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 1 
 
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1 
 
 THE 
 
 COMMON LAW PROCEDURE ACT; 
 
 AND OTHER ACTS 
 
 RELATING TO THE PRACTICE 
 
 or 
 
 THE SUPERIOR COURTS OF COMMON LAW ; 
 
 THE RULES OF COURT ; 
 
 WITH NOTES. 
 
 ROBERT A. HARRISON, ESQ., D.C.L., 
 
 ONE OF REB MiUESTY'l C0CK8EL. 
 
 SECOUID EIDITIOIT. 
 
 TORONTO: 
 
 COPP, CLARK dc CO. KING STREET EAST. 
 
 LONDON: 
 
 STEVENS k HATNES, 11 BELL YARD, TEMPLE BAR. 
 
 1870. 
 
esq 
 \rio 
 
 Entered according to Act of Provincial Legislature, in the year of our Lonl one 
 tlioUH.ind ciglit hundred and seTcnty, by Rudkrt A. Harbison, Esq., D.C.L., one of 
 Ucr iliijesty's Connsvl, in the Office of the llegiatrar of the Dominion of Canada. 
 
one 
 leof 
 
 TO THE HONORABLE 
 
 JOHN SANDFIELD MACDONALD, Q.Q. 
 
 ATTORNEY GENERAL 
 
 or 
 
 THE PROVINCE OF ONTARIO, 
 IN THE DOMINION OP CANADA, 
 
 THIS EDITION 
 
 RESPBCTPULLY INSCRIBED. 
 
PREFACE 
 
 TO THE SECOND EDITION. 
 
 Encouraged hy the success of the first edition of the " Comtnon Law 
 Procedure Act," the Ed tor ventures to submit a second edition for the 
 acceptance of the legal jirofession. 
 
 The eilition now presented is, like the former one, iho result of much 
 labour, and is, it is believed, much more complete than any annotated 
 edition of the Common Law Procedure Acts hitherto published. 
 
 In the preparation of this as well as the former edition, it has been the 
 aim of the Editor not only to collect and arrange in convenient form the 
 (Redded cases bearing on the construction of the acts and rules annnotatcd, 
 but to expound the principles which govern the decisions by the light of 
 the decisions themselves. 
 
 Considering however that the decided cases are now so numerous (not 
 less than 8,571 having been referred to in this edition), and so widely 
 scattered, the Editor claims indulgence if any have been inadvertently 
 omitted. 
 
 For the benefit of English subscribers, a table precedes the work in 
 which is given each section of the English Common Law Procedure Acts 
 and the corresponding section of the Canadian Act This will enable 
 English subscribers at once to turn to such decisions as have been col- 
 lected under the different sections of the Canadian Act, corresponding with 
 sections of the English Common Law Procedure Acts. 
 
 The Editor begs to acknowledge the assistance which he has receive^ 
 irom Mr. F. J. Joseph, Barrister-at-law, who verified all the cases to which 
 reference is made in the notes ; and to Mr. H. C.W.Wethey, Barrister-at-law, 
 who prepared the list of cases and general index. Mr. Joseph also super- 
 intended the passing of the work through the press. Both gentlemen have 
 done much towards making the work as accurate, useful, and reliable, 
 as possible. 
 
Vi PREFACE TO THE SECOND EDITION. 
 
 Tho Common Law Procedure Act has not so far sufTcrcd much from tI;o 
 restless disposition of law makers. Tho reason no doubt is that tho act is 
 a complete code of practice, was well considered before it was passed, since 
 its passing has bccomo well understood and appreciated by tho legal pro- 
 fession, and has proved itself of great public utility. 
 
 The desire for changing laws is more noticeable in new than in old 
 countries. In whatever country it unduly manifests itself, it is an unmixed 
 evil and a sore discouragement to law authors. All men are supposed to 
 understand tho law. Ignorance of it is sometimes punished as a crime, 
 and often followed by serious pecuniary losses. But with two legislatures 
 annually at work, and tho annual product a multitude of statutes, some 
 amending, some repealing, some explaining, and some consolidating exist- 
 ing statutes on all conceivable subjects, there is necessarily so much 
 confusion as to render it very difficult even for men trained to the law as a 
 profession so to follow the law through all its changes as to understand 
 it in all its bearings. 
 
 E.VGLEFIELD, ToBONTO, 
 
 December, 18V0. 
 
 ■r 
 
rom the 
 10 act 13 
 !(1, since 
 gal pro- 
 
 1 in oltl 
 unmixed 
 posed to 
 a crime, 
 gislaturcs 
 tes, some 
 ting exist- 
 so much 
 c law as a 
 indcrstand 
 
 PREFACE 
 
 TO THE FIRST EDITION. 
 
 Tun law, and the administration of tho law, are two things essentially 
 difTertnt. Hy tho former we understand tho great body of Icgul rights 
 and liabilities which teach that justice should render to every man his 
 due. By the latter wo understand tho practice of tho Courts, or the 
 machinery used for dispensing justice. All laws are designed either to 
 prevent a mischief, to remedy it if committed, or to compensate the 
 sufferer if no other remedy can he applied. Tho proper application of the 
 remedy is thus of vital importance to tho duo dispensation of justice. 
 The spirit of modern legislation is to make tho remedy coextensive with 
 the mischief intended to bo prevented or redressed. For this tho Courts 
 have at all times struggled ; for this the Legislature has laboured ; and 
 for this has the Common Law Procedure Act, 1856, been passed. 
 
 I propose, first, briefly to consider tho nature of tho Act ; and, secondly, 
 the manner in which I have endeavoured to expound it 
 
 Fii'st. — Mr. Whiteside, a leading law reformer of Great Britain, in one 
 of his masterly speeches, said, ho objected to tho triumph of form over 
 substance — of technicality over truth. lie objected also to a suitor being 
 driven like a shuttlecock from a Court of Law to a Court of Equity, and 
 being sent to Chancery to be (Enabled to go to Common Law. He hoped 
 that a remedy would bo applied to these abuses, and thought that to be 
 satisfactory, tho remedy should bo searching, cheap and comprehensive. 
 The remedy so forcibly invoked has been partially applied in England, in 
 Ireland, and in Upper Canada: in England by the Acts of 30th June, 1852, 
 and 12th August, 1854; in Ireland by tho Acts of 28th August, 1853, and 
 29th July, 1850 ; and in Upper Canada by the Acts of 19th Juno, 1856, and 
 10th June, 1857. Here and at homo the like remedy has been applied 
 to like abuses. The triumph of form over substance is carefully guarded 
 against by the enactment of general rules of pleading, extensive powers 
 of reference, and liberal powers of amendment. Tho cruelty of driving 
 a suitor from Court to Court in the manner described by Mr. Whiteside 
 is also, to a great extent, prevented by the enlargement of the jurisdiction 
 of the Courts of Common Law. The remedy is searching, because of the 
 powers given to examine parties to a cause and their witnesses, under 
 
Tin 
 
 PRErACR TO TilK FIRST EDITION. 
 
 certain circumstances, by interrogatories. It is cheap, because needless 
 steps in n cause have bcc-n abolishe<l, and tlio remaining steps made easy 
 and simple. It is comprehensive, ))ecauso tlio whole course of a suit, 
 from summons to execution, is made the subject of legislation in a single 
 Statute. 
 
 As to ricadiiuj : Special demurrers are abolished, ond forms are pro- 
 vided for almost every case which can occur in practice. These forms r.ro 
 simide, concise and intelligible. The work is done to the hand of the 
 practitioner in a manner convenient and comfilete. 
 
 As to References: Submissions of all conceivable forms are provided 
 for, and references of all kinds are much facilitated. There is a strong 
 desire evinced to encourage references to arbitration: indeed in matters 
 of account there is more thon encouragement, for there is compulsion. As 
 to cases wherein there is no compulsion, there is strict and anxious sur- 
 veillance. Where the parties to any contract, anticipating the possibility 
 of difforcnces arising, have stipulated jtlmt they shall bo referred to arbi- 
 tration, there is provision made for staying any action that may l)e brought 
 in disregard of such stipulation. If the referee named by the parties bo 
 dead, the Court may appoint a substitute. If there bo no provision for 
 the appointment of an umpire when one is necessary, the Court may 
 appoint one of its own choosing. If there be several arbitrators, one 
 of whom dies or becomes incapacitated, a successor may be appointed. 
 
 As to Amendments : There is almost unlimited discretion. Tlic Judges 
 have at all times the power of amending all defects and errors in any 
 proceeding in any stage of the cause, whether there bo anything in writing 
 to amend by or not. All amendments necessary to the determining of the 
 real question in controversy in tho existing suit may bo made. 
 
 As to the Enlargement of jurisdiction : Tho Courts of Common Law 
 have conferred upon them, to some extent, powers to give tho redress 
 necessary to protect and to vindicate common law rights, and to prevent 
 wrongs, whether existing or likely to happen unless prevented. With 
 these objects tho strong arm of injunction is added, and tho arm of man- 
 damus is strengthened. The power to entertain equitable defences, in 
 consequence of tho unsuited machinery of the Courts, is however, very 
 limited ; but, so far as bestowed upon tho Coi'rts of Common Law, is an 
 enlargement of their jurisdiction. This enlargement does not at all oust 
 tho Court of Chancery of any portion of its jurisdiction ; in truth, a great 
 portion of the latter still remains exclusive. 
 
 As to the Comprehensiveness of the Act, a glance at the repealing clause 
 will convey some idea of the change made in our statute law. Little is 
 left either of the Old King's Bench Act of 1822, or of the Common Pleas 
 Act of 1849, or of tho Act of 1853, regulating and amending the practice 
 in these Courts. The Legislature, while engaged in the work of improve- 
 
PREFACE TO THE FIIIST EDITION. 
 
 inont, have gone fur towards removing obHcuritics and abiiseB. Tho Acts 
 respecting Absconding Debtors, Absent DefcndantM and InHolvont Debtors 
 have been, in general, wiped from tho Statute book, and restored in a sim- 
 ple and consolidated form. The Absconding Debtors' law, from session to 
 session of the FiOgislatiire, became obscure, owing to tho accumulation of 
 amending Statutes. Tho Absent Defendants' Act, nearly allied to tho 
 Abs.'ondiiig Debtors' Act, served to make confusion more confounded. 
 Tho Insolvent Del)tor.s' Acts wore nearly cfleto from sheer ron-uscr of 
 many of their provisions. There was a widely scattered heap of law, of 
 which a great pait was felt to bo rubl)ish, and therefore removed. 
 
 It would bo too tedious hero to notice tho changes in detail made in thi* 
 steps of a cause from process to execution. Suflico it to say, that forma 
 of action have been in a measure abolished ; tliat with regard to tho ser- 
 vice and renewal of writs of mesne process, very decided improv >;nt!» 
 arc enacted ; that the appearance of defendants is placed upon a rational 
 and intelligible. basis ; thni unusual facilities aro held out for tho Hpcedy 
 trial of causes, and after trial equal facilities, for speedy execution ; laat 
 the description >'* property made subject to execution is much extended ; 
 and that for tho revival of judgments when obtained wiso and beneficial 
 provision is made. 
 
 Second. — A new Act is not always a new law. Tho Common Iiw 
 Procedure Act is not so much a new law as a re-enactment, with amcn*".- 
 ments, of the old. For the sake of convenience, tho provisions arc brought 
 together in a compact and logical form ; but tho provisions themselves aro 
 for tho most part old and familiar. They carry with them a long train of 
 decisions. To classify these decisions, and to bring them under tho cyo 
 in a convenient form, has been one of my great objects. Tho less a new 
 statute unsettles old and established practice, so far as consistent with 
 tho object of its enactment, tho bettor. Tho Courts, in a long scries of 
 decisions, havo given to particular words and expressions a detinito 
 meaning. Tho Legislature, in Acts subsequently passed, havo used theso 
 words and expressions over and over again. Thus tho language becomes 
 familiar and well known to Judges and lawyers under the epithet of legal 
 phraseology. Hence, when necessary to bring together Acts or legislative 
 enactments upon a particular branch of law or of practice, tho collection 
 ought to be made as far as possible in the very words of tho original text. 
 Stability is more to be desired than novelty. To attain stability there 
 must be certainty, and to attain certainty there must be the preservation 
 of well-understood words and expressions. When we reflect upon the 
 cost, the trouble, and the vexation of working out an entirely new legisla- 
 tive provision, we are forced to acknowledge the value of old phraseology. 
 
 One important characteristic of our Common Law Procedure Act is that 
 in it words are used as lawyers have at all times used them. We are 
 
PREFACE TO XnE FIRST EDITION. 
 
 enabled to fall back upon the old, for tho construction of the new law. 
 Impressed with tho value of decided cases, I have not failed to open up 
 to tho consideration of my professional brethren decisions apparently 
 consigned to oblivion, but in truth as necessary for use as when Orst 
 delivered from tho Bench. Fairly to understand a new law, which is in 
 nine cases out of ten a remedial law, we must not spurn that which is by 
 the alteration thrown aside. 
 
 We speak of a Statute such as the Common Law Procedure Act beini; 
 remedial — remedial of what ? Of some law existing when it passed. Is It 
 not then necessary, in order to apply the remedy, to have a knowledge of 
 tho mischief intended to bo remedied ? Before a lawj'er can use a remedial 
 statute correctly and satisfactorily, he must generally have some knowledge 
 of the pre-existing law. Actuated by thoughts such as these, in stating 
 the changes effected by the Common Law Procedure Act, I have done so by 
 briefly showing what the practice was antecedently, and so presented the 
 law as modified or otherwise altered. A new code of practice is enacted. 
 Why ? Because tho old code was defective. Then in what was it defective? 
 Tho attempt mentally to answer this question opens up a true idea of the 
 work to be done. The real principle of expounding a remedial statute is, 
 T conceive, such as I have described. While acting up to this standard, my 
 main object has been, by exhibiting what tho law was, concisely to show 
 what the law is, and in such a manner that it will impre^js itself upon the 
 memory of tho reader or practitioner. This I have done particularly in 
 noting a preamble introducing a number of sections on a given branch 
 of practice. One example may be noticed. It is on page 94, being note q* 
 to tho preamble beginning, "And as regards proceedings against abscond- 
 ing debtors," &c. In carrying out this plan, I have upon all occasions, 
 when convenient, introduced tho views of the English Common Law Com- 
 missioners, usually in their own words. The result is, that both reports 
 of the Commissioners are embodied in my notes, instead of being pub- 
 lished, as originally intended, in a separate form. 
 
 I may be allowed to observe, that I have had a great advantage over 
 my fellow labourers in England, and have endeavored to avail myself of 
 it so as to render my book more complete and reliable than any similar 
 work hitherto published either in England or Ireland. I am the latest 
 commentator on the Common Law Procedure Acts, and have not only the 
 benefit of the experience of my predecessors, but the benefit of decisions 
 pronounced by the Courts since the publication of their works. It is only 
 by degrees that a new or even a modified practice " settles down." Many 
 questions of construction are sure to arise and to require practical exposi- 
 tion. As the practice is studied and familiarised, and as doubtful points 
 receive adjudication, its application becomes simple and easy to the i rac- 
 
 • See ncte a page 470. 
 
PREFACE TO TOE FIRST EDITION. 
 
 Zl 
 
 titioncr. It is, however, a work of gradual development, and it is only as 
 point after point of doubtful construction is decided, that misapprehension 
 is obviated and certainty secured. 
 
 In considering each section annotated, I have endeavoured to get at 
 the reason of the section and the principles involved in it. The meaning 
 of an Act of Parliament, as well as a single section, can only be ascer- 
 tained by reference to the principle which governs it. The Connnon 
 Law Procedure Act is passed with a view "to simplify and expedite " 
 proceediij^s in the Superior Courts of Common Law. The County Courts 
 Procednvo Act has a similar declared object. Two cognate principles, as 
 applied to the whole Act, are thus enunciated: the one, to simplify; the 
 other, t.' expedite. This much predicated, it is for the Court to advance 
 the objects proposed, and so carry out the principles involved. The known 
 aptness of the Court to respect preced'.,.:s is a source whence there Hows 
 much <:nod. TSut owing to human fradty former decisions are sometimes 
 reluciiuitly doubted or overruled ; and from this arises a desire for the 
 very latest decisions on a doubtful point. "When an old case is cited, the 
 question is often put by the Court — "Is there no later authority tlian 
 that?" The necessity for the latest cases, when .solving a doubt, is 
 suiruicntly known to all practitioners to render any further reference to 
 it here unnecessary. It only remains for mo to say, that I have been 
 most careful in noting the late decisions, sheet by sheet, as this work went 
 to press. Those since decided will be found mentioned in the Addend.i. 
 More than ni?ie hundred cases, decided since the passing of the English Acts 
 and of our Acts upon the construction of one or other of them, have been 
 noted in the work. No case, however, whether early or late, should, if pos- 
 sible, be viewed otherwise than as controlled by some governing principle. 
 In matters of practice certain principles may bo discovered which are of 
 intrinsic value as the key notes of a great varict}- of cases. "When it is laid 
 down in general terms that he who endeavours to upset an opponent upon 
 8ome ground of irregularity must be strictly regular himself, we have 
 before us a principle applicable to every case of irregularity. "When wo 
 are informed that the law favours the liberty of the subject, we reasonably 
 conclude that in a proceeding to restrain the subject of that liberty there 
 must bo no irregularity. When the Court sets aside an arrest because 
 the aflidavit to hold to bail does not state that the debt is " due," we know 
 that it is set aside not merely because there is an authorit}- in point, but 
 because that authority is consistent with reason and accords ^ith the 
 general principle that the liberty of the subject is to be favoured. Tiio 
 Court in effect decides that the affidavit omits to make out a good case for 
 depriving the subject of his liberty. 
 
 My only ambition in compiling this work was to produce a useful, 
 complete and reliable vado mecum for the Icgil i^.ofession in Upper Canada. 
 
sn 
 
 PREFACE TO THE FIRST EDITION. 
 
 The only merit to which 1 lay claim is industry, and if that have not been 
 misapplied I am satisfied. I lay no claim to any display of originality of 
 conception, but have contented myself with treading the beaten but some- 
 times uncertain paths of the law. I have striven in my progress to prepare 
 the way for those who may have occasion to travel one or all of the paths 
 through which I have travelled. In some places, perhaps, I have over- 
 stepped the limits of authority. In some instances I may have assumed that 
 to be law for which there is no authority ; but where such has been done it 
 has not been done without a due sense of responsibility. Though law is 
 said to bo a science, it is in truth a jnost perplexing science. Though 
 Reports and reported cases outstrip numerical calculation, yet cases do arise 
 for which there is no express authority. Cases will arise which the most 
 astute never could foresee ; and still the law is for all cases, and must bo 
 applied to all cases so far as reason and anology can suggest the mode of 
 application. In the absence of decided cases I have frequently felt myself 
 bound to state my impression by wjiy of suggestion. That such impres- 
 sions are free from error is more than I can expect. My only object in 
 suggesting a construction unsupported by authority, was the desire of 
 pointing the reader's attention towards what miglit be the right direction. 
 In palliation of any errors that may be discovered, I have only to draw 
 attention to the circumstances mdcr which my impressif^ns wre formed 
 Before me there was a new Act, with scarcely a decision of our Courts 
 My task was to explain and expound it. I had not the advantage upon 
 every point of doubt of an able argument from contending counsel ; but 
 even Judges, notwithstanding these advantages, are failablc. Those who 
 are accustomed to speculate on the construction of new laws will, I am 
 confident, be the first to appreciate my difficulties, and the readiest to 
 bestow indulgence when needed. Many friends, upon whose knowledge 
 and standing I have been too glad to rely, have kindly read the proof 
 sheets, and so fortified my positions. Among these, I may mention the 
 names of Toe Honourable Chief Justice Macaulay and IIis Honour 
 Judge Gowan. Every page of the book, before it was worked off, was 
 submitted to their perusal, and it is to me as much a duty as a pleasure 
 thus publicly to acknowledge the advice and assistance with which I 
 have been honoured. To Adam Wilson, Esq., Q. C, and Henky Eccles, 
 Esq., Q. C, I have to express my thanks for similar services. The note, 
 as to equitable defences have also been submitted to and approved by a 
 leading member of the Equity Bar. To many others, whose names need 
 not be givtn, I am greatly obliged for advice and assistance. 
 
 It is unnecessary to mention to any one who may open this volume, 
 that it has been ^ work of great labour, not at all lightened by the respon- 
 sibility under which I wrote. The immense number of cases consulted 
 with a view to the extraction of guiding principles, being no less than 
 
PREFACE TO THE FIRST EDITION. 
 
 Xiii 
 
 iix thousand, and the placing of these cases, when approved, in proper 
 order, has been a tnsk requiring no ordinary perseverance and patience. 
 This, too, was done with the prospect of pecuniary loss, consequent upon 
 the size of the work and the low price at which it was promised. Bearing 
 all these things in mind, I submit the work to those for whose benefit it 
 is designed, and only ask of them a candid consideration and a fair judg- 
 ment — more I do not ask, less I cannot expect. For the completeness of 
 the Index of Subjects I am indebted to "W. C. Keele, Esq., and of the 
 Index of Cases to Mu. David Alexandeu, Student at Law. 
 
 I have, as promised, added the General Rules of Practice and Pleading, 
 with copious notes upon the same plan as the Statutes. They add to the 
 completeness of the volume, so as to make it, as intended, a ready, com- 
 plete and reliable book of practice for the Common Law Practitioner. 
 The Common Law Procedure Acts of 1857 are also added, but without 
 notes. It was found that the work had grown to such dimensions under 
 my hands, that toannotate them would make the volume much too bulky, 
 and add much to the delay which has already taken place in its issue from 
 the press. As I believe a verj' general impression was entertained that this 
 volume would have appeared at a much earlier period than it does, I can 
 only say in excuse that it was not possible to furnish the book in less time, 
 while making it as complete as my anxiety to serve the profession led 
 me to believe was necessary. A contrary jourse might have, as it is well 
 known, saved me much trouble and no little expense. It is now, however, 
 in my power to assert, with those kind friends who at much personal 
 inconvenience to themselves lent me the aid of ripe experience, that the 
 book is of its kind the most complete published. It contains twice the 
 number of cases cited in the elaborate work of Fixlason, and four times 
 the number of casos cited in Kekr, Thompson, Makkiia-w, or any other 
 work in general use. This statement I make in no boastful spirit, but for 
 the simple purpose of conveying to those inexperienced in the writing of 
 books some idea of my protracted labour, and as an apology for what other- 
 wise might be thought inexcu.sable delay. 
 
 B. A. II. 
 Queen Stekkt "West, 
 
 February, 1838. 
 
Ta 
 
 Ai3£ 
 
 Eje 
 
 Tl£E 
 EXE< 
 
 The 
 The 
 
 Reoc 
 
CONTENTS. 
 
 The Common Law Procedure Act — 
 
 Con. Stat. U. C. cap. 22 1 
 
 Wbits of Mandamus and Injunction— 
 
 Con. Stat. U. C. cap. 23 459 
 
 Absconding Debtors — 
 
 Con. Stat. U. C. cap. 25 476 
 
 Ejectment — 
 
 Con. Stat U. C. cap. 27 503 
 
 TiiE Common Law Procedure Amendment Acta — 
 
 Stat. Can. 29 »fe 30 Vic. cap. 42 685 
 
 Stat. Ont. 31 Vic. cap. 24 687 
 
 Executions against Goods and Lands — 
 
 Stat. Ont. 31 Vic. cap. 25 691 
 
 Toe Law Reform Act — 
 
 Stat. Ont. 32 Vic. cap. 6 593 
 
 Tdk Law Reform Amendment Acts— 
 
 Stat. Ont. 33 Vic. cap. 7 60« 
 
 Stat. Ont. 83 Vic. cap. 8 612 
 
 RsouLiK Generales — 
 
 As to Attorneys 614 
 
 As to Practice 618 
 
 As to Pleading 706 
 
 Miscellaneous , 759 
 
I 
 
 , Ade V. i" 
 
 ' 32ii 
 
 ■ ■'iveran: 
 
 : -■^gacio v 
 Ai,'assiz I 
 A'iierii V. 
 Aitehesoi 
 Aitken, li 
 
 Alclnou3 
 Alcock V. 
 
 Alden v. ; 
 Alder v. ( 
 
 ; Alderley ^ 
 \ Aldurson i 
 B 
 
 i 
 
TABLE OF CASES CITED. 
 
 1 
 
 Abbott V. Abbott, '.'SO. 
 
 el ux. V. Klotiuld, 87. 
 
 V. I'.iilt, ;.:17. 
 
 V. Ilu-.'lf.v. 117. 
 
 V. Smith, 7!'. 
 
 Abernotliv v. Ilultliin.son, 472. 
 
 -v. I'iiton, 111. 
 
 Aberystwitb I'l-oimmiule Pier Co. v. 
 C'ooim-, 1 1. 
 
 Ablctt V. Hiish;;iii, in, 11. 
 
 Ablcy V. Dull'. ;!:!.■>, ii^T, 
 
 Abrnlmiu v. ("dok, 6l'7. 
 
 AbraliJiiiis v. Davison, C84. 
 
 Abrnnis v. Moon, 7;.'0. 
 
 Adair v. Walh.ce, 4M3. 
 
 Adams v, At.diTW.-*, 128, 152, 634. 
 
 V. Ati<iii.-on, 311. 
 
 V. Bains, .")ti8. 
 
 V. IJrowii, (V-il. 
 
 V. G. W. Kaihvay Co., 335. 
 
 V. Jont's, 1 Iti. 
 
 V. Llovd i-t al, 260, 261, 262. 
 
 V. Talk, l-J-2, 722. 
 
 V. Sniilii, .•!1'.). 
 
 .Adanisoii v. Notd, 7m2. 
 
 [AddinLcton ft al v. Ciiesshire, Re, 244. 
 
 Addison v. ( 'oibey, -22. 
 
 V. Overi'iid, 71. 
 
 _ Ade V. Stubbs, ();").'). 
 
 ', Adkins v. Aiidi-rson, 133. 
 
 ..idsluMd V. Ujiton ut ul, 288, S25, 326, 
 328, 510, r„s;i. 
 
 '..'■vera.nt v. Sbrivcr, 568. 
 
 .:''g.".cio V. Forbos ct al, 70. 
 
 Aj^assiz ut ux. v. Palmer, 412. 
 
 A';em v. Mnguire, 281. 
 
 Aitcrieson v. t'ar;;ay, 222. 
 
 Aitken, lie, 617. 
 
 V. Slalcolm, 85. 
 
 Alcinou:j V. Miijvou, 116. 
 , Alcock V. Royal Exob. Ins. Co., 295. 
 
 et al V. Taylor, 718. 
 
 et al V. Wilsbaw, 626. 
 
 Aldon V. Boomer, 31)4. 
 I Alder V. Chip, 812, 320. 
 lAlderley v. JStorey, 323. 
 I AlJersoii v. Johnson, 92. 
 
 Aldi.ss V. linry^oss, CO'.). 
 
 Aldred v. Ilick.s, 18. 
 
 Aldrij^je v. CJ. \V. llailway Co., 2 '5. 
 
 Aleberry v. Walby, 87. 
 
 Alexander v. Alexander, 275. 
 
 V. llervoy, 312. 
 
 V. Milton, 67'J. 
 
 V. Townley, 140. 
 
 V. Williams, 347. 
 
 Alford V. Fellows, 32V). 
 
 V. Tatnell, 178. 
 
 Allain v. Cimmber.'?, 031. 
 Allan V. Brown, 221. 
 
 V. Dunn, 120. 
 
 V. Rogers, 571. 
 
 Allen V. Andrews, 412. 
 
 V. Boice, 224. 
 
 et al V. Bussey, 14. 
 
 V. Francis, 250. 
 
 V. Hopkins, 110. 
 
 V. Maxey, 78. 
 
 V. Pink, 199,498, 
 
 V. Cork & Bandon R. Co., loo. 
 
 V. Walker, 718. 
 
 V. Yoxall, 7o2. 
 
 Allenborough v. Thompson, 10. 
 Allenby v. Proudloek et al, 225, 220, 
 
 693, 711. 
 Allison V. Wagstaff, 316, 354. 
 
 V. Midland Railway Co., 154. 
 
 Allman et u.x. v. Rensel, 32. 
 Allott V. Boarcroft, 325. 
 Allport V. Baldwin, 702. 
 
 V. Nutt, 718. 
 
 AUsopp V. Smith, 346. 
 Alston et al v. Mills, 722. 
 
 V. Underhilf, 0. 
 
 Alum V. Boultbee, 648. 
 
 Amery v. Smalridge, 053. 
 
 Ames et nl v. Ragg et al, 035. 
 
 V. Trustees BirkeniieaJ Docks, 
 
 393, 394. 
 Amies et al v. Kelsey, 274. 
 Amis V. Lloj'd, 575. 
 Amor V. Blofield, 423. 
 
 V. Cuthbert et al, 125. 
 
 Amos V. Hughes, 292. 
 
xvm 
 
 TABLE OF CASES CITED. 
 
 Amos et nl v Tcmperley, 85. 
 Aneil v. Brickcr. lU. 
 Andtrson v. Anderson, 140. 
 
 ot al V. ChapmBn et al, 144. 
 
 V. Cnl\er et al, 288. 
 
 V. Fitzgerald, 633, 
 
 V. Fuller, 220. 
 
 V. Radcliffe et ol, 729. 
 
 V. Smith, 722. 
 
 V, Southern, r>86. 
 
 Andrew et ux. v. Pell, 270. 
 Andrews et al v. Diggs, 686. 
 
 V. Eaton, 241, 248. 
 
 V. Robertson et al, 884, 675. 
 
 V. Sharp, 886. 
 
 V. Page, 816, S53. 
 
 Any:L'll V. Felgate, 2(»9. 
 An<ilo-Au8trian Bank, In re The, 246. 
 Anglo-Italian Bank, Liquidators of the, 
 
 In re, and Francois deRosatry, 236. 
 
 237. 
 Angus V. Coppard et al, 9, 25, 26. 
 
 V. Medwin et al, 25. 
 
 Ankerstein v. Clarke et al, 87. 
 Anon V. Johnson, 27. 
 
 V. Mills, 244. 
 
 V. Parr, 263. 
 
 Anonymous (Anon.), 13, 18, 19, 27, 62, 
 163, 177, 178, 179, 193, 197, 119, 
 227, 268, 294, 347, 352, 878, 381, 
 467, 478, 615, 616, 662, 617. 563, 
 628, 631, 634, 639, 663, 664, 666, 
 606, 668, 679, 680, 683, 684, 692. 
 
 Ansell V. Evans, 214, 218, 244. 
 
 Ansley et al v. Edwards, 635. 
 
 Antram v. Chace et al, 240. 
 
 Apothecaries' Co. v. Bentley, 292. 
 
 Appleyard V. Todd, 331. 
 
 Arbon v. Fussell, 302. 
 
 Arbuthnot v. Leslie, 632. 
 
 Archbishop of Tuam v. McDonnell,288. 
 
 Archer v. English et al, 122. 
 
 V. Frowde, 621. 
 
 V. Gerrard, 141, 147. 
 
 V. James et al, 078. 
 
 V. McCaldin, 167. 
 
 Archdall^v. Supple, 633. 
 
 Arden v. Goodacre, 380. 
 
 et al V. Jones, 11, 68. 
 
 V. Fallen, 97, 708. 
 
 Archland v. Hall, 471. 
 
 Armitoge v. Grafton, 682. 
 
 V, Rigby, 38, 878. 
 
 Armstrong v. Anderson et al, 85. 
 
 V. Benjamin, 330. 
 
 V. Bowdidge, 628. 
 
 V. Evans, 166. 
 
 V. Fuller, 426. 
 
 Armstrong v. Norton, S.'il. 
 
 V. Tunpiand, 94. 
 
 Arndt v. Porter, 04. 
 Arnfield v. Burgin ct al, 123. 
 Arnold v. Andrews, 88, 668. 
 
 V. Fish, 53. 
 
 Arrowsmith v. Ingle, 667. 
 Arthur v. Clough et al, 395. 
 
 V. Lier, 335. 
 
 Arundk.Il v. Hayes et al, 293. 
 Ash et al v. Pouppcvillo, 115. 
 Asliby v. Ashby, 84. 
 
 ct al V. Bates, 293. 
 
 V. Minnett, 724, 730. 
 
 Ashcroft v. Foulkes, 262, 253. 
 
 Asher et ux. v.Whitlock, 477, 607, 729. 
 
 Ashley v. Brown, 284. 
 
 v. Flaxraan, 827. 
 
 Ashmore v. Hardy et al, 780. 
 
 V. Rupley, 692. 
 
 Ashton V. McMillan, 433. 
 
 V. Poynier, 422. 
 
 A^in V. London & N. W. R. Co. 43. 
 
 V. Parkin, 650, 651. 
 
 Astley v. Young, 144. 
 Aston, In re, 297. 
 
 V. George, 244. 
 
 v. Grant. 632. 
 
 v. Greathead, 62. 
 
 v. Perkes et al, 119, 122. 
 
 Athenteum Life Assur. Co. v. Pooley 
 
 et al, 470. 
 Atkins, In re, 209. 
 
 V. Meredith, 281. 
 
 Atkinson et al v Davies, 132, 719. 
 
 V. Fosboke, 206. 
 
 V. Hornby, 7, 712. 
 
 v. Howell, 24. 
 
 V. Raleigh et al, 311, 723. 
 
 V. Thomson, 680. 
 
 V. Warne, 128. 
 
 Atter V. Willison, 263. 
 Atterbury v. Jarvie, 174, 176. 
 Attorney-General v. Asninall, 472. 
 to the Prince of Wales 
 
 V. Grossman, 106. 
 V. Donaldson 
 
 137. 
 
 et al, 
 
 v. Forbes, 469. 
 
 V. Hallett; 100. 
 
 V.Hitchcock, 295, 306 
 
 v. Radloff, 257, 269. 
 
 V. The Corporation 
 
 of London, 261. 
 V. The Corporation 
 
 of Worcester, 9. 
 v. The Mystery of I 
 
 Mercers et al, 262, 266. 
 
TABLE OF OASES CITED. 
 
 xis 
 
 Idson et al, «E _. 
 
 Attwood V. R'ullcy et nl, 628. 
 
 V. Taylor et al. 12'2. 
 
 Attwool V. Attwool, 103. 
 Austen v. Gibbs, Ha7. 
 Austin V. Gronge, 690. 
 
 A verill V. Powell. 318. 
 Av'jry V. Bowden, 336. 
 
 V. Scott, 233, 236. 
 
 Aylesworth v. Pntterson et vx,, 196. 
 Ayling et ux. v. WUicher, 83. 
 
 Bnbeock and BrookB, In re, 669, 671. 
 
 V. The Municipal Council of 
 
 Bedford, 681. 
 
 Baby v, Langlois, 284, 690. 
 
 V, Milne, 675. 
 
 Backhouse ct al t. Jones et al, 295. 
 Bacon v. Asliton, 92, 114. 
 
 V. McBean et al, 316. 
 
 Baddeley v. Adams, 704. 
 Baddley v. Oliver, 349. 
 Bodman v. Pugh, 330. 
 Baggalay v. Borthwick, 209. 
 Bagiial V. Underwood, 702. 
 Bagshaw d. Ashton v. Toogood, 614. 
 Baguelly v. Marthwidt, 211, 219, 226. 
 Bailey et al v. Bellamy et al, 6S8. 
 
 V. Bidwell, 292, 299,719. 
 
 V. Davy, 667. 
 
 V. Owen, 27, 60. 
 
 et ol V. Sweeting, 102, 123. 
 
 V. Taylor, 472, 474. 
 
 BailiiFs of Bridgenorth, In re, 466. 
 Bailie v. DeBemales, 634. 
 Baily v. Baker, 138, 147. 
 Baker v. Booth, 224. 
 
 V. Browne, 101. 
 
 V. CoghUn, 23, 24. 
 
 V. Cox, 19. 
 
 V. Dewey, 85. 
 
 V. Flower, 685. 
 
 V. Hargreaves, 631. 
 
 V. Heard, 716. 
 
 V. Hunter, 229. 
 
 V. Lane, 266. 
 
 et al V. Ridgway, 179, 180. 
 
 T. Stephens. 240. 
 et al v. The Loodon and Sontb- 
 Western Railway Co., 273, 276. 
 
 V. Walker, 13S. 
 
 Baldwin v. Flower, 88. 
 
 qui tarn v. Henderson, 818. 
 
 V. Peterman, 176. 
 
 Bale V. Hodgetts, 421. 
 Bales V. Wingfield, 727. 
 Balfe V. West et al, 161. 
 Balfour et al t. Official Manager of the 
 Sea, Fire aadLife Ins. Co., 17S. 
 
 Ball et al v. Cowdncy, 689. 
 
 — V. Goodman, 188. 
 V. Hamlet, 10, 93. 
 
 — V. Mannion, 294. 
 
 — V. McKenzie, 424. 
 Ballantyne t. Taylor, 424. 
 Balman et al v. Sharp, 8. 
 Balmanno v. Thompson, 160, 167. 
 Balme et al r. Hutton et al, 780. 
 Bamborg v. Solomon, 674. 
 Bamberger et al v. Commercial Credit 
 
 Mutual Assurance Society, 96. 
 Bamford v. Turnley, 726. 
 Banfield v. Darrel, 20. 
 Bank B. N. A. t. Ainsley, 186, 144. 
 
 V. Elliott, 488. 
 
 V. Jarvis, 496. 
 
 V. Jones et al, 91. 
 
 V. Sherwood. 110, 310. 
 
 India, Australia and China v. 
 
 Rich. 260. 
 
 Montreal v. 
 
 V. 
 
 146. 
 
 Campbell et al, 31. 
 Cronk, 668. 
 Harrison, 61,66,61, 
 
 321, 322. 
 
 V. Reynolds et al, 320, 
 
 V.Taylor, 365, 378,447. 
 — — — — V. Yarrington, 405. 
 —Toronto v. Burton, 392. 
 
 V. McDougall, 477. 
 
 — Upper Canada t. Bethone et al, 
 163, 827. 
 
 — V. Brough, 863. 
 
 — V. Covert et al. 
 
 326, 327. 
 
 880, 885. 
 
 -y. McFarlane et al, 
 
 - T. Murphy, 352. 
 
 - T. Robinson, 284. 
 
 - T. Ruttan, 263. 
 
 - V. Spaffcrd, 479. 
 V. Wallace, 396. 
 
 Banks v. Banks, 221, 260. 
 
 V. Jordan, 167. 
 
 V. O'Sullivan, 105. 
 
 et al V. Rebbeck, 661. 
 
 et al V. The Metropolitan Rail- 
 way Co., 167. 
 Bannerman t. Dewson et al, 608. 
 Barber v. Barber et al,'640. 
 
 V. Palmer, 117. 
 
 Bardell v. Miller, 14. 
 Barden v. Cox, 846. 
 Barefoot v. Fry, 660. 
 Barehead t. Hall, 653. 
 Baretto t. Pirie, 168. 
 Barford y. Nelson, 847. 
 
XX 
 
 TABLE OF OASES CITKD. 
 
 Barker v. Crlendon, 1 66. 
 
 V. Ilollitr, 429, 486. 
 
 IlarnndisUm v. Fovlor. 240. 
 
 Barnes v. llaywaru, 169, 700. 
 
 V. Jackson et al, 97, 98. 
 
 V. Parker, 262. 
 
 V. Pondry, 637. 
 
 V. Ward, 636. 
 
 Barnett v. Earl of Guilford, 729- 
 
 V. Iloopor, 262. 
 
 V. Newton, 111. 
 
 V. The London and North-Wes- 
 tern Railway Co., 115, 116, 782. 
 
 Barncwall v. Sutlierland et al, 190. 
 
 Barney v. Simpson, 151. 
 
 Burnhart v. Justices of the Home Dis- 
 trict, In re, 466. 
 
 Barraclough v. Greenliough, 279. 
 
 Barrett v. Parry, 240. 
 
 V. Power, 631, 
 
 Barringer v. Handley, 20. 
 
 Barrow v. Poile, 179. 
 
 Barry v. Eccles, 62. 
 
 Bartliolomew v. Carter, 730. 
 
 '■ — V. Stepliens et al, 419. 
 
 Bartlett v. Leigliton, 118. 
 
 V. Lewis, 265, 266. 
 
 et al V. Pentland, 191, 192. 
 
 V. Stinton, 365. 
 
 V. Wells, 168, 180. 
 
 Bartley v. Godslake, 166. 
 
 Barton v. Brown, 724. 
 
 V. Hubertus, 210, 239. 
 
 V. Hansom, 693. 
 
 V. Warren, 111. 
 
 Barwick v. DeBlaquiore et al, 268. 
 
 Bass V. Olive, 634, 
 
 Bastard v. Smith et al, 158, 278. 
 
 Bate V. Bolton, 56, 61. 
 
 V. Lawrence, 676, 677, 
 
 Batcman et al v. Phillips, 275. 
 
 Bates V. Bates, 44. 
 
 V, Cooke, 238, 
 
 qui tam v. Lockwood, 660, 
 
 V. O'Donahoe, 330. 
 
 V. Pilline, 423. 
 
 V. Townley et al, 236. 
 
 Bateson v. Lee, 168, 
 
 Batterbury v, Vyse, 716, 
 
 Batson et al v. Spearman, 162. 
 
 Batty V, Marriott, 684. 
 
 Baugh V. Willingworth, 178, 
 
 Baydell et al v. Harkness, 100. 
 
 Bayley v. Baker, 134. 
 
 V. Griffiths, 267. 
 
 Baylis v. Le Gros et al, 460, 470. 
 
 V, Lawrence, 726, 
 
 Baynard T. Simmons, 389. 
 
 Bayne v. Slnt-k, 48. 
 Baxter v. Bailey, 678. 
 
 V. Bay lie, 718. 
 
 et al V. Dennie, 483. 
 
 V. Morgan, 631, 633. 
 
 V. Nurse, 334. 
 
 V. Taylor, 725. 
 
 Baxondale v. Tlio Great Western Piail- 
 
 way Co. 1'2(), 122. 
 Baxley v. Thompson, 60. 
 Beacon v. Jones, 474. 
 Beames v. Farley, 686. 
 Beard v. Ketchuin, 179, ISO. 
 Beasley et al v. D'Arcy, 171. 
 
 V. Darling et ux, 318. 
 
 V. Steginan, 221. 
 
 V. Tyrrell, 275. 
 
 Beaton v. Forrest, 117. 
 
 V. McKenzie, 115. 
 
 Beatson v. Keno, 267. 
 Beattie ct al v. Cook, 436. 
 
 V. McKay, 355, 378. 
 
 V. McMastcr et al, 728. 
 
 V. Taylor, 855. 
 
 Beauclerk v. Hook, 158. 
 Beaven v. Lord Oxford, 393. 
 
 V. Taimer, 140. 
 
 Beazly v. Bnilcy, 98, 111. 
 Beck V. Mordaunt. 64. 
 
 V. Siirgcnt, 238. 
 
 Beckc, Ex parte, 4(V7. 
 Bccket V. Durand, 324, 678. 
 Beckett et al v. Dutton, 3i)'.>. 
 Beckford v. Darcy et al, 260. 
 Beckman v. Jarvis, 353. 
 Bedells et al v. Mnssey, 138. 
 Beebo v. Secord et al, 86. 
 Beech v. Ford, 176. 
 
 V. White, 713. 
 
 Beekman v. Jarvis, 852. 
 
 Boeton v. Jupp, 634. 
 
 Begg V. Forbes et al, 109, 618, 628. 
 
 Behn v. Burness, 95. 
 
 Behrens et al v. Allen, 163. 
 
 Belcher v. Cook, 103. 
 
 et al Vs Goodered, 61, 61. 
 
 V. Magnay, et al, 334. 
 
 et al v. Smith, 202. 
 
 Bell v. Alexander, 156. 
 
 et al v. Bidgood, 685. 
 
 V. Brechannah, 384. 
 
 V, CufF, 579, 
 
 V, Gate, 666, 607, 
 
 V. Groham et al, 233. 
 
 V. Harrison, 681, 
 
 V, Lord Ingestre, 143, 718, 
 
 T. Postlewaithe, 211, 317, 
 
 Y. Shannon, 634. 
 
TABLE OF CASES CITED. 
 
 XXI 
 
 Boll V. Sniitli, S-Jfi. 
 
 V. Tlio Midland Rnilwny Co. 726. 
 
 V. Tidd, 610. 
 
 V. Twentymnn, 215. 
 
 ot nl V. Whilehcnd, 474. 
 
 Ik'Uiisi-* V. llalnford, JdH 
 
 Ik'llituriinni ot nl v. Clnrko, 71. 
 
 Bt-n V. Bfttenian, H4. 
 
 Beniizcch v. Hessptt, (!33, 
 
 Benili'i" V. Zimmerman. 268, 269. 
 
 Benedict v. Arthur. 727. 
 
 Bonctt V. The I'onin.sular and Oriental 
 
 Steamboat Co. 715. 72.S, 727. 
 Bontje V. Swaine, 191, 192, 193, 634. 
 Benliam v. Shaw. 331. 
 
 V. Wetlierol, 108. 
 
 Bonn V. Bateman, 623. 
 
 d. Mortimer ct ux v. Dcnn, 578. 
 
 Bennett v. Bayes et al, 2.j2, 263. 
 
 V. Bull. 718. 
 
 V. Burton, 423. 
 
 V. Deacon, 720. 
 
 V. Forester, 669. 
 V. Griffith et al, 274. 
 V. McDonald, 299. 
 V. Nealo, 425. 
 V. XJjompson, 129. 
 Bennion v. Davidson et al,713,7l4,724. 
 j Bens V. Stover et nl, 647. 
 [Benson v. Idle, 17S. 
 V. rnull, 460. 
 v. Schneider. 702. 
 iBenthrtll V. ^Vest, 283. 
 3entiiic,' v. Scott, 808. 
 iently v. Carver et al, "23. 
 v. Dawes, 143, 419. 
 v. Keighlev et nl, 141. 
 Jenton et al v. Polkinghorne, 646, 634. 
 Jercher v. Colson, 6(j8. 
 Jerirer v. Green, 216. 
 Jergin v. Bennet, .S90. 
 
 v. Hamilton, 3S4. 
 V. Pindar, 497, 503. 
 ierkle}' v. De Vere, 1.50. 
 Bernard v. Chine, 293. 
 Berney v. Rend, 244. 
 Jerresford et nl v. Geddcs, 283, 818. 
 ierry v. Alderman, 2< 6. 
 Bertie v. Pickering, et ux, 90. 
 Berwick V Andrews, )S3. 
 Bcsant v. Cross, 158, 719. 
 Jescoby et al v. Hamilton Water Com- 
 missioners, 892. 
 Bettleston et nl v. Cooper, 279. 
 Bettley v- McLeod, 702. 
 3etts v. Kimpton, 196. 
 iettyes v, Thompson, 4. 
 Sevan v. Wheat, 497. 
 
 Bevins v. ITulmo, 166. 
 Biddick, The, 418. 
 Biddulph V. Cooper, 421. 
 Bidgood V. Way et ux, 87, 88. 
 Bignnll v. Gale, 693. 
 
 V. Ilarpur, 84, blO. 
 
 Bilko ct al v. London and C'-atham and 
 
 Dover Railway Co. 4/2 
 Bill V. Bnment, 68 1 . 
 .— V. Richards, 174. 
 
 V. Winte, 470. 
 
 Billings et al v. Barry et nl, S6. 
 
 et ol V. Rnpe'ijo et al, 310, 353. 
 
 ot al V. Reid, 283. 
 
 Binet v. Picot, 44. 
 Bingham v. Clements, 724. 
 
 V. Stanley, 292, 719, 724. 
 
 Birch V. Leake, 158. 
 
 V. Ridgway, 302. 
 
 Bird V. Appleton, 532. 
 
 V. Atkins et al, 068. 
 
 et nl V. Folger ot al, 495. 
 
 V. Iligginsou, 83, 135, ISO, 711. 
 
 et nl V. Malzy, 2G0. 
 
 V. Wretten, 890. 
 
 Biru a Case, 662. 
 
 Birkenhead June. R.Co.v. Diinmack,64. 
 
 Birket v. Holme, 267. 
 
 Birkhead v. North, 422. 
 
 Birmingham Banking Co., In re, 261. 
 
 Birt V. Barlow, 647. 
 
 Bishop of London v. McNeil, 120. 
 
 Peterboro' v Catesby, 97. 
 
 Toronto v.Cantwell, 525,520. 
 
 Winchester v. Bowker, 276. 
 
 Black V. Green, 27. 
 
 V. Lowe, 685. 
 
 V. Sangster, 312. 
 
 Blnckborn et ux. v. Greaves, 88. 
 Blackburn v. Godrick, 050. 
 
 V. Peat, 689. 
 
 Blackford v. Hawkins, 000. 
 Blackham v. Pugh, 720. 
 Blackie v. Bidding, 129. 
 Blocker v. Hanlon, 108. 
 Blackman et al v. Bninton, 103. 
 
 V. O'Gormnn, 38, 668. 
 
 Blnckwell v. Allen, 078. 
 
 Blagrave v.Bristol Waterworks Co. 128. 
 Blair V. Bruce, 131. 
 
 V. Jones, 229. 
 
 Blako V. Boaty, 366. 
 
 V. Cooper, 18, 20. 
 
 et al V. Done, 318, 609. 
 
 V. Jarvis, 392. 
 
 Blakey v. Porter, 275. 
 Blanchard v. Snider, 224. 
 Blanchenay r. Burt et al, 409. 
 
ZXIl 
 
 TABLV OF OASES CITED. 
 
 ;l 
 
 rinnd V. Dax, 82. 
 
 Bleadcn v. UupoUo, 06, 709. 
 
 Blenkloy v. EaHton, 100. 
 
 V. Jny, 70. 
 
 Bltickcr V. Campbell, 625. 
 
 V. Loyall, 228. 
 
 V. Movers, 671. 
 
 Blocktnan v. Jarvia, 493. 
 Bl.'st V. Neil, 108. 
 Bletcher v. Burn, 120. 
 Biuvinn t. Maiden, 408. 
 Blowitt V. Gordou, 168, 262. 
 
 V. Mnrsden, 166. 
 
 V. Tregonning. 104, 806. 
 
 Bligh et al v. Brewer, 687. 
 Blight v. Goodliffe ot al, 267. 
 BlisAott V. Tenant, 93. 
 
 Blogg V. Kent, 276. 
 Bluck V. Gompertz, 276. 
 Blue V. Toronto Gns Co., 92. 
 BlumfiPld V. Usewich, 179. 
 Bliindell v. Blundell, C60. 
 Blunt ex parte, 616. 
 
 V. Haslop, 63, 447, 708. 
 
 Blyth V. Dennett, 663. 
 
 V. L'Estrongo, 266. 
 
 Blythe v. Lofone, 232. 
 Boddington v. Woodley, 13. 
 Bodcnlmm ex parte, 617. 
 
 et al V. Hill, 92. 
 
 Body T. Johnston, 166. 
 Bogget V. Frier et al, 88. 
 Bolingbroke et iix. v. Kerr, 319. 
 Bologne v. Vautrin, 663, 667. 
 Bolton V. Fitzgerald et al, 318. 
 
 V. Manning, 661. 
 
 V. The Cor. Liverpool, 260, 261. 
 
 Bond V. Downton, 729. 
 Bonner v. Charlton, 223. 
 BonseiT et al t. Austen, 20. 
 
 V. Bois, 669, 672. 
 
 Bonzie et al v. Stewart, 165. 
 Boodee v. Davies, 222, 226, 408, 698. 
 Boorman et al v. Brown, 86, 469. 
 Booth V. Howard, 17, 721. 
 
 V. Miller, 292. 
 
 V. Taylor, 472. 
 
 Boozey v. Tolkien, 07. 
 Bordier v. Parnett et al, 830. 
 Borer v. Baker, 673. 
 Borwick v. Walton, 661. 
 Bos et al t. Uelshana et al, 235. 
 Bosanquet v. Graham, 412. 
 Bosley v. Moore, 721. 
 Bostwick V, Phillips, 202. 
 Boswell V. Roberts, 18. 
 
 V. Ruttan, 131. 
 
 Bottomley v. Belchamber, 679. 
 
 Bottomloy v. Bunkley ot at, 219, 244. 
 Boucher v. Murray, 310. 
 
 e( al V. i'attnn et al, 64, 439. 
 
 Bouhet T. Kitloo. 670. 
 Boulos V. Tanghney, 607. 
 Boulton T. Manning, 112. 
 
 V. Murphy et al, 669. 
 
 V. Pritchard, 160. 
 
 V. Ruttan, 447, 490, 678. 
 
 Bourne v. Alcock, 43'i. 
 Bousfield v. Kdge. 126, 168. 
 
 et al v. Go«lfrey, 275.^ 
 
 Boustead v. Scott, 681. 
 Boater v. Pretty, 483. 434. 
 Bouttelier v. Thick. 220. 
 Bowdon T. Ilorne, 646. 
 Bowditch V. Slaney, 13. 
 Bowen v. Williams, 235, 248. 
 Bower t. Mill et al, 649. 
 
 V. Kerap, 64, 81. 
 
 Bowers et al v. Flower, 81, 82. 
 
 V. Nixon, 811, 633. 
 
 Bowman v. Bowman, 301. 
 
 V. Hodgson, 209. 
 
 Bown V. Hawke, 1,31, 164. 
 Bowring v. Bignold, 628. 
 Bowser v. Colby, 656. 
 Bowyer v. Cook, 432, 471. 
 Boyd et al v. Durand, 223. 
 
 V. Hnynos, 391, 898. 
 
 V. Uurd, 713. 
 
 Boydell et al v. Hnrkness, 712. 
 Boyes v. Bluck, 222. 
 
 V. Hewetson, 8, 100. 
 
 V. McGregor, 174. 
 
 Boyle, In re, 669. 
 
 V. Humphrey, 221, 227. 
 
 V. Webster et al, 68. 
 
 V. Wiseman, 267. 
 
 Boyse v. Simpson, 893. 
 Bracebridge v. Buckley, 666. 
 Braceby v. Dalton, 65 
 Bracegirdle v. Hicks, 716. 
 
 — — V. Peacock et al, 128. 
 
 Bracey v. Carter, 716. 
 Bradbee v. Gustard, 20. 
 
 V. Governors of Christ's Hos- 
 pital, 220, 
 
 V. The Moyor and Corporation 
 
 of London, Governors of Christ's- 
 Hospital, 469. 
 
 Bradbury v. Emans, H>7. 
 
 V. Flint, 827. 
 
 et al V. Loney, 363. 
 
 V. Lowry, 488. 
 
 Bradford v. Maninghan, 209. 
 
 et al V. O'Brien, 161. 
 
 Bradley v. Bardslcy et al, 130. 
 
TABLE OF OASES CITED. 
 
 XZIU 
 
 Drndloy et nl v. Kyrc ct nl, 412. 
 
 V. lloldsworlli, 3CI. 
 
 ct nx. V. I'liolps, 'J'Ja, 2:j5. 
 
 V. JUcnrdo, .1ti2. 
 
 ct nl V. Ti!rry, 609. 
 
 V. Tiinatow, ill. 
 
 V. H'yndlmtii, ;!56. 
 
 Brni1^<!inw v. Motlmtn, 072. 
 Ilriiil worth v. Forslinw, .SI 2. 319, 820. 
 iJrndv V. I'irkrring, 99. 
 IJrniriiin v. Wntkini", 16(1. 
 Itrnkciihiiry v. NecHllmin, 31. 
 Ui'iiiiiiih <it nl V. Uolicrts vt nl, ll'i. 
 liniinwc'll V. Ihilcotnb, 160. 
 Hninckcr v. Cmzier, '.\l\K 
 ISratidno v. Barnct ct nl, 724. 
 Urnndlord v. Fieemiin, iW. 
 lirniidnn v. Cnwtlioriio, 518. 
 Brnsh V. Lntta, »)7.1. 
 Hrn.^lilord v, liiickliij^linin ct ux., 87. 
 Hrn^l^K■r v. .lackson, 72, 810, 
 BraswcU v. (tcoe, 411. 
 Bruty V. B.ildock, 09, 112. 
 Brnun v. MoUett, 703. 
 Brnunstein v. Accidentnl Death Assur- 
 ance Co., 231. 
 Brny v. Finch, 259, 260. 
 
 V. Ilnllcr, 76. 
 
 V. Mnnson, 636, 685. 
 
 Brenkonridge v. King:, 316. 
 Breen v. lluthinson, .S67. 
 Brc{;a v. Ilodg-son, 74. 
 
 Breniiun v. Ilownrd, 313, 315, 817, 318, 
 
 320, 321, 822. 
 Brest V. Lever, 729. 
 Brctlierton ct al v. Wood. 11. 
 Brett V. Smith, 6, 603, 681. 
 
 V. Stone, 32 i. 
 
 Brettargh ct al v. DeaVden, 100. 
 Brewer v. Bacon. 284. 
 
 V. Picrpoint et nl, 327. 
 
 Brewster v. Davy, 62, 81. 
 Brian v. Stretton, 20. 
 Briant v. Eicke, 308. 
 Brickcll v. Hulse, 18.5. 
 Brickor et nl v. Ancell, 318, 319. 
 Bridge v. The Grand Junction Rail- 
 way Co., 723. 
 
 and Wright, In re, 50. 
 
 Bridgeford v. Wiseman et al, 329. 
 Bridger v. Austin, 59. 
 
 et al V. Gay, 817. 
 
 Bridges v. Smyth, 194. 
 Bridge water v. Griffiths, 330. 
 Bridson v. Benecke, 474. 
 
 V. McAlpine, 474, 480. 
 
 Brierly v. Kendall et al. 730. 
 Briggs V. Aynsworth, 295. 
 
 Briggs 7. Bernard, 10. 
 
 Bright V. Durnell. 246. 
 
 Bri.nd V. Dale, 713, 715. 
 
 Brine v.ThoGrent Western R. Co., 103. 
 
 Brink ct al v. Wlngwnrd, 724. 
 
 Brlscoo V. Hill, 127. 
 
 V. Roberts, 631. 
 
 Brlstowo V. Needham, 630. 
 
 British Kinp. Shipping Co. v. Sonmcs, 
 
 212,260. 
 Britten v. Britten et nl, 62.'5. 
 Brondbcnt v. Led ward, 71, 722. 
 Brockbank v. Anderson, 205. 
 
 V. the Whitehaven Junc- 
 tion R. Co., 84. 
 
 Broggroy v. Uawkc, 42'\ 
 Brokensnlr v. Monger, 622. 
 Broinage et nl v. Lloyd et al, 146. 
 
 V. I'rort.sc, 725. 
 
 V. Kay, 20. 
 
 Bromley v. Gerlsh, 04. 
 Brook V. Edridgc. 24. 
 
 V. Lloyd, 327. 
 
 V. McLean, 379. 
 
 Brooke v. Bank of Upper Canada, 21. 
 
 V. McCausland, 131. 
 
 V. Mitchell, 215, 230. 
 
 V. Willet, 143. 
 
 Brookes v. Tichborne, 301. 
 Brooks V. Blanchard, 308. 
 V. Farlar, 678. 
 
 ■ et nl V. Hodgson, 676. 
 
 V. Jennings, 115, 732. 
 
 V. Uigby, 422. 
 
 Broomfield v. Smith, 715. 
 Brounsall, ex parte, 617. 
 Browu V. Austin, 04, 158. 
 
 qui tarn v. Baily, 672. 
 
 V. Bentty, 103. 
 
 V. Benniger, »89, 890. 
 
 et al V. Boulton, 813. 
 
 V. CInrke, 320. 
 
 V. Clifton, 109. 
 
 et al v. Crolcy et al, 422. 
 
 V. Denn, 3(»8. 
 
 V. Edwards, 386. 
 
 et nl V. Fullerton, 49. 
 
 V. Gisborne, 257. 
 
 V. Johnson, 375. 
 
 V. I^eeson, 202. 
 
 V. London & N. W. R. Co. 11. 
 
 V. Mnllet, 40, 469. 
 
 V. Malpus, 335'. 
 
 V. McAdnm, 434, 436. 
 
 V. McMillan, 675. 
 
 v. MlUlngton, 142, 164,312,319 
 
 V. Merrells, 892. 
 
 V. Nelson, 693. 
 
XXIV 
 
 TABLE OP OASES CITED. 
 
 Brown nnd Overliolt, In re, 228. 
 
 V. Palraer, 40. 
 
 V. Perrott, 867. 
 
 V. Philpott, 719. 
 
 V. KiddoU, 31, 32. 
 
 V. liudil, 327. 
 
 V. Street, 334. 
 
 V. Tiinnpr, 223. 246. 
 
 V. Tnpscott, 716. 
 
 V. Wntson, 222. 
 
 V, Wntt3, 17. 
 
 V. Wildboro, 283. 
 
 V. AVilliams, 55. 
 
 Browne v. Collyer, 228, 240, 241, 248, 
 ()V3 
 
 Dftwson ot nl, 729. 
 
 et al V. Erner3on, 209. 
 
 V. Murray, 294, 295. 
 
 V. Price, 716. 
 
 V. Hedraond, 633. 
 
 Brownrigy; et al v. Ilae, 716. 
 Brown's Bail, 664. 
 Bruff V. Conybeare, 335. 
 Brnnsdon v. Allard, 652. 
 Brj'an v. Ejector, 631. 
 
 V. Wasstaff, 281. 
 
 Bryant v. Wilson, 691. 
 Buchanan v. Bettes et al, 623. 
 
 V. Ferrca, 478, 483. 
 
 et 111 V. Frank, 374, 375, 376 
 
 V. Rucker, 45. 
 
 Bnckland v. Gibbins, 631. 
 
 V. Johnson, 317, 319. 
 
 Buckle V. Hollis, 205. 
 
 Buckley v. Buckley, 551. 
 
 V. Collier, 87, 88. 
 
 Buddie V. Willson, 125. 
 
 Buell V. Whitney, 15. 
 
 B. & L. II. r Co. V. Brooksbanks, 282. 
 
 V. Gordon, 7. 
 
 V. Hemingway, 51. 
 
 Bull V. mdl, In re, 221. 
 
 etnl V. Clarke, 277. 
 
 V. King, 35r 
 
 V. Price, 104. 
 
 Bullen et nl v. A'Beckett, 345. 
 Bullock V. llicliardson, 277. 
 Bulincr v, Bousfield, 97, 708. 
 Bulnois V. Mackenzie, 028. 
 EuUey V. Fonlkea et al, 140. 
 Burnford v. Greuler, lt'5. 
 Buncombe v. Love, 18. 
 Burdees v. Satchwell, 653. 
 Burdekin v. Potter et al, 640. 
 Burdett v. Abbot, 536. 
 
 et ftl V. Lewis, 688. 
 
 V.Sawyer, 5, 463,465, 468,698. 
 
 Burdou V. Flower, 4 1 9. 
 
 Burgess v. Beanmont, 168. 
 Burgess v. Boetefonr, 297, 298. 
 
 V. Guardians of the Mitchell- 
 
 town Union, 231. 
 
 V. Koyle, 286. 
 
 • V. Swavne, 630. 
 
 Burgoyne v. Cottrell, 1 OO. 
 Burley v. Stephens ct ux. 240. 
 Burke v. Battle, 518. 
 Burn V. Cooke, 283, 328. 
 Burnard v, Wainwiiglit, 229. 
 Burnett v. Holden. l'.)4. 
 Burnham v. Daley, ;;62, 379. 
 Burridge v. Nicholelts, v31. 
 Burritt v. Hamilton ct al, 76. 
 Burrows et al v. (Jabriel et al, 24. 
 
 v. Lee, 425. 
 
 Burt, In re, 231. 
 Burton et ai, In re, 241. 
 
 v. Roberts, 389. 
 
 et nl v. Nowlniid, 109. 
 
 Buiwell v. Hamilton, 720. 
 Bury V. Clench, 682. 
 
 V, Goldner, LOS. 
 
 Bush et al v. Beaven, 401, 402. 
 Bushe, Ex parte, 615. 
 Busscy V. Burnett, 126, 716. 
 Busteed v. Raymond, lOS. 
 Butcher v. Green, 1 44. 
 Butler V. Brown, 423. 
 
 V. Burke, 5.'8. 
 
 v. Cohen, 9. 
 
 et nl V. Donaldson, 509. 
 
 ' V. Hobson, 7<>2. 
 
 V. Knight, 379. 
 
 V. Meredith, 519, r)20. 
 
 Buttermcre v. ll.iyes, 713, 718. 
 Button ot nl v. S.'E. R. Co. 268. 
 Byas V. Wylie, 719. 
 Bye V. Bower el al, 310. 
 Byfield v. Street, 48. 
 Byrne v. Jones, 2S6. 
 V. Harvey, 281. 
 
 V. llogan, 283. 
 
 V. ShtM'lock, 19. 
 
 Byrnes v. Wild et nl, 70. 
 
 Caila V. Elgood, 396. 
 
 Cnines v. Smith, 95. 
 
 Caird et al v. Fitzcll, 496, 4'.»7. 
 
 Cnhoon v. Burford, 96, 7o8, 709. 
 
 Cakish v. Ross, 663. 
 
 Calder v. Rutherlord, 295. 
 
 Caldwell v. Blake. 9. 
 
 V. Lord Kilworth, 634. 
 
 V. Vnn Vlissengen, 474. 
 
 Callnghan v. Baincs et nl, 282. 
 V. Lord Lismore, 559. 
 
 
TABLE OP OASES CITED. 
 
 ZZT 
 
 CallaLflicr v. Stoii<'ln'uli;'e et al, 318. 
 CallnndL-r V. DittricV ''lO. 
 Galium V. Leeson, C.:.'.). 
 Calvert V. Baker, 718. 
 
 V. (Jandy, (il9. 
 
 V. JIo^^.s, I'll. 
 
 Calvin v. Cook ct al, 80. 
 Cake v. Lord Littellou, 111. 
 CaiiiberlcL;e ct al v. Carter, 111, 
 Canieroii v. lirantford Gas Co., 389. 
 V. Cameron. 282, JOS, 701. 
 
 V. Campbell, 43G, 437. 
 
 V. Milloy. o.'iO. 
 
 ct al V. iMurpliy, C20. 
 
 — et al V. lleviiolds, 420. 
 V. Wlieelef ct al, 12. 
 
 Campbell v. Boidlon, 22(>. 
 
 V. Coi'i>orati()a of Elma, 336. 
 
 V. I)eliliaii(y et al, 359. 
 
 V. Matliewson, r.j7. 
 
 V. reilen et al, 392. 
 
 V. IVttit, .-2rt. 
 
 and Kiittan, In re, 370. 
 
 V. Smart et al, 27, 50. 
 
 V. Tweinlow, 219. 
 
 Canada Co. v. AVier, 513, 517. 
 
 Canliam v. Fisk, 3"'.7. 
 
 Cann v. Thomas, 5iJl. 
 
 Cannaiit et al v. Farmer, 202. 
 
 Cannerk v. Jones, 471. 
 
 Cannon ct al v. Reynolds et al, 316, 
 
 Can nop et al v. Levy, 130. 
 
 Canny v. liod^'ens, .")59. 
 
 Canlwell v. llarl of Sjterli.ig 4. 
 
 Canty v. Cyll, <;2;j. 
 
 Card v. Case, 72;i. 
 
 Cardwell v. Bayues. 63^. 
 
 Carey v. Choate et al, 121, 
 
 V. I'itt, 301. 
 
 V. Tate, 730. 
 
 Carew V. Davies, 2t!4. 26.'), 268, 
 Cariealler v. We.^.=:ell.s, C20. 
 Carmieliael v. llonelien, ('>'.I3. 
 
 V. Hunter, 693. 
 
 V. Tlie Waterford it Lime- 
 rick Raihvav Co., I(.'7. 
 Carn.'iby v. Welhy, i;!2. 
 Carne et al v. Malins et al, 49. • 
 Carnis v. Nenbitt, 47o, 471. 
 Carpenter v. Lee, 347. 
 
 V. Parker, 200, 318. 
 
 ct al V. Thornton, 223. 
 
 Carr v. Bancroft, 4n3. 
 
 V. Cooper, 5t'), 319. 
 
 V. iShaw ct al, 49, 633. 
 
 Carrall et al v. Ball, 249. 
 
 V. Potter, 121. 
 
 Cavrie v. Almond, 140. 
 
 Carson v. Dowding ct al, 9. 
 Carrutherp v. , etc., 614. 
 
 V. Dickie, 100, 028. 
 
 Carscallen v. Hoodie et al, 331. 
 
 Cart et al v. Ambergate llailw. Co. 95 
 Carter v. Cary et al, 390. 
 
 V. Mansbridfi-o, 214, 218. 
 
 V. Sullivan et al, 30. 
 
 V. The Burial Board for the 
 
 To.vnship of Tong, 227, 086. 
 Carter's Bail, 005. 
 Cartwright v. Cook, 143, 711. 
 
 V. Frost, 109. 
 
 ct al V. McPhcrson, 'Jl8. 
 
 Cary v. Cumberland, 279. 
 Casaden v. Conway, 512. 
 
 Case V. Benson et al, 037, 638. 
 
 Cassell, In re, 288. 
 
 Casey v. McCoU, 632. 
 
 Cash et al v. Trevor, 423. 
 
 Cass V. Cass, 679. 
 
 Cassidy v. Stuart, fil. 
 
 Castle et al v. Burditt ct al, 490. 
 
 V. Ruttan, 350. 
 
 Castrique v. Bcrnabo, 9. 
 
 Cataraqui Road Co. v. Dunn, 391. 
 
 Cates V. "Winter, 281. 
 
 Caunam et al v. Farmer, 292, 
 
 Caunt V. Thompson, 3o9. 
 
 Cavallier v. Michael et al, 64. 
 
 Cavanngh et al v. Morrison, 103, 
 
 Cave V. Aaron, 158. 
 
 Cawkwell v. Ru.'^sell, 315, 319, 321. 
 
 Cawley v. Knowlcs, 285. 
 
 Caynic - ^Vatts, 222. 
 
 Cazneau v. .Morricc et al, 83, 147, 652. 
 
 Cecil V. Briuu'es, 621. 
 
 Cesarini v. lionzani. 51. 
 
 Cinqniars ct al v. Tlio Equitable Fire 
 
 Insurance Co., 076. 
 City Bank v. Eccles, 318, 626. 
 
 of Kingston v. Brown, 19. 
 
 Chace ct :d v. Westmore, 225. 
 Chadsey v. Ransom, 314. 5U0, 512. 
 Clmdwick V. ilerapath, 119. 
 
 — ^ T. Mel'licri<on, 318. 
 
 Challon V. P.akcr, 389. 
 
 Chaii-.ierlain v. Chamberlain, 631, 712. 
 
 et al V. Wood ct al, 6, 30. 
 
 Chambers v. Donaldson, 87, 88. 
 
 V. Manchester and Milfortl 
 
 Railway Co.. 720. 
 
 V. Smith, 446, 703. 
 
 V. Sodei), 95. 
 
 V. Wiles, 624. 
 
 Chamley v. Grundy, 322. 
 Champion v. ('rilliths, 0-19. 
 Chancller ex parte, 015. 
 
XXVI 
 
 TABLE OF CASES CITED. 
 
 'H 
 
 11 
 
 Chnnning v. Cross, 19. 
 
 Channoa v. Parkhouse, 105. 
 
 Chanter v. Leese et al, 70, 814, 315, 713. 
 
 Chantler et nx. v. Lindsey et ui., 75. 
 
 Chapel V. Hickes, 85. 
 
 Chaplin ex parte, 867. 
 
 V. Levy, 278, 280. 
 
 V. Showier et al, 97, 98. 
 
 Chapman v. Becke, 12, 13. 
 
 V. Cottrell, 43. 
 
 V. De Lorme, 484. 
 
 V. Giles, 155. 
 
 V. Ileslop, 327. 
 
 V. King et al, 50, 709. 
 
 ■ V. Monmouthshire Railway 
 
 and Canal Co., 253. 
 
 V. llawson et al, 293. 
 
 V. Ilodway, 702. 
 
 et al V. Shepherd et al, 395. 
 
 V. Snow, 52. 
 
 et al V. Sutton, 3i5. 
 
 et ux. V. Vandevelde, 719. 
 
 V. Van Toll, 210. 
 
 Chappcil V. Purday, 472, 474. 
 
 Chappel V. Watts, 632. 
 
 Chappell et al v. Davidson, 114, 128. 
 
 Chard v. Lout, 439. 
 
 Charles v. Corroll, 223. 
 
 V. Ilopkirk, 155, 156. 
 
 V. Hickson, 241. 
 
 Charlesworth v. Ellis, 6:^8. 
 Charnlcy v. Grundy, 129, 315. 
 
 V. AVinstanley, 228. 
 
 Chartered Bank of India, Australia and 
 
 China v. Rich, 277. 
 Chase v. Gihnour, 284. 
 
 et al V. Goble, 649. 
 
 V. Scripture, 167. 
 
 Checcki et ux. v. Powell et al, 329. 
 Cheetham v. Sturtcvant, 193. 
 Cheshire v. Mumford, 700. 
 Cheslyn v. Dalby. 235. 
 Chester v.Wortley et al, 265, 266, 269. 
 Chetwind v. Marnell, 275. 
 Chevalier et al v. Finnis, 631. 
 Cheveley v. Morris, 101. 
 Chevers v. Parkington, 166. 
 Chick's Case, 6tl3. 
 Child V. Ilorden, 215. 
 
 V. Marsh, 52, 677. 
 
 Children v. Mannering, 155. 
 Chilton V. Carrington et al, 171,405,406 
 Chipp V. Harris, (136, 688. 
 Chisholm v. Sheldon, 863. 
 
 V. Simpson, 328. 
 
 Chitty V. Hume, 110. 
 
 Cholmondeley v. Payne et al, 97, 708. 
 
 Chrisp V. Attwell, 327. 
 
 Christie et al v. Bell et al, 49. 
 Christie v. Hamlet, 226. 
 Christmas v. Eicke, 17, 18, 19, 62. 
 Christopherson v. Bare, 724. 
 
 V. Burton, 356. 
 
 V. Lotinga, 259, 268. 
 
 Chubb V. Nicholson, C77. 
 Church V. Barnhart, 310. 
 Churchward v. The Queen, 167. 
 Churton v. Frewin, 272. 
 Chnte V. Blennerhasset, 276. 
 Clapham v. Higham, 246. 
 Clare v. Cooke, 424. 
 Claridge v. Mackenzie, 52, 676. 
 
 V. Wilson, 426, 
 
 Clark V, Baker, 60. 
 
 V. Clark, 398, 403. 
 
 V. Dunn, 121.. 
 
 V. Galbraith, 388. 
 
 V. Martin, 82. 
 
 V. Mcintosh, 483. 
 
 V. Orr, 407. 
 
 V. Perry, 394, 398. 
 
 V. Regina, 106. 
 
 V. Smith, 10. 
 
 V. Waddell, 282, 
 
 V. Ware, 211. 
 
 et ux. V. Webb et al, 7 17. 
 
 Clarke V. Allatt, 136. 
 
 V. Arden, 522. 
 
 V. Ashfield, 477. 
 
 et al V. Bulmer et al, 309. 
 
 V. Clarke, 395. 
 
 V. Durham et al, 419, 730. 
 
 V. Freeman, 470, 472. 
 
 V. Fuller, 69. 
 
 V. Galbraith, 380, 381. 
 
 V. Laurie, 173, 174. 
 
 V. Leicestershire and Northamp- 
 tonshire Canal Co. 462. 
 
 V. McDnniel, 275. 
 
 v. Proud foot et al, 497, 498. 
 
 V. Rii)pon et al, 188. 
 
 V. Smith, 50, 51. 
 
 V. Stocken, 241, 246, 247. 
 
 V. Taylor et al, 128. 
 
 V. AViiite, 293. 
 
 Clarkson v. Lawson, 129. 
 Claudet v. Prince, 285. 
 Claxton V. Hyde, 060. 
 Clayy. Oxford, 318. 
 
 T. Thackrah, 279. 
 
 Clayton v. Attorney-General, 469. 
 
 v. Best, 100. 
 
 Cleal V. Latham, 342. 
 Cleary v. Cleary, 228. 
 Cleaver v. Fraser, 500. 
 Cleghorn v. Carroll, 109. 
 
 CI 
 CI 
 CI 
 CI 
 CI 
 
 Cl( 
 
 C!( 
 
 Cli 
 
 Cli 
 
 CIL 
 
 CIo 
 
 Clo 
 
 Clo 
 
 Cloi 
 
 Clo' 
 
 CIul 
 
 Clul 
 
 Coai 
 
 Coat 
 Cob! 
 
 Cocli 
 Cock 
 
 Cock 
 CockJ 
 
 Codrii 
 
 Coher 
 
 Cohn 
 
 Coit \t 
 
 Collar 
 
 Colbol 
 
 ColbrI 
 
 Cclbyl 
 
 CclclY 
 
 Cole 
 
 Colebd 
 ColemI 
 
TABLE OF OASES CITED. 
 
 xxvu 
 
 Cleland t. Robingon et nl, 84. 
 
 Clement v. Weaver, 51. 
 
 Clements v. Flight, 722. 
 
 Clemow V. Her Majesty's Ordnance, 690 
 
 Clerk V. Dann, 13. 
 
 V. Moor, 1Y9. 
 
 V. Withers, 373, 412. 
 
 Clerke v. Rowell et al, 650. 
 Cleveland v. Boice et al, 506, 607. 
 Clifton V. Durand, 224, 692. 
 
 Clinch V. Financial Cor., 261, 262, 266. 
 Cline V. Cawley, tlO. 
 Clooney v. Watsoj, 5S4. 
 Close V. Batt, 531. 
 Clossman v. White, 91. 
 Clothier v. Gann. 702. 
 Clowes ct al v. Brettel, 415. 
 Clubine v. McMuUen, 243, 530. 
 Clulee V. Bradley, 106, 109. 
 Coates et al v. Birch, 253. 
 
 V. Hornby, 18. 
 
 V. Sandy, 27. 
 
 etalv. Stevens, 17,121,124,721. 
 
 Coatsworth et al v. Spokes, 653. 
 
 V. Wellington, 632. 
 
 Cobbett V. Calvin, 9. 
 
 V. Grey et al, 116. 
 
 v. Kilminster, 302. 
 
 v. Oldfield. 678, 679. 
 
 V. Warner, 578, 632. 
 
 Cochrane v. Day, 174. 
 
 V. Scott et al, 439, 699. 
 
 Cock V. Brockhurst et al, 378. 
 
 V. Cox well, 718. 
 
 V. Gent, 222. 
 
 Cocker v. Tempest, 234. 
 
 CockercU v. Van DIemen's Land Co. 
 
 252, 253, 257. 
 Cocks et al v. Brewer et ux., 713. 
 
 et al V. Edwards, 638. 
 
 V. Nash, 275. 
 
 V. Purday, 205. 
 
 Codring-ton v. Curlewis, 59, 60, 626,667. 
 
 Cohen v. Hannara, 720. 
 
 Cohn V. Davis. 666, 667. 
 
 Coit V. Wing, 363. 
 
 Collard v. Allison, 469, 474, 
 
 Colborne v. Stockdale, 130. 
 
 Colbron v. Hall, 673. 
 
 Ctlby tt al v. Wall, 518. 
 
 Cclciiester v. Roberts, 133. 
 
 Cole V. Bealy. 631. 
 
 V. Beardy, 633, 634. 
 
 V. Hawkins, 19. 
 
 V. Terry, 376. 
 
 V. The Hull Dock Co., 108. 
 
 Colebcck v. Peck, 194. 
 Coleman et ux. v. Hnrcourt, 83, 
 
 Coleman v. Kerr, In re, 433. 
 
 V. Sherwood, 131. 
 
 V. The Cork and Yonghal R. 
 
 Co., 228. 
 
 et al V. Traman et al, 260, 267, 
 
 275, 277. 
 Coles V. Coles, 303, 304. 
 
 V. Sherard, 25. 
 
 et al V. The Governor and Com- 
 pany of the Bank of England, 723. 
 
 Collier v. Clarke et al, 292. 
 CoUingbourne v. Mantell, 716. 
 CoUingridge v. Paxton, 367. 
 Collins, In re, 617. 
 
 V. Aaron, 51, 72, 156, 673. 
 
 V. Brook, 66. 
 
 V. Cave, 174, 175, 
 
 V. Collins. 235. 
 
 V. Godefroy, 703. 
 
 V. Goodyer, 679. 
 
 et al v. Johnson, 51, 52, 55, 71, 
 
 72, 146. 
 
 V. Rose, 112. 
 
 V. Shapland, 16. 
 
 et nl V. Yates ct al, 260. 
 
 Collis V. Groom, 199, 498. 
 
 V. Prendcrgast, 174. 
 
 Colstone v. Hiscolbs, 292. 
 
 Colt et al v. Bishop of Coventry, 167. 
 Coltman et al v. Brown, 613, 
 Colton V, McKenzie, 211. 
 Colwill V. Reeves, 730. 
 Comerford v. Daly, 109. 
 Commercial Bank, In re, 174. 
 
 V. Boulton, 92, 154, 
 
 342. 352. 
 
 344, 393. 
 
 353. 
 
 V.Cameron ctal,316 
 v, G. W. R. Co. 276. 
 V. Jarvis et al, 343, 
 
 V. Hughes et al, 68, 
 
 V. Lee etal, 283,287. 
 V. McDonell et al. 
 
 V. William8,391,393 
 
 Compton V. Earl Gray, 260. 
 Comstock V. Leaney, 433, 436. 
 Condlin v. Home District Mutual Fire 
 
 Insurance Co., 162. 
 Conger v, McKeehnie, 277, 651, 
 Conucl v. Watson, 423. 
 Conelly v, Bremner, 99, 447, 689, 704. 
 Conner v. McBride, 389. 
 Connop V. Challis, 87». 
 
 et al V. Levy, 327. 
 
 Conroy v. Pearson, 98. 
 
 Consumers' Gas Co. v. Kissock, 284. 
 
XXVlll 
 
 TABLE OF CASES CITED. 
 
 '\i 
 
 Converse et al v. Michie, 188, 357, 650. 
 Cook V. Smith, 288. 
 Cooko V. Oxley, 3"9. 
 
 V. Ilopowell, 115, 123. 
 
 V. Stnitford, 72, 310, 311, 814. 
 
 Cooling V, Tlio Grent Nortiicrii Rail- 
 way Co., 130, 137, 138, UO. 
 
 CoomUe v. Saii3om. (157. 
 
 Coombs V. Tiie Bristol and Exetor 
 
 Railway Co., 281. 
 Cooper ex jiarte, 6 1 5. 
 
 V. lilick, 122. 
 
 V. Boles, 282. 
 
 V. Brayne, 392, 395, 403, 404. 
 
 V. Dawson, 300. 
 
 V. Evans, 175. 
 
 V. Grant, 637. 
 
 V. Hawkea, 626. 
 
 V. llollaw.ij', C35. 
 
 V. Iluncliin, 196. 
 
 ' V. Lanf!;ton, 140. 
 
 '■ V. Lloj^d, 047. 
 
 V. Nias, 97. 
 
 V. regg, 428. 
 
 V, Paiuter, 622. 
 
 V. Tiffin, 540. 
 
 V. Sanders, 76, 275. 
 
 V. "Waller, 13, 50, 58. 
 
 V. ^Vatson, 077. 
 
 V. Wlioale, 3. 
 
 V. "Wliltehouse et al, 310, 713. 
 
 Cooper's Bail, 665. 
 Cooze V. Neumegen, 287. 
 Copcut V. Great Western R. Co., 647. 
 Cope V. Thames Ilaven Dock and Rail- 
 way Co., 306. 
 Copeland v. Child, 252. 
 Copley V. Day, 194. 
 Coppell V. Smith, 396. 
 Coppelo V. Brown, 14. 
 Coppin et ux. v. Potter, 079. 
 Corah v. Ward et al, 106. 
 
 V. Young, lu4. 
 
 Corbet t. Barnes, 178. 
 
 V. McKenzie, 375. 
 
 Corbett v. Calvin et al, 80, 84. 
 
 d Clymer v. NichoUs, 519. 
 
 V. General Steam Nav. Co., 11. 
 
 V. Powell, 156. 
 
 Corby ot al v. Cortson et al, 311, 322. 
 
 V. Robinson, 20. 
 
 Cordery v. Colvin, 321, 
 Cork & Brandon R. Co. v. Goode, 168. 
 Cornish v. Abingdon, 317, 818. 
 et al V. Hockin, 49, 54, 318. 
 
 V. Ross, 603. 
 
 Corporation of the County of Huron v. 
 
 Armatrong, 176. 
 
 Longueuil 
 
 Cusli- 
 
 Corporation of 
 man, 335. 
 
 of Ludlow V. Tyler, 117. 
 
 of Northumberland and 
 
 Durham and the Corporation of 
 Cobourg, In re the, 226, 227. 
 
 Corrall v. Foulkes, 50. 
 
 Corrigan v. Doyle, 05. 
 
 Corsar et al v. Reed, 533. 
 
 Corscaden v. Stewart, 033. 
 
 Cory et al v. Hotson, 282. 
 
 Cosgrave v. Evans, 703. 
 
 Costello V. Corlett, 423. 
 
 V. Ncsbitt, 393. 
 
 Coster V. Baring, 260, 277. 
 Cotton V. Browne, 723. 
 
 V. McCurrey, 697. 
 
 V. Sawyer, 3, 4. 
 
 V. The Hamilton and Toronto 
 
 Railway Co. 507 
 
 Cotulla V. Soames, 167. 
 
 Coulter V Lee, 501. 
 
 Coupland v. Challis, 716. 
 
 Court V. Partridge et ux. 84. 
 
 Courtauld v. Saunders, 109. 
 
 Courtenay v. Earle, 85, 409. 
 
 Cousins V. Paddon, 126,129,132,713,715 
 
 Coveny v. Gibson, 6S4. 
 
 Covington v. Hogarth, 13. 
 
 Coward v. Baddely, 724. 
 
 Cowburn v. Wearing et al, 72, 70. 
 
 Cowell V. Amnion C(»lliery Co. 212. 
 
 V. Betteley, 6.J2. 
 
 et ux. V. Watts, S4. 
 
 Cowley V. Lydiat, 178. 
 Cowling V. Higginson, 133. 
 Cowlishaw v. Cheslyn, 1;;3. 
 Cowper V. Fairman, 162. 
 
 et al V. Jones et al, 157. 
 
 Cows V. Taylor, 636. 
 
 Cox V. Bockett) 54. 
 
 V. Canonn, 636, 037. 
 
 V. Leeoh, 716. 
 
 V. Thomason, 96, 144, 710. 
 
 V. TuUock, 51. 
 
 Coxhead v. Richards, 720. 
 Coy V. Lord Forester, 731. 
 Crafts V. Wilkinson, 657. 
 Craig et al v. Corcoran, 338. 
 Crake v. Powell, 340. 
 Crauford v. Cocks et al, 76, 313. 
 Craven v. Sanderson et al, 649. 
 Crawshay v. Thompson et al, 470. 
 
 et al V. Barry, 168. 
 
 V. Collins, 2.S5. 
 
 Crawford v. Cobbledike, 325. 
 
 v. Ritchie, 109. 
 
 Credin v. Brook, 79. 
 
TABLE OF CASES CITKD. 
 
 xx^x. 
 
 
 Crcdiii V. Ci-fdin, 209. 
 Crcigliton v. lirowii et al, 226. 
 
 V. Chainbers, 335. 
 
 Crellin v. Calvert, 70. 
 Crernr v. Sodu ft nl, 293. 
 Cresswell V. Ih-d'^us, 120. 
 V. (u-ei'ii, GC8. 
 
 et nl V. Jackson et al, 302, 30-1. 
 
 V. L'ackliiitn, 3«9. 
 
 Crisp V. Groonibridije, B92. 
 Crocker v. I'otherjrill, 551, 552. 
 Croft V. Foulkes, 410. 
 
 V. Lord Element, 039. 
 
 V. Liiinley, 519, 520. 
 
 Crofts V. lirown, 19, 20. 
 
 V. McMaster et a), 325. 
 
 Oromplon v. llut.ton, 702. 
 Cronin v. rurccU, 107. 
 Croiiyii V. I'robal, 436. 
 Crooke v. llice, lo8. 
 
 Crooks V. Chishonm et al, 221, 241. 
 
 V. Davis et al, 100. 
 
 V. Dickson, 216. 
 
 V. House, 109. 
 
 V. O'Grady, 384. 
 
 Croomes v. Slorrison, 263, 264, 268. 
 Crosby v. Innes, 64. 
 Cross ex ))arte, 615. 
 
 et al V. .Jordan, 553, 554. 
 
 V. M'aterliouse, 334, 431, 439. 
 
 V. ■\Vilkiiia, 19. 
 
 Crossfiekl et iix. v. Such, 120, 406. 
 Crost'ey v. lletherington, 404. 
 Crotty V. SiKiiig, 92. 
 
 Cron V. Cron et nl, 9, 26. 
 
 V. Field, 48. 
 
 Crowder v. WagstafT, 672. 
 
 et al V. Long, 388. 
 
 Crowe et al v. McGuire, 517, 571, 633. 
 Crowiiurst et ux. v. Lnverack, 87. 
 Crowley et al v. Page, 305, 306. 
 Crown et al v. McGuiro, 579. 
 Crowther et al v. Duke et al, 327, 329. 
 
 V. Elwell, 143,711. 
 
 Crozer v. Pilling et al, 379. 
 Crucknell v. Ficcraan, l.'f5. 
 Crump V. Adney et al, 129. 
 
 V. Crew, 106. 
 
 Crntchley V. The London and Birming- 
 ham Railway Co., 98, 168. 
 Crysdale v. Moorman, 461. 
 Cul)itt et al v. Thompson et nl, 158. 
 CuUodon V. McDowell, 369. 
 Culley V. Doe d. Taylerson, 533. 
 Culverhouse v. Wickens, 398. 
 Culverwell v. Migee, 27, 50. 
 Cumberland et al v. Ridout ct al, 433. 
 Cunimiug v. Allen, 225. 
 
 Cumming it Graham, In re, 231. 
 
 •' V. Heard, 234. 
 
 Cummins v. Hirkett, 210, 211. 
 CunlifTe ex parte, 615. 
 Cunnack v. Gundry, 90. 
 Curlewis v. Broad, 24. 
 Curran v. Elphinstone, 267, 268. 
 Currey et nl v. Bowker, 287. 
 Currie v. Child et.al, 299. 
 Cnrruthers v. Rykert et ul, 217. 
 Curry v. Almond, 708. 
 
 V. Arnott, 140. 
 
 V. McLeod, 627. 
 
 V. Turner, 673. 
 
 Curtis V. Cutts, 474. 
 
 et ux. V. Jarvis, 566. 
 
 V. Lewis, 108. 
 
 V. Piatt, 282. 
 
 Curwin '■ " Dseley, 11, 12. 
 Cushraan ct al v. Reid, 599, 600, 602. 
 Cussons V. Skinner, 299. 
 
 Cuff V. Sproule, 65. 
 
 Cuthbert v. Street, 282. 
 
 Cuthbertson v. Irving, 157. 
 
 Cutts V. Surridge et al, 130, 160, 167. 
 
 Daines et al v. Ilarlc}', 206. 
 Daintree v. Hutchinson, 718. 
 Daits V. Lloyd et al, 717. 
 Dakin v. Brown et al, 723. 
 
 V. The London and North Wb s 
 
 tern Railway Co. 47.H. 
 Dalrj-mple v. Mullen, 354. 
 Dalton V. Lake, 6Ul. 
 Daly V. Arnold, 111. 
 
 V. Kelly, 275. 
 
 Dane v. llopwood, 105. 
 Daniel et al v. Barry et al, 144. 
 
 et al V. Beadle et al, (192. 
 
 V Bond et al, 260, 2f)l, 276. 
 
 \. Fitzell, 496. 
 
 V. Miilier, 226. 
 
 V. McCarthv, 392, 896. 
 
 V. Wilkin et al, 546, 635. 
 
 Danieli v. Lewis, 166. 
 Daniell v. .laines, 665. 
 
 V. Janus, 35. 
 
 Daniels v. Conrad, 306. 
 
 V. Goinpertz, 674. 
 
 V. Lewis, 141, 142, 709. 
 
 V. May, 679. 
 
 V. Wealds et nl, 692. 
 
 Danvera v. Morgan, 632. 
 Darbishire v. Butler, 164. 
 Darby v. Ouseley, 293. 
 D'Arcy v. White et al, 503. 
 D' Argent v. Vivant, 52. 
 Darling v. Sherwood, 610, 611. 
 
xzx 
 
 TABLE OP CASES CITED. 
 
 Darling v. Wallace, 52'?. 
 
 V. Wright, 653. 
 
 Daunt et nl v. Layard, 238. 
 
 Date V. The Gore District Mutual Fire 
 
 Insurance Co. 116. 
 Davenport T. Jones. 682. 
 Davey v. Pemberton, 261, 276. 
 David V. Preece et al, 310. 
 Davidson v. Bartlett et al, 181. 
 
 v. Boiin, 622. 
 
 V. Cooper et al, 140, 120. 
 
 V. Douglass, 396. 
 
 V. Gauntlett et al, 248. 
 
 V. Moreton, 125. 
 
 V. Stanley, 533. 
 
 Davies v. Lloyd, 11. 
 
 v. Lowndes, 538, 681. 
 
 v. Morgan et al, 18. 
 
 V. Muckle, 104. 
 
 V. Price, 239. 
 
 V. Sherlock, 682. 
 
 V. Stanley, 155, 
 
 V. Thomson, 79. 
 
 ■ V. Westmncott, 19. 
 
 Davis V. Allen, 676. 
 
 •— V. BirdsoU et al, 221. 
 
 V. Carruthers, 49. 
 
 V. Chapman, 131. 
 
 V. Cooper, 56, 67. 
 
 V. Davis, 84, 136, 144, 283. 
 
 v. Dunn, 308, 310. 
 
 V. Getty et al, 244. 
 
 et al V. Jones, 657. 
 
 V. O'Hora, 103. 
 
 V. Potter, 693. 
 
 V. Sherlock, 62. 
 
 V. The London and Blackwell 
 
 Eailway Co. 161, 
 
 V. Thomas, 129. 
 
 V. Trevanion, 6.S6. 
 
 V. Weller, 679. 
 
 V. Williams, 339. 
 
 Davy V. Brown, 51, 671. 
 
 et al V. Cameron, 634, 639. 
 
 Daw V. Hall, 432. 
 Dawes v. Magrath, 632. 
 
 V. Solomon, 10, 64. 
 
 Dawsoii V. Collis et al, 168, 716. 
 
 — V. Karris et al, 337. 
 - ■. Le Captain et al, 20. 
 - '\ M.icdonald, 718. 
 
 - - - . ,'. Malley, 393. 
 
 McDonald, 140. 
 
 ^r. Moore, 723. 
 
 •'■ V. St. Clair, 529. 
 
 V. Wills, 680. 
 
 Day T. Clarke, 424. 
 ~— V. Picton, 424. 
 
 Day V. Vinjin, 279. 
 
 V. Wright, 92. 
 
 Deacon et al v. Stodhart et al, 15$, 
 
 Dean v. Thompson, 111. 
 
 Deane v. llynde, 177. 
 
 Dear v. Knight, 803, 304. 
 
 Dearie v. Kerr, 179. 
 
 Dearie v. Barrett, 122, 
 
 De Bernardy v. Harding, b5. 
 
 Do Bastos V. Wilmott, 657. 
 
 De Bode's Bail, 660, 
 
 Decker v. Shedden, 112. 
 
 Deere v. Ivey, 709. 
 
 — v. Kirkhouse, 693. 
 
 Deerines v. Palmer, 324. 
 
 De Faria v. Lawrie, 268. 
 
 Deflfel et al v. White, 800. 
 
 Delnfield v. Tanner, 64. 
 
 Delahunt v. Bennet, 392. " 
 
 De la Preuve v. Due de Biron, 633. 
 
 De la Rue et al v, Forlescue et al, 175 
 
 De Lisle v. Le Grand et al, 31. 
 
 Dclver v. Barnes, 226, 
 
 De Marneffe v, Jackson, 631. 
 
 Do Medina v. Grove et al, 337, 653. 
 
 V. Norman, 95. 
 
 Demill v. Easterbrook, 32, 60. 
 Dempster et al v, Purnell, 150. 
 Dendy v. NichoU, 563. 
 Dengate et ux. v, Gardiner, 87, 88. 
 Denison et al v. Hardings et al, 20. 
 
 V. Holiday, 539, 650. 
 
 et al V. Mair, 216, 
 
 Denn v. White et ux., 661. 
 Dennett v. Hardy, 287. 
 Denston v. Ashton et al, 632, 
 Dent V. Bashano, 686. 
 
 V. Dent, 392. 
 
 Dentland v. Maitland et al, 4o3. 
 De Pinna v, Polhill, 713, 714. 
 De Pothonier v. De Mattas, 180, 
 Derbishire et al v. Feehan et al, 136,1 43. 
 Derby Commercial Bank Limited v. 
 
 Lumsden et al, 612. 
 Do Roo et al v. Foster, 180. 
 De Rosay v. The Anglo Italian Bank, 
 
 Limited, 237. 
 De Rothschild v. Shilston, 106. 
 Devenoge v. Bouverie, 276. 
 Devenport v. Devenport, 470. 
 Deverill v. Grand Trunk R. Co., 336. 
 Dewar et al v. Swabey et al, 708, 709. 
 De Winton v. Mayor and Corporation 
 
 of Brecon, 393. 
 Dexter v. Fitzglbbon, 223, 230, 
 Diamond v. Gray et al, 108, 
 
 T. Sutton, 44. 
 
 Dicas «x parte, 68S. 
 
TABLE OP CASUS CITF.D. 
 
 XZXl 
 
 Dicns V. Jay, 233. 
 Dicken V. Ncale, 715, 716. 
 Diokens v. Lee, 472, 474. 
 Dickpiison v. Duffil. 631. 
 Dickey ct nl v. Mulhollnnd, 226, 692. 
 Dickie et nl v. Elmslie, <51, 64, 619. 
 Dickinson v. Eyre, 204. 
 Dickson v. IJoulton, 158. 
 
 V. Buller. 634. 
 
 V. McMnhon, 497. 
 
 V. Neath & Brecon R. Co., 889. 
 
 Dignnni v. Ibbotson, 283, 286. 
 
 V. Mostyn, 283, 288. 
 
 Dinimock et nl v. Sturla, 310. 
 Dingley v. Robinson, 392. 
 Disney v. Anthony, 681. 
 Dite V. llawk'T, 149. 
 Dixon V. Baby et nl, 507. 
 
 V. Dane, 294. 
 
 V. Lee, 702. 
 
 V. Tnul et al, 501. 
 
 V. Slcddon, 684, 085. 
 
 V, Smith, 726. 
 
 V. Thorald, 410. 
 
 V. AVigram, 574, 576. 
 
 Dobie V. McFarlane, 69. 
 Dobbs V. Passer, 519. 
 Dobson V. Blackmore, 461. 
 
 V. Brocklebank, 330. 
 
 et al V. Groves et nl, 221. 
 
 V. Richardson, 266. . 
 
 Dockrill v. Boylan, 406. 
 Dod V. Grant, 92. 
 
 Dodd V. Holme, 723. 
 Dodgson V. Scott, 261, 412, 413. 
 Doddrington v. BaiUvard, 242. 
 Dodwell V. Gibbs, 567. 
 Doe d. Agar v. Roe, 515. 
 
 " Andersonetal V. Errington,310 
 
 " V. Todd, 327, 330. 
 
 " Antrobus v. Jepson et al, 283. 
 
 '• Aslin et al v. Summersett, 662, 
 663. 
 
 " Armistcad v. The North Staf- 
 fordshire R. Co. 507. 
 
 " Atkins V. Roe, 516, 
 
 " Atkinson v. McLeod, 509. 
 
 " Ausman V. Munroe,310,812,511 
 
 " et al V. Minthorne, 859. 
 
 " Avery v. Langford, 275. 
 
 " V. Roe, 663. 
 
 " Bacon et al v. Brydges, 611. 
 
 " Baileyetal V.Bennett etux. 579 
 
 " Baker v. Harmer, 631. 
 
 " Banks et al v. Holmes, 228. 
 
 " Baring v. Roe, 515. 
 
 " Barnett et al v. Keen, 637. 
 
 " Barrows v. Roe, 507. 
 
 Doe d. Bather v. Brayno, 293. ' 
 
 " Bayes v. Roe, 516. 
 
 " Beard v. Roe, 603. 
 
 " Beaumont v. Beaumont, 639. 
 
 " Bell v. Roe, 516, 
 
 " Bemer v. Burd, 318. 
 
 " Bennet v. Roo, 616. 
 
 •• Birch v. Phillips, 513. 
 
 " Blackburn v. Standish, 579. 
 
 " v. Roe, 515, 516. 
 
 " v. Slight, 276. 
 
 " Bloomer et al v. Brafisma, 620, 
 
 " Boullott v. Roe, 614. 
 
 " Boidtoa V. Fergusson, 370. 
 
 " V. Switzer, 700. 
 
 " Bower v. Roe, 515. 
 
 " Bowman et al v. Lewis, 526. 
 
 " Boys et al v. Carter, 500. 
 
 " Bradby v, Roo, 510. 
 
 " Brayne et ux. v. Batlier, 578. 
 
 " Bridger v, "Whitehead, 292. 
 
 " Bromley v. Roe, 616. 
 
 " Brown v. Roe, 615. 
 
 " Burnham v. Simmonds, 370. 
 
 " Burnside v. Hector, 327, 330. 
 
 " Butt v. Rous, 530. 
 
 " Cameron v. Robinson et al, 359. 
 
 " Campbell V.Hamilton, 873, 374. 
 
 " V. Thompson, 363. 
 
 " Caps V. Caps, 675. 
 
 " Cardigan v. Roe, 662. 
 
 " Carr et al v. Jourdan, 519, 
 
 " Carter et al v. Roe, 561. 
 
 " Carthew et nl v. Brenton, 233, 
 
 578. 
 
 " Caulfield v. Roe, 563. 
 
 " Chaffey V. Roe, 515. 
 
 " Challis, 619. 
 
 " Chambers v. Law, 578. 
 
 " Child et al v. Roe, 275, 277. 
 
 " Chippendale et al v. Dyson et 
 al, 656. 
 
 " Chippindale v. Roe, 508. 
 
 " Church et al v. Perkins et al, 
 634. 
 
 " Clark et al v. Stillwell, 224. 
 
 " Clifton V. Roe, 514, 
 
 " Clothier v. Roe, 615. 
 
 " Cock v. Roe, 670. 
 
 " Cockburn v. Poc, 515. 
 
 ". Colsou V. Roe, 514. 
 
 " Cooper V, Finch et al, 682. 
 
 " V. Roe, 681, 
 
 " Cotterell, 287, 
 
 " Cotterill et al v. Wylde, 288. 
 
 " Cox V. Brown, 576. 
 
 " V. Roe, 665, 
 
 " Court V. Tupper, 863. 
 
xxsn 
 
 TABLE OF CASKS CITED. 
 
 ,1 
 
 I 
 
 '41 
 
 
 1 .J1i : 
 
 Doo d. Conrtliorpe v. Roe, 515. 
 
 " Civw V. Clarke. 487. 
 
 " Cii](ps V. Wulkcr, 616. 
 
 " Crolcy V. Hoc, r>\i. 
 
 " Cnjoks V. Cuiiiminjj, 109. 
 
 " ft iix. V. Cuhimings, 325. 
 
 " C'roiiL'h V. Koc. 516. 
 
 " Cniiilfy V. iSlmrpley, 662. 
 
 " CnvellitT ct nl v. Jumes, 310. 
 
 " DivnicU V. Woodroffe, 514. 
 
 •• Dmko V. Kowilitch, 65,3. 
 
 •' DavDiiport v. Rhodes et nl, 523. 
 
 " Diiv'ulson et nl v. Oleeson, 330. 
 
 " V. Roc, ()70. 
 
 " Dnvks V. Creed, 622. 
 
 " Dcviiie et al v. Wilson ot al, 302. 
 
 " Dickiua v. Roe, 510. 
 
 " Dixon V. Roe, 552. 
 
 " Dohli"' V. Roe, 515, 
 
 " Doilyo V. Rose, 327. 
 
 " Dolby V. Ilitclicock, 670. 
 
 " Dovaston v. Roe, 516. 
 
 •' Drajjer v. Dyer, 547. 
 
 " Drax V. Killilur, 657. 
 
 " Duchess of ilaiuilton v. Atherly 
 
 et al, 578. 
 
 " Dungeon ct al v. Martin ct al,334 
 
 " Duniop V. Roe, 670. 
 
 " Dumi V. Roe, 670. 
 
 " Duntze v. Duntze, 202, 205. 
 
 •' ])«rant v. Roe, 504. 
 
 " Earl of Dradford v. Roe, 501. 
 
 " Slirewsbury v. Wilson, 
 
 5,-; 3. 
 
 " Katon V. Roe, 515. 
 
 K\',vvi:i V. iloiitreuil, 8S. 
 
 " Edwards et al v. Gunning et al, 
 
 500. 
 
 " V. Leach, 310. 
 
 " F.i;reinont v. Ste^jhens, 539. 
 
 " Elnisley el ux. v. McKenzie,370. 
 
 " Errington v. Errington, 520. 
 
 " Evans v. tSnend et nl, 679. 
 
 " Fariicombe et nl v. Roe, 515. 
 
 " Feluon v. Roe, 578. 
 
 " P\'ll()we8 et nl v. Alford, 519. 
 
 " Field V. Roe, 516. 
 
 " Filliter, 549, 500. 
 
 " Fish V. McDonnell, 64. 
 
 " Fisher ct ux. v. Prosser, S37. 
 
 " V. Roe, 515, 516.- 
 
 " Fishmongers' Co. v. Roe, 516. 
 
 " Flanders et al v. Roe, 679. 
 
 " Folkes V. Roe, 508. 
 
 " Foncan v. Roe, 563. 
 
 " Forster v. Wandlcss, 563, 555. 
 
 " Fowler v. Roe, 516- 
 
 " Frith V. Roe, 614. 
 
 Doe d. Frost v. Roe. 503. 
 
 " Frvlor V. Crisp. 050. 
 
 " Galbrnith v. Walker, 218. 
 
 " George v. Roe, &15, 
 
 " Gehlnrt v. Roe, 503. 
 
 " Gibbard v. lloo, 515. 
 
 " Gilbert ct nl v. Ross. 583. 
 
 " Ginger v. Roc, 515. 
 
 " Grniinm v. Edmondson, 334. 
 
 " Grnngo v. Roe, 514. 
 
 " Grant V. Roe, 081. 
 
 " Gray v. Roe, 615. 
 
 " Greenshields v. Garrow, 352, 
 356. 371. 
 
 " Greer et al v. Kelly, 0:^3. 
 
 " Gretton ct al v. Roe, 5")4. 
 
 " Grocers' Co. v. Roe, 519. 
 
 " Grove V. Jioo, 514. 
 
 " Gosley v. Goslcy, 295. 
 
 " Gowlnnd v. Roe, 503. 
 
 " Ilageriuan v. Stronc et al, 292, 
 353. 
 
 " Haggett V. Roe, 510. 
 
 " Ilnrcourt v. Roe, 500. 
 
 " Ilnrleigh v. Roe, 515. 
 
 " Harlow et nl, 567. 
 
 " Harris v. Masters, 555, 559, 560. 
 
 " V. Roe, 515. 
 
 " Harrisoft v. Ilarapson, 539. 
 
 " et al V. Loujh, 576, 677 
 
 " Harvey, 551. 
 
 " Haverson v. Franks, 555. 
 
 " Haxby v. Preston et al, 242. 
 
 " Hay V, Hunt, 534, 539. 
 
 " Heighley v. Ilarland ct al, 678. 
 
 " Hellier v. Roe, 614. 
 
 " Hellings et ux. v. Rird, 537. 
 
 " Ucllyer v. King, 526. 
 
 " Henderson v. Burtch, 353. 
 
 " Henson v. Roe, 516. 
 
 " Hiblethwaite et al v. Roe, 519. 
 
 " Hitchings et al v. Lewis, 554, 
 656. 
 
 " Holder et al v. Tiushworth, 563. 
 
 " Hope et al v. Roe, 514. 
 
 " Horton V. Rhys, 519. 
 
 '' Hudson V. Jameson, 520. 
 
 " V. Roe, 536r 
 
 " — .: V. The Leeds & Brad- 
 ford Railway Co. 517. 
 
 " Hull V. Wood," 802. 
 
 " Hunter et al v. Roe, 514, 515. 
 
 " Hnrat et al v. Clifton, 574. 
 
 " Hussey v. Roe, 578. 
 
 " Hutchinson v. The Manchester, 
 Bury<fc RossendaleR.Co.507. 
 
 " James et al v. Stanton, 508. 
 
 " Jenkins v. Roe, 515. 
 
TABLE OT CASES CITED. 
 
 ZZXlil 
 
 i3-l. 
 
 r, 352, 
 
 nl, 292, 
 
 59, 500. 
 
 530. 
 )7(5,577 
 
 2-12. 
 
 al, 578. 
 
 537. 
 
 53. 
 
 oe, 519. 
 13, 551, 
 
 •th, 563. 
 
 0. 
 
 ife Brad- 
 
 4, 515. 
 )74. 
 
 jchester, 
 
 .Co.5')7. 
 508. 
 
 SDoe d. Jessup t. Bartlet, 853. 
 
 " Johnson v. Roo, 616. 
 
 " Jones et al v. Jones, 682. 
 
 « etux. V.Powell, 247, 248. 
 
 " Keogh V. Calhoun, 868. 
 
 " Kerr et al v. Shaff, 647. 
 
 " Kimber v. Cafe, 628. 
 
 " Kindorsley et al v. Hughes et 
 
 al, 662, 663. 
 
 " King's College v. Roe, 64. 
 
 " Kingston v. Kingston, 636. 
 
 " Kirschner v. Roe, 616. 
 
 " Lake v. Davis, 579. 
 
 " Lambert v. Roe, 660. 
 
 " Laundy v. Roo. 616. 
 
 " Laurason v. Canada Co. 859. 
 
 " Lawrence et al v. Shawcross, 
 
 558, 564. 
 
 " Ledger v. Roe, 819. 
 
 " Leigh V. Hold, 323. 
 
 " Levi et al v. Roe, 664. 
 
 *' Lick V. Ausnaan, 816. 
 
 " Lloyd V. Roe, 622, 624, 636. 
 
 " Locke V. Franklin, 619, 647. 
 
 " Lord Aylesbury v. Roe, 615. 
 
 " Darlington v. Cock et al, 
 
 607, 608, 616. 
 
 " Dinorben v. Roe, 616. 
 
 " Loscombe et al Clifford, 309. 
 
 " Lowndes v. Roe, 614. 
 
 " Lyons v. Crawford, 627, 669. 
 
 " Madkins et al v. Horner et al, 
 
 226, 
 
 " Mann v. Roe, 614. 
 
 " Marks et al v. Roe, 664. 
 
 " Marquess of Bath v. Roe, 514. 
 
 " Marquis of Anglesey v. Brown, 
 
 664. 
 
 " Marr v. Marr, 297. 
 
 " Marriott v. Edwards, 309, 310, 
 
 821, 609. 
 
 " Martin v. Martin, 281. 
 
 " Mayhew v. Asbv, 660. 
 
 *' Mays V. Cannelf, 228, 241, 248. 
 
 " Mee et al v. litherland et al, 
 
 619. 
 
 " Mence et al y. Hadley, 702. 
 
 " Meyers v. Meyers, 370. 
 
 " Meyrick v. Roe, 619. 
 
 " Middleton v. Roe, 616. 
 
 " Miller et al v. Rogers, 810. 
 
 " Miller v. Tiffany, 371, 873. 
 
 '• Milburne v. Sibbald, 676. 
 
 " Mills V. Kelly, 870. 
 
 ^' Morgan t. Roe, 616. 
 
 " V. Rotherham, 5«2,RM. 
 
 " Morland t. Bay lias, fil4, etO. 
 
 ■" Morris v. Roe, 278. 
 O 
 
 Doe d. Morris v. Rosser, 242. 
 
 " Mudd V. Suckerraoce, 801, 802. 
 
 " MuUarky et al v. Roe, 619. 
 
 " Murphy v. Moore et al, 616. 
 
 " McDonald v. Long, 218. 
 
 " V. Twigg et al, 299. 
 
 " McGregor v. Grant, 384. 
 
 " McKay v. Purdy et al, 292. 
 
 " V. Roe, 679. 
 
 " McKenzie v. Rutherford, 676, 
 
 " McLean v. McDonald, 677. 
 
 " McLeod V. Johnston, 679. 
 
 " Nash V, Roe, 616. 
 
 " Newstead v. Roe, 661. 
 
 " Norman v. Roe, 607. 
 
 " Nottage V Roe, 616. 
 
 " Overton v. Roe, *15, 
 
 ** Overy v. Roe, 616. 
 
 " Oxenden v. Cropper, 226. 
 
 " Pamphiloa v. Roe, 616. 
 
 " Parsons v. geather, 610, 611. 
 
 " Pattison v. Roe, 616. 
 
 " Peach v. Roe, 508. 
 
 " Pearson v. Roe, 619. 
 
 " Pemberton et al v. Roe, 661. 
 
 •' Peter v. Peters, 279. 
 
 " Peterson v. Cronk, 88. 
 
 " Pinchard v. Roe, Xi78. 
 
 " Pitcher v. Roe, 636, 
 
 " Phillips v. Roe. 661, 664. 
 
 " v. Rollings, 206. 
 
 " Place et al v. Skao, 292. 
 
 " Pollen v. Roe, 619. 
 
 " Poole et al v. Errington, 73, 
 
 310, 818. 
 
 " Pope V. Roe, 616. 
 
 " Postlethwaitev.Neale, 516,635 
 « Powell V, Roe, ^54, 
 
 Prescottv. Roe, 60, 678. 
 
 Prothero v. Roe, 516. 
 
 Rabbits et al v. Welch, 611. 
 
 Read v. Paterson et al, 283. 
 
 V. Roe, 616. 
 
 Rees V. Dick, 330, 
 
 V, Howell, 647, 636. 
 
 V, Thomas, 679, 
 
 Reimer v. Glass, 831. 
 
 Reynolds v. Roe, 616, 
 
 Ringer v, Blois, 829. 
 
 Roe, 310, 616, 616, 66K. 
 
 Roberts et «1 v. Roe, 614, 628, 
 630. 
 
 Ross V. Roe, 614. 
 
 Royale etal v. Roe,:515. 
 
 Sampson y. Roe, 664. 
 
 SaDders y. Roe, 662. 
 
 Saandersy. The Duke of New- 
 castle, «09,; 623. 
 
 « 
 
 « 
 
 
 M 
 « 
 
xzziv 
 
 TABLE OP OASES CITED. 
 
 Doe 
 
 X 
 
 l< 
 li 
 
 d. Sanderson v. Roe, 670. 
 
 Saxton et al v. Turner, 609, 823. 
 Schovell V. Roe, 607. 
 Scholcfield v. Alexander, 663. 
 Selby V. Alston, 678. 
 
 V. Dusten, 630. 
 
 Selgood V. Roe, 662. 
 Shannon v. Roe, 677. 
 Shaw V. Roe, 619. 
 Sheldon v. Ramsay et al, 626. 
 Sherwood v. Roe, 670. 
 Shortts V. Roe, 614. 
 Shuter et al v. Maclean, 675. 
 Simpson v. Hall, 810, 611. 
 
 V. Puvat, 869. 
 
 V. Roe, 517. 
 
 Sinclair v. Arnold, 810, 611. 
 Smelt V. Fuchan, 666. 
 Smith V. Roe, 607, 608, 616. 
 
 et al V. Webber, 143, 626. 
 
 Somers et ad y. Brood, 633. 
 Spafford v. Brown, 862. 
 Standish et al v. Roe, 678. 
 Stevens v. Lord, 636. 
 Stippens v. Lord, 330. 
 Story V. Roe, 615. 
 Strong V. Jones, 626. 
 Swinton v. Sinclair et al, 421. 
 Sykes et al v. Durnford, 299. 
 Taggart v. Butcher, 196. 
 Taylor v. Coates, 515. 
 
 et al V. Crisp, 194, 206. 
 
 V. Johnson, 663. 
 
 Tenbroke v. Cole, 824. 
 
 The Governors of the Greycoat 
 
 Hospital V. Roe, 615. 
 Thomas v. Field, 662. 
 Thompson v. Hodgson, 282,566. 
 Thomson y. Roe, 519, 
 Threader y. Roe, 516, 616. 
 Tilyard v. Cooper, 519. 
 Timothy y. Roe, 507. 
 Tindal v. Roe, 279, 562. 
 Tindall v. Roe, 280. 
 Tolson et al v. Fisher, 633. 
 Topping y. Boast, 563, 
 Troughton y. Roe, 519. 
 Tubb v. Roe, 674, 675. 
 Turnbull et al y. Brown, 246. 
 Upton et al y. Witherwick, 561. 
 Vaughan et al v. Thru8tout,633. 
 "Vernon et al y. Roe, 623. 
 Visger v. Roe, 614. 
 Walker v. Roe, 670. 
 Watson v. Roe, 815. 
 Wartney y. Grey, 281. 
 Watts y. Roe, 662. 
 Wawa V. Horn, 622, 638. 
 
 I:t'/iii 
 
 Doe d. Webb et al v. Hull, 623. 
 
 " Webster v. Fitzgerald, 303. 
 
 " Weeks v. Roe, 616. 
 
 " West V. Davis, 653. 
 
 " Wethercll v. Bird, 278, 279. 
 
 " White V. Roe, 687. 
 
 " Whitfield V. Roe, 660, 
 
 " Whittington y. Hards, 619, 636, 
 549. 
 
 " Whitty et al v. Carr, 648. 
 
 " Wilkes V. Babcock, 526. 
 
 " Wilks V. Massacar, 837. 
 
 " Willis V. Birciimore et al, 522. 
 
 " Willsman, 551, 667. 
 
 " Williamson etalv. Roe. 617.682 
 
 " Wilton et ux. v. Beck et al, 61 1. 
 
 " Wingfieldv. Roe, 6i4. 
 
 " Worthay v.Roe, 616. 
 
 " Wright, 651, 667. 
 
 " etalv. Smith, 278, 279. 
 
 " Wyatt v. Byron et al, 660. 
 
 " v. Stagg, 386. 
 
 " Young v. Smith, 373. 
 Donaldson v. Thompson, 717. 
 Donatty v, Barclay, 669. 
 Doncaster v. Cardwell, 286. 
 Donnelly y. Darcy, 108. 
 
 v. Gibson, 436. 
 
 Donlan y, Brett, 222, 
 
 Doo V. Butcher, 60, 
 
 Dorman v. Rawson, 352, 355. 
 
 Dormay y. Borrodaile, 471. 
 
 Domett et al v. Young et al, 119, 123. 
 
 Dossett y. Gingell, 227. 230, 
 
 Dougall y. Maclean, 52. 
 
 y. Turnbull, 359. 
 
 Douglass y. Bradford, 370. 
 Dowoiggin v. Harrison, 193. 
 Dowdall y. Dowdall, 1()7. 
 Dowgall y. Bowman, 140. 
 Dowle y. Ncale, 575, 576. 
 Dowling v. Betjeman, 406. 
 v. Foxall, 656, 557. 
 
 y. Harman, 631, 633. 
 
 y, Powell, 493. 
 
 v. Sadleir, 106. 
 
 Downes y. Garbutt, 3, 636. 
 Dowse y. Coxe, 223. 
 Doyle y. Hammond, 105, 108. 
 Drabble y. Denhain, 668. 
 
 y. Donner, 281. 
 
 Drage v. Bird, 20, 
 
 y. Brand, 200. 
 
 Drain y, Harvey, 184, 
 
 Draine y. Russel et ux., 329, 331. 
 
 Drake y, Lewin, 122. 
 
 v, Pickford, 286, 
 
 Drayson et al y, Andrews, 336. 
 
 
TABLE OF CASES CITED. 
 
 XXXV 
 
 3. 
 , 303. 
 
 i, 210, 
 
 ■ 610, 636, ;| 
 
 648. 
 i26. 
 37. 
 et ftl, 622. 
 
 00.617.682 
 ketal, 611. 
 A. 
 L6. 
 
 th. 278, 279. 
 
 a\, 660. 
 
 ;6. 
 
 73. 
 
 717. 
 
 16. 
 
 356. 
 
 ftl, 119, 123. 
 ;30. 
 
 193. 
 
 k6. 
 |667. 
 633. 
 
 |36. 
 108. 
 
 329, 331. 
 ja, 336. 
 
 Dvpnn V. Siiiitli, Ct!>. 
 iJrL'ssci- V. (Miirko, .'U6. 
 
 V. Jones, ;{!)3. 
 
 l)ri;\vt! V. L.uiiiiion I't ul, .T55. 
 
 Ui'iiikwatcT V. Alills, 5Jil. 
 
 Drivir d Uxi'iiduii et ul v, Liiwroncc, 
 
 (ill). 
 Drmnmond v. Brmllm', 151. 
 
 V. Piifon, 72;}, 724. 
 
 V. Tiiliiifj;liist, 03 1. 
 Diury >t Lynu, lie, 245. 
 Dry V. Koe, 516. 
 
 I Diiljcrlfy V. I'ngo et al, 143. 327. 
 j Dublin & Winklow II. Co. v. Black, 104. 
 I Dtiliois V. Lontlier, 19. 
 j l>ii('iit V. Sweeney et al, 86. 
 IDuckworth v. Harrison, 309, 311,711. 
 - d. Tubley et al v. Tiinatali, 
 560. 
 
 hidden v. Triquet, 118. 
 )ud]jreon v. Dudgeon, 5.'?7. 
 )ueer v. Triebuer, DO, 158. 
 )uffill V. Lawder, 517. 
 )uggau V. Bright, 210. 
 V. Derricif, 36. 
 )uke et al v. Dive, 161. 
 
 of Beaufort v. Vivian, 728- 
 of Bedford v. British Museum, 
 470. 
 of Brunswick v. Pepper, 726. 
 V. fcjloinan et al, 
 
 51), 154, 078. 
 de Monteliano v. Christin, 631. 
 of Norfolk V. Leicester, 413. 
 of yomerset v. Cookson, 405. 
 ikes V. Costing, 724. 
 nbar v. Russell, 392. 
 ncan v. Scott, 270. 
 nconib V. Mayer, 406. 
 nconibe v. Crisp, 678. 
 ncuft V. Albrecht, 361. 
 iiford et al v. Trattles, 723, 724. 
 iimore v. Tarloton, 138, 141, 147, 
 
 157, 158. 
 nn V. Aslett, 304. 
 
 V. Coutts, 289, 325, 826, 329. 
 V. Crease, 143. 
 V. Harding, 25. 
 V. Hodson, 99. 
 V. Loftus, 118. 
 V. Naylor, 475. 
 V. Warlters, 093. 
 V. West, 662. 
 ne V. Gumley, 134. 
 V. O'Reilly, 616. 
 sany, In re, Baroness, 47. 
 ston T. Paterson, 144. 
 rant v. Blurton et al, 637. 
 
 Dury, In ro, A Lyne, 217. 
 Dusiiline V. Hamilton, 660. 
 Dwyer v. Collins, 281, 282. 
 
 Rades v. Everett et al, 143, 711. 
 
 V. McGregor, 135. 
 
 l']rt(lon V. Roberta, 61, U7. 
 
 Eager v. Cuttrili, 324. 
 
 Eakiiis V. Christopiier, 160. 
 
 Earl of Aldborough et al v. Bland et 
 
 al, 634. 
 Darnley v. The Proprietors, «t'c., 
 
 of the London, Chatham & Dover 
 
 Railway Co. 239. 
 
 Ferrars v. Robins, 031. 
 
 of Kingston v. Sliceby, 631. 
 
 of Listowoil V. Greene, 551. 
 
 Lucan v. Smith, 725, 720. 
 
 Meyborough v Bower, 469. 
 
 of Norbury v. Kitchen, 335, 633. 
 
 Ripon et al. v. Hobart et al, 469. 
 
 — Romney v. The Inclosure Com- 
 missioners, 469. 
 
 Spencer v. Swannell, 720. 
 
 Earle v. Ilinton, 412. 
 
 V. Oliver, 199. 
 
 Eastern Counties Railway Co. v. Rob- 
 ertson, 222. 
 
 Union Railway Co. v. Symonds, 
 
 325. 
 
 Easter v. Edwards, 062. 
 
 Easton v. Pratchett, 719. 
 
 Eastwick v. Ilarman, 17, 149, 721. 
 
 Eastwood V. Kenyon, 713. 
 
 Eaton v. Skuckburgh, 324. 
 
 Eccles V. Cole, 48. 
 
 et al V. Harper, 337. 
 
 V. Johnston, 158. 
 
 et al V. Paterson et al, 506, 520. 
 
 . Eddin v. Ward, 92. 
 Eddison v. Peagram, 126. 
 
 V. Pigram, 114, 717. 
 
 Eden v. Tuttle, 130, 471. 
 Edenson v. Hoffman et al, 142. 
 Edgell V. Dallimore, 224. 
 Edgington v. Proudman, 034, 6S5. 
 Eldinburgh and Leith Railway Co. v. 
 
 Dawson, 631, 033, 634. 
 Edison v. Hogadone, 318. 
 Edmonds, Ex parte, 679. 
 
 V. Chaliis et al, 282, 299. 
 
 Edmunds v. Greenwood, 264, 266. 
 
 V. Keats, 665. 
 
 Edwards v. Bates ct al, 713. 
 
 et al V. Bennet, 537. 
 
 V. Bethel, 143. 
 
 v. Bloat, 339. 
 
 V. Collins, 10, 50, 52, 677. 
 
ZZXVl 
 
 TABLE OP OASES CITED. 
 
 
 Edwnrds v. Dnnku, 678. 
 
 V. Davioa, 241, 248. 
 
 V. Dif^nnm, 11. 
 
 V. Kdwnrds, 212. 
 
 V. Griffith, 618. 
 
 V. Hnlliday et al, 630. 
 
 V. Hodges, 816, 317, 731. 
 
 V. Jameson, 669. 
 
 V. Jones, 428, 424. 
 
 V. Lowndes, 461. 
 
 — et ux. V. Martin et al, 196, 
 
 et ux. V. Mnrtyn et al, 61. 
 
 et al V. Matthews, 298. 
 
 T. Price et al, 119. 
 
 The Great Western Railway 
 
 Co., 280. 
 
 et al T. Wokefield, 266. 
 
 Wood V. Baldwin, 476. 
 
 Egan V. Cowai., 00. 
 Ehrenspergflr v. Anderson, 281. 
 Ekins V. Evans, 162. 
 Eisdell V, Coningham, 896. 
 Eldelton v. Emmens, 103, 129, 420. 
 Electric Telegroph Co. v. Nott et a, 470 
 Eliot V. Morgan, 68. 
 Etkin V. Baker, 174. 
 
 V. Janson, 131, 292. 
 
 Elkington v. Holland, 688. 
 E'laby v. Moore, 647. 
 Elliot V. Gutteridge, 662. 
 Elliott V. Bishop, 128, 203, 208. 
 
 et ux. V. Kemp, 780. 
 
 V. Mason, 178, 176. 
 
 V. Plnkerton, 682. 
 
 V. Royal Exchange Assurance 
 
 Co., 284. 
 
 V. Thomas et al, 713. 
 
 Ellis V. Trusler, 285. 
 EUiss V. Elliss, 609. 
 Elliston V. Robinson, 12. 
 Ellston V. Deacon, 318. 
 Ellyatt V. Ellvatt et al, 835. 
 Elmore v. Colman, 433. 
 Elton V. Larkins, 278, 306. 
 Elvige V. Boynton, 327. 
 
 Elwell V. The Grand Junction Rail- 
 way Co., 1 26. 
 El wood V. Bullock, 684. 
 
 et al V. Christy et al, 476, 
 
 V. Pearce, 14. 
 
 Emblin v. Dartnell, 889, 648. 
 Emerson v. Brown, 67. 
 Emery v. Clark, 724. 
 
 — et al V. Howard, 287. 
 
 V. Iredale, 481. 
 
 V. Webster. 124, 816, 817, 820. 
 
 Emet V. Ogden, 281. 
 Emmett t. Standen, 124. 
 
 Kniporor of Briizil v. Robinson ot al, 
 
 631. 
 Er-.pson v. Fairfax et al, 143, 144, 702. 
 Kiideld V. Hull, 6:U. 
 Entail et al v. Druce, 281. • 
 England v. Cnrliiic. 470, 472. 
 
 et al V. Watson, 120. 
 
 EngI(!lioart v. Eyre et al, 9, 10, 63, 343 
 
 349. 
 Englcr V. Twisden, 422. 
 Engstrom v. Brightman, 206. 
 Ennor v. Barwell, 273. 
 Enright v. The Promoter Ins. Co., 100 
 Ernest v. Brown, 17, 721. 
 Erwin v. Powley, 18. 
 Esdoilo et al v. Lund, 79. 
 Estcourt ex parte, 615. 
 Ethersay v. Jackson^ 287. 
 Evans v. Arnold, 177. 
 
 V. Bidgood, 14. 
 
 V. Brcmridge, 176. 
 
 V. Chester. l«iJ. 
 
 et al V. Collins et al, 421. 
 
 V. Dt'legal, 276. 
 
 V. Dublin and Drogheda Rail- 
 way Co. 22. 
 V. Elliot et al, 661. 
 
 V. Evana, 4h5. 
 
 v. Fryer, 71, ao9. 
 
 V. Jackson, 210. 
 
 V. Jones, 27, 446, 704. 
 
 V. Kingsroill, 144. 
 
 V. Louis, 269. 
 
 V. Ogilvie, 133. 
 
 v. P., an Attorney, 614. 
 
 v. Powis, 311. 
 
 V. Rees, 426. 
 
 V. Rielly, 682. 
 
 V. Robinson, 837. 
 
 V. Senior, 1 11. 
 
 V. Shaw, 87. 
 
 V. Walton, 119. 
 
 V. Whitehead et al, 9. 
 
 Everard v. Paterson, 239. 
 
 et al v. Poppleton et al, 6."8. 
 
 Every v. Wheeler, 146, 148. 
 
 Evitt V. Price, 472. 
 
 European & Amer. Steam Shipping Co, 
 
 T. CroBskey et al, 238. 
 European Central Railway Co. v. 
 
 Westall, 175. 
 Ewer et al v, Ambrose, 803. 
 
 V. Jones, 183. 
 
 Ewing et al v, Lockhart, 678. 
 Exall V. Partridge et al, 718. 
 Eyre et al v. Archer, 176. 
 
 V. Baldwin, 681. 
 
 V. Scovell et al, 138. 
 
TABLE OF CASES CITED. 
 
 XXXVU 
 
 Kyre v. Sparks, f.34. 
 
 V. \fiMi, '.». 
 
 Fal)iiui V. Winston, B.'iS. 
 I"'nl)ii;;a9 v. Mosfyn, 631. 
 Fa;;uii. In ro, OHU. 
 
 V. lliirricon, '.t7. 
 
 Fii;;!!: V. Miiilil. 103. 1(5"', 102. 
 Tair A lUiUt, Ho. ::.')«. 
 Fairman v. Whiti', 517, 618. 
 Fairtliorno v. lila(|nu'ru, tiSii. 
 Faillil'iil V. Aclily. i'2-i. 
 Falls ft a\ V. L<'wis, 433. 
 Fiino V. Cokcii. CO, 07. 
 Fannin v. AiultTson, ICl. 
 Farr v. Dunn, 1S8. 
 Farkey et nl v. Hiiiint et al, 422. 
 FiiiT V. Atlerly, :h.03, 
 
 V. UobiiiH, JifiS. 
 
 Farraiit mid tioDilrirli, In ro, flSO. 
 Furri'll V. Fn^nn, 2f;3. 
 
 V. (iluc'non et al, 411. 
 
 Farrer v. Beswick, 724. 
 
 V. Cock, 3 1 8. 
 
 V. De Flinn, 640. 
 
 Farthing v. Cnstfld. 328, 880. 
 F'arwijLj v. Cockcrton, 93, 287. 
 Faulkner v. Ciiovell, 7"(). 
 
 V. Brine et al. 804. 
 
 V. Siiultcr, 222, 227. 
 
 FaviL'U V. The Easiurii Counties Rail- 
 way Co. 222, 226, 247. 
 Fawcett v. Mothersell, 335. 
 Fay V. Prentice et al, 86. 
 Fazrtkerley v. Rof^orson, 700. 
 Featherstono v. Bourne, 330. 
 Fcevaz v. NichoUa. 718. 
 Feiijo V. Thompson, 318. 
 Felkin v. Lord Herbert et al, 277. 
 Fc'lton V. Conley, 651. 
 Fenn v. Grnfton et al, 729. 
 
 V. Green, 282, 283. 
 
 d. Knight v. Dean, 614. 
 
 Fennell v. Smith et ul, 378. 
 
 V. Tail, 267. 
 
 Fenney v. Forward, 2f>5. 
 Fenton v. Anslice, 112. 
 
 V. Ruggles, 067. 
 
 Fenwick v. Laycock, 713, 718. 
 Ferean v. Watley, 86. 
 Ferguson v. Carman, 397. 
 
 V. Mahon. 327. 
 
 V. Mitchell, 96. 
 
 Ferkin v. Edwards, 281. 
 Ferrer et nl v. Oven, 223. 
 Ferrie et al v. Lookhart, 026. 
 
 V. Mingav, 378. 
 
 V, Tannahill, 62, 284. 
 
 Forrie et al v. 0. W. R. Co., 260, 269. 
 Ferrler v. Moodio, 026, 630, 679. 
 Folherstone v. Cooper, 221, 244. 
 Fevor v. Aubin, 386. 
 Fowings V. Tlsdal, 86, 199. 
 Fidgott V. I'enny, 718. 
 Field q. t. v. Cnrron, 632. 
 V. Fleniniing, 279. 
 
 V. Partridge, 649, 631. 
 
 V. Pooley et ul, 217. 
 
 T. Sawyer, 146, 164, 312. 
 
 et al V. Woods, 718. 
 
 Fields V. Livingston et al, r>12. 
 Fife V. Round, 43. 
 
 Filbie v. Hopkins, 676, 677. 
 Filmer v. Burnby. 86. 686, 713. 
 Finleyson v. Mackenzie, 123. 
 Financial Corporation (Liiii.) v. Price, 
 
 .389, 393. 
 Finch V. Brook, 053. 
 
 V. Cocken et nl, 659. 
 
 Finlay v. Lindsoy, 276. 
 
 Finlayson v. Mackenzie, 717. 
 
 Finney v. Forwood et al, 512. 
 
 Firley v. Rallett. 62, 677. 
 
 Firmin v. Perry, 44. 
 
 Firmstonoetal v. Wheeleyetal, 85,463 
 
 Firth V. Robinson, 227. 
 
 Fischer v. Ilahn, 253. 
 
 Fish V. Horner, 660. 
 
 Fisher et al v. Beach, 177. 
 
 V. Bridge J, 840. 
 
 V. Brooks, 353. 
 
 V. City of Kingston, 436. 
 
 V. Clement, 725. 
 
 V. Cox, 27. 
 
 et al V. Edgar, 342. 
 
 V. Ferris, 85. 
 
 V. Ford, 103. 
 
 V. Goodwin, 19. 
 
 V. Grace, 2, 855. 
 
 V. Johnston, 631. 
 
 V. Lidier, 330. 
 
 V. Nicholas, 637. 
 
 V. Ronalds, 267. 
 
 V. Snow, 627. 
 
 V. Sulley, 497. 
 
 V. Thayer, 679. 
 
 V. The Thanaes Junction Rail- 
 way Co., 730. 
 
 Fishmongers' Co. v. Dunsdale et al, 299. 
 
 V. Robertson et al, 650 
 
 Fitch V. Toulmln, 117. 
 Fitzgerald v. Christmas, 277. 
 
 V. Evans, 14, 20. 
 
 et al V. The London Co- 
 operative Asaociatloo (Limited), 
 126, 716, 
 
ZXXVUl 
 
 TABLE OP CASES CITED. 
 
 Fitzgerald y. Graves et al, 227, 
 
 V. Ilusscy, 557, 658. 
 
 V. Villiers, 5G. 
 
 V. Whitraore, 631. 
 
 Fitzpatrick v. Dooley, 634. 
 
 V. Pine, 94. 
 
 Fitz Walter Peerage Case, 301, 
 
 F'agg V. Borsley, 155. 
 
 Flaherty v. Mairs, 91. 
 
 Fleet V. Forrins, 262. 
 
 Fleming v. Executors of Wilkinson, 353 
 
 V, Wilkinson, 816. 
 
 Fletcher v. Everard, 639. 
 
 V. Lechmere, 75, 82. 
 
 V. Lew, 630, 633, 634. 
 
 Flight V. Cook, 32. 
 
 V. Gray, 172, 174. 
 
 i- V. Smale. 138, 147. 
 
 ot al V. Thoinaa, 724, 725. 
 
 Flinn v. Perkins, 188. 
 Flitcroft V. Flether, 265. 
 Flockton et al v. Hal' et al, 153. 
 riood V. Wilson, 275, 
 
 Flower et al v. Allan, 19, 20, 
 
 V. Bright, 446, 704. 
 
 V. Gardner, 702. 
 
 Flowers v. Welch, 1, 286. 
 Flj'nn V. Robertson, 225. 
 Fralick v. Huffman, 5, 694. 
 Foley V. Eotfield, 207. 
 Follis V. Todd, 632. 
 Folkard v. Fitzstubbs, 6. 
 Foote V. Dick, 677. 
 Forbes v. Crow, 285. 
 
 et al V. Smith, 43, 56. 
 
 Ford V. Beech, 127. 
 
 V. Boucher, 631. 
 
 V. Grey, 537. 
 
 V. Lacey, 3:^5. 
 
 V, Leche, 727. 
 
 V. Loresher, 470, 477. 
 
 V. Mead, 179. 
 
 V. P'^ering, 405. 
 
 V. S .> 'v,^633. 
 
 V. St..'y, 852. 
 
 Fornian v. Dawes et al, 310, 731. 
 Forsiiaw et al v. Lewis et al, 25 S, 277. 
 Forster v. Betts el m, 131. 
 
 V. Forster et al, 678. 
 
 V. Hodgson, 635. 
 
 V. Jackson, 179. 
 
 Forsyth v. Bristowe, 157, 153. 
 Fortet al v. Oliver, 195. 
 Fosbery v. Butler et ux., 329. 
 Foss V. Wagner, 031. 
 
 Foster v. Bank of England, 275. 
 
 V. Jackson, 178. 
 
 V. Jolly, 719. 
 
 Foster v. Pointer, 281, 427, 430, 
 
 V. Prynie, 98. 
 
 et al V. Smith, 856, 
 
 Fotherby v. Metropolitan R, Co., 461. 
 Fothergill v. White, 513. 
 
 Foulkes V. Burgess, 673. 
 
 et al V. Marsh, 424. 
 
 V. Scarfe et al, 129. 
 
 Fountain v. Boodle et nx., 726. 
 V. Smith, 87. 
 
 V. Steele, 684. 
 
 Fowell et al v. Petre, 677. 
 Fowler v. Coster, 291. 
 
 et al V. Rinkerby et al, 411, 
 
 V. Roberts, 389. 
 
 Fowler's Bail, 667. 
 Fowncs V. Stokes, 52. 
 Fox V. Atkinson, 634. 
 
 V. Chandler, 14:>. 
 
 et al V. Money, 27, 52, 
 
 France v. Campbell, 367. 
 
 V. Lucy, 281. 
 
 et al V. Wright, 27. 
 
 Francis T. Brown et al, 476, 491, 492. 
 Franklin v. Hodgkinson etal, 408. 
 Frankum v. Earl of Falmouth et al, 
 
 810, 314, 724. 
 Frasar v. Hickman, 316, 320. 
 
 v. Moses, 426. 
 
 V. Newton, 717- 
 
 V. Robins, 470, 473. 
 
 Frazer v. Edwards, 109. 
 Free v. Hawkins, 622. 
 Freeman t. Appleyard, 361. 
 
 V. Crafts, 149, 722. 
 
 V. Francks, 600. 
 
 V. Rosber, 144, 194, 334, 702, 
 
 et al V. Springham, 282. 
 
 V. Stcggall, 2'78, 640. 
 
 V. Franch, 194. 
 
 Fromlin v. Hamilton. 102, 160, 162. 
 French v. Archer, 710. 
 
 V. Burton, 324. 
 
 V. French, 293, 717. 
 
 V. Lewis et al, 392. 
 
 et al V. Weir, 244. 
 
 Frend v. Dennett, 713 
 Frescobaldi v. Kinaston, 56. 
 Freshney et al v. Wells et al, 129. 
 Frewen v. The Incorporated Soc, 276. 
 Frewin v. Lethbridge, 193, 549. 
 Friar v. Gray et al, 94. 
 Fricker V. Tiiomlinson, 713. 
 Friden t. Bray, 324. 
 Friedleinder v. London Ass Co., 302. 
 Friesman v. Donnelly' et al, 161. 
 Frith et al v. Guppy et al, 396. 
 et al V Lord Donegal, 18. 
 
TABLE OF CASES CITED. 
 
 » . 
 
 XXXIX 
 
 Frodsham t. Myers, 631. 
 
 V. Rust, 330. 
 
 Fromant v. Ashley et al, 17. 
 Frost ex parte, 617. 
 
 V. Hayward, 678, 680. 
 
 Fronde v. Hobbs, 282. 
 
 Fry V. Man, 2^4. 
 
 V. Monckton, 143. 
 
 V. Rojjers, 69. 
 
 V. Wills, 633. 
 
 Fryer v. Andrews, 147. 
 
 et al V. Smith, IB. 
 
 V. Sturt. 693, 702. 
 
 Fuller V. Fenwick, 226. 
 
 V. Hall, 154. 
 
 Fulton V. The Grand Trunk R. Co., 608. 
 Fullwell V. Hall, 119, 122. 
 Furly V. Newnham, 256. 
 Furnival v. Saunders, In re, 699. 
 Furness v. Meek, 713. 
 Fynu V. Kemp, 677. 
 
 Gabardi v. Harmer, 1 38, 147. 
 
 Gabell v. Shaw, 90. 
 
 Gable v. Moss, 216. 
 
 Gabriel et al v. Dresser, 129. 
 
 Gaflfney v. Killen, 241. 
 
 Gains v. Belson, 285. 
 
 Gale et al v. Ilayworth, 601. 
 
 V. Winkes, 19. 
 
 Gallaher v. Cavendish, 107. 
 Gallena v. Cotton, 249 
 Gallogley v. Ormsby, 6. 
 Galloway v. Jackson et al, 339. 
 Gallowey et al v. Key worth et al, 702. 
 Gallusia v. Butler, 411. 
 Galsworthy v. Norman, 260, 276. 
 Gait V. Spencer, 631. 
 
 et al V. The Erie and Niagara 
 
 Railway Co., 507. 
 Galtoji|hy v. Ormsby, 351, 
 Gambert v. Magne,'334, 647. 
 Gamble et al v. Bussell, 361. 
 
 et al v. Jarvis, 283, 503, 604. 
 
 et al V. Rees, 283. 
 
 Gammack v. Gregory, 423. 
 Gandell v. Motte, 330. 
 Ganthony v. Witten, 200, 319. 
 Gardener v. Baillie, 533. 
 
 V. Burwell, 70. 
 
 Gardiner v. Gardiner; , .4, 346. 
 Gardner v. Alexander, 713. 
 
 V. Gardner, 359. 
 
 V. Stoddard, 190, 434, 436. 
 
 Garey V. Pyke. 715- 
 
 Garnwell v. Barker, 426. 
 Garrard v. CoM.rell, 85. 
 Garrells v. Alexander, 301. 
 
 Garrett et al v. Cotton, 142. 
 
 — V. Hooper, 75. 
 
 Garten v. Robinson, 132. 
 
 Garton v. The Great Western Railway 
 
 Co., 98, 99 
 Garvas v. Burtchlus, 347. 
 Garwood v. Bradburn, 632. 
 Gason v. O'Ryan, 104. 
 Gass V, Cocleugh, 75 
 Gaters v. Madeley, 87, 
 Gates et al v. Crooks, 375. 
 Gatliflfe v. Dunn, 239. 
 Gavin v. Allan, 830. 
 Gawler v. Jolley, 378. 
 Gay V. Hall, 638. 
 Gayler v. Farrant et al, 309. 
 Geach et al v. Ingall, 292. 
 Gearrad v. Tracey, 300. 
 Geary v. Buxton, 267. 
 
 V. Norton, 472, 473. 
 
 V. Warren, 108. 
 
 Geddes v. Rogers, 438. 
 Gee V. Smart, 173, 174. 
 Goll v. Lord Curzon, 633. 
 George v. Elston et al, 419, 652. 
 
 V. Thompson, 281. 
 
 Geraghty v. Malone et al, 558. 
 
 V. Sharkly, 392. 
 
 Gerish v. Chartier, 295. 
 Geroux v. Yager, 698. 
 Gerrard v. Guebeli, 319. 
 Gerry v. Hopkins, 256. 
 
 Gether v. Capper, 95, 138, 139, 140. 
 Gibb V. King, 257- 
 Gibbins v. Buckland, 531. 
 Gibbon v. Parker, 211, 219, 225. 
 Gibbons v. Mottram, 626. 
 
 v. Pepper, 724. 
 
 et al V. Phillips, 323. 
 
 T.Powell, 281. 
 
 V. Spalding, 31. 
 
 Gibbs V. Goles, 324. 
 
 V. Kimble, 12. 
 
 V. Knightly, 212. 
 
 V.Pike, 434, 633. 
 
 v. Tunaley, 648. 
 
 Giblin v. McMuUen, 336. 
 Gibson V. Harris, 714. 
 
 V. Ingo, 405. 
 
 et al V. Muskett, 703. 
 
 V. Toronto Roads Co , 293. 
 
 V. Varley et al, 49, 78. 
 
 V. Washington, 327. 
 
 Graham v Oldis, ?91. 
 Gigncr v. Bayley et ux , 276. 
 Gilbert v. Gooderhara, 295. 
 
 V. Hales, 97, 708, 709. 
 
 V. Jarvis, 393. 
 
xl 
 
 TABLE OF OASES OITED. 
 
 !i .'i:i;r 
 ■ii' 
 
 
 Gilbert v. Kirkland, 827. 
 Gildersleeve v. Hftmilton, 846. 
 Giles et al v. Groves, 128. 
 
 V. Hutt et al, 187, 179. 
 
 et al V Nathan et al, 179. 
 
 Gilkinson, In re, &16. 
 
 Gill V. Hodgson, 681, 704. 
 
 V. Rusli worth, 347. 
 
 Gillbank's Bail, 667. 
 Gillens v. Symes, 474 
 Gillespie et al v. Cameron, 438. 
 ■ et al V. Grant, 655. 
 
 et al V. Nickerson, 62. 
 
 Gillett V. Green, 427, 429, 484. 
 Gillingham v. Waskett, &8. 
 Gilmore t. Crooks et al, 416. 
 
 V. Melton, 327. 
 
 Gilmour v. Mathews, 483. 
 
 V. McMillen, 30, 
 
 — . V. Simps6n, 393. 
 
 et al V. Wilson et al, 52. 
 
 Gilson V. Parr, 64. 
 
 Ginger v, Pycroft, 282, 644. 
 
 Girad v. Austen, 812. 
 
 Gitten v. Symes, 473. 
 
 Gladstone et al v. Boucher et al, 91. 
 
 Glad well v. Steggall, 310. 
 
 Gladwin v. Chilcote, 2'Jl. 
 
 Glasher ex parte, 244. 
 
 Glass V. Colcleugh, 40. 
 
 V. Current et al, 425. 
 
 «fe Springer, In re, 61. 
 
 Glasse v. Glasse, In re, 100, 620. 
 Gleason y. Gleason et al, 346, 362, 592. 
 Gledstane v. Hewitt, 91. 
 
 Glen V. Grand Trunk R. Co., 227. 
 
 V. Lewis, 111. 
 
 V. Box, 674. 
 
 Glennie v. Glennie et ai, 294. 
 
 V. Ross, 674. 
 
 Glenville v. Hutchins, 424. 
 
 Glover v. Dixon et al, 131, 183, 152. 
 
 V. Persigny, 43, 46. 
 
 Glynn v. Dunlop, 853. 
 Goatley v. Emmett, 632. 
 
 V. Heni ig, 16, 721. 
 
 Goblentz Bail, i ',& 
 Godfrey v, Broderick, 225. 
 Godson V. Good, 79. 
 
 V. Freeman, 422. 
 
 Goffv. Harris, 122. 
 
 Goges V. HuDtingtower, 17, 18, 19, 62. 
 Goldburgh v. Lesson, 189. 
 Goldie et al v. Cameron, 424. 
 
 v. Shuttleworth, 278. 
 
 Golding q. t. v. Barlow, 682. 
 
 V. Scarborough, 677. 
 
 Goldstone v. Tovey, 280. 
 
 Goldthorpe v. Hardman, 461, 469«. 
 
 Gomm V. Parrott, 259, 261. 
 
 Gompertz v. Denton, 424. 
 
 v, Pooley, 175. 
 
 Good V. Wilkes, 886. 
 
 Goodall V. Ray, 693. 
 
 Goodburne v. Bowman, 143, 420. 
 
 Goodchild v. Leadham et al, 9, 49. 
 
 Goodee v. Goldsmith, 124, 125. 
 
 Gooderham v. Chilver, 436, 698. 
 
 Goodheal v. Lowe, 472. 
 
 Goodliffe v. Fuller, 276 
 
 V. Xeaves, 61, 65. 
 
 Goodman v. Ilolroyd et al, 267. 
 
 ■ — v. Marrell, 140. 
 
 V. Pocock, 199. 
 
 Goodred v. Seal, 2(i9. 
 
 Goodrickfc v. Turley et al, 679. 
 
 Goodright d. Hare v. Caxtor et al, 558. 
 
 V. Moore, 575- 
 
 d. Stevenson v. Noright,660 
 
 d. Waddington v. Thrust- 
 out, 514, 
 
 Goodtitle v. Badtitle, 409, 413,508,619. 
 
 V. Clayton et al, 302. 
 
 d. Fisher v. Bishop, 576, 677. 
 
 d Leon v. Lonsdown, 577- 
 
 d. the Duke of Norfolk v. No- 
 title, 563. 
 
 d. Taysum v. Pope, 574, 677. 
 
 d. Wanklen v. Badtitle, 670. 
 
 Goodwin v. Ottawa and Prescott llail- 
 •way Co., 361, 362 
 
 v Sugar, 378. 
 
 Goram v Sweeting, 1 30. 
 Gordon v. Bouter, 363, 396. 
 
 V. Cleghorn, 283. 
 
 V, Fuller, 47 
 
 V. Hassard, 156. 
 
 V Ray, 173. 
 
 et al. V. Robinson, 117, 118. 
 
 V Smith, 827. 
 
 Gordon's Case, 257. 
 
 Gore Bank v. Gunn et al, 368. 
 
 District Mutual Fire Insnr. Co. v 
 
 Webster, 74. 
 Goreley v. Goreley, 183. 
 Gorrie v. Beard et al, 342, 
 Gorringe v, Terrewest, 19. 
 Gorsuch v. Cree et nl, 175- 
 Gosbell V. Archer, 143. 
 Goslin v. Tune, 342. 
 Goswell V. Hunt, 666. 
 Gottwalls V Mulholland, 477 
 Gougenheim v Lane et al, 143. 
 Gouge's Bail, 665. 
 Gough V. Bryan, 723. 
 Gould V. Barnes, bO. 
 
