 ; and 
 may obtain an order for sale by action, but not a judgment for foreclosure ; 
 Carter V. Wake (1877) 4 Ch. D. 605; Fraser v. Byas (1895) 13 R. 452, Imt if 
 no day is fixed for payment, a demand therefor nnist be made ; Pigot v. (Jub- 
 ley(r864) 15 C.B.N.S. 702. A loan of stock is a sale; Carnegie v. Federal 
 Bank (1884) 5 0. R. 418. Where securit v is given by mortgage as distinguished 
 rom a pledge, an express power of sale is necessary as the mortgagee must ho 
 prepared to restore the mortgaged property upon payment of the debt, unless 
 he has disposed thereof by virtue of some i)ower of sale or otherwise with the 
 consent or authority of the party entitled to redeem ; (Jowland v. (iarbutt 
 (1867) 13 Gr. 578; Lochart v. Hardy (1846) 9 Beav. 349; Palmer v. Hendry 
 (1859) 27 Beav. .349, 28 Beav. .341 ; Walker v. .Jones (1866) L.R. 1 P.C. 50; 
 West London Commercial Bank v. Reliance Permanent Building Society (1884). 
 27 Ch. D. 187, 29 Ch. D. 954. 
 
 In addition to the powers given by the Act, further powers may be acciuircd 
 by agreement made at the time of incurring the debt, or at the time, any 
 extension of time for payment is granted ; s. 66 (2). 
 
 When notice of sale is required, it should be given to all parties interested 
 as assignees or otherwise in tiie securities of whom the bank has notice, as well 
 as to any surety for the debt. See notes to R.S.O. c. 121 infra. 
 
 Real Estate for Occupation. To the extent to which a bank is authorized ta 
 ac(jiiirc and hold lands, it is exempt from the provisions of the Statutes of 
 Mortmain, see notes to R.S.O. c. 112 ivfra. There is no limit to the value of 
 lands which may be acquired by a bank, so long as the premises are required 
 for its actual u.se and occupation, or the management of its business. Lands 
 owned by a bank and not so required can only be forfeited bj' the Crown, and 
 that only after office found. Until forfeited the title is voidable only X- 
 McDiarniid v. Hughes (1888) 16 O.R. 570 ; Beoher v. Woods (1866) 16 C.P. 29. 
 
BANKS AND BANKIN' 
 
 561 
 
 Purchase of Land Under Execution, fto. A l>aiik iiiiiy ]>ur('hiiMi> the ri'iil prop- 
 erty of liny tlflitor of tin; liaiik which is l>i'iiig solil iindtT i-xecutiim, wlii'thtT 
 on an excfution at tlie suit of the hank or otherwise, if in tliat way they wish 
 to aci(uire an 'aitstunding claim or cliargc on the proj)erty of a clehtor of tho 
 hank ; see Kii .,'sniill v. Bank of Upper Canaihv (lS(i4) l.'J C.P. (iOO, and s. tit), 
 extends tho power to all projw'rty of a del)tor which is heing sold in inritum. 
 
 Acquiring Absolute Title. Whore the ahsoluto title to real juopertv mort- 
 gaged to a liank is aoiuired liy it, the property, unless ruimired tor its own 
 use, nuist ho sold within seven years after its aeiiuisition. No reverter of tho 
 pniperty to the original owner occurs, if the property is not so sold, such as in 
 provided for in nany statutes, nor is any sale tiy the court provided for as in 
 eases of charital)le devises hy R.S.O. e. 112. Whether a violation of the sec- 
 tion wotdd give a right of forfeiture! of the land to the Crown, oi- wliether the 
 charter of the l>ank might he forfeii,e<l, or whether the only [lenalty is the 
 pecuniary one imposed hy s. 7H, uro (luestions which have not heen decided. 
 
 Where it wn« )>rovided hy statute that lands held l)ey(md the prescrilied 
 period should vert to the original owner, a honajiik contract of sale within 
 the period wa leld to prevent the title of the comjwiny from heing defeated, 
 althinigh tho ^ was not carried out, owing to tlie purcha.ser's default ; Lon- 
 don and (Janadi f-oan and A _'eney Co. v. (irahani (1H8S) 16 O.R. .S2tt. 
 
 No provision i,s de as to the time within which the title accjun-ed hy the 
 mortgage itself is lu lie disposed of, and it maj' he reasonahlv argued that only 
 the title acijuired hy foreclosure or release »".<'. the ecpiity of redemption could 
 in any event ho forfeited, and especially would this he so if the mortgage debt 
 was not n'.erged. 
 
 Advances for Building Ships. Advances for building ships are generally 
 secured hy an assignment of the contract with the shin-huihler to huild the 
 ship, and hy a hill of sale of the ship, when completed. The contract with 
 the ship-builder usually provides for iiayment, by instalments, as the work 
 progresses, and that the property in the ship, and the materials prepared or 
 provided, or in the course of preparation for the same, shall pass to the per.soii 
 for whom the ship is being built, to the extent of his advances, subject to the 
 ship-builder's lien for any unpaid instalments. The Knglish decisions of 
 W(,i)d8 v. Russell (1822) f) B. & Ahl. 942, 24 R. R. 621 ; Clarke v. Spcnce 
 (1h:{6) 4 a. & E. 448, and Wood v. Bell (1855) 5 E. & B. 772, 6 E. & B. .S55, 
 establish the principle that where it appears to be the intention of the parties 
 to a contract for building a ship, that at a particular stage of its construction, 
 the vessel, so far as then finished, shall be appropriated to the contract of sale, 
 the property of the vessel, as soon as it has reached that stage of completion, 
 will pass to the purchaser, and subsequent additions made thereto will, acreti- 
 xione, become his property. Such an intention or agreement ought (in the 
 absence of any circumstances pointing to a difterent conclusion) to l)e inferred 
 from a provision in the contract to the effect that an instalment of the price 
 shall he paid at a particulai' stage coupled with the fact that the instalment 
 has been <luly paid, and that until tho vessel reached that stage, the execution 
 of the work was regularly inspected by the purchaser or some one on his 
 behalf. But there must always be facts proved or admitted sufficient to war- 
 rant the inference that the purchaser has agreed to accept the corpus so far as 
 completed, as in part implement of the contract of sale ; Seath v. Moore (1886) 
 11 ApD. Gas. 350, 380, .381 ; Ex parte Lambton ; Re Lindsey (1875) L. R. 10 
 Ch. 405, 414. But only the ship, or what is incorporated therein will pass ; 
 articles intended for the vessel, such as a rudder'and cordage will not pass, 
 without at any rate, an express agreement ; Wood v. Bell (1856) 6 E. & B. 355 ; 
 Tripp V. Armitage (18.39) 4 M. dk W. 687 ; Seath v. Moore (1886) 11 App. Cas. 
 350, 381, 385, disapproving on this point Woods v. Russell (1822) 5 B. & Aid. 
 942, 21 R. R. 621, see also Mucklow v. Mangles (1808) 1 Taunt. 318, 9 R. R. 
 784. 
 
 The registration of a ship is obtained on a certificate signed bj' the builder, 
 containing a true accotnit of the proper denomination, and of the tonnage of the 
 ship, as estimated by him, and of the time when, and the place where she was 
 built, and of the name of the person on whose account the ship was built, and 
 if there has been any sale, the bill of sale under which the ship, or a share 
 therein, has become vested in the applicant for registry ; Merchant Shipping 
 Act 1894 8. 10 (1). The signing of that certificate by the Imihler, has the 
 effect, from the time of registry of the ship, to vest the general property in the 
 L 1 
 
f 
 
 O 
 
 c 
 
 < 
 
 c/r 
 
 i 
 
 03 
 30 
 
 662 BANKS AND BANKING. 
 
 regiRtered owner ; Woods v. Russell (1822) T) B. & Aid. 942, 22 R. R. 621, and 
 his title will prevail over a subseciuent registration by the Iniilder in liis own 
 name ; Read v. Fairl)anks (1853) 13 C. B. (592. 
 
 An agreement that a person shall have a lien on a vessel in course of con- 
 struction for advances, is valid as against an assignee in bankruptcy ; Ex 
 parte Watts, Re Attwater (1863) ;i' u. J. Bank. 35 ; Swainston v. Clay'(1863) 
 4 Girt. 187. 
 
 SPECIAL BANKING SECURITIES 
 
 Warehouse Receipts; Bills of Lading, Etc A warehouse receipt is a receipt 
 for goods, wares or merchandise given by a person in possession tliereof, as 
 bailee, an<l by which he agrees to deliver the same to some person or to his 
 order or assigns. 
 
 It was formerly necessary that the receipt should be given l)y one who was 
 in fact a warehouseman ; Milloy v. Kerr (1878) 43 U. C. R. 78, 3 A. R. 350, 8 
 !l). C. R. 474; Merchants Bank v. Smith (1881) 28 (ir. 629, 8 A. R. 15 ; 8 S. 
 0. R. 512. And such is still the law as to receipts under tlie Ontario Act, 
 given as security for debts to individuals or corporations other than a chart- 
 ered bank. 
 
 A bill of lading is a receipt b^' a carrier for goods received by him to be car- 
 ried. Its chtti'acteristics are discusaeii in the notes to R. S. 0. c. 145 and 
 52 Vict. c. 30 (L») ; autt pp. 441-444. 
 
 Goods, wares ami merchandise are words of verj' wide signification, see s. 
 2 (c). They do not include choses in actio;. ; Humble v. Mitchell ().S40) 9 L. 
 J. Q. B. 30 ; nor shares in a joint stock Co. ih. Knight v. Barl)er (1846) 16 M. 
 & W. 66, or a canal Company ; Latham v. Barl)er (1794) 6 T. R. 76, or a rail- 
 way ; Bowlbj' v. Bell (1847) 3 C. B. 284; or a mining companv ; Watson v. 
 Spratley (1855) 10 Kx. 22"2. Nor do they comprise Bonds, certificates or other 
 securities of a like nature ; Heseltine v. Siggers (1849) 1 Kx. 856 ; Freeman v. 
 Apployard (1863) 32 L. J. Ex. 175. 
 
 Locality of Goods. The goods comprised in a warehouse receipt must be in 
 some certain place owned or kept by the person giving the same. A receipt 
 for 70,000 logs, which were at the time in Iraimitu from tiie woods, wliere they 
 were cut, to the mill, and were described as being in Lakes St. John and Cou- 
 chiching -' en route for Bradford Mill" was hehl bad, even though the logs 
 were confined by booms in those lakes, as the lakes couhl not be regarded as 
 "places kept" by the signers of the receipt ; Tennant v. Union Bank of Canada 
 (1892) 19 A. R. 1. 
 
 Fledge Receipts. Under s. 74 a bank is enabled to obtain what is virtually a 
 chattel mortgage from a wholesale manufacturer upon tile product of his 
 employment, and from a wholesale piu'cluiser of shipper of products in which 
 he deals. The definition of " manufacturer " in s. 2 (f) is very wide. 
 
 The point as to who is a wholesale purchaser or shipper arose in Bank of 
 Hamilton v. .Shepherd (1894) 21 A. R. 156 but was not decided. 
 
 Acquisition by Bank. Tiie provisions of the Act as to tiie ac(iuisition liy a 
 bank of a wareliouse receipt, bill of lading, or ])ledge receij)t must be strictly 
 observed, otherwise the same will lie void. To enable the bank to acquire 
 title to the goods covered thereby, the following points nnist be observed : — 
 
 (1) the security must l)c ac(iuired or promised in wnlimj when the ))ill, 
 
 note or debt secured tliereby is negotiated or contracted. 
 
 (2) The money ailvanoed must be at the fi-ee disposal of the borrower. 
 
 (3) the goods must be sutticiently described. 
 
 Negotiation. The Act contemplates only cash advances, made at tiie time 
 the securities are ac(iuired, and a renewal of notes is not a negotiation ; 
 Dominion Bank v. Oliver (1889) 17 O.R. 402. Where a wareliouse receipt was 
 aequireil by a bank purporting to i)e in consideration of an advance of .^4,000, 
 but it was shewn that at tlie time it was taken, no actual advance was made, 
 but that a note made by the borrower collaterally secured i)y another instru- 
 ment of the same kind covering other goods, w'as taken up, and a new note 
 taken, the security was held bad ; Bank of Hamilton v. Shepherd (1894) 21 
 A.R. 156. An advance upon a new note upon the understanding that old 
 notes then oi'ordue would be retired, is not a negotiation witliin the act, being 
 not a present advance, but merelv a mode of jiaying off an already existing 
 debt; Bank of British North Aiiierica v. Clarkson (1869) 19 C.P. 182. An 
 advance by a l)aiik to a manufacturer upon a security under s. 74 represented 
 by a note payable on demand, tiie proceeds of which were placed to an account 
 
BANKS AND BANKING. 
 
 663 
 
 of the borrower, but he was not entitled to draw anything tlierefroni, unless 
 he brougiit to the bank, bills drawn on, or notes of, custoniur.s for tlio amoinit 
 he desired to obtain, is not a negotiation of a note witiiiii, s. 7"), at tin; time tiie 
 sernrity is acquired ; Hal s tcil y. Han k of Hamilton (WMi) 27 O.K. 43;"), 24 A.K. 
 152, 2"s S.C.R. 235. When? a Company was innel)te(l to tiie Consolidated 
 Bank in the sum of .$23,0CK1, and warehouse receipts were then obtained, and 
 endorsed to the Standard Bank, as security for an advance of .*!23,tHK), wliich 
 went to pay the Consolidated Bank, wiio were aware that the debtoi-s were 
 insolvent, and the evidence showed that the advance by the Standard Bank 
 was not an independent transaction, but was made at the re([uest, and for tlie 
 lic.ietit of the Consolidated Bank u))on its express or implied guarantee of 
 indemnit}', it was held that no title passed to the Standard Bank upon the 
 receipt ; Milloy v. Kerr (1878) 43 U.C.R. 78, 3 A.R. 350, 8 S.C.R. 474. 
 
 Promise to give security. A written promise to g've the security made at 
 the time of the advance is of the same etl'cct as a present consideration : Ho 
 Central Bank, Canada Shij)])ing Co's. ease (1801) 21 O.R. 515. Formerly the 
 promise was not required to ne in writing. In several eases warehouse recei])ts 
 have been suppoi'ted b^' reason of the i)rior promise ; see Suter v. Merchants 
 Bank (1876) 24 Or. 365 ; Tennant v. Union Bank of Canatla (1892) 19 A.R. 1 ; 
 Re Central Bank, Canada Shipping Co's. case (1801) 21 O.R. 515. 
 
 The promise may be to give a receipt or bill of ladiiig, not then in existence, i 
 and for goods not yet manufactured or ship])cd. The ett'ect of the promise is( 
 to give tlie bank a good equital)le title to the goods as they come into exis- 
 tence, or are stored or shipped, which title will be good as against a voluntary/ 
 assignee and against creditors and j)ersons taking with notice of the bank'.s j 
 rights ; ih.; Doniinio n Bank v. Davidson (1885) 12 A.R. 90. 
 
 The promise should contain such definite description of the goods as will 
 enable them to Ite identified. Where the promi.se was of a wareliouse receipt 
 for all the goods manufactured at a woollen mill which the borrower could not 
 sell, but the bank was not to advance either to the full capacity of the mill, or 
 to tile amount of the unsold goods, tiie j)romise was held not to be so vague or 
 uncertain as to jirevent the liank from getting security for the advances ; 
 Suter V. Merchants Bank (1876) 24 (ir. lH'tii ; and a promise to give bills of 
 lading and warehouse receijits for coal and stone as received is goo<l, and tiie 
 tran.sfer of receipts after the arrival of the goods will be ujiheld ; Royal Canadian 
 Bank v. Ross(1877) 40 U.C.R. 4()(). So wiiere the promise was to give receipts 
 u])on the ])roduct of logs then in transit, receipts for lumber produced there- 
 from, afterwards given, wore upliehl, altiumgh receipts had been given for the 
 logs, which were invalid ; Tennant v. Union Bank of Canada )1892) 19 A.R. 1 ; 
 and where a bank advanced money for the purchase of cattle, and the cattle 
 wore delivered to a shipping com|)any where they were to be received for tiio 
 bank, and bills of lading|Were to be issued in the oank's name, the title of the 
 bank was held to be better than tliat of a creditor of the l)orrower who attaciied 
 the cattle ; Re Central Bank, Canada Sliipiiing Co's case (1891) 21 O.R. 515. 
 
 Actual, visible and continued possession. To make a warehouse receijit g(Jod, 
 the goods represented thereby must either be in the actual, visible and con- 
 tinued possession of tlie Jiarty giving it as Itailee thereof ; or such ])arty must 
 be tiie keeper of a wareliouse, or other jilace for goods in which the goods 
 actuallv are ; Bailk_of_Hii"iilton v. No^ Manufacturing Co. (1885) 9 O. R. 
 631. Tlie same sort oT~jjroof is not iwpnred in the case of a wareiiouseman, 
 granting such documents, as in tiie case of a mere bailee of tlic goods ; Re 
 Slonteith, Merehaiifs Bank v. Monteitli (1885), 10 O.R. 529. Tiie i)arty giv- 
 ing the receipts will bo estoppe<l from denying tliat tlie goods are in Ills 
 possession during tlie eurroncy of the receipts, in tlic ab.sence of any cx( .u- 
 tion creditor intervening ; ih, at p. ,541. 
 
 Receipts given by owner. Fornicily receipts eouhl lie given iiy the owner 
 of the goods, if he were a wholesale manufacturer or wliolcsale purchaser or 
 shipper; Tennant v. Union Bank of Canada (1892), 19 A. R. 1. Securities 
 uiKier s. 74 (Form C. ) are now sulistituted for receipts given by the owner. 
 
 Transfer by third person. Tlie liorrower neorl not be the owner of the goods. 
 A warehou.se receipt, and it would seem, a bill of lading, may be given or 
 transferred to the l)ank liy tlio owner of the goods as security for a present 
 advance to another ; Tennant v. Union Bank of Canada (1892), 19 A.R. 1, 6. 
 
 Transfer by agents. S. 73 (2) (3) gives to a bank the right to acfjuire from 
 an agent of the owner the title of tVo owner to goods represented by a ware- 
 house receipt, bill of lading or other document of title. See notes to the 
 Factors Act R.S.O. c. 150, ante pji. 479-483. 
 
 til 
 
£64 
 
 JUNKS AND BANKING. 
 
 
 90 
 
 Form of Securities under S. 74. Care must be taken in tlie preparation of 
 Keoiirities under s. 74, Literal compliance with the form given iti the Statute 
 is not necessary". Any document, which is to the like effect, is sutticient. The 
 document must be, 
 { 1 ) An assignment of specific goo<ls ; 
 
 (2) To secure a specific advance repayable at or l)efi)re a certain time ; 
 
 (3) Or, to secure specific bills or notes taken in respect of a specific advance 
 
 and any renewals thereof or substitutions therefor. 
 Care nnist be taken in describing the goods. The only safe rule to follow is 
 that laid down in the Hills of Sale Act, R. S. O. c. 148, i.e., to describe the 
 goods so that they may, by the description, be readily known and distin- 
 guished ; see notes lOile. pp. 3o3, .SM. Such a tlescrijition as "21 milch cows, 
 2.") boxes of goods, etc., must he avoided; McCall v. Wolff (1«>S5) 13 S. C. li. 
 13(t; Carpenter v. Deen (1889) 23 V. U. 1). oWi ; Witt v. Banner (1888) 20 
 (i. H. J). (jl4. The better plan i.s to assign all the goods in a certain jjlaee, or 
 all the logs in a certain boom, etc., and then to add an estimate o (juantity, as 
 estimateif to contain l,0O0,0(K> feet. 
 
 Priority over unpaid vendor. The bank has priority over the lien of an un- 
 paid vendor, unless it ac()uires the security with notice thereof A lien on 
 goods is a right to retain po.s.session thereof A lien of a vendor is lost if lie 
 voluntarily parts with the jios.session of the goods, or the documents of title 
 thereto. Mason v. Hatton (1877) 41 U. C. W. 010 ; per Holroyd J., IJaldey v. 
 Parker (1823) 2 B. & C. 37, 44; 2«) R. R. 260, 263. WhJre a shipper of 
 goods takes and keeps in his own or his agent's hands a bill of lading making 
 the goods deliverable to his own or his agent's order, that is effectual so fai- as 
 to preserve him a hold over the goods until the bill of lading is handed over 
 on the conditions being fulfilled, or at least until the consignee is ready and 
 willing, and oilers to fulfil these conditions, and demands the bill of lading ; 
 Ogg v. Shuter (1875) 1 C. P. 1). 47. In such a case the vendor, however, 
 retains not only his lien but a power to <lispose of the goods on the vendee's 
 default, so long at least as he continues in default \h. 
 
 Sale of goods. The iiank may sell the goods covered by any such security on 
 default. The following jirovisions nnist be observed : 
 
 (1) The ownier may consent to a disposition at any time and in any manner 
 
 and without notice. McCrae v. Molsons Bank (1878) 2.') (ir. 519. It is 
 wise to obtain such consent, as may appear necessary, when the advance 
 is made. 
 
 (2) If the goo<ls are timber, boards, deals, staves, saw-logs or other lumber, 
 
 the consent to sale without notice, or on shorter notice than thirty days, 
 must be in writing. 
 
 (3) Other goo<l8 may, with the consent either verbal or in writing, McCrae v. 
 
 Molsons Bank (1878) 25 Or. 519, of the owner, lie sold witliout notice. 
 Without such consent ten day's notice is required. 
 
 (4) E.\ce|)t by consent (written or verbal) the sale must- be by auction and 
 
 nuist be advertised as re(iuired by the Act. 
 
 There is now no limit of time beyond which a bank may not retain the goods 
 pledged. 
 
 Warranty on sale. On a sale of the goods the bank will be held'to impliedly 
 warrant a good title thereto unless it expressly negatives such warranty. 
 Peuchen v. Imperial Bank (1890) 20 0. R. 325. 
 
 Power to retain surplus. Notwithstanding the inability to take the securi- 
 ties except for a ])resent advance, the bank may stiiiulate that in the event of 
 a sale the surplus shall be applied on any other indebtedness of the borrower, 
 past or future, and such agreement will be valid ; Thompson v. Mol.sons Bank 
 (1889) 10 S. C. R. 604. The agreement gives to t)ie bank no further security 
 on the goods and the borrower or any other person having a right to redeem 
 the goo<is may ])ay the amount due on the specific advance and put an end to 
 the banks rights, ih. see also Stephens v. Boisseau (1890) 20 S. C. R. 437 ; 23 
 A. R. 230. 
 
 Without such an agreement or without the consent of the owner, the bank 
 should not sell more than sufficient to pay the amount due in respect of the 
 particular advance for which the pledge was made ; (Jibbs v. Donunion Bank 
 (1879) HOC. P. 30. 
 
 Foreign Banks, The provisions of the Act have no application to foreign 
 banks ; Commercial National Bank of Chicago v. Corcoran (1884) 6 O. R. 527. 
 
BANKS AND BANKING. 
 
 665 
 
 Issued Directly to Bank. A warehouae receipt may be issued directly to a 
 bank. Under the original Acts respecting advances on warehouse receipts title 
 could only be acquired l)y endorsement to the lender, and such is still the law as 
 to advances by private persons ; Bank of British North America v. Clarkson 
 (1869) 19C.P. 18-2; Royal Canadian Bank v. Miller (1869) 28 U.C.R. 593, 2<) 
 U.C. R. 266. A bill of lading may also be issued directly to a bank ; s. 73 (1), 
 see Re Central Bank, Canada Shipping Co.'s Case (1891) 21 O.R. 515. 
 
 Transfer of Receipts at Common Law. 'I'lio mere endorsement of a ware- 
 house receipt would not, at common law, pass the property : Glass v. Whitney 
 (1863) 22 U.C.R. 290. To ert'ect such a transfer a sale of the goods was neces- 
 sary and notice to the warehouseman bj' the purchaser or an attornment bj' 
 the warehouseman to the purchaser ; Coffey v. Quebec Bank (1869), 20 C.P. 
 110, 555. The statute merelj' authorizes the borrowing of money on ware- 
 house receipts, and the mere endorsement is therefore ineffective for any 
 other purpose; (ilass v. Whitnej (1863), 22 U. C.R. 290. 
 
 Endorsement as Indemnity. The endorsement of a warehouse receipt is not 
 a good security to an endorser of a note or other sui'oty, to indemnify him 
 against his liability ; Cockburn v. Sylvester (1877) 1 A.R. 471. 
 
 Endorsement as Continuing 
 continuing securitj' for future 
 C.P. 36. 
 
 Security. 1 he receipts cannot be endorsed as a 
 B advances; (iibbs v. Dominion Bank (1879) 30 
 
 Form of Endorsement. It is njt necessary that the endorsement should 
 shew that it is made as security for any particular note or debt. An endorse- 
 ment in blank is sufficient; Royal Canadian Bank v. Carruthers (1869) 28 
 U.C.R. 578, 29 U.C.R. 283 ; Bank of Hamilton v. Noye Manufacturing Co. 
 (1885) 9 O.R. 631. 
 
 Re-endorsement of Receipts. Upon the payment of the debt for which the 
 receipt is delivered as security, the original owner is remitted to all his origi- 
 « nal rights, and is not confined to the rights which the bank had ; Mason v. 
 firoat Western Ry. Co. (1871), 31 U.C.R. 73. 
 
 Insurable Interest. The owner of the goods has, notwithstanding the en- 
 dorsement of the receipt as security, an insurable interest in the goods ; Par- 
 sons v. Queen Insurance Co. (1878) 29 C.P. 188; MoBride v. Gore District 
 Mutual Fire Ins. Co. (1870) 30 U.C.R. 451. 
 
 Negligence of Bank, If the bank has received the written promise of the 
 borrower to give an authorized security, and is guilty of negligence with 
 reference thereto, or the proceeds of the gooils, such negligence will discharge 
 a suretj' for the debt who has not consented thereto, to the extent to which he 
 is damaged ; Molsons Bank v. (iirdlestone (1879) 44 U.C.R. 54. 
 
 Admixture of Property. 'Where the goods embraced in the security are of 
 an indistinguishable character, such as flour, grain or coal, and the person 
 granting the receipt has commingled the .same with his own, the holder of the 
 receipt will be entitled to an equivalent quantity ; Bank of Hamilton v. Nove 
 Manufacturing Co. (1885)9 O.R. 631 ; Clark v. Western Assce. Co. (1866) 
 25 U.C.R. 217; Coffey v. Quebec Bank (1869) 20 C.P. 110, 555; Merchants' 
 Bank v. Smith (1881) 28 Gr. 629 ; 8 S.C.R. 512, ,542 ; Great Western Ry. Co. 
 V. Hodgs(m (1879) 44 U.C.R. 187. But if the borrower receives goods from 
 the warehouseman covered by the receipt, the bank will have no title as against 
 the true owner to other gixxls deposited by the borrower with the warehouse 
 man, in the place of the goods so taken ; Llado v. Morgan (1874) 23 C.P. 517. 
 
 The product of the goods covered by th" receipt either originally or on the 
 rule as to admixture, such as grain, is the property of the baiik, .so long as it 
 can be traced, whether it be in flour or in money ; Re (loodfallow. Traders' 
 Bank v. (i(X)(lfallow (1890), 19 O.R. 299. Sec. 76 now tledares in express terms 
 the right of a bank to the product of all goods, wares and merchandise covered 
 by any of the securities under discussion, both in their luicompleted and fin- 
 ished state. What the rights would be if other articles not covered by the 
 securities were interwoven in the product is a difficult question, and the ijues- 
 tion becomes still more ditficult if the case be supposed of the title to the other 
 articles l)eing in another bank, under another security of the .same class. 
 
 Substitution of Securities. A bank cannot acquire a good title to g(X)ds 
 covered by the security except for an actual cash ailvance. The substitution of 
 securities is prohii)ite(l. Negotiating a new note and applying the proceeds in 
 
566 
 
 BANKS AND BANKING. 
 
 30 
 
 C 
 
 r 
 c/ 
 
 payment of a past debt will not support a security although old securities a>"; 
 at the same time given up; Bank of Hamilton v. Shepherd (18S4) 21 A.R. 
 156 ; Bank of Hamilton v. Halsted (1890) 27 O.R. 435, 24 A.R. 152, 28 S.C.R. 
 235. The contrary decision in Bank of Hamilton v. Noye Manufacturing 
 Company (1885), 9 O.R. 631 cannot now be treated as law. But a warehouse 
 receipt may l)e taken in lieu of a l)ill of lading of the same goods and, conversely, 
 a l)ill of lading may be taken in place of a warehouse receipt upon the goods 
 being shipped. 
 
 Creditors following Proceeds of Invalid Securities. Although a security may 
 l)e invalid for non-compliance with the Act, creditors will have no right to 
 recover the proceeds from the bank, if it realizes upon tlie goods before any 
 execution creditor intervenes, or the rights of other parties, such as purchasers 
 or assignees for creditors accrue ; Re Honteith, Monteith v. Merchants' Bank 
 (1885) 10 0. R. .529 ; Conn v. Smith (1897) 28 O R. 629. The invalidation 
 against purchasers, creditors and assignees for creditors of securities given for 
 pre-existing debts in the forms prescribed by the Bank Act occurs by reason of 
 the non-compliance with the provisions of the Acts relating to chattel mort- 
 gages and bills of sale in the several provinces. A security in form C, pre- 
 scril)ed by s. 74 would be apt to pass the legal property in the goods descrioed 
 tlierein at common law ; Bantjue D'Hocbelaga v. Merchants' Bank (1895) 15 C. 
 L.T. 64, 10 Man. L. R. 351. But if not filed as a chattel mortgage, it would 
 1)6 invalid as against creditors and subsecjuent pi.rcliasers ancl mortgagees. 
 The rights of ( reditors may in Ontario be asserted under an execution, or by an 
 action on behalf of all creditors, see R.tS.O. c. 148, s. 38, an/e pp. 345, 350. 
 As the transfer of goods in the possession of a carrier or warehouseman does 
 not re(|uire registration, ante p. 349, there would appear to be little reason for 
 tlie provision preventing warehouse receipts and bills of lading being taken as 
 security for pre-existing debts, see Commercial National Bank of Chicago v. 
 Corcoran (1884) 6 O.R. 527. 
 
 WAREHOUSE RECEIPTS, ETC., UNDER ONTARIO ACT. 
 
 53 
 
 The scope of the Ontario Act (R. S. O. c. 145, ss. 6-11) untt pp. 4.S3-435 can- 
 not well be understood except by comparison with the analogous provisions of 
 the Bank Act, and the decisions thereon. To avoid re|)etition the notes 
 tiiereon were not inserted after that Act. Tiie Ontario Act authorizes loans 
 upon warehouse receipts, etc., by private individuals. 
 
 Points of difference. (1) The definition of goods, wares and merchandise in 
 tlio Bank Act includes the same articles as the Ontario Act and adds thereto 
 saw-logs, petroleum, crude oil and all agricultural products and other articles 
 of connnerce. It is i)robable the words themselves are wide enough to include 
 the added particulars. 
 
 (2) Tlie Ontario .\ct covers, (1) four clas.ses of documents, viz.: (a) cove 
 receipts, (/*) l)ills of lading, (r) specifications of timber, and (»/) receipts. These 
 iinist be given by a covekeeper, miller, or tlie keeper of a warehou.se, wharf, 
 yaril, harnour or other place for cereal grains, goods, wares or merchandise ; 
 (2) bills of lading given l)y carriers. 
 
 Tlie party issuing the receipt must cai'ry on the prescribed business as his 
 calling, e.g., he must be a warehouseman ; Ontario Bank v. Newton (1869) 19 
 C, P. 258 ; Todd v. Liverpool and London and (Uobe Insurance Co. (1870) 20 
 C. P. 523 ; Merchants Bank v. Smitli (1881) 28 Or. 629 ; 8 A. R. 15, 8 S. C. R. 
 512. Whether or not lie is a warehouseman is a iiuestion of fact, ib. 
 
 (3) The receijjts, etc., may be issued by an owner to himself, i.e., he need not, 
 as under the Bank Act, be a bailee only. But in such cases they must be both 
 signed and endorsed by the issuer. Tiie issuer must be a warehouseman, cove- 
 keeper, miller, or keeper (jf a wharf, yard, harbour or other place for deposit- 
 ing goods. 
 
 (4) The receipts, etc., cannot be made in favor of the lender. They must 
 be endorsed to him ; Bank of British North America v. Clarkson (1869) 19 C. P. 
 182 ; Royal Canadian Bank v. Miller (1869) 28 U. C. R. 593, 29 U. C. R. 266. 
 
 (5) The security must be received at the time of the advance. A prior 
 promise will be insufficient. 
 
BANKS AND BANKING. 
 
 567 
 
 (6) Timber, boanls, deals, staves and other lumber must be sold within 
 twelve months, and other goods within six months after giving the security. 
 In an action by a lender for conversion of goods not so sold, a defence that the 
 lender is not the owner would be successfiu. Royal Canadian Bank v. Miller 
 (1S69)'28U. C. R. .59.3. The eftect of the expiration of the time without a 
 sale is to revest the property in the original owner ; see Royal Canadian l^ank 
 v. Ross (1877) 40 U. C. R. 466, 477. 
 
 (7) Thirty day's notice of sale of timber, etc., must be given and an adver- 
 tisement of sale must be published for eight days consecutively in at least the 
 nearest two daily newspapers to the place of sale, and in every issue of the 
 local paper not a daily, and the sale must be by auction. 
 
 (8) Of other goods ten day's notice of sale is required. 
 
 (9) The provisions as to notice and method of sale could probably be waived, 
 
 (10) The lender takes precedence over any unpaid vendor or other creditor 
 save and except claims for wages of (sic) labour performed in making and 
 transporting timber, etc. Probably the lien in the latter case could bo 
 asserted under The Woodmen's Lien for Wages Act, R. 8. 0. c. 154. 
 
 In other respects the authorities under the Bank Act will be applicable. 
 
 prior 
 
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 ' 111 
 
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PART X^ 
 
 Real Property 
 
 [569 
 

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 5 
 
 OENEBAL OBSEBVATIONS. 
 
 It would manifestly be impossible to comprise in a work o/ this nature, 
 exhaustive notes upon the Statutes relating to Renl^Property.l 'Most of the 
 Statutes are now interwoven in the text books on the modern law of real 
 property. Some of them form the subject of independent treatises. Such 
 notes as are appended to the statutes in this chapter are therefore intended 
 to be auxiliary only to existing text l)ooks. 
 
 570 
 
I 
 
 CHAPTER 112. 
 
 An Act to amend the law relating to Mortmain and 
 
 Charitable Uses. 
 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 1 . This Act may be cited as " The Mortmain and Charitable Short title. 
 Uses Act" 55 V. c. 20, s. 1. 
 
 2. So far as this Act applies to wills, the same shall only Application 
 apply to wills of testators dying on or after the 14th day of 
 April, 1892. 55 V. c. 20, s. 2. 
 
 3. " Land " in this Act shall include tenements and here- " Land," 
 ditaments, corporeal and incorporeal, of any tenure ; but not '"®''"*°^ ° • 
 money secured on land or other personal estate arising from or 
 connected with land. 55 V. c. 20, s. 3. 
 
 4. Land may be devised by will to or for the benefit of any Land devised 
 charitable use, but, except as hereinafter provided, such land j^ gofj' ^^^ ayvQ 
 shall, notwithstanding anything in the will contained to the * 
 contrary, be sold within two years from the death of the tes- 
 tator, or such extended period as may be determined by* the 
 High Court or a Judge thereof in Chambers. 55 V. c. 20, s. 4. 
 
 5. So soon as the time limited for the sale of any land Where land 
 imder any such devise shall have expired without the comple- Jold'after'ex- 
 tion of the sale of the land, the land shall vest forthwith in the piration of ^^ L^j. 
 Accountant of the Supreme Court of Judicature for Ontario ; ^^y***"- """^ "^ 
 and the High Court shall cause the same to be sold, or the "^ 
 sale completed (as the case may be) with all reasonable speed 
 by the administering trustees for the time being thereof ; and 
 for this purpose may make orders directing such trustees to 
 proceed with the sale or completion of the sale of such land, 
 or removing such trustees and appointing others, and may 
 provide by any such order or otherwise for the payment of 
 the proceeds of the sale to the said trustees in trust for the 
 charity, and for the payment of the costs and expenses incurred 
 by the said trustees or otherwise in or connected with such 
 sale and proceedings. 65 V. c. 20, s. 5. 
 
 (tM..Jw<:;4rl 
 
 ]571] 
 
672 
 
 Sec. 10. 
 
 MORTMAIN AND CHARITABLE U.SES. Chap. 1 1 2' 
 
 s 
 
 c 
 
 
 Personal »i',,. ft Any personal estate by will directed to be laid out in the 
 
 to be laid out purchase of land to or for the benefit of any charitable uses, 
 
 in land. shall, excej>t as hereinafter provided, be held to or for the 
 
 benefit of the charitable uses as though there had been no 
 
 direction to lay it out in the purchase of land. 55 V. c. 20. s. G. 
 
 Power to re- 
 tain land in 
 certain cases. 
 
 Mortmain 
 Acta not to 
 apply to 
 impure 
 personalty. 
 
 1. The High Court, or a Judge thereof sitting in Chambers, 
 if satisfied that land devised by will to or for the benefit of 
 any charitable use, or proposed to be purchased out of per- 
 sonal estate by will directed to be laid out in the purchase of 
 land, is required for actual occupation for the purposes of the 
 charit}', and not as an investment, may by order sanction the 
 retention or acquisition, as the case may be, of such land. 
 55 V. c. 20, s. 7. 
 
 8. Money charged or secured on land or other personal 
 estate arising from or connected with land, shall not be deemed 
 to be subject to the provisions of the Statutes known as the 
 Statutes of Mortmain or of Charitable Uses as respects the 
 will of a person dying on or after the 14th day of April, 1892, or 
 as respects any other grant or gift made after the said date. 
 65 V. c. 20, s. 8. 
 
 Exercise of 9. The jurisdiction of the High Court under this Act is to 
 
 jurisdiction of be exercised by a Judge in Chambers or otherwise, and may 
 
 HighOourt. , • J • "^ J. • 1 n 
 
 be exercised in a summary manner so as to avoid all unneces- 
 sary expense. 55 V. c. 20, s. 9. 
 
 Act to apply 10. This Act affects only devises or legacies which prior to 
 legacies other] the 14th day of April, 1892, would have been void, and shall 
 wise void. not be construed as taking away any right prior to that date 
 by statute or otherwise possessed by any corporation ; nor 
 shall this Act be construed as expressly or by implication 
 affecfting any actions then pending or any question whatever 
 therein 55 V. c. 20, s. 10. 
 
MORTMAIN AND OHAHlTAliLE USES. 
 
 573 
 
 NOTES. 
 
 Early statutes. Tlio luily statiiU's tU-uliiij,' with iilit'imtii'ii to c'diporatioiis 
 are !l Hen. 111. c M (Magna (.'harta); 7 Kdw. 1. <■. l.S (IK' Vnis Htlijiiosis); !3 
 E<l\v. 1. r. :]■>;. ir, KiL-h. II. r. ,\ aM<l -J.S Hill. VIIJ. i'. 1(1. I'liiliT tli.si- ai:tK 
 aiit'iiatiiin tii ('(ir)i<>i'ation.-<, withciiit lici'ii.sf in iiKiitinain fmiii tlic Cniwii, it* a 
 canst: of forfi'itnii' to the Crown. The lands laii only he foifeiteil l>y theCrowi) 
 and that only after otiice found; .McDiarniid v. Huj^heH ( IMh.S) I'tiO.H. ")70. 
 Until forfeiture, the alienation in mortiiiain reinains good. The right of the 
 Crown to grant a lieense in niortiiiaiii was coiiHiiiied hy ~ Hi H Win. III. c. 37. 
 CorponitioiiH of various kinds are, ehielly hy the Statutes under whieli they 
 are ineorjiorated, enahled to liold lands without license from the Crown. 
 Foreign c(a|)oration8 cannot hold lands without a license from the Crown; 
 Chaudii'ie Cold Mining (,'o. v. Desharats (IS7.S) L.H. .") I'.C. 'J77. Municipal 
 and trading corporations are hotli within the Statutes of Mortmain; Brown v. 
 McNah (1S73) -Jd (ir. 179; Chr. .diere Gold Mining Co. v. Desbarats (1873) 
 L.R. .T I'.C. -277. 
 
 Cbaritable Uses. Thu statute of (ieo. II. c. 3K in not in strictness a statute 
 of Mortmain; Leith & Smith 298. IJy that Statute it was enacted that no 
 lands, tenements or money to he laid out thereon should he given for or charged 
 with any charitahlo uses whatever, unless hy deed, indented, exeeutcil twidve 
 calendar months hefore the death of the donor, nor unless such gift lie nia<le to 
 take etl'ect immediatelj', and he without power of revocation. AH other gift.s 
 were roirl, and therefore the grantor could take advantage of their invaliaity. 
 The Statute wa.s passed to prevent the mischief arising from improvident alien- 
 ations or dispositions to charital)le uses hy dying or langui>liing persons; Shel- 
 foril on Mortmain p. 120. Charitahle uses are deHne<l iiy 43 Kliz. e. 4, and 
 emhraco relief of aged, impotent and poor people; maintenance of siek and 
 maimed soldiers and mariners ; schools gf learning; free schools and scholars 
 in universities; the repair of bridges, ports, havens, causeways, churches, sea 
 banks and highways ; education and perfeetment of orphans; relief, stock or 
 maintenance of houses of correction ; marriages of poor maids ; supportations, 
 aid and help of y<mng tradesmen, handicraftsmen aii<l jiersons decayed ; relief 
 or redemption of prisoners and captives ; and the aid or ease of any poor inhabi- 
 tants concerning payment of fifteens, setting out of soldiers and other taxes. 
 Land devised for the erection of a workhou.se is devi.sed for a charitable use; 
 Webster v, Southey (1887) 30 Ch. D. 9. Many statutes have been passeil 
 authorizing particular institutions to accept, by devise, lands ;ind interests 
 therein. I5y R.S.O. c. .307, s. 24 any religious society or congregation of Chris- 
 tians in Ontario may take or hold lands and interests therein liy gift, devise or 
 betpiest, if made six months before the death of the donor, subject to restric- 
 tions as to the annual value and period of holding. 
 
 Object of present Act. The present act is founded upon the Knglish Mort- 
 main and Ciiaritalile Uses Acts of 1888 and 1891 (51 & 52 Vict. c. 42 and 54 & 
 55 Vict. e. 73). Lands may now be devised bj' will for any charitable use. 
 To the extent which the devise would have been void before the act, the pro- 
 visions of the act apply, and the land nnist be sohl within the time limited by 
 the act. The charity will in all eases get the benefit of the devise. Moneys 
 charged or secured on land are remoxed entirely- from tl>e oj)eration of the 
 Statutes of Mortn'ain and Charitable uses. This includes a vendor's lien ; 
 Harrison v. Harrison (1829) 1 Russ. & Myl. 71. Moneys directed by will to 
 be laid out in land for charitable uses cannot be invested therein without the 
 sanction of the Court. 
 
 Application of Act. The act applies to the estates of all testators who have 
 died since 13th April, 1892, although the will mav have been made before that 
 date; He Uridger, Brompton Hospital v. Lewis (1894) 1 Ch. 297(1893) 1 Ch. 44 
 
 Land may be devised in favor of a charity for any estate or interest present 
 or future; Re Hume, Forbes v. Hume (189))) 1 Ch. 297, (1895) 1 Ch. 422. 
 
574 
 
 MORTMAIN AND CHARITABLE USES. 
 
 c 
 
 < 
 
 r 
 
 Property within the Act Ij\nil inclndi's tonoincntH nnd licroilitftiiiontR, cor- 
 |)<prcal or iiirinpiiicil, (if any ti-mirf. 'I'liis wnulil iiKludc li'aM'liolils; He Kcr- 
 sliaw (IHHS) ;C I'll. I). .174. " 
 
 Devlae to a Diocese. A (tcviflc to a KJHhop in truHt for IiIh ilioresu, jh not ii 
 devise to a (•iiaritalpi(^ use. Many, l>ut not ail, of tlio olijccts to « liicli tlm 
 fiiiiiis of a dioccHo are usually devoted may Ite ihaiitalilc, Imt milcsM llicrc is 
 soiMi'tliing in tlie devise requiring the gift to be ilevoted to any partieular one 
 or more of those olije<'ts, it is not a gift to a charitable use, and no order is 
 re(|uiied under s. 4 tu extend the time for salo. Ko McCauley (I8!)")'2S (). R. 
 (ilO. 
 
 i 
 
 r 
 55 
 
 53 
 
CHAPTER 119. 
 An Act respecting the Law and Transfer of Property. 
 
 Interpketation, b. 1. 
 Corporeal tenements to lie in 
 orant as well as livery, 8. 2. 
 Feoffments lo be by deed and 
 
 INNOCENT, 8. 3. 
 WOEDS OF LIMITATION UNNECESSARY, 
 
 8. 4. 
 ReCEIXT IN DEED SUFFICIENT, 8. 6. 
 
 Rights of purohasbk as to execu- 
 tion OP deed, 8. 6. 
 Partition, exchange, etc, to be by 
 
 DEED, 88. 7, 10. 
 
 Contingent intebe.sts, etc. , may be 
 
 disposed of by deed, 88. 8, 10. 
 
 Words "Grant" and "Ex- 
 change ; " EFFECT OF, S8. 9, 10. 
 
 Grantees etc, to take as tenants 
 
 IN COMMON and NOT AS JOINT 
 TENANTS, 8. 11. 
 
 Conveyance to include whole 
 e.state of grantor, 8. 12. 
 
 Deeds of bargain and sale, by 
 corporations, 8. 13. 
 
 Deeds of bargain and sale, enrol- 
 ment UNNECES.SARY, 8. 14. 
 
 PrOVISION fob SALES FREE FROM IN- 
 CUMBRANCES, 8. 16. 
 
 Payment into, and applications 
 
 TO court, 8. 16. 
 Implied covenants, s. 17. 
 Powers, mode of execution, etc., 
 
 88. 18-20. 
 Auctions of estates, 88. 21-26. 
 
 Rent charge, effect of partial 
 
 RELEASE, 8. 27. 
 
 Scintilla juris no longer neces- 
 sary, 8. 28. 
 
 Contingent remainder not to bb 
 defeated by forfeiture, sur- 
 render or merger of preced- 
 ing estate, 8. 29. 
 
 Improvements made under mistakb 
 OF title, 88. 30-32. 
 
 Purchases of reversions, 88. 33-36. 
 
 Purchaser for value without 
 notice, 8. 36. 
 
 Conveyance by a person to him- 
 self or to his wife, etc., 8. 37. 
 
 Debentures of corporations, s. 38. 
 
 Frauds in sales and mortgages, 
 8. 39. 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 1. Where the words following occur in this Act they shall interpre- 
 be construed in the manner hereinafter mentioned, unless a tation. 
 contrary intention appears : 
 
 1. " Land " shall extend to messuages, lands, tenements and "Land." 
 hereditaments, whether corporeal or incorporeal, and to any 
 undivided share thereof, and to any estate or interest therein, 
 
 and to money subject to be invested in the purchase of land or 
 of any interest therein. 
 
 2. "Mortgage" shall include every instiument by virtue «Moriwag».' 
 whereof land is in any manner conveyed, assigned, pledged or 
 charged as security for the repayment of money or money's 
 
 worth, and to be reconveyed, re-assigned or released on 
 
 satisfaction of the debt. 
 
 [575] 
 
■PHP 
 
 576 
 
 Chap. 119. LAW AND TRANSFER OF PROPERTY. 
 
 Sec. 1. 
 
 O 
 
 r 
 
 C/: 
 
 I 
 
 03 
 30 
 
 "Mortgagor." 3. "Mortgagor" shall include every person by whom any 
 such conveyance, assignment, pledge or charge as aforesaid is 
 made. 
 
 " Mortgagee." 4. " Mortgagee " shall include every person to whom or in 
 whose favour any such conveyance, assignment, pledge or charge 
 as aforesaid is made or transferred. 
 
 "Proi)erty." h. "Property" .shall include real and personal property, 
 45'^. c.''41. ^^'^^ ^"^y debt, and any thing in action, and any other right 
 8. 2. or interest. 
 
 6. " Conveyance " shall include feofiinent, grant, assignment, 
 appointment,lease,settlement,a,nd other as« irance.and covenant 
 to surrender, made by deed, on a sale, mortgage, demise, or settle- 
 ment of any property or on any other dealing with or for any 
 property ; and " convey " shall have a meaning corresponding 
 with that of conveyance. 
 
 7. " Purchaser" shall include a lessee or mortgagee, and an 
 intending purchaser, lessee or mortgagee, or other person, 
 who, for valuable consideration, takes or deals for any property ; 
 and " purchaf^ " shall have a meaning corresponding with that 
 of purchaser ; but sale .shall mean only a sale properly so 
 called. R. S. 0. 1887, c. 100, s. 1. 
 
 " Convey- 
 ance." 
 
 "Convey. 
 
 " Purchaser. 
 
 " PurchaHC.' 
 
 Corporeal ten- JJ. All corporeal tenements and hereditaments shall, as re- 
 deemed to Tie gards the conveyance of the immediate freehold thereof, be 
 in grant, etc. deemed to lie in grant as well as in livery. R. S. 0. 1887, 
 c. 100, s. 2. 
 
 Feoffments JJ. A feoffment otherwise than by deed shall be void at law, 
 
 to"te vofd'**'^'^ and no feoffment shall have any tortious operation. R. S. O. 
 1887, c. 100, s. 3. 
 
 Words of 4. — (1) In a deed, or other instrument, it .shall not be 
 
 limitation necessary, in the limitation of an estate in fee simple to use^ 
 Imp. Act, the word heirs ; or in the limitation of an estate in tail to 
 sec. 51. u^e the words heirs of the body ; or in the limitation of an 
 
 estate in tail male or in tail female, to use the words heirs 
 male of the body, or heirs female of the body. 
 
 (2) For the purpose of such limitation it shall be suffi- 
 cient in a deed, or other instrument, as in a will to use the 
 words in fee simple, in tail, in tail male, or in tail female, 
 according to the limitations intended, or to use any other 
 words sufficiently indicating the limitation intended. 
 
 A conveyance (3) Vv^here no words of limitation are used, a conveyance 
 of'Hm?tation ^ shall pass all the estate, right, title, interest, claim and demand, 
 passes all the which the conveying parties respectively have, in, to, or on the 
 estate, etc. property conveyed, or expressed or intended so to be, or which 
 Imp. Act, they respectively have power to convey in, to, or on the same, 
 sec. ()3. This sub-section shall apply only if and as far as a contrary 
 
 intention does not appear from tne conveyance, and shall have 
 
 
Sec. 10. 
 
 LAW AND TRANSFER OF PROPERTY. Chap. 119. 
 
 677 
 
 effect subject to the terms of the conveyance and to the pro- 
 visions therein contained. 
 
 (4) This section shall apply only to conveyances made after 
 the 1st day of July, 1886. R. S. O. 1887, c. 100, s. 4. 
 
 5. A receipt for consideration money or securities con- Receipt in 
 tained in the body of a conveyance shall be a sufficient discharge g^^t""*^' 
 to the person paying or delivering the same, without any j^^^ '^^j, ^j, 
 further receipt being indoi'sed on the conveyance, and shall, 54,55. 
 in favour of a subsequent purchaser not having notice that 
 the money or other consideration thereby acknowledged to be 
 received was not in fact paid or given wholly or in part, be 
 sufficient evidence of the payment or giving of the whole 
 amount thereof. R. S. 0. 1887, c. 100, s. Q. 
 
 (J. On a sale, the purchaser shall not be entitled to Rights of pur- 
 require that the conveyance to him be executed in his presence, execution *of 
 or in that of his solicitor, as such ; but shall be entitled to have, purchase deed, 
 at his own cost, the execution of the conveyance attested by imp. Act. ». 8. 
 some person a;ppointed b}' him, who may, if he thinks fit, be 
 his solicitor. R. S. O. 1887, c. 100, s. 7. 
 
 7. A partition and an exchange of land, and a lease Partition or 
 required by law to be in writing of land, and an assignment ian|^*"fc °^ 
 of a chattel interest in land, and a surrender in writing of unless by deed 
 land not being an interest which might by law have been '" ^" ^'"'^• 
 created without writing, shall be void at law, unless made by 
 deed. R. S. O. 1887, c. 100. s. 8. 
 
 not be 
 
 to us& 
 
 tail to 
 
 3n of an 
 
 rds heirs 
 
 8. A contingent, an executory, and a future interest, and a Contingent 
 possibility coupled with an interest in land, whether tht in*ia'nd*rnay'" 
 object of the gift or limitation of such interest or possibility be be disposed of 
 or be not ascertained, also a right of entry, whether immediate ^^ ^^''^' 
 or future, and whether vested or contingent, into or upon 
 land, may be disposed of by deed ; but no such disposition shall 
 by force only of this Act defeat or enlarge an estate tail. 
 R S. 0. 1887, c. 100, s. 9. 
 
 9. Neither of the words " grant," or " exchange," in any No implied, 
 deed, shall create any warranty or right of re-entry, or coven- t^Jfbf.'^create'd * 
 ant by implication except in cases where by any Act in force by the word 
 in Ontario, it is declared that the word "grant" shall have 11 ff*!'' " "'"„ 
 
 such effect. R. S. O. 1887, C. 100, S, 10. exchange. 
 
 10. The preceding three sections of this Act shall not extend three s'ec^ 
 to any deed, act or thing executed or done, or to any estate, tions not to 
 right or interest created before the 1st day of January, 1850, ^ggj"'"^^ 
 but they shall extend to and have operatic-i and effect on executed be- 
 and from that day. R. S. O. 1887, c. 100, s. 11. uaryliVso"" 
 
 M 1 
 
578 
 
 Chap. 119. LAW AND TRANSFER OF PROPERTY. 
 
 Sec. 11 
 
 GranteeH, de- 11. Where by any letters patent, assurance or will, made 
 yisecH, etc., g^^j executed after the first day of July, 1834, land has been 
 
 to take as . t • i , , 
 
 tenants in or IS granted, conveyed or devised to two or more persons 
 common unless other than executors or trustees in fee simple, or for any 
 are'toTake as less estate, it shall be considered that such persons took or 
 joint tenants, take as tenants in common, and not as joint tenants, unless 
 an intention sufficiently appears on the face of such letters 
 patent, assurance or will, that they are to take as joint ten- 
 ants. R. S. 0. 1887, c. 108, ,s. 20. 
 
 C 
 
 r 
 
 i 
 
 50 
 
 Conveyance to 1*4. — (1) Every conveyance of land, unless an exception is 
 hlnises^etc. specially made therein, shall be held and construed to include 
 and the all liouses, out-houscs, edifices, barns, stables, yards, gardens, 
 
 all the esta'te'^ orchards, commons, trees, woods, underwoods, mounds, fences, 
 etc. ' hedges, ditches, ways, waters, water-courses, lights, liberties, 
 
 privileges, easements, profits, commodities, emoluments, here- 
 ditaments and appurtenances whatsoever, to the lands therein 
 comprised, belonging or in anywise appertaining, or with the 
 same demised, held, used, occupied and enjoyed, or taken or 
 known as part or parcel thereof ; and if the same purports to 
 convey an estate in fee, also the reversion or reversions, 
 remainder and remainders, yearly and other rents, issues and 
 profits of the same lands and of every part and parcel thereof, 
 and all the estate, right, title, interest, inheritance, use, trust, 
 property, profit, possession, claim and demand whatsoever, of 
 the grantor, in, to, out of, or upon the same lands, and every 
 part and parcel thereof, with their and every of their appur- 
 tenances. R. S. O. 1887, c. 100, s. 12 (1) ; c. 105, s. 4 ; c. 106, 
 s. 3 ; c. 107, 8. 4. 
 
 (2) Except as to conveyances under the former Acts relating 
 to short forms of conveyances, this section applies only to con- 
 veyances made after the 1st day of July, 1886. R. S. 0. 1887, 
 c. 100, s. 12 (2). 
 
 Corporations Hi. Any corporation capable of taking and conveying 
 *onve^*b ibar^ i&nd in Ontario, shall be deemed to have been and to be 
 gain and sale, capable of taking and conveyin<f land by deed of bargain and 
 sale, in like manner as any person in his natural capacity, sub- 
 ject nevertheless to any general limitations or restrictions and 
 to any sjDccial provisions as to holding or conveying real estate 
 which may be applicable to such corporation. R. S. 0. 1887, 
 c. lOO.s. 13 
 
 Enrolment or 
 registration 
 not necessary 
 to validity of 
 deeds of bar- 
 gain and sale. 
 
 This Nhall not 
 affect priority 
 under Rev. 
 Stat. c. 186. 
 
 1 4. No deed of bargain and .sale of land in Ontario, executed 
 subseij^uently to the 6th day of March, 18M4, shall require enrol- 
 ment or registration to sujjply the place of enrolment, for the mere 
 purpose of rendering such bargain and sale a valid and effectual 
 conveyance forpa.ssing the land thereby intended to bo bargained 
 and sold, but this shall not affect any question of priority under 
 The Registry Act, or any Act heretofore in force respecting the 
 registration of instruments relating to real estate. R. S. 0. 1887, 
 c. 100, s. 14. 
 
Sec. 16 (6). LAW AND TRANSFER OF PROPERTY. Chap. 119. 
 
 579 
 
 15. — (1) Where land subject to any incumbrance, whether Provision for 
 immediately payable or not, i.s sold by the Court or out of I'ncumbrlnce" 
 Court, the High Court or the Court in which the sale takes imp. Act, a. s! 
 place may, if it thinks tit, on the application of any party 
 to the sale, direct or allow payment into Court — in case 
 of an annual sum charged on the land, or of a capital sum 
 charged on a determinable intcest in the land — of such amount 
 as, when invested in securities approved by the Court, the 
 Court considers will be sufficient by means of the dividends 
 thereof to keep down or otherwise provide for that charge ; and 
 — in any other case of capital money charged on the land — of 
 the amount sufficient to meet the incumbrance and any interest 
 due thereon ; but in either case there shall also be paid into 
 Court such additional amount as the Court considers will be 
 smfficient to meet the contingency of further costs, expenses, and 
 interest, and any other contingency except depreciation of 
 investments, not exceeding one-tenth part of the original amount 
 to be paid in, unless the Court for special reasons thinks fit 
 to require a larger additional amount. 
 
 (2) Thereupon the Court may, if it thinks fit, and either 
 after or without any notice to the incumbrancer as the Court 
 thinks fit, declare the land to be freed from the incumbrance ; 
 and make any order for conveyance, or vesting order, proper 
 for giving effect to the sale ; and give directions for the reten- 
 tion and investment of the money in Court. 
 
 (3) After liOtice served on the persons interested in or 
 entitled to the money or fund in Court, the Court may direct 
 payment or transfer thereof to the persons entitled to receive 
 or give a discharge for the same, and generally may give direc- 
 tions respecting the application or distribution of the capital or 
 income thereof. R. S. 0. 1887, c. 100, s. 15. 
 
 1 ii. — (1) Payment of money into Court shall effectually Reffulationa 
 exonerate therefrom the person making the payment. '^^''ntf into 
 
 (2) Every application to the Court shall, except where it is applioatioM. 
 otherwise expressed, be made in chambers, and on notice, imp. Aot, 
 
 g. 69. 
 
 (3) On an application by a purchaser, notice shall be served in 
 the first instance on the vendor. 
 
 (4) On an application by a vendor, notice shall be served in 
 the first instance on the purchaser. 
 
 (5) On any application, notice shall be served on such persons, 
 as the Court thinks fit. 
 
 (6) The Court shall have full power and discretion to make 
 such order as it thinks fit respecting the costs, charges or 
 expenses of all or any of the parties to any application. 
 R. S. 0. 1887, c. 100, 8. 16. 
 
580 
 
 Chap. 1 19. LAW AND TRANSFER OF PROPERTY. SeC. 17 (1). 
 
 O 
 
 
 33 
 
 Covenants to IT. — (1) In a Conveyance made on or after the 1st day 
 be implied. of July, 1886, there shall, in the several cases in this 
 44^45 V?*c. 41, Section mentioned, be deemed to be included, and there 
 B. 7. ' shall in those several cases be implied, covenants to the effect 
 
 in this section stated, by the person or by each person who 
 conveys, as far as regards the subject-matter or share of subject- 
 matter expressed to be conveyed by him, with the person, if one, 
 to whom the conveyance is made, or with the persons jointly, if 
 more than one, to whom the conveyance is made as joint ten- 
 ants, or with each of the persons, if more than one, to whom 
 the conveyance is made as tenants in common, that is to 'iy: 
 
 On conveyance 
 
 for value by 
 
 beneficial 
 
 owner. 
 
 Imp. Act, s 7. 
 
 Rev. Stat. 
 c. 124. 
 
 On conveyance 
 of leaseholds 
 for value, by 
 beneficial 
 
 Validity of 
 lease. 
 
 (a) In a cpnveyance for valuable consideration, other than 
 
 a mortgage, the following covenants by the person 
 who conveys, and is expressed to convey, as bene- 
 ticial owner, namely : 
 
 Covenants for right to convey ; 
 Quiet enjoyment ; 
 Freedom from incumbrances ; and 
 Further assurance ; 
 
 According to the tenor and effect of the several and 
 respective forms of covenants for the said purposes 
 set forth in Schedule B to The Act respecting 
 Short Forms of Conveyances, and therein num- 
 bered 2, 3, 4 and 5, respectively, subject to the 
 directions in the said Schedule contained. 
 
 (b) In a conveyance of leasehold property for valuable con- 
 
 sideration, other than a mortgage, the following 
 further covenant, by the person who conveys, and 
 is expressed to convey, as beneficial owner namely ; 
 
 That, notwithstanding anything by the person who so 
 conveys, made, done, executed or omitted, or 
 knowingly suffered, the lease or grant creating the 
 term or estate for which the land is conveyed is, at 
 the time of conveyance, a good, valid, and effectual 
 lease or grant of the property conveyed, and is in 
 full force, unforfeited, unsurrendered, and in nowise 
 become void or voidable, and that, notwithstanding 
 anything as aforesaid, all the rents reserved by and 
 all the covenants, conditions and agreements con- 
 tained in the lease or grant, and on the part of the 
 lessee or grantee, and the persons deriving title 
 under him to be paid, observed, and performed, 
 have been paid, observed and performed, up to the 
 time of conveyance. 
 
Sec. 18. 
 
 LAW AND TRANSFER OF PROPERTY. Chap. 119. 
 
 581 
 
 Against in- 
 cumbrances. 
 
 On conveyance 
 by direction 
 of beneficial 
 
 (c) In a conveyance, the following covenant by every On conveyance 
 peiNon who conveys, and is expressed to convey, etc.*""*^' 
 as trustee or mortgagee, or as personal representa- imp. Act, g. 
 tive of a deceased person, or as committee of a 
 lunatic so found by inquisition or judicial declara- 
 tion, or under an order of the Court, which 
 covenant shall be deemed to extend to every 
 such person's own acts only, namely ; 
 
 That the person so conveying has not executed, or done, or 
 knowingly suffered, or been party or privy to, any 
 deed or thing, whereby, or by means whereof the 
 subject-matter of the conveyance, or any part 
 thereof is, or may be impeached, charged, affected, 
 or incumbered in title, estate or otherwise, or 
 whereby or by means whereof the person who so 
 conveys is in anywise hindered from conveying 
 the subject-matter of the conveyance or any part 
 thereof, in the manner in which it is expressed to 
 be conveyed. 
 
 (2) Where in a conveyance it is expressed that by direc- 
 tion of a person expressed to direct as beneficial owner 
 another person conveys, then the person giving the direc- 
 tion, whether he conveys and is expressed to convey as 
 beneficial owner or not, shall be deemed to convey, and to 
 be expressed to convey as beneficial owner the subject-matter 
 so conveyed by his direction ; and a covenant on his part 
 shall be implied accordingly. 
 
 (3) Where in a conveyance, a person conveying is not 
 expressed to convej'^ as beneficial owner, or as settlor, or as 
 trustee, or as mortgagee, or as personal representative of a 
 deceased person, or as committee of a lunatic so found by 
 inquisition or judicial declaration, or under an order of the 
 Court, or by direction of a person as beneficial owner, no 
 covenant on the part of the person conveying shall be by 
 virtue of this section implied in the conveyance. 
 
 (4) The benefit of a covenant, implied as aforesaid, shall be 
 annexed and incident to and shall go with the estate or 
 interest of the implied covenantee, and shall be capable of 
 being enforced by every person in whom that estate or interest 
 is for the whole or any part thereof from time to time 
 vested. 
 
 (5) A covenant implied as aforesaid, may be varied or ex- Variation of 
 tended by deed, and as so varied or extended, shall, as far as covenants. 
 may be, operate in the like manner, and with all the like 
 incidents, effects and consequences, as if such variations or 
 extensions v,ere directed in this section to be implied. R. S. 0. 
 
 1887, c. 100, s. 17. 
 
 Where cove- 
 nants not 
 implied. 
 
 Enforcing 
 covenants. 
 
 POWERS. 
 
 18. A deed hereafter executed in the presence of, and 
 attested by two or more witnesses in the manner in which deeds 
 71 
 
 Mode of exe- 
 cuting powers 
 
582 
 
 Chap. 119. LAW AND TRANSFER OF PROPERTY. 
 
 Sec. 18- 
 
 o 
 
 c 
 
 < 
 r 
 ^■: 
 t/: 
 
 r 
 
 3 
 
 are ordinarily executed and attested, shall, so far as respects 
 the execution and attestation thereof, be a valid execution of 
 a power of appointment by deed or by any instrument in writ- 
 ing, not t(}stamentary, notwithstanding that it is especially 
 required that a deed or instrum«;nt in writing, made in exercise 
 of such power, .shall be executed or attested with some addi- 
 tional or other form of execution or attestation or solemnity : 
 but this provision shall not operate to defeat any direction in 
 the instrument creating the power that the consent of any 
 particular person shall be necessary to a valid execution, or that 
 any act shall be performed in order to give validity to any 
 appointment, having no relation to the mode of executing and 
 attesting the instrument ; and nothing herein contair.ed shall 
 prevent the donee of a power from executing it conformably to 
 the power, by writing or otherwise than by an instrument 
 executed and attested as an ordinary deed, and to any such 
 , execution of a power this provision shall not extend. R. S. 0. 
 
 1887, c. 100, 8. 18. 
 
 Person to 1 J>. A person to whom a power, whether coupled with an 
 
 is given miw*''^ interest or not, is given may by deed release, or contract not 
 to exercise, the power, whether the power w^as created by an 
 instrument heretofore or hereafter coming into operation. 
 R S. 0. 1887, c. 100, s. 19. 
 
 release or 
 aontract not 
 to exercise 
 same. 
 
 Sale under ?50. Where, Under a power of sale, a bona fide sale is 
 
 Ee^voideVby "^ade of an estate, with the timber thereon, or any other 
 reason of mis- articles attached thereto, and the tenant for life, or any other 
 menUotenant P^^^J ^^ ^^^ transaction, is by mistake allowed to receive 
 for life. for his own beneiit a portion of the purchase money or value 
 
 Imp. Act 22-23 of the timber or other articles, it shall be lawful for the High 
 . c. J, 8. . . Qq^j-j. upon an action brought or upon application made in a 
 summary way, as the Cfise may require or permit, to declare, that 
 upon payment by the purchaser, or the claimant under him, of 
 the full value of the timber and articles at the time of sale, with 
 such intei'est thereon as the Court directs, and the settle- 
 ment of the said principal moneys and interest under the direc- 
 tion of the Court, upon such parties as in the opinion of the 
 Court are entitled thereto, the sale ought to be established ; 
 and upon payment and settlement being made accordingly, 
 the Court may declare that the sale is valid, and thereupon 
 the legal estate shall vest and go in like manner as if the power 
 had been duly executed, and the costs of the application, as 
 between solicitor and client, shall be paid by the purchaser or 
 the claimant under him. R. S. 0. 1887, c. 100, s. 20. 
 
 AUCTIONS OF ESTATES. 
 
 Construction "it. In construing the next succeeding three sections of this 
 
 of particular * i 
 words. ACi, 
 
 "Auctioneer." !• " Auctioneer " shall mean any person selling by public 
 auction ; 
 
Sec. 28. 
 
 LAW AND TRANSFER OF PROPERTY. Chap. 119. 
 
 583 
 
 2. "Puffer" shall mean a person appointed to bid on the "PuSFer." 
 part of the seller. R. S. O. 1887, c. 100, s. 21. 
 
 33. Unless in the particulars or conditions of sale by auction when sale 
 of any land it is stated that such land will be sold subject to a ^''"J' b| 
 reserved price, or to a right of the seller to bid, the sale shall out reserve, 
 be deemed and taken to be without reserve. R. S. 0. 1887, 
 c. 100, s. 22. 
 
 33. Upon any sale of land by auction, without reserve, it Seller not to 
 shall not be lawful for a seller or for a puffer to bid at such ggrvea""[eg\ 
 sale, or for the auctioneer to take, knowingly, any bidding from 
 
 the seller or from a puffer. R. S. 0. 1887, c. 100, s. 23. 
 
 34. Upon any sale of land by auction, subject to a right for At reserved 
 the seller to bid, it shall be lawful for the seller or any one ^*Jf/S.'^"" 
 puffer to bid at such auction, in such manner as the seller may 
 
 think proper. R. S. 0. 1887, c. 100, s. 24. 
 
 35. Nothing in the next preceding four sections contaia:"Ji Sellerndt 
 shall be taken to authorize any seller to become the purcl i.st '• j'urchase 
 at the sale. R. S, 0. 1887, c. 100, s. 25. 
 
 30. The next preceding five sections shall not apply to any Application of 
 sale which took place before the 4th day of March, 1868. '^- ^^"'^^• 
 R. S. 0. 1887, c. 100, s. 26. 
 
 RENT-CHARGES. 
 
 3T. Tht3 release from a rent-charge of part of the heredita- 
 ments charged therewith shall not extinguish the whole rent- 
 charge, but shall operate only to bar the right to recover any 
 part of the rent-charge out of the hereditaments released, with- 
 out prejudice, nevertheless, to the rights of all persons interested 
 in the hereditaments remaining unreleased, and not concurring 
 in or confirming the release. R. S. 0. 1887, c. 100, s. 27. 
 
 Release of 
 part of land 
 subject to rent- 
 charge not to 
 be an extin- 
 guishment of 
 the charge on 
 the rest, etc. 
 Imp. Act 22- 
 23 V. c. 35, 8. 
 10. 
 
 FUTURE AND CONTINGENT USES. 
 
 38. Where by any instrument any hereditaments are limited 
 to uses, alJ uses thereunder, whether expressed or implied 
 by law, and whether immediate or future, or contingent or 
 executory, or to be declared under any power therein con- 
 tained, shall take effect when and as they arise by force of and 
 by relation to the estate and seisin originally vested in the person 
 seised to the uses ; and the continued existence in him or else- 
 where of any seisin to uses or scintilla juris, shall not be 
 deemed necessary for the support of, or to give effect to future 
 or contingent or executoi'y uses ; nor shall any such seisin to 
 uses or scintilla juris be deemed to be suspended, or to remain 
 or to subsist in him or elsewhere. R. S. 0. 1887, c. 100, s. 28. 
 
 Limitation to 
 uses, shall take 
 effect as they 
 arise without 
 continued 
 seisin or scin- 
 tilla juris in 
 the persons 
 originally 
 seised. 
 
 Inin. Act 23- 
 24 V. c. 38, 
 s. 7. 
 
584 Chap. 119. LAW and transfer of property. 
 
 CONTINGENT REMAINDERS. 
 
 Sec. 29. 
 
 Certain con- 
 tingent re- 
 mainders not 
 to be defeated 
 by forfeiture, 
 surrender or 
 merger of jjre- 
 ceding eatate. 
 
 30. Every contingent remainder existing on the 2nd day 
 of March, 1877, or created since that day or hereafter, shall be; 
 and every contingent remainder, which existed at any time be- 
 tween the 30th day of May, 1849, and the 2nd day of 
 August, 1851, shall be deemed to have been capable 
 of taking effect, notwith.standing the determination by 
 forfeiture, surrender or merger, of any preceding estate of 
 freehold. E. S. O. 1887. c. 100, s. 29. 
 
 IMPROVEMENTS UNDER MISTAKE OF TITLE. 
 
 O 
 
 c 
 
 2! 
 
 
 r 
 
 55 
 
 2 
 
 Persons im- 30. In every case in which a y)erson makes lasting im- 
 toS ah^en' provements on land under the belief that the land is his 
 
 on lands. 
 
 As to cases 
 where, from 
 unskilful sur- 
 vey, a jierson 
 has improved 
 lands after- 
 wards found to 
 belong to his 
 neighbour . 
 
 Rev. Stat. 
 0. 181. 
 
 Plaintiff not 
 to have costs 
 from the time 
 defendant of- 
 fers to give \\x, 
 the lands on 
 receiving the 
 value of nis 
 improvementB 
 
 Proviso. 
 
 own, he or his assigns shall be entitled to a lien upon the same 
 to the extent of the amount by which the value of the land 
 is enhanced by such improvements ; or shall be entitled or may 
 be required, to retain the land if the Court is of opinion or 
 requires that this .should be done, according as may, under all 
 the circumstances of the case, be most just, making compensa- 
 tion for the land, if retained, as the Court may direct. R. S. 0. 
 1887, c. 100, s. 30. 
 
 JH. In case an action for the recovery of land is brought 
 against a person who, after any line or limit has been estab- 
 lished according to The Act respecting the Survey of Lands, 
 is found, in consequence of unskilful survey, to have 
 improved on lands not his own, the Judge before whom the 
 action is tried shall assess or direct the jury to assess damages 
 for the defendant for any loss he may sustain in consequence of 
 any improvement made before the commencement of the action, 
 and also assess or direct the jury to assess the value of the 
 land to be recovered and if the judgment be for the plaintiff, 
 no writ of po.ssession shall issue until the plaintiff has tendered 
 or paid the amount of such damages, or has ofi'ered to release 
 the land to the defendant, provided that the defendant, with- 
 in one month of the date of the judgment pays or tenders to 
 the plaintiff the value of the land so assessed. R. S. 0. 1887, 
 c. 100, s. 31 ; Rev. Rule 787. 
 
 33. In all cases in which the Judge or the jury before 
 whom such action is tried, assess damages for the defendant 
 as provided in the next preceding section, for improvements 
 made upon land not his own in consequence of unskilful 
 survey, and where it satisfactorily appears that the defendant 
 does not contest the plaintiffs action for any other purpose than 
 to obtain the value of the improvements made upon the land 
 previous to the alteration and establishment of the lines accord- 
 ing to law, the Judge before whom the action is tried shall 
 certify such fact upon the record, and thereupon the defendant 
 shall be entitled to the costs of the defence : Provided the 
 
Sec. 38 (1). LAW AND TRANSFER OF PROPERTY. Chap. 119. 
 
 585 
 
 defendant at the time of appearing, gave notice in writing to 
 
 the plaintiff or his solicitor of the amount claimed for such 
 
 improvements, and that on payment the defendant or person in 
 
 possession would surrender the possession to the plaintiff, and 
 
 that the defendant did not intend at the trial to contest y. 
 
 the title of the plaintiff; and if on the trial it be found that improvenienta 
 
 notice was not given as aforesaid, or if there is assessed for the ^re assessed 
 
 defendant a less amount than that claimed, in the notice, or it sum denfand-*^ 
 
 is found that the defendant had refused to surrender posses- ed. 
 
 sion of the land after tender made of the amount claimed, then 
 
 and in such case the Judge shall not certify, and the 
 
 defendant .shall pay costs to the plaintiff; and upon the trial of vvhen no proof 
 any action after such notice no evidence shall be required in tj^j^ requirwi 
 proof of the title of the plaintiff. R. S. 0. 1887. c. 100, s. 32 
 
 PURCHASES OF REVERSIONS. 
 
 33. In the succeeding two .sections the word "Purchase " "f'i''ph«*«''— 
 
 1 11 1 • 1 S^ X i. • X what it shall 
 
 shall mean any kind oi contract, conveyance or assignment, mean, 
 under or by which any kind of property may be acquired. 
 R. S. 0, 1887. c. 100. s. 33. 
 
 . 34. In case any purchase made before the 4th day of ^""* P''oi^<^ndi 
 March, 1868, of any reversionary interest in real or personal 
 estate is sought to be opened or set aside on the ground of 
 undervalue, the onus of proving undervalue .shall lie upon the 
 person seeking to open or set aside the same. R. S. 0. 1887, 
 c. 100, s. 34. 
 
 35. No purchase made after the said date bona fide, and ^"''°'i^®* ^ . 
 
 .,1 L e 1 c • •ii- 11 after March 4, 
 
 Without fraud, oi any reversionary interest m real or personal isesnot 
 estate, shall be opened or set aside on the ground of under- affected by 
 value. R. S. 0. 1887, C. 100, S. 35. undervalue. 
 
 PURCHASER FOR VALUE WITHOUT NOTICE. 
 
 3U. It shall in no case be necessary, in order to maintain the Proof of pay- 
 defence of a purchase for value without notice, to prove pay- ^a°e money 
 ment of the mortgage money or purchase money, or any part unnecessary, 
 thereof. R. S. 0. 1887, c. 100, s. 36. 
 
 ASSIGNMENT TO ASSIGNOR AND ANOTHER OR TO ASSIGNOR'S WIFE. 
 
 31. Any property, real or per.sonal,may be conveyed or assign- Assignment of 
 ed by a person to himself jointly with another person, by the like P^perty to 
 means by which it might be conveyed or assigned by him to and others. 
 another person, and may in like manner be conveyed or assigned i™p- •^°*- 
 by a husband to his wife, and by a wife to her husband alone 
 or jointly with another person. R. S. 0. 1887, c. 100, s. 5 ; 
 c. 122, s. 8. 
 
 DEBENTURES OF CORPORATIONS TRANSFERABLE. 
 
 38. — (1) The bonds or debentures of corporations made pay- Bonds and de- 
 able to bearer, or to any person named therein or beaver, may corporations 
 
If 
 
 686 
 
 Holder may 
 maintain 
 Mtion . 
 
 Chap. 119. LAW AND TRANSFER OF PROPERTY. SeC. 38 (1). 
 
 be transferred by delivery, and if payable to any person or 
 order shall (after general indorsation thereof by sucn person) 
 be transferable by delivery from the time of the indorsation, 
 
 (2) Any such transfer shall vest the property of such bonds 
 or debentures in the holder thereof to enable him to maintain 
 an action thereon in his own name. R. S. O. 1887, c. 122, s. 9. 
 
 [For Assignments ofChoses in Action, see Cap. 51, sec. 58 (5)."] 
 
 FRAUDS IN SALES OR MORTGAGES OF PROPERTY. 
 
 0^ 
 
 I 
 
 c 
 
 
 i 
 
 r 
 
 50 
 
 Liability of 
 vendor or 
 mortgagor for 
 fraudulent 
 concealment 
 of deeds, etc. 
 or falsifying 
 
 Imp. Acts 22- 
 23 v., c. a5, 
 8. 24, and 23-24 
 v. c. 38, ». 8. 
 
 30. If any seller or mortgagor of land, or of any chattels 
 real or personal, or choses in action conveyed or assigned to a 
 purchaser or mortgagee, or the solicitor or agent of any such 
 seller or mortgagor, conceals any settlement, deed, will or other 
 instrument material to the title, or any incumbrance, from the 
 purchaser or mortgagee, or talsifies any pedigree upon which 
 the title depends or may depend, in order to induce him to 
 accept the title offered or produced to him, with intent 
 in any of such cases to defraud, such seller, mortgagor, 
 solicitor or agent shall, irrespective of any criminal liability 
 he may thereby incur, be liable to an action for damages 
 at the suit of the purchaser or mortgagee, or those claiming 
 under the purchaser or mortgagee, for any lo.ss sustained by 
 them or either or any of them, in consequence of the settle- 
 ment, deed, will or other instrument or incumbrance so con- 
 cealed, or of any claim made by any person under such pedigree, 
 but whose right was concealed by the falsification of such 
 pedigree ; and in estimating such damages where the estate is 
 recovered from such purchaser or mortgagee, or from those 
 claiming under the purchaser or mortgagee, regard shall be had 
 to any expenditure by them, or either or any of them, in im- 
 provements on the land. R. S. O. 1887, c 100. s. 37. 
 
 SCHEDULE. 
 
 FORM OF CONVEYANCE BY BENEFICIAL OWNER UNDER SECTION 17. 
 
 day of 
 
 one thousand 
 
 This Indenture made the 
 eight hundred and 
 
 Between (here insert names 
 of parties and recitals, if any,) Witnesseth, that in consideration of 
 
 dollars, of lawful money of Canada, now paid by the said grantee 
 to the said grantor (the receipt whereof is by him acknowledged,) he, the 
 said grantor, as beneficial owner, doth convey unto the said grantee in fee 
 simple, (or otherwise as tlie case tnay be) all, etc. , (parcels). 
 
 In Wit'.iess Whereof, the said parties hereto have hereunto set their 
 hands and seals. 
 
 R. S. 0. 1887, c. 100, Sched. 
 
IF 
 
 LAW AND TRANSFER OF PROPERTY. 
 
 587 
 
 NOTES. 
 
 Corporeal Hereditaments Lie in Orant- At cdmiiiioii law, corporeal hereilitu- 
 iiients were transffrred l)y fcoH'nH'Ht, a('<M)ini>aniiMl liy delivery of poHscssioii of 
 the lanil. By the Stiitute of Fraii(ln, s I, all leaHes, estateH, iiiterestH of free- 
 liolil or terniK of years or any uncertain interest in lands made or created liy 
 livery and seisin only, or l>y parol and not j)ut in writing, were deelare<l to 
 liave the force and eti'ect of leases and estates at will only. S 3 of the present 
 statute now re(|nires a fcotFrnent to he made hy (\cv<\. Incor)ioreal heredita- 
 ments being such things whereof no livery coidd lie had, were said to lie in 
 grant. Various devices were resorted to in order to overcome tiio Tiecessity of 
 lively of seisin or act\ial <lelivery of po.ssession of (Corporeal hereditaments, and 
 lind was more often conveyed \>\ a conveyance o|)('rating umlei- the statute of 
 II ;es, known as a bargain and sale, whereby the vendor stood .seise<l of the loud 
 to the use of the purchaser. After their invention, the legislatinc reipiired 
 siu^h convevances to be enrolled, and other devices, such as a lease and release, 
 w ert' substituted. Ujion a common law convevance, uses could be engrafted 
 M hereby successive estates could be limited fiy way of use, but a conveyance 
 Ipy way of bargain and .sale or other conveyance without livery of seisin 
 exhausted the Statute of uses and the j)ersons in whose favor estates were 
 intended to aiise in the futme did not iicijuire any legal estate in tlu? land, but 
 had to resort to the doctiines of the Court of Chancery to enforce trusts. By 
 the enactment that coiiioreal hereditaments shall now lie in grant, a ciminion 
 law conveyance may lie made upon which future estates may be limited by way 
 iif use, and the pei'.sons to take in succession become entitled, ui)on their rights 
 11 rising, to an actual legal transmissible estate in the land. Ponnerly a feofi'- 
 meiit of a larger estate than the feortor had would work a forfeiture, but now a 
 feoffment has no tortious operation. 
 
 Words of Limitation Unnecessary- I'rior to ISStia convcyanccsof land other- 
 wise than by will were insuflicient to pass estates of inlieritance unless the 
 word " heiis " was usetl in limiting the estate to the giantee. A grant to a 
 man " in fee simple'' woulil have conveyed only a life interest. In limiting 
 estates tail, it was necessary that the woi'ds " heirs of '-l^ body " should be 
 used. Consequentlj' conveyances frequently failed to carry out the intention 
 of the parties, see Ai'mstrong v. Harrison ( 1 8SS) 20 0. R. 174. In wills, a 
 devise, in the absence of a contrary intention, would pass the whole estate of 
 the testator, se R.S.O. c. 1'2,S. s. 7. Section 4 now applies the same rule to 
 conveyances, as to wills. 
 
 Receipt in Deed Sufficient. The object of s. ,'y is to do away with the 
 necessity tif an indorsed receipt and to relieve assignees of securities from 
 en(|uiry. whether the considei-ation money was actually advanced. It will be 
 noticed that by s. 1 (H) the word "conveyance'' includes a mortgage. At 
 common law a formal receipt in the body of a deed estopped the mrties 
 thereto but not strangers ; Harding v. Ambler (1837) 3 M. & VV. 270 ; Rex v. 
 Scammonden (17S9) "2 T. R. 474 : 1 R,R. 7.")2, but in if/iiity it might be shewn 
 that the money had not been paid : Clioppiii v. Chopjiin (172.")) 2 P. Wms. 2fll : 
 Kettlewell v. VVatsoii (1SS4) 2(i Ch. I), ."idl. By the Judicatm-e Act, the rule 
 in equity was adopted. A veceijit for the purchase money endorsed upon the 
 deed was sufficient eviilence of payment of the consideration money to prevent 
 a vendor's lien being established against a purchaser from the grantee who had 
 not notice that the UKiney had not been paid ; Rice v. Rice (lSo3) 2 Drew. 73 ; 
 White V. Wakefield (IBSo) 7 Sim. 40! ; Shropshire Union Ry. & Canal Co. v. 
 Keg. (187.-)) L.R. 7 H.L. 4%, .-)09 ; Bickerton v. Walker (188,-)) 31 Ch. I), lol, 
 I T)}!, Wlien. however, a conveyance was registered, the efl'ect of a receipt in 
 the body of the deed was sufficient under s. 98 of the Registry Act, R.S.O. 
 c. 13(), to prevent a vendor's lien being established against a subse(|uent pur- 
 chaser for value without notice, whose conveyance was registered. An 
 assignee of a mortgage takes the same subject to the e(|uities between the 
 original parties ; Harter v. Coleman (1882) 19 Ch. D. f).3n : Pressev v. Trotter 
 (1878) 20 Or. l.-)4 ; Martin v. Bearman (1880) 4,-) U. C. R. 20.-) ; Wilson v. Kyle 
 (1880) 28 Gr. 104, but it would seem that he will now be entitled to rely upon 
 the receipt contained in the mortgage as proof of the original advance ; Biek- 
 
 la 
 
 I 
 
688 
 
 LAW AND TBANSI'EK OF IMIOI'KUTV. 
 
 O 
 
 1^ 
 
 r 
 5 
 
 > 
 
 Kutiiu'iiv a imrrlm.scr wiis (Mititlcil to ii'ijiiirc lliu 
 loiiveyainc in liis prcsent'e or tluit iif IiIh siilicitor oi- 
 
 iTl.m V. Walker (1SH.-.| :il('li. I). I.".l. altlKuigh H.S.O. c l'_»l s. :«, »<.;i-iii- 
 o|)|iiiSf(l til tliJH view. This ic(ci))t will not In- of any value in favour nf a 
 piirifhuHer ov assignee who has ai't\ial knowledge that the money has not iK'en 
 |iaiil, or who has notice of sus])ieious eireuiustanees wliiili ought to eaiise 
 ini(uiry, if such -nijuiry wnulil lead to the diseoveiy that the money had not 
 l«-en paiil : Keiniedv v. (ireen (IS.Ti) 3 Mvl. it K. tHM) ; Kfttlcwell v. WiUson 
 (I8«4) •_'(»( h. I). (iHo. 
 
 The onaotniciit in faviair of a siiliMei|ut>nt imrcliiiHer is not conHniMl to clninis 
 which iniglit lie made u|ion alleged vendors liens for unpaid purciiase innney 
 or the like. It is sutiicient to give him an ec|iiitalile title in llie sauu' way us 
 if the moncv had lieen acliiallv paid allho\ig|i liis legal title mav lie defective ; 
 .hmes V. Mi'Crath (18HH) Iti o". K, tilT. 
 
 Execution of Deed. 
 
 veiiiloi' to execute the 
 
 agent ; Viney v. Chapliu (ISriT) 4 Drew •J:»7". -2. De (J. & .1. UiS ; He Bellamy lUid 
 
 Metropolitan Hoard of Works (ISH:i) '74 ("h. I). :<H7. This right is' now 
 
 aliTiigated. 
 
 Leases to be Under Seal- Where a lease is for more than three years, or at a 
 rent less than two-thirds of the iiu]iioved value, it nnisl lie liy a sealed instru- 
 ment, otherw ise it is, as a lease, Miid under s. 7, hut it may lie good as tin 
 agreement and if specific peiformance wouhl he granted it is of the same ett'ecl 
 as a lease liv deed ; Walsh v. Lonsdale (IHS-2) -21 (Jh. I).!); Swain v. Ayres 
 (1,SH8)'2()(^ B. I). .")8H, -21 «,». IJ. I). ■1\Y.\\ Strong v. Stringer (IHS!») til L. T. 
 47.'{ : Lowther v. Heaver (lS«!t) 41 Ch. I). •2(i4 ; Allhiisen v. Brooking (1SS4) 'iti 
 Ch. 1), ")tt5 ; Coatsworth v. Johnston (188G) .").'> L. J. (,). B. 'i-iO. 
 
 iSurrendeiM of similar tenancies nnist also lie liy deed, unless they arise hy 
 act or operation of law ; See (iaidt v. Sheppaiil (18S(i) 14 A. K. "JfW ; Hunter'H 
 Real Property Statutes 37. 
 
 Contingent Interests. At common law every giant of an estate in expectants 
 was subject to three re(iuirenu'nts : - 
 
 (1) A iwrtieular estate of tVeehold was leiiuired to support it, 
 
 (2) The estate in expectancy was required t<i vest either during the contin 
 
 uance of the particular estate or eo install/) it was determined. 
 
 (3) A contingent estate coidd not he limited after a fee simple. 
 
 By 8. '29 such estates are now eapahle of taking etfeet notwithstanding tin 
 determination liy forfeittne, suri-enrler or merger of any jireceding estate of 
 freehold, hut in other respects the law is unaltered. 
 
 Executory Interests. Estates which were inca|)alile of taking effect at law 
 liy rea.son of the lules respecting contingent remainders might, liefore the 
 Statute of Uses, lie given effect to as e(|iiitalile estates under the doctrines of 
 the Court of Chancery. The Statutes of Uses chithed them as they arose with 
 the legal estate. Kxecutory interests may lie created either iii/n- rivox or hy 
 win. When created by will they are calle<l execuUiry dcvLses. They are 
 usually classified as springing uses or devises an<l shifting u.ses or devises. A 
 shifting use is one which when it takes eH'ect destroys a piior estate created by 
 the same grant or will, e. g. a grant to A. in fee to the use of B. in fee, but if 
 H. should die witliout issue living at his death, to the u.se of C. in fee. A 
 springing use is one which springs up into existence upon the happening of a 
 specified event, e. g. a grant to A. iii fee to the use of B. in fee on his attainitig 
 the age of twenty-one. 
 
 Possibility. There are two kinds of possibilities, (1) a bare possibility, such 
 us (I tj/f.s niifi-t-stioHiii ov the expectancy of an heir; (2) a p<i.ssiliility coupled 
 with an interest e. g. the inchoate right to dower of the wife of a living person 
 in lands of which he is sei.sed in ])ossession ; Ro.se v. Zinnneiinaii (1H5'2) 3 (fr. 
 i>98 ; Miller v. Wiley (ISGti) KJ (*. P. ;V2!1 ; Allen v. Edinburgh Life Assce. Co. 
 (1877) 25 (ir. 3<K), or a devise to the survivois of several persons ; Roe v. Jones 
 (1789) 3T. R. 88 ; Hyden v. William.son ( 1731* 3 P. Wms 132. 
 
 Right Of Entrjf. At common law rights of entry was not assignable. By 32 
 Henry VIII, c. 9, a sale of any prctenccd rights or titles to lands of which the 
 grantor was out of possession was subjected to a penalty ; Doe d. Williams v. 
 Evans (1845) 1 C. B. 724 ; Marsh v. Webb (1891) 21 O. R. 281 ; 19 A. R. rm-, 
 22 S. C. R. 437. All dealings with rights of entry except by release to the 
 person in possession were dealings with '• pretenced " rights and titles withiri 
 
LAW AND TRANSFER OF PROPERTV. 
 
 589 
 
 the meaning of 3*2 Hrn. VIII c. 0. Since the enactment of section H. u riglit 
 or title wliicli is good in fiict, thiit is, not lictitioiis, is not n nretcnci'd title, 
 Him])ly l)t>cauHo it is a rigiit of entry; Jenkins v. Jones (I'^^Wl " Q- H. P 1'28. 
 
 The right of entry referred to i)y s. 8 is not tiie right of reentry for condition 
 broken whieii passed with a sale of the reversion mider 32 Hen. VllI e. 34, hut 
 an origina' right wiiere there lias l)een a disseisin or where a party has th« 
 right to recover possession an<l has a right of entry, an<l nothing l)Ul that 
 remains ; Hnnt v. Bishop (IS.jS) S Kx. 07.5, 080. 
 
 Disposition Of Such Interests. At common law such interests as those men- 
 tioned in H. S were not alieiial)le iiiltr n'rox. An a.ssignment or a contract to 
 assign them woidd jiowever have l)een enforced in eijuity if made for a valu- 
 al)le consideration ; Fearne (,'ontingent Remainder 3()(i, o.M. And even at law 
 an actual disposition might pass l)y way of estoppel. All siuh interests may 
 now he disposed of by an instrument under seal, subject to tlie provision that 
 no estate tail shall thei'eby be defeated or enlarged, so that a person entitled 
 in expectancy toan estate tail, cannot l)y deed release his right. If it is desir- 
 ed to cut imt his estate, the estate tail must be properly liarieil. 
 
 Grant. The object of s. 9 was to prevent any general warranty of title aris- 
 ing from the woril " grant." In conveyances wlierc exjire.ss covenants were 
 contained as to title, any im]ilication of a covenant was excluded, liut in con- 
 veyances by trustees where there were no covenants as to title the doubts as 
 to what might be im|)lied from the word "grant " deterred tlicni from convey- 
 ing by the use of that word, Sheppard's louchstone ISl — 3 ; Clarke v. Sam- 
 son (i74H) 1 Ves. M). 
 
 Exchange. An exchange at connnon law is a mutual giant of etpial interests, 
 tile one in consideration for the other ; Leith & Smith 300. Such an exchange 
 is made between two jiersons or two .sets of jier.sons and no more. Provost of 
 Kt<m College v. Bishops of Winchester (17741 3 Wils. (.'h. 408. A common 
 law exchange is now obsolete. The word "cxiihange" was the operative word 
 and it created an implied warranty of title, and a right of re-entry in case of 
 the eviction of eillier party. This implied warranty is now abolished. Ex- 
 clianges are now carried out by mutual conveyance!; ; Rertram v. Wichcote 
 (1833) Sim. !)2. 
 
 Grantees take as tenants In common. Upon the death of one joint tenant 
 the survivor takes the estate. I'arties taking under conveyances and 
 wills nuide since 1S34 take as tenants in common, and each is entitled 
 in severalty to an undivided sliare of the estate, unless a cuntiary intention 
 appears. Executors, or trustees, in fee simple, still take as joint tenants, so 
 tliat upon the death of one the survivors can confer a gootl title. 
 
 General words. Similar general words to tho.se mentioned in s. 12 were 
 formerly implied in every conveyance exjiressed to be made in pursuance of the 
 Act respecting Short Forms of CNmveyances, R, S. (). (1887) c. lOii. Since Ist 
 Jidy 1880, every conveyance whether made under the short forms Act or not 
 will be construed as if it contained tlic genca'al words unless a special exception 
 is made therein. A somewhat similar ])rovision 'Was made in England by the 
 Conveyancing Act 1881 (44 & 4") V. c. 41) s. 0. VVithimt general words, every- 
 thing part and parcel of the land conveyed wimld pass under tiie maxim CiijiiH 
 est Ko/iim ejwfxt iisqua ail coeluni. That presumption was however rebuttable. 
 Potts v. Bovine (1889) 10 A.R. 101. Ea.scments also, which were appurtenant 
 to the land, would also pass witlumt general words. And upon a conveyance 
 by the owner of two tenements, ways of necessity, and all ap|)arent and con- 
 tinuous easements which were necessary for the use of the property, would 
 pa.ss ; Watts v. Kelson (1871) L.R. OCh.' 100; Wheehlon v. Burrows (1879) 
 12 1). 31, and also formed roatls althoughnotstrictly ways of necessity ; Brown 
 V. Alabaster (1888) 37 Ch. I). 490; Bayley v. (ireat Western Kv. Co. (1884) 
 26 Ch. D. 4.S4 ; Pearson v. Spencer (1863) 3 B. & S. 701, 1 B. k S. -)71 ; Brig^'s 
 V. Semmens (1890) 19 O.R. .J22. Rights of drainage andof ai(Ue(luct arc witlnn 
 the category of continutms and apparent easements ; Israel v. Leith (1890) 20 
 O.R. 361. The word " lights " enlarges the operation of the grant in the case 
 of new windows as against the grantor and those claiming under him ; Bed- 
 dington v. Altee (1887) 35 Ch. i). 317, 331 ; but only to such light as is enjoyed 
 at the time of the grant under circumstances which would lead to an exi)ecta- 
 tion that the enjoyment of the liglit wouhl be continued and wouhl not be 
 simply precarious ; Birmingham, Dudley and District Banking Co. v. Ross 
 (1888) 38 Ch. D. 293, .307. The word '" yards " was lield to pass the fee in a 
 piece of land not described in the deed ; Willis v. Watney (1882) 30 W.R. 424; 
 
590 
 
 LAW AND liiAJNisFER OF PROPER'IY. 
 
 
 o 
 
 
 r 
 
 II 
 
 I 
 
 and a shingle mill t'lccti-d in the Oeorgiaii Hay and tonneetod by a trannvaj' 
 with tlif land disciihcd, was ht'ld to ))ass ' herewith a'though soii.'; iitK) feut 
 thiTofidiii ; WinHchl V. Fowlii; (ISST) 14 0. ]{. 10± 
 
 ^ The words will not coiuiiiise ))r()|)ertv oii-i{j;hts subsequently acquired by the 
 grant v : Mootli v. Alcock (IST.S) L. R. H Ch. mX 
 
 Bargain and sale by corporation. S. 13 is now of no practical 'iniioitanfic 
 since coi poifal hcrcdilaiiicnts lie in grant. A corporation cannot stand seised 
 to a use and could not, therefore, before the enactment convey by a bargain and 
 and sale. 
 
 Enrolment. Under the St.atiite of Enrolments, 27 Hen. VIII, c. 16, a bar- 
 gain and sale of an estate of freehold was of no etlect unle.is enrolled as therein 
 mentioned. 
 
 Sales free from incumbrances. Notwithstanding s. lo terms will not be im- 
 poM'd on a venilor wliicli he never conteuiplateir; Dickin v. Dickin (ISS'2) .'?(> 
 W.R. 8S7; Ke (ireat N(U'thern Hy. (.'o. and Handerson (188.".) 2.") Ch. 1). 7H8. 
 When; the validity of a mortgage wa^' dis])uted the court ordei-erl that on l)ay- 
 nient into court of the amount claimed and ten jjer cent, additional, the land 
 shouhl absolutely vest in tin' purchaser ; Milford Haven Ry. and Estate Co. v. 
 Mowatt (188")) '28 Ch. I). 402. In one case the Court declined to make an order 
 tl'scharg iig the encuuibrani e created b;. an annuity without the consent of the 
 nuiuiilant ; Patching v. Hull (188-2) :Vi> W.R. 244, Imt .see Dickin v. Dickin 
 (1882) 30 W.R. 887. Where the maintenance of a i)erson of weak mind was 
 charged on land, ]^)yd (]. refu;ied to discliaige the encumbrance unless the 
 whole purchase money was paid into Court ; Re All)ertson (Oct. 17th, 18!)S) 
 (not reporterl). Where the wife of a vendor declined to bar her do« er, the pur- 
 chaser was protected l)y the setting aside of a suliicient portion of the purchase 
 money; Skinner v. Ainsw-irth (187()) 24 t ir. 148. 
 
 Payment into Cotirt. S. 10 is similar to suh-sections 2, 3, 4, ■I, 6 and 7 of 
 s. ('l» of 'I"iu> English (conveyancing Act. It will l)e noticed t'lat the section is 
 not in veiins limited (as the English section is) to matters unaer the Act. 
 
 Implied Covenants. The covenants implied in the E:.^ -isl. Act differ some- 
 what iu form and etl'ect from those contained, in The Short I ')rms of Convey- 
 ances Act. Those covenants extend oidy to the grant(u's owi acts, while the 
 English covenants extend to the acts of any one through whom he derives title 
 otherwi.se than l)y j)urchase for value. 
 
 Covenants Joint and Several. One advantage derived from implying the 
 covenants under the Act is tiiat if there is nion; than one covenantor the 
 covenants a,'e joint and several. In any ordinary Short Form Deed from two 
 or more, the covenants are joint unless apt wok Is, to make them joint and several, 
 are inserted. 
 
 Expresseu to Convey as Benefioial Owner. Words nnist lie introduced into 
 the conveyance, that the |iarly wii, e covenant is desired, co'iveys as beneficial 
 owner, otherwise no covenant will be irnj)lied though it may be clear that he 
 does convey as beneHcial owner. 
 
 Covenants run with the Land. S. 17 (4) is but <leclaratory of the law ; 
 Roach v. Wadham (180")), <i East 289. The fact tiiat the covenantee has 
 obtaiiu'il the covenant by concealment anioiniting ti, fraud will be no defence 
 against a subseipunt purchaser ; David v. Sabiu (1893), 1 Ch. ")23. 
 
 Vai'iation of Covenants. If the covenants are once impbed by the insertion 
 of tile words "as benelicial owner," they cannot be excluded "by a proviso, 
 thougii tiiey may be varied or exten<led ; Williams v. Hathaway (1877), (i Ch. 
 I). 544; nor by notice, even on the convej.iiiee, of an encunibiance or othei 
 fact covenanted against ; Page v. MidlamrRy. Co. (1894) 1 Ch. 11. 
 
 A ventlor selling eomj.ulsorily has the right in insert words limiting the 
 implied words where sucii would convey more than he intended, or could be 
 required, to sell ; Re Peck and London School Board (1893) 2 Ch. 31;"). 
 
 Execution of Powers. A jMiwer of appointment is an authority which ont^ 
 person called the donor gives to another called the donee, 'i'lu; formalities 
 reijuired by the dono!' hcndil be obsci'ved. A power to appoint by (leed can- 
 not be exercised by will ; Sug. Powers, 8th Ed., 209. A nower to appoint by 
 will cannot l)e exercised bv deed taking etloct in the litetinie of tlii! dcnee. 
 Thacker V. Key (18(i9) L.'H. 8 Eq. 409 ; Re (Jollard and Duckworth UHH!') 
 10 O. R. 73."). S. 18 is similar to Imp. Act 22 & 23 Viet. e. 35, s. 12, and dis- 
 i)enses with all formalities required to be observed by a donee in the execution 
 
LAW AND TRANSFER OF PROPERTY. 
 
 anil attestation of a power other than an ordinai-y duod attested l)y two wit- 
 nesses. Where a power i» exercisealilel)y will, tiie will must he executed and 
 attested as reijuired l)y tlio Wills Act (R. 8. O. c. 12S.) 
 
 Release of Powers. S. 1!) is from Dw English Conveyancing Act 1881 s. 52. 
 The <l<iuei: of a power whicli lie might exercise for his own benefit couhl always 
 release it ; !iag. Powers, 8th Ed. 88-90. But a power sim])ly collateral, i.e., 
 a power given to a person wlio liad no estate or int( rest in what lie was em- 
 powered to convey could not he relea.scd, e.g. a power to an executor to sell 
 land ; Diygcs Case (1600) 1 Coke 173 ; West v. Hcrney (1819) 1 Russ. & Myl. 
 431 ; 32 R. R. 237. A power in gross, which is a power wliere the donee has 
 an interest, but tiic power does not atl'ect sucli interest, could be released inde- 
 pendently of .s. 19, e.g. a i)ower given to a tenant for life to appoint llic corpus. 
 Re Radcliti'e, Radclillev. Hewes (1891) 1 Ch. 227 ; Horner v. Swann (1823) Turn 
 & Russ, 430, 24 R. R. 92, even thougli the release will result in a Ijenefit to 
 the donee ; Re Somes, Smith v. Somes (189(1) 1 Ch. 200. 
 
 S. 19 makc.^ no change in the law except as to collateral powers. The .sec- 
 tion does not enable trustees who have a joint power of appointment in the 
 nature of a trust to release tlu ;)ower ; Re Eyre, Eyre v. Kyre (1883) 49 L. 
 T. 2r)9, see Weller v. Ker (IHOO) L. R. 1 H. L. S.c. 11 ; Saul v. Pattinson 
 (188G), 34 W. R. 561. Wliere life tenants who had a power of appointment 
 bj- will, assumed to appoint l)j' deed, and cjovenanted not to revoke the ap])oint- 
 nient, it was held that the apj)ointee had not a good title ai. I that s. 19 did 
 not help the case. Re Collard and Duckworth (1889) 16 O.R. "35. 
 
 Mistaken payment to Tenant for life. S. 20 was introduced to alter the law- 
 laid down in Cockerell v. Cholmcley (1830) 1 Russ. ft; Myl. 418, 1 CI. & Fin. 
 60, 36 R.R. 16, wliere a sale was declared invalid l)ocause of the tuistaken pay- 
 ment. 
 
 Auctions of Estates. Ss. 21-26 aie taken from Imp. Statute 3C & 31 Viit. 
 e. 48. The Courts of Law held sales where puffers were eniploj'ed illegal ; 
 Howard v. Castle (1796) 6 T. R. 642, 3 R. R. 296, and the Courts of Equity 
 under some circumstances gave effect to them ; Mortimer v. Bell (1865) L. R. 
 10 Ch. 10. The rule at lav.- was adopted. There is a distinction between a 
 reserved bid, and a reserved rigiit to bill ; <iilliat v. Gilliat (1869) L. R. 9 
 Ei{. 60, If the seller wishei to have a reserved bill and the rigiit to bid him- 
 self, he siiould insert both in the conditions of sale, see Uinnock v. Hallett 
 ;iK66) L. R. 2 Ch. 21. A puffer is a person who bids at a sale, lint doe:) not 
 intend am' -s not liound to complete the purchase ; Shimmim v. Bellew (1807) 
 Ir. R. 1 V. 2Hit. Where the vendor reserved the light to make one bid, and 
 the auction -r with liis sanction bill three times, and then tiie vendor stated 
 'vhat the lese -vod pi ice was, and the purchaser then bid be"oiid that price, 
 the jiurchaser was held to be at liberty to avoid the sale ; i'arfitt v. Jeiison 
 (1877) 46 L. J. C. P. 529. But the venik.r is rot responsilili' for sham liida 
 made without his knowledge or that of tlie auctioneer ; Union Bank v. Mun- 
 .ster (1887)37Ch. I). ,-)!. 
 
 Release of Rent Charge. Under the old law, the effect of a release of part of 
 the land was that the charge would he gone. The effect of the present section 
 27 is; 
 
 (a) Where one person is the owner of the whole of the land subject to the 
 
 charge, and sells a j)art, with the coneurrence of the person entitled 
 
 to the charge, the charge is thereafter recoverable in full out of the 
 
 unreleased part. 
 
 (/<) Where there are several owners, and all the owners of the unreleased 
 
 part concur, the result is the same. 
 ((•) Where the owner of any portion of the land remaining unreleased does 
 not concur, a proportionate ))art only can be recovered from him ; 
 Booth V. Smith (1884) 14 Q. B. I). 318. 
 
 scintilla Juris. S. 28 was enacted merely to remove doubts as to the opera- 
 tion of the statutes of uses. Thuresson v. Thuresson (1899) 30 (J. R. 504. 
 
 Contingent Remainders. A contingent remainder was required to tc.ke effect 
 in possession on tlic termination of the particular estate or eo in^huili, that it 
 determined. Contingent remainders, miglit therefore be defeated by the tenant 
 for life forfeiting or surrendering his estate, or by his acquiring the reversion 
 or ultimate remainder so as to etlect a merger. To jnevent this, trustees to 
 preserve contingent remainders were appointed by well drawn settlements. 
 S. 29 obviates tiie necessity for their appointment in the three cases of forfeit- 
 
 591 
 
592 
 
 LAW AND TRANSFER OF PROPERTY. 
 
 o 
 
 7?- 
 < 
 
 r 
 
 I 
 
 00 
 
 lire, surrender or merger of the particular estate. A contingent remainder 
 may Htill, liowever, l)e defeated by the natural expiration of the particular 
 estate, as l)y the deatli of the tenant for life. 
 
 Improvements under Mistake of Title, Compensation will not be allowed for 
 improvements made pending tiie action. 0"<irady v. McCati'rav (1882) i O.R. 
 309. A purchaser at a tax sale which is set aside is entitled to be compen- 
 sated ; Hai.sley v. Somers (1887) 13 0. R. 600. The lien is limited to the 
 amount of theeniianced value of the land at the date of action ; Munsie v. Lind- 
 say (1886) 11 O. R. 520, ")'i9. The clearing of land for farming purposes is an 
 improvement; Robinet v. Pickering (1879) 44 U.C. R. 337, and so is the 
 erection of a wall or a fence ; Morton v. Lewis (1866) 16 C. P. 483. In esti- 
 mating the amount of the lien, a fair occupation rent should be charged on 
 tiie full increased value and interest should be allowed on the actual cost or 
 proj)er outlay for lasting improvements as an offset ; .Munsie v. Lindsay (1886) 
 11 O. R. 520. Tiie improving occupant cannot l)e charged witli protits 
 made by him ; Connnrs. Queen victoria Park v. Colt (1895) 22 A. R. 1. 
 
 S. 30 applies only to a ease of improvements on land wholly belonging to 
 anotlier person to which the improving occupant turns out to have no claim or 
 title. It does not apply to tlie case of a purchaser who, though his deed jjro- 
 fesses to grant an estate in fee, only takes an ecjuity of redemption, there 
 being a mortgage outstanding ; Beaty v. Shaw (1888) 14 A. R. 600. 
 
 Unskilful Survey. A defendant who employs a man who is a public laud 
 surveyor to P'.ake the survey for him, is entitled to com])ensation for an 
 unskilful survey made by sucli surveyor. The establisiiing of tlie line or limit 
 according to The Surveyor's Act is not a condition prece<lcnt to the applica- 
 tion of s. 31 ; Phnnb V. Steinhoff (1882) 2 (). R. 614; but theerrormustari.se 
 from lack of skill and not from wrong instiuctions ; Doe d. Mouli! v. Canipliell 
 (1851) 8 U. C. R. 19. The cost of tlic improvements will not l)e allowed but 
 their value ; Plumb v. Steinholl' (1882) 2 (). R. 614, (il7. 
 
 Purchases of reversions. SS. 33-35 an; from Imperial Act 31 it 32 Vict. c. 4. 
 The words " unfair dealing" follow the word.s " witliont fraud " in the section 
 corresponding to s. 35, and the word "merely"' precedes tlie words "on the 
 ground of undervalue." Mere inade(iuacy of pi'ice was fc'itnerly sutHcieiit to 
 entitle an expectant heir to apply to a court of ecjuity to set aside a sale of a 
 reversion, and tlie onus of proving the transaction fair and the price sufficient 
 was on tlie purcha.ser; Siielly v. Nash (1818) 3 Madd. 2.32. The sections have 
 in no ilegree whatever altered the onus prohdiidi in those eases which rai.se 
 from the circumstances or conditions of the jtarties contracting — weakness on 
 the one side, usury on the other, or extortion, or advantage taken of tiiat 
 weakness — a presumption of fraud. Fraud does not here mean deceit or cir- 
 cumvention; it means an uneon.seientious use of tiie power arising out of tli';se 
 circumstances and conditions, and when the relative positioiiof the paitiesis such 
 as prima /aril' to raise this presumption, the transaction cannot stand unless the 
 person, claiming the benefit of it, is able to re|)el the i)resum))tion by coiitiary 
 evidence, proving it to have been in jjoiiit of fact fair, just and reasonable; 
 Aylesford (Earl) v. Morris (1873) L.R. 8 Ch. 484; see Waters v. Donnelly 
 (1884) 9 O.R. 391. Tile reversioner should, as a rule, have competent, inde- 
 pendent advice, but in tlie ab.sence of any reason for su.specting fraud, the 
 want of advice alone would not justify overturning a transact i<in carried (Uit 
 fairly and wliich secured to the reversioner the sum lixcd as the fair value nf 
 • his right; O'Rorke v. Bolingbroke (1877) 2 A\)\>. Cas. 814, 838. Wliere an heir 
 deals, not behind the liack of his father, liut with his sanction and assistance, 
 and has all the protection wiiicii iiis father can give iiim he is not entitled to 
 relief as if the contract had been entered into without such ))arental jirotection ; 
 King V. Hamlet (1834) 2 Myl. & K. 456; 3 CI. & F. 218; .39 R.R. 24. 237. 
 Taliiot V. Stainfortii (1860) 1 J. & H. 484, but where a son was not depcmlent 
 upon his fat!it"r, and liad no expectations from him, and botii were illiteiate, 
 the knowledge of the fatlior was not sufficient co render a sale uninipeacimble; 
 Morey v. Totten (1857) 6 Or. 176. If the price is thought to be fair and lilieiid 
 at the time tlie transaction is entered into, the sale will not lie set aside siiould 
 it turn out fnmi a latent effect, e.g. tlie illness and early <leath conse(|uenl 
 thereon of the life tenant, to be inade<|uale; O'Rorke v. Holingliroke (1877) - 
 Apj). Cas. 814, 836. During the coiitinuanee of the same situation ,n which 
 the rever8i(mer entered into tlie contract, ac(|uiescen(!e goes for nolliing, the 
 same distress which pressed him to enter into the contract is presumed to pre- 
 vent iiim from coming to set it aside; IJeyno/i v. Cook (1875) L.R. 10 Ch. 38tt 
 Fry V. Lane (1888) 40 Ch. 1 312. 
 
LAW AXD TRANSFER OF PROPERTY. 
 
 593 
 
 Neither the reiieal of tlio usury laws, nor tlio enactment of tlie sections under 
 consideration has made any dirt'erence in the jurisdiction of tiu' c(un't to set 
 aside unconscionahle liaryains wiuue tliere is fraud in tiie sense ,il)ove (lcseril>ed. 
 Where a reversioner, just "21, who w.is in dittieulties, horrowed fI/50 on his 
 reversion and executed securities for t"i(M) with interest at "iO |)er cent. re(hi- 
 ciblo to 10 ))er cent, on punctual payment, the securities wcie ordered to stand 
 as securitj' for the money actually advanced and ."> per cent, interest; Miller v. 
 Cook (1S70) L.R. 10 K(|. 041, which ease also shew.s that the advice of an inde- 
 pendent solicitor will not necessarily make tlie transaction good. 
 
 Purchase for value without notice. S. .36 is a departiu'e from the Knglish 
 Rule which requiied the purchaser to negative notice before he paid his whole 
 punhase mouev: I'rice v. Rrady (18()!») 1(> (ir. .376; Harvey v. .Smith (1864) 
 2 K. et A. 4S0;'lVterkin v. Macfarlane (1S7!)) 4 A.R. ir), 60. 
 
 Assignment to Assignor. At common law a man could not convey either real 
 or personal property to himself or his wife. Under the Statute of Uses, real 
 property could be conveyed to a grantee to uses to liold to the \ise of the 
 grantor or his wife. Rut to etl'ectuate the same object with leaseholds or other 
 personal property, two conveyances wei'e necessary until "29 \'ict. c. '28, s. 19 
 taken from Lord St. Leonard's Act, 22-2.S Vict. c. S."), s. "21. Conveyances from 
 a lnisl)and to his wife were however supported as declarations of tiust ; Radde- 
 levv. Baddelev (1878) 9 Ch. 1). 113; Fox v. Hawkes (1879) 13 Ch. 1). 822; 
 VVhitehead v. Whitehead (1887) 14 O.R. 021 ; Jones v. Mctiratli (1887) 15 O. 
 R. 189, and conversely a conveyance bj- a wife of her separate estate to her 
 husl)and Mas sutlicient to convert her into a trustee for him ; Sanders v. Mais- 
 imry (1S82) 1 O.R. 17S. 
 
 Debentures of Corporations Transferable. S. 38 was until tlie revision in 
 1897 part of The Mercantile Amendment Act. What is a debenture ? Lind- 
 lev J. said in Rritish India Steam Navigation Co v. Inland Revenue Comnns. 
 (1881 ) 7 Q.R.I). K)."); " Now what the correct meaning of debenture is, I do 
 " not know. I do not find any particular definition of it. We know that 
 " there are various classes of instruments, which are commonly called ' deben- 
 " tures.' Vou :!i'iy have mortgage <lebentures, wliicii are charges of some kind 
 "on property; vou may have debentures which are bonds, and if this instru- 
 " ment were undcu' .seal it would be a debenture of that kind; you may have a 
 " debenture which is nothing more than an ai^knowledgment of indebtedness 
 "and you may have an instrument like this, which is .something more — it is a 
 " statement of two Directors that a company will ))ay. I think any of these 
 " things may be debentures." Sec also Re Florence Land Co., Kx parte Moor 
 (1878) 10 Ch. 1). ")30. As a matter of definition, "debenture" merely means 
 ap instrument which shews that the party owes and is bound to pay ; Re 
 Imperial Land Co. (1871) L.R. 11 Ki{. 478. Any document which either creates 
 or acknowledges a debt is a debenture; Levy v. Alien orris Co. (1888) 37 ("h. 
 1). 20(). Ktymologically debenture is but debt "writ large" per Roj'd C, 
 Bank of Toronto v. Col)ourg Ry. Co. (1884) 7 O.R. 1, 7. The law imiiorts 
 as a iiredominant characteristic to these documents the (juality of negotiability, 
 enabling the person hohling them to recover witlumt regard to any equities 
 that might exist between the (Jomjiany and prior holders or the original 
 obligees, ib. p. 8; L'onilon Joint Stock Rank v. Simmons (1892) A. C. 201; 
 but see 15 L.(|J.R. ISO. Documents under the corporate seal of a Company in 
 the form of an acknowledgment of <lebt payalile to the Rank of Toronto or 
 order v. ere held to bo more of the nature of promissory notes than mortgages, 
 though they were, by statute, a charge on all the properties of the company, 
 and the fact that the payee's name was written in after their execution dicl 
 not invalidate them; Rank of Toronto v. Cobourg Ry. Co. (1884) 7 O.R. 1. 
 
 It is not necessary that there should be a serial issue of documents to consti- 
 tute them debentures; Kdmunds v. Hlaiiia Furnaces Co. (1897) 36 Ch. 1). 215. 
 
 Frauds on Sales and Mortgages. S. 39 is of no great practical importance in 
 Ontario, owing to the provisions of the Registry and Chattel Mortgage Acts. 
 
 As to Criminal Liability, see Criminal Code s. 370. 
 
 I 
 i I 
 
 N 1 
 
CHAPTER 121. 
 
 An A ^t respecting Mortgages of Real Estate. 
 
 O 
 
 r 
 
 Interpretation, s. 1, 
 
 PART I., 8s. 2-17. 
 
 Obligation to transfer mortgage, 
 
 8. 2. 
 Inspection of title de^ids, s. 3. 
 Application of insurance money, 
 
 8. 4. 
 
 Implied covenants, ss. 5-7. 
 Release of equity of Redemption 
 
 without Merger, ss. 8-10. 
 Assignment by executor.?, s. 11. 
 Discharge of mortgage may be 
 
 MADE at any time, 8. 12. 
 EFFEtT OF ADVANCE ON JOINT AC- 
 COUNT, 8. 13. 
 
 Receipts of mortgagee or .sur- 
 vivor OF TWO OR MORE MORT- 
 G/IGEES, ETC., TO BE EFFECTUAL 
 DISCHARGES, 8. 14. 
 
 Right of mortgagee to distrain 
 
 LIMITED, 88. 15, 16. 
 
 Payment after default with- 
 out NOTICE, 8. 17. 
 
 PART II., 88. 18-30. 
 
 Power of .sale and incidental 
 
 POWERS to be implied, 8S. 18- 
 
 29. 
 Taxation of costs, ss. 30, 32. 
 PART III., 88. 31-34. 
 Re.striction as to proceedings on 
 
 mortgages, 8. 31. 
 Payment in terms of notice to be 
 
 accepted, 8. 32. 
 Defence of purchase for value 
 
 without notice. 8. 33. 
 Time within which certain .sales 
 
 may be questioned, 8. 34. 
 
 r 
 5 
 
 53 
 
 Interpreta- 
 tion. 
 
 "Property.' 
 
 " Land." 
 
 HER MAJESTY, by and with the advice and concent of 
 the Legislative As.sembly of the Province of Ontario, 
 enacts as follows : — 
 
 1 . Where the words following occur in this Act, they shall 
 be construed in the manner hereinafter mentioned, unless a 
 contraiy intention appears — 
 
 1. "Property" includes real and personal property, and any 
 debt, and any thing in action, and any other right or interest. 
 
 2. " Land " includes tenements and hereditaments, corporeal 
 or incorporeal ; and houses and other buildings ; also an un- 
 divided share in. land. 
 
 " Convey 
 «nce." 
 
 tPX 
 
 3. " Conveyance " includes assignment, appointment, lease, 
 settlement, and other assurance and covenant to surrender, 
 made by deed, on a sale, mortgage, demise, or settlement of 
 any p)'opei'ty or on any other dealing with or for any property; 
 and " convey " has a meaning corresponding with that of con- 
 veyance. 
 
 4. "Mortgage" includes any charge on any property for secur- 
 ing money or money's worth ; and " mortgage money " means 
 money or money's worth, secured by a mortgage ; and " inort- 
 
 Mc'cgagor." g^gor " includes any person from time to time deriving title 
 
 [594] 
 
 'Convey." 
 
 ' Mortgage 
 Mortgage 
 
Sec. 4 (1). 
 
 MORTGAGES OF REAL ESTATE. 
 
 Chap. 121. 
 
 596 
 
 under the original mortgagor, or entitled to redeem a mortgage, 
 according to his e.state, interest, or right, in the mortgaged pro- 
 perty ; and " mortgagee " includes any person from time to time "Mortgagee." 
 deriving title under the original mortgagee. 
 
 5. "Incumbrance" includes a mortgage in fee, or for a less <'i,icum- 
 estate, and a tru.st for securing money, and a lien, and a charge brance." 
 of a portion, annuity or other capital or annual sum ; and 
 "incumbrancer" has a meaning corresponding with that of in- "incum- 
 cumbrance, and includes every person entitled to the benefit ^•'''"'^•^'■•" 
 of an incumbrance, or to require payment or discharge thereof. 
 R. S. O. 1887, c. 102, s. 1. 
 
 PART I. 
 
 58. — (1) Where a mortgagor is entitled to redeem, he shall, Obligation on 
 by virtue of this Act, have power to require the mortgagee, ^anlfefln-'" 
 instead of giving a certificate of payment or re-conveying, and stead of re- 
 on the terms on which he would be bound to re-convey, to conveying, 
 assign the mortgage debt and convey the mortgaged property anT^^'v.*! 
 to any third person, as the mortgagor directs ; and the mort- 41, s. 15. 
 gagee shall, by virtue of this Act be bound to assign and 
 convey accordingly. R. S. 0. 1887, c. 102, s. 2 (1). 
 
 (2) The right of the mortgagor under this section to require Imp. Act, 46 
 an assignment as aforesaid shall belong to and be capable of o'gg g. 12. 
 being enforced by each incumbrancer, or by the mortgagor, 
 notwithstanding any intermediate incumbrance ; but a requisi- 
 tion of an incumbrancer shall prevail over a requisition of the 
 mortgago.', and as between incumbrancers a requisition of a 
 
 prior incumbrancer shall prevail over a requisition of a sul - 
 sequent incumbrancer. 60 V. c. 15, Sched. A (23). 
 
 (3) This section does not apply in the case of a mortgagee 
 being or having been in possession. 
 
 (4) This section shall have effect notwithstanding any stipu- 
 lation to the contrary. R. S. 0. 1887, c. 102, s. 2 (2, 3). 
 
 J{. — (1) A mortgagor, as long as his right to redeem nuosists, Power for 
 shall, by virtue of this Act, be entitled from time to time, at mortgagor to 
 reasonable times, on his request, and at his own cost, and on deeds! 
 payment of the mortgagee's costs and expenses in this behalf, imp. Act, 
 to inspect and make copies or abstracts of or extracts from the ** fJ"*^ ^^^ 
 documents of title relating to the mortgaged property in the " ' 
 custody or power of the mortgagee. 
 
 (2) This section applies only to mortgages made after the 
 1st day of July, 188G, and shall have effect notwithstanding 
 any stipulation to the contrary. R. S. O. 1887, c. 102, s. 3. 
 
 4. — (1) All money payable on an insurance to a mortgagor insurance 
 shall, if the mortgagee so requires, be applied by the mortgagor fj^p** Act 
 in making good the loss or damage in respect of which the s. 23^ 
 money is received. 
 
596 
 
 Chap. 121. 
 
 MORTGAGES OF REAL ESTATE. 
 
 Sec. 4 (2). 
 
 (2) Without prejudice to any obligation to the contrary 
 imposed by law or by special contract, a mortgajjee may 
 require that all money received on an insurance be applied in 
 or towards the discharge of the money due under his mortgage. 
 R. S. O. 1887, c. 102. s. 4. 
 
 Covenants to 
 be implied. 
 
 Imp. Act, 8, 7. 
 
 o 
 c 
 
 i 
 
 03 
 
 On mortgage, 
 by beneficial 
 owner. 
 
 Rev. Stat. 
 0. 126. 
 
 On mortgage 
 of leaseholda, 
 by beneficial 
 owner. 
 
 Validity of 
 lease. 
 
 5. There shall, in the several cases in this section men- 
 tioned, be deemed to be included, and there shall in those several 
 cases by virtue of thi.s Act be implied, covenants to the effect in 
 this section stated, by the pei'son or by each person who conveys, 
 as far as regards the subject-matter or share of .subject-matter ex- 
 pressed to be conveyed by him, with the person, if one, to 
 whom the conveyance is made, or with the pei-sons jointly, if 
 more than one, to whom the conveyance is made as joint 
 tenants, or with each of the persons, if more than one, to 
 whom the conveyance is made as tenants in common, that 
 is to say : — 
 
 (ft) In a conveyance by way of mortgage, the following 
 covenants by the person who conveys, and is 
 expressed to convey as beneficial owner, namely ; 
 
 For payment of the mortgage money and interest, and 
 observance in other respects of the proviso in the 
 mortgage ; 
 
 Good title ; 
 
 Right to convey ; 
 
 That, on default, the mortgagee shall have quiet possession 
 of the land ; 
 
 Free from all incumbrances ; 
 
 That the mortgagor will execute such further assurances 
 of the said lands as may be requisite ; and 
 
 That the mortgagor has done no act to incumber the land 
 mortgaged ; 
 
 According to the tenor and effect of the several and respec- 
 tive forms of covenants for the said purposes set 
 forth in Schedule B to The Act respecting Short 
 Forms of Mortgages. 
 
 (b) In a conveyance by way of mortgage of leasehold 
 property, the following further covenant by the 
 person who conveys, and is expressed to convey, 
 as beneficial owner, namely ; 
 
 That the lease or grant creating the term or estate for 
 which the land is held is, at the time of convey- 
 ance, a good, valid, and effectual lease or grant of 
 the land conveyed, and is in full force, unfoi'feitea, 
 and unsurrendered, and in nowise become void, or 
 voidable, and that all the rents reserved by, and 
 
Sec. 9. 
 
 MORTGAGES OF HEAL ESTATE. 
 
 Chap. 121. 
 
 597 
 
 all the covenants, conditions and agreements con- 
 tained in, the lease, or grant, and on the part of 
 the lessee or grantee and the persons deriving title 
 under him to be paid, observed, and performed, 
 have been paid, observed and performed, up to the 
 time of conveyance ; 
 And also, that the person so conveying, or the persons Payment of 
 deriving title under him, will at all times, as long rent and iier- 
 
 • iv -J. £ lU _ formance of 
 
 as any money remains on the security oi the con- covenants, 
 veyance, pay, observe, and perform, or cause to be 
 paid, observed and performed, all the rents reserved 
 by, and all the covenants, conditions and agreements, 
 contained in the lease or grant, and on the part 
 of the lessee or grantee, and the persons deriving 
 title under him, to be paid, observed and per- 
 formed, and will keep the person to whom the 
 conveyance is made, and those deriving title under 
 him, indenmitied against all accidents, proceedings, 
 costs, charges, damages, claims and demands, if any, 
 to be incurred or sustained by him or them, by 
 reason of the non-payment of such rent, or the 
 non-observance or non-performance of such cov- 
 enants, conditions and agreements, or any of them. 
 R. S. O. 1887, c. 102, s. 5. 
 
 <». In a mortgage, where more per.sons than one are: implied cove- 
 expressed to convey as mortgagors, or to join as covenantors, "*"''^ '" "?°r'" 
 the implied covenants on their part shall be deemed to be and several, 
 joint and several covenants by them ; and where there are mure Imp. Act, 
 mortgagees than one, the implied covenant with them shall be '* ^^• 
 deemed to be a covenant with them jointly, unless the amount 
 secured is expressed to be secured to them in shares or distinct 
 sums; in which latter case the implied covenant with them 
 shall be deemed to lu.' a covenant with each severally in 
 respect of the share or distinct sum secured to him. R. S. 0. 
 1887, c. 102. s. (5. 
 
 7. The preceding two sections apply only to mortgages made Application of 
 after the 1st dav of Julv, 1886. R. S. O. 1887, c. 102, s. 7. ^ ' '' 
 
 88. 5, 6. 
 
 8. 
 
 Any mortgagee of freehold or leasehold property, or any MortKagee of 
 
 !)rop(Tty, etc.. 
 
 assignee of such mortgagee, may take and receive from the 
 mortgagor or his assignee a release of the equity of redemption hiay receive a 
 in such property, or may purchase the same under any judg- ^'^|^^'|^'j|. '**''•• 
 ment or decree or execution without thereby merging the mergerofdebt. 
 mortgage debt as against any subsequent mortgagee or person 
 having a charge on the sc-me property. R. S. O. 1887, c. 102, 
 8. 
 
 9. In case siicli prior mortgagee or his assignee ac(iuires where mnrt- 
 the equity of redemption of the mortgagor in the manner afore- »»»?« acouirea 
 said, no subsequent mortgagee or his assignees shall be entitled demption,"^^ 
 
698 
 
 Chap. 121. 
 
 MORTGAGES OF REAL ESTATE. 
 
 Sec. 9. 
 
 a 
 
 c 
 
 r 
 
 03 
 77 
 
 Bubsequent to foreclose or sell such property without redeeming or selling, 
 "" t^tf'Jfr ""' •''"^J®^^ ^^ ^^^^ rights of such prior mortgagee or his assignee, in 
 foreclusc or the same manner as if such prior mortgagee or his assignee had 
 Bell property not acquired such equity of redemption. E. S. 0. 1887, c. 102, 
 
 deeming, etc. ^' "^• 
 
 Priority I0. The preceding two sections shall not affect any priority 
 
 try faws not ^^' chiim which any mortgagee may have under the registiy 
 
 to be affected. laWS. R. S. 0. 1887, C. 102, 8. 10. 
 
 Executors of 
 mortgagee 
 may aHsig i, 
 etc. 
 
 1 1 . Where a person entitled to any freehold land by way 
 of mortgage has departed this life, and his executor or adminis- 
 trator has become entitled to the money secured by the mort- 
 gage, or has assented to a bequest thereof, or has assigned the 
 mortgage debt, such executor or administrator, if the mortgage 
 money was paid to the testator or intestate in his lifetime, oi* 
 on payment of the principal money and interest due on the 
 mortgage, or on receipt of the consideration money for the 
 assignment, may convey, assign, release or discharge the mort- 
 gage debt and the mortgagee's estate in the land ; and such 
 executor or administrator shall have the same power as to any 
 portion of the lands on payment of some part of the mortgage 
 debt, or on any arrangement for exonerating the estate, or any 
 part of the mortgage lands, without payment of money ; and 
 such conveyance, assignment, release or discharge shall be as 
 effectual as if the same had been made by the person having 
 the mortgagee's estate. R. S. O. 1887, c. 102, s. 12 ; c. 110, s. 16. 
 
 Certificate of 1 <•>_ Every certificate of payment or discharge of a mortgage, 
 to'be'valid*! iit ^r of the conditions therein, or of the lands or of any part of 
 whatever time the same, or of any part of the money, by the mortgagee, or his 
 assignee, his heirs, executors, administrators, or assigns, or any 
 one of them, at whatsoever time given, and whether before or 
 after the time limited by the mortgage for payment or perform- 
 ance, shall, if in cinformity with The Registry Act, be valid, to 
 all intents and purposes whatsoever. R. S. 0. 1887, c. 102, s. 
 13; c. 110, s 17. 
 
 given. 
 
 Rev. Stat, 
 c. 136. 
 
 ni). 
 45 V 
 B. CI 
 
 Effect of ad- I JJ. — (1) Where in a mortgage oi- an obligation for pay- 
 acwun^^etc'."' ™ent of money, or a transfer of mortgage or of such obli- 
 I A t44 gfl't'ion, the sum, or any part of the sum, advanced or owing is 
 c. 41, expressed to be advanced by or owing to more persons than 
 on^ out of money, or as money, belonging to them on a joint 
 account, or where a mortgage, or such an obligation, or such a 
 'transfer is made to more persons than one, jointly, and not in 
 'shares — the mortgage money, or other money or money's worth, 
 ■ for the time being due to those persons on the mortgage or 
 obligation, shall be deemed to be and remain money or money's 
 worth belonging t') those persons on a joint account, as between 
 them and the moi'tgagor or obligor ; and the receipt in writing 
 of the survivors or last survivor of them, oi' of the personal 
 representative 3 of the last survivor, shall be a complete dis- 
 
Sec. 16 (1). 
 
 MORTGAGES OF REAL ESTATE. 
 
 Chap. 121. 
 
 599 
 
 charge for all money or raoney'.s worth for the time being due, 
 notwith.standing any notice to the payer of a severance of the 
 joint account. 
 
 (2) Thi.s section applies only if and as far as a contrary 
 intention is not expressed in the mortgage, or obligation, or 
 transfer, and .shall have effect subject to the terms of the mort- 
 gage, or obligation, or transfer, an<l to the jirovisions therein 
 contained. 
 
 (3) This section applies only to a mortgage, or obligation, 
 or transfer made after the 1st day of July, 188G. R. S. 0. 
 1887, c. 102, s. 14. 
 
 1 4. The bona fide payment of any money to and the receipt Receipts of 
 thereof by any person to whom the same is payable upon any trusteea, 
 "express or implied trust, or for any limited purpose, and such etc., or aur-' 
 payment to and recei]>t by the survivor or survivors of two or vivor, to be 
 
 '•^ . Ill ii I'-ii effectual dis- 
 
 more mortgagees or holders, or the executors oi- administrators charges. 
 of such survivor, or their or his assigns, shall effectually dis- 
 charge the person paying the same from seoing to the applica- 
 tion or being answerable for the misapplication thereof, unless 
 the contrary is expressly declared by the instrument creating 
 the security. R. S. 0. 1887, c. 102, s. 15. [See also Cap. 1Q9, 
 sec. 9.] 
 
 1 5. The right of a mortgagee to distrain for interest in Right of 
 arrear upon a mortgage, shall be limited to the goods and mortgagee to 
 chattels of the mortgagor, and as to such goods and chattels, limited. 
 
 to such only as are not exempt from seizure under execution. 
 This section .shall not apply to mortgages existing on the 25th 
 day of March, 1886. R. S. 0. 1887, c. 102, s. 16. 
 
 H». — (1) As against creditox's of any moi-tgagor or person Mortgagee's 
 in possession of mortgaged premises under a mortgagor, the "ght of dia- 
 right, if any, to distrain upon the moi-tgaged premises for to one year's 
 arrears of interest or for rent, in the nature of or in lieu of ["^^''^st or 
 interest under the pnivisions of any mortgage executed 
 after the 23rd day of April, 1887, shall he restricted to one 
 year's arrt rs of .such interest or rent, but this restriction 
 shall not apply unless some one of such creditors shall be an 
 execution creditor, or unless there shall be an assignee for the 
 general benefit of such creditors appointed before lawful sale 
 of the goods distrained, nor unless the officer executing such 
 writ of execution, or such assignee shall, by notice in writing 
 to be given to the person distraining, or his attorney, bailiff, 
 or agent, l)efore such lawful sale, claim the benefit of the said 
 restriction, and in case such notice is .so given, the distrainor 
 shall relinquish to the officer or as.signee the goods distrained, 
 upon receiving one year's arrears of such interest or rent and 
 his reasonable costs of distress, or if such arrears and costs 
 shall not be paid or tendered he shall sell only so much of the 
 goods distrained as shall be necessary to satisfy one year's 
 
 rent. 
 
600 
 
 Chap. 121. 
 
 MORTGAGES OF REAL ESTATE. 
 
 Sec. 16 (1). 
 
 o 
 
 c 
 r 
 
 03 
 
 J? 
 33 
 
 arrears of such interest or rent and the reasonable costs of 
 distress and .sale, and shall thereupon relinquish any residue 
 of goods, and pay any residue of moneys, proceeds of goods 
 so distrained, to the said officer or assignee. 
 
 Reimburse- (2) Any officer executing a writ of execution, or an a.ssignee 
 
 ment of officer ^ff\iQ shall pav anv money to relieve goods from distre.ss under 
 
 the next preceding subsection, shall be entitled to reimburse 
 
 himself therefor out of the proceeds of the sale of such 
 
 goods. 
 
 Notice of sale. (3) Goods distrained for arrears of interest or rent, as 
 aforesaid, shall not be sold except after such public notice as 
 is now required to be given by a landlord who sells goods 
 distrained for rent. R. S. O. 1887, c. 102, s. 17. 
 
 Payment of 11. — (1) Where default has been made in the payment of 
 
 d'^f"''Vr' ^^'"'^ ^^^ i)rincipal money .secui'ed by any mortgage made subse- 
 quent to the 1st day of July, 1888, according to the terms 
 and conditions ♦hereof, the same may be paid at any time 
 thereafter without previous notice to the person entitled to 
 receive the same, and without the payment of any interest in 
 
 Proviso. lieu of such notice ; Provided always, that if in or by the said 
 
 mortgage or otherwise there has been any express agreement 
 with respect either to such notice or to interest to he paid in 
 lieu thereof, such agreement shall be binding and have the 
 
 Proviso. same effect as if this section had not been passed ; Provided 
 
 moreover, that this section shall not be held as applying to 
 any default in the payment of principal money that may have 
 become due or payable onlj' by reason of some default made 
 in the payment of interest money secured or payable by or 
 under any such mortgage, or by reason of some default made 
 in the payment of any instalment of ^jrincipal money, or any 
 portion <!' iny instalment of principal money secured or pay- 
 able by ov under any such mortgage, but shall be held as 
 applying to any such instalment in respect .of which default 
 has been made as aforesaid. 
 
 Mortgages (2) Any rule, question or matter of law and equity affecting 
 
 pitor to°July °^ arising out of any default in the payment of money secured 
 ist, 1888, not by any moi'tgage made on or prior to the said 1st day of July, 
 affected. 1888, shall in all respects, and for all purposes, be adjudged 
 
 and determined as if the provisions of this section had not 
 
 been enacted. 51 V. c. 15, s. 2. 
 
 PART II. 
 
 Powers inci- 1 8. Where any principal money is secured or charged by deed 
 Jwes XT*" executed after the 11th day of March, 1879, on any heredita- 
 default for ments of any tenure, or on any interest therein, the person to 
 whom the money shall, for the time being, be payable, his 
 executors, administrators and assigns, shall, at any time after th3 
 expiration of four months from the time when the principal 
 money shall have become payable, according to the I. uis of the 
 
 cert;aiii time. 
 
(1). 
 
 Sec 21. 
 
 MORTGAGES OF REAL ESTATE. 
 
 Chap. 121. 
 
 601 
 
 deed, or after any interest on the principal money shall have 
 been in arrear for.si.v months, or after any omission to pay any 
 premium on any insurance which, by the terras of the dee«l, 
 ought to be paid by the person entitled to the property subject 
 to the charge, have the following powers, to the same extent 
 (but no more) as if they had been in terms conferred by the 
 person creating the charge, namely : 
 
 Ist. A power to sell, or concur with any other person in Power of B»le. 
 selling, the whole or any part of the property by public auction 
 or private contract, subject to any reasonable conditions he may 
 think fit to make, and to rescind or vary contracts for .sale, or 
 buy in and re-sell the property, from time to time, in like 
 manner. 
 
 2nd. A power to insure, and keep insured, from loss or Power to 
 damage bj' lire, the whole or any part of the property (whether »>»"''''• 
 affixed to the freehold or not) which is in its nature insurable, 
 and to add the premiums paid for such insurance to the 
 piincipal money secured at the same rate of interest. R. S. 0. 
 1887, c. 102, s. 18 ; 51 V. c. 15, s. 3, part. 
 
 10. Receipts for purchase money given by the person or Receipts for 
 persons exercising the power of sale by the preceding section n",^ev suffi- 
 conferred, shall be sufficient discharges to the purchaser, whocientdia- 
 shall not be bound to see to the application of the purchase charges. 
 money. R. S. O. 1887, c. 102. s. 19. 
 
 30.— (1) No sale as aforesaid shall be made until after Notice before 
 two months' notice in writing has been given to any subsequent *''^'®" 
 incumbrancer, and to the person entitled to the property 
 subject to the charge and to such incumbrance, the notice to 
 be given either personally or at his usual or last place of ixsi 
 dence in this Province, which notice may be given at any 
 time after any default in making a payment pi-ovided for by 
 the deed. R. S. O. 1887, c. 102, s. 20 (1); 51 V. c. 15, s. 3, 
 part. 
 
 (2) In case of the death of the person entitled subject to the 
 charge, and of his interest therein passing to infant heirs or 
 devisees, the notice shall be given as aforesaid to his executors 
 or administrators, as well as to his heirs or devisees, as the case 
 may be. 
 
 (3) The notice for an infant heir is to be served upon his 
 guardian, and is also to be served upon the infant himself, if 
 over the age of twelve yeans. R. S. O. 1887. c. 102, s. 20 (2-3). 
 
 3 1 . When a sale has been effected in professed exercise improper sale 
 of the powers hereby conferred, the title of the purchaser shall "."* to defeat 
 not be liable to be impeached on the ground that no case had chaser. 
 arisen to authorize the exercise of such power, or that such 
 power has been improperly or irregularly exercised, or that no 
 such notice as aforesaid has been given : but any person dam- 
 
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 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 873-4503 
 
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602 
 
 Chap. 121. MORTGAGES OF REAL ESTATE. 
 
 Sec. 21. 
 
 Form of 
 notice. 
 
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 Regietration 
 of notice. 
 
 i 
 
 03 
 
 AflSdavit for 
 regiBtration. 
 
 nified by any such unauthorized, improper, or irregular exer- 
 cise of such power, shall have his remedy against the person 
 selling. R. S. O. 18b7, o. 102, s. 21. 
 
 "ili. The notice of sale may be in the following form or to the 
 following effect : 
 
 I hereby require you on or before the day of 18 , (« day 
 
 not leas than two calendar months from the service of the imticc, and not less 
 than six months after the defatdt) to pay off the principal money and 
 interest secured by a ^ertain indenture dated the day of 
 
 18 and expressed to be made between (here state jyarties and describe 
 morUjatje propeHy) wliich said mortg.age was registered on the day of 
 
 {and if the mortijaije has been assiyned aild : and lias since become 
 the property of the undersigned). And I hereby give you notice that the 
 amount due on the said mortgage for jirincipal, interest, and coats respec- 
 tively, is as follows : (set the same forth). 
 
 And unless the said principal money and interest and costs are paid on 
 or before tlie said day of I shall sell the property comprised 
 
 in t!io said indenture under the authority of the Act entitled An Act 
 respecting Mortgages of Real Estate. 
 Dated the day of 18 . 
 
 R. S. O. 1887, 0. 102, s. 22 ; 58 V. c. 19, s. 1. 
 
 23. The notice of sale of lands may be registered in the reg- 
 istry office of the registry division in .vhich the lands are 
 situate, in the same manner as any other instrument affecting 
 the land, and such registration shall have the same ett'ect, and 
 the duties of the registrar in respect of the same shell be as in 
 the case of any other registered instrument, and the fee to be 
 paid such registrar for registering the same shall Ite fifty cents. 
 R. S. O. 1887, c. 102, s. 23. 
 
 "44. — (1) The affidavit for the purpose of re<^istering the notice 
 shall be made by the person who served the same, and shall 
 prove the time, place, and manner of such service, and that the 
 copy delivered to the registrar is a true copy of the notice 
 served. 
 
 Certified copy (2) A copy of such registered notice and affidavit, certified 
 noSt'obe* ^^^^^^ir the hand and seal of rffice of the registrar, shall in 
 evidence. all casc3 be recuived as jyi'ima facie evidence of the facts 
 therein stated. R. S. 0. 1887, c. 102, s. 24. 
 
 Application of 
 
 purchane 
 
 money. 
 
 "iH. The money arising by a sale effected as aforesaid shall 
 be applied by the person receiving the same as follows : firstly, 
 in payment of all the expenses incident to the sale or incvu'red 
 in any attempted sale ; .secondlj', in discharge of all interest 
 and costs then due in respect of the charge in consequence 
 whereof the .sale was made ; and thirdly, in discharge of all the 
 principal moneys then due in respect of such charge ; and the 
 residue of such money shall be paid to the subsequent incum- 
 brancers according to their priorities, and the balance to the 
 person entitled to the property subject to the charge, his heirs, 
 executors, administrators, or assigns, as the case may be. 
 R. S. 0. 1887, c. 102, s. 25. 
 
Sec. 29 (2). 
 
 MORTGAGES OF REAL ESTATE. Chap. 1 2 
 
 603 
 
 *iii. The person exercising the power of sale hereby conf erred Conveyance to 
 .shall have ,)ower by deed to convey oi assign to and vest in the the purchaser, 
 purchaser the property sold, for all the estate and interest 
 therein, which the person who created the charge had power to 
 dispo.se of. R. S. 0. 1S87, c 102, .s. 2G. 
 
 charge may 
 call tor title 
 deeds and con- 
 veyance of 
 legal estate. 
 
 3T. At any time after the power of .sale hereby conferred owner of 
 shall have become exercisable, the person entitled to exercis'' 
 the same shall be entitled to demand and recover, from thi' 
 ijv , M.u entitled to the property subject to the charge, all th^' 
 Jetv'- t' documents in his possession or power relating to the 
 same pio erty, or to the title thereto, which he would have 
 been entitled to c'emand and recover if the same property had 
 been conveyed, appointed, surrendered, or assigned .o and was 
 then vested in him for all the estate and interest which the 
 person creating the charge had power to dispose of ; and where 
 the legal estate is outstanding in a trustee, the person 
 entitled to a charge created by a person equitably entitled, or 
 any purchaser from such person, shall be entitled to call for a 
 conveyance of the legal e.state to the same extent as the person 
 creating the charge could have called for such a conveyance if 
 the charge had not been made. R. S. O. iSfi?, c. 102, s. 27. 
 
 HH. So much of Part II of this Act as provides for a power Provisions as 
 to sell shall not apply in the case of a deed which contains a n^tfo apply in 
 power of sale except as is in the next section provided ; and certain cases, 
 so much of this Act as provides a power to insure shall not 
 apply in the case of a deed which contains a power to insure, 
 nor shall any of the provisions of Part II. of this Act apply 
 to any deed which contains a declaration that Part II. of this 
 Act is not to apply thereto. R. S. O. 1887, c. 102, s. 29 ; 
 51 V. c. 15. s. 4. 53 V. c. 27, s 1. 
 
 !J9. — (1) Whenever a mortgage made in pursuance of T/ie Power of sale. 
 Act respect'niff Short Forms of Murtgarjes contains a power of ^^.^^g^***- 
 sale in the form No. 14, in Column One of Schedule B to the said 
 Act, the mortgagee, his heirs, executors, administrators or 
 assigns may, in exercising the said power, in lieu of taking the 
 proceedings provided for by the said form No. 14, Column Two, ^toitnagee 
 take proceedings under and have the benetit of the provisions of »nlu may 
 of Part II. of this Act, except that such i^nver shall not be pryct^d under 
 exercisable until after at lenst four months' default and at '" 
 least two montiis' notice, or such longer periods as may by the 
 power contained in such mortgage be fixed therefor, and the 
 said Part II. .shall apply to a sale made under such power. 
 
 51 V. 
 
 s. 4. 
 
 (2) Whenever a mortgage purporting t<> be made in pur- When mort- 
 suance of The Act respecting Short Forms of Mortgages con- for^ga^e'with'" 
 tains a power of sale which proviiles for a sale without notice, out notice, 
 the mortgagee, his heirs, ex(!cutors, administratf)rs or assigns '^'"'- ^'**' 
 may take proceedings to sell under and sell and have the '^' 
 
604 
 
 Chap. 121. 
 
 MORTGAGES OF REAL ESTATE. 
 
 Sec. 29 (2). 
 
 benefit of the provision.s of Part II. of thi.s Act as fully and 
 effectually as if the mortgage had not contained a power of 
 sale. This subsection .shall be held to fipply to all mortgages 
 whether heretofore or hereafter made. 53 V. c . 27, s. 1. 
 
 Taxation of 
 
 C03t«. 
 
 o 
 
 PC 
 
 r 
 
 73 
 
 30. The mortgagee's costs may, without an order, be taxed 
 by one of the taxing officers of the Supreme Court of Judi- 
 cature or by the local master, at the instance of any party 
 interested. R. S. 0. 1887, c. 102, s. 28. 
 
 PART III. 
 
 SI. — (1) In order to prevent the making of unnecessary and 
 vexatious costs in resi)ect to mortgages, it is heroby enacted 
 that, where ])ursuant to any condition or proviso contained in 
 a mortgage there has been made or given a demand or notice 
 either requiring payment of the moneys or any part thereof 
 secured by such mortgage, or declaring an intention to proceed 
 Uiider and exercise the power of sale contained in such mort- 
 gage, no further proceedings and no action either to enforce 
 such mortgage, or with respect to any clau,se, covenant or 
 provision therein contained, or the lands or any part thereof 
 thereby mortgaged shall, until after the lapse of the time 
 at or after which, according to such demand or notice, 
 payment of the moneys is to be made, or the power of 
 sale is to be exercised or proceeded under, be commenced or 
 taken unless and until an order permitting the sariie shall first 
 be had and obtained either from the Judge of a County Court 
 or fiom a Judge of the High Court. 
 
 Proof on which (2) Such order may be obtained ex parte, but only upon such 
 granted*''^* affida\-its and proof as will satisfy the Judge that it is reason- 
 able and equitable that the proposed action or proceeding 
 should be allowed to bo taken and proceeded with. 
 
 When demand 
 »f payment 
 /nade or notice 
 of intention to 
 exercise power 
 of sale given, 
 no other pro- 
 ceedings to be 
 taken until ex- 
 piration of 
 time named 
 in notice or 
 demand, with- 
 out order of a 
 judge. 
 
 Title of attida- 
 vit or order. 
 
 (3) Such affidavit or order may be entitled as follows : — 
 
 In the matter of a mnrtgiige purporting to be made between (describ- 
 ing the jxirfien thi'irto ai in ihe mortgaije) and bearing date on the 
 day of 
 
 This section (4) This section shall not ai)pl3' to proceedings to stay waste 
 ?o proceedings ^*" "thei" injury to the mortgaged jiremises, and the costs of any 
 to stay waHti' application thereunder shall l)e in the discretion of the Judge. 
 "'=• R. S. O. 1887, c. 102, s. 30. 
 
 Payment to be li'i. When such demand or notice requires payment of all 
 accepted if inoneys secured to be paid by or under a mortgage, the party 
 
 made in terms , . *' , , , ' . v , . . T 1 1 , i 
 
 makmg such demanu or givmg .such notice shall accept and 
 
 receive payment of the same if made as required by the terms 
 
 of such notice or demand ; and if there be any dispute as to 
 
 the costs payable by the person bj' or on whose behalf such 
 
 payment is either made or tendered then such costs shall, on 
 
 of notice. 
 Taxation of 
 
 OOStB. 
 
Sec. 34. 
 
 MORTGAGES OF REAL ESTATE. 
 
 Chap. 121. 
 
 605 
 
 three clear days' notice to such person by the pcr.son claiming 
 the same, be taxed and ascertained by the clerk of a County 
 Court, or by a local master aforesaid, and tliereuponand in such 
 case, if within teii days after said costs have been so taxed and 
 ascertained, payment of said inoncys and costs are didy made 
 or tendered to the person entitled thereto, or to his solicitor or 
 agent in that behalf, the .same shall be deemed and taken to 
 have been paid or tendered, as the case may be, within the 
 meaning of such notice or demand, and in compliance therewith, 
 R. S. O. 1887, c. 102, .s. 31. 
 
 tJ3. The purchaser in good faith of a mortgage may to the Purchaser of 
 extent of the mortgage (and except as amiinst the mortgagor, mortgaze may 
 
 l-i- i. i--i.x \ L i.1 ^ I y. iiPt up defence 
 
 lus heirs, executors, or administrators), set up the defence or of purcli,-ise for 
 purchase for value without notice in the .same manner as a pur- value without 
 chaser of the property mortgaged might do. R. S. O. 1887, "" "^" 
 c. 102, s. 32. 
 
 34. No sale made prior to the 23rd day of March, 1888, Time for 
 shall be declared to be invalid on the ground, or by reason awNtiouing 
 
 1 /. , , 1 • 1 1 • e !• sales limited. 
 
 only 01 the same having been made m pursuance oi a power ot 
 sale contained in a mortgage where such power has been 
 exercised by an assignee of such mortgage instead of the 
 original mortgagee unless within two years after the making 
 of any such sale, proceedings have been taken to declare the 
 same to be invalid or irregular : but nothing in this section 
 contained .shall be deemed or construed to confirm any such 
 sale which for any other reason or any other ground might 
 be set aside, or declared irregular or invalid ; nor shall any- 
 thing herein contained affect any pi'oceeding, suit, or matter, 
 adjudged or determined before or pending at the .said date or 
 brought within three months thereafter, 51 V. c. 15, s. 5. 
 
606 
 
 MORTGAGES OF REAL ESTATE. 
 
 NOTES. 
 
 tention anjwurs, iis including 
 action an 
 
 g 
 
 r 
 
 03 
 ■S3 
 
 Title of Act. The title of the Act is somewhat misleading. Though ma'iy of 
 the piDvisions aie a|)])lioal)le only, or more partifulaily, to mortgages of real 
 estate, tiio \V(ji(l " i)ri)))eity " is by s. 1 to be eonstrued, unless a eontraiy in- 
 inpeiirs, as including real and personal proi)erty, and anything in 
 d any other right or int'^rest. Such sections, therefore, as contain 
 che word " jjropeity " nnist at least be construed, if no contrary intention ap- 
 pears, to relate to mortgages of every kind, i.e., to all conveyances of or 
 charges upon |)roperty, real or personal, including book delts and policies of 
 insui'ance, as seciiiity for nionej' or money's worth. 
 
 Mortgagor. Mortgagor is defined to include any person from time to time 
 deriving title undc. the original mortgagor or entitled to redeem. It will 
 therefore in(lu<le a (mrcha.ser ; a grantee under a voluntary conveyance ; 
 Howard v. Harris (IGSH) 1 Vern. 193; a second mortgagee, Hoole v. .Smith 
 (1881) 1" Ch. L). 4;U ; an execution creditor having a charge on the hind, Com- 
 mercial Hank V. Watson (1859) 5 L..r.O.,S. 103; Chamberlain v. Sc)vais(188I) 
 -1% (ir. 404: a dowre.ss, Palmes v. Danliy (1700) Pre. Ch. 1.S7 ; a wife 
 entitle<l to an inelioate right of (h)wer. Building and Loan As.sociation 
 v. Carswell (1879) 8 P.K. 73 ; Ayerst v. McClean (1890) 14 P.R. l,'-> ; Blong v. 
 Fitzgerahl (1893) 15 P.R. 467; a surety for the mortgage money, Seidler v. 
 3heppard (18t)(>) 12 (ir. 450 ; Martin v." Hall (1878) 25 (!r. 471 ; a tenant for 
 years of mortgaged land, Martin v. Miles (1883) 5 O.R. 404 ; Collins v. Cun- 
 ningham (1892)21 S.C.R. 139; Tarn v. Turner (1888) .39 Ch. I). 450; and a 
 mortgagee of such tenant, McMaster v. Demniery (1800) 12 (Jr. 193 ; and 
 generally every one deriving an interest from the niortg.agor, j)er Wilson, C..T.; 
 Martin v. Miles (1883) 5 O.K. 404. Tlie wife of a purcliaser of an equity of 
 redemption woidd not during his lifetime have the right to redeem, Monk v. 
 Benjamin (1890) 13 P.R. .350. noi' a simph? (ontract creditor, unle.s.s after decree 
 for sale in a creditor's suit. Christian v. Field (1842) 2 Hare 177. A j)er.son who 
 owns an ui\divided interest in land lias no right to redeem a mortgage made by 
 his co-owner on his undivided interest ; Nic'liol v. Allenby (1889) 17 O.R. 275. 
 
 Transfer Instead of Reoonveyajace. A i)a!t\ redeeming was foi-merly not 
 entitled to un assignment, but -iimplv to a reconveyatice, Tliompson v. iNJcCar- 
 lhy(1877) 13L..I.N.^^. 220; Uunstan" v. Patterson ("1847) 2 Pliill. 341. After the 
 enactment of s. 2(1) in England it was lield in Teevan v. Smith (1882)20 
 Ch. 1). 724, that when a first mortgagee had notice of a second mortgage, the 
 mortgagor could not reciuire him to transfer the m,)rtgage. This decision was 
 followed in Ontario in Rogers v. Wilson (1887) 12 P.R. 322, .545, where it was 
 held that a mortgagee wlio held two mortgages from the same mortgagor, couhl 
 not be . (impelled to assign the first mortgage, unless the second mortgage was 
 pai<l. To provide for the dilliculties in ailjusting the rights of several suc- 
 cessive encumbranoers, s. 2 (2) was enacted in Kngland in 1882, l)ut was not 
 enacted in Ontario tuitil 1897. It leaves unt(mched the decision in Rogers v. 
 Wilson. It would seem also that it left unt(mched the right of the mortgagee 
 to consolidate his securities in the few cases where such right exists, lieeauso 
 the mortgagee is bimnd only to transfer " on the terms on wliich lie would be 
 bimiid to reconvey," Tliomi>son v. Warwick (1894)21 A.R. (i37 ; Muttlebury 
 v. 'I'aylor (1892) 22 O.R. 312. Where a tenant for life faileii to keep down the 
 interest on a mortgage, he was lield not to lie entitled to rei|uire the mortgagee, 
 who was a remaindernmn, to transfer the mortgage ; Aldersoii v. Klgey (1884) 
 20 Ch. I). .-)07. 
 
 Tlie mere fact that a mortgagee holds two or mori; mortgages upon the 
 property will not entitle him to refu.se an assignment of the first mortgage to 
 tlie mortgagoi-, if he is suing liim upon his covenant, when such mortgagor has 
 ))arted witli his ecjuity or redemption and tlie snbsei|uent moi'tgages were 
 made not bv liim. ftut by his assigmi^s ; Kiiinaiiil v. TroUope (IS88) 39 (;ii. U. 
 0.30; (iliieen's College v! Claxton (1894)25 O.R. 282; Stark v. Reicl (1895) 20 
 O.R. 2.57. 
 
 The assignment sliouM contain only the ordinary trustee covenant against 
 eneumlirances. an(i should, if necessary, recite the exact position of the ))artie8, 
 Had of any collateral securities, (ioodeiham v. Traders Hank (1888) 10 O.R. 
 4.'>H. The section does not ap))ly where any mortgagee is or has bi'en in 
 possession, because of the rule that an assignment by such a mortgagee would 
 not discharge him from accountability for the iniu)me of the property after the 
 ivsHignment ; Re Prytherch, Prytherch v, Williams (1889) 42 Ch. D. .590. 
 
MORTGAGES OF REAL ESTATE. 
 
 607 
 
 Where ii ci)ini)iiiiy has a lien on the sliares of a sliareliolder for a debt due 
 lid on payment, even hy the (lel)tor, it may l)c re(iuired 
 lien ; Kverilt v. Automatic Weighing Macliine Co. 
 
 by him to it, s. "2 applies, and on payment, even hy thedel)tor, it may hcrecpiired 
 to :'Hsign the debt and 
 
 (1892) ;iCh. 500. 
 
 Where there is a charge, e.g. a jointure, intervening between the first mort- 
 gage and subse(|ueiit moitgages, then if the holder of the eliargo redeems, the 
 sul>se(iuent inoitgageiis can only redeem subject to that charge; Smithett v. 
 Hesketli (IHitO) 44 Cli. I). Hil. 
 
 Inspection of Title Deeds. A mortgagee was not, before a. .3 was enacted, 
 liounil to produce iiis deeds unless he was redeemed ; Chichester v. Maniuisof 
 Donegal (1S70) L. R. 5 Cii. 497, or in an action where fraud was charged : 
 Kennedy v. (irecn (IS.S.S) (i Sim. 6, or wliere the deed was referred to in the 
 defence so as to make it part thereof ; Latimer v. Neate (18U7) 4 CI. & F. 
 .'570 ; hut tins rule ditl not extend to tlie mortgage ; Patch v. Ward (I860) L. 
 R. 1 Ecj. 430, or an endorsement thereon ; Phillips v. Kvans (1H44) 2 Y. & C. 
 C. C. 047 ; but MPinh/t', only for pi-oof at tlie trial : Beaumont v. Foster (IS.'IO) 
 5L. .1. Ch. 4, but not an assignment of the mortgage ; Lewis v. I\ivi8 (185.3) 
 17 Jur. 25.3. Tiie right to inspect is under s. 3 co-extensive with the right to 
 redeem, so that if tiie title of the mortgagor is extinguished by the Statute of 
 Limitations, the right to inspect is gone. 
 
 Insurance Moneys. S. 4 is from Imp. Act 44 & 45 Vict. c. 41 s. 23 (3) (4) 
 witli some variations in the language. Formerly tliu right '..f the niortgagce to 
 the Insurance money was, in the absence of an assignment, legal or eciuitable, 
 of the insurance governed oy 14 (ieo. Ill c. 78 s. 8,3 which wa.s repealed l)y 50 
 Vict. c. 20 .s. l.J4 (R. S. 0. 1887 c. 167 s. 155) Stii.Mn v. Pennock (1868) 14 
 Or. 004 ; Carr v. Fire Insce. Co. (1887) 14 O. R. 487. 
 
 The rigiu to insurance nujney will extend to money received in respect of 
 fixtures upon tlio property; Carr v. Fire Insce. Co. (1887) 14 O. R. 487; 
 Waterous Engine Works Co. v. McCann (1894) 21 A. R. 486. Wliere the 
 insuiance moneys are more tiian sufficient to jiay oil' the mortgage upon the 
 property, tiie mort^'agor is entitled to the surplus although the niortgagee.s 
 may liold another mortgage from him upon other property ; Re Union Assce. 
 Co." (1893) 23 0. R. 027. 
 
 The mortgagee may liold tlie moneys received, in reserve, while any part of 
 the mortgage moneys is unpaid, and is not liound to apply it, either upon 
 arrears or upon the mortgage moneys as they become due or a fortiori in accel- 
 eration of the payments to l)ecome due ; Edmonds v. Hamilton Provident and 
 LoanSocy. (1891) 18 A. R. 347 ; Corham v. Kingston (1889) 17 O. R. 432. 
 