 
 
TABLE OF CASES CITED. 
 
 xli 
 
 Gould V. Oliver, 125. 
 Gouldiech v. McDongall, 318. 
 Goulding v. Gonlding, 246. 
 Gover V. Elkins, 121. 
 Govett V. Radnidge et nl, 71, 125. 
 'loviller v, Fauntleroy, 19. 
 Grace v. Meighan, 633. 
 
 V. Whitehead, 518. 
 
 V. Wilmer, 105, 
 
 Grady v. Kearney, Iff. 
 
 Grafton et al v. The Eastern Counties 
 
 Railway Co. 716. 
 Graham v. Brennan, 283. 
 
 V. Darcey, 224. 
 
 V Furber, 146. 
 
 et al V. Glover et al, 222, 209, 
 
 255. 
 
 V. Pent, 729. 
 
 — V. Pitman, 719. 
 
 — et al. V. Vandrinelli, 31, 
 
 32. 
 
 Grambrell v. Earl Falmouth et al, 419. 
 Grand Junction Water Works Co. v. 
 
 Roy, 18. 
 River Navigation Co. v Wilkes, 
 
 283, 284. 
 Granger v. Latham, 267. 
 Grant v. Corpor. City of Hamilton, 376. 
 
 et al V. Fanning, 667. 
 
 V. Flower, 677. 
 
 V. Hawcling, 396. 
 
 V. Mcintosh, executors of, 343. 
 
 Grantham v. Powell, 649. 
 Graves v. Browning, 679. 
 
 V. Legg et nl, 95. 
 
 V. Walter et ux., 350. 
 
 G?ay, In re, 241, 681. 
 
 V. Dill, 106. 
 
 V. Gwennnp, 222. 
 
 V. Leaf, 693. 
 
 V. Pennell, 98. 
 
 V Pindar, 1 14. 
 
 V. Willcoks, 844. 
 
 V. Wilson, 211. 
 
 Grazt'brook et al v. Davis, 246. 
 Greatrex v. Greatrex, 472. 
 Greaves v. Humfries et al, 68, 71, 77. 
 Great Western R. Co. v. Baby et al, 
 
 218, 221. 
 
 V. Braid, 835. 
 
 V. Chad wick,8 1 5 
 
 V. Dodds, 222. 
 
 V. Dougall.222. 
 
 • V. Hunt, 222. 
 
 V. Miller, 247. 
 
 T. Rclph, 243. 
 
 Gree v. Rollo et al, 646 
 Green v. Brnddyll, 43. 63 
 V. Bridges, 666, 
 
 Green et nx. v. Hurd, 167. 
 
 et al V. Kestelby, 49. 
 
 V. March, 127. 
 
 V. McClintock, 633. 
 
 V. Smithies, 721. 
 
 et al V. Wood, 390 
 
 Greenaway v. Holmes, 325. 
 
 Greene v. iJracken, 238. 
 
 Greenell et al v. Edgecome et al, 723. 
 
 Greenham v. Gray, 534. 
 
 Greenhill v. Faitchel, 331. 
 
 v. Shepherd, 78. 
 
 Greenhow et al v. Parker, 106. 
 Greenough v. Eccles et al, 303, 304. 
 V. McClelland, 173. 
 
 -- v. Parker, 33.1. 
 
 Greenshields v. Harris, 408. 
 Greensill v. Hopley, 663. 
 Greenwood v. Johnson, 423. 
 
 V. Selden et al, 19. 
 
 Gregory v. Cotterell et nl, 317. 
 V. Duke of Brunswick 
 
 et al. 
 
 185, 419. 
 
 q. t. V. Elvidge, 632, 633. 
 
 V. Gurdon, 666. 
 
 V. Slowman, 534, 
 
 GrenfiU et al v. Edgcome et al, 693. 
 
 Gresty v. Gibson, 115. 
 
 Grew V. Hill, 728. 
 
 Grey q. t. v. Dellrick, 672. 
 
 et al V. Frier, 95. 
 
 Gribble v. Buchanan, 211, 
 GrifBn et al v. Bradley, 51. 
 
 V. Smythe, 276. 
 
 Griffith V. Jones et al, 419. 
 
 V. Roberts, 140. 
 
 V. Selby, 140, 148, 709. 
 
 V. Williams, 194. 
 
 Griffiths V. Kymceston et al, 419. 
 
 V. Lewis, 726. 
 
 V. Liversedge, 651. 
 
 V. Pointon, 424. 
 
 V. Thomas, 428, 
 
 V. Williams, 121. 
 
 Griffits V. Ivery, 301. 
 Griggs V. Bellington, 234. 
 V. Firlcy, 174. 
 
 Grimshawe v. The Grand Trunk Rail- 
 way Co., 507 
 V. White et al, 512, 623, 
 
 579, 697, 
 Grimstone v. Burgers et al d. Lord 
 
 Gower et al, 508. 
 Grimsley v. Parker, 123, ^ 
 Grindall v. Godman, 699. 
 Grindley v. Booth, 476. 
 Gripper et al v. Brlstow, 637. 
 Grisdale v. Boulton, 221. 
 
zlU 
 
 TABLE OP CASES CITED. 
 
 I ;|, 
 
 Grissell et al v. James, 97, 708, 709. 
 Griswold V, Buffalo, Brantford and 
 
 Goderich Railway Co., b92, 897. 
 Grizewood v. Blane, 718. 
 Grocers' Co. v. Coll, 632. 
 Grogan v. Adair et al, 76. 
 Grojan v. Lee, 9. 
 Grounsell v. Lamb, 7 1 3. 
 Grout V. Glasier, 834. 
 Grove v. Withers, 151. 
 Grover v. Yeovill, 267. 
 Grugeon v. Gerrard, 405. 
 Guarantee Society and Levy, In re, 
 
 222, 249. 
 Guardians of the Youghal Union v. 
 
 Atkinson. 631, 
 Guest V. Elwes. 73, 74, 309, 314. 
 Gulliver v. Gulliver, 180, 181. 
 Gully et al v. Bishop of Exeter, 129, 
 
 130, 138, 140. 
 Gnrford v. Bayley, 311. 
 Gurney v. Kay, 631 
 Guteris ex parte, 615. 
 Guyard v. Sutton, 75. 
 Gwillim V. Howes, 667. 
 Gwinnell v. Herbert, 718. 
 G Wynne v. Burnell et al, 181. 
 
 V. Davy et al, 85. 
 
 - V, Sharpe, 726. 
 
 V. Rees, 392, 393. 
 
 Gynn v. Kirby, .55. 
 
 Habgood et nx v. Paul, 631. 
 Haddock v. Williams et al, 681. 
 H.addrick v. Hislop et al, 329, 724. 
 Hadfield v. Manchester South Junction 
 and Altringham Railway Co., 470 
 Hagarty, In re, 616. 
 Hagi!,er v. Baker, 225, 226. 
 Haigh V. Frost, 638. 
 Hailes v. Marks, 317. 
 Haine v. Davey et al. 335. 
 Haines v. Taylor, 469, 470. 
 Haire v. Wilson, 725. 
 Halaham v. Worraan, In re, 391. 
 Ilalaman v, Worman, 400. 
 Halden v. Glassoock, 241. 
 Hale V. Dale, 637. 
 
 V. Matthison, 227- 
 
 Haley et al. In re, 222. 
 Halfield v. Phillips et al, 471. 
 Halford v. Hughes, 279. 
 Halhead et al v. Young, 167. 
 Halifax et al v. Lyle, 718. 
 Hall, lore, 199. 
 
 V. Bainbridge et al, 275. 
 
 V. Boulton, 408. 
 
 V. Bowes, 629. 
 
 Hull et al V. East India Co., 122. 
 
 V. Fearuley, 724. 
 
 V. Ferguson et al, 219. 
 
 V. Hall, 472. 
 
 & Hinds, In re, 225. 
 
 V, McKernan, 107. 
 
 — — V. Pierce, 426. 
 
 V. Popplewell, «24, 625, 620. 
 
 V Redington, 48. 
 
 V. Scottson, 16, 20, 61, 64. 
 
 V. Shannon, 835, 
 
 V. West, 51. 
 
 V. Wethcrell, 673. 
 
 V. Yuill, 508, 524. 
 
 Hallet et al v. East India Co., 119. 
 
 V. Ilallett, 240. 
 
 Halsal V. Wedgwood, 614. 
 Halton V. White, 20. 
 Ham V. Greg, 285, 327. 
 
 et ux. V. Lasher et al, 108, 110, 
 
 700, 765, 757, 
 
 V. MePherson et al, 106. 
 
 Hamber v. Roberts, 185. 
 Hambidge v. Crawley, 346. 
 
 V. de la Croude et al, 685. 
 
 Hamer v. Laing, 665, 566, 
 
 V. Sowerby, 261, 276. 
 
 Hamlet v. Breedon et al, 99. 
 Hamilton v Alford, 245. 
 
 v. Brown et al, 690. 
 
 V. Clarke, 434. 
 
 V, Dalziel, 675. 
 
 V. Davies, 165. 
 
 V. Davis et al, 131, 293, 310 
 
 et al V. Holcomb, 379. 
 
 V. Wilson, 221. 
 
 Hammer v. White, 426. 
 Hammond v. Teague, 140. 
 Hamner et ux. v. Mangles, 632 
 Hanbury et al v. Ella et al, 309. 
 Hancock v. Noyes, 138, 157. 
 
 V. Sin'ith, 634. 
 
 Handcock v. Bethune, 434. 
 Ilandells v. Powsey, 330. 
 Ilandley v. Levey, 423. 
 
 T. Roberts, 639. 
 
 Hands v. Clements. 682. 
 Hauing et ux. v. Power, 726. 
 Hankey v. The Grand Trunk Railway 
 
 Co., 608. 
 Hanks v. Cribbin et al, 634. 
 Hannah v. Wyman, 10. 
 Ilannay v. Smith et al, 67, 08. 
 Ilannuic v. Goldner, 713. 
 Hansby v. Evans, 327. 
 Hanson v. Blakey et al, 180. 
 
 V. Shackelton, 10. 
 
 Harcourt v. Foy, 464. 
 
TABLE OP CASES CITED. 
 
 xliii 
 
 Ilarcourt v. Ramsbottom, 221. 
 
 — et ol V. Wyinan, 87, 
 
 Harden v. Clifton, 1G3. 
 Harding v Barratt, 394. 
 
 V. Forsliaw, 2'2'2. 
 
 Hard well v. Jarnian, 302. 
 Hardy v. Bern. 200. 
 
 V. Fetherstonhaugli, 337. 
 
 Hargrave v. Ilargrave et al, 254. 
 Hargreaves et al v. Armitage, 380. 
 Harlow v. Read, 238. 
 
 V. Winstaidey, 244. 
 
 Harnian v. Sedgwick, 472. 
 Harmon v. Jones, 473. 
 Harnett et iix. v. Maitland, 161. 
 
 V. Torrens, 108. 
 
 Harney v. Hamilton, 120, 
 Harold v. Smith, 124, 624. 
 
 et ux. V. Stewart et al, 436, 
 
 623. 530. 
 i Harper et al v. Abrahams, 236. 
 V. Branton, 70. 
 V. Lowndes, 508, 524- 
 V. Powell, 385. 
 [Harrington v. Bytham, Assignees of, 
 607, 517, 520, 524. 
 
 V. Fry, 301. 
 
 [Harris v. Andrews, 56. 
 V. Bushell, 123. 
 
 • V. Butterley et al, 69. 
 V. Hawkins, 326. 
 
 ■ V. Holler, 54. 
 . V. Montgomery, 17. 
 
 • V. Phillips, 91. 
 
 ■ V. Reynolds, 232, 333. 
 V. The Cockermouth and Work- 
 ington Railway Co., 251. 
 
 iarrisou v. Blackburn, 72',). 
 
 V. Dixon, 729, 730, 
 
 V. Grundy, 244. 
 
 et al V. Heathorn et al, 194. 
 
 V. Luke, 715. 
 
 V. Matthews, 85. 
 
 V Paynter, 307. 
 
 V. Smith, 220, 244. 
 
 et al V. Great Western Rail- 
 way Co., 339. 
 
 et al V. The Great Northern 
 
 Railway Co., 617. 
 
 V. Wattct ux., 124, 125. 
 V, Williams, 43. 
 V. Wright, 51. 
 
 Harrison's Bail, 665. 
 
 Harrop v. Fisher, 718. 
 [Harsant v. Busk, 121. 
 [Hart V. Bell, 140. 
 
 — et al V. Boylo, 100, 153. 
 I V. Crowley, 723, 721. 
 
 Hart V. Cutbush, 143, 711. 
 
 V. Denny, 119. 
 
 V. Longfield, 97. 
 
 V. Meyers, 92, 161, 671. 
 
 V. Middletoil, 721. 
 
 Hartley v. Radenhurst, 1 0. 
 
 V. Sherawell, 389, 391. 
 
 Hartshorn v. Earley, 512, 518. 
 Harvey v. Bridges et al, 91, 163. 
 
 V. Divers, 678. 
 
 V.Hamilton, 138, 141, 147, 717. 
 
 V.Jacob, 631. 
 
 V. Johnson, 309, 811. 
 
 V. Lankester, 152. 
 
 . et al V. Morgan et nl, 281, 666. 
 
 V. O'Meara, 257, 287. 
 
 V. Shelton, 244, 
 
 V.Smith, 631. 
 
 V, Towers, 719. 
 
 V. Watson. 158. 
 
 Harwood et ux. v. Hardwick et ux., 88. 
 Hasketh v. Flemming, 54. 
 
 V. Ward, 355. 
 
 Haskins v. Cannon et al, 521, 525. 
 Hasleton v. Brundige, 342. 
 Haslope v. Thorne. 679. 
 Hastings v. Champion et al, 79, 
 
 et al V, Whitlev, 163. 
 
 Hatfield v. Hatherfield, (592. 
 Hatfield's Bail, 665, 
 Ilattersley v, Hatton, 232. 
 Hatton v. Fish, 336. 
 
 v. Macready, 199, 498. 
 
 Ilawdone, In re, 617. 
 Hawk v. Treund, 278. 
 Hawke v. Duggan, 2-18. 
 Hawkins v. Akrill, 251. 
 
 V, Alder, 335, 337. 
 
 et nl V. Cnrr, 263, 20.i. 
 
 V. Patcrson et al, 313, 631. 
 
 V, Rigby e al, 699. 
 
 Hawkj-ard et al v. Stocks et al, 222. 
 Hawley v. Shirly, 327. 
 Hawn et al v. Madden et al, 84. 
 Hawthorne v. Denhani, 274. 
 Hay et al v. Fisher, 717. 
 Hayden et ux. v. Silverman, 353. 
 Hayes v. Caulfield, 146. 
 Hayne et al v. Robertson, 251, 317. 
 Haj-nes v. Powell, 681, 
 Hayselden v. Staff, 713, 716. 
 Hay ward v. Bennet, 141. 
 Hazlewood v. Back, 144. 
 
 v, DeBergue et al, 391, 
 
 Head v. Baldrey, 718, 
 
 lleald's Bail, 064. 
 
 Heap et al v. Livingston ct al, 79. 
 
 Heath v. Boxall, 327. 
 
xliv 
 
 TABLE OF OASES CITED. 
 
 r:^. 
 
 Ueath et al v. Durnnt, 94, 140, 713, 720. 
 
 V. Gurley, 661, 
 
 V. Milward, 729. 
 
 V. Nesbitt, 82. 
 
 V. Rose, 112. 
 
 V. White, 18, 19. 
 
 Heathcote v. Wing, 1C^4. 
 
 V. Wynn, 650. 
 
 Heather et al v. Wallace, 489. 
 Heatherington v. Robinson, 224, 2S8. 
 Heaton v. Whittaker, 673. 
 
 Heckle V. Reynolds, 88. 
 Hedges v. Jordan, 676. 
 Hehman v. Lester, \'07 
 nelliwell V. Hobs i et j 
 
 Helm V. Crossin, CSC. 
 Hemming v. Duke, h'>. 
 
 V. Hall et al, 379, SSD. 
 
 V. Parrj', ] V, 809. 
 
 V. Trenery ei al, \'^^-, 720, 
 
 •Hemmingway v. Hemmiiigwu>, 326. 
 Hemp V. Warren, 26. 
 Hemstead v. The Phoenix Gas-Light 
 
 and Coke Co., 89. 
 Hemsworth v. Brian, 216. 
 Henderson v. Comer, 700. 
 
 V. Gesner et al, 718. 
 
 V. Harper, 310. 
 
 V. Hnghcs, 633. 
 
 V. Morrison, 507. 
 
 V. Ferry et al, 353. 
 
 V. Williamson, 239. 
 
 Uenfree v. Bromley, 215. 
 Henkin v, Guerss, 201, 202, 205, 327. 
 Henman v. Lester, 296, 335. 
 Hienning v. Swinerton, 219, 244. 
 Henry v. Goldney, 80. 
 
 V. Kirwan, 242. 
 
 Henschen v. Garvis, 631. 
 Henshall v. Roberts, 84. 
 Herbert ex parte, 615. 
 
 V. Darbey, 52. 
 
 V. Dowswell, 570. 
 
 Herchfield v. Clark, 259. 
 Hernamann v. Barber, 635, 712. 
 Hcrnod v. Wilkin.et al, 96, 708. 
 Heron v. Elliott et al, 520. 
 
 V. Heron, 158. 
 
 Herr v. Douglass, 49, 68, 677. 
 Hesketh v. Fleming, 3, 20, 42. 
 Hesse v. Buffalo, Brantford and Gode- 
 
 rich Railway Co., 896. 
 Hester v. Hall, 685. 
 Hetherington v. Whelan et al, 30. 
 Heward v. Wolfenden, 864. 
 Hewes v. Mott, 180. 
 Hewitt V. Hewitt, 109. 
 V. Loosemore, 182. 
 
 Hewitt V. Macquire, 132. 
 
 V. Webb, 269. 
 
 Hey V. Moorhouse, 295. 
 
 Heyden, in re, 357. 
 
 Heyne v. , 126. 
 
 Hibbert v. Barton, 638. 
 
 Hick et al. In re, 221. 
 
 Hicks V. Marrecco, 659. 
 
 Hifferraan v. Langelle, 112. 
 
 Higden v. Whitchurch, 179. 
 
 Higgins V. Corporation of the City of 
 Toronto, 312. 
 
 V. Ede et al, 160. 
 
 V. Nichols, 309, 316, 336. 
 
 Higgs V. Dixon, 299. 
 
 V. Mortimer, 28. 
 
 Higham v. Jessop, In re, 447. 
 
 V. Rabbett, 128. 
 
 Higinbotham v. The Eastern and Con- 
 tinental Steam Packet Co. 644. 
 
 HiJ^^ on V. Phelan, 423, 424, 425. 
 
 nil uy V. Gay, 657. 
 
 Hill V. Allen, 716. 
 
 rv. Cowdory, 167. 
 
 V. Glen, 268. 
 
 V. Hilletal, 222. 
 
 V. Howell, 115. 
 
 V. Mills, 110, 114,677. 
 
 V. Montague, 168. 
 
 V. Moule, 19. 
 
 V. Philp, 260, 261, 272, 277. 
 
 et al V. Salt, 310. 
 
 V. The Great Western Railway 
 
 Co. 275, 276. 
 
 V. The Manchester and Salford 
 
 Water Works Co. 720. 
 
 v. White et al, 79. 
 
 Hills V. Croll, 184. 
 
 et al V. Ilaymen, 138, 147. 
 
 V. Hunt, 319, 822. 
 
 et al V. Mesnard et al, 123. 
 
 V. The London Gas Light Co. 278. 
 
 Hilton V. Green, 103. 
 
 et al V. Macdonell. 70, 380, 383, 
 
 675. 
 Hillyard v. Smith, 275. 
 Ilinao et al v. Gray, 127. 
 Hinds V. Deniaon, 434. 
 
 V. Shannons, 92. 
 
 llingham et al v. Robins, 122. 
 Hingston v. Whelan, 288. 
 Hinton t. Acraman, 136. 
 
 V. Cray, 289. 
 
 V. Stevens, 52, 677. 
 
 Hirsch et al v. Coates, 896. 
 
 et al V. Im Thurn et al, 234. 
 
 Hirst V. Hannah, 637. 
 
 Hiscock et al v. Kemp, 407, 408. 
 
 ^1 
 
 Hoc 
 
 ■h 
 
 Hod 
 
 H 
 
 Hodj 
 
 ^\ 
 
 Hod- 
 
 I 
 
 « 
 
TABLE OP CASES CITED. 
 
 zlv 
 
 Hiscott V. Cox, 723. 
 Iliskt'tt V. Biddle, 6S3. 
 Hitchcock V. Walter, 625, 
 Hitcliins v. Hollingsworth, 100. 
 Hoaro v. Dickson, 578. 
 
 V. Dixon, 632. 
 
 V. Lee, 97, 705. 
 
 V. Silverlock, 726, 726. 
 
 Hobs V. Tadcastle, 177. 
 Hobbs V. Ferrars, 225. 
 
 V. Young, 11. 
 
 Hobson V. Shand, 352. 
 
 V. Wadsworth, 60. 
 
 V. Wellington District Mutual 
 
 Fire Insurance Co. 620. 
 Hooker V. Townsend, 20. 
 Hodding v. Stuichfiold, 13. 
 Hodgo V. Churchward, 106. 
 Hodges V. Ancrum et al, 294, 
 
 • et al V. Welsh, 474. 
 
 Hodgins v. Hancock, 627. 
 Hodgkinson v. Fernie et al, 211, 219, 
 
 225 
 
 '. — V. Wyatt, 420. 
 
 Hodgson V. Caley, 164. 
 V. Dowell, 62. 
 
 V. Graham, 678. 
 
 et al V. Mee, 98, 668. 
 
 V. Walker, 681. 
 
 Hodsden v. Harridge, 213, 223, 224. 
 HodsoU V. Baxter, 15. 
 
 V. Wise, 222, 260. 
 
 Hodson V. Gamble, 54. 
 
 V. McQueen, 633. 
 
 V. Pennell, 92. 
 
 V. Stevens, 327. 
 
 Hoffman v. Poslill, 266. 
 Hogarth v. Penny et al, 292. 
 Hogge V. Burgess, 211, 219, 225, 228. 
 Holden et al v. Ballantyne et al, 820. 
 
 ■ V. Liverpool New Gas and Coke 
 Co. 723. 
 
 V. Raith, 423. 
 
 Holderness v. Barkworth et al, 14. 
 Holdipp V. Otway, 217. 
 
 Hole V. Barlow, 726. 
 Holford V. Dunnett, 97, 709. 
 Holgate et al v. Killock, 212. 
 
 ^^^ V. Slight, 686. 
 
 Holland, In re, 616, 616, 617. 
 
 V. Fox, 474. 
 
 T. Henderson, 330. 
 
 V. Judd, 228. 
 
 V. PhUlipps, 411. 
 
 et al V. Tealdi, 92, 165. 
 
 Holliday v, Bohn, 138, 147. 
 
 — V. Lawes, 27, 62. 
 Hollis T. Freer et al, 196. 
 
 Holmes, Re, 617. 
 
 V. Bnggo, 110. 
 
 V. Brown, 645. 
 
 V. Catesby, 163. 
 
 y. Hennegan, 88, 609. 
 
 V. Iliggins, 219. 
 
 V. Hodgson, 90, 161. 
 
 V. London dtS.W.R'y Co., 680. 
 
 V. Newland, 408, 412. 
 
 V. Pembcrton, 179, 683. 
 
 V. Service, 20. 
 
 et al V. Tutton, 897. 
 
 Ilompay v. Kenning, 27, 62. 
 lioness et al v. Stnbbs, 163. 
 Honeyman v. Lewis, 384. 
 Hood v. Cronkite, 106, 424. 
 Hooper v. Gamble etal, 812. 
 Hookpayton v. Bussell, 636, 663. 
 Hooper v. Gunn, 260. 
 
 V, Harcourt, 54. 
 
 V. The Bristol Port, Railway & 
 
 Pier Co., 157. 
 
 Holroyd et al v. Reed et al, 117. 
 Holt v. Forshall, 142. 
 
 et al V. Kershaw, 688. 
 
 Hope V. Beadon, 279, 280. 
 
 V. Graves, 368. 
 
 Hopkin v. Daggett, 285. 
 Hopkins v. Francis, 308, 310. 
 
 et ux. v. Lagan, 87, 103. 
 
 V. Salembier, 32. 
 
 Hopkinson v. Lord Burghley, 261. 
 Hopper A Wrighton, In re, 236, 238. 
 Hopwood V. Adams, 66. 
 V. Thorn, 726. 
 
 Horlock v. Lediard, 161. 
 Horlor v. Carpenter, 836, 
 Horn V. Whitcombe, 668. 
 Hornby v. Hornby, 109. 
 Home V. Tooke, 97. 
 Horner, Ex parte, 615. 
 
 V. Denham, 124. 
 
 V. Keppel, 157. 
 
 V. Spencer et al, 330. 
 
 Horsfall v. Matthewnaan, 82. 
 Horsley v. Cox, 393. 
 Horsman v. Horsman, 265, 275. 
 Horton v. Bott et al, 266, 267. 
 
 V. Sayer, 233. 
 
 Horwood V. Wood, 43. 
 Hough V. Bond, 92. 
 
 V. Edwards, 396. 
 
 Houghton V. G. W. Railway Co., 66. 
 
 V. Howarth, 19. 
 
 et al V. Hadson, 69, 690. 
 
 V. London ib County Assur- 
 ance Co., 259. 
 
 T. Thompson, 386, 837. 
 
^B 
 
 It/' 
 
 slvi 
 
 TABLE OF CASES CITED. 
 
 1 ■■ 7! 
 
 % 
 
 '% 
 
 llouscnnn v. Roberts, 281. 
 IIounHfic-Ul V. Drury et a), 723. 
 Hoveiidoii V. Crawthor, 378. 
 Howard v. Canty, ;556. 
 
 \. Crofts, 830. 
 
 V. Pitt et al, 408. 
 
 V. Smith, 378. 
 
 V. Williams, 281. 
 
 q. t. V. Sowerby, 672. 
 
 Howartli v. Brown, 731. 
 
 V. Samuel, 837. 
 
 Ilosv'don V. Standinh, 727. 
 Howe et ux. v. Thompson, 87. 
 Howell V. Hodbard, 87, 136, 145. 
 
 V. Thomas et al, 310. 
 
 Howcn V. Carr. 148. 
 Howes V. Barber, 702. 
 Howett V. Clements, 229. 
 Howorth V. Hubbersty, 166, 626. 
 Hubbard v. Haggart et ux., 689. 
 Hudson V. Jones, 131. 
 
 V. Marjoribanks, 837. 
 
 Huff V. McLean et al, 70. 
 Hiiggins V. Bauibridge, 667. 
 Hughes V. Budd, 281. 
 
 V. Bury, 321. 
 
 et nl V. Griffiths, 446. 704. 
 
 V. Hamilton et al, 678. 
 
 et al V. Lumley et al, 66, 207. 
 
 V. Mutual Fire Insurance Co. 
 
 of District of Newcastle, 224. 
 
 V. Phillips, 177. 
 
 V. Pool, 158. 
 
 V. Wiilden, 111. 
 
 V. Rogers, 301. 
 Alwny, 240. 
 
 It 
 
 Hughs 
 
 Hull V, 
 
 Uulme, Ex parte, 615. 
 
 Humble et al v. Bland, 56. 
 
 V. Mitchell, 861. 
 
 Humbleton v. Higginbotham, 652. 
 Hume, In re, 616. 
 
 V. Kent, 558. 
 
 V. Lord Wellesley, 638. 
 
 Humphrey v. Barnes, 495. 
 V. The London & N.W. Rail- 
 way Co., 152, 728. 
 Humphreys v. Franks, 535, 651. 
 
 et al V. Hunter, 602. 
 
 V. Knight, 179. 
 
 ■ V. Lord Waldgrave, 158. 
 
 V. O'Connell, 131. 
 
 Hunt V. Barclay, 1 1 1. 
 
 V. Blaquiere, 663. 
 
 V. Blomfield, 647. 
 
 V. Cox, 378. 
 
 V. Elmes, 261. 
 
 V. Hewitt, 261, 276, 277. 
 
 V. Hooper et al, 856. 
 
 ] Hunt V. Passmore, 653. 
 
 V. Wise, 278. 
 
 Hunter v. Baptio et al, 507. 
 
 V. Emmanuel, 316, 817. 
 
 V. Farr et al, 364, 506. 
 
 V. Gibbon, 176, 180, 181. 
 
 V. Kehoe, 296. 
 
 V. Keightlev et al, 519. 
 
 V. Liddell, 702. 
 
 V. Russell, 12, 14. 
 
 V. Sharpe, 163. 
 
 V. Wilson, 158. 
 
 Huntington v. Lutz et al, 470, 475. 
 Huntley v. Bnlwer et al, 634. 
 
 V. Smith, 727, 
 
 V. The Churchwardens of the 
 
 Parish of Baiubrooke et al, In re, 
 
 229. 
 Hunt's Bail, 665, 679. 
 Hurrel et al v. Simpson et al, 833. 
 Huson V. Hewson, 676. 
 Hutchins v. Hird, 676. 
 Hutchinson, Ex parte, 47. 
 
 et al V. Bernard, 271. 
 
 V. Blackwell, 204, 222. 
 
 et al V. Greenwood et al, 
 
 536, 680. 
 
 V. Johnston, 355. 
 
 V. Street et al, 3. 
 
 Hutchinson's Bail, 668. 
 Hutchins v. Hird, 661. 
 Hutchison v. Sideaways, 216. 
 Huthwaite v. Phaire, 158. 
 Hutson V. Hutson, 637. 
 Hutt et al V. Giles, 155. 
 Hutton V. Whitehouse, 44. 
 Hyde v. Graham, 169, 175. 
 Hyde's Case, 177. 
 
 Ikin V. Plevin et al, 9?, 287. 
 
 Ilderton v, Burt, 251, 682. 
 
 V. Sill, 549, 651. 
 
 Ilfracombo R. Co. v. Devon and Som- 
 erset R. Co. 415, 
 
 Imhof et al v. Sutton, 209. 
 
 Imray v. Magnay et al, 356. 
 
 Indeimain v. Dames, 812, 316. 
 
 Ingalls et al v. Reid, 359. 
 
 Ingate v. Austrian Lloyds Co. 45. 
 
 Ingilby v. Shafty, 265. 
 
 Inman v. Hodgson et al. 275. 
 
 Insull et ux. v. Moojen, 209, 210, 211. 
 
 Ipstone Park Iron Ore Co. v. Pattin 
 son, 175. 
 
 Ireland v. Champneys, 188, 193.^ 
 
 V. Harris, 339. 
 
 Irvine v. Mercer et al, 390.^ 
 
 Irving V. Baker, 160. 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 Irving V. Manning et al, 199. 
 Irwfii V. Hum, 844. 
 Irwin V. C'ullwell, 335. 
 
 V. Meennglmn, 323. 
 
 V. Sager, 6i)7. 
 
 Isaac V. Belcher et nl, 724. 
 
 V. Furrar, 131. 
 
 Iveniy v. Farrant, 125. 
 Ivi'118 V. Butler et ux. 196. 
 Ives V. Calvin, 629. 
 
 Ivey V. Young, 310, 420. 
 
 Jaelvson, Ex parte, 615. 
 V. Butler et al, 405. 
 
 V. Carrington, 154, 327. 
 
 V. Chard, 678. 
 
 et al V. Clarke, 222. 
 
 V. Davenport, 633. 
 
 — et al V. Hall, 2U6. 
 
 — V. Hyde, 196. 
 
 — V. Isaacs, 174. 
 
 — V. Kidd, 106. 
 
 — V. Lodge, 107. 
 
 — V. Gates, 288. 
 
 — V. Nunn et al, 76, 713. 
 
 — V. Simpson, 310. 
 
 — et ux. V. Thompson, 803, 304. 
 
 — V. Utting et al, 327, 329. 
 I Jacob V. Kirk, 3li9. 
 
 — V. Lee. 281. 
 
 — V. Magnay, 18. 
 [Jacobs V. Equitable Ins. Co. 188, 292. 
 
 V. Fisher, 717. 
 
 T. Magnay, 620. 
 
 V. Minicone, 193. 
 
 V. Neville, 639. 
 
 V. Ruttan, 693. 
 
 V. Stevenson, 631. 
 
 V. Tarleton, 295. 
 Ijaconib v. Henry, 358. 
 [jacquet v. Bower, 199, 498. 
 I Jacquot V. Boura, 12. 
 I James v. Askew, 423. 
 
 V. Aswell, 62. 
 
 V. Attwood,221, 222,246,247,250 
 
 V. Barns, 264, 266. 
 
 et al V. Bourne et al, 96,708,709. 
 
 V. Burns, 263. 
 
 et al V. Crane et al, 194. 
 
 V. Dawson, 423. 
 
 V. East India Co. 392. 
 
 V. Francis, 424. 
 
 V. Harris, 637. 
 
 V. Isaacs et al, 164, 167. 
 
 V. Lingham et al, 149, 722. 
 
 V. Mills, 281. 
 
 V. AVhitbread et al, 338. 
 
 Jameson's Bail, 667. 
 
 Janiieson v. Wilkins, 19. 
 Jarnian v. Lucas, 66. 
 Jarvis v. Durand, 130. 
 Jauradale v. Parker, 391, 400. 
 Jeffrey v. Oliver, 407. 
 Jelf v. Oriel et al, 308. 
 Jelkes V. Fry, 3. 
 Jenkins v. Betham et al, 337. 
 
 V. Charity, 330. 
 
 V. Creech, 140, 718. 
 
 V, Edwards, 140. 
 
 V. Kirby et al, 408. 
 
 V. Phillips, 73, 310, 313. 
 
 V. Trelvar, 97, 708, 709. 
 
 Jenkyns v. Bushby, 260. 
 Jennings V. Dingliam, 436. 
 V. Newman, 84. 
 
 Jenny d. Preston et al v. Cutts, 514 670. 
 
 Jessel V. Chaplin et al, 469, 471. 
 
 V. Millingen, 276. 
 
 Jessup V. Eraser, 158. 
 
 Jeyes v. Booth, 637. 
 
 Jocks V. Mayer, 285. 
 
 Joel V. Dicker, 637. 
 
 V. Peard, 423. 
 
 John V. Currie, 310. 
 
 Johns V. Saunders, 97. 
 
 Johnson v. Anglin, 241. 
 
 V. Birlej' el al, 55. 
 
 V. Budge, 193. 
 
 V. Collie, 241. 
 
 V. Diamond, 392, 399, 400. 
 
 et al V. Dodgson, 713. 
 
 V. Eaetman, 725. 
 
 V. Fry, 639. 
 
 V. Goslett, 77. 
 
 V. Hunter, 96, 1 37, 709. 
 
 V. Kennedy, 677. 
 
 V. Lamb, 407. 
 
 V, Latham, 229. 
 
 et ux. V. Lucas, 87. 
 
 V. Macdonuld, 66C. 
 
 et al V. Mills et al, 508. 
 
 V. Morley, 433. 
 
 and Municipality of Glouces- 
 ter, In re, 221. 
 
 V. Popplewell, 76, 81. 
 
 V. Rouse, .19. 
 
 V. Smallwood, 27. 
 
 V. Sparrow, 75, 649. 
 
 V. Warwick, 334, 647. 
 
 V. Wilson, 242. 
 
 Johnston v. Briscoe, 24. 
 
 et al V. McKenna, 625, 529, 
 
 636, 639. 
 
 Johnstone v. Fenix, 393. 
 
 V. Knowles, 140, 145, 188,709. 
 
 JoU et al V. Curzon, 70, 80. 
 
xlviii 
 
 TABLE OF CASES CITED. 
 
 
 Joliffo V. Mundy, 646, 635. 
 Joiins et al v. Tepper et al, 668. 
 Jonassolin v. Uansorae et al, 176. 
 Jones, Ex parte Kelloy, In re, 396. 
 
 V. Atherton, 356. 
 
 V. Barnes, 268. 
 
 V. Beaumont, 209, 291. 
 
 V. Chapman et al, 729. 
 
 q. t. V. Chase, 672. 
 
 V. Corry et al, 225. 
 
 V. Curry et al, 281. 
 
 — — V. DeBarque et al, 391. 
 
 V. Dunn, 625. 
 
 V. Evans, 2(>. 
 
 V. Fiiilay, 539. 
 
 V. Gibbons, 1C8. 
 
 V. Gibson et al, 329. 
 
 V. Grier, 691. 
 
 V. Ilnrdgreaves, 258, 260, 
 
 V. Hill, 731. 
 
 V. Hows, 327. 
 
 V. Hutchinson, 72. 
 
 V. Jehu, 423. 
 
 V. Jenbier, 389, 392, 898. 
 
 V. Jones et al, 133, 163, 634, 639. 
 
 V. Lake, 426. 
 
 V. King, 620. 
 
 V. Maekie, 119. 
 
 et al V. Mcr)owen, 338. 
 
 V. Morris, 175. 
 
 V. Nanney, 713, 716, 
 
 — — V. Owen, 561. 
 
 V. Palmer, 276. 
 
 V. Piatt, 260. 
 
 V. Pratt, 263. 
 
 V. Price, 62. 
 
 V. Provincial Insurance Co., 335. 
 
 V. Reade, 716. 
 
 V. Ileid, 224, 699. 
 
 V. Robinson, 676, 
 
 et al V. Russell, 222, 248. 
 
 V. Scofield, 385. 
 
 V. Seaton, 621. 
 
 et al V. Senior, 131. 
 
 V. Smith, 70, 75, 79. 
 
 V. Spence, 88. 
 
 V. Tatham, 288. 
 
 V. Thomas, 199. 
 
 V. Thompson, 503. 
 
 V. Vestris, 662. 
 
 V. WilUama et al, 430, 675, 720. 
 
 et al V. Wing, 436. 
 
 Jones's Bail, 667. 
 Jordan v. Bincks, 366. 
 
 V. Marr, 104, 106. 
 
 Jordin v. Crump, 168. 
 
 v. Martin et ux„ 331. 
 
 Jourdain v. Gunn, 663. 
 
 Jourdftin v. Johnson, 96, 119, 123. 
 
 V. Palmer, 266, 266. 
 
 Joyce V. Ellis, 331. 
 Joynes v. Collinson, 634. 
 Judkin V. Atherton, 828, 329. 
 Judge of Elgin, In re, 887, 467, 692, 
 Jupp et al V. Grayson, 219. 
 
 Kane v. Kane, 617. 
 
 Kasten v, Plaw et al, 631. 
 
 Kay v, Panchiman et al, 120. 
 
 Kaye v, Dutton, 103, 
 
 Keane v. Smallbone, 639. 
 
 Kcarns v, Durell, 719, 
 
 Keefer v, Hawley, 680. 
 
 Keegan v. Robson, 725. 
 
 Keeler v. Brouso, 426. 
 
 Koena v. O'llara, 191. 
 
 Keene d. Angel v. Angel et al, 578. 
 
 v. Deeble, 423, 
 
 Keenahan v, Preston. In re, 467. 
 
 Keesar v. Empey et al, 1 7. 
 
 Kehoe v. Brown et al, 358. 
 
 Ki'kendall et al v. McKrimmon, Re, 483. 
 
 Keller v, Slattery, 632, 
 
 Kellett V, Local Board of Health of 
 Tranmere, 241. 
 
 V. Stannard, 163. 
 
 Kellock v. Tlie Home and Colonial In- 
 surance Society, 276. 
 
 Kellogg et al v. Hyatt, 601. 
 
 Kelly v. Carroll, 100. 
 
 V. Cavendish, 105, 108. 
 
 V. Flint, 124, 
 
 V. Hooper, 472, 474. 
 
 V. Staunton, 667. 
 
 - V. The Londonderry and Ennis- 
 killen R, Co,, 107. 
 
 V, Villebois, 126, 717. 
 
 Kembesky v. AUeyne, 30. 
 Kemble v. Mills, 96, 161, 633, 713, 
 Kemp V, Watt, 718, 
 Kempland v. Macauley, 365. 
 Kendil et al v, Merritt, 210, 212, 317, 
 Kendrew v. Allen, 423. 424. 
 Kennard v. Jones, 493. 
 Kennedy, In re, 616. 
 
 et al V, Brodie,.37, 668. 
 
 V. Freeth, 335. 
 
 V. Lynch, 106. 
 
 Kennett and Avon Navigation Co. v. 
 
 G. W. Railwajr Co. 206. 
 V. Westminster Improvement 
 
 Commissioners, 894. 
 Kenningbam v, Alison, 149. 
 Kenny v, Hutchinson, 64. . 
 
 et al V. Shaughnessy, 613. 
 
 Kenrick t. Horder, 724. 
 
TABLE OF CASES CUED. 
 
 xlix 
 
 Kfiit V. Klstob et al. '225, 
 
 V. MerctT, 373, 387. 
 
 V. Toinkinson, 398, 
 
 Kmworthy v. Pi'ppiiit, 10. 
 Kfiiyon V. VVnkcs. 17, 721. 
 
 tKeoii V. Koon, 1()7. 
 Kcpp et nl V. Wiijirett et nl. 05. 102. 
 [Kerr ct nl v. Bowie, 63, 619, 077. 
 V. IIiiyneH, 10. 
 V. Jcston, 447. 
 et nl V. FiiUnrton et al, nOS. 
 V. I't-rry, <i32. 
 ct nl V. Smitli ct al, 283. 
 V. Wnldie et al, 608. 
 
 V. Wilson, 483. 
 
 ferrison v. VVnIiingborougli, 58, 620. 
 [crry v. Reynolds, 08. 
 Cetcliuin et al v. Keefer, 61. 
 
 — etnl V. Ready, 314. 
 Cettlfwell V. Dyson, 265, 
 
 toy V, Thumbleby, 119. 120, 121. 
 
 ■V. Mnckyntire, 662. ' 
 Ceyns'hnm Hliie Lias Co. v. Baker, 11. 
 teys V. llarwood, 297. 
 
 Smith, 628. 
 [idd V. Davis, 681, 
 
 V. Wnlker, 123. 
 [idy:ill V. Moor, 725. 
 [idwelly v. Brand, 653, 
 lilbourn v. Trot, 411, 
 
 — V. Wallace, 436, 
 
 Cilkenny G -ent Southern and Western 
 
 Rnilwnj Co. v. Archer, 631. 
 till V. Ilollister, 233. 
 ^ilner v. Bniley et al, 127. 
 inibray v. Draper, 632. 
 Inderley v. Lewis, 395, 
 Inloch V. Hall, 380, 419, 427, 
 ing. In re, 617. 
 
 V. Birch, 354, 653. 
 V. Dunn, 687. 
 et al V. Iloaro, 72. 
 V. Hopkins, 3. 
 V. Hunt et al, 109. 
 V. Knott. 867. 
 V. Lord Turner, 81. 
 V. McDonald, 369. 
 V. Monkhouse, 11, 63. 
 V. Norman, 130, 
 
 of Greece v, Wright, 631 , 633, 634, 
 V. Pippett, 827. 
 V. Robins, 342. 
 V. Simmonds et al, 204. 
 V. Simmons, 812. 
 et al V. Thorn, 84. 
 et al V. Walker, 714. 
 V. WilliamB, 110. 
 [ing's College v. Maybeo, 826. 
 D 
 
 Kin^jsl'drd v. Swinford, 175, 176. 
 V. The Great Western 11. 
 
 Co. 250. 
 Kinnearo v. Keano, 166. 
 Kiii-ey v. Ni wiiombe, 509. 
 Kirby v. Dolby, 50. 
 
 V. Kllisori, 681. 
 
 V. S'lowden, 630, 
 
 Kirk V. Doll.y, 9, 10. 
 Kirkhniii v. Wheeley, 671. 
 Klrkputiick v. Tlie Bank of England. 
 
 7tiO. 
 Kirkus v. Hodgson, 244. 
 Kirwan v. .Jennings et al, C56. 
 Kisby V. Tiio I'reston and Holyhead 
 
 Railway Co. 22. 
 Kit V. Life,'l77. 
 Kitchen v. Brooks, 70. 
 
 V. Mclntyre ct al, 333. 
 
 — V. b oos, 60. 
 
 V. Skeel et al, 389, 840. 
 
 Kitchenman v. Skeel et al, b4. 
 Kitchin v. Wilson et al, 19. 
 Kitson V. Short, 85. 
 Knapp V. Salsbury, 724. 
 Knight V. Brown, 144, 710, 
 
 V. Egerton et al, 122. 
 
 V. Gaunt, 328, 
 
 V. Hasty, 638. 
 
 V. Lynch, 135. 
 
 V. McDonall et al, 310, 314. 
 
 V. Pocock, 50. 
 
 et al V. The Gravesend Railway 
 
 Co., 7<;o. 
 
 V. Warren, 10. 
 
 V. Moore, 127. 
 
 Knott V. Fitzgibbon, 631, 633. 
 Knowles v. Burward, 157. 
 
 V. Johnson, 9. 
 
 Koyle V. Wilcox, 85, 36, 665. 
 Krumer v. Waymark, 193. 
 Kyle et al, In re, 247. 
 Kynastou et al v. Crock, 725, 728. 
 Kynneard v. Leslie, 319. 
 
 La Banca Nazionale Sedo di Torino v. 
 Hamburger, 318, 
 
 Laccy v, Forrester, 719, 
 
 V. Umbers, 16G. 
 
 Lacharme v. The Quartz Rock Mari- 
 posa Gold Mining Goi, 261, 2G2, 
 266. 
 
 Lackington v. Atherton, 879. 
 
 Ladd V. Harwell et al, 385. 
 
 V. Thomas et al, 839. 
 
 Ladbroke v, Williams, 327. 
 Ladbrooke t. Phillips, 659, 
 Laderoute v, Cullen, 428. 
 
1 
 
 TABLE OF CAHE8 ClTKl). 
 
 ■'1 
 
 Lnfond v. Tliuldnrk, 137. 
 LafoKo V. Smith et nl, 119. 
 La ForcHt ct nl v. Lnii^jan, 166. 
 
 V. Wftll, 158. 
 
 Lnincf v. Cundnlo, 663. 
 Lnkirt ct ol v. MiishIo, 422. 
 V. Wntson, 49. 
 
 Lnmb v. Mickk-thwaite, 17, 721, 722. 
 Lnnihe v. Smytho, lH, 79, 81. 
 Lambert ot nl v. IIutchiDSon, 241, 217, 
 248. 
 
 V. Pnrnoll, 667. 
 
 Lnmey v. Bishop, 308, 
 Lnmond et nl v. Davall, 715. 
 
 V. Eiffe. 32. 
 
 Lnmpioro v. Moreday, 178. 
 Lorapton v. Collingwood, 178. 
 Lanark «fe Drummond Plank Road Co. 
 
 V. Bothwell, 57. 
 Lancnster Canal Navigation Co., Ex 
 
 parte, 361. 
 Cotton Spinning Co. v. Grei- 
 
 torex, 276. 
 Land v. Burn, 384. 
 
 V. Gilkison, 460, 470. 
 
 et al V. Woodward, 85. 
 
 Lander v. Gordon, 348, 685. 
 Landon v. Stubbs, 651, 694. 
 Lane v. Isaac, 64. 
 
 V. McDonell, 62. 
 
 V. Mullins, 717, 722. 
 
 V. Parsons, 111. 
 
 V. Ridley, 106. 
 
 V. Smith, 90. 
 
 V. Tewson, 722. 
 
 Lang V. Comber, 81. 
 Langford v. Woods, 141,730. 
 Langley v. The Earl of Oxford, 278. 
 Langston et al v. Cotton, 256. 
 Lannan v. Lord Audley, 194, 650. 
 Lanyon's Bail, 6f 8. 
 
 Laporte'e Bail, S78. 
 
 Larchin et al v. Buckle, 188, 189, 329. 
 
 Larnder v. Dick, 143. 
 
 Larssen v. The Monmouthshire Rail- 
 way and Canal Co" 632. 
 
 Lascaridi et al v. Gurney et al, 140. 
 
 Latham v. Hyde, 652. 
 
 Latta V. Wallbridge, 219, 226, 228. 
 
 Lattimore v. Garrard, 103. 
 
 Laughton y. Ritchie, 140. 
 
 Launceston and Victoria Railway Co. 
 v. Brennan, 4. 
 
 Laurie t. Russell, 224, 225, 226, 227, 2S1 
 
 Lavis V. Baker, 74, 484. 
 
 Laverty y. Patterson, 342, 351. 
 
 Law et al v. Blackburrow, 222. 
 
 V. Tbompsoa et al, 161. 
 
 Lnwo V. Isimcs, 61. 
 Lnwlor V. Miirchinon, 200. 
 Lawrence v. Clark, 281. 
 
 et nl Hardy, 310- 
 
 V. Hodgson, 194, 660. 
 
 y. llogben, 676. 
 
 V. Hooker, 276. 
 
 y. Stephens, 92, 97, 708. 
 
 y. Tindal, 318. 
 
 V. Wilcock, 199, 498. 
 
 Luwrenson v. Hill, 167. 
 
 Laws et al v. Bott, 827. 
 Lawson y. Robinson, 643. 
 Lawton v. Elinoro, 136. 
 Lench y. Dulmnge, 327. 
 
 y. Jarvis, 7, 23. 
 
 Leader, The, 395. 
 
 et al V. Rliys, 400. 
 
 y. Smith, 310.- 
 
 Leaf V. Butt, 281. 
 
 et nl y. Tuton, 168, 713. 
 
 Lcftke V. Noble, 393. 
 
 Lear v. Caldecott, 85. 
 
 Lenlhly y. Carey, 156. 
 
 Lo Bret y. Pnpilon, 116. 
 
 Lo Claire ot al v. Prudhomme, 148. 
 
 Ledyard ct al v. Thompson, 638. 
 
 Leo V. Carlton, 75. 
 
 et al V. Gorric, 398. 
 
 y. Moddoxes, 196. 
 
 et al V. Neilson et al, 352, 353. 
 
 V. Pago, 234. 
 
 Leech v. Clabburn, 56, 101. 
 
 y. Gibson, 825. 
 
 y. Leech et al, 618, 537. 
 
 Lecming et al v, Ilagerman, 375. 
 Lees y. Reffit et al, 419, 652. 
 
 y. Smith, 66, 630. 
 
 Leeson y. Higgiii s. 2^4. 60 6. 6 16. 
 Leete yTTlre Gi'SsKain InS7"C6. 292^ 
 Legatt y. Marmontt, 12. 
 Legear v, Lacroix, 317. 
 Legge V. Boyd, 140, 730. 
 
 y. Evans et al, 367. 
 
 Leggett y. Finley, 240. 
 
 Leggo y. Young et al, 211. 
 
 Le Gruce Sr. Apsley v. Geve, 177. 
 
 Leigh v. Baker, 318. 
 
 y. Sherry, 256. 
 
 Leigh ton v. Leighton, 660. 
 Leishman v. Eastwood, 630. 
 Le Messurier y. Willard, 292. 
 Lemoine y. Raymond, 816, 624, 
 L' ..prine v. Hamfrey, 728. 
 Lj Normand v. Prince of Capua, 631. 
 Leonard v. Buchanan, 131. 
 Leslie y Johnstone, 103. 
 V. Richardson, 247, 248. 
 
TABLE OF CASES CITED. 
 
 Icsslio V. Lonliy, 278. 
 Letticu V. Sa\yv-iT, :?.iO. 
 Li'ucklmrt v. (jooimt et al, 140. 
 LcW'UX -'a-K'y, ^T- 
 
 Levi V. . »7!>. 
 
 Lovinson y. c*yer, «:t7. 
 Leviwcomptu v. IVnccl, 6r)4. 
 Levy V. Drew, 74, 76, 312. 
 
 V. Ilamcr, 379. 
 
 LewoUyn v. Norton, 12. 
 Lowes V. Clioler. 44tt. 
 Lewiii V. Edwards, Udd. 
 
 . et ol V. Holbrook, 235. 
 
 Lowirio et al v. Savage, 667. 
 Lewis, Ex parte, 616. 
 
 V. Aicock, 7'.!.S, 727. 
 
 V. Brown, (577. 
 
 V. Calor, 704. 
 
 V. Campbell, 85. 
 
 V. Davison, 5-2, 53, 676. 
 
 V. Fullarton, 474. 
 
 V. llamden, 216. 
 
 V. Hay, 286. 
 
 V. ' on, 629. 
 
 V "\ng, 144. 
 
 V M 297. 
 
 . V. Jjo.u Kensington, 638. 
 
 V. Lord Tankervillo, 638. 
 
 ot al V. Manning, 180. 
 
 V. Newton, 3. 
 
 Parker, 719. 
 
 — V. Samnel, 716. 
 
 — et al V. Sapio, 301, 
 — V. Walters, 106. 
 
 V. Wells, 291 
 
 Ley V. Barlow, 275. 
 Leyland v. Tancred et al, 122. 
 Lidgett V. WilV\ ma, 470. 
 Lievesley v. Gilmore, 246, 636. 
 Liffln V. Pitcher. 99, 446, 489, T03. 
 Light V. The Wocdsto'-v & Lake Erie 
 
 Railway & Harbour Co., 292. 
 LiHie v. Price, 726. 
 Lilly V. Staiford, 631. 
 Limerick <fc Waterford Railway Co. v, 
 
 Fraser, 631. 
 Limonius v. Mitchell!, 634. 
 Linacer's Case, 177. 
 Lind V. Isle of Wight Ferry €o., 261. 
 Lindsay v. Dowling, 283. 
 
 et al V. McFarling et «1, 667. 
 
 V. Wells, 70, 669. 
 
 Linfoot V. O'NeW, 434. 
 Linger v. Simpson, 405. 
 Liufey t. Bates, 424. 
 Linly v. Cheeseman, 38. 
 Linthwaite v. Belling, 423. 
 Linwood y. Squire, 1^8. 
 
 LiHmoro v. Bendlo, 199, 498, 
 Lirtt.T V. Uouilon, 080. 
 
 V. Mundull, 180. 
 
 Litclitiold V. Ufady, 651, 667, 729. 
 Little ot ol V. .Nuwton, 286, 244. 
 Littlechild v. Banks, 126. 716- 
 Liverpool Borougii Bank v, Eccles et 
 
 ol, 713. 
 Livingston v. Bailll, 2S6. 
 Uoyd, Ko, 680. 
 
 V. Berkovitz, 648. 
 
 et al V. Blackburn, 168, 
 
 V. Davis, 630, 
 
 V. Day, 144. 
 
 V. Harrison, 380, 
 
 V. Howard, 146. 
 
 V. Jones, 11, 836, 
 
 V. Kent, 649, 661- 
 
 V. Mansell, 652, 
 
 V, Mostyn, 281. 
 
 V. Ogleby, 334. 
 
 Lock V. The Wilts, Somerset and Wey- 
 mouth R. Co. 134. 
 
 Lockwood V. Lindsay, 634, 
 
 V. Nash, 396, 403, 
 
 Lofft et al V. Dennis, 176. 
 
 Logan V. Ryan, 837. 
 
 Lomax v. Berry, 426, 
 
 V. Kilpin, 60, 
 
 London Assurance Co. v, Perkins, 673. 
 
 «fe Brighton R, Co. v, Fair- 
 
 clough, 130, 140. 
 
 - V. Wilson, 
 The Vestry 
 
 140, 238. 
 
 — Gas Light Co. v, 
 of Chelsea, 260, 261. 
 
 — and North Western Railway 
 Co, V. Webb, 469, 
 
 and Southern Railway Co. v. 
 
 Webb, 471. 
 Long V. Hitchcock, 806, 
 V. Orsi et al, 716. 
 
 V. Wordsworth, 12. 
 
 Longfield v. Cashman, 473. 
 Lopes v. De Tostet, 703. 
 Lord, In re, 235, 287, 
 
 Aldborough v. Burton, 631. 
 
 Boston V, Mesham, 219, 
 
 Clifden V, The Casual Ejector, 
 
 617, 
 
 Clinton v, Wales, 654, 556, 
 
 Ferrers v, Shirley, 801. 
 
 — Hnntingtower v. Heely, 424. 
 
 Lucan v., )u*:'h et al, 141. 
 
 Nugent V. Harcourt, 631, 
 
 Porchesterv, Petrie, 179. 
 
 Portmore v. Goring, 276, 
 
 Seafield y. Pratt, 2d7. 
 
^mmmm 
 
 lii 
 
 TABLE OF CASES CITED. 
 
 .1 
 
 
 Lord Wellesloy v. Withers, 201, 205, 
 2C6. 
 
 V. Ilillinrd, 98. 
 
 V. Lee, 241. 
 
 V. Wardlo, 649. 
 
 Lorimer v. McElrath, 108. 
 Loring, In re, 615. 
 Lorymer v. HoUister, 620. 
 Losh V. Hague, 473. 
 Lossing V. Horned, 106, 224. 
 Loucks V. Fnrrard, 384. 
 Loughran v. Hill, 156. 
 Lount V. Smith, 715. 
 
 Love V. Armour, 286. 
 
 LovelasB v. Richardson et al, 410, 413. 
 
 Lovell V. Walker, 75. 
 
 Lovelock V. Frankly n et al, 471. 
 
 d. N orris v. Dancaster, 619. 
 
 Low V. Burrows, 719. 
 
 V. Chifney, 719. 
 
 Lowe V. Hall, 718, 
 
 -' V. Lowe, 493" 
 
 V. Morrice, 120, 338. 
 
 V. Peers, 200. 
 
 V. Steele, 102, 122. 
 
 Lowes V. Kermode, 233. 
 Loweth V. Smith et al, 128, 162, 
 Lowfield V. Jackson, 158. 
 Lowry v. Robinson, 283. 
 Loyd V. Ogle, 177. 
 Luard et al v. Butcher et al, 203. 
 Lucas, In re, 615. 
 V. Beale, 78, 96. 
 
 V. Wilson, 220. 
 
 Luce V. Izod, 172, 176. 
 Luck et al v. Handley, 151. 
 Lumley v. Dubourg, 327. 
 
 V. Gye, 129, lU, 138. 
 
 - — • — V. Thompson, 98. 
 
 V. Wagner, 184, 471. 
 
 Lund V. Savage, 607. 
 Lundy v. Dickson, 392. 
 Lunn V. Turner et al, 730. 
 Lupart V. Welson, 223. 
 
 Lury et al v. Pearson et al, 238, 234. 
 Lush 7. Russell, 159. 
 Luahington v. Waller, 639. 
 Luxford V. Qroombridge, 679. 
 Lyall et al v. Edwards et al, 180. 
 
 et al V. Uiggins, 712. 
 
 et al T. Lamb, 218. 
 
 Lycett V. Tenant, 287. 
 
 Lyman v. Brethren, 48, 49, 678. 
 
 ' ■ et al T. Smith, 283. 
 
 et al v. Snarr, 282, 649. 
 
 Lynch t. Connolly, 109. 
 
 v. O'Hare, 276. 
 
 Lyne et al t. Sessfield, 128. 
 
 Lyon V. Walls, 65^. 
 Lyons, Ex parte, 615. 
 
 V. Fitzgerald, 293, 
 
 Lyster v, Kirkpatrick et al, 637, 
 
 V. Ramage, 537. 
 
 Lyttleton v. Cross et al, 117, 731, 
 
 Macarthur v. Campbell, 215, 230. 
 Macarthy v. Smith, 629, 636. 
 Macdonald v. Maclaren, 414. 
 Macdonnell v. Evans, 296, 298. 
 MacDougall v. Nicholls, 142. 
 MacDowal v. Hollister, 392. 
 Macfarland v. Kezer et al, 131. 
 MacGachen, In re, 614. 
 Macgregor Lnird, The, 278. 
 Macher v. Billing, 141. 
 Mackay v. Wood, 158. 
 Mackewan v. Holt, 266. 
 Mackinnon v. Johnson, TIO. 
 Mackintosh v. Blyth, 2r7. 
 Macleed v. Marsclen, 601. 
 Maclellan v. Howard, 140. 
 Macmartin v. Thompson, 136, 14^, 
 
 419,427. 
 Macnamara v. Booth, 638. 
 Macpherson et al v. Kerr, 391. 
 Macrae v. Clarke, 380. 
 Mnddock v. Phillips* 4 ?2. 
 Maddocks v. Holmes et al, 61. 
 Madrid Bank v. Bayley, 267. 
 Magrath v, Browne, 2!>3. 
 
 V. Hardy, 403. 
 
 Maguire v. Kincaid, 644. 
 Maher v. Purcell, 94. 
 Mahoney v. Kelcher, 631. 
 
 V. Twick, 433. 
 
 Mair v. McLean, 292. 
 Maitland v. Brown, 331. 
 Makinson, Ex parte, 615. 
 Malcomson v. Morton, 634. 
 Malins v. Lord Dunraven, 274, 
 Mallock V. Jonston, 433. 
 Malone v. Geraghty, 567. 
 
 V. Hackett, 2a4. 
 
 Malpass v. Mudd, 55. 
 
 Mammary v. Paul, 723. 
 
 Manby v. Cremonini, 95, 
 
 Manielly v. Hay», 633, 684. 
 
 Manley <b Anderson et al, In re, 221, 
 
 228. 
 
 V. Bojrcot, 389, 340. 
 
 Mann v. Williamson, 830. 
 Manners v. Boulton, 835. 
 
 qui tam v. Postan, 633. 
 
 Mannin v. Partridge, 88. 
 Manning r, Farquuarson, 896. 
 Mansell r. Burredge et al, 228, 
 
TABLE OP CASES CITED. 
 
 liii 
 
 7, 731, 
 
 5. 230. 
 
 36. 
 
 14. 
 
 298. 
 42. 
 12. 
 
 131. 
 
 6. 
 
 10. 
 
 ,n, 1S<5, U% 
 
 8. 
 
 r. 391. 
 
 il, 64. 
 267. 
 
 Mansell v. Fecney, 259. 
 Mansfield v. Brearey, 12, 199. 
 Mantell v. Southall, 424. 
 Mapel V. Woodgate, 61. 
 Mara v. Qnin, 411, 414. 
 Marcanski v. Cairns, 316. 
 Marcon et al v. Bloxam, 183. 
 r Margettson v. Rush, 286. 
 I Maria V. Hall, 631. 
 IMarkham v. Turner, 177. 
 [Marks v. Marriot, 242. 
 iMarquis of Donegal v. Ingrim, 631. 
 iMarriot v Stanley, 480. 
 [Marriott v. The London and South 
 
 Western Railway Co. In re, 678. 
 iMarris v. Jioulton, 374. 
 iMarsack v. Webber, In re, 652. 
 IMarsden v. Henderson, 726. 
 
 V. Overbury, 222, 249, 255. 
 
 larsh V. Beard 631. 
 V. Bulteel, 223. 
 larshall v. Bishop of Exeter ct al, 134. 
 V. The Emperor Life Assur- 
 
 ance Society, 629. 
 
 V. Whiteside et ux. 119, 122. 
 
 larston v. Allnn. 146, 718. 
 lartin v. Andrews, 255, 702. 
 -V. Arthur, 62C. 
 
 ■ V. Hemming, 263, 264, 268. 
 ■V. Martin, 327. 
 • V. McCharles, 670. 
 - et ux. V. Nutkin et al, 469. 
 ■V, Smith, 718. 
 
 ■ et nl V. Smyth ct al, 92. 
 ■V. Stinson et al, 228, 680. 
 ■V. Stone, 327. 
 
 ■ V. The Mayor, Ac, of Belfast, 
 
 
 Hf 245. 
 
 
 ^m V. Titmarsh. 634. 
 
 ■ 
 
 
 34. 
 n, 274. 
 
 
 m V. Wright, 474. 
 
 
 ilartinoy et nl v. Gerber, 85. 
 
 7. 
 
 ilasi'car v. Clinrabers et al, 240, 2 
 
 
 (lash V. Denslmm, 310. 
 
 
 riasonv. Babington, 345. 
 
 
 V Til.n<ll<iiT "71 « TOrt 
 
 
 V. Fnrncli, 91, 722. 
 
 584. 
 
 
 
 al, In ro, 22!, ■ 
 
 V. Jeffrey, 032. 
 
 D 
 
 V. Kiddle, 037. 
 
 840. ■ 
 
 V. Muggeredge, 390. 
 
 1 
 
 
 
 1 
 
 V. Kiddle, 637. 
 
 tan, 633. ■ 
 
 
 
 1 
 
 V. Wythe, 266. 
 
 D, 896. I 
 
 Hasson v. Ilili et al, 91, 126. 
 
 »1, 228, 
 
 . __ y ~ - J — — — ^. 
 
 klastwnian et al v. Judson, 308. 
 
 Masters v. Ibberson, 719. 
 
 V. Stanley, 307. 
 
 Mastin v. Garrow, 331. 
 Mathew v. Blackmoro. 710. 
 
 V. Davis, 222. 
 
 Matthew v. Osborne, 651, 567. 
 Matthews v. King, 471. 
 
 V. Webster, In re, 231. 
 
 Matthewson v Baistow, 679. 
 
 V. Glass, 331. 
 
 V. Ray, 97. 
 
 Mattice v. Farr et al, 728. 
 Maude v. Mersham, 716. 
 Maugham q. t. v. Walker, 672. 
 Maunsell v. Lord Massareene, 2!<5. 
 Mavor v. Spalding, 27, 50. 
 Mawman v. Tegg, 474. 
 Maxwell v. Footner, 317. 
 
 V. Ransom, 165, 316. 
 
 May V. Hawkins, 265, 267. 
 
 V. Pike, 268, 520. 
 
 V. Seyler etal, 133. 
 
 Mayall v. Higbey, 405, 470. 
 Maybury v. Mudie, 75, 80, 81. 
 Mayer v Harding, 446, 704. 
 Mayhew et al v. Blowfield, 158. 
 Mayor and Aldermen City of London 
 
 V. Cox et al, 396. 
 
 of Bath V. Pinch, 244. 
 
 of Berwick-upon-Tweed v. 
 
 Shanks, lOO. 
 
 of Macclesfied v. Gee, 634. 
 
 of Reading v. Clarke, 90. 
 
 Mays V. Archer, 583. 
 
 et al V. Uannel, 243. 
 
 McAlpin V. Gregory, 20. 
 Mc.\lpine V. Mangnall, 633. 
 McAnnay v. Turnbull, 359. 
 McBean v. Duffy. 677. 
 McBride v. Lee, 520. 
 JTcCaguo V. Clothier, 327. 
 McCailum v. Boswell, 518, 687. 
 
 V. xvIcCallnm, 544. 
 
 McCann v. Bowers, 390, 
 McCarthy v. Low, 353. 
 McCay v. Magill, 201, 276. 
 McClain v. Maitland, 228, 
 McClaine v. Abrahams, 20. 
 McCollum V. Davis, 202. 
 McConibie v. Anton, '255. 
 McConnel v. Jonston, 632. 
 McCormick v. Melton, 653. 
 
 V, Park et al, 181. 
 
 McCrea v. Hamilton, 816, 
 
 V. IJoldsworth, 472, 474. 
 
 V. Osb(,rne et al, 281. 
 
 McCreight v, Stevens, 629. 
 McCuUocU V. Robinson, 630. 
 
m 
 
 in* 
 
 m 
 
 Kv 
 
 TABLE or CASES 0ITE1>. 
 
 :M 
 
 McCunniffe v. Allan et al, 131. 
 McDade d. O'Connors v. Dafoe, 633. • 
 McDermott v. Jame?on, 108. 
 
 V. Keeling, 519. 
 
 V. McDermott, 537. 
 
 McDonald v. Cameron, «70, 371. 
 
 V. Clarke, 426. 
 
 V. Dicarie, 6H1. 
 
 V. Macluran, 410. 
 
 V. McDonald et al, 225. 
 
 V. McHugh et ux, 293. 
 
 McDonnell v. Carr et al. 107. 
 
 V. Conry, 281. 
 
 V. Jameson, 209. 
 
 McDonell v. McDonell, 370. 
 
 V. Provincial Ins. Co., 108. 
 
 McDonough v. McCartney, 19. 
 McDougall V. Gilchrist, 483. 
 McDowallv. Lyster, 718. 
 
 V. Hollister, 892. 
 
 McEdward ▼. McEdward, 211. 
 McEvoy V. Agar, 296. 
 
 McEwen v. Stoneburne, 353. 
 McFarlane v. Allen et al, 7. 
 
 V. Brown, 31^. 
 
 McFadyen v. Mayor and Corporation 
 
 of Liverpool, 263. 
 McGee v. McLaughlin, 518. 
 McGill et al v. McLean, 64. 
 McGinnis v. Corporation of Yorkville, 
 
 403. 
 McGowan v. Gilchrist, 380. 
 McGregor, In re, 616, 690. 
 
 V. Graves, 339. 
 
 V. McGregory, 128. 
 
 V. Scott, 423. 
 
 McGuffin V. Cayley, 86. 
 McGinn v. Benjamin, 70, 284. 
 McGuire v. Kiucaird, 285. 
 
 V. Sneath, 642. 
 
 Mclncherny v. Gahvay, 558. 
 Mclnnes v. Maclin, 31. 
 Mclnnis v. Hardy, 266, 390. 
 Mcintosh V. McKenzie, In re, 615. 
 
 V. White, 423. 
 
 Mclntyre, Ex parte, 615. 
 
 V. Miller et al, 625* 
 
 McKay v. Burley, 147, 148. 
 
 V. Hall. 346. 
 
 V. McDearmid, 682. 
 
 V. Mitchell, 393. 
 
 V. Tait et al, 392. 
 
 McKee v. Huron District Council, 85. 
 
 V. Irwin, 434. 
 
 McKellar v. Grant, 377. 
 
 V. Keddio, 27. 
 
 McKenzie v. Bussoll, 478. 
 V. Chark, 263, 266, 276. 
 
 McKenzie v. Gibson, 320, 
 
 et al V. McNab, 36. 
 
 V. McKenzie, 225. 
 
 et al V. McNaughton, 97, 677. 
 
 et al V. Van Sickles et al, 321, 
 
 McKindley v. Johnston, 531. 
 McKinley v. Bowbeer, 512. 
 McKindsey v. Johnson, 510. 
 McKinnon v. Burrowes, 292. 
 
 V. Johnston, 687. 
 
 McKinstry v. Arnold, 15. 
 McKnight V. Scott, 80. 
 McLachlan, In re, 573. 
 
 McLaren et al y. Sudworth et al, 391,. 
 
 393. 
 McLay et al, In re, 465. 
 McLean v. Curaming, 342. 
 
 V. Kezar, In re, 224. 
 
 V. Knox, 28. 
 
 V. Phillips, 124. 
 
 V. Stuart et al, 344. 
 
 McLellan v. McClellnn, 611. 
 
 V. Rogers, 3 1 6. 
 
 et al V. Smith, 327. 
 
 McLeod V. Ebcrts et al, 626. 
 
 V. Jackson, 91, 162. 
 
 McLoughlan v. The Royal Exchange 
 
 Assurance Co., 108. 
 McMahon v. Coflfee, 85. 
 
 V. Leonard et al, 534. 
 
 McMicking v. Spencer, 423. 
 McMullen et al, In re, 221. 
 McMurrich v. Thompson, 352, S53. 
 McMurtry v. Munro, 599. 
 McNab V. Dunlop et al. In re, 568. 
 
 V. Magrath, 725. 
 
 V. McDonell, 163. 
 
 V. Stewart, 526, 530. 
 
 McNally v. Stephens, 409. 
 McNaught v. Turnbull, 434. 
 McNaughton V.Webster, 367, 392, 39:, 
 
 403. 
 McNeill V. McNeale, 241. 
 V. Train, 728. 
 
 V. Williams, 473. 
 
 MeNider v. Martin, 30. 
 
 McPherson et al v. Bail of Mosier, GC;. \ 
 
 L't al V. McPherson, 599. 
 
 V. Walker, 218. 
 
 McRae v. McLean, 228, 229. 
 Meadows v. Kirkman, 269, 274. 
 Meagoo v. Simir.ons, 294. 
 Mearns v. Gilbertson, 436. 
 Mease v. Mease, 16^!. 
 Measom v. Movntcastle et al, 7.9; 
 Mcdcalfe v. Widdetleld, 387. 
 Medlicott v. Hunter, 50. 
 Medway v. Gilbert, 99. 
 
TABLE OF CASES CITED. 
 
 Iv 
 
 th et al, 391,, 
 
 Meeke v. Oxlade et al, 06. 
 Meens v. Thellusson, 1C4. 
 Meiglian et al v. Brown, 85. 
 
 Z — ct al V. Piiuler, 48if. 
 
 Muin et nl v. Short et al, 34.5. 
 MeUlrum v. Tiilloch. 391, 396, SOY. 
 i Mellish V. The BufValo. Urantford and 
 Goderich Railway Co., 393, 394. 
 ■ V. Ilicliardson, 312. 
 
 tMelton V. Garment, 493. 
 tMeiieilly v. McKenzie, 350, 357. 
 [Went;eii9 V. Perry, HI. 
 iWerccr v. Bond, 519. 
 
 V. Voght et al. 109. 
 V. Whall, 29-2. 
 [Merchants' Express Co. v. Mereton, 43. 
 [Merev v. Butter, 38 J. 
 
 -- V. Galot, 16, 721. 
 iMeredith v. Gittens, 51, 72. 
 Meriiigton v. Becket, 156. 
 ""eriton v. Coombes et al, 152. 
 ersey Dock & Harbour Commission- 
 ers V. Jones, 206, 318. 
 ertens v. Haigh, 261. 
 esecar v. CiiainLers et al, 224. 
 ilcssin V. Lord Massareene et ux., 216. 
 essiter v. Rose. 1, 14 7, 158. 
 esure v. Britton, 7f)4. 
 iletcalf V. Booth, 164, 312. 
 
 et al V. Hetherington, 98. 
 V. McKenzie et al, 316. 
 Ictcalfe et ux. v. Boote, 197. 
 letropolitan Building Society v. Mc- 
 pherson, 510. 
 
 Saloon Omnibus Co. v. 
 
 Hawkins, 260. 
 letziier v. Bolton, 110, 315, 318, 713. 
 leiile et al v. Goddard, 3H7. 
 lewburn v. Langlej', 327. 
 lever et al v. Barnett et al, 274. 
 Meyrick v. Woods, 281. 
 "lieliael v. Myers, 685. 
 iMichell V. Cue et ux., 408. 
 iMii'iiie etal v. Reynolds et al, 361,376. 
 [Middiediteli v. Ellis, 85. 
 [Middleton V. Hill, 412. 
 
 V. Hughes, 92. 
 V. Mucklow, 711. 
 iMileham v. Eicke, 716. 
 [Midland R. Co. & Henning, In re, 219. 
 I Miles V. Bough, 85, 194. 
 
 d. Farmer v Thrustout, 516, 
 V. Ilarwood, 121. 
 V. Williams, 194, 650. 
 [Miloy V. Walls, 156. 
 [Millengen v. Picken, 470. 
 jMLUer v. Beaver Mutual Fire 
 nnce Association, 357. 
 
 Insur- 
 
 Miller v. G.W. Railway Co., In re, 223. 
 
 V. Miller, 669. 
 
 V. Minn et al, 396. 
 
 V. Munro, 85. 
 
 V. Mynn et al, 392. 
 
 V. O'Brien, 19. 
 
 V. Robe et al, 227. 
 
 et al V. Shuttleworth, 220. 
 
 V. Stilt, 373. 
 
 V. The Beaver Mutual Fire In- 
 surance Co., 599. 
 
 V. Thomson, 702. 
 
 V. Young, 632. 
 
 Miller's Bail, 664, 665. 
 Millership v. Brookes, 720. 
 Jlillington v. Claridge, 244. 
 Mills V. Barber, 292, 719. 
 
 V. Bayley, 245, 247. 
 
 V. Boultbee, 19. 
 
 V. Brown, 99, 622, 68S. 
 
 V. Gossett, 49. 
 
 V. Oddy, 719. 
 
 Milne et al v. Gratris, 246. 
 Milner V. Field, 716. 
 
 V. Jordon, 168. 
 
 et al V. Milnes et al, 87. 
 
 Milstead v. Cranfield, 245. 
 
 ilinchin et al v. Clement, 336. 
 
 Mines Royal Societies v. Magnay, 167. 
 
 171,470. 
 Minshall v. Evans, 118. 
 MinshuU v. Oakes et al, 174. 
 Mitchell et ux. v. Crassweller et al, 
 
 110, 723. 
 
 V. Foster, 446, 489, 703, 
 
 V. Harding, 51. 
 
 V. Iliirrirt, 238. 
 
 V. Lee, 393. 
 
 V. Noble, 38. 
 
 V. Staveley, 225. 
 
 V. Tarbutt et al, 126^ 
 
 Mitford V. Finden et al, 157. 
 Mitchinson v. llewson, 88. 
 Moberly v. Baines, 91, 155. 
 Mobbs V. Vandenbrande, 535, 580. 
 Moekford v. Taylor, 85, 7o8. 
 Moillii't et al v.'Powell, 3U9. 
 Moisior v. McCan, 479. 
 M(dson v. Monroe, 119. 
 Monek v. Northwood, 100. 
 Monday v. Lciir, 52. 
 Mondei v. Steele, 122. 
 Monk V. \Va(ie, 285. 
 Monkton v. Attorney-General, 459. 
 Montague v. Richardson et al, 861. 
 Montford v. Bond, 331. 
 Montgomery v. Brown, 510. 
 , ap., V. Bojce, resp., 282. 
 
lUa 
 
 immim 
 
 III 
 
 M 
 
 Montgomery t. Dean, 336. 
 Moody V. Aslatt, 49. 
 
 V. Doiignll, 625. 
 
 V. Morgan, 19. 
 
 V. Pheasant, 200. 
 
 Moor V, Adam, 703. 
 
 Moore v. Boyd et al, 105, 106, 108, 318. 
 
 V. Butlin, 126. 
 
 V. Darlcy, 2a0. 
 
 V. Forster, 158. 
 
 V. Grand Trunk 11. Co. 111,704. 
 
 V. Hawkins, 117. 
 
 V. James, 681. 
 
 V. Magan, 32, 437. 
 
 V. Roberts et al, 193, 194, 205. 
 
 TABLE OF CASES CITED. 
 
 J i! 
 
 V. Watson, 212. 
 
 Moran v. Palmer, 7, 8. 
 
 et al V. Schermorhoni, 521. 
 
 Morell V. Wilmott, 645, 704. 
 Morgan v. iJirnie, 716. 
 V. Burgess, 4ii9. 
 
 etal V.Cook etal. 313,512,513. 
 
 V. Cubitt et al, 75. 
 
 V. Edwards et al, 67, 68. 
 
 . V. Ferny hough, 3 -'5. 
 
 et al V. Harding et al, 115,732. 
 
 V. Harris, 529, 630. 
 
 — : V. Hellems, 633. 
 
 V. Jones, 323. 
 
 et al V. Marquis et al, 722. 
 
 V. Painter, 196. 
 
 V. Pebrer, 713, 710. 
 
 et al V. Pike, 315, 319, 321. 
 
 V. Thorne, Kil, 4i6. 
 
 Idorley v. Bank BritishNonh America, 
 
 312. 
 
 V. Newman, 222. 
 
 V. The Great Central Gas Co. 
 
 I'fii 
 
 274. 
 
 V. The Midland Railway Co, 89. 
 
 Jlorphett & Witherden, hi re, 240. 
 Morris v. Barrett, 447, 7ii4. 
 
 et al V. Boulton, 373. 
 
 V. Coates, 196. 
 
 V. James, 18. 
 
 V. Hancock, 99, 622, 6SS. 
 
 et al V. Hauser ct al, 281. 
 
 V. Hunt, 699. 
 
 V. Jones, 17, 722. 
 
 V. Millar, 317. 
 
 V. Morris, 227, 228, 229. 
 
 et al V. Parr, 263. 
 
 V. Smith, 4. 
 
 Morrison, Ex parte, 678. 
 
 V. Hamilton, 727. 
 
 V. Rees, 352, 360. 
 
 et al V. Salmon, 427, 430. 
 
 et al V. Trenchaid, 9t. 
 
 Morrow v. Belcher et al, 71. 
 
 V. Sanders, 275. 
 
 Morse v. Appleby, 14(1. 
 
 V. Apperley, 709. 
 
 V. Teetzel, 423, 433, 699 
 
 Morsten v. Morrice, 178. 
 Mortimore et al v. Soares, 827. 
 Morton v. Burn et al, 349. 
 ]\Ioses V. Levy, 722. 
 Moss V. Dayly, 658. 
 
 V. Smith, 151. 
 
 V. Truscott, 300. 
 
 Mostyn v. Fabrigas, 627. 
 
 V. Pierce, 179. 
 
 Motley V. Downman, 474. 
 
 Mott V. Gray et al, 885. 
 
 Mounsey et al v . ^-rott, 713. 
 
 Mountford et al v. Horton, 91. 
 
 Mountney v. Walton, 128. 
 
 Mowatt V. Lord Londesborongh, 212. 
 
 Moy&o V. Dingle, 684. 
 
 Muir et al v. Munro, 357. 
 Mullens v. Armstrong, 497. 
 MuUin V. Bonjor, 26. 
 Mullins et al v. Ford, 286, 641. 
 
 V. Scott, 143, 144. 
 
 Mumford v. Hitchcocks, 63, 446, 704. 
 Mummery v. Campbell, 438. 
 v. Paul, 723. 
 
 Municipal Council of Ontario v. Cum- 
 berland et al, 108. 
 
 Municipality of Sandwich v. Droullard, 
 135, 140. 
 
 of the Township of Kings- 
 ton V. Day, 226. 
 
 Mundcn v. The Duke of Brunswick, 81, 
 
 Mure V. Kaye et al, 163. 
 
 Murgatroyd v. Robinson, 340. 
 
 Murphy, In re, 23-.'. 
 
 V. Bennet, 392. 
 
 V. Bunt et al, 70, 87. 
 
 V. Burnham, 100. 
 
 et al V. Cotton et al, 231. 
 
 V. Donlan et al, 68. 
 
 V. Fitzpatrick, 275. 
 
 Murray v. Boucher, 140. 
 
 V. Gregory, 295. 
 
 V. King, 103. 
 
 V. Lord Stair, 200. 
 
 V. Silver, 634, f,83. 
 
 V. Simpson, 369, «93. 
 
 V. The Sunderland Dock Co. 
 
 209. 
 
 Mussel V. Faithful, 329. 
 Musselbrook v. Dunkin, 215, 230, 231. 
 Muttleberry et at v. Hornby et al, 131. 
 Myatt v. Green, 16, 721. 
 Myers v. Cooper, 673. 
 
TABLE OF CASES CITED. 
 
 Ivii 
 
 Myers v. Lnznnis, 158. 
 
 — - — V. Rathburn, 10, 50, 316. 
 
 V.Taylor, 111. 
 
 Mylett V. Hiicker, 632. 
 
 Mytton V. Churchwardens A Overseers 
 of the Poor of Thornbury, 299. 
 
 Nnef V. Mutter, 20. 
 Nagle V. Tower, fiSl. 
 Nalder v. riatts, 810. 
 Nnunoa v. Benrick et al, 419, 
 Napier, Ex parte, 40fi. 
 Nash V. Breeze, 94, 713. 
 
 V. BrowH, 90, 293. 
 
 V. Bush, 281. 
 
 V. Dickinson, 376. 
 
 V. Swinburne, 64, 283. 
 
 Nathan v. Cohen, 679. 
 
 et al V. Giles et al, 396. 
 
 National Assurance and Investment 
 
 Association v. Best, 379. 
 Savinffs Bank Association v. 
 
 27. 
 
 Travail, IsO. 
 [Nayior's Bail, 6(')5. 
 [Nazer et al v. AVado et al, 
 pNeal V. llolden, S.5. 
 
 •V. Richardson. 93. 
 i Ncale V. Led^rer, 238. 
 
 — V. McKenzie. 730. 
 
 — V. Proctor, 717. 
 
 — V. Swind, 275. 
 
 — et ux. V. Winter, 56(5. 
 iNeave v. Avery ct al, 169, 525. 
 
 feedham v. Bristowe, 32, 51. 
 ■ v. Fraser, 723. 
 
 v. Law, 140. 
 Teil v. McMillan. 194, fi.lO. 
 feilson et al v. Thompson et al, 473. 
 |!felmes v. lledirps et al, 429, 4o4. 
 
 Barter, 396. 
 
 Bridii^es, 461. 
 
 Grifiitlis, 96. 
 
 Jarvis.-aas,- 5f V 
 
 felaon v. 
 v. 
 
 V. 
 
 ■ V. 
 
 ■ V. Oy 
 
 ^oi 
 
 ile, 631. 
 V. Roy, 6. 
 V. Slieridan, 216. 
 [Nettleford v. Fiinck ex rcl am. 43. 
 Neville v. Fox, 292. 
 Nevils V. Willoocks, 334. 
 Nevills V. Ilervey, 161. 
 Newby v. Mason, 96. 
 Newenhain et al v. Mahon et al, 557. 
 Newkirk v. Payne, 729. 
 I Newman et al v. Faucitt, 659. 
 
 v. Hickman, 19. 
 
 v. Niagara District Mutual 
 
 Fire Assurance Co 210, 214. 
 v. Parbury, 248. 
 
 Newman v. Rook, 396, 399, 403, 
 Newnham v. Ilanny et al, 27, 92. 
 
 ct al v. Law, 1 88. 
 
 Newton v. AUin, 163. 
 
 et al V. Forster, 716. 
 
 et XIX. V. Harland ct al, 557. 
 
 V. Iletherinjiton, In re, 244. 
 
 ■V. London, Brigliton & South 
 
 Coast R. Co. 692. 
 
 V. Holford et al, 119, 144. 
 
 V. Roe, 427. 
 
 V. Rowe et al, 627. 
 
 -etal V. Stewart, 75, 80, 81, 
 
 Niagara 
 
 Newton's Bail, 668. 
 Newtown v. Maxwell, 659. 
 
 <fe Detroit Rivers R. Co. v. 
 Buckwell, 224, 692. 
 
 Harbour & Dock Co. v. Smith, 
 
 477. 
 
 Nias v. Spradoy, 112. 
 Nichol V. McKelvey, 62. 
 Nicholas et al v. Merit, 639. 
 NichoU et nl v. Allen, 461. 
 
 V. Forshall, 286. 
 
 v. Jones, 260. 
 
 V. Williams, 17, 721. 
 
 Nichols V. Bozon, 649. 
 
 V. Chalec, 218. 
 
 V, Tuck, 127. 
 
 Nicholson v. Allan, 423. 
 
 et al V. Dyson, 144. 
 
 d. Spafford v. Rea, 679. 
 
 Nickall v. Crawford, 353, 359. 
 
 V. Cartwright et al, 342. 
 
 Nickalls v. Warren, 228. 
 
 Nicol V. Alison, 254. 
 
 V. Boyne, 45. 
 
 Nicolls V. Bastard, 724, 730. 
 Nimmo v. Welland, 389. 
 Nixon V. Loghlin, 393. 
 
 Noad et al v. The Provincial Insurance 
 
 Company, 634. 
 Noble v. Chapman, 317, 318. 
 Noel V. Boyd, 719. 
 
 V. Rich, 131. 
 
 Noell et al v. Nelson, 414. 
 Nokes v. Fraser, 420. 
 
 v. Gibbon, 678. 
 
 Noland v. Tippings, 33.'). 
 
 Nonell V. Ilullet et al, 391, 404. 
 
 Nordheimer v. Grover, 37. 
 
 Norman v. Wmter, 4, 19. 
 
 Norris v. Irish Land Company, 461. 
 
 Norrish v. Richards, 98. 
 
 North v. Ingamalls, 728. 
 
 et al v. Wakefield, 720. 
 
 American Colonial Association 
 
 of Ireland v. Fielden, 631. 
 
Vlll 
 
 TABLE OP OASES CITED. 
 
 North British Railway Co. and Trows- 
 
 dale, In ro, 231, 
 Northern Ilail'y Co. v. Lister, 15, 16, 63. 
 Norton v. Fraser, 684. 
 
 V. Johnston, 103. 
 
 V. Mackintosh, 166. 
 
 V. Scholefield, 723, 725. 
 
 Norwood V. Pitt, 143. 
 Nosotti V. Hudson, 330. 
 
 V. Pa!j;o, 17, 721. 
 
 Notman et al v. Anchor Assurance Co., 
 
 206, 318. 
 Noy V. Reynolds, 250. 
 Nugent V. Phillips, 551. 
 Nunn T. Curtis, I'll. 
 
 V. Gossen, 634. 
 
 V. Roger, 666, 068. 
 
 Nutt V. Rush, 156. 
 Nylander v. Barnes, 632. 
 
 Oalces et nl v. Wood, 133. 
 O'Bierne v. Gowin, 633. 
 O'Brien v. Brodie, 357. 
 
 V. Chadwick, 285. 
 
 V. Clement, 119, 122, 140,725, 
 
 730. 
 
 • V. Dwyer, 633. 
 
 — V. Ilaraliy, 161. 
 
 — V. Taggart, 157. 
 
 — V. Welsh, 608. 
 
 O'Connor v. Balfe, 249. 
 Odill V. Tyrell, 88. 
 O'Donnell v. Reilly, 157. 
 O'Driscoll V. Macartney, 228. 
 O'Dougherty v. Fretwell, 218. 
 Ogle V. Moffatt, 325. 
 U' Grady v. Munro, 631. 
 
 V. O'Connell, 633. 
 
 O'Keefe v. Dennehy, 559. 
 
 V. O'Connell, 245. 
 
 O'Laughlin v. Eyre, 634. 
 
 Oldham et nl v. Burrell, 666. 
 
 O'Leary v. Hopper, 157. 
 
 and School Trustees of the 
 
 Township of Blandford, In re, 467. 
 Oliphant v. McGinn, 343. 
 Oliva V. Johnson, 631. 
 Olive, The, 403. 
 Oliver v. Collings, 236. 
 
 V. Woodruff, 636, 637, 638. 
 
 Oliverson et al v. Latour, 411, 655. 
 
 O'Neil v. Barnhart, 324. 
 
 O'Neill V. Everett, 687. 
 
 -^— V. The Trustees of the Limerick 
 
 Butter Market, 105. 
 et al V. Leight, 292. 
 
 Onslow V. Booth, 75, 81. 
 V. Home, 96. 
 
 Orchard t. Glover, 662. 
 
 V. Mosey, 51, 72, 145. 
 
 Ord V. Fenwick, 84. 
 
 O'Reily qui tarn v. Allan, 387. 
 
 V. Bond, 106. 
 
 V. Moodie, 727. 
 
 V. Vanevery et al, 633. 
 
 Orgill V. Kemshead, 140. 
 
 Orr v. Stabbnck, 284. 
 
 Orstr V. Stickler, 204. 
 
 V. Vernon, 512. 
 
 Orton V. Butler, 85. 
 
 Oppenheim v. Harrison, 5.'. 
 
 Osborn v. London Dock Co. 259, 264, 
 266, 267. 
 
 V. Tatum, 682. 
 
 et al v. Thompson, 205. 
 
 O'Shaughnessy v. Lambert et al, 106. 
 
 v. The West of Eng- 
 land Insurance Co. 107. 
 
 Oswald v. Earl Grey, 693. 
 
 V. Rykert et al, 352. 
 
 Othir V. Calvert, 143. 
 O'Toolc V. Browne, 528. 
 
 et al v. Pott, 224, 694. 
 
 Ottiwell V. D'Aeth, 111. 
 Ouchterlony v. Gibson, 179, 180. 
 Oulton v. Perry, 493. 
 
 Owen V. Challis, 716. 
 v. Curzon, 193. 
 
 ■v. Knight, 724. 
 
 ■et al v. Nickson, 261, 276. 
 
 Oxford, Worcester <fe Wolverhampton 
 R. Co^ v. Scudaraore, 279. 
 
 Oxlade v. The North Eastern R. Co. 
 259, 268. 
 
 Pacific Steam Navigation Co. v. Lewis, 
 
 71, 310, 311, 314. 
 Pndflock v. Forrester et al, 144. 
 Pad\.-ick V. Turner, 102, 106. 
 Page, In re, 680. 
 
 V. Pearce, 429, 433. 
 
 V. South, 64. 
 
 Paget V. Thompson, 61. 
 Pain V. Breston, 3()6. 
 
 V. Terry, 647. 
 
 Pallister v. Pallister, 675. 
 Palmer v. Beale et al, 70. 
 
 V. Cohen, 193. 
 
 V. Di.von, 622 
 
 V. Johnson, 202. 
 
 V. Lord Ashbrooko, 631. 
 
 V. Reiffenstein, 121. 
 
 V. Richards, 146. 
 
 V. Rodgers, 82. 
 
 ^— — V. The Justice Assurance Co. 
 51, 448, 
 
TABLE OP OASES CITED. 
 
 lis 
 
 :o. 259, 264, 
 
 Co. V. Lewis, 
 
 Palmer v. Trower, 302. 
 
 V. Wadbrooke, 140, 
 
 Panton v. llnll, 411. 
 PapiHon v. Vo'ce, 405. 
 Parberry v. Newnliam, 247. 
 Pardee v. Terrctt, 679. 
 Paris V. Salkcld, 117. 
 Parke v. Anderson, 690. 
 
 et al V. Davia et al, 727. 
 
 Parker v. Baylev, 52. 
 
 V. Cathcart, 335. 
 
 V. Rile}-, 131, 160. 
 
 et al V. Roberts, 342. 
 
 V. Serle, 420. 
 
 Parkes v. JIaybee, 131. 
 
 V. Smith, iJ32. 
 
 Parkin v. Scott, 233. 
 Parkins V. Petit, 411. 
 Parks V. Edge, 74, SOS, 313. 
 Parmiter v. Coupland et al, 725. 
 Parr v. Jewell, 132. 
 : Parrntt v. Goddard et al, 129. 158. 
 Parrett Navigation Co. v. Slower et 
 
 al, 624. 
 Parry v. Fairhurst et al, 71, 73, 310. 
 Parsons v. Alexander, 315, 316, 340. 
 
 V. Ferriby, 508, 512. 
 
 Partridge v. Fra-ser et al, 639. 
 
 V. Gardner, 83, 136, 145. 
 
 V. Salter, 330. 
 
 V. Wellbank, 49. 
 
 Pascall V. Ilorsley, 117, 731. 
 Passenger v. Brooks, 125, 714. 
 Passniore v. Smith, 510. 
 Patent Type Foundry Co. v. Lloyd, 274. 
 
 V.Walter, 274. 
 
 Pater V. Baker, 309, 310. 
 Paterson v. Morrison, 280. 
 
 v. Todd, 360, 370, 3^1. 
 
 I'atterson, In re, 16. 
 
 V. Atti ill et al, 635. 
 
 V. Ilabbershaw, 14, 
 
 V. Hall, 346, 347. 
 
 T. Harris, 129. 
 
 v. McGregor, 131. 
 
 v. Miller, In re, 618. 
 
 V. Reardon, 567. 
 
 V. Smith, 105, 108. 
 
 and the Corporation of Grey, 
 
 678. 
 Patton V. Evans, 568. 
 
 v. Provincial Insurance Co., 92. 
 
 V. Williams, 433. 
 
 Paul V. Cleaver, 636. 
 
 V. Dodd et al, 85. 
 
 Pawnell v. King, 218. 
 
 Pawson et al v. Ilall et al, 681. 
 
 ■ et ftl V. Wightman, 657. 
 
 Paxton et al v. Popliam et al, 827, 
 V, The Great North of England 
 
 
 Railway Co., 226. 
 Payne v. Acton et al, 423. 
 
 V. Deakle, 240. 
 
 V. Drewe, 356. 
 
 V. Hales, 713, 716. 
 
 V. Massey, 225. 
 
 V. Shenstone, 117. 
 
 Peacock v. Bell et al, 100. 
 
 V. Nichols, 120. 
 
 V. The Queen, 446, '704. 
 
 Pead v. Pegg, 324. 
 
 Pearce v. Preston, 316, 319. 
 Pearso et al v. Cooker, 567. 
 
 v. Robins, 175. 
 
 Pearson v. Coles, 292. 
 
 V. Overcll, 228. 
 
 V. Reynolds, 112. 
 
 et al V. Turner, 265. 
 
 Peablcs at al v. Lottridge et al, 520. 
 Peerslow v. Baily, 223. 
 Peck V. Buck, 345. 
 
 V. Nolan, 266, 
 
 V. Reves, 264. 
 
 Peddie v. Moore, 426. 
 
 V. Pratt, 284. 
 
 Pegg V. Metcalf, 364,. 365, 366. 
 Pegler V. Hislop, 31, 32. 
 Peirce v. Derrv, 650. 
 Pell V. Addison, 209. 
 
 V. LinncU et al, 325. 
 
 Pellatt V. Markwell, 210. 
 
 V. Markwich, 209, 
 
 Pembrey v. Jones, 702. 
 
 Penarth Harbour, Dock and R. Co. v. 
 
 Cardiff Warterworks Co. 94, 275. 
 Penhallow et al v. The Mersey Dock 
 
 Harbour Co., 109. 
 Penlington v. Brownlee, 507, 512. 
 Penn v. Ward, 133. 
 Pennnll et al v. Clarke, 137. 
 Pennell v. Churchwardens of Uxbridge, 
 
 446. 
 V. Uxbridge Churchwardens, 
 
 704. 
 
 et al V. Walker, 232. 
 
 Penniraan v. Wince, 327, 330. 
 Pennington v. Cardale, 318, 319. 
 Penny v. Harvey, 97. 
 
 v. Thomas, 20. 
 
 Penoyer v. Brace, 4U8. 
 Penson's Bail, 665. 
 Pentland v. Carroll, 632. 
 
 V. Heath, 610, 611. 
 
 Penton v. The G. T. Railway Co., 611. 
 Pepper v. Whalley, 9. 
 Peppers v. Chambers, 259, 260. 
 

 TABLE OF CASES CITED. 
 
 m 'k 
 
 
 Pc'ppiatt et ux. v. Smith, 265, 206. 
 Percival v. Conncll, 03. 
 
 et nl V. Frnmpton, 719. 
 
 Perez ct nl v. Olengn et al, 172, 
 Pering & Ileymer, In re, 244. 
 Perkins v. Connolly, 354. 
 
 V. Tlio National Assurance A, 
 
 Investment Association, l.S. 
 
 Perley v. Loney et al, 173, 176. 
 Perriman v. Stegsjall, 219. 
 Perrin v. Bowes, 853. 
 
 V. The Monmouthshire Railway 
 
 and Canal Co. 120, 122, 
 
 Perring v. Kymer, (i82. 
 Perrot v. Morris, 276. 
 Perry v. Grover, 818. 
 
 V. Lawless, 64, 299. 
 
 V. Alaloney, 032. 
 
 V. Patchett. 11, 12, 199. 
 
 V. Turner et al, 549, 651. 
 
 V. Watts. 314. 
 
 Perry's Bail, 662, 663. 
 Peshall V. Langton, 388. 
 Pessenaux v. Ilench, 633, 
 Petch et al v. Duggan, 82. 
 Peters v. Wallace, 337. 
 
 V. White, 178, 179. 
 
 Peterson et al v. Davis, 251. 
 Petit V. Ambrose; 18. 
 Petrie et al v. Ilannay, 84. 
 
 V. Tannahill, 316, 319, 
 
 V. Taylor, 335. 
 
 Pettigrew v. Doyle, 512. 
 Pewtress et al v. Annan, 447. 
 Peyton et al v. Wood, 20. 
 
 Phelps V. Prothcro et .il, 95, 173, 175. 
 Philipson v. Earl of Egremont, 412. 
 Phillips V. Basford, 679. 
 V. Birch, 356, 053. 
 
 et al V. Claggett, 71, 79, 140, 
 
 141, 405. 
 
 -^^ — V. Dame, 330. 
 
 V. Doelittle, 559, 
 
 V. Emens, 204. 
 
 V. Evans, 225, 226. 
 
 V. Gibbs, 638. 
 
 V. Harris, 278, 279. 
 
 V. Hay ward, 120. 
 
 et al V, Hath et al, 471. 
 
 V. Hutchinson et al, 82, 
 
 et al V. Im Thurn, 718. 
 
 — V. Jones, 90. 
 
 v. Merritt, 282, 703. 
 
 V. Smith, 316. 
 
 V. Stone, 178. 
 
 V. Warren, 649, 
 
 et al V. Winters, 523. 
 
 Pliilliskirk et ux v. Pluckwell, 87. 
 
 Philip, In re, 678. 
 Philpot V. Manuel,. 378. 
 Philpotts V. Harrison, 512. 
 Phipps v. Ingram, 221, 247. 
 Pliythian v. White et ol, 128, 144,711. 
 
 V. Whyto et al, 72!), 
 
 Pickardo v. Macliado, 47. 
 Pickering et al v. Ilfracombe Railway 
 Co., 396. 
 
 V. Noyes, 273. 
 
 Pickman v. Pollis, 10, 11, 53, 
 
 V. Robson, C55, 
 
 Pickwood V. Neate, 471. 
 
 V. Wright, 101. 
 
 Pidding v. How, 469. 
 Pierce v. Blake, 156. 
 V. Derrj', 549. 
 
 V. Evans, 717. 
 
 V. Street, 98. 
 
 Pierpont v. Brewer, 361, 605. 
 Pigeon V. Bruce et al, 18. 
 Piggott V. Kemp, 647. 
 
 V. Killick, 639. 
 
 Pike V. Carter, 205. 
 Pilbrow V. Pilbrow, 27. 
 
 V. Pilbrow's Atmospheric Rail- 
 way Co. 4. 
 
 Pilgrim v. Tiie Southampton and Dor- 
 chester Railway Co. 278, 702, 703. 
 
 Pilmore v. Hood, 682. 
 
 Pirn v. Eastern Counties R. Co. 293, 
 
 Pinhorn v. Souster, 89, 107. 
 
 Pinkus V, Sturchetnl, 188,189,327,329 
 
 Pistrucci v, Turner, 335, 
 
 Pitcher v. King, 688- 
 
 Place V. Potts et al, 103, 100, 102. 
 
 Piatt et al v. Else et al, 138. 
 
 V. Green, 702. 
 
 V. The Gore District Mutual Fire 
 
 Insurance Co. 292. 
 
 Plaxton V. Smitli et al, 3. 
 
 Plevier v. Henshall ct al, 179, 653. 
 
 Plews V. Middleton, In re, 219. 
 
 Plock V. Pacheo, 49. 
 
 Plummer v. Hedge, 115. 
 
 Pocklington v. Peck, 78, 421, 
 
 Pocock V. Pickering et al, 51, 300, 0C3. 
 
 Poensgen et al v. Chanter et al, 635. 
 
 Pohl V. Young, 263. 
 
 Ponton V, Daly, 567. 
 
 V, Moodie, 318. 
 
 Poole v. Broadfield, 421, 
 
 V, Grantham, 136, 427. 
 
 V. Gould, 19. 
 
 V. Hobbs, 638. 
 
 V. Pain et al, 133, 644. 
 
 V. Palmer, 278. 
 
 V. Pembry et ux. 75, 78, 82, 678. 
 
TABLE OF CASES CirED. 
 
 ki 
 
 144, 711. 
 Railway 
 
 leric Rail- 
 
 and Dor- 
 
 ,702, TO?.. 
 
 :o. 293. 
 ;9,227,329 
 
 , 102. 
 
 ;itual Fire 
 
 ). 653. 
 L9. 
 
 , 800, C33. 
 al, 635. 
 
 h 
 
 ■8, 82, 678. 
 
 Toolo V. Turn1)ri(1(,'C, 719. 
 
 ■_ et al V. Warren, 299. 
 
 Poolcy V. Harradino, 173. 
 Pope V. Fleinin;^, 325. 
 
 V. Lord Duneannon, 247. 
 
 V. Maer, 64, 112, 651. 
 
 V. Kfilly, 609. 
 
 I'opjoy's Bail, 664. 
 ro{)ki"ns V. Smith, 49. 
 Topic ct al V. Wyatt. 661. 
 ror(lai,'e v. Carter, 634. 
 Postan V. Stanwny, 144. 
 Pothomcr v. De Mallo, 184. 
 Pott et al V. Hirst, 634. 
 Potter V. Marsden, 661, 676. 
 
 V. Newrrran, 215. 
 
 V. Nicholson, 638. 
 
 Potts V. Plunkett, 103. 
 
 V. Sparrow, 718. 
 
 Pouchee v. Lieven, 661, 676. 
 Poulton V. Dalmago, 1 14. 
 Pound V. Wilson, 803. 
 
 Poussett and tlie Corporation of the 
 
 County of Lambton, In re, 463. 
 Powell V. Ansell, 375. 
 
 s. Bradbury et al, 133, 275. 
 
 V. Duncan, 118. 
 
 V. Ford, 3(11. 
 
 V. Gott, 423, 424. 
 
 V. James, 326. 
 
 V. Lay ton, 125. 
 
 V. Norris, 836. 
 
 V. Reynolds, 633. 
 
 Power et al v. Butcher, 716. 
 
 V. Fry, 622. 
 
 V. Kenny, 393. 
 
 Powloy et al v. Newton, 84. 
 Pownall V. King, 244. 
 Pozzi V. Shipton et al, 71. 
 Pratt V. Hawkins, 28. 
 Pray et al v. Edie, 631. 
 
 Preedy v. Macfarlane, 424. ^— 
 
 Prentice v. Hamilton, 29. 
 Prescott V. Flinn et al, 304. 
 President, Directors and Company of 
 
 the Gore Bank v. Gunn, 354. 
 Preston v. Peeke, 85. 
 
 V. Preston, 411. 
 
 Price, In re, 256. 
 
 V. Carter et al, 636, 638. 
 
 V. Duggan, 647. 
 
 V. Harris et al, 419. 
 
 V. Harrison, 275, 276. 
 
 V. Hayman, 682. 
 
 V. Hewitt, 135. 
 
 V. Jones, 226. 
 
 V. Morgan, 199, 493, 
 
 — — V. Price, 164. 
 
 Price ot al v. Qnarrcll et al, 205, 206. 
 
 V. Rces, 150. 
 
 V, Seelev, 682. 
 
 et al V. Thomas, 18, 684. 
 
 Price's Patent Candle Co. v. Bauwen's 
 
 Patent Candle Co. 475. 
 Prince Albert v. Strange et al, 470, 
 
 472. 
 
 V. Moore, 606. 
 
 et al V. Nicholson, 82, 117, 118. 
 
 Prindle v. McCan et al, 163. 
 Priiigle V. Isaac, 3o5. 
 
 Prior V. Perry, 209. 
 Pritchard V. Leech, 261, 
 
 . V. Smart, 277. 
 
 Pritehett v. Smart, 275. 
 Proctor V. Lainson, 271. 
 
 V. Sargent, 95. 
 
 V. Young, 58, 70, 677. 
 
 Proprietors of the Rochdale Canal Co. 
 
 V. Radcliffe, 128. 
 
 Prosser v. Creddy, 108, 
 
 Prothero v. Phelps, 173, 180. 
 
 Proudfoot V. Iloldcn, 649. 
 
 V. Trotter et al, 221, 227. 
 
 Prowse V. Loxdale, 632. 
 
 Provident Permanent Building and In- 
 vestment Soc. V. McPherson, 282. 
 
 Provincial Bank v. Costelloe, 295. 
 
 Insurance Co, v. Shaw, 27. 
 
 Prudhomme v. Fraser, 144, 711. 
 
 Pryme v. Carroll, 200. 
 
 Pryor v. Local Board Health West 
 Ham 318. 
 
 et al v. Swaine, 637. 
 
 Pugh v. Kerr, 312, 438. 
 
 v. Robert, 729. 
 
 Pujolas v. Holland, 296. 
 Pullen V. Seaven, 313. 
 
 V. Seymour, 308, 313. 
 
 Purcell V. Welsh, 139. 
 
 Pnrdy v. Rowlands, 677. nii ■ 
 
 Pure'd. Withers et al v. Sturdy, 560, 
 
 Pnrnell v. Young, 729. 
 
 Purslow v. Bailey, 224. 
 
 Pusey v. Pusey, 405. 
 
 Putney v. Swann, 114. 
 
 Pye v, Butterfield et al, 265, 267, 277. 
 
 Pylie v. Stephen, 154, 529. 
 
 Pym v. Campion et al, 140, 145, 713. 
 
 Pytris v. Milford, 429. 
 
 Quamngton v. Arthur, 136. 
 Quebec Bank v. Gray, 132, 602. 
 Queen, The, v. Adams et al, 529. 
 
 v. Benson, 395, 515. 
 
 V. Hemsworth, 224. 
 
 V. Hunter, 65. 
 
My) 
 
 Wf 
 
 Ixii 
 
 TABLE OF OASES CITED. 
 
 Queen, The, v. Mayor of Exeter, Dip- 
 stoko's Case, 37. 
 
 , Wes- 
 
 V. 
 
 combe's Case, 81. 
 
 — V. McLellon. 291. 
 
 — V. School Trustees of 
 
 Tyen- 
 
 dcnngn, 466. 
 
 — V, Slupman, 7, 106. 
 
 — V. Simpson, 224, 692. 
 
 — V. The Inhabitants of Upton 
 St, Leonard's, 262. 
 
 V. Whalen, 634. 
 
 Queen's Case, 805, 806. 
 
 Quin V. Ratcliff, 261. 
 
 V. School Trustees, 85. 
 
 Rabidon v. HarWn, 649. 
 Radditt'o v. Hall, 702. 
 Radenhurst, Ex parte, 615. 
 Radford v. Smith, 331. 
 Ragg et ux. v. Wells et nx. 143. 
 Railtes et al v. Todd, 713. 
 Rainsfoi-d v. Campbell, 268. 
 
 i V. Hamer, 324. 
 
 Raleigh et al v. Atkinson, 471. 
 Ramme v. Duncombe, 112, 676, 677. 
 Ramsdcn v. Gray et al, 97,708. 
 Randall, Ex parte, 682. 
 
 T. Gurney, 223. 
 
 V. Wall, 177. 
 
 Randell v. Bailey, 327. 
 Randigger v. Holmes et al, 232. 
 Raner et al v. Ritson, 276. 
 Ranger v. G. W. Railway Co., 262, 266. 
 Rankin v. The G.W. Railway Co., 507. 
 Ransford v. Copeland, 718. 
 Raphael et al v. Goodman, 888. 
 Rastall V. The Attorney-General, 564. 
 Ratcliflfe v. Bleasby, 275. 
 Rattray v. McDonald et el, 131. 
 
 Rawes v. Knight, 52. 
 
 Rawlinson et al r. Gunston, S78. 
 
 Rawson v. Moss, 20. 
 
 Rawsthorn v. Arnold, 231, 693. 
 
 Ray V. Sharp, 238, 239, 241, 326. 
 
 Rayn«r et al v. Allhusen, 260, 276. 
 
 — et al V. Fussey, 173. 
 
 Reach et al v. Hall, 283. 
 
 Read v. Dunsmore, 310. 
 
 V. Johnston, 112. 
 
 et al V. Scovill et al, 38, 668. 
 
 V. Lee, 61. 
 
 Reade v. De Monmorency, 568. 
 
 V. Lamb, 713. 
 
 Reaume et al v. Guichard, 370. 
 
 Reay, In re, 800. 
 
 Reeves v. Myers, 649, 
 
 Redhead t. Weltoa, 896. 
 
 Redit V. Lucock, 324. 
 Redmayne v. Moore, 422. 
 Redmond v. Mooney, 631. 
 Red way v. Sweeting, 167. 
 
 V. Webber et al, 77. 
 
 Rcece v. Chaffers, 209, 
 Reed v. King, 304. 
 Rees V. Dick, 114. 
 
 d. Powell V. King et al, 665. 
 
 d. Stepney v. Thrustout, 561. 
 
 Reeve, In re, 569. 
 Reeves v. Eppea, 288. 
 
 v. Myers, 76. 
 
 Regan v. The Bagnalstown and Wex- 
 ford R. Co. 167, 
 Regil V. Green, 131. 
 Regina v. Ackroyd et al, 208. 
 
 v. Ambergate, Ac. R. Co. 259. 
 
 v. Anderson, 683. 
 
 V. Balby & Worksop Turnpike 
 
 Road, 461. 
 
 V. Baldwin, 463. 
 
 V. Banks, 465. 
 
 . V. Benson, 389. 
 
 V. Bourdon, 298. 
 
 V. Bridgman, 467. 
 
 V. Bristol and Exeter Railway 
 
 Co. 462, 467. 
 
 V. Brown, 71, 681. 
 
 V. Burgess, 386. 
 
 V. Caledonian R. Co. 464. 
 
 V. Cliristian, 808. 
 
 V. Chubbs, 335. 
 
 V. Church Trustees of St. Pan- 
 eras, 464. 
 
 V. Commissioners of the Thames 
 
 and Isis Navigation, 463. 
 
 V. Conners, 296. 
 
 V. Conyer et al, 468. 
 
 V. Cooke, 308. 
 
 V. Crofts, 298. 
 
 V. Davidson, 360. 
 
 v. Derbyshire, Ac. R. Co. 818. 
 
 v. Deplock, 134, 136. 
 
 V. District Council of District 
 
 of Gore, 466. 
 
 V. East Anglian, 463. 
 
 V. West India Dock & Birming- 
 ham Junction R. Co. 464. 
 
 V. Eastern Counties R. Co. 467. 
 
 V. Fall et al, 818. 
 
 V. Fick, 335. 
 
 V. Frost, 462. 
 
 V. Garbett, 297. 
 
 V. Gomperti et al, 884. 
 
 V. Governors of the Darlington 
 
 Free Grammar School, 462. 
 
 V. Great Western R. Co. 467. 
 
TABLE OF CASES CITKD. 
 
 XIU 
 
 J. 
 
 1. 
 
 7. 
 I, T7. 
 
 et al, 665. 
 istout, 5C1. 
 
 >wn and Wex> 
 
 ,1, 298. 
 
 fee. R. Co. 259. 
 
 3. 
 
 pksop Turnpike 
 
 67. 
 
 Exeter Railway ; 
 
 181. 
 
 i. Co. 464. 
 8. 
 
 tees of St. Pan- 
 
 rs of the Thames 
 i, 463. 
 
 468. 
 
 JO. 
 
 •fee. R. Co. 318. 
 
 [, 186. 
 
 ncil of District 
 
 ,463. 
 )ock & Birming- 
 
 lo. 464. 
 
 aties R. Co. 467. 
 
 .8. 
 
 al, 884. 
 
 f the Darlington 
 hool, 462. 
 srn R. Co. 467. 
 
 Regina v. Hamilton, 296, 384. 
 
 V. Hiirrison et al, 467. 
 
 V. Ik-msworth, 223, 386, 
 
 V. llowins, 808. 
 
 V. Hopkins et al, 462. 
 
 V. Hull and Selby R. Co. 467. 
 
 V. In<;liam, 463. 
 
 V. Jnrvis, 380, 384, 886, 675, 
 
 676. 
 
 V. Johnson, 692, 
 
 V. Justices of Middlesex, 704. 
 
 V. Justices of Shropshire, 446, 
 
 489, 70.3. 
 
 . V. Justices of Surrey, 463. 
 
 V. Justices of Worcester, 462, 
 
 Kidwelly and Llan welly 
 
 489. 
 
 — V. 
 Cnual ntiil Tramroad Co. 464. 
 
 V. Leilynrd et al, 463, 404, 465, 
 
 — V. Leeds and Liverpool Canal 
 Co, 467. 
 
 V. Lenff et al, 298. 
 
 V. Levi etal, 298. 
 
 — V. London and North Western 
 Co. 467. 
 V. Lords Commissioners of the 
 
 1 
 
 Treasury, 467, 
 
 — V. Lord Mayor and Aldermen 
 of the City of London, 464, 
 
 — V. Macarthy, 291, 
 
 — V. Mayor, <tc. of Hereford, 464, 
 
 — V. Mcilroy, 335. 
 
 — V. Mizen. 681, 
 
 — V. Moodie, 384, 
 
 — V. Murray, 257, 
 
 V. Newton, 308, 
 
 V. Parr, 290, 
 
 V, Parsons, 298, 
 
 V. Pitt, 467, 
 
 — V. Rector and Churchwardens 
 of Birmingham, 467. 
 
 V, Reeve, 679, 
 
 — V. Sadlers' Co, 96, 156, 157, 
 
 — V. Savage et al, 291. 
 
 — V. Scale, 1, 134, 
 
 — V. School Trustees of Tj'en- 
 denaga, 465, 467, 
 
 — V. Select Vestrymen of St. Mar- 
 garet's, Leicester, Vestry, 467. 
 
 — V, Sheriff of Hastings, 36, 661. 
 
 — V, of Leicester8hire,886. 
 
 — V. of Middlesex, 662, 
 
 — V, of Perth, 660. 
 
 — V. Simpson, 234. 
 
 — V, Sinnott, 134, 
 
 V. St. John's College, 467. 
 V, Stonnel, 298. 
 V. Tait, 291. 
 
 Regina v. Tlie York <t North Midland 
 
 R, Co. J.V.t. 
 
 V. Tithe Comniiffiioners, 464, 
 
 V, Townsend, 467, 
 
 ■ V, Trustees and Manns^ers of 
 
 Norwich Savings Bank, 467. 
 
 V. Weston, 380. 
 
 V, Whitehead, 297, 
 
 V. Whitinarsh, 462, 
 
 Reid V, Cleal, 632, 
 
 V, Coleman, 276. 
 
 et al V, Drake, 335, 
 
 V, Fryatt, 240, 
 
 V, Iloskins, 336, 
 
 V, Mangan, 105, 
 
 V. Reid, 140, 239, 
 
 Reis et al v. The Scottish Equitable 
 
 Assurance Co, 180, 184, 
 Remington v. Taylor, 712. 
 Rendell v. Bailey, 830, 
 
 et al V, Malleson, 121, 
 
 Rennio et al v, Beresford et al, 150, 
 
 — V, Gorton, 423, 
 
 Reordan v, Sullivan, 293, 
 
 Rish worth v, Dawes, 312, 
 
 Revell V, Wetherell, 426. 
 
 Rew y, Hutchins et al, 263, 
 
 Rex V. Archbishopof Canterbury, 466 
 
 V. Archbishop of York et al, 96, 
 
 V, Bailiffs <fe Corporation of Eye, 
 
 467. 
 
 V. Bardell et al, 246, 
 
 V, Barker et al, 467, 
 
 • V, Bishop of Chester etal,131,460 
 
 V, Bishop of Ely, 467, 
 
 y. Bishop of Gloucester, 467, 
 
 y, Brecknock and Abergayenny 
 
 Canal Navigation Co, 467, 
 
 y, Burbage, 256, 
 
 y, Cator, 301, 
 
 y, Cheere, 467, 
 
 q, t, V, Clifton, 672, 
 
 V, Cohen, 188, 
 
 V, Coleridge, 467, 
 
 V, Collier, 672, 
 
 V, Commissioners of the Llandio 
 
 District of Roads in Carmarthen- 
 shire, 467, 
 
 y. Crisp et al, 672, 
 
 V, Dayrell et al, 467. 
 
 V, Directors of Blackwell R, Co, 
 
 467, 
 
 V, Directors of Bristol Dock Co, 
 
 467, 
 
 V. Duke of Richmond, 81, 
 
 V. Eastern Counties R. Co. 467. 
 
 V. Edwards, 886. 
 
 V. EUicombe, 281. 
 

 Iziv 
 
 TABLE OF CASES CITED. 
 
 I 1 
 
 
 W I 
 
 Rex V. Ford ot al. 462. 
 
 V. Francis, 429. 
 
 V. FrnHur, 6, 694. 
 
 V. (Jrc'un otul, 467. 
 
 V. Hales, 646. 
 
 V. Hare et nl, 27. 
 
 V. Hentlicote, 467. 
 
 V. llihiitch et al, 296. 
 
 V. Hughes, 467. 
 
 V. Hunter, 291. 
 
 V. Johnson, 711. 
 
 V. Justices of the County of Car- 
 narvon, 679. 
 
 V. Justices of Lancnshlrc, 467. 
 
 V. Justices of btaftbrdsliirc, 467. 
 
 V. Justices of West lUdiiig of 
 
 Yorlishire, 467. 
 
 — — V. I.ammaa, 179. 
 
 V. Layer, 257. 
 
 V. Lord Montacute ot al, 467. 
 
 V. Margate Pier Co, 462. 
 
 V. Mayor of Abindon, 464. 
 
 V. and Aldermen of Lon- 
 
 Corporation of 
 
 
 don, 467. 
 
 V. and 
 
 Fowcy, 465. 
 
 Stafford, 462. 
 
 V. of West Looe, 462. 
 
 V. Miles, 421. 
 
 V. Ministers and Churchwardens 
 
 of Stoke Damerel, 467. 
 V. Municipal Council of Bruce, 
 
 467. 
 
 V. Nash, 292. 
 
 V. Nottingham Old Water Works 
 
 Co. 467. 
 
 V Oldroyd, 304. 
 
 V. Palmer, 291. 
 
 V. Peckham et al, 386. 
 
 V. Pilgrim, 266. 
 
 — ^ ex rel Reynolds v. Bridgor, 297. 
 
 V. Roddara, 267. 
 
 V. Rodden, 256. 
 
 V. Rudge, 24. 
 
 V. Ruttan, 885. 
 
 V. Sheriflf of Essex, 662, 668. 
 
 — of London, 385. 
 
 — of Middlesex, 385, 661, 
 666, 676. 
 
 V. of Niagara, 334, 385, 
 
 676. 
 
 V. of Surrey, 667, 676. 
 
 V. Sherwood, 384, 
 
 V. Shillibeer, 246. 
 
 V. South Eastern R. Co. 467. 
 
 V. Southerton, 617. 
 
 V. SpalTord et al, 466. 
 
 V. 
 V. 
 
 Rex V. The Burgesses of Carmaer- 
 tlien. 64. -5. 
 
 — — V. The Linndio District of Roads 
 in Caerniartiiensliire, 467. 
 
 V. Tlie Roclidalo Co. 49.'{. 
 
 V. Treasurer and Directors of St. 
 
 Kathorine's Dock Co. 4G7. 
 
 V Trustt'i'fl of Ealby and Work- 
 sop Turnpike Roud, 406. 
 
 V. Turner, 392. 
 
 V. Wilson et al, 666, 668. 
 
 V. Windham, 467. 
 
 V. Wooliett, 166. 
 
 V. Yates, 291. 
 
 Reynell v. Spry, 262. 
 
 Reynolds v. Askin, 225, 230. 
 
 V. Burkhart, 224, 22.'5. 
 
 V. Clarke, 85. 
 
 V. Gray, 238. 
 
 V. Harris, 129, 144. 
 
 V. Hickman, 338. 
 
 V. Ivemey, 719. 
 
 V. Power, 107. 
 
 V. Sherwood, 684, 
 
 V. Waddell, 407. 
 
 Reynoldson v. Morton, 260. 
 
 Riiodes V. Bryant, 67. 
 
 V. Thomas et al, 329. 
 
 Riccard et al v. Blanuri et al, 260. 
 
 et al V. The InclosureCommis- 
 
 sioners, 2t)0, 277. 
 
 Rice V. Linstend, 637. 
 
 V. Shute et al, 70, 713. 
 
 Richards v. Beavis, 103, 160. 
 
 V. Bevis, 161. 
 
 V. Bluck, 126. 
 
 V. BonetoD, 726. 
 
 V. Cohen, 143. 
 
 V. Easte, 8, 100. 
 
 V. Frankum, 722. 
 
 V. Hamer, 330. 
 
 V. Ilawky, 27. 
 
 V. James, 116. 
 
 V. Morgan. 185. 
 
 et al V. Setree, 82. 
 
 V. Symond, 728. 
 
 Richardson v. Daniels et al, 109. 
 
 V. Greaves, 399. 
 
 V. Locklin, 100. 
 
 V. Mellish, 683, 534. 
 
 et al V. Nourse et al, 219, 
 
 m 
 
 W 
 
 225. 
 
 V. Phippen, 131. 
 
 Richley v. Ellis, 276. 
 
 V. Proone, 156. 
 
 Richmond et al v. Campbell, 419. 
 Rickards et ux. t. Midaleton, 327. 
 Ricketts, In re, 249. 
 
 ii«> 
 
TABLE OF CASES CITED. 
 
 Ixv 
 
 rvicketts V. Bnrmnn, S36. 
 
 ■ V. (luriR'V, -2:!, 
 
 et n\ V. Ni)l)U', ^.40, 428. 
 
 KiddcU V. Hrinr, MO, 518. 
 
 V. lirown, -itVJ. 
 
 Ili(I;;wny v. Hiuinon, 20. 
 
 V. Jorios, (W3. 
 
 V. Roberta, 472. 
 irnllcy V. Wilkins, (i«l. 
 llidoiit.. In re, tlld. 
 
 V. Harris. 507. 
 
 l[\v(\ V. Asliby ft nl, 427. 428. 
 
 i^rby ct al V. Duhliii Trunk Conncct- 
 iiiLj Uiiilwnv ('<>., 415. 
 
 -""v (}.W.' Hallway Co. ct al,4€9. 
 Kii^lit V. Wronjy. 5 hi. 
 lliluy V. Haxeiidau' ct al, B20. 
 "Un{? V. Ri)xl>rou:;h, 90, DO. 
 
 V. Such, 4:U. 
 lin-ian ct al v. Hall, !i80. 
 lint;landv. Lowdes, 210, 2S9. 
 Upland V, Watt?, 92. 
 lippon V. Dawson, 3. 
 lidchinuUer et ux. v. Uberhaust, 189, 
 
 310, 313. 
 litchey v. Toronto Honda Co., 471. 
 Utchio V. Prout, 718. 
 
 ■ ctnlv.v. ..■.., elder, 317, 321, 822. 
 
 littinjjcr V. McDougall, 396. 
 livis V Ilatton, 640, (535. 
 Uxon et al v. Emary et al, 168, 
 Uz/.i V. Folette, 327. 
 loach V. Potash et al, o42. 
 loakes v. Manser et al, 95, 163. 
 jlobcrts et al v. Bate ot al, 49. 
 — V.Brett, 95, 158. 
 
 V. Corporation City Toronto, 
 893. 
 
 V. Cuttill, 677. 
 
 V. Evans, 257. 
 
 et nl V. Fox et al, 677. 
 
 V. Ilasleton, 342. 
 V. ITmItiips, 291. 
 
 V. lit. s 62 9. 
 
 V. Snell, 7o, 809, 310. 
 
 V. Spurr, C,-2. 
 
 — V. Tayler al, 135, 163, 
 lOertson et al, Ii. u, 678, 686. 
 
 V. Barker, S87. 
 
 - V. Boulton, 281. 
 
 - et al V. Burk, 486. 
 
 — V. Cooley et nl, 730. 
 
 — V. Gantlett, 133. 
 
 — V. Mayers, 164. 
 
 — V. Ross, 484. 
 
 — V. Showier, 168, 
 V. Sterne, 212. 
 
 I Robins, £x parte, 467. 
 
 Robins V. Porter, 470. 
 
 V. Strong, 38. 
 
 Robin.son v. Hell, 71,73,318, 609. 
 
 — V Bycrs, 364. 
 
 V. F.lsain, 424. 
 
 V Gardner, 32, 
 
 V. Hawkins et nl, 12. 
 
 V. Hartnan, 123. 
 
 V. Kitchln, 277. 
 
 V. Marchant, 75. 
 
 V. MoGrnth, 111. 
 
 V. Messenger, 143. 
 
 V. Nesbett, 395. 
 
 V. Peace, 367. 
 
 V. Powell. 423. 
 
 V. Reynolds. 303. 
 
 V. Stiiith, 506. 
 
 V. Waddington, 490. 
 
 ll()b.sonv. Arbuthnot, 69, 284, 683. 
 
 V. Cooke ot nl, 264, 266. 
 
 V. Dodds, 234. 
 
 V. I>oyloetal,70,7l.72,77, 319 
 
 V. Lees, 213. 
 
 V. LuscomUe, 163. 
 
 V. Turnbull, 317, 
 
 Rock et al v. Adam, 19. 
 
 V. Leighton, 412. 
 
 Rochfort V. Sedley, 280. 
 Rochlean v. Bidwell; 316. 
 Rodgers et al v- Maw, 127. 
 
 et al V. Nowill ot nl, 470. 
 
 Rodway v. Lucas, 15, 62. 
 llodwell V. Chapman, 25. 
 
 Roe d. Blair et al v. Street ct al, 522. 
 
 V. Cock, 9. 
 
 V. Fuller, 140. 
 
 T. Quinlnn et al, 547. 
 
 V. Wardle, 574, 577. 
 
 d. West V. Dnvis, 559, 560. 
 
 V. Wiggs, 616. 
 
 d. Wood V. Doe, 227. 
 
 RofFoy V. Shoobridge, 199, 493. 
 Rogers v. Burke, 24. 
 
 — '■ V. Custnnce, 160, 281. 
 
 V. Hunt, 12, 16, 62. 
 
 ■ V. Jones, 665. 
 
 V. Mapleback, 667- 
 
 V. Reeves, 34, 
 
 V. Turner, 258, 261. 
 
 v, VttDdercom, 827- 
 
 Rolfe V. Burko, 682. 
 
 et al v. Cheetham, 669. 
 
 V. Paget, 62. 
 
 Roles V. Davis, 817. 
 
 V. Rosewell, 200. 
 
 Rolker et al v. Fuller, S, 694. 
 RoUeston v. Dixon, 717. 
 Rolph y, Peckham, 9, 
 
 B 
 
 

 Ixvi 
 
 TABLE OF CASES CITED. 
 
 
 B-l 
 
 Romily v. Tycroft,554, 566. 
 Roots V. Tarniscott et al, 625. 
 Roper V. Phillip9,680. 
 
 V. Sheasby et al, 424. 
 
 Roscorla v. Thomas, 108. 
 Rose V, Groves et al, 469, 725. 
 
 et al V. Cooke, 106, 424. 
 
 V. Macgregor, 286. 
 
 Ross et al v. Brookes et al, 37. 
 
 V. Clifton et al, 140, 731. 
 
 et al V. Cook, 478, 483. 
 
 V. Fraser, 678. 
 
 V, Gandell, 3. 
 
 V. Green, 97. 
 
 et al V Hamilton, 856. 
 
 V. HUl, 91. 
 
 V. Jacques, 632. 
 
 et al V. Johnstone et al, 68, 619. 
 
 et al V. McMartin, 373. 
 
 et al V. Napier, lp6, 
 
 V. Pope, 178. 
 
 V, Robeson, 165, 166. 
 
 V. Ross, 244. 
 
 & Ross, In re, 244. 
 
 et al V. Tait, 85. 
 
 et al V. Webster, 85. 
 
 Rosse et al v. Cummings, 130, 141, 146. 
 
 V. Dolson, 158. 
 
 Rosset V. Hartley, 659. 
 Round V. Hatton, 222. 
 Routh V. Webster, 470, 472. 
 Routledgo V. Abbott et al, 128, 144. 
 
 V. Giles, 651. 
 
 Rowand v. Tyler, 316. 
 
 Rowberry v. Morgan, 61, 68, 442,446, 
 
 703, 704, 7C7. 
 Rowbotham v. Duprae, 64, 141. 
 Rowe et al v. Ames, 723, 727. 
 
 V. Brenton, 295. 
 
 V. Colton, 236. 
 
 et al V. Howden, 276. 
 
 V. Rhodes, 422. 
 
 Rowland v. Blaksley, 17, 721, 
 
 V. Dakeyne et al, 12. 
 
 Roy T. Bristow, 97, 708, 709. 
 
 V. Champneys, 206. 
 
 Royal British Bank v. Turquand, 720. 
 
 Canadian Bank v. Brown, 300. 
 
 Royers v. Hunt, 56. 
 Rucklcy V. Kiernan, 157. 
 Rudnll V. Hurd et al, 658. 
 Ruddick v. Simmons, 347. 
 Ruiger v. Blake, 469. 
 Rumbelow v. Whalley, 124, 623. 
 Rumsey v. Webb et ux, 725. 
 Rundle v. Dittle et al, 730, 
 Rusden v. Pope, 169. 
 Rush V. Kennedy, 70, 
 
 Rushworth v, Wilson, 702. 
 Russel et ux v. Corne, 88 
 V. Hill, 323. 
 
 V. Viscount Sada Bandeira, 716. 
 
 Russell V. Atkinson, 424. 
 
 et al V Bell et al, 721. 
 
 V. Knowles, 19, 20. 
 
 V. Lidsam et al, 470. 
 
 V. Lone, 18, 62. 
 
 V. Pellerini, 233. 
 
 V. Shenton, 161, 461, 469. 
 
 Russen v. Hay ward, 217. 
 Rust V. Chine, 63. 
 
 V. Kennedy, 9. 
 
 V. Nottidge, 9.5. 
 
 Ruston V. Hatfield, 675. 
 Rutherford v. Mein, 49. 
 Ruthven v. Rutliven, 240. 
 Rutk'dge V. Tiiompson, 70, 284, 
 Ruttan V. Ashford, 23. 
 
 V. Levisconte, 252, 2h'). 
 
 Rutter V. Chapman, 277, 278, ^^40. 
 Rutty V. Arbur, 677- 
 Ryalls V, Bramall et al, 90. 
 Ryan v. Clark, 133, 729. 
 
 V. Landers, 531. 
 
 et al V. Leonard, 61, 64, 69. 
 
 Ryberg v Ryberg et al, 304. 
 Ryder v. Burke, 107. 
 
 V. Wombwell, 336. 
 
 Ryland v. Noakes, 100. 
 
 V. Wormald, 76, 703. 
 
 Ry ves v. Duke of Wellington, 472. 
 
 Sacketu T. Owen, 226. 
 Sainsbury v. Matthews, 71, 73, 291. 
 Salaman v. Donovan, 393, 399. 
 Sale V. Crompton, 49, 
 Salkeld & Slatei-, In re, 248. 
 Salkill V. Lcrd Howard, 179. 
 Salter v. McLeod, 108. 
 
 V. Purchill, 131. 
 
 Sample v. Lordon and Birmingham R. 
 
 Co. 470. 
 Sams v. Corporation of Toronto, In 
 
 re, 446. 
 Samuel v. Duke et al, 356, 724. 
 
 v. Morris et al, 724. 
 
 Sandall v. Bennett, 627. 
 
 Sanders v. Pope, 567. 
 
 Sanderson et al v. Kingston Marine 
 
 Railway, 337. 
 
 et al V. Piper, 308. 
 
 V. Westley et al, 637. 
 
 Sandys v. Hohler, 634. 
 Sanford v. Alcock, 406. 
 Sangford v. Haynes, 627. 
 Sanson et al v. Goode, 639, 
 
TABLE OP CASES OITEO. 
 
 Ixvii 
 
 lira, lia. 
 
 340. 
 
 69. 
 
 472. 
 291. 
 
 laiu R. 
 to, In 
 
 lanne 
 
 Sargant v. Gordon, 9. 
 Satclnvell v. Lawes, 666. 
 Saunders' Bail, 0(37. 
 
 V. Bate, 317. 
 
 V. McGowran et al, 194. 
 
 et al V. Smitli et al, 469, 474. 
 
 Samulerson et al v. Parker, 378. 
 Saunter v. Ferguson, 470. 
 Sava^'o V. Dent, 5(t7, 514. 
 !■ ivi'iy V. Lister, 622. 
 Saviirnal v. Rooine, 85. 
 Saville v. Tankrud, 405. 
 Savin v. lloylake, 1 80. 
 Savory v. Cliai)iimn, 379. 
 Sajre et al v. ilinns, 95. 
 
 V. Earl of Rochford, 133. 
 
 Scanlan et iix. v. Seeals et al, 533. 
 Scarte v. llallifax, fJSS. 
 Scatclierd v. Andrews, 38, 668. 
 Sclu'uck V. Godts, 158. 
 Sehleiiker v. MoAey, 85. 
 Schliuiiberger v. Lister, 175, 180, 
 Selire:,'er v. Garden et al, 120, 122. 
 Scliofield et al v. Bull et al, 180. 
 
 V. Ilug'j^iris, 64, 141. 
 
 Seliustor et al v. Wheelwright, 109, 321 
 Scobcll V. Gilmour, 225. 
 
 Scoble V. Honson, 109, 
 Scojie V. I'addison, 97. 
 Scott V. Avery, 233, 230, 
 
 V. Benson, 381, 384, 
 
 et al V. Chappelow, 131, 166, 
 
 V. Cogger, 6?7. 
 
 V. Count de Richibourgo, 136. 
 
 V. Croathwaite, 325. 
 
 V. I)e Rechbourg, 652. 
 
 V. Dickson, 610. 
 
 V. Godwin, 161. 
 
 et al V. Jones, 30, 
 
 V. Larkin, 878. 
 
 V. Littledale et al, 174. 
 
 V. Marshall, 323, 
 
 et ux. V. McCawley, 259. 
 
 et al V. McLeod, 637. 
 
 V. Soott, 335. 
 
 V. Uxbridge & Bickmansworth, 
 
 415. 
 
 V. "VanSandau, 221, 247, 255. 
 
 V. Walker, 259, 260. 
 
 et al V. Williams, 224. 
 
 V. Zygomala, 269, 264, 269. 
 
 Scroiie V. I'addison, 525. 
 
 Scudamore et al v. Stratton et al, 162, 
 
 Seagrave v. Barber, 94, 
 
 Sealy v. Hearne, 14. 
 Searle v. Bradsliaw, 158. 
 Searson v. Small, 151, 379. 
 Seaton v. Benedict, 121, 122. 
 
 Seaward v. Ilo.vcy, In ro, 224. 
 Sedley v. MeGowan, 533, 534. 
 
 V. White, 679, 
 
 Seely v. Ellison, 106. 
 Selby V. Cruchley, 633. 
 
 V. The Kast Anglian R. Co. 158. 
 
 Sellers v. Bickford, 163. 
 S^maj'ne's Case, 536. 
 Senior v. McEwen et al, 283, 286. 
 Sergeant et al, v. Chafy, 310, 314. 
 Serrel v. Derbj'sliire, Statfordr^liire (fc 
 
 Worcestershiro Junction Railway 
 
 Co. 434. 
 Serres et ux. v. Dodd, 87" 
 Session v. Strachan, 399. 
 Severin v. Leicester, 99, 622. 688. 
 Severn et al v. Cosgrovo, 225. 
 Sewell V. Dale, 126, 158, 717. 
 
 V. Tompson, 408. 
 
 Sexton V. I'axton, 507. 
 
 Seymour v Corporation of Brecon, 396, 
 
 399, 
 
 V. Maddox, 522, 677, 
 
 Seymor's Case, 582. 
 Shackel v. Ranger, 92. 
 Shad.s'ell v. Beithoud, 156. 
 
 V, Shadwell et al, 260. 
 
 Shae V. O'Neil, 210. 
 Shnn'ey v. Moore, 393. 
 'i;.iarland v. Leifchild, 94, 713. 
 
 V. Loaring, 12S, 427. 
 
 Sharman v. Bell et al, 225. 
 
 V. Stevenson, 121, 
 
 Sharp V. Ashby, 699. 
 
 V. D'Ahnaine, 180, 
 
 V. Fox, 99, 088. 
 
 V. Roe, 022. 
 
 Sharpe v. Hancock, 223. 
 
 V. Johnson, 678. 
 
 V. Lamb et al, 278. 
 
 Shatwell v. Barlow, 424, 
 
 Shave v, Spode, 067. 
 
 Shaver v. Great Western R. Co. 387. 
 
 Shaw V. Evans, 039. 
 
 V. Harris, 108. 
 
 V. Holmes, 2.V!, 275. 
 
 V. Hughes, 623, 624. 
 
 V. et al V. Lord Alvanley,. 140. 
 
 V. Nenle, 052. 
 
 et al V. Nickorson, 50, 62, 235, 
 
 V. Shaw. 117. 
 
 V. The Bank of England, 274. 
 
 V. Turton, 222. 
 
 • V. \\ bitty, 633. 
 
 Shcehy v. The Professional Life Assur- 
 ance Co. 18, 136, 164. 
 Sheldon v, Hamilton, 136, 144. 
 V, Sluraford, 672, 
 
Ixviii 
 
 TABLE OP CASES CITED. 
 
 Shenston v. Baker, 370. 
 Slicj)hnril v. Sliuin, 11. 
 !51ici)lierd v. Bcintnish, fi"A, 
 
 V. IJntler, 2o5. 
 
 V. Duncan, 102. 
 
 Slieplcy V. Marsh, 288. 
 Slicjipard V. Williams, 20. 
 Sliei'ljurnc v. Loi-d Iluntiiigtower, 341, 
 
 6.S(1, 1139. 
 Sherrat v. Webster, 86. 
 Sherlock v. Bfirnerd, 337. 
 Sheridan v. Cassidy, 558. 
 Sherraii v. Marshall ot al, 639. 
 Sherratt v. Floyer, 38. 
 Sheriff V.Crosby, 50, 
 
 V. ]SIcCoy, 715, 
 
 Sherrington v. Yates et al, 188. 
 Hlierrv v. Oke et al, 220, 693. 
 Sherwin v. Swindal, 430, 431, 432. 
 Sherwood v. March, 158. 
 
 V. Taylor, 423, 424. 
 
 et nl V. The Board of Works, 
 
 21, 483. 
 Shillibeer v. Lingwood, 124. 
 Shindler v. Roberts, 54. 
 Shirley v. Jacobs, 13, 50, 53, 721. 
 Shoebridi^e v. Irwin, 111. 
 Shoinan v. Allen, 334. 
 Shore et ux. v. Bradley et al, 99. 
 
 et al V. McCabe et al, 517. 
 
 V. Shore, 110. 
 
 Shoreditch v. Gilbard et al, 324. 
 Short V. Camiibell, 679. 
 
 d. EInies v. King, 514. 
 
 V. Kina:, 578. 
 
 V. Mercier, 261, 277. 
 
 V. Simpson et al, 93. 
 
 Shor^all v. Moran, 246. 
 Sli'juldice V. Fraser, 626. 
 Showier v. Stonkes et al, 112, 6': 8. 
 Shrimpton v. Carter, 82. 
 
 V. Sidmonth R. Co. 415. 
 
 Shuberg et ux. v. Cornwall, 87. 
 
 Shuter'v. Dee, 438. 
 
 Shuttleworth v. Cocker, 427, 428, 430, 
 
 486. 
 Sibley v. Fisher, 717. 
 Sicke'l V Borch, 43 
 Sickles et al v. Asselstino, 345. 
 Sidebottor.i v. Adkins, 267. 
 Sieveking et al v. Dutton, 94, 713. 
 Sifton V. Anderson et al, 484. 
 Sijrgers v Sanson, 25 
 Sillen V. Holloway, 318. 
 Sim V. Edmands, 94, 95. 
 Silversides v Bowley, 424. 
 Simmonds v. Hughes et al, 77. 
 Simmons v. Lfllystuno, 100, 725, 
 
 Simms v. Denison, 716. 
 
 V. Henderson, 254. 
 
 Simpson v. Drummond, 679. 
 V. Gray et ux. 4o8. 
 
 V. Hanley et al, 659. 
 
 V. Heath, 408. 
 
 et al V. Jackson, 56, 101. 
 
 et al V. Lamb, 652. 
 
 V. Ramsay, 4,17. 
 
 V. Rand, 97, 708, 
 
 V. Sadd, 251. 
 
 Simpson's Bail, 665. 
 Sims V. Kitchen, 281. 
 
 Sinclair v. The Great Eastern Railway 
 
 Co., 699. 
 Sisson V. Cooper, 631. 
 Sisted V. Lee, 64. 
 Sheahon v. Whelan, 512. 
 Skee V. Coxon, 246. 
 Skeete et al. In re, 224. 
 Skelton v. Hawlings, 412. 
 Skotchley v. Connolly, 265. 
 Skinner v. The London, Brighton and 
 
 South Coast Railway Co. 154, 325. 
 
 V. Holcomb, 224. 
 
 Slack V. Clifton, 709. 
 
 V. McEathron, 226. 
 
 Sladdeu v. Sergeant et al, 296. 
 
 V. Smith, 642, 
 
 Slade V. Noel, 43. 
 
 V. llawlej', 127. 
 
 Slate-.', Re, 38(5. 
 
 V. Mackay, 426. 
 
 Slatter v. Painter, 286, 
 
 Sleenian et al v. Governors it Company 
 
 Copper Miners of England, 324, 
 
 825. 
 Sloane v. Flood, 104. 
 
 V. Packman, 168 
 
 Sloate V. Rew, 205. 
 Sloper V. Cottrell, 180, 181. 
 Smales v. Dale, 537. 
 Small V. Beasloy, 53. 
 
 V. Haney, 434. 
 
 V. McKenzie. 725. 
 
 V. Rogers, 225. 
 
 V. Strachan et al, 104. 
 
 Smallcomb v. Cross, 355, 
 
 Smceton et al v. Collier, 60, 541, 674, 
 
 676. 
 Smethurst v. Taylor, 16, 295, 721. 
 Smart v Detroit & N, & D. lliv. Rail- 
 way Co. 16. 
 
 V. Hyde. 94, 714. 
 
 V Lovick et al, 11. 
 
 V. Miller, In re, 393, 396. 
 
 V. Niagara and Detroit Railway 
 
 Co. 15, 63, 
 
TABLE OF CASES CITED. 
 
 Isii 
 
 ). 
 ,101. 
 
 n Railway ^^M 
 
 righton and 
 :o. 154,325. 
 
 296. 
 
 Smart et al v. Sanders ct al, M6. 
 Smilli, Ex parte, 679. 
 
 In re, 617. 
 
 V. Allen, 209. 
 
 V. 15arr()\v, 81. 
 
 V llcllows, 1584. 
 
 V. IJird ot al, 278. 
 
 ct al V. Blackwell, 156. 
 
 ct Blake, In re, 219, 240. 
 
 V. Bond, 54. 
 
 V. Brandrain, SC'9. 
 
 V. Brown, 199, 334, 498. 
 
 V. Campbell et al, 688. 
 V. Clarke, 677. 
 
 V. Colton, 109. 
 
 V Davis, 330. 
 
 V. Dickinson, 317, 348, 653. 
 
 V. Dixon, 130, 141, 713. 
 
 V. Kdj;e, 212. 
 
 V. Klirer, 469. 
 
 et al V, George et al, In re, 226. 
 
 V. GofT, 221, 250. 
 
 V. Goldswortliy, 145. 
 
 V. Hamilton, 602. 
 
 V. Hardy, 156, 157. 
 
 V. Harmon, 195. 
 
 V. Hartley, 1 36. 
 
 V. Hearne, 155 
 
 tt Henderson, In re, 617. 
 
 V. Jackson, 106. 
 
 V. Jeyes, 472. 
 
 ■■ 
 
 V. Jones, 125. 
 
 — - .. V Tvnowclden 71 73 309 310 
 
 ^1 
 
 811. 
 
 1 it Company j^ 
 
 V. Marshall, 325. 
 
 lilUUUl, '6'ii, WK 
 
 V. Martin, 292, 710. 
 
 oH 
 
 V. McGill, 390. 
 
 ^H 
 
 V. Mc(ionegal, 275. 
 
 ^1 
 
 V. Mee, 413. 
 
 ^1 
 
 V. .^lills, 96, 730. 
 
 ^1 
 
 V. Jlonteith, 165. 
 
 ^H 
 
 V. O'Brien, 105, 106. 
 
 ^1 
 
 V. I'arks, 559. 
 
 ^^H 
 
 ,. lijiriniiT l'>-1 711 
 
 H 
 
 V. I'ennell, 52. 
 
 ^^H 
 
 .(• Uniini-i' Tn rn "'^S 
 
 1 
 
 V Hiid 7 
 
 
 ^1 
 
 V. Rieliardson, 725. 
 
 60, 541, 574, ■ 
 
 V. Robinson, 647. 
 
 ■■ 
 
 V. Roe, 69, 2S4, 690. — 
 
 90.^). '721. ^1 
 
 V. Rooney, 338. 
 
 n lliv. Rail- H 
 
 V Royston, 128, 729. 
 
 ^1 
 
 V. Russell, 6, 7. 
 
 ^1 
 
 V, Wandford. 632. 
 
 ^1 
 
 V. Scott, 720. 
 
 3 306. H 
 
 V. Smitli, 12. 
 
 troit Railway | 
 
 V. Svmes, 244. 
 
 — V, 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 ct al V. Tateliam et al, 411, 414. 
 
 Smith V. Tomperloy, 850. 
 
 • Tett, 566. 
 
 V. The Duke of Beaufort, 250. 
 
 V. The Great Western Railway 
 
 Co. 261, 272. 
 
 V. The Provincial Insur. Co. ISO. 
 
 The Royal Insnraiice Co. ISO. 
 Thompson. 97, 7(i3. 
 Truscott, 6SS. 
 Tru«t it Loan Co., 392. 
 Turnbull, 3.")9. 
 AVallbridge, 321- 
 Weilderbonrne, 59, 7n.'). 
 
 V. Winter, 295, 716. 
 
 V. Wiiitlo, 18. 
 
 V. AVhitinore, 24."). 
 
 V. Woodcock, 1)36. 
 
 V. Yeomans, 93. 
 
 Smitli's Bail, 665. 
 
 Smithwiek v. Beary, 29". 
 
 Smytii, Assignees of, v. Sayevs, 647. 
 
 Smythe et al v. Tower, 6'^7. 
 
 Sneider v. Mangins, 260. 
 
 Snook V. Mattoeh, 2o4. 
 
 Snooke V. Hellyer, 224. 
 
 Snooks V. Smith, 347. 
 
 Soares v. Glyn et al, 130. 
 
 Soilleux V. Herbst, 244. 
 
 Solly V Lanfofd, 649. 
 
 et al V. Neish, 131. 
 
 > Solomon V. N'ainby, 9. 
 Solomonson et al v. Parker ot nl, 99, 112 
 Somers v. King, 630. 
 Somerville v. Hawkins, 726. 
 Soper V. Curtis, 447. 
 
 V. Draper et al, 58. 
 
 Soulby V. Hodgson, 238. 
 
 Souter V. Watts, 579. 
 
 South Eastern R. Co. v. Barnes, 7(.'9. 
 
 V. Hebblewliite, 130, 140. 
 
 V. Regina, 464. 
 
 V. Sprot, 145, 707. 
 
 Sonlhee v. Denny, 310. 
 Soutliey et al v. Mau:an, 90. 
 
 V. Sherwood et, nl, 472, 474. 
 
 Southgate et al v. Corley et al, 4'J2. 
 South Shiiddii Waterworks Co. v, 
 
 Cookson, 723. 
 Southwell V. Bird, 420. 
 Soward v. Leggatt, 292. 
 Sowden et al v. SowcUmi, 17, 
 Sowter V. Hitehcick, 629. 
 Si»ain V. Cadell, 428. 
 Spafi'ord v. Buchanan, 185, 262, C25, 
 
 329. 
 Sparkes v. Y'unge, 394. 
 Speach v. Slade, 667. 
 Spear v. Chapman, 91. 
 
m 
 
 
 izx 
 
 TABLE OP CA8S8 CITED. 
 
 Speck V Phillips, 122 
 Spence et nl v. Albert, 422. 
 
 V. BiirkcT, 20. 
 
 V. Ik-aley, 102. 
 
 V. Stunrt, 223. 
 
 Spencel«y v. Sliouls, 111. 
 Spencer v Biiroii<;li, 278. 
 
 V. Campion, 024. 
 
 V. Dawson, 125. 
 
 V. Goter, S-Sii. 
 
 V. Ilanierton, 143, 20 2, 711. 
 
 V. London and Birmingham 
 
 Ilailway Co., 409. 
 
 V.Newton, 223. 
 
 V. Parry, 85. 
 
 Spicer et al v. Todd, 51. 
 Spirett V. Willow.s, 477. 
 Spooner v. Brewster, 88. 
 
 V Danks, 424. 
 
 Spottiswoodfi V (Jhirke, 470. 
 Spotswoodo \. Burrow et al, 133. 
 Spreiidi)erry v. Gillani, 127. 
 Sprinij V. Coekburn et al, 335. 
 Springlioad Si)inninf!; Co. v. llilej', 472. 
 Spiirr V. Kayner, 327. 
 Spyer v. Thelwcll. 96. 
 Sfjiiire V. Campbell, 400. 
 
 V. Grevette, 223. 
 
 et al V. Iluetson'et al, 367. 
 
 Stables ct al v As-hley et al, 9. 
 Stacey v. Melntyre, 649. 
 Stnfi'ordshire Banking Co. (Limited) 
 
 V. Emniett, 732. 
 
 R. Co. V. Bnrnside, 199. 
 
 Stainsbury v. Matthews, 8o9, 
 Staley v. Long, 144, 333. 
 Stulworth V. Jones, 223, 224. 
 Stancliffe v- Hardwicke, 724, 728. 
 Standard v. Baker, 258. 
 Standeven et nl v. Murgatroj-d, 652. 
 Staniforth v. Richmond, 43. 
 Stanton \. Brittle, 510. 
 
 et al V. Windeat, 310. 
 
 Staples V. Hay, 220, 093. 
 
 Slap'oton V. IJergin, 104. 
 
 Starling v. Cozenz et al, 419. 
 
 Sturratt v. Manning. 57, 020. 
 
 Stoad V. Williams et al, 470, 632. 
 
 Steadnian v. Arden, 275. 
 
 Stear.s v. South Essex Gas Light and 
 
 Coke Co. 128. 
 Stedt,,:-" V. Wasley, 164. 
 Steel V. Compton, 6, 692. 
 Steele v. Haddock et al, 170. 
 
 V. Ilarmer et al, 158. 
 
 V. Morgan, 27, 52. 
 
 V. Storry et al, 140. 
 
 Steen v. Steen, 526, 651, 607. 
 
 Steers v. Horrop, 218. 
 Steill V. Sturry, 168, 708. 
 Stein V. Yglesias et al, 71t>. 
 Stoinko'ler v. Newton, 271. 
 Stenhouse v. Barnes, 7o2. 
 Stephens v. Allan, 335. 
 
 V. Berry, 718. 
 
 et nl V. Dcnnie, 483. 
 
 V. Foster et nl, 271. 
 
 V. Hill, 617. 
 
 V. Lowndes, 62. 
 
 Stephenson v. Thorne, 27. 
 Stern v. Seva.stopulo, 263, 266. 
 Stevens v. 'Keating, 470. 
 
 V. Miller, 605, 067. 
 
 V. Pell, 286. 
 
 v. Sheldon, 352. 
 
 Steward v. Dunn, 140. 
 Stewart v. Ballance, 633. 
 v. Crawford, 225; 
 
 ■ v. Greaves et al, 140. 
 
 V. Johnstone, luO. 
 
 V. Lynar, 107. 
 
 v. Moft'att, 426, 427. 
 
 V. Rowlands, 131, 163. 
 
 V. Smith, 263. 
 
 Still et al V. Halford, 223. 
 Stilwell et al v. Ruck, 272. 
 Stimson v. Hall et nl, 174. 
 
 v. Stimson, 483. 
 
 Stinson qui tnm v. (iuess, 387. 
 
 v. Martin, 630. 
 
 St. Losky et al v. Green et al, 319, 321. 
 Stock, Huggens and De Smith's cases, 
 
 223. 
 Stocking V. Cameron, 379. 
 Stockport v. Hawkins, 410, 
 Stocks et al v. Willes, 639. 
 Stockton & Darlington R. Co. v. Fo.\, 
 
 285. 
 Stokes V. Grissell, 60, 257. 
 
 V. Harnett, 157. 
 
 et nl V. Lewis et nl, 716. 
 
 V. Woodeson, 035. 
 
 Stone V. Strnnge, 276. 
 Stones v. Menhem, 273. 
 Storey v. Finnis et nl, 119, 122. 
 Stougliton v. Earl of Kilmon^y, 719. 
 Stovin V. Taylor, 424. 
 Stracey v. Blake, 279. 
 Strachan et al v. Bullock, 436. 
 Strange v. Dillon, 330. 
 
 v. Jarvis, 356. 
 
 Stratford v. Sherwood, 433. 
 Stratton v. Burgis, 620. 
 
 V. Green, 227. 
 
 Street v. Brown, 275. 
 V. Cuthbert, 139, 2C3. 
 
 Strc 
 
 Strel 
 
 Stril 
 
 Stril 
 
 ,Stro 
 
 %j.;j, 
 
TABLE OP CASES CITED. 
 
 ksi 
 
 Street v. Dolson, 137. 
 
 V. McDonell, 517. 
 
 V. Proudfoot, 263. 
 
 Streeter v. Bartlett, 299. 
 
 Strike v. Blanclmrd, B7l>. 
 
 Strinijer v. Aramerman, 542. 
 ; Stroiisr V. Foster, 173. 
 
 -- et al V. Shoan et ux. 53-1. 
 — V. Rorzel, 37. 
 [j^troud V. Gerrard, 60, 
 [ V. Kane, 370. 
 
 ■ V. Kenny, C02. 
 
 ■ V. Watts, 428. 
 ! Strutt V. R' sers, 227. 
 
 I Stuart V. Gaveran, 679. 
 
 V. Rogers et al, 68, 329, 
 
 Studdert v. Leary, 24. 
 iStull V. McLeod, 381. 
 
 Sturge V. Buelianan, 281. 
 
 Sturinay qui tarn v. Smith, 388. 
 - Sturm et al v. Jeffrce, 281. 
 [ Sturz V. De la Rue, 474. 
 IStutton V. Blaroent, 493. 
 I Styrling v. Lloyd, 088. 
 [ Suckling V. Welson et al, 115. 
 
 Sufferin v. Dunbar, 105. 
 
 Sugars V. Concanon, 31, 52, 
 
 Sucker et al v. Keale, 288. 
 
 Sullivan v. King, 678. 
 
 Sully V. Noble et al, 286. 
 
 Sulsh V. Cranbrook, 286. 
 
 Sumner v. Batson, 9. 
 
 Summcrville v. Joy, 331. 
 
 Suubolfv. Alford, 3()7. 
 J Sutclitfe V. Brooke, 224. 
 ISuter V. McLean, 336. 
 [Sutherland ot al v. Tatterson, 292. 
 
 V. I'rattetal, 91, 130, 713, 
 
 714. 
 
 V. Tisdale, 436, 
 
 Sutton V. Bishop, 179. 
 
 V. Burgess, 13. 
 
 V. Clarke, 71, 630, 
 
 V. Craig, 647. 
 
 V. Purdon, 632. 
 
 V. Rawlings, 574, 575, 576. 
 
 V. Soutli Eastern R. Co. 471. 
 
 Swain et al v. Roberts, 629. 
 Swaine et al v. Stone, 0. 
 Swan V. Cleland, 409. 
 
 V. North British Australian Co, 
 
 461. 
 Swanton v. Biggs, 558. 
 Swayno v. Great Northern R. Co. 475. 
 Sweet V. Cater, 474. 
 
 V. Mangham, 474, 
 
 Sweeting v. Asplin, 85. 
 
 Sweetman v. Lemou et al, 397, 398. 
 
 Swift V. Nun, 269. 
 
 V. Swift, 336, 
 
 Swinbourno v. Carter et al, 631, 
 Swinfen v. Swinfen, 261. 
 
 Sykes v. Brockville <fe Ottawa Railway 
 Co. 403. 
 
 V, Giles, 471, 
 
 et al V. Sykes et al, 632. 
 
 toymes v. Goodfellow, 221, 226. 
 
 V. Nipper, 716. 
 
 Sj'raonds v. Symonds, 600. 
 Symons v, Blake, 180. 
 Sympson v. Prothero, 395, 652. 
 Syms V. Chaplin et al, 728. 
 Synge v, Aldwell, 602. 
 
 Tabram v. Thomas, 13, 50. 
 Tadman v. Wood, 11, 49, 52, 58, 72, 
 Taff Vale R. Co. v. Nixon et al, 209. 
 Tagg V. Siramonds et al, 158. 
 Tait et al v, Atkinson, 223. 
 Talbot V, Fisher, 212. 
 
 V. Hodson, 423. 
 
 Talbut V Bulkeley, 133. 
 Tambisco v. Pacifico, 631. 
 Tancred et al v. Christy, 533. 
 Tandy, In re, 222. 
 Tarber v. French, 676. 
 Tate V. Bodfield, 64. 
 V. Corporation of the City of To- 
 ronto, 267, 393, 397, 399. 
 Tatem et al v. Perient, 130. 
 Tattersall v. Groote, 222, 236. 
 
 V. Parkinson, 119, 12S. 
 
 Taverner v. Little, 723, 724. 
 Tay V. Prentice et al, 461, 469. 
 Taylor, In re, 244. 
 
 d. Atkyns v. Horde, 550. 
 
 V. Best et al, 43. 
 
 V. Carr, 144. 
 
 V. Carroll, 140. 
 
 V. Evans, 668. 
 
 V. Grand Trunk R. Co. 22. 
 
 V. Harris, 193. 
 
 V. Hawkins, 726. 
 
 V. Holman et al, 414. 
 
 V. Joddrell, 622. 
 
 V. Lady Gordon, 227. 
 
 • V. Marling et al, 206. 
 
 V. McGinley, 189. 
 
 V. Murray, 651. 
 
 V. Needham, 162. 
 
 V. Nesfield, 334. 
 
 et al V. NichoUs, 477,637, 638, 
 
 V. Osborne, 276. 
 
 — V. Parkinson, 637. . 
 
 V. Quinton, 275, 
 
 V. Rolf et al, 419, 423, 427. 
 
Izxii 
 
 TABLE OP 0ASE8 CITED. 
 
 
 Taj-lor V. Rose et nl, 337. 
 
 V. Slinw, 317, 821, 822. 
 
 V. Smith, 157. 
 
 V. Thompson, 273. 
 
 V. Whitworth, 58. 
 
 V. "Williams, 279, 280, 642. 
 
 Tebbs V. Barron, 101. 
 
 Tebbutt V. Ambler, 682. 
 
 Teede et al v. Johnson, 180, 181. 
 
 Tepgin v. Lnngford, 50. 
 
 Tell V. Reail, 4U5. 
 
 Tempeny v. Ki^^by et nl, 28(5. 
 
 Temperiey v. Brown, 97, 708. 
 
 V. Scott, 271. 
 
 V. Willet, 260. 
 
 Tempest et nl v. Kilner, 361. 
 Tennnnt v. Hamilton, 304. 
 Tennyson v. O'Brien, 317, 318, 320. 
 Terry v. Comstock, 32. 
 
 V. Starkweather, 726. 
 
 Terrell v. Higgs, 175. 
 Tetley v. Easton et al, 267. 
 
 et al V. Wanless, 131, 319, 7S2. 
 
 Tenlon v. Gnnt, 98. 
 Thaekray v. Harris, 379. 
 Thnmo v. Boast, 123, 124. 
 Thames Iron- Works Co. v. 
 Derrick Co. 636. 
 
 Patent 
 
 V. Roj-al 
 120, 122, 
 
 Mail Steam Packet Co. 
 
 168, 180. 
 Tlinrpe v. Gisbnrne, 301. 
 Thelluson v. Staples, 703. 
 Thelwell v. Yelverton, 22, 43, 534, 
 Thirkell et al. In re, 218, 241. 
 
 V. Strachan, 225. 
 
 Thol V. Leask, 26."). 
 
 Thorn V. Uuddy. 131. 
 
 Thomas v. Brook, la re, 224, 602. 
 
 V. Baron Von Stutterheim, 252 
 
 V. Cotton, 375. 
 
 et al V Desauges et al, 447. 
 
 V. Dunn, 275, 334. 
 
 ■V. Edwards, 647. 
 
 — V. Great Western Railway Co. 
 
 376. 
 
 — V. Hnwkes et al, 122, 717. 
 
 — T. Hilmer, 105. 
 
 — V. Jackson, 92. 
 
 — V. Jones, 339. 
 
 — V. Lloyd, 419. 
 
 — V. Morgan, 723. 
 
 — V. Packer, 562. 
 
 — V. Pearce, 18, 19. 
 
 — V. Philby, 685. 
 
 — V. Saunders et al, 702. 
 
 — V. Williams, 412, 414. 
 
 — V. Tillic, 266. 
 
 Thomas v. Wallers, 819. 
 Thompselt et ux. Bowyer, 212, 
 Thompson, Ex parte, 462, 467. 
 
 et nl V. Atkinson, 423. 
 
 et nl V. Beeke, 50. 
 
 V. Billing, 686. 
 
 V. Breakenridge et al, 131. 
 
 V. Calder, 18, 19. 
 
 V. Callagan, 633. 
 
 el al V. Charnock, 233. 
 
 V. Chubley, 719. 
 
 V. Crawford et al, 456. 
 
 V. Dicas, 9. 
 
 et.al V. Falconer, 518. 
 
 V. Farr, 497, 601, 502. 
 
 V Gibson et al, 429, 484. 
 
 V. Ilardinger et al, 133. 
 
 V, Hornby, 712. 
 
 V. Jackson et al, 119, 122, 
 
 140. 
 
 Kngo et al, 120. 
 Knowle.1, 134. 
 Lewis, 291. 
 Macklen, 225. 
 
 V. McDonald, 173. 
 
 V. Mirehouse, 536. 
 
 V. N. B. R. R. Co., 22. 
 
 et al V. Pai-ish, 312, 379. 
 
 ■ V. Redman, 158. 
 et al V. Robson et al, 259. 
 
 ■ V. Sewell, 75. 
 
 ■ V. Shanle}', 283. 
 
 • V. Sheppard, 119, 122. 
 
 ■ v. Slade, 508. 
 
 • V, Tomkinson et al, 519,520 
 Y. Welch, 517. 
 
 ■ V. Wilkes, 366. 
 
 V. 
 V. 
 V. 
 V 
 
 Thompson's Bail, 665, 
 Thomson v. Billingsey, 692. 
 Thorn v. Leslie, 673. 
 Thorne et al v. Neal, 636, 685. 
 
 V. Tilbury et al, 175. 
 
 Thointon v, Hornby, 224. 
 
 V. Whitehead, 97, 708. 
 
 V. Wilkinson, 535, 580. 
 
 Thorpe v. Argles, 196, 685. 
 
 V. Eyre. 242. 
 
 V. Murphy, 632. 
 
 V. Plowden, 204, 207. 
 
 V. Thorpe, 95. 
 
 Threlfull v. Webster, 275. 
 Thrustout d. Jones v. Shenton, 608. 
 
 d. Turner V. Grey etal, 530. 
 
 Tierney, In re, 680. 
 
 Tiffany v. Boulton, 391. 
 
 V. Bullen, 69, 268, 392. 
 
 TitHn V. Glass, 420. 
 
 Tilbury v. Brown, 397, 
 
 1 1 ,H 
 
 
TABLE OP CASES CITED. 
 
 Isxiii 
 
 Tilford V. Frcncli, 223. 
 
 Tilloy V. Ilei:ly, <178. 
 
 Tilinu'v. Hodgson, 62. 
 
 Tillnni v. Coi.p, 221, 
 
 Tillett V. Strucey, In re, C99. 
 
 Tilly V. IIotlL^'son, 27. 
 
 Tiltv. Dickson, 251. 
 
 Times Fire Aamv. Co. v. Ilawke, 321. 
 I Timniins ct iix. v. Gibbins, 716. 
 
 Timniis et al v. Piatt, 717. 
 
 Tijipintf V. Johnson, 379. 
 
 Tii)l.>n V. Gardner, 424. 
 
 Tischer v. Aide, 122. 
 
 Tobin et al v. The Queen, 133. 
 ; Tobv V. Hancock, 11. 
 I Todd V. Cann et al, 513. 
 
 - V. Emly, 117, 118. 
 
 - V. Evans, 19. 
 
 - V. Liverpool and London Globe 
 Insurance Co., 335. 
 
 - V. McRlain, 231- 
 
 - V. The Gore Bank, 85. 
 iloUen V. Fletcher, 479. 
 ITolhurst V. Noltey, 133. 
 ITollit. V. S:Aunders, 238. 
 
 [Tolson V. Bishop of Carlisle et al, 618. 
 Tonilin v. Mayor, &c. of Fordwich, 223 
 iTomlinson v. Bollard, 51, 74, 153, 3U9, 
 312. 
 
 V. Goatly, 19, 20, 
 
 V. Harvey 668. 
 
 j Tompkins v. Chilcote, 13. 
 iTooniey v. London, Brighton & South 
 Cimst Railway Co., ""330. 
 ropliam V. Kidmore, 124. 
 [oiijiiu V, Field, 199. 
 roii[iing V. Brown, 330. 
 -- V. Salt, 400. 
 
 ct al V. Yardington ct al, 345. 
 ^Torrance v. Gross, 633, 634. 
 
 • ct al V. Holden et al, 355 
 Tory V. Stevens, 101. 
 Towne v. Tiie London and Limerick 
 
 Steamship Co., 21. 
 Townly, Ex parte, 692. 
 Towns" V. I'ratt, 361. 
 Townsendv. Smith, 117, 118. 
 
 V. Sterling, 419, 427. 
 
 Townson v. Jackson, 17, 721, 722. 
 
 Towsley V. Wythes, 226. 
 
 Tozor qui tarn v. Preston, In re, 610. 
 
 Traci'y v. Ilodgest, 225 226. 
 
 Tralurno et al v. Gardner et al, 1 29, 
 
 Travis v. Collins, 276 
 
 Treacher v. Winton, 336. 
 
 Treasure's Bail, 664. 
 
 Tremayne, In re, 618. 
 
 Trem.jcre v. Morrison, 8. 
 
 Tremenhero v. Tresillian, 233, 
 Trent v. Harrison, 702 703. 
 
 V. Hunt, 13?. 
 
 Tress v. Savage, 566, 
 Tricket v. Jarman, 153, 315. 
 Trickey v. Larne, 501. 
 
 V. Yeandall, 141. 
 
 Triebnerr v, Duerr, 14<i. 
 
 Trinder v. Smedloy, 622, 68S, 719. 
 
 Trippet v. Eyre, 236. 
 
 Tri.st V. Johnson, 281. 
 
 Trot v. Spurling, 177. 
 
 Trott V. Smith, 677. 720. 
 
 Trotter v. Bass, 13, 50. 
 
 Troup V. Ricardo et al, 179. 
 
 Truslovev.Whitechnrchetal, 12,13,14 
 
 Truscott V. Latour, 330. 
 
 Trus' and Loan Co. v. Dickson, 695. 
 
 V. Elison et al, 517. 
 
 V. Stephen, 510. 
 
 Trustees of Evans Charities v. The 
 
 Bank of Ireland, 534. 
 Toronto Hospital v. Reward, 
 
 173. 
 Tnck V. Tnck, 127, 129. 
 Tucker v. Barnesley, 133, 166. 
 
 V. Colegate, 677. 
 
 . V. Horseman, 633. 
 
 Tuckey v Hawkins, 132. 
 Tuer V. Harrison, 477. 
 Tufton V. Whitmore et al, 271. 
 Tullet V. Lenfield, 447. 
 Tally V. Corrie, 318. 
 Tunzell v. Allen et al, 275. 
 Tupling V. Ward, 260. 
 Turk et al v. Syne, 207, 2G9. 
 Turley v. Williamson, 519. 
 Turner, Ex parte, 393, 
 
 V. Berry, 430. 
 
 ■ V. Cameron & Coalbrook Steam 
 
 Coal Co., 551, 729. 
 
 V. Cary, 666, 668. 
 
 V. Collins, 17, 721. 
 
 • V. Da vies, 179. 
 
 V. Diaper, 122, 716. 
 
 V. Gill, 53. 
 
 ——— et al V. Hardcastle, 730. 
 
 et al V. Hawkins et al, 85. 
 
 et al V. Jones, 397, 4U3. 
 
 V. Lamb, 161. 
 
 V. Merywoathor, 325. 
 
 et al V. Prince, 423. 
 
 V. Pulman, 180. 
 
 Turnley v. Macgregor, 158, 713. 
 Turquand et al v. Hawtrey et al, 140. 
 
 et al V. Hennet, 93. 
 
 Tuson V. Evans, 726 
 
 Twemlow et al v. Askey et nl, 122. 
 
Ixxiv 
 
 TABLE OP OASES CITED. 
 
 Twisg V. Osborne, 424. 
 Twycross v. King, 138. 
 TwyiTiiin V. Knowles, 122. 
 Tyermnn v. Smith, 239. 
 Tyldiiii V. Biillcn, 29!). 
 Tyler v. Cnnipboll, 386. 
 
 V. (h'cen, 52, 677. 
 
 Tyndnll ct al v. Ullt'shorne, 106. 
 Tynn v. BeHinjjsley, 279. 
 Tyrwliltt V. Wynne et al, 295. 
 Tyson v. Maclean, 4, 83, 674, 687. 
 
 Udall, Ex parte, 615. 
 Udncy v. Kast India Co, 110, 206, 
 Uhlborn v. Ciinpninn, 3. 
 Undersliell v. Fuller, 166. 
 Underwood v. Parka, 725. 
 
 V. Sec. of State of India, 
 
 230. 
 Ungcr V. Crosb}'-, 111. 
 Unite V. Ilunipiirey et al, 97. 
 United Stales of America v. McRae, 267 
 Unwin v. Adams, 319. 
 
 et -1 V. St. Quentin, 725. 
 
 Upper V. ...cFarland et al, 28. 
 Urquhart v. Dick, la, 50, 53. 
 
 Vail V. Noble et al, 728. 
 Vftissier v. Alderson, 678, 679, 
 Vallanco v. Adams, 143. 
 
 V. I'A-ans, 711. 
 
 VnnAllan v. Wiyle et al, 336. 
 Vance v. O'Connor, 20. 
 
 ct al V. Wray, 106. 
 
 Vandeleur v. Smith, 24, 516. 
 Vane v. Whittington, 278. 
 VanF,very v. Drake, 649. 
 Vanlloff V. lloerster, 267. 
 VanNatter v. The Buffalo and Lake 
 
 Huron Railway Co. 731. 
 VanNorman v. Md'nrty, 364. 
 
 V. McLennan, 670, 671. 
 
 Van Nyvel v. Hunter, 424. 
 Vansandau et al v. Nash, 668. 
 Vansittart v. Taylor, 334. 
 VanWickle v. Chaplin, 630. 
 Varley et al v. Leigh, 581. 
 
 V. Manton, 95. 
 
 Vaughan v. Browne, 116, 
 
 V. Glenn et al, 96, 708. 
 
 V. Harris, 636, 
 
 V. Hubbs et al, 8, 109, 
 
 V. Roso et al, 682, 
 
 V. Wilson, 194. 
 
 Veale y. Warner, 225. 
 Verbist v. Dekeyser, 158, 
 Vere et al v. Carden, 156, 
 V, Goldsborough, 141, 147, 
 
 Verey v. Cnrew, 177. 
 Verity v. Wild, 652. 
 Vernon v. Hodgins, 625. 
 
 V. Shipton, 724, 
 
 Vicarage of Orton, In re, 400. 
 Vidi V. Smith et al, 474. 
 Vigirs V. Aldricli, 380. 
 Villosboisnet v, Tobin et al, 204, 266, 
 
 418. 
 Vilmott V. Barry, 636. 
 Vivian v, Jenkin et al, 128. 
 Vollum V. Simpson, 142, 143. 
 Vorley v. Barrett, 172, 180, 183, 
 Vrooman v. Shuort, 282. 
 
 V. Vrooman, 523. 
 
 Vyse V. Wakefield, 108. 
 
 Waddell v. Corbett ct al, 51, 145. 
 
 Waddy v. Barnett, 330. 
 
 Wade V. Simeon, 64, 91, 163, 285, 578, 
 
 685. 
 Wadsworth v. Bentley, 726, 
 
 V. Marshall, 688. 
 
 tfe Queen of Spain, In re, 
 
 404. 
 Wadman v. Calcraft, 556, 
 Wagner' V. Mabrle, 117. 
 Walnwright v. Bland et al, 083. 
 Wakefield et al v. Bruce, 477, 479. 
 Wnkeloy v. Teesdale, 19, 20, 24. 
 Wakeling v. Watson, 50. 
 Wakeman v. Robinson, 724. 
 Wakley, Ex parte, 256. 
 
 V. Froggatt, 169, 175. 
 
 Walcott V. Stolicker et al, 335. 
 Waldron v. Parrott, 283, 405, 
 Walkem v. Donovan, 599. 
 Walker v, Brogdin, 106, 108. 
 
 ■ V. Catleo, 166. 
 
 V, Court, 84, 
 
 V. Fairfield, 375. 
 
 V. Gardner, 637, 
 
 V, GoUing, 190. 
 
 et al V. Hawke, 131. 
 
 V, Jones, 91, 722, 
 
 V. Lane, 323. 
 
 V. Lumb, 31. 
 
 V. Medland, 27. 
 
 V. Mellor, 7 1 5. 
 
 V. Minchin, 246. 
 
 V. Needham, 199, 498. 
 
 V. Thelluson, 412. 
 
 Wall V. London and South AYestern 
 Railway Company, 325. 
 
 V. Lyons, 72, 312. 
 
 Wallace v. Acre, 608. 
 
 V. Arrowsmith, 667. 
 
 V. Brockley, 637. 
 
 iiii: 
 
TABLE OF OASES CITED. 
 
 Ixxv 
 
 i Wallace v. Frnzor, 61, f.5, 07. 
 — V. (j rover et al, 158, 
 I^Vllllbrklge v. Hrown, 599, 
 jWallcn V. Smith, 420. 
 pVnller v. Joy. 73. 
 IWallinif V. Uilliamson, 434, 
 rnlliiigtou V. (iiirney, 727. 
 IWuUis et al v. Hroadbent, 714. 
 V. Hirsch, 233. 
 
 — V. Littell, 713. 
 i^'^alloss V. Irwiii, ll)i. 
 
 i''alliK>ol V. Kiiiij, 177. 
 Cnlslmm v. Stnintoii, 260. 
 rnltcr V. Do Hichemoiit, 673. 
 [Valton V. Iiornnrd, 3(13. 
 V. Chandler, 637. 
 
 V. llayward. 342. 
 
 — V. The Universal Salvage Co. 
 21. 
 
 rnnscll V. Soutlnvood. '222, 249. 
 rarbiirton v. Storr, 246. 
 iTnrd v. ]',<■]], 7o9. 
 
 — V. Un>oinhea(!etal,379,380,657 
 
 — v. Krecnian, 534. 
 V. (JraysK.ek, 92, 97, 709. 
 
 V. Grcirg, 14. 
 
 V. Harris, 01. 
 
 ot al v. Lowndes, 461, 462. 
 
 ■ V. iManaulaj- et al, 780. 
 
 V. I'carson, 71, 310. 
 
 & The Sceretary of State for 
 
 AVar, In re, 241. 
 
 ■ et al V. Sex-iiuith, 8, 109. 
 V. Skinner, ','>'). 
 
 — v. Vanee, 3yi, 396, S97. 
 Jnv'\Q V. Hill, 325. 
 tlTariier v. 151aeklock, 153. 
 
 — .1' Powell, In re, 228. 
 
 Warre et al v. Calvert, 714. 
 Warren v. De Burgh, 664. 
 V. Kirby, 118. 
 
 V. Love, 59, 60, 626, 637. 
 
 V. JIunroe, 473, 
 
 V. Smith, 327. 
 
 rarringtou v. Leake, C4. 
 i^arwiek v. Hooper, 474. 
 
 • V. Ilogers et al, 314. 
 
 ., — ^_._ — — , 
 
 iV'ashbourn v. Burrows, 131, 163. 
 R'ashburn v. Longley, 434. 
 iV'aterman v. Carden, 157. 
 KVaters v. Shade, 362, 363. 
 
 y V. Weatherby, 325. 
 
 [SVatkin v. Hall, 726. 
 r'atkins v. Bensuson, 138. 
 V. Giles, 329. 
 
 — V. Lee, 723. 
 V. Jlorgan, 101. 
 
 KVatson V. Abbott, 199, 498. 
 
 Watson V. Alcock, 175. 
 
 V. Beaven, 241. 
 
 V. Bennett, 230, 239, 241. 
 
 V. Black, 222. 
 
 et al V. Brewer, 512, 524. 
 
 ■ et al V. Clooney, 534. 
 
 V. Coleman, 12, 13. 
 
 V. Dow, 62. 
 
 V. Garrett et ol, 699. 
 
 V. Gas Co. 163. 
 
 V. Kennelly, 108. 
 
 V. Lane, 336. 
 
 V. Maskell, 652. 
 
 V. Quilter, 190. 
 
 V. Scarlett, 627. 
 
 V. The Mid Wales Co. 174, 180. 
 
 Watt V. George, 146. 
 
 Watts V. Jefferyes, 367. 
 
 V. Lyons, 295, 
 
 et ux. V. Porter, 395, 396. 
 
 V. Shuttleworth, 173. 
 
 AVaugh et ux. v. Bussell, 720, 
 Weaver v. Lloyd, 103, 
 AVebb V. Adkins, 94. 
 
 et ux. V. Cowdell, 84. 
 
 V. Hill et al, 308. 
 
 V. Ilurrell, 404. 
 
 V. Lawrence, 3, 60, 101. 
 
 V. Page, 125, 727, 728, 
 
 V. Taylor, 222, 223. 
 
 V. Tripp, 724. 
 
 AVebber v. Fitzger.-dd, 6S3. 
 
 V. Lee, 220. 
 
 V. RiclKards, 728. 
 
 V. Sparkes et al, 128. 
 
 AVebster v. Emery, 119. 
 
 V. Gore, 10, 510. 
 
 et al v. Ilarsburgli, 519, 520. 
 
 V. AVatts, 158. 
 
 V. AVebster, 392, 395. 
 
 AVeeding V. Aldrich, 133. 
 AVeedon v. AVoodbridge, 94, 713. 
 AVeeks v. Argent, 717. 
 
 V. Wray, ((3, 446, 703. — 
 
 AA''eston et al v.Woudcock et al, 97,709. 
 AVelch V. Vickery, 651, 
 AVelland Railway Co. v. Blake.l 57,715 
 AVeller et iix. v."^Baker, 87. 
 
 V. Goyton et al, 68. 
 
 V. AVallace et al, 18, 
 
 AVeller's Bail, 664, 665. 
 AVellington v. Archers, 493. 
 AVells V. Crirling, 717. 
 
 V. Gzowski et al, 213, 214, 215, 
 
 228. 
 
 V. Secret, 111. 
 
 AVelsh V. Lywood, 663, 
 
 et al V. O'Brien at al, 643, 
 
li'j r,:' 
 
 i I ■ 
 
 Izzvi 
 
 TABLE OP OASES CITED. 
 
 West V. Cooke, 633. 
 
 V. lIoliDOs, 2ti5, 612. 
 
 V. ^■il)bsetnl, 149, 150. 
 
 V. Itudforcl, 111. 
 
 —.— V. Sutton, 412. 
 Westldko V. Abbott, 148. 
 Westli'V V. Jonc'8, 18. 
 ■\Vestoby v. l)(iy, 4(i3, 404. 
 Weston V. Foster, 713, 718. 
 
 V. Sliecham, (533. 
 
 WcttenluiU v. Grnlmin, 1C8. 
 Wliulo V. Lenniu et al, 140. 
 Whaley V. Lan-,', 421. 
 Whnlley, In re,'e88. 
 
 V. I'l'iiper, 723. 
 
 Whurton v. Kiuj,s 223. 
 Wlmteley v. Crawford, 259, 2C8. 
 
 V. Crowtcsr, 204. 
 
 Wlmtly V. Morlnnd, 226. 
 Wheatc-roft v. Foster, 212. 
 Wheutloy v. Golney, 75, 81. 
 
 • V. Lane, 412. 
 
 I'atriek, 723. 
 
 Wheeler et al v. Uavidgo, 95. 
 
 V. Green, 704. 
 
 it Murphy et nl, In re, 230. 
 
 et ux. V. Stevenson et al, o5i>. 
 
 V. Wliitmore, 047. 
 
 WlieeUon et al v. Ilardlsty et nl, 336. 
 Whelpdide's Case, 720. 
 
 Wlieston V. Paekman, 56. 
 Whipple V. Mauley, 92, 93. 
 Whitaker v. Crocker, 20. 
 
 V. Edmunds, 719. 
 
 White V. Boulton. 117. 
 V. Bret, 44. 
 
 V. Chirke, 286. 
 
 V. Cocldin,525. 
 
 • V. Farrar, 93. 
 
 V. Felthani, 100. 
 
 V. CJascoiue, 78. 
 
 V. Gascoyno et al, 75. 
 
 V. Lord, 496. 
 
 V. Neeld, 106 
 
 V. Fetch et al, 381. 
 
 V. Friekett, 424. 
 
 et al V. Shire, 324, 325. 
 
 V. Soutii Eastern R. Co., 320. 
 
 V. Storey, 274. 
 
 V. Teal, 724, 728. 
 
 V. Watts, 259. 
 
 V. White, 031. 
 
 Whitehead v. Brown, 324. 
 
 et al V. Firth, 227. 
 
 V, Fothergill et al, 23. 
 
 V. Harrison, 91, 158, 722. 
 
 V. Minn, 662. 
 
 Whitehousc et al v. Hemmant, 252. 
 
 Whitohouso V. Roats, ISO. 
 Wiiitelaw v. Davidson, 318. 
 Whitoworth v. lluiiiplirics, 519. 
 Whitey et ol v. Wliitey, 04. 
 Whitmoro ot al v. (Jreeno et al, 726. 
 
 .. V. Nicholls, 165. 
 
 V. Williams, 635. 
 
 Whittaker ct al v. Mason, 131. 713. 
 Wliittall V. Campbell, 032. 
 Whitting V. Des An^jes, 79. 
 Whittingham v. Bloxhain, 295. 
 Whittle V. Oldaker et al, 660. 
 Whitwell V. Seheer, 73, 3(t9, "Al, 31.3, 
 Whyman v. Garth, 299. 
 Whyto V. Treadwell. 357. 
 Wiiytehcad, In re, 017. 
 Wiekens v. Steel et al, 70, 72, 76, 77. 
 Wicket et nl v. Crciner, 179. 
 Wickham et al v. New Brunswick and 
 
 Cnnnda Railway Co. et al, 3,") 2. 
 Wicks V. Grove, 315. 
 
 V. Maenamara et nl, 629. 
 
 Wigden v. Birt, 082. 
 
 Wiggins V. Stephens, 668. 
 
 Wilby V. Elston. 726. 
 
 Wilco.x V. Montgomery, 163, 729. 
 
 Wild V. Ilillas, 175. 
 
 Wilder v. Hopkins, 631. 
 
 Wilkes V. Hopkins, 278. 
 
 V. The Hungertbrd R. Co., 72J, 
 
 V. Wood, 622. 
 
 Wilkie V. Gipson, 330. 
 
 Wilkin V. Reed, 315, 319, 321, 322. 
 
 Wilkins v. Blacklock, 148. 
 
 V. Bromhead, 336. >, 
 
 V. Canty, 194. 
 
 V. Jones, 19, 20. 
 
 V. Feck, 226. 
 
 V. Perkins, 551. 
 
 V. Ferry, 7i)9. 
 
 Wilkinson v. Britton. 704. 
 
 V. Edwards, 422. 
 
 - V. Kirby, 128, 129, 525,6511 
 
 567. 
 
 V. Page, 158. 
 
 V. Sharland, 102, 103, 16!| 
 
 315, 316. 
 
 V. Small, 98, 140, 
 
 V. Time, 248. 
 
 V. Traxton, 574, 575, 
 
 V. Williats, 331. 
 
 158. 
 
 Willard v. Woolcott, 318, 353. 
 Willcox <fe Storkey, In re, 241. 
 Williams v. Andrews, 647. 
 
 V. Archer, 400, 407. 
 
 V. Breedon, 533. 
 
 V. Bryant, 9, 60, 721. 
 
 V. Cloush, 680. 
 
TABLK OF CASES CITIO). 
 
 Ixxvii 
 
 18. 
 
 •H, 610. 
 
 «i. 
 
 ot nl, 12(5. 
 
 15. 
 
 135. 
 
 ,, 131,713. 
 
 12. 
 
 7'J. 
 
 11, 295. 
 
 , 11(10. 
 
 sou, SI 1, 313. 
 
 70, 72, 70, 77. 
 
 , 170. 
 
 15ruiir4wi('k and j 
 o. et 111, 3.V2. 
 
 b al, 629. 
 
 108. 
 
 f, 103, 729. 
 
 11. 
 
 ■ford U. Co., 72o. "f 
 
 319,321,322. 
 148. 
 330. 
 
 20. 
 
 51. 
 
 9. 
 
 701. 
 iB. 422. _ _ , 
 128, 129,520, aoh 
 
 [■\Villi;iiiis V. Crosslin^, 633. 
 . V. (irovi'H, l?.. 318. 
 . V, ( Jossoii, 275, 
 
 ■ V. llii,'i,'s, 109. 
 . V. Ilockin I't 111, 681. 
 
 • V. I.co, -h2, 280. 
 
 ■ V. MDi'tiiiHT, 618. 
 
 • V. MoHtvn. 727. 
 
 ■ V. Ui'cvVs, 393. 
 . V, UobtTta, 179. 
 
 V. Sidiiioiilii K. & Harbour 
 
 C'o.,'115. 
 
 V. Strnlin. 0'3. 
 
 V. The African [Steam Navi- 
 
 tjatidii Co., 71(1. 
 
 L't 1,1 V. The Groat "Western 
 
 K. Co.. l'.:S, lit, tOl. 
 
 V. The Lorils Comniiasioners 
 
 of llio AdiiiiniUy, 21. 
 - V. TiionuiH, 2'.tl. 
 . el, 111 V. ViiK'fietnl, 130,708, 
 7i:i, 710. 
 
 V. Webb, 674. 
 
 V. Wclcli ot al, 47, 413. 
 
 V. "Williaiiu-. 27, 50, 60, 271, 
 
 :s;i. 
 liK.Mi.son V. i\Ifii;:;a, 2(). 
 
 V. I'ii-i.-, 255. 
 
 Tillis, In re, 199. 
 V. ]{all, 078. 
 V. Uciiiiett, 047. 
 V. llallctt, 158. 
 
 ;(•« V. M('rret(,'ii, 430. 
 
 -^- V. reekliimi, 703. 
 
 Will< V. Dawson, 080. 
 *!».— V. llobinHon, 138, 147. 
 Willnii.j,liby V. Willou-^-hby, 235. 
 WiliiiMt V. Marinion, 20. 
 Wil^-<ul V. Anius, MO. 
 
 V. Hairii, 337, 609, 518. 
 
 — V. Bird, 279. 
 
 — V. Wakey, 079, 681. 
 
 et al V. BVad9loeke,99, 622, 688. 
 V. liroiigliton, 42,3. 
 et al V. Corporation United 
 Counties of Huron and Bruce, 391, 
 3'.i3. 
 
 — V. Clianton et al, 637. 
 V. Doolan, 220. 
 V. Tarr, 378. 
 V. Gabriel et al, 180. 
 V. Janiieson, 408. 
 V. Kerr et al, 204. 
 et al V. King, 219. 
 V. Lancashire <fe Yorkshire R; 
 
 Co., 338. 
 
 V. McCallough, 
 V. Morrell, 247. 
 
 727. 
 
 Wilson V. MouldH, -US, 4"0, 
 
 V. Nortlio|i. 61, 055. 
 
 V. Kastall, 30S. 
 
 V. Uobin^-oii, 720. 
 
 V. Storey, 49. 
 
 V. Tiio Caledonian R. Co., 22. 
 
 V. The Detroit tt Milwaukee 
 
 U. Co., 21, 22. 
 V. The Aiuniciiinl CViuncil of 
 
 Port Hope, 64. 
 
 V. Thompson, 106, 
 
 V. Thorpe, 185, 202. 
 
 et nl V. Traill, 487. 
 
 V. Tucker, 620. 
 
 V. Westbrooke, 327. 
 
 V. Wilson, 717. 
 
 V. Wymonsold, 110. 
 
 Wilson's Bail, 005. 
 AVilton V. Chambers, 679. 
 Wiinshurst v. Deeley et al, 9i». 
 Winderbottom v. Lord Derby, 142. 
 Windham v. Fenwick, 3. 
 Winn V. Rose, 205. 
 Wiiijienny v. Bates, 245, 240. 
 AViiiter v. Lcthbridge, 225. 
 
 V. Lightbound, 408. 
 
 V. White, 223. 
 
 Winterbottom v, Lees, 112. 
 Winterburn v. Brooks et al, 310. 
 Wintlo V. Williams, 398, 399. 
 Wise V. Berkenshaw, 395, 399. 
 
 V. llewson ct al, 420, 429, 434. 
 
 Wodehouse et al v. Farebrother, 170. 
 Wolfe V. Collingwood, 35. 
 
 WoUen V. Smith, 117. 
 Wolley V. Bole, 200. 
 Wolverhampton New Water Works 
 
 Co. V. Hawkesford, 107, 202. 
 Wood V. Bellisle et al, 03.'!. 
 
 et ux. V. Bletchcr, 120, 710. 
 
 V. Bowden, 336. 
 
 et al V. Campbell, 353. 
 
 q. t. V. Cassin, 672. 
 
 V. Closter, 247. 
 
 V. Connop, 146. 
 
 V. Cox, 251. 
 
 V. Duncan, 649. 
 
 V. Dunn. 308, 395, 403. 
 
 V. Dwarris et al, 172, 132. 
 
 V. Finnis, 85, 379, 388, 409. 
 
 V. Harding, 51, 28.3. 
 
 V. Hothani, 22(). 
 
 V. Hume, 49, 50. 
 
 V. Leake, 221. 
 
 V. Morewood, 253, 
 
 V. O'Kelly, 227. 
 
 V.Peyton, 128. 
 
 et al V. Riley, 632. 
 
Wl" 
 
 
 Ixxviii 
 
 tAble of oases cited. 
 
 v.: 
 
 ■yVood ct nl V, UoHS et nl, 174. 
 
 V. Uowcliire, 405. 
 
 V. Silluto, 4'.'r., 4'liS. 
 
 V. Tho I'oiipur Minors' Co., 04, 
 
 171. 18(1, 184. 
 and the .Sccretdry of State for 
 
 War, in re, '241. 
 — — V. Wooil, o07. 
 Woodburv ct ux. «nil Mnrelmll, In ro, 
 
 509, 571. 
 Woodcock V. Kelly, 9. 
 
 I't ul V. VVorthington, 275. 
 
 ■VVoodcroft ife .loiies. In ro, 246, 247. 
 \\'ood^:iitc V. Kimtchbull, .'J88. 
 Woodliouso V. Woods ct nl, 440, 704. 
 Woodlcy V. Woodlcy, (S31. 
 Woodman v. (ioblu, l.")5. 
 Woodrull'ct nl v. Davis, 728. 
 Woodward v. North, 687. 
 Woodycr v. Treshani, lUG. 
 Woof V. Hooper, 711. 
 Woollett, In ro, 14. 
 Woolcv V. Aldritt, 280. 
 .' V. I'oU), 277. 
 
 V. Tho North London R. Co., 
 
 27(1, 277. 
 
 Woolf V. City Steamboat Co., 9. 
 
 Woolly V. Twedle, 677. 
 
 Woolner ct al v. Dovorcux, 253, 275. 
 
 Woosnaiii v. I'rico, 685. 
 
 Worley v. Glover, 18. 
 
 ' V. Harrison ct nl, 717. 
 
 V. Loo, 97. 
 
 Worlison's Hail, 666. 
 Worrall v. (Irayson, 71S, 710. 
 Worten v. Sinilh, 55. 
 
 Worth V. Terrington et nl, 152. 
 Wortlmin v. Tuck, 639. 
 Worthington et nl v. Hulton, 461. 
 
 V. Tedcn et nl, 395. 
 
 V. Wigley, 93, 287. 
 
 Wortley v. Knynor, 75. 
 Wright, In re, 617. 
 
 — V. Beckett, 804. 
 
 — — — V. Burroughes et nl, 117. 
 ■ V. Clements, 161. 
 
 ct al nnd Corporation of the 
 
 County of Groy, In re, 247, 
 V. Goddard et nl, 122. 
 
 — V. Goodlake et al, 266. 
 
 — et nl V, Hull, 60, 620, 673. 
 
 — V. Jclley, 175. 
 
 — V. Johnson, 669, 672. 
 
 — V. Lnmson, 72;t, 727. 
 
 — V. Landell, 318. 
 
 Wright V. Mnrrnlls, 310, .•?2l, 
 
 V. Mcriierson et al, 280. 
 
 et nl V. Millrt, 188, 650. 
 
 — — — V. Morrey, 200. 
 
 V. Newton, 714. 
 
 V. i'errcrs, 93. 
 
 V. Sharp, 533. 
 
 V. Skinner, 194, 334, 336. 
 
 V. Tallis ct al, 470. 
 
 ct al V. Tucker, 608. 
 
 et nl V. Welbio, 72U. 
 
 V. Wilcox, 295. 
 
 Wyatt V. Gerry, 19. 
 
 V. Nicholls, 831. 
 
 V. I'rebble, 686. 
 
 V. Stockcn, 286. 
 
 Wyld V. I'ickford et ul, 133. 
 Wylio V. Birch, 727. 
 Wyllioetnl v. Phillips. 13. 
 Wynn v. Nicholson, 229. 
 — — V. Pahuer, 75. 
 
 Yardley v, Jones, 11, 63. 
 Yateman v. Distin, 141, 142. 
 Yates V. Aston, 716. 
 
 V. Meehan, 374. 
 
 V. Nash, 713. 717. 
 
 V. Tearle, 127. 
 
 Yglcsias et al v. Tho Royal Exchange 
 
 AHSurancc Corporation, 700. 
 Yorke v. Ogden et al, 659. 
 Yondo V. Youde, lOO, 031. 
 Youens v. Keen et al, 554. 
 Youlton V. Hall, 53. 
 Young, Ex parte, 616. 
 
 V. Collet, 179. 
 
 et nl V. Cooper, 724. 
 
 V. Crompton, 12, 14. 
 
 V. Crooks, 340. 
 
 V. Hichens, 730. 
 
 V. Higgin, 448. 
 
 V. Iliggon, 703. 
 
 V. Homier, 301. 
 
 et nl V. Laird, 283. 
 
 V. Rishworth, 633. 
 
 et al V. Scobie, 609. 
 
 V. AValter, 219. 
 
 V. White, 474. 
 
 Younge v. Fisher, 283. 
 
 Zachary v. Shepherd, 228. 
 Zarifi V. Thornton, 204. 
 Zavitz V. Hoover et al, 310, 353. 
 Zychlinski v. Maltby, 263. 
 
[il Exchange 
 
 T. A B L E 
 
 SHOWING SFXTIONS OF THE ENGLISH C. L. P. ACTS 
 (15 & 10 Vlo. call. 7(1, una 17 & 18 Vic. cap. 125) 
 
 EMIJODIKD IN THE ACTS ANNOTATED IN THIS WOinC. 
 
 ITIk' i-.iiTi'tiiDmliii;} sectloua of tliu Ciiim'lliin Ai^ts am imllcatud, ftnd the pago of this volume. 
 
 ENGLISH C. L. P. ACT 15 it 10 Vic. cap. 70. 
 
 IEm^'. C. I.. P. Act 
 1 J & liJ Vic. 
 
 Con. Stat. U. C. 
 
 ^»p. 7C, sec. 1 1 
 
 " " 2 
 
 " " 8 
 
 " " 51 
 
 Cnp. 22, 800. 2 
 " 9 
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 10, 
 
 11 
 
 12 
 13 
 14 
 16 
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 17 
 
 18 
 
 19 
 20 
 21 
 22 
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 15 Hi 10 Vic 
 
 Vut 
 
 Con. StJit. U. 0, 
 
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 70 
 
 72 
 
 72 
 
 74 
 
 74 
 
 76 
 
 77 
 
 82 
 
 80 
 
 84 
 
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 195 
 
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 203 
 
 203 
 
 204 
 
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 206 
 
 207 
 
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 167 
 
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 92 
 
 93 
 
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 .'12 
 110 
 113 
 113 
 
iiiiif. 
 
 1 
 1 
 
 Ixxs 
 
 TABLE OF SECTIONS. 
 
 Vi! 
 
 ^''!' 
 
 Eug. C. I.. P. Act 
 15 & 10 Vic. 
 
 Con. Stat. U. C. 
 
 Page. 
 113 
 
 Eng. C. L. p. Act 
 15 & 10 Vic. 
 
 Con. Stat. U. C. 
 
 Page, 
 
 Cap. 76 
 
 , soc. 66 
 
 Cap. 22, sec, 95 
 
 Cap. 76 
 
 sec, 118 
 
 Cap.22, 
 
 sec. 199 
 
 280 
 
 
 " 67 
 
 " 96 
 
 114 
 
 «< 
 
 " 119 
 
 (( 
 
 " 200 
 
 280 
 
 
 " 68 
 
 " " 97 
 
 115 
 
 (( 
 
 " 120 
 
 
 
 
 
 " 69 
 
 " " 98 
 
 116 
 
 (( 
 
 " 121 
 
 it 
 
 " 247 
 
 354 
 
 
 " 70 
 
 " 99 
 
 118 
 
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 " 122 
 
 
 
 
 
 " 7.1 
 
 " " lul 
 
 121 
 
 if 
 
 " 123 
 
 
 
 
 
 " 72 
 
 " 100 
 
 123 
 
 tt 
 
 " 124 
 
 tt 
 
 " 219 
 
 355 
 
 
 " 73 
 
 " " 102 
 
 123 
 
 It 
 
 " 125 
 
 ;t 
 
 " 250 
 
 358 
 
 
 " 74 
 
 " " 103 
 
 125 
 
 (i 
 
 " 126 
 
 it 
 
 " 274 
 
 379 
 
 
 " 75 
 
 " " 104 
 
 126 
 
 (( 
 
 « 127 
 
 
 
 
 
 " 76 
 
 " 105 
 
 129 
 
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 " 128 
 
 14 
 
 " 301 
 
 408 
 
 
 " 77 
 
 " " lOfi 
 
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 " 78 
 
 .< JQ7 
 
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 410 
 
 
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 " 108 
 
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 " 304 
 
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 •" 81) 
 
 " l(i9 
 
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 , ( 305 
 
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 411 
 
 
 " 81 
 
 " " 111) 
 
 136 
 
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 " 121 
 
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 " 82 
 
 "HI 
 
 145 
 
 
 
 
 -112 
 
 
 " 83 
 
 " 114 
 
 148 
 
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 " 132 
 
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 " 311 
 
 414 
 
 
 " 84 
 
 ni2 
 
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 " 3(18 
 
 413 
 
 
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 152 
 165 
 
 
 
 
 
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 192 
 
 
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TABLE OF SECTIONS. 
 
 Ixxxi 
 
 EnK. V. L. r. Act 
 15 & U Vic. 
 
 3ap. 1C, sec. 163 
 « .< 164 
 
 " 165 
 
 " 166 
 
 " 167 
 
 " " 168 
 
 " " 169 
 « « 170 
 
 " 17) 
 
 " 172 
 « 173 
 
 " " 174 
 
 " 175 
 
 " 176 
 
 " 177 
 
 " " 178 
 
 " " 179 
 
 " " 180 
 
 " 181 
 
 " " 182 
 
 " 183 
 
 " 184 
 
 " " 185 
 
 " 186 
 
 " 187 
 
 " 188 
 
 " 189 
 
 " " 190 
 
 " " 191 
 
 " " 192 
 
 " " 193 
 
 " " 194 
 
 " " 193 
 
 " " 196 
 
 " " 197 
 
 " " 198 
 
 " " 199 
 
 " 200 
 
 Con. Stat. U. C. 
 
 Cap. 
 
 
 27, sec. 1 
 2 
 
 3 
 
 6 
 
 7 
 
 8 
 
 " 9 
 
 " 11 
 
 " 12 
 
 " l:i 
 
 " 14 
 
 " 15 
 
 " 16 
 
 " 20 
 
 " 21 
 
 " 23 
 
 " 24 
 
 " 25 
 
 ( 26 
 
 " 27 
 
 " 28 
 
 " 29 
 
 " 30 
 
 " 31 
 
 « 32 
 
 " 33 
 
 " 34 
 
 " 35 
 
 " 36 
 
 j37 
 
 ( 88 
 
 " 39 
 
 " 40 
 « 41 
 
 " 42 
 
 Page. 
 
 507 
 
 609 
 510 
 513 
 516 
 517 
 518 
 521 
 522 
 523 
 5 '24 
 524 
 525 
 528 
 529 
 530 
 531 
 532 
 532 
 534 
 567 
 535 
 536 
 637 
 638 
 538 
 539 
 640 
 540 
 541 
 542 
 543 
 543 
 544 
 544 
 543 
 645 
 
 Eng. C. L. P. Act 
 15 & 16 Vic. 
 
 Con. Stat. U, 
 
 Cap. 76, sec. 201 
 " " 2'"»2 
 203 
 204 
 205 
 206 
 207 
 208 
 209! 
 
w 
 
 
 i 
 
 f 
 
 m 
 
 Ixzzii 
 
 TABLE OP SECTIONS. 
 
 ENGLISH C. L. P. ACT 17 & 18 Vic. cap. 125. 
 
 Bng. C. L. P. Act 
 
 17 & 18 Vic. 
 
 Cap. 126, sec. 1 
 
 " " 2 
 
 •' 3 
 
 «' " 4 
 
 •• 6 
 
 " 6 
 
 (< i( h 
 
 " " 8 
 
 « « 9 
 
 •" 10 
 "11 
 
 « j2 
 
 " 18 
 
 " 14 
 
 " 15 
 
 " 16 
 
 " 17 
 
 " 18 
 
 " 19 
 
 " " 20 
 
 " " 21 
 
 II 11 i>i) 
 
 II II OQ 
 
 II II 24 
 
 " " 25 
 
 " " 26 
 
 " •' 27 
 
 II II og 
 
 " " 29 
 
 " " 30 
 
 II 31 
 
 (I U OQ 
 
 " 33 
 
 II 34 
 
 " 35 
 
 " 86 
 
 .1 37 
 
 " 38 
 
 " " 39 
 
 " " 40 
 
 I. 41 
 
 II II 42 
 
 " 43 
 
 « .< 44 
 
 " 45 
 
 « 4(j 
 
 Con. Stat. U. C. 
 
 Cop. 22, seel R8 
 
 " 159 
 
 " 162 
 
 " " 160 
 
 " " 163 
 
 " 164 
 
 " " 165 
 
 " 166 
 
 II igY 
 
 " 168 
 
 " " 169 
 
 " " 170 
 
 (171 
 
 \ 172 
 
 (173 
 .1 174 
 
 (176 
 
 \ 177 
 
 (l78 
 
 " " 209 
 
 " " 208 
 
 214 
 215 
 210 
 211 
 212 
 289 
 213 
 
 231 
 
 232 
 183 
 184 
 
 Page. 
 
 209 
 212 
 218 
 213 
 220 
 228 
 230 
 231 
 232 
 235 
 237 
 238 
 239 
 240 
 241 
 242 
 243 
 245 
 246 
 291 
 290 
 
 302 
 305 
 295 
 297 
 298 
 896 
 300 
 
 334 
 
 251 
 252 
 
 EnR. C. L. P. 
 17 & 18 Vic 
 
 Act 
 
 Con. Stat. U. C. 
 
 Pago. 
 
 
 
 
 (185 
 
 254 
 
 Cap. 125, 
 
 sec 
 
 .47;Cap.22,8.-^ 186 
 
 255 
 
 
 
 
 (187 
 
 255 
 
 U 
 
 « 
 
 48 
 
 " 188 
 
 257 
 
 it 
 
 it 
 
 49 
 
 
 
 t( 
 
 it 
 
 50 
 
 " 189 
 
 258 
 
 t< 
 
 tt 
 
 51 
 
 " 190 
 
 262 
 
 it 
 
 it 
 
 52 
 
 " " 191 
 
 268 
 
 i( 
 
 ti 
 
 53 
 
 II II 192 
 
 269 
 
 ti 
 
 tt 
 
 54 
 
 
 
 It 
 
 it 
 
 55 
 
 " 193 
 
 270 
 
 ft 
 
 ti 
 
 56 
 
 " 194 
 
 271 
 
 (< 
 
 tt 
 
 57 
 
 " 195 
 
 272 
 
 a 
 
 tt 
 
 58 
 
 " 196 
 
 272 
 
 tt 
 
 ti 
 
 59 
 
 
 
 tc 
 
 tt 
 
 60 
 
 II II 287 
 
 389 
 
 ti 
 
 tt 
 
 61 
 
 " " 288 
 
 390 
 
 tt 
 
 ti 
 
 62 
 
 
 
 tt 
 
 tt 
 
 63 
 
 •' 290 
 
 398 
 
 tt 
 
 ti 
 
 64 
 
 II II 291 
 
 399 
 
 tt 
 
 tt 
 
 65 
 
 •1 II 297 
 
 403 
 
 tt 
 
 It 
 
 66 
 
 II II 298 
 
 404 
 
 tt 
 
 it 
 
 67 
 
 " " 299 
 
 404 
 
 tt 
 
 it 
 
 68 
 
 cap. 23, sec. 1 
 
 460 
 
 tt 
 
 ti 
 
 69 
 
 II II o 
 
 461 
 
 tt 
 tt 
 
 a 
 tt 
 
 70 
 71 
 
 I " "3 
 
 462 
 
 ct 
 
 it 
 
 72 
 
 K II 4 
 
 463 
 
 it 
 
 a 
 
 73 
 
 II 5 
 
 465 
 
 tt 
 
 it 
 
 74 
 
 <i II g 
 
 465 
 
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 a 
 
 75 
 
 II II 7 
 
 460 
 
 (t 
 
 ti 
 
 76 
 
 II II 3 
 
 468 
 
 it 
 
 ti 
 
 77 
 
 
 
 »( 
 
 ti 
 
 78 
 
 cap. 22,sec.300 
 
 405 
 
 (( 
 
 i» 
 
 79 
 
 cap. 23, sec. 9 
 
 468 
 
 tt 
 
 ti 
 
 80 
 
 .. iQ 
 
 471 
 
 it 
 
 tt 
 
 81 
 
 II 11 
 
 471 
 
 tt 
 
 tt 
 
 82 
 
 ns 
 
 472 
 
 
 
 tl3 
 
 475 
 
 tt 
 
 it 
 
 83 
 
 cap. 22, sec. 124 
 
 168 
 
 ft 
 
 tt 
 
 84 
 
 " 125 
 
 176 
 
 tt 
 
 tt 
 
 85 
 
 " 126 
 
 180 
 
 tt 
 
 ti 
 
 86 
 
 II 11 127 
 
 181 
 
 ft 
 
 it 
 
 87 
 
 
 
 ti 
 
 it 
 
 88 
 
 
 
 tt 
 
 a 
 
 89 
 
 
 
 tt 
 
 tt 
 
 90 
 
 ti ti 0*7^ 
 
 37S 
 
 it 
 
 it 
 
 91 
 
 " 310 
 ( 144 
 
 414 
 
 197 
 
 ti 
 
 it 
 
 92 
 
 \ 145 
 (146 
 
 1'j7 
 11"S 
 
 ft 
 
 it 
 
 98 
 
 cap, 27, sec. 76 
 
 bVo 
 
TABLE OF SECTIONS. 
 
 Isxxiii 
 
 u. c. 
 
 Page. 
 
 ( 185 254 
 
 \ 186 255 
 
 (187 255 
 
 ■' 188 257 
 
 Ki)^'. C. h. P. Act 
 17 & 18 Vic. 
 
 Con. Stat. U. C. 
 
 Page. 
 
 Eng. C. L. P. Act 
 17 & 18 Vic. 
 
 Con. Stilt. U. C. 
 
 Cap. 125, sec. 94 
 " 95 
 " 96 
 " 97 
 " 98 
 " 99 
 
 m. •' " 100 
 
 
 
 Cap.l25,sec.l01 
 
 « « 102 
 
 " " 103 
 
 " 104 
 
 " 105 
 
 " " 106 
 
 " 107 
 
 
 Page. 
 
 " 189 
 " 190 
 " 191 
 " 192 
 
 " 193 
 
 " 194 
 " 195 
 " 196 
 
 " 287 
 " 288 
 
 •' 290 
 " 291 
 " 297 
 " 298 
 " 299 
 i, sec. 1 
 
 II o 
 
 258 
 
 262 
 
 >»HI 
 
 263 
 
 .iW^m 
 
 269 
 
 "'mm 
 
 270 
 
 _"-^B 
 
 271 
 
 'iH' 
 
 272 
 
 '^^H 
 
 272 
 
 ;-;|H 
 
 (I 
 
 K 
 
 389 
 390 
 
 398 
 399 
 403 
 404 
 404 
 460 
 461 
 
 462 
 
 463 
 465 
 465 
 46o 
 463 
 
 sec.300| 
 sec. 9 
 10 
 11 
 
 tl3 
 
 sec. 124 1 
 
 125 
 
 126 
 
 127 
 
 405 
 
 468 
 
 471 
 
 471 
 
 472 
 
 475 
 
 168 
 
 176 
 
 180 
 
 184 
 
 " 273 378 
 " 310 414 
 ( 144 
 
 ■{ 145 
 
 ( 146 
 
 sec. 76 
 
 197 
 197 
 198 
 575 
 
I 
 
THE 
 
 lOMlIOI^ LAW PROCEDURE ACT. 
 
 COX. STAT. U. C— Cap. 22. 
 
 ^n ,lct to regulate the procedure of the Superior 
 Courts of Ccnmion Law and of the County 
 
 Courts, (a) 
 
 Her Majesty, by and with the advice and consent of the 
 igislative Council and Assembly of Canada, enacts as follows : 
 
 1. In the Superior Courts of Common Law and in the rinRos.s .md 
 junty Courts respectively, the process and proceeding shall In the '"^^ 
 as follows : (h) 
 
 (a) The modern plan of nnminjij a statute, found ao convenient in practice, has 
 pn followed in tliis act. In citinnr the act, it will be sutRcieut to use the 
 [)ression "The Common Law Procedure Act:" see bcciiou 346. 
 
 '(ft) This act, the origin of which in this Province is the Common Law Proce- 
 
 Jirc Act 1856, 19 Vic. cap, 43, is for the most part copied from the Imperial 
 
 taliites 15 & 16 Vic. cap. 76, and 17 <fc 18 Vic. cap. 125. These statutes were pre- 
 
 Bred upon the snj^gestions of the Common Law Commissioners, appointed by the 
 
 ^ncnn on tlie 13th Jlay, 1850, " to inquire into the Process, Practice and System 
 
 j>f I'lcading of the Superior Courts of Law at Westminster, <fec." On SOtli June, 
 
 isril, their first report was made, upon which the Statute 15 & 16 Vic. cap. 76, 
 
 ^as framed. On 30th April, 1853, their second report was made, which lead to 
 
 ie passing of the Stat. 17 & 18 Vic. cap. 125. The act invests the courts with 
 
 liuijfo discretion to do what justice requires: Mcssiler v. Eokc, 13 C. B. 165, ]^er 
 
 lai'\ is, C. J. Since the legislature lias abolished special demurrers, the courts 
 
 Ire bound to follow out that spirit and not give effect to mere technicalities: ]»r 
 
 ■Hock, C. B.. in Flowers v. Welsh, D Ex. 272. Scmlih, the English Statute of 
 
 iSrrJ is onfined to civil proceedings: Reginay. Scale, 24 L. J. Q,. B. 221, ptr 
 
 !auipboll, C. J. It has been held to apply to personal actions conmicnced in iiifc 
 
 ior courts, but removed into the anpcrior courts bv certiorari: Jlimfer v. Rose, 
 
 18 C. B. 162. 
 
m ■ 
 
 \\ i '-. 
 
 TTi;-. COMMON LAW PROCEDURE ACT. 
 
 ORIGINAL PROCESS. 
 
 [s. 
 
 All ftc'tiiins 
 IKit Iwil.'ililu 
 to Iji; (Miiii- 
 ini-nced liy 
 Sunimuns. 
 
 1.— NON-BAILABLE. 
 
 5j. (f) [Except in cases where it is intended to. hold the 
 Dufendiint to special bail,] {d) all personal actions (e), includ- 
 ing actions by or against 3Iembers of both Houses of the 
 Provincial Parliament, and Attorneys-at-Law, brought in the 
 siii'l Courts, when the Defendant is residing or supposed to 
 reside within the jurisdiction thereof (/) shall be commenced 
 by Writ of Summons, according to the Form A. No. 1, and, 
 ill every such Writ and copy thereof, the place and county (r/) 
 
 {<•) Taken from En^'. .Stnt. 13 & 16 Vic. cap. 16, s. 2. 
 
 (il) TliR words in braclcets are not in the English Aot. Defendants in tlie Pro- 
 ■Tincc of Ontiivii) inny b^ hold to special bail by a writ oi capias, which writ is for 
 all purposes the em inu-iieenient of the action, 
 
 (') Pcvmnid AvtiiiiiH (one of the three classes — real, personal and mixed — into 
 ■T%-lnc!li tietions have lieen divided) may be taken to mean those actions which are 
 brought for (he spccitic recovery of debts, damages, money, goods and chattels, 
 ■or wrongs dune to the person or property. The Statute U. C. 4 Wm. IV. cap. 1, 
 •8. 30 iCon. Slat. U. 0. cap. 27. s. 78), abolished all real and mixed actions, ex- 
 cept three, writ of dower, writ of dower nnde nihil hahct, and ejectment. The 
 dUtinetion between the two former has since been praetieidly removed. Our 
 cr.iietiiient of 4 Win. IV. cap. 1, s. 30, was adopted from Eng. Stat. 3 <fe 4 "\Vm. 
 I V. cap. 27, s. 3t>. The l]ngUsh act saves a fourth action which has never been in 
 use ill thi.* Province, (//(arc irnpciUt. This section clearly docs not apply to dower; 
 Flulur V. Grace, U. C. Q. B. Hilary Term, 1SG9. 
 
 ( /') The territorial jurisdiction of the common law conrts, both of superior 
 and inferior jiirisdiet ion, may not be inaptly mentioned here. The common law 
 cnnrts of su[ierior jurisdiction are two, the Queen's Bench and the Comninn 
 Pleas. The former was the first court established ir Ujjper Canada, now Ontario, 
 with power to liold plea " in all and all manner of actions, canses or suits, as well 
 criminal as civil, real, personal and mixed, arisiiui, happeninp or bcbi;/ in the 
 rrimvcv" {Upper Canada): Stat. 34 Geo. III. cap. 2, s. 1. Therefo'-e, territo- 
 rially considered, this court received jurisdiction extending over the whole of 
 Upper O'lnada. The jurisdiction exercised or enjoj-ed by the conrt of Queen' 
 Bench is exercised and enjoyed by the Common Pleas. Both courts in this n 
 spect at lei.st have clearly a co-ordinate jurisdiction. 
 
 (//) The word "place" is of doubtful meaning, as a]iplied this Province. Stct. 
 12 Vic. cap. 63, s. 22, required " the city, to\vu or township and county," to be 
 mentioned. The question is, whether " jilace" is to be construed to mean city, 
 town or tow.iship, or a more speeitic description, as street and number of house. 
 \n England, iho descriptions are usually very precise. But it may be mentioned 
 tliat the words "'place and county" were used in Eng. Stat. 2 Wm. IV. cap. lU), 
 s. 1, and that our Prov. Stat. 12 Vie. caj). 63, s. 22, was copied from the latter 
 acr: but the legislature omitted the words "place and county," substituting 
 " ciiy, town or township, and county." Even in the C. L. P. A. there seems to 
 be a legislative exposition of the word " place." It is provided by section \">, 
 that if the plaintitF sue out a summons in person, the name of the city, town, In- 
 corporated or other vil'age, or toKmhip, within which he resides, shall bo indorsed 
 
[8.2. 
 
 .hold the 
 ;), includ- 
 es of the 
 ;ht in the 
 pposed to 
 )mmenced 
 0.1, and, 
 
 in the Pro- 
 I writ is for 
 
 nixed — into 
 s which are 
 p.d cliattuls, 
 , IV. cap. 1, 
 actions, ex- 
 nient. The 
 loved. Our 
 1 3 tfe 4 Wm. 
 k'er been in 
 to dower; 
 
 of superior 
 ommon law 
 Common 
 ow Ontario, 
 nits, as wAl 
 hi;/ in the 
 e, territo- 
 whole of 
 f Queen", 
 n this n.'- 
 
 nco. Stilt. 
 nty," to be 
 mean city, 
 r of hou.sc. 
 meutionod 
 . cap. ;!ll, 
 the hitter 
 ubstituting 
 seems to 
 section 13, 
 tij, town, in- 
 e indorsed 
 
 S. 2.] WRIT OF SUMMONS. 
 
 of the residence or abode or supposed residence or abode of 
 the party Defendant shall be mentioned, (/t) 19 Vic. c. 43, 
 8. IG ; 19 Vic. c. 90, s. 2; 12 Vic. c. G6, s. 5. 
 
 on tlie writ. Referring to English authorities, ns regards " place and county," we 
 rii'ct with the following: " Tufton street, in the county of Middlesex," sufficient 
 witliout naming the parish : Cooper v. Wieale, 4 Dowl. P. C. 281. " Kent Street, 
 ill the county of Surrey," sufficient: Webb v. Lawrence, 1 C. & M. 806; s.c. 3 Tyr. 906; 
 ili Dowl. J'. C. 81. "A. B. of the city of London," without specifying any place or 
 Jreet therein, insufficient : Cotton v. Satri/cr, 2 Dowl. N. S, 310. In this case it 
 ■was observed by the court, that " it would be sufficient to describe a person as of an 
 vrdinarn town in a. particular count;/, but London is an exception." It is presumed 
 therefore, that in Canada, where all our cities and towns, compared with London, 
 are "onlinary towns," a description as of a township, town, city, &c., would be a 
 sufficient compliance with the Act. " Parliament Street, in the city of Westmin- 
 ster," cot naming the county, insufficient : Itoss v. Gandell, 1 C. B. 766. The 
 lace st.ited mu^t be within the county mentioned in the writ: Kinj v. Hopkins, 
 13 M. it W. 685 ; Balman ct al v. Sharp, 16 M. A W. 93. " Townslup of Toronto, 
 in the count;/ of York," insufficient, that townshij) being in Peel : llutchimon v. 
 Itrect ct al, 1 Prac. 11. 367. Where an objection is made to the writ, that dcfen- 
 ant's residence is improperly described as being in ono county instead of 
 nothor, which adjoin? the offidavit, it ought to be positive as to the fact, and 
 ught to aver that there is no dispute about boundaries: Lewis v. Newton, 4 Dowl. 
 C. 35.") ; SCO Jelks v. Fry, 3 Dowl. P. C. 37. Judicial notice cannot be taken 
 ithat a jiarticular place is situate in a known county : Rippon v. Dawson, 7 Dowl. 
 P. C. 247; sed qu., see remarks of Robinson, C. J., in Hutchinson v. Street et al, 
 1 Prac. R. 367. The omission to insert the co.uity of the defendant's residence 
 [is a mere irregularity that should be taken advantage of within a reasonable 
 .ime: Ross v. Gandeil, 7 C. B. 766. 
 
 (/() This applies to two states of facts : First, where the defendant's residence, 
 Br supposed residence, is known, and he is known or supposed to be residing 
 ihere. Second, where he has left his place of residence, and is known or sup- 
 j)osed to be in some other place : Bowncs v. Oarbctt, 2 D. A L. 944, per Cole- 
 idge, .J. It would seem useless for defendant to deny that he resides at the place 
 nentioiied in the writ, so long as plaintiff is prepared to assert that his supposi- 
 lion was that he did reside there : see Windham v. Fcnwick, 2 Dowl. N. 8. 783 ; 
 Valniau et al v. Sharp, 16 M. <fe W. 93 ; Jclkes v. Fry, 3 Dowl. P. C. 37 ; Rippon 
 V. Ihinson, 5 Bing. N C. 206. Meaning of the words " supposed to be :" see 
 llcskcth v. Fleming, 24 L. J. Q. B. 255. Defendant may bo supposed to reside 
 iiiiywliero, if there bo a reason for t'le supposition, biit his supposed residence 
 must be described correctly: see King v. Hopkins, 2 Dowl. P. C. 639, per Alder- 
 son, B. Although a correct description of a supposed residence will satisfy the 
 statute, yet it is clear an incorrect description of an actual residence is open 
 to oljjcction; nee lb. 638, jer Pollock, C. P. A writ was directed to "A. B., 
 of the townshi;) of Nottawaaaga, in the county of Simcoc," and defenrlant ob- 
 tained a ?ummf ns to set aside the writ on the ground that " the place and countv 
 "t his resideiKj wero wrongly described, he having for eigiiteen months previous 
 ii) the service of said writ resided, and being at the time of such service resi- 
 dent, at the city of Toronto." In answer to this, plaintiff produced and veritied 
 
 of defendant was as stated in the writ of summons;" Vhlborn v. Chapman, 2 U. C. 
 L. J. 231. The defendant may be described as of his late abode: Norman y. 
 
THE COMMON LAW PROCEDURE ACT. 
 
 [S. 3. 
 
 CDmrnfince- 
 rnciil of 
 
 llCtidllH 
 
 wlurc it is 
 intoiiili.'il to 
 hold ilt^fen- 
 diint to 
 special bail. 
 
 2.-BAILADLE. 
 
 3. (»') In case any person is to be arrested and held to 
 special bail, the process shall be by a Writ of Capias accord- 
 ing to the Form A. No, 2, which Writ shall bear date, be 
 tested and (in addition to other indorsements) bo endorsed in 
 the same manner as Writs of Summons, and may bo directed 
 to the SheriflF of any County in Upper Canada. (^ ) 19 Vic. 
 c. 43, s. 22. 
 
 Winter, 6 Bing. N. C. 279, s. c. 7 Dowl. P. C. 304 ; Betli/env. Thompson, 1 Dowl. P. C, 
 822; also see Cotton v. Sawyer, 2 Dowl. N. S. 310; Simpson v. llamswj, 5 Q. I). 
 STl. But ho should not be described as "now or late of, Ac. :" Pilbrow v. Pil- 
 broio'n Atmospheric Railway Co., 3 C. B. 730. It will be sufficient to describe a 
 corporation or public company, as of the place Avhere their functions are exer- 
 cised ; see Norman v. Winter, 5 Bing. N. C. 279 ; Launccston d: M,ctoria Railway 
 Co. V. Brennan, 3 Jur. 196; Cotton v. Sawyer, 2 Dowl. N. S. 310. The defen- 
 dant's addition need not bo inserted; Morris v. Smith, 2 C. M. & R. 120. The 
 residence of plaintiff need not be etated : see Form No. 1, in Schedule. Neither 
 is it necessary to state whether the parties are suing or being sued in a representa- 
 tive capacity: 1 Dowl. P.C. 98, note a. Nor is it necessary to state whether defen- 
 dant hns privilege of Parliament, Ac. ; see Cantwellv, Earl of Sterling, 8 Bing. 174. 
 In actions upon bills or notes, defendants may be described in the process or 
 declaration by the initials or contraction used by them in such instruments: Con. 
 Stat. U. C. cap. 42, s. 30. The "form" of the writ is given, but the omission to 
 insert or endorse in or upon the writ the matters made necessary by the act, does 
 not make it a nullity ; it is only an irregularity that may be set aside or amended : 
 C. L. P. A. sec. 48. 
 
 (j) This section is substantially a re-enactment of the repealed Act 12 Vic. cap. 
 63, s. 24. It may bo well here to point out in what respect the capias in this 
 Province differs from the capias in England, The summons in England is the 
 only writ wherewith to commence personal actions : Eng. Stat. 1 A 2 Vic. cap. 
 110, 3. 2. A capias may be issrod, but only as collateral to the main proceed- 
 ings: 76. s, 8. The summons mvst first issue, and then, if necessary and allow- 
 able, the capias. Whereas in this Province, the capias so far from being an 
 auxiliary Avrit may, in cases where it is intended to hold the defendant to bail, be 
 the first and only process ; see Tyson v. McLean, 1 Prac. R, 339. After special 
 bail has been put in, plaintiff may proceed with his action " in like manner 
 as if the action had been commenced by writ of summons, and the defendant had 
 appeared thereto:" C. L. P. A., sec. 34. This will explain why our legislature, 
 in adopting many of the English provisions, have, after the word "summons," 
 generally added " or writ of capias." Both writs in this Province, as regards 
 the commencement of action, being upon an equal footing, the one to be used 
 in non-bailable, the other in bailable actions. 
 
 (,;■ ) The form in the Schedule (which see) follows very closely the form p-iven 
 in No. 3 Schedule to 12 Vic. cap. 63. It is worthy of notice that even the form 
 of action (" in an action on promi»es, or debt, Ac") though unnecessary in 
 a summons (section 9) is retained in the capias : see Schedule A. No. 2. But it 
 must bo recollected that these forms are given as much for illustration as any 
 other purpose. The retention of the words " on promises," Ac, shows that as u 
 general rule a capias now can only be sued as out as of right for a money demand 
 or " debt," in the popular sense of that word. 
 
s. 4.] 
 
 ISSUE OF WRITS. 
 
 WHO TO ISSUE. 
 
 4. 1. In the Superior Courts, the Clerk of the Process 
 shall issue to the parties or their Attorneys all original, and 
 other Writs of Summons and of Capias, and all Writs of 
 Replevin issued respectively from the principal office at 
 Toronto, and shall renew such Writs except Writs of Capias 
 as hereinafter authorized, (k) 19 Vic. c. 43, s. 4. 
 
 2. And the Clerk of the Process and each Deputy Clerk of 
 the Crown shall issue Writs for the commencement of actions, 
 nnd the Clerks of the County Courts shall issue all similar 
 writs in such Courts respectively. 19 Vic. c. 43, s. 4. 
 
 3. In the Superior Courts, such writs shall be issued alter- 
 nately one from each of such Courts, and not otherwise, (7ck) 
 
 Pi'ooosa 
 Cli'ik ti) 
 issue Writs, 
 Ac, to par- 
 ticsiind tluir 
 Attorneys in 
 Turouto. 
 
 Deputy 
 Clurk iind 
 County 
 Court Clerk 
 in till" outiT 
 Couutiud. 
 
 Writs to 
 issue ulter- 
 
 (7c) Before the year 1853, process in the courts of Queen's Bench and Common 
 Plo?.^ were issued by the respective clerks of these courts. Statute 16 Vic. cap. 
 175, was then passed. It recited that " it is desirable that the offices for issuing 
 writs of summons and capias and other writs of mesne or first process in the 
 courts of Queen's Bench and Common Pl^as, in Upper Canada, in the county of 
 York, be unitad." It enacted that the clerks of the two courts should, from time 
 to time, " select one of their clerks, whose duty it shall be to issue all writs of 
 summons, <fcc." The officer contemplated by the section under consideration has 
 different duties to perform, and is diflfcrcntly appointed. The clerk of process, 
 though appointed by the executive, is subject to the control of the judges. As 
 ;m officer appointed by government, he will be responsible to government for tlie 
 proper discharge of his duties. But like other officers of a court of justice, he 
 will also be responsible to the courts, and be liable to be dealt with fr>r iiuproper 
 conduct. For his guidance in the performance of his duties, he must look to 
 the courts. As an officer of both courts, he must obey all regulations of the 
 courts not inconsistent with the provisions of this statute ; see R. G. pr. et serj. 
 It was held under the Common Law Procedure Act, 1856, that the clerk of 
 the process was empowered to issue writs of mandamus : Burdelt v. Sawyer, 1 
 I'rac. R. 398. A writ issued by the officer at his own house, and before office 
 hours, was decided not to be illegal: Rolker et al v. Fuller, 10 U. C. Q. B. 477. 
 Tlie court, though refusing to set aside the writ, animadverted upon the inconve- 
 nience of the practice, both as regards the profession and tlie officer himself: Ih. 
 It is irregular for a deputy clerk of the cro^vn to file papers at his private 
 residence apart from his office, and out of office hours : Fralick v. Huffman, 1 
 Cham. 11. 80, The delivery of a paper to him in the street, is not "tiling or 
 entering it ;" lb. When the defendant's attorney is present at the opening of 
 the office in the morning, to file a joinder in demurrer, and the plaintiff's attorney 
 is also present to sign judgment, the former is entitled to precedence : Jb. An 
 attachment was granted against a deputy clerk of the crown, for having issued 
 process without authority : Rex v. Fraser, 3 0. 8. 247. Afterwards on his ap- 
 jiearance in term to answer interrogatories, the court ordered him to bo dismissed 
 from his office, and to pay the costs of the proceedings : lb, 
 
 [kk] In the superior courts the writs are to be issued alternately, one from each 
 of the courts. The system of issuing writs in dozens for each court was first 
 authorised by Stat. 16 Vic, cap. 175, s. 2. The recital to that section explained 
 
6 
 
 THE COMMON LAW PaOCEDUriE ACT. 
 
 [as. 5, G 
 nitiiy from )jyt ([^\^ giij,]] not nffoct the issue of concurrent Writ*. I'J 
 
 eacU Court. 
 
 Vic. c. 4.'], 8. 4. 
 
 AiiwiitHtn •'• All writs issued by any of the said Courts shall be- 
 '"',""'''; I''" under the seal thereof, and in the Superior Courts shall be 
 
 Btul of thll ' * 
 
 Coiirtu, and tcsted in the name of the Chief Justice, and in the County 
 
 tented, &c. , ' . ■' 
 
 Courts in the name of the Judge thereof, or in case of the 
 death of such Chief Justice or Judge, then in the name of 
 the Senior Judge in the Superior Courts and of the Junior or 
 acting Judge in the County Couits for the time being. (I) 
 19 Vic. c. 43, s. 4 ; 19 Vic. c. 90, s. 1. 
 
 ,,.,, , 6. The Process Clerk and each Deputy Clerk of the Crown, 
 
 Ofiii'c from . 
 
 y.i]Miia«ued and the Clerk of each County Court, shall note in the margin 
 iatiie of every Writ issued by him, from what ollice and in what 
 
 iinrgiii. . . 
 
 County the Writ issued, and shall .subscribe his name there- 
 to. (?n) 19 Vic. c. 43, s. 20 j 19 Vic. c. 00, s. 4. 
 
 tho reason of the system. It recited tlint inucli public inconvenience nvoso from 
 tlic iiiR'(]Uiil distribution of tlie business between the two sn[)urior courts of 
 common law, tiioj' havinn; a conmion jurisdiction (12 Vic. cap. 013, s. 8), wliereby 
 one court was often insutiieiently employed, wliiie tJic other was unduly pressed, 
 to the fi;reat delay and injury of suitors and detriment of justice. "With a view 
 to equalize the business of said courts, it was enacted that first process should 
 be issued in rotation by twelves. Tiio alternate issue of wi-its, " one from each 
 court," is much preferable to "rotation by twelves." Increased facilities are 
 nllbrded to such suitors as may desire to make a choice of courts, and j'ct the 
 business of the two courts as regards tho ninuber of writs issued is not in conse- 
 ([uence made unequal. SciiMc, a writ is irretjular if not sealed: Sini/h v. JinxsrU, 
 1 Cham. Iv. 19^. Under the old practice a writ was held to be suHieiently 
 sii^nod when signed by the deputy who is.sued it, though not signed by the clerk 
 of the crown: Jb. The clerk of process must, under section 4, seal and aipi all 
 process whatsoever. 
 
 (/) At common law a court of record lias the power of appointing a seal as a 
 necessary incident to give effect to tho authority deleg-nted to it. The principle 
 as to corpor.atQ seals applies to courts. See 1 Bl. Com. 4'75, I5ac. Abr. " Cor- 
 porations, D." A writ would be irregtUar if not sealed: Smith v. Jiiutsal/, 1 
 Cham. R. 193 ; see also Galloffly v. Onitslii/, 1 Ir. C. L. 11. 515. Uidess there is 
 a vacitnci) in tho office, the writ must be tested in the name of the chief justice. 
 His absence from the Province does not make it improper to test writs in his 
 name : Jivett v. Smith, 1 Proc. R. 809, per Richards, J. A writ tcsted in the name 
 of a retired chief justice is nn irregularity only: Nehon v. Roy, 9 U. C. L. J. 
 2t)5. A judge in chambers refused to set aside a writ for mere error in the 
 christian name of the chief justice : Folkardy. Fiustnblj.i, 1 F. & ¥. STtl. 
 
 (»i) This is a re-enactment of our old practice. See form of summons and 
 capias schedule to 12 Vic. cap. C3 ; also see old Ruh-, 1 II. T. 13 Vic. : " Every 
 writ of summons or capias sh.all state in the margin llie ' city, town or place,' at 
 which the same was issued." As to the words, " city, town or place," see remark> 
 of Draper, .1., iji Chambtrlain ct al v. Wood d al, 1 Prac. R. 199; see also note 
 y to section 2. The city, town, or place of isiue is now unnecessary, if the- 
 
es. 7, 8. 
 
 VENUE. 
 
 7, In cases in the Superior Courts in wliich the cause of rioiH r . m.-.. 
 actio!i is transitory, tlio I'laintifF amy sue out the Writ for the .,ut wins in 
 coiumcnccnicnt of the action from the oillue of the C'li^'k of ,u'iiniiJ.' 
 either of the said Superior Courts, or from tlie otlice of any 
 
 (jf the Deputy Clerks of tlio Crown, and in like casi-s in a 
 County Court the "Writ may be sued out from any County 
 Court having jurisdiction over the cause of action. (//) 11) 
 Vic. c. 415, s. G, and c. 90, s. 5. 
 
 8. When tho cause of notion is local, the Writ fur the wiirinoii/n 
 conirncncement of the action must bo sued out from the office '""'"'' 
 within the proper County, and all proceedinjis to liiiiil jiulu- 
 
 nient in actions whether transitory or local, shall be carried 
 on in the office from which the first process issues, {un') 10 
 Vic. c. 415, s. 7, and c. 00, s. 5. 
 
 ofiico and county bo stated. It was IiuM muler Stiit. 12 Vic. c. Gfi, that tlio wiil. 
 was sutiieiuntly signed, if sif^ned in tho inar!.;-iu by tho otiicer wlio issued it ; 
 Hiiiith V. liusadl, Smith v. Jit id, 1 C'iiam. 11. I'Jii ; Leach v. Jarvis, lb. 204. 
 
 (;() Actions are, (ransi/ni-i/, wliero tlio cause of action iniinlit be supposi-d to 
 hivvo ni'orued or liajipencd anywhere, such as debt, contracts otinuu, slander, 
 assault, falso-inijirisoniiiL'ii^, and usimlly, nil matters relating;' to t e person or per- 
 sonal property, even thou^'h all the fiicts arose abroad. Local, !■ iiere the ciiuse of 
 iiclion could have accrued or hiippened in one county only. 'I'lius if the action 
 be trespass for breaking the plaintitrs close, the action must be coninienccd and 
 tiio venue laid where the close is situated. Generally, it iiiaj' bo stated that 
 actions may bo considered local when the cause of action could by possil/ility and 
 in its nature havo reference to a particular localitj- only. It should be noticed 
 that some actions are made local by statute. For example, actions brought ag.'iiiist 
 persons for something done by them in the performance of a public duty, or wlieu 
 acting under the express provisi(jns of certain acts of iiarliamcnt. The statute for 
 the firotection of justices of the peace. Con. Stat. U. U. cap. 126, may be referred 
 to as an instance. Section 11 of that act enacts, that in actions brought again.--t a 
 justice of the i)eaco, for any thing done by him in tho execution of his otHce, " tho 
 venuu shall be laid in tho county where tho act complained of was comniilteii 
 d'C. :'' see Atkinson v. IToryibji, 2 C. <fe K. 333. An arrest by a justice of tho peace, 
 if illegal, may under this section, be deemed a local cause of action ; whereas, if 
 the same act were committed by a private individual, the venue would be transl 
 torj': see Moran v. Faliner, 13 U. C. C. P. 450. No action should bo commenced 
 au'ainst any person who could reasonably suppose that he was acting under the 
 authority ol an act of parliament, until it has been ascertained by reference to 
 tho act, whether any and what provision is made with respect to venue. It has 
 been held that in replevin, where the goods to bo replevied have not been 
 distrained, tho writ of re])lovin may be sued out in any county, and that a writ 
 of replevin may be issued in one outer county to replevy goods in another outer 
 county: L'l/falo and L. JJ. R. Co. v. Gordon, 3 U. C. L. J. 28. 
 
 (w»i) In an action on a recognizance the venue should be laid in the county in 
 which tho recognizance remains of record: McFarlanc v. Alloi et al, 4 U. C. C. 1'. 
 4:i8 ; Smith v. JiiiskcU, 8 U. C. t}. E. 387. But the crown has the right to lay the 
 venue in any county : The Queen v. Shipman, U. C. L. J. 1!). 'Where tho crown 
 
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8 
 
 TUE COMMON LAW PROCEDURE ACT. 
 
 [88. 9, 10. 
 
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 WRIT OF SUMMONS. 
 
 9. It bball not be necessary to mention any form or cause 
 of action in any Writ of Summons or in any notice thereof (o) 
 19 Vic. 0. 43, s. 17. 
 
 10. Every such Writ shall contain tho names of all the 
 Defendants in tlio action, and of no other Defendant, (p) 
 19 Vic. c. 43, s. 18. 
 
 proceeding is on a recognizance to keep the peace removed into one of the supe- 
 rior courts at Toronto, the venue may be laid in the county of York : P>. In 
 local actions laying the venue in the wrong county has been bold to be a ground 
 of nonsuit: Bo^rs et cl v. llewetaon, 1 C. <& P. !'.27; 1 Saund. 241 f. In some 
 local actions (t^ectracnt, for example), if v. r\t bo issued from any county 
 "other ihan the proper county," tlie error •„:•: appear on Ihe face of the writ 
 itself. It is apprehended thot in such a case ♦lio wri^ would be irregular, if not 
 void, and might at once bo taken cc^' anUuro of. '-.'vn motion. In other local 
 actions (trespass, for example), iho err r u.i,'!' .< »i^>piur till declaration or 
 other proceeding subsequent to ' ^e w'i* '( »e i- iion made known to the 
 
 opposite party might in this cac^i to •, i!, is anprci. > 'J, bo moved against. In 
 some actions, local by statute (actions against magistr ucs, for example), the error 
 might not disclose itself until the trial, A nonsuit in this case, it is apprehended, 
 would not be improper: sec Moran v. Palmer, 13 U. C. C. P. 460, In the cose 
 of a local action brought in a wrong county, it was held under the old practice 
 that A judge in chambers had no power to amend the proceedings : Vmighnn v. 
 Huhb» et al, 1 Cham. II. 76, per Macuulay, J. But see Ward el al v. Sexmith, 1 Prac. 
 11. .382. A summons was sued out bciuro the separation of Ontario from York 
 and Peel, directing the defendant to appear in the office of the three united 
 counties. It was not served until after the separation. The venue in the decla- 
 ration was laid in the three united counties. Demurrer, held not to be frivo- 
 lous : PlaxtoH v. Smith at al, 1 Prac. B. 228. Under the old practice besides 
 being a ground of nonsuit, it has been said that defendant might demur or other- 
 wise spcciallv plead to the error: Tremeere v. Morrison, 4 M. <lc Scott, 609; 
 Richards v. ^asto, 15 M. i& W. 244. See further section 89, and notes thereto. 
 
 (o) Taken from Eng. Stat. 15 <fe 16 Vic. cap. 76, s. 8. Founded on first report 
 of the Common Law Commissioners, s. 2. The commissioners reported that the 
 statement of the form or cause of action " was utterly useless and lead to captious 
 objections, and to much fruitless delay and expense." They recommended one 
 general form of writ for every action. This recommendation has been followed 
 by the legislature. It is no longer necessary " to mention any form or cause of 
 action in any writ of summons, ^c." But if mentioned, the writ will neither be 
 a nullity, nor be liable to be set aside. Notwithstanding the enactment contained 
 in the section under consideration, it cannot be well said that forms of action 
 have been abolished. True it is that the same nicety in choosing a form of action, 
 or in stating it when chostn, is not now as formerly required. But for many 
 purposes, such as Statutes of Limitations, and some otiier statutes in which parti- 
 cular forms of action are mentioned, the existing forms must still be preserved. 
 Causes of action of whatever kind, provided they be by and against the same 
 parties, and in the same rights, may do joined in the same writ: see section 73, 
 and notes thereto. 
 
 (p) Taken from Eng. Stat. 16 <& 16 Vic c. 76, s. 4. This section atso corres- 
 ronds with our old Rule, 1 il. T. 13 Vic. (Draper's Rules 73), which appears to 
 iiave been copied from Eng. Rule M. T. 3 Wm. IV, No, 1 (Jervis, N, R, 94), and 
 
s. 11.] 
 
 DATE OF WRIT OF SUMMONS. 
 
 
 
 11. Every such Writ shall bear date on the day on which J',,''^^^''*^'^* 
 the same issues, (q) 19 Vio. c. 43, s. 9. >•"««• 
 
 is remedial of the old practice. It may bo noticed that the English rnle extends 
 to " writs of capias ana detainer." Formerly it was held that no more than four 
 (Icfondants could bo included in one writ; and tliat four separate causes of action, 
 against four sopnrato defendants, might bo joined in the same writ : see Pepper 
 V. niialley, 1 Bing. N. C. 71. In both re8])ects the practice is now and for some 
 time past has been altered. Christian and surname of defendant ouglit to be cor- 
 rectly stated: Wllliama v. BryatU, 6 M. A W. 447. Defendant may bo addressed 
 l)y the name which ho bears by reputation : lb. In actions " upon bills of 
 exchange, promibjory notes, or other written instruments," when defendant signs 
 by initial letter of his christian name, designation by such initial letter in process, 
 ic, is sufficient : Con. Stat. U. C. cap. 42, s. 30 ; Stat. U. C. 7 Wm. IV, cap. 8, 
 8. 9 ; copied from Eng. Stat. 3 dc 4 Wm. IV. cap. 42, s. 12. With reference to 
 the latter see the following cases: Sarjantv. Gordon, T D. &R. 268; Jiolphv. 
 Peikham, 6 B. <fe C. 1C4 ; Sumner v. BaUon, i 1 Mooro, 39 ; Rmt v. Kennedy, 4 M. 
 
 6 W. 686, s. c. 7 Dowl. P. C. 199. It is sufficient to describe a defendant by the 
 nfime which usage has given to him, both as regards his christian and surname : 
 Williams v. Bryant, 5 M. tfe W. 447. If the action be against a corporation, 
 tliey must bo sued by their corporate name : see Wool/ v. Cky Steamboat Co. 
 
 7 C. B. 103 ; Attorney General v. The Corporation of Worctdcr,. 16 L. J. Ch. 398. 
 If too many defendants are joined, some may be now struck out under section 68. 
 If too few, after plea ii; ibatcmcnt for non-joinder, plaintiff may amend under 
 t-cctiun 69. It was decided under tho old practice, that the court could not amend 
 the writ by adding a defendant : Ooodchild v. Leadham et al, 6 D. tib L. 383. A 
 plaintiff may issue several writs of summons for tlie samo cause of action of the 
 same date, and upon tho same pracipe, if all tho defendants bo named in each 
 writ: Angu$ v. Voppard et al, 3 M. <& W. 67 ; Crow v. Crow et al, 1 D. Jli L. 709. 
 Tlie term "you" in tho writ, when there are several defendants, is taken to apply 
 (listributively : Eivjleheurt v. Eyre et al, 2 Dow). P. C. 145. Plaintiff can neither 
 (helare against a defendant not named in tho writ, nor declare separately against 
 dcfundnnts named in tlie same writ : Pepjicry. Whalhy, 1 Bing. N. C. 71, s.c. 2 Dowl. 
 I'.C. 821. But he may declare against sonic only : Caldwell v. Blake, 2 0. M. & 11. 
 249 ; s.c. 6 Tyr. 618; Knoielea v. Johnson, 2 Dowl. P.C. 053 ; Evaiu v. Whitehead et al, 
 '1 M. & R. 367 ; Stnhlea et al v. Ashley et al, 1 B. & P. 49. The defendants, however, 
 who have appeored may sign judgment for their costs: Roe v. Coek, 2 T. R. 257. 
 And a plaintiff declaring against some cannot afterwards declare against the others 
 ill a separate action : Caldtoell v. Blake, 2 C. M. «fe R. 249 ; Kiiowles v. Johnson, 
 2 Dowl. P. C. 653. On a joint contract by three, all must be sued, if within the 
 jurisdiction of tho court. If one is without, the remaining two must be sued. 
 One alone cannot bo sued, if thcro be two remaining within tho Jurisdiction : 
 Cohhelt V. Calvin, 4 U. C. Q. B. 123. It was hold that between bailable and 
 non-bailablo process there was a difference, — in the former it being necessary for 
 plaintiff to aeclaro against all the defendants named in the writ: Carson v. 
 Lowdiiiy et al, 4 Dowl. P. C. 297 ; Woodcock v. Kilby, 4 Dowl. P. C. 730, 
 
 (7) Taken from Eng. Stat. 16 lir 16 Vic. cap. 76, 8. 6. Originally copied fr»m the 
 first part of Eng. Stat. 2 Wm. IV. cap. 39, s. 12; and as regards writs of sum- 
 mons and capias, substantially are-enactment of Prov. Stat. 10 Vic. cap. 176, s. 6. 
 Tlie writ ought not to be issued unless cause of action complete : Alston v. Underhill, 
 1 C. «^ M. 492; Tfiompson v. Dicas, 1 C. <fc M. 768, s. c. 2 Dowl. P. C. 03 ; Castrique 
 v. Bernnbo, 6 Q. B. 498. The date may be either in figures or words at length : 
 (Irojan v, Lee, 6 Taunt. 651, overruled; Eyre v. Walm, 6 Taunt. 333; Butler v. 
 Cohen, 4 M, 4 8, S36 ; Solomon v. Xainby, 7 Dowl, P, C. 459, If writ dated on 
 day other than that on which issued, it is irregular : Kirk t. Dolby, 8 Dowl. 
 
10 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 12. 
 
 And en- 
 ilurwd with 
 tliu iiuino 
 and alMidu 
 
 of till! 
 
 plnintitrH, 
 Altcriii'y 
 and Agunt. 
 
 19. (r) Every such Writ (rr) shall be indorsed with the 
 name and place of abode of the Attorney actually suing out 
 the same, (s) and when be sues out the same as agent fur 
 another Attorney, the name and place of nbode of such other 
 Attorney shall also be indorsed thereon. (<) 10 Vic. c. 43, 
 
 8.21. 
 
 P. C. 766, 8.C. 6 M. A "W. 036. If dntcil on a Sunday, void : Ilnnnon v. SlutrkcUon, 
 4 Dowl. r.C. 48, 8.C. 1 II. ii \V. :?42 ; Kcnworthtj v. ^Prppint, 4 15. ifc Al. 288. If no 
 date, irregular, not void: see Jiall v. Uamld, 8 Dowl. 1'. C. '88. Agreed by 
 tlio judges of the (juccn's Bench, Common I'lens, nnd Exchequer, that n writ of 
 Buramona may bo amended, so as to render it conformable to tlio ]>rcci])o on wliicli 
 it is founded ; Kirk v. Dolby, 8 Dowl. P. C. 706, per Purke, B. Amendment 
 allowed by striking out, "23rd February, 1824, in the fourth year of our reign," 
 and inserting in lieu thereof, "Slst Januarj-, in the fifth year of our reign:" 
 Afyers v. Jiatfibnrn, Tay. U. C. R. 127. It will not bo safe to rely too nnieh ujion 
 this case, as tho report is very unsatisfactory. For the law as to amendments 
 generally, boUi as regards oraissioi.s and mistakes, see section 221 of this act. 
 Althougli th'j act gives amplo powers for amendment, still it is presunied that the 
 judges will, in the exerciso of their discretion, bo governed by cases already 
 decided, so or as applicable. If a defective writ be rei^ealcd, it ought to be dated 
 on the day of rcsealing: Kn'ujhty. WWren, 7 Dowl. P. 0. ()»;;{. A mistake in 
 the year in .ho teste of a cop\' of a summons, the writ itself being right, is a mere 
 irrcgularitv which is waived" if the defendant does not come to the court before 
 tiic time for appearance has elapsed: Jidicanhv. VolUnit, 6 I»owl P. C. 227. 
 An offer by defendant, after lipving been served with the siinimons, to pay half 
 the debt and costs, is a waiver of a nr^tako in the teste of the summons copy : 
 Jirit/r/s v. Bernard, 6 L. J. C. P. 210. The court refused to allow the date of a 
 writ of summons to bo amended for the pjirpose of preventing the plaintitrs 
 claim being barred by the Statute of Limitations : Clark v. Smith, 30 L. T. Uep. 
 2'Jl; 8. c, 27 L. J. Ex. 166. 
 
 (r) Taken from Eng. Stat. 15 it 10 Vic. cap. 76, s. 0. Substantially a re- 
 enactment of Eng. Stat. 2 Wm. IV. cap. 3», s. 12; and Eng. Uide, M. T.'3 Wm. 
 IV. No. 9, from which the latter part of our Prov. Stat, 12 Vic. cap. C3, s. 27, 
 was copied. The origin of the practico seems to have been Eng. Stat. 2 Cieo. II. 
 cap. 23, 8. 22. 
 
 (rr) Applies to writs of ejectment: )Vibskr v. Gore, 4 Prnc. R. 160. 
 
 (*) I. e. The individual attorney, or the name of the firm: llnrthii v. Rmhu 
 humt, 4 Dowl. P. 0. 748; EiigUhearl v. Eyre tt al, 2 Dowl. P. C. N.") ; 'j'irkinmi v, 
 Collin, 3 Dowl. P.C. 42'J. Eonn of indorsement: see Schedule A. No. 1. The name 
 nnd address of the attorney is required in order to inform dcfeiidimt where he 
 may settlo the action : Danes v. Solomonsoti, 6 Scott, TillO. The form is given 
 for the purpose of illustration: Ifannah v, Wymnn, 3 Dowl. P. C. 673. In Eng- 
 land, it has been held that if the writ be issued by an attorney in person, it is 
 suflieient in the indorsement to describe him as residing at the place wliiro lie 
 carries on his business: Ahletl v. Jiashnm, 5 El. A IJ. 101!). I'lace of abode 
 means the place where a person is most likely to be found: AUeiiboroin/h v. 
 ThotnpsL n, 2 II. & N. 659 ; Kirr v. JIaynes, 29 L. J. Q. B. 70. 
 
 (t) Same as old Rule 9, II. T. 13 Vic. An indorsement thus: "This writ was 
 issued by G. F. G. A S. of No. 1, B, R. ",ondon. agents for Mr. J. T. of llxeter, in 
 the county of D., the plaintiff within named," v.'as held to be bad, inasmuch as it 
 neither showed that tuo writ wos issued by the attorney for the plaintiff, nor by 
 
as. 13, 14.] 
 
 INDORSEMENTS ON WRITS. 
 
 11 
 
 13. When the Writ is sued out by the Plaintiff ir, person, ^'"n »"«^'i 
 be shall indorse thereon a meiuorandum expressing that the """toW 
 game has been sued out by him in person, (u) and mention- 
 ing the City, Town, incorporated or other Village or Town- 
 ship within which such Plaintiff resides, (tc;) 11) Vic. c. 43, 
 
 8. 21 
 
 14. («) The Plaintiff's Attorney, or the Plaintiff, if he tim! nmnunt 
 sues in person, shall endorse on every such Writ issued for "lahn tnini 
 the payment of a debt, {y) and upon every copy there- wli't. ^ 
 
 llio jilaiiitiff in person; ?b6i/ v. Hancock, 4 D. tt L. 88.5. AVhcro the writ was 
 is.siu'il (Hit by a London nijont, tlio descrijition " ar/ent for ]>1niniitf in pemon," was 
 held to bo insufficii'nt, although tlie plaintiir was himself an pttorney : Lloi/d v. 
 Joiiif, 1 M. «t W. SiiV. Anj' sucli irregularity would now bu anienduble either 
 under section 48 or section '2'i I of this Aet. AV hero tlie process was indorsed only 
 with the nnnio of the agent and not of the attorney immediately employed, the 
 court held tliis irregular, and set aside tiie process : Shtphard v. Shum, 2 C. & J. 
 «;c.J; s. c. 2 Tyr. 742. Indorsement, "M. G. & Co., agents for S.," without 
 specifying cliristian names, is snthcient: Pkhnan v Collis, 3 Dowl. P. C. 429, 
 
 («) Wlion plaintitT in person sues out the writ, liis description shouUl be very 
 dear, full, and i)recisc: sec Lewis v. Davison, 1 C. M. <fe II. 055 ; Anlcn ct al v. 
 Jonrx, 4 Dowl. P. C. 120 ; Kingy. Monkhousc, 2 Dowl. P. C. 221 ; Yanlley v. Jones, 
 
 1 Dowl. P. C. 45; Ablftty, Lasham, 5 El. tt B. 1019. Non-professional men arc 
 not so easily found out as attorneys of the courts, whose oflices are generally 
 well known. As to place of dwelling of a corporation, see Corbett v. General 
 Steam Xaviffntion Co., 4 II. A N. 482; iJrown v. London d' X II'. Ji. Co., 4 H. & S. 
 ;i2ti ; 77((! Keipuham Blue Lias Lime Co. v. Uuker, 2 II, «fe C. 729 ; Aberystwith Pro- 
 vinmdv J'ier Co. v. Cooper, 35 L. J. Q. 13. 44. 
 
 (c) The English Act 15 it IC Vic, cap. 7e, s. 6, proceeds, " and also the name 
 iif tlie hntnlct, street, and number of the house of such plaintifFs residence, if any 
 Miih there be," The designed omission of these words should be borne in mind 
 wiieii e.vnmining English authorities. The judge in chrmbers is to exercise his 
 discretion in determining whether tho description is sutlicient or not. If ho 
 decide the (|uestion, tho court will rarely review his decision : Tudnian v. Wood, 
 •1 A. A E. 1011. 
 
 (/) Taken from Eng. Stat. 16 it 16 Vic, cap. 70, s. 8. The provisions of this 
 section are such as were formerly required by rule of our courts, T. T. 3 it 4 
 Will. IV. No. 3, which was rescinded by Jlule of II. T. 13 Vic. No. 4. The old 
 Hull' of T. T. 3 it 4 Wm. IV, No. 3, was taken from the Kng. Rule of II. T, 
 
 2 Will. IV, No. 2: Jervis, N. R. 90. A nominal coiiipliaiice with it by pluintiffs, 
 mill iiinllention to it by defendants, was suid to be the cause of its rcscisf-ioii. 
 liuloi'seiiients of sums far exceeding the true debt and costs were commonly mado 
 in tiitiil disregard of the rule, 
 
 (//) This section applies only to debts, that is, to sums certain, or money 
 den ill la that can be estimated: see Perry \. Palchctt, 2 Dowl. P.O. 607; Cnrwin, 
 V. J/.wff V. 1 Dowl. P. C. 432. It would therefore seem unnecessary, if not im- 
 jinijicr, to put tho indorsement on a writ claiming for any other cause of action : 
 bee Kilivitrds v. Dianam, 2 Dowl. P. C, 240, Tho section docs not a|)ply to a 
 wti iiiiii action: see Davits v. Lloi/d, 6 Dowl. P, C, 173; Uobbs v, Yomifl, 2 D, <t 
 L, 474. Nor to au action ou a bail bond: see Smart v. Lovick et al, 3 Dowl. P,C. 
 
12 
 
 THE COMMON LAW PROOEDURS ACT. 
 
 [8. 14. 
 
 mM 
 
 ut "'' 
 
 Ill 
 
 . II 
 
 ".r'*^ < .* of, («) the amount of the Plaintiff's claim f. r debt, (a) and 
 
 within I'ight ' ^ y i v / 
 
 •injH, pr.^ if there be an Attorney, the Attornev's claim for the costs 
 
 •top. of Writ, copy and service, and attendance to receive debt 
 
 and costs, (b) and, that upon payment thereof within eight 
 
 days, (c) to the Plaintiff or his Attorney, as the cose may 
 
 be^ (il) further proceedings will be stayed, (e) which indorse- 
 
 34. Nor to a replevin bond : see Rowland v. Dakeyne et al, 2 Dowl. P.C. 832 ; but 
 see Robinnon v. Ilau,kin$ et al, 1 Jur. 843. Nor to any case where the party claima 
 unliquidated damages, as well as a debt : Perry v. Patchett, 2 Dowl. 1*. C. 667, 
 and Matu field v. Brearetj, 1 A. <b jlJ. 347; Jaequot v. Boura, 6 M. lic W. 166 : see 
 also Iioff(.-a v. Bunt, 10 Ex, 474. If defendant seeks to take advantage of the 
 omission to indorse process as above required, he must show distinctly oy affida- 
 vit, that the cause of action is a debt : Legatt v. Marmontt, E. T. 3 Vic. MS. 
 R. A H. Dig. " Indorsement," I. 9, p. 236 ; Curwin v. Moseley, 1 Dowl. P. C. 432. 
 Where the omission of the indorsement on a bailable writ was supplied within 
 two hours after the arrest, before bail was put in, and before application to set 
 aside proceedings, the old Rule 3, T. T. 3 <fe 4 Wm. IV. was held to be sufficiently 
 complied with : Smith v. Smith, 4 0, S, 10 ; aed. contra. Oibbs v. Kimble, 1 U, 
 C. R. 408. 
 
 {z\ In the absence of proof to the contrary, defendant may assume that the 
 copy served is a true copy, and that if the copy bo defective, so also is the writ : 
 Chapnan v. Bccke, 3 D. <& L. 360. The omission of the letters " L. S.," or any 
 mark to denote a seal to the copy of a writ, is not an irregularity : Cameron v. 
 Wheeler et al, 6 U. 0. R. 866. 
 
 (a) If a larger sum than is due be indorsed, proceedings will be stayed, upon 
 payment of the renl debt with costs of the writ only: ElUslon v. Robimon, 
 2 Dowl. P.C. 241 ; Vounff v. Crompton, 2 D. <& L. 657; see nlsoiro^/ton v. Voletnan, 
 7 M. (b O. 422. For this purpose a summons should be taken out in the usual 
 manner. 
 
 (6) Plaintiff may abandon his costs if he prefer to do so. If such be his inten- 
 tion, ho should not serve such process upon defendant as to leave him in doubt : 
 Trualove v. WIdteehurch et al, 8 Dowl. P. C. 837. For instance, " the nlainti6f 
 claims £86 8s. Sd. for debt, and £ ■ for costs," this is irregular : lb. ; see 
 
 Hunter v. Russell, 6 Scott, 627 ; Young v. Crompton, 2 D. <& L. 667. 
 
 (c) Within eight days, Ac., i. e. from the service of the writ, both first and last 
 days it seems inclusive : see R. G. pr. 166. " Four days" in English Act from 
 which this section is taken. So it was in the old Rule of 3 & 4 Wm. IV. 
 
 (d) The rescinded Rule 3 <& 4 Wm. IV. made express distinction in this parti- 
 cular, between writs issued by attorney and by plaintiff in person ; " and that 
 upon payment thereof, within four days, to the plaintiffs attorney, or to the 
 plaintiff when the writ shall have been issued by the plaintiff in person : " Rule 
 3, T. T. 3 «fe 4 Wm. IV. ; Cam. Rules, p. 11, " Process," 2. Probably the words 
 " Plaintiff or his Attorney," as the case may be, as used in the section here anno- 
 tated, mean the same thing. 
 
 (e) The object of the indorsement is to show the defendant, in express termij, 
 what the plaintiff is contented to take, in order that the former may tender it, 
 together with the costs, within eight days: Chapman v. Becke, 3 D. <& L. 360, 
 per Patterson, J. Indorsement held to be unnecessary on a proceeding by bill, 
 against an attorney: Levoellyn v. Norton, 1 Dowl. P. 0. 416; lA>ng v. Wivrdaicorth, 
 4 B. «b Ad. 367. Since held to be necessary, as proceeding by bill is abolished: 
 
 (i.«y 
 
8. 14.] 
 
 IND0B8KMENTS ON WRITS. 
 
 13 
 
 ment shall bo written or printed in the following form, or to 
 the like effect : (/) 
 
 '< The Plaintiff claims $ for debt, and 8 for Ftih. 
 
 <' costs ; and if the amonnt thereof be paid to the Plaintiff or 
 " his Attorney within eight days from the service hereof, {g) 
 « farther proceedings will be stayed j" (A) 
 
 Tompkini v. Chileote, 2 Dowl. P. C. 187. It is apprehended that if the debt be 
 uuderstatcd, plaiutiff, if tendered the arnovnt indorsed, would bo bound to accept 
 it. And thereby lose tlie difference bet' ^en the buui stated and the sum due, 
 unless in tite case of very special circumslanccs. If tlio plaintiff refuse the amount 
 tendered, whether it be the sum indorsed or less, such refusal may be noted by the 
 judge on a summons, and if after snch procecdiuf^ plaintiff recover no more than 
 the sum tendered, he will, it would seem, be liable to pay defendant's costs : see 
 li (ihon ct at V. Coleman, 1 M. <b G. 422. The sum tendered, if refused, should be 
 paid into court: Clerk v. Dann, 3 D. dL. 613. It has been heM in England, that 
 under the usual order on payment of the debt and costs to ba tuied, the plaintiff's 
 attorney cannot immediately after tha taxation of the costs demand payment of 
 tlie debt ond costs, and on the clerk of defendant's attorney bring unprepared 
 witli tiie amount, sign judgment: Perkins v. 7'he A\itional Assurance it Juvestmetit 
 Asuociadon, 29 L. T. Rep. 66 ; see also Anonymous, 4 Prac. R. 242. If defendant 
 do not within the time limited pay the debt and costs, ho cannot afterwards 
 do so ns a matter of right: JiowdUch v. Slaney, 4 Dowl. P. C, 140. Plaintiff nioy 
 iu his declaration insist upon an increased sum: lb. And defendant will belial>le 
 to any additional costs which the master may allow: If). It is otlicrwi.j if plain- 
 tiff's attorney receive and retain the money after the expiration of theci-ht daj-s: 
 HuMiiff V. Sturchfidd, IU. A G. 957. See also W'l/llic el al v. Phillips, 3 Bing. 
 
 'ly the old 
 
 N J. 776; Covinf/ton v. Eogarth, 2 D. A L. 019. 
 
 ^■f) This is substantially the same iudorscmeut as that prescribed u 
 Rule of 3 A 4 Wm. IV. 
 
 ((/) Tlie word " execution," substituted for " service," has in England been held 
 tn be an irregularity even in bailable actions : Shirlei/ v. Jacobs, 1 Scott, C7 ; 
 ['rijn/iarl V. Dick, 3 Dowl. P. C. 17; Boddington wWoodle;/, 1 Jur. OdO; Jiodding- 
 hn v. Woodley, W. W. <fe D. 581, An amendment of the indorsement would be 
 allowed to plaintiff, upon payment of costs : Unjnhart v. Dick, 3 Dowl. P. C. 1 7, 
 jKT Littledale, J. Where the indorsement required the defendant to pay the debt 
 within four days from the " arrest or service" thereof, held to be sufficient, as the 
 words " arrest or" might be rejected as surplusage : Sutton v. liitrgcss, 1 C. M. &, 
 R. 770. " Defendant must know the time he was served, and that he had four 
 days from the service of the copy, within which to pay tiie debt and costs, to 
 avoid any further expense :" Jb. Where the indorsement was to pay the amount 
 witiiin four days from the " an'est hereon," held to be a fatal irregularity : Cooper 
 v. Waller, Tabram v. Thomas, 3 Dowl. P. C, 167. An amendment of the indorec- 
 nicnt, by altering the amount of the debt mentioned in it, was refused: Trotter v. 
 Buss, 3 Dowl. P. C. 407. It might now possibly be allowed ui.der section 221 of 
 tliis Act. 
 
 (/() The writ must bo so indorsed that an unlettered person may at once bo 
 informed what is demanded of him: Truslove v. Whilechurch et al, 8 Dowl. P. C. 
 HoT. It must state clearly what is claimed for debt and what for costs : lb. If 
 interest be claimed, the amount roust be stated, or the period from which it is 
 reckoned : Chapman v. Btcke, 3 D. A L. 350 ; Fryer et al V. Smith, 6 M. A G. 005 ; 
 
14 
 
 THB COMMON LAW PROOEDURK ACT. 
 
 [8. 14. 
 
 
 6 i 1 
 
 ¥ 
 
 -I* 
 
 • * 
 - f 
 
 't^ 
 
 But the Defendant may, notwithstanding such payment, have 
 the costs taxed, and if more than one-sixth be disallowed, the 
 Plaintiff's Attorney shall pay the costs of taxation, (t) 19 
 Vic. c. 43, s. 26. 
 
 Bartkll v. iTdler. 1 C. B. 753. " Tho plnintiff claims £20 debt, with Interest from 
 10th March last" is sufHciont: Coitpeloy. Jiroien, 3 Dowl. P. C. 1A6; Sealy v. 
 J/earne, 3 Dowl. P. C. 196. It will bo intended that tho interest claimed is legal 
 interest: Allen et al v. Buauy, 4 I>. & L. 480. Tho following additional cnscs may 
 bo consulted as to when this enactment is or is not sufficiently complied witli : 
 Evana v. Bidgood, 4 Bing. 08; Patterson v. JIabbcrihan, 1 Hod. 316; Fitzfferaldv. 
 EvaM, 5 M. & U. 207. Tho want of the indorsement would bo an irregularity : 
 IViulove V. Whitcehurch et al, 8 Dowl. P. C. 837. Amendable probably oiider sec- 
 tion 48 of this Act. 
 
 (i) Defendant may havo tho costs taxed, though he pay less than tho sum 
 indorsed, and though plaintiff's attorney accept the same: Ilunter v. A'mjimi'/, 6 
 M. «fe G. liOl ; but SCO Young v. Crompton, 2 D. it: L. B57; also see Jn re Woollrlt, 
 1 D. <i[ L. ROS. If defendant desire to have costs referred to taxation, notwitli- 
 standing payment, he should take out a summons to show causo " why tho bill of 
 costs indorsed on tho writ of summons paid by him, should not bo referred to the 
 master for taxation," and " why if more than a sixth bo taken off, he should not 
 refund tho surplus, and pay tho costs of taxation." The enactment hero anno- 
 tated, and Con. Stat. U. C. cap. 36, s. 31, aro in pari materia, though tho lat*or 
 enactment appears to relate only to costs as between attorney and client. Tlie 
 material part of it is in theso words : " Tho costs of tho reference shall bo paid 
 according to tlio event of the taxation, except that if a sixth part bo taxed off, tho 
 costs shall bo paid by tho party by whom or on whose behalf such bill was deli- 
 vered, and if less thon a sixth part bo taxed off, then by tho party chargeable 
 with such bill, if ho applied for such taxation." This provision proceeds further 
 than tho Eng. Stat. 2 Geo. II. cap. 23, s. 23. In tho latter statute, the words 
 used are much tho same as the words of tho section under consideration. " If tho 
 bill taxed bo less by a sixth part than tho bill delivered, thon tho attorney or 
 solicitor is to pay tbo costs of taxation ; but if it shall not be leas, the court in 
 their discretion shall charge the attorney or client, in regard to tfie reasonabknesi or 
 unreasonableness of such bills," In reference to this enactment, Baron Parke said : 
 " It has been hold by tho court of Common Picas, that tho statute directing tho 
 payment of costs is not correlative : KlvMod v. Pearce, 8 Bing, 83. It does not 
 necessarily follow that the defendant is m pay the costs of taxation, though less 
 than one-sixth be taken olT; although if more be disallowed, the plaintiffs attorc y 
 is bound to pay these costs. Tho court hove a discretion which they may exer- 
 cise according to the reasonableness or unreasonableness of tho charges in tho 
 bill, whether they will make the defendant pay the costs or not I have always 
 understood that where an attorney wilfully inserts any item of charge, even one 
 shilling which ho must know ought not to be charged, ho is not entitled to the 
 costs of taxation :" Uoldcrncss v. Barkworth et al, 8 M. AW. 341. Defendant should 
 pay, within the eight davs, tho costs indorsed on tho writ. If he pay more, ho 
 does 80 of his own fault : Ward v. Gregg, 6 Dowl. P. C. 729. Where therefore, in 
 addition to the costs indorsed on tho writ, defendant paid a sum of 5s., demanded 
 of him by plaintiiTs attorney, and afterwards on taxation a sum was taken off, 
 which, with tho Ss., was more than one-sixth, but without it, less than one-sixth 
 of the bill ; it was hold that the attorney was not bound to pay tho costs of 
 reference; lb. 
 
8. 15] 
 
 INDORSEHEItTS ON WRITS. 
 
 15 
 
 1«S. (A*) In ttH onscs whero the Defondttnt resides within in (Vmanda 
 the Jurisdiotioa of the Court, (/) and the claim is for a debt um. (I'muidii, 
 or liquidated demand in money (ni), with or without inte- ti< u'ln^ii'mnv 
 rest (n), arising upon a contract express or implied, (o) as for uutuo'writ. 
 
 (k) Adopted from En;;. Stnt. 15 A 10 Vie. cap. 70, s. 25. Founded upon first 
 rejxirt of ttio Common Law CommiflsionerR, s. 50. Thu object of this crmctracnt 
 is to provcnt the cxponao of a dcclnrntion : Jiodiraif v, I.urai, 10 Ex. (i67, per 
 rollock, C. U. The very great majority of cases in which actions are brought are 
 "(li'l)ts"or " money domaiulH," to wliiuh tliero in no defence. It has been con- 
 sidered extremely desirable that in such cases the parties should be put to tlio 
 least possible expense: per Martin, B., same case. 
 
 (/) This section does not apply to proceedings taken either under sections 43 
 or 45, for in each of tlioso cases defendant is supposed tr> bo " without the juris- 
 diction of U»e court." 
 
 (m) It should appear upon the face of the indorsement that the claim is for a 
 li.|iii(iuted demand : Rogers v. Hunt, 10 Ex. 474, j>er Parke, B. Wltcre in an 
 nctiou on a bill of exchange, the indorsement on the writ was £31 8s. 9d., being 
 balance of principal, interest, and eipemes of nof'ng, Ac. ; Held that the latter item 
 V 11.4 not a liquidutcd demand : lb. The cnilorsement consequently was treated aa 
 n nullit}', and pluintilf held bound to declare iu the ordiuary uiaunci' : lb, 
 
 (n) Tlie indorsement applies solely to claims which are liquidated, and do not 
 depend on the finding of a jury: Jiodtoay v, Lucat, 10 Ex. 667, »er Parke, B. 
 Tlic court in a later case said, " We wish timt it should bo distinctly understood 
 by the profession, that in all cases except bills of exchange and promissory notes 
 (lis to which it is the usual practice of the court to allow interest as a matter of 
 course when the jury give a verdict for tho plaintiff), if wo find that any party 
 not entitled to interest under an express or implied contract shall nevertheless 
 clniiii it by special indorsement on tlio writ, in order to gain an improper ndvan- 
 ta<;o, and in default of appearance bign judgment for a larger sum than he is 
 really entitled to, wo will not only set aside such judgment, but visit the attorney 
 with tho consequences of his abuse of the law, by making him pay tho costs : ' 
 Roih'a'j V. Lucas, 10 Ex. 67- , per Pollock, C. B. The amount of a judgment debt 
 lins been held a liquidated demand in money within tho meaning of the section : 
 Iloiholl v. Baxter, E, B. & E. 884. The Into Sir John B. Robinson held that 
 accounts delivered, but not liquidated by admission of the defendant, were not such 
 debts ns intended by the section: McKinntry v. Arnold, 4 U. C. L. J. 68. Tho 
 Common Pleas afterwards decided that an account for work and labor, with the 
 usual claim for interest, giving credits and claiming n balance, are tho subject 
 of special indorsement: Ismart v. The Niagara and Detroit Rivera Railwat/ Co, 12 
 U. C. ('. P. 404. See further Northern Railway Co. v. Lister, 4 Proc.'U. 120. 
 Hut where a writ was endorsed thus : " The following are the j)nrticular8 of tlio 
 plaiiitifF's claim, £490 IBs. lOd., on a recognizance dated tho 6th day of July, 
 A.l). 1856, conditioned by }ou for the paj'nient of £3,000," the judgment entered 
 tliercon in default of an appearance was set aside as irregular, witli costs: liuell 
 V. Whitney, 11 U. C. C. P. 240. See further section 55, and notes tliereto. 
 
 (o) Whero tho claim is for a debt, Ac, "with or without interest, arhlng upon a 
 ennlract express or implied, Ac," means with or without intcnul arising u/nn a con- 
 tract expntscd or implied, and does not apply to any case wiiere it is optional witli 
 the jury to give interest as they may be advised according to tho justice of tho 
 case • iiodway v. Lucas, 10 Ex. 672, per Parke, B. But, per Draper, C. J., " it 
 has become so settled a practice to allow interest on all accounts after tho time 
 for payment has gone by, and particularly upon tho balance of an account which 
 
16 
 
 THE COMMON LAW PRUCEDUIIR ACT. 
 
 [9. 15. 
 
 lli 
 
 No ftirth«>r 
 imrtirulnrH 
 
 Herd lit' 
 
 Kivfii iinU'SB 
 iiriliTtil. 
 
 instanoo, on a Bill of Exchange, Prouiissory Note or Cheque, 
 or other simple contract debt, or on a bond or contract under 
 seal for payment of a liquidated amount of money, (;>) or on 
 a statute where the sum sought to be rcoorcred is a fixed 
 sum of money or in the nature of a debt, or on a guarantee 
 whether under scnl or not, where the claim against the prin- 
 vipal is in respect of such debt or liquidated demand, bill, 
 note or cheque ; — The Plaintiff may make upon the Writ of 
 Summons and copy thereof, a special indorsement of the par- 
 ticulars of bis claim, (q) in the Form A. No. 5, or to the like 
 effect ; (r) and when the Writ has been so indorsed, the 
 
 I8«a f "" I' 
 
 imports that tho accounts on each sido arc niado np, and only tho difToronco 
 clikiiiied, that I do not think wo sliould treat tlio claim for interest as vitiatin;; 
 tlio special endorsement:" Smart v. Detroit d' N. d- 1). Jiiv. li. Co. 12 U. C. C T. 
 404. See also Northern Ji. Co. v. Litter, 4 Prac. II. \ 20. 
 
 (/>) Qui tarn actions included : see Hall v. Scot»on, Ex. 238. 
 
 (q) The indorsement necessary under section 11 is compulsory. This indorse- 
 ment is discretionary. I'laintitf, if ho omit it, must declare in the usual manner, 
 and deliver his bill of particulars according to N. R. 20. IVovided that if tho 
 case be proper for a special indorsement and the same bo omitted, then plaintiff 
 shall not bo entitled to tho costs of tho declaration, die. : sec Eection 57. 
 
 (»•) A reference to tho form given in tho schedule, by way of example, will 
 show that plaintiff may in his indorsement give credit, as has been commonly 
 done in narticulars of demand under the old practice. Where in aMiimpiil for 
 
 foods, the particulars contained nn item of pavnicnt, "Cr. by bills, £1,500;" 
 feltl that it was to bo taken as payment by the (lefendant to plaintiff: Sniet/inriit 
 V. Taylor, 12 M. <b W. 646. If a plaintiff give credit in his particulars of demand 
 for o sum paid bv defendant, such payment is held to bo Jipon tho same footing 
 as if there had ocen a plea of paj-mcnt: Goatley v. Herring, 12 L. J, C. P. 82. 
 liut it cannot bo taken as an admission as against defendant with respect to any 
 particular items in tho account : lb. Tho court held in one case thot they could 
 not compel plaintiff to state tho items or sums of money for which ho voluntarily 
 gave credit in his particulars : Mi/att v. Orecn, 13 M. tb W. 377. It was also held 
 that plaintiff was not precluded from explaining admissions in tho particulars of 
 payments mado to him by tho defendant, and of showing on what account such 
 payments were mndo : Mercy v. Oalot, 3 Ex. 861. It is not necessary for a defen- 
 dant in this Province to plead payment of any sums credited in the particulars. 
 The following aro tho rules upon the subject; " In all cases in which the plaintiff, 
 in order to avoid tho oxpenso of tho pica of payment or set off, shall have given 
 credit in tho particulars of his demand for any sum or sums of monoy therein 
 admitted to have been paid to the plaintiff, or which the plaintiff atfmits the 
 defendant is entitled to set-off, it shall not be necessary for the defendant to plead 
 tho pa3-ment or set-off of such sum or sums of money. But this rule is not to 
 apply to cases where tho plaintiff, after stating the amount of his demand, states 
 that he seeks to recover a certain balance, without giving credit for any particular 
 sum or sums, or to cases of set-off where tho plaintiff does not state the particulars 
 of such set-off:" R. G. pi. 13. " Payment shall not in any cose bo allowed to be 
 given in evidonco in reduction of damages or debt, but shall be pleaded in bar:" 
 R. 6. pi. 14. Tho Rules Pr. IS and 14 are substantially a re-cnactmunt of our old 
 
 '- i 
 
8. 
 
 lO.J 
 
 8KBVI0E OF WRIT OF SUMMONS. 
 
 1" 
 
 indontcmont shall bo considered as particulars of demand, 
 and no further or other particulars need bo delivered unless 
 ordered by tho Court or a Judge, (a) 19 Vic. c. 43, s. 41. 
 
 10. (0 Tho Writ of Summons, whether issued by ono of writK irhik <i 
 the Superior Courts or by any County Court, moy bo served tiu'couru 
 in any Couuty in Upper Canada, (m) and tho service thereof, i'MviMi'in 
 whenever prncticoble, shall bo pcrsonol ; (y) but tho Plaintiff ""> ^'"""«5'- 
 
 Rule 15 of E. T. n Vic. And tho latter wns copied from tho English Rido 10 
 of T. T. 1 Vic. Tlio Eni^liHli rule was nimio to Hotllo ilouhts whicli nroRo in tho 
 ciisus of h'l-neKt v. Jh-meu, H BiiiR. N. C. 674 ; Ak'fioll v. IH/Z/awM, 2 M. «k W. 758 ; 
 Kanion V. UIiXm, 2 M. A W. 7tl4 ; CoateK et al v. Stemm, 2 Q. M. A R. 11 8 ; liooth v. 
 Uoii-iml, 5 Dowl. r. C. 4:?8. Hinco tho Eiife'liah U»ilo 19 of T. T. 1 Vic, wIuto. to 
 nn iiction of debt for'£44 88., tho defendunt ]>lcnded jmj'mcnt of £16 in sntisfne- 
 lion, tlio ploft wns licM to bo p;ood : Tnt'ncr v. CoU'im, 2 L. M. 4 1'. 99. Tho 
 xvnmn bpinjj thnt since credits tfiven in tlio pnrliculors of demand need not non< 
 he pli'iukd, n loss sum than tho di>bt in tho declnration might, witli credits so 
 j;ivt'n, bo equal to such debt: Ih. Our old rule does not apply to set-off: Jiowluud 
 V. Jlliikulct/ et al. 1 Q. IJ. 4u3; Townnon v. Jticknoii, 14 L. J. Ex. 57. Further as to 
 cicilit in porliculors of demand, see Morris v. Jones ct «', 1 Q. B. 897 ; J>amb et al v. 
 Mi'kilhimit, lb. 40u; Kecmrv. Knme>i cl al, 4 U. C. (J. ]l. 47 ; Jiatlirickv. Ilarman, 
 C M. <k W. 18 ; Nosotll v Pajc, 20 L. J. C. P. 81 ; I/arria v. Mmitgomcry, lb. 221. 
 
 (s) It has boon made a question whether a defendant who has indorsed bis writ 
 uiidt-r this section can subsequently deliver fresh particulars with his Jcclaration, 
 and proceed thereon. Tlio words " need bo " rather argno that plaintiff may 
 deilvt-r other particulars if ho chooses: Fromant v. Ashley et al, 1 El. & IJ. 72:!. 
 i/cr Campbell. C. J. If plaintiff have not tho right to do so and notwilbbtond- 
 in;; deliver frosh particulars, such a step will bo irregular only and tho irregu- 
 larity waived if defendant plead over: lb. Beforo tlio C. L. P. Acts, in a case 
 wlitro there was no waiver by defendant, it was held that plaintiff was concludid 
 by tho particulars he first delivered, and was also held to bo unable to euro any 
 dificts therein by delivering fresh particulars: IJrownv, Walls, 1 Taunt. 35^. 
 Pjiit it appears to bo now tho better opinion that a plaintiff who declares is not 
 liiiiitc'd in his declaration to tho particulars of his cause of action spocially indorsed 
 ou the writ of summons : Soiodcn et al v. Sowden, 4 Prac, II. 276. 
 
 (0 Taken from Eng. Stat. 15 A 16 Vic. cap. 76, as. 14, 17. Founded on first 
 Report of tho Common Law Commissioners, section 8. 
 
 («) Tho old practice required tho writ- to bo served within tho county " therein 
 mentioned, or within two hundred yards of the border thereof, and not else- 
 where:" 12 Vic. cap. 63, s, 22, cojiiod from English Act 2 Wm. IV. cap. .S9, s. 1 ; 
 nisi) see Simpson v. Ramsay, 6 Q. B. 371. Formerly, if it were discovered that 
 defendant had removed to a county other than that " in the writ mentioned," it 
 became necessary to issue nn alias or plnries writ, descril)ing defendant as being 
 " Into of the county of, Ac. :" Old Rule 5 II. T. 13 Vic. This mode of proceeding 
 caused Itoth delay and expense, and was besides wholly unnecessary, inasmuch 
 ns t!ie writ was directed to the defendant, ond not to tho fihcrifTof any particular 
 ccjiinly. Tiio commissioners, unabio to soo "any advantage whatever arising 
 from tho restriction," advised its removal. 
 
 (v) Beforo this enactment, the judges in En";land cnmo to a determination that 
 ns (I general rule the service should bo personal in all cases: Ooyffs v. Lord Hunt- 
 hi'jlomr, 1 D. A L. 699; Christmas v. Mcke, 6 D. A L. 166. There was no proper 
 2 
 
18 
 
 TUB COMMON LAW PBOCEDURE ACT. 
 
 [g. 16. 
 
 hi 
 
 1- i: 
 
 Ml; i • 
 
 9m r-'r 
 
 may on oiEdavit, fruin tiuio to time opply to tho Court out of 
 which the Writ issued, or to a Judge having jurisdiction over 
 
 e(|iiivnlcnt: ffraHil Junction Water Worki Co. v. Roy, 10 L. J. C. P. 200; Rtuull 
 V. /xjiw, 2 Dowl, N. 8. 288. Unloss an nndortnliiiiK by nn attorney to appear, 
 wliicii is onfurcod by nttaclimcnt: Anon, 2 Chit. R. 80; Morrii v. Jamn, ])uwL 
 p. C. 614 ; Jitvoh V. Mnmuvi, 12 L. J. (j.I). 03; aliio see R. G. pr. 8. If defendant 
 avoided sorvico, then plaintiflf was driven to a writ of distringas : Blake v. C'oo/>cr, 
 II C. B. 080. Sorvico wherever " practicable," nuist still, as horotdfore, be per- 
 aonal. Personal service means serving tho defendant witii a copy of the process, 
 and showing him the original if ho dosiro it : Ooffffn v. Lord J/iiutintftoiefr, 1 D. d: 
 L. BOO, per Alderson, li. Tho copy of tho writ must bo left with and nut merely 
 ahown to defendant : Worley v. (Jloner, 2 Str. 877. ThoHj?h defendant refuse to 
 tako tho cony, if tho person serving it brina; it away with him, tho service will 1m! 
 dofootive : Pigeon v. linice ct at, 8 Taunt. 410. A sheriirs otiicer took a writ intended 
 for one |)erson to another person of tho same name ; ho was informed by defendant 
 of his error, and took back the writ saying that ho would go to tho other party, 
 the defendant having agreed that if he wero wrong in his supposition, ho woulil 
 consider the service good, if tho writ wore loft for him at tho house of a third 
 party named. Tho otHcor neithor served tho other party nor left tho writ for 
 defendant as directed, tho plaintiffs nevertheless ])rocceded against defendant. 
 Tho service and all subsequent proceedings wero set aside f"r Irregularity ; Jirwiu 
 V. I'owleif, 2 U. C. Q. I). 270. Tho original writ need not be shown, unless defen- 
 dant at or within a reasonable time after service, nuike n demand to see it: J'etil 
 V. Ambrone, 6 M. it S. 274; 77tom<M v. I'carce, 2 B. «k C. 701. A nuartor of nn 
 hour held to bo a reasonable timo: WeslUi/ v. Jones, A Moore, 162. Where, at tia- 
 time of service, an inspection of tho original was demanded and refused, the ser- 
 vice was set aside with costs: We/ler v. Wallace et ul, M. T. 1 Vic. M. S. R & II. 
 Dig. " Process," 4. " Personal service" has never been defined by tho legislature. 
 Each cnso is left to depend on its own particular circumstances. Tne courts 
 have not held it necessary to put process into he actual cor/toral pos.sesslon of 
 the defendant to constitute a personal service ; but have looked more to the 
 object of the service — timely notice to defendant of an action connnenced against 
 him : soo Shechy v. T7ie rrofemional Life /«*. Co., 18 C.B. 787. Whether under tho 
 particular circumstances of each case this object has been accomplished Is a qui.s- 
 llon for tho court or a judge. Various cases under the old practice shew that 
 tho expression "personal service" is not to be understood In tho strict sense of 
 tho term, thus, where a writ was put through tho crevlco of a door to defen- 
 dant, who had locked himself within, tho service was held to bo sufllolent : Smith 
 V. H'ii'n//c, Barnes, 405. So where tho writ had been enclosed In n letter to defen- 
 dant, which ho received, and out of which ho had taken tho cojiy : see Boxwell v. 
 Jioberts, Barnes, 422; AlilnJ v. Uicks, 5 Taunt. 186. But service upon a wife, 
 flgout, or servant, is not personal sorvico : see Frith v. I^rd Donegal, 2 Dowl. P.C. 
 527 ; Davies v. Morgan et al, 2 C. <& J. 287 ; (Joggs v. Lord Huutingtoiccr, 1 D. A 
 i.. 600; Christmas v. Eieke, 6 D. A L. 166; Price et al v. Thomas, 11 C. B. 648. 
 "tVhero tho officer on seeing tho defendant at his window, told him in a loud tone, 
 that he had a writ against him, at tho plaintiff's F>uit, and holding out the copy, 
 threw it down and left it in the garden, in defendant's jiresenco ; lielu not a sulli 
 dent personal service : Heath v. White, 2 D. & L. 40. In a case where service 
 was denied by the defendant, but tho officer sworo positively to Its service per 
 Bonally on defendant, an application to set aside proceedings was refused : Coate» 
 V. Hornby, 1 Cham. R. 135. If there bo more defendants than one, each should 
 bo served os If ho wero sued alone, except In the cose of husband and wife, when 
 service on tho husband for both, will be sufficient : Buncombe v. Love, Barn. Notes, 
 406; Collins v. Shapland, lb. 103. It is Irregular to servo process on a witness 
 while attending a court of iVwi Priiu, under subpoena: I'houipaon y.Calder, 1 U.C. 
 
B. IG.] SERVICE OF WRIT Or SUMMONS. 10 
 
 the case, (»c) and if it nprcnrs to auch Court or .Tudj^o that if *.rvi.'. 
 rcasonnblo efforts hav3 been niado to effect pcrsotiul service, \/'"' 
 
 1.1 liiiiiirtii 
 
 and cither tliat the Writ has coAio to the knowlcdpo of the '"^""*"" 
 Pefundant, or tliat ho wilfully evades sorvico of the sninc, (r) 
 
 Q.n. 40.*). Sorvico upon n dofondant wlillo attondlnt; tlio nfmlzcn, ax plnlntifT in a 
 civil iiction pondiii); und unt«<rcd fur trial, livid );(hhI : I'/tompKon v. l'ul'l<r, 1 U.C. 
 II IJ. lus, doubted ; Citu of Klnqnton v. Jirown, t V. C. il H. 117 ; iw bIho Cole v. 
 li„iekin», 2 Str. U»y4 ; Kole v. 'OohU, 1 II. dt N. «0 ; 8. c. 27 L. T. U. 1 10. 
 
 Il>«v. Oerry, 2'lL.T.TX. 
 
 (w) (. r, Court In terra time — Judge in vacation i 
 «2 ; 'Jmld V. AV<«>M, 22 L. T. U. U»5. 
 
 (/) Tliifl provision is a now one, subHtitntcd in lieu of the practice, by diHtrin- 
 ^ns to compel an n|)pcaranco. Tlie distrin^^as is suixTHedcd, liuoauHC tliore is no 
 lonsjor nny necessity for it. Wlierover under the old practice, a distrinKii'* could 
 iiii\t> boon obtained, it mnj* be laid down as a general rule that an application 
 iiini'i; uruler tbls section will succeed. Of course tliero may bo exceptions. That 
 of n luiMttic defendant noticed below is one. Two cases are contemplated by t'lii)^ 
 si'ctitiii. 1. Where tl>o writ has coino to the knowledge of defendant. 2. Or wliere 
 111' wilfully evades service of the snmo. In support of tlie application, it U very 
 clear under this section, that the aflidavit must show — 1. That reasonable etforts 
 liavc been mode to effect personal service. 2. That Mio •,rlt has como to the 
 knowledge of the defendant. 8, Or that ho wilfully cvuden .service of the snnie. 
 
 1. As to what will bo considered reasonnbUi efforts, Ac., see Gale v. Winkm, 
 3 Biiig. N. C. 294 ; AFdlt v. Ihultiee, 1 Dowl. :;..-). 707; Crofta v. Ih-owt, 11 L. .1. 
 (). n. 232 ; liHMell v. Knowlea, 2 D. A L. 606 ; Cro»» v. Wllkim, 4 Dowl. 1*. C. 279 ; 
 }{ock cl al V. Adam, 1ft L. J. C. P. 192; Greenwowl v. Schlm etal, 9 Dowl. r.C. 72 ; 
 Ximmmv. Winter, 4 Blng. N. C. 087; Jamitionv. Mllkim, 2 Dowl. N. H. 331 ; 
 Mcr v. Coe, I Ex. 163 ; Anon, 2T>. A L. 1001 ; Johison v. Roum, 1 Dowl. \\ C. 
 Ctl; Moo(li/v. Morgan, 7 Dowl. P. C. 144; JVeiPwwH v. Hickman, 9 Dowl. I'. (-. 
 54ii; inn v. Monle, 2 Dowl. P. C. 10; Mxher v. Goodwin, 2 C. »t J. 94 ; \Vakelf;i 
 V. TcMlak, 2 L. M. A P. 85; Dubois v. Lowlher, 4 V,. B. 228; Kitcfiin v. ll'/7«o« it 
 al, 4 C. II. N. S. 483 ; Davics v. Westmacott, 7 0. 15. N. S. 829 ; Florer d al v. 
 Allan, 2 II. A C. 688 ; Govil'er v. Fannileroii, 2 Week. Notes, 37 ; Tomlinson v. 
 Uonlbj, L. R. 1 C. P. 230; Oorriwjcv. Terreimt, 2 L. M. A P. 12. 
 
 2. As to tho writ coming to defendant's knowledge, seo Thomas v. Pearrr, 4 D. 
 (t U. !!17 ; Goffqs V. Lord Jlnnlin^tower, 1 D. A L. 699 ; Rhs»cH v. Kiwwles, 2 I>. 
 i L. 505; Heath v. White, 2 D. A L. 40; Christmas v. L'icke, 6 D. A L. 15«. 
 
 !!. As to defendant's keeping out of tho way to avoid service, see Houghton v. 
 Uointvth, 4 Dowl. P.O. 749; Channingv. Cross, 9 Dowl. P.O. 118; Wdkins v. 
 ■loneK, 15 L. J. Q. B. 220 ; Gorringe v. Terrewcst, 2 L. M. A P. 12 ; McDonough v. 
 McCartney, 3 Jr. C. L. R. 239 ; lit)rne v. Sherloch, 8 Ir. C. L. R. App. xxxil. 
 
 Though an attempt has been liero mado to separate cases, it will be evident 
 that the two latter states of circumstances must bo more or less blended. If 
 defendant wilfully ovado service of tho writ, it must bo presumed that It bus eome 
 to ills knowledge. If It has come to his knowledge, and he cannot, after repented 
 efforts, bo personally berved, it may bo presumed that he wilfully oviidis Ht-rvice 
 of the same. Tho presumption must oppear to the court or n judge upon facts 
 to he disclosed upon aflidavit. Tho plaintiff should detail the attempts at service, 
 nnd then show why service has not been effected : seo Milkr v. O'Jlrieu, 1 Ir. Jur. 
 N.S. 109 ; Oradg v. Kearney, 8 Ir. C. L. R. App. xllv. Tho case of a lunatic de- 
 fendant is not In express terms provided for by tho legislature. The court refused 
 to supply tho omission In a case before them, and refused to grant an application 
 made under this section, where defendant was a limatic, and It was not shown 
 that tho writ had como to his knowledge, or that he wUfully evaded service of 
 
''"■i-^l 
 
 20 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. IG. 
 
 and has not appeared thereto, (i/) such Court or Judge maj 
 by order (z) grant leave to the Plaintiff to proceed as if per- 
 sonal service had been effected, subject to such conditions as 
 
 (rt) 19 Vic. c. 43, ss. 31, 
 
 to the Court or Judge seem fit 
 
 34. 
 
 the siinie : Holmes v. Service, 1 5 C. B. 293 ; sac also MlUiamsoti v. Maggs, 28 L. J. 
 Ex. f\ ; liiih/wnu v. Cannon, 2 W. U. 4.T>i. Unilor the old practice, n distringas 
 would liiive been granted in iliiso.-xso: see Jiawxou v. Afoss, 8 Dowl. P.O. 412; Joum 
 V. J-Jiucm, 8 Dowl. P.O. 425 ; JU-jkc v. Cooper, 11 0. B. CSO ; Wilkim v. Jonc», .3 D, 
 <fe L. 747; Sheppardv. Willinvia. 11 C. B. (182; Ihinfieldy. Darell, 13 L. J. (J. B. 
 202. And rlio court of Ksclioriuer bus hold t'lat if iu bo shown that the writ 
 has come to the knowledge of tlio huiatic, the statute is ajiplicablc : Ktmhtrlfj v. 
 Alleiotc, 8 L. T. N. 8. 3'.»8. Servieo of process on a lunatic allowed by serving 
 the inniiager of tlio asylum in which the lunatic was confined : Wilmot v. Murmion, 
 8 Ir. L. II. 224. So service on brother of the huiatic and keeper of the lunatic 
 allowed: ]''iincc v. O'Vounor, 11 Ir. L. 11. 6U. If the keeper refuse service, nn 
 attachment niaj' issue against him ; iJanson v. TAjCaprlain ct al, 21 L. J. Ex. 2111; 
 Dniixon <t al v. I/aniuif/n vl al, 2 Week. Notes, 17. Service on a prisoner under- 
 going penal servitude, held to be good service: Corby v. liobuinon, 5 Ir. Jiir. 
 N.S.ini. 
 
 (»/) Tlie affidavit must, in addition to the above, show the fact (l^at no appear- 
 ance has been entered : see McAljihi v. Grcgor;/, 1 C. B. 299 ; JJragc v. liinl, \) 1). 
 »fe L. 617. The search for appearance should bo as recent as possible before 
 making application: see I/ovkcrv. Towusrnd, I Ilodg. 204. If practicable, on the 
 same (lay that application is made : Speitcc v. Barker, 8 Dowl. I'. C. 29(). Four 
 d:iys too lale: J)r'>nkwatcr v. Mills, 12 (J. B. 452. The aflidavit must show when 
 the eearoii was made : McClahic v. Abrahams, 3 Scott, N.ll. 474 ; s. c. 10 L.J. CI'. 
 318 ; renncy v. Thomas, 6 L.J. C.P. N.S. 55. The day of search must be shown to 
 be after the expiration of the time limited by the writ for defendant to appear: 
 Brian v. IStritlon, 1 C. «fe M. 74 ; s.c. 1 Dowl. P.C. (542. The service of the writ niu-t 
 be shown to have been regular : Wukelcy v. Tecsdalc, 2 L.M. & P. 85 ; Fitzgerald v, 
 Emits, 5 M. «fe (t. 207; s. c. (5 Scott, N. 11. 220. If the affidavit be amended, and 
 delay therebj' ensue, a fresh search must be made : McChdnc v. Abrahams, 3 Scott. 
 N. U. 474. The old practice also made it necessary for the affidavit to state the 
 place of defendant's residence, or else explain that eilbrts to find the same were 
 unavailing: Crofls v. Brown, 2 1). tfe L. 935 ; s. c. 7 Q. B. 284; llaltoii v. Wink, 
 2 il. & (t. 295 ; Boieser ct al v. Ausleii, 2 C. A' J. 45 ; Bradbee v. Gustard, 1 Dowl. 
 N. S. 295 ; Rmsell v. Knowlcs, 1 M. & G. lOol. 
 
 (-) Order in general absolute in first instance, and need not be served: TJur- 
 riiiger v. llandky, 12 C B. 720. An order so obtained was set aside upon nn i 
 aflidavit made on the part of defendant " that at the time of the issuing of the 
 writ and down to the time of the swearing the affidavit, the defendant was onloj\ 
 the jurisdiction r' llcskcth v. Flamvg, 24 L. J. Q. B. 255 ; see also Floivcr it al v. 
 Allan, 2 II. A C. 688. An appMcation to rescind the order may, it seems, bcninde I 
 upon affidavits, contradicting those upon which the order was obtained: JInlly. 
 Hcotson, 9 Ex. 238 ; but SCO Whitakci- v. Crocke-, 2 L. M. & P, 76 ; Naef v. JUitttcr, I 
 12 C. B. N. S. 816. 
 
 (a) The application, though it cannot be made until the expiration of the tiiiw I 
 limited for defendant to appear : Brian v. iStretton, 1 Dowl, P. C. 642. Should not 
 be delayed for an unreasonable time thereafter: see Bromage v. Ray, 9 Dowl. P.C. 
 559. Two months have not been considered an unreasonable time : see Peyton li 
 al V. Wood, 15 M. & W. 608. The court will not in general interfere with the 
 direction of a judge iu chambers refusing Icavo to proceed: Ihmlinson v. Goatln, \ 
 L. II. 1 C. P. 230. 
 
 ■ 1 
 
3. 17.] 
 
 SERVICE OF WRIT ON CORPORATIONS. 
 
 21 
 
 17. (J)) Every such Writ issued against a Corporation 
 afTCgate, (f) and in the absence of its appearance by Attor- 
 ney, all papers and proceedings in the action before final 
 judgment may bo served on the Mayor, Warden, Reeve, Pro- 
 si'lent, or other Head Officer, or on tho Township, Town, 
 City or County Clerk, (d) or on tho Cashier, Manager, Trea- 
 surer ov Secretary, Clerk or Agent of such Corporation, or of 
 any branch or agency thereof in Upper Canada ; (c) and 
 every person who, within Upper Canada, transacts or carries 
 
 Sorvicp on 
 Ciiiiiura- 
 tiiiiis, hdW 
 cl'culcd. 
 
 {li) First part of this section taken from Eiijj. Stat. 15 & 10 Vic. cnp. TO, s, 16. 
 Aiipiies only to corjioralions wliose eliiof pliico of business is in Ujiper raniulu, tho 
 RMiiJi'iukT of the section applies to foreign corporations: M'ilsoiiv. Tlic Detroit 
 awl Milimukce Railway Co., "> Trac. II. 37. 
 
 ((■) A corporation sole must be personally served. The old mode of proor ,",ing 
 against eorporalioiis aj>wru<>;iite is pointed out in Tidd. N. P. 81, tt atq. tiimolc, a 
 suMiinmis directed to the commissioners of the admiralty, must, ho served upon 
 eaoli: II7///((»is v. 77ic Lords Commissioners of the Adiiuralti/. 11 O.JJ. 121). It was 
 inliinatcd that defendants were not a corporation ; Jb. As to the etfcct of service 
 ni' a writ on the president of a bank after forfeiture of charter: sac l!rooke v. 
 Bunk of Upper Canada, 4 I'rac. 11. 16'2. 
 