 Implied Covenants. It will lie noticed tliat when covenants are implied un<ler 
 s. 5 tliey arc joint and several. Wliere in a Ijill of sale of ciiattels the ven(h)r 
 is expressed to convey " as benelicial owner" the covenants will bo implied ; 
 Ex parte Stanford (1886) 18 Q R. D. 259. 
 
 Merger. Wliether by taking a release of the ccpiity of re<lemption a merger 
 of the mortgage delit is caused is a (piestion of intention. What the intention 
 of the parties was is a riuestion of fact ; North of Scotland Mortgage Co. v. 
 German (1880) 31 C. P. 349. Where tliere are intermediate encumbrancers 
 tliere will be no merger; Hart v. McQuesten (1875) 22 Or. 1.33, even tliough 
 the personal liability of the mortgagor may be released, //) ; s. 9 ; see Thorno 
 V. Canii (1895) A. C. 11 ; Weaver v. Vanduscii (1889) 27 Or. 477 ; Li(piidators 
 Estate Co. v. Willoughliy (1898) A. C. 321. Wliere tlie mortgagee after taking 
 a conveyance of the e<iuity of redemption, tliere being no intermediate encum- 
 brance, seeks to recover the mortgage money on the covenant for payment, tlio 
 onus is upon the mortgagee, to prove there was no merger. North of Scotland 
 Mortgage Co. v. Udell (1882) 46 U. C. R. 511; Cameron v. (iil)soii (I>;8!») 17 
 O. R. 233, and if he sells the |)roperty so as to put it out of the jiower of the 
 mortgagor to redeem, he cannot recover; Hritisli and Canadian Loan and Invest- 
 ment Co. v. Williams (1888) 15(). R. 30(i. Ti> king a conveyance to the mort- 
 gagee's wife will inevent a merger ; Macdonald v. HuUivaiit (1884) 10 A. R. 582. 
 
 Assignment of Mortgage by Executors. S. 1 1 was necessary at the time when 
 the legal estate in lands vested in tlic lieir of the dcccascil. It may be lliat it 
 is still necessary after the expiration of a year from the deatli, see R. S. 0. c. 
 127 8. 13. 
 
 Discharges of Mortgages. Under the words " the mortgagee or his assignee, 
 his iicirs, executors, a(lniinistiators orassignsor iKtiyoiif of/ltiDi" one executor 
 may give a .• id discharge; Ex parte Johnson (1875) P. R. 22;"), if ho 
 receives the mortgage money, Uilke v. Douglas (1880) 5 A. R. 63, but not of 
 
 V 
 
608 
 
 MORTGAGtS Oi KEAL ESTATK. 
 
 
 i 
 
 do 
 
 73 
 
 
 111 
 
 a niortgnge nimio by himself ; Beaty v. Shaw (1HH8) 14 A. R. (K)0, see Notes to 
 R. S. O. e. I'Ji) p. 3!ll. I')x parte Johnson, im/ov) is not to he implicitly relied 
 upon, see Aiinour on Titles, ±21). 
 
 Advance on Joint Account. S. 13 appears to have been re-enaeteil in Ontario 
 under the erroneous idea that the law here in 1SH6 was the same as the Knglish 
 law in 1881. In Knglan<l the presumption in mortgage investments was in 
 favor of a tenancy in common; Robinson v. I'reston (18.")8) 4 K. iV .1. od,") ; 
 and it was therefore necessary, on the death of one of two mortgagees, to join 
 his representatives in a release of tlie mortgage. This section was enacted in 
 Kngland as mere conveyancing machinery to facilitate the dealing with the 
 pro|)crty. The joint account chiuse was not conclusive i s between the jiarties 
 interested in the money ; Re Jackson, Smitli v. Sibthorpe ( I8S7) S4 t'li. 1). 732, 
 but except when a contrary intention appeared, it was conclusive as between 
 the mortgagees and the nu)rtgagor. Ontario lcgislati<in has since 184!) con- 
 tained tiie provisions of s. 14 making the re(ci)>t by the suivivor or survivors 
 of mortgagees good. Those provisions were taken from the Knglish .Statute of 7 
 it 8 Vict. 0. 7(>, which was i-cpcaled in the following year. It will be noticed 
 that s. 13 provides that receijjts " in writing " shall l)e a good discharge while 
 s. 14 makes tlie jjaynient of the nionej- the discharge. A discharge of mort- 
 gage under The Registry Act may be effectually given by the surviving nun-t- 
 gagee by virtue of s. 14, he being the pei'son " entitled by law to recinve the 
 m-inev and discharge the mortgage '" under s. 7() of The Registry Act (R. S. O. 
 c. l.S(i); Dilke v. l)ougals(1880) o A. R. 63, 77. 
 
 The object of the joint account clause is where the mortgagees are ti'isteos 
 to keep the trusts off the face of the mortgage ileed. The im])oitancc of not 
 setting forth the trusts is shewn by the case of Macklin v. Dowling (181)0l 1ft 
 0. R. 441, where trustees who had taken a release of the ecjuity of redeni])tion 
 were helil not to be able to make a goo<l title without the concurrence of the 
 rt»t\\\ que Iriisl. The court has absolutely refused to go behind the recital of 
 joint account or to inquire what the tru.st.i are ; Re Harman and Uxbridge 
 &c. r.y- t.'o. (1883) '24Ch. D. 72(), 72(i; see also Re Parker and Reech's Contract 
 (188()) 54 L.T. 750. The Knglish Act contaii;sa form of a joint account clause. 
 Adapted to the forms used in Ontario, it would read as follows ; — " VVitnes.seth, 
 that in consideration oi$ paid to the uu)rtgagor liy the mortgagees, out of 
 money behuiging to them on joint account (the receipt whereof is hereby 
 acknowledged), &e." 44 & 45 Vict. c. 41, Schedule 4. 
 
 night of distress. S 15 extends to all cases where interest is distrained for 
 viz., (1) mere licen.ses and (2) where the relationship of landlord and tenant is 
 created V)y the nu)rtgage between the mortgagor and mortgagee ; KdnKjuds v. 
 Hamilton Provident and Loan Society (1891) 18 A.R. 347. The ordinary jiower 
 given by a mortgage under the Act respecting short forms of Mortgage " that 
 the mortgagee nuiy distrain for arreors of interest" is a mere license and binds 
 only the goods of the party giving it. It does not create the relationshij) of 
 landlord and tenant ; Trust an<l Loan Co. v. Lawrason (1882) 10 S.C.R. 679, 8 
 A.R. 280; Royal Canadian Bank v. Kelly (1869) 19 C. P. 196, 420: Laing v. 
 Ontario Loan and .Savings Co. (1881) 46 U.C.R. 114. The right to distrain for 
 interest exists only as to such interest as becomes due at or before the matiu'ity 
 of the mortgage— not such as is payable by way of claniages thereafter ; Klinek 
 V. Ontario Itidustrial Loan and Investment Co. (1888) 16 O.R. 562; and it may 
 be that it should be distrained for within six months after the mortgage matures 
 il). There nuiy be a power to distrain for arrears of principal nu)ney ; McDonell 
 v. Building and Loan Assn. (1885) 10 O.R. 580; Hobbs v. Ontario Loan and 
 Debenture Co. (1890) 18 S.C.R. at p. 552; and there would seem to be no 
 exemptions allowable to a mortgagor on such a distress. 
 
 Interest payable as rent. The mortgage may create the relationship of lanil- 
 lord and tenant between the nu)rtgagor and mortgagee. The usual method i.s 
 by the insertion of an attornment clause by which the mortgagor acknowledges 
 himself tenant to the mortgagee atr a certain rent, but it may be by a demise 
 by the mortgagee — he executnig the mortgage; see Morton v. Woods (1868) L. 
 R. 3 Q.B. 658, L.R. 4 Q.B. 293. An attorimient operates as an estoppel— the 
 mortgagor cainiot if he occupies the laiul deny the tenancy iV)., West v. Fritcho 
 (1848) 3 Kx. 216, Ex parte Puiniett (1880) 16 Ch. D. 226 ;, Ex parte Voisey 
 (1882) 21 Ch. D. 442; Hobbs v. Ontario Loan and Debenture Co. (1890) 18 S. 
 C.R. i'iS. In England, attornment clauses have, in some cases, been held to bo 
 invalid because the absurUity of the rent reserved shewed that the parties did not 
 
MORTGAGES OF REAL ESTATE. 
 
 609 
 
 intcnil to liomi ji'ili oreatc tlie relation of lim(ll(ii<l and trnanl at a gt-tniinc rent, 
 whiili the i)iirtie.s inti'tuled slioiild lie paid, ))iit that what they di'l intend 
 was, tliat in ease of hankniptey of the mortgagor, tiie nioitgageo slionhl hi; 
 enal)led to ohtain a Hef\uity upon ehattels wliieh had not lieeii assigned to liini 
 by a hill of sale anil which, hut for the device, would he distiihnteil among his 
 ereclitois; see Kx pait(^ Williams (1M77) 7 Ch. I). 1.S8, where the rent was seven 
 times the annual value: Kx jjarteJackson (18S!() 14Ch. 1). 7-"), where the rent 
 WIS ">7 times the animal value. l$ut where the rent, though large, was suhstanti- 
 ally a rent which a tenant might honestly agree to pay, am' which a mortgagee 
 might iionestlv ex])ect to receive, the attornment <-laiisi' was ui)held ; Kx parte 
 Voisey (ISH-il'-il Ch.D. 442; Ke Stockton iron Furnace t'o. (187!t) loCh.l). :»"). 
 The ground for hohling an attornment invalid when the rent is excessively 
 ahsurd, is that it is a fraud upon the l}ankriij)tcy law. It was not intendecl, 
 however, to restrict the principles laid down to case.s in which the cpiestion 
 Wi's raised after a hankru|)tcy, hu', the i)rinciples must he generally ajiplied 
 wherever the interests of third person.^ recjuire their appluation, and therefore 
 in a ease in Ontario where the attornment clause purported to create a tenancy 
 at a rental of .S4,(HK( a year, when the actual value was hut .S7")(l, it was held 
 that no real tenancy was created and an execution creditor was entitled to 
 seize dinttels upon the moi-tgaguil premises as against the mortgagee : Hohhs 
 v. Ontario Loan anrl Dehonturo Co. (18!H») 18S.C.R. 48;}, 16 A.R. 255, 15 0. 
 R. 440. 
 
 The mortgagee iloes not by re ison of the attornment clause cease to he a 
 mortgagee because he is nuide laii.Uord, and is therefore entitled to the rights 
 of a mortgagee as to trade fixtures ; Ex parte Pmniett (188(() 10 Ch. I). 22t). 
 
 It is no objection to an attornment clause that the rent is Huctuating in 
 amtanit so long as it is capable of being made certain : VjX parte Voisey (1882) 
 21 Ch. I). 442. 
 
 Where the relation of landlord an<l tenant was created a mortgagee could 
 formeily distrain the goods of a stranger ; Kearsley v. Philips (1883) 11 i). 15. 
 I). 621, but this right is now taken awaj- bv s. 15; Kdmonds v. Hamilton 
 Provident and Loan Soey. (1891) IS A. R. Ml. 
 
 A mortgagee witli an attornment clause has conferred upon him a very 
 onerous obligation, viz. the liability to account to subseipuMit mortgagees, not 
 only for rents actiially received, but for siu;li as might without wilfid default 
 have been received and the nmrtgageo is thus compelled for his own protection 
 to be active in enforcing his right as a lessor, though his .security otherwise 
 nuiy be ample ; he is thus, as it were, converted into a bailift' for subseipuiiit 
 encumbrancers; per Strong .1. Hobbs v. Ontario Loan and DebentuieCo. (1800) 
 18 S. C. R. at pp. 501, 502 ; see also per James L. J. Re Stockton Iron 
 P'urnace Co. (1879) 10 Ch. D. 356, but the foregoing dictum is inconsistent with 
 the decision in Stanley V. (U'undy (1883) 22 Ch. I). 478, where Hac.m V. C. 
 held that the mortgagee was not obliged to avail him.self of the clause. 
 
 Paymentof Principal After Default. S. 17 relieves the mortgagor of the 
 necessity to give six months notice before he can compel the mortgagee to 
 accept his money afti^r default; Harnier v. Priestley (18.53) 16 Beav. 571 ; 
 Browne v. Lockhart (1840) 10 Sim. 424 ; Archbohl v. Building and Loan Assn. 
 (1888)150.R.237. Unleasthe mortgage otlierwise provides, no notice is re(|uired, 
 and no boiuis nee<l be paid when the nu)rtgage was made after 1st .July 1888. 
 When a default occurs in payment of part of the principal the mortgagee can - 
 n<it be compelled to accept the whole although the mortgage may contain a 
 provision making the whole sum payable upon default unless the mortgagee has 
 demanded or taken proceedings to recover the whole ; Cruso v. Bond (1882) 1 
 O. R. 384 ; Re Houston, Houston v. Houston (1882) 2 O, R. 84. 
 
 Powers Incident to Mortg[,«ea. Pi II of the Act (as. 18-28) are, with varia- 
 tions as to time, from Lord Cranwortn ., Act (23 & 24 Vict. 0. 145) as. 11-24, 
 They have never been to any extent relied upon in practice cither here or in 
 Kngland because of the more favorable proviaions usually inserted in mortgages. 
 The sections have been repealed in England by the Conveyancing Act 1S81 and 
 more favorable provisions enacted. It will f)e noticed that the powers are 
 limited to mortgages of " hereditaments of any tenure or any interest therein." 
 
 The power to insure gives the mortgagee power only to add the pi'emiums to 
 the mortgage debt and gives no right to reijuire its immediate payment. 
 
 01 
 
 r 
 
 I 
 
 t^- 
 
610 
 
 MORTGAGES OF REAL ESTATE. 
 
 I 
 
 c 
 % 
 
 E 
 
 if 
 
 E 
 
 03 
 50 
 
 Tlie jM'wer of sale is not oxercisealile if the mortgage oontaitia a power ot 
 Hale, iinlesH the mortgage purports to be made under tlie Short ForniB Act, and 
 till- powei' of sale is " without notice " and tlierefore not entitled to the henetit 
 of the exponential clause of that act, see Ke (iilehrist and Island (1880) 11 (). 
 R. oUT, and the power to insure does not apply if the mortgage contains such a 
 power. 
 
 The provisions of part II may he altogether excluded Ity a declaration in the 
 mortgage that it is not to a])ply ; see s. ^8, Perhaps tlie only henetit to he 
 derived from su<li exclusion is that the mortgagee's costs cannot lie taxed with- 
 out an order under s. 30. 
 
 A purchaser who had notice of the facts which made the exercise of the 
 
 Eower im|)roper would not he protected hv s. 21 ; Patkinson v. Hanhury (1867) 
 ,. H. -2 H. L. I ; Selwyn v. (iartit (1887) 38 Ch. 1). 273; 1ml the section would 
 protect a \ioun fiile. purchaser without notice even though the mortgage had 
 heen, on a proper taking of accounts, satisfied; Dicker v. Angerstein (187(i) 3 
 (jh. I), two. 
 
 Service of the notice may he made either personally or at the usual or last 
 place of residence of the party to whom it is given within the province. It is 
 not necessary that he should ho out of the province to make the service good 
 under the latter alternatives; O'Donohue v. Whitty (1883) 2 O.R. 430. Notice 
 shoulil he served upon execution creditors having executions in the sheritfs 
 hands at the time of giving notice of sale to the owner ; Re Abbott and Met- 
 calf (1891) 20 O. R. 299 ; and up(m a person having an agreement to purchase 
 of which the mortgagee has notice ; Stewart v. Rowsom (1892) 22 0. R. 333. 
 The siu'plus may he paid to the apparent owner of the equity of redemption ; 
 Harper v. Cull)ert (1882) 5 O. R. 152. Where the owner of the equity is dead 
 a valid sale cannot be made until a jwrsonal representative is appointed ; Park- 
 inscm V. Hanbury (1867) L. R. 2 H. L. 1, 1'. 
 
 Fixtures cannot he sold separately; Re Yates (1888) 38 Ch. I). !I2, nor 
 timber, Stewart v. Rowsom (1892) 22 O. R. 533. The mortgagee should not 
 sell separate par(!els of mortgaged property of diflferent natures, e. g. a farm 
 and stores in a village, not in any way used together, tn bloc when reasonable 
 enquiries would show that method to be imprudent ; Aldrich v, Canada Per- 
 manent Loan Co. (1896) 27 O. R. .548 ; 24 A. R. 193. 
 
 The power to convey given bj' s. 26 is important. Under it an equitable 
 mortgagee by demise of a leashold less the last day, may convey the superior 
 lease ; Hiatt v. Hillman (1871) 19 \V. R. 694, and an equitable mortgagee of 
 land may convey the legal estate; Re Solomon and Meagher's contract 
 {1889) 40 Ch. I). 508, ami where any sale is nuido of land registered under The 
 Land Titles Act it would seem that a purchaser from the first mortgagee would 
 be entitled to a certificate for the same title as the mortgagor had at the time 
 of the mortgage notwithstanding subseciuent encumbrancers ; see Re Richard- 
 son (1871) L. R. 12 Kq. 398, L.R. 13 Kq. 142. 
 
 Under s. 30 the costs of a mortgagee may be taxed though the mortgage 
 was made before 1879 ; Ferguson v. English and Scottish Investment Co. 
 (1881)8 P. R. 404. 
 
 Making Unnecessary Costs. SS 31 and 32 do not apply where the power of 
 sale may be exercised without notice ; Canada Permanent Building Society v. 
 Teeter (1889) 19 O. R. 156. 
 
 An advertisement is a further proceeding within s. 31 ; Smith v. Brown 
 (18!H)) 20 0. R. 166. The service of a notice of sale and a writ of summons at 
 the same time will be a violation of s. 30 and the service of the writ will be 
 set aside ; I'erry v. Perry (1884) 10 P. R. 275. 
 
 Purchaser for Value Without Notice. G- 33 was enacted to settle the law 
 caused bv the contticting decisions of Mu.r v.Dunnett (1864)11 t!r.85; Totten v. 
 Douglas "(1868) 15 (ir. 126; Ryckman v. Canada Life Assc. Co. (1870) 17 Or. 
 350, and Smart '•. McEwan (1871) 180r.623,in the latter two of which Strong 
 V. C. held that a mortgagee could not set up the defence of purchase for value 
 without notice. Now that choscs in action are legally assignable, R. S. 0. c. 
 61 8. 58 (5) p. 181 ; and hidden ecpiities cannot be set up against a registered 
 instrument, R. S. O. c. 136 s. 98, the section is perhaps unimportant, especially 
 as the defence is now destroyed in the large class of cases of applications to 
 what was called the auxiliary jurisdietionot the Court of Chancery; Ind. Coope 
 V. Emerson (1886)33 Ch. D. 323, 12 App. Cas. 300. 
 
MORTGAGES OF REAL ESTATE. 
 
 611 
 
 Except Against the Mortgagor, Jcc. The exception in h. 33 raiHt-H a. (lonl)t 
 whether nn asHigncf of a iniiitgagu can relj' upon a receipt for the mortgage 
 money contained in the mortgage, R..S.O. c, 119 s. 5 see p. .")H7 and Hickerton v. 
 Walker (1885) 31 Ch. 1). l'>\. Before that section there was no douht that an 
 assignee took subject to all the eijuities between the original parties to tiie 
 mortgage ; Pressey v. Trotter (1878) 2() (ir. 154; Martin v. Hearman (1880) 4.) 
 U. C. H. '20."); Wilson v. Kyle (1880) 28 Or. 104. 
 
 Invalid Sales. S. 34 was passed to cure sales which the decision in Re Oil- 
 ehrist and Island (1886) 11 O. R. 537 iiad showi. to l)e invalid. 
 
2. INTESTATE SUCCESSION. 
 
 CHAPTER 127. 
 
 An Act respecting the Devolution of Estates. 
 
 3^ 
 
 
 r 
 S 
 
 Shokt title, 8. 1. 
 Application of secs. 3-11, ss. 2, 3. 
 Pkoi'EKTY to devolve on personal 
 uepkesentative, s. 4. 
 
 DimTKIBLTION of PROPERTY OF MAR- 
 RIED WOMAN DYING INTESTATE, 
 
 s. 5. 
 Distribution of estate of person 
 
 DYING intestate AND WITHOUT 
 ISSUE, S. 0. 
 
 Application of property in pay- 
 ment of debts, s. 7. 
 
 Sales of infants' estates, s. 8. 
 
 Power of personal representa- 
 tive OVER REAL PROPERTY, S. 
 9. 
 
 Personal representatives to be 
 deemed in law heirs, 8. 10. 
 
 Sale free from dower, s. 11. 
 
 Widows' preferential shares, s. 
 12. 
 
 Real esvate VE^<Ts in heirs and 
 devisees unless caution regis- 
 tered, ss. 13-15. 
 
 Powers op executors over real 
 
 estate, S. 16. pom "; 
 
 Confirmation of certain .sales, 
 
 ss. 17-20. 
 Official guardian may frame 
 
 RULES, S. 21. '-KiCHWuo 
 
 Interpretation of terms in secs. 
 
 23-30, s. 22. '^■■^'^ 
 
 Descents before 1st July, 1834, 
 
 NOT within Act, s. 23. 
 Descents since I.st July, I834,''ss. 
 
 24-30. 
 De.scents between i.st July, 1834, 
 
 AND 1st January, 1852, ss. 
 
 .31-30. 
 Descents between 1st January, 
 
 1852, AND 1st July, 1886, ss. 
 
 37-55. 
 General provisions, ss. 50-67. 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 Short title. 1 . This Act may be cited as " The Devohition of Estates Act." 
 
 R. S. O. 1887. c. 108. s. 1. 
 
 Application 
 of 88. 3-10. 
 
 H. Sections 3 to 10 inclusive of this Act shall apply only to 
 v/he estates of persons dying on and after the 1st day of July, 
 1886. R. S. 0. 1887. c. 108. s. 2. 
 
 Estates to S. Subject as above this and the next seven sections of this 
 
 which SB. 3-10 ^^,t g^aii apply :_ 
 
 [612 J 
 
Sec. 4 (4). 
 
 DEVOLUTION OF ESTATES. 
 
 Chap. 127. 
 
 613 
 
 (a) To all e.states of inheritance in fee simple, or limited to 
 
 the heir as special occupant, in any tenements or 
 hereditaments in Ontario, whether corporeal or 
 incorporeal. 
 
 (b) To cnattels i-eal in Ontario. 
 
 (c) To all other personal property of any person who has 
 
 died domiciled in Ontario. 
 
 Provided, that all real or personal property comprised in any Proviso, 
 disposition made by will in exercise of a general testamentarj- 
 power of appointment shall be deemed to be within the 
 provisions of this section, if otherwise applicable. R. S. 0. 
 1887, c. 108, s. 3. 
 
 4. — (1) All such property as aforesaid which is vested in Property to 
 any person, or is comprised in any such disposition as afore- personal repre 
 said made by him, shall on his death, notwithstanding any sentative. 
 testamentary dispo.sition, devolve upon and become vested in 
 his legal personal representatives from time to time, 
 and subject to the payment of his debts; and so far as 
 the said property is not disposed of by deed, will, contract or 
 other effectual disposition, the same shall be distributed as 
 personal property not so disposed of is hereafter to be 
 distributed. 
 
 (2) Nothing in this Act shall be construed to take away a Saving a» to 
 widow's right to dower ; but a widow may by deed or instru- ^"^^'■• 
 ment in writing, attested by at least one witness, elect to take 
 
 her interest under this section in her husband's undisposed of 
 real estate, in lieu of all claims to dower in respect of real estate 
 of which her husband was at any time seised, or to which 
 at the time of his death he was beneficially entitled ; and unless 
 she so elects she shall not be entitled to .share under this sec- 
 tion in the undisposed of real estate aforesaid. 
 
 (3) Any husband who, if sections 3 to 9 of this Act had not ?*V"^ .** *" 
 passed, would be entitled to an interest as tenant by the te"re3t'in pr" 
 curtcsy in any real estate of his wife, may by deed or instru- perty of wife, 
 mont in writing executed within six months after his wife's 
 
 death, and attested by at least one witness, elect to take such 
 interest in the real and personal property of his deceased wife 
 as he would have taken if the said sections of this Act had not 
 passed, in which case the husband's interest therein shall be 
 ascertained in all respects as if the said sections had not passed, 
 and he shall be entitled to no further interest under the .said 
 sections of this Act. 
 
 (4) Where any person applies to be appointed an adminis- Administra- 
 trator, and the administration applied for is a general adminis- security tlf 
 tration, the application and the affidavit in support thereof cover real 
 shall .shew the particulars of the real estate of the deceased, ««'**«• 
 and the value or probable value thereof; and the amount of the 
 
()U 
 
 Chap. 127. 
 
 DEVOLUTION OF ESTATES. 
 
 Sec. 4 (4) 
 
 c 
 
 a 
 
 r: 
 
 %. 
 
 E 
 
 r 
 
 s 
 
 security to be given, shall have reference to such value as well 
 as to the value of the other estate of the deceased. R. S. O. 
 1887, c. 108, s. 4. 
 
 UiHtribution 
 of prdpLTty of 
 married 
 woman dying 
 inteHtate. 
 
 5 
 
 The real and personal property, whether separate or 
 otheiwise, of a married woman in respect of which she dies 
 intestate, shall be distributed as i'ollov/s : One-third to her 
 husband if she leaves issue, and one-half if she leaves no issue, 
 and subject thereto shall go and devolve as if her husband had 
 pre-deceased her. 60 V. c. 14, s. 32. 
 
 ft. When a person shall die without leaving issue, and intes- 
 tate as to the whole or any part of his real or personal property, 
 his father surviving shall not be entitled to any greater share 
 under the intestacy than his mother or any brother or sister 
 surviving ; nor shall a grandfather or grandmother of a per- 
 son dying intestate share in competition with a surviving father, 
 motiier, brother or sister. R. S. 0. 1887, c. 108. s. 6. 
 
 Application of 7. The real and personal property of a deceased person com- 
 
 payment of prised in any residuary devise or bequest shall (except so far as 
 
 debts. a contrary intention shall appear from his will or any codicil 
 
 thereto) be applicable ratably, according to their respective 
 
 values, to the payment of his debts. R. S. 0. 1887, c. 108, s. 7. 
 
 Distribution 
 of estate of 
 person dying 
 mtentate and 
 witliout issue. 
 
 Sa.es where 
 infants inter- 
 en ted. 
 
 Rev. Stat, 
 c. 51. 
 
 Local Guar- 
 dians in outer 
 counties. 
 
 Power of per- 
 sonal repre- 
 Bentativc over 
 real property. 
 
 When per- 
 sonal repre- 
 ■entatives to 
 be deemed 
 " heirs." 
 
 8. — (1) Where infants are concerned in real estate which but 
 for the preceding sections of this Act would not devolve on 
 executors or administrators, no sale or conveyance shall be 
 valid under this Act without the written consent or approval of 
 the Official Guardian of infants appointed under The Judi- 
 cature Act, or, in the absence of such consent or approval, 
 without an order of the High Court. 
 
 (2) The High Court may appoint the Local Judge of any 
 county or the Local Master therein,as Local Guardian of Infants, 
 in such county during the pleasure of the Court, with authority 
 to give such written consent or approval as aforesaid instead 
 of the Official Guardian ; and the Offi^^ial Guardian and Local 
 Guardian shall be subject to such general orders as the 
 High Court may from time to time make in regard to their 
 authority and duty under this Act. R. S. O. 1887, c. 108, s. 8. 
 
 9. Subject as hereinbefore provided, the legal personal 
 representatives fror , time to time of a deceased person shall 
 have power to dispose of and otherwise deal with all real pro- 
 perty vested in them by virtue of the preceding sections of 
 this Act, with all the like incidents, but subject to all the like 
 rights, equities, and obligations, as if the same were personal 
 property vested in them. R. S. O. 1887. c. 108, s. 9. 
 
 10. When any portion of the real estate of a person dying 
 on or after the first day of July, 1886, vests in his personal 
 representatives under this Act, such personal representatives. 
 
 E 
 
Sec. 12 (2). 
 
 DEVOLUTION Of ESTATES. 
 
 Chap. 127. 
 
 615 
 
 in the interpretation of any Statute of this Province, or in the 
 construction of any instrument to which the deceased was a 
 party, or in whicli he is interested, shall, while the estate 
 remains in thorn, be deemed in law his heirs, as respects such 
 portion, unless a contrary intention appears, but nothing in 
 this section contained shall affect the beneficial right to any 
 property, or the construction of words of limitation of any 
 estate in or by any deed, will or other instrument. 60 V. 
 c. 14, s. 31. 
 
 1 1. — (I) Where the personal representatives of a deceased 
 person are desirous of selling anj' land devolving upon them 
 free from dower they may apply to a Judge of the High Court, 
 and if the Judge approves he may by an order to be made by 
 him in a summary way, upon such evidence as to him seems 
 meet, and either ex jmrte or upon notice (to be served person- 
 ally unless the Judge otherwise directs) determine whether 
 the land shall be sold free from the right of the dowress ; and 
 in making such determination i-egard shall be had to the inter- 
 ests of ail the parties. 
 
 (2) No ex parte order shall be made unless where service 
 upon the dowress cannot be conveniently made. 
 
 (3) If a sale free from such dower is ordered, all the right 
 and interest of such dowress shall pass thereby ; and no con- 
 veyance or release to the purchaser shall be required from such 
 dowress ; and the purchaser, his hairs and assigns, shall hold 
 the premises freed and discharged from all claims by virtue of 
 the rights of any such dowress, whether the same be to any 
 undivided share, or to the whole or any part of the premises 
 sold. 
 
 (4) In such case the Court or Judge may direct the payment 
 of such sum in gross out of the purchase money to the person 
 entitled to dower as may be deemed, upon the principles appli- 
 cable to life annuities, a reasonable -satisfaction for such right 
 or interest ; or may direct the payment, to the person entitled 
 to dower of an annual sum, or of the income or interest to be 
 derived from the purchase money or any part thereof, as may 
 seem just, and for that purpose may make such order for the 
 investment or other disposition of the purcha.se money or any 
 part thereof as may be necessary. 60 V. c. 14, s. 30. 
 
 Application 
 for order 
 allowing Bale 
 of land Dy 
 personal rep- 
 reBentatives 
 free of dower 
 
 1/5. — (1) The real and personal estate of every man dying, vvidow 
 after the first day of July, 1895, intestate and leaving a widow entitled to 
 but no issue shall in all cases where tlio net value of such real not'exceedin^ 
 and personal estate does not exceed $1,000, belong to his widow $J.,ooo. 
 absolutely and exclusively. 58 V. c. 21, s. 2. 
 
 (2) Where the net value of the real and personal estate of Where estate 
 any person who shall die intestate as in this section mentioned i^"^* 
 shall exceed the sum of $1,000, the widow of such intestate 
 
s 
 
 C 
 
 r: 
 
 ..I 
 
 r 
 
 03 
 
 616 
 
 Chap. 127. 
 
 DEVOLUTION OF ESTATES. 
 
 Sec. 1 2 (2). 
 
 Widow's share 
 in remainder 
 of estate. 
 
 Real estate 
 not disposed 
 of within a 
 year to vest in 
 neirs unless 
 Caution ref?- 
 istered. 
 
 Rev. Stat. 
 c. 138. 
 
 Form of 
 Caut on 
 
 Re.. 
 0.136. 
 
 shall after payment of debts, funeral and testamentarj' 
 expenses and expenses of administration be entitled to $1,000, 
 part thereof absolutely and exclusively, and shall have a 
 charge upon the whole of such real and personal estate, after 
 payment as aforesaid, for such .^1,000, with interest thereon 
 from the date of the death of the intestate at 4 per cent, per 
 annum until payment. 58 V. c. 21, s. 3. 
 
 (3) The provision for the widow intended to be made by 
 this section shall be in addition and without prejudice to her 
 interest and share in the residue of the real and personal 
 estate of the intestate remaining after payment of the sum of 
 $1,000 and interest as aforesaid, in the same way as if such 
 residue had been the whole of the intestate's real and jjersonal 
 estate, and this section had not been enacted. 58 V. c. 21, s. 4. 
 
 l!t. — (1) Real estate of persons dying on or after the 
 4th day of May 1891 not disposed of or conveyed by exe- 
 cutors or administrators within tifnUrrTiuonth s after the death 
 of the testator or intestate shall, subject to The Land Titles 
 Act in the case of land registered under that Act, &t the 
 expiration of the said period, whether probate of the will 
 of the testator ; ■ letters of administration to the estate 
 of the intestate has been taken or not, be deemed thence- 
 forward to be vested in the devisees or heirs beneficially 
 entitled thereto, as such devisees or heirs, (or their assigns, as 
 the case Jiiay be,) without any conveyance by the executors or 
 administrators, unless such executors or administrators, if an)-, 
 have caused to be registered, in the registry office, or land 
 titles office where the land is under The Land Titles Act, of 
 the territory in which such real estate is situate, a Caution 
 under their hands that it is or may be necessary for them to 
 sell the said real estate, or part thereof, under their powers 
 and in fulfilment of thair duties in that behalf ; and in case 
 of such Caution being so registered, this section shall not 
 apply to the real estate referred to therein for twelve months 
 from the time of such registration, or from the time of the 
 registration of the last of such Cautions if more than one are 
 registered. 54 V. c. 18, s. 1 (1), 50 V. c. 20, s.s. 3, 4 ; GO.V. 
 c. 3, s. 3 ; c. 14, s. 29 part. 
 
 (2) The Caution may be in the form or to the effect 
 following : — 
 
 We (..4. B iuul G. £>.,) executoM oi (or admiitistmtors with the icill 
 annexed of , or udminintratuts of) , who died on or aliout tlie 
 
 (lay of , do hereby certify that it may he necei/sary 
 
 for us under our [)i)wors and in fulKlliiient of our duties as executors (or 
 admininlrdton) to sell tliu real estate of the said , or part 
 
 thereof, [or the caution may specifij any partieular parts ov pufceh), and of 
 this all persons concerned are hereby roiiui'''."' to take notice ; — 
 
 And the execution of the said Caution shall be verified by 
 the affidavit of a subscribing v/itness in maraer prescribed by 
 The Registry Act. 
 
 m 
 
Sec. 14 
 
 DEVOLUTION OF ESTATES. 
 
 Chap. 127. 
 
 617 
 
 (3) In ca.se the Caution specifies the tracts or parcels If Caution 
 which the executors or administrators may have occasion to t{^e*'only*°*^* 
 sell, the Caution shall be effectual as to tho.se tracts or parcels affected, 
 only. 
 
 (4) The executors or administrators before the expiration Withd-awalof 
 of the twelve months may file a certificate withdrawing the Caution. 
 Caution mentioned in the preceding .subsections ; or with- 
 drawing the same as to any parcel of land specified in such 
 certificate and such certificate of withdrawal may be to the 
 
 efi'ect following : 
 
 We executors {ur administrators) of . do 
 
 hereby withdraw the Caution heretofore registered with respect to the 
 
 refil estate of the said , (or as the case may be). 64 V. 
 c. 18, s. 1 '2-4). , 
 
 (5) The certificate of withdrawal shall be verified by the Certificate of 
 affidavit of a subscribing witness which shall be in the follow- be verifiwl on** 
 ing form, or to the like effect. oath. 
 
 I, G. 11., etc., ..lah." oath and say: I ain well acqur.inted with A. B. 
 and C. D. namud in the above certiticate ; that 1 was present and did see 
 the said certificate signed by the said A. B. and C. D. ; that I am a sub- 
 scribing witness to the said certificate and I believe the said A. B. and 
 C. D. to be the persons who registered the caution referred to in the 
 said certificate. fiO V. c. 15, Sched. A. (42). 
 
 (6) Before the expiry of a caution another caution may be Renewal of 
 registered, and so on from time to time as long as the execu- '=«"'■"" 
 tors or administrators consider such action necessary and 
 
 every such caution shall continue in force for twelve months 
 from the time of its registration. 60 V. c. 15, Sched. A. (43). 
 
 (7) Tlie limitation of the operation of this .section to the Certain con 
 real estate of persons dying on or after the 4th day of May, aggcJ'ed'' °°* 
 1891, shall not affect any conveyance made before the 13th 
 
 day of April, 1897. (iO V. c. 14. s. 29, part. 
 
 1 4. Where executors or administrators have, through over- KeRiatration 
 sight or otherwise, omitted to register a Caution within twelve after"tweive 
 months after the death of the testator or intestate, as provided months from 
 by the preceding section, or have omitted to re-register a feH*tato"/. 
 Caution as required by the said section, they may register the 
 Caution in either case notwithstanding the lapse of the twelve 
 months respectively ])rovided for the said purposes, provided proyigo. 
 they register therewith : — 
 
 1. The affidavit of verification therein mentioned ; 
 
 2. A further affidavit stating that they find or believe 
 
 that it is or may be ncces.sary for them to sell the 
 real estate of the testator or intestate (or the part 
 thereof mentioned in the caution, as the case may 
 be,) under their powers and in fulfilment of their 
 duties in that behalf; • 
 
618 
 
 Chap. 127. 
 
 DEVOLUTION OF ESTATES. 
 
 Sec. 1 
 
 
 Effect of regiS' 
 tratioD. 
 
 E 
 
 c 
 
 C33 
 S3 
 
 ExecutorB, 
 etc., to have 
 certain powers 
 as to disposi- 
 tion of lands. 
 
 Proviso. 
 
 Rev. Stat. 
 0.61. 
 
 Application 
 of section. 
 
 3. The con.sent in writing of any adult devisees or heirs 
 
 whose property or interest would be affected ; and 
 
 4. An affidavit verifying such consent ; or 
 
 5. In the absence and in lieu of such consent,an order tiigned 
 
 by a High Court Judge or County Court Judge, or 
 the certificate of the Official Guardian approving 
 of and authorizing the Caution to be registered, 
 which order or certificate the Judge or Official 
 Guardian may make with or without notice on 
 such evidence as satisfies him of the propriety 
 of permitting the Caution to be registered ; and 
 the order to be registered shall not require veri- 
 fication and shall not be rendered null by any 
 defect or .supposed defect of form or otherwise. 
 56 V. c. 20, s. 1. 
 
 15. In case of such caution being registered or re- 
 registered under the authority of the preceding section such 
 Caution shall have the same effect as a Caution i-egistered 
 within twelve months from the death of the testator or intes- 
 tate, save as regards persons who in the meantime may have 
 acquired rights for valuable consideration from or through the 
 heirs or devisees, or some of them ; and save also and subject 
 to any equities on the part of non-consenting heirs and 
 devisees, or persons claiming under them, for improvements 
 made after the expiration of twelve months from the death of 
 the testator or intestate, if their lands are afterwax'ds sold by 
 such executors or administrators. 56 V. c. 20, s. 2. 
 
 lO. — (1) Executors and administrators in whom the real 
 estate of a deceased person is vested under this Act shall be 
 deemed to have as full power to sell and convey such real 
 e.state for the purpose, not only of paying debts, but also of 
 distributing or dividing the estate among the parties benefi- 
 cially entitled thereto whether there are debts or not, as they 
 have in regard to personal estate ; Provided always that where 
 infants or lunatics are beneficially entitled to such real estate as 
 heirs or devisees, or where other heirs or devisees do not concur 
 in the sale and there are no debts, no such sale shall be valid as 
 I'espects such infants, lunatics, or non-concurring heirs or 
 devisees, unless the sale is made with the approval of the 
 Official Guardian appointed under Tlie Judicature Act ; and 
 for this purpose the Official Guardian aforesaid shall have the 
 .same powers and duties as he has in the case of infants. 
 
 (2) This section shall not apply to any administrator where 
 the letters of administration are limited to the personal estate, 
 exclusive of the real estate, and shall not derogate from any 
 right possessed by an executor or administrator independently 
 of this Act. 54 V. c. 18, s. 2. 
 
Seel 
 
 Sec. 19. 
 
 DEVOLUTION OF ESTATES. 
 
 Cliap. 127. 
 
 619 
 
 11. (1) Sales of .such rea! estate as aforesaid made prior to Certain past 
 the 4th day of May, 1891, by executors and administrators ^tl? ITpproval 
 with the written consent or approval of the Official Guardian, of Official 
 as required by section 8 of this Act, shall be deemed ^"J,"^* j 
 valid as respects all the heirs and devisees, whether infants or 
 of full age though there were no debts of the deceased to be 
 paid out of the proceeds. 
 
 (2) The approval of the Official Guardian to be expressed in Certain paat 
 writing under his hand shall be sufficient to confirm and confirmed by 
 render valid, as respects all the heirs and devisees though Official 
 there were no debts of the deceased to be paid out of the pro- ''"*''""»"• 
 ceeds, any sale made prior to the said 4th day of May, 1891, . ■ 
 
 any case in which the value of the infant's share is under S50 
 
 (3) Sale.s of such real estate as aforesaid made prior to the Other cases ot 
 said 4th day of May, 1891, by executors and administra- 
 tors in other cases shall be adjudicated upon according to equity 
 
 and good conscience in view. of all the circumstances and every 
 sale which has been made in good faith and for a fair consid- 
 eration shall be held valid. 
 
 (4) Every sale made prior to the said 4th day of May, 1891» Certain 
 shall be valid unless it was questioned in an action within one valid unless 
 year from the said date, except in any case where under this questioned 
 Act the approval of the Official Guardian was required and year. " ""* 
 was not obtained. 
 
 (5) In case any sale made prior to the 4th day of May, 1891, Where past 
 is now, or heretofore has been, the subject of an action, and gubjec^^f'''"' 
 relief is given to either party under this section, the party ob- action, 
 taining such relief shall pay the costs of the action. 54 V. 
 
 c. 18, s. 3. 
 
 IH. Where prior to the 4th day of May, 1891, there had Persons 
 been a sale by executors or ac'ministrators, no infant being 8hare*o"Vir 
 concerned and no consent or approval of the Official Guardian ohast money 
 having been obtained, but the person or one of the per.sons, 1° '^".^"""'^ 
 beneficially entitled has received and accepted, or shall here- 
 after receive and accept, his share or supposed share of the 
 purchase money, such acceptance shall be deemed a confirma- 
 tion of the sale as respects such person. 54 V. c. 18, s. 4. 
 
 1!>. Persons bona fide purchasing real estate from the execu- B<>na fids 
 tors or administrators of a deceased owner in manner author- es^tateTo "old 
 ized by this Act shall be entitled to hold the same freed and same free 
 discharged from any debts or liabilities of the deceased owner '^'"" "^"''*- 
 not specifically charged thereon otherwise than by his will, 
 and from all claims of his devisees and heirs at law as such, 
 and the purchasers .shall not be bound to .see to the application 
 of the purchase money. 54 V. c. 18, s. 5. 
 
G20 
 
 Chap. 127. 
 
 DEVOLUTION OF ESTATES. 
 
 Sec. 20. 
 
 I 
 
 i 
 
 r 
 do 
 
 73 
 
 Provigo, 
 
 Bona fide pur- "40. Persons bona fide purchasing real estate from a devisee 
 eaute from whose devise has been assented to by the executors or adminis- 
 deviafleto hold trators by deed, or by writing under their hand, or bo7ia fide 
 debts''**''"™ purchasing tlie real estate from any heir at law or devisee to 
 whom the same has been conveyed by the executors or 
 administrators shall be entitled to hold the same freed and 
 discharged from any unsatisfied debts and liabilities of the 
 deceased owner not specifically charged thereon otherwise 
 than by his will ; but nothing herein contained shall lessen or 
 alter the rights of creditors as against the executors or adminis- 
 trators personally, or the rights of creditors as against any 
 devisee heir at law or next of kin in whom real estate of a 
 deceased debtor has been vested by the executors or adminis- 
 trators, or permitted to become vested, to the prejudice of such 
 creditors. 54 V. c. 18, s. 6. 
 
 wdwe.°' '""■ ^1 — (1) The Official Guardian shall have i^ower wiih the 
 approval of the Lieutenant-Governor in Council, or of the 
 Judges of the High Court of Justice, to frame Rules regulat? ^^ 
 the practice and j)rocedure to be followed in all proceedingc:, 
 under this Act, in which the privity or consent of such Official 
 Guardian shall bo required; and also to frame a tariff of the fees 
 to be allowed and paid to solicitors for services rendered in such 
 proceedings. Such Rules and tariffs when approved as afore- 
 said shall be published in the Ontario Oazette. and shall there- 
 upon have the force of law; and the same shall be laid before 
 the Legislative Assembly at the next session after the promul- 
 gation thereof. 
 
 of^feepuS*"' ^^) In ca.se the Lieutenant-Governor sees occasion in conse- 
 Offioial Guar- quence of the illness or absence of the Official Guardian or for 
 dian pro tern, c^j^y other cause, he may appoint a person to act as the Deputy 
 
 pro tern, of the Official Guardian for the purposes of this Act; 
 
 and a deputy appointed by the Lieutenant-Governor shall 
 
 have all the powers of the Official Guardian as respects the said 
 
 purposes. 
 
 (3) Affidavits may be u.sed in proceedings taken in pursu- 
 ance of this Act ; and such affidavits may be sworn before any 
 Commissioner for taking affidavits or before a Notary Public. 
 54 V. c, 18, H. 7. 
 
 Affidavits, 
 
 Interpreta- 
 tion. 
 
 'L»n 1. 
 
 *ii*i. The words and expressions hereinafter mentioned which 
 in their ordinary signification have a more confined or a dif- 
 ferent meaning, shall, where they occur in the next fourteen 
 sections, numbered from 23 to 36 inclusive, except where the 
 nature of the provision or the context thereof excludes such 
 construction, be interpreted as follows, that is to say : 
 
 1. " Land " shall extend to messuages, and all other heredita- 
 ments, whether corporeal oi incorporeal, and to money to be 
 
Sec. 24. 
 
 DEVOLUTION OF ESTATES. 
 
 Chap. 127. 
 
 621 
 
 said 
 
 laid out in the purchase of laud, und to chattels and other per- 
 sonal property transniissihle to heirs, and also to any share ot 
 the same here<litaiiients and properties, or any of them, and 
 to any estate of inheritance, or estate for any life or lives, oi* 
 other estate transmissible to h jirs, and to any possibility, right 
 or title of entry or action, and any other interest capable of 
 being inherited, and whether the .same estates, possibilities, 
 riiihts, titles and interests, or any of them, are in possession, 
 reversion, remainder or contingency ; 
 
 2 "The purcha.ser " shall mean the per.sonwho last acquired •' Punhaeer." 
 the land otherwise than by descent or than by any parti- 
 tion, by the effect of which the land becomes part of, or 
 descendible in the same manner as, other lantl ac(|uircd by 
 descent ; 
 
 3. " Descent " shall mean the title to inherit land by reason "Descent." 
 of consanguinity, as well where the heir is an ancestor or colla- 
 teral relation, as where be is a child or other issue ; 
 
 4. "Descendants " of any ancestor shall extend to all persons "Descend- 
 who must trace tboii descent through such ancestor ; anccHtor*"^ 
 
 5. "The jjcrson la.st entitled" to land shall extend to the " Person last 
 last person who had a right thereto, whether he did or did not janj »** *° 
 obtain the possession or the receipt of the rents and profits 
 
 thereof ; 
 
 6. " As,surance " shall mean any deed or instrument (other "Asgurance." 
 than a will), by which any land may be conveyed or transferred 
 
 at law or in equity. R. S. O. 1887, c. 108, s. 11 ( 1-6). 
 
 DESCENTS BEFORE IST JuLY, 1834. 
 
 *iili. This Act .shall not extend to any descent which took Act not to 
 place on the death of any person who died liefore the first degcent8°be 
 day of July, 1834. R. S. 0. 1887, c. 108, .s. 12. fore ut July, 
 
 1834. 
 
 DESCENTS SINCE IST JULY, 1834. 
 
 lich 
 dif- 
 
 rteen 
 the 
 
 such 
 
 34. The next six sections of this Act, numbered from 25 The next seven 
 to 30 inclusive, shall not have operation retrospectively to a o^fe'rateretro*-" 
 period of time anterior to the sixth day of March, 1834, so as, spectively in 
 by force of any of their pi'ovisions, to render any title valid, '=''''*'*'" '^''^*" 
 which in regard to any particular estate had, prior to that 
 day, been adjudged, or has been or may be in any suit which 
 was depending on that day, adjudged invalid on account of 
 any defect, imperfection, matter or thing which is by such 
 sections altered, supplied or remedied; but in every such ca.se 
 the law in regard to any such defect, imperfection, matter or 
 thing, shall, as applied to such title, be deemed and taken to 
 
622 
 
 Chap. 127. 
 
 DEVOLUTION OF ESTATES. 
 
 Sec. 24. 
 
 be as if these sections of thi.s Act had not been passed. R. S. O. 
 1887, c. 108,8. 13. 
 
 g 
 
 c 
 
 if 
 
 r 
 
 mm 
 
 03 
 
 Descent shall 
 always be 
 traced from 
 the purchaser. 
 Who to be 
 deemed pur- 
 ohaaer. 
 Imp. Act, 3-4 
 W. iv. 0. 106, 
 
 8.3. 
 
 Heir entitled 
 under a will 
 shall take as 
 devisee, and a 
 limitation to 
 the grantor or 
 his heir shall 
 create an 
 estate by 
 purchaav 
 
 Imp. Act, 3-4 
 W. iv. 0. 106, 
 
 8.3. 
 
 Where heirs 
 take by pur- 
 chase under 
 limitations to 
 the heirs of 
 their ancestor 
 the land shall 
 descend, as if 
 the ancestor 
 had been the 
 parchaaer. 
 Imp. Act, 3-4 
 W. iv. 0. 106, 
 a. 4. 
 
 After the 
 death of a per- 
 eon attained, 
 bis descen- 
 dants may 
 inherit. 
 
 Imp. Act, S-4 
 W. iv. c. 106, 
 8. 10. 
 
 535. In every case on and after the first day of July, 1834, 
 descent shall be traced from the purchaser ; and to the intent 
 that the pedigree may never be carried further back than 
 the circumstances of the case and the nature of the title 
 require, the person last entitled to the land shall for the 
 purposes of this Act be considered to have been the purchaser 
 thereof, unle.ss it is proved that ho inherited the same, in which 
 case the per-son from whom he inherited the same shall be 
 considered to have been the purchaser, unless it is proved that 
 he inherited the same ; and, in like manner, the last person from 
 whom the land is proved to have been inherited shall in every 
 case be considered to have been the purchaser, unless it is proved 
 that he inherited the same. R. S. O. 1887, c. 108, s. 14. 
 
 86. Where land is devised by a testator dying after 
 the first day of July, 1834, to the heir or to the person who 
 shall be the heir of such testator, such heir shall be considered 
 to have acquired the land as a devisee and not by descent ; 
 and where any land is limited by any assurance, executed 
 after the said first day of July, 1834, to the person or to the 
 :ieiis of the person who thereby conveys the same land, such 
 person shall be considered to have acquired the same as a pur- 
 cliaser, by virtue of such assurance, and shall not be considered 
 to be entitled thereto as of his former estate or part thereof. 
 R. S. 0. 1887, c. 108, s. 15. 
 
 27. Where a person acquires land by purchase, under 
 a limitation to the heirs, or to the heirs of the body of any of 
 hi.s ancestors, contained in an assurance executed after the first 
 day of July, 1834, or under a limitation to the; heirs, or to the 
 heirs of the body of any of his ancestors, or under any limita- 
 tion having the same effect, contained in a will of any testtator 
 dying after the said first day of July, 1834, then and in 
 any of such cases, such land shall descend, and the decent 
 tliereof shall be traced as if the ancestor named in such limita- 
 tion had been the purchaser of such land. R. S. 0. 1888, 
 c. 108, s. 16. 
 
 !C8. Where the person from whom the descent of any land is 
 to be traced has had any relation who, having been attained, 
 died before such descent took place, then such attainder shall 
 not prevent any person from inheriting such land who would 
 have been capable of inheriting the same by tracing his descent 
 through such relation if he had not been attained, unless such 
 land escheated in consequence of such attainder before the first 
 day of July, 1834. R. S. O. 1887, c. 108, s. 17. 
 
Sec. 3*. 
 
 DEVOLUTION OF ESTATES. 
 
 Chap. 127. 
 
 623 
 
 /89. Proof of entry by the heir after the death of the ftnce.s- Pro.f of entry 
 tor shall in no ease be necessary in order to prove title in such ^'^ •""" ""* 
 heir, or in any person claiming by or through him. R. S. O. '^"^*'*'"'^' 
 1887, c. 108, .s. 18. 
 
 30. Where any assurance executed before the said first day 
 of July, 1834, or the will of any person who died before 
 that day, contains any limitation or gift to the heir or heirs 
 of any person under which the person or persons answering 
 the description of heir is entitled to an estate by purchase, 
 then the person or persons who would have answered such 
 description of heir if this Act had not been pas.sed shall become 
 entitled by virtue of such limitation or gift, whether the 
 person named as ancestor was or was not living on or after 
 the .said first day of July, 1834. R. S. O. 1887, c. 108, s. 19. 
 
 DESCENTS BETWEEN IST JULY. 1834. AND IST JANUARY, 1852. 
 
 LiinitationH 
 made before 
 iHt Julv, 1834, 
 to the heirs of 
 a iMjrHon then 
 living, tihall 
 take effect as 
 ii this Act had 
 not bet ii 
 passed. 
 
 Imp. Act, 3-4 
 W. iv. c. 106, 
 8. 12. 
 
 3 1 . As respects every de.scent between the first day of July, Descents be- 
 1834, and the thirty-first day of December, 1851, both days ^^^^"j^«_^/„*^ 
 included, and as respects any descent not included or pro- sist becem- 
 vided for in the sections of this Act numbered from 41 to 67, ^^> ^^^• 
 both included, the following sections, numbered from 32 to 36, 
 both included, shall apply retrospectively to the first day of 
 July, 1834, and also pro.spectively, as the case may be, and 
 shall be con.^trued as if the same had been passed on the said 
 first day of July, 1834. R. S. O. 1887. c. 108. s. 21. 
 
 33. No brother or sister shall be con.sidered to inherit imme- Brothers and 
 diately from his or her brother or sister, but every descent from Bisters shall 
 a brother or sister shall be traced through the parent. R. S. O. through*''*" 
 1887, C. 108, S. 22. parents. 
 
 Imp. Act, 8, 6. 
 
 33. Every lineal ancestor shall be capable of being heir to Lineal ances- 
 any of his issue, and in any case where there is no issue of the '"^ '? ^'^ 
 purchaser, his nearest lineal ancestor shall be his heir in pre- rencelo'col- 
 ference to any person who would have been entitled to inherit, lateral persons 
 either by tracing his descent through such lineal ancestor, or througlf him. 
 in consequence of there being no descendant of such lineal an- 
 cestor ; so that the father shall be preferred to a brother or 
 sister, and a more remote lineal ancestor to any of his issue, Ij^P/^'^^*,^'* 
 other than a nearer lineal ancestor or his issue. R. S. 0. 
 c. 108, s. 23. 
 
 1887, 8. 6. 
 
 c. 106, 
 
 34. None of the maternal ancestors of the person from whom The male line 
 the descent is to be traced, nor any of their descendants, shall to be preferred. 
 be capable of inheriting until all his paternal ancestors and 
 their descendants have failed ; and no female paternal ancestor imp. Act, 3-4 
 of such person, nor any of her descendants, shall be capable of ^7.'^' °' ^ ' 
 inheriting until all his male paternal ancestors and their de- 
 scendants have failed ; and no female maternal ancestor of such 
 person, nor any of her descendants, .shall be capable of inherit- 
 
624 
 
 Chap. 127. 
 
 DEVOLUTION Ot ESTATES. 
 
 Sec. 34. 
 
 ing jintil all his male maternal ance.stors and their descendants 
 have failed. R. S. O. 1887, c. 108, s. 24. 
 
 O 
 
 c 
 
 T 
 < 
 
 The mother ot 
 the more re- 
 mote male an- 
 cestor to bi' 
 preferred to 
 the mother of 
 esH remote 
 male anceHtor. 
 Imp. Act, 'i-i 
 W. iv. 0. 100, 
 8. H. 
 
 Half blood to 
 inherit after 
 the whole 
 blood nf the 
 lame def(iee. 
 
 I:^p. Act. 3-4 
 W. iv. c. 106, 
 I. 9. 
 
 35. Where there is a failure of male paternal ancestors of 
 the person from v/hom the de.scent is to be traced, and their 
 descendants, the mother of his more remote male paternal an- 
 cestor, or her descendants, shall be the heir or heirs of sucIj 
 person, in preference to the mother of a le.ss remote male pa- 
 ternal ancestor, or her de.scendants ; and where there is a failure 
 of male maternal ance.stors of such person, and their descen- 
 dants, the mother of his more remote male maternal ancestor, 
 and her descendants, shall be the heir or heirs of such person, 
 in preference to the mother of a less remote male maternal an- 
 cestor and her descendants.' R. S. O. 1887, c. 108, s. 25. 
 
 36. Any person related to the person from whom the descent 
 is to be traced by the half blood, shall be capable of being his 
 heir, and the place in which any such relation by the half blood 
 shall stand in the order of inheritance, so as to be entitled to 
 inherit, shall be next after any relation in the same degree of 
 the whole blood and his issue, where the common ancestor is 
 a m'lle, and next after the common ancestor where such com- 
 mon ancestor is a female ; so that the brother of the half blood 
 on the part of the father shall inherit next after the sisters of 
 the whole blood on the part of the father and their issue, and 
 the brother of the half blood on the part of the mother shall 
 inherit next after the mother. R. S. O. 1887, c. 108, s. 26. 
 
 r 
 
 Deicenta 
 between the 
 Ikt January, 
 1852, and Ist 
 July, 18f.6. 
 
 DE.SCENTS BETWEEN IST JANUARY, 1852, AND l.ST JULY, 1886. 
 
 37. The twenty -seven sections numbered from 41 to 67, 
 both included, shall apply retrospectively to the first day 
 of January, 1852, inclusive, and also prospectively, as the case 
 may be, and shall be construed as if the same had been passed 
 on the said first day cf January, 1851, but sections 38 to 55 
 inclusive shall not apply to estates of persons dying or after 
 the Ist day of July, 1886 ; and sections 56 to 67 inclusive shall, 
 as to the estates of such last mentioned persons, apply only 
 subject to the provisions of sections 1 to 21 inclusive. 60 V. 
 c. 15, s. 3. 
 
 Interpretation 38. In the said twenty-seven sections of this Act numbered 
 .8 to sections ^^^^ ^j ^^ g^^ ^^^^j^ inclusive— 
 
 "Realeatate." ]. "Real estate" shall l:e construed to include every estate, 
 interest and right, legal and equitable, held in fee simple or for 
 the life of another (except as in section 59 is excepted) in 
 lands, tenements and here ditaments in Ontario, but not such 
 as are determined or extinguished by the death of the intestate 
 seised or possessed thereof, or so otherwise entitled thereto., nor 
 to leases for years ; and 
 
Sec. 43. 
 
 DEVOLUTION OF ESTATES. 
 
 Chap. 127. 
 
 625 
 
 1886. 
 
 2. "Inheritance," as therein used, shall be understood to " inhmit- 
 mean real estate as herein defined, descended or succeeded to, *"'=•'•" 
 according to the provisions of the said twenty-seven sections. 
 R. S. O. 1887, c. 108, s. 28. 
 
 IJO. Where, in the said sections, numbered frojn 41 to 67 '^'T^'"'.?'- 
 both included, any person is described as living, it shall be i'i''vi„p'" „r 
 understood that he was living at the time of tiie death of the "BHriavinK 
 intestate from whom the descent or succession came, and '^ ' 
 where any person is described iis iiaving died, it shall be 
 understood that he died before such intestate. R. S. 0. 1887, 
 c. 108, s. 29. 
 
 40. Where in any of the said sections the expressions "Where the 
 
 " where the estate came to the intestate on the part of the ^"'s^' «»">« '» 
 lather or mother, as the case may be, are used, the same <m th« part of 
 shall be construed to include every case where the inheiitance ^J'" ','ti|*^,'''" "*" 
 came to the ' itestate by devise, gift or descent from the parent iiie»ning'of, 
 referred to, or from anv relative of the blood of such parent. 
 R. S. 0. 1887, c. 108, s". 30. 
 
 4 1 . Where any ))erson dies seised in fee simple or for the How real ch- 
 life of another of any real estate in Ontario, without having J**^ "^ ''J' '"" 
 
 ii-111-ii 1111 1 testate (lying 
 
 lawlully devised the same, sucli real estate shall descend or mi or after Ist 
 pass by way of succession in manner following, that is to say : — ''i'''"ii''iT'.).**j^' 
 
 Flrsthj. To the lineal descendants of the intestate, and those 
 claiming by or under them, pe?' atii'pes ; 
 
 Secondly. To his father ; 
 
 Third! ij. To his mother ; and 
 
 Fourthly. To his collateral relatives 
 
 subject in all cases to the rules and regulations hereinafter pre- 
 scribed. R. S. O. 1887, c. 108, s. 31. 
 
 4'i. If the intestate leaves several descendants in the direct As to de«cend- 
 line of lineal descent, and all of equal degree of consanguinity Jl"'* J" ''T"'^ 
 to such intestate, the inheritance shall descend to such persons sanguinity. 
 in equal parts, however remote from the intestate the common 
 degree of consanguinity maj' be. R. S. 0. 1887, c. 108, s. 32. 
 
 ■II 
 
 4J{. If one or more of the children of such intestate are if some ohil- 
 living and one or more are dead, the inheritance .shall descend ''/^^"oth ''^'"* 
 to the children who are living, and to the descendants of dead leaving 
 such children as have died ; so that each child who is living '"""e- R">'- >«> 
 shall inherit such share as would have descended to him if all 
 the children of the intestate, who have died leaving i.ssue, had 
 been living ; and so that the descendants of each child who is 
 dead shall inherit in equal shares the .share which their parent 
 would have received if living. R. S. O. 1887, c. 108, s. 33. 
 p 1 
 
<520 
 
 Clmp. 127. 
 
 DKVOMTTION OF ESTATES. 
 
 Sec. 44. 
 
 o 
 
 % 
 
 c 
 -z 
 
 < 
 
 r, 
 
 if- 
 
 Saiiip nile w 44. The lulo of ilescenfc prescribed in the la.st preceding sec- 
 
 HcViiVi'i'mtH ill '^'"" ^'"^" 'W'P'y '" every case where the descendants of the in- 
 
 «nf(|iiul <li" testate, entitled to share in the inlieritance, are of unciiual 
 
 t{re.'« of con- dejjrees oi' consan^iuinitv to the intestate, so that those wiio are 
 
 in the nearest <le<,Mee ot c()nsanj,'uinity sliall take the sliare.«» 
 
 whicli would have descended to tlieni, had all the descendants 
 
 in the .same degree of consanguinity who liavo died leaving 
 
 issue, been living, and so that the i.ssue of the descendants who 
 
 have died, shall respectively take the shares which their parents, 
 
 if living, would have received. R. S. O. I8H7, e. 108, s. 34. 
 
 If theint«'Mtate 45. In cose the intestate dies without lawful descendants 
 leaves no de- „ jj,j leaving a father, then the inheritance shall go to such 
 
 scenaant,riK<>t ii-i. i. i 
 
 of father, hxtlier, unless the inheritance caiiie to the intestate on the part 
 
 •mother, etc. ^f \^\^ mother, and such mother is living; and if such mother is 
 dead, the inheritance descending on her part shall go to the 
 father for life, and the reversion to the brothers and sisters of 
 the intestate and their descendants, aceonling to the law of in- 
 heritance by collateral relatives hereinafter provided ; and if 
 there are no such brothers or sisters, or their descendants living 
 such inheritance shall de.scend to the father. R. S. O. 1887, 
 c. 108, s. 35. 
 
 r 
 
 If there is no 40. If the intestate dies without descendants and leavini, 
 to'inherit*'"^'' "^ father, or leaving a father not entitled to take the inherit- 
 ance under the last preceding section, and leaving a mother 
 ami brothers or sisters, or the descendants of brothers or .sisters, 
 then the inheritance shall descend to the mother during her 
 life, and tlie reversion to such brothers or sisters of the intestate, 
 as are living, and the descendants of such as are dead, 
 according to the same law of inheritance hereinafter provided ; 
 and if the intestate in such case leaves no I rother or sister, nor 
 any descendant of any brother or sister, the inheritance shall 
 descend to the mother. R. S. O. 1887, c. 108. s. 3U. 
 
 If there 
 is neither fa- 
 ther nor mo- 
 ther. 
 
 41. If there is no father or mother capable of inheriting 
 the estate, it shall descend in the cases hereinafter specified to 
 the collateral relatives of the intestate ; and if there are several 
 of such relatives all of equal degree of consanguinity to the 
 intestate, the inheritance shall descend to them in equal parts, 
 however remote from the intestate the common degree of con- 
 .saiiguinity may be. R. S. 0. 1887, c. 108, s. 37. 
 
 Succession of 48. If all the brotherri and sisters of the intestate are living, 
 sisters and"^ the inheritance shall descend to such brothers and sisters ; and 
 their descend- if any one or more of them are living and any one or more are 
 *"*'*• dead, then to the brothers and sisters and every of them who are 
 
 living, and to the descendants of such brothers and sisters as 
 have died, so that each brother or sister who is living shall 
 inherit such share as would have descended to him or her, 
 if all the brothers or sisters of the intestate who have died leav- 
 ing issue had been living, and so that such descendants shall 
 
See. 53. 
 
 DRVOLUTION OF ESTATES. 
 
 Chap. 127. 
 
 627 
 
 inherit in tMiual .shares tlic sliiirc which their parent, if iivin;;, 
 woiihl have received. H. S. O. 1H87, c. 108, s. .S.S. 
 
 49. The sjinie law of inheritance prcscrilied in tlie la.st sec- .\» to siulide- 
 tion shall prevail as to the other direct lineal descendants of ;','i['^'Jj',Jj''* '" 
 «very hrothiu' and si.sterof the intestate, to the remotest degree, (U-fOf.". 
 wherever sudi descendants are of une(|ual de<i;ree. R. S. O. 
 1.S.S7, c. 108, s. :J}). 
 
 50. If tliere i.s no heir entitled to take under any of the pre- If tlicre be no 
 ceding thirteen .sections, tlie inheritance if the same came to ,',',,'.cedin'f?'^ iV " 
 tiie intestate on the part of his father, shall descend : wcti<mH. 
 
 Firstly. To tlie brothers and sister.s of the fatlier of the in- 
 testate in equal .shares, if all are living; 
 
 Secondbj. If one or more are living, and one or more have 
 <lied leaving is.sue, then to such brothers and sisters as are 
 living, and to the descendants of such of the said brothers and 
 sisters as have died — in ecjual shares ; 
 
 'Jlilrdlif. If all such brotliers and sisters have died, then to 
 their descendants ; and in all such cases the inheritance shall 
 descend in the same manner as if all such brothers and sisteis 
 had been the brotliers and sisters of the intestate. R. S. O. 
 1887, c. 108, s. 40. 
 
 51. If there be no brothers or si.sters, or any of them, of Further provi- 
 the father of the intestate, and no descendants of such brothers "'""■ 
 
 or sisters, then the inheritance shall descend to the brothers 
 and sisters of the niothsrof the intestate, and to the descendants 
 of such of the said brothers and sisters as have died, or if all 
 have died, then to their descendants, in the .same manner as 
 if all such brothers and si.sters had been the brothers and 
 >*isters of the father. R. S. O. 1887, c. 108, s. 41. 
 
 il 
 
 5'^. In all cases not provided for by the next preceding fif- Further provi- 
 teen sections, where the inheritance came to the intestate on the "'■*" 'f ">*^ •""■ 
 part of his mother, the same, instead of descending to the bro- the mother'* 
 thers and sisters of the intestate's father, and their descen- sid""- 
 •lants, as prescribed in section 50, .shall descend to the 
 brothers and sisters of the intestate's mother, and to theii* 
 tlescendants, as directed in the last preceding .section ; and if 
 there are no such brothers and sisters or descendants of tliem, 
 then the inheritance .shall descend to the brothers and sisters, 
 and their descendants, of the intestate's father, as before pre- 
 scribed. R. S. O. 1887, c. 108, s. 42. 
 
 53. In cases where the inheritance did not come to the in- if estate came 
 testate on the part of either the father or the mother, the inheri- "^'*',""' "" ^*- 
 tance shall descend to.the brothers and sisters both of the father thers side, 
 and mother of the intestate in equal shares, and to their des- 
 
628 
 
 Chap. 127. 
 
 DEVOLUTION OF ESTATES. 
 
 Sec. 53. 
 
 cendauts, in the same manner as if all such brothers and sistera 
 had been the brothers' and sisters of the intestate. R. S. O. 
 1887, c. 108, s. 43. 
 
 Half blciod to 
 Hiiccptfd with 
 whole blood. 
 
 In caseH not 
 provided for, 
 22 23 Car. ii. 
 c. 10, and 29 
 Car. ii. c. 3, 
 to apply. 
 
 o4. Relatives of the half blood shall inherit equally with 
 those of the whole blood in the .same degree, and the descen- 
 dants of such relatives shall inherit in the same manner as the 
 descendants of the whole blood, unless the inheritance came to 
 the intestate by descent, devise or gift from some one of his 
 ancestors ; in which case all tliose who are not of the blood of 
 such ancestor shall be excluded from such inheritance. R. S. 0. 
 1887, c. 108, s. 44. 
 
 55. On failure of heirs under the preceding rules, the in- 
 heritance shall descend to the remaining next of kin of the 
 intestate, according to the rules in the English Str ^''te of Dis- 
 tribution of Personal Estate. R. S. 0. 1887. c. 108, s. 45. 
 
 ; : 
 
 OENEUAL PU0VISI0N8. 
 
 f kp'^'T.*" **^*" ^V'^^^i'*^ there is but one person entitled to inherit 
 
 in common, according to the provisions of section 37 and following 
 sections of this Act, he shall take and hold the inheritance 
 solely ; and where an inberitance, or a share of an inheri- 
 tance, descends to several persons under such provisions, they 
 shall take as tenants in common, in proportion tr- their respec- 
 tive rights. R. S. 0. 1887, c. 108, s. 4G. 
 
 ¥1 
 
 Descendants, 5!. Descendants and relatives of the intestate begotten be- 
 etc, born after f^j.^ jjjj^ death, but born thereafter, shall in all cases inherit in 
 tate.toinherit. the same manner as if they had been born in the lifetime of the 
 intestate and had .survived him. R. S. O. 1887, c. 108, s. 47. 
 
 Illegitimate 58. Children and relatives who are illegitimate .shall not be 
 I'""""" ""*'■" entitled to inherit under any of the provisions of this Act. 
 ' " R. S. O. 1887, c. 108, s. 48. 
 
 Cnrtesy, 
 dower and 
 estates by 
 deed or will, 
 not affected. 
 Rev. Stat. 
 c. 128. 
 
 51>. The estate of the husband as tenant by the curtesy, or 
 of a widow as tenant in dower, shall not be afrected by any of 
 the provisions of the last preceding twenty-two sections of this 
 Act, nor except as f)rovided by section 81 of The Wilts Act of 
 Ontario shall the same affect any limitation of any estate by 
 deed or will, or any ';state which, although held in fee simple 
 or for the life of another, is so held in trust for any other per- 
 son, but ail such estates shall remain, pass and descend, as if 
 the last twenty-two sections of this Act numbertd from 37 to 
 o8, both included had not been passed. R. S. O. 1887, c. 108, 
 s. 49. 
 
 C^ses of child- ^^Q If any child of an intestatehas been advanced by the 
 been advanced intestate by settlement, or portion of real or personal estate, or 
 
 by settlement, 
 etc. 
 
Sec. 65. 
 
 DEVOLUTION OF ESTATES. 
 
 Chap. 127. 
 
 both of them, and the same has been so expressed by the in- 
 testate in writing, or so acknowledged in writing by the child, 
 the value tliereof shall be reckoned, for the purposes of this 
 flection only, as part of the real and personal estate of such in- 
 testate descendible to his heirs, and to be distrib\itcd to his 
 next of kin according to law ; and if such advancement is 
 «qual or superior to the amount of the share which such child 
 would be entitled to receive of the real and personal estate of 
 the deceased, as above reckoned, then such child and his 
 descendants shall be excluded from any share in the real and 
 personal estate of the intestate. R. S. O. 1887, c. 108, s. 50. 
 
 629 
 
 not equal. 
 
 4»l. If such advancement is not ecjual to such share, such if such ad- 
 child and his descendants shall be entitled to receive so much ^"""^r"?.^','' ''* 
 only of the personal estate, and to inherit so much only of the 
 real e.state of the intestate, as is sutRcient to make all the 
 shares of the children in such real and ))orsonal estate and ad- 
 vancement to be equal, as nearly as can be estimated. R. S.O. 
 1887, c. 108, s. 51. 
 
 0*4. The value of any real or personal estate .so advanced Value of ino- 
 shall be deemed to be that, if any, which has been acknow- ceij'^,y*J,^^"l- 
 ledged by the child by any in.stiumetit ''n writing, otherwise mated. 
 such value shall be estimated according to the value of the 
 property when given. R. S. O. 1887, c. 108, ,s. 52. 
 
 6JJ. The maintaining or educating, or the giving of money Education, 
 to a child, without a view to a portion or settlement in life shall v'^'j,!.",",*^?" 
 not be deemed an advancement within the meaning of this Act. 
 R. S. O. 1887, c. 108, s. 53. 
 
 C4. The parties authorized to make partition of any such Aa to tlie 
 real estate according to law, shall receive froni any of the per- ij^^*"!-. 
 sons entitled to a share of such real estate, an offer or proposi- interested in 
 tion to purchase the share or shares of the other parties inter- feal estate 
 ested therein, giving the prefei'ence to the ])erson who would pivrtitiim'to 
 have been the heir-at-law thereto, had section 37 and the fol- pn'ciiase. 
 lowing sections of this Act not been passed ; and next after 
 such heir-at-law, giving such preference to the several persons 
 successively who would have been such heir-at-law, had the 
 said last mentioned .sections of this Act not been passed, and 
 had f '^ose persons preceding them respectively in the series of 
 such preference been dead at the time of the death of the in- 
 testate. R. S. O. 1887, c. 108, s. 54. 
 
 <»5. The parties so authorized to make such partition .shall Particulars of 
 certify particularly to the Court in which proceedings for a cifase'to'lJe'^ 
 pG.:tition are commenced or pending, thj particulars of such certified to th« 
 offer or proposition for purchase, the nature, quantity and value '^'""'■'• 
 ■of the estate or share proposed to be purchased, and whether 
 
c 
 
 r 
 
 I 
 
 r 
 
 mm 
 
 03 
 
 30 
 
 !• 
 
 ?»,: 
 
 680 
 
 Chap. 127. 
 
 DEVOLUTION OF ESTATES. 
 
 Sec. 6-i. 
 
 autnorizt'd to 
 niakepivrtition 
 may direct a 
 sale, giving 
 preference to 
 the he-r-at- 
 law, etc. 
 
 they advise such offer or proposition to l)e accepted or rcjectedp 
 and their reasons thei-efor. R. S. O. 1H87, c. 1"8, s. 55. 
 
 OO. Any Court authorized to make partition of real estate 
 may direct a sale of the same if it thinks it right so to do, 
 upon the applicaticm of any of the parties V)eneficially interested 
 therein, giving however the preference at all times to the per- 
 son who would have been the heir-at-law to such real estate 
 had section 37 and the following sections of this Act not been 
 passed, and after such heir-at-law, then giving such preference 
 to the several persons successively who would have been such 
 heir-at-law, had the said hist mentioned sections of this Act not 
 been passed, and had those persons preceding them respectively 
 in the .series of such preference been dead at the time of the 
 death of the intestate. R. S. O. 1887, c. 108, y. 56. 
 
 wh"h jlf ^^' Every such preference shall be upon and subject to such 
 
 ence to be terms, security and conditions, as the Court thinks it right to 
 given. direct. R. S. O. 1887, c. 108, s. 57. 
 
 ! : 
 
 *uf' 
 
 m 
 
c. 60. 
 cted^ 
 
 state 
 do, 
 ested 
 i per- 
 ;stato 
 
 been 
 rence 
 
 such 
 jt not 
 lively 
 f the 
 
 • sucH 
 
 dit to 
 
 DEVOLUTION OF ESTATES. 
 
 NOTES. 
 
 Assimilation of real and personal property. The UiiiIcik.v of iiindi'in Ic^isla- 
 tiim is to assiinilati' tlie ili'volutioii of real and ))i'rsoiial |)ro|)i'ity. In Knglanil 
 Iiy tlif Land 'riansfer Act 1H!)7 ((ill and (il \'icl. c-. (i.'i) soiiiowlial similar pro- 
 visions to tliosL- of ss. 4. !(, i:{ and Ki air enacted. 
 
 Intestate succession in Ontario, 'riicif aic four cpodis in tlic history of ical 
 estate succession in Ontario. 
 
 (1) Prior to 1st July. 1S34, the coninion law in Kngland rcj,'ulated tlie succes- 
 sion to real estate of <vliicl; a per.son died intestate. Descent was traced 
 from the i)er.soii last a<-tually seised and a seisin in law did not sullice to 
 I'onstitute a good idot of descent, a seisin in deed or its e(|uivalcnt, being 
 reipiisite ; Leith it Smith 47", and if the heir of a reversioner died (lend- 
 ing a life estate he woidd not have had such a .seisin as was necessary, ili. 
 471. I'rimo'-enitu'e was the lule, the eldest male heing preferred over the 
 y<mngei' and the ?nille line to the female line. Females sliared eiiually. 
 
 (■J) Between 1st .luly I.SH4 and 1st .Tamniary 1S.V2 piimogenitme was .still llie 
 lule. Descent was traced from the last pmclia.ser, i. e. the person who 
 last ae(iuired the land otherwise llian hy descent or than hy any partition 
 equivalent to descent ; s. 9,'2 (2). 
 
 {'.'1) Hetween l.st Januaiy LS.W and l.st .Inly 1S86 descent was tiaced from the 
 lierson last entitled ; Leith & Smith 47-. Primogeniture was aholi.shed, 
 all lineal descendants of e(|ual degree of coii.sanguinitv sharing equally, ss. 
 41, 42. 
 
 (4) Since 1st July 188(5 real estate has vested in the personal repre.sentative 
 to lie distributed in the same way as personal properly ; s. 4. 
 
 Kstate.* tail have not lieen affected liy any of the foreg<iing. 
 
 It is not considered necessary to ileal in detail with the law iirior to lH8ti. 
 
 •d almost entirely 
 1 4(>!t. A full 
 
 discussion <if the several se(^tions of the act will he found in Leith ife Smith jip. 
 4ti0-i)03. Land vested in a trustee devolved uiion his common law heir, s. 51). 
 The abolition of jirimogeniture did not aH'ei^t the construetion of a devise con- 
 tained in a will made before the act was |)as.sed whereliy lanil was devised to 
 heirs as purchasers; Tvlee v. l)eal(187;i) l!)(ir. (iOl ; Ualdwin v. Kingston 
 (18{M») IS A.R. ().1. see also Apiiendi.x IS A.R. 
 
 History oflegislation since 1888. Hetween 1st July ISS(i ,ind 4tli May ISitl, 
 land devolved notwithstanding any testamentary disposition upon the peisoiiid 
 representative, an<l title co\il(l not be made excejit bv a v'onvevancc from him ; 
 Martin v. Magee (ISitl ) IS A.K. MS4. On the 4th Slav 1SiH", the Statute .)4 
 Vict. c. IS, s. I (l)came in force anil tlieieliy vested the property in the 
 beneficiaries after the expiration of twelve month's from tlic testatoiV death, 
 unless a caution was previouslv registered. The act was held not to be 
 retrospective in He Ferguson (ISiM) 11 C.L.T. 201. In ISlCi further pro- 
 vision was made iis to cautions by allowing their registration, on comjilying 
 with the formalities now |iioviiled by s. 14, after the expiration of twelve 
 months, and liy providing that the vesting in liciietiiiaries was not to be 
 )iost]ioneil by reason of no pcrso'.al representative lieiiig a|ipointeil within 
 twelve months. The act was declared to ap)ily to (he estates of persons 
 dying before or after the act of 1 Sill. The question shortly thereafter arose 
 wlielhcr the ellcct of tlic act of lS!i;< was not to make the whole act of jSllj 
 retrospective. In He Haiid (ISlKi) HU.'.L.T. 277, lio.vd ( '. held (ha( the ellcct 
 thereof was not to make the iict of ISill rctros|icctive, but in a subsequent <ase 
 the same learned judge reconsidered his former decision and held that the|)ro- 
 visions of the ad of ISIIS were so cngraf(ed on the act of ISiH as to cast back 
 the operation of both ac(s so as to ap|ily (o all persons dying after .lulv 1st, 
 IKSfi : He .Mar(in (IS!».-,)2()0. K. 4().") ; Kodger v. .Moian (IHlMi) 2S O. K. 27 A. 
 In IS!I7 liy (id Vict. c. 14, s. 2i>. the retroactive words of the act of WXi were 
 re))ealed, but so that the repeal sliould not atl'ect any conveyance made before 
 l;<th Ajiril 1S1I7. 
 
 The enactments of lSS(i and since llial time ajiplv only (o inheritable lands ; 
 Cowiin V. Allen ( ISIMi) 2(( S.C. IL 2(12. 
 
 031 
 
 
 The statute governing descent aftei' Ist.Ianiuiry IS.Vi was copied all 
 from the reyi.sed act of the State of New York ; Leith it Smith 
 
632 
 
 DEVOLUTION OF ESTATES. 
 
 o 
 
 c 
 
 r 
 
 % 
 
 i 
 
 09 
 
 Dower. Tlie widow, to cntiJo her to a diHtriliutive sliai'f, must elect to taki 
 it by an attested inslnimcnt ; Re (!al way (189")) 17 P. R. 49. A widow may 
 elect to take her interest under the aet in lieu of her dower after the <'xpirii- 
 tion of a year from tlie death of her hushand i)r( vided the estate is not distri- 
 buted on the footing of her having retained her lower right ; Hakei- v. Stuart 
 (No. 2), (1H9S)-29 0.R. .'W8. Where the widow by marriage settlement lias 
 aeeepted an e(iuivalent in lieu of her dower, she has no riglit to any share in 
 the lands ; Toronto (ieneral Trusts Co. v. tiuin (1S94) 2'> O.R. 'i-W. The pro 
 visions allowing a gross sum to be set apart for the widow arc in confirmation 
 of Re Rose (IWMi) 1" I'.R. VM\. 
 
 Children of deceased brother or sister. AVIiere the deceased leaves a father, 
 brotlier and sister and de.scenilanls of deceased brothers and sisters, the latter 
 are entitled,to a distributive share, in the estate, /.ei-.ttirfex ; Walker v. Aller 
 (1897) iM A.R. 3:i6. 
 
 Consent of official guardian. The cun.sent of the Utficial (iuardian is rei|uired 
 only where the land would not, but for the act, devolve upon the e.vecutors or 
 administrators. If tlie testatoi' has devised the lanil t.) liis e.xecutois upon 
 trust, even for an infant, tlie consent of the Otiicial (iuardian is not re(|uired ; 
 Re Booth's Kstate (l«^^^') Hi O.R. 429 ; Kodi v. Wideman (1894) 2.") O.R. 262 ; 
 Re Hewett v. .Ier',iyn (1898) 29 O.H. UK] : Meicer v. Netl (1898) 29 O.R. (i80. 
 
 In Re Fletcher (189")) 2() O.R. 499, it was said that the consent of the Official 
 <jiuirdian was rei|uired only wlien the .sale was ma<ie for distribution simply 
 and then only wlien tlierc were infants, lunatics or non-c(jncurri'ig lieirs. Sec- 
 tions 8 and 10 must now, after tile revision be read together, and it wouhl 
 ap]iear to be safer to get the consent in all cases where infants or lunatics arc 
 ill t crest eil. 
 
 as administrator of his wife 
 wlii(th tliev were tenants in 
 
 Wilson and Toronto Incandescent 
 
 Powers of Personal Representatives. A husliand 
 may .sell his wife's undivided interest in land of 
 <iimnioii though there are no debts ; Re 
 Klectric Liglit Co. (1891) 20 O.R. .197. 
 
 A personal representative deriving title under the Act cannot exchange 
 lands of the deceased foi- others, Tenute v. Walsh (1893) 24 O.R. .S09 ; but may 
 mortgage tlicni witli the consent of the Otticial (Iuardian if infants are inter- 
 ested ; Re Bennington (1898) 18 C.L.T. 289. 
 
 A personal representative can make a valid renewal of a lease pursuant to 
 the covenant of the deceased to renew ; Kc Canadian Racitic Rv. Co. and 
 National (Tul) ( 189:i) 24 O. H. 2(W. 
 
 Though the ])ersonal representative has tlic power to .sell lanils where there 
 are no (lebts lie niav be restrained if he attcni|)ts to sell contrar\ to the wishes 
 of the beneficiaries ; Re Mallindine (I8!((l) 10 C.L.T. 22(i. 
 
 I'ersonal representatives .ire not, like trustees for sale, bound to sell, but a 
 mere discretion is cast upon tlieiu : He Fletcher's Kstatc (180")) 2() O.R. 499. 
 
 The personal representatives may impound the share of any beneficiary for 
 a debt due by him to the estate, and, in the event of his insolvenej- or death, 
 will be compelled to value his share in proving against his estate; Tillie v. 
 Springer (1892) 21 O.R. Mr,. 
 
 Mortgages. The Act does not atlect tlit rule laid down by Locke King's Act 
 (R. S. O. c. 128, s. 37) by which devisees of land taki^ the same subject to the 
 enciimbraiiees thereon ; ilasoii v. .Mason (i '87) 13 O.K. 72.">; unless tlie general 
 estate is cliarge<l with tlic |)avment of all encumbrances: Scott v. Supple (1893) 
 23 O.R. 393. 
 
 Cautions. A caution may be filed (obsii\ ing the preliminaries of s. 14) 
 although no personal representative is apiiointed within 12 months from the 
 death : Re Martin (189")) 2(5 O.R. 4«"). 
 
 Upon the exiiiration of a caution the lanils l)ecome the property of the 
 beneficiaries witli<ait a conveyance ; Ramus v. Dow (1893) l."i r. R. 219. 
 
 A conveyance by the heirs or devisees within the 12 months will t.ike ott'ect, 
 if no caution is registered, immediately ujioii the e.vpiratioii of 12 months, and 
 a caution s.dpscipientlv registered will not defeat the title of the grantee for 
 value; Re McMillan, ■McMillan v. McMillan (1893) 24 O.H. 181. 
 
 Widow's Share. Whcii' there are no children the widow is entitled to $1,000 
 uxrr her distributivt^ share althiaigli she may have receivcil other benefits 
 uiidei' the laws of auotlier country out of the ileceused's estate in that couiitrj", 
 Sinclair v. Hrown (1898) 2» O.R. 370. 
 
DEVOLUTION OF ESTATES. 
 
 633 
 
 Wiff 
 
 111 rliilil 1)1- {'hililreii . 
 
 Wife iiiilv 
 
 , ,, I f All to tlio iii'xt of kin and to their legftl lepro- 
 
 '■""' I sentiitivi's. 
 
 Foreclosure. In a foreolo.siire action tlic liuii's of a (leceased mortgagor are 
 proiR-r parties as well as his personal representative ; Keen v. (Jodd (18!)l) 14 
 J'.H. 1H2; see Carter v. Clark.son (ISiW) 1,") I'.H. 37i». If no a<linini8trator is 
 a|i|)ointe<l or caution registered the personal representative is not a necessary 
 party to an action commenced after 12 months from the death; Ramus v. Dow 
 <IS!»3) loP.R. 'ilit. 
 
 Infant's Shares. It is competent for tiic Othcial (iuardian in giving hi.s con- 
 .sent to a .sale to see that infants' sliarcs are protected or secin'c<l and applica- 
 tion may lie made to the court and projier directions tlicn ohtained; Re Reddan 
 (ISHti) 1-iO.R. 781. 
 
 Tlie following talile may he refcn'c<l to as shewing the distrilnitive shares of 
 hcncticiaries upon an intestacy since 188(j : — 
 
 //■ till' liifi-ritati' fill' li'firinii : Bi'iifjickti'lfn tnk-r tliiiA : 
 
 I'Oni'third to wife, ie»t to child or children ; if 
 
 children dead, then to their representatives 
 I (that is, their lineal descendants), except such 
 •[ child or children (not heirs at-lii\v| who hud 
 
 estate by settlement of intestjite or were ad- 
 
 vaiice<l iiy him in his life-time ei|ual to the 
 ' other shares. 
 
 /■•i'l.iK'O to wife : halt nf residue to wife : rest In 
 I next of liin, in eiptal de^jree to intestate, or 
 j their le^'al representatives, or if no next of 
 
 kin. to tlie frown. 
 
 No wife or < 
 
 Child, ehililren, or their representatives \U to him, her or them. 
 
 I'liildren liy two wives Kijually to all. 
 
 If no child, chililren or representatives .\ll to next of kin, in ei|ual decree to intestate. 
 
 I'hil.l or K'randch.1.1 hy de.-ea..ed .-hild , . . j """j.l.'J.^^/t'^'t'ii';;" '" »-''•»•"''•'"''''• "'"' *»■**« ''J' 
 
 11,1 I nil I ii ' """ '" '■'"' '""' '"'" '"* '' '"^ '""' prwieceused 
 
 "'"""""•* i intestate. 
 
 Iliisliand and child or I'hiUlren Thinl to Inishanil and two-thinls to cliildren. 
 
 Father and mother Kinially to hoth. 
 
 (Equally to all ; children of any decease<l hrother 
 Father, mother, brother or sister ■[ or sister take share of deceased parent per 
 
 \ Kllriieii. 
 
 Mother and brother or sister Whole to them equally. 
 
 «;t, ...„.!,,. I ..».k„. „t„t»- .,„.,i,„,..„ „..,! r'lal' to wi'e, residue to mother, brothers, sis- 
 Wife, mother, brother, sister, nephews and ^^^^ ^„,, ^jj.^^.^^ ,„,j nephews and nieces take 
 
 """'^^ \ per Klirjirx. 
 
 Wife and father Half to wife ; half lo father. 
 
 ,1,., ,, , .1.1 ( Two-fourths to wife, one-fourth to mother, and 
 
 Wife, motlier, nephews and nelces \ ..nefourtli to nephews aii.l nieces. 
 
 ,,,., u .1 • . 1 .u ( Half to wife (under stiit. of Car. II.) Half to 
 
 Wife, brother or sister and mother { ^,,„^^,^,^ J,i „i,,,,,., ,^,„, ...^^her eiplally. 
 
 Jlolher only The whole. 
 
 Wife and mother Half to wife and linlf to mother. 
 
 Hiother or sister of whole hloo<l, and brother \ ^, „, ^„ ,,„j,, 
 
 and sister of half blood ../ ' 
 
 rosthumous brother or sister, and mother , . . .Kiiuallv to both. 
 I'osthunious brother or sister and brother or I g „,. j,, ,,„tb. 
 
 sister born in life-time of father I ' 
 
 Father's fumer and niother's mother Kcjually to both. 
 
 i'licleor aunt's children, and brother's or sis- I p,,im])y („ ,,|i 
 
 ter's i.'1'andchildren / ' ' 
 
 <irandniother, uncle or aniit .Ml lo ■,'iaiidniother. 
 
 Two aunts, nephew and niece Kipially lo all. 
 
 I'nde and deceased uncle's child .All lo uncle. 
 
 I'ncle bv a mother's side, and deceasctl uiida ^ ,,, ,„ ,,,„,i,. 
 
 or aunt s child ( 
 
 Nephew by brother and nephew by half sister. K(|allv, prr '•ii/iild. 
 
 ,,.,'.. J u • ( Knuallv (bul the nephews or nieces take per 
 
 Brothers or sisters, and nephews or nieces. . . xtiriien) 
 
 Nephew hy deceased brother, and "cphews u,^ ^,,^|, „,,. ,. ,^ 
 
 and meees by deceasefl sister I ' • ' 
 
 Brother and Kiandfather .\11 lo broiher. 
 
 liiolher's ;;raiidson and brother or "'»'*'''' I All to dauirhler 
 
 dauKhter ( ' 
 
 Drother and two aunts All lo brother. 
 
 Brother and wife Half to brother and half to wife. 
 
 .Mother and brother K(|iially. 
 
 ,,.., , ., , ■ ..J ,j , ("Half to wife, oiiefourth lo mother, one-fourth 
 
 Wife and mother, and children of decease.!] ,. .,,.,,, j,, .i^cpased brother or sister's 
 
 brother or sister ^ children! 
 
 „... , . ,. 1 i.111 , /'Half to wife, one-fourth to hrother or sister j«"r 
 
 Wi e, brother or sister, and children of! ■,„ one-fourth to <Iecea8c<l brother or 
 
 deceased brother or sister ) ^^^^„.^ ^^^^^^^ j„,. ^i^j,,,, 
 
 _ ^, . ^ , .,,, , J .^Hiilf to brother or sister per capita. Half to 
 
 Brother or sister and children of a deceased I ,.,,i,dfe„ „, deceased brother or sister per 
 
 brother or sister I gtirpeH. 
 
 «r«ndt«ther and brother All to hrother. 
 
s 
 
 ? 
 
 i 
 
 2 
 
 I 
 
 CHAPTER 128. 
 
 An Act respecting Wills. 
 
 Short title, s. 1. 
 
 Wills before 1st January, 1874, 
 
 88. 2-6. 
 Wills after 1st January, 1874 : 
 Preliminary, bs. 7-9. 
 Property dispo.sable by will, and 
 
 PER.SONS who may DISPOSE BY 
 WILL, 88. 10, 11. 
 
 Execution of wills, bs. 12-15. 
 WIUb of Boldiers and sailors, a. 14. 
 Witnesses being interested under 
 the will not to invalidate, ss. 
 10-19. 
 Revocation of wills, ss. 20-22. 
 Obliteration.s, interlineations, 
 
 ETC., s. 23. 
 Revival, s. 24. 
 Construction of wills ; 
 Devise, etc., to operate upon any 
 interest remaining in testator, 
 B. 25. 
 
 I Operation of wills from time of 
 
 ' death of testator, s. 2C. 
 
 I Lapsed devise to sink into resi- 
 
 I duary devise, s. 27. 
 
 j General devise what to include,. 
 
 ss. 28-30. 
 ! Meaning of "heir" in a deviser 
 I 8. 31. 
 
 "Die without issue," meaning of, 
 
 8. 32. 
 General devise to trustees, what 
 
 estate to pass, ss. 33, 34. 
 Cases wh^e devise does not 
 lapse by death of a devisee, ss. 
 35, 36. 
 Mortgage debts and charges pri- 
 marily chargeable on land,. 
 88. 37, 38. 
 Imperial Acts repealed, s. 39. 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 Short title. 
 
 Interpreta- 
 tion. 
 "Land." 
 
 1. This Act may be cited as "Tha Wills Act of Ontario." 
 E. S. 0. 1887, c. 109, s. 1. 
 
 WILLS HEFOKK IST JANUAUY, 1874. 
 
 *i. In the next succeeding three sections of this Act the 
 word "land" shall extend to messuages, and all other 
 hereditaments, whether corporeal or incorporeal, and to 
 money to be laid out in the j)urchase of land, and to 
 chattels and other personal property transmissible to heirs, 
 and also to any share of the same hereditaments and properties, 
 
 [ 634 ] 
 
Chap. 128. WILLS. Sec.2. 635 
 
 or any of tlioni, and to any estate of inheritance, or estate for 
 any life oi' lives, or either estate tran.sniissiblc to lieiis.and to any 
 possibility,right or title of entry or action, and any otlier interest 
 caj)able of being inherited, and whether the same estates, possi- 
 bilities, rights, titles and interests, or any of them, are in 
 possession, reversion, remainder or contingency. R. S. O. 
 1N87, c. 10!>, s. 2. 
 
 11. Where a will made before and not re-executed, republished Estates ac- 
 or revived after the first day of Janiiaiy, 1874, by any person [^""lulklnK^of 
 dying after the sixth day of March, 1884, contains a devise in a will may 
 any form of words of all such real estate as the testator dies i>»«»bvthe 
 
 *' will wlicr6 
 
 seised or possessed of, or of any part or jnoportion thereof, such intention 
 such will shall be valid and effectual to pass any land acquired is expressed, 
 by the devisor after the making of such will, in the same man- 
 ner as if the title thereto had been acijuired before the 
 making thereof. R. S. O. 1887, c. 109, s. 3. 
 
 4. Where land is devised in cy such will as aforesaid, it 
 shall be considered that the devisor intended to devise all 
 such estate as he was seised of in the same land, whether in 
 fee .simple or otherwise, unless it appears ujion the face of such 
 will that he intended to devise only an estate for life, or other 
 estate less than he was seised of at the time of making 
 the will containing such devise. R. S. O. 1887, c. 109, s. 4. 
 
 5. Any will affecting land executed after the sixth day of 
 March, 1834, and before the first day of January, 1874, in the 
 presence of and attested by two or more witnesses, shall have 
 the same validity and effect as if executed in the presence of 
 and attested by three witnesses ; and it shall be sufficient if 
 the witnesses subscribed their names in presence of each other, 
 although their names were not subscribed in presence of the 
 testator. R. S. 0. 1887, c. 109, s. 5. 
 
 m. After the fourth day of May, 1859, and before the first 
 day of January, 1874, every married woman might, by devise 
 or bequest executed in the presence of two or more witnesses, 
 neither of whom was her husband, make any devise or bequest 
 of her separate property, real or personal, or of any rights there- 
 in, whether such property was ac([uired before or after mar- 
 riage, to or among her child or children issue of any marriage, 
 and failing there being any issue, then to her husband, or as 
 she might see fit, in the same manner as if she were sole and 
 unmarried. R. S. O. 1887, c. 109, s. 6. 
 
 A devise of 
 land shall be 
 taken to carry 
 as large an 
 estate as the 
 testator hadia 
 the land, 
 unless a con- 
 trary intention 
 is expressed. 
 
 Witnesses 
 need not sub- 
 scribe in the 
 jiresence of the 
 testator. 
 
 Will by mar- 
 ried woman 
 between 4th 
 May, 1859, 
 and ist Janu- 
 ary, 1874. 
 
 WILLS AFTER IST JANUARY, 1874. 
 T. Unless herein otherwise cxpi-essly provided, the subse- Operation «f 
 quent sections of this Act shall not extend to any will made sections'"'^ 
 before the first day of .January, 1874; but every will re- 
 executed or re-published, or revived by any codicil, shall, for 
 the purposes of the said sections, be deemed to have been made 
 
636 
 
 Sec. 10. 
 
 WILLS. 
 
 Chap. 128. 
 
 l«op. Act 1 V. at the time at wliich the same was so re-executed, re-published 
 
 0. 86, 8. 34. 
 
 or revived. R. S. 0. 1887, c. 109, s. 7. 
 
 Applicationof g Sections 21, 22, 25 and 26 of this Act shall not apply 
 
 25 and 26.'" ' to the will of auy person who was dead before the first day 
 
 of January, 1869, but shall apply to the will of every person 
 
 who has died since the thirty-tirst day of December, i8o8, or 
 
 who dies after the passing of this Act. R. S. O. 1887, c. 109 s. 8. 
 
 c 
 
 if 
 
 i 
 
 09 
 
 73 
 
 12 Car 
 
 c. 24. 
 
 Interpreta- 9 jn t^g construction of the sections numbered 10 to 39 
 
 turn. Imp.Act ... • .1 • . ^ 
 1 V. c. 2b, 8. 1. inclusive in this Act, 
 
 "Will." 1. " Will " shall extend to a testament, and to a codicil, and 
 
 to an appointment bj"will, or by writing in the nature of a 
 will in exercise of a power, and also to a disposition by wil! 
 and testament, 01 devi.se of the custody and tuition of any 
 child, by virtue of the Act passed in the twelfth year of the 
 reign of King Charles the Second, entitled, " An Act for taking 
 away the Court of Wards, and liveries and tenures in oapite, 
 and by knight's service and purveyance, and for settling a 
 revenue wpon His Majesty in liett thereof," and to any other 
 testamentary disposition ; 
 
 "Real estate." 2. " Real estate " shall extend to messuages, lands, rents, and 
 hereditaments, whether freehold or of any other tenure, and 
 whether corporeal, inoorporeal or personal, and to any undivided 
 share thereof, and to any estate right, or intei'est (othor than 
 a chattel interest) therein ; 
 
 3. " Personal estate " shall extend to leasehold estates and 
 other chattels real, and also to moneys, shares of government 
 and other funds, securities for money (not being real estates), 
 debts, choses in action, rights, credits, goods, and all other 
 property whatsoever which by law devolves upon the executor 
 or administrator, and to any share ot interest therein. 
 
 "JMortgasre." 4. " Mortgage " shall include any lien for unpaid purchase 
 Imp. Act 30- money, and any charge, incumbrance, or obligation of any 
 ,9 "• ^^' nature whatever upon any lands or tenements of a testator or 
 intestate. R. S. O. 1887, c 109, s. 9. 
 
 ' ' Personal 
 estate." 
 
 B.2. 
 
 " Person." 
 
 "Testator." 
 
 Power to dis- 
 pose of all 
 property. 
 Imp. Act 1 V. 
 c. 26, s. .•?. 
 
 Estates 
 pur autre vie. 
 
 Contingent 
 interests. 
 
 5. " Person " and " Testator " shall include a married woman. 
 60 V, c. 3, 8. 3. See R. S. O. 1877, c. 106, s. 9 (4) ; R. S. O. 1887, 
 c. 132, s. 3 (1) 
 
 10. Every person may devise, bequeath, or dispose of by will 
 executed in manner hereinafter mentioned, all real estate and 
 personal estate to which he may be entitled, at the time 
 of his death, and which, if not so devised, bequeathed, or 
 disposed of, would devolve upon his heir at law, or upon his 
 executor or administrator; and the power hereby given 
 shall extend to estates pur autre vie, whether there be or 
 be not any special occupant thereof, and whether the .same 
 be corporeal or incorporeal hereditaments ; and also to all con- 
 tingent, executory, or other future interests in any real or per- 
 sonal estate, whether the testator be or be not ascertained as 
 
Chap. 128. 
 
 WILLS. 
 
 Sec. 10. 
 
 687 
 
 the person or one of the pereons in whom the same may respec- 
 tively become vested, and whether he be entitled thereto under Rj^jitg ^f 
 the in.stiiiment by which the same were respectively created entry. 
 or under any disposition thereof by deed or will, and also to all 
 rights of entry for conditions broken and other rights of entry, 
 and al.so to such of the same estates, interests and rights re- Pr.ii*rty,ic- 
 spectively, and other real and personal estate, as the testator X\'v!n"^'"^ 
 may be entitled to at the time of his death, notwithstanding 
 that he may become entitled to the same subsequentlj'^ to the 
 execution of his will. R. S. O. 1887, c. 109, s. 10. 
 
 1 1. No will made liy any person under the age of twenty- whIh by in- 
 one years shall be valid. R. S. 0. 1887, c. 1 09, s. 1 1 . ^i*";,',^ 'J^;:^ i y. 
 
 c. 26, 8. 7. 
 
 I'i. — (1) No will shall be valid unless it is in writing, and Execution, 
 executed in manner hereinafter mentioned ; that is to say, it I'np- ■^<=* ^ ^• 
 shall bo signed at the foot or end thereof by the testator, or by ' ' " ' 
 some other person in his presence, and by his direction ; and such 
 signature .shall be made or acknowledged by the testator, in the 
 presence of two or more witnesses present at the same time, and 
 such witnesses, shall attest and shall subscribe the will in the 
 presence of the testator ; but no form of attestation shall be Attestation, 
 necessary. 
 
 (2) Every will, so far only as regards the position of the Signature. 
 
 ■ " ■" " " Imj). Act 15- 
 
 16 V. c. 24,8.1. 
 
 signature of 
 
 the testator, or of the person signing for him 
 
 as 
 aforesaid, shall be deemed to be valid, within the meaning of 
 this Act, if the signature is so placed, at, or after, or following, 
 or under, or beside, or of)posite to the end of the will, that it is 
 apparent on the face of the will that the testatorintendod to give 
 effect by such signature to the writing signed as his will ; and no 
 such will shall be afl'ected by the circumstance that the signature 
 does not follow or is not immediately after the foot or end of the 
 will, or by the circumstance that a blank space intervenes be- 
 tween the concluding word of the will and the signature, or by 
 the circumstance that the signature is placed among the words 
 of the testi mo ) iium cl&uae, ov of the clause of attestation, or fol- 
 lows or is after or under the clause of attestation either with 
 or without a blank space intervening, or follows, or is after, 
 or under, or beside the names or one of the names of the sub- 
 scribing witnesses, or by the circumstance that the signature 
 is on a side, or page, or other portion of the paper or papers 
 containing the will, whereon no clause or paragraph or dis- 
 posing part of the will is written above the signature, or 
 by the circumstance that there appears to be sufficient space 
 on or at the bottom of the preceding side or page or other 
 portion of the same paper on which the will is written to con- 
 tain the signature ; and the enumeration of the above circum- 
 stances .shall not restrict the generality of the above enactment ; 
 but no signature under this Act shall je operative to five 
 effect to any disposition or direction which is underneath, or 
 
 
638 
 
 Sec. 18. 
 
 WILLS. 
 
 Chap. 128. 
 
 which follow.s it, nor sliall it give effect to any ili.spo.sition or 
 <iirection iaserted after the signature wa.s niatle. R. S. O. 
 1887. c. 109. s. 12. 
 
 Q 
 
 C 
 
 r 
 if 
 
 z 
 
 s 
 
 ApiHiiiitiiicnts |:t. No appointment niade by will, in exercise of any power, 
 bt^ exercised '' ''*'"^" ^^ Valid, uuloss the same is executed in manner herein- 
 Iinp. Act 1 V. before reciuired ; and every will executed in manner herein- 
 c. 26, .". 10. liefore retiuiretl, shall, so far a.s respects the execution and at- 
 testation thereof, be a valid execution of a power of appointment 
 by will, notwithstanding it has been expressl}- required that 
 a will made in exercise of such power shall be e.xecuted with 
 some ailditional or other form of execution or solemnity. 
 R. S. O. IfSST, c. lOit. s. 13. 
 
 Wills of 14. Any soldier being in actual military service, or any 
 
 iwHonaltv of iiiariner or seaman being at sea, may dispose of his personal 
 Mailors. estate as he might have done before the passing of this Act. 
 
 Imp. Act 1 V. R s. O. 1887, c. 109, s. 14. 
 
 c. 26, H. 11. 
 
 Ii». Every will executed in manner hereinbefore required 
 
 Publication 
 
 inijr'^Act'i^V shall be valid without any other publication thereof. K. S. O. 
 c. 26,8. 13. 1887, c. 109, s. l.'i. 
 
 Will not 1^»- If any person who attests the execution of a will is, at 
 
 invalid if the time of the execution thereof, or becomes .at any time 
 incompetent, afterwards, incompetent to be admitted a witness to prove the 
 Imp. Act 1 V. execution thereof, such will shall not on that account be invalid. 
 
 c. 26, 8. 14. 
 
 Gifts, etc., to 
 witness 
 invalid. 
 Inup. Act IV 
 c. 26, 8. 15, 
 
 R. S. O. 1887. c. 109. .s. 10. 
 
 IT. If any person attests the execution of any will, to 
 whom, or to whose wife or husband, any beneficial devise.legacy, 
 estate, interest, gift, or appointment of or affecting any real or 
 personal estate (other than and except charges and directions 
 for the payment of any debt or debts) is thereby given or 
 made, such devise, legacy, estate, interest, gift, or appointment 
 shall, so far only as concerns such person attesting the execu- 
 tion of such will, or the wife or husband of such person, or 
 any person claiming under such person or such wife or husband, 
 be utterly null and void, and such person so attesting shall be 
 admitted as a witness to prove the execution of such wdll, or to 
 prove the validity or invalidity thereof, notwithstanding such 
 devise, legacy, estate, interest, gift, or appointment mentioned 
 in such will. R. S. 0. 1887. c 109. .s. 17. 
 
 Oraditors 18. In case by any will any real or personal estate is 
 
 competent char$red with any debt or debts, and any creditor, or the wife 
 
 Imp. Act 1 V. or husband of any creditor whose debt is so charged attests 
 
 c. 26, 8. 16. the execution of such will, such creditor, notwithstanding 
 
 such charge, shall be admitted a witness to prove the execution 
 
 of such will, or to prove the validity or invalidity thereof. 
 
 R. S. O. 1S87. c. 109, s. 18. 
 
Chap. 128. 
 
 WILLS. 
 
 Sec. 19. 
 
 630 
 
 l!>. No person .shall, on account of his being an executor of Kxctutor 
 a, will, be incompetent to be a«lnutted a witness to prove the °v'un|I^'*"' 
 execution of such will, or a witness to prove the validity or in- imp. Act l V. 
 
 idity thereof. R. S. 0. 1887, c. 10!), s. 19. ''■'^•< "• ^7- 
 
 va 
 
 *40. — (1) Every will made by any person dying on or after R«v<K:ati<>n i>v 
 tlif! 13th day of April, 1897, shall bo revoked by the marriage il^"^'^^^i i y 
 of the testator, except in the following cases, namely : — c. as, ». 18. 
 
 (a) Where it is declared in the will that the same is made Kxcoptioni. 
 in contemplation of such marriage ; 
 
 (h) Where the wife or husband of the testator elects to 
 take under the will, by an instrument in writing 
 signed by the wife or husband and filed within one 
 year after the testator's death in the ottice of the 
 surrogate clerk at Toronto ; 
 
 (c) Where the will is made in the exercise of a power of 
 
 appointment and the real or personal estate thereby 
 
 appointed would not, in default of such appoint- 
 
 I ment, pa.ss to the testator's heir, executor or 
 
 administrator, or the person entitled as the testa- 22^28 ChM.ir. 
 tor's next of kin under The Statute of Diairibu- 0. 10, 29 Chw. 
 Hon. 60 V. c. 20, si. " " " 
 
 II. c. 3. 
 
 (2) The will of any testator who died between the 31st day 
 December, 1868, and the 13th day of April, 1897, shall be held 
 to have been revoked by his subsequent marriage, unless such 
 will was made under the circumstances set forth in clause (c). 
 E. S. 0. 1887. c. 109, s. 20. 
 
 *il. No will shall be revoked by any presumption of an in- ^" revocation 
 tention, on the ground of an alteration in circumstances. circum»tance«. 
 R. S. O. 1887, c. 109, s. 21. aVcc section 8 of this Act. I'"P- '^c' 1 V. 
 
 •' c. 26, n. 19. 
 
 'iH. No will or codicil or any part thereof, shall be revoked How only will 
 otherwise than as aforesaid, or by another will or codicil exe- ''*^^ ^^' 
 cnted in manner hereinbefore required, or by some writing de- imp. Act 1 v. 
 blaring an intention to revoke the same, and executed in the ^- 2''' *• 20. 
 manner in which a will is hereinbefore required to be executed, 
 or by the burning, tearing, or otherwise destroying the same, by 
 the testator, or by some person in his presence and by his direc- 
 tion, with the intention of revoking the same. R. S. O. 1887, 
 c. 109, s. 22. See section 8 of this Act. 
 
 'Hi. No obliteration, interlineation or other alteration made Obliterations, 
 in any will after the execution thereof, shall be valid or have ["'^g 'g^' 
 any effect, except so far as the words or effect of the will before Imp. Act 1 v. 
 such alteration are not apparent, unless such alteration io exe- "' '^^' *• ^'" 
 -cuted in like manner as hereinbefore is required for the execu- 
 tion of the will ; but the will, with such alteration as part , 
 thereof, shall be deemed to be duly executed, if the signature 
 of the testator and the subscription of the witnesses are made 
 
{■,iO 
 
 Sec. 28. 
 
 WILLS. 
 
 Chap. 128. 
 
 c 
 
 2: 
 
 
 in the margin or in .some other part of the will oppo.site or near 
 to sucli alteration, or at tlu' foot or end of, or ujipo.site to, a 
 memorandum referriiiif to .such alteration, and written at the 
 end or in some other part of the will. R. S. 0. 1887, c. 109, h. 23. 
 
 RevivaL *i4. No will or codicil, or any part thereof, which ha.s been in 
 
 '"t),'; ^"^^2^ ^- any manner revoke<l, .shall be revived otherwise than by the re- 
 execution thereof, or by a codicil executed in manner herein- 
 before reciuired, and shewinj,' an intention to revive the .same ; 
 and where any will or codicil which has been partly revoked, 
 and afterwards wholly revoked, is revived, such revival .shall 
 not extend to so much thereof as was revoked before the revo- 
 cation of the whole thereof, unless an intention to the contrary 
 is shewn. R. S. 0. 1887, c. 101). s. 24. 
 
 No act a8 to 
 property 
 named m the 
 will to pre- 
 vent operation 
 of the will an 
 to any interent 
 leftin testator. 
 Imp. Act IV. 
 c. 2«, H. 2:1. 
 
 *i!i. No conveyance or other act made or done subsecjuently 
 to the execution of a will, of or relating to any real or pei'simal 
 estate therein comprised, except an act by wliich such will 
 is revoked as aforesaid, shall prevent the operation of the will 
 with respect to such estate, or interest in such real or personal 
 estate, as the testator had power to dispose of by will at the 
 time of his death. R. S. U. 1887, c. 101), s. 25. See sect W7i 8 0/ 
 this Ad. 
 
 Z 
 
 r 
 B 
 
 JO 
 
 5 
 
 Will to speak 'Hi. — (1) Every will siiall be construed, with reference to the 
 T^.1'.? ''v'^f I'v I'eal and personal estate comprised in it, to .speak and take 
 c. 2G, B. 24. effect as if it had been executed immediately betore the death 
 
 of the testator, unless a contrary intention appears by the will. 
 
 R. S. O. 1887, c. 109. s. 26. 
 
 Imp. Act (2) This section shall apply to the will of a married woman 
 
 66-67 V. c. G8, m^tig during coverture, whether .she is or is not possessed of or 
 entitled to any separate property at the time of making it, 
 and such will shall not reijuire to be re-executed or re-published 
 after the death of her husband. 60 V. c. 22, s. 2. See section 
 8 of this Act. 
 
 Lapsed devise 
 to sink into 
 residuary de- 
 vise. 
 
 5J1. Unless a contrary intention appears by the will, such 
 real estate or interest therein as is comprised or intended to be 
 comprised in any devise, in snch will contained, which fails or 
 c."26, s.'25. becomes void by reason of the death of the devisee in the 
 lifetime of the testator, or by reason of such devise being con- 
 trary to law, or otherwise incapable of taking effect, shall be 
 included in the residuary devise (if any) contained in such 
 will. R. S. O. 1887. c. lO'J, s. 27. 
 
 LeMeholds, "jjij, A devise of the land of the testator, or of the land of the 
 
 paBsViTdera testator in any place or in the occupation of any person men- 
 general devise, tioned in his will, or otherwise described in a genera! manner 
 c!"2C, s.'^ie. and any other general devise which would describe a leasehold 
 estate, if the testator had no freehold estate which could be 
 de.scribed by it. shall be construed to include his leasehold 
 estates, or any of them to which such description will extend 
 
128. 
 
 A geiii'iiil de- 
 vise of ri'alty 
 or (KTHoiialty 
 tu incliKlf 
 proiHTty 
 (iv«r wliicli 
 testator Iiuh 
 a general 
 power of iip- 
 
 Iiointnieut. 
 mp. Act 1 V. 
 0. 2(i, H. 27. 
 
 Chap. 128. WILLS. Sec. 2«. ii41 
 
 (as the case may be), as well as freehold estates, unless a con- 
 trary intention appears by the will. R. S. O. 1887, c. 10S>, s. 2H. 
 
 *i9. A general devise of the real estate of the testator, or of 
 the real tjstate of the testator in any place or in the occupation 
 of any person mentioned in his will, or otherwise described in 
 a general numner, .shall be construed to include any real estate, 
 or any real estate to which such description will extend (as 
 the ca.se may be), which he may have power to appoint in any 
 manner he may think proper, and .shall operate as an execution 
 of such power, unless a contrary intention appears by the will ; 
 and in like manner a be(|uest of the personal estate of the 
 testator, or any becpiest of personal (!state described in a gen- 
 eral manner, shall be construed to include any personal estate, 
 or any personal estate to which such description will extend 
 (as the case may be), which he may have power to appoint in 
 any manner he may think ])roper, and shall operate as an exe- 
 cution of such power, unless a contrary intention appears by 
 the will. R. S. O. 1887, c. 109, s. 29. 
 
 JIO. Where any real estate is devised to any person without Qen«'f»'^'eviiM» 
 any words of limitation, such devi.se shall, subject to T/«e ^^fi'o- e8toU"*inVl"e'^ 
 lut'ion (if EMdtes Act, be construed to pass the fee sini]ile, or 1«"<1 deviae(L 
 other the whole estate or interest, which the testator had g' jy^'s!^2K. 
 power to di.spo.se of by will, unless a contrary intention appears Hev Stat 
 by the will. R. S. O. 1887, c. 109, s. 80. o. 127. 
 
 III. Where any real estate is devised by any testator, dying Meaning of 
 on or after the 5th day of March, 1880, to the heir or heirs of (i^viHe of real 
 such testator, or of any other person, and no contrary or other estate. 
 intention is signified by the will, the words " heir " and " heirs " 
 shall be construed to mean the person or persons to whom such 
 real estate would descend under the law of Ontario in case of 
 an intestacy. R. S. O. 1887, c. 109, s. 81. 
 
 IVi. In any devise or bequest of real or personal estate, the im|.ort of 
 words "die without issue," or "die without leaving i.s.sue," or "■'."j'^'' " '•'* 
 " have no is.sue," or any other words which import either a issue," or to 
 want or failure of issue of any person in his lifetime, or at the '^at effect. 
 time of his death, or an indefinite failui'e of his issue, shall be c?2^, ». 29. 
 construed to mean a want or failure of issue in the lifetime or 
 at the time of the death of such person, and not an indefinite 
 failure of his issue, unless a contrary intention appears by the 
 will, by reason of such person having a prior estate tail, or of 
 a preceding gift being, without any implication arising from 
 such words, a limitation of an estate tail to such person or 
 issue, or otherwise : but this Act shall not extend to cases proviso. 
 where such words as aforesaid import if no issue described in 
 a preceding gift be born, or if there be no issue who live to 
 attain the age, or otherwi.se answer the description required 
 for obtaining a vested estate by a preceding gift to such issue. 
 R. S. O. 1887, c. 109, s. 32. 
 Q 
 
84.2 
 
 Sec. 37 (I). 
 
 WILLS. 
 
 Chap. 128. 
 
 When dev!»e lili. Where any real estate is devised to a trustee or executoi-, 
 «x™utor*«imll ^^^'-■'^ devise sliall be construed to pass the fee simple, or other 
 pass \vhi)le the whole estate or interest wliich the testator had power to 
 *r.t**'T.'.'f.>'*'\'^nt ilispose of by will in such real estate, unless a definite tei-ni of 
 iv.c.2(i,H. 30. years absolute or determinable, or an estate or freehold is 
 
 thereby given to him expressly or by implication. 
 1887, c. 109, s. 83. 
 
 R. S. (). 
 
 •4 
 
 I 
 
 c 
 
 n: 
 
 9. 
 
 i 
 
 M'^heii devise 
 til .^ trustee 
 shall |)aHK the 
 whole estate 
 beyond what 
 IB requisite fm- 
 the trust. 
 Inii). .A.ct 1 V. 
 c. 2«, 8. 31. 
 
 Rev. Stat. 
 5. 127. 
 
 When devises 
 of estates tail 
 H. all not 
 lapse. Ini|i, 
 Act 1 V. c. 21), 
 8. 3& 
 
 ;{4. Where any leal estate is devised to a trustee without 
 any express limitation of the estate to be taken by such trustee, 
 and the beneficial interest in such real estate, or in the surplus 
 rents and profits thereof, is not given to any person for life, or 
 such beneficial interest is given to any person for life, but the 
 purposes of the trust may continue beyond the life of such 
 pel on, such devise shall, subject to The Devolution of Estates 
 Act, be construed to vest in such trustee the fee simple or 
 other the whole legal estate which the testator had 
 power to dispose of by will in such real estate, and not an 
 estate determinable when the purposes of the trust are satis- 
 fied. R. S. O. 1887, c. 109, s. 34. 
 
 im. Where any perscm to whom any real estate is devised 
 for an estate tail or an estate in quasi entail, dies in the litV;- 
 time of the testator, leaving i.ssue who would be inheritable 
 under such entail, and any such issue are living at the time of 
 the death of the testator, such devise shall not lapse, but shall 
 take effect as if the death of such person had happened immedi- 
 ately after the death of the testator, unless a contraiy intention 
 appears by the will. R. S. O. 1FS7, c. 109, s. 3.i. 
 
 'Oifts to is.sue 
 who leave issue 
 on testator's 
 death, shall 
 not lapse. 
 Imp. Act 1 V. 
 ■c. 2(i, s. 33. 
 
 Mortgage 
 debts to be 
 primarily 
 chargeable oi 
 the lands. 
 Imp. Act 17- 
 18 V. c. 113. 
 
 Hit. Where any person, being a child or other issue of the 
 testator, to whom any real oi personal estate is devised 
 or bequeathed for any estate or interest not determinable at or 
 before the death of such i)erson, dies in the lifetime of the 
 testator, leaving issue, and any of the issue of such person are 
 living at the time of the death of the testator, such devise or 
 bequest shall not lapse, V)ut shall take effect as if the death of 
 such person had happened immediately after the death of the 
 testator, unless a contrary intention appears l)v the will. 
 R. S. O. 1887, c. 109, s. 3G. 
 
 llTi. — (I) Where any person has died since the 31st day of 
 December, 18G.0, or hereafter dies seised of or entitled to any 
 estate or interest in any real estate, which, at the time of his 
 death, was or is charged with the payment of any sum or sums 
 of money by way of mortgage, and such person has not, by 
 his will or deed or other document, signified any contrary 
 or other intention, the heir or devisee to whom such real estate 
 descends or is devised shall not be entitled to have the 
 mortgage debt discharged or satisfied out of the personal es- 
 tate, or a.iy other real estate of such person ; ])ut the real estate 
 so charged shall, as between the different persons claiming 
 
!hap. 128. 
 
 Chap. 128. 
 
 WILLS. 
 
 Sec. 37 (1). 
 
 (i^a 
 
 executor, 
 , or other 
 power to 
 e term of 
 eeholfl is 
 R. S. (>. 
 
 ? without 
 ;h trustee, 
 le surplus 
 'or life, iir 
 ;, but tlie 
 e of such 
 )f Estates 
 simple or 
 itor ha'i 
 nd not ail 
 are satis - 
 
 is devised 
 n the life- 
 nheri tabic 
 he time of 
 , but shall 
 d immedi- 
 '■ intention 
 
 isue of the 
 is devised 
 lable at or 
 lie of the 
 person are 
 I devise or 
 e death of 
 ath of the 
 the will. 
 
 Ust day of 
 tied to any 
 iime of his 
 ira or sums 
 las not, by 
 y contrary 
 real estate 
 ) have the 
 lersonal is- 
 ! real estate 
 IS claiming 
 
 through or under the deceased person, be primarily liable to 
 the payment of all mortgage debts with which the same is 
 charged, every part thereof according to its value bearing a 
 proportionate part of the mortgage debts charged on the whole 
 thereof. 
 
 (2) Nothing herein contained shall afiect or diminish any Proviwx 
 right of the mortgagee on such real estate to obtain full pay- 
 ment or satisfaction of his mortgage debt, either out of the 
 personal estate of the person so dying as aforesaid, or otherwise ; 
 
 and nothing herein contained shall affect the rights of any 
 peison claiming under or by virtue of any will, deed, or docu- 
 ment made before the first day of January, 1874. R. S. O. 
 1887, c. 109, s. 37. 
 
 (3) Where any person dies on or afcer the 18th day of Alsu liens for 
 April, 1897, seized of or entitled to any estate or interest in chase'mo'ney 
 any real estate, which at the time of his death is charged with etc. Idij. 
 the payment of any sum of money by way of equitable charge, ^"jWl ^' 
 including any lien for unpaid purchase money, the provisions 
 
 of this section shall apply to such charge in the same manner 
 as they would be applicable if such charge were a mortgage. 
 «0 V. c. 15, s. 4. 
 
 38. In the construction of any will or deed or other ilocu- Cmiswuience 
 ment to which the next preceding section of this Act relates, a tfiat ttst'Xr' 
 general direction that the debts or that all the debts of the tes- debts ije p.-»id 
 tator shall be paiil out of his personal estate shall not be deemed ""* "[ '_*■■" 
 to be a declaration of an intention contrary to or other than Act 30 31 v. ' 
 the rule in the said section contained, unless such contrary or *=• ^''\ '■. |'„ 
 other intention is further declared by words expressly or <,. 34. 
 by necessary implication referring to all or some of the testator's 
 debts or debt charged by way of mortgage on any part of his 
 real estate. R. S. O. 1887, c. 109, s. 38. 
 
 ti9. The Acts of the Imperial Parliament described in the Acts rept iiied 
 Schedule to this Act (except so far as the same relate to any wills 
 to which section 7 and the following sections of this Act do not 
 extend) are, and shall continue to be, repealed to the extent in 
 the third column of the said Schedule mentioned; but such 
 repeal shall nut revive any Act or provision of law repealed by 
 them, nor shall the said repeal prevent the application of any 
 of the said Acts, or of any Act or provision of law formerly in 
 force, to any triMisaction, matter or thmg anterior to the time 
 of the repeal of the said Acts and to which they would other- 
 wise apply. R. S. O. 1887, c. 109, s. 39. 
 
644 
 
 Sched. 
 
 WILLS. 
 
 Chap. 128. 
 
 SCHEDULE. 
 
 
 s 
 
 
 (ti 
 
 I 
 
 AoTs Repealed. ' Title oi-' Acts Rei-ealed. 
 
 I 
 
 Extent of 
 Repeal. 
 
 32 Hen. 8, cap. 1 
 
 34-35 Hon. 8, cap. 5. 
 29 Car. 2, cap. 3. 
 4-5 Anne, cap. 16. 
 
 11 Oao. 2, cap. 20. 
 
 The Act of Wills. Wards andlThe whole Act. 
 Primer SeininSjWhere!*}' a man 
 may levise two parts of his 
 laud. 
 
 ThoBill concerning the e-\plana-|The whole Act. 
 tion of Wills. 
 
 An Act for the ppnention of Sections 5, 0. 12, 
 I Frauds anil Perjuries. j 19, 20, 21 and 22. 
 
 ! I 
 
 jAn Act for the amendment ()f|Sectioii 14. 
 the law and the better ad- 
 vancement of justice. 
 
 25 Geo. 2, cap. 6. 
 
 An Act to amend the law con- 
 cerning Common Recoveries, 
 and to explain and amend an 
 Actmatle in the t\venty-ninth 
 year of the reign of King 
 Charles the Second, intituled 
 " An Act for the prevention 
 of Frauds and Perjuries." 
 
 An Act for avoiding and putting 
 an end to certain doubts and 
 questions relating to the at- 
 testation of Wills and Codicils 
 concerning real estates in that 
 part of Great Britain called 
 England, and in His Majesty's 
 colonies and plantations in 
 .\merica. 
 
 Section 9. 
 
 The whole Act. 
 
 R. S. 0. 1887 -3. 109, Schedule. 
 
WILLS. 
 
 645 
 
 Act. 
 
 NOTES. 
 
 History. At common law there was no right to make a will of really, and 
 tlie right to so deal with personalty seems first to have originated in the eus- 
 tnm of certain localities, and to have spread by imperceptiUe degrees, until it 
 liri.-anie the law of the land. Williams on Kxeeutors, 2. The Wills Aots, 32 
 Hen. VIII. c. 1, an' .S4-35 Hen. VIII, c. ">, gave power to a tenant in fee 
 Kjrnple to devise his lands hy will in writing. No signature was required 
 until the Statute of Frauds, 29 Car. II, c. .'?, s. .">. That Statute also recpiired 
 that a will of lands should he attested and .sul>sorihed in pre.senee of the 
 <leviKor by "three or fimr credible witnesses."' The Statute of Frauds, s. 
 1!). also dealt with wills of personalty, V)y recpiiiing that a inmcuiiative will, 
 i.e., a will by word of mouth or informal writing, where the jjroperty exceeded 
 CM), should be proved by three witne.s.ses at least. Wills of lanil were, after 
 the Statute of Frauds and before 2.") (ico. II, e. (i, void if any of the witnesses 
 were not credil>le, i.e., if a witness oi- his wife were a beneficiary thereunder, 
 but l)y the last mentioned Statute, only the devise, legacy, estate, interest, 
 tiih or appointment became void and the will remained vali<l. Prior to 1874 
 theii^ was no legislation in force in Ontario relating to Wills of Per.sonalty, 
 other thaii tliat before mentioned. Wills of Personalty in writing were there- 
 fore valid without signature or witnesses. The Statute, 4 Will. IV., c. I, ss. 
 49-.'>l (C.S.U.C. c. S2, .ss. 11-13) hail however dealt with wills of realty of per- 
 sons ilying after Hth March, 1S.S4, l)y enabling after accpured real estate to be 
 devised by general words, and by abolishing the necessity of words of limita- 
 tion in a devise of a fee simple, and by reducing tlic n\uuber of witnesses 
 icquired to two, and by enabling them to sul>scriT)c in the presence of each 
 otiier oidy, aiul not necessarily (as re(|uircd by tiie .Statute of Frauds) in pres- 
 <'nce of the testator. The statutes were cumulative, and a will which was 
 invalid under either Statute, taken singly, miglit lie »npi)orted on their joint 
 authority : (Jrawford v. Curragh (ISOi)) i.") C. 1'. .V). After the invention of 
 the separate estate of married women, their wills were valid in equity to pass 
 jiroperty lield for their separate u.se ; Tavlor v. .Meads (18(i.)) 4 DeCi. .J. & S. 
 .■)!•", an<l by 22 Vict. c. .S4, s. 16. power was given them to devise or bequeath 
 tlicir property <leclared by statute to be tlieir separate proi)crty among tlieir 
 <thildren, or to tlieir liusl)aiuls if there were no children, the only reciuisite 
 being that the will should be executed liy the married woman, in the presence 
 of two or more w'tnes.ses. neitlier of wliom was her luisbaiid, but no attesta- 
 tion was reijuired. See (J. S. U. C. c. "3, s. l(i. Under this clause property 
 couhl not b<! left to one child to the exclusion of others ; Munro v. Smart 
 (IS7fl) 2(i (ir. .'110. Tlic section is |)ct))etuated as s. (i of the present act. 
 .Marric'l wonuMi, infants and liniatics had been especially excepted from the 
 Sf-.iute of Wills, 'H'.i'y Hen. VIII, c. ."), s. 14. Wills of infants of lands were 
 .ilways invalid, but iirior to 1874 boys of the age of 14 and girls of the age of 
 12 might make a will of personalty. 
 
 The statutes of Hen. VIII, sections .">, (i, 12. l!l, 2(). 21 and 22 of the Statute 
 of i''rands, and tin; Statutes of2.'i(!eo. II, G, together with other incidental 
 statutes, which it has not been necessary to notice are expressly rejicaled by 
 the Sclipdule to R. S. (). c. 128, and as to the execution of wills tlie Statute 
 of 4 Will. IV. c. 1 is impliedly re))ealcil. 
 
 Wills after lat January, 1874. 
 of 1874 : 
 
 (1) 'J'he act extondn to every (lescrijjtion of proi)crty. 
 
 (2) Kverything that a man jmssesscs (other than an estate tail) which wnidd 
 devolve upon his heir or personal representative, may be disposed of, 
 including contingent interests, rights of entry of all kinds, and after 
 a'Mjuired property. 
 
 (.'!) Nuncupative Wills, except of soldiers aiul seamen on active service are 
 abolished. 
 
 (4) infants arc incapable of making a will. 
 
 The following arc thi' main features of the act 
 
646 
 
 WILLS. 
 
 a 
 i 
 
 5 
 I 
 
 (.")) The will nmst he ssigiied liy the testiilor at I lie "foot or end" amt 
 attested by two witiiesseH, liotli present at the same time, in his 
 j)resence ; 
 
 ((i) The witnesses need not lie " credilile," but gifts to a witness or to the 
 s|)<iuse of a witness are invalid. 
 
 (7) Marriage is a revocation except in the eases provided for by s. 20, but 
 
 alteration in cireuinstanoes, as by the birth of issue, is not ; 
 
 (8) The will "as to the real and personal estate eonii)r'''ed in it " speaks 
 
 from death. 
 
 (9) Lapsed and illegal devises fall into the residue and <lo not go to the 
 
 heir. 
 
 Harried Women. By the original Wills Aet of 1874 (3(j Vict. c. 20, s. 4) 
 a married woman was authorized to make a will, not only of her separate 
 estate, but also of ever^- species of projicrty which would devolve upon her 
 heir or personal representative, aii<l the law so continued until 31st ^*ecember 
 1887, wnen on the revision of tiie Statutes, the clause interpreting " person " 
 and "testator" to include a married woman was omitted, and the married 
 woman's power to make a will was conferred by the Married Woman's Pro- 
 perty Act, R. fS. O. (1887) c. '.32, which applied oidy to her separate property. 
 In consequence, a will of a married woman would not comprise jiroperty ta 
 wliich she became entitled on or after the death of her husband ; see 8 C.L.T. 
 )8I ; Re Price, Stafrord v. Stafford (1885) 28 Ch. D. 709 ; Re Cuno, Mansfield 
 v. Mansfield (1889) 43 Ch. D. 12; Re .Smith, Bilke v. Roper (1890) 45 Ch. I). 
 (i32. The present act restores the oiiginal interpretation of the word testator, 
 and a married woman has now the same power as one unmarried. It more- 
 over, in effect, provi<les, s. 26 (2) that wills executed liefore the restoration of 
 the clause shall speak froi death, and sliall not require re-execution or 
 re-publication. 
 
 Indians. An Indian mav make a will ; Johnston v. Jones (1895) 2(5 
 (). R. 109. 
 
 Signature of Testator. The testator must sign at the "foot or end." Con- 
 sideralile contro\ers\- raged foi' some years in Kngland o\'er the meaning of 
 these words. A will which had only the attestation clause on tlie last page, 
 thei'e being sufficient room on the jireceding j)age for the testator's signature, 
 was held not to be signed at the foot or end when the signature was on the 
 last page; Smee v. Bryei' (1848) (i Moo. P. C. 404 ; and many eases where 
 the signature was written transversely aenms the will and in other places, 
 arose. These cases were all provided for by 15-16 Vict. c. 24, s. 1, which is 
 s. 12 (2) of our Statute. As the explanatory Statute was enacted with and as 
 |)art of the [irineipal act in 1873, no (piestions have arisen in Ontario on the 
 meanitig of "foot or end." Care must, however, still be taken as to the 
 position of the signature. A will consi.sting of six sheets, of wlii<th five were 
 signed by the testator and attested by tlie witnesses, and the sixth of which 
 I'ontained a testimonium and attestation clause, and the names of tlie wit- 
 nesses, but not the signature of the testator, was refuseil jirobate even of the 
 live sheets ; Sweetland v. Sweetland (1865) 4 Sw. it T. ; and so where a will 
 on a small card was signed by the testator's mark in the middle of the writing 
 it was held not to be signed at the foot or end : Margary v. Robinson ( 1880) 
 12 P. I). 8. Signatures also in earlier pages of a will have been lield to be 
 signatures of authentication, and not of execution, and the absence of a signa- 
 lire at the end invali<lated the whole ; I'liipps v. Hale (1874) L. H. 3 J'. & I). 
 KiO; Re I Hikes (1874) L. R. 3 1'. * 1). 104. On tlie other hand signatures 
 ujion the first Jiage of a litliogra|ihed form have been lielil an executi<in, and 
 probate lias been granted of that liagc. Hoyle v. Hariis (1895) P. 103; Re 
 .\iistee (1893) P. 283 ; and in one case the later pages were hehl to be the com- 
 mencement, an<I the signature on tlie firsi )iagc to be at the end ; Re VVotton 
 (1S74) L. R. 3 P. & I). l.")9 ; and where a iir.st page contained a reference to 
 the others they were incorporateil or treated as interlineations ; Re Birt (1871) 
 L. R. 2 P. & i). 214. 
 
 Where a testator <lesired to alter his wilt, which had been ))repared 'ty a 
 solicitor, and a layman wrote on the third side of the sheet of foolscap con- 
 taining the will " the following alterations having been first made " followed 
 liy the changes desired and the mark of tlie testator, and the signatures of the 
 witnesses were then put on the margin of the first page, which contained the 
 will, the ocHlnil was hehl not to be duly exe<^ute(l ; Re Hughes (1887) 12 P. I>. 
 
WILLS. 
 
 HiT 
 
 •_'6 
 
 I tli(- 
 
 Kt". Wlii'ii the signature is on a separate piece of j)aper atta<;he(l oy wafers 
 to ii will, and it is not shown that the pajier was attaciied when the will was 
 signed, prol)ate will not l)e granted ; Ke Lambert (lH(i2) 31 L..J.P. IIM ; Re 
 W.St (1863) 3-2 L.J.1'. 182. 
 
 When a codicil was written on the upper part of the first side of a half sheet 
 of foolscap doubled, with the words " foi' my signature and witnes.ses see next 
 KJcle," and on the fourth side appeared only the signatures of the testator ui'd 
 witnesses, and the witnesses saw no writing on the paper, the codicil was lieltl 
 no! to be duly executed ; Re Hammond (186'2) 3 Sw. & T. 90. 
 
 Where a will apparently ended with an attestation clause on the third |)ago 
 where it was signed by the testator and witnesses, Imt at the foot of tlie third 
 page there was written the words " Turn over," and on the fourth page was a 
 devise of the real estate and the unattested signature of the testator, the fourth 
 page was held not to be part of the will, although the witnesses before execu- 
 tion saw some writing on the fourth page, but the signature was not made or 
 acknowledged in their presence ; Re Dearie (1878) 47 L.J. P. 4.'). 
 
 Signatures which are at the foot or end. The following wills have been held 
 to be duly signed at the foot or end. Where the first and thinl pages of a 
 sheet of foolscap were tilled, and the signature was written crossways on the 
 second page ; Re Coombs (ISBtt) L. R. 1 P. & IJ. 3()'2 ; where the signatuie was 
 jjartly acro.ss the last line but one, and entirely al«)ve the last line except one 
 letter which touched the last line ; Re \Voodley (1864) 3 fSw. & T. 429 ; where 
 the will was on three sides of a sheet of note jmper, and the signatiu-e was on 
 the second side, except the last two letters, which were on the third side ; Re 
 I'owell (1865) 4 iSw. & T. 34; where the will ended on the third page of a 
 sheet of foolscap, the lower half of the page being blank, and the attestation 
 clause and signature were at the top of the fourth page ; Hunt v. Hunt (18()()) 
 L.R. 1 P. & 1). 209 ; Re Wright (1865) 4 Sw. & T. 35 ; where the signature 
 was written down the lower part of the edgti of o half sheet of note paper con 
 taining the will ; Re Jones (1865) 4 Sw. & T. 1 ; where the will filled the first 
 j)age of a double sheet of foolscap, and the signature and attestation clause 
 were in the middle of the fourth page; Re Fuller (1892) P. 377; where the 
 testimonium clause was at the foot of the second page leaving j)lenty of room 
 for the signature of the testator and witnesses who, however, signed opposite 
 an attestaticm clause on th- third page ; Derinzy v. Turner (1851) 1 Ir. Ch. R. 
 341 ; where the will covered three-fourths of the tirst page, and one-half of 
 the second, and the signature was opposite the second line of an attestation 
 clause near the top of the third page ; Re Williams (1865) L.R. 1 P. & 1). 4 ; 
 where the signature was s(pieezed into what had been a blank sj)ace in the 
 attestation (■lause ; Re Huckvale (1867) L.R. 1 P. & 1). 375 ; where the will 
 was on the uj)per part of one side of a piece of pa])er and the signature an<l 
 attestation clause on the back ; Re Archer (1871) L.R. 2 P. & D. 252; where 
 the will was on the first page and the signatures ujion the fourth, the secoml 
 and third pages l)eing blank; Re Rice (1871) Ir. R. 5 Eij. 176; whei'e the 
 testator's signature was muler those of tlie witnesses, l)ut a (hie execution was 
 to be inferred from the attestation clau.se : Re Puthlephatt (1870) L.R. 2 P. & 
 I). 97, .see also Re Jones (1877) 25 W.R. 215; Byles v. Uox (1896) 74 L.T. 
 222, where the later pages of the will on a lithographed ft>rm (^ould be read as 
 theccmuuencement of the will and the first pages containing tlie signatures and 
 attestation as the last ; Re Wotton (1874) L.R. 3 P k I). 159 ; where the will 
 w IS on the first and third sides of a sheet of foolsca]) and the attestatiim on 
 tlie second ; Re Stoakes (1875) 31 L.T. 552 ; where the fifth page contained an 
 attestation clause and the sixth the signature of the testator |)ret;eded by the 
 words " To which will and testament 1 iiei'eunto annex mv seal and signa- 
 ture"; Re Horsford (1874) L.R. 3 P. * 1). 211 ; where the\sign»tures of the 
 testator and witnes.ses were on a sepaiate paper attached by a string liul all 
 'Ycre so attached when the testator acknowledged his signature, and the 
 witnesses signed, ib ; Cook v. Land)crt (1862) 3 fSw. & T. 46; Ke (iausden 
 (1861) 2 iSw. & T. 362 ; where the aignat\n'e was written in the blank space of 
 .-in attestation (^ause in a lithographeil form ; Re Harris (1875) 23 W.R. 734, 
 s<e also Re Pearn (1876) 1 P.T). 70; Re Walker ( 1861 ) 2 Sw. & T. 3*":4 ; Re 
 Casmore (1869) L.R. 1 P. & I). 653; where the signature was written tt.nis- 
 vevsely along the left hand margin of the page containing the will, nt^ar tI>o 
 to)( and running downwards as far as the commencement of the second line ov 
 the will, and the witnesses" signatures were above the will and opposite a por- 
 tion of the testator's signature ; Re (Jollins (1879) 3 L.R. Ir. 241 , where from 
 the obvious se(|Uence and sense of tin; context, the <'oui't was satisficil that the 
 signature leally followed the dispositive part of the will, though literally it 
 
«4K 
 
 WILLS. 
 
 i 
 
 3 
 
 lir 
 
 pri 
 Wi 
 
 was above it ; Ro Kinipton (1864) 3 Sw. & T. 42" ; wliere tliu testator wrote 
 " III witness wiiereof, I, Martin Hall Mann, have hereunto set my hand," l>ut 
 iliil not otherwise sign ; Re Mann (ISoO) '28 L..I.P. 19 ; where the last sentence 
 coninieneed immediately above the signature and was continued in three short 
 lines to the left of it, tlie two last lines being somewhat below the signature ; 
 Re Ainsworth (1870) L.R. 2 P. & 1). 151 ; where a will extended over to the 
 tliiril l)age of a sheet of foolscap, but the signatures of the testatrix and 
 witnesses were on the first page, and she also signed the second page in their 
 presence before execution, probate was granteci of the first two pages ; Re 
 "ray (1883) 31 W.R. 470. ('lauses below the signature written either before 
 or after execution M'ill be excluded from the pr()l)ate ; Re Dallow (1860) L.R. 
 1 1". & I). 18i» : Re .\rthur (1871) L.R 2 P. k 1). 273. 
 
 Signature by Testator's Direction. The signature may be written by some 
 
 other per.son in the testator's j)ieseiice, and by his direction though he is too 
 ill to write. It nuist however be accoinpaiiied by some act or word on his part 
 to show that it is made at his re(|ue8t; Re Marshall (18(i(i) 13 L.T. (543. Athx- 
 ing a stamped signature of the testator l)y a tliird party at the testator's direc- 
 tion is sufficient ; .Tcnkyns v. (iaisford (1862) 3 Sw. & T. !)3. 
 
 Signature by Mark. If the testator executes by mai'k, the signature will not 
 be vitiated by a wrong name being written against it ; Re Clarke (1858) 1 Sw. 
 & T. 22, nor by his Ijcing described throughout the will by a wrong name ; 
 Re Douce (1861) 2 Sw. & T. 503. If the testator's hand is guided in making 
 a mark it is sufficient : Wilson v. Bcildnrd (1S41) 12 Sim. 28. 
 
 Signature by Initials. Initials are sufticieiit ; Re Savoy (1851) 15 Jur. 1042 ; 
 Re Kmcr"<iii (1882) !) L.R. Ir. 443. 
 
 Signature In Wrong Name. A testator iiiav sign in a wrong or assunuMl 
 name; He Redding ( 18.-)0) 14 Jur. 1052; Re ( Jlover (1847) 11 Jul. 1022, but he 
 iinist .si ^'11 the pa])er he inteiidi-d to sign, not the will of another per.son althougli 
 in the same terms iinifntis iiiiittiiiiHi • Re Hunt (1875) L.R. 3 P. & 1). 250. 
 
 Signature in Presence of Witnesses. The signatiu'e or acknowledgment must 
 1h' made in tlic presence of two witnesses present at the .same time ; Hind- 
 marsh V. (Jharlton (18(il) 8 H.L.t). 160. Where tlie witnesses see the testator 
 write something, but cannot sav wliat it was, it may be presumed it was his 
 signature ; Smith v. Smith (18(it)) L.R. 1 P. k 1). 143; Ci)Oj)er v. Bockett (1846) 
 4 .Moo. P.C 419. Where tlie testatrix was ill in bed in one room and the will 
 was attested by two witnesses wlio wi^ie in an opposite room, but who did not 
 see her make or acknowledge her signature, or liave any conversation with 
 her respecting it, the will was held not to be validlv executed ; Re Killick 
 (1S()4) 3 Sw. & Tr. 578. 
 
 Acknowledgment of Signature. The testator need not actually sign in the 
 jiresence of the witnesses. It is sufficient if he acknowledges his signature to 
 tlicm, but to constitute a good acknowledgment the witnesses must see or have 
 an opportunity of seeing the signature. If they do not, it is immaterial that 
 the signature was in fact there or that the testator said that tlie paper was 
 his will, or that his sigmitr.rc was ir.side ; Re (iunston (1882) 7 P.l). U>2 ; 
 Holt V. <;engc (1843) 4 Moo. P.C. 2(i5 : Scott v. Scott (1887) 13 O.R. 551. 
 Where the witnesses were illiterate an<l could not say if the signature was 
 on the paper at the time of attestation, probate was refused ; Pearson v. Peai'- 
 .son (1871) L.R. 2 P. * 1). 451. 
 
 Attestation. The witnesses nuist both be jjiesent at the same time and must 
 subscribe in ))re9ence of the testator. 
 
 A testator's signature inav be acknowledged. No such latitude is allowed 
 in the case of an attesting' witness; O'Neill v. Owen (1889) 17 O.R. 525. 
 Where a witness who had seen the testator sign, an<l liad witnessed his signa- 
 ture, and afterwards in the presence of a second witness, traced over his signa- 
 ture M'itli a ilry pen, and the .second witness then signed, the will was held 
 not to l)e dvdv executed ; Wyatt v. Beriv (1893) P. 5 ; Home v. Featherstone 
 (1896)73 L.f. 32: Re Ma.lcJocks (1874)" L.R. 3 P. & I). 169; Casement v. 
 Fulton (1846) 5 Moo. P.C. 130. The signatures of the witnesses must be nuide 
 after the testator has signed w acknowledged his signature ; Hindmarsli v. 
 ('harlton (1861)8 H.L.C. 160. The testator must see the witnesses sign, or be 
 in a position to do so. Where the testator wiis in a state of insensibility ; 
 Right d. Carter v. Price (1770) 1 Uougl. 241 ; or where he could not as he lay 
 in bed see them sign; Clerk v. Ward (1706) 4 Bro. P.C. 71; Jenner v. Finch 
 
WILIX 
 
 649 
 
 -(ISMO) .-. IM). KMi; Trilif v. Tiil>f (1S49) I Hol>. Koc. Rep. 77'>; Doc <1. VViiglit 
 V. -Manifold (1813) 1 M. & IS. '294 ; the attoHtntion was invalid. 
 
 Tilt' implication is that the testator saw the witnesses sign; Morrison v. 
 Arnold (1816) 19 Ves. 071. 
 
 Where the will was executed in a carriage outside an attorney's office, in 
 the )(rescn<;o of the witnesses, and the witni^sses then returned to the attor- 
 ney's ofKce, and tlie carriage was put hack to the window of the office, through 
 which the testatrix might have seen what passed, the execution was valid; 
 Ca.ssori V. Dade (1781) 1 Hro. C.C. !t!(. Wluu-e one witness subscrihed imme- 
 diately after the testator, in the same loom, and the other witness suhHcrihcd 
 in the adjoining room, and the testator, while in l)ed. might have seen that 
 ])art cif the table on whicli the will was lying when the witness signed, tiie 
 execution was valid; Re Trinunell (ISti.i) II .lur. X.S. 'J+S. 
 
 Position of Attestation. The witness should attest the oi)crative signature, 
 i. e., the signature at the foot or end of the will. Where the operative signa- 
 ture was on the tentli page, and the witnesses attested initials of the testator 
 iin tile tirst niiu' jiages tlie exec\ition was incomplete; I'hipps v. Hale(lS74) 
 L. K. :i v. k I). I6(i. Where the attestation was at the l)ottoin of the first 
 page, and tliere was no attestation on tlie second, only the Krst page was 
 admitted to probate ; He Malen (1885) 04 L. J. 1". ill. The fact tliat a witne!^s 
 signs in the cliaiiicter of executor will not jircvent his signature fioin being 
 operative as tliat of a witness ; (iiitlitlis v. (iiiffiths (1871) L. H. ■* P. & D. 
 .'llHl. Wliere a testatrix signed by mark on the first and second pages, Init the 
 witnesses attested only the mark on tlie first Jiage the will was invalid ; He 
 Dilkes (1874) L. R. 3 1'. & 1). I()4. Wliere the witnesses signatures were in the 
 margin op)iosite alterations and interlineations only, the attestation was good ; 
 He Streatley (18ill ) P. 17'i and the suliscriiition of the witness need not be 
 placed at the foot; Roberts v. Phillips (I8.m) 4 K. * H. 4.'")0. 
 
 Signature of Witness. If it be clear that the witness intended to attest the 
 will any signature is sufficient — he need not sign his own name ; Re Duggins 
 (lS7(t| :ii» L.T.P. -24 ; '•.Servant to Mr. Sperling" the testator, is sufficient ; 
 He Sperling (18(i4) :{ Sw. & T. •27-2 ; so is a mark : He Knvon (1873) L. R. 3 P. 
 ■k 1). i»-2; or initials ; Re Christian ( 1 84i») 2 Roll. I';c<'. Hep. lit); altlumgh the 
 witnes.ses can wiite; Re Amiss ( 18411) 2 Hob. Iv c. Hep. IKi. But there must 
 be .some mark intended to reiiresent a signature ; a correction of an error in a 
 previous writing of his name, or the addition of a date will not amount to a 
 subscription; Hindmarsh v. Charlton (1801) 8H.L.C. 10(1. The hand of the 
 witness niav lie guided bv another; Lewis v. Lewis (1801) 2 Sw. iV T. l.-)3 ; 
 He Frith (1808) I Sw. & t. 8; Harrison v. Klvin (1842) 3 (,).B. 117 : Hell v. 
 Hughes (1880) ") L. R. Ir. 407. Wliere a witness aftur writing his christian 
 name was too feeble to complete his signature, the attestation was incomplete ; 
 He .Maddoeks (1874) L. H. 3 P. & I). 100. 
 
 The signature by a witness in her husband's name is not good ; Re Lever- 
 ington(l880) II P.D. 80; Pryor v. Pryor (1800) 2il L..T.P. 114. »\or is a sub- 
 -scription of the name of a witness bv a third |)ersoii who was himself present 
 at the execution : Re Duggins (1870) 3il L..1.P. 24. 
 
 Form Of Attestation. No form of attestation is necessary. The fact that the 
 formal attestation described a witness as only attesting the signatures of two 
 other witnesses (the attestation of one of whom was irregular) did not invali- 
 date the execution ; Mason V. Bishop (1882) 1 C. iV K. 21. Before 1874 the 
 presence of an attestation clause withiait attestation raised a presumption 
 jigainst the intended finality of the jiaper, so as to make it insufficient to pass 
 even jiersonalty ; Douglas v. Smith (1833) 3 Knapp I ; but the presumjition 
 might be rebutted ; Walker v. Walker (1810) 1 Mer. ."iOS ; Stewart v. Stewart 
 ■(1837) 2 .Moo. P.C. MI3; Bateman v. I'emington (183!)) 3 Moo. P.d 22.3. 
 
 Presumption Of Due Execution. If the will appears on its face to have been 
 properly executed, due execution will he jiresumed ; Llovd v. Roberts (18.'')8) 
 12 Moo". P.C. ir>8; Cregreen v. WiUoughby (18(i0) .-) .fur.' N.S. ")!)0 ; and the 
 ))rcsenc-c of an attestation clause, reciting the necessary facts will outweigh 
 doubtful evidence of the witnesses to the contrary ; U'Meagher v. O'Meaghcr 
 (1883) II L.R. Ir. 117; Bailey v. Krowaii (1871) 1!) W. R. oil; Re Thomas 
 (18.">9) I Sw. & Tr. 2r),"> ; and it will not lie rebutted by defective memory of 
 the attesting witnes.ses . Woodhousc v. Balfour (1888) 13 P.D. 2 ; Re Holgate 
 (1800) 1 Sw. & T. 201 ; Vinniccmibe v. Butler (180.-)) 3 Sw. & T. 580, nor by 
 the evidence of one attesting witness ; Wright v. Rogers (1860) L.R. 1 P. & 
 D. 078. If the will is 30 years old and contains an attestation clause, tt /irinm 
 
I 
 
 f 
 
 3 
 
 660 WILLS. 
 
 fiide case will be made by proving tlii' deiith of the \vitiien.seM, and the hand- 
 writing of one of them ;" Andrew v. Motley (1863) 1'2 C.li.N.S. oSO, and evei> 
 without evidence, if the will comes fir)m proper ('Ustodv ; Orange v. I'ickfoid 
 (1H5«) 3 Drew. 403 ; Doe d, Spilsl)uiy v. Uurdett (1S37") 4 A. * ]-]. I. Where 
 the witnesses denied the signatures, 'liut tlie attorney who drew the will, an<l 
 was present at its execution, swore that tiie witnesses had duly signed the will 
 as attesting witnesses, and other persons who knew the handwriting of the 
 witnesses swore that tlie signatures were theirs, the court admitted tlie will to 
 probate; .Myers v. (Jibson (IH()(>) 14 W.H. 901. 
 
 Ill the face of distinct anil positive evidence to the (contrary the court cannot 
 say that a will was duly executed, l)ccaiise it appears to bt- so ; \Vyatt v. Barry 
 (1893) P. fi, even if tlie're is a formal attestation clause ; Croft v. Croft (18t)5). 
 4 Sw. & T. 10. 
 
 Atwence of Attestation Clause. Where there is no formal attestation clause, 
 or the clause is incomplete, the presuni|)tion of due execution applies with less 
 force ; Re Rees (IStiu) 34 L. J. 1'. .")(> ; Vinnicombe v. Butler (18t).")) 3 iSw. & 
 T. 580. And where there is no artirniative evidence that at the time nf 
 execution the testator's name was on the paner, the production of it to the 
 witnesses, with a recpiest tliat they will sign it as a paper is not in itself 
 sufficient to justify' the inference that it was already signed ; Fischer v. Pop- 
 ham (1875) L. R. 3 P. & D. 246 ; Re Swinford (1869) L. R. 1 P. & D. 630. 
 
 Execution of Power. S. 13 applies as well to powers of appointment created 
 after the act as to those previously created; Hubbard v. Lees (1866) 4 H. & C. 
 418. It does not apply to a power rei|uiring an instrument in writing sealed 
 and delivere<l ; Taylor v. .Meads (1 86.")) 4 DeG. J. & S. .-)97. 
 
 Wills of Soldiers and Seamen. Soldiers and seamen may, informally or by 
 word of mouth, in certain ca.ses, make a will of uersonalty. The word soldier 
 will probably include a militiaman ; Horton v. Leeds (185.')) 5 K. & B. 595, but 
 not a workman employed in an army works corps, thougii subject to the 
 Mutiny Act ; Cooke v. I'axton (1859) 4 H. & N. ,368. It inc'luded a person in 
 the service of the late Kast India Comjianv- ; Re Donaldson ( 1 840) 2 Curt. 380. 
 The soldier must be '"in actual military service " i. e. on an expedition. 
 Being ([uartered in barracks at home ; Driuumond v. Parish (1843) 3 Curt. 522^ 
 or in the colonies ; White v. Repton (1844) 3 Curt. 818 ; or at Malta, though 
 \nider orders for the West Indies ; Re Norris (1884)3 N. C. 197, is not sutti- 
 eient. But see Re Phi))ps (1840) 2 Curt. 308 ; Re Johnson (1839) 2 Curt. 341 i 
 Re Pery (1844) 2 L. T. 0. IS. 335. .\n officer on a tour of inspection of the 
 troops under his command is not in actual .service ; Re Hill (1849) I Rob. Kcc. 
 276. A soldier pa.ssing fnuii one regiment to another, both regiments being in 
 active service against the enemy may make a muicup itive will ; Herbert v. 
 HcrViert (1855) Dea. & Sw. 10; and so may a soMier on joining a regiment 
 with the view to march against the enemy ; Re Thoriic (I8(i5) 34 L. J. P, 131; 
 aiul a will made two days before marcliing was held valid : Bowles v. Jackson 
 (1853) 1 Spinks Kec. & Adm. 294 : and so was the will of a soldier who had 
 received a mortal wound on tlic battlefield ; Re Fanpihar (1845) 4 N. C. 47 i 
 Re Prenderga-st (1840) 5 N. C. 92. 
 
 A mariner or .seamen luust be " at sea " to make his nuncupative will 
 valid. The phrase would not include an admiral of a naval station living on 
 shore, and who made liis vill at liis house ; Kuston v. Seymour (1802) cited 2 
 Curt 339 ; 3 Curt. 530 ; noi' a .seaman who was in a Bi'itish port, and wliose 
 vessel did not sail for several days after making the will ; Re Corby (1854) IS 
 Jur. 634. The vessel need not necessarily be in tidal waters. A seaman 
 engaged w'ith the enemy in a river beyond the flux an 1 reflux of the tide, was 
 held to be "at .sea"; Re Austen (1S.">3) 17 Jur. 284. A seaman returning 
 home invalided ; Re Saunders (1805) 1 P. & 1). 16 or on a training shij) ; Re 
 McMurdo (1807) 16 W. R. 283, or in harboi ; Re Lay (1840) 2 Curt. 375 is at 
 sea. The privilege applies to tlie wliole servicje, e.g. merchant seamen ; 
 Morrell v. Morrell (1827) 1 Hagij 51 ; surgeons in the navy; Re Saunder.s 
 (1865) L. R. 1 P. & D. Ki ; and .sers ; Re Haye." (18.39) 2 Curt. .338. 
 
 -\n infant over 14 is witliin t].< priviloge ; Re Fanjuhar (I84(i) 4 N. C. 651. 
 If made at sea, tlie will is valid, though the death takes place on shore j Re 
 Leese(1853) 17 Jur. 216. 
 
 Alterations will />n'»)a facie be presumed to have been made during tliecon- 
 tinuanue of the military se.'viuo, or while at .sea, as the case ma\' be ; Re 
 Tweedale (1874) L. R. 3 P. & D. 204. 
 
WILLS. 
 
 651 
 
 The Mi'iclmnt Shipping Act IM!H (.")7 it ^S Vict. .;. m) 17K, (see Vdhinic of 
 Ddniiiiioii Statutes 1895 p. 9!),) provides for deHliiig with the property of ii 
 (lewased seaman by the Knglisli Hoard of Trade, ancls. ]"!',, confers power on 
 the Uoaril to refu.su to pay or deliver tlie property in accordance with a will, 
 
 (a) If the will was made on board ship, to any person claiming under the 
 will, unless the will is in writing, and is signed or acknowledged by the testa- 
 tor Ml the presence of, an<l is attested by, the niastel' or first or only mate of 
 the sliip and, 
 
 (1)) If tiie will was not made onboard ship, to any perton claiming nailer 
 the will, and not being related to the testator by blood or marriage, unless 
 tlie will is in writing, and is signed or acknowledgc<l liy the testator in the 
 presence of, and is attested by two witnesses, one of wlioni is a sii])erintendent 
 or is a minister of religion otliciating in the place in which the will is made or 
 where there are no such persons, a justice, British Coiisular otHccr, or an 
 officer of customs. 
 
 That part of the act applies to all sea-going ships registereil in the United 
 Kingdom. Also to all .sea-going British ships registered out of the United 
 King(hm), and the owners, masters and crews thereof, where the crew are dis- 
 "liarged, or the final port or destination of the ship is in the United Kingdom ; 
 ss. 240, 2S1. 
 
 The Knglish Navy and Marines (Wills) Act ISO") (2X & '2!) Vict. c. 72) also 
 makes certain modifications with regard to the wills of })etty officers and sea- 
 men in the navy for the purpose of protecting them from money lenders. 
 
 The wills of soldiers and seamen are sul)ject to the laws in force as regards 
 ])ersonalty before the Statute of Frauds s. 23. Marriage of the testator will 
 not revoke the will ; Doe v. Barford (ISI.")) 4 M. & S. 10, but marriage and 
 biith of issue conjointly would do so. Jarman on Wills 5tli Kd. 1 1 1. 
 
 .-\ffidavits proving a will of a soldier or seaman should contain a full state- 
 ment of the circumstances relied upon, as shewing that he was in active .ser- 
 vice or at sea as the case may be ; Re Thorne (1865) 34 L. J. P. 131 ; 4 Sw. & 
 T. 30, and two disinterested persons must swear that the signature to a will 
 signed, but not attested, is in the handwriting of the testator ; Re Neville 
 (18")9)4.Sw & T. 218 ; and it must be shown by affidavit that the deceased 
 had at the time of its execution, a knowledge of its contents ; Re Hackett 
 (1859) 4 Sw. & T. 220; and if the will is verbal only tliesul)stance of thedecla- 
 ra'iiju must be shown, and it must appear that the deceased intended it to be 
 testamcntarv. 
 