 ((?) "Clerk" — Some principal oflieer is meant, not a mere clerk for instance in 
 tlie (iliice to the secretary to the corporation : see Walton v. The Universal Salvage 
 
 Co., 1(5 .M. &, \v. -i;;8. 
 
 (c) Substantiallj' a re-enactment of Stat. 12 Vic. cap. 03, s. 28. The words of the 
 En;,'. (,'. L. P. Act, " Mayor, or other head oflieer, or on the town clerk, clerk, 
 truiusiin'r, or secretary of such corporation," are the very words made use of in 
 Knir. Siat. 2 Win. IV. cap. S!), s. 13. Onr statute 3 Win. IV. cap. 7, provided " that 
 all writA and process ai law hereafter to bo issued a<j;ainst any body or bodies 
 eorpurate, in the commencement of any oclion, and all jmpors and proc(!edinu;s 
 lici'oi'o tiiial judgment in an}' such action, may be served on the president, pre- 
 siiHii'^ ollicer, cashier, secretary, or treasurer thereof, in tho s.imo manner as 
 U|i()n any individual defendant in his natural capacity, or on. such other person, or 
 ill mch other manner as the eouri in whieh the aelion shall be broiujht, inai/ direct." 
 Till' ofliiiers named are all included in our C. L. V. Act; but it is important to 
 niiti((! the wide discretionary power which was vested in the courts b}- the sen- 
 ti'iicc italicized, and which has been dropped i« the consolidation of the statute in 
 tlie text. A service on any one, other than the oflicers named in the statute, wns 
 ri'ijuii'i'd to be made upon some person representing the interests of the corDora 
 tion: Sherwood ei al v. The Board of Works, 1 U.C.ti.B. 517, ;>f Ilagenna'i, .1. It 
 WI18 lu'ld thai where the corporation (the Board of Works) were in Lower Canada, 
 Imi had work iinder contract in Ujiper Canada, process could not be served on 
 the (Mi^-irieer in charge of Lhe works in Upper Canada, as tiiere was nothing to 
 ?lmw :li,;t he had any share in making tho contracts, or that he had authority to 
 liiiiil or represent the corporation ; and the court refused to direct that a copy of 
 tlio process put up in the crown oflice should be deemed valid service on dtfen- 
 (laiit.-; ]li. IJeforo taking proceedings against a corporation created by or in 
 linrsnaiice of an act of i)arliaiHent, it will be advisable to consult the pai'ticular 
 act, a.-i it may prescribe a mode of procedure different from that laid down in this 
 act, and may be obligatory on the parties to pursue its special provision. Service 
 on a director of a company, registered under Kng. Slat. It) & 20 Vic. ca]». 47, held 
 bad : Townc v. 'Ihc London and Limerick Steamship Co., B C. B, N. S. 7S0, 
 
22 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 18. 
 
 • j 
 
 Time of deli- 
 very of Writ 
 nt blu'rilf's 
 offlce to be 
 enUuracd. 
 
 If not serv- 
 ed within 
 tlftccu (lays 
 may lie 
 witlidi;i\ni 
 and served 
 by any lite- 
 rate iierson. 
 
 on any of the business of, or any business for any Corporation 
 whose chief place of business is without the limits of Upper 
 Canada, shall, for the purpose of being served with a Writ of 
 Suniinons issued against such Corporation, be deemed the 
 agent thereof. (/) 19 Vic. c. 43, s. 33 ; 3 W. IV. c. 7, s. 1. 
 
 18. (jf) Upon the delivery of the Writ of Summons at 
 the office of any Sheriflf to be served by him, he, his Deputy 
 or Clerk, shall end'^rse thereon the time it was so deli- 
 vcrcd, (K) and in case the Writ is not fully and completely 
 served within fifteen days after such delivery, the Plaintiff, 
 his Attorney or Agent, shall be entitled to receive back the 
 same, and such Sheriff, Deputy Sheriff or Clerk shall endorse 
 thereon the time of such re-delivery, and in the taxation of 
 costs, the costs of the mileage and service of such Writ by 
 any literate person afterwards, shall be allowed as if the same 
 had been served by the Sheriff or his officer; (i) and if such 
 Sheriff neglects or refuses to return any such Writ after the 
 expiration of the said fifteen days, the Plaintiff may issue a 
 Duplicate, or concurrent Writ on the Prcecipe already filed, 
 and the costs of the first or other Writ not returned may be 
 charged against and recovered from the said Sheriff by the 
 
 (/) The latter part of this section authorizes proceedings agninst a foreign 
 corporation, provided such corporation have an ogent in Ontario for the transac- 
 tion of tlio business of the corporation : see Wilson v. Tlie Detroit and Milwaukee 
 R li. do., 3 Prnc. R. 37. Ktsbey v. The Cheater and Holyhead Railway Co., 6 Ir. 
 C. L. R. 303. lint the station master of a railway company, the head office of 
 which is not within Ontario, is not an agent on whom service can be effected 
 under this section : Taylor v. Grand Trunk R. R. Co., 5 U. C. L. J., N. S., 18; 
 see also ThompKon v. N. li. K. R. Co., 42 Law Times, 95, Ex. M. T. 1860. This 
 provision in cases of contract, can only apply either wiiere tlie contract has been 
 entered into in tliis province, or enterecl into abroad, to be executed here : see 
 Thelwally. Yelverton, 12 W. R. 87?. In connexion with this note, two English 
 decisions may be mentioned, though each of them turned it is conceived upon 
 the particular circumstances of the case. 1. Wihon, v. I'he Caledonian R. R. Co. 
 5 Ex. 822, where the principal office was in Scotland, service on the sev'.retnry 
 while in London on temporary business, was held good. 2. Evans v. Dublin and 
 Drof/hida R. R. Co., 2 D. &, L. 8t)5, where the principal office was in Ireland, auJ 
 •there was no office in England, service upon one of the directors of the compaii)' 
 in London, was held to be null and void. 
 
 {(j) Original. Not in the English Common Law Procedure Acts. 
 
 (/t) Shall — imperative : Con. Stat. U. C. cap. 2, s. 18, sub-s. 2. 
 
 («) Tlic rule is not to tax mileago, &c., unless where mesne process is served by 
 the Sheriff; section 19. This sectiori is an exception to that rule created owing 
 to tiie necessity of the case. If the Sheriff return the writ within the time 
 liuiited, ho is not apparently subject to any penolty. 
 
8. 19.] 
 
 SERVICE OF WRIT OF SUMMONS. 
 
 28 
 
 Plaintiff or his Attorney. (> ) 16 Vic. c. 175, ss. 13, 14. 
 See 20 Vic. c. 57, s. 28. 
 
 19. (A-) The person serving (J) such Writ (m) shall, within 
 three days next after such service, indorse thereon (n) the 
 
 (j) The penalty (payment of costs of writ not returned) arises only in the 
 event of the neglect or refusal of the sheriff to return it after the expiration of 
 the fifteen days: see further Stat. 21 & 28 Vic. cap. 28, ss. 84, 35, 36. 
 
 (^•) The first part of this section is adopted from Eng. Act 15 A 16 Vic. cap. Id, 
 s. 15, ond is suDstantially the same as our old Rule 3 H. T. 13 Vic, which was 
 copied from Eng. R. G. M. T. 3 Wra. IV. No. 6 : Jervis, N. R. p. 94. The origin 
 of the rule is Eng. Stat. 2 Wm. IV. cap. 39, s. 1, from which our 12 Vic. cap. 63, 
 s. 22, was taken. 
 
 (?) Who is the proper person to serve a writ of summons ? Under the old 
 practice, the service of a non-bailable writ of en. re., the process then in use for 
 the commencement of non-bailable actions, could only be effected by the sheriff, 
 his deputy, or bailiff: Stat. 2 Geo. IV. cap. 1, s. 4, now repealed; also sceWhite- 
 Jicad V. Fothcrg'dl et al, Draper's Rep. 210. This was held to bo the law even in 
 !i case where the deputy was a party to the suit : Jiutlan v. A.ihford, 3 0. S. 302. 
 The direction of the Stat. 2 Geo. IV. cap. 1, s. 4, was positive. Though this 
 statute was so construed, it was thought that the spirit of the act had a contrary 
 loaning: Whitehead v. Fothermll et al, Draper's Rep, 210. Before nonbailnblo 
 writs of ca. re. were adopted, writs of summons were in use. When the ca. re. 
 wns substituted for summons (2 Geo. IV. cap. 1 , s. 4) it became necessary to enact 
 tlint the sheriff should serve it, for he could not otherwise have been bound to 
 servo a copy of process which on the face of it required the defendant to he arrested. 
 Hence when nonbailnblo writs of ca. re. were abolished, and writs of summons 
 it-torc'd, under 12 Vic. cap. B.", it was held by Macaulay, J., tliat service by a 
 person other than a sheriff, his deputy, or bailiff, was not irregular : Lcnrh v. 
 Jiirvin, 1 Cham. R. 2(i4. Plaintiffs right to ta.^ costs for such services, was doubted 
 by the learned judge: lb. Subsequently Stat. 16 Vic. cap. 175, s. 13 (now re- 
 pealed), was passed, which enacted that " no fees shall be allowed for the service 
 or mileage of writs of summons or other mesne process, unless served by the 
 sheriff, his deputy, or bailiff, Ac." For a review of our statutes bearing upon 
 the subject, anterior to 16 Vic. cap. 175, see Leach v. Jurvis, 1 Cham. R. 269. 
 Since the latter statute has been repealed, it must be taken that the law is the 
 snme as if it had never been enacted. Then the law would be that laid down in 
 hncli V. Jarvis, by Macaulay. J. Service by any person other than the sheriff, 
 his deputy, or bailiff, is regular. Such is the law at the present time. The writ 
 may bo served by the attorney or his clerk, or in fact by any person who can 
 read and write, so as to bo able to swear that ho served a true copy of the writ, 
 (to. There is no legislative declaration to the contrary now in force in this Pro- 
 vince. The only penalty is loss of mileage, <tc. 
 
 (jh) It is not clear whether the summons hero meant, is the ordinary summons 
 under section 2, and no other. Provision is mode by this act, for the issue df 
 two other forms of summons, one to bo served on British subjects resident abroad : 
 section 43, And the other on foreigners, also abroad: section 45. Since writs 
 of summons on foreigners are not to be serv h1, but only a notice thereof, it may 
 be ]iresumed thr.t the section under coiiside.-ation will not apply: section 45. 
 Until a decision to the contrarj', it will be advisable to indorse tlio time of service 
 of writs served on British sultjccts abroad, as prescribed by this section : 1 Cliit. 
 Arch. 12 ed. 201. 
 
 (?0 The indorsement may be made by a marksman, if able to read writing or 
 printing: Bakery. Coghlan, 1 C. B. 131. Tho rule is sufficiently complied with 
 
24 
 
 TUE COMMON LAW PROCEDURE ACT. 
 
 [8. ID. 
 
 i* I''! 
 
 ::f' 
 
 m 
 
 Tiino of BPr- jgy of the wcck aiid of the uioiith of the service thereof, (o) 
 
 vii'iMif Writs •' . ' V / 
 
 t" t)c ill- otherwise the Plaintiff shall not be at liberty in case of non- 
 •iajrt nticr appearance to proceed under this Act : (^p) and every affidavit 
 of service of such Writ shall mention the day on which such 
 indorsement was made, (2) and in the taxation of costs no 
 fees shall be allowed for the uiilcan;e or service of the Writs 
 unless served and sworn in the affidavit of service to have 
 been served by the Sheriff, his Deputy or Bailiff being a litc- 
 
 wlifii all but tho Immlwritinsj is cither printed or in the handwriting of a stranqjer. 
 Tlie party putting his mark to it, thereby bccoinos responsible for the whole : 
 Bidicr V. Coffhlan, 7 C. 13. 131, per Wilde, C. J. This secti(ju docs not apply to 
 actions of «!Jcctinent: Leeso n v. lligyiiu, 4 Prac . R. 34. 
 
 (o) Tho object of the rule is " to pin tho party to precise date of servica:" 
 Tinker V. Coijhian, 7 C.B. 131, per Maule, J. Held necessary on writ of ejectment : 
 Vdiidi'lcnr V. Smith, 3 Ir. C L. R. 80. A mere jiroccss-server is not (ndinarily 
 liable in an action for neglitfence in not makinjj the endorsement : CnrhwUx. 
 Brodil, 1 ir. & C. S22. The form may be thus: "This writ was served by mo, 
 X. Y., on C. D., on tho day of 18 — , X. Y." 
 
 (p) Tills indorsement must be made when the court directs a special mode of 
 service, as well as where the service is personal : Jiof/ersv. ISiirke, 9 Ir. C.L.ll. App. 
 xxxiv. The penalty for neglect under the old rule, was that the plaintitf should 
 not be at liberty to enter an ajipcarance for the defendant. This was almost in 
 effect to prevent plaintiff from going on with his suit, if defendant did riot volun- 
 turily appear, and tho consequences of such neglect seem to bo still the same. 
 The indorsement shall bo made, " otherwise the plaintiff shall not be at libertj' in 
 case of non-appearance, to proceed under this net ;" see Cnrlcwh v. Brood, 1 11. 
 & C. 31i2. Appearances per statute are virtually abolished : section 54. Where 
 defendant snatched the original writ out of the l.ands of the person serving him, 
 ...id kejit it, and tho party who served tho writ was in consequence unable to 
 make the indorsement on " such writ," the court granted a rule to show cause 
 why the defendant should not return tlie writ, or why in default of his so doing 
 plaintiff shouK! not be allowed to enter an appearance for him without indorse- 
 ment, »'. c. " to proceed with his suit:" Brook v. Edridr/e, 2 Dowl. P. C. 617. Ihit 
 when the origiuai writ was sent by plaintiff to defendant at his request, and he 
 kept it and did not appear, tho court refused to allow the plaintiff to enter on 
 ttiipearance for defendont without the indorsement: A/kivson v. JlotceU, 7 M. & W. 
 213. Plaintiff in this case brought himself into the difficulty by not following 
 the usual course. No doubt, ns a man of honor, defendant was bound to appear ; 
 but in point of law, if ho did not choose to do so, tho court was not bound to 
 assist plaintiff: lb. per Cur. Where tho "three days' for making tho indorse- 
 ment had been allowed to elapse owing to the falsehood of defendant in denying 
 herself to be the porty named in tho writ, tho indorsement was allowed to be 
 made : Bnrroivx et al v. Gabriel ct al, 4 D. «fc L. 107. Where a person who made 
 the service died within tho " three days," a judge at chambers allowed tho sub- 
 stitution of an aflidftvi*; by plaintift''s attorney of the facts, and \ui belief of the 
 i^crvice : MS. Lush. Prac. 3 ed. 374 ; but see Studdcrt v. Leary, 7 Ir. C. L. R. 543 ; 
 Johmhn v. Briscoe, 8 Ir. C. L. U. App. xxx. 
 
 ((/) The affidavit should show that the writ and indorsement were regular : 
 Waktlei/ V. Teexdale, 2 L. M. & P. 85. It should be made by the person who served 
 the writ. If an offfcer of tho court, he may be compelled to make the affidavit : 
 Bex v. Rndge, 1 W. IJl. 432. It ought not to be made before the plaintiff's attorney 
 or hia clerk or ogeut: In re Oray, 21 L. J. Q. B. 38('. 
 
 ;;'■ 
 
s. 20.] 
 
 CONCURRENT WRITS. 
 
 25 
 
 rate person, (or by a Coroner when the Sheriff is a party to 
 the suit), except as provided in the last preceding section of 
 this Act. (r) 19 Vic. c. 43, s. 32 ; 20 Vic. c. 57, s. 28. 
 
 20. (f) The Plaintiff in any action may, at any time cnncnnont 
 during six months from the issuing of the original Writ of iiJsuu'a'out. 
 Summons, (J.) sue out from theoflBco whence the same issued, 
 one or more concurrent Writ or W^rits of the same kind (w), 
 
 ()•) The efTect of this part of tlie section is to secure to the sheriff or coroner, 
 ns the cise mny be, t.lie ices for service of mesne process. Others may serve such 
 process, but no charge can bo made for it. Tliis jiart of tlie section, it is appre- 
 hcii(U'<l, rel.ites only to service of writs intended for service in tliis Province. 
 
 (,s) Taken from V.n^. Stat. 15 ik 16 Vic. cap. T5, s. 0. The practice was fir.st 
 nllowcd by the courts as boiiiij necessary and convenient. Beini^ such, it is con- 
 tiiuieil by the Cosijmoa Law I'rocedure Act : see first report of Commissioners, 
 S. 5. 
 
 (/I Suppose original writ to be renewed under the next following* section (21), 
 would tiiu time for issuinjj concurrent writs be thereby extended? Would there 
 be six montlis allowed from tiie date of the renewal, for the issue of a concurrent 
 will? What is the meaning of the expression, "original writ." Does it mean 
 original writ as contra-distinguished to "renewed"' writ? These questions have 
 bufii judicially considered. Jt has beeu held — 1. That a concurrent writ cau 
 only be issued within six months and no longer from the frsl commcnccmeut of the 
 tdion III/ /he " original writ." 1. Tliat if a writ issued b('fore the act came into 
 oiitration be renewed under the act, becomes by such fr»t renewal </?<««», the 
 "oiigiiial writ," on which a concurrent writ may bo issued within six months 
 from such renewal. 3. Where therefore a writ of summons, issued before tlie first 
 En;,di>li Common Law Procedure Act came into force, was renewed from time to 
 tinu; iiiuler that act, and within six months after the last renewal, but more than 
 si/ iiioiitlis from the first renewal, the plaintift' issued, for the first time, a concurrent 
 wiit for service abroad, that writ was set aside as irregular : Coles v. Shcrard, 
 11 Ex. 4S2. 
 
 (ii) These writs are issued when it is desirable to proceed against a defendant 
 witiidut delay, and it is doubtful in which county he resides, or if known it is 
 aiitici|iated that he is about to flee from one county to another. Under the old 
 ]iractiee a defendant was described in the writ as of " Middlesex ;" but, it being 
 aftciuards discovered that he resided in " Surrey," the writ was altered by plain- 
 tiffs attorney, by substituting the latter county for the former. The writ not 
 Laving been re-sealed, the court set the proceedings aside : Sigffcrs v. Sansom, 
 '1 Dowl. P. C. 745. To obviate the trouble and ditficulty which may arise in 
 casus of tliis nature, it is enacted that concurrent wri*3 may be issued. IJesides 
 it is now enacted, " tliat the writ of summons may be served in (/*()/ county:" 
 section 16. Concurrent writs are in fact original writs, describing defendant as 
 refilling in different counties. One writ only is necessar}' for the commencement 
 of an action: section 2. If several be issued, defendant is only liable to tlie coits 
 of tlio writ served upon him : Dunn v. Ilanlinff, 2 Dowl. P. C. 8('!>. Even of 
 concuvront writs of capias, defendant cannot complain, as he can be arre^ted only 
 once ; Jh. It was therefore held that concnrrent writs of capias might issue into 
 ilitl'cient counties : liodwell v. Chapnan, 1 C. ife M. 70 ; Angus v. Coppaydetal, 3 M. 
 <t W. 07 ; Angus V. Medwin et al, 7 L.J. N.S. Ex. 10. Concurrent writs of summons, 
 wheie there is only one defendant, may not, under the Common Law Procedure Act, 
 be as necessary as formerly. It is suflicieut iu the summons to state the residence 
 
26 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 21. 
 
 
 Within wliat 
 time Writs 
 must ln! 
 served, &c. 
 
 to bo tested of the same day as the original Writ, (*;) and to 
 be marked by the Clerk or Deputy Clerk of the Crown or 
 Clerk of the County Court issuing the same with the word 
 concurrent in the margin, with the memorandum required by 
 the sixth section of this Act ; (kj) but such concurrent Writ 
 or Writs shall only be in force for the period during which 
 the original Writ continues in force, (x) 19 Vic. c. 43, s. 27. 
 
 21. (j/) No original Writ of Summons shall be in force 
 for more than six months (s) from the day of the date thereof 
 inclusive ; (zz") but if any Defendant therein named has not 
 
 or " supposed residence" of the party dcfeudant : section 2. And the writ when 
 issued, may be served upon defendant in any county in which he may bo found : 
 section 16. The main object of this enactment is to meet the case of several 
 defendants residing in different counties. And a concurrent writ for service, 
 witliin the jurisdiction, may bo marked as concurrent witli one for service with- 
 out the jurisdiction, and vice versa : section 46. Concurrent writs will therefore 
 be a great convenience where there are several defendants resident in different 
 ])laces, and it is desired to proceed against all witliout delay. They cannot bo an 
 inconvenience to any one defendant, for ho would bo liable only to tlie costs of 
 the writ nerved upon him individually: Angus v. Coppardetal, 3 M. <& W. 57; 
 Crow V. Crow cl al, 1 D. A L. 709. 
 
 {v) Though tested on the same day as the original writ, it must bo remembered 
 that the concurrent writ need not be issued on that day. It may be issued at anj' 
 time "during six months from tiie issuing of the original writ." 
 
 (?») Memorandum stating from what office and in wliat county such writ was 
 issued. 
 
 (ar) Original may bo renewed and continued in force for a period longer than 
 six mouths : section 21. Tlie difference between a concurrent writ under tliis act, 
 and an alias writ under the old practice, appears to be this : a concurrent writ 
 must be issued while the original writ is in force ; an alias was only resorted to 
 when the exigency of the original writ had been spent. 
 
 {y) Taken from 15 «fe 16 Vic. cap. 76, s. 11. The commissioners were not in 
 favour of the writ of summons having an indefinite duration. They recommended 
 that " it should have a limit, but that it might be renewed, and if renewed, 
 should for all purposes be renewed in the same manner." The object is to pro- 
 vide for cases wliere plaintiffs may be really unable to serve the writ within tlie 
 f)eriod limited by the original writ. The legislature have in this provision fol- 
 owed tlieir suggestions. The effect of the section will be, first — to prevent the 
 necessity for alias and pluries writs ; and, secondly, in cases where the Statute of 
 Limitations is pleaded to prevent the trouble and expense of making up and 
 proving the roll on which the writs and continuances were formerly entered. 
 
 («) In computing the six months, tho long vacation from 1st July to 21st 
 Aiigust is included: Mullin v. Bonjor, 6 Ir. C. L. R. 475. 
 
 {xz) A defendant who has been served with a writ, after its exigency has 
 expired, should not treat it as a nullity, but apply to set the service aside : Hemp 
 V. Warren, 2 Dowl. N. S. 758. And where a writ under these circumstances was> 
 served at defendant's request, in order to save expense, the service was held good : 
 
21.] 
 
 RENEWAL OP WRITS. 
 
 27 
 
 been served therewith, (a) the original or any concurrent ^."ifwing 
 Writ may at any time before its expiration be renewed for six 
 months from the date of such renewal, (ft) and so from time 
 to time, (c) during the currency of the renewed Writ, by 
 being marked in the margin, with a memorandum to the effect 
 
 Coatei V. Sandy, 2 M. & G. 313. It wns held not to l)c a wnivcr by ilcfendnnt, 
 but an n^recment to accept service after the time for servico had expired : 7ft. 
 As to tiio course to be talvcn by parties, served by mistake, see Walker v. Medland, 
 
 1 D. (t L. 159 ; Richards v. Ilanhij, 10 Jur. 1057 ; Skvemon v. Thome, 13 M. & 
 W. 149. It is not necessary for a party so served to state in liis affidavit when 
 applying to set aside the copy and servico of the writ, that ho is the defendant in 
 the cause : Stevenson v. Thome, 13 M. <& W. loO,^- Pollock, C. B. 
 
 (a) Service on a wrong person is the same as no service at all : sec v. 
 
 Juhmon, 2 B. tfe C. 95. Any person served with a writ may apply to set it aside, 
 though lie may not be the party intended to be served : Pilbrow v. Pilhrow, 3 C.B. 
 730; Stevenson v. Thome, 13 M. & W. 149. It must appear, if the application bo 
 made by dcf mdant to set aside proceedings because writ not served in time, that 
 the writ di not come to his knowledge or possession : Johnson v. Smnllwood, 
 
 2 Dowl. 58t ; France et al v. Wright, 3 Dowl. 325 ; Emerson v. Brown, 8 Scott, N.Il. 
 'J19; Prou. Ins. Co. v. Shaw, 19 U. C. Q. B. 360. Such an application must bo 
 inado promptly : Tilly v. Hodgson, 2 D. tfe L. 365 ; Fox ct al v. Money, 1 B. A P. 250 ; 
 llez v. Hare et al, 1 Str. 155 ; Steele v. Mogan, 8 D. & U. 450 ; Ncii'ttham v. Ilanny, 
 5 Dowl. 263; Anon, 1 Chit. 129; Jlompay v. Kenning, 2 Chit. 236; Ilolliday \. 
 LcKcs, 3 Bing. N. C. 541. 
 
 (J)) It is now settled that the six months must be reckoned so ns to include tho 
 (lav of renewal : see Black v. Green, 15 C. B. 2(52 ; Anon, 2 1 L. J. (i.H. 23 ; Anon, 
 1 h. & C. 664 ; Fisher v. Cox, 16 L. T. N.S. 397. Under the English Act 2 Wm. 
 IV. cap. 39, it was held that in order to renew an original writ by the issue of an 
 nlias, when the original writ would expire on 7th May, the subsequent process 
 sliould be entered of record no later than 6th June : AlcKellar v. lieddie, 4 M. &. 
 Vt. 7.69. 
 
 {(') It is to be understood that a writ once renewed may bo again and again 
 renewed, if necessary. The renewal of the first to be ett'ected within six months 
 from the date of the original writ, including such date. The second and subsc- 
 (|uent renewals to be effected within six months from tho date of the first renewal. 
 Wlien a writ has been oace renewed, the time does not run from the date of tho 
 original wri^.^ 
 
 I'lUi. 
 
 1 
 
 Crompton, J. 
 on Saturday ^'.\ '\ 
 will not allow .; e> 
 attorney : Evaw v. 
 an officer of the con. 
 Owen, 9 W. R. 128. 
 
 •,ha time of the renewal : Anon, 24 L. J. Q. B. 23, per 
 ".;uC! expires on Sunday 5th, tho writ ought to be renewed 
 litifF lias not till tho following Monday: lb. The court 
 
 vc»" nunc pro tunc where there is neglect of the plaintitFa 
 ?.«, 2 B. <fe S. 45. Especially if no default on tlie part of 
 Naxer el al v. Wade et al, 1 B. «fe S. 728 ; see also Bailey v. 
 
 The method of renewal hero provided is intended as sub- 
 
 stitutionary for the issue of alias and pluries writs. The cases decided under the 
 latter practice were tho following : an indorsement on an alias or pluries writ 
 must contain the date of the first writ and return thereto : Wdliams v. Williams, 
 2 Dowl. N. S. 209. But an amendment in this particular was permitted : Jb. 
 and see Mavor v. Spalding, 1 D. <fe L. 878. Where an alias had not issued in due 
 time, the court refused to amend the date of the preceding writ, in order to admit 
 of its issue : Campbell v. Smart et al, 6 C. B. 196 ; s. c. 6 D. <fe L. 335. An alias was 
 amended by inserting the date of tho first writ : Cnlverwell v. Nugee, 4 D. <& L. 80. 
 
28 
 
 EfToct of 
 ri^ni'wal na 
 to Htattitc 
 of Liiiiita- 
 tiuiis. 
 
 j>Iemoraii- 
 (liiiii lit' 
 rcuuwiil to 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 
 following : ((/) " Renewed for six months from the 
 
 day of ," signed by the Clerk or Deputy Clerk of the 
 
 Crown or Clerk of the County Court who issued the Writ, 
 or his suecessor in oflSce, upon delivery to him by the Plaintiff 
 or his Attorney, of a rnecipe, in the form formerly required 
 to be delivered upon the obtaining of an Alias Writ j (e) and 
 the Writ so renewed, shall remain in force and be available 
 to prevent the operation of any Statute whereby the time for 
 the commencement of the action may be limited, an'' for all 
 other purposes, from the date of the issuing the original 
 Writ. (/) 19 Vic. c. 43, s. 28. 
 
 fia. (</) The production of the Writ of Summons with 
 the memorandum signed shewing such Writ to have been 
 renewed, (Ji) shall be suiBcicnt evidence of its having been ho 
 
 Mil 
 
 ^- 311 
 
 B'.* ■ ft 
 
 (rf) English Act. " By being marked wUh a seal," Ac. 
 
 (c) The praeipe for an alios writ only differed from the ordinary p-flT'/w by tlio 
 
 insertion of tlio word "alias." The form now will bo, " Hjiiewul writ of 
 
 for A. U. ogftiust C. I)., of in the county of ." 
 
 (/) The production of the writ, with a num. purporting to be Bigned as nbove 
 required, and showing such writ to have bt a renewed, is sufficient evidence of 
 renewal: section 22. The question of renewal arises on an issue joined on a 
 plea of the Statute of Limitations : see Iligga v. Mortimer, 5 D. «fe L. 75(5. Where 
 the writ issued within six months after tlie cause of action accrued, and was not 
 duly continued, pursuant to Eng. Stat. 2 Wni. IV. cap. 30, s. ]0, it was held that 
 the defendant was not bound to plead such non-contin.iance specially, but might 
 take advantage of it, luidcr the general plea that " tiio cause of action did not 
 accrue within six years next after the commencement of the suit: Pratt v. Ilaio- 
 kins, 15 M. »k W. S91>. For this purpose the last writ served was held to be the 
 commencement of the suit : lb. Where the original nlias and plurics writs of ca. re. 
 had been sued out, and the last writ served, it was held that the plaintiff, in 
 order to acquire the advantage of having the action 'considered as commenced by 
 the first writ, with reference to a plea of payment or the Statute of Limitations, 
 should show at the trial that the first writ was returned : McLean v. Knox, 4 U.C. 
 Q. B. 52. 
 
 (g) Taken from English Act 15 «fe 16 Vic. cap. "76, 8. 13. 
 
 (A) The mere production of the writ with the necessary memorandum, purport- 
 ing to be signed, Ac, is all that is required. No extrinsic jjroof as to tlio geim- 
 ineness of the ofHcer's signature seems to bo necessary. It will be assumed prima 
 facie to bo his. It has been held that the production of first process, with the 
 minute of the deputy clerk of the crown, "issued 5th August, 1843, W. D. M., 
 D. C. C," was prima facie proof of the fact and date of issue : Upper v. MvFar- 
 land et al, 5 U. C. Q. B. 101. The court observed that it has long been the prac- 
 tice so to treat the writ at Msi Prim, and as the practice is convenient and saves 
 expense to the parties, it ought to be upheld; Jb. 103, per Robinson, C. J. It is 
 only necessary to state in the marginal memorandum the office wijonce the writ 
 issued : section 6. The writ must bear date on the day wlien issued : section 24. 
 The date of issue will therefore appear from the tebte, and not necessarily from 
 the marginal uote, as formerly. 
 
 m-4 
 
88. 23, 24, 25, 20.] writs op capias. 
 
 29 
 
 renewed, and of the comtnencement of the action as of the '"', ynfflcient 
 
 i'vi(li'ii<;e 
 
 first date of such renewed Writ, (i) 19 Vic. c. 43, s. 30. tiaroof. 
 
 WIUTS OP CAPIAS. 
 
 33. ( / ) No writ of Capias shall bo in force for more writs of 
 
 ('I'llilUH to DO 
 
 than two months (Jc) from the day of the date thereof inclu- in ti>nu two 
 sivc J (0 nor shall any such writ be renewed, (m) but on the iumI not 
 CTpiration thereof a new order may be obtained in the man- 
 ner directed by the Consolidated Statute for Upper Canada 
 respecting '* Arrest and Imprisonment for debt." («) 22 Vic. 
 c. 90, 88.7,5. (1858.) 
 
 9 1. Every such Writ shall bear date on the day on which Date of. 
 the same issues, (o) 19 Vic. c. 43, s. 19. 
 
 95. Every such Writ shall bo indorsed with the name indorsation 
 and place of abode of the Attorney actually suing out the "'■ 
 same, and when he sues out the same as agent for another 
 Attorney, the name and place of abode of such other Attorney 
 
 shall also be indorsed thereon. (;>) 19 Vic. c. 43, s. 21. 
 
 96. When the Writ is sued out by the PlaintiflFin person, ifHuedou'v 
 he shall indorse thereon a memorandum expressing that the '" ^'^"""' 
 same has been sued out by him in person, and mentioning 
 
 (i) It may be ft question whether the writ so produced, can bo looked upon as 
 a record of tlie court. If a record, then parol evidence would not be admissible 
 to contradict it. It might bo argued tlint as tlie new method of renewing writs, 
 by signing a memorandum in the margin, is to liavc the eft'eot of an alias or 
 phirics writ ; so by analogy the production of a writ thus renewed, would be the 
 same in effect as the production of a continuance roll under the old practice. A 
 continuance roll from the proper custody, has been held to bo a record of the 
 court, and as such not to be contradicted by parol testimony: Prentice v. Hamil- 
 ton, Dr.^por's R. 410. The objection to the renewed writ being so considered if 
 loft in the possession of plaintiff, would perhaps bo that it did not come from 
 the "proper custody." 
 
 (j ) An original provision, first enacted in 22 Vic. cap. 96, ss. 5, 7. 
 
 (^•) Unlike a writ of summons, which remains in force for six months: sec. 21. 
 
 (/) See note zs to section 21. 
 
 («i) Under the Common Ijaw Procedure Act, 1856, a cnpins niiglit be renewed 
 in the same manner and with the same effect as a summons : 1 9 Vic. cap. '1.1, s. 28. 
 Tlie statute 22 Vic. cap. 90, a. 7, first made the alteration which is preserved in 
 this section. 
 
 ()i) Con. Stat. U. C. cap. 24. 
 
 (o) See notes to section 11. 
 
 {p) See section 12, and notes thereto. 
 
80 
 
 TUB COMMON LAW PROCEDURE ACT. [88.27,28,29. 
 
 |i'-'i.'l 
 
 ?;v ':!• 'C- 
 
 rti 
 
 ].■ 
 
 'v 
 
 Connnrront 
 Writs of 
 CiiiiiiM may 
 
 iMHIIU. 
 
 Cnplog, &c,, 
 to be servuil. 
 
 tho Citj, Town, incorporated or other Villn^o or Township 
 within which such plaintiff resides, (g) 10 Vic. o. 43, s. 21. 
 
 !37. Concurrent Writs of Capias may be issued from time 
 to time in like manner and form as the ori<;inal Writ in 
 the action, and shall cnl'^ bo in force for tho same period as 
 such original Writ, and no longer. (>•) 19 Vic. c. 43, s. 27. 
 
 ftH. (a) Every Writ of Capias, and so many copies there- 
 of as there are persons intended to bo arrested thereon ur 
 served therewith, together with every memorandum or notice 
 subscribed thereto and all indorsements thereon, (t) shall bo 
 delivered with the original Writ to the Sheriff or other officer 
 to whom such Writ is directed and who has tho execution 
 and return thereof, (?«) and tho Plaintiff or his Attorney may 
 order such Sheriff or officer, to arrest one or more of the 
 Defendants therein named, and to serve a copy thereof on one 
 or more of the others, which order shall bo duly obeyed by 
 such Sheriff or officer. (i>) 19 Vic. c. 43, s. 22. 
 
 29. (w) Such Sheriff or officer shall, within two months 
 
 (q) Seo section 13, mid notes thereto. 
 
 (>•) See section 20, and notes tlicreto. 
 
 (.<) Seo note i to section 3. 
 
 (/) Qii. — If mnttcr required to bo subscribed on nn original writ is indorsed, or 
 vice versa, would tlie writ be bad ? seo Chamberlain et al v. Wood ct al, 1 Prac. U. 
 196, per Burns, J. It would seem ns regards a copy, that if it have at the foot a 
 copy of the indorsement on tho original writ, there would bo no irregularity : lb. 
 So where the warning was indorsed on tho back, instead of its appe.iring on its 
 face, the copy was held to bo regular : Oilmour v. McMillen, 3 U. C. L. J. 71. 
 
 (it) Sheriff or other officer, Ac. Tho process may bo delivered to the coroner, 
 if there sliould bo any just exception to tho sheriff: Jervis, Cor. 3 cd. p. 53. 
 Upon the death of tho sheriff tho deputy is entitled to act until the appointment 
 of a successor : Con. Stnt. U. C. cap. 38, s. 14. Process when intended for the 
 sheriff should, properly speaking, bo delivered to him at his office. 
 
 (v) It is sufficient to serve a copy of tho writ immediately after the arrest : 
 McNidcr v. Martin, 1 Prac. II. 206. If a party when arrested, refuse to receive a 
 copy of tho writ offered to him, ho will not bo allowed afterwards to urgo ns a 
 ground for his discharge, that a copy of tho writ \s as not left for him : Ilether- 
 ington v. ]\7ielan el al, 1 Cham. R. 163 ; McNider v. Martin, ' Prac. R. 205. It 
 has been tho practice, simply to servo a copy of tho capias on defendants who 
 are not intended to bo held to bail. Tho practice is retained by this act. Where, 
 under the old practice, the action was •commenced against several defendants by 
 summons, and after commencement of action, plaintiff desired to arrest one of tho 
 defendants : held that he might do so by capias, without serving more than the 
 defendant to bo arrested : Chamberlain et al v. Wood et al, 1 Prac. R. 195. 
 
 (w) An original provision. 
 
 if'l ' 
 
 1 ■•■ >■"?•'¥ 
 
ss. 30, 81.] 
 
 WniT OP CAPIAS. 
 
 81 
 
 from the day of tho date of the Writ of Capias, but not 
 afterwards, execute the same according to tho exigency there* 
 of, (.r) and shall upon or immediately after the execution of 
 such process cause one copy thereof, and of the memoran- 
 dums and indorsements thereon, to bo delivered to every 
 person upon whom ho executes the samo whether by service 
 or arrest, (s;.) 
 
 SIO. Such service shall be of the same force and effect as 
 the service of the Writ of Summons hereinbefore mentioned; 
 nnd subsequent proceedings whether after an arrest and ser- 
 vice or service only, shall, in all the Courts, be according to 
 the practice in force in the Superior Courts of Common Law 
 in like cases, (a) 19 Vic. c. 49, s. 22 j 22 Vic. c. 96, s. 5. 
 
 31. (i) Any person arrested upon any writ of Cajnaa 
 issued out of oithor of tho Superior Courts of Common 
 Law (r). ujay ajply at any time after his arrest (<?) to the 
 Court in which the action has been commeuced, (c) or to a 
 
 Rliprlff t<» 
 
 PXl'c'lltU 
 
 V'ithiii two 
 
 llllllltllM 
 
 frotii Uati'. 
 
 SiTVici. 
 
 •i|iiivitli'nt 
 
 tu HCIVllM^ 
 
 of WiitH of 
 
 HUIIIIIIOIIM. 
 
 ni'fciKlant 
 may iipjily 
 
 to i\ .lUllgl! 
 
 to bu 
 
 ilisrluirgcil 
 from 
 custoily. 
 
 i 
 
 (/) Tliis follows from section 23, which ilcclarcs that no writ of cnpios shall 
 be in force for more than two months. 
 
 (z) Sco note v to section 23. 
 
 (a) See section 9 et aeq. nnd notes tliercto. 
 
 (h) This section is taken from Stat. 22 Vic. cap. 96, ss. 8 ami 10, the origin of 
 wliith is apparently Englisii Stat. I «fe 2 Vic. cap. llK. s. G. 
 
 (c) Applie= only to mesne process: Bank (./Montreal v. Canwbdl ct al, 2 U. C. 
 L.J. N.S. 18. 
 
 ((/) If tlie application bo made on tho groimd of irregularity, it is apprehended 
 it sliould bo made promptly : Stifjc.rs v. Concancn, 6 M. & \V. 30. But if founded 
 on a substantial objection to tho arrest, may bo made at any time during tho 
 pendency of the action: Waller v. Lumh, 9 Dowl. ISl. And a defendant is not 
 precluded from making tho application by having put in special bail: Bowers ct al 
 V. Flower, 8 Prac. R. 02. 
 
 (c) The court out of which tho process issues may interfere either by virtue of 
 its general jurisdiction or under the statute, to order tho discharge of the defeu- 
 (knt from custody, if it thinks tho materials before the judge were insufficient, or 
 tlint ho exorcised an improper discretion : Graham et al v. Simdrhielli, 16 M. <fe "W. 
 191 ; Brown v. Jtiddell, 1.3 U.C. C.P. 4.57. Tho party arrested may on such an ap- 
 plication use affidavits to explain or contradict those on which tho order for tho 
 capias was granted: Oibbona v. Spalding, 11 M. &. W. 173. And they may be 
 answered by the plaintiff in showing cause : lb. Tho court would not before the 
 act entertain any discussion as to the existence or non-existence of tho cause of 
 notion : Brackenbury v. Xeedham, 1 Dowl. P. C. 439. Since the act, tho law is 
 diii'erent in this respect: Pegler v. Ilislop, 1 Ex. 437. But the court will not on 
 tlint ground per se interfere, unless it is roado clear that the plaintiff has no cause 
 of action: DeLisle v. LeOrandctal, 6 U.C. L.J. 12 ; Mcltmes v. Macklin, 6 U.C. L.J. 
 
82 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 81. 
 
 .:li 
 
 f. ' 
 
 i, ai 
 
 
 mi 
 
 lii ;>:■.,!::: '3 1 
 
 Powpr of Judge of one of such Courts, (/) for an order or rule on the 
 PlttintifT, to show cause why the person arrested should not 
 bo discharged out of custody j (//) and such Court or Judge 
 may make absolute or discharge any such order or rule and 
 direct the costs of the application to be paid by cither party, 
 or make such other order therein as to such Court or Judgo 
 may seem flt j (h) but any such order made by a Judge may 
 
 14. If till) ground of tho i.ppliculion bo tlmt tlio tlofondant Imd no inlontion of 
 quitting Cdimdii, lio sliould HWi'iir poHitivcly lo thai ofTect: RiMnnonv. (inrduti; 
 7 Dowl. P. C. 716. Wliore tiolendaiit lind no intention of quitting nt tiio tiino of 
 tlio nrntHt, bul liiid sonio intention of doing so in ul)OUt two niontim ntlerwurd!), 
 the arrest, wns iield to bo prcnmturo : I\<jl(f v. Ilislop, 1 Ex. 4!}? ; seo nlso llovm 
 el al V. Flown; 3 I'rac. U. 02. Wliero tlio objection is rcHted on tho ground thtit 
 tho order wns granted on insufficient aflidavits, tho defendant should l)ring them 
 before tho court : Nifilham v. JU'intoir, 1 Kowl. N.H. 700; Jfcn/hv. ^'c»bitt,'2,])u\\\. 
 N. H. I(l41. Tho motion is an original one and not to bo considered as a rcvit^ion 
 of tho discrcLion of the judge who granted tiie order : f.amond v. A'i(/'i; "> <J. it 1). 
 255. A defendant who claimed to be privileged from arrest was bold precluded 
 from sotting up a ground of privilege not urged at olmmbers : Flir/hl v. Cook; 
 1 D. tfe L. 714, Wliero it appears that tho debt for which defendant was arrcrtted 
 was contracted through fraud, and that defendant had no nioro ties in Canada than 
 anywhere else, his application was refused : Terri/ v. Comatocl; 6 U. C. L. J. 235. 
 But where defendant was illegally detained in close c stody, without warrant, at 
 the instance of plniiitilF, on a charge involving tho subject matter which wns 
 afterwards stated ir tho atVulavil for a cniiias, as creating tho demand for which 
 the defendant was ordered to be held to bail, (ho defendant was discharged on 
 entering a common appearance. — J'aliner v. JioJ^crs, 6 U. C. L. J. 188. 
 
 (f) Tlio party arrested under tho order of n judge moy apply to another judge 
 for his discharge, and may appeal to tho court from tho decision of the latter: 
 Graham v. SamlriHclU, ](> JI. ifc W. 191 ; Jfonrc v. Mayan, 16 L. J. Ex. 57. Uiit 
 it has not yet boon decided by tho court whether, if the judge secondly applied to, 
 differ from tho first on the same state of facts, he has or has not power to dis 
 charge the defendant, as on nn ajipeal to the court : 7Vjtv v. Coinstock, U.U. L.J. 
 235, per Draper, C. J.; Palmer v. Jioih/era, 6 U. C. L. J. 188, per liicliards, C. J. ; 
 DemUl V. Eaulerbrook, 10 U. C. L. J. 240, per Adam Wilson, J. In nn action by 
 husband and wife for verbal slander, not actionable without proof of special 
 damage, and the affidavit stated only that persons not named hod in conse<|ue!ice 
 withdrawn their custom, the learned judge to whom defendant applied for his dis- 
 charge expressed surprise and regret that an arrest should have been ordered on 
 such statements, but set it aside on tho ground of irrejjularity only, expressing no 
 opinion as to his right to review the decision of tlio judge who ordered the arrest, 
 Albnan et ux v. Kcnsel, S Prac. 11. 110, per llagarty, J, : seo note w to section IS 
 
 (or) This section contemplates simply " a discharge from custody," leaving the 
 capias in force as a protection for nnytliing done under it. Tho right to set aside 
 the capias, or more propeidy the order on which it issued, on grounds of irregu- 
 larity, exists independently of this section and is governed by principles entirely 
 different to those applicable to thia section : seo Hopkins v. JSalemliecr, 5 M. i 
 W. 493, 
 
 (/t) It is not usual to make absolute the rule or order with costs, unless some 
 deceit has been practised upon the judge who granted the order for arrest : sec 
 Bowo-s ct al V. Flower, 3 Prac, R. 02 ; JJrown v. Eiddcll, 13 U. C. C. P. 467. 
 
 m, 
 
 Mf" 'JS 
 
81. 
 
 88. 32, 33.] BAIL ON WniTS FROM COUNTY COURTS. 
 
 Iicr ju(lj;c 
 
 latter : 
 
 '. IJiit 
 
 lied to, 
 
 to (lis- 
 
 J.C.L..T. 
 
 9, C.J.; 
 
 ction by 
 special 
 
 seiiueiicc 
 hi.s (lis- 
 
 dercd on 
 
 ssinpf I'o 
 nri'ust. 
 ctiou -13 
 
 iving the 
 act aside 
 if irre<:n- 
 cntirclv 
 •, 5 M. i 
 
 ess some 
 •est : sec 
 
 be (liacharpcd or varied hy tlio Court on application by either Ji""{^]!"'^ 
 party dissatisfied with such order; (i) and the Judgo, or act- "rvsr^r 
 infj Judgo of a County Court making any order to hold to urJer. 
 bull, whether in ono of tho Superior Courts or in his own 
 Court shall, in respect to such order, tho Writ of Cnpias 
 thorcon issued, and the arrest mado thereupon, possess all tho 
 powers given to a Judgo of either of tho said Superior Courts 
 under this Section, and may in like manner, on application to 
 hiiu, order tho Defendant to bo discharged out of custody, 
 direct the costs of tho application to bo paid by either party, 
 or mnkc such order therein as to such County Court Judge 
 Bccms flt. (J) 22 Vic. o. 90, ss. 8, 10. 
 
 iiAir.. 
 
 33. (/»-■) If any Defendant be taken or charged in custody nooinration 
 
 t 1 • • 1 « . rt • wlii'ii to bo 
 
 upon any such process, and imprisoned for want of sureties nm.ir, wii«n 
 far his appearance thereto, tho Plaintiff may, (/) before the ii'ni'iixuncd 
 end of the next term after the arrest of tho Defendant, de- b"i'ir''°' " 
 clare (»i) against him and proceed thereon, in tho manner 
 and according to the directions contained in tho one hun- 
 dredth and one hundred and thirty-second rules of the Supe- 
 rior Courts of Common Law, mado in Trinity Term, in tho 
 twentieth year of Her Majesty's reign, (u) 19 Vic. c. 43, 
 s. 22. 
 
 33. (o) The Sheriff to whom a Capias, issued out of a on writs 
 County Court is directed, shall take bail from any Defendant ["'."h^^'.'iuu'' 
 arrested thereon, and if required shall assign the bail bond in f.lk.y'J'^.n'' 
 like manner as the law directs in cases where like process is a^a'suT''" 
 
 (i) See note / to this section, 
 
 (j) The county judjje or acting county judM has, for tho purposes of this 
 section in regard to any order made by himself for a capias, nil the powers of a 
 judge of one of tho superior courts, but has no power to sit in review on orders 
 made by a judgo of tho superior court or a county court judge other than himself. 
 
 (k) Taken from section 22 of 19 Vic. cap. 43. 
 
 (l) "May," construed " shall :" see Tyion v. McLean, 1 Prac. R. 339, 
 
 (w) Merely filing tho declaration is not " declaring," within the meaning of 
 this section. It must bo served : Tyxon v. McLean, 1 Prac. R. 344, per Richards, J. ; 
 see also 11. G. pr. 100. 
 
 (>() Rules 100 and 132 will be found in a subsequent part of this work. 
 (o) Taken from the original County Court Act, 8 Vic. cap. 13, ss. 21, 26. 
 
 3 
 
■iB 
 
 ■■ 
 
 81 
 
 anil nssigii 
 bail bond, 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 33, 
 
 issued from one of the Superior Courts of Common Law, and 
 such assignment shall have the same effect as if the Writ 
 had issued from one of the said Superior Courts, (p) 8 Vic. 
 c. 13, ss. 2i, 2G. 
 
 {p) It may not bo out of place to make some remarks here as to bail, and the 
 practice of putting in bail in the superior courts of law. 
 
 Tiie writ of capias commands th'i sheriff to take defendant ond him safely keep 
 until he shall have given him (the sheriff) bail, or until he shall by other lawful 
 means be discharged from his custody : C. L. P. A. sch. A. No. 2. The capias 
 upon which arrests are made, originally issued for injuries, vi ct annis, and in 
 such cases only were arrests. at the common la', allowable: 3 Bl. Cora. 281. 
 Various early statutes permitted arrests to be made in other cases, but the power 
 to arrest appears to iiave beeu much abused. And although it seems the sheriff 
 had power at common law to admit to bail: 2 Saund. 00, b (8); Tidd's Pr. 9 
 ed. 221, yet he was render no ohUtjalion to do so. Prisoners were therefore com 
 pelled to resort to the tedious and expensive proceeding " de koinine rephgiando" 
 to recover their libert}', by which writ, if obtained, they were literally replevied 
 by their friends. To remedy this state of the law, Stat. 23 Uen. VI. cap. 9, was 
 passed. 
 
 This statute which extends only to persons arres'ted on mesne process : Rogen 
 V. liicvcs, 1 T. R. 421, per Buller, J., directs sheriffs to let out of prison all 
 manner of persons by them arrested, or beii.g in the'r custody, in any action per 
 sonal, upon rcaaonable sureties of sufficient persons, to keep their days in such place 
 as the writ doth require. 
 
 This however, was but a partial correction of the evil for the amount of the 
 reasonable surety to be taken by the sheriff, was not defined, nor could it well be 
 ascertained, as the process communicated no further information than the form 
 of action ; and evei that might be and was almost always fictitious. This occa- 
 sioned the passing of the 13 Car. 11. stat. 2, cap. 2, which recjuired the true cause 
 of action to be expressed in the writ, otherwise no greater security should be 
 taken than £10. Also see 12 Geo. I. cap. 29, s. 2. 
 
 Under the joint operation of those statutes, the sheriff is now obliged to admit 
 to bail persons arrested on m-^sne process ; provided good and sufficient sureties 
 are tendered to him, but not otherwise. The bail when taken is known as 
 sheriff's bail, or bail below, and is 'in undertaking by the sureties " to keep their 
 day when the writ doth require.'' The writ at present in use, requires defendant to 
 put in special bail, that is, bail to action, or bail above, as it is technically called, 
 within ten days after the exei ution of it upon him. It is in the power of dcfun 
 dant at any time within these lei; days, to avail himself of the Stat. 23 Hen. VI, 
 cap. 9, by tendering bail to the sheriff. The bond to be taken by the sheritf, 
 recites the writ and arrest, and is conditioned to bo void " if defendart do put in 
 special bail to the said action, as required by the said writ." 
 
 By special bail, or bail above, is meant t!ie procuring of two or more persons to 
 acknowledge a recognizance of bai in the swn sworn to, and mentioned on tlie 
 face of t^ c bail-piece. It may be remarked that the English practice differed in 
 the several courts. In the Queen's Bench, the bail acknowletlged a sum certain, 
 being double the sum s'vorn to in the aflidavit; while in the Common Pleas no 
 specific sum was stated. The practice of the Common Pleas in this respect, seems 
 to have been adopted in Upper Canada. But in any event, the liability of the 
 bail is the same in all courts ; that is to say, the amount sworn to and coats : 
 Petersdorff on Bail, 350, 3.51 ; R. G. pr. No. 89. The condition of the recognizance 
 must follow our statute, which enacts that " if the defendant bo condemned in the 
 action at the suit of the plaintiff, he will satisfy the costs and condemnation money, 
 or render himself, herself or themselves, to the custody of the sheriff of the 
 
 tj'p 
 
s. 34.] 
 
 SPECIAL BAIL. 
 
 35 
 
 31. Special bail may be put in and perfected according to 
 the established practice; (q) and after special bail has been so 
 put in, the Plaintiff may, by filing a declaration or otherwise, 
 proceed to judgment, in like manner as ii the action had been 
 commenced by Writ of Summons and the Defendant had 
 appeared thereto. 19 Vic. c. 43, s. 24 ; 8 Vic c. 13, s. 23 ; 
 22 Vic. c. 96, s. 3. 
 
 Sppcipl bail 
 iiiuy bo 
 {'iitcri'il nc- 
 roiding to 
 the form of 
 luiictice, 
 alt IT which 
 ])I,uiititl'niay 
 pioci'cil ns 
 upon a Writ 
 of Suinmoiia 
 
 county in which the action against such defendant has been br-^nght, or thot the 
 cogTiizor will do so for such defendant or defendants :" section 35. 
 
 It would also appear that the sheriff is empowered, at any time to take from 
 defendant, confined iu scaol, either upon tncsne or final process, a bond to the 
 limils ; upon the giving ot which defendant would be entitled to be released from 
 custody, subject to be produced by his bail on certain contingencies described in 
 the statute : Con. Stat. U. C. cap. 24, ss. 25, 28, 29. 
 
 Notwithstanding these several statutes, authorizing the sheriff at his option to 
 take uilher bail below, or bail to the limits, it seems that the sheriff' will be equally 
 liable, as before the statutes, to be called upon by the plaintiff, to bring in the 
 body of defendant, or in default thereof, to bo attached. 
 
 The conclusion therefore appears to be this, that the sheriff, though he may 
 cither, under 23 Hen. VI. cap. H, or Con. Stat. U.C. cap. 24, ss. 23, 28, 29, take bail, 
 vet such bail in either case is at hia peril, and only tor his security : see Wolfe v. 
 'Collingwood, Wils. 262 ; Se"on Pr. I. 186. Plaintiff after breach of the condition 
 nii'y, if he see fit so to do, instead of attaching the sheriff, take an assignment of 
 citliLT bond, and in his own name sue the sureties therein mentioned: section 33 
 of Con. Stat. U. C. cap. 24. 
 
 If dcfi'udant cannot find bail to the sheriff, or to the limits, or to the action, he 
 must remain in custody. Though in England defendants are permitted, under 
 Stat. 43 (leo. III. cap. 46, instead of giving bail, to deposit the sum endorsed 
 upon the writ, and £10 more, this practice does not prevail in Upper Canada. 
 Bail to the sheriff, and to the limits, and to the action, must as a general rule 
 consist of two persons at least : see 11. G. pr. 75. If defendant will not or cannot 
 put in special bail as directed by the writ, the plaintitT, nevertheless, inaj' j)roceed 
 with his action ; llcgina v. Sheriff of Hastings, 1 Chum. R. 230. 
 
 [ij) Bail is "nut in" by acknowledging before the court or a judge, or a com- 
 missioner for taking bail, nn instrument called a bail-piece. The bail-piece usuolly 
 states that the defendant having been arrested, is delivered to bail on a cepi 
 corjiun, to (naming his bail) and the amount for which the arrest was tnade. When 
 taken before the court, ,or a judge in chambers or elsewhern, or before a conunis- 
 sioiii'r and filed, the bail-piece becomes a binding recognznnco. T'.ie condition, 
 when set out, must follow the words of section 35, olready menti'jned. When 
 acknowledged out of court, it is signed by the judge u otlicer who takes the 
 acknowledgment, and may be afterwards enrolled acccu'ding to tlie practice of 
 the coiirt : Petersdorffon, Bail, 360. The officer who takes the acknowledgment is 
 nn orticor of the court, and when filed, the bail-piece is as if taken in court. It 
 must state in the margin the county from which the process issued; Ward v. 
 Skinner, 3 O. S. 163. Where there were two plaintiff's with the same surname, 
 ■ Michael and Robert Meiglmn," the non-repetition of the surname after the chris- 
 tian name of each, was held to be only an irregularity : Meighmi et al v. Brown, 
 Draper's Rep. 175. A bail-piece may be amended in the names of either the 
 plaintiff' or defendant, with the consent of the bail: Daniell v. Jmins, II. T. 4 Vic. 
 MS., 11. & H. Dig. "Bail" Ixi. 3. The affidavit of justification cannot be 
 swum before the defendant's attorney: Jioyle v. Wilcox, 2 O. S. 113. Bail will Iw 
 
36 
 
 THE COMMON LAW PROCEDURE ACT. [SS. 35, 36. 
 
 !■.;;'■; 
 
 Condition g;}, xhc condition of the recoKiiizanfe of special bail shall 
 
 of recogniz- '^ , ' ^ 
 
 ance of bail, be, that, if the Defendant be condemned in the action at the 
 suit of the Plaintiff, he will satisfy the costs and condemna- 
 tion money, or render himself to the custody of the Sheriff of 
 the County in which the action against such Defendant has 
 been broujjht, or that the cognizors will do so for him. (r) 
 8 Vio. c. 13, s. 26 ; 2 Geo. IV..C. 1, s. 11. 
 
 „ ... 36. Upon due notice given to the Plaintiff or his Attorney, 
 
 mayjuitify. and upon production of the bail-piece, and whether the 
 defendant is detained in custody or not, bail may justify 
 (either in term time or in vacation) before any Judge of the 
 Court in which the action is ponding, (.s) and such justifica- 
 tion and the opposing thereof may be by affidavit or afBrma- 
 tiun without the attendance of the bail in open Court or 
 And order boforc such Judge, unless specially required by such Court or 
 ancetoLsue Ju'^^'?c'» (0 8"<1 such Court or Judge may thereupon order a 
 
 allowed to juf^tifv by nffidnvit, made at the time of the ncknowledgment, though 
 an exception to them be afterwards entered, whore notliing is siiown to rei)el 
 such nfiidf-vit, or to impeach tlieir solvency : Diic/ffan v. Derrick, 5 O. S. 75. 
 Bail, after due notice of exception by plaintiff, or of justification by defendant, 
 may justify in court, or before a judge, and the affidavit just mentioned will be 
 sufiicient, if no new nnitter bo shown : Jb. Bail excepted to in vacation niu?t 
 justify in vacation, and have not till the following term for that purpose : Mc- 
 Kenzie tt al v. Mavnab, E. T. 2 Vic. MS. II. & H. Dig. "Bail" I. 3. 
 
 Bail may be, during term, j)ut in before the court whence process issued : 
 1 Sellons, Br. ISS. hi vacation, before any judge of such court: section 30. Or 
 the judge in chambers for the time being, no matter to which court he may 
 belong. The common mode, both in superior and county courts, is before a 
 commissioner a])pointed by either of the superior courts: Con. Stat. U.C. cap. 39, 
 s. 7. Tiiese connnissions were issued for all and every the several counties of 
 this province. It has been held that a commissioner appointed for the Gore Dis- 
 trict before the division of that district into counties, had no power afterwards 
 to act as a commissioner for Brant: Carter v. Sullivan tt al, 4 U. C. C. P. 20S; 
 but see now 31 Vic. cap. 11. 
 
 (r) A bail-})iecc conditioned to render the defendant to a sheriff of a county in 
 which the venue is not laid, has been held not to be void: BiUivqs ct al v. Jjiirru 
 et al, K. T. 2 Vic. MS. R. <t IT. Dig. Bail, III. 8. But sec ss. 37, 39, of this act. 
 
 (,s') Bail may be also in certain cases and in practice generally is taken before 
 commissioners api)ointed for the purpose : Con. Stat. U. C. cap. 39, ss. 3, 4. 
 
 (/) The affidavit of justification cannot be sworn before the defendant's attor- 
 ney : Jun/k V. Wilcox, 2 O. S. 113. When bail which has been put in, in the 
 coiiiitry, is to be justified in court, the bail-piece, with the affidavit ol the dae 
 t.iking thereof, and the aflidavit of justification, shall be transmitted by the 
 deputy clerk of the Crown, for the county in which they have been filed, to the 
 principal office in Toronto, to be filed and produced in court, upon the motion for 
 allowance, on proper notice being given such deputy clerk to produce the same; 
 R. G. pr. 80. 
 
s. 37.] 
 
 SURUENDER OF PRINCIPAL. 
 
 87 
 
 rule to issue for the allowance of such bail and for the dis- 
 charge of the Defendant (if in ciistod)') by a Writ of Suprr- 
 mha>^. ('0 2 Geo. IV. c. 1, ss. 13, 41 ; 4 Wm. IV. c 5, s. 2. 
 
 37. Special bail, on production of a copy of tlie bail-piece nail may 
 cprtiiled by the Clerk of the Court having the custody there- tiair v"i'i- 
 
 , 1 • • • 1 1 ni •«• n 1 .-1 ciprll to the 
 
 of, may surrender their princi[)al to the bhenii or the County siuiiffuf 
 in which such principal is resident or lound, (?;) and such &o. 
 SIiciHT .shall receive such principal into his custody ((f) and 
 
 give 
 
 such bail a ccrtiDcato under his hand and seal of office 
 
 (i() Wlien ft rule or order for ixUowaiicc be obtainotl, it should be served on the 
 fittiirnoy of tlie opposite party, in which event the bail is considered perfected, and 
 the haii below discharg-ed, or the defendant, if still in close custody, entitled to 
 be liberated upon a writ of mipawdeju. 
 
 (v) In civil actions there arc now at least two ordinary kinds of bail, — to the 
 slieriif, and to the action. Bail to the sheriff cannot as of ri<^Iit ta'ce their prin- 
 cipal into custody or surrender him in discharge of themselves, but like main- 
 pernors at tlie common law can do nothing, e.>ccept perform the condition of their 
 boad. They are barely and unconditionally sureties for their principal. Like 
 sureties for the perforninnco of any other act, they become liable wlien the condi- 
 tion of their obligation is broken, and are entitled to no favour beyond what is 
 allowed by the Stat. 4 Anne, cap. 16, s. 20, and the equitable powers and prac- 
 tiee of the court: see Petersdorff on Bail, 214. B.ail to the action, generally 
 Ciilled special bail, are not only res])onsible for the safe keeping of their jirincipal, 
 but have the right to surrender hiai in discharge of themselves : see Evans v. 
 iS7i''"', Draper's Rep. 28, per Sherwood, J. An interim order for protection under 
 ' the Insolvent Debtor's Act does not prevent bail from surrendering their prin- 
 cijiid ; Ross et al v. Brookes ct al, 3 U. C. L. J. 110, per Robinson, C. J. Bail to 
 the limits will not be allowed to enter an exoiieretnr upon the ground that 
 tlie principal has obtained a final order for his discharge: Nordheimcr v. Grover, 
 3 U. 0. Ij. J. 74. The final order does not discharge the bail from liiUjility, if hail 
 he jireviously fixed : Itnss ei <il v. Brookes et al, 8 IT. C. L. J. 110. It is not stated 
 when or under what circumstances the surrender may be made. Tt was a question 
 miller the old law whether bail had the right to follow their principal beyond the 
 limits, retake and then surrender him. The point was raised in Eviiis v. Shuw, 
 Draper's Rep. 28 ; and one judge (Sherwood, J.) expressed an opinion tliat the 
 ]c2;islature, under the statute then in force, " intended to allow the bail for the 
 liiiiits the right of taking and surrendering their principal, if they found him 
 within or without the limits:" Ih. p. 25. When the plaintilt proceeds by aetio:i 
 o» tlie recognizance of bail, the bail are at liberty to render their i)rinci|Kil at 
 aiiv time within the space of eight days next after service of process on them: 
 ll'ii. pr. 88. 
 
 (w) It is not the duty of the sheriff or his deputy to receive from the sureties 
 their principal wherever tb.ey choose to tender him. Reason and convenience 
 alike require the tender to be at the gaol wherein the sheriff without risk and 
 witlioiit delay inaj' al once incarcerate the prisoner. But if the slieriif waive this 
 privilege and accept a surrender eisewhere than at the gaol, the surrender will bo 
 Coml: Sfrovffv. Rorzel, Chambers, Auff. 11, \%(i^, per Richards, C.I. A debtor on 
 bull went to the sheriff's ollice and told the clerk there that he wished to surrender 
 liiiiHelf the clerk told him to remain in the oflice till he found the sheriff, the 
 clerk went for the slieriif, leaving the debtor in the otRee, but before he returned 
 with the sheriff the debtor had absconded, hehl that this was a fraud nud KO 
 render: Kennedy et al v. Brodie, 4 U. C. Q. B. 189. 
 
38 
 
 THE COMMON LAW PEOCEDURE ACT. 
 
 [s. 38. 
 
 
 '. '^ 
 
 Such sur- 
 render uot 
 to offect the 
 venue. 
 
 of such surrender, for which certificate the Sheriff shall be 
 entitled to the sum of one dollar, (x) and any Judge of the 
 Court in which the action is pending, (y) upon proof of due 
 notice to the Plaintiff or his Attorney of such surrender, and 
 upon production of the Sheriff's certificate thereof, shall order 
 an Exoueretur to be entered on the bail piece, and thereupon 
 the bail shall be discharged, (s) 8 Vic. c. 13, s. 27 ; 4 Wm 
 IV. c. 5, 8. 1 J 2 Geo. IV. c. 1, s. 12. 
 
 38. In cases where such surrender is made to any other 
 Sheriff than the Sheriff of the County specified in the condi- 
 tion of the recognizance of bail, (a) the Plaintiff shall not be 
 ■•^ninpelled to change the venue or to conduct his suit in any 
 manner different from that which ho would have been required 
 to do, had the render been made to such last mentioned 
 Sheriff (6) 8 Vic. c. 13, s. 27; 4 Wm. IV. c. 5, s. 1. 
 
 Where the bail took the debtor to nn office some distance from the court 
 house, where the deputy sheriff was in tlie liabit of transacting business with 
 practitioners, and there tendered him in tlieir discharge, and tlie deputy referred 
 them to tlie sheriff's otRce as the proper place for the render, and they went 
 there, but found only a clerk who had no authority to act in such matters, and 
 then they went to the gaol and tendered )iim to the gaoler's wife, the gaoler 
 being absent, but she refused to receive him, held to be no render: Rend vl al v. . 
 S<w<ill, 16 IT. C. Q. B. 4.^3. If there be any doubt as to the validity of the render 
 of bail by their principal, a judge in Chambers will not order an i J oik ret in- , but 
 leave the bail to plead in bar to any action broujrht against them on the reeog- 
 nizani.es: Bt-r,kman v. O'GQrman, 5 U. C. L. J. 1(51. Tlie sheriff may retake a 
 debtor who escapes after render : Arnold v. Andrews, 8 U. C. C. P. 467 ; JScutr/ierd 
 V. AiidrewK, Jh. 473. 
 
 (x) The court refused to order an exoneretnr in the absence of a certificate 
 from the sheriff to whom the render was made: Lhdey v. C'/'twonin, Draper's 
 Rep. T);"). 
 
 (//) Qa. am/ judge in chambers, whether a judge of the court in which the 
 action is pending or not'? see Con. Stat. U. C. cap. 10, ss. 9, 10. Chief Justice 
 Draper held that as a judge of the court of Queen's Bench he had no power 
 under this section to order an exonerehir to be entered on the bail j)iece, in an 
 action pending in the Common Pleas: Jiohinn v. Strong, Chambers, Aug. 1, ISlio. 
 
 {z) Tlie application is not ex parte : lioliinn v. (S/coh//, Chambers, July, 18().'i,/)«r 
 RicJiards, C. J. The bail may plead the discharge in any action against them 
 on the recognizance: Mumihi v. Pnrtridqe, 14 East. 69'.t; Armitage v. Khjbii, 
 5 A. A E. 8f; Sherra/t v. Floyer, 2 Bing.'lS; Mi kh ell v. Nolle, 1 Cham. R. iiSl 
 Where action commenced, payment of costs of writ would appear to be a condi- 
 tion of the stay or discharge : see R. G. pr. 88, and notes. 
 
 {a) Bail may surrender to the sheriff of the county in which their principal is 
 " resident or found :" section 37, see also section 29. 
 
 (6) It is not intended that plaintiff shall be in any manner inconvenienced or 
 prejudiced in the conduct of his action by reason of tlie privilege given to bail in 
 the foregoing section. 
 
ss. 39, 40, 41.] 
 
 BAIL IN COUNTY COURT. 
 
 89 
 
 39. In case a person is surrendered by his bail to the 
 Sheriffn of any County other than that in which he resided or 
 carried on business at the time, such person shall be entitled 
 to be transferred to the gaol of his own County on prepaying 
 iho expense of his removal ; (r) and the SheriflF in whose 
 County he was arrested may, if he is satisfied of the facts, 
 transfer him accordingly ; but if the SheriflF declines to act 
 without an order of the Court or a Judge, such an order shall 
 be made on the application of the prisoner and notice to the 
 opposite party, (d) 22 Vic. c 33, s. 9, (1859.) 
 
 40. In case (in any action in a County Court) the Defen- 
 dant has been surrendered by his bail into the custody of the 
 SheriflF of a County other than that in which tl-^i action has 
 been instituted, the PlaintiflF may charge the Defendant in 
 execution, and take all other necessary proceedings in like 
 manner as if the suit had been instituted in one of the Supe- 
 rior Courts, (c) 4 "Wm. IV. c. 5, s. 3. 
 
 41. A recognizance of bail taken in a County Court may 
 be entered of Record in such Court, and an action of debt 
 ur Scire Facias shall lie thereupon in such Court as in 
 similar cases in the Superior Courts, (/) and in cases in the 
 {'ounty Courts the Judges thereof may grant the same reme- 
 dies to the Plaintiff against the Sheriff or Sheriff's Bail or 
 
 Person 
 uiii'sted out 
 of his 
 
 County may 
 \h\ trma- 
 flTICll to it, 
 paying tliu 
 costs. 
 
 In cases in 
 a County 
 Couit, liow 
 riiiintltlto 
 ju'ocoed 
 wlii'ii (Icfon- 
 (lant smron- 
 (leii'd i" ■ 
 Couiu^ iiif- 
 ferent from 
 tliat in 
 wliicli the 
 action wus 
 brouglit. 
 
 Uecoffiii- 
 zanci; of ti.iil 
 in County 
 C<iuits may 
 be reeoi'drj 
 and pro- 
 ceeded upon 
 in lilie 
 manner as 
 in till-' .Su|)e- 
 rior Courts. 
 
 ((•) Inasmuch ns the principal may be rendered to the sheriff of the county 
 where ho, the principal, may be found, and a sat the time of liis render he luay be in 
 a county different to that in which he resides, provision is hero made for his 
 transfer to the latter county, on the simple condition of his " prepayinjj tlie 
 expense of his removal." 
 
 {(I) Questions may arise as to the legality of the render or place of res Icnce, 
 and it would not be reasonable to expect the slieriff to wliom the alleged render 
 is made to decide sucli questions if really doubtful. His coiu'se tlieret'oro in such 
 a case is " to decline to act without an order of the court or u judge." No provi- 
 sion is made for tlie payment of the costs attending such an order, and wliuther 
 to be borne by the sheriff or the debtf>r remains to be decided. 
 
 (f) The plaintiff must proceed to trial and final judgment against a prisoner in 
 the term next after issue is found, or nt the sittings or assizes next after such 
 term, unless the court or a judge otherwise order, and must cause the defcndiiiit 
 to be charged in execution within the term next after such trial or jiulgineut: 
 R. G. pr. 99. 
 
 (/) An action will lie in a County Court on a recognizance of bail taken in the 
 County Court, no matter what the amount may be for which the bail are liable : 
 Con. Stat. U. 0. cap. 15, s. 17, sub-s. 4. This is one of the exceptions to the 
 restricted jurisdiction of the court as to amouut. 
 
40 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 42. 
 
 ' ' 1 
 
 I ■, 
 
 Pla'.ntiir 
 miy obtain 
 capiaa ill 
 cortiiln cases 
 after coiu- 
 iiii'ni'iii;,' tlie 
 .suit liy Writ 
 orSuiuiiioiis; 
 iifli(i:nit 
 requiroil. 
 
 Writ ti> 
 is Mil! from 
 tlu! name 
 Court as 
 tiie iirijjinal 
 Writ. 
 
 Poriii of 
 Writ. 
 
 To wliom 
 directed. 
 
 Copies. 
 
 the Bail to tho action, and afford relief' to the Defendant, 
 Sheriff or Bail in like manner and form as niio;ht bo done b)- 
 either of the Superior Courts, hud the action been instituted 
 in such Court, (fj) 8 Vic. c. 13, as. 27, 50; 12 Vic. c. GO, 
 s. 7. 
 
 4:2. (A) The Plaintiff, after the oommencenient of any 
 action by Writ of Summons but before Ju(l<i;ment in such 
 action, upon obtaining; a Judge's order for thnt purpose, in the 
 manner provided f jr in the fifth section of the Act respecting 
 arrest and imprisonment for del>t, (/') may sue out of the office 
 whence such Summons issued a Writ of C'<ipi<i>i, and one 
 or more concurrent Writs; (J) and such Writ of Capias 
 shall, in every such case, notwithstandiiii; the fourth section 
 of this Act, number three, bo issued by the Court out of 
 which the original Writ in the cause w;is issued, (/r) and 
 shall be in the form (A) No. 6, (/) and may bo directed to 
 the Sheriff of any County in Upper Canada, and so many 
 copies of such Writ, with every memorandum or notice sub- 
 
 (</) As to \v1iich see the foregoing sections : s. 32, et acq. 
 
 (A) The first part of this section is substantially a re-enactment of Prov. Stats. 
 16 Vic. cap. 17.5, s. 3, and 2 Geo. IV. cap. 1, s. 1-1. There is no such provision in 
 eitlier of the English C. L. P. Acts. The object of it in to allow plaintiff, if he see 
 cause for so doing, to arrest defendant on mesne process during the progress of 
 an action. 
 
 {«') The affidavit under tliis section for an order to arrest must be intitled in 
 the court and cause: see Broion v. Pdmer, 3 U, C. Q. B. 110; GLuiis v. Coldewjh, 
 E. T. 3 Vic. MS. R. & II. Dig. "Arrest," iii. 9. 
 
 {j) See section 27. 
 
 {k) Section 4, sub-s. 3, provides for the alternate issue ./f writs, one from cfirli 
 court. No delay can occur where tho suit is comnionced bj' capias, for it is 
 expressly provided that tiie afliilavit need not bo entitled of any court, so that in 
 such case the writ may be issued from either court : Con. Stat. U.C. cap. 24, s. 6. 
 But under this section the writ of capias must be issued from a particular court— 
 the one from which the original writ in the cause was sued out, and to prevent 
 delay and ditKculty, an exception is made to the alternate system, in respect to 
 the capias in suits commenced hy summons. 
 
 (/) The form nf cnpiii.-, here given resembles that where tho writ of capins is 
 ,.ient of the action. The dissimilarities are just such as mislit 
 . •- rire necessary, owing to the diHerence in the practice. 
 fortb n statement that the action has been alreaO}' com- 
 -le beriff, »tc. We eonnnand you that j-ou take C D., &c., 
 ■ . '", -''• lie shall have given you bail in the action, &c., which 
 ■■' »" .nst him, and which action is now pending, itc." Tlie 
 clauses reijuiring cieic.id.tiit to put in special bail within ten days, though trans- 
 posed in the two writs, aro verbatim the same in each. The indorsements of 
 necessity a little vary. 
 
 made the 
 
 r ... 
 
 ■ -i 
 
 hi', expk 
 
 1 
 
 
 The-- -. 
 
 .py 
 
 •21 
 
 menei.'t 
 
 t ' 
 
 .11 
 
 and hiiM • 
 
 ■i(< 
 
 y '■: 
 
 A. B. h'i8 
 
 cuinr !' 
 
 .V i 
 
8. 4r>.] 
 
 SUMMONS AOArNST ABSENTEES. 
 
 41 
 
 scribed thereto, and all endorsements thereon as there iiifiy 
 be persons intended to be arrested thereon, shall be delivered 
 with such writ to the Sheriff or other OfTicer who may hnvo 
 the execution or return thereof, and suuh Sheriff or OiTicer 
 shall immediately upon, or after the execution thereof, cause Onororyto 
 
 ' ,. 1)(; (Iclivorcd 
 
 one such copy to be delivered to every por.^on upon whom to lacii jier- 
 such process may be executed by Jam, and shall, within tliroe tiu- Wiii is 
 days at farthest after such execution, indurse upon such Writ 
 the true day of the execution thereof; (m) and the pnioeed- 
 ings in any such action may bo carried on to Jud}>;ment 
 without regard to the issuinji; of such Capias or to any pro- 
 ceedings in any way arising from or dependent thereon ; (») 
 and on entering Judgment, the DaintifT shall be entitled to 
 tax the costs of such Writ or Writs of Capias and the pro- 
 ceedings thereon, in like manner as if the suit had been 
 originally commenced by Capias, (o) together with the other ^^g^g 
 costs incurred and taxable in the cause, (p) 8 Vic. c. 13, 
 8. 27; 19 Vic. c. 43, s. 42; 22 Vic. c. 9G, s. 4. 
 
 ABSENTEES. 
 
 43. (7) In case any Defendent being a British subject, is 
 residing out of Upper Canada, (r) the Plaintiff may issue a 
 
 (»!) See section 28, et seq., and notes thereto. 
 
 (n) It is declared by tliis section that the cnpiaS may be issued at any time 
 after tlie commencement of an action by writ of summons, but before judj^ment in 
 such iiction. No matter at what stage of the cause it be issued, the progress of 
 the suit will not be tliereby affected. The suit is to proceed in the same manner 
 stcij by step as if no sucli capias had issued. In short the capias to be is.«ued 
 uiuler this section is not so much a step in tlie suit as something collateral to it. 
 Tlieciipiiis intended is in the nature of mesne process. Being such, the reasons 
 for enacting that it must be issued 6e/bre judgment are obvious. 
 
 (0) In so far as rola'.es to tlie taxation of costs, the costs of the "capias and the 
 proceedings thereon" shall be allowed " in like manner as if the suit had been 
 (l^i^■ill;^lly commenced by cajiias." This may raise a doubt as to [ilaintitrs right 
 to t;ix the costs of the summons. If the capias is to be taken for the purposes of 
 tiixiition as a substitution for the summons, then the costs of the suinnious should 
 not be allowed. But if the section as to cajiias is to be taken cumulatively, then 
 pkiiitilf would be entitled to the costs of both writs. 
 
 (/') "Togetiier with the other costs taxable and incurred in the cause," <tc. 
 This favors the idea that the costs of the summons should be included and taxed 
 as costs in the ciuise. 
 
 (7) Taken from Eng. Stat. 15 it 16 Vic. cap. T6, s. 18. Founded upon first 
 report of the Common Law Conunissioncrs, ss. 11, 12. 
 
 (»•) As to the territorial jurisdiction of the courts of common law in this pro- 
 viucc : 8t3u note / to section 2 of this act. 
 
42 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 44. 
 
 .su.mnonsto -Wilt of Summons in the form (A) No. 3, (s) wliich Writ 
 
 p.irty. bi^n;,' ^ ^ -^ _ . 
 
 shall bear the indorsement contained in the said form, pur- 
 
 p.iriy. 
 11 Ilritisli 
 sMliJi'ct, rn- 
 
 si.iiii;,' (Mit (if portinn; that such Writ is for service out of Upper Canaoa, 
 tUrjuiisiiic- . r-r 1 
 
 tidii <if iiic and the time for appearance by the Defendant shall be regu- 
 
 sai'l Omits. fi J n 
 
 Survii'« 
 tlii'rouf, &c. 
 
 lated by the distance from Upper Canada of the place where 
 the Defendant is residing, having due regard to the means of, 
 and necessary time for postal or other communication. (/) 
 19 Vic. c. 43, 8. 35. 
 
 4'i:. («) Upon the Court or Judge being satisfied («) that 
 there is a cause of action which arose in Upper Canada, or in 
 
 (.i) One point of difFercnco between thia and tlie ordinary writ is that this writ 
 docs not specify the time for appenrnnce ; but as a general rule the hiw already 
 oxi)luined witli respect to the contents of a summons, the issuing of a summons, 
 and the renewal of a summons •■ill apply to writs issued under this section. The 
 indorsement of the " debt" and costs, under section 14, when the summons ia 
 issued for the recovery of a "debt," differs from the indorsement made necessary 
 by this section in one particular. Under section 14, tiie time allowed for pay- 
 ment of the debt and costs is " eight days." Under this section, it ia " two days 
 less than the time limited for appearance : see Schedule A. No. 3. In effect, how- 
 ever, both provisions coincide, as the time limited for appearance in the ordinary 
 writ is ten days: Schedule A. No. 1. It is uncertain whetiier the indorsement 
 required by section 10 applies to this writ. It is apprehended it does not apply: 
 see 1 Chit. Archd. 12 ed. 201. 
 
 (I) From what has been already mentioned, it will bo observed that provision 
 is made by tiiis act for two forms of writs of sunmions. Tlie first (section 2) con- 
 templates the case of a i)orson, who either is or is supposed to be residing within 
 the JHrisdictio/i, and in sucii case tlie time for appearance is fixed in all cases at 
 ten days, and certain proceedings may be taken in case personal service cannot 
 be efli'cted : section 16. The second form of writ, that given by this section 
 provides for tiiose cases where the defendant, being a British subject, is resi- 
 dent onl of the jarindiclion, and in this case the time for entering an appear- 
 ance is to be regulated by the distance the defendant resides from Upper Canadn. 
 Two different cases are separately contemplated. Where therefore defendant, 
 being a British subject, resident v;ilho>it the jurisdiction, was proceeded against 
 under section 2 of ifirst English 0. L. P. Act (section 2 of ours), which provides 
 for the case of defendants within the jurisdiction, an order obtained under sec- 
 tion 17 of the same act (section 16 of ours) allowing plaintiff to proceed as if 
 person.al service had been eflected, was set aside: llc^keth-f. Fleming, 24 L.J. 
 Q. B. 265. 
 
 (?«) Taken from Eng. Stat. 15 «$!; 16 Vic. cap. 78, s. 18. Founded upon the first 
 report of the Common Law Commissioners, ss. 11, 12. 
 
 {v) " Bji affidavit," in English Act. It is not known whether the omission of 
 these words by our legislature was intended or accidental. Whether or not, the 
 usual mode of satisfying the court in cases like the present is " by affidavit." It 
 may be stated that the only mode of satisfying a judicial tribunal is by legal 
 evidence — either written or oral — and that the clause under consideration must 
 be read consistently with the common law principles: see also section 45, at the 
 end. An affidavit, if used, should contain averments of — 1. The cause of action; 
 2. The residence of defendant ; 3. Service or attempted service. An irregularity 
 
 liii 
 
 
44.] 
 
 SERVICE OP SUMMONS ON ABSENTEK8. 
 
 48 
 
 respect of the broach of a contract made therein, (ic) and that if s.'vic.A 
 the writ has been personally served upon the Defendant, or '"'t '"■ "i""i« 
 
 i •' c ' iilt(T duo 
 
 tliiit reasonable eflForts have been made to eflPect personal ser- iiiiigi nie. 
 vice thereof upon the Defendant, and that it came to his 
 knowledge, and either that the Defendant wilfully ne>j;lects to 
 appear to such Writ, or that he is living out of Upper Canada, oicim- in 
 in order to defeat or delay his creditors, such Court or Judge tiH' Mpiu't .Ir 
 may from time to time direct that the Plaintiff shall be at 'i'im,'iavit."" 
 
 in tin? nflidavit may be waived by attending before the master : Harrixon v. ll'/7- 
 Imm, 21 L. T. Rep. 143. 
 
 (»•) Much diflfieuUy has arisen as to tlio meaning of tlie words " cause of action," 
 !is litTL' used. Wiicre there is a contract witli ri^ference to some act to be done 
 williin the jurisdie.ion, it is immaterial where such contract was made, for the 
 ciuiso of action tliough not tiio contract is within the jurisdiction, witiiin the 
 mwinini; of tiiis section: Fife v. Ronvd, 30 L. T. Uep. 291 ; s. c. 6 W. R. 282. A 
 writ of summons having been served on tiio defendant in France, he appeared by 
 attorney, and the declaration having been delivered, lie obtained an order to 
 iiis])eet, and inspected the promissory notes on which the action was brought. 
 He tlieii applied to set aside the writ and subserpient proceedings, on the ground 
 tiiiit the action was brought for a breach of contract made berjond the jiirisiliction. 
 Held tliat he was estoj)pcd : Forbes d al v. Si/ilt/i, 10 Kx. 717 ; see also Stmiiforth v. 
 Ukhmnnd, 13 \V. R. 724 ; Green v. Braddyll, 4 W. R. 487. There is such a thing 
 ns nttornment to the jurisdiction. Where the secretary of a legation, otherwise 
 lirivile;;ed by virtue of his ofhce, api)eared and i)leaded to an action commenced 
 n2,iunst him : held that by voluntarily attorning to the jurisdiction he was estopped 
 tVnm n]i|ilying to the court to strike out his name or to stay proceedings on the 
 ;i;roiiiul <if his privilege : Tdjilor v. Bixt H al, 14 0. IJ. 487. A writ of suuuuons, 
 ill liie form given in the schedule, but with no indorsement on it and nothing to 
 show the defendant the cause of action, was issued in order to sue the defendant, 
 who was a Uritish subject resident abroad, an order to jiroceed was subsequently 
 nmde by a judge on an afHtlavit, which contained the st.:tement that the cause of 
 (leti'iu arose within the jurisdiction. It appeared by aflidavit (inferentially at 
 least) that the judge's order had not been served. A declaration in the action 
 was tiled, which declaration, according to l']nglish practice, defeiulant took out of 
 tlie office : held that any prior irregularity on the i)art of the i)laintitf was 
 tluM'eiiy waived: Baj/ne v. Sltic/i-, 6 W. R. 171. A merchant in Norway, not a 
 British subject, drew there a bill of exchange and endorsed it to the order of D. 
 He then sent it by post to London. I), endorsed it to the plaintiff: held that 
 [ilnintilf could not sue defendant under this section: Skhel v. Borvh, 2 11. &. C. 
 1)54 ; but see Chapman v. Colirell, 3 II. «fe C. 865 ; Glover v. Persiynij et al, 1 1 W. R, 
 140 ; Axlln v. Lotido}i <£• iV. IF. R. Co., 16 W. R. 694. A claim for a balance due as 
 the result of cross consignments and remittances between a merchant in England 
 and a British merchant carrying on business at the Cape of Good Hope, was held 
 to be such a cause of action as could be so sued : Ilorwood v. Wood, 17 C. B. N. S. 
 W. All Irish judgment for ft debt contracted in England has been held not to 
 be a cause of action within the meaning of the section : Thelwall v. Yelverton, 
 16 C. 1'. N.S. 813. Where a cargo had been loaded abroad under a foreign charter 
 party, a claim for demurrage at an English port was held in chambers to be within 
 till' section : Slade v. Noel,' A F. & F. 424. So where goods delivered for a foreign 
 buyer on board a ship in an English port : Nettlefordw Funck ex rel am., Eng. C. P. 
 "I'd ilurch, 1866. It is enough that the court or judge be satisfied that there is a 
 
44 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 44. 
 
 rialntitr 
 IIlUHt piovo 
 his ciisi.'. 
 
 liberty to proceed in the action (x) in such manner and sub- 
 ject to such conditions as to such Court or Judj!;c (liaving 
 regard to the time allnwcd to tlio Dorondant to appear being 
 reasonable and to the other circumsttinccs of the c;i.se) \uny 
 seem fit; (i/) but the PlaintilT, before ohaining ju<li^nient, shall 
 prove the amount of the debt or damngcH claimed by him in 
 such action, either before a Jury or an asses.smcMt in tlie 
 usual mode, or by referen/e in the \nanner hiTeinafii.r 
 provided, (z) accordinf^ to thu nature of the case, as suuli 
 Court or Judjic may direct. Qi) 11) Vic. c. 43, s. So. 
 
 c.inrio of notion which nroso in this province: Tliiflon v. \Vhilrhn13p, 1 11. & N. 
 82. JJnt if tiie contrary be siiown, tlie writ will be pet aside : li'niet v. Picol, 4 II, 
 & N. !i(i5. Unless plaintiff undurtakc to prove a cause of action within the 
 jurisdiction, and confine liiniself to that cause of action: JJldinond v. Sutton, L. U. 
 1 Ex. 130. 
 
 (x) As if personal service had been effected: section IC. Proceedings to be 
 taken by plaintiff should be under sections 5C, 57. 
 
 (//) Before being entitled to proceed under this section, it is noces.^ary for plain- 
 tiff' to satisfy the court or jud^e upon one or more of these heads — 1 . 'I'iiat there is a 
 cause of action which arose witliin this province. 2. That the writ was jjcrson- 
 ally served on defendant, or that reasonable efforts were made to effect personal 
 service, and that it came to his knowledge. 3. That defendant either neglects to 
 appear to the writ, or is living out of this province in order to defeat or delay 
 his creditors. " Wilful neglect to appear," or living out of this province to 
 defeat, &o. These can seldom be sworn to as positive facts. They must arise 
 as presumptions from the facts disclosed to the court. To prove simply that 
 defendant has not appeared, from which the presumiition arises that he has 
 neglected to appear, it will undoubtedly bo necessary to show that no appearance 
 has in fact been entered. A. B., who liad contracted a debt in England, went to 
 Melbourne, in Australia. lie was there sued by his creditor, who issued a writ 
 under the section in the English act, which corresponds witli the one under cuii- 
 sideration. He was required by the writ to appear within five months. Having' 
 been personally served, and no appearance iiaving been entered, a))plicati()a wm 
 made by plaintiff for liberty to proceed, without giving any notice of declariUion. 
 An order was thereupon made by a judge in Chambers, " that the plaintiff slionld 
 be at liberty to proceed in the action by filing a declaration against the defen- 
 dant, requiring him to plead thereto in eight days, and by sticking up a notioi! of 
 such declaration in the master's office, and tliat in default of the defendant plead- 
 ing witliin the said eight days, it be referred to one of the masters to exaniiiie 
 int' and see that the plaintitt"s case is proved by affidavit or otherwise, as the 
 master shall see fit, and that the plaintiff shall bo at liberty to sign final judgnieat 
 for the amount found due by the master:" Firmin v. I'ern/, 27 L. T. Hep. 72; 
 see also Bates v. Bites, 9 W. 11. 255. 
 
 («) In section 212 of this act. 
 
 (n) It is apprehended that judgment once obtained will carry with it the inci- 
 dents of any ordinary judgment. The fruit of the judgment is 01' course the 
 execution. It may be issued in the usual mode, and perhaps issued forthwith. 
 The costs of service in the foreign country will be allowed on taxation : White v, 
 £rett, 28 L. J. Ex. 32. 
 
 U-' 
 
5. 45.] 
 
 ABSENTEES NOT nRITISII 6UUJECTS. 
 
 45 
 
 /IS- (ft) In any action np;ainst a person residing out of 'f,*j'',J|"[*J' 
 Upper Canada and not being a British subject, (c) tho like » i|'''<i«i> 
 proccedingH n)ay bo taken as against a British subject resident 
 out of Upper Canada, (r/) except that tho Phiintiff shall, 
 instead of the Summons mentioned in tho forty-third section, 
 
 (/,) Taken from English Act IB tt 16 Yic. cnp. 76, s. 19. Fonndcil upon the first 
 rcjiDi't of tlie Common J.iiw Conmiissioners, sections 11, 12, 13, 14. 
 
 (r) Ik'lil not to apply to foreign corporations: Inr/ate v. Anslviun IJoyds Co 
 4 C. H. N.S. 704. 
 
 ((/) In n former note (section 43, note t) writs of summons were said to bo of 
 two cjiissis — tliose issued ni!;ninst defendants vilhin the jurisdiction ; and tliose 
 nirninst defendants without tlie jurisdiction. It is now necessary to subdivide the 
 la'ter class into — 1. Those against IJritiah subjects ; 2. Those against jiersons not 
 liiiiiy lii-ithh Huhjrrts, resident abroad. For this latter description of defendants 
 the present section provides. It will seldom happen that i)roceodings will bo 
 trtkeii against defendants resident abroad, unless such defendants have property 
 liiilile to execution in this province. Proceedings under any other circumstances 
 would be, in most cases, comparatively useless. Tiie common law courts may 
 by their process act upon property within their jurisdiction; but in no ease can 
 tlu'V atl'eetthe person of a defendant withiuit their jurisdiction : see Buchanan r. 
 lliiclcir, I) East. H)2. In tho case of a defendant resident abroad there can bo no 
 f{)//y/A/(? remedy against him, unless by suing him in the courts of tho country 
 where he resides. The rule is, that those who seek redress from a foreigner or 
 olliers resident abroad, must resort to tho forum of tho defendant, Tiie cnact- 
 nicnts hero animtated attempt to make such a defendant in a manner amenable to 
 (uir courts. It is sought to accomplish this end by acting upon the property of 
 (lelendant, and thereby notifying him of its danger, in order that he may, if so 
 (li^lKised, satisfy the claim against him. The Common Law Commissioners very 
 justly observed that wherever property was situate within the jurisdiction, tho 
 ])rol)abilities were that some means of communication with the owner would be 
 I'liiind to exist. Defendants being foreigners, without the jurisdiction, may bo 
 considered as of two descriptions — 1, Such as were at one time resident in (his 
 piDvinee, but have gone abroad ; 2, Such as are and always have been foreigners, 
 never having been in this province. ^Vith respect to these, tho act does not 
 seem to make any distinction. True it is that the notice given in the schedule is 
 lulih-essed to " C. I)., lale of the city of Hamilton in Upjier Canada," but it con- 
 tinues "or (now residing at Buffalo, in the State of New York):" No. 4 Schedule. 
 Tlio word "or" seems to place matters in the alternative, i. e., defendant may be 
 n'Khessed as "late of, itc, or now residing, &c." This must be the meaning, for 
 it never could have been the intention of the legislature that the remedies pres- 
 cribed by this section should be confined to the case of parties at one time resi- 
 iKiit in tins province. As regards these latter, a further remark may bo made. 
 If a defendant, having been a resident in this j.rovince, and having acquired 
 jiroiieity therein and contracted debts subsequently depart from the Province, 
 having the property behind him, it may be that he can be proceeded against as 
 an iiliseoiiding debtor. One distinction would ajjpear to be this: proceedings 
 njainst nn absconding debtor are commenced by a writ of attachment sued out 
 sliurihi after his departure: jjroceedings against a resident abroad may be had at 
 Any (iistance of time after his departure from the Province, provided the Statutes 
 of Limitations do not interfere. Besides a comparison of the sections here anno- 
 tated witli those relative to absconding debtors will show that there are other 
 ca^es in which a plaintiff's remedy must be exclusively under the sections here 
 annutated. 
 
46 
 
 Certain 
 Writs Miiiy 
 bi! iim(ii3 
 ooii(!urruut. 
 
 TflK COMMON LAW PROCEDURE ACT. 
 
 [8. 40, 
 
 issue a Writ of Summons accordinj; to the I'oiin (A.) No. 4, 
 and Hhull in manner ufurcsaid serve a notioo of .siieh lust men- 
 tioned Writ upon the Dofondunt, wliich notice sliall be in tlie 
 form also contained in the said form No. 4 ; (f) and stuli 
 service or reasonable efforts to effect the same, shall be of the 
 sumo force and effect as the service or reusonable efforts to 
 effect the service of a Writ of Summons in any action atfainsi 
 a British subject resident abroad, (/) and by leave of the 
 Court or a Juds^e, upon their or his being satisticd by affidavit 
 as aforesaid, the liko proceedings may be had and taken 
 thereupon. (</) 10 Vic. c. 43, s. 3G. 
 
 40. (Ji) A Writ for service within the Jurisdiction tuny 
 be issued and marked us a concurrent Writ with one for ser- 
 vice out of the Jurisdiction, and a Writ for service out of the 
 Jurisdiction may i»o issued and marked as a concurrent Writ 
 with one for service within the Jurisdiction. (/) 19 Vic. c 
 43, 8. 39. 
 
 (e) Tho only mntcrial iliffercnco between tlie forms here given and those iinilcr 
 section 44, is in tlie notice niul ltd service. A notice, tlu; form of wliicli is g-iveii 
 in tho schedule addressed to dufendiint, and informing him tiuit ii writ has been 
 issued, must be servetl on defendant in lieu of a copy of the writ. This is to 
 prevent ft dilliculty which occurred to the Common Law Conunissioners in the ser- 
 vice of the process of one court within the iurisdictli ii of another, on a foreigner 
 residi'nt williin the latter. Instead of serving the writ itself, it is thouglit that 
 tho dilliculty will be obviated by serving tho notice made necessary by this sec- 
 tion. In oilier respects, the proceedings made necessary by this section resemble 
 proceedings against British subjects resident libroad. 
 
 (/) As to such sec section 44, and notes thereto generolly. 
 
 (ff) The Common Law Commissioners, in their Kuggestions for the enactment 
 of the practice set fortii in this section, had before them the example of France, 
 Reference was made by them to Le Code Civil, Art. 14, which, translated, is «s 
 follows : " A foreigner non-resident in France can be cited before the Freeh 
 tribunals for tho enforcement of obligations contracted by him in France with a 
 Frenchman, lie can also be summoned before the French courts for obligations 
 contracted by him in a foreign country with a Frenchman:" see Code Napoleon, 
 "By a Borrister;" Story's Conflict of Laws, 6 cd. 743. AVhcre leave had been 
 given to proceed against n foreigner, ns if personal service had been effected, upon 
 an affidavit of a cause of action for work ond labour done in England, the plairititf, 
 in answer to a rule to rescind the order for leave, made affidavit tliat orders were 
 given in England by certain persons who were afterwards recognized by tlio 
 defendant as his agent, and although this was denied by defendant, it was luW 
 there was sufficient evidence to satisfy a judge of a cause of action within thi; 
 section : Glover v. Persigny et al, 1 1 \V. R. 146. 
 
 (h) Adopted from English Act 15 & 16 Vic. cap. 76, s. 22. 
 
 (?) This will assist plaintiff when in doubt as to whether defendant is resident 
 within or without the jurisdiction of the court, as he may issue concurrent writs 
 
 
8. 47.] 
 
 AFFIDAVITS SWORN ABnOAD. 
 
 47 
 
 liiaiU' 
 
 17 (./) A"y ufTitlavit for tho purpose of enabling the j!|,'"',lj'|,\j|,']„ 
 Couri or a Juilj?c to direct proccedinfi;8 to be taken aguinst a {|''j''', ',',[}.""" 
 Dufundiiiit residing out of Upper Canada, may be sworn bo- "nii- m. 
 
 ■^ " , , „ , , I'lUtv III of 
 
 fore the ' ' ief Justice or Judge of any ('ourt of bupcnor lu.' .'il.n...li(■■ 
 Juiisdicti ' tbe Country wlieroin the Ueiondant may reside wiiumtoi* 
 or be Korvod, or before tbe 3Iayor or (Jhief Magistrate of any 
 City, Town or place wberein tho Defendant may reside or bo 
 served, or before any Consul-Genoral, Consul, Vice-Consul 
 or Consular Aj^ont for tho time being appointed by Her 
 Miijt'sty (^0 at any foreign port or place at or near which tho 
 Dufundant may reside or be served; (/) and saving all just 
 
 of (lilTi!riMit fDnns at one niul tho sumo timn, so as without dohiy to ])roet'LHl 
 ii^aiiist (iL'tViuliuit ill uilhor ovent. Or i*^ uftur the issuo of mi oriy;iiiiil writ piiiin- 
 titlil'nuovor tiiat liu liiiS buoii iiiistui<oa an to tho ro.sidenco of tlufuiulaiit, it only 
 i\;imiii.s for him to issuu a eoiicurruiit v/rit of a dilfurtMit form ami ao to I'oetity 
 Ills error, wliilo coatinuinjj his proeuoilin^s. In tho caso of sovornl dofondants, 
 SDiiii: rc'.sidoiit within and sonio without tho jurisdiction of the court, tho practice 
 will la' no less convenient. Tiioujfii not so eiuicted, it must be intended that con- 
 luirciit writs issued under tiiis section slioidd bear tiio sumo dale as tlic oriifinal 
 writ, luul bo in force only duriuy tho period whoa such original writ shall bo iu 
 force : sec section 20, and notes. 
 
 ( /') Taken from Enj^. Stat. 15 & 16 Vic. cap. '7(5, s. 23. There are some varii • 
 tidiii bi'tween this and the Enijlisli section, ivhieh will be noticed presently. 
 
 (h) " Ajipoiiitcd by Her Mu/fsli/," &c. From these words it would appear that 
 (Itidiiii's or other onsular oHicers not so appointed have not tho powi'r to net 
 iiiukr this act. It may be that if tiio attidavit purport to bo sworn before a con- 
 sular ollieer, tho courts will presume an appointment by the Crown till the 
 cuiitrary aiipear. 
 
 (/) It scorns nccordinj; to tho current of authority in England that neither a 
 Pii'itisli consul nor a British niiruster is entitled, by virtue of his otRcc, to admi- 
 ni^ti-r atlidiivils : Williutns v. Welch et al, 3 I), it L. 357 ; Lc Veux. v. lie.rlcilcii, 
 '1 1). it L. 31 ; In re Baroness Dunsany, 1 C. B. 119; I'ickardo v. Machath, 4 B. it 
 C. NSii ; E.( parte Hutchinson, 4 Bing. 0i)6. Tho powers conferred by this act upon 
 PLrlniii public ofUcers named does not authorize them to administer all alKdavit.s 
 of ittlicr party to a cause. It is restricted to " any affidavit for the purpose of 
 (iialiliii;,' tho court or a juugo to direct proceedings to be taken against a defcn- 
 diiiil residing out of Up()er Canada," that is, to affidavits made by or on behalf of 
 a I'I'iinhj}', who is desirous of proceeding with his cause. Though not strictly 
 apiilicable to tho section undor consideration, a reference may be hero made to 
 En;;. Stat. 6 Geo. II. cap. 7, s. 1, as to affidavits to be made in England in proof 
 of debts sued for in this I'rovince. In connexion therewith read Gordon \. Fuller, 
 5 0. S. 174. It is now enacted that " Oaths, affidavits, affirmations or deelara- 
 tioiH administered, sworn, alfirmed or made, out of Canada, before any commis- 
 sioner authorized by the Lord Chancellor to a Iminister ouths in Chancery in 
 Kn;;land, or before any notary public, certified under his hand and official seal, 
 or befoi'e the mayor or chief magistrate of any city, borough or town corporate 
 ill (ireat Britain or Ireland, or in any colony of her Majesty, or in any foreign 
 country, and certified under the common seal of such city, borough or ' »wn cor- 
 lioiate, or before a judge of any court of supreme jurisdiction in any colony 
 

 48 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 47. 
 
 Amemlnicnt 
 if the plain- 
 tiff omits 
 
 exceptions, every affidavit so sworn (in) may be used and 
 shall be admitted in evidence, provided it purport to have 
 been sworn before such Chief Justice, Judge, Mayor or Chief 
 Magistrate, Consul-General, Consul, Vice-Consul or Consular 
 Agent, (n) 19 Vic. c. 43, s. 40. 
 
 MISCELLANEOUS PROVISIONS RESPECTING WRITS, &e. 
 
 48. (o) If the Plaintiff or his Attorney omits (p) to in- 
 sert in or to indorse on (q) any Writ or copy thereof, (r) any 
 
 belonging to the crown of Great Britain, or any dependcnoy thereof, or before 
 any consul, vice-consul, acting consul, pro-consnl or consului .i..;ent, of her Majesty 
 exercising his functions in any foreign place, for the purposes of and in or con- 
 cerning any cause, matter or thing depending, or in any wise concerning any uf 
 the proceedings to bo had in the said courts, shall be as good, valid and effectual, 
 and shall bo of like force and effect to all intents and purposes, as if such oath, 
 affidavit, affirmation or declaration had been administered, sworn, affirmed or 
 made in this province before a commissioner for taking affidavits tiierein, or otlier 
 competent authority of a like nature: sco Merchant's E.cvress Co. v. Mercian, 
 15 Grant, 274 ; s. c. 2 Chan. Cham. 319. 
 
 (m) " Signed by" are the words used in the English C. L. P. Act. The official 
 seal of offico does not seem to be made necessary either by this or the English act. 
 
 {n) The English C. L. P. Act continues " upon proof of the official character 
 and signature of the person appearing to have signed the same." The omission 
 of this proviso by our legislature is not without significance. It will throw npoa 
 the sentence " provided it (the affidavit) jmrport to have been sworn, <tc.," the 
 burthen of elucidating how and in what manner an affidavit so sworn shall be 
 receivable — whether purporting to bo signed by a person having authorit}', it 
 shall be iirima facie taken to have been so in "fact ; or whether, before being 
 received, it will be necessary to prove dehors the affidavit both the official 
 character and the signature of the jjarty who signed, Ac. 
 
 (o) Taken from English Act 16 & 16 Vic. c.p. 76, s. 20. Also a verbatim copy 
 of our old rule 10 II. T. 13 Vic., which was taken from Eng. R. G. 10 M.T. 3 Wm. 
 IV., Jervis N, R. 96 ; 9 Bing. 445. 
 
 {p) This section seems to apply only to omissions in writs or indorscmeuts. 
 Mistakes are provided for by section 222. 
 
 (q) The expressions inset . '.or indorse on apply as well to the contents of tke 
 writ as to its indorsements. f the forms in Schedule A, Nos. 1, 2, 3, 4, 5 and 6, 
 be not strict'y followed, this section will apply. 
 
 (,) The court always had power to amend the writ, which was the act of the 
 court ; but not the copy, which was the act of the party : see Byfield v. Sirett, 
 2 Dowl. P. C. 739; Ecclcs v. Cole, 8 M. & W. 537 ; Lyman v. Brethren, 2 Cham. 
 R. 108 ; I^icol v. Boyne, 2 Dowl. P. C. 701. An amendment therefore, when 
 made of the original writ, but not of the copy served, often caused a variance 
 which placed the party affected in a worse position than before amendment. The 
 powers formerly vested in the courts as regards original writs is by this section 
 ex -ended to the copy also. It was a question whether a copy could be amended 
 after service, so as to make such service good : see Byfield v. Street, 2 Dowl. 1'. C. 
 739; also see Crow v. Field, 8 Dowl. P. C. 231 ; Jlally. Kedinglon, 5 M. A W. 606. 
 It was said that the court by ordering the amendment would bo ordering a fiction 
 
8. 48 ] 
 
 AMENDMENT OF WRITS. 
 
 49 
 
 of the matters required by this Act to be ^seried therein or nny.M'i'igi" 
 
 * \ the iiidorse- 
 
 inJorsed thereon, such Writ or copy shall not on that account !"""*■ """'" 
 be held void, (s) but it may be set aside (I) as irregular, («) 
 or be amended (y) upon application made to the Court out 
 
 by mfiking lu appear that defendnnt had been served with the amended copy: see 
 Cornish el al V. Ilockin, 1 El. & B, 602. But such amendments of late have been 
 freely made : see WiUon v. Storey, 3 U.C. L. J. 50. Amendment allowed on terms 
 of re-service : Davis v. Carruthers, 2 U. C. L. J. 209, per Burns, J. Where after 
 arrest made on a defective capias, the writ was amended, but defendant dis- 
 charged, the judge refused to impose the condition that defendant should be again 
 arrested on the writ as amended : Lyman v. Brethron, 2 Cham. R. 108. Where a 
 jud^e in chambers improperly ordered a writ and service to be set aside, the 
 court above amended his order by setting aside only the copy and service : Tad- 
 man v. Wood, 4 A. <fe E. 1011, 
 
 (s) An irregular proceeding is good for many purposes. It remains in force 
 until set aside. A nullity has no effect whatever. A nullity is therefore inca- 
 pable of being amended : Macnamara on Nullities, 24, Where there is a doubt as 
 to whctlier a proceeding is an irregularity or a nullity, it should be viewed as an 
 irregularity merely: Ucrr v. Dour/lass, 4 Prac. 102. 
 
 (/) " May he set aside," &c. This of course intends an application to be made 
 by the party adverse to the party whose proceeding is defective. But it is nppre- 
 liLMuled that the party in fault may, if he be the first to perceive the irregularity 
 jiiiiiself, apply to have it amended. 
 
 ()() An irregularity is defined to be the want of adherence to some prescribed 
 rule or mode of proceeding. It consists either in omitting to do something that 
 is necessary for tiie due and orderly conduct of a suit, or doing it in an improper 
 m.inner. By the former is meant " omissions," by the latter " mistakes." 
 
 (i) An amendment has been generally allowed where the situation of the par- 
 tics was not changed by it, and where otherwise there would have been a failure 
 of justice : Flock v. Pachco, 1 Dowl. N. S. 388, per Alderson, B. ; see also Good- 
 child v. Leadham et al, 5 D. <fe L. 383. Thus plaintiff's attorney may amend the 
 writ of summons before service, by correcting a mistake as to the name or number 
 of defendants, and may cause it to be resealed without altering the teste : Gibson 
 v.Viirlet/, 28 LawT. Rep. 158. Where an irregular proceeding was amendable as 
 of course, the court refused to set it aside : see Popkins v. Stnith, 7 Bing. 434. 
 Since the Uniformity of Process Act in England, it has been unusual for the 
 judges to amend the forms of process prescribed by that act, orcept where the 
 Statute of Limitations would otherwise be a bar to the action, or wliere the irru- 
 guhuity was a mere clerical error: see Lakin v. Watson, 2 Dowl. P. C. 633 ; I'ifilts 
 V. Gossctt, 1 Scott, 3 IS; Partridge v. Wellbank, 5 Dowl. P. C. 93 ; Broivn et al v. 
 F'llUrton, 13 M. & W, 556; Christie et al v. Bell et al, 16 M. & W. 0<)9 ; Carne et 
 al v. Malins et al, 20 L. J. E.t. 434 ; Green et al v. Ketlelby, 8 Dowl. P. C. 783, 
 
 The following cases, though not etrictly examples of " ouiissions," may be re 
 fcrred to in illustration of these remorks : 
 
 1. Name of Plaintiff— Moody v. Aslatt, 3 DvmvI. P.C. 486 ; Came et al v. Malins 
 et ul, 2 L. M. & P. 498. 
 
 2. Name of Defendant— Carr v, Shaw et al, 1 T. R. 299 ; Rutherford v. Mein, 
 2 Smith, 392 ; Wood v. Hume, 4 D. & L. 136 ; Goodchild v, Leadham et al, 5 D. & 
 L. 3S3 ; see also Sale v. C'rcmpton, 2 Str. 1209 ; Roberts el al v. Bate et al, 6 A. it 
 E. 778 ; Brown et al v. Fullerton, 13 M. &, W. 586 ; Christie d al v. fiell et al, 16 
 M. & \Y. 669 ; Oarne et al v. Malins et al, 6 Ex. 803, 
 
w-'j! .a 
 
 ■.,'1 
 
 m^ 
 
 50 
 
 TIIC COMMON LAW PROCEDURE ACT. 
 
 [s. 48. 
 
 of which the same issued, or to a Judge, (?y) and such amend- 
 ment may be made upon any application to set aside theWrit, 
 
 3. Diih' of Writ— Kirk v. Dolbi/, 8 Dowl. P.C. 1C,6 ; Williams v.Williams, 10 M. 
 & W. 4T<;; Mavor v. Spalding, 1 D. & L. 8T8 ; Culverwell v. iVi/z/ce, 4 D. & L. 30; 
 Cawphell V. ^»iflr^ et al, s'c. B. 196; s. c. 15 M. &, W. 559; Bailey y. Owen, 
 9 W. H. 1-28 ; C/ar/;e v. Smith, 2 H. tt N. 753. 
 
 4. Teste of Writ — Wahelinej v. Watson, 1 C. & J. 467 ; Edzoards v. CoZ/(>)«, 
 5 Dowl. P. C. 227 ; Oorrall v. Foulkes, 5 D. & L. 690 ; %crs v. Rathburn, Tny. 
 U. C. K. 127. 
 
 Mnny importnnt cnSL'S with respect to the nmenclmont of process, deckled since 
 the Unifdrinitv of Process Act will he found collected in a note to Wood v. Ilumt, 
 4 D. & L. 139 note a. 
 
 Tlic I'fliictfiiice of tlie com-t to nniend the writ wlicn not in strict complinnce 
 with the riiil'oi'niity of Process Act did not extend to indorsements upon the writ. 
 A distinction wiis iiindo between non-compliance with the terms of an act of parli- 
 ament and of a I'ule of conrt : see Cooper v. Waller, Tabravi v. Thomas, 3 Dowl, 
 P. C. 167. Tlio forms of the writ were prescribed by the Eng. Stat. 2 Wm. IV, 
 cap. 39. Tlie indorsements were made necessary by Eules II. T. 2 Wm. IV. 
 P.. II. and j\I. T. 3 AVm. IV. No. 3: see Jarvis' New Rules, p. 90, 94. 
 
 The fo'lowing- cases in reference to amendment of indorsements may be useful: 
 
 1. Jni/drncineiit required by section 14 of our C. L. P. Act as to debt and costs: 
 see Uirju/iait v. Dick, 3 Dowl. P. C. 17; Shirlei/ v. Jacobs, 3 Dowl. P. C. 101; 
 Cooper V. Waller. Tubram v. Thomas, 3 Dowl. P. C. 107 ; Trotter v. Bass, 3 Dowl. 
 P. C. 407 
 
 2. Indorsi'uifiil on jduries writ, of date of issue of former writ: Mcdlicottv. 
 Hunter, 5 Ex. 34. 
 
 The writ and indorsements as regards amendment must now be deemed upon 
 an equal footiiij^. The C. L. P. Act makes no distinction. An enactment similar 
 to tlie one here annotated has been introduced into the recent Bills of Exchann;e 
 Act in Enii'land, Where a wi'it issued under that act omitted the name of the 
 maker of the note sued upon, the court allowed the indorsement to be amended: 
 Knight v. Pocock, 17 C. B. 177. 
 
 (?(•) 1. Generally an to proceedings by summons and order. Unless a distinction 
 be madii in a statute between the powers of a judge in chambers and those of the 
 court, the judge has the same powers as the court: Smeeton v. Collier, 1 Ex. 450. 
 And where a judge exercises the duties which belong to the court, it is to be 
 taken that he is to exercise them in the same manner as the court itself, unless 
 there be something in the context of the statute which leads to a different con- 
 struction : 11/. 4ti3, per Parke, B. If a party make application to full court in a 
 vexatious and oppressive manner, when his object might have been more speedily 
 obtained at a far less cost upon an application to a judge in chambers, the court 
 may discharge his rule with costs: Duke of Brunsiviek v. Sloman, 5 C. B. 218. 
 If the judge to whom an application be made, having in the matter before him 
 concurrent jurisdiction with the full court, refuse *'he order applied for, an .appeal 
 as a general rule will lie to the full court : see Chapman v. King et al, 4 D. tfe L. Jill ; 
 Teggiv \. Langford, 10 M. & W 556 ; Stokes v. Grissell, 23 L. J. C. P. 141 ; s. c. 
 14 C. B. 678. An application may be made to a judge in chambers to rescind his 
 own order: Shatv et al v- I^lckerson, 7 U.C. Q.B. 641. If he refuse, no appeal can 
 then be made to the full court: Thompson et al y. Becke,4 Q.Ji. 759. Onejudgcmay 
 rescind the order of another judge even on the same material that was "before the 
 first judge, but whether the second judge will do so or not must always he a question 
 for himself, according to the nature of tlie fact : Demill v. Easterbrook, 10 U. C. L.J. 
 246. A judge in chambers has the same jurisdiction in respect of the costs of a 
 summons as the coiu-t whom he represents lias over the costs of a rule : Boi d. 
 Freacott v. Roe, 9 Bing. 104; In re Bridge and Wright, 2 A. <fe E. 48; Sheriffs 
 
s. 48.] 
 
 AMENDMENT OF WRITS. 
 
 51 
 
 Gresley, 1 H. <fe W. 588 ; Davij v. Brown, 1 Bin<». N. C. 460 ; Wilson v. Northorp, 
 4 Dowl. P.O. 441. Tlie practice formerly was otherwise: see Spiceretal v. Todd, 
 2C. A'l- 165 ; Jieady. Lee, 2 B. tfe Ad. 415. Tlie judge wlio rnalcos an order may, 
 if so disposed, fix tlie amount of costs : Collins v. Aron, 4 Bing. N. C. 233. And 
 if, Imving the power, he exercise his discretion in doing so, a difference of opinion 
 bt'lwecn him and the court in the particular case cannot avail against his order: 
 Tomlinson v. Bollar' 4 Q. B. 642. If the judge in any matter before him exceed 
 ills jurisdiction, it is ; 9 duty of the party affected by his order, to appl}' to the 
 coiut to vary or rescind it, on the ground that it is not the result of a correct 
 exercise of discretion. It is said that there is no inflexible rule as to the period 
 nt which such applicati' n should bo made; but the party must at least apply 
 within a reasonable time ■ In re Glass 6: Springer, 13 U. C. C. P. 419. Two years 
 is iin unreasonable time : Griffin it al v. Bradley, 6 C. B. "722. Four terms unrea- 
 sonable : Buffalo and Lake Huron R. Co. v. Ilemmingway, 22 U. C. Q. B. 562. 
 lltasoiiable time means at all events before next step taken : Meredith v. Gittins, 
 18 (I. B. 237. The application should as a general rule be made in the course 
 of tlie term next after the decision : Orchard v. Moxsy, 2 El. <fe B. 206 ; affirmed 
 ill Collins et al v. Johnson, 10 C.B. 688. If application made on the last day of the 
 ensuing term for a rule returnable on the first day of the next terra, it will be too 
 i;ito : Bank of Montreal v. Harrison, 19 U.C. C.P. 276. If an order appear to have 
 been made " by consent," the court cannot presume that it is incorrect. A pai'ty 
 to the order cannot move the court to set aside an order made with his own con- 
 sent. If the words " by consent" were improperly inserted, then application 
 should be made to the judge to set the order aside: Hall v. West, 1 D. cfe L. 412. 
 Uiulor tiie Interpleader Acts, an order by consent disposing of the property in 
 dispute, though bad for not stating the consent on the face of it, was held to be 
 a n'ood award between the parties who had consented : Harrison v. Wright, 13 M. 
 it \V. 816. The court cannot take notice of a consent on a summons, unless fol- 
 lowed in due time by an order drawn np and served : Wood v. Harding, 3 C. B. 
 968. And generally an order is of no force till served : see Belcher ct al y. Good- 
 ercd, 4 C. B. 472. If a party lie by for an unreasonable time after an order has 
 been made and served, and after that order has been made a rule of court, he 
 cannot move the cov;rt to set it aside : Clement v. Weaver, 3 M. «fc G. 655, per 
 Tindal, C. J. If the application be made at chambers in August ftnd refused, and 
 a similar application be made again in November, the period for appeal is reck- 
 oned from August: Clarke r. t'l'iith, 6 W, R. 522. A judge in chambers is, in 
 general, for the purpose of all motions before him, a judge of all the courts : Pabner 
 V. The Justice Assurance Society, 28 L.T. Rep. 120; see also Con. Stat. U.C. cap. 10, 
 s. 10. When the order has once been made a rule of court, the application should 
 be to set aside the rule of court in which the judge's order is merged : lb. 553 ; see 
 also Casmly v. Steuart, 2 M. & G. 489, note a. On a motion in court to rescind a 
 judi^e's order, the affidavits .'.'n which such order was obtained should be before 
 the court : Necdham v. Bristowc, 1 Dowl. N.S. 700 ; Povock v. Pickering 21 L.J. Q.B. 
 R65 ; Mitchell v. Harding, 5 L. T. N.S. 348. The rule, if obtcined, should bo drawn 
 up on reading the affidavits filed in chambers : see Edwards et nx v. Mnrfi/n ct al, 
 21 L. J, Q. B. 87 n. ; Grimll v. Stokes. 23 L. J. C.P. 141 ; s. c. 14 C. B. 678 ; ami 
 notes thereto. Where a judge in chambers discharged a summons to set aside 
 ft iinal judgment, it was held that an application to the court for the same purpose 
 must be by way of appeal from the order and not as an original motion : Waddell 
 V, Corbelt et al, 26 U.C. Q.B. 243. Where upon a summons at chambers the judge 
 makes no order and the same application is made by motion to the court, the 
 piirty is not confined to the affidavits used in chambers, but may use fresh aftida- 
 vits disclosing additional facts, although ho cannot do so upon a motion to rescind 
 ajudite's order: Cesariniv. Ronzani, 31 L.T. Rep. 203. 
 
 2, i'ltrticularly as to applications under this section. In ordinary cases the appli- 
 oation should be made in chambers. If the irregularity happen during vacation, 
 tlie application should always bo made in chambers: Cox v. Tullock, 2 Dowl. 
 
52 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 48. 
 
 P. C. 47 ; Jfinton v. Stevenx, 4 Dowl. P. C. 283 ; Bag. Cham. Pr. 96. If the party 
 applying bo dissatisfied with the decision of the judge and an appeal to the full 
 court be intended, the motion should be made as early as possible during the fol- 
 lowing term : see Stigars v. Concanen, 5 M. <fe W. 80 ; Collins et al v. Johnson, 16 C.B. 
 688. When notice of intention to move necessary: see Dotigall v. Maclean, Dra. 
 Rep. 330; Ferrie v. Tannahill, lb. 340. If the question before the judge in cliara- 
 bers be whether the application to set aside process for irregularity is mode in | 
 sufficient time, it is a question for his discretion and it would seem that the court j 
 will not review his decision : see Tadman v. Wood, 4 A. & E. 1011. The court 
 will very seldom entertain an appeal against the decision of a judge in chambers, 
 declining to give effect to a motion for irregularity : Gilmour et al v. Wilson et d, | 
 5 U. C. Q. B. 154. Semble, although the judge himself might entertain the appli 
 cation a second time, yet he is not bound to do so upon a mere irregularity: 74. 
 per Robinson, C. J. A judge in chambers has authority to open again an order I 
 granted by himself, or even to rescind it before it has been carried into effect, 
 upon his discovering that ho has made it inadvertently, or that he has been sur 
 prised into making it by any perversion or concealment of facts : Shaw et al v. 
 Nickerson, and Oillespie et al v. Nickerson, Y U. C. Q. B. 543, per Robinson, C. J. 
 The motion should be either that the writ be set aside or amended at the costs of I 
 the plaintiff. All such applications, whether to the court or a judge, sliould be I 
 promptly made, as a general rule, within the time allowed by the writ fori 
 appearance : Tiling v. Hodgson, 13 M. «fe W. 638 ; Tyler v. Green, 3 Dowl. P. C. 439; 
 Herbert v. Darley, 4 Dowl. P. C. 726 ; Edwards v. Collins, 5 Dowl. P. C. 227 ; Barni 
 V. Skerlock, 7 Dowl. P. C. 530 ; Child v. Marsh, 3 M. «fe W. 433. It must bo borne 
 in mind, when referring to English authorities, tliat the time limited for appear [ 
 ance in ordinary cases used to bo, there ns here, only eight days. It is now fa 
 days in both countries. Cases therefore, under the old practice deciding that I 
 applications made eight, nine, or ten days after knowledge of the irregularity were I 
 too late, cannot be received as positive authority under the new practice. lijj 
 rule of court, " It is ordered that no application to set aside process or proceedinj? j 
 for irregularity shall be allowed unless made witliin a reasonable time, nor if the I 
 party applj'ing h' taken a fresh step after tlie knowledge of the irregularity:" 
 R. G. pr. 106. 'x.iis rule must not be rigidly construed as apjilying to persons ia I 
 close custody: Barry v. Eccles, 2 U. C. Q.B. 383, P. C. per Ilagernian, J. 8cdm.\ 
 "Wecaniiot admit the argument advanced on behalf of the defendiuit, that be I 
 cause she is a prisoner, she is entitled to greater favor than any other person: j 
 Claridge v. McKenzie, 2 Dowl. N. S. 898, per Tindal, C. J. 
 
 1. "Reasonable time," as applied to the setting aside of mesne process — five day! I 
 reasonable: Firleyv. llallett, 2 Dowl. P. C. 708. Six days reasonable: A'm'V/iv.l 
 Pcnnell, 2 Dowl. P. C. 654. Twenty-three days not so : Foimis v. Stokes, 4 Dowll 
 P. C. 125. From 4th June till following M. T. too lute : Lcivis v. Davison, 3 Dowlj 
 P. C. 272. Arrest 28th August, application 6th November following, too lateF 
 Parker v. Bayley, 5 D. & L. 296. The time begins to run from the time wlieoj 
 the party complaining had the means of knowledge, thougli in fact he did not knwl 
 if the irregularity till afterwards : Lewis v. Lavison, 1 0. M. & R. 655 ; /ScymoKrl 
 v. Maddox, 1 L. M. & P. 643. 
 
 2. " Fresh step" after knowledge of the irregularity as applied to process — Too late j 
 after oppearance : Fox et al v. Money, 1 B. cfe P. 250 ; llompay v. Kenning, 2 Cliiij 
 236 ; see also Steele v. Morgan, 8 D. (fe R, 450. Too late after justification of bail [ 
 Jones V. Price, 1 East. 81. Too late after bail perfected : Chapman v. Snow, 1 Kl 
 A P. 1 32. For this purpose the affidavit to hold to bail is part of the proecii[ 
 D' Argent v. Vivant, otherwise Taylor, 1 East. 330. 
 
 The following have been held to be " fresh steps" so as to estop defendaiiil 
 objecting to previous irregularities. An undertaking to appear: Anon. 1 Chit 
 129; Holliday v. Imwcs, 8 Bing. N. C. 541. Payment of part of debt and costs: 
 Monday v. Scar, 1 1 Price, 1 22. Admission of the debt with a request for tiniel 
 Pawca v. Knight, 1 Bing. 132. Demand of declaration not a fresh step : Jlodgm^ 
 
s. 49.] 
 
 AMENDMENT OP WRITS. 
 
 53 
 
 upon such terms as to the Court or Judge seems fit. (x) 
 19 Vic. c. 43, s. 37. 
 
 49. (u) If any one of the forms of Writs of Summons in Amon.iment 
 the Forms (A) respectively Nos. 1, 3 and 4, has by mistake ofWiit be 
 or inadvertence been substituted for either of the others, (s) by error for 
 such mistake or inadvertence shall not be an objection to the '"'" 
 Writ or any other proceeding in such action, (a) but upon an 
 
 V. Bowell, 3 M. <fe W. 284. A defendant having appeared and e.^amined evidence 
 on an assessment of damages which had been carried down by a writ of trial 
 issued from the Queen's Bench, under our statute 8 Vic. cap. 13, s. 54, was held by 
 such conduct to have waived irregularities in the proceedings before them had in 
 the Queen's Bench : Small v. Beasley, 3 U. C. Q. B. 141. If defendant lie by and 
 allow plaintiff to take several steps, he thereby waives all previous irregularities 
 in liis proceedings: Arnoidv. Fish, 5 0. S. 140; Proctor v. Yontiff, II. T. 4 Vic. 
 3LS. U. & H. Dig. " Irregularity," 15. If he move a judge in chambers, he must 
 state all the irregularities he relies upon, and cannot afterwards in term resort 
 to other irregularities, which, though existing at the time of the application in 
 chambers, were then passed over without objection : Arnold v. Fish, 5 0. S. 140. 
 The summons should state the several objections intended to bo insisted on : see 
 R, G. pr. 107. 
 
 (x) It is thought that the court will impose costs upon the plaintiff only in cases 
 of irregular proceedings, such as before the act would have been set aside : liUsh. 
 Pr. 2 ed. 250. Formerly it was not usual to set aside process where there was a 
 substantial compliance with the act, or rules regulating the same : see Yardley v. 
 JoMS, 4 Dowl. P. C. 45 ; Lewis v. Davison., 5 Tyr. 198 ; Pickman v. Collis, 3 Dowl. 
 r.C. 429 ; Englchart v. Eyre, 2 Dowl. P.O. 145 ; Youlton v. Hall, 1 Dowl. P.C. 175 ; 
 Ankn d al v. Jones, 4 Dowl. P. C. 120; Bust v. Chine, 3 Dowl. P. C. 6G5 ; Kinrj v. 
 Muukhouse, 2 Dowl. P. C. 221. These cases are noted not so much as authorities 
 applicable to the state of our laws, as proofs that it was not usual for the court to 
 feet aside process when there was a substantial compliance with the governing statute 
 or rule of coxirt. Each case must rest upon its particular circumstances. The 
 discretion of a judge in chambers in such matters when exercised by him will be 
 seldom reviewed by the court above: Tadman v. Wood, 4 A. &E. 1011. In the 
 first place, it appears that application under this section will in general be made 
 by an adverse party. It will, in most cases, be by a defendant seeking to set aside 
 proceedings for irregularity, or to have them amended by the plaintiff. In many 
 cases, if the applicfition succeed, it may be held that plaintiff ought of right to 
 pay the costs, inasmuch as his error occasioned the application : see l/rquhart v. 
 Did; 3 Dowl. P.C. 17; Turyier v. Gill, 3 Dowl. P.C. 30; Shirley v. Jacobs, 3 Dowl. 
 P. C. 101 ; Cooper v. Waller, 3 Dowl. P. C. 167. If the rule or order be moved 
 with costs, and be afterwards discharged without any special directions as to 
 costs, it will be understood as with costs : see R. G. pr. 108. 
 
 (i/) Adopted from Eng. Stat. 16 & 16 Vic. cap. 76, s. 21. 
 
 (z) The preceding section (sec. 48) applies to omissions in process generally, 
 I The present section applies only to the erroneous substitution of one of tiie three 
 forms of writs given in the schedule for any other of them : see Green v. BraJdyll 
 1 4 W. R. 487. 
 
 (a) Where the form No. 1 to be used when the defendant resides within the 
 I jurisdiction was substituted for form No. 3, the defendant being resident without 
 the jurisdiction, the court, though they did not set aside the writ, set aside an 
 
w 
 
 
 ;ii?;,i' 
 
 64 
 
 THE COMMON LAW PROCEDUIIE ACT. 
 
 [8. 5ft. 
 
 ex parte OpplicatioD to a Judjie, (i) whether before or after 
 an application to sot aside the Writ or any proceeding there- 
 on, and whether the same or notice thereof has been served 
 or not, the Writ may be amended by such Judge without i 
 costs, (c) 19 Vic. c. 43, s. 38. 
 Attorney 50- (d) Every Attorney whoso name is endorsed on any 
 
 wlioHB name _^ • . i /. , ,. • / i i' 
 
 iH iiKidised Writ issued for the co nmencement of any action, (e) shall, 
 t.) ii.'c litre ' on demand in writing made by or on behalf of any Dcfon- 
 HUfditOii't, dant, (/) declare forthwitli whether such Writ has been 
 j>laiiitiM".s issued by him or with his authority or privity, and if he 
 "(MmioRMi.' answers in the affirmative, (y) then he shall also, in case the 
 Court or a Judge so uu ■•lare in writing within a time 
 
 to be limited by such C'.' •. Ige, the profession or occu- 
 
 pation and place of abuiiu of the Plaintiff, (7(.) on pain of I 
 
 order obtained by plaintiff allowing liim to -oeeoc' '*' personal service lind 
 been effected : Hasketh v. Flcmming, 24 L.J. Q.I.. 2r>r,, fii>t, ;ufi pcndently of this 
 enactment, the court, it seems, baa the power to orciLn- all umendments to be 
 made necessary for determining the real question in controversy between the par- 
 ties : see section 222 of this act, and Cornisli et ul v. llockhi, 1 El. & B. 602. 
 
 {It) This is an enabling clause, and it is the plaintilT who is to avail himself of 
 it : see Uasketh v. Flemming, 24 L. J. Q. li. 25.5, jxr Coleridge, J. 
 
 (e) The difference between this and the preceding section (sec. 4S)with respect 
 to costs, should be noticed. Amendments under tliis section shall be made with- 
 out costs. Amendments under the preceding section shall be upon such terms as 
 to the court or the judge may seem fit. 
 
 {(l) Taken from Eng. Stat. 15 & IG Vic. cap. 7fi, s. Y. Much resembles repe.iloil 
 Stat. 12 Vic. cap. 63, s. 31, which was a transcript of Eng. Stat. 2 "Wm. IV. cai). 
 39, s. 17. The object of this section is to give the defendant full information as 
 to the place where he may go, in order to settle the action : sec Dawes v. Soli- 
 monson, 6 Scott, 596. 
 
 («) Applies equally to writs of capias nud summons : see Gikou v. Carr, 4 Dowl. 
 P. C. 618. 
 
 (/) No time is mentioned within which the demand must be made. It would 
 be clearly too late after verdict: see Hooper v. Harconrl, 1 II. Blac. 534; Shiwlkr 
 V. Roberts, Barnes, 126. It should be made at least soon after the circumstances 
 which render it necessary have come to defendant's knowledge. 
 
 ((]) If the attorney answer in the affirmative, and defendant insists upon know- 
 ing the plaintift''s profession, abode, <tc., defendant should take out a summons 
 for the i)urpose. PlaintifTs attorney is only bound to deliver such particulars in 
 case the court or a judge shall so order and direct. In one case an order was 
 refused where it appeared that the object of the application was to arrest plaintift' 
 on a criminal charge: Harris v. Holler, 7 D. <fe L. 319. But though required for 
 a collateral purpose, it may sometimes be ordered : Cox v. Bockett, 18 C.B. N.S. 239, 
 
 (/«) A temporary abode at a coffee house is insufficient. Defendant entitled to 
 ask for a better residence: Hodson v. Gnmble, 3 Dowl, P. C. 1Y4; GUson v. Cnrr, 
 4 Dowl. P. C. 618. If the information given be insuflicicnt, a summons should be 
 taken out for better particulars: Smith v. Bond, 2 D. & L. 460. If the informa- 
 tion be false, the parties who give it are punishable for contempt : Jb. In a case 
 
 Ei;;i .'■■m 
 
s. 50.] 
 
 AUTHORITY OF ATTORNEY TO ISSUE WRIT. 
 
 55 
 
 bcin2; '^n\ky of a contempt of the Court from which such J','.|";!,'i''Ji.'j[;f 
 Writ appears to have issued; (/) and if such Attorney do- |['.''''''[^"'^ '"; 
 cliiros that such Wiit was nut issued by him or with his it out. 
 iiuthority or privity, all proceedio!j[s upon the same shall be 
 staved, and no further proceedings shall be taken thereon 
 witli')iit leave of the Court or a Judge. {J) 19 Vic. c. 43, 
 
 vvliert; the particulars wore fal.sc, an application to stay tlie procaodiiios made 
 al'ti-'i' trial wa.s refused, ns it did not appear that the defendant had snstained any 
 riiil pfejiidice from the fraud practised upon hiin : 2 D. «fe L. 4tiu. IJiion an ajipli- 
 c'iition by defendant, groiindetl on an affidavit of his attorney, statiii;r — 1. That lie 
 had apjilied to plaintiff's attorney for particulars of phiintiirs residence and %va8 
 infoi'iiK.'d by the attorney that ho did not positively know plaintiff's residence, 
 but believed it to bo at Windsor ; but — 2. That tho defendant had good ground 
 to l)ijlieve and did believe that plaintiff's residence was not at Windsor, but in the 
 United States of America; an order for staj' of preceedings was made, no cause 
 buinjj shown: Iloitghtoii v. Grcal Wcstirn R. Co., 3 IT. C. L. .1. 70. The liability 
 t(i costs of an attorney who brings an action without knowing or being able to 
 give the address of his clients, was much discussed in a recent case. No decision 
 was eomo to, for tlie case went off upon other points : see CoHius et al v. Johnson, 
 10 C. 15. 588, 
 
 (i) "Where an attorney received instructions by a letter dated at " Bridport," 
 and afterwards received from the plaintiff another dated at " Lynn," and an 
 order having been obtained ho gave " Bridport" as tho place of residence ; it after- 
 wards ajjpeared that the plaintiff had left Bridport before the action was com- 
 iiii'Mcc'd, and a second order was obtained, upon which the attorney gave " Lynn." 
 Tills too, turned out to be incorrect. The court, upon motion for an attachment 
 ni;aiiist the attorney, ordered him to pay the costs of tho inquiry and of the 
 motion, and stayed proceedings until such time as a true address could be given : 
 ,Vt'((/ V. Ilolden, 3 Dowl. P. C. 493. Lender the old practice, when an attorney 
 refused to comply with the judge's order, the court allowed defendant to non 
 piva. ])laintitr, and ordered the attorney to pay tho costs : Oi/iin v. Kirbii, 1 Str. 
 4iU. I'laintitf's attorney was required by a judge's order to give forthwith tho 
 adih'oss of the plaintiff. Failing to comply with tho order, the attachment was 
 apiilicd for in disobeying the judge's order. The order was not in the terms of 
 llie statute, nor was it made a rule of court, held that the application could not 
 be granted : Malpass v. Madd, 3 IL <t N. 246. Before an attachment will issue it 
 nmst be shown tliat there was a demand m loriting vnAtXa : Brown v. Williams, 
 1 A'. 11. (Q. B. 18C3) 2G0. 
 
 (,/) These latter words, "all proceedings upon the same shall be staNed," Ac, 
 were not used either in 12 Vic. cap. 63, s. 31, or in the Engli.sh act 2 \Vm. IV. 
 cap. o'.), s. 17. The provision is a now one, founded upon Eng. Rule, No, 14 of 
 M. T. a Wm. IV.: Jervis N. R. 4 edn. 98, from which our Rule 11. T. 13 Vic. 
 No. 12, was copied. It is not clear but that tho court, independeiitU' of this 
 eiiaetnient, has the powers therein conferred. In Opp(nhebn v. Jlarristm, 1 Jiurr. 
 20, pi'oceedings were set aside on tho ground of an attorney's name having been 
 used witliout his authority. See also llopwood v. Adams, 5 Burr. 2G60, where a 
 juilgiucnt was set aside under like circumstances. The attorney, besides, is an 
 ofllier of the court, and as such bound to obey orders of the court in reference to 
 actions by him conducted. The general jurisdiction of the court gives it power 
 to control its own process, and prevent that process from being abuseil : see 
 Jdhiison V. Birlci/ et al, 5 B. <fe Al. 540 ; Workn v. Smith, 5 B. tk Al. 543, note a ; 
 Bnmlty v. Dalton, 2 Str. Vo4. 
 
66 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [S. 51. 
 
 Defpndnnt 
 may iipiieur 
 lit any 
 tiiiui iH'foro 
 iudijmi'iit. 
 
 APPEARANCE. 
 
 St. (k) The Defendant may appear (l) at any time before 
 Judgment, (m) and if ho appears after the time specified 
 cither in the Writ of Summons or in the warning indorsed 
 on any Writ of Capias served on him, or in any rule or order 
 
 {k) Taken from i^n;?. Stat. 15 & 16 Vic. cnp. 70, s. 29. Founded upon the first 
 report of tlie Common Law Commissioners, section 16. The immediate object of 
 the writ is " to cause the defendant to appear," which is done by the entry of a 
 memorandum of appearance with the proper officer. This memorandum was 
 until hitcly entered either by defendant himself when ho chose to appear, or by 
 plaintiff for him when he neglected to do so. Some persons are of opinion that 
 an appearance is an unmeaning form ond " altogether needless;" but the Common 
 Law Commissioner.s thought differently. They described it as " a convenient 
 mode of intimating to plaintiff defendant's intention of resisting the action." 
 When, however, tiio time fixed by the practice of the court for appearance is 
 allowed by defendant to elapse without appearance, it may reasonably be assumed 
 that defendant, as ho has not " intimated his intention," has no intention of resist- 
 ing the plaintiff's proceedings. In the face of such a presumption an ajipoarance 
 by i)luintiff for defendant is most undoubtedly an " unmeaning form." Therefore 
 the legislature by the enactments following have, upon the recommendation of 
 the Common Law Commissioners, abolished the latter mode of appearance, techni- 
 cally known as " appearances per statute." But as the presumption arising from 
 the fact that no appearance has been entered by defendant, and that he has no 
 intention of defending, may not always be consistent with facts, it is provided by 
 this act that defendant may, upon certain conditions, " appear at any time before 
 judjwment." Defendant may at any time come in and watch his rights, without 
 prejudice to the plaintiff. Appearing before plea pleaded, ho will have every 
 advantage that an appearance would have given if made within the appointed 
 time. If he appear after plea pleaded he will be in a position to see to the regu- 
 larity of plaintiff's proceedings. Qn. If defendant appear after the time limited 
 to a writ specially indorsed, is plaintiff thereby debarred from entering judgment? 
 see Roijcrs v. Uunt, 10 Ex. 474. If a plaintiff' under the old practice entered an 
 appearance for defendant it was unnecessary for plaintiff afterwards to servo a 
 demand of plea before signing judgment. This too was held to be the law in a 
 case where the defendant after the time limited for appearance and after an 
 appearance per statute by plaintiff, himself entered an appearance and gave notice 
 to plaintiff: see Davis v. Cooper, 2 Dowl. P. C. 135, An infant can only appear 
 by guardian : Frcscohahli v. Kinasion, 2 Str. 784 ; Leech v. Clahhurn, 2 L. M. & P. 
 614; Jariiian v. Lucas, 15 C. B. N. S. 474. And not by proche'm ami/ : Siit'imn 
 v. jac/isou, Cro. .Jae. 64() ; FUzqcraJd V. Villicrs, 3 Mod. 236 ; Car}- v. Coupcr, 
 1 B. & 8. 23i>. See further I^'ca v. S7nith, 6 H. «& N. 632; C'oinns v. Brook (in 
 Error), 5 IT. & N. 700. The appearance must be duly stamped when entered: 
 Hank of iVonlreal v. Harrison, 4 Trac. 11. 331, per Draper, C. J. 
 
 (I) If defendant appear under this section, ho will thereby waive irregularities 
 in the writ, copy, and service, naj', even the total want of a writ. Moreover, in 
 doing so he submits himself to the jurisdiction of the court in which he appears, 
 no matter where the cause of action arose : see Forbes el al v. Smith, 10 Ex. 717; 
 also Humble et al v. Bland, 6 T. R. 255. The appearance if defective but not void 
 may be amended: see Wlieston v. Packman, 3 Wils, 49; Bate v. Bolton, 4 DowL 
 P. C. 677. 
 
 (m) There can be no judgment until judgment has been fully signed. An 
 appearance tiled while plaintiff' is signing judgment is in time, though plaintitf 
 affect to disregard it: Harris v. Andrews, 3 U. C. L. J. 31. 
 
ss. 
 
 51, 52] 
 
 APPEARANCE. 
 
 67 
 
 to proceed as if personal service had been effected, (/*) ho 
 shall, after notice of such appearance to the Plaintiff or his 
 Attoniev, be in the same position as to pleadings or other 
 proceedings in the' action as if he had appeared in time ; (o) 
 but ti Defendant appearing after the time appointed by the His position 
 Writ, shall not be entitled to any further time for pleading or 
 for any other proceeding than if he had appeared within such 
 appointed time; (^)) and if the Defendant appears after the 
 time appointed by the Writ, and omits to give such notice of 
 his app<'arance, the Plaintiff may proceed as in case of non- 
 appearance, (q) 19 Vic. cap. 43, s. 62. 
 53. (?") Every appearance by the Defendant in per- 
 
 ()() i. e. " W5l')in ten dnys aflep service of wiU:" see Scheclulc A, No. 1. An 
 attoincv, by nei'eplincj servk'c of n wiit of summons for his client, undeitfikes to 
 aiipeai' i'or liiin, btit tlic attcney liaH the same liiinc to appear for defendant as if 
 till! service of tlic writ of Rummons had been made on defendant himsch": S/airatt 
 V. Mamiipg, 3 U. C. L. J. 10. 
 
 (o) " Ik Khali, after notice, d'c." Where nppearanee is entered after duo time 
 tlinu^'h boforo judgment, tliero should bo notice of it: lihoih.K v. Bniant, 2 F. & F. 
 'iii,"), Thonn;li the rtotice here intended is a written one (II. G. pr. 131), a hvowkijge 
 by plainiilt' that an appearance has been entered may in some rases be held to 
 (lispLTise with the necessity for such a notice. Thus, where tlie writ of siunmons 
 s|ie(ially indorsed was served on 30tii August ; defendant on 9tli September, cn- 
 li'i'L'd nil appearance, but f^ave no notice 'hereof to plaintiff's atiorney, as required 
 by tliis section. On the same day, plaintiffs attorney imving seen liie entry of 
 tlio iippoiiranee in the proper book, at the ofHce of tlic deputy clerk of the crown, 
 niul iuiviiis also seen tlie appearance itcolf, iiotwiMistanding. signed judgment for 
 non-appearance. Held that the " knowledge of tlie plaintiff, that an a])pearance 
 was entered, though it was entered on the morning of the day after it should 
 have been entered according to the time of the servi(;e of the writ of summons, 
 was suliiclcnt to dispense with a written notice by tlie defendant that he had 
 aiipenreil:" Lnnark and D:'iimmond Flank Jioad Co. v. Bo'.hwcU, 2 U. C. L. J. 229. 
 Li'^ides, it was in this case considered that " plaintiff did not allow time for siich 
 nolice to be given — for the appearance was entered at the opening of the oflico 
 in llio morning, and plaintiff's attorney came at the same time with the papers 
 prepared to sign judgment, although seeing the appearance entered :" I(>. The 
 sninnions to set aside the judgment was made absolute without costs, because 
 " it appeared tiiat the deputy clerk of the crown had received the appearance the 
 (lay before with instructions to keep it and file it the first thing next morn- 
 ing:" lb. 
 
 (/») Otherwise plaintiiF might be prejudiced: see Bcvh v. Cooper, 2 Dowl. P.C. 
 \'Ad,per Bay ley, J. 
 
 ((/) Tliis is not contained in the English sectiou. Jt is necessary in o.'der to 
 relieve plaintiff from searching the crown office from day to day as he proceeds 
 witii his suit, in anticipation of an appearance after the time limited for appear- 
 ance has expired. 
 
 ()•) Taken from Eng. Stat. 15 A 16 Vic. cap. 76, s. 80. Founded on the first 
 report of the Common Law Commissioners, section 18. The object of this section 
 
68 
 
 THE COMMON LAAV PROCEUUllE ACT. 
 
 [s 52 
 
 Difi-Hiaiit gon (s) shall give an address (/) at which u!l i)lciidin"s and 
 
 licisoii to other proceedings not rcquii inj^ porsonul service may be left 
 
 adiirusn. fur hiiu, (m) and if such address bo not given, the appearance 
 
 shall not be received, (f) and if an illusory or tictitiun^ 
 
 address bo given, the appearance shall bo irregular and niny 
 
 WJi'-rn 
 
 iii(aiiin.,'s, bo set aside (?«) by the (lourt or a Judge, (x) and the Flaintifi 
 st-rviMi'.'^ '" »i!iy, by the Court or Judge, be permitted to proceed (ij) by 
 
 is to conipt'l defendants appearing in person to give to plnintiffs attorney full 
 ftnd correct inforniation ns to the address or place at which all papers not rc(iiiii'. 
 ing personal service may be left. 
 
 (.<) This section applies only to cases where defendant ajijiears in person. The 
 form of appearance is given in the following section (sec, 5."). A defendant who 
 appears in person is bound to know the practice of the court and cannot liu 
 suffered to excuse himself on the ground of ignorance : see GiUinghnin. v. Wtixlilt, 
 McClel. 51)8. lie is bound too by the same rules as lie would have been hiul lie 
 appeared by attorney : Kerry v. iicynohlt, 4 Dowl. P.C. 2;!4. Ikit there is nothinjf 
 to i)revent a defendant who appears in person afterwards jdeading by attorney ; 
 SCO Soper v. Draper ct al, 2 O. S. 289 ; Kerrisou v. WuUliHjboroiiyh, 5 Dowl. P. C. 
 664; see also R. G. pr. i;i9. 
 
 (<) The memorandum stating the address together with the appearance to be 
 given to the ])roper ofHccr and filed by him: section b'A. The niemorandum of 
 oddress to be tiled " as a paper in the cause." " Such address or place to be not 
 more than two miles from sucli oflice :" see II. G. pr. 138. 
 
 (?«) Notices, summonses, rules, orders, and generally all proceedings subsequent 
 to the writ, including pleadings, may be sufficiently served though the service be 
 not personal : see R. G. pr. 138. A rule vM for an attachment is an e.vceptiou to 
 this practice. The address given by defendant may or may not be his residence. 
 If his residence, the service may be made on a servant, and must at all events lio 
 shown to have been made upon some jicrson coimected with his residence : Taijhr 
 V. WhitwoHh, 1 Dowl. N. S. 600, If the place of address be not his resideiice, 
 then it seems the service must be made upon some person connected with the 
 place so named. Service of pleadings, notices, summonses, orders, rules, and 
 other proceedings, must bo made before 7 o'clock r.M., except on Saturdays, 
 when it must bo made before 3 o'clock r.M. : see R. G. pr. 135. 
 
 {v) i. e. By the officer whoso duty otherwise it would be to file it. 
 
 («') It is important here to note the distinction between an irregularitj' and 
 n nullity. The former may be waived by the conduct of the party, who is enti- 
 tled to take advantage of it, and stands good at least till set aside. The latter is 
 incapable of being waived, and has no force or cflfect whatever. An appearance, 
 if defective in the particidars mentioned in this section, is declared to be an irre- 
 gularity. To set aside an irregularity, the party objecting must ai>ply witliin a 
 reasonable time ond before taking any fresh step after knowledge of the irii'i^ii- 
 larity : see II. G. pr. 106. See also Ilcrr v. Douc/lass, 4 I'rac, 102. 
 
 (x) Court or judge : see note w to section 48. 
 
 (y) " Permitted to proceed," (fee. Qu. Does this intend an application to the 
 court or judge for the necessary permission ? There is nothing to hinder plaintiff 
 moving at one and the same time to set aside the appearauce and to be allowed 
 to proceed in the manner pointed out by this section. 
 
 1^ •■hii^imiliK 
 
^;!.] 
 
 MODE AND FOUM OF Al'PEARANCE. 
 
 69 
 
 stiekiiii,' "P the procefJings in tlio olFieo from whciico tlio 
 Wiil w.is sued out. (.-.) 19 Vic. c. 4:5, s. 03. 
 