 OiftB to Witnesses. The Statute of Frauds I'erpiired witnesses to wills of 
 land to be crc(lil)le. If, tlierefoie, a witness to a will was a devisee, he cimld 
 not be lieard in ])roof of it ; Tucker v. Sanger (1824) 13 Price 119, and the will 
 was conse(piently invalid. The Statute 25 (Jeo. II. c. H, wliich w-as in force in 
 Ontario until 1874, enacted that oidy the devise, legacy, etc., to the witness 
 should bo voi<l, and tiiat such person shoi Id be admitted as a witness to the 
 will. After conflicting decisions it was settled that the Statute <lid not apply 
 to wills of mere personal estate; Hopkins v. Hopkins (1883) 3 O.R. 223; 
 Foster v. Banbury (1829) 3 Sim. 40: Kmmanuel v. Constable (1827)3 Russ. 
 436 ; Brett v. Brett ( 1826) 3 Add. 210, 1 Hagg. 587. A devise to one of three 
 witnesses was void although the will would have been snfficientlv attested 
 withcmt liim : Little v. Aikinan (1869) 28 U.C.R. 337 ; Doe d. Tavlor v. Mills 
 (1833) 1 Moo k R. 288 ; Hopkins v. Hopkins (1883) 3 O.R. 223. 'Tlie Statute 
 25 (ieo. II. c. 6 did not make a will good if one of the witnesses was not 
 credible by reason of a devi.se to the spou.se of the witness, and where the hus- 
 band of a married woman, to wluuu a (fevise was made, was one of two witnesses 
 to a will, the will was invalid ; Ryan v. Devereux (1866) 26 U.t'.R. 100, but 
 see Crawford v. Boyil 22 (ir. 398 where the devise onlv was lield invalid, citing 
 Hatfield v. Tliorpe (1822) 5 B. & AM. 589. A devise'of rents was within the 
 Statuti; of Frauds, anil 25 (ieo. II. c. 6 ; Habergham v. Vincent (1793) 2 Ves. 
 204; Hopkins V. Hoiikins (1883) 3 O.R. 223, and so was a bequest of the 
 ])roduce of real estate converted by the will ; Shedilon v, (ioodrich (1803)8 Ves. 
 4S1 ; but money due on mortgage was not ; Hassell v. Tynte (1756) Anib. 318, 
 
 Wills made on or since 1st .January, 1874, require attestation to pass either 
 real or personal property, and a benefi(;ial devise or bequest to a witness, or 
 the spouse of a witness, will be void, but the will itself will lie valid. Where 
 a devise or beipicst is to two as joint tenants and one is a witness, the other 
 will take the whole ; Re Fleetwood, Sidgreaves v. Brewer (1880) 15 Ch. D. 
 594; Young v. Davies (1863) 32 L..I. Ch. 372; Farewell v. Farewell (1892) 
 
 I 
 
\T 
 
 a52 
 
 WILLS. 
 
 I 
 
 c 
 % 
 
 ft 
 
 is: 
 
 22 O.K. -"H; and on n device to a cIiish itH ti'iintx in oonnnon tliosc not attesting 
 will take the whole ; Fell v. Hiadolph (IH7.J) L.H. lOC'.R 701. A third wit 
 
 nes.s who attests the will as u token of approval, or as signifying aeceptanee of 
 exeeutoiship (iuniot take a legacv tlieremider : I'o/.ens v. (^roiit (18";i)42 
 L..I.('h. H40 : Re Forest (IS(i'2)2Sw. & T. K.SJ : Ke Hickman (1S(17) 1(1 L.T. 
 43."). Uiit wliere tlie Court is satisHed either liy evidence, or 1)\ the |K)sition 
 of the signature, that the signature is not really an attcMtation of the will, the 
 Hignature inav he excluded from the piolmte : He .\hu|)hv (1N7.S)S Ir. H. Fi|. 
 3(Mt ; He .Sjmrman (ISIKt) L.H. 1 1". h I). t!(il : He Smith (IS!H() jo IM). 2; 
 and the legacy will not he void : Haiidtield v. Handfield (IS(>1) S 
 H.L.C 221). Where the will was attesced hy two nuirksmen. and signed also 
 by two other peisons as witnesses, their signatures were treateil as those of 
 attesting witnesses anil not nieiely as verifying the attestation of t)ie marks- 
 men, and aliuacv to the wife of one failed ; Wigan v. Howhind ( IS.'iH) 1 1 Hare 
 l.-)7. 
 
 Where a wdl gave a legacy to a |)(Mson if lu' survived the period of distrihu- 
 tion, and words were struck out of the will taking away the condition of 
 Hurvivorship, and a legatee \\itnesse<l the alteration. Ids representatives were 
 oxeluded from participation ; (iaskin v. Hogers (IHti6) L.H. 2 K(|. 284. 
 
 A solicitor who is appointed i^xecutor lannot receive the l)enetit of a elausu 
 entitling him to protit costs if he is one of the attesting witnesses ; Re Harher, 
 Rurgess V. Vinnict.nie ( ISSli) .'{I Ch. I). (ilM : Re I'ooley (IHHil) 40 (;h. 1). 1. 
 
 A i-odicMl lonlirniing a « ill, will remler valid liec|uests madi' to an attesting 
 witness to the will, who is not a witness to the codiiil ; .Andeison v. Anderson 
 (IH72) L.H. i:« Ki|. .SMI ; I'urcell v. liergin (IHD.Sl 20 A.R. .VW. The marriage, 
 after attestation of a will, of a devisee to one of the attestijig witnesses will 
 not atl'eet the validity of the devise : Thoipe v. Restwick (IHSI ) (i (,).R.l). 31 I. 
 The attestation of a codicil 1>\ a legatee \\ ill not atl'eet a lic(piest to him \nider 
 the will, although the coilicil levokcs oilier lieipicsts. and therefore indirectly 
 henelits him ; (iwine\- v. (Jwinev (IH.m) 3 Drew. 20.S : Tempest v. Tempest 
 (IS.-)()) 2 K. & .1. ()3.'. ; He Marcus, .Marcus v. .Marcus (188S) ", L.T. 3!»!) ; 
 l)einu' V. Wood (l,S2(i).4 L..J.().iS. .">7. i!ut where a witness to a codicil was 
 interested under a |)arol triist In which the ))roperty was to he ap])lied as 
 recpiested hy the testatrix, hei' interest as one of tlie olijects of the trust in 
 the property lie()iicathed hy the codiiil failed ; Re Fleetwood (LSSO) 15 Ch.l). 
 .")!I4. Only lieueticial devises or heipu'sts fail. While a legacy was given " to 
 l!rom])ton t'huich, to he disposed of as Dr. Irons (one of the witnesses) wishes" 
 it was good ; (,'resswell v. Ciesswell (iHliS) L.H. (i Kip (i((. 
 
 Where a life interest fails owing to the life tenant or his wife heing a wit 
 ness, the remaindermen, if in existence, take immediatt^ly : Re Clark. Clark 
 V. Randall (188t)) 31 Cli. D. 72; hut if not in existence tlie life interest must 
 he treated as midisposed of initil the rcmaindermiMi come into existence ; Re 
 Townseud, Tow Tisend v. 'I'ownsend (I8S7134 (,'h.l). .3.")7. 
 
 Revocation by Marriage. Kvery will of a man who died lietween 31st 
 Decemhei', ISliS, and 1.3th .April. 1.S07, thougli made in contemplation of nuir- 
 riage, was re\okeil l)y mai'riage. unless it was in exercise of a jHiwer of 
 appointment over pioperty in which the testator's estate had no interest in 
 default of apiiointment : Re Cadywohl (18.">8| I Sw. & T. .34. Section 20(</) (/i) 
 now preserves wills expressly stated to lie made in contemplation of nnirriage, 
 and .ilso ciiahles dispositions in favor of intended hushands and wives to he 
 etlectually made. A will valid at the time of execution, and not levoked hy 
 marriage according to the law of the testatoi's domicile at the time of the 
 marriage, is not invalidated hy a sul)sei|uent change of domicile : Re Reid 
 (I8()(>) L.H. 1 1'. & 1). 74. To ett'ect a revocation hv marriage the marriage 
 must he valid ; .Mette v. Mctte (18.")«) I Sw. iS: T.'4I() : Warter v. Warter 
 (1890) I.-. IM). 1.V2. 
 
 Where the will is in exercise of a power of iippoiutmeut, and the pro|>ei'ty 
 wouhl, in default of appointment, pa.ss \nidcr the settlement, the will is not 
 revoked, althougli the [lersons who take in default of appointment are the 
 same as wo\ihl have taken on an intestacy under the Statute of Distrihutions ; 
 Re Fit/.roy (18.58) I Sw. k T. 1.33; Re' Fenwiek (1807) L.H. I P. & 1). 319. 
 Ami where the property is, in default of appointnuMit, to devolve on the per- 
 son or persons who on the decease of the testator should he her next of kin, 
 the will is within the exce|(tion contained in .s. 20 (c) and is not revoked ; Re 
 MoViear (18(i9) L.H. 1 1'. & D. ()7I ; Re Worthington (1872) 20 W R. 260. 
 Where there are mutual wills, the revocation of one hy marriage does not 
 revoke the other ; Hinckley v. Simmons (1798) 4 Ves. KiO. 
 
WILLS. 
 
 653 
 
 Where tlie will comiiiiHeH pi(i|Kity miiIiJimI to a jxiwor ;im<I <nht'i' j)i()|ii'ity 
 which heloiigH al)S(iluU'l_v to tho U'statcir, the eXfOilion <if the jniwer rcnuiiiiH 
 g(KMl iiotwithstaiiiliiig the iiiai riage, and limited adiiiiiiifitratiun will be granted ; 
 KeRuHNelKISlK)) If) IM). 111. 
 
 Revocation by Another Will. An e.xpress clause of revocation in a Muhse- 
 (|Uent will, of cour.se, revokes it tornier wilt, if the .sutise(|uent will in ilnly 
 exeeuted ; He Parker (IHTIl) •2>\<it: 38!! ; O'Neill v. Owen (ISSfl) 17 O.K. .Vir). 
 
 A MuliHi'([uent will also revokes a prior one, to thi' extent of its inconsi.stency 
 therewith. Several testaiuentai-v papers may, however, he admitted to pro- 
 hate a.s one will, although each is desirified as the /k"! will and testament ; 
 (."utto v. Oilhert |lS.")4)il .Moo. I'.C. l.'ll : Freeman v. Freeman (l.S.">4) ."i. I). M. 
 h (i. T'H. Ihit ill construing two documents of ditl'eieiit dates, tlie use of the 
 phru.su " /'iv' will and testament" in the later one is of value in determining 
 whether that will i.s so inionsistent a« to revoke the prior one ; I'lciit v v. West 
 (1S,V2) l(i Heiiv. \7X 
 
 Revocation by Burning. Singeing the cover is insufhcicnt : Due d. Heed v. 
 Harris (IS;{7l t) A. it K. 'idll. Hut a slight hurning or even singeing of the 
 will it.self is, perhaps, suttieienl, e.g., if the testator threw the will on the Kie 
 and, without his knowledge, someone save<l it; Hihh v. 'I'liomas ( 1776)'-^ W', Bl. 
 1 1 (43. 
 
 Revocation by Tearing. Krasing the signatme with a knife is a suliieient 
 tcaiing: lie .Morton (I.SS7) I'J I'.l). 141. and so n fortiori is tearing oil' the 
 signature ; Doe d. Crooks y. ('iimmings ( IS.")(II IJ I'.C. K. 'M\'t ; Hnlilis v. Knight 
 (18;J8) 1 Curt. 7(iH : Ke Lewis llSoS) 1 Sw. k T. .'11 ; .Mavnesv. Ha/.leton (IHHI) 
 44 L.T. oSd: or even the seal: Price v. Price (1H">8)"3 H. & N. 341. But 
 teoring hy the testator in a lit of anger and afterwarrls putting the pieee.s 
 tof'ther as well as he couhl will not etlect a revocation: Ke CoUierg ( 1.S41 > 
 'Z Uurt. S3'J, {J\itting out a particular clause is revocation iiro laiiln ; Re 
 Cooke (18471 "> N.C. 3!)n : He Woodward (1871) L. H. 2 P. & D. ^(Ki ; He .Malev 
 (1887) 1-2 P.I). 134 : Re Leach (1800) (13 L T. 111. Cutting oil' the names of 
 tile witnesses is sufli(Meiit : Kvans v. Dallow (18(»2) 31 L..J.P. 128; hut see Re 
 Wheeler (1880) 4!l L.J. P. 2il ; and so is cutting oil' signatures placed at the 
 end of the first live sheets, and slrikiiig a pen through the last signature, with 
 the word '•cancelled'' followed liy the testator's initials: He Harris (18(14) 
 3 Sw. & T. 48"). 'I'earinga later w ill with tlie intention, declared suhsei(Uently, 
 of reviving a prior one, will he an cH'ective revocation to prevent prohate 
 heing granted of the mutilateil will; He Weston (18G!I| L. H. 1 1'. k 1). 03:1. 
 Where the name of an attesting witness was era.sed and another name iri.serted 
 hut the will was not reexecufed, prohate was granted of the will in its orig'iial 
 condition ; Re (irecnwood (1892) P. 7. 
 
 Revocation by "Otherwise Destroying. " The phiase "otherwise destroy- 
 ing" in .s. 22 is to he read tiHfJii.si/.iiii i/inirit with tlie modes liefore mentioned. 
 There must he a destructi(Hi of the suhstance or contents of the will, or a 
 complete ef cenu.'iit of the wiiting, as hv pasting over it a blank paper ; Re 
 Horsford (1874) L.R. 3 P. & I). 21 1. 
 
 If the will he executed in du|)Heate, the destruction of one part aitiino 
 re.ronuidi is a revocation, hut evidence of declarations of the testator of the 
 destruction is inadniissihie : Atkinson v. Morris (18(17) P. 40, 
 
 Destruction must be Authorized by Testator. A destruction of a will with- 
 out the authoritv of the testator, though in his presence, is not a revocation ; 
 Mills v. .Millward (188!t) l.'i P.I). 20; and it i.s douhtful whether a .suh.se(|uent 
 ratification of the act wouhl he eipiivalent to destruction hy his authority ; ih. 
 Of course, destruction of the will after death of the testator is not a revoca- 
 tion, and such destruction will not j)revent prohate heing granted of such i)art 
 of the will as can he recovered oi' otherwise proved; Re Leigh (18!)2) P. 82. 
 The de.struction, when authori/.ed, must he in the presence of the testator ; 
 He Tohey (187.-)) )> P.R. 272 ; O'Neill v. Owen (1889) 17 O.R. 52.i. 
 
 Revocation by Obliteration. 'J'he Statute of Fraiuls s. (i. allowed a will or a 
 portion thereof to be ol)literated hy the testator himself, or hy some one in hi.s 
 presence, and hy his directions and consent. Now an obliteiation is ineffec- 
 tual unless signed by the test.itor, and attested by the witnesses in the manner 
 prescribed liy s. 23, or unless the words or eti'ect of the will before such oblitera- 
 tion are not appaient. (ilas.ses may be used to discover what words were 
 attempted tone obliterated; Cheese v. Lovejoy (1877) 2 P.I). 201, but not 
 I'hemicals ; nor will pieces of pa|)er pasted comjjletely over a beiiuest be 
 removed ; Re Horsford (1874) L.R. 3 P. * 1), 211 ; but if pasted only over the 
 
 ' 
 
664 
 
 wir.Ls. 
 
 I 
 
 C 
 
 < 
 
 r 
 
 £ 
 
 r 
 
 Hlllouiit of till l>c(|Ui'st, Ifiiviiig t ':»■ iiiinic of the li'giilrc ii|i|iiUfiit, tlic cciiiit. 
 tiiiiy infer tlmt tin- Ihti'iitioii witH to siiKstiliitc iiiintlii'r iiiiinunt. and will apply 
 the fliMtrinc i>f dipfiidi'iit ii'lativi" rcvncatidii, and will oidif tlic piecfs to lie 
 removcrl, and will ^ivi- flVect to the orij^inal wurds ; //<. 
 
 Revocation by Caucellation. Thf Statntc of Fniudu m. (i, also allow<'d a can- 
 cellat loii ill the s.iiiii' niannci' as an oliliteration. Iiiit thi> piescnt Htututc by s. 
 2.'J, prt'si lilies similar foi iiialities for a ciiik cllation to those just noticed. I'l-o- 
 liate will he granted of a will in its original shape though a |ien has iieeii diiiwii 
 through everv part including the signatures; Stephens v. 'raprell (IH40) vJ 
 Curt. 4.'>S. fte Farv (ls.-)l) 1.-) .lur. 1114 ; Shaw v. Thome (IS4li) 4 iN.C. (>4!» ; 
 Ro Brewster (lS(M»)-»tl...l. P. (i!t; unless 
 and attested. 
 
 Alterations. \Vi 
 
 CSS the cancellation is properly HJgned 
 
 hi re an 
 
 dtei'ation appeals in a will, it nnist lie |iroved that 
 
 he sanction of the testator ; 
 
 ■c(IHr>(»)T .\Ioo. !'.(,". ;{2(). 
 
 le signed and attested in 
 
 "itir. ;w;<. 
 
 .. caiieelling is done 
 
 with 
 
 the alteraiioii was made liefore execution and hai' 
 Field V. Livingston I IH(i7) 17 CI*. I.'i ; ( iic\ ille \- 
 
 If alterations are iii.ule aftei execution, they 
 the same manner as a will : .Smith v. .Merriani 
 
 Dependent Relative Revocation. When- the a< . 
 reference to another act, iiie^Mit to he an etVectual disposition, it will ho a revii 
 cation or not, according as the relative act is etticaeious or not ; O'N'eill v. 
 Owen (IHM9) 17 O.K. ."li"). If the iiicaning of the testator in destroying a will 
 i« "As I have made a fresh will, my old one may now he destroyed" the old 
 will is not revoked if the new one lii> not in fact made ; Dancer v. C'rahh ( IM7H) 
 L. R. 3 1'. Hi I). '.tH, and cancellation under mistake of law seems to he eijually 
 inetlicacitms ; I'errott v. I'crrott (LSI I) 14 Kast at ji. 44(t. Destruction of a 
 will with the intention of making a clear copv is not a revocation ; Re To/.er 
 US4'2) 2 N.C. II ; Re Kennett (l.Sti;{)'2 N.R. 4(11 ; Re Apph'l.ee(lH28) I Hagg. 
 143. 
 
 Revival- .\ will which has liecn destroyed cannot he revived ; Hale v. 
 Tokelove I IS.-)ll) ■> R.ih. Kcc. MIS ;. Newton v. Newton (ISdl) II' Ir. Cli. 118; 
 K()ger.s V. (;< odenougli (ISIVJ) '2 Sw. it T. M4'2. S. 24 was designed to do away 
 wiUi the revival of wills hy implication. An intention to re\ ive must apiiear 
 on the face of the codicil, which is relied upon as reviving a rexoked will either 
 (1) hy express words referring to the will as revoked, and imiiorting an inten- 
 tion to rev'-e the same; or (2) hy a disposition of the testator's proiierty 
 inconsistent with any other intention : or (!t) hy .soii.e other expression con- 
 veying to the mind of the Court, with rcasonahle ecrtaintv, tlie existence of 
 the intention to revive: Re Steele (IStiS) L.R. 1 P. & I). o7."> ; Macdonell v. 
 Pureell ( 1894) 23 S. C. R. IMl. Where a testatiu- made a will in l8iN». and 
 revoked it hy another will in .laiiuary, IHKI, and in March, 18(11, he made a 
 codicil, in which after stating that •• f will and devise that the following Ixj 
 taken as a co<lieil to my will of 14th May, 1890," he appointed an executor in 
 pla(* of an executor named in the w U, it was held that the codicil wa.s in.suf- 
 ficient to revive the will of 189(1: Mai-doncll v. Pureell (1894) 23 S.C.R. 101; 
 see also per Hagarty, C.J.O., Pureell v. Bergin (1893) 20 A.R. ")3.-). To the 
 same effect is Re Turner (1891) ti4 L.T. 80.'). 
 
 Where a will has heeii partly revoked l»y codicil, and is afterwards wholly 
 revoked, a. revival of the will will generally set up the will snhject to. and as 
 varied hv, the codicils which iiartiallv revoked it : C'roshie v. Macdonal (1799) 
 4 Yes. (ilO, 9 R.k. Itil ; (ireeii v. Tiihe (1878) 9 Cli. D. 231 : Re t'arritt ( 1892) 
 6(! L. T. 379, unlcs.s an intention to the contrary is shewn liy the words of the 
 reviving codicil, and the surrounding circumstances as in .M< [..cod v. McNah 
 (1891) A. C. 471. 
 
 Where there was a will with several codicils prc])areil hy one solicitor, and 
 a suhscijiieiit will together with two codicils referring to it, which codicils 
 were siilisei|uent in date (o the first ' '"."., the second w ill and codicils were 
 admitted to probate ; Re Courtemiv (1891) 27 L.R. Ir. 007 : .see also Re Lewi.s 
 (1801) 7. lur. N.S. 220; Re Van Cutseni (1890) ()3 L.T. 2r)2. 
 
 Where a will was merely revoked by implication, by an intervening will, ami 
 a codicil was e.xeiMited, purporting to be a codicil to the earlier will, the Court 
 granted probate of the three documents, leaving their interpretation to a court 
 of eimstruction ; Re Stedham (1881) (1 P.I). 20r. ; Re Dyke (1881) (i P. 1). 207 ; 
 Re Chileoot (1897) P. 223, and see Re Kdge (1882) 9 L. R. Jr. riKi. 
 
 Where a legacy of t'lOO is given to an executor, which is increased to faOO 
 by a codicil, and the codicil is then revoked, the gift bv will is not revived ; 
 Boulcott V. Boulcott (18ii3) 2 Drew. 2">. 
 
WILLS. 
 
 665 
 
 (Is i>f the 
 •. McNiil. 
 
 icitor, ami 
 li (•(idiiils 
 
 ili( ils wevo 
 l{c LewJM 
 
 g will, anil 
 the Court 
 to 11 oourt 
 
 1'. 1). -207; 
 
 DealingB with Property by Testator lit'foi')- IKtiO aiiv aliniatinn liy th<> tew- 
 I all II- i)f lam Is ilr vised liy tlu' will fttccti'il a rcviicatii)ii of' tlm (JL'visiM'Vfii tliou^h 
 hi' rc'ai'i|uii • 1 the saiiU'Disuiiii' fici'lmlil rstati' tlirlcin: LiiUKlii'adv. Knott ( IStiH) 
 \H (•■'. :U ; .uid tni'H tlKiugli the alienation weie to the devJHee ; Due il. Nlaish 
 V. Scaihoiiiuyh (lS4!t| .'» i'.C.K. 41111. S. 2."! alters tliiH rule, and a will now 
 musos to a devisee, all the estate of whieli the testator dies seised. If a ti'stator 
 IN lessee at the date of the will, and sul)sei|uently aei|niieH the fee, the de\ iso 
 will cany the fee ; ('o\ v. Bennett (I.StlHi L. It. (I Ki|. 4ih.' ; Struthers v. 
 Stiiithers (lHti4) .") U'.U. Hm . Simlair v, IJrown IISTD) I7<ir. :W;i A eon- 
 tract for sale of land devised liy will will elleit a converHion, and the purehase 
 inonev will eonstitnte part of the personal estate ; Farrar v. Winterton (l''**2) 
 .-. lieav. 1; .Moor v. KaiHlKJck (1S41) I'J Sim. \>:i : l{..ss v. Uohs (1873) -JO 
 
 (Jr. -J^y.i. 
 
 Will to Speak from Death. After aeipnreil lands would n:)t pa.sH uiidernwill 
 of a testator dying l.efore IS(1!»: I'lund. v. Mctiannon (1S72):W U.C.R. S: 
 
 4.'{(1, l.S (ir. 4;i(i '{"he will now speaks 
 to the property luinprised in it, and not 
 : Vioh'tt V. Hrooknian (lM.-(7r-'(i L..T. ( h. 
 
 .\I. it (J. •>H;i : Lan«dale v. Hriggs (Is.-.(i) 
 
 Whatoley v Whateley (I.S(17) 14 (ir. 
 from ileath. ut only with refereme 
 with referei to the olijeets of gift 
 :WH: BiiUoi Bennett (l«.V.)7l). 
 
 H I). .M. &(i. ^. 
 
 Where a tesi ■■ devises t. his wife all the leniainder of his real estate, and 
 then proieeils t.. lurnerate the lands comprised in sueh reinainiler, after ic- 
 quired lands will not pass ; Croiiihie v. Cooper ( IS77) "24 < Jr. 470; Vansieklc v. 
 Vansickle (IS.S-J) 1 O.K. 107, i» A.M. .S.VJ. And where a testator ileviseii his 
 property on H street to A. and the Tcsidue of liis estate at the time of liisdeith 
 to B, and suhseipiently aciniired olhei- property on H street, it was held that 
 the will showed sullieiently a contiary intention within s. 2(i, that the will 
 shoidd not speak from death as to the puipertv on H street ; Morrison v. Mor- 
 rison (IHS.-)) !t O.H. 223, Id O.K. 'Mi. 
 
 Where the devise or lieipiest is s])ecilic as " luv ring" or " my liorse '" after 
 ac<(uired ])roperty will not pass, hut H here it is of that which is generic, of that 
 which may l)e increased or- diminished, something more is reipiired on the face 
 of the will for the pin-pose of indicating a " contrary intention " -that after 
 acquired property answeiing the description shall not pass ; (ioodland v. J5ur- 
 nett (lH."i")) I K. & J. :141 : Ca.stle v. Kox (1S7I| L.R, 11 Kii. ri42 ; Strevens v. 
 lUvlev (18,-i,S) S Ir. C. L. K. 410 : He Oticv and Ilklev Ky. Co. (ISO,-)) :U Beav. 
 .".25. 
 
 Where a testator released dehts due liy his .son •'and all other moneys due 
 from him to me" the release was held to extend to moneys snlisequently 
 advam-ed: Kverett v. Kverett (1S77| 7 Ch. I). 42«. 
 
 Where the testatoi- uses the words "now vested in me " as to part of lii.s 
 j)ropei-ty, and as to othei- paits refers to sudi premises as shall he vested in me 
 at mv death, the word " no-.« " will lie const rued to refer to the date of the will ; 
 ('ole'v. SScott (1H48) 1(> ,Sim. 2,")!». 1 Mac-, it C. "dS. Imt see, Lilford v. Keck 
 (18(52) 30 Beav, .SOO. 
 
 It is not iieces.sarv that the con'rarv intention should he ox))re.s.sed in so 
 many words ; Cole V. .Scott (1848) Ki' Sim. 2.")!), 1 Mag. & (i. .■)18. But the 
 word •' now'" will geneiallv he insutlicient to show such contrary intention ; 
 Hei>hurn v. Skirving ( l,8,-.8) 4 .lur. X.S. (i.ll : Wagstaffe v. Wag'.statie (18(i9) 
 L.H. S Kq. 22!l; He Champion, Dudley v. Champion (I8ii;?) 1 Ch. 101. 
 
 Lapse ot Devise of Real Estate. Formerly devises whi(-h lapsed hy reason of 
 the death of the devi.see hefoie the testator, or heeause they were illegal, 
 enured to the lienetit of the heir as on an intestacy ; Jones v. Mit(-hell (18'2.'<) 
 1 Sim. & St. 2!tO; Hutcheson v. HammoMd (I7!)0") 3 B. C. (J. 128; Smithy. 
 Lomas (I8ti4) V> W.R. !l4i>. N'ow they fall into the residue ; Oreeu v. Dunn 
 (18.");")) 20 Beav. (i ; Cogswell v. Armstrong (LS")")) 2 K. & .1. 227. 
 
 S. 27 applies however only to devises of real estate or interest.s therein, 
 where there is an operative residuary devi.se. 
 
 It does not apply to cases where the gift of a sum charged on the <levisert 
 land fails either l>v death or hy the contiiigencey ujxin which it is given not 
 happening : Tucks v. Kayess (■l8.)8) 4 K. & .1. im ; Sutclilie v. Cole (185.'!) 3 
 Drew. 13;-.. 
 
 It wa:* held in Freme v. Clement (1881) IS Ch. D. 499 that where a testator 
 made a will operating as an exercise of a special jxiwer of appointment limite<l 
 to his chihireii the residuary devisee (heing an object of the power) wouhl take 
 
C5() 
 
 WILLS. 
 
 i 
 
 propertj' comprised in an nppointnient wliiol\ passed by tlio death (if the- 
 a|)poiiitee, but the reasoning of tliis decision was lisiijJiHoved in Holjland v. 
 Lewin (18S4) '20 Cli. 1). 26(). 
 
 Qeneral Devise may Include Leaseholds. Heforc s. 2N a general devise of 
 lands would include leaseholds f ^liere were no freeiiold lands to answer the 
 ileseription ; Hose v. Bartlett (!u;j;l) Cro. Cai'. "293, even though deserilied an 
 freehold ; Uav v. Trig (171.')) 1 P.W. -iSti ; Doe d. Duiniing v. (hanstown (l.S40> 
 7 M. & W. 1 ; Nelson v. Hopkins (IS.j-i) '21 L.J. C'h. 410. The elTect of s. -28 
 is that leasehohls will pass under a general devise of lands at a iiartieuh;! 
 place unless a contrarv intention appears on the will : Wilson v. Kden (lHiV2) 
 IH Q.I5. 474, l(i Beav.' loS ; Moase v. White (1«76) .S Ch. I). 703 ; Matthews v. 
 Matthews (lS(i7) L. R. 4 Kii. '278; (ireenwell v. Davison ( 1SS8) oS L.T. :!IU. 
 liut a mere general devise of real estate will not include leaseholds ; Huthr v. 
 IJutler (1884) '28 Ch. I). (iG, unless there are no freeholds ; Nelson v. l-[o|ikins. 
 (I8.j'2) 21 L.J. Ch. 410. If there is suHicient on the face of tlie will to satisfy 
 a reasonable man that the intention of tlie testator was not by tlic wor.l 
 " lands'" to pass leasehold estates, the .same will not pass l)y tlic devise ; j'rcs- 
 cott v. Barker (1874) L.R. il ('h. 174. 
 
 Powers of Appointment. A general power to appoint property in any man- 
 ner tlie testator maj- think ]U'oper will be executed by a general devise ur 
 be(|uest unless a contrarv intention appears ; Re Spoonci' (18.")1) '2 Sim. N. S. 
 12!) ; Clillbrd v. CliHor(l"(18.-)l ) !> Hare 07") ; Atty.-CJen. v. ISrackenburv (I8(i3) 
 1 H. & C. 782 ; Re Jones, (Jreene v. (ionhni (1887) 34 Cli. I). Go, even 'if made 
 before tlie instrument creating the power ; Patch v. Shore (1864) 2 Dr. it Sni. 
 ,58it : Hrwison v. Dancer (1808 10 W. R. li' 1 : and although the ) ower wa.s 
 created bv the testator him.self subsecpiently to the will ; Roves v. v'ook (l^!^'^)' 
 14Ch. D.'.-)3; Re Hermando, Hermando v. Sawtcll (1884)" '27 < 'h. D. 284; 
 Airey v. Bower (1887) 12 A|)p. Cas. '2()3. The contrary intention rn\ist l>e 
 found in the will, and not inferred from <'ircumstan(,es : Hoyes v. Cook ( IM.SO) 
 14 Ch. D. ")3, l)nt it may be found on the <()m])arison of two siu;cessive wills ; 
 I'ettinger v. Ambler (1805) L. R. 1 Kij. ."ilO ; or from the fact that the be()Uest 
 is of personal estate " not otherwise efl'ectually disposed of " ; Moss v. Harter 
 (1854) 2 Sui. & (J. 458. If the testator refers to a power diH'erent from the one 
 jmssessed at hi.s death, a contrary intention will be presumed ; Thompson v. 
 Simpson (1881) 44 L. T. 710. 
 
 Sec. •2!l does not extend to special or limited powers : Re Williams, Foulkes 
 V. Williams (188!)) 42 Cli. D. !)3 ; e.g. a power to appoint to anv one except 
 A. ; Re Bryon, Williams v. Miti:hell (18i)l) 3 Cli. 474, except perhaps after A',s 
 death ; ih. The section extends however to a power exercLsable onlv 
 by will ; Re Powell (187(1) 18 W. R. '2'2H. Where the power reipiires the will 
 to refer to the power the sc<:tion lias no aiipli<'ation ; Philliiis v. Cavlcv ( I88!t) 
 43 Ch. D. -I-'-'. ' ' 
 
 Devise passes whole Estate. Tlie Canadian Statute 4 Will. IV., c. 1, s, 50, 
 was sulistantially to the same effect ass. 30. A devise over in the event cif 
 intestacy does not show a contrary intention : Farrell v. Farrell (1807) "20 l". 
 C. R. 05'2 ; nor does the fact that words of inheritance follow some devises and 
 not others; Wis<len v. Wisden (1854) 2 Sni. ife (J. 390. A <levise to two as 
 joint tenants for life with jiower to them to .sell for life followed by a direction 
 that the survivor should take the proj)erty given to the other, gives to the 
 survivor a fee ; Cliellew v. Martin (1873) 21 W. R. 071. Where a devise 
 couhl not come into existence unless a prior devise in the same will was con- 
 strued as a life estate, a sullicient contrarv intention was held to appeal' : 
 (iravenor V. Watkins (1871) L. R. C. P. 500. A devise to A. and B. a.>< 
 joint tenants and to the survivor of them, his heirs and assigns will be con- 
 strued as a dcvi.se to them for life with a contingent remainder in fee to the 
 survivor ; (,»uarm v. Qearm (18<)2) I i). B. 184. 
 
 Meaning of " Heirs." In a will made after primogeniture was abolished, a 
 devise on certain contingencies to " the heirs" of a named jierson will include 
 all liis brothi'fs and sisters and not his eldest brothei' only ; Sparks v. WoIH' 
 (18!I8) -i'l A. K. 3-20 : •>'.) S. C. R. 585. 
 
 "Die without Issue." Before 1874 an effect was given to a devise after the 
 death of one to whom an I'tlntr for /ij'i- was given if he should die witliout 
 issue. /'n'»i(( _/f((i' thesi' W(U'(ls meant "on an indefinite failure of issue." 
 and were exactly ecpiivalciit to " on the extinction of the heirs of his 
 body." .Sui^h a devise was hehl by implication to express an intenticai that th(> 
 heirs of the body of the devisee sluuild lakis Tliey could not take as juir- 
 ehasers anil tlierefore the words were construed as words of limitation and 
 
 'm 
 
1, s. 50, 
 
 I'Vl'Ilt lif 
 
 17) -Jii r. 
 
 vines and 
 
 to t\vi) as 
 
 iiivctimi 
 
 us ti> the 
 
 I devis(^ 
 
 I was oon- 
 
 iipix-'ur : 
 
 11(1 15. as 
 
 ill lie uoii- 
 
 tii tla- 
 
 \VILLS. 
 
 gave the devisee for life an estate tail. But if there was enough on the face of 
 the will to show that the words "die without issue" did not mean "on an 
 indefinite failure of issue," but were by the context or other legitimate grounds 
 of construction shewn to have been used as meaning " if no such issue shall be 
 born " or " never having had issue "or " die without leaving issue living at his 
 death," the will might be construed according to the meaning. The presumption 
 was agaiiiji, such a construction, but it was only a presumption which might 
 be rebutted ; Bowen v. Lewis (1884) 9 App. (as. 907, 917, 925. While there 
 was authority for expanding a life estate into an estate tail in order to provide 
 for heirs of the body, there was no authority for expanding it into a fee simple; 
 Coltsniann v. Coltsinann (18(18) L. R. 3 H. L. 121. 
 
 Where a devise made in 1842 was to A, anrl in case of his dying without 
 issue thf! property was to be sold by the executors, it was held that the event 
 contemplated was a failui'e of i-ssue at A's death ; Chisholm v. Emery (1871) 18 
 (Jr. 4()7, 17 ('r. 403, and so where the j)ropci'ty was to be divided c(pialh' 
 among the siuvivors ; (y'rawford v. Broddy (1890) 2(i fS. C. R. 345, see also(jiruy 
 V. Richford (1878) 2 «. C. R. 431 ; Forsvth v. (ialt (1871) 22 C. R 115, 21 0. 
 P. 408; Stinson v. Stinson (1874)21 Or. llO ; Dale v. McCiuinn (1858) 15 Or. 
 101 ; Little v. Billings (1880) 27 Or. .3.53; Tyrwhitt v. Dcni.son (1880) 28 Or. 
 112 ; 8cott V. Duncan (1881) 29 Or. 49(). In tlieabsenoeof a contrary intention 
 the tir.st taker will now take an estate in fee with an executory devise over ; 
 (Jowan v. Allen (189(i) 2f) S. (J. R. 292. S. 32 is con(ine<l to the ex])res.sions 
 mentioned tliercin and lias no application to cases where the expression is •' die 
 without heirs of the body "' ; Da-v.son v. Small (1874) L. R. 9 Cli. ()51 ; Re Sal- 
 lery (IS(il) II Ir. C'li. R. 2.3(5, nor to cases where the expression is combined 
 with other woi-ds such as " dying under 21 "; Morris v. Alorris (1853) 17 Beav. 
 198. 
 
 DeviEe to Trustees. S. .34 is pi-obably anotlier drafting of s. .33. The real 
 history of the two sections is that they arc two drafts dealing with the same 
 subject, though liolli remain in the act of Parliament ; Per .lesscl M. R., Frenie 
 V. Clement (18S1) 18 Oh. D. 514. Tiu.stee.s have been held to take an estate in 
 fee from having a power of leasing ; Re Kddel (1871) I... R. 11 Eo. 559, and a 
 power of maintenance; Berry v. Berry (187.3) 7 (!h. I). 057, and from being 
 directed to jiay debts : Marshall v. (iingcU (1882) 21 Ch. D. 7iK). 
 
 Death of Beneficiary. Ordinarily when a beneticiai-y predeceases the testator 
 tlie flevise or bc(iuest to liim will lapsi^ Sections .35 and 30 introduce, however, 
 a Hctitious survivorship (1) when the devise is of an estate tail .iid the devisee 
 leaves issue who would be inheritable under the I'ntail (2) w hen the devise or 
 bequest is to a child or other issue absolutely or for more than a life interest 
 and he dies leaving issue. 
 
 The following points have been established with reference to devises and 
 i)C(|uests to issue. 
 
 (1) The property is tijated as if it had belongeil to the beneficiary and 
 therefore disposable by his will ; .Johnson v. .rohnson (1854) 3 Hare 1.57 ; Re 
 Mason (1805) 13 W. R. 799 ; but it is so treated only for the purpose of pi-e- 
 venting a lapse and not forany otiier purpose, e. g. to render the ju'operty sub- 
 ject to a covenant by tlie beneficiary to settle after iiecpiiiiMl ])ii>iiertv ; Pearce 
 V. (Jraham (1803) 32' L. .J. (."h. .3.59. ' 
 
 (2) The lictitious survivoisliip will be given eflect to though the issue of 
 the testator may have died before the date of the will ; Mower v. Orr 
 (1849) 7 Hare 473 ; Harkwoith v. Young (1857) 4 Drew. 1 ; Wisden v. Wisdeii 
 (1854) 2 Sm. & O. 390. 
 
 (3) It is not necessary that the issue living at the death of the tescator 
 should be the .same issue as were living at the death of tlie beneliciarv ; Re 
 l'arkeiil802) 1 Sw. .t T. 523. 
 
 (4) The husbaiiil of a deceased benetictiary will lie tenant by the curtesy of 
 any real propeity devised to his wife of which he would have been such tenant 
 if she had owned the property at her death ; Eager v Furnivall (1881) 17 Ch. 
 I). 11.5. 
 
 (5) S. .30 does not apjily wlici'c the devi.se or bequest is to the testator's 
 ihildren a;wi class ; Browne v. Hammond (1858) .Johns, 21(1 ; Olnej' v. Bates 
 (18,55) 3 l)r(!W. 319. even though the ('lass consist of but one jjcrson ; Re 
 Harvey, Harvey v. (Jillow (18(13) 1 Ch. .W, but where money was to be 
 divided e(|ually among " my nine children " the gift was coustnied to be a 
 I'ift to persons ilesignated and not to a class and the rej)re8entativo of a 
 deceased child who left issue was he! 1 to be entitled to his share ; Re Stans- 
 ticld, Stansfiehl v. Stanafield (1880) 15 Ch. I). 84. 
 
 Rl 
 
 657 
 
f 
 
 658 
 
 WILLS. 
 
 c 
 
 if 
 
 £ 
 
 r 
 35 
 
 3 
 
 (6) Wliero tlio gift is to (•hildren living at the testators' death, section 3ft 
 has no application ; Fullford v. Fullford (1852) 16 Keav. 565. 
 
 (7) The issiio must he legitimate ; Hargraft v. Kecgan (1885) 10 O. K. 272. 
 
 (8) Wliere a will directed that the sliaie of a daughter of the testator 
 should he paid to the trustees of her uiarriage settlement if she survived him 
 it was held that under s. 36 she must be deemed to have survivi^d for all the 
 purposes of tlie will and that the trustees were entitled though she pre- 
 deceased the testator ; Re Howe's Trusts (1S83) 22 Uh. D. 663. 
 
 (9) Tlie child must bo deemed for tlie purpo.ses of the will to have pre- 
 deceased the parent, so that a devise by the child to his parent which would 
 by force of the section have carried tlie property liack to tlie parent will be 
 construed to lias'e lapsed ; Re Hcn.sler, .fimes v. Henslcr (1881) lit Cli. 1). 612. 
 
 (10) The representative of tlie deceased child stands in the same position 
 qnonil the estate as he himself would have done ; Pickersgill v. Rodger (1876) 
 5 Ch. 1). 163. 
 
 Locke King's Act. Section 37 (1) (2) is commonly known as Locke King's 
 Act. S. 37 (3) is taken from 40 & 41 V. c. .34. 'I'lie latter act has been held 
 to extend to leaseholds by virtue of the words " land or other liereditaments 
 of wha/ever tenure" Drake v. Kershaw (1888) 37 Ch. 1). 874. The words " real 
 estate" in s. 37 must receive the same construction by virtue of s. 9 (2) and in 
 view of s. 9 (4) s. .37 (3) was probably unnecessary ; see Hroadbent v. (iroves 
 (1883) 24 Ch. 1). 100. The object of the section is to tlirow tlie mortgage debt 
 on the mortgaged property ; (loodwin v Lee (18,54) 1 K. & J. 378 ; .Swainson 
 V. Swainson (1857) fi I). M. & (t. 652. An equitable mortgage is within tlie 
 the sections; Pembroke v. Friend ( 18.59)1 J. & H. 132: Colebv v. Coleby 
 (1865) L. R. 2 K(i. 803 ; Davis v. Davis (1876) 24 W. R. 962. Where lands 
 had been delivered in execution under a writ of elegit, the cliarge created by 
 the judgment was licld to be a mortgage under the section; Re. -Vnthony, Anthony 
 V. Anthony (1892) 21 Ch.450. 'i'lic lands nnist however be specifically cliarge(l, 
 not subject merely to a general lien ; Diinlo)) v. Dunlop (1882) 21 Cli. D. ,583, 
 .590. The section will apply though tlie land be in a foreign country ; .Smith 
 V. Moreton (1868) 37 L. J. Ch. 6. An amount payable to a lessee by his lessor 
 as the puruhase money of ground rents of houses built bv the les.see is a 
 vendor 8 lien within 8.9(4). Re Kidd, i5rooman v. Wi'thall (1894) 3 Ch. 
 558. The Devolution of I'jstates Act does not supersede but is to be rea<l in 
 conjunction with ss. 37 & 38 ; Mason v. Mason (1887) 13 0. R. 725. Section 
 37 does not apply to an estate tail and the mortgagor's general estate will 
 therefore be liable to pay an encumbrance created by him on entailed lands; Re 
 Anthony, Anthony v. Antliony (lS93)3Ch. 498. TlieCrown is entitled to the bene- 
 fit of the section ; Dacro v. Patrickson (1859) 1 Dr. & Sm. 186. The section 
 does not apply to a mortgage by a partnei- of his own property to secure a 
 partnership debt where tTio ))artncrsliip as.scts are at his death suificient to pay 
 all its debts ; Re Ritson, Ritson v. Ritson (1899) 1 Ch. 128. 
 
 In deciding whether a sutlicicnt contrary intention is shown, each case must 
 rest on its own eircumstaiices ; Rolfe v. I'erry (1863) 3 1). J. & 8. 486. To 
 amount to a contrary intention the direction must distinctly and unmistak- 
 ably refer to the mortgage debt ; Nelson v. I'agc (1868) L. R. 7 K<i. 25; 
 Mason V. Mason (1887) 13 O. R. 726. A devise " free from all encumbrances" 
 is of course sufficient ; Toronto (General Trusts Company v. Irwin (1896) 27 O. 
 R. 491. Where land was specifically devised, and the testatrix liy her will, 
 charged her estate with the payment of all encumbrances ujion such land, the 
 devisee was held to lie entitled to have the encumbrance paid out of the other 
 estate in jiriority to a pecuniary legatee ; Scott v. Suiiple (1893) 23 (). R. ,393, 
 but sec Re Smith, Smith v. Smith (1899) 1 Ch. 36.5. When? ditl'erent portions 
 of the property subject to a mortgage is devised to ditl'erent jicrsons the 
 devisees bear the encumbrance ratably according to the value of their respective 
 ])ortions ; Newmarch v. Storr (1878) 9 ('h. I). 17, althcmgh some jiortions pass 
 under .specific devises and another un<ler a rcsiiluary devise ; (iibl)ins v. Kvden 
 (18(i9) L. R. 7 Kil, 375 ; Saekville v. Smyth (1874) L. R. 17 K<|. 153, and where 
 a portion of the jiroperty is exonerated from the nuirtgage the devisee of the 
 remainder will be charged only with his ratable proportion ; Toronto (leneral 
 Tru.sts Co. V. Irwin (189<i) 27 O. R. 491. 
 
 Where a dec'casc^d person has in his lifetime entered into a contract for the 
 erection of buildings upon his land, the heir-at-law or devisee is entitled to 
 have the buildings comiueted at the expense of the jicrsonal estate ; Cooper v. 
 ■rurman (1866) L. R. 3 Kq. 98 ; Holt v. Holt (1864) 2 H. & M. 118 ; Re Day. 
 Sprake v. Day (1808) 2 Ch. 510. 
 
 ii « 
 
CHAPTER 133. 
 
 An Act respecting the Limitation of Actions relating 
 to Real Property, and the time of Prescription in cer- 
 tain cases. {As amended bii 62 V. c 11, .v. 16.) 
 
 K,l. 
 
 Short Title, s. 1. 
 Interpretation, s. 2. 
 
 COMMENt'EMENT OF AcT AS TO AB- 
 SENTEES, 8. 3. 
 
 Period ok Limitation — ten years 
 
 AFfER RIOHT of ACTION AC- 
 CRUED, 8. 4. 
 
 When rkshts of action deemed to 
 havf. accrued : 
 
 On disposaussioii, s. 5 (I). 
 
 On death, 8. 6(2). 
 
 On alienation, s. f> (3). 
 
 Wild lands, s. 5 (4). 
 
 Rent under lease, s. 5 (ri). 
 
 Tenancy from year to year, s. 6 (fi). 
 
 Tenancy at will, s. 5 (7, 8). 
 
 Forfeiture or breach of condition, 
 s. 5 (*), 10). 
 
 Future estates, s. 5 (10-12). 
 Period of limitation as to certain 
 
 FUTURE estates, S. C). 
 
 Administrator to claim from 
 death of deceased, s. 7. 
 
 Entry not to be deemed posses- 
 sion, s. 8. 
 
 Continual claim not to preserve 
 
 RIOHl-S, 8. 9. 
 
 Descent cast, warranty, etc. , Not 
 
 to bar RlfJftT OF entry OR 
 
 action, 8. 10. 
 Possession of one joint tenant, 
 
 ETC., not to be deemed po.sses- 
 
 sioN of another, h. 11. 
 Possession of relations not to be 
 
 deemed pos.session ofthe heirs, 
 
 8.12. 
 
 Acknowledgment to be equivalent 
 TO possession or receipt of 
 
 RENT, S. 13. 
 
 Receipt of rent to be deemed 
 
 RKCEIPT OF profits, S. 14. 
 
 Right of party out of possession 
 extinguished at the end of 
 the period limited, s, 15. 
 
 Actions for arrears of dower, 
 rent and intere.st to be with- 
 in six years, 88. 10-18. 
 
 Mortgagor out of possession bar- 
 red AITEK TEN YEARS, B. 19. 
 
 Acknowledgments, ss. 20-21. 
 Mortgagee barred after ten 
 
 YEARS, 8. 22. 
 
 Actions for money charged on 
 
 land and legacies, ,ss. 23, 24. 
 Actions for dower, s.s. 25, 2(i. 
 Bah of estates tail, ss. 27-29. 
 Limitation of equitable claims, 
 
 ss. 30-38. 
 Easements : 
 
 Profits A pendrc, s. 34. 
 
 Rights of way, water and other 
 
 oasenieMts, s. 35. 
 Light, s. 3(i. 
 Intorrn|>tions, s. 37. 
 Pleadings in actions claiming ease- 
 
 menta, etc., s8..')8-i!9. 
 Disabilities in cases of, ss. 40-42. 
 Di.sabilities and exceptions : 
 Easements, ss. 40-42. 
 In cases of land or rent, ss. 
 
 43-45. 
 Five years allowed from the termi- 
 nation of (lisability, a. 43. 
 Twenty years tlio utmost allow- 
 ance, 8. 44. 
 No further time for a succession 
 of disabilities, B. 45. 
 
 HER MAJESTY, by and with the advice luid consent of 
 the Lej^islative As.senibly of the Province of Ontario, 
 enacts as follows : — 
 
 [659] 
 
r 
 
 660 
 
 Short title 
 
 Chap. 133. 
 
 LIMITATION OF ACTIONS. 
 
 Sec. 1 
 
 1. This Act may be cited as " The. Real Proj^erty Limitation 
 Act." R.S.O. 1887, c. Ill, s. 1. 
 
 Interpreta- 
 tion. 
 
 c 
 as 
 
 s 
 
 *i. Whertj the follt)wing W(M'ds occur in this Act they shall 
 be construed in tlie maimer hereinafter mentioned, unless a 
 contrary intention appears : — 
 
 "Land." 1. " Land " shall extend to messuages and all other here- 
 
 ditaments, whethei' corporeal or incorporeal, and to money to 
 be laid out in the purchase of land (and to chattels and other 
 personal property transmissible to heirs), and also to any share 
 of the .same heicditaments and jjroperties or any of them, and 
 to any estate of inheritance, or estate for any life or lives, or 
 other estate transmissible to heirs, and to any possibility, right 
 or title of entry oi- action, and any other interest capable of 
 being inherited, and whether the same estates, possibilities, 
 riijhts, titlos and interests, or any of them, are in possession, 
 I'eversion, remainder or contingency ; 
 
 " Assur.ince." 2. " Assurance " shall mean any deed or instrument (other 
 than a will) by which any land may be conveyed or trans- 
 ferred ; and 
 
 " litnt." 3. "Rent" shall extend to all annuities and periodical sums 
 
 of money charired upon or payable out of any land. R. S. O. 
 1887, c. 'ill, s.'2. 
 
 r 
 
 73 
 
 Commence- 
 ment of Act. 
 
 C. S. U. C. c 
 88 ; 32 V. 0. ; 
 8. 22. 
 
 li. This Act shall commence and be deemed to have taken 
 effect, and chapter 88 of the Consolidated Statutes of Upper 
 Canada, and section 22 of the Act passed in the thirty-second 
 year of Her Majesty's reign, and chaptered 7, to have been 
 repealed, on and from the first day of July in the year of our 
 Lord 1877, as respects any person who on and for twelve months 
 continuously after the twenty-first day of December, 1874, 
 resided without this Province, and is a person entitled to make 
 an entry or distress or to bring an action to recover any land 
 or rent ; or so resident, is a mortgagor, or person entitled to 
 redeem within the meaning of .sections 19, 20.or 21 of this 
 Act ; or so resident is a person entitled to, or claiming under 
 a mortgage within the meaning of section 22 ; or so resident 
 is a person entitled to bring an action, or other proceeding 
 within the meaning of section 23 ; or so resident is a person 
 entitled to an action or other pi'oceeding within the meaning 
 of section 24< ; or so resident is a person claiming an estate, 
 interest or riglit, to take effect after or in defeasance of an 
 estate tail within the meaning of section 29 ; or so resident is 
 a person entitled to ilemand dower ; and except as respects the 
 persons, and in the cases, mentioned above in this section, this 
 Act shall be deemed to have commenced and taken eflect and 
 the .said Acts to have been repealed on and from the first day 
 of July, 187G. li. S. O. 1887, c 111, s. 3. 
 
Sec. 5. 
 
 LIMITATION OF ACTIONS. 
 
 Chap. 133. 
 
 661 
 
 LAND OR RENT. 
 
 4. No person shall make an entry or distress, or bring any 
 action to recover any land or rent, but within ten years 
 next after the time at which the right to make such entry or 
 distress, or to bring such action, first accrued to some 
 person through whom he claims ; or if such right did not accrue 
 to any person tlu'ough whom he claims, then within ten years 
 next after the time at which the right to make such entry or 
 distress, or to bring such action, tirst accrued to tlie person 
 making or bringing the same. R. S, 0. 1887, c. Ill, s. 4. 
 
 Nu land or 
 rent to be re- 
 covered but 
 within ten 
 years after tho 
 right of action 
 accrued. 
 Imp. Acts 3-4 
 \Vm. iv. c. 27, 
 8. 2j 37-.^S V. c. 
 57,s. 1. 
 
 5. In the construction of this Act, the right to make an entry when the 
 or distress, or bring an action to recover any land or rent, shall ^'8'>' 4'*'' ^'^ 
 be deemed to have first accrued at such time as hereinafter is have first ao- 
 mentioned ; crued. 
 
 1. Where the jierson claiming such land or rent, or some On diBiioases- 
 person through whom he claims, has, in respect of the estate ''|""' 3.^'"^' 
 or interest claimed, been in possession or in the receipt of iv. c. 27, s. 3. 
 the profits of such land, or in receipt of such rent, and has, 
 
 while entitled thereto, been dispossessed, or has discontinued 
 such possession or receipt, then such right shall be deemed 
 to have first accrued at the time of such dispossession or dis- 
 continuance of possession, or at the last time at which any 
 such profits or rent were or was so received. 
 
 2. Where the person claiming such land or rent claims the t»n death, 
 estate or interest of some deceased person who continued in \v/i\."' ^ '27 
 such possession or receipt, in respect of the same estate or s. 3. 
 interest, until the time of his death, and was the last person 
 entitled to such estate or interest who was in such possession 
 
 or receipt, then such right shall be deemed to have first accrued 
 at the time of such death. 
 
 3. Where the person claiming such land or rent claims in On alienation 
 respect of an estate or interest in possession, granted, appointed w'^V c 27 * 
 or otherwise assured by any instrument other than a will, to k. .i 
 
 him or some person through whom he claims, by a person being 
 in respect of the same estate or intei-est, in the possession or 
 receipt of the profits of the land, or in receipt of the rent, and 
 no person entitled under such instrument has been in possession 
 or receipt, then such right shall be deemed to have first accrued 
 at the time at which the person claiming, as aforesaid, or the 
 person through whom he claims, became entitled to such pos- 
 session or receipt by virtue of such inst. ument. 
 
 4. In the case of lands granted by the Crown of which the As to lands 
 
 " " ■ ■ ' ' " " " not cultivate 
 
 or improved. 
 
 grantee, his heirs or assigns, by themselves, their servants or ""* cultivated 
 
 agents, have not taken actual possession by residing upon or 
 cultivating some portion thereof, and in case some other person 
 not claiming to hold under such grantee has been in possession 
 of such land, such possession having been taken while the land 
 was in a state of nature, then unless it can be shewn that such 
 
r 
 
 662 
 
 Chap. 133. 
 
 LIMITATION OF ACTIONS. 
 
 Sec. 5. 
 
 s 
 
 c 
 
 I 
 
 5 
 
 r 
 
 03 
 90 
 
 S 
 3 
 
 Proviso. 
 
 When rijfht 
 deemed to 
 accrue where 
 rent aimunt- 
 Ing to $4 
 reserved by 
 leaBe in writ- 
 ing han b("4n 
 wrongfully 
 received. 
 Imp. Act, .S-4 
 W. iv. 0. 27, 
 
 8.9. 
 
 grantee or such person claiming under him while entitled to tlie 
 lands had knowledge of the same being in the actual possession 
 of such other person, the lapse of ten years shall not bar the 
 right of such grantee or any person claiming under him to bring 
 an action for the recovery of such land, but the right to bring 
 iin action shall be deemed to have accrued from the time that 
 such knowledge was obtained ; but no such action shall be 
 brought or entry made after twenty years from the time such 
 possession was taken as aforesaid. 
 
 5. Where any person is in possession or in receipt of the 
 profits of any land, or in receipt of any rent by virtue ol a 
 lease in writing, by which a rent amounting to the yearly 
 sum of $4 or upwards is reserved, and the rent reserved 
 by such lease has been received by some person wrong- 
 fully claiming to be entitled to such land or rent in re- 
 version immjdiately expectant on the determination of such 
 lease, and no ))ayment in respect of the rent reserved by such 
 lease has afterwards been made to the person rightfully en- 
 titled iiiereto, the right of the person entitled to such land or 
 rent, subject to «uch lease, or of the person through whom he 
 claims to make an entry or distress, or to bring an action 
 after the determination of such lease, shall be deemed to have 
 first accrued at the time at which the rent reserved by such 
 lease was first so received by the person wrongfully claiming 
 as aforesaid, and no such right shall be deemed to have first 
 accrued upon the determination of such lease to the person 
 rigiitfully entitled. 
 
 6. Where any person is in possession or in receipt of the 
 profits of an}' land, or in receipt of any rent as tenant from 
 year to year or other period, without any lease in writing, the 
 right of the person entitled subject thereto, or of the person 
 through whom he claims, to make an entry or distress, or to 
 bring an action to recover such land or rent, shall be deemed 
 to have first accrued at the determination of the first of such 
 years or other periods, or at the last time when any rent pay- 
 able in respect of such tenancy was received, whichever last 
 happened. 
 
 7. Wheic any jjerson is in pos.session or in receipt of the 
 profits of any land, or in receipt of anj- rent, as tenant at 
 will, the right of the person entitled subject thereto, or of the 
 person through whom he claims, to make an entry or dis- 
 tress, or to bring an action to recover such land or rent, shall 
 be deemed to have first accrued either at the detennination of 
 such tenancy, or at the expiration of one year next after the 
 commencement of such tenancy, at which time such tenancy 
 shall be deemed to have determined. 
 
 giwor"or™fs«Hi ^' ^° mortgagor or cciit\ii q\ie trust shall be deemed to be 
 <]ue trust. a tenant at will within the meaning of the next preceding sub- 
 section to his mortgagee or trustee. 
 
 Ni) person 
 after a tenancy 
 from year to 
 year to have 
 any right but 
 from the end 
 of the first 
 year or last 
 [)ayment of 
 rent. 
 
 Imp. Act, 3-4 
 W. iv. c. 27, 
 e. 8, 
 
 In the case of 
 a tenant at 
 will, the right 
 Hhall be 
 deemed to 
 have accrued 
 at the end of 
 one year. 
 Imp. Act, 3-4 
 W. iv. c. 27, 
 
 H. 7. 
 
Sec. 6 (1). 
 
 LIMITATION OF ACTIONS. 
 
 Chap. 133. 
 
 668 
 
 9. Where the person daiining such land or rent, or the In case of 
 person through who a he claims, has become entitled, by reason bifa^h^ofcon- 
 of any forfeiture or breach of condition, then such right shall dition. Imp. 
 bo deemed to have first accrued when .such forfeiture was in- ^'^27^^ !i^ '^' 
 curred or such condition broken. 
 
 10. Where any right to make an entry or distress, or to bring 
 an action to recover any land or rent, by reason of any for- 
 feiture or breach of condition, has first accrued in respect of 
 any estate or interest in reversion or remainder, and the land 
 or rent lias not been recovered by virtue of such right, the 
 right to make an entry or distress, or to bring an action to 
 recover such land or rent, shall be deemed to have first accrued 
 in respect of such estate or interest at the time when the 
 same became an estate or interest in possession as if no such 
 forfeiture or breach of condition liad happened. 
 
 Where advan- 
 tage of forfei- 
 ture is not 
 taken by 
 remainder- 
 man, he shall 
 have a new 
 right when his 
 estate comes 
 into posiies- 
 sion. Imp. 
 Act, 3-4 W iv. 
 c. 27, 8 4. 
 
 11. Where the estate or interest claimed is an estate or in- in ca«.e of fu- 
 tereet in reversion or remaimler, or other future estate or in- *"''® ^'l**'*'!. 
 
 ,1 11-11 • • 1. r Imp. Act, 34 
 
 terest, anrl no person has obtained the possession or receipt or \v. iv. c. 27, 
 tlie profits of such land, or tiie receipt of such rent, in respect "• ^• 
 of such estate or interest, then such right shall be deemed to 
 have first accrued at the time at which such estate or interest 
 bei-ame an estate oi- interest in possession. 
 
 12. A right to make an entry or a distress, or to bring an Further 
 
 action to recover any land or rent, shall be deemed to provision for 
 
 have first accrued, in respect of an estate or interest in re- estates. 
 
 version or remainder, or other future estate or interest, at the JiPP- *''•?"* 
 
 . . W iv c 27 
 
 time at which the same became an estate or interest in pos- g. 6. ' 
 
 session, by the determination of any estate or estates in respect 37-38 V. c. 57, 
 
 of which such land has been held or the profits thereof or "' 
 
 such rent have been received, notwithstanding that the person 
 
 claiming such land or rent, or some person through whom he 
 
 chiims, has, at any time previously to the creation of the estate 
 
 or estates which have (letermined, been in the possession or 
 
 receipt of the profits of such land, or in receipt of such rent. 
 
 R. S. 0. 1887, c. Il],s. 5. 
 
 6. — (1) If the person last entitled to any particular estate on 
 which any future estate or interest was expectant has not 
 been in the jiossession or receipt of the profits of such land, 
 or in receipt of such rent, at the time when his interest deter- 
 mined, no such entry or distress .shall bo made, and no such 
 action sliall be brought, by any person becoming entitled 
 in possession to a future estate or interest, but within ten years 
 next after the time when the right to make an entry or distress, 
 or to bring an action for the recovery of such land or 
 rent, first accrued to the person wlio.se interest has so deter- 
 mined, or within five years next after the time when the estate 
 of the person becoming entitled in po.ssession has become vested 
 in possession, whichever of those two periods is the longer. 
 
 Time limited 
 as to future 
 estates when 
 person en- 
 titled to the 
 particular es- 
 tate out of 
 possession, 
 etc. Imp. 
 Act. 37-38 V. 
 c. 57, 8. 2. 
 
664 
 
 Chap. 138. 
 
 LIMITATION OK ACTIONS. 
 
 Sec. 6 (2). 
 
 c 
 
 E 
 
 
 The caBtj of 
 bar of future 
 estate and iif a 
 Mubsequent 
 interest 
 created after 
 ri(fht of entry, 
 etc., accrued 
 to owner of 
 particular 
 estate. 
 Imp. Act, 
 37-38 V. c. hi, 
 s. 2. 
 
 VVhen the 
 ri){ht to an es- 
 tate in poHses- 
 sion is barred, 
 the right of 
 the same pur- 
 sons to future 
 estates shall 
 also be barred. 
 Imp. Act, .^-4 
 W. iv. c. 27, 
 8. 20. 
 
 (2) If the right of any such per.son to make f uch entiy or 
 di.stress, or to bring any such action, han been baried 
 under thi.s Act, no jier-son afterwards claiming to be entitled 
 to the same land or rent in re.spect of any subsequent estate 
 or interest under any deed, will or settlement executed or 
 taking effect after the time when a right to make an entry or 
 distress, or to bring an action for the recovery of such 
 land or rent, first accrued to the owner of the particular es- 
 tate whose interest has so deterinini^d as aforesaid, shall make 
 any such entiy or distress, or bring any such action, to 
 recover such land or rent. 
 
 (3) Where the right of any person to make an entry or dis- 
 tress, or to bring an action to recover any land or rent to 
 which ho has been entitled foi- an estate or interest in posses- 
 sion, has been barred by the determination of the period, here- 
 inbefore limited, which is applicable in such case, and such 
 person has, at any time during the said period, been entitled to 
 any other estate, interest, right or possibility, in reversion, 
 remainder or otherwise, in or to the .same land or rent, no entry, 
 distress or action .shall be made or brought by such person, or 
 any person claiming through him, to recover such land or rent 
 in respect of such other estate, interest, light or possibility, 
 unless in the meantime .such land or rent has been recovered 
 by some person entitled to an estate, interest or right which 
 has been limited or taken effect after or in defeasance of such 
 estate or interest in possession. K S. O. 1887, c. Ill, s. 6. 
 
 1. For the purposes of this Act, an administrator claiming the 
 estate or interest of the deceased person of whose chattels he 
 has been appointed administrator, shall be deemed to claim as 
 if there had been no interval of time between the death of such 
 deceased person and the grant of the letters of administration. 
 R. S. O. 1887, c. lll,s. 7. 
 
 S. No person shall be deemed to have been in possession of 
 any land within the meaning of this Act, merely by reason of 
 having made an entry thereon. R. S. O. 1887, e. Ill, s. 8. 
 
 An adminis- 
 trator to claim 
 as if he ob- 
 tained the es- 
 tate without 
 interval after 
 death of de- 
 ceased. Imp. 
 Act.3-4W. iv. 
 0. 27, 8. 5. 
 A mere entry 
 not to be 
 deemed pos- 
 session. 
 Idem. B. 10. 
 
 No right to be 1>. No Continual or other claim upon or near any 'and shall 
 continual ^^ preserve any right of making an entry or distress, or of bring- 
 claim. ing an action. R. S. O. 1887, c. Ill, s. 9. 
 
 Idem. 8. 11. 
 
 No descent, ^^- No descent cast, discontinuance or warranty, which has 
 
 warranty .etc., happened or been made since the first day of July, 1834, or 
 of entry of which may hereafter happen or be made, .shall toll or defeat 
 action. any right of entry or action for the recovery of land. R. S. O. 
 
 1887, c. Ill, ^ 10. 
 
 Idem, 8. 39. 
 
 Possession of 
 
 1 1 . Where any one or more of several persons entitled to any 
 one ooparce- land or rent as coparceners, joint tenants or tenants in common 
 to be*the pos- ^ave been in po.ssession or receipt of the entirety, or more than 
 
Sec. 16. 
 
 LIMITATION OF ACTIONS. 
 
 Chap. 133. 
 
 666 
 
 his or thnir undivided .share or share.s of such hmd, or of the aewiion of the 
 profits thereof, or of such rent, for his or their own benefit, or i^p"Act 3-4 
 for tlie benefit of any i)erson or persons other than the person W. iv. c. 27, 
 or persons entitled to the other share or shares of the same "• ^^• 
 land or rent, such possession or receipt shall not be deemed 
 to have been the possession or receipt of or by such last 
 mentioned person or ]iersons, or any of them. R. 8. 0. 1SS7, 
 c. lll,s. 11. 
 
 t*<i. Where a relation of the persons entitled, as heirs, to the Potisee«ion of 
 possession, or I'eceipt of the profits of any land, or to the receipt [*'?''"?■ ""* 
 of any rent, enters into the possession or receipt thereof, such HCH^ion of the 
 possession or receipt shall not be deemed to be the pos.session heir». 
 or receipt of or by the persons entitled as heirs. R. S. O. 1.S87, "" 
 c. Ill, s. 12. 
 
 III. Where any acknowledgment of the title of the person 
 entitled to any land or rent has Ijeen given to him or to his 
 agent in writing, signed by the person in possession or in 
 receipt of the profits of such land, or in the receipt of such rent, 
 such possession or receipt of or by the person by whom such 
 acknowledgment was given shall be deemed, according to the 
 meaning of this Act, to have been the possession or receipt of 
 or by the person to whom or to whose agent .such acknowledg- 
 ment was given at the time of giving the same, and the right 
 of such last mentioned person, or of any person claiming through 
 him, to make an entry or distress or bring an action to recover 
 such land or rent, shall be deemed to have first accrued at and 
 not before the time at which such acknowledgment, or the ia.st 
 of such acknowledgments, if more than one, was given. R. S. O. 
 1887, c. Ill, s. 13. 
 
 14. The receipt of the rent payable by any tenant from year 
 to year, or other lessee, shall, as against such lessee or any per- 
 son claiming under him, but subject to the lease, be deemed to 
 be the receipt of the profits of the land for the purposes of this 
 Act. R. S. O. 1887, e lll,s. 14. 
 
 tii. At the determination of the period limited by this Act 
 to any person foi- making an entry or distress, or bringing any 
 action, the right and title of such person to the land or 
 rent, for the recovery whereof such entry, distress, or action 
 respectively might have been made or brought within such 
 period shall be extinguished. R. S. 0. 1887, c. Ill, s. 15. 
 
 .Acknowledg- 
 ment in writ- 
 ing given to 
 the pernon en- 
 titled or hia 
 agent, to be 
 equivalent to 
 po88e88ion or 
 receiptof rent. 
 Imp. Act, .'(--I 
 W. iv. c. 27, 
 
 8.14. 
 
 Receipt of 
 ront to be 
 deemed re- 
 ceipt of 
 protiba. 
 Imp. Act, 3-1 
 W. iv. c. 27, 
 8.36. 
 
 At the end uf 
 the period of 
 limitation the 
 right of the 
 party out of 
 possession to 
 bB extinguish - 
 
 Imp. Act. 3.1 
 W. iv. c. 27, 
 
 «. 34. 
 
 ARREARS OF DOWER, RENT, AND INTEREST. 
 
 I ii. No ariears of dower, nor any damages on account of such No arrears of 
 arrears, shall be recovered or obtained by any action for 'lower to be 
 a longer period than six years next before the commencement more than six 
 of such action. R. S. O." 1887, c. Ill, s. 16. ye»"- .. 
 
 Ideme.il. 
 
tJ6() 
 
 Chap. 133. 
 
 LIMITATION OF ACTIONS. 
 
 Sec. 17. 
 
 i 
 
 c 
 r 
 
 5 
 
 I 
 
 !Ji' 
 
 M 
 
 No arrears of | 'J j^j^ arrears of rent, or of interest in respect of any sum 
 
 rentor interest ,. , , iiirii j. 
 
 to be recovered oi money Charged upon or payalile out or any land or rent, or 
 for more than jn respect of any legacy, or any damages in respect of sucli 
 Imp'^Act, 3-4 arrears of rent or interest, shall he i-ecovcred by any distress, 
 W. iv. 0. 27, or action, but within six years next after the same respec- 
 tively has become due, or next after any acknowledgment of 
 the same in writing has been given to the person entitled 
 thereto, or his agent, signed by the person by whom the same 
 was payable, or his agent. K. S O. 18.S7, c. Ill, s. 17. 
 
 Exception in 
 favour of 
 8ul«equent 
 mortgajfee 
 wher J, prior 
 mortKagee has 
 been in pos- 
 aession. 
 Idtvi 8. 42. 
 
 18. Where any prior mortgagee or other incumbrancer has 
 been in possession of any land, or in the receipt of the profits 
 thereof, within one year next before an action is brought 
 Ijy any person entitled to a subsequent mortgage or 
 other incumbrance on the same land, the {)ei.son entitled to 
 such subsequent mortgage or incumbrance may recover in 
 such action the arrears of interest which have become 
 due during the whole lime that such prior mortgagee or incum- 
 brancer was in such possession or receipt as aforesaid, although 
 such time may have exceeded the said term of six years. 
 R. 8 (). 1887, c. Ill, s. 18. 
 
 MORTGAGES AND CHAKGKS ON LAND. 
 
 1 0. Where a mortgagee has obtained the possession or re- 
 ceipt of the ))rotits of any land or the receipt of any rent 
 comprised in his mortgage, the mortgagor, or any person claim- 
 ing through him, shall not bring any action to redeem 
 the mortgage, but within ten years next after the time at which 
 the mortgagee obtained such possession or receipt, unless in the 
 meantime an acknowledirment in writiiu' of the title of the 
 mortgagor, or of his right to reilemption, has been given to 
 the mortgagor or some person claiming his estate, or to the 
 agent of such mortgagor or person, signed by the mortgagee, 
 oi- the person claiming through him ; and in such case no such 
 action shall be brought, but within ten years next after 
 the time at which such acknowledgement, or the last of such 
 acknowledgments, if more than one, was given. R. S. 0. 1887, 
 c. lll,.s. 19. 
 
 Acknowiedg- '40. In case there are more mortgagors than one, or more 
 oTslveral"* persons than one claiming through the mortgagor or mortga- 
 mortgagore. gors, such acknowledgment, if given to any of such mortgagors 
 W Iv^o'k?^ or persons, or his or their agent, shall be as effectual as if the 
 B. 28. ' same had been given to all such mortgagors or persons. R. S. O. 
 1887, c. Ill, .s. 20. 
 
 Acknowledg- ?J I . In case there are more mortgagees than one, or more per- 
 S'wiveraf"* ^^"^^ ^WR. one claiming the estate or interest of the mortgagee 
 mortgngees. or mortgagees, such acknowledgement, signed by one or more of 
 w'^'v^c*!??"* ^"^^^ mortgagees or persons, shall be effectual only as against 
 c. 28. ' the party or parties signing as aforesaid, and tlie person or 
 
 Mortgagor to 
 be harred at 
 end of ten 
 years from the 
 time when the 
 mortgagee 
 took posses- 
 sion, or from 
 the la~t writ- 
 ten acknow- 
 ledgment. 
 Imp. Act, 34 
 W. iv. c. 27, 
 a. 28 ; and 
 37-38 V. c. 57, 
 
 8.7. 
 
Sec 24. 
 
 LIMITATION OK ACTIONS. 
 
 Chap. 13.1. 
 
 667 
 
 against 
 
 persons claiming any part of the mortgage money or land or 
 rent by, from, or under liim, or them, and any person or per- 
 sons entitled to any estate or estates, interest or interests, to 
 take effect after or in defeasance of hi.« or their estate or estates, 
 interest or interests, and shall not operate to give to the mort- 
 gagor or mortgagors a right to redeem the mortgage ;is against 
 the i)erson or persons entitled to any other undivided or divided 
 part of the money or land or rent ; and where such of the mort- 
 gagees or persons aforesaid as have given such acknowledg- 
 ment are entitled to a divided part of the laud or rent com- 
 prised in the mortgage or some estate or interest therein, 
 and not to any ascertained part of the mortgage money, the 
 mortgagor or mortgagors shall be entitled to redeem the same 
 divided part of the laml or rent on payment, with interest, of 
 the part of the mortgage money which bears the same pro- 
 portion to the whole of the n.ortgage money as the value of 
 such divided part of the land or rent bears to the value of the 
 whole of the land or rent comprised in the mortgage. R. S. O. 
 INST, c. lll,s. 21. 
 
 'i'l. Any person entitled to or claiming under a mortgage of Mortgagee 
 land, may make an entry or ' 
 
 ., bring an action to recover ",;« w™hfn ten 
 
 such land, at any time within ten years next after the years from 
 last payment of any part of the principal money or impfAot,^"' 
 interest se(;ured by such mortgage, although more than tenW. iv. &iv. 
 years have elapsed since the time at which the right to make °' ^' 
 such entry or bring such action first accrued. R.S. 0.1887, 
 c. Ill, s. 22. 
 
 Money 
 charged upon 
 land and lega- 
 uiea to be 
 ileemed Hatis- 
 fied at the end 
 of ten years if 
 no interest 
 jiaid or ac- 
 icnowledgment 
 given in writ- 
 ing in the 
 meantime. 
 
 'ill. No action or other proceeding shallbe brought to recover 
 out of any land or rent any sum of money secured by any mort- 
 gage or lien, or otherwise charged upon or payable out of such 
 land or rent, or to recover any legacy, but within ten years next 
 after a present right to receive the same accrued to some per.son 
 capable of giving a discharge for, or release of the same, 
 unless in the meantime some part of the principal money, or 
 some interest thereon, has been paiil, or some acknowledgment 
 of the right thereto has been given in writing signed by the 
 person by whom the same is payable, or his agent, to the per- 
 son entitled thereto or his agent; and in such case no action or 
 proceeding shall be brought, but within ten years after 
 such payment or acknowledgment, or the last of such pay- 
 ments or acknowledgments, if more than one was made or 
 given. R. S. 0. 1887, c. Ill, s. 23. 
 
 34. No action, or other proceeding shall be brought to coveiing 
 recover any sum of money or legacy charged upon or payable, arreara o1"in 
 out of any land or rent, and secured bj' an express trust, terest not to 
 or to recover anA^ arrears of rent or of interest in respect ^'^ ^°'*'"P'^ ^^ 
 
 „ „•' , , , ' , , express trusts 
 
 ot any sum or money or legacy so cnaiged or payable for raising the 
 and so secured, or any damages in respect of such arrears, saine. 
 
 V. c. 67, 's. 10. 
 
 Imp, Act, 3-4 
 VV. iv. c. 27, 
 s. 40: and 
 S7 38 V. c. 67, 
 
 ». 8. 
 
 ■J8 
 
668 
 
 Chap. ia.3. 
 
 r. IMITATION OK ACTIONS. 
 
 Sec. 24. 
 
 except within ihu time witliin which the .same would be re- 
 cov<3ralilo if there were not any such trust. R. S. O. 1S87, c. Ill, 
 s. 24. 
 
 DOWEK. 
 
 Action i>f 
 dower to be 
 broufifht with- 
 ID ten years. 
 
 I 
 c 
 
 m 
 
 *i5. No action of dower .shall be brouj^ht but within ton 
 yeans from the death of the husband of tlie ilowress, notwith- 
 standing any disability of the dowrcss or of any person claim- 
 ing under her. It. S. O. l«87, c. Ill , s. 25. 
 
 dower to be 
 computed 
 
 Time from *iO. Where a dowress has, after the death of her hu.sband, 
 
 ki?!,'!!'/-!,*;*'"'^ actual po.ssession of the land of which she is dowable, either 
 alone or witli hen-s or devisees ot her husband, the period of 
 ten years within which her action of dower is to be brought 
 .shall be computed from the time when such ])o.s.se.ssion of the 
 dowress ceased. This section shall not apply to any case in 
 which the right of action ceased before the .5tli day of 
 March, 1880. R. S. O. 1887, c. Ill, s. 20, 
 
 Where period 
 of limitation 
 elapsed 
 af^ainst a ten- 
 ant in tail to 
 be deemed to 
 have elap-ied 
 asainst those 
 whose rights 
 he could have 
 barred. 
 Imp. Act, 3-4 
 W. iv. c. -11, 
 
 8.21. 
 
 Term elaiiscd 
 in such caseN 
 during the life 
 of the tenant 
 to be computed 
 afraid 8t those 
 whose rii^hts 
 he could have 
 barred. 
 Imp. Act, 3-4 
 W. iv. c. 27. 
 a. 22. 
 
 In case of pos- 
 session under 
 an assurance 
 hy a tenant in 
 tail, which 
 does not bar 
 the remain- 
 ders, they 
 shall be barred 
 at the end of 
 ten years after 
 the period at 
 which the as- 
 surance, if 
 then executed. 
 
 BAU OF ESTATES TAIL. 
 
 ?S1. Where the right of a tenaut in tail of anj' laud or rent 
 to make an entry or distress or to bring an action to recover 
 tlie same, has been barred by reason of the same not having 
 been made or brought within the period limited by this Act, 
 no such entry, distress or action shMll ' ■ in or brought by 
 any person claiming any •"^tatc. ght which sueh 
 
 tenant in tail might lawfi' <■ -^.O. 1887, c. Ill, 
 
 S.27. 
 
 '■JS. Where a tenant ii lil of fi land ur rent entitled to 
 recover the same has died before • m^ expiration of the period 
 limited by this Act, no person cl. ining any estate, interest or 
 right which such tenant in tail might lawfully have barred, 
 shall make an entry or distress or bring an action to over 
 such land or rent, but within the period during whicb such 
 tenant in tail had so long continued to live, he w' have 
 made such entry or distress or brought such actioii S. O. 
 
 1887, c. 111. s. 28. 
 
 ?JJ>. Where a tenant in tail of any land or rent has made an 
 assurance thereof, which does not operate to bar the estate or 
 estates to take effect after or in defeasance of his estate tail, 
 and any person is by virtue of such assurance, at the time of 
 the execution thereof, or at any time afterwards, in po.ssession 
 or receipt of the profits of such land, or in the receipt of such 
 rent, and the same person or any other person whosoever 
 (other than some person entitled to such possession or receipt 
 in respect of an estate which has taken effect after or in de- 
 feasance of the estate tail) continues or is in such pos-session 
 or receipt for the period of ten years next after the commence- 
 
Sec. 24. 
 
 I be re- 
 7,c.lll. 
 
 thin till 
 notwitli- 
 )U claim- 
 
 Sec. 33. 
 
 LIMITATION or ACTIONS. 
 
 Chap. 133. 
 
 669 
 
 ment of the time at which sudi as.surance, if it liad then been w.mld have 
 executed by .such tenant in tail, or the per.«on wlio would have imp*Aot«"3.4 
 been entitled to his estate tail if .such a,ssurance had not been w. iv. c. 97, 
 executed, would, without the con.seut of any other person, have bV^Iw'v^c. 57 
 operated to bar such estate or estates as aforesaid, then, at the «. 6. 
 expiration of such period of ten years, such assurance shall be 
 and be ileemed to have been effectual as against any person 
 claiming an}' estate, int(!rest, or right to take effect after or in 
 defeasance of .such estate tail. R. S. (). 1887, c. Ill, s. 2J). 
 
 husband, 
 If, either 
 period of 
 brought 
 jn of the 
 ' case in 
 I day of 
 
 i or rent 
 o recover 
 ot having 
 this Act, 
 ought by 
 hich suob 
 87, c. Ill, 
 
 ntitled to 
 ;he period 
 nterest or 
 ve barred, 
 to over 
 ih such 
 liave 
 8.0. 
 
 s made an 
 3 estate or 
 3state tail, 
 he time of 
 po.ssession 
 pt of such 
 whosoever 
 
 or receipt 
 r or in de- 
 
 possession 
 jommeuce- 
 
 EQUITAULE CLAIM.S. 
 
 IM>. — (1) Wliere any land or rent is vested in a trustee upon 
 any express tru.st, the right of the centn i <juc frunf, or any ))ei'.s()n 
 claiming through him to liring an aeticm against the trustee; or 
 any person claiming through him, to rccovei- such land or rent, 
 shall be deemed to have first accrued, according to the meaning of 
 this Act, at and not before tln' time at which such land or 
 lent has been conveyed to a purchaser for a valual)le consider- 
 ation, and shall then be deemed to have accrued only as against 
 such purchaser and any person claiming through him. 
 
 (2) Subject to the provisions of Section 82 of The TruKtee 
 Act, no claim of a 6'e,s<wJ 7(',r /r«.'«7 again.st his trustee for any 
 property held on an express trust, or in respect of any breach 
 of such trust, shall lie held to be l^arred Ijy an)' Statute of 
 Limitations. R. S. O. 1887, c. 111. s. 30. 
 
 In CBHe (if f .\- 
 |)ro88tni9t, th(> 
 right shall not 
 l>e deemed to 
 have accrued 
 nntila convey- 
 ance to ft 
 tmrchaser. 
 Imp. Act, :i-4 
 W. iv. c. 27, 
 n. 25. 
 
 Claim alceitui 
 i/ur trust 
 ugainHt 
 trustee. 
 K«v. Stat, 
 c. 129. 
 
 HI. In every ca.so of a cojicealed fraud, the right of an j' per- in cbbhh of 
 son to bring an action for the recovery of any land or rent ''»"'! "" t''ne 
 of which he or any person through whom he claims may whii.-(t"i'e 
 have been deprived by such fraud shall be deemed to have first fr*'"! nmaina 
 iiccrued at and not before the time at which such fraud was imp^Act," .s-4 
 or with reasonable diligence might have been first known or W. iv. c. 27, 
 discovered. R. 8. O. 1887, c. Ill, .s. 31. "• ^^^ 
 
 ii*i. Nothing in the last preceding .section contained shall on- Unless in the 
 able any owner of lands or rents to bring an action for the =»fe of hnn,, 
 
 ■ /. Ill J. c 1.x- • 1 ■f"'<^ purchaser 
 
 recovery ot such lands or rents, or tor setting aside any f,,, value with- 
 conveyance of such lands or rents, on account of fraud against ""'"otice, 
 any bona fide purchaser for valuable consideration, who has w.lv. c. '27 
 not assisted in the commission of such fraud, and who, at the ». 26. 
 time that he made the purchase did not know, and had no 
 reasfm to believe that any such fraud had been committed. 
 R. S. O. 1887, c. Ill, .s. 32. 
 
 IJ3. Nothing in this Act contained shall be deeineil to inter- Right to 
 
 fere with any rule of Equity in refusing relief on the ground "Effuse relief on 
 P • "^ ^1 • . -u .'^ 1 . , the ground of 
 
 of acquiescence, or otherwise, to any person whose riirnt to acquiescence 
 
 brinw an action is not barred by virtue of this Act. R. S. O. '<r utherwife. 
 
 1887, c. Ill, s. 33. ■ vriv^^V 
 
 8. 27. 
 
670 
 
 Chap. 133. 
 
 LIMITATION OK ACTIONS. 
 
 Sec. 34. 
 
 c 
 
 r 
 
 r 
 5 
 
 30 
 
 Certain claims 
 not to be de- 
 feate^ by 
 shewing only 
 that the Bame 
 enjoyed for 
 le^8 than 30 
 years. 
 
 Imp. Act, 2-3 
 W. iv. c. 71, 
 «. 1. 
 
 Indtfeasible if 
 enjoyed over 
 60 years. 
 
 PRKSCRII'TION IN CASES OF EASEMENTS, 
 
 I{4. No claim which may be lawfully made at the Common 
 Law, by custom, prescription or grant, to any profit or benefit 
 to be taken or enjoyed from or u})on any land of our Sovereign 
 Lady the Queen, Hei- Heirs or Successors, or of any ecclesias- 
 tical or lay person or body corporate, except such matters or 
 things as are hereino^ter specially provided for, and except rent, 
 and services, shall, where such profit or benefit has been ac- 
 tually taken and enjoyed by any person claiming right thereto, 
 without interruption for the full period of thirty years, l)e de- 
 feated or destroyed b}' shewinpf only that such i)rofit or benefit 
 was first taken or enjoyed at any time prior to such period of 
 thirty years, but nevertheless sucii claim may be defeated in any 
 other way by which the .same is now liable to be defeated ; and 
 when such profit or benefit has beun so taken and enjoyed as 
 aforesaid for the full period of sixty years, the riglit thereto 
 shall be deemeil absolute and indefeasible, unless it appenrs 
 that the same was taken and enjoyed by some consent or agree- 
 ment expressl}' made or given for that purpose by deed or 
 writing. 
 
 11. S. O. 1887, c 111, s. 34. 
 
 Right of way, 
 or water not to 
 be defeated ty 
 shewing only 
 th»t it began 
 more than 20 
 years prior. 
 Imp. Act, 2-3 
 W. iv. c. 71, 
 
 8.3. 
 
 J{5. No claim which may lawfully be made at the Common 
 Law by custom, prescription or grant, to any way or other ease- 
 ment, or to any water-course, or the use of any water to be en- 
 joyed, or derived upon, over, or fVom any land or water of our 
 said Lady the Queen, Her Heirs or Sviccessors, or being the pro- 
 perty of any ecclesiastical or lay person or body corpoiate, 
 when such way or other matter as herein last before mentioned 
 has been actually enjoyed by any person claiming right 
 thereto without interruption for the full period of twenty years 
 shall be defeated or destroyed by shewing only that such way 
 or other matter was first enjoyed at any time |>rior to the period 
 of twenty years, but, nevertheless, such claim may be defeated 
 in any other way by which the same is now liable to be de- 
 feated, and where such way or other matter as herein last be- 
 fore mentioned has been .so enjoyed as aforesaid for the full 
 period of forty years, the right thereto shall be deemed abso- 
 lute and indefeasible, unless it appears that the same was 
 enjoyed by .some consent or agreement expressly given or made 
 for that purpose by deed or writing. R. S. O. 1887, c. Ill, s. 35. 
 
 Rinhtto SO. No person .shall acquire a right by prescription to the 
 
 UBroMight by *'''^^''"''^''* "'■'^^ ^^^ "^ ^'f?''*' *° "'' ^°^' ^"^ dwelUng-hoU.Se, work- 
 prescription shop or other building ; but this .section shall not apply to any 
 such riglit which lias been acquired by twenty vears' use before 
 the fifth day of March, 1880. R. S. O. 1887, c. Ill, s. 36. 
 
 Indefeasible if 
 enjoyed over 
 40 yebrs. 
 
 abolished. 
 
 How the 
 periods be 
 caloulHted, 
 and what 
 act« only 
 
 JIT. Each of the respective periods of years in the last pre- 
 ceding three sections mentioned shall be deemed and taken to 
 be the period next Viefore some action wherein the claim 
 matter to which such period relates was or is brought ino 
 
Sec. 34. 
 
 [Common 
 • benefit 
 avereign 
 cclesias- 
 ittovs or 
 ept rent, 
 been ac- 
 ; thereto, 
 s, be de- 
 )r benefit 
 )eriod of 
 3d in any 
 ted ; and 
 ijoyed as 
 t thereto 
 i appears 
 or agree- 
 deed or 
 
 Common 
 ther ea.se- 
 ■ to be en- 
 ,er of our 
 g the pro- 
 sorpoiate, 
 mentioned 
 ng right 
 inty years 
 such way 
 the period 
 ) defeated 
 to be de- 
 n last be- 
 r the full 
 ined abso- 
 sanie was 
 m or made 
 
 111, s. 35. 
 
 Sec. 40. 
 
 LIMITATION OF ACTIONS. 
 
 Chap. 133. 
 
 671 
 
 ion to the 
 
 i.se, work- 
 
 [)ly to any 
 
 use before 
 
 s. 36. 
 
 e last pre- 
 d taken to 
 the claim 
 iht ino 
 
 question ; and no act or other matter shall be deemed an inter- «hall be an iu- 
 ruption witliin the meaning of tlie said three sections, unless the'prescHp- 
 the same has been submitted to or acquiesced in for one year ''on- 
 after the party interrupted has li.td notice thereof, and of the \v.''iv, c. 71 
 per.son making or authorizing the same to be made. R. S. O. s- 4. 
 1887, c. HI, s. 37. 
 
 What allega 
 tion by the 
 party claim- 
 ing Hliall be 
 Bufticient. 
 Imp. Act, 2-8 
 \V. iv. c. 71, 
 
 8.5. 
 
 What proof 
 admitted for 
 or against suth 
 allegation. 
 
 liH. — (1) Tn all pleadings wherein the party claiming may 
 now allege his right generally, v/ithout averring the existence 
 of sucli right from time iiiuuemorial, such general allegation 
 shall .still be deemed sufiieient ; and if the .same is denied, all 
 and every the matters in the next preceding four sections of 
 this Act mentioneil and ]Movided which aie applicalde to the 
 case, .shall be admissible in evidence to sustain or rebut such 
 allegation. 
 
 (2) In all pleadings wherein it would formerly have been 
 necessary to allege the right to have existed fiom time imme- 
 morial, it shall be surticient to allege the enjoyiuGnt thereof as 
 of right by the occupiers of the tenement in respect whereof 
 tlie fame is claimed, for and dui'ing such of tiie periods men- 
 tioned in this Act as are app'icable to the case, and without 
 claiming in the name or right of the owner of the fee as was 
 usually done. 
 
 (3) If the other i)artv intends to rely on any proviso, excep- 
 tion, incapacity, (lisal)ility, contract, agreement or other matter 
 hereinbefore mentioned, or on any cause or matter of fact or 
 of law not inconsistent with the simple fact of enjoyment, the 
 same shall be specially alleged, and set foith in answer to the 
 allegation of the party claimin*;, and shall not be received in 
 evidence on any general denial of such allegation. R. S. 0. 
 1887, c. Ill, .s. 38. 
 
 550. In the several cases mentioned in and provided for by 
 this Act, of claims to lights, ways, water-courses or other ease- 
 ments, no presumption shall Ije allowed or made in favour or 
 support of any claim upon proof of the exercise or enjoyment 
 of the right or matter claimed for any less period of time or 
 number of years tlian for such ])eriod or number mentioned in 
 this Act as is applicable to the case and to the nature of the 
 claim. R. S. U. 1887, c. Ill s. 39. 
 
 DISAJULITIES AND EXCEPTIONS. 
 
 1. — In Caaen of Easements. 
 
 40. The time during which anv persoii otherwise capable of Time during 
 ... 1 • i. i- ii li. i- I • which a party 
 
 resisting any claim to anj' 01 the matters mentioned in sec- ccmUl not act 
 
 tions 34 to 3!) inclusive of this Act, is an infan!, idiot, 7(o?i ""'*?*'« 9"™- 
 
 compos meihtw, or tenant for life, or during which any action him! 
 
 has been pending and has been diligently prosecuted until ■"'?• Act, 2 :t 
 
 ». 7. 
 
 No pregumt)- 
 tiim admisei- 
 blu (in proof of 
 enjoyment for 
 a lettH period 
 than prescrib- 
 ed by this Act. 
 Imp. Act, 2-3, 
 W. iv. c. 71, 
 s. 6. 
 
 r 
 
672 
 
 Chap. 133. 
 
 LIMITATION OF ACTIONS. 
 
 Sec. 40. 
 
 abated by the death of any party or jjartie.s thereto, shall be 
 excluded in the computation of the period in said sections 
 mentioned, except only in cases where the right or claim is 
 thereby declared to be absolute and indefeasible. E,. S. 0. 
 LSS7, c. Ill, s. 40. 
 
 c 
 
 5^ 
 
 
 E 
 
 r 
 
 05 
 
 Terra of 41. Wlipre any land or water upon, over or from which any 
 
 chuied^from'' ^"'^'^ ^^''"^.y ^^' '^^^^^^' easement, water-course or run of water has 
 computation l)(>en enjoyed or derived, has been held under or by virtue 
 caser'*'" "^ ^^y ^urm of life or any term of years exceeding three yeai's 
 Imp. Act, 2:i from the granting thereof, the time of the enjoyment of any 
 ^g'^'*^'^'' such way or other matter as herein la.st before mentioned 
 during the continuance of such term shall be excluded in the 
 computation of the said period of forty years, in case tlie claim 
 is, within three years next after the end, or sooner determina- 
 tion of such term, resisted bj^ any person entitled to any rever- 
 sion expectant on the determination thereof. R. S. 0. 1887, 
 c. Ill, 8. 41. 62 V. c. 11,s. 16. 
 
 K.xception an 4'i. Nothing in sections 34 to 39 inclusive of this Act 
 fihe'crownnot •'^''"^'^ support or maintain any claim to anj' profit or 
 duly surveyed benefit to be taken oi' enjoyed from or upon any land of 
 and laid o\-^. j^y,. f^overeign Lad}^ the Queen, Her Heirs and Successors, or to 
 any way or other easement, or to any water-comse or the use 
 of any water to be enjoyed or derived upon, over or from any 
 land or water of our said Lady the Queen, Her Heirs and Suc- 
 cessors, luiless such land, way, easement or water-course or other 
 matter lies and is situate within the limits of some town or 
 township, or other parcel or tract of land duly survej-ed and 
 laid out by proper authoritj'. R. S. O. 1887, c. Ill, s. 42. 
 
 In cases of in- 
 fancy, or luna- 
 cy at the timo 
 when the 
 riRht of action 
 accrues, then 
 live years to he 
 allowed from 
 the termina- 
 tion of the 
 ilisability, or 
 nreviouB 
 death. Imp. 
 Acts, 3 4 W. 
 iv. c. 27, B. 16; 
 37-38 V. c. 67. 
 a. :t. 
 
 2. — 1)1, cases of Land or Rent. 
 
 418. If at the time at which the right of any person to make 
 an entry or distress, or to brinj^ an action to recover any land or 
 rent, first accrues as in sections 4, .'), and 6 mentioned, such 
 person is under any of the disabilities hereinafter mentioned 
 (tliat is to say) infancy, idiotcy, lunacy or unsoundness of mind, 
 then such person, or the person claiming through him, notwith- 
 standing that the period of ten years or five years (as the case 
 may be) hereinbLfore limited has expired, may make an entry 
 or a distress, or bring an action, to lecover such land or rent at 
 anj- time within five years next after the time at which the 
 person to whom such right first accrued ceased to be under any 
 such disability, or died, whichever of those two events first 
 happened. R-.S.O. 1877, c. Ill, s. 43. 
 
 Twenty years '*'^- ^'^ entry, distress or acticm, .shall be made or brought 
 utmost ailciw- by any person, who, at the time at which his right to make any 
 TbTtra '*'" entry or distress, or to bring an action to recover any 
 Imp. .Acts, 3 4 iantl or rent, first accrued was under any of the disabilities 
 
Sec. 45. 
 
 LIMITATION OF ACTIONS. 
 
 Chap. 133. 
 
 H73 
 
 . c. 27, 
 37-38 V. 
 n. 5. 
 
 hereinbefore mentioned, or by any person claiming through W. iv 
 him, but within twenty years next after the time at which ^' gp 
 such right first accrued, although the person under disability 
 at such time may have remained under one or more of such 
 disabilities during the whole of such twenty years, or although 
 the term of five years from the time at which he ceased to be 
 under any such disability, or died, mav not have expired. 
 R.S. O. 1887, c. lll,s.44. 
 
 45. Where any person is under any of the disabilities here- No further 
 inbefore mentioned, at the time at which his right to make an f^edfor a* 
 entry or distress, or to bring an action to recover any land or succeBsion of 
 rent first accrues, and departs this life without having ceased ?mp^Act'"'3.4 
 to be under any such disability, no time to make an entry or w. iv. c. 27, 
 distress, or to bring an action to recover such land or rent be- ^- 1^' ^''^^ ^• 
 yond the said period of ten years next after the right of such 
 person to make an entry or distress, or to bring an action to 
 recover such land or rent, first accrued or the said period of five 
 years next after the time at which such person died, shall be 
 allowed by reason of any disability of any other person. R.S.O. 
 1887, c. Ill, s. 45. 
 
 \ ^ 
 
 Si 
 
674 
 
 LIMITATION OF ACTIONS. 
 
 NOTES 
 
 o 
 
 c 
 
 n: 
 
 ^- 
 
 1/ 
 
 c 
 
 73 
 
 i 
 
 Origin of statute. Tiie Real Propertj' Limitation Act is a combination of tho 
 Knglisli Statutes limiting the time foi- tlie recovery of land or rent and the 
 Prescription Act of 18H2 with a few variations. 
 
 Differences from English Act. Tiie following ilill'eionceH may he noted : — 
 
 (1) Excluding tlie cases of disal)ilities and future estates tlie Knglish period 
 
 of limitation for recovery of land is now 12 years ; in Ontario tlu- 
 limitation is 10 years, except in the case of wild land when the period 
 is 20 years. 
 
 (2) The easement of liglit, unless ac(|Uire(l l)efore Stli March, 1S80, cannot 
 
 he ac(iuired hy pre.scrii)tion in Ontario. 
 
 (3) The Real Property Limitation Act does not in Ontario atl'ect the remedy 
 
 of a mortgagee or other person iiaving a charge on land against the pei- 
 .son of the party liable for the debt upon a covenant to ))ay it, the 
 limitation in such cases being pre8<'ribe(l by R.S.O. c. 72. 
 
 (4) Under the Ontario Act, dilfering in this respect from the English, the 
 
 word land induilcs incorporeal hereditaments, s. 2(1). Nevertheless 
 exclusive possession of land foi' more than 1(1 years will not destroy an 
 easement over tlie same. Mykel v. Doyle (IS80) 4i> U.C'.R. (i5 ; Mc- 
 Kay v. Hruce (1S91) 20 O.R. "0!t, but it is good evidence of abandon • 
 meiit; Hell v. (iolding (l.SlXi) 23 A.R. 482 and quaere whether tlie 
 earlier cases were rightly decided //;. 
 
 Land or Bent- 
 
 The statute is as before intimated properly divisible into two parts, one part 
 relating to the recovery of land oi- rent and the other providing new rules as 
 to prescription in the case of easements. 
 
 Rent. The word "rent'' docs not mean rent reserved on a lea.se for years, 
 but is confined to rent existing as an inheritance distinci from the laiul such 
 as fee farm rents ; (iiaiit v. Ellis (1841)9 M. & W. 113: Irish Land Commis- 
 sion V. Orant (188.1) 10 Apii. Cas. 26. 
 
 Title to Realty Extinguished. Unlike tlie Statutes of limitation relating to 
 I K^isonal actions, this Act does not merely bar the renu^rly, l)ut extinguishes 
 the title of the jiersoii, who would have been entitled to the land but for the 
 Act. Tha Statute need not therefore be pleaded as a defence, 'i'he phiintitr 
 has to state the title upon wliicli he means to rely, and the Statute says that 
 when the time has expired within which an entry or a claim must be made to 
 real property, the title shall be extinguislie<l and pass away from him who 
 might have had it, to the per.son who otlierwise has tlie title by possession or 
 ill whatever other way he may have it. Therefore if the plaintiff states that 
 the period allowed bv the Statute has expired, he stat(!S in law that his title 
 is extinguished, unless indeed he can bring himself within some of the excep- 
 tions under wlii(;li the Statute allows his title to continue; Dawkins v. Lord 
 Penrhyn (1878) 4 App. tJas. .TL When the facts appear on the statement of 
 claim, the defendant might formerly \mvt\ demurred. He may now raise the 
 question as a jioint of law or bv moving to dismiss the action as frivolous; 
 Lawrance v. Norreys (1888) 3!) C\i. I). 213, 15 App. Cas. 210. Where a person 
 has obtained a title by possession, the fact of his taking a lease from the origi- 
 nal owner does not give back tho title to the latter. The party in possession 
 would be estopped from disputing the lessor's title only during the term of the 
 lease: HiUoek v. Sutton (1883)2 O. R. .")48, see also Brvaii v. Cowdal (1873) 
 21 W. R. 093 ; Sanders v. Sanders (1881) 19 VAi.U. 373 ; Coiirl v. Walsh (18821 
 1 O.R. 170. 
 
 Title by Possession. Merc possession of real property for any length of time 
 will not nec(!ssarily confer a good title. The Statute is a hiw of extinctive, 
 not one of acciuisitive prescription — in other words the Statute operates to bar 
 the right of the owner (mt of pos.se.s8ion, not to confer title on the trespasser 
 or disseisor in po.ssession : (iray v. Richford (1878) 2 S.('. R. 431. To ascertain 
 whether a person in possession can defy all comers it is therefore necessary to 
 examine the state of the title when he took possession, and ascertain who wore 
 then the owners, whether such owners were seised of estates in possessicm or 
 were to become entitled to estates in the future and whether such owners were 
 under disability and if such disability has been, for a sufficient length of time, 
 at an end. 
 
LIMITATION OF ACTIONS. 
 
 676 
 
 cannot 
 
 When Time Commences to Run- 
 Trespassers. The Statute applies not to want uf actual possession by the 
 o,-ner, but to cases where he nas been out of, and another i.i possession for 
 the prescril)e(l time. There must be both aKsence of posses.sion by the person 
 who has the right, and actual possession by another, whether adverse or not, 
 to ))ring the case within the Statute; Smith v. Lloyd (1854) 9 Ex. 
 .562. The time tiiereforc runs from the wrongful taking of possession, 
 Dixon V. (Jayfere (1854) 17 Beav. 420, and it ceases to run immediately that 
 pos.session is discontinued, tliough rightful ixmsession may not be resumed by 
 the owner ; Agency Co. v. Short (1888) 13 App. Cas. 7H.S. In tlic absence of 
 frar;! the right to the land is extinguished at the expiration of the prescriVjed 
 perifd, though the owner may have been ignorant of the other's possession'; 
 Rains v. Buxton (1880) 14 C'h. I). 53". 
 
 Successive Independent Trespassers. The po.ssession of one intrudci- ineffec' 
 tual for tlic jmrposc of transferring title, ceases U|)on its abandonment to be 
 effectual for any jjurpose. It docs not leave behind it any cloud on the title 
 of the rightful owner or any .secret proce.ss ut work for the possible benefit in 
 time to come of some casual interlo])er or lucky vagrant ; Agency Co. v. Short 
 (1888) 13 App. Cas. "03. Pcr.sons wlio come into and hold possession under a 
 trespa.sser in one of the rcg\dar modes known to the law, e.g., by devise, 
 descent or conveyance, are entitled to add to the j)eriod of their po.ssession the 
 time during wliich ])ossossion was held by any person through whom they 
 claim ; Hewitt on Limitations, Itil. 
 
 Against Landlords. Where a landlord nierelj' omits to collect rent from his 
 lessee, and the les.scc does not pay rent to any other person, time oonnuenees 
 to run against the landlord from the determination of the lease ; Sanders v. 
 Annesley (1804) 2 Sch. & Lef. 10(i ; Chadwick v. Bioadwood (1840), 3 Beav. 
 308, 530 ; Doe il. Davy v. Oxenden (1840) 7 M. & W. 131, and the same rule 
 applies though there may have been only an agreement for a lease ; Wurren v. 
 Murray (1804) 2 Q.B. 648, and even wiiere tlie wliole rent was paid to the 
 original landlord, and his assignee, notwithstanding a conveyance of i)art of 
 the land to the plaintiff, tlie rent not having been legally apportioned, time 
 did not run against tlic plaintiff' until the expiration of the lea.se ; Laybourn v. 
 Gridley (1802) 01 L.J. Ch. 352. When a renewal lea.sc is granted before the 
 expiration of the term it is doubtful if, when tlie tenant is out of possession, 
 time does not commence to nui against the landlord from the granting of the 
 renewal lea.se ; Kcclesiastical Commissioners v. Rowe (1880) 5 App. Cas. 736 ; 
 Corpus Christi College v. Rogers (1880) 40 L..T. Kx. 4. Where a lease is void, 
 III) initio, the time runs from its execution : Magdalen Hospital v. Knotts 
 (1870)4 App. Cas. .324. 
 
 Tenants fl'om year to year. Time will lun in favor of a tenant from year 
 to year holding without written lease from the end of the firsu year of the 
 tenancy or the last payment of rent, wliichever is tlie later ; Baines v. Lumley 
 (1868) 16 W. R. 574. A payment liy tlie tenant to a person whom he believes 
 to be the agent of the owner will, if tlie payment is ratified liy the owner, pre- 
 vent time from running ; Lyell v. Kennedv (1S80) 14 App. Cas. 437 ; McAuliffe 
 V. Fitzsimons (1880) 26 L. R. Ir. 20. The reservation of any rent however 
 small, will be sutficient to create a tenan<,'y within s. 5 ((i) ; Magdalen Hospital 
 v. Knotts (1870) 4 App. Cas. 324. The paj'ment by tlie t(!iiaiit of taxes where 
 the agreement was §(> a month and taxes was held not to be a payment of rent; 
 Fincli V. (Jilray (1880) 16 A.R. 484 ; Coffin v. North American Land Co. (1891) 
 21 O.R. 80. 
 
 Tenant at will. A tenant at will, will acquire a title b_v possession at the 
 expiration of ten years ti iim the determination of his tenancy or 1 1 years 
 next after the commencement of the tenancy. Where before title is acquired 
 a new tiMiancy at will is created bv agreement, express or implied, a new right 
 of entry accrues ; Re Defoe (1882) 2 O.R. 625, but an entry by the landlord, 
 without objection on the part of the tenant, for the purpose of doing repairs 
 does not inUirrupt tlie acquisition of a title by the' tenant ; Lynes v Snaith 
 (1809) 1 Q. B. 486. The tenancy will be determined by a mortgage made by 
 the owner to the knowledge of the tenant, and a new tenancy sufficient to give 
 a new starting point may be created ; .Tarinan v. Hale (1800) 1 Q. B. 994 ; 
 McDiarmid v. Hughes (1888) 16 O.R. .')70, but there must be some evidence of 
 the creation of a new tenancy ; Keffer v. Kefi'er (1877) 2" C.P. 257 ; Day v. 
 Day (1871) L.R. 3 P.C. 761 ; see Cooper v. Hamilton (1881) 45 U.C.R. 602. 
 
676 
 
 LIMITATION OF ACTIONS. 
 
 % 
 
 r* 
 
 r 
 5 
 
 5 
 
 An eutry in assertion of right by the owner and a consent to remain as 
 tenant or to give up possesHion wlien re(|uirerl will create a now tenancy ; 
 Smith V. Keown (1881) 41) U.C.H. ItW ; Kyaii v. Ryan (l!)Sl) .j S.C.K. 387. 
 Neither a mortgagor nor a ci.flni tjut truxl is a tenant at will of his mortgagee 
 c»r trustee for tiie purposes of s. ."> (7). That section applies to tenancies at 
 will, pure and simple, where tiie party ii: possession could not eitiier at law or 
 in equity set up any riglit to retain posHession against the owiu^r : Warren v. 
 Murray" (18il4) 2 Q. B. (i48 ; IJnunniond v. «ant (1871) L.H. (i Q.B. 763. 
 Where a person is let into iHisaession of land a.s purdia.ser, he is, while not in 
 default, entitled to retain possession aiu! the owner is a trustee for him, within 
 the meaning of s. 5 (8). Time therefore will not conniience to run in his favor 
 until after default; Irvine v. Macaulay (1897) 28 O.R. !)■_'; 24 A.R. 446. 
 Where a mortgagor j)ays off a nujrtgage the true relation of moitgageo and 
 mortgagf)r ceases, and in tlie ali.sonce of a reconveyance or discliarge the mort- 
 gagor will become a tenant at will of tiie moitgagec, and tlie mortgagee's legal 
 estate will be extinguished in 11 years under s. ."> (7); Sands to Thompson 
 (188.'}) 22 Ch. 1). 614. Notwithstanding the ol)servations in tlie latter case, it 
 seems now to be established that s. "> (8) extends to iiuplied as well as express 
 trusts; Warren v. .Murray (1894) 2 (^B. 648; Ir\ine v. Macaulay (1897) 24 
 A.R. 446 ; Ruildint; and Loan Assn. v. Poaps (1896) 27 O.R. 470. 
 
 Payment of rent to wrong person. Where the rent (jf jiroperty comprised 
 in a written lea.se exceeds .S4 per annum, any person not entitled thereto who 
 makes a claim to and receives the rent will acquire a title as against tlie land- 
 lord at the expiration of 10 years from the hrst wrongful receipt ; S. o (.5) ; 
 Williams v. Pott (1871) L.R. "12 Kq. 149 ; Hopkins v. Hopkins (1883) 3 O.R. 
 232. If the yearly rent is less than $4, time will not run untd the lease 
 expires. 
 
 Against Remaindermen. So long as a tenant for life under the same will or 
 settlement is in possession, time can never run again.st the remaindermen ; 
 Gray v. Richford (1878) 2 S.C.R. 431, 4.55 ; Anstee v. Nelms (1856), I H. & N. 
 232. Where a tenant for life aliens his estate the purciia.ser becomes "the person 
 last entitled to the particular estate " within s. 6, and the actual possession 
 not being separated from the right to pos.session, the limitation of five years 
 from the renuiinder vesting contained in that section does not ap[)ly ; Pedder 
 V. Hunt (1887) 18 Q.IJ. U. 565. The sections relating to estates in reversion 
 expectant on the determination of a particular estate apply only wiiere another 
 person than the reversioner is entitled to the particular estate ; Doe d. Hai. v. 
 Moulsdale (1847) 16 M. & W. 689. After the Statute has commenced to run 
 the creation of new rights will not stop it ; Stackpoole v. Stackpoole (1843) 4 
 Dr. & W. 320 ; see also Thornton v. France (1897) 2 Q.B. 14.3. 
 
 Future Estates. A future estate within s. 5 (11) (12) and s. 6 will include 
 an estate in fee simple, which by force of the Statute of Uses divests a prior 
 fee simple ; Thuresson v. Thuresson (1899) 30 O.R. 504. Where an estate is 
 settled to A for life, and after his death to such uses as he may appoint, and 
 A's life estate is extinguished by adverse possession, A's appointee will be 
 entitled under s. 6 to 5 years after A's death to recover the land ; Re Earl of 
 Devon's Settled Kstates (1896) 2 Ch. 562, and whore land is settled to such 
 uses as A may appoint, and until appointment to the use of B in fee and B's 
 title is extinguished, the right of an appointee from A accrues only on the 
 appointment taking effect, and he has at least 5 years and perhaps 10 years to 
 bring an action ; iTiuresson v. Thuresson (1899) 30 O.R. .')04. 
 
 Mortgagees. When the mortgage deed confers no right upon the mort- 
 gagor to enjoy the land until default, the riglit of entry accrues to the mort- 
 gagee immediately upon the execution of the mortgage, and his action must b& 
 brought witliin ten years from that time or from the last payment or ac- 
 knowledgment ; Doe d. Roylance v. Lightfoot (1841) 8 M. & W. 553; but a 
 payment after tlie time has run will be ineffectual ; Hemming v. Blanton 
 (1873) 42 L. ,1. C. P. 1.58. A judgment for foreclosure will give a new 
 starting point, and time will only then run from the date of tlie judgment ; 
 Pugli V. Heath (1882) 7 App. Cas. 2.35. Where a mortgage created before pos- 
 session was taken by the defendant, or his predecessors in title is paid off, a 
 new right of entry is acquired, and the person paying is a "party claiming 
 under a mortgage" within s. 22; Henderson v. Henderson (1896) 23 A. R. 
 577 ; but the result is otherwise when the mortgage is made after the Statute 
 has commenced to run in favor of a trespasser as against the mortgagor ;. 
 Thornton v. France (1897) 2 Q. B. 143. 
 
LIMITATION OF ACTIONS. 
 
 677 
 
 The creation of a mortgage aftei' tlie Statute had ooniineiieeil to run against 
 the mortgagor was held in (,'anitron v. Walker (1890) 19 0. R. '212 to create 
 a new right of entry, and a person elainiing under it entitled under s. '22 to 10 
 years after default or the last payment to oring an action, hut this decision is 
 contrary to Thornton v. Franco (1897) 2 Q. B. 142, where the contrary was 
 held. 
 
 Mortgagors. The possession of a mortgagee within s. 19 nmst have been 
 gained by him in that charaetci- ; if, therefore, he purchase the equity of re- 
 demption and enter into possession, he cannot set up that possession as the 
 possession of a mortgagee in answer to the claims of persons seeking to impeach 
 his title as i)urchaser ; Faulds v. Harper (1880) 11 S. C. R. 039, (>")">. 
 
 Estates Tail. Where the tenant in tail is barred, tlie i.ssuc in tail are also 
 barred; Austin v. Llewellyn (18,53)9 K.x. 270, .see Karl of Abergavenny v. 
 •Hrace (1872) L. R. 7 Kx. 145, anil there is no .saving for di.sabilities ; (ioodall 
 V. Skerratt (1S;54) .'1 Drew. 210. Hut s. 21 cloes not apply where the tenant in 
 tail has conveyed his right, and tluis put it out of liis power to enter ; Cannon 
 V. Rimington n8.)2) 12 C. li. 1. 
 
 Against Trustees. Ordinarily no lapse of time will bar an action to recover 
 landhcld l)y a tiiistce on an express tiust. Hut under s. 24 simple contrar) 
 debts secured by a trust in a will to pay the .same out of real estate will I 
 barred in 10 yc-iirs : Re .Stephens, Wai burton v. Stephens (1889) 43 Ch. U. 39 ; 
 Fearnside v." Flint (1883) 22 (,'h. I). ."w9. Where land is conveyed to trus 
 tees to pay an ainniity only the arrears arc atl'ected by the section ; Hughes v. 
 Coles (1884) 27 (.'h. I). 231, but if the rigiit first accrued 10 years before actior 
 noiu' of the instalments whidi accrued before action are recoverable ; ih. 
 
 Concealed Fraud. Sections 31 and ,S2 provide that time shall not lun, w here 
 any ))er.son has been deprived of land through concealed fraud, until the fraiui 
 was, or might with rea.sonable diligence have been, discovered. The circum- 
 stances nnist lead to the reasonable inference that the fraud was the cau.se of the 
 depi'ivation and excliide other possible cau.scs ; Lawrance v. Norrcys (1890) lo 
 App. Cas. 210. Tlure nmst be some contrivance to induce the real owner to 
 believe that he is not the owner; Willis v. Howe (1893)2 Ch. M,'). Mere 
 ignorance is insuttieicnt ; Dawkins v. Lord Pem'hyn (1877) Ch. D. .324; 
 Rains v. Huxton (1880) 14 Ch. D. ;')37. Biinging u]) an eldest .son (the heir) 
 in the belii^f that he is ii younger .son is concealed fraud ; Vane v. Vane (1873) 
 L. R. 8 Ch. 383; and .so is procuring instrunu'nts to be executed by a person 
 of unsounil mird ; Lewis v. Thomas (1843)3 Hare 20, and so is the omission 
 by an insolvent of an estate from his statement of affairs; Sturgis v. Moore 
 (18,58) 24 H(^av. .541. .\ purchaser is not entitled to the benefit of s. 32 if his 
 agcn* who negotiated the jiurchase had in the course of the transaction knowl- 
 edge of the fraud, or had rea.son to believe that a fraud ha<l been committed ; 
 Vane V. Vmic(1873) L. R. 8 Ch. 483. 
 
 What Possession is Sufficient- 
 Adverse Possession. 'riu< effect of the present Statute has been said to do 
 -away with tlie doctrine of non-adverse possession and although, perhaps, now 
 no bettei' expression than adverse possession can be used, yet it is not adverse 
 in the sense in which that phrase was used before the Act was originally passed. 
 Ely V. Bliss (!H."i2) 2 1). M. kC. 470. Before the Act it was necessary to 
 determine in what nuinnei' the per.son who had been in possession had held 
 such possession. If he had hehl in a character incompatible with the idea that 
 the freehold remain<!(l vested in the owner the possession was adver.se, but if 
 compatible with the ownei 's title it was not adver.sc. Now the (piestion is (in 
 most cases) whether the re(|uisite tinie has elapsed since the right of the 
 owner to recover po.sse.ssion accrued ; Nepean v. IJoe (183.5) 2 M. & W. 910. 
 
 Against Infants. Where a person enters upon the property of an infant 
 whether the infant has been in actual possession or not, such person will be 
 fixed with a fiduciary position as to the infant (I) when he is the natural 
 guardian of th(! infant (2) when he is .so connected, by relationship or other- 
 wise, with the infant as to impose on him a ilutj' to ])rotcct, or at least not 
 prejudice, his rights ; Quinton v. Frith (1868) Ir. R. 2 Kq. 396. Upon this 
 principle the possession of a father of his infant child's land is the possession 
 of the infant ; Thonuis v. Thonuis (IS'if)) 2 K. &. J. 79 ; Hobbs v. Wade (1887) 
 30 Ch. D. -153; Kent v, Kent (1891) 20 O.R. 44.5, 19 A.R. ,3.52; Tinker v. 
 
c 
 
 7^ 
 
 
 C 
 
 CD 
 X 
 
 678 
 
 ii f 
 
 LIMITATION OF ACTIONS. 
 
 Kodwoll (1894) (19 L.T. 591, but the iwsscHHion of a person wlio enters into 
 pfisseHsion under an agreement with an infant's mother with notice of tlie 
 infant's rights is adverse ; Re Taylor (ISH0)28 CJr. H4(l. A person who pur- 
 chases from a trustee foi- an infant witli notiee of the trust is the possession of 
 the infant ; "i'oung v. Harris (1*^9'^) Ho L.T. 45 ; and so is that of an uncle who 
 was executor of the ancestor of the infants from whom thev derived tith' ; 
 Pelley v. Baseond)e (1S64) ;<3 L..J. Ch. 100, 34 L..1. Cli. -I'AW. ' Tlie possession 
 as bailiff will lie deemed to continue after the infant's majority until there is 
 something to eiiange the <haracter thereof ; Tinker v. Hodwell (1894) 69 L.T. 
 591. Conversely, when trustees for- an infant take possession of land on his 
 behalf, their possession will be the po.ssession of the infant so as to accpiire for 
 him a title by posses.iion against the true owner ; Re Goff (1879) 8 P. R. 92. 
 
 Wife. The possession of n wife of her husband's lands is the possession of the 
 hu.sband, and where a husbanil disappeared in 1847 and did not return until 
 1877 and his wife remained in pos.session until 1S75, when a purchaser claim- 
 ing through her and another husbaixl, wliom she had married in 1853, took 
 possession, it was held that the husband was entitle<l to recover the land ; 
 .McArthur v. Kaglcson (1878) 43 V (.'.R. 400, 3 A.R. 577. 
 
 Schoolmaster. Where the po.sHtssion is incidental to a contract of hiring the 
 Statute does not operate ; as where a schoolmaster occupied a school, hit- 
 possession was held to be that of the riwner of tlie school ; Moore v. Dolieity 
 (1843) 5 Ir. L.R. 499 ; see Truesdell v. Cook (1871) 18 (Jr. 532, .535. 
 
 Quests. Where a brother put his sisters in possession and contributed to 
 their support and paid the taxes and did the necessary repairs, the sisters were 
 held to be in the position of guests and could not acquire a title ; Reakim v. 
 Peakini (1895) 2 Ii. R. 359. 
 
 Estoppel. Where a person in po.ssession becomes rightfully entitled to the 
 possession untler a will or settlement, he will be deemed, unless he disclaims, 
 to continue in possession under his rightful title and consequentlj- the Statute 
 of Limitations will stop ruiming in his favor : (!rav v. Richford (1878)2 S.C.R. 
 431 ; Re Dunham (1881) 29 (ir. 2i>8 ; Re Defoe ( 1 8H2) 2 O.R. 023 ; Molony v. 
 Molony (1894) 2 Ir. R. 1, and if the .settlor had no title, a tenant for life, in 
 pos.se.ssion under the settlement, will hold any title by pos.session, ai^quired by 
 him, subject to the trusts of the .settlement ;'Dalton v. Kit/.gerald (1897) 2 Ch. 
 86. 
 
 Caretaker. If a peison enters into possession of land as the servant or care- 
 taker of the owner, or if being in possession he agrees to protect the pro))erty 
 for the owner, the possession will be the possession of the owner and the 
 Statute will not run against him ; Doe d. Perry v. Henderson (1847) 3 U.C.R. 
 486 ; Doed. Quinsey v. CaniHe (1849) 5 U.C.R'. 604 ; Allen v. Kngland (1862) 
 3 F. k. V. 49: (Ireenshields v. Bradford (1881) 28 fir. 299, an.l evei 
 where the caretaker has the entire beneficial use of the land, the 
 Statute will not rini if it be shown that he was entitled thereto as 
 the ronnuieration for the care of it or performing other services ; Ryan v. 
 Ryan (1880) 4 .\.R. 503, 590 ; 5 S.C.R. 387, and where the possession was on 
 behalf of one person and subsequently that person was adjudged to be a trustee 
 for others as to undivided jxirtions thereof, the continuance in possession after 
 the severance in the ownership was held to be still in the same character : 
 Howard v. 0'D(mohue (1891) 19 S.(J.R. 341. The fact of the occupation being 
 as caretaker may be shown by parol evidence; Hickej' v. Stover (1885) 11 
 O.R. 100. 
 
 Possession Under Defective Title. Where a person is residing upon and 
 cultivating a lot of land to the whole of whicli he (claims title under convey- 
 ances whicn, if they were valid, would cover the wliole, he is regarded as being 
 oonstruotivelv in possession of the whole lot ; Weld v. Scott (1855) 12 U.C.R. 
 537; Steens 'v. Shaw (1882) 1 O.R. 32; McOregor v. Keilier ( 1883) 9 O.R. 
 681; Robertson V. Daley (1880) 11 O.R. .S.52 : Re Rain and Leslie (1894) 25 
 OR. 1.3(). 
 
 Possession by Trespassers. Wiierc the iierson invoking the aid of the 
 Statute is a mere trespasser, having no color of title, he is confined to what is 
 called "pedal possession," i.e., to such property as he has actually cultivated or 
 enclosed for the recjuisite period : Weld v. Scott (1855) 12 U.C.R. .")37 ; Harris 
 V. Mudie (1882) 7 A.R. 414; Parks v. Cahoon (1894)23 S.C.R. 92. The 
 possession moreover must be continuous. Isolated nets of trespass will not 
 
LIMITATION OF ACTIONS. 
 
 67§ 
 
 give a title ; Shoneii v. Pearson (1887) 14 S.C. R. 581. Where a trespasser 
 grew rrops on the land in the summer and did nothing at all in the winter, 
 except draw manure on it, which he spread in tlii' spring, it w.-'.s held that the 
 light of the true owner attached on each occasicn when tlie pusaession became 
 vacant in the autumn, and that tiic operation of the Statute ceased until actual 
 possession was taken again in the spring ; Collin v. North American Land Co. 
 (1891) 21 O.R. 80. The possession must lie exclusive ; (Jriftith v. Brown (1880) 
 .1 A.R. .303. Where the owner of the land put his cattle thereon to pasture he 
 was held to he in receipt of the profits so as to prevent title heiiig acciuired hy 
 a person in possession ; Rennie v. Frame (1896) 29 f).R. !\H<), and where the 
 person in pos.session improved the laml uii<ler agreeuicnt with the owner, 
 Spragge, (J..T.O., thought the owner might he considered to he in receipt of 
 profits : Workman v. Rohh (1882) 7 A.R. .389. Tlie use of a tunnel or a cellar 
 under the land is such an exclusive possession of the portion of the land 
 occupied thereby as to enable a title to be ac(|uii'ed ; Beven v. London Portland 
 Cement Co. (1893)67 L.T. HI."): Rains v. Buxton (1880) 14 Ch. I). aSl. 
 
 Boundaries. \\ here a fence line is relied upon to give a title by possession 
 to laiul of a neighbour encroached u))on it must be an actual operative boun- 
 dary. The lino of an actual fence will not be produced so as to give title to 
 land not enclosed ; Ferrier v. Moodie( 18')4) 12 U. C. R. 379, but see McCircjior v. 
 Keiller (1883) 9 0. R. 677. If there has been actual possession title will be 
 ac(iuired, though there is no fence; Klliotl v. Bulraer (1876) 27 C. P. 217. 
 Where a ditch, the soil of which was in the plaintirt', ran between his pr<iperty 
 and that of the defendant, with a hedge on the plaintifTs side of the ditch and the 
 plaintiff's predecessor laid drain pipes in tlie ilitch, which drain was used by the 
 plaintiff and defendant, and the ditith was filled in and thereafter used by the 
 defendant as part of his garden, it was held tliat he hadsufticient pos.session to 
 acquire a title, although the plaintiff had on two occasions opened the ditch to 
 clean out the drains and had continued to cut the hedge from the defendant's 
 side; Marshall v. Taylor (189.)) 1 Ch. 641 ; but where the defendant had 
 merely cut timber on the lan<l in dispute, and had sapped maple trei's for 
 .sugar, but had not fenced, his possession was insutticient; Horton v. Humphries 
 (1893) 22 S. ('. R. 739; see also judgment of Armour. .7., in Shepherdson v. 
 McCuUougli (1882) 46 U. C. R. ".73, and in Steers v. Shaw (1882) 1 0. R. 26. 
 Merely fencing in a lot without putting it to some actual continuous use is not 
 sufficient to make the Statute run ; Stovel v. Gregory (1894) 21 A. R. 137. 
 
 Wild Land. The twenty years' pos.session of wild land necessary to extin- 
 guish the titl(^ of the owner applies only in favor of tlie patentee or parties 
 claiming under him without knowledge of the possession. It does not apply in 
 favor of a tax purchaser ; Brooke v. Oibsoii (1896) 27 0. R. 218. Unless the 
 patentee or some one claiming under him has resided upon the land, or has cul- 
 tivated or improved it or ac^tually used it, the limitation under s. "> (4) is ten 
 years from knowledge, not exceeding in all t«enty years. Clearing or culti- 
 vating bv trespassers will not shorten the time; Stovel v. (Jregory (1894) 21 
 A. R, 1.37. 
 
 Administrator. With respect to interests in land or rent, including legacies 
 i-liarged on land, time runs against an administrator from the accrual of the 
 right, although an interval elapses between the death of tne intestate and the 
 grant of administration ; Davies v. Williams (1886) .34 Ch. I). iinH; Re Bon.sor 
 and Smith (1SS4) 34 Ch. 1). .")6(( n. This was always tlie rule as to executors. 
 
 Entry. Where the land is vacant, an entry by the owner upon any portion 
 of the land is an entry referring to the whole ; (ireat Western Rv. Co. v. Lutz 
 (1881) .32 C. P. 166. 
 
 Entries, sufficient to constitute trespass if unlawful, will interrupt the run- 
 ning of the Statute; Hooker v. Morrison (ISSl) 28 fir. 369. Putting up 
 boartls by the owner on tins land, stating that it is for sale, is sufficient to vest 
 the legal possession in him to enable him to inaintain trespa.s8 ; Donovan 
 V. Herbert (1884) 4 O. R. 635; and entering into possession and grant- 
 ing a lease to one of the persons in po.s.session is sufficient to make 
 the pos.session that of the owner; Arnold v. Cummer (1888) 16 O. R. 
 382; Canada Co. v. Douglas (1877) 27 C. P. 339. An entry by the lord 
 of the manor in the absence of the pos.sessor of a hut and piece of 
 land, but in the presence of his family, coupled with a statement that he took 
 po8se.s8ioii in his own right, was insutficient, although he cau.sed a .stone to be 
 taken from the hut; Doe v. ("oombs (1850) 9 C. T5. 714. When the only ad- 
 
 . '1 
 
(5 so 
 
 I, IMITATION <»K ACTIONS. 
 
 
 1^- 
 
 if 
 
 r 
 
 03 
 
 veisf posHUMsioii IK tlif ei'L'Ltidti of a fi-iice, knuoking down the fence l)y tlio 
 owner Ik a snttii'iont retaking of ixwsosHion; \VornHani v. Vandenbrande (18(10) 
 17 W. R. ra. 
 
 entry, siicl 
 
 S. S of the Stiilute :ij)plie>i to a inni entry, siuli as stepiniig on any rorm 
 if tlie land in tlie niglit time and pronouncing a few worfiN, without an}' a 
 
 ake i)oHHeHsion. If the iKwseH.sion is taken a/iiH 
 
 as stepjinig on any corner 
 ' . at- 
 leuiftt or intention or \vinli to take jMWHession. If the |K>Hsen.sion is taken aiiimo 
 /mssidnidi. whether retained for an liour or a week, is immaterial : Handall v. 
 StPi)hcn8 {\Kr.i) -2 K. & H. (i4l: Canada Co. v. Dougks (1S77) --'7 C. I'. 339. 
 15ut merely vi.siting a lot yearly, and staying on it with the party in posses- 
 sion, as a visitor, is insufficient: Williams v. McDonald (1873) 33 U. C. K. 
 4'23: Brock v. HetuiesH (18!KS) 2!) O. K. 40S. The conniiencenuMil of an action 
 to recover the lanil will jiievent tlie further runninfi of the Statute ; Young v, 
 Hol.s..n (1879) 3(M'. P. 431. 
 
 Continual Claim. Formerly a peaceahle entry repeated oti'e every year was 
 sntliciont to prevent a right of entrv being barred; Ford v. (irev (1704) 
 1 Salk. '-mr.. 
 
 Tenants In Common. &c. 'he ciitr.v of one co-parcener has not the etl'eet of 
 \esting possession in the ntlier: VVoodrotl'e v. l)oe(184G) IT) .M. & W. 792: 
 Shaw V. Shaw (1M;')!() 8 ( '. I'. 373. Tlie possession of one tetiant in common is 
 therefore separate from tliat of his co-tenants not in possession ; Harris v. 
 .Mndie (188'2) 7 A. K. 418. Where land was held in trust for five persons and 
 four of them received the rents for twentv years, the fifth was held to be barred; 
 Burroughs v. MiCreight (1.S44) I .1. & L. 290; Boiling v. Hob<lay (1883)31 
 W. R. 9. \\'here a father held possession of land, one undivided share in 
 whicli Itelonged to an adult diild, the title of that cliild was extinguished at 
 the expiration of the statutory period : Hobbs v. Wade (1887) 3(i (;h. D. 553 ; 
 but where for some years a tenant in connnon had accounted for a moiety of 
 the rents a presumption was rai.si.-d. in the absence of evidence, that a similar 
 accounting had been made previously; Sanders v. Sanders (1881) 19 Ch. D. 
 373. The po.s.session of a tenant in common will not be limited to the part 
 actually occupied, but will extend to the whole lot; Meyers v. Doyle (1860) 
 9 ('. I'. 376. Where a teiumt in common out of possession acipiired a share by 
 t he death of a tenant in corumoM in possession, thi^ right of entry as to both 
 shares was held to accrue at the time of the acquisition of the latter share ; 
 Hill V. Ashhridge (1892) 20 A. R. 44. Land ac<iuired by two persons by 
 length of po.sse.ssion will be hc^ld liv tliem as tenants in common ; Brock v. 
 Bennes.'. (1898) 29 O.R. 468. 
 
 Relations. I'o.s.session by the widow to tlie exclusion of tlie heirs will give 
 her a good title, and her possession will not be treated as in the capacity of 
 dowress; Johnson v. Oliver (1883). 3 O. R. 26. 
 
 Acknowledgments. 
 
 There are several kinds of acknowledgments j)rovided for liy the .Statute : 
 
 (1) By a trespasser or tenant in possession or in receipt of the rents and 
 profits. 
 
 (2) By a mortgagor in possession. 
 
 (3) By a mortgagee in possession. 
 
 (4) By a per.son to whom any ariears of rent or of interest on a legacj' or 
 money charged on land are payable. 
 
 By Whom to be Signed. An acknowledgment given to tlie true owner of 
 land or rent niu.sl, to be cll'ectual, be signed by the person in pos.session, or in 
 receipt ot the profits or rent : s. 13 ; Ley v. Peter (1858) 3 H. & N. 101. An 
 acknowledgment which will preserve the right to redeem a mortgage must be 
 signed by the mortgagee or the per.son claiming through him ; s. 19. An ac- 
 knowledgment tn keep alive the right of a mortgagee must be signed by the 
 person by whom tlie mortgage money is payable, or his agent ; s. 23. If signed 
 Iiy a trustee or his agent an acknowledgment is sufficient under s. 23, although 
 it does not impose any personal liability on the trustee ; St. John v. Boughton 
 (1838) 9 Sim. 225. If signed by an agent the agency may be proved by parol ; 
 Coles v. Trecothick (1804) 9 Ves. 250; Jones v. Bright (1829) 5 Biiig. .5.33; 
 Toft v. Stephenson (1851) 1 1). M. & G. 28. An acknowledgment of arrears 
 of rent or of interest on a legacy of money charged on land which will entitle 
 
I, IMITATION (tK ACTIONS. 
 
 68] 
 
 till' iRTHoii to whom the Huine is |)ayal>U) to inoi'i! than aix yuiirs' itrreaix iiiiiHt 
 1)0 signed by the jierson hy wlioin thn sariR' is ])ayivhlc, or his agent ; s. 17. 
 These words iiieliide all tiie jicrsoiiN against wlioin the payme'.t of such arreaiti 
 might he enforced ; liolding v. Liine (IS(i3) 1 I). .1. & S. 122, hut an aeknowl- 
 edgnieiit l>y u mortgagor of more than six years' arrears will not deprive a 
 mortgagee or piueliaser who heoanie such before the acknowledgment of the 
 lieiictit of the Statute : ih. ; (.'olquhonn v. Murray (1S!»9) 2<» A. R. 2(14. 
 
 To Whom to Be Made. In all cases under this Statute the acknowledgment 
 must l)c made to the peison who is to benefit therefrom or his agent ; Kurs- 
 don V. ('legg(lS42) l(» M. & \V. r)72 ; (ioo<le v. .lob(l«r)9) 2H L.J.y.H. 1; 
 Maikwick V. Hardiiigham (1S8(I) ITiCh. 1). 33!t. A statenienl of the amount 
 due on a mortgage in a eon', eyanic to a ])urchaser is not an acknowleilgment 
 of which a mortgagee can talce the beiielit ; Cohiuhimii v. Murriy (IWMI) 2»i 
 A.K. 204. The Kee|)ing of aeccmiits by a mortgagee in po.ssession is not an 
 acknowledgment to the mortgagor ; see Baker v. VVhefton (1S4.'>> 14 Sim 42K ; 
 Re .Mlisoii (187!)) 11 Ch. I). 29;j. A convej'ance by a mortgagee in poH8e.s8ion 
 to a purchaser "subject to the e(|uity of redemption" is not nn acknowledg- 
 ment so as to make the estate redeemalile ; Lucas v. Denison (1H4.'1) l.S Sim. 
 584. It is not necessary, however, that an agent should at tlic time of leceiv- 
 ing the! acknowledgment have autlioiity to act : Trulock v. Hobey (1841) 12 
 iSim. 402 ; n subse(|uent ratification will be sutlicient : .lones v. Bright (18'20) 
 "> Bing. ."iS-T ; see I.yell V. Kennedy ( 1889) 14 A))!). Cas. 437. An affidavit in 
 the suit may be sudieient undiT s. 17; Tristiani v. Harle(1841) I Long & T. 
 18t». In .some Irish c'ases it has been held that s. 23 only bars the remedy and 
 does not extinguish the right. If this were so an aeknowlcdgiuent after the 
 Statutory period would be sutlicient to restore the mortgagees title. Under 
 our Statute it has been held that the right is extinguished; Court v. Walsh 
 (1882) lO.R. I(i7 ; and a subse<iuent acknowle<lgmeiit wimld be inert'eetual ; 
 Sanders v. Sanders (1881) 19 Ch. 1). 373. 
 
 A mortgagor will be treated as an agent of the mortgagee ; Hooker v. 
 Alorrison ( 1881)28 (ir. 3ti9. An aeknowledgmeiit to a trustee is sufficient; 
 Mclntyre v. Canada Co. (1871) 18 (Jr. 307. 
 
 SufBciency Of. A letter proposing terms stating "This being done it is 
 hopeil the judgment will be satisfied '' was held to be sulheient : Vincent v. 
 U'illington (1841) 1 Long. & T. *.16. A letter stating " I will comply with 
 your re(piest for the repayment of ijioOO I borrowed from you, and until jMiy- 
 ment I will execute anything you wish me to do for its secur'ty." is sutlicient, 
 Barwick v. Barwick (1874) 21 (ir. 39. 
 
 A letter by a mortgagee in possession stating the amount due and that " no 
 ))art of that sum has been paid to me but the rents I have received have nearly 
 kept down the interest " is sufficient ; Miller v. Brown (1882) 3 O.K. 210. 
 
 A mortgage of the whole lot to a third person by the party in possession 
 reserving the piece in disjiute, is not an ucknowledgnieiit of the title of the 
 ownci to the piece in dispute; Williams v. McDonald ( 1873) 33 U.('. K. 423. 
 
 The ccmstniction of a docum^'nt given in evidence as an acknowledgment is 
 for the Court and not for the jury : Doe d. Curzon v. Kdmond (1840) 6 M.& 
 W. 295 ; Fursden v. Clegg (1842)'lO M. & W. 572. 
 
 The acknowledgment should be made with the intention of rendering the 
 party making it liable to the demand ; Holland v. Clark ( 1842) 1 Y. & C.C.C. 
 15. 
 
 An agi'eemcnt to purchase the land from the true owner is sufficient : Cahuac 
 v. Cochrane (1877)41 U.C.R. 439, and so is an uiuiualified otter; Pent- 
 ington V. Brownlee (1868) 29 U.C. H. 189. But if the party is in possession 
 under an imperfect paper title and wishes merely to strengthen such title by 
 getting in an outstanding claim the offer will not amount to an acknowledg- 
 ment : Drake v. North (1857) 14 U.C.R. 476; see Beigle v. Dake (1877) 42 
 U.(J.R. 261. 
 
 If an acknowledgment contains nothing but the simple truth, i.e., truly 
 acknowledges the title of the true owner, it cannot be set aside ujion the pretence 
 of being obtained by fraud ; Ferguson v. Whelan (1.S77) 28 C. 1'. 116. 
 
 Effect of Acknowledgment. An acknowledgment of title in writing makes 
 the possession of the person making the acknowledgment the possession of the 
 person to whom it is made; Cahiiac v. Cochrane (1877) 41 U.C.R. .^.39. 
 
682 
 
 LIMITATION OK ACTIONS. 
 
 c 
 
 E 
 
 Arrears of Dower, Rent and Interest. 
 
 As agaiiint lanil, till! Stiitiito preveiitH llio recovi'ry <'f moii" limn uix U'ai>- 
 arruiirH of dowi'i'. No ancarH of rent or iiitt'reHt oaii lie rccoverod except liy 
 action comniciKiMl or clistifSH iiiafle witliiti six years after the «anie accrued or 
 were a<^kiiowIe(l>;e(l in writing. Only the recovery against the lanil is 
 affectefl. If any personal obligation for iiayinent thereof exists, '.</., u 
 covenant, the limitation in respect of the personal reniedv isgovornedbv other 
 HtatutcH, ..,/., K.S.O. e. 7-i. Hunter V. Noekolds (IH.'/t) I Mac. * <i. t»40: 
 Paget V. Foley (l,S»i) I |!ing. N.C. ti"!! : McMicking v. (lilihons (IH!I7) ■_'+ 
 
 raget v. I'olev 
 A.R. .-),S(i. 
 
 Rent. Tile rent rcfei red to is rent charged on land; I'agel v. Foley (183(1) 
 '2 Bing. N.C ()"!• ; and liy virtue of s. "J (.S) iiu-ludes annuities ; Hughes v. 
 Coles (I8S4) '27 (;ii. 1). -J:)! ; Francis v. (irover (1847) "> Hare 39, hut where an 
 annuity was charged upon a reversion, — an interest in land the Statute was 
 held not to apply so long as the interest continued reversionarv ; Wheeler v. 
 Howell (lS-)(i) 3K. it .1. 108. 
 
 Honey Payable Out of Land. These wonls inehidc all mortgages and securi 
 ties upon land. They also include a moitgage uisin a share in the jirocecilsof 
 land; Mowyei' v. Woodman ( 18(i7) L.R. 3 Kc|. 313, and a mortgage on canal 
 works ; Hodges v. Croydon (.'oal Co. (184(1) 3 Heav. 8(). lint a mortgagee of a 
 fund w'ill not lie restricted to six years arrears although the fui.d may be 
 invested on mortgage of land ; Smith v. Hill ( 1878) !t Ch. I). 143. In ac^tions 
 of foreclosure oi' redemption no more than six years arrears will lie allowed in 
 the absence of agreement or acknowledgment; McMicking v. (iilibons (1897) 
 ■24 A.R. .')8(); Coliiuhoun V. Murray (1899) ^(i A.R. 204: Hunter v. Nockolds 
 (1850) I Mac. & (i. 640, Sinclair v.'.Iack.son (I8r>4) 17 Heav. 4()-) ; Shaw v. John- 
 son (I8(i()) 1 Dr. and Sm. 412, although the interest mortgaged may be rever- 
 sionary : Vincent v. fioing (1844) I .1. & bit. 697 ; see Srnith v. Hill (1878) 9 
 Ch. I). 143 ; except against a defendant liable on a covenant ; Macdonald v. 
 McDonald (I88(i) 1 1 O.R. 187. If by agreement the interest has been converted 
 into prn)cipal, the Statute woidd seem not to apply, but if the agreement to 
 capitalize the interest formed part of the original mortgage transaction, it may 
 he invalid as a clog on the redemption ; see per Moss, .I.A., (johpihoun v. Mm- 
 ray (1899) 26 A.R. 219, but an agreement to that ert'ect was held to be valid in 
 Clarkson v. Henderson (1880) 14(-'li. 1). 348. Where a mortgagee has sold lands 
 under his power of sale he may retain out of the proceeds more than six years 
 arrears ; Kdmunds v. Waugh (I8(i6) L.R. I K(|. 418; Ford v. Allen (1869) l>.(ir. 
 "(65; Re .Maishlield, Marshfiehl v. Hutchings (1887) 34 Ch. 1). 721 ; but where 
 the surplus is payalilc to a sub.se(|uent incumbrancer or purchaser not personally 
 liable for the excess of arreiirs beyond six j'eiirs it is possible in the present 
 state of the law as to the price of redi^mption that the mortgagee would be 
 restricted to six years arrears. And where to prevent a sale under the powci-, 
 the amount claimed by the mortgagee is paid into (Jourt, he will only be 
 entitled to receive out of the fund, for interest, six years arrears ; McMicking 
 V. (iilibons (1897) 24 A. R. 086. 
 
 Express Trusts. The existence of an express trust formerly entitled personn 
 entitled to annuities charged on lanil the subject of the trust to the full amount 
 of arrears, but s. 24 now places such aiuuiitantsas to arrears on the same basis 
 as if no trust existed. 
 
 Exception. Where a prior encumbrancer is m po.ssession the right of a sub- 
 sequent (Micundirancer to all liis arrears is preserved if he takes proceedings 
 within one year after the prior encumbrancer's possession ceases. A prior 
 encumbrance within the exception is one which affects the estate upon which 
 the sub.se<iuent encumbrance exists : Vincent v. Going (1844) I J. & Lat. 697. 
 The reason of the exception is that the possession of the prior encumbrancer 
 excludes the subsetpient mortgagee from being entitled to the possession of the 
 land : Chiiniery v. Evans (18ti4) 11 H.L.tJ. LS6. If the owner of the eciuity of 
 redemption is in po.ssession the section has no application although he may be 
 also the assignee of prior charges attending the inheritance ; (Vi. 
 
 Mortgages. 
 
 Mortgagee's Title Extinguished After 10 Years. A mortgagee's title will be 
 extinguished at the expiration of ten years from the time he became entitled 
 to receive the money <ir from the last payment or acknowledgment provided 
 
LIMITATION OF ACTIONH. 
 
 683 
 
 I Hix vcai-' 
 except liy 
 at'criu'il 111' 
 lu liiiiil i^ 
 tH, <.;/., •! 
 siUiv othi r 
 k, <!. «40: 
 I (IH)I7) -H 
 
 (.ley(183(i) 
 
 HugllOH V. 
 
 t when^ nil 
 tntiito was 
 VVlifL'lor V. 
 
 and Mi'curi- 
 prdcciilH lit 
 ;e on innni 
 •tgageo of a 
 II. (1 may br 
 
 In actions 
 
 allowed in 
 lions (1897» 
 . Nockolds 
 nvi V. John 
 y be rever- 
 [ill (1878) !» 
 aedonald v. 
 n converted 
 ifreenient to 
 tion, it may 
 oun V. Miir 
 I be valid in 
 IS sold lands 
 in six years 
 18(19) ir.Or. 
 ; luit where 
 it personally 
 
 the present 
 ie would be 
 !■ the power, 
 vill only be 
 
 McMieking 
 
 tied persoHR 
 full amount 
 e same basis 
 
 ht of a sub- 
 pi'oceedings 
 (CM. A prior 
 upon which 
 . & Lat. ()97. 
 neumbrancer 
 iession of the 
 the eipiity of 
 'h he ma\' be 
 
 title will be 
 3ame entitled 
 ent provided 
 
 the land has not Iwen xacant during that time. When the land in vacant the 
 mortgagee is coiiHidered to be consfruetivclv in l)osHeHsion bv virtue of his 
 legal title: Delimey v. Canudian I'acitic Ry.'Co. (1891)21 (). U! II ; Uueknani 
 V. Stewart (1897) II Man. L. R. (12.5. 
 
 Action on Covenant. The eascH in Ontario settle that alllumgh the moit- 
 gagee's rii;lit to the land may be extiiigiii.Hhed he will still lie entitled to Ills 
 action u|)on the covenant unless that remedy is barred by 1{. S. O. e. 72 : 
 Allan V. .MiTavish (1H78| •_> A. I{. •_'78 : McDonahl v. Klliott (1886) 12 O. 1!. 
 98 : Macdonahl v. M.Diinald (18«(i) II (). K. 1N7. 
 
 Judgment. It was settled in Boico v. 0'lx)ane (1878) 'A A. K. 167, that a 
 judgtnent debt was not irrecoverable by virtue of this Statute, and the sub- 
 sc(|uent legislation has adopted this construction bv omitting the word " judg- 
 incnt" from s. 2.1: .Mason v. .Johnstone (1893) 20 A. R. 412. 
 
 Legacy. Uidess a Jega(^y is vestcrl in an executor on express trusts, a suit to 
 recover the same must lie brought within ten years from the time the right to 
 receive it accrued : Re Davis, Kvann v. Moore (I89l):i{;h. 1 19, see noti-s to 
 R. S. O. c. 72 aii/i; p. 298. 
 
 Present Right to Receive. A present right to receive is not in ordinary Kng- 
 lish the same as a present right toenforce payment. The moment that the time 
 of the coming into existence of a charge is ascertained the period of limitation 
 will begin to rini. Where, therefore, local inqtrovement lates became charged 
 on certain projierty the " present right to receive" was held to accrue on the 
 completion of the work and not upon its apportioinncnt among the frontagers : 
 Hornsey Local Board v. Monarch Investment liuilding Society (1889) 24 
 Q.B.I). 1. Where a mortgage contains an acceleration clause making the 
 principal due on default in payment of interest a present right to receive the 
 principal accrues on default in payment of interest : Reeves v. Butcher (1891) 
 2Q. B. .'ill. 
 
 Absence of Redemise Clause. If the mortgage contains nu redemise clause 
 entitling tlu' mortgagor to jiossession initil default and there is no payment or 
 acknowledgnuMit, time nnis against the mortgagee from the making of tlic 
 mortgage: Doe il. Roylance v. Lightfoot (1841) 8 NL /i W. .'>•'>',]; I)clanc\- v. 
 Canadian Pacific Ry. Co. (1891) 21 (). R. II. 
 
 Payment. A payment to be ellectual nnist bo made by a person bound or 
 entitled to pay, or by some person concerned to answer the debt : Lewin \. 
 Wilson (1886) 11 Aj))). Cas. ti.')9. Payments made by a mortgagor of one |ii-op- 
 crty will be suthcient to keep alive a mortgage on another property owned by 
 another mortgagor, who gave a separate mortgage as a surety for the same 
 debt ; Hi. ; and a payimint by a receiver appointed at the instance of tlie mort- 
 gagee over several mortgaged estates is sufficient to prevent time running with 
 regard to all the estates, though the receiver enters into possession of one 
 estate oidy, and others have l)een sold by the mortgagor and his grantees have 
 lieen in pos.session for over 10 (in the particular case 70) years : Chinnery v. 
 lOvans (1864) II H Tv. C. IL"). Payment In' a surety is suthcient: (lann v. 
 Taylor (18.")9) 1 F. & V. (mI. A payment by a person who has become boimil 
 to the debtor to pay is good ; as where asecond mortgagee took over the nuirt- 
 gaged property from the mortgagor's assignee in insolvency and made pay- 
 ments on the first mortgage, notwithstanding he had conveyed away the prop- 
 erty to a third person : Trust and Loan Co. v. Stevenson (1892) 20 A. R. ()6. 
 Payment of interest by a tenant for life is sufficient : Barclay v. Owen (1889) 
 (iO L. T. 222. Where a jieison is entitled as njitii! que ^r«.sY to the interest on 
 a mortgage and is als.i entitled as tenant for life to an eipiitable estate in the 
 land, her reccijit of the rents fioni the land will be suffii^ient to keep the mort- 
 gage alive notwithstanding that the routs were payable to one .set of trustees 
 and the interest to another set : Tophani v. Booth ( 1887) .S'l (Ih. D. ()rt7. A 
 payment bj- a mere stranger will be insuthcicnt : Homan v. Andrews (18.50) 
 1 ir. Ch. R. lOfi ; Chinnery v. Kvans (1864) 11 H. L. C. 115, or by a tenant to 
 whom the mortgagee gives notice ; Harhick v. Ashberry (1882) 19 Ch. 1). .■>H9 : 
 Cockburu v. IMwards (1881) 18 Ch. D. 449, 4.57. 
 
 The fact that the legal estate is outstanding in a first mortgagee will not 
 keep the title of a second mortgagee from being extinguished : Kiliiilc v. Fair- 
 thorne(189o) 1 Ch. 219. 
 
 In Newbould v. Smith (1886) .S3 Ch. D. 127, it was held that the a.ssign<e of 
 the equity of redemption would not be deprived of the benefit of the statute 
 
 MmSSSSBBmS! ' 
 
 
(r 
 
 mi 
 
 LIMITATION OF ACTIONS. 
 
 In' payments made by the mortgagor. This is directly opposed to l^uwiii v. 
 Wilson (1SS9) 11 App. Cas. (547, but tlie latttr cnso .settles t!ie Iiiw for tile 
 colonies : Trust and Loan Co. v. Stevenson (1H!(2) 20 A. U. 6<). Newimuld v. 
 Smith was affirmed Ijy tlie House of Lords on otlier grounds ; (1889) 14 App. 
 Cas. 42.., and the learned Lords in tlieir judgments carefully guai'ded them- 
 selves against adopting tlie pro])osition laid down by the Court below. 
 
 Foreclosure. A judgment of foreclosure will give a new starting point : 
 Heath v. Pugh (1881) Q.B.l). 345, 7 App. Cas. 235. 
 
 Dower. 
 
 An 
 
 agreement between the widow and the 
 heir, umler wliioh the les.si'e of the land was to pay the widow one-third of the 
 
 o 
 
 c 
 t 
 
 r: 
 if 
 
 r 
 
 Agreement in Lieu of Dower. 
 eir, umler wliioh the les.si'e of I 
 rent, prevented the running of the .Statute ; Fraser v. Ounn (187!)) 27 dr. 63. 
 
 Possession by Widow. If the widow remains in possession of the land with- 
 out having dower assigned, her po.ssession is not as dowress ; .Tolinston v. 
 Oliver (1883) 3 (). H. 43, and a-eordingly before 5lli Marcli, 1880, wlien s. 20 
 was enacted, a widow who had been in posses.^ioii with liei- infant daughters, 
 without ha ing dower assignee!, tor more ,han ten years, lost her dower en- 
 tirely. 
 
 Estates Tail- 
 Estates Tail. Pos.sesMon by a grantee of :i tenant in tail under a invey- 
 anee insuffieient to bar tli;.- issue will not, dm ing the lifetime of the t,.nant in 
 tail, be adverse .so as to ripen into a title under s, 27 : Rimingt< v. Cannon 
 (1853) 12C;. 1!. 1 ; Peiiny v. Allen (IS,);")) 7 P.M. * tJ Ut!) : Morgan v. Morgan 
 (1870) L. R. !0 Ki|. 99 ; but if the eunveyance is sufneient to bar the i.-!SUe,Tmt 
 not the pirties entitled i-i remainder, /. <-., to create a base fee, the re 
 mainders ovei' will, under s. 29, be barred at the expiration of tci years from 
 the time when a disentailing assurance, eH'ectual to bar such estate, might have 
 been exec- "^ed by the tenant in tail, unless such possession can be eferred to 
 an intervening "life estate; Mills v. Capel (1875) L. R. 20 Kq. (192. Where 
 time has CDinmenced to 'un against a tenant in tail it w'.I not stop at his 
 death, though his issue may be under <lisahility ; Murray v. Watkins (1890) 
 62 L. T. 79l>. I'o.ssession by a tenant in tail after he has forfeited his estate 
 for non-compliance with a I'ondition is not adviTse ; Astley v. Kssex (1874) 
 L. R. 18 Kq. 29'). 
 
 Equitable Claims. 
 
 Trusts. iS. 30 is confined to express trusts: "There must be i truttee in 
 whom the land is vested ; there must ht', an exjiress trust, by which I iinder- 
 atard the Legislature to mean a trust which arises upon the construction of 
 the written instrument, not upon any inference of law imnosing a trust upon 
 the consciene"; a (rust arising upon the words of tlie instrument itself. 
 Therefore these thieo things muse loncui' -there iuu.''t be land, there must be 
 the trustee of the land and tliere must be the n-.slni 71/1 //•»«/, for wliose benefit 
 in this resjieet the land is to be lield, and all that must be found n|)on the con- 
 strue tion of the instrument willi which yim have to deal," per Lord (Jairns, 
 Cunningham v. Foot (1878) 3 .\pp. (,'as. 974, 984. Kesulling trusts are not 
 within the section: Dickin.son v. Teesdale (18()3) I I). .1. & ,S. 52; nor are 
 trusts arising from tlu! acts of parties; .Sands t./ Thompson ( 1883) 22 (y'h. I). 
 617. Where a testator devised a house and all otiier his red estate to his ex- 
 ecutors upon trusts, but the cleclaraticni of the trusts <'\tended to the house 
 only and he died seized of two other houses, it was held that the executors 
 were express trustees for the heir-at-law ; I'atrick v. .Simpson (1889) 24 I). B. I). 
 128 : Salter v. t.'avnnagh (18.38) 1 Kru. k Walsh ti()8. An acting truster of a 
 will containing express trusts of realty not vested in him will be in the posi- 
 tion of an express trustee ; Life Assn. of .Scotland v. Siildal ( IS(iO) 3 I). F. & .1. 
 r>H. The tru:-it of the surpli. in the ordinarv form of power of sale is an ex- 
 press trust ; Re Bell, Lake \ . Rell ( 1886) ,34 t;ii. I). 462 ; Biggs v. Freehold L. 
 and S. (,'0. (1899) 26 A. R. 2,32. Th.aigh trustees may pay the rents of land to 
 the wrong person, their possession will not be adverse as against 'he real reslui 
 i/ue trunt : Lister v. I'ickford (1865) 34 Beav. 589 ; and the fact that a trustee 
 bf'lievcs that he is untitled lieiiefieially will not enable him to acipiire title by 
 
LIMITATION OK ACTIONS. 
 
 685 
 
 possession; Houghton v. Bell (189-2> 23 S.<: R. 4i»8 ; Wiight v. Bell (1890) 
 18 A. R. 25. '•'rustees in jKisseasion under a void deed will jiequire title by 
 length of poss( jsirn ; Chureher v. Martin (1880) .'W Cli. I). 312. 
 
 Where the ceHtui qw trunl and his trustee are ln-tli out of possession the ex- 
 istence of the trust does not prevent the operation of the Statute. 
 
 A conveyance by a trustee to a pnrcliaser for value gives a start to the 
 Statute, even if the purchaser has notice of tlie trust ; Atty.-Gen. v. Magdalen 
 College (18r)7)(>H. L. C. 18!». 
 
 Trusts for charities are within s. 30, and the Attorney -(ieneral stands only 
 in the same situation as those wiio are entitled to tlie benctit of the chaiity ; 
 Atty.-ficn. V. Magdalen College (1857) 18 Beav. 223, (t H. L. U. 189. 
 
 Concealed Fraud The principal case inider ss. 31 anil .32 are referred tn 
 ante p. (i77. 
 
 Disabilities. 
 
 The disabilities allowed for inactions to recover land or rent are (1) infancy, 
 (2) idiocy, (3) lunacy, (4) un.soundness of mind. Coverture and abscuce from 
 Upper Canada were disabilities until 1874 ; see C. S. U. C, c. 88, s. 45 ; 
 38 Vict. c. 16. 
 
 Mortgages. The disability clauses do not api)ly vo niortgage actions ; Kins 
 man v. House (1881) 17 Cli. "l). 104 ; Forster v. Patterson (1881) 17 Cli. I). 132; 
 When Faulds v. Harper (1882)2 O. R. 405, 11 S. C. R. «55, was before the 
 Courts the Statute in force was R. S. 0. (1877) c. 108, s. 43, and tlic wonls of 
 the section then read, "If at the time at whiih the right ... to bring 
 an acvion . . . frxt accrues ax aforcMiid,'' and the italicised words were held 
 to extend to all the sections of the Statutes respecting tiie recovery of land or 
 rent, and the English cases were therefore distinguislable. The case followed 
 the earlier decision in Hall v. Caldwell (1802) 8 U. C. L. .1. 93, which was a 
 decision upon C. S. U. C. c. 88, c. 45, which contained inatea<l of tlie itali('ised 
 words the words "as hereinbefore mentioned.' Tlie ollocation of the various 
 sections has been consistently niaintaineil in Can.iflian legislation. The 
 equivalent Knglish sections were 3 & 4 W. IV. c. 27, s. 10, and 37-38 V. 
 c. .57, s. 3, wliich precedid the UHirtgage sections. In the revision of 1887 
 8. 43 was restric'. ; to ^:ases arising under ss. 4, 5 and 6, with the object ap- 
 parently of adept I,' ' the Knglisii lulc. 
 
 Disability Must Exist wJieu Right Accrues. When time once begiiu to run 
 un.ler the Statute it never stops, notwithstanding subsequent disability of the 
 party entitled or of some person claiming under him. 
 
 Twenty years Utmost Limit. Under s. 44, twenty years is the utmost limit 
 allowed for disabilities. If a jjarty is under disability at the time his right 
 accrues, and contiiiues thereunder more tlinn twenty years, it seems a strong 
 thing to deprive him of a right which lie lias liad no opportunity of exercising, 
 but the terms of the section are unequivocal ; Hicks v. Williams (1888) 150. R. 
 228; Doe d. Corbyn v. Branston (1835) 3 A. & E. 63. 
 
 Succession of Disabilities. The same person may be under successive dis- 
 abilities such as infancy when the right accrues, and subsequent lunacy. In 
 such cases the right is preserved until five years after the removal jf the latter 
 disability, provided the twenty years is not exceeded; Borrows v. Ellison 
 (1871) L. R. () Ex. 128. But if a person under disability dies, five years from 
 his death will under e. 45 be the longest period by wliich the limitation of ten 
 years maybe exceeded, although his right may past to some other person 
 under disability. 
 
 Easements. 
 
 • ■ 
 
 Prescription. Uiuler English law prescription is properly applicable only to 
 incorporeal hereditaments. Every pr-.scription supposses a grant. For such 
 things as can have no lawful beginning nor be created at this day by any 
 manner of grant, or reservation or deed, that can be supposed, no prescription 
 is good ; Potter v. North 1 Vent. 387 cpioted by I.,ord Selbonie in Dalton 
 V. Angus (1881) 6 App. (.'as. 740, 795 Before the Prescription Act, 10 & 11 
 V. c. 5 (C. S. U. C. c. 88, ss. .36-41) the enjoyment must liave existi^d tine, out 
 of mind, which in England meant from before the reign of Richard I. But a 
 
o 
 
 r 
 
 r 
 
 I 
 
 r 
 5 
 
 53 
 
 686 LIMITATION OF ACTIONS. 
 
 i-eyuliir usage from 2() years not explained or contradicted was sufficient in 
 many cases to enable a presumption of a legal origin to be made ; Campbell v. 
 Wilson (1803) 3 East '294 ; 7 R. R. 462. The jury In such cases was directed 
 to presume a grunt, but this was so heavy a tax on the consciences and good 
 sense of juries that the Legislature intervened and made that possession a bar 
 or title of itself which was so before only by the intervention of a jury ; Per 
 I'aike H., Hriglil v. Walker (1H34) I C. M. & R. 211 ; 40 R. R. 336.' 
 
 " As of Right.'' Tlie easement nnist in all cases be enjoyed "as of right," i.e., 
 openly and in the manner that a person rightfully entitled would have iised it, 
 and not by stealth as a tiespasser would have done, nor by violence, nor by 
 occassionally asking permission; Tickle v. liiown (1836) 4 A. it- K. .36!); 
 Briglit v. Walker (1834) 1 C. .M. & R. 211, 40 R. R. 536 : Mills v. Colchester 
 (1867) L. R. 2C. 1'. 486 : l)e la Warr v. Miles (1881) 17 Ch. I). 53.-., 5!»1. The 
 enjoyment " as of right" is in other- words, of the kind required by the civil law, 
 nil- i-litni, iii'r ri, iiri- //rictirio ; Katon v. Swansea Waterworks Co. (1851) 17 Q. 15. 
 267: Wood v. Wand (184!l) 3 Kx. 748 ; Dalton v. .Angus ( 1881 ) 6 App. Cas. 
 740; Warin v. London and ("anadian Loan Co. (1885) 7 0. R. 706. Noea.se- 
 uient can be acciuired by the occupier of two tenements over either of them, 
 the enjoyment is in sucli leases not " as of riglit" but by virtue of his occupa- 
 tion of the .soil ; the law does not allow the co-exiatence I'f an easement in land 
 with the pos.icsaion of the land itself : Harbidge v. Warwick (1849) 3 Kx. ,'552; 
 Ladyman v. (irave (1871) L. R. 6 Ch. 763. The owner of two tenements there- 
 fon^ can have no easement over one in respect of the other ; Attrill v. PlatI 
 (1883) loss. ('. H. 425; Roe v. ,Si(hlons (1889) 22 Q. R. 1). 2.36. The mere 
 unity of possession of the ilominant and servient tenement ever tliougli tlu' 
 the possession of one should lie the po.sscssion of a disseisor will operate to make 
 the enjoyment not "as of right" so as to prevent the acquisition of an easement 
 under' tiie Statute; Innes v. Ferguson (1894) 21 A. R. 3j3, 23 8, C. R. 703, 
 and the saTue icsidt follows where tlu' same tenant occupies both premises; 
 Battishill v. Heid (1856) 18 C. H. 696 ; Outram v. Maude (1881) 17 Ch. 1). 391. 
 Where the owner of the alleged dominant tenement is also the owner of the 
 alleged seivient tenement inasmuch as he could not himself a('(iuire an ease- 
 ment over tlie servient tenement, neither can his tenants of the dominant tene- 
 ment ; Warburton v. Parke (1857) 2 H. & N. 64. The unity of possession of 
 a tenant under different landlords prevents the enjoyment from being "as of 
 right" ; Clay v. Thackrah (1839) 9 C. & P. 47. 
 