 *i*i- (") 1'lic mode of Jippeanuicc to every such Writ of Modcnna 
 Snminons under the authority of this Act, shnll be by filing iM^'l'i'mi'.'' 
 witli the proper oflicer in that bclinlf, {h) n memorandum in 
 writing according to the folhwing form, or to the like efr>-ct : (c) 
 
 (:) PlaintitT in liis a])i)licalion must sliow tlinf tlio nppcnrniicG is witlioiit nn 
 ndilrcss ; or nn ndilrcss which is illusory or tictitious ; or tlmt the aildi'css or 
 ]il;ut' u:ivL'n U more than two miles from the office of the clerk or lU'iiuty clerk of 
 llie ei'own: as to this latter see U. G. ])r. i;>8. To prove an nppenrniicc witliout 
 tlii' accessary address, the fact after search may be sworn to in positive terms. To 
 jirove a yiven address to be illusory or tietilidus, it will be necessary to set forth 
 jiai'ticular facts which lead to that conclusion, "illusory" moans that, which 
 deceives, while " fielilious" may mean that which is desin-nedl}' untrue. If from 
 iaqniries made at the jilace given as the address of defendant it turn out that the 
 address be really fictitious or illusorj-, phiintilV, it is apprehended, is in n position 
 to apply without further incjuiry. But it must bo shown by plc.intifF that lie used 
 diK! (Iiii2;ence in order to find the address given by defendant: Fry \. lioyers, 
 2 Dowl. P. C. 412. Special inquiries must be made nt the place designated. As 
 to the sufHciency of the inquiries see Fry v. Jiopcrs, 2 Dowl. P. C. 412 ; also Bern- 
 1111)11/ V. Didr, 2 Dowl. P. C. 037. To prove that the address or place given is 
 more than two miles from the oflice of the clerk or deputy clerk of the crown, an 
 ailida\ it of the fact must be produced. If the application by plaintitf to be per- 
 mitted to proceed in manner directed by this section be nn application separate 
 and distinct from that to set aside the n]>pearanco for irregularity, it may be that 
 tlie order will be granted absolute in tlie lirst instance: aaa lirhh/cr \. Austin, 
 
 1 Dowl. P. C. 272. 
 
 {(i) Taken from Eng. Stat. 15 & 16 Vic. cap. "76, s. 31. This section is also a 
 copy of our statute 12 Vic. cap. 63, s. 23. The origin of bot'' sections appears to 
 be iliig. Stat. 2 Wm. J V. ca_ •. 39, s. 2, with which both almost literally agree. 
 
 (/)) In Eng. Act, " By delivering a memorandum to the ])roper oflicer or person 
 in that behalf, &c." The difference bc^tween ours and the English section np- 
 ]H'ai's to be one rather of form than of substance. It must be intended that the 
 oliieer should keep an appearance book or other record in which entries may be 
 made. The statute is silent upon the subject ; but 11. G. pr. 1 makes positive pro- 
 visidH for an appearance book. The rule is in effect a re-enactment of old Rule 13 
 of 11. T. 13 Vic. 
 
 ('•) The forms here given are substantially the same as those of Eng. Stat. 
 
 2 Win. IV. cap. 39, Sch. No. 2, and Prov. Stat. 12 Vic. cap. 63, Sch. No. 2. The 
 schedules to both these statutes in reality gave three forms. 1. Where defendant 
 appeared in person. 2. Where he appeared by attorney. 3. "Where plaintiff's 
 attorney appeared for defendant. The last of these three hns of course been 
 omitted from the forms above given. Appearance by plaintift" for defendant is 
 practically abolished by section 54 of this act. The form here prescribed must 
 be strictly followed. Where an act of parliament expressly provides that a thing 
 is to be done in a given form, the statute must be closely pursued : see Warren v. 
 Love, 7 Dowl. P.C. 602 ; Codrington v. Curlewis, 9 Dowl. P.O. 968. Still the form 
 60 i^iven need only be followed in cases in which it is applicable. In cases where 
 the foi in does not apply an appearance may be entered by keeping as closely to 
 the form prescribed as possible : see Smith v. Wcdderbtirne, 4 D. «fe L. 297, per 
 Pollock, C. B. If two or more defendants in the same action appear at the samo 
 
60 
 
 THE COMMON LAW PROCEDUIIE ACT. 
 
 [8. 53. 
 
 A. B., riuintiff, ngninst C. D.," 
 Defendant, or 
 ngainst 1-. D., and anof.her 
 
 or 
 against C. D., and others.. 
 
 ( // ihe Dr/diiJaiit appears in person^ h<'re give hin atlJrrnn.) (Ji) 
 
 Enteicd the day of , A.D., one thousand 
 
 The Defendant, C. D., 
 iippeiirs in potson, ((/) 
 or 
 K.F.(fl) Attorney for C.(/) 
 D. ((/) appears for him. 
 
 ciyht hundred and (/) 
 
 10 Vic. 0. 4:3,8. 61. 
 
 tiino by Hio same nt^o-noy. Iho namos of all Buch dofcndnnts may bo iiisortcd in 
 tiio one iiieinoraiuliivn of nj)i)oaran(!0 : R. (i. pr. 2. 
 
 ((/) If dofondant bo sued by initials or by his wrong name he would do well to 
 appeal' by his )ight nama: Lomax v. Kilpin, 4 D. <t L. 2!^5. In tho margin of tlio 
 appearance j)aper it, may bo stated tlmt ho is sued by tho wrong name : see 
 JJobyon V. Wodnwnrth, 8 Dowl. P. C. 601 ; Klkhcn v. Roots, Ih. 2.'i2. If ho appear 
 by his I'ight name, then plaintiff may declcro against liim in such name, monlion- 
 ing, however, that he was sued by the other thus — " A. B., by E. F. his attorney, 
 sues C. D., who has been summoned by tho name of G. D. :" see Doo v, Bnti:her, 
 ST. 11. 6)1. TIius tho suit may pro'^eed without diftieulty. But if defendaut 
 appear by tho wrong name, plaintiif may also declare against him by tlmt name; 
 800 Clark \. Baker, 13 East. 273 ; Slronil v. O-rrard, 1 Salk. 8; Chit. Arch. 12 uJ. 
 220, Also seo Goidd v. Ihirncs, 3 Taunt. 604 ; Wdliaiiin v. Bn/aiil, 6 M. it \V. 447, 
 If tho mistaken name bo idem nn)ians there will bo no irregularitj-, thus — Law- 
 rauco for Lawrf nee : WcOb v. Lawrence, 1 C. ife M. 806. 
 
 {e) Tho nnmo of tho attorney must bo given : see Warren v. Love, 7 Dowl. P.C. 
 fi02. And di'fendnut eannot ni)p('ar by more than one attorney ; see Wil!ia)m\. 
 ]Vill'iainn, 10 M. it \V. 178, per Abiin;i.'r, C. B. But such an appearance would be 
 an in egularity only, and not a nullity : lb. 
 
 (/) An appearance by a person who is not an attorney of tho court, does not, 
 it seems, entitle tho opposite party t,o sign judgment but only to move to set 
 aside proceedings: svk^ Bazlei/ v. T/iompnoii, 4 Tyr. 955. And when on attorney 
 without authority ap))eared, and defendant bad not received any notice of the 
 writ, the aervico of the writ and all subsequent proceedings were set aside: Wright 
 it al V. Hull, 2 Prac. R. 26. 
 
 [p) An appearance thus worded — " In Q. B., Thomas Warren, plaintiff, against 
 
 George Love, defendant. 
 
 attorney, appears for 
 
 was held to be a 
 
 nullity: Warren v. Love, 7 Dowl. P. C. 602; seo Vodringlon v. Curlcwis, 9 Dowl, 
 P. C, 068. 
 
 (A) As to appearances in person, see preceding section and notes thereto. 
 
 (?) This blank it is presumed must bo filled in as of the date of entry. The 
 English statute is to tho effect that the appearance must " be dated on tho day of 
 the delivery thereof;" section 31. These words have not been copied by our 
 legislature ; but their omission cannot be of much importance. A blank is left 
 by tho legislature in the form here given for some date which the appearance ia 
 to bear. It cannot be any other than the day of the date of filing. The officer 
 who files an appearance is bound to mark upon it the day upon which it was filed 
 with him : see R. N. pr. 1. Supposing the assumption hero made as to the date of 
 an appearance to be correct, it follows that no appearano ought to be entered 
 nunc pro tunc. If defendant enter an appearance, having a mistake in name, date, 
 
SS. r)4, 55.] I'KOCEFOINQS UPON NON-APrEARANCK. 
 
 61 
 
 ngainst 
 to be a 
 
 9 Dowl. 
 
 ito. 
 
 The 
 10 day of 
 by our 
 : is left 
 ftranco is 
 
 10 offieer 
 wa8 filed 
 e date of 
 
 entered 
 le, date, 
 
 •1-1. (/) In no case shall it bo necessary for tho Plaintiflf I'l'in'ifr 
 
 " ■• ''J I J III, ,1 II, ,t ni 
 
 to enter an appoarauce for tbc Defondunt. 11) Vlo. o. 43, td i|.|..ai 
 8.59. 
 
 mil' 
 
 il< t'i'iiil.iiit. 
 
 Si*i. (0 I" case of n'->n-nppoarance by tho Defendant where r,, .aingH 
 
 tho Writ of Summons )een indorsed in tho Mpocial form l[17'''''ninc'« 
 
 licreinbcforo provided, (Wi) and in case tho riaintiff iiks tho "' '''"i"'"'" 
 
 itc, liG should apply to amend it and not enter a frcili one : sec Bate v. Ihlfon, 
 ■I ])(i\vl. i'. C. (177. Wlicre an apimaraneo is improperly entered and not a nullity, 
 it n)iiy, on a])pllealion l)o strnek out: see l\(<i(l v. Thiniipson, 8 liinf;. (in!>. A 
 jiidijD's order to set aside an appearance must be served before it will operate: 
 <vti Jlclc/ier V. Ooodnrd, 4 D. A L. 814, 
 
 (;■) Taken from En^. Stat, \l^ & 16 Vic cap. 7(>, s. '26. Tho phrascolo£ry oi 
 H,(i. ])r. 1!!2, wiiieh provides for the service of declarations and subsenuent piead- 
 'mn;H " iiH ml! (IS ii'/iii'e (he plaintiff hdn entered an appearanee for the defendant, as 
 wlioi'e the defendant has appeared in jjorson," is not fpiite correct. Appearances 
 h\ plaintiffs for defendants arc by this section rendered unnecessary, if not 
 nUlishcil: Widlaee v. Frazcr, 2 U. C. L. J. 184. 
 
 (k) Held not to apply to actions in which tho writ had been issued before the 
 act came into force : C'oodliffc v. i\a(«t'.«, 8 Ex. l;il ; Ji'adou v. llolcrtu, 9 Ex. 227. 
 
 (/) Taken from Eng. Sta* ^ dt 10 Vic. cap. 7(i, s. 27. Founded upon the first 
 report of tiio Common I )mmissioners, section 15. This section introduces 
 
 an entirely new ]irocecdii tiie words of tho section have no reference what- 
 
 ever to established Dracticc. ^iowlterri/ v. Monjan, 9 Ex. 7;^6, per Parke, B. Qu. 
 Wiictlicr the words of the section beinj; aflirmative take away the general ])owers 
 of till' court over their judgments, or are merely cumulative in their eilects; 
 see Hall v. Seolmn, 9 Ex. '288. 
 
 {ill) i.e. by section 15, which, be it observed, merely applies to cases where 
 the defendant is wiihin the jurisdiction of tho court. Proceedings under this 
 sectidu can only be had " in case of non-appearance by defendant." Plaintiff's 
 (ittoriiey should therefore be careful to search for an ai)pearaneo immediately 
 before making his a,)plication to the court or a judge. The search ought to be 
 made if jiossible on tiie day of the application. The aflidavit should bo explicit 
 iiikl positive to the eftect that a search for appearance was made and that no 
 ai)pearauce has been entered. Thus, " And 1 further say, that the said defendant 
 lialli not appeared to this action [or had not appeared in this action at the hour 
 
 of in tho afternoon of tho day of instant, and that he has 
 
 not, to tho best of my knowledge and b>. .et, since appeared thereto"] : see 11. G. 
 jif. 112. Under the old practice, wlierc an appearance had in fact beeu entered 
 for defendant but was mislaid by the deputy clerk of the crown and overlooked 
 by jilftintiirs attorney, who entered an appearance per statute and proceeded to 
 judgment, the proceedinga were set aside : liiian et cd v. Leonard, 3 O. S. 3U7. 
 But iield under almost similar circumstances that after judgment by default and 
 notice of assessment, it was too late to object to the irregularity : Ketchum et al 
 V, Kccfcr, G O. S. 56 ; see also Mapel v. Woodgate, 10 Jur. 839. Where an aj)pear- 
 nnce tiled by defendant was by mistake indorsed with the letters " C. C." which 
 misled the deputy clerk of the crown, who was also clerk of the county court, and 
 e.iused him to tile the appearance among his county court papers, and tho plaintiff 
 liiaiing no appearance signed judgment, the judgment was set aside upon payment 
 of costs by defendant : Diekie et al v. Elmslie, 3 U. C. L. J. 107 ; but sec Bnyilc of 
 Mouleeid v. Harrison, 4 Prac. R. 331, per Draper, C. J. The court refused to allow 
 
Ill; '■ 
 
 i.;:i 
 
 i' { J 
 
 i-MSIt ' 
 
 
 02 
 
 on Writ 
 
 «IH'ciiilly 
 
 cuilorsud. 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 55. 
 
 Sisnliife' 
 juUgiiicut. 
 
 Writ of Summons, and an affidavit of personal service there- 
 of, (n) or in case of service on a corporation, files an affidavit 
 of service in the manner in this Act authorized for service on 
 corporations, or files a rule of Court, or a Judge's Order for 
 leave to proceed under the provisions of this Act, (o) such 
 Plaintiff" may at once sign final judgment in the form (A), 
 No. 7, for any sum not exceeding tho sum indorsed on the 
 Writ, together with interest to the date of the judgment, and 
 costs to be taxed in the ordinary way, (p) and no proceeding 
 
 a plaintiff to enter an appenranco per statute without the usual aftklavit and the 
 clay of indorsement of service up(jn the writ, allliough defendant admitted llie 
 reeeipt of the copy of writ left at liis dwellintj-house: EuxscU v. Lo)ec, 2 Dow!. 
 N. S. 238 ; but see Aston v. Orenlfiecid, 2 Dowl. N. S. 547; liolfc v. Fafjct, 1 B C. 
 Hep. 78, p^;;' Wightman, J. An appearance entered by plaintiff for an iiifiint 
 defendant has been licld to be a ground of error : Stephens v. Lowndes, 3 D. &. L. 
 205; James v. Asicell, 11 Jur. 562. 
 
 (n) This provision is in a manner a substitution for the old form of appearance 
 per statute. And it has been held that in order to entitle a plaintiff to ent^r an 
 appeai'anco per statute actual personal service of the writ was necossary : see 
 Gof/ffs V. Lord Iluntinglower, 1 D. «fc L. 59!); and Christmas •v.Elckc, 6 D. it L. ]5(i. 
 The affidavit need not, it seems, now more than formerly show the manner of 
 service. Deponent if positive may in general terms swear that he " personally 
 served defendant with u true copy of the annexed writ of summons." 
 
 (o) This rule or order to be obtained pursuant to section 10. An application 
 to rescind the order when obtained may be supported by affidavits contradicting 
 those upon which tho order was obtained. This too without an affidavit of merits: 
 see Hall v. ScoUon, 9 Ex. 2.38. 
 
 (p) "At once to sirjn final j ndgnmit." Plaintiff, it would appear, is not bound 
 to delay signing judgment until a copj' of the order has been brought to defendant's 
 notice : Uall v. Scotson, 9 Ex. 238, per Parke, B. This, if a correct opinion, is 
 in strict conformity with the old practice. A plaintiff who had entered an ajjpcar- 
 anco for defendant was not bound to take much further notice of him in the 
 subsequent proceedings. Judgment signed where defendant has not appeared 
 without filing an affidavit of personal service or obtaining a judge's order to bo 
 allowed to proceed, would be, it is apprehended, uttei-ly void : see Lane v. Mc- 
 Doncll, H. T. 7 Win. IV. MS. R. & II. Dig. " Appearance." 4 ; Mcholv. McKclwi, 
 E. T. 2 Vic. MS. R. & II. Dig. same title, 6 ; Itobcrts v. Spw r, 3 Dowl. P. C. D51, 
 sed. .ju. See Watson v. Bow, 5 Dowl. P. C. 584 ; Wdliams v. Strahan, 1 N. K. .S(i9. 
 But held that a defendant who pleaded a plea which was a nullity, was not in a 
 position to move afterwards to set aside interlocutory judgment, upon the ground 
 that there was no appearance entered : Brtwxter v. Davy, 11. T. 2 Vic. MS. 11. it 
 II. Dig. "Appearance," 5. Qu. Whether plaintiff is prevented from signing judj;- 
 ment when a defendant has in fact appeared but entered his appearance after tiic 
 tmie limited by the writ? see Rogers v. Hunt, 10 Ex. 474. It is improper to sign 
 judgment for a sum including interest, when tho interest is not due upon a con- 
 tract expressed or implied: see Jiodwat/v. Lncas, 10 Ex. G67. The only exception 
 to this rule appears to bo an action upon a bill of exchange or promissory note, 
 in which action plaintiff may in his special indorsement claim interest as a matter 
 of course : Jb. 10 Ex. G74, per Pollock, C.B. Tlie court after judgment signed will 
 not presume that the claim for interest indorsed upon the writ is made without 
 
S. i)) 
 
 ] 
 
 PROCEEDINGS UPON .fON-APPEARANCE. 
 
 63 
 
 in Error or Appeal shall lie on any such Judgment ; (q) and Execution, 
 the PlaintiCF may, at the e xpiration of eigh t days from the last 
 day for appearance and nof. hf^foro^ isaiiP^yppj)fr^ upon such 
 judgment; (r) but the Court or a Judge may, after final 
 judgment, let in the Defendant to defend, (s) upon an appli- Dcnn.iant 
 cation supported by satisfactory aGBdavits accounting for the jntoaeft'iui. 
 
 foundation, 
 (lucstion it. 
 
 If such were the fact, it was the duty of defendant to appear and 
 Not having done so, he will be inijiliedly taken to have admitted the 
 ciirroctnetis of tlie elaiiu : lb. 10 Ex. &10, per Pollock, C. !>. See further SmaH v. 
 Xliujaru d- iJetroil li. Co. 1 2 U.O.C.P. 404 ; Northern li. Co. v. Lhtn\ 4 I'rac. R. 1 20 ; 
 (iiid iiote n to section 15. On an ai)i>lieation to set aside a tinal judgment on a 
 writ not speeially indorsed or indorsed so iiriproperly, on tlie ground tliat the 
 jtidniiicnt should have been intei'locutory, defendant should produce the writ or 
 (dpy bowing that it was not so indorsed, or that it wa.s not a proper case for 
 Fpeeial indorsement: Kerr ct al v. Bowie, 3 U. C. I-. J, 150. 
 
 (<l) Tliese words are not in the English act. They have reference to apjieals 
 undir our l]rror and Aj)pcal act. Con. Stat. U. C. cap. 13. "Error" in the Eng- 
 lisii net, where the word is used, has reference to proceedings in error in the 
 Kxclieiiuor Chamber. Tliere are in England three courts of co-ordinate jurisdic- 
 tion— (>ueen's Ijcneh, Common Pleas, and Exchor|uer. No appeal lies directly 
 fioiii one to the other. But an ajipeal may be had from any one of the three to 
 the (iliier two united. The two so uuited form the court known as the " Exclie- 
 quor Chamber." 
 
 (/■) The judgment is now final, instead of being interlocutory as heretofore ; 
 tlidiinh tinal execution cannot be issued until the expiration of eight days from 
 till' lust day for appearance. As to computation of the time, see Blunt v. Jhtslop, 
 Duwl. P. C. 'J82. These eight days include Sunday, whether that day be either 
 (iiui of the intermediate daj's or the last of such eight days: Koicbcrry v. Morgan, 
 ',1 Kx. VuD, If the last of the eight days be Sunday, plaintiff will be entitled to 
 issue execution on the following day, Monday: /6. y/cr Martin, U. Where the 
 writ specially indorsed was issued on 9th February, and was served on 11th Feb- 
 ruary, and consequently the time for appearance expired on 19th February (eight 
 ('.ays only being allowed by the English act, ten by ours) and judgment was 
 siujiied on 2()th February, plaintiff then desirous to issue execution, and finding 
 the eight da3-s under the act expire on Sunday, issued tlie writ on the following 
 (lay (Moiulay, 27th February), held regular: lb. Where the writ specially 
 ciidovsed was served on Sl&t December, 1856, and execution in default of appear- 
 nnte issued on 1 7lii January, held too soon and therefore irregular : Jurr it al v. 
 Il'ive, o U. C. L. J. lll,^)fr llobinson, C. J. 
 
 The summons was served on 31st December, and bj' it the defendant was told 
 tliat lie must cause an appearance to be entered for him uUniii ten days after the 
 .Hivicc of the writ, inclusive of the day of such service. We must therefore count 
 lilsl Itfcendier as one of the ten days, and besides that day the defendant bus the 
 tirst nine daj-s of January to enter his appearance. Having lliercfoi'e liie 9th 
 liamiary as his tenth day, he has all that day on which to enter his api)earance, 
 iitul judgment could not be legally signed on that d.ay. Then 9lh January being 
 the last day for entering appearance, execution could not be issued until eight 
 (lays hud elapsed from that day ; in other words after that day, and tiie 17th 
 January being tlie last of the eigiit days, execution could not go rntil 17th Jan- 
 uary had expired : see also Boss ct al v. Johnstone ct al, 4 U.C. L. J. U : Muiiiford 
 V, ilitdicock; 32 L. J. C. P. N.S. 1C8; Wcch v. Wrai/, L. 11. 3 Q. D. 212. 
 
Kill; 
 
 '.-I $ 
 
 64 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 55,' 
 
 non-appearance and disclosing a defence upon the merits. (<j 
 19 Vic. 0. 43, 8. 60. 
 
 {() The meaning of the expression " disclosing a defence upon the merits" has 
 been much discussed in the English Court of Exchequer. It was held per Parke, 
 B., and Plntt, B. (Pollock, C. B., hmtanle, and Martin, B., disnentiente), that an I 
 ordinary " affidavit of merits" was a sufficient compliance with the act : see War- 
 rington V. Leake, 11 Ex, 304. But in a later case, it was held that an affidavit 
 under this section must show some facts, upon which (ho judge may exercise bis 
 discretion : Whilej/ et al v. Wliiley, 4 C.B. N.S. 653 ; see also Bouchier et al v. Pat- 
 ton et al, 3 U.C. L.J. 48 ; Perry v. Lawless, 1 Cham. R. 168. An affidavit of merits 
 under this section is of course only necessary when the judgment has been regu- 
 larly signed : Ilall v. Scotison, 9 Ex. 238, per Parke, B. If irregularly signed irre 
 gularity must be pointed out : The Birkenhead, dr., Junction It. Co. v. jDimmack. 
 31 L. T. R. 213. The ordinary affidavit must express that defendant has a good 
 defence upon the merits : Lane v. Isaacs, 3 Dowl. P. C. 652 ; McGill et al v. McLean, 
 I Cham. R. 6. An affidavit that the defendant has a good and sufficient defence 
 on tlio merits, without words applying it to the particular action, held to be 
 insufficient : Tate v. Bodjield, 3 Dowl P. C. 218 ; Bromley v. Gerish, 1 D. & L. 768; 
 Bowery. Kemp, \ Dowl." P. C. 282; Page v. South, 1 Dowl. P. C. 412; C'rossbji\. 
 Junes, 5 Dowl. P. C. 506. It is not sufficient to say that deponent believes tbe 
 defendaijt has " a defence on the merits," ho should say " a good defence :" Ken- 
 vey V. Hutchinson, 4 Jur. 106. Where judgment was signed for want of a plea, 
 ail affidavit of the defendant's attorney, which stated that " considering he hiid a 
 good defence on the merits," was held insufficient: Pope v. Mann, 2 M. & W. 881, 
 An affidavit of merits by a clerk of defendant's attorney, " that he is apprised and 
 believes that the defendant has good grounds of defence upon the merits," insuf- 
 ficient. Bromley v. Ocrish, 1 D. & L 708. An affidavit by a clerk under similar 
 circumstances, in which he swore that he had the conduct and management of 
 the defence, and that defendant had been advised by counsel that he had a good 
 defence to the action on the merits, was held to be insuffici'>nt : Nash v. tiim- 
 hurnc, 1 Dowl. N. S. 100. The affidavit if sworn by the managing clerk of defeu- 
 dant's attorney, must state that he had the management of the particular cause: 
 J)oe d. Fiah v. McDonnell, 8 Dowl. P. C. 501 ; but see Doe d. King's College v. Kot, 
 1 Cham. R. 111. It must appear to be made either by the defendant, his attorney 
 or agent, or some person who has been concerned in the cause in such a way as 
 to make him uccjuaiuted with its merits: Rotcbothamv. Dnpree, 5 Dowl. P. C. 55"; 
 Doe d. King's College v. Poe, 1 Cham. R. 111. An affidavit by defendant's attorney 
 as to his belief, from instructions received, insufficient, where the defendant him- 
 self might make the affidavit: Bromn v. Austin, 4 Dowl. P. C. 161 : see further 
 Srho/icid V. Hnggins, 3 Dowl, P. C. 427; Arndt v. Porter, 30 L. J. Ex. 19. Vkai 
 of the Statute of Limitations: Maddocks v. Holmes et nl, 1 B. A P. 228 ; or infancy: 
 Delafield v. Tanner, 5 Taunt. 850 ; are defences on the merits : see also Berk v, 
 Mordaimt, 4 Dowl. P. C. 112 ; Cavallicr v. Michael et al, 17 L. T. N. S. 290. Affi- 
 davits in reply ought not to bo received: Warrington v. Leake, 11 Ex. 304, 
 per Pollock, C."B., and Piatt, B. ; 2 Chit. Arch. 12 cdn. 982. Bub tii'.." is appa- 
 rently not an inflexible rule : Wilson v. 2'he Municipal Council of Port Hope, 
 10 U. C. Q. B. 405. The defendant must not only disclose merits out satisfncto 
 rily account lor the non-appearance. Showing a mistake in the entry of appear- 
 ance or entry in the wrong count or office by mistake, would it is apprehended 
 be sufficient in this respect : see Dickie et al v. Elmslie, 3 U. C. L. J. 107 ; Rum 
 et al V. Leonard, 3 O. S. 307. It is probable that a defendant making applica- 
 cation under this section will at least if successful be expected to pay the costs 
 of the application : see Sistcd v. Lee, 1 Salk. 402. He may in the discretion of tlit 
 judge be compelled to pay the amount claimed into, court to abide the event : eee 
 Wade v. Simeon, 13 M. & W. 64Y. 
 
8.56.] 
 
 PROCEEDINGS UPON NON-APPEARANCE. 
 
 65 
 
 S6. (m) In case of such non-appearance where the Writ 4"-l'u *''*(. 
 of Summons has not been indorsed in the special form herein- sospeciaUy 
 before provided, and in case the Plaintiff files the Writ of 
 Summons, and an affidavit of personal service thereof, or in 
 case of service on a corporation, files an affidavit of service in 
 the manner in this Act authorized for service on corporations, 
 or files the Writ of Summons and a Judge's Order for leave 
 to proceed under the provisions of this Act, (?;) such PlaintifiF Declaration, 
 may file a declaration (w') indorsed with a notice to plead in 
 eight days, (x) and in default of a Plea m ay sign ju dgment signing 
 by default at the expiration of the time to plead so in- •''^'^snien . 
 dorsed. (y) 19 Vic. c. 43, s. 61. 
 
 (n) Taken from Eng Stat. 15 & 16 Vic. cap. 76, s. 28. Founded upon the first 
 report of the Common Law Commissioners, section 15. Not retrospective : Good- 
 llffc V. Keaves, 8 Ex. 134; Cuff v. Sproule, 3 U. C. L. J. 12. 
 
 {S\ See sections 16, 17, and notes thereto. 
 
 (w) Plaintiff filing a declaration under this section should observe the provi- 
 sions of R. G. pr. 20 as to particulars of demand. Of course if the writ of summons 
 be specially indorsed pursuant to section 15, such particulars will be unnecessary. 
 
 (ar) The notice to plead hero mentioned is substituted for a demand of plea 
 wiiich by section 92 of this Act is declared to be unnecessary. Where plaintiiF 
 having served his declaration and a demand of plea under the old practice, and 
 having signed judgment for want of a plea before this act came into force, applied 
 to be allowed to proceed under this section, his application was refused. And, 
 per Burns, J., " You must take a rule to compute under the old practice. The 
 61st section refers specially to writs issued under the new act, and declarations 
 wiiich should be indorsed with a notice to plead, informing the defendant fully 
 of his liability in case of neglect:" The Queen v. Hunter, 2 U. C. L. J. 183. The 
 declaration and notice to plead under this enactment should be served as well as 
 filed, unless otherwise ordei'ed by the court or a judge. " Service as well as filing 
 is evidently contemplated by this section, though not specially mentioned :" 
 Wallace v. Frazer, 2 U. C. L. J. 185, per Richards, J. ; also The Queen v. Hunter, 
 2 U. C. L. J. 183 ; see also R. G. pr. 132. But it is not a valid objection to an in- 
 terlocutory judgment that the copy of declaration filed was not endorsed with 
 the notice to plead : Corrigan v. Doyle, 4 Prac. R. 238. 
 
 {]i) Apparently the filing of a declaratiorx under this section would have the 
 effect of delaying plaintiff in his proceedings, but such may not really be the 
 result to the extent supposed. If plaintiff sign judgment ever so promptly under 
 the preceding section, still he will be obliged to wait the e xpiration o f eight days 
 from the last day for appearance before issuing an execution, it plaintiif sign 
 judgment under this section execution may be issued forthwith. But before he 
 can be entitled to judgment he must delay eight days after filing declaration so as 
 to allow defendant, if disposed, to plead. In either proceeding the time is nearly 
 equal. The former perhaps, upon the whole, is the most expeditious. Judgment 
 under the preceding section is, properly speaking, signed " in default of appear- 
 ance. ' Under this section it will be signed " in default of plea." In either case 
 it would seem that the judgment after default may be signed without any notice 
 to defendant: see Ooodliffe v. Maves, 8 Ex. 134. 
 
 6 
 
66 
 
 ■■' i 
 
 Execution. 
 
 Costs. 
 
 THE COMMON LAW PROCEDURE ACT. [SS. 57, 58. 
 
 S7, (z) In case the cause of action mentioned in the 
 declaration is for any of the claims which might have been 
 inserted in the special indorsement on the Writ of Sum- 
 mons, (a) and in the event of no plea being filed and served, 
 the Judgment shall be final , and execution may issue for an 
 amount not exceeding the amount Tndorscd on the Writ of 
 Summons with interest and costs ; (b) but in such case the 
 Plaintiff shall not be entitled to more costs than if he had 
 made such special indorsement and signed judgment upon 
 non-appearance, (c) 19 Vic. c. 43, s. 61 . 
 
 t58. (d) All the proceedings which are mentioned in any 
 
 At what 
 
 time ooitaiu Writ of Summons or Capias, or notice or warning thereto or 
 
 pro(!ecilings _ . . _ ■*._ .. ___ 
 
 niiiy 1)0 
 taken if de- 
 feiiiliiut do 
 not appear. 
 
 thereon, issued, made or given by authority of this Act, may, 
 (in default of a Defendant's appearance or putting in special 
 bail) be had and taken at the expiration of ten days from the 
 service or execution thereof, (e) whatever day the last of sucb 
 ten days may be and whether in term or vacation ; (/) but if 
 Holy-days, the last of the ten days be Sunday, Christmas Day or Good 
 
 Friday, then the following day, or 
 
 the following 
 
 Monday 
 
 Founded upon the first 
 
 («) Taken from Eng. Stat. 15 <fe 16 Vic. cap. 16, s. 28. 
 report of the Common Law Commissioners, section 15. 
 
 (a) As to which see section 15 and notes thereto. 
 
 (b) "And costs." This does not mean costs indorsed on the writ, but costs of 
 the cause to be taxed by the master. 
 
 (c) This is a penalty upon plaintiffs attorney for neglecting^ specially to indorse 
 the writ in cases in which the same ought to be done. It is rigiit to observe that 
 the proviso allowing defendant to come in and defend (to be found in section 55) 
 has not been repeated in the section under consideration. 
 
 (d) Taken from Eng. Stat. 15 A 16 Vic. cap. %, s. 32. Substantially the same 
 as former Prov, Stat. 12 Vic. cap. 63, s. 26, which was adopted from Eug. Stat, 
 2 Wm. IV. cap. 39, ss. 11 and 16. 
 
 (e) Defendant is by the writ commanded to appear " within ten days" after 
 eervice, " inclusive of the day of such service" (Sch. A. No. ] ). As to the com- 
 putation of time see Fano v. Cohen, 1 H. B. 9. The proceedings are prospective; 
 Hughes et al v. Lumley et al, 4 El. &, B. 358. 
 
 (/) Formerly writs of first process were made returnable in term. In some 
 cases no proceedings could be effectually had on a writ of summons returnable 
 within four days of the end of any term until the beginning of the ensuing term. 
 Great and unnecessary delay was thereby created. To remedy it Stat. 2 Wm. 
 IV. cap. 39, 8. 11 (which was precisely tne same as the above provision) wa^ 
 
SS. 59, GO.] PROCEEDINGS WHERE SOME DEFENDANTS APPEAR. 67 
 
 when Christmas Day falls on a Saturday, shall be considered 
 as the last of such ten days, {g) 19 Vic. c. 43, s. 65. 
 
 59. CO If such Writ be served or executed on any day Long 
 between the first day of July and the twenty-first day of ^*'^'' 
 August, special bail may be put in by the Defendant on bail- 
 able process, or appearance may be entered by the Defendant 
 on process not bailable, at the expiration of such ten days, (i) 
 19 Vic. c. 43, s. 65. 
 
 00. (/) In any action brought against two or more Defen- rroccedings 
 dants when the Writ of Summons has been indorsed in the tiicX'fen- 
 special form hereinbefore provided, (Ji) if one or more of such nmf^tiJers*'^ 
 Defendants only appear and another or others of them do not wrlt'belng 
 appear, the Plaintiff may sign Judgment against such Defen- iijorsed. 
 dant or Defendants only as have not a^,peared, (/) and before 
 declaration against the other Defendant or Defendants, may 
 issue execution upon such Judgment, in which case he shall 
 be taken to have abandoned his action against the Defendant 
 or Defendants who have appeared ; (m) or the Plaintiff may, 
 before such execution, declare against such Def<'ud!int or 
 
 ((/) The old rule was different. For many purposes the return day of the writ 
 iniglit be ou Sunday or any otlior day : see Fatio v. Coken, 1 H. Bl. 9. Tiie pro- 
 vision licrc enacted is the same in principle as R. G, pr. 166. 
 
 (A) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s, 32. 
 
 (i) Al the crpiration of such ten days, i. e., ten days from the service or execu- 
 tion of tlie writ. But still the precise meaning of this section when talcen in 
 connection with other parts of the C. L. P. Act, is far from being clear. Defen- 
 dant by tiio writ is commanded to appear " within ten days" after service ; but 
 may appear "at any time before judgment:" section 51, It can neither bo the 
 intention of the legislature to restrict defendant to an appearance witliin ten days 
 or to any period after the expiration of that time. The object of the enactment 
 appears to be to declare that special bail may be put in or an appearance entered 
 at any time during the long vacation. 
 
 (j) Taken from Eng. Stat. 15 <fe 16 Vic. cap. 1&, s, 33. 
 
 {k) i. e. by section 15 of this act. 
 
 (/) Form of sv 1i judgment, see Scli. A. No. Y, bis. 
 
 (m) Two modes of procedure are enacted by this section, and it in for the 
 plaintiff to elect between them. If ho sign judgment under the first part of the 
 enactment, his judgment will be final as against defendants who have not ap- 
 peared, and against whom he may issue execution without further dela}'. But if 
 lie adopt this course, he must abandon his action against the remaining defen- 
 dants wlio have appeared : see Morgan v. Edwards et al, 6 Taunt. 898; Ilnnnay v. 
 SmUh ct al, 3 T. R. 662. The question of costs then becomes a consideration. 
 TiiQ plaintiff as against defendants who have not appeared and against whom 
 judgment is signed for default of appearance is clearly entitled to costs as much 
 

 '•■>K 
 
 G8 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 60. 
 
 Defendants as have appeared, stating by way of suggestion 
 the Judgment obtained against the other Defendant or Defen- 
 dants who have not appeared, in which case the Judgment so 
 obtained against the Defendant or Defendants who have not 
 appeared, shall operate and take effect in like manner as a 
 Judgment by default obtained before the commencement of | 
 this Act against one or more of several Defendants in an 
 action of debt, (n) 19 Vic. c. 43, s. G6. 
 
 as if be had obtained a verdict: see section 55. It is equally clear that plaintiff I 
 abandoiiinij his action against some defendants will be required to pay them [ 
 their costs. 
 
 (n) If i)laintiff, instead of proceeding under the first part of this section an 
 pointed out in the previous note, elect to proceed under this latter part of the ( 
 section, his judgment obtained against defendants who have not appeared, wiF 
 bo in effect interlocutory rather than final. What may be the result? Thijj 
 section only a])plies to cases where the writ is specially indorsed. The writ I 
 can only bo so indorsed when the action is brought upon a contract express orl 
 iniplic'd : section 15. The contract whether express or implied, is taken to kl 
 entire, and plaintiff proceeding upon it against all the defendants must as nrulil 
 recover against all or none : Morgmi t. Edwanh ctal, 6 Taunt. 398. If he fail upo« I 
 the plea of one he loses the benefit that he might otherwise derive under the frill 
 part of tliis enactment against defendants who have not appeared : lb. Besides,li!i 
 may be held to lose all right to costs of the cause : lb. And having signed jiitl 
 ment against one or more of several defendants, he is not in a position at the triall 
 to ask for a nonsuit ; a verdict must, if any one defendant succeed on his j)lea«l 
 the action, be given to all the defendants: ilannnyw. Smithctal, 3 T.R. 662; H'l/frrl 
 V. Got/ton et al, 1 Burr. 338 ; Harris v. Butterlcy et al, Cowp. 483 ; Sed qu. see /J/wr/i/ifl 
 V. Donlan et al, 5 B. & C. lYS ; Stmrt v. Rogers et al, 4 M. <fe W. 64!); CommerdiX 
 Bank v. Hughes et al, 4 U.C.Q.TB. 1 67. The rule as regards nonsuit would be ditf^I 
 rent if one of several defendants was in fact unable to contract {i.e. an inftint, ma\ 
 ried woman, idiot, ttc.) In this case it would be absurd for any purpose to IwUl 
 that the contract was joint and entire : see Boyle v. Wcbstn et al, 21 L.J. Q.B. 20il 
 Then plaintiff has just this choice, either to bo satisfied with his judgment ugaititl 
 euch defendants as have not appeared, or if dissatisfied therewith to procwill 
 against all the defendants, including those who have appeared, and run the riskl 
 of losing whatever advantages he has gained by his judgment : see Eliot v. il/orwl 
 7 C. & P. 334, per Coleridge, J. It would seem that even after a declaratioil 
 under the latter part of this section if plaintiff repent of his course he ma}-, umtel 
 section 68 of this act, apply at any time before trial to strike out the names of«iil 
 defendants excepting those who did not appear, and against whom he has signell 
 judgment. He may then issue execution with as much effect as if he had, inilitj 
 first instance elected to abandon his suit against all defendants who had appeareil 
 Indeed the late cases have gone further. In one case where in an action up»t| 
 contract against two defendants, A. and B., of whom the former sufl'ered jn^J 
 ment by default, and the latter pleaded " never indebted," and at the trial i 
 appeared that A., against whom judgment by default was signed, was not at i 
 liable, while B. who pleaded was solely liable. The judge, upon applicatjoi 
 allowed A.'s name to be struck out of the record and directed a verdict agaiii* 
 defendant B. The court confirmed the decision of the judge : Greaves v. ^«" 
 fries et al, 4 El. <fe B. 851. If the name of a defendant against whom judgment)! 
 default is signed be struck out, the judgment is also thereby struck out: Jb- 8ilj 
 jtwr Campbell, C. J. 
 
61.] 
 
 SERVICE OP PAPERS. 
 
 69 
 
 s 
 
 Tried 
 
 61. The service of all papers and proceedings subsequent rrococdinp 
 ♦0 the service of the Writ, shall be made upon the Defendant «" 'i ""i^o 
 
 l" ' , ,. , , . , Wlielicu Wilt 
 
 or his Attorney, according to the established practice, unless msufs, &o. 
 special provision is otherwise made in this act, (o) and if the 
 Attorney of either party do not reside or have not a duly 
 authorized agent (p) residing in the county wherein the 
 action has been commenced, then service may be made upon 
 the Attorney wherever he resides, or upon his duly authorized papeM^&c, 
 agent in Toronto, (q') or if such Attorney have no duly 
 authorized agent there, then service may be made by leaving 
 a copy of the papers for him (?•) in the office where the action 
 was commenced, marked on the outside as copies left for such 
 Attorney, (s) 19 Vic. c. 43, s. 9. 
 
 (o) See Houghton elalv. Hmhon, 1 Prac. R. 160. Burns, J., speaking of the 
 pvovi.'sioiis of the Testutum Writ Act 8 Vic. cap. 36, s. 2 (now repealed) is 
 reported nt page 160, as follows: " The provision of the statute is only for the 
 service of papers upon the defendant or his attorney. It would seem not to apply 
 to service upon the plaintiff's attorney, * * » and it may be said in such 
 c.isus that the defendant must serve his papers upon the plaintiffs attorney, 
 whertrer he mat) renide." Such is precisely the enactment of the legislature in the 
 subsequent part of this section, as applied to either party, whose attorney does 
 not reside, or has not a duly authorized agent within the county iu which the 
 action was commenced. 
 
 (/<) This contemplates, as applied to outer counties, the appointment of a 
 speciiil agent by the defendant's attorney. The agency at Toronto may be looked 
 upon ns a general agency, but the agency in outer counties is confined to actions 
 coiuinenced in the several counties in which the agents may be appointed : see 
 Smith V. Roe, 1 U. C. L. J. N.S. 154. There is no rule making it imperative for 
 n practitioner to appoint agents for the general transaction of agency business in 
 outer counties. But as regards the appointment of an agent in Toronto, the rules 
 in force are very decided. The old rule of M. T. 4 Geo. IV. (Draper's Rules 2) 
 ailiuiltcd the appointment of an agent in outer counties, but such were considered 
 special agents : see remarks of Burns, J., at the conclusion of his judgment in 
 Ilowjhton ct al v. Hmbon, 1 Prac. R. 160. Papers may by arrangement between 
 tlie parties be served by mail, and the paper mailed will in such case be entered 
 at the risk of the attorney to whom sent: Eobson v. Arbnthnott, 10 U.C. L.J. 186. 
 
 (y) See R. G. pr. 137. 
 
 ir) As the papers may be left for Mm, it is presumed that he (the attorney), 
 upon demand, would be entitled to receive them at the hanils of the clerk. This 
 feature is new in our practice. The old practice was to put up the papers in the 
 crown office, whence they were seldom if ever taken. 
 
 (s) Service of declaration on defendant after he appeared, by attorney, was 
 held to be irregular : liyan et al v. Leonard, 3 O. S. SO*?. It is irregular to serve 
 papers b}^ delivering them to a clerk, at a distance from the attorney's residence 
 or place of business: 2\ffanq v. BuHen, 5 O. S. 137. Service of a notice on Good 
 Friday is good service: Clarke v. Fuller, 2 U. C. Q.B. 99. Declaration served on 
 an attorney who had not appeared, irregular : Dohie v. McFarlane, 2 0. S. 286. 
 In tliis case tiie attorney when served did not deny that he was acting for defen- 
 dant, and the court in consequence, though they set aside the proceedings with- 
 
70 
 
 Hisnnmer 
 not to lie 
 Iil('ad<!<l in 
 ahatemciit, 
 but to 1)0 
 amciuled at 
 costs of 
 plnintiir tip- 
 on Judge's 
 Bunimuiis. 
 
 THE COMMON LAW PROCEDURE ACT. [S8. 62, 63. 
 
 MISNOMER AND JOINDER OF PARTIES TO ACTIONS. 
 
 63. (0 No plea in abatement for misnomer shall be 
 allowed in any personal action, but in cases of misnomer, the 
 Defendant may, upon a Judge's summons founded on an affi- 
 davit of the right name, cauKC the declaration to be amended 
 at the costs of the Plaintiff, by inserting the right name; («) 
 and in case such summons be discharged, the Judge may 
 order the party applying therefor, to pay the costs of the 
 application. («;) 7 Wm. IV. c. 3, s. 8. 
 
 63. (w) The Court or a Judge may at any time before 
 
 out costs, intimated that upon a proper application they would make the attorney 
 pay tlieni . lb. Service of a notice of assessment on an attorney who had been 
 m the habit of accept. ng service for defendant, good: liuHei/ge v. I'hompnon, 
 
 1 Prac. R. 275. Where declaration was served before it was filed, defendant, who 
 allowed interlocutory judgment to bo signed and notice of assessment given, was 
 held to be too late to object: Proctor v. Yonng, H. T. 4 Vic. MS. R. <fe II. Digest, 
 " Irregularity," 15. Service of a notice of assessment by throwing it over defen- 
 dant's fence to defendant's son, who refused to have anything to do with it, irre- 
 gular : McQ%iin v. Benjamin, 1 Cham. R. 142. If one of two defendants appear 
 by attorney, it is irregular to serve papers for both on that attorney: Unffy, 
 McLean et al, 5 0. S. 69. Notice of action — Proof of service by bailiff: Garilcnet 
 V. Burwell, Tay. U.C. R. 64 ; Byrnes v. Wild et al, 1 U.C. Q.B. 104. Notice of trial 
 — time of service: see section 201. Summons for attachment on sheriff — ])roof of 
 service: Hilton etalv. Macdonell et al, 1 Cham. 11. 207. Contradictory affidavits; 
 Harper v. Branton, 1 Prac. R. 267. Services of all rules, orders, and notices, 
 must be made before seven o'clock at night: R. G. pr. 135. 
 
 (t) Taken from our old statute 7 Wm. IV. cap. S, s. 8, Avhich was substantially 
 the same as Eng. Stat. 3 dr 4 Wm. IV. cap. 42, s. 11. 
 
 (?*) If either plaintiff or defendant be misnamed defendants course, is as directed 
 here to apply to amend ♦he declaration of plaintiffs costs : see Lindxan v. Welh, 
 
 3 Bing. N. C. 777 ; Rush v. Kennedy, 7 Dowl. P. C. 199; Murphy v. Bunt et al, 
 
 2 U. C. Q. B. 284. And the application ought to be made within the time allowed 
 for pleading : Kitchen v. Brooks, 6 M. <fe W. 522. 
 
 {v) " May order," Ac. The costs are entirely in the discretion of the judge: 
 see Con. Stat. U. C. cap. 2, s. 18, sub-s 2. 
 
 (w) The following sections are founded upon the first report of the Common 
 Law Commissioners, section 19, and will be found in effect to conduce largely to 
 the administration of substantial justice. To understand completely the nature 
 of the changes made in the law, it will be proper to state shortly the old law. 
 This may be done almost in the words of the Commissioners. 
 
 First. As to actions ex contractu. The oinission of a party as plaintiff who 
 ought to be joined or tho joinder of a party who ought not to be joined was fatal; 
 see Jones v. Smith, 1 Ex. 831 ; Agado v. Forbes et al, 14 Moore, P. C. 160 ; Chanler 
 V. Leese et al, 4 M. <& W. 295. So i\\Q joinder of a person as defendant who ought 
 not to be joined was likewise fatal : see Jiobson v. Boyle et al, 3 Kl. & B. 396 ; Wickent 
 V. Steel, 2 C. B. N.S. 488. Whilst the omission of a party as defendant who ought 
 to be joined could only be taken advantage of by a plea in abatement : ]iiee v. 
 Shute, 5 Burr. 2613; CrtlliuY. C<Uvert, 14 M. & W. 11; JoU tt al v. Curzon, 
 
 4 C. B. 249. 
 
s. 63.] 
 
 NON-JOINDEB OR MIS-JOINDER OP PLAINTIFFS. 
 
 71 
 
 the trial of a cause, (a-) order that any person or persons not Court mny, 
 joined as Plaintiff or Plaintifis in such cause, shall bo so i-nHts, order 
 joined, or that any person or persons originally joined as not joined as 
 Plaintiff or Plaintiffs shall be struck out from such cause, (a) l}'h"m^' 
 if it appears to such Court or Judge that injustice will not be any'jmrty 
 
 Second. A8 to actions ex delicto. The joinder of a party who ought not to be n 
 plaintiff was fatal ; "whilst the omission of a party who ought to be a co-plaintiff 
 could only be taken advantage of by a plea in abatement : see Addison v. Overend, 
 6 T. K. 766; Broadbent v. Ledward, 11 A. <fe E. 209; Phillips et at v. Clartgett, 
 10 M. <fe W. 102. In such actions the joinder of persons who were not liable as 
 defauknh only entitled them to an acquittal : see Govett v. Itadnidge et al, 3 East, 
 62; Brelherton et al v. Wood, 3 B. A B. 54; Pozzi v. S/iipton et al, 8 A. A E. 963 ; 
 Morrow v. Belcher et at, 4 B. «fe C. 704. And the omission of persons jointly liable 
 was of no consequence : see Sutton v. Clarke, 6 Taunt. 29 ; Regina v. Brown, 7 El. 
 & B. 767. 
 
 So far 08 the law is here stated with respect to the joinder of parties it still 
 remains; but the consequences of mistake or error are not so disastrous as here 
 described. The proper parties to sue or be sued in an action either of contract 
 or of tort must, as heretofore, be determined upon by the particular circumstances 
 of the case and the due application of the existing laws that regulate the joinder 
 of parties to an action. But if plaintiff's attorney mistake the number of parties 
 to be joined either as plaintiff or defendant, the consequences of his mistake will 
 now be less likely to be fatal than formerly : see BeUingham et al v. Clarke, 1 B. 
 A S. 332. Powers of amendment to be exercised in a liberal spirit: see Parry v. 
 Fairhurift et al, 2 C. M. & R. 196, »er Alderson, B. ; Sainsburyv. Matthews, 4 M. «fe 
 \V. 347, per I'arke, B. ; Wardv, Pearson, 5 M. <fe W. 18, j»er Parke, B. ; Evans v. 
 Fryer, 10 A. <fe E. 615, per Williams, J. ; Pacific Steam Navigation Co. v. Lewis, 10 JI. 
 <fe W. 792. ;7e/- Pollock, C. B. ; Smith v. Knowelden, 2 M »fe G. 603, ;?(?»• Tindal, C. J., 
 will go far to render substantial justice paramount to mere technicality, and so 
 advance the remedy in a manner co-extensive at least with the mischief intended 
 to be prevented. Statutes giving the power of amendment are most salutary 
 remedial statutes, and ought to receive a liberal or at all events a fair construc- 
 tion : Greaves v. Humfries et al, 4 El. & B. 852. per Campbell, C. J. The non-joinder 
 or nu.«-joinder of plaintiffs or defendants in any civil action may be remedied 
 upon proper application to the court or a judge, to be made either before trial or 
 at the trial, under the provisions of the enactment which here follows. If the 
 amendment be either granted or refused at nisi prins, the party dissatisfied with 
 the decision of the judge, cannot, it seems, appeal to the court in banc, or apply 
 to that court for a review of the judge's decision, under section 222 of this act : 
 see Rohon v. Doyle et al, 3 El. «fe B 395. The only remedy in such case for an 
 amendment thought to be improperly made or refused is to apply to the full court 
 for a new trial. 
 
 The section under consideration is adopted from Eng. Stat. 15 (fe 16 Vic. cap. 
 76, 8. 34. It applies to the non-joinder or m/.s-joinder of plaintiffs in actions both 
 upon contract and for tort. The amendment, if desirable, must be applied for and 
 made before trial 
 
 (a;) Court or judge : see note w to section 48. Amendment at the trial may be 
 made under and pursuant to section 65. 
 
 [i) See Collins v. Johnson, 16 C. B. 588. Does not authorize the striking out 
 of all plaintiffs and substituting entirely now plaintiffs : Robinson v. Bell, 9 U, C. 
 
'V 'J' 
 
 is^ 
 
 it ' ( «. 
 
 
 '}t&M 
 
 72 
 
 orlRlnally 
 Jollied to ho 
 struck out, 
 btjforo trial. 
 
 Pliiintiflrs 
 addi'il Muli- 
 j«(.'t to tlio 
 sninu liabi- 
 lity as 
 oriKiiial 
 plalntitrs. 
 
 THE COMMrN LAW PROCEDURE ACT. [S. 64, 65. 
 
 done by such amendment, (h) and that the person or persons 
 to be added as aforesaid, consent cither in person or by writ- 
 ing under his or their hands to be so joined, (c) or that the 
 person or persons to bo struck out as aforesaid, were origi- 
 nally introduced without his or their consent, or that such 
 person or persons consent in manner aforesaid to be struck 
 out; and the amendment shall be made upon such terms as 
 to the amendment of the pleadin{»s if any, postponement of 
 the trial, and otherwise, (<0 as the Court or Judge niHking 
 the amendment thinks proper, (c) 19 Vic. c. 43, s. G7. 
 
 64:t (g) When any such amendment is made, the liability 
 of any person or persons added as co-PlaintiflF or co-Plaintiffs 
 shall, subject to any terms imposed as aforesaid, be the same 
 as if such person or persons had been originally joined in the 
 cause. (A) 19 Vic. c. 43, s G7. 
 
 G*S. (0 In case it appears in any action at the trial or 
 assessment of damages therein, (_;') that there has been a iiiis- 
 
 (b) Tliis ia a vngiie expression and yet it is difTiciilt to imngino a better, or one 
 more in keeping with tlie spirit nnii intent of the net. It is incumbent upon the 
 jud}?e to whom npplicntion is made, before acceding to the application, to look 
 well to the circumstances of the case as nft'eeting the rights and liabilities of both 
 parties to the suit: see Cooke v. Strafford, lo M. & W. a87, per Ilolfe, B. 
 
 (c) A judgment recovered against one of several joint debtors is a good pVa in 
 bar in an action against another of them on the joint liability : Kiiiff el al v. Iloare, 
 13 M. <fe W. 494. 
 
 (rf) The court or judge has a discretion as to the costs: Wall v. Lyon, 1 Dowl. 
 P. C. 714. And may himself fix the amount of costs : Collins v. Aaron, 6 Dowl. 
 P. C. 42,3. 
 
 (<>) The court above will rarely interfere with the discretion of a judge exer- 
 cised in chambers in a case within his jurisdiction : see Tadinrni v. Wood, '.'. A. & 
 E. loll. Applications to the court above for a review of the judge's decision 
 when allowable should be made during the term next after the decision : see 
 Orchards. Moxc;/, 21 L.J. Ex. 79 n: Meredith v. OitteM, 21 L.J. Q.B. 273; CoUim 
 et at V. Johnson, 16 C. B. 588 ; see further note w to section 48. 
 
 iff) Taken from Eng. Stat. 15 A 16 Vic. cap. 76, s. 34, 
 
 (h) The object of this provision is for all purposes to give effect to the amend- 
 ment made. The amendment when made must be in accordance with the estab- 
 lished practice as respects parties to actions: see note w to section 63. 
 
 (?) Taken from Eng. Stat. 15 «fe 16 "Vic. cap. 76, s. 35. This enactment is 
 intended to apply to cases of now-joinder or wiisjoinder of plaintiffs. The amend- 
 ment when allowable is to be made at the trial. 
 
 (,/ ) The application should it seems not only be made at the trial, but be/on 
 verdict: see Drashier v. Jackson, 8 Dowl. P. C. 784. And at all events not after 
 that: Cowbum v. Wearincf, 9 Ex. 207: see also Jones v. Hutchinson, 10 C. B. 515; 
 Jiobson v. Doyle et al, 3 El. & B. 396 ; Wickens V. Steel ct al, 2 C. B. N.S. 488. 
 
05.] 
 
 MIS-JOINDER OR NON-JOINDER OP PLAINTIFFS. 
 
 joinder of Plaintiffs, or that some person or persons not joined 
 as riaintiff or riaintiffd ought to have been so joined, (k) and 
 the Defendant has not at or before the time of pleading, 
 civcn notice in writing that ho objects to Buch non-joinder, 
 specifying therein the name or names of such person or per- 
 sons, (/) and if it appears to the Court or Judge or other 
 officer presiding at the trial, (m) that such mis-joinder or 
 non-joinder was not for the purpose of obtaining an undue 
 advantage, and that injustice will not be done by such amend- 
 ment, (h) and that the person or persons to bo added as 
 aforesaid, consent either in person or by writing under his or 
 their hands to be so joined, or that the person or persons to 
 be struck out as aforesaid were originally intioduced without 
 his or their consent, or that such person or persons consent 
 in manner aforesaid to be so struck out, (o) such mis-joinder 
 or non-joinder may be amended as a variance at the trial or 
 assessment by such Court or Judge, or other officer presiding 
 at the trial or assessment, in like manner as to the mode of 
 amendment and proceedings consequent thereon, or as near 
 thereto aa the circumstances of the case will admit, as in the 
 case of the amendment of variances in the sections of this 
 Act, numbered two hundred and sixteen to two hundred and 
 twenty-two. (p) 
 
 73 
 
 Proceedings 
 t'(ir iiiiii'IkI- 
 iiii'iit it' tbu 
 iiiis-jniiidpr 
 of I'laiiititra; 
 nr all oiiiia- 
 Hidii tojdin 
 flidsi' wild 
 (iiiKlit to be 
 
 Jnlnrd 
 
 a|i|ii'ai' at 
 tilt' trial, thu 
 di'fciidaiit 
 iKit liaviiij^ 
 ){ivt'ii iiiitice 
 of objeelioii. 
 
 19 Vic. c. 43, s. G8. 
 
 (I) See note w to section 03. 
 
 (/) ri'doeedings in case this notice be given, see section 67. 
 
 (m) ). e. Judge or county judge or crown counsel acting for and in the absence 
 of the judge of assize. 
 
 (;/) See note b, section 63. 
 
 (o) Amendment at nisi prim by adding name of a partner as plnintiflf: Williams 
 V, Grores, 1 I*\ «fe F. 34 1 . But no power to strike out names of all plaintiffs and 
 add new plaintiffs: liobimou v. £cU, 9 U. C. C. P. 21. 
 
 ip) Tlie amendment should be liberally made : Smith v. Knowelden, 2 M. <fe G. 
 565, per Maule, J, By consent an amendment was allowed, though applied for 
 after verdict, but before it was recorded : Roberts v. Sncll, 1 M. & G. 577. The 
 court cannot control the discretion of the judge in refusing the amendment: Doe 
 d. Poole V. Erringlon, 1 A. tfe E. 750 ; Jenkins v Phillips, 9 C. & P. 768, joer Cole- 
 ridge, J. ; Whilwill V. Scheer, 8 A. & E. 309, per Patteson, J. ; also Lucas v. Beale, 
 10 C. 15. 739. Nor will the court interfere where an amendment has been allowed 
 to bo made, unless upon clear proof that the judge was wrong: Suinsbury v. 
 Math'VH, 4 M. &. \V. 347, per Lord Abinger, 0. B. In all cases if both parties 
 consent, larger powers may be exercised either by the judge at nisi prius, or by 
 the court above: Parr;/ v. Fairhurst el al, 2 C M. tfe H. 190, noticed by Patteson, 
 J., in Guest v. Ehocs, 5 A. A, E. 126 ; see also Roberts v. Ulnell, 1 M. & G. 577; 
 lirashier v. Jackson, 6 M. A W. 568, per Lord Abinger, C, B. 
 
f '\ -'ll 
 
 74 
 
 LInl.illly 
 of pcrncms 
 orfiii'<'il to 
 bit jiiiiii'il iiM 
 Iiluiiitiirii. 
 
 THE COMMON LAW PROCEDURE ACT. [sS. GO, G7. 
 
 00. (r) Every such amendment sliall bo mndo upon such 
 terms as the Court or Judge, or other prcsidinj: officer by 
 whom the amendment is made, thinks proper; (j<) and when 
 any such amendment has been made, the liability of any 
 person who has been added as co-Plaintiff shall, subject to 
 any terms imposed as aforesaid, bo the same as if cu''h person 
 had been originally joined in the action. (/) 19 Vic. c. 43, 
 8. 68. 
 
 OT. (m) In case such notice has been given, (d) or where 
 notice iins u plea in abatement may be pleaded, in case a plea in abate- 
 ily ti'iu<iVivii- ment of non-joinder of a person or persons as co-Plaintiff has 
 dant.ornon. ^^^^ pleaded by the Defendant, {w) the Plaintiff, before plea 
 
 :•» 
 
 (r) Taken from Eng. Stat, 16 A 16 Vic. cnp. 76, b. 35. 
 
 {») AVith respect to the " terms," it is difficult to Iny clown any distinct rule, 
 as encli enso must in some degree depend upon its own circumf-tnnees; yet it may 
 be advanced ns a safe proposition, tiiat the court will not allow any additional 
 expense to be thrown upon the opposite party, by reason of any atnendinont; 
 Smith V. llraudram, 2 M. & G. 250, per Tindal, C. J. The costs of the nniendnient 
 must rest in the discretion of the court or the judge to whom a))plicnti()n for 
 amendment is made : see Tmnliiison v. Bollard, 4 Q.B. (142 ; see also Parks v. Edfie, 
 \ C & M. 429 ; Oued v. EIwck, 5 A. ife E. 118. The judge it seems may himself 
 determine the a'«oi«(< of costs : lb. If the court dirt'er from him as to the pro- 
 priety of the amount, still that will not avail as against his order : lb. Where 
 an amendment was allowed at the trial, subject to a motion for a non-suit, the 
 court held that the defendant was entitled to the costs of moving to enter the 
 same, as they were incident to the amendment : Smith v. Brandram, 9 Dowl. P.C, 
 430. If the amendment bo granted upon payment of costs, the payment of cosU 
 would it is presumed bo a condition precedent to tho amendment: see I.cviiw 
 Drew, 6 D. & L. 307; Gore Dintrict Mutual Fire Ins. Co. v. II ebder, 10 U. C. L.J, 
 190; Lavii v. Baker, 14 U. C. C. P. 336; Brega v. Hodgson, 4 Prac. R. 47. 
 
 (<) The same in effect aa section 64. 
 
 (m) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 86. 
 
 (v) J. e. The notice mentioned in section 65. 
 
 (w) A plea in abatement is one which sliows some ground for abating or quash- 
 ing the writ and declaration. It does not contain an answer to the cause of 
 action, but shows that the plaintiff has committed some informality, and points 
 out how he ought to have proceeded ; in technical language, " gives him a better writ:" 
 Smith, Action at Law, 10 ed. 81. The right of the defendant to plead a plea of abate- 
 ment, cannot be better explained than by drawing a distinction between pleas in 
 bar and pleas in abatement. Whenever the subject matter of the plea or defence 
 is that the plaintiff cannot maintain any action at ariy time, whether present or 
 future, in respect of the supposed cause of action, such defence may be pleaded in 
 bar. But matter which merely defeats the present proceeding, and does not show 
 that the plaintiff is forever concluded, may in general be pleaded in abatement, 
 Pleas in abatement are of several kinds, of which non-joinder of a co-plaintiff is 
 one. It is the only one to which reference is made by the section under con- 
 sideration. It would appear that a plea in abatement of tho coverture of defen- 
 
 ^AM 
 
 
s. G8.] 
 
 JOINDER OF TOO MANY DEFENDANTS. 
 
 75 
 
 or replication upon payment of the costs only of and occa- .1';iM'i;r iw 
 sioneJ by amending, (,r) may, without any order, amend the "I'ltLimnt. 
 writ and other proceedings by adding the name of the person 
 named in such notice or plea in abatement, {y) and proceed 
 in the action without any further appearance, and in case of 
 such amendment after plea, the Defendant may plead de 
 novo. (:) 19 Vic. c. 43, s. 09. 
 
 08- (") In the case of the joinder of too many Defon- 
 dants (h) in any action or (c) contract, (d) the Court or a 
 
 (Innt, is" not n, |ili'a of " non-Joindpr" witliin tlic incnning of tli'w section : ./one* 
 V. Snvih, '^ M. it W. fi'JC. It' n ^vlfo BiiccL'i'd on Bucli a pleiv, she niny otio out 
 oxi'culion in licr own name : W'oitlci/ v. Jiai/nor, Doiijj. C;i7. Aa to when nnd in 
 wiiat niiinner jtlens in obntcmcnt for non-joinilor of plaitititFs, niny or nuiy not be 
 jiicadiil : see Jinbiuson v. Marchant, 7 Q. J}. 1)18; Gin/afdv. Sultm, i\ C. B. 163; 
 Mi>r(jnn v. (Jidjitl it at, 'A Ex. 612; thanthr ci ux. v. Lindncij tt ux. 4 I). & L. ii.'lO. 
 Tlu'se plcim nro diacoiirnged by the courts, nnd four days only are allowed for 
 jilciuiiii;; tliem : Jii/lnnd v. Wonnwald, 5 Dowl. P. C. 581. The section of tliis net 
 wliicli allows eiglit days for pleading, njiplies only to pleas in har: section 01. 
 Of the four days allowed for pleas in abatement, the first lias been held to be 
 imlusive, and the last exclusive: see Jii/land v. Wonmoald, 6 Dowl. I'.C. 581. But 
 if tlie fourth day be a Sunday, a plea by defendant on the following Monday is 
 Eufticifnt: sec Lee v. Carlton, 3 T. R. 6l:i ; also see U. G. pr. 1()6. It seems that 
 6i!Cti(in 70 of thisact, nnd the otiiei ■ 'lactments relative to pleading in general, are 
 npiilicable to pleas in abatement. The plea must be verified by affidavit: ^[ay- 
 hiiri/y, Miidic, 5 C. B. 283. Unless an extension of time be granted for the aflida- 
 vit: JohuHon v. Popplewell, 2 Tyr. 715. The afliilavit must be full and precise : 
 Oh.hIow v. Booth, Str. 7ii5. And if affidavit iiisuflicicnt the plea may be treated as 
 tiiuillitv: Il)-ai/v. Ha'kr, 2 Moore, 2i:!; d'urrelt v. Jhopci; 1 liowl. P.O. 29; 
 L,v,ll v. Wilker, 8 M. & W. 299; see also Whcatleij v. Oolveii, 9 Dowl. P. C. 1019; 
 iMmbc V. Simjthe, 15 M. «fe W. 433; NcwUm ei til v." Stewart, 4 D. A L. 89 ; White v, 
 QaHoijiif. ct at, 3 Ex. 3(5. The affidavit must bo accurate in the names of the par- 
 tits: Poole y. Pembrei/, 1 Dowl. P.C. 093; Fletcher v. Lechmere, 2 Dowl. N.S. 848. 
 
 (:() The payment of costs under this provision will be, beyond doubt, a condi- 
 tion preci'dent to the amendment : Levy v. Drew, 5 D. & L. 307 ; Waller v. Joy, 
 If) M. (fe W. GO; see also Johnson v. Sparrow, 1 U. C. Q.B. 3915 ; Guss v. Cocleuqh, 
 E. T. ,3 Vic. MS. II. <fe II. Dig. " Now Trial," ix. 1 ; Wunn v. Palmer, E. T 3 Vic. 
 MS. 11. it II. Dig. "New Trial," ix. 8 ; Thompson v. Sewell, 4 0. S. 16 ; Jireve.'i v. 
 J/wn, T. T. 4 dc 5 Vic. .l/>' V ' H. Di-. "New Trial." ix. 6. The facilities 
 given by this act for amc .dments both before and at the trial, will have the effect 
 in a great measiir ' ' j; away with pleas in abatement. 
 
 (?/) It is as oessary under is as under the preceding sections, that a 
 
 consent Iq wri i the party to be ..Jded, should bo filed : see 11. G. pr. 6. 
 
 (2) Under anu jursuant (o section 117 of this act (which see). 
 
 (a) Taken from Eng St :. 15 A 16 Vic. cap. 76, s. 37. 
 (4) See note w to section 63. 
 (f) " Or" should be " on." 
 
 (il) This enactment is for manifest reasons restricted to actions on contract. 
 There is no necessity for the eztensioa of the remedies here enacted to actions for 
 

 
 ;:» r i 
 
 t^' ki 
 
 m- 
 
 76 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 68. 
 
 daiits 
 disoovcri'il 
 before tiiiil 
 in aetioii on 
 contract. 
 
 Mis-joimior Judge, (e) if it appears that injustice will not be done there> 
 ^y^ (/) "^^y* (9) ^^ ^^y ti'"® before trial or as.sessment of 
 damages, (/*) order the name or names of one or more of such 
 Defendants to be struck out, (t) and the amendment shall be 
 made upon such terras as the Court or Judge thinks proper; (j) 
 
 And at trial, and in case it appears at the trial of any action on con- 
 tract, (/<;) that there has been a mis-joinder of Defendants, 
 
 torts ; for in such actions plaintiff can at any time br/ore trial enter a nolle pro- 
 sequi. If ho fail to do so, defondants sued but not liable, may notwithstandino;, be 
 acquitted at the trial ; but the acquittal of ojie or more defendants in an aciion 01 
 tort, is not, as in actions of contract, a discharge of all. See note w to section 63, 
 
 (e) See note w to section 48. 
 
 (/) See note b to section 63. 
 
 {g) " May," permissive: Con. Stat. U. C. cap. 2, s. 18, sub-s. 2. 
 
 (A) The application may perhaps bo made at the trial. But when deferred ti" 
 the trial, the amendment can only be made as a variance. In view of thi.s, it is 
 preferable for plaintiff to make application at an earlier stage of the cause, and la 
 doing so avail himself of the first part of this enactment. The right to amend a | 
 mis-joinder after the trial is questiomble : Wicfcens v. Steele et at, 2 C. B. X.S. 488, 
 It has been decided that one defendant in ejectment is not entitled at the trial to 
 have his name struck cut on disclaiming all right to possession, in order to be 
 called as a witness for his co-defendants : Grogan v. Adair ct al, 14 U.C. Q.B. 419, 
 Qu. It is not necessary under this section for the party making application before 
 trial, to file a consent similar to that mentioned in section 63 : see Barr'M t, 
 Hamilton ct al, 17 U. C. Q. B. 443. 
 
 (i) The court for the purpose of saving the Statute of Limitations, allowed a 
 plaintiff to amend his declaration and all subsequent procf^dings, by striking out 
 the name of one of two defendants, the other being at liberty if so advised, to 
 plead the non-joinder in abatement; and also, if necessary, to plead de noiu 
 This was done, although it appeared that an action had been formerly brought 
 for some portion of the same subject mutter, against tlie same defendants, in 
 which defendants obtained a verdict by reason of the plaintiff having failed to 
 establish a joint liability : Cowburn v. Wearitig et al, 9 Ex. 207. The court h 
 banc confirmed the decision, and thought it reasonable that plaintiff sliould be 
 allowed before trial to make the amendment and to try the question wlietiiir 
 ho could establish a case against one defendant alone (taking the risk of a [ilta 
 in abatement) although he might believe the contract to be a j tint one: A 
 per cur. An amendment similar to the above applied for before trial under the 
 old practice and before the Common Law ^ rocedure Act was allowed, defen- 
 dant being at liberty to plead de novo: Palmer v. Beale et al, 9 Dowl. P. C. 529. 
 So where the application was made even nfter a trial and a nonsuit: Cravfimh. 
 Cocks et al, 6 Ex. 287. Further as to amendments at trial by striking out names 
 of co-defendants : seo Cooper v. Sander.s, 1 F. «fe F. 13. 
 
 (j ) The costs of course are entirely in the discretion of the court or the jute j 
 to whom the npiilication is made. But it is apprehended that plaintiff will 
 seldom bo allowed to atrike out any defendants except upon payment of costs: 
 see Cowburn v. Wearing et al, 9 Ex. 2()7 ; see also an important case upon tbis | 
 point, Jackson et al v. A'unn et al, 4 Q. B. 209, 
 
 (i) The amendment here intended must if made bo made at the trial. It i* 
 not competent for plaintiff, who there refuses it, afterwards to apply for it to tbe 
 
s. 09.] 
 
 NON-JOINDER OP CO-CONTRACTORS. 
 
 77 
 
 such mis-joinder may be amended as a variance at the trial 
 in like manner as the mis-joinder of Plaintiffs has been here- 
 inbefore directed to be amended, (I) and upon such terms as 
 the Court or Judge, or other presiding officer by whom such 
 amendment is made, thinks proper, (m) 19 Vic. c. 43, 8. 70. 
 
 69. («) In i ny action on contract (o) where the non- if tiic non- 
 joinder of any person as co-Defendant has been pleaded in 'def'.'iKiants 
 
 court i?i. banc : Jtohxon v. Doi/le et al, 3 El. &, B. 396. The amendment if it could 
 be lit all made by the court in banc would be made pursuant to section 222 ; but 
 mmlih that section docs not apply to the case of a mis-joinder of i)laiiitiifs or 
 defendants; lb. ; but see Wickcns v. Steel et al, 2 i;. B. N.S. 488. Tlie act evidently 
 refers to the case where a defendant has been erroneously joined, and not to a 
 case where the defendant has been joined not by mistake but for the purpose of 
 tryirif; liis liability : lb. 
 
 In an action of contract against two defendants, A. and B., the latter suffered 
 jiul^incnt by default. The former pleaded " never indebted," upon which issue 
 was joiiifd. On the trial, it appeared by the evidence that B. the defendant who 
 pleailcd " never indebted" was solely liable. A. the defendant who had allowed 
 jiiilgMient to go by default, not being a contracting party, B.'s counsel claimed a 
 ndiisuit. The judge ordered the record to be amended, by striking out the name 
 of tlie d'jfendant A., and directed a verdict against B., subject to leave to move to 
 enter a nonsuit if the court should think that the amendment ought not to have 
 been made. Held, per cur., that the amendment was properlv made : Greaves v. 
 Jhwfiics et al, 4 El. cfe B. 851. 
 
 A. sued B. C. D. E. F. G. and II. in an action on contract. H. suffered judg- 
 ment by default, and the action failed as against F. and G. Held that it was 
 conipeterit to the judge at nisi prnis to amend the record by striking out the 
 names of F. and G. : Johnson v. Goslett et al, 18 C. B. 728. In a later case at nisi 
 priu.1, Pollock, C. B., refused to allow the plaintiff to amend by striking out the 
 name of "no of two defendants, ^hero the contract upon which the action was 
 broiii^lit as proved to have been made by one only and not by both defendants. 
 Pollock, C. B., " I will take no such step in a case where I think the parties might 
 have known what their position was before bringing the action. 1 think the 
 power of a judge to strike out a name should not be exercised in cases where per- 
 sons enter into a sort of speculation by putting dow n a number of names, and then, 
 when they find it does not succeed, ask the judge to strike them out :" Svnniomls 
 V. Ihuihcs et al, 29 Law Times, 6; see also iVickens v. Steel et al, 1 C. B. N.S. 488. 
 
 (J) i. e. By section 65 of this act. 
 
 ("i) The name of one of two defendants was struck out of the record on the 
 tprnw of plaintiff paying the costs of such defendants. Plaintitf obtained a verdict 
 ngaiiist tlie remaining defendants. Jldd that the defendant whoso name was 
 fitriick out was entitled to a moiety of the joint costs of both defendants, nltiiough 
 botli appeared and pleaded jointly by the same attorney: licdway v. Webber etal, 
 13C. B. N.S. 254, 
 
 (») Taken from Eng. Stnt. 15 ife 16 Vic. cap. 76, s. 38. This section is applied 
 solely to the case of non-joinder of co-defendants. With this i'.\ception it is similar 
 to section 67. 
 
 (o) The section is conuned in its operation to actions on contract. The reason 
 of tlie restriction will be found explained in note d to the preceding section (68.) 
 But notwithstanding the restrictions to " actions on contract," it is apprehended 
 tliut the section will include actions which, though in form ex delicto, are not 
 

 eli ''^¥ 
 
 . ^ .:sl 
 
 78 
 
 be pleaded 
 in abate- 
 ment in 
 such action, 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 69, 
 
 abatement, Q)) the Plaintiff may, without any order, amend 
 the Writ of Summons and the declaration by adding the 
 name of the person mentioned in such plea in abatement as a 
 joint contractor, (q) and serve the amended Writ upon the 
 person or persons so named in such plea in abatement, and 
 proceed against the original Defendant or Defendants and the 
 person so named in such plea in abatement ; (r) but the date 
 of such amendment (s) shall, as between the person so named 
 in such plea of abatement and the Plaintiff, be considered for 
 all purposes as the commencement of the action, (t) 19 Vic. 
 0. 43, s. 71. 
 
 maintainable without referring to some contract between the parties and laying a 
 previous ground of action by showing such contract. 
 
 {}>) The non-joitider of a joint contractor as a co-defendant can only be taken 
 advantage of by a plea in abatement : see note w to section 63. 
 
 (q) The plea in abatement for non-joinder of a co-defendant must give " a better 
 writ," i. e. state the names and places of residence of parties not joined. It is for 
 plaintiff then either, to amend or to commence a new action against the persons 
 whose names arc so given if in other respects the plea be legal and formal. He 
 may either amend under this section, or he may drop his action and commence 
 a new one under the old practice. A plaintiff upon a plea of abatement for non- 
 joinder of a co-defendant may enter a cassetur breve without any order obtained 
 for the purpose. This he is allowed to do without at the time paying any costs: 
 see Grccnh'ill v. Shcpjjiierd, 12 Mod. 145; Allen v. J/axey, Barnes, 120 ; Pocklingtmi 
 V. Peck, 1 Str. 638. Neither party is entitled to costs on a pica in abatement, 
 and it was even held that plaintiff was not entitled to ask for them on setting 
 aside such a plea for irregularity : PooJe v. Pcmbrey et ux, 1 Dowl. P.O. ()93. Sed. qu, 
 see White v. Oascoipie, 6 D. «t L. 225. But the costs of tlie amendments if not 
 paid at tiie time of the nmendment, will abide the event of the action. The prac- 
 tice as t;; allowing amendments of writs by adding fresh parties when there is no 
 plea in abatement is unsettled in Englond. The Queen's Bench and E.vchcquer 
 differ, the former peruiitting the amendment, the latter refusing it. In a case in 
 chambers, the practice of the Queen's Bench was held to be of doubtful propriety, 
 and the judge in chambers instead of allowing the amendment, referred the appli- 
 cant to the full court: Gibson \. Varlcy et al, 'I'J L. T. Kep. 234. 
 
 (>•) The consequence as to costs, &c., may bo ascertained upon reference to 
 section 71. 
 
 (s) Qu, In what manner is the date of the amendment to be proved if disputed ? 
 There is no provision for a record of the amendment to be kept by the clerk of 
 process or other oHiuer. Power is given to plaintiff to amend his writ without 
 any order. It is not stated that it shall be necessary to reseal the writ. It is 
 simply enacted that plaintiff " may" amend the summons by adding the name of 
 the person named in the plea of abatement. It is not enacted either that the 
 amendment shall be made by the proper ofhcer, or that the prcecipe upon which 
 the writ issued shall be amended by such officer. A rule of court is needed to 
 eupply those omissions. Possibly in the absence of a rule upon the subject it 
 may be held that the amended declaration will be the best if not the only reliable 
 index to " the date of the amendment." 
 
 (<) This provision ie manifestly necessary for the protection of whatever rights 
 defendants newly joined may be possessed. Not having had any knowledge of pre- 
 
[8. C9. 
 
 s. 70.] 
 
 NON-JOINDER OP JOINT OBLIGOR OR CONTRACTOR. 
 
 79 
 
 70. (m) Iq any action brought against any joint obligor Non-joinder 
 or ecu tractor, the action shall not abate (v) nor the Plaintiff no ground to 
 
 ^ ' ... abate suit. 
 
 be required to amend (loj on account of any other joint 
 obligor or contractor not having been made a Defendant, (a?) 
 unlesss the party pleading such non-joinder (y) avers in his 
 plea that such joint obligor or contractor (z) is living (a) 
 within the limits of Upper Canada, (U) and states the 
 
 ispiitcd? 
 clerk of 
 without 
 ;, It is 
 name of 
 that tlie 
 311 wliicii 
 eedcd to 
 ubject it 
 reliable 
 
 cr rights 
 ;o of pre- 
 
 vious prooeedin;T3_ it would be unjust in any manner to hold them bound by Such 
 ptocc'L'diiiijs. If the writ first issued, when issued, could, as against these defen- 
 dants, bo held to be " the commencement of the action," then they might, without 
 any knowledge of the process and without having been served with it, bo pre- 
 vented from availing themselves of the Statute of Limitations or other like statut- 
 able defence. If then, as the practice now stands, the right of action should bo 
 barred by effluxion of time at a period between the issue of the writ and its sub- 
 sequent amendment by the addition of co-defendants, it appears clear that the 
 Statute of Limitations would under such circumstances be a good defence. The 
 jiersoii added may stay all further proceedings against himself by payment of the 
 debt and of the costs of the writ within four days of service on him: Measom v. 
 MounkaHlc cl al, 1 F. & F. 721. 
 
 («) Substantially a re-enactment of Stat. 59 Geo. III. cap. 25, s. 1. 
 
 ()') The judgment for defendant on a plea in abatement is quod breve or narratio 
 casnelicr : see Sellon Pr. 27^. This is in exact accordance with the prayer of the 
 pleu, "the defendant prays judgment of the said writ and declaration, and that 
 the same may bo qnanhcd," <tc. The plea must pray judgment both of the writ 
 and declaration: Davics v. Thomson, 14 M. & >V. 161; ]VhitUng\. Dcs Anges, 
 3 0. B. 910. 
 
 (w) Under preceding section. 
 
 (r) Pleas in abatement for non-joinder of a co-defendant must be full, clear and 
 certain: see Heap et al v. Livingston ct al, 11 M. tfc W. 896 ; Bleaklcy et al v. Jay, 
 i;i M. (fe W. 4(1-1. If the plea be bad to one count of a declaration containing 
 several counts, it is bad as to all : rhilUpnet al v. Claggett, 10 M. & W. 102. Formal 
 delects in such a plea have been held open to objection without a special demurrer. 
 The statutes of Elizabeth and Anne respecting special demurrers have been held 
 nut to apply to such pleas : see E»dailc et al v. Lund, 12 M. <fe W. 613, j^er Parke, B. 
 
 {ij) A plea of covertui'C is not, it seems, a plea of " non-joinder" within the 
 meaning of this section : see Jones v. Smith, 3 M it W. 526. 
 
 (,:) It will be insufficient to describe the parties not joined by initial letters of 
 their christian names : Hastings v. Champion ct al, M. T. 3 Vie. MS. 11. & 11. Dig. 
 Abatement, 4. 8ed qu. If defendant cannot by any means ascertain the true 
 names, would it not be sufficient for him to describe the parties as best he could? 
 Tlie plea must mention all the co-contractors not joined : Abbot v. Smith, 2 W. Bl. 
 947; Godson v. Good, 6 Taunt. 587; Hill \. White etal, 8 Dowl. P.C. 13; Crdlin v. 
 Bvook, UM. (few. 11. 
 
 (n) It does not appear to be necessary that the co-contractor should be actually 
 and literally " living within tlie limits of Upper Canada," at the time of plea 
 pleaiied, if his domicile or residence bo then within this province. A temporary 
 absence on a tour for health or other similar cause is not a living without this 
 province: see Lambe v. Smytlte, 3 D. *fe L. 712. 
 
 ('') Defendant is bound in his plea to disclose a joint contract. In this pro- 
 vince it has been held that he must do this, though upon the face of his plea it 
 
>ll 'rtrid 
 
 80 THE COMMON LAW PROCEDURE ACT. [S. 70. 
 
 place of his residence, (c) nor unless an affidavit of the 
 
 appear that some of the joint contractors are without the jurisdiction of the court: 
 McKnight v. Scott, M. T. 3 Vic. MS. R. & H. Dig. Abatement, 6 ; upheld in (Jor- 
 bitt V. Calvin et al, 4 U. C. Q. B. 123. It was remarked by Robinson, C. J., in the 
 latter case, that a defendant under such circumstances is not to be understood by 
 his plea as pleading the non-joinder of the persons without the jurisdiction : 76. 
 The plea in Calvin v. Cook et al, upheld by the court, was to the effect that tliR 
 supposed promises were made jointly by defendant with one Hiram Cook and 
 one Timothy II. Dunn — that Cook was living and resident within the jurisdiction 
 of the court — and that Dunn at the time the action was brought was and still is 
 a resident of Lower Canada, out of the jurisdiction of the court. See a similar 
 plea and authorities cited in support of it in note a to Newton et al v. Stewart, 4 D. 
 «fe L. 89. But in England the law conflicts with that laid down by our courts 
 upon this point, though the statute law in each country is much alike. In tlie 
 first place, it has been held in England that in the case of joint contractors, wiieie 
 one is out of the jurisdiction of the court, the contract thereby becomes joint and 
 several : see Henry v. Ooldney, 15 M. <fe W. 497, per Alderson, B. In the second 
 place, as a sequence to this reasoning, it has been held that no plea in abatement 
 can be put upon the record for non-joinder of co-contractors where some at the 
 time of plea pleaded are without the jurisdiction of the court : JM cl al v. Curzon, 
 4 C. B. 249 ; see also Maybnry v. Mudie, 5 C. B. 283 ; s. c. 5 D. <fe L. 292. These 
 cases being more recent than ours, may have the effect of shaking the authority 
 of ours, at least to some extent. To apply ourselves to the reasoning of the En^'- 
 lish cases we find it said by Williams, J,, in Joll et al v. Ctirzon, 4 C.B. 249, " that 
 the Eng. Stat. 3 & 4 Wm. IV. cap. 42, s. 8, which requires the plea to state that 
 the co-contractor, the non-joinder of whom is complained of, is resident within the 
 jurisdiction of the court, ousts the party of his plea in abatement if all the co-con- 
 tractors are not within the jurisdiction of the court." This was the manner in which 
 the case was argued, and la the reasoning upon which the decision depends. 
 
 (c) The place as well as residence must now be stated in the plea instead of in 
 the affidavit as formerly. The plea must state the true j)l8ce and abode of the 
 party whose non-joinder is objected to: J/a)/6?<ry v. J/wc^ic, 5C.B. 291,/)crMaule,J. 
 Whether it does so or not is a matter which formerly might be controverted and 
 determined upon motion to set aside the plea : lb. If the plea be false, it is 
 apprehended that it may still be set aside on motion. But the meaning of the 
 word " place" itself as used in this act is from its vagueness, open to much uncer- 
 tainty. It is extremely doubtful whether in this province the like precision must 
 be observed as in England. Our 7 Wm. IV. cap. 3, s. 6, required the place to 
 be stated with " convenient certainty." These too are the words of the Eng. Stat, 
 3 <fe 4 Wm. IV. cap. 42, s. 8. What then, is meant by stating a place with con- 
 venient certainty ? The object of the requirement is unquestionably that the 
 plaintiff -nay know not only who the co-contractors are, but also the place of their 
 residence, in order that he may be enabled to serve process upon them : see jV«f- 
 ton et al v. Stewart, 4 D, til L. 92, per Wightman, J. Now there can be no reason 
 for holding greater preciseness to be necessary for that purpose under this section 
 than under section 12, which requires a writ of summons to be indorsed with the 
 nama and "place of abode" of the attorney suing out the same. In this latter 
 case it is presumed that the street or house will not be requisite. Between the 
 exprest:'>n " place of abode" and " place of residence" there can be no difference. 
 A case has arisen in England under the section which corresponds to the one j 
 here annotated, and is worthy of mention. Two defendants whose non-joinder j 
 was pleaded, were stated to be resident, the one at " No. 20, Gower Street, Bed- j 
 ford Square," the other " High Street, Canterbury." The court on affidavit that 
 inquiries were made at " these places," and that no such persons were there 
 living, set aside both the plea and affidavit, although the defendant showed that 
 
 S. 70.] NON 
 
 truth of such pi 
 
 the mistakes had 1 
 nt " No. 22" insten 
 toiy and other slm 
 party was well kn 
 the one named : iV 
 in this province, \ 
 those of England, 
 place pf residence" 
 but not joined. 
 
 The actual resid 
 statement of it th 
 The object of the 
 able to serve procei 
 v. S/cwarf, 4 D. <fe I 
 phtintiff unless the 
 Mudie, 5 I). & L. 36! 
 it; is a nullity : Brei 
 A statement of the 
 D. it L. 360. Th 
 Lmhe v. Smythc, 3 : 
 taken to mean dwel 
 wife and family resii 
 a hoase and occasioi 
 place, for his residi 
 homo is where his 
 There is not howev< 
 "place of residence.' 
 its circumstances: 2 
 110; see also The Q 
 
 (e) Nor wiless an „ 
 very general provis 
 necessary in the affi 
 that the affidavit for 
 be in a very genert 
 made it necessary to 
 in substance and in 
 Muiiden v. The Duke 
 of abatement seems t 
 tory plea shall be re( 
 plea do by afl5davit , 
 that the affidavit mu 
 of " This plea is tru, 
 If the affidavit be eiti 
 be sot aside on motic 
 It seems, bo made eit 
 1 Chit. R. 58 note a. 
 plaintiff may treat tl 
 V. Popplewell, 2 C. <fe 
 when made must be 
 would be the most cc 
 the plea without ent 
 t le cau,se, the affidav 
 tljat it may bo suffici 
 
 6 
 
 
S. 70] NON-JOINDER OP JOINT OBLIGOR OR CONTRACTOR. 81 
 
 truth of sucb plea be filed therewith, (e) 19 Vic. c. 43, s. 73, 
 
 tlie mistakes had been made accidentally, and that the one party was to be found 
 ot " No. 22" instead of " No. 20," and that his name was in the Post Office Direc- 
 tory and other similar works of reference as residing at No. 22, and that the other 
 party was well known in Canterbury, and that he lived in a street adjoining to 
 tiie one named : Newton et al v. Stewart, 4 D. & L. 89. It '.3 scarcely possible that 
 in this province, where the circumstances of the country are so different from 
 those of England, that so much particularity will bu .leeded in describing " the 
 place of residence" of a contractor " living within the limits of Upper Canada," 
 but not joined. 
 
 The actual residence must be stated. It is not sufficient to give the best 
 statement of it that "an be obtained: Wlieathy y. Oolney, 9 Dowl. P. C. 1010, 
 Tlie object of the pro- ision is that plaintiff may without delay or difficulty bo 
 able to serve process upon the parties whose non-joinder is pleaded : Newton et al 
 v. Skwart, 4 P. <fe L. 92, per Wightman, J. Timt benefit would not be secured to 
 plaintiff unless the information stated in the plea should bo correct: Mayhury v. 
 Mmlie, 5 I). & L. 362, /)er Maulo, J. If the plea do not state the place of residence 
 it is a nullity : Brewster v. Davy, H. T. 2 Vic. MS. R. & H. Dig., Abatement, 3. 
 A statement of the place of business would not be sufficient : Mayhury v. Mndie, 
 D. it L. 360. The word residence is understood to mean home or domicile : 
 Limhe v. Smythc, 3 D. <fe L. 712. The expression " place of residence" might bo 
 taken to mean dwelling-house. A man's dwellinff-house is prima fade where his 
 wife and family reside, and if he has a family dwelling in one place and he occupy 
 a iiouse and occasionally sleep in another, he will not be a resident in the latter 
 place, for his residence is his domicile, and his domicile is his home, and his 
 lionie is where his family reside : Eex v. Tlie Duke of Richmond, 6 T. R. 660. 
 There is not however any strict or definite rule for ascertaining what is a man's 
 " place of residence." It is a question to be determined in each case according to 
 its circumstances: The Queen v. The Mayor of Exeter, Wescomb's case, L. R. 4 Q.B. 
 110; see also The Queen t. T/ie Mayor of Exettr, Dipstak's case, L. R. 4 Q.B. 114. 
 
 (e) Nor unless an affidavit of the truth of such plea be filed therewith. This is a 
 very general provision. The specific allegations as to residence, «fec., formerly 
 necessary in the affidavit, must now be stated in the plea. It is apprehended 
 timt the affidavit for the future if annexed to the plea, for annexed it may be, will 
 be in a very general form. The aflidavit in use before the enactment, which 
 made it necessary to state residence, <fec., was to the effect that the plea was " true 
 in substance and in fact ;" see Mayhury v. Mudie, 5 D. <fe L. 363, per Maule, J. ; 
 Muiiden v, 77te Duke of Brunswick, 4 C. B. 321, The origin of verification of pleas 
 of abatement seems to be Stat. 4 Anne, cop. 16, s, 11, It is as follows: "No dila- 
 tory plea shall be received in any court of record, unless the party offering such 
 plea do by affidavit prove the truth thereof," <fec. It was held under this statute 
 that the affidavit must prove the fact of the truth, " This is a true plea," instead 
 of " This plea is true," was held to bo insufficient : Onslow v. Booth, 2 Str. 7C5. 
 If the affidavit be either false or insufficient, it is presumed that the plea may still 
 be set aside on motion : see Mayhury v, Mudie, 6 D. <fe L. 360. The aflidavit may, 
 it seems, bo made either by defendant or a third party: see King v. Lord Turner, 
 1 Chit. R. 58 note a. And if sworn before declaration filed, it would appear that 
 plaintiff may treat the plea as a nullity ; Bower v. Kemp, 1 C. «fc J. 287 ; Johnson 
 V. Popplewell, 2 C. <k J. 644 ; but seo Lang v. Comber, 4 East. 348. The affidavit 
 when made must be filed with the plea. The annexing of the affidavit to the plea 
 would be the most convenient mode, and in such case could verify the contents of 
 tlie plea without entering into details. Besides, if annexed to a plea intitled in 
 tlie cause, the affidavit need not be so Intitled, An aflidavit is intitled in order 
 that it may bo sufficiently certain ip what cause it is made to admit, if necessary, 
 
 G 
 
82 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 71. 
 
 Costs of 
 sucli I ilea in 
 abateuieut. 
 
 Judgment 
 an vegavils 
 dt'lViidaiits 
 liable 1)1' 
 not liable 
 respectively. 
 
 71. (/) In all cases after a plea in abatement and amend- 
 ment, (y) as aforesaid, if it appears upon the trial of the action 
 th:H the person or persons so named in such plea in abate- 
 ment was or were jointly liable with the original Defendant 
 or Defendants, the original Defendant or Defendants shall be 
 entitled as against the Plaintiff to the costs of such plea ia 
 abatement and amendment ; (Ji) but if at such trial it appears 
 that the original Defendant or any of the original Defendants 
 is or are liable, but that one or more of the persons named 
 in such plea in abatement is or arc not liable as a contracting 
 party or parties, the Plaintiff shall nevertheless be entitled to 
 Judgment against the Defendant or Defendants who appear 
 to be liable, (t) and every Defendant who is not so lir.blo 
 shall have Judgment and shall be entitled to his r .As as 
 
 an indictment for perjury. But if an affidavit refer to the " annexed plea," and 
 the annexed plea is " intitled in tlie cause," and verba relata vidcntur in esse, there- 
 fore it amounts to the same thing as if the affidavit itself were intitled in the 
 cause, and an indictment for perjury would lie on such an atHdavit : Prince ct a( 
 V. Nicholson, 5 Taunt. 33Y, per lleath, J. ; liichards et al v. Sctree, ? Price, '201, 
 2)er Thomson, C. B. ; Foole v. Pcmhrey et ux. 1 Dowl. P. C. 094. It is I'.sual not- 
 withstanding and perhaps safer to intitle the affidavit though annexed. But if 
 tlie aftidavit be intitled at all it nmst be correctly intitled ; Poole v. Pemhreii d 
 ux, 1 Dowl. P. C. 69.3 ; Phillips v. Hutchinson et al, 3 Dowl. P. C. 20 ; Clurh v. 
 Martin, lb. 222 ; Shrimpton v. Carter, lb. 648 ; Bland v. Dax, 15 L. J. N.S. Q. D. 1 ; 
 Fletcher v. Lechmcre, 2 Dowl. N. S. 848. The affidavit ought to state in the body 
 of it the place of residence of the party not joined : Petch ct al v. Dnggan, 1 Clmm. 
 R. 141. No reference to a plea annexed will aid an affidavit if otlierwise incor- 
 rectly intitled : Poole v. Pembrcij ct nx. 1 Dowl. P. C. 693. If the plea be filed 
 without an affidavit, or with an affidavit so insufficient as to amount to no affida- 
 vit, plaintiff may treat the plea as a nullity and sign judgment. But it would 
 seem that an affidavit though sworn before defendant's attorney, is not so far void 
 as to entitle plaintiff to sign judgment, however warranted he might be in moving 
 to set the plea aside : Horsfall v. Malthemnan, 3 M. & S. 153. 
 
 (/) Taken from Eng. Stat. 15 <fe 16 Vic. cap. 76, s. ^9. Substantially the same 
 as our Stat. 7 "Wm. IV. cap. 3, s. 1, which is a transcript of Eng. Stat. 3 it 1 
 ■\Vm. IV. cap, 42, s. 10, 
 
 {g) i. e. Under section 69. 
 
 ill) Section 69 is silent as to the costs of the amendment. It is presumed tba' 
 they will, generally, be iu abeyance until trial and verdict under this section. 
 They will abide the event, and as such form part of the costs of the cause. 
 
 (j) This provision is intended to prevent the effect of that rule which decides 
 that a plaintiff in an action of contract failing as to one defendant fails as to nil 
 the defendants sued. The joinder of a co-defendant b}' plaintiff under and in 
 consequence of a plea of non-joinder by defendant is not so much the act of the 
 plaintiff as of the original defendant. Tlierefore it is only reasonable to declare 
 that plaintifl' shall not be made to suffer from the act of others. 
 
 if'.-- ■■ 
 
 Is'- 'ri-:-.»: ■ 
 
s. 72.] 
 
 JOINT CONTRACT GIVEN IN EVIDENCE. 
 
 83 
 
 against the Plaintiff, (7) but the Plaintiff shall be allowed 
 such costs, togethe'' with the other costs on the plea in abate- 
 ment and amendment, as costs in the cause against the 
 oi'i"inal Defendant or Defendants who so pleaded in abate- 
 ment the non-joinder of such person ; (7o) but any such 
 Defendant who so pleaded in abatement, may, on the trial, 
 adduce evidence of the liability of the Defendants named by 
 him in such plea. (I) 19 Vic. c. 43, s. 72. 
 
 72. (jn) The joint obligation, contract or promise may be 
 given in evidence against any one or more of the joint obli- 
 gors or contractors, (n) and shall have, the same force and 
 
 .Idint onii- 
 tr.ic-t, &!■., 
 lUiiy be given 
 in LviduiR'u 
 
 (,/) It is not declared in what manner defendant sliall recover those costs .'"roni 
 pliiiutiff. No doubt it would bo proper to proceed by rule and attachment in 
 I'iiso of non-payment. But the point as to whether defendant would be also enti- 
 tled to an execution as against the plaintiff is not yet decided. 
 
 {k) An action was originally brought for a debt against M. alone, who pleaded 
 tlie uon-joinder of B. «fe (x. The plaintiff amended accordingly, aud went on in 
 Ilia action against the throe. M. paid £2;jO into court, and as to the residue 
 jik'ack'd never indebted. The two others pleaded never indebted. The jury found 
 a verdict for M. that only £230 was due, but against B. & G. that "tliey were 
 jointly indebted with M. to the amount of £212. Upon this state of things the 
 uiiister allowed M. his costs against the plaintiff, but allowed the plaintiff his co.sts 
 a^^ainst B. & G. His taxation was supported on the first point, but as to the 
 second it was held that plaintiff was not entitlod to costs against B. «fe G., neither 
 under the Statute of Gloucester because he was not entitled to damages, nor under 
 the Statute of Anne as it was not a case of double pleading: Cazneau v. Morrice 
 el al, 25 L.J. Q.B. 120; see also Jiird v. Iligginson, 5 A. & E. 8.3 ; and rnrtridge v. 
 Gardner, G Ex. 621. Plaintiff before paying the costs contemplated by this enact- 
 ment, would act prudently in having defendant's bill taxed. Then liaving ob- 
 tained tiie master's allocatur of the amount, plaintiff could without ditlicidty claim 
 to have that sum allowed upon the taxation of the general costs of the cause. 
 
 [1) This provision is intended for the benefit of a defendant who pleads in abate- 
 ment the nonjoinder of a co-defendant. From the time that he files and serves 
 Ills jilea he is bound to substantiate it or pay the costs incurred by plaintiff in 
 consequence thereof. To substantiate his plea and so, if pos.sible, prevent costs, 
 it is oidy just that defendant should be allowed to prove his allegations. The 
 alleviations are in effect that certain persons not joined are with himself jointly 
 liable to tiie plaintiff. 
 
 (ill) Substantially a re-enactment of Stat. U. C. 59 Geo. III. cap. 25, s. 2. Tlie 
 object of the enactment is to carrj' out the principles involved in the jireceding 
 section. If an action be brought against one or more of several joint contractors, 
 and there be no plea in abatement setting up the non-joinder of the others, the 
 contract sued upon may, notwithstanding the non-joinder of the other co-contrac- 
 toi's, be given in evidence against such as are made defendants. The practical 
 effect of this will be to allow plaintiff to sue and recover his claim from such co- 
 contractors as may be within the jurisdiction of the court, without at all endea- 
 vouring to proceed against those who may be without the jurisdiction. 
 
 (m) For well known reasons this section is confined to actions on contract. In 
 actions for torts the non-joinder of wrong-doers is not attended with the sai.:e 
 results as in actions on contracts. See note d to section 68. 
 
Pi-; >'\ 
 
 84 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 73. 
 
 im^L^HBRBIKM 
 
 ng.iinat any 
 (in« contrac- 
 tor. 
 
 Several 
 causLH (if 
 action iriiiy 
 be joined 
 
 effect fur the recovery of Judgment thereon as if it were only 
 the obligation, contract or promise of the Defendant or Defen- 
 dants actually sued, (o) 19 Vic. c. 43, s. 74. 
 
 JOIXDEIl OF CAUSES OP ACTION. 
 
 73. Qt) Causes of action of whatever kind, provided they 
 be by and against the same parties and in the same rights, (^g) 
 may be joined (>•) in the same suit, (s) but this shall not 
 
 
 (o) Formerly it wns necessary for a plaintiff suing npon "joint contract," to 
 proceed n<^niiist nil the contractors, whether within or without the jurisdiction. 
 Those witliin tiio jurisdiction were served with process — those without were pro- 
 ceeded a<i;ainst to outlawry. The latter proceeding is now in this respect alto- 
 gether dispensed with ; but it is still necessary if all the joint-contractors be 
 within the jurisdiction of the court that all be sued : Corbett v. Calvin, 4 U. C. 
 Q. B. 12:5. If there be a non-joinder or mis-joinder of co-contractors, plaintitf 
 cannot cure his proceedings either by a nolle prosequi or nonsuit as to some of 
 the di'fendants. A nonsuit as to some is a nonsuit as to all. If plaintiff abandon 
 his suit as to some he abandons it as to all : see Commercial Bank v. Httffhes el al, 
 4 U. C. Q. B. 167, per Macaulny, J. Contra in actions for tort; see Cleland v. 
 Robinson etal,n' , C. C. P. 416. 
 
 (jj) Taken from Eng. Stat. 15 <fe 16 Vic. cap. 76, s. 41. 
 
 ((/) And in the same rights. From thid it is inferred that a plaintiff has no right 
 now more than before the passing of '-his act to join a cause of action accruing 
 to him in his individual capacity witl one accruing to him in a representative 
 character, as executor, &o. : see generally Powleif et al v. Newton, G Taunt. lH'i ; 
 A-Mff V. Ashby et al, 7 B. <fe C. 444, Webb et ux. v. Coiodell, 14 M. <fe W. 820; 
 Kilchenman v. Skeel et al, 3 Ex. 49 ; iVignell v. JIarpur, 4 Ex. 773 ; Hawn et al v. 
 Madden ct al, E. T. 2 Vic. MS. R. &. H. Dig. " Executor, Ac." ii. 1 ; Walker v. 
 Court, H. T. 6 Wm. IV. MS. lb. ii. 6 ; Davis v. DavL% T. T. 1 A 2 Vic. MS. lb. 
 ii. 6 ; Ktnff et al v. Thorn, 1 T. R. 487 ; Smith v. Barrow, 2 T. R. 476 ; Fctrie d 
 al V. Ilaunaij, 3 T. R. 669 ; Jennings v. Newman, 4 T. R. 347 : Ord v. Fcnwiek, 
 3 East, 104; Henshall v. Roberts et al, 5 East. 150; Cowell et ux. v. Watts, 6 East. 
 405; Court v. Partridge et ux, 7 Price, 691. 
 
 (?•) May be joined, d'c. This is not compulsory upon plaintiff. He is enabled 
 but not compelled to join in the same suit several causes, Ac. A plaintiff is not 
 likely to damage his claim for criminal conversation by adding a claim wliicli 
 may direct attention to the question whether he is entitled to the price of goods 
 sold : see Brockbank v. The Whitehaven Junction R. Co. 31 L. J. Ex. 349. 
 
 {s) A plaintiff has not heretofore in actions brought by him been confined to 
 one cause of action. It has always been understood that a declaration may con- 
 sist of several counts, and that each count may state a separate cause of action. 
 Thus it has been quite allowable for the first count of a declaration to be on a bill 
 of exchange, a second on a promissory note, a third on an account stated, Ac. : 
 Smith's Action-at-law, 10 ed. 77. Indeed, it has been lately allowed that several 
 causes of action might be joined in one and the same count. Thus it has been usual 
 in one count to condense two or more of the following — goods sold, work done, 
 money lent, .Tioney paid, money had and received, Ac. : Steph. PL 7 ed. 326. But 
 the rule allowing several causes to be joined in the same suit was subject to the ex- 
 press limitation, that demands only of a eimilar quality or character, i.e. of the saint 
 kind, could be joined : Jb. 325. Now the rule has been extended by the abroga- 
 tion of the limitation, and causes of action of whatever kind may be joined, pro- 
 
s. 73 ] 
 
 JOINDER OF SEVERAL CAUSES OP ACTION, 
 
 85 
 
 extend to replevin or ejectment, (^) or in the County Courts suhjcnt to 
 to causes of action which are local and arise in different Coun- diti.ms. 
 
 vidi'd tlipy bo by niul nn;ainst the snmo parties nnd in tlio same ri<jrlit3, Ac. Tlie 
 ftincniliiu't'it made is only ns to tlie joinder of causes of action. It does not flffect 
 tlio cause or gist of any single action. It ncitlier makes that a cause wiiich was 
 not one before the act, nor renders that less a cause whicli has been held to be 
 one. It does not affect the framing of declarations, except so far tiiat cacii sepa- 
 rate cause of action a separate count would seem to be desirable, and for causes 
 of action not cjusdein generis, separate accounts would seem to be indispensable. 
 If tiio counts can be stated sliortly, as in tlie forms given in Schedule B. to this 
 net, such or similar concise forms should be adopted. In cases where a plaintiff 
 could or could not before the passing of this act declare on the common counts 
 f.)i' liis cause of action, it is apprehended the law is still the same: see McKee v. 
 Ifuron Disf. Council, 1 U. C. Q.B. 368; Twld v. The Gore Bank, lb. 40; McMahon 
 v. CV»//a', lb. 110; Aitkin v. Malcolm, 2 U. C. Q. B. 134; AfcGn/linv. Caylci/, 
 lb. S(J8 ; Ducat v. Sweeney et al, M. T. 3 Vic. MS. R. & II. Dig. " Money had'and 
 received," 4; Ross et al v. Tait, II. T. 1 Wm. IV. MS. lb. "Assumpsit" i. 5 ; Miller 
 V. Mnnro, 6 0. S. 106 ; Armstrong v. Anderson et al, 4 U. C. Q, li. 113 ; Kitson v. 
 Sliort, lb. 220 ; Fisher v. Ferris, 6'U. C. Q. B. 534 ; Chapel v. Jlickcs, 2 C. A M. 214 ; 
 Spenar v. Parry, 3 A. <fe E. 331 ; Baker v. Dewey, 1 B. »t C. '704 ; Amos et al v. Tern- 
 perky, 8 M. & iV. 798 ; .^aul v. Dod et al, 2 C. B. 800 ; Lamond et al v. Davall, 9 
 Q.B.'lOSn; Fewings v. Tisdal, 1 Ex. 295 ; Middleditch v. Ellis, 2 Ex. 623; Sweetinq 
 v. Aaplin, 7 M. &, W. 165; Garrard v. Cvttrell, 10 Q. B. 679; Lewis v. Campbell, "s 
 C. r>. 541 ; De Bcrnardy v. Harding, 8 Ex. 822. Where there are two counts in a 
 declaration for distinct causes of action, and substantial damages are given upon 
 one and nominal damages upon the other, nnd the damages are entered up gene- 
 rally on the nisi prius record, parol evidence may be given to explain to what 
 extent the damages were given on each count: Preston v. Peeke, 31 L.T. Rep. 162. 
 
 (/) Itei)levin and ejectment cannot be joined together, nor can either be joined 
 with any other form of action. Where the first count of a declaration w'as in 
 replevin and the second in trespass, a summons to strike out the second count 
 was made absolute with costs: The Great Western It. Co. v. Chadwiek, 3 U.C. L.J. 
 29. Tlie remaining forms of action in common use may be Joined. Tliey are 
 assumpsit, case, covenant, debt, detinue, trespass, and trover. It may not be amiss 
 to refer to the authorities in which the boundaries between these forms of action 
 have been defined and preserved. Although no longer necessary to be strictly 
 observed, yet for many purposes the classifications and distinctions ape important 
 to be ke|)t in view. 
 
 Asmimpsit and Case — See Hoss et al v. Webster, 5 U. C. Q. B. 570; Qiiin v. School 
 I'nixlccs, 7 U. C. Q. B. 130; Woods y. Finnis ct al, 7 Ex. 303; Boorman et a! v. 
 Brown, 3 Q. B. 511; Courtenny y. Farle, 10 C. B. 73. 
 
 Asiiumpsit and Covenant — See Schlenckcr et al v. Moxei/, 3 B. ife C. 7b9 ; Gwynne 
 v. Davy et al, 1 M. «fe G. 857; Filmer v. Bnrnby, 2 Scott, N. 11. 689. 
 
 Assumpsit and Dcbt—Soc Becbe v. Sccord el a!, Tay. U C. R. 409. 
 
 As!<umpsit and Trover — See Land et al v. Woodward, 5 U. C. Q. B. 190; Orton v. 
 Bnller, 5 B. (fe Al. 652. 
 
 Case and Debt — See Mdes v. Bough, 3 Q. B. 845. 
 
 Case and Trespass — Sec Savignac v. lioome, 6 T. R. 125; Itcynolds y. Clarke, 
 1 Str. 634; Turner et al v. Hawkins et ed. \ li. & V. 472; Martinez et al v. Gerber, 
 3 M, & Vx. 88; Lear v. Caldecott, 4 Q. 15. 123 ; Fay v. Prentice et al, 1 C. B. 828; 
 Firmslone et al v. Whecky et al, 2 I). <fe L. 203. 
 
 Covenant and Debt — See Harrison v. Matthews, 2 Dowl. N. S. 318. 
 
 D(ht and Detinue — might be joined together even before the C. L. P. Act: see 
 Sniitli on Action, 76. 
 
 Trui'cr and Detinue— Mockford v. Taylor, 19 C. B. N.S. 209. 
 
86 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 74, 75. 
 
 VIjH 
 
 
 frli 
 
 
 1: ■■' ''^4 
 
 I'lli. 
 
 Court may 
 
 (irdi.T K<,'|iii- 
 lato triiil. 
 
 C'nsps wIkto 
 II hUHbaud 
 
 tics ; (//) and whero two or more of tho causes of action so 
 joined in cases in the Superior Courts are local and arise in 
 different Counties, tho venue may be laid in cither of such 
 Counties. (?<) 19 Vic. c. -i3, s. 75. 
 
 741. (v) Either of the Superior Courts or a Judge thereof, 
 or tho Judge of a County Court, (ic) may prevent the trial 
 of different causes of action together, if such trial would be 
 inexpedient, and in such case any such Court or Judge may 
 order separate records to be made up and separate trials to bo 
 had ; (.c) but nothing herein contained shall restrict or dimi- 
 nish tho obligation or right of a Plaintiff to include in one 
 action all or any of the drawers, makers, endorsers, and 
 acceptors of any Bill of Exchange or Promissory Note, (y) 
 10 Vic. c. 90, s. 9 ; 19 Vic. c. 43, s. 75. 
 
 75- (z) In any action brought by a man and his wife on 
 any cause of action (a) accruing personally to the wife, (h) in 
 
 (rt) This is necessarily tho case owing to the fiict tlint county courts, though 
 having a general jurisdiction to limited amountg in transitory actions, are yet 
 local courts and us regards locality independent of each oilier. 
 
 («) See note n to section 7. 
 
 (v) Taken from Eng. Stat. 15 & 16 Vic. cap. 70, s. 41. 
 
 {w) See note w to section 48. 
 
 {x) See Ih-ean v. Watloj, 4 F. F. 1038; Shcrratl v. Webster, 8 L. T. N.S. 254. 
 
 {y) Tills provision is new and not to be found in the Eng. Stat, from which the 
 one here annotated is adopted. It pointedly relates to our Con. Stat. U. C. cap. 
 42, 8. 23, authorizing the holder of a bill or note to sue all parties to it in one 
 action, notwithstanding their several liability, lfsever.il actions should, notwith- 
 standing tills provision, bo brought when one only would suffice, costs in one only 
 shall be taxed : Con. Slat. U. C. cap. 42, s. 35. 
 
 {z) Taken from Eng. Stat. 15 & 16 Vic. cap. 70, s. 40. Founded upon tho first 
 report of the Common Law Commissioners, latter part of section 10. The reasons 
 for tho changes there recommended and here carried out are clearly stated. The 
 report proceeds, " With respect to tho joinder of a cause of action arising to a 
 husband in his own right with one accruing to him in resi)ect of his wife, as llie 
 judgment in the event of his recovering a verdict, and tiie fund to which the 
 judgment would bo applied, would be tlie same, we sec no objection to permit the 
 joinder, in order to prevent tho necessity of bringing two actions in respect pos- 
 sibly of a cause of action arising out of the same transaction ; as for instance where 
 an injury has been done to tho wife and tho husband by the same wrongful act." 
 
 (a) On any came of action, <i'c. It seems that these words are intended to have 
 a very general operation. "-Ihj/ cause of action" applies to all causes of action, 
 whether ex. contractu or ex delicto, without distinction. 
 
 {h) Accruinct penonnlly to the wife, i. c. any cause of action accruing personally 
 to the wife. These expressions deviate widely from the provisions oifthe English 
 
3, 75.] JOINDER OF HUSBAND AND WIFE. 87 
 
 respect of wliicli they firo necessarily co-Plaintiffs, (r) the ".J|'',"i|];ji"| 
 
 ru 
 
 lltillM. 
 
 net wlunco our suction is takon. Tiio Englisli net is restricted to notions broujjlit 
 l)V huslinnd nnd wife, "for an vijuri/ done to the wife :" see nrf,'iiinent of counsel 
 ill J'l/iiinoH ct nx. V. Lucan, ] El. & B. G50, in which nr^unient tiie court niipa- 
 rently acquiesced. In fact the Inngungo used in tho Enj,'li9h net ndniits of no 
 doubt. Tiio English section is confined exchisively to netions of tort. Onvn 
 ck'ai-ly extends to actions on contract as well ns tort. The exa.uj.lo given by tiio 
 CoMiinon Law romniissioners (note 2 atite) seems to favor the restriction "iiuido 
 in the Englisii act; but tho course pursued by our legislature is evidently nioro 
 in accordance with tho sjtiril of that report, 
 
 ((•) III respeet to which thet/ are neceHmrVy co-plaint iffn. When nnd for whnt cnnses 
 must liuslmnd nnd wife be " necessarily co-plaintiffs?" Tho law upon this subject 
 conveniently <lividofi itself into two bends corresponding to the two great divi- 
 sions of actions under one or other of which every cause of nction must be found, 
 viz., actions upon contract and actions for torts. 
 
 Actions upon contract. In general tho wife cnnnot join in nny nction upon n 
 contract made diirinr/ marriage for her work and labour, goods sold, or money 
 lent bv lior during that time: Bidyood v. Way el nx, 2 W, Bl. 1230; linckJey v. Col- 
 tier, rSnlk. 114; Com. Dig. "Baron nnd Eenie," W.; Wellcr ct al v. JMrr, 2Wil8, 
 414; Cfiamhem v, Donaldson etal, 9 East. 471 ; Murphy v. Bunt ct al, 2 U. C. Q. B. 
 2St. For the husbnnd is, in cases not falling within Con. Stat. U. C. cap. 73, 
 entitled to her earnings, and they shall not survive to her but go to tho personal 
 ri'in'csentntives <>f her husbaiiu, and she could haue no property in the money lent 
 or tlie goods sold ; Abbot ct nx, v. Bloficld, Cro. Jac. fi44 ; ]Vclfcr ct al v. Baker, 2 
 Wils. tM; Bidf/ood v. ]Vay ct nx. 2 W. Bl. 12.^6; Buckley et nx. v. Collier, Cnvth, 
 2."il ; (Ji-oirhurd ct iix. v. jMrcrack, 8 Ex. 208 ; Dcnrjate ct nx, v Gardiner, 4 M. tt W. fi, 
 per Abinger, C. B. But when the wife can be considered ns the meritoriou-t cause 
 ol'iK'lioii, as if a bond or other contract uniler seal, or a jiromissory note be made 
 to licr separately or with her husband : Howell v. Maine, 3 Lev. 46."? ; Alcbcrry v. 
 !('/%, 1 Str. 229; Ankcrstcinv, Clarke ct al, 4 T, R. GIG; Co. Lit. 3.51 a ; Philiis- 
 Jiirk ct nx. v. Pbukwcll, 2 ]Sl. it S. 393 ; llarcourt ct al v. Wyman, 3 Ex. 817. Or 
 if she bestow her ])ersonal labour or skill, on curing a wound, drc. : Fountain v. 
 .S(i(7/(, 2 Sid. 128 ; Brashfordv. Buckinijham ct nx. Cro. Jac. 77; W'clhr ct ur. v. Baker, 
 2 Wils. 424 ; Bac. Abr. " Baron and Feme," K. She may be joined with her hus- 
 band, or ho may sue nlone. In general, wherever the cause of action would -vtr- 
 vice to tho wife, she and her husband ought to be joined in the action : see Caters 
 v. Madchy, 6 M. ct \V. 423. Where the wife is joined in the nction in any of these 
 cnsc'S, the declaration must distinctly declare her interest and sliow in what res- 
 poet she is the meritorious cause of action, and there can be no intendment to tliis 
 ttt'oct; Bidf/ood V. Way ct ux. 2 W. Bl. 123G ; Philliskirk etnx. y. Pbukwell, 2 M, .t S, 
 ;'.'.»3 ; ^crres ct ax. '. . i)odd, 2 B. & P. KS. 405 ; Hopkins ct nx. v. Lorian, 7 l>o\v]. I'.C. 
 360; Shnberr/ et nx. v. Cornwall, M. T. 6 Vic. MS. R. tt 11. Dig. " Arrest of .ludg- 
 nieiit," G. But after verdict everj'thing will bo intended in support of the dcela- 
 lation ; Hove et nx. v. Thompson, M. T. 6 Vic. MS. R. A II. Dig. " Arrest of .hulg- 
 incnt." 13. Even since the English Common Law Procedure Act it has been held 
 tiint a declaration by husbnnd and wife on an account stated must show that the 
 .iccount was concerning matters over which the wife had an intercut: Johnxon et nx. 
 V. Lucas, 1 El. it B. G59. 
 
 Actions for torts. Torts may be either to the person or the property personal 
 or real of a party. The wife having no legal interest in the person or property 
 of lier husband, cannot in general join with him in any nction for any injury to 
 tlieni. For injuries to the person or to the per.soiial or real property of the w'fe 
 committed before marriage when the cause of action would survive to the A\ife, 
 as a general rule she must join in the action : Milncr et al v. Jlilncs et al, 3 T. R. 
 
1 'I*: M"m_,. 
 
 88 
 
 THE COMMON LAW l'Hf»CKi)UnE ACT. 
 
 [s. T.y 
 
 husband may add tliuroto claims in his own righf, (</) nnd 
 separate actions brought iu respect of such cbiims may be 
 
 027 ; Milchimon v. Ilrwmm, 1 T. 11. a-l8 ; Com. Piff. " Biiroii nnil Fi'ino,"' V. Torts 
 nccording to their nntiiro may be iliviJod in tlio nmriner above lueiitionod — 
 
 1. Injurle8 to tlio person of tlio w!fi>. 
 ii. " to tbn j)er»0Mal |)r()p(;rty of tbo wlfoi 
 iii. " to tlie real property of the \vif«. 
 
 i. Injiirm to the person of the wife. If coininitted durhif/ coverture by buttery, 
 BlnndiT, &e,, both iiusbnnd and wile tntist join; Jio(i(/eH v. Frier, rl al. 1 1 ICust, lini ; 
 Chainhi >s V. Ihmahhoii , 1) East, 471. For words spoken of the wife not aelionabh; 
 of tlii'iiiselves but wliich occasion some special daniafire to tiie liusbaiid, lie must 
 Mi(! aioiio : llarwood et hi. v. llnrdwivk el nx. 2 Keb, 'Ml, pi. t>;! ; i'oli:in'in il uj. v. 
 Jliiiioiirl, 1 Lev. 140; livsnelel nx. v. Come, 1 Salk. 1 10; /iuldwin v. Flomcr, 'A Mod. 
 120; Sclwyn N. P. 12 cdn. 345. If loss of spoeiid service be tlie damai^e alK'fj;e(i, 
 thi' wit'e slionid not bo join(Kl. Whatever »uii;ht be the nature ef tlie wifo'ii ser- 
 vice the proHts of it would nccru<) to the husband ; Denniie tt nx. v. Gardiner, 
 4 M. it W. ft. 
 
 ii. Injitries to the personal properti/ of the wife. Wherever the cause of actioa 
 had only its inception hefore the nuirria;;e but its completion a/lerwurds, as in 
 case of trover before marriage and conversion during marriage, or of rent duo 
 before marriage and a rescue afterwards, iiusband or wife may join or nuiy sever 
 iu detinue trover or trespass; Bac. Abr. Detinue; Bui. N. P. 51!, 2 Sau?id. 47 b; 
 JilAivkhorn et ux. V. Greaves, 2 Lev. 107 ; Com. Dig. " Uaron aiul Feme," X ; AijUikj 
 ft ux. V. Whicher, 6 A. «t K. 250. Where the cause of action iuis its incei)tioii 
 ns well as completion n/lcr marriage, tlie luisbnud musf sue alone — the legal 
 interest in jiersonnlty being vested by the nuirriage in liim : Ihiekley v. Collier, 
 1 Salk. 114; Bior/ood v. Way et ux. 2 W. IJl. 12otJ; t^jxtoiier v. Brcicster, 2 C. 
 A P. 34. 
 
 iii. Injuries to real properlii of wife In real actions for the recovery of the land 
 of the wife, both Iiusband nnd wife must join : Oilill v. Tyrrell, 1 Bulst. 21 ; Com. 
 Dig. "Baron nnd Feme," V; Selwyn's N.P. 12 edn. 344. But under the old form 
 of ejectment the husband alone might bo lessor of the idaintitf; Doe d. Eliertu v. 
 Montreuil, « U.C. (JB. 515 ; Doe d. Peterson v. Cront, 5 U.C. (J.B. 135. The hus- 
 band alone may, it seems, still be plaintiff: JJohnes v. Ilenneqnn, 28 L. T. Hep. 2.). 
 S" it lias been held that an action for damages to the realty though in the pos- 
 session of the wife was properly brought iu the name of the husband ; Jo)ies v. 
 Spmce, 1 IT. C. Q. B. 307. 
 
 ((/) Claims in his oion right. This is ns general and comprehensive an exjircs 
 sion as could well be used. It includes all manner of claims, whether upon cim- 
 traet or for tort. One efl'ect of the enactment will be to do away with the difii- 
 cult y that presented itself to the court in Dengale et nx. v. Gardiner, 4 M. it W. 5. 
 Tills was an action by husband and wife for slanderous words spoken of the wile. 
 Special damage was laid for loss of service by the wife in consequence thereof. 
 Tiie co\irt held that as tlie results of the service would belong only to the husband 
 and not to the wife, ho only could sue iav such special damage. Thus it was 
 decided in effect that for two causes of action clo.sely united and arising out of 
 one and the same transaction, two. separate actions were necessary, one for the 
 slander per se, in which action both husband and wife should join ; the other for 
 the cons('i]uence of the slander in loss of service, itc, in wliich action the husband 
 alone could sue; see also liufsell et nx. v. Conic, 1 Salk. 110 ; Com. Dig. Pleader 
 2. A. 1, Both these or similar causes of action might now be joined in the same 
 action under tiie section here annotated: see Heckle v. lieijnolds, 7 C. B. N.S. 114. 
 
n. I 
 
 '5,] 
 
 rr.EADiNas. 
 
 80 
 
 ouiiHuliil.itcd, if tho Court or a Judge tliit)ks fit ; (<) but in 
 case of tlio death of cithor PlaintifT, (/) such suit shall abato 
 so far only us relates to tho causes of action if any, whiuh do 
 not survive. (7) 19 Vic. c. 43, s. 70. 
 
 LAXOL'AGE AND IdllM OF IM-KAHINdH IN riKVKflAf,, AND OTHKU 
 I'KOVISIDN.S IX l(i:«I'i;( T TIIiatKTo. (A) 
 
 (() 'Wlioro n IiusImui'I l>rfiii;;lit nn nctioii for a pergonal injury to liimself nnd 
 li'h tni(l(i by nil exiilosion, niicl lin niul Jiis wife broiiijht n sepMrato action for iiijii- 
 rii's HiHtaint'il by lior resultinji; from tlio mnw oxploHlon, tiio two notioiif^ wero 
 consi)li(iat(.'<l : J/itnutrad v. J'hwnix (Ian IJiilit A Coke Co. !J II, ct C. 745 ; see fur- 
 thrr Moi-kij V. The Midland Ji. Co. 3 F. F. 901. 
 
 {/) r. Coulrarts. If tiic hiishand mrvivc, tlioro is n nintcrinl distinction to bo 
 oli^i'i'vod rcsi)cctiii<jf chattiils real nnd vhoncs in action. Tlie bll^^l)and is I'nlitied to 
 tli(^ cimttels real b}- survivorship nnd to all rents, itc, accruing durin;; the cover- 
 tiii'c; he irt also entitled to all chattels given to tliu wife during coverture in her 
 own right, thougli not to liei- in autre droit. But mere vliones in action or contracts 
 iiimle witii tho wife before coverture do not survive to the husband, and he must, 
 to recover tho same, sue na adnnnistrator of liis wife. 
 
 If tlie wife aiirfii'p, she is entitled to all chattcds real whicli her husband had in 
 licr right, and wldnh he did not dispose of in his life time, and to arrears of rent, 
 Ac, viiich becnmo duo during the coverture ujjon her nntecedcnt demise, or 
 upim tlicir joint demise during the coverture to which she assents after his death; 
 (Hill to all arrears of rent and other chosen in action to which she was entitled 
 btl'uru tho coverture, and which the husband did not reduce into actual possession. 
 
 II. 'J'ortn. If the husband survive, he may maintain nn action of trespass, ttc, 
 for any injury in respect to tho person or pro[)erty of tho wife, for which ho 
 n:i;,'iit have sued alone during coverture. Thus he niiglit maintain an action after 
 tlio wife's death for any battoi-y or personal tort to her, which occnsioned him a 
 particular injury, ns the loss of her society nnd nssistnnce in domestic affairs, or n 
 lifi'iiiiiary expense, or for any injury to the Innd of tho wife when living. If tho 
 wit'i' (lie pending an nctioii by her husbnnd nnd herself for any tort conmiitted 
 litliir before or during coverture nnd to which action she is a necessary party, 
 the suit will nbnte. 
 
 If tiio wife survive, nny action for a tort committed to her pcrsonnlly, or to bcr 
 tronds, or real property before marriage, or to her personal or real property 
 dining coverture, will survive to her. 
 
 f.'/) The above proviso may occasion some difficulty in the taxation of costs. 
 When the plaintifl' or jdaintiffs join several causes of notion in the same suit, his 
 or tlieir declaration ought to contain severnl distinct counts, oiu; nt least for each 
 eimse of notion. This, in tiie event of further i)roceedings, will in all probnbility 
 give rise to several distinct issues. Then to apply section 110 of tliis act, "The 
 costs of nny issue either of fact or of law shall follow the finding or judgment on 
 such issue," and bo adjudged to the successful party, whatever may be the remit of 
 the other insue or issues :" see also 11. G. pr. 61. 
 
 (/() The sections following, from TO to 80 inclusive, are founded upon tho first 
 report of the Common Law Commissioners, section 20, et snj. All these sections 
 witli reference to the time when the act came into force nj)ply to future ploadii'gs 
 not to past: I'mhorn v. Souster, 8 Ex. 144, per Parke, B. 
 
 'i lie expressed intention is to simplify " the language nnd form of plendings. ' 
 AVhiit is understood by "pleadings?" In the words of the commissioners — they 
 are written statements made by the plaintiff and defendant of their respectivo 
 
90 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 70. 
 
 statinuiitH TO. (0 All statements vcliich need not be proved, (/) 
 imt'iK''"'" such as the statement of time, (A-) quantity, quality and 
 iiutboniaX. value (/) where these are immaterial, (;«) the statement of 
 
 grniinils of nction and defence. The object is to ascertain what are the matters 
 really in controversy between the parties, so as to avoid all discussion niul 
 inquiry on those wliicli arc not so — tlius simplifying the matter for the decision 
 of the judi^e or jury, and savinii; th;^ parties unnecessary expense and trouhlo. 
 To accomplish this object the plaintiff in tlio first ])lace is required to state tho 
 facts which constitute his cause of action. The defendant is required it answer, 
 and in so doing is compelled at his option to take one of the following eoi rses:— 
 either he denies the statement of the plaintitY; or confessing it, avoids it 5 etl'eet 
 by asserting some fresh fact ; or admitting the facts alleged ho denies the legal 
 effect of them as contended for. In the second case, tiie plaintiff will be under 
 the like necossitj% and will have to reply to the fresli matter of fact alleged by 
 the defendant, subject to the same rules. In like manner, if necessary, defendant 
 rejoins ; and so the parties proceed until it is ascertained that there is some fact 
 asserted by the one side and denied by the other, or that there is some jjropo- 
 sition of law nfiirmed on the one hand and denied on the other. The question so 
 raised is called an issue in fact or in law, according to its nature. 
 
 (i) Taken from Eng. Stat, lii & 10 Vic. cap. 16, s. 49. Founded upon tho first 
 report of the Common Law Commissioners, section 36. Tho words of the enact- 
 ment are verbatim the same as those used by the commissioners in their report. 
 
 (j.) The law recognizes the rule that mere formal allegations need not bo 
 proved. The term "formal allegations" comprises among other matters "all 
 those averments of jylacc time, number, valve, (junlibi, and the like, whieti are 
 inserted in pleadings witnout being either essentially descriptive of tiie subject of 
 the claim or charge, or otherwise rendered material by special circumstances. 
 
 (/:) Time is seldom materi.il unless when of the essence of tho contract: see 
 Wimnhtirst V. Dcelc;/ et nl, 2 C.B. 2.").3 ; or unless the precise time of the happening 
 of an event is — with reference to tho purpose for which it is alleged in pleading— 
 of the essence of tliat event : Xusli v. Brown, 6 C. B. 5S4. When time iinppeiis 
 to f(i!'m a material point in tho merits of a case, if a traverse be taken, the time 
 laid is of tlie sii'>stanco of the issue and must be strictly proved. In the hi'lihi- 
 talus counts, time, tiiough not prefaced by a vidclieef, has been held immaterial: 
 Soiilhei/ et iil v. Jfar/n)!. 10 Ir. L. R. 250. It was a general rule that to all traviMS- 
 able facts there should be time and place, though the Avant of them under certaia 
 circumstances might be cured by the Statutes of Joefails: lUng \. l\oxboron<jh, 
 2 C, it J. 423, per Bajdey, I>. Dates may be assumed to be material upon 
 demurrer when, if truly stated, Miey would support the plea demurred to : Rijalh 
 V. Bramall ct al, 5 D. «fe L. 755, per Parke, B. 
 
 (/) Quantit}-, quality and value, are in general material in actions <'or goo, Is 
 and chattels or their value : JJerticy. I'iekeriiii/ct ux. 4 Ihirr. 2455 ; Ij'clmcs v. Jfodf/- 
 son, 8 Moore, 379 ; Scott et al v. Jonex, 4 Taunt. 805 ; Phillips v. Joiiei^, in Krror, 1 5 Q. 
 B. 859. Unless the article in respect of which tho party is Jtivj'd to be indeb od 
 be of some vnlue, there is no consideration for the subscqucni jyromiso : Mai/or of 
 Beadinr/ y. Clarke, 4 B. »fc Al. 2?1, per cur. Sed qu. see Forms of I'leadiiig ia 
 Schedule E. to this act. Many of these objections coidd oidy be raised by s^iiecial 
 domurrev, and it is now enacted " that no j)leading shall be deemed insutiieiciit 
 for any defect which could heretofore only bo objected to by special demurrer:" 
 section 123, of this act. 
 
 {m) It is only nccessai'y for defendant to state the substance of his cause of 
 action, whether \ipon contract or for tort : sco forms as to both ia Schedule B., 
 
 ! C. ct M. 672 ; H'l 
 
s. 76.] 
 
 IMMATERIAL STATEMENTS IN PLEADINO. 
 
 91 
 
 losiiio; :ind finding, and bailment in actions for goods or their 
 value ('0 — " the statements of acts of trespass having been 
 connuitted vith force and arms and against the peace of our 
 Ladv the Queen (o) — the statement of promises which need 
 not be proved, as promises in indebitatus counts and mutual 
 promises to perform agreements, (p) and all statements of a 
 like kind, (7) shall be omitted, {r) 19 Vic. c. 43, s. 98. 
 
 and also see notes to sections 120, 122. Substnntial words when used will include 
 nvt'rriicnts, without the averuients commonly stated \\\\({iira.vhhJ'urt. An example 
 uiav be y,ivcn. Plaintiff declared on contract, allojjtinif that defuiulant a^-reod to 
 ki.'cp and emiiloj' his horses " for a certain si)ace of time then an'rocd upon bet\vce-i 
 the plaiiitirt and defendant, to wit, for the space of one year next cnsuiiii;, and 'o 
 pay the j'l.iintiff for the use thoi-eof, certain hire and reward in that bel.alf, to » It, 
 i'.Vi 11 year for each of such horses, j^ayable quarterly." Iletd tliat every thing 
 fiillowiii^' ill'- vidcH'-etit might be safely rejected and the declaration read as alleg- 
 iim' a contract to hire for a certain time for certain hire and reward: Harris y. 
 ritiUipn, 10 C. B. 650 ; see also Ward v. Harris, 2 15. & P. 2(15. 
 
 (11) The actions usually brought for goods or their value before Prov. Stat. 
 M iV- 15 Vic. cap. fit, were detinue and trover. The averments of losing and find- 
 ing- in trover have always been considered fictitious and iimnaterial. So of detinue, 
 it has been adjudged that the gist of the action is the detainer, and that the bail- 
 moiit is altogether immaterial — in the sense of being travorsable. It has been 
 lilu'iiod to the allegation of the loss in a count in trover: Cloxsntan v. White, 7 C. 
 1). .VI, /)( /•'Wilde, V. .1. ; see also Glnhfcmc v. ILwilt, 1 C. cfe J. 505 ; Walk\r v. Jonca, 
 2 C. tt M. 672 ; Wliitchead v. Harrison. Q. B. 42.'5 ; Mason v. Farndl, 12 M. <t\V. 
 CV4. The bailment is of course material in actions on contract : see lloss v. Hill, 
 2 C. 15. 877. 
 
 (o) These averments have been held to be clearly immaterial, that is, not 
 traversable: see Harvey v. Brydijes rt a I, 14 M. & W. 407; s. c. in Error, 1 Ex. 
 2i;i; but see Spear v. Ch'ipman, in Error, 8 Ir. Law Rep. 401. 
 
 (;>) A promise set forth as a mere inference of law arising upon a liability 
 ptalcd is not necessary to be proved, and therefore not traversable: see Masson 
 V. llill d al, 5 U. C. (i'.B. 00 ; Jltnk li. X. A. v. Jones tf al, 7 U. C. (J.I5. 10(5 ; see 
 nl-i) Mdiiiilford et al v. Jlortoi, 2 N.Il. 62 ; Wade v. Simeon. 2 C. B. 548 ; but where 
 till' promise of plaintitF is the consideration of a contract, it is material: see 
 S ii!i,i-l-i)id v. Pratt ct al, 11 M. & W. 2it6. In an action against the maker and in- 
 il'ii-ers (;f a note, a joint and several liability need not, .since the C L. P. Act, bo 
 ;;!1c:;im1 -. Gladstone et al v. Boucher et al, 4 U. C. L. J. 2o. 
 
 (;) Where the declaration was on the common counts for board, etc., found for 
 dclViidaiit's illegitimate child at defendant's re</ncst. the rccpiest was ludd to be 
 iiiiiiiaierial and not traversable: Flaherty v. Mairs, ] U. C. (^B. 221. The omis- 
 sion uf a special request, even when necessary, has been held to l^e matter of form 
 fMiiy: .]fr/.cod v. Juckson, n 0. S. :!18. Since the C. L. P. Act, a declaration on 
 an executory contract has been held t^ood, although the conti'act was not- averred 
 to be under seal, and tliere was no allegation of mutual promises: Ancil v. Briker, 
 lliaudjers, March lu, 1857, llobiuson, C. J. 
 
 (/•) Shxdl he omitted. Those words are compulsory: Moherl;/ v. Baines, 2 U. C. 
 L. .1. 2"4. The only penalty is an order of a judge to strike out the unnecessary 
 avi'iments on the application of the o])posite partj-. lleasoning b}- analogy, it 
 may be mentioned that our old rule No. 29 E. T. 5 A'ic. ordered that " every 
 
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 ^'^m 
 
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 4 
 
 
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 92 
 
 Entering;, 
 (liitiii),' ainl 
 ri'i'iiriiiiij,' 
 l)leatliiig8. 
 
 THE COMMO\ LAW PROCEDURE ACT. 
 
 [s. 77, 
 
 77. (.■<) Every declaration or -other pleading (() shall be 
 entitled of the proper Court, («) and of the day of the uiontli 
 and year wlu-n the same is filed, y^nu') and shall also be entered 
 on the record made up for trial, and on the Judgment Riill, 
 under the date of the day of the month and year when the 
 same respectively took place, and without reference to any 
 other time or date, (y) unles^s otherwise specially ordered 
 
 declnration slinll in future. . , .commence," Ac, and tliat it was copied from Eng, 
 R. G. 3 Win. IV. No. 33, under wliich it was h J tliat averments made uiine- 
 ce.ssary l>y that rule mi^-ht bo struck out as surplusage: AUkrMii v. Johnson, 
 5 Dowl. P. C. 294 ; see also I)od v. Grant, 4 A. A E. 485. Statements wliicli need 
 not be jiroved are needless averments, and needless averments may be struck out 
 on apjilioation to the court or a judge: Ward v. Grayxtovk, 4 Dowl. I'. C. Tl". 
 Q'he ap})licatlou for such a purpose ought to be made by defendant before plea: 
 ThomuH v. Jacknon, 2 I?ing. 453. An amendment withoui doiibt would be allowed 
 in every such case under section 222 of this act ; but probably onl}' upon jmy iiieiit 
 of costs: see Lawrence v. SU'phem, 3 Dowl. P. C. 777. It is not likely that tlio 
 court would set aside a pleading pleaded in contravention of this section: sw 
 Jiiicon v. Ashfon, 5 Dowl. P. C. 94. An unnecessary allegation would not now, 
 it is apprehended, be demurrable : Bodcnham d al v. IIlll, 7 iSI. & W. 271 ; II"rl\. 
 Majirs, 7 U. C. Q. IJ. 410. In one case since the C. L. P. Act, upon an applica- 
 tion by defendant to a judge in chambers to strike out superfluous matter in the 
 declaration, the judge referred the declaration to the master, with iustruetioiis tu 
 do so with costs: I'aiton v. Provincial Ins. Co. 3 U. C. L. J. 113. 
 
 (s) Taken from Eng. Stat. 15 & 16 Yic. cap. 76, s, 54. Substantially a re- 
 enactment of old rule 29 of E. T. 5 Yic, which was copied from Eng. U. G. 1, of 
 II. T. 4 Wm. IV.: Jcrvis N. 11. 115. The origin of the latter rulo'is Eng. rule 
 15 of M. T. 8 Wm. IV.: Jervis N. R. 98. 
 
 (t) " Or other pleading " — clearly embraces replication, rejoinder, «tc., but 
 n])parently not a siniilitcr added as of course by iilaintifffor defendant where the 
 pleadiriii: of the hitter concludes to the country : see Shackel v. liamjer, 3 M. &, ^. 
 409 ; Eddin v. II am', 8 Dowl. P, C. 725. The siniilitcr when added by plaintiif 
 for himself has been held to be a pleading, and ought to be intitled: see Mi(hl'<- 
 ton V. J/iof/iea, 8 Dowl. P. C. 170. Contra: Blue v. Toronto Gas Co. 1 Cliain. It. ". 
 The siniilitir under this act is ia eflect a traverse and so a pleading in the cmise; 
 see se-tiou 108. 
 
 ('() The court must bo stated in the body of the pleading — intitling on tlie baek 
 of it is not sutKeient: Jil/Mnff v. Walts, 4 Dowl. P. C. 290. 
 
 (nu) I'loth the daj- of the month and year must be given. It woidd be irre:;uhiv 
 to omit the words, "in the year of our Lord:" Holland ct al v. TrahU, 8 Dowl. 
 P. C. 320. The ofKccr siiould not receive the pleadings at any place except tlio 
 office of the court: Martin ct al v. Snn/lh ct al, 11 Ir. Jj, Uep. 07. 
 
 (?') A ))leading dated on a day other than th.at on which it is filed, is an irroL'u- 
 larity only — not a nullity: see IJodxon. v. l-'cinicll, 4 Jl. it W. 373. The co|iy 
 of a ])h'ading wrongly dated is an irregularity ; Commercial Bank v. Bonlton, 
 1 Cham. R. 15. And an application may be made to amend: see Ikin v. I'ln'iu 
 ct al, 5 Dowl. P. G. 594 ; ]\'ldpple v. Mniiley, 5 Dowl. P. V. loO; Ilouijh v. B<mi 
 1 M. it W. 314; see further Dai/ v. Wrin'hr, 5 Ir. L. R. 240; Croltji v. ■!?»".'/.'/. 
 8 Ir. L. R. 8; Hinds v. Shannons, lo Ir. L. R. 458. The irregularity, if n"t 
 promptly moved against, may bo waived: Ncwnham y. Ilanny et al, 5 Dovl, 
 
 
S. I 
 
 8.] 
 
 PROFERT AND OYER. 
 
 98 
 
 by the Court or a Judge, (w) 19 Vic. c. 43, s. 103. 
 
 78. (.r) it shall not be necessary to make profort of any Profcrt, 
 deed or other document mentioned or relied on in any plead- unueoessary. 
 jnfTj (jj) and, if profert be made, it shall not entitle the oppo- 
 
 p. C. 259. A clemiUTcr to a pkarling fJod on the grt nnd that the plonding was 
 wroiin-ly intitled 1ms bee t iiside will) costs: Neil v. Jiichardson, 2 Dowl. V, 
 C. S'.t. "An added jilcii f' 1 bear the same date as the orij^iual pleas: SLor( v. 
 Simpf^on el al, L. U. i C. 1'. 2.")0 n. 
 
 Tlic omission to state the date of a pleading in the issue or record is clearly 
 puoh an irrej^ularity as maybe iimved n:j;ainst. AVliere, in tlie issue, the dates 
 were omitted, but correctly given in tliu record, held a variance of which the 
 defeiulant was entitled to avail ^ 'it "If even after trial: Worthington v. Wigleij, 
 5 Dowl. 209; sec also Ball v. li tiui, :: Dowl. P. C. 188. And where in a writ 
 of trial, the date was incorrectly given, the court ujjon application after verdict, 
 set a-^ide the verdict and subsequent proceedings: Wriglit v. J^rrers, 5 Dowl. P, 
 C. 403; see Wkile v. Farrar, 2 M. &, W. 288. But any such irregularity may be 
 waived if defendant appear at the trial and enter upon his defence : I'ercival v. 
 Coniicll, 6 Dowl. P. C. 08; -.■■ al • : Whipple v. Manlty, 1 M. &, ^Y. 432; Farioig 
 V. Cockerlon, 3 M. & W. iCO 'L will make no difference though defnidaut's 
 co\iiisel protest against the i-iul .o long as he allow io to proceed: JJlisnett v. 
 TtDiiiit, 6 Dowl. P. C. 436. Defendant sliould apply to have tl>e record amended 
 (it the expense of plaintiff: Whipple v. Manlcy, 5 Dowl. P. G 100. 
 
 (w) Court or Judge, Relative powers : see note w to section 48. 
 
 (/) Taken from Eng. Stat. 15 ife 16 Vic. cap. 76, s. 55. Founded on the first 
 rc[i()rt of the Common Law Commissioners, section 41. "To prevent needless 
 ieiiuitli," the commissioners " proposed to do away with profert and oyer," This 
 pection carries their proposal into effect. When pleadings were oral, a party 
 fuundiiig his claim upon a deed was bound to make profert, that is, to offer to 
 proiliice it to tlie court. Profert when made entitled defendant to derii.md oyer, 
 timt is, to have the deed read. Thereupon the deed was read aloud by an officer 
 of tiie court. When written were substituted for oral pleadings tlie same forms 
 were observed, with this exception, tlie defendant who demanded oj-er was enti- 
 tled to a verbatim copy of the deed mentioned in plaintiff's declaration, whicli lie 
 (defendant) usually set out at length in his plea, and which for the purposes of 
 pleading was taken to be part of plaintiff's declaration. Such a ju'oceeding 
 caused endless prolixity, and in many cases useless expense. Hence the change 
 iiitruduced by this act. It may bo mentioned that the law as to ^jrofert extended 
 only to written instruments under seal: see Smith V. Ycomans, 1 Wins. Sauud. 
 olT ; Turquand et al v, Ilcnnet, 7 C. B. 179. 
 
 (v) In some case:? the omission of profcrt without a corresponding substitute 
 may have the effect of placing a defendant in difficulty. One sueii case lias netu- 
 iilly arisen. An executor suing as such is not bound to prodiiee probate UTitil tiio 
 trial of tiie cause, though formerly bound to make profert of it. As the law now 
 stands, it might be held that ho is neither bound to produce prot)ate nor to set it 
 (lilt ii|ii)ii oyer. The consequence would be this. Defendant is sued by a persi">n 
 wliii assumes to act as executor for a demand which lie is not disposed to dispute. 
 It' lie [lay the demand to plaintiff, he may be payi \g money to a person who is 
 really not exeeutor. If he do not pay he is put to the expense of a suit. The 
 I'oiirt i:i one such case, considering " the peculiarity of the case and the anomalous 
 jiosiiion in which defendant was placed by an oversight of the legislature" in tlio 
 iM-reise of a common law jurisdiction to prevent the abuse of its process upon 
 
 W.,W^.i 
 
 
 >'?'.( ft-,a 
 
 'tr 
 
 
 Vx 
 
 V. ri' 
 
m. 
 
 94 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s 79, 
 
 80.] 
 
 ,'j|. 
 
 But may be 
 
 Sl:t out ill 
 
 plua. 
 
 site party to crave oyer of, or to set out upon oyer, such deeJ 
 or other document, (s) 19 Vic. c. 43, s. 104. 
 
 79- (ff) A party pleading in answer to any pleading in 
 which any document is mentioned or referred to, may set out 
 the whole or any part thereof which is material, (b) and 
 the matter so set out shall be taken to be part of the pleading 
 in which it is set out. (c) 19 Vic. c. 43, s. 105. 
 
 npplicati'm of defendant, stayed proceedings nntil probate slionld be taken oi,t 
 and rci'.sonablo notice thereof given to defendant: Webb v. Adkinn, 14 C. 15. 401, 
 "When a party in pleading sets out partially and relies on a document not under 
 seal, the court may, since the C. L. P. Act, treat such document as if' set out in 
 extenso and give judgment accordingly: Srr/rave v. Barber, 5 Ir. C. L. R, 07; 
 Armfiti-onr/ v. Turquund, '.) Ir. C. L. R. Jiii ; Fih.patrick v. Fine, 13 Ir. C. L. IJ. 32. 
 But this rule only applies to docnmcuts of winch oyer was deniaudable before 
 the C. L. r. Act : 76. 
 
 (-) Defendant may notwithstanding, if necessary to siipport his defence, set 
 out tlie agreement sued upon: see M'oorl v. The Cooper's Miners Co. 14 C. B. 428; 
 also Smart v. J/i/dc, 1 Dowl. N. S. 60; Xn-^h v. Bree:;e, 2 Dowl N.S. lOl.T ; Skvek- 
 hi[i el a! v. Dntton, 3 C. B. 331 ; Ileutli et al v. Durant, 1 I), it Jj. 571 ; Sharlnudy. 
 .LiefchUd, 4 C. B. 521 ; Wcedoa v. Woodhridne, IS L. J. Q.B. 15S ; Friur v. Grnid 
 al, 15 Q. B. 801. But the agreement so set out will be part of defendant's \An 
 and not of ]ilaintifl"s declaration: section 79. Defendant theref(jre cannot, ruly- 
 iiig ujjon his plea, demur to plaintiti"s declaration: see Sim y. Edinands, 15 C. ii, 
 24U ; see also Maker v. Purcell, 13 Ir. C. L. 11. 133. 
 
 («) Taken from Eng. Stat. 15 A 10 Vie. cap. 76, s. 50. 
 
 (b) Even before this act, the party who set up a document as a ground of 
 action was not bound to set out in his pleading more than was material for his 
 CISC ; but if the document was an instrument under seal it was necessarj' for liini 
 to nnike iirofert whicli entitled his adver.sary to demand oyer. In this way the 
 whole of the iristrunient was at length s'>t out upon the record. As both prdfort 
 and oyer are abolished, a party adverse to a pleading which mentions and relics 
 upon any document must, in order to obtain a copy of it, make aj)plication fur 
 leave to inspect. If he succeed, he will then be in a position to set out '' the 
 whole or any part thereof that may be material ' for his defence or action as the 
 case may be. This a party to a suit has always been entitled to do, and only 
 prevented from doing when unable to obtain a copy of the document in qnostion. 
 This section npjilies to any document, whether under seal or not : The J'cnurlh 
 Harbour, Dork and 7.'. Co. v. The Cardiff WaUr Works Co. 2i) L. J. C. P. 2:M, per 
 AVilles, J. There is nothing at present to hinder either jiarty setting out a wlmliJ 
 document in his pleading when it is expedient to do so in order to a corroct 
 understanding of its intent and meaning: see Morrison ct al v. Trenckard, 4 M. it 
 G. 709; see further note z to section 78. 
 