 TIic right nuist be as of right against the laiul, not against the individval ; 
 per Hramwell M., Warburton v. Parke (18.57) 2 H. & N. 70. Unity of .seisin 
 will entinguisli an easement or prevent its existence when the estates in the 
 i wo tenements are of an e(|ually " higli and perduia 'le ' ehara<'ter, or where 
 the estate in the ilominant tenement is less in qiiaiiliini aiid duration than the 
 estate of the same p'lson in the servient tenement ; Co. Litt 313 a, b. ; Re 
 Cockburn (1897) 27 O. R 4.m 459 ; Hai^kus v. Smith (1880) 5 A. H. .341 ; ami 
 wliere the estate in the servient teiu^ment is less than the estate in the dominant 
 the ea.semeut will be suspended during the unity of seisin ; /'). Rut such unity 
 is not the unity of possession, wliich pr-evt'tits enjoyment " as of right " under 
 the vStatute. \ tenancy for even a week of the servient tenement by the owner- 
 of tlie dominant tenement will stoj) the aci|uisition of an ea.sement under the 
 Statute ; Kngland v. Wall (1842) 10 M. & W. (i99 ; Warburton v. Parke (1857) 
 2 H. & N. ti4 ; or at any rate suspend it ; Stothanl v. Hilliard (1890) 19 O. R. 
 542. Unity of seisin is, however, in all cases /JC(/»<f /hriV evidfiice of posses 
 sion : Clayton v. Corby (1843) 5 (}. R. 415. 
 
 Knjoymenl permitted only .so long as some particular pin'po.se is served : 
 Arkwright v. Cell (18,39) 5 M. & W. 203 ; Mason v. Shrewsbury Hy. Co. (1871) 
 L. R. 6 Q. B. 578 ; VV'ood v. Waud (1849| 3 Kx. 748. or by occasional permis- 
 
 sion ; iMonmoutli Uanal > k). v. Hartord (18.S4) 1 C. M. & K. 614 ; 40 R. R. 
 648 ; is not "as of right." So contentious user is not "as of right'" : Katon v. 
 Swansea Waterworks Co. (1851) 17 Q. B. 267. An enjoyment by the occupier 
 of rights of pi'operty, e.g., to the use of an artificial watercourse oy(!r adjoin 
 ing pro))crty of which he is also tenant will be referred to liis enjoyment under 
 his tenancy ulietlier strictly authoriwd or not, or' to tlie friendly comity which 
 exists between landlord and tei,ant, and will not be " as of right " ; Chamber- 
 Colliery Co. V. Hop wood (188(''' 12 Ch. I). .'549. 
 
 Wl ,"re parties used water wli.'^h oaca])ed from the locks of a eanal, the enjoy- 
 ment was hehl not to be "as of right," but rather by permission, which the own 
 e. a might have withdrawn at pleasure ; StaHordshii-e Canal Co. v. Bii-minghnni 
 Canal Navigaticai Co. (18<i(i) L. R. 1 H. L. 254 ; and it is clearly settled that 
 the owner of a tlomirrant tenement having tin right to discharge water on a 
 
 
LIMITATION OF ACTIONS. 
 
 687 
 
 servient teRfiiictit cfiunot be cumiielled to continue to do so, altboagli the 
 owner of the servient tenement may make some nse of the water ; Arkwright 
 V. (Jell (1H:1!)) 5 M. & W. '20:1 ; Mason v. Shrewsbnrv Ry. Co. (1871) L. R. « 
 Q. n. 'uH : Oliver v. Lockie (1894) '2(i O. R. 28. Where a htiilding stood upon 
 land which the owner was bound on demand to macaflamize as a street he was 
 lield not to enjoy "as of right" an easement to the support of a wall for the 
 building; ToneV. Preston (1883) 24 Ch. I). VSil. 
 
 Where a parol permission extends over the whole 20 years the user is "as of 
 right," while user by occasional permission is not ; Kinloch v. Neville (1840) fi 
 M. & W. 795; Monnumth Canal Co. v. Harford (18:U) 1 C. jNI. & R. 614, 
 40 R. R. 648, b\it user originating in agreement may be ijrcsunied to continue 
 under a similar agreement; (Javed v. Martyn (I8(i,")) 19 (,'. H. N. S. 732 ; 
 Malcolm V. Hunter (1884) 16 (). H. 102. 
 
 Though an interruption will not. unle.is acquiesced in for one year, be sufficient 
 to prevent as a matter of law the accjuisition of an casenu'iit, an interruption 
 aciiuiesed in for less than a year is evidciue that the enjoyment is not " as of 
 light" : Katon v. Swansea Waterworks Co. (IMl) 17 Q. H. 27*1. 
 
 No prescrii)tive riglit can lie ac(|nire(I where there is any concealnunt and 
 jirobably none where the enjovnient has not been o|)en ; per Lord Blackburn, 
 Dallon V. Angus (1881) 6 Ai)p". Cas. 827. 
 
 Easements outside Statute. The Statute has not taken away any of the 
 modes of claiming casements whicli existed before ; Aynsloy v. ( i lover ( 1875) 
 L. K. 10 Ch. 283 ; Dalton v. Angus (1881) 6 App. Cas. 814 ;'.so that evidence 
 of user for 20 yars nuiy be evidence of a grant even in a <ase where the 
 statutory right cannot be ac(iuired under 30 years ; Hanmer v. Chance (1865) 
 34 L. .7. ('h. 413. And a hist grant will be inferred from 20 years u.ser of a 
 shaft for the free passage of air from a cellai' : liass v. (iregory (1890) 25 Q. B. 
 1>. 481. 
 
 Easements in Gross. To aciniire an easement under the Statute it unist be 
 apjiurtcnant to some other land. An easement in gross is not within the 
 Statute; Shuttleworlh v. Le Fleming (1865) 19 C. 15. N. .S. 687; Saunders v. 
 Latham (1856)4 W. K. 97. 
 
 There must be a Dominant and a Servient Tenement. Thcie can be no ease- 
 ment properly so called unless thcic be both a servient and a dominant tene- 
 nunt ; Ranjeh^y v. Midland Hy. Co. (1868) L. K. 3 Ch. 3(Mi, 310. The ease 
 ment must be connected with the dominant tenement ; Ackroyd v. Smith 
 (1850) 10 C. |{. 164. A dominant tenement in one of which the owner has an 
 easement or privilege over another tenement, which is called the servient 
 tenement. 
 
 Novel Easement. An eas.mu'nt must be of a known and usual kind. An 
 exclusive right to let boats on a canal caiuiot be granted so as to bind the land; 
 Hill V. Tu]iper (1863) 2 H. & C. 12i. So rights which are t<io vague and 
 uncertain <'annot be aeipnrcd by prescription siu4i as the right io use a way 
 for lauposes uncoiuieeted with tlu^ enjovnient of the land to which it is 
 annexed ; Aekroyd v. Smith (18,50) IOC. H. 164; Bailey v. Stephens (1862) 12 
 C. U. N. S. 91 ; or a right tu the free passage of air to a windmill ; Webb v. 
 Uircl (|S61) 10 C. B. N. S. 26.S, 13 C. B. N. S. 841 ; or to subterranean water 
 tlowing in no defined channel ; ('liasemore v. Richards (18.59)7 H. L. C. 349, 
 or the right to the access of air to a chimiU'V : Bryant v. Lefever (1879) 4 
 C. r. I). 172. 
 
 Requisiies of Valid Prescription. .\ presniption must be (1) certain (2) rea- 
 sonable (3) aii;iexed to land. A claim to caiiy away so much clay as may be 
 rec|inred at a certain kiln is bad ; Clayton \ ." (Jorby ( 1S43) 5 g. B. 41.5, ""he 
 .servitude must not be so large as to preclude the ordinary use of the servient 
 tenement ; Dyce v. Hay (18.")2) 1 Mae((. H. L. 305. The' riglit to the whole of 
 the coal under the land cannot )»• claimed by prescription, but the right to 
 take coal may be so claimed ; Wilkinson v. Proud (1843) II M. & W. 33. 
 
 InsufBciency of Enjoyment. Cntil the owner of the alleged dominant tene- 
 ment does some act with respect to the alleged servient tenement whicli the 
 owner thereof could, if so minded, stop, either physically or by action, he has 
 imposed no servitude thereon and time does not commcm c to run. The right 
 to make a noise so as to annoy a neighbor cannot be supporleci by user unless 
 during the jieriod of user the noise has amounted to an actionable nuisance ; 
 Sturges V. Bridgman (1879) II (!li. I). 8.52 ; and a prescriptive right cannot be 
 jiained by a riparian iirojirietor to use the water .so as to damage his neighbor 
 without proof of an unrea.sonable use of water to the injury of such neighbor 
 tor tw(Mity jears ; Kllis v. Clemens (1891) 21 O. R. 227, 22 0. R. 216. 
 
'' llflK^'' 
 
 688 
 
 2 
 
 ?5 
 
 
 u 
 
 r 
 5 
 
 73 
 
 LIMITATION OF ACTIONS. 
 
 'i'lit' following tcrniH of enjoyment iiit.' prescribed by 
 
 00 years. 
 40 yeaiH. 
 
 llight of way or 
 Right to water, 20 
 
 becomes indefeasible a elaini 
 
 Term of Enjoyment. 
 
 the .Statirte ; - 
 
 Profit (/ priiiilrr, '.W years, indefeasible aftijr 
 other easement ; 'JO Years, indefeasible after 
 years, indefeasible after 4(1 years. 
 
 Defeasible as Before- I'ntil the easement 
 thereto may be answered by |)roof of a grant, or of a license written or parol 
 for a limited ))eriod comprising the whole or part of the period of user, or of 
 the absence or ignorance of the parties interested in opposing the claim and 
 their agents during the whole time that it was cxenMsed ; Bright v. Walker 
 (1S:W) 1 C. .M. it R. 211, 40 R. R. oSti. If it be shewn that it would have 
 been iiltni n'n.i of a railway company to grant an easement over their land the 
 ea.sement whicli wonhl otherwise have been acfjuinMl by 20 years enjoj nient 
 will be defeated ; Re t'anada Southeiii Rv. Co. and Lewis ("1884) 20 C. L. J- 
 241 : Canada Southern Ry. Co. v. Niagara Falls (1892) 22 O. H. 41. Where 
 during the first lialf of tlie period of enjoymetit of an easement the servient 
 tenement was unoccupicfl. or in a state of natuie, and its owners were out of 
 the country, the prescriptive right was not maintained ; McKay v. Ilruce 
 (1891)20 0. R. 709. Tlie mere knowledge of a tenant will be insutlicient ; 
 Daniel v. North (1S09) II Kast '^T2 ; unless for such a length of time that die 
 knowledge of the landlord may be presumed; .Jamieson v. Coulter (187.'{) 21 
 W. R. 8.')2 : (iray v. Bond (1821) 2 Bred. & B. ()67, 2:? R. R. r>;jO. 
 
 Enjoyment imder Deed or Writing. The time duiitig which the enjoyment of 
 an easement is by some con.sent or agreement expressly nuide or given for that 
 purpose by deed or writing will not i)0 reckoned in the time neces.sary to 
 acquire a prescrii)tive right altlumgh the easement has been enjoyed for the 
 full period which otherwise would make it in<lefeasible ; ss. .'{4, 3.5. / The deed 
 or writing need not be signed by the owner of the servient tenement. A docu- 
 ment signed by the owner of the dominant tenement is sufiicient ; Bewley v. 
 Atkinson (18V9) 1.3 Ch. 1). 28.3 ; but a mere exception of the easement out of a 
 grant of the dominant tenement is not an agreement preventing the acquisition 
 of the easement by prescription ; Mitchell v. Cantrill (1887) .37 Ch. D. 56. 
 
 Profit a Prendre. S. .34 applies to a profit k prendre which is a right to take 
 something out of the soil of another and is not an easement ; Manning v. Was 
 dale (1836) .5 A. & E. 764. The right to cut down and carry away trees or to 
 take stones and sand, or to cut and carry away litter is a profit .'i prendre ; 
 Bailey v. (Stevens (18(i2) C. B. N. S. 91 ; Constable v. Nicholson (1863) 14 C. 
 B. N. S. 2.30 ; l)e la Warr v. Miles (1881) 17 Ch. T). ■').35. The right cannot be 
 claimed on behalf of a largo and indefinite class such as the owners and occu- 
 piers of several tenements ; Gatewards case (1607) 6 Rep. ti9 b. ; Tilbury v. 
 Silva(I890)45Ch. D. 98. 
 
 Ways, Easemants and Water Courses. S. 35 includes all easements properly 
 po called except the right to light ; Dalton v. Angus (1881) 6 App. Gas. 740, 
 798 ; Simpson v. Godmanchester (1897) A. C. 696, 709. A right to lateral 
 support from adjoining land may bo acquired by 20 years uninterrupted enjoy- 
 ment for a building proved to have been newly built or altered so as to 
 increase the lateral pressure at the V)eginninp of that time ; and it is so 
 acquired if the enjoyment is peaceable and without deception or conceal- 
 ment, and 80 open that it nuist be known that some support is being 
 enjoyed from the building; Dalton v. Angus (1^*^!) 6 App. Cas. 740; seo 
 Backus v. Smith (1880) 5 A. R. ,341 ; and such a right may be enforced by tho 
 tenant; McCann v. Chisholni (1883)2 0. R. 506. The ways covered by tho 
 section are private rights of way and not public highways. Nc) private easement 
 by prescription can be acquired over a public highway; Warin v. London and 
 daniidian Loan Co. (1885) 14 S. C. R. 2.32. A more extended right cannot bo 
 acquired than that which has been enjoyed for 20 years Buell v. Read (1849) 5 
 U. C. R. 546 ; McNab v. Adanison (18.->0) 6 U. C. R. 100 ; Rutlaii v. Winans 
 (1856) 5 C. P. 379. A right of way is connnensurato on'.y with tho user, so 
 that user for carriages will not prove a right of way for cattle ; Ballard v. 
 Dyson (1808) 1 Taunt, 279, 9 R. R, 770 and an user for agricultural purposes 
 will not support an easement for mineral purposes ; Bradburn v. Morris (18/6) 
 3 Ch. D. 812. Such a right cannot be increased by imposing on the servient 
 tenement an additional burden, so that a right of way to one place cannot oe 
 used for the purpo.so of going elsewhere ; Williams v. James (1867) L. R. 2 C. 
 P. 577. \Vhere a road had been iminemorially used to a farm not oidy for 
 usual agricultural purposes, but in certain instances for carr3'ing building 
 materials to enlarge the farm-house and rebuild a cottage on the farm, ami 
 for carting away sand and gravel out of the farm it was held that k 
 
LIMITATION OF ACTIONS. 
 
 f)8ft 
 
 light of way for carting the nmUiiials i(M|iiireil for Ipiiildiiij; .1 iiiiiMber -if now 
 housoH on tlio land wan not estalilislicd ; Winibk-don ancl I'litiioy ('onHnrva- 
 tors v. Dixon (1875) 1 Cli. 1). .S(i2. '{'\n: (jucHtion wlietlii'i- an alk'ged oxi!e.4Mivo 
 U80 is in tho ordinary and roaHciiialilu uho of the land to which the right of 
 way oxistH, or is a niL-r* colorahlo uso of tlic way for purposes other than 
 thosi; to which tho righS extcnils, ia for the jury ; Skidl v. • Mcnister ( IS(i4l 
 16 C.B.N.S. SI : VVillian s v. .lames (1S«7) L.K. -2 C.P. r," ■ Flohinson v. I'ur- 
 doin (18!)!))'20 A.R. !ir), 1 JC.L.T. 374. (Opening a small shop in a clwi^lling houso 
 to which a way exists docs not render the user of the waj' excessive : Sloan v. 
 HoUiday (187-1)30 L. T. 7!)1, hut by 'hanging a cottage into a tan yard a right 
 of way restricted to the pui poses of the cottage would he extiiif^'uished ; Hem- 
 ing V. Murnett (IS.VijS Kx. 1!«. 
 
 Tho right of diverting or penning hack water which, in its natural courao, 
 would How over or along the land of a riparian owner may he aef|uireil l>y 
 prcHcription under tho Statute ; Mason v. Shrewsl)ury Ry. Co. (1871) li. R. B 
 Q.B. .'587 ; Stothart v. Hilliard (I8!»0) li» O.R, rA± The right will he continod 
 to the height of water actually used nnd will not extend to the height of th(^ 
 dam ; McKechnie v. McKeyes (18;V2) 10 U.CJ.R. .37. The right to use bracket 
 hoards on a mill dam may be aciiuired ; Camiibell v. V'.)ung (1871) 18 (ir. 97. 
 A plainly defined eliaiiiiel (jf a piirinanent character through which water Hows 
 either from a perennial liv:ng source or periodically from natural sources is (i 
 water-course ; Boer v. Stroud (1888) Ml O.K. Id ; .Arthur v. (Iraiid Trunk Ry. 
 (1894) 20 O.R. .37, 22 A.R. 80. A right to discharge rain water from a liou.se 
 upon tho adjoining land may ho aci|nired b\ 20 years user : Thomas v. Thomas 
 (1834) 2 CM. & R. 34, and will not be lost liy raising the house 111 the absence 
 of evidence of increased .servitude ; Harvey v. Walters (1873) Fy. K. 8 C. 1'. 1(12. 
 But a right to have rain fall from the eaves will not justify the erection of a 
 spout so as to dis<ihargo the water in a body ; Reynolds v. (Marke (1725) 2 I.d. 
 Raym. 1399. A liglit to pollute a stream may be acijuircd ; Ra\endale v. 
 MoMurray (1807) I-. R. 2 Cli. 790 ; but the injury must be ))eiceptiblo for the 
 full period ; (ioldsmiil v. Tunbridge Wells Commissioners ( 18(i()) L.R. I Ch. 349. 
 The right to discharge xewago through a. drain may also be acquired ; Attornoy- 
 (Jcnoral v. Dorking (1882) 20 (Jli. D. 590. Prescriptive rights may be acqu.rod 
 in permanent artilicial watercourses ; Raineshur I'crshad Narain Singh t. 
 Kooiiji Reliari I'attuk (1878) 4 App. Cas. 121. 
 
 Whether a right can be a^iuired to tho access of air to the dominant toiio- 
 niont under the Statute must now be deemed un.settled. A number of oasoH 
 conimeneiiig with Webb v. Bird (1803) 13 (J.B.N.S. 841, ar.d followed by 
 Bryant V. Lefever (1879) 4 C.IM), 172, Harris v. l)e I'inna (1880)33 Ch. I). 
 2;W, and (Jhaslcy V. Ackland ( 1895) 2 Ch. .380, had dcculerl that the right to 
 tho access of air did not ';oine within the act, l)ut on the latter cnso comi.'ig 
 before the House of Lords, several of their Lordships dissented from tho rea- 
 soning and decision of tho Jourt of Appeal, but a siittlcmcnt being eflfected no 
 judgments were delivered ; see (1897) A. C. 1.55. 
 
 Effect of Being Indefeasible. When rights have been enjoyed for the roHpec- 
 tivo periods of 00 and 40 years as the case may !>(% they are indefeasible not- 
 withstanding any disability of the owners of the .servient tenement f''om tinio 
 to time, save that a reversioner n'ay within 3 years after the termination of. ^ 
 ostato for life, or a term of years exceeding 3 years, resist the claim under ci.4L 
 In two Irish cases, Beggan v. McDonald (1878) 2 L. R. Ir. .")()() and Kahoy v. 
 Dwyer (1879) 4 L. R. Ir. 271, it was held that an enjoymont by a tenant of n 
 right of way over land leased by another tenant from the same landloril for liie 
 indefeasible period, gave him an ea.sement against tho tenant though not 
 against tho landlord. In Harris v. Do I'inna (1880) 33 C;h. 1). 238, 253, Chitty, 
 J., thought that the Irish cases should, if they would have dis|)ose(l of the 
 case, bo followed. But an easement for a term of years though capal)le ol 
 being created by grant cannot ho gained by prescription. Unless the enjoy- 
 mont gives a title against all it will givo no title at all ; Bright v. Walker 
 (18.34) I CM. k R. 211; Whcaton v. Maple (1893) 3 Ch. 48; Stothard 
 V. Hilliard (1890) 19 O. R. .')42. A tenant (Ninnot acquire an easomont 
 under s. 35 against other property of his lar.dlord ; (iarford v. Motlatt 
 (1868) L.R. 4 Ch. 133. Ka.somcnts of light for a building were capable 
 of hi-ing ttO(|uired by a tenant for a long ti^rm against his landlord ; 
 Frewen v Phillips (1802) II C.B.N.S. 449 ; Mitc^hell v. Cantrill (1887) .37 VU. 
 U. .50 ; Rohson V. Kd wards (1893) 2 Ch. 140 and against a landlord by user 
 whilo tho lands were occupioi! by his tenant ; .Simper v. Koloy (1802) 2 .1. AH. 
 B5!i ; but it is to bo observed that the enjoymont of the easoment of light was 
 T 1 
 
 % 
 fe 
 V 
 
GdO 
 
 LIMITATION t)K ACTIONS. 
 
 o 
 
 r 
 
 CD 
 S3 
 
 not ici|iiirfil 1(1 l>c "us of right "; London (Joi-jxtration v. PcwIcioi'm Oo. 1 1H4'2) 
 •> M. ti Iti.li. Klit; Tniscott V. Meiclmiit Tiiilor'H Co. (1856) II Kx. srifi. 
 
 Statute Operates as a Conveyance. Whon a picscriptivi; right suoii iu< Ihi; 
 Stiilutf riMHiircs is shown the rlainiaiit is (entitled to .siircceil without tho 
 t'xt'rcisc of iuiv iliHcretioM on tlic part of tlif jur.v ; the Statute soivos as a kind 
 of parlianu'iilarv convevanci.' of the l^aH(•nu'nt ; McKechnic v. MoKeves ( 185'2) 
 Id V.C.H. ;i7, .I'ti. 
 
 Light. Hctorc iht- I'lrsiriplioii .\(t a coiisfiisual origin of the riglit to tlic 
 actress and use of liglil for windows was pii'.sunicd from ii() years user : [x)wis 
 V. Price ( I7(>1 I 2 Wins. Saund. .".OJ : (JroKs v. Lewis (1,S'_'4) 2 15. ^ ('. 08!). The 
 easement in siieli a ease was negative in it.s eharac-ter lieeause unlike a right of 
 way it did not hegin in aits of enjoyment whi<'li were /iriiiin/nrit an enei'oaeh- 
 ment upon tlie neighlior's soil : per Howen. .1., Ortlton v. .\ngus (IHSI) (> J\]'\>. 
 Can. :>'4. 
 
 IJy tlie I'resei iplion .Xet. thi' right to light was until 1,SS(I, given h.v poMJtive 
 eiiaetnu^nt, and it was saiil iiy Lord Westhury in Tapling v. dones (lS(i5) II 
 II. L. ('. 'JiMI, that it thereby lieeame matter //(/-w /«i.i!//n' and did not re(|uire, 
 and tlieief(jre ought not to he icsted on any i)resunij)tion of giant or lietion of 
 a lii'cnse. In sulisei]iient i-ases, however, it was held that the Aet had not 
 taken a.wav anv of the fornuM- modes of obtaining the right : Aynslev \. (Hover 
 (IS7.)) L.R". l(l('h.-.'S:i,an.lsee Xorfolk v. Arlail hnol ( INMII) .".( M'.I). 8!)(l; Keeles- 
 ia'^Iicid Conimissioners V. King(l!S.S(h 14 Ch. l)iv. 'JK}. The grantee of a house 
 has a /);■/»)'( I'lirii right to light as against the grantor; Uroomlield v. Williams 
 (1897) 1 ('h.'tUI2. In liuridiam v. t larvey ( IS7'.I| "27 <lr. S(l, the C.ant said, 
 " it is worth.v of eonsidcratioii whether any siieh provision as is nuide hy our 
 Aet (H. ^S. O. 1877, <■. lOS) is suitable to the conditions and exigencies of a 
 Canadian Town," and in the following year' the ))resent section H() was enacted 
 and the ac(|uisiiion of the right to light, by prescription, thenceforward be- 
 came impossible. Claiming nndei- a lost griint is not claiming by presci-iption. 
 and it may be that a .jury ma\ still properly be directed to presume a grant 
 upon (iiMof of enjoynu'iil for 'it! years. Sui'h prcsumiition ought ti' be made if 
 the e'ljovment has, for twenty years, been consistent with a grant ; Malton v. 
 .Vngns (ISSl) (i App. Cas, 7'4.">". 7."d, 7">t», 7t)(l. 771. 77i>, SK, 828; (ioodnmn 
 V. .Saltash (lS8-_>) 7 App. Cas. (\Xi : I'hillips v. Ilalliday (18!tl) A. C. 'J28. 231. 
 
 Enjoyment must be next before some Action. To acMpdre a light under the 
 Statute, t hi- enjoyment must have been for the necessary period next before 
 the commeiuement of sonic suit in which it is brought in i|iieslioii : Hunt v. 
 Hespeler (lS.-,7l (i C. 1'. 2ti!l : .McKechnie v. .McKeyes (IS.-)2) 10 V. C. K. 37. 
 An.v action is sudicient, the section not being limited to the jiendiiig action 
 only: Cooper v. Hnbliiiek llS(i2) 12 C. H. X. S. 4o(j. An action which was 
 cimi|)rniui.sed is suHicient : Heylagli v. Cassidy (18(18) 10 W. H. 40;j. An 
 action therefori. has to be brought before the title to the easement is perfect ; 
 Wrigiit V. Williams (IH.SII) 1 .M. & W. !»S. Where the enjoyment extended 
 down 111 a period within four years from the action, a title under the Slatiite 
 had not lieen ae(|iiireil ; I'arUcr \. Mitchdl 1 184(1) II A. * I'",. 788. ICnjoyment 
 tor the necessary |)eriod licfore the act complained of will be iiisnillcient if no 
 action is brought until alter the e\|piratioii of a vear from the cessation of the 
 enjovnienl ; Ward v. Itobins ( 184(11 1.1 M. ,^ W. 242: Hichards v. Krv (I8;{S) 
 7 A."& K. 7(»7. 
 
 Where in .in action of trespass, the dcfcndanl proved user for 48 years be- 
 fore action, with the exeejitioii of the last 14 months, his defence of a right of 
 way under the Statute was held not to be sustained; Lowe v. Carpen- 
 ler (1851) K\. 82."). So long as the requisite period has elapsed from 
 tho first enjiiyment at the time of the action, tlie right exists iiotwith 
 (Standing that it niav have been interrupted before that period expired 
 :\Tid the action is in respect of such interruj)tioii unless the interrup 
 tion h^s been aeipiieseed in for one year. Enjoyment theroforn fur any jinriod 
 in excess of U) years will confer .i right under ». .S.) though uclUttUy obstructed 
 during the 2i'ih year, so long as an action is brought after the 20 years have 
 elapsed and within one year from the interru])tion ; Flight v. 'I'homas (1840) 
 U A. & K. 0S8, SCI. & I". 231 ; Ihinihuii v. tiarvey (1S79) 27 Or. SO. Hut 
 nllhough an eth-etual interruption may be impo.ssible, the cunl, will not |)ro 
 tent the inchoate riglit by injunetion during the 20th .year ; Bridewell Flospi 
 tal V. Ward (18!)2) 02 L. J. Ch. 270 ; Katterfioa v. Oonimissioncra of iscwnrs 
 (1895) 2 Ch. 708. 
 
MMITATION OF ACTIONS. 
 
 691 
 
 Enjoyment must be Continuous. Tlie whole leijuisile 'period luiist be next 
 liefon- the iiction. Hunt v. Hewpelev ( 18571 •> <". P. -69. Two periods eanli 
 lesR than '20 veins Imt Kopiiiated from one aiiotliei' liy unity of |His.se.saioii 
 cannot lie added together: Ke Coeklnnri (ISiHl) '27 0. K. "4.50 : Onlev v. 
 (iardiner (ls:W) 4 M. & VV. 4!)(i : BattiHhill \ . Reid (18.)0) IS (*. h. l\m.' A 
 contrary opinion was expressed in Ladynian v. (Jrave (1871) L. K. ti (!h. 703. 
 These cases ririist he distirifniislied from those luidei ss. 40 and 41 where the 
 nnniinj; of the Statute is in a sense interiiipted hy the fact that tlie owner of 
 the servient tenement is under disability or hy the existence of a tenancy for 
 life or years thereof. In the case of a discontinuous easement like a right of 
 way it is exlrenujly ditlicidt, if not im|)ossililc. to say exactly what (cessations 
 of actual user arc. and what are not, consistent with such an actual enjoyment 
 tor the full period of '2(1 years as the Statute re<(uires to establish the right ; 
 llollins V. Verney (1S84") i:t Ijl. 15. 1). :tU4, :108. It «as .said in sonic of the 
 earlier cases that scjnic cnjoMucnl iii each year of the ic(|uii'cd |)eiiod must be 
 shewn : I'arkcr v. Mitdiell' ( 1840) II A. &" K. 78S : De la Wan- v. Miles (1881) 
 17 <,'h. 1). 5U5. .">!W. |{ul the cases now establish that actual enjoynu'iit for 
 till' full period may he established by evidence wl)ich falls short of proving 
 actual user for the whole of that peiiod without anv cessation : Flight v. 
 Thomas (18401 II A. >St K. 088. S (H. \ F. •2.S1 : llollins v. Verncy (1884) l:? t^. 
 I?. I). H04, ;107. Kvidence proving u.scr nioic than '211 years befoie action is 
 admissible though r i evidence can be given ol enjoyment during the year the 
 re.pusite pi-riod must havi' coinmcnceil : Lawson v. Langh'y (18;{t)) 4 .\. & K. 
 .H(I0. and cessation of the >isei' of a watercourse during three year's because no 
 water- w. IS their luiining therein followed liy u.ser for 111 years, will not yirv- 
 vent the riglit fi'om )(ciiig ac(|uired ; Hall v. Swift ( 1838) 4 Hiirg. N. ('. IWl. 
 W'licie thei'e was a eessatum of the irscr 18 years befoie action of 
 h right of common of pasture for "2 years, because thi' owner had 
 then no commonable beasts, il was held that the cessation of enjoy- 
 ment was a'l'counled for in such a way as to justify an inference 
 that the right was actually enjoyed for the re(|uisite period ; (.'arr v. Foster- 
 (I8t'21 H Q. B. .'181. Whether the teiiiporaiy non-user occurs at the 
 licginiring or- end or it any jiarl of the statutory (ler-iod is'immaterial. But the 
 totid alisciK-e of user for any year will be fatrd unless cxplaini'd irr siu-li a way 
 as to warrant the inference of continued actual enjoyment notwitlrstindiiig 
 such temporary non-user-; Hollins v. Verncy (1884) \',) (). B. I). .'104. User- of 
 a wav at long intervals, namely on three occasiorrs the tirst '24 ,\cars before 
 ,-u-tion, the second 12 years thereafter and the third in the year before action 
 is not such an unintc-i i-u|)lcd cnjovment as is ncecssarv to ai-cprirc the right : 
 Holliii'- V. Vi-rney (18S;!) 11 (). B.' I). 715, VM). B. I).' :{04. 
 
 Interruption. An inten-iiption is an adverse obstruetion aci|uiesced in for 
 rrroic than a year, not a mere discontinuance of user : Carr v. Foster (1842) It 
 i).H. 581 ; McKechnie V. .McKcycs (1852) 10 L'.C. K. .ST. It may be the act of a 
 stranger: Davies v. Williams ( ls."i2) 1(1 •,».. B. 54(>. .-\ir interr-U()tioir in fact 
 which does not exist a ye.-ir, 01 iv not aiu|uie.sced in. iloes not deslrov the eon- 
 tiniiit\ of thecnjoymeiil : FliLdil v. Thunias ( 1840) II A. .t K. 688, 's(; I. k V. 
 "231. If the interruption is of a pcrmaneni character, the orrus is oir the party 
 claiming the casement to shcrw tliat it did not in fact last for a \eai-, but if it 
 is a llui-tuating obstruction, not likely to be of a pernianciil elmracter, or one 
 which from its \ cry nature- is not of a permanent cliarac-tei, it lies upon the 
 servient owner to show that there has been an interiription existing and 
 acciuicsccMl in for- iiioretharr a year- : I'reslarrd v. Bingham ( 1880) 41 (.'li. 1). '208. 
 Acvpiiescence in an interruption t.n more than a yc^ar jH-cvenls any right from 
 being aecpiired under the St.itutc : Tilbury v. "Silva (I8OO) 45" Ch. I). 08; 
 I'arker v. Mitchell (1840) 11 A. Jfe K. 788; Lowe v. Carpenter (1.S51) (i K\. 8'2,5. 
 Whether cii- not there Iras becii aec)uiesccnc-e is a c|aesticju of fact for a jury. 
 It is not necessary for an action to be brought within a yeai- to prevent the 
 loss of the right. Where correspondencn was going on and the jilaintitl' was 
 protesting ag.vinst his rights being interfered with, it was held that the jury 
 might infer that he had not aoc|uiesced altliougli t lie obstruction had existed more 
 than a year; IJennison v. Carlwriglit (1804), 5 B. iVS. 1 ; and the same decision 
 was reac;h(\d where the protests were merely verbal ; (ilover v. Coleinan 
 (1874) L. K. IOC. J'. 108, A promise by the servient owiiiir to remove the 
 obstriic:! ion will keep the right ilivo at least for a year from I ire promise ; (iale v. 
 Abbott (1.802) low. H. 74S. It will be observec'l that the year begins only 
 when the jiarty interrupted h.is notice: of the interruption, and of liic person 
 making or authorizing the same to be made. The mere existence of tho 
 pbyninal obstruction without notiof) c)f by whoso authority it is made in 
 
692 
 
 M.MITATION OK ACTIONS. 
 
 O 
 
 c 
 
 0. 
 
 r 
 
 I 
 
 r 
 55 
 
 7:5 
 
 thorofore insutficieiit : Sediloii v. Hank of Bolton (1882) 19 Cli. 1>. MSI. Tay 
 moiit of rent for the tisu of lights was licM not to ho an interruption if Iho 
 oaHCMient of light; I'lasterors' Co. v. Paiish (Jlcrks' Co. (18.51) '20 L.J. V,\ :«12; 
 and a payment maile for tiie nse of a rigiit of way hy a tenant of the doiniiiant 
 toneniont, without tlie knowledge of lii.s landlord, will not defeat thi> right 
 which the latter has, liv enjoyment for the full period, aeipiiicd l)efiir'> the 
 payment ; Kcr v. Little ("iSltS) '2.-, A.U. .387. 
 
 Pleading. Tlie party claiming a riglit under the Statute nnist plead that his 
 enjoyment has heen as of right ; Buel v. Ford (18(50) 10 (;.!'. '200 ; Holford v. 
 Hankinson (1844) 5 Q.U. 584. Under .s. 38 a denial that tiie enjoyment wa.t 
 " as of right" is .sufficient to raise the issue of unity of possession ; Onley v. 
 (fardiner (18.38) 4 M. * W. 490 ; Outram v. Maude (1881) 17 C'h. I). .301, 40.-> 
 or that the enjoyment wa.s hy occasional license; Beasloy v. Clark (1830) '2 Hing 
 N.C. 70.'), but a license covering the whole period of enjoyment should ho set 
 up specifically ; Tickle v. Brown (1836) 4 A. & K. .309. The license sliouUI Ix- 
 shown to he coextensive with the right claimed ; Colchester v. RobertH (18.38) 
 4 M. & VV. 709. If the intervention of a life estate or term of years is relied 
 <m it should be specially pleaded ; Stuart v. Spence ilS.W) 10 U. ('. H. 48i) : 
 l*ye v. Mumfonl (1848) 11 Q B. OOti. It was formerly necessary to pre8cril)e 
 in a que fatate., i.e. by pleading that A.B. , tlie owner of the fee, and all those 
 whose estate he had, had from time immemorial the easement. S. 38 (2) makes 
 it sufficient to allege the enjoyment as of right by the occupiers of the domin 
 ant tenement for the reipiisite period ; Smith v. Wallbrjrlge (1 8.(0) GC.IV .324 ; 
 Bechtel v. Street (1801) 20 U.C.R. 1.'"). All disabilities must be .specially 
 pleaded. To provide against statutory defences defeating the right, it is 
 proper to set up the right as arising under a lost grant : Bailey v. StoviMis 
 (1802) 12 C. B. N. S. 91 : Bass v. (Jregory (1890) 2.5 Q.B.D. 481. It will al.so 
 be found advisable to plead both tl'.e iiualitiod and indefeasible lights by 
 alleging enjoyment for the 20 or 'Mi and 40 or 00 years ; Stamford v. Oiinbar 
 (184;5) 13 M.'& \V. 827. 
 
 Disabilities. The following disabilities are allowed in respect of enjoymcn(^■ 
 for the shorter jieriods, (1 1 infancy, (2) i<liolcy, (3) lunacy, (4) trnaney f<ir life : 
 Hale v. Oldroyd (1840) 14 M. >t \V. 730, (5) pendency of an action. It is pos 
 sible to suppose cases in which the disabilities have not been removed when 
 the longer period expires. In such cases the right is indefeasible, notwith 
 standing the disabilities under .s. 10 except in the one case of a tenancy for life 
 of a servient tenement under s. .35 and a reversion expectant thereon. Knjoy 
 meiit botli before and after the disability aro.se may be takiui into account e.g. 
 25 years before and 5 years after a life estate ; Clayton v. Corby (1843) 5 Q. B. 
 415. This does not mean that two discontinuous periods of cnjoynient may bi' 
 united but that the jicriod of continuous enjoyment must l>e extended by (1m- 
 length of the period of di.sal)i!ity ; Onley v, (Gardiner (18.38)4 M. &, W. 490, .500 
 A lease for more than 3 years will not prevent a right from being acciuired by 
 20 yciirs enjoyment, but the right will not become indefeasible at the oxpira 
 tion of 40 years if the rcvoisioncr within 3 years from the termination of the 
 term resists the right : I'alk v. .Skinner (18.53) 18 Q. B. 508. The right to 
 exclude a tenancy for life from the term of 40 years is given only to a rever 
 sioner, not to a remainderman ; Symons v. Leaker (1.885) I5Q. B. I). (529, and 
 the pleading should show that the party is entitled to the expectant re' ersion : 
 Wright v. Williams (1830) 1 M. & W. 100. Tlio privilege given to a rover 
 sioner extends to his tenant, even to a tenant at will ; Laird v. Briggs (1880) 10 
 Ch. \i. 440, see S. C. 19 Ch. 1). 22. In the English section corresponding to 
 8. 41 the words in the .wcond line are " way or other conve.uirni watercouPHe.'" 
 Our Statute has adopted what was evidently intended, see Laird v. Briggs 
 (1881) 19 Ch. 1). 22, 33. If under s. 40 or 41 an easement is not acquired 
 against the owner of the fee. no easement exists, as an easement under th. 
 Statute must be absolute and not for a term of years ; Bright v. Walker (18341 
 1 C. M. & R. 211, 40 R.R. .530 ; Wheaton v. Maplo (1893) 3 Ch. 48 ; Stothart 
 ■. Hilliard (1890) 19 O.R. 542. 
 
 Crown Bound by Statute. Kxcopt in unsurvoyod territory the Crown i> 
 bound by rights acquired under ss. .34 and .35, Bowlby v W(todIey (18.52) 
 8 U.C.R. 31.t. It was never bound a.s to easements for the access of light : 
 Perry v, Karnes (1891) 1 Ch. 085 ; Wheaton v. Maple (1893) 3 Cli. 48. 
 
••-'. I'ay 
 III if tliti 
 
 (loiiiiimnt 
 
 093 
 
 CHAPTER 134. 
 
 An Act to amend the Law of Vendor and Purchaser 
 and to Simplify Titles. 
 
 HKR MAJESTY, by and with tlie advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts 
 as follows : — 
 
 i. This Act may be cited a.s The Vendors and P^irchuHert Short tiu«. 
 Act. 
 
 KiKhta of 
 vendors »nd 
 purchasers is 
 contracts of 
 Hale of lands. 
 
 Recital, etc., 
 20 years old, 
 of facts, etc. , 
 prima facie 
 evidence. 
 
 Memorials of 
 
 diBchar((ed 
 
 mortgai^. 
 
 !?. In the completion of any contract of sale of land made 
 after the Idth day of February, 1876, the rights and obliga- 
 tions of vendors and purchasers shall (subject to any 8tij)ula- 
 tion in such contract to the contrary), be regulated by the fol- 
 lowing rules, namely ; — 
 
 1 . Recitals, statements and description of facts, matters and 
 parties contained in deeds, instruments, Acts of Parliament or 
 statutory declarations twenty years old at the date of the con- 
 tract, shall, unless and except so far as they are proved to be 
 inaccurate, be taken to be sufficient evidence of the truth of 
 such facts, matters and descriptions. 
 
 2. Registered memorials of discharged mortgage-- shall be 
 sufficient evidence of the mortgages without the production of 
 the mortgages them,selves, unless and except so far as such 
 memorials are proved to be inaccurate ; and the vendor shall 
 not be bound to produce the mortgages unless they appear to 
 be in his possession (."• power. 
 
 'A. In case of registered memorials twenty years old, of other Memorials 
 instruments, if the memorials purport to be executed by the Jhen^and of 
 grantor, or in other cases, if possession has been consistent what, evi- 
 ■vs'ith the registered title, the memorials shall be sufficient evi- ^^"o^- 
 dence witliout the production of the instruments to v.'hich the 
 memorials relate, except so far as such memorials are proved to 
 be inaccurate ; and the vendor shall not be bound to produce the 
 original instruments unless they appear to be in his possession 
 or power ; and the memorials shall be presumed to contain all 
 the material contents of the instruments to which they relate. 
 
 4. The inability of the vendor to furnish the purchaser with inabilitr *« 
 a legal covenant to produce and furnish copies of documents f'"'"'*'^ "°^® 
 of title, shall not be an objection to the title in case the pur- dueeandfur- 
 
694 
 
 (.'hap. 134. 
 
 VENDOR AND HURCHASEK. 
 
 See. 2. 
 
 i 
 
 r 
 5 
 
 nish lidcii- cliiusur will, on the completion of the contract, have an enuit- 
 
 mentn of title, i i ■ ■ . . ,i . '. n i ■ ■ » n <\ i V.r.w 
 
 able right to the procuiction of such dociiiiionts. ii. S. ( ». 1 SH7, 
 
 c. 112, s. I. 
 
 E»idfnefl in 
 actinnR. 
 
 IV In actions it .sliall not l)e necessary to produce any evi- 
 dence which, hy .section 2 of this Act, is di.'^ponsud with as 
 between vendor am purchaser ; and the evidence therein 
 declared to he sufficient as between vendor and purchivser shall 
 be prinui /(icie sufficient for the purposes of such actions. 
 R. S. O. 1887, c. 61, s. 49 ; c. 1 12, s. 2. 
 
 c 
 
 if- 
 
 Suinniary 
 applications 
 to HiRh 
 Court in 
 respect to 
 requiaitioMH, 
 objections or 
 cumpcnnntion, 
 etc. 
 
 OoHtA. 
 
 4. A vendor or purchaser of real or leasehold estate or their 
 representatives respectively ma}' at any time or times and from 
 time to time apply in a summary way to the High ('unit, 
 or a Judge thereof, in respect of any requisitions or ob- 
 jections, or any claim for compensation, or any other question 
 arising out of or connected with the contiact except a <|uestion 
 affecting the existence or validity of the contract; and the 
 Court or Judge shall make such order upon the application 
 as appears just, by reference to tiie Master or otherwi.se, 
 and .shitll order how and by whom all or any of the costs of and 
 incidental to the application shall he boino and uaid. 
 R. S. O. 1887, c. 112, s. ,S. 
 
 75 
 
Sec. 2. 
 
 NOTES 
 
 Objector Act. I'lit! ml was jiuhhimI to faoilitati' tlif ttaiiNfiT uf lami ; soc 
 I'l'i-aiiihlc to '.iT'.iH Vict. (;. 'H. Wlujir tin' cDiitiact i.-< ini'Diisisti'iit willi i\iiy of 
 llio r"lcs prcfcrihcd in h. "J tin' loiitruct jjoveriiM. 
 
 RedtalB. S. -Jtll) in sulistanlially similai' to ;\~:\S Vict. (\ "H x. 2 Cil .\ 
 recital ill a cniivi^yaiici,' "JK years old tliat llic j;i;»iitoi \v \s seised In fee .siiii|ile 
 wa.s hold to he such |)r<iof of that fact, as to iinike that <cinv(yaMci> a jrnod I'om- 
 tiieiieenienlof title for ii solicitor' .s a hstiact though otherwise ihi' [iiirclia.ser 
 would have Ikmmi entitled to have title deduced for a period of Idycars ; lioltoii 
 V. liOndoii School Ho.ird llSTMl 7 I'll. i>. 7(it). This decision has heeii adversely 
 criticised; 1 Hylh & .lai in. i">.'i ; -J ih. (i/S ; .\rmoiir on Titles. 2nd Kd.,;U. It 
 hiiH however heen followed in Ontario : Macklin v. howling (FergiiHon .1. Sept. 
 2<»tli, IHMS) .see 1!» (). K. 444. 
 
 A r(!cital in a deed by iriistc^es that the .sale is made 'in pursuance of the 
 truHt for .sale conferred on them " issulticient evideinu; that the trust deed had 
 not heen i-evoked either hy the I'xcrci.se liy the .settlor of a (lowerof revocation 
 or by a sail' hy him for value during bis lifetime: Re Marsh and Karl (Iran- 
 villellSS:!) -JtCh. li. II. 
 
 Hemorials of Discharged Mortgages. In ventying an abstract, it is in striet- 
 ncsa necessary to produce every deed matorial to the title unless the contract 
 absolves the vendor from that obligation. S. •' ' 1) makes it unnecessary ti> 
 produce mortgages not in his po.ssession. which weii^ I'cuistered by memorials, 
 if they have be(Mi disch.irged. The registered lueiuoiials are made go<id 
 primarv evidc'iice of till' morlgaues Ihemselves. .See \'an Vels(ir\. Hiighsoii 
 (IHK2) !> A. H. :\W). 401. 
 
 Memorials I'rior to -Jit \'icl. c. 24 (IKII.")| regi.itration in I'pper Canada wa» 
 effei:ted by ineinorial. The memorial was recpiired to contain the date of the 
 Iiistriinit^nt or Will, the names and additions of all the parties to tin' fiistrn- 
 ment or of the Devisor, Testator or Testatrix ; the names and additions of all 
 the witnesses, and their places of abode, and a ilcscrilitioii of the lainls. An 
 Instrument other than a I'ower of .\ttorney or a Will was further re(|uiri,'d to 
 he under the hand and .seal of the grantors, or one or more of them, or of the 
 grantees or oni' or more of llieiii, oi- their or his representati'es. and to be 
 attested by two witnesses, one of whom was a witness to the oiiginal. I'. S. 
 V. Cj. c. 89 .SH. I!(, 20. Hefori' the Statute a memoriiil signed by a grantee was 
 not good even as sec<mdary evidence of the deed ; (ioiigh v. .Nb'liride ( IHItl ) 10 
 ('. P. 16(). Such a memorial is now good evidence if tin- poss( ssioii of the very 
 lainl in ipiestion is <'onsistent with the registered title: Van Vehuir v. Hugh- 
 son (IHS2) it .\. K. 401. Possession of other lands compiisi-d in the same mem- 
 orial will not be sufficient to justify the a<liiiission of tin: memorial as evidein e 
 of the title to land of which sueh iMjnsistent |)osses8in'i has not been had ; ih. 
 
 The memorials urn presumed to contain all the material contents of the instrn- 
 iiients to which they relate. This presumption may be rebutted by long enjoy- 
 ment of rights consistent only with a reservation or regrant of an casement- by 
 the deed. Where a, grantor of land conveyed to a Railway company, and had 
 for more than 20 ye.'iis enjoyed the use of a subway under the track. i( was pre- 
 sumed that the convex ance contained a reservation of the subway, though the 
 registered memorial did not mention it and the convevance itself was lo.st : 
 Wells v. Norlhern Ky. Co. ( IMS") 14 1). K. .")!»4. A lec'ital, in a memonal, of 
 trusts will avoid the necessity of producing the original trust deed if it is not 
 in th<! vendor's po.s.session : Ke I'onton and .Swanston (K'^H!)) Ui (). K. ti(j>,(. 
 
 Upon the subject as to how far memorials are evidence see 4 L. .1. N. S. I : 
 l/eith R. V. Statutes 427 ; Armour on Titles, 2nd Kd. 120. 
 
 Covenant for Production. S. 2 (4) is similar to :i7-38 A'ict. c. 78 s. 2 i.'l). Koi- 
 merly .specific performance would not be granted against a purchaser if the ven- 
 dor could not furnish him with a legal covenant i. e. a covenant running with 
 the land, for the; production of the title deeds; Ijarclay v. fiaiiie (I82,S) I Sim.iV 
 St. 449, 24 R. R. 2(Hi. When^ a party is not exclusively entitled to the pos- 
 Hesflion of the title deeds he cannot maintain an action of detinue for them, but 
 he may have an eipiitablo right to their production ; Wright v. Hobothnni 
 (1886) ":« Oh. I). I0(i. 
 
 |ti!t.-.| 
 
V 
 
 <?^ 
 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 
 
 I.I 
 
 ■0 lis 12.2 
 L» 112.0 
 
 US 
 
 1.25 
 
 1.8 
 
 U 111.6 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 ml/.. 
 
 // 
 
 
 
 
 € 4;i 
 
 <? 
 
 
 A 
 
 f/. 
 
 % 
 ^ 
 
 33 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14S80 
 
 (716) 872-4503 
 
.^' 
 
 '" «A 
 
 
 i 
 
 
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()9G 
 
 VENDOR AND PURCHASEK. 
 
 m0 
 
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 5 
 
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 Summary Application to Court. S. 4 is Huh.staiitially the saine lu* WJ-WH Vict, 
 c. 7S H- !•• TIh^ ai)|)licatiiiii is iiiailu bv Potition. ]t is desiraWe that nn agreed 
 stati-inent of facts sliimlil l)c l)n)'iglit in wiiencvcr practicable: Daniels, Ch. 
 FoiiiiB, 4tli I'M. (ir>4. 
 
 Parties. 'I'in- only parties wlio need lie reprL'sentcd aro those wlio would lie 
 parties to a suit for speeifiu i)orforiiianoe ; Ki- Katon Kstate (187S) 7 V. R. 3!)ti. 
 The (Jo\irt eauTiot decide a ((iiestion in which the purchaser is not intercBtod 
 e.g. theclisposition of tlic purchase money as between a married woman and her 
 trustees ; Ke Tippctt and Newhonld (1888| 'X! VM. 1). 444. All the parties to 
 the contract sliould be made parties but no one else. Mortgagees should not be 
 made parties, though they may be necessary i)arties to the conveyance ; Re 
 McNahi) (188-2) 1 (). K. !)7. Otliei' Darties may it seems come in and agree to 
 l)c l)oun<i : Re Naylor and Spen<lla (188ti) 34 (,'h. I). 217. 
 
 Service out of Jurisdiction. There is lu) powtir to allow service out of the 
 jurisdiction ; sec Re IJusfield (1886) 32 Ch. D. 123; R« Henfield atul Swvens 
 (1S<)7) 17 P. R. 300, 33!». 
 
 Jurisdiction. Where tiu! c.\ist<ni:e or validity of the contract is in dispute, 
 the Court has no jurisdiction under s. 4. Tt will therefore decline to enter 
 upon a (|uestion of the validity -if the title initil it is decided that the contract 
 is binding ; Re Robertson and Daganeau (1882) !) P. R. 288 ; but see Re Lauder 
 and Bayley (1892) 3 Cii. 41. If the pur'^liaser claims thu return of his deposit, 
 and his right is based on misrepresentations of the vendor justifying rescission, 
 the Court has no jurisdi tion ; Re Davis and Cavey (188!») .37 W. R. 217. In 
 Henderson v. iiiK'neer (1881) 8 P. R. 402. it was decided that the (juestion of 
 the abandonment of the contract could not l)e raised by the purchaser respcm- 
 dent and the (|uestion as to title was answered by the Court, and costs 
 awarded against the purchaser, but Rovo, V,. declined to follow this case in 
 Re Robertson and Daganeau (1882) !» P. R. 288. It is clear tiiat the validity 
 of a vendor's notice to rescind niav be decided ; Re Jackson and VVoodburn 
 (1887) .37 ("ii. 1). 44 : Hardman v. "Child (1885) 28 Ch. D. ~\2; Re Dames and 
 Wood (I88,")) 2!t Ch. I). 020: Re Starr-Rowkott Building Society and Sibun 
 (1889) 42 Cli. D. ,37.T : Re Arl)ib and Class (1891 1 I Ch, (iOl ; Re Deighton and 
 Harris (1898) I Ch. 4.'i8, and it is said that the words of the exception in s. 4 
 refer to the validity or (existence of the contract in its inception onlj ; Re 
 Jackson and VVoodburn (1887) 37 <^h. I). 44. The right to a rescission of the 
 contract on the ground of fraud cannot be determined ; Re Hargreaves and 
 Thompson (1880) 32 Ch. D. 4.')4 : Re Samlbaoh and Kdmcmdson (1891) 1 (^i. 
 99. k;2. 
 
 The pnrciia.ser (■annot on tlu' pro<-ccdtng lecover damages for loss of-casioned 
 to him by delay in the completion of thi^ purcliase ; Re; Wilson and (Stevens 
 (1894) 3 C'h .'54(1. Tiien^ nnisl Ixmi sahv a voluntary gift is not within the 
 section : Re Marciuis of Salisbury {187.'>) 23 W. R. 824, but counsel may confer 
 jurisdiction by admitting a nominal consideratiop ; ih. 
 
 Wliat may be Done. Wliati vei- ciudd be done in the Master's office upon a 
 reftTence as to title, wliei'e the contract has l)cen established, can be done by 
 proceeding under s. 4: Re RurrougliK and Lyini (1877) ■'> Ch. 1). (iOl. The 
 section was not intended to apply to (^ases where there are (piestionH of contro- 
 vert<«l fact : Re Popple (1877) 2") VV. R. 248, and it would seem that a prelim- 
 inary (|ueKtion of fact caiuiol be determined ; Re (iray and Metropolitan Ry. 
 (1881) 44 L. T. .'">(i7, but evidence by affidavit and cross-examination thereon is 
 .vdmissible as to the vendor's title; Re Burroughs and Lvnn (;877)nCh. 
 D. tiOI. 
 
 Any sliort p linl of law or (ronstruclion arising n))on the abstrattt )r the pui'- 
 ehaser's re(|uisitiiins mav l)e .lisposed of ; Re Hargreaves and Thompson (1886) 
 32 ( ;i.. I). 4.54. In R(' Bingham and Wriggliiworth ( 1884) .') (). R. 61 1 , by eon- 
 ."ent of parties, KKKdi'.soN, .1. answered a t|ueation on a petition tinder the 
 section as to whether a good title could bi' nuide on the construction of a trust 
 deed, but guarded liiniself against making a preci'dent, as he toresa'V undesir- 
 able conHe(|uenccs if all (piestions of title were to i)e .settled in this way. 
 Where ;he law uixin tlie point submitted ajipeared to be in a state of uncer- 
 tainty, if not of transition, tiu! (\)>n't sai<l that any experiment had bettor lie 
 made in a contested cas". where all parties interested would lie represented, 
 and dec1in(^d to uuike an order: Re Hamilton (1889) 18 (). R. 19.'), and the 
 Court will, if the title is doubtful, dismiss with costs a venilor's petition ; Ro 
 M(^Nab(1882) 10. R. 1882, luit see O.sborne to Rowlott (1880) 13 Ch. D. 774, 
 where it is said it is in<annbent on the 0)urt to decide ((uestions of law between 
 a vendor and a purcliaser, but it nuist he liornc in mind that any such decision 
 
 
VENDOR AND PURCHASER. 
 
 697 
 
 ■ ^l(.«!^ ui)t tecliiiiually hind any one else than tliu parties actually before the 
 (lotirt, and docs not prevent any person not ')oun<l from liiinging fresh litiga- 
 tion upon the purehasor with reference to tiie same titlf. Nevertheless a 
 <louhtnil <iiiestion mw-i ho left open and not answenMl in s>i( h a way as 
 would force the title on a purcliascr or prejudice thi; vendors title ; Re 
 Thatikwray and Young (1S88) 40 C'h. 1). 34. and sec Re iSrijigs and !Sy)iecr 
 (18JM)2('h. 127. 
 
 Oonstruction of Contract. Tiie Court has on applications under the suction 
 construed the contract, e.g. by determining what i)ricc was payable ; Re 
 Popple (1877) "2.") VV. H. 248, Hhethei- the contract accurately described the 
 encuiiibranc(^ to be assumed by tlie puronasei- : Re l?ooth and McLean (IS'.tl) 
 '21 O. R. 4.52 ; by determining when tiic term should coniinoiue under an 
 agreement for a lease ; Re Lauder and Bagley {lS!)2i '.i VA\. 41 ; whether a con- 
 dition of I. ' >'. r-, so misleading as not to be binding on the i)urchaaei' ; Re 
 Marsh a ,i. 1,.. ""anvi;!- (1883) 24 Ch. I). 11 : whether the purchaser is 
 entitled to a r,^ ■ way ; Re Lavery anri Kirk (18S8) ^^:^ S. J. 127 : to what 
 a condition as to mi ''escripMon applied; Re Heyfus and Masters (1888) 39 
 
 ch. I), no. 
 
 ninatratlons of Questions Aarwered. .■Mniost every conceivable k nd of 
 ipiestion arising upon an investigation of a title lias been answered in proceed 
 ingfi taken undei s. 4. It is not considered necessary to e.vhaust the authori- 
 ties—a few illustrations will sufhco. The Coiu't lias decided whether an 
 abstract is complete ; Re I'^ord and Hill (187!t) 10 Ch. 1). .30.5 : whether an 
 flxc(Mition bound lands; R" Trusts Corporation and Mcdland (181)2)22 0. R. 
 .538; Re Trusts Corporation and Rcehmer (18(»4) 20 O. R. lltl ; Re Lewis and 
 Thome (1887) 14 O. R. 133; whether local Improvement rates not matured 
 were an incumbrance which the vendor was l)ound to commute and remove ; 
 Re Oraydon and Hammill (1890) 20 O. R. 19!) ; what amount of taxes a vendor 
 shoidd pay; Re Wilson and Houston (1891) 20 0. R. .532; what interest a 
 purchaser should pay : Re Dingman and Hall (1890) 17 A. R. 398 ; Re Woods 
 and Ix'wis (1898) 2 (Jli. 211 ; whether tiiiats of land were extinguished by a 
 conveyance from the ri's/iiisijui' Iriixl ; Re Rathbone and White (1892) 22 0. R. 
 .5.50 ; whether a vendor was bound to apply under the provision equivalent to 
 R. S. 0. c. 119, s. 1.5 (ante p. .590), for a discharge of encumbrances ; Re Great 
 Northern Ry. ('o. an<l Sanderson (1885) 2.5 Ch. 1). 788 ; whether the consent 
 of two out of three executors to a sale under a power reciuiring the consent of 
 «"xccutors w.iR sutKcient ; Re McNabb (1882) 1 O. R. 94 ; whether certificates 
 Lis rVndcns slumld be removed and who sliovd<l pay for copies of docunien'.s ; 
 Re Bobier and Ontario Investment Co. (1888) 16 O". R. 2.59 ; what is the pro- 
 per construction f)f a will ; Re White and Ilindle (1877) 7 Ch 1). 201 ; Re 
 Bain and Leslie ( I. S94) 2.5 O. R. 13(5; whether a devise amounted to an estate 
 tail which could be barrel ; Re Fraser and Bell ( 1891) 21 O. R. 4.5.5 ;_ whether 
 a power of sale coidd be exercised by a surviving execiutor ; Re Koch and 
 Wideman (1894) 2.5 0. R. 262 : whether the cxe(uitor of adecea.sed lessor eoukl 
 renew a lease ; Re Canadian Pacific Rv. Co. and National (,'lub (1893) 24 
 O. R. 20.5. 
 
 Questions of Conveyance. .Many of the foregoing were (|uestion8 of conveyance 
 and not of title. The Court may settle tlie form of the conveyance on an 
 application unrlcr the act ; Re (irey and Metrojiolitan Ry. Co. (1881) 44 L. T. 
 .567; Re Pigott and Great Western Ry. Co. (1881) 18 Ch. I). 146; Re Agg 
 Gardner (1884) 2.5 Ch. I). 600, and whether tlie concurrence of a husbancl is 
 nesessary ; Re Thompson and Curzon (1885) 29 Ch. 1). 177: nv of a. rrxtui (lUf 
 Inixl ; Re Cooke (1877) 4 Ch. I). 4.54 ; and whether trustees can be r'<!quired to 
 personally receive the purchase moiu'y : Re Rellnmv ntul Mptro|)nlitan Board 
 
 ■ if Works (1883) 24 Ch. I) 387. 
 
 Compensation. Kxpress power is given to decide fpiestions of conipensation. 
 This power has been exercised in Re Orange and Wright (1885) .52 L. T. 606 ; 
 Re Aspinalls aiul Powell (1889) 60 L. T. .595 ; Re Hia1)alt and Chaytor ( 1888) 
 57 L..I. (.'h. 421, and even after completion in Re Turner and Skelton (1879) 
 13 Ch. I). 1.30. It may not !)(• decided whethei- the purchaser is entitled to 
 receive moneys which the vendor lias rccovercfl from a tenant for non-repair 
 of the premii-vS : Re Kdie and Brown (1888) .58 L.T. 307. 
 
 Consequential Relief. The ('ourt is to tnake such order as shall appear just. 
 This confers power to make such order as wotdd \w just as the natural crinse- 
 <pu'nce of what is decided : Re Smith and Stott (1883) 48 L.T. 512. There 
 fore on deciding that a vendor had not shewn a good title the (Jourt ordered 
 
698 
 
 VENDOK AND I'lTRCHASEIi. 
 
 2 
 c 
 
 r: 
 
 the ii'tui'ii <if the ileposit with .sn(;li (laimiges an imlurally llowcd from the 
 vendor's fiiiliuv, vi/,. stiitiitory interest on tlie money iwid ami the cost of in- 
 vcHtigatiiig tlie title ; Ke Hargreave.s and Thompson (IHSO) ;{2 V\\. I). 4.54 ; He 
 Kllsworth and Tiilv |l«8!l) 42 Ch. 1). '^^ \ lie Hrvant an<l IJaiiiinglmni ( 1890) 
 44 Ch. I>. 21H ; Ke'^Lyon and ( 'arroll (I8!W) I Ir'R. :m, and the Court may 
 order the coklh to he (•harge<l on the vendor's intei'e.st in the propertj' : Ke 
 Higginsand Hitehnmn (1S1I2) 21 Ch. I). !)."> ; Re Yielding and VVestl.rook (IHH(i) 
 SI Ch. I). .S44. Interest paid inidri- protest may he oidered to lie returned : 
 He Young V. Harston (IS8.')) .SI Ch. I). KiK. hiil iimtiri' if this jnrisdietion ciui 
 he exercised without i.tmsenl. 
 
 Where! the residt of the answiM' to the (pie.stioii is that a good litic can he 
 made, the <;ouit may order tlie purchaser to carry out the contract, and may 
 further older that he pay the costs of a resale and any deti(!ieiu:y thereon ; i<e 
 (!raig(18S3) Id I'. K. WW, and an action tor specMtit- performancic will not he 
 entertained. u])on the ground that the partiiss having once applied lo llic Court, 
 all (iue.stions thereafter arising must he summarily disposed of; 'I'lioinpson v. 
 Ringer (1881 i 44 L.T. ."i07 Where a trustee had an ahsolnte diseretion as to 
 forfeiting an estate for thi; henetit of the settlor anil tenant for life, and he (the 
 settlor and teiuui I for life) was on tlr; retirement of the original tru.stec apjiointed 
 trustee, tlu! court although it answered the (|uestions suhmitted in fa *■ or of 
 the vendor trustee, was of opiinon tliat the appointment was one which the 
 (."ourl would not have made and refu.iiMJ to com|)el thi^ purchaser to accept the 
 title; Re 'I'leleven and Horner (1S8I) 28 (ir. f)24. Leavi' may liowcver lie 
 given to institute a action for specific perforiTiaiute : Re lioustead and Warwick 
 (1886) 12(). R. 488, where leave wa.s given so that evidt lu^e proving a title hy 
 possession might he given on atlidavit, anil he suhjeet to cross-e\amiii,itioii. 
 
 Reference. A refereiu'c to the Master may he directed to carry out the terms 
 of any order, e.g. to ascertani tiie amount of compensation : Re .\spinalls and 
 Powc'll (I88!))ti0 I,.'i'. .■)!).■> ; or to settle the form of the convcvanee ; Re Mom 
 eton and Cil/.ean (1884) 27 Ch. 1). .)ti4. 
 
 CostpS. The costs are in the discretion of the(,'ourt; (fivinsv. I)arvil(188(» 
 27 < ■ r. oOT ; hut generallv tliev will follow the event ; Re Mercer and .Moore 
 (1880) 14Ch. I). 2S7 : Ri' Davis and Cavey (18881 40 Ch. D. (iOl ; Re Starr- 
 IJowkett Society and Sihun (1889)42 Ch. I). '.\~V): except where the decisions are 
 eonflieting ; Re Oshorne and Kowlett (1880) i;{ Ch. I). 774. or there i; a faii- 
 jioint for discussion ; Lucas V. Hamilton Real l'",state Association ( 1879) 20 (Jr. 
 284; ReOiwardarid Adams (187.")) L.R. 20 Kij. 179; Re Metropolitan District 
 Railway Co. and Cash (l'^80) l.'{ Ch. D. t)07, and .see Re Ivlwards and <ireen 
 (1888) 08 L.T. 789. K.xtra costs ociasioned hy the fault of eitiuM' party iiuiy 
 he ordered to he paid hy the partv in fault; Re Rohiei and Ontario Invest 
 luent Co. (1888) Ki O. R. '2r,9. It has heen said hy .Icssel, M. R., that when the 
 (Jourt decides that a good title can lie made, the general rule is to order the 
 purchaser to |)ay the costs so as to assure his t itio and show tliat the Cotnt 
 entertains no ilouht upon it ; Re Oshorne and Rowlett 1I88O' 14 (!h. D. 774. 
 If the vendor relies on a po.sses.sory title and the ipicstion arises whether it has 
 hceii made out the Court will order that if the veiulor makes out siieh a title 
 there shall he no costs, hut if he fails he unist pav costs ; Re Houstend .md 
 Warwick (1 88B) 12 O.R. 488. 
 
 Appeals. An appeal may he made either to a Divisional Court or to the. 
 (V)urt of .Vppeal ; .Judicature .\et (R. S. O, ». ."il) ss. 7i>, 76, "«''' p. 187 ; He 
 Dingman and Hall (1890) 17 A.H. ;{98. 
 
Sec 1. 
 
 REGISTKATION OK 1>KKI)S. 
 
 chiiji. im. 
 
 699 
 
 CHAPTER 136. 
 
 An Act respectinf:^ the KegistraticMi of Instruinonts 
 relating to Lands. 
 
 (Ax amended hi/ <i .' V. c. Pi.) 
 
 SUORT Tiri.w, s. 1. 
 Interpretation, ss. 2, (>1(G). 
 Reoistry Offices, ss. 3-9. 
 Registrars and depi'TIEs : 
 Appointniont, security (if, etc., 
 
 .S.S. 10-2;J. 
 Dutii'S, 88. 24-28. 
 Books oj.- Office — 
 
 To be furnished by County, .ss. 
 
 29.31. 
 Ti'aiiafer i»f, upon jilteratiou in 
 Hunts of the Registry Division 
 or removal of Rofjistrar, ss. .'!'.'- 
 34. 
 Copies i>r, when tim old for use, 
 s. .S5. 
 AB.sTRAt;T Index, ;;. :{(i. 
 Alphabetk Ai, Indkx, s. .'$7. 
 Instruments that may he reoi.s- 
 
 TEREI), 88. .'58, 39. 
 Proof for ufaiistration, ss. 40-.")8. 
 Where in koreion lanovaoe, s. 
 
 .59. 
 Manner of reoisterino, ss. (iO-()7. 
 Rroi.st ration of 
 Crown 'j;raiits, s. (J8. 
 Orders in Council, s. Hit. 
 Wills, s. 70-71. 
 Other instruments, s. 72. 
 Instruments oxocutod before 1st 
 .Ian. 18(ir), S3. 73, 74. 
 
 RK(ilSTRATION OF INSTRUMENTS IN 
 FULj "'HEN ME.MORIAI.S PREVI- 
 OUSLY RF.CI.STERKD, S. 75. 
 
 DlSCmAROES OK MOHTOAOES, SS. 
 
 7(i-84. 
 
 DlSt'lIAKOE OK I.IP.N NOI'E.S, S. S5. 
 
 By-laws, ktc, oi-EMNi; ucpads ok 
 
 <H*N(fIN(i MINRIPAI. MMITS, 
 
 s. 8«. 
 
 HEiilSTRATION AVI) ITS F.FFKI'T, SS. 
 
 87-9.4. 
 Unregistered instruments after 
 grant from the Crown void 
 against subse([uent registered 
 [)aioii-iser, s. 87. 
 Powers of .Vttoruey. s. 88. 
 Wills to be regii<tered within twelve 
 
 months after death, s. 89. 
 Deeds on sales for ta.xes, ss, 90, 91. 
 iJegistration as notice, 88. 92, 93. 
 , Unauthorized alterations in t^ntries, 
 i ss, 94, 95. 
 
 ' When instrument to be deeinid to 
 i)e regihtered, b. 90. 
 Actual 1 otice, s. 97. 
 i E(|uitable liens invalid as against 
 registered instruments, s. 98. 
 T.icking not allowed as against 
 ' registered instruments, s 98. 
 
 Subsei|"ent advances on mortgages, 
 i a. 99. 
 
 I Re«ISTRATII>N of PLANS, S^. J OO- 
 
 ' 112. 
 
 1 Provisions for rk- registration in 
 case of loss f.tc , of registry 
 
 ROOKS, S. 113. 
 
 Defects in REOisTRArioN, ss. 114- 
 
 117. 
 Fees OF Hk(;istraks, ss. 118-134. 
 Inspector of Reoistrv Offices, 
 i as. 135- 1.3s. 
 
 HKR MAJESTY, by and with the advice ami consent of the 
 Legislative Assembly of the Province of Ontario, enact.s 
 a.s follows : — 
 
 I. Thi.s Act may bo cited a.s ''The Rt'ifisfry Ad." 56 V. si„irt titl( 
 t. 21,s. I. 
 
700 
 
 (Jhap. ISG. 
 
 HKOISTRATION OF DEEDS. 
 
 Sec. 2. 
 
 2 
 
 IT 
 
 r 
 
 03 
 
 Interprets- 
 tion 
 
 "Instru- 
 ment.' 
 
 " Land." 
 "Will." 
 
 %. Where the following words occur in this Act, or in tha 
 schedules thereto, they .shall bo construed in the manner here- 
 inafter mentioned, unless a contrary intention appears : — 
 
 1. "Instrument" shall include every Crown grant. Order in 
 Council of the Dominion or of this Province, deed, conveyance, 
 mortgage, assignment of mortgage, certificate of discharge of 
 mortgage, assurance, lease, bond, release, discharge, power of 
 attorney, or substitution thereof, under which any such deed, 
 conveyance, assurance, discharge of mortgage or other instru- 
 ment is executed, bonds or agreements for sale or purchase of 
 land, letter of attorney, will, probate of will, grant of 
 administration, municipal road by-law, certificate of any 
 proceedings in any Court, judgment of foreclosure, and every 
 other cei'tificjite of judgment of any Court affecting any inter- 
 est in or title to land ; also, certificates of payment of taxes, 
 granted under the corporate seal of the county, city, or town 
 by the treasurer ; every sheriff's and treasurer's deed of landv 
 sold by virtue of his office; every contract in writing; every 
 commission and proceeding in lunacy, bankruptcy and insol- 
 vency ; and every other instrument whereby lands or real es- 
 tate may be transferred, disposed of, charged, incumbered or 
 affected in any wise, affecting land in Ontario. 
 
 2. 'Land " .shall include lands, tenemerts, hereditan)ent8, 
 appurtenances and real estate. 
 
 3. "Will " shall include probate of will and exemplification, 
 or notarial or prothonatorial copies of probate of will, and let- 
 ters of administration with the will annexed, and any devisa 
 whereby lands are disposed of or affected. 
 
 4. " County" shall include a union of counties, a city, junior 
 county and any part of a county or counties set apart for judi- 
 cial or registration purposes. 56 V. c. 21 , s. 2. 
 
 Registry 
 DiviaiouR. 
 
 Jl. The ftegistry Divisions at present existing, as set forth 
 in Schedule Q, are hereby continued ; and whenever any 
 county is .separated for judicial purposes from a union of 
 counties, or a new county is formed and set apart for judicial 
 purposes, there .shall be a separate Regi.stry Office established 
 therein by the Lieutenant-Governor in Council, which office 
 shall be kept in the county town in like manner as in other 
 county towns. 56 V. c. 21, s. 3. 
 
 RegiHtry Divi- 4. There shall be separate registry divisions for the city of 
 Tomn't" Toronto, to be called respectively. East Toronto and West 
 
 Toronto. 56 V. c. 21. s. 4. 
 
 Ki'crisirv 
 ofiiceH in 
 Torimto. 
 
 R. The registry buiMing now on Richmond Street West in 
 the City of Toronto, shall be and continue to be the offices of 
 the Registry Divisions of East and West Toronto. The former 
 Registrar of the City of Toronto shall, during pleasure and 
 without new appointment, be Registrar for the registry diviBion 
 of West Toronto. 56 V. c. 21, s. 5. 
 
I 
 
 Sec. 8. 
 
 REGISTRATION OF DEKDS. 
 
 Cliap. 136. 
 
 701 
 
 fi. The Council of the City of Toronto shall, hy atklition Frovision for 
 thereto to be approved by the Lieutenant-CJovernor in Council [''*fjj*'/y.*"'' 
 provide in or in connection with the present registry buikl in >,', offices in 
 or otherwise, sufficient safe and proper tire-proof offices and Toronto, 
 vaults for the Registry Offices for both divisions of East and 
 West Toronto, and for the Office of Land Titles for the said 
 City, and shall furnish the sume in accordance with the pro- 
 visions of this Act and The Land Titles Act respectively. 56 V. -^^ g^^t ,.. 
 c. 21,s. 6. 13«-' 
 
 What bookf, 
 etc., to be 
 kept by Reg- 
 istrar of W pb* 
 Toronto. 
 
 a. — (1) The registry books, and all bo<jks of indexes, which What books, 
 have been kept exclusively for the Registry Divi.sion of East ?"^' *"'?'"*"* 
 
 A */ o •/ ^ ^ ^ ju custody 
 
 Toronto, and likewise all original memorials, all original dupli- of Regigtrat 
 cates, and all deeds, conveyances anfl wills, and all other instru- 2f ^»*' 
 ments, and all maps or plans lodged according to law in his 
 office, and relating exclusively to lands within th(! Division of 
 Ea.st Toronto, shall remain in the cu.stody of the Registrar of 
 East Toronto. 
 
 (2) .\11 other abstracts, index books and registry books 
 original memorials and original duplicates, and all deeds, con- 
 veyances and wills, and all other instruments and maps or 
 plans, affecting lands in both Registry Divisions, shall remain 
 and continue with the Registrar of the Registry Division 
 of West Toronto. 
 
 (3) All wills and instruments in which there is a general General rpg- 
 devise, conveyance or power affecting lands in the City of Tor- )^^y '» West 
 onto without local description, shall be registered in the Regis- 
 try Division of West Toronto. 
 
 (4) The Registrar of the Registry Division of West Toronto 
 is hereby authorised and empowered to certify to all abstracts 
 of title and copies of instruments from such books retained in 
 his office, and affecting lands in the Registry Division of East 
 Toronto, and he shall permit searches to be made therefrom, 
 whenever required to do so, upon being pnid the ordinary fees. 
 
 (5) The present Abstract Clerk shall be the Abstract 
 Clerk of the two Divisions, during the pleasure of the 
 Lieutenant-Governor, and shall perform such other duties as 
 the Lieutenant-Governor may direct. His salary shall be paid 
 by the two Registrars, one-half by each, or in such other piopor- 
 tions as the Lieutenant-Governor may from time to time direct. 
 
 (6) The Master of Titles is to be at liberty to inspect, by 
 himself or his clerks, all books and papers in the said offices 
 for his own information as such Master, without payment of 
 fees, subject to any general rules to be made under the author- 
 ity of The Land Titles Act. 50 V. c. 21, s. 7. 
 
 Duty of Reg- 
 istrar of^Vest 
 Toronto aa to 
 matters affect 
 ing lands in 
 East Toronto. 
 
 Abstract 
 Clerk. 
 
 8. Where the Registry Office in any Division appears to the 
 Lieutenant-Governor in Council to be inconveniently situated, 
 he may by ;irocla.; ration order the same to be removed to any 
 other place in the Divi.sion. 56 V. c. 21, s, 8. 
 
 InspeotioD of 
 books, etc., in 
 Toronto regis- 
 try offices by 
 Master of 
 Titles. 
 Rev. Stat, 
 c. 138. 
 
 Registry oiiice 
 may be re- 
 moved. 
 
702 
 
 Chap. l.Sn. 
 
 REGISTRATION OF DKEDS. 
 
 Sec. 9. 
 
 % 
 
 ^ 
 
 fireproof 
 Dffices and 
 vaultH. 
 
 County Coun- ^^- I'or the .safe-keepiiig an<l protection of ail books, inein- 
 ciU to provide orials, duplicates, and other instruments of whatever descrip- 
 tion, and plans, bclonginir to the office of Registrar, the council 
 of every county where, at any time there are no safe and 
 proper tiro-proof offices and vaults provided by the council, or 
 where hereafter any Registry Office is established, shall pro- 
 vide, furnisli and maintain, and keep in good repair, a safe and 
 fire-proof Registry Office, fire-proof vaulted, upon a ])lan and 
 on a site to be ap]iroved by the LieutenaTit-Oovernor in Coun- 
 cil : and the said council shall keep the said Registry Office 
 furnished with fu(il nml furniture and in good repair, and 
 towns separated from eoiinties for municipal purposes, and 
 cities in which no seiiarate Registry Offices exist, shall l)ear a 
 ratable proportion of the expense thereof, based on the assess- 
 ment of i\\\ the municipalities within the jurisdiction of the 
 county. 5(5 V. c. 21,s. 9. 
 
 REGISTRARS. 
 
 
 r 
 
 03 
 73 
 
 33 
 
 
 1 
 
 Kegistrar. 
 
 Registrars, 
 how ai^poiiit- 
 ed, etc. 
 
 10. Every Registry Office shall be kept by an officer to be 
 called the Registrar. 56 V. c. 21, s. 10. 
 
 I I. The Lieutenant-(iovernor shall, as occasion may lequire 
 from time to time, by commission, under the Great Seal of the 
 Province, ajipoint a fit jierson to the office of Registrar, and 
 shall, in like mannei', till any vacancy occurring by the 
 deatli, resignation removal or forfeiture of office of any Regis- 
 trar, and every Registrar heretofoi-u Jipjjointed or hereafter to 
 be a]ipointed .shall hold office tluring pleasure only. 56 V. 
 c. 21, s. 11. 
 
 Amount nf 1 ?i. The Lieutenant-Oovemor may from time to time by 
 
 security to be Qi.,]gr in Council fix and determine the amount of the security 
 
 to Vje given, as hereinafter mentioned, by each Registrar ; but 
 
 the amouvit of such security shall be not less than 1^4,000, nor 
 
 more than $10,000. 56 V. c. 21, s. 12. 
 
 [ils to HCGihritii of liegintrdvs in the. Unorganized Didricts, 
 see Cap. 109, sec. 79.] 
 
 given. 
 
 Security to be 
 given by 
 KegJHtrftrs. 
 
 Rsv. Stat 
 c. 16. 
 
 !•(. — (]) Subject to the provisions of section 24 of The Act 
 respectmg Public Offi,cers, before any Registrar is sworn 
 into office, he shall execute and enter into a joint and several 
 covenant in duplicate with two or more sufficient sureties to be 
 approved by the Lieutenant-Governor in Council for such 
 amounts as may be fixed and determi/ied by Order in Council 
 in thfi.t l)ehalf as aforesaid. 
 
 (2) Such covenant niiiy be in the form of Schedule A to 
 this Act, or to the like effect ; and to each of such covenant3 
 shall be attached an affidavit in the form of Schedule B to this 
 Act, or to the like effect, made by each of the sureties therein 
 mentioned. 
 
8ec. 19. 
 
 HEOISTRATION OF DfclKDS. 
 
 Cliap. 1:^6. 
 
 703 
 
 to be 
 
 {3} One of the duplicates witli the affidavits appended shall 
 be forthwith transmitted to the Provincial Secretary, to be by 
 him retained, and the other duplicate with the affidavits afore- 
 Eaid, shall be by the Rej^istrar forthwith tiled in the office of 
 the Clerk of the Peace for the said county or union of counties 
 where the same shall remain on record. 56 V. c. 21, s. \''. 
 
 14. Any Registiar, whether appoiiiteil before or after ti:e New cove- 
 passing of this Act, may a,t any time be re(|iiired by the In- nantKmavbs 
 spector of Registry Offices, with the approval of the Lieutenant- inspector.'^ 
 Governor in Council, to execute new covenants in the form 
 jind to the effect hereinbefore provided, or to furnish other 
 sureties as may be deenu-d expedient, or both, and in default 
 thoi'cof shall be subject to the penalties mentioned in section 
 25 of this Act. 50 V. c.'21, s. 14. 
 
 Ii». Anv ijsrson may examine and obtain a copy of the CopieH may b« 
 
 •^ ^ -'.--- .IJ . . ubtainedby 
 
 liny pergnn. 
 
 R."rist,!7<.r's c-.vonant and affidavits on iiayment to the Clerk of i;^*"'"*"* ''>' 
 til*. I'eace of a fee foi- the copy and search, of one dollar, or for 
 the search, of twenty-five cents. 50 V. c. 21, s. 15. 
 
 I4t. Sections 15 to 20 inclusive of IVic Act respecting Public Rev. .Stat. e. 
 Ojficei'x, shall appK' to .seeuiities given by Registrars. 56 V. c. 16, >»>■ !•'> 20 
 21, s. 16. .Sa' (Un'o Cup. IC, >ifc>i. iJi-iL ' 
 
 to apply to 
 securities. 
 
 I'i. The Lieutenant-Clovcrnor, upon the ai)plication of any liieutenant- 
 i-ounty or citv interested, or without such ai)i)lication if he <i>>vt;rnor may 
 
 1 • 1 "^ />, " • 11 • , , ■ •, • 1 require Regis- 
 
 thinks ht, may require any liegistrar to give .security in such trarstoRive 
 form and for such an amount as the ijieutenant-Governor in '^*'™"*y- 
 Council determines to be sufficient to .secure the due payment 
 of any moneys payable by the Registrar to the county or citj'. 
 56 V.'c. 21,s' 17. ' 
 
 IH. — (1) A surety for a Registrar who is no longer di.sposed •^«''et"»of 
 to continue his responsibility, may give notice thereof to the 
 Registrar and t<) the Provincial Secretary, and in such case the 
 Registrar shall, under jjenalty of forfeiture of his office, furnish 
 a new surety in lieu of the surety so giving notice, and shall 
 complete and transmit the neccs.sary covenant in that behalf to 
 the Provincial Secretary within one moiith after the notice, 
 and shall procure the approval of the new security within two 
 months after the notice. 
 
 (2) All accruing responsibility > the part of the person 
 giving the notice shall continue until the perfecting and 
 approval of the new security, and shall thereupon cease. 50 V. 
 c 21,.s. 18. 
 
 1 J>. The Registrar and his sureties shall be jointly and sever- Liability of 
 ally liable on their covenant to any aggrieved penson or persons [heir mi '-et^ea. 
 to indemnify him or them against any damige or loss sustained 
 by him or them, by or through the neglect or misconduct of the 
 
^^ 
 
 704 
 
 CImp. \-M. 
 
 KLCISTliATlON OF DEEDS. 
 
 Sec. 20 
 
 Registrar oi- liLs deputy in the performance of the duties of hi.s 
 office, not e.Kcceding tht- penalty named tlierein, but tliis pro- 
 vision .shall not exempt the Registrar from any further re.spon- 
 sibility to persons sustaining damage or loss as aforesaid 
 
 56 V. c. 21,8. 19. 
 
 Mt 
 
 (h of 01 
 
 ffioe. 
 
 o 
 
 V 
 
 r 
 
 CO 
 
 5 
 
 Ap|>ointment 
 «f (lepiitieH. 
 
 Removal. 
 
 Power of dep- 
 uty in case of 
 death or 
 removal of 
 registrar. 
 
 Where vacan- 
 cies occur in 
 office of 
 refifiBtrar and 
 there is no 
 deputy, 
 county 
 attorney to 
 act. 
 
 Temporary 
 officer to be 
 responsible. 
 
 '•50. Eveiy Registrar, before he enters upon the execution 
 of his office shall, before two or more Justices of the Peace for 
 the county, take the oath given in the form of Schedule C to this 
 Act, which shall be transmitted to the Piovincial Secretary,, 
 together with the recognizance and covenant aforesaid. 50 V. 
 c. 21, s. 20. 
 
 'it. — ,,1) The Registrar may by writing under his hand and 
 his seal of office, nomin.ite a deputy or deputies in his office, 
 who may perform all the duties required under this Act, in the 
 .same manner and to the like effect as if done by the Registrar;. 
 and any Registrar may remove his deputy and appoint anothei- 
 in his place whenever he thinks it necessary ; and in case of 
 the death, resignation, removal or forfeiture of office of the 
 Registrar, the Deputy Registrar, or in case of their being more 
 than one. the senior Deputy Registrar, shall do and perform all 
 and every act, matter, and thing necessary for the due execution 
 of the said office, until a new appointment of Registrar is made 
 by the Lieutenant-Governor, ofi V. c. 21, s. 21. 
 
 (2) 111 the case of the death, resignation or removal of a 
 Registrar, if there be at the time no De})uty Registrar, the 
 County or District Attorney for the county or district, as the 
 case may be, shall cx-offlcio be the Registrar pro temjwre, until 
 another person is appointed Registrar and the County or District 
 Attorney on becoming Registrar pro tevipore may appoint a 
 Deputy-Registrar, and shall do and perform every other act, 
 matter or thing necessary for the execution of the office. 58 V. 
 c. fi, s. 1 , part, 
 
 (3) The Registrar pro tempore shall be answerable for the 
 execution of the office in all respects and to all intents and 
 purposes whatsoever, during such interval as the Registrar so 
 dying, resigning or having been removed, would by law have 
 been if he had been living or continuing in office, and any secur- 
 ity given on or after the IGth day of April 1895 by a Registrar 
 so afterwards dying, resigning or being removed as aforesaid 
 shall be a security to the Queen, her heirs and successors, 
 and to all persons whatsoever, for the due and faithful 
 performance of the duties of his office by the Registrar pro 
 tbmpore. 58 V. c. 6, s. 2, part. 
 
 Deputy's oath 58 'J. Every Deputy Registrar before he enters on the execu- 
 
 of office. tion of his office, shall, before two or more Justices of the Peace 
 
 for the county take the oath appointed to bo takea by the 
 
 Registrar, or an oath to the like effect, which oath shall ber 
 
Sec. 25. 
 
 HEGISTHATION OK DHKOS. 
 
 Clmi). !:')(; 
 
 705 
 
 forthwith tninsmitte<l to the Provincial Secretary, .5<5 V. c. 21, 
 s. 22. 
 
 58 V. 
 
 /8JV — (I) No Registrar ur Deputy Ro<^istrar or i-lcrk in his 
 office shiill, directly or inilirectly, act as the aj^ciit i)t any coipor- 
 ation, society, company, person or persons invcstini; money and 
 taking securities on real estate within his county, nor shall the 
 R'igistrar Dr Deputy Re<^istrar, or any clerk in tluM)tKco advi.se, 
 for fee or other reward, or otherwise, upon titles of land, or 
 practise as a conveyancer, or act as an agent for the sale of 
 land, within his county, nor shall he carry on or transact 
 within the Registry Office, any other business or occupation 
 whatever, upon pain of forfeiture of office. .")(J V. c. 21, 
 8. 23(1); 60 V. c. 14, .s. 19. 
 
 (2) No Registrar appointed on or after the 27th day 
 of Alay, IH93, .shall practise for gain as a Barrister, Soli- 
 citor, Physician or Surgeon ; nor shall any Registrar ap- 
 pointed before the said date where the net income t'lorn 
 his office is more than $1,000, nor shall any Deputy Registrar 
 or cleik in the office of the Registrar, carry on a practice as a 
 Physician or Surgeon during office hours other than a consult- 
 ing practice, or out of office hours other than a consulting or 
 office practice at his home, nor take any proceedings under the 
 power of sale in any mortgage or other instrument affecting 
 land either a.s solicitor or agent, nor shall he personally or as a 
 member of a firm cany on a loaning business or be in any way 
 connected with any firm having business to transact in the 
 office of such Registrar. 
 
 (3) The work of the Registry Office shall be conducted and 
 carried on in all cases under the direction and immediate 
 supervision of the Registrar, whether heretofore or hereafter 
 appointed. 56 V. c. 21. s. 23 (2, 3). 
 
 DUTIES OF KEGISTKARS. 
 
 K<'fri«trBis nr 
 Deputi™, etc., 
 not ti> itct ax 
 aireiitH, for 
 persoiiH taking 
 BHCuritios on 
 real estate, or 
 in Rt-IIinf; land 
 or advise as to 
 titles, etc., in 
 tlieirCountieg, 
 
 Registrars not 
 to engage in 
 certain call- 
 ings. 
 
 Work in reg- 
 istry office to 
 be personally 
 supervised by 
 Registrar. 
 
 554. Every Registrar shall reside within ten miles of his office Residence of 
 and shall keep his office at the place named in his commission ^leffistrurs. 
 or otherwise as appointed by the Lieutenant-Governor in 
 Council, or by any Act in force respecting the same. 56 V. 
 c. 21,8.24. 
 
 Ha. If a Registrar in any manner misconducts himself in Removal for 
 his office or neglects to perform his duty in every respect as nn»conduct. 
 required of him by this Act, or commits or suffers to be com- 
 mitted any undue or fraudulent practice in the execution 
 thereof, then such Registrar may, at the discretion of the 
 Lieutenant-Govenor in Council, be dismissed, and he shall, , • ,-,■. , 
 
 ,1 • 1 1 • [• !• x\ • Liiabilityof 
 
 moreover, together with his sureties, so far as tlieir covenants Registrar, 
 extend, be liable to pay all damages, with full costs of suit, to 
 any person injured thereby, to be recovered by action in the 
 High Court; and any Deputy executing the otHoe of Registrar 
 during any vacancy by death, resignation, or forfeiture of the 
 U. 1 
 
700 
 
 C'luip. 136. 
 
 RKOISTHATION 01' DEEDS, 
 
 See. 2»J (I). 
 
 Deputy 
 fxeoutiiiK 
 
 lattice. 
 
 Kt'i^istiar, shall, together with the sureties of the Reglstiai- as 
 far a.s their covenants e.\tend, be for the same cau.se, and in 
 like manner lialtle as the Uegistrar and his sureties are in this 
 section declared to be liable. oG V. c. 21, s. 25. 
 
 Honra uf 
 attpudance at 
 iifflce. 
 
 o 
 
 c 
 
 I?. 
 
 r 
 I 
 
 C 
 
 S 
 
 (.>f rpgi^tl•ol•(^ 
 for Tdfcnto 
 and York on 
 Snturdny. 
 
 Office liniir.." 
 of Dtluir rfgis- 
 trar.s on Sat- 
 urday durinfir 
 \-<x\^ vncittiun. 
 
 *iU. — (!) Except as hereinafter in this section provided the 
 Registrar or his Deputy shall, for the discharge of idl dutie.^ 
 belonging to the .said office attend at h's office from the hour 
 of ten in the forenoon until four in the afternoon, every day 
 in the year, holidays excepted, and no instrument shall be 
 registereil by him on any holiday, nor shall any instrument be 
 received for registration liy him except within the hour.s above 
 named. 5G V.c. 21, s. 2() (1). 
 
 (2) The Registrars for the East and West Divisions of the 
 City of Toronto and the Registrai* of the County of York, or 
 their respective deputies, shall atteml at their offices for the 
 transaction of l)usiness on Saturday, from the hour of ten 
 iu the foi'enoon until one in the afternoon and no longer, and 
 no instrument shall be received by them for registration on 
 (hat day except within the hours above named. r)6 V. c. 21, 
 s. 2G (2.) 
 
 (3) None of the other Registrars .shall, after one o'clock in 
 the afternoon on Saturdays during the long vacation, namely, 
 from the 1st day of July to the Slat day of August, both days 
 inclusive, register any instrument, nor shall any instrument 
 be received for registration by them, nor shall it be obligatory 
 to attend at their offices for the transaction of business after 
 the said hour of one o'clock on Saturdays duiing the said period 
 of the long vacation. .59 V. c. 29, s. G. 
 
 Refdstrars to ''il • — (1) The Registrar shall, when required, and upon being 
 "'ake searche.s tendered the legal fees for so doing, make searches and furnish 
 copies and abstracts of or concerning all instruments or 
 memorials registered, mentioning any lot of land as descrihed 
 in the patent thereof from the Crown, or any lot described by 
 number or letter on any registered map or plan subsequent to 
 the registration of the map or plan, or any part of a lot where 
 the same is clearly described and can be identified in connection 
 with the chain of title, or has been ascertained by actual 
 survey; and of and concerning all wills, deeds, orders, or other 
 instruments recorded, as may be requested of him in writing, 
 To exhibitor!- if a writing is demanded by the Registrar ; and he .shall exhibit 
 g'inals of in- ^^^ original rejjistered instrument, and also the books of the 
 offic relating thereto when the party desn-es to make a personal 
 insp jn thereof, and shall give certificates of all copies and 
 extr under his hand of and concerning the parties to any of 
 such documents, or of the witnes>es to the same, or any other 
 particulars which may be required, but no Registrar shall allow 
 any such book or instrument to be taken out of his possession 
 or custody. 
 
 To certify 
 coideM, etc. 
 
Sec. 29 (1). 
 
 UEOISTUATION (»l' DKKKS. 
 
 Ohai). IMH 
 
 707 
 
 (2) Every abstract furnished by a ReyiHtrar sliall bo com- Oertiticato of 
 
 inenced and ceititied to in the words following: — ReRi-'trar n 
 
 abstracts. 
 
 Ontario, Registry Ottice, County <>f Abstmct of titU- 
 
 I certify tliut tlie above (or the following) are correct extracts from the 
 ('Illy instruinents recorded in this ottice wliicli mention or refer to (ili^criU 
 liWjierty siijficiently /<>>' Idt'iitiji(-iitiiin). Tiiis alistvact docs not piU'iiort to 
 give entries from the ( ieneral ReiJtister. 
 
 Dated at tliis day of A. I). • at 
 
 the iimir of i' ^ 
 
 ■, L. S. 
 Regislrar, <;■ Deputy-Rei,'i.-tiar. l.-'^J 
 
 in 
 
 C-i) No Registrar slmll be liable in respect of entrie.s of Nonliability 
 strninents or errors or niistake.s in the entries of instrntnents erro"r"or'" 
 or in respect of omissions by a.iy of his predecessors in the omigBions. 
 otfite of Registrar, nor for any defect or inaccuracy in any 
 abstract or certificate arising from such error, mistake or 
 omission, unless he had become aware or had knowledge of 
 the error or mistake in the said entries, or unless such abstract 
 or certificate shall be defective or inaccurate to the knowledge 
 of the Registrar or his deputy or the clerk by whom such 
 abstract or certificate is made or signed. 5u V. c. 21, s. 27. 
 
 'iH. Every Registrar under this Act shall have a seal of Registrm to 
 office, to be approved of by the Inspector, and on request of Jjf 0^^^®'*' 
 any person, shall furnish an exemplification or certified copy 
 under his hand and .seal of office, of any instrument or 
 memorial deposited, registered, or filed, and kept in his office 
 as Registrar, which exemplification or certified copy shall, 
 subject to section 47 of The Evidence Act, be received as prima 
 facie evidence in every Court in Ontario, in the same manner ^Z^ ^*^''*' 
 and with the same effect as if the original thereof, in his 
 office, was produced ; and no Registrar or Deputy Registrar 
 shall be required to produce any paper in his custody as Regis- Not hound tn 
 trar or Deputy Registrar, unless ordered by a Judge of one of 1'^"^"!^''^'^"^ 
 the Courts of Ontario, which order shall be produced to the on order of 
 officer issuing the subpoena requiring such production, and * J"'*!?"- 
 shall be by him noted in the margin of the subpoena, and 
 signed by such officer. 56 V. c. 21, s. 28. 
 
 [As to filing a certified copy in Court in lieu of original 
 produced on suhjwena, see Cap. 73, sec. 4^'. 
 
 BOOKS OF OFFICE. 
 
 *i9. — (1) The treasurer of the county or city .shall provide Trensurerto 
 a tit and proper registry book for each township, reputed wks."^'^"'" ' 
 township, city, town, town plot laid out by the Crown, and 
 incorpoiated village, the limits whereof nre defined by law, 
 and all index and other books required for the business of the 
 office ; and all registry books shall be as nearlj^ as may bo of 
 the like size and description as those heretofore furni.shed, and 
 shall continue to be of one uniform size as nearly as j)racticable ; 
 
70S 
 
 Chap. 13f). 
 
 HEOISI RATION OF IlKEDS. 
 
 Sec 29 (1). 
 
 General 
 registry book, 
 
 c 
 
 I 
 &■ 
 
 if: 
 
 i 
 
 r 
 
 \ 
 
 New books. 
 
 and from the time tlie books are so provided and n ccived at tlio 
 Reqfistry OiTice, the person who holds and executes the office 
 of R(!gistrar, shall keep an<l cause to be used for that purpose, 
 a separate registry book for and of each township, reputed 
 township, city, town, town plot laid out by the Crown, and 
 incorporated vilhige, the limits whereof are defined by law, 
 within the county for which ho holds office ; and he shall also 
 keep and cause to be used for that purpose a general I'egistiy 
 book for the whole county, in which shall lie lecorded all 
 wills, probates, grants of administration and instruments in 
 which there is a general devise, conveyance, lelease, acknow- 
 ledgment or power affecting lands without local description, 
 and in which book an alphabetical index of the names of all the 
 parties mentioned by name in every such instrument shall also 
 be kept ; and whenever any Registrar requires a new registry 
 book, or any other book for the nse of his office, the same shall, 
 on his application therefor, in writing, be furnished to him by 
 the treat^urer, and all books so furnished, shall be paid tor by 
 the treasurer out of the county or city funds, as the case 
 may be and all books so furnished, used and kept, shall be 
 deemed to be the property of Her Majesty for the use and 
 benefit of the public; and the Inspector shnll have piower, 
 when, for the despatch of business, he finds it necessary, by 
 order in writing, to permit more than one registiy book to be 
 in use at the same time for the same municipality. 56 V. 
 c. 21,s. 29. 59 Y. c. 29. s. 1. 
 
 Index of wills (2) Where prit^;- to th(! 7th day of April, 1 (S96, wills had been 
 omitted from recorded in the separate books of a registry division, but not 
 istrybookf i" the general registry book thereof when the same ought to 
 have Ijeen recorded therein, the Inspector shall have the power, 
 by order in writing, to direct that an alphabetical index of 
 the names of all parties mentioned by name in .such wills and 
 designating the book or books and the pages thereof in which 
 such wills are recorded shall be prepared and kept, and the 
 county or city treasurer shall, for such index and the prepara- 
 tion thereof, pay such sum a.s the Inspector may order in 
 writing. 59 V. c. 29, s. 5. 
 
 General reRis- (fi) From and after the first day of July, 1899, the general 
 try book, what regiatr}' book shall be used for recoiding wills, probates, grants 
 ' of administration, and powers of attorney, in which there is a 
 general devi.se or power affecting lands without local descrip- 
 tion, and after the said date, except as aforesaid, no other 
 instrument which afi'ects lands without local description, shall 
 be registered unless the instrument when offered for registra- 
 tion, in addition to the ordinary pioofs for registration, has 
 attached to it a statutory declaration by one of the parties to 
 the instrument, or by his attorney under registered power of 
 attorney or by the heirs, (xecutors or administrators of such 
 party, to the effect that the instrument affects lands within the 
 county, and giving a local or general description of such lands, 
 sufficient to enable the san-.e to be traced or a.seertained by a 
 
29 (1). 
 
 at tlie 
 
 office 
 
 wrposo, 
 
 .'piited 
 
 n, and 
 
 y law, 
 
 all also 
 
 egistiy 
 
 l.-d all 
 
 >iits in 
 
 cknow- 
 
 iption, 
 
 all the 
 
 all also 
 
 egistry 
 
 lie shall, 
 
 him by 
 
 I toi- by 
 
 ,he case 
 
 hall be 
 
 Sec. 32 (2). 
 
 REOISTRATIOX OF DEEDS. 
 
 Chap. 136. 
 
 709 
 
 surveyor, and thereupon such instrument sliall be registered in 
 the proper s(!piii'ate registry book and particulars thereof 
 entered in the abstract index and in all other books in the 
 same manner as if the instrument itself had contained the 
 local description of the lands. 62 V. c. IG, s. 1. 
 
 ISO. If the treasurer refuses or neglects to furnish such If the trea- 
 books within thirty days after application therefor, the Registrar t"' prowfe""** 
 may provide the same and recover the cost thereof from the books. 
 municipal coipoi-ation of the county or city in ilefault. od 
 V. ^ 21, s. 30. 
 
 •tl. The Judge of the County Court or Warden of the County judKe, 
 county, or Mayor of a city, or the Stipendiary Magistrate of ^fpendiary 
 the district shall give a certificate respecting each registry or inagistrate 
 other book, so furnished or provided, in the form of Schedule <=^'^''fy books. 
 D to this Act, or to the like effect, arid in case of refusal shall 
 be liable to the same penalties as ai'c imposed by section 34 of 
 this Act. 50 V. c 21, s. il. 
 
 Provision 
 when any 
 place is separ- 
 ated from a 
 County. 
 
 Certain books, 
 etc., to be 
 transferred. 
 
 IVi. — (1) Where any county, city, town, town plot laid out by 
 the Crown, incorporated village, township, reputed township or 
 place, making part of a county wherein a sepai-ate Registry 
 Office is or has been kept, is or has been detached from some 
 union or county and set apart for registration purposes, or 
 attached to or made part of another county for which a sepa- 
 rate Registry Office is also kept, or where a separate Registry 
 Office is established in any county or junior county, according 
 to the previsions of this Act, the Registrar of the county from 
 which such localities are so detached, shall deliver to the Regis- 
 trar of the county set apart, or of the county whereunto the same 
 is attached, the registiy book or books and all other books and 
 indexes which have been kept according to the statute, exclu- 
 sively for such cor.nty, city, town, town plot, incorporated vil- 
 lage, township or reputed township or place, the original 
 memorials and original duplicates of all deeds, conveyances and 
 wills of, o'' relating exclusivelj^ to, any lands within the same, 
 and all other instruments, anfl all maps of cities, towns or 
 villages "within the same, lodjjed accordin^r to law in his office. 
 
 (2) Such first mentioned Registrar shall also deliver an Delivery of 
 abstract index book of all titles to lands within each of the ^l^;;^^''"^^^?^^^*'' 
 detached localities, registered before separate registry books books! etc. 
 were kept for each township or place ; and also a proper 
 registry book containing full and complete copies of all memo- 
 rials and other registered documents affecting such lands, 
 which by reason of their relating to two or more localities, 
 cannot be delivered, or which though affecting one locality 
 are entered in a registry book that is not delivered over, such 
 copies being entered in the book in the same order and rela- 
 tion in which they were originally inserted, and there being 
 inserted on the margin of the book opposite to each memorial 
 or instrument, the number thereof and the particular time at 
 
710 
 
 Chap. !•%. 
 
 UKOlSTRATrON OF DEEDS. 
 
 Sec. 32 (2). 
 
 C 
 
 t 
 c/: 
 
 C 
 CD 
 
 5 
 
 which the memorial or instrument was originallv recorded as 
 endoi'se<l on the back thereof by the Rej?istrar or his Deputy, 
 at the time of the original registration thereof, and the book 
 ihall be accom|)anied by an alphabetical inde.x: of names. 
 
 C'lipiej' (if in 
 stniments 
 in general 
 I'i'ifistrv incik, 
 etj. 
 
 also deliver as 
 copy of every 
 
 11. nv 8\icb| 
 UijUs ilo.ilt 
 witli. 
 
 I'euiilty mi 
 registrar re- 
 fusing to 
 ileliver 
 l))iik!ii etc. 
 
 (3) Such first mentioned Uegistrar shall 
 aforesaid a proper registry' book containing a 
 will and other instrument registered in any general registry 
 book in which the names of any of the parties thereto have 
 been entered in the alphabetical index kept for the locality 
 so being detached ; and shall also deliver a true copy of the 
 alphabetical index attached to anj' general registry book ; he 
 shall also carefull}'^ compare all such entries with the original 
 entries in the registry books in his office and indorse a cei'- 
 tificate to that effect in each book befoi-e delivering the same. 
 Instruments received by the Registrar of one county or 
 Registry Division from the Registrai- of another after the year 
 1885, shall be copied by the Registrar b}' whom they were or 
 are received. 
 
 (4) The Registi'ar receiving such books, and his successors 
 shall keep the same among the registry books of his office, and 
 shall deal with them in all respects in like manner, as those 
 originally supplied to and kept therein. 56 A', c. 21, s. 32. 
 
 I{tJ. Any Registrar who refuses to delivei* the books, plans, 
 duplicates, indexes or memorials, aforesaid, within six months 
 after demand in writing tlierefoi', made upon him by the Reg- 
 istrar entitled to receive the same, shall upon conviction 
 thereof, before any Court of Oyer and Terminer and (ieneral 
 ( !aol Delivery, forfeit his office, and be liable to a fine, in the 
 discretion of the Court, not exceeding $400. 5(1 V, c. 21, s. 33. 
 
 Jieh-iatrar 
 reni.ivcd or 
 resii^aint? to 
 liehver \\\\ 
 books to new 
 roijistrftr, etc. 
 
 154. In case a Registrar is removed from or resigns his 
 office, he .shall forthwith deliver up all books, ))lans, instru- 
 ments, memorials and indexes in his possession as Registrar to 
 the person who is appointed Registrar in his stead, or to any 
 ofhei' person who may be specially appointed in writing, by 
 Her Majesty's Attorney-General of Ontario to receive the 
 same, and if the Registrar refuses to do so, the Attorney- 
 General may direct the sheriff of the county to seize and take 
 isf of refusal" immediate possession of the spmc wheresoever found, and the 
 Registrar so offending shall be liable to a fine, in the discretion 
 of the Court, not exceeding !$2,000, and to any term of im- 
 prisonment, if the Court thinks fit to impose it, in addition to 
 the fine, not exceeding one year. 56 V. c. 21, s. 34. 
 
 PrdL'oedingaiu 
 
 >\'h6ii auy 
 ))oik liecuiuBii 
 unfit for fur- 
 tlier use copy 
 to he made. 
 
 J15. Where in any Registry Office, any book from age or 
 use, is becoming obliterated or unfit foi- futu-e use, the Inspec- 
 tor shall, by directions in writing under his hand, order such 
 •^ook to be re-copied in a book of the same description as that 
 .squired under section 29 of this Act, so far as the same 
 can be deciphered by examination thereof and of the original 
 
Sec. :36. 
 
 HKGISTIUriON OK DEEDS. 
 
 Chap. im. 
 
 711 
 
 rneniorials relating thereto, which book having the order of 
 the In.spector for the copying thereof, under the hand of 
 the In.spector, inserted at the beginning of the book, and 
 having the affidavit or declaration of th<? Registrar or his 
 deputy, at the end of the book, to the effect that the book so 
 copied i.s a true copy of the original book of which it purports 
 to be a copy, shall be to all intents and purposes, accepted and 
 received as the original book, and as prima facie evidence Origiiml to be 
 that the copy is a true copy of the original book ; eveiy P''®""''^^' • 
 original book shall nevertheless, be carefully preserved, 
 nothwithstanding a copy thereof has been made, and eveiy 
 Registi'ar or his Deputy, shall be obliged to make his affi- 
 davit or declaration in this section mentioned ; and the 
 Inspector shall have power to order any book wliicli !.■* 
 out of repair and unfit for use to be repaired in such b(MSfR,'m8i)8, 
 manner as he thinks neces.sary; and he shall also have etc. 
 power to order plans and maps deposited in any Registry 
 Office, to be copied, mounted or bound, to be preserved in such 
 manner as he thinks necessary : and he shall in like manner 
 have power to order as many counterparts or copies of any 
 aKsti-act index book '„.) ie made as he shall deem necessary f()i' 
 the public convenience ; also to order new plans and surveys 
 to be made of any locality or territory in any Registry 
 Divisicm which in his judgment have become necessary, whether 
 such locality or territory has becTi heretofore suljdividi-d 
 according to registered plan or not, and to order new abstract 
 indexes to be made when the indexes in u.se have become com- 
 plicated or otherwise inc(mvenient. .51) V. c. 21, s. .'(5; 57 V. 
 c. 85, .s. 4: (]-2 V. c. 16, .s. 2. 
 
 Hi*. The Registrar .shall, in a proper bo'^k kept for the pur- j^dex'ofSotg 
 pose, and called the "Abstract Index," keep entered under a 
 separate and distinct head each separate lot or part of a lot 
 of land as originally patented by the Crown, or as defined on 
 any plan of the subdivision of .such land into smaller sections 
 or lots after such plan has been filed in the Registry Office ; 
 and every instrument registered on and after the first day of 
 January, 1866, mentioning such parcel or lot of land or other 
 subdivision, and the names of every per.son to each instrument, 
 and the nature of it (such as a " Will," " Grant," " Lease," 
 " Power of Attorney,") the numl)ers of registration of all such 
 instruments, for each municipality in which the land mention- 
 therein is situate, and the da3', month, and year, of their regis- 
 tration, and the consideration or mortgage money mentioned 
 therein, and such a sufficient description of the land therein 
 mentioned asv/ill readily identify its location, shall, by the Regis- 
 trar, in addition to all entries b^' law required, be entered in 
 regular order and rotation under the proper heading of each 
 such separate parcel or lot of land mentioned in such instru- 
 ment, and the book or books, to be so kept by each Registrar, 
 for the purpose of making the said entries, shall be in the form 
 as nearly as may be of Schedule E to this Act. 56 V. c, 21, 
 s. 36. 
 
712 
 
 Chap. 130. 
 
 UEGISTRATION OF DEEDS. 
 
 Sec. 37. 
 
 A'j'''»^''t'<=ai 117. Kveiy Registrar shall also, for each township, city, 
 
 for each ^ town, and incorporated village, keep an Alphabetical Index of 
 
 locality. names, exhibiting in columns the number of eac.i instrument, 
 
 Llie names of the different grantors, and the names of the 
 
 grantees, according to the form of Schedule F to this Act. 
 
 '.■)6 V. c. 21, s. 37. 
 
 c 
 
 z 
 
 ^• 
 
 E 
 
 c 
 
 3 
 
 Registration 
 of leases. 
 
 Proof of 
 refifiBtration. 
 
 INSTRUMENTS THAT MAY BE REGISTERED. 
 
 ^'h''^h""' "'^ 38. Subject to the provisions of the next section, all instru- 
 reRJstered'' ^^ ments mentioned in section 2 of this Act may be registered. 
 50 V. c. 21, H. -AH. 
 
 30. This Act shall not extend to any lease for a term not 
 exceeding seven years, where the actual possession goes along 
 with the lease ; but it shall extend to every lease for a longer 
 term than seven year.s. 50 Y. c. 21, s. 39. 
 
 40. — (1) In the case of an instrument other than a will, grant 
 from the Crown, Order in Council, by-law or other instrument 
 under the seal of any corporation, or certificato of judicial pro- 
 ceedings, a subscribing witness to the instrument shall in an 
 affidavit setting forth his name, place of residence, and addition, 
 occupation or calling in full, swear to the following facts : 
 
 (a) To the execution of the original, and of the duplicate if 
 any there be ; 
 
 (b) To the place of execution ; 
 
 {('.) That he knows the parties to the instrument, if such 
 be the fact ; or that he knows such one or more of 
 them, according to the fact ; 
 
 . (d) That he is a subscribing witness thereto. 
 
 (2) The affidavit may be in the form of Schedule G to this 
 Act, or to the like effect. 50 V. c. 21, s. 40. 
 
 Form of 
 affidavit. 
 
 Affidavit to be 41. The affidavit shall lie made on the instrr.ment or securely 
 
 registered. attached thereto, and the instrument and affidavit shall be 
 
 coj)ied at full length in the Registry Book. 56 V. c. 21, s. 41. 
 
 When differ- 4/5. Where an instrument is executed by one or more 
 ent ^vitneH^eB ^f the parties thereto, but not by all of them, in presence of a 
 
 see different . . '■ ., , , *^ i? xi i.i i- 
 
 grantors Witness or witnesses, and by one or more of the other parties 
 
 execute. thereto in presence of another witness or other witnesses, then 
 
 and in such case the witness or one of the witnesses, whether 
 the same be so executed in the same or in different places, 
 shall make an affidavit in accordance with section 40 of this 
 Act as to each separate and distinct execution of the instru- 
 ment before the same is registered. 56 V. c. 21, s. 42, 
 
 43. An instrument within the meaning of section 2 of this 
 Act, not purporting to convey the land therein mentioned 
 
Sec 46 (1). 
 
 REGISTRATION OK DEEDS. 
 
 Chap, 136. 
 
 713 
 
 city, 
 lex of 
 iinent, 
 )i the 
 
 Act. 
 
 but which in its nature is, or purports to be given as a security Aftidayitof 
 for the payment of a debt or liability incurred by the person caseof Ingti-u. 
 giving the same in respect of a purcha.se or delivery of any ?nent,s given 
 goods or in respect of an advance or loan of any money, {[Jj^ghaga ^Jr 
 shall not be registered unless the atlidavit of execution delivery of 
 states that the instrument was read over and explained to the ^°° *' 
 owner or person executing the same, and that he appeared per- 
 fectl}'^ to understand the same, and was informed that it might 
 be registered as an incumbrance on his land, such atHdavit to 
 be in the form of Schedule H to this Act or to the like effect. 
 .56 V. c. 21, s. 43. 
 
 44. No registration under this Act of any instrument shall Certij de- 
 be deemed or adjudged void, or defective by reason of the (fa'^yfj; no" to 
 name, place of residence, addition, occui)ation or calling of the invalidate 
 
 subscribing vatness thereto not being set forth in full, or being 
 improperly or insufficiently given or described in the affidavits 
 mentioned in and required by sections 40 and 4.S, nor by 
 rcfison of any clerical error or omission of a merely formal or 
 technical character in the affidavit. .56 V. c. 21, s. 44. 
 
 registration. 
 
 45. Any instrument may be registered under this Act, not- Name of 
 withstanding that the Christian name or names of the sub- „ot be 86°*° 
 scribing witness making the affidavit is or are oidy set forth forth in full 
 therein by initial letter or letters, or abbreviation or abbrevia- '° * *^ ' 
 tions, and not in full. 56 V. c. 21, s. 45. 
 
 40. — (1) Every affidavit made under the authority of this Act Before whom 
 shall be made before some one of the following persons: ° e sworn 
 
 1. If made in Ontario, it shall be made before — In Ontario. 
 
 The Registrar or Deputy Registvai' of the county in 
 which the lands lie, 
 
 Or before a Judge of the Supreme Court of Judicature, 
 
 Or, before a Judge of the County Court within his 
 county. 
 
 Or, before a Commissioner autliorized by the High 
 Court to take affidavits, 
 
 Or, before any Justice of the Peace for the county in 
 which the affidavit is svvorn. 
 
 Or, before aNotary Public having authority in Ontario ; 
 
 2. If made in Quebec, it shall be made before — In Quebec. 
 
 A Judge or Prothonotary of the Superior Court or Clerk 
 of the Circuit Court, 
 
 Or, before a Commissioner authorized under the laws 
 of Ontario to take, in Quebec, affidavits in and for 
 any of the Courts of record in the Province of 
 Ontario, 
 
714 
 
 Chap. 136. 
 
 BEr.ISTUATION OF DEEDS. 
 
 Sec. 4() (1). 
 
 c 
 
 % 
 
 7 
 
 In T'liitad 
 Kingdom. 
 
 In a British 
 
 Co)onv. 
 
 In a Foreign 
 Country, 
 
 Or, before any Notary Public in Quebec, certified under 
 liis official seal : 
 
 8. If made in Great Britain or Ireland, it shall be made 
 before — 
 
 A Judge of the Supreme Court of Judicature in Eng- 
 land, or Ireland, or of the Court of Session or the 
 Justiciary Court in Scotland, 
 
 Or, before a Judge of any of the County Courts within 
 his county, 
 
 Or, befo''3 the Mayor oi Chief Magistrate of any city, 
 borough or town coporate therein, and certified 
 under the common seal of the city, borough or 
 town corporate, 
 
 Or, before a Commissioner authorized to a'^'^iinister 
 oaths in the Supreme Court of Judicature in 
 England or in the Supreme Court of Judicature in 
 Ireland or before a Commissioner authorized by 
 the laws of Ontario to take, in Great Britain or 
 Ireland, affidavits in and for any of the Courts of 
 Record of the Pi'ovince ol' Ontario, 
 
 Or, before a Notary Public, certified under his olRcial 
 seal ; 
 
 4. If made in any British Colony, or Po.sses.sion, it shall be 
 
 made before — 
 
 A Judge of a Court of Record, or of any Court of 
 Supreme Jurisdiction in the Colony, 
 
 Or, before the Mayor of any city, borough or tow n 
 corporate, and certified under the common seal of 
 the city, borough or town. 
 
 Or, before a Notary' Public, certified under his official 
 seal, 
 
 Or, if made in the British Possessions in Imlia, before 
 any Magisti-ate or Collector, who is certified to be 
 such under the hand of the Governor of such Pos- 
 .session. 
 
 Or, before a Commissioner authorized by the laws of 
 Ontario to take in such British Colony, or Posses- 
 sion, affidavits in and for any of the Courts of Re- 
 cord of the Province of Ontario ; 
 
 5. If made in any Foreign Country, it shall be made before — 
 
 The Mayor of any city, borough or town corporate of 
 such country, and certified under the common seal 
 of the city, borough or town corporate, 
 
Sec-. .jO. 
 
 KMilSTHATIOX OF DEEDS. 
 
 Cliai). ISti. 
 
 715 
 
 ntliin 
 
 Or, before a Consul, Vice-Consul, or Consular Agent 
 of Her Majesty, resident therein, 
 
 Or, before a .liulge of a Court of Record or a Notary 
 Public, certified under his official seal, 
 
 Or, before a Commissioner authorized by the laws of 
 Ontario to take, in such country, affidavits in and 
 for any of the Courts of Record of the Province of 
 Ontario. 
 
 (2). Where an affidavit of execution is required to be made 
 out of the Province before any of the officers mentioned in 
 ( "auses 2, 3 and 4 of this section, and the officer has 
 not an official seal, it shall be sufficient for nim so to certify. 
 •)f> V. c. 21, s. 40. 
 
 41. Every subscribing witness shall be compellable, when witnesses 
 necessaiy, by order of the Judge of the High Court or of a compelhibie 
 County Court, to make affidavit or proof of the execution of atfidavit. 
 any instrument for the purpose of registration under this Act 
 and to do all other acts necessary for the same purpose, upon 
 being paid or duly tendered his reasonable expenses therefor. 
 56 V. c. 21, s. 47. 
 
 4H. The proof may be either by affidavit or by affirmation Attinuation or 
 or dec'aration, when by the law of the country wherj tlie '^'""'"Y"'''"" '° 
 proof is niado an affirmation or declaration may be substituted 
 for an affidavit ; and the Registrar shall receive the instru- 
 ments so proved without any other or fui'ther proof of their 
 due execution. 50 V. c. 21, s. 48. 
 
 40. None of the persons authorized to take affidavits by this i>artieg not to 
 Act shall take an affidavit of the execution of an instrument take affidavits. 
 in case he is a i)arty to the instrument ; nor shall such 
 affidavit for the proof of an instrument executed after the witnesses to 
 1st day of Januaiy, ISoG, be taken from a witness, unless wRn. 
 the witness has suliscribed his name in his own handwriting 
 as such witness. oO V. c. 21, s. 49. 
 
 50. Where the witnesses to an instrument are dead or are Witness. 
 out of this Province, or have become insane, idiotic, imbecile, "*"''• '*^'" 
 or of unsound mind or understanding, and whether so found 
 by inquisition or not, or where an instrument, not by law 
 requiring an attesting or subscribing witness thereto, has 
 been executed without an attesting or subscribing witness 
 thereto, or in case it is proved to the satisfaction of the Judge 
 in this section mentioned that the place of abode or residence 
 of such first above mentioned witnesses is unknown, any per- 
 son who is or claims to be interested in the registration of the 
 instrument, may make proof before a Judge of a County 
 Court in Ontario, of the execution of the in.strument,and upon 
 a certificate (according to the form of Schedule T to this Act) 
 
 ■^ III- 
 
 cnt. 
 
710 
 
 Chap. 136 
 
 KF.(iISTK.VTI()N' OF DKKDS. 
 
 Sec. 50. 
 
 beinj; indorsed on the instrument and sinjned Ity the Judije, that 
 the Judge is satisfied by the proof aihluced of the due execu- 
 tion of the insti'unient, tlie {ie<ristnir shall reiiister the instru- 
 nient and ceitiH(;ate. i>(i V. c. 21, s. 50. 
 
 •4 
 
 s 
 
 c 
 % 
 
 if. 
 
 09 
 
 5 
 
 Seal of Court 5I. The seal of any Court of Record affixed to an instru- 
 poration with '"'^"^ "^ wiitinj,', of itself, and the seal of any coiporation 
 Mienatureof affixed to any such instrument with the signature of tl»e sec- 
 Bufficefor retary or |)residing officer thereof, shall be sufficient evidence 
 refjistration. of tile due execution of the instrument l)y the Judge, Regis- 
 trar, Clerk or officer of the Court signing the same, or by the 
 corporation respectively, for all purposes respecting the legis- 
 tration thereof, and no further evidence or verification of the 
 execution shall be required for the purpose of registration. 
 50 V. c. 21, s. .51. 
 
 .Tudgraent ,^3. Every judgment affecting land may be registered in 
 
 niaTbe^ """^^the Registry Office of the county or other Registry Division 
 
 registered. where the land is .situate, on a certificate signed by the proper 
 
 officer of the Court setting forth the substance and efre<*t of the 
 
 judgment, and the land affected thereby. 56 V. c. 21, s. 54. 
 
 [As to rejjisteriiKj and vacating certificates of lis pendens, 
 see Judicature Act, Cap. 51, sees. 97 to 100.] 
 
 Registrar to 
 deliver 
 certified copy 
 of power of 
 attorney 
 registered 
 
 Kegistration 
 of certified 
 copy. 
 
 Registration 
 of powers of 
 attorney 
 deposited in 
 land titles 
 offices. 
 
 mi. Where a power of attorney or any substitution thereof 
 is registered, the Registrar shall deliver a certified copy or 
 copies of such power or substitution as may be required of 
 him, and of all the documents aforesaid connected witli or 
 relating to the same, under his signature and seal of office, in 
 which certificate he .shall declare the time, place and other 
 particulars of registration as in other cases under this Act, 
 and he .shall also declai-e that the copy, which he i<o delivers, is 
 a true copy of the power or substitution, and of all the other 
 domiments connected with or relating to the same of whicU 
 they respectively purport to be copie.s, and that the originals 
 have been duly deposited in his office according to the statute 
 in that behalf 50 V. c. 21, s. 55. 
 
 54. Every such certified copy where the original power or 
 substitution is certified to be deposited as aforesaid, may be 
 registered in any other Registry Office, by deposit thereof, 
 without production of the original power or substitution, and 
 without proof of any kind other than the production of the 
 copy .so certified as aforesaid. 56 V. c. 21, s. 56. 
 
 5t». Where a power of attorney or any substitution thereof 
 is deposited in an Office of Land Titles, a copy thereof certified 
 by the Master, or a Local Master, may be registered in any 
 Registry Office in the same manner as a copy of a power of 
 attorney certified by a Registrar may be registered under 
 section 54 of this Act. 56 V. c. 21, s. 58, 
 
S.C. 60. 
 
 KEOISTUATION OF HEEDS. 
 
 Chap. 136. 
 
 717 
 
 50. 
 
 an. A copy of a power of attorney or substitution, certi- Cciiy /(Wmc 
 fied us r('(|uir('(l by tb(> three next precediuff sections, shall be "" *"'""■*• 
 received in all cases in place of the (iriyinal as prlvui facie 
 evidence of the t)riginal power or substitution and of due 
 execution, provided that notice has l)een given in the manner 
 set forth in section 47 of Tlte Emdence Ad. ,J{i V. c. 2l,s. .'7. J72V'^'''*" 
 
 .■»!. Where it is desired to register an instrument, other lleRistration 
 than a, will, in more than one remstry office, the san)e may be "' inatniment 
 
 , . ,., ■•11 ,. in sevoral 
 
 registered m like manner as is provided as to powers or attor- renistry 
 noy by sections H'.i and .')4 of this Act, and a certified copy "**ice8. 
 of such instiumtnt shall be received as evidence to the same 
 extent as provided for in section .5(i of this Act, respecting 
 powers of attorney. oG V. c. 21, s. 5!). 
 
 58. Every notarial copy of any instrument executed in the Regintration 
 Province of Quebec, the original of which is filed in any °^ "."*"**' 
 notarial office according to the law of Quebec, and which can- instruments 
 not therefore be produced in Ontario, and every piothonotarial ^J""^^*'' '" 
 copy of any instrument executed in Quebec shall be received 
 in lieu of and as prima facie, evidence of the original instru- 
 ment, and may be registered and treated under this Act for all 
 purposes as if it were in fact the original instrument, and such 
 notarial or prothonotarial copy with the seal of the Notary or 
 Prothonotary attached, shall be registered without any other 
 or further proof of the execution of the same, oi- of the original 
 thereof. 56 V. c. 21, s. 60. 
 
 INSTRUMENT IN FOREIGN LANGUAGE. 
 
 59. Where an instrument is written in any language other RegisterioB 
 than English, it shall be necessary to produce with the instru- instruments 
 mentand the affidavit of execution required by this Acta trans- }ftngua|ceB. 
 lation into English of such instrument, togetherwith an affidavit 
 by the translator, stating that he understands both languages 
 and has carefully compared the translation with the original 
 instrument of which it purports to be a translation, and that 
 the same is in all respects a true and correct translation of 
 such origiual instrument, and the Registrar shall not enter the 
 said instrument in the language in which it is written as 
 aforesaid, but may copy from the said translation. 58 V. c. 22, 
 s. 1 ; 60 V. c. 15 ; Sched. A (70). 
 
 iMANNER OF REGISTERING. 
 
 Generally. 
 
 60. Unless where otherwise provided every instrument that ingtrumep.i,g 
 maybe registered under this Act shall be registered by the *" ^ ^^f'"- 
 deposit of the original instrument or by the deposit of adupli- unless other- 
 cate or other original part thereof with all necessary affiilavits wise provi.jec). 
 and the same shall be registered at full length, including every 
 certificate and affidavit, excepting certificates by the Re^jistrar, 
 
7I« 
 
 Chap. 136. 
 
 UEtilSTKATlON OK DKKDS. 
 
 Sec. «)(). 
 
 accompan\ nig the same, upon and by the delivery to the ling- 
 istrar of tlie original instrument, but when one is executed, or 
 when such instrument l.-t in two or more original parts, upon 
 and by delivery of one of such parts. .50 V. c. 21, ss. (Jl, 72. 
 
 I 
 
 i 
 
 r 
 
 I 
 
 Effect of. 
 
 MortKag^s lint (Jl. — (1) The mortgagee named in any mortijage, executed 
 lufnll' "" <'i" after the 5th day of Ma}', 1S94, or the solicitor or agent 
 
 of such mortgagee, may endorse thereon the words " Not to be 
 reiristered in tull,"and in such ca.se the Registrar .shall register 
 the mortgage in the manner ])rovid»!d by this Act, in the cas" 
 of mortgages affecting lands, except that .such mortgag*^ shall 
 not be copied into the books kept for that purpose in the Reg- 
 istry Office. The mortgage shall be numbered as other iristrn- 
 jnenti? are I'equired to be numbered in the proper registry book 
 in its proper order, and the marginal note made as required by 
 section 67 of this Act. The Registrar shall at the time of the 
 registration of a mortgage not copied in full, enter opposite 
 the number in the registry book the words " Mortgage not 
 copied in full " and shall also give the date and names of 
 parties thereto. 57 V. c. 3.5, s. 1 (1) ; .58 V. c. 22, s. 2. 
 
 (2) Registration under this section shall have the same effect 
 and consequences as and shall be equivalent to a registration 
 under sections (30 and 90 of this Act, and all other sections 
 thereof relating to the registering of instruments which are reg- 
 istered at full length, and in cases where a mortgage has not been 
 copied in full the mortgagee and those claiming through or under 
 him .shall be entitled to all the benefits and advantages, and to all 
 the legal and equitable rights which would accrue to him or 
 them had the mortgage been registered at full length. This 
 subsection shall apply to all registered mortgages not copied 
 in full, whether registered before or after the passing of this 
 Act. 58 V. c. 22, s. 8. 
 
 (3) Upon registration in the manner provided by subsection 
 1 of this section, the fee payable for registration of any mort- 
 gage, not including more than four distinct parcels of land, 
 having a .separate heading in the abrtract index, shail be %1, 
 and for each additional lot or part of lot thereafter requiring 
 entry to be made under a separate heading in the abstract 
 index. 5 cents ; and where the instrument embraces two lots 
 or parcels of land situate in different municipalities in the 
 same county there shall be paid a further fee for each addi- 
 tional municipality of twenty-five cents. 62 V. c. 16, s. 3. 
 
 Subsequent (4) After the registration of any mortgage in the manner 
 
 uai "^ '" i" this section provided, the Registrar, upon the application of 
 an}' person claiming to be interested in the mortgaged lands, 
 and upon payment of the fees prescribed, less the amount 
 already paid for registration, shall cause such mortgage to be 
 copied out in full in the book kept for that purpose in the 
 Registry Office. 
 
 Fee on 
 
 ref^intration. 
 
 
Sec. 65. 
 
 UEOISTItATION OF DEEDS. 
 
 Chap, 188. 
 
 71{» 
 
 (5) T'.ie Registrar .sIiiiU indicate in the abstract index, in the Entry in 
 ca.se of the regi.strntion of every mortgage hereafter endorsed where mort** 
 " Not to be registered in full," that tlie sanie has not been «»«« not reKirt- 
 ()2 V. c. 16. s. 4. 
 
 registered in full 
 
 tered in full. 
 
 (G) In this section the word " mortgagee" shall include the 
 assignee of a mortgage, and the word " mortgage " shall 
 include an assignment of a mortgage. 60 V. c. 14, s. 18. 
 
 ti'i. — (1) Where any instrument, signed or executed by any .Sijeoial entry 
 person by attorney, shall hereafter be registered, it shall be the when'iiwtru- 
 duty of the Kegistrar on registration thereoi to enter a note mentexecuUil 
 of the fact of such signature or execution by attoi-ney, giving by attorney, 
 the name of the attorney or attorneys, as the case may lie, on 
 the abstract indexes and on all abstracts of title thereafter fur- 
 nished by him i-clating to the lands attticted therebv. 50 V. 
 c. 21, s. 02. 
 
 (2) From and after the first day of January, lf)00, no in- Registration 
 strument purporting to be signed or executed by any person attome" ^^en 
 by attorney, shall be registered in any registry office, unless instrument 
 at the time of the registration of such instrument, or prior attorney. ^^ 
 thereto, the original power of attorney, or a copy thereof cer- 
 tified for registiation, is registered in the same registry office ; 
 provided, however, that this clause shall not apply to instru- 
 ments purporting to be executed by attorneys or commission- 
 ers for the Canada Company or the Trust and Loan Company, 
 provided that when such power of attorney, or a copy thereof, 
 is lost and cannot be produced, application may be inade to a 
 judge for an order directing the registration of such instru- 
 ment, and thereupon the same may be registered. 62 V. c. 16, 
 s. 5. 
 
 63. In case an instrument in two or more original parts is lostrumenta 
 
 - - - - - - - .. - j„ J^Q Q, 
 
 more parts. 
 
 registered, the Registrar shall endorse upon each of such origi '" **° '"' 
 
 nal parts a certificate of the registration, in the form of 
 Schedule J to this Act, an(i any original so certified shall be 
 received as prima faciei vidence of the registration and of the 
 due execution of the same. R.S.O. 1897, c. 61, s. 44. 56 V. 
 c. 21, s. 63. 
 
 64. Where an instrument includes different lots or parcels instruments 
 of land situate in different municipalities in the same county, gev*e*raU^B in 
 it shall only be necessary to furnish cne duplicate original of different 
 such instrument with an affidavit of its execution, and the '""alitieg. 
 duplicate original and affidavit shall be copied into the registry 
 
 book pertaining to each city, town, incorporated village, town- 
 ship, or place wherein the lands therein mentioned are situate, 
 and the Registrar shall make the neccessary entries and certifi- 
 cates accordingly. 56 V. c. 21, s. 64. 
 
 65. Every deed executed prior to jhe 4th day of March, ReRiBtiatioi 
 1808, affecting lands situate in more than one countv, and of of .deed>, cou- 
 
720 
 
 Chap. 136. 
 
 IlKCilSTUATION f)K DKEDS. 
 
 Sec. 65. 
 
 situate in which .said deed no memorial has been executed, iiiay be 
 mure than one i i • c lu l- ' i • i _ iU i i 
 
 county ami of iccoidiid III iiiiy oiio of the counties in whicli some o, the lands 
 
 which no ure nituato, upnii proof maile in accordance with thi.s Act, and 
 
 bcenexecuted. '" ^he othir counties by deposit of a copy of every such deed 
 
 an<l proof certifieil a.s is j)rovided with respect to pow(!rs of 
 
 attorney in sections o'i and 54 of tliis Act. 50 V. c. 21, h. G5. 
 
 Copying into 
 regutry book. 
 
 I 
 
 c 
 
 C 
 
 r 
 
 JO 
 
 Filincr inatru- 
 niHut and 
 affidavit. 
 
 Certificate and 
 its effect. 
 
 Registrar to 
 see that all 
 copies in 
 registers are 
 correct. 
 
 (J<V — (I) The llefjistrar or Deputy Registrar of tlie county in 
 which the laiuls are situ.ite shall, upon jtroduction to him of • 
 the original instrument, duplicate or other original part there- 
 of, together with an affidavit of execution, make an entry 
 th;^reof in the abstract and alphabetical index books, and enter 
 the said instrument in the registry book, in the order in which 
 it is received, and he shall tile the same with the affidavit of 
 execution, and he .shall endorse a certificate on every such 
 instrument and upon every duplicate of the instrument in the 
 form of Schedule J to this Act, and .shall therein mention the 
 certain year, month, day, hour and minute in which the in.stru- 
 ment is entered and registered, expressing also in what book 
 the same has been entered, and the number of registration ; 
 and the said Registrar or his Deputy shall sign the said certifi- 
 cate when so endorsed, which certificate shall be allowed and 
 taken as evidence of the respective registries in all courts. 
 
 (2) It shall be the duty of the Registrar or hi.s Deputy 
 or clerk appointed for that purpose, to see that all copies of 
 instruments in the registers are true copies, and the Registrar 
 or his Deputy or clerk .shall certify all such copies by writing 
 a memorandum containing the words "examined (date) certified 
 true copy " in the margin opposite each copy in the register, 
 such memorandum to be signed by the initials of the Registrar 
 or his Deputy or clerk making the examination. When a 
 register is completed, the Registrar or his Deputy or clerk, as 
 the case may be, shall at the end thereof show by statutory 
 declarations that the copies contained in such register and 
 certified by them respectively, are true copies of the original 
 instruments of which they purport to be copies. 56 V. c. 21, 
 s. 66. 
 
 Pages and ^^- Every page of the registry book, and every instrument 
 
 instruments to entered therein, shall be numbered, and the certain year, month, 
 be numbered, ^^y^ hour, and minute of registration shall be entered in the 
 margin of the registry books in the form of Schedule K to this 
 Minute of Act; and the entiy shall be signed by the Registrar or his 
 
 registration in Deputy. 56 V. C. 21, S. 67. 
 margin. 
 
 Crown Grants. 
 
 Crown 
 Grants. 
 
 U8. Grants from the Crown shall be registered by producing 
 the grant or an exemplification thereof to the Registrar, with 
 a true copy sworn to by any person who has compared the same 
 with the original ; and the copy shall be tiled with the Regis- 
 trar. 56 V. c. 21, s. 68. 
 
Sec. 70 (4). llEtJISlKATION OK DKEDH. 
 
 Orders in Council. 
 
 CImp. I'M. 
 
 721 
 
 01>. Onlers of the riovc'rnor-( Icneral in Council or of tlie <)rd«r« in 
 Lieutenant-CJovernor in Council may lit; rej^'istered in the Council. 
 Registry Office of the county or other Reyi.stry Divi.sion in 
 which any land to which the Order in Council relate.s is situate, 
 by a deposit of a copy of the Order certified l)y the Clerk of 
 the Council. 5C V. c. 21, s. C9. 
 
 WiUa. 
 
 10. — (1) Every will shall be registered at full length by the HegiBtraiiion 
 production of the original will and the deposit of a copy thereof, "^ *''""• 
 with an affidavit sworn to by one of the witnesses to the will, 
 proving the due execution thereof by the testator, or by the 
 production of probate or letters of administration with the will 
 annexed, or an exemplication thereof under the seal of any 
 Court in this Province, or in Great Britain and Ireland, or in any 
 British province, colony, or possession, or in any foreign country 
 having jurisdiction therein, and by the deposit of a copy of thi 
 probate, letters of administration, or exemplification with an 
 affidavit verifying such copy. 
 
 (2) Where the copy of a will or ofletters of probate or letters ReKiHtration 
 of administration has attached to it, when left or offered for "^ i*"." "i!"*"^** 
 
 „ , . , , • 1 1 testator haa 
 
 registry, an affidavit or statutory declaration by the executor made subae- 
 
 or administrator to the effect that after making the will the <iuent convey. 
 
 testator conveyed or parted with lands in the will described by 
 
 local description, and that it wa.s not intended or desired that 
 
 the registration of the will should affect such lands, and if, in 
 
 addition, it appears by the registered entries respecting such 
 
 lands that the testator had parted with all his interest in or 
 
 title to the said lands, the Registrar shall not register, copy or 
 
 enter the will as an instrument affecting such lands, nor shall 
 
 he be entitled to any fees for registering and making entries 
 
 and certificates in respect thereof, but shall only be entitled to 
 
 the same fees in respect of the registry of such will as he 
 
 would have been entitled to had the will not contained any 
 
 devise or gift of or reference to such lands by local description. 
 
 {2} Where a will is registered by the production of the 
 
 Proof of tes- 
 
 original will, the affidavit of the subscribing witness or some tator'g death, 
 other person must state that the testator is dead, either to the 
 knowledge of the deponent, or as he has been informed and 
 believes. 56 V. c. 21, s. 70. 
 
 (4) After a will which has 'not been admitted to probate g„i,,g( yg„t 
 has been registered in the manner hereinbefore provided in registriition of 
 any registry division, such will may be registeied in any othe"" ^^^^^ ''*'^°' 
 registry division by the deposit of a copy thereof certified diviHions. 
 under the hand and seal of the Registrar of the division in 
 which such first mentioned registration took place, to be a 
 true copy of the will as recorded in the said registry division, 
 and the Registrar shall in his certificate state that an affidavit 
 vl 
 
722 
 
 Chap. 136. 
 
 REGISTRATION OF DEEDS. 
 
 Sec. 70 (4). 
 
 S 
 
 
 Regiatration 
 of letters of 
 administra- 
 tion. 
 
 Rev. Stat, 
 c. 127. 
 
 Registration 
 of notice of 
 sale. 
 
 llev. Stat. 
 c. 121. 
 
 j)roving the due execution of the will has been deposited in his 
 office. 60 V. c. 14, .s. 20. 
 
 T 1 . Letters of administration which under The Devolution 
 of Edaten Act affect land.s, may be registered in the same 
 manner as probates of wills are now registered, and the 
 Registrar shall be entitled to charge for registering letters of 
 administration, without a will annexed, including all entries in 
 respect thereof, a fee of one dollar. 56 V. c. 21, s. 71. 
 
 Notices of Sale under Mortgages. 
 
 Ti'i. — (1) A notice of sale of lands under the provisions of The 
 Act respecting Mortgages of Real Estate, and every notice of 
 exercising the power of .sale contained in any mortgage may 
 be registered in the Registry Office of the Registry Division in 
 which the lands are situated, in the .same manner as any other 
 instrument affecting the land, except that it shall not be 
 nece.s.sary to copy the notice or affidavits or declarations 
 attached thereto in any of the registers, and such registration 
 shall have the same effect, and the duties of the Registrar in 
 respect thereof shall be the same as in the case of any other 
 registered instrument except as to the copying thereof, and the 
 fee to be paid such Registrar for registering the same shall be 
 fifty cents. 
 
 (2) The affidavit or declaration for the purpose of "egister- 
 ing the notice shall be made by the person who served the 
 same, and shall prove the time, place and manner of such 
 service, and that the copy delivered to the Registrar is a true 
 copy of the notice served. 
 
 Certified copy ('^) "^ ^^VY of such registered notice and affidavit or declani- 
 to be evidence, tion certified under the hand and seal of office of the Registrar 
 
 shall in all cases bo received as prima facie evidence of the 
 
 facts therein stated. 57 V. c. 35, s. 2. 
 
 (4) Where the person who setved any notice in this clause 
 mentioned is dead or out of this Province, or where it is 
 proved to the satisfaction of the Judge in this clause men- 
 tioned, that the place of abode or residence of such person is 
 unknown, or that such person is incapable of making an affi- 
 davit or declaration of service, any person who is or who 
 claims to be interested in the registration of the notice may 
 make proof before the judge of any county court of the service 
 of the notice, and upon a certificate of such judge to the effect 
 th.it from the proof produced by (naming the person produc- 
 ing the proof and stating the evidence given) he is satisfied of 
 the due .service of the notice, such certificate to be endorsed on 
 the notice and signed by the judge, the registrar sliall register 
 the notice and certificate. 
 
 Conveyance (5) From and after the first diy of January, 1900, no instru- 
 morteage"not ment which purports to be a conveyance of lands after notice 
 
 Proof for 
 egistration. 
 
 Proof of 
 notice of sale 
 under niort- 
 
Sec. 76. 
 
 REGISTRATION OF DKEDS. 
 
 Chap. 1M6. 
 
 723 
 
 and under power of sale contained in a mortsraere, shall be *>^ be 'esri*- 
 registered until the notice shall have been i-egistered in the after registra- 
 registry division in which the lands are situated, pursuant to *'<«» o' «"* ce 
 this section. 62 V. c. 16. s. 6. "^ '" • • 
 
 [As to Rflf/istration of Orders and Judgments for AUmonj/, 
 see Cap. 51, sec. 35 ; as to Registration of Notice of Seizure by 
 Sheriff of a Mortgage, sec Gap. 77, sec. .'?•?.] 
 
 Instruments executed, before the 1st January, 1806. 
 
 1I{. The registration of all instruments executed before the RegiBtration 
 1st dliy of January, 1866, may be made through memorifils or Bxecuted*"*" * 
 by certificate or otherwise, as provided by the law in force before i«t 
 prior to the Registry Act passed in the year 1865. .56 V. •^*"- ^^*^^- 
 c. 21, s. 73. 
 
 14. The proof that would before the first day of January, Proof of regis- 
 1866, have been sufficient for the registration of any instrument atruments'" 
 executed prior to the said dato, shall be deemed sufficient for executed be- 
 the registration hereafter of any such instrument ; but in any igge etc ° ' 
 such case the instrument shall be registered at full length, and 
 the memorial and affidavit shall be deposited and filed in lieu 
 of an original or duplicate. .56 V. c. 21, s. 74. 
 
 . 75. — (1) Any instrument which has been registered by Registration 
 memorial prior to the 1st day of January, 1866, and has "nfuu^^jj^n 
 indorsed thereon a certificate of the registration thereof, may memorials 
 be re-registered at full length in the same or any other Registry regiVterej! 
 Division by the production of the original instrument and 
 the deposit of a copy thereof, with an affidavit verifying the 
 copy. 
 
 (2) In re-registering such instrument the Registrar shall 
 copy the affidavit of verification and the certificate of former 
 registration, and shall write in the margin of the registry 
 book the words " Original not deposited," and where the former 
 registration was made in the same office, the Registrar shall 
 write upon the entry of the memorial in the registry book a 
 memorandum as follows : — "Re-registered in full at No. ," 
 giving a reference to the number and volume where the full 
 registration is entered, and he shall also note the re-registra- 
 tion in red ink wherever in an abstract index the memorial is 
 entered. 
 
 (3) The Rejjfi.''trar shall also endorse upon the original instru- 
 ment a certificate of the re-registration in a form similar to 
 the ciuiKcate of registration given in Schedule J to this Act. 
 56 V. c. 21, s. 75. 
 
 Discharges of Mortgages. 
 
 TC Where a registered mortgage has been satisfied. Satisfaction of 
 whether such mortgage has been copied in full or not, the J^gigt^d. °* 
 
724 
 
 Chap. 13G. 
 
 REGISTRATION OF DEEDS. 
 
 Sec. 76. 
 
 I 
 
 c 
 
 2: 
 
 
 £ 
 
 c 
 
 50 
 
 i 
 
 Entry in mar- 
 
 Registrar, on receiving a certificate executed by the mortgagee, 
 or it' the mortgage has been assigned, then executed by 
 the assignee, or by such other person as may be entitled by 
 law to receive the money and to discharge the lortgage, in 
 gin"f register, the tbriu of Schedule L to this Act, or to the liK etiect, exe- 
 cuted in the presence of one witness, and duly proven by the 
 oath of the subscribing witness thereto, in the same manner 
 as herein is provided for the proof of other instruments 
 affecting lands, shall, if the assignment or other document ol 
 title of the assignee or other person executing the discharge 
 has been registered, register the same, and every affidavit 
 attached thereto or endorsed thereon, at full length in its 
 proper order, in the registry book, and shall number it in like 
 manner as other instruments are required to be registeied and 
 Effect of such numbered, and the same .shall be deemed a dischp*rge of the 
 registration, mortgage, and the certificate so legistered .shall be as valid and 
 effectual in law as a release of the mortgage, and as a convey- 
 ance to the mortgagor, his heirs, executors, administrators, or 
 assigns, or any person lawfully claiming by, through or under 
 him or them, of the original estate of the mortgagor. 56 V. 
 c. 21, s. 76 (1) ; 58 V. c. 22, s, 3, s. 4, part; 59 V. c. 29, s. 2. 
 
 RejiiBtration 11. In any case where a mortgage shall hereafter be paid off" 
 of discharge j^y. ^^^y person advancing money by way of a new loan on 
 ifage paid off mortgage on the same property and the mortgage so paid oi' 
 by a new loan ^y^ t|,g discharge thereof is held by the mortgagee making the 
 new loan or advance, the discharge of the mortgage so paid oft" 
 shall be registered within six months from the date thereof, 
 unless the mortgagor shall, in writing, have authorized the 
 retention of the said discharge for a longer period. Such reg- 
 istration shall not affect the right (if any) of any mortgagee 
 or purchaser who may have paid oft" such mortgage to be sub- 
 rogated to the rights of the mortgagee whose mortgage debt 
 has been so paid. 56 V. c. 21, s. 76 (2). 
 
 Registration 
 of discharge 
 given by 
 person other 
 than the 
 mortgagee. 
 
 Discharge of 
 mortgage by 
 person other 
 than the 
 mortgagee. 
 
 Registering 
 probate or let- 
 
 18. — (1) Where the person entitled to receive the mortgage 
 money and to discharge any registered mortgage is not the moit- 
 gagee, he shall at his own expense cause to bo registered prior 
 to the registration of the certificate of discharge the instru- 
 ments or documents through which he claims interest in and 
 title to the mortgage moneys, and until such instruments Oi 
 documents are registered the Registrar shall not register such 
 certificate or discharge ; and such certificate shall be to ths 
 effect of schedule L hereto, and shall mention the date of regis- 
 tration and inimber of each of the instrumeiits or documents 
 through whicii the person executing the certificate claims 
 interest in and title to the mortgage moneys, and the names of 
 the parties. This section shall apply to powers of attorney 
 where the certificate of discharge or prior instrument or docu- 
 ment is executed by attorney. 58 V. c. 22, s 4; 62 V. c. 16, s. 7. 
 
 (2) Whore any probate of will or letters of administration, 
 with the will annexed, is required to be registered under the 
 
Sec. 79 (3). 
 
 UEOISTRATION OK IJKEDS. 
 
 Chap. 136. 
 
 I'iO 
 
 ,king tho 
 
 preceding sub-section, and the will is over seven folios in length, tern of admin- 
 including probate or letters, and the will does not affect 
 lands in the Registry Division, except in so far as the testator 
 was a mortgagee or assignee of a mortgage, it shall not l)e 
 necessary to register the will at full length ; but For tiie pur- 
 poses of the said subsection it shall be sufficient to register 
 so much of the probate or letters of administration, with 
 the will annexed, as to .show the grant of probate or such 
 letters and the appoiutment of executors or administrators, 
 as the case niay be, and by the deposit in the liegistry Office 
 of a copy of so much of the probate or letters as sliow the 
 grant thereof and the appointment ol executors or adminis- 
 trators, wiih an affidavit verifying such copy, and an affidavit 
 by the executor or administrator, or by one of them, if there 
 is more than one, or by his or their solicitor, to the effect that 
 there is nothing in the will limiting the right of the executor 
 or the administrator to receive the mortgage money and dis- 
 charge the mortgage, and that the will does not affect lands in 
 the registry division in which the probate or letters is to be 
 registered, except in so far as the testator was the holder of a 
 mortgage or mortgages comprising land in such Registry Divi- 
 .sion. 59 V. c. 29, s. 4. 
 
 79. — (1) In the event of the person whose duty it is under Application 
 the preceding section to register such instruments or documents '"{g"*^^* '""^ 
 refusing or neglecting to register the same within fifteen days register 
 after payment of the mortgage moneys to him, then, and in '"^.iTo^^w* 
 every such case, the person entitled to I'edeem the mortgage .Hecharge to be 
 may on giving ten days' notice thereof in writing to the per- K'ven. 
 son so neglecting or refusing, apply in a summory manner to 
 any Judge of the High Court or to any Local Judge thereof 
 in the county wherein the lands or any part thereof men- 
 tioned in the mortgage are situate for an order di.-ecting that 
 the person so refusing or neglecting shall within a time to hi 
 fixed by the Judge, register such instruments or documents at 
 his own expense, and the Judge upon being satisfied that the 
 application is a proper one shall make the necessary order 
 hereunder, either upon affidavits or viva voce evidence as he 
 shall deem fit, and on being satisfied of the due service of the 
 notice aforesaid may proceed to determine the matter in the 
 absence of the per.son so negle"ting or refusing as aforesaid, 
 and in the event of such person disobeying such order, the 
 Judge .shall have the same power to punish for contempt as in 
 any case of disobedience to an order of the Court directing 
 any act to be performed by the person named therein. 
 
 (2) The Judge shall also have power to award co.sts of the 
 proceedings to obtain the order and incidental thereto, and to 
 the enforcement thereof, which costs shall be on the High 
 Court scale and shall be enforceable by execution issued on 
 the certificate of one of the taxing masters at Toronto. 
 
 (3) The said notice .shall by its terms purport to be given in 
 pursuance of this section. 5S V. c. 22, .s. 5. 
 
726 
 
 Chap. im. 
 
 REGISTRATION OF DEEDS. 
 
 Sec. 80 (1). 
 
 How mort- 
 gages to mar- 
 ried women 
 dUcharged. 
 
 I 
 
 c 
 
 i 
 
 2 
 
 Discharges 
 of inorti^age 
 by married 
 women before 
 ISthDectm 
 ber, 186S, 
 confirmed. 
 
 32 V. c, 9. 
 
 Subsequent 
 dUcharges. 
 
 Release of 
 part only of 
 lands mort- 
 gaged. , 
 
 Disoharge of 
 mortgage 
 seized under 
 execution. 
 
 80. — (1) It shell not be necessary to the validity of any 
 certificate of discharge of mortgage given by a raamed woman 
 that the husband of such married woman should be a party to 
 or should execute th<! .same ; and it is he''eby declared that 
 any discharge of mortgage heretofore executed by a married 
 woman alone, and duly registered, shall be ,is effectual to dis- 
 charge such mortgage and to re-convey all the estate of such 
 married woman in the mortgaged lands as if the same had 
 been executed by the husband and wife conjointly. 50 V. c. 21 , 
 c. 77 (1). ■ ■ . 
 
 81. — (1) All certificates of discharge of mortgage and the 
 registration tliei'eof, where such certificates were executed by 
 married women or registered previously to the 19th day of 
 December, 18(i8, according to the terms of the Act pa.ssed in 
 the 32nd year of Her Majesty's reign, and chaptered nine, 
 shall be as valid a'.id binding as if done after the said date. 
 56 V. c. 21, s. 78. 
 
 (2) Any such certificate given between the 19th day of 
 December, 1868, and the 29th day of March, 1873, shall be 
 deemed to have been sufficiently executed if it has been exe- 
 cuted jointly by such married woman and her husband ; and 
 execution on and after the 29th day of March, 1873, either 
 jointly by the married woman and her husband, of by the 
 married woman alone shall be deemed sufficient execution; and 
 it shall not be necessary to produce any certificate of such mar- 
 ried woman having been examined before any of the persons 
 authorized by the laws in force between said dates touching 
 her consent thereto in anywise, but nothing in this section 
 contained shall be construed to limit the effect of the preced- 
 ing section. 50 V. c. 21, s. 77 (2). 
 
 8JJ. In case the mortgagee or any assignee of the mortgagee 
 desires to release or discharge part only of the lands contained 
 in the mortgage,, or to release or discharge only part of the 
 money specified in the mortgage, he may do so by deed or by 
 a certificate to be made, executed, proven, and registered in 
 the same manner as in cases where the whole lands and mort- 
 gage are wholly released and discharg3d ; and such deed or 
 certificate shall contain as precise a description of the portion 
 of lands so released or discharged as would be necessary to be 
 contained in an instrument of conveyance for registration 
 under this Act, and also a precise statement of the amount or 
 • particular sum or sums so released or discharged. 56 V. c. 21, 
 s. 79. 
 
 8J{. — (1) When a Sheriff, Bailifi' of a Division Court or 
 other officer, under a writ or warrant of execution against 
 goods, seizes any mortgage belonging to the person against 
 whose effects the writ or warrant has issued, on or aft'ecting 
 land in the Province of Ontario, the payment with or without 
 suit in whole or in part to the Sheriff, Bailiff", or other officer 
 
80 (1). 
 
 Sec. 85. 
 
 REOISTKATIOX OF DEKDS. 
 
 Chap. 136. 
 
 727 
 
 by the mortgagor or any other person of the mortgage money 
 thereby secured .shall discharge the mortgage to the extent of 
 such payment. 
 
 (2) After payment of the mortgage or any part thereof, the Fomi of cer- 
 Sheriff, Bailitt", or otl^pr officer shall, at the request and expense *lj''^'® °^ ^'^' 
 of the person requiring the same, give a certificate in the form 
 
 or to the effect of Schedule M to this Act, under the hand and 
 seal of office of the Sheriff or other officer, or under the hand 
 of the Bailiff, and the .seal of the Court of which he is Bailiff. 
 
 (3) Upon the written request of the Bailitf the Clerk of the Seal of Divi- 
 Court shall affix to the certificate the seal of the Court ; and *'"" °""^ ' 
 he shall Hie the request of the Bailitf in his office. 
 
 (4) The execution of the certificate shall be proved b}' the Frooi of exe- 
 saine oath or affirmation, and in the same manner as is pro- certificate. 
 vided by law for the pi'oof for registration of other instru- 
 ments affecting lands, and the certificate shall be registered in 
 
 the same manner as other certificates of discharge of mort- 
 gages are registered. 
 
 (5) Every certificate so registered, if the .same is of payment Effect of cer- 
 in full of the mortgage, shall be as valid and effectual in law ''*'<'*'*• 
 
 as a release of the mortgage and as a conveyance to the mort- 
 gagor, his heirs, executors, administratiors or assigns, or any 
 person lawfully claiming by, through or under him or them, 
 of the original estate of the mortgagor as if executed by the 
 execution debtor. 
 
 (6) Every certificate so registered, if the same is of payment Effect of c«r 
 of only a portion of the mortgage, shall be as valid and effect- tificate of part 
 ual in law as a release of the mortgage as to such portion, as 
 
 if executed by the execution debtor. 
 
 (7) The provisions of this section shall extend and apply to Retrosijeotive 
 all cases in v.'hich the seizure or payment was before, or since oiieration. 
 the 21st day of December, 1874,. 50 V. c..21, s. 80. 
 
 m 
 
 c.,21, 
 
 84. It shall not be necessary that the residence or occupa- Residence, 
 tion of the attesting witness to any certificate of discharge of ^'c., of wit- 
 mortgage be stated in the attestation clau.se thereof ; nor shall charge of 
 any such certificate, registered before the 29th day of March, mortgage need 
 1S73. be invalid or inoperative by reason of the omission to ",°atte^ing° 
 state in the attestation clause the residence or occupation of clause, 
 such attesting witne.ss. 56 V. c. 21, s. 81. 
 
 85. Instruments of the nature mentioned in section 43 of Discharge of 
 this Act, registered before as well as after the pa.ssing heieof, instrument 
 may be discharged, and the lands affected thereby released tion to pur- 
 therefrom by filing in the Registry Office a certificate of dis- chase of goods 
 charge in the form contained in Schedule N to this Act, or to 
 
 the like effect. 56 V. c. 21, s. 82. * 
 
728 
 
 Chap. 186. 
 
 UEGISTUATION OF DEEDS. 
 
 Sec. 86(1). 
 
 "i^ 
 
 i 
 
 c 
 
 Kei;idtration 
 of by-laws 
 passed Rince 
 2!»th Marijh, 
 1873. 
 
 Bi/-Laiv8, etc. 
 
 HO. — (1) Every by-law pas.sed since the 29th clay of 
 Marcli, 1873, or hereafter to be pas.sed by any municipal 
 council under the authority of whicli any street, road, or high- 
 way has been or is opened upon ",ny pilvate property, shall 
 before the same becomes effectual in law, be duly registered in 
 the Registry Office of tiie Registry Division in which the land 
 is situate ; and for the purpose of registration a duplicate 
 original or copy of the by-law .shall be made out, certified 
 under the hand of the Clerk and the .seal of the municipality, 
 and shall be registered without any further proof. 
 
 As to by-law.s (2) Every by-law passed before the said day, and every 
 «*c-. "^lat'iK order and resolution of the Quarter and General Sessions 
 before 29th'*' passed before the said day under the authority of which any 
 March, 1873. street, road, or highway, has been opened upon any private 
 property, may at the election of any party interested and at 
 the co.st and charges of such party or municipality, be also 
 duly registered, upon the production to the Registrar of a duly 
 certified copy of the by-law under the hand of the Clerk of 
 the municipality and the seal of the municipality, or by a duly 
 certified copy of the order or resolution of the Quarter or Gen- 
 eral Sessions, given under the hand and seal of the Clerk of 
 the Peace, as the case may be. 
 
 (3) All by-laws, proclamations, Orders-in-Council and other 
 instruments of a public, or quasi public nature whereby a vil- 
 lage, town or city becomes incorporated, or the boundaries of 
 anj' municipality are enlarged, diminished or in any way 
 altered, shall be registered in the proper registry office by the 
 municipality passing or procuring the same, and a copy of a 
 by-law certified by the seal of the corporation and the signa- 
 ture of the chief officer and the Clerk thereof, and a copy of a 
 proclamation, Order-in-Council or other instrument certified 
 by the chief officer of the department from which the same is 
 issued shall be sufficient proof for registration under this 
 section. 56 V. c. 21, s. 83 ; 62 V. c. 10. s. 8. 
 
 REGISTRATION AND ITS EFFECT. 
 
 By-laws, etc. 
 affecting 
 changes in 
 municipal 
 boundarieH. 
 
 Unrei,'i8tered 
 inBtrumentx 
 after itrant 
 from the 
 Crown to be 
 void against 
 Kubseqiient 
 registered 
 purchaser or 
 mortgagee. 
 
 Instrnments 
 giving author- 
 
 81. After any grant from the Crown of lands in Ontario, 
 and letters patent issued therefor, every instrument affecting 
 the lands or any part thereof comprised in the grant shall be 
 ail judged fraudulent and void against any subsequent pur- 
 chaser or mortgagee for valuable consideration without actual 
 notice, unless such instrument is registered, in the manner 
 herein directed, before the registering of the instrument under 
 which the subsequent purchaser or mortgagee claims. 56 V, 
 c. 21, s. 84. 
 
 88. Every instrument within the meaning of section 2 of 
 this Act, which in its nature is, or purports to be, a power of 
 
Sec. 93. 
 
 ItK(;iSTIUTION OF DEEDS. 
 
 Chap. 13(). 
 
 729 
 
 attorney or authority from one person to another to sell lands, ity tom-ll iind 
 ami in which instrument the commission, p lymont for .services, Hri""ion,^ujt 
 or other remuneration of the attorney or aj^ent therein named, to bind laud 
 is made a charge on tlie land, shall not, as against a subai'(|uent from dUte.''*^^' 
 purchaser, or the creditors of the person giving the power or 
 authority, have ertect to charge the lands with such conunis- 
 sion, payment for services, or remuneration, after the lapse of 
 one year from the making of the instrument. 50 V. c. 21, s. 85. 
 