 (e) Under the old system of pleading, the party pleading set out the docuniciit 
 on oyer, making it a part of the previous pleading ; but by section 78 of this iu t 
 profert and oyer are abolished; and by section 7'.', here annotated, the docuiiii'nt 
 when set out " shall be taken to be part of the pleading in which it is set out." 
 It is a rule that a defendant cannot demur to a declaration upon the groui.d that 
 his plea shows something which makes the declaration initenable. AVlicrefori.', 
 since the C. L. P. Act, a pliuntilf declared for money payable to him umU'r .in 
 award, and defendant pleaded setting out the award in hac verba, and conc'iakil 
 
 80. (^0 
 
 aver perform n 
 the oppcsite p 
 and shall spe^ 
 precedent the 
 19 Vic. c. 43, 
 
 '■ihnt the said 
 V. Kdiuaiids, 15 
 ft'ls out any par 
 Ciillt'd upon to tr 
 Q. IJ. 4.j1. 
 
 id) Taken fro: 
 first rc])ort of th 
 oniictiii'.'iit, and i 
 '•i\ii'lail unnece,~ 
 merit.s:" Conmioi 
 that a defendant, 
 the declaration, m 
 tiuii " which he n 
 
 (.) Tl'.isis an 
 1 l.d. I'layd. 062 : 
 of tiic j)erforman 
 on general demur 
 Mamun, ItBing. 'S 
 V. Xoriiian, M. ^\ 
 Mil!.^. 1 M. it G. 75 
 Sinilh, 15 M. ctAV, 
 lii'viiigheen abolis 
 nnn.*.>ailable : see 
 fh{,iii;ii sensible of 
 The form of a gei 
 phoiild be observei 
 ii!l things necessar, 
 Loan! tlie said schi 
 fur the non-delivei 
 liiU't, averred " th 
 pliiintiff to be per 
 cnlill,- plaintiff to , 
 iiii.'ivernientof rea 
 Pi't' fiu'ther Graves 
 ir,, 00; liamberQ 
 J^'. B. 076 ; Wheelei 
 "T'l; Gcther v. Ca^ 
 Oreu (I al v. Friar 
 V. Wanless, L. R. '2 
 
 if) The princip 
 T'li'tii'iiliir issue ha 
 ti'ni to be tried mr 
 "''^viiat is to be i\" 
 MansHeld. This p 
 finned : Grei/ ct al 
 
CONDITIONS PRECEDENT. 
 
 95 
 
 s. 80.] 
 SO- on The Plaintiff or Defendant in any action may Ast.xiver- 
 
 ,. . , 11 /->1 IlK'Ilt liflH'l'- 
 
 avcr pcvforniance of conditions precedent generally, (c) but r., 
 
 irnmiu'i! ur 
 
 llnn-]iiT- 
 
 the opposite party shall not deny such performance generally, runiiamo (.f 
 and shall specify in his pleading the condition or conditions i'l-Jui'dcilt. ' 
 precedent the performance of which he intends to contest. (/) 
 19 Vic. c. 43, s. 106. 
 
 '■ that llio said declaration is not sufficient in law," tlic plea was hold bad : Sim 
 V, Kthhiiuih, 15 C. B. 240. I(. woidd also ai)i)ear where under this act a party 
 sc'ls out any part of a document pleaded by his opponent that the latter is not 
 callf'd upon to traverse or make any answer to it : liajiua v. Sudkrs' Co. 22 L. J. 
 Q. IS. 451. 
 
 (<!] Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. u1. Founded upon the 
 {[vk report of the Common Law Commissioners, section 42. The object of tliis 
 cnai'tni'.'iit, and indeed of all these enactments relative to pleadinij, is at once to 
 "curlail unneccrsarj- prolixity," and to "cause actions to be defended on tiieiv 
 iiK'iits:" Conmiou Law Commissioners. The effect of the enactment seems to be 
 tlial a defendant, instead of denyin;:^ every alleg'ation of performance contained in 
 the doclai'atioii, will be confined to the denial of the performance of some condi- 
 tion " which he really believes has not been performed" : JO. 
 
 (() Tl'.is is a return to the ancient system of iileadiiioj: see Thorpe v. Thorpe, 
 1 l.d, llayd. 662 ; see also 3f'iiibt/ v. C'rcmonini, 6 Ex. b08. General averments 
 of the performance of conditions precedent have before this act been held good 
 on u'fiieral demurrer, and oidy objectionable upon special demurrer: see Vm-hij \. 
 .Viiiiun, Binp,-. 364, per Tiiidal, C. J. ; Proctor v. Sargent, 2 M. & (i. 20 ; De Medina 
 x.Xorman, 9 M. (k AV. 820; see lilso Koak'n v. Manser etui, 1 C.B. uol ; Kimble x. 
 MilU, 1 M. it G. 757 ; C'-rt et al v. Amberyate R. Co. 20 L.J. Q.B. N.S. 465 ; Caines v. 
 iimith, 15 M. it W. 189 ; Kcp]) ct al v. Wigyctt it al, 6 C. B. 280. S|)eeial demurrers 
 lii'viii2;becii abolished, such geiicral averments would consequently stand ^-ood and 
 uimssailable: see Chambers v. Soden, 1 Jr. Jur. N. S. 7'.». The C'oinmis.-^ioners, 
 (h(.iiL.li sensible of this residt, thought it had better bo "substantially enacted." 
 Hu' form of a y;eneral averment of conditions precedent given in the schedule 
 fhniild be observed. It is on a charter party as follows: "that the plaint itf did 
 all tlniii)s necessary on his part to entitle him to have the aj^'reed caryo hjatlcd on 
 board tlie said schooner at Hamilton," «.tc. : Selicdule B. Xo. 18. In a declaration 
 fur tlie non-delivery of yoods pureliased, plaintiff, after admitting the delivery of 
 jiart, averred " the performance of all conditions precedent on the part of the 
 plaintiff to be performed, and that nil things had been done and happeni^d to 
 cntld( plaintiff to have the residue delivered to him," itc, laid sullieient without 
 ii:i averment of readiness and willingness to pay : Bentley v. Dawes et al, '.) Ex. 606 ; 
 ^•e fiu'tlier Graves v. Lcyy ct al, 9 Ex. 715, per r;irke, B. ; Jiust v. JVottidyc, 1 El. 
 i' r>. 91); Bamberger ct al v. The Commercial Credit Mutual Assurance Society, 15 
 C. li. 076 ; Wheeler ct al v. Bavidgc, 9 Ex. 6 JS ; Phelps v. Prothero d al, 16 C. B. 
 ST'i; Getherv. Capper, 15 C. B. 39; Roberts v. Brett, C. B. ^'. S. 611, 633; 
 Grey it al v. Friar in Error, 15 Q. B. 901 ; Behn v. Burness, 3 B. it S. 751 ; Tetley 
 V. Wanless, L. R. 2 E.\'. 21. 
 
 f /') The principle in pleading that to a general averment there should be a 
 p:uiirular issue has long been acknowledged. Tiie reason of it is that the ques- 
 tion tu be tried may be brought to some degree of certainty, and notice given 
 "f what is to be agitated at the trial: Sat/re ct al v. Minns, Cowp. 578, per Lord 
 Maiii^tieUI. This principle has, in a modern case, been fully canvassed and con- 
 firmed : Grei/ ct al v. Friar, in Error, 15 (l B. 901. 
 
 m^ 
 
 -'If 
 
 

 &'■'':' 
 
 u 
 
 THE COMMON LAW TROCEDURE ACT. 
 TIME AND MANXER OF iJECLAIilNG. (;/) 
 
 [S. 81. 
 
 ((/) The first step in pleading is the declnrntion, in which plftintiff sets forth 
 the cause of Iiis complaint particularly, and thereby explains his writ. AVlieie 
 plaintiff has several causes of complaint he is allowed to pursue them cumulatively 
 in the same suit, provided they be against the same parties and in the same 
 rights: section 73 of this act. Such different complaints conilitute different parts 
 or sections of the declaration, and are known in pleading by the description ot 
 counts. It is a singular fact that this act is silent as to the allowance or disallow- 
 ance of several counts, though provision is made for several pleas and otlicr 
 subsequent pleadings: sfction 110. The law, therefore, in this respect, in tliij 
 province, remains much tlie same as before the act. The use of several counts in 
 the same declaration has ahvaj-s been permitted under certain restrictions : On- 
 aloio V. Home, 3 Wils. 183 ; Sniilhetalv. Milks, 1 T.R. 475. A restriction in En;;- 
 land was to the effect that they should not be allowed " unless u distinct subjnt 
 matter of complaint was intended to be established in respect of each:" Eng. rule 
 5 H. T. 4 \Vm. IV.; Jerv. N. H. 11(5. A restriction in this province, almust in 
 similar words, was held, from the peculiar phraseology of the rule, to have n'fi.r- 
 cnco to costs only: Rule 32, E. T. 5 Vic. Cam. 11. 37; and see Johnson v. Jfunler, 
 1 U. C. Q. U. 'iSO. NolwlliHtanding, the power of the courts to strike out such 
 counts of a declaration as are dmible and vexatious has never been doLibted. For 
 example, where a declaration contained ninety-eight counts upon as many nntci 
 for £1 each, the court ordered all to be struck out but one: Cunnack v. Gundni, 
 1 Chit. 11. 700; see Turther Nelson v. Orifflths, 2 Bing. 412; Lane v. Smith, 
 
 3 Smith, 113 ; Meeke v. Oxlade el al, 1 N. II." 289 ; Gahdlv. Shaw, 1 D. A R. 1?I; 
 Neicby v. Mason, lb. ,')08. It is now provided by the new rules of pleading that 
 upon any application to strike o>it counts the court or a judge m.iy allow "such 
 counts upon the same cause of action as may appear to sucli court or judge to be 
 proper for determining the real question between liie parties on its merits:" X. 
 K. I'l. 2. The power to strike out some of several counts founded on tlie same 
 cause of action is, it will be noticed, by this rule taken for granted. The courts 
 have a general jurisdiction in such matters, which has never been taken awiiy tr 
 altered by the rules, though in the exercise of it tlie courts have always bten 
 governed by such rules : James v. Bourne, 4 Bing. N. C. 423, /xrTindal, C. J. It 
 has been held in many cases that if there bo a distinct contract in respect of the 
 same subject matter, a count on each contract may be allowed : lb. per Tiudal, 
 C. J. A count on a promise to carry goods irom Dublin to London, and a count 
 on a promise to carry the same goods from the wharf at London to plaintiff's 
 place of business have therefore been permitted in the same declaration : lb. 4'20. 
 see also \aughan v. Glenn, 5 M. & W. 577; Rex v. Archbishop of York d i, 
 
 1 A. & E. 3'H; Dueer v. Triebuer, 3 Dowl. P. C. 133; Wilkinson y. Small, Ih. 
 504 ; Bleaden v, Riipallo, 9 Dowl. P. C. 857 ; Cahoon v. Burford, 2 D. «t I-. 
 234; Lucas v. Beale, 2 L. M. & P. 47; Ilernod y. Wilkin ct al, 11 Q. B. 1. The 
 common counts for the purposes of pleading and costs have been held to be squ 
 rate counts: sie Jourduin v. Johnson, 4 Dowl. P. C. 534; Ferguswn v. Mitchell, 
 
 4 Dowl. P. C. (313; Spi/er v. Thclwell, 4 Dowl. P. C. 509; Ring v. Roxbrov§h, 
 
 2 C. & <l. 418. V'here a declaration contained eighteen counts, nine for malicious 
 prosecution and iiine for slander, to wliich defendant pleaded the general issu'"' 
 and at the trial tl e jury found for i)laintiff on the tenth, eleventh and twelfth 
 counts, and for defendants on lite residue of the declaration : Held that a distinct I 
 issue was raised on each count by the general issue pleaded without restrictinn. 
 and th(->r-t'()ri; that defendant was equally entitled to a deduction from plaintitl s 
 costs ill respect of counts found for him, as if i.ssue had been joined on tlie^ii 
 counts by pleading separately to each: Cox v. T/iomason, 2 C. «& J. 498. Froin 
 what has been already said, it may be laid down that if counts are on tlie face oi 
 them founded on the same subject matter of complaint, the court or a judge may, 
 upon application, strike tliem out: Ilernod y, Wilkin et al, 11 Q. B. 1 ; Jianmkn\ 
 
81.] 
 
 TIME OF DECLARING. 
 
 97 
 
 81. (h) 
 
 he declares (i) within one year (_;') after the Writ of Sum- wi 
 
 A PlaintiflF shall be deemed out of Court unless riaintitr 
 
 must declare 
 within a 
 i'csr. 
 
 V. Graij et al, 1 C. B. 961. In pleading several counts hy the insertion of the 
 word "other," counts are made to represent diflferent subject matters: see Hart 
 V. Longjield, 7 Mod. 148. Thus, a declaration upon an agreement contained two 
 counts. The first averred that plaintiff agreed to let and defendant to take cer- 
 tain ])reniises specified, subject to an undertaking that defendant should keep the 
 same in repair. The second count stated in consideration that the defendant had 
 become and was tenant of a certain other messuage, he promised, Ac. At the 
 trial of this case one contract of demise only applying to one house only was 
 proved : held, that plaintiff was not entitled to recover damages in respect of the 
 breaclies alleged in both counts: EolfordM. Bunnell, 1 M. & W. 348. From this 
 it appears that where there are several counts apparently founded upon difiFerent 
 subject matters of complaint, but in fact the same, though allowed to stand to- 
 getiier, pluintiflf runs the risk of failing upon all except one at the trial. This 
 strengthens the general rule that several counts giving difierent versions of the 
 Slime subject matter will not be allowed : see Cholmcndeley v. Payne el al, 3 Bing. 
 X. 0. 708 ; Jenkins v. Trtloar, 4 Dowl. P. C.'690 ; Laiorence v. Stephem, 3 Dowl. 
 I'.C. 777 ; Thornton v. Whitehead, 4 Dowl. P.O. 747 ; Weeton et al v. Woodcock el al, 
 5 M. & W. 143 ; Roy y. Brislow, 3 Dowl. P. C. 452 ; Temperley v. Brown, 1 Dowl. 
 K.S. 310 ; Mathewson v. Ray, IC M. & W. 329 ; Grisxell et al v. James, 4 C. B. 768 ; 
 Faijanv. Harrison, 4 C. B. 909 ; Boozey v. Tolkien, 5 C. B. 476 ; Smith v. Thompson, 
 5C. B. 486; IIoarev.Lee, 5 C. B. 754; Arden v. Pullen, 1 Dowl. N. S. 612; 
 Gilbert v. Hales, 2 D. 4 L. 227 ; Ramsdcn v. Gray et al, 7 C. B. 961 ; Bulmer 
 V. Bousfield, 9 Q. B. 986 ; Simpson v. Rand, 1 Ex. 688. The application to strike 
 out counts ought to be made to a judge in chambers, in the first instance, and if 
 a doubt arise the parties may apply to the court : Ward v. Gray stock, 4 Dowl. P. 
 C. 718, per Parke, B. The summons or rule ought to be drawn up on reading the 
 declaration or ftn aflidavit of the identity of the counts : Roy v. Brislow, 5 Dowl. 
 1'. C. 432. 
 
 (/() Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 58. A re-enactment of our 
 Rule 19 U. T. 13 Vic, which was copied from Eng. Rule 35 H. T. 2 Wm. IV. : 
 ' ivis, N. R. 68. Inapplicable in an action of ejectment: Scope v. Paddison, 6 II. 
 it y. (141. Held not to apply to a case where the plaintiff was prevented from 
 doL'ltiiing by an order obtained by defendant to stay proceedings until security 
 for costs: Koss v. Green, ID Ex. 891. Also held that where plaintiff's procoed- 
 iii;;s were stayed by rule which expired on a certain day, that plaintiff was 
 bound to declare within a year from tl' j expiration of that rule: Unite v. Ilum- 
 phroj tt al, 3 Dowl. P. C. 532 ; see also Home v. Tookc, 2 Dowl. P. C. 770 ; Johns 
 V. Saunders, 5 D. <fe L. 49 ; Ross v. Green, 10 Ex, 891. These rules were based upon 
 an acknowledged rule of practice that a plaintiff must declare within twelve months 
 after tlic return of fi'^st process: Worley y. Lee, 2 T. R. 112; see also Pcnn^ v. 
 Harvey, 3 T. R. 123; Cooper v. liias, 3 B. <fe Al. 271. 
 
 (i) Plaintiff to declare, within the meaning of this "nactment, must serve as 
 well as file his declaration within the year : Eadon v. Roberts, 9 Ex. 227 : .?ee 
 further Wallace v. Frazer, 2 U. C. L.J. 184. If served after the expiration of a 
 year tlie declaration may be set aside upon application of defendant : see Barnes 
 T. Ji.clcson el al, 1 Bing. N C. 545. Provided ; he application be made within a 
 reasonable lime : AicKenzie et al v. McNaughton et al, 3 Prac. R. 35. 
 
 (j"i i. e. Within twelve calendar months : see Bishop 0/ Pderborouyhy. Cateshy, 
 Cro. Jac. 160. " Within one year" and " within four terms," are not synonymous 
 expressions ; Chaplin el al v. Showier, 6 D. <fe L. 227. The days between 1st July 
 and 2lst August — the long vacation — will be calculated as part of the year. It 
 
 y 
 
 
 
98 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 83. 
 
 mons or Capias is returnable. (Jc) 19 "Vic. c. 43, s. 107, 
 
 82. (0 A notice (in) requiring the opposite party to 
 stciui of luio declare, or to declare peremptorily (n) within eight 
 
 1ms been held where a cause was removed from an inferior court, that plaintiff 
 could not be considered out of court until a year after the return of the writ by 
 which the suit was removed: Korrish v. Richards, .3 A. & E. V33; sec also Piem 
 V. Street, 3 B. & Ad. 397. Plaintiff after removal by defendant is not bo\m(l to 
 proceed in the superior court : Garton v. The Great Western It. Co, 1 E. <t E. 258. 
 
 {k) The summons is returnable immediately after service : Conroy v. Pearscn, 
 4 Trac. 11. 201 ; Hodgson et al v. Mee, 3 A. & E. 765. Wherefore it would scorn 
 that the year should bo reckoned from the date of service : see Barnes v. Jnchnn 
 et al, 3 Dowl. P. G. 404. It is not to be understood from this section that plaintitf 
 cannot be compelled to declare before the expiration of a year. Plaintiff has of riylit 
 until the expiration of the term next following the date of appearance within 
 Avhich to declare. If within that time he neglect to do so, defendant can by 
 notice require him to declare within eight days, otherwise judgment of non pros. : 
 13 Car. II. St. 2, cap. 2, s. 3, and section 82 of this act. I3ut if the appearance 
 be entered in term, plaintiff may have the whole of the term next after the term 
 in which the appearance is entered : Foster v. I'ri/me, 8 M. & \V. 664. 
 
 (I) Taken from Eng. Stat. 15 & 16 Vic. cap. 70, s. 53. Substantially a rc-eimct- 
 nient of rule 2 E. T. 11 Geo. IV. (Cam. Rules 12), and old rule 10 E. T. 5 Vic, 
 {10. 22.) 
 
 (m) It was a demand under the old rules 4 E. T. 11 Goo. IV. (Cam. Rules 9), 10 
 E. T. 5 Vic. : lb. 22. Between a demand of plea and notice there is a distinctiuii. 
 The latter is by this act expressly substituted for the former : section 92. 
 
 (n) There is no time limited within wliich these notices must be given. Tlioy 
 are not so much compulsory as optional; but in order to force eitlier party tu 
 l>roceed with big action or defen'jC, as the case may be, the notice is necessary. 
 Eor instance, a notice to declare given by defendant to plaintiff " otherwise jiu!^'- 
 mcnt," entitles defendant if his notice be unheeded to sign judgment of non y<As. 
 But plaintitf has, it would seem, the whole of the term next following appearaiiit; 
 within which to declare: Foster v. Pryme, 9 Dowl. P. C. 749. And if after tlwl 
 time defendant omit to serve a notice to declare, plaintifi' will have twelve nioiitiis 
 within which to declare : Chaplin v. Showier et al, 18 L. J. Ex. 84. Even if notice 
 to declare has been given, it is still in the power of plaintifi" to apply for fiiitlitr 
 time to the court or a judge: JJeazleyv, Bailey, AT). &L. 271; Crutchleyy.Thc Lond'M 
 tj- Birmingham R. Co. 2 D. (fe L. 102. If defendant^Jpi judgment before the time 
 for shewing cause, the judgment will bo set aside: Wcazley v. Bailey, 10 M. iHV. 
 58. If the pleading be delivered before judgment, tliwugh after time limited for 
 the pleading, the judgment willJ|^et aside: Gray v.rennell, 1 Dowl. P. C. l-'l 
 If the time granted be allowed W|kiiire without declaring, defendant may .sijn 
 judgment without a fresli noticm^Kulon v. Gant, 5 Dowl. P. C. 153. In any 
 event, if plaintitf do not declar»^ithin one year afto" the writ is returnable, Iw 
 will be deemed out of court: section 81. So if no notice to plead be given ijy 
 plaintiff to defendant, or notice to reply by defendant to plaintitf, either l)arty 
 will for that purpose have whatever time he thinks proper. After the expirali'Jii 
 of four terms from the last proceeding by plaintitf, it luis been held that no future 
 Ijrocecding can be taken without a term's notice : see Lord v. lliUiard, 9 I>. it L'. 
 (321 ; LumUy v. Thompson, 3 M, & W. 032; <dso see Metcalf et al v. Ilethering'on, 
 3 II, tfe N. 755. It is ordered by the English new rules that in such ca.ses a ealcii- 
 dar mouth's notice shall be given: R. G, II. T. 1853, Xo. 170; but this rule ITii 
 
ss. 83, 84.] 
 
 SERVICE OF PLEADINGS. 
 
 90 
 
 il;iys, (o) sliall be sufficient without any rule or other de- to aocian-, 
 iiiand. {oo) 19 Vic. c. 43, s. 1U2. *"'• 
 
 83. No declaration, or pleading after declaration, shall be nedamtimi 
 filed or served between the first day of July and tho twenty- l',I,t'tl,'bu'^ 
 first day of August in any year, and the parties respectively I,'!'|.v,.' i' m 
 in any case shall be entitled to the same number of days after vacation, 
 tlie twenty-first day of August to plead to or answer any 
 pleading filed or delivered before the first day of July, to 
 
 which they would have been entitled had this provision not 
 been made. 12 Vic. c. GG, s. 8j 19 Vic. c. 43, s. G5. (p) 
 
 84. Unless otherwise provided by Statute or rule of Oninri- 
 Court, declarations and other pleadings and notices re- otii.MVii-.Ti- 
 fjiiired to be served in any action whether in the Superior '""^ '"'* 
 
 has not been adopted by our courts. One of several defendants, who alone 
 apppfU'ud, has been held not to be entitled to sipjn judgment of non pros, though 
 lie demanded a declaration: see Ilamlet v. Breedon el ul, 4 M. & G. 909; Shore ct 
 w/. V. Bradley et al, T. T. 4 <L' 5 Vic. M.S. R. & II. Dig. " Judgment of nou pros." I. 
 This section has been held inapplicable to causes removed by certiorari : Garton 
 V. The Great Western R. Co. 1 E. «fe E. 258. 
 
 (5) " Within four days," in Eng. C. L. P. Act: see Medway v. Gilbert, 32 L. J. 
 K.v. 30. A notice here giving less time than eight days would be irregular, and 
 jiKi,,'ment signed within the regular time set aside : Braty v. Baldock, Barnes, 302. 
 
 {00) Shall be sufficient " unless otherwise ordered by the court or a judge," in 
 ohl rule 10 E. T. Vic. Tiic omission of these words in the section under consi- 
 doiiition cannot be of much importance, as the courts have unlimited power over 
 lucjccss and pleadings. Further time to declare, i)k'ad, reply, ttc, may still, 
 as much as ever, be obtained upon proper application to tiie court or a judge. A 
 clefeiulaut, having two days before the ordinary time for pleading had expired, 
 obtiiinod an order granting him a week's further time to ])lead, it was held that 
 the further time to plead was to be computed from the expiration of tiie ordinary 
 time f'T pleading, and not from the date of the order : Brady v. rickering, 5 U.C. 
 L. J. N. vS. 25. 
 
 {}i) This in effect preserves to Ontario the vacation first introduced by I'ro- 
 vhiciiil Statute 12 Vic. cap. 63, section 03: see also R. (J. pr. 9. The correspond- 
 in;; vacation in EnglancMs from August 10th to October 24th: see Eng. Stat 2 
 Vm, IV. cap. 39, sectionTl. A plea filed or served during vacation is a nullity: 
 ^Idls V. Brown, 9 Dowl. P. C. 151. If the time for pleading expire before 1st 
 July, plaintiff is at libertj' to sign judgment at any time between 1st July and 
 iilst Ant;iist: Morris v. Hancock, 1 Dowl. N. S. 320; see also Sharp v. Fox, 1 II. 
 it X. 49u. If the time for pleading expire on 1st July, judgment cannot be signed 
 till tlio expiration of the time limited for pleading after 21st August: Senerin v. 
 Ldcrster, 12 t>. U. 949; and this practice applies where time to plead has been 
 Lavcn: Wilson et al v. Bradslocke, 2 Dowl. P. C. 41G; Solomonson et al v. Parker 
 (lal, 2 Dowl. P. C. 405. A defendant who has a day's time to jilead after the 
 ln>;>]icniiig of an event, has the whole of the day following that on which the event 
 Imjin'iis; Connelly v. Brcmner, L. R. 1 0. P. 55'7; see further as to computation 
 uf time, LiJ/in v. niche,; 1 Dowl. N.S. 707 ; Dunn v. llodson, 1 D. A L. 204. 
 
 •'^^V 
 
 l-V^I 
 
 

 f^ ■',"! ' : 
 
 100 
 
 THE COMMON LAW PROCEDURE ACT, 
 
 [8. 85. 
 
 Henctiinany OF Countv Coufts may bo servcd ia any County, (q) 13 & 14 
 ^•^"""^- Vic. c. 52, s. 2. 
 
 mentllf"^^" 8*5. (r) Every declaration shall commenco aa follows, or 
 ( Vinue.) (f) A. B., by E. F., his Attorney (or in person, («) 
 
 (7) Tliis flows from the general territorial jurisdiction of the courts in all pnrts 
 of this province, and so far na the section ia concerned, it is as much applicable 
 to suits instituted in county courts as in the superior courts. 
 
 (r) Talicn from Eng. Stat. 15 it 16 Vic. cap. 76, s. 69. The commencement of 
 the form of a declaration here given is much the same aa that prescribed by rule 
 13 H. T., 13 Vic, wliich was taken from Eng. R. G. 15, M. T., 3 Wm. IV. 
 
 (.s) It sliould be remembered that the declaration must be intitled of the proper 
 court and of the true daj' of the month and j'ear of pleading the same : see sec- 
 tion 77. And if it be intitled in a particular court, the action cannot afterwards 
 be transferred to a court of co-ordinate jurisdiction, unless the crown be concerned: 
 Attorney- Geticral v. Hallctt, 15 M. & W, 97. 
 
 {t) For the law as to venue see note 11 to section 7 ; see also Peacock v. Bell d al. 
 1 Wnis. Saunders 73. If several causes of action, in themselves local, but which 
 arose in different counties, are joined together, the venue may be laid in either of 
 the counties: see sec', on 73. No venue need be stated in a declaration except the 
 one alleged in the largin: see Baydell et al v. Ilarkness, 4 D. & L. 178; aluo 
 R. G. pi. 4. But / al description, whenever requisite, must still be given in tl e 
 body of the decla ation: Mayor of Berwick-upon-Tweed v. Shanks, 8 Bing. 459; 
 Siimnons v. Lillystone, 8 Ex. 431 ; Clayton v. Beat, 8 L. T. N. S. 502; Richardion 
 V. Locklin, 6 B. k S. 777. Where wrong venue in a local action, and not oppa- 
 ■rent on face of declaration, see Boyes v. llewetson, 2 Bing. N. C. 575 ; Richards v. 
 Eaato, 16 M. & W. 244; Ilitchins v. Ilollingsworth, 7 Moore P. C. 228. 
 
 {u) If the declaration omit to show whether plaintiff sue in person or by attor- 
 ney, it will be irregular, and may be set aside: White v. Feltham. 3 C. B. 658; 
 Mmck v. Aorthivood, 2 U. C. L. J. N.S. 268; Kelly v. Carroll, 1 Ir.' 0. L. R. 192. 
 The application to set it aside should be made to a judge in chambers: see While 
 y. Fdtkam, 3 C.B. 658. Such an omission before this act was, however, held to be 
 no ground of special demurrer: Murphy v. Burnham, 2 U. C. Q. B. 261. Where 
 the plaintiff in the commencement of his declaration, declares without stating that 
 he does so by attorney, the court maj' consider that he is suing in person : Ih. 
 If the signature of an attorney be appended to the declaration, that shows that 
 plaintiff sues by attorney, and is not a repugnance of one part of the declaration 
 to another: lb. If the attorney's name be stated in the commencement of the 
 declaration, it is not necessary that it should be also subscribed: Crooks v. Datu 
 et al, 5 0. S. 141. But if the declaration be drawn up in a slovenly manner, the 
 court will direct an amendment: Murphy y. Burnham, 2U.C.Q.B. 261. It seems if a 
 declaration be ordered to be amended in the name of the attorney, that is sufficient 
 to amend the declaration filed without filing an amended copy : Hart et al v. Boyh, 
 6 O. S. 168. All persons, excepting married women, infants and idiots, can sue 
 and declare by attorney. Married women must sue with their husbands, infants 
 by prochein amy, and idiots in person. No attorney can be changed without the 
 order of a judge: R. G. pr. 4. The order may be granted without an affidavit: 
 In re Glasse v. Glasse, 2 U. C. L. J. 213. In case of the attorney dying, no 
 order is necessary: Ryland v. Noakes, I Taunt. 342. But notice of the appoint- 
 ment of a new attorney should be given to the opposite party before any proceed- 
 ings taken by such new attorney : lb. 
 
 {x) Misnomer i 
 ties may sue or be 
 collected in 1 Dov 
 defendant sued by 
 name, see note 4 1 
 true name, there c 
 
 . (,'/) To describe 
 irregular: Tory v. 
 
 {^) Every writ ( 
 section 24. 
 
 («} The sum to 
 expects to obtain. 
 Morris, 2 W. Bl. 13 
 a jiiiy did give lar 
 fuuut might be mad 
 ^y plaintiff as dam 
 f}'- 661; Baker 
 J'.'dgment may be 1 
 tioii 240. 
 
 ('') As to executi 
 ('■) Taken from 
 
 Mtmentofrule38 1 
 JV ■■ 'JervisN, 11, n 
 
s. 80.] 
 
 DECLARATION AFTER PLEA OF NON-JOINDER. 
 
 dred and (r.) 
 
 shall conclude as follows, or to the like eflFcot : 
 
 And the Plaintiff cluiins (a) , (or if the action is 
 
 hrumjht to recover spccijic yoods,) (b) the Plaintiff claims a 
 
 return of the said goods or their value, and for their 
 
 detention. 19 Vic. c. 43, s. 108. 
 
 86. (c) If after a plea in ubatement of the noii-joindcr of 
 iUiuther person as Defendant, the Plaintiff, withuut liavinj^ 
 
 101 
 
 (IS the case m<ii/ be,) (v) sues (io) CD., (.r) who has been 
 suiiimoncd (or arrested) (_y) by virtue of a Writ issued 
 on the day of , A.D. one thousand eight hun- 
 
 Fonn. 
 
 -, for (here state rauae of action) : And 
 
 Cdlirliisioll 
 lit clt'claru- 
 
 tillU. 
 
 Ciimmi'nce- 
 im^iit lifter 
 
 ((') An infant can only sue by prochein ami/: St. Westminster II. cap. 15. An 
 aiitlioi'ity to sue from the infiint to the prochein amy is unnecessftry: Morgan v. 
 riiorne, 'J Dowl. P. C. 228 ; see also Nunn v. Curlis, 4 Dowl, J*. C. 729 ; Lee.ch v. 
 CMilnim, 2 L. M. ife P. 614. The latter is an ofticer appointed by the court: 
 Fitz. Natura Brevium, p. 20. The distinction between a guardian proper and 
 prochein amy, is pointed out in Simpson et al v. Jacfcnon, Cro. Jac. 640. Tlio decla- 
 ration in any action by an infant may be as follows: " Venue. — A. B. by E. F. who 
 13 iiilmittcd by the court here to prosecute for the said A. B., who is an infant 
 within tlie ajje of twonty-one years, as the next friend of the said A. B., sues C. 
 1)., who has been summoned, &,c. 
 
 (w) "Complains of C. D." were the words used in the Rule H, T. 13 Vic. and 
 Eug. R. G. 15, M. T. 3 Wm. IV. 
 
 (z) Misnomer is no longer a ground for a plea in abatement: section 62. Par- 
 ties may sue or be sued in a representative capacity as executors, <fec. : see cases 
 collected in 1 Dowl. P. C. 98. As to the proper mode of declaring either whea 
 defendant sued by a wrong name, appears by that name or otherwise by his right 
 name, see note d to section 63. If the name mistaken be idem aonans with the 
 true name, there can be no objection : Webb v. Lawrence, \ G. & M. 806. 
 
 (//) To describe defendant as summoned when he was in reality arrested, is 
 irregular: Tory v. Stevens, 6 Dowl. P. C, 275. 
 
 (z) Every writ of summons and capias must bear date on the day when issued : 
 section 24. 
 
 (<t) Tlie sum to be here inserted must be sufficient to cover all that plaintiff 
 expects to obtain. The jury cannot exceed the damages so limited : Chevetey v. 
 Murris, 2 \V. Bl. 1300; I'ickwood y. Wright, 1 H. Bl. 643. It has been held where 
 a jury did give larger damages than the declaration authorized, that an amend- 
 ment might bo made : Tebbi v. Barron, 6 Scott, V. R. 837. If interest be claimed 
 by plaintiff as damages, it should be also included: see Watkins v. Morgan, C. 
 ji v. 6G1 ; Baker v. Brown, 2 M. & W. 199. The sum to be awarded by the 
 judgment may be awarded without any distinction as to debt or damages : sec- 
 tion 240. 
 
 [Ii) As to execution for the specific delivery of chattels: see section 300. 
 
 (c) Talien from Eug. Stat. 15 <k 16 Vic. cap. 76, s. 60. Substantially .\ re-en- 
 aetment of rule 38 E. T. 5 Vic, which was copied from Eng. rule 20 U. T, ' Wm, 
 IV: JervisN. R. 125. 
 
 I "1 -'' « 
 
IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 
 
 I.I 
 
 1.25 
 
 ^;; ^ Ilia 
 
 1.4 
 
 1.6 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 872-4503 
 
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 f\ 
 
 
 <^ 
 
 
 
 6^ 
 
 
 '*?> 
 
'<.-' 
 
 .^^ 
 
 
 >> 
 
102 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 87. 
 
 abntcment 
 for min- 
 Joindur. 
 
 Porm. 
 
 FonuR of 
 
 proceeded to triul on an issue thereon, amends by adding 
 the omitted Defendant or Defendants or commences another 
 action against the Defendant or Defendants and tho person or 
 persons named in such plea as joint contractors, (</) the com- 
 mcncerocnt of the declaration shall bo in the following form, 
 or to tho like effect : 
 
 ( Venue.) (e) A. B.. by E. F., his Attorney, (or in his own 
 proper person,) (/) sues (g) C D. (h) (the Defendant origi- 
 naUy named in the Summon$) who has been summoned {or 
 arrested) ( i) by virtue of a Writ issued on tho day of 
 
 A.D one thousand eight hundred and (J ) 
 
 and G. L «i.'j non-joinder of which G. H. the said G. D. 
 has heretofore pleaded in abatement, for, &c. (Jt) 19 Vic. c- 
 43. » 100 
 
 Sir 
 
 '■U 
 
 /vuis contained under letter (B) shall be 
 
 {ilpjl(|ir>>; I>, ^. . ' , 1 1 1.1 /• 1 1.1 
 
 f<)imi-iv.-.t sufhcicnt, anc t^Mse and the like forms may be used with 
 
 to i>« '" such modifications as may be necessary to meet the facts of 
 
 the case, (m) but a departure from such forms shall not 
 
 (rf) This plaintiff mijc^ht Lnve done before the C. L. P. Act, and may do stilL 
 He will by bo doing tvoid payment of costs : see note q to section 60. 
 
 (e) See note t to preceding section. 
 
 (/) See note m to preceding section. 
 
 (ff) '• Comploins of C. D." in rule 38 E. T. 6 Vic. and Eng. rule 20 II. T. 
 4 Wm. IV 
 
 (A) See note x to preceding section. 
 
 (() See note t/ to preceding section. 
 
 {j ) See note z to preceding section. 
 
 (k) As to when such pleas may be pleaded, see notes to section GO. 
 
 (I) Taken from Eng. Stat. 15 A 16 Vic. cap. 76, s, 01. 
 
 (m) The forma given in tho schedule are intended only as examples and not m 
 binding and invariable precedents. These forms state in the fewest words all 
 that is necessary to show a cause of action or ground of defence. They provide 
 for almost every case that usually occurs in practice, but may of course be modi- 
 tied to meet tlio special circumstances of any particular case : see Lowe v. IStteU, 
 16 M. A W. 380; also Padwicky. Turner, 11 Q. B. 124. When the legislature or 
 the judges draw up stated forms of pleading, parties to suits ought to follow as 
 fur as practicable tho forms giver : see Bailey et al v. Sweeting, 12 M. & W. 616. 
 The courts iu England hnve more than once been constrained to call the attc;>Mon 
 of the profession to the carelessness with which the forms given by the English 
 C. L r. Acts are followed: see Wilkimon v. Snarland, 10 Ex. 724. The act no 
 doubt affords great latitude in pleading, but it has not removed the necessity for 
 stating a consideration for uu agreement: Fremlinv. Uamilton et al, 8 Ex. 308. The 
 
s. 87.] 
 
 FOEMS or PLEADING. 
 
 103 
 
 render the ploadiog orroneous or irregular so long as the 
 substanoo ia expressed without prolixity, (n) 19 Vic. o. 43, 
 
 8. 140. 
 
 true coDHtraction (o put on the act is to ascertain wlictlior tlio pleading would 
 hiiTC buon good on general demurrer before tlio act : Itichard* v. /?eu 'i», 2 C. L. 
 H. 675, per Campbell, C. J. When a party complains of the violation of duty it 
 is not sufficient to charge generally a violation of duty ; the facts from wliiuii the 
 duty flows must bo averred : PoUi v. Plunkett, 9 Ir. C. L. R. 200. If the plead- 
 ing contains an averment of some act which it is not necessary to aver, in order 
 to sustain the action proof of such averment is unnecessary : Davit v. O'llara, 
 5 Ir. L. R. S37; see also Cavanagh tt al v. Morriton, 1 Fox <b Sm. 75. 
 
 (n) Prolixity seems to have been dreaded by the legislature when framing 
 tliis enactment. Nothing concise is bad if it indicate substance. No deviation 
 from the forms given shall bo injurious so long as the substance is preserved : 
 Fagg v. Nudd, 8 El. & B. 650, per Campbell, C. J. " If the act had proscribed 
 forms which was to be followed in all cases it might bo that any deviation 
 from it would hurt; but here the legislature has carefully provided that no 
 deviation from the forms shall be erroneous or irrecular, 'so long as the 
 •lubstance is expressed without prolixity :' " lb„ per Wightman, J. Tlie forms 
 are not obligatory : Leriie t. Johnstone, 10 Ir. C. L. R. 83 ; sec also Norton v. 
 Mnton, 7 Ir. Jur. O. S. 126. And yet it is right to observe that inasmuch as 
 tiie act gives forms, it is only proper though not compulsory that such forms 
 i^iiuuld bo observed. If the deviation be one of substance the pleading in which 
 it occurs will certainly be bad. Thus a declaration in an action lor freight, 
 stating "that defendants are indebted to plaintiffs for freight" for the convey- 
 ance of goods, Ac, has been held bad for not following the form given in tiio 
 scliedulo which contains the words " for money payable by defent^ut tu plain- 
 tiffs," and for not showing any debt due in prouenti : Place v. Polls tt al, 8 Ex. 
 ;o5. The defect held to be demurrable in this case is one that might bo 
 cured by pleading over : Wilkinson v, Sharland, 10 Ex. 724. But a deviation not 
 rnlnulnted to mislead is clearly not demurrable or otherwise open to objection. 
 Such has been held to be a count for money found to be due from defendant to 
 
 I>luintitf on an account stated between them, though the words " for money pny- 
 aMc by defendant to the plaintiff for" contained in tlie form given in the schedule 
 were omitted ; Fagp v. Audd, 3 El. i B. 680. This case proceeded upon the 
 supposition that the defendant had as much information from the form adopted 
 n.s from the form in the act. and that the omission to state tiiat " tlie money Ih 
 l>Avable" was immaterial, because the law implied aa much from its being stated 
 t(i\)e due on an aeeoutU stated. In other words it was held that the alicgHtion of 
 tlie money being due on an account stated was eouivalent to an allegation of tito 
 money claimed being payable, and consequently or a debt due in pr(esenti. Thou:;h 
 the decision may bo sustainable as to an account stated it does not follow that n 
 count framed for a money demand other than on an account stated would be gooil 
 it'itliout the words omitted in this case. On an account seated the law rniscs a 
 nroinib<e to pay on request, and no other can be substituted or superadded : see 
 Hopkins ct ux. v. Logan, 6 M. A W. 241 ; Lattimore v. Garrard, 1 Ex. 809 ; Roscorla 
 V. Thomas, 8 Q. B. 234 ; Kaye v. Button, 7 M. 4 O. 807 ; Elderton v. Emmens, 6 C. H. 
 174 ; Belcher v. Cook, 4 U. C. Q. B. 401. There may be a debt duo in prnmiti with 
 a solvendum in futuro. And consistentlr with the form used in Fagg v. iVi/f/i/, 3 Kl. 
 ii B. 650, if not on an account stated, plaintiff might sue fur a debt not payable at 
 tlio time of the commencement of the suit. In reference to this decision a learned 
 judge in a more recent case remarked that " there ought to be no equivalent," for iin 
 allegation such as was there omitted, " for the act expressly says ' these words money 
 payable, <bc., uhall precede money counts :' " WUkinstm v. Sharland, 10 Ex. 724, j)tr 
 
104 
 
 Declaration 
 in County 
 Court* not 
 Invalid be- 
 cauM of tite 
 Counti ex- 
 needing the 
 Juriadiction. 
 
 TBB COMMON LAW PROCEDURE ACF. [g. 88. 
 
 88' (o) In case the damogos laid at the conclusion of any 
 declaration in a County Court do not exceed the jutsdictioD 
 of such Court, but the sums mentioned or ciaiaied in the dif- 
 ferent counts of such declaration do io the aggregate exceed 
 the jurisdiction of such Court, iho declurati6n or any subse- 
 quent pleading shall not on that ground be subject to any 
 objection either by demurrer or otherwise, if the sum luij 
 10 each count respectively be within the jurisdtotion. (^p) 
 12 Vic. cap. 06, s 8. 
 
 
 ■ 4 
 
 AldorsoD, B. : of the same opinion was Parke, B. Though a pleading stating io 
 Bubstance all that the forms to the act contain may be good, yet it is difficult to 
 conceive how any pleading can be framed that will in femer words state what is 
 necessary either to show a cause of action or eround of defence. The omission of 
 a request to a count for work and labour renders the count bad : Corah v. Young, 
 6 Ir. C. L. R. 138 ; Oaam v. O'Ryan, 7 Ir. Jur. 0. S. 272. A plaintiff declared thus : 
 " R. D. by E. F. his attorney, sues D. M., who has been summoned, Ac" (stating 
 the process, as usual) " for money payable by the defendant to the plaintiff for 
 goods bargained and sold by the plaintiff to the defendant. Plaintiff then added 
 a second count on an account stated, and concluded, " and the plaintiff clainu 
 £i25." The defendant demurred upon the ground that it was not stated that the 
 goods were sold by plaintiff to defendant at his request, nor that the defendant 
 was indebted to plaintiff, nor in what amount, nor that the defendant owed 
 plaintiff any thing for the said goods and chattels. Held, declaration suflicient 
 and demurral frivolous : Davia t. Mueklt, 3 U. G. L. J. 116. A general alle- 
 gation that a party conveyed or assigned, held sufficient without stating the 
 mode of conveyance: Sloantv, Flood, 5 Ir. C. L. R. 75. In a writ of revivor 
 sufficient to describe plaintifi as assignee of the judgment without showing how 
 he became assignee : Stapleton t. Bergin, 4 Ir. C. L. R. 421. 
 
 (o) This provision relates exclusively to county courts, the jurisdiction of which 
 as to amount is limited: Con. Stat. U. C. cap. 16, section 17. 
 
 ( d) While plaintiff at the time the jurisdiction of a county court (district conrt 
 OS It was then called) was only £26 in causes relating to debt, covenant, or con- 
 tract, and £B0 in causes of debt or contract, on the common counts, where the 
 •mount was ascertained by the signature of the defendant, declared In assumpsit 
 upon three counts : 1st, upon a special agreement for £26 ; 2nd, work and labour, 
 £26 ; 3rd, account stated, £25 ; and concluded, " and thereupon the defendant, in 
 consideration of the premises respectively, promised to pay the said several sums 
 of money to the plaintiff, yet hath not paid any of the said monies, or any part 
 thereof, to the plaintiff's damage, of £49;" and defendant havin;^ pleaded to the 
 merits, and plaintiff had a verdict for £27. Utld, upon a motion in arrest of juui;- 
 ment, that though upon the face of the declaration the aggregate amount of the 
 sums claimed In the three counts exceeded the jurisdiction of the court, yet that 
 the court was not thereby necessarily ousted of Its jurisdiction : Jordan v. Man, 
 4 U. C. Q. B. eS. It was also held that the statement of damage to £49, v it. out 
 an averment that the claim was liquidated by the signature of the defend^int «.:'< 
 sufficient after verdict, and that though the verdict was In truth for £27 upon an 
 unliquidated claim, 'is plaintiff might still retain his verdict by remitting the £2 
 then excess of jurisdiction: Ih. whenever a verdict has been taken in a county 
 court for a sum beyond Its jurisdiction, the plaintiff may cure the defect by enter- 
 ing on the record a remlttur for all damages beyond the pecuniary jurisdiction of 
 
S9.] 
 
 CHANGE OF VENUE. 
 
 CHANGE OF VENUE. 
 
 105 
 
 SO. (c) The venue (/) in any action in the Superior provision if 
 Courts (f/) taay be changed accoiding to the practice now in ciiangwi" 
 force, (h) and notwithstanding a change of the venue, the 
 
 the court: Thoman y. Hilmer, 4 U. C. Q. B. 527. > denlaration such as that ia 
 Jordan v. Starr, 4 U. C. Q. B. 63, would now, it is apprehended, be clearly good 
 nnder the operation of the section here annotated as against any objection by 
 way of demurrer or ia arrest of judgment. 
 
 (e) This Bcction is a combination of our statute 7 Wra. IV. cap. 3, a. 14, and 
 C. L. P. Act 186'1, 8, 8. 
 
 {/) See note n to s. 7. 
 
 (f/) Of course, as county courts are local oourts, there can be no chniigo of 
 TCDue Bu long as the cause remains in the local court. But a writ of certiorari is 
 sometimes issued with a view to the renaoval of the cause into a superior court, 
 with a view to a change of venue, where there arc special grounds for the change. 
 The jiidi^e granting the writ has no power by the order for the writ to change 
 tlic vi'iiue; Tor the application for change of venue must bo asubstautive motion: 
 I'aUenoii v. Smith, 14 U. C. C. P. 626. 
 
 (A) The plaintiff is dominua litia, and, subject to the remarks hereinafter made, 
 13 entitled to lay the venue in a transitory action where he pleases : Kel/t/ v. 
 Cavetidigfi, 3 Law Roc. N. S. 67. The court will not deprive him of the right to 
 lay it where he pleases, unless there is a manifest preponderance of convenience in 
 A trial at the place to which it is sought to be changed : HelUwell t. Uobson ttal., 
 3 C. B. N.S. 761. In Dane v. Hopwood, 7 C. B. N.S. 837, Willes, J., referring to 
 HelUwell v. Hobion, said, " When the question arises again, perhaps that case may 
 require some consideration." But the rule laid down in IlelliweU t. Jlobton does 
 not appear to have been successfully impeached in subsequent eases : see Moor v. 
 Boyd ttal., 1 U. C. L. J. N.S. 184. The change of venue must in general be regu- 
 lated by the peculiar circumstances of each case : Oray v. Dill, 2 Ir. Jur. N.S. 62. 
 If it be made to appear that there will bo a great waste of costs in the trial of the 
 cause at the place where the venue is laid, and much saving of costs in trying it 
 at the place where it is sought to chanfj^e the venue, the judge is at liberty to 
 exercise his discretion in the matter, and may make the order if he sees fit : see 
 Smith v. O'Brien, 26 L. J. Ex. ^0 ; Grace v. Wilmar, 26 L. J. Q. B. 1 ; Moor v. 
 Uoyd tt al, 1 U.C. L J. N.S. 184; ileidv. Mangan, 1 Ir. Jur. N.S. 132 ; Allen v. The 
 Cork d' Bandon S. Co. 1 Ir. Jur. N.S. 189; Sufferiny. Dunbar, 1 Ir. Jur. N.S. 188; 
 Channon v. Parkhouae, 18 C. B. N. S. 341. The venue as laid b}' plaintiff ought 
 not to be disturbed merely because the cause of action arose elsewhere while the 
 balance of convenience cannot be determined : (yNeill v. The Trustee* of the Lime- 
 rick Butter Market, 6 Ir. Jur. N.S. 184 ; Bumford v. Greuler, 6 Ir. Jur. N. 8. 392 ; 
 Enriffht v. ITie Promoter Int. Co. 7 Ir. Jur. N. S. 158. Twenty-five witnesses and 
 a horse on one side against ton witnesses on the other was held not to be such a 
 preponderance as to induce the court to bring back the venue from the place 
 where the cause of action arose: Blachnan et a! v. Bainlon, 15 C. B. N.S. 432 ; see 
 also Bnmford v. Orenler, t Ir. Jur. N.S. 392. The court in considering the ques- 
 tion of convenience will not lose sight of the modern facilities of railway travel : 
 Doyle v. Hammond, 6 Ir. Jur. O.S. 306. The venue will not in general be changed 
 when the plaintiff is solvent and undertakes to bear any additional expense that 
 mny be occasioned by reason of its being retMUod : Banka v. (/Sullivan, 2 Ir. Jur. 
 N.S. 99. It is in the discretion of the judge either to change it or not as he may 
 tiiiiik conducive to justice on what are called ordinary grounds, t. e. that the cause 
 of action if any arose in the county to which the change is sought, and not ia the 
 

 .'■'t 
 
 J.' 
 
 ,1 *3l 
 
 it 
 
 100 TOE COMMON LAW PROCEDURE ACT. [s. 89. 
 
 proceedings shall oontinuo to be carried on in the office from 
 
 ft . 
 
 county where the vcnuo is laid : Crump v. Crrw, 4 U. C. L. J, 20. I'liiiiitid in 
 answer to an npplicntion for chnnfi^ on the ordinary i^roundfl may sliew Bpocial 
 i;roun(lM for its retention at tho placo wlioro laid: Jb, Tiiu vonuo may bu clumped 
 in a penal action: Greenhow tt at v. Parker, 31 L. .1. P;x. 4 ; and also In an inform- 
 ation in tlio nature of a ywo learranto: Clark v. lifjlna, 3 E. <& E. M7 ; but not 
 wlieru tlio crown is a party directly interested, without consent of the attorney 
 general : The Queen v. Shijnnan, 6 IJ. C. L. J. 19; see also Attomeif-Genernl to m 
 J'rines of Walei v. CroMtman, L. R. 1 Ex. 381. An application for change of venue 
 before appearance is irregular: J/oodv. Vronkrite, A rrao. R, 279; may bo made 
 by defendant at any time after declaration and before plea on the common aflidi- 
 vit: see Kennedy v. Lynch, 10 Ir. C. L. R. App. xliv; and should, if on common 
 ntlidavit, be made before issue joined : De Rothtchild v. ShiUton, 8 Ex. 603. K 
 after issue joined, special aifiiiavits arc necessary : see Youde v. Voude, 4 DowL 
 i'. C. 32 ; Ilodge v. Churchward, 6 C. B. 496 ; II hile v. Neeld, 30 L. A Eq. B(M, 
 C. P. 1865 ; Lewi$ v. Walteri, 1 Ir. C. L. R. 486 ; Corah v. Ward et al, 13 Ir. C. L. 
 R. App. xlii. Application to change on special grounds should not be before pies 
 pleaded: Stewart v. Johnttont, 4 U. C. L. J. 21. The common affidavit alleges 
 " that the cause of action, if any wholly arose" in tho county to which defendant 
 desires a change : De Rothiehild v. Shiltton, 8 Ex. 603. Tho common affidavit to 
 change the venue sho'^ld be made by tho defendant and not by his attorney, un- 
 less a sufficient oxcuso be shewn for not producing an affidavit by tlie defendant : 
 O'Reilly V. Bond, 8 Ir. L. R. 1 18. When defendant is under terms to plead " on tlie 
 usual terms," or to take "short notice of trial, if necessary," the venue will not 
 bo changed on common affidavit : Brettargh et al v. Dearden, McC. «k Y. 100 ; Clultt 
 V. Bradley, 13 C. B. 604 ; Jackson v. Kidd, 8 C. B. N.S. 354. Venue not changed 
 at instance of defendant, in an action on a bond where application made on tlie 
 common affidavit : Lotting v. Homed, Tay. U. C. R. 83. Not changed on com- 
 mon affidavit, in an action against carriers: Ham v. AfcPherton et al, M T. 6 Vic.; 
 MS. R. & 11. Dig. " Venue " 8. But changed on the common atFidavit an action 
 of replevin brought for the recovery of goods and chattels detained I'or a caujo 
 other than o distress : Vance et al v. Wray, 3 U. C. L. J. 69. So in an action for 
 use and occup.ition : Smith v. O'Brien, 26 L. J. Ex. 30. It is a good answer tu 
 the common affidavit that the cause may bo more conveniently tried in the county 
 where the venue is laid : Carruthcrt v. "Dickey, 2 U.C.L.J. 186 ; Vance et al v. Wray, 
 8 U. C. L. J. 69; Smith v. O'Brien, 26 L. J. Ex. 30. When the common atlidsvit 
 is answered by the plaintiff' on special matter, tho court will exercise its discretion 
 on the whole cause before it : Rott et al v. Napier, 30 L. J. Ex. 2. Not changed from 
 A. to B. on application of defendants, who were more numerous than plaintiffs, 
 and intended to bo witnesses upon their own behalf: Rom v. Cook et al, 2 Cliani. 
 R. 204. It is no ground for changing, thot a person required as a witness at one 
 assize will be an associate at another, and that from the distance ho cannot attend 
 both : Smith v. Jackson, M. T. 1 Vic. MS. R. & II. Dig. " cases omitted. Venue." 
 The more fact of newspaper discussions, or of tho existence of political feeling or 
 prejudice, is no reason for a change of venue. " It is not an uncommon thing for 
 parties to hove an exaggerated notion of the attention paid to their own coses, or 
 for newspaper editors to attach an over estimate to tho effect produced by tlieir 
 own paragraphs:" Seely v. Ellison, 6 Bing. N. C. 231, per Maulo, J.; soo furtlier 
 DowUng v. Sadleir, 8 Ir. C. L. R. 603; Walker v. Brogden, 17 C. B. N.S. 571. If 
 the case be one requiring a L.rgor amount of intelligence and a more careful solu- 
 tion than is usually possessed by a common jury, the defendant's course is to 
 obtain a special jury: Moor v. Boyd tt al, 1 U. C. L. J. N. S. 187, per Richard», 
 C. J. When the venue was changed on the usual affidavit, a motion to retain it 
 on the grounds of the partiality of the jury, and that the defendant might exercise 
 undue influence over the jurors, was refused : 0' Shaughnessy v. Lambert et al, 1 Ir. 
 L. R. 104. In an action for libel, the court refuaod to change the venue on tlie 
 
89.] 
 
 CIIANQE or VENUE. 
 
 107 
 
 LTonnd that the plnintifT was a county aurvoyor, andVas on that account non- 
 <»>»H(>(I of consiilcrablo intluonco with persons 'likely to boon tho jury: Hall v. 
 MeKfrnitn, 2 Ir. L. R. 860. In on action for libel, tho court rofuscu to chani^e the 
 Yt'iiiK- to the county in which tho action had wholly arisen, althoujrh all tho wit- 
 ni!"<t'o on both sides resided there, tho |dnintifT having sworn to tho iirevalenco of 
 (xcitomcnt on thu subject there, and altiioujrh he did nut deny but that an inipar- 
 tiiil trial nilufht bo had there: Oallaher v. Caveniii*h, 8 Ir. L. R, 376. AVlu'rc on 
 n motion to change tho venue from Dublin to Galwav in an action for n libul pub- 
 iMiwl in a Galway newspaper, and it a|ipcared on tue eve of tho trial letters cnl- 
 ciilati-d to excite n prejudice in tho plaintiff's favour were published in a Dublin 
 ni'W!!|)aper, and on the ^ther hand that a report of certain proceedings reflecting 
 iiijunuuitly on tho pla. itifT's character, imblishcd in the Galway newspaper, had 
 been rend from tho altars of many chapels in Galway, tho court, under all the cir- 
 CHinstancos, made an order changing tho venue to n third county : Riidtr v. Burke, 
 \\) Ir. L. R. 471. Tho venue was clianged from tho county of the city of Cork to 
 tho county of Cork, uuon tho grounds that the plaintifT had considerable local 
 intluonco in tho city or Cork, and that tho case liad been very much talked of 
 nm(in:{8t those likely to be impanncllcd as iurors: Carmiehatl v. The Waler/ord 
 and Limerick R. Co. 1 3 Ir. L. R. 322. V hero an application by defendant to 
 (lianu;o tlio venue had failed, and plaintiff publisiied a garbled nccuiint of tho 
 npiilicntion in a local newspaper, with tlie intention of prejudicing the jury, the 
 cuurt, on a second nnplication on renewed materials, made an order for the chango 
 of venue: O'Shaughnefty v. The Vi'cst of England Ini. Co 2 Ir. Jur. O. S. 144. 
 Venue changed on an nftidavit of tho asf<ignco of plaintifT, stating that he h->d been 
 very actively engaged in a late election for tho county of Louth, and that a strong 
 feeling existed in tlio county, and three juries had been ».lready unable to agree in 
 tlie eause: Dotvdall v. Doivdall, 1 Law Rec. 0. S. 355. So venue changed where 
 two nbortivo trials in nn action of ejectment had taken place, and it was shown 
 tiint u^ruut excitement and prejudice prevailed against si-ine of tho parties: A'ron 
 V. Kfon, 3 Law Rec. N. S. 137. But in such a case it must clearly appear that 
 tlic adverse verdicts are attributable solely to such excitement and prejudice: 
 J>ichon V. Lodge, 1 Ir. L. R. ICl. In nn action of debt for tithe composition, tho 
 eourt rcfu-sed to change tho venue, it appearing that from tho state of political 
 excitotncnt in the county to which the defendant sought to remove th* case n fair 
 triu! could not be had: Anon, 4 Law Rec. N. 8. C2. Venue changed in un action 
 fur assault against a magistrate, the alleged assault being an attempt to f<iippre6s 
 im Orange procession, under tho Yearly Processions Act: Stexcart v. Lynur, 1 Ir. 
 I., U. 19'J. Where, in an action fur false iniprisunmeut, the venue had been changed 
 on the application of tho defendants, the court, on the application of plaintitr, 
 ordered tlie venue to bo brought back to where it had been uriginnlly hiid, there 
 liiivin<!; been twu aburtivo trials in tho place to which it had been changed, and 
 tlieru being good reasons to suppose that a satisfactory trial could no^ be had in 
 tlmt }ilace: Kelly v. The Londonderry and EnnitkiUen k. Co. 3 Ir. Jur. N. S. 302 
 The circumstance that the defendant was a wealthy trader and director of a local 
 Itiuik, and as such possessed great influence among those persons who served as 
 jurors, held not sufHcient cause for a chango of venue : Reynold* v. Power, Smythc, 
 \">'>. So in an action for libel, a change of veauo wos refused on the g»'ound that 
 llie plaintiff was a county survej'or, and was o i that account possessed of influence 
 Willi jurors: Ilall v. McKernan, 2 Ir. L. R. 369. The venue was changed in an 
 action on n fire policy upon an affidavit of tho materiality of a view of the premises 
 burnt: McDonnell v. Varr et al, Hayes, 375. Vonuo not changed from the county 
 of tlic city of Dublin, upon the ground that the attendance of tho treasurer of the 
 county to which it was sought to change the venue was necessary : Cronin v. Pur' 
 c'll, \ Ir. Jur. N. S. 10. Where the plaintiff resisted an application to chango the 
 venue, and stated in her afHduvit that one of the witnesses had made himself busy 
 in intiucncing jurors, and boasted that the plaintiff had no chance of success, the 
 cuurt refused to listen to such statements, and changed the venue on terms : Crooke 
 
108 
 
 THB COMMON LAW PROCEDLRE ACT. 
 
 [8. 89. 
 
 « 
 V. Rice, C Ir. Jiir. N. S. 808. Refused wliorc dcfundnnt was proprietor of a local 
 nowspnpor havinc considerable influence in tlio county, and nad since commencfr 
 ment of action evinced a disitoftlion to exercise liis influence to tlie prejudice of 
 
 Slaintlff: Walker v. Drogdin, 17 C. B. N.8. 671 ; contra, Kelly v. Cavendiih, 3 Law 
 ',ee. N. S. 67. But the court intimated that it would interfere if defendant 
 should, before the trial, publish anything in relation to the matter of the action 
 reflecting on plaintiff: lb. Held a good ground for change that the attorney fur 
 defendant was under sheriff for the county where the venue was laid, and had 
 made it a special jury case: Hilton v. Green, 10 W. R. 627; see also MeLoughUn 
 V. The Roi/al Exchange Att. Co. Ir. L. R. 10. So where defendant was county 
 judge of tiio county : Anon, 4 Prac. R. 310. Not sufficient that the question to be 
 tried was the alleged insolvency of a member of parliament of considerable influence 
 in the cotmty where the venue was laid: Salter v. McLeod, 10 U. C. L J. 70. No 
 ground for change that either party has retained the most eminent counsel on the 
 circuit, unless done oppressively: Curtit v. Lewie, 12 W. R. 951. Nor the fact that 
 counsel retained by one of the parties spealcs the Ooilic language, which is the 
 mother tongue of many of the jurors: }foor v. Boyd et at. 1 U. C. L. J. N. S. 187. 
 The frequency of sittings of niei privi in London has been held not to be a sut!! 
 cient ground for change of venue : Cole v. The Ilitll Dock Co. 1 1 W. K, 284 ; see 
 also lienham v. Wetherel, 11 W. R. 66. In applying to change the venue it is not 
 necessary for defendant to swear to merits : JUcDermott v. Jameion, 1 Ir. Jur. N, 
 8. fil. But the venue will not bo changed unless the par^y seeking to change it 
 states explicitly in his affidavit that he intends to examine witnesses and that their 
 testimony is material: Donnelly v. Darey, 2 Ir. Jur. N. S. 187. The number of 
 witnesses should be given in the affidavit: BuHeed r. Raymond, 7 Ir. Jur. O.S. 22; 
 Harnett v. Torrent, 1 Ir. L. R. 116. And if possible the names: Blett v. Ntil, 
 12 Ir. L. R. 618 ; and place of residence : Diamond v. Oray el al, 6 Prac. R. 83. It 
 is in general a good answer to show that plaintiff has witnesses in the count; 
 where the venue is laid: Wation v. Kennelly, 3 Ir. L. K. 214; Doyle v. Ham- 
 mond, 6 Ir. Jur. 0. S. 806. If all the witnesses for defendant be shown to 
 reside in the county to which the change is sought, and none for the plaintiff 
 in the county in which it is laid, ana no ground for believing that there 
 cannot be a fair trial in the county where the witnesses reside, the venue 
 will bo changed: Larimer v. McElrath, 6 Ir. L. R. 688; Wilton v. Thompnn, 
 1 Ir. Jur. N. S. 187. An application to change the venue to a county in 
 which all the witnesses resided, except one of plaintiff's witnesses, granted, 
 the defendant undertaking to pay the additional expense of the latter witness 
 to the place of trial: Blacker v. Hanlon, 6 Ir. Jur. ( S. 39. The refusal 
 of the judge appointed to hold the assizes to try the same is good ground: 
 3/eDonell v. Provinrial Int. Co. 6 U. C. L. J. 186; Ham et ux. v. Lasher et al. 
 10 U. C. L.J. 74. So where defendants, sued by the municipal corporation uf the 
 county of Ontario, applied for a change of venue to the county of York, upon 
 t!ie grounds that as the municipal corporation of Ontario were plaintiffs all the 
 inhabitants of that county were interested, the change was granted upon payment 
 of costs, and upon the understanding that the defendants would pay the extra 
 expense of mileage incurred fbr plaintiff's witnesses in consequence of the change, 
 and in the event of defendants succeeding undertaking that they would not t^x 
 against plaintiffs such extra mileage of their own witnesses: The Municipal Counch 
 of Ontario v. Cumberland et al, 3 U. C. L. J. 11. The same terms were expressed 
 in a case where the change was ordered in consequence of the refusal of a judge 
 upon good grounds to try the cause : Ham et ux. v. Lasher el al, 10 U.C.L.J. 74. The 
 costs of the application to change the venue when successful are often made cost) 
 in the cause : Oeary t. Warren, 6 Ir. L. R. 426. Where the motion at instance of 
 defendant failed the costs were made costs in the cause to the plaintiff, but in no 
 event to defendant : Shaw v. Harris, 7 Ir. Jur. O. S. Ill; Prosser v. CudJit, 1 Ir- 
 Jur. N.S. 106; and in one case wholly refused to plaintiflT though successful in his 
 rosistance to the application, because of uimocessary and improper statements iu 
 
g. gg.j CnANOB OF VENUI. 
 
 which the first process in the action issued; (<) but the 
 Court or any Judge Q ) may, (Je) on application of either 
 party, order the issue to be tried or damages to be assessed 
 ia any other County th?.n that in which the venue has been 
 laid, and for that purpose may order a sas;gcation to be 
 entered on the Record, that the trial may bo more conve- 
 niently had or damages assessed in the County where the 
 same is ordered to take place. (/) 19 Vic. c. 43, s. 8 ; 7 Win. 
 IV. c. 3, 8. 14. 
 
 109 
 
 his affidavits : Lynch v. CotiHolIt/, Ir. Jur. O. S. 245. Tho court will soUIom 
 interfere with tlio discrutiuiiary power exorcUeil by a iudgo in cliumb tra, wliero 
 tlio nffi Jnvits boforo him are f<pecial : Btyav. Forbes elal, 1 3 C. B. G U ; Vartioriijht 
 V. Front, 8 H. dc N. 278 ; Schiuler et al v. Wluelwright, 8 C. B. N.S. 383 ; Pen/iallow 
 it id V. The Mertey Dockd: Harbour Co. 29 L J. Ex. 21 ; SeobU y. Hetuon, 9 U.C. L..I. 
 131. Tlio better course appears to be to apply at chambers to bring back the venue 
 upon fresh affidavits : Brown v. Clifton, 10 W . U. 86. Tho plaintitf will not in general 
 be nlluwed to change his own venue to a county in which he might in tho first 
 instance have laid it : Burton et al v. Nowlan, A U. C. L. J. 20. Nor will he bo 
 aliuwL'd to change in order to avoid tho consequences of his own delay or laches : 
 Ciwk» V. Uoiue, 8 0. S. 308 ; Smith v. Cotton, 1 U. C. Q. B. 397. In order to ex- 
 pedite the trial of a cause where plaintiff swore that otherwise he would probably 
 lose his debt, a change was order : Mercer v. Voght elal, 4 U.C.L.J. 47 ; Bleakley 
 V. Eaiilon, 9 U.C.L.J. 23; see ftlo»< Frazery. SJwardt, 6 Ir. C.L.R, 640. So where 
 the venue was by mistake laid in the wrong county : Richardson v. Daniels et al, 
 8 L'.C.L.J. 205. Plaintitfs application should be properly an application to amend 
 his declaration : Crawford v. JiUchie, Tay. U. G. U. 84 ; boe d. Crooks v. Cummiug, 
 3 U.C. Q.B. 65; Ward et al v. Sexsmith, 1 Prac. R. 382; but see Vattffhan v. Hubba 
 tt al, 1 Cham. R. 76. Affidavit, by whom to be made, in such cases : Williams v. 
 Uigi/K, 6 M. dc W. 133. When change of venue is sought by plaintiff, he should 
 puy tho costs of the application : Hewitt v. Hewitt, 3 Ir. C. L. R. 222 ; Comerford v. 
 IhUj, 1 1 Ir. C. L. R. 62. No venue can be changed unless upon consent uf par- 
 tics without an order of tho court or a judge, after a rule to shew cause or judge's 
 summons: R. O. pr. 19. However simple and common the affidavit may be, if nn 
 onler bo made in pursuance of a rule or summons upon which the opposite party 
 mny be or has been heard, it ia a special order within the meaning of the rule : 
 Bi'ijg v. Forbes et al, 13 G. B. 616, per Maulo, J. The object being, to obviate the 
 necessity of resorting to the clumsy expedient of bringing back the venue upon an 
 undertaking to give material evidence ia the county where the venue was origi- 
 nally laid: Chtlee v. Bradley, 13 C. B. 608, per Maule, J. Venue not clianjjed by 
 rule of court, judge's order, and service alone. It must be in fact altered : /Jnriihy 
 V. Hornby, 3 U. C. Q. B. 274. But plaintilT ia bound by service of order, and if 
 change necessary he miist make it: Cleghorn v. Carroll, 14 U. C. Q. B. 480. 
 
 (i) All proceedings as a rule must be carried on in that office from which first 
 process issued. 
 
 (j ) Court or judge. Relative powers : see note to to section 48. 
 
 (k) May — discretionary : Con. Stat U. C. cap. 2, s. 18, sub-s. 2. 
 
 (/) This is the practice in local actions : Ham et ux. r. Lasher et a/, 10 U.C.L.J. 74. 
 It is one that has for a long time prevailed in criminal cases : bae Arch. Crown 
 lYactico, 66. The form of suggestion may be the same mutatis mutandis as that 
 followed in criminal cases : see The King t. Hunt et at, 3 B. dk Al. 444. In a local 
 action it is not obligatory to order the trial in the next adjoining county if on 
 
u 
 
 1^ it^ 
 
 110 
 
 Hlsnntitro tit 
 CoiinHcl imt 
 
 Tlini' r>r 
 iilcailiiiK I 
 bur Wllrll 
 
 TUE COMMON LAW PROCEDURE ACT. [s. 00, 01 
 
 ri-K.\8 AND HUUHKQUKXT PLEAmNCiS. (m) 
 
 00. (n) The signaturo of Counsel Hhall not bo required t« 
 any pleading, ('<) nor shall any wager of luw bo allowed, (uo) 
 19 Vic. 0. 43, B. 134 ; 7 Wm. IV. c. 3, b. 10. 
 
 01. (p) In caseB where the Defendant is within the juris 
 diction, (7) the time for pleading in bar, (/*) unless extended 
 
 view of nil tho circtim6tnncc8 of iho cnso a nlmn^o to a county nioro reinoto b« 
 duoinod moro convenient or desirable : Jlwn ct ux, v. Lather tt al, 10 U.C. L.J. li. 
 
 (»n) Tho essential rules of plcndin);; nro in no wiso changed by tho net : tat 
 Ilohnea v. li'ipffe, 22 L. J. Q. U. 301 ; MeUner v. Jiotlon, t» Kx. fil8. And thoiich 
 tho courts have liberal powers of nnicndinvnt under section 222, yet it is doubtml 
 whether these powers can be so far exercised as to enable a defendant to put 1 
 dofonco upon the record ditforing from that by him first pleaded : see Mitchell et\a 
 V. CroMweller tt al, 22 L..I. CM*. 100. The pleas upon the record must show a good 
 " ground of defence," or they will bo open to demurrer : section 1 20, The factj 
 necessary to sustain the defence must bo stntud in a clear and distinct manner. 
 It has been held that if defendant sued by a oor;)oration plead over and take no 
 exception to the declaration tliut the court cannot take judicial notice of the want 
 of k'lufal authority in the plaintiffs to sue in tlieir corporate capacity : Bank of 
 liril'mh N. A. v. Slurwood, U. C. (i.IJ. 2i;i. Pleas on the face of them not idcnti- 
 rted with the cause, by being intitU-d, A'c, have been held defective : Shore v. Shun, 
 8 O. S. 170, note a. ■ Now they must bo pleaded according to the directions laid 
 down in section 90 of this act. Pleas, if tiled, though not served, will be suffi- 
 cient to jirevont plaintiff signing judgment: Mackinnon y.Johmon, .1 O. .S. lO'A 
 And thougli pleaded by a person who is not an attorney, it seems they are nut 
 upon that account null : Hill v. M'dU, 2 Dowl. 1*. C, C'.iO, 
 
 (h) First part taken from Eng. Stat. 16 A 16 Vic. cap. 76, s. 85, Substantially 
 ft ro-ennctment of our rule IJi E. T. f> Vie. : Cam. Rules 23. It has not at any time 
 been tlie practice in this province to have pleadings signed by counsel. Tliev 
 hdve been always signed by tho attorney in the cause or party in person as the 
 case might require. 
 
 («») In Englond the court in one case allowed a spcciid case to bo set down for 
 argument, which though signed by the counsel for defendant was not signed by 
 the counsel for plaintiff, who intended hims(>lf to argue the case in person : Udne^ 
 V. Hast India Co. 13 C. B. 742. The signature of counsel to tnotio7ia in court is of 
 course still necessary. 
 
 {00) Waffcr of law. So called because the defendant put in his sureties that at 
 such a day he would make his law, that is, take the benefit which tho law allowed 
 him : 3 Back. Com. 341. It was obsolete even in the time of Blackstone, but was 
 attempted in a modern case : King v. WtUiams, 2 B. & C. 638 ; and is uuw by 
 above statute cxpressl3' abolished. 
 
 (/)) Taken from Eng. Stat. 15 dk 10 Vic. cap. 76, s. 63. Substantiolly a re-en- 
 actment of rule 10 E. T. 6 Vic. and U. C. Stat. 2 Geo. IV. cap. 1, s. 5. 
 
 (q) As to defendant without the jurisdiction, plaintiff after service of summons 
 is at liberty to proceed in such manner and subject to such conditions as to the 
 court or a ]udge shall seem fit : see sections 43, 44, 45. 
 
 (r) A plea in bar may be defined as one which shows some ground for barring 
 or defeating plaintifiTs action. It is, in short, a substantial aud conclusive answer 
 to t!ie action. 
 
g. 01.] 
 
 NOTICE TO PLKAD. 
 
 Ill 
 
 by the Court or a Judge, (») aliall bo eight days, (J) and a '^Ijf,"'',','",',',!.'* 
 notice requiring the Defendant to plead in eight days, other- JiriHciirticn. 
 wise judgment, (u) may be indorsed on the copy of the 
 declaration served or be delivered separately, (v) and in cases 
 
 {») Tlio courts liBVO always hail power, upon motion, to grant a dufontlnnt 
 longer tlino to put in hia pica tlinn that liniitou by tho practice of the uuurt. Tliu 
 pwiTR nro now usually ontrunted to a judge in chambers : ace note to to section 48. 
 In one va^o a twelve months time was granted ; Hunt v. Barclay, 3 Dowl. I*. C. 640. 
 Till! nii|ili('nti()n for further time to plead sliould be made before tho time when pluin- 
 tiflf would be entitled to sign judgment: Otliutll v. IJ'Aeth, linrncs, 254 ; JJuriiett v. 
 Xtvtoii, I Chit. U. «89 ; Cahe v. lArrtl LylMton, 2 W. Bl. R. 054 ; Vuml>crle^/e el al 
 r. Carler, 6 M. A U. 748. liut if tho summons bo returnable before judgment signed, 
 jmlsjiiii'iit signed while tho parties are attending tho judge would be irregular: 
 Al'tniellii/ V. I'aton, Scott, 68«; see also W'elU v. Secret, 2 Dowl. P. C. 447 ; 
 Spciu-tlfi'/v. Shouh, 5 Dowl. P. C. 6(52; Barton v. Warren, 14 L.J. Q\\. 312; Dalfy 
 V. ArmiUI, 1 Dowl. N. S. 938 ; (J ten v. Iahcis, 8 Ex. 132. The application may bo 
 nmdo tliDUgh previouslj* n " peromptory" order for further time Imd been obtained 
 l)y coiis'-nt: JJeazlet/ v. DaUcy, 4 D. «k L. 271. AVliere an order was for four days' 
 time to plead, omitting the word "further," held that tho time should be com- 
 puted from tho date of tho order and not from the expiration of the original time 
 to pioiiil : lAine v. Pantonn, 6 Dowl, P. 0. 359. If defendant's summons be (lis- 
 nii.«sed and the time for jileading have exinred, defc ndnnt will not be entitled to 
 more time for pleading than tho rest of tho day on which tho summons was dis- 
 missi'd: Mengenx v. I'trry, 15 M. «t W. 537, contirined in Evan\ v. Senior, 4 Ex. 818. 
 
 (/) It has been held that defendant is entitled to eight days to plead to a new 
 nssiirmiii'iit : Ungcr v. Croxhi/, 3 O. S. 175. And that after a demand of repiira- 
 tiuii iiluiiititT has ci^ht days to reply: Jioblnnon v. ilcGrath, H. T. 2 Vic. M.S. 
 I!. «t II. Dig. "Practice," I. 10. Suiulny, though o <//'<« non, if neither the tirst 
 nor last of tlio eight days, is counted : ^hochridije v. Irwin, Dowl. P. C. 126. In 
 ooiniiiiiiiig tho eight days allowed to plead, the lirst and last dn)'8 are iiiclusivo 
 unless llie last day bo n dicH non : Moore v. the Grand Trunk Jiaitway Co. 4 U. C. 
 L. J. 20. Tlio day of service of tho declaration is reckoned as one of the eight 
 (iays for pleading : /A. When defendant obtains a rule or summons which slays 
 tli(; plaiiitiir's proceedings, he is entitled to have n reasonable linio allowed him 
 for the purpose of taking his next proceeding: JItiffhes v. ]\'alden, 5 li. it C. 770, 
 note, per Abbott, C. J. And the whole of the day on which the rule or sumiuons 
 was dispo.sed of is no more than a reasonable time ; lb. But where defendant, 
 having obtained an order for time to plead, took out a summons fur particulars 
 wliiuii wero di8mis,sod after the expiration of the timo given for ]>leadiiig, he was 
 iicld only entitled to the remainder of the same day for pleading : Moiycnn v. I'erry, 
 1.") .\I, »t \V. 637; Evans v. Senior, 4 Ex. 818. A detendant obtained a judge's 
 crdir for leave to plead several matters, but at tho time the order was oblniiied 
 was not enabled to draw up the rule, the rule office being closed, held that tho 
 time for pleading having been obtained, and no extension of time having been 
 obtained, judgment signed on tho morning of the following day was regular: Gkii 
 V. Lrwis, 8 Ex. 132. Judgment signed for want of a plea on the day that a sum- 
 mons for security for costs was discharged, and summons to plead scvcrftl pleas 
 made absolute, was set aside as irregular though tho time for pleading had 
 expired: Bean v. Thoinj)son, 4 Prac. R. 301. 
 
 {«) Judgment cannot, it is apprehended, bo signed if the pleas are in the office 
 and tiled, though not served. 
 
 (i') Tho notice to plead, if not delivered with the declaration, may bo delivered 
 liny time after tho declaration: Anon, 2 ft'ils. 137; see also West v. Radford, 
 Burr, 1462. 
 
112 
 
 Notice to 
 
 |ili'a<l 
 
 •ufflfleut. 
 
 TDK COMMON LAW PROCEDURE ACT. [s. 02. 
 
 in the County Courts the deolaration, and all pleadingi 
 and notices requiring to be served, may be aerved in anj 
 County, (to) 19 Vie. c. 43, s. 112. 
 
 09- (x) A notice requiring the opposite party to plead, 
 reply, rejoin, or otherwise, as the ease may be, within eigbt 
 days, otherwise judgment, shall be sufficient without sdj 
 rule (y) or other demand ; (z) and such notice may bo deli- 
 vered separately or be indorsed on any pleading which the 
 other party is required to answer, (a) 19 Vic. c 43, s. Ill, 
 
 
 (u>) The conntj courts, though local so for as the place of holding the courti 
 are concerned, and thouirh restricted as to pecuniary amount of jurisdiction, are 
 for service of papers, Ac, territorially co-extensive with the superior cuurti 
 of law. 
 
 (z) Taken from Eng. Stat. 15 & 16 Vic. cap. 70, s. 62. Founded upon tlie fint 
 report of the Common Law Commissioners, section 00. 
 
 (y) Rules to plead were made unnecessary by old rule 4 E. T. 11 Geo. IV. tod 
 rule 10 £. T. 5 Vic, and demands of plea were thereby substituted. 
 
 (z) Demands of plea are now made unnecessary, and notices to plead subiti- 
 tuted. The notice, if indorsed, mav be in the followinc form : " Too defendant 
 is to plead, reply, Ac., hereto in cigfit days, otherwise judgment." If not indorsed 
 the nutico may oe in the same words, but intitled in the court and cause, and 
 both dated and signed bv tli i attorney serving the same. A notice thus : " To 
 
 plead in days has ueen held to be a notice to plead according to the prat 
 
 tice of the court and within the time limited by the rules of the court : liiftr- 
 man T. Langellt, 2 B. A P. 863; see also Collini v. Rose, 6 M. A W. 194; Ranrn 
 V. Duncomb, 2 D. A L. 88, It is doubtful whether such a notice would not now 
 be set aside as irregular or amended at the costs of the party who served it 
 Where the time limited in the notice to plead was less than that allowed by the 
 practice of the court, judgment signed by plaintiff for want of a plea, thougb 
 signed after the time limited by the court, was set aside : Braty v, Baldock, Uarnes, 
 802. But whore the time given was greater than that allowed by the court, 
 defendant wou held entitled to the whole of the time so given : Solommuon el al r. 
 Parker et al, 2 Dowl. P.O. 406. These cases it is apprehended will apply to replica- 
 tion, (fee., and other pleadings subsequent to plea : ninterbottom v. Lea, 2 Ex. 325, 
 No pleading can be filed during vacation : see section 83. An irregularity in a 
 notice to plead may be waived by defendant taking out a summons for further 
 time to plead : Pope v. Mann, 2 M. & W. 881. Indeed the want of a notice may, 
 it seems, be waived by defendant's conduct, for instance — if he obtain an order 
 for time to plead: Peareon v. Reynold*, 4 East. 67 i ; see also Niaa t. SpratU), 
 4 B. ifc C. 886. Even a summons for time to plead, obtained by defendant, may 
 be held to be such a waiver : Bolton v. Manning, 6 Dowl. P. C. 769, led qu ; see 
 Decker y. Shedden, 8 B. <b P. 180. But a summons obtained by one of two defen- 
 dants who appear by separate attorneys will clearly not affect the rights of the 
 remaining defendant : SKouler y. Stoakei et al, 2 D. <fe L. 3. No judgment for want of 
 a plea can be signed as a general rule without a notice to plead : see £fea<A v. Ron, 
 2 B. «S( P. N.R. 223 ; Fenton y. Amtice, 6 Dowl. P.O. 113. It has been held that a 
 demand of plea cannot be served before declaration filed, however short the time 
 may be : Read v. Johnton, Tay. U. C. B. 489. 
 
 (a) If not delivered with the declaration, may be delivered at any time within 
 twelve months after declaration : uee note v to section 91. 
 
18. 98, 04, 95] 
 
 rOBMAL ALLKOATI0N8. 
 
 118 
 
 9S. (&) Express colour (e) shall not bo Decessary io any ExproM 
 
 . •. / IN in tr* Kt tin I'liloiir mine* 
 
 pleading. (</) 10 Vic. o. 43, s. 118. 
 
 rvitiwry. 
 
 94- (0 Special traverses (/) shall not bo necessary in Ami ni^vM 
 wj pleading, (.y) 10 Vic. c. 43, s. 114. 
 
 Q«S. (/() In a plea or subsequent pleading, it shall not be crrtain 
 necessary to uso any allegation of aetionnn nun or actionem luT\,n"^J'n 
 vUtrm non, or to the like effect, or any prayer of judgment; ""^ '*''''*' 
 
 1 Buboti- 
 
 efeodant 
 
 Indorsed 
 
 use, and 
 
 Ut: "To 
 
 .he pra^ 
 
 [: ififfT- 
 
 Ramn 
 
 lot now 
 
 irved it 
 
 by the 
 
 though 
 
 UtrDca, 
 
 je court, 
 
 replica- 
 
 1 Ex. 825. 
 ■ity in i 
 further 
 ice maj, 
 in order 
 Jproli«i/i 
 Int, may 
 qu; see 
 fo defen- 
 , of the 
 want of 
 
 y.Rott, 
 Id that a 
 the time 
 
 (ft) Tnkon from Enif. Slat. 15 A 1 ft Ylc. cap. 7«, s. «4. Founded upon the first 
 report of tlie ('Uiumou Law Cuinnusaioners : sectiuii 8U. 
 
 (r) IWfurc this oct it vas a rtilo that picadincs ahouUl not be argumontntivo. 
 Thi« ^'iive riBO to what was called cxprces culiuir. TIiub, if to a dcclnrntion 
 BtBtiri)!; that plaintiff was nosBCBncd of u hotiBe, the dofi-ndnnt was in his pica to 
 rtato tliHt thu houBO was his, the pica would havu been held bad ns being nn 
 nri;mnentHtivo and indirect denial '^ *' " Btatetnent In the declaration thnl the 
 h(iU!)L> wns tho house of tho plaintiff; but if the defendant were to state and i«how 
 that ho had a good title to the house, and adndt the plulntlffs poBseBsion in fact, 
 but surmise that tho plaintiti ^cas in jiosResBion by Bonie bad title, tho j)h'a would 
 ho (;(M)d, as giving expreM colour to the plaintltrB alleged iiossesslon. This form 
 of pleading is now more a matter of history than of practice. 
 
 (d) Tho "express colour" declared to bo unnecesonry by this section Is o 
 course that fiction in pleading of which nn example is given in the previous note 
 a proee(?ding charocterized by the Common Law CoininUsioners ns being, " ho 
 ever ingenious, too subtle and ought to be abolished." Indeed its express abol 
 tion by this section is almost a work of supererogation. The want of " oxpros 
 colour," technically so called, has always been a defect of form, which could only 
 b« u))jected to on special demurrer, and it has been enacted " that no pleading 
 shall De deemed Insutflcient which could heretofore only bo objected to on special 
 demurrer:" section 123. But by tho operation of this act, independently of tho 
 Kction under consideration, the omission of such a fiction is not only unobjection- 
 able but actually commanded, for an allegatiou or " statement that need not bo 
 proved," should bo omitted : section 70. 
 
 (f) Taken from Eng. Stat. 16 «fe 16 Vic, cap. 76, s. 65. 
 report of tho Common Law Commlasioners, section 44. • 
 
 Founded upon tho first 
 
 (/) The form of a special traverse comprised Jirst an inducement or statemen 
 of new matter which was required to be nn Indirect denial of the fact intended to 
 be traversed, and, tecondly, the conclusion or traverse, which was in these words, 
 "witliouf- thus, that, «tc." (denying directly tho fact intended to be disputed). If 
 the inducement stood alone the plen would have been open to objection for argu- 
 mentativeness, because it would only show by inforeneo or Indirectly that tho 
 allegation intended to be denied could not bo true. Tho direct or " njvcial tra- 
 verse," therefore, was added to avoid such an objection. Of it, as of express 
 colour, it may be said now only to be interesting in an historical point of view. 
 
 (g) The abolition of special traverses by express enactment may be also said 
 I to be a work of supererogation, and tor tho reasons mentioned in note d to the 
 I preceding section. 
 
 [h) Taken from Eng. Stat. 15 «fe 16 Vic. cap. 76, s. 66. Substantially a re-en- 
 ictnient of rule 41 E. T. 6 Vic, which was copied from Eng. R. G. 9 H. T. 4 Wni. 
 IV: Jervis N. R. 122, These rules were expressed to be applicable only to a 
 
 8 
 
114 
 
 TUE COMMON LAW PROCEDURE ACT. 
 
 [8.96. 
 
 m 
 
 i 
 
 
 "ft!' 
 
 Commonre- 
 mcntufiilea. 
 
 nor shall it be necessary in any replication or subsequent 
 pleading to use any allegation of precludi non, or to the like 
 effect, or any prayer of judgment, (f) 19 Vic. c. 43, s. 115. 
 
 06. 0") No formal defence shall be required in a plea, 
 avowry or cognizance, (k) and! it shall commence as follows, 
 or to the like effect : (^ 
 
 The Defendant, by E. F., (m) his Attorney, (n) (or in 
 person, as the case may he) says that (o) {here state Jirtt 
 defence), (p) 
 
 And it shall not be necessary to state in a second or other 
 plea, or avowry or cognizance, that it is pleaded by leave 
 of the Court or a Judge, (q) or according to the form of the 
 
 plea or subsequent pleading, intended to be pleaded in htir of the whole action 
 generally, as distinguished from pleas, to the further maintenance thereof ouly, a 
 restriction which does not prevail as regards thio ueution. 
 
 (»■) It was held under our rule 11 E. T. 6 Vic, that it was a good ground of 
 special demurrer to a replication that it imj)roperly concluded with a prayer for 
 relief: Hees v. Dick, 1 U. C, Q. B. 490. Such an objection would not now be 
 entertained on demurrer : section 123. . It is apprehended if any pleading contain 
 matter by this section declared to bo unnecessar}-, that the proper course would 
 be to strike out such matter, under section 76. 
 
 (j) Taken from Eng. Stat. 15 «fe 16 Vic. cap. 76, s. 67. Substantially a re-en- 
 actmeat of our rule 10 E, T. 6 Vic, which was copied from Eng. R, G, 10 H. T. 
 4 Wm. IV: Jervis N. R. 123. 
 
 (k) Though a formal defence be used the plea would not upon that account be 
 set aside : Bacon v. Ashton, 6 Dowl. P. C. 94, 
 
 (/) The plea must be intitled of the proper court, &c. : see section 77. 
 
 (»n) An infant can only plead by guardian. The commencement of a plea in 
 such case may be as follows : " E. F. admitted by the said court here as guardian 
 of the defendant to defend for him, be being an infant within the age of twenty- 
 one years, dtc." 
 
 (n) A plea for another by a person who is not an attorney is not a nullity: 
 Hill V. mils, 2 Dowl. P. C. 696. 
 
 (o) The court will consider every plea as pleaded to the whole declaration, 
 which is not in the introduction limited in terms as a defence to part only : Foul- 
 ion V. Dolmage, 6 U, C. Q.B. 277 ; see also Ptitney v. Swann, 2 M. «fe W. 72. If a 
 <plea professing to answer the whole declaration answer only part, plaintiff may 
 demur : Eidison v. Pigram, 16 M. A W. 1 37 ; Chappell et al v. Davidson, 18 C. B. 194. 
 If professing to answer only part answer the whole, plnintifFs course is to make 
 application to have it amencfed under section 119. Special demurrer was formerly 
 open to plaintiff in such case: Gray v. Pindar, 2 B. A P. 427. 
 
 (/>) If the defence be an equitable one the plea must Lt^In thus, " For defence 
 on equitable grounds, Ac" : see section 124. 
 
 iq) «'. e. Obtained under sectioa 110. 
 
 cof'nizance, t 
 
g.97.] 
 
 DEFENCES AFTER COMMENCEMENT OF ACTION. 
 
 115 
 
 statute, (r) or to that effect, but every such plea, avowry or 
 cocnizance, shall be written in a separate paragraph and be 
 numbered, («) and shall commence as follows, or to th<^ like 
 effect : 
 
 And for a second (&o.) plea to (stating to what it is Second plea. 
 pltadeJ) (0 the Defendant says that, &c. 
 
 And no formal conclusion shall be necessary to any plea Formal 
 avowry, cognizance, or subsequent pleading, (u) lU Yic. c. unuecussary 
 43,8.116. 
 
 97. (o) Any defence arising after the commencement of Dt-fence 
 any action shall be pleaded according to the fact {to) without 
 
 (r) I. e. The statute nnthorizing double pleading or some particular atatute in 
 which power to ple&d a defence in a special form is conferred. 
 
 (j) A defendant may in one plea refer to allegations in another, in the same 
 manner as in separate counts of a declaration : Beaton v. M>;Kemie, T. T. 1 <fe 2 
 \h: M. S. R. a II. Dig. " Pleading," XI. 1 ; see also Date v. The Gore DM. Mutual 
 Fn-c Lis. Co. 14 U. C. C. P. 548. 
 
 {t) See note o, supra. 
 
 (>i) I'niyer of judgment; dtc., is declared to be unnecessary by the preceding 
 
 sa'tion (','5). 
 
 ('•) Tiiken from Eng. Stat. 15 A 16 "Vic. cap. 76, s. 68. 
 
 (w-) IJetwcen pleas contemplated by this section and pleas puts darrein con- 
 tiuuiiHcc contemplated by the section following, there is a difference. The lat- 
 ter mu.->t express the ground of defence to have arisen since the last plea ; but 
 the pleas here intended may express the ground of defence as arisinjj after the 
 comuiauement of the ae^'on, which may be at any time nftar writ issued and bf-foro 
 pica pleaded. It is enough if the plea disclose on the face of it matter which 
 arose since tlie commencement of the action: Brooks v. Jennings, L. R. 1 C.P. 47ft; 
 Umtij V. Gibson, L. R. 1 Ex. 112. But if pleaded to the whole cause of action it 
 will be bnd if it leave any part of the cause of action unanswered: Ash et al v. 
 Poiipjwille, L. R. o Q.B. 86. Plaintiff may confess the plea and sign judgment for 
 his costs : Burnett v. The London AN. W. R. Co. 6 II. ife N. 604 ; Flummer v. If edge, 
 24 L.J. Q.B. 24 ; Cook v. Hopevxll, 1 1 Ex. 555 ; Morgan et al v. Harding et al, 1 1 W. R. 
 «5; Hill V. Howell, Law Times, May 26, 1860, p. 130, Q. B. It was li'eld before this 
 act that no such plea could be pleaded in bar to the action, tiiough it niij;ht be to 
 the furtlicr maintenance. A ground of defence arising after action brougiit was 
 looked upon as sometiiing collateral, admitting the action to be well brought, but 
 alleging that by reason of the new matter, plaintiff ought not furth'^r to niniiitain 
 hii action. It wus considered that a cause of action at the time of the commence- 
 ment of the suit was thereby acknowledged, whereas a plea in bar must deny any 
 cause of action to have ever existed: LeBret v. Papillon, 4 East. e'i2. The fol- 
 lowin;,' may be given as an example of such a plea. To an action on the ease by 
 plaintitF as owner of a steamship, against defendants as owners of another steam- 
 ship, for injuries caused to plaiutitTs vessel by collision ; defendant pleaded 
 amongst other picas a release after action, by a certain person jointly entitled 
 with the plaintiff to the ship and to the cause of action and damages in the decla- 
 ration meutioned: Suckling v. Wdson et al, 4 D. ib L. 167. Sue a plea having 
 
T 
 
 116 
 
 THE COMMON LAW I>ROCEDURE ACT. 
 
 [8 
 
 
 I" 
 
 t 4 
 
 
 
 ^'' 
 
 ! <t>^r-^ 
 
 
 "^ 
 
 'PJ5 
 
 pieliied!""' *'"y formal commencement or conclusion, (x) and any plgl 
 nrhich does not state irhether the defence therein set up arotil 
 before or after action, shall be deemed to be a plea of mattcl 
 arijing before action, (j/) 19 Vic. c. 43, s. 117. 
 
 Or aftcrHic Q^. (a) In cascs in which a plea puis darrein conlml 
 
 ing, atmiiivit aiue (h) was formerly pleadable (c) in Banc or ot j'M 
 
 Prm», (f/) the same defence may be pleaded with an alleg^l 
 
 — — — ■■- ■ ^ . I 
 
 been licld to be one in bnr of tl»e further maintenance of the action, and not in bvl 
 of tiie action generally, has been held to be inconsistent with and not pleadabkl 
 , tvitii pleas in bar: Ih., but now see R. G. pi 22. And yet before this act it wij 
 held that tlion{u;h such a plea was improperly framed in bar to tlie whole actioii.1 
 instead of its further maintenance, that the court after verdict was bound to pro-j 
 nouncc judgment that the action be not further maintained: Cobbed v. Oret/ tta'A 
 4 Ex. 72St ; see also Alleri v. Hopkins, 13 M. <fe W. 94. It has also been hclditl 
 England, owing to the pecnlior wording of the statute 2 (Jeo. II. cap. 22, s. 
 that a debt whicii arises after action brought cannot be the subject of a set-off: | 
 liichards v. James, 2 Ex. 471. 
 
 (x) It is therefore apprehended that whether the plea be to the further roair I 
 tenance or otherwise, the court will be bound to give judgment according to tin 
 very right and justice of the matter in dispute. The plea if improperly frniueil 
 was objectionable only upon special demurrer, which by this act is abolislid, 
 section 123. 
 
 (,!/) Matters of defence which arose before action must be i leaded in chief: 
 VauyhnH v. Browne, Andr. 323 ; see also Wilson v. Wymoitsold, Say. 268. 
 
 (a) Taken from Eng. Stat. 15 «fe 16 Vic. cap. 76, a. 69. Substantially a rMn- 
 nctinent of our old rule 23 E. T. 5 Vic, which was copied from Eng. rule 6 U, 1. 1 
 4 Wm. IV.: Jervis, N. II. 115. 
 
 (b) P'ea puis darrein continuance. This term is applied to a well-known form 
 of plittding, though the reason for the name no longer exists. By an ancient 
 rule of practice, when odjournments of proceedings took place for certain pur 
 poses from one day or one term to another, tiiere was alwaj's an entry madeoo 
 the record expressing the ground of the adjournment and requiring tlio parties to 
 re-appear at tlie given day, which entries wei'e called continuances. In the inter- j 
 vals between such continuances and the day appointed, the parties were, for the 
 purposes of pleading, o%U of court, and consequently not in a situation to pleaiL 
 But it sometimes happened that after a pha had been pleadedj and while the 
 parties were so out of court in consequence of the continuance, a new matter of I 
 defence arose, which did not exist and which the defendant consequently had no 
 opportunity to plead before the last continuance. This new defence he was tliore- 
 fore entitled (at the day given for his re-appearance), to pleod as a niottcr thit 
 had happened after tiio last coaWnwanca—pius darrein continuance, Ko entry of 
 continuances shall be made on any record or roll whatever or in the pleadings: 
 R. G. pi. 25. But pleas puis darrein contiMiance are preserved by the section 
 here annotated. 
 
 (<) Conviction of plaintiff of a felony after action : Bamett v. The London <t K. 
 W. li. Co. 6 II, A N. 604. Plaintiff having become an alien enemy by a declaration I 
 of war after action: Alcinous v. Xigrtu, 4 El. & B. 217, are examples of the plei. 
 
 {d) Pleadable in ba,re or at nisi prim. Between these two there is a distinction. 
 The former has been he!'.' to be pleadable by attorney and the latter by counsel 
 only. The former may bo filed and delivered to the opposite party, but the 
 
8. 98.] 
 
 PLEA OF PUIS DASRSIN OONTINVANCC. 
 
 117 
 
 tion that the matter arose after the last pleading ; («) bat 
 unless the Court or a Judge otherwise orders, (/) such pica 
 
 latter can only, it seems, be delivered to the judfjo at nisi priua ; Pat/tie v. Shen- 
 ttme, 4 D. A L. 3»ft; and both i-equiro to be verified by affidavit, if tlieso dis- 
 tinctions are still to be observed, the eflfect of this section will be that if the pica 
 be pleaded before the sittings at nisi prhu, it must be pleaded in hunc, filed and 
 gerved, as other ordinary pleadings ; but if after the commencement of the nisi 
 nrim sittings, it must be pleaded at nisi priun and given to the judge. The object 
 of tiiesc rules of practice is to prevent the inconvenience that might arise if a 
 cnnse wore for trial in one place and a plea filed and served in another : Payne v. 
 Sheu»tone, 4 D. «b L. 398, per Patteson, J. It would also seem'that the plea may be 
 pleaded at ninipriva though there was time to plead it in banc: Prince kI al v. Nichol- 
 mi, 6 Taunt. 333. If pleaded at nini priu$ it must be before verdict ; but will be 
 in time though the jury have left the oar, provided there be no actual rendering 
 of tlieir verdict : Bull N. P. 310 ; Todd v. Emfif et al, 9 M. tfe VV. 606. i^eitaiuly 
 it would be too Inte after the discharge of the jury : Anon, Cro. Car. 232. When 
 plendc'd at nini priim it should be transcribed by the proper officer on the record : 
 Mj/ern v. Tat/lor, 2 C. A P. 306. And the presiding judge must certify it as part 
 of the record: Abbot v. Rngeleif, 2 Mod. 307; Townnend v. Smith, 1 C. & K. 160. 
 If i^ood in point of form and in other respects regular, it has been held that the 
 jiidiiie though of opinion that the plea is pleaded for delay only has no discretion to 
 refuse it: llie Corporation of Ludloui v. Tyler, 7 C. <fe P. 537. The authority of this 
 case since the C. L. P. Act is much shaken: see section 119. The plea though 
 bail may, it seems, be amended : IJolroydetalv, lieedetal, 6Q.B. 694; but see Bull 
 N. P. 309 ; Afoore v. Hawkins, Yelv. 180. It has also been held that a judge at nisi 
 prim cannot receive from plaintiff a replication or even a confession of the plea: 
 J'amiUv. Ilorsleyetal, 8 C. A P. 372 ; but see R. G. pi. 22 and 23. The judgf^'s only 
 power has been held to be to return the plea as parcel of the recor<l : Moore v. 
 Hawkins, YcIv. 180. And it has been held that ho had no authority to reject 
 or set aside the plea, though insufficient in point of law : Paris v. Salke'd, 2 W ils. 
 137 ; Fitch v. Toulmin, 1 Stark. 62. 
 
 ('') A pica puis darrien continuance has been held in England to operate as a 
 withdrawal of pleas in chief, so as to entitle plaintiff to discontinue without costs: 
 Wollen V. Smith, 9 A. A £. 606. And so as to prevent defendant if successful 
 recovering the costs of such prior ^leadings : Lyttleton v. Cross et al, 4 B. A C. 1 17. 
 The prior pleas have been held to be so far waived by a plea puis darrein contin- 
 vnnre that if the latter turn out to be defective defendint cannot avail himself of 
 his former pleas: B'rber v. Palmer, 1 Ld. Rayd. 693. The only reason why the 
 defendant on pleading puis darrein continuance must withdraw or be held to have 
 witiidrawn his former pleas, is that otherwise he would plead double : see Gordon 
 tt al v. Robinson, 8 Prac. R. 366. And the practice with respect to this was 
 settled before the statute of 4 Anne, cap. 16, which first allowed double pleading: 
 Waitntr v. Imbrie, 2 L. M. A P. 334, per Parke, B. ; but see R. G. pi. 23. Defen- 
 dant can only plead one plea puis darrein cotUinuanee : Bull N. P. 3U. It would 
 appear that if any issue remain to be tried, it may be pleaded, though plaintiff 
 has obtained a verdict on other issues: Wagner v. Imbrie, 2 L. M. A P. 3;{3; see also 
 WriylU V, Burroughes et al, 3 C. B. 344 ; Gordon et al v. Robinson, 3 Pruc. R. .S66. 
 After judgment by default no sucl. plea will be allowed : Share v. Shaxe, M.T. 6 Vic. 
 M.S. R. A IT. Dig. " Puis darrein continuance," 1. An attorney cannot proceed for 
 his costs after this plea, unless he establish a clear case of fraud : WJiite v. Roulton, 
 E. T. 2 Vic. M.S R. A H. Dig. " Attorney," Ac, III. 9. Judgment upon a plea 
 puif (larreiti continuance is peremptory: Beaton v. Forrest, Aleyn, 66. 
 
 (/) The party has a certain time within which to plead as of right. It is dis- 
 cretionary with the court or a judge to allow him to plead after that time upon 
 
*i? ' 'I 
 
 
 118 
 
 THK COMMON LAW PROCEDURE ACT. 
 
 [8. 99. 
 
 sball not be allowed (g) unless flcoompanied by an affida- 
 vit (h) that tbe matter thereof arose within eight days next 
 before the pleading of the plea, (i) 19 Vic. c. 48, s. 118. 
 
 99. 0) Except (yt) in actions for assault and hat- 
 proper grounds being laid for it. But the plaintiff has a right to come and con- 
 test the defendant's reasons for not proceeding according to the strict course and 
 practice of the court, and to talie the opinion of the court or a judge tliereon. 
 And that opinion if in favor of defendant will, as a general rule, be only upon 
 payment of costs : Dunn v. Lofttts, 8 C. B. 76. 
 
 (<7) Qu. Would it be void or irregular only if pleaded contrary to this enact- 
 ment ? The expression " shall be allowed" refers to some autlmrity vested with 
 power to allow or disallow, and implies reference to that authority to decide. If 
 a plea were void in its inception a reference would be absurd. The want of an 
 affidavit would for this reason appear to be an irregularity only : see Oordon et al 
 V. Bohimon, 3 Prac. R. 366. 
 
 (A) Generally the affidavit states the plea to be true in substance and matter of 
 fact : M'mshall v. Evans, 4 C. A P. 565, per Patteson, J, If the affidavit refer to 
 the pica and the plea be intitled in the cause, the affidavit will be sufUcient 
 thougl) not specially intitled: Prince et al v. Nicholson, 5 Taunt. 333, It wonld 
 seem to be necessary that the affidavit if made daring the nisi prius sittings 
 ahould be sworn before the presiding judge ; Bartlett v. Zeighton, 3 C. & P. 408. 
 The affidavit may be dispensed with if the subject matter of the plea arose at the 
 trial and before the judge ; Todd v. J?miy, 1 Dowl, N.S. 698, And in other cases 
 also in the discretion of the court or the judge: Dunn v. Loftus, 8 C. B. 76; 
 Warren v. Kirby, M, T. 8 Vic. M.S. R. & H. Dig, " Abatement," 5 ; but see Povdl 
 y. Duncan, 5 Dowl. P. C, 650. A copy of the affidavit should be served with the 
 copy of plea, or if affidavit dispensed with, copy of order dispensing with it 
 should be served : Oordon et al v. Jiobinson, 3 Prac. R. 866. 
 
 (t) If the last of the eight days fall on Sunday a plea on Monday would be 
 good : Dudden v. Triquet, 4 M. 4 W. 676 ; see also R. G. pr, 166. Anil if the Inst 
 day expire during tlie nisi prins sittings the pica ought to be delivered to the 
 judfgo within the eight days, though the case may be low down on the docijet; 
 Towmeiid v. Smith, 1 C. «& K. 160. But if the last of the eight days fall between 
 the 1st July and 2 1st August, when shall the plea be filed and served ? Between 
 these dates, as a general rule, no pleading can be filed : see section 83, and note& 
 In the English act, whence ours has been taken, it is provided that " such plea 
 may wlion necessary be pleaded at nisi prius between the tenth day of August 
 and twenty-first day of October." However, in this province, no court of niii 
 prius sits until long after the vacation. 
 
 (j ) Taken from Eng. Stat. 16 «fc 16 Vic. cap. 76. s. 70. Substantially the same 
 as our old U. C. Stat. 7 W^m. IV, cap. 3, s. 13, which was copied from Eng. Stat. 
 8 <fe 4 Wra. IV. cap. 42, s. 21. Both our statute of Wm. and the English statute 
 of which it is a transcript concluded in substance as follows — " to pay into court 
 a sum of money by way of compensation or amends, in such manner and under 
 such regulations as to the payment of costs and the form of pleading, as the said 
 judges or a majority of them as aforesaid, by any rules or orders by them to be 
 from time to time made, shall order and direct. In this province, pursuant to 
 tliis statute, rules 17 and 18 of E. T. 6 Vic. were passed. In England, R. G. of 
 H. T. 2 Wm. IV. Nos. 66 and 56, of H. T. 4 Wm. IV. Nos. 17, 18, 19, and T. T. 
 iVic. 
 
 {k) This is a general law with respect to payment of money into court. In the 
 
8.99.] 
 
 PAYMENT 07 MONET INTO COURT. 
 
 119 
 
 tery, (l) false imprisonment, (m) libel, slander when not Defendant 
 within the fifth Section of the Act to amend the law relat- nionvy into 
 
 Cn'irt, ex- 
 
 ing to libel and slander, (n) malicious arrest or proseou- ceptincer- 
 tion, criminal conversation or debauching of the plaintiff's 
 daughter or servant, (o) a sole Defendant (j>) in any ao- 
 
 cases excepted defendant can only have a right to pay money into court if he act 
 in some character or under some special circumstance which entitles him by act 
 of parliament to pay money into court, for instance, as a justice of the peace, <bc. : 
 Bee Aslon v. Perkea et al, 16 M. <b W. 386 ; Key v. Thimblay, 6 Ex. 692 ; Thompson 
 T. Sfieppard, 4 £1. dc B. 63. And it has been held since the C. L. P. Act that it is 
 not now any more necessary than formerly for one party to state and the other 
 to deny the special character or circumstances which give the right to pay money 
 into court contrary to the usual rule of law in such cases : lb. 
 
 (/) Assault and battery. Similar words in the Eng. Stat, of Wm. were held to 
 be used only with reference to the persons of plaintiff and his wife, and not to 
 timt of his son or servant. Plaintiff, for instance, suing for an assault upon his 
 son would be subject to a plea of payment into court : Newton v. Ilol/ord et al, 
 6 Q. B. 921 ; see also Aston v. Ferkes et al, 16 M. in W. 886 ; Evans v. Walton, L. 
 R. 2 C. P. 616. 
 
 (m) False imprisonment. As to magistrates and others sued for something done 
 in an official capacity, see note k ante. 
 
 (n) Libel. The exception is as regards libels printed in a newspaper or peri- 
 odical publication by Con. Stat. U. G. cap. 103, s. 6, as to which see O'Brien v. 
 Cleinent, 16 M & W. 436 ; Chadwick v. Herapath, 3 C. B. 885 ; La/one v. Smith 
 tt al,dH.& N. 736 ; s. c. 4 H. <& N. 168 ; Jones v. Mackie, L. B. 3 Ex. 1. 
 
 (o) Debauching of plaintiff's daughter or servant. This particular kind of injury 
 having been expressly excepted, it would seem to show according to the rule 
 upressio U7iius, &c., that otlier cases of injuries to members of plaintiffs family are 
 not excepted : Nexoton v. Holford et al, 6 Q. B. 926, per Tindal, C. J. Such for in- 
 stanco as enticing away plaintiff's daughter or servant : Evans v. Walton, L. B, 
 2 C. P. 616. 
 
 {p) To entitle a sole defendant to pay money into court no order is necessary ; 
 but in the case of one or more of several defendants the law is different (section 
 here annotated). An order when necessary may be obtained at any time before plea. 
 It may be immediately after writ issued, bit then it must be done in such a way 
 as not to prejudice the plaintiff, and so as not to deprive him of any costs to 
 which he would be otherwise entitled: Edwards v. Price et al, 6 Dowl. P. C. 489, per 
 Patteson, J. Though the summons be ^aken out before declaration, the payment 
 iuto court must be afterwards pleaded tc the declaration: Mohan v. Munro, 
 1 Cham. R. 97. The money may be paid in respect of one or more of several 
 counts : Fullweil v. Hall, 2 W . Bl. 837 ; Mallet et al v. East IndiaCo. 2 Burr. 1 1 20 ; and 
 not necessary to show how much is paid in respect of one count and how much to 
 another : Marshall v. Whiteside tt tot. 4 Dowl. P.C. 766 ; except when there are counts 
 on a bill or note: Jourdain v. Johnson, 2 O. M. A R. 664; Tattersall v. Parkinson, 
 16 M. <& W. 762. No other plea will be allowed to that part of the declaration 
 to which the plea of payment into court is pleaded : Thompson v. Jackson, 8 Dowl. 
 P.C.-691; Hartv, Denny, 1 H. <fe N. 609. In one case, where money was by 
 mistake paid into court it was allowed to be withdrawn : Webster v. Emery, 10 
 Ex. 901. The plea may be amended and a further sum be paid in : Domett et al v. 
 Youtig et al, Car. A M. 466. The effect of the plea is to admit a cause of action and 
 damages in respect thereof to the amount paid in : Story v. Finnia et al, 6 Ex. 127 ; 
 
120 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 100. 
 
 r^ ''Hi 
 
 i 
 
 *. ( 
 
 
 IH' 
 
 tion, (9) without rule or Judge's order, or one or more of 
 several Defendants (by leave of the Court or a Judge (r) 
 upon such terms as the Court or Judge thinks fit), (s) maj 
 pay into Court a sum of money by way of compenflation or 
 amends, (t) 8 Vic. c. 13, s. 36 ; 13, 14 Vic. c. 60 ; 2 Geo. 
 IV. c. 1, 8. 25 J 19 Vic. c. 43, ss. 119, 121. 
 
 100. (u) The money shall be paid ta the proper officer of 
 the Court (v) who, for receiving the same, may exact a sum 
 
 but not necessarily the cause of action in the declaration alleged : Schreger t. 
 Cardan, 11 C. B. 851 ; Perren v. Monmouthnhire R <fc Canal Co. 11 C. B. 855. 
 Where the declaration comprises several causes of action and money is paid ia 
 generally, the court will not order particulars as to what items of plaintiffs claim 
 the money is paid into court : The Thames Iron Works and Ship Building Co. t. 
 The Royal Mail Steam Packet Co. 10 C. B. N.S. 375 ; but see Baxendah el al v. Grtat 
 Wetlern R Co. 6 U. d N. 96; see further section 101 and notes thereto. 
 
 (9) In actions. The present section extends to damages in detinue : PhilUpi 
 V. Hitifward, 3 Dowl. P. C. 362 ; Crossfield el iix. v. Such, 8 Ex, 169 ; but see Allan 
 V. Dunn, 28 L.T, Rep. 267; and in trover: Peacock v. Nichols, 8 Dowl. P. C. 3«7; 
 Kei/ V. Thimblehf, 6 Ex. 692 ; and to trespass by one tenant in common against 
 another for destruction of the common property : Cresswell v. Hedges, 1 H. & C. 
 421. A defendant is not entitled to pay money into court in a case where the 
 plaintiff assigns several breaches in his declai^ation under Stat. 8 <& 9 Wm. III. 
 cap. II, and where the Judgment obtained by plaintiff is to stand as a security 
 for any future breaches of covenant of which the defendant may be guilty: 
 Bishop of London v. McNeil, 9 Ex. 490 ; England et al v. Watson, 9 M. «fe W, 333. 
 The Stat. 8 A 9 Wm. III. cap. 11, is expressly excepted out of the operation 
 of this act : see section 1 48. The court sustained a plea of payment into court 
 as against a demurrer to it in an action on a replevin bond : Tlwmpson v. Kayt 
 et al, 13 U. G. G. P. 251. But replevin bonds are not within the operation of the 
 statute of Wm. : Bletcher v. Bnm, 24 U. G. Q. B. 259. Bonds within the statute 
 of Wm. clearly do not come under the operation of this section : Lowe v. Moria, 
 19 U. C. C. P. 123. 
 
 (r) The words " by leave of the court or a judge" must be taken exclusively to 
 refer to an application by one or more of several defendants to be allowed to pny 
 money into court. The practice as to these latter was first introduced by the 
 discretionary power of the court. It is still made subject to its discretion, and 
 may be subjected to terms : Kay v. Panchiman et al, 2 W. Bl. 1029, per De Grey, 
 C. J. 
 
 (») Courl or judge. Relative powers : see note w to section 48. 
 
 (J) Justices of the peace and other public officers when sued either for an act 
 done within their jurisdiction or in excess of jurisdiction, may pay money into 
 court: Con. Stat. U. C. cap. 126, s. 13. 
 
 (m) Taken from Eng. Stat. 16 «k 16 Vic cap. 76, s. 72. Substantially the same 
 as English rule 18 of H. T. 4 Wm. IV., which was never in force in this province. 
 
 (») Proper officer — Qu. Is it intended where an action has been commenced in 
 the office of a deputy clerk of the crown, that money may be paid to such deputy 
 as the " proper officer," and as being the officer with whom the plea is filed ? 
 It is apprehended, not. 
 
 i 
 
 8.101.] 
 
 not exceeding 
 who shull sign 
 plea, {/) for s 
 twenty cents, ( 
 paid out to the 
 authority from 
 10 Vic. c. 43, 
 
 101. (*) ] 
 
 pleaded ((/) in 
 
 (10) The per cei 
 court under a plci 
 under n judge's 01 
 charge allowable I 
 
 [x] No receipt ( 
 Milts V. Ifarwood, 
 held to render the 
 aside: Ilarsant v. 
 of any irregularitj 
 
 (,V) This fee ob- 
 under a plea : see 
 
 (i) Plaintiff wil 
 action. If he die, 
 V. Reiffenstein, 1 H 
 a defendant who a 
 dant's executors, i 
 6 Vic. MS. R. <fe 1 
 
 (a) PlaintifTs si] 
 ney, need not be vt 
 
 (A) Taken from 
 ment of our rule 11 
 
 (f) A ? to when i 
 i>ri r .:», thareto. 
 
 ' ."• • s genera! 
 .-■■/• y. L'lkim 
 >■ . % 'a which ( 
 "1 bee.i done: 
 V. }<iiymeiit into c 
 declaration, which 
 of payment, which, 
 five course, and i 
 6 Ex. 692. Ifplai 
 he has a defence ar 
 proper course is to 
 plead payment int( 
 'S4; Shaimanv. S 
 court depends muc 
 ofassumpsitonas] 
 
 m> 
 
8.101.] 
 
 PLEA OP PAYMENT INTO COURT. 
 
 121 
 
 not exceeding one per cent, on the sum bo paid in, (w) and omcerto 
 
 , r I \ y rrci'lve one 
 
 who shall sign a receipt for the amount in the margin of the i"'f •'"* "P 
 plea, (j-) for signing which receipt he shall be entitled to intu cuurt. 
 twenty cents, (t/) and the sum so paid in shall on demand be 
 paid out to the Plaintiff, (2) or to his Attorney upon a written 
 authority from the Plaintiff, (a) 2 Geo. IV. 0. 1, s. 26 ; 
 19 Vic. c. 43, 8. 121. 
 
 101. Iff) Payment of money into Court (c) shall be Siuhpny- 
 
 ,,,,,,. 11 , I • I ff It • iiifiit, how 
 
 pleaded (u) in all cases as nearly as may be 10 the following piuaUeU. 
 
 (t«) Tho per centngc is not to be charged except where the money is paid into 
 court untler a plea : Carrall v. Potter, 3 I'rnc. It. 11. Wliere money was paid in 
 under n judge's order to abide the result of another suit, it was lield that the only 
 charge allowable to the clerk was 208. under the tariff of costs : 76. 
 
 (x) No receipt on the margin of the plea was required under our old practice : 
 Mileiv. llarwood, 1 U. C. Q. B. 615. The omission of the receipt may now bo 
 held to render the plea irregular, and entitle the opposite party to move to set it 
 aside; llargant v. Jintk, 6 Jur. 1110. Taking the money out of court is a waiver 
 of any irregularity in paying it in : Oriffitln v. Williams, 1 T. R. 710. 
 
 (,v) This fee obviously is only chargeable where the money is paid into court 
 under a plea : see note to supra, 
 
 (z) Plaintiff will be entitled to tho money, whatever may bo tho result of the 
 action. If he die, then his legal representatives only will be entitled to it : Palmer 
 V. Ke'tffemtein, 1 M, <& O. 94. And on the other hand, money paid into court by 
 a defendant who afterwards dies, will, as against tho snmo plaintiff, avail defen- 
 dant's executors, if sued for the same cause of action : Carey v. Choate et al, M. T. 
 « Vic. MS. R. <b H. Dig. " Poyment into Court," 2. 
 
 (a) PlnintiflPs signature to the written authority, when produced by tho ottor- 
 npy, need not be verified on affidavit, unless so required by the master : 11. G. pr. 1 1. 
 
 (ft) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 71. Substantially a re-enact- 
 ment of our rule 17 of E. T. 6 Vic, which was copied from Eng. rule T. T. 1 Vic. 
 
 (e) ^ ? to v/hen und in what cases money may be paid into court, see section 99 
 ini r ,.:n, tharoto. 
 
 '■ .'• ■ s. general rule, tho money should be in truth paid into court before plea: 
 .-■'^ V. LWns, 8 M. «fe W. 216 ; Clark v. Dann, 3 D. «k L. 613. But there may 
 ^ . % 'a which tho court will presume that it has been done, though it has not 
 ill leea done: see Rendel et al. v. Malltson, 16 M. «b W. 828. The old mode 
 0'' <>iiymeiit Into court was by a rule to strike the sum paid into court out of the 
 declaration, which rule it was always necessary to produce at the trial. The plea 
 of payment, which, being upon the record, proves itself, is considered a less expen- 
 sive course, and is therefore substituted for tho old mode: Key v. Thimblehy, 
 6 Ex. 692. If plaintiff's claim bo composed of several demands, to some of which 
 lie hns a defence and to others none, and he wish to plead payment into court, his 
 proper course is to plead to the demands which he disputes separately, and then 
 |)iead payment into court as to the residue : see Coates et al v. Stevens, 8 Dowl. P. C. 
 784 ; Shaiman v. Stevenson, 8 Dowl. P. C. 709. The effect of a plea of payment into 
 court depends much upon the form of action in which it is pleaded. In an action 
 of assumpsit on a special contract, the plea admits that contract : SeaUm t. Benedict, 
 
122 
 
 THK COMMON LAW PROCEDURE ACT. 
 
 [8. 101. 
 
 i». 
 
 f: 
 
 ' .SI5 •-,■'1 
 
 
 v. ■'" 
 
 form, mutatis mutandis : (e) 
 Form. The Defendant, by E. F. (/) hia Attorney, (*;) (or in 
 person, &c.,) (h) (if pleaded to pari, (i) say, as to ., 
 
 6 Bing. 82, />«r.Gn8elco, J. ; Drake v. Lewln, 4 Tyr, 730 ; Speck v. Phillips, 6 M. 4 W. 
 279 ; yl rv/ier v. Englinh et al, 1 M. «fe G. 873 ; and the breaches of it as alleged : Wright 
 V. Ooddard et al, 8 A. il; E. 144 ; but not the amount of damages claimed by plain- 
 tiff in respect thereof: see Attwood v. Taylor et al, 1 M. <& O. 279 ; Cooper v. Blick, 
 2 Q. B. 916 ; see also Turner v. Diaper, 2 M. A G. 241 ; Afotidet v. Steel, 8M.& W, 
 868 ; Robimon v. Ifarman, 18 L. J. Ex. 202 ; Twyman v. Knowlen, 22 L. J. C. P. 143 ; 
 but wliere, as in indebitatus assumpsit, the demand is made up of several items, the 
 plea admits nothing more than that the sum paid is due in respect of some cauw 
 of action : Seaton v. Benedict, 6 Bing. 28 ; Ilingnam et alv. Robing, 7 Dowl. P. C. 352; 
 Archer v. English et a/, 1 M. & G. 873 ; Ooff v. Harris, 6 M. <fe G. 678. Particulars, 
 where several causes of action, as to intended application of the payment refused: 
 Thames Iron Works <fc Ship-Building Co. v. Rot/al Mail Steam Packet (Jo. 10 C. B. N.S. 
 875 ; but see Baxendale v. The Great Western R Co., 6 H. «b N. 96. The admission 
 by payment into court in an action of tort is something analogous to the adm! <m 
 by payment into court in indebitatus assumpsit. The effect is this, the defendant 
 says he will not dispute what is alleged against him in the declaration, to the ex- 
 tent of £ , leaving the plaintiff all his rights, intra the £ pleaded, and not 
 
 prejudicing himself in his defence ultra that sum: Story v. Finniset al, 6 Ex. 123; 
 Schreger v. Garden cl al, 1 1 C. B. 861 ; Perrin v. The Monmouthshire R. <fc Canal Co. 
 11 C. B. 855. See also Knight v. Egerton et al, 7 Ex. 407; Let/land y. Tancredetal, 
 16 Q. B. 664. In England defendants have been refused permission to plead with 
 payment into court, a plea denying ^he whole cause of action alleged in the decla- 
 ration: T/iowpsonv. Jackson, 8 Dcwl. P. C. 691 ; Dearie v. Barrett, 2 A. (b E. 82; 
 O'Brien v. Clement, 15 M. Jc W. 435; see also lliomas v. Hawkes et al, 8 M. 4 W. 
 140. Where, in an action on a bill of exchange for £40, defendant paid £41 8*. 
 into court, it was held that evidence of payment of part before action brought 
 was inadmissible : Adams v. Palk, 3 Q. B. 2. If the payment be made and pleaded 
 in an action when it should not be made, plaintiff's course is to move to strike 
 out the plea under this act. As to the effect of inconsistent pleas when allowed 
 to stand, see Fischer v. Aide, C DowL P. 0. 694 ; Twemlow et al v. Askey et al, lb. 697. 
 
 (e) The form given by this act must be adopted " as near as may be " in all 
 cases. It is not necessary, in the special cases of justices of the peace and particular 
 officers entitled to pay money into court by different statutes, that the character of 
 the defendant should be stated in the plea. The provision that the plea slmll be 
 " as near as may be " in the form given, " mutatis mutandis," is only to authorize 
 such alterations as may be necessary in order to adapt the plea to the names of 
 the parties, cause of action, sum paid, and the like : Thompson^ v. Sheppard, 4 EL 
 <& B. 63 ; Aston v. Perkes et al, 16 M. A W. 886; Lowe v. Steele, lb. 380. 
 
 (/) See note m to section 96. 
 
 (g) A plea for another by a person not an attorney is not a nullity, but may be 
 set aside on motion : see note n to section 96. 
 
 (A) The plea ought to show whether defendant pleads in person or by attorney: 
 Bee note u to section 85. 
 
 (i) Money may be paid into conrt and pleaded aa to one or more of several 
 counts : Fulhoell v. Hall, 2 W. Bl. 887 ; Hall et al v. East India Co. 2 Burr. 1 1 20. It 
 has been held that payment made jointly npon two breaches in covenant is good, 
 without showing how it is intended to be applied to each : Marshall v. WhitotOt 
 «t ux. 4 Dowl. P. C. 766.' But where, among other counts, there was one on a bill of 
 
 
8. 102.] 
 
 REPLICATION AFTER PAYMENT INTO COURT. 
 
 123 
 
 parcel of the money claimed,) (j) brings into Court the sum 
 
 of ('t) ~) ^^^ B^JB ^^^ Baid sum is enough to Rutisfy the 
 
 claim of the Plaintiff in respect of the matter herein pleaded 
 to. (/) 19 Vic. 0. 43, 8. 120. 
 
 103. (wi) The Plaintiff may (m) reply to a pica of pay- n<-riy of 
 ment of money into Court, by accepting the sum so paid in, sudl'ewiu!' 
 in full satisfaction and dincharge of the cause of action in 
 respect of which it has been paid in, and may in that case 
 tax his costs of suit, and in case of non-payment thereof 
 
 cxclmnge, it was suggested that the plea of payment into court should state how 
 mncli of tlie money was intended to be applied to the bill : Jourdain v. Johmon, 
 2 C. M. & 11. 664 ; Armfieldv. Burginetal, 8 Dowl. P. C. 247 ; TaUermll v. Parkin- 
 mn, 16 M, A W. 762 ; also see Fitileyiton v. Mackmzie, 3 Bing. N. C. 824 ; Harris v. 
 BuKhell. 2 Dowl. N. S. 514; JJilla et al v. Mesnard et al, 10 Q. B. 266 ; Miley et al 
 V. Smctinj, 1 D. A L. 663. 
 
 (j) A plaintiff may recover less than he claims in his dcclaratiin, so the defend- 
 ant in iiis plea may allege that less is duo than is claimed : TtUlet sail v. Parkinson, 
 16 M. <t W. 767, per Parke, B. 
 
 (k) A payment into court of a less sum than that admitted by the plea to bo 
 due, would be bad : see TatlersM v. Parkinson, 1 6 M. <fe W. 762 ; Orimsley v. Parker, 
 S Ex. 610. If plaintiif be entitled to interest on his cause of action, defendant 
 glioiild pay interest, to be reckoned to the date of payment, and not merely to the 
 date of the commencement of the action : Kidd v. Walker, 1 Dowl. P. C. 331. A 
 defendant may be allowed to amend his plea by pleading payment of a further 
 sura than that at first pleaded : Domett et al v. Young ft al, Car. <fe M. 465. Where 
 defendant paid into court the amount claimed and offered to pay costs which plain- 
 tiflf declined, undertaking to pay them himself: Held, that defendaiit was entitled 
 to succeed on his plea of payment into court : Thame v. Boast, 1 7 L. J. Q. B. 339. 
 
 {I) And says that the said snm is enough to snti»fti, <&c. This is tantamount to the 
 old form of no damages xiUra, and is a substitution therefor. It is the material 
 and traversable point in the plea. Where, to an action for goods sold, money due, 
 <I:c., dufendant pleaded as to part never indebted, and aa to the residue payment 
 after action brought, naming the sum, which plaintiff accepted and received in 
 satisfaction of the said claim of A, " and of all damages accrued in respect thereof," 
 but only proved that the amount so paid was the debt sued for without costs : 
 Hdd, plea not proven : Cooke v. Hopewell, 26 L. T. Hep. 224. 
 
 (m) Taken from Eng. Stat. 15 4 16 Vic. cap. 76, s. 73. Substantially a re- 
 enactment cf Rule 18 E. T. 6 Vic, which was copied from Eng. rule 19 T. T, 1 Vic. 
 Tlie effect o':' this section is to allow plaintiff either to take the money paid 
 into court with his costs, or to reply damages ultra. Whatever may be the result 
 of the cause, plaintiff will be entitled to tne amount paid into court, provided 
 defendant be not a justice of the peace or other person entitled to special protec- 
 tion by statute. 
 
 (n) Plaintiff shall be at liberty cither to accept or refuse the money paid into 
 court. Defendant by pleading payment into court admits plaintiffs right to re- 
 cover »omt damages, but contends that he has no right to a sum exceeding that 
 paid into court and pleaded. This of course the plaintiff may dispute in his 
 replication, and thereupon proceed to trial. The amount of damages to which a 
 plaintiff may be entitled is generally a question for the decision of a jury. 
 
124 
 
 rinintiir 
 
 aatlHlli'd. 
 
 Plaintifr not 
 satislled. 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 102. 
 
 V'ithin forty-eight hours, tnny sigD judgment (o) for hia costi 
 sc taxed ; (/>) or the Plaintiff nixy reply that the sum paid in 
 is .iot enough (q) to satisfy his claim in respect of the matter 
 to which the plea has been pleaded, (r) and in the event of 
 an issue thereon being found for the Defendant, the Defen- 
 dant shall be entitled to judgment and his costs of suit. («) 
 19 Vic. c. 43, 8. 122. 
 
 it'.. 
 
 (o) Where plnintlflTs attorney, by m!»tale, accepted monej' paid into court, and 
 signed judgment for costs, the juilgment upon a]>plication of plaintitf and upun 
 payment of costs, was set aside, and plaintitf permitted to proceed witli his action: 
 £mery v. WeMer, 9 Ex. 242. 
 
 (/)) The quantum of costs to be allowed plaintiiT will depend upon the form of 
 issue raised by the plea of payment into court: see JIaroUlv. Smith, 6 II. & N. 881. 
 That plea may be either in respect of the whole causa of action, or only of a nart 
 selected, and, as it were, isolated by defendant. If the plea bo to the whole 
 declaration, plaintiff is undoubtedly entitled to take out ot court the amov.iit so 
 pleaded, and to tax his costs of suit, which ends the cause, liut if defendant \m 
 filed several pleas, of vhich the plea of payment into court applies only to part of 
 the declaration, and the remaining pleas to the residue, the plaintiff by accepting 
 the money so paid into court is only entitled to the costs of the cause in respect 
 to that part of the declaration to which payment is pleaded: Jiitmbelow v. Whalltij, 
 16 Q. B. 397 ; also R. G. pr. 12; and musteitlier reply or enter a nolle prosequi i» 
 to the residue: Emmttt v. Standen, 6 Dowl. P. C. 691. If he elect to go to trial, 
 and fail on the residue, defendant will be entitled to the costs of the cause in 
 respect of such defence, commencing at "Instructions for plea," but not before: 
 B. O. pr. 12. And if plaintiff in such a case neglect either to enter a nolle protequi 
 or to proceed to trial, defendant will have the right, upon proper demand, to sign 
 judgment of nonpros. : see Topham v. Kidmore, 6 Dowl. P. C. 676 ; Goodee V. QM- 
 smith, lb. 288 ; Coatta el al v. Stevens, 3 Dowl. P. C. 784. 
 
 (9) Plaintiff, if he afterwards change his mind, may apply to amend his repli 
 cation by accepting the money paid into court, upon poying defendant all costs 
 incurred by him subsequent "to the payment into court : Kelly v. Flint, 6 DowL 
 Jr. Kj. 29ti. 
 
 (r) This is in lien of the old form of replication, that the defendant " was and 
 is indebted to plaintiff in a greater sum" than that paid into court: see Faithjd 
 V. Achley, 9 Dowl. P. C. 655. 
 
 («) Defendapt in this case, it is apprehended, would be entitled to his costs of 
 suit, and not merely those incurred since payment into court, according to the 
 old practice ; the costs to be in respect of the whole or a portion (as the case 
 may be) of the plaintifTs cause of acti, i so for os covered by the plea of payment; 
 see Harrison v. Watt rf wa:, 16 M. <fe W. 316 ; Thame v. Boast, 12 Q. B. 81 "S ; Rum- 
 below V. Whalley, 16 Q. B. 397. This rule as to costs will apply if plaintiff be non- 
 suited : Shillibeer v. Lingwood, 16 L. T. Rep. 143. Or if defendant be allowed to 
 sign judgment under section 227, upon a suggestion that plaintiff neglects to pro- 
 ceed to trial : see McLean v. Phillips, 7 C. B. 817. And if part of the demand be 
 paid after action brought and the remainder paid into court and pleaded, defen- 
 dant will be entitled to the general costs of the cause: Horner v. Denham, 12 Q. 
 B. 813. But where plaintiff having after plea obtained leave to amend his decla- 
 ration on payment of costs by increasing the amount of damages, and defendant 
 having after amendment paid money into court by which one of his pleas became 
 
103.] 
 
 PLEADING TO C0NTBACT8 AND TORTS. 
 
 125 
 
 103. (0 In case doubts arise as to the form of picas when ||i*'<> i^, 
 enuiics of action may bo considered to partake of the character truatnnni- 
 both of breaches of contract and of wrongs, (u) no plea good •» (dutrart 
 in gubHtauce shall be objectionable on the ground of its trent- umi vice 
 
 rfr»(t. 
 
 un«vnil«blo, held tlint ho wn8 not entitled to the costs of such plea, (.onldy, 
 Otiver, ft Ui")?. N. C. 115. The phmseoloify of this section, though npfinrcntly 
 conteinfiliitiiijij payment pleaded to the whole decloration, is clearly I'lko that of 
 the olii I'lili's ; tiie policy of which was to make each party pay costft in respect of 
 thnt pnrt of the case in which ho was wron^ : case in Chambers, reported in noto 
 d to p. f>H) of 4 D. <i; L., ;xr Alderson, IJ. ; see also Ooodee v. Uoldxmilh, 6 Dowl. 
 P. C. 28S; Amor v. Vnthhert et al, 1 Dowl. N. S. 100. Where therefore to debt 
 fi)ri;<x»l!« *><ild, money lent, iS:c., defendant pleaded except as to Ifts. parcel, dice., 
 Rpver indebted, and as to the sum of Ifis. payment into rourt, and tilaiiitifT joined 
 issue on the former plea, and accepted the Ifis. paid in court and the issue was 
 aftcrwnrd:) found for tie defendant, it was held that plcintitf was entitled to all 
 till' touts relating to the 158, paid into court: IJarrwon v. Watt et nr, ]»J M. A W. 
 316: see further 11. U. pr. 12. Where in an action of covenant tho declaration 
 contained several breaches, and £10 were paid into court, on one breneli, ieavinjcf 
 the otliers to be tried, upon which plaintiti' recovered Is. damages, j)lniiititf was 
 lii'lil entitled to coats, notwithstanding the judge certified under 8tat. 4;{ Kliz. cap. 
 6, s. 2, " that the jury in this case found a verdict for Is. damages and no more :" 
 liicliivds V. Bluck, « C. B. 443. 
 
 (t) Talien from Eng. Sfat, 16 «fe 16 Vic. cap. 16, s. 14. 
 
 (i() It is unnecessary to enumerate any such doubts, as the section itself is 
 sufficiently explanatory ; but it may be mentioned that in the early case of Powell v. 
 Liijlnii, 2*B. & P. N.R. 366, the question arose, and it was held that to a count ap- 
 parently in case, but substantially in contract, n plea in abatement for nonjoinder 
 (wiiich can only be pleaded in nn action on contract) wos pood: see also Jimldlev. 
 Wiikon, T. It. 369. A si.nilar plea has been held to be inadmissible in an action 
 clearly founded upon a tort : Mitchell v. Tarhntt et al, 6 T. R. 649 ; see also Govett 
 V. Kmlnidi/e et ul„ 3 East. 62; Jilwellv. The (J mnd Junction R. Co., 6 M. «t W. 669. 
 AVJiere, in case against a common carrier for not safely conveying goods according 
 to undertaking, to which defendant pleaded not guUty, held that the plea admitted 
 tiie goods to have been received os alleged, but denied negligence in the perform- 
 ance of the duty resulting from the contract : li ebb v. Page, 6 M. it G. 1 96. Though 
 tiiia section relieves defendants from the embarrassment of deciding whether a 
 declaration is framed on breoch of contract or for a wrong, yet it leaves open to 
 doubt the effect of pleas on contract when pleade:! to declarntions sounding of tort 
 or lite wrm, e. g. non assumfisil to an action on the cose, or not guilty in nn action 
 oi imnm/mit. As to the efl'ect of these and similar pleas in general, see 11, G. pi. 
 6««^„nnd in connexion therewith the following cases: Passenger v. Jirookeit, 
 1 IMng. N. C. 587 ; Hemming v. Parry, C. «fe P. 680 ; Smith v. Parsous, 8 C. & P. 
 I'Jf ; Spcuctr v. Dawson, 1 Moo. «fe 11. 652. The mode in which the doubts hero 
 mentioned are precluded, is a necessary consequence of section 123, which enacts 
 that no pleading shall be deemed insufUcient which could heretofore have been 
 oljectcd to on special demurrer only ; for a plea, though held bad before this act, 
 fur example, non assumpsit, in case was considered open to objection upon special 
 
 demurrer only: Davison v. Moreton, 1 Chit. R. 716; Jltyite v. . Jb, 7ltj, note; 
 
 hen;y v. Fnrant, 1 Dowl. P.O. 463 ; see also Smith v. Jones, 3 D. A R. 621. And 
 it has been enncted by tliis act that either party can only object by demurrer to 
 the pleading of the opposite party, on the ground " that such pleading does not 
 8ct forth sutticient ground of action, defence or reply," «tc. : section 12<.». 
 

 m 
 
 I • 
 
 A Sv 
 
 •v '1 . 
 
 I 
 
 126 Tni COMMON LAW FROCEDCRB ACT. [s. 104. 
 
 ing tho declaration either as framed for a brcaoh of contract 
 or for a wrong, (v). lU Vlo. o. 43, s. 123. 
 
 104. (<r) Pleas of payment (x) and set-off, (t/) and all 
 
 (v) It tnny bo necessary to draw attention to the fact that this section onW 
 dochircs tiiul n pica good in substance sliull not be ol>jectionablu merely beciiuiw It 
 treats a ducluruliun as framed for a breach of contract, wliicli is in fact for a wumif 
 or vice ^erm, but does not render unobj(>ctional>le picas in aMHinfn<il to any form 
 of action in wiiiuli suuh pleas have liuretoforo been held or declared to bu bnij, 
 Bucli, for cicnniple, as non lunuinpHil to an action on a bill or note, &c.: see \\. G. 
 J)!. 6, et»eq. ; also Kelli) v. VilUboia, 3 Jur. 1172 ; Mmmh v. Hill et al, 6 U.C. <i.B. (10; 
 ikwell V. Jlilc. 8 J)owl P. C. 309 ; EMkon v. I'eagram, 4 D. A L. 277: BompU 
 V. Mge, 1 Ex. 80; Jhrnei/v. Ilamlton, 18 L. J. Ex. 377. It is presumed "tlml 
 pleas ]ilea(led in contravention of established practice, may bo set a»ido uj)ua 
 application under section 110 of this act. 
 
 {w) Taken from Eng. Stot. IB «t 16 Vic. cop. 76, s. 75. 
 
 (r) A ploii of payment is only necessary when there has been a debt incurred, 
 No debt cau bo said to have been ipcurrud where there has been no credit. Th'», 
 where a man makes a purchase and co iiistanli pays for the article and takes it 
 and gives tho money for it, there is no debt— it is an exciianffe of money for 
 coods and there is no occasion to plead payment, for the man was never irululited, 
 Tho same principle applies to all transactions that fairly come under the name 
 arrangement, whether a man go'S to an inn to eat his dinner, and pays for it 
 immediately, or whether he goes to remain there for more than one meal, or even 
 for a day or several days, where it is never intended that tliere should be nny 
 credit given, except for tho moment as it were, while the goods are being handed 
 over to be paid for : Wood et nx. v. Blrkhcr, 27 Law T. Ue|). Tirt ; see also linxneii v. 
 Barnett, Jt M. tfe W. 312 ; Litllechihl v. Banh, 7 Q. U. 't'M ; FUxrfcmhl ct al v. Tk 
 London Co-operative Ahhoh, 27 U.C. (J.IJ. 005. It has been held in debt on simple 
 contract that where defenda.it pleads payment of a certain sum of money he must 
 prove jiayment of thnt sum, (even though it be laid under a vidtiivit) in order to 
 entitle him to a verdict on the whole plea ; but that the plea may be token distri- 
 butively and the issue found for defendant as to the amount proved to have been 
 paid, and as to the residue for plaintiff: Consim v. Paddon, 2 C. M. A II. 547. 
 Therefore, where in debt for goods sold and delivered, and work and labour done, 
 the defendant pleaded _/(/•»<, nunqnam indcbilcUus ; secondly, ns to parcel of the sura 
 demanded, to wit, £338, payment of £338 in discharge of that parcel ; thirdly, « 
 Bot-oif for money paid ; tho plaintiff proved a soecial contract for good sound 
 saleable bricks, to do mode for him by tho defendant, at a certain price per tiiou- 
 sand, and delivery of so many as amounted nt that rate to £30G ; the defendant 
 proved payment of £314 and a set-off for £21, and proved also that the bricks 
 wore badly mode, and the jury found the value of those delivered to be not more 
 than £335 ; the court directed tho verdict to bo entered on the plea of payment 
 as to £314 for the defendant, os to tho residue for tho plaintiff; on tho plea uf set- 
 off as to £21 for the defendant, as to the residue for the plaintiff; on the plea of 
 nunquatn indebitatus as to the whole sum demanded, except £335, for the defen- 
 dant; so OS to give tho defendant judgment on tho whole record: 76. 
 
 (y) The stotutcs of set-off ore 2 Geo. II. cop. 22, s. 13, and 8 Geo. II. cap. 24, 
 88. 4, 5. It has been held thot if defendant plead to the whole cause of action set 
 forth in the declaration a set-off of a sura of money, but do not prove that the 
 amount so pleaded is equal to or greater than tho aggregate amount of ])laiiititrs 
 claim, there must be a verdict on that ploo for the plaintiff: 3foore v. Bntlin, 7 A. 
 it £. 695. It 13 an advantage to a defendant to be allowed to plead generally 
 
 (a) Before the C 
 right of way with 
 andyoods from a n 
 carrying of goods 
 verdict to be cnte 
 whore in trespass 
 the closes in whicli 
 rqilied alleging sei 
 the defendant in h 
 only as to two of tl 
 
 
8. 104] 
 
 DISTRIBUTIVE PLCADINQS. 
 
 127 
 
 other pleadings (z) capablo of being oonstruod diatributivoly, ^,'"''^',1",'/'^" 
 thnll bo taken distributively, (a) and if issue bo taken thereon 'jy^p' 
 
 and so mucb thereof as ia a sufficient answer to part of the t'v.iy. 
 
 I'lii'ii 
 
 Im- 
 
 thnt ft i^roiitnr sum is due to liim than tho amount of tlio plnintifTs dntnnnd ; but 
 then (Icl'iiiiliint linA no ri^ht to tuko an unfair mlvnntiigo of piiiintitf l>y iilcndiiijr 
 to the wliolo, nnd tints tnliin^; tlio clinnco of proving; nx nnicli an lie can, and cluini 
 to bi' nlliiwi'd a verdict for as much m ho lias proved, wiien lie lias not ])r()VL>(i 
 any xct-olf ctpial to that which ho has plt>adi.>d or to tliu debt which tho plaintitT 
 \m e8lul)liHliuil. Tho general rulo mimt apiily, that if a party nlead a special 
 iiliA niiii fail in proving any part of it, he tails in proving thu whulu (jitoatl tho 
 issue raised: Tuck v. Tuck, 5 M. tic W. Ill, ;w Abingor, C. B. But defendant 
 cannot na a general rulu for this purpose taku into a(!count a dofencu wliich aroso 
 after tlie couimeneemcnt of the suit : sec .sections 97 and 08, and notes thereto, 
 Tlie iiiii;^\iage of tho plea of set-off is to be understood as applying to the state of 
 tliu lU'ciiiiiit between the piaiiititrand the defendant at tho linio of tho coninionce- 
 mint of tlie action. Thu defendant by that plea alleges that the iilaintiff was at 
 tliu tlino the action brought iiulubtcd to him in an amount equal to or greater 
 than that in which he was indebted to plaintilf, and that such d tbt is still owing 
 to him, defendant: Spradber;/ v. Uiltam, 2 L. M. & \\ 3ti7, per Parke, ]J. Tho 
 |)k'a litis licen held to bo so fur divisablo that if defendant by means of it taken 
 with other pleas on the record, cover tiio whole of plaintiff's demand, ho will bo 
 entitled on that plea to have a verdict entered in his favor for thu amount proved: 
 'IWk V. Titck, 6 M. & \V. 112, /«■»• I'arke, U. ; seo also FonlM. Ikech, 1 1 (I H. 842 ; 
 Sttkih v. Tuck, 1 C. L. Ilep. n:)2. But in this as in tho case of a single plea to tho 
 whole declaration if the amount proved be less than the amount of ciuiin estal)- 
 lislu'd liy jiluiiitiff, tlic issue must bo found for plaintiff: Tuvk v. Tuck, a M. Jii \V, 
 lU'.i; sec also K'lhier v. Bailfif etal, 6 M. & W, 882; Green v. M'lmh, 5 Dowl, !'.(!. 
 «»',». Tlie case of Tack v. Tuck is not so correctly reported in 7 Dowl. 1'. (J. 373, 
 as In 5 M. &, W. 109. It in effect decides that plaintiff cannot have a verdict on 
 a plcii of set-off unless the plea cover plaintitfs demand as it stood originally, or 
 us ri'diiLcd by some other plea, but is no authority for depriving a defendant of 
 till.' sot-off in reduciion of danuii/cs. Therefore it has been since held that a set-off, 
 if plwulcd and proved, though it do not cover the whole of plaintitfs claim, may 
 [irevail in reduction of damages : lioJgcru el al v. Maw, 16 M. «t W, 444. 
 
 {:) And all other jilea(ih)()n. This section seems to embrace nil forms of 
 actions nnd all forms of pleading in any particular action — demurrers included. 
 Demurrers have been held tlivisiblo long before this act : fJindeetalv. Gray, \ M. 
 (t(i. 201, note a; see also Br'ucoe v. Jlill, 10 M. <fe W. 735 ; Yates v. Tearle, 8 Jur. 
 '?"4. Wlietlier there be a demurrer upon tho record or not, the courts have laid 
 down the rule that judgment must be given upon the whole record according to 
 the truth. And that where several breaches are assigned in a declaration to the 
 whole of which there is a demurrer, if any breach is well assigned, tlie jdaintiff ia 
 eutilled to judgment as to that breach : Slade v. Uawley, 13 M. »fe W. 757. 
 
 (a) Before the C. L. P. Acts where there was a plea justifying under an alleged 
 right of way with horses, carts, and carriages, for tho purpose of fetching water 
 mulyoodx from a navigable river, and the jury negatived the right as to the 
 carrying of goods but affirmed it as to the currying water, the court directed tho 
 verdict to be entered distributively : Knight v. Woore, 6 Dowl. P. C. 201. And 
 where in tresiiass for breaking and entering three closes, defendant pleaded that 
 the closes in which, Ac, were the soil and freehold of one L. T., to which plaintiff 
 replied alleging seisin in four other parties who demised to plaintiff, whose seisin 
 the defendant in his rejoinder traversed, nnd at tho trial pluintitf proved a case 
 only as to tuio of the closes, but ofiTered no evidence as to the third, it was held 
 

 128 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 104. 
 
 mW 
 
 i:'» 
 
 'm 
 
 ' causes of action be proved, and found true by the Jury, a 
 vcrdiot shall pass for the Defendant in respect of so much of 
 the causes of action as are answered, and for the Plaintiff in 
 respect of so much of the causes of action as are not an- 
 swcred ; (b) and if upon a plea of set-off the Jury find a large: 
 
 that the issue was distributable, and that plaintiff was entitled to a verdict as to 
 the two closes and defendant as to the third : Phythian v. White et at, 1 M. <t W. 
 216 ; see also Sharland v. Loaring, i Ex. 375 ; Vivian v. Jenkin et al, 3 A. <fe E. 741 ; 
 Routledne v. Abbott et al, 8 A. <fe E. 592. On a plea of libervm tentmentum to an 
 action of trespass qnare clauxum frcgit, the defendant is entitled to a verdict if lie 
 prove p. title to that part of the close in which the trespass was committed, and 
 IS not bound to prove title to the whole close: Smith v. Roj/ston, 8 M & W. 381. 
 So as to a plea of leave and license to that action : Bracegirdle v. Peacock d al, 15 
 L.J. Q.B. 73; Adams \, Andrem, 20 L. J. Q.B. 33. Where a declaration was for 
 breaking and entering a close generally and pulling down certain posts and bars 
 standing thereon, to which defendant pleaded that there, wos a footway over the 
 close, and that defendant, because the posts and bars obstructed the way, pulled 
 them do>vn, replication traversing the foot\ aj': Held that on these plendinijs 
 defendant was entitled to a verdict on proof of a right of way in any direct'm 
 over the close: Webber v. Sp'trkcs et al, 10 M. <fe W. 485. But where in case for 
 disturbing the plaintifTs right of ferry from Greenwich to the Isle of Dogs and 
 back again, to which defendant pleaded, _first, not possessed of the ferry, secondlii, 
 that there was no such ferry ; and plaintiff at the trial proved one half of what 
 he claimed, i. e. the right from but not to the Isle of Dogs, it was held that the 
 right alleged was divisible, and that plaintifTs were entitled to have the verdict 
 entered for as much as they proved : Giles et al v. Groves, 12 Q. B. 721 ; but see 
 Jlighnm v. Jiabbett, 7 Dowl. P. C. 653. So where to an action for applying water 
 to other purposes than those of an engine defendant pleaded i prescriptive right 
 to use the water for the purposes of a boiler and cistern. Defendant proved his 
 right as to the boiler but not as to the cistern. Held that the verdict should be 
 entered distributively : Proprietors of the Rochdale Canal Co. v. Radcliffe, 21 L. J. 
 Q. B. 297. So in trover for certain goods described in which plaintiff succeeded 
 only as to part of the goods claimed, it was held that defendant, who had pleaded 
 amongst other pleas a plea denying plaintiffs property in the goods was entitled to 
 have tiie vcrlict entered distributively : Williams et al v. 2'he Great Western Kailmy 
 Co, 8 M. & W 656 ; see also Elliott v. Bi>ihop, 10 Ex. 522. The same principle 
 has been applied to actions for libel charging several offences, each of which 
 might be separately justified : Clarke v. Taylor et al, 2 Bing. N.C. 654 ; Monntneii v. 
 Walton, 2 B. <fe xVd. 073; McGregor v. Gregory, 11 M. «fe W. 287. So in an action 
 on several bills < r notes to which there is a plea that they and each of thera were 
 and was produced by fraud: Woody. Peyton, 2 D. <fe L, 172; see also Loiccthv. 
 Smith etal, 2 D. «fe L. 212. It has been clearly held that where a plea is so fur dis- 
 tributive that part of it is an answer to the declaration, and the remaining part 
 unnecessary to be proved, that proof of the former part is of itself sufticient to 
 entitle defendant to a verdict: Atkinson v. Warne, 1 C. M. «fe R. 827. A plea 
 pleaded to the whole declaration but an answer only on the face of ii to some of 
 the counts, is bad altogetlier and cannot be construed distributively under this 
 section : Chappell et al v. Davidson, 2 Jur. N. S. 644 ; Lyne el al v. Siesjitld, 1 IL 
 <fe X. 278. But a plea to several counts bad as to some and good as to others may 
 be taken distributively: Blngrave v. Bristol Waterworks Co., 1 H. «fe N, 369. See 
 further Stears v. South Essex. Gas Light and Coke Co. 9 C. B. N.S. 180. 
 