 H9 All wills or the probates thereof registered within the Wills to be 
 space of twelve months next after the death of the testator ^"u'lJ-f' f' i 
 shall be as valid and ett'ectual against subsequent pur- months from 
 chasers and inortjia'rees, as if the same had been rejiistered ^i?^*'"' '^*'*" 
 immediately after such death ; and in case the devisee, or per- " , 
 son interested in the lands devised in any such will, is disabled 
 from registering the .same within the said time by reason of 
 the contesting of such will or by any other inevitable difficulty 
 without his or her wilful neglect or default, then, the registra- 
 tion of the same within the .space of twelve months next after • 
 his attainment of such will or probate thereof, or the removal 
 of the impediment aforesaid, .shall be a .sufficient registration 
 within the meaning of this Act. 56 V. c. 21, s. 86. 
 
 tMK Every deed made by a treasurer or other officer for Resristry of 
 arrears of taxes shall be registered within eighteen months fo^r^'taxe" and" 
 after the sale by such treasurer or other officer ; and all deeds sales under 
 of lands sold under process issued from any Court in Ontario, court? ° 
 shall be legistered within six months after the sale of the 
 lands ; otherwise the parties respectively claiming under any 
 of .such !-ales, shall not be deemed to have preserved their 
 l)riority as against a purchaser in good faith who has regis- 
 tered his deed prior to the registration of the deed from the 
 trea.surer or other officer. 56 V. c. 21, s. 87. See also Cap. 
 '3Sl sec. fW4. 
 
 JM. Where deeds for lands sold for taxes, or under process Sales for taxes 
 of law, before the 4th day of March, 1868, have not been eessteforeTth 
 one year after the said day, the parties March, ISKS. 
 
 remstered within 
 
 respectively claiming under any such sales shall not be deemed 
 to have preserved their priority as against a purchaser in good 
 faith who has acquired priority of registration. 56 V. c. 21,s.88. 
 
 WZ. The registration of any instrument, under this Act, or Registry to be 
 any former Act, shall constitute notice of the instrument, to n<«'ee- 
 all persons claiming any interest in the lands, subsequent to 
 such registration, notwithstanding any defect in tlie proof for 
 registration, but nevertheless it shall continue to be the duty 
 of every Registrar not to register any instrument, except on 
 such proof as is recjuired by this Act. 56 V. c. 21, s. 89. 
 
 *}ll. So far as by the la.st preceding section it is provided Retrospective 
 that notwithstanding any defect in the proof for registration UH^^ectbn. 
 
730 
 
 Cliai). 136. 
 
 REOISTHATION OF DEEDS. 
 
 Sec. 93. 
 
 Entries in 
 index and 
 
 corrections. 
 
 I 
 
 c 
 
 I 
 
 C 
 
 JO 
 
 3 
 
 Penalty for 
 unauthori7.e<l 
 alteration of 
 entries. 
 
 the rej^jistration of an instrument .shall constitute notice there- 
 of, the .said section .shall only apply retrospectively from the 
 29th day of March, 1878, as to matters and facts within the 
 meaning of .section 45 of this Act. 56 V'. c. 21, s. 90. 
 
 1M. — (I) After an in.strument has been entered in the 
 abstract and alphabetical botjks, and has been copied in the 
 re<ji.stry book, no entry shall be made in the abstract index or 
 in the alphabetical index respecting such instrument, excepr 
 in the niiinner hereinafter provided ; nor, except in such man- 
 ner, shall any alteration or correction be made in any entry 
 previously made respecting any instrument, or in any copy of 
 any instrument in any registry book. 
 
 (2) The Regi.strar or his deputy shall as promptly as possible 
 after becoming aware of any omission or error in copying, 
 cause to be made in red ink the entries, alterations or correc- 
 tions which are recjuisite ; and a memorandum stating the date 
 of every such entry, alteration or correction shall be made in red 
 ink in the margin of the index or registry book opposite or near 
 thereto ; and such memorandum shall be signed by the Regis- 
 trar or his deputy. 56 V. c. 21, s. 91. 
 
 J^.'i. Any person (except the Registrar or other officer when 
 such registrar or officer is entitled by law so to do), who alters 
 any of the books, records, plans or registered instruments in any 
 Registry Office, or makes any memorandum, words or figures in 
 writing thereon, and whether in pencil or in ink, or by any other 
 means, or in any way adds to or takes from the contents of 
 such book, record, plan or registered instrument, shall, on sum- 
 mary convictioi- thereof, before a Justice of the Peace, forfeit 
 and pay a penalty of not less than $5, and not mora than $100 
 besides the costs, and in default of payment thereof, he shall 
 be imprisoned in the common gaol of the county in whicli the 
 offence was committed for a period of not less than three 
 months, and with or without hard labour in the discretion of 
 the convicting justice. 50 V. c. 21, s. 92. 
 
 1M». Every instrument capable of registration and having the 
 proper affidavit of execution attached thereto, shall be deemed 
 to be registered when and so soon as the same is delivered 
 either personally or by letter to and received at his office dur- 
 ing office hours by the Registrar or some officer or clerk in his 
 office on his behalf, and a tender or payment made of the pro- 
 per fees therefor, and thereafter no alteration shall be made by 
 any person whatever in such instrument, and any person alter- 
 ing the same shall be deemed to be guilty of the violation pro- 
 vided for by the preceding section, and may be punished in 
 the manner therein provided. 56 V. c. 21, s. 93. 
 
 Actual notice 9'3'_ Priority of registration shall prevail unless before the 
 prior registration there has been actual notice of the prior 
 instrument by the party claiming under the prior registration. 
 56 V. c. 21, s. 94. 
 
 When inHtrii- 
 ments to be 
 deemed regis- 
 tered. 
 
93. 
 
 Sec. 100 (1). 
 
 . RiSOISTRATION OF DEEDS. 
 
 Chap. 136. 
 
 731 
 
 98. No equitable lien, charge, or interest affecting land shall Astoequi- 
 be deemed valif' in nny Court in this Province, as against a '" «''«"*• 
 registered instrument executed by the same party, his heirs or 
 assigns ; and tacking shall not be allowed in any case to prevail Tacking, 
 against the provisions of this Act. 56 V. c. 21, s. 95. 
 
 how affected 
 by Bub8U(iuent 
 reKistered con- 
 veyances, 
 where mort- 
 KARe moneys 
 paid aub- 
 sequently. 
 
 9t>. — (1) Every mortgage duly registered against the lands 
 comprised therein is, and shall be deemed as against the mort- 
 gagor, his heirs, executors, administrators, assigns and every 
 other person claiming by, through or under him, to be a security 
 xipon such lands to the extent of the money or money's worth 
 actually ad^'anced or supplied to the mortgagor under the said 
 mortgage (not exceeding the amount for which such mortgage 
 is expressed to be a security), notwithstanding that the said 
 moneys or money's worth, or some part thereof, were advanced 
 or supplied after the registration of any conveyjince, mortgage, 
 or other instrument ati'ecting the said njortgaged lands, executed 
 by the mo'^'gagor or his heirs, executors or administrators, and 
 registered subsequently to such first-mentioned mortgage, un- 
 less before advancing or supplying such moneys or money's 
 worth the mortgagee in such first-mentioned mortgage had 
 actual notice of the execution and registration of such con- 
 veyance, mortgage or other instrument ; and the registration 
 of such conveyance, mortgage or other instrument after the 
 registration of such first-mentioned mortgage, shall not con- 
 .stitute actual notice to such mortgagee of -such conveyance, 
 mortgage or other instrument. 57 V. c. 34, s. 1. 
 
 (2) This section shall not apply to any action pending on Pending 
 the 5th day of May, 1894i, and shall not affect any question of actions, eto. 
 priority in respect of advances made by a mortgagee before 
 the said date. 57 V. c. 34, s. 2. 
 
 MISCELLANEOUS PROVISIONS. 
 
 Plans. 
 
 100. — (1) Where any land is surveyed and subdivided Registration 
 for the purpose of being sold or conveyed in lots, by reference of plans when 
 to a plan which has not been already registered, the person divided, 
 making the subdivision shall, within three months from the 
 date of the survey, file with the Registrar a plan of the land 
 on n scale not less than 1 inch to every 4 chains. The 
 plan shall shew the number of the township, town or village 
 lots and range or concession as originally laid out, and all the 
 boundary lines thereof, within the limits of the land, being ' 
 subdivided except where such plan is a subdivision of a lot or 
 lots on a former plan, in which' case it shall show the num- 
 bers or other distinguishing marks of the lot or lots .subdivided 
 and the boundary lines of such lot or lots. The number or 
 other distinguishing mark and the breadth, both front and 
 rear, shall be marked on each lot of the subdivision, the scale 
 ahall also be marked on the plan, and such information as 
 
732 
 
 Chap. 136. 
 
 REGISTRATION' OF DEEDS. 
 
 Sec. 100(1). 
 
 c 
 
 r 
 
 X 
 C/: 
 
 r 
 
 7» 
 
 2 
 
 Plans to be 
 mounted. 
 
 Duty of Regis- 
 trars there- 
 after. 
 
 Instruments 
 must conform 
 to such plan. 
 
 Exceptions. 
 
 Provision as 
 to streets. 
 
 Power of 
 municipalities 
 not inter- 
 fered with. ^ 
 
 Penalty for 
 refusing to 
 register plan. 
 
 will show the depth of the lots, and the courses of all the 
 Itniindnries of, or the division lines between the same and the 
 governinji lino or lines to which said courses are referred 
 shall also ho indicated : the position of all the posts or monu- 
 ments, if any, planted by the surveyor, or of other objects 
 marking the boundaries of any of the sai<l lots or the corners 
 thereof shall also be shown. The jtlun shall al.so .sJiow all 
 roads, streets, railway lands, rivei-s, canals, streams, lakes, mill- 
 ponds, marshes or other marked topofrraphical features within 
 the limits of the lands ljein<ij so subdividtsd, together with such 
 other information as is re(|uired to show distinctly the posi- 
 tion of the said lands. R.S.0. 1887, c. 152, .s. U3,(l) ; 56 V. c. 21, 
 8.96,(1); 62 V. c. 16,.s. 9. 
 
 (2) Every such plan shall Le mounted on stiff" pasteboard 
 of good (juality, and in case it exceeds thirty inches in length 
 by twenty-four inches in width shall be folded so as not to 
 exceed that .size. 56 V. c. 21, s. 96 (2.) 
 
 (8) Every such map or plan, before Ijeing registered, shall be 
 signed by the person or the chief officer of the corporation by 
 whom or on whose behalf the same is ffled.and shall also be certi- 
 fied by some Ontario Land Surveyor in the form of Schedule O 
 to this Act ; and thenceforth the Registrar shall keep an index 
 of the lauds described and designated by any number or letter 
 on the map or plan, by the name by which such person, cor- 
 poiation or company designates the same in the manner pro- 
 vided by this Act ; and all instruments affecting the land or 
 any part thereof, executed after the plan is ffled with the Re- 
 gistrar shall conform and refer thereto, otherwise they shall not 
 be registered, except in cases provided for in section 108, 
 and except also where a mortgage has been registered prior to 
 the filing of such plan of subdivision in which case any dis- 
 charge, final order of foreclosure or conveyance under the power 
 contained in the said mortgage or assignment of mortgage 
 shall be registered against the lands as described in the mort- 
 gage. R. S. 0. 1887, c. 152, s. 63 (2) ; 56 V. c. 21, s. 96 (3) : 58 V. 
 c. 22, s. 6; 62 V.c. 16,8. 10. 
 
 (4) No part of any street oi- streets shall be altered or 
 closed up, upon which any lot of land sold abuts, or which 
 connects any such sold lot with or affords means of access 
 therefrom to the nearest public highway, but nothing herein 
 shall in any way interfere with the powers now possessed by 
 municipalities in refereuce to highway.s. R. S.0. 1887, c. 152, 
 ,s. 65 (2, 3). 
 
 101. In thecase of refusal byguch person, corporation orcom- 
 pany, his or their executors, administrators, agents or attorneys 
 or successors, for two months after demand in writing for that 
 purpose, to lodge with the Registrar any map or plan which it 
 is his or their dut}^ to file under the next preceding section or 
 to deposit under section 112 when required by any person inter- 
 ested therein or by the Inspector ,so to do, he or they shall incur 
 
Sec. 105. 
 
 RE(;iSTl{ATION OF DEKDS. 
 
 Chap. 136. 
 
 7;i3 
 
 a penalty of S*20 for each and every calendar month that there- 
 after elapses without the .said map or plan beiii<.( lodj^ed with 
 sucli Rcjfistrar which penalty may he recovered by any person 
 coin|)iaining, in any Divi.sion Court in the county in which 
 such lands are situated, in like manner as a common debt. 
 R. S. (). 1«S7, e. 152, s. 6.3 (.'}), s. GO part ; .56 V. c. 21, s DO (4). 
 6(1 V. c. ;}, s. ;], c. 15, Sch«^l. A (59). 
 
 IO?<J. — (I) The sign.'iture on a map or plan for the purposes Verification of 
 of subsection .'} of .section 100 shall be witnessed and veri- piant!""^* *" 
 fied as other instruments are under this Act. 
 
 (2) The Registrar shall not accept any map or plan for the Condition* ii.s 
 purposes of this Act which does not comply with the pro- „? plans ™*'"° 
 visions of this Act ; and shall not accept any plan on which a 
 road less than sixty-six feet wide is laid out, imle.ss the as.sent 
 of the ])roper municipal council is I'egistered therewith, where 
 such assent is by law necessary. 
 
 (8) The Registrar shall not receive or file, any plan or map Plans of 
 of a .subdivision of any land for which the Crown ])atent has unpatente<l 
 not issued, unless the assent or the Commi.ssioner ot Crown 
 Lands to such receipt and filing is endorsed thereon. 56 V. 
 c. 21, s. 90 (5-7). 
 
 (4) The Registrar shall not receive or tile any plan or map 
 of a subdivision of any land, unless the person or the cor- 
 poration by whom or on whose behalf the same is filed appears 
 on the registry books to be the owner of the land subdivided 
 by the plan, nor unless the consent in writing of all persons 
 and corporations who appear by the said books to be mort- 
 gagees of the land is endorsed on the plan and signed by 
 such person or the cliief officer of such corporation and such 
 signatures are duly verified by affidavit. 59 V. c. 29, s. 3. 
 
 RefOBtrar not 
 t J file planH 
 for anyone 
 but owner 
 nor without 
 consent of 
 inorte:aKeeR. 
 
 and Duty of the 
 Registrar on 
 receiving plan. 
 
 (5) Whenever any such plan or map has been so nmdi 
 deposited as aforefiaid the Registrar shall make a I'ecord of the f^^*^""*' •?•> 
 same, and enter the day and year on which the .same is de- 
 posited in his oftice. R. S. O. 1.S.S7, c. 152, s. 67. 
 
 I0J5. Sections 100 to 102 of this Act .shall apply as well Application of 
 to lands already surveyed or subdivided as to those which **• ^^ '" ^^■ 
 may hereafter be surveyed or subdivided, subject to the pro- 
 visions of section 109 of this Act. R. S. 6. 1887, c. 152, 
 s. 63 (4) ; 56 V. c. 21, s. 97. 
 
 104. Every copy of such plan or map obtained from a Copies of 
 registry office, and certified as correct by the Registrar org^*"^*^'" 
 ]3eputy Registrar shall be taken in all Courts as evidence of 
 
 the original thereof and of the survey of which it purports to 
 be a plan or map. R. S. O. 1887, c 152, s. 06. 
 
 105. The Inspector, wlu-re lie deems it necessary, shall Plan index 
 have power to direct that a plan index book shall be kept ''""''• 
 
 ■*>: 
 
 "4i 
 
734 
 
 Chap. 130. 
 
 REOISTRATION OK DEEDS. 
 
 Sec. 106. 
 
 Abfitraot in- 
 dex t(> Hiib- 
 divinions of 
 tciwnshipg, 
 etc. 
 
 I 
 
 c 
 
 I 
 
 5 
 
 '"^^nfll^ 
 
 !U'; 
 
 by the Registrar 
 ItiHpector. 50 V. c. 
 
 in manner 
 21, H. 98. 
 
 and form directed by the 
 
 lOtt. — (1) Whenever from time to time the Inspector of 
 Registry Offices deems that the public convenience so requires, 
 he may direct a Registrar to subdivide any township, park or 
 other lots in a city, town or village into such blocks for abstract 
 purposes as having regard to conveyances registered upon 
 such lots and otherwise, he considers most convenient ; and in 
 such case an abstract index shall be prepared by the Registrar 
 for each of the said blocks as if the same had been originally 
 a separate lot; sucli abstract index shall extend from the- 
 Crgwn Pati'nt onwards, or from or to such other date as the 
 inspector may direct, and shall contain those registrations 
 only that affect the subdivision to which the index relates. 
 56 V. c. 21,8.99(1); 62 V.c.16,8.11. 
 
 (2) Where the original lines of the lots do not form the 
 boundaries of such blocks, public streets shall be taken as the 
 boundaries thereof, or otherwise as the Inspector of Registry 
 Offices .shall approve of and direct. 56 V. c. 21, s. 99 (2) ; 
 59 V. c. 29, s. 16. 
 
 (3) Where a plan of a lot or part of a lot subdividing the 
 same has heretofore been registered, or where a plan is here- 
 after registered of a lot or part of a lot not previously sub- 
 divided by a registered plan, the Inspector may direct the 
 Registrar to prepare an abstract of all instruments affecting 
 the part subdivided, and to enter the same in the page or 
 pages of the abstract index book immediately preceding the 
 abstract as to the first lot on such plan. 
 
 (4) Whenever and as often as a further subdivision of any 
 of the lots on said plan is made, the Inspector may direct the 
 Registrar to prepare and enter in like manner an abstract of 
 all instruments affecting the part so subdivided from the filing 
 of the previous plan onwards. ♦ 
 
 (5) The Registrar shall be allowed for preparing such 
 abstracts, so far as the same relate to instruments registered 
 prior to the Inspector's directing the subdivision, such amount 
 as the Inspector may determine to be reasonable for the work 
 performed, and the same shall be paid by the owner who 
 registers the plan or by the county or city as the Inspector 
 may direct. 
 
 (6) For abstracts prepared for the purposes of plans here- 
 after registered, the Registrar shall be entitled to receive from 
 the persons registering such plans, the usual fees for preparing 
 such abstracts ; such fees to be paid in addition to the fees 
 for registering such plans. 56 V. c. 21, s. 99 (3-6). 
 
 101. No instrument referring to an unregistered plan shall 
 be registered unle.ss where an instrument referrinsr to such 
 
 Registration 
 
 of inntru- 
 
 ments refer- , v i i i • i • i- n - i i 
 
 ring to on un- plan has been already registered in respect oi the same land ; 
 
Sec. 110. 
 
 RE(}|STI<ATION OP DEEDS. 
 
 Chap. 136. 
 
 735 
 
 and io ciwe the Registrar objects to register any instrument on regiucmi 
 account of its referring to an unregistered plan, he shall be'""' 
 justified in doing so until and unle.ss the person desiring regis- 
 tration of the instrument refers the Registrar to the number of 
 an instrument previously registered in respect of the srime 
 land referring to the said unregistered plan. 56 V. c. 21, s. 100. 
 
 108. — (1) Where an instrument which does not conform when inHtru- 
 and refer to the proper plan, as required by section 100, has mentH not con- 
 been duly executed and any party thereto has died prior to the p^openXu 
 registration thereof, or in any case where it would, in the may be 
 opinion of the Registrar, be impossible or inconvenient to obtain feB"*"«"- 
 a new instrument containing the proper description, such in- 
 strument may be registered if accompanied by an aftidavit 
 annexed thereto or endorsed thereon in accordance with the 
 form given in Schedule P. 
 
 (2) The Registrar shall thereupon enter such instrument t 
 imder the lots designated in the aftidavit in the abstract index 
 m which the subdivision is entered, and no entry shall be 
 made under the lot or lots prior to the subdivision, 57 V. 
 c. 35, s. 3, part. 
 
 IOJ>. In sales of lands under surveys or subdivisions made When plan 
 before the 4th day of March, 1868, where such surveys or inu^* l"* '^K's- 
 
 • *^ LtTOQ in CA86 
 
 subdivisions so differ from the manner in which such land of lands sub- 
 was surveyed or granted by the Crown that the pai'cel so sold jj^'^'i?'* before 
 cannot be easily identified, the plan or survey shall he regis- \s&s. ' 
 tered within six months after the passing of this Act if the 
 plan or survey is still in existence and procurable for 
 registration and filing under section 100, and if it is 
 not, a new survey or plan .shall be made by and at the 
 joint expense of the persons who have made such surveys or 
 subdivisions, and of all othei's interested therein, by some duly 
 authorized Ontario Land Surveyor, or as nearly as may be 
 according to the proper original survey or subdivision, and 
 the fa.me when so made shall be filed as if under section 
 100 of this Act. R S.0. 1887,c. 152. s. 64; 56 V. c. 21, s. 101. 
 
 110. In no case shall any plan or survey, although filed and pian not bind 
 registered, be binding on the person so filing or registering the •"? "."*•' «^"« 
 same, or upon any other person, unless a sale has been made under it; 
 according to such plan or survey, and in all cases amendments alterations in 
 or alterations of any such plan or survey may be ordered to be ^ 
 made, at the instance of the person filing or registering the 
 same or his assigns, by the High Court, or by a Judge of the 
 said Court, or by the Judge of the County Court of the county 
 in which the lands lie, if on application for the purpose duly 
 made, and upon hearing all parties concerned, it be thought fit 
 and just so to order, and upon such terms and conditions as to 
 Costs and otherwise as may be deemed expedient. An appeal Appeal, 
 shall lie from any such order to the Court of Appeal. R. S. 0. 
 1887, c. 152, 8. 65 (1) ; 56 V. c. 21, s. 102. 
 
c 
 
 5 
 
 s 
 
 30 
 
 5 
 
 736 
 
 Plans of 
 towns or 
 villages to be 
 registered in 
 certain cases. 
 
 Chap. 136. 
 
 REGISTHATION OK DEKDS. 
 
 Soc. Ill (1). 
 
 Registration 
 of plan of un- 
 incorporated 
 village situate 
 in more than 
 one township. 
 
 Expenses of 
 regiHtering 
 plan of such 
 unincorpor- 
 ated village- 
 how appor- 
 tioned. 
 
 1 1 1. — (1) Where an incorporated city, town or village, or 
 villa^fe not incorporated, comprises different parcels of land 
 owned at the original division thereof by different person.s, and 
 the same were not jointly surveyed and one entire plan of such 
 survey made and filed in accordance with section 100 of this 
 -Act, the municipal council of the township within which .such 
 unincorporated village is situated, or of such incorporated city, 
 town or village, shall, upon the written request of the Inspector 
 or of any person interested, addressed to the clerk of the 
 municipality, immediately cause a plan of such city, town or 
 village to be made upon the scale provided for under this Act, 
 and to be registei'ed in the Registry Office of the Registry 
 Division within which the municipality lies, which map or plan 
 shall have endorsed thereon the certificates of the clerk and 
 head of the mimic' pality and the surveyor, that the same is 
 [)repared according to the directions of the municipality and 
 in accordance with this Act, and the corporate .seal of the 
 municipality shall be attached to the map or plan. 
 
 (a) Where the unincorporated village as aforesaid is situ- 
 ated in two or more townships, the inspector may, 
 by a written order, cause a plan of such villaoe to 
 be made upon the scale aforesaid, and to be regis- 
 tered in the pro|)er registry office, and where the 
 unincorporated village is situate in two or more 
 registry divisions: a duplicate of such map or plan 
 shall be registered in each of such registry divisions 
 in so far as it affects lands in such division ; the 
 map or plan shall have endorsed thereon the cer- 
 tificate of the surveyor that Jiosame has been pre- 
 pared according to the order of the inspector, and 
 such order or a copy thereof shall be attached to or 
 endorsed on such plan ; and any plan of an unin- 
 corporated village situate in two or more townships 
 heretofore prepared upon the request of the inspec- 
 tor, may, in like manner, be registered in the pro- 
 per registry office, and shall, when so registered, 
 be as valid as if the same had been prepared upon 
 the order of the inspector. 
 
 (6) The expense attending the preparing and depositing 
 of any map or plan in the next preceding clause (a) 
 mentioned, shall be paid out of the general funds 
 of the municipalities in which the unincorporated 
 village is .situated, in such proportions as the in- 
 spector may order, and any nmnicipality may 
 levy its proportion of such ex|ien.se, or so nmch 
 thereof as the council of the municipality sees fit, 
 by assessment on all rateable property conqirised in 
 the proportion of the unincorporateil village situ- 
 ate in such municipality as described by metes and 
 bounds in a by-law to be passed by the municipality 
 for the purpose of levying such rate. 62 V. c. 16, 
 s. 12. 
 
Sec. Ill (5). UEaisTRATroN of deeds. 
 
 Cluip. 13G. 
 
 737 
 
 Registration 
 o( plans of 
 township 
 imbdivisions 
 iu certain 
 caties. 
 
 (2) The expense attending the preparinij and depositing of Payment of 
 the map or plan shall be paid out of the general funds of the ^"P*"""**- 
 municipality, except in the case of unincorporated villages, 
 
 where the same may be paid in whole or in part by the muni- 
 cipality out of its general funds, or the same may, in whole or 
 in part at the option of the municipality, be paid by a special 
 rate to be levied by assessment on all ratable property com- 
 prised in the unincorporated village, as described by metes 
 and bounds in a by-law to be passed by the municipality for 
 the purpose of levying such rate ; and in case of the refusal 
 of the municipality to comply with all the requirements of 
 this section within six months next after being reciuired in 
 manner aforesaid so to do, the municipality shall incur the 
 same penalty, and the same shall be recoverable in the manner 
 provided in section 101 of this Act. R.S.O.(1897)c 136,s.lll(2); 
 G2 V. c. l(),s. 13. 
 
 (3) Where land in a township has been or shall hereafter be 
 sold under surveys or subdivisions made in a manner which so 
 difiers from that in which such land was surveyed or granted 
 by the Crown that the parcel sold cannot be easily identified, 
 and the map or plan has not been registered under this or any 
 other Act in that behalf, the council of the township may at 
 the written request of the Inspector, or of any person inter- 
 ested, cause a i)lan of any such hind to be made and registered 
 in the same manner and with the same effect as in the case of 
 an unincorporated village ; and the expenses attending the 
 preparation of and filing of the map or plan shall be paid by 
 a special rate to be levied by assessment on the lands com- 
 prised in said map or plan, as described in a by-law to be 
 passed by the council for the purpose of levying such ratt ; 
 and the municipality shall have the like remedies for the 
 recovering of such last mentioned expenses as it has for com- 
 pelling ])ayment of taxes. 
 
 3 (a) Any plan prepared under the provision of si sections 
 1 and 3 of this section shall show such subdivisions of original 
 lots as are shown by the registered plans and by the deeds of 
 such lands as are not shown on the registered plans, and the 
 plan so to be made shall be prepared without adding to the 
 costs thereof the expense of any actual survey on the ground 
 except such as may be necessary to connect the subdivisions 
 or parcels of land and to show any natural or artificial boun- 
 daries of the same which cannot be si ^wn on the new plan 
 from the infoiniation contained in the registered plans and 
 deeds. G2 V. c. 16,s. 14. 
 
 (4) Nothing in this section contained shall be deemed or 
 construed to relieve any person from any liability, duty, obli- 
 gation or penalty provided or imposed by oi- under any of the 
 provisions of sections 100, 101 and 102 ot this Act. R. S. 0. 
 1887, c. 152, s. 68 ; 50 V. c. 21, s 103 (1-4). 
 
 (5) Where any land has been sold or conveyed in lots or 
 parcels by metes and bounds, or in any other manner with^.:t 
 
 w. 1 
 
 Plans of muni- 
 cipulities — 
 what to be 
 shown on. 
 
 Obligations 
 not impaired. 
 
 Power of 
 County Jwdge 
 
m 
 
 738 
 
 Chap. 136. 
 
 UKCtSTRATIOV OF DEEDS. 
 
 Sec. Ill (5). 
 
 to ordei new 
 plans to be 
 filed. 
 
 CoBta. 
 
 Effect of 
 registration. 
 
 Delivery of 
 plans to 
 municipal 
 treasurers. 
 
 a map or plan regi-stered under this or any other Act in that 
 behalf shewing .such .subdivisions, or where portions of lots 
 shown by any registered plan or subdivision have been sold, and 
 the lots or parcels so sold are not distinguished by iminbers or 
 letters, the Judge of the county or district in which the land is 
 situate may, on the application of the Inspector, after such 
 notices as the Judge may think reasonable, on being satisfied 
 that it is expedient so to do, make an order directing the 
 Resistrar in whose division such land is situate to have the 
 same, or any part thei'eof, laid out into lots or parcels in such 
 manner and numbered iis he .shall think tit, and a plan or 
 plans lliereof made in accordance with the records in the 
 Registry Office, or from actual survey, as may be found neces- 
 sary, and registered in accordance with the provisions of this 
 Act:., which plan shall liavo the order of the Judge endorseil 
 thereon, signed by him. The costs and expenses of and inci- 
 dental to such application and plan and the registration thereof 
 shall be borne by the person, corporation or municipality to 
 be nameil by the Judge in the order. Such order shall be 
 entitled in the County Court and in the matter of the lands in 
 question, and on filing the order with the Clerk of the County 
 Court the same nuiy be enforced as if it were a judgment of the 
 Court The registration of such plan shall be binding on all 
 parties subsequently deuling with the lands or any part thereof 
 included in the plan or any interest in or concerning the 
 same, but shall not affect in any way the riglits or interests of 
 any owner or other person entitled at or pi-ior to the date of 
 
 registratioti. 
 
 .56 V. c. 21, s. 103 (5); 62 V. c. Ki.s 15. 
 
 11^. Every person who is re(]uired to lodge with the Regis- 
 trar a plan or map of any survey or subdivision of land in any 
 municipality shall at the same time deposit with the .said 
 Registrar a flu{)licate of such plan or map, and the Registrar 
 shall endorse thereon a certificate shewing the number of such 
 plan or map and the <late when the duplicate original thereof 
 was filed with him, and the same shall upon request and 
 without any fee being chargeable in respect thereof, be 
 delivered by the Registrar to the treasurer or ass<jssment com- 
 missioner of the local municipality in which such land is situ- 
 ate The Registrar shall not register any such plan or map 
 unless and until a duplicate thereof is deposited in accordance 
 with the provisions hereof. R. S. 0. 1887, c. 152, s. 69, part ; 
 56 V. c. 21, s. 104. 
 
 Re-re(jistvation xuherc Registrij Books lost, etc. 
 
 „ . ll!t. — (1) In any case where the registry books and 
 
 tion ill case re- papers Were before the 4th day of March, 1868, lost or 
 gistry books or destroyed, and the n\emorials are not forthcoming, upon proof 
 O36*orde- being made to that effect before a Judge of any Court of 
 Httoyed. Record in this ProvincH to the satisfaction of the Judge as 
 
 evidence^l by a certificate under his hand, it sluiU be lawful 
 
Sec. 116. 
 
 UEGISTRATIOX OK DUKDS. 
 
 Chap. VM. 
 
 73d 
 
 for the Registrar for the Registry Division where the hxnds are 
 situate to register the instrument upon production thereof, 
 and no further proof shall be required by the Registrar than 
 the original certificate of registration endorsed on such instru- 
 ment ; and any such instrument shall have priority according 
 to the date of the original cei-tificate. 
 
 (2) The instrument shall be filed away by the Registrar and 
 preserved with the records of his oflice, and in case memorials 
 have not been copied into the registry boolcs in their proper 
 order, the Inspector may cause the same to be entered in proper 
 books to be procuied for the purpose, in the same manner as 
 provided in section 29 of this Act, and the Registrar shall be 
 paid therefor in the same manner as under clause 9 of 
 section 118 of this Act. .50 V. c. 21, s. 105. 
 
 Defects in Registration cured. 
 
 114. No registration of any deed or other instrument made 
 before the 4th day of March, 1808, shall be deemed f)r 
 adjudged void hy reason of the name or names, residence or 
 residences, addition or additions of the witness or witnesses to 
 the deed or instrument being improperly given or described in 
 the registered memorial thereof, or being either in part or 
 altogether omitted from such memorial, or by reason of any 
 clerical error or omission of a formal or technical character 
 therein ; and all registrations before the said day effected in 
 separate registry books of unincorporated villages are hereby 
 confirmed, where the law has been otherwise complied with ; 
 and such separate registry books shall be taken and held to 
 form part of the registry books of the municipality of which 
 the unincorporated village forms a part ; but such books shall 
 not be further used. .50 V. c. 21, s. 106. 
 
 Registration 
 made before 
 4th Marcb, 
 1868, nut to be 
 deemed void 
 for certain 
 defects. 
 
 Registration 
 in books for 
 unincorporat- 
 ed villages. 
 
 lawful 
 
 115 The registration of an instrument had before the pgfygtiygyg. 
 29tVi day of March, 187"J, shall not be deemed void by gistrations 
 rf.ason of any defect in the proof for registration ; but this March '^1873 
 section shall not apply to any matter or fact adjudged or de- not to be 
 cided upon before the said date by any Court of competent '^^'^'"'^'1 "^^^^ 
 jurisdiction in that behalf. 56 V. c. 21, s. 107. 
 
 110. No registration or entry made before the .said last ^ggigj^^jjo^g 
 mentioned date shall be adjudged or held to be void by reason etc , not to be 
 of the Registrar having failed or ouiitted to make or sign the by^^gence'of 
 certificate of entry, discharge or registration required to be certificates, 
 made in the margin of, or elsewhere in, the registry books or "f'^b'ooks'*'^" 
 other books of ontiies ; and in case of such failure or omission, 
 the certificate may be made or signed by any subsequent 
 Registrar, and shall have the same force and efi'ect as if it had 
 been made or signed by the Registrar whose duty it was to 
 have made or signed it. 56 V. c. 21, s. 108. 
 
740 
 
 Chap. 136. 
 
 REGISTRATION OF DEEDS. 
 
 Sec. 117(1). 
 
 •4 
 
 I 
 
 c 
 
 2 
 
 I 
 
 5 
 
 S 
 
 5 
 
 The cane of 
 part of a town- 
 ship made 
 part of a new 
 township 
 without 
 change of re- 
 gistry books. 
 
 Proviso. 
 
 Proviso. 
 
 Fees. 
 
 1 II. — (1) In case a part or parts of any township or towa- 
 .ships as originally laid out, surveyed and named, had before 
 the said last mentioned date been made or erected into a new 
 township, but nevertheless the registrations of instruments 
 affecting or res[iecting land in said first mentioned township or 
 townships, and the registry books and indexes therefor and 
 relating thereto continued to be and were on the said date used, 
 made, kept, entered and registered for and of said first men- 
 tioned township or townships and as if the same had continued 
 to be as so originally laid oiat, surveyed and named, then and 
 in every such case, and for and in respect of all matters and 
 purpo.ses of or relating tf) any such instrument either before or 
 after the said date and any and all such registrations, registry 
 liook.s and indexes, and the description therein of any land or 
 premises, said finst mentioned town,ship or townships shall be 
 deemed, considered and taken as if the same had continued to 
 be and remained as so originally laid out, surveyed and named. 
 
 (2) Nothing in this section contained shall be deemed or 
 taken as relating to or affecting any incorporated town or vil- 
 lage, or the land therein, or the registration of any instrument 
 respecting the same from or after the time of the incorpora- 
 tion of said town or village. 
 
 (3) Nothing in this section contained shall impair or make 
 tleiective any instrument or the registration thereof, because of 
 any land being therein described or mentioned as situate in 
 such new townshi|). .56 V. c. 21, s. 109. 
 
 \^As to list of Crown Grants being furnished to Registrar, 
 see Cap. '28, sec. 39 and as to proceedings where land patented 
 is in territoi'y under The Land Titles Act, see Cap. 138,sec. il!9. 
 
 Fees of Registrars. 
 
 118. Every Registrar shall be allowed the following fees 
 for the following services, and no more : 
 
 For registra- 1. For the necessary entries and certificates in regiateiing 
 tions general, every instrument other than those hereinafter specially pro- 
 vided for, including among such certificates the certificate on 
 the duplicate, if any, forty cents; and for registering every 
 instrument other than those hereinafter specially provided 
 for, $1 ; 
 
 But in case the said instrument exceeds seven hundred 
 words, then at the rate of fifteen cents for each additional one 
 hundred words or the fractional part thereof, up to fourteen 
 hundred words, and at the rate of ten cents for each addi- 
 tional hundred words or fractional part thereof over fourteen 
 hundred ; 
 
 If the instru- And if the saiJ instrument embraces different lots or parcels 
 different'lots** of land, situate in different municipalities in the same county, 
 
Sec. 118(2). KEGISTKATION OF DEKDS. 
 
 Chap. 136. 
 
 741 
 
 the ref];i stmt ion and copying of such instrument together witli 
 all necessary entries and certificates in connection therewith, 
 shall be considered separate and distinct registrations for eacli 
 municipality in which the land is situate, and .shall be paid 
 for as follows : Where the aggregate copying does not exceed 
 seven hundred words, $1.40 ; where the aggregate copying 
 exceeiis seven hundred words, the sum of fifteen cents for 
 every hundred words or fractional part thereof up to four- 
 teen hundred words, in addition to the .said sum of Sl.'iO ; 
 and where the aggregate copying exceeds fourteen hundred 
 words, the sum ot ten cents for every hundred words or 
 fractional part thereof in addition to the above charges; the 
 said fees shall include all certificates and necessary entries but 
 in case the said instrument embraces more than four dift'erent 
 lots or parcels of land in the same municipality, the Registrar 
 .shall be allowed a fee of 5 cents for entering each lot or 
 parcel in excess of four, but not to exceed $5 for such entries ; 
 56 V. c. 21, s. Ill, (1). 
 
 2. For searching the registry books and indexes relating to 
 the title of any lot or part of a lot of land as originally 
 patented by the Crown, or as afterwai-ds subdivided into 
 smaller lots, shewn by any registered map or plan thereof, 
 when not exceeding four references, twenty-five cents, and five 
 cents for every additional reference up to 50 references, and 
 five cents for every additional two references over 50 ; but 
 in no case .shall a general search into the title to any par- 
 ticular lot, piece or pai eel of land exceed the sum of $3. " A 
 reference" under this subsection shall mean a search of a 
 copy of an instrument in the register, and if the abstract 
 indexes only are examined, the total fee for searching any 
 such lot or part of a lot including four references, shall be 
 25 cents. The word "lot" shall mean one parcel of land as 
 originally patented by the Crown and where such parcel has 
 been subdivided shall include any one of the lots in any such 
 subdivision or re-subdivision, a plan of which has been register- 
 ed. No person shall make copies of or extracts from any in- 
 struments, documents, books, papers or records in the Registry 
 Office, or of any matter contained therein, to an extent in the 
 aggregate exceeding 300 w^ords for any one lot or pait of a lot, 
 exeejit on payment (in addition to the fees for search) of five 
 cents for each 100 words or fraction thereof in excess of said 
 300 words. No person other than the registrar, his officer or 
 employees, shall use ink, or other indelible fluid or .substance, 
 for the purpose of making copies of or extracts from any in- 
 struments, documents, books, papers or recoids in the registry 
 office or of any matter therein contained. Where sub- 
 sequent to the registration of a mortgage the lands in such 
 mortgage have been subdivided by a plan and searches arc 
 made for the purpose of ascertaining subsequent grantees or 
 incumbrancers in sale, foieclosure or other proceedings under 
 such mortgage, the person searching, on producing a statutory 
 declaration that the searches are being made for the purposes 
 
 in different 
 localities. 
 
 For searches 
 as to title. 
 
 Indelible 
 matei'ialb nut 
 to be used in 
 making copies, 
 extracts, etc. 
 
 ■Search to 
 ascertain 
 persons inter- 
 ested in lands 
 (iivided subae- 
 quoutly to 
 regiHtr.^tion of 
 inortgag''-. 
 
742 
 
 Chap. 136. 
 
 REGISTRATION OF DEEDS. 
 
 Sec. 118 (2). 
 
 i* 
 
 Searcliiiif? 
 
 alphabetical 
 
 index. 
 
 General 
 search. 
 
 c 
 
 a 
 
 
 Abatract 
 titles. 
 
 Fees fni- 
 abatraets of 
 title. 
 
 CertificateB. 
 
 Plans. 
 
 aforesaid, .shall be entitled to make such searches on all the 
 lots in the subdivision on payment of a fee of ten cents for 
 each lot, but so that the whole fee for searches shall not ex- 
 ceed $2 ; 5G V. c 21, .s. Ill (2) ; 58 V. c. 22, s 7 ; 60 V. c. 14, 
 s, 21 ; 62 V.c. 16, ss. 1(5,17. 
 
 3. For searching, i*' specially required, the alphabetical in- 
 dex of names referred to in section 37 as to each name in the 
 books of any one township, or other legally defined munici- 
 pality in the count}', twenty-five cents ; but if a general search 
 as to any such name is made throughout the county, the 
 aggregate of fees for such search shall not exceed $1 : 5G V, 
 c. 21, ,s. Ill (3;. 
 
 4. For searching, if specially re(iuired, the general registry 
 book for the whole county, refeiTcd to in section 29, as to 
 each name in the said book the sum of twenty-five cents ; 
 59 V c. 29, s. 7. 
 
 5 For every abstract of title to any specific parcel of land 
 certified by the Registrar containing such particulars as to any 
 number of the registered instruments affecting such parcel of 
 land as the party searching may require, twenty-five cents ; 
 and when such abstract exceeds one hundred words, fifteen 
 cents for every additional hundred words ; and for copies of 
 instruments when required, ten cents for each hundred words; 
 The .seals for every abstract shall appear on the face there 
 and shall show the items making up the auiounc of such fees. 
 Where there are two or more lots for which abstracts are 
 reijuired and the entries on such lots are identical, the Regis- 
 trar shall not be entitled to make an abstract for each lot 
 separately, but the abstracts of title of such lots shall be in- 
 cluded in one abstract, and the fees therefor shall be the same 
 as if the abstract applied to one lot only, except that the 
 Registrar .shall be entitled in addition thereto to a fee of 
 twenty-five cents a'^ for a search on each lot after the first lot, 
 and for the first lot he shall be entitled to the same fees as 
 are now payable under this Act in respect of one lot ; and 
 where there are two or more lots for which abstracts are re- 
 quired and the enti'ies on such lots are partly identical, the 
 registrar shall make a full ab^t)•act for one of the lots and 
 enter in the same all the lots to which each instrument refers 
 and in the abstract of the other lots he shall only include 
 entries affecting those lots separately. 62 V. c, 16, a. 18. 
 
 6. For each certificate furnished by the Registrar, except 
 those made under clauses numbered 1 and 5 of this section, 
 twenty-five cents ; 
 
 7. For registration of any plan of town or village lots, in- 
 cluding all necessary entries connected therewith. Si ; but 
 in case the plan embraces more than 20 lots, the Registrar 
 shall be allowed a fee of 5 cents for each lot in excess of 20, 
 not to exceed in the whole $5 ; 56 V. c. 21, s. ill (4-6). 
 
Sec. 118(121 
 
 REOISTKATION OF DKEDS. 
 
 Chap. 136. 
 
 743 
 
 in- 
 
 8. For searches as to the names of registered owners and as 
 to mortgagees under subsection 4 of section 102 of this Act, 
 in connection with the registration of any })lan, the sum of %l ; 
 59 V. c. 29, s. 8. 
 
 ,,f' under sectionK 
 "^ 32 and 36. 
 
 9. For furni.shing the copies required under sections Statements 
 S2 and 35 of this Act, to be paid by the treasurer 
 the county to which any city, town, township, village or place 
 belongs or is attached, the sum of 10 cents for every 
 folio of one hundred words contained in the copies so 
 
 made ; and the county treasurer shall also pay such 
 sum as the Inspector may order in writing specifying the 
 nature of the service under any section of this Act, for repair- 
 ing any book, or copying, mounting, or binding plans, or for 
 new plans and surveys, or for new abstract indexes, under the 
 provisions of section 35 of this Act ; and towns separated 
 from counties for municipal purposes, and cities in which no 
 separate Registry Office exists shall bear a ratable proportion 
 of the expense thereof, based on the assessment of all the 
 municipalities within the jurisdiction of the county ; or the 
 inspector may order the expenses of new plans and surveys Fees for pre- 
 and the registration thereof under the provisions of section 35 etc., ^r muni- 
 of this Act, to be p-iid by the treasurer of any local municipal- cipalitiei. 
 ity concerned, or in part by the coimty treasurer and in part 
 by the treasurer of any local municipality, and the local muni- 
 cipality may, subject to the ordei- of the inspector, cause such 
 expenses or part thereof to be levied by assessment on all 
 rateable property comprised in the portion of the municipality 
 attected by such plan or survey. 50 V. c. 21, s. Ill (7) ; 59 V. 
 c.29,s.9; 62 V.c. 16,s. 19. 
 
 10. For drawing each affidavit and swearing the deponent Amdavits. 
 thereto, twenty-five cents ; the same fee to be allowed for ad- 
 ministering the oath when that only is required ; 
 
 11. For exhibiting in the office each original registered in- 
 strument, including search for same, ten cents ; and for pro- 
 ducing each original registered instrument, including search for 
 the same, in pursuance of a judges order or subpoena, the sum 
 of ten cents in addition to the registrar's ordinary witness 
 foes. G2V. c. lG,s.20. 
 
 12. For registering each certificate of payment of mortgage 
 money, and every other certificate excepting certificates pro- 
 vided for in the next succeeding clause, including all 
 entries and certificates thereof, fifty cents ; but in case the 
 said certificate affects more than four difierent lots or parcels 
 of land, the Registrar shall be allowed a fee of five cents for 
 each lot in excess of four ; and in case the certificate embraces 
 two or more lots or parcels of land situate in ditferent muni- 
 cipalities in the same county, or in case the certificate or aggre- 
 gate copying thereof exceeds three hundred words, the regis- 
 trar shall be allowed at the rate of ten cents per folio for each 
 additional 100 words or fractional part thereof of copying 
 
 Showing 
 originals. 
 
 Fees for pro- 
 ducing 
 original in- 
 struments in 
 court. 
 
 Certificates of 
 discharge of 
 mortgage. 
 
 Fees on regiR- 
 tering dis- 
 charge of 
 moitgage. 
 
744 
 
 Chap. 136. 
 
 IIEGISTHATION OF DEEDS. 
 
 Sec. 118(12). 
 
 5 
 
 
 over three hundred words, but not to exceed five dollars in 
 the whole for the registration of such certificate. 62 V. c. 16, 
 s. 21. 
 
 13. The Registrar shall be entitled to charge for registering 
 a certificate under section 85, including all entries in respect 
 thereof, the same fees as are chargeable for registering a certi- 
 ficate of disch.arge of mortgage ; 
 
 Of payment of ^^- For registering each certificate of payment of taxes, 
 t»x«». twenty-five cents : 
 
 Certificate y\ 
 discharge of 
 lien. 
 
 Figureg. 
 
 Fees in caseH 
 not provideil 
 for. 
 
 Disputes a< 
 feee. 
 
 15. In abstracts and certificates where figures are used in- 
 stead of words to donote dates, numbers and quantities, the 
 same shall be charged as if each number, though composed <jf 
 several figures, were but one word. 56 V. c. 21, s. Ill (8 18). 
 
 16. Wliere any Act of this Province, or of the Dominion of 
 Canada requires or permits any instrument or plan to be 
 deposited, filed or registered in the registry office, but omits to 
 provide fees to the registrar for his .services in connection there- 
 with, and no fees therefor are provided by this or any other 
 Act, the registrar shall, in the absence of any express provision 
 requiring him to perform such services gratuitously, be entitled 
 to reasonable fees therefor, the amount of such fees to be 
 named and fixed by the inspector of registry offices. (52 V, 
 0.16,8.22. 
 
 to 110 When any dispute arises in regai'd to any question of 
 fees under this Act, the Registrar shall forthwith submit the 
 same to the Inspector, and shall thereupon notify the person 
 interested or his agent of such submission, and the decision of 
 the Inspector upon the question submitted shall be final, 
 unless appealed from and varied upon appeal as hereinafter men- 
 tioned. All decisions given by the Inspector shall be in 
 writing, and the appeal therefrom shall, be in like manner, and 
 subject to the same rules of practice as nearly as may be as 
 an appeal from the Master in Chambers or a Local Master. 56 V. 
 c. 21, s. 112. 
 
 Table of fees 
 to be posted 
 in 
 ofiice, 
 
 1 /50. Every Registrar shall keep posted up in some con- 
 fees and 
 3. 
 
 3e posted _ .spicuous pliice in his office a printed .schedule of the i 
 ce. charges authorized under this Act. 56 V. c. 21, s. 113 
 
 Registrar to 
 
 ir>i 
 
 „^.„,.„. „„ Every Registrar shall upon request of the person for 
 
 give statement whom the sei'vice is performed, furnish a statement in detail 
 in a^y mat*er^ of the fees charged by him vd respect of any matter for which 
 
 fees are payable under the pro^ ■ uns of this Act. 56 V. c 21, 
 
 8. 114. 
 
 Recovery of \'i,%. Should the treasurer of any county or city in which 
 
 nioi 'af"or"" ^ separate Registry Office is established, on the request of the 
 
 poratioBB. Registrar for the duties performed according to this Act, refuse 
 
 to pay the fees and allowance 3 for any services required by 
 
(12). 
 
 Sec. 124 (2). 
 
 HlirjISTRATION OF DEEDS. 
 
 .Chap. 136. 
 
 74{i 
 
 d in- 
 the 
 iscti of 
 13). 
 
 this Act, the Registrar may prove and recover the same and the 
 cost thereof from the corporation of the county or city in any 
 Court of Record in Ontario ; and the Inspectoi-'s certiHcate of Evidence 
 the amount and of the services rendered shall be prmxa facie 
 evidence of the right to recover. 5(5 V. c. 21,.«. 11.3. 
 
 I ^;V The Registrar shall not be compelled to register any Fees payable 
 instrument unlt-ss the fees authorized by this Act are first ^aSon'*^" 
 paid thereon. 5U V. c. 21,s. IIG. 
 
 Vi4. — (1) Every Registrar shall keep a separate book in ^g^tfa" ♦<> 
 which he shall entei- from day to day, all fees and emoluments of'fee^"'"'""'*' 
 received by him by virtue of his office, shewing separately the 
 sums received for registering each instrument, and for searches, 
 and for extracts or copies. 
 
 (2) Every Registrar shall make up to and including the Slst Refpstrar's 
 day of December of the previous year, a return under oath to »•>""»• ""e- 
 the Lieutenant-Governor annually on or before the 15th day 
 of January, and such return in addition to any other informa- 
 tion which may be required in connection therewith, shall 
 show : 
 
 1. Total number of instruments registered and fees 
 
 therefor ; 
 
 2. Number uncopied and uncompared ; 
 
 3. The number of patents registered and fees therefor ; 
 
 4. The number of deeds registered and fees therefor ; 
 
 5. The number of mortgages registered and fees therefor ; 
 
 6. The number of discharges of mortgages registered and 
 
 fees therefor ; 
 
 7. The number of wills registered and fees therefor ; 
 «. The number of leases registered and fees therefor ; 
 i). The number of abstracts and fees therefor ; 
 
 10. The number of searches and fees therefor ; 
 
 11. The number of mechanics' liens and fees therefor ; 
 
 12. The number of all other instruments registered or filed 
 
 and fees therefor ; 
 
 13. Amount received for work done for which county, 
 
 city, or other municipality is liable ; 
 
 14. Amount received for other services not enumerated 
 
 above ; 
 
 15. Fees earned and not received ; 
 
 16. Gross amount of fees earned for the year; 
 
 17. Gross amount for the previous year ; 
 
 18. Amount |)aid to Deputy Registrar for services and 
 
 amount of other charges in connection with the 
 office paid by Registrar ; 
 
 
 
f 
 
 746 
 
 Chap. 136.. 
 
 REGISTRATION OF DEED.S. 
 
 Sec. 124 (2). 
 
 19. Amount of surplus paid to the county or city for the 
 
 year and when paid ; 
 
 20. Amount of such surplus for the previous year; 
 
 21. Net amount received by Registrar. 
 
 (3) The return shall .sIkjw the number of mortgages 
 registered during the year classilied as follows : — 
 
 Class 1 — The number of mortsra^jes where the considera- 
 tion is nominal or the amount not specified. 
 
 Class 2 — The number of mortgages where the considera- 
 tion is ."$1,000 or under. 
 
 Class 3 — The number of ;riortgages where the considera- 
 tion is over $1,000 and not exceeding S2,000. 
 
 Class 4 — The number of mortgasres where the considera- 
 tion is over S2,000 and not exceeding $5,000. 
 
 Class 5 — 'J'he number of mortgages where the considera- 
 tion is over $.5,000. 
 
 The return shall also show the asgresrate amount of such 
 
 mortgages. 
 
 .5G V. c. 21, .s. 117 (1-3.) 
 
 Resristrar to 
 furnish clerk 
 
 l?55. The Ilegistrar .shall, upon request, furnish to the 
 clerk or the assessment commissioner of a city, a list of all 
 commiMioner absolute conveyances whereby property has been transferred, 
 with list of which have been registered in his office during the next pre- 
 convpyancfts. (.g^jj^^f month, and in such list shall include the names of the 
 grantor, the grantee, the consideration shown in each transfer, 
 and a short description of the land conveyed ; pi'ovided that 
 such list shall not include leases for less than twenty-one 
 years, mortgages, discharges of mortgage, or other like instru- 
 ments, and that the Registrar shall be entitled to have and 
 receive therefor a fee of five cents for everj' instrument 
 included in the said list. 50 V. c. 21, s. 118. 
 
 PaymentK by ' "'i^*- — (1) Every Registrar shall be entitled to retain to his 
 Registrars uu own use in each year all the fees and emoluments received by 
 
 gross income, j^j^ j^ ^j^^^ ^^^^ ^^^ ^^ $1,.50(). 
 
 (2) Of the fees and emoluments received by each Registrar, 
 other than the Registrars for East and West Toronto, in each 
 year, such Registrar, .subject to the provisions of section 129 
 of this Act and of section 162 of 2%e Land Titles Act, shall 
 pay to the treasurer of the county or city for which or for part 
 of which he is Registrar, the following percentages : — 
 
 (a) On the excess over $2,500 and not exceeding $3,000, 
 ten per cent. 
 
 (6) On the excess ever $3,000 and not exceeding $3,50(>, 
 twenty per cent. 
 
 R«v. Stat. 
 c. 138. 
 
Sec. 128. 
 
 IIEGI.STUATION OF DEEDS. 
 
 Chap. 136. 
 
 747 
 
 (c) On the excess over $3,500 and not cxceedinnf $4,000, 
 
 thirty per cent. 
 
 (d) On the excess over 84,000 and not exceeding S4,.500, 
 
 forty per cent. 
 
 (e) On the exces't over S4,500, fifty per cent. 
 
 (3) Of the net income of each year over SI,-")0() every Rt^gis- Percentage of 
 trar, other than tlie Ilegistrars for East and West Toronto, "ayaWoTo^ 
 shall, subject to section 129 of this Act and to section 1G2 municipality, 
 of The Land TitliH Act, further pay to the saiil treasurer Rev. Stat. 
 for the use of the municipality, the following percentages, ''• ^''^■ 
 namely : — 
 
 (a) On the excess over $1,500, not exceeding $2,000, ten 
 per cent, thereof; 
 
 {h)J)n the excess over $2,000, not exceeding S2,.500, 
 twenty per cent, thereof ; 
 
 (c) On the excess over $2,500, not exceeding $3,000, 
 tliirty per cent, thereof ; 
 
 {d) On the excess over $3,000, fifty per cent, thereof. 
 
 56 V. c. 21,' s. 119 ; 57 V. c. 9, s. 1 (G, 7) ; 59 V. c. 29, 
 «s. 11, 13. 
 
 1 JJT. — (1) The Registrars of East and West Toronto, subject Percentage 
 to the jirovisions of section 102 of The Land Titles Act, shall ^et incomeVf' 
 each pay to the Tieasuror of the City of Toronto of his net Toronto 
 income of each year over tlie sum of $1,500, the following KeR'^'^ra. 
 j)ercentages : — 
 
 Rev. Stat, 
 c. 138. 
 
 (a) On the excess 'over S1,.')00, not exceeding $2,000, ten 
 per cent, thereof; 
 
 Q}) On th.e excess over $2,000, not exceeding $2,500, 
 twenty per cent, thereof ; 
 
 (c) On the excess over $2,500, not exceeding $3,000 
 thirty per cent, thereof; 
 
 (tZ) On the excess over $3,000, not exceeding $G,000, fifty 
 per cent, thereof ; 
 
 (e) On the excess over $6,000, ninety per cent, thereof. 
 
 (2) The expenses connected with the work of or in conduct- 
 ing the business of the offices of the Registrars of East and 
 West Toronto, shall not be increased beyond those paid in the 
 year 1895, without the consent of the Inspector in writing 
 first had and obtained. 59 V'. c. 29, s. 12. 
 
 1/88. For the purposes of this Act, "net income" .shall "Net in- 
 mean the excess of all fees and emoluments, including receipts ?°™«'" mean- 
 in the current year, whether on account of the earnings or 
 
 m 
 
748 
 
 Chap. 136. 
 
 RKQISTKATION OK DEEDS. 
 
 Sec. 128. 
 
 iyi' 
 
 Payment of 
 ■urplui fees. 
 
 Rpturn, 
 
 I 
 
 c 
 
 7. 
 
 ^r- 
 
 r 
 
 Adjustment 
 of percentage 
 payable 
 to municipal- 
 ity where 
 liegistrar fills 
 the office for 
 part of year 
 only. 
 
 salary of such year or of any former year or years after the 
 first day of January, 1893, by the Kegistrar, after deducting 
 the disburse tiients incident to the business of liis office and 
 after payment to the municipality of the proportion of tees 
 provided by subsection 2 of section 12G in cases cominjf 
 within that subsection. .50 V. c, 21, s. 122. 
 
 ViW. — (1) On the fifteentli day of January in eacli year 
 every Registrar shall transmit to the treasurer of the county 
 or city for which, or for part of which, he is Registrar, a dupli- 
 cate of the return recpiired by this Act, and shall also pay to 
 such treasurer for the uses of the municipalit 'uch proportion 
 of the fees and emoluments received by h' 'iring the pre- 
 ceding year, as under this Act he is not e ' to ret-^'n to 
 his own use. 
 
 (2) Where a Registry Division includes a county or part of 
 a county, and a city or town separated from the county for 
 munic'pal purposes, the amount aforesaid shall be paid to the 
 treasurer of the county and to the treasurer of the city or 
 town for the use of the municipality in the same proportions 
 in which the gross fees and emoluments are derived from 
 extracts, searches, registrations, and other charges in respect 
 of lands situate in the county, and in respect of lands situate 
 in the city or town. 56 V. c. 21, s. 120. 
 
 130. — (1) Every Registrar, or Deputy Registrar, acting as 
 Registrar, who tills the office of Registrar and receives the fees 
 and emoluments thereof for a part of any year shall, or in 
 case of his death his executors or adn)inistrators shall, in 
 respect of the fees and emoluments received by him during 
 such part of a year pay a proportion tbereof to the municipal 
 treasurer for the uses of the municipality under sections 126, 
 127 and 129 hereof, such proportion of fees to correspond to 
 the portion of the year during which he so filled the office and 
 such proportion to be computed for such part of the year at the 
 same rate as such Registrar or Deputy Registrar would have 
 had to pay had he filled the office for the whole year and had 
 he during that year received fees and emoluments and made 
 disbursements incident to the business of his office for the 
 whole of such year at the same rate as he received and made 
 for the part of the year during which he filled the office. 
 
 (2) Every Registrar or Deputy Registrar in this section 
 referred to shall, within fifteen days after the expiry of 
 the part of the year for which he filled the office, and the 
 executors or administrators of every deceased Registrar wiio 
 filled the office for a part of an}' year and died in office, 
 shall, within thirty days after the death of such Registrar or 
 Deputy Registrar, make, up to and including the days of 
 such expiiy, a return under oath to the Lieutenant-Governor, 
 and such return, in addition to any other information which 
 may be required in connection therewith, shall show for the 
 
Sec. 135. 
 
 IIEGISTRATION OF DEEDS. 
 
 Chap. 136. 
 
 749 
 
 said part of tho year all the particular.s required by sulmection 
 2 i»f section 124 of thi.s Act, and shall al.so, within the said 
 period of fiftt'?i days or of thirty days, as the ctuse may 
 be, transmit to the treasurer of tho county oi city for which, 
 or for part of which, he so tilled the office of Registrar, or 
 Deputy Registrar, a duplicate of such return, and shall also 
 pay to such treasurer for the uses of the municipality such 
 proportion of the fees and emoluments received by him or by 
 the deceased Registrar or Deputy Registrar, as the case may 
 be, during the part of the year herein referred to as ho is 
 hereunder liable to pay to such inunicipality, and sulxsection 
 2 of section 129 of this Act shall apply to the proportion of 
 fees in this secHon mentioned. 59 V. c. 29, s. 17. 
 
 lltl. In th 
 
 126, 127, 128, 
 
 fees and emoluments mentioned in sections Certain fee* 
 1 and l;!') of this Act, there shall 
 
 not he PJ'^'j*"^.^ 
 
 included any sui. receivable from the municipality for the paymentu to 
 preparation of abstract indexes, or for work done under section ".'unicipali- 
 32 or section .S5 or subsection 5 of section 100 of this Act, 
 nor shall anything in this Act contained be construed to apply 
 to the fees or emoluments of any Registrar received on account 
 of services as Returning Officer under the election Acts of the 
 Province of Ontario or of Canada. 56 V. c. 21, s. 99 (5) part ; 
 .ss. 124, 127. 
 
 lli*i. The council of every county, city or .separated town inspection of 
 may by by-law authorize the warden, mayor or treasurer to reffi»try booka 
 inspect the books of office kept in any registry division in the „{ficer "'°''** 
 county or city, for the purpose of testing the accuracy of the 
 returns or computations of fees received by the registrar to a 
 share or percentage of which the county, city or town may be 
 or may become entitled, and the registrar shall at all conveni- 
 ent times allow the said books to be inspected for such purpose 
 free of charge. GO V. c. 14, s. 17. 
 
 lllli. The disbursements of the Registrars shall be subject Disburae- 
 to the revision of the Inspector, and for the purposes of such ment« subjecti 
 revision the Inspector shall have power to take evidence and inspector? " 
 examine witnesses under oath. 50 V. c. 21, s. 120. 
 
 134. The Lieutenant-Governor in Council may make rules Lieutenant- 
 and regulations for the management of the office of Registrar, Governor ma;- 
 and may, by such rules, confer on the Inspector such powers as ^^ reguU- 
 may be deemed necessary for carrying out the provisions of tions. 
 this Act, and all other Acts relating to the duties of Registrars. 
 All such rules and regulations shall be laid before the Legisla- 
 tive Assembly within the first ten days of the session after 
 the making thereof. 56 V. c. 21, s. 125. 
 
 Inspector of Registry Offices. 
 
 point 
 
 135. The Lieutenant-Governor may, from time to time, ap- Appointment 
 int an Inspector of Registry Offices, whose duty shall be, and'hmluties 
 
f 
 
 760 
 
 Chap. 13fi. 
 
 REGISTRATION OF DEEDS. 
 
 Sec. 136- 
 
 i 
 
 c 
 
 r 
 
 Inspection of 
 Buildinf?. 
 
 Book*, etc. 
 
 Office hours. 
 
 Seals of office. 
 New indexes, 
 rians. 
 
 r" 
 
 
 
 Reporting 
 
 t 
 
 ■■ ;"',-'£: 
 
 
 vacancies. 
 
 P'SI^' 
 
 ■jJiH 
 
 ''-•Ui .;f ~ 
 
 
 ^IS 
 
 
 
 
 ,. ■ ■ - 
 
 HI 
 
 W^< 
 
 Instruction of 
 
 r 
 
 H 
 
 ^H^ 
 
 Registrar and 
 
 tt^^lH 
 
 ^f^*' 
 
 his (lutien. 
 
 i 
 
 
 
 
 ?9 
 
 
 I 
 
 
 > 
 
 
 
 
 30 
 
 
 
 
 -< 
 
 
 
 
 Sufficiency or 
 insufficiency of 
 sureties. 
 
 Reporting to 
 Lieutenant- 
 Governor. 
 
 1. To make a personal inspection of the building in which 
 each office is kept, and of the books, deeds, memorials and 
 other instruments in each Registry Office ; 
 
 2. To see that the proper book j "jre provided, that they are 
 in good order and condition, that the proper entries and regis- 
 trations are made therein in a proper manner Hud in a flue and 
 proper form and order, that the indexes are properly kept, and 
 that all the memorials and other instruments are duly endorsed 
 and certified, and preserved ; 
 
 3. To ascertain that the office is kept duly open at and for 
 the pro{)er times, and that it is at all times duly attended to by 
 the registrar or his Deputy ; 
 
 4. To settle on some uniform device for the official seals, and 
 to see that the Registrars supply themselves therewith ; 
 
 5. To inspect all new abstract and alphabetical indexes, and 
 to seUle and certify the sums, if any, chargeable therefor ; 
 
 6. To ascertain whether the proper plttns required by this 
 Act have been filed in the several Registry Offices, and where 
 necessary, to enforce the provisions of the law in that respect, 
 and he may instruct the County Crown Attorney to take the 
 necessary proceedings for that purpose ; 
 
 7. To report upon any vacancies by death or otherwise, in 
 the offices of Registrar and Deputy Registrar ; 
 
 8. To inform the Registrar how and in what manner he 
 shall do any particular act or amend or correct whatever he 
 may find amiss ; and in case he finds the work improperly per- 
 formed by any Registrar, he shall have power to order a 
 new book or books to be prepared and completed by the Regis- 
 trar at his own expense ; 
 
 9. To ascertain the sufficiency or insufficiency of the sureties 
 for the Registrar, and whether they are living or dead ; and 
 
 10. To report upon all such matters, as expeditiously as 
 niav be, to the Lieutenant-Governor for his information and 
 decision. 56 V. c. 21, s. 128. 
 
 Registrars to 
 furnish in- 
 formation to 
 inspector. 
 
 Duty of In- 
 spector on 
 finding work 
 in arrcar. 
 
 ltM». The Registrars shall transmit to the Inspector of 
 Registry Offices such particulars with reference to the business 
 of their offices as the naid Inspector may require. 66 V. c, 21, 
 8. 129. 
 
 IJJT. In the event of the work of any Registry Office being 
 in arrear, and it appearing to the Inspector that no sufficient 
 reason is given therefor, the Inspector shall employ such assist- 
 ance as he deems necessary to perfo'-m the work so in 
 arrear, and the cost of sucli assistance shall be payable by the 
 Registrar to the parties entitled, on the certificate of the 
 Inspector. 50 V. c. 21, s. 130. 
 
Sched. B. 
 
 REGISTRATION (W DEEDS. 
 
 Chap. 136. 
 
 rsi 
 
 (I for 
 toby 
 
 138. A sum not exceedin<j $2,000 per anninii, and travelling Salary of 
 aud other expenses, necessarily incurred, shall be allowed to the J"*pecto'- 
 Inspector of Registry Offices. 50 V. c. 21, s. 131 ; 59 V. c. 29, 
 s. 10. 
 
 SCHEDULE A. 
 
 {Section 13). 
 
 FORM OP COVENANT OF EEOISTRAK. 
 
 Know all mou by these presents, that we, A. B., Registrar of 
 Esciuiro, and C. £)., of Esquire, and E. F., of 
 
 Esquire, do hereby jointly and severally for our and each of our heirs, exe- 
 cutors and administrators, covenant and promise, that the said A. B., as 
 Registrar of shall well, truly and faithfully perform the duties 
 
 and obligations of his office as such Registrar, and that neither he nor his 
 Deputy shall negligently or wilfully misconduct himself in his said office 
 to the damage of any person or persons whomsoever ; nevertheless, it is 
 liereby declared that no greater sum shall be recovered under this cove- 
 nant against the several parties hereto than the following, that is to say ; 
 against the said A. B., in the whole, $ [the amumit fixed by Order in 
 
 Council] ; agiiinst the said G. IJ. and E. F., $ respectively [the 
 
 amount fixed by Order in Council for each]. 
 
 In Witness Whereof we have hereunto set our hands and seals this 
 day of ' , A. D. 18 . 
 
 Signed, sealed and delivered in the presence of 
 
 } 
 
 56 V. c. 21, Sched. A 
 
 SCHEDULE B. 
 
 (Section 13.) 
 
 FORM OF AFFIDAVIT OF .lUSTIFICATION. 
 
 County of 
 To wit 
 
 it; j 
 
 I, A. B,, of one of the sureties 
 
 in the annexed covenant named, make oath and say as 
 follows : 
 
 1 am seised and possessed to my own use of real (or real and personal) 
 estate in Ontario oi the actual value of { over and above all charges 
 
 upon, or incumbrances affecting the same. 
 
 2. {Where, the party has real estate.) The said real estate consists of 
 {dencribing the property.) 
 
 3. I a,m worih {the amount for inhich the party has becoitie liable by the 
 covenant) $ over and above my just debts. 
 
 4. My post office address is as follows : {insert name of post office;) 
 
 Sworn before me at , in the " 
 
 County of , this 
 
 day .jf , A. D. 18 . 
 
 56 V. c. 21, Sched. B. 
 
 •} 
 
752 
 
 Chap. 136. 
 
 REGISTKATIOX OF DEED.S. 
 
 Sched. C. 
 
 c 
 z 
 
 .< 
 r 
 
 SCHEDULE C. 
 
 {Section, 20) 
 
 FORM OF REGISTRAR S OATH OF OFFICE. 
 
 Ontario. 
 
 County of "j i (lutme and describe deponent,) liaving been appointed 
 
 > by the Lieutenant-Governor to the office' of Registrar, in and 
 
 To wit : J for the {name of liegistry Division,, etc.,) do swear that 1 
 
 will well, truly and faithfully perform and execute all duties 
 
 required of me, under the laws of this Province, pertaining to tlie said 
 
 office, so long as I continue therein, and that 1 have not given directly or 
 
 indirectly, nor authorized any person to give, any money gratuity or 
 
 reward wliatsoever for procuring the said office for nie. 
 
 Sworn before us at 
 the day of 
 
 , A. D. 18 
 
 A B J P ) 
 
 p' ry' r p ' f I"^ '^^^ ^<"' tlie said County, 
 
 56 V.c. 21, Sched. C. 
 
 03 
 73 
 
 > 
 
 5 
 
 SCHEDULE D. 
 {Section 31.) 
 
 FORM OF CERTIFICATE RESPECTING REGISTRY BOOKS. 
 
 This register contains pages exclusive of index, and 
 
 is to be used in and for the City {or Town, Incorporated Village or Town- 
 ship) of , in the County of , lor the 
 enregistration of deeds, duplicates, and other instruments under the pro- 
 visions of The Registry Act, and is provided in pursuance of the 
 requirements of the said Act. 
 
 Dated tiiis day of , A. D. 18 , 
 
 A. B., Judge of the County Court of 
 
 or 
 A. B. Warden of the County of 
 
 \ 
 
 56 V. c. 21, Sched. D 
 
Sched. E. 
 
 REGISTRATION OF DEEDS. 
 
 Chap. 136. 
 
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 REGISTRATION OF DEEDS. 
 
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Sohed. H. 
 
 REGISTRATION OF DEEDS. 
 
 Chap. 136. 
 
 755 
 
 
 9i 
 
 CO 
 
 SCHEDULE G. 
 
 {Section 40.) 
 
 FORM OF AFFIDAVIT OF EXECUTION. 
 
 County of ) I, 
 
 \ the of 
 
 To Wit : ) County of 
 and say : 
 
 ,of 
 
 in the 
 , make oath 
 
 1 Tliat I was personally present and did see the annexed {or within) 
 inutruniont (and a duplicate, if any, according to the fact) duly signed, 
 sealed and executed by and 
 
 the parties thereto. 
 
 2. That the said instrument (and duplicate, if any, accurdinij to the 
 fact) were executed at the of 
 
 3. That I know the said parties {or one or more of them, accorditig to the 
 fact). 
 
 4. That I am a subscribing witness to the said instrument (and dupli- 
 cate, according to the fact.) 
 
 56 V. c. 21, Sched. G. 
 
 
 SCHEDULE H. 
 
 (Section i'S.) 
 
 AFFIDAVIT OF EXEt'tlTION WHERE THE INSTRUMENT IS A SECURITY BUT 
 DOES NOT CONVEY TJIK LAND. 
 
 County of \ \, A. B., oi the in the County 
 
 To Wit : / of {addition), iiiake oath and say : 
 
 1. Thivt I was personally present and did see the annexed (or within) 
 instrument (and a duplicate, if any, according to the fact), duly signed, 
 sealed and executed by and 
 
 the parties thereto. 
 
 2. That the said instrument was read over in my presence and ex- 
 plained to the said , and that he appeared perfectly to under- 
 stand the same, and was informed that it might be registered as an in- 
 cumbrance on his lands. 
 
 3. That the said instrument (and duplicate, if any, according to the fact) 
 was {or were executed at the of 
 
 4. That I know the said parties (or one or more of them, according to the 
 fact). 
 
 5. That I am a subscribing witness to the said instrument (and dupli- 
 cate, according to the fact). 
 
 56 Y. c. 21, Sched. H. 
 
756 
 
 Chap. 136. 
 
 REGISTRATION OF DEEDS. 
 
 Sched. I. 
 
 HO 
 
 c 
 
 SCHEDULE I. 
 
 {Section 50.) 
 
 CERTIFICATE OP COUNTY JUDGE IN LIEU OF AFFIDAVIT OF EXECUTION. 
 
 OSTARIO. 
 
 County of 1 ^> 
 
 > Judge of the County Court of the County of 
 To Wit : J , certify that, from the proof adduced by 
 
 {name the person produciwj the proof, and date the 
 evidence given), I am satisfied of the due execution of the within instru- 
 ment (,o»- of the instrument whereof the within is a copy, memorial or 
 duplicate, as the case may be). 
 
 As witness my hand at the 
 
 day of A.D. 18 
 
 A.B., 
 .Judge of the County Court of 
 
 56 V.c. 21, Sched. I. 
 
 I 
 
 r 
 
 SCHEDULE J. 
 
 (Section 63.) 
 
 FORM OF CERTIFICATE OF REGISTRATION. 
 
 I certify that the within 
 registered in the Registry Office foi- the 
 of in Book for the 
 
 at o'clock of the 
 
 A.D. 18 
 
 Number 
 
 is duly entered and 
 of the County 
 of 
 day of 
 
 Registrar. 
 
 or Deputy Registrar. 
 
 .56 V.c. 21, Sched. J. 
 
 Entered and registered this 
 A.D. at o'clock. 
 
 SCHEDULE K. 
 
 {Section 67.) 
 
 FORM OF MINUTE OF REOLSTRATION. 
 
 day of 
 
 66 V. c. 21, Sched. K. 
 
Sched. M. 
 
 REGISTRATION OF DEEDS. 
 
 SCHEDULE L 
 
 Chap. 136. 
 
 757 
 
 {Section 70.) 
 
 KQRM OF DISCHARGE OF MORTOAQE. 
 
 To the Registrar of the County of 
 
 I, , of , do certify that haa aatisfied all 
 
 money due on, or to grow due on (or has satisfied the sum of ( men- 
 
 tioned in), a certain mortgage made by of to 
 
 which mortgage bears date the day of A.D. 18 , and 
 
 was registered in the Registry Office for the County of on 
 
 the day of , A.D. 18 , at minutes past 
 
 o'clock, noon, in Liber for as No. {here mentio7i the day 
 
 and date of registration of each assignment thereof, and the names of the 
 parties, or mention that such mortgage has not been assigned, as the fact may 
 be), and that I am the person entitled by law to receive the money, and 
 that such mortgage {or such sum of money as aforesaid, or such part of 
 the lands as is herein particularly described, that is to say : ) 
 
 is therefore discharged. 
 
 Witness my hand this day of A.D. 18 . 
 
 A. B. 
 
 One Witness. ) 
 
 56 V. c. 21, Sched. L 
 
 SCHEDULE M. 
 
 t 
 
 {Section 83.) 
 
 FORM OF CERTIFICATE OF DISCHARGE OF MORTGAGE BY SHERIFF, ETC. 
 
 To the Registrar of the County (Division or City, cw the case may be) 
 of 
 
 \, A. B.,oi Sheriff of the County of 
 
 [or Bailiff of the {number) Division Court of the County {or City, as the 
 ease may be) of ] do certify that by virtue of a 
 
 writ of execution wherein C. D. is plaintiff and E. F. defendant, issued 
 out of Her Majesty's High Court of Justice {or as the case may be) and to 
 me directed, I seized a certain mortgage made by one J. H. of {as de- 
 scribed in said mortgage) bearing date the day of 
 A.D. 18 and registered at of the clock in th ■ forenoon, 
 Liber , for No. {as the case may be) of the 
 day of in the same year {as the case may be) to E. F., of 
 {as described in the mortgage), the defendant in the said writ of 
 executi(jn named, and such mortgage has not been assigned {or has been 
 assigned to the defendant and such assignment has been registered as 
 follows : here set o^it date and registration of assigiiment) and I do further 
 certify that I have levied from the said mortgagor, his executors, adminis- 
 trators or assigns {as the case may be) the full amount of said mortgage 
 {or 9 parcel of said mortgage), and that such mortgage is therefore dis- 
 
 charged (or that such mortgage is as to $ 
 thereby payable, disi^harged.) 
 
 As witness my hand and seal 
 this day of 
 
 Witness, 
 L. M. 
 
 ) 
 
 of office (or 
 
 A.D. 18 
 
 Signed, 
 
 parcel of the moneys 
 the seal of the said Court) 
 
 A. B. 
 
 66 V. c. 21, Sched. M. 
 
768 
 
 Chap. 136. 
 
 REGISTRATION OF DEEDS. 
 
 Sched. N. 
 
 SCHEDULE N. 
 (Section 85.) 
 
 CERTIFICATK OF DISCHAROE OK INSTRUMENT CREATING A OHAEOI. 
 
 5 
 
 C 
 % 
 
 To the Registrar of the County of 
 I, 
 
 County of \ I, of the in the County 
 
 To Wit : ( of (addition), do hereby certify 
 
 that of the of , in the County of (addi- 
 
 tion) , has satisfied all money due or to grow due on (or has satisfied 
 
 to 
 A.D. 
 
 the sum of $ 
 
 by of 
 
 day of 
 Office for the County of 
 18 , at minutes past 
 
 , as No 
 assignment thereof. 
 
 mentioned in) a certain instrument made 
 
 , which instrument bears date the 
 
 18 , and was registered in the Registry 
 
 on day of A.D. 
 
 o'clock noon, in Liber for 
 
 (}iere mention the day and date of registration ofiach 
 
 and the iiam^s of the parties, or mention that such 
 
 instnimeat nas not been assigned, as the fact may be), and that I am the 
 person entitled by law to receive the money, and that such instrument [or 
 such sum of money as aforesaid, or such part of the lands as is herein 
 particularly described, that is to say : ) is therefore discharj^ed. 
 
 Witness my hand this dny of A.D. 18 
 
 One Wittiess 
 
 A. B. 
 
 56 V. c. 21, Sched. N. 
 
 > 
 5 
 
 SCHEDULE 0. 
 
 (Section 100.) 
 
 FORM OF surveyor's CERTIFICATE OF PLAN. 
 
 I hereby certify that this plan accurately shews the manner in which the 
 land included therein has been surveyed and suMividcd by mo ; and t iiat 
 the said plan is prepared in accordance with the provisions of The lifjit- 
 try Act. 
 
 Dated 
 
 18 4. B. 
 
 Provincial Land Surveyor. 
 
 56 V. c. 21, Sched. O. 
 
 SCHEDULE P. 
 
 !». 
 
 (Section 108.) 
 
 AFFIDAVIT WHERE INSTRUMENT DOES NOT CONFORM TO PLAN. 
 
 County of IT (give name, addreu and occupatioti. ) 
 
 To Wit : J make oath and say 
 
 1. To the best of my knowledge and belief, the lands described in the 
 within (or annexed) instrument and duplicate are designated on Regis- 
 tered Plan No. as lots (describe sam^ so as to conform to plan). 
 
Sched. Q. 
 
 REGISTRATION OF DEEDS. 
 
 Chap. 136. 
 
 769 
 
 That 
 
 a party to said instruniont died on or about 
 day of A. D. (or <in 
 
 2. 
 the 
 
 the case may he) 
 
 3. That it would be iinpossiblo (or iuconvouient) for the reason aforewiid 
 to obtain anew instrument or a re-execution of the said instrument contain- 
 ing a description conforming to the said plan. 
 
 4. That 1 have a personal knowledge of the matters herein deposed to. 
 
 Sworn, etc. 
 
 57 V. c. 35, H. 3, part. 
 
 SCHEDULE Q. 
 List op Registry Divisions. 
 
 (Section S.) 
 
 Part 1. 
 
 The undermentioned territorial divisions, as set forth in Chajjtor 3 
 of the Revised Statutes of Ontario, 1897 (except as otherwise men- 
 tioned), constitute separate registry divisions : — 
 
 The Counties of — 
 
 1. Brant. 
 
 17. 
 
 Leeds. 
 
 2. Bruce. 
 
 18. 
 
 Lennox and Addington 
 
 3. Carleton, excepting the City of 
 
 19. 
 
 Lincoln. 
 
 Ottawa. 
 
 20. 
 
 Norfolk. 
 
 4. Dufferin. 
 
 21. 
 
 Ohtfirio. 
 
 5. Dundas. 
 
 22. 
 
 Oxford. 
 
 6. Elgin. 
 
 23. 
 
 Peel. 
 
 7. Essex. 
 
 24. 
 
 Peterborough. 
 
 8. Frontenac, excepting the City 
 
 25. 
 
 Prescott. 
 
 Kingston. 
 
 26. 
 
 Prince Edward. 
 
 9. Glengarry. 
 
 27. 
 
 Renfrew. 
 
 10. Grenville. 
 
 28. 
 
 Russell. 
 
 11. Haldimand. 
 
 29. 
 
 Simcoe. 
 
 12. Hal ton. 
 
 30. 
 
 Stormont. 
 
 13. Hastings. 
 
 31. 
 
 Victoria. 
 
 14. Huron. 
 
 32. 
 
 Waterloo. 
 
 15. Kent. 
 
 33. 
 
 Welland. 
 
 16. Lambton. 
 
 34. 
 
 Wentworth 
 
 «* 
 
 
 , 
 
 The Cities of— 
 
 
 
 35. Kingston. 
 
 37. 
 
 Ottawa. 
 
 36. London. 
 
 
 
 The Provisional County of — 
 
 
 
 38. Haliburton ; and 
 
 
 
 The Districts of— 
 
 
 
 39. Algoma. 
 
 43. 
 
 Parry Sound. 
 
 40. Manitoulin. 
 
 44. 
 
 Rainy River, and 
 
 41. Muskoka. 
 
 45. 
 
 Thunder Bay. 
 
 42. Nipissing. 
 
 
 
760 
 
 Chap. 136. 
 
 REGISTRATION OF DEEDS. 
 
 Sched. Q. 
 
 30 
 % 
 
 C 
 T 
 
 PaH2. 
 
 The undermentioned electoral distkicts, as set forth in Chapter 6 of 
 the Revised Statutes of Ontario, 1897 (except as otherwise mentioned), 
 constitute separate registry divisions : — 
 
 46. Durham, East Riding. 
 
 47. Durham, West Riding. 
 
 48. Lanark, North Riding, except- 
 
 ing Carleton Phice. 
 
 49. Lanark, South Riding, and 
 
 Carleton Place. 
 
 50. Middlesex, West Riding. 
 
 oL Northumberland, East Riding. 
 
 52. Northumberland, West Riding, 
 and the township of West 
 Monaghan. 
 
 6.'J. Perth, North Riding, and the 
 township of Logan. 
 
 54. Perth, South Riding, excepting 
 
 the township of Logan. 
 
 55. York, North Riding. 
 
 56. The East and North Ridings of Middlesex constitute one registry 
 
 division ; and 
 
 57. The East and West Ridings of York constitute one registry division. 
 
 Fart S. 
 
 The undermentioned registry divisions are constituted as hereinafter 
 set forth : — 
 
 g 
 
 r 
 
 I 
 
 58. East Toronto consists of all that part of the City of Toronto lying east 
 of Spadina Avenue and Spadina Road, continued south and north 
 to the boundaries of the city, the land on Spadina Avenue now 
 occupied by Knox College, and the Islands constituting the 
 southerly j)art of the said city. 
 
 o9. West Toronto consists of all that part of the said city lying west of 
 Spadina Avenue and Spadina Road, continued as aforesaid to the 
 boundaries of the city. 
 
 60. Grey, North Riding, consists of the townships of CoUingwood, 
 
 Derby, Euphrasia, Holland, Keppel, St. Vincent, Sarawak, Sul- 
 livan and Sydenham, and the towns of Meaford, Owen Sound and 
 Thombury. 
 
 61. (Jrey, South Riding, consists of the townships of Artemesia, Bentinck, 
 
 Egremont, Olenelg, Normanby, Osprey and Proton, the town 
 of Durham, and the incorporated villages of Dundalk and Mark- 
 dale. 
 
 62. Wellington, North Riding, consists of the townships of Arthur, Minto, 
 
 Maryborough, Peel and West Luther; the towns of Harriston, 
 Mount Forest and Palmerston, and the incorporated villages of 
 Arthur, Clifford and Drayton. 
 
 63. Wellington, South and Centre Ridings, consists of the townships of 
 
 Guelph, Eramosa, Erin, Nichol, Pilkington, West Garafraxa and 
 Puslinch ; the city of Guelph, and the incorporated villages of 
 Elora, Fergus and Erin. 
 
 Note. — The townships hereinbefore mentioned include all towns and 
 in.iorporated villages situated within the limits thereof respectively. 
 
 56 V. c. 21, Sched. P. 
 
KECIISTUATION OF DEEDS. 
 
 m 
 
 NOTES. 
 
 Regigtration compulsory- Until 13 * 14 Vict. c. (W (18(51) the RegiHtry Acts 
 had IK) operation until the jjrunt frr)in tiie Crown had istiued, and Rome 
 memorial of an inHtrumunt han been registereil. RegiHtration was, therefore, 
 permissive, and not imperative; Jones v. Cowden (1874).'{4 U.C. R. 345. Since 
 that time the law has been tiiat, after the grant from the Crown, every unregis- 
 tered deed is fraudulent and void as against a subseciuent purchaser oi mort- 
 gagee for valuable consideration witiiout actual notice ; see s. 87. Practically, 
 therefore, registration is compulsory except as against execution creditors ; 
 Russell v. Russell (1880) 28 (ir. 419- Jellett v. VVilkie (18<)(i) 2(i S. C. R. 282. 
 Registration is essential to uomplete a title, so that an abstract not showing 
 a deed to be registered is imperfect and does not show a good title ; Kiti'hen v. 
 Murray (1865) IOC. P. 69; Brady v. Walls (1871) 17 Or. 699; Laird v. Paton 
 (1884) "O.R. 141. 
 
 Effect of Registry Act. Tlie efll'ect of the Act was stated by Hagartv, C. J., 
 in Millar v. Smith (1873) 23 C.P. 47, as follows : 
 
 1st. Priority of registration shall prevail, 
 
 2nd. But twelve months shall be allowed for registration of wills. 
 
 .3rd. Registrati<m shall in Equity bo notice. 
 
 4th. Priority of registration shall in all cases prevail, except as against actual 
 
 notice. 
 5tli. Equitable liens and charges shall not prevail in any Court against a 
 
 registered instrument. 
 
 The words " in E(iuity" which occurred in s. 66 of the Act in force ot the 
 time of this decision (31 V. c. 20) are omitted in the corresponding section (92) 
 of the present Act. 
 
 Registration as notice. Registration is notice to all persons claiming any 
 interest in the lands subsecjuent to such registration, notwithstanding any 
 defect in the jjroof for registration ; s, 92. If any registered document is 
 executed so as to bo binding upon the party executing it, a subsequent pur- 
 chaser from sue!) per.son cannot set up a mere informality in the mode of proof 
 for registration as nullifying the statutory effect, which is given to the fact of 
 registration, unless, perhaps, the objection taken constitutes an absolute defect 
 in the proceeding, as, for example, the absence of any affidavit of execution; 
 Rooker v. Hoofstetter (1896) 26 S. C. R. 41, 46; but where an instrument 
 registered had another document attached to it, and without any proof of 
 execution of such attached document, the Registrar received and registered it 
 with the other, it was held that such registi'ation constituted good notice ; 
 Armstrong v. Lye (1890) 27 O. R. .'jU, 24 A. R. .543. Formerly defective 
 registration was not notice; Boucher v. Smith (1862)9 ftr. .347; Read v. 
 Wliitehead (1864) 10 Or. 44(i, 2 E. & A. 580. 
 
 Where several parcels of land are comprised in one mortgage the purcliaser 
 of any parcel therein must take notice of any intervening registered mortgage 
 or conveyance of other parcels therein which may have the effect of throwing 
 the whole burden of the first encumbrance on the parcel which he is acquiring ; 
 Clark V. Bogart (1880) 27 Or. 450. A conveyance, when registered, is notice 
 of every thing which, according to law, passes under the description contained 
 in it or as incident thereto, e.g. an easement of drainage over the grantor's 
 other property ; Israel v. Leith (1890) 20 O. R. 361. And it is also notice of the 
 effect of the conveyance as explained by subsequent registered instruments ; 
 McKay v. Bruce (1891) 20 0. R. 709,718. 
 
 Although registration is notice it does not preclude the enquiry whether 
 there was knowledge in fact and relief may on equitable grounds be, in a 
 proper case, given to a party who failed to obtain knowledge by omitting to 
 search ; Abell v. Morrison (1890) 19 0. R. 669, and see Mcleod v. W^adland 
 (1894) 25 O. R. 118 ; but in Gray v. Coughlin (1891) 15 S. C. R. at p. 570, 
 Strong J. said : " Registration is conclusive and not merely presumptive 
 notice to all subsequent purchasers and incumbrancers." 
 
762 
 
 HEGISTRATKJN OF DEEDS. 
 
 Kof^iHtrv Act is binding on railway companioH having powers of I'x- 
 H'opiiation ; 
 
 "v Act is 
 fiiitv V. i 
 
 o 
 
 % 
 
 c 
 z 
 
 < 
 
 r 
 
 i 
 
 r 
 
 Th 
 
 R. m). 
 
 What May Be Registered. 
 
 \l)l.luhy (l«7'i) liMJr. 'ior) ; K. v. Smith (IH7») 43 U. V. 
 
 Kv(uy (Itu'iinu-nt whcreliy landH or real UBtatu in 
 
 Ontario may he tnui.stVirud. disposcMl of, charged, incumliercd or atfeeted in 
 anywiHC! may ho registered ; S. 'i ( 1 ) ; McMaster v. Phi|)|)s (18.5")) ") (Jr. 253. A 
 document ntuting " I claim the landH and premiHCH known and deHcrihed aK 
 follows, etc.," is not an inHtruincnt cajwihle of registration ; Ontario Industrial 
 I^ian Co. V, Lindsoy (1HH.S) :} O. K. 7">. A memorandum agreeing to charge 
 property for a debt due, and to execute a mortgage for that purpose may he 
 registered: F[oof8tetter v. Hooker (18!)")) ^i A. H. 17.-|, 2(1 S.C. K. 41. A 
 eonvevance of growing timher may l)e registered; Kllis v. (Jruhh (183r») .1 
 O. S. 611 ; Ferguson v. Hill (18r.4) 11 U. (J. R. .VW ; Short v. Ruttan (1854) 
 12 U. C. R. 79 ; McLean v. Burton (187«) 24 (!r. 134. An alimony judgment 
 is not an ordinary deht, hut is a charge on the land of the defendant 
 when registered; Ahraham v. Abraham (18!)0) 1!M). R. 2(il, 15 A. R. 4.3(1. 
 
 Reference to Plans. A ccrtific^ate lis pendens nnist refer to a sub-division 
 made by a registered plan to entitle it to registration ; Re Thom])Hon and 
 Registrar of VVellingtoii ( 1866) 25 U.C. R. 237; so nuisl a by-law opening a street ; 
 Ro Henderson and Toronto (1808) 2!) O.R. (160; see also Israel v. Leith (18!Ml) 
 20 O. R. 361. Hut a deed which contains a description not sufficient for regis- 
 tration will nevertheless pass a title as against persons other than subsejiuent 
 registered owners for value without notice ; Ratlibun v. Culbertson (1875) 22 
 Or. 465. Whether a conveyance of all the estate, real and pcscinal of the 
 grantor could be registered was a moot point ; Russell v. Russell ( I SKI) 28 (Jr. 
 41!»; Robson v. Carpenter (1865) 11 (Jr. 293. It is now necessaiy that a lo(-al 
 ' de8( ription verified by statutory declaration should be furnished in all cases 
 when the (Jeneral Register is to ho used ; s. 29(3); 62 V. c. 16 8. 1. 
 
 Unpatented Lands. Instruments executed before the grant from the Crown 
 are not affected l)y the Registry Act; Casey v. Jordan (1856) 5 (Jr. 467, but 
 such an instrument may be registered ; R. S. O. c. 31 s. 28; Holmes v. Mooie 
 (1866) 12 (Jr. 296, and will then he notice; Vance v. Cummings (1867) 13 (Jr. 
 15. Actual notice of an inwegistered a.ssignnient of unpatented lands has the 
 
 like effect as actual notice of an unn^gistered conveya 
 1.3 (Ji'. 406 ; 14 (Jr. 451. A person who without 
 
 ilte<! 
 
 ( lotV 
 
 I"" 
 
 • mort. 
 
 l-iHter(186H) 
 .jistration in 
 lie mortgage 
 13, advances 
 will to the 
 Ro Reed v. 
 
 the Registry Oltice of a mortgage of un 
 not being registered in the Indian I)(t 
 the money and obtains a patent f' 
 extent of the nir)nej' advanced obtaii 
 Wilson (1893) 23 O. R. .l.W. 
 
 What Constltatas Resistration. In tli. .(instruct u of the various registry 
 acts, dilticultios have arisen in ascertainin I'xactly what constitutes 
 registration. Is it the delivery of the instrumei lathe registrar or the entry 
 by the Registrar in his books ? Thetpiestion is iii port ant because if notice of 
 a prior instrument is brought homo to a purchase.- at any time before regis' 'a- 
 tion of his conveyance, it is ett'eetual. Under the act of 1795 (35 (Jeo. Ill < 
 where a deed was endorsed by the registrar with a certificate of registni 
 but no entry was found in his hooks other than a marginal note in om- v 
 
 giving the number of the conveyance, and the day and hour of its 'regi' 
 it was held that there was no registration, and that the Registrar's ccj 
 was not conclusive; Doe d. McLtian v. Manahan (1845) 1 U. C. R. 491. 
 96 an instrument is deemed to be registered on delivery thereof t 
 Registiar, either personally or by letter, and received at his office during 
 hours by the Registrar, or some officer or clerk in his office on his behalf, and 
 on payment or tender of the proper fees. 
 
 Leaseholds. Un<ler s. 39, the act does not extend to any lease for a term not 
 exceeding seven years, when the actual possession goes along with the lease, 
 but it does extend to every lease for a longer term than seven years. The 
 possession required is actual possession under a lease for a term subsisting at 
 the date of the execution of a sub8e(iuent registered conveyance. If the pos.ses- 
 sion is under a subsisting lease it will not protect the lessee's right under a 
 further unregistered lease of the same premises for a term to commence in the 
 future; Davidson v. McKay, (1867) 26 U. C. R. .306. But a covenant for 
 renewal contained in a lease, where the present and renewal term do not 
 together exceed seven years, creates a further equitable term for the renewal 
 period, and the further term cannot be regarded as a lease to commence in 
 futuro, but rather as an extension of the first term and the lease is effectual 
 
 tte 
 
 ho 
 
 lice 
 
UEOISTUATION OF DEEDS. 
 
 763 
 
 he 
 I lice 
 
 without rugistration for lioth terniH ; I^tch v. Bright (I Sti!() l(i (ir. (l."»3. The 
 uiinocossftry regiMt ration of a leaHi- dooH not luaken^giBtnilion of an aHHJgnnumt 
 thereof neecHmiry, provided noHxeiiHion goes therowitl, ; KiiigHton lUdg. .Socy. 
 V. Rainsford (IH.W) 10 U. C. R. 236. 
 
 Equitable Intereata. K.|uitablc rightH niich mn an ciiiiitalile mortgage or i\w 
 right to conMolidiite inortgageH, or to s|K'(ilic pcrfor naiici' of parol agrcenientH, 
 partly performed, oi' to wet aside a ('onveyancre or mortgage for fraud, or as a 
 preference, or for un<iue intluence, or to enfon^e a vendoi'H lien or a resulting 
 trust, or an e(niity Ut reform a registered instrument, lieing incapableof registra- 
 tion, were until IHO.") not Kubject to the Registry laws; Mi^Masler v. I'hipps 
 (ISfloloCir. 'i.'jS; Harrison v. Arm(mr(lS«.)) 11 (ir. ;J03; Toronto v. .lurvis (18!».')) 
 '25 S.C.R. "i-ST, 242. Sucii instruments as are capalile of registration must, of 
 course, he registered, or they will lose their jiriority l)y virtue of s. !I7 •, e.g., 
 mortgages of an ecjuity of i-eilernption : (,'ooley v. iSmitli (IS77) 4(1 U. (!. R. 
 .">4.S ; or a grant of an easement ; Ross v. Hunter (IH81)7 S. (". R. 2H!(. S. 9S 
 now makes invalid all <'i|uitable interests as against every registered instru- 
 ment executed hy the party conferring it or his heirs, or even by liis assigns ; 
 Toronto v, .Jarvis (IKi).")), 25 S. ('. R. 2;{7, unless there he actual notice of such 
 equitable interest jirior to legistratioii of such instrument ; Rose v. I'eterkin, 
 (18«r>) l.S S. (', R. ti77 ; I'eterkin v. .McKarlane (1HH4), !) A. R..421I ; Forrester 
 v. Campbell (1870) 17 dr. .S7!t ; Wigle v. .Scltcrington (1872) lit (!r. r.l2. 
 Knowledge that the party having the e{|uitable interest is in possession is not 
 actual notice ; Hell v. Walker (1873 20 (ir. 558 ; (Irey v. Ball(187ti) 2;{ (ir. 
 390 ; Cooley v. Smith (1877) 40 U. C. R. 543 ; Building and Loan Association 
 V. P(Mip8(18!)6)27(). R. 470. 
 
 The right of consolidating separate mortgage debts on separate properties is 
 an equitable one, and will not ne allowed in favor of the nu)rtgagee against .i 
 /tiiisin' incumbrancer of one of the mortgaged jn'opertics without notice : Browei 
 V. Canada I'ernument Building Assn. (1877) 24 (!r. .jOO ; .Johnston v. Rcid 
 (1881) 2!Mir. 203 ; Miller v. Brown (1883) 3 (). R. 210. 
 
 The right of a jterson for whom land is purchased in the name of another t" 
 have the land conveyed to him is an c(|uitaole interest within s. !(8 ; Canada Per- 
 manent Loan and .Savings Co. v. McKay (1881) 32 C. P. 51 ; and so is the right 
 to reform a mortgugi' ; Bridges v. Real Kstate I.,oan and l)el)enture Co. (1885) 
 8 (). R. 403 ; and so is the right of a surety who.se lands are comprised in a 
 mortgage to throw the whole burden of the mortgage on the lands of the princi- 
 pal di'btor ; Core V. Ontario Loan and Debenture Co. (18S5) !l (). R. '2'Ui. A 
 parol trust of larul cannot be enforced as against a registered mortgage by the 
 trustee • Bank of Montreal v. Stewart (188r 14 O. R. 482. A munici])ality or 
 per.son who with the oral consent of the ow.ier builds a sewer through lan<l, 
 ac(|uii'cs an ei|uitablc I'ight to compel a c(mveyance of so niuch of the land as 
 is occupied bv till! scwei', but a purchaser without notice is not afle<tted ; 
 Jarvis V. Tor.Into (1804) 21 A. R. .305, 25 S. C. R. 237 ; Tolton v. Canadian 
 Pacitie Ry. Co. (1802) 22 O. H. 204. 
 
 Tacking. A nioitgagee of the legal estate in land aci|uiring a subsequen*' 
 e(|uitable interest was entitled to tack the subse(iuent ci|uitable inteiest to his 
 legal mortgage, so as to exclude the intermediate c(iuital)le charge, if he had 
 not notice thereof ; Lloyd v. Attwood (18(i0) 3 De <i. & J. 614. The principle 
 acted upon in applying the doctrine of tacking, was that where the equities 
 were e(|ual, the law shouhl prevail. The Regi-stry Act is notice only to subse- 
 quent acquirers ; (iilleland v. Wadsworth (1877) I A. R. 82 ; Pierce v. Canada 
 Permanent L. *. S. Co. (1894) 25 O. R. 671, 23 A. R. 516. But a first mort- 
 gagee who advances a further sum than that secured or contemplated by his 
 mortgage is by virtue of s. 98 a subsequent mortgagee as to any intervening 
 registered mortgage made by his nuirtgagor, whether he has actual notice 
 thereof or not. Tacking is not allowed to prevail against the provisions of the 
 Act. It is not in every ca.se that it is abolished ; Dominion Savings and In- 
 vestment Socy. V. Kittridge (1876) 23 Or. 631. A first mortgagee is prevented 
 from tacking a third mortgage to his first mortgage as against a second regis- 
 tered mortgage. To avoid circuity of action a mortgagor's heirs or devisees 
 are never permitted to redeem a mortgage without also paying a l.ond or judg- 
 ment debt owing by the mortgagor; McLaren v. Fraser (1870) 17 Or. 533. 
 But a personal representative of an insolvent estate or an assignee for the 
 benefit of creditors would be allowed to redeem a mortgage without paying an 
 unsecured debt due by the estate to the mortgagee ; Young v. Spiers (1888) 16 
 0. R. 672. Consolidation of mortgages is not tacking ; Dominion Savings and 
 Inve St mint Socy. v. Kittridge (1876) 23 Or, 631. 
 
 i 
 
764 
 
 REGISTRATION OF DEEDS. 
 
 C 
 
 \ 
 
 r 
 
 mm 
 
 03 
 
 > 
 < 
 
 By-laws. A By-livw of a municipalitv opuning ii road on private property 
 which is not registered, because it (Joes not conform to s. l(K) (3), does not 
 become effectual in hiw ; s. 86, and therefore, a by-law of the municipality pro- 
 viding for the cost of such road is invalid ; Re Henderson and Toronto (189S) 
 29 O. R. (569. 
 
 Plans. A iilan of subdivision shouhl be filed by the owner ; Nevitt v. 
 McMurray (188B) 14 A.R. 120 ; but a person who intends to become the owner 
 may file a plan, and it is binding on him if he adopts it after ac(iuiring title ; 
 Re Chisholm and Oakville (188r>) 12 A.R. 22.1. The Registrar must refuse to 
 file instruments dealing with lots comprised in a plan after its registration, 
 unless the instruments confor'.i and refer to the plan ; s. KM) (3) ; Israel v. 
 Leith (189(1) 20 O.R. 3G1. The only excejitions are (a) where the party 
 executing the instrument has died jjrior to registration ; s. 108 ; (2) when iji 
 the opinion of the Registrar, it would be impossible or inconvenient to obtain 
 a new instrument ; s. 108 ; (3) a final order of foreclosure or of a conveyance 
 under the power of sale contained in a mortgage made bcfi-i; the plans ; a. 100 
 (3). In eases coming within tiie two first excei)tions the atfi<lavit. Form 1', 
 must be registered. Under the last exception, the mortgagee or a purchaser 
 from him, if the mortgagee did not consent to the plan, would j)robably be at 
 liberty to close up the streets and ainiihilate the sulxlivisicm ; Morse v. Laml> 
 (1893) 23 O.R. 1<J8 ; (Jooderham v. Toronto (189")) 20 S.C.R. 2.">2. but he may 
 expressly or im])liedly assent to the plan ; Wyoming v. Bell (1877)24 (U'. r)64. 
 An instrument describing ceitain lots correctly according to a plan, l)ut com- 
 prising other pro])erty not so described may be registered against the correctly 
 described parcel ; Re Thompson and Wellington (18CH) 25 U.C.R. 237. The lay- 
 ing out upon a registered j)lan of a reserve for school purposes, and the .sale of 
 lots according to tiie jilan, is a sutticient dedication to entitle a Public School 
 Board to the propert;> ; Wyoming v. Bell (1877) 24 (ir. r)04. But laying out 
 a parade, fronting upon a lake, will not entitle a purchaser of lots according 
 to the plan, which lots were several hundred yards away, and not directly 
 affected by the closing of the parade, to set aside an order of a judge closing 
 the parade in tiie absence of .some representation, at the time of ])urchase, that 
 the parade would be ke))t open; Re Mcllmurraj' and Jenkins (189;)) 23 A.R. 
 398. And it was said by Macleiuian J. A. that no one can object to the alter- 
 ation of a plan who has not some legal ot "((uitable intercjit in that part of the 
 plan proposed to be altered ; ih. at p. 407 
 
 A conveyance of a township lot excepting certain numbered lots shewn on 
 an luu'egistereil plai. may be registered without registration of the plan, and 
 will comprise all the property .save the excepted lots, and a purchasv.r of a lot 
 not excepted will not obtain title thereto although owing to an amendment 
 made to the plan when registered the lot bears a number similar to that of one 
 of the excepted lots; Muttlebury v. King (1879) 44 U.C.R. 355; the first 
 grantee is under no obligation to register the plan so as to define the excen- 
 tions upon the registry ; ih. If lots on a plan are consecutively numberetl, 
 the fact that one is incorrectly described as being In a certain block or on a 
 certain street will not vitiate a conveyance, the addition of anything to the 
 nunii)er being mere surplusage; Aston v. Innis (1878) 20 'Jr. 42. Altho\igli 
 an uncertified plan caiuiot properly be registered, reference may be made 
 thereto for the description or designation of a lot in the same way as a refer- 
 ence to anv other document ; Ferguson v. Winsor (1885) 10 O.R. 13. See s.c. 
 1 1 O. R. 88\ 
 
 The registration of a plan of property in cities, towns, villages or townships 
 now amcmnts to a dedication of all loads and streets ui)on wliich lots are sold ; 
 Roche v. Ryan (1892) 22 O.R. 107 : R.S.O, (1897) c. 181 s. .39. The cases of 
 Re Waldie and Burlington (1886) 13 A.R. 104, and Sklit/.sky v. C.'ianston (1892) 
 22 O.R. 590, are superseded by the amending legislation. See a history of the 
 legislation to 1887 ; (Jooderham v. Toronto (1895)25 .S.C.R. 246. Until a sale 
 is made the plan is not binding ; s. 110; and even after sales are made it is, 
 except as to public highways, only binding ,suh /iioilo, that is to say, to the 
 extent that a court or a .Tadge may think proper to permit a proposed amend- 
 ment ; Re Wahlie and Burlington (1886) 13 A.R 104, 111. Once a road laid 
 out by an individual has been assumed as a pulilic highway by a corporation, 
 thereafter it can be closed or altered only by by-law and not by the order of a 
 .Judge ; Roche v. Ryan (1892) 22 O.R. at p. 110, and a subseiiuent plan cannot 
 restrict or (pialify the public rights ; Re Peck and (ialt (1881) 46 U.C.R. 211. 
 Lanes shown on a plan are not dedicated to the public. Purchasers of lands 
 comprised in a plan have the right to insist upon a lane shown thereon lieing 
 kept open for their uao, but it would seem that by agreement among them- 
 
REGISTRATION OF DEEDS. 
 
 766 
 
 selvcH, they can iilistiiin from opening it altogether or enforce its l>eing niiiin- 
 taincd hh a private lane ; Re .Morton and St. Thomas (ISSI) A. K. 323, and 
 if one person acquires tiie lane and all the lots he may close the lane ; lit. 
 
 A Judge of a County Coiu't to whom application is made for t\w amendment 
 of a plan, ha:; precisely the same jurisdiction as a Judge of the High Court ; 
 Re Chisholm and Oakville (1885) I'2 A.R. '225. Siiouhl a nuniicipality file a 
 plan made by a private owner it acts as a representative of the owner, and a 
 purchaser from tlie owner is an assign of the person filing the i>lan within s. 
 1 10 so as to give him the right to apply for an amendment tiiereof ; He ^Val<lio 
 and Burlington (188(i) 13 A.R. HW. 11(>. 
 
 Discharges of Mortgage. A statutory discharge of mortgage is a jieculiar 
 instrument. Until registration it is nothing more than a receij)t ; Trust and 
 [.oan Co. v. ( Jallagher ( 187!l) 8 V. R. 100; Re Music Hall ]$lock (1884) 8 O.R. ■i-28. 
 But upoTi registration it o|)i'i'atcs upon the legal estate, although it may lie 
 executed by a ))ersoii, e. g., a shcriti' in whom the legal estate never vested; 
 Dilkc V. l)()uglas (18S0) ."> A. H'. 03. The efl'ect of a discharge is to replace the 
 mortgagee's estate in the peison best ertilled to it, without aflecting the real 
 rights of any person; Brown v. McLean (1889) 18 O.R. 533 : "uit see Fisher v. 
 Spohn(1884) 4 t'.F^.T. 44ti. Such errors as the following are immaterial : An 
 omission of the jiaycr's name ; Carrick v. Sniitii (1874) 35 IJ.C.R. 348 ; or the 
 alteration of an incorrect date; Saylcs v. l$rown (1880)28 <ir. 10 ; or the omis- 
 sion of partic\dars of the date of and (lartics to an a.ssignnient of the mortgage ; 
 He Mara (1888) l(i O.K. 301 ; or the execution by " Eliza " Switzcr of a dis- 
 charge of a mortgage made to " Klizabeth "' Switzer ; Re Clarke and (^'hamber- 
 lain(1889) 18 (). R. 270. Two mortgages should not be attempted io be released 
 liy one statutory discharge; He Smith and Shenston ( 1871) 31 U.C.H. 305. 
 \Vhore a c-.:;rtgagc is paid oil' by a new mortgagee, and a di.scharge of tiie old 
 mortgage registered in ignorance of an intervening eiicumbran<x', such as an 
 execution or a .Mechanics Lien, the new niortgagee may be subrogated to the 
 lights of liu' mortgagee who has been ))aid oti'; Brown v. McLean (1880) 18 
 O.R. 533 ; AbcU v. Morris<m (I800) HI O.R. (i(i9 ; but this right niav be h)8t 
 by laches ; McLeod v. Wadland (1894) 25 O.R. 118. 
 
 Wills. Wills must lie registered within 1'.' months from the death of the 
 testator, unless the devisee is disabled by the contesting of the will or " other 
 inevitable difficulty," otlwrwise a conveyance from tlu^ heirs to a purchaser or 
 mortgagee for value will lie valid ; s. 89: Bondv v. Fox (18()!t) 29 U. C. R. ()4 ; 
 Stephen v. Sim))son (18(i(>) 12 (ir. 493, 15 (^r. 594 ; Rykert v. MiUer (18()7) 14 
 (ir. 25 ; but a conveyance for a nomiiuil consideration will not cut out the will, 
 Wilkinson v. Conklin (ISfiO) 10 C.l'. 211. Infancy is no excuse for not regis- 
 tering a will ; McLeod v. Truax (18.37) 5 0.S. 455;'Manileville v. Nicholl (18.5!») 
 10; U.(!.R. 609 I>ut it may be so in conjunction with other facets; O'Neill v. 
 Owen (1889) 17 O.R. 52.-'.' 
 
 Subsequent Advances on Mortgages. A nunfgage is good foi- the amoinit 
 ex|)rcssed to lie sccurccl tlicrcliy, altiiougli the whole oi' part i.f the nioitgage 
 money is advanced after the registration of the mortgage. But advances 
 made after notice of the execution and registration of a subse(|ueiit mort- 
 gage is ac(iuire(l will be postjioued thereto; s. !)9. This section in eflect 
 states tlu' \dtimale decision in Fierce v. Canada Pernuiiu'iit Loan Co. (1894) 25 
 O.R. 071, 23 A.R. 51« ; 24 O.R. !26. 
 
 Subsequent Acquirers Only Protected. A party aci|uiring an interest in lands 
 is assinned to scarcit the ii'gistry and is atl'ectcd with notice of what such a 
 search would disclose . but this does not aj.iily to oiu' who is not ac(|uiring, 
 liut parting with an interest in lands: Tr\ist and Loan (.'o. v. Shaw (18(19) 10 
 • ir. 448; Kingston BuildJTig Society v. Rainsfcrd (18.")3) 10 L'.t'.R. 23(). A 
 mortgagor is not atl'ectcd with notice of an assignment of tiie mortgage merely 
 by legistration tiiereof, Init a purchaser from him after tiie registration of the 
 a.ssignment is assumed to liavc! siuh notice ; Cilleland v. Wadsworth ( 1877) I 
 .\.R. 82. The notice inoreover is assumed only in favor of jiiior registt^red 
 conveyances from the Fame grantor ; a grantor vcho (■ovenants against enciini 
 bianci's is lialilc to his covcnaiitee on such covenant, though the encuiubrances 
 are registered; I'lattv. (irai.:l Trunk Ry. Co. (1880) 12 O.R. 1;14. A vendor of 
 land whose purchase money is unpaid, is entitled to his veiidoi's lien as 
 against a party claiming umlcr his grantee, by virtue of an instrument executed 
 before the delivery of tlu^ conveyance to his grantee, though such instrument 
 may be registereil before a mortgage for unpaid purcliase money given by the 
 grantee to him. In such a ca.se the conveyance to the purchaser wouhl feed the 
 estoppel created by his earlier conveyance to the ext(>nt o.dy of the interest 
 
766 
 
 REGISTRATION OF DEEDS. 
 
 o 
 
 c 
 < 
 
 r 
 
 *■;■• 
 
 (/: 
 
 GO 
 
 > 
 
 tukcii l)y tlie puroliascr, and that interest would he subject to the vendors 
 right to a k'gal mortgage, and he will therefore he entitled to priority; Nevitt 
 V. MeMurray (lH8(i) U A. R. I'.'fi ; McxMillan v. Munro (18!)8)2,5 A. H. 288. 
 !S. 87 of the Act eonieinphites a transaction of sale or mortgage actually- and 
 entirely 8ul)se(iuent to the execution of the instrument affecting the land 
 mentioned in the first jiart of the section, which instrument may he y. stjwned 
 hy the earlier registration of the former, and not a jH'ior dealing with the land 
 hy a person who has no interest in, or title to it, hut which hy the operation 
 of the law of cstop))el may assume vitality thro\igh the deed of the owner, 
 made in entire igiioraiKc of its existence, and against wliicli nothing in The 
 Registry Act calls upon him to lie on his guard ; per Osier, J. A., 2") A. R. at 
 p. 2<>4. ■ 
 
 Priority of Registration. Priority of registration prevails, although the 
 registered instrument is not in fact handed over to the gi-antee until after 
 legistration of a sul)se([uent instrument ; Muir v. Diunu't (I8(i4) II (ir. So. 
 
 Actual Notice. The actual notice rc(|uired hy the Registry Act is such notice 
 as will make the conduct of tlie puri'haser in taking and registering his convey- 
 ance fraudulent ; New Hrunswick Kailway Co. v. Kclly(l8<t(>) 2(i S.C. H. ;Wl. 
 The notice may he either written or verbal. The purchaser is not bound to 
 attend to vague rumors, or to statements by mere strangers. The notice in order 
 to be binding nnist proceed from some ))erson interested in the property ; Harn- 
 hart V. (ireenshiehls (I8.");{) !) iMoo. 1". ('. 'MS ; Natal Land Co. v. (iood (I8(i8) 
 L.R. 2 P. C. 121, I2it. The notice must begivenorrcccivcdduringthecour.se 
 of or close upon t lie transaction and not at a time long anteci'dent thereto ; 
 Hamilton V. Roy.se (1804) 2 Sell, k L. 'Ml. But it would seem tiiat if the 
 [lurciiaser has oblMiiicd knowledge of the kind which would ojieratt-' on the 
 mind of a reasonable niiiii it will be siillicient ; see Lloyd v. Hankn, (1878) 
 L. R. 3 (^'h. 48S. Where a ])ur(haser had notice that an agreiMuent had been 
 m leat thetinie an ab.solute conveyance was executed, that thegrantor should 
 iiave her whole life to redeem, he was held to have actual notice that the con- 
 veyance was merely a iiKa-tgagej Peteikin v. McKarlane (18H4) it A. It. 429; 
 Rose v. I'eterkin 1 1885) i:{ S.(.'. R. (i77. Possession by the ])arty claiming 
 adversely to the registered title is not such notice as will atl'cct the right of a 
 ])artv claiming under a registered convevance ; Waters v. Sliade (18.")1)2 Or. 
 4o7 ; Sherboneau v. Jells (I8<i!l) I.T Or. .^74 ; Uartv v. Aiiplebv (1872) 1!) Or. 
 2(r) ; lirev v. Hall (I87(i) 2;{ (Jr. .S'tO ; Roe v. Hrad'en (1877) 24' (!r. .W!) ; New 
 Rrunswiik Ry. Co. v. Kelly ( 18!Mi) 2() H.O. R. :UI The evidence of notice 
 must biMjuite .satisfactory and distinct; Hollywood v. Wateis ( 1807) (i (ir. 
 .S2!l. Hut where a jierson fraudulently took and registered a conveyance 
 knowing or believing tliat his grantor had jiarted with his interest, his title 
 was not allowed to iirevail, lliough he did not know and had no correct 
 inforniation who (he true owner was ; McLennan v. McDonald (1871) 18 Or. 
 ")()2 ; and the result was the uimc where the )(urcliasei' knew of an unregistered 
 deed of part of the land though he did not know what part had been conveyed : 
 ."Severn v. .McLellan (1872) lit (ir. 220. 
 
 The tirst registered conveyaiK-e to have ])riority over an unregistered 
 instrument must be for valuable consideration ; Leech v. Leech (I8()5) 24 
 U. (.'. R. ;12I ; and the mere production of the deed through |)iirporting to he 
 for vahie will be insullicient nroof of the fact ; Harber v. McKay (18!)0) 19 
 O. R. 4(i. An antecL<lciit debt will be a sullicient valuable consideration ; 
 Fraser v. Sutherland (I8."»l) 2 (ir. 442 ; but an assignee in insolvency will not 
 acipiire ])riority ; ('oUver v. Shaw (1873) 19 (ir. 099. A pei'.son who for value 
 aecpiires title from a purchaser or mortgagee who has gaine(l (iriority under 
 the Registry Laws ovei' a former unregistered deed or mortgage, is entitled 
 to the boneiit of the jiriority so ae(piired, even thougii Iw^ himself may have 
 had notice ; (iray v. Coughlin (1891) 18 S. ('. R. ."),");}, .'>(i8. Knowledge by ii 
 surety of a prior unregistered mortgage will not atl'ect his light of subrogation 
 to the title of the lirst registered mortgagee to whom h(! is surety ; ih. 
 
 Time of Receiving Kotice. Notice is ell'ectual if ' rought home to the 
 inirchaser at any time liefore the registration of his conveyance. Arnuiur on 
 Titles, 2iid VA. 02. In Millar v. Smith (1873) 23 0. P. 47, it was said that 
 the intention was evidently to protect an innocent purchaser who had not 
 actual notice when he etl'ected his purrJiase ; but the section (s. 9") is worded 
 so as to refer the notice to the time of registration instead of the time of 
 purchasing or paying his nuiney. And in (iray v. ('oughlin (1891) 18 S. C. R. 
 hiiW, .'>71, Strong J. said " notice of a prior unregisteroil deed or e<piity, after 
 the execution of a conveyance or mortgage, but before registration, is Huflicieiit 
 to postpone the party claiming under it. 
 
REGISTRATION OF DEEDS. 
 
 767 
 
 vendors 
 
 : Nevitt 
 
 U. '28H. 
 
 iilly and 
 
 tlie land 
 
 stpoiu'd 
 
 the land 
 
 jpwation 
 
 e owner, 
 
 g in Tlu- 
 
 A. R. at 
 
 Abstract. A Registrar's abstract is not admissible as evidence of title ; 
 Oaniblo v. McKay (18.->8) 7 C V. 31!». 
 
 Liability of Registrar. A Registrar is liable for acts or omissions causing 
 damage although arising wholly from negligence or mistake ; e. g. for 
 improperly, hut in good faith icgistering an instrument not registrable ; 
 Ontario Industrial Loan Co. v. Lindsev, (IHSS) (iO; or for omitting a mortgage 
 from an abstract of title ; Harri.son v'. Brega (IS61) '20 U. (". H. 3-_'4 ; or for 
 (imitting an instrument from the al)stract index; (Jrcen v. I'onton (1884) 8 
 O. R. 471. liut there must be privity between the Registrar and the iierson 
 damaged ; ih. 'J'he duty of keeping his books correctly is, while in (me 
 sense a public duty, for tin? benefit of those who make searches and ])ay f(;es 
 for so doing ; and liability for breach of such duty must be cimtined to those 
 <lirectly injured ; per Cameron (J. J. (ireen v. I'onton (1884) S (). R, 474. 
 Whether ho would be liable to a third per.son dealing with the person to whom 
 a certificate was granted upon the faith of it, is undecided; ih. 
 
 Payments of the ])urcliase nu)ney to the vendor after notice of the 
 Registrar's otnission of a mortgage will not be allowed as damages agairi.-it the 
 Registrar ; Hrcga v. Dickey (18(i!») l(i (Jr. 4!(4. Should the Registrar take an 
 assignment of the omitted nioitgage he may be entitled to foreclose the 
 same ; ih. In an action against a Registrar for not paying over to a Munici- 
 pality its share of fees, notice of action is not necessary; Hruce v. Mcl.,ay 
 (lS8.'i) li 0. U. '23. Nor is a Registrar entitle<l to noticeof action where he is sued 
 for negleetini; aiui refusing to furnish a statement in detail of fees as rc(|uirc(l by 
 s. 121 ; Ros.s V. McLay (r87(i) 40 U. C. R. HX 
 
 Liability Of Sureties. Sureties on a Hon<l in the foiin of Schedule A. given 
 in puisuance (jf s. l.'{ are not liable to the Miniicipalitv for the share of fees 
 payable thereto under S.S. l-2()-l.S.S: Middlesex v. Sm'allman (18!I0| I!) O. R. 
 ;t4!(, '20 0. R. 487. The Municipality in oriler to be sciiirt'il nnist obtain a 
 special security in pursuance of s. 17. 
 
 Fees. The Registrar on exhibiting a jdan to an assessor, wiio <lesircs, for 
 assessment purjujses, to check the dimensions of the various lots shewn thceon, 
 is not entitled to charge as for a search on eacli lot ; Lindsev v. Toronto 
 (187.'>) '2.") (J. 1'. ,'t,'W. .\ person is not entitled to see an original registere<l 
 instrument upon giving the Registrar tlie names of the ])arties and the num- 
 ber of the I.,ot u))oii )iayment of 10 cents, without also giving the registered 
 nund)er of the in.stru'nient ; Macn.miara v. McLay (188:{) 8 A. R. .•{Ml. A 
 person who examines the abstract index, and asks to see four of the registra- 
 tions can oidv be charged "2") cents, lliougli the index lontains 31 legist rat ions 
 on tlie h)t ; Ro.ss v. McLay (1870) •20 C. V. 100 : Maciiamara v. McLiiy (188;{) 
 S A. R. .SH). A Registrar may in preparing an abstract, rely on the abstract 
 index, and give a mere copy thereof, but hi^ is entitled to charge the same fees 
 as if be searched each instruiiient thereon ; but if a copy only of the abstract 
 index is asked for, no more than lit cents a folio can \)r charged ; Maciiamara v. 
 McLay (I88,S) 8 A. K. .SIO. A registrar when rcquiied to furnisli a cr)py of 
 any document, can make no charge for a searcli for the original ; |)er Spragge, 
 ('. J. 0.;i'). Where lands coin|)riscd ilia mortgage iiave sul)se(|uently been 
 sub-divided by a registered plan, the mortgagee isentitlcd to make .searches on 
 eiich of the lots shown on the plan on paymelit of a fee of 10 cents for each lot, 
 not exceeding S2 in all, on producing a statutory declaration that such scarciics 
 are made for the purpose of ascertaining subsecpient grantees or incumliraiices 
 in sal(!, foreclosure or other ))rocec(lings under such mortgage ; s. II!) (2) ; tlie 
 decision of Morse v. Lamb (18<):{) '23 (). K. 107, (108, where .IfllO was allowed in 
 a similar case is by virtue of the amendment made in section 118 (2) not now 
 law. 
 
 Registered duplicate as evidence. The production of the registered duiilicate 
 original of an instiument with the registrar's eertilicate iiuliirsed thereon is, 
 MiKler H. ()3, jirima J'ucie evidence of the duo execution thereof ; Canada Per- 
 manent L. &. S. Co, v. Page (1879) 30 C. P. 1. notwitlistan<ling that material 
 alteraticis ajipear on the face of the instrument; Greystoek v. Barnhart (1899) 
 19 C. L. T, 38 L 
 
768. 
 
 Chap. 163. PROPERTY oi- m.\rrif:i) womkn. 
 
 Soc. 1. 
 
 CHAPTER 163. 
 
 An Act respecting the i)roperty of Married Wonion. 
 
 < 
 O 
 % 
 % 
 
 c 
 
 < 
 
 Short title, s. 1. 
 
 iNTERrUKTATION, 8. 2. 
 
 Right to hold propkuty and to 
 
 contract, 88. 3-7. 
 Execution of general i'ower, s. 8. 
 Power for court to lUNr) interest 
 
 OF married woman, 8. 9. 
 
 DeI'O.SIT.S, stocks, etc., , STAN DINfi IN 
 NAME OF .MARRIED WOMAN TO BE 
 DEEMED HER l'ER.SONAL PRO- 
 PERTY, 88. 10, 11. 
 
 InVE.STMENTS in JOINT NAMES OF 
 MARRIED WOMEN AND OTHERS, 
 .8. 12, 13. 
 
 Fraudulent investments with 
 
 money of hitsbani), 8. 14. 
 Remedies of married woman for 
 
 PROTECTION of SEI'ARATE PRO 
 
 pbhty, s. 15. 
 
 Ante-nuptial debts and liabili- 
 ties, 8. Ki. 
 
 Liability of husband for wife's 
 debts, etc., 88. 17, is. 
 
 (.Questions between husbani> and 
 wife as to property to be 
 de( ide!) in a summary way, 
 
 S. lit. 
 
 Married woman as an executrix 
 or tru.stke, 8. 20. 
 
 SaVINI! AS TO SETTLEMENTS, 8. 21. 
 
 When married woman may obtain 
 order of protection for earn- 
 ings of her minor children, 
 8. 22. 
 
 LiHiAL REPKKSENTATIVK OF MARRIED 
 
 WOMAN, 8. 2.'J. 
 RiOHTS PRIOR TO 47 V. C. 1!), NOT 
 
 AFFECTED, 8. 24. 
 
 03 
 
 > 
 
 < 
 
 Short title. 
 
 TTER MAJESTY, by and with the a<lvicc and consent of 
 .i\ the Lefrislative Assembly of the Province of Ontario, 
 eii.tcts as follows : — 
 
 1. This Act may bo cited as " The Marrie/l Womin's Pro- 
 pert 1/ A ctr II. S. 6. 1 .S87, c. 1.S2, s. 1. 
 
 Interpretation 
 "Contract." 
 
 Liabilities . 
 
 "Property." 
 
 Married 
 wuman to \w 
 capable oi 
 holding 
 property ub a 
 feme sole. 
 
 "i. In this Act the word " contract " shall include the 
 acceptance of any trust, or of the office of executri.x or admin- 
 istratrix, and the ])rovisions of this Act as to liabilities of 
 married women shall extend to all liabilities by reason of any 
 breach of trust or devastavit committed by a married woman 
 being a tru.stee or executrix or admiiii.stratrix either before 
 or after her marriiiffe, and hor husband shall not be subject to 
 such liabilities unless he has acted or intermeddled in the trust 
 or administration, and the word " property " shall include a 
 thing in action. 11. S. O. 1.S.S7, c. Ui2, s. 2. 
 
 J{. — (1) A married woman shall he capable of acquiring, 
 holding, and disposing by will or otherwise, of any real or 
 personal property as her separate property', in the snme man- 
 ner as if she were a feme sole, without the intervention of 
 an}' trustee. 
 
S.;c. 1. 
 
 Dm en. 
 
 LIAllILI- 
 
 )R wife's 
 
 tANI) AN1» 
 V TO BK 
 KY WAY, 
 
 XECUTKIX 
 
 (, 8. 21. 
 AY OBTAIN 
 KOll KAKN- 
 IIIILDKEN, 
 
 MAKKIEI) 
 
 C. 19, NOT 
 
 ansent of 
 Ontario, 
 
 itn's Pro- 
 
 elude tlic 
 or lulinin- 
 bilities of 
 ion of any 
 3(1 woman 
 lier before 
 su\)ject to 
 1 the trust 
 include a 
 
 acquirinjf, 
 iiy real or 
 ■*i\n)e nian- 
 ■vention of 
 
 fcJeC. 5 (1). PROPKUTY OK MAKKIED WOMEN. Chap. IGH. 769 
 
 ("2) A married woman shall be capable of entering into anil Power to 
 rendering herself liable in respect of and to the extent of her <=""''■»<'*• 
 separate property on any contract, and of suing and being sued, 
 in all respects as if she were & feme Hole, and lier husband need 
 not be joined with her as jdaintiti" or defendant, or be made a 
 party to any action or other legal proceeding brought by or 
 taken against her ; and any damages or costs recovered by her 
 in any such action or proceeding shall be her separate pro- 
 perty ; and any damages or costs recovei'ed against lier in any 
 such action or proceeding shall be payable out of her separate 
 property, and not otherwise. R. S. O. 1887, c. 132, s. 3 (I, 2). 
 
 (3) Evei'V contract entered into by a married woman prior Contraou 
 
 1897. 
 
 to the 13th day of April, 1897, shall be deemed to be a "con- 'aJ;^-!.'^--'' 
 tract entered into by her with respect to and to bind her 
 separate property, unless the contrary is shewn. 
 
 (4) Every contract entered into by a married woman 
 prior to the said 13th day of April, 1897, with respect to 
 and to bind her separate property, shall bind, not only the 
 separate property which she was possessed of or entitled to 
 at the date of the contract, but also all sepai'ate property 
 which she has since accjuired or niav hereafter acciuire. II. S. U. 
 1887, c. 132, s. 8 (3, 4) ; UO Y. c. 22,' s. 3. 
 
 4. — (1). Every contract entered into by a married woman 
 on or after the 13th day of April, 1897, otherwise than as an 
 agent : 
 
 (a) Shall be deemed to be a contract entei'ed into by her 
 
 with respect to and to bind her separate property 
 whether she is or is not in fact possessed of or 
 entitled to any separate property at the time when 
 she enters into such contract, and it shall not lie 
 necessary in any proceeding to prove that she had 
 any separate property at the time when such con- 
 tract was entered into, or subsequently ; 
 
 (b) Shall bind all separate property wliich she may at the 
 
 time or thereafter possess or be entitled to ; and 
 
 (c) Shall also be enforceable by process of law against all 
 
 pi'operty which she may thereafter while discovert 
 pos.se.ss or be entitled to. 
 
 (2) Nothing in this section contained -liail render available 
 to satisfy any liability or obligation arising out of such con- 
 tract any separate jiroperty which she is i-estrained from 
 anticipating. GO V^ c. 22, s. 1. 
 
 5. — (1) Every woman married on or before the 4th day of 
 May, 1859, without any marriage contract or settlement, shall 
 and may, from and after the said day, notwithstanding her 
 coverture, have, hold and enjoy all her real estate not on or 
 before the said 4th day of May taken possession of by her 
 
 yX 
 
 CoDtracU uf 
 married 
 womeu fruui 
 13th April, 
 1897, t.> bind 
 all their Hepar- 
 ate eHtat«. 
 
 Kxcept wher« 
 roatraint nu 
 anticipation 
 exiHtH. 
 
 5(i-57V.(Imp.) 
 c. 6.<, H, 1. 
 
 A woman 
 inarriud on 
 or bcfort! 4th 
 May, \mj, 
 may iiold 
 I)erty not ( 
 reduCL'd to 
 poHxuMiiiun uf 
 her husband. 
 
 I pro- 
 ; ttieu 
 
770 
 
 Chap. 163. 
 
 PROPERTY OF MARRIED WOMEN. Sec. 5 (1). 
 
 '■4: 
 
 2 
 c 
 
 i 
 
 03 
 
 > 
 
 A woman 
 married Vx*- 
 tween 4th 
 May, 1859, 
 and 2nd March 
 1872, may hold 
 her real pro- 
 perty free 
 from the debts 
 or control of 
 her husband. 
 
 Proviso. 
 
 A woman 
 married after 
 2nd March, 
 1872, may 
 hold her real 
 projierty free 
 from any 
 eHtate or 
 claim of her 
 husband dur- 
 ing her life. 
 
 A wom.an 
 married since 
 4th May, 1859, 
 may hold her 
 personal pro- 
 perty free 
 from the debts 
 or control of 
 her husband. 
 
 Proviso. 
 
 hu.sband, by himself or his tenants, and all her personal pro- 
 perty not on or before said day reduced into the posse.ssion of 
 her liusband, whether belonging to her before marriage or in 
 any way acquired by her after marriage, free from his debts 
 and obligations contracted after tlie said 4tb day of May, and 
 from his control or disposition witiiout her consent, in as full 
 and ample a manner as if she were sola and unmarried. 
 
 (2) Every woman married Ijetween the 5th day of May, 
 18o9, and the 2nd day of March, 1872 (both inclusive), with- 
 out any marriage contract or settlement, shall and may, not- 
 withstanding lier coverture, have, hold and enjoy all her real 
 property, whether belonging to her before marriage or acquired 
 by her by inheritance, devi.se or gift, or as heir-at-law to an 
 intestate, or in any other way after marriage, free from the 
 debts and obligations of her husband, and free from his control 
 or disposition, without her consent, in as full and ample a 
 manner as if she continued sole and umnarried ; but this .sec- 
 tion shall not extend to any property received by a married 
 woman from her husband during coverture. 
 
 (3) The real estate of any woman married after the 2nd day 
 of March, 1872, whether owned V)y her at the time of her 
 marriage, or acquired in any manner during her coverture, and 
 the rents, issues and profits thereof respectively, shall, without 
 prejudice and subject to the trusts of any settlement affecting 
 the same, be held and enjoyed by her for her separate use, fi-oe 
 from any estate therein of her husband during her lifetime, 
 and from his debts ami obligations, and from any claim or 
 estate by him, as tenant by the cui'tesy ; and hei- receipts alone 
 shall be a discharge for any rents, issues and profits of the 
 same ; but nothing herein contained shall prejudice the right 
 of the husband as tenant by the curtesy in any real estate of 
 the wife which .she has not disposed of 'nnter vivos, or by will. 
 
 (4) Ever}' woman married since the 4th day of May, 1859, 
 without any marriage contract or settlement, shall and may, 
 notwithstanding her coverture, have, hold and enjoy all her 
 personal property, whether belonging to her before marriage 
 or acquired by her by inheritance, be(]uest or gift, or as next 
 of kin to an intestate, or in any other way after marriage, free 
 from the debts and obligations of her husl)and, and free from 
 his control or disposition, without her consent, in as full and 
 ample a manner as if she continued sole and unmarried ; but 
 this sub-section shall not extend to any property received by 
 a married woman from her husliand during coverture. R. S. G. 
 1887, c. 132, s. 4. 
 
 KarningH 
 of married 
 
 0. — (1) Every married woman, wJietluu* married before or 
 after the passing of this Act, shall be entitled to have and hold 
 as her separatis property, and to dispose of as her separ- 
 ate property, the wages, eari>ings, money and propei'ty, gained 
 or acquired by her in any einploj-ment, trade or occupation in 
 
Sec. 10. 
 
 PROPERTY OF MARRIED WOMEN. Chap. 163. 
 
 771 
 
 which .she is engaged or wliich sht' carrie.son, and in which her 
 liu.sband has no proprietary interest, or gained or acquired 
 by the exercise of any litel•ar}^ artistic or scientific skill. 
 
 (2) Every woman married on or after the first day of July, PioiH-i-ty of « 
 1884, shall also be entitled to have and hold and to dispose of r^pd"^;;'^";*,^^, 
 as her separate property all other real and personal property ist July, 
 belonging to her at the tin)e of marriage, or ac(|uired by or n^ Mparate''''^ 
 devolving upon her after marriage. R. S. 0. 1887, c. 132, s. 5. property. 
 
 
 7. Every woman married before the first day of July, 
 1884, shall be entitled to have and to liold and to dispose of in 
 manner aforesaid as her separate property, all real and personal 
 propei'ty, her title to which, whether vested or contingent, and 
 whether in possession, reversion, or remainder, shall accrue 
 on or after the said first day of July, including any wages 
 eai-nings, money, and property so gained or acquired by hej 
 as aforesaid. R. S. O. 1887, c. 132, s. 7. 
 
 Property 
 acquired after 
 1st July, 
 1884, by a 
 woman mar- 
 ried l)efore 
 that d;',te to be 
 held by her as 
 separate pro- 
 perty. 
 
 H. The execution of a general power by will by a married t-x „i-.tioii of 
 woman shall have the effect of making the property appointed '^^"'^*''* P^^er, 
 liable for her debts and other liabilities in the same manner as 
 her separate estate is made liable under this Act. R. S. 0. 1887, 
 c. 132,8.6. 
 
 nd 
 
 in 
 
 9. Notwithstanding that a married woman is restrained power of 
 from anticipation, the Coui't ma^^ if it thinks fit, where it p""""*^ t'^ "' 
 appears to the Court to be for her benefit, by judgment or nlarHed" 
 order, with her consent, bind her interest in any property, women. 
 
 R. S. O. 1887, C. 1 32, S. S. Imp. Act 44-45 
 
 V. c. 41, K. 39. 
 
 10. All depo.sits, all sums forming part of public stocks or As to stock, 
 funds, which on the first day of Julv, 1884, were standing in etc., to which 
 the sole name of a married woman, and all shares, stock, deben- woman is en- 
 tures, debenture stock, or other interests of or in any titled, 
 corporation, company, or public body, nuinicipal, commercial, 
 
 or otherwise, or of, or in any industrial, provident, friendly, 
 benefit, building, or loan society, which, on the first day pf 
 July, 1884, were standing in her name, shall be deemed, unless 
 and until the contrary be shewn, to be the separate property of 
 such married woman ; and the fact that any such deposit, sum 
 forming part of public stocks, funds, oi- of any shai-e, stock, 
 debenture, debenture stock, or other interest as aforesaid, is 
 standing in the sole name of a married woman, shall be 
 sufficient prinut. facie evidence that she is beneficially entitled 
 thereto for her separate use, so as to authorize and empower 
 her to receive or transfer the same, and to receive the divi- 
 dends, interests, and profits thereof, without the concurrence of 
 her husband, and to indemnify all public officers, and all 
 directors, managers, and trustees of every such corporation, 
 company, public body, or society as aforesaid, in respect thereof. 
 R. S. 0.1887. c. 182, s. 9. 
 
o 
 
 C 
 
 < 
 
 sr 
 
 5 
 
 CD 
 
 > 
 -< 
 
 772 
 
 Aa to stock, 
 etc., trano- 
 f erred, ftc. , 
 to a mar- 
 ried wuman. 
 
 Chap. 163. 
 
 PUOrEKTV t)F MAUHIEl) WOMEN. 
 
 Sec. 11. 
 
 ProviHo, 
 
 1 1. All .such particulars mentioned in the precedinj,' .section 
 which after the first day of July, 1884, were placed, or 
 traiKsferred in or into, or made to .stand, in the .sole name of 
 any married woman .shall be deemed, unlesa and until the con- 
 trary be .shewn, to be her separate property, in respect of 
 which, so far as any liability may be incident thereto, her sep- 
 arate estate shall alone be liable, whether the same shall be .so 
 expressed in the document whereby her title to the same in 
 created or certified, or in the books or register wherein her 
 title is entered or recorded or not ; Provided always, that 
 nothing in this Act shall require or authorize any corporation 
 or joint stock company to admit any married woman to be a 
 holder of any shares or stock therein to which any liability 
 may be incident contrary to the provisions of any statute, 
 charter, by-law, articles of association, or deed of settlement 
 regulating such corporation or company. R. S. O. 1887, 
 c. 182,8. 10. 
 
 iDvestmentB "5- AH the provisions hereinbefore contained as to such 
 
 in joint names particulars mentioned in .section 10, which on the fir-st day 
 
 women^and "^ July, 1884, were standing in the .sole name of a 
 
 others. married woman, or which after that time shall be placed or 
 
 transferred to or into or made to stand in the sole name of a 
 
 mariied woman, shall respectively extend and apply, so far a.s 
 
 relates to the estate, right, title, or interest of the marritjd 
 
 woman, to any of the particulars aforesaid which, on the 25fch 
 
 day of March, 1884, were standing in, or which .shall be placed, 
 
 or transferred to or into, or made to stand in, the name of 
 
 any married woman jointly with any person or persons other 
 
 than her husband. R. S. 0. 1887, c. 132, s. 11. 
 
 A» to stock, 13. It shall not be necessary for the husband of any married 
 etc., standiuK woman, in respect of her inteiest, to join in the transfer of 
 namMo'f a any such particulars named in section 10, which shall be 
 married standing in the sole name of any married woman, or in the 
 
 othere? "*" joint names of such married woman and any other person 
 
 or persons not being her husband. R. S. O. 1887, c. 132, 
 
 s 12. 
 
 Fraudulent 
 investments 
 with money 
 of husband. 
 
 14. If any investment in any of the particulars .set forth in 
 section 10 slmll have been made by a married woman by means 
 of moneys of her husband, without his consent, the Court may, 
 upon an application under section 19 of this Act, order such 
 investment, and the dividends thereof, or any part thereof, to 
 be respectively transferred and paid to the husband ; and 
 nothing in this Act contained shall give validity as against 
 creditors of the husband, to any gift, by a husband to his wife, 
 of any property, in fraud of his creditors, or to any deposit or 
 other investment of moneys of the husband made by or in the 
 name of his wife in fraud of his creditors ; but any property 
 
married 
 ansfer of 
 shall be 
 r in the 
 r person 
 , c. 132, 
 
 Sec. 17. 
 
 PHOPERTY OF MARRIED WOMEN. 
 
 Chaj.. 163. 
 
 773 
 
 or moneys so deposited or invested may be followed as if this 
 Act had not been pa.ssed. R. S. O. 1««7, c. 132, s. 13. 
 
 15. Every woman, whether married before or after this Act, Remodies of 
 shall have in her own name against ail persons whomsoever, ^'",n"n for 
 including her husband, the same remedies for the protection protection and 
 and security of her own separate property, as if such property separate' 
 belonged to her as a feme sole, but, except as aforesaid, no bus- property. 
 band or wife shall be entitled to sue the other for a tort. In TortH as be- 
 any proceeding under this section it shall be s\ifficient to allege band" and 
 such property to be her property ; and in any proceeding under wife, 
 this section a hu.sband and wife shall be competent to give evid- 
 ence against each other. R. S. O. 1887, c. 132, s. 14. 
 
 Itt. A woman after her marriage shall continue to be liable Wife's ante- 
 in respect and to the extent of her separate property for all anS^liabifitJw. 
 debts contracted, and all contracts entered into or wrongs I'om- 
 mitted by her before her marriage; and she may be sued for 
 any such debt and for any liability in damages or otherwise 
 (inder any such ccmtract, or in respect of any such wrong ; and 
 all sums recovered against her in respect thereof, or for any 
 costs relating thereto, shall be payable out of her separate pro- 
 perty ; and, as between her and her husband, unless there be 
 any contract between them to the contrary, her separate pro- 
 perty shall be deemed to be primarily liable for all such debts, 
 contracts or wrongs, and for all damages or costs recovered in 
 respect thereof: Provided always, that nothing in this Act Proviso. 
 shall operate to increase or diminish the liability of any 
 woman married before the commencement of this Act for any 
 such debt, contract or wrong, as aforesaid. R. S. 0. 1887, 
 c. 132, s. 15. 
 
 IT. A husband shall be liable for the debts of his wife con- Husband to be 
 tracted, and for all contracts entered into and wrongs comnut- liable for his 
 ted by her, before marriage, and for wi'ongs committed by her ^}(fothe^r 
 after marriage, to the extent of all property whatsoever be- HabilitieH to a 
 longing to his wife which he shall have ac(]uired or become''^'"**'"®''*'"'*' 
 entitled to from oi through his wife, after deducting therefrom 
 any payments made by him, and any sums for which judg- 
 ment may have been bono- fide recovered against hiui in any 
 legal proceeding, in re.spect of any such debts, contracts or 
 wrongs, for or in respect of which his wife is liable ; but he 
 shall not be liable for the same any further or otherwise ; and 
 any Court in which a husband shall be sued for any such debt 
 or liability shall have power to direct any inquiry or proceed- 
 ings which it may think proper for the purpose of ascertaining 
 the nature, amount or value of such property : Provided always. Proviso, 
 that nothing in this Act contained shall operate to increase or 
 diminish the liability of any husband married before the first 
 day of July, 1884, for or in respect of any such debt or 
 other liability of his wife as aforesaid. R S. O. 1887, c. 132, 
 8. 16. 
 
774 
 
 Chap. 163. IMIOI'KRTY OK MAIlRIEl) WOMEN. 
 
 S»'C. 18. 
 
 C 
 
 < 
 r 
 
 if 
 
 r 
 > 
 
 30 
 
 ^"'*f '°'', ... IS. A huslHvnd and wife may he jointly .sued in respect of 
 
 tie,. any such debt or other liability (whether for contract or for 
 
 any wrong) contracted or incurred by the wif(! as aforesaid 
 if the plaintiff in the action .shall seek to establish his claim 
 either wholly or in part, against both of them ; and if in any 
 such action, or in any action l)rought in respect of any such 
 debt or liability against the husband alone, it is not found that 
 the lmsl)and is liable in respect of any property of the wife so 
 iccpiired by him or to which he .sliall have become .<o entitled 
 s aforesaid, he shall have judgment for his co.sts of defence, 
 whatever may be the result of the action against the wife 
 if jointly sued with him : and in any such action against 
 husband and wife jointly, if it appears that the husband is 
 liable for the debt or damages recovered, or any part thereof, 
 the judgment to the extent of tlie amount for which the hus- 
 band is liable shall iie a joint judgment against the husband 
 personally and against the wife as to her separate property ; 
 and as to the residue, if any, of such debt and damages, the 
 judgment shall be a separate judgment against the wife as to 
 "her separate property only. R.. S. O. 1887, c. 182, s. 17. 
 
 Questiona ' •^- — (0 ^^^ *''".>' 'luestictn between husband and wife as to the 
 
 between hug- title to or possession of property, either ])arty, or any corpora- 
 ^^ p°pp^,ty tion, company, public body, or society in whose books any 
 majrbedeoid- stocks, funds or shares of either party are standing, may apply 
 ed in a sum- |^y summons or otherwise, in a summary way, to a Judge of 
 the High Court, or (at the option of the applicant, 
 irrespectively of the value of the propeity in dispute) to the 
 Judge of the County Court of the county in which either party 
 resides, and the Judge may make such order with respect to 
 the proj)erty in dispute, and as to the costs of and conseipient 
 on the application, as he thinks fit ; or may direct such appli- 
 cation to stand over from time to time, and any in(pury touch- 
 ing the matters in question to be made in such manner as he 
 shall think fit. 
 
 (2) Any order of a Judge of the High Court, made under the 
 provisions of this section, shall be subject to appeal in the same 
 way as an order made by the same Judge in an action in the said 
 Court. 
 
 (3) Any order of a County Court, under the provisions of 
 this section, shall be subject to appeal in the same way as any 
 other order made by the same Court. 
 
 (4) All proceedings in a County Court, under this section, in 
 which, by reason of the character or value of the property in 
 dispute, such Court would not have had jurisdiction if this 
 Act had not passed, may, at the option of the defendant or 
 respondent to such proceedings, be removed as of right into 
 the High Court, by cei-tiorari, or otherwi,se, as may be 
 prescribed by the Rules of Court ; but any order made or act 
 done in the course of the proceedings, prior to the removal, 
 
 mary way. 
 
^. 18. 
 
 Sec. 22^1). I'liorKKTY of mauhikd \v(»mkn. Chap. l(j:{. 
 
 773 
 
 shall hv valid, unless order is made to the contrary liv the High 
 (^ourt. 
 
 (5) Tlie Judj^e of the High Court, or County Court, if either 
 party .so reijueHt, may hear any such application in his private 
 room. 
 
 (()) Any such corporation, company, public body, or society, 
 as afor«'said, shall, in the matter of any such application, for 
 the purposes of costs or otherwise, be treated jus a stakeholder 
 only. K. S. O. 1«.S7. c. l:{2, s. IS. 
 
 *50. A married woman, who is an executrix or iMhninistra- Married 
 trix, alone or jointly with any other person or persons, of the rxb^'utriVor" 
 estate of any decea.sed per.son, or a trustee alone or jointly as truHtee. 
 af'oresaiil, of propeity subject to any trust, may sue or be sued, 
 and may transfer or join in transferrini,s in that character, any 
 such particulars as are mentioned in section 10, with(mt her hus- 
 band, as if she were a feme sole. II. S. O. 1S.S7, e. lol', s. 19. 
 
 'tl. Nothing in this Act contained shall interfere with or Saying of ex- 
 atiect any .settlement oi- agreement for a settlement made or to J^enfg'and 
 be made, whether bet\)re or after marriage, respecting the the power to 
 property of any nuuried woniiin, or shall interfeie with or ^^JigJ^g^"^" 
 render inoperative any restriction against anticipation at pre- 
 sent attached or to be hei'eafter attached to the enjoyment of 
 any property or income by a woman under any settlement, 
 agreement for a settlement, will, or other instrument ; but 
 no restriction against anticipation contained in any settlement 
 or agreement for a settlement of a woman's own property to be 
 made or entered into by herself shall have any validity against 
 debts contracted by lier before marriage, and no .settlement 
 or agreement for a settlement shall have any greater force or 
 validity against creditors of such wonuvn than a like settle- 
 ment or agreement for a settlement made or entered into by a 
 man svould have against his creditor.s. 11. S. O. 1887, c. Ki2, 
 s. 20. 
 
 'i'i. — (1) Any married Avoman having a <lecree for alimony 
 against her husband, or any married woman who lives a|)art 
 from her husl)and, having been obliged to leave him from 
 cruelty, or other cause which by law justifies her leaving him 
 and renders him liable for her support, or any married woman 
 whose husbantl is a lunatic either with or without lucid intervals, 
 or any married woman whose husbanrl is undergoing sentence of 
 impriscmment in the Provincial Penitentiary or in any gaol 
 for a criminal offence, oi- any married woman whose husband 
 from habitual drind<eniiess, profligacy, or other cause, neglects 
 or refuses to provide for her suppcu't and that of his family, or 
 any married woman whose husband has never been in this 
 Province, oi' any married woman who is deserted or abandoned 
 by her husband, may obtain an order of protection, entitling 
 her, notwithstanding her coverture, to have and to enjoy all the 
 
 Tn what caaea 
 a married 
 woman may 
 obtain an or- 
 der of protec- 
 tion for the 
 earnings of 
 her minor 
 children. 
 
776 
 
 Chap. 163. rjiopERTY of married women. Sec. 22 (1). 
 
 < 
 
 
 '^ 
 
 C 
 
 < 
 
 r 
 
 % 
 
 V. 
 
 £ 
 
 CD 
 
 > 
 
 Purport md oaminf^s of her minor cliiMien, and any acqiii.sitions thL>retVom, 
 order. ""^ ' f''t''f fi'oin the dohts and o])li<jation.s ot her husband and from 
 his control or dis|)o.>:titioii, untl without his consent, in as full 
 and ample a manner as if she continued sole anrl unmarried. 
 
 How and by (2) The married woman may at any time «pply, or the 
 Tir' diRoharir- ^'"''^^"•"'l ^r any of the liusband's creditors may at any time, on 
 inK protectidn notice to tlie married wonuin, apply for the di.seliarge of the 
 may l« ob- order of protection ; and if an order for such discharge is made 
 the .same may he registered or tiled like tlie original order. 
 
 Either order (.S) Eitlior order may i.ssue in duplicate, and where the 
 dirpiicate" marrieil woman resides in a city or town in which there is a 
 By whom'to bo Police Magistrate, the order for protection or any order di.s- 
 Mid'towns''** charging the same shall he made hy the Police Magistrate, and 
 ReKiHtration. shall be registered in the registry otHce of the registiy 
 division in which the city or town is situate. 
 
 By whom 
 order made 
 rlBewhere 
 than in city 
 or town. 
 
 (4) Whei'e the married woman does not reside in a city or 
 town in which there is a Police Magistrate, the order shall be 
 made by the Judge or one of the Judges, or the acting or 
 Deputy Judge of the Division Courts or a Division Court of 
 the county in which the married woman resides ; and instead 
 of being registered, .shall be filed for public inspection with the 
 Clerk of the Division Court of the division within which the 
 married woman resides. 
 
 Hearinff may (5) The hearing of an application for an order of protection, 
 
 private" "' ^'^ ^^^ ^^ order discharging the same may be public or pi'ivate, 
 
 at the discretion of the Judge or Police Magistrate. 
 
 Order not to (6) The order for protection shall have no effect until it is 
 
 Il-lTit?.^.' registered or filed, and the registrar or clerk shall immediatelv 
 nntii regiB- ".. ' o , ...- 
 
 tered or filed, on receiving the order endorse thereon the day of registering 
 Evidence of or filing the .same ; and a certificate of the registering or filing 
 on er, e c. ^^^ date, signed by the registrar or clerk for the time being, 
 shall bo prima facie evidence of such registering or filing and 
 date ; and a copy of the order which is registered or filed certi- 
 fied under the hand of the Registrar or Clerk to Vie a true copy 
 thereof, .shall bo sufficient prima, facie evidence of the order 
 without proof of the signature of the Registrar or Clerk, and 
 without further proof of the order itself, or of the making or 
 validity thereof. 
 
 From what (7) The order for discharging an order of protection shall 
 
 dMiarRing**' "*^^ ^" ^"^ ^^^ ^® retroactive, but shall take effect from the 
 
 protection time it is made, and the order for protection shall protect the 
 
 "ffwt**''* earnings of the minor children of the married woman until an 
 
 order is made discharging such order of protection, and the 
 
 married woman shall continue to hold and enjoy to her separate 
 
 use whatever, during the interval between the registering or 
 
 filing of the order of protection and the making of the order 
 
 discharging the same, she may have acquired by the earnings 
 
 , of her minor children. R. S.'O. 1887, c. 132, s. 21. 
 
Swr. 24. 
 
 PROPEKTY OK MAURIKn WOMEN. ('Imp. H')',\. 
 
 ITi 
 
 rctVoin, 
 il from 
 as full 
 •ricM. 
 
 or the 
 ime, on 
 
 of tlie 
 is made 
 ilor. 
 
 t»\. tor the niirposo.s of thi.s Act the let;al personal ropre- '^««»' 
 Hentiitive of any niiirrieii woman .shall, in respect or her .separ- nf married 
 ate estate, have the same; r'lLjlits and liabilities and he snhject woman, 
 to the same jurisdiction as she would have or li<' if she were 
 living. R. S. O. 1887, c. l.'}2, s. 22. 
 
 554. This Act shall not be c(mstnied to deprive a womiui Married 
 married prior to the commenccnnent of The Mdvr'ied Witmenn "^"t!»Vrior to 
 Pi'iipcitif Act, IHSJf, of any rij^ht or privilefj^e which she hail tut July, 1884, 
 at th(! time of the commencement of that Act, or wouhl after- not atfect^J. 
 wards have had if that Act had not been passed. II. S. 0. 1887, '^ ^- "■ ^"• 
 c. Vil, s. 24. 
 
 • 
 
*.v 
 
 778 
 
 PUOPERTY or MAl'^IKM WOMEN. 
 
 NOTES. 
 
 c 
 
 < 
 
 r 
 
 re* 
 ^- 
 
 U. 
 
 03 
 
 History. .\l lonni-.on law, a IulsImukI liecaiiif ciititlt-d to it'coivc llio rents 
 and profits of his wife's real estate (luriny their joint lives, and to a ixissihlo 
 estate '■>' the curtesy, and lie i)eeftmo al)aolutely entitled to all hei' |)ei-.s(inal 
 property in possession, and tr all her ehosos in action, if lie reduced them to 
 possession during his life. He was also entitled to lier chattels real I'nd ha<l 
 full power to sell and convi'y them. If the wife piedecea.sed the L.isliand. he 
 was entitled, as her adniinistratoi', to reduce into possession any choses in 
 action not theretofore recovered, and, williout adniinistiiition, to alien any of 
 lier chattels leal for liis own htiu^fit ; He Hellamy, Klder v. I'earson 
 (1SS3) "25 Ch. I). Ol'O. lint any ciioses in action not reduce<l liy the 
 hushand into possession, lielonge<l to the wife smviving him ; see notes t^) 
 H(irns!)y v. Lee ( ISl(i) 2 Madd. l(i, 2 W. * T. L. (,'. <K)7. IJuteciuity at a coin- 
 paritively early date, prol)alply about KifiO, recognized the separate existence 
 of a niairied woman as regards proj)e!ty given to or settled upon her for her 
 separate use. In Hulnie v. Tenant (1778) 1 ISro. C. C. lt>, 2 \V. .t T. L. ('. 
 5H(i, Lord ThurloN thought that the interpositio.i of tiustecs was necessary, 
 foi' otherwise tl'.ere couhl l)e no separate i)roperty ; hut it has long since heeii 
 i-stal)lished that the intenuion of tiie testatoi- or settlor will he cHcctuated 
 though no trustees are a))])ointed, and that the wife's intt^rest will he protected 
 l)V the convers'dii of the husl)and into a trustee for hi-r ; Hcniu't v. Davis 
 (i7-.'t) ti W Wins. .Sl() ; N'ewlands v. I'aynler (183!)) 10 Sim. .•{77, 4 Myl. k r. 
 408 ; '1 W. & T. L. ('. .■)4.") ; and this is so even when tlie marriage took placi- 
 in a foreign country: Kx parte Silieth. Re iSihctli (I8S.5I 14 (,». H. I). 417. 
 With the creation of the senaratc u^e, there also arose the cai)a<!ty to con 
 tract. Kid sonietine it was ([uestionahlehov.' far the general persoruil engage- 
 ments of a murricil woman slioidd he exe<!Uled out of her scpaiate propi-rtv, 
 hut as early as Hulme c. Tenant (177S) I Bro. (,'. V. Hi, •_' W. dt: T. I. < . ."•.•«), 
 the result of the cases was stated to he, that the trustee was ohliged to apply 
 personal estate. I'ld rents and profits wiuM) they arose, to the satisfacti in of 
 sudi general engagements. Over pioperty settled to the .separate use of a 
 nuirried woman, slie had a disj)c>sing power unless restraiiu'd friun anti(n|)ation ; 
 Taylor i. .Meads (ISd,")) 4 l)e(i. .1. k S. .">!>7. This resu. "iit on anticipation 
 was for the purpose of si'curing the married w )innn against the inlliu'iivc and 
 control of her hushand, hy providisig that the wife should not hav<!))ower to 
 anticipate or alieiiiile her se|)arate pfipsrly. Su<'h a tett<'r upon alicualion 
 was altiigetl'.er ic)nignant to the principles of the connnon law, the general 
 rule Ijeing that the power of alienation is a necessary and iiisi paralilc inciilent 
 to ownership of proj)eity ; .Moore v. Jackson ( 1.S<W)'-2-i S. C. It. -210, •_'I7. It 
 is howevci' \alid when annexed to a si jiaratiMise ; Haggctl v. Meux(IS44) I 
 Coll. l:iS, I I'll. (i27 : Re .Sykes (1801) 2 .]. k H. 41."..' liy various statutes 
 conimencini,' wil li 22 Vict. c. 84 ((1 S. L'. C e. 73) the docti inc of separate 
 i^.se has heen extended, and |)ropei'ty whiith is not hy any deed oi- will settled 
 to the separate 'ise of a mariied wonia'i, is, hy force of the enaclments, now 
 consolidated ii\ R. S. (). c. Mi.S, 'egislatiiely settled upon her to such use. It 
 is lu) longer necessary, as was formerly the case, either to find a trustee! to not 
 for he?', or if tli.'rc he no trustee, to declare the hushanil to he trustee for her ; 
 Re Harknes.1 and A!l.so|)p (l8!Mi) 2 ("h. XiX, 302. If personal chatties are con- 
 veyed to a trustee for the sej)arate u.se of a married woman, and jjos.session 
 thereof is deli veied to her. she hecomes clothed with the legal title: per Pat- 
 terson. .I.,\., ("onnell v. Mickok (IS8S) I.". \. R. .".IH. ,Vi7. 
 
 Epochs in Legislation. To .iscertain precisely (he rights of a nuiri icd woman 
 to property not settleil to her separate use, hut to wliat may he called statu- 
 tory separate ])roperty, am) to deterniiiu' ihe extent of a married woman's 
 liahility, it is lu^ccssary to eni|uire the date of the marriage and the date of 
 the ae(|uisition of tin- propcrtv. Theic are five epochs in the Ontario legisla- 
 tion all'ecting her rigiits and liahilitii's : 
 
 (I) Before 4tli May, iSrill. 
 
 {•>) Retweeii Tith May. ISo!), and _'nd Nhoch, 1S72. 
 
 (3) Between 3id .March, IS72, ami 3lsl Decemlicr, 1877. 
 
 (4) Hetween 1st .Jainuiry. 1,878, and 1st duly. ISH4. 
 (/)) After 13th .\pril. 1S!»7. 
 
PROPERTY OF MARRIED WOMEN 
 
 779 
 
 Wbat is Separate Estate? iSepurate estate is real )r |)ern()nrtl property, in- 
 •^.ihuling elioses in action and eliattols real, held hy a married woman, or hy 
 trjistees, for her separate use, free from all marital rigiits of the husl)and, and 
 over which he I is no control or right of interference or disposition. 
 
 The doctrines ol courts of e((uit3' as regards estates settled to tiie separate 
 use of married women, either through the inter\ 'intion (>f an express trustee, 
 or witliout a trustee iiavo no heai'ing upcn statutory sepai'ate property. So far 
 from elucidating tiie acts of the legislature, they rather tend to eml)arrass us 
 ill performing that task, inasmuch as tiiej' present false and misleading analo- 
 gies : per Strong, C. .T., Moore v. .Jackson (1893) '^2 S. C. U., "ilT. 
 
 Tin? separate use is an incident of and lasts oidy during coverture ; Re Ijim- 
 l>ert"s Kstate, Stanton V. I.aml)ert (IS88) .S!) Cii. I).,()2(i; Standard Hank v. 
 Uoulton ( 1S78) 3 A. R. 9.S. While discovert, tiie property is not se[)arat<? 
 estate ; Mvles v. Burton (1884) 14 L. R. Ir. 2.")8 ; hut on le-marriage it liecomes 
 separate c-^tate ag,.iii ; Tullet v. Ainist. ng (18H8) 1 Beav. 1. 
 
 Express Settlement for Separate Use. Real estate conveyed or devised to a 
 married woman or to trustees for her separate use in fee ; Taylor v. Meads 
 (186")) 4 lleO. .1. it S. r.!»7 : or in tail ; Cooper v. Macdonahl (1877) 7 Cii. D. 
 •288 : is .separate estate subject to tiie etiuitahle doctrines upon that suhjeet. 
 So is property lield l>y a married woman when there was an agree inent with 
 her husltand liefoie marriage tliat all ]>roperty aecpiired liy her should he 
 separate estate; Sanders v. Malsburg (1H82) 1 (). R. 178; so is real estate 
 ccmveyed to a married woman f<ir her sole use and lienefit ; Dame v. Slater 
 (18!H)'_M (). R. .•i7.">. or in lieu of alimonv ; Adams v. Loomis (187.5) "i-i <!r. !)9, 
 '24 (ir. •24-2, lie Konkle (1880) 14 0. R. \M. Vroiierty conveyed hv a hushand 
 to liis wife for her .sole use ; Massev v. Rowen (18()9) L. R. '4 H. \.. "288, '297 ; 
 Totten v. Bowen (1S82)8 A. R. (i02; Kent v. Kent (1892) 19 A. I!. :i.")2, or for 
 " her own proper use and henetit"; Surmaii v. Wiiarton (1891) 1 (i. B. 491 ; 
 is separate estate. Property over whicli a married worimii lias a general power 
 of a|)poiiitement hy deed, writing or will, wlietlier exercised or not; .roimson 
 V. (Jalhigher (18(il J 3 I)e(!. V. and .1. 494 ; London Chartered Bank of .Austra- 
 lia v. Lampriere (187.'1) L. R. 4 P. ('. ri7"2, ,'>'.)'>, is also separate estate ami liable 
 for u m.iiried Monian's del>ts after lier death except against per.-ions entitled in 
 def.udt of a])pointmeTit, unless they are heirs, executors or administiators ; 
 l)ut it cjinnot lie touched during her lifetime; Kx ))arte (iilchrist, Re Armstrong 
 (1886) 17 g. B. !» iV'l ; Cordon v. Warren (1897) '24 A. R. 44. The wife's 
 representative-; .; 111. iv expressly made subject to the same lialiili Jes as she 
 would have bei o living; s. •2.'1. By s. 8 of the Act tiie execution of a general 
 power by •.vill has the etVci t of making the proper apiiointed lialile for delits 
 ai.d other lial<ililies. Savings from |»ro|)erty puiiliascd witli tlie iiroduct of 
 separate estate ))artake of the same ciiaracter as tli.' propeity fii>m whicli 
 tliev were derived; Horner v. Kerr (188(1) (> A. R. .10 ; Pike v. Pit/.gibbon 
 (188t»)(j L. R. Ir. 48(5; Trotter v. Chambers ;188;{) '2 (). R. ol.'i ; Duncan v. 
 Cashin ( 187.T) L. It. 10 C. P. 't'A. If a liusbaiKl allows iiis v.ife to make a 
 profit out of .sonic department of the household, any savings ;;''e her separate 
 propertv ; Sianning v. Stvlc (1734) 4 P. Wins. 'Xi~ ; Luniley v. 'I'iiiims (187.3) 
 '28 L. T'. 008; Mews v. mV.ws (I8r)'2) 1.") Beav, ,5'29, but see Barrack v McCul- 
 locli (I8,")(i) 3 K. & .1. 1 U). Jewellciv given ly tlie luisliand to tlie wife maybe 
 her sepanitc propertv; AV S.liolicl'd and wife 1 1891) 7 T. L. R. 0'> ; (i4 I.". T. 
 838. 
 
 Statutory Separate Prop«rty. By C. S. U. C. e. 73 the provisions now em- 
 bodied ill s. .")(!) (2) (4) were enacted. The canon of construction carl\ laid 
 down wiMi regard to tliose provisions was stated by Draper, C. .1. in Kiicmar 
 v. (ilas.s (1801 ) 10 C. P. 47o in tlicse words : " K\cr\ provision for tliese pur- 
 poses is ad j<i. it iire from the common law, and so far as is necestsary to give 
 these iirovisions full eti'eit, we must hold the common law is superseded l>y 
 them. But it is against priiiciiile and authority to infringe any further than 
 is necessary for obtaining the full measure of relief lU' lienetit the act was in- 
 tended to give." This iirinciple was adopted and acted u|)on in Rojalt-ana- 
 dian Bank v. Mitchell (18(i8) i4(;r.4l2; Wright v. (iarden ( 1809) '28 U.V. R. 
 (109; Balsam v. Robinson (1809) 19 C. P. '203 ; Mitchell v. Weir (I87'2) 19 <Jr. 
 ,'5t)8 : I.JIWSOI1 V. Liiidlaw (1878) 3 A. R. 77, and has lieen recently aliirnied by 
 the Supreme Court in .Moore v. .Jackson (1893) 'Ht S. V, R. 210. It was .settled 
 by the earlier cases just cited that the separate estat'3 created by the Statuti 
 was not analogous to the eiiuitable settleil property of a married woman settled 
 to her separate use either in respect of the power of disposition m in respect 
 of its liability for the debts of the owner ; see Moore \. Jackson (1893) '2*2 S. 
 
780 
 
 PROPERTY OK MARRIED WOMEN. 
 
 O 
 
 c 
 
 < 
 
 03 
 X 
 
 ('. R. at p 214. Such supaiate proi)erty was not liable tor thr <lul)t.s of .i 
 married woman ; Royal Canailiaii Hank v. Mitchell (18(58) 14 dr. 412; Wright 
 T. Harden (I«<>9) ->^ U. C. H, tiO!) ; nor <lid tli(! wife have the absolute control 
 and (liKjiosition thereover without the hiisband's conKent : Kmiick v. Sullivan 
 (I8()r); 2") U. V. K. 1(1") : 15al«ani v. Robin.son (18(i!») 111 ('. I', ^(i.'t ; but see as to 
 jiersonal pro])ert\' ; Law.son v. fjaidlaw (187S) 3 A. U. 77, !M ; noi' coidd it be 
 disposed of by will otiierwise than as provided bv t lie statute, i. e., among 
 the parties now mentioned in K. S. (). (18<)7) e. 12S, s. (i, see mi/f pp. (i3,5, G4.5. 
 It could however be seized and sold on an execution against her husl)andfor her 
 torts; C. S. L'. ('. e. 7.', s. ;{. 'Vhv husband was not deprived of his tenancy by 
 the curtesy in the wife's lands : ih. s. 4, but such estate was not subject to the 
 husband's dc^bts rluring the wife's life ; ili. s. 13; nor to his interference-; Cam- 
 eron V. Walker (IH!M») !<» O. H. 212. The .separate projierty was liable for the 
 wife's debts before niarriagc; ; //(. s. 14 ; and a husband marrying after 4th May 
 IS.Olt, was not liable foi' the wife's ante-nu|)tial delits to a greater extent than 
 (he value of his interest in her separate ])ropertv ; ih. s. ].~>. I'er.sonal eariiiugs 
 •f the wife duiing coverture weie not s(!parate i)i'operly unless she obtained 
 an order for |)rotection thereof ; ih. ss. o-PJ. Re.il [iroperty, not comprised in 
 a settlement for her separate use, aeepiired befoie Ist July, 1SS4, by a woman 
 married before 3rd March. 1872, is still subject to tlii" tenan<:y of tiie cintesy 
 of the husband so that she cannot, without an older under R. S. (J. c. Km, 
 convey a title thereto free from that estate of the husband ; Wvlie v. Framp- 
 toi: (i«8!t) 17 O. R. T)!"), but if acipiired between 3rd Ma'rch, 1872, and 
 3Ist December, 1877, she may jierhaps disjiose th(Ueof free from that 
 estate. Su(-h property was neveitiieless se|)arate |)ro]ieity under the 
 Statute and as such was lialile for her debt.'^ and ei.gagemeiits : NIoore v. .lack- 
 son (1803) 22 S. (.". R. 210. The ease of Dcmglas v. Hutchinson ( 188.-)) 12 A. 
 H. 1 1(1 in so far as it lieM that jiroperty of the wife in order to be liable for 
 debts as separate estate nnist be such as may be ilisjxi.sed of by the wife with- 
 out the c()ncurreiicc of thi' liusband must be treated as overruled ; see 22 S. ('. 
 
 R. 2:«). 
 
 Important cli.ingcs in tlit> law respecting statutory separate estate were 
 effected by the act of 1872 (3.") V. c. l(i). The jjrincipal changes were : — 
 
 (</) Real estate held by her was to be for her separate >ise, free from any 
 estate of the husband during his lifetime and from his delits and obligations 
 and from any <'laini or cst.ite bv him as tenant bv the curtesy ; s. I ; Roustead 
 V. Whitinore (187.-)) 22 (.r. 222: Furness v. >iitcliell (I87!t) 3 A. R. .-)!(): 
 Hry.son v. Ontario and (,>uebe(- Ry. Co. (188")) 8 (). R. 38l(. This section is now 
 embodied in s. /) (3). 
 
 (h) Personal earnings of the wife wire ma<Ie sc para(e estate without any 
 order of protection ; s. 7. 
 
 {(■) The husband was relii'Vcd from liability for his wifi''s aiite-nu|itial debts 
 and for debts of her sejiaratc business and upon her contracts ; s. 8. 
 
 ((/) It was |iro\ idcd that ",iny inairied woniun may be sued or proceeded 
 against separately from her husband in respect of any of her separate debts, 
 engagements, contracts or torts ns if she were unmarried ; s. !). 
 
 The section conferring the se))ai'ate use absolutely upon the wife was not 
 originally conlined l<i cases where the marriage took jilacc after the passing of 
 (he act, 'liut in Dingman v. Austin (IS73) ."W i;.C.l;. Mtdand .McCrcady v. Ilig 
 gins (1874) 24 C. 1*. 2.33 it was said tiiat tiie section was not retrospective. 
 The view which idtimalely prevailed, however, was tliat the Act did not take 
 away the rights of .i hiisbaii.l aci|uiied before the act, but that as to all lands 
 acquired after the act, the separalc use attached free from aiij' estate or ten- 
 ancy bv the curtesy of the husband : .Adams v Loomis ( I87()) 24 (!r. 242 ; Fur- 
 ness V." Mitchell (18711) 3 A. R. ."iKI. but it m s settled in the latter ease that 
 the act had not deprivfd \hv. husband <if h!.. 'enancy by the curtesy in lands 
 not dispos<'d of 1)_\ the wife iiil<r i-iro'< or by «ill, a \ iew which, prioi' to the 
 <lecisioii, had been atliinied by the legislature : 411 \". c. 7, .Sc lied. A (la(i)and 
 see Hojie v. Ho|ie (1892) 2 Ch. 33(). Cpon the revision of the Statutes in 1877 
 the section in ipiestioii of tin act of 1872 was expicssly i-onlincfl to cases where 
 the n-arriage took place after the passing of the act ; R.S.O. (1877) <'. 12-") s. 4 
 atid as to lands ac(|uired between .'ils' December. 1877, and 1st .lulv, 1884, the 
 husbands of woiikmi married before 3rd March, 1872, cannot be ileprive(l by 
 the c( nveyanee or will of their wives of their tenancy by the curtesy. 
 
 In 1884 the Knglish Married Women's Property Act 1882 (4,-i & 4(t V. e 7.'i), 
 whicii finins the basis of t lie present act, was in the main adopted. Tin; pro 
 
PUOPKJITY OK MAHlMEl) WOMKN. 
 
 rsi 
 
 visioiiH now in force so far as tliey afTi'ct the ([uestion as to what is sop.irato 
 oatato may be thus siimmarizeil : - 
 
 (a) A marrieil woman is caimlile of ac(|uirin},', lioMinij; ami fliaj-Ooing by will 
 or otiierwise of th(; legal estate in real and personal property. 
 
 (b) Personal earnings are separate estate. 
 
 (c) All property of a woman married on or after 1st .hily. ISSt, is separate 
 eHtate. 
 
 (d) All proi)erty of a married woman marriiul before 1st July, 1S81, is se|)ar- 
 ate estate, if her title, whether vesteil or contingent, and whether in pos.session, 
 reversion or remainder, aciiued after that date. 
 
 (e) The act permits the l/'ourt, with her con.sent, to bind scparati; proj>erty 
 which she i.s restrained from anticipating. 
 
 Alimony. Alimony is not separate estate ; Anderson v. Ladv Ilav |IH!)1) 7 
 T.L.H. U.S. 
 
 Effect of Act of 1884. All propiMty aci|uired after IHS4 by a married woman 
 whenever married, is separate estate. Kxcept as to married womci- married 
 after '2nd March, 1H7'2, the title nnist first accrue oi\ or aftei- 1st .hily, 1S84. 
 Therefore, pi'o})erty to which such a married woman was contingently entitled 
 before that date is not se|)arate estate ; He Adame's TruHts (1S85) ,'>i L..T. Ch. 
 878 ; Ke Trench's Trusts (188.")) L.U. 1.") Ii'. 4(l() ; nor is projierty in whic;li sho 
 had a veste<l remainder; Ke Tucker. Kmanuel v. Parlit (1885) r>4 L..F. Ch. 874; 
 Reid V. Keid (188(i):{l Ch. 1). 402 ; Re Hobson, Webster v. Richar.ls (1886).l,') 
 L. .1. t'h. ;ilM>. \\k> a mere ■■<))<■■< ■iiK'cix.-.iniiis is not title, and tlicn'fon;, where 
 a married woman became entitleil after 1884. to a share in pii>|icrty as one of 
 a class of po.ssiblc next to kin midcr a .settlement made bcfoii^ the act, her 
 share was held to be separate estate ; Re Parsons, .Stockley v. I'arsoTis 
 (l^iKI) 4."> Ch. I). .")!, in which case Re lieaupre's Tru.sts (1888) 21 L.R. Ir. 
 .■W7, which had decided tlie contrary; was dissented from. * 
 
 The act of 1S84 (s. 1^2), si(^ now R.H.O. c. U!.' s. li lii/ni, dispensed with the 
 necessity of the concurrence of the husband in the wife's conveyaiu.i! of her 
 projjcrty, an<l it was held in re (liacey and Toronto Real Kstate C'o. (1888) ItJ 
 (). R. 22(). that site could make; a valid conveyance of a vested remainder, 
 althougii she was married befoie 1872, an<l her title accrued before 1884, and 
 her husband would therefore have been entitled to an estate by the curte.sy, if 
 
 tir 
 
 had I 
 
 leeii a seism ni possession. 
 
 Personal Earnings. The Ontario Act ditl'ers from the lOnglish Act, and from 
 the legislation prior to 1887 as to per.sonal earnings. The Knglish Act makes 
 personal earnings, sei)ariite estate, if gainc<l or ac<juircd by the married woman 
 in any employment, tra<le or occupation in whicli she i." engagiMl, "or which 
 she ciiirics on separately from her husband," oi' by tli<; exercise of any liteiary, 
 artistic oi- scientilie skill : 4.") A 4ti Vict, c. ~'>. ss. 2, ."). Tlie test under that 
 Act is whcthei' she is trading indcpeinlcntly of her husliand, aM<l wit liout bcMiig 
 accountable to liim for ilu! profits; Re Hdwaids, K\ ))aile Harvey (18il.")) 4:5 W. 
 H. ;'»((!(. These sections were ri'-enaeted in Ontario in tiie Ac't of 1884, but in 
 1887 (oti Vict. c. 7, H. 22) the words "and in whicli her liusl)and has no jiro 
 prietarv interest " were substituted for the words "or which she carries on 
 s('piiratcly tiom her husband." This is now the law ; see s. (i (1). 'j'hi^ tascH 
 decided under the former Act on the subject of separate trading have little or 
 no bearing on the law as it now exists ; per Osier, .1. A., (Jooney v. .Sheppard 
 (I8!)."t) 2;{ A. R. 4. The section puts it lieyoiul (piestion that the earnings are 
 septirate estate; Robertson v. Laroipie (188'.>), 18 0. R. 4t)!t. A woman who 
 ownsa farm may,ifsli(^ pleases, maintain her husbaml uiioii it in idleness, or h<! 
 may devote his whoh- time and services in managing and working it without any 
 pecuniary n^turii whatever, and the |)rofits will be the wife's separate ))ro|)erty; 
 Baby V. Ross (I8!»2) 14 I'.R. 441) ; Cooney v. Sheppanl (18<tr)) 2:i A.R. 4. The 
 expression " proprietary interest" is not em|)loyed in any teclinical or limitotl 
 sense; it signifies simply " interest as an owner " or " legal right or title ; " 
 per Osier, .1. A., Hi. at]), (i. The stock in trade with whicli tlu! business is 
 ■ ■.irried on hy the wife is also her separate propiu'ty ; Asliwoi^tli v. Oiitram 
 (1877) .T Cli. i). !)2:{; Dominion S.ivings and Invest iiieni (.'(). v. Kihdy(1888), 
 [Tt .\. R. 487. Tlic wife's earnings in connectinn with her husbanil's y)roporty 
 by keeping boarders, selling milk, butter or eggs arc; his and not hers ; Young 
 v' Ward (1807) 2t A. H. 147 ; llamill v. Henry (ISWi) (>!» Iowa 'C,2. 
 
 Property Held Jointly. Property conveyed to a husband and wife was t'oini- 
 cily held by them by entireties, and neither could convoy without the ollii-r. 
 
782 
 
 rROPEHTV OF MARRIED WOMEN. 
 
 K. 
 
 o 
 
 C 
 
 < 
 
 r; 
 
 r 
 
 r 
 5 
 
 > 
 
 .iit 
 
 The fiiiictnu'iit tliit, (in ii cDnveynnoe tf) two or more persons, it shoultl he. 
 coiisidiTcd tliiit tlR'V lield ns tenants in ooninion (H. S. O. <; Hit, h. 11), was 
 held not to atlect tliis rule ; He Shaver and Hart (1S71) .SI l^'J.H. iilW. where 
 tlie |)ro|)erty was a<-(|uired liefore l.s;{(i, aiid therefore In'fore Tlic Married 
 Women's l'roi)ertv Aet of lS.")il. A conveyance to a husliand and wife after 
 that Statute and iiefore 1S7"2 woidd not, however, entitle the wife to a moiety 
 as separate propertv : Hritton v. Knight (I.S7!>) 'iit (-'. 1'., .WT : (iriffin 
 v. I'attersoii (IHHj') 4.) U. H. C. "..Sd : He Morse (187.-)) S i'. H. 47r). 
 It lias been held that land, conveyed in 1874 to liushand and wife 
 who wei'e married in 18()4, is iield hy them as tenants in common and 
 not liv entireties, and that the wife's moietv is separate estate ; He Wilson and 
 Toronto Klectric Ligiit Co. (W,n) 20 O.K. :{!I7. In (iridin v. l'atters<iii (1881) 
 4."> I'.C U. .").'tti at p. .■)r)4. .Vrmour. J., said : "I think it miglit well lie con- 
 tended tiiat theed'ect of Tile .Married Women's Acts is todo away with tlx' estate 
 liy entireties, and to make tiie devisees tenants in uonnnon." .At common law 
 husl)and and wife were treated as one ])erson ; Co. Lift. 187 a. Where a 
 residue was l)e(|ueathed to A, H liis wife, C. 1), K, F and I J Ids wife, to he 
 e(|uallv divided iictween them, it was held that ii and (i were ivicli entitled to 
 one-seventh : He Dixon, livvan v. Tull (I88!») 42 (.'h. 1). 30(1. In He March, 
 Mander v. Harris (188.-)) 21Ch. D. 222, .Mr. Justice Cliitty said: "It appears 
 to me that the Act makes such alterations in the rclafion of luisli.ind and wife 
 that it severs that unit' of iierson, and divided that compound person which 
 the law formerly recog., zeil, to such an extent as to render it wrong for the 
 Court to api)ly the old principle which was founded on unity of per.soii." The 
 decision was reversed on another iioint in appeal (1884) 27 Ch. I). KHi, and it 
 was dis.sented from in He .lupp, .lupp v. Huckwell (1888) 3<t Ch. I). 14S, where 
 on a gift to a husliand and a wife ind a third person, it was hehl that the hus- 
 liand anil wi'e took only one moiety, and that the only eilect of the Statute is 
 that, as lietweeii husliand and wife, what the wife takes is her se])arate pro- 
 j)erty. The i;ules is to gifts to a husliand and wife was, however, only a rule 
 of c(>iistructioii, anrl long Iiefore the Act it was held tliat any indication, how- 
 ever slight, of an intention that eacOi should take separately was suHi<icnt to 
 defeat the a])i)lication thereof ; Wariington v. Warrington (1842) 2 Hare .■)4 ; 
 Dias V. Livera (187!l) .5 A pp. Cas. 123, i:iti. 
 
 Property Covered by Marriage Settlement. S. 21 declares that nothing in the 
 Act sliall all'ect settlements <ir agreemenls therefor made either Iiefore <ir after 
 marriage. Where a marriage settlement contained a provision for the settlement 
 of any future acijuired |)ro])erty of the wife, and after the Act she became en- 
 titled to a beipiest without any limitation as to separate use, the befjuest was 
 held to come within the covenant to settle, and therefore had to be dealt with 
 as if the Act had not been jiassed. The section, however, has not the etl'ect 
 of jirevi'iiting the interest of a married woman in settled funds, with I'espectto 
 which she has a gesieral iiower of appointment, with remainder in default of 
 .ipiiiiintment to her exectutors, administrators or assigns, being by virtue of 
 the .Act her separate property, and therefore she is entitled to be paid the 
 corpus of the fund for her separateu.se; He Onslow, I'lowden v. ( Jayfor<l(1888) 
 3!)Cli. I). ()22; He Davenport, Turner v. King (18!».-)) 1 Ch. Htil. 'The words 
 "interfere witli oi- ailect any settlement" mean invalidate or render inopera- 
 tive any settlement ; He Armstrong (1888) 32 Sol. .F. .-)77. 
 
 SUMMARY. 
 
 (1) All proiierty, which uniler tlie cloclrines of the Court of Cl-.ancery was 
 e(iuitable separate estate, continues to be such and subject to the rules respect- 
 ing the same, except that the married woman may now possess the legal 
 estate. 
 
 (2) .All property of a v.oman married on or before 4th .M:'.y, 18.-)!l (not com- 
 prised in any marriage contract or .settlement: Dawson v. MoH'att (1880) 13 
 O. H. I7<l) is her statutory sejiarate ))idperty except (a) jiroperty taken posses- 
 sion of by ln'r husband Iiefore that dale, (ii) i)r<iperty r<;ceived from her hus- 
 band during coverture. 'I'lie latter is probably in all eases ei|uitable separate 
 Instate ; Sheiratt v. .Mtudiants IJank (18!(4)21 .A. H. 473; 'i'rusts (.'orporation 
 v. McCue(18!m)28(). H. 1 1«. 
 
 (3) All ijroperty of a woman niairied after 4tn .May, l8.-)it (not comprised in 
 any marriagf! contract or settlement) is statutory separate )iidpertv, except 
 property received from her luisband during co\erturc which is prolia^ily eijuit 
 able separate estate. 
 
PROPERTY OK MARRIEIJ WUMKX. 
 
 783 
 
 (4) All propeitv of a wdiimii niairicd aftt'i- iJikI Maiili, IH"-, if^ separate 
 •'Ntate. 
 
 (/)) All |)i<i|)<'rty of a rnairii'd woman her titU' to wliicli accTiicd after 1st 
 July, 1884, is separate' estate, no niattei- when slie Wi'.s married. 
 
 Power of DlspoBition. A married woman now has full power to dis])O80 l>y 
 deed of her real estate w lieii'ver a(i|uired. H. S. (). e. Kia, H. 1. Kvery married 
 woman lias also full power o dispose of her statutory separate jiersonal ])ro- 
 p<'rty aei(uired since ISM4. ;.nd i»eisonal earnings aerpiiied after lH7:i, and per- 
 iiaps all |)ersonalty ; Lawson v. Laidlaw (IK7S) 3 A. K. 77. All property of a 
 inairie<l woman which wiadil devolve ui)on hei- heirs, executors oi' ailministra- 
 lois, may he disposed of liy will ; H. S. (). c. I'JH, s.s. !) (o). Ml, •2(i, itiiti' j). (i45. 
 Kiiuitahle separate estate which was free fiimi restraint upon anti'ipation was 
 always suliject to he disposi'd of hv the married woman eithei' inter riros or liy 
 will ;' Tavlor v. Meads (IHfi,-)) 4 l)e(;. .1. & J. .".!»7 : I'Vttiplace v. (iorges (178!)) 
 1 Ves. Jr. 4t)l, I H. K. 7!» : Sturgi.s v. CorpilSdti) 13 Ves. liMI, !) R. R. Ki!) : 
 A<lams V. (lamhle (18()l) 12 h: Ch. R. 102. 
 
 Liability for Debts. At eoinmen law a married woman was not liahle for 
 debts eontracleil duiing coveiture. For her anteiniptial dohts, hoth inisliand 
 and wife could he sued, and until IS,")!I hoth might he taken in execution luider 
 a cnjilii-1, and the wife wouhl not he <lischarged if she had separate property ; 
 tSparkes v. Hell (1828) 8 H. & C. 1 ; iMTgusou v. Clavworth (1844) (i t). H. 2(i!); 
 Uirkin v. .Marshall (18.->(l) 4 Kx. 8U4 ; Kdwards v. .Vlartiu (18.')1) 17 <^ H. <>!•.'{ : 
 Ivensv. Ilutler (1857) 7 K. (."t H. 1")!) : see S. ott v. .Morley ( I8,S7) 20 (.). B. I). 
 12!(, and the se))arate estate might ho leachcd in eijuity to satii'fy such ohli- 
 gati((ns ; Chuhh v. Stretch (18711) L. R. 9 Kij. .V).". In ecpiity, ohligations 
 iucin'red hy a married woman could he enforced against her sej)arateesTaCe7 
 ifeifRer expressly or hy implication she had contracted with reference to it, 
 airfTwitlrtliL' Intention of hindiug it : .Matthewiuan's case (ISfifl) L. R. .S Eq. 
 TSTr Tlie onus of proving tiiis was on the plaintill': Murtav v. Barlee 
 (1834)"r?'"M>'1- * K- 2nn, fr K. TT. r,2. The .separate estate was not in any 
 way fett(!redl)v the coutr.Kt, nor (Miuld the married woman he prevented from 
 disi)osing theieof ; .lohnson v. ( iaUagher (18(11 ) .S I)e(!. F. it J. 404; Hohii.son 
 V. Pickering, (1881) KiCh. 1). (i(i(l ; Hemingway v. Rraithwaite (18S!t)(i* 
 L. 'I'. 224. The del)t eould lie enforc.ed only against such separate estate as 
 she was jiossessed of free from I'estraint on anticipation at the time of the con- 
 tract, and wiiich remained al the time judgment was given ; I'ike v. Kitzgih- 
 hon (IH81) 17 Ch. D. 4r)4 ; Picard v. Hine ( I87tl) L. R'. .J CU. 274; King v. 
 Lucas (1883) 2.'! (Jh. I). 712. After accpiired separate property, not heing at 
 the time of the contract the projierty of the married woman, was not property 
 to he nia<leavailahle in a (,'ourt of Kciuity, heeause the contract was, as against 
 that pro|)erty, no contract at all ; Pike v. Fit/.gihhon (1881) 17 I'll. D. •n4, 
 4()(1. In 1872 the Legislature, as we have seen enacted (3.") V . c. Hi, s. 9) 
 that a married wonian r.iight he sued (a* law and in ecpiity) in (.aspect of her 
 separate dehts, engageii.ents, contracts or torts, as if she were unmarried. 
 The Courts, rightly or wrongly. adoj)ted the rules relating to e(|uital)le separ 
 utc estate, and it was settled that in an action against a married woman, it 
 was neeess.vrv to show that she was possessed of separate estate ; Harling v. 
 Rice (187ti) r A. R. 43 : Law.son v. Laidlaw (1878) 3 A. R. 77 : Standaid P-a- '. 
 V. Boulton (1878) 3 A. R. !)3 ; Clarke v. Creight.m (1881) 4.5 U. C. R. TiU. 
 
 It wouhl .seem also that the eipiaitahle I'ule was exlendeil hy rc(|uiring that 
 the separate estate should he an innnediate possessory interest, and that an 
 existing trust to take eH'ect in |)ossessi(m in tlse future was insufficient ; Field 
 V. >:eArthur (187()) 27 C. P. l."i : Clarke v. Cri-'ghton (1881) 4r) U. C. R. rA4. 
 
 The Act of I8S4 enacted that every contract should he deemed a contract 
 with lespeet to and to hind the nuinied \\(Miuin"s separate j»ro|)erty iniless the 
 contrary shoidd he shewn, i.e., mdess the j)roperty was of such a nature that 
 the pres\nuption could not arise ; Bonner v. Lvon (18!KI) 38 W. R. ."i41. 
 
 The enuctment of 1884 is in this respect of importanct^ only as to eonliacts 
 made hefore 13th .A])rd, 1S<I7. The piesumjition of intention to hind se|)arate 
 estate has heen held not toarise w liere the married woniiin had no other property 
 hut hei' own and her I'hildren s clothes, as it would he; ahsnni to assume an 
 intentiori to enter into a (imtiact with respect to jH'opeitv which she could not 
 do without; Leak v. Drithehl (181HI) i4(^B. I>. 1112. Clothing and personal 
 ell'ects, such as a wedding ring and a watfili and chain, are not s\u'h noparate 
 property as \\ ill he sutlii'ient to laise the presumption ; Ahraham v. Hacking, 
 (|8!M>) 27 (».!!. 431 ; Braunstein v. Lewis (I8}tl) (W L.T. 440. The extent of 
 
 ';! f'.i 
 
r 
 
 784 
 
 I'UOrEUTY OK MAllltlED WOMEN. 
 
 O 
 
 c 
 z 
 
 < 
 
 r 
 
 or 
 
 r 
 
 S3 
 
 the engagumcnl which tAw entorL'tl into wuh iiiiiturial, ami wlieie hIiu Ixiugiit 
 jewellei-y on hei- (<wii cnMlit, iiiid had no otlii-r Hopiirate estate tiian other 
 jewellery and a wardroljeof furs, dressesaiid jacket a, thepreHuni|)tioiiofan inten- 
 tion to hind the same a.s lier separate estate was made ; 15onner v. Lyon (1S!M)) 
 38 W. K. 541. And where she had an income of i;3(KI a year, snl)jeet to restiainC 
 on anticipation, and a house rent free, which slie sometimes leiited, and some 
 jewellery and wearing aiijiaiel, tiie piesiimption of intention to l>ind tlu; same 
 for goods supplie<l was also made ; Kveritt v. I'axtoii (liSOl) ti.") L.T. .'WIJ. But 
 where the amount of tlit^ contract was large, and the separate; jjrojierty con- 
 sisted only of artichss of personal adornment, the j)resuniption did not arise ; 
 Harrison V. Harrison ( I «HH) ISIM). IHO ; liraunstein v. Lewis (18!»l) f»5 L.'l'. 
 449. Tiie ((uestion is one of fact, to ascertain whether the sepaiate ju-operty 
 is such as she could and might reasonably have contracted credit upon ; Sweet- 
 land V. Neville (ISi)l) 'Jl 0. R. 412 ; evidence of the intention, or absence of 
 intention so to contract, as to hind tlie ])articulai- property, is inadmissihh? ; 
 Homier v. Lyon (1H!M)) ,SS \V. U. r)41. A distrilmtive share to whi<'h a married 
 wonuin hecanu-entitled. under the Devolution of Kstates Act three days iieforii 
 the contract, was sulHcient to raise the picsinnption ; Mulcaiiy v. ( 'ollins ( IS!t4) 
 •24 O.K. 441. I'rojierly over which a mari'ied woman ha.'i a powei- of ap|)oitit- 
 ment hy deed or will, witli a gift over to a third person in default of appoint- 
 ment, is not su('h separate estate as would liefore 1H07, enable her to contract ; 
 < Jordon v. \Varreii (ISilT) 24 \. R. 44. Where in a deed to a married woman 
 grantee, .a covenant to ])ay otl'a mortgage was inserted, but she did not e.^ecute 
 the deed, she was, nevertheless, held l)()und by the undeitakings expressed in 
 it on her j)art to lie jjerformed, so as to biii<l the separate estate ; Small v. 
 Thompson (1 897) 'is S.t.'.R. 219; and a claim for indenniity can l)e enforced 
 against her: Whiltaker v. Kershaw ( lHi)())4.">Ch. I). .S2(> : liut see McMichael v. 
 VVilkie (1891) IS A. R. 4(i4. A wife is liable to her husband for moiu^ys bor- 
 rowed after mariiage but not for th<ise Ixiri'owed before: Hutlerv. Hutler 
 (ISH;-)) 10(^15.1). :{74. 
 
 The onus of pioving an enforceable contract is upon tlu' plaintiti, and tlie 
 po.s.session of se|)arate estate at the time of the contiact must, as to contracts 
 before 13th AjHil. 1897, be alleged and jiroved ; Field v. McArtliur ( 1870) 27 
 (1 1'. IT) ; Darling v. Rice (1S77) I A. R. 43 ; Re Shakespeare, Deakin v. Lakin 
 (1885) 3(1 Ch. I). Ui9; I'alliser v. (iurney (1SS7) 19 Q. H. D. .-)I9: Stog<lon v. 
 Lee (1891) 1 (^. R. (iOl ; Canadian Hank of Commence v. Wo.jclcock (1889) L3 
 1*. R. 242. in the absence of s\icli allegation judgment bv default couhl not 
 be obtained : Tetley v. (iritiith (1887) 07 L.T. 073 ; Holtby v. Hodgson (1889) 
 24 (,>. H. 1). 1(13 at p. 10.') ; and a special endorsement was insutHcient ; Ncsbitt 
 V. Armstrong (IS92) 14 I'.R. 3()(). 
 
 Under the Act of 1884 a contract bound not only the separate ])rtiperty 
 whicii the married woman was possessed of at the time of the contrac^t, but 
 also all her suliseiiucntly ac(|uired separate |)roperty. It would not liind pro- 
 perty which sIk; acipiired on or after the deatli of hei' husliand ; Re Price, 
 Staiiord v. Noble (ISSo) 28 Ch. D. 7(19 : lieckett v. Tasker (1SS7) 19(^.15.1). 7 ; 
 Helton V. Harri.son (1891) 2 g. 15. 422; Re Hewitt (189.">) 1 g. R. 328; Ham- 
 mond v. Keachic; (1897) 28 (). R. 4.V>, l)Ut upon her remariiag(! all separate 
 property not subject to restraint uj)on anticipation will lie lialile for debts con- 
 tracted during the lirst <(i\citure : .lay v. Robinson (1890) 2.') (,». R. D. 4(>7 ; 
 but a restraint imposed only liy herself on entering into the s(;cond niarriage 
 would lie inefl'ectual ; s. 21 : unless made before the Act of 1884 was jiassed ; 
 Beckett V. Taskcr(l887) l9t,>.B.|). 12 ; Smith v. Whitlo.k (18S(i) 34 W.R. 414. 
 Property njipointed by will inuler a general jiowcr of a|)pointuH'nt was liable, 
 although the married woman had no separate estate at the time of contracting ; 
 Re Ann, Wilson v. Ami (1894) 1 Ch. .'549. 
 
 Act of 1897. Thcact of 1897 rcniiivi'd fioiii 13tli April in that^'carallini^ajiaeity 
 of a married woman to contract : and renders liable all |iro|iertv of a married 
 wdiiian, whether ac(iuired during coverture or widowhood, tor I lie Matisfaction 
 of lier contract debts. The only exceiition is separate jiroperty, which she it 
 restrained from antici|)atiiig ; s. 4. The .Vet was taken from Tlie Married 
 Women's Property Act 1893 (oO k "i V. c. ti3). An important (^hangis how 
 ev;er, «as maiUi in the clause dealing with the restraint on anticipation. The 
 proviso in the Knglish Act, s. I, reads " Provided that nothing in fhis section 
 contained shall render available to satisfy any liaiiility or obligation arisin;^ 
 out of such conliiicl any separate proper! \- which nl /hut llini' or llii-riK/'Ifr she 
 is restrained froru anticipating ; " see Lowry v. Dcrham (189.')) 2 Ir. R. 1'23. 
 T'he italicised Words are omitted in the Ontario Act. 1 1 uiay be that under 
 
PKOl'EHTY OK MAKIUKI) WO.MKN. 
 
 785 
 
 10 Ixiiigiit 
 hail (liner 
 fan intun- 
 ,<)n(lS!K)) 
 1 restraint 
 and .sonic 
 
 tlie HaiiiiJ 
 3S:{. But 
 lerty eon- 
 not arise ; 
 1 ) (15 L.'l". 
 ! jiroperty 
 i\ ; Sweet - 
 al)senic of 
 ;lniissil)le ; 
 
 a nuirried 
 la\ s liefore 
 lli'ns(IS<.)4) 
 )f a|)))oint- 
 if a|i|ioinl- 
 1 eontiael ; 
 ied woman 
 lot exemile 
 xprcssed in 
 
 ; Small V. 
 le enforced 
 I'Mieliael v. 
 Kiiieys lioi - 
 ■r v.'Huller 
 
 ill', and tlie 
 ,o ediitraetrt 
 ir(l«7G) -27 
 ;.iii V. Lakin 
 
 Stogdon V. 
 
 k (IHHi)) in 
 
 eoulil not 
 
 Igsoii (ISH'J) 
 
 it ; Xeshitl 
 
 ite ]>rii]ierty 
 
 iiitraet, Imt 
 
 III liiiid pro- 
 
 : He l'ri(!e, 
 
 !)<,>. 15.1). 7; 
 
 :«S; Ham 
 
 all separate 
 
 ir debts eon- 
 
 15. I). 4('.7; 
 
 i\d iiiarriawi 
 
 was passeii ; 
 
 ^4 W.H. 414. 
 
 t was lialilo, 
 
 lontraeling ; 
 
 dlineapueity 
 of ii married 
 • Hatisfaelioi' 
 wiiieh she i.-* 
 The Married 
 liangis how 
 pation. 'The 
 ■ Miis seetion 
 (atioii arisin- 
 'hcrcdi'ter she 
 '2 Ir.K. V2:.\. 
 le that undei 
 
 tlu^ Ontario Airt any property which liecomea freed from a restraint upon antici- 
 pation, may thereujion Ik; taken in execution to satisfy eontnict delils, 
 although at the time of the contract or judgment, or both, the restraint was 
 in force. As liie restraint ceases with the coverture, it would follow that the 
 henetit thereof would he lost on the luisliaiid's deatii. 
 
 Joint Contract. A married woman may ('ontract jointly 
 or a thiiil person ; Hulme v. 'renaiit (I7"H) 1 Hro. (.'.(.". I(i 
 (IHitl) 1 (>).|{. 7H1 : Kerr v. Stri|ip (187<)) 4(1 U. ('. H. I'J."); 
 (1877)<)('li. 1). 7-'H ; Kra/.ce V. .McFarland (1S7S) 48 I'. ('. 
 
 with her liusliand 
 ; lloare v. Nililett 
 Davies V. .Fenkins 
 K. tiHl : Iiingnian 
 
 V. Harris (l,Si)4) •_>(! O.K. ,S4 ; liut see Horner v. Kerr (IHSO) A.H. 'M\. 
 
 Restraint on Anticipation. .\ restraint on anticipation may he creat(!d liy 
 the words " without power of antici|)ation,'" or woids importing thai the 
 uiairied woman sliall not have power to deal therewith, or with the income, 
 liefore it lieeoiues jiavalile to her: ILiriisoii v. Harrison (IS8S) LSI*. I). ISO; 
 Field V. Kvans (l,S4(i)" lo Sim. .'no : iJaker v. Hradley (IS.-)7) 7 I). .M. Ik (i. ."i!»7. 
 A mere expression of wish oi- lU'sire not to sell will li<^ iiisiidicienl ; He Hutch- 
 iugs to Hurt (18S8) ."i!l L. T. 4!)0. It may apply to either real or jiersonal jiro- 
 pertv, and either to income alone, or to the (.'orpus ; Haggctt v. Meu.x (184()| 1 
 Phil". (••27 ; Ke Currey, (iikson v. Way (No. 1) (18Hti) WlVh. I), .-{(il ; He (!rey, 
 Aea.son v. Oreenwooil (1887) 84 (,'Ii. I). 712 ; He Tippett and Xewliould (1888) 
 87 Ch. I). 444. Formerly a gift to the se[)arate use would not lie implied from 
 the mere existeniu- nt the restraint ; Stogdon v. Lee (18",ll) 1 (,». 15. titil ; liul 
 the eli'ect of the Statutes, as they now exist, is that any devise or gift to a 
 married woman is for hei- separate use, and a I'estraint on anticipation will 
 therefore attach to such jiroperty, althotijrh the jiropcrtv is not also expressed 
 to he foi' the separate use of the married woman : He Lumlev, Kx parte Hood- 
 Barrs (18!lti) 2('li. ti!l(l. After the death of t he husiiand," the restraint falls 
 wit!) theseparateii.se; Re Woods (188!l) (il L. T. 107, hut it will generally 
 revive upon re-marriage ; Tullett v. Arnisti'ong ( 1838) 1 J5eav. 1 ; 4 Myl. k Cr. 
 877 ; Ilawkes v. Hulhaek (1870) L. H. 11 K(i. ."i ; .see Moore v. .Morris (lS."i7) 4 
 Drew. 83. The restraint ceases to attach to income which has liccome pay- 
 alile ; Hood-Harrs v. Heriot (1896) A. ('. 174. and a reeeivei- may he aiipoiiited 
 of any arri'ars due at the date of the judgment ; ih. ; Whiteley v. Kdwards 
 (18!l(i) 2 (|J. H. 48. Arrears accruing suhseipiently to a jui'.gment, would not 
 foi'iiieilv he liound liv the iuilgmeu( : Hood-Harrs v. (Jathcart (1804) 2 <,). 1!. 
 ,'5.-|0 ; Whitelev v. Kilwards (180()) 2 (>). B. 48 ; Lowry v. Derliam (ISO.'i) 2 Ir. 
 H. 128, hut the case may lie different here as to contract debts incuiicd after 18tli 
 April, 1807 ; see s. 4 (2) and notes -(ii/ii-fi. The fact that a married woman is 
 estojiped from .setting up the restiaint. will not prevent it from being efl'ect- 
 ual ; Hateman v. Faber (1807) 2 Ch. 228. 
 
 Where the direction is that after a paiticular estate, a fund is to be /mill to 
 a marrieil woman for her .sepaiate use. as the same shall become due and jiay- 
 able, and not by way of anticipation, tlie restraint ceases upon the cessation 
 of the particular estate ; Re Hown. OHalloran v. King (1884) 27 (.'h. I). 411 ; 
 Re Holmes, Hallows v. Holmes (1802) (17 L. T. 33"). 
 
 Removal of Restraint. S. authorizes the Court to bind a married woman's 
 interest in property. notwitlistan<ling the restiaint. • I'pon an ap|iliiatioii 
 under that section, it is the duty of tlie Court to in(|uire, not merely how it 
 has come to pass that money is wanted, who is resjionsible for that result, and 
 who is liable for debts already incurred, but also to what extent and in what 
 manner, beuetit will be se(^ured to I lii> wife by uraiitinii the ai)i)lica(ioii. and 
 
 hat, if any, conditions can bi' icasonably and properly imposed; I'aget v. 
 I'aget (1808) I Ch. 47, !>'>. The juri.sdietion is iliscretionary only ; Re Little, 
 Harrison v. Harri.son (1880) 40 (;h. i). 418 : Re .Ionian. Kinii v. Pieard (188(1) 
 io L. .(. Ch. 830. and strong gniunds must lie shewn ; Tampliii v. Miller (1882) 
 
 30 W. R. 422. 'i'lie ( 'oiirt must considc 
 
 I'hether it is for the wife's beuetit 
 
 pecuniary or otherwise ; Re Pollard (180(1) 2 (.'h. ;"i.'i2. The (.'oiirt, has bound 
 the property by approving of a .scheme for discharging the liabilities of a 
 married woman ; Re Wilson-Stewart, Keown-Bcyd v. (iilmour (1800) 7o L. ,T. 
 .'181 ; Re C.S Settlement (1887) Tid L. ,1. Ch. ").-|(i ; Hodges v. Hodges (1882) 2i> 
 (Jh. 1). 740 : by sanctioning the c<impromi"e of litigation, with reference to 
 an annuity, with lespi'ct to which restraint was iiii|iosed, by the payiiieiit of a 
 lum|i sum ; .Musgiave v. Saiidenian (I8H3) 48 ii. T. 21 "> : by authorizing money 
 o enalile lif<> jioliries to be kept up, and interest on a luortgago 
 
 to be raiiicd, ti 
 
 Re Milner. .Mill! 
 
 .Milner (1801) 3 Ch. .147; and to comjilete a jiur- 
 
 ■liase ; Re Teiinant (18iHI) 2.1 L. R. Ir. .122 : and for an advance to i 
 
 Ro 
 
 Sawyer (189(1) Ir. R. 40, or to pa\ otf a mortgage ; Re Seagrave (188(1) 17 L. 
 Z 1 
 
786 
 
 PROI'ElVrV OK MAHIMED WOMKN. 
 
 o 
 
 < 
 
 r 
 
 r 
 
 5 
 
 > 
 
 53 
 
 H. Ir. 37.") ; liy authorizing Hlinics to be tiikon in a Company, in lieu of an 
 annuity uliarged on a partnerxhip liusiness ; Rn Millar (1H90) 2't L. R. Tr. 107 ; 
 by auiliorizing an advantagL'ous nale of a lif(' interest ; Ke Flood (1SH3) II L. 
 R. Ir. 373 ; liy authoii/.ing leaffen to be made; Ke (.'nrrey, (iib.son v. Way 
 (1887) i'Ui L. J* t;ii. ;W!). On reforming certain iiiKlrvimentH, the (.'oiut liouiid 
 the property for the payiiiLiit of the costs, notwithstanding the lestraint ; 
 Sedgwick V.' Thomas (ISS.S) -W L. T. HKI. The (."o\irt refused an applioation 
 where the piopo.sed dealing might ciiiise a forfeiture of the wife's lifi; interest : 
 He Jordan, Kino v. I'icard (IH8ti) .*),") L. .J. i'h. .'WO, and where it would bene- 
 fit only the estate of a deceased person ; Thomson v. Thomson (ISlMi) P. '2().S. 
 The (.'ourt will only enable some particuli'r (lis))osition to tx! ma('e, and will 
 noi altogether remove the restraint ; Re Warren (188;$) .VJ L. .1. Ch. 928. Jt 
 is the order of the Court which binds the estate, and not what she does when 
 thj restraint is removed : Paget v. Paget (1898) I (Jh. 4711. 
 
 It is not nece.ssary to serve the trustees with notice of the application ; Re 
 Little (1887) .SO Ch. J). 701. Whei-e an order is obtained for the ptirpo.si' (^f 
 charging tlie property with money to be applied in paying the buHband'H 
 debts, the ordci' should show on the face of it that the husband is to lie liable 
 to in<lemnify the wife, if he is lobe muicr any such liability, and if it does 
 not do so, he is under nosucli liability i Pag(^t v. Paget (1898) I Ch. 47, 470. 
 
 Liability for torts and coats. IJv s. 17 the liability of the Inisband for wrongs 
 eonunitted by the wife after mariiage, is liinite<l to such |)r()perty as he 
 awpiires througli her, after deducting liabilities already satisfied and judgments 
 lecovered again.st him, in icspcct of her ante -nuptial liabilities and post- 
 niiptial torts. It is, however, provided that the liability t)f a husl)an<l 
 married before 1st July, 1884, is not to be inci'caseil or diminished l)y thi^ 
 .Vet. For torts authorized l)V the liusi)and he was, at common law, and 
 probal)l;> still is personally liable ; see Capell v. Powell ( 18(i4) 17 C B. N. S. 74,'}. 
 
 Foi' torts committed by the wife inde|K'ndently of her husband, both were at 
 common law liabh? to bo sued jointly, during the (jovciture. " Strictly .speak- 
 ing," said Jes.sel M. R., " she cainiot coiinnit torts ; they are torts of the hiis- 
 banil, and therefore she creates, as against liei- husband, a liability." Wain- 
 ford V. Heyl (l87o) L. R. 20 F,.|. :{21. If the husband died before' judgment, 
 the widow became personally liabh' ; Wright v. Leonard (1801) 11 C. 15. N. S. 
 2r)8. If the wife died, or the parties were divorced before jurlgment, the hus- 
 band was not liable ; (Japell v. Powell (1804) 17 C. B. N. S. 743. The Act of 
 1859 (s. .3) ])rovided that notliing tlieiein contained should j)rotect the proj)erty 
 of a married woman from seizure and sale on any execution against h(^r Inisband 
 for her torts, and that in siudi case, execution should be first levied on her 
 separate property. Th(! Iuisl)and therefore still continued liable to be sued. 
 The Act of 1872 (s. 9) enabled a married woman to l)e sued separately from her 
 husband in respect of her torts. The liability of the wife to be sued alone, did 
 not depenil upon her having se])arate prop(uty ; Con.solidated Hank v. Hender- 
 .s(m (1879) 29 (.'.P. 549 ; Bailer •. . Westover (1884) .->(). R. 110 The Act of 1872 
 merely allowed lier to be; suej alone, where formerly she could only be sued with 
 her husband ; Stone v. Knapp (1879) 29 C. P. OO.i. In Aukt v.' Rogers (1880) 
 31 C. P. 19i), Osier J. lield that a Inisband was no longer liable to lie sued in 
 respect of his wife's tort, but in Seroka v. Kattenburg (188(i) 17 Q. H. I*. 177, 
 and Lee V. Hopkins (1890) 20 O. R. 000. it is held that where the marriage 
 preceded 1st July, 1884, the husband is still liable as at common law. The 
 wife's separate estate was not in c(|uitv liable to satisfy her torts or breaches 
 of trust ; Wainford v. Heyl (187.-)) L. U. 20 l';(|. .'Vil : l)ut at law uj^m a judg- 
 ment being recovered, and u))on the wife lieing taken in execution on a rnputs, 
 the Court might refuse to ilischarge her, if she had separate properly, until the 
 judgment was paid ; Fergusson \ . Clay worth (1844) (i (). B. 209. ,\iiy damages 
 or costs recovered againsla married woman for liabilities incurred during cover- 
 ture, are j)ayable out of her separate estate, and not <itherwise ; ss. .'{ (2), IS ; 
 Scott v. Morley (I887)20(>>. B. I). 120; Whittakcr v. Kershaw (1890) 4.') Ch. 
 T). .320. Only such .separate estate as slus is ])ossessed of at the date of the 
 judgment will be bound ; Cox v. Bennett (1891) 1 Ch. 077, 02.'>. .Ain^ars ot 
 income which ucrue after the judgment, but which she was restrained from 
 anticipating, could not be I'oached ; Re (Manvil, FUis v. .lohnson (I88t!) 31 Ch. 
 1). ry.VI; Hood-Bans v. Cathcart (1894) 2 Q. H. ,W.) ; Whitely v. Kdwanis 
 (1890) 2 Q. B. 48. Where a bear beliuiging to the husband was allowed to be 
 confined on the .separate projierty of the wife, and escaped therefrom, she was 
 held responsible f.)r injuries inllieted thereby upon the princijili •<( Rylands v. 
 Fletcher (1S08) L. R. 3 H. L. .330 ; Shaw v.'McCreiiry (I8<M() 19 ( ). R. .'19. 
 
PKOl'EKTV OF MAUIUEI) WOMEN. 
 
 787 
 
 ou of un 
 , Ir. 107 : 
 IS3) 1 1 J.. 
 , V. Wiiy 
 ii't Ixniml 
 •cHtrainl ; 
 iplication 
 iiitei-cst : 
 mill lieiic- 
 (i) I'. -iiW. 
 , mill will 
 . 9-28. It 
 ioes when 
 
 iitioii ; Ri' 
 |)nr|H)SO of 
 
 liiisliaiid's 
 I) )>e lial)le 
 I if it ilocs 
 
 47, 470. 
 foi- wrongs 
 •rty rtH 111' 
 jiiil^nicnts 
 
 anil post- 
 a linsi)anil 
 leit by till' 
 
 I law, ami 
 . N. S. 74:i 
 
 >tli were at 
 ctly speak- 
 of the liuH- 
 y." Wain- 
 judgment, 
 C. 15. N. S. 
 it, the hus- 
 The Aet of 
 he proiierty 
 lier hu.shanil 
 ■vied on iier 
 to be sued, 
 ely from her 
 ;d alone, did 
 i V. Hender- 
 i Act of 1872 
 lie sued with 
 ;ogers(1880) 
 
 l)e sued in 
 ». 1{. 1). 177, 
 lie niarriagi- 
 
 II law. Tlie 
 4 or hreaehes 
 ipon a judg- 
 
 1 on a rapids, 
 rty, until the 
 Any damages 
 duringcover- 
 ss. :! (2), 18 ; 
 18i>()) 45 Ch. 
 le date of the 
 
 Arrears of 
 straini'd from 
 
 (iH8(i) :n (Jh. 
 
 y V. Edwards 
 [Uowed to III' 
 fi'om, she was 
 if Rylands v. 
 I). R. 39. 
 
 trust made him lialile for her 
 •M t;ii. 1). .S!)0. The husl.anil 
 of his wife ; Re Ayres (IS8.S) 8 
 
 d 1) 
 
 married woman during 
 
 Household liablUties. A woman who lives with her hnslmnd and family, and 
 who iirders houseiiold sn|)plii's or jirovisiims in the ordinary way, as managing 
 the houseliohi is not, by the mere fait of possessing separate estate, deemed to 
 contract with reference thereto : llrownv. Winning (1878) 4'.i U. (-. R. 327; 
 (iritfin V. I'littm-.son (1881) 4.") l'. (.'. R. .■).'}<>; but the circumstances may be 
 such, as to lead to the conclusion that she was cuiitractirig, not for her lius- 
 liand. l»ut for herself in rcsi»ecl of her .separate estate, '"which would tlien be 
 liable; Matthcwman's case (IS(i7| L. I{. 'A Ki|. 787. S. 4 expressly exco])ts 
 contracts entered into by a iiiarricd woman as an agent. 
 
 Husband's liability for ante-nuptial debts. As we have seen, the husband is 
 liable for his wife's debts before marriage, only to the extent of the jiroperty 
 ac(|uired tluough her ; s. 17. He may lie sued either alone iir jointly witii her; 
 an unsatisfied judgment against her separate estate is no bar to an action 
 against liim ; lieck v. I'ierce (188!)) 23 <^ H. I). 310. 
 
 Liability as executrix, administratrix or trustee. The liabilities incurred by 
 n niaiiicil woman liy reason of a breach of trust or devastavit aredechired by 
 the Act (s. 1) to lie contractual liabililies. The husband is not liable, unless 
 he has acted or intermeilillcd in the trust or administration. Formerly the 
 wife could not be executrix, administratrix or trustee without her husband's 
 a.saent. His a.ssent to iier acc;'))tanci' nf the 
 breaches of trust; Hahin v. Hughes (1880) 
 need not now join in the administration bond 
 P. I). 108 
 
 Judgment Proprietary. Kor debts incuircii 
 coverture, no per.soiial judgment can be given against her; it is her separate 
 estate which is liable. The saiiic rule applies to judgments recovered during 
 the coverture, for torts committed after marriage. The judgment is [iroprie- 
 tarv ; it is her propertv imlv which is liable ; Kerr v. Stiipp (187(>) 24 (ir. 
 Mts": iScoti V. Morley ('l887l" 20 g. H. I). 120; Holtbv v. Hodgson (188!)) 24 
 \K B. I). 1(»3; Re NicLeod v. luuigh (1888) 12 P. R. 400; Re Lvnes, Kx 
 parte Lester (18!)3) 2 (,» R. 113; Re Hewitt, Kx jiarte Levine (I8!)5) I I). 
 B. 428. Suiiiniary proceedings upon specially endorsed writs were in Cam- 
 eron V. Heiglis (iH!)0) 14 1'. R. .'lO. said to be ina])plicable to proprietary 
 judgments ; but see roiitrn, Nesbitt v. Armstrong (I8!)2) 14 V. R. 300 ; J>owne 
 V. Fletcher (1888)21 Q. B. I). II. The judgnu'iit against a married winiian 
 for ante-nuptial liabilities is jiersonal and not juojirietarv ; Re Tcasdall v. 
 Brailv (18})8) 18 l>. R. 104; Robinson v. Lynes ( 1 8!14) 2 (>. B. 077 ; but see 
 s. 18 'and Downe v. Fletcher (1888)21 <). R. D. 11, where the judgment was 
 limited to sepai'ate estate. 
 
 Enforcing Judgment. If tlie prupcrty is in the hands of trustees, the .|udg- 
 nienl is enforced bv a order cliarging the ])ro|)ertv, and appointing a 
 receiver; Lawson v. Laidlaw (1878) 3 A. l\. 77, !)1, !)2 ;'Whiteley v. Kdwards 
 (1890) 2 Q. B. 48. If it is tangilile jiroperty owned by the married woman, 
 it mav be rcaclieil in the ordinary wav liy a //':/■/ fucia-f ; Beenicr v. Oliver 
 (1884) 10 A. H. 0.-)0, 001 ; Moore v. Jackson (■|8!)3)' 22 .S."C. R. 210, 2.3.-) ; C. 
 Form 107. An inquiry may b directed to ascertain what the .separate 
 
 Ijcrson to receive it, until the debt and 
 
 ■r (1883) 24 Cli. I). 40.-.; the plaintitl' mav 
 
 V. A'hitc (1885) 16 L. R. Ir. 3'22. The 
 
 c ordered to ))roduce it ; Bursill v. Tanner 
 
 e-state consists of, and aiijiointiiig 
 costs aie jiaid ; Re Pearce and ^^'.ll 
 be a))])oinlcil receiver; Mc(iarry 
 trustees of anv settlement ma\' li 
 
 (I88.-|) Ml (,). B. 1). 1 ; aiid till' defendant may be examined as to the jiar- 
 tieiiliirs of her separate ])roperty ; Aylcsfon! v. (ireat Western Ry. Co. (1892) 
 2 <^>. B. (i20. Where furniture is settled for tlie joint use of the husband and 
 wife, with a power of a|)|miiitment. there is no |)owi'r to aiijioiiit a Receiver of 
 till- wife's interest therein ; Whittaker v. Cohen (1893) 0!) L. T. 451. 
 
 Remedies of Married 'Women. The Act of IS72 (s. 9) gave to the married 
 woman the power to maintain actions for the jirotoction of lier separate estate 
 against all persons wh'imsoevcr. In 1884 the ])reseiit s. 15, which is taken 
 from s. 12 of the Fiiglish Act. was substituted for thi^ section theretofore in 
 force. An injunction restraining the husliaiid from entering a liou.se which is 
 her separate propertv inav be obtained ; I)onnell\- v. Doiniellv (188.'^)!)0. R. 
 073; Wood V. Wooil (1.S7I) li) W. H. 1049; Symonds v. Hallett (1883)24 
 (,'li. I). .340. Her own iniilcrtiiking as to damages will be accepted ; He I'rynne 
 (1885) .■)3 L. T. 405 ; and it may be enforced by her husband ; Hunt v. Hunt 
 (1885) .■)4 Ij. .T. Ch. 2.Si). She may also maintain an action for trcsjiass against 
 any one who enters her own house against her will, though by the authority of 
 the husband, and uneonneeted with the desire of the husband to live with her ; 
 Weldoii V. I)e Bathe (1884) 1 I i). B. I). 33!). Where a husband is sued for 
 moneys lent out of separate estate, a distinct contract for payment must be 
 
 
 ' .'■ ?>;a 
 
788 
 
 I'HOPKIITY OF MARRIED WOMEN. 
 
 O 
 
 c 
 
 < 
 
 r 
 
 c/ 
 
 r 
 
 > 
 
 proveil; Ko Millur(lS77) 1 A. K.;MMJ; Hoi)kinsv. HopkinK (18«:1)7<). H. •-'24; 
 befresne v. DtfiXHiie ( ISSS) 1(1 0. H. 773 : Warner v. Murray (188!)) KJS.C. U. 7-20; 
 Ex |)artL' Horni', He Home (188(1) '•4 1^. T. .'{((1. Ini'imie, of .se|mrate estate re- 
 cuiv(!(l liy the huH))an(l,aii(l u.seil for the joint ))iirpiiHeH of theluinband miil wife, 
 or even in the huHhand's ImsincHH, does not eonstitiitt; a dclit of his lo the 
 wife; Heresford v. Arpiagli (1H44) l.'J Sim. (i4H: ( 'aton v. Hideout (18411) I 
 .Vine. & (i. .")!«» ; Hiee v. Hice (18!l<t) :J1 (). H. ."lil. unless there is ch'ar evidence 
 that lier huHliaiid reeeived the ineonu' liy way of loan ; Alexander v. Harnhill 
 (1888)21 L. H. Ir. fill. Investments of income reeeived hy the luisliaiid with 
 the wife's assent will helong to him ; Kdwards v. (,'heyne (1888) IH -App- ''as. 
 •iaa. A wife who hasas.sented to the trustee of se])arate |)i-operly paying the 
 income to hei' hushand, cannot maintain an action against the trnstee : I'ayne 
 V. Little ( 18.')8) "id Heav. 1. It makes no di(l'ercM<(^ if tlie hushand liiinself is 
 the trustee; Caton v. Hideout (184!l) 1 Mae. Hi (,. ."i'lit. or that the wife is 
 restrained from anticii)ation ; Howley v. LInwin ( I8.'i.'i) 'J K.it.l. llts ; Kdwards 
 V. (Jheyne (1888) \'\ App. Cas. 38") ; or that the inconu' remains unspent in 
 the hushand's hands ; Hertwford v. Armagli (18441 I'A Sim. (!4.S. There is a 
 great ditierenc^e hetween the receipt of tlu; income, and of the corpus, fn the 
 latter ca.so the onus of proof of a gift hy the wife to tlu' lui-.liand is upon him, 
 anil nnist he clearly estal)lishe<l, or else the hiishanil will he held to he a 
 trustee for the wife;" Alexander v. Harnhill (1H8H| -.'l L. H. Ir. ."ill ; (irien \. 
 Carlill (1877) 4 (Jh. 1). 882 ; He Flamante, Wood v. Cook (188!»)4(» (Jh. D. 
 401 ; Re Halke(18S!») (iO L. T. tifW ; and the Statute of Limitations will ho no 
 flefeneo if the money is unaccounted for; Wa-sell \. Laggatl (18!I6) 1 Ch. 
 .■504; Briggs v. Wil.son t,si)7) 24 A. H. .Vil ; uidc.«s the hushand could sliow 
 that ho reeeived it hj' way of loan or can bring himself within s. 32 of the 
 Trustee Act ; milr pp. 3!).'}-4. An action l>y a wife is not maintainahle against 
 another woman, for the alienation of the hushand's ati'ections ; such an action 
 is not one for the jirotection or security of her se])aratc pi-operty ; Lellis v. 
 Lambert (1807) 24 A. H. (m.S. She may, however, sue tm personal injuries to 
 herself, in cases in which, heforc the act, she would have iiad a right of action, 
 to which action the hushand was a noeossarv party ; e.g. foi' lihcl ; Spahr v. 
 Bean (188!)) 18 (). H. 70 ; for a.ssault and lihel ; Weldon v. Winslow (1884), 
 13 (.). H. I). 784. The damages recoveied will he her se|(aiate ])roperty ; s. 3 
 (2). Hvon when the hushand joins in an action for ))ersonal injiiries to the 
 wife, the damages awarded to her will lie her separate estate ; Heai^ley v. 
 Honey (1801) i i). 1!. .")(!!). 
 
 Diaputea between husband and wife. Under s. U) disputes as to projieity 
 between a hushand and wife nuiy be settled in a sunnnary manner. A leference 
 may be directed; Phillips v. 'Phillips (1888) 13 P. D. 220: but an order for 
 delivi 1 \ must be made by the (Jmiit or Jii(lge ; Wood v. Wood (188!)) 14 P. 
 D. \.'u. Money expended by husband or wife on the j)roperty of the other, 
 will enure to ti l>enefit of the own.-r of the property, unles.s expended uniier 
 mistake, when .i lien may be rleclar;d ; Xee.som v. Clark.son (1844) 4 Hare 97: 
 Till V. Till (1887) l.")(). H. 133. 
 
 Statute of Limitations. When power was given to a married woman to 
 nuiintain actions, slic became discovert, within the meaning of the Statute of 
 Limitations ; Lowe v. Fox (1885) l.")(,). 15. IX 667 ; Weldon v. Ne.d(1884) 'A L. 
 T. 28!). She must, therefore, bring her action within the same time as a 
 fetne xolc ; Re Laws, Laws v. Laws (1881) 28 (Jr. 382, but see (,'arioll v. Fitz- 
 gerald (1880) 5 A. R. 322. In actions against a married woman, the ('ourt 
 will act on the analogy of the Statutes of Limitations, so that an action by a 
 husband against his wife for money loaned, would be barred at the same time 
 vs an action against a stranger: He ffastings. llallett v. Hastings (1KS7) 
 3.". Ch. 1). !)4. 
 
 Injunction. A married W(jnian cannot be restrained by injunction, fiom 
 disposing of her separate estate ; Robinson v. Pickering (1881) 16 Ch. T). 660; 
 Merchants' Hank v. Hell (1881) 2!) C,. 413. 
 
 Commitment to Gaol. A marriofl woman may be connuittcd to gaol, for 
 refusal to atten<l for examinatiim as a judgment debtor; Melro))olitan Loan k 
 S. Co. V. Mara (1880)8 P. H. 3.")5 ; Toar.son v. Kssery (1888) 12 P. H. 4(i(i : 
 Watson v. Ontario Supply Co. (18!)0) 14 P. H. 90 ; He Teasdall v. Urach 
 (1898) 18 P. H. 104, hut see Re McLeod v. Kmigh (1888) 13 P. R. 4.">0. 
 
 Death of wife. Upon the death of the married womau, the Court will ad- 
 minister her sej)arate jtroporty ; Merchants' Haidi v. Bell (1881) 2!) (Jr. 413. 
 The husband is liable for her debts, to the extent of i)roperty taken by him 
 jure mnrili ; Surman v. Wharton (18!)1) 1 Q. li. 401. Where a hn.-iband, on 
 marriage, renounces any claim to the property of the wife, he « .1 not be 
 entitled on intestacy, to administration thereof, or to any share therein ; 
 Dorsey v. I)or.sey (1899) .30 O. H. 183. 
 
.Sec. 4. 
 
 UIOHT TO DOWEK. 
 
 Chap. 104. 
 
 789 
 
 U. •-'•24: 
 
 K. T2(i: 
 
 fstiilo ro- 
 
 and wife, 
 
 is to the 
 
 (IStlt) I 
 
 (•\ idi'tici' 
 
 ISarniiiil 
 
 Kiiul witli 
 
 \\>\). (Jns. 
 
 iiviiig the 
 
 I'iiyiu; 
 
 CHAPTER 164. 
 
 All Act respecting Dower. 
 
 SUdHT 'I'lTl.K, S. 1. 
 
 DtiWER OIT (JF KyUITABLK ESTATEM, 
 8. '2. 
 
 Dower whkkk hi'sham' mad a 
 
 RKIHT i)K ENTRY, S. .'i 
 
 Dower not ki;('(jveraule out of 
 
 WILD LANllS, H. 4. 
 DoWEK IN CKRTAIN MININ(. I.AXKS, 
 8. 5. 
 
 No DowEtt ad odium ecchuM or ex 
 a^seiiMii jxiiris, h. 0. 
 
 Effect of iiar of howeu in mort- 
 
 llAOES, ss. 7-10. 
 Provisions for convevino free 
 
 KKO.M DOWF.K where WIFE KISKN- 
 TITI.KI" OR A M'NATIC, 88. 11-17. 
 ReoISTRATIoN ANI> form of ORDERS, 
 S8. 18-1>1. 
 
 Certain hkeks to have the effect 
 
 OF llARKIXd DOWKR, S. 22. 
 
 HER MAJESTY, by and witli the advice and consent of 
 the Logishitive As.senibly of the Province of Ontario, 
 enacts as foliow.s : — 
 
 I. This Act may b(( cited as "The Dower Act," 59 V. «l>ort title, 
 c. 40, s. 1. 
 
 *i. Wher(! a luisband dies beneficially entitled to any land for Dower out of 
 an interest which does not entitle his widow to dower at pg^a'tes'''' 
 common law, and such interest, whether wholly <^quitable or 
 partly legal and partly equitable, is an estate of inheritance in 
 posse.ssion, or e([ual to an estate of inheritance in ])osses.sion, 
 (other than an estate in joint tenancy), then his widow shall 
 be entitled to dower out of such land. R. S. O. 1887, 
 c. 138, s. 1. 
 
 li. Where a husbiind lias been entitled to a right of entry or Dower where 
 action in any land, and his widow would be entitled to dower |?j''j|'f^"j' '"t** * 
 out of the same if he had recovered posse.ssion thereof, .she shall 
 be entitled to dower out of the same although her husband did 
 not reoo%'er possession thereof; but such dower shall be .sued 
 for or obtained within the period during which .such right of 
 entry or action might be enforced. R. S. 0. 1887, c. 183, s. 2. 
 
 4. Dower shall not be 5'ecoverable out of any .separate and Dowor not re- 
 distinct lot, tract or parcel of land, which, at the time of the ^?T®'"'jJ'!® ""* 
 alienation by the hu.sband or at the time of his death, if he stpte of nature 
 died .seised thereof, was in a state of nature, and unimproved "'^^" aliened, 
 by clearing, fencing or otherwise for the purposes of cultivation 
 or occupation ; but this shall not restrict or diminish the right 
 to have woodland assigned to the dowress under section 
 
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 IMAGE FVALUATION 
 TEST TARGET (MT-3) 
 
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 Photographic 
 
 Sciences 
 
 Corporation 
 
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 33 WIST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716)872-4503 
 
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790 
 
 Chap. 164. 
 
 RIGHT TO DOWEU. 
 
 Sec. 
 
 Rev. Stat. 9 of The Doxoer Procedure Act, from which it shall be 
 '^' lawful for her to take tirewood nece8,sary for her own use, 
 
 ami timber for fencing the other portions of land assigned 
 to her of the sa,mo lot, tract or parcel. R. S. O. 1887, c. 133, s. 3. 
 
 Dower in land 5. No dower shall be recoverable out of any land which has 
 Slbin^Land. ^^^^ heretofore or shall be hereafter granted by the Crown as 
 mining land in case such land is on or after the 31st day of 
 December, 1897, conveyed to the husband of the person claim- 
 ing dower and oUch husband does not die entitled thereto. 
 60 V. c. 15, s. 6. 
 
 
 
 C 
 
 2 
 
 f 
 
 5 
 
 > 
 
 < 
 
 Certain dower 
 abolished. 
 
 Effect of bar 
 of dower in 
 mortgages. 
 
 Wife entitled 
 to dower 
 in surplus of 
 purchase 
 money arising 
 from sale 
 under mort- 
 gage. 
 
 Where made 
 on or after 
 16th April, 
 lj)96. 
 
 (». No widow shall be entitled to dower ad ostium ecclemc, 
 or dower ex assensu patris. R. S. 0. 1887, c. 133, s. 4. 
 
 7. — (1) No bar of dower contained in any mortgage, or other 
 instrument intended to have the effect of a mortgage or other 
 Security, upon real estate, shall operate to bar such dower to 
 any greater extent than shall be necessary to give full effect to 
 the rights of the mortgagee or grantee under such instrument. 
 R. S. O. 1887, c. 133, s. 5. 
 
 (2) In the event of a sale of th„ land comprised in such 
 mortgage or other instrument, under any power of sale con- 
 tained therein or under any legal process, the wife of the mort- 
 gagor or grantor who shall have so barred her dower in such 
 lands, shall be entitled to dower in any surplus of the purchase 
 money arising from such sale, whicli may remain after satis- 
 faction of the claim of the mortgagee or grantee, to the same 
 extent as she would have been entitled to dower in the land 
 from which such surplus purchase money shall be derived had 
 the same not been .sold. R. S. O. 1887, c 138, s. G. 
 
 [As to right to dower under The Land Titles Act lohereUtnd, 
 acquired subject to a charge, or where owner after charging 
 land marries, see Gap. 138, s. oO.] 
 
 8. — (1) Iri the event of the land, comprised in any mortgage 
 or other instrument executed on or after the 16th day of April, 
 1895, b)' which the mortgagor's wife barred l.er dower, being sold 
 under any power of sale contained in the mortgage, or under 
 any legal process, tlie wife shall be entitled to dower in any 
 surplus of the purchase money arising from such sale, which 
 may remain after satisfaction of the claim of the mort- 
 gagee or grantee, to the same extent as .she would have boen 
 entitled to dower in the land had the same not been sold ; 
 and the amount to which she is entitled shall be calculated on 
 the basis of the amount realized from the sale of the land, and 
 not upon the amount realized from the sale over and above the 
 amount of the mortgage only. 
 
 (2) This section .shall not apply where the mortgage is for 
 the unpaid purchase mor • of the land; and nothing in tlii.s 
 section contained shall be ^^onstrued to affect, by implicati(jn or 
 
Sec. 12 (2). 
 
 UIGHT TO DOWEK. 
 
 Chap. 164. 
 
 791 
 
 be 
 :ne(l 
 
 I'slll', 
 
 otherwise, any ([uestion in the case of mortgages executed 
 before the said 16th day of April, 1895. 58 V. c. 25, s. 3. 
 
 *>. — (1) A mortgagee or other person holding any money out of Payment of 
 which a married woman shall be dowable under the preceding J!^„"t.^ '" " 
 two sections of this Act may pay the same into the High Court 
 to the credit of such married woman and the other peisons 
 interested theiein. 
 
 (2) The High Court or a Judge thereof, may on a summary Order for se- 
 application by petition or motion, make such order for securing „" ""^p"^^* 
 ''^■'^ i'^^t of dower of any married woman, in any money out 
 • ' whiiih she shall be dowable, as may be just. R. S. O. 
 Ib87, c. l.?3, s. 7. 
 
 10. A widow shall not be entitled to take her interest in Widow's 
 money under sections 7 and 8 of this Act, and in addition ® '''^*'""' 
 thereto a share of the money as personal estate. R. S. 0. 1887, 
 c. 133, s. 8. 
 
 Where wife ig 
 a lunatic con- 
 fined in an 
 asylum and 
 husband dur- 
 ing such con- 
 finement ac- 
 (juireH land. 
 
 husband. 
 
 1 1. Where a person, whose wife is a lunatic and confined 
 as such in a public lunatic asylum in this Province, has here- 
 tofore while his wife was so confined, become the owner of 
 land or hereafter while she is so confined becomes the owner 
 of land, such person may sell and convey or mortgage such 
 land, freed and discharged of any claim of his said wife for 
 dower therein, but no such conveyance or mortgage shall be 
 made after the discharge of the said wife from the said 
 asylum. 59 V. c. 40, s. 5. 
 
 1 'i. — (1) Where the wife of an owner of land has been living Application in 
 apart from him for two years under such circumstances as by ""^^eor^eUfr^e 
 law disentitle her to alimony, and such owner is desirous of sell- from dowe. 
 ing or mortgaging the land free from dower, he may apply to a where wife 
 Judge of the High Court, and, if the Judge approves, he may, by from her 
 an order to be made by him in a summary way, upon 
 such evidence as to the Judge seems meet, and either ex parte 
 or upon notice (to be served personally unless the Judge other- 
 wise directs), dispense with the concurrence of the wife for 
 the purpose of barring her dower, and he shall (unless the wife 
 has been so living apart from her husband untler such circum- 
 stances as disentitle her to dower)ascertain and state in the order 
 the vjtlue of such dower, and order such amount to remain a 
 charge upon the property, or to be secured otherwise for the 
 wife's benefit, oi- to be paid and applied for her benefit as he 
 deems best ; and thereupon a conveyance or mortgage by 
 the husband, expressed to be free from his wife's dower, 
 shall, subject to any terms mentioned in the order, be sufficient 
 to bar hei" right thereto, as if she had duly executed a deed 
 jointly with her husband for that purpose. 
 
 (2) This section shall extend to any case in which an 
 agreement for sale had been made, and a conveyance executed 
 
792 
 
 Chap. 164. 
 
 RIGHT TO DOWER. 
 
 Sec. 12 (2). 
 
 by the husband before the 5th day of March, 1880, and part of the 
 purcliase money retained by the purchaser on account of dower 
 oi" an indemnity given against such dower. R. S. O. 1887, 
 c. i;?3, s. 9. 
 
 
 
 c 
 z 
 
 < 
 
 r 
 
 X 
 V. 
 
 p 
 > 
 
 c 
 
 > 
 
 < 
 
 Application 
 where wife 
 is a lunatic 
 confined in 
 an asylum. 
 
 Dower to b(> 
 ascertained 
 and to be 
 charge on land 
 or secured for 
 wife's benefit. 
 
 1 IV — (1) Where an owner of land whose wife is a lunatic, or of 
 unsound mind, and confined as such in a lunatic asylum, is 
 desirous of selling or mortgaging the land tree i'rom dower, he 
 may apply in that behalf to the Judge of the County Court of the 
 county in which he resides or to a Judge of the High Court, and 
 if the Judge approves, he maj', by an order to be made by him 
 in a summary way, upon such evidence as to the Judge seems 
 meet, and either ex vavte or upon such notice as he may deem 
 requisite, dispense with tlie concurrence of the wife for the 
 purpose of barring her dower, and he shall also ascertain and 
 state in the order the value of such dower, and order such 
 amount to remain a charg'j upon the property, or to be secured 
 otherwise for the wile's benefit, or to be paid and applied for 
 her benefit as he deemsbest.and thereupon a conveyance or mort- 
 gage by the husband, expressed to be free from his wife's dower, 
 .shall, .subject to the terms and conditions mentioned in the 
 order, be sufficient to bar her right thereto, as if .she were of 
 sound mind, and had duly executed a deed jointly with her 
 husband foi' that purpose. 
 
 (2) On every such application the Judge shall be entitled to 
 his own use to a fee of !i?o, and no other fee or charge 
 of any kind shall be payable in respect thereof. 
 
 (3) This section shall apply to ajiy case in which an agree- 
 ment for sale has been made and a conveyance has been exe- 
 cuted by the husband, and any part of the purchase money 
 has been retained by the purchaser on account of dower, and 
 to any case in which an indemnity has been given against the 
 dower of the wife. R. S. O. 1887, c. 133, ,s. 10. 
 
 Ai)|>iication 14. — (1) In case the gaol surgeon of any county or district 
 
 r**" t^ ^b'^t '* ^" which a married woman resides, and another medical prac- 
 
 not confined titiouer to be named by the Judge, shall each certify (Form A) 
 
 in an asylum, that he has personally examined such married woman and that 
 
 he is of opinion tliat .she is insane, and the Judge of the County 
 
 Court of the county in which such married woman resides, or 
 
 a Judge of the High (vourt, also certifies (Form B) that lie 
 
 has personally examined such married woman, and that from 
 
 such examination and from the evidence adduced before him, 
 
 if such Judge thinks it expedient to hear evidence, he is 
 
 of opinion that such marrii'd women is insane, the said Judge 
 
 may make the like order as by the preceding section of thisAct,is 
 
 authorized in the case of a married woman of unsound ic.ind 
 
 who is confined in an asylum for the insane. 
 
 (2) The examination and certificates required by this section 
 mu.st all be made and granted witliin a period of one month, 
 
(2). 
 
 Sec. 18. 
 
 RIGHT TO DOWEK. 
 
 Chap. 164. 
 
 798 
 
 or sucli certilicates shall not be acted upon by the said Judge, 
 and the application shall not be entertained unless it is made 
 within one month of the day upon which the la.st of such 
 examinations took place. R. S. 0. 1887, c. 183, s. 11. 
 
 1 5. In case a Judf^e makes an order under any of the precod- SubHcquent 
 ing three sections of this Act, with i-eference to any parcel of land, j'^j^^^'^^o 
 he may afterwards make orders in respect of other sales or other aale-s or 
 mortgages, either on the like evidence as is x-equired for the mortjirageR. 
 first application, or on any other evidence which may satisfy 
 him, of the continued in.sanitv of the married woman. R. S. O. 
 1887.0. 133. s. 12. 
 
 lO. Sections 12, 13, 14 and 15 of this Act shall apply to Application of 
 any case where any persoji owns, or has the right to sell or ***• ^^"^^• 
 mortgage (whether as trustee or otherwise), land which 
 is subject to dower, whefcliei' such dower is inchoate or 
 complete, and whether the person Jippljqng is or is not the 
 husband of the dowress. R. S. 0. 1 887, c. 133, s. 13. 
 
 Where wife 
 of vendor or 
 mortgagor lias 
 been living 
 apart from 
 husband for 
 five years. 
 
 II. — (1) Where the wife of an owner of land has been liv- 
 ing a])art from her husband for five years or more, and the 
 husband sells and conveys, or luis sold and conveyed the land, 
 or mortgages, or has mortgaged the same, the wife not joining 
 in the conveyance or mortgage, and the purchaser or mort- 
 gagee having no notice that the grantor (n- mortgagor had a 
 wife living at the time, such purchaser or mortgagee, may 
 apply to a Judge of the High Coiu't and have the same relief, 
 or to the same effect, and subject to the same conditions, and 
 by the same proceedings, as provided for a husband of a luna- 
 tic wife imder this Act. 59 V. c. 40, s. 2, 
 
 (2) The rule and practice shall be tlie .same where the hus- 
 band is living with or recognizing anotlier woman as his wife, 
 the purchaser or mortgagee having no notice of her not being 
 his wife and no notice that the grantor or mortgagor had a 
 rightful wife with wliom lie is not living. 59 V. c. 40, s. 3. 
 
 (3) Any person claiming un<lti' the grantee or mortgagee 
 shall be entitled to apply in like manner and obtain like i-elief 
 on the foundation of the right of the said grantee or mort- 
 gagee in that behalf, or of the applicant's own interest having 
 been acquired by purchase foi- \alue in good faith without 
 notice of the owner aforesaid having had a wile at the 
 time of the conveyance or mortgage, and such owner may 
 apply in like manner and have like relief. 59 V. c. 40, s. 4. 
 
 18. The order may be in duplicate (U' in as many pai'ts as RegiHtration 
 are nece.ssaiy, and shall be signed by the Judge, and may V)e "ro^r. 
 registered in the registry office of the registry divisicm 
 wherein the lands to which the same relates are situate, upon 
 its production and deposit, without any proof thereof ; and 
 
 Where hus- 
 band is living 
 witji another 
 woman as hia 
 wife. 
 
 Relief of tier- 
 Hone claiming 
 under grantee 
 or mortgagee, 
 
7i»4 
 
 Chap. 164. 
 
 lilOHT TO DOWER. 
 
 Sec. 18. 
 
 such registration may take place either before or after the exe- 
 cution of the deed made in pursuance of such order. R. S. O. 
 1887, 0. 183, s. 14. 
 
 
 
 c 
 
 < 
 
 r 
 
 E 
 
 09 
 
 > 
 
 < 
 
 Order may be | J>. The order may, if desired, be indoivsed or written upon 
 deed"**^ "" *'^® ^^^^ ^^ which the same relates, in which case it shall be 
 registered as part of the deed. R. S. O. 1<S87, c. 133, s. 15. 
 
 Fee for 20. For the registration of the order including all neces.sary 
 
 registration of entries and certificates, the registrar shall be entitled to a fee 
 of $1, unless tlie order is indorsed or written upon the deed in 
 which case no fee shall be payable in respect of the registra- 
 tion thereof. R. S. O. 1887, c. 133, s. 16. 
 
 Description of '-{1. If the Order is indorsed or written upon the deed to 
 when order*'' be made in pursuance thereof, the real estate to which the same 
 indorsed on relates mav be described in the order by reference to the 
 ^^^^- description contained in the deed. R. S. 0. 1S»7, c 133, s. 17. 
 
 Case where *i'i. — (1) No action of dower shall be maintained, in case 
 
 maintarnable *'^^ dowress has joined in a deed to convey the land, or to 
 , release her dower therein, to a purchaser for value, though 
 the acknowledgment I'ecpiired by law at the time n\ay not have 
 been made or taken, or though there may have been an 
 informality in the making, taking or certifying such 
 acknowledgment. R. S. 0. 1887, c. 56, a 2. 
 
 Deeds barring 
 dower before 
 2nd March, 
 1877, con- 
 firmed. 
 
 Wife joinin^r 
 in deed with- 
 out reloasing 
 dower. 
 
 Deeds execut- 
 ed before 16th 
 April, 1896. 
 
 (2) Nor shall an action ot dower be maintained where a 
 husband ha^ before the 2nd day of March, 1877, duly conveyed 
 land of which he was owner, and his wife has before the said 
 day executed a deed or conveyance for the purpose of bari'ing 
 her dower, notwithstanding her husband is not a partj' to buch 
 deed or conveyance, and the said deed or conveya,nce shall 1)6 
 taken and adjudged to lie valid and effectual to have barred her 
 dower in the lands in which such deed or conveyance professed 
 to bar dower, notwithstanding the absence oi' want of a 
 certificate touching her consent to be barred of her dower, and 
 notwithstanding any irregularity, informality, or defect in the 
 certificate (if any), and notwithstanding that such deed or con- 
 veyance may not have been executed, acknowledged or certi- 
 fied, as required by any Act on or bei'ore the said day in force, 
 respecting the barring of dower. R. S.O. 1887, c. 133, s. 18. 
 
 (3) Nor shall an action of dower be maintained where a wife* 
 on or after the 16th day of April, 1895, has joined or hereafter 
 joins in a deed purporting to convey the land, or has signed or 
 signs, otherwise than as a witness, a deed by which her hus- 
 band conveys or purports to convey the land, notwithstanding 
 that the deed in either case contains no words purporting to 
 convey or release her dower or other estate or interest in the 
 land. 58 V. c. 25, s. 1 
 
 (4) Nor shall an action of dower be maintained where the 
 wife did prior to the said 16th day of April, 1895, join in or 
 
Form B. 
 
 UIGHT TO DOWER. 
 
 Chap. 164. 
 
 796 
 
 siuy 
 ii fee 
 
 sign any such deed ; but this subsection is not to ~be construed as 
 prejudicing or affecting in any way the rights of third persons 
 claiming the land or some interest therein under a subsequent 
 deed or mortgage executed by the wife prior to the said 16th 
 day of April, 1895, and containing a conveyance or release of 
 her dower or other estate or interest. 58 V. c. 25, s. 2. 
 
 [For right of married women to convey or release dower, see 
 Cap. 165.] 
 
 FORM A. 
 
 (Section IJf.) 
 
 . case 
 or to 
 longh 
 , have 
 en an 
 such 
 
 CERTIFICATE OF MEUICAI, I'RACTniONKR. 
 
 I, the undersijjfiied (/icre setfmih the qnalificttion or 
 
 degree of the person ceHiftjimf : for e.i'amph, '''Licentiate of the Medical 
 Board," ''M.D, of the f/Itiwr.si^/ -if Toronto," etc.) a 
 
 Icg.'illy (|ualitied Medical Practitioner, residing and practising at 
 
 in the County of do hereby certify that I, on the 
 
 day of A.D. 18 , at 
 
 in the County of separately from any other Medical 
 
 Practitioner, personally examined A. B of the Township of 
 in thf; Oounty of wife of C. B., of the Township of 
 
 in tho County of and I further certify that the said 
 
 A B. is insane and that I hivve formed this opinion upon the following 
 grounds namely : {here state the facta vpiia which the CeHificatc in based). 
 
 Signed this day of 
 
 A.D. 18 , at in the County of 
 
 R. S. O. 1887, c. l:38. Form A. 
 
 FORM B. 
 
 (Section 14.) 
 
 CERTIFICATE OK .HipfiK. 
 
 Province of Ontario. \ 
 County of / 
 
 I, the undersigned, E. F. 
 Judge of the County Court of the County of 
 <lo hereby certify that I on the day of 
 
 A.D. 18 , personally examined A. B., of the of 
 
 in the County of wife <»f C B. of the of 
 
 in the County of and I do hereby further 
 
 certify that from such personal examination (and from the evidence of 
 <T. II. and J. K. adduced before me, if evidence has been taken by the jud^e) 
 1 am of opinion tliat the said A. B. is insane. 
 
 S'gned this day of A.D. 18 , at 
 
 in the County of 
 
 R. S. 0. 1887, c. 133, Form B. 
 
796 
 
 RIGHT TO DOWER. 
 
 NOTES. 
 
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 ir. 
 
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 Objects Of Act. The principal objects of tliu jK.t are:— 
 
 (a) To give dower out of e(iuital>!e estates. 
 
 (b) To (lispensc witli the neeessit}' of actual seisin. 
 
 (c) To take away the riglit to dower from mining hinds. 
 
 (d) To preserve tlie riglit of the wife of a mortgagor, wli< 
 dower, and to define her rights. 
 
 ((•) To enable land.s to be sold free from tlower. 
 
 Common Law Dower. Dower, at common law, is an estate for life, to whi<h 
 a wife is entitled after tlie decease of her liusl)an<l, in the tliird jiart of eve? y 
 estate of inheritance, of which her husljand was solely seised, at any time dur- 
 ing the coverture ; Co. Litt. 32 a. 
 
 Seisin Necessary. It is necessary (except where the dower is ont of an 
 ecpiitablo <stale) that tile hus))and should be seised at some time during the 
 coverture. A seisin in law was sutlicient ; Litt s. 681. Hut wherever actual 
 entry was necessary to give ettect to a conveyance, e. g. an exchange at 
 common law, (sec ante p. 58!!) the wife Ma? not entitled to dower, unless 
 the husband iiad entered ; (,'ameron on Dower (j.12'2. A right of entry is now 
 sufticient ; s. 3. As a joint tenant is not s(!ised in severalty, his widow is not 
 entitled to dower; Haskill v. Frascr (ISO'J) 12 C. P. 383. Where a liusband 
 dies entitled to a reversion expectant on a life (.'state, tliere is no dower; 
 Leitcii V. McLellan (1883) 2 O. R. .")87 AVhere a imrclmser of land subject to 
 a mo tgage, paid off and obtained a discliarge of the mortgage in favor of his 
 vendor, and on the same day receivec' his conveyance and gave a mortgage 
 back, and all three documents were subs('i|uently registered in the foi-egoing 
 order, it was held that all tliat passt^d by the conveyance and mortgage, was 
 the equity of ledemption, that by the registration of the discharge the legal 
 estate became vested in the vendor-mortgagee, and that the purchaser was 
 never even momentarilv seise<l, so as to entitle his wife to dower ; He Luck- 
 hardt (18!)S) 2!) O. K. ill ; .see 34 C. L. J. 399. 
 
 Equitable Estates. Where the husliand lias never been seised during the 
 coverture of a legal estate in the land, his widow is not ent'tled to dower, 
 unless he dies benefically entitled ; s. 2. If at the time of the marriage, the 
 land is subject to a mortgage in fee, and so eontinucs during the coverture, 
 dower will be allowed only out of tliee(|uity of rerlemption ; Dobliin v. Dolibin 
 (1886) 11 (). 1-^. 534, and if the husband's" title passes from him before his 
 <leath, his widow is not (entitled to dower; Dixon v. Savillc (I7S3) 1 Hro. (,'. 
 i'. .TiO; and the rule is the .same if the husband, during coverture, ac(|uiies an 
 equity of redemption and parts with it ; (lardnei- v. Brown (1890) Mt (). R. 
 2<>2; or the land is sold under the mortgage: He Luckbardt (1898)29 O. R. 
 111. But she is entitled to dower if the husband dies beneticially entitled ; s. 
 2. Dower in ccjuitable estates, attaches at the lime of the husband's 
 death, and not lieforc ; Re Croskery (1888) Hi (). R. 207, 213. Tin; widow of 
 a purchaser of mortgaged lands, who dies benelically entitled, has dower out 
 of the surplus; Thorpe v. Richards ( 1869) 1.") (Jr. 403. The widow of a man 
 who lias given an absolute deed with a right of redoniption lias an e(|uitalile 
 right to (lower; Mcintosh v. Wood (1868) I.''. (Jr. 92. 
 
 Mortgaged Lands. So soon as the hii.sband becomes seised, an inchoate 
 right of dower attaches. The fact that he immediately gives bat'k a mortgage 
 for unpaid purchase money, will not jircvent the wife's right from attaching ; 
 Potts V. Myers (18.") 14 U. C. tl. 499 ; Smith v. Norton (1861)7 L. J. 263 ; 
 Lynch V. O'Hara (1851) 6 t;. P. 2.')9. But as between the widow and the 
 mortgagee, he would probably be entitled to priority, by virtue of his vendor's 
 lien for unpaid purcha.se money; Nevitt v. McMurray (1886) 14 A. R. 126. 
 
 Where a wife has (since lOth March, 1879,) Martiudale v. Clarkson (1880) 6 
 A. R. 1 ; Re Hcwish (1889) 17 0. R. 454) joined in a mortgage to bar dower, 
 the dower is not larred to any greater extent than isnecessary to give full ettect 
 to t!ie mortgage ; s. 7. The section adiqits the (lecisi(niH of the Ontario 
 
 
RIGHT TO DOWER. 
 
 797 
 
 I'll lier 
 
 licli 
 
 CourlH ill SliL'iijiiiid V. Slic|)pnr(l (18(57) 14 Or. 174 ; Korest v. Lavcock (1S7I) 
 18 (!r. 611 ; wliicli, however, wore at variance witli the Hiil)se<iiRiit deoisioiiH 
 in Dawson V. Hank of Whiteiiiiveii (1S77)'(> Ch. I). 218 ; Hluck v. Fountain 
 (1870) -23 Or. 174; ami Kleiiiy v. I'riiigle (1878) -iO Or. ()7. 
 
 The huHliand cannot defciit the riglit hy alienation, i. e. lie need not die 
 benefically entitled ; l{e (Jroskery (1888) l(i (). R. 207; Martiiidale v. Clarkson 
 (1880) () A. R. 1,0; and tiie rigiit may form a valuahle consideration for a 
 conveyance to tlie wife; Heavis v. McOiiire (1882) 7 A. R. 704; Morris v. 
 Martin (18!M)) 19 0. R. 004, but see Calvert v. Black (1880) 8 ]'. R. 25.'); 
 Smart v. Soreiisoii (188,5) !». 0. R. ()40. 
 
 The right is preserved to the extent of tlie surplus, in the event of tlie 
 property heing sold in tlie lifetime of the mortgagor ; s. 7 (2). Without the 
 act the widow hecNime entitled to dower out of tiit^ e()uity of redemption 
 remaining in the liushaiid at ids deatii. If his estate was solvent, siie was, as 
 against his rc]>resentatives, entitled to have the mortgage pai<l ; Slieppard v. 
 Mhoppanl (1807) 14 Or. 174, liut her riglit did not extend to tlie exoneration 
 of the estate from the mortgage, out of either the personal estate or other 
 real estate, left liy her insolvent hushand at his deatli ; Wiiite v. Hastedo 
 (180!)) 15<ir. .")40; Baker v. Dawharn (1872) 190r. U.S. She was, however, 
 to tiio extent of the c(|uity of redemption, entitled to priority over the 
 creditors; Re Morris (1872) 8 C. L. J. 284. The same principles would 
 probably now be applied in tiie ndmiiiistration of the estate of a deceased 
 mortgagor. 
 
 Extent of Right. The extent of the widow's right, is to be measured by the 
 purpose for which the mortgage is given. If it is given for unpaid purchase 
 moiiev, dower is allowable only out of the surplus ; t'anipbell v. Roval t!ana- 
 ilian Bank (1872) lit Or. :W4; Pratt v. Bunnell (1801) 21 0. R. 1 : Re" Hopkins, 
 Barnes v. Hopkins (1870) 8 P. R. 100. But if it is made to seinire a loan, the 
 widow is entitled to dower out of the surplus, computed on wliat would be 
 the full value of the land if unencumbered; Doan v. Davis (1870) 2;{ Or. 207; 
 Re Robertson, Robertson v. Robertson (1877) 24 Or. 442; 2.". (ir. 270, 486; 
 Re Hague, Trader's Bank v. Murray (1887) 14 O. R. 600; Re Crcskery (1888) 
 16 O. R. 207 ; < Jemmill v. Nelligan (1805) 20 (). R. 7 ; SO Martindale v. Clarkdon 
 (1880) 6 A. R. 1, 0. 
 
 Section tl, enacted in 1895, must be deemed to merely declare the law as it 
 theretofore existed, ac(M)rdiiig to the cases just cited. 
 
 It is advisable to pay the sur|)lus into Court; Re Croskei-y (1888) 16 (). R. 
 207. If it is ascertained that the wife has no inchoate right, it may be paid 
 out to the husband or to his creditorsor other parsons having ciiarges thereon; 
 Re Luckhardt (1898) 29 O. R. HI. Nothing can bo paid out to the wife dur- 
 ing the husband's life, as she is not entitled to dower unle.ss she survives him. 
 
 Right of Redemption. The wife of a inortgagf)r who lias joined in a mortgage 
 to bar her dower, lias the rigiit to redeem the mortgage in her husband's life- 
 time ; Bhmg v. Fitzgerald (1893) 15 P. R. 467 ; Ayerst v. McClean (1890) 14 
 !'. R. 15, but rice Casner v. Haight(1884) 6 0. R. 451. 
 
 Contribution to Encumbrance. When a widow is dowable only out of an 
 I'ljuity of redemption, she must, if she seeks more than dower in the value of 
 the estate, after deducting tiie amount of the mortgage, contribute ratably to 
 the payment of the encunilirance ; Dobbin v. Dobbin (l^l^O) 11 O. R. 534. The 
 yearly value of tiie dower is ascertained by deducting one-third of the yearly 
 interest on tlie mortgage, from one-third of the rents and profits; ih. 
 
 Arrears of Equitable Dower. A widow entitled to etpiitable dower, is not 
 iMititled to arrears as of right, but only upon the equitable consi<leration of the 
 (!ourt, whicii will be exc" 'ised in her favor, ,y not reipiiring her to account 
 for all the rents receive(. d jmyablc by her. Slie .should be allowed one- 
 third of what remains after tlie rents have been properly applied, in meeting 
 necessary outlay and expenditure, in respect of the land and the building.^ 
 thereon; Re Percy, Stewart v. Percy (1886) 110. R. 374. 
 
 Dower Abolished In What Cases. Dower is abolished in land wlii(!h was in a 
 state of nature \.lieii aliened by the husband or at the time cf his death, if he 
 died seised; s. 4. Dower ml osfiinii ici-hMiai' i. c. where a, tenant in fee, openly 
 at the church door, after afhance and troth plighted, endowed his wife with the 
 whole or some imrt of his lands and Dower i.v nsxi'uxu jin/ri-i, where in the 
 same cireumstances, he endowed his wife with part of ihis father's land with 
 the latter's consent, are abolished ; s. 0. 
 
798 
 
 RIGHT TO DOWEll. 
 
 Q 
 J. 
 
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 Landh (k'dic.itfd for a Btreet or pultlic highway, are not 8iil)jeet to any 
 I'laini for dowur hy the widow of tlio person by whom they wore dedicated ; 
 it. S. (). c. 22.'), H. ri()2. 
 
 Bar by Contract. When' tlic \vife'.s tniHtoes in a separation deed, covenantcii 
 tliat she woidil reiease lier dower in any hind.s whieli iior liusliand niigiit there- 
 after ae(inire, K'le was del)arred from claiming dower; Kves v. liootii (IHiHt) ltd 
 (). K. (iSO : .see also Toronto General Trnsts Co. v. Quin (1«!»4) 2") (). H. 2")0. 
 
 Conveyance free from Dower. Inapplications to he allowed to eonvey free from 
 dower, great ciue shonld he taken t<> ascertain that the ease comes within the 
 provisions of the act, and excej)t under very exceptional nin^umstaiices, an 
 order shonhl ncit l)e made i:r /im-ti-, Re King (189!)) IS 1'. H. 'Mi't. The .J\idge 
 making such an order acts as ^fr.ioo/i ilesliiiidta, and there is no appeal; //). 
 On the sale of mi infants' lands hy the Court, the dower of his lunatic mo'lier, 
 who was confined in an asylum, was harred l)y order; Re'Colthart (18H2) !• P. 
 R. 356. In api)lyiiig s. 17. Hoi^; v. (Jordon (1870) 17 Cr. oSll may he referred 
 to. There a wife, who uoi';;ealeri from the |)ul>lic hei- lelation to her linshand 
 and allowed him to live with another woman as his wife, was resti'ained from 
 claiming dower as against a purchaser in good faith and without notice. 
 
 Deed Not Containing Bar of Dcwer. In Bellamy v. Uadgerow (I8!)3) 24 (). K. 
 278, the wife had without any consideration to her, jr)ine(l in a mortgage, but 
 the mortgage did not contain the formal bar of dower. The Court refused to 
 reform the mortgage by inserting a l)ar of dowei', on the ground that the deed 
 was voluntary as to the wife. K. :i2 was passed to ])rovide for cases of similar 
 mi.stakes after Kith April, I8!t,"). 
 
 E 
 
 03 
 
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Soc. 1. 
 
 CONVEYANCES BY MAllUIKD WOMEN. Chap. 165. 
 
 799 
 
 from 
 III the 
 •cH, ail 
 .hiilgo 
 il; Th. 
 
 lior, 
 !) !t P. 
 'tc-rred 
 isliand 
 
 tioni 
 
 CHAPTER 165. 
 
 .\n Act to facilitate the conveyance of Real Estate 
 by Married Women. 
 
 HER MAJESTY, by and with the advice and con.sent of 
 the Legislative Assembly of the Province of Ontario 
 enacts as follows : — 
 
 1. This Act may be cited as "The Married Womav'x /?ea/ short title 
 AV((<e Act" R. S. O. 1887, c. 134, s. 1. 
 
 'i. In the construction of this Act , . ... 
 
 Interpretation 
 
 1. "Real estate" .shall extend to laiuls, chattels real, rents "Rp^ipstatp." 
 anil hereditaments, whether corporeal or incorporeal, and to any 
 undivided ^hare thereof ; to any estate, right or interest therein, 
 whether legal or equitable ; to any charge, lien or incumbrance 
 
 in, upon, or affecting real estate, to money subject to be in- 
 vested in real estate ; and to any interest, charge, lien or incum- 
 brance in, upon, or affecting such money as aforesaid. R. S. O. 
 1887, c. 134, s. 2 (1). 
 
 2. " Judge " shall mean a Judge of the High Court. R. S. O. "Judge." 
 1887. c. 127, ,s. 2 (2); 51 V. c. 21, .s. 1. 
 
 li. Every married woman being of the full age of twenty-one a married 
 years, may, by deed, convey her real estate, and convey re- woman 
 lease, .surrender, disclaim, or extinguish any interest therein, "eaf e'st'lte^ 
 and may also, by deed, release or extinguish any power which nnd release or 
 may be vested in, or limited or reserved to her in regard to p^j'vef"aiid 
 real estate, and may also, by deed, liar her dower, and any appoint an at- 
 right or inchoate right of dower in any real estate, and may )'^me^Joic! * 
 also, by deed, appoint an attorney or attorneys for the purposes ' 
 aforesaid and every of them as fully and effectually as .she could 
 do if she were a, feme sole. R. S. 0. 1887. c. 134, s. 3. 
 
 4. Where a conveyance to a purchaser for value purporting Wife purport- 
 to bar or lelease dower in any lanrl was before the otli day of ,',"^y 'J.' p*^^ ^„ 
 May, 1894, executed by a wife entitled to an inchoate right of 5th May. 1894. 
 dower, and such wife was at the time of such execution under "'*^''" ""f^®' 
 age, but the purchaser had at or before the execution of the 
 conveyance and payment of the purchase money no notice 
 that she was under age, the conveyance shall be effectual to 
 bar her dower, unless prior to the 1st day of January, 
 1899, she brings an action for dower, or gives to the owner 
 of the land written notice of her claim to dower by reason of 
 her minority as aforesaid, but nothing in this section contained 
 shall affect any conveyance which prior to the Slst day of 
 December, 1897, became valid under the Act pas.sed in the 
 
800 
 
 Chap. Ki'). CONVKYANCES ItV MAllKIKI) WOMEN'. SeC. 7(1). 
 
 6i» V. c. 40, 
 
 fifty-ninth year of Her-Maje.'sty'p reign, entitled An Act relat- 
 ing to Doiuerin Certain Canes. 60 V.c.3,s. 3; c. 15,Sched.A(80). 
 
 
 33 
 7. 
 
 C 
 
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 S 
 
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 30 
 
 **""*"! ."». Any married woman, under twenty-one years of aj^e, 
 
 twenty-one f>t sound mind, might on and since the 5th day of May, 
 barring dower. 1894, and hereafter may bar her dower in any hind or 
 hereditaments by joining with her husband in ii deed or con- 
 veyance thereof to a purcnaser for vahie, or to a mortgagee, in 
 winch deed or conveyance a release or bar of her dower is 
 contained, and she may in like manner release her dower to 
 any person to whom such lands or hereditaments have boon 
 previously conveyed. HT V. c. 41, s. 1. 
 
 Defective con- 
 veyanceH to 
 be valid. 
 
 Certain titles 
 not to be 
 prejudiced. 
 
 Deeds made 
 by married 
 women 
 without their 
 hnsbands 
 before 29th 
 March, 1873. 
 
 ii. — (1) P]very con\eyance before the 2()tli day oi March, 1<S73, 
 executed by a married woman of or afl'ecting her real estate, 
 in which her husbantl was a party, is, and shall be taken 
 and adjudged to be valid and efl'ectual to have pa.s.sed the 
 estate which such convej'anoe professed to pass of such married 
 woman in the said real estate, uotwithstanding the absence (jr 
 want of a certificate of her consent to convey the same ; and 
 notwithstanding any irregularity, informality, or defect in the 
 certificate (if any) ; and notwithstanding that such conveyance 
 may not have been executed, acknowledged or certified as re- 
 quired by any Act at or before the said <late in force respecting 
 the conveyance of real estate by married women, or may not 
 have been executed by the married woman in presence of her 
 husband, or on the same day on which or at the same place at 
 which such conveyance was executed by her husband. R. S. O.. 
 18S7, c. 134, s. 4. 
 
 (2) Nothing in this section contained shall render valid 
 any conveyance to the prejudice of any title, subsequently 
 to the execution of such conveyance and before the said date 
 accjuired from the married woman by deed duly executed and 
 certified as h\ law required.unless the actual possession or enjoy- 
 ment of the real estate conveyed or intended to be conveyed by 
 the prior conveyance has been had at any time subsequent 
 thereto by the grantee therein, or those claiming by, from or 
 under him, and he or they have been in such actual possession 
 or enjoyment, continuously for the period of three years befoi-e 
 the said date, and he or they were at the said date in the 
 actual po8,session or enjoyment thereof; arid nothing in this 
 Act contained shall render valid any conveyance from the 
 married woman which was not executed in good faith, or an}- 
 conveyance of land of which the married woman or those claim- 
 ing under her, is or are in the actual possession or enjoyment 
 contrary to the terms of such conveyance. R. S. 0. 1887, 
 c. 134, s. 5. 
 
 1. — (1) Every conveyance before 29th March, 1873, executed^ 
 by a married woman, of or afi'ectiiig her real estate shall, not- 
 withstanding her husband did not join therein, be taken ant I 
 adjudged to be, and to have been valid and efiiectual to havr 
 
I). 
 
 Sec. 9(1). CONVKYANCKS HY MAKRIED WOMEN. Chap. 165. 
 
 cSOl 
 
 v.lat- 
 <80). 
 
 .1 
 
 "n't-'. 
 
 May, 
 or 
 
 con- 
 ee, in 
 'er is 
 or to 
 
 1)0 on 
 
 passed the estate which such conveyance professed to pass, of 
 .luch married woman in the said real estate. .t[) V. c. 41, s. 1. 
 
 (2) Nothing in this section contained shall render valid any Certain title* 
 such conveyance as aforesaid to the prejudice of any title judiced. 
 snbse(inently to the execution of such conveyance and before 
 the 7th day of April, 1890, acquired from the married woman by 
 deed duly executed and certified as by law required, tniless the 
 actual possession or enjoyment of the real estate conveyed or 
 intended to be conveyed by the prior conveyance shall have 
 been had at any time subsequent thereto by the grantee therein, 
 or those claiming, by, from, or under him, and he or they shall 
 have been in such actual possession or enjoyment continuously 
 for the period of three years before the said 7th day of 
 April, and he or they was or were at such date in the 
 actual possession or enjoyment thereof ; and nothing in 
 this Act contained shall render valid any conveyance from the 
 married woman which was not executed in good faith, or any 
 conveyance of land of which the married woman or those 
 claiming under her, is or are in the actual possession or enjoy- 
 ment contrary to the terms of such conveyance, nor shall this 
 section affect any litigation pending on the 7th day of April, 
 1896. .59 V. c. 41,s. 2. 
 
 8. — (1) Every conveyance made on or after the 29th day of Validity of 
 March, 1873, by a married wonum of or affecting her real ^^e sfnce* 
 estate which her husband signed or executed, shall be taken March 29th, 
 and adjudged to be valid and effectual, to have passed or to ^^^^• 
 pass the estate which such conveyance professed or shall pro- 
 fess to pass of such married woman in said real estate. R. S. O. 
 1887,c. 134,,s.6. 
 
 (2) Nothing in this section contained shall render valid certain title* 
 any conveyance to the prejudice of any title lawfully not to be 
 accjuired from any married woman prior to the 23rd day of P"^^^" ^'^ ' 
 April, 1887, nor render valid any conveyance from the married 
 
 woman not executed in good faith or any conveyance of any 
 land, of which the married wonuin, or those claiming under her 
 was or were on the said day in actual possession or enjoyment 
 contrary to the terms of such conveyance, or affect any action . 
 or proceeding then pending. R. S. 0. 1887. c. 134, s. 7. 
 
 (3) This section shall not be deemed to declare or imply any This sec- 
 construction of any statute passed prior to the 23rd day of *ffgg"°o^" 
 April, 1887, as affecting the matters mentioned in this section, struction of 
 or any other matters relating to the rights or powers of ""y statute. 
 married women. R. S. 0. 1887, c. 134, s. 8 
 
 9. — (1) In any case where a husband is entitled to tenancy Judge may 
 by the curtesy in the real estate of his wife, and in any case dispense with 
 
 1 -1 • ui J. • 1- 1 1 1 i; 1 concurrence of 
 
 where a married woman is unable to give avalid tleed of her husband iu 
 real estate without her husband joining theren, if the husband certain caBes, 
 of a married woman is in consequence of being a lunatic, idiot 
 A 2 
 
 v& 
 
802 
 
 Chap. 165. CONVEYANCE.S BY MARRIED WOMEN. SeC. 9 (1). 
 
 a 
 
 % 
 
 c 
 
 >• 
 ■< 
 
 t 
 
 V. 
 
 ^ - 
 
 r 
 I 
 
 r 
 
 or of unsound mind (and whether he has been found such by 
 inquisition or not), or is from any other cause incapable of 
 executing a deed or conveyance, or if his residence is not 
 known, or he is in prison, or is living apart from his wife by 
 mutual consent, or under circumstances v/hich entitle her to 
 alimony, or if he has deserted her, or if there is in the opinion 
 of the Judge any other cause for so doing, a Judge may, by an 
 order to be made by him in a nummary way upon the applica- 
 tion of the wife — upon such evidence as to him seems meet, 
 and upon such notice to the husband as he deems requisite, 
 dispense with the execution of the deed or conveyance by or 
 concurrence of the husband therein in any deed or conveyance 
 of the real estate of his wife and enable the wife effectually to 
 convey such real estate without such execution by or con- 
 currence of the husband, and free froni any estate of the 
 husband by the curtesy, and all acts or deeds done or executed 
 by the wife, in pursuance of .such order in regard to her real 
 estate shall be done, executed, cr made by her in the same 
 manner, and with the same effect as if she were a feme sole, 
 and when so done, executed, or made by her shall be as good, 
 valid and eflectual as they would have been if the husband 
 had become a party to and executed the same. Where the 
 residence of the husband is not known notice to him shall not 
 be necessary. .51 V. c. 21, s. 2 (9). 
 
 (2) Nothing in this section contained shall be taken or con- 
 women"to con- strued as implying that a married woman may not, without 
 and irrespective of the provisions of this section validly 
 execute and make any deed, transfer or conveyance of her 
 real estate, or of any right or interest therein, in all respects 
 as if she were a feme sole. 51 V. c. 21, s. 3. 
 
 Right of 
 tnairied 
 
 vey real 
 property not 
 affected. 
 
 
 order |0 "phe order may be in the form following, or to the like 
 effect : — 
 
 " Thk Marrieu Wom.vn's Real E.state Act." 
 
 Upon fipplicHtion of A. li., of thu wife of C.B., 
 
 (or formerly of, etc.) I, one of the Judges of the 
 
 High Court of Justice for Ontario (or an the caau nunj be), do, pursuHiit to 
 *' The Married Woman's Real Estate Act, order that the said A. B. may, 
 ill the same manner, and with the same efl'ect, as if she were a feme sole, 
 and free from any est ite of her husband by the curtesy, bargain, sell, and 
 convey all or any p; .t of her estate, title, and interest of, in, to or out of 
 all and singular (describe the premises). 
 
 Dated this day of A.D. 
 
 {SigiMtnri' of Judyi.) 
 
 51 V. c. 21, s. 2 (10). 
 
 Order may be II. The order may be in duplicate or in as many parts as 
 registered. „,,g necessary, and shall be signed by the Judge, and may be 
 
Ml). 
 by 
 
 leof 
 
 not 
 
 ! by 
 
 r to 
 
 nion 
 
 )y an 
 
 »lica- 
 
 meet, 
 
 lisite, 
 
 con- 
 
 Sec. 15. 
 
 CONVEYANCES BY MARRIKD WOMEN. Chap. 165. 
 
 803 
 
 registered in the regi.stry office of the registry division wherein 
 the lands to which the same relates are situate, upon its^ pro- 
 duction and deposit, without any proof thereof; and 'such 
 registration may take place either before or after the execution 
 of the deed made in pursuance of such order. 51 V. c. 21, 
 •H. 2(11). 
 
 1 'i. Tlie order may, if desired, be indorsed or written upon Order may ba 
 tne deed tc which the same relates, in which case it shall be j^. °°° 
 registered as part of the deed, and the real estate to which Deaoription of 
 the order relates may be described therein by reference to the '"iPP"*''. 
 description contained in the deed. 51 V. c. 21, s, 2 (12, 15). written on ' 
 
 deed. 
 
 1 li. The affidavits and papers upon which the order is filing of 
 obtained shall be filed with the Clerk in Chambers and shall appHcatbn. 
 be transmitted by him to the Central Office. 51 V. c. 21, s. 2 
 (16) part. 
 
 14. For every such order including every duplicate or other Judge's fee for 
 l)art thereof, the Judge shall be entitled for his own use to a fee "^ ^'^' 
 of $2 ; but no other fee or charge of an}' kind, either to the 
 clerk or otherwise, shall be payable in respect thereof, except 
 that for filing the affidavits and papers the Clerk shall charge 
 the same fees as are chargeable for tiling papei-s in other cases ; 
 the fees for filings shall be paid in law stamps. 51 V. c. 21, s. 2 
 (14), (16 part) ; 60 V. c. 3, s. 3. 
 
 15. For the 
 
 registration 
 
 of such order, 
 
 including 
 
 g^jj Fee for 
 
 necessary entries and certificates, the registrar .shall be entitled of order, 
 to a fee of $1, unless the order is indorsed or written upon 
 the deed, in which case no fee shall be payable in respect of 
 the registration thereof. 51 V. c. 21, s. 2 (13). 
 
804 
 
 COKVEYANCES BY MAURIED WOMEN. 
 
 NOTES. 
 
 Husband's Concurrence Unnecessary. Since Isl .Inly, IS,S4. a iimiricil wo- 
 man 'ms Itcini (;ai)at)le of transferring her own interest in leal estate, and to bar 
 her (lower, and to appoint an attorney for eitlier of said ]miposes, l)y deed, t( 
 
 < 
 
 
 JO 
 7. 
 
 c 
 z 
 
 mm 
 
 < 
 
 r 
 
 ?c 
 
 E 
 
 r 
 
 03 
 > 
 
 IS 
 
 2"J ; .Nlooie 
 
 .laekson 
 
 roidd i-onvev lier leal estate 
 
 and aelcnowledged and (('iti- 
 
 W. IV e. -2: C. S. U. ('. e. HX 
 
 which iicr hii.shand was not a partv ; 47 V. 
 (IS9.S) 2-2 S. C. R. 210, '22.S, 23"). 
 
 Fiefore 29th Marcii, 1873, a married women 
 oidy hy deed, executed jointly with her hushani 
 fied us directed hy the Statutes then in force ; 1 
 Tlie fact that a husband signed a deed, to which, however, he was no paity, 
 <iid not give it validity, it was wholly inoperative ; Doe d. liradt v. Hoi'gkius 
 (1S32) 2(). S. 21.3 ; Foster v. Heall (1808) ir> (ir. 244. .loint execution did not 
 necessarily mean that the husband must execute the deed in his wife's presence ; 
 Burnav. McAdani (18fi5) 24 U. C. R.449; Monk v. I'arlinger (18«(i) 17 C. P. 41. 
 
 By .35 Vict. (•. 18, the acknowledgment and certiticate were dispensed with 
 for the future, and, subject to certain specified exceptions, all past conveyances 
 in which the husband liad joined wore made valid, notwithstanding the absence 
 of, or any defect in the examination or certificate. 
 
 That act also contained provisions .somewhat similar in language lo ss. i}-ir>, 
 authorizing a .Fudge to dispense with the concurrence of the husband in cer- 
 tain cases. No power was given to deprive the husband by order, of any 
 estate by the curtesy in the lands until 1888 ; i)l Vict. c. "21. (Jare bad to be 
 taken, where a husband joined in a conveyance, to ex|)ressly convey his intei ■ 
 est, for if the deed merely siiowed that the husband joined for conformity, and 
 to manifest his assent, his interest would not pass; Doc d. .McDonald v. 
 'I'wigg (1848) 5 U. C. R. 107. The same care must still be taken when the 
 inisband is tenant by the curtesy initiate. 
 
 The act of 1872 did not authorize a conveyance by a married woman to lier 
 inisband; Ogden v. McArthui- (187")) .3(! U. C. K. 240: although the same 
 might operate as a fleclaration of trust if it were separate estate ; Sanders \-. 
 Malsburg (1882) I O. R. 178. 
 
 Bar of Do'Hrer. Until oth May, 1894. an infant married wiTman eould not 
 execute an cfl'ectual bar of dower. Dower can, for the future, only l)e claimed 
 by such married woman, aa against purchasers without notice of her minority, 
 where before Ist January 1899, she either commenced an action of dower, or 
 gave written notice of her claim ; s. 4. 
 
 Detective Conveyances. V'arious Statutes have from time to time been passed 
 lo cure defects in conveyances by married women. See 2 Viet, c. ; McNalh- 
 v. Church (1807) 27 U. C. R. 103 ; 22 Vict, c 3") ; and C. S U. C. c. Hrt ; Mark 
 V. Farlingcr (1800) 17 C. 1*. 41 ; (Commercial Bank v. Smith (1807) 18 ('. 1'. 
 214 ; 30 V. c. 18, s. 12, and R. S. 0. (1877) c 127, s. 13, which extended to the 
 absence of or irregularities in the certificate or in thi! execution of conveyances 
 before 29th March, 1873 ; r)9 V. c. 41, s. 1 (s. 7) which extends to conveyances 
 l)efore 29th March, 1873, in which the husband did not join and .lO Vict. c. 7. 
 s. 23, R. S. O. (1887) c. 134, s. (s. 8) which extended to conveyances made on 
 or after 29th starch, 1873, which the husband signeil or executed. ■ The only 
 I'ase omitted is a conveyance made on or after 29th .Marcii, 1873, which the 
 husband did not sign or execute. 
 
 Exceptions. The act, 22 Vict. c. liii, s. r>, contained certain exceptions in 
 favor of (1) |)ersons who iiaye ac(|uired a valid deed from the married woman ; 
 (2) the married woman herself, and those claiming under her when (i<) the 
 conveyiiiice was not executed in good faith or (b) she or they liad been in the 
 actual iiossessioii or enjoyment of the land, notwitlistanding tiie conveyance. 
 The subse(juent nets contain provisio'is substantially similar, but the title of 
 the grantee under the invalid deed i. prcscr\ed, as against a subsecpicn t 
 grantee, if he or those claiming under Inn have been in actual possession for 
 three years, before and up to the time of th;- validating a(^t. The iirincijile of 
 the exceptions is to give legal validity to those deeds which, though invalid 
 for want of compliance with the law respecting conveyances liy married wo- 
 
iiiiMl wo- 
 uld to liar 
 ik'cd, to 
 Jackson 
 
 il I -.it at f 
 and 1 rrti- 
 
 ( '. L-. S.-). 
 no parly, 
 Horigkins 
 m did not 
 
 lO MS. !)-l."), 
 
 md ill cei- 
 
 cr, of any 
 
 lad to he 
 
 iiis inter- 
 
 iiiiity. and 
 
 •Donald V. 
 
 when till- 
 
 CONVEYANCES BY MARRIED WOMEN. 
 
 men, have nevortlioless liei'n regarded and uuted upon, as if they wore valid Ijy 
 the parties who made them : but to leave the defeet.s uiicured, when the 
 understivnding of the parties tlieniselves was that the deeds weie inoperative ; 
 per Patterson J. A., Klliott v. Brown (1885) 11 A. H. 2-28, 230. Tlie "actual 
 possession and enjoyment" re((uired is not the pedal possession necessary for 
 a trespasser to aci|uiie a title under the (Statute of Limitations ; actual [losses- 
 sion is not necessary if tliere is actual enjoyment ; the open and iiotorioiis 
 e.vercising of acts of ownership over the lands, by preventing trespasses thereon 
 or by appropriating timber on wild land, is sufficient ; Klliott v. Brown (188;)) 
 U A. R. '228 ; but see Armour on Titles, 2nd Ed. 320-325. Litig«tii>n which 
 was pending on 7th A))ril, 18{)tj, prevents a defect in a conveyance executed 
 before 29th March, 1873, which was not made valid by this acts in force before 
 tliat time, from being cured, o. g. the absence of the husliand as a party to a 
 lonveyance made in 1846 ; Hartley v. Maycock (1897) 28 O. R. .'508 
 
 Orders Passing Husbands Interest. Since 1888, the interest of the husband 
 as tenant by tiie curtesy in land of his wife, may be cut out by the order of a 
 •fudge ; 8. 9. " It is a strong thing to deprive a man of a right who has had 
 no opportunity of exercising it '; Hicks v. Williams (1888) 15 O.R. 228, 236. 
 < ireat care should Iw taken to ascertain tiiat tlie applicant comes clearly within 
 the provisions of the act, an<l an order should not lie made unless under very ex- 
 ceptional cin'unistances, and possibly not at all, without notice to the husband 
 unless his residence i.s not known ; see Re King (1899) 18 P. R. 365. 
 
 The Judge acts as pcrmiia iletujiiata and his order is not appealable ; ih. 
 The Master in (Jlianibers iia;; no jurisdiction to make the order ; Re Nolan 
 (1873)6 P. U. 115. 
 
 Inft:...c'i. Conveyance. Conveyances by infant femt-n conert, have now the 
 •same characLcristics as are by law to be attributed to the conveyances of male 
 infants, i. e. if sucii deeds are of l)enefit to the infant, or operate to pass an 
 estate or interest, they are voidable; not void; Whalls v. Learn (1888) 15 
 t). R. 481. 
 
 805 
 
806 
 
 Chap. 170. 
 
 LANDLORD AND TENANT. 
 
 Sec. 1. 
 
 3. LANDLORD AND TENANT. 
 
 z 
 < 
 
 X 
 
 5 
 
 CHAPTER 170. 
 
 An Act respecting the Law of Landlord and Tenant. 
 
 Short title, s. 1. 
 
 Interpretation, s. 2. 
 
 Relation of Landlord and Ten- 
 ant, 8. 3. 
 
 Apportionment of rent.s and cer- 
 tain other periodical pay- 
 ments, S8. 4-8. 
 
 Apportionment of condition of 
 re-entry, 8. 9. 
 
 Merger of rever.sion expectant 
 on a lease, 8. 10. 
 
 Right of re-entry, 8. 11. 
 
 Assignments by persons under dis- 
 ability, 8. 12. 
 
 Restrictions on andrelief aoain.st 
 forfeiture of le\ses, 8. 13. 
 
 Restriction on effect of license 
 under a lease, 8. 14. 
 
 Re.stricted operation of partial 
 license, 8. 15. 
 
 Waivbr of covenant, 8. 16. 
 
 Covenant to pay taxes, b. 17. 
 
 Notices to quit, s. 18. 
 
 Tenant to notify landlord of 
 action for recovery of land, 
 8. 19. 
 
 Recovery of premises by land- 
 lords 
 When half yeiir's rent in arrear,. 
 
 88. 20-25. 
 When lease is detennined and 
 tenant refuses to quit, ss. 2(i-29. 
 
 Exemptions from dlstress ; 
 
 Goods exempt from execution e.\- 
 
 empt from distress for rent, s. 30. 
 
 Gf>()d8 not the property of tenant 
 
 exempt, 8. 31. 
 Surrender of premises when ex- 
 emption claimed, s. 32. 
 
 Set off aoain.st rent, s. 33. 
 
 Where assignment for benefit of 
 creditors, 8. 34. 
 
 Re-entry of Landlord, s. 35. 
 
 Sale of crops, ss. 36, 37. 
 
 Application of sections 30 to 33, 
 B. 88. 
 
 Protection of goods of lodgerh 
 from distress, 88. 39-42. 
 
 HER MAJESTY, by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario, 
 enacts as follows : — 
 
 SLort Title I. This Act may be cited as " The Landlord and Tenant's 
 
 Act" 
 
 INTEHI'KETATION. 
 
 Interprctatiiin "i- Where the words following occur in sections 4, 5, (i, 7 
 and 8 of this Act, they shall be construed in the manner here- 
 inafter mentioned, unless a contrary intention appears : 
 
Sec. 1. 
 
 Tenant. 
 
 .NDLORI) OF 
 ly OF LAND, 
 
 i BY LANI>- 
 
 it in aneiir, 
 
 niiined and 
 lit, 88. 2(i-29. 
 lEss : 
 
 xecution cx- 
 or rent, s. 30. 
 rty of tenant 
 
 es when ex- 
 . 32. 
 8. 33. 
 
 a BKNEFIT OF 
 ), 8. 35. 
 
 »NS 30 to 33, 
 
 OK LOWIERH 
 
 39-42. 
 
 consent of 
 :)£ Ontario, 
 
 d Tenant's 
 
 ; 4. 5, G, 7 
 inner here- 
 ars : 
 
 Sec. 5. 
 
 LANDLORD AND TENANT. 
 
 Chap. 170. 
 
 H07 
 
 1. " Rents " shall include rent-service, rent-charge and rent- "Rpnts." 
 seek, and all periodical payments or renderings in lieu of or in 
 
 the nature of rent ; 
 
 2. " Annuities" .shall include .salaries and pensions ; and "Annuities. '■ 
 
 3. " Dividends " shall include (besides dividends, strictly so "Dividends" 
 called) all payments made by the name of dividend, bonus or 
 otherwise out of the revenues of trading or other public com- 
 panies, divisible between all or any of the members of such 
 respective companies, whether such payments are u.sually made imp. Act 
 
 or declared at any fixed times or otherwise ; and all .such divi- 33-34 V. c. 
 sible revenue shall, for the purposes of this Act, be deemed to ' "' '*' 
 have accrued by equal daily increment, during and w Ihin the 
 period for or in respect of which the payment of the same 
 revenue is declared or expressed to be made ; but the said word 
 " dividend " shall not include payments in the nature of a return 
 or reimbursement of capital. R. S. 0. 1887, c. 143, s. 1. 
 
 RELATION OF LANDLORD AND TENANT. 
 
 li. The relation of landlord and tenant did not since the Reversion or 
 15th day of April, 1895, and shall not hereafter depend on ^^g^^^^^^^^''^""' 
 tenure, and a reversion or remainder in the lessor shall not be create relation 
 necessary in order to create the relation of landlord and andT«!ant 
 tenant, or to make applicable the incidents by law belonging 
 to that relation ; nor shall any agreement between the parties 
 be necessary to give a landlord the right of distress. 59 V. 
 c 42, .s. 3. 
 
 APPORTIONMENT OF RENT AND OTHER PERIODICAL PAYMENTS. 
 
 4. All rents, annuities, dividends, and other periodical pay- RentK, etc., to 
 ments in the nature of income (whether reserved or made pay- accrue from 
 able under an instrument in writing or otherwise), shall like ^nd be app'or- 
 interest on money lent, be considered as accruing from day to tionable m re- 
 day, and shall be apportionable in respect of time accordingly, ^p*"* ". '™*'" 
 R.S.0.1887,c.l43,.s. 2. 3??liv c. 
 
 35, 8. 2. 
 
 5. The apportioned part of such rent, annuity, dividend Apjwrtioned 
 or other payment shall be payable or recoverable in the case of P*'* '^j^ ^^^' 
 a continuing rent, annuity or other such paj-ment when the payal^B when 
 entire portion, of which such apportioned part forms part, the next entire 
 becomes due and payable, and not oefore ; and in the case of a comes due. 
 I'ent, annuity or other such payment determined by re-entry, imp. Act 
 death or otherwise, when the next entire portion of the same ^'^^^ "' 
 would have been payable if the same had not .so determined, 
 
 and not before. R S. 0. 1887, c. 143, s. 3. 
 
808 
 
 Chap. 170. 
 
 LANDLORD AND TENANT. 
 
 Sec. 6(1). 
 
 < 
 
 
 
 C 
 
 z 
 < 
 
 A. 
 
 E 
 
 03 
 TO 
 
 PersonH (shall 0. — (1) All pcjsons and their respective heirs, executors, iid- 
 rwnediet for"* miiiistrators and a,ssigns, and also the executors, adminis- 
 recoveiing tiatois and assigns, respectively, of persons whose interests 
 TrtT*" for' determine with their own deaths, shall have such or the same 
 entire ixirtion. remedies for recoverinj^ such apportioned parts as afori'- 
 said, when payable (allowing proportionate parts of all just 
 allowances) as they respectively would have had for recovering 
 such entire portions as aforesaid, if entitled thereto respectively. 
 
 (2) Provided that persons liable to pay rents reserved out of 
 or charged on lands or other hereditaments of any tenure, am] 
 the same lands or other hereditaments shall not be resorted to for 
 ary such apportioned part forming part of an entire or continuing 
 rent as aforesaid specifically, but the entire or continuing rent, 
 including such apportioned part, shall be recovered and received 
 by the heir or other person, who, if the rent had not been 
 apportionable under this Act, or otherwise, would have been 
 entitled to such entire or continuing re , and su.^h apportioned 
 part shall be recoveiable by action from such heii* or other 
 person by the executors or other persons entitled under tliis Act 
 to the same. R. S. O. 1887, c. 148, s. 4. 
 
 Imp. Act 33 
 34 V. c. 35, 
 H. 4. 
 
 ProviHo !i« to 
 rents reserved 
 in certain 
 ■cases. 
 
 ■Act not to ap- 
 ply to policies 
 of assurance. 
 Imp. Act 33- 
 34 V. c. 35, 
 
 K. 0. 
 
 Nor where 
 stipulation 
 made to the 
 contrary. 
 33-34 V. c. 35, 
 
 1. Nothing in the |)ieceding provisions of this Act contained 
 shall I'ender apportionable any annual sums made payable in 
 jjolicies of assurance of any description. R. S. 0. 1887, c 143, 
 
 o. 
 
 8. The preceding provisions of this Act shall not extend to 
 any case in which it is expressly stipulated that no apportion- 
 ment shall take place. R. S. 0." 1887, c. 143, s. 0. 
 
 APPORTIONMENT OF CONDITION OF RE-ENTRY. 
 
 0. Where the reversion upon a lease is severed and the rent 
 ment of condi- qj. other reservation is legally apportioned, the assignee bf each 
 part of the reversion shall, in respect of the apportioned rent 
 or other reservation allotted or belonging to him, have and be 
 entitled to the benefit of all conditions or powers of re-entry 
 for non-payment of the original rent or other reservation, in 
 like manner as if such conditions or powers had been reserved 
 to him as incident to his part of the reversion in respect of the 
 apportioned rent or other reservation allotted or Itelonging to 
 him. R. S. O. 1887, c. 143, s. 7. 
 
 Ai(portion 
 ment of co 
 tion of re-entry 
 in certain 
 cases. 
 
 imp. Act 22- 
 23 V. 
 K 3. 
 
 35, 
 
 MERGER, ET(;., OF REVERSIONS. 
 
 10. Where the reversion expectant on a lease of land 
 mei'ges or is surrendered, the estate, which for the time being 
 confers, as against the tenant under the same lease, the next 
 vested right to the same land, shall, to the extent of and for 
 preserving such incidents to and obligations on the same rever- 
 I" l'"^- ^°^ sion as but for the surrender or merger thereof would have 
 100, s. 9. subsisted, be deemed the reversion expectant on the same lease. 
 R. S O. 1887, c. 143, s, 8. 
 
 Effect of sur- 
 render or 
 merger of 
 reversion ex- 
 iiectant on a 
 lease in certain 
 cases. 
 
a in 
 
 ■i, Jid- 
 
 Sec. 13 (2). 
 
 LANDLORD AND TENANT. 
 
 RIGHT OF RF:-ENTRY. 
 
 Chap. 170. 
 
 809 
 
 11. In every demise made or entered into after the 25th day ^'k*'* °^ 
 of March, 1886, whether by parol or in writing. unle.ss it shall 
 he otherwise agreed, there shall be deemed to be included an 
 agreement that if the rent reserved, or any part thereof, shall 
 remain unpaid for fifteen days after any of the days on which 
 the same ought to have been paid, although no formal demand 
 thereof shall have been made, it shall be lawful for the landlord, 
 at any time thereafter into and upon the demised premises, or 
 any part thereof in the name of the whole, to re-enter and the 
 -same to have again, repossess, and enjoy as of his former 
 estate. R. S. 0. 1887, c. 143, s. 9. 
 
 ASSIGNMENTS BY PERSONS UNDER DISABILITY. 
 
 1 H. Where any person being under the age of twenty-one Aisignments 
 yeai's, or a lunatic, or a person of unsound mind, shall be seised unferdi"* 
 of the reversion of land subject to a lease, and such lease shall ability, 
 contain a covenant not to assign or sublet without leave, the 
 guardian of such infant or tlie committee of such lunatic, or 
 person of unsound mind may, with the approbation of the 
 Judge of the Surrogate Court of the county in which the land 
 is situate, consent to any assignment or transfer of such lease- 
 hold interest, in the same manner and with the like effect as if 
 the consent were given by a lessor under no disability. R. S. O. 
 1887, c. 143, s. 10. 
 
 FORFEITURE OF LEASES. 
 
 13. — (1) Aright of re-entry or forfeiture under any pro- Restrictions 
 viso or stipulation in a lease, for a breach of any covenant or ^ainat ^forfeit- 
 condition in the lease, shall not be enforceable, by action or ure of leases, 
 otherwise, unless and until the lessor serves on the lessee a 4"^' ■^''^^j*'*' 
 notice specifying the particular breach complained of, and if s. 14. 
 the breach is capable of remedy, requiring the lessee to remedy 
 the breach, and, in any case, requiring the lessee to make com- 
 pensation in money for the breach, and the lessee fails, within 
 a, reasonable time thereafter, to remedy the breach, if it is 
 capable of remedy, and to make reasonable compensation in 
 money, to the satisfaction of the lessor for the breach. 
 
 (2) Where a lessor is proceeding by action or otherwise, to 
 enforce such a right of re-entry or forfeiture, the lessee may, 
 in the lessor's action, if any, or in any action brought by him- 
 self, apply to the Court for relief ; and the Court may grant or 
 refuse relief, as the Court, having regard to the proceedings 
 and conduct of the parties under the foregoing provisions of 
 this section and to all the other circumstances, thinks fit ; and 
 in case of relief may grant it on such terms, if any, as to costs, 
 expenses, damages, compensation, penalty, or otherwise, includ- 
 ing the granting of an injunction to restrain any like breach 
 in the future, as the Court in the circumstances of each case 
 thinks fit. 
 
810 
 
 Chap. 170. 
 
 LANDLORD AND TENANT. 
 
 Sec. 13(3). 
 
 
 
 C 
 7 
 
 MM 
 
 < 
 
 mm 
 
 V. 
 
 5 
 
 > 
 
 -< 
 
 Lease until 
 breach. 
 
 Limitation of 
 section. 
 
 Meaning of in (3) For the pui'poses of this section, a lease includes an original 
 "iLaee "'°° ^^ derivative under-lease, also a grant at a fee farm rent, or 
 "Lessee" securing a rent by condition ; and a lessee includes an original 
 "Lessor." Qj, derivative under-lessee, and the heirs, executors, adminis- 
 trators, and assigns of a lessee, also a grantee under such a 
 grant as aforesaid, his heirs and assigns ; and a lessor includes 
 an original or derivative under-lessor, and the heirs, executors,, 
 administrators, and assigns of a lessor, also a grantor as afore- 
 said, and his heirs and assigns. 
 
 Where riRht of (4) This section applies, although the proviso or stipulation 
 ig'undera Under which the light of re-entry or foi-feiture accrues is 
 statute. insei'ted in the lease, in puisuance of the directions of any Act 
 
 of Parliament or of the Legislature of this Province. 
 
 (5) For the purposes of this section, a lease limited to con- 
 tinue as long only as the lessee abstains from committing a 
 breach of covenant shall be and take effect as a lease to con- 
 tinue for any longer term for which it could subsist, but deter- 
 minable by a proviso for re-entry on such a breach. R.S.O. 
 1887. c. 143, s. 11 (1-5.) 
 
 (6) This section .shall not extend — 
 
 (a) To a covenant or condition, against the assigning, under- 
 letting, parting with the possession, or disposing of the land 
 leased ; or to a condition for forfeiture on the bankruptcy 
 of the lessee, or on the taking in execution of the lessee'.s- 
 interest; or 
 
 (6) To a mining lease. 
 
 A "mining lease " is a lease for mining purposes, that is. 
 the searching for, ^forking, getting, making merchantable, 
 carrying away, or disposing of mines and minerals, or 
 purposes connected therewith, ard includes a grant or 
 license for mining purposes. R.S.O. 1887, c. 143, s. 11 (6); 
 60 V. c. 15, Sched. A (28). 
 
 (7) This section shall not affect the law relating to re-entry 
 or forfeiture or relief in cases of non-payment of rent. 
 
 Application of ^g) This section shall apply to leases made either before or 
 ^ ' after the enactment thereof, .ind shall have effect notwithstand- 
 
 ing any stipulation to the contrary. R. S. 0. 1887, c. 143, 
 s. 11 (7,8). 
 
 LICENSES. 
 
 Restriction on 1 4. Where a license to do any act which, without such 
 ficen*e°under license, would Create a forfeiture, or give a right to re- 
 enter, under a condition or power reserved in a lease 
 heretofore granted, or to be hereafter granted, has been, 
 at any time since the 18th day of September, 1865, given 
 to a lessee or his assigns, every such license shall, unles.ss- 
 otherwise expressed, extend only to the permission actually 
 
 power con- 
 tained in 
 lease, etc. 
 Imp. Act 22- 
 23 V. c. an, 
 g. 1. 
 
Sec. 17. 
 
 LANDLORD AND TENANT. 
 
 Chap. 170. 
 
 811 
 
 given, ov to any specific breacli of any proviso or covenant made 
 or to be made, or to the actual assignment, under-lease or other 
 matter thereby specitically authorized to be done, but not so as 
 to prevent a proceeding for any subsequent breach (unless 
 otherwise specified in such license) ; and all rights under cove- 
 nants and powers of forfeiture and re-entry in the lease con- 
 tained shall remain in full force and virtue, and shall be avail- 
 able as against any subsequent breach of covenant or condition, 
 assignment, under-lease, or other matter not specifically author- 
 ized or made dispunishable by such license, in the same manner 
 as if no such license had been given ; and the condition or right 
 of re-entry shall be and remain in all respects as if such license 
 had not been given, except in respect of the particular matter 
 authorized to be done. R. S. O. 1887, c. 143, s. 12. 
 
 1»5. Where in a lease heretofoie granted or to be herein- RestricteJ 
 after granted, there is a power or condition of re-entry on partTal" " "^ 
 assigning or underletting or doing any other specified licenHest. 
 act without license, and at any time since the 18th day ^^ 'l*^^^' 
 of September, 18G.5, a license lias been or is given to s. 2. 
 one of several lessees or co-owners to assign or underlet 
 his share or interest, or to do uny other act prohibited to be 
 done without license, or has been oi- is given to a lessee or 
 owner, or any one of several lessees or owners, to assign or 
 underlet part only of the property, or to do any other such act 
 as aforesaid in respect of part only of such property, such 
 license shall not operate to destroy or extinguish the right of 
 re-entry in case of any breach of the covenant or condition by 
 the co-lessee or co-lessees or owner or owners of the other shares 
 or interests in the property, or by the lessee or owner of the 
 rest of the property (as the case may be), over or in respect of 
 such shares or interests or remaining property, but such right 
 of re-entry shall remain in full force over or in respect of the 
 shares or interests or property not the subject of such license. 
 R. S. O. 1887, c. 143, s. 13. 
 
 WAIVER OF COVENANT. 
 
 1 0. Where an actual waiver of the benefit of a covenant Waiver not to 
 or condition in a lease, on the part of a lessor, or his heirs, than'to^the''" 
 executors, administrators or assigns, is proved to have taken particular 
 place after the 18th day September, 1865, in any one particular "nstance 
 instance, such actual waiver shall not be assumed or deemed to 
 
 extend to any instance or any breach of covenant or condition 
 other than that to which such waiver specially relates, nor to 
 be a general waiver of the benefit of any such covenant or 
 condition, unless an intention to that effect appears. R. S. O. 
 1887, c. 143, s. 14. 
 
 COVENANT TO PAY TAXES. 
 
 11. In the case of leases made on or after the 1st day of Covenant to 
 September, 1897, unless it is therein otherwise specifically l^^'cJudeloMi'l*^ 
 
 improvement 
 
V|^ 
 
 812 
 
 Clmp. 170. 
 
 LAN'DLORl) AND TENANT. 
 
 Sec. 17 
 
 provided a covenant by a lessee for payment of taxes shall not 
 oe deemed to include an obligation to pay taxes assessed for 
 l(x;al improvements. 60 V. c. 14, h. 28 (1), part. 
 
 LENGTH OF NOTICES TO QUIT. 
 
 Notice to quit 1 H. In the case of tenancies from week to week and from 
 in case of nionth to month, a week's notice to (luitanda month's notice 
 montiily to quit, respectively, ending with the week or the month, as 
 
 tenancies. the case may be, shall be deemed sufficient notice to deter- 
 mine, respectively, a weekly or monthly tenancy. R. S. O. 
 18S7, c. 143, s. 15. 
 
 < 
 O 
 
 % 
 
 c 
 z 
 
 wm 
 
 < 
 
 Penalty on 
 
 TENANT.S TO NOTIFY LANDLORDS. 
 
 I !>. Every tenant to whom a writ in an action for the 
 
 tenant reueiv- recoverv of land has been delivered, or to whose knowledge it 
 
 ing writ for 
 recovery of 
 land and 
 not notifying 
 his landlord. 
 
 comes, shall^ forthwith give notice thereof to his landlord, or to 
 his bailiff or receiver, and if he omits so to do, he shall forfeit 
 to the person of whom he holds, the value of three years' 
 improved or vack rent of the premises demised or holden in the 
 possession of such tenant, to be recovered by action in any Court 
 having jurisdiction for the amount. R. S. O. 1887, c. 143, s. 16. 
 
 RECOVERY OF PREMISES BY LANDLORDS. 
 
 X) 
 > 
 
 < 
 
 Where a kaif-years rent in arrear. 
 
 Landlord hav- 30. In all cases between landlord and tenant, as often as it 
 '"^ iit't-T *° ^'8'Ppens that one-half year's rent is in arrear, and the landlord 
 non-payment Or lessor to whom the same is due has the right by law to 
 of rent, may re-cntcr for non-payment thereof, such landlord or lessor may, 
 jsessiim. '^ without any formal demand or re-entry, serve a writ lor the 
 recovery of the demised premises ; or in case the same cannot 
 be legally .served, or no tenant is in actual possession of the 
 premises, then the landlord or lessor may affix a copy thereof 
 upon the door of any demised messuage, or in case the action 
 is not for the recovery of any messuage, then upon some 
 notorious place of the lands, tenements or hereditaments com- 
 prised in the writ ; and such affixing shall be good service 
 thereof, and shall stand instead of a demand and re-entry. 
 R. S. O. 1887, c. 143, s. 17. 
 
 How such 31. In case of Judgment against the defendant for non- 
 
 '^'^.''V'^j" ^ appearance, if it is shewn by affidavit to the Court, or is proved 
 upon the trial in case the defendant appears, that half a 
 year's rent was due before the writ was served, and that no 
 sufficient distress was to be found on the demised premises 
 countervailing the arrears then due, and that the lessor had 
 power to re-enter, the lessor shall recover judgment and have 
 execution in the same manner as if the rent in arrear had 
 been demanded, and re-entry made. R. S. 0. 1887, c 143, s. 18. 
 
(. 
 
 >SeC. 25. 
 
 LANDLORD AND TENANT. 
 
 Chap. 170. 
 
 HIS 
 
 'i*i. In case tl)e lessee or his assignee, or othei- person CoiiHequencHs 
 claiming or deriving title under the lease, permits "■'^'^l 1^1 Hljcirrljlhr* 
 sutlers judgment to he had on such trial and execution to be 
 executed thereon, without paying the rent and arrears 
 together with full costs, and without proceeding for equit- 
 able relief within six months after execution executed, then 
 and in every such case the lessee and his assignee and all 
 other persons claiming and deriving under the lease, shall 
 be barred and foreclosed from all relief or remedy other than 
 by proceedings by way of appeal from the judgment, and the 
 landlord or lessor shall from thenceforth hold the denused 
 premises discharged from the lease. R. S. 0. 1H87, c. 143, a. 19. 
 
 'ill. Nothing hereinbefore contained shall bar the right of f-" '" J";"'^>"'- 
 
 "nil 1 ,.,.'*. gees (it k'liai". 
 
 auy mortgagee oi such lease or any part thereof who is not in 
 j)08session, if the mortgagee, within six months after such 
 judgment obtained and executi(m executed, pays all rent in 
 arrear, and all costs and damages sustained by the lessor or 
 person entitled to the remainder or reversion, and performs all 
 covenants and agreements which on the part and behalf of the 
 first lessee are to be, or ought to be performed. R. S. O. 1887, 
 c. 143, s. 20. 
 
 Proceeding;.') i 
 the tenant 
 ejected seeks 
 equitable 
 relief. 
 
 If such 
 proceedings 
 be after 
 execution 
 executed. 
 
 ^4. Ill case the lessee, his assignee or other person claim- 
 ing any right, title or interest of, in or to the lease, pro- 
 ceeds for equitable relief within the time aforesaid, such 
 person shall not be entitled to a stay of the proceedings, unless 
 within forty days next after an application for a stay of the 
 |jroceedings he brings into Court and lodges with the proper 
 officer such sum of money as the lessor or landlord swears to be 
 due and in arrear over and above all just allowances, and also 
 the costs taxed in the said action, there to remain until the 
 hearing of the application for equitable relief, or to be paid 
 out to the lessor or landlord on good security, subject to the 
 judgment or order of the Court ; and in case such proceedings 
 for equitable relief are taken within the time aforesaid, and 
 after execution has been executed, the lessor or landlord shall 
 be accountable only for so much as he really and bona fide, 
 without fraud, deceit or wilful neglect, has made of the 
 •lemised premises from the time of his entering into the actual 
 possession thereof, and if what he has so made is less than the 
 rent reserved on the lease, then the lessee or his assignee, 
 before being restored to his possession, shall pay the lessor or 
 landlord what the money so by him made fell short of the 
 reserved rent for the time the lessor or landlord held the lands. 
 R. S. O. 1887, c. 143, s. 21. 
 
 35. If the tenant or his assignee at any time before the Discontinu- 
 trial in the action pays or tenders to the lessor or landlord, or p^yg arrears"* 
 to his solicitor in the cause, or pays into Court all the rent and of rent and 
 arrears together with the costs, all further proceedings in the ^^^^f etc."^* 
 action shall cease ; and if the lessee or his assigns, upon such pro- 
 
HU 
 
 Chap. 170. 
 
 r,ANDI,ORD AND TENANT. 
 
 8ec. 25. 
 
 a 
 
 c 
 z 
 
 < 
 
 X 
 
 E 
 
 03 
 
 > 
 
 ceedinj,' as aforesaid, obtains e({uitable rel'of he and they sliull 
 have, hold and enjoy tlie demised lands according to the lease 
 thereof made, without any new lease. R. S. 0. 1887, c. 143, s. 22. 
 
 Where lease is determined and tenant reficsea to go out. 
 
 (JircuiiistanccH 'Hi. hi case (I) the term or interest of any tenant of any 
 iinder which lands, tenements or hereditaments, holding the same ander a 
 
 landlord may , ' . -l- t- ^ u r 
 
 give notice to lease or agreement \n writing lor any term or number ot years 
 
 tenant to find certain, or from year to year, expires or is detei mined either 
 by the landlord or tenant by rcgu'.ui notice to quit ; and (2) in 
 case a lawful demand of possession in writing, made and 
 signed by the landloid or his agent, is served personally upon 
 the tenant or any person holding or claiming under him, or is 
 left at the dwelling house or usual placo of abode of such 
 tenant or person ; and (3,) in case such tenant or person refuses 
 to deliver up possession accordingly, and the landlord there- 
 upon proceeds by action for recovery of possession, he may, at 
 the foot of the writ of summons, address a notice to such tenant 
 or person, requiring him to find such security, if ordered by 
 the Court or a Judge, and for such purposes as are hereinafter 
 next specified. R. S. (). 1887, c. 143, s. 23. 
 
 Court or 
 judge may 
 order. 
 
 'iH. Upon the appearance of the party, or in case of non- 
 appearance then on making nnd filing an affidavit of service 
 of the writ and notice, and on the landlord's producing the 
 lease or agreement, or some counterpart or duplicate thereof, 
 and prijving the execution of the same by affidavit, and upon 
 affidavit that the premises have been actually enjoyed under 
 such lease or agreement, and that the interest of the tenant 
 has expired, or been determined by regular notice to quit (as 
 the case may be), and that possession has been lawfully de- 
 manded in manner aforesaid, the landlord may apply to the 
 Court or a Judge for a rule or summons for such tenant or 
 person to shew cause, within a time to be fixed by the Court 
 or Judge on a consideration of the situation of the premises, 
 why such tenant or person should not enter into a bond by 
 himself and two sufficient sureties, in a rea,sonable sum, con- 
 ditioned to pay the costs and damages which may be recovered 
 by the plaintiff in the action, and the Court or Judge, upon 
 cause shewn or upon affidavit of the service of the rule or 
 summons in case no cause is shewn, may make the same abso- 
 lute in whole or in part, and order such tenant or {)erson with- 
 in a time to be fixed, upon a consideration of all the circum- 
 stances, to give such bond to the plaintiff with .such conditions 
 and in such manner as may be specified in the said rule or 
 summons, or the part of the same so made absolute. R. S. 0. 
 1887, c. 143, s. 24. 
 
 If order not ^8. In case the party neglects or refuses to comply with 
 obeyed ^ngh rulc or order, and gives no ground to induce the Court or 
 
 be i^gned,™*^ Judge to enlarge the time for obeying the same, then the lessor 
 
25. 
 
 ^ec. 31 (2). 
 
 LANDLOlll) AND TENANT. 
 
 CImp. 170. 
 
 815 
 
 iiiii 
 
 or landlord, upon tiling an affidavit that such rule or order has 
 been made and served and not complied with, may sign judg- 
 ment for the recovery of possession and costs of suit. R. 8. 0. 
 18«7, c. 143. s. 25. 
 
 'i9. No action or other proceeding shall he couuuenced upon l mK.-tion of 
 the bond after six months from the time when the possession »«">'!> upon 
 of the priimises or any part thereof has been actually delivered 
 to the landlord. R. S. O. 1887, c. 143, s. id. 
 
 I) in 
 
 EXEMPTIONS FKOM DIS'liiESS. 
 
 my — (1) Tile goods and chattels exempt from seizure under Goods oxt-mpt 
 •execution, shall not V)e liable to seizure by distress by a landlord [o^beTj^n ut" 
 for nuit in respect of a tenancy created after the first day of from distrebz 
 October, 1887, except as hereinafter provided. R. S. 0. 1887, 
 e. 143,8. 27 (1) part. 
 
 (2) In the case of a monthly tenancy the said exemption 
 «sliall only apply to two months' arrears of rent. 55 V. c. 31, 
 s. 1. 
 
 (3) The person claiming such e.Kemj)tion shall select and 
 point out the goods and chattels as to which he claims exemp- 
 tion. R. S. 0. 1887, c. 143, a. 27 (2). 
 
 151. — (1) A landlord .sliall not di.straiii foi- rent on the goods Goods on 
 and chattels the property of any jiirson except the tenant or property o°' 
 person who is liable for the rent, although the same are found tenant to be 
 on the premises ; but this restriction shall not apply in favour *''^'"P*- 
 <if a person claiming title imder or l>y virtue of an execution 
 against the tenant, oi- in favour of any person whose title is Exceptions, 
 derived by purchase, gift, tran.sfer, or assignment from the 
 tenant, whether absolute or in trust, or by way of mortgage 
 or otherwise, nor to the interest of the tenant in any goods on 
 the premises in the possession of the tenant under a contract 
 for purchase, or by which he may or is to become the owner 
 thereof upon performance of any condition, nor where goods 
 have been exchanged between two tenants or persons by the 
 one borrowing or hiring from the other for the purpose of 
 defeating the claim of or the right of distress by the landlord 
 nor shall the restriction apply where the property is claimed 
 by the wife, husband, daughter, son, daughter-in-law, or .son- 
 in-law of the tenant, or by any other relative of his, in case 
 such other relative lives on the premises as a member of the 
 tenant's family, or by any person who.se title is derived by 
 l)urchase, gift, transfer or assignment from any relative to 
 whom such restriction does not apply. 57 V. c. 43, s. 1 ; 60 V. 
 c. 15, Sched. A (60). 
 
 (2) Nothing in this section contained shall exempt from 
 seizure by distress goods or merchandise in a store or shop 
 managed or controlled by an agent or clerk for the owner of 
 
 such goods or 
 
 merchandise when such clerk or 
 
 agent is also 
 
816 
 
 Chap. 170. 
 
 LANDLORD AND TENANT. 
 
 Sec. m (2>. 
 
 " Tenant," 
 meaning of, 
 in this section, 
 
 the tenant and in default and the rent is due in respect of the 
 store or sliop and premises rented therewith and thereto 
 belonging, when sucli goods would have been liable to seizure 
 but for this Act. 
 
 (3) Subject to sections 39 and 40 of this Act the word 
 " tenant " in this section shall extend to and include the sub- 
 tenant and the assigns of the tenant and any person in actual 
 occupation of the premises under or with the assent of the 
 tenant during the currency of the lease, or while the rent is 
 due or in arrear whether he has or has not attorned to or be- 
 come the tenant of the landlord. K. S. O. 18cS7, c. 143, s. 2H. 
 (2, 3). 
 
 Tenant claim- 
 ing exemption 
 must sur- 
 render pre- 
 mieex. 
 
 i 
 
 r 
 f 
 
 Seizure of 
 exempted 
 goods. 
 
 -< 
 
 IVi. — (1) A tenant who is in default for non-payment of 
 rent and claims the benefit of the exemption from distress to 
 which he is entitled under this Act, must give up possession of 
 the premises forthwith, or be ready and offer to do ^o. 
 
 (2) The offer may be made to tlie landlord or to his agent ; 
 and the person authorized to seize and sell the goods and 
 chattels, or having the custody thereof for the landlord, shall 
 be considered an agent of the landlord for the purpose of the 
 offer and surrender to tlie landlord of the possession. 
 
 (8) Where a landlord desires to seize the exempted goods, he 
 shall, after default has been made in the payment of rent and 
 before or at the time of seizure serve t'u tenant with a notice 
 which shall inform the tenant what amount is claimed for rent 
 in arrear, and that in default of payment, if he gives up pos- 
 session of ^he premises to the landlord after service of the 
 notice, he will be entitled to claim exemption for such of hi& 
 goods and chattels as are exempt from seizure under execution, 
 but that if he neither pays the rent nor gives up possession 
 his goods and chattels will be liable to seizure, and will be sold 
 to pay the rent in arrear and costs. R. S. O. 1887, c. 143, s. 30 
 (1,2,^4). 
 
 (4) The notice may be in the following form or to the like 
 effect : 
 
 Take notice that I claim $ for rent due to mo in respect of the 
 
 premisrs wliicli you hold as my tenant, namely, (liere briefly describe them) ; 
 and unleis the said rent is paid, 1 demand from you immediate possession 
 of the said premises ; and 1 am ready to leave in your possession such of 
 your goods anl chattels as in that case only you are entitled to claim 
 exemption for. 
 
 Take i.otice further, that if you neither pay the said rent nor give me 
 up possession of the said premises within three days after the service of 
 this notice, I am by law entitled to seize and sell and I intend to seize 
 and sell all your goods and chattels, or such part thereof as may be neces- 
 sary for the payment of the said rent and costs. 
 
 This notice is given under the Act of the Legislature of Ontjvrio, respect- 
 ing the Law of Landlord and Tenant. 
 
 Dated this day of A.D. 
 
 (Signed) A.Ii. {hvdbml). 
 
 To CD. {tenant.) 
 
 R. S. 0. 1887, c. 143, s. 30 (5) ; oO V., c. 42, s. 2. 
 
 , 
 
n(2X 
 
 Sec. 
 
 34 (2). 
 
 LANDLORD AND TENANT. 
 
 Chap. 170. 
 
 «17 
 
 of tho 
 i(;reta 
 
 won 
 
 \ 
 
 .sub- 
 actual 
 of the 
 rent is 
 or be- 
 
 s. 2« 
 
 (5) The surrender of possession in pursuance of tho notice 
 by the landlord shall be a determination of tlie tenancy. 
 R. S. O. 1887, c. 143, s. 30 (3). 
 
 (6) Service of papers under this Act shall be made either 
 ])ersonnlly or by leaving the same with some grown person 
 being in and apparently residing on the premises occupied l>y 
 the person to be served. 
 
 (7) If the tenant cannot be found and his place of abode is 
 either not known, or admission thereto cannot be obtained, the 
 posting up of the paper on some conspicuous part of the pre- 
 mises, shall be deemed good service. 
 
 (8) No proceeding under this section shall be deemed defec- 
 tive or rendered invalid by any objection of form. R, S. (,). 
 1887, c. 14;'., 8.30(6-8). 
 
 33. — (1) A tenant may set-ofF against the rent due a debt Hight of set- 
 due to him by the landlord. "*^' 
 
 (2) The set-off may be by a notice in the form or to the 
 effect following, and may be given before or after the seizure : 
 
 Take notice, that I wish to set-off ugainst rent duo by me to you, the 
 debt which you owe to ine ou your promissory note for , dated 
 
 (or for eight months' wages at $20 per month, $160, or as tlie 
 case may he). 
 
 (3) In case of such notice the landlord shall only be entitled to 
 distrain for the balance of rent after deducting any debt justly 
 due by him to the tenant. R. S. O. 18t>7, c. 143, s. 29. 
 
 34. — (1) In case of an assignment for the general benefit Lien of land- 
 of creditors the preferential lien of the landlord for rent shall be ^"/^ ^"' r*""* 
 rt.'stricted to the arrears of rent due during the period of one ment for bene- 
 year last previous to, and for three months following, the fit of creditors, 
 execution of such assignment and from thence so long as the 
 assignee shall retain po.ssession of the premises leased. 
 
 (2) Notwithstanding any provision, stipulation or agree- AssiRnee may 
 meat in any lease or agreement contained, in any case of an retain possefc- 
 assignment for the general benefit of creditors, or in case an ma^na'er'of 
 order is made for the winding-up of an incorporated company, te""- 
 l)eing lessees, the assignee or liquidator shall be at liberty 
 within one month from the execution of such assignment or 
 the making of such winding-up order by notice in writing 
 under his hand given to the lessor to elect to retain the 
 premises occupied by the assignor or company as aforesaid at 
 tlie time of such assignment or winding-up, for the unexpired 
 term of any lease under which the said premises were held, or 
 for such portion of the said urm as he shall see tit, upon the 
 terms of such lease and paying the rent therefor provided by 
 said lease. 58 \ c. 26, .s. 3. 
 
 a 2 
 
818 
 
 Chap. 170. 
 
 LANDLORD AND TENANT. 
 
 Sec. 35. 
 
 HK-ENTRY OF LANDLORD. 
 
 Oommnn law 
 Strict demand 
 of rent dis- 
 pensed with 
 when landlord 
 entitled to 
 re-enter. 
 
 Provigo, 
 
 35. Where a hmcUord has by law . right to enter for non- 
 payment of rent, it .shall not be necessary to demand the i-ent 
 on the day when due, or with the strictness retjuired at com- 
 mon law, and a demand of rent shall suffice notwithstanding 
 more or less than the amount really due is demanded, and not- 
 withstanding other requisites of the common law are not com- 
 plied with : Provided that, unless the premises are vacant, the 
 demand be made fifteen days at least before entry ; such de- 
 mand to be made on the tenant personally anywhere, or on his 
 wife or some other grown up member of his family on the 
 premises. R. S. 0. 1887, c. 143. s. 31. 
 
 SALE OF GROWING CROP.S. 
 
 
 Sale of grow- Sfi. When growing or standing crops, which may be seized 
 ing crops. ^nd sold under execution, are seized for rent, they may, at the 
 option of the landlord or upon the request of the tenant, be 
 advertised and .sold in the same manner as other goods, and it 
 shall not be necessary for the landlord to reap, thresh, gather 
 or otherwise market the .same. R. S. O. 1887, c. 143, s. 32. 
 
 Liability of '^'^- ^'^Y person purchasing a growing crop at such sale, 
 
 purchaser of shall be liable for the rent of the lands upon which the same 
 growmgcrops. jg growing at the time of the sale, and until the crop shall be 
 removed, unless the same has been paid or has been collected 
 by the landlord, or has been otherwise satisfied, and the rent 
 shall, as nearly as may be, be the same as that which the tenant 
 whose goods were sold was to pay, having regard to the quantity 
 of land and to the time during which the purchaser shall 
 occupy it. R. S 0. 1887, c. 143, s. 33. 
 
 APPLICATION OF CERTAIN SECTIONS. 
 
 Application of 38, Sections 30 31, 32, and 33, shall apply only to- 
 and 33^^' "^^ tenancies created on or after the first day of October, 1887. 
 R. S. 0. 1887, c. 143, s, 42. 
 
 PROTECTION OF GOODS OF LODGERS FROM DISTRESS. 
 
 Declaration 
 by boarder or 
 lodger that 
 immediate 
 tenant has no 
 property in 
 goods dis- 
 trained. 
 
 Ii9. If a superior landlord shall levy or authorize to be 
 levied a distress on any furniture, goods or chattels of any 
 boarder or lodger for arrears of rent due to the superior land- 
 lord by his immediate tenant, the boarder or lodger may .serve 
 the superior landlord, or the bailiff* or other person employed 
 by him to levy the distress, with a declaration in writing, 
 made by the boarder or lodger, setting forth that the immediate 
 tenant has no right of property or beneficial interest in 
 the furniture, goods or chattels so distrained or threatened to 
 be distrained upon, and that such furniture, goods or chattels 
 
2. 35. 
 
 Sec. 42. 
 
 LANDLORD AND TENANT. 
 
 Chap. 140. 
 