 (6) This section seems to apply only to pleas that answer the action by confes- 
 Bion and avoidance, not to pleas in denial : Wilkinson v." Eirby, 23 L. J. C. P. 2i4. 
 
 i ,'#, 
 
 \i r 
 
 P ^;^ ^'n 
 
s. 105.] 
 
 MODE OF TRAVKRSINQ BY DEFENDANT. 
 
 129 
 
 sura proved to be due from the PlaiotiflF to the Defendant Jf o" "ct-oir, 
 
 • Defendant 
 
 than is proved to be due iioin the Defendant to the Plaintiff, i,"'"^''* "'^jre 
 
 ' ' line fniin 
 
 a verdict shall pass for the Defendant for the balance remain- I'laintiif 
 
 ,. ,v ,, 111, T t tliantohim 
 
 it)<; due to him, (c) and he shall have Judgment to recover 
 such balance and his costs of suit. (J) 19 Vic. c. 4B, s. 124. 
 
 105. (e) A Defendant may either traverse generally such Traveraing 
 of the facts contained in the declaration as might have been in?ieciara^ 
 den'ed by one plea, (/) or may select and traverse separately *'""' 
 
 It in effect extends the doctrine of Cousins v. Paddon, 2 C. M. <fe R. 547. and Tuck 
 V. Tuck, 5 M. & W. 109, to all descriptions of pleadings: Parr v. Jewell, 16 C, B. 
 6S4 ; Frcshnet/ e.t at v. Wells el at, 26 L. J. Ex. 228 ; Bennett v. Thompson, 4 W. R 
 5!t4; J'atersonr. Harris, 2 B. <fe S. 814; see also Gabriel et at v. Dresser, 15 C. B. 
 62:1. It does not say that the principle of pleading is to be altered, accord- 
 in» to wliich it is held that a pi ja which is bad in part is bad altogether: 
 Crump V. Jdney et al, 1 C. tfe M. 362 ; Clarkson v. Lawson, 6 Bing. 206 ; Foxdkes v. 
 Scarf e (t al, 4 Soott, N. R. 713. The record is still to be taken as a whole record, 
 and the meaning of the section is that when at the trial the facts of a cast can be 
 t'lken dUtributiveiy, tfiey are to be so taken : Wilkinson v. Ktrby, 23 L. J. C. P. 228 
 per Jervis, C, J. 
 
 (c) The same in principle as in old Stat. U. C. 11 Geo. IV. cap. 5, s. 1. 
 
 ((/) The right of a defendant to costs in general depends upon Stat. 23 Henry 
 VIII. cap. 15 (extended by 4 Jac. I. cap. 3), which statute as construed in several 
 cases applies, although a defendant cannot have a verdict in his favor on every 
 prt of tlie record : Elderton v. Enimens, 5 D. & L. 489. Costs are only given by 
 this section to a party who succeeds upon an issue raised on the record : Reynolds 
 V. H'irris, 3 C. B. N.S. 267 ; see also Traherne et al v. Gardner et al, 8 El. & B. 161 : 
 Dam V. Thomas, 5 Jur. N.S. 709. 
 
 (f) Taken from Eng. Stat 15 <fe 16 Vic. cap. 76, s. 76. 
 
 (/) Such was the practice at common law. One plea only was allowed to be 
 pleaded, and that plea true : Gully et al v. The Bishop of Exeter, 5 Bing, 45, per Best, 
 C.J. In several actions there is a fixed and appropriate pleJi for traversing the de- 
 claration, in cases where the defendant means to deny its whole allegations, or the 
 princi])ftl fact on which it is founded. The form of plea or traverse has usually been 
 denominated the general issue in the particular action. It appears to have been 
 so called because the issue that it tenders, Involving the whole declaration or the 
 principal part of it, is of a more general and comprehensive kind than that usually 
 tendered by a simple traverse. But as by the provision of recent rules of eourl 
 (II. T. 4 Wm. IV., corresponding to ours of E. T. 5 Vic. of which R. G. \A. 6 
 (( >('/. are re-enactments,) such issues are now more limited in their effect than 
 formerly, and the term "general issue" is therefore less appropriate: see R. O. pi. 
 1 6 (i se(j. and notes thereto ; also Sch. B. No. 30 et seq. to this act. To review the 
 j cases distinguishing what defences may be given in evidence under the generiil 
 i^«ne, and what roust be specially pleaded, would demand a treatise on pleading. 
 Reference may be here made to a Digest of the decisions, compiled by Uichai d 
 tharnockof Grav's Inn, London ; see also Blackie v. Pidding, 6 C. B. 196 ; Ch'imhy 
 V, Grundy, 2 C. L. Rep. 822. If the general issue and s])ecial pleas be pleaded 
 bv defendant, and if it appear to the judge in chambers that a question might 
 I arise at nisi prius as to the admissibility as evidence of the matter specially 
 pleaded under the general issue, the special pleas should be allowed to stand : 
 Imdey v. Gye, 22 L. J. Ex. 9. 
 9 
 
130 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [S. 105. 
 
 
 |l ;, 
 
 
 c 4) 
 
 -;js 
 
 I IN 
 
 11. 
 
 hSt' 
 
 
 
 niiy uiateriiil allcgatioo in the declaration (g^, although it 
 might have been included in a general traverse. (Ji) 19 Vic. 
 c. 43, s. 125. 
 
 (ff) The general rule of law undonbtedly is, that a party shall not be allowed to 
 take his traverse in such a form as to make matter which is immaterial, parcel of 
 the issue : Colborne v. Slockdah, Stra. 493 ; Gorain v. Sweeting, 2 Wms. Saunders, 
 204 a. But in certain cases, in which material and immaterial matters are mixed 
 up in <ine combined and undivided allegation, the opposite party has been held 
 entitled to traverse the whole compound allegation in the terms in which it is 
 pleaded: Tatem et al v. Perient, Yelv. 195; Smith y. Dixon, 7 A. <fe E. 1; Cutis v. 
 Surriilge el al, 11 Jnr. 685; Kinffy. Norman, 4 C. B. 884. No traverse should be 
 so large as to compel the opposite party to prove more than he otherwise would 
 be bound to do in order to support his claim or defence : Eden y. Turtle, 10 51. <fe W. 
 635 ; liradiey v. Bardsleu ei al, 14 M. & W. 873 ; Soare/i v. Gli/n el al, 8 Q. B. 24. 
 The rules as to traverses are in general terras thus mentioned in Steph. PI. 7 ed. 
 220 etKrq. I. The traverse must not be taken on an immaterial point. 2. It must 
 not be too largo, nor, on the other hand, too narrow. Numerous authorities are 
 referred to by the learned author in support of these rules. The obligation to 
 apjdy for leave to plead double or else judgment, applies as much to traverses as 
 to affirmative pleadings: Jiosse v. Cnmmings, 2 U. C. L. J. 227. Plaintiflf of course 
 will not be allowed to attempt a traverse of that which is not allowed in tiie 
 declination : Jarvis v. Durand, 4 U. C. L. J. 22. But there are certain plens of 
 which any two or more of them may be pleaded together as of course, witliout 
 leave of the court or a judge: see section 112. 
 
 (h) In order that n defendant may not be put in n worse situation than wlien 
 the general issue in its widest acceptation of the term was permitted, provision 
 has been made for the allowance of several special pleas, separately traversing 
 material allegations formerly traversed by one general plea. Instead of one jdra 
 only, as at common law, being allowed, it is not an uncommon thing now to iind 
 several upon the record. The strictness has been relaxed, for the promotion, but 
 not for the perversion of justice: Coolingv. Tlie Great Northern Railway Co. 15Q.B. 
 49(i, r^'' Campbell, C. J. The concluding part of the section under consideration 
 does not apply to the pleading of several matters, as to which generally, see section 
 110 and notes thereto. The express power to traverse specially an allegation 
 contained in the declaration, altnough it might have been included in a general 
 travei'se, is new, and such as has been heretofore refused : Sutherland v. Pratt el d, 
 1 1 M. & W. 312, per Parke, B. The true principle of pleading several matters is, 
 tiiat if tlie justice of tlie case require it, the court will not prevent it ; but the court 
 will not allow a party so to plead, merely for the purpose of throwing difficulties in 
 the way of his opponent : Gully et al v. Bishop of Exeter, 5 Bing. 48, per Gasclee, J. 
 Thtj object of pleading is to narrow the matter in dispute to a single point ; tiiere 
 fore a defendant is not permitted to traverse a series of facts wliolly immaterial 
 to his defence: Jh. 45, per Best, C. J. In criminal caset the law allows a prisoner 
 to ]iut the prosecutor upon proving his case in every material particular ; but in 
 civil proceedings the interest of both parties requires that they should be put to 
 ns little expense as possible. It is an important duty of the court, in the exercise 
 of its discretion as to pleas, to render justice as cheap and as expeditious as 
 possible: lb. 46; see also The London and Brighton Ji. Co. v. Wilson, 6 Bing. 
 N. C. 135 ; I'he London <£" Brighton R. Co. v. Fairdoiigh, lb. 270 ; The South-Easlern 
 R. Co. V. Hebbkwhile, 1 2 A. & E. 497. If a defendant, under colour of this section 
 abuse tlir powers conferred as to traversing separately material allegations of 
 plaintiff's declaration, not admissible under section 112, the course of the latter is 
 (if no leave has been granted to traverse separately under section 110 the several 
 matters), to sign judgment under section 113; but if leave haa been given, then 
 
s. IOC] 
 
 MODE OF TRAVERSING BY TLA I Nil FP. 
 
 ISl 
 
 106t (0 A Plaintiff may traverse the whole of any plea Traversing 
 or subsequent pleading of the Defendant by a general 
 denial, (;") or admitting some part or parts thereof (k) may 
 
 plainliif must npply to the court or a jud^e, under the provisions of section 119 
 of this net. Where, since tliis act, in an action of crirn. con., defendant applied 
 under section 111) to be allowed to plead, 1st, not guilty; -nd, that the person 
 whom defendant debauched was not plaitititt".s wife; Srd, leave and license of 
 phiintitT; 4th, that before and at the time of the cominittina: of the grievances 
 coni]ilained of. plaintitf had relinfiuished and renounced the society, comfort and 
 assistnuce of his wife, ai.d hud separated himself and was livini^ apart from her, 
 and had never since returned to her ; Burns, J., disallowed the second plea ns 
 bei.ic; included in the first, and therefore " unnecessary," and also disallowed the 
 fourtli, ns affording no answer to the declaration, and therefore " bad in substance" : 
 Tliom V. Nuildif, 2 U.C. L.J. 230. But see Patterson v. McGregor, 28 U.C.Q.B. 280, 
 
 (/) Taken from Eng. Stat. 15 «fe 10 Vie. cap. 1Q, s. 11. 
 
 {j) The general form of replication intended by this section is in the nature of 
 llie rejiliciition de injuria, and is indeed a substitute for it: Glover v. Dixon et at, 
 y I-^x. 158; Stewart v. Iloteland*, MS. U. C. C. P. E. T. 1865. And with respect to 
 the replication de injuria, it was a settled rule that it put in issue only the material 
 allcirations of the plea : Davis v. Chnpmnn. 2 M. & G. 927, per Tindal, C. J. ; Ellcin 
 V. .liiMon, 13 M. <fe W. 655 ; Forstcr v. licttes ct at, 5 U. C. il B. 69!) ; and was only 
 pleaded when the plea contained matter of confession or of excuse : Croyate's cane, 
 8 Ron. 67 a ; WJiiftai.er etal v. Mason, 2 Bing. N. C. 359 ; Inane v. Farrar, 1 M. & W. 
 C5; Parker V. Eileij, 3 M. & W. 230; Humphreys v. O'Camiel/, 7 M. & W. 370; »S'o//y 
 Hnlv. i\mA, 4 Dowl. P.O. 248; Jones d alw.'Senior. i M. &\V. 123; Noel v. liivh, 
 •t Dowl, P. C. 228 ; Salter v. Purvhell, 1 Q. B. 209 ; Svolt H at v. Chappelow, 2 Dowl. 
 X. S. 78 ; T/iompaon v. Brealcenridge et at, 3 0. S. 170 ; Blair v. Bruce, 5 O. S. 524 ; 
 Leonard v. Buchanan, M. T. 6 Vic. MS. R. A II. Dig. " De Injuria," 4 ; Davidson v. 
 Barlltll et at, 1 U.C. Q.B. 50 ; Hamdton v. Davis et al, lb. 176 ; Vanorman v. Leonard, 
 2 U.C. Q.B. 72; Rattray v. McDonald et al, 3 U.C. Q.B. 354; Bown v. Hawke, 5 U.C. 
 Q.B. .168 ; McCnniffe v. Allan el al, lb. 571; Macfarlane v. Idzar et al, lb. 580; BoswHl 
 V. Rutlan, 6 U.C. Q.B. 199 ; Muttleberry ct al v. Hornhii et al, 6 U.C. Q.B. 61 ; Brooke 
 v. McC'JHsland, lb. 104; Bicharditon v. Phippen, 9 U.C. Q.B. 255; Parks \. Ma ijliee, 
 2 U. C. C. P. 257 ; Coleman v. Sherwood, 3 U. C. C. P. 359 ; Walker et al v. IL'ivke, 
 lb. 428. Where the plea contained matter of denial and not of excuse, plaintilf's 
 (iiiiy course, if not otherwise able to put in issue by one general replication the 
 whole subject matter of the defence, was to take issue separately on independent 
 and material allegations: Heffil v. Green, 1 M. & W. 328. This section does not 
 dispense with the necessity for replying specially where that was necessary before 
 the act: Glover v. Dixon etal, 9 Ex. 168. It does not appear to npply to a plaintiff 
 in replevin : Trcnty. Hunt, 9 Ex. 14. Qucere, if a general replication is a sutfieient 
 traverse of a plea by a defendant averring performance of conditions precedent: 
 see TctU)/ ct al v. Wanless, L. 11. 2 E.v. 26, per Bramwell, B. De injuria has been 
 hold to be n good replication to a general or special plea of fraud : Wa-shbouru v. 
 Burrows, 1 Ex. 107. 
 
 (i) It is nn esti;blished rule of pleading, that by pleading over, every traversa- 
 ble nllegntion whicii is not traversed is admitted : Hwlvm v. Jones, 1 Salk. 90. 
 But allegations not material are not thereby confessed : Rex v. Bishop of Chester et 
 «', 2 Salk. 560. In a case, which underwent much discussion in the House of 
 Lords, it was held that the rule as to admissions upon the record applied only to 
 laws in which there was an express admission upon the record, or a pleading in 
 wnftssion and avoidance : Givynne v. Burnell et al, 6 Eing. N. C 453 ; and that a 
 rq)licatiou which put in issue part only of a plea, thereby admitted the residue to 
 

 Dm 
 
 m 
 
 Efplii-a- 
 
 tlUllH, &c. 
 
 Joining 
 issue. 
 
 132 TUB COMMON LAW PROCEDURE ACT. [SS. 107, 108. 
 
 deny all the rest or deny any one or more allegations, (l) 
 19 Vic. c. 43, s. 12G. 
 
 107. (tn) A Defendant may in the like manner (n) deny 
 the whole or part of a replication or subsequent pleading of 
 the PlaintiflF. 19 Vic. c. 43, s. 127. 
 
 108. (o) Either party may plead in answer to the plea or 
 subsequent pleading of his adversary, that he joins issue 
 thereon, which joinder of issue may be as follows, or to the 
 like efiFect : (^) 
 
 The Plaintiff joins issue (q) on the Defendant's, first (&c. 
 specifying which or what part) plea. 
 
 The Defendant joins issue upon the Plaintiff's replication 
 to the first (&c. specifying tchich) plea. 
 
 JoiniicrUow And such form of joinder of issue shall be deemed to be a 
 denial of the substance 'of the plea or other subsequent plead- 
 
 be true ; and that if such residue were true and a good defence, a repleader miijlit 
 be awarded at the instance of defendant: see Atkinson et al v. Davles, 2 Dowl. Ji.S. 
 778 : see also R. «fe H. Dig. "Arrest of Judgment," passim and " Repleader." Some- 
 times an express admission is made of certain facts contained in a pleading, with a 
 denial of other facts upon which issue is taken : see Carnahy v. Welhy, 8 A. &, E. 
 872; Hewitt v. Macquire, 21 L. J. Ex. 30; Tuckey v. Hawkins, 4 C. B. C55. 
 
 {I) This is applying to plaintiffs, in their replications, the rules already onacted 
 as to defendants in their pleas ; sec. 105. It has never been doubted that a plaintiff 
 who is at liberty to deny several facts stated in a plea, might select some only and 
 traverse them : Oartcn v. Robinson, 2 Dowl. N. S. 47, per Wiglitman, J. 
 
 (m) Taken from Eng. Stat. 16 <fe 16 Vic. cap. 76, s. 78. 
 
 (n) In like manner, Ac, i. e. in the manner prescribed in sections 105, 106. Tiiia 
 section in effect extends the doctrine of Cousins v. I'addon, 2 C. M. & R. 547, 
 mentioned in notes to sections 105, 106, to all descriptions of pleadings: Parry. 
 Jewell, 16 C. B. 684. 
 
 (o) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 79. 
 
 (p) Compliance with section 77 as to the intitling of the pleading is neces- 
 sary : see notes in that section. 
 
 (q) " Takes issue" are the words used in Schedule B,, No. 43. It is suggested 
 that in practice the plaintiff "joins issue" upon a negative plea, and " takes issue" 
 upon an affirmative one. When he joins issue it is unnecessary to add any furtlicr 
 pleading on the part of the defendant, the issue beinn; then completed. But -if 
 plaintiff " takes issue," it seems that he ought to add a similiter for defendant. 
 This he may do as part of the issue and may at once proceed : Paterson, Macna- 
 mara & Marshall's Prac. 202. The similiter is not abolished by the C. L. P. Act. 
 It may still be used as a pleading and as "the last pleading," for the purpose of 
 giving notice that a jury is required under the Law Reform Act of Ontario: 
 Quebec Bank v. Grai/ et al, 6 U. C. L. J. N.S. 70. 
 
 iudj^ment: Tall 
 
 
s 108.] 
 
 JOINDER OF ISSUE. 
 
 133 
 
 iag, and an issue thereon; (r) and in all cases where the 
 Plaintiflf's pleading is in denial of the pleading of the Defen- 
 dant, or some part of it, the Plaintiff may add a joinder of 
 issue for the Defendant, (s) 19 Vic. o. 43, s. 128. 
 
 (c) The object of this new form is merely to enable a party in a compendious 
 manner to traverse all those allegations in a pleading which he could have 
 traversed before the act: Glovtr v. Dixon et al, 9 Ex. 169, ;)er Pollock, C. B. 
 The new form only traverses such material facts as conld formerly be traversed, 
 but whore the plaintiff was bound to new assign, he must still do so: lb. per 
 i'arke, B. For example, if in trespass quare clausum frcgit defendant having an 
 casement which ho pleads, but which in use he exceeded, it is for plaintiff to new 
 assign : Colcfieater v. Roberts, 4 M. & W. Y69. Special provision is by tliis act 
 made for new assignments : section 115. But to return to the text. It is enacted 
 that the new form of joinder of issm " shall be deemed to be a denial of the sub- 
 stance of the plea or other subsequent pleading and an issue thereon." And it is 
 a rule that no new matter foreign to the issue joinc ^ !iall bo admissible in 
 evidence. Such facts therefore as would go to dUprove the plea or other pleading 
 upon which issue is joined would be proper evidence. New matter, if not dis- 
 proving anything advanced in the plea, must be specially pleaded : Snijre v. 
 Earl of Roihford, 2 W. Bl. 1165 ; Thompam v. Ilardinge et al, 1 C. B. 940 ; Ewer v, 
 JoncKfi Q. B. 623 ; Ryan v. Clark et al, 7 D. <fe L. 8 ; Evans v. Ogilvie, 2 Y. & J. 79 ; 
 Cowling V. Higginson, 4 M. <fe W. 245 ; Ptnn v. Ward, 2 C. M. <fe R. 338 ; Oakes et 
 nx. V. Wood, 2 M. <fe W. 791 ; Gowlishaw v. Chahjn, 1 C. & J. 48; Wyldv. Pick ford 
 (t al, 8 M. <fe W. 443 ; Baker v. Walker, 3 D. «fe L. 46 ; Mag v. Segler et al, 2 Ex 
 563 ; Tolhurst v. Notley, 17 L. J. Q.B. 97 ; Weeding v. Aldrich, 9 A. & E. 861 ; Jones 
 V. Jones et al, 4 D, <fe L. 494 ; Robertson v. Oantlett, lb. 548 ; Egre v. Scovell et al, 
 5 D. <fe L. 516 ; Powell v. Bradbury et al, 7 C. B. 201 ; Spotswoode v. Burrow et al, 
 19 L. J. Ex, 226. 
 
 (s) The power of one party to join issue for the other appears to be restricted 
 to plaintiffs. It is usual for plaintiff to add the joinder, make up the issue, and 
 deliver it with notice of trial, all at the same time. But defendant is not conclu- 
 sively bound by these acts of plaintiff. He may serve upon plaintiff a notice 
 that " he does not receive the issue delivered in this cause, but considers the same 
 as a replication." Thereupon it is open for defendant either to plead or demur in 
 the usual manner. T!ie English practice limits defendant for this purpose to four 
 days: Adkins v. Anderson, 1 Dowl. N.S. 877; and our practice is now similar: 
 K. G. pr. 33. If defendant neither plead nor demur wi. in the time limited, plain- 
 tiffs course is to sign judgment for want of a plea : Twt/cross v. King, C Q. B. 663. 
 A demurrer that is frivolous entitles plaintiff to move to set it aside and to enter 
 judgment : Talbot v. Bulkeley, 4 D <& L. 306. But where there are pleas on the 
 lecord other than that demurred to, judgment so signed would appear to be iri-e- 
 gular: lb. The rule in such case should be to set aside the issue, trial, and subse- 
 quent proceedings : lb. And where in consequence of a frivolous demurrer plaintiff 
 was prevented from going to trial, the court notwithstanding the existence of 
 several issues made a rule absolute for plaintiff to sign judgment as for want of 
 a plea, unless defendant should consent to the following terms, viz., that the 
 pleadings ending in the demurrer be struck out, the defendant paying the costs 
 of the application, and of preparing for a trial which had been lost, within lour 
 days after application, and taking snort notice of trial for the sittings after teira 
 Tucker v. liarnesley, 4 D. <fe L. 292. But it has been held that if a defendant at 
 any stage of the cause strike out the joinder and demur, and that demurrer is not 
 "(t aside as frivolous, it renders nugatory a notice of trial previously givtn. 
 Nothing that plaintiff could afterwards do would render such notice good : P<o e 
 
m 
 
 184 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 109. 
 
 14 
 
 I , >,< (5'ti 
 
 Affidavit 
 may bu 
 reiiuii'eil. 
 
 ■i^K' 
 
 ^ 109. (0 Either party may, by leave of the Court or a 
 
 amidomur- Judge, (m) plead and demur to the same pleading at the same 
 
 nil!,' at the c i \ j r ^ r o 
 
 same time, time, (v) upou an aflidavit by such party or his Attorney, if 
 required by the Court or Judge, to the effect that he is 
 advised and believes that he has just ground to traverse the 
 several matters proposed to be traversed by him, and that the 
 several matters sought to be pleaded as aforesaid by way of 
 confession and avoidance are respectively true in substance 
 and in fi\ct, (w) and that he is further advised and believes 
 
 V. Pain et al, 2 L. M. & P. 613, per Erie, J. ; see nlso Lock v. The Wtltn, Somerset, 
 and WeyvmUh R. Co. 14 Law T. Hep. 415. 
 
 (<) Taken from Eng. Stat. 15 <fe 16 Vic. cap. 76, s. 80. Founded upon the first 
 report of the Common Law Commissioners, section 40. Held in England to apply 
 to pleadings in quare impedit : Marnhall v. Bishop of Exeter el al, 7 C. B. N.S. %ii\ 
 see also Regina v. Seale, 5 El. <fe B. 1 . The crown has a prerogative right to plead 
 double traverse and demur at the same time : Tohin et al v. The Queen, 14 C. B. N.S. 
 505 ; Regina v. Diplock, 19 L. T. N. S. 380. Held on an information for intrusion 
 upon land of the crown, there being no proof that the defendant had been out of 
 possession for twenty years, that under not guilty defendant could not give 
 evidence of title under a crown lease : Regina v. Sinnott, 27 U. C. Q. B. 539. 
 Held also on this plea that the crown was not entitled to judgment alone, but 
 must go down to trial to show intrusion and damages : Jb. 
 
 {u) Court or judge. Relative powers, see note w to section 48. 
 
 {v) Thepower of pleading and demurring is placed under the control of the 
 court in order that it may " not be resorted to for dela}\" The application 15 
 discretionary and may be made to the court or a judge in chambers. If to tlie 
 latter and he decline to grant it, the court above will not generally interfere with 
 his decision: Thompson v. Knowles, 18 Jur. 1018. And if defendant without leave 
 " plead and demur to the same pleading at the same time," it would seem that 
 plaintiff may treat the whole as a nullity and sign judgment: Bayley v. Baktr, 
 1 Dowl. N. S. 891. As to power of d^^fendant to rejoin and demur: see Dunne v. 
 Gumley, 8 Ir. C. L. R. App. ii. 
 
 {to) The privilege given by this section is only to be allowed where a man 
 shows by his own affidavit that he has merits in fact as well as in law : Lnmkij 
 V. Gye, 16 Jur. 1048. The court will not be satisfied with an affidavit following 
 the words of the statute (" he is advised and believed," tfec.) where the matters 
 are within the personal knowledge of the party pleading: lb. per Parke, B. 
 In such a case the affidavit must be positive ; but in other cases expression 
 of belief in the words of the statute will be sufficient: lb. If a third person 
 b" vouched by defendant, it should be shown by him either that he has made 
 
 luiry cf that person, or that it would be impossible or inconvenient so to do : 
 i ., ^1. an action on a contract the court allowed defendant both to plead 
 .•1 ..mur to the declaration, though the validity of the contract sued upon 
 ho f->c.ii affirmed on a motion for an injunction in the court of Chancery, to 
 .i' 'io defendant was a party, and in the decision of which court he had 
 ii<,V' ■ "°d: Ih. So to a declaration alleging that the di^fendant requested the 
 plaiutiti' to lend him a sum of money, and falsely, fraudulently, and deceitfully 
 represented to the plaintiff that the defendant had attained the age of twenty-one 
 years, and that the plaintiff confiding in the truth of the said representation and 
 
s. 109] 
 
 PLEADIXa AND DEMUailING AT SAME TIME. 
 
 135 
 
 that the objections raised by such demurrer are good uud 
 viilid objections in law, (x) and the Court or a Judge luoy 
 (lircRt which issue shall bo Hrst disposed of. (./y) 19 Vic. c. 
 4:], s. 129. 
 
 preteiu'o, did lend the defondnnt a sum of money, Ac. : wliorens the dofi-ndant lind 
 not at tlie time of his making tlie suid representntion and pretence, attnined the 
 nffu of twenty-one, but was nn infant under that ago, as the defendant at tlie time 
 of liirf making tlie said representation well knew, and that the defendant refused 
 t.) pay the said loan, dsc., whereby the plaintiff was damaged, itc. : Price v. llctmlt, 
 8 Kx. 14H. Defendant obtained leave to demur and to plead, first, not guiity, nna 
 SL'comlly, n traverse that plaintiff contided in the alleged fraudulent representation 
 upon ail affidavit of the defendant's attorney, which stated that he was advised 
 and believed that the defendant iiad under the circumstances aforesaid just ground 
 lo plead not guilty to the declaration, and also a traverse that plaintiff confided 
 in the alleged fraudi'lont representation, and tiiat he was also advised and believed 
 that tlie declaration would be held bad in substance on demurrer : lb. In an 
 action to recover the price of a horse sold, the defendant pleaded that ho became 
 and was indebted to plaintiff bj' means of the fraud of plaintiff. The plaintiff 
 apjilied for leave to demur and to reply to that plea, and it was refused: Lawton 
 v. Ebmre, 30 L. T. Kep. 244. 
 
 {i) As to which see sections 119, 123, of this oct and notes thereto, 
 
 (v) The meaning of this provision is that it shall be in the discretion of the 
 court in which the cause is entered to direct which issue shall be first disposed of 
 in that court. Therefore where there were issues in law and in fact in a case, 
 and the former were decided in favor of the plaintiff, the court in which the deci- 
 sion took place refused to delay the issues in fact until the issues in law were 
 finally disposed of in n court of error, where defendant contemplated bringing the 
 case; Lundei/ v. Gi/e, 2 El. <fe B, 216. Now in all cases where leave is given to 
 raise an issue or issues of law together with an issue or issues of fact to any 
 declaration or subsequent pleading, the issue or issues of law shall be determined 
 before the trial of the issue or issues of fact, unless otherwise expressly ordered 
 by the court or judge in the rule or order permitting such issue or issues to bo 
 raised; Rule M. T. 29 Vic. 25 U. C. Q. B. 150. It is generally advisable to deter- 
 mine a demurrer first, for if it goes to the whole cause of action and is decided 
 against the plaintiff", it is conclusive and there is no occasion afterwards to try the 
 issue in fact: Price v. Ilcwett, 8 Ex. 148; Criicknell v. Trueinan, 9 M. & W. 684 
 The Munkipality of Sandwich v. Brouillard, 3 U. C. L. J. 113 ; Kniciht v. Li/nch, 
 8 Jr. C. L. R. App. Ixvii. Whereas if the issue in fact is first tried and found 
 for the plaintiff, he must still proceed to the determination of the demurrer, and, 
 if that be determined against him, he will not be allowed his costs on the trial 
 of tiio issue in fact : 2 \Vms. Saunders, 300 (3). But see Jiird v. lli'jffinxun, 5 A 
 <t E. 83, according to which tlie plaintiff would be entitled to costs of the trial 
 But if it appear that the decision of the demurrer will not have any bearing 
 on the issues in fact, the court or judge may have good reason for exiiressly 
 directing that the issue in law shall not be tried before the issue in fact 
 Roberts v. Taylor et al, 1 }A. & G. 659. If the issues are to be tried before the de- 
 murrer is argued the damages are said to be contingent, depending upon the event 
 of the demurrer, and it is necessary for the jury to assess contingent damages. 
 The award of venire in such a case is as well to try tiie issue as to inquire of the 
 contingent damages: 2 Wms. Saunders, 300 (3). It has been lield that where 
 the venire was in this form, but the jury without assessing contingent damages on 
 the issue in law found a general verdict for the defendant upon all the issues in 
 fact, that the plaintiff was not entitled to a venire de novo : Gregory v. Duke of 
 
J U'J.'S l_i— 1 J 
 
 136 
 
 
 ''S'>r 
 
 THE COMMON LAW PROCEDURE ACT. [s. IJO. 
 
 110. («) The PlaintiflF may, by leave of the Court or a 
 
 Bnimwklc tt al, 6 M. <fe O. 963. And where leave hnd been granted to n defen- 
 dant to plead nnd demur and directions were given that the demurrer ehould be 
 first disposed of, and the parties thereupon proceeded to issue, and judgment was 
 given for plaintiff on a demurrer to a surrejoinder, on the ground tliat tlie plea 
 was bad, the court afterwards declined at plaintiffs instance to rescind the 
 judge's order, giving to defendant leave both to plead and demur : Sheehy v. The Pro- 
 fesnional Life Asmr. Co. 13 C. B. 787 ; see also Hinton v. Acraman, 4 D. «fe L. 462. 
 Pending tlie decision of issues in law, the courts have refused judgment as in ease 
 of a non-suit for not proceeding to trial pursuant to notice on issues in fact; 
 Connop et al v. Lei)t/, 6 O. dc L. 282. But in a case where defendant had pleaded 
 several pleas, to some of which plaintitf demurred and to otliers joined issue, and 
 tiie demurrers were argued and judgment given for defendant ; but plaintiff not 
 having proceeded to trial upon the issues in fact, defendant obtained a rule nisi 
 for judgment as in case of nonsuit, and on shewing cause the plaintiff offered a 
 atet proceiHus ; at the suggestion of the court a nolle prosequi was entered to so 
 mucli of the declaration as applied to the issues in fact, the defendant waiving his 
 right to c .s upon such nolle prosequi : Quarrington v. Arthur, 2 Dowl, N.S. 1036. 
 Seinble thot a stet processnta cannot bo entered to a part of a record : lb. Where 
 issues in law and in fact were joined on the same pleas, and the issues in fact 
 were first tried and found by the jury for the plaintiff and no motion was made 
 to set aside tlie verdict upon tlie issues in law coming up for argument, the court 
 declined to hear them, it being considered useless and unnecessary to determiue 
 pleas to be good in law which had been found bad in fact : Berbishire et al v, 
 Feehan et al. 12 U.C. C.P. fi02. Where defendant pleaded not guilty and a s[>ecial 
 plea, to wliich tlie plaintiff demurred, and carried the case to trial before argu- 
 ing tlie demurrer. Defendant obtained a verdict on not guilty. Plaintiff then 
 set down tlie demurrer for argument in order to obtain tlie costs of it, but the 
 court under the circumstances refused to hear the argument : Macmartin v. 7'/iomp- 
 son, 26 U. C. Q. B. 334. As to apportionment of costs if plaintiff succeed upon 
 issues in fact but fail upon issues in law or vice versa : see liird v. Higgimon, 
 6 A. A E. 83 ; Clarke v. Allalt, 4 C. B. 336 ; Partridge v. Gardner, 4 Ex. 303 ; 
 Uowell v, Jiodbard, lb. 309 ; Willia>ns et al v. Vines et al, 9 Jur. 809 ; Foole v. Grant- 
 ham, 2 I>. & L. 622 ; Davis v. Davis, 5 0. 8. 453 ; Sheldon v. Hamilton, MS. M. T. 
 3 Vic. R. & H. Dig. " Costs," III. 3 ; Bank B. N. America v. Ainky, 7 U. C. Q.B. 
 621 ; Scott V. Count de liichebourg, 11 C. B. 447; Smith v. Hartley, lb. 678. 
 
 (2) Taken from Eng. Stat. 15 <fe 16 Vic. cap. 76, s. 81 ; founded upon the first report 
 of the Common Law Comrs. section 59. The crown has the prerogative right by 
 distinct replications to reply several matters : liegina v. Deptock, 19 L.T. N.S. 380. 
 Tlie provisions of the statute of Anne, which enable a defendant, by leave of the 
 court, to plead several matters, are by this section extended to plaintiffs, who may 
 in like manner, in answer to the plea or subsequent pleading of a defendant, reply 
 several matters. The statute of Anne is as follows: " That from and after, Ac, it 
 shall nnd may be lawful for any defendant or tenant in any action or suit, or for any 
 plaintiff in replevin, in any court of record, with the leave of the same court, to plead 
 ns many several matters thereto as he shall think necessary for his defence :" 4 Anne, 
 cap. 16, s. 4. The practice which for some time prevailed under this act required 
 limitation, and was in England restrained by the rule following. " Pleas, &c., 
 founded on one and the same principal matter, out varied in statement, description 
 or circumstances only (and pleas in bar in replevin are within the rule), are 
 not io be allowed:" Aeg. Gen. 5 H. T. 4 Wm. IV., Jarvis, N. R, 118. If severa' 
 counts, pleas, &c., were pleaded contrary to this rule, a judge had express power 
 upon application, to strike out, at the costs of the party pleading, all pleadings in 
 violation of the rule : lieg. Gen. 6 H. T. 4 Wm. IV., Jarvis N. R, 120. A similar 
 rule was adopted by the courts in this province. Our rule 32 of E. T. 6 Vic. 
 
s. 110.] 
 
 PLEADING SEVERAL MATTERS. 
 
 137 
 
 Judjje, («) plead in answer to the plea or subsequent plend- Scvnni nmt- 
 inffof tlie Defendant as many several matters {fi) as he thinks ililaiiri'n)* 
 necessary to sustain his action, (c) and the defendant may by t:"int'orofu 
 leave of the Court or a Judge plead in answer to the declara- '^"''*^^'" 
 tion or other subsequent pleading of the Plaintiff, (d) as many 
 
 Cnm. R. 38, was precisely the snino as English rule 5, above mentioned. It wns 
 licit! ns to neveml pleas, that if " founded on one and the same principnl matter, 
 lint vnried in statement, «fec,, they should not he allowed:" Johmouv. llnuter, 1 U. 
 C. Q. B. 280. It was also held that although in this province there wis no rule 
 like tlie English rule 6, authorising a judge to strike out pleas filed in violation of 
 Knsli'li rule 5, yet that our judges had the power as to pleas filed in clear violation 
 of our rule 32 : lb. The practice in this respect is now regulated by U. G. pi. 2. 
 
 (a) Court or a judge. Relative powers : see note w to section 48. 
 
 (i) Several matters, Ac. This expression, when taken in reference to the prin- 
 ciples of pleading, must mean either distinct answers to the pleading opposed: 
 (Joolhi;i V. The Great Northern 11. Co. 19 L. J. Q. B. 529, or distinct answers or 
 travei-ses to one or more specific and material allegations of such pleading : sec- 
 tions 105, lOfi, 107. 
 
 ft) The right of a plaintiff to reply double is new, and by this statute for the 
 first time authorised. It was held, on an applicotion by a plaintiff under the 
 F.n"]isii C. L. P. Act for leave to traverse defendant's plea and to reply specially 
 npon an affidavit in general terms, that there was reasonable ground to traverse 
 tlie plea, and that the matters proposed to be replied specially were true ; that 
 tlie afiidavit was sufficient: Pennall et al v. Clarke, 1 C. L, Rep. 703. But it is in 
 tlie discretion of the court or a judge to require the facts to be set forth at length, 
 in order to determine the necessity for the application: lb. Where in an action 
 liy assignees of o bankrupt on a covenant by defendant to pay money to the bank- 
 rupt, defendant pleaded that on a treaty of marriage between the bankrupt and 
 his wife, it was agreed that he should covenant to pay to trustees £10,00') and 
 interest, and assign the moneys mentioned in the declaration for securing payment 
 of said sum ; and tiiat he entered into such covenant and made such assignment 
 nnd contracted the marriage before his bankruptcy. To this plaintiff made nppli- 
 lation for leave to reply double; first, a traverse of the plea; secondly, that the 
 treaty of marriage, the settlement, the assignment, and the marriage, were respec- 
 tively entered into and solemnized in pursuance of a fraudulent arrangement 
 between the bankrupt ond his wife, to defeat creditors, he being at the time in a 
 state of hopeless insolvency. The application was refused on the common affidavit, 
 bnt ffrantud on an affidavit specially denying the allegations of the plea, and aver- 
 rin'^ that the deeds had been ordered by the Court of Chancery to be delivered up 
 to be cancelled, and affirming the truth of the matter intended to be replied : lb. 
 If a plea be divisible in its nature, a plaintiff may without leave reply one matter 
 to one part, nnd a different matter to another, the several matters together forming 
 (inly one replication. As to the time within which a plaintiff must reply, see sec- 
 tion 92 and notes thereto. This section applies to dower in the same manner ns to 
 any other form of action : Street v. Dolson, 2 U. C. L. J. 208. A proceeding by 
 mlila (jucrcla was held to be an " action or suit" within the meaning of the statute 
 of Aune: Giles v. llutt et al., 5 D. <& L. 387; but an information of intrusion at 
 I tiie suit of the crown was held not to be within that statute: Attorney-General v. 
 DunaldiioH et al, 9 Dowl. P. C. 319. 
 
 ((/) An application to rejoin several matters was refused where it appeared that 
 the matters proposed to be rejoined would be a departure from the plea, and no 
 answer to the replication : iMfond v. Ruddock, 13 C. B. 813. 
 

 
 m 
 
 'i-^< 
 
 m 
 
 -i-r-- 
 
 i ■ ' '_'. J 
 
 It ! ■ 
 
 
 
 ■vlii^ 
 
 188 THE COMMON LAW PROCEDURE ACT. [s. 110. 
 
 several matters aa be thinks necessary for liis defence, (e) but 
 
 (e) At common law a defendant was allowed to plead one plea only, and it was 
 a princi))le that pleadings Bhould bo true, wiiicli can rarely be tlio ease wiiern 
 many pleaa are pleaded. But as it was sometimes found difficult to comprise the 
 merits of a defence in a single plea, the statute of Anne permitted a party to plead 
 as many as might be necessary to his defence, provided he obtained the knveof 
 the court, thircb;/ roufiuing him to such as mij^lit bo deemed exxcnilal to the jmlicchj 
 the caime : Gully it alv. Bmhop of Jixeter, 6 Biiig. 45, per liest, C. J. Althoiii,'li it is 
 not in the power of a judge to try the truth or falsity of a plea tipon affidavit: 
 Johmtoue v. luiowlen, 1 Dowl. N. S. 30, yet when called on to exercise his discre 
 tlon as to certain pleas being allowed, he must see to the powers with which lie is 
 ai'med by the statute of Anne. And it is quite clear that in a case where the pleas 
 are such as not to involve the real justice of the case, but to lead to rfrent exi/enm 
 and hilricaey at the trial, it is the exercise of a sound discretion not to allow tlieni to 
 bo put on the record : Ijondon and Brighton R. Co. v. Wiiion, 6 IVm^ N. C. 137, ]ift 
 Tindal, C. J. ; Same Plaintiffs v, Faircloitr/h, lb. 270, The allowance of sevenil \Am 
 since the abolition of the old form of general issue is intended for the promotion 
 and not for the perversion of justice ; and if a perversion is evident, it is the duty 
 of the judge to reject the plea: Cooling v. llie Great Northern R. Co. 16 Q.B. 4!iii, 
 per Campbell, C. J. It has been found necessary Lo make the rules of court and the 
 statute of Anne " a real acting power." There are some traverses whi(rh, nltlinu;,'h 
 they might not give an opening for judgment non obntante veredicto, are clearly so 
 much beside the merits that there is no hardship in obliging the party who has taken 
 them to stand upon others : Rj. 497, per Coleridge, J. The practice of placing nume- 
 rous and inconsistent pleas upon the record, ought to be discouraged : Duumorey. 
 Turleton, 16 L. A Eq. 392, /)er Campbell, C. J. It is usual for a defendant i.akin; 
 application to be allowed to pleaa several matters, to submit an abstract of tiw 
 pleas he proposes to plead: Dunmore v. Tarleton, 16 L. A Eq. !)92 ; Gilher v. Capftr, 
 25 L. lis Eq. 417. It is not necessary that the abstract should be critically precise 
 or full : liedelh el at v. Jfimseg, 2 D. & L. 322. A variance between the pleas as deli- 
 vered and the abstract, which is not substantial or calculated to embarrass, will not 
 entitle plaintiff to sign judgment: Dunmore v. Tarleton, 16 L. &. Eq. 392 ; WilUv. 
 UobiuKon, 5 Ex. 302. If the pleas delivered substantially vary from the abstract 
 submitted, plaintiff may move to strike them out : HoUiday v. Bohn, 3 M. it G. 115; 
 Flight V. Smale. 4 C. B. 766 ; and in the Exchequer in England it has been liilJ 
 that in such case plaintiff may sign judgment as for want of a plea : Baily v. Baker, 
 9 M. & W. 769 ; see Bilh et al v. Hayman, 2 Ex. 323 ; Gabardi v. Harmer.'s Ex. 230; 
 Harvey V. Hamilton, 4 Ex. 43; Wills v. Robinson, 5 Ex. 302. In an action fortlit 
 infringement of a patent, the court, upon the affidavit made necessary by this 
 section, allowed defendant to plead, Jirst, not guilty ; secondly, that the patentee 
 was not the inventor; thirdly, non concessit; fourthly, that the invention was not 
 a manufacture; fiftldy, that the invention was not new; sixthly, that no sufficient 
 specification was enrolled: Piatt et al v. Else et al, 8 Ex. 364. But where, to a 
 similar action, Piatt, B., allowed the defendant to plead that the plaintiff havin:,' 
 petitioned for letters patent, his petition was referred to the Solicitor-General, lo 
 whom he presented in a paper writing, setting forth its terms, that the said inven- 
 tion consisted of the matter therein mentioned ; that the Solicitor-General, contidin? 
 in such representation, reported to her Majesty that letters patent might be granted; 
 that the plaintiff, after the grant of the said letters patent, enrolled liis specitica 
 tion, and therein falsely described his invention ; and that so much of the siiiJ 
 invention as was stated in the specification was not part of the invention for which 
 the said letters patent bad been granted : held, on motion to rescind the order and 
 disallow the plea, that it was bad as pleading evidence: Hancock v. Noyes, 9 Kx. 
 888. A defendant in this province since the passing of this act having obtainiJ 
 leave to plead several matters to a declaration for an assault and battery, and 
 
8.110] 
 
 PLEADINQ SEVERAL MATTERS. 
 
 189 
 
 Imvinij ])loniled, frst, not gnilty ; secondli/, justification ; thirdly, ion aasanU demesne, 
 was ujiun tho subsequent ajiplicntion of plaintiff ooinpolled to make an election 
 k'twf'tn •' not guilty and "justification," "those being inconsistent plens:" Gold- 
 lnr(/h V, LeMoH, 2 U.C. L. J, 20i), per Burns, J. But it is now the proetico to allow 
 Bucii plens, though inconsistent: Pnrccll v. Wehh, 6 Proc. R, 21). In an action of 
 (lower, leave was granted to plead tho following, Ist, Nt um/ues leizie; 2nd, Ne nntpica 
 aecoii/ile; 8rd, a release of dower; Street v. Cnthbert, MS. Ciiambers, Oct. 5, 1865, 
 wriiurns, J. In an action of assumpsit in whicli the declaration contained a special 
 count alleging that defendant, in consideration, <fec., agreed by writing under his 
 Imrul to mnk'j and deliver to plaintiff a good deed in fee simple of a certoin lot of 
 IihkI, and that although plaintiff had paid said consideration, yet that defendant had 
 fiiilt'd to make said deed, and the common indebitahia counts for money paid by 
 pliiintiff to defendant, Ac, leave was osked by defendant to plead — 1st. That he 
 (lid not agree as alleged ; 2nd. That plaintiff did not pay the consideralion in 
 first count mentioned; 3rd. That the agreement in first count mentioned was 
 obtftined by means of fraud and covin ; 4th. To residue of declarotion, not in- 
 debted. Jield that tho 2nd, 3rd, and 4th pleas might be allowed, but that defen- 
 dant should not ask leave to deny his ileed, and at the same time to plead in 
 confession and avoidance of it without showing that something material may turn 
 upon the construction of it, and Ist plea therefore disallowed: Taylor v. Mvk'mlaij, 
 3 U. C. L. J. 10. The allowance or disallowance of a plea is to be determined on 
 rot by its quality as being good or bad in law (assuming it not to bo wholly 
 frivolous), but with reference to any other pleas which may bo proposed, and 
 especially upon the consideration whether the question which it is desired to 
 raise upon it arises under any other plea: Gether v. Capper, 25 L. & Eq. 417. 
 And sembk, leave will be granted to plead any pleas necessary to raise every 
 question that can be justly suggested on any fair construction of a contract 
 (leciared on, even a construction of which the court wholly disapproves : lb. In 
 nn action on a charter party, by which a freighter was to pay the highest rate ot 
 freiiilit which ho could prove to have been paid for ships on the same voyoge, 
 and averment of general performance, and that the plaintiff was able to prove, as 
 the fact was, that the highest rate of freight was a certain sum which the defen- 
 dant thougii he hud notice would not pay. To this defendant proposed to plead, 
 fint, that plaintiff was not able to prove nor was it in fact; seconuhj, that plain- 
 tiflf did not in fact prove to the defendant that the rate of freight was as olleged. 
 The latter plea having been disallowed at Chambers the court allowed it, on con- 
 dition timt it might be demurred to at once, and argued on the last day of the 
 tiien term, that being in three days ; intimating an opinion at the same time that 
 it was a bad plea, but that they would not deprive the defendant of the opportu- 
 nity of placing it on the record to raise the question as to the construction of the 
 contract: lb. 
 
 A declaration contained three counts, of which the first was upon tho covenant 
 of defendant as sheriflf of the county of Oxford, given under stat. 3 \Vm. IV. c. 8, 
 and alleged that defendant had wilfully misconducted himself in his office of sheriff 
 by vohmtorily allowing one Sprague, who had been arrested at the suit of plaintiff, 
 to escape ; the second alleged that said Sprague being indebted to plaintiff, he 
 rlaced a writ of capias for his arrest in the hands of the defendant, who, though 
 lie had ample opportunity to take said Sprague, yet failed to do so, to the injury 
 of plaintiff; the third count alleged that Sprague being indebted to plaintiff, he 
 lilaced a writ of capias for his arrest in defendont's hands, and that defendant 
 fiilsely returned that said Sprague was not to be found in his county. Leave to 
 rload the following pleas was granted to defendant: To first count, Ist, that 
 fjprague was not indebted to plaintiff; 2nd, traverse of arrest; 3rd, that defendant 
 (lid not wilfully misconduct himself in his said office, to the damage of plaintiff; 
 j ^tli, that defendant did not voluntarily permit said Sprague to escape modo el 
 1 foma. To second count, 1st, that Sprague was not indebted to plaintiff; 2nd, 
 
140 
 
 tllE COMMON LAW PROCEDURE ACT. 
 
 [s. 110. 
 
 I ] 
 
 
 WA 
 
 not Kullty ; Srd, tlint dofcndnnt could not nrreat Sprnjj'io ; 4th, plnintlfT not (km. 
 nitioil. To third count. iHt, not guiuy ; 2nd, Sjjnifjiio not indehtod to pliiintilf; 
 Tiiylor V. Carroll, 8 U.C. L. J, 10, per Burns, .1. An iiflidavit of (kfondant'H attur. 
 ncy was filed whicli staled the inattors rc'(|uircd by tliis Hcction and kIsd the 
 nltornny's reasons for believing Ist plea to Ist count, Ist plea to JJnd count, ainl 
 Und plea to Srd count to bo true in substance and in fact: lb. 
 
 It is presumed that the courts, in disposing of ap])licntions made under tliu 
 section, will bo guided if not governed by cases decided under the statute of 
 Anne, many of-which will bo directly in point. They may bo conveniently rlussed 
 08 follows : — 
 
 I. — rieas disallowed. 
 
 Fimf — Pleas substantially tho snmo, for example, pleas calculated to raise i 
 point that n)ay bo raised imder other pleas on tho I'ecord: Hammond y. Tvdijm, 
 « King. 197; iieid et al v. Rew, 2 Dowl. N. S. 543 ; Daicnon v. Mavdonald, 2 M i 
 W. 26 ; Ihath et al v. Durant, 1 D. dc L. 571 ; Jenkim v. Creech, 6 Dowl. P.O. 293; 
 Turqimnd et al v. Hawlrey et al, !) M. «fe W. 727 ; Legge v. liofid, 9 Dowl. P. C. 39; 
 /»'o.w V. Cl{''>on et al, lb. I'o.SS ; The South Emttrn li. Co. v. I'kbblcwhite, 12 A. AE. 
 407; Jieavan v. Tanner, 8 Dowl. P. C. 870; Alexander v. Townleij, 2 Dowl. N. S. 
 886 ; Griffith v. Selbg, 9 Ex. 393 ; Municipality of Sandwich v. Drouillard, 3 U. C. 
 L. J. 1 1 3. 
 
 Secondly — Pleas merely inconsistent not objectionable: Wilkimon v. Smi{ 
 3 Dowl. P. C. 564. But objectionable if pleas grossly inconsistent with eacli other: 
 ' Maclcllan v. Howard, 4 T. II. 1 94 ; Jenkins v. Edwards, 6 T. H. 97 ; Dowgall v. Bot- 
 man, 3 Wils. 145 ; Anderson v. Anderson, 2 W. Bl. 1157 ; Fox v. Chandler, lb. 90.1; 
 /'a'merv. Wadbrookc, 2 Stra. 876; Launhtony. Ritchie, 3 Taunt. 385; Orgilh. 
 Kcmshead, 4 Taunt. 459 ; Chilly v. Hume, 13 East. 255 ; Shaw et al y. Lord Alvankii 
 2 Bing. 325 ; Whale v. Lenny et al, 6 Bing. 12 ; Steele v. Sterry et al, 1 Scott, 101; 
 Thommon v. Jackson et al, 3 M. & G. 621 ; The London and Brighton R. Co. v. Fait- 
 dough, 8 Dowl. P.O. 278; Same plaintiffs, v. Wilson, 8 Dowl. 1'. C. 40; Griffiths 
 Roberts, 2 M. & G. 907 ; Necdham v. Law, 2 Dowl. N.S. 1027 ; O'Brien v. (!lmmi. 
 15 M. <& W. 436. Vexatious: Gull yet aly. Bishop of Exeter, 5 Bing. 42; Cooling i 
 The Great Northern R. Co. 15 Q. B. 486; or absurd: Goodman v. Morrell, 1 Dowl. 
 N, S. 283 ; or fraudulent, such as release by a co-plaintiff who has no interest in 
 the action: Lascaridi et al v. Gumey et al, 3 F, <t F. lul. 
 
 Thirdly — Pleas immaterial and beside tho merits, being such as do not involve 
 the real justice of tho case: Murray v. Boucher, 9 Dowl. P.O. 537 ; 'The London & 
 Brighton R. Co. y. Wilson, 8 Dowl.'P. C. 40; PhilUps et al v. Claggett, 10 M. it W 
 102; Steward y. Dunn, 12 L. J, Ex. 213. 
 
 II. — Pleas allowed. 
 First — Pleas involving distinct grounds of defence: Triehnerr v. Duerr, 1 Bin?. 
 N. C. 266; Pym v. Grazebrook el al, 1 Dowl. N. S. 489; Buliey y. Foulkesdal, 
 1 Dowl. P. C. 839, 
 
 Secondly — Pleas though apparently the same, where it is possible that fads e.\i3t 
 under which the pleas raise distinct grounds of defence : Hart v. Bell, 1 Hodges, li; 
 Morse v. Appleby, 8 Dowl. P. C. 203 ; Johnstone v. Knowles, I Dowl. N.S. 30; Cmk 
 V. Almond, 5 Bing. N.C. 221 ; Leuckhart v. Cooper et al, 3 Dowl. P.O. 415 ; Slewati 
 V. Greaves et al, 10 M. <fe W. 711 ; Davidson v. Cooper et al, 11 M. «fe W. 778; Rot 
 V. Fuller, 7 Ex. 220. 
 
 Thirdly — Pleas apparently but not necessarily inconsistent and such as involve 
 distinct defences: Wilson y. Ames, 6 Taunt. 34Cf* Wilkinson y." Small, 3 Dowl. 
 P. C 564 ; Cooper v. Langdon, 10 M. & "W. 785. 
 
 Fourthly — Pleas showing different legal conclusions arising out of tho same 
 state of facts : Curry y. Arnott, 1 Dowl. P. C. 249 ; Gether v. Capper, 25 L. 4 Eq. 
 417. 
 
 
no.] 
 
 AFFIDAVIT FOR PLEADINO SEVERAL MATTERS. 
 
 141 
 
 if re'iuired by the Court or a Judge, (/) then only upon an on umi mt 
 afl'ulavit of the party making such application or liia Attor- "' 
 ney, (,'/) to the effect that ho is ntlvisod and bolievr-, that ho 
 liiis juMt ground to traverse the several matters proposed to bo 
 tr.ivor!<uJ by hiui, and that the several matters sought to bo 
 pleaded as aforesaid by way of confession and avoidance aro 
 re:j[iuetivcly true in substance and in fact; (/() and the costs of cdhu. 
 
 counts 
 Scott, 
 
 Fifthli/ — riens to tlio soverol counts of a declaration contulninq: more cc 
 tliim oiiu: Vere v. GoUkborouyh, 1 Bing. N. C. 353 ; LaiKjfovd v. Wooils, 8 S 
 N, U. liii'J. 
 
 Shthhi — Plena which taken together amount to one entire answer ; as to a 
 (k'ili(nitii)ii ill debt for £80. Ist, "never indebted" as to £,\0, nart tiiorcof; and 
 iw\, a ti'inlcr as to remaining .€40 ; Archer v. Garrard, 3 M. A vV. 63 ; Macher v. 
 U'dUuii^ li Dowl. P. C. 24«; Vere x. (Joldnboroitr/h, 1 King. N. C. 3C<3; DttnieU v. 
 I,,'im. 1 Dowl. N. S. 8-14 ; i'hillips et al v. C'lagiiett, lu 3l. & W. 102 ; ]Icirue;i v. 
 llamilhn, 4 Ex. 43 ; liosne et al v. Cummiiiffs, 2 U. C. L. J. 227, per Burns, .1. It is 
 apprt'lR'iidi'd that pleas classified under tliis sLxth subdivision may be pleaded 
 toijitliei' without leave ; as tliey constitute only ono answer to the several partj 
 of the (k'L'luration and may bo pleaded at comtnon law independently ot tho 
 Stiiliite of Anne : Dunkln v. Lewis, I Dowl. N. S. 844. Tlic statute is confined 
 i.. i^'ivin;; or withdrawing leave to plead more than ono plea to the same matter : 
 /'/, jjer Williams, J. Where a defendant had pleaded two pleas to tho same mutter, 
 line of wliiuli was disallowed by a judge, and he afterwards separately pleaded 
 tlicin to different parts oi tho same matter, the court refused to sot them aside : lb. 
 
 in.— Doubtful. 
 
 If tlid allowance or disallowance of several pleas under tho foregoing rules bo a 
 |ii)int of doubt or nicety, tho practice is to allow them • Tricke;/ v. Ye'indult, 
 1 liiii;,'. (it); Smith v. Dixon, 4 Dowl. P. C. 571 ; Ucntkij v. Keigldeii et al, 1 D. & L. 
 I'll; Jlayward v, Benmt, lb. 91l5 ; Lord Lucaii v. Uriuth ct al,' 28 L. T. R. 126. 
 
 (/) It is well to observe that an affidavit is not made necessary in all cases, 
 but only " if required by tho court or a judge." Tho practice however is in 
 jeiiei'ui for the cour^ or judge to require the affidavit, and such also is the prac- 
 tice in England : Dunmore v. Turhton, 16 L, «fe Eq. 301. 
 
 (;/) In general the affidavit may be to tho cff"ect that defendont has just ground 
 I to traverse tho several matters proposed to be traversed by him, and that tho 
 
 iveral matters sought to bo pleaded are respectively true in substance and in 
 j fiict; but ill some cases a more particular affidavit may be recjuircd. If made by 
 I the party, it should state that he is advised and believes. If by tho attorney, it 
 
 ^lionltl state that he is informed or instructed and believes : liowbothain v. Dnpree, 
 1 5 Duwl. P. C. 557 ; Schofield v. lluggins, 3 Dowl. P. C. 427. It may be made by 
 
 an a(/(7i< of defendant's attorney: Yeatman v. Distin, 3 U.C. L.J. 51. The afiidavit 
 I by tlie agent was to tho effect that the deponent "had been advised by defen- 
 idant's attornej' as to tho facts by him alleged to exist, and believed that to 
 I enable defendant to defend tho action properly according to the said facta he 
 
 sliould plead, &c. {naming the ^4eas) : lb, 
 
 [h) la an action on a bill of exchange drawn by one A. B. directed to defen- 
 liliuit, requiring him to pay to the order of said A, B. £750, sixty days after date, 
 jacMptud by defendant and indorsed by A. B. to plaintiff, defendant obtained a 
 puininuns for leave to plead. First — That the bill wa accepted by defendant for 
 ■' (accommodation of plaintiffs and said A. B., without any value or considera- 
 llion. ^Secondly — That same was accepted for the accommodation of said A. B. 
 
142 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 110. 
 
 A' 
 
 ■J; 
 
 m^i- 
 
 i/'m 
 
 ;■!'>■ 
 
 ifiSl 
 
 any issue, either of fact or of law, shall follow the finding or 
 judgment on such issue, (t) and be adjudged to the successful 
 
 without value or consideration, and indorsed by A. B. to plaintiffs without con- 
 sideration. Defendant's affidavit stated that the bill of exchange in the decinra- 
 t'jn mentioned was accepted by defendant without any value or consideration 
 received by defendant for said acceptance, and was as deponent believed for tiie 
 accominodfttion of plaintiffs and one A. B., the drawer thereof, to take certain 
 bills accepted by plaintiffs, drawn by said A. B. ; that deponent was advised and 
 believed that it was material for his defence to the action tlmt he should plead 
 that his said acceptance was either for the accommodation of plaintiff and A. B. 
 jointly, or of said A. B. only, and was without any value received by deponent; 
 summons made absolute, no cause haviiij^- been shown: Garrett el al v. Cullon, 
 
 2 U. 0. L. J. 233. So an acceptor of a !.;1) of exchanjjo was upon application for 
 leave allowed to deny, first, his acceptance, secotidli/, the indorsement to plninlitf 
 by payee, and, thirdly, to plead the Statute of Limitations : Yeatman v. Dkih, 
 
 3 U. C. L. J. 51. A defendant having obtained an order to plead several mattors 
 may elect to abandon it, or if before order the summons has been adjourmd lie 
 may waive it and plead without the order, pleas not requiring leave : HoU v, 
 Forshnll, 80 L. & Eq. 495, per Jervis, C. J. ; see also Danielx v. Lewh, 1 Dowl. 
 W.S. 844. Although it may be that a mere adjournment requires no order, yet if 
 there be any terms in favor of either party a substantive order should be drawn 
 up; Ih. Tiiore are authorities lo show that a party cannot be compelled to draw 
 up an order he has obtained: MacDongall v. N'cholls, 3 A. «fe E 813 ; Eilemorw 
 Ilojf'inan et al, 2 C. & J. 140 ; see also Brown v. MilUngton, 20 L. «fe Eq. 383. 
 
 (j) "Whore leave is reserved by a judge at nisi prius to enter a nonsuit, tlie 
 court will notwithstanding the leave reserved order a verdict for defendant on 
 one issue without disturbing the verdict for the plaintiff on another if that course 
 seems most consistent with doing justice between the parties: Wiuterbotlomw 
 Lord T)erbji, L. R. 2 Ex. 316. The right of a defendant to plead several pleas 
 under the statute of Anne, when exercised necessarily, gives rise to several dis- 
 tinct issues. The right extended to plaintiffs as well as defendants by this enact- 
 ment will have a tendency to multiply issues. AVhere there are several ploaa or 
 replications to the same subject matter, it is probable that some are true and 
 some false, so that some may be found for one party to the suit and the remain- 
 der for his opponent. As it is only just that a party iileading false or impro]ier 
 pleadings shoidd be made to bear the expense of them, the statute of Anne which 
 first gave the right to plead double, instead of single as at common law, provides 
 for the apportionment of costs consequent upon the decision of the several issues 
 raised. The provision is in these words, " That if any such matter («. «. tlie 
 several tters thought necessary by a defendant for his defence and by leave of 
 the cou. \ pleaded) shall upon a demurrer joined be deemed insufficient, costs 
 shall be given at the discretion of the court ; or if a verdict shall be found upon 
 any issue in the said cause for the plaintiff or defendant, costs shall be also given 
 in like manner ""less the judge who tried the said issue shall certify that the 
 said defendant had a probable cause to plead such matter, which upon the said 
 issue shall be found against him:" 4 Anne, cap. 16, s. 6. This statute, being « 
 remedial one, ought to be so construed as to advance the remedy. The costs 
 intended to be given appear to be all the costs which attend the unnecessary 
 pleading. This construction is analogous to thot which has been put upon the 
 stttlute of Gloucester, 6 Ed. I. cap. 1, s. 2, by which the costs of the writ only are 
 given to the plaiutifi' if he succeed, and yet that statute has always been held to 
 give all the costs of the suit: Vollum v. Simpson, 2 B. <fe P. 368, per Ileatli, J. 
 Althou";h a defendant, by pleading unnecessary pleas, may subject himself to tlie 
 costs of the issues raised on those pleas, yet if he obtain a verdict on an issue 
 
no.] 
 
 COSTS OF SEVERAL ISSUES. 
 
 143 
 
 party, whatever may be the jsult of the other issue or issues. 
 19 Vic. c 43, s. 130. 
 
 nisi'l by n pleft which \s an unqunliiiod bar to the action, and which if pleaded alone 
 would ctenvly entitle him to the general costs of the trial, the posfcea and general 
 co<t9 of the cause must be adjudged to him : Harfff ct ux v. Welts et ux, 8 Taunt. 129 ; 
 Ediviirth V. Bethel, 1 B. ife Al. 254. But reason and common sense dictate that if 
 lliu defendant has put the plaintiff to unnecessary expense by pleading tiint which 
 either in law or in fact turns out to bo unfounded, he shoulcf pay to plaintitf tliat 
 ixppiise, allhougli he may be successful upon the general question: Spencer v. 
 Hamerton, 4 A. <fe E. 413. The principle is clear, that plaintiff is entitled to be 
 reimbursed tl»c expcuse tb which he has been put by defendant pleading unfounded 
 nleas, notwithstanding the latter being entitled to the general costs of the cause : 
 Miill'ina v. Scott, 5 Bing. N.C. 423 ; Hart v. Cutbush, 2 Dowl. P.O. 450, And defen- 
 (hiiit, under such circumstances, is bound to pay not merely the costs of the pleadings, 
 but the costs of preparation of evidence on those pleadings: Spencer y. Ilamnrton, 
 4 A, k E. 413 ; Doe d. Smith et al v. Webber, 4 N. «fc M. 381 ; s. c. 1 II. *fc W. 10 ; 
 Emptnn v. Fairfax, 8 A. A E. 296. The case of Olhir\. Calvert, 1 Bing. 27."). which 
 decides the contrary, cannot be supported. The practice which it lays down was 
 eondeinned in Brooke v. Willet, 2 H. Bl. 435, and Vollumy. Simpnon, 2B. &; P. 308. 
 But defendant will not be entitled to the costs of a witness brought to prove an 
 issue on which ho failed, though the same witness proved an issue on which he 
 ^iieceedetl : Richards v. Cohen, 1 Dowl. P. C. 533 ; Larndcr v. Dick, 2 Dowl. P.O. 
 S:i:! ; E'tdcs v. Everatt et al, 3 Dowl. P. C. 687 ; Crowther v. Elwell, 4 M. A \V. 71. 
 Nor will he be entitled to the costs of an issue which is not found one way or the 
 other: Vallance v. Adams, 2 Dowl. P. C. 118. So if the plea bo bad on which 
 the defendant succeeded, he will not bo entitled to the costs of that issue: Cart- 
 tmr/lil V. Cook, 1 Dowl. P. C. 529 ; Ooodburne v. Bowman, 2 Dowl. P. C. 206 ; but 
 if iield good after argument, he will be entitled not only to the costs of the argu- 
 ment, but of the trial: Gosbell v. Archer, 2 A. «fe E. 600. On the other hand, if 
 till' defendant have a verdict on the general issue for instance, and the special 
 ]ileas be found for plaintiff, plaintiff will be entitled to the costs of those issues, 
 and llie witnesses to support them : Hart v. Culbush, 2 Dowl. P. C. 456 ; Dann v. 
 Cwise, lb. 269; Spencer v. Jlamerlon, 4 A. «fe E. 413. This is inapplicable if 
 plaintiif sue \n forma pauperis : Gougenheim y. Lane et al, 4 Dowl. P. C. 482. In 
 an action for false imprisonment, the defendant paid £5 into court. The i)liiintifr 
 neovered £25 by a verdict. A suggestion having been entered on the roll that 
 tlie acts complained of were done under 7 & 8 Geo. IV. cap. 30, s. 41, was tra- 
 versed, and a verdict found for defendant. Held, that defendant was not entitled 
 to tlie costs of the suggestion, either under the old law or this section : Nortoood 
 V. I'Ht, 6 Jur. N. S. 614. If a party is successfu! upon demurrer, he is entitled to 
 Ills costs, irrespective of the determination of the suit, where the judgment on 
 ik'inurror is given prior to the trial of the issues in fact: Bentley v. Duces, 23 
 L. •!. I'x. STO. But it the issues in fact be first disposed of, and render unnecessary 
 adeeision of the issues in law, the court may refuse to hear argument as to the 
 latter: Dc'-bishiree! alv, Feehanetal, 12 U.C.C.P. 502; Maemartin v. Thompson, 26 
 r.C.Q.R, 381. If the judge certify imder the statute of Anne, defendant need not 
 I'liv any sueh costs: Fri) v. Mon>:klon, 9 Dowl. P. C. 967. The Eng. Keg. Gen. 7 
 of'll, T 4 Wm. IV., Jervis N 1. 121, from which our rule 26 of E. T. 5 Vic. is 
 tikon. nnd which is substantially re-enacted in our R. G. pr. 51 , was held not to con- 
 tlii't with ihe practice decided in Spencer v. Hamerton, 4 A. A E. 413. Indeed the 
 rules of court, and especially the 11. G. pr. 61, more firmly oslnldish it. Kor did 
 
 thcdl 1 rules affect the statute of Anne as to the power of the jjdge to certify: 
 Hiibinsim V. Messcmjer, 8 A. <fe E. 606. The words " at the discretion of the court," 
 «« used in that statute, have been construed as not g'ving the power to refuse but 
 inly to tax costs: Dubtrley y. Pai/cel al, 2 T. 11. 391. Great difficulty is frequently 
 
144 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. llfl. 
 
 
 •■■i 
 
 1;'' 
 
 ai' i 
 
 
 experienced in the apportionment of costs under the statute and rules. Many of 
 the cases depend upon the particular circumstances attendinjf them, and nie in 
 themselves so various that no one case can be taken as an unqualified precedent; 
 Stale;/ v. Lonff, 6 Dowl. P. C. 61ft; Benny. Baleman, 8 M. «fe W. GOG; Hazlewoody, 
 Back, 9 M. <fe W. 1 ; Anderson et al v. Chapman et al, 1 Dowl. P. C. 822 ; Mullins \. 
 Scott, 6 Bing, N. C. 423; Lewis v. Holding, 2 M. & G. 875 ; Routledge v. AbLnt 
 et al, 8 A. <fe E. 692; Paddock v. Forrester et al, 2 Dowl. N. S. 125 ; Newton v. 
 Iloljord et al, 2 D. <fe L. 826; Freeman v. Rosher, 18 L. J. Q. B. 105; Damsy. 
 Davis, 5 0. S. 453 ; Evans v. Kingsmill, 4 U. C. Q. B. 132; Taylor v. Carr, lb, 
 149; Bank B. N. A. v. Ainley, 7 U.C. Q.B. 621 ; Sheldon v. Hamilton, M. T. 3 Vic. 
 M.S. R. & II. Dig. " Costs," III. 2, The plaintiff in an action of tort had a verdict 
 for £5, and the judge did not certify for costs. There was a demurrer on the 
 record upon a new assignment previously argued, on which judgment had be^n 
 given for the plaintiff. It was held that the plaintiff was not entitled to the costs 
 of the demurrer : Dunston v. Paterson, 5 C. B. N. S 279 ; see also Keynoldi v. 
 Harris, 3 C. B. N. S. 267. 
 
 Independently of the statute of Anne, questions have arisen as to the right of 
 the parties to costs when plaintiff succeeds on one of several counts In a dei-lara- 
 tion, and the defendant as to the others. "Whenever a plaintiff succeeds on a trial 
 as to any part of his demand, divided into counts, whether the defendant plead 
 one plea to all the counts, or plead to the counts separately, plaintiff is entitled 
 to the general costs of the cause; and defendant, though not formerly entitled 
 to his costs on the counts or issues upon which plaintiff fails: Lloyd v. Day,' 
 Barnes, 149; Butcher v. Green, 2 Doug. 677; Astley v.Young, 2 Burr, 1232; Poitan 
 V. Stamvay, 5 East. 261; is now clearly entitled to a deduction in respect to 
 such counts or issues: Cox v. l^homason, 2 C. <fe .J. 498 ; Knight \. Brown, 9 Binij 
 643. This rule applies as much where there is one plea, for instance, general 
 issue to all the counts jointly, which for this purpose is to be taken distributively, 
 as where distinct issues are joined on distinct pleas pleaded to as many separate 
 counts : Daniel et al v. Barry et al, 4 Q, B. 69 ; Nicholson et al v. Dyson, 1 D, it 
 L. 277 ; Williams et al v. The Great Western R. Co. 1 Dowl. N. S. 16. 
 
 The same principle has been held to apply to a declaration of one count only, 
 but containing several material and traversable allegations, to which the general 
 issue is pleaded, and some only of the matters alleged, are found in plaintiff's 
 favour : Prudhomme v. Fraser, 2 A. & E. 645. So if there be several closes men- 
 tioned as abuttals in one count as trespass, the allegation is devisible, and the 
 defendant is entitled to costs as to those closes, of the breaking of which he was 
 not guilty : Phythian v. White et ai, 1 M. «fe W. 2 1 6 ; Anderson el al v. Chapman et al, 
 6 M. & W. 483. In libel, where defendant pleaded not guilty and a justification, 
 and succeeding on the first plea called no witness as to the second, he was held 
 entitled to his costs in respect of that plea : Empson v. Fairfax et al, 8 A. A E. 
 296. The apportionment of costs as against or between several defendants is 
 regulated by section 317 of th'.o act. 
 
 Plaintiff, 'vrospectively of the present statute and rules of court, can recover 
 costs only u der the statute of Gloucester as a part of his damages, or under the 
 statute of Anne where there are double pleas. If he succeed as to the whole of 
 the causes of action sued upon, or one of them, his only claim is under the statute 
 of Gloucester. If defendant succeed on a plea in bar of the causes of action, 
 plaintiff can clajm costs only under the statute of Anne. To put a case decided 
 as an illustration of these remarks: a declaration for injury to the pluiiititf's 
 reversion contained two counts, to which the defendant pleaded— ^V4<, not guilty; 
 secondly, to the first count, no reversion; thirdly, a justification, to which there 
 was a replication, demurrer and judgment for defendant ; fourthly, the Statute of 
 Limitations to both counts ; KaA fifthly, to the second count, a plea to which there 
 was a new assignment, and to it a plea of not guilty, and a verdict /'as found for 
 the plaintiff on the plea of not guilty as to part of the first count, with contingent 
 
111.] RULE NOT NECESSARY TO PLEAD SEVERAL MATTERS. 145 
 
 Hull' nnt 
 riiiuirt'J- 
 
 111. U) No rule of Court for leave to pay money into 
 Court or to plead several matters shall be necessary where a 
 Judge's Order has been made for the same purpose, (it) 
 19 Vic. c. 43, s. 131. 
 
 (bman'es; and as to the residue of the first and the second count, for the defend- 
 ant, and on the plea of no reversion for the plaintiff as to both counts, and on the 
 fifth ))lea the jury were discharged by consent, and as to the new assisjnment, the 
 verlict was for the defendant: held that the i)laintiff was not entitled to the costs 
 of tlie issues as to the part of the first count on which he had succeeded, for he 
 bad no ri<;ht under the statute of Gloucester, inasmuch as he could not have judg- 
 ment for the damages assessed, and that he had no right under the statute of Anne, 
 since ho had succeeded on all the issues as to that part of the count. But that as 
 to the otiier part of the first count, and the second count, he was entitled under 
 the statute of Anne to the costs of one special plea, including a portion of the 
 (Xpenses of briefs and witnesses, inasmuch as the defendant succeeded on the first 
 issue an to that part of the first count, and on the second count ; and the plaintiff 
 obtained a verdict on the issues raised on two other special pleas: lloicell v. 
 Rndbard, 4 Ex. 309. So where to a declaration in assumpsit the defendant 
 pleaded several pleas upon which issues were joined and also n plea to which the 
 [ilaintitf demurred, and the issues were tried and found for the plaintiff, and after- 
 wards judgment was given for the <lefendant on the demurrer, the court holding 
 the declaration insufficient: held that the plaintiff was not entitled under the 
 statute of Anne to the costs of the issues found for him, as no issue in fact had 
 been found for the defendant also : Partriilge v. Gardner, 4 V.x. 803. The object 
 of the statute of Anne is to punish a defendant for improperly pleading jiloas 
 which he cannot support; but there are other statutes which punisli ajdaintifffor 
 brini;ing a frivolous suit though he succeed: 43 Elizabeth, cap. 6, 21 ; 1 Jac. cap. 
 I'i, s. C; 22 «fe 23 Car. II. cap. 9. 
 
 (j) Taken from Eng. Stat. 15 »& IC Vic. cap. 76, s. 82. 
 
 [k] If ^i judtjO in Chambers refuse leave to plead several matters, the party who 
 
 niaiie tlw; a])plication cin move the court in banc : Johnst'^e v. Kaowles, 1 Dowl. 
 
 X. S. 30, In such a case it would seem to be unnecessary for him in his rnle to 
 
 notice the proceedings previously had before the judge in Chambers; lb. And if 
 
 the juti;^e to whom application is in the first instance made, though granting 
 
 I leave as to ?ome pleas, withhold it as to others, the party dissatisfied may apply 
 
 j to the court to be allowed to file additional pleas. If the proposed additional 
 
 i I'leas be consistent with what the judge in Chambers has alreadj' done, the parties 
 
 (■liould again apply to him. it is very inconvenient for the court in banc to bo called 
 
 liipontosay what pleas shall or shall not be allowed in a case: Smith v. Guld.nmrthy, 
 
 '^Q. B. 72o, pir Denman, C. J. But if the application to the Court be to allow i)ar- 
 
 I ticular pleas disallowed by the judge in chambers, then it would appear that the 
 
 ipiilication should be to rescind the judge's order: Pym v. Gmzccrook et al, 1 Dowl. 
 
 IN. S. 489 ; see also T/ie South Eastern R. Co. v. Sprot, 11 A. A E. 1G7. And, on 
 
 I the contrary, if at all consistent with the judge's order, it would seem unnecessary 
 
 |t« notice the previous proceedings when applying to the full court; Smith v. 
 
 \(i"Uiworth;/, 2 Q, B. 717; Graham v. Fiirber, 2 C. L. Rep. 11 n, 6. The appli- 
 
 j cation to the court would be in the nature of an appeal from the decision of the 
 
 |iwi?e ; see Waddell v. Corbett et al, 2(5 U. C. Q. B. 243. Such and similar nppli- 
 
 jcatiiins should bo made in the course of the term next after the decision of the 
 
 IjiidL'e; Orchard v. iloxa;/, 2 El. & B. 206, affirmed in Collins et al v. Johnson, 16 
 
 1^' 1!. 588 ; see also Bank of Montreal v. Harrison, 19 U. C. C. P. 276; see further 
 
 |Lote If to Gcction i8. The court, before tho C. L. P. Act, has allowed a defeudunt 
 
 10 
 
III 
 
 |,H '' ■■'■ 
 
 146 
 
 Certain 
 picas may 
 be plea<lt;d 
 together 
 witliout 
 leave. 
 
 THE COMMON LAW PEOCEDURE ACT. 
 
 [8. 112. 
 
 lis. (J) The following pleas, or any two or more of them 
 may be pleaded together as of course, without leave of the 
 Court or a Judge, that is to say : a plea denying any contract 
 or debt alleged on the declaration, (m) a plea of tender as to 
 part, a plea of the Statute of Limitations, set-off, (n) discharge 
 of the Defendant under any Bankrupt or Insolvent law, |)/ene 
 administravit, plene administravlt prceter, infancy, coverture, 
 payment, accord and satisfaction, release, not guilty, a denial 
 that the property an injury to which is complained of is the 
 Plaintiff's, leave and license, son assault demesne, and any 
 other pleas which the Judges of the said Superior Courts, or 
 
 to add pleas after a demurrer : Smart et al v. Sandam et al, 3 C. B. 380 ; and in one 
 case, even after a notice of trial hnd countermand, the trial not being thereby 
 delayed : Field v. Sawyer, 5 D. «fe L. 777. 
 
 (I) Taken from Eng. Stat. 15 <fe 16 Yic. cap. 76, s. 84; substantially a re-enact- 
 ment, with amendments, of Eng. Rule 13, T. T. 1 Wm, IV.: Jervis N. R. 46. 
 
 (m) In the practical application of this section, there may be some difficulty 
 experienced. There are contracts consisting of several parts, which cannot be 
 denied without as many distinct pleas. Thus, the contract of the indorser of a 
 promissory note is to pay it, if the maker do not, provided he. the indorser, receive 
 notice of non-payment by the maker. Now the plea of "did not endorse" only 
 r' 9 the fact of indorsement in issue, which is only one part of the contract; see 
 luarston v. Allen, 8 M. <fe W. 494 ; Adams v. Jones, 12 A. & E. 465 ; Hayes v. Caul- 
 field, 6 Q.B. 8 1 ; Wood v. Connop, lb. 292 ; Bromage et al v. Lloyd et al, 1 Ex. 32 ; Bdl 
 V. Lord Ingestre, 1 2 Q. B. 317 ; Lloyd v. Howard, 15 Q, B. 995 ; Palmer v. Richards, 
 16 Jur. 41. If defendant do not expressly deny notice of non-payment, he will be 
 taken to have admitted it. This latter plea is necessary to the denial of the 
 remaining part of the c(^tract, and by '.his means the whole contract is denied 
 within the meaning of the enactment. I'j is apprehended that any number of pleas 
 may be used which, in consequence ot the peculiarity of the contract sued upon, 
 may become necessary for the purpose of denial. It is the peculiarity of the con- 
 tract of the indorser of a promissory note which renders it necessary to use two 
 pleas in order to deny it. The mere denial of the indorsement will admit tiie 
 notice, and the denial of the notice will admit the indorsement. It is very true, 
 if the defendant succeed on either, that it affords an answer to the action ; but the 
 contract is of a two-fold character, and the two pleas do not cover the same ground, 
 but are distinct, applying to two several parts of the contract. Non-assumpsit, \i 
 allowable, might have traversed both ; but the new rules compel a defendant in a 
 case like this to traverse the contract severally by distinct answers. Taking section 
 105 with section 112 of this act, and construing them with the rules, the indorser 
 of a note may deny the indorsement and want of notice without asking permission 
 to do so: Rosse et al v. Cummings, 2 U. C. L. J. 227. In an action by bearer of s 
 promissory note against maker, defendant cannot without leave plead denying tliat 
 plaintiff is the bearer, and also a special plea in confession and avoidance : Every 
 V. Wheeler, 3 U. C. L. J. 1 1. If defendant, without leave, plead several pleas which 
 he has no right to plead, plaintiff may sign judgment: section 113. 
 
 (n) An equitable plea cannot be pleaded as a plea of set-off, and therefore if 
 pleaded with other pleas without a judge's order, entitles plaintiff to sign judg- 
 ment: Watt v. Oeorge, 3 U. C. L. J. 71. 
 
s. 113.] 
 
 PLEADING DOUBLE WITHOUT LEAVE. 
 
 147 
 
 any four of them of whom the Chief Justices of the said 
 Courts shall be two, by any rule or order to be from time to 
 time made in Term or in vacation, order and direct, (nw) 
 19 Vic. c. 43, s. 133. 
 
 113. (o) Except in the cases herein specially provided in other 
 for, (/)) if either party plead several pleas, replications, avow- j.ieas, &c., 
 ries, cognizances or other pleadings (q) without leave of the nu'd without 
 Court or a Judge (r), the opposite party may sign judg- '"'^^''' 
 
 lifficulty 
 nnot be 
 ■ser of a 
 , receive 
 le" only 
 •act: see 
 
 V. Caul- 
 
 32 ;M 
 llichards, 
 
 e will te 
 |al of tbc 
 
 |3 denied 
 
 , of pleas 
 
 led upon, 
 the con- 
 use two 
 imit tlie 
 
 lery true, 
 buttlie 
 ground, 
 
 [umf si', if 
 dant in a 
 
 Ig section 
 indorser 
 irmission 
 f nrcr of » 
 -ing tliat 
 e: Even 
 ks which 
 
 . (nn) Several pleas to distinct parts of the declaration, and which, if taken 
 together, formed but one entire defence, might and still may be pleaded without 
 any leave for that purpose, such as tender to part and never indebted to the resi- 
 dne: Archer v. Gerrurd, 3 M. & W. 63; or a special plea to part, and anotlicr 
 special plea to the residue without any general issue to the whole : Vere v. Golds- 
 borouflh, 1 Bing. N. C. 853. Besides, a defendant is not compelled to plead all the 
 pleas for which he has obtained leave ; he may plead a plea to part under leave to 
 plead a plea to the whole declaration, or he may abandon some of the pleas : 
 Fryer v. Andrews, I Ex. 471. Defendant cannot, without obtaining leave, traverse 
 separately two distinct allegations in the declaration, each plea being an answer 
 to the whole cause of action : McKay v. Barley, 4 U. C. L. J. 88. There is no 
 necessity to obtain leave to plead several pleas when two or more pleas, or no 
 picas except those mentioned in this section, are pleaded to the same part of the 
 declaration or debt or cause of action : Archer v. Gerrard, 3 M. «fe W. 63 ; nor 
 where several defendants sever in pleading, and each pleads only such plea or 
 pleas as he alone might plead without leave: Cazneau v. Mortice et at, 25 L. J. 
 Q.B. 126. 
 
 (o) Taken from Eng. Stat. 15 <fe 16 Vic. cap. 76, s. 86. 
 
 (p) By preceding section 112 or rules to be made thereunder. 
 
 {(]) To a count alleging an agreement by B. to serve A. as a clerk, and not to 
 leave without notice, B. pleaded that whilst he was in A.'s employment, B. with- 
 out any just cause or provocation insulted and abused him, whereupon he gave 
 iiim notice that he should forthwith leave his service. And to this plea A. (with- 
 out obtaining leave to reply double) replied thus — A. takes issue on B.'s plea, 
 &i\d further says that the notice intended in the declaration was a reasonable and 
 a proper notice, but that the notice mentioned in B.'s plea was not a reasonable 
 or a proper notice. B. having signed judgment under the section of the English 
 C. L. P. Act, corresponding with the one here annotated, the court set it aside 
 without costs, but declined to decide whether or not the replication was double 
 or the plea regular : Metiiter v. Rose, 13 C. B. 162. 
 
 (r) If a party who having obtained leave to plead several matters by order of 
 a judge plead contrary to the effect of such order, even though by mistake, the 
 opposite party may move to strike them out of the pleas : UoUiday v. Bohn, 3 M. 
 4 0. 115; Flight -v. Smale, 4 C. B. 766; or according to the decisions of the 
 Exchequer in England, may sign judgment: Bailyy. Baker, 9 M. & W. 769; llllk 
 (t al V. Haymen, 2 Ex. 323 ; Oah'ardi v. Hariner.'s Ex. 239 ; Harvey v. Uamilton, 
 4 Ex, 43 ; Wills v. Robinson, 6 Ex. 302. But a departure from the order which 
 13 not nubstantial or calculated to embarrass will not entitle the opposite party 
 to take either of these proceedings : Wills v. Robinson, 6 Ex. 302 ; Dunmore v. 
 TarUton, 1 C. L. Rep. 19. 
 
'itV;:.?' 
 
 148 
 
 TUB COMMON LAW PROCEDURE ACT. 
 
 [8. 114. 
 
 rrj^ 
 
 i \ ', -w 'I 
 
 'Objeptiong 
 when to be 
 beard. 
 
 ment, (s) but such judgment may be set aside by the Court 
 or a Judge upon an affidavit of merits, and on such terms as 
 to costs and otherwise as they or ho may think fit. (.ss) 19 
 Vic. c. 43, s. 135. 
 
 114. (/) All objections to the pleading of several pleas, 
 replications or subsequent pleadings, or several avowries or 
 cognizances, on the ground that they are founded on the 
 same ground of answer or defence, shall be heard upon the 
 rule t / Fhow cause or the summons to plead several mat- 
 ters, y) ( o. c. 43, s. 132. 
 
 (s) In (iTi netion on a promissory note defendant witlionl leave pleaded, 1. non 
 fecit; 2. denial of pv Liitment ; ;! .-i special pica admitting the note, bnt avoid- 
 ing it by showiniij a \Vi;tit of insidfii'' n. Plaintiff signed judgment. Jield that 
 as the first and third pluas w^. . iiiiv-.i latent i\nd set up two distinct defences to 
 the same cause of action, the defeiidiK't il.o ,i:l not have pleaded them without 
 leave, and tliat judgment was rightly signed by plaintiff: Le Claire et al v. /W- 
 homme, 1 U.C. L.J. 229 ; see further Wistlakc v. Abbott, 4 U.C. L.J. 46. So where 
 to a declaration for a ninlicious arrest containing only one count defendant with- 
 out leave pleaded — 1. not guilty ; 2. that he did not maliciously cause the plain- 
 tiff to be ai-rested, Ac. ; 3. that he, defendant, had reason to believe that plaintiff 
 had parted with his property, jfrc. Plaintiff thereupon signed judgment. Defen- 
 dant obtained a summons to set oside the judgment with costs, on the ground 
 that " it had been signed after pleas had been filed and served, and was conse- 
 quentlj' irregular," but held that " the pleas should not have been pleaded with- 
 out leave, and consequently that the judgment was rightly signed : Wilkin» v. 
 B'acJdock, 2 U. C. L. J. 2S2. So where to a decloration by plaintiff as bearer 
 against defendant as maker of a promissory note, defendant without leave pleaded 
 — L plaintiff not bearer of the note ; 2. want of consideration ; 3. fraud; npd the 
 plaintiff thereupon signed judgment; held regular: Jicery y. Wheeler, 8 U.C. 
 L. J. 11. 
 
 (.t«) The usual terms are " on payment of costs :" McKay v. Barley, 4 U. C. L.J. 
 88. But the statute says, " on such terms as to costs and otherwise." An order 
 was made in one case relieving defendant on the merits and setting aside the judg- 
 ment on the conditions precedent, that defendant should pay £50 into court (that 
 sum being sufficient to cover the amount for which judgment was signed) to abide 
 the event of the suit, and upon payment of all costs and signing the ju'Jgment 
 and subsequent proceedings thereon and the costs of the application, and further 
 as the cause was in the " inferior jurisdiction," upon the terms of defendant allow- 
 ing plaintiff to go to trial at the then next sitting of the county court, taking one 
 day's notice of trial : £very v. Wheeler, 3 U. C L. J. 11. 
 
 (0 Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 83. 
 
 (m) From the concluding word.s of this section the inference might be tbot no 
 application involving objections to the pleading of several pleas, <fec., can be 
 entertained in banc by way of appeal from the judge's order allowing several 
 pleas, but the courts in England have given a different construction to tha sec- 
 tion : Griffith v. Selby, 9 Ex. 393. If either party consent to the pleading of several 
 matters, he will not be permitted afterwards to move the court to set aside any 
 of the pleadings pleaded with his consent : Howen v. Carr, 6 Dowl, P. C. 305. 
 In all cases in which a judge's order to plead several matters is rendered ueces- 
 
 
s. 115.] 
 
 NEW ASSIGNMENTS. 
 
 149 
 
 115. (f) One new assignment (w) only shall be pleaded One now 
 to any number of pleas to the same cause of action, and such on^j^ToTevo- 
 
 sary, t'le originnl oriler or a copy tliereof must be either attached to the nisi prius 
 record or demurrer book or be copied in the margin thereof: Uule M. T. 1863, 23 
 U.l'. Q.U. US. In case of noncompliance with this rule, the clerks or deputy clerks 
 of the crown are not to pass the record, nor shall the demurrer be argued : lb. 
 
 [v) Taken from Eng. Stat. 15 A 16 "Vic. cap. 76, s. 87 ; founded ilpon the first 
 report of the Common Law Commissioners, section 45. The object of this sec- 
 tion is to prevent^ unnecessary prolixity, whereby in some oases to several pleas 
 there have been as many distinct new assignments as pleas, and before issue as 
 runny replications as pleas both to the declaration and new assignment, so that 
 the same pleading in the same form of words has been repeated over and over 
 again without reason or meaning. 
 
 (w) The necessity for a new assignment generally arises in two ways ; first, 
 wliere the plaintilF complains of one of several trespasses, in a form so general 
 that it is api)licable to any of them, and a trespass in respect of which the action 
 is not brought is, either by mistake or design, justified by the defendant ; secondly, 
 where the defendant pleads justification of the trespass complained of, but the 
 lihiintitf maintains that there has been an excess bej'ond what the circumstances 
 justify, of which several examples may be found in subsequent notes to this section. 
 One object of a new assignment is to make certain what the plea ha rendered 
 uncertain ; as where the defendant mistakes the nature of plaintiff's demand, and 
 pleads a good answer to something which is not the cause of action sued upon : 
 James v. Lingham et al, 6 Bing. H. C. 557, per Tindal, C. J. ; see also Went v. 
 Mbbi et al, 4 C. B. 172. Though a declaration in debt be very general, and 
 though the plea bo equally genenal, if there never could be any doubt between 
 tlie parties that the action is brought for the balance of an account, there will be 
 no necessity for a new assignment: James v. Lingham et al, 6 Bing. N. C. 553. 
 Where plaintiff declared in debt for £100 due for work and labour and on 
 an account stated, to which defendant pleaded payment of £100 in satisfaction 
 of the' causes of action mentioned in the declaration, and plaintiff proved that 
 1% 17s. lid, was due to him for the balance of his account, after giving credit 
 for the £100 he had received, and that defendant had admitted the correctness 
 of Ilia account : held, that plaintiff was entitled to a verdict without a new assign- 
 ment: lb.; see also Kenmngham v. Alison, 2 Dowl. N. S. 658. Where the plain- 
 tiff's demand is defined by a bill of particulars, and it appears that he claims a 
 balance only after giving credit for payments whenever made, the plea of payment 
 applies as to that balance: Eastwick v. Harman, 8 Dowl. P. C. 401, per Alder- 
 son, B. ; which for the purposes of pleading, is taken to be the particular sum for 
 whidi the action is brought: Dite v. Hawker, 1 1). «fe L. 189. Thus, plaintifl' de- 
 clared iu indebitatus assumpsit for work and labor done and on an account stated for 
 £16 3», 10(/. : plea, except as to £2 3». \Qd. (paid into court), that the defendant, 
 after tiie accruing of the debt, and before the commencement of the suit, paid to 
 the plaintiff' and the plaintiff accepted money to a largo amount in full satisfaction 
 of tlie debt in the declaration mentioned. Replication, denying the payment and 
 acceptance as alleged. It appeared at the trial that the original sum due was 
 i'30 'is, \()d., of which £14 had been paid, leaving the balance claimed in the action 
 of £16 3». 10</. Held, that the issue raised upon the pleadings was, whether the 
 money paid was in satisfaction of the debt in the declaration mentioned, and that 
 defendant having failed to show payment beyond £14, the plaintiff was entitled 
 too verdict for £14, the balance, less the money paid into court: lb.; see also 
 Freeman v. Crafts, 6 Dowl. P. C. 689. But where the declaration is general, and 
 the plea narrows it, stating the demand to be in respect of a claim which it shows 
 to have been satisfied, and plaintiff contends that the plea is wrong ia so narrow- 
 
rr- 
 
 
 m0- 
 
 {\r 
 
 hi ?i 
 
 UH ' 
 
 •> Si 
 
 150 
 
 ral picas to 
 tliu saiiiM 
 (•au«i' of 
 action. 
 
 THE COMMON LAW PEOOEDURr, ACT. 
 
 [S. 115. 
 
 new assignment shall bo consistent with and confined by tho 
 particulars delivered in the action, if any, {x) and shall state 
 that the Plaintiff proceeds for causes of action different from 
 
 ing the declaration, lie should new-assign : Rogers v. Cuatance, 1 Q. B. 11. Thus, 
 debt ill the common form for work and labor. Particulars of demand for contract 
 work and extra work. Plea, that plaintiff and defendant by consent gave up a 
 contract originally made between them for work, plaintiff agreeing to accept 
 certain work which had been done under the contract at a reduced price ; that by 
 virtue of such agreement defendant became indebted to plaintiff in the amount 
 mentioned in the declaration, and tliat defendant, in pursuance of that agreement, 
 paid plaintiff and he accepted the said amount. Replication traversing the pay- 
 ment and acceptance. IJeld, that on these pleadings the plaintiff could not give 
 evidence of any demand not a subject of the second agreement, and that to enable 
 himself to recover for extra work, he ought to have new-assigned : lb. In such a 
 case the particulars of demand, even if they had been confined to extra work, 
 could not aid the plea : lb. It may be mentioned that whenever plaintiff goes for 
 a balance of an account, whether tliere be a plea of payment or credit be gi^cn 
 to defendant for a part in the declaration, plaintiff must under the general issue 
 prove tho whole account : Frice v. Hees, 1 1 M. A W. 676. 
 
 (x) A defendant by calling for particulars before pleading may be so informed 
 as to make it impossible for nim to mistake the declaration, and thus prevent in a 
 great measure the necessity for a new assignment. The office of a new assignment 
 is practically to explain that which is left ambiguous on the face of the declaration 
 owing to its generality : West\. Nibbsetal, iC.B.lSi, per WilWams, J. Particulars 'I 
 of demand wliere allowable have the same effect, thougli they form no part of the 
 record : Dempster el al v. Purnell, 1 Dowl. N.S. 168. The object of a bill of particu- 
 lars is to control the generality of the declaration ; but, as remarked by a learned 
 judge, in nine cases out of ten they are applied for to entrap tho plaintiff within 
 certain limits, and tlio court should be careful not to allow plaintiffs to be tied 
 up too tigiitly by such means : Rennie et al v. Beresford et al, 3 D. & L. 468, fit 
 Alderson, B. There is a distinction between the explanation of a charge made in 
 a bill of particulars and the charge itself. For ins.ance, if in a bill by a surveyor 
 for services performed by him, matters such as stationery, travelling expenses, 
 (fee, were of themselves and by themselves the distinct subject of a charge; no 
 doubt there ought to be particulars given of each, but usually that is not so, nor 
 is it necessary that it should be so in a surveyor's bill, as such matter is mere 
 explanation of the charge. Id such an action particulars claiming certain aggre- 
 gate sums in respect of the survey stated, number of miles, travelling expenses, 
 printers' accounts, stationery accounts, Ac, are sufficient particulars without 
 specifying the number of fields surveyed, the time employed, the number of per- 
 sons engaged, «fcc. : Ih. ; see also Wiggins v. Ede et al, 15 M. <fe W. 76 ; Irving v. 
 Baker, 15 L. J. Q. B. 322; Boulton v. Pritchard, AT). & L. 117. But in an action 
 on the indebitatus counts by a broker to recover the amount of shares purciiased 
 by him for defendant, and commission on the same, the court obliged him to 
 furnish the dates of the purchases within the composs of a few days and tiie names 
 of the parties from whom he purchased : Berkley v. De Vere, 4 D. <fe L. 97. The 
 chief object of particulars is to give substantial information to the defendant of 
 plaintift''s demand, and in order to limit the proof of the latter to the causes of 
 action in the declaration mentioned. The cases have gone great lengths in sup- 
 porting particulars where they have really varied from the evidence given by 
 plaintiff when the defendants could not under the circumstances have been misled. 
 It is not for the court to look to the fact of the party having been misled, but 
 whether under the ordinary circumstances in which a man would view the case 
 there might have been an actual misleading. That depends upon the wisdom of 
 
 ■f''- J; 
 
 Hi-' 
 
s. 115.] 
 
 FORM OP NEW ASSIGNMENTS. 
 
 151 
 
 all those which the plea professes to justify, or for an excess 
 over and above what all the defences set up in such pleas 
 justify, or for both, (y) 19 Vio. c. 43, s. 136. 
 
 nggre- 
 
 liven by 
 
 tlic part}', and there is no criterion unless the court adopt this — the whole cir- 
 cumstnnces being looked at, woujd a reasonable man be deceived by the form of 
 the pniticulnrB ? The true criterion therefore is not wliether the defendant has 
 been actually misled, but whether the particulars are of such a nature that a 
 reasonable person would be misled by them : Law v. Thompson et al, 4 D. A L. 54. 
 In pursuance of this principle it has been frequently decided that a mistake in a 
 bill of particulars not calculated to deceive or mislead the party to whom the bill 
 is given, will not be held to be material, and will not be allowed as a valid objec- 
 tion at the trial : Barney v. Simpson, 6 0. S. 96, per Sherwood, J, Thus an error 
 in the date of a promissory note as given in a bill of particulars has been in one 
 case held immaterial : lb. But in an action for work and labor, the particulars 
 of the plaintiflf's demand stotcd the action to be brought " to recover from the 
 defendants the sum of £450 claimed by the plaintiff for his services as clerk or 
 mannger to the defendants, from October, 1837, to October. 1839." An order 
 was made for further and better particulars, when the plaintiff delivered the snme 
 with the addition of the words " after the rate of £200 per annum." Held that 
 plaintiff could not give evidence of a claim for commission on the amount of business 
 (lone by defendants, through his introduction : Law v. Thompson et al, 4 D. <fe L. 54. 
 So where plaintiff in his declaration and particulars claimed damages for certain 
 articles deposited with the defendant, which had not been returned, and of which 
 due care had not been taken. Under the former description in hie particulars 
 he set out certain articles of glass, which however turned out to have been 
 destroyed. Held that under such particulars he was not entitled to recover 
 damages in respect of those articles: Mossy. Smith, 8 Dowl. P. C. 537. But 
 under a bill of particulars for work and labour, the court allowed plaintifl' to give 
 ill evidence an acknowledgment of u specific balance due for work and labour : 
 Drnmmond v. Bradley, Dra. Rep. 254. The usefulness of particulars as a preven- 
 tative of new assignments will be apparent in actions of trespass particularly. 
 In trespass it has been held that defendant may obtain particulars of jilniiitifrs 
 cause of action before declaration : Nevills v. iJervey, T. T. 3 & 4 Vic. MS. R. A 
 II. Dig. " Particulars of Demand," 8. The court will always require some special 
 ground for an application for particulars where none have been given by plaintiff; 
 utiierwise in every case of trespass it would be a step in the cause to apply for 
 particulars on the affidavit of defendant, who would never know what the griev- 
 ances comploined of were. There ought to be some special statement of the 
 property, and the court should see some reasons for granting a rule : Jlorlock v. 
 hd'mrd, 2 Dowl. N. S. 277, per Parke, B. The same rule has been applied to 
 special actions for breach of contract : Pylie v. Stephen, 8 Dowl. P. C. 771. Before 
 this act it has been held that a court of common law cannot compel a plaintiff to 
 give i)articulars of matters which he does not claim in his declaration. Thus in 
 an action for the value of goods supplied to a third party, on the false represent- 
 ation of the defendant, the court would not compel the plaintiff to give a parti- 
 cular of goods supplied to, and bills of exchange, «tc., given by sucii third party, 
 6uch goods and bills not being claimed by the terms of the declaration : LiM:k et 
 al V. Ilandley, 4 Ex. 486, 
 
 {,«) A new assignment is in the nature of a new declaration. In effect tl;e 
 plaintiff says, " I do not dispute in this action the truth of your plea ; my decla- 
 ration is for a cause of action differing from that which you have answered," or 
 |>e may say, " I dispute the truth of your plea, but my declaration is also for 
 another cause of action differing from that which you have attempted to answer:" 
 Grove V. Witfiers, 4 Ex. 881, per Parke, B. To do the latter is to reply and new 
 

 f .^■n hr 
 
 152 THE C05IM0N LAW PROCEDURE ACT. [s. 115. 
 
 rsKrmneiir ^'®* ^^) ^° P'^"^ which has already been pleaded (a) to 
 
 ft9sin;n nt tho samo time. A trespass justified may bo so far divisible that pkintK 
 may reply as to part and new assign as to the residue. In trespass for brfnkiw 
 and entering plaintiffs dwelling house, and staying and continuing thcrra, 
 molting a noise and disturbance for a long time, to wit, for four days then ne« 
 following, and seizing his goods, &c. Plea as to tho brealiing and entering tlit 
 dwelling house, and staying and continuing therein as in tho declaration ma 
 tioned, a justification by the leave ond license of the plaintiff to talte posseesim 
 of certain goods. Replication traversing the leave and license and new assi^nis; 
 that tlie plaintiff issued his writ, die, not only for the breaking and enteiing tke 
 dwelling houso and staying and continuing therein as in tlio plea mentioned, bit 
 also for that the defendants, without the license of the plaintiff, stayed and cot. 
 tinned in tlie dwelling house, maiiing such noiso and disturbance, «fec., for other 
 and different purposes than those in the plea mentioned, and for a much lonp 
 time, to wit, three daj's longer than was necessary for taking possession of the 
 goods, Ac. IJeld that the replicotion and new assignment were not bad for 
 duplicity, time being in the case of a continuing trespass eqnally divisible for 
 this purpose as space: Loweth v. Smith el al, 12 M. tfe W. 582; also Worlhi 
 Ternngton et al, 13 M, «fe W. 781. These cases ore exactly like the case of a tres- 
 pass in various parts of a close, where the defendant justifies under a right of 
 way. and plaintiff may traverse the existence of such right ond new assign 
 trespasses in another part of the close : lb. 789, per Pnrke, B. The neccssitj 
 for a new assignment will frequently depend on tho distributive character of 
 defendant's plea, as in the case of Adams v. Andrews, 20 L. J. Q. B. 33 ; see al» 
 Olovcr V. Dixon et al, 9 Ex. 158. To a declaration in trespass for breaking, 4o„ 
 a shop, rooms, and apartments of the plaintiff, the defendant pleaded that lie wls 
 sheriff, and as sheriff liad a writ oi fi.fa. against one LI., and that by the leave of 
 the plaintiff the outer door being open he entered the same shop in the declara- 
 tion mentioned (the samo shop, rooms, and apartments in the declaration men- 
 tioned being one and the same shop, and not different rooms and opartmentsj to 
 inquire, Ac. The plaintiff replied de injuria, and new assigned that the defendant 
 broke, &c., "two other rooms and apartments, to wit, a room called," Ac, being 
 other rooms in the declaration mentioned, besides and different from and otiier 
 than the said shop in the said plea mentioned. Held new assignment good: 
 JIarvey v. Lankester, 7 D. <fe L. 32 ; see further Meriton v. Coombea et al, 19 L J. 
 C.P. 336. In actions of trespass to lond, the locus in quo should bo designated by 
 abuttals or other descriptions, as it was at the time of the trespass and not nt the 
 time of the declaration. Therefore where in an action by a reversioner the 
 declaration described the locus in quo as "abutting on the south and ea.stona 
 close in the occupation and possession of the defendants," and tho defendants, an 
 English railway company, pleaded that they took part of said close abutting on 
 the south on the fence of their railway under the provisions of tho Eailwaj* Act 
 8 «fe 9 Vic. cap. 20, ss. 32, 33, which was the trespass complained of, and it 
 appeared at the trial that at the time the trespass was committed the close in 
 question abutted on the fence of the railway, but that afterwards the defendant! 
 took possession of and purchased under the provisions of the above act a small 
 part of it adjoining the railway, so that the plaintiff's description of it was correct 
 at the time of the declaration but not at the time of the trespass. Held that 
 plaintiff could not recover for want of a new assignment : Humfrey v. The londm 
 and N. W. It. Co., 7 Ex. 825. The effect of this section will be to simplify the 
 form and abridge the length of new assignments. 
 
 {z) Taken from Eng. Stat. 15 ife 16 Vic. cap. 76, s. 88. 
 report of tho Common Law Commissioners, section 45, 
 
 Founded npon the first 
 
 (a) This is in accordance with the principles of the preceding section 115- 
 There it has been enacted that plaintiff instead of new assigning separately to 
 
8.117] 
 
 mOCEEDINaS WHERK AMENDMENT ALLOWED. 
 
 153 
 
 the rlecluration shall bo picadod to such now assignment, 
 escppt a plea in denial (6), unless by leave of a Court or 
 Judge (<•), and such leave shall be granted only upon satis- 
 factory proof (rf) that the repetition of such plea is essential 
 to a trial of the merits. 19 Vic. c. 43, s. 137. 
 
 117t (e) Where an amendment of any pleadin-' is allow- Time for 
 
 , ,, . 1 1 1 1 11 1 I'loailiUB to 
 
 cd (/) no new notice to plead thereto shall be neces- uuamuudea 
 
 ench of severnl plena, shall be allowed only one new assignment, which must state 
 gciiernlly that plaintiff proceeds for causes of action different from or beyond those 
 justified. Here it is enacted that defendant shall not without leave plead to the 
 new nssij^nment pleas pleaded to the declaration. The consequence of these 
 timctments will bo tiiat " if a defendant pleads one defence only at first and plain- 
 tiff new assigns, the defendant may then plead his next defence, and so on, putting 
 ench defence once and once only on the record ; but if the defendant plead all his 
 defences in the first instance, which is the usual course, the plaintiff' will now 
 assign once for all, and the defendant will of necessity be driven to deny the 
 eanses of action newly assigned, or l)ay money into court, or suffer judgment by 
 default:" Common Law Commissioners. 
 
 (ft) Pleas in bar are divided into two classes — pleas by way of traverse and 
 plena by way of confession and avoidance. Traverse is the more proper and 
 ancient terra. In the modern language of pleading, however, deny is often sub- 
 stituted for it; and "pleas in denial" is a term used instead of "pleas by way of 
 
 traverse." 
 
 (f) Relative powers : see note w to section 48, 
 
 (i) i. e. It is presumed by affidavit. 
 
 [e) Ta, en from Eng. C. L. P. Act, 1852, section 90. 
 
 (/) The application for amendment may be either at the instance of the party 
 wliose pleading is in fault or at the instance of his opponent, who makes objec- 
 tion. Tliis section contemplates amendments before entry of the record for trial. 
 Amendment's nt the trial may be made under section 222 of this act. As to 
 omendinent after issue joined, see Warner v. Blaeklock, 10 Jur. 716. Except 
 nnder very special circumstances, a declaration may be amended at any time: 
 Trkkel v. Jarman, Finl. C. L. P. A. 196. It has been considered where a declara- 
 tion was ordered to be amended in the names of one of the parties, that an amend- 
 ment of tlie original filed without filing amended copy was sufficient : IJart et al 
 V. Boyle, 6 0. S. 168. With respect to the terms of the amendment it as'a general 
 rule is only just that the party whose pleading is in fault should pay the costs 
 really occasioned by the correction of such fault. Though this bo the general 
 rule, there may be exceptions dependent upon the circumstances of particular 
 cnses. The judge to whom application is made is in this respect clothed with 
 ample authority. He may either allow an amendment without costs upon pay- 
 ment of a certain fixed sum as costs, or upon payment of costs to be taxed by the 
 ranster. The court will not reverse his exercise of discretion though differing 
 from him on the merits of the particular case : Tomlinson v. Bollard, 4 Q. B. 642. 
 The application to amend should be in the first instance made to a judge in cfaam- 
 bera. This is the most convenient and least expensive mode. "Where a defendant 
 applied to the court in the first instance, in a vexations and expensive manner 
 and for an amendment that might have been obtained at chambers, the court 
 ordered his rule to be discharged with costs unless he would consent to pay the 
 
154 
 
 THE COMMON LAW PROOEUURE ACT. 
 
 [8. 117. 
 
 1 
 
 •1' 
 
 I 
 
 V 
 
 nicii-iiiig, gory («/), but tho opposite party shull bo bound to plead to the 
 auiouded pleading withiu tho timo spccilied in tliu ori^iimil 
 notice to plead (/t), or within two duys after anioiiiliiieiit, 
 whichever may last expire (*'), unless otherwise ordered by 
 the Court or a Judge (J); and in case tho pleading amended 
 
 cost8 of tho nmenJincnt: Duke of Brumwick v. Sloman, 6 C, B. 218. Tlioiic;h a 
 pnrty obtain a rule or order to amend Iio may decline to avail iiiniseif of it. And 
 will not in such n case bo bound to pay tlie costs of obtaining leavo to Hiiiend; 
 Uroicn V. Millington, 22 L. J. Ex. 1^8; Field v. Sawyer, C. B. 71. After a 
 general demurrer to a declaration and leave to plead on the usual ternia, tiie 
 amount of the costs must depend upon the course the defendant elects to a(i(i|itaj 
 to demurring or pleading over to the amended declaration ; Metcalfe v. Booth, 18 
 L. J. Q. B. 247. A fatal variance having in the course of a cause been discovorwl 
 between tho declaration and the evidence, the plaintiff applied to the jiulj,'e to 
 amend the declaration, and the following order was mode : " Upon hearing counsel 
 and by consent it is ordered that the record bo withdrawn, ond that the pliiintitf 
 do have leave to amend the n cord :" Held that although tho order wns nilLnt m 
 to costs, the plaintiff was liable to pay the losts of the day : Skmner v. The Lomlon, 
 Brighton »j' South ( 'oast H. Co. 4 Ex. 885 ; seo also Jackson v. Carrington, 2 C. k K. 
 750. Where a plaintiff after notice of atrial (on a« issue of not guilty), and sliortly 
 before trial, had leave to amend on payment of costs, and the declaration as 
 amended was re-delivered according to the English practice, and a demurriT was 
 then served, and afterwards costs of the amendment had been taxed, and the mas- 
 ter allowed all the costs of preparing for trial, which included almost all the costs 
 of the cause; and the plaintiff had obtained another order to amend on payment 
 of costs upon both amendments, the court allowed the plaintiff to amend on paying 
 tho costs of till' latter, and paying into court the costs of the former; reservini,' 
 the (piestion of review of taxation until it was seen whether, on the pleadings to 
 tho declari'tion as re-amended, the costs of preparing for trial would be thrown 
 awaj'; and if they were not — sembh, that tliere would bo a review of taxation, 
 and that thej' would not be allowed as costs of the first amendment: Alleson v. 
 The Midland R. Co. Finl. C. L. P. A. p. 197. 
 
 {g) Original notide given under sections 91 and 92 of this act. 
 
 {h) i. e. Eitrht days from the service of the original notice to plead, itc. It has 
 been held where a plaintiff" took a summons to amend, that defendant had a rigiit 
 to presume that plaintiff would follow it up, and that after its return it operated 
 as a stay of proceedings for one day at least. Where the defendant's time for 
 pleading was out on the day when tho summons was returnable, a judgment 
 signed for want of a plea on the morning of the next day was held irregular: 
 Hodgson v. Caley, 8 Dowl. P. C. 318. 
 
 (t) The meaning is, that if the timo for pleading pursuant to the original notice 
 has expired before order for amendment, or if the time though not expired be 
 within one day of expiring, in either case the party bound to plead shall Imve 
 two days after amendment, the two days in either of these cases being the time 
 " last to expire." The time allowed under the old practice in such cases may be 
 ascertained upon reference to Fuller v. Hall, H. T. 5 Vic. M.S. R. ife U. Dig. 
 " Practice," I. 16; Commercial Bank v. Boulton, 1 Cham. R. 15. 
 
 {j) The time to be allowed by tl judge may be less or more than that pres- 
 cribed by this section. The power of the judge in such a case is one inherent in 
 the jurisdiction of the courts. 
 
 If a defendant obtains further time to plead upon terms of pleading issuably, RM 
 
g 118.] DILATORY PLEAS. 155 
 
 lind been plsadod to before such amendment, and is not 
 plcaJfd to (fe mvo within two days after amendment, or 
 with'" ^uch other time as tlie Court or a Jud^e allows, the 
 plei irij^inally pleaded thereto shall, if applicable, stand 
 
 and bo considered as pleaded in answer to the amended plead- 
 inp (A). lU Vic. c. 48 B. 139. 
 
 DILATOKY PLEAS, 
 
 ll!^. (0 If a Defendant pleads any dilatory plea, being niintwy 
 matter in law and not of fact, (m) the Plaintiff may set down fnli'm Ii'i'l- " 
 such pica fi)r argument on the first paper day thereafter on [u'va'tttimr 
 which the Court meets, or on any other day in Term, giving 
 two days' notice thereof to the Defendant or his Attorney ; (m) 
 nnd if the I'laintiff fails so to set down the same for argu- 
 ment, he may apply to any Judge of the Court to hear and 
 determine the issue joined thereon, in like manner as the 
 
 [ilftint "wnrtlf" ami before plea obtains leave to nrtiond his (leclnration, nnd do 
 
 nineni ^ ninterially to niter it, tlio record is thereby altered nnd defendnnt 
 
 frml III-..- .lis obligation to i)lend issunbly ; Ilntt et al v. GUcii, 11 JI. tt AV 7.'t» ; 
 Ikrhrv, aicwlow, 6 Dowl. P. C. 1S4; Woodmnn v. Coble, 6 Dowl. V. V. aVl ; 
 CIMrn V. Maumrinrf, 8 Dowl. P. C. 12i»; Vlinpman v. Gihi*, 1 D. <t L. 389. 
 Before tiiis net it was held tbnt if plnintitf after plea plended wns nllowed to 
 nnicnd, defeiidnnt was not entitled to plead ih novo unless lenve wns <iiven him 
 HI to do by the order allowing the amendment, or unless the nnture of t lie nmend- 
 iiu'iit rendered pleading rfe vovo essential : Collins v. Aaron, 5 Scott, 50.5 ; Smith 
 V. Jlenrue, 1 1). & L. 9'.)2. ^Vhere plaintiff applied to nniend his deelnrntion, nnd 
 •lie defendant at the some time ajjplied for one month's further time to plead, 
 wliic'h lie obtained by judge's order, the month was held to run from the time 
 ffliun the declaration was omended : Davies v. Stanley, 8 Dowl. P. C. 4;j;i. 
 
 (k) Tiiis is perfectly in accordance with the ohl prnctico : see Flar/^q v. Borthy, 
 2 Dowl. P. C. 1U7. But there is nn obvious distinction in principle between the 
 oa-se of a demurri.'" nnd a plea; the former cannot stand with the amended decla- 
 lation, though the hitter may : Smith v. Ilcarn, 12 M. & W. 718. per Alderson, B. 
 Ill tlie ease of a plea after the expiration of the two daj's without a furtliei' plen, 
 plaiiititf may join issue to the plen filed, treating it ns pleaded to the amended 
 deciaration. Where a declaration had been amended upon npplication of defen- 
 iliint uiuier section 119, nnd plaintiff immediately nfterwards signed judgment ns 
 fur want of n plen, the judgment being contrary to the ennctment here nnnotnted, 
 and for other reasons not necessary to be hero mentioned, wns set nside without 
 custs; Moberly v. Baincs, 2 U. C. L! J. 212. 
 
 (/) This is taken from our old King's Bench Act 2 Geo. IV. cap. 1, s. 37. 
 
 (m) A general demurrer wns held not to be a dilatory plea within the meaning 
 of the statute : Charles v. Uopkirk, M.S. M. T. 4 Vic. Cam. Rules, 95. 
 
 («) It is presumed that plaintiff would have, ns in the cnse of demurrer or 
 special case, to furnish to the clerk of the court three books for the use of the 
 
 judges. 
 
■BlW^^^Wnf^ 
 
 It A 
 
 .._.^.j 
 
 156 THE COMMON LAW PROCEDURE ACT. [S. 119, 
 
 same might be done in open Court ; (o) and in case the 
 Judge gives judgment for the Plaintiff, he shall direct the 
 plea to be taken off the file, with costs, to be taxed by the 
 proper officer j {p) and the Defendant shall, within four dava 
 from the date of the orde , plead an issuable plea, and rejoin 
 gratis, and go to trisil at such time as ho would have been 
 bound to go to trial in cnse he had pleaded such issuable plea 
 in the first instance, (j) 2 Geo. IV. c. 1, s. 37. 
 
 110. (r) The Court or a Judge (s) may order any plead- 
 ing (^) so framed (u) as to prejudice, embarrass, or delay the 
 emiud. f'tir trial of the action, (y) lo be struck out, or may 
 
 Unfair 
 pleadings 
 may be 
 strac'k out 
 orame 
 
 (o) An application to a judge in vacation is probably here iitcnded, though 
 not 80 expressed. 
 
 (p) Where a judge in chambers granted an order to take a general demurrer 
 off the file as being n dihitory plea, the court set aside the order : Charles v. Bop- 
 kirk, M.S. M. T. 4 Vic. Cam. Rules 95. 
 
 {q'. The next section (s. 119) empowers the court or a judge to order any plead- 
 ing so framed as " to i rejudice, embarrass, or delay the fair trial of the cause, to 
 be struck out;" and it is more than likely that it in pr.iciice will supersede the 
 section hero annotated. 
 
 (r) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 52. Founded upon the first 
 report of the Common La^v Commissioners, section 37. Qn. Does this section 
 apply to proceedings on writs of mandamus ? liegina v. The Sadlers' Co. 22 L. J. 
 Q. B. 454, per Coleridge, J. 
 
 («) Court or a judge. Relative powers : see note w to section 48. 
 
 {t) Applies to all ordinary pleadings, such as declaration, plea, repliCiition, 
 rejoinder, &c. 
 
 (m) The question is not whether the pleading was intended to prejudice, ic„ 
 but whether in fact it bo so framed. 
 
 {v) The chief consideration is the fair and speedy trial : Regina \.The Sadkru'Co. 
 22 Ij, J. Q.B. 454, per Coleridge, J. Any pleading so framed as to prejudice, embar- 
 rass, or delay either party in the attainment of this end is within the nieaningof 
 the act. The judges have always set their faces against sham pleas. Brd plead 
 ing for delay has been treated as a contempt of court, and the fines arising from 
 it were once a source of revenue to tlie crown : Com. Dig. " I'rjorogative," D, S2; 
 In Fierce v. Bla/ce, 8alk. 515, the attorney was fined ; and in Blewitt v. Marsden, 
 10 Erst, 237, and Bariley v Godslake, 2 B. & Al. 199, the attorney was ordered to 
 pay costs. A pleading irresistibly false on the face of it may be treated as« 
 nullity: Vereet al v. Carden, 5 Bing. 413 ; BleioiU v. Maraden, lO East, 237; Bai- 
 manno v. Thompson, 8 Dowl. P. C. 76. But if in doubt as to its falsity aijplication 
 should be made to set aside plea, and if left in doubt the court will not set it 
 aside: Smith et al v. Bachvell, 4. Bing. 512; Richley v. Pioone, 1 B. it C. 286; 
 Merington v. Bcknt, 2 B. A C. 81 ; Bell v. Alexander, 6 M. & S. 133 ; La Forest 
 et al V. Langan, 4 Dowl. P, C. 642 ; Shadwell v. Birthoud, 5 B. & Al. 7S0 ; Bodn 
 V. Johnson, and Corbctt v. Powell, lb. 751 a; Smith v. Uardi/, 8 Bing. 4;!5; 
 Bartleij v. Godslake, 2 B. .fc Al. 199; Mley v. Walls, 1 Dowl. P. C. 648; Mt^. 
 Bush, 4 Ex. 490; Louyhran v. Hill, 6 Ir. C. L. R. 385 ; Leathly v. Carey, 8 Ir, C. 
 L. R, App. i ; Armstrong v. Evatis, lb. App. xxvii ; Gordon v. Hassard, 9 Ir. C. 
 
 
119.] 
 
 EMBARRASSINQ PIEADINOS. 
 
 157 
 
 L R App. xxi; Slokes v. Hartnett, 10 Ir. C. L. R. App. xx; Banks v. Jordan, 
 7 Ir. Jur. N. S. 28; O'Leary v. Hopper, lb. 29; O'liricn v. Tapgart, lb. 29. 
 So if plw* t)e frivolous : Bradbury v. JSmans, 6 M. & W. 596 ; Knowles v. JSwr- 
 ttart/, 10 A. & E. 19. UnlesB plea clearly frivolous or false it will not be set aside 
 on motion: Horner v. Keppel, lb. 17 ; Uomper et al v. Jones et al, 4 Dowl. P. C. 
 691; O'Donnell v. Reilly, 11 Ir. C. L. R. 329; Archer v. McCaldin, 6 Ir. Jur. 
 N. S. 34 ; Balmanno v. Thompson, 8 Dowl. P. C. 76 ; Banks et al v. The Metro- 
 mlita'i R Co. '6 Weekly Notes, 31. The words "prejudice, embarrass, or delay," 
 are used disjunctively in the section annotated. The legal import of each word 
 (letiiclied from the others has not been decided. Indeed, the idea which attaches 
 to each word must of necessity be much blended wiih the ideas conveyed by t'le 
 others. A party delayed may be prejudiced ; a party prejudiced may be enibar- 
 rnssed; a pnvty delayed and embarrassed must be prejudiced. The words are of 
 very i^enond sii^nitication, and must in all cases be received with reference t<> che 
 object of pleading. The object of all written pleadings is to enable the parties 
 before trial lo arrive at some statement affirmed on one side and denied on the 
 oilier, tlint the same may be submitted for decision to the proper tribunal, as the 
 issue between the parties. The reason of the thing requires clearness and single- 
 ness of averment as much now as before the C. L. P. Act. A power must exist 
 somewhere of compelling the parties to be clear and distinct in their st.itements. - 
 There must be a remedy against ambiguity whether intended or not. A rambling 
 pleading, mixing up several grounds of action or defence, and composed of diflFe- 
 rent matters of fact and law, must be objectionable : First report of the Commra 
 Law Commissioners. The delivery of any such pleading by one party to che 
 other must necessarily " embarrass" him, and perhaps " delay" the trial to the 
 "prejudice" of pne party or the other. The remedy of the party aggri'jved 
 instead of being by special demurrer as formerly, is by application to amend at 
 the costs of the party in fault. In effect the statute says, " no pleading shall be 
 demurred to specially, and, even if it be not open to general demurrer, yet if \t be 
 so framed as to prejudice, embarrass, or to impede the trial, it shall bo open to • 
 amendment or excision by the judge :" in Regina v. The Sadlers' Co. 22 L.J, Q.B. 454, 
 ffr Coleridge, J. The rule is this, no mistake heretofore available only on special 
 demurrer is now available, except where the mistake is one calculated to embar- 
 rass the plaintiff: Dumnore v. Tarhlon, 16 L. & Eq. 393, j)er Erie, J. The d-^air- 
 able object in pleading is now to place on record the simple ground of action, 
 defence, Ac., in as intelligible a form as possible : lb. 394. If a party instead 
 of apiilying to set aside an embarrassing pleading demur, the court will give the 
 pleading the meaning demurred to if the words used will fairly bear such a mean- 
 ing; Ruckle;/ V. Kiernan, 7 Ir. C. L. R. 75, 79, A pleading susceptible of one 
 interpretation on demurrer and another at nisi prius is embarrassing : Lauremon 
 T, //;//, 10 Ir. C. L. 11. 177 ; see also Began v. ihe Bagnahtoim tt Werford R. Co, 
 6 Ir. Jur. N. S. 395. A pleading so framed as unnecessarily to embrace more 
 points than one, and compel the opposite party to come prepared for all, is a 
 pleading so framed as to prejudice the fair trial of tlie action: Forsyth v. Biialowe, 
 j S Kx. ;J47 : see also Smith v. Hardy, 8 Bing. 435 ; MUford v. Finden et al, 8 M. <fe 
 W. 511 ; Waterman v. Carden. 6 M. & G. ,o2; The Wetland R. Co. v. Bide, 6 II. 
 A- N. 410 ; Hooper v. The Bristol Fori Rail'oay cD Fier Co. 35 L. J. C. P. 299. A 
 plea wliicli did not answer the wliole cause of action and would have embiirrased 
 I tlie plaiutili' in his reply was ordered to be amended : Grcm ft ux. v. Hiud, 4 Prac. 
 J li. o:!7, prr Draper, C. J. A plea containing matter of evidence was struck out 
 by order of a judge : Hancock v. Koycs, 9 Ex. 388. So, in an action by an assignee, 
 « plea that the property was not vested in plaintiff: Cottiila v. Soames, 3 F. & F. 
 j83; see also C'uthbertwn v. Irving, 4 H. A N. 742. But where plaintiff bona fide 
 states a contract according to his construction of it, and insists that he is correct, 
 "judge will not compel him to alter his statement of it: Taylor v. Smith, 3 F. <t 
 |f. S)i. Pleadings which before this act would have been bad for duplicity, argu- 
 
m 
 
 ,m 
 
 r 
 
 
 
 
 \m 
 
 168 THE COMMON LAW PROCEDDEE ACT. [s, 119. 
 
 such other order respecting the same, (tc) and also respectino 
 
 nientativeness, uncertainty, or inconsistency, may be such as to render necessary 
 applications to amend under the enactment iiere annotated, 
 keference may be properly made to some such cases — 
 
 1. Duplicity — see Messiter v. Rose, 13 C. B. 162; Fomyth v. Bristowe, 8 Ex, 
 847; Deacon et al v. Stodhart et al, 5 liing. N. C. 594; Webster v. WattSf II q! 
 B. 311. 
 
 2. Argumentativeness — Leaf et al v. Tuton, 10 M. & W. 359 ; Turnley v. Mac 
 gregor, 6 M. & G. 46. 
 
 3. Uncertainty — Fiockton et al v. Ilall et al, 14 Q. B. 380; Cubitt et al v. Thorny. 
 son et al, 5 Ex. 811. 
 
 4. Inconsistency — Inconsistent pleas have been allowed when amounting to a 
 "substantial defence": Diieer v. Triebuer, 3 Dowl. P. C. 133; Wilkinsony. Small, 
 lb. 664. But pleas " vexatiously inconsistent," as non assumpsit to a whole decla- 
 ration and payment as to part, have been disallowed: Steill v. Slurry, lb. 133; 
 Bastard v. Smith et al, 5 A. <fe p:. 827. 
 
 Since this act, non assumpsit pleaded to an action on a promissory note Was in 
 this province struck out on an application to a judge in chambers: Jtosse v. Dot- 
 ton, 2 U. C. L. J. 208, per Richards, J. Pleadings not issuable must often prove 
 embarrassing. An issuable plea is one that at once puts the merits of the cause 
 in issue either on the facts or the law: Steele v. Ilarmer et al, 14 M. &, W. 136, 
 A plea cannot be issuable if clearly bad in substance : Lloyd et al v. Blackburn, 
 
 1 Dowl. N. S, 647; Watkinsy. Bensusan, lb. 615; see also Thomson \. Redman, 
 
 2 Dowl. N. S. 1028 ; Mackay v. Wood, 9 Dowl. P. C. 278 ; Selhy v. The East An- 
 glian Rs. Co. 7 Ex. 53. A sham plea cannot be issuable : Heron v. Ileroti, 1 W, 
 Bh376; Lowfield v. Jackson, 2 Wils. 117; Cave v. Aaron, 3 Wils. 33; Browne, 
 Austin, 4 Dowl. P. C. 161. As to when pleadings generally are or are not issii 
 able, reference may be had to the following cases: — Dickson v. Boutton, 6 T. C. 
 Q. B. 568; Bleicitt v. Gordon, 1 Dowl. N.fe. 815; Humphreys v. Lord Waldrgravt, 
 6 M. & W. 622; Myers v. Lazarus, 1 Dowl. N. S. 316; Willis v. Hallett, 5 Binf;, 
 N. C. 4G5 ; Hughes v. Pool, 6 Scott. N. R. 959 ; Parratt v. Goddard el ul, 1 Dowl, 
 N. S. 874; Mackay v. Wood, 9 Dowl. P. C. 278 ; Baleson y. Lee, 1 D. & L. 224; 
 
 Whitehead v. Harrison, lb. 706; Se.ivell v. Dale, 8 Dowl. P. C. 309; Shanes. 
 Packman, 11 M. <fc W. 770; Thomsons. Redman, 2 Dowl. N. S. 1028; Burm. 
 Goldner, 1 D. tt L. 834 ; Searle v. Bradshaio, 2 Dowl. P. V,. 289 ; Birch v. Lenh, 
 2 D. it L. 88 ; Wilkinson v. Page, 1 D. & L. 913 ; Harvey v. Watson, 7 M. & G. 641 
 Verbist v. DcKeyser, 3 D. & L. 392; Huihwaite v. Phaire, 8 Dowl. P. C. 541; 
 Beauclerk v. Hook, 20 L. J. Q. B. 485 ; Tagg v. Simmonds et al, 4 D. & L. r)82; 
 Bousfieldv. Edge, 1 Ex. 89; Wettenhally. Graham, 4 Bing. N.C. 714; Besanis. 
 Cross, 20 L. J. C. P. 173 ; May hew et al v. Blofield, 1 Ex. 469 ; The Cork tj- Bandon 
 E. Co. V. Ooode, 13 C. B. 618 ; Crutchley v. The London ^ Birmingham R. Co. 2 D. 
 & L. 102; Lajorest v. Wall, 9 Q. B. 599; Hunter v. Wilson, 19 L. J. Ex. 8; Lin- 
 wood V. Squire, 19 L. J. Ex. 237 ; Moore v. Fa iter, 5 C. B. 220; Schenk v. GodU, 
 1 C. L. Rep, 115; Dunmore v. Tarletan, 16 L. A t^ 391; Roberts v. Brett, 34 L, 
 <fe Eq. 421 ; Wallace v. Grover et al, 1 Cham. R. 1 ; Eccles v, Johnson, lb. W; 
 Sherwood v. 3Iarch, lb. 176 ; Jessup v. Frazer, II. T. 4 Vic. MS. R. & H. Dig. 
 "Assessment of Damages," 5. 
 
 (to) To hold that a plea is bad because more or less obscure would bo unrea- 
 sonable unless the party pleading it will not amend and clear up the obscurity 
 when it is pointed out to him : Common Law Commissioners' first Report. If lie 
 fail or refuse to do so there is but one alternative — to strike out the pleading. A 
 party whose pleading is defective or vicious will see the propriety of himself 
 applying for an amendment. Even surplusage rnay vitiate, aud may, if embar- 
 rassing, be struck out upon application of the adverse party. But it has been 
 held that breaches in a declaration where there were three, one of which was 
 
 (x) If a rule unc 
 
 I' ''■ * 
 
s, 120.] 
 
 CAUSES CF DEMURRER. 
 
 159 
 
 the costs of the applicition, as such Court or Judge sees 
 fit. (.r) 19 Vic. c. 43, 8. 101. 
 
 DEMURRERS. 
 
 120. {y) Either party may object by demurrer to the Eitiu-r party 
 
 pleading of the opposite party on the ground that such plead- to'tiie pi'Jad- 
 in<' docs not set forth sufficient ground of action, defence ui'lju'i'sit!"^ 
 or reply, as the case may be. 19 Vic. c. 43, s. 99. ^""'■*'' 
 
 ffood and two bad, to which latter there was a demurrer, could not be treated as 
 surplusage after demurrer: Luah v. Russell, 4 Ex. 637. 
 
 (.c) If a rule under this section be made absolute in its terms, the party obtain- 
 in" it gets the costs as costs in the cause : Barnes v. Uayward, 1 II. <t N. 242. 
 
 (y) Taken from the Eng. Stat. 15 «fe 16 Vic. cap. 76, s. 60. The effect if not 
 the object of this enactment, taken in connection with section 12.S, is to abolish 
 special demurrers. 
 
 Tlie sufficiency of a pleading has from the earliest period been held to depend 
 upon its substance ; but when written were substituted for oral pleadings, attention 
 to form became requisite. The parties instead of pleading impromptu before the 
 iiidge who tried the cause, were enabled some time before the time appointed for 
 the trial, by an exchange between themselves of written statements of grounds of 
 action and defence, to arrive at issue. The object in rcquiriifg a proper attention 
 to form was to ascertain and settle upon the pleadings the exact questions to be 
 di.'tennint'd between the parlies, and as an incident to prevent the introduction of 
 cxtrani'Dus matter. The necessity for form once recognized let in a number of 
 arbilriiry rules intended to prevent uncertainty, obscurity, duplicitj', and other 
 like ck'tVcts. An anxiety on the part of the judges, that pleadings should be cer- 
 tain and at the same time sure, led to unnecessary precision, which occasioned on 
 the part of pleaders muc!) and useless prolixity. The result of the whole has been 
 obscurity, perplexity, and fiction, the very evils that special pleading was designed 
 to prevent. In this way the evils grew in magnitude as decisions accumulated, 
 until in the end form too often triumphed over substance. The legislature at a 
 very early period of English history were alive to the growing tendency of tech- 
 nicality and subtlety. In the year 1585 a statute was passed which recited that 
 'great delay and hindrance of justice lias grown in actions and suits between the 
 subjects of this realm, by reason that upon some small mistaking or want of form 
 iu pleadings, judgments are often reversed by writs of error, and oftentimes upon 
 demurrers in law given otherwise than the matter in law, and verj/ ri<jht of the 
 cause doth require, whereby the parties are constrained either utterly to lose their 
 riij;ht, or else after long time and great trouble and expences to renew again their 
 suits." For remedy whereof it was thereby enacted " that from henceforth after 
 demurrer joined and entered in any action or suit in any court of record within 
 this realm, the judges shall proceed and give judgment according as the very riqht 
 of Ike cause ana matter in law shall appear unto them, without regarding any im- 
 perfection, defect or want of form in any writ, return, plaint, declaration, or other 
 pleading process or course of proceeding whatsoever, except those only which the 
 party demurring shall speciallif and particularly set dov n and express, together 
 witiihis demurrer; and that ho judgment to be given shall be reversed by any 
 writ of error, for any such imperfection, defect, or want of form as is aforesaici, 
 except such only as is before excepted;" 27 Eliz. cap. 5, s. 1. Notwithstanding 
 this enactment, objections to form were frequently raised, to which the courts were 
 constrained to yield, although " the very right of the cause and matter of law " 
 
160 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 120. 
 
 r- 'lri"'l«Bli!^YSt.^l'l 
 
 
 '-ill 
 
 
 
 
 might be with the party whose pleading was found to be defective, but who was 
 unfortunate enongli to risk a special demurrer. For remedy of this evil it was 
 enacted that " where any demurrer shall be joined and entered in any action or 
 suit in any court of record within this realm, the judges shall proceed and give 
 judgment according as the very right of the cause and matter in law shall appear 
 unto them, without regarding any imperfection, omission or defect in any writ, 
 return, plaint, declaration, or other pleading, process, or course of proceeding 
 whatsoever, except those only which the party demurring shall specially and 
 particularly set down and express, together with his demurrer, as causes of the 
 same, Ac, so as sufficient matter appear in the said pleadings upon which the court 
 may give judgement accotuing to the vert/ right of the cause," &c. : 4 Anne, c. 16, s. 
 1. There is but one pervading spirit in these acts, which is, to make substantial 
 justice paramount to mere form ; and j'ot experience has shown that the acts, 
 though of great benefit, have failed in their object. Both acts required the judges 
 to give judgment " according to the very right of the case and matter in law," 
 without regarding imperfections, omissions, or defects in for"i. "except those which 
 were speciffcall u set forth," thus impliedly authorising the judges to give judgment 
 against the very right of the cause, <fec., on an objection for want of form, provided 
 it were specifically pointed out. This gave birth to "gjjggijil demurrers," the ally 
 of unscrupulous technicality, and the preserver of all that was obnoxious and em- 
 barrassing in the rules of pleading. The necessity for form was retained with ail 
 its evils. Nothing remained to be done but to destroy a system which, though 
 intended for good, had been perveited to serve dishonest purposes. Special 
 demurrers are therefore by this section numbered with the things that are 
 past. Demurrers were of two kinds — genera l, which related to matters of sub- 
 stance ; and s pecia l, which related to matters of form. The latter only having 
 been abolished, the former, if not retained in name, are in effect preserved. The 
 true construction to be put upon this section is to ascertain whether the decla- 
 ration or other pleading demurred to would have been good on general demurrer 
 before the act ; if so it will not be demurrable under this act. This is the true and 
 almost the only test. It is intended by the act to do away with matters of form, 
 but still it is not meant that that should be held to be good which is not good in 
 substance: Richards v. Beavis, 2 C. L. Rep. 675, per Campbell, C. J. The ques- 
 tion as to what is good on general demurrer is not altered by this act: lb. 676; 
 per Crompton, J, Of course pleadings cannot be held good where the partiea do 
 not choose to say what they mean. If the court were to hold such pleadings good 
 they would bo getting into the region of ambiguity and uncertainty, which would 
 be a worse evil than that which the act was intended to remedy: lb. per Cromp- 
 ton, J. Declaration not disclosing any consideration for an agreement neld bad: 
 Fremlin v. Hamilton et at, 8 Ex. 308. Declaration that defendants were indebted 
 to plaintiff for freight, omitting the words " for money payable by the defendant 
 to the plaintiflf," held bad : Place v. Potts et al, lb. 705. But see Fagg v. Nudd, 
 S El. <fe B. 660. Declaration for malicious arrest not stating that the action on 
 which the arrest took place was at an end, held good: Eakins v. Christopher, 18 
 U. C. C. P. 532. 
 
 The boundary between substance and form is not at all times easy to be defined. 
 The only guide in the way of precedent is that of general demurrer. Whenever 
 before this act pleadings were held to be bad on general demurrer, they will 
 generally be held to be bad upon demurrer under this act ; but the converse as 
 to special demurrer is by no means a safe guide. It will not do to say that in all 
 cases where pleadings were held bad on speciol demurrer only, they will be good 
 under this act. An analysis of the cases will do more to assist the judgment in 
 this inquiry than any theory that can be propounded. With a view to this, the 
 Editor subjoins aowic* coses decided before the act. To review all would be the 
 work of a pleader, and a labour which it is believed no pleader can satisfactorily 
 accomplish. 
 
s. 120.] 
 
 OAUSES OF DEMURRER. 
 
 161 
 
 It is enacted that either party may object to the pleading of the opposite party 
 on tlie ground that such pleading does not set forth " sufficient ground of action, 
 dtfcice, or reply, as the case may be. As to these severally — 
 
 First— as to the ground of action, wiiich should appear in the declaration. 
 Plaintiff must so explain his cause of action as to maice it appear to the court 
 that there is sufficient foundation for the action. All essentials or whatever is 
 of tiie substance of the action must be alleged, that the court may be enabled to 
 give judgment for him in case a verdict is found in his favour: Bac. Abr. "Pleas 
 and I'leadings," A. The law requires the declaration to contain certainty and 
 truth that the defendant may be able to make a proper answer thereto and tlio 
 court give a right judgment thereon : lb. B. In trespass for taking goods, <fec.. 
 g declaration not setting out the goods by specific description, but mentioning 
 them as " divers goods and chattels," «fec., bad on general demurrer : Friesman v. 
 Domelli/ et al, 5 O. S. 16 ; see also Holmes v. Hodgson, 8 Moore, 879. But though 
 informal if it do not aver the goods, Ac, to be the goods of the plaintiff, it is not 
 bad on general demurrer : O'Brien v. Uarahy, 1 U. C Q. B. 476. A declaration 
 by plaintiff suing on a lease as reversioner, which shows plaintiff if reversioner at 
 ail to be so jointly with another person not a co-plaintiff, bad on general 
 demurrer : Scott v. Godw'n, 1 B. «fe P. 67. So a declaration on a charter party 
 deacribing plaintiff as " freighter for six voyages," but omitting to aver that 
 defendant agreed to six voyages, has been held bad since the Eng. C. L. P. Act : 
 Richards v. Beaois, 2 C. L. Rep. 673. So a declaration for omitting to cleanse 
 drains whereby the plaintiff's premises suffered damage, is not sufficient, though 
 it describe defendant as " owner and proprietor" of the premises on which the 
 drains are situate. Further grounds of liability should be stated to, make the 
 cause of action good in substance. Defendant though both owner and proprietor 
 is not necessarily as such bound to clennse drains : Russell v. Shenton, 3 Q. B. 
 419, A declaration in case against a tenant for allowing premises to become 
 out of repair, but not showing defendant to be more than a tenant at will, has 
 been held bad on general demurrer : Harnett et ux. v. Maitland, 16 M. «fe W. 257. 
 (!«, If a declaration in covenant for non-repair not stating a term would be bad 
 on general demurrer : see Turner v. Lamb, 14 M. <fe W. 412. A declaration aver- 
 ring a promise to have been made by defendant, in consideration that plaintiff' 
 would forbear to prosecute a qui tarn action, but not averring that plaintiff did 
 forbear, has been held bad on general demurrer: Harty. Meyers, 7 U. C. Q.B. 416. 
 Where the declaration sets out the consideration for defendant's promise, and in 
 doing 80 discloses in substance a good cause of action, an uncertainty in stating 
 a part of the demand will not make the declaration bad on general demurrer : Brad- 
 ford et al\. O'Brien, 6 U.C. Q.B. 417. If any part of the declaration show a good 
 cause of action, it will be sufficient: Davis v. The London & Blackmail R. Co. 1 M. 
 it G, 801, per Tindal, C. J. A declaration in assumpsit averring in consideration 
 that plaintiff, at request of defendant, had promised to do all the work necessary 
 in bottling beer, it was agreed between plaintiff and defendant that defendant 
 should within twelve months from a certain day (named) supply plaintiff with at 
 least 500 hogsheads of beer to bottle, and breach, that defendant not regarding, 
 ic„ held good in substance: FanninY. Anderson, 7 Q. B. 811 ; see also Duke et al 
 V, Dive, 1 Ex. 36, and Balfe v. West et al, 1 C. L. Rep. 225, the latter case having 
 bad on demurrer : Wright v. Clements, 3 B. <& A. 508 ; also see Schedule B. 
 tion for a libel, averring the libel to be " in substance as follows," would be 
 been decided since the English C. L. P. Act. It would appear that a declara- 
 to this Act, No. 29. Where by agreement concurrent acts are to be done by 
 plaintiff and defendant, it is sufficient in a declaration against defendant for not 
 doing the act on his part, for plaintiff to allege generally " that he was willing to 
 perform the agreement" without expressly averring that he was ready and will- 
 ing to do the concurrent act on his part: Kemble v. Mills, 1 M. «& G. 767. In an 
 !)t.tion for breach of contract plaintiff averred that defendant on 4th August, 
 
 11 
 
 » » 1 
 
162 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 120. 
 
 ^ f^ 
 
 1844, agreed with plaintiff to erect a house by the middle of November "nejt 
 ensuing." Breach that the house was not erected in the middle of the month of 
 November. Held bad on general demurrer in not showing that November, 1844, 
 was November next ensuing the agreement : Ekinsv. Evans, 2 U. C. Q.B. 144. In 
 debt on bond the declaration averred that defendant and one S. acknowledged 
 themselves bound to plaintiff in £8000, to be paid to plaintiff, or to one W. E. on 
 request, and that thereby and by reason of the non-payment thereof an action 
 hath accrued, Ac. Held that it was unnecessary to allege a reqiiest, and that 
 non-payment was sufficiently shown : Kepp et al v. Wiggett et al, 6 C. B. 280. The 
 omission of a special request even when proper to be inserted is matter of forni 
 only, and cannot be objected to on general demurrer : McLeod v. Jackson, 5 0. S. 
 818. But where in debt on bond, conditioned on delivery of good "merchant- 
 able'' grain, to deliver a certain quantity of whiskey, an averment in the declais- 
 tion that plaintiff had delivered good " distillery" grain, but that defendant had 
 not, Ac, was held to be bad on general demurrer : Cowper v. Fairman, 3 0. S. 
 668. A count on a bond conditioned to pay money on notice, but averring notice 
 only that the money was due, is bad : Batson et al v. Spearman, 9 A. A E. 298, 
 So in an action on a policy of insurance on which losses arising from riot or civil 
 commotion were excepted, a declaration negativing loss by civil commotion only 
 is bad : Condlin v. Hmne Dist. Mutual Fire Ins. Co. H. T. 6 Vic. MS. R. A II. Dig, 
 " Insurance," 2. A declaration averring that A. and others had agreed to become 
 members of a certain society, and that in the event of either of them leaving it 
 he should pay to the President, but not averring to what president or liow the 
 obligation should be enforced, was held bad on general demurrer: Shepherds 
 Duncan, 15 L. T. Rep. 303. Where the declaration stated that plaintiff sued the 
 defendant for that the defendant agreed with the plaintiff to cause a certain vain 
 Btion to be made, by neglecting to do which special damage accrued to the 
 plaintiff but did not aver any consideration fur the agreement, it was held bad. 
 And per cur., " the C. L. P. Act, 1852, has no doubt afforded great latitude in 
 pleading; but it has not removed the necessity of stating a consideration for an 
 agreement upon which a party is sought to be charged :" Fremlin v. Hamilln 
 et al, 8 Ex. 308. So where a declaration in an action for freight stated that " the 
 defendants are indebted to the plaintiff for freight," Ac, but omitted to aver that 
 there was any money payable by defendant to plaintiff, the declaration was held 
 bad: Place v. Potts et al, lb. 705. This is a defect which may be cured by plead 
 ing over: Wilkinson v. Sharland, 24 L. J. Ex. N. S. 116. But a declaration "for 
 money found to be due from the defendant to the plaintiff on account stated be- 
 tween them" has been held sufficient, as the law implies a promise between them; 
 Fagg v. Nudd, 8 El. A B. 650. 
 
 2. Plea. If defendant do not demur to the declaration, his only alternative is 
 to answer it by matter of fact. In doing so he is said to plead, and the answer 
 of fact so made is called the plea. Pleas are divided into dilatory and peremp- 
 tory. A peremptory plea or plea in bar may be defined as one which shows 
 some sufficient ground for barring or defeating the plaintiffs action. Pleas in 
 bar are divided into pleas by way of traverse and pleas by way of confession and 
 avoidance. As the plaintiff's declaration must set forth all essentials neces- 
 sary to maintain his action, so the defendant's plea in bar must be substantially 
 food and certain : Bac Abr. " Pleas and Pleadings," I. 2. Pleas, though they may 
 e general, yet should not be so general as to be vague. Care should be taken 
 not to get " into the region of uncertainty and ambiguity." A plea to an action 
 of covenant that defendant did not break his covenant held bad on demurrer: 
 Taylor v. Needham, 2 Taunt. 278. A plea of performance otherwise than in the 
 terms of the covenant is also bad : Scudamore et al v. Stratton et al, 1 B. A P. 466, 
 So to a bond conditioned to pay a sum of money in the event of another person 
 not paying it, a plea of satisfaction and discharge before breach is bad : Spence\: 
 Uealey, 1 C. L. Rep. 857. In debt on bond a plea of license not being by deed 
 
 ll:. 
 
8. 120.] 
 
 CAUSES CF DEMURRER. 
 