 819 
 
 noii- 
 3 i-ent 
 
 coin- 
 n<ling 
 
 not- 
 
 com- 
 it, the 
 ch de- 
 
 >ii hi.s 
 n the 
 
 are the property or in the lawful possession of such boax'der or 
 lodger ; and also setting forth whether any and what amount 
 by way of rent, board or otherwise is due from the boarder 
 or lodger to the said immediate tenant ; and the boarder or 
 lodger may pay to the superior landlord, or to the bailiff or 
 other person employed by him as aforesaid, the amount, if any, 
 so due as last aforesaid, or so much thereof as shall be sufficient 
 to discharge the claim of the superior landlord ; and to such 
 declaration shall be annexed a correct inventory, subscribed by 
 the boarder or lodger, of the furniture, goods and chattels 
 referred to in the declaration. R. S. 0. 1887, c. 143, s. 44. 
 
 40. If a superior landlord, or a bailiff or other person Penalty, 
 employed by him, after being served with the before mentioned 
 declarat/ion and inventory, and after the boarder or lodger shall 
 
 have paid or tendered to the superior landlord, bailiff or other 
 person, the amount, if any, which, by the last preceding section, 
 the boarder or lodger is authorized to pay, shall levy or pro- 
 ceed with a distress on the furniture, goods or chattels of the 
 boarder or lodger, the superior landlord, bailiff or other person 
 shall be deemed guilty of an illegal distress, and the boarder 
 or lodger may replevy such furniture, goods or chattels in any 
 court of competent jurisdiction and the superior landlord shall 
 also be liable to an action at the suit of the boarder or 
 lodger; in which action the truth of the declaration and invent- 
 ory may likewise be inquired into. R. S. 0. 1887, c. 143, s. 45. 
 
 4 1 . Any payment made by a boarder or lodger pursuant to payment by 
 section 39 of this Act shall be deemed a valid payment {'"f"^^' "' 
 on account of the amount due from him to the immediate superior 
 tenant mentioned in the said sect'on. R. S. 0. 1887, c 143, s. 46. landlord. 
 
 4/J. The declaration hereinbefore refened to shall be made Declaration 
 under and in accordance with The Canada Evidence Act, 1893. *»«*' ™»<le. 
 R.S. 0.1887,0. 143,. s. 47. 
 
 [Ad to costs of Distress for Rent, see Cap. 75.] 
 
820 
 
 LANDLORD AND TENANT. 
 
 NOTES. 
 
 I 
 
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 R 
 if. 
 
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 History. Tlie law of landlord and tenant is, to a large extent, affected 1)_\- 
 the Knglish Statutes in force on the l.^tli day of October, 1792 ; R.S.O. c. Ill, 
 s. 1, Tlie princiiial Knglisli Statutes dealing witli the subject in force are : 
 
 1266. — .Tl Hen. '.\, Stat. 4. Owner may feed cattle impou'ided. Beaats of 
 tlic plow or sheep are not distrainal)le. 
 
 1267 — .52 Hen. .'{, Stat. 4. (Statute of Marlbridge) Distress ought m.t to be 
 excessive. 
 
 Stat. 15. Distress not to be taken on the highway or street. 
 
 Stat. 23. No waste to be committed without license. 
 
 127.''i— 3 Edw. 1, Stat. 16, 17 : (Westminster the First) Distress not to Ije 
 driven out of the County. 
 
 1278 — 6 E.iw. 1, c. 1, .s. 2 : Plaintiff in replevin entitled to costs. 
 
 C. 5 : Waste, tenants for life or years liable for. 
 
 1285—13 Kdw. 1, c. 2, 3, 37 : (Westminster the Second) Replevin Bonds. 
 
 1290—18 Kdw. 1, c. 1 : Attoinments. 
 
 1381— .') Rich. 2, Stat. 1, c. 7 : Forcible entrv (liut see Criminal Code 1892, 
 s. 89). 
 
 1429—8 Hen. 6, c. 9 : Forcible Entr>-. 
 
 1515 — 7 Hen. 8, c. 4. s. 3 : Defendant in replevin entitled to costs and 
 damages. 
 
 1529—21 Hen. 8, c. 9, s. 3 : Extends 7 Hen. 8, c. 4, s. 1. 
 
 1540—32 Hen. 8, c. 9 : Rights of Entiy. 
 
 C. 34 ; Assignees of reversion take benefit of covenants and agreement 
 of lessees. 
 
 C. 37 : Distress may be by executors or administrators, or by tenants, pttr 
 autre vie after death of re-ilui que vie, 
 
 1554 — 2 Ph. & Mary, c. 12, s. 1 : Cattle distrained must not be driven 
 out of the hundred, rape, wapentake or lathe except to a pound o\'ert without 
 the shire, not above three miles. 
 
 S. 2. Costs of impf unding. 
 
 160<) — 4 .las. 1, c. 3. Defendant in replevin, whether claiming property or 
 
 not, entitled to costs. 
 
 1623-21 Jas. 1, c. llj. Forcible Entry (but see Criminal Code 1892, s. 89). 
 C. 16. Limitation in aetio'is without specialty for six years. 
 1665 — 17 Car. 2, c. 7, s. 2. Defendant proceeding by Writ of in(|uiry shall 
 recover costs. 
 
 S. 4. If value of cattle <listrained 's insufficient, distress may be made again. 
 
 I(i(i6. 19 Car. 2, c. 6. Cexfiii que vie abroad accounted dead if no sufficient 
 proof otherwise. 
 
 1677 — 29 Car. 2, c. 8, s. 1. (Statute of Frauds) Leases by parol create 
 estate by will. 
 
 S. 2. Leases for three years, excepted if rent is two-thirds of improved 
 value. 
 
 1690 — 2 Wm. & M. Sess. 1, c. 5, s. 2. Power to sell distress after notice if 
 not re))levied in five days ; goods must be appraised by the sworn appraisers 
 and sc'.d for best price, overplus to be held for owners use. 
 
 S. 3. Hay, straw or corn in sheaves or cocks or loo.se may l)e distrained. 
 
 S. 4. Treble damages and treble costs for pound breach or rescue. 
 
 S. 5. If no rent due at time of distress and goods sold, double value of 
 goods recoverable and full costs. 
 
 1705 — 4 Ann c, 16, .<?. 9. Crants of reversion valid without attornment of 
 tenant. • 
 
LANDr.ORD AND TENANT. 
 
 ^21 
 
 ted liy 
 c. Ill", 
 
 are : 
 
 asts of 
 t to l)e 
 
 to be 
 
 K Ann c. IS, s. l-."). Remaindermen, reversioners or exp.'ctant heirs have 
 right to production of ce.nlui que ri<\ 
 
 1709 — 8 Annee. 14, s. 1. No uoods to be taken in execution unless execution 
 creditor pay the landlord or his oailitt' the rent due up to one year's arrears. 
 
 .S. 2. Where fraudulent and clandestine removal, goods might he followed 
 for five days (extended by 11 (ieo. 2, c. 19, s. 1.) 
 
 iSs. 0, 7. Distress may be made within six months after determination of 
 term for rent due before. 
 
 1731 — 4 Geo. 2, c. 28 s. 1. Double value iccoverable l)y suit on 1 olding 
 over after landlord's notice to (juit. 
 
 S. o. Distress for rent seek ; 
 
 fS. 6. Renewals without surrender <if undei- leases ; 
 
 1738 — 11 (ieo. 2, c. 19 s. I. Where goods of tenant ; (Martin v. Hutchinson 
 (1891) 21 O. R. .388), fraudently or clandestinely removed by tenant to prevent 
 distress for arrears thw. or made ])ayal)le, they may bo distrained witliin tliirty 
 days. 
 
 S. 2. Excepts goods bona tide sold foi valuable consideration l>efore seizure. 
 
 .S. 3. Tenants and persons wilfully and knowingly assisting them in such 
 fraudulent and clandestine removal or concealment are liable in action of debt 
 to double value of goods carried ofl'or concealed. 
 
 (S. 4. If goods carried off or concealed do not exceed t.W, oflender or 
 offenders may be fined double value of sucli goods before two justices of peace, 
 and if unpaid, distress may be levied andif insufficient offender may be committed 
 for .six months. 
 
 S. ■') & 6. Ap])eal given to next general or ((uarter sessions from order. If 
 recognizance be given in d(ml)lo the sum, order not to be executed. 
 
 S. 7. If goods locked up, building may i)e broken open in day time, with 
 assistance of peace officer, and if in a bouse oatii must first be made l)efore 
 justice of peace. 
 
 S. 8. Cattle or stock on common appendant oi' appurtenant to premises 
 may be distrained. 
 
 S. 8 & 9. (Jrowing crops may l)e distrained and when ripe to l)e cut and 
 appraised and sold ; notice of place of storing to be given in one week. 
 
 S. 10. Distress may be impounded and sold on premises. 
 
 S. II. Attornments to stranger void vmless under decree or oi'der or to a 
 mortgagee after mortgage forfeited or with consent of landlord. 
 
 S. 14. Use and occupation may be recovercfl for. 
 
 iS. 15. Rent aj)portioned where tenant for life dies before a gale daj'. 
 
 S. Ifi & 17. Recovery of <lescrted premises before justice of peace where one 
 year's rent in arrear. 
 
 S. IS Where tenant holds over after givinga notice to quit, double rent may 
 be distrained for. 
 
 8. 19. Where rei>t due, distress not iinlawfid for irregularity and oidy 
 H|)ecial <lamage recoverable. 
 
 S. 20. Parties distraining may tender amends. 
 
 .S. 21. Defendant may plead the general issue in actions of trespass and 
 illegal distress. 
 
 S. 22. Defendant may plead that plaintiff held premises at certain rent then 
 past due. 
 
 S. 23. Replevin Ronds in two sureties in double value of goods to be given 
 by plaintiff' to officer replevying. 
 
 1774 — 14 (ieo. 3, c. 78, s. 83. Insurers ma> expend insurance moneys in 
 e-building. (Repealed by .W V. c. 26, s. If) O.) 
 
 S. 86. Unless specially agreed tenant nob liable for accidental tire ; (Jaston 
 v. Wahl (186(1) 19 U. C. P. 586 ; Furlong v. Carroll (1882) 7 A. R. 145, 169. 
 
 WbatisRent? Rent is a certain profit issuing out of lands and tencintnits 
 corporeal ; Gilb 9. It is usually in money but may be jiayablc in goods, ser- 
 vices or manual operations ; Nowery v. Connolly (1869) 29 U.C. R. 3!) : Doe v. 
 Benham(lS45) 7 Q. »• 976; Doe v. Hinde (1843) 2 Moo. & R. 441 ; Marl 
 borough V. Oslxirn (1864) 5 B. * S. 67 ; it may l)e payable one-half in cash and 
 
822 
 
 LANDLORD AND TENANT, 
 
 
 
 7, 
 
 C 
 2 
 
 < 
 
 r 
 
 30 
 
 > 
 
 90 
 
 one-half in work ; Joiios v. Montgomury (1870) '2\ C P. 157 ; or one third of 
 11 crop ; Richardson v. Trindur (1862) 11 C. 1". 130. 
 
 Rent servioo is where tlie tenant holds the land of ids h.rd by fealty and 
 certain rent, or liy a certain rent tf)gether with iioniage, fealty or other ser- 
 vices. Distress is an incident of rent service; (lilh. Rents. 
 
 Rent charge is where land is (ijuirged with a rent iiy deed or will with power 
 to distrain for the same, Imt the owner has no reversion in tiio land. 
 
 Rent .seek or l)arren rent is, in effect, nothing nuire than a rent reserved l>y 
 deed or will, l>nt without any clause of distress. A right to distrain for rent 
 seek, however " as in the ca.se of rents resei'ved upon lease'' is given hy the 
 Statute 4 (!eo. 2, e. 28 .s. ") ; Hope v. White |( 1869) 19 C. V. 479 ; Harpelle v. 
 Carroll (189(i) 27 O. H. 240. 
 
 An annuity is an annual sum of money granted to another in fee, for life or 
 years, which charges the person of the grantor only ; or it may be due hy prc- 
 .scription, which always implies a grant. It may he distrained for, where the 
 deed creating it ex])ressly confers a power to tlistrain ; ('hapman v. Heecham 
 (1842) 3 i). B. 723 ; hut not generally in other cases ; (Jo. Litt. .'{2 a. 
 
 Reversion or Remainder Not Now Necessary- Prior to the loth April, 1895, it 
 was necessary that the landlord he legally entitled to the immediate I'eversion 
 or leniainder in the land demised to give him the right of distress, and if the 
 landlord afterwards assigned the reversion either absolutely or by way of 
 mortgage the remedy bv disti'ess for arrears was lost ; Daui)hinais v. Clark 
 (18S5) .3 M. L. R. 225;"Meagiier v. Coleman (1880) 1,3 N. S. R. 271 : VVittrock 
 V. Halliman (1856) 13 U. C. R. 1.35; Oliver v. Mowat (1874) 34 U. C. R. 
 472; l)ut in 1895, .58 VHct. c. 2(i (O) s. 4 was passed'to avoid that difficulty, 
 but that section was not happily expressed ; Haipelle v. Carroll (1896) 27 <). 
 R. 240 ; and it was repeali'd, and 59 Vict. c. 42 s. 3 substituted. Section 3 
 renders it unneces.sary that the relation of landlord and tenant should depend 
 upon tenure oi' service ; the section is not retro.spective; Harpelle v. Carroll 
 (1896)27 (). R. 240. 
 
 Apportionment, 'he a|)|)ortionnient sections, 4-8 inclusive of the act, .seem 
 rather out of place in tlie law of landlord and tenant. These sections are 
 taken from the Apportionment Act, 1870, (33 & 34 Vic. c. 35 Imp.) 
 
 Rent may he attached before the gale day, l)ut only the sum due up to the 
 time of attachment ; Massie v. Toronto Ptg. Co. (1889) 12 P. R. 12. Di.stress 
 for the ])ortion attached is illegal ; Patterson v. King (1896) 27 0. R. 56. In 
 the Division Court it was held by Ketohuni J. J. following Webb v. Stenton 
 ■(1883) 11 Q. B. 1). 518 at p. 523, that the apportioned part couhl not be 
 attached, asunder R. S. (). c. 60, a debt to be attachable must be "due or 
 owing"; CJhristy v. Casey (1895) 31 C.L.,J. 35; but Dean Co. J. decided that such 
 rent was attachable ; Hir-niingham v. Malone (1S96) .32 C.L..T. 717; Patterson 
 V. Richmond (1881) 17 C.L.J. 324. Before the gale ilaj' the apportioned part 
 of rent is not a debt ; Re United Club & Hotel Co. (1889) W. N. 67 ; a liquid- 
 ator is not liable for an accelerated rent, but only for the apportioned part, so 
 long as he retain.s possession ; Strackell v. Charlton (1895) 1 Ch. 378. Whore 
 a tenant pays rent <|uarterly and becomes bankrupt between two (juaiters, the 
 rent is apportionable to date of adjudication, and aftei' the expiry of the 
 current ((uarter, maybe distrained for; Re Howells, Ex parte Mandlebarg & 
 Co. (1895) 1 Q. B. 844. 
 
 The apportionment takes phu'c when a lease is assigiie<l over by a trustee in 
 bankruptcy; Swansea Bank v. Thomas (l{i79) 4 Kx. 1). 94 ; Hopkinson v. 
 Lovering (1883) 1 1 Q. B. 1). 92, and also where the lease is determined by " re- 
 entry, death or otherwise,'" and it would seem t(» include the case of surrender 
 or re-entry for forfeitiu'e ; s. 5. Apportionment was made when the lease was 
 ended without any fault of the lessee ; Kinnear v. Aspden (1892) 19 A.R. 468. 
 
 Whore the lessee sui-rendered. the rent was only collectable to the last gale 
 day ; Palmer v. Wallbridge (1888) 15 S. C. R. 650 ; 14 A. R. 460 ; and when 
 the lessor gave a second lea.se to a third party, revoking the first lease, he 
 could only collect his rent to the last gale day ; R. v. Davenport (18,59) 16 L^ 
 C. R. 411. 
 
 There can be no apjKH'tionnient where there is a wrongful eviction liy the 
 lessor ; Clapham v. Draper (1883) 1 C. & K. 484; i)ut see Klvidge v. Mehlon 
 (1888) 24 L. R. Ir. 91. 
 
 Where a prior mortgagee brings ejectment against the mortgagor's lessee, 
 the rent is app<irtioned to the date of the writ ; Barnes v. Bellamy (1880) 44 
 U. C. R. .303 ; Boulton v. Blake (1886) 12 Q.O.R. 532 ; Hartcu]) v." Bell (1883) 
 
pird of 
 
 Ity and 
 
 liur ser- 
 
 power 
 
 Irved l)_\- 
 for rent 
 l)y till! 
 [•pelle V. 
 
 life 111' 
 l)y pit'- 
 liere tlie 
 peeohiini 
 
 S!»5, it 
 
 (•V(;rsion 
 
 I if tlie 
 
 wiiv of 
 
 C'laik 
 
 ^^'ittl■(K•li 
 
 U. C. R. 
 
 iffloultv, 
 
 7 (). 
 
 e(:tion '.i 
 
 depund 
 
 Carroll 
 
 • LANPLORU AND TENANT. 
 
 1 (,'. \ K. H) ; Mayor of HwaiiHea v. Thomas (1S82) 10 Q. B. U. 48 ; and where 
 a prior mortgagee wells the demised property under the power of sale, and tiie 
 lisase l)eeoines determined therehy, tlie tenant is lial)le to pay rent up to the 
 date of sueh determination, and tlii! principle was a|)i)lied ii'i favor of a sulise- 
 
 828 
 
 <|uent mortgagee, who notified tlie tenant 
 Aspden (1892) 19 A. H. 4(!S. 
 
 to pay the rent to him ; Kiiinear v. 
 
 These seetions seem to he retrosjjeetive ; Capron v. Caproii (1874) L. H. 7 
 'A{. 2SS ; Re Chines Kstate (1874) L. R. 18 Kq. 21.S ; Hashiek v. Pedlev (lS7r)) 
 .. R. 19 K<i. 271 ; Constahle v. Constahle (1879) 11 Cli. 1). 681. 
 
 L, 
 
 No apportioned part of any payment heoonies payahle until the time, for 
 payment of the entire portion is past ; .See. ">. 
 
 ThcBe seetions apportion not milv rights, hut liahilities also ; Re Howell 
 (189,')) 1 Q. B. 844 ; Re Wilson ( l8!i:V| (12 L.T.(.>.T5. (i28 : Hopkinson v. Lovering 
 (1H8,S) 11 Q. B. 1). 92. 
 
 The Aet (hies not a|iply where a testator forgave his tenant all rent or 
 arrears whi(;h might he due or owing at the tiiiH! of his decea.se, and the rent 
 was not appoitioned where the testiitor (Wnl hetween two gale davs ; Re Lueas 
 (188(i) -).-• L. J. Ch. 101. 
 
 Annuity. Where under an annuity hond designated inteiehangeahly a 
 " l>oliey " and "annuity hond " tiie annuity was payahle quarterly, and the 
 testator died hetween ijuarter days, the pavment was appoitioned to the <leath 
 of the testatoi' ; Cuthhert v. North Am. Life As.sce Co. (1894) 24 O. R. ijll. 
 
 Under sec. 8 parties mav eontraet themselves out of the Act ; Linton v. 
 Imperial Hotel Co. (1889) Hi A. R. .S.S7. 
 
 Apportionment of condition of reentry. The assignee of a part of t he reversion 
 may exercise the right of reentry for non-yiayment of an apportioned part of 
 the rent ; see. 9. 
 
 Merger of Reversion. .Merger of a term, is where there is a union of the 
 term with the immediate reversion, hotli being vested at the same time in one 
 person, in the .same right ; Bae. Ahr.. 'I'it. Ileuses (R); .Salmon v. Swaiid(1622) 
 3 Cro. R. .lae. (il9 ; Burton v. Barclay (1831) 7 Ring. 74r). 
 
 Formerly if a tenant for a term of years leased for a less term and assigned 
 his reversion, and the .issignee took a conveyance of the fee, hy which his 
 former reversionary inteicst was merged, the (covenants of the suh-lease inci- 
 dent to that reversionarv int<!rest were therehv extinguished : Wehh v. Rus- 
 sell (1789) 3 T. R. 393 : I R. R. 72;") ; Thorn v.'Woolcomhe (1832) 3 R. & Ad.- 
 .'iHli ; hut now see. 10, which is taken from Imp. Act 8 & 9 V. c. 10(>, s. 9, pre- 
 serves the incidents and obligations as they would have subsisted liut f<ir the 
 merger or snrreniler of the reversion. 
 
 By the Judicature Act, R. S. O. c. ."il. s. ."i8 (3), it is enacted 
 
 "There shall not be any merger by operation of law only of aiiv estate, the 
 beneficial interest in which would not jH'ior to The Ontario Judicature Act, 
 1881, have been deemed merged or extinguished in equity '" ; ante, p. IrfO. 
 
 Forfeiture. -Re-entry. At common law, when a forfeiture was ('laimed hy 
 the landlord, for non-payment of rent reserved in a lease, great strictness was 
 required. .\ demand of the precise sum of ie:it had to be made upon the de- 
 mised land before sunset on the <lay when due : if any recpiisite was omitted, 
 the forfeiture was not complete. Where the lease, liowever, gave a right of 
 re-entiy for non-payment of rent "though no formal or legal demand should 
 be ma(le for payment thereof," ejectment might be maintained, without anv 
 entrv or dema'nd of rent ; Doe v. Masters (1824) 2 B. & C. 490 : ('am])bell v. 
 Baxter (1864) 1") C. P. 42 at p. 47, per RiihardsC. J. 
 
 The denianil at common law- 
 fa) must be made by landlord or his agent <lulv authorized in that behalf : Roe 
 V. Davis (18(»(i) 7 Kaat 3(53 ; Toms v. Wilson (18()2) 32 L. J. (). R. 33. 
 
 (b) must be made on very last day ; Doe v. Roe (1849) 7 C. B. 134 ; Doe v. 
 
 Wandless (1797) 7 t. R. 117, 4 R. R. .393; .Smith ami Bustard's case 
 (1.589) 1 Leon 141. 
 
 (c) must be made a convenient 'time before and continued till sunset ; VVoo<l 
 
 anil Chiver's case (l.')73) 4 Leon 179 ; Aeoeks v. Phillips (1860) ;") H. & 
 N. 183. 
 
824 
 
 LANDLORD AND TENANT. 
 
 i 
 
 C 
 
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 < 
 
 fr 
 
 (/. 
 
 r 
 
 r 
 > 
 
 -< 
 
 (il) must 1)0 mnde on the liiiid and at tlie most iiotoriDUs |)laii' on it; (.'()l«; 
 Kjec. 413 ; and if the lease or agiceiiiont mentions a phicc where rent is 
 to l)e paid, it must be made tiiere ; Honough's case (1506) 4 Co. R. 73 ; 
 Busltin V. Kdmonds (1.595) Cro. Kliz. 41.5. 
 
 (e) must 1)0 made of 'lie exaet sum tiieii pavahle ; Fabian and \Vind.sor"s ease 
 (1.5SK)) 1 Leon 3(»5 ; Fabian v. WinstJ.n (l.")H9) (^ro. Eliz. 209. 
 
 (t) must be of only the last ((uarter, even if more is du(! ; Scot v. Scot (1.588) 
 Cro KHz. 73 ; Tonikins v. Pincent (1702) 7 Mod. 97 ; Doe v. Paul (1829) 
 3 C. & P. 61.S. 
 
 The common law strictness is modified by s. .3.5, liut that only applies where 
 the demand is made fifteen days at least before entry, indoss the premises are 
 vacant ; it can be made on the tenant anywhere but if made oi, his wife, or 
 some other grown up member of his family, it must be still made on the 
 premises. 
 
 In cases provitled for in section II, unless otherwise agreed, where the lent 
 remains unpaifl for fifteen days, although no formal demand thereof shall have 
 been made, there is the right in the landlord to re-enter and under sccticni 20, 
 where a half year's rent is in arrear, there is no necessity for any fornial 
 demand or re-entry. 
 
 The agreement foi- re-entry is deemed to be included in every demises by 
 parol or in writing made after 2.5th March, 1880 ; s. 1 1. 
 
 Where the lease gave a right of re-entry " if and whenever any one quarters 
 I'ent should bo arrear for twenty-one days, and no sufficient distress could he 
 found," and a distress yielded only sufficient to ])ay two out of three ((uarters 
 rent owing, the right of re-entry was enforced ; JShepberd v. Rerger (1891) 1 
 Q. B. 597. Where a lease provided for re-entry if the lessees, being a Coni- 
 panj', should enter into liquidation voluntary' or compulsory, and the lessees, a 
 solvent company, went into li(juidation for reconstruction purposes only, there 
 was a right of I'e-onti'V ; Horsey v. Steiger (1898) 2 Q. B. 259. 
 
 Waiver of Forfeiture. A distress is an acknowledgment of the subsistence of 
 the tenancy up to the time that the rent distrained for became duo and will 
 therefore bo a waiver of any forfeiture committed before that time ; Walrond 
 V. Hawkins (1875) L.R. lO'C.P. .342 ; Ward v. Day (1803) 4 li. &; S. 380 : 5 B. 
 & 8. .3.59 ; but if the breach is a continuing one the forfeiture will not lie 
 waived ; Doe v. Peck (1830) 1 B. & Ad. 428 ; 35 R. R. 339. 
 
 A landlord who sued for possession for non-payment of rent, and also 
 cla' lied arrears not realized on a prior distress, was entitled to the rent but 
 was denied possession ; Kirkland v. Briancourt (18iK)) T.L.R. 441. 8ee also 
 Linton v. Imperial Hotel Co. (1889) 16 A.R. .3,37 ; Baker v. Atkinson (1886) 11 
 O.K. 735 ; (1887) 14 A.R. 409. 
 
 If the lessor bi'ings ejectment for a forfeiture, and afterwards accepts rents, 
 distrains oi' sets up as a cause for forfeiture, a subsefjuent non-payment of 
 rent, it is no waiver ; Doe v. Meux (182i5) 4 B. & C. 606, 1 C. & P. .340 ; Jones 
 V. Carter (1846) 15 M. & W. 718 ; (irimwood v. Moss (1871) L.R. 7 C.P. .300, 
 2.39 ; Toleman v. Portbury (1872) L.R. 7 Q.B. .344. 
 
 The landlord after commencing an action of ejectment may distrain for 
 rent, subsequently accruing due, and the receipt of such rent will not pir m- 
 set up the former tonancv which ended on the election to forfeit manifested bv 
 the issue of the writ ; McMullen v. Vannatto (1894) 24 O.K. 625. 
 
 The lessoi' may be estopped from declaring a forfeiture, where after know- 
 ledge of the breach, he permits the lessee to expend large sums of money with- 
 out objection, which would be lost if a forfeiture were allowed ; Benavidcs v. 
 Hunt (1891) 79 Texas 383 , also see Ramsdon v. Dyson ( 1865) L.R. 1 H.L. 129 ; 
 Plimmer v. Wellington (1884) 9 A.C. 699. 
 
 Mere knowledge of or acquiescence in an act constituting a forfeiture is no 
 waiver, but permitting expenditure of money in improvements, or receipt of 
 rent may bo ; McLaren v. Kerr (1876) .39 U.C.R. .">07. 
 
 If the lessor brings an action for possession claiming forfeitui'c foi' non-))ay- 
 nient of rent, and also for the arrears, the election to forfeit is complete, and 
 payment of arrears and costs before trial does not allow the lessor to retract 
 the forfeiture ; Donison v. ]Maitland (1893) 22 O.R. 160. 
 
 An unqualified demand of rent woidd appear to waive a forfeiture ; Doe v. 
 Birch (1830) 1 M. & W. 402. 
 
: ri'ht is 
 R. 73 ; 
 
 Bs where 
 iseH are 
 wife, or 
 111 the 
 
 tho lent 
 lall have 
 iticm 20, 
 f<iinial 
 
 iiisc l>v 
 
 Doc V. 
 
 LANDLORD AND TENANT. 
 
 If rent iH (luniuiuled without ({ualiticutioii ami paid, a receipt " without 
 prejudice " will not prevent the payment from wivis-ing a forfeiture ; Strong v. 
 Stringer (1HS!»)«1 L.T. 470. 
 
 Receipt of rent of telepiioiie wires for one day after the tenancy would 
 otherwise have deteiuiined, hy reason of a notice, prevented the tenancy from 
 coming to an end ; Keith v. National 'rclephoiK,' Co. (IS!I4) 2 Cii. 147. 
 
 Where the lessee reiiuested the lessor to credit a balance of a note on rent, 
 hut it was credited on another account, it was no acceptance'of rent ; McDon- 
 ald V. Peck (185!») 17 U.C.R. 270. 
 
 If there is a continuiiii,' hrcacli of covenant, the forfeiture may he claimed, 
 even though rent was accepted after the breach commenced but before it 
 emled ; Leighton v. Medley (1882) I O.K. 207. 
 
 The following are covenants wliicli may have continuing breai^hes : To keep 
 in repair, Aiiiley v. lialsden (18r)7) 14 U.C.R. ")35 ; to keep buildings insureci. 
 Doe V. (iladwin (1845) 6 Q.H. \)r>;i ; I'entell v. Harliorne (1848) II (^.H. 3«8 ; 
 Hyde v. Watts (184S) 12 M. k W. 2r)4 ; Doe v. I'eck (IS.SO) 1 I?. & Ad. 428, 
 35 R.R. 330; to keep an hotel furnished, Ro8.sin v. Josliii ( 18.")!») 7 <!r. 108; 
 not to use rooms in a particular iiiainier. Doc v. Woixlbridge (1820) B. & C. 
 37(), 33 R.R. 203. 
 
 Hy s. Hi actual waiver of a covenant or condition in a particular instance is 
 not to he extended <ii- to be deemed a general waiver, unless such intention 
 appears. 
 
 Relief against Forfeiture. A les.see is not entitled, as of riglit, to relict 
 against foifeitiin^ for non-payment of rent, tliat relief niav be refused on col- 
 lateral grounds ; Coventry v. McLean (1802) 22 O.R. 1 ; (18!I4) 21 A.R. 17<). 
 
 Where the lease provided '• in case the saiil ))remises . . become 
 
 and remain vacant and unoccupied for tlie ))eriod of ten days, without the 
 written consent if the les.sors, this lease sliall cease and be void, and the term 
 hereby creatc<l expire and be at an end, and the lessor may re-enter, 
 as in the case of a holding over, the lessee cannot take advantage of that con- 
 dition, it is a condition sub.sequent, a breacli of wliich <ouhl only avoid the 
 lease at the instance of the lessors ; Palmei' v. Mail Printing Companv (1807) 
 28 O.R. (M(i. 
 
 Sec. 13 was taken from Imp. Act 44-4.") Vic c. 41, s. 14 ; it is retrospective. 
 ss. 8 ; but the provisions do not afi'ect or extend to the case of a mining lease, 
 ss. () (b), or where forfeiture is claimed for breach of a covenant or condition 
 against assigning, underletting, parting with the pos.session or disposing of the 
 land Ifeased, nor where the lessees interest is seized under execution, nor to 
 forfeiture for bankrupti'y ; ss. G (a). 
 
 The lessee s interest cannot lie sold uii<lcr a Division Court execution ; R.S. 
 0. c. (iO s. 218 docs not cover it ; and where th(! landlord purchased his ten- 
 ant's term under such an execution, and brought ejectment on the ground that 
 there was a merger, and tliat he was entitled to immediate possession, he 
 couhl not recover; Diiggan v. Kit.son (18(il ) 20 L'.C.R. 316; but the sheriff 
 may sell it under a ti. fa. but cannot sell part of the term'. Osborne v. Kerr 
 (185{)) 17 U.C.R. 134. 
 
 A lessor may liecome purchaser if his lessee's interest at SherifTs .sale, under 
 a third party's execution, and the term will merge in the fee, and the lessor 
 will be entitled to pos.session; Stroud v. Kane (1856) 13 U.C.R 459; but 
 there must be an assignment by deed by the sherill' of the term to the jiur- 
 chaser ; Duggaii v. Kitson (1861)20 U.C.R. 316. Forfeiture or re-entry for 
 nonpayment of rent is specially exc'pted from the provisions of this section ; 
 88. j. 
 
 Under Sec. 30 of the Judicature Act, R.S.O. c. 51, nnfi: p. 171, the High 
 Court has power to relieve against forfeiture for breach of covenant, in a lease, 
 to insure where no loss or damage has happened and where at the time of 
 application for relief, the insurance is in force in conformitv with the covenant. 
 
 Notice Of breach. A sutticicnt notice is a condition jircccdent to forfeiture 
 in cases where notice is required; Horsey v. Steigcr (1800) 2 Q. R. 79. The 
 notice must be given in siicli detail as will enable the lessee to understand 
 what is complained of, so that he may have an op|)oitunity of remedying the 
 breach before action brought. A mere general notice of breach of a sp(!cified 
 covenant, such as " vou have broken the covenants for repairing the inside and 
 outside of the hou.ses'' describing them, is not sufficient ; Fletcher v. Nokes( 1897 \ 
 1 Ch. 271 ; followed bv Re Serle, Cregorv v. Serle (1898) 1 Ch. 6.V2. A letter 
 
 825 
 
826 
 
 LANDLOHD AND TKNANT. 
 
 a 
 
 C 
 2 
 
 < 
 
 S 
 
 03 
 
 5 
 
 wntten to the ti'tmiit ciiiiipluining i»f Iijh cuttiiii,' tiinlior .withimt authority, 
 and followed l»v a notice j^ivoii in tin; words, '• You have ln'okcii the covi'iiantH 
 as to cutting tituln'i', etc., " without nioic paiticulailv spciih inj; tlic hrcacli 
 and clainiiii^; (oiupcnsation was decidcil to l)i' sutliiicnt : McMuUcti v. Vannatto 
 (1H!((I)24 <). !!. ((25. The notice nuiy l)c j,'o()d, though it allcgcH a breach 
 which has not lieeii coiuinittcd ; (iannell v. Loudon Hiewiugdo. ( HMMljW.N. I(t. 
 
 VViiere the hicaili is capahle of leniedy the notice should rei|uiie the lessee 
 to renie.ly '', liut if the lessor does not want it he need not in addition ask 
 eotnpensatiou in uioncv, and the notice is yood even if conipensiition in luoiiey 
 is not asked for ; Lock" v. Pearcel (IHSm) 2 V,U. -211, (ISIC2) 2 Cli. .'WH, in whicli 
 North London Land Co. v. .lacipies (1HH4) 4!( L. 'P. (ifilt. was disapproved, 
 
 Surveyoi's fees and solicitor's charges in lespect of preparation of the notice 
 of the hreaeli cannot he allowed as eonipensatioTi for' liieach of the covenants 
 in a lease ; Skinners (Jo. v. Knight (IHOI) •> {). ]',. '>])> ; f.ock v. Penrce (IS!).-}) 
 •2 Ch. 271. Where the hreacli of covenant was a contimiing one, the covenant 
 heing one to lepair, and thiie days after the exjiiiatiou of notice to lepair was 
 given a (juarter's iciit .hecaine due. and the lessor lirought an action to leeovei' 
 j)ossession and the ((uarterV lent dui', it was (h'cided that the cov<'nant, heing 
 a contimiing one, no ni^w notice was rci(uired in respect of tiie nonrepair after 
 the expiration of tiie tiirre specified in the irotice, and the claim for rent did 
 irot atl'ect th(! right to ,;ossession iir res))e(^t of iiorr repair- after the date when 
 the rent fell due ; Pentoir v. Bairu'tt (lS(t,S) I (). 15. 27(i. 
 
 Relief need not neee.sHivrily he elainied hy the pleadiirgs ; Mitchison v. 
 Thompsoir (1S83) 1 C. & K. 72. The relief may he askc^tl for' in the 'esHoi''H 
 action to errforce a forfeiture or' right of i-e-entr'v. or' the lessee may ask for 
 relief hy liis own action ; ss. 2. 
 
 The r'clief must he asked for' liefor'c the lessor' has actually I'e-errtered ; 
 Roger.s V. Rice (lH!t2)2('h. 170. This is rrow altered in Kirgland hv Imp. 
 Act, .V) & .^ti Vic. c. 13, s. 2(1). 
 
 An urifler' lessee of part of tire demised premises canirot he relieved fr'orrr a 
 forfeitur'e iircur'red for breach of coverrant to repair' contained in the head 
 lease ; Bert v. (Jiay (1891) 2 Q. B. »8. 
 
 When the trial of an actioir for' r'elief fr-oni forfeiture for' non-payment of 
 rent took pla«'e after the lease expired hy etiluxion of tiirre, no I'elief was 
 granted, everr though the lease gave an option of pur'chase ; Coventry v. Mc 
 Lean (1804) 21 A. R. 170. Relief nray he refiised on collateral grounds ; ili. 
 
 The recovery may be linrited to the land ahirie, and not extend to the build- 
 ings if the latter' have lieerr pui'chaseil bv the lessee fr'onr the lessors ; Tor'onto 
 Hospital Trustees v. Derrham (1880) .SI t'. P. 2(«. 
 
 Licenses. A liceirse iir variatiorr of a sealed instirirrrerrl iirust be uirder' seal ; 
 Kaatz V. White (1808) 19 C. P. 30 : arrtl wliether' l)y deed or rrot, unless it is 
 <'oir))li;d with a valid grant, it is levoiMib'e u))oir r'easonal)le rrotice bv the 
 grantor: Wood v, Leadbitter (184")) 13 M. k W. 838; t'orirish v. Stubhs, 
 (1870) L. H. 5 C. P, .334 ; Mellor v. Watkiirs (1874) L. R. 9 Q. B. 400. S!S. 14 
 & Ifi (Imj). Act, 22*23 Vic.,c. 3.5, ss. 1 & 2), were doubtless passed to abr'(»gate 
 the rule in I)umpor''s case, 1 Snr. L. ('. (9 Ed.) 43, wher-i^ it was decided that a 
 license once given put arr end to the light of re-crrtr-y for' any subsequent 
 assignment witlumt license. Upon a lea.se made pur'suarrt to the Short Forms 
 of Leases Act, eorrtaining a condition for re-entr'v on assigiring or sub-letting 
 without leave, when the lessor gives a license to assign part of the denrised 
 j)renri.ses, he may re-enter' upon the remairrdei' for' breach of covenant not to 
 assign or sub-let, notwithstarrding that the i)r'oviso for' I'e-errtry r'cfpiir-es the 
 right of re-entry on the whole or a part in the name of the whole. 
 
 Where a lessor- gave a liceirse to alien part of the demised pi'enrises, it was 
 held that the license applied to the licen.sed arrarigemeiits only, and that upon 
 subsequent alienation without leave he iirighl r'e-enter' ; sectio.rs 14 and 1.5 are 
 to be read together, the former' lefer'ring geiiei'ally to all cases and making 
 licenses to alien applicable jiro hue rict-, the latter- referring to a specific ca.se 
 of liconsiug the alierratiou of a part and reserving the right of re-entry as to 
 the remainder ; Baldwin v. Wany.er (1892) 22 O. R. 012. 
 
 A lessee obtained from his lessor a license to assigir, on condition that 
 the assignee would not at any time assign without the consent of the 
 lessor, further arr-angenionts were made hv the assignee without license and a 
 forfeiture was upheld : Eyton v. .Tones (187f») 21 L. T. 789. 
 
itliiirity, 
 
 )V(!IllllltS 
 
 lnTiuli 
 'aniiatto 
 
 lucticli 
 V.N. Iti. 
 
 \u' lessee 
 tiori iisk 
 ill iiiiiiiey 
 wllicii 
 (I. 
 
 IC llllticL' 
 
 )\ ('iiiirits 
 •e (lS<i;i) 
 iiveiiiiiit 
 puir was 
 ) recover 
 it, lieiiif^ 
 mil' lifter 
 rent dill 
 lute wlieii 
 
 LAN'DLORI) AND TKNANT. 
 
 Taxes. Ill lense.n tiiiiile after l.st Septeiiiliet, 181(7, the covenant for piiymont 
 vi ta.xeH (loeM nut iiielude Imal iniprovuinent tuxes unU'HH H|K-eilieall\ pro- 
 vided ; N. 17. 
 
 Tii.xeH under tlie Miiiiii'i|Kil Drainage Aet are not iniliiiled in tju* ciiveiiant, 
 unless H|ieeiall\' pmvided for ; H. S. <)., e. AJtl, s, H~ ; lull tiixe.s for repairs 
 to ordinurv drains would lie; Farliiw v. Stevenson (I81MJ) VV. N. 3((, 233; 
 Brett V. kogurs (lH!t7) I <i. \i. iVij. 
 
 Where any lease was made pri-rt- to 1st ISepteniWer, 1807, the lessee is liahle 
 ■under the usiinl cDvenant to j)ay taxes, for local iin|)rovenient taxes and for 
 additions niiide under the Assessuient Act year liy year to the aiiiount of the 
 taxes in arreai or additioii.s made liy the inuniciiiality : Hoiillnn \ . HLike 
 (18H(J) 12 (). H. /il^i, or for a specific rate created li\' a corporation liy-law as 
 well as all otlier taxes; Wilkie v. Toroi-to (I8ti2) IIC. I'. '.iV.K 
 
 Where a lessee covenanted in 1872 in a lease eoinmeiicing 27th Septenilwr, 
 1872, to pay "all taxes, rates or asses-iiuents whatsoever, wlietlier parliamen- 
 tary, municipal or otherwise wliieli iioir iin\ or wliicli diiriu)^ the continuance 
 of said term. . . , shall at ninj linn lie rated, charged, assessed or imposed 
 in respect of the said preiuisc^s," with a proviso for re-entry for hreach, ho was 
 not lialih' for the taxes in 1872 wliicli liad heen assessed and charged on l.'itli 
 April, 1872, liecause tiie words "'all rates, etc. , which now are" refer to 
 the kind or character of the tax assessalile."' and the words "or which shall at 
 iin\ time, etc.," to anv other kind of taxes which might thereafter he inipo.sed ; 
 MaiNaughton v. Wigg (187.-» H.'i U. C. H. 111. 
 
 The tenant is not liahle for taxes where the lease is silent on the suhject ; 
 Dove V. Dove (18(58) 18 C. I'. 424. 
 
 liy the Assessment Act, R. 8. ()., c. 223, s. 2(), "Any occupaiil may deduct 
 from his rent any taxes puiil hy him, if tiiesame could also have heen lecovered 
 from the owner or jirevious occupant, unless there is a special agreement he- 
 tween the (Ktcupant and the owner to the contrary"; Imt this applies only 
 where tiie tenant could have heen compelled to pay the taxes ; Carson v. 
 Veiteh (188.5) (M). R. 7(M). 
 
 Notices to Quit. .A notice to ipiit is a certain rea.soiiahle notice ret|uired hy 
 \a\\ or hy custom, or hy special agreement, to eiialile the landlord or tenant, 
 or the assignees, or representatives of either of them without the consent of 
 the other, to iletermine a tenancy from vcai' to year or month to month ; Cole 
 P:jee. 3(t. 
 
 The notice must he clear and certain in its terms, and not ambiguous or 
 optional. It is not defective if it states that double rent will he charged, as 
 that is ,1 jienalty for holding over umler the Statute ; Doe v. .fackaon (1779) 1 
 Doug. 17r>. 
 
 A notice in other respects sutKeient was good though it contained the follow- 
 ing " and I hereby further give you notice that shouhl you retain jxissession 
 of the premi.ses after the day before mentioned, the annual rental of the pre- 
 mises now held by you from me will be t;H)0 payable fjiuirterly in advanc3 ; 
 Ahern v Hellnmii 087!)) 4 Kx. I). 201. 
 
 Where a lease was determinable at the end of seven years by six months' 
 notice, a letter by the lessee stating " that he would not lie able to stop over 
 the first seven years of his term, unless his rent was reduced," diil not invali- 
 date the notice'. Bury v. Tlionipson (18!),')) 1 (). B. 231, (i96. 
 
 A notice to fjuit on the anniver.sary of the day "at,'' or "in," or "from," 
 or ••on and from" which the term commenced, is good. It is, luiwever, well 
 settlcil that a notice ought to expire on the last day of the current term ; 
 Sidebotham v. Holland (18!)-)) 1 (I B. 378. 
 
 A parol noti(^e to ([uil is good. Bird v. Defoiiville (1846) 2 (,'. & K. 415. 
 
 Weekly tenancies retjuire a week's notice to <iuit, ending with the week, 
 and monthly tenancies, a month's notice, ending with the month. It is sub- 
 mitted tiiat llie last day of the week or month of the tenancy is meant ; s. 18. 
 
 Month means a cahmdar month, and year, a calendar year, in construing 
 a Statute : R. S. (). c. I, s. 8 (lo), but in ccmstruing a legal document, a liuiar 
 month is meant, unliws there is something to sliow t!iat a calendar month is 
 inteniled. Nudell v. Williams (1805) lo C. R. 348; Simpson v. Margitaon 
 (1847) 11 <,». B. 23 : Hutton v. Brown (1881) 45 L. T. 343. 
 
 827 
 
828 
 
 LANDLORD AND TKNANT. 
 
 3 
 
 X 
 
 C 
 
 z 
 
 < 
 
 r 
 X 
 tr. 
 
 z 
 
 -< 
 
 Tenanoies fi-oni year to year rcfiuire iv Imlf-year'H or IHS days' notice to <|ui( 
 at the end of tlu; first or Moniti other year of tlio teniiney. (iooil v. HowellH 
 (IH3S) 4 M. & W. litS ; Doe v. Horn (18.'JS) :« M. & W. .TW. 
 
 If a eor|)oration Ih tliu landlord, tlu! notice nIiouI<I I>c directed lo the corpoi- 
 ation and not to its olficeiH. Doe v. VVoiMlnian { IH(I7) S KaHt. \i2H ; Hnrwell 
 V. Ijondon Free I'ress (,'o. (ISH.")) "27 O. R. (i ; liiit it, of neceHHity, «iil lie 
 nerved on one of itH otlicers, if seived |iciNoniillv. 
 
 Tenant to give Notice Of Writ Of Ejectment. In dower aiaiooN, the t<-nant in 
 |)OHHeH»ion wh(» is not also the tenant of tlic freehold, nnist notify hin hmdlord 
 <tn being served with a writ, inider penalty of forfeiting three years improved 
 rent of llie premises ; K. !^. O. c. 07, s. ,'{, niife p. 'i.'il. And in actions of 
 ejectment when a tenant is served lu^ likewise must inniiediately give notice 
 to his landlord, oi' forfeit the vulne of three vears improved or rack rent : 
 s. 19. 
 
 mectment where Half-Year's Rent In Arrears. 4 ( iv.o. II. c. '2S (Im]>. ) was the 
 one from whicli sections •2(t-"i.") were taken. 
 
 The sections apply where possession only is sought ; a claiiri for rent shoidd 
 not bo added ; s. -M : Dcnison v. .M:iitland"(IH!»3) 22 O. K. Itifi, ai\d where the 
 lease providi s that it is void on non-jiayment of rent, whether demanded or 
 not, tlie forfeiture is bv ngreeinent, and the section does not govern ; McDon- 
 ald v. Peck (ISolt) 17 'U. (.'. H. •-'«(). Where the lease governs the forfeiture, 
 it makes no did'erence whetlier there is a sutli<'ient distress on the |)ropertv or 
 not ; (.'ampbell v. Baxter (1 8(i4) 1.") C. P. 42. 
 
 When advantage is desired to be taken of the.se sections, it nnist l)e shew n 
 that not siillicient distress was to be found on the premises ; s. 21 ; Doe d. Cubbitt 
 V. McLeofI (IS41) R. & J. Dig, otl.S.'i ; and tlie ilistress nnist be sulHcicnt to 
 countervail all the arrcais then due, and not merely half a yeai's rent ; s. 21 ; 
 Cross V. .fordan (ISiTi) .S Kxch. 14}). A distress levied by the landloril will 
 not operate as a waivei- of his rights undei' .section 2(1 ; Tliomas v. Lulliam 
 (18!)")) 2 (^, 15. 4(t(l : unless less than half a year's rent remains <lue after i-c.il- 
 i/.ing the distress ; Cotesworth v. .Sjxikes (18(il) 1(1 C. I!. N. S. W.i. 
 
 The rights of a mortgagee of the lea.se not in possession are protected liy 
 .section 2.3, liy which he can, within six months after judgment and execution, 
 pay all rent iTi ariear and all damages and costs, and al.so |)erform the lessee's 
 covenants. 
 
 Relief will be granted tiie lessee or his assignee on his bringing tlie airears 
 of rent and taxed costs into Court ; Campbell v. Baxter (1804) 15 C. P. 42. 
 
 The Court may refuse relief after the term has expired, even though the 
 loRsee had an option to purchase during the term ; Coventry v. McLean (I803> 
 22 0. R. 1 ; (I8<)4) 21 A. R. 170. 
 
 Security ftom Tenant In Ejectment Actions. No security will be ordered 
 where a bona fide defence or dispute is set up ; Kelly v. Wolff (1887) 12 P. R. 
 2M. 
 
 It is not now necessary for the plaintilf to sign the notice re(|uiriug the 
 defendant to giv(! security ; it may be endorsed on the writ in the usual 
 manner ; Ih. 
 
 Exemptions from Distress. R. S. O. e. 77, as. 2-o provides what goods and 
 chattels are exempt from sei/.ure imder execution, and therefore not liable to 
 .seizure by distress for rent where the tenancy conunenced after Pith October, 
 1887 ; 8. 30; see ante, p. 328, 
 
 Before the revisicni of the Statutes in 1897, sub-section 2 of section .'{(( was n 
 part of section 1 of that section ; it was added by H't Vio. e. 31, s. 1. 
 
 The exemption given by s. '.iO (1) has not been lessened by s. .'{() (2). as that 
 sub-section is not ca|)able of an intelligible construction and is therefore inoper- 
 ative ; Harris v. Canada Permanent L. & S. Co. (1897) 17 C. L. T. 424, 34 ('. 
 L. J. .39 ; Shanncm v. O'Brien (1898) 34 C. L. J. 421. 
 
 An injunction may be granted restraining the sale of exemptions ; Harris v. 
 Canada Permanent (1897) 17 C. L. T. 424, .34 C. L. .T. 39. The person claim- 
 ing exemptions must select and point <mt the things he claims as exemptions ; 
 s. 30 (3) ; and he must give up po.ssession of the jiremifcs or be ready and offer 
 to do so ; s. .32, s. 1. 
 
 The exemption only applies to goods owned by the tenant himself and not 
 where merely claimed by his wife as hers ; Dutton v. Wilkinson, (Meredith, 
 C.J., unreported), Sept. '22nd, 1898. 
 
LANDLORD AND TENANT. 
 
 829 
 
 I WllH till* 
 
 Till' cxi'lnptioiiN iiiiiv lie Hci/eil lUiil miiIiI if the tfimiit I'cfiixi'H to give ii|i |iiiH' 
 M'Ksion after receiving ii riolici' froin tlic liiriiliortl to give up pomhi'mhIuii or pay 
 t lie rent ; nn. 'A anil 4. 
 
 (IcioiIh anil i:liattulH nf tliiiil pn-soiiM arc t'Xeiiipt exii'pt in tlir fnlluuiiig 
 vnvci : - 
 
 (a) WliL'ii- titli- is I'laiineil uinii'i- jin I'Xi-iMitiim against llii' tenant. 
 (I>) \N'lu'r(' titif is ili-rivi'il liy pincliasf, gift, tranNfcr ni' assignment from 
 tenant, «lie||iei- iilisulute, iir' in trust, or liy uay of innrtgage. 
 
 lu) Where llie tuiuinl lias an interest in guixlB under a eontrael of purchase 
 ui' hiring agriiiinent, his intercHt only may Ite sold; Carroll v. IJeard (189(1) 
 ■21 O. H. :141». 
 
 (d) Wlicre goods h.ive heen exriuingeil, with the olijecl of defeating the 
 ilistrcHH. 
 
 (e) Wiiere the property is elainieil liy the tenant's wife, hiislianil, daughter, 
 son, daiigliter-iniaw or sonin-law. 
 
 (f) Wiiere the property is elaiineil hy any otiiei- I'elative of tiie tenant who 
 lives on the premises a.s a niend)ei' of his family. 
 
 (g) Where the pioperty is claimed hy virtue of a jnu'chase, gift, transferor 
 n-isignment from any relative mentioned in (e) or (f), 
 
 A inoitgagee from the tenant's wife is entitled lo the exem|ition : Stott v. 
 Spain (IS'l-J) -in ('. L. ,1. 4()!l. 
 
 The following aie also exempt : Sheep. « iiere there are othei' goods sufli- 
 eient to pay the rent ; Mope v. Wiiite (ISTl ) _'•_>('. I*. ■'». 
 
 Beasts thai gain the land while theie is otln'r siitiicienl distress to he found ; 
 'A Hen. .'}, Stat. 4. 
 
 Goods entru.stud lo persons carrying on certain trades to exereiso their 
 trades upon them; Patterson v. Thompson (ISSl)4(i U. C. R. 7, !• A. H. .S2(> ; 
 Sec also Mitchell v. (.'ofree (ISHO) ."i A. H. .VJ."). 
 
 (ioods ill the custodv of the law cannot he distiiiineil : ( irant v. ( Jraiit ( IH8.'{) 
 10 I'. H. 4(1. 
 
 .\ hardwood lloiiring put dow n li\ the tenant of a roller rink which might 
 lie removed ; Howell v. Lislowcl H.' & T. ("o. (ISS7) l.'H). K. 47<i. 
 
 Trade tixlures attached to the freehold ; Davevv Levvifi ( 18.5!») IH U. C. 11. 
 •_'l : sir Kogers v. Ontario Hank (I8!lll -.'l (). H."4I(). 
 
 Timher heing used hy a tenant, who is a shi))huilder,. in repairing vessels 
 and the vessels heing repaired ; ( Jihlersleove v. Aull (18")8) Hi U. C. R. 401. 
 (ioods of an amhassador : 7 Anne c. 12, s. 3. 
 
 Who are Tenants Within s. 31 (3). Persons let into possession liy a liou.se 
 agent aiijxjiiiled hy assignees of a tenant for the sole purpose of exhiliiling the 
 premises to pros|)ective lessees, and without authority to let or grant pos.session, 
 are not tenants and are not in occupation "under" the assignees, and their 
 goods ari» not liahle to distress ; Farwell v. .Jameson (l8iMi) '2."> S. C R. .188. 
 
 Attachment of Rent. The right of distress is suspended where rent is at- 
 tached as to tile part attacheil ; Patterson v. King (1800) 27 (). R. WJ. 
 
 Set off Against Rent— 8. 33. A claim for damages for lireach of the lessor's 
 itovenants can not he .set otl'; Walton v. Henry (188!») 18 (). R. lJ-20. 
 
 The notice of set oB' may he given after the distress, hut liefoic .sale, and if 
 the deht .set-ott' exceeds the rent, the landUird should ahandon proceedings, or 
 he hecomes a trespasser ; IJrillinger v. .-Vmhlei' (18!)7) '28 0. R. ;j(i8. The notice 
 docs not make the distress illegal uh initio, and, if the sale proceeds, 
 " diiuhle value'" under '2 W. & M. sess. I, c. .5, s. ."i, cannot he recovered as that 
 Statute rciiuires lioth seizure and sale to he unlawful ; Hi. If an hotel owner 
 does not provide tire escapes the tenant may do so, and have a right of set-ofV 
 for all actual necessary and rcasonahle dishursenients ; R. S. O. c •2(i4 s. "2 (2). 
 
 Tlie right to set-otl' under this section only applies where the tenancy was 
 created after 1st Octolier, I8H7 ; s. .18. 
 
 Rent Under Assignment for Benefit of Creditors. See ante p. 470. 
 
 Growing Crops. Hy 2 Wm. & M. Sess. 1, c. 5, s. 3, "Any person having 
 rent in arrear and due upon any demise, lease or contract, may seize anil 
 secure any sheaves oi' cocks of corn, or corn Imwe or in the straw, or hay lying 
 or lieiiig in any barn or gianary or upon any hovel, stack or rick or otherwise, 
 
830 
 
 LANDLORD AND TENANT. 
 
 3' 
 
 9' 
 
 9!; 
 
 c 
 z 
 
 r 
 
 > 
 
 upon any part of the land or ground charged with such rent, and hxk up or 
 detain tlie Hanio in the place wliere the same sliall he found for or in the nature 
 of a distress until tiie same shall he ie])levied or sold, hut the same nnist not 
 l)e removed from any sueli plaee to the damage of the owner." 
 
 .\nd under 11 (ieo. 2, e. 1!), ss. .S and !(. The landlord may take and seize 
 as a distress for arrears of rent, all sorts of corn and grass, hops, roots, fniits, 
 pulse or other product wliatsoever growing upon any part of the estate <le- 
 mi.sed, as a distress for ari'ears of rent and the same may cut, gatiier, make, 
 cure, carry and lay up when lipe in tlie harns or other proper place in the 
 premises ; and if there sliould he no l)arn or other ))roper place on tiie pre- 
 mises, then in any othei' harn or pi'oper ])lace which he shall hire or other 
 wise procure for that purj)ose, and as neai' as may he to the premises, and in 
 convenient time appraise, sell or otherwise .dispose of tiie same towartls 
 satisfaction of the rent, and of tlu' eliarges of such distress, appraisement and 
 sale; the appiaisemeut thereof to i)e taken wlien cut, gathered, cured and 
 made and not liefore, provided tliat the notice of the place wiicre such di.strcss 
 shall l)e lodged shall within the s])ace of one week after the lodging or deposit- 
 ing lereof in suc^li place l)e given to the tenant oi- left at his last i)lacc of 
 abode, and if tlie tenant siiall pay or tender tiie arrears of rent and costs of 
 the distress before the corn lie cut, the distress shall cease and the corn bo 
 delivered up. 
 
 Hop poles in the ground aftci- the hops are gathered aie not distrainalile ; 
 Alway V. Anderson (1848) T) U. C. R. .34. 
 
 HS. 3fi and .'JT are taken from Imp. Act. 14 & lo Vict. c. '25 and alter the law 
 laid down in Wright v. Uewes (1884) 1 A. & E. 641, 40 R. R. 384 and Wharton 
 V. Naylor (1848) 12 Q. B. 073. 
 
 Boarders and Lodgers. The goods of hoarders and lodgers seized for rent of 
 the premises must he freed from distress if the steps prescribed bj' s. 3H are 
 taken. A lodger is a tenant with the right of exclusive possession of a jiart of 
 a house, the landlord, by himself or an agent, retaining general dominion over 
 the house itself ; Wharton 8tli Ed. 439 ; Stroud 443. A man will hi; a lodger 
 within 8. 38 although he may have substantiallj' the whole house, his immedi- 
 ate landlord onlj- retaining possession of a housekeeper's room in the basement 
 and of two or three empty attics, and a stable, an<l although he may in law be 
 an under tenant; Phillips v. Henson (1877) 3C. P. D. 2(t ; and although he 
 has the right of exclusively occupying 'ihe greater part of the premi.ses and has 
 separate and uncontrolled power of ingress and egress, and neither his landlord 
 nor his agent sleeps or resides in the house and the lodger acts as caretaker of 
 the part reserved ; Ne.ss v. Stephenson (18rt2) 9 Q. B. 1). 245 ; but the per.son 
 under whom he holds must retain some control and dominion over the house ; 
 Morton v. Palmer (1882) 51 L. J. Q. IJ. 7. Pei'sons who occupy rooms for 
 business purposes in the day time are not hidgers ; Heawood v. Bone (1884) 13 
 Q. B. I). 179. 
 
 The question whether the claimant is a lodger should not be le^t to the jury 
 as that is in effect asking them to construe the section ; Morton v. J'almer 
 
 (1882) r.l L. J. Q. B. 7. 
 
 Persons living at an hotel at an agreed sum per month are hoarders and not 
 guests ; Newconihe v. Anderson (I88()) 11 O. R. 6()5. 
 
 Declaration of Lodger. The declaration under the Statute must be made, 
 after each di.stress against which protection is sought ; Thwaites v. Wilding 
 
 (1883) 12 Q. B. 1). 4, 15 L. J. Q. B. I ; it need not neccssnrilv slate that no 
 rent is due ; Ex parte Harris (1885) 1(5 (). B. 1). 4. 
 
 A declaration made on the fifth day after distress levied is good as under 2 
 W. & M. Sess. 1, c. 5, s. 2 a sale caniiot be held till after that day ; Sharp v. 
 Fowls (1884) 12 Q. B. 1). 385. 
 
)(k up Ol- 
 io nature 
 must not 
 
 iind seize 
 ts, fruitH, 
 jstate (le- 
 niiike, 
 ice in tlie 
 
 the pre- 
 or othei' 
 <, and in 
 
 towards 
 ;ment and 
 nned and 
 li distress 
 
 deposit - 
 
 ])laee of 
 
 (1 costs of 
 
 corn 1)0 
 
 CHAPTER 171 
 
 An Act respecting Overholding Tenants. 
 
 Short Titlk, s. 1. | Removal to High Court, s. 6. 
 
 Interpretation, s. 2. Costs, s. 7. 
 
 Application against overholdino Witnesses, a. 8. 
 
 TENANT, s. ;J. Other remedies saved, s. 9. 
 
 Proceedings before County Judge, | Entitling and service ok papers^ 
 
 88. 4, 5. I 88. 10, 11. 
 
 HEU MAJESTY, by and with the advice and consent ot the 
 Legislative Assembly of the of the Province of Ontario, 
 enacts as follows : — 
 
 I. This Act maybe cited as "The Overholding Tenart^s Short title. 
 Act" 
 
 /J. In the construction of this Act- 
 
 Interpertacion 
 
 1 " Tenant" shall mean and include an oi.cupant, a sub- "Tenant." 
 tenant, under-tenant, and his and their assigns and legal repre- 
 sentatives ; 
 
 2 " Landlord " shall mean and incluc the lessor, owner, " Landlord." 
 the person giving or permitting the occupation of the premises 
 
 in question and the person entitled to the possession thereof, 
 and his and their heirs and assigns and legal representatives. 
 R. S. O. 1887, c. 144, s. 1. 
 
 li. — (1) In case a tenant, after his lease or right of occupation Application to 
 whether created by writing or by verbal agreement, has expired, ^ made to the 
 or been determined, either b^ the landlord or V)y the tenant, judge^gain»k 
 by a notice to quit or notice pursuant to a proviso in any lease overholding 
 or agreement in that behalf, or has been determined by any *"*" ' 
 other act whereby a tenancy or right of occupancy may be 
 determined or put an end to, wrongfully refuses, upon demand 
 made in writing, to go out of possession of the land demised 
 to him, or which lie has been permitted to occujiy, his landlord, 
 or the agent of his landlord, may apply upon affidavit to the 
 Judge of the County Court of the county, or union of counties, 
 in which the land lies, and wherever such Judge then is, to 
 make an inquiry as is hereinafter provided for. 
 
 [8.311 
 
832 
 
 Chap. 171. 
 
 OVERHOLDING TENANTS. 
 
 Sec. 3 (2V 
 
 o 
 
 J 
 
 c 
 
 ■■■»»• 
 
 < 
 
 s 
 
 CD 
 
 Judge (2) Such judge shall in writing appoint a time and place at 
 
 tiineanlf place which he will inquire and determine whether the person com- 
 
 for determin- plained of was tenant to the complainant for a term or period 
 
 inff ma er. ^yhig]j ji^g expired or has been determined by a notice to quit or 
 
 for default in payment of rent or otherwise, and whether the 
 
 tenant holds the possession against the right of the landlord, 
 
 and whether the tenant does wrongfully refuse to go out of 
 
 possession, having no right to continue in possession, or how 
 
 otherwise. R. S. 0. 1887, c. 144, s. 2 ; 59 V. c. 42, s. 4 (1). 
 
 60 V. c. 14. s. 28 (2). 
 
 Notice thereof 4. Notice in writing of the time and place so appointed 
 on the^e'nant. ^'^^ holding such inquiry, and stating briefly the principal facts 
 alleged by the landlord to entitle him to possession, shall 1)e 
 served by the landlord, upon the tenant or left at his place of 
 abode, at least three days before the day so appointed, if the 
 place so appointed is not more than twenty miles from the 
 tenant's place of abode, and one day in addition for evoiy 
 twenty miles above the first twenty, reckoning any broken 
 number above the first twenty as twenty miles, to which 
 notice shall be annexed a copy of the Judge's appointment 
 and of the affidavit on which the appointment was obtained, 
 and of the papers attached thereto. R. S. 0. 1887, c 144, s. 4 : 
 59 V. c. 42, s. 4 (.3) ; 00 V. c. 14, s. 28 (3). 
 
 Proceedings 
 in default of 
 ai)pearance. 
 
 In case of 
 appearanue. 
 
 Proceedings 
 to form part 
 of the records 
 of the Court. 
 
 5. If at the time and place appointed, as afoi'esaid, the 
 tenant, having been duly notified, as above provided, fails to 
 rppear, the Judge, if it appears to him that the tenant 
 wrongfully holds, may order a writ to i.-^sue to the sheriff, 
 in the Queen's name, commanding him forthwith to place 
 the landlord in possession of the premises in question ; but 
 if the tenant appears at such time and place, the Judge 
 shall, in a summary manner, hear the parties, and examine 
 into the matter, and shall administer an oath or affirma- 
 tion to the witnesses called by eithei- party, and shall ex- 
 amine them ; and if after snch hearing and examination it 
 appears to the Judge that the ch^<i is clearly one coming 
 under the true intent and meaning of section 3 of this 
 Act, and that the tenant wrongfully holds against the right 
 of the landlord, then he shall order the issue of such writ, 
 as aforesaid, otherwise he shall dismiss the case ; and the 
 proceedings in any such ease, shall form part of the records 
 of the County Court ; and the said writ may be in the words 
 or to the effect of Form 1 or Form 2, in the Schedule to this 
 Act, according as the tenant is ordered to pay costs or other- 
 wise. R. S. O. 1887, c. 144. s. 5 ; 58 V. c. 13, s. 23 (3) ; 59 V. 
 c. 18, Sched. 47. 
 
 KeiiiDval in 
 fcrlKirari. 
 
 0. Where such writ has been issued, the High Court or a 
 Judge thereof may on motion, within thi'ee months after the 
 issue of the writ, command the Judge to send up the proceed- 
 ings and evidence in the case to the Court, certified under his 
 
3 (2V 
 
 lace !it 
 n coni- 
 period 
 quit or 
 ler the 
 iidlord, 
 out of 
 )r how 
 
 4 (1). 
 
 Sec. 11. 
 
 OVERHOLDING TENANTS. 
 
 Chap. 171. 
 
 8sa 
 
 liand, and the Court may examine into the proceedings, and, if 
 the Court finds cause, may set aside the same, and may if neces- 
 sary, order a writ to issue to the sheriff', commanding him to Writ of resti. 
 restore the tenant to his possession, in order that the question t«t>o«>' 
 of right, if any appears, may be tried, as in ordinary actions 
 for the recovery of land. R. S. O. 1887, c. 144, s. 6. 
 
 1. The Judges of the High Court may from time to time. Judges of 
 make such Rules respecting costs, in cases under this Act, ^'*f^ ^V^^ 
 as to them seem proper ; and the County Court Judge before rules as to 
 whom any such case is brought may, in his discretion, award *"'*'^- 
 costs herein, according to any such Rule then in force, and if 
 no such Rule is in force, reasonable costs, in his discretion, 
 to the party entitled thereto ; and in case the party com- Execution, 
 plaining is ordered to pay costs, execution may issue therefor, 
 out of the County Court as in other oases in the County 
 Court, where an order is made for the payment of costs. 
 R. S. O. 1887, c. 144, s. 7. 
 
 to be summoned Summoning 
 
 such case, in like 
 
 8. The Judge may cause any person 
 as a witness to attend before him in any 
 manner as witnesses are summoned in other cases in the County 
 Court, and under like penalties for non-attendance, or refusing 
 to answer in such case. R. S. O. 1887, c. 144, s. 8. 
 
 9. Nothing herein contained shall in any way affect the other reme- 
 powers of any Judge or Judges of the High Court under Jordg" 
 sections 26, 27 and 28, of The Act respecting the Law of 
 Landlord and Tenant, or shall prejudice or affect any other Rev. Stat, 
 light or right of action or remedy which landlords may °' ' 
 possess in any of the cases herein provided for. R. S. 0. 
 
 c. 144. s. 9. 
 
 10. The proceedings under this Act shall be entitled in the h'""*'***J-ti|j 
 County Court of the county or union of counties in which 
 
 the premises in question are situate, and shall be styled : 
 
 " In the matter of {giving the iiame of the party complaining), Landlord, 
 against (giving the name of the party complained against) Tenant." 
 
 R. S. 0. 1887, c. 144, s. 10. 
 
 1 1 . Service of all papers and proceedings under this Act Service 
 shall be deemed to have been properly effected if made as p*P'"" 
 required by law, in respect of writs and other proceedings in 
 actions for the recovery of land. R. S. 0. 1887, c 144, s. 11. 
 
 SCHEDULE 
 
 c2 
 
 
833 
 
 Chap. 171. 
 
 OVERHOLDINQ TENANTS. 
 
 Form 1. 
 
 I 
 
 s 
 
 SCHEDULE. 
 
 FORM 1. 
 
 Ontario, 
 
 To Wit : 
 
 (Section 5.) 
 
 WRIT or POSSESSION (WITH COSTs). 
 
 } 
 
 Victoria, by tlie Grace of God, of tlie United Kingdom of Great Britain 
 and Ireland, Queen, Defender of the Faith. 
 
 L S.] 
 [ 
 
 To the Sheriflf of the 
 Whereas 
 
 Greeting : 
 
 Judge of the County Court 
 of , by liis order dated the 
 
 day of A. D. 18 , made in pursuance of The 
 
 Act respecting Overholding Tenants, on the complaint of 
 
 r gainst , adjudged 
 
 that was entitled to the possession 
 
 of 
 
 with the appurtenances in your Bailiwick, and that a Writ should 
 issue out of Our said Court accordingly, and also ordered and directed that 
 the said 
 
 should pay the costs of the proceedings had under the said Act, which by 
 •Our said Court have been taxed at the sum of : 
 
 Therefore, We command you that without delay you cause the said 
 
 to have posR-jssion of the said land 
 and premises, with the appurtenances : And We also command you that of 
 the goods and chattels and lands and tenements of the said 
 in your Bailiwick, you cause to be made 
 
 being the said costs so taxed by Our said Court as aforesaid, and have that 
 money in Our said Court immediately after the execution hereof, to be 
 rendered to the said 
 
 And in what manner you shall have 
 executed this Writ make appear to Our said Court, immediately after the 
 execution hereof, and hav3 there then this Writ. 
 
 Witness, 
 Court at 
 of 
 
 , A.D. 18 
 
 , this 
 
 Judge of our said 
 day 
 
 Clerk. 
 
 R. S. O. 1887, c. 144, Form 1 ; 57 V. c. 26, s. 1. 
 
 FORM 2. 
 
I'onn 1. 
 
 Form 2. 
 
 OVERhoLDlNO TENANTS. 
 
 Chap. 171. 
 
 «35 
 
 FORM 2. 
 
 {Section 5.) 
 
 WRIT OK POSSESSION (WITHOUT COSTS.) 
 
 Ontakio, 
 
 To Wit , 
 
 Victoria, by the Grace of God, of the United Kingdom of Great Britain 
 and Ireland, Queen, Defender of the Faith. 
 
 [L. S.] 
 
 To the Sheriff of the 
 Whereas , 
 Court of the 
 
 Greeting. 
 Judge of the County 
 
 by his order dated tlie 
 day of A. D. 18 , made in pursuance of The Ad i 
 
 respectiuij Overholdiiig Teuanfn, on the complaint of 
 
 against adjudged that 
 
 was entitled to the possession of 
 
 And ordered that writ should issue out of Our said Court accordingly 
 Therefore, We command you that without delay you cause the said 
 
 to have possession of the said land and 
 premises with the appurtenances, and in what manner you shall have ex- 
 ecuted this Writ make appear to Our said Court, immediately after the 
 execution hereof, and have there then this Writ. 
 
 Witness 
 Court a 
 of 
 
 , this 
 A. D. 18 
 
 Judge of our said 
 day 
 
 Okrk. 
 
 R. S. 0. 1887, c. 144, Form 2. 
 
836 
 
 OVERHOLDING TENANTS. 
 
 NOTES. 
 
 I 
 
 Scope of tbe Act. This Act was iiitiMidod as a clu-a]) and speud^- method of 
 ejecting tenants from premises wrongfully occupied by them, as often in 
 ejectment actions defendants set up sucli defences as necessitate the parties 
 going to a trial and iiohl possession without right until the time of a sittings 
 of the court arrives. The Act until \SU'> (58 Vic. e. lo s. iJ3) coTitained the 
 words " without color of rigiit "' and had a very limited ajjplication ; Price v. 
 <iuinane (1888) Hi O. H. 'ifH. The Act had its origin in 4 Wni. IV. c. 1. ss. 
 .53-r.8. 
 
 Who are Tenants. .A tenant is a person who holds of anothei-, lie does not 
 necessarily occupy. In order to occupy a jier.son must be j)ersonal!y resident 
 by himsorf or his family ; R. v. Ditcheat (1827) !1 15. & (,'. 183, per Littledalo J. 
 
 An occupant, sub-tenant or under-tenant is included in the moaning of the 
 word " tenant " as also tlie assigns and legal representatiyes of them ; s. 2(1). 
 
 The tenant, tliough al)sent, is, speaking generally, the " occupier of prem- 
 ises ; R. V. Poyndei' (1822) 1 B. & C. 178. A servant or other person wlio 
 may be there rir/iilr ojlirii is not a tenant but has merely the u.se, not the occu- 
 pation of the premises ; White v. Bayley (18fil) 10 C. B. N. S. 227 ; Mayhew 
 v. Suttle (185"i) 4 K. & B. 346 ; Clark y. St. Marys Buiv St. Rdnionds (1856) 
 1 C. B. N. S. 23 : Bent v. Roberts (1877) 3 Ex. J). 66:" R. v. Spurrell (1865) 
 L. R. 1 Q. B. 72 ; but such a person may be ejected under the Act : Fowke v. 
 Turner (1876) 12 C. L. J. 140. 
 
 Jurisdiction. To give the Comity (Jourt Judge jurisdiction under the Act, 
 the following requisites must appear upon affidavit : — 
 
 1. That there was a lease or right of occupation created by wiiting or by 
 verbal agreement. 
 
 2. That the term or right of occupation has expired or been determined. 
 The determination may be (a) liy notice to quit, (b) notice pursuant to a pro- 
 viso in the lease or agreement, (c) by any other act whereby a tenancy or right 
 of occupancy may be determined or put an end to, such as cessation of employ- 
 ment ; White v.'Baylev (1861) 10 C. B. N. S. 227 ; forfeiture ; R. S. O. c. 170, 
 s. 13 ; Loiighi v. Sanson (1881) 46 U. C. R. 446 ; Dobson v. Sootheran (1888) 
 15 O. R. 15 ; forteiture for breach of contract : Nash v. Sharp ( 1869) 5 C. L. J. 
 73 ; or for non-payment of rent ; R. S. (). c. 170, s. 1 1. 
 
 3. That demand has been made in writing on the tenant or occupant to go 
 out of possession of the land demised or occupied. 
 
 4. That the tenant or occupant trroi'iifiil/i/ >'<'Jii^6>i to go out of possession. 
 
 It would seem that a trespasser or squatter does not come within the Act as 
 he does not hold under a lease, and his right of occupation is not created by 
 writing or verbal agreement. 
 
 Kotice to quit. In weekly tenancies and monthly tenancies, a week's notice 
 to quit and a month's notice to quit respectively, ending with the week or the 
 month is required ; R. S. O. c. 170, s. 18 ; see Jones v. Mills (1861) 10 C. B. 
 N. S. 788; Bowen V. Anderson (1804) I Q. H. 164. In construing the Stat- 
 utes, month means calendar month, and year calendar year ; R. S. O. c. 1, .s. 8 
 (16) and in construing leases and other documents niontli means (unless some- 
 thing to show a calendar minth is intended) a lunar month; Nudel v. Wil- 
 liams (1865) 15 C. P. 348 ; Rogers v. Hull Docks Co. (1865) 34 L. J. Ch. 165 ; 
 Hutton V. Brown (1881) 45 L. T. 343 ; Simpson v. Margitson (1848) 11 Q. B. 
 23 ; Barlow v. Teal (1885) 15 Q. B. I). 501. 
 
 In the ease of a yearly tenancy, the notice to quit required is a half-yearly 
 one, or 183 days, to (juit at the end of tiie first or some otiier year of the 
 tenancy; six lunar months is insufficient ; Clayton v. Blakey (1798) 2 Sni. L. C. 
 (9 Ed.) 122, 8 T. R. 3 ; Duppa v. Mayo 1 Wm. Saund (1871 Ed.) 385-6. 
 
 Where there is a verbal lease for more than three years to continue and 
 expire on a day certain, and the tenant takes possession, he, as well as his sub- 
 tenant for an indefinite period, is bound to quit possession without notice, and 
 if either remain in possession after the expiration of the lease he is an over- 
 holding tenant ; Magee v. Gilmour (1889) 17 O. R. 620. 
 
pit'tlioil l>f 
 if ten in 
 lie parties 
 1 a sittings 
 
 tainefl the 
 
 P 
 
 net; V. 
 I. ss. 
 
 Ml). 
 
 of piem- 
 erson who 
 
 tlu' occii- 
 
 Mayiiew 
 nds {18,>6) 
 nell (186r>) 
 
 Fowko V. 
 
 jek's notice 
 tveek or the 
 I) 10 C. B. 
 g the Stat- 
 O. c. 1, s. S 
 iileas Honu'- 
 idel V. Wil- 
 J. Ch. 16,-) : 
 8) 11 Q. B. 
 
 OVERHOLDING TENANTS. 
 
 Where tlie tenant iiolds over after tlie expiration of liis tenancy, tiie 
 terms on whi('li lie continues to liold are matters of evidence rather thaii law, 
 and where th(,' overiioldiiig tenant's term was one for eleven months, he was 
 onlv entitled to a niontlrs notice to i[uit after his lease expired ; Enstrran v. 
 Richard (189«) 17 C. L. T. ;il,j, (1899) 29 S. C. R. 438. 
 
 No particular contract is to be inferred from the mere fact of a holding over 
 after the expiration of tlie term : Lindsay v. Robertson (1899) 30 O. R, -J-Jtt. 
 
 Defence of Tenant. The words •• without color of riglit" wiiich were in the 
 Act prior to 08 Vic. were decided to mean " liaving no right or wrongfully 
 holding '■ ; (iilbert v. Doyle (1S74) 24 (,'. P. 60, but this case was not followed iii 
 Price V. Ouinane (1888) 16 0. H. 624, where "cojoi- of right" was interpreted 
 as meaning such semblance or appeaiaiKc of right as shews tlie right is really 
 ill dispute. The Act. before its amendment by striking out "color of right," 
 coiit'erred no authority upon tlie County ,Judge to try the (|uestioii cif the ten- 
 ant's riglit or title, and as .soon as the question that the tenant's right was 
 niiule to appear as being really in cli.spute, then there was that color of right 
 that the Act contemplated and the juflge was bound to dismis.-; the case ; 
 Price v, Ouinane (1888) 16 0. H. 264 i Pearson v. (Jlazebrook (1S7I) L. R. 6 
 Kx. 27. 
 
 Where there was a dispute as to the date when the tenancy commenced 
 anil an applicaaion was made at a time when, according to the tenant's con- 
 tention, his lease had not expired, " color of right " was decided to have been 
 shewn ; Bartlett v. Thompson (ISHS) 16 O. R. 716. 
 
 Where the dispute was whether "months" meant lunar or calendar months, 
 and whether a notice given after conveyance of the reversion was sutticient, 
 the Act even after the amendments of ."iS Vic. c. 13, s. 23 (6) and 59 Vic. c. 42, 
 s. 4 (6) was held not to apply, as it was not a ease clearly coming under the 
 true intent and meaning of the present section 3 ; Magann v. Bonner (1896) 28 
 O. R. 37. 
 
 But the Queen's Bench l)i visional Court on the other hand decided that 
 where the dispute was in reference to the tenancy, the landlord claiming it to 
 be a monthly holding ami the tenant a yearly tenancy, that the Act applied, 
 as the judge tries the right and finds whether the tenant wrongfiillv holds ; 
 Moore V. (iillies (1897) 28 O. R. .358. 
 
 The quMtioii ofriijht seems still to be important, as will be noticed by sec- 
 tion 6 of the Act, where the High Court is given power to examine into the 
 proceedings in order that the question of right, if any appears, may be tried 
 as in ordinary ejectmcMit actions. 
 
 Affidavit not Evidence. The affidavit tiled by the landlord on the applica- 
 tion is inceptive onlv and intended to show some grounds for proceeding ; Re 
 O'Connell (1865) 1 C. L. .1. 163. 
 
 Service of Demand. The demand of pos.session must be personally served 
 and the notice of the time and place appointed must be personally' served or 
 left at the tenant's place of abode ; s. 4 ; Nash v. Sharp (1870) 5 C. L, J. 73. 
 
 "At least three days'" means " clear days," i. e. excluding the first as well as 
 the last day ; Young v. O'Rielly (1864) 24 U. C. R. 172. 
 
 Certiorari. An application under s. 6 may properly be made to the Div- 
 isional Court and it is the only Court in whicli the motion can be made ; Re 
 Scottish Ontario and Manitoba Land Company (1892) 21 O. R. 676. 
 
 There is no appeal or right to a certiorari where the application is dismissed 
 and onlv when a writ of possession issues ('an an order of certiorari be 
 obtained, and then only when it is applied for within three months after the 
 issue of a writ of possession ; s. 6 ; and where an appeal was made to the 
 Divisional Court, costs as of a contested motion for a certiorari were allowed; 
 Magann v. Bonner (1896) 28 O. R. 37. 
 
 Action against Landlord. A landlord is not liable in trespass for ejecting a 
 tenant whei'e the tenancy has expired, although he may have taken proceed- 
 ings under the Act ; Rees v. Davis (1858) 4 C. B. N. 8. 56 ; Jones v. Foley 
 (1891) I Q. B. 7.S0. 
 
 837 
 
 .7 I 
 
h'fv 
 
 62 VICTORIA, CHAPTER 18. 
 
 
 hf i 
 
 m 
 
 An Act to amend the Law with respect to Compensa- 
 tion of Workmen. 
 
 Assented to Isi April, 1899. 
 
 I 
 
 Short title. 
 
 Interpreta- 
 tion. 
 
 Burden of 
 proof. 
 
 Rev. Stat. 
 c. 256. 
 
 HER MAJESTY by and with the advice and consent of 
 the Legislative Assembly of the Province of Ontario en- 
 acts as follows : — 
 
 1. This Act may be cited as The Workmen's Compensation 
 for Injuries Act, 1899. 
 
 2. In this Act the word " claimant " shall include the word 
 " plaintiff," and the word " respondent " shall include the word 
 " defendant," and in The Workmen's Compensation for 
 Injuries Act the word •' plaintiff" shall include the word 
 " claimant," and the word " defendant " shall include the word 
 " respondent," and the words " suit,'' " action " or " proceeding " 
 where mentioned in The Workmen's Compensation for Injuries 
 Act shall include the word " arbitration," and the word 
 " court" or "judge " shall include the word "arbitrator." 
 
 3. Where the machinery or other plant or works of or in 
 a factory, or any nart of such machinery, plant or works 
 through or by rer n of which the injury complained of was 
 inflicted or occasioned or alleged to have been inflicted or 
 occasioned, is or are, by The Ontario Factories Act or any 
 other Act of the Provincial Legislature, or of the Parliament 
 of Canada, required to be covered, guarded, protected or 
 suitably enclosed in whole or in part ; 
 
 1838] 
 
Chap. 18. 
 
 COMPENSATION OF WORKMEN, 1899. 
 
 839 
 
 or 
 
 \le\. Stat. c. 
 
 (tt) Or is required by any of the Acts aforesaid to be of 
 a special or particular kind or quality or to be kept 
 in a particular or specified state or condition. 
 
 (6) Or when dangerous structures or places or openings 
 in or in connection with a factory are recjuired by 
 law to be kept securely guarded or protected or 
 suitably enclosed as far as practicable, or to be 
 kept in some particular state or condition, or that 
 facilities for so keeping them or any of them shall 
 be provided ; 
 
 (c) Or where any part of a railway or railway track or 
 railway bridge or other structure is required to be 
 of a certain kind or character or to be constructed 
 or kept by the company in any particular or speci- 
 fied way or manner as provided or contemplated 
 by The Railway Accidents Act or by The Work- 
 men's Compensation for Injuries Act or by any 266V 
 other Act of the Provincial Legislature, or of the ||.®^- ^**^- *'• 
 Parliament of Canada ; 
 
 then upon any trial or arbitration under The Workmen's Com- 
 pensation for Injuries Act or this Act for the recovery of 
 damages for injury to a workman arising out of the neglect or 
 alleged neglect on the part of the person or company required 
 to keep the said machinery, buildings, structures, dangerous 
 places, and railway track or structures in such a state, condi- 
 tion or manner or of the kind, character or quality as afore - 
 Sfiid and as is provided or contemplated by the said acts respect- 
 ively, and it is or becomes material to the issue on the trial or 
 arbitration, the onus of proving that the same were so kept or 
 in such condition or that facilities were provided for so keeping 
 the same as the case may be or as the Act or Acts require, 
 shall be upon the party to the action whose duty it was under 
 any of the said Acts to so keep the said machinery, works, 
 plant, dangerous places or any part thereof, or railway tracks 
 or works and structures or any part thereof as by the said 
 Acts or any of them is required or provided. 
 
 4. Notwithstanding anything in The Workmen's Com]jen- Settlement of 
 sation for Injuries Act, chapter 160 of the Revised Statutes, R^v^sut. o' 
 1897, contained, except where the claim is in respect of an in- leoby arbi- 
 jury resulting in death, all claims for damages under the .said *'^»*'°'»- 
 Act may be disposed of by arbitration as herein provided. 
 
 5. Proceedings under this Act by way of arbitration shall Venue for^ 
 be begun and carried on in the county where the accident under Act*!^ 
 happened or the injury was occasioned. 
 
 6. If the suit or action is begun in the County Court, all Applications 
 applications may be made to the Judge of the County Court *» 3"{'ee "f 
 instead of a Judge of the High Court in Chambers, and the fnstet^ of"' 
 Judge of the County Court shall have the same power and J"dge of high 
 
 * "^ ^ court in 
 
 chambers. 
 
 I 
 
840 
 
 COMPENSATION OF WORKMEN, 1899. Chap. 18. 
 
 i 
 
 < 
 
 X 
 
 03 
 
 Notice of ar- 
 bitrhtinn. 
 
 Notice of 
 objection. 
 
 authority a.s a Judjje of the High Court in Chambers in respect 
 of such applications, but the respondent shall not be entitled, 
 where notice of arbitration is given and the amount claimed is 
 within the jurisdiction of the County Court, to apply for an 
 order directing that the proceedings .shall be by suit or action. 
 
 7. — (1) In case a workman claiming compensation for in- 
 juries inider The Workmen's Compensation for Injuries Ad, 
 and this Act desires to proceed by arbitration under this Act, 
 .he shall within four months from the date upon which such 
 injuries were sustained serve a notice (Form 1) upon the 
 person or persons whom he claims to be liable, stating that his 
 claim will be submitted to arbitration unless notice of objection 
 is given as hereinafter provided. 
 
 s to an arbitration he shall within 
 upon him of such notice serve 
 
 (2) If an employer object 
 ten days after the service 
 
 notice (Form 2) that at a time therein named, which .shall not 
 be more than eight days from the date thereof, he will apply to 
 a judge of the High Court in Chambers for an order that any 
 proceedings in respect of the said injuries shall be by action 
 as heretofore and not by arbitration. The judge on hearing 
 such application may in his discretion direct that proceedings 
 are to be carried on by action on any of the following grounds: — 
 
 (a) If he finds that difficult ([uestions of law not already 
 judicially determined are likely to arise during the 
 proceedings, or 
 
 (h) If it is made to appear that complicated cjuestions of 
 fact, difficult of determination, are likely to arise on 
 the arbitration, and which should in his opinion be 
 determined in an action and not by arbitration, or 
 
 (c) If the county judge is for any reason or cause disquali- 
 fied, and there is no junior judge. 
 
 (3) The judge may by such order extend the time for com- 
 mencing an action as he may deem proper. Unless notice of 
 objection as aforesaid is given, within ten days after the ser- 
 vice on him of a notice of arbitration under sub-section 1, the 
 employer shall be deemed to consent to an arbitration, pro- 
 vided that where it is shown to the satisfaction of the judge 
 that the failure to give notice of objection is due to mistake, 
 inadvertence, or oversight, or that there aie other sufficient 
 grounds, he may upon such terms as may seem just, enlarge the 
 time for giving such notice and such enlargement may be ordereci 
 although the application for the same is not made until after 
 the expiration of the time appointed as aforesaid. (See Con. 
 Rule 323.) 
 
 Application 8, Where proceedings are begun by action instead of by 
 by defendant notice of arbitration, the defendant may apply to a Judge in 
 have matter Chambers for an order directing that the proceedings shall be 
 injosed of by taken and carried on by arbitration and not by suit or action. 
 Ihe Judge to whom application is made, if he is of opinion that 
 
 Extension of 
 time. 
 
 arbitration. 
 
!hap. 18. 
 
 €hap. 18 COMPENSATION OF WOKKMKN, 1899. 
 
 841 
 
 respect 
 ntitled, 
 aimed is 
 Y for an 
 action. 
 
 for in- 
 nes Act, 
 ;his Act, 
 ich such 
 ipon the 
 that his 
 )bjection 
 
 within 
 
 ico Hcrve 
 
 shall not 
 
 apply to 
 
 that any 
 
 )y action 
 
 1 heoring 
 
 ocetJings 
 
 rounds: — 
 
 »t alread}- 
 luring the 
 
 estions of 
 .o arise on 
 •pinion be 
 ;ration, or 
 jdisquali- 
 
 for coni- 
 notice of 
 the ser- 
 ion 1, the 
 tion, pro- 
 he judge 
 > mistake, 
 sufficient 
 ilarge the 
 le ordereti 
 ntil after 
 (See Con. 
 
 !ad of by 
 Judge in 
 3 shall be 
 or action, 
 inion that 
 
 the cause or causes of action can be more conveniently dis- 
 disposed of by arbitration than by suit or action, and that the 
 same should be di.sposed of by arbitration rather than by suit 
 or action, shall .so order, in which case no further proceedings 
 shall be had in the suit or action, but proceedings may be 
 initiated and carried on by way of arbitration. The Judge 
 may dispose of the costs of the suit or action up to the date of 
 the order, or he may direct that such costs shall be in the dis- 
 cretion of the arbitrator. 
 
 9. Either the issue of a writ or notice of arbitration under Commence- 
 this Act shall be a sufficient commencement of the action and "*?* "^ 
 
 a sufficient compliance with section 9 of The Workmen's Gom- 
 pensation for Injuries Act whether the proceedings are after- ^v. Stat. 
 wards carried by arbitration or by suit or action. "' 
 
 10. Nothing in this Act contained shall dispense with the Notice of 
 notice of injury required to be given under sections 9, 13 and ^jvej^ under 
 14 ot The Worlnnens Compensation for Injitries Act. Rev. stat. 
 
 1 1. — ( 1 ) Tn case the proceedings are to be by way of arbitra- Arbitration 
 tion the claimant shall obtain an appointment from the judge prooe«l'ng8. 
 of the county court of the county in which the injury was 
 received, and shall serve a copy of such appointment upon the 
 respondent, together with a notice (Form 3) of the time so ap- 
 
 Eointed. The judge by the said appointment shall name a day, 
 our and place, for proceeding with the hearing and such day 
 shall be fixed with a \iew to as early a dispo,sal of the ca.se as 
 appears practicable. 
 
 (2) In case the claimant does not proceed with the arbitra- Right of 
 tion with reasonable speed the respondent may obtain an g^i^dite"* *** 
 appointment from the county judge to have the case heard and prooeedingi. 
 disposed of at a time to be named in .such appointment. The 
 respondent .shall serve a copy of the appointment on the 
 claimant and on proof of such service the judge may at the 
 time so appointed proceed with the hearing or make such dis- 
 posal of the matter as may appear just. 
 
 13. When an order is made directing that the liability of the ^'°f ®'^|?'^*'" 
 respondent to pay compensation to the claimant shall be de- * "^^ 
 termined by action as heretofore, all proceedings upon 
 the arbitration shall be stayed upon the tiling of the order 
 with the clerk of the county court and service thereof upon 
 the claimant. The claimant if he desires in such case to pro- 
 ceed shall do so by action in the usual way. 
 
 13. Within eijiht days after the notice to the respondent of statement of 
 the day upon which the arbitration will be proceeded with the 
 respondent shall tile with the clerk of the county court his 
 statement of defence (Form 4) in which he may set up any 
 
842 
 
 COMPENSATION OK WORKMEN, 1899. Uhap. IS. 
 
 Judge of An- 
 other county 
 m»y Mt on 
 rec)iieHt. 
 
 
 
 c 
 z 
 
 < 
 
 rr 
 
 X 
 
 [r. 
 
 \ 
 
 00 
 
 XI 
 
 > 
 
 ■< 
 
 defence which would be open to him upon the trial of an ac- 
 tion in the High f'ourt, and shall serve a copy thereof iipon 
 the applicant. 
 
 14. — (1) In case the county court judge is for any reason 
 dis(]ualified from acting or in ease he desires not to act he may 
 request .some other county court judge to act for him, and 
 the judge acting on such request shall have all the jurisdic- 
 tion conferred by this Act; and no act of .such judge shall be 
 open to (juestion (jn the alleged ground that he was not th»» 
 proper judge to perform the duty or that the same had not 
 been regularly or otherwise a.''"igned to him or had not been 
 performed at such re(|uest or such direction as the law re- 
 quires. 
 
 (2) When an application is made to a judge of the High 
 (,'ourt in Chambers under section 4, .such judge shall have 
 power to direct that a county court judge of another county 
 shall hear the arbitration, and in such case the travelling 
 expenses of the judge of such other county may be paid out 
 of any moneys appropriated by the Legislature for that purpose. 
 
 15. No pleadings or documents in the nature of pleadings 
 shall be necessary in case the matter is proceeded with by ar- 
 bitration under this Act other than the notice of arbi- 
 tration and the statement of defence hereinbefore mentioned. 
 
 16. — (1) In any proceedings under this Act the judge of the 
 county court may compel the attendance of witnesses and the 
 production of documents in the .same manner and to the same 
 extent as in an action in the county court and .shall possess the 
 same powers in respect of all such proceedings as he would 
 possess in an action in the county court and the claimant or 
 respondent shall have the same right to examine the opposite 
 party for discovery or otherwise and the judge shall have 
 the same power to direct the examination of witnesses by 
 commission as in an action in the county court as aforesaid. 
 
 (2) Subpcenas for witnesses may be i.ssued out of the county 
 courts on prsBcipe as in ordinary cases. 
 
 _ 17. In any case if the parties so desire or the judge so di- 
 
 of "shorthand rects the evidence may be taken by a shorthand writer. The 
 reporter. g^g^ ^f 9,\x(i\). shorthand writer shall be borne by the parties 
 
 equally unless the judge otlierwise directs, and copies of evi- 
 dence shall be paid for on the scale allowed to special exam- 
 iners in proceedings in the county court. 
 
 FleRdingj 
 limited. 
 
 Witneasei and 
 evidence. 
 
 Employment 
 
 Referring 
 questions of 
 law. 
 
 18. The judge of the county court may if he thinks tit sub- 
 mit any question of law for the decision of a judge of the High 
 Court in chambers or single court and the decision of such 
 judge on any question of law, so submitted, shall be final. 
 
Chap. 18 COMPENSATION OF WOKKMKN, 1H99. 848 
 
 19. — (1) The costH of and inciucntiil to t)ie arbitration and Coat*, 
 proceedings connected therewitli shall be on the scale allowed 
 in iictions in the county court and shall he sul)ject to taxation 
 in the same manner. Costs in all cases shall be in the discre- 
 tion of the judge. 
 
 (2) The judge may Kx the costs of arbitration or of any 
 other proceedings before him lus between tht? parties instead of 
 directing taxation thereof, and he may also fix the costs as 
 between the solicitor of either party and his client on the 
 application of either. 
 
 130. The judge of the county court shall make his award in Effect of 
 writing (Form 5), and upon the" filing of the same with the award, 
 cli k of the county court it shall become and be a county 
 CO' 't judgment and execution may be issued thereon in the 
 sail manner as on a judgment in an action. 
 
 31. Where the amount of compensation payable under Tlia Adreement a» 
 Workme7i8 Compensation for Injuries Act has been ascer- tocompensa- 
 tained by agreement between the parties a memorandum of ° ' 
 such agreement shall be delivered or sent by registered letter 
 to the clerk of the county court, who shall, on being .satisfied 
 as to its genuineness record such memorandum in a special 
 register for a fee of $1 and thereupon .such memorandum .shall 
 for all purposes become and be a county court judgment and 
 shall be enforceable as a judgment : 
 
 Provirled that the judge 
 time rectify such register. 
 
 of the county court may ftt any 
 
 28. The duties by this Act imposed upon the judge of the Duties of 
 county court and upon the clerk and other officers of such J'^ges »»<* 
 court shall be part of their duties as officers of the county courts, 
 court, and no fees shall be payable to the judge except a fee 
 of $10 in connection with any arbitration, or to any officer of 
 the court in respect thereof other than the ordinary fees in a 
 county court action as for similar work, and any sum awarded 
 or agreed upon as compensation shall be paid on receipt of £he 
 person to whom it is payablf under any agreement or award, 
 and his solicitor or agent sliall not be entitled to recover from 
 him or to claim a lien on or to deduct any amount for 
 from the said sum awai'ded except such sum as may be awarded 
 by the judge of the county court on an application (Form 6) 
 made by either party to determine the amount of costs to be 
 paid to the said solicitor or agent, such sum to be awarded 
 subject to taxation if the judge so directs. 
 
 83. — (I) Any party to an arbitration under this Act '»fiy Appeal, 
 appeal from the decision of the arbitrator to a divisional court 
 of the High Court of Justice, and .sections 50 to .57 of The 
 Revised Statute I'espertivf/ Couvtif Courts shall, so far as applic- j^^^ t^^^j 
 able, apply to such appeals. o. 55. 
 
 nnui-a L'^n Oil SUm 
 
 ^"^^^ awarded. 
 
hU 
 
 COMPENSATION OF WORKMEN, 1899. [Chap. 18. 
 
 C 
 < 
 
 z 
 
 i 
 
 > 
 
 Rules. 
 
 Practice in 
 on^ea unpro 
 viaed for. 
 
 Amount 
 recoverable. 
 
 Rev. Stat. 
 «. 160. 
 
 Arbitration 
 optional. 
 
 Rev. Stat, 
 c. 62 not to 
 apply. 
 
 (2) The court shall also have power, on hearing any such 
 appeal, to remit the matter for the i-e- consideration of the 
 judge of the county court. 
 
 24:. — (1) The judges of the Supreme Court and of the High 
 Court respectively shall have the same authority to make rules 
 of court with respect to proceedings under this Act, as b}' sec- 
 tions 122 and 124 of The Judicature Act they have with respect 
 to the High Court ; and the Judges authorized as mentioned 
 in section 125 of that Act shall have the like authority. 
 
 (2) Until provision is made in that behalf in any matters 
 which are unprovided for by this Act, the rules of practice 
 applicable to proceedings in the County Court shall, as nearly 
 as may be, be followed. 
 
 25. In any arbitvution under this Act the claimant shall 
 not be limited to the amount recoverable in a county court 
 action but may recover the same amount as is provided in 
 case of actions under The Workmen's Covipensation for In- 
 juries^ Act. 
 
 36. Nothing in this Act contained shall oblige a claimant 
 to proceed by way of arbitration, but any claimant may bring 
 an action if he deems fit. 
 
 27. The Arbitration Act shall not apply to an arbitration 
 under this Act. 
 
 Uw of forma. 2S. The forms appended to this Act with such variations as 
 may be necessary may be used by any party to an arbitration. 
 
 Act to be read 
 with Rev. 
 Stat. c. 160. 
 
 39. This Act shall, in so far as it may be necessary in order 
 to enable the same to be carried into effect, be read with and 
 as part of The Workmen's Compensation for Injuries Act 
 where the latter Act is not inconsistent with the provisions of 
 this Act. 
 
 FORM 1. 
 
 Notice of Arbitration by iin Injured Workman with Respect to the 
 Compensation Payable to Him. 
 
 In the County Court of the County of 
 
 In the matter of The Workmen's Gompenmition for Injuries Act, 1899. 
 
 Between 
 A. B. 
 
 0. D. & Co,, Limited, 
 
 Applicant, 
 and 
 
 Respondents. 
 
 Take notice that A. B. proposes to submit to arbitration his claim for 
 compensation under the said Act, in ronpect of personal injury cauaed to 
 him by accident arising out of and in the course of his employment. 
 
lap. 18. 
 
 ly such 
 of the 
 
 le High 
 ke rules 
 hv sec- 
 respect 
 jntioned 
 
 y- 
 
 matters 
 
 practice 
 
 ts nearly 
 
 mt shall 
 ity court 
 ivided in 
 I for In- 
 
 claimant 
 lay bring 
 
 rbitration 
 
 riations as 
 rbitration. 
 
 y in order 
 
 with and 
 
 uries Act 
 
 •visions of 
 
 3Ct to the 
 
 Act, 1899. 
 
 is claim for 
 ry cHUsed to 
 lament. 
 
 Chap. 18 COMPENSATION OF WORKMEN, 1899. 
 
 If you object to an arbitration you are to notify A. B. of such objection 
 within ten days from the service of this notice upon you otherwise you 
 will be deemed to have assented to such arbitration and the same will be 
 proceeded with at such time as may be appointed by the judge of the 
 county court of the county of , the arbitrator in this matter. 
 
 Particulars are hereto appended (or annexed). 
 
 Particulars. 
 
 1. Name and address of injured workman. 
 
 2. Name, place of business and nature of business of respondents. 
 
 3. Nature of employment of workman at time of accident, and whether 
 employed under respondents or under contractors with them. (If em- 
 ployed under contractors, who are not respondents, name and place of 
 business of contractors to be stated. ) 
 
 4. Date and place of accident, nature of work on which workman was 
 then engaged, and nature of accid^int and cause of injury. 
 
 5. Nature of injury. 
 
 6. Particulars of incapacity for work, whether total or partial, and esti- 
 mated duration of incapacity. 
 
 7. Average weekly earnings during the twelve months previous to the 
 injury, if the workman had been so long employed under the same 
 employer, or, if not, during any less period during which he had been so 
 employed. 
 
 8. Estimated average amount which the workman is able to earn after 
 the accident. 
 
 i). Payments not being wages received from employer in respect of the 
 injury during the period of incapacity. 
 
 10. Amount claimed as compensation. 
 
 11. Date of service of statutory notice of accident on respondentb. (A 
 copy of the notice to be annexed. ) 
 
 12. If notice not served, reason for omission to serve same. 
 The names and addresses of the applicant and his solicitor are : 
 
 Of the applicant, 
 
 Of his solicitor, 
 
 The names and addresses of the respondents to be served with thi» 
 a])plication : 
 
 Dated this day of 
 
 (Signed), 
 
 Claimant. 
 Or 
 
 Claimant's Solicitor. 
 
 * 
 
 FORM 2. 
 
 Notice of objection to Arbitration. 
 (Heading aa in Notice of Arbitration.) 
 
 Take notice, that a motion will be made before the presiding Judge in 
 Chambers at Osgoode Hall, Toronto, (or as the case may be) on 
 the day of next, at the 
 
 hour of o'clock in the forenoon, or so soon thereafter as the appli- 
 
 cation can be heard, for an order directing that any proceedings in this 
 matter be by action and not by arbitration. The application is made on 
 the following grounds : 
 
 (Here state grounds.) 
 
 846 
 
846 
 
 I 
 
 C 
 
 < 
 X 
 
 
 COMPENSATION OF WORKMEN, 1899. Cliap. 18. 
 
 FORM 3. 
 
 Notice to Respondent of Day Upon which Arbitration will be Proceeded 
 
 with. 
 
 (Heading as in Notice of Arbitration. 
 
 Take Notice : That the Judge of this Court will proceed with the 
 arbitration herein, at on the day of 
 
 at the hour of o'clock in the noon ; and that if you do not attend 
 either in person or by your solicitor at the time and place above mentioned 
 such order will be made and proceedings taken as the judge may think 
 just and expedient. 
 
 And further take notice that if you wish to disclaim any interest in 
 the subject-matter of the arbitration, or consider that the particulars are 
 in any respect inaccurate or incomplete, or desire to bring any fact or 
 document to the notice of the judge, or intend to rely on any fact, or to 
 deny (wholly or partially) your liability to pay compensation under the 
 Act, you must tile an answer, stating your name and address and the 
 name and address of your solicitor (if any;, and stating that you disclaim 
 any interest in the subject-matter of the arbitration, or stating in what 
 respect the particulars are inaccurate or incomplete, or stating concisely 
 any fact or document which you desire to bring to the notice of the judge, 
 or on M'hich you intend to rely, or the grounds on and extent to which 
 you deny liability to pay compensation. 
 
 Such answer, together with a copy thereof for the judge, and a copy 
 for the applicant and for each of the other respondents, must be filed 
 with the Clerk of the Court 5 clear days at least before the 
 day of 
 
 If no answer is filed, and subject to such answer, if any, the partic- 
 ulars and your liability to pay compensation will be taken to be admitted. 
 
 Dated this 
 To 
 
 day of 
 
 Of 
 (Signed), 
 
 Claimant. 
 
 Claimant's Solicitor. 
 
 FORM 4. 
 
 An.swer by Respondents. 
 
 (Heading as in Notice of Arbitration.) 
 
 Take notice that the respondents, C. D. iVr Co., Limited, intend, at the 
 hearing of the arbitration, to give in evidence and rely on the following 
 facts : — 
 
 That no notice of the alleged action was given to the respondents as 
 required by suction 13 of the said Act ; 
 
hap. 18. 
 
 •roceeded 
 
 with the 
 
 lot attend 
 mention ed 
 nay think 
 
 interest in 
 
 iculars are 
 
 ^ny fact or 
 
 fact, or to 
 
 under the 
 
 )8 and the 
 
 3U disclaim 
 
 ng in what 
 
 y concisely 
 
 the judge, 
 
 it to which 
 
 and a copy 
 mt be filed 
 
 the partic- 
 le admitted. 
 
 Solicitor. 
 
 itend, at the 
 he following 
 
 apondents as 
 
 Chap. IS COMPENSATION OF WORKMEN, 1899. 
 
 Tliat tlie claim for compensation witii respect to the alleged accident 
 was not made within twelve weeks from the occurrence of the accident ; 
 
 or 
 
 That the respondents. C. D. & Co. Limited, deny their liability to 
 pay compensation under the above mentioned Act in respect of the injury 
 to A. B., mentioned in the Claimant's particulars, and that the grounds 
 <in which they deny their liability are : — 
 
 That the employment of the said A. B. was not an employment to 
 which the said Act applies ; 
 
 or 
 
 That the said injury to the said A. B was not caused by accident aris- 
 ing ont of and in the course of his employment ; 
 
 84: 
 
 or 
 
 Any other ground of defei>ce. 
 
 FORM 6. 
 
 Award. 
 
 In case of application by ivorkman. 
 
 (Heading as in Notice of Arbitration.) 
 
 Having duly considered the matters submitted to me, I do hereby 
 make my award as follows : — 
 
 1. I order that the respondents C. D. & Co., Limited, do 
 pay to the claimant, A. B., the sum of 
 
 HS compensation for personal injury caused to the said A. B., 
 on the day of , by accident arising out of and 
 
 in the course of his employment as a Wf)rkman employed by the said 
 C. D. & Co., in (state nature of employment). 
 
 2. And I order that the said C. D. & Co. do pay to the 
 claimant, (or as the case may be) his costs of and incident to this 
 arbitration such costs in default of agreement between the (larties as 
 to the amount thereof, to be taxed ])y the clerk on the scale 
 of costs in use in the county courts, and to be paid by the said C. D. «Sr 
 Co. to the claimant (or as the case may be) within 14 
 days from the date of the certificate of the result of such taxation (or 
 if the judge fixes the costs or the parties agree upon them, this form to be 
 adapted). 
 
 Dated this 
 
 day of 
 
 Judge. 
 
 M 
 
5^ 
 
 > 
 
 848 
 
 COMPENSATION OV WOKKMEN, 1899. Cliaji. 18. 
 
 FORM 6. 
 
 '2 
 rr 
 
 X 
 
 Notice of Application for Deteniiiiiation of Amount of Costs under 
 section 16. 
 
 In the County Court of 
 
 holden at 
 
 (Title as in Award or Memorandum.) 
 
 Take Notice : That I intend to apply to the judge at 
 on the day of at the hour of 
 
 o'clock m the noon, to determine the amount 
 
 of costs to be paid to me as solicitor (or agent) for you A. B. in tl.'' 
 
 above mentioned matter ; and for an order declaring that I am entitled 
 to a lien for such amount on or to deduct such an'ount from the sum. 
 awarded as compensation to you the said A. B. in the aliovo 
 
 mentioned matter and for consequential directions. 
 
 Dated this 
 
 To the Clerk of the Court 
 and to 
 A. B. 
 of 
 
 day of 
 
 Applicant. 
 
COMPENSATION OF WORKMEN, 1899. 
 
 849 
 
 NOTES. 
 
 statutes Referred To. Tlio principal statutory provisions referred loin tiie 
 act woulfl appear to l»u the following : — 
 
 fS. 20 of The Factories Act, R. S. 0. c. 2»(i, which rc(|uircs machinery ami 
 dangerouH structureK or places to be guarded, an<l openings of lioistways, 
 elevators &c., to he j)rovided with trap-doors or self closing liatchcs and safet3' 
 catches, or such like devices, and all elevator cabs to be proviVied witli a suit- 
 able mechanical device to hold them in case of accident. 
 
 SS. 4 and o of The Railway Accidents Act R. S. 0. c. 200, which ic(|uirc 
 bridges to have a clear headway of seven feet between the toj) of the highest 
 freight cars in use on the railway, and the lower beams of the liridge, an<l con- 
 tain regulations as to the packing of frogs, wing and guard rails. 
 
 S. l'J2 of The Railway Act ol Vict. c. 29 (1).), which reijuircsa similar head 
 way under bridges and tunnels, and other like structures, and s. 2(12 of the 
 Bame act, containing substantially the .same provisions as the Ontario Act, with 
 reference to the packing of frogs and wing and guard rails ; sec Wasliington v. 
 firand Trunk Ry. Co. (1«'J7) 24 A. R. 183, 28 S. C. H. 184, (18!)!)) A. C. 27"). 
 
 S. ;■> of The Workmen's Compensation for Injuries Act, R. .S. O. c l(iO, {hiiIk 
 p. 13o), defining a defect in the condition of such bridges, frogs, wing and guard 
 rails. 
 
 Onus of Proof. The exact benefit which a plaintiff will derive from section .S 
 lias not yet been ascertained. It would appear to be necessary, notwithstanding 
 that section, for him to prove that the alleged defect or non-])crforniance of 
 dutv was the cause of the injury ; Cowans v. Marshall (18!)7) 28 S. (.". R. Kil ; 
 Can'adian Colored Cotton Mills Co. v. Kervin (180!)) 29 S. C. R. 478. This 
 will probably involve the proof of the defect, or violation of the statutoiy duty. 
 The onus is cast on the defendants of proving merel3' the performance of their 
 statutory duty, but not of showing that the non-performance thereof was not 
 the cause of the injury. 
 
 Arbitration. The adoption of the arbitration proceedings is probably merely 
 optional with the workman. S. 2(5 appears to be inconsistent with s. 8, and it 
 is, in anj' view, very diHicnlt for a defendant before trial to demonstrate that 
 the cause of action can be " more conveniently disposed of by arbitration tlian 
 by action." Several applications which have i)ccn made by defendants to liave 
 siu;h causes of action referred to arl)itration have been dismis.sed. If a plaintiil' 
 combines a claim at common law, s. 8 is evaded ; Snell v. Toronto Railway Co. 
 (1900) 15th January, (Meredith C. J. and Rose J). 
 
 n 2 
 
■ f - if'' 
 
 I 
 
 
 03 
 
INDEX. 
 
 Absconding Debtors, Act respecting. R.S.O. c. 79, 257. See also Akkkst fou Debt. 
 Absconding Debtor. — -^ 
 
 (lefinition of, 2r)7. 
 
 "departs frofii Ontario with intent," 264. 
 " inilel)te(l," 2G4. 
 " resident," 2()4. 
 Attachment. 
 
 aflidavits for, 204, 265. 
 effect of, 2()i). 
 form of order, 265. 
 of sliarcM, 205. 
 
 procedure to ohtain in County Court, 258, 265. 
 Division Court, 259, 265. 
 High Court, 257. 
 sale of goods under, 260, 266, 430. « 
 
 co.its of, 260. 
 Contesting claims, 266. 
 Costs -of Sheriff, 260. 
 
 for first order, j)riority of, 266. 
 for inventory, 200. 
 Debts due to Absconding Debtor. 
 attaclnnent of, 201, 200. 
 
 liftl)ility of pcr.son paying to dol)tor after notice, 261. 
 proceedings to recover i)y debtor, stay of, 261. 
 
 by Slieriff need not be brought by him until creditor gives bond of indemnity, 
 202. 
 statement of claim to contain averment, 261. 
 wlien may be l)rouglit, 261. 
 sale of by Sheriff, 262, 266. 
 form for, 203. 
 
 purchaser entitled to sue in his own name, 262. 
 warranty not to l)e created by, 262. 
 Property of. 
 
 exemptions, 258, 264. 
 inventory, 258, 265. 
 
 costs of, 260. 
 necessity of having at time of departure, 204. 
 perishable, how disposed of, '2.V.}, 265. 
 
 to be restored if sutKcicnt security not given by plaintiff, 259. 
 proceeds of, how distributed, 202, 203, 266. 
 surplus of, may be restored, 2 3. 
 
 Acknowledgments, Written. See Limitation ok Actions, Wkitten Promises and 
 
 ACKNOWLKOOJIENTS OK LIABILITY. 
 
 Actio pemoiudis morilur cum persona, 375, 391. 
 
 Acts. See also Bills. 
 
 amendment of. See Amendment of Acts. 
 
 nuthcirizing proceedings against absentees, validity of, 50. 
 
 eonllioting. See B.N. A. Act. Interpretation Act. 
 
 disallowance of by Order-in-Council after assented to by Covernor-General, 29. 
 
 English, in force in Ontario, 71. 
 
 extra-territorial, 50. 
 
 how cited, 4. 
 
 how proved in evidence, 81. 
 
 Imperial, conflict of (Canadian with, .50. 
 
 how far in force in Canada, 50. 
 interpretation of. See Interpretation Act. 
 
 851 
 
852 
 
 INDEX. 
 
 ■' c 
 
 < 
 
 Z 
 
 CO 
 
 5 
 
 < 
 
 Acts. iiilrii virtK. See Lejjislativc Powers. 
 
 of Dominion and Quebec to bo [jrinted in Froncb, 44. 
 private. See Interpretation Act. 
 repeal of. See Interpretation Act. 
 
 Actions Against Public Officers. See Act to Protect Justices ok tick 1'eace. 
 for damages for breach of duties under private Act, 15. 
 
 Administrator See Tuitstees \su Kxec"1'tor.s, and KxECL'Toiw and Administrators. 
 
 Admissibility of Evidence. See Witnesses and Kvidence. 
 
 Affidavits. Koimal defects in, not to invalidate, 87. 
 
 made out of Ontario before whom to be made, 80. 
 of execution. See Registry Act. 
 
 Affirmations. 
 
 bj' whom may l)e administered, 7S. 
 wlieii made out of Ontario, 8.5. 
 by whom may be made instead of oath, 77,78. 
 form of, 77, 7H. 
 
 Affirmative words, how construed, 14. 
 
 Agents, goods entrusted to. See (ioods entrusted to agents. 
 Agriculture, concurrent jurisdictions of Dominion and Provinces over, .Sf). 
 Aliens, exclusive juiisdiction of Dominion respecting, ,36. 
 
 Alimony, 
 
 cannot be awardo<l by Senate, .')4. 
 ]urisdicti(m of High Court over, 17'2. 
 registration of judgment for, 17'2. 
 
 Amendment of Acts, 
 
 etl'ect of, 13. 
 
 of B. N. A. Act. .50. 
 
 when may be made, .5. 
 
 of consolidation by provinces, 37, .59. 
 
 Apology. See Defamation. 
 
 Appeals- See .Iitdicature Act. 
 
 Appointment <>f public officers. See B. N. A. Act. 
 
 construction of Acts respecting. See Interpretation Act. 
 
 Appointment Under Power. 
 
 by will. See Wills Act. 
 illusory, rule as to, 177. 
 
 Apportionment. 
 
 of condition of re-entry. See Landlord and Tenant, 
 rents and annuities. See Landlord and Tenant. 
 
 Arrest and Imprisonment for Debt- Act respecting (R. s. 0. c 80), 267 
 
 AnscoNDiNd Debtoks. 
 Arrest for debt. 
 
 setting aside order for, 276. 
 When may be had- 
 
 what must be shown, 267. 
 goo<l and j)robable cause, 275. 
 intent to defraud, 275. 
 
 Wben may not be had. 
 
 cause of action less than $100, 268, 275. 
 
 foreigners, 275. 
 
 married women, 268, 278. 
 
 non-payment of judgment tor costs, 268, 276. 
 
 penalties, 268, 278. 
 
 See also 
 
 BaU. 
 
 above, 278. 
 below, 278. 
 
KACE. 
 
 <Ti;ATORa. 
 
 07. See also 
 
 INDEX, 
 
 Arrest and Imprisonment for Beht—Ooiitinued. 
 
 SSiil—Ciiillilllli'd. 
 
 bond, 210. 
 
 iip))licatioii for allowance of, 271. 
 
 assignment of, to creditor nj)on breufh, 272. 
 
 breaeli of, l)y nonattendanee for examination, 27-S. 
 
 conditions of, 271. 
 
 endorsement of, to discharge sheriff, 271. 
 
 deiMisit in lieu of, 271. 
 
 special, 27S. 
 
 sureties for, affidavits of, 270, 272. 
 may j)lcad I'e -arrest, 272. 
 " surrender debtor, 272. 
 
 to the limits, 278. 
 Ca. re— writ of, 278. 
 Ca sa., writ of. 
 
 when affidavits necessary to obtain issue of, 268. 
 Contempt, process for, 277. 
 Commital to gaol -delay to be allowed before, 269, 
 Criminal Custody— Act not to apply to persons in, 174. 
 Custody of persons arrested 
 
 discharge from, 27.3, 278. 
 
 escape, liability of sheriff for, 278. 
 
 gaol limits, 270. * 
 
 transfer of, to own county, 269. 
 Examination of debtor, 272. 
 
 committal for refusal to answer, 172. 
 Execution against property of debtor on bail, 273. 
 Judgments. 
 
 for costs — no arrests under, 268. 
 
 for penalties " " 268. 
 
 orders foi«payment of money to be doomed, 269. 
 
 person having carriage of, to be deemed the plaintiff". 269. 
 Ne exeat, writ of. 267, 276. 
 Privilege from arrest, 276. 
 Separation of united counties -effec of, 173. 
 SherliT— liability of, for escapes, 274, 278. 
 
 Assessors. 
 
 apjjointment of by the court, 194. 
 
 Assignment by Insolvents, Act respecting. (R. S. 0., c 147), 445. 
 
 (as to constitutionality of the Act, see B. N. A. Act.) 
 
 Accounts. 
 
 to be prepared and kept accessible, 456, 473. 
 
 Advertisement for creditors, 473. 
 
 Affidavits. 
 
 how sworn, 456. 
 
 Assets. 
 
 not to Vje removed from Province, 456. 
 
 Assignee. 
 
 indemnity of, 47.3- 
 
 may renew chattel mortgage, 471. 
 
 retain leased premises for balance of term, 817. 
 must not profit by his trust, 471. 
 possession by, 466. 
 
 refusal by to proceed, creditors' rights on 
 removal of, 449, 468. 
 remuneration of, 457, 473. 
 rights of, 447. 
 sheriff as, 452, 466. 
 suing in name of, 449, 471. 
 to reside in Ontario, 448. 
 
 Assignments for Benefit ot Creditors. 
 
 amendment of by judge, 450, 466. 
 assent to by creditor, 466. 
 by company, 467. 
 by firm, 467. 
 
 853 
 
854 
 
 INDEX. 
 
 5 
 
 09 
 
 Assignment by Insolvents— C6?t<»Hw«rf. 
 
 Assignment for Benefit of Creditors— Cmin'niMd. 
 description of property in, 448, 460. 
 oxcniptions, 4(tU. 
 form and contentB of, 448, 465. 
 priority of, 450, 465, 467. 
 
 " waL'i'M over. .See Act respecting Wages. 
 
 ))ulilieation and registration of, 451. 
 how compelled, 452. 
 omisHion of, efl'eet of, 452, 466. 
 liability of sheriff for, 452. 
 j)enalty on, 451. 
 revocation of, 466. 
 to he Huhject to the Act, 448. 
 when voidable under the Act, 447. 
 when not, 446. 
 Chattel Morti^ages. 
 
 renewal of, by assignee, 471. 
 Claims. 
 
 contestation of, 455, 472. 
 
 by debtor where assignee satisfied, 455. 
 for damages, 468. 
 for rent, 470. 
 
 how to rank on different estates, 448. 
 preferential, 469. 
 proof of, 454, 468. 
 
 limiting time for, 454. 
 when not due. 455. 
 Confessions of Judgment in Fraud of Creditors, to be void, 440. 
 
 what are, 460. 
 Conveyances to Defeat Creditors. 
 
 effect of, 445. • 
 
 action to set aside — effect of when brought within 60 days, 446. 
 
 M '"o entitled to bring, 462. 
 assigni lent for creditors within 60 days of — effect of, 446. 
 following proceeds of, 449, 465. 
 how attacked, 464. 
 
 property included in, proviRions respecting, 462. 
 what transactions not prohibited, 446, 463. 
 Creditor, when to include Sureties and Endorsers, 446. 
 Distribution under Creditors' Relief Act, 467. 
 Dividend Sheet— Notice of, 467. 
 Dividends. ^ 
 
 when to be paid, 457. 
 Examination of Assignor or his Employees, 468, 472. 
 appointment for and service of, 459. 
 compelling attendance and production of books, 459. 
 conduct of, 459. 
 procedure upon, 459. 
 
 refusal of assignor to attend, penalty for, 458. 
 unsatisfactory answers, 458, 472. 
 Following. 
 
 proceeds of fraudulent conveyances, 449, 465. 
 trust funds, 470. 
 Insolvency. 
 
 knowledge of, 460. 
 meaning of, 460. 
 Inspectors. 
 
 appointment of, 452. 
 duties of, 474. 
 remuneration of, 458. 
 
 Judgments, collusive, 445, 460. 
 Meeting of Creditors. 
 
 assignee to call, 452. 
 • by request of creditors, 452. 
 
INDEX. 
 
 855 
 
 Assignment by Insolvents— Con/i»merf. 
 Meeting of Creditoia Cimti mied., 
 
 (lirf<;ii()n by jiulge on iion attendance of creditors on, 483. 
 
 viiting at, 4.5.'J. 
 
 valuing of si'cuiitiL's for, 4.'').'{, 4.54. 
 Moueys received by AssigBee to be Deposited In Bank, 456. 
 Payments by Debtor. 
 
 when valid, 44(1. 
 Persons having information as to Assignor's Affairs, obtaining Evidence from, 459. 
 PoUoy of Act,460. 
 Preferences. 
 
 IfgiNlation respecting not forl>i<lden by common law or Statute of Klizabetli, 401. 
 Pressure-Doctrine of, Ml. 
 
 what iH still sufiicient to rebut nresunii)tion of intent to prefer, 462. 
 Rent-Extent of Preferential Claim for, 470, 817, 840. 
 Sale by Debtor. 
 
 consideration for, when transfer of to creditor invalid, 447. 
 
 wiien not voidable, 447. 
 
 for advances to enable debtor to continue in business, 448. 
 Securities— aivlng up by Creditor. 
 
 effeetof, 4 '7, 4()4. 
 
 \aliiing, 453, 454, 468. 
 Set-off. 
 
 application of right of, 456, 473. 
 Time for Administration, 373. 
 TranBactions not voidable under the Act, 446, 463. 
 Wages, pajrment of protected, 447. 
 
 Assignments of debts and choses in action, 181. 
 
 where several claimants under, 181. 
 Asylums, provincial, jurisdiction of provinces over, 37. 
 
 Attorney-General. 
 
 duties of, 45. 
 
 how appointed, 45. 
 
 to be a member of executive council, .30. 
 
 to be notified before argument of constitutional questions, 71, 183. 
 
 Attorney) powers of. See Powers of Attorney. 
 
 Auctions— See Law and Transfer of Property Act. 
 
 Bank Act, The. (53 Vic. c. 31, Dom.), 549. 
 
 constitutionality of, 55, 56, 556. 
 
 principle of, 556 
 Advances for Building Ships, 582, 561. 
 Agents. 
 
 acquisition of negotiable instruments from, 552, 558. 
 
 definition of, 552. 
 
 Bank, meaning of, 549. 
 Bills of Lading. 
 
 See Warehouse Receipts. 
 Branches, 550- 586. 
 Collateral Securities. 
 
 power to take, 551, 560. 
 
 sale of by bank, 551, 560. 
 Deposit Receipts, 557. 
 Disabilities of Banks. 
 
 engaging in trade, 550, 658. 
 
 lending on mortgages or bank stock, 550, 558. 
 
 jjurchaslng real estate, 551, 660, 561. 
 
 taking security for debts contracted, 551, 560. 
 False statements. 
 
 penalty for making, 553. 
 
856 
 
 INDEX. 
 
 c 
 z 
 
 < 
 
 r 
 X 
 
 V. 
 
 r 
 > 
 
 Bank -CoH<mH('(/. 
 
 QOOdB. 
 
 loans on BO(!urily of, .Wi, 553. 
 nmnufactniTd from iirtioleH pletlgcd, 5.54, 
 nieaiiiiig of, ,")4!>. 
 
 penalty for alienating, when coverwl by warehouse roueipt, 654. 
 Hale of, on non-payniont of doM, 554, 555. 
 notici^ to lie ;^ivcn, ."m4. 
 
 Lien of bank on debtors' shares, 6S0. 
 Manufacturers, Shippers and Purchasers. 
 
 Mieaniiij; of, .V)(). 
 
 whok'Halc, loans to, .5i"i.S. 
 
 priority for over unpaid vendor, 554. 
 Ht'curity for, 553, 555. 
 Mortgages. 
 
 absolute title under, .Wl, .')."i2. 
 
 power to take as security, 551. 
 Negotiable securities, 686. 
 Non-negotiable InstrumentB, 567. 
 Penalty. 
 
 for alienating goods under liill of lading, 554. 
 
 for false statement in warehouse receipt, 553. 
 
 for violation of Act by bank, 5.'j5. 
 
 negotiable securities, .0.56. 
 Real Estate, powers of bank as to. 
 
 for oceupation, 551, otiO. 
 
 purchase of, under execution, 551, 561. 
 
 title to, under mortgage, 551, 552, 561. 
 TreauBury Board, 649. 
 Warehouse receipts, blllB of lading, etc. 
 
 See also Bills ok L.\DiNii Act, Mercantile Amendment Act. 
 
 admixture of property, ,565. 
 
 alienating goods covered by, penalty for, 554. 
 
 actual visible and continued possession. "')■< 
 
 creditors following proceeds of invali'' 
 
 definition of, 549, 562. 
 
 endorsement of, 565. 
 
 exchanging, 553, 565. 
 
 form of securities, .553, ." 
 
 insurable interest, 565. 
 
 issue of direct to bank, 56. 
 
 locality of goods, 562. 
 
 negligence of bank, 565. 
 
 negotiation of, 562. 
 
 pledge receipts, 562. 
 
 power to take, 552, 562. 
 
 priority over unpaid vendor, 564. 
 
 promise to give security, 563. 
 
 receipts given by owner, 563. 
 
 sale of goods, 554, 555, 564. 
 
 power to retain surplus on, 564. 
 warranty on, 564. 
 
 transfer of, 565. 
 
 by agent, 552, 563. 
 by third person, 563. 
 
 under Ontario Act, 566, 567. 
 
 where agent previous holder, 552. 
 
 Bills. See B. N. A. Act. 
 
 Bills of Exchange Act, The, 502. 
 Acts repealed by, 531 
 Acceptance 
 
 after dishonor, 507. 
 
 date in, 507. 
 definition of, 507. 
 dishonor by non-acceptance, 615. 
 
INDEX. 
 
 H57 
 
 Bills of Exchange— C^o«<<n«ef^. * 
 
 Acceptance —' '"ii'i'ii "<■(/, 
 
 tiir lionof, ■tii/)fii ))i'ute8t, S'it). 
 
 JiflH'lIll, ")()7. 
 
 i|imlitii'(l, .*)(I7, olti. 
 
 ii'i|uisitt'M i)f, r)<l7. 
 
 tiiin- for, r)((7. 
 
 when ovi'iduf, ")07. 
 etU'ct of, i\i\'}. 
 
 wlu'ii' (Iniweu wrongly designated, 507 
 Acceptor 
 
 liability of, ii'^2. 
 
 iiH to presentniont, iV22. 
 " protest, 522. 
 
 for honor, linhilit^' of, ")2o. 
 jjresentnicnt to, 526. 
 Accommodation party. 
 
 (letinition of, 510. 
 
 diHcliiirges of hy ])avniunt hy drawer, 54.'}. 
 
 ovidonue a» to, 543. 
 
 liahility of, 510. 
 Agreement as to method of payment, 542. 
 
 to renew, .")4.S. 
 Alteration of blU, S25, 546. 
 Amount of. 
 
 discreimney in, 504. , 
 
 when certain, 504. 
 
 where left l)lank, 508. 
 Cancellation of, 524, 546. 
 Capacity of parties to 
 
 co-extensive with capacity to contract, 508. 
 
 corporations, 509. 
 
 infants — effect of drawing or indorsement by, 509. 
 Conflict of laws- ra'es as to, 528, 546. 
 Consideration. 
 
 suing on, 548. 
 
 usurious, effect of, 511. 
 
 what is, 510, 542. 
 
 when purchase money of patent right, 511, 
 Damages. 
 
 measure of, on dishonor, 523, 545. 
 Date. 
 
 not true date, or a Sunday, eflFect of, 505. 
 (jmission of, cfl'ect of, 503, 505. 
 jirinia/dcie evidence, 505. 
 
 Days of grace, 505. 
 
 right of action not complete until expiration of, 548. 
 Defects of title, 413, 633. 
 Defects which do not invalidate, 603. 
 Delivery. 
 
 liill incomplete without, 508. 
 reijuisites of, 508. 
 when presumed, 508. 
 Discharge of biU. 
 
 l»y alteration, 525. 
 
 acceptor becoming the holder, 524. 
 cancellation, 524. 
 payment, 524. 
 waiver, 524, 
 
 Dishonor. 
 
 by non-acceptance, 515. 
 recourse for, 516. 
 unless acceptance unqualified, 516. 
 
858 
 
 INDEX. 
 
 i 
 
 c 
 
 < 
 
 V. 
 
 r 
 
 03 
 
 Bills of Exchange— Con<»»?t«rf, 
 Dishonor -r<//i^;i ncii. 
 
 t)y iion-paynient, .IIS. 
 recourse for, 518. 
 notice of, 518, 519,544. 
 mldrcHS of, 544. 
 when uiinecuMHiiry, 620, 544. 
 Drawee. 
 
 fuiidH in IiiiikIh of, not assigned by bill, 522. 
 Drawer. 
 
 liability of, .522. 
 
 personal, 542. 
 to bo named, 5()3. 
 wliero more tlian one, 50.3. 
 
 Form and interpretation of bill, 541. 
 Holder. 
 
 duties of, 514. 
 
 rights of, 514. 
 
 Holder in due course. 
 
 defective title, what is, 511, 243. 
 
 presumption that every holder is, 511. 
 
 riglita of, 514. 
 
 rights of holder subsecjuent to, 511. 
 
 who is. 510, 543. 
 Holidays. 
 
 what are "506. 
 
 where last day of grace falls on, 505. 
 
 Inchoate instruments. 
 
 tilling omissions in, 508, 542. 
 Indorser. 
 
 liability of, 523, 544. 
 
 stranger signing bill liable as, 523, 545, 
 
 Infant, note by void, S42. 
 Inland bill, 
 
 bow distinguislied, 503. 
 Interest, (04. 
 
 Interpretation of terms in Act, 502. 
 Losu bills. 
 
 action on, 527, 546. 
 
 rights to duplicate of, 527. 
 
 Negotiation, 512. 
 
 after dishonor, 513, 
 
 conditional, 513. 
 
 in blank, 513. 
 
 presumption as to, 514, 
 
 requisites of, 512. 
 
 restricting, 513, 541, 543. 
 
 special, .513. 
 
 to person already liable tliereon, 514. 
 
 when ceases to be negotiable, 513. 
 
 without indorsement, .543. 
 OmissiOHo. 
 
 aulJK.rity of hoUler to fill in, 508, 642. 
 Parties. 
 
 same ))erson as different parties, .503. 
 
 Patent right, bill or note given for, 511, 543. 
 Payable. 
 
 at a futiire time, 505. 
 
 on a CO' ■-.igency, 505. 
 
 on demand, 505. 
 
 to beivrer, 5(W. 
 
 to oriler, 504. 
 
INDEX. 
 
 859 
 
 Bills of Exchange— CoM<i«Herf. 
 Payee. 
 
 fictitious, Mi, 541. 
 
 must be certaiiitj' as to, .504. 
 
 provisions relating to, apply to special indorsee, 613. 
 
 where more than one, 504. 
 
 Payer for honor, 646. 
 Payment, 524. 
 
 for honor mipra protest, 520. 
 
 oral agreement as to method of, 542. 
 
 time for, 505, .50(). 
 
 Presentment for acceptance. 
 
 necessary delay in, 514. 
 
 omission of, effect of, 515. 
 excuses for, 515. 
 
 rules as to, 515. 
 
 time for, 515. 
 
 when necessary, 514. 
 Presentment for payment, 516, 545. 
 
 delay '■ , when excused, 517. 
 
 how made, 522. 
 
 liability of acceptor as to, 522. 
 
 rules as to, 516. 
 
 waiver of, 517, 544. 
 
 when not necessary, 517. 
 Presumption of value and good faith, 511, 543. 
 Protest. 
 
 for better security, 544. 
 
 not necessary to render acceptor liable, 632. 
 
 rules as to, 520, 521. 
 
 to be ■primn facie evideiu-e, 85. 
 
 when necessary, 520. 
 
 when notary not accessible, 534. 
 
 when noting e(|uivalent to, 5.33. 
 Referee in case of need, 507. 
 Renunciation of Rights, 524, 545. 
 Sets of BlUs, 527. 
 Signature. 
 
 as agent, 510. • 
 
 ))y corporation, 533. 
 
 by firm, 509. 
 
 by procuration, 510, 542. 
 
 forged or unauthorized, 509, 542. 
 right to recovery on, 509. 
 
 in an assumed name, .509. 
 
 necessity for, .509, 543. 
 
 need not bo in j>arty'8 own hand, 533, 
 
 presumption raised by, 511. 
 Stipulations in by drawer or indorser, 507. 
 Time, computation of, 533. 
 
 for payment, 505, T'OG. 
 Transfer by delivery, 623. 
 
 liability of, .523. 
 
 wai'ranty by, 523. 
 Onconditional Order. 
 
 definition of, 503. 
 Cheques- 
 
 Crossed, 529, 530, 547. 
 
 duties of banks as to, .530. % 
 
 effect of on holder, 531. 
 
 how reopened, 530. 
 
 protection of hank and drawer, 631. 
 
 provisions ro8])ecting to extend to dividend warrants, 534. 
 
 countermanding paj'ment of, 629, 647, 
 
 definition of, 529, 54(i. 
 
860 
 
 INDEX. 
 
 
 7< 
 
 < 
 
 
 Bills of Exchange— Co>j<t«Merf. 
 
 OheVlOB— Clint hiiieil. 
 issue of, .141. 
 
 presuntincnt of for payment, .529. 
 
 revocation of l)ank'H autlioiity to pay, 529, , 
 
 Common Law Rules, application of, S3S, 548. 
 Commencement of Act, 535. 
 Construction with other Acts, 535, 541. 
 Forms, 535, et seq. 
 
 Qood Faith, when Act deemed done in, 533. 
 Promissory Notes. 
 
 authority of Dominion over, 36, 
 definition of, .5.31, 547. 
 delivery of, necessity for, .531. 
 joint and several, 531. 
 maker of, liabilitj' of, .5.12. 
 payable on demand. 532, 548. 
 
 presentation of, 532. 
 presentation of for payment, 632, 548. 
 necessity for, 532. 
 place of, 532. 
 protest of foreign note, when necessary, 533. 
 
 provisions of Act whicli relate to bills ef exchange to extend to, 532. 
 effect of this provision, 548. 
 exceptions, 533. 
 
 Bills of Lading, Act respecting, [52 Vic. (Dom.)], 439. See also The Bank Act, Mercan- 
 tile Amendment Act. 
 Bills of Lading, 
 
 authority of agents to sign, 443, 444, 
 
 " clean," meaning of, 443. 
 
 contract contained in, 442. 
 
 estoppel by, 444. 
 
 ho* far evidence, 4'iS, 440, 443. 
 
 negotiability of, 433. 
 
 ownership of goods under, 433. ^ 
 
 sets of, 433. 
 
 " through," meaning of, 44o , 
 
 transfer of, consideration foe, 444. 
 
 what are, 441. 
 Charter, party, effect of, 443. 
 
 Consignees and endorsees, rights and liabilities of, 433, 439, 441, 442, 443. 
 Fraud of Shipper, 444. 
 
 Property, passing of by endorsement of, 441. 
 Railways, position of under Act, 441, 443. 
 Stoppage in transitu, 439. 
 
 Bills of Sale and Chattel Mortgages, Act respecting (R. S. ()., c. 148), 335. 
 Conditional Sales of Chattels. 
 
 Dominion Bank Acts may override, 55. 
 how construed, 351. 
 objects of the Act, .349. 
 persons entitled to the benefit of, 350. 
 property within, 349. 
 AffldavitB. 
 
 by trustee, .351. 
 
 by whom to be administered, 344. 
 
 for bills of sale, 335 
 
 chattel mortgages, .334, 
 
 " to secure debentures, 341, 
 
 " ^ " future advances. 
 
 " • " endorsers, 337. 
 
 for renewals, .340, 342. 
 
 who may make, 337, 355. 
 on behalf of companies, 342, 355. 
 retjuisites of, .3.55. 
 untruth of, effect of, 361. 
 
 See also 
 
', Mercan- 
 
 15. See also 
 
 INDEX. 
 
 Bills of Sale and Chattel Mortgages— CoK^inued. 
 Agent, authority of, 334, 335. 336. 357. 
 
 copy to bo attaclied to mortgiiL'e, .S37. 
 Agreementa where possesBion passes without ownership, 346 
 how tiled, :M6. 
 not to afFoct ordinary purchases, 346. 
 
 nor marked goods, 347. 
 requisites of, .34(5. 
 Agreements to give mortgages, 337, 359. 
 Contracts. 
 
 made prior to 7 April, ISiXi, 3.38. 
 
 to give ehattol mortgages to he deemed mortgages, ,3.37. 
 to make a sale to be deemed a .sale, 3.3S. 
 verl)al, elVect of, .338. 
 " Creditors," meaning of under the Act, 345. 
 Description of property, requisites of, 344, 353. 
 
 of ])roperty after a(<|uired, li.'i-l. 
 Discharges of mortgages, 
 form of, 348. 
 how certified, 343. ,, 
 how entered, 343. 
 
 where mortgage has been renewed. 
 Endorsers, mortgages to secure, 336, 357. 
 Fees. 343. 
 Fixtures, 354. 
 
 Future advances, mortgages to secure, 336, 356. 
 General authority to take or renew mortgages, 344. 
 Goods. 
 
 not in pos.session of mortgagor, 345. 
 owned by foreigners, 3.')2. 
 situate in a foreign country, .362. 
 Inspection of books, right to, 345. 
 New county, effect of formation of, 345. 
 Possession. 
 
 actual and continual change of, meaning of, 340, .353. 
 agreements where passes, without ownership, 346. 
 mortgage or sale of goods not in, 345. 
 seizure, 356. 
 
 8ubse<iuent eli'ect of, 346, .350. 
 Registration. 
 
 documents requiring, 351. 
 ottect of, .335. 
 fees for, 343. 
 lujw eli'ected, 339. 
 
 of agi-eements where possession passes without ownership, 346. 
 assignments of mortgages, 343. 
 bills of sale, 335. 
 contracts to give mortgages, 337, 351. 
 
 sell " 337. 
 
 discharges of mortgage, 343. 
 mortgages generallj', 334. 
 
 " to secure debentures, 342. 
 
 " " future advances, 3.3(1. > 
 
 " " endorsers, .336. 
 
 renewals, 339. 
 proof of, how made, 342. 
 
 time within which to be made, 3.34, 3.35, 3.36, 338, .339, ,342, 651, 
 wlien goods removed to another county, 339. 
 when time expires on a holiday, 344. 
 where to be made, 338, 339. 
 Removal of goods to another county. 
 
 ])rocedure on, 3.39, ,3.)9. 
 Renewals of mortgages. 
 aHidavit for, 340, 
 
 " by whom may be made, 341. 
 
 8ftl 
 
862 
 
 INDEX. 
 
 o 
 
 i 
 
 < 
 
 n- 
 
 X 
 
 r 
 
 09 
 
 Bills of Sale and Chattel Mortgages— Cow/imtcd. 
 Renewals of mortgages— Co/Ui/mcrf. 
 
 contents of, 339, 357. 
 
 effect of error in, 3.57. 
 
 form of, 348. 
 
 how filed, 340. 
 
 registiation of, 30!). 
 
 to be filed annually, 340. 
 
 where mortgage made to secure debentures, 342. 
 Returns to be made by clerks, 347. 
 Sale under Chattel mortgage. 
 
 ctl'ff t of where mortgage invalid, 351. 
 Sale, what is, 353. 
 Seizure, 3S8. 
 ' Vessels, Act not to apply to mortgages of, 344. 
 
 Bond given bj' i)art\' appointed under an Act. 
 how affected by its repeal, 12. 
 
 Breach of promise of marriage. 
 
 evidence in, 76. ^ 
 
 British North America Act, The. 
 
 i:t(i-31 Vie. c. 3, Imp.), 1!). See also Legislative Powers. 
 Admission of other colonies, 47. 
 Agriculture. 
 
 concurrent jurisdiction over, 39. 
 Amendment of 
 
 can be by Imperial Parliament only, 50. 
 Assets and debts of provinces, 40, 41. 
 
 arl)itrution respecting, 40. 
 Canada. 
 
 how composed, 20. 
 how divided, 20. 
 Census. 20. 
 Consolidated Revenue Fund, 40. 
 
 provincial, 43. 
 Constitutional questions, discussion of, 71, 183. 
 Courts. 
 
 constitution of, 36, 56. 
 
 j)owcr of Dominion to establish a general Court of Appeal, 40, 58. 
 proce<lure in, .36, 56, 57. 
 Customs duties, provisions respecting, 42. 
 Education. 
 
 denominational schools, 38, 69. 
 Elections, 
 first, 27. 
 
 laws for, continued, 26. 
 Errors in names of Provinces, effect of, 46. 
 Executive Councils of Provinces, 30. 
 Existing laws, continuance ot, 44. 
 as to elections. 
 Uoniiilion, 26. 
 Ontario and Quebec. 
 
 Governor-General. 
 
 ai)pli<atiou of jn-ovisions, respecting, 20, 21. 
 assent to liills bv, 29. 
 disallowance of hill assented to by, 29. 
 niay be authorized to appoint deputies, '21. | 
 powers of, liow e.\er(ise(l, 21. 
 
 Grants to Provinces yearly, 42. 
 Great Se.als of provinces, 45. 
 House of Commons. 
 
 constitution of, 25. 
 
 duration of, 28. 
 
INDEX. 
 
 863 
 
 British North America Act-Continued. 
 House of Commons— Oiiifi'ii "<■(/. 
 
 ekctonil districts for, 25. 
 
 nieniVjeiH not to sit in Senate, 25. 
 
 (|Uoruni of, 27. 
 
 representation in, 2S. 
 
 Speaker, 27. 
 
 summoning, 25. 
 
 vntaney in, 27. 
 
 voting in, 27. 
 Immigration. 
 
 concurrent jurisdiction over, 39. 
 Imperial Acts in force here, 50. 
 Intercolonial Railway, 47. 
 Judges. 
 
 a))pointment of, .S9. 
 
 salaries of, 30. 
 
 tenure of olHce of, 39. 
 
 Languages. , . , , . ., 
 
 cither French or English may be used ni debates 44 
 
 .,f^slative Powers. 
 
 See Lecisi.ativk Powers. . 
 of Dominion, 3.5, 
 
 enumerated, .3.5, .M. 
 
 incidental, how far extend, 54. 
 
 must give way to Imperial Acts, 50. 
 
 no extra territorial jurisdiction, 50. 
 
 not delegated from Imi)erial Parliament, 51 
 
 override Provincial enactments, 51. 
 
 " peace, order and good government," 51 
 
 railways, 69. 
 
 what is intra vires of, 52. 
 
 what is nltni virnt of, 53. 
 
 of provinces, 36, 57. 
 
 criminal law, 66, t)7. 
 emuimerated, 36, .59. 
 exceptions from, 51. 
 invasion of, .52. 
 procedure in courts, 65. 
 what is intrii rira-i of, 59. 
 ultra rires of, 58. 
 Lieutenant-Governors. 
 
 administration in absence of. 31. 
 api>lication of provisions, re, 30, 31. 
 appointment of, 29. 
 how powers of e.xecuted, 30. 
 oaths of, 30. 
 salaries of, 30. 
 tenure of oflice of, '20. 
 Lumber Dues in New Brunswick, 43. 
 Money Votes, 28. 
 Oath of AUegiance. 
 
 by whom to be taken, 43. 
 power of, 49. 
 
 Officers. 
 
 ai)pointment of by (Governor-General, 44. 
 
 provincial, ai)poiiitmcnt of, 4.). 
 
 powci'8 of, 45. 
 
 transfer of to Dominion, 44. 
 Parliament of Canada 
 
 constitution and privileges of, 22. 
 
 session of. 22. 
 Penitentiary for Ontario and Quebec, 46. 
 Privy Council (Canada), 
 constitution of, 21. 
 
864 
 
 INDEX. 
 
 ■< 
 
 
 S! 
 
 
 i 
 
 > 
 
 British North America A.c%—OoiUimied. 
 Proclamations. 
 
 afti'i" union, under Acts before union, 46. 
 
 l)efi)ie union, to coniinencL' iifter, 46. 
 Provincial Constitutions, 29, 31, 32, 33, 34. • 
 
 executive coun.'il.s, ',V\. 
 
 legislative council of Quebec, .32. 
 
 legislatures, .SI, .'«, 3.S, 34. 
 
 jjrovisions as to Parliament wiiicli apply to, 3"). 
 
 I.,ieutenant-(iovcrnors, '29, S(l. 
 
 New Brunswick, 34. 
 
 Nova Scotia, .S4. 
 
 Oiitaiio, 31, .32, 33. 
 
 Quel)cc, 31. 
 Queen. 
 
 apj)lication of ))iovisionH referring to, 19. 
 
 assent to bills, 2!l. 
 
 command of forces to remain in, 22. 
 
 executive autliority to continue in. 20. 
 Railways, Jurisdiction oi Dominion over, 69. 
 Records, division of, 46. 
 Seat of Government. 
 
 of Dominion, 22. 
 
 provinces, 31. 
 Senate: 
 
 adding members, 23. 
 
 constitution of, 22. 
 
 diBcjualirtcation of Senator, 24. 
 
 members of Legislatix'e Council of Quebec becoming, provisions respocting, 43. 
 
 numl)er of mcmlxM's, 24. 
 
 (jualification of members, 23. 
 declaration of, 49. 
 
 (juorum in, 2,). 
 
 representation in, 22. 
 
 resignation of jdace in, 24. 
 
 tenure of scat in, 24. 
 
 sunnnoning, 23. 
 
 vacancies i.i, 24. 
 
 voting in, 2iS. 
 Speaker of House of Commons, 27. 
 Temporary Acts- construction of, 45. 
 Townships in Quebec constitution of. 46. 
 .Treaty obligations authority of Dominion to perform, 44. 
 Uniformity of laws in the Provinces, provision for, 39. 
 Union of provinces into one Dominion, 20. 
 
 Canada, meaning of in B. N. A. Act, 20. 
 
 Canada Evidence Act. See Witnesses and Evidence. 
 
 Canada Temperance Act, &3, 59. 
 
 Canadian Copjrright Act. 
 
 conlirnied by 38, 39 Vict. (Imp.) c. ."53, 60. 
 repugnant to Imperial Act, 50. 
 
 Candidate for public ofSce. 
 
 libel of liy newspaper. See DEFAMATION. 
 
 Census, 8, 28, 3."). 
 
 Charitable Uses. See Mortmain and Chakitable Uses. 
 
 Charities, provincial, jurisdiction over, 37. 
 
 Chattel Mortgages. See Bills ok Sale and Chattel Mortoaoes. .Mso tJoNiuTioNAi, 
 
 S.VI.IO OK ClIAl-l'ELS. 
 
 Cheques. See Bills ok ExciiANflK. 
 
 Civil rights in provinces, jurisdiction as to, 37, 39, 57, 63. 
 
iiiit, 43. 
 
 ONPlTrONAI, 
 
 INDEX. 865 
 
 Ciyil Servants. See Puduc Offickrs. 
 Commissions 
 
 to examine witnesses. See Witnesses and Kvidknce. 
 to try causes, issue of by High Court, 184. 
 
 Companies, Knglisli Act respecting, does not extend to Canada, 71. 
 debentures of, when assignable, o85, .50.3. 
 how treated, 1."). 
 
 incorporated l)efore Confederation may be required to takeout i)rovini'ial license, 63. 
 incorporation of. 
 
 etfect of words iiscd in, 8. 
 
 powers whicli legislature niaj- grant on, (!3. 
 
 when witliin iirovincial legi.slative powers, 37, ").'), 02, 03. 
 
 when not, oS. 
 may convey by liargain and sale, "i78, .'590. 
 navigation, provincial powers as to, 03. 
 taxation of, 00. 
 ■winding-up of, 03. 
 
 Compensation, for injuries, workmen's. See Workmen's Compensatio*' for In.ii-ripis 
 Act. 
 
 to families of persona killed by accident and in duels. See Lord Camtbell's Act. 
 
 Competency of witnesses. See Witnesses and Kviden k. 
 
 Gompoiinding oflFences. 
 
 against provincial laws, 07. 
 
 1 >'■■', 360. 
 
 Conditional Sales of Chattels. Act respecting (R. S. O. 
 
 effect of Act, 303. 
 Assignments of hire receipts, 364. 
 
 Chattels affixed to the realty to remain subject to lieu 361.', 364. 
 Copy of receipt note to be left with vendor, 361. 
 Filing of instrument. 
 
 duties of clerk on, .361. 
 
 in unorganized districts, 360. 
 
 time for, 300. 
 
 when necessary, 360. 
 
 where to be made, .360. 
 Household Furniture, 360. 
 
 not to include pianos, etc.. 360. 
 Notice of Sale. 
 
 retjuisites of, 302. 
 
 waiver of by bailee, 304. 
 
 when necessary, 301. 
 Requisites of valid sale. 
 
 instrument to be filed, .300. 
 
 name and address of maker to l)e attached, 360. 
 
 to bo in writing, 3()0. 
 Statement, to be given on request, 361. 
 
 penalty for refusing, 301. 
 appeal from, 303. 
 
 person rc<iuiring, to give address, 361. 
 Taking possession, effect of, 363. 
 Time for redemption on seizure for breach of condition, 361. 
 
 Conflicting Acts. See B. N. A. Act. 
 
 Consolidation of actions, 
 
 of libel. See Dkfamation. 
 
 under Workmen's Compensation Act. See Work.men's Compensation for Injuries. 
 
 Constitutional questions. 
 
 liow rai.sed, 71, 1S3. 
 reference of to Courts, 71. 
 
 Construction of Statutes. See Interpretation Act. 
 e2 
 
866 
 
 INDEX. 
 
 
 
 :o 
 
 c 
 < 
 
 r 
 
 r 
 
 03 
 
 > 
 
 50 
 
 m- 
 
 Contracts, 
 
 Act iiutlioiiziiij; proowdingH agaiiiHt absentee on, validity of, 50. 
 
 by married woman. See Married Women Keal Estate Aet. 
 
 by workmen, wiien a defence to action for compensation, 1.37. 
 
 in relation to goods entrusted to agents !See (Joods Entrusted to Agents. 
 
 of insm-aiice, provincial jjowers to regulate, 63. 
 
 part ))erfortnance of, wlu-n satisfaction of, 1S2. 
 
 stipulations in, when not of tlio essence, 181. 
 
 Conveyances, by Married Women. See The Married Women's Property Act, Tuk 
 Maukiki) Women's Real Estate A('t. 
 vohintary. See Volcntaky Conveyances. 
 
 Co-partnerships, registration of. See Registration of Co-partneushii's. 
 
 Copyright. Canadian Aet respecting re))ughant to Iniperuil Act, oO. 
 
 exclusive jurisdiction of Dominion over, 30, .")6. 
 
 does not curtail authoritv of Imperial Parliament, 50. 
 
 j)rotection atloi'ded by Canadian, 50. 
 
 Corporation. See Companies. 
 Corroboration- See Witnesses and Evidence. 
 ' County," meaning of term, 7. 
 
 County Courts Act, The. (R. S, 0. c. 55), 219. 
 Appeals from to a Divisional Court. 
 
 costs of, 233. 
 
 from decision or order of a judge, 232. 
 
 may be made after judgment signed, 232. 
 motion for new trial instead of, 231. 
 
 grounds for, 231. 
 
 party making, debarred from appealing, 232 
 powers of Divisional Courts on, 232. 
 pleadings, etc., to lie ccrtilied, 232, 233. 
 setting down, 233. 
 who may bring, 231. 
 
 Clerks. 
 
 appointment of, 220. 
 
 death of, clerk of the peace to act pro tern,, on 221, 
 not to draw or advi.se on documents, 221. 
 otiice hours of, 220. 
 place of olHce of, 220. 
 security by, 220. 
 taxation of costs by, 220. 
 to account for fines, 220. 
 Continuation of existing courts, 219. 
 Costs, tariff of, how fixed, 233. 
 Execution, writs of, 230. 
 
 may run into other counties, 230. 
 Jurisaiction of. 
 
 actions not within, 223. 
 
 abaniloinuent of excess, 225. 
 
 costs of. 220. 
 
 title to land, 235. 
 
 transfer of to High Court, 224, 220, 2.36. 
 
 when contirnuMl in County Court, 224. 
 actions within, 223, 224. 
 
 for recovery of land, 22i>, 234, 236. 
 
 li(iui<lated claims, 235. 
 
 " " combined with unliquidated claims, 2.35 
 
 limitations of — by amount or value, 2.34. 
 
 to a |)articuli\r county, 234. 
 relief which is witliin, 220. 
 
 as to granting new trials, 220. 
 title to land, when not within, 235. 
 
 when witiiin, 230. 
 want of, jjleailing, 22S. 
 
 issue on, liow taken, 229. 
 when defence or counter claim involves matters beyond, 226. 
 
INDEX. 
 
 867 
 
 Act, TllK 
 
 County Courts Act— Continued. 
 New trial. 
 
 yroiiiids for, 231. 
 
 motion for, "231 . 
 
 piiity moving for debarred from appealing, 2.32. 
 
 jjower to grunt, 229. 
 Place of trial, 228. 
 Practice, 228, 229. 
 References. 
 
 coats of, 2.S1. 
 
 powers under order, 2.S0. 
 
 report — a|)peal from, 2:51. 
 filing of, 2:}1. 
 
 Removal of actions in, to High Court, 192, 216, 226, 227. 
 
 for c<|uitalilu reasons, 227. 
 
 costs, 22S. 
 
 powers of High Court, 227. 
 
 procedure, 227. 
 
 statement of claim, need not be delivered anew, 228. 
 Replevin in, 248. 
 Rules -power to enforce, 230. 
 
 of coiu't, 2H.S. 
 
 of law. 23:{. 
 Sheriff 
 
 need not attentl sitting of, 222. 
 Sittings. 
 
 additional — ])ower to hold, 222. 
 
 con<'urrent- -for trial of jury and non-jury cases, 222. 
 
 hoiu' for connnencement of, 222. 
 
 adjourinnent of by sheriB' in al)sonce of judge, 223. 
 
 non-jury, 222. 
 
 quarterly, 221. 
 
 in York county, 221. 
 
 trial, semi-ainnially, 222. 
 in York, (|uarterly, 222. 
 
 Special examiners of High Court to he officers of County Court, 221. 
 . Who to preside over courts, 219. 
 
 on illness or absence of jn<lge, 219. 
 Venue for certain actions. 228. 
 
 Courts, constitution of. See B. N. A. Act, County Courts Act, Judicature Act, 
 Sii'nioMK CoruT Act. 
 Jurisdiction of. 
 
 ,Sce .TUKIsniCTION'. 
 
 Legislative powers over, 
 of Dominion. 
 
 to ap])oint judges of, 39, 65. 
 constitute, .30. 
 dispense with jury, (i.'i. 
 
 regulate procedure in, in ('riminal matters, 30. 
 of provinces. 
 
 over Division Courts, 05. 
 
 to allow judge of one county to preside in another, 65. 
 ajtpoint judges i)f, 65. 
 constitute, 38. 
 extend jurisdiction of, 65. 
 fix procedure in, in civil matters, .38. 
 l)rcscril)e ([ualifications of practitioners, 65. 
 regidate attendance of jurors, 05. 
 Pleadings in, may he in French or English, 44. 
 
 Covenants, implied. S(h' Law a.m) Transkeu of I'ropkrty Act. 
 
 Creditors' Relief Act, The. 
 Absconding Debtors, 431. 
 Appeals, 424. 
 
 (R. S. 0., c. 78), 410. 
 
 J 
 
868 
 
 INDEX. 
 
 
 
 c 
 
 2 
 
 E 
 
 CD 
 
 Creditors' Belief Act -Continued, 
 Application of Act, 430. 
 Attachment proceedings on, 418. 423. 
 Books, to be kept by Clerk of County Court, 417. 
 
 i^tlfrt (if fiitiy ill, 417' 
 
 ciipy of wIr'Ii to l)u eviilciice, 417. 
 
 Claim, 
 
 affidavit of, 412. 
 
 tiling of, 4l.'i. 
 
 form of, 413, 420. 
 
 sorviie of, 412. 
 how i;.stal)li.slic'(l in another county, 410. 
 proceoding.s wliero disputed 
 
 l)y tTL'ditor, 41i5. 
 
 hy del)lor, 415. 
 
 decision in one county binding in another, 416. 
 
 how determined, 41(1. 
 
 where not disputed, 414. 
 
 Costs, 418. 
 
 of renewing eertifieate, 420. 
 
 Creditors without Execution, rights of, 430. 
 Decision to bind all Creditors, 423. 
 Distribution of Money. 
 
 levied !>_, Sheritf, 411, 420. 
 
 after entry of notice, 412. 
 
 contestation of, 415, 422, 430. 
 
 no preference in ))etween writs, 412, 420, 4.30. 
 
 rights of suhse(iuent execution creditors wliere mortgage after first execution, 
 
 statement to lie kept pending, 421. 
 
 under interpleader j)roce(!<liugs, 411. 
 
 luider R. S. 0., c. 78, 457. 
 
 when creditors not entitled to share in, 412. 
 
 wiiere amount insufficient to pay in full, 420, 421. 
 
 Division Court, 
 
 proceedings in, 417, 431. 
 
 Examination of Parties, 416. 
 Execution, 
 
 creditors without, rights of, 430. 
 
 debtors cannot retire specific, 430. 
 
 mortgage, after-eflect of, 422. 
 
 no prcfeienco between, 412, 420. 
 Fees, Scale of, 425. 
 Forms. 426, 427, 428, 429. 
 
 defects of, 425. 
 
 Fraudulent Conveyances -Jurisdiction in Actions to set aside, 430 
 Fund in Court payment of to Sheriff, 419. 
 Garnishment-rights of Creditor on, 430. 
 Ooods in bands of Division Court Bailiff. 
 
 delivery of to Slieritl', 41!). 
 
 distril)Ution of proceeds of, 420. 
 
 fees of bailill'on, 420. 
 Insolvency Laws- Act subject to, 426. 
 Interest, 420. 
 Interpleader Proceedings. 
 
 distril)ution of moneys realized by sale under, 411, 430. 
 
 riglits of creditoi's in, 41 1. 
 Interpretation of terms in Act, 410. 
 
 Judge. 
 
 decision of, effect of, 423. 
 
 direction by, as to trial, 423. 
 
 ])owers of, 425. 
 Mortgage Actions— distribution of surplus on sale in, 430. 
 Notice by debtor of address for service, 413. 
 
 revocation of, 413. 
 Partnership Creditors, 439. 
 Payment by debtor before sale, 417, 418. 
 
 will not retire si)ecitic execution, 430. 
 Priority among execution creditors abolished, 411. 
 
 422. 
 
INDEX. 
 
 869 
 
 Creditors' Belief Actj-Con/iiiii<il. 
 
 Proceedings where debtor leaves execution unsatisfled, 412. 
 Service. 
 
 of atlidavit of claiiu, 412, 4i;{. 
 
 on (hiiiuiiiit where no luldress given, 41.'!. 
 
 on Toronto iigunt, MS. 
 Sheriff. 
 
 imynient l)y. how coin|)clle(l. 4"2I. 
 
 to deposit iiioney.s in liiink, 4'2',i. 
 
 to enter notiee of levy forthwitli, 411, 4.S0. 
 
 to give infoniiiition, 421 
 
 to keep statement, 4'il, 
 Sheriff's Poundage, 420. 
 Time -when may be granted to Debtor, 417. 
 Trial direction by Judge as to, 423 
 Writs. 
 
 etl'ect of expiry or withdruwal of, 4IS 
 
 may lie sued out into any eounty, 410. 
 
 no preference between, 41'2. 
 
 Criminal Law. 
 
 Dominion Legislative powers over, 3ti, .')6. 
 to deelnre anj'thing a erime, .W. 
 but not to thereby exclude provincial powers' for protection of civil rights, 57, 
 
 04, 07. 
 to make a ci'iminal prosecution bar civil remedy, .57. 
 Provincial enactments as to, 38, 08. 
 may delegate pardoning power, 07. 
 
 impose .sanctions to enforce laws, .57. 
 provide for tlie a)>plication of penalties, 67. 
 punish by tine or imprisonment, 07. 
 
 insults to members of Legislature, 07. 
 
 tiio compounding of offences against provincial laws, 64, 67, 69. 
 not invalidated bv severity of sanctions imposed, .57, 04. 
 nor by doulde liability caused by Dominion Act, 57. 
 wiien no punishment imposed, 07. 
 when ii/Ira riren, 58, 04. 
 
 " Crown, The." 
 
 meaT'nig ot expression, 0. 
 
 no prerogative in to admit appeal in trials of election petitions, 59. 
 
 not affected by acts imless named, l^. 
 
 public lands vested in, 01. 
 
 relations of to Provinces, 72. 
 
 representation of in law courts may be decided^by Provincial Legislatures, 59. 
 
 Crown Orant — does not convey precious metals, 71. 
 
 Currency — jurisdiction over, 36, 
 
 Damages 
 
 for detention of dower, 252. 
 
 in actions against Justices of the Peace. See Justices of the Peace. 
 
 instead of injunction, 182. 
 
 on libel. See Defamation. 
 
 under Lord CampbeH's Act. See Lord Campbell's Act. 
 
 under Workmen s Compen-sation Act. See Workmen's Compensation for Injuries, 
 
 Date fixed for commencement of Act, what nuiy be done before, 5. 
 
 when Act assented to, endorsement of an Act, 11. 
 Debt, arrest for. See Arrest for Debt. 
 Debtors, absconding. See Abscondin(i DEnTORS. 
 Declaration. " , 
 
 by whom may be administered, 78. 
 
 when made out of Ontario, 85. 
 by whom when taken instead of an oath, 78. 
 form of, 78. 
 
 of partnership. See Registration of Co. Partnerships, 
 of qualification to be taken by Senators and Legislative Councillors of Qubec, 43. 
 
 form of, 49. 
 
870 
 
 INDEX. 
 
 K 
 
 
 
 c 
 z 
 
 < 
 
 rr 
 X 
 
 z 
 
 r 
 
 5 
 
 Deeds- -!^<'i' I^aw and Tkansfkk ok 1'koi'kuty A(T. 
 
 Defamation (Act KKsiKfTisii Actions ok Libel and Slanukk. R.S.O. c, 68) 109. 
 Apology, in mitigation of damages. 110, lis. 
 
 .MiitliciiTicy of, 11 (|iu'Htii(ii for tlio jury, ll,"». 
 u lu'M iiiiiHt lie puiilislu'il, 11/). 
 Averments, prefatory, no, 116. 
 Candidate for public office, libel of by newspaper, 111. 
 Damages In newspaper libel. 
 
 when only actual (liinmuu reco\efal>k>. 111, 116. 
 Hpciial, when need not lie hIiowii, 110. 
 Examination of partleH on application for security for costs, 111. 
 Jury, function of In actions of libel, 109. 115. 
 Newspaper, meaning of, 109, 115. 
 actioiiH for liiiel ill : 
 
 L'oiiHolidatioii of, 113, 117. 
 damages recoverable in, 111. 
 
 where actions coiiHolidated, 114. 
 docs not lie until notice given, 111. 
 joinder of certain persons as parties defendant, 114. 
 mitigation of damages, evidence in. 114. 
 place of trial of, 1 13. 
 
 plea of insertion without malice or gross negligence and apology, 111. 
 remedy over in, 117. 
 security for costs in, 112, 117. 
 no appeal from order for, 114, 117. 
 special case of candidate for office. 111. 
 time within which action must be brought, 113, 117. 
 Notice of action against newspapers. 
 when iieceHsary, 111, 11(3. 
 how time computed, 117. 
 Payment into Court as amends, 111, 116. 
 Frivlliged reports. 
 
 judical prouedings, 112, 116. 
 
 exceptions, 116. 
 public meetings, 112. 
 
 Security for costs in actions for newspaper libel, 112. 
 what defendant must show to obtain, 117. 
 
 criminal charge, 117. 
 
 good defence on merits, 117. • 
 
 sufficient property, 117. 
 slander of a woman, 110. 
 
 Slander imputing lucbastlty to a woman, 110, 118. 
 security for costs, 110, 115. 
 special damages need not be proved, 110. 
 statement of claims to refer to Act, 110. 
 
 Statement of claim. 
 
 to refer to tiie section under which made in certain cases, 110. 
 Verdict. 
 
 jury not to be directed to return verdict of guilty on mere proof of publication and 
 the sense ascribed, 109. 
 
 special, may be found by jury, 109. 
 
 Defects, formal, in affidavits not to invalidate, 87. 
 Denominational Schools- See B.N. A. Act. 
 
 Depositions, certified cojjies of as evidence, 87. 
 
 Deputy Governor General, appointment of, 21. 
 
 Deputy Begistrar, included in word Registrar, 8. 
 
 Deputy Speaker, 27. 
 
 Devolution of Estate Act, The. (R. S. 0. c. 127), 612. 
 Application of Act, 612. 
 Administration, application for, 613. 
 
INDEX. 
 
 871 
 
 Devolution of Estate Xct—Coniiinml. 
 Advancement of children, effect of. 628. 
 i'<lii(;iiliiiii nut tci ln' (It'fint'il, (121). 
 A£Bdavlt8 by administrator, 613. 
 
 limy lie uxeil in |)t'ucue(ling8 under the Act, 020. 
 Ancestors. 
 
 lineal |)r('ft'iri'il Id ciillatoral, 623. 
 
 male line picfciifd, (>•_'.'{. 
 
 niotlic T cif niDif iiiiintc ancfstoiH |iiift'rre<!, (124. 
 Assimilation of real and personal property, 631. 
 Attainder, eifect of, 622. 
 Brothers and sisters, 623, 626. 
 
 children of decea.sed, ti2(i, 032. 
 Caution. 
 
 etl'uet of wtiere snecifies landfl, 617. 
 
 e.vpiratiuii of, 032. 
 
 form, 010. 
 
 registration, 610, 0.32. 
 
 after twelve months, 617. 
 effect of, 018. 
 
 renewal, 
 
 witiulrawal, 617. 
 Children. 
 
 of deceased brother or sister, 620, 0.32. 
 
 rule where some living and others dead leaving i.ssue, 62.'>. 
 Co-heirs to take as tenants In common, 628. 
 Curtesy. 
 
 election to take interest instead of, 013. 
 
 saving as to, 013, 028. 
 Debts, application of property to pay, 614. 
 
 purciiascr to hold free from, 019. 
 Descendants. 
 
 born after death of intestate, 028. 
 
 descent on failure of, 020, ()27. 028. 
 Descendants In equal degrees of consanguinity, 625. 
 
 rule where some dead leaving issue, 020. 
 Descents. 
 
 before 1st .July, 18.34, 021. 
 
 since Ist .July, 18.34, (521. 
 
 between 1st .July, 1834, and 1st January, 18.")2, 023. 
 
 between Ist January, 1852, and Ist July, 1880, 024. 
 Dower. 
 
 election to take share in lieu of, 013, 6?2. 
 
 sale of land free from, 015. 
 
 .saving as to, 013, 028. 
 Executors and Administrators. 
 
 powers of, (i!4, 018, 032. 
 Father, 614, 624, 626, 627. 
 Half blood. 
 
 riglit of to inherit, 624, 623. 
 
 Heirs. 
 
 co-heirs to take as tenants in common, 628. 
 
 descent wiiere none, 027, ()28. 
 
 entitled under will to take as devi.sees, 022. 
 
 of person living on 1st July, 1834, effect of limitation to, 023. 
 
 proof of entry, l)y unnecessary, 023. 
 
 l)i'oper parties in foreclosure, 033. 
 
 vesting of estate in, after a year, 010, 017. 
 
 wlien personal representative deemed, (il4. 
 
 when take a.s purchaser under limitation to ancestor, 022. 
 History of legislation in Ontario respecting, 631. 
 Illegitimate persons not to Inherit, 628. 
 Infants. 
 
 Official Guardian of, 014, 032. 
 
 sales of real estate in which interested, 014. 
 
 approval of by Official Guardian, 014, 618, 019, 0.32, 0.33. 
 
872 
 
 INDEX. 
 
 Devolution of Estate Act Cotuhiued. 
 Interpretation of terms in Act, 620. 
 Married woman. 
 
 a'liiiiiiisUatioii of estate of, 7H8. 
 
 (lis .riliiitioii of estate of mi intestaey, 614. 
 
 . -ivinj,' as to huslmiid's rights, 013. 
 Mortgages. 
 
 Mill- ill Lo'ke King's Act n.spec-ting not afftctecl, 68'2. 
 Official Guardian. 
 
 apiUDval of sa'e liy, wiien infants interestetl, 614, 618, C19, 6*2. 
 
 deputy olfiuial guaiili.ui, t'y2<). 
 
 local guardians, (J14. 
 
 may tranie rule.s and tarif!'s, 620. 
 Partition. 
 
 lidit of parties intere8te<l to imrcliase, 629. 
 
 sale instead of, 63<). 
 
 Personal representatives. 
 
 ot nianud wcmieii, 777. 
 
 jjowe: < of, 014, 6:12. 
 
 pro;K?rty to devolve (jn, 613. 
 
 security l>y, 013. 
 
 when fleenicd lieir. 014. 
 Property to which Act extends, 612, 613. 
 Purchaser. 
 
 descents to lie tracc<l from, 622. 
 
 from exe<utor8, protection of, 019, 620. 
 
 wlio deemed lo he, 022. 
 
 Sales 3f real estate ot deceased persons. 
 
 hy executors and ad;iiinistrators. OlS. 
 
 conhrmation of certain sales, 019. 
 
 l)er.sons acccjiting shares of jiurchase money to \>c oiUnd hy 619. 
 
 protection of ])urchaser,« at, 619, 020. 
 
 whcro infants interested, 614, OlS, 019. 
 Shares on intestacy, table of, 633. 
 Widow. 
 
 Share of an intestacy, 61o, 616, 632. 
 
 Distress hy Landlord. See Lasdi.oud ash Tknants' A>t. 
 hy mortgagee, 597. 
 
 Division Courts, provincial powers over, 65. 
 replevin in, 248. 
 
 Divorce, non-inion jurisdiction over, 36, 56. 
 limitations of, 56. 
 
 Dower Act (R.S.O. c 164), 789. See also Devoi.ition of Kst.\te.s A(t. M.\kried 
 
 Womks'h Pkoi'ekty Act. 
 Action for dower. 
 
 when not niaiiitainalde, 794, 798. 
 Arrears of equitable dower. 
 
 right of v.iilow to, 797. 
 Bar of dower by contract, 798. 
 Conveyance free from dower, 791, 792, 793. 798 
 
 wife contined in a.sylnm, 791, 792. 
 
 living apart from Inishimd. 791, 793. 
 lunatic, liut not in a.syluin, 792. 
 Deed without bar of dower 
 
 ctl'cct of, 7!U, 79S. 
 Dower ad ostium ecclesiaa and ex uiisensu patris abolished. 790, 797. 
 
 at Ciiminon Law, 790. 
 Election of widow, 613, 791. 
 Equitable estates, 789. 
 Forms, 796. 
 
r. Makriep 
 
 iXDEJL 
 
 Power Act — ■-«>;*^»"i*«/?f/. 
 
 p^-oCectkiO ol |»urcJuu«r from, rSO, 796. 
 
 when htutttud of mar conwr free from dov«r, 791. 792. 793. 
 Kaiaclaads. IN 
 ■ottsas* 
 
 coDtribatMa to bv wife. 7d7. 
 
 effixt of bar of <dk>«-«f . cUa<>« in, 790. 79d. 
 
 risfat of wife Xf> nde«ta, 797. 
 
 sd« under, r:ght<i of wife of ■lartgigor on, 790. 797. 
 o1>}ee«i of the JUXIK. 
 OrCer dixpcasias wttb dower. 191. m, m 
 
 cur be eodor J! oa denL, 79L 
 <!««:nptiaa of land in, 79(. 
 
 registration of. 793- 
 f« for. 7»4. 
 Order s*nata? r.??!* •?'-1«veT. ?C 
 PaTnen: izv: C : . -.fjvoBtofwlueii married vosias do'7ab>, TSl. 
 
 ■ » idower. 7S9. 
 
 873 
 
 w-^-« •„ 
 
 :>?) 
 
 :.._--...:. 791, lai 
 
 Dower Proceedune Act. The. tR-S-O. c.67|. 251. 
 
 .::■ ■ ■ ■. ---■> ■:'*!!'0«-. tiSS. 
 
 ■-; •■ ,.,.:. -iSS. 
 
 <Wtii uf. uf f 'ciiUiki 3>y 00 *ei prov^coa for. 232 
 doiim oif. 
 
 to 4Mlm«Mitie Inr bo«uidf . 2oi3. 
 tc aartsUuas im pm T t m t mA. 2od. 23«>. 
 
 to MMiM a T«*Hv tun en Ii«a of, in t:<ertun canes. 233, 236. 
 fc«»af. 29& 
 
 oath to be uken bv. 2S2. 
 to be odiccts of the OMirt, 232. 
 viithoot action. 2Slik 
 
 do ai c w and tenant max agree np'^i, 2SI. 
 fKr.kov( 
 
 Oeteattohor. 
 B«par:af 
 
 appMk fivtin. 2H. 
 
 (or mi»:«iodii.'<:t. 234. 
 
 MNis of. -iS^. 
 
 iime for. 2>|. 
 
 regmntMn 
 
 2j& 
 
 writ of p>.wi9ei9sk«a after. 2N3^ 
 rrtora of vrit with. 2SiS>. 
 
 iint« for OMv K^ enlar^ged. 234. 
 Tiaamt ia pwonrtai. twr of vtas serred -r.^h •writ. Vi 
 TMrtS' na ta Um of. wi. 
 
 to be a ben on tiie tand». 25^31 
 
 Daols. Itabitity «>f pnnctpak and wKuMMk in. :»«e L«.>Rn C\Mr»£U.'5 .^<ct. 
 
 " DoriBf ploasors,'* oieiuiiag of. 1$. 
 
 Educatioa. :S<* RX.A. Acr. 
 
 ElectioQ Act- m;4£it;« vmuuwc ««« iot {Knaitctw ondcf . !3l 
 
 Elections- ><< RX.A. Act, 
 
874 
 
 INDEX. 
 
 
 7, 
 
 < 
 
 r 
 
 c 
 
 03 
 3D 
 
 > 
 
 Enabling words, when compulsory, 14. 
 Enacting clause in Statutes, form of, 4. 
 
 Enforcement of provincial laws, jurisdiction as to, .38. 
 
 Equitable jurisdiction of High Court. See .Iudicatuke Act. 
 
 Equitable waste, right to commit, when conferred, 180. 
 
 Equity, rules of to prevail in case of conflict, 182. 
 
 Errors, in names of Provinces, 4(5. 
 
 Escheated lands, title of Provinces to, 61, 70. 
 
 Evidence- See VVitnkssks and Evidence. 
 
 Evidence between Vendor and Purchaser. See Vendors and PimciiASERs Act. 
 
 Examination of witnesses. See Witnes.ses and Evidence. 
 
 Executive Council of Ontario and Quebec. 
 
 liow appointed, 4;>. 
 
 how formed, 30. 
 
 excepted from restriction on election of office-holders, 33. 
 
 powers and duties of members of, 43. 
 
 Executive Government of Carada vested in Queen, 20. 
 of Nova Scotia and New Brunswick, 30. 
 
 Execution, Act respecting (R. S. O. c. 77), 317. 
 Chtirch pews, sale of, 328. 333. 
 Contingent Interests, 
 
 liability of to seiy.ure, 326, 332. 
 
 exception as to dower, .326. 
 Dower, inchoate right of not exigible, 326. 
 Equitable rights in chattels, seizure of, 321, 329. 
 Execution creditors, priority among. s,,c Creditors' Relief Act. 
 Executors, execution under Judgment against, 327. 333. , 
 
 Exemptions from seizure, ni", :w. 
 
 implements of trade, 328. 
 
 interpleader, 328. 
 
 not to extend to — 
 
 identical goods for which debt contracted, 319 
 goods liable before October 1st, 1887, 310. 
 
 right of debtor to select which chattels to take, 318. 
 elect to take proceeds of sale, 318. 
 
 wearing ajjparel, 328. 
 
 widow entitled to exemi)tioMs of debtor, 318. 
 Goods, In possession of third parties. 
 
 seizure of ,322, .3.30. 
 Money and Securities, seizure of, 321, 329, 330. 
 
 collection liy sheriff, .330. 
 
 payment to'sheritt' under. .322. 
 
 proceeds, how diaposed of, 322. 
 Mortgages. 
 
 action on by .'fheriif, 324. 
 
 ilischari;cs nf, when seized, 726. 
 
 fees, 324. 
 
 notice to mortgagor, .324. 
 
 to registrar of deeds, 323. 
 
 payment of mortg.ige iiy innchaser, .326, .3.32. 
 
 sale of c<[uity of redemption in hinds, .32,">, 331. 
 ellect of, .32,"). 
 inoitgagee may purchase at, 320. 
 
 seizure of money secured by, .323, 331. 
 
 vacating execution ag'-inst, 324, 
 
 Verification of order not needed, 324. 
 Sheriff. 
 
 instructions and intlenniity to on seizing goods clainie<l by third parties, 322, 330. 
 
 not bound to sue without security' for cost.-*, 322. 
 
INDEX. 
 
 875 
 
 3'S^ 
 
 Execution — Coufinued. 
 stock. 
 
 seizure and sale of, 319, 320, 328. * 
 
 etteet of, 320. 
 incorporated companies, what are deemed to be, 321. 
 service of copy of writ on compaiij-, 320. 
 wiiere conij)any may he served at more than one plate, 320. 
 transfer of stock invalid after notice, 320, • 
 
 Writs of Execution, 
 renewal of, 319. 
 to include lands and goodr, 319. 
 
 Executors. — See TRrsTEES AND KxECUTORS ; Devolution of Estates Act. 
 
 Executors and Administrators, Act to protect, (R.S.O. 131,) 405. 
 
 costs, right of I'etainer for, 406. 
 
 duty of administrator on discovery of will, 407. 
 
 presumption of death, protection of persons acting on, 40,'>. 
 
 when arises, 407. 
 refund of legacy uniler invalid will, 407. 
 revoked probate, payments made under, 407. 
 supposocl intestacy, protection of persons acting on, 40/5. 
 
 ExhibitSi official dociiments as, 89. 
 
 Factors. — See Goods Entrusted to Agents. 
 
 Felony, meaning of, 13. 
 
 Ferries, jurisdiction as to, 36, 55, 60. 
 
 Fisheries, legislative powers as to, 36. 53, 54, 55, 59, 62. •■ ^^x^i/C*.^yu.^<9 
 
 Foreshore in Harbors, Dominion jurisdiction as to, 55. ^*s 
 
 Forfeiture, relief against, 177. 
 
 for breach of covenant to insure, 171. 
 
 Forma, Statutory. 
 
 different claases of, 15. 
 effect of variations in, 10, 15. 
 
 Fraudulent Conveyances— See Voluntary Conveyanoe.s. 
 French. 
 
 Acts of Dominion and Quebec to be printed in, 44. 
 when may be used, 44. 
 
 Oame Acts, jurisdiction of Dominion respecting, 55. 
 
 Gender, how ex])rcssed. 
 
 Ooods entrusted to agents. Act respecting contracts in relation to (R.S.O. c, 150), 475, 
 
 English law respecting, 479. 
 
 cluinges made by Act, 480. 
 
 law before Act, 479. 
 
 object of Act, 479. 
 
 Advances to agent. 
 
 property received after, 483. 
 
 when deemed authorized, 477. 
 
 when payments deemed to be, 477. 
 Agent. 
 
 civil liability of not affected by Act, 478. 
 
 conviction of for theft cannot "l)e used as evidence against, 478. 
 
 loans to, when deemed authorized, 477. 
 
 ma/it fillet of, 477, 483. 
 
 pre8Uir.i)tioii of cntrustmeiit, 476, 482. 
 
 revocation of anthoritj' of, 483. 
 
 wlicn and to wliat o.xtejit to be deemed owner, 176. 
 
 wlien transactions by, l)ind owners, 477, 483. 
 
 who is, 481. 
 
 Antecedent debts. 
 
 do not authorize a pledge, 477. 
 what are, 483. 
 
876 
 
 INDEX, 
 
 o 
 
 7. 
 
 rr 
 
 V. 
 
 50 
 
 Goods entrusted to agents— Continued. 
 Contracts. 
 
 for lifti, wlien valid, 476. 
 
 foi- purchase, when valid, 476. 
 
 imist l)c hoint Jii/e, 477. 
 
 when considered to be made with agent, 477. 
 Document of title. 
 
 agent in possession of, deemed entrusted, 476. 
 
 meaning of 47;'), 480. 
 
 not obtained from principal, 482. 
 
 not negotiable, 483. 
 
 pledge of, eft'eet oi, 477. 
 Exchange of securities, 
 
 when valid, 483. 
 
 factor, detinitior of, 479. 
 
 goods, meaning of, 475, 480. 
 
 notice that vendor only an agent, effect of, 48"2. 
 Owner, 
 
 may redeem pledges, 478. 
 
 remedy of, again.st estate of insolvent agent, 478. 
 
 sales of pledges binding on, 482. 
 
 when agent deemed to be, 476. 
 Fledge, 
 
 antecedent debt not to authorize, 477, 483. 
 
 of document of title, effect of, 477. 
 
 power to, 482. 
 
 redemption of, 48.3. 
 by owner, 478. 
 Shipped, 
 
 meaning of, 475. 
 
 Governor-General. 
 
 .appliotion of provisions of B. N. A. Act lo, 20. 
 •in-Council, meaning of, 6. 
 
 messages to be entered in Journals of Houses, 29, 
 Powers of. 
 
 how exercised, 21. 
 
 to appoint administrator m absence of Lieutenant-Governor, 31 . 
 
 deputies, 21. 
 
 judges, .39. 
 * Lieutenant-Governors, 29. 
 
 officers under B. N. A. Act, 44. 
 
 speaker of Senate, 24. 
 assent to bills, 29. 
 dissolve House of Commons, 28. 
 divide records of provinces, 46. 
 issue writs for first elections, 26. 
 order audit of Consolidated Revenue Fund, 40. 
 recommend money bills, 28. 
 refer constitutional questions to the courts, 71. 
 remove judges, 39. 
 summon Hou.se of Commons, 35. 
 
 (•lonators, 23, 24. 
 take oaths of Lieutenant-Governors, 30. 
 
 Senators and members of House of Commons, 43. 
 transmit copies of bills to Secretary of State, 29. 
 proclamatum of, how proven in evidence, 81. 
 salary of, 40. 
 
 Grants, yearly, to provinces, 42. 
 Great Seal, meaning of, 6. 
 
 of Ontario and Quebec, 4.5. 
 
 Harbors, Public, 
 
 foreshore may Ixi part of, ■'i5. 
 
 to be property of Canada, 41, 48, 65. 
 
 water lots in, provincial legisilation respecting invalid, 53, 59. 
 
 what included by, 55. 
 
INDEX. 
 
 877 
 
 Headings, of portions of Statute, 
 
 when referred to to (loterniino meaning, l~>. 
 
 *' Her Majesty" — meaning of expression, 6. 
 wiien alfected by acts, 13. 
 
 *' Herein " — meaning of, 0, 14. 
 High Court of Justice- — Sep; Judicature Act. 
 Hire receipts- — See Conditional Sales of Chattels. 
 Holidaj'S, — wliat days are, 7. 
 
 ell'eet of provisions, respecting, 15. 
 
 HospitalS; 
 
 marine, jurisdiction over, 36, 37. 
 
 House of Commons, 
 
 certain pi'ovisions respecting to extend to Legislative a.ssemblies, 34. 
 
 constitution of, '25. 
 
 duration of, 28. 
 
 election of nienibera of, '26. 
 
 electc.ral ilistricts for, 2ii. 
 
 increase of number of members, 28. 
 
 meml)er8 to take oath of allegiance, 43. 
 
 n>onoy bills to originate in, '28. 
 
 after reconmiendation by Governor-(ieneral, 28. 
 privileges of, '22. 
 Senators not to sit in, 25. 
 summoning of. 2,'>. 
 to elect a speaker, 27. 
 vacancy in l)cforo provision made, 27. 
 
 Husband and Wife-— See Dower, Conveyances nv Married Women, Married 
 Womkn's 1'r(.i'ektv Act, Witnesses and Evidence. 
 
 Immigration, jurisdiction as to, 3!t. 
 
 Implied powers- See Powers. 
 
 Imprisonment- 
 may inchule iiard labor, 67- 
 
 to enforce (jrovincial laws — provincial powers respecting, 38, 57, 07. 
 wher(! no place H|)ecified, i). 
 
 Incorporation of Companies. See Company. 
 Indians, jurisdiction of Domion as to, .%, 56. 
 Lauds reserved for— 
 
 iJomiiiion jurisdition over, .36, .56. 
 
 recovery of moneys due in respect of, 56. 
 
 rights of Provinces to beneficial estate in, 56, 01. 
 
 Infants, 
 
 action by for penalties under Election Act, 15. 
 
 eipiitable rule as to, to prevail, 18'2. 
 
 estates of, settlement of, 173. 
 
 uHicial guardian of. See Devolution of E.states /<"*■ 
 
 Infants, Act respecting. (R. S. 0. c. los,) 279. 
 Apprenticeship of, 284. 
 
 agreements as to, 280. 
 Custody of, 
 
 order as to 
 
 jurisdiction to make, 270, '285. 
 
 not to l)e made in favour of motiier guilty of adultery, 280, 286. 
 rescinding, 2H6. 
 separation of children not allowed, 286. 
 Ouardlans of, 
 
 application l)y to Court for direction, 283, 288. 
 appointment of, 281. 
 
 l)v judges of Surrogate Courts, 282, '283, '287. 
 autiioritv of, 2H3, 284, 287, '288. 
 to act lor, 283. 
 to appear in actions, '283. 
 to bind as apprentice, ;}S4. 
 
 
878 
 
 INDEX. 
 
 o 
 
 C 
 
 < 
 
 r 
 
 r 
 5 
 
 03 
 
 i'. 
 
 Infants, Act respecting— CoH<iH«e(i. 
 Guardians of— Cnntiimeii. 
 
 to iimimge uHtate of, 284, 287. 
 mother to bo guiinlian on duatli of father, 283, 288. 
 
 when iiiny appoint guardian, 283, 288. 
 oflicial guardian. See Devolution of Estates Act, 
 removal of, 283. 
 security to !»' given by, 282. 
 Maintenance of, order for. 
 
 j\irisdietion to make, 270, 28(i. 
 
 wliere estate Hottleil for life with power of appointment in favor of eliildren, 281 , 287. 
 Real estate of : 
 
 lease of, 280, 28(;. 
 
 sale of may lie authorized, 280. 
 
 but not- contrary to devise, 280, 287. 
 application for, how made, 280. 
 consent of infant to, 280, 287. 
 deeds, how executed, 280. 
 proceeds ficuu, ajjplication of, 280. 
 
 payment of dower out of, 281, 287. 
 quality of, 281, 287. 
 settlement of, 173. 
 ratitication of piomise by, 302, 303. 
 Religious education of. 
 
 Act not to allect authority of father as to, 284, 288, 289. 
 religion of father to l)e followed, when, 289. 
 Surrogate Courts. 
 
 aiijical from onlers of, 284. 
 
 ai)p(iintmi'nt of guardians i)y judges of, 282. 
 
 wliat jiulges to act, 283. 
 powers ofi 282, 284. 
 
 as to witnesses, 284. 
 procedure in, 284. 
 WiUs of, invalid, 637. 
 Injunction. 
 
 damages in addition to or instead of, 182. 
 
 wii(;n granted on interlocutory order, 182. 
 
 wiien not granted, 179. 
 Insolvency, jurisdiction as to, 36, 56. 
 Insolvent Companies, Dominion powers as to, 56. 
 
 jjroviucial jurisdiction over, o(), ((3, 68. 
 Insolvents, assignments bj". !Seo Ashiunments nv Insolvents. 
 Instruments, written, how proved in evidence. >See Witnesses and Kvidence. 
 
 issued under an Act, meaning of expressions in, 11. 
 Insurance, ap|)lication of Ontario Act respecting, 71. 
 
 companies, power of I'rovinee to tax, (iO. 
 
 contracts of, jirovincial powers over, 63. 
 
 Intercolonial Railway. 
 
 duty ot Dominion to construct, 47. 
 Interest. (See also .Iidicathke Act. 
 
 exclusive autiu)rity of Dominion respecting, .36. 
 
 extends only to iutei'cst on debts arising out of contract, 'M. 
 on provincial public debts to be paid out of Consolidated Reveiuie Fund, 4t». 
 
 Interest, Act respecting. (60 (il Vie. (Demi.) c. 8). 312. 
 
 eijuivalent rate jicr annum to l)e stated wliere exceeds 6 per cent. .■il2. 
 interest jxtft diem, when allowed, 313. 
 rates which n\ay be (-hargr 1, 313 
 recover}- back of over |)ayments, 312, 313. 
 
 Interpretation Act, The. (R.s.t). c. i). 4. 
 ^ 2t3 to be deemed public acts, 10. 
 
 niiu'dial, Mi. 
 Afflruiative words, 
 ettoct of. I I . 
 
INDEX. 
 
 879 
 
 Interpretation Act, The—Conriinifil, 
 
 Amendment or repeal of Acts In Session when passed. S. 
 Application of Act, 5. 
 By-laws and regulations. 
 
 oHbct of power to niako, 10. 
 Citation of Acts, 4. 
 Commencement of Acts, 5, 14. 
 
 what may bo dono under the Act before, 11. 
 Corporation, 
 
 ell'eet of words eoiistitiiting, 8, 15. 
 Crown 
 
 not affected inilc.ss so declared, 13. 
 
 Date when Act assented to or reserved to be endorsed, 5. 
 Declaration that Interpretation Act'to apply, unnecessary 
 "During pleasure," 
 
 appointments by Lieutenant-Governor to be, 9. 
 
 meaning, of, 15. 
 Enacting clause, 
 
 foiin of, 4. 
 Enabling words 
 
 wben compidsory, 14. 
 
 Endorsement to be made on Acts, 5. 
 
 Felony, meaning of, 13. 
 
 Forms, 
 
 ell'eet of deviations from, 10, 15. 
 Gender, 
 
 ma.seuline to include feminine, 8. 
 Headings, 
 
 wlien may be referred to, 15. 
 Imprisonment, 
 
 wiien no place s])ceified, 9. 
 Instruments issued under an Act, 
 
 meaning of terms in, 11. 
 Judicature Act, 
 
 a])i)liiatioii of interpretation section of, 13. 
 
 Judicial construction, 
 adoption of, 13, Hi. 
 by Kuglish courts, effect, of, 10. 
 
 Jurisdiction 
 
 cannot In' given to courts by Acts rosi)ecting proce<lure, IG. 
 Justices of the Peace, implied authority of, 8. 
 "Law always speakiag, ' 5. 
 Lieutenant Governor, 
 
 may act l)y proclamation, 0. 
 
 term of ollice of person appointed by, 9, 14. 
 
 Magistrates, 
 
 implied |ii'\\er of, ,S. 
 Majority, 
 
 may do an act re(|uire(i to be done by more than two persons, 10. 
 
 Misdemeanour, meaning of, 13. 
 Municipal Act, 
 
 a])pli' ition of interpretation clause of 13. 
 
 Name commonly applied may be used, 6. 
 Number, 
 
 .singular to include i)lural, .S. 
 Numbers of sections, 
 
 are part of an Act, 14. 
 
 Oath, 
 
 administration of, 7. 
 
 ?WtS 
 
880 
 
 INDEX. 
 
 o 
 
 c 
 
 < 
 
 r 
 
 X 
 
 r 
 
 > 
 
 33 
 
 
 Interpretation Act. The— Continued. 
 Offence, 
 
 iiiiilfr repealed Act, 12. 
 
 wlieic two Acta respecting, l.S. 
 Penal statutes, 
 
 cDiiHtniction of, 15. 
 Penalties, 
 
 apiii'opriiitioii of, !(. 
 
 liow recovered where no mode ))rcsc;ril)ed, 0. 
 
 two persons nmv sue for under words " a private party," 1,'). 
 
 when recoverable by indictment, 9. 
 Preamble of Acts, 5. 
 
 eil'ect of, 16. 
 
 to he part of the Act, 10. 
 Present tense, effect of use of, 5. 
 Private acts, effect of, 13. 
 
 what are, 15. 
 Provisions of Act to apply to construction of Act Itself, 13. 
 Proviso, how construed, 14. 
 Public money. 
 
 how paid over and accounted for, 9. 
 Public officers. 
 
 appointment of Lieutenant-Governor to be during pleasiu'e, 9. 
 
 directions to to apjily to successors, 9. 
 
 imj)licd powers of, S. 
 
 words authorizing appointment of, effect of, H. 
 
 References to clauses by number to be inclusive, 10. 
 Repeal of Act, effect of. 
 
 as to acts ih)ne and offences committed, 12, 15. 
 
 not an adoption of judical construction, 12. 
 
 not a declaration that Act in force, 12. 
 
 or as to tlie previous or a different .state of law, 12, 13. 
 
 not to revive Act l)v it repealeil, 11. 
 
 on appointment and l)ond.s, 12. 
 
 on persons acting undei' it, 12. • 
 
 on rules made l)efore repeal, 12. 
 
 where other enactments sulwtituted, 11. 
 wlieii take effect, 11. 
 Reservation of power of repeal, 11. 
 Retrospective construction. 
 
 ilear words ncces.sary for, 14. 
 Revised Statutes. 
 
 how constituted, 4. 
 
 how construed, 14. 
 Rules of construction, applicatiou of when consistent with Act, 13. 
 Rules of Court. 
 
 autlioi'ity to make to include power to alter, 10. 
 
 effect of, 15. 
 Time, how computed, 7. 
 Title— is part of an Act, 14. 
 Words and terms, defined by Act. 
 
 affidavit, 7 
 
 county, 7. 
 
 duly (jualitied medical practitioner, 
 
 felony, 13. 
 
 Governor, (i. 
 
 Greai Scuil, (i 
 
 Her Majesty, G. 
 
 jicriiii, 0, 14. 
 
 holiday, 7, 15. 
 
 it shall 1)0 lawful, 14. 
 
 Justice of tlie Peace, 8. 
 
 legally ((ualified medical practitioner, 8. 
 
 Lieutenant-(<<ivernor, 0. 
 
INDEX. 
 
 881 
 
 Interpretation Act. The— ('oiiiiiniiil. 
 
 Words and terms defined by Act-''"'i'i/i"<i/. 
 Lifiilt'niuit-< iovei'iior in ('oiincil, (i. 
 Lower Cimiula, (i. 
 niagistrato, .S. 
 may, ti, 14, 
 iiiis(lt'iin.'am>ur, 13, 
 nioiitli, 7. 
 next, (i 
 now, ((. 
 oath, 7. 
 pL'i-.Mon, 7, II. 
 pi(i( laiiiatidii, fi. 
 Registrar, 8. 
 i'uIlh of Court, 10. 
 
 SCRtioll, li). 
 
 shall, fi, 14. 
 
 security, 8. 
 
 sureties, H. 
 
 The ('rowii, (i. 
 
 Tiie <i>ueeii, (i. « 
 
 two .Justices, S. 
 
 Uiiite<l Kingdom, (J. 
 
 Uniteil States, (i. 
 
 U])per Canada, (i. 
 
 writing, 7. 
 
 written, 7. 
 
 Interpretation Act, The (Dom.) H. s. (J. c l. 
 
 how dili'ers trom Ontario Aft, 1(1. 
 
 Intoxicating Liquors, sale of. 
 
 power.s of Dominion as to, ~>'2, "iH, rto, /iO. 
 of Provinces, 58, 5!), 08. 
 
 Intra Vires enactments.— See LKcsisr.ATivK FowEfis. 
 
 Joint Contractors. 
 
 Actions against representatives of, .S7li. 
 
 Journal of the House. 
 
 hotli Knglish and French to he used in, 44, 
 
 entry to he made in of Ooveruor (JeneraKs messages, '2i). 
 
 Judges. i^L'e also JUDICATURE AcT. 
 appointment of, 39, 65. 
 
 of Division Courts, 05. 
 
 of ,Su|)eri <r, District and Countj^ Courts, (15. 
 how removed, 30. 
 
 of one county may he authorized to preside in another, (m. 
 salaries af, ."JD. 
 selection of, .SO. 
 tenure of office of, in Superior Courts, 39. 
 
 Judicial construction of words in Statute. 
 
 not adopted hy re-enactment, 1.'5. 
 
 efiect of repetition in Hul)se(jucnt Act, 10. 
 
 Judgments. 
 
 declaratory, valitlity of, 178. 
 
 foreigti, how ))i'oved in evidence, 83, 07. 
 
 Judicature Act. The (Fi.s.O., c 51), 103. 
 Accountant of the Supreme Court, 210. 
 
 e.\penses of otiii'c, charge on income of funds in Court, •Jl(»'. 
 securities vestc(l in, "210. 
 
 to he taken in name of, 210. 
 Suitor's Fee Fund .Account to he kept hy, 211. 
 
 purjiose of, 21 1. 
 to 1)0 a cor|)iiration sole, 210. 
 vacancy n ollice of, provision for, 210. 
 
 V. 2 
 
882 
 
 INDEX. 
 
 
 
 C 
 < 
 
 r 
 
 03 
 30 
 
 if;* . 
 
 Judicature Act. The— Coniinned. 
 Appeals. 
 
 fniiii iiitcrlocutDry order, 18fi. 
 
 frciiii jii(lj;mciit not to he heard by judge making, 185, 
 
 oidy one to li^^ IS". 
 
 orders not Huhjeot to eonsent, 18(i. 
 
 us to costs wliieli are in the discretion of tiie Court, 180. 
 time within wliieli must he l)rought, 188, 189. 
 to t'ourt of Ai)|)eal. 
 
 fiom l)i\ isional Courts, 188. 
 when to he, 187. 
 to Divisional Com'ts. 
 when tr) lie, 187. 
 Appointment under power, validity of where one object excluded, 177. 
 Asaessors. 
 
 appointment of, 104. 
 fees of. i!)4. 
 Assignments of debts and choses in action, 181. 
 
 wiiere several elaiinants under, HI. 
 Chambers. 
 
 judge to sit in, 17o. 
 wlio to sit, 175. 
 Clerk of the Pt Toess. 
 
 ap))ointMiini of, '202. 
 to i«;ep Jiisotlice atOsgoodo Hall, "iCM. 
 to inalvc (piarterly returns, '204. 
 Commissions, issue of. 184. 
 
 of Assize, itc. Act not to ad'eft, 21(5. 
 Constitutional questions, how raised, 183. 
 
 ctfeet of part jierfornianee of, 1S2. 
 Contracts, effect of part performance of, 182. 
 
 'I ipulations in, when not of tiie essence, 181, 
 Costs, discretion of Court as to, 198. 
 
 a])|)eal from order respecting, 186. 
 County Courts. 
 
 liooks of to lie open for inspection, 217. 
 
 cases in, wlien m,av he tried in High Court, 1!)2, 21(>, 22(1, 227. 
 
 fies ill sucli eases, 193. 
 eertain Higli Court ea.ses to ho tried in, 192. 
 powers of, in such cases, 192. 
 Court of Appeal. 
 
 (•onstitution of, KiS, 160, 107, 175. 
 Divisional Courts ot, 108, 
 Judges of, nh.senee of, 109. 
 may hold assizes, 107. 
 powers of, 170. 
 
 who to preside in ahsenco of Chief .Justice, 109. 
 .Judges of Higii Court Sitting in, ItiS, 109. 
 juri.sdiction of, 175, 170. .' _ • 
 
 iiow exercised, 170. 
 
 to make any order required, 170. • _ 
 
 to (piasli ))rocee<lings, 170. ' fii'' "'■'' 
 
 quorum of, l(i7. I?""""' '•- 
 
 ma\' lio made up by .Judges of the Higli'Court, 108. 
 seal of, 1 70. 
 
 single Judge of, |i,j,\'ers of, 170. 
 sittings of, 100, 183. 
 Criminal matters. 
 
 Act not to affect procedure in, 217. 
 Decisions, Judicial. 
 
 Nee also Intekpretatio.x Act. 
 
 eftect of, 189. 
 
 of Court of Co ordinate Jurisdiction, 189. 
 
 of Divisional Court, 189. 
 
INDEX. 
 
 883 
 
 Judicature Act, The Cmitiuurd. 
 Deputy Clerks of the Crown. 
 
 !l|l|l(lillt IllCIlt (if, 'J<l.~>. 
 fl'ON of, 'id.-). 
 
 I'Diiiiiiutatioii of, 'JO.*!. 
 
 wlioii iiiiiv lie rt'taiiied, 20(}, 
 ortici' hours of, 20"). 
 otfict's of, whore to ho kept, 207. 
 sularifs of, 2(((i. 
 Heals of, 2(1". 
 who to he, 205. 
 
 Deputy Registrars. 
 
 a|)|)iiiiitm('iit of, 20.5. 
 
 fees of, may lie (•oiiiiinite(1,20i). 
 when may he retained, 2<Mi. 
 
 otfiee hours (jf, 2(l.">. 
 
 otiiees of, where to be kept, 207. 
 
 who to he, 20"). 
 
 seals of, 207. 
 Divisional Courts. 
 
 liusinrss of, 1H4. 
 
 constitution of, KiS. 
 
 tleeision of, e(lc<'t of, IS!). 
 
 how eomposed, 185. 
 
 jurisdiction of, 1S4, IS."). 
 
 sittinj^s of, IS"), 
 Divisions of High Court abolished. 
 Equitable defences, 178. 
 
 jmisdictidii of Hi|,di Court, 177. 
 
 relief whicli may he 1,'ranted to defendants, 170. 
 
 rights and duties to In taken notice of, 170. 
 
 rules t<i prevail in conllict, IH.S. 
 Equitable waste, right to commit, when conferred, 180. 
 Fees, 
 
 of |iid)lic oliicers suhpicnaed as witne.s.sea, 198. 
 
 on ])r(ieeedings in Couit of Appeal, 215. 
 High Court, 2li5. 
 writs and process, 21.5. 
 
 returns of, 207. 
 
 when may he retained I)v oHieers, 206, 215. 
 
 when III lie pai<l in stamjis, 204. 
 
 High Court of Justice, 
 
 books of to h(^ (i])en for inspection, 217. 
 
 eases in, when may he tried in County Court, 102. 
 
 constitution of, 105, KiO. 
 
 County Couit eases, when may he trieil in, 192. 
 
 divisions of abolished, 185. 
 
 judges of. — See .Judges. 
 
 jurisdiction of, 170,-174, 218. 
 
 e(juitalile, 170 171, 177. 
 
 generally, 173. 
 
 in alimony, 172. 
 
 in partition, 172. 
 
 in revenue matters, 171. 
 
 respeiting validity of I'rovincial act, 177. 
 
 to enable nifants to make .settlements, 17.3. 
 
 to grant vesting oi'der, 172. 
 
 to relieve against ])enalties and forfeitiu'c, 171, 177. 
 
 to remove executor or administrator, 173. 
 
 to try validity of wills, 173. 
 
 where no adecjuate remedy at law, 171. 
 
 how e.veicised, 175. 
 sittings of, >83, 185, ISO, 100. 
 otheiaT guai-dian of. Se(! Ottieial (luardian. 
 Infants— rules of Equity regarding to prevail, 182. 
 
V 
 
 .^O'J 
 
 ^V. - .o. 
 
 IMAGE EVALUATION 
 TEST TAkGET (MT-3) 
 
 
 
 LO 
 
 III 
 
 1.25 
 
 
 M 
 
 2.2 
 
 I.I l^ IIIIIM 
 
 1.8 
 
 U ill 1.6 
 
 VJ 
 
 <^ 
 
 <0 
 
 7: 
 
 
 
 V 
 ^ 
 
 .> 
 
 /(S 
 
 Photographic 
 
 Sdences 
 
 Corporation 
 
 33 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 872-4503 
 
 
 > 
 
 % 
 
 V 
 
 "<b 
 
 Vf 
 
884 
 
 INDEX. 
 
 O 
 ?0 
 
 "Z 
 
 u 
 
 CD 
 
 > 
 •33 
 
 Judicatiire Act, The— Continued. 
 
 Injunction, 
 
 w licii damagea may lie granted instead of or in addition to, 182. 
 wlic'ii gniiitod l)y interlocutory order, 182. 
 wliL'ii not to 1)0 grantf'd, 170. 
 Inspector of Legal offices, 
 a])i)()iiitiiieiit of, 211. 
 hook.s to 1)0 jjroduced to, 212. 
 dutioK of, 211. 
 
 in((uirii'.s to ho niiide l)y, 212. 
 stamps, powers as to. 212. 
 Interest, 
 
 when allowed, 107. 
 
 hy way of damages, 1!(7. 
 
 on dehts eertain and overdue, 107. 
 on judgment;-, 107. 
 Tnterpretation section, 164. 
 
 application of, 13. 
 Judges, 
 
 absence of, provision for, 167, 101. 
 appointment of, 30, ().5. 
 
 detachment of from Chancery Division, 16(5. 
 in chamhers, 17,">. 
 
 who to sit, i7o. 
 Local -County l^ourt .Tudgcs to he, 216. 
 
 nuniher of, 166. 
 
 oath of 160, 170. 
 
 of Court of Ai)iieal. See Court of Appeal. 
 
 of one county presiding in another, 65. 
 
 powers of, 16.">, 174. 
 as to juries, 106. 
 
 pi'cccdence of, 1()7. 
 
 privileges of, 17-1. 
 
 (jualitication of, 165. 
 
 removal of, .'?0. 
 
 resignation of after hearing case, 166. 
 
 salaries of, 30. 
 
 tenure of ofliee of, 30. 
 
 to make arrangements for transaction of business, 186. 
 
 transfer of, 16(). 
 Judgments, declaratory, validity of, 178. 
 foreign, |)leadingH in, 107. 
 in (,>uchec, actions on, 107. 
 
 Jury, , . 
 
 agreement of ten jurors to be sulheient, 195. 
 certain cases to he tried with, 104, 
 
 without, 100. 
 death of member of, cH'ect of, 106 
 notice re(|uiring, eti'ect of, 105. 
 waive' of, 105. 
 when to bo given, 195. 
 po^Cers of judge as to, 106. 
 
 verdict of, elleet of when given hy ten jurors, 106. 
 special when may be directed, 106. 
 when (]uestions may be directed to he answered, 107. 
 legal claims to b(? given eU'ecit to, 1S((. 
 Limitations, Statutes of not to apply to express trusts, 180, 381, 391', 663, 677, 68'J. 
 Lis pendens, 
 
 form of, 103 
 
 must he registered to constitute notice, 19,S. 
 not necessary ni mortgage actions, 103. 
 order vacating — gimcrally 104. 
 
 upon Tion])rosccution of action, 103. 
 where claim not limited to lands, 10.3. 
 appeal from, 104, 
 coats of, 104. 
 
 
INDEX. 
 
 885 
 
 677, 68'J. 
 
 Judicature Act, The —OoiiHhiu'jI. 
 Lis pendens— f'ii"'''"«''t'. 
 olTcft of, 194. 
 legist i-y of, 104. 
 Local JudgPd, 
 
 Judges of (Jounly Courts to be, 216. 
 Local Master, 
 
 aT)|)oiiitiiieiit of, -204, 'itl.'), 
 feea of, may lie eoininuted, "JO."), 
 when may be retaiiieil, '206. 
 in case of vaeaiiey, "204. 
 not to piaelice in certain eases, 206. 
 to reside in iiis count}', 204. 
 
 unless lelieved from doing so, 206. 
 'la.: • '" Cf '.""He, 
 
 -: unty of York, 207. 
 re.il I. loratiop of, 207. 
 
 not to receive fees in criminal cases, 207. 
 Master in-Ordinar:-, references to, 198. 
 Merger, by operation o; law, 180. 
 Mortgage actions, 181. 
 Non-Jury actions, entry of for trial, 191. 
 Officers. Sue also I'rni.ic (^i-kickks. 
 
 appointment of by Lieutenant-Governor, 202. 
 
 distribution of business among, 203. 
 
 oath of, 203. 
 
 oflicial names of may bo changed by Lieutenant-Governor, 202. 
 
 to give security, 203. 
 
 effect of neglecting to, 203. 
 Official Guardian ml iiii'm. Sec also Act Respecting Infants. 
 
 account of, return of to be made to Lieutenant-Governor, 209. 
 appointment of, 208. 
 costs of, 20S. 
 
 of solicitors emph)ved by, 209. 
 return of 1)V, 209. ' 
 duties of, 208. 
 
 practising, may be debarred from, 209. 
 salary of, 208. 
 
 transfer on appointment of, 209. 
 Official referees. 
 
 appointment of, 204. 
 \vh(j to be, 204. 
 Orders-in-Council, when to be ratified by Legislature, 216. 
 Osgoo:le Hall, certain offices to be kept at, 204. 
 Fart performance, satisfaction of obligation by, 182. 
 Penalties, Jurisdiction as to, 171, 177. 
 Prisons of the High Court, what are, 214. 
 Proceedings. 
 
 muili])li(itv of, to be avoided, 180. 
 restraint of, 179. 
 stay of, when granted, 179. 
 
 to be disposed of by one .Judge when ijossible, 184. 
 Purchaser, not affected by irregularities in Orders of the Court, 182. 
 Restraint of proceedings, powers as to, 179. 
 . Rules of Court. 
 
 council for consideration of, 201. ^ 
 
 Court of Appeal, .Judges of may make, 200. 
 
 eflectof, 20(1, 201. 
 
 for District Courts, 201. 
 
 former rules continiied where not inconsistent, 201. 
 
 Judges of High Coiwt may make, 2(M). 
 
 Lieutenant-Governor may authorize judges to make, 200. 
 
 Siipreme Court mav make, 198. 
 
 validity of, 201. 
 
 what may be regulated by, 198, 199, 200. 
 
886 
 
 INDEX. 
 
 O 
 
 c 
 
 < 
 
 r 
 
 V 
 
 r 
 
 I 
 
 
 Judicature Act> The— Coji^»i«ed. 
 
 Rules of Law, 177. 
 
 to apply to all courts, IS.*}. 
 Salaries payable out of the Consolidated Revenue Fund, 214. 
 Seals of Court of Appeal and High Court, 170. 
 Sheriff, to be an officer of the Court, 214. 
 Short Title of Act, 163. 
 Sittings of Courts, 183, 189, 190. 
 
 geiioral docket at, 11)1. 
 
 ho\ii-s for, litl. 
 
 non-jury actions, when maybe entered for trial at, 191. 
 
 number of, 1S9, 19(). 
 
 place where to be held, 190. 
 
 proceedings where judge absent, 191. 
 
 who to preside at, 191. 
 Special Examiners. 
 
 appointment of, 21.3. 
 ;/ro fern., 214. 
 
 examinations to be taken in presence of, 214. 
 
 fees of, 21.3, 214. 
 
 not to solicit examinations, 214. 
 
 number of, 21.3. 
 Stay of proceedings, when granted, 179. 
 Stenographers. 
 
 appointment of, 212. 
 
 duties of, 212. 
 
 moneys received by, how applied, 213. , 
 
 Supreme Court of Judicature, constitution of, 165. 
 Term, a.bolition of, 183. 
 Vacations, ."v. 
 
 Witness Fees of public officers, 198. 
 Jurisdiction. 
 
 of courts. 
 
 County Courts. Sen County Courts Act. 
 Court of Appeal. See Judicature Act. 
 High Court. See Judicature Act. 
 how given, I'i. 
 
 provincial, powers as to, 65, 71. 
 Supreme Court of Ontario. See Act respecting. 
 Vice Admiralty, 50. 
 of Legislatures of Dominion and Provinces. Sec Legislative Powers, 
 of Senate. 
 
 does not extend to alimofty, 54. 
 Jurors. See also Judicature Act. 
 legislative powers as to, 65. 
 Justices of the Peace.— Act to protect from vexatious actions (R.S.O. c. 88), 121. 
 Actions against. 
 
 costs in, 126, 1.32. 
 damages in. 
 
 nominal, 126, 1.32. 
 where tender of amends made, 126. 
 Limitation of, 124. 
 
 Malice asd want of reasonable and probable cause in 
 what constitutes, 128, 129. 
 
 when must be alleged and proved, 121. , 
 
 when not necessary, 122. 
 
 Not to lie * 
 
 for anything done under warrant to compel appearance if summon.s disobeyed, 122. 
 for acts done utider order of High or County Court Jiidgo, 122. 
 
 statute held ultra vires, 12.3. 
 
 when conviction affirmed on appeal, 123. 
 for certain mistakes as to jurisdiction, 127. 
 for obedience to writ of mandamus, 126. 
 until conviction tjuashed, 122, 129. 
 
 notice of action given, 124. 
 
INDEX. 
 
 S87 
 
 Justices of the "Peace— Contimced. 
 
 Not to be brought in County or Division Court if Justice objects, 125. 232. 
 Notice of action in, 124, 129. 
 
 defoct ill not cured liy teiidfr of amends, LSI. 
 
 form of, 130. 
 
 is a condition precedent to the right to .sue, 130. 
 
 service of, 131. 
 
 time witliiii whicli must be given, 124, 131. 
 
 to whom to be given, 129. 
 
 want of must be raised by statement of defence, 130. 
 
 what must be stateil in, 131. 
 
 when not necessary, 130. 
 
 PajTnent into court, 124, 131. 
 
 Plea of not guilty by statute, 125, 131. 
 
 Tender of amends, 125, 131. 
 
 What plaintiff must prove to succeed, 125. 
 
 conviction, (luasbing of, before action lies, 122, 129. 
 
 protection of justice liy order, 124. 
 
 wlien not necessary, 129. 
 
 Conviction under warrant by anotter Justice, who liable for defects in, 122, 
 Defects In form not to deprive Justice ^f protection, 123. 
 Description of offence— omission of from information, 124. 
 Jurisdiction of officer 
 
 act not a trespass if justice w'thin, 128. 
 
 action not to lie for certain mistakes as to, 126. 
 
 acts done in excess of, liablity for 129. 
 
 excess of, what is, 128, 129. 
 
 how given, 128. 
 Jurisdiction to appoint Jastices, 60, 61, 65. 
 Meaning of expression "Justice of the peace," 8. 
 Persons held to be within the act, 128. • 
 
 Land Titles Offices. 
 
 proof of instruments filed in, 89. 
 Landlord and Tenants* Act (R.S.O. c. 70), 806. See also Overhot.diko Tenants' Act. 
 Annuities, definition of, 807. 
 
 apportioniiicnt of, 807, 823. 
 Apportionment. 
 
 of condition of re-eiitrj-, 808, 823. 
 of rent and other periodical payments, 807, 822. 
 money payable under policy of assurance, 808. 
 part apportioned, 
 
 how recoverable, 807. 
 when payable, 807. 
 rent to be deemed to accrue from day to day, 807. 
 Assignment for benefit of creditors. 
 
 assignee may retain possesion for balance of term, 817. 
 preferential lien for rent on, 817. 
 Assignment of lease. 
 
 leave for, liow granted where lessor under disability, 809. 
 Distress. 
 
 attachment of rent suspends right of, 829. 
 exemptiiuis from, 81.'), 828. 
 goods exempt from execution, 815. 
 not propertv of tenant, 815. 
 of lodgers, 818, 830. 
 seizure of, 816, 819. 
 lodger, declaration by, 818, 819, 830. 
 payment to landlord by, 819. 
 penalty for seizure of goods of, 819. 
 tenant, meaning of in this section, 816, 829. 
 must surrender possession, 816. 
 sale of growing crops, 818, 829. 
 liaoility of purchaser of, 818. 
 
888* 
 
 INDKX. 
 
 O 
 
 < 
 
 r 
 
 03 
 
 > 
 53 
 
 Landlord and Tenants' Act Continmd. 
 Dividends, definition of, 807. 
 Ejectment. 
 
 duty iif tenant to give notice of writ of, 812, 828. 
 where half year's rent in arrciir, 812, 828. 
 
 (li'«(iiitinuan,c on ti'iiant jiaying arrears and co.stK, 813. 
 mortgagee of lease, riglits of, 81.'1. 
 l)riieeedings where tenant seeks eiinital)le relief, 81.'^. 
 rigiit of landlord to re-enter, 812. 
 how exercised, 812. 
 wiiere lease ileterniined and tenant rofnses to go ont, 811. 
 security liy tenant, 811, 828. 
 
 limitation of action on, 81o. 
 or<ler for, 814. 
 
 jndgment on, 814. 
 where landlord may require, 814. 
 
 Forfeiture of lease 
 
 ajiplication of sections as to, 810. 
 lease i-.ntil hreaeli, effect of, 810. 
 notice of breach, 825. 
 relief against, 171, 8()<), 825. 
 restrictions on, 80i», 823. 
 waiver of. 824. 
 
 History of legislation respecting, 820. 
 
 License to do act forbidden under condition in lease, effect of, 810 826. 
 
 Notice to quit. 
 
 length of, 812, 82". 
 
 Re-entry- 
 apportionment of condition of, 808, 823. 
 forfeiture of lease l)y, 807, 82.3. 
 
 Relation of landlord and tenant. 
 
 not to depend on tentire, 807, 823. 
 Rents. 
 
 apportionment of, 807. 
 
 meaning of, 807. 821. 
 rent charge, 822. 
 seek, 822. 
 .service, 822. 
 
 set off by tenant against, 817, 829* 
 
 to accrue from day to day, 807. 
 Reversion, 
 
 merger or surren<ler of, effect of, 808, 823. 
 
 not necessary for creation of relation of landlord, 807, 822. 
 Right of re entry, 
 
 apportionment of, 808. 
 
 demand for rent, 818. 
 
 upheld, SO!). 
 snort title of ac^, 806- 
 
 Taxes, covenant to pay, not to include local Improvements, 812, 827. 
 Waiver of covenant, 
 
 not to extend beyond the particular instance, 811. 
 Writ, 
 
 duty of tenant to notify landlord of service of, 812, 828. 
 
 Law and Transfer of Property— Act respecting (R.S.O. e. 119), 575. 
 Assignment to assignor and another, effect of, 685, 693. 
 Auctions, 682, 591. 
 
 "auctioneer," meaning of, 582. 
 
 " puft'or," meaning of, .'>83. 
 
 reserved — seller may bid at, 583. 
 
 seller not to purchase at, 563. 
 
 uinrservei 
 
 l- 
 
 seller not to bid at, 583. 
 when deemed to be, 583. 
 
tiito, .")S4, oSS. .-)!)1. 
 
 INDKX. 
 
 Law and Transfer of Property~Co/i<(«tterf. 
 Bargain and Sale, 
 
 pdwor of coi'lxil'iU ioii.s to usi;, ."iT^, 590. 
 
 r(.'j,'islriitii)ii of not ncci'ss.iry, "S, ."'III. 
 Concealment of deeds, and falsiacation of peligrees. 
 
 liability for, .-)S(5, j'Kt. 
 Contingent ictereats, 
 
 not to !»■ defeated by determination of |>i'eeodin 
 Conveyance of land, 
 
 \\liat (oiisti'iied to iii(.-lii<le, .")7S, TiSi). , 
 
 Corporeal hereditf^mentr. to lie in grant, 576. 587. 
 Covenants to be implied, S80, 590. 
 
 how enforced, iWl. 
 
 joint iind .several,. o!)l I. 
 
 on eonveyanees hy direction of beneficial owner, .hSl. 
 liy trustee, oSl. v-i.^.i, 
 
 for value 1)V lienetieial owner, 380,390. 
 , value liy lienetieial owner, oSO. 
 
 run with the land, .">90. 
 
 variation of, .")81, oiHi. 
 
 wiu're not implied, oSI. 
 Debentures of corporations, 
 
 to lie assii^naiile, ."iS."), ,"i9I?. • 
 
 Deed -What may be disposed of by, 577, 588. 
 
 when necessary 
 
 a.ssigninent of chattel interest in law, 577. 
 e.xehange of lands, 577. 
 feofl'nient.s, 57(i. 
 leases, 377, 5SS. 
 partition, 577. 
 
 surrender of certain interests in land, 577. 
 Improvements under mistake of title, 584, 592. 
 
 costs, 5S4, 5S5. 
 
 from unskilful survey, 584, 592. 
 
 lien on lands for, 584. 
 Interpretation, 576. 
 Payment into court, 579, 590. 
 Powers. 
 
 ,See also Powers of Appointment. 
 
 e.xocution of, 381, .")90. 
 
 payment to tenant for life, effect of, 582, 591. 
 
 release of, 582, 591. 
 Purchaser, 
 
 rights of as to execution of deed, .577, 588. 
 Purchaser of value without notice, 
 
 not necessary to jii'ove payment, 585, 593. 
 Purchases of reversions, 585, 592. 
 
 not to be set aside for undervalue, 585. 
 
 onus of jiroving undervalue on person seeking to set aside, 586. 
 Receipt in deed suiflcient, 577, 578, 
 Rent-charge 
 
 release of part of land sulijeet to, effect of, 583, 591. 
 Sales freed from incumbrances, 579, 590. 
 Scintilla Juris 
 
 no longer necessary to support future and contingent uses, 583, 691. 
 Tenancy in common, 
 
 [iresumption in favor of, 678, 589. 
 Warranty, 
 
 not to be implied from words "granted " or " exchange," 577, 389. 
 Words of limitation, 
 
 effect of conveyance without, 576. 
 
 unnecessary, 57(5, 587. 
 
 889 
 
890 
 
 INDEX. 
 
 o 
 
 C 
 t 
 
 03 
 30 
 
 > 
 
 < 
 
 Laws of England, 
 
 liow fur ill force in Canada, 50. 
 
 in force in I'lxtvinces at Union continued, 44. 
 
 Leases. Hee also Lanklohu and Tknant Act. 
 
 covenants to insure in, relief against forfeiture for l>reacli of. 171. 
 
 registration of, 712, 
 
 to lie \)\ deed, .")77, 388. 
 
 Legislative Powers. 
 
 Powers of Legislative Bodies in Canada generally, 
 concurrent powers over— ^ 
 
 agriculture, 39. 
 
 immigration, 3!). 
 effect of conflicting enactment.s, 31. 
 
 " exclusive." not to limit authority of Imperial Parliament, 50. 
 not delegates of Imperial Parliament, 51. 
 over persons outside the Dominion, 50. 
 to punish crimes committed outside the Dominion, 50. 
 to repeal Acts of the Province of Canada, 44, 72. 
 
 Of the Dominion. : 
 
 classes of, 51. 
 enumerated, .35. 
 
 enumerated powers exclusive, 57. 
 incidental, how far extend, 54. 
 Subjects over which Dominion has Dowers — • 
 bankruptcy and insolvency, .S6, 56. 
 banks and banking, 36, 55. 
 copyrights, 30, 56. 
 
 criminal law and procedure, 36, 56, 57. 
 educational matters, 38, 69. 
 fisheries, 36, 53, 54, 55. 
 game acts, 55. 
 harbors, 41, 48, 55. 
 Indians ancl Indian lands, 36, 56. 
 interest, 36, .55. 
 issuing of paper money, 36, 55. 
 licenses generally, 55. 
 
 for butchers, 55. 
 
 sale of li([Uors, 55. 
 marriage and divorce, 35, 56. 
 
 matters relating to the peace, order and good government of Cai^ada, 35, 51, 
 navigation and shipping, 36, 53, 55. 
 police regulations, 55. 
 railways. 38, 69. 
 taxation, .55. 
 to appoint judges, 36, 65. ' 
 
 (lispense with a jury, 65. 
 
 provide for uniformity of law.s, 39. 
 
 regulate trade and commerce, 35, 54. 
 Enactments of the Dominion held intra vires respecting — 
 actions against railway companies, 53. 
 banks and banking, 52. 
 bigamy, 50. 
 criminal law, 52. 
 criminal proceedure, 52. 
 elections, 52. 
 evidence, .52. 
 fisheries, 53. 
 
 incorporation of companies, 52. 
 insolvency, 52. 
 railways, 53, 69. 
 sale of liquor, 52. 
 
 works constructed over navigable waters, 53. 
 penalties for bribery at Dominion elections, 52. 
 trial of Dominion election petitions, 52. 
 
INDEX. 
 
 891 
 
 iida, :)5, 51. 
 
 Legislative Powers— CoH/;««ed, 
 
 Of the Dominion — Continiud, 
 
 Enactments lieUl iiKni rti-en of the Dominion respecting — 
 crimes connnitted beyond the jurisdiction, 50. 
 fisheries, 53, 54, 55. 
 liquor licenses, 53. 
 prohibition, 53. 
 provincial companies, 53, 
 repeal of Temperance Act, 1864. 
 
 Oy the Prorincci: 
 
 enumerated, 30. 
 
 over companies, incorporation of, 37, 55, 62. 
 
 wimJiiig up of, 03. 
 
 education, 03. 
 
 Justices of the Peace, 61. 
 
 licenses generally, 62. 
 brewers, 02. 
 butcliers, 00, 62. 
 for retail sale of intoxicating liquors, 02, 
 
 local and private matters in the Province, 38, 51, 57, 61, 07. 
 when conflicting Dominion Act is valid, 51. 
 
 local works, 37, 02. 
 
 municipal institutions, 61, 
 
 navigable rivers, 55. 
 
 nuisances, 68. 
 
 police magistrates, appointment of, 61, 68. 
 
 prohibition, 58, 59, 68, 
 
 property and civil rights, 37, 63, 
 nfringed as to — 
 
 bankruptcy and insolvency, 63. 
 
 criminal law, 63. > 
 
 trade an'l commerce, 63. 
 cases, 64. 
 public lands, 01. 
 
 Queen's Counsel, appointment of, 69, 
 railways, 38, 09. 
 
 solemnization of marriage, 37, 03. 
 taxation, 55, 59, 00, 68. 
 tenure of Provincial offices, 60. 
 trials of contra verted election petitions, 59, 
 to define Provincial powers and privileges, 59. 
 
 " the officers of tiie Crown to be represented in Courts, 59. 
 
 impose punishment to enforce Provincial laws, 38, 57, 67. 
 
 " " to protect members of the Legislative Assembly, 59, 69. 
 
 relieve members from civil liability for acts done in the House, 59. 
 Intra vires, Provincial enactments respecting — 
 
 absentees, proceedings against, 60, 
 
 administration of justice, 65. 
 
 amendments of the constitution, 59. 
 
 appeals to Supreme Court, 00. 
 
 arrangements between railway companies and their creditors, 64. 
 
 assignments for the benefit of creditors, 64, 65. 
 
 bankruptcy and insolvency, 64. 
 
 bills of lading, rights of action under, 64. 
 sale, 05. 
 
 Canada Temperance Act, 68. 
 
 Courts, 65 
 
 criminal law, 57, 04, 6 
 proceeding, 06. 
 
 debts contracted under a local Act, 04. 
 
 delegation of judical powers, 66. 
 
 distribution of railway estate before time provided by will, 64, 
 
 Division Courts, 65. 
 
 election petitions, 66. 
 
 execution from Provincial Courts, 66. 
 
 extension of town limits into navigable waters, 55. 
 
 fraud in sale of milk, 64. 
 
802 
 
 INDEX. 
 
 o 
 
 C 
 
 mm" 
 
 < 
 
 r 
 
 i 
 
 03 
 
 > 
 
 Legislative Powers Ciniiiini .1. 
 
 Of the Promicm — Coiiliiiiied. 
 
 intra cfVfv, Provincial enact incuts rcHpecting — C'uiiliiiiiul. 
 giKil limits, (i(i. 
 liiihtfiH ('orjnity (U). 
 
 inipi.sitioii nf )iiniisliriK'nl to cnfovco provincial laws, (»7. 
 iniprisonnicnt t'orilcbt, (id. 
 inciJiporation of companies, •>'>, 0*2. 
 insiiiiiiui', ■()!{. (14. 
 
 iMtcrfi Tcnce with nuMnlii'iH of the Legislative .Asseml)ly, (ii). 
 investigation of tiies, (54. 
 jndges, (ii). 
 
 judgment debtori., (id. 
 jurors, 65. 
 
 justices of the peace, (il, (i.5. 
 lands dedicated to the eity^of Toronto, ()4. 
 
 i)wneishi]» of, (io. 
 
 public, 61, 
 licenses, 62. 
 local works, ()2. 
 municipal institutions, 61. 
 nuisances, (iS 
 
 police magistrates, (ii, 6(i, OS. 
 procedure in civil nuitters, (iO. 
 prohibition of retail sale of licpior, 08, 
 projjcrty and civil rights, (53. 
 qualifications for professions, 04. 
 (Queen's counsel, 63, 69. 
 railways, OS). 
 
 when inajjplicable thiough intra rirtx, 69. 
 relief of an emliarrussed society, 08. 
 sale of liquors, poisons, etc., 64. 
 
 separate schools, when not afl'ecting schools existing at the Union, 
 solenniization of mari'iage, (5.3. 
 subsid>' to promote a railway, 08. 
 taxation, direct, within province, 59, 00, 68. 
 
 of ferries, 55. 
 tenure of provincial offices, 60. 
 tolls, revocation of right to, (i4. 
 trade and commerce, (i3. 
 witnesses, punishment of, 64 (but sec 66). 
 workmen's compensation, 64. 
 Provincial enactments heUl ultra riiex: 
 
 principles governing decisions, 57. 
 enactments respecting — 
 
 bankrujjtcy and insolvency, 58. 
 
 coi'porations, 58. 
 
 criminal law, 58. 
 fisheries, 59. 
 intoxicating liquors, 58. 
 public liarbors, 55, 59. 
 railways, 58. 
 
 repeal of Act of Province of Canada, 7'2. 
 Supreme Court, 58. 
 taxation, 58. 
 
 Libel and Slander. See Def.vjiation. 
 Licenses, 
 
 jurisdiction as to 
 
 brewer's, 62. 
 
 butcher's, 55, 60, 62. 
 
 fisliery, 02. 
 
 for sale of liqtiora, 53, 55, 02. 
 
 imposed by municipalities, ()2. 
 
 in provinces as a matter of jjolice regulation, 63. 
 
 limiting the number of, 62. 
 
 prescribing ({ualifications for, (52. 
 
 when in reality indirect taxation, 62.' 
 power to grant includes right to impose penalties, 62. 
 
IN'PEX. 
 
 898 
 
 70. 
 
 Lieutenant Oovernor, 
 
 adtiiiriistiiitiori in nUatmco r>f, 31. 
 
 application of provinioiis of 15.N.A. Act referring to. .3(1. 
 
 appointment of, "iO. 
 
 cxecutivo oHioLUH liy in Ontario and (Quebec, 45. 
 dissolution of (^(^gislativu As.seniblies by, 34. 
 bow far loproHonts crown, "2. 
 how powuis vusted in to bo uxerciHed, .10. 
 
 exception an to jui'isdiction of ])rovinco to amend its constitution, 37. 
 may u\ithorizo judj^es to make rules, "iOO. 
 
 may issue proclamation aftiu' the Union under the authority of Act before Union, 46. 
 may refer constitutional (luestions to the courts, 71. 
 meaning of term, (i. 
 oath of allegiance of members of Legislative ('ouncil anil .Assembly 
 
 to be taken before, 43. 
 oaths to be taken l)y, 30. 
 of (,>U(;bec, constitutioii of townships by, 46. 
 orders in council of to be ratified l)y legislatun;, 21(). 
 parrloning power may be delegated to, ()7. 
 ])roclamation of, how issued, (i. 
 removal from otHce of, 2!). 
 salary, 30. 
 temu'e of otKce, 29. 
 to appoint executive councils in Ontario and (Quebec, 30. 
 
 masters, accountant and taxing officers, 202. 
 
 Registrar of Court of Appeal, 202. 
 to a))point and remove speakei- of Legislative Assembly of Quebec, 32. 
 to issue writs foi' first elections, 34. 
 to summon Legislative Assembly of Province, 33. 
 vacancies in Legislative Council of Quebec to be tilled by, 32. 
 
 Limitation of Actions. See also Act Respkctinc Writtkn PuoMisiis vno Acknow- 
 
 I.KDIIMUNTS OK LlAllILITY AND ReAL I'KOI'KUTV LIMITATIONS Af'T. 
 
 against justices of the peace, 124, 131. 
 
 trustees, \'M, .3H2. 
 by executors, 37.">. 
 
 for com|)ensation for injuries, 137, 144, 152. 
 for news|)aper libel, 113, 117. 
 relating to real i)roperty.— See Real Property Limitations Act. 
 
 Limitations of Actions, Act respecting R.S.O. c. 72, 294. 
 
 for 
 
 escape, 294. 
 
 legacy, 298. 
 
 money levied under execution, 294. 
 
 penalties, 294. 
 
 rent u|)on a demise, 294, 297. 
 
 share on intestacy, 296, 298. 
 of account between nierehants, 293, 297. 
 
 awards, 294. 
 
 eoven.Tuts in mortgages, 295, 297. 
 recognizances, 294. 
 specialties, 294, 297. 
 
 where time specially limited by statute, 293. 
 disability of plaintiff, effect of on. 295, 296, 297. 
 joint-debtors, some within Ontario and some not, 295. 
 Non-resident defendant, 295, 297. 
 
 plaintiff, 295. 
 Part payment, effect of, 296, 297. 
 Written acknowledgment, 
 
 (See also ^VltITTE^' Acknowlicdcmknts ok Liaiiilitv. ) 
 effect of, 296, 297. 
 
 when required to take case out of statute, 301. 
 Limited Partnerships. Sec also Recjistisation ok Cii-PARTNi;ii«Hirs. 
 
 Act res|)ecting, 484. 
 
 business within, 488. 
 object of, 488. 
 
894 
 
 INDEX. 
 
 Limited Partnerships— CoM<»nHerf. 
 
 (lissiillltiull 
 
 l)y iilti'i-atidii. 
 
 4S.-), 
 
 o 
 
 20 
 
 c 
 
 < 
 
 
 03 
 
 > 
 33 
 
 notice) of to 1»" filed, 4S7. 
 Certificate of contlnance partnership, 485, 
 (■ontcntM of, -tH4. 
 fees for filiiii.', 4.S">. 
 form of, tH.V, 4M7. 
 
 iiHist 1><' liliMJ liefore ])annerHhip deemed to be formed, 485. 
 wiieie to )ir tiled. 
 Certificate of continuance of partnersWp, 485. 
 Oeneral partnern, 484. 
 
 etlect of liecoiiiiiig, 4H!). 
 liability of, 484. 
 
 to account, 4S(i. 
 to uction.s, 48(). 
 to ti'aiisact Imsiiicss, 484. 
 Name or partnership, 486. 
 Power to form limited partnerships, 484. 
 Requisites of. 488. 
 Special partners, 484. 
 
 e;editor.s preferred to, 480. 
 lial)ility of, 484. 
 
 by intenneddling, 48!). 
 to refund, 48t). 
 payment by niu.'<t l)e in cash, 488. 
 privileycH of, 48(5. 
 representation.s by, 489. 
 restrictions ujxjn slook of, 486. 
 rights of iuli r sr, 489. 
 
 ahoidd not sell at a ])ro(it to partnership, 489. 
 Lis pendens.— i^ce Jidicatckk Act. 
 Local WOrks^urisdiction of provinces as to, 37. 
 
 Locke King's Act, t)4-2, (i.-)8. 
 
 Lord Campbell's Act (K.S.O. o. Kiti), 154. 
 
 See also Tuu.stkks .\ni) KxKotiTous, Woukmen's Coimi'knsation for Injueibs. 
 actions for death caused by wrongful act or default, 154, 156. 
 defcTices to, lot), 
 by duel, 155. 
 for whose benefit to be, 1.56. 
 in whose name to be brought, 154. 
 limitation of, 155, 157, KiO. 
 new (iause of action given by Act, l.'iti. 
 only one to lie for the same cau.se, 155, 160. . 
 particulars to bo set out by plaintiff, 155, 160. 
 
 where not brought by execut rs within six months may be brought by persons 
 beneficially interested, 155. 
 Child, meaning of, 164. 
 Damages, 
 
 actual damage nece""- ._, , i57. 
 amount of. '■, .. nxed, 154, 157. 
 appo. tionment of, 154, 155, 156, 100. 
 funeral expenses not allowed, 157. 
 how divided, 154, 1,">5, l.W. 
 insurance monej', deduction of, 159, 
 legal right, lose of does not entitle to, 157. 
 loss tc peisonal estate to be measure of, 157. 
 mental 'H'erings cannot be considered, 157. 
 paymei' into court, 154. 
 
 probal) ■ ation of life may be used in fixing, 1.57. 
 reasona. . j.»i)ectation of pecuniary benefit necessary to recover, 157. 
 what is, 158. 
 
 l)arents", 158. 
 husbands', 158. 
 widow's and children's, 159. 
 what is not, 158, 159. 
 
HIES. 
 
 ;ht by persons 
 
 INDEX. 
 
 Locke King's Act—Continued. 
 Damages— C»n<i'm((-(/. 
 
 v( I'dic't for, setting aside, 150. 
 'vht'ii widow uniilile to recover, lo7. 
 
 Duels- liability of principals and seconds in, 
 Parent, meaning of, 154. 
 
 Lord Tenderden's Act, 302 
 Lower Canada. 
 
 iiicniiiiif^ of term, (1. 
 
 I'roviine of, to coii.slitute Province of (Juel)ee, 20. 
 
 use of term instea<l of " (,>iiei>ec " not to iiiviilidute dociiniciit, 40. 
 
 Lumber dues- 
 
 in New IJrunswick, 43. 
 in otiier i)rovince.s, 43, 
 
 Lunatics. Act respecting, (U.S.O. c. (i.'i,) "i.'JS, 
 scope of Act, '243. 
 Englisli Ai'* respecting, ii])j)lication of, 243. 
 
 Appeals from orders respecting, 242. • 
 
 Committees of estates of. 
 api)oiiitniont of, 24o. 
 duties of — 
 
 to tile inventory, 240. 
 
 to give security, 24(». 
 instruments executed by validity of, 242. 
 petition liy for leave to mortgage or sed, 241, 
 
 contents of, 241. 
 
 truth of to l)e inquired into, 241. 
 
 sale on, 241. 
 
 how ])rocceds applied, 241. 
 
 Contracts by, specific performance, of, 242. 
 Costs of inquiries respecting, 242, 246. 
 Idiot definition of, 243, 
 Inquiry as to -costs of, 242. 
 scope of, 240, 24.'). 
 by connni.ssion, 23H, 243, 244. 
 execution of, 244. 
 persons allowed to attend, 244. 
 petition for, 243. 
 protection of person pending, 244. 
 
 jiroperty jionding, 240. 
 (juasliing, 244. 
 traverse of. 23S, 244. 
 new trial of, 239. 
 
 sccuritv to be given on, 239. 
 
 tiiiie for, 238, 244. 
 trial of, 23S. 
 when barred, 239. 
 who have right to, 244. 
 
 Lunacy— inquiry as to, 
 
 without comnnssion, 239, 24."). 
 
 declaration of lunacy in, 240. 
 
 examination of alleged lunatic in, 239. 
 
 jury may be ie(|uired in, 239. 
 
 new trial of, 239. 
 
 pro(biction of lunatic in, 24.5. 
 
 traverse of, not allowed, 239. 
 proceedings in liee of, 240. 
 summary declaration of lunacy, 24.5. 
 jurisdiction over, 23S, 243. 
 
 aliens and non-residents, 245. 
 per.sons includer] by term, 23iS. 
 
 895 
 
896 
 
 INDEX. 
 
 o 
 
 50 
 
 < 
 
 I 
 
 09 
 
 7C] 
 
 Lunatics — Coiuhmul. 
 
 Property of, protection of, 240, 245. 
 ]ii'ii(ling coniniissioii, '244. 
 '"aynit'iit of ik'hts <mt of, 246. 
 sale of, -241, :M(). 
 
 siicccsHioii to not to 1)0 changed, '24(). 
 .surplus ffoin, how a))|)lie(i, '242. 
 Lunatic trustee, committee of to act, 242. 
 Magistrate, incaniu-; of term, S. 
 
 jioliee, a|)])ointMieMt of, (il, (iH. 
 Majority, powers of, where act required to he done hy more than two, 1((. 
 Malice. 'Sei! 1)kf.\mation. .Titstice.s of thk Pk.vce. 
 Marriage, exeluMve jurisdiction of Donnnion over, .3(). 
 does not include soleniini/.ation of, .",7, i>l, (),S. 
 
 Married Women's Property Act, The. (Il.S.O. e. 1(53), 768. 
 
 See iii-'i iJowr, The .Married Women's Real Kstale Act. 
 Administration of estates of married women, 788. 
 
 distrihution of, (il4. 
 
 I'ights and liabilities of legal personal representative, 777. 
 Contracts by married women. ^ 
 
 after Ajjril I.Sth. 1807, effe/'t of, 76!t, 784. 
 
 before A])iil IStli, 1897, deemed made with respect to separate estate, 71)!). 
 to liind after ae(juired piopert}', 7()!K 
 
 joint, 783. 
 
 ])owcr to make, 769. 
 Debts for household supplies. 
 
 liability tor, 787. 
 
 of wife, 783. 
 
 anteinii)tial, "Z, 787. 
 
 husband and wife may be jointly sued for, 774. 
 lialiility of husband for, 773, 78;{. 
 .Earnings. 
 
 of minor children, protection of, 77''5. 
 
 to be separate estate, 77<\ 781. 
 Execution of general power by will of married woman. 
 
 elleet of, 771. 
 Executrix or trustee. 
 
 nuiiried woman as, 77.">, 787. 
 History of legislation respecting, 778. 
 Husband and wife. 
 
 ipiestion of title between, sunniiary proceeding as to, 774, 788. 
 
 torts between, 773. 
 Interpretation. 
 
 "contract," 768. 
 
 "lialiilities," 768. 
 
 "pro])erty,'' 768. 
 Property held Jointly, 772, 781. 
 Remedies against married women, 769, 787. 
 
 (•ou'.inittal to gaol, 788. 
 
 injunction. 788. 
 
 judgment. 
 
 how enforced, 
 is not jiersonal. 
 
 of niarrie<I woman, 778, 787. 
 Restraint on anticipation, 769, 785. 
 
 power of court To bind jiroperty of married woman notwithstanding, 771, 78.5. 
 
 Separate estate. 
 
 alimony is not, 781. 
 
 property of womaTi married before 4th Mav. 18,")9, 7fi9. 
 
 between 4th Mav, lH,59and 2nd March, 187'i, 770. 
 
 since 2ud March', 1872, 771, 780. 
 
 since 4tli Mav. I8.')9, 770. 
 
 on or after Ist .luly, 18,S4, 771, 781. 
 
 since ist July, 1884, and acquired before that date, 77 -t' . 
 
INDEX. 
 
 ,S!)7 
 
 i>, 7(iH. 
 
 "I, 7S5. 
 
 Married Women's Property Act, The-Coniinned. 
 
 Separate estate--''„;,^/i »,.,/. 
 
 powei- to liold and (lis])ose of as a fimc so/e, 768, 78;?. 
 
 i-ightH of woman iiiairied lieforo 1st July, 1884, not afl'ected, 777. 
 
 statutoiy sepaiiite estate, 770. 
 
 stocks, dci)osits, etc;., when deemed to be, 771, 772. 
 
 exeeption where fraudulent investment of husband's mone\ , 772. 
 husband need not join in transfer of, 772. 
 
 under express settlement, 775, 779, 782. 
 
 what is, 779. 
 Short title, 768. 
 
 Summary of law respecting, 781. 
 Torta. 
 
 between liusl)an(l and wife, 773. 
 
 of wife, lial)ility for, 773, 78(i. 
 
 Married Woman's Real Estate Act, The. 'R. S. 0. c. 105), 799. 
 
 See also Dower, Married Women's Property Act. 
 Bar of dower. 
 
 I)y infant wife Defore oth May, 1894, 799, 804. 
 since tiiat date, 800. 
 Concurrence of husband. 
 
 order (lis|)ensing with, 801, 80"). 
 tiling of, 803. 
 form of, S02. 
 judge's fee on, 803. 
 may be endoi.sed on deed, 803. 
 registration of, 803. 
 fee for, 803. 
 unnecessary, 804. 
 
 Conveyances by married women. 
 
 defective, when validated, 800, S04. 
 exceptions, 804. 
 
 power to make, 799. 
 
 when married woman an infant, effect of, 805. 
 
 witli luisband since 29th, March, 1873, wben validated, 801. 
 
 without husl)an<l before 29th March, 1873, when validated, 800 
 Interpretation. 
 
 " judge," 799. 
 
 " real estate,"' 799. 
 
 Master and Servant. 
 
 Act re.spe(^ting, (R. S. 0. c. 157), 310, 
 
 accounts, impeachment of by workman, 311. 
 
 agreements by wiiieli worknien may share in profits, 310, 311. 
 
 when within tiie Act, 310. 
 
 for service, 310, 311. 
 
 verbal, not to exceed one yeai'. 
 
 Mercantile Amendment Act. (R. S. 0. c. 145). 432. 
 
 Bills of lading. See also Act kk8PKcti.ni; Uir.r.s ok Ladlnh. 439. 
 how fai' evidence. 433. 
 
 rights and liabilities of consignees and endorsees of, 4.33. 
 partners not within provisions as to, 438. 
 Sureties— 
 
 rights of on |)avment of debt, 432, 437. 
 securities, right of to, 437. 
 
 what are, 4.S8. 
 who are, 437. 
 
 Warehouse receipts, 433. 
 See also B.vnk Act. 
 
 lien on timber for advances under, 43.5. 
 
 limit of time for which goods or tinilicr may be Iield under, 434, 4,35. 
 lights and lial)ilities uikIci' as collateral .^ccoity, 434. 
 sale uniler, 435. 
 
 transfer of when given for crude petroleum, 4.3(i. 
 Merchant Shipping Act. (Imperial). 
 
 application of, 71. 
 
 repeal of by colonial legislatures, 7Ii 
 
 U 2 
 
808 
 
 INDEX. 
 
 o 
 
 C 
 
 < 
 
 E 
 ^ 
 
 00 
 
 > 
 
 Merger, l>y oporation of law, 180. 
 
 Military Forces — comniaiKl of (umtimied in the Queen,- 2'2. 
 exclusive iUillioiity of Dominion over, 35. 
 
 Misdemeanour, meaning of, i;{. 
 
 "Month," iMianingof, 7. 
 
 Mortgages of Real Estate, Aet respecting. (R. S. 0/ (•. 121 ). See also Reoistrv Act. .')94. 
 Advance on Joint account, 
 
 ellcct of, .">!)S, (id.S. 
 Application of Act, 606. 
 Assignee of raortgo,ge, 
 
 valiility of certain sales liy. (i()."), (ill. 
 Aasignment instead of reconveyance, 
 
 right of mortgagor to, .')!l."), (iU(i. 
 
 does not apply to mortgagee in ])osse.ssion, 595. 
 
 not i)revente(i liy ('ontraiy stipulation, 595. 
 
 to wlio'.M extends, 5!)5, 006. 
 Covenants implied 
 
 apiilication of sections respecting, 597. 
 
 art! joint and several, 597, 0(17. 
 
 in mortgage l)y benetieial ownei', .590. 
 of chattel's, (i(l7. 
 of leasehold, 590, 
 
 DiacharKes Of mortgage. See also Keoistry Act. 
 validity of .")9S. 
 
 liy mortgagees, survivors and executors, 509, ()07. 
 wiicie money advanced on joint account, .098. 
 Distress by mortgagee, 
 
 for interest payahle as rent, (ilKS. 
 limitation of right of, 599, 008. 
 
 rcimliursemeiit of otlieer or assignee paying money to relieve from, 600. 
 Executors of mortgagee, 
 |)o\vers of, 598, 007. 
 Insurance, 
 
 application of money payahle under, ,595, 607. 
 implied power to allect on default, OOl. 
 Interpretation, S94, 
 Mortgagor, 
 
 who is, 000. 
 Payment 
 
 lifxiit lidc to trustee, etc., eirect of, 599. 
 of principal after default, OiH», ()09. 
 |iursuant to notice of sale to he accepted, 0O4. 
 where dispute as to costs, 004. 
 Power of sale implied on default. 
 
 ap|)lication of provisions resjjccting, 003. 
 
 ])Uicha.se niorey on sale midci', 000, 002, 0(19. 
 improper exercise of not to defeat jiurchaser's title, 001. 
 notice to he given before exercising, 001. 
 foim of, (i02. 
 
 registration of, (i02. See also Registry Act. 
 attidavit for, 002. 
 certified copy of as evidence, 602. 
 service of, 001 
 
 on infant heirs, 601. 
 ])o\vers incidental to, (iOl. 
 
 to <all for title deeds and conveyance of legal estate, 003. 
 to convey mortgagor's interest to pmcliaser, 603. 
 to give rei!cii)ts for purcha.se money, 001. 
 to insure, 001, 009. 
 
 to make conditions, rescind and buy in, 601, 
 when excrcisalilc. OOO. 
 under Short l''orm mortgage, 
 when mortgagor selling under may proced under this Act, 603. 
 
INDEX. 
 
 899 
 
 Mortgages of Real "Estate— Cohiimied, 
 Proceedings 
 
 not to liu taken until lapse of time mentioned in notice of sale, 604, 610. 
 
 oi-ilcf allowing, 604. 
 
 ])i<)of fur, 604. 
 Purchaser of mortgage 
 
 may sot u)) defence of ])uicliase for value, 605, 610, 611. 
 Release of equity of redemption 
 
 eilcct of prior niortgagcc aci|uiring, 597. 
 as to priority under Registry Act, 598. 
 
 not to cause n\crger, 6!>.~), 607. 
 Taxation of mortgagee's coats, 604. 
 Title deeds 
 
 right of niortgagoi' to inspect, 59.5, 607. 
 Title of Act 
 
 niislea<ling, 606. 
 
 Mortgagor, suit by 
 
 for ))ossessi(>n, ISl. 
 
 no lit p( ii(i('ii-t need lie registered in, Ifl.S. 
 
 Mortmain and Charitable Uses Act, The. R.S.O. c 112,) 571 
 
 application of Act, 571, 57.'!. 
 
 (jmIv to legacies otherwise void, ■u'2. 
 Charitable Uses, 873. 
 
 devise to a diocese is not, 574. 
 Early Statutes, 572. 
 
 Jurisdiction of Hl^h Court under the Act, how exercised, 572. 
 Land. 
 
 (levised to charity to be sold. 
 
 meaning of, 571, .574. 
 
 ])o\\cr to retain foi- occupation, .572. 
 
 where leniains unsold after two years, 571. 
 Ohjects of Act, 573. 
 Personalty directed to be laid out in land, 572. 
 
 impure not subject to Mortmain Acts .572. 
 
 Municipal Act. 
 
 application of interpretation, section of 13. 
 
 Municipal Corporations. 
 
 Provincial Powers respecting 37, 61. 
 
 carinol delegate jiowcrs not jiossessed by the Province, 61. 
 
 may authorize granting of licenses 1)V, 62. 
 
 may extend boundary of to centre of navigable river, 55, 61. 
 
 may iinjxise a ])aynient for non-ijaymcnt of taxes levied liy 60, 61. 
 Mutes. — Kvidence of— see Witnesses .\M) Kvilenoe. 
 Name. 
 
 connnon, use of, 6. 
 
 Naturalization- 
 
 Exclusive authority of Dominion over, 36. 
 Naval Forces— c<inunand of vested in Queen, 22. 
 powers of Dominion as to, 22. 
 
 Navigable Waters. 
 
 jurisdiction over 
 
 Dominion 51, 55. , 
 
 Provincial, .")5, 61, 62. 
 
 Navigation and Shipping- 
 jurisdiction of Dominion as to .36, 
 exceptions to, 55. 
 
 New Brunswick, 
 
 ■)3, 55. 
 
 limits of, 20. 
 
 constitution of continued by B.N. A. Act 34. 
 
900 
 
 INBEX. 
 
 o 
 
 c 
 < 
 
 if. 
 
 
 03 
 > 
 
 I 
 
 New Brunswick— C'oH<i»«e</. 
 
 electoiiil ilisti'icts of, 26. 
 
 grant to for ten yonis, 4'2. 
 
 House of Assenil)ly of, continiiefl, 34. 
 
 Innibei' (hies in, 43. 
 
 represent at ion of in Hoiiwe of ConiiiionH, '2o, "28. 
 
 seat of government, 31. 
 
 Newspaper. See Defamation. 
 "Next." 
 
 liow con.strued, 6. 
 
 Notarial Documents as evidence- 
 See ^VlTNI■:.ss^;s and ICvidknck. 
 
 Notice. 
 
 jiulieial, see WitnesKes and Kvidenee. 
 
 of intention to use copy of instriinent as evidenee. 
 
 See WiTNKSSKS AND E\ lUKNCE. 
 
 Notice of Action. 
 
 in actions against puMie officers. 
 See JrsTicKs OK TiiK Peace. 
 in lil)el actions, see Defamation. 
 
 Notice of Injury. 
 
 See WoKKMENs' Compensation for In.ii-ries. 
 
 Notice to quit- See Kxecction Act, Landlord and Tenant A(;t, Overiioldinc Ten' 
 ant's Act. 
 
 Nova Scotia, 
 
 Constitution of continued by B.N.A. Act, 34. 
 
 Electoral districts of, 20. 
 
 first election for Legislative Assembh- in, 34. 
 
 limits of, 2(1. 
 
 Representation of in House of Coinnion.s, 2.'), 28. 
 
 Seat of (Jovernment, 3L 
 
 "Now," 
 
 liow construed, (i 
 Nuisances — power.s of Provinces as to, Cl, 68. 
 Number — bow exj)ressed, 8. 
 Numbers, of sections, constituent parts of an Act, 14. 
 
 Oath. 
 
 I)y Ijieutcnant-(ioveinor, etc, 30. 
 includes atlirniation and declaration, 7. 
 will) may administer, 7. 
 
 wbcn alHrniation nuule instead, 77, 78. 
 
 vben made out of Ontario, 85. 
 
 Oath of Allegiance. 
 
 Iiy members of Senate and House of Coiiiniona, 43, 4!). 
 
 by membeis of Legislative Assembly. 43, 4!). 
 Offence, comniittcd under an Act afterwards lepealcd, 12. 
 
 under more tbanono Act, 13. 
 Official Documents, bow proved mi evidence. See Witnesse.s and Evidence. 
 Ontario, Province of 
 
 electoral districts of, J.'), 31. 
 
 election laws of at union contiiuied, 33. 
 
 fir.st election in, for Legislative Assemblj', 34, 
 
 how constituted, 20. 
 
 legislature for, 31. 
 
 re))resentalion of in Hou.se of Commons, 25, 28. 
 
 seat of (Jovernment of, 31. 
 Operation of statutes. See Interpretation Act. 
 Orders for Chattels- See Conditional Sai.eh or Ciiattei,«.' 
 Overholding Tenants Act, The. (R.S.O. c. 171), 831. 
 
 See also The LaiuUord and Tenant Act. The Executit.n .Ad. 
 
KHiioi,i)iS(i Ten" 
 
 mNcii. 
 
 INDEX. 
 
 901 
 
 Overholding Tenants Act. The—Cmif limed. 
 Ejectment. 
 
 lijilulity of landlord for, 837. 
 Interpretation. 
 
 "laiidl-id," S.31. 
 
 "teimiit," 8,31, 836. 
 
 Notice to quit. .Sue also Execution Act. 
 rt;(|uisitii'.s of, S,S(i. 
 servife of, 837. 
 Proceedings against overholding tenants. 
 
 atlidavit of landlord in, not evideiico, 837. 
 appearance, ju'oceeding.s in default of, 832. 
 
 on, 832. 
 ai)plication to .Judge for inquiry, 831. 
 appointment for in(iuiry, 8.32. 
 
 notice of, 832 
 costs of, 833. 
 
 defences of tenant in, 837. 
 execution on, 833. 
 how .. (titled, 833. 
 
 jii.isdiction of Count}' Court in, what necessary to give, 836. 
 other remedies of lainlord not aflfected by, 833. 
 i-emoval of by certiorari, 832, 837. 
 
 service of papers in 833. ' 
 
 summoning of witnesses in, 8,33. 
 to form part of records of Court, 8.''2. 
 writ of possession, form of with costs, 834 
 
 without, 835. 
 writ of restitution, 8.33. 
 Scope of the Act, 836. 
 Short title of Act, 831. 
 Parties to an action, evidence of. .See Witnesses and Evide.'^ce. 
 Partition, jurisdiction of High Court in, 172. 
 Partnerships, Limited. Hee Limited Paktnekshu's. 
 
 registration of. 8ee Registration of Co-Partnerships. 
 Patents of invention, exclusive authority of Dominion over, 36. 
 
 Payment in.o Court. 
 
 in actions against Justices of the Peace. See Justices of the Peace, 
 in actions untler Lord Campbell's Act. See Loud Campbell's Act. 
 in newspaper libel actions. See Defamation. 
 
 "Peace, order and good government," jurisdiction of Dominion over matters relating 
 to, .51. 
 
 Penalties. 
 
 application of, 67. 
 
 for enforcing provincial laws, jurisdiction as to, 38, 67, 67. 
 
 jurisdiction of High Court respecting, 171, 177. 
 
 recovery and appropriation of where no mode specified, 9. 
 
 relief against, 171, 177. 
 
 right to grant licenses includes right to impose, 62. 
 
 under repealed Act, 12. 
 
 under Election Act, infant cannot sue for, 15. 
 
 when maj' be recovered on indictment, 9. 
 
 where imposed for breach of duty under private Act, 15. 
 " Person." meaning of, 7-14. 
 Plural number, includes singular, 8. 
 
 Police Magistrates, 
 
 appointment of, 61, 68, 
 Police Regulations, 
 
 jurisdiction of Dominion respecting, tiS, 
 of Provinces respecting, 61, 63. 
 
 Possession, 
 
 actions for by mortgagor, 181, 
 
902 
 
 INDEX. 
 
 
 CD 
 
 > 
 •50 
 
 Powers of AppointmeBt, 
 
 (loiu'c iiiiiy K'k'ii.so, 582. 
 exi!<iiti(iii of l>y 
 
 (li'i'd, .IS I, 
 
 will, ():58. 
 
 will (pf ninrned woman, 771. ' 
 
 rules i)f liiw lis to illusoiy appointments, 177. 
 
 Powers of Attorney, Act iesi)e(;ting (R. S. 0. e. lUi,) 299. 
 
 reviiciition of !)}• death or insanity of piinei|)al hefoie this Act, HOO. 
 
 validity of acts done in ignorance of death of constituent, 299. 
 
 when irrevocable, .SOO. 
 
 where provision expressly made for exercise after death of constituent, 299, 300. 
 
 Powers of Attorney, 
 
 registration of, 716, 729. 
 
 Powers implied, 
 
 of public olficers, 8. 
 
 of sale under mortgage. See Mortoaoes of Real Estate. 
 
 vested in corporation by words constituting it, 8. 
 
 where authority to appoint a public officer is given, 8. 
 
 where power to enact is given, 10. 
 
 Powers, 
 
 of confiscation, 51. 
 
 of legislation. See Leoislative Powers. 
 
 (tclegation of 51. 
 to regulote does not allow prohibition, 54. 
 
 Preamble of Statutes, 
 
 f in of enacting clause to be inserted in, 4. 
 to be deemed part of Act, 10. 
 when may be referred to, 15. 
 
 Precious Metals, 
 
 do not pass with a Crown grant, 71. 
 unless expressly conveyed, 71. 
 Prescription. See Real Property Limitation Act. 
 Private Act, 
 
 application of, 13. 
 how construed, 15. 
 presumption against, 10, 15. 
 
 Act not private because operation locally limited, 15. 
 
 where penalty provides for breach of duty imposeil by, no action for damages for 
 breach of such duty, 15. 
 
 Privilege, 
 
 in actions or libel and slandei', see Defamation. 
 
 Procedure, 
 
 legislative powers as to in civil matters, 38, 66. 
 
 in criminal matters, 36. 
 
 uniformity in, in the provinces, jurisdiction of Dominion to make provision for, .S9. 
 
 Proclamation. See also B. N. A. Act. 
 tletinition of, 16. 
 how proved. See Witnesses and Evidence. 
 
 Promissory Notes. See Bills of Exchange. 
 
 Public Debt, 
 
 authority of Dominion over, .'15. 
 
 of Nova Scotia and New Brunswick, interest to be paid on difTerence between and 
 
 stipulated amounts, 41. 
 provincial, assets connected with, 41. 
 
 Canada to be liable for, 41, 72. 
 
 interest on excess of to be deducted, 42. 
 
 Liability of New Brunswick for, 41. 
 of Nova Scotia for, 41. 
 of Ontario and Quebec, 41, 72. 
 of Upper and Lower Canada, arbitration as to, 46. 
 
iieiit, 299, 30<). 
 
 INDEX. 
 
 903 
 
 Public Lands, 
 
 for damages for 
 
 provision for, 39. 
 
 Buce between and 
 
 e.\('in|)t from taxation, 43. 
 
 of J'rovinci's at the Union to lielong to tliem, 41. 
 beds of laitus anil livers vestcil in Ci-own, (11. 
 c()iiveyan<:e of does not include |)ruLions metals, 71. 
 eselieated lands belong to Provinces, (51. 
 Indian Lands, 
 
 belong to Province on extinguishment of Indian title, .")(>, (!'. 
 title to vested in Crown, (il. 
 
 Public Moneys, 
 
 how ])aid over and accounted tor, 9. 
 
 Public Officers, 
 
 actions against. See Justices of the Peace. 
 
 appointment of — 
 
 etFect of words authorizing, 8. 
 to be during ))leasuie, 9, 15, (50. 
 
 directicns to, to include successors, 9. 
 
 fees of, '206, 21,). 
 
 when 8id)p(enaed as witnesses, 198. 
 
 implied powers of. 8. 
 
 not elegible for election to Legislative Assembly, 33. 
 of Dominion, 
 
 appointment of, 61. 
 
 salaries of, 35. 
 of Provinces, 
 
 continued by B. N. A. Act, 44. 
 
 jurisdiction over, ,37. 
 
 Public Works, 
 
 of each Province at time of Union to be the property of Canada, 41, 48. 
 
 Purchaser, 
 
 not affected by irregularities in orders of court, 182. 
 
 of mortgage may set up defence of purchase for value without notice, ()(»5. 
 
 Punishment, 
 
 authority to impose, 
 
 of Dominion, .3(5. 
 
 of Provinces, 67. 
 of witnesses, autliority of Province to impose, 64, 06. 
 where none provided by Provincial Act, 67. 
 Pardoning Power, as to offences against Provincial enactments, 67. 
 of Crown, extent of, 72. 
 
 Parliament, Imperial, 
 
 Acts of, in force in Canada, 50. 
 
 supreme authoritj' of not limited by B.N. A. Act, 80. 
 
 Parliament of Canada, 
 
 certain i)rovisions relating to, to apply to legislatures of Provinces, 35. 
 
 concurrent jurisdiction ot, 39. 
 
 debates in, may be in French, 44. 
 
 empowered to pass remedial laws regarding .separate schools, 3S. 
 
 empowered to make provision for uniformity of laws in the provinces, 39. 
 
 exclusive jurisdiction of, 35. 
 
 incidental juri.sdiction of, how far extends, 54. 
 
 how constituted, 22. 
 
 journals of, 
 
 both P^nglish and French to be used in, 44. 
 
 entry of (Jovernor-tieneril's messages to be made in, 29. 
 may confer jurisdiction on Imperial Vicc-A<lmiralty Courts, 50. 
 may interfere with public rights in navicable waters, 51, 
 may establish a general Court of Appeal for Canada, 
 not a delegate of tlie Imperial Parliament, 51. 
 power given to to perform treaty obligations, 
 session of, first, 22. 
 
 to be held yearly, 22. 
 to fix salaries of judges, 39. 
 
904 
 
 IN'DKX. 
 
 o 
 
 r 
 
 r 
 
 S 
 
 > 
 
 -< 
 
 Qualifications- 
 
 of Legii'liitivu C(iuiicilli)iM in (Quebec, 32. 
 of licoiist'cs — ])roviii(,'c iimy prescrilx! (W. 
 of iSeimtofs, 23. 
 
 Quarantine -cxi'lusive iiutlir)rity cif Doniiiiion respecting, 36. 
 
 Quebec, Province of 
 
 as coiiHtiliited liy 15.N.A. Act, '20. 
 election laws of iit Union eontiniied, 33. 
 electoral disliictH of, 2,'>, 48. 
 
 how alteied, 32, 
 Hi'st el(!ction for Legislative Assembly in, 24, 
 Legislature of, 31. 
 Legislative .AsseiuMy, 32. 
 
 " Council, 31. 
 
 representation of in House of Commons, 25, 28. 
 seat of (iovernment of, 31. 
 townships in, constitution of by 
 
 Lieutenant-(Jovenior, 40. 
 
 Queen, The 
 
 applicati(jn of provisions of B.N. A. Act respecting assent by to bills, 29. 
 connnand of armed forces vested in, 22. 
 executive government ^f Canada vested in, 20. 
 meaning of expression "The Queen,' 6. 
 
 Queen's Counsel, appointment of, 60, 65, 69. 
 
 Queen's Privy Council for Canada. 
 
 constitution of, 21. 
 Questions, Constitutional— see Constitutional Questions. 
 
 tending to criminate, — see Witnesses and Evidence. 
 Quorum. 
 
 of House of Conmions, 27. 
 
 judges — see Judicature Act. 
 
 of Legislative Assemblies of Ontario and Quebec, 34. 
 
 of Legislative Council of Quebec, 32, 
 
 of Senate, 25. 
 
 Railways. 
 
 belonging to Dominion not subject to Provincial Railway Ast, 63, 69. 
 
 declared to be for general advantage of Canpda, 69. 
 
 Intercolonial, 47. 
 
 Provincial jurisdiction over, 37, 58, 62, 63, 69. 
 
 Real Property Limitation Act, The (R.S.O. c 133) 659. 
 
 how differs from English Act, 674. 
 
 origin of Act, 674. 
 Acknowledgment in writing, 680. 
 
 by one of several mortgagees, 666. 
 
 by whom to lie signed, 680. 
 
 effect of, 681. 
 
 etjuivalent to possession, 665. 
 
 sufficiency of, 681. 
 
 to one of several mortgagors, 666. 
 
 to whom to be made, 681. 
 Administrator. 
 
 to claim as if no interval l>etween death and grant of letters, 664. 
 Commencement of Act, 660. 
 Continual Claim. 
 
 not to preserve right, 664, 680. 
 Coparceners, 680. 
 
 eflt'ect of possession by one of several, 664. 
 Descent cast, discontinuance or warranty not to defeat right, 664. 
 Disabmties, 671, 686. 
 
 easements, 671. 
 
 land or rent, 672. 
 
INDEX. 
 
 905 
 
 •29. 
 
 Real Property Limitation Act -Coniimml, 
 Dower, arrear of, 682. 
 
 action for to hf liiouj^lit within HI yearn, (i()8, 
 agri'oniuiil in lifu of, (>S4. 
 
 ai icar.s of for six years only to l)e recovered, ()(i5. 
 
 when rif^lit to I iri'ng action' for iiocrues when dowress in ])ossesHion, (568, 6S4. 
 Easements by prescription. 
 frown 1)01111(1 l)y, (i'.l'J. 
 enjoyment of, (iSH. 
 
 ""as of right," (iWi, 002. 
 must lie continuous, (i!(l, 
 next liefcjre action, (iilO. 
 disaliilities, (i"l, (i!»2. 
 how |)erio(ls for calculated, ()70. 
 in gross, ()S7. 
 indefea.sible, (iH.S, 08!). 
 
 light — easement of by prescription abolished, 670, 690. 
 outside the statute, 687. 
 [)resumption not adniissable on proof of enjoyment for less than prescribed period, 
 
 671. 
 profit a prendre, ()88. 
 re(iuisites of, 687. 
 
 rights of way and water, jieriod for, 670, 688. 
 period of enjoyment for 67<*, 688. 
 what party claiming nuist allege, 671. 
 how calculated, 67l>. 
 proof of, 671. 
 Entry. 
 
 l)y oM-ner on part of lands, efTect of, 679. 
 not deemed possession, 664. 
 Extinguishment of right, at end of period of limitation, 665, 674. ^ 
 
 Fraud. 
 
 ac(iuie.senee in, equitable rule as to, ])reserved 669. 
 time not to run wliile undiscovered, 669, 677. 
 except in case of hoiia fide purchaser, 669. 
 Interest charged on land. 
 
 arrears of, recoverable for 6 years only, 66. 
 
 exception in favor of subsecjuent mortgagee where prior one in possession, 666, 
 682. 
 Interpretation. 
 
 " assurance," 660. 
 "land," 660. 
 "rent," 660. 
 Joint Tenants. 
 
 possession by one of not possession of others, 665. 680. 
 Land or rent, actions to recover. 
 disabilities, 672. 
 
 to be brought within ten years, 661. 
 when time connnences to run, 671, 67o. 
 against mortgagees, 676. 
 remainderman, 676. 
 as to future estates, 66.S, 676. 
 wild lands, 661. 
 on alienation, 661. 
 on death, 661, 
 on dispossession, 661, 
 on forfeiture or breach of condition, 663. 
 
 new right of remainderman on his estate coming into possession, 663. 
 where rent under written lease wrongfully received, 662, 675. 
 where subject to tenancj', 675, 
 at will 662, 675. 
 
 not to be deemed to be in case of morttcagee or cestm que trmt, 662. 
 from year to year, 662, 675. 
 Money charged on land and legacies, 682, 683. 
 
 express trust not to enlarge time for recovering, 667 682. 
 when deemed \o be satisfied, 667. 
 
00(i 
 
 INDEX. 
 
 T 
 
 V 
 
 5 
 
 03 
 
 > 
 
 50 
 
 Real Property Limitations Act—Couiiniwd. 
 
 Mortgages, ti> 
 
 iiliMfiici- .t it'<l('iiii.si' cliiiisc, effect of, (tS3. 
 arknci« ;• Igineiit \>y one of several luoitgageeH, tlfili. 
 ti) OIK? It several iiiortgaKors, (i()(i. 
 aetioii nil eovenaiit in, <!s;t. 
 foreelosure, eO'eot of, GS4. 
 juclginent for, ^H'A, 
 
 inortga;;ee limy enter or sue within ten years from last payment, (>07. 
 mortgagor haired after ten years, (HMi, 0S2. 
 l)aynients iindi'r, tWS. 
 wiien time eonintenees to run, (J76, 
 Po88e88lon. 
 
 ae(|uisition of rightful title hy person in, 67H. 
 adverse (i77. 
 against infants, (377. 
 houiidaiies of G7W. 
 hy administrator, 07!). 
 
 earetaker, 078. 
 
 dowress, (itW, 084. 
 
 guests, 008. 
 
 relations of heir, 605, 680. 
 
 schoolmaster. 
 
 trespasser, 078. 
 
 wife, 678. 
 of wihl land, 679. 
 under defective title, 678, 
 i^<>lation8. 
 
 possession of not possession of, heir, 065, 080, • 
 
 Rent. See Land or Rknt. 
 
 arrears of recoverable for six years only, 666, 68';?. 
 
 meaning of, 674. 
 
 receipt of decmod receipt of profits, 668, 
 Sbor'i.titleof Act, 660. 
 Tenants In common. 
 
 effect of possession b\' one of, 664, 680. 
 Tenant in tail- 
 bar of bars those whose estates he might have barred, 068, 677. 
 
 deatii of while time running, effect of, 008. 
 
 possession under assurance by, effect of, 008, 084. 
 Title by possession, 674. 
 Trespassers. 675. 
 
 successive, 075. 
 Trusts, express. 
 
 not to extend time to recover money charged on land, 067, 682. 
 right of centtii q<ie fiiixt under — 
 
 against trustee not to be barred by statute, 180, 381, 303, 669, 677, ()84. 
 wiien accrues against iiurchaser, ()69. 
 
 Beceipt Notes. See Conditional Sai.es ok Chattki.s. 
 
 Registered Instruments — as evidence. See Witnesses and Kvidencb, Reoistkv Act. 
 
 Registration of Co-partnerships, Act respecting (R. S. O. c 152), 490. 
 
 clieese manufacturing companies excepted from, 493. 
 object of, 496. 
 Declaration of partnership. 
 
 allegations in, effect of, 491. 
 
 Hliug of, 490. 
 
 by person using " nud Company," 492. 
 
 within six months, 491. 
 
 penalty for omitting, 492. 
 
 suing for, 496. 
 
 form of, 492, 494. 
 
 how executed by absent members, 490. 
 
 liability of, partner not signing, 491. 
 
 - ersoiis signing deemed partners until new declaration filed, 491. 
 
j77, (iS-l. 
 
 .ECiisTKV Act. 
 
 INDKX. 
 
 Registration of Co-partnerships— Coj»/j«He</. 
 Declaration of partnership Oiiiri'iicnf. 
 
 I'cgistiar to record, 4ilw. 
 
 iiMiuisitcM of, 4iM(. 
 
 wIr'ii oliangc in iMirlncrsliii). 
 Declaration Of dissolution of partnership, 491. 
 
 form of, 4it4. 
 
 iii'ccssity for, 4!Mi. 
 forms, 494, 495. 
 Partners. 
 
 actions agiiinst wliore no declanition file<l, 401. 
 individually, 4i(t). 
 in jmrtnciship name, 49(>. 
 on instiunuMit in writing, 40'2. 
 
 liability of wlii'ie fail to declare, 491. 
 
 rights of, inter H(f, 491. 
 Fartnerships within the Act, 497. 
 registrar. 
 
 hooks to 1)0 kept by, 49.S. 
 
 duties of, as to tiling ileclarationa, 492, 493. 
 
 fees of, 493. 
 Trading in firm name. 
 
 declaration must be filed, 492, 497. 
 
 Registration of Limited Partnerships. 
 
 See Limited PAKTNKHaiin's and Registration of Co-Partsershii'S. 
 Registry Act, The(R.S.O. c. 136) (599. 
 affidavit of execution, 712. 
 
 affirmation instead of, TIT). 
 
 before whom to be sworn, 713. 
 
 certain defects in not to invalidate, 712. 
 
 form of, 755. 
 
 in case of instruments respecting purchase of goods, 712. 
 
 name of witness need not be set out in full, 713. 
 
 not necessary where seal of court or corporation appears, 71<i. 
 
 parties not to take, 715. 
 
 to be registered, 712. 
 
 where ditFerent witnesses to different signatures, 712. 
 
 witness absent or insane, 715. 
 
 compellable to nuike, 715. 
 
 must .sign in his own handwriting, 715. 
 Assessment commissioner. 
 
 registrar to fm'nish statement to, 746. 
 Books of office. 
 
 absence of oertiticate in margin of, effect of, 739. 
 abstract index, 711. 
 
 of sub-division of blocks, 734. 
 alphabetical index of names, 712. 
 entries and corrections in, 730. 
 general register, 708. 
 
 index of wills omitted from, 708. 
 inspection of, 749. 
 minutes of registration in margin of, 720. 
 
 absence of, effect of, 739. 
 new books, 708. 
 
 pages and instruments in to be numbered, 720. 
 plan index, 733. 
 
 registrar to deliver up when removed, 719. 
 repair of, 710. 
 
 to be certified by County Judge, 709, 
 treasurer to provide, 707. 
 
 remedy where neglects to do so, 709. 
 when worn out, 710. 
 
 where lost or destroyed — re-registration, 738. 
 where place separated from a county, 709. 
 By-laws, registration of, 728, 764. 
 
 907 
 
908 
 
 INDEX. 
 
 Registry Act— Cohi in nfd. 
 
 Certlflcate of registration, effect ot. 720. 
 Concealment of title deedi. Sic p. ,').su, 
 
 Certified copies. 
 
 iliit \ iif I'ffjiHtmrH to ceitify to, 
 
 iy'Xi. 
 
 •(Hi. 
 
 o 
 
 c 
 < 
 if 
 
 r 
 
 > 
 
 l)t IlllticCS of Kllll', T". 
 
 of powoiH of iittoiiicy, 71fl. 
 n•^'iHtl■lltioll of, 71(1. 
 to 111' /iriiiiii /iirif, (ivideiice, 717. 
 Crown grants, registration of, 720. 
 Deeds under process of the Court. 
 
 to lie rt'giHt(.'r»'(l in ni.x months, 720. 
 whoK! iimdf Ixfoiu IHtiM, 7'2!t. 
 Defects lu registration. 
 
 almtiict' of cfitilicati's in nmrgins of Ixjoks not to be, 739. 
 liefoii' Maich 4th. l«(i«, 7.'«>. 
 bufoie Miiicli L'Ktli, 1«73, 7.W. 
 
 « hcix' ])iirt of towuHliip olmnged with alteration of hookH, 740. 
 Deputy Registrars. 
 
 iipnoiiitinent of, 704. 
 liability of, 704, 70.5. 
 not to act as agent, 704. 
 oath l)y, 7(t4. 
 
 power of to act on death or removal of Registrar, 704. 
 removal of, 7'W. 
 Discharges of mortgages, registration of, 723, 760. 
 ellect of, 723. 
 hy niarrieil women, 726. 
 
 instruments authorizing discharge to he given, registration of, 72"). 
 ])artial, 72(5. 
 
 lesidence of witness to need not be given, 727. 
 neized under execution, 72(j. 
 validity of, ilOS. 
 
 when given by person other than the mortg.agee, 724. 
 where mortgage paid off by new loan, 724. 
 Equitable interests, not to prevail against the Act, 731. 763. 
 Evidence. 
 
 certified copies as, 717. 
 duplicate as, 719, 7(>7. 
 registrar's abstract is not, 767. 
 Fees, generally, 740, 767. 
 disputes as to, 744. 
 on abstracts, 742. 
 affidavits, 743. 
 certificates, 742. 
 copies, 743. 
 registration, 740. 
 
 of certificate of discharges of lien, 744. 
 mortgage, 743. 
 payment of taxes, 744. 
 of mortgages not in full, 748. 
 of plans, 742. 
 producing originals in Court, 743. 
 searches, 741. 
 showing originals, 743. 
 payment of surplus fees to treasurer, 748. 
 recovery of from municipal corporations, 744. 
 registrar to furnish statement of, 744. 
 
 make return of, 745. 
 table of fees to be posted up, 744. 
 to be payable before registration, 7^0, 
 
 Forms. 
 
 abstract index, 753. 
 
 affidavit of execution, 755. 
 certificate of County .Judge in lieu of, 756. 
 affidavit of justification, 751. 
 
 where instrument does not conform to plan, 758. 
 
INDKX. 
 
 909 
 
 Eegistry Act— Coiuinned. 
 Forms Oniilnudi. 
 
 al|)lini)oti('al iiuU'x, ''.U. 
 cortilicato of rrjjiMtriilioii, ''>(>, 
 
 n'H|H'ctitig ic),'isliy IhioIsh, 752. 
 covciiiiiit (if icgistrar, 7'>l. 
 (lincharj,'!' of iii.stiuiiiont croatiiig ft charge, 758. 
 inortj;a<,'(', 7")7. 
 
 Iiy Hhi'iill', 757. 
 niiiiiitu of rcgiHtratioii, 7.56. 
 u;,'istiai'"s oatli, ''>•>. 
 Hiii\uyor"H ciTtilicati' of |)laii, 75H. 
 Ink. 
 
 not to lie >iHC(l liy (RTMoiis scarcliiiig, 741. 
 Inspector of Registry Offivies, 
 (lutifH of, 74!t. 
 salaiy of, 751. 
 
 Interpretation, 
 
 " iii.stiunit'iit, 7U(). 
 " laii.l," TOO. 
 " will. 700. 
 
 Judgments affecting land, 
 registration of, 710. 
 for alimony, 17-. 
 lenwcs wlic'ii under the Act, 712, 762. 
 
 Letters of administration, 
 
 I'l'gistratioii of, ~\hi. 
 Mortgages. 
 
 n(l\Mn<!e8 on after sul)se(|uent registrations, 731, 76i>. 
 regi.stnition of not in full, 718. 
 Notice, • 
 
 actual, effect of, 7.30, 76(i. 
 registration to he, 72!), 761. 
 
 only atleets sulhsecjuent actjuirers, 705, 
 time of receiving, 7<>0. 
 
 Notice by Sheriff of seizure of mortgage, 
 
 registriitioii of, .'{22. 
 Notices of sale under mortgage. 
 
 certified copy of as evidence, 722. 
 registration of, 722. 
 
 conveyance under not to he registered before, 722. 
 proof for, 722. 
 
 Orders in Council, registration of, 721. 
 Plans, 
 
 registration of, 731, llMi, 704. 
 
 alteration of, 7.S2, 7S5. 
 
 copies of to he evi(lence, 733, 
 
 delivery of copy of to municipal ti'easurer, 7,38. 
 
 duties of registrar as to, 732, 733. 
 
 index hook of, 733. 
 
 instruments to conform to, 7.32, 762. 
 
 when instruments which do not may he registereil, 735. 
 mounting uf, 7.'<2. 
 not to he registered, 
 
 for anyone hut owner, 733. 
 on unpatented lands, 733, 762. 
 without mortgagee's consent, 733. 
 not to hind until sale nuule under it, 7.35. 
 of lanjls auhdividcd heforo 4th March, 18li8, 735. 
 of towns and villages, 736. 
 penalty for refusing to register, 735. 
 signatures to, 732. 
 
 verification of, 733. 
 
910 
 
 INDEX. 
 
 c 
 
 r 
 
 XT 
 
 r 
 
 > 
 •< 
 
 ■f 
 
 Registry Act —Continued. 
 TlaMs—Ciiiiiiiiiicii. 
 street s on, 
 
 altenition (if, 732. 
 work of, ~lV.i. 
 unrc'tfistertd jiliui, instruments referring to, 734. 
 Powers of attorney. 
 
 (;erti(iu<l cojjie.' of, 71(5. 
 registration of, 710. 
 to he /irlnia /'tele evidence, 717. 
 (lej)OKite(i in Land Titles OtHees, registration of, 717. 
 registiation wliere instrument exuoutei under, 71!). 
 to sell lands iianiing_connnis8ion, not to l)in<l after one year, 7"2i). 
 Priority of registration, 728, 766. 
 Purchase of goods, 
 
 instruments in relation to affidavits of execution of, 713. 
 di.seliarges of, 7-7. 
 
 Registrars. 702. 
 
 appointment of, 702. 
 
 eertitieate to l)e given l)^', 707. 
 
 death oi' removal of— County Attorney to act if no deputy, 704. 
 
 deputies, 71 M. 
 
 dishursements hv, suhjeet to revision of inspector, 749. 
 
 liahility of 7(M, 70."), 767. 
 
 none for certain errors, 707. 
 meaning of term, 8. 
 not to engiige in ceitain callings, 70.5. 
 oath of otli(U! hv, 704. 
 otHce hours of, 700. 
 jnoductiou of ])apers hy, 707. 
 removal of for misconduct, 70.'). 
 returns hy as to fees, 
 residence of, 70o. 
 salaries of, 740, 747. 
 seal of ollice of, 707. 
 security- hy, 702. 
 
 amount of, 702. 
 
 in8])eet(jr may require new covenants, 703. 
 
 liahility of sureties and regi.sti'ar, 70-*i 703, 767. 
 
 Lieutenant (iovernor may eijuire, 703. 
 
 right of puljlic to examine, 703, 
 
 R. S. (). e. 10 to apply to, 703. 
 
 sureties, 703. 
 to make searches, exhihit originals and certify copies, 706. 
 to see that copies in registers are correct, 720. 
 to supervise the work of the ofiice, 70.">. 
 Registration, how effected. 
 
 eertitieate and its etl'ect, 720. 
 
 eoj)ying into hooks, 720. 
 
 compul.sorv, 701. 
 
 defects in,' 73i), 740. 
 
 effect of, 728. 
 
 filing, 720. 
 
 generally, 717. 
 
 in several registry offices, 717. 
 
 of hy-laws, 728. 
 
 of certified copy of jmwer of atte.'ney, 716. 
 
 crown grants, 720. 
 
 deeils under process of .he court, 729. 
 
 dischai'ge of nuirtgage, 723. 
 
 notices of sale under mortgage, 722. 
 
 orders in council, 721. 
 of tax deeds, 029. 
 of wills, 721. 
 
 within twelve months from testator's death, 729. 
 of instruments. 
 
 executed heforo 1st January, 1860, 723. 
 
INDEX. 911 
 
 Registry A.Ct— Continued. t 
 
 Registration, how effected— CoH^iviwcrf. 
 in foreign liingunge, 717. 
 in full wluMi l)y memorial, 7'23. 
 in sovenil registry officer, 7li). 
 in rolution to purcliiise (jf goods, 713. 
 in two or nioir parts, 710. 
 relating to lands in two or more eounties, 71!). 
 
 several lots in ditt'erent loealities, 719, 
 of mortgages not in full, 71H. 
 
 of notarial eoj)ies of instruments exeeuted in Quebec, 717. 
 to he notice, 7'29. 
 
 what instruments may he registered, 702. 
 wlien deemed complete, ~'M), 7ti2. 
 where instrument exi^euted under j)ower of attorney, 710. 
 
 Registry offices. 
 
 at Toronto, 700, 701. 
 
 count}' council to provide huildings for, 702. 
 
 genei'al jjrovisions as to, 700. 
 
 ollice himrs of, 706. 
 
 removal of, 701. 
 Re-Registration. 
 
 wlicic hooivs lost or dcstroj'cd, 73h. 
 Short Title, 699. 
 Summary of effect of Act, 761. 
 Tacking, 
 
 how affected by Act, 731, 763. 
 Tax IDeeds, 
 
 to ho registered within eighteen months, 729. 
 
 where made before 18B8, 729. 
 
 Toronto, 
 
 Registry Office at, 700. 
 
 WiUs, 
 
 registration of, 721, 7()3. 
 m other registry divisions, 722. 
 proof of testator's death, 721. 
 
 whore testator has made suh.secpient conveyance of hinds, 722. 
 within twelve months from <loath of testatoi', 720. 
 Repeal of Statute. See 13. N. A. Act, Inteki'ketation Act. 
 Replevin, Act respecting (R.S.O. c. (iO), 247. 
 Action for. 
 
 demand, when must l)e made in, 250. 
 estoppel ni, 2")0. 
 how commenced, 249. 
 is a personal action, '240. 
 notice of need not be given, 249. 
 what goods can be recovered in, 249. 
 when cannot be brought, 230. 
 
 by party to action, 247. 
 
 when defendant has lien upon goods, 250. 
 when will lie, 240. 
 in County Courts, 24S. 
 in Division Courts, 248. 
 order for, how obtaiiied, 240. 
 pt)wer of slieriff to make search under, where concealed in defcndant'.s dwelling 
 
 house, 247, 2")0. 
 
 in other enclosure, '248. 
 
 on pers(m of defendant, 248, 230. 
 
 Representations, as to eluua'cter, etc, to 1)0 in writing, .S02. 
 Restraint on Anticipation. See Makried Womans' Puoi-erty Act. 
 Revised Statutes of Ontario, 
 
 ho\v constituted and cited, 4. 
 
 references to former cnaetmonts in construing, 14. 
 
 mas' be construed as c)ne Act, 14. 
 
 ii 
 
912 
 
 Royalties, 
 
 INDEX. 
 
 (/ 
 
 
 w 
 
 > 
 
 reserved to I'rnvinccs, -11, 70. 
 what included l)y term, 70. 
 
 Rules of Court, 
 
 eti'ect of, 15, 
 
 effect of rejical of Act under which made, 12. 
 
 what included bj', 10. 
 
 what iiiatter.s may he regulated hy, 198. 
 
 Scintilla Juris, 
 
 nt)t neces.sary to support a uso, 583, 5i)l. 
 
 Section, 
 
 meaning of, 15. 
 
 nuniher of, part of Act, 14. 
 
 Security, 
 
 meaning of, 8. 
 
 nunil)er of persons necessary, 8. 
 
 given l)y person appointed under Act, effect of repeal of Act on, 12. 
 
 Security for Costs, 
 
 in actions for Defamation. See Dkkamatio.v. 
 Seduction, 
 
 Abandonment of Daughter, 
 
 eti'ect of on parent's right of action, 1 1!). 
 Abatement, 
 
 not caused hy deatli of parent, 120. 
 Absence of Father from Ontario, 
 
 does not deprive him of right of action, 11!). 
 
 hy whom action for maintainable, 118, 11!). 
 fatiier, 118, 11!). 
 master, 118, II!), 120. 
 
 motlier, . 
 
 Death of Father, 
 
 effect of on I'iglit of action, 11!), 
 lUegltimate Child, 
 
 parents of liave no right of action, 119. 
 Pleading, 120. 
 Service, 
 
 proof of dispensed with, 118, 11!). 
 
 but loss of must still be shown, 119. 
 " Unmarried Female," 
 
 meaning of, 119. 
 
 when right of action complete, 120. 
 
 Senate, the 
 
 appointment of speaker, 24. 
 
 caiuiot award alimony, 54. 
 
 privileges, 22. 
 
 Huoiuni, 25. 
 
 representation of Provinces in, 22. 
 
 Newfoundland and P. E. I. in, -17. 
 "acancy in, <iucstions as to, 24. 
 
 summons on, 24. 
 voting in, 2.5. 
 
 Senators, 
 
 addition of, 23. 
 
 declaration of i|ualification by, 44. 
 
 disqualification of, 24. 
 
 Iiow summoned, 23. 
 
 members of Legislative Council of Nova Scotia or New lirunswiclv 'icconiinj; 
 
 not to sit in House of Commons, 25. 
 
 number of, 22. 
 
 maxinnwi, 24, 
 
 rtduction to normal, 24, 
 
 43, 
 
INDEX. 
 
 913 
 
 Senators— Co«/j/(«ed. 
 
 oath of allegiance by, 43, 
 privileges of, 22. 
 qualifications of, 23. 
 
 questions as to, 24. 
 resignation of, 24. 
 summons of first, 23. 
 
 on vacancy, 24. 
 tenure of office of, 24, 
 
 Separate Schools, 
 
 Appeal to Governor-General-in-Council from Provincial Act affecting, 38. 
 
 from Manitoba School Act, 1890, 70. 
 excepted from jurisdiction of Provinces over education, 38, 
 in Manitoba, 70. 
 in New Brunswick, 69. 
 Parliament <^f Canada empowered to make remedial laws regarding, in certain 
 
 cases, 38. 
 privileges of in Upper Canada extended to Quebec, 38. 
 summary of law respecting. 70. 
 
 Settlements. 
 
 of infants' estates, powers of High Court as to, 173. 
 
 Sheriff, 
 
 appointment of, 60. 
 
 duties of. See Creditors' Relief Act, Execution Act. 
 
 title under conveyance by, on Division Court judgment, how proved. 85. 
 
 to be an officer of the Court, 214. 
 
 Slander. See Defamation, 
 
 Statute of Frauds, applies to goods to be made, etc., 302, 303. 
 
 Statutory Declarations. See Witnesses and Evidence. 
 
 Stay of Proceedings, when granted, 179. 
 
 Subpoenas. See Witnesses and Evidence. 
 
 Supreme Court cf Canada, 
 
 appeals to, when to lie 
 
 (luestions as to future rights, 290, 291. 
 
 as to title to land, 290, 291. 
 
 as to validity of patent, 290. 
 
 where amount exceeds .$1,000, 290, 291. 
 
 where special leave is granted, 290, 291. 
 
 Supreme Court of Ontario, Act respecting (60-61 V. c. 34, Dom.), 290, 
 appeals to, when to lie, 290, 291, 292. 
 application of Act, 291. 
 preamble to Act, meaning of, 291. 
 Judges of, residence of, 290. 
 
 Sureties, meaning of, 8. 
 
 number necessary, 8. 
 
 rights of on payment of debt, 432. 
 
 Surrogate Courts, jurisdiction of, in infancy matters. See Infants. 
 Taxation, exemption of public lands from, 43. 
 
 exclusive authority ^f Doniiiiioii respecting, 35, 51, 55. 
 
 of ferries, jurisdiction of Province as to, 5.5. 
 
 want of uniformity in does not invalidate, 60. 
 
 when within Provincial Legislative powers, 37, 51, 55, 58, 59. 
 TaxeSi municipal, provincial powers over, 60. 
 
 Tender of Amends, 
 
 ill actions against Justices of tlio Peace. See Justices of the Peace. 
 ill liliel actions. See Defamation. 
 
 Tenure of Provincial Offices, 
 
 provincial powers as to, 37. 60. 
 to bo during [ileasure, 9, 15, 60. 
 
 except where Act provides for disniissal for specified offences, 60. 
 
 u2 
 
c 
 
 V. 
 
 i 
 
 03 
 •SO 
 > 
 73 
 
 914 
 
 INDEX. 
 
 Time. 
 
 of f'onimeiicenient of Act. See Isteki'RKTATKin A("r. 
 wliere expires on liolidav, 7, !;>. 
 liinitJition of. See Liniitatioiis of AetioriH. 
 
 Trustee Investment Act ( H.s.o. <•. i.S(i), ;;<)«». 
 
 Approval by Lieutenant-Governor of companies in wh!"*! funds invested, 400. 
 
 revocation of, 4tl]. 
 
 Interpretation of terms in Act, 399. 
 Liability of trustee, 
 
 for lending on insnfiicient security, 102. 
 
 lending more tlian authorized amount, 4(M, 4().'<. 
 Relief of trustees, 404. 
 detention of securities, 
 
 when a breacii of trust, 404. 
 Securities in which trustees may invest, 399, 4no. 
 Unauthorized investments, 402. 
 Valuer 
 
 (lualilication of, 401, 403. 
 
 wlien trustees not oliargeable for lending on insufficient secinity, 401. 
 
 Trustees and Executors, 
 
 exei'ution on judgment ajjMiist, 32", 3:W. 
 limitation of actions i-gainst, ()80, tiOU. 
 married women as, '.''y. 
 of moitgagce, powers of, 598. 
 
 Trustees and Executors, Act respecting (R.S.O. c l-_'!i|. 'M-l 
 Actions of tort, 
 
 Uy and against executors, .375, 391, 395. 
 damages in, ,'?7">. 
 Advertisement for creditors, 384, 895. 
 Advice, 
 
 ai)plicatioii to Court for, 38."), 390. 
 costs, 397. 
 
 Allowance, 
 
 to trustees and executors, 38.'), 3S(i. 
 
 may he made though estate not before Court, 386. 
 Surrogate Judge may allow, 386. 
 
 Appointment, 
 
 of agent by trustees, 380, 387. 
 of new trustee, 373, 389. 
 
 Bare trustee, 
 
 mari'ied woman as, 374, 390. 
 
 vesting of fee simple hehl by in per.sonal representatives of, 374. 
 
 Breach of trust, 
 
 at re(|uest of cestui (jui trust, 381, .39"2. 
 technical relief agjiinst, 381, 393. 
 
 Compensation. 
 
 to trustees and executors, 385, 397. 
 Conditions of sale, 
 
 In trustees, 380, 392. 
 
 Contract, 
 
 for sale by deceased, conveyances by executors under, 378, 39?, 
 Debts, 
 
 to rank jviri jiitsKii .383, 395. 
 Distress by executors, 376, 391. 
 Devisee in trust, 
 
 power of to raise money, 376, 
 Direction to sell, 
 
 excriMse of bj- executors, ,377. 
 Distress by executors, 376. 
 
 when may be made, 376. 
 Duties of executors, 379. 
 
d, 400. 
 
 401. 
 
 
 INDEX. 
 
 Trustees and Executors— C'o//'/" "erf. 
 Estoppel of creditor, 395. 
 Indemnity, 
 
 clause for, iiicludwi in evciT truKt iiiHtruniont, 3!);i. 
 (loe.s not prott'ot in l)reat:li of tni.st, 387. 
 exception, :W0, 392. 
 trustee entitled to, 3S!). 
 
 Instirance, 
 
 bv trn.st.e, 381, 393. 
 
 by trustees, 381, 393. 
 Investments by. 
 
 See TiiK TiiU.sTKK Investment A<t. 
 Joint contractors, 
 
 aetions against cxecutor.s, of 370, 391. 
 
 Leases, 
 
 liability of executor on covenants in, 383, 395. 
 Liability for acts of co-trustees, 372, 387. 
 Liens, 
 
 priority of not affected, 395. 
 Limitation of Actions 
 
 against directors, 393. 
 executors, 383. 
 trustees, 180, 382, 393, 394. 
 
 New Trustees, 
 
 aj)pointnient of, 373, 389. 
 
 cannot bo made by surviving trustee by will, 389. 
 declaratory, 390. 
 who may be, 389. 
 powers of .390. 
 
 vesting of pro[ifrty in, 374, .390. 
 excei)t stock, etc., 374. 
 Payment into Court of trust funds 
 held by thiid i)arty, 37"), 391. 
 to trustees, 37."), 3'.»I. 
 " Personal Estate," 
 
 meaning of in Act, 372. 
 Powers 
 
 of executor to rai.se money, 377, 991. 
 incjuiry as to exorcise of, 377. 
 toinsuic, 381, 39.3._ 
 raise money, 376. 
 settle debts, 382, .394. 
 sell in will, exercise of by administrator, 378. 
 
 " Real Estate," 
 
 meaning of in Act, 372. 
 Relief of trustees, 381, 393. 
 Receipts of trustees, 
 
 to be etl'ectnal discharge, 375. 
 Remunerated trustees, 
 
 liability of for agent, 389. 
 Rent charge, 
 
 liability of executor on covenants in conveyance on, .(84. 
 
 Retainer, 
 
 right of abolished, 383, 395. 
 
 Rights and UaWlities of Trustees, 372, 393. 
 Sales by executors, 377, 391. 
 
 1)V tru.stees, wdien not imjjeaehable, 380. 
 Set-off by executor against legatee, 395. 
 Specific performance. 378. 392. 
 Trust deed for benefit of creditors. 
 
 distribution of assets under, 384. 
 
 91.5 
 
91(5 
 
 INDKX. 
 
 c 
 
 < 
 
 
 03 
 
 > 
 ?0 
 
 Trustees and Executors— Cowiiwuerf. 
 Vendor and Purchaser Act, 
 
 exclusion of application of by trustees, 374, 390. 
 "Wm," 
 
 meaning of under Act, 372. 
 Ultra vires enactments. See Legislative Powers. 
 protection of justices acting under, 123. 
 
 Uniformity of laws in the provinces- 
 Parliament of Canada empowered to make provision for 39. 
 Upper Canada, 
 meaning of, 6 
 
 Province of, to constitute Province of Ontario, 30. 
 use of instead of " Ontario " not to invalidate document, etc., 46. 
 
 Vacancy, 
 
 in House of Commons before provisions made, 27. 
 in Legislative Council of Quebec, 32. 
 
 questions as to, how decided, 32. 
 in office of Sptaker, in House of Commons, 27. 
 
 in Legislative Assemblies, 34. 
 in Senate, 24. 
 
 how filled, 24. 
 
 questions as to, how determined, 24. 
 
 Vacations of Courts, 184. 
 
 Validity, of legislative enactments. See Legislative Powers. 
 jurisdiction o* High Court as to. See Judicature Act. 
 
 Vendors and Purchasers Act (R. S. O. c 134), 693. 
 Covenant to produce documents, 
 
 inability to furnish, when not an objection to title, 093, 695. 
 Evidence in Actions, 694. 
 Memorials of discharged mortgages, 
 
 how far evidence of the mortgage, 693, 69S. 
 
 twenty years old, wlien and of what evidence, 693. 69.5. 
 Objects of tlie Act, 695. 
 Recitals, 
 
 twenty years old to be prima fucie evidence, 693, C95. 
 
 Short Title, 693. 
 
 Summary applications to High Court, 694. 
 appeal, 696. 
 
 consequential relief in, 697. 
 costs, 698. 
 jurisdiction in, 696. 
 ])arties to, 696. 
 (jucstions decided in, 697. 
 
 compensation, 697. 
 
 construction of contract, 697. 
 
 conveyance, 697. 
 references to Master in, 698. 
 service nut of jurisdiction in not allowed, 696. 
 what may be done under, 696. 
 trustees need not exclude application of Act, 374. 
 
 Vesting Order, oftect of, 172. # 
 
 power of High Court to grant, 172. 
 Verdict. See Judicature Act. 
 
 in libel actions. Sec Defamation. 
 Vice-Admiralty Courts. See Courts. 
 
 Voluntary Assignments, for the benefit of creditors. See Assignments for Benefit op 
 Ckkkitous. ^,^iia 
 
 Voluntary Conveyances, 
 
 Act respecting (R. S. O. c. 115), .%7. 
 object and eft'ect of Act, 370. 
 
ris FOR Benefit of 
 
 INDEX. 
 
 Voluntary Conveyances— t'o»^H Her/. 
 Fraudulent Conveyances 
 
 lucit.il of SM. 1, 2 1111(1 (i of 13 Rli/.., c. ">, .S67. 
 
 (leclanitioii as to nieaniiig of, .309. 
 
 CL'itiiin iiisliuniciits not all'ectod, 30!). 
 not to be void merely for want of valual>le eonsideration, 3(i7. 
 
 Init not to be ruiidered valid if void for other reasons, ;{(i7. 
 
 w lien void, 370. 
 
 Vote, 
 
 in Honse of Uommons, 27. 
 
 Senators not to have, '2o. 
 
 when Speaker to have, 27. 
 in Legislative AsaeinWies, 34. 
 in Legislative (Council of Quebec, 32. 
 
 when Speaker to have, 32. 
 in Senate, 25. 
 
 Speaker to have, 2't. 
 
 result when e((ual, 2;". 
 (|ualitieations for in election of nienil)ers of House of Connnoiis, 2(i. 
 
 Wage;;, 
 
 Act respeeling (R. S. 0. e. 15G), 498. 
 
 application of, 498. 
 
 not to interfere with any Dominion Insolvency Aet, 499. 
 
 due to mechanics, etc., exempt to .'?25.00, 499. 
 
 j)ayment of *on distril)ution of estate, 499. 
 
 ])roteetion of assignee on, 499. 
 priority of in administration of estates, 499. 
 
 in case of attachment, 499. 
 
 in winding up |)ro(-eedings, 498. 
 
 over assignments for the benefit of creditors, 498. 
 
 over execution creditors, 498. 
 wiio are entitled to priority, 501. 
 
 Warehouse Receipts. See Bank Act, Mercantile Amendment Act. 
 Waste, Equitable, 
 
 right to eonnnit, 180. 
 
 Weights and Measures, 
 
 exclusive juiisdiction of Dominion over, 36. 
 
 Wills Act of Ontario, The, (R. S. 0. c. 128), 634. 
 
 Acts repealed bj', 043. 
 After acquired estates, 
 
 when passed by will, 635, 636. 
 Alteratious, 639, 654. 
 .Appointments by will, 
 
 how to be made, 038, 650. 
 Conveyance after will, 
 
 not to prevent its operation as to any estate left in testator, 640, 
 
 Death, 
 
 of beneliciary, ell'ect of, 642, 657. 
 
 will to speak from, 040, 655. 
 Devise, general, 
 
 what jiasses under before 1874, 635. 
 since, 041. 
 
 leaseholds, 640, 656. 
 
 property over which testator has a general power of appointment, 641, 056. 
 
 whole estate in land devised, 641, 656. 
 Devise of estates tail, 
 
 when not to lapse, 642. 
 
 to issue who leave issue, not to lapse, 642, 657. 
 
 to trustee, 642, 657. 
 " Die without issue," 
 
 oflect of, 041, 657. 
 
 917 
 
918 
 
 iNUfc;x. 
 
 •< 
 O 
 
 c 
 
 < 
 
 r 
 
 ?: 
 
 1 
 
 03 
 70 
 
 > 
 50 
 
 ■< 
 
 Wills Act of Ont&no—f^oiiiiuued. 
 Estates tail, 
 
 wlieii tluvisca of not to lapse, 642. 
 Execution, 
 
 atti'station. 
 
 before 1874, 633. 
 
 siiice. 637, 648. 
 absence of, 650. 
 
 form of, 64<J. • 
 
 position of, 649. 
 signature, 6,37, 646. 
 
 acknowledgment of, 648. 
 at foot or end, 647, 
 by initials, 648. 
 by mark, 648. 
 by testators direction, 648. 
 in presence of witnesses, 648. 
 in wrong name, 648. 
 presumption of due execution, 649. 
 
 Heir, 
 
 meaning of in devise of realty, 641, 650. 
 
 History of Legislation respecting, 645. 
 
 Indians may make a will, 646. 
 
 Infants, wills by invalid, 637. 
 
 Interpretation. * 
 
 (lie without issue, 641. 
 
 iieir, 641. 
 
 lan<l, (i34. 
 
 mortgage, 636. 
 
 person, 636. 
 
 personal estate, 636. 
 
 real estate, 636. 
 
 testator, 636. 
 
 will, 63t). 
 Jurisdiction of High Court, 
 
 to try validity of wills, 173. 
 Lapsed devises, 
 
 to sink into residuary devise, 640, 655. 
 
 Liens, 
 
 for unpaid purchase money to be primarily charged on the land, 643. 
 
 Locke King's Act, 642, 658. 
 
 Harried woman, 
 
 wills by, after 1874, 636, 646. 
 
 between 1839 and 1874, 635, 646. 
 Mortgage debt, 
 
 to be pi'imarily chargeable on the land, 642, 658. 
 
 direction that debts be paid out of personalty not to affect, 643. 
 Nuncupative wiUs of personalty, 
 
 i)y soldiers and seamen, 638, 650. 
 Obliterations and interlineations to be executed, 639, 
 Operation of Act, 635. 
 Power to dispose of property by will, 636. 
 Proof of wills, 87, 88. 
 Property wbicb may be disposed of by will, 636. 
 
 after acquired estates, 635, 636. 
 
 contingent interests, 6.36. 
 
 estates pur outre vie, 636. 
 
 riirhts of entry, 637. 
 Publication unnecessary, 638. 
 Registration of wills, see Rrqibtry Act. 
 Revival, how effected, 640, 651 
 Revocation of will, how made, 639, 653. 
 
 by another will, 633. 
 burning, 633. 
 
INDEX. 
 
 919 
 
 43. 
 
 Wills Act of Ontario— f '"»''■""«''. 
 Revocation of will— ('»"'>""<■'' 
 l)y oancoUiiiion, (ii54. 
 inarriii^o, (53!(, (t'y2. 
 obliteration, Ci)3. 
 otherwise destroying, 853. 
 tearing, t)r)3. 
 destruction must be authorized by testator, 603. 
 none by change of circumstances, 6.S9. 
 or dealing with property, 055. 
 with reference to other disposition, G54. 
 Short title, 634. 
 Summary of effect of Act, 645. 
 Trustee, 
 
 (.See also Tki'steks AND Executors Act.) 
 
 devise to, wlien to carry whole estate of testator, 642, 05<. 
 
 WitneBses, 
 
 before 1874, 635. 
 
 since, 6.37. 
 
 creditors may be, 638. 
 
 executor may be, 639. 
 
 gifts to invalid, (>38, 651. 
 
 incompetency of, not to invalidate, 638. 
 
 signatures of, 649. 
 
 " Without impeachment of waste," 
 
 liow construed, 180. 
 "Writing," meaning of, 7. 
 " Written, ' meaning of, 7. 
 
 Witnesses and Evidence, 
 
 Tlie Canada Evidence Act (.J6 V. c. 31), 99. 
 The Evidence Act (H.S.O. c. 73), 75. 
 
 Affidavits. See also Rkuistry Act. 
 
 formal defects not to invalidate, 87. 
 made out of Ontario, before wliom to be made, 85. 
 not signed by deponent, wlien received, 97. 
 recpiired by insurance companies, 104. 
 Application, 
 
 of Dominion Evidence Act, 106. 
 of Provincial laws of evidence, 103. 
 
 Attesting witnesses, 
 
 (See also Re(ii9try Act and Wills Act.) 
 
 when necessary, 98. 
 
 when need not bo called, 91. 
 Breach of promise of marriage, 
 
 corroboration necessary, 76, 94. 
 
 parties as witnesses, 76, 94. 
 Children, Evidence of 
 
 must be corroborated, 104. 
 
 when admitted, 104, 106. 
 
 Comment, 
 
 not to be made on failure of accused to testify, 99. 
 Commissions to examine witnesses, 
 
 in relation to action pending in foreign Court, 90, 98. 
 administration of oath in, 91. 
 expenses of witnesses in, 91. 
 right to refuse to answer questions in, 91. 
 power to issne not affected by C.S.C. c. 79, sa. 4-11 
 Communications during marriage, 
 not to be disclosed, 77, 94, 99. 
 
 80. 
 
920 
 
 INDKX. 
 
 o 
 
 % 
 
 c 
 < 
 
 r 
 
 I 
 
 CD 
 
 > 
 
 50 
 
 Witnesses and Evidence— Con/i/iMff/. 
 ComparlsonB of disputed writings, 91, 98. 
 Compellable meanlne of, 93. 
 Competency of witnesses, 
 
 injoust'd, uiid IuisIkukI mid wife of, !)!). 
 
 ciitiiinent not to lie iniiilc on failure to testify, 93, !>4, !1!>. 
 eiiiiie or interest not to inea|meitiito, 7">. 
 defendants to pi'oseentionM under Frovineial AetH, !M, 
 liusliand and wives, of jn "ties, 7<i, 77, SY,\. 
 
 not (•onipetenl to <ii.,' lose eoii.nuniiealionH made dining iimrriagu, 09. 
 partiuH to action for l)reaeli of jn'oniise of niarringe, 7<>, 94. 
 pnwcedings in eoimeipieneo of adidtery, 77. 
 Corrobratlon-what Is siifflclent, 98. 
 in acti(;ns- when necessary, 
 l)y or against lunatics, 77. 
 
 representatives of deeeaHod persons, 77, 9."), 
 for l)reaeh of jiroinise, 7(), 4. 
 to prove adultery, 94. 
 
 wln^re witne.ss is a ehild of tender years, 104. 
 wlien not necessary, 95. 
 
 Depositions, certified copies of admissible in evidence, 87. 
 Dlvisl'^n Court Judgment, 
 
 liow i)ro\ed, 9". 
 
 title liy slierilFs deed undei', liow proved, S.'), 
 
 Evidence as between Vendor and Purchaser. 
 See Vksooiis and I'rucnASEiis Act. 
 Examination of WituesEeo, 80. 
 
 contradiction by proof of previous statenientH, 
 in writing," KO, 90. 
 oral, 80, 96. 
 how far a i)arty nia\' discredit liis own witness, 80. 
 |)roof of previous conviction, 80, 90. 
 Foreign Judgment, 
 
 !i(iw proved, 8,3, 97. 
 Husbajids and wives, evidence of, 76, 77, 93. 
 
 not coni|)elluhle to disclose comniunieations made during marriage, 77, 94, 99. 
 in i)i'oceedings in consequence of adultery, 76. 
 Infancy matters, 
 
 witnesses in, "284. 
 Instruments, 
 
 1,'ertain, may be proved by copies, 90. 
 comparison of disputed with genuine wi'iting, 91. 
 impounding of, 91, 98. 
 
 methods of pi'oving not limited by the Act, 92. 
 to which attestation is not necessary, how proved, 91 . 
 filed in Land Titles offices, how proved, 89. 
 registered, jHoof of by copies, 88, 98. 
 duplicate oiiginals, 88, 98. 
 Judicial notice, 106. 
 
 to be taken of. Imperial Statutes, etc, 100. 
 public Acts, l(). 
 signatures of judges, etc., 84. 
 
 Judicial proceedings, 
 
 how proved, 101, 106. 
 
 l)ivision Court, 97. 
 
 foreign, 83, 97. 
 Mutes, 
 
 how evidence of to be given, 100. 
 
 Notaries, 
 
 copies of instruments, etc., certified by, to be received in evidence, 84, 102, 106. 
 
 how impeached, 85. 
 protests of notes by to be prima facie evidence, 85. 
 seal, when necessary', 87. 
 
INDEX. 
 
 921 
 
 e, 99, 
 
 Witness and Evidence —ConiinneiL 
 Notice, 
 
 (if intention to use copy, 88, 103, lOG. 
 
 Oatha, 
 
 oxtriijiKliiMiil, Kit). 
 
 wli ) may ailiniuiMtui', 7H, lO.'i. 
 
 who imij- attirin "V declure, 77, 7S, lU.'J. 
 
 pt'ijury under aflirniaiion, UW, lOtt. 
 
 Official documents, 
 
 1 (ipifs of til In- liloil as oxhibitH, 81). 
 
 L'X(;L'i)t where genuineness (juestioned, ,sn, 
 101). 
 
 Ii ,w nroveil, SI, S2, S.S, !I7, 101, 
 nrivilei'c in case iif, SI!. 
 
 r, !)4, 99. 
 
 S4, 102, 106. 
 
 Parties, 
 
 evidence of, 70, 77, 9;{. 
 
 reiident in (Ireat Britain, 91, OS. 
 
 stniinioniiif,' of liy opposite parties, 78, 95. 
 
 Procee Jlngs in conseciuenoe of Adultery 
 
 lMl^^l>i^nds and wives eonijietent witnesses, 7ft. 91. 
 
 Proclamations, 
 
 how pioved, M, 97, 100, lOl, 100. , 
 
 Punisliraent of Witnesses, 
 
 provincial jxiwers as to, 04, ()(i. 
 Questions tending to criminate, 106. 
 
 ( Doin.l witness conipelled to answer, 90. 
 
 l)Ut answer not to l)e used against liiin, 99. 
 (Out.) witness not conipellal)le to answer, 70, 91, 93. 
 
 except when previously pardoned, 98. 
 (piestions may lie asked, 98. 
 protection nnist be claimed by witness, 106. 
 
 Signatures, 
 
 of judsies to bo judicially noticed, 84. .,,,-,,• i . 
 
 anil stalls of persons authorized to take atlidavits, etc., outside of Ontario, need not 
 
 be proved, SO. 
 
 Statutes and Public Documents, 
 
 bow proved in evidence, SI, 82, 83, 97, 101. i 
 
 ))V-laws of corporations, S.'l. 
 
 Canadian and Provincial statutes, 81. 
 
 Imperial statutes, etc., 101. 
 
 copies of iniblic books, 83, 102. 
 
 entries in departmental books, 83. 
 
 examined copies, wliat are, 97. <• t * . .,;„;i<, ino 
 
 handwriting, etc., of persons certifying to copy, proof of not ie(iuisit( , U)_. 
 
 olticial notes, documents, etc., 83, 102. 
 
 privilege in case of, 83. ,.„ 
 
 notice to be given to adverse party of intention to produce copy, 88, 103. 
 orders signed by Secretary of State, 82, 102. 
 
 Provincial Secret.iry, 82. 
 proclamations of Government of Canada, 81. 
 
 provincial governments, 82. 
 when privileged from production, 83, 97. 
 
 Statutory declarations, 
 form of, 105. 
 who ma}' take, 104. 
 
 Subpoenas, 
 
 disobedience of, consequences of, 79. 
 expenses to be tendered with, 79. 
 issue of, provisions respecting, 79. 
 service of, 79. 
 
 how proved, 79. 
 to opposite parties, 78. 
 to Quebec, 9.). 96. 
 
922 
 
 INDKX. 
 
 a 
 
 c 
 
 2 
 
 
 1 
 
 03 
 
 > 
 
 Wills. 
 
 proliuto of, liow iur I'viduncu, 07. 
 proof of, 87, 117. 
 COBt of, 87. 
 
 wlioio fiU'd ill coiirtH'in otiior Hritixli poHNessioim, HH. 
 
 Workmen's Compensation for Injuries Act, The (H. S. (). c HKi), i:w. 
 
 Src iimoiKliiig Act (B2 V'i<:. c. IH), 838. 
 Adml8SlonB, 
 
 how made, 14,3. 
 Arbitration. 
 
 Sw Act of 1899, 838. 
 AggessorB, 
 
 aliNeiico of, 141. 
 
 additioiml, 141, 
 
 cost of, 14'2.- 
 appointment of, 14(t. 
 
 by court or jud)j;e, 141. 
 
 form of ap|ilicati(in fi)r,[141. 
 
 in Division Court, I II. 
 duty of, 14-2, 153. 
 fees of, 142. 
 
 wlici't^ trial (loeB nut a<ikcjplbcu,*142. 
 
 Burden of proof, 
 
 where injury caused by certain machinery, S38, 849. 
 Changes effected by the Act, 145. 
 Compensation, 
 
 amount of. 137, l.')2. 
 
 agreement by workman as'ikfence'to action lor, 137. 
 
 distribution of, 137, liVJ. 
 
 in couHolidated actions, 143. 
 
 penalties to be deilucted from, 138.'" *jj 
 
 time limited for recovery of, 137, I'Vi. 
 
 CongoUdation of actiong, 
 for the same ('ause, 142. 
 terms on which granted, 143. 
 damages recovered in, how assessed, 14.3. 
 
 how di8tribute<l, 143. 
 
 execution for, how raised, 143. 
 
 Contract by workman, 
 
 when a defence, 137, 152. 
 
 Claim agalngt employer, 
 
 when workman te have, 134. 
 Defectg In plant, 
 
 when entitle workman to recover, 134, 136, 149. 
 
 when do not, 136, l.^i. 
 
 what are, 14(5. 
 
 what are not, 147. 
 
 Defect In railway, 
 
 what deemed to be, 1.3.^, 136. 
 
 no agreement by workman to bar action for injuries from, 138. 
 
 Defenceg to actiong for. 
 
 contract by workman, 137, 152. 
 
 knowledge of defect by workman, 136, 145. 
 
 limitation of time, 138, 145. 
 
 non-employment, 1.39. 
 
 volenti non fit injuria, 151. 
 
 want of notice of injury, 137, 1.38, 146. 
 
 " Employer. " 
 
 who deemed to be, 135, 151. 
 Faotorieg Act, how far non-compliance with ig negligence, 151, 849. 
 Formg and ruleg, 144. 
 
INDEX. 
 
 023 
 
 188. 
 
 Workmeiis Compensation for Injuries Act— Coiuinued. 
 Interpretation. 
 
 " claiiiumt," 
 
 " court," H3S. 
 
 " (lofoiidiiiit," 83«. 
 
 "employer," 183. 
 
 who (It'cincil to 1)0, 135, 151. 
 
 " ju.ka-," H3H. 
 
 " iMicking," 134. 
 
 " pliiintifr," S38. 
 
 " railway servant," 134, 146. 
 
 " resj)oinleiit." S3H. 
 
 " suit action or proceeding," 838. 
 
 " suporiutendenoo," 133. 
 
 " workman," 133. 
 Legal Representatives of Employer. 
 
 action to lie ajiainwt, 13H. 
 Limitation of Action for, 137, W2. 
 
 coniniencenicnt of action, 841. 
 
 how timu ('oinputoil, 144, l-VJ. 
 Machinery, meaning of, 148. 
 
 burden of i)roof whuro injury cau8e<l by, 8.38. 
 
 Negligence. i.n no 
 
 of person to wlio.se orders workman wa« hound to conform, 1.14, 14y, 
 
 of railway employee, 134, l.")<). 
 
 of su])erinten(lent, 131, 14,'). 
 Notice of Injury. 
 
 form of, l:«, l:!i», l.-)3. 
 
 not dis|)ense(l witli hy Act of 1899, 841. 
 
 service of, 13!), l.')3. 
 
 want of, when not a hai', 13!t, 1 ")3. 
 
 Notice , , , ,„„ 
 
 of intention to rely on lack of notice of injury of non-employment as a d.'fence, IdW. 
 
 Orders to which workman was bound to conform, 134, 149. 150. 
 Penalties paid to workman to be deducted from compensation, 138. 
 
 Plant 
 
 uuist 1)0 connected with business of employer, 149. 
 what included by, 149. 
 what is not, 149. 
 
 . Railways. 
 
 how far subjectt to the Act, 146, l.")0. 
 injury by negligence of signalman, etc., 135. 
 to worknum by ina\irticient headroom, 133. 
 unpacked frogs, 13(1. 
 
 space between rails, 136. 
 negligence of persons in charge of trains on, l.W. 
 what is a train, 150. 
 
 " Railway Servant." 
 
 meaning of in Act, 1.34, 146. 
 Rules or by laws of Employer. 
 
 when Acts done under, entitle workman to recover, l.«, l.W, ISU. 
 Statement of Claim. 
 
 form of, 140. 
 Stay of several actions to abide result of one, 142. 
 
 how obtained, 143. 
 
 removal of, 143. 
 
 terms on which granted, 143. 
 
 varying order for, 143. 
 "Superintendence." 
 
 meaning of in Act, 133, 145. 
 Superintendent. 
 
 negligence of to entitle workman to recover, 134. 
 
 Ways, what are, 148. 
 
924* 
 
 INDEX. 
 
 c 
 
 < 
 
 5 
 
 09 
 
 > 
 
 Workmen's Compensation for Injuries Act— ContinuKd, 
 " Workman." 
 
 nu'iuiiiig of in Act, l.SH. 
 ■vlieii iKit within Act, 145. 
 when within Act, ll'i. 
 Works, 
 
 wliat arc, 1 18. 
 
 Workmen's Compensation for Iniuries Act, 1899. The (62 Vic c. 18) 63'i. 
 
 Act to l)c rciid with R. S. O. c. lUO, S44. 
 Acts iillcctcil l)y, 849. 
 
 Action, 
 
 proceedin^M by nistcad of arbitration, 840, 
 
 rigiit to hiing, 844. 
 
 time tor coiniiicncing, extension of, 840. 
 
 Agreement as to compensation, 
 
 filing of, 84.'?. 
 Amount recoverable, 844. 
 Arbitration, 
 
 settlonient of cluinis hy, 839, 844. 
 
 appeal fruni, 843. 
 
 appointment for, 841. 
 
 arbitration Act not to apply to, 844. 
 
 award, 843. 
 
 costs of, 843. 
 
 defendant may a|iply for, 840. 
 
 extension of time by, 840. 
 
 notice of, 840. 
 
 (piestions of law, reference of, 842, 
 
 objection to, 840. 
 
 pleadings in, 84'2. 
 
 HJiorlhand writer, 84"2. 
 
 statement of defence in, 841. 
 
 stay of proceedings on, 841. 
 
 witnesses and evidence in, 84'2. 
 
 venue in, 839. 
 
 Burden of proof where injury caused by certain machine' y, 838, 849. 
 Forms, 
 
 use of, 844, 845, 846, 847. 
 Interpretation, 838. 
 Judge 01 County Court, 
 
 ap])lications to instead of to .Judge of High Court, 839. 
 
 duties of, 843. 
 
 fees of, 843. 
 
 of another county ni.ay act by request, 842. 
 
 powers of, 842. 
 lien for costs on sum awarded, 843. 
 notice of enquiry, 841. 
 questions of law, 
 
 Comity Court Judge may refer, 842. 
 I '.les as to proceedings, 844. 
 Written Promises and Acknowledgments of Liability, Act respecting (R..S.O. 
 
 c. 14(1), 301. 
 
 (See also LIMITATIONS OF ACTIONS, REAL PRaPEUTY LIMITATION AoT. 
 
 causes of action to which are applicable, 304. 
 
 origin of Act, 304. 
 By whom must be made, 3%. 
 Endorsement by payee, effect of, 302, 308. 
 Infants, 302, 308. 
 Joint contractors. 
 
 acknowledgment by one of not to bind others, 301, 308. 
 
 judgment against one of where plaintiff barred as against others, 302. 
 New time for payment. 
 
 effect of fixing, 300. 
 
INDEX. 
 
 925 
 
 18) 633. 
 
 Written Promises and Acknowledgments of LiabUity-C'oH/.»med. 
 Parol evidence. 
 
 when admissible, 307. 
 requisites of, 304, 307. 
 
 must he made hy the debtor, 306. 
 
 to the creditor, 306. 
 what have been lield to be, 304, 305. 
 " " not to be, 307. 
 
 conditional promises where the condition lia.s been performed, 305. 
 where new time (;f payment specified, 306. 
 Signature, necessity for, 307. 
 
 Theory upon whicli are founded, 297, 304. * 
 
 When required to take case out of the Statute of Limitations, 301. 
 Consideration for promise to answer for another need not be In writing, 302 
 Eatiflcationofpromises by infants, 302, 308. ^ ^ , .4.. „ «» 
 
 Representations as to character, credit, etc., of third party to be in writing, 302. 
 
 Setoff, 
 
 application of Acts to, 302. 
 
 consideration need not appear in memorandum under, .WZ. 
 
 Statute of frauds, , ^ c . .■ ono 
 
 sec 17 to apply to contracts for goods to be delivered at a future time, S^rz. 
 
 Time when may he made, 307. 
 
 To whom must be made, 297, 298, 306. 
 
 r('S})ecting (R.JS.O. 
 Act, 
 
 ■H, 30-J.