 168 
 
 is bad: Sellers v. Bickford, \ Moore, 460. So to a declaration in covenant for 
 not repairing a house witliin a reasonable time, it is a bad plea that defendant 
 repaired the house within a reasonable time after he was required to do so by 
 pl&intiff: Fisher v. Ford, 4 Jur. 1034 ; see also Jones v. Gibbons, 8 Ex. 920. To a 
 similar declaration a plea of eviction was held bad : Newton v. Allin, 1 G. A D. 44. 
 Where, in an action of assumpsit for non-payment of rent, according to agree- 
 ment, defendant pleaded eviction by a stranger, but omitted to negative that the 
 stranger derived title under himself, the plea was held bad: McNab v. MeDonell, 
 2U. 0. Q. B. 169. A plea justifying an arrest on suspicion of felony, without 
 showing the grounds of the suspicion, is bad : Mure v. Kaye el al, 4 Taunt. 34. To 
 a dcclnration charging expulsion from a dwelling-house, a general plea of liberum 
 tmmentum, is good : Harvey v. Bridges et al, 3 D. & L. 55 ; but not to a declaration 
 charging an assault : Roberts v. Tayler etal, 1 C. B. 1 1 7 ; nor to a declaration in tres- 
 pass, quare clausum /regit and carrying away plaintiff's hay and corn, Ac. : Wilcox 
 V. Montgomery, 5 0. S. 312. There may be a general plea of fraud: Washbourn 
 V. Burrows, 1 Ex. 107 ; see also Robson v. Luscombe, 2 D. <& L. 859. To an 
 action for a libel a plea in general terms that plaintiff is a swindler and an im- 
 moral character, is bad: Holmes v. Catesby, I Taunt. 543 ; Brown v. Beatty, 12 U. 
 C. C. P. 107 ; Stewart v. Rowlands, 14 U. C. C. P. 485; Baretto v. Pirie, 26 U. C. 
 Q. 6. 46S ; but if the declaration charge some specific fact of libel, a plea that it 
 is true in substance and in fact seems to be good : Weaver y, Lloyd, 2 B. <& C. 
 678; lloimsetal v. Stubbs, 7 C.B. N.S. 555; Hunter v. Sharpe, 13 L.T.N.S. o92; 
 liihrens et al v. Allen, 8 Jur. N.S. 118. To an action on the case for fixing a dog 
 spear whereby plaintiff's dog was wounded, a general plea alleging that plaintiff 
 had notice of the spear, is good : Jordin v. Crump, 8 M. <fe W. 782. To trespass 
 for siiooting a dog, a plea that the dog was used to worry sheep ; that just before 
 he was shot he was worrying defendant's sheep, and could not be otherwise 
 restrained from so doing, has been held a good plea, as it would be intended that 
 the dog was about to renew the attack: Kellett v. Stannard, 2 Ir. C. L. R. 156. 
 To an action against a gas company for a nuisance, a plea that (hey are " now " 
 managing their works carefully, dec, is bad : Watson v. Gas Co. 5 U. C. Q. B, 
 202. So a plea of set-off to an action claiming unliquidated damages: Attwool 
 V. Attwool, 1 C. L. Rep. 242. To an action on a bond, the plea of nil debit is 
 bad: Anon, 2 Wils, 173. And a plea contrary to the express condition of the 
 bond is bad. Therefore to a bond conditioned for the payment of money, a plea 
 that the bond was given as an indemnity, was held to be bad : Mease v. Mease, 
 1 Cowp. 47; see also Murray v. King, 6 B. *fe Al. 165. To a declaration on an 
 agreement to forbear suing, a plea that defendant had no cause of action is bad : 
 We v. Simeon, 2 C. B. 548. So to an action on a note, a plea that it was given 
 for lauds sold without a liote in writing : Jones et al v. Jones et al, 6 M. «fe W. 84. A 
 material alteration in writing avoids a bond, but a plea alleging an alteration 
 without averring it to be in writing is bad: Harden v. Clifton, 1 Q. B. 522. To 
 an action on a bond, conditioned for the performance of several matters, a general 
 plea of performance is bad : Roakes v. Manser et al, 1 C. B. 531. So to an action on 
 a bond conditioned that A, as a bank agent, should account, &c., a plea that 
 before action brought, A ceased to be agent, and that while he was agent he kept 
 ili the clauses of the bond : Bank of Upper Canada v. Bethune et al, E.'T. 5 Wm. I V. 
 ilS. R. & H, Dig. " Pleading," V. 2. Debt on bond conditioned that if the obligor 
 should practice as a surgeon at S, at any time, without the consent in writing of 
 the obliiree, then obligor should be obliged to pay obligee £1000 — the bond to bo 
 void, riea, that defendant did not practice as a surgeon at S, without the cou' 
 sent in writing of the obligee: Held bad on general demurrer: Hastings et al v. 
 Uitley, 2 Ex. 611. So to a bond conditioned that defendant should " well and 
 Wy " convey to plaintiff, his heirs and assigns forever, a piece of land, a plea 
 by defendant that he did make and execute a conveyance in fee simple to plain- 
 litf. is bad : FrindU v. McCan et al, 4 U. C. Q. B. 228. To an action of debt for 
 
1G4 
 
 THE COMMON LAW PROOEDUBl! ACT. 
 
 t 'U 
 
 money lent n plea ns to £100, part thereof, that defendant made his note to plain- 
 tiflF'a order for £100, ia bad for not averring that the note was still running: 
 Price V. Price, 16 M. «k VV. 232. A plea of infancy when there has been a linbility 
 contracted and subsequent repudiation should allege that the repudiation was madp 
 witliin a reasonable time after defendant attained his majority : The Dublin and 
 Ulc/dow K. Co. V. Black, 8 Ex. 181. To an action on a foreign judgment defendnntj 
 
 E leaded that they were not served with any process, and that plaintiff unjustly, and 
 ehind their backs, entered an appearance for them was held bad in not averrln|[ 
 that defendants had no notice of the writ : Sheehy v. The Profetsional Life Atm. 
 Co 13 C. B. 787. In assumpsit for work and labor there was a plea, that the 
 money mentioned in the declaration accrued due to the plaintiff for the buildin<' 
 of a church ; that the plaintiff having suspended the work another agreement m 
 entered into between him and one A, under which the plaintiff, in consideration 
 of certain stipulated payments, undertook to complete the work and to rely for 
 the residue of the contract price upon certain subscriptions which were to be 
 raised ; and that A duly made, ond the plaintiff received, the payments stipulated 
 fc by the second agreement, in satisfaction and discharge of the original agree- 
 ment between the plaintiffs and the defendants, and of the performance thereof 
 by the latter: Held & bad plea in substance: James v. Isaacs et al, 12 C. B. 791, 
 A plea to a declaration on a note showing it to have fallen due in January, 1848, 
 that defendant paid the note on the Slst December, 1847, before it became due, 
 is had on general demurrer: Down v. Huwke, 6 U. C. R. 275. 
 
 3. Replication A replication is the plaintiff's answer to defendant's plea, and 
 should fortify and support the declaration. The material requisite in a replica- 
 tion is tlint it should pursue what has been first alleged and insisted upon in the 
 declaration, otherwise there will be a departure in pleading : Bac. Abr. " Pleas and 
 Plendinij," A. A replication which in general terms denies the whole substance 
 of the plea is good even on special demurrer: Darbishire v. Butler, 6 Moore, 19S, 
 Where in trespass for seizing cottle and causing them to be sold, defendant pleaded 
 that the cattle were taken damage feazant, and proceeded to justify the sale under 
 Prov. Stat. 1 Vic. c. 2 1 . Replication that defendant's fences were defective, and that 
 the cattle escaped from the highway into the close. Held, replication clearly bad, 
 in not averring that the cattle escaped through the defect in the fences: Sledmrn 
 v. Waxh}/. 1 U.C. Q.B. 464. Since the first Eng. C. L, P. act it has been held that 
 ir. an action on a foreign judgment to which there was a plea denying notice of 
 the proceedings and residence in the jurisdiction, a replication that the action 
 was on a bill accepted within the said jurisdiction by defendant (who was then a 
 resident there,) and payable at a place within the jurisdiction, and that by the 
 laws of the foreign country in such cases, the place of payment is deemed the 
 elected domicile of the acceptor, and that notice of the proceedings were served 
 there in nccirdance with the foreign law : BM bad for not alleging that the law 
 was so at the timej the bill was accepted : Meeus v. Thellusson, 22 L. J. Ex, 239. 
 To an action of assumpsit defendants pleaded payment into court as to part and 
 a set-off as to the residue. Replication to the nrst plea that defendants were 
 indebted in a greater amount than the amount paid, and to the other plea that 
 plaintiff was not (not adding "nor is" in either case) indebted modo et form, 
 both replications were held bad on general demurrer: Small y, Straekan et al, 2U. 
 C. Q.B. 434. To an action of replevin in the old form, the defendant avowed for« 
 distress for rent due to him by one C, on a demise at a yearly rent, of which one 
 year's rent was in arrear on 1st January, 1860. Replication to this that the 
 close on which the distress was made was at the time when, Ac, the close of him 
 the plaintiff: Held bad as containing no answer in substance to the avowry: 
 Robertson v. JUei/ers, 7 U. C. Q. B. 416. 
 
 4. Rfjoinder. Rejoinder or defendant's answer to plaintiff's replication, mast 
 fortify and support defendant's plea. It must also pursue the line of defence 
 first insisted upon, or else there will be a departure : Bac. Abr. " Plcias and Plead- 
 
 (<•) As to the di 
 
 if'-slK 
 
121.] 
 
 FORM OP DKMURRER, 
 
 165 
 
 1!31« (z) The form of a demurror (a) sliull bo as follows, f'"""» "^ 
 or to the like effect : (6) 
 
 Tlio Defendant, by his Attorney, (or Plaintiff, as the case 
 may be,) (or in person, &c.,) eays that the declaration {or . 
 plea, &c.) is bad in substan'ce. (r) 
 
 And on the margin thereof some substantial matter of law a substan- 
 iutended to be argued shall be stated ; (</) and the Court or a oi\\fumm 
 
 in;;,' A. To debt on nn indemnity bond the defendant pleaded nun damnificatus, 
 nnd the plaiutifF having replied, showed how she was damnified. The drlendant 
 rejuined tiiat the injury arose through the piaiutifF's own fraudulent uet : Held 
 (in ^ji'iiLTal demurrer to be a departure: Hamilton v. Davis et al, 1 U. ('. Q.B. 490. 
 So wlitre plaintiff deelared in debt on bond for the non-performance of an award, 
 the (iBftMulnut pleaded no award. The plaintiff replied setting out the award, to 
 which tlie defendant rejoined matter extrinsic to the award, nnd relied upon it as 
 showinij tlie award void: Held a departure: Maxioell v. Tiinsom, 1 U.C. Q.B. 219. 
 '). SarrcJoinJer. This and all subsequent pleadings being governed by the 
 erne rules and with the same effect as the pleadings already noticed, there is no 
 necessity for pursuing the subject any further, 
 
 (2) Taken from Eng. Stat. 16 ife 16 Vic. cap. 16, s. 89. 
 
 (a) Demurrers for matters of form are by this act abolished ; but demurrers 
 for matters of substance are retained and are such as are intfut'ed by this sec- 
 tion; see note to tection 120. The words " ejccept in the cases herein specifi- 
 cally provided for," used in the corresponding section of the English act, are not 
 to be found it will be perceived in our section. The meaning of such an excep- 
 tion wiiij a matter of doubt to the commentators on the English act, and our legis- 
 lature have done wisely in omitting it. 
 
 {h) It is presumed that a demurrer, iike any other pleading, must be intitled of 
 the proper court and of the day and year when pleaded : see section 17 of this 
 act ; aud in connection therewith see Holland et al v. Tealdi, 8 Dowl. P. C. 320. 
 
 («) As to the distinction between substance and form see note to section 120. 
 
 id) Tha provision following is a substantial re-enactment of Rule 14 E. T. 
 5 Vic, whiuh wus taken from Eng. R. G. 2 H. T. 4 VVm. IV. (2 Dowl. P. C. 304), 
 and which was held not to apply to revenue cases : Rex v. Woollett, 2 C. M. ife R. 
 256. It was held under it that a substantial compliance with its terms was in all 
 ordinary cases necessary. A statement that " the matters in the plea contain no 
 answer it the action," was held to be insufficient: Ross v. Robeson, 3 Do«l. 
 P. G. 770, And, per Parke, B., " The statement in the margin is merely a repe- 
 tition of the general demurrer, and would suit any other general demurrer to tlie 
 plea just as well. Some special ground ought to have been stated:" lb. 780. It 
 lias also been held that if several grounds be stated in the margin it is not neces- 
 sary for the party demurring to specify on which of those grounds he intends to 
 rely: WhUmore v. Mcholls, 5 Dowl. P. C. 521. And, per Williams, J., " It may 
 be that there are several grounds stated in the margin which cannot be sustained 
 when they come to be argued. But that does not vitiate the other points, or 
 render tiiis statement a nullity so as to entitle plaintiff to set aside the demurrer 
 aa for want of a plea :" lb. For examples of statements of several grounds of 
 demurrer see Smith v. Monidth, 18 M. «fe W. 427 ; Boivzi et al v. Stewart, 1 M. <fe 
 G. 748. If a party demur to several pleas on the same grounds, the causes of 
 
ni-l 
 
 166 
 
 THE COMMON LAW PROCKDURE ACT. 
 
 [8. 121. 
 
 fir- 
 
 
 to be stated Judge may set aside any demurrer delivered without such 
 
 iimrgin. statement, or with n, frivolous statement, (c) and may give 
 
 leave to sign judgment as for want of a plea ; (/) 
 
 demurrer to all after the first are HufTiciently stated by stating that the pica, dc., 
 is insufficient, " for the like causes and grounds of objection which have been 
 taken to tliesaid (first) plea:" Braham v.Watkinn, 16 M. & W. 77. The niorijinal 
 notes are meant for the information of tlie court aud not of the parties : Scott ti a/ 
 V. Chappelow, 4 M. <fc G. 330. 
 
 (e) To decide when an objection is frivolous, it will be necessary to bear in 
 mind that the main object of this act is to make form subservient to matter. The 
 court must obviously possess a discretionary power to set aside f.ivolous demur- 
 rers or pleadings, to preserve its own records from abuse, the public time from 
 beini; wasted, to prevent the useless accumulation of conts to the prejudice of the 
 client, and to the advanta<re of tliose only who ought to protect him from these 
 evils, and to the delay, if not the perversion of justice: see section 110, and notes 
 thereto. But it is manifest that all these evils will be aggravated if tiie exercise 
 of a judge's discretion is frequently made the subject of an appeal to the court. 
 When tlie court clearly sees an attempt to secure a triumph to falsehood by 
 means of a bad pleading the possibility of a doubt being raised in argument 
 affords no reason for interfering with the judge's discretion : Lane v. iiW/ey. 
 10 Q. B. 481, per Denman, C, J.; Padwick v. Turner, 11 Q. B. 124. 
 
 (/) The mode pointed out by this section for taking advantage of an irrejjiilar 
 demurrer is the proper one to be adopted. No objection that might be taken 
 advantage of in this mode can be raised on the argument of the demurrer: Lactj/ 
 V. Umhent, 3 Dowl. P. C. 732. To entitle a party to set aside a demurrer because 
 of a frivolous statement the objection taken must be clearly tenable. If there be 
 any doubt as to the sufficiency of the objection, the court will not interfere : Tm- 
 dall et al v. Ulleshome, 3 DowL P. C 2 ; Umkrshell v. Fuller, 5 Tyr. 392 ; Walkw 
 V. Catley, 6 Dowl. P. C. 592 ; Chevera v. Parkington, 6 Dowl. P. C. 76. A frivolous 
 demurrer is not so much an irregularity as an improper proceeding, which the 
 court in its discretion may set oside at any time : Cutis v. Surridge et al, 9 Q. B. li)23, 
 per Denman, 0. J. But an objection to the marginal notes or form of demurrer 
 should not be deferred till after joinder in demurrer, at which time it would be 
 too late : Norton v. Mackintosh, 7 Dowl. P. C. 629. A defective marginal note may 
 be amended on payment of costs: Rosa v. Robeson, 8 Dowl. P. C. 779 ; aud the 
 case postponed until the points of argument are properly stated : Parker v. R'de^, 
 3 M. & W. 230. The rule to set aside a demurrer as frivolous or for any cause 
 contemplated by this section will it is apprehended be nisi in the first instance: 
 Kinneiir v. Keane, 3 DowL P. C. 154; and in the case of a frivolous demurrer 
 shoidd be drawn up "on reading the pleadings:" lloworth v. Huhbersty, 3 Dowl. 
 P. C. 45.5; Danieli v. Lewis, 1 Dowl. N. S. 642. A rule that the demurrer beset 
 aside us irregular "unless cause be shown on Thursday next" has been issued: 
 Kinnear v. Keene, 3 Dowl. P.C. 154. If the demurrer be set aside, all < he pleadings 
 connected with it may also be set aside at the same time. In one case a rule vas 
 drawn up in the following form, " that the demurrer delivered herein be set aside 
 as irregular, and the pleadings connected therewith be struck out, and that the 
 defendant do pay to the plaintiff, his attorney or agent, within four days after I 
 taxation, all costs of and occasioned by the said demurrer, including the co^t^ of | 
 preparing for the trial of and attending to try this cause, and of this application, 
 to be taxed by one of the masters. And that the defendant do take short notice I 
 of trial for the sittings after terra ; and in default of payment of such costs within 
 four days after taxation as aforesaid, it is ordered that the plaintiff be at liberty 
 to sign judgment as for want of a plea : Tucker v. Barnesley, 16 M. (b W. 54. In ! 
 
 
88. 122, 123.] SPECIAL DEMURRERS ABOLISHED. 
 
 167 
 
 And the form of a joinder in demurrer shall be as follows, F»rm f>r 
 or to the like effect : (</) iiumuner. 
 
 The Plaintiff (or Defendant) says that the declaration (or 
 plea, &c.) is good in substance, (/t) 19 Vio. o. 43, s. 138. 
 
 1^23. (0 Where issue is joined on demurrer, the court jiuiRmnnt 
 shall give Judgment according as the very right of the cause ai'co'r.unK"* 
 and matter in law appears unto them, without regarding any J'jgi'i" """^ 
 imperfection, omission, defect in or lack of form, (j) and no 
 Judgment shall be arrested, stayed or reversed, for any such 
 imperfection, omission, defect in or lack of form, (k) 19 Vio. 
 c. 43, s. 99. 
 
 133. (I) No pleading or amended pleading (m) shall be special 
 
 o y DcllUUTGrS 
 
 deemed insufficient (h) for any defect which formerly could guiiorHedea. 
 
 the Queen's Bench and Common Picas it i8 tho practice on cross demurrers for 
 the plaintiff to begin : see Ilnlhead et al v. Young, 6 E. «& B. til 2 ; The Wolverhamp- 
 ton Water Works Co. v. Ilawkesford, 28 L. J. C. P. 242; Churchward v. The Queen, 
 L. R. 1 Q. B. 173. But in tlie Exclicquer tho practice is different, the party first 
 demui'ring being entitled to begin : see ///// v. Cowdery, 1 II. <fe X. 360 ; liedway 
 V. Swectiuy, L. II. 2 Ex. 400. Ihe word plea as used in this section means pleadf- 
 ing, and n[)plies to any pleading by either party : Cults v. Surridge et al, 9 Q. B. 
 1023, per Dcnman, C. J. 
 
 {g) See note 6 supra, 
 
 (h) As to when a pleading can be said to be good in substance, see note y to 
 
 section 120. 
 
 (i) Taljen from latter part of Eng. Stat. 15 & 10 Vic. cap. 76, s. 50. 
 
 (;■) It is made tho duty of the court to give judgment as " tho very right of 
 the cause" and " matter in law" appears unto tliem, without regarding any im-_ 
 perfection, omission, defect in or lack of form: see note y to section 120, Ssto 
 the difference between form and substance in pleadings. - 
 
 {k) The latter part of this section is in effect the same as the statutes of Eliza- 
 beth and Anne, recited in note y to section 120, with one exception — the designed 
 omission of all mention respecting special demurrers: sue section 123. 
 
 (I) Taken from Eng. Stat. 15 &. 16 Vic. cap. 76, s. 51. Founded upon the first 
 report of the Common Law Commissioners, section 35. This section is clearly 
 prospective : James v. Isaacs et al, 12 C. B. 795, per Maule, J. ; see also Fiuhorn v, 
 Sousler, 8 Ex. 138 ; Chase v. Scripture, 14 U. C. Q. B.«4Aa^ ^ c> ■& 
 
 (m) Applies equally to declarations, pleas, replications, rejoinders, and all aub- 
 Bequent pleadings: see note y to section 120. 
 
 (n) Before the passing of this act the sufficiency of a plea depended upon its 
 substance and form. The doctrine was well expressed as follows : " Tho law re- 
 quires two things. The one that it (the pleading) be in matter sufficient. The 
 other that it bo deduced and expressed according to the form of law. If either tho 
 one or the other of these be wanting, it is cause of demurrer :" Colt et al v. Bishop 
 
 ~^J^% 
 
wmmm 
 
 168 
 
 THE COMMON LAW PROOEDURB ACT. 
 
 [8. 124. 
 
 I ^ nfi 
 
 J <i 
 
 4 
 
 f i 
 
 mi 
 
 i 
 
 m^M 
 
 I 
 
 only have been objected to by special deinurror. (o) 19 Vic. 
 0. 43, 8. 100. 
 
 EQUITAUIiK DEFENCES. («o) 
 
 KqiiitiiMn 194. (/)) Any Defendant, or the Plaintiff in Keplevin, 
 bo'iX«(i'i"i!^ in any cause {q) who if Juviginoiit were obtained, would be 
 
 of Coventry, Ilob. Rep. 164, per Ilobart, C. J. Now tint sufficiency of a pleaclinj} 
 must depend more upon its HubHtnnco tiinn form — tlio Inttcr being only necfflsary 
 in HO far tlint tlio party pleading; must use apt lnni;ungo to explain what he niennj 
 in describing his cau.se of action, ground of defence, Ac. If a pleading tliou!,'li 
 not defieient in matter be so (ar deficient in form as to prejudice. cmbarrnsK, or 
 delay the opposite party, then au application to amend would appear to betlie 
 correct course: section 119. 
 
 (o) For any defect which could only be objected to by special demurrer, i, e, for any 
 defect which could heretofore have been objected to by special demurrer ouhj. 
 The true meaning of the sentence rests upon the import of the word " only," and 
 its connection with the context. Many pleadings have been held insufficient upon 
 special demurrers which might have been held equally so upon general demur- 
 rers. Hoth for matters of substance and of form a special demui rcr was deemed 
 a prudent proceeding. It follows that there may bo pleadings held bad upon 
 special demurrers, which under this act would be also bad, though special demur- 
 rers arc abolished. For example, reference moy be made to thefollowing decided 
 cases : Burgess v. Beaumont, 2 D. <& L. 690 ; Hill v. Montagu, 2 M. <Sc S. 377 ; Vft 
 V. Wakefield, 6 M. «k \V. 442 ; Bevins v. llu'me, 15 M. «t W. 88 ; Cramhay etat^. 
 Barry, 1 M. & G, 236 ; Miner v. Jordari, 8 Q. B. 615 ; Robertson v. Showier, 2 D. 
 (Sc L. t)87 ; Dawson v. Collis et at, 10 C. B. 623. A departure in pleading is still a 
 ground of demurrer, being matter of substance and not mere form : see BarlUtt r, 
 Uetls, 31 L. J. Q. B. 67; Brine v. The Great Western Ji. Co., lb. 101 ; The Thamii 
 Iron Works and Shipbuilding Co. v. I'he Royal Mail Steam Packet Co. 31 L. J.CP, 
 169 ; Rixon et al v. Jimary el al, L. R. 3 C. P. 646. 
 
 {oo) Suitors in a court have a right to expect the administration of complete 
 and final justice in that court. Whether proceedings be had in law or in equity 
 Buch ought to be the result of the proceedings. But coses have arisen in wliich a 
 court of law has given judgment in favour of a suitor, which a court of equity 
 has restrained him from enforcing. The fruit of a judgment at law is tlie writ of 
 execution. If the judgment were just, no court either of law or equity should 
 have the power of preventing the issue of execution. Tlie mischief was that 
 hitherto in some cases decided m courts of common law the administration of In^ 
 has not been the administration of justice. This was in a great measure attri- 
 butable to the fact of defences valid in equity being wholly excluded from the 
 cognizance of courts of common law. Upon a consideration of this mischief tl 
 Common Law Commissioners formed the opinion that " there are cases in 
 courts of common law have not sufficient power to prevent the law froni 
 the means of vexatious ond of useless expense." To enable these courts to 
 nister complete and final justice it was recommended " that whatever is gi' 
 for a perpetual injunction (in equity) shall for the future be received by courts of I 
 common law in the first instance as a defence." This recommendation has been ( 
 substantially enacted in the following sections. 
 
 ip) Taken from Eng. Stat. 17 A 18 Vic. cap. 126, s. 83. Founded upon tk| 
 second report of the Common Law Commissioners, section 49. 
 
 {q) This enactment applies only to actions in which pleadings ore allowed. 
 As there are no pleadings allowable in ejectment, there can be no equitoble plM I 
 
121.] 
 
 F.QtllTAni.E I'LKAH. 
 
 109 
 
 orititliHl to reliof ii^iiinHt siiuh Jiuljimcnt on cijuilnblo 
 itouikIh, (r) niiiy pleiul the facts wliiuli entitle him to such 
 
 — ■ * 
 
 or ri'iiliiHtion in timt fortii of nclioii; Xcave v. Aveti/ d <il, Itt C. 15. :i2S. As to 
 inti'i'liK-adur i.isuc'S : sot; Jiii.sdtn v I'ojic, L. U. :i Ex. litUl ; h. c. 18 L. T. N.S. t;51. 
 
 (r) Tlio itiii)i)rtnnt (jiicMion is wlint " oqiiitiiMp i,'roun(lH" will bn Mifllciciit. ns a. 
 (li'tVnrc in n (••nirt of conininn liiw. Tlic tirft Knj^li^li rci'ortcfi cnnp np)n'nra to bo 
 Jliiri/oiDie V. Cottitll, 'M L. J. (i. H. 28, wliicli nrost.' in tliu bail court, 'llic action 
 was iiv tlie indorsee of two bills of cxelinnf^e driiwii iibrond «iul tlirected as fol- 
 lows, ilie one "To tlie CliHirninn and Jioani of l)ire(t()rs of tiio A. C'oni|iany,"aiKl 
 the other " To tlio Hoard of l^irectors of the A. ('oin|innj'." Tliey were accepted 
 hy (hfiiidnnt, tlio cliairniau of tlio coniiiany, in such a manner as in the ojiinion 
 (if [ihdiititf to make lilni personally liable upon bis acceptances. l)efendant 
 (jcMred to plead as a defence on e(|uitalilo tjrounds in etfect tiiat tlio l)ills were 
 mldii'sseil to the eomjiany and intended to bo made bindinj; on the company, and 
 lliiit by nihuikf the defendant as chairman had so accepted tliem as to make liim- 
 si'lf persDiially liable: see aUo (.'vurtinihi \. StmrdriH, Iti L, T. N.S. 502. And, 
 ;«(• CrDiiipton, J., "The notion seems to be tliat to support an ecpiitable plea you 
 imi'*t show some equity tliat will pivo you a rif;ht to an nvconditionul injunction." 
 The plea was allowed to stand with liberty to plaintiff to demur. Tlio opinion 
 tiiiKs expressed luis been confirmed and supported in each of the courts of Exche- 
 quer, (Queen's Jiench, and Common IMeas. 
 
 First— h'xcheq'i&r. Mines lioyal Sorieties v. Mnynay, 10 Ex. 489. Action on a 
 lense for non-payment of rent and non-repair of promises. Defendant applied to 
 lit' allowed to (ilead an aq^reement, in sulJstanee that defendant should surrender, 
 ite,, and thai, i>win<f to the fraud and laches of plaintiff sueli surrender was not 
 cmiipleted. Parke, B., " In my opinion the equitable defence allowed to bo 
 pknded by this statute means such a defence ns would in a court of equity be a 
 iiimph'to answer to the plaintiffs claim, and would, ns such, afford sutiieient 
 irrmiiuls for a perpetual injunction granted absolutely and without any conditions. 
 But according to the statement in the plea a court of equity would not interfere 
 oxci'pt upon the condition of the execution of ft valid surrender by defendant. 
 Wc hiive no niacliinery by which wo can compel the execution of a surrender. 
 Tli« statute does not say that the courts of common law may pivo relief on equi- 
 Itthle conditions, but that a plea shall be allowed which discloses a di'faye ujjon 
 equitiiblo grounds :" lb, 493. Leave to plead the intended plea was therefore 
 rtfiistd. 
 
 The gravamen of this decision is that owing to the imperfect machinery of 
 courts of common law complete and final justice could not be done. These courts 
 Jiftve no power to order the execution and completion of a surrender, nor indeed 
 of fltiy n|! - rrirntori/ coutract : see I/yde v. Graham, 1 II. & C. 593 ; Wnhley v. 
 /' mit, 2 li. <v C. C»)9. When an agreement to do a thing is wholly executed, 
 nntliiiig ri'iiiuins to be done by either party towards perfecting it, such an 
 nient won I ' be a sufficient equitable ground of defence in courts of common 
 law. Thus, i' over for goods, defendants were allowed to plead that the 
 plaintiff was tliu owner of certain chemical works, that the goods in question were 
 st'if' ; trade, and materials on the premises ; that the defendants agreed to pun- 
 ch I lie chemical works, and that the goods in question were to be included in 
 till loperty sold ; that certain brokers were employed to make the contract, and 
 tliiit they made it by bought • >\ sold notes; that by mistake of the brokers the 
 iidIcs were so worded as not lo include the stock-in-trade and materials; that 
 possession of the ohemical works, including the goods in qucotion, had been dell- 
 viitcl by plaintiff to defendants, and the purchase completed ; and that plaintiff 
 was unjustly availing himself of what was a mere mistake in the notes. And, jter 
 I'arke, B., '' The statute says that ' it shall be lawful for \k\% defendant in any 
 
 
 :>,'!f "m 
 
r^ ' 
 
 "■ M 
 
 
 ^'ii 
 
 ir. 
 
 170 THE COMMON LAW PROCEDURE ACT. [s. 121. 
 
 relief by way of defence, and the said Courts shall receive 
 
 cause in which, if judfrment were obtained, lie would be entitled to relief aijainst 
 Bucli judgment on equitable grounds, to plead the facts which entitle him to such 
 relief by way of defence.' We have Uready held that the relief must be absolute 
 and unconditional ; and in this -lase I think that absolute and unconditional relief 
 would be granted. It seems to me that there would be no use in reforming the 
 agreement when it is wholly executed and nothing remains to be done by either 
 party:" Steele v. Haddock el al, 10 Ex. 645. 
 
 Second — Queen's Bench, Wodehoune el al v. Farehrother, 5 El. & B. 277. Action 
 on a bond against defendant as surety for a third party, who had covenanted 
 with plaintiff to repay £2000 lent on a mortgage of a policy of insurance, and 
 to keep up the policy until the money was repaid — breaches assigned. The 
 defendant admitted the breaches, but set up as an eqTiitable defence that he 
 was willing to pay all that plaintiff was entitled to in equity, if plaintiff would 
 assign his securities, but that plaintiff refused so to do. To this plea there was a 
 demurrer. And, per Campbell, C. J., " It is not for us, sitting here judicially, to 
 say how far it is desirable or expedient that equitable jurisdiction should be 
 given to courts of common law. We have only, looking to the language of the 
 legislature, to consider what equitable jurisdiction has actually bten given to us, 
 bearing in mind that unless, in as far as our power and our procedure have beea 
 altered by express enactment, or reasonable implication from what has been 
 expressly en<icted, they remain unchunged under the Common Law Procedure Act. 
 We are authorized to receive this defence by way of plea, if the facts pleaded 
 would entitle the defendant to relief on equitable grounds in a court of equity 
 against a judgment obtained in this action in a court of law, no equitable defence 
 having been set up there. The first objection to the plea is that the defendant 
 does not satisfactorily show that if such a judgment were obtained he would be 
 entitled to relief against it on equitable grounds within the meaning of the enact- 
 ment. He does not impeach the deed sued upon as fraudulent, or show that a judg- 
 ment obtoined in this action would not be honest. On the contrary, he admits 
 that he executed the deed, that he broke his covenant in the manner alleged t; 
 the declaration, and that he is liable i - pay to the plaintiffs the several sums 
 demanded in respect of arrears of interest, of non-payment of the premiums of 
 insurance, and of the costs incurred by the plaintiffs, against which ho was boun 
 to indemnify them. He only contends that after having made these payraen* 
 or at the time of making them, he is entitled to have the policy handed over to 
 him, which was assigned to the plaintiffs as a security for the debt due to them 
 from the principal debtor for whom he was surety, alleging that the plaintiffs had 
 refused to hand it over to him although he offered, on receiving it, to pay the 
 sums which he owed them, still offering to pay these sums and to indemnify the 
 plaintiffs. There is no doubt thut as a surety having done all that is incumbent 
 upon him in fulfilment of his engagement, he wo »ld be entitled, cs against the 
 debtor for whom he was sur y, to stand in the shoes of the creditor and to liavo 
 an assignment of any security which the satisfied creditor held for the debt 
 guaranteed. But no authority was cited to show what precise relief a court of 
 equity would have given to the defendant, if judgment had been obtained against 
 him in this action ; and at all events we conceive that he would be entitled to no 
 relief against the judgment, unless he filed a bill against the now plaiutitTs and 
 the principal debtor, and paid into court or undertook to pay the sums which be 
 admits that he owes to the plaintiffs on the judgment. He could only ask for 
 a temporary or conditional injunction against suing out execution on tlie judg- 
 ment, not for a perpetual or absolute injunction. The very important question 
 theref(,.-') arises whether, where a defendant would only be entitled to a relief 
 against a judgment to the extent of a temporary or conditional injunction, he is 
 entitled to set up his equitable grounds of relief by way of defence in a court of 
 
S. 124] EQUITAi'LE PLEAS. 171 
 
 such defence by way of plea; but such plea must begin with |;[j',''"',f",'J''' 
 
 law? We nre of opinion that as yet the legislature has aulhorizecl us to receive 
 8 plea disclosing equitable grounds of relief only where the facts would entitle the 
 defemlant to an absolute and perpetual injunction against the judgment. In this 
 last case no difficulty occurs, fur the plea is a simple bar to the action, and we should 
 onlv liave to pronounce the common law judgment ' that the plaintiff take nothing 
 bv his writ, and that the defendant go thereof without day.' But if the injunction 
 'to be temporary or conditional in equity, at common law we hove no such judg- 
 ment, and we have no analogous judgment. We could not attempt to do justice 
 between the parties without pronouncing, instead of a common law judgment an 
 equitable decree. If upon such a plea we were to give judgment in bar of the 
 action, all legal remedy would be gone, although the defendant confesses hia 
 liability to pay the sums which this action seeks to recover. It is said that the 
 plaintiffs might afterwards have relief in equity, or might perhaps bring another 
 action when they have transferred the policy to the defendant, but we think that 
 it was intended to admit a plea on equitable grounds only where final justice may 
 be done by the court of law in the pending suit. This could only be by pro- 
 nouncing an equitable decree. But wo have no warrant to pronounce such a 
 decree. »****» Where the judgment if obtained would be substantially 
 reversed by a perpetual injunction in equity, that which would be sufficient ground 
 for the perpetual injunction is admitted as a legal defence, in the same manner as 
 payment after the day which at common law was only ground for equitable relief 
 after a judgment had been obtained for the penalty of the bond, was by the 
 statute of Anne let in as a legal defence, and as by the recent statute to an action 
 against a surety on an instrument under seal, time given to the principal debtor 
 without the consent of the surety is turned into a legal defence, althougii pre- 
 viously it was only ground for equitable relief. But where the ground for uqu'- 
 table relief is not a complete bar to any pr jceedings upon the judgment, and is 
 not if offered by plea a complete bar to the action, we are not furnished with any 
 means of doing justice between the parties. We cannot enter into equities and 
 cross equities ; we should often be without means to determine what are the fit 
 conditions on which relief should be given; no power is conferred upon us to pro- 
 nounce a conditional judgment; no process is provided by which we cculd enforce 
 performance of the condition ; there are no writs of execution against persons or 
 y;oods adapted to such a judgment, and no oue can conjecture what remedy it 
 would give against the lands of the d- ')tor. In short, we think a plea on equi- 
 table grounds is to prevail only when followed by a common law judgment, it 
 will do complete and final justice between the parties. Such appears to have been 
 the view of tliis subject taken by tiio judges of the court of Exchequer, in ^ftnes 
 Iiii(jal Swieties v. Mognay, 10 Ex. 489, where leave was refused to plead such a 
 plea, soinething remaining to be done by the defendant before he could have 
 claimed a perpetual injunction in a court of equit\-. As that case was decided 
 merely on motion without the opportunity of carrying it into a court of error, we 
 should not have considered ourselves bound by it had we disapproved of it ; but 
 we entirely concur in the reasoning on which it is founded. And therefore, with- 
 out deeming it necessary to consider the replication or the rejoinder, on the insuf- 
 licienuy of the plea, we give judgment for tlie plaintiffs:" lb. 28G. 
 
 Third — Court of Common Pleas. Although one of the judges of this court at 
 an early period spoke of the decision of Mines Royal Society v. Maynay, as " a 
 rather narrow construction of the act:" Chilton v. Carrington et al, 16 C. B. 
 20'i, per Crowder, J. Yet subsequent authorities in the court of Common Pleas 
 in effect support that case. The leading authority in the Common Pleas is Wood 
 V. The C>pper Miners' Co. 17 C. B. 561. This was an action for the breach of 
 covenants in a lease. The defendant in effect pleaded as an cquitabl ) defence 
 that the parties had agreed to refer to arbitration the terras on which the lease 
 
 \m 
 
 
. , t 
 
 172 THE COMMON LAW PBOCEDURE ACT. [s. 124. 
 
 the words *' for defence on equitubie gronnds," or words to 
 
 should be cancelled and had bound themselves not to sue upon it. It wua not 
 alleged that any award had been made ; but, on the contrary, it appeared that 
 the arbitrator had been discharged from making an award. There was a demurrer 
 to the plea. And, per Jervia, C. J., " It seems to mo that the plaintiff in this case 
 is entitled to the judgment of the court. Without attempting to defend the form 
 or the precise circumstances under which a court of law will admit an equitable 
 plea to enure as an answer to an action, it is plain that inasmuch as a judgment 
 for the defendants here would bar the action, we cannot hold this to be a good 
 equitable plea, unless it discloses a case in which a court of equity would grant a 
 perpetual unqualified and unconditional injunction. No doubt in this as in all 
 cases, the court will not admit an equitable plea, that would carry the legal 
 defence further than a court of equity would extend its protection to the party, 
 What is the effect of this plea? Mr. Bovill (defendant's counsel) .says it dis- 
 closes an absolute agreement between the parties, upon sufficient consideration lo 
 rescind the contract, and then a reference to Mr. Bros (the arbitrator) to ascer- 
 tain the compensation to be paid by the defendants to the plaintiff therefor. I 
 think, however, it is a reference to Mr. Bros to say upon what terms the contract 
 shall be rescinded. * * In truth the plea amounts to no more than a plea of 
 the pendency of an arbitration under an order of reference empowering (in arbi- 
 trator to say upon what terms the action is to be discontinued. Although it is 
 quite possible that a court of equity * * might interfere to restrain the bring- 
 ing of an action in violation of the compact entered into between the parties, it 
 could only be done upon terms and conditions which we have no power of impos- 
 ing or enforcing." See also Flight v. Orny, 27 L. J. C. P. 13. 
 
 The principles which govern courts of common law in entertaining pleas dis- 
 closing equitable defences under the C. L. I'. Act are it is conceived, fully estab- 
 lished in the foregoing cases. There is no material difference in the views of the 
 three superior courts of common law in England, as expressed in the leading ease 
 of each court in regard to those principles. Nothing now remains than to notice 
 some cases in which these established principles have been applied. 
 
 First — Equitable pleas allowed. It seems to be settled that in general where 
 a party seeks to enforce an agreement in writing, defendant may on equitable 
 grounds show by parol that such agreement was framed in mistake : Vorhy v. 
 Barrett, 28 L. T. Rep. 87, per Creswell, J. The object of the legislature is to 
 enable i-arties to have the benefit cf an equitable answer without going into equity: 
 lb. ; see also Wood v. Dwarris et ul, 11 Ex. 493 ; Perez et al v. Olcaga et al, lb. Biiii. 
 Thus in an action on a covenant binding defendant, a surgeon, not to practice in 
 A. an equitable plea was allowed to the effect that as between defeiidnnt and 
 plaintiff the part of A. in which the defendant practised had always been treated 
 as a part of 13. and that it was not intended to restrain the defendant from prac- 
 tising in the part of B. in question, and that the covenant was framed by mistake; 
 Luce V. hod, 2 Jur. N. S. 573. In an action by the payee against the maker of 
 two proihissory notes, the defendant pleaded by way of equitable defence that 
 the notes were made by him, defendant, whose name was James Ilarridune, liiul 
 by one John Harridane, that defendant made the notes at the request and for the 
 accommodation of John Harridane, to secure a debt due from him to the plaintitt', 
 and that he did so without value or consideration, and that the notes were deli- 
 vered to the plaintiff and received by him from the defendant upon an express 
 agreement made between them that the defendant should be liable thereon as 
 surety only, and that plaintiff at the time the notes were made had notice and 
 knowledge of the same having been so made by him as surely. The pliM then 
 stated that the plaintiff, whilst holder of the notes, without the kuo'vleilge or 
 consent of defendant, for a good and valuable consideration, agreed to give and 
 did give the said John Harradino time for the payment of the notes, and forbore 
 
 i,V. ,% »'' 
 
s, 124.] 
 
 EQUITABLE PLEAS. 
 
 173 
 
 the like effect. 19 Vic. c. 43, s. 287 ; 20 Vic. c. 57, s. 11 ; 
 20 Vic. c. 58, 8. 2. 
 
 to enforce them, and that he cuuld and might, had he not given such time, have 
 obtained payment from the said John Harridane. The plaintiff having demurred 
 to this plea,' it was argued and holden to disclose good equitable grounds of 
 defence: Fooley v.Warradine, 7 El. <fe B. 431. This case overrules several Mler 
 d'leti in Strong v, Foster, 17 C. B. 201, which case unless examined closely appears 
 to bo an authority against the position taken by the court in Pooley v. Harradine. 
 See further Ellhit v. Muson, 26 L. J, Ex. 175 ; Gordon v. Rae, 8 El. & B. 1066 ; 
 IFdto v. ShuWeworlh, 6 II. A N. 235 ; s. c. in Hrror, 7 H. A N. 353 ; Rayncr et al 
 V. Fitsxeif, 28 L. J. Ex. 132; Greenoygh v. McClelland, 2 E. «fe E. 42-1 ; Perley v. 
 Lonci/eial, 17 U. C. Q. B. 279; Thompson v. McDonald, lb. 3()4, 
 
 IJ.'s wife had contracted a debt before marriage. After marriage, B. and his 
 wife borrowed money on B.'s bond to pay off that debt, and then mortgaged to 
 C. lands which B. and his wife held in fee in right of the wife, to raise money to 
 disclmrge tlie bond. On the wife's death, C. as her heir at law became entitled 
 to the equity of redemption, having before by the mortgage acquired the legal 
 estate, In an action by C. against B. on his covenant on the mortgage and for 
 payment of the sum thereby secured, the foregoing facts were held to he a good 
 equitable defence: Gee v. Smart, 8 El. & B. 313. Upon an action brought for 
 use and occupation, a plea that defendant entered upon an agreement (not in 
 writing) for a lease for 42 years, under which no rent was to be paid until cer- 
 tain conditions were performed by plaintiff, which never had been performed, 
 held good : The Trustees of llie Toronto Hospital v. Heward, 8 U. C. C. P. 84. 
 
 St'corid — Equitable pleas disallowed. The legislature never intended that the, 
 coursie of practice of courts of equity should be pleaded and become the subject of 
 investigation at law ; Prothcro v. Phelps, 25 L. J. Ch. 109, /jer Turner, L. J. Action 
 upon an agreement to put a stop to an action formerly pending between plaintiff 
 mid defendant and to release defendant from the covenants contained in a certain 
 lease, assigning breaches of the covenant. The plea, which was in substance that 
 plaintiff had gone into equity to enforce specific performance of the same agree- 
 ment, and had obtained a decree in his favour, and that this decree was a final 
 adjudication between the parties, and that according to the rules and practice of 
 chimeery after such a decree, the defendant would be entitled to relief on cqui- 
 tdble grounds against a judgment in the present action, held bad: Phelps v. Pro- 
 thero d al, 16 C. B. 370. in an action by the trustee of a married woman against a 
 banker for dividends which the latter had paid over to a third party, pursuant to 
 a power of attorney given by plaintiff, it was held an equitable plea that the 
 married woman had obtained an advance of her dividends by means of the power 
 of attorney which she had revoked before defendant had received notice of the 
 revocation of the power, was not allowable: Clarke v. Laurie, 28 L. T. Rep. 125. 
 And, /)«• Pollock, C. B., " It is an established rule now and it is essential to the 
 carrying into effect of the statute whicii gives these equitable pleas, that no equi- 
 table plea shall be permitted except in a case wiiere the plea and the decision 
 and judgment of the court upon it will work out and complete all the equity that 
 belong to the matter to which the plea refers. As for instance, if a person is 
 sued upon a bond or any covenant under seal, who has, by an insti'iiinent not 
 under seal, dispensed with performance and accepted something in lit a of it, and 
 fi> on, there you are permitted to plead now that which at law would have been 
 formerly no defence. But there the judgment works out the whole equity of the 
 matter. That could not be so here. An equitable plea in onswer to the claim of 
 the trustee would not settle the whole matter as between the parties ; there 
 would still be a question whether the trustee would not be liable to the cestui que 
 trnsi, and we have no power of protecting the trustee against such an action. * * 
 We are of opinion that the equitable plea ought not to be allowed in the present 
 
 U yi 
 
 

 il, 
 
 
 Mr 
 
 ^^ 
 
 174 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 124. 
 
 case:" Jb. Pleas of equitable set-off may be allowed ; but if having no natural 
 connexion with the suljject of plaintiff's claim, must be rejected. To an actioa 
 for money payable for freight and porterage for the conveyance of goods, the 
 defendants pleaded as to £47 Os. 6d., an equitable plea that plaintiff was a barge- 
 man and was employed by defendants in that capacity; that in the course of such 
 employment plaintiff agreed to carry on a certain river a large quantity of coal 
 belonging to the defendants in certain barfijes of the plaintiff, and that the said 
 coal was so utterly lost on the said voyage by and through negligence, &c., of 
 the plaintiff, and that the cost price of the coal so lost was <£47 Os. (id., and that 
 defendant claims equitably to set the said sum off against plaiutiff''s deraaad. 
 Held plea bad : Sthnson v. Ball e(. al, 28 L. T. Rep. 32.5. And, per Bramwell, B,, 
 " It is a common opinion that equity deals out a sort of vague justice unfettered 
 by rules — a sort of natural equity ; but that is a mistake ; their rules are in fact 
 as binding as ours. Then the question is whether, according to law as adminis- 
 tered in equity, equity would give unconditional relief. Now, in the case of 
 Beadey et al v. I)' Arcy, 2 Sch. <fe Lef. 403, which has been cited, it was clear that 
 there was an equity, but here there is no natural connexion between tlie claim 
 and the cross-claim, and there is no semblance of authority in defendant's 
 favor." See further as to equitable pleas of set-oft': Stluisonv. HaUetal,lE. 
 & N. 831 ; AUerbiiry ct al v. Jarvie, 2 H. <fe N. 114 ; Mimhidl v. Oakes et al, lb. 
 793; Jackson \. haacs, 3 H. & N. 405; Eikin v. Baker, 31 L. J. C. P. 17'/; 
 Cochrane v. Day, 9 C. B. N. S. 448 ; In re Commercial Bank, L. R. 1 C. P. 538; 
 Watson y. The Mid Wales R. Co. L. R. 2 C. P. 593 ; Wood et al v. Jiojss et al, 8 
 U. C. C. P. 299. 
 
 To an action on a bill of exchange against the acceptor, the court refused leave 
 to plead as an equitable plea that the bill was accepted upon a distinct promise 
 by plaintift' that if the defendant would pay a certain discount the plaintiff would 
 renew from time to time until the defendant was of ability to meet the bill, &c,: 
 Flight v. Gray, 4 Jur. N.S. 13. Where a defendant was under terms to take short 
 notice of trial, and it was proposed to plead certain equitable pleas, setting up a 
 cross claim for unliquidated damages, the court held that the pleas were incon- 
 sistent with the terms and calculated to defeat them, and refused therefore to 
 allow the pleas, leaving the defendant to bring a cross-action : Atterbury v. Janie, 
 29 L. T. Rep. 128. To a declaration in sci. fa. against a shareholder of a com- 
 pany, the defendant pleaded that he was requested by plaintiff and others to 
 become a transferee in the company as the nominee ot A. and B. and for their 
 benefit, and upon the representation of the plaintiff and otheis that he should 
 incur no responsibility on account of such shares; that relying on such represen- 
 tation, he became a transferee of the said shares in the deck ration meutioued as 
 such nominee of A. &, B., and for their benefit and not for his own benefit; 
 that he never had any interest in the said shares or in the said company, except 
 as such nominee ; that he never was to derive or acquire and never did derive or 
 acquire any profit, benefit or advantage, from the said shares ; that the said com- 
 pany and the scheme thereof was entirely abandoned, and no profit was ever 
 acquired by the company ; and that the plaintiff was unjustly and irregularly 
 and contrary to the said representation and in fraud thereof seeking to charge 
 the defendant and to make him responsible and liable as a shareholder. Held a 
 bad plea: Billy. Richards, 2 II. & N. 311. If the plea require taking of an 
 account or other proceeding of that nature, it will be bad as an equitable plea : 
 Collis V. Prcndergast, 7 Ir. C. L. R. 542. 
 
 The plea to be good must be such that the judgment of the court upon it will 
 work out and complete all the equity that belongs to the matter to which tlie 
 plea refers : Clarke v. Laurie, 26 X. J. Ex. 36 ; Bill v. Richards, 6 W. R. 660 ; Gee 
 v. Smart, 8 El. <fe B. 313 ; Scott v. Littledale et al, 27 L. J. Q. B. 201 ; Collins v. Cave, 
 27 L. J. Ex. 146 ; Griggs v. Firley, 6 U. C. L. J, 61 ; Boyes v. McGregor, 8 U. C, 
 C. P. 244. If however an equitable plea be allowed by a judge, the court will 
 
s. 124.] 
 
 EQUITABLE PLEAS. 
 
 175 
 
 not strike it out merely because the question is doubtful whether it discloses the 
 rjcht to absolute and uiiconditional relief in equity : Elliott v. Munon, 26 L. J. Ex. 
 ifs. AVhere defendant had leave to plead two pleas on equitable grounds, the 
 court on motion varied the order by allowing defendant to plead the first of the 
 pleas, striking out on equitable grounds, and to plead another plea in the same 
 terms on equitable grounds, oniilting an allegation as to acceptance in satisfaction : 
 Jonamiohn v. Ransome et al, 3 C.B. N.S. 11\). A defendant does not lose his defence at 
 law by mistakingly pleading his plea on equitable grounds : Thome v. Tilbury et al, 
 27 L. J. Ex. 407. A plea so pleaded may be sustained as a plea at law, if it disclose 
 a good defence : Hyde v. Graham, 1 H. «& C. 593 ; see further Wakley v. Froggdtt, 
 2 H. <fe C. 669. Where an action is brought for rent, a plea that the premises were 
 burnt do> n will not be allowed : Lofft et al v. Dennis, 28 L. J. Q. B. 168. A person 
 who gives another a bill payable at a future day cannot in an action against hini 
 on the bill set up a want of consideration as the defence : Balfour et al v. The Official 
 Manager of the Sea, Fire, Life Assur. Co. 27 L. J. Ex. 17. Misrepresentation, unless 
 frniidulent, is no defence either at law or in equity : Gormch v. Cree et al, 8 C. B, 
 N.S. 574. To an action of debt, e plea by defendant of an assignment in bankruptcy 
 is no answer either on legal or equitable grounds : see The European Central R. Co. 
 V. WeMall, 6 B. <fe S. 970 ; Ei/re et al v. Archer, 33 L. J. C. P. 299 ; Jones\. Morris, 
 34 L.J. Q.B. 90 ; The Ipstone Park Iron Ore Co. v. Pattimon, 9 L.T. N.S. 800 ; Wright 
 V. Jelhj, 19 L. T. N.S. 384 ; Baldwin v. Peterman, 16 U. C. C. P. 310. Declaration 
 on a covenant by defendant as surety for the payment of rent by one B. Plea on 
 equitable grounds that defendant executed on the understanding and representa- 
 tion that Y. K. and E. should also execute, and that he should be responsible 
 with them and not solely, and that it was represented to him by B. and by the 
 said K. th:it immediately after defendant's execution the other three would 
 execute. It was then alleged that they never did execute, and that before any 
 breach and with due diligence he gave notice to the plaintiffs of the premises, and 
 tiiat he claimed to have been released by such non-execution. Held plea bad, for 
 there was nothing to connect the plaintiffs with the representations on which 
 defendant executed, and they might have leased to B. on the understanding only 
 that defendant should be surety : The Corporation of the County of Huron v. Arm- 
 slrourj, 27 U. C. Q. B. 633. The court seemed to think that the defence, if any, 
 might have been given in evidence under non est factum, on the ground tliat in 
 substance the defendant executed the deed conditionally, and that the condition 
 was not performed : lb. 
 
 Third — Other matters. It has been said that a defendant who in an action at 
 law pleads a subject matter as an equitable defence is not necessarily precluded 
 from applying upon that subject matter to a court of equity for an injunction : see 
 P/ie/p v. Frothero et al, 16 C. B. 370 ; 8. c. 25 L. J. Ch. 105 ; Collins v. Cave, 27 L. J. 
 Ex. 146; Fearsev. Robins, 26 L. J. Ex. 183. And though the plea be denmrred 
 to at law and the demurrer remain undecided, a court of equity n)ay still interfere : 
 Evans v. Bremridge, 27 L. T. Rep. 8, But a party who, having unsuccessfully 
 defended an action at law, afterwards resorts to equity upon the same ground of 
 defence and there succeeds, shall be entitled only to the costs of one proceeding : 
 Walson V. Alcock, 4 DeG. M. & G. 247. Where to an action to recover damages for 
 a fraudulent representation, the defendant asked leave to plead for a defence on 
 equitable grounds that the plaintiff had filed a bill in Chancery for the very same 
 alleged grievances and causes of action, which court gave judgment in lavor of 
 tiie defendant, the decision in Chancery was held to be no estoppel ; Collins v. 
 Cuic, 4 Jur. N.S. 31. It is now held that if a defendant exercise the option of 
 pleading at law and fail, ho cannot afterwards obtain relief in equity : Gompertz 
 V. PooUy, 7 W. 11. 275; Terrell v. Higgs, 1 DeG. & J. 388; Wdd v. Hillas, 28 L.J. 
 Ch. 170 ; Cooper v. Evans, L. 11. 4 Eq. 45 ; Kingsford v. Swin/ord, 28 L.J. Ch. 413. 
 \Uierp (Jefeudant at law has filed abill in equity, he is not allowed at law to plead 
 nn equitable defence on the same grounds : Scfihimbergcr v. Lister, 2 £. A E, 855, 
 
 h' 
 
 ■^'\: 
 
 v.# 
 
 B-t 
 

 Elf ^rS^'* 
 
 ! ■:! SI 
 
 i I 
 
 176 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 125. 
 
 Defence 12tS. C») Anv such matter which, had it arisen before or 
 
 oy way 01 K ^ •> 
 
 °v^'m during the time for pleading, would have been an answer to 
 
 In order that any doubts existing aa to the effect of equitable defences pleaded in 
 suits at law may be removed, it is now by statute declared that " if the defendant 
 in any suit at law shall plead any equitable defence, ' and judgment shall be 
 given ngainsit such defendant upon such equitable plea, such judgment shall be 
 pleadable as a good bar and estoppel against any bill filed by such defendant in 
 equity against the plaintiff or representiiLive of such plaintiff at law in respect to 
 the same subject matter which has been brought into judgment by such equitable 
 defence at law." 29 & 30 Vic. cap. 42, s. 3. And it is further provided that tlie 
 act is not to be construed as declaring that such judgment at law on an equitable 
 defence has not been heretofore a good bar to any suit in equity on the same sub- 
 ject matter: Jh, In one case the court when allowing an equitable plea, thinkinn; 
 that it would raise an issue which could not be satisfactorily disposed of by a 
 jurj', gave to plaintiff the option of having the trial in banc : L'/ce v. Izod, 1 II. dt 
 N. 245. When it was open to courts of law and equity to adjudicate upon the 
 same subject, under the operation of this section, there was danger of conHict 
 of decisions. Thus, the payee of two promissory notes being about to sue the 
 maker, the brother of the maker agreed to pay £2(K) t'^ the i"i3'ee in trim 
 for E, or £6 10s. per quarter so long as the £2oO simll be unpaid, so that the 
 notes should be suspended and rendered inoperative so long as the brother con- 
 tinued to pay the £6 10s. per quarter to the payee ; and on payment of the £'.iiio 
 nil claim on the notes to cease, and the same to be given up. The brother not 
 having paid the £6 lOs. to the payee for two quarters, but having paid these sums 
 to E, the cestui gue iriisi (as the latter admitted) the payee brought his action 
 upon the notes against the maker. Held in Error reversing ihe judgment of the 
 court of Queen's Bench, that the agreement could not be pleaded in bar to the 
 action upon the nc tes, but might be the subject of a cross action, held in Equity 
 that the agreement must be construed as a contract by the brother, to provide 
 for E. the annuity of £25, or the gross sum of £2()0 as a substitute for the two 
 notes, and by the payee that the two notes should thenceforth be only a security 
 for the performance of such contract, and not an agreement under which the 
 original right of the payee would revive on any failure of the quarterly payments 
 by the brother. Held also that the brother was entitled to the specific perform- 
 ance of the agreement in equity not on the ground of the circuity of cross actions 
 which the rule of law occasioned, but on the ground that the court by modifying 
 its decree could give to all parties the benefit of the agreement, whilst a court of 
 law, being unable so to modify its judgment, could not give to one party the 
 benefit of the agreement, without depriving another party altogether of such 
 benefit : Beech v. Ford, 1 Hare, 208. Whce a defendant pleads an equitable plea 
 alone, he may possibly have a right to do so without the leave of the court: 
 Atterbury v. Jarvie, 26 L. J. Ex. 182, per Channell, B., contra, per Braniwell, B., 
 in Hunter v. Gibbons, 1 H. & N. 459. But where the application to plead such 
 plea is an appeal from the decision of a judge at chambers on a summons to pkaJ 
 several matters, and is in substance an application to be allowed to add pleas, tiie 
 allowance of such plea is in the discretion of the court to be exercised with refe- 
 rence to all the circumstances under vhich the application is made : Atterhnry v. 
 Jarvie, 26 L. J, Ex. 178. Where an action is brouj^ht for breach of covenant and 
 the defendant at law has only an equitable defence, he is not compelled by this 
 act to defend at law, but may as before the act seek relief in a court of equity: 
 Kingsford v. Smnford, 7 W, R. 216. An equitable plea pleaded at law can only 
 be proved by such witnesses as a court of law will receive : Ferley v. Lonei/ et al, 
 18 U. C. Q. B. 42?. 
 
 (s) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 84. Founded upon the 
 second report of the Common Law Commissioners, section 00. 
 
125.] 
 
 AUDITA QUERELA. 
 
 177 
 
 the action by way of plea, (<) may, if it arises after the lapse 
 of the period during which it could have been pleaded, be set 
 up by way oi audit d quereld. (u) 19 Vic. c. 43, s. 288. 
 
 (I) Any nich matter, d'c., i. e. matter entitling defendant to relief on equitable 
 gruunds : as to which see notes to section 124. 
 
 [u) Auditd querela is a remedial writ invented to prevent a defect of justice ia 
 cases where a party having a good defence has no opportunity of makinj» it by 
 the ordinary process of law. Thus it lies for a person who is either in execution 
 or in danger of being so, upon a judgment or recognizance when he han matter 
 to show that the execution if issued ought not to nave issued, or if not issued 
 glioiild not issue: 2 Wms. Sound. 147 (1). It lies by an infant taken in execu- 
 tion: Loj/dv. Ogle, Garth. 278. On a judgment against bail under age: Marh- 
 ham V. Turner, Yelv. 165. By an infant, to avoid a recognizance : Randall v. 
 Wall, Yelv. 88 ; 1 And. 25 ; 2'And. 158. B-it it must be brought by him withia 
 a£;e: Anon. 1 And. 228. So for one in execution at the suit of an administrator 
 durante minori (elate, when the infant comes to age : Anon. 3 Leon. 278. Where 
 an administrator has a verdict, and his letters are revoked: Ket v. Life, Yelv. 1 25 ; 
 
 1 Kcb. 8C3 ; 2 Keb. 668 ; Comb. 214. It lies for bail, if the judgment against tho 
 principal be reversed : Le Greece Sr. Apsley v. Geve, Palm. 302 ; Yelv, 69 ; Jenk. 
 Cent. 319. After judgment in K. B., and before execution awarded, the defen- 
 dant brovight error in exchequer chamber, and died pending the writ; the record 
 wa3 remanded ^s if he had been non-suited ; upon which a capias issued against 
 the defendant, to which non est inv. was returned ; tlien two tci. fa.'s against the 
 ball into Middlesex, to which non est inv. was returned, and upon this a capias ad 
 talhfaciendiim against the bail, who, being taken in execution, was held entitled to 
 auditd quereM ; but otherwise, if sci. feci had been returned : Hobs v. Tadcastle, 
 Moore, 432. It lies by one of the bail, where the other was taken by a capias, and 
 discharged by the then plaintiff: Evans v. Arnold, 3 Leon. 260. So it lies on a 
 render of the principal, but if the bail piece be discharged the sci, fa. is void : 
 
 2 Keb. 475, pi. 1 . For relief in case of an irregular statute-merchant, <tc. : 
 2 Saund. 696, 148; 1 Leon. 228. By terre-tenant against conusee who had laud 
 in execution: Hide's case, 1 And. 133. The feoflfee of the conusor of a statute- 
 merchant may have audita querela, against the conusee taking out execution, 
 where the mayor before whom it was acknowledged has not authority to take it : 
 Anon. 1 Dy. 25, pi. 27. Auditd quereld quare similiter extendi won debet, or auare 
 restitui non debet, both lie by him whose land is extended alone, where other lands 
 extendable are omitted ; and if one terre-tenant make default, whereby execution 
 is awarded, still he shall have audita quereld for contribution : Verey v. t'arcw, 
 Moore, 535. A defeasance is good, that if the statute be extended upon land in a 
 particniar couuty, it shall be void ; and auditd quereld lies, though the statute 
 want one of the seals: Trot v. Spurling, Moore, 811. For tenant by elegit, against 
 another who has a prior charge, for omitting part of the land chargeable : Beans 
 V. llifnde, 2 And. 170; Yelv. 12. To avoid execution upon a recognizance, 
 for tiiat the debt is attached : IVallpool v. King, 1 Leon. 297. On tender of 
 money on a recognizance : Hughes v. Phillips, Yelv. 38. So, if the sheriff deli- 
 vers lip a term under an elegit, after a tender by the defendant of the money 
 ajipraifed by inquisition : 2 Saund. 68 d. To force the filing of an elegit after a 
 capias : 2 Keb. 1 53, pi. 29. In case of a wrong delivery by the sheriff of land 
 under an elegit : 2 Saund. 68 g. The conusor of a statute enfeoflfs A. B. and C. 
 eererally of his lands; execution is sued against A. alone; in auditd quereld to 
 bare fi. contributory, he cannot plead to the scire facias that C. has been likewise 
 omitted, but must sue his auditd querela: Ajion. 3 Dy. 332 pi. 23. It lies to dis- 
 charge the land, if the conusor (taken by capias) be let at large by the conusee's 
 consent: Linacer's case, 1 Leon. 230, 231; 2 Leon. 96. Upon a voluntary escape 
 
 12 
 
 
 
 M 
 
 -M 
 
 
 AiS 
 
 ' ni 
 

 178 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 125. 
 
 fc:- 
 
 
 by the sheriff: Philfipa v. 5ton«, 2 Leon. 119. If two joint and severol obligonl 
 arc outlawed, and one of them, being taken on the capias utlagatum, is sufll-ri'dtJ 
 escape, and the party recover the original debt in an action of debt on the escape,! 
 the other obligor (being taken) may bring an audita querela, but he must shoil 
 the time when and the place where satisfaction was made: Afford v. TaMlA 
 
 1 Mod. 170. Auditfl querela lies against a sheriff who arrests one in execution,! 
 and, without returning the writ, suffers him to escape, and then arrests him agiiil 
 upon an oUm capias: Moore, 67, pi. 163. If two joint and several obligors btl 
 sued severally, aud once a satisfaction be had against one, or against the slierill 
 upon the escape of one, or if satisfaction be had against a joint possessor, tbt | 
 other may have an auditd querela ; Foster v. Jackson, Hob. 68 ; Al/ord v. Tatndl} 
 
 2 Mod. 49. He who has a release after verdict, and before judgment, cannot 
 plead It, but must help himself by audita querela : Hob. 162. One feoffee of thi 
 conusor (if his land only is put in execution) shall have it against all the othn 
 feoffees, and against the conusor also (if he has reserved part in his hands),!) 
 make contribution ; but the conusor shall not have it against any of the feoffeo 
 to make them contributory, if the part left in his hands is put in execution for thi 
 whole : Ross v. Pope, Plow. 72. If two are bound jointly and severally, and there 
 are several judgments against them in several courts, and a capias against one, 
 who is taken, and afterwards an elegit against the other, he who was taken upon 
 the cnpias can have audita querela : Cowley y. Lydiat, 1 Ro. 8, 9. If there be 
 judgment against A. in C. P., and damages against him for a trespass, and A, 
 pays the whole, and afterwards execution is issued against B. on a jiiclgnicDi 
 obi "ned against B. and C. for the same trespass, both may join in an audita que- 
 rela, though C. is not yet actually aggrieved: Corbet v. Barnes, W. Jo. 378, 379; 
 Cro. Car. 1043. He that is once so discharged shall never be taken again: Anm. 
 Hob. 2. If a recover in trespass against B. (a soldier) for taking his property by 
 compulsion of his comrides, und take out execution thereon, and then a statute 
 pardon all acts of hostility, and discharge the offenders from all actions and 
 executions on that account, B. may, by audita querela, be relieved from the ju(!;- 
 ment and execution ; ihnso7i. v. Jd!e, 2 Mod. 37. It lies in the case of a person 
 (convicted under the iribery act) procuring the conviction of another person 
 before execution against himself: 2 Saund. 148 bed. On an exigent after judg- 
 ment, the defendant cannot appear gratis, and plead a release from all executions, 
 but must bring audita querela ; otherwise, if before judgment: Anon. 3 Dy, 285. 
 pi. 41. Where after judgment the defendant would be received on a matter of 
 fact, which does not appear in any of the proceedings, the remedy is by audita 
 querela, and not by writ of error: Zamptony. Collingtiiood, Holt. 27 1 ; s. c. Comb. 
 325 ; Peters v. White, 2 Show. 238. So it lies after a return of two nihils to a wi. 
 fa., and execution awarded : 2 Saund. Rep. 72 v. It lies upon arbitration made 
 after verdict, and before judgment: Morsten v. Morrice, 1 Ro. 384. Audittl que- 
 rela must be brought, and not an action on the case, where the plaintiff takes 
 the defendant, and afterwards re-takes him in execution within the year, for the 
 same debt; if it had been after the year, then the execution had been erroneous, 
 and he must have brought a writ of error : Baugh v. Killingworth. 4 Mod. U, 
 An audita querelfi, cannot be brought before final judgment entered : Lamphm 
 Mereday. 1 Mod. Ill ; 3 Keb. 291, pi. 14. But if it be brought after the day io 
 bano, and the judgment be not entered up, the party shall be ordered to enter it 
 as of that day, to prevent the plea of nul tiel record: 1 Mod. 111. A recusant, 
 after judgment on a qui tarn action, on the statute 23 Eliz. cap. 1, cannot have an 
 audita querela to prevent execution, ou a certificate of conformity : Peters q. I. t. 
 White, 2 Show. 240, It cannot be had by one of several terre-tenants, if execu- 
 tion be had on a sci. fa. igainst him alone, for he ought to have pleaded there 
 were others : 2 Saund. 9 a- It is unnecessary, where the escape of the principal 
 was by consent, but the bail may plead it : 2 Keb. 567, pi. 73. So also of pay- 
 ment: lb. 677, pi. 100. If one of two obligors be sued to outlawry, and a.tcr- 
 
IJo.] 
 
 AUDITA QUERELA. 
 
 179 
 
 narcU judgment and execution is had against tlie otlier obligor, the outlaw can- 
 not be relieved by audita querela : Jligaen v. Whitchurch, 1 Mod. 224. It does 
 ot lie where there is or has been any other remedy at law : 2 Saund. 148 a; 
 .. Riivra. 89. And sometimes it does not lie, although there is no other remedy; 
 Young V. Collet, T. Raym. 89. This writ lies not against the king : Ford v. Mead, 
 oy. Iit5 : Hfx v. Lammat, Comb. 326, 398. No one can have it but the party 
 rieved; 2 Saund. 148 a. If two joint and several obligors be sued jointly, and 
 oth taken in execution, the death or escape of one will not discharire the other : 
 oMferv. Jacknon, Hob. 68; Blumfield\. U»ewich, 6 Co. 80 b. It does not lie 
 'here the matter alleged does not discharge the party : 2 Saund. 148 a. If a 
 mmiedeat be granted to an audita querela, upon the process of vetiire facias, 
 )efore bail found, it is regular : Fetera q. t. v. White, 2 Show. 239. It is unncces- 
 arv, where execution is sued before the day on a recognizance ; but it may be 
 iuperseded by showing the defeasance to the chancellor : 1 Keb. 346, pi. 4. An 
 niuittance in these words, "received £10 in part payment of a greoter sum, 
 herein the defendant was condemned by a judgment given by justices at nisi 
 <r'm" should the plaintiff sue out execution for the whole, is not a good release 
 I) found nn audita quercld : Anon. 1 Dy. 60, pi. 6. It does not lie upon a release 
 ade before verdict, if defendant had time to plead it; but otherwise where it is 
 ftde after verdict : Salkill y. Lord Howard, 2Ro.\2%. It does not lie in chan- 
 try upon a judgment in another court : Mostyn v. Pierce, Moore, 860 ; 2 Show. 239. 
 t iias been refused where the applicant was a stranger to the judgment, having 
 otlier privity than that he was alienee of the land which was taken in execu- 
 ion, and had acquired his interest after execution had issued : Beard v. Ketchum, 
 
 U. C. Q.B. 523. Though the point is involved in some doubt, it seems to be a writ 
 f common right — ex debito justitite : Gilet etal v. Nathan etal, 'Marsh. 226; Giles v. 
 'lutt et al, 1 Ex. 69 ; and is in the nature of a bill in equity to be relieved against 
 le oppression of plaintiff: 3 Blac. Com, 406. And yet a defendant is not either by 
 he existence of the remedy or by having unsuccessfully resorted to it precluded 
 Tom bringing his original bill in equity for relief: Williams \.Foberts,S llare,316. 
 "he writ, however, is not a difficult proceeding: Baker et al v. Ridgway, 2 Bing. 48, 
 I'r Burrough, J. Though ex debito justitia, it cannot issue without an order in ojien 
 uiirt: Dearie v. Ker, 7 D. «fe L. 23 1 ; Beard v. Ketchum, 8 U. C. Q.B. 523 ; Troup v. 
 
 kardo et al, 8 L. T. N. S. "767. It may be mentioned that Eng. Rule 79 of H. T. 
 853, ordering that " no writ of audita querela shall be allowed unless by rule of 
 :ourt or order of a judge," is not adopted among our New Rules of T. T. 1 85t5. 
 "he writ when issued in the name of the Queen, directed to the court in which the 
 riginal proceedings have been had, sets out the record down to judgment, then 
 itafoa the subsequent matter, and enjoins the court to call the parties before it to 
 
 use justice to be done: see form in Turner v. Davies, 2 Wms, Saund. 137 « ; also 
 firdPorchester v. Petrie, 3 Doug. 261. If the writ be founded on record, or the party 
 e in custody, the process upon it, when allowed, is a scire faciiis. But if the audita 
 uerela be grounded on a matter of fact, or the party be not in custod}', but only 
 
 roiight quia timet, the process on the auditd querela is a venire facias, and un 
 lefault tlierelo a distringas ad infinitum : Clerk v. Moor, 1 Salk. 92. The process 
 issued upon the audita querela should be personally served : Williams et al v. 
 yotec/j, 1 L. M. & P. 381 ; and the party served warned to appear. If he appear. 
 
 e party who sued out the process declares. In the declaration the whole writ of 
 mditi querela is recited in the same manner as in a declaration on a scire facias : 
 
 Seilou's Pr. II. 266 ; thereupon the party made defendant pleads: Giles v. IltM ct 
 
 . 1 Ex. 701 ; and the parties proceed to issue. It is now held that security for 
 
 its may be ordered as in an ordinary action : Holmes v. Femberlon, 1 El. & El 
 
 M. The indulgence shown by the courts in modern times by way of motion 
 in a great measure superseded procedure by audita querela : Su'ton v. Bishop, 
 
 Burr. 2287 ; Wicket et al v. Cremer, 1 Rayd. 439 ; Humphreys v. Knigld, 6 Bing. 
 
 i2; I'kiin v. Henshall et a/, 10 Bing. 24 ; Barrow v. PoiU, 1 B. A Ad. 630 ; Ouch- 
 
180 
 
 THE COMMON LAW PROCEDUUE ACT. 
 
 [s 126, 
 
 
 Reiiihiiitirin ISO. (v) The PlaintiflF may reply, in answer to any pU 
 
 on equitable , ■, . i.i'i ■/ r • 
 
 grouii.id. of the Defendant, (ic) facts which avoid such plea upon of|ai- 
 table grounds, (x) but such replication must begin with the 
 
 ttr'ouii r. Oibiton, 6 Scott, N. R. 677 ; Sharp v. D'Almaine, 8 Dowl. 664 ; Titrntry. 
 Fiihnin, 2 Ex. 513. But relief upon motion is only granted where the right to 
 relief is clear and beyond all question : Hewea t. ifoU, 6 Taunt. 329 ; Baker tt li 
 V. liidgway, 2 Bing. 41 ; Hatuonv. Maket/elal, 4 Bing. 493; Lintery. Afundell,\^, 
 A I'. 427 ; Si/mon» v. Blake, 2 C. M. dt R. 416 ; Beard v. Ketchum, 8 U. C. Q B, 
 C24 ; Schojield et al v. Bull tt al, 3 U. C. L. J. 204. 
 
 (i») Taken from Eng. Stat, 17 4 18 Vic. cap. 125, s. 85. 
 
 («j) It is enacted that the plaintiff may reply in answer " to any plea of the 
 defendant, facts which avoid such plea upon equitable grounds," Ac. Tills sec. 
 tion is sufficiently comprehensive to admit an equitable replication either to i 
 legal or an equilthle plea: Wood v. The Copper Miners' Co. 17 C. B. 687. It would 
 Boeni that where the plea is legal, the replication may be considered either upon 
 legal or equitable grounds, though stated to be upon equitable grounds; but jnly 
 upon equitable grounds when the plea is an equitable plea : Vorley v, Borri, 
 1 C B. N. S. 234, per Willes, J. A plea or replication on equitable grouniii 
 must be founded on a matter depending upon the principles of equity, and 
 not upon the mere practice of courts of equity : Prothero v. Phelpg, 25 L. J, 
 (;h. KJ5. An equitable replication setting up matter inconsistent with the legil 
 ri^^ht asserted in the declaration, is bad as a departure : Gulliver v. Gullitir 
 ei al, 1 II. Ji N. 174; Hunter v. Oibbons, lb. 469; Reia et al v. The ScottkhE<i. 
 Life Aumi: Co. 2 H. <fe N. 19 ; Schlumberger v. Lister, 2 E. 4 E. 866 ; Jacok v. Ik 
 Eqidhibh Jnsur. Co. 17 U. C. Q. B. 35 ; s. c. 18 U, C. Q. B. 14, So if there be In 
 the equitable replication any matter inconsistent with the declaration : JTitTlmii { 
 L-on Works «fc Shipbuilding Co. v. The Royal Mail Steam Packet Co. 13 C. B. N.3, 
 358. So if in an action of contract the replication set up in answer to a plea of dis- 
 charge or excuse, a substantive 'anse of action in tort : Be Roo et al v. Foster, 12 C. 
 B. N.S. 272 ; Bartlett v. Wells, 1 B. & S. 836. Contra where the replication, while 
 consistent with the declaration, merely shows that it is inequitable for the defen- 
 dant to set up the defence pleaded : Lyall et al v. Edwards et al, 6 H. «fe N. 837 ; Slop I 
 V, Cotlrell, 6 E, & B, 497 ; De Pothonier v. De Mattos, E. B, A E. 461 ; Wilson y.\ 
 Gabriel et al, 4 B. A S. 243 ; WaUon v. The Mid Wales R. Co. L. R, 2 C. P. 6n;Tk\ 
 National Savings Bank Association v. Travail, L. R. 2 C. P. 666 ; Whitehouses. Rouli, | 
 20 U. C. Q. B. 66, 78 ; Smith v. The Provincial Insurance Co. 18 U, C. C. P. 223; I 
 Smith V. The Royal Insurance Co. 27 U. C. Q.B. 64. An equitable plea makes the! 
 subsequent pleadings equitable, although not so pleaded: Savin y.HoylahKX 
 Co. L. R. 1 Ex. 9. But it does not follow that an equitable replication will !« I 
 
 food ot law merely because if pleaded as an answer to a bill in equity it wouldj 
 e a good answer : Lewis et al v. Manning, 2 L. J. N. S. 247. The right given! 
 to suitors to reply equitable matters does not give suitors the right to set ttl 
 nought the well understood common law rules of pleading necessary, with a Tietj 
 to the elimination of particular issues of fact or law : lb. ■ 
 
 (x) A court of common law having no power to enforce anything which ( 
 npon a condition (see note r to section 124), an equitable replication must disj 
 close facts which in equity would entitle plaintiff to unconditional relief: Tcdtf 
 al V Johnson, 1 1 Ex. 840. Declaration on a guarantee by defendant for payn 
 of goods supplied by the plaintiffs to one A. Plea that after A. became indebtt 
 to the plaintiffs, he being also indebted to other persons by an indenture betnei 
 A. of the first part, C. and D. (one of the plaintiffs) trustees for themselrea ani 
 the rest of the creditors of the second part, and the several other persons wbos' 
 
8. 120.] 
 
 EQUITABLE HEl'LIOATIONS. 
 
 181 
 
 words "for replication on equitublo grounds," or words to tho 
 like effect. 19 Vic. c 48, s. 280. 
 
 names nnd scnls were thereunto subscribed nncl set (boing creditors of A.) of tlio 
 third purt; nfter reciting that A. wns indui)ted to tho parties tlieroto of tlie 
 second and third pnrta in the several sums set oppuolte to their nniiies in *'io 
 gclu'diile tlierennder written, whlH» lie was unable to pay in full, it was witnessed 
 thiit A. assigned ail his estate and effects to the said trustees upon trust to pay 
 rntablv nnd without preference to themselves and their partners and tho parties 
 thereto of the third part, the sums set opposite their names In tho schedule ; and 
 in coiisidcrntion of the assignment tljo several creditors, parties thereto of i!io 
 eccond and third parts, released A. from all debts which they or their partn'.-rs 
 iiii'iit iiftvo against him up to the date thereof. Ileplication on equitable grounds 
 that D. executed the agreement in his charocter of trustee and not in his charneter 
 of creditor, r.nd that ho did so merely for tho purpose of declaring tiio trusts of 
 tlie deed, and not with ony intention of releasing tho debt ; that ho did not sign 
 nor seal the scliedule, nor was the debt of tho plaintiffs contained therein, and 
 thiit if tiie deed operated in law as a release it was executed by mistake and in 
 i;;nornncc that such would bo its legol effect. Held that the facts diselos' d by 
 tlie replication did not afford any answer to the plea on equitable grounds : Teeae 
 (lal V. Johiunn, 11 Ex. 840. The principles jroverning the allowance or disallow- 
 nncc of equitable pleas must, it is monifest, in many respects govern the allow- 
 nnce I. r disallowance of equitable replications: see note r to section 124. When- 
 ever the Statute of Limitations is a good answer to a declaration and is pleaded, 
 if..oiild appear that in general it cannot be avoided in a court of law by an 
 equitable replication. Thus, action against the executors of a deceased for work, 
 liil)()r, and materials, <fec. Plea of the Statute of Limitations. Replication on 
 equitable grounds that tho testator by his will appointed defendants his execu- 
 tors, and amongst other things devised certain premises to them to sell, Ac, that 
 said testator also bequeathed to them tho residue of his personal estate upon trust 
 to call in and convert it into money, Ac., and that thoy should from tho money 
 so to arise from the real and personal estate pay testator's debts, funeral expenses, 
 and legacies bequeathed, and hold the residue in trust for plaintift and his other 
 children in equal shares. Averment of sufficiency to pay same, etc. Held repliea- 
 liou ba I : Gulliver v. Gulliver et at, 1 II A N. 174. So in an action for breaking 
 plaintiffs close and converting his goods, a replication to a plea of the Statute 
 of Limitations that tho cause of action wos fraudulently concealed from plaintiff 
 until witiiin six years before action was disallowed : Hunter v. Gibbons, 1 H. & 
 .\'. 4.V.t. In Gulliver v. Gulliver et al, besides the plea of the Statute of J^imi- 
 tatiuns there was as to £65 paid, Ac , a plea of set off, to which plaintiff replied 
 on equitable grounds that the testator by his last will devised and bequeathed 
 certain real and personal estate to plaintiff, his son, and other children, and by 
 said will declared the same should bo deemed to be advancements, and that 
 the children should not be required to account for tho same ; that defendants' 
 set otf were tho same monej's and effects so given as such advancements, and 
 that defendants ought not therefore to be allowad to set off, Ac. Held also bad. 
 Where defendant relies upon an eqiUtablo ground of defence, it is open to 
 plaintiff in his replication to show a better equity : Sloptr v. Cottereil, 6 1'^ A B. 
 4'''7, Thus, action for money had and received. Plea on equitable grounds that 
 the money was bequeathed to tho sole and separate use of tho plaintiff, and 
 W3 paid to the defendant by the executors upon her separate receipt, and that 
 «he in her lifetime disposed of and assigned tho fund upon trusts ir which the 
 plaintiff took no interest, and that the defendant held the money upon inose trusts. 
 Replication upon equitable grounds, alleging a prior assignment by the wife to 
 the husband before the receipt of the money by the defendant, and that the defen- 
 liant received the money merely as agent of the wife in order to get in the money 
 
 'Il.i 
 
 t% 
 
 

 182 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 126. 
 
 i - '.V. 
 
 
 from the executors ai tlie money of the plaintiff. //«/</ Bufficient : lb. In thij 
 cnfie tlio court was of opinion tl)at the legal ns well as equitable right to the 
 money was in the plaintiff. Had there been only an equitable right SDme tiitii. 
 culty niigtit have been experienced owing to plaintiff in nis replication settineup 
 n pure equitable claim to money which in hiH declaration he claimed upon lt'|;al 
 grounds, and thus lay the replication open to objection upon the ground of depar 
 ture. Whenever in a case there is a conflict of equities, the principles mentionoii 
 in a recent decision of Kindersley, V. C, may bo consulted with advantage. The 
 question raised was whether the equitable interest of a vendor's lien for unpaid 
 purchase money should be preferred to the equitable interest of an equitable 
 mortgagee. Per cur. " The rule of the court of equity for determining the prefe- 
 rence as between persons having adverse equitable interests is not always qui 
 potior e»t tempore potior jure ; that is not only not universally true as between 
 persons having only equitable interests, but it is not so even where the equitable 
 interests are precisely the same in nature, and in that respect perfectly equal. 
 Nor is it always true of persons having equitable interests, if their equities are 
 equal ; for it is impossible that two persons should have equal equities, except 
 where a court of equity would altogether refuse to lend its assistance to one side 
 or the other ; and if the court will interfere to enforce the right of one against 
 the other on any ground, as for priority in time, how can their equities be equal? 
 The rule seems to be this as between persons Itaving only equitable interests, if 
 their equities are in all other respects equal, priority of time gives the better 
 equity. In a contest between persons having equitable interests, priority of time 
 is the ground of interference last resorted to. That is, a court will not resort to 
 it until it finds that there is no other sufficient ground of preference between 
 them. In examining into the relative merits or equities of the two parties, the 
 points to which the court must direct its attention are these — the nature and con 
 aition of their respective equitable interests — the circumstances and manner of 
 their requisition, and the whole conduct of eoch party in respect thereto. In this 
 case the two equitable interests both arise out of the forbearance of money. The 
 vendor's lien is a right created by a rule of equity without special contract, the 
 right of the equitable mortgagee is created by special contract ; but this does not 
 constitute any suflicient ground of preference, though if it makes any difference it 
 is in favour of the mortgagee. The mortgagee has also possession of tlie title 
 deeds, and there is authority for holding, that as between two persons where 
 equitable interests are of precisely the same nature and quality, and in that res- 
 pect equal, the possession of the deeds gives the better equity. And as regards 
 the conduct of the parties, everything appears in favour of the equitable mort- 
 gagee ; he was guilty of no negligence, and was encouraged by the vendors to 
 rely on the purchaser's title, and assured by their acts that the mortgagor, so far 
 as they were concerned, had an absolute title at law and equity :" Anon. Finl. 
 C. L. P. A. p. 460. In another case it was held that a legal mortgagee was not 
 to be postponed to a prior equitable raortgogee on the ground of not having got 
 the title deeds, unless there were fraud on the part of the former, and that neither 
 negligence nor fraud could be imputed to him when he had made bona fide enqui- 
 ries and got reasonable answers. Secux, if he had made no inquiry : IJewHti. 
 Loosemore, 21 L. J. Ch. 69. If a plaintiff sue upon a written executed contract, 
 to which defendant pleads inequitable matter as a defence, and to which there is j 
 a good equitable answer, courts of common law may admit the answc.*, altliough , 
 a court of equity might be precluded by its rules from entertaining sucli an 
 answer until the contract should be reformed : Wood v. Dwarrts et al, 1 1 Ex. 493. 
 Thus, to a declaration on a policy of insurance defendant pleaded that the poH'.V 
 was made upon the terms of a previous proposal, and upon the express condition 
 tiiat if any statement in the proposal were untrue the policy should be void, and! 
 limt a particular statement mentioned was untrue. Replication on equitable 
 grounds that before the policy was made, defendants issued a prospectus contain- 
 
120.] 
 
 EQUITABLK REPLICATIONS. 
 
 188 
 
 ing A representation tliat all policioa ofTocted by tliom shoiiUI be indisputable, 
 except iii cases of fraud, and tbat plaintitfetfected the policy on the faith of sucli 
 reprusuntution. Jltld tliat tlio replication wur a i^ood avoiuuncu of tlio plea : Jit. 
 So wiiere plaintiff and defendant becatue co-sureties for one A. H,, by endorsin^j a 
 bill lor £'M0. A. H. became bankrupt. The plaintiff had had other dealings witli 
 A.I)., and had advanced him £2661 68. 6d. for the purpose of erecting houses 
 pursimnt to a building contract, and had supplied him with building niateriuU 
 wortii £1512 for the same purpose, as well as £136 178. 4d. for other purposes. 
 AftvT tliH baukru])tey of A. fi., the plaintiff and the other creditors agreed that 
 the building agreement should bo delivered up to the plaintiff, to be cancelled 
 upon the payment by the plaintiff of £IA() in full discharge of all claims wiiich 
 the creditors might have upon the house and property comprised in the agree- 
 ment, and that the plaiutitlf should relinquish all claims on the bankrupt or his 
 tBtute for the said money which had been so advanced to the bankrupt fur build- 
 ing purposes and for building materials. The attorneys of the parties in drawing 
 up tlie agreement made the plaintiff " relinquish all claim for moneys advanced 
 to aud fur the bankrupt, and nis claim for goods supplied for the above mentioned 
 purposes." The plaintiff having paid the £300 upon the bill which was dishon- 
 urcu by A. B., sued the defendant for contribution. The defendant pleaded tliat 
 the plaintiff had discharged A. B. by the above-mentioned agreement. To which 
 tlie plaintiff replied on equitable grounds that the memorandum of agreement 
 was drawn up by mistake, the real agreement being confined to claims of the 
 plaintiff for moneys advanced fur building purposes, and having no reference to 
 tho £800 bill and being already executed ; he also denied that he had relinquished 
 his claim against the oankrupt for the £300. To tliis replication the defendant 
 demurred. Held that it was doubtful whether the terras of the memorandum of 
 agreement included the claim for the £300, but that even if it were so, the defen- 
 dttnt by demurring having admitted the mistake, tho replication was a good equi- 
 table HUHwer to tlie plea, and that the agreement having been executed, it was 
 not neces.sary that a court of equity should reform it to entitle plaintiff to tho 
 benefit of his replication : Vorlei/ v. Barrett, 28 L. T. Rep. 86. Eut in an action 
 of account upon the statute of 4 Anne, cap. 16, a. 27, by one tenant in common 
 against another for not accounting for rents received, tho defendant pleaded that 
 before the receipt Of the rents tho plaintiff and defendant by indenture demised 
 the premises to one C. D. for a term of 500 years, which term, after divers assign- 
 ments, vested in defendant, to which there was an equitable replication that the 
 said indenture was a mortgage to secure a sum of monej-, and that defendant had 
 received more than sufficient to pay the mortgage debt. This replication was 
 Btnick out because the court of common law had no power to order a reeoiivey- 
 anco: Gorely v. Gorely, 1 H. & N. 144. An oction was brought on a covenant 
 in a mortgage deed made by defendant and one E. F., securing payment of £'2.SuO. 
 Plea on equitable grounds that under tho mortgage deed certain chattels were 
 assigned to plaintiff as a security with power to sell, and that he sold, and that 
 the proceeds were sufKcient to satisfy his demand. Replication on equitable 
 grounds that part of the goods so assigned were not in fact the proj)ertv of the 
 ajsignor till after the date of the indenture, and did not pass by it, and that after- 
 wds they became the property of E. F. by a decree in chancery, which bound 
 him to pay £700 for them, and that he had' not paid it. The plaintiff therefore 
 asserted liis right to deduct from the proceeds of the sale the £700 for wliicli he, 
 as purchaser, having notice of a trust, was liable in equity, llo aUo claimed to 
 deduct the £600 subsequently advanced to E. F., and to apply oh\y the sura 
 remaining after these deductions in discharge of the defendant's liability. The 
 court decided in favour of the claira to deduct the £700, as the proceeds of the 
 property sold were in truth less that amount, but refused to allow the £600 to be 
 deducted, as that was an attempt to tack the second mortgage to the first : Mar- 
 ton tt al v. Bloxam, 1 1 Ex. 586. In an action on a policy of insurance, defendants 
 
 Mi 
 
 
 if ' f 5 
 
T" 
 
 
 184 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [S. 12] 
 
 Striking nut 1S87, (_y) In caso it appears to the Court or any Judge 
 
 plea, &(•., thereof, (») that any such equitable plea or equitable replica- 
 
 ii()t be (lenit tion canuot be dealt with by a Court of Law so as to do justice 
 
 court of law. between the parties, (a) the Court or Judge may order the 
 
 same to be struck out, (6) on such terms, as to costs and 
 
 otherwise, as to such Court or Judge seems reasonable. 
 
 19 Vic. c. 43, s. 290. 
 
 pleaded that the life inanred had gone beyond the seas, contmry to the tenna of 
 the policy, and so vitiated it. Plaintiff proposed to reply on equitable grounds, 
 first, facts showing that at the time of the making of the policy it was expressly 
 agreed that the policy should not be vitiated by the life insured going to places 
 out of Europe, secondly, leave and license to go to places out of Europe. Leave 
 to reply as in the first replication refused, leave to reply as in the second repli- 
 cation granted : Rein et at v. The Scotlinh Eqnitahle Life Asmr. Co. 29 L. T. Hep, 
 113. In an action of covenant by the devisee of the reversion against the lessee, 
 the declaration alleged that the reversion of and in the demised premises belonged 
 to the lessor and his heirs. Plea that the reversion of and in, Ac, did not bel(in» 
 to the lessor, as alleged. In an action by the assignee in the name of tlia 
 assignor of a ship and charter party for freight, the defendant pleaded a relefisa 
 by plaintiff and payment. Held that it was a good equitab'e replication that the 
 release and payment respectively took place after the defendant had notice of the 
 assignment, and were a fraud upon the assignee : Pothomer v. De Mallo, 31 L. T. 
 Rep. 177; 6 W. 11. 628. 
 
 {>/) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 86. 
 
 (2) Although an equitable plea has been allowed by a judge at chambers, the 
 plaintiff still has a right to apply to the court for a rule to strike it out, and tiiis 
 not by way of appeal from the decision of the judge at chaaibers, but as a sub- 
 stantive motion : Wuod v. The Copper Miners' Co. 26 L. T. Rep. 91. 
 
 (1) A court of equity often refuses to entertain bills for relief when its juris- 
 diction cannot be beneficially exercised : see Hills y. Croll, 2 Ph. 60; Lumtojr. 
 Wayner, 21 L. J. Ch. 898. 
 
 (6) To an action by the drawer against the acceptor of a bill of exchange at 
 three months, dat":! i2th July, the defendant pleaded by way of equitable defence 
 that the bill oug!>t to have been and was represented to him by the plaintiflf to 
 bo drawn on 2r)th Tuly, and that three months from 26th July had not elapsed 
 before action brought, whereupon plaintiff made application to a judge in cliara- 
 bers to strike out the plea on the ground that "it was frivoious, and disclosed no 
 flefenco in equity," and was by the judge referred to the full court. Plaintiif 
 accordingly obtained a rule nisi from the full court on affidavits that the plea was 
 " false in substance and in fact." The court tliin'^ing that the ]>lea " did not dis- 
 close a full equitable defence" struck it out : Drain v. Harvey, 1 7 C. B. 257. The 
 admissibility of an equitable pleading, whether plea or replication, may be deter- 
 rrilned In either of two modes. First, when the application is made for leave to 
 plead more than one plea or replication one thereof being equitable, in which 
 case the admissibility of the equitable pleading may be decided upon in limiut. 
 Second, where a party having the right to plead singly without leave pleads an 
 equitable pleadinf^, in which case his opponent may apply under the section here 
 annotated to strike It out. Whenever It appears that the equitable pleading can- 
 not be dealt with by a court of law, " so as to do justice between the parties," it 
 may bo disallowed or struck out. A court of law has no power to administer 
 
S. 128.] POWER OF COUNTY JUDGES IN SUI'EIIIOR COURT SUITS. 185 
 IXTERLOCUTORY MATTERS AND PROCEEDINGS. 
 
 198. (0 Whenever the Plaintiff or Defendant in any Certmod 
 suit instituted in either of the said Superior Courts, wishes to jirocciMiinss 
 produce to either of such Courts or to any Judge thereof, the taimii'trom 
 writ, declaration, plea, or any other proceeding filed in the cHks' ' ^ 
 cause iu the office of any Deputy Clerk of the Crown, (J) the ""'^"^' 
 Plaintiff or Defendant may demand and receive from such 
 Deputy Clerk a copy of the same, certified by the said 
 Deputy to be a true copy of the original, and such copy so 
 certified shall be received (e) by such Court or Judge, in all 
 cases in lieu of the original, and as a proof thereof. (/') 
 2 Geo. IV. c. 1, s. 34. 
 
 TIME TO PLEAD, REPLY, &c. 
 
 139. (g) In suits in either of the Superior Courts, the Judges of 
 Judge or acting Judge of the County Court for the County courts may 
 
 coiiditionnl relief, such as dispensed by courts of equity through the medium of 
 coiulitional injunctions. The equitable pleading will be sustained only when dis- 
 closing equitable grounds which in the oj)inion of the court would entitle the 
 party pleading it to an absolute and unconditional injunction against the judg- 
 ment obtained at law if no such pleading were allowed: see note w to section 43. 
 
 (c) Taken from our old King's Bench Act 2 Geo. IV". cap. 1, e. 34. The object 
 of tliu enactment is to prevent the risk of loss of proceedings filed with the proper 
 officer, by reason of their production in court, and so makes certified copies 
 evidence in lieu of the originals and as proof thereof. 
 
 ((/) In an action for a malicious arrest an examined copy of the affidavit on 
 wliich the arrest was made, coming from the bauds of the proper officer and 
 sliowu to have been used in the cause, was held sufficient to prove that it was 
 made by did'ondant: iSpafford v. Buchanan et al, 3 0. S. 391. The identity of 
 dt'fondant with deponent may be presumed prima facie from the name : Wihon v. 
 Thorpe, 18 U. C. Q. B. 443 ; see also Hamber v. Roberts, 7 C. B. 8fii. If a party 
 on motion before a judge, use the affidavit of another person, such aflSdavit is on 
 nny subsequent occasion admissible as evidence against him who used it: Brickell 
 V. Ilithe, 7 A. «t E. 454; see also Richards v. Morgan, 12 W. R. 162. Even on a 
 triid, when the person who swore the affidavit is present iu court and not 
 cidk'd ; Buckell v. Ihihe, 1 A. & E. 464. 
 
 (f) So far as this section is concerned, it is indispensable to the right of the 
 luM'ty jivoducing the copy of affidavit to be used under the section, that the copy 
 produted by him should be certified as the section directs. 
 
 (/) The copy is not merely receivable "in lieu of the original," but "as a 
 proof thereof." Hence, where the cojiy produced is of such a proceeding as con- 
 tiMiqilated by the section and certified as required by the section, it is unnecessary 
 ill the case of an affidavit to call the commissioner or other person to prove the 
 
 uinkiiig of the affidavit. 
 
 {fi) Judges of county courts originally had jurisdiction only in respect of mat- 
 ttid and things relating to suits pending in their own courts. But after a time 
 
 
 
 li- 
 
 ill 
 
 t- n 
 
 aJi.j 
 
186 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 130. 
 
 srant sum- \„ which the suit has been brought or the venue laid, (h) 
 
 mouses and ^ " _ ' > / 
 
 ordiTsiu niav, (i) upon the apiOication of the PlaintiflFor Defendant in 
 
 certain mat- ■ \ ^ r r •. 
 
 ters riiatiiig such suit, grant summonses and orders for time to declare, 
 
 to suits i" , , , . . , » . , PI , 
 
 iheHupeiior plead, reply or rejoin, and for particulars or demand, or of 
 
 Court. rr t 1 1 /> 
 
 set-oii, and may grant summonses and orders, tor payment of 
 money into Court, for the allowance of Hail, or for security 
 for costs ; (J) and such Judge of the County Court may hear 
 and determine such applications and grant such sumuionses, 
 impose such terms, and r ake such orders as might be granted, 
 imposed and made in the like cases by a Judge of one of the 
 Superior Courts sitting in Chambers. (Jc) 16 Vic. c. 175) 
 s. 17 ; 13 & 14 Vic. c. 52, s, 5 ; 20 Vic. c. 57, s. 21 ; 12 Vic 
 c. 63, 8. 35. 
 
 130. (I) The provisions of the last section shall not apply 
 Except in to any suit ■wherein the venue is laid in the County of 
 of york'ami York, (m) or to any suit wherein the Attorney for the De- 
 power was conferred upon thera by the legislature to net in aid of the judges of 
 the superior courts of law in respect of suits pending in the superior courts. 
 First, it was declared that they should have power to make orders for time to 
 plead, reply or rejoin, for particulars of demand and set-off, and to compute: 
 12 Vic. cap. 63, s. 35; 13 <fe 14 Vic. cap. 52, s. 5. Ne.xt, to make orders for pay- 
 ment of moneys into court, for the allowance of bail and security for costs, mid 
 for the admission of documents in evidence: 16 Vic. cap. 175, s. 17. And then to 
 make orders for copy or inspection of documents : 2<> Vic. cap. 57, s. 21. 
 
 (/() There was a proviso to section 35 of 12 Vic. cap. 63, which preventod it 
 having any operation in the county of York, for the reason that in the city of 
 Toronto a judge of the superior courts sits daily in chambers at Osgoodo Hall, 
 and applications can be as conveniently made there as to the county judge of 
 York and Peel. This proviso will now be found in section 130 of this act. 
 
 (/) " May." The county judges are not bound to entertain applications of tlie 
 kind provided for in the section. It is entirely in the discretion of the judge 
 whether he shall confine his attention to his own courta or not. 
 
 (_;■) It will be noticed that the power under 16 Vic. cap. 175, s. 17, to make 
 orders as to the adtnission of documents in evidence, and under 20 Vic. cap. 57, 
 8. 21, to make orders for copy or inspection of documents, has ceased nnJ not 
 been re-enacted by the section here annotated. 
 
 (k) An appeal lies from the order of a county judge made under this section to 
 the full court, in the same manner and with the same consequences as if the 
 order were that of one of the judges of one of the superior courts of law presidiii;; 
 in chambers : section 130. 
 
 (l) This is taken from two provisos to section 35 of repealed statute 12 Vic- 
 cap. 63. 
 
 (m) Because it is presumed a judge of one of the superior courts of law daily 
 sits in chambers at Osgoode Hall, in the county of York, and it is as convenient 
 for attorneys being in that county to apply to any such judge as to the judge of 
 the county court. 
 
 EFFECT OF BE 
 
 upon &Uf;'gcstioi 
 
131.] 
 
 DEATH OP PLAINTIFF OR DEFKNDANT. 
 
 187 
 
 fendant, or in cose of two or more Defendants, where the |" "/,!j["' '^''" 
 Attorney for any one or more of them, resides in a County iustaiucs. 
 different from that in which the Attorney for the Plaintiff, or 
 if he [irosecutes in person in which the Plaintiff, resides ; («) 
 and either party interested may appeal from any such decision ^vjti, right 
 or order to the Court in which the sction is pending, or to a s,V,',[!JS'"r' *" 
 Judge of one of the Superior Courts at Chambers, and such ^,",'1^' 't'ucV 
 Court or J' ,.e may affirm, reverse or modify such deci.>;ion "*• 
 or uriiv 1, or make such other order upon the subject matter of 
 appeal, and the proceedings had thereon, and with or without 
 costs, as to such Court or Judge seems meet. (/»') 12 Vic. c. 
 63,8.35; 20 Vic c. 57. s. 21. 
 
 EFFECT OF DEATH OR MARRIAGK UPOX 
 
 ACTION. ir) 
 
 THE PROCEEDINGS IN AN 
 
 1»1. (?) Tbc -leath of a Plaintiff or Defendant (?•) shall SSaut 
 
 Death of 
 plaiiitifl'or 
 
 M Hence the last section is only applicable tf> cases where the attorneys, as 
 wtll for defendant or defendants as for the plaintiff, reside in the same county, 
 
 (o) See note w lo section 48. 
 
 (//) The amendments introduced bj- the following sections are intimately con- 
 nected with tiie law of reviving judgments. Tiie rule is that where a new person, 
 who is not a party to an action, lerives a benefit by or becomes chargeable to it, 
 tla'pe must be some proceeding to make him a party. On tliis rule are founded 
 file cases of survivorship, marriage, and death. At common law the death of 
 I'itlier part}' at any time during tiie pendency of an action, i e., before judgment, 
 abated the action. This was the law, altliough <leath ha;>peiiiHl after judgmei:'. by 
 dffault or a verdict. In like manner, where the action wii- joint, the death jf any 
 one of tiie p.^rties caused the action to abate. The first reintfl\- applied by statute 
 was to the effect that the death of a party between venlict and judgment should 
 not be alleged for error so as such judgment was entered witliin two terms after 
 verdict: 17 Car. II. cap. 8. Of this statute, section i:i!t of this C. L. f^ Act is a 
 ccjpy. In furtherance of justice it was afterwards enacted that proceedings might 
 bi! liad by nci. fa., either in favour of the representatives of a deceased plaintiff 
 a;;aiiist defendant, or in favour of plaintiff against representatives of a deceased 
 dcll'iulant, under certain restrictions; 8 «!: 9 \Vm. Ill, cap. 11, s. 6. Then as to 
 joint actions it was in the same statute enacted that a cause of action should not 
 iibate hy reason of the death of one of beveral plaintiffs or defendants, but that 
 Ilium suggestion of the death the action might be continued : section 7. Of this 
 latter section, section 132 of the C. L. P. Act is a re-enactment. So if the legal 
 roHpoiisibility of either party being a feme sole be altered, as by marriage, provi- 
 simi is by this act made for continuing the action notwithstanding the coverture: 
 suction 14.3. There are other provisions of a similar nature, all of which felly 
 bear out the general intention of the legislature when passing tlie C. L. P. Act, 
 viz,, to simplify and expedite proceedings in the courts of common law. 
 
 {<]) Taken from Eng, Stat. 15 <fe 16 Vic. cap. 76, s. i;?5. 
 
 (/•) Provision is hereinafter made for the death of one or more of several plain- 
 tiffs or defendants (section 1!>2), of a sole plaintiff (section 133), and of a solo 
 defendant (section 134). 
 
 IM 
 
 .! '4 
 
 '■-|r 
 
 1^^\ 
 
 _is._3fc 
 
 ■i: 
 
-J.!:|rM 
 
 vmm 
 
 iT-'l 
 
 mw 
 
 fi:,f ''1 
 
 .:| 
 
 188 
 
 THK COMMON LAW PROCEDURE ACT. 
 
 [s. 132. 
 
 not cause the action (s) to abate, (t) but it niny be continued 
 as hereinafter mentioned. («) 19 Vic. c 43, s. 208. 
 
 If there be 133. (v) In case there be two or more Plaintiffs or De. 
 
 more tlmn «, , ,, ,. i.n> 
 
 one plaintiff lendaDts and one or more of them dies, and ir the cause of 
 
 or defenjimt . , ^ . , . . t-»i • •«• r>i • •«• 
 
 and the action {w) survives to the surviving Plaintm or rlaintiffs, (x) 
 
 action sur- or against the surviving Defendant or Defendants, (y) the 
 
 others." '* action shall not bo thereby abated, but such death being 
 
 suggested on the record, (2) the action shall proceed at the 
 
 (») The action, i. e., any action. 
 
 (t) Jiiclicinl proceedinijs are to be considered as taliing; place at tlie earliest 
 period of tlie day on wliicli tliey are done. Therefore wliere judgment was signed 
 at tlie opening of the office at 11 a.m., and the defendant died at 9| a.m. on tiie 
 same morning, held that the judgment was regular: Wriffht et al v. Milh, 4 II. <fe 
 N. 488 ; sec also Converse et al v. Michie, 16 U. C. C. P. j"t)7. 
 
 (w) The right to enter a suggestion of the death of a plaintiff and continue tlie 
 action, only exists where the cause of action Avould before the act have survived 
 to the personal representative: Flinn v. Perkins, 1 L. T. N. S. 364. An action 
 by husband and wife, in the right of the wife, survives: Sherrington v. V'l'ea d 
 al, 12 M. & W. 855. But not so on an action for libel: Ireland v. Ckamfiucut, 
 4 Taunt. 884 ; or seduction under our statute : Hall v. Goodman, 10 U. C. C. ['. 
 174. There is a method of compelling the continuance or abandonment of an 
 action by the representatives of a deceased plaintiff: see sections 144, 145. 
 
 (w) Taken from Eng. Stat. 15 \t 16 Vic. cap. 76, s. 136. The origin of the 
 section is 8 it 9 Wni. III. c. 11, s. 7. 
 
 (?«) A writ of error was in England held to be an action within the meaning 
 of 8 <fe 9 Wm. III. c. 11, 8. 7; Clarke v. Rippon et al, 1 B. <fe Al. 586. 
 
 {x) Questions will arise in cases where husband and wife are joint plnintiffs 
 and one dies, more frequently than in other cases : see section 75, and uotet 
 thereto. 
 
 {y) A joint contract or obligation may in certain cases be given in evidence 
 against one or more of several joint contractors : see section 72 and notes. 
 
 (z) If a co-plaintiff die before issue joined, the death should be suggested in 
 making up the issue : Far v. Denn, 1 Burr. 362. If after issue joined, then thf deiitli 
 should be suggested on the Nisi Prius record: Rex v. Cohen, 1 Stark. N. I^. 511. 
 It was in one case held after a suggestion on the issue roll, not to be necessary to 
 transcribe the very words of the o.iggestion from the pleadings to the Nhi I'nM 
 record, but only enough to show the judge what issues he was to try and between 
 whom : Far v. Denn, 1 Burr. 362, per Denison, J. The courts have in furthenince 
 of justice not only allowed suggestions to be amended but to be made ex, post facta. 
 Thus where one of two plaintiffs died before interlocutory judgment, but the suit 
 went on to execution in the name of both after a motion to set aside tlie proceed- 
 ings for this irregularity, the court permitted the plaintiff to suggest the de.ith as 
 before interlocutory judgment and to amend the execution without paying costs; 
 Ntwnham et al v. L'lw, 5 T. R. 577. The suggestion should be entr^red so ns to 
 bring the facts to the knowledge of the court in proper form, before any further 
 proceedings are taken : Pinkus v. Stnrch et al, 5 C. B. 474 ; Larchhi et al v. Buckle, 1 L. 
 M. «fe P. 740. Where there were several defendants, some of whom had died before 
 issue joined and ti»o survivors without a suggestion of death moved for juilgirient 
 
 
s. 133.] 
 
 DEATH OP A SOLE PLAINTIFF. 
 
 189 
 
 suit of the surviving Plaintiff or Plaintiffs against the surviv- 
 in<» Defendant or Defendants. («) 19 Vic. c. 43, s. 209. 
 
 133. (6) In case of the death of a sole Plaintiff or sole Death of a 
 surviving Plaintiff, the legal representative of such Plain- 
 tiff (c) may, (d) by leave of the Court or a Judge, (e) enter 
 
 sulu plaintiff 
 
 as in case of nonsuit, it was said by Wilde, C. J., " There is always a roll or the 
 materials for making one up. It is essential that there should be some suggestion 
 of the death before the surviving defendants can move for judgment as in case of 
 nonsuit. If they are unable to discover a mode of making up such suggestion, 
 they certainly are not in a position to make the present motion." And, per Wil- 
 li.ims, J., "The statute 8 <fe 9 Wm. III. cap. 11, does not say by whom the sugges- 
 tion shall be entered :" Finkna v. Slurrh et al, 6 C. B. 474. Where the defendant 
 obtained a rule for judgment as in case of nonsuit, the court refused to discharge 
 it except upon the peremptory undertaking, notwithstanding the production of 
 an affidavit stating the death of one of the plaintiffs subsequently to the delivery 
 of the declaration : Larchin et al v. Buckle, 1 L. M. «tc P. 740. The affidavit was 
 intitled in the names of all the plaintiffs, both deceased and surviving ; and 
 scmblt,per Maule, J., that it was wrongly intitled: lb. 
 
 [a) The suggestion at Nisi Prius may be entered on the Nisi Prius record 
 immediately after the Jwrata. " And now on, Ac, before, Ac, justices of our said 
 lady the Queen, appointed to take the assizes in and for the county of, tfec, at, 
 Ac, in the same county, comes the said A. B. and the said C. D. by their respec- 
 tive attorneys, but the said E. F. comes not, and thereupon the said A. B., accord- 
 ing to the statute in such case made and provided, suggests and gives the said 
 justices here to understand and be informed that after the defendants pleaded to 
 the said declaration {according to (he fact), and before this day, that is to say, on, 
 Ac, tlip said E. F. died, to wit, at, «fec, and the said C. D. (the other defendant) 
 there survived him, and which the said C. D. doth not deny, but admits the same 
 to be true. Therefore let the said issue so joined as aforesaid be tried between 
 the said A. B. and the said C. D." In tliis case a suggestion merely is made, 
 because as no new person is introduced no writ of revivor is required. But the 
 provisions of our Con. Stat. U. C. cap. 78, s. 6, must not be passed over without 
 being noticed. It makes liable the representatives of a deceased joint contractor, 
 although the other co-contractors be living; and provides for the issuing of a 
 Ki.fa. after judgment against the representatives of a deceased joint contractor, 
 though there may be another defendant still living and against whom the judg- 
 ment still remains in force. 
 
 (i) Taken from Eng. Stat. 15 4 16 Vic cap. 76, s. 137. 
 
 (c) See note u to section 131. 
 
 (d) May, not must. It is in the power of the representatives either to con- 
 tinue or discontinue the action. Defendant has it in his power to force them to 
 do the one thing or the other : sections 144, 145. 
 
 («) In ordinary cases leave will not be granted without an affidavit, which may 
 be to this effect — 1. That this action was commenced by writ of summons, on, &c. 
 2. That the said plaintiff declared therein, itc. (o,s the (line may be — the state of the 
 Mv.H 'hould be shoion.) 3. That the said pluintitt died on, &c. 4. That the said 
 plaintiff by his lust will and testament appointed me the executor thereof, and 
 that I duly proved the same on, &c., and then became his legal representative, 
 Ac. [according to the fact.) The leave may be granted on an ex /tarte application : 
 Heiachmidler v, Uberhont, 3 U. C. L. J. 48. 
 
 7<"-1- 
 
Ira" 
 
 
 r 'J 
 
 
 h ^ 
 
 wl f| h'^ 
 
 1 '' >i 
 
 1 
 
 
 
 M 
 
 
 
 
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 it 
 
 f 
 
 
 190 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 184. 
 
 Death of a 
 sole fJeft'iul- 
 ant oi- uf a 
 sule surviv- 
 ing tluleud- 
 anl may be 
 .suggested. 
 
 a suggestion of the death, and that he is such legal represent- 
 ative, (/) and the action shall thereupon proceed ; (g) and if 
 such suggestion be made before the trial, the truth of the 
 suggestion shall be tried thereat, together with the title of 
 the deceased PlaintiiF, (/*) and such Judgment shall follow 
 upon the verdict, in favor of or against the person niakiog 
 such suggestion, (t) as if such person were originally the 
 Plaintiff. 19 Vic. c. 43, s. 210. 
 
 134. (j) In cose of the death of a sole Defendant or sole 
 surviving Defendant where the action survives, (/»•) the Plain- 
 tiff may make a suggestion of the death, cither in any of the 
 pleadings, if the cause has not arrived at issue, (or by filing a 
 suggestion with the other pleadings, if it has so arrived,) and 
 that a person named in such suggestion 's the executor or 
 administrator of the deceased, (/) and may thereupon serve 
 
 (/) The suggestion may be in this form, "And hereupon, that is to aay, on, 
 «fec., C. D. by leave of the court, ifcc, for this purpose first had and obtuined, 
 suggests and gives the court here to understand and be informed that on, etc., 
 the plaintiff, A. 13,, departed this life, and that he, the said C. D., is the executor 
 of the last will and testament of the said A. li. {avcordiiiff to the fact), and as such 
 is the legal representative of the said A. B. 
 
 (ff) TJierenpon proceed, i. e. after entry of the suggestion, which is made a con- 
 dition precedent to the further prosecution of the action. 
 
 (h) In a case where a suggestion was entered upon a Nisi Prius record without 
 any authority from the court, and ii*a very informal manner, without any oppor- 
 tunity to the defendants to traverse the facts stated, a new trial was granted upon 
 application of defendants: Bamewall v. Sutherland et al, i L. M. <fe P. 16'.). 
 
 (/) Suggestions are of two classes — those that may be traversed and those not 
 traversable. It is a general proposition that matters of fact contained in a sug- 
 gestion are traversable where the courts are not authorized to determine tliein. 
 8uggostions are not traversable where a statute gives the court cognizance i/f the 
 matters of fact stated, as for example, a statute declaring that a plaiutitf recover- 
 ing a verdict under a certain sum shall be entitled only to inferior court costs, or 
 to no costs, and the fact is made to depend upon the judge's certificate: sec 
 Gardiner v. Stoddard, Dra. Rep. 101. Another class of cases where the matter of 
 suggesiion belongs to the court, is where tlie court, having a discretionary power 
 over its own proceedings, i^^ called upon to depart from the usual course, on tlie 
 suggestion of some matter which renders such departure essential or expedient 
 for the purposes of justice, as where the venue i.s to be clianged because an 
 impartial trial cannot be had : Watson v. Quitter, 1 D. " ~ 
 
 ij ) Taken from Eng. Stat. 15 & 16 Vic. cap. 16, s. 
 (Z;) See note u to section 131. 
 
 & L. 244. 
 138. 
 
 (/) The object of the section is to place the personal representative in the 
 canes provided for in the same position as if he had been the original party named 
 vifma the record, to substitute the one for the other, and so avoid the necessity for 
 
 suggestion sha 
 
S8. 135, 136.] DEATH OF A SOLE DEFENDANT. 
 
 such executor or administrator with a copy of the writ and 
 sufT^estion, and of the said other pleadings, (m) and with a 
 notice signed by the Plaintiff or his Attorney, requiring such 
 executor or a'^'Toinistrator to appear within ten days after ser- 
 vice (if the notice, (n) inclusive of the day of such service, 
 and notifying him that in default of his so doing, the Plaintiff 
 may sign Judgment against him as such executor or adminis- 
 trator/(o) 19 Vic. c. 43, s. 211. 
 
 133. (jo) The same proceedings may be h d and taken 
 in case of non-appearance after such notice as upon a writ 
 against such executor or administrator in respect jf the cause 
 for which such action has been brought, {q} 19 Vic. c. 43, 
 s. 211. 
 
 191 
 
 Copy and 
 notice to be 
 served on 
 the opposite 
 party. 
 
 After siieh 
 notice the 
 jiroeeedlngs 
 to be tljo 
 same as in 
 actions re- 
 lating to 
 executors. 
 
 136- (r) In case of no pleadings before the death, the ifnopre- 
 
 ^ ' • vious plead- 
 
 suggestion shall form part of the declaration, (s) and the "'b's, tue 
 
 commencin<j a fresh'action : Benge v. Swaine, 15 C. B. Y92, per Jarvis, C. J. An 
 iiction commenced against an intestate may be continued against an executor, de 
 son tori : Keena v. O'llara, 16 U. C. C. P. 435. 
 
 {ill) Tiie suggestion may bo to the effect following : "And on, <fec., the plaintiff 
 comes and gives tiie court to understand and be informed that the said defendant, 
 "n, ite., died since the issuinjr of tlie writ of summons in tliis cause, and tliat C. 
 D. is liis executor, and the said A. B. now sues the said C. D. as such executor as 
 
 aforesaid." 
 
 {») This is consonant with tlie general rule that wherever a person not a party 
 to tiie notion is to be directly affected by it there must be a suggestion made, so 
 tlint such person may either plead or demur before being subjected to execution : 
 see BiirtUtt et at v, t'entland, 1 B. & Ad, 704. 
 
 (o) Tlie notice may be in this form: " Take notice that I, on, Ac, commenced 
 an luiion against C. D... since deceased, by a writ of summons issued out of, &c., 
 ustod on that day, and tliat the document hereto annexed, marl^ed A , is a true 
 copyof tlmt writ, and tliat p.-oceedinirs were taken in that action against the said 
 ('. IV, nud tliat 1 have enteved a suggestion on the said proceedings of the death 
 of the fiuid C. D., and that j'ou are executor, &q. {aa the fact may be), and that a 
 cop3' of the suggestion made therein is hereunto annexed, marked B. And further 
 take notice that you are retjuired to appear in the said court to the said action 
 "itliin ten days after the service of this notice, inclusive of the day of such .ser- 
 vice, and that in default of your so doing, 1, the plaiutilf, may sign judgment 
 Sp^ainst 3-ou as such executor as aforesaid." 
 
 0') Taken from the latter part of section 138 of Eng. Siat. 15 & 16 Vic. cap. 76. 
 
 (i) ». '•., If the writ be specially indorsed judgment under section 15, but if not 
 tlien proceedings under section 53. 
 
 (»•) Taken from the latter part of section 133 of Eng. Stat. 15 <k 16 Vic. cap. 76. 
 
 (') See note m to section 134. 
 
 "t ^ 
 
 Mi--^ *i^ 
 

 
 192 
 
 suggestion 
 to fiirin part 
 of the 
 declaratiou. 
 
 If plaintiff 
 has (le(^lared 
 and defen- 
 dant has not 
 pleaded. 
 
 If defendant 
 lias pleaded. 
 
 THE COMMON LAW PROCEDURE ACT. [S8. 137, 138, 
 
 declaration, with a notice to plead, and the suggestion, may 
 be served together, and the new Defendant shall plead to 
 both at the same time, and within eight days al'ter the ser- 
 vice. (0 19 Vic. c. 43, s. 211. 
 
 137. (u) In case the Plaintiff had declared, but the 
 Defendant had not pleaded before the death, the new Dcfen. 
 dant shall plead at the same time to the declaratioa aod 
 suggestion within eight days after service of the sugges- 
 tion ; (v) and in case the Defendant had pleaded before the 
 death, the new Defendant shall, within eight days after the 
 service of the suggestion, plead theretc^only by way of denial, 
 or such plea as may be appropriate to and rendered neces- 
 sary by his character of executor or administrator, unless by 
 leave of the Court or a Judge he be permitted to plead 
 fresh matter in answer to the declaration, {w) 19 Vic. c. 
 43, s. 211. 
 
 138. (x) In case the Defendant had pleaded before the 
 death, but the pleadings have not arrived at issue, the new 
 Defendant, besides pleading to the suggestion within eight 
 days after the service thereof, shall continue the pleadings to 
 issue in the same manner as the deceased might have done, 
 and the pleadings upon the declaration and the pleadings 
 upon the suggestion shall be tried together; (y) and in case 
 
 4-h- ■ 
 
 (<) The time limited for pleading is similar to that allowed in ordinary cases: 
 see section 91. 
 
 (m) Taken from the latter part of section 138 of Eng. Stat. 15 <fe 16 Vic. cap. T6. 
 
 (v) The action is as nearly as possible to be carried on without interruption or 
 abatement of any part of it: Benge v. Swaine, 15 C. B. 784. 
 
 (w) The section is very explicit. The representative must be governed by tlie 
 state of a suit when ho is made a party. 1. If before declaration, he will have 
 eight days to plead both to the suggestion and to the declaration, and to tlie 
 latter it is presumed any defence open to the deceased. 2. If after declaration 
 he will be precisely in the same position. 3. But if after plea then he will not 
 be allowed to plead fresh matter to the declaration unless by leave first obtained, 
 4. Whenevpr he may plead to the declaration, it is apprehended he may demur 
 if there be ground of demurrer, though the right so to do is not in express wor.s 
 given : see Bartlett el al v. Pcntland, 1 B. <Ji Ad. 704. 6. The suggestion bein? 
 traversable, no matter at what stage of the cause made, may be traversed indi- 
 pendently of any other pleas pleaded, 
 
 (z) Taken from the latter part of section 138 of Eng. Stat. 15 & 16 Vic. cap. "'' 
 
 (,V) The proceedings on the suggestion will of course be collateral to the pro- 
 ceedings in the cause, though the latter must necessarily be dependent upon the 
 
 If 
 
 IS. 
 
8. 130.] 
 
 DEATH BETWEEN VERDICT AND JUDGMENT. 
 
 108 
 
 cases 
 
 d by llie 
 ill have 
 d to tlie 
 jlaration 
 will not 
 .btaineJ. 
 y deiiuir 
 
 S3 WOT'ls 
 
 yn bein^' 
 ,ed iuJ»'- 
 
 cup. "''■ 
 1 tlie lir<'- 
 
 lipon 
 
 the 
 
 the riuintifF recovers, he shall be entitled to the like Judg- if piiintiir 
 meiit in respect of the debt or sum sought to be recovered, 
 and in respect of the costs prior to the suggestion, and in 
 respect of the costs of the suggestion and subsequent thereto, 
 as ill an action originally commenced a^-ainst the executor or 
 administrator, (^z) 19 Vic c. 43, s. 211. 
 
 130. (a) The death of cither party between verdict (b) THe death of 
 and Judgment (c) shall not hereafter be alleged for error, (d) butwitu vtr- 
 
 result of the former. It ia not declared that a separate notice of trial sliall bo 
 necessary for each set of pleadings. The notice of trial being as to the trial of 
 the cause, and both sets of pleadings forming only one cause, one notice would it 
 ia conceived be sufficient. 
 
 (z) " And in case the plaintiff' recovers," Ac. Some difficulty arose upon tho 
 construction of the Eng. C. L. P. Act, owing to the absence of all mention in tho 
 act about costs in the event of the substituted defendant succeeding on the trial. 
 But upon much consideration it was held that the defendant, when successful, 
 was as much entitled to costs as plaintiflf woidd be if successful : Iknge v. Swaine, 
 15 C. B. 784. Therefore where an administratrix had been made defendant, in an 
 action commenced against the intestate, and she pleaded to the suggestion, tho 
 court would not allow the plaintiff afterwards to discontinue without payment of 
 all tlie costs of the cause : lb, 
 
 (a) Taken from Eng. Stat 15 «fe 16 Vic. cap. 76, s. 139. Tho words of this sec- 
 tion are the same as those used in 17 Car. II. cap. 8, s, 1. The decisions under 
 the one apply to tho otiier; Frewen v. Lethbridge, 1 W. R. 442, per Martin, B. 
 Held not to apply to the case of a party dying after an interlocutory, but before 
 final judgment : Ireland v. Ohampneys, 4 l^aunt. 884. For this provision is made 
 by the following section (140). The death of either party before the assizes is not 
 remedied by the statute : Anon., 1 Salk. 8 , though a death after the commission 
 day of the assizes but before verdict is within the statute ; for the assizes have 
 relation to the first day thereof: Jacobs v. Miniconi, 7 T. R. 31. The English 
 sittings in term are not, however, considered m the same light : Taylor v. Uarrin, 
 3 B. (ii P. 549 ; Johnson v. Budge, 3 Dowl. P. C. 207 ; but see Cheetham v. Sturte- 
 mm, 12 M. A W. 515. 
 
 {b) This aection, unlike the preceding sections and the following one, is not 
 restricted to such actions as executors might prosecute. It extends to verdicts 
 in actions for torts as well as on contracts : Palmer v. Cohen, 2 B. <fe Ad. SI66 ; 
 Kramer v. Waymark, L. R. 1 Ex. 241 ; but does not extend to nonsuits in any 
 action: Doicbiggin v. Harrison, 10 B. & C. 480. Where the court made absolute 
 a rule nisi for entering a verdict and directing a nonsuit to be entered {)ur8uant 
 to leave reserved at the trial, and the plaintiff died between the term in wiiich 
 the rule nisi was granted and that in which it was made absolute, the court, 
 in order to prevent an abatement of the suit, ordered the judgment of non^-'it 
 to be entered as of the term preceding the death : Mobr v. Roberts, 4 Jur. I S. 
 241. 
 
 (<:) The word "judgment" has been held to include a decree in equity: Owen 
 V. Lurzon 2 Vern, 237. 
 
 {(/) Unless the case be within this section, wherever the fact of death appears 
 npon the record, the remedy is by writ of error or arrest of judgment : Com, 
 I'ig. "Abatement," H. 32; see also Berwick v. Andrewi, 1 Salk. 314. * 
 
 13 
 
 ■'•'Xl. 
 
 
 * 'A 
 
 f r 
 
 
 
 
 ■^ 
 
 hi^irt'^ffr i 
 
 
rr 
 
 ii 
 
 194 
 
 (lii't and 
 Judgment. 
 
 THE COMMON LAW PROOEDURR ACT. 
 
 [S. 140. 
 
 And if De- 
 fendant so 
 dU'b. 
 
 SO aa such Judgment be eatcrcd within two terms after the 
 verdict (e) I'J Vic. c. 43, s. 212. 
 
 140* (/) If the Plaintiff in any action dies after an in- 
 inK betwwu terlocutory Judgment and before a final Judgment obtained 
 t'(')r7«"'i therein, (gr) the action shall not abate by reason thereof, if 
 Inent!"''' such action might have been originally prosecuted or main- 
 tained by the executor or administrator of the Plaintiff; (A) 
 and if the Defendant dies after interlocutory Judgment and 
 before final Judgment, the action shall not abate if such 
 action might have ^een originally prosecuted or maintained 
 against the executor or administrator of such defendant. (/) 
 19 Vic. c. 43, 8. 213. 
 
 (e) The judgment to be available must be entered within two terms nftcr ver- 
 dict. The courts will not allow judgment to be entered nunc pro tunc, unless 
 the delay bo that of the adverse party: Bull v. Price, 7 Bing. 242; or of the 
 court: Boe d. Taylor \. Critp, 7 Dow!. P. C. 584; HarrUon et al v. Utalhorn etal, 
 1 D. & L. 529 ; Lanman v. Lord Audley, 2 M. & \V. 535 ; Blewett v. Tregommit, 
 4 A. V E. 1002; Bridges y. Smyth, 8 Bing. 29; Vaughan v. Wilson, 4 Bi'ig. N. C. 
 116: Miles v. Bough, 3 D. <fe L. 105; Freeman v. Tranch, 21 L. J. C. 1'. 211; 
 Mil V. Williams, 9 Q. B. 47 ; Neil v. McMillan, 27 U. C. Q. B. 257 ; but cer- 
 taiiily not where lachcH are imputable to the party interested: Laiorence v. Ihtlj- 
 son, 1 Y. & J. 368 ; Copley v. Day, 4 Taunt. 702 ; Wilkins v. Cauty, 1 DowL 
 N. S. 855. The judgment if entered up within the time limited is equivalent to 
 a judgment entered up in the life-time of the party: Burnett v. Uolden, 1 Lev. 
 277; Coltbeck v. Peck, 2 Ld. Rayd. 1280; Saunders v. McGowran et al, 12. U 
 & W. 221. But where the plaintiff dies after verdict, the court might grant a 
 new trial on the application of the defendant, and would formerly in such case 
 impose terms upon him to prevent his taking advantage of the plaintiff's death : 
 Griffith v. Williams, 1 C. «t J. 47. If a cause bo referred to arbitration by order 
 of nisi prius, it is no ground for setting aside the award that it was made after 
 the death of one of the parties: see James et al v. Crane et al, 15 M. & W. 379; 
 Ileathcote v. Wing, 25 L. J. Ex. 23. So where after a verdict for plaintiff with 
 leave to move for a nonsuit or verdict for defendant, defendant died before a mo- 
 tion could be made and the rule nisi was afterwards obtained in his nnrae : UM 
 that the rule might be still made absolute to enter a verdict for defendant, it 
 appearing that the executors authorised the motion : Freeman v. Rosher, 13 Q. B, 
 780; see also Moor\. Roberts, 3 C.B. N.S. 844; Wright v. Skinner, 17 U.C. C.P. 31". 
 
 (/) Taken from Eng. Stat. 15 4 16 Vic. cap. 76, a. 140. The origin of the 
 section is 8 «fc 9 Wm. IlL c. 11, s. 6. 
 
 {g) Death before interlocutory judgment actually signed is not within the 
 statute: Wallop \. Irwin, 1 Wils. 315. 
 
 (h) The operation of this section is restricted to actions which might be ori^- 
 nally maintained by an executor or administrator, and in this respect differs from 
 the preceding section. 
 
 (i) Such defendant, intending a sole defendant, but will, it is apprehended, 
 equally apply to the death of a remaining defendant where the others have previ- 1 
 ously died. la England and in this province an action may he continued against a 
 
 Jt^'" defence om 
 ^""Id be here admiS 
 
 W '• ». Under secti 
 
 m3 "^^^ ^'■"it of the 
 |«<"'on238rtw^. 
 
 W Taken from Eng 
 
88 
 
 . 141, 142, 143.] NO ABATEMENT BY MARRIAGE OF A WOMAN. 105 
 
 111. (i) The Plaintiff, or, if ho dies after interlocutory A«'it(.f 
 .Tu(]i?iuent, his executor or administrator, shall have a writ of '«>*'"• i" '"«" 
 
 o ' _ (if jpliilntill"!* 
 
 Revivor in the form (A) No. 11, or to the like effect, against tUiitii. 
 the Defendant, if living after such interlocutory Judgment, 
 or if he has died, then against his executors or administrators, 
 to show onuso why damages in such action should not bo 
 assessed and recovered by the Plaintiff, or by his executor or 
 administrator. Q) 19 Vic. o. 43, s. 213. 
 
 143. ('») If such Defendant, his executor or adminis- proii'(Miiiig.s 
 trator, appears at the return of such writ, (n) and does not *^'""'*"i"'"- 
 show or allege any matter sufScient to arrest the final judg- 
 ment, (o) or if he makes default, the damages shall be 
 assessed, {p) or the amount for which final judgment is to be 
 signed shall be referred to the proper officer as in this Act 
 provided ; (j) and after the assessment had, or the delivery 
 of the order with the amount endorsed thereon to the Plain- 
 tiff, bis executor or administrator, final judgment shall be 
 given for the Plaintiff, his executor or administrator, against 
 the Defendant, his executor or administrator respectively, (r) 
 19 Vic. c. 43, s. 213. 
 
 143. (s) The marriage of a woman Plaintiff or Defendant Marriage of 
 shall not cause the action to abate, but the action may not- * *"""*" 
 
 I' i t 
 
 surviving defendant : 8 A 9 Wm. III. c. 11, s. 7 ; Eng. C. L. P. Act, 1862, s, 136; 
 section 132 of this act. But not in England against the representatives of a 
 deceased co-defendant : Fort et al v. Oliver, 1 M. & S, 242, Though the contrary 
 rule prevails in this province: Con. Stat. U. C. cap. 78, ss. 1, 2. 
 
 (j) Taken from the latter part of section 140 of 16 <fe 16 Vic. cap. 76. 
 
 (/) This is similar in terms to the form of scire facias under the old practice : 
 I Smith V. Harmon, 1 Salk. 315. 
 
 (m) Taken from the latter part of section 140 of 16 «t 16 Vic. cap. 76. 
 
 (h) 1. e. Within ten days after service thereof: see form in schedule. 
 
 (o) Xo defence open to the deceased defendant but not made use of by hinv 
 I would be liere admissible. 
 
 [p) According to the practice in force before this act, which is not altered by 
 
 |the act. 
 
 (y) t, e. Under section 161. 
 
 (r) The fruit of the judgment will be of course the execution, as to which see 
 
 iHctioa <238 el seq. 
 
 (s) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 41. 
 
 jj 1^ 
 
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 TEST TARGET (MT-3) 
 
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 Hiotographic 
 
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 23 WEST MAIN STREET 
 
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 (716) 873-4503 
 

 
 ^ 
 
196 
 
 Vlaintirror 
 UutVuilttiit. 
 
 THK COMMON LAW PROOBDUBE ACT. 
 
 [8. 143. 
 
 withstanding be proceedod with to jadgment, (t) and nch 
 judgmont may be executed against the wife alone, (u) orbj 
 suggestion, (t>) or Writ of Rovivor pursuant to this Act, (v) 
 judgment may be obtained against the husband and wife and 
 execution issued thereon ; (x) and in case of a judgment for 
 the wife, execution may be issued thereupon by the authoritj 
 of the husbabd without any Writ of Revivor or sugges- 
 
 (/) This is in substitution of the rule at common law, which was quite the 
 reverse of this enactment. The section does not apply in the case of a female 
 defendant a/fn* judgment : Afir. it v. C'oata, 25 L. T. itep. 176. 
 
 (m) Unless the wife have . 2';<ai'ate property, it would be useless to issne u 
 cxx't'iition against her ulone : Ji'vam v. Chater, 6 Dowl. P. C. 140 ; Eduardi d u, 
 V. Afar (ill et al, 17 Q. ^. Of»S ; /ye>n ,. Butler et ux, 28 L. T. Rep. 232 ; Thorpty 
 Arfflei, I D. 4 J. 8SJ. 
 
 (f) Under ,^er',.on 8f'2. T i** .:.aa may be in this form — "And now on. 
 
 Ac, the plaint!*' gives iiuia hovji-f r roirt to understand, Ac, that on, Ac. [ajkr 
 the giv'mg of judi/msrJ herein), C. D. -:.arried one E. F., and that the said plaintiff I 
 is entitled to have execution of the judgment afcresaid against the said E. F. ind 
 C. I), his wife. Therefore it is considered by the court that the said plointif 
 ought to liavo execution against the said £. F. and C. D. his wife." 
 
 (lo) PlaintifT proceedod by writ of revivor to obtain execution against husbud j 
 and wife on a judgment recovered against the latter before marriage. The declt- 
 ration set out the writ iu tvhich the judgment wus stated and prayed ezecutioa 
 Against both dofundunts upon it, and defendants demurred on the ground that do 
 legal right of action was shown against them and that the proceeding by writ of 
 revivor was inapplicable. J/eld, that the proceeding was proper and tliat the 
 riglit of action need not be shown, but only a right nrima /acte to have execution j 
 on the judgment : AyUauorth v. Patterion et ux. 21 U. C. Q. B. 269. 
 
 {x) The principle that a judgment debt belongs to the husband if he marrril 
 judgment creditor, or is payable by him if he marry a judgment debtor, in eitber 
 case renders it necessary that he should be made a party to the judgment Be 
 marriage of a feme aole never did, it seems, ipto facto abate a suit : Lee v. JIaddoia, I 
 1 Loon. 168. But might be pleaded in abatement: Morgan v. Painter, 6T.R,26}; 
 HiMis v. Frter et al, 6 Dowl. P. C. 47. And if not pleaded did not affect tlie suit: 
 Walker v. Odling, 11 M. A W. 78. It is certainly no ground of nonsuit: J<uhi*\ 
 V. Hyde, Q. B. Ont. E. T. 18A9. Still the marriage of a feme tole plaintilf after | 
 judgment, rendered it necessary for her husband to join her in suing out > inn I 
 facias for execution : Woodyery. Oreiham, 1 Salk. 116. But the husband tlonewul 
 entitled if so minded to issue the icire facial : lb. So when afeme sole defen<Jutl 
 married after judgment, a tcire faeitu might be issued against both husband uii| 
 wife on the judgment: lb. And if after tcire faciat the wife died, the fausiMdl 
 alone was liable to execution : lb. But if the husband were not made a party tol 
 the judgment during the life time of his wife, he could not and cannot after berl 
 death have a teirefaeiat unless he take out letters of administration to her eatatef 
 Bettt V. Kimptan, 2 B. A Ad. 273. It was also held that if after the entrj r 
 judgment aarainst a woman dum tola she married, plaintiff might if so dispoM 
 proceed tgalnst her without joining the husband : Cooper v. Hunehin, 4 Eait. 5ilJ 
 So in ejectment against a feme tole who married after judgment, plaintiff had f- 
 right to issue a writ of possession without noticing her husband : Doe d. Tif}' 
 v. Butcher. 8 M. A S. 667. 
 
S. 144, 145.] COMPELLING PLAINTIFF TO PROCEED. 
 
 197 
 
 tion; (y) &Qcl if in ^ny such action the wife has sued or 
 defended by Attorney appointed by her when sole, such 
 Attorney may continue the action or defence, unless his au- 
 thority be countermanded by the husband, and the Attorney 
 changed according to the practice of the Court, (z) 19 Vic. 
 c. 43, 9. 214. 
 
 141. («) Whore an action would but for this Act have Ri!,'iitnf 
 abated by reason of the death of either party and in which action wiiu-k 
 the proceedings may be revived and continued under this a)"itt-a imt 
 Act, (I') the Defendant or person against whom the action 
 may be so continued, may apply by summons (c) to compel 
 the I'luintiff or person entitled to proceed with the action, to 
 proceed according to the provisions of this Act within such 
 lime as a Judge having jurisdiction in the case may order. (</) 
 19 Vic. c. 43, s. 215. 
 
 I4(S. («) In default of such proceeding, the Defendant wbrn a sug- 
 or other person against whom the action might be so con- §(,fuuu may 
 lioued, (/) may enter a suggestion of such default and of ^ '"*'*''■ 
 the representative character of the person by or against whom 
 thb action might be proceeded with, (a« the case may 
 
 he marry » 
 ir, in eilber I 
 nent. Thtl 
 Maddout, I 
 ^T.R.2«5; 
 et the suit: I 
 
 lintiff after I 
 r oataxi"! 
 [d alone «>>1 
 |« defenduti 
 lusband u^l 
 |he hutbull 
 >apartjto| 
 [t after hef| 
 hereatatej 
 [e entrT < 
 ) di»p<* 
 .EaitMl'l 
 tiff had f 
 
 (.v) It is not stated whether the execution should be in the joint names of lius- 
 band and wife, or in the nnnio of one only. It is only provided that it may issue 
 by the authority of the husband witliout any writ of revivor, &c. The general 
 rule is thiit the execution must follow or correspond with the judgment. 
 
 It may be mentioned that a warrant of attorney to confess judguient given by 
 ti feme sole has been held to be revoked by her marrihge before judgment: Alton. 
 I Sailw. 117; aliter if given to her: Jb.; also MUcalfe et ux. v. £ooU, 6 D. dk Ifi. 46. 
 
 (z) No attorney can be changed without the order of a judge : R. G. pr. 4. 
 
 (a) Taken from £ng. SUt. 17 ib 18 Vic. c. 126, a. 02. 
 
 (A) See 88. 131 to 141, inclusive. 
 
 (o) /?.(/ iummont, i. «., to a judge in chambers. The summons may be in this 
 form— Upon reading, «tc., let the plaintitT's attorney or agent (or »/ dfad, " Let E. 
 F. of, «tc.," the letftil representative of the deceaied), attend judge's chambers to- 
 morrow at twelve o'clock noon, to show cause why the plointitf, (or the »aid E. F.) 
 should not proceed with this action according to the provisions of the Common 
 Law Procedure Act, within — days from the service hereof, or within such other 
 time as may be ordered in that behalf. 
 
 ((/) The order may be thus— Upon hearing, Ac., I do order that the plaintiff 
 (or E. ¥. of, «tc.) do proceed with this action according to tiie provisions of the 
 Common Law Procedure Act, within — days from the date hereof. 
 
 (') Taken from latter part of Motion 92 of 17 A 18 Vic. cap. 125. 
 
 (/) See sections 131 to 141 inclusive. 
 
108 
 
 TUB COMMON LAW PROCEDURE ACT. 
 
 [8. UG. 
 
 
 h\- 
 
 No m\e or 
 iirdcr to 
 ruiiiptito 
 iivi-uHiuiry. 
 
 &«,) (g) and shall have judgnnent for the costs of the actioo 
 against the Plaintiff, or against the person entitled to proceed 
 in his room, {a$ the com may be,") and in the latter cbhc, to 
 he levied of the goods of the testator or intestate. 19 Vic. 
 c. 43, s. 215. 
 
 JUDGMENTS BY DEFAULT, AND THE MODE OP ASCERTAINING THE 
 AMOUNT TO UE KECOVEUED THEREON, (k) 
 
 140. (0 No rule or order to computo shall be Uflcd. (j) 
 19 Vic. c. 43, 8. 141. 
 
 {j) Tho suggestion may be as follows — And now on, Ac, C. D. soggmts anil 
 gives the court hero to understand and be informed that tlie ^efendunt dii-tl after 
 the said issue was joined (according to the fact), and that on, Ac, an order was 
 made Ivy tlie honorable, Ac, at the instance of the said C. D., that the |)laintiff 
 {aecorihng to the fact) should within, ^fcc, proceed with this action according to 
 the provisions of tho Common Law Procedure Act. And the said C. D. fur- 
 tlicr iiuggests and gives tho court here to understand and be informed that the 
 plaint itF((« the fact may be) did not, pursuant to tho said order, within, dc, or at 
 nny other time after tho making of the same, proceed with this action accurdioe 
 to the provisions of the Common Law Procedure Act, and tliorcin niiide de- 
 fault, and that the said C. D. is the executor of the last will and tc'stamcnt of tho 
 defendant (at the fact may be). And the said C. D. prays judgment for tho costs 
 of this action and of the said suggestion. Therefore il is considered that tiio said 
 C. D. do recover against the plaintiff (at the fact may be) £ — for the costs of the 
 defence to this action and of the said suggestion. 
 
 (A) Tito sections following are founded upon the first report of the Common 
 Law Commissioners, section 64, et teq. Their object is to save ex]>ensc l)y sini- 
 plifying proceedings consequent upon a judgment by default in actions where the 
 cause of action is a money demand. Of such actions is that of debt, in which 
 judgment by default has oefore this act been considered final, so as to entitle 
 plaintiff to issue his execution without having recourse to any intermediate or 
 ulterior proceedings. Between this form of action and tho actions of assunipeit 
 and covenant when brought for the recovery of a liquidated sum of money tliere 
 is no real difference. Whatever the difference may have been it is lessened by 
 this act, which declares that it shall be unnecessary in any writ of summons to 
 state the form of action. In each of these forms of action, in which plaintiff seeks 
 to recover a liquidated sum of money, and in which a reference to compute could 
 formerly be obtained, judgment by default is made final. With respect to actions 
 brougiit for tiie recovery of unliquidated sums of money in which often the 
 atnoutit sought to bo recovered is substantially a matter of calculation, a new and 
 simple mode of procedure is also enacted in the following sections. 
 
 (() Taken from Eng. Stat. 16 <iE 16 Vie. cap. 76, s. 92. Founded upon tlie first 
 report of the Common Law Commissioners, section 65. 
 
 (j ) Speaking of the practice which prevailed before this Act and which is 
 remedied herein, tho commissioners remarked that " in every form of oction es- 
 copt debt, an interlocutory judgment only is signed, and the amount to which 
 
 Elaintiff is entitled is oscert ^neu by the verdict of a jury on a writ of inquiry or 
 y a rule to compute, the latter of which is allowed only in certain cases of de- 
 mands liquidated uy a written contract, ond is in substance an order of the court 
 that it be referred to the master, to ascertain the amount to be recovered by tiie 
 final judgment. It was described by the commissioners as being " an expensive 
 proceeding, purely formal, involving affidavits, briefs to counsel and other costs,' 
 
B. 147.] 
 
 JUDGMENT Br DEFAULT. 
 
 199 
 
 tuiU CttSVS, 
 
 147' (k) In actions where the Plaintiff seeks to recover jihIkmik nt 
 I debt (0 or liquidated demand in money, (m) the true cause muuI in wr- 
 and amount of which has been stated in the special indorse- 
 ment OD the Writ of Summons (n) or in tho declaration, (o) 
 judgment by default shall be final, (p) 19 Vic. c. 43, s. 142. 
 
 and further, as being "uselerw and injurioua," and its abolition was therefore 
 recommended. 
 
 {k) Talccn from Eng. Stat. 16 i& 16 Vic. cap. 76, s. 03. 
 
 (I) Actions of debt within Stat 8 <b 9 Wm. III. cap. 11, arc not embraced by 
 tiiig enactment : section 148. 
 
 (m) This is an extension of the practice formerly applicable to actions of debt 
 only. Henceforward actions for any liquidated demand, such, for example, as 
 cuvVnnnt or assumpsit, when brought for the recovery of a pecuniary demiind of 
 a liquidated nature, will be governed by that practice. Questions must arise as 
 to when tlie amount sought to be recovered in an action is or is not " a debt or 
 liquidated deman('i in money." One thing is clear that it must be such a demand 
 as can bo computed and specifically indorsed on tho writ or mentioned in the 
 declaration. In his respect the section is analogous to section 17 of Eng. Stat. 
 HA 4 Wm. IV. tap. 42, which empowers the court or a judge "in any action 
 depending in cither of tho superior courts for any debt or demand in wliicli the 
 money sought to be recovered and indorsed on the writ of nummonn, shall not 
 exceed £:i(»," to refer llie cause for triol to the sheriff. Cases decided under tliis 
 statute will greatly aid in the construction of the section hero annotated, and may 
 be conveniently noticed in this place. No case is within the statute unices tlio 
 vholf debt or demand of the plaintiff is of such a nature as miglit be indorsed on 
 the writ of summons: Jacquet v. Bouxr, 1 Dowl. 1*. C. 331 ; JUatufeldw. lirearty, 
 
 1 A. A E. 347 ; PerrtfV. Patchett, 2 Dowl. P. C. 667 ; Lawrence v. Wileock, 8 Dowl. 
 1'. C. 681 ; lioffey v. Shoobridge, 9 Dowl. P. C. 967; Hatton v. Macready, 2 D. & 
 Lfl. See also Goodman v. Pocock, 16 Q.B. 676 ; Fewing»\. Tindal, 6 D. A L. 196. 
 Actions for torts in which the damages claimed must necessarily l)o unliquidated, 
 are clearly not within tho meaning of the act: Wa*Mn v. Abbott, 2 Dowl. P. C. 
 215; Smith V. Brown, 2 M. «b W. 861. No claim tiiat is properly and strictly 
 for unliquidated damages can be considered citlicr a debt or demand such as 
 contemplated : Collit v. Oroom, 1 Di>wl. .'' 8. 496 ; Liamore v. Jieadle, lb. 566 ; 
 Jone» v. Thomas, 6 Jur. 462. But a claim fjutdem generis, with a debt, and sub- 
 stantially of tho sauie nature and character, may be considered as falling within 
 the scope of the statute : Price v. Morgan, 2 M. & W. 63 ; AUeti v. Pink, 4 M. ib 
 W. 140. Thus detinue for example, in which the writ is to recover the specific 
 chattel, or the value thereof, sounding ratlier of contract thon of tort. The sum at 
 vliich tho chattel is valued, confined and limited to a specific amount, may be 
 indorsed on tho writ of summons: Walker v. Needham, \ Dowl. N. S. 220. Cases 
 under tho English bankruptcy acts as to proof of debts are also in point : see 
 Toppin v. J-leld, 4 Q.B. 386 ; Irving v. Atanntng el al, 6 C. B. 391 ; barle v. Olivrr, 
 
 2 Ex. 71 ; 7/1 re Willis, 4 Ex. 630; The South Staffordshire It. Co. v. IturmUle, 5 Ex. 
 129; In re Hall, 2 Jur. N. 8. 1076. See further section 15, and notes thereto. 
 
 'n) No such reference to writs specially indorsed as here made is to be found 
 in tiij corresponding English section. Writs must be specially indorsed pur- 
 suant to section 16, and can only be so indorsed to be effectual in cases where 
 defendant is within the jnrisdiction of tlie courts. 
 
 (») Sec sections 56, 57. 
 
 (/') Actions in which judgment by default is not final are in part provided for 
 by section 161. 
 
200 
 
 THE COMMON LAW PROCEDURE APT. [SS. 143, 149. 
 
 8^' 
 
 
 •J 
 
 I ' 
 
 yviif 
 
 ProvlHlnnii 
 of a ci'Vliiln 
 DritiHli Act 
 of <, Wni. 
 8, i: 11, to 
 reiiiiilii in 
 foruu. 
 
 Writ* of 
 Imiiiiry not 
 
 to IH8I10 to 
 
 Bherin'H. 
 
 148. (9) Notwithstanding any thing in this Act con- 
 tained, the provisions of the Act of the Parliament of Great 
 Britain, passed in the Session held in the eighth and niath 
 years of the Reign of King William the Third, intituled, An 
 Ad /or the better preventing frivolous and vexatious auits,{r) 
 as to the assignment or suggestion of breaches, or as to jud|;- 
 mcnt, shall continue in force in Upper Canada. 19 Vic. 
 c. 43, 8. 145. 
 
 140. (k) No Writ of Inquiry shall issue to a Sheriff in 
 cases of judgment by default, (/) but except in cases where 
 the judgment is final as aforesaid, (u) the damages, when to 
 be assessed by a Jury, («;) shall be ascertained at the saac 
 
 (g) Taken from Eng. Stat. 15 <fc 16 Vic. cap. 76, s. 96. Fonndcd upon the first 
 report of the Common Law Commissioners, section 66. This section, thouzh 
 Bumtnntially the same as the English section whence it is adopted, is not by 
 any means a copy. 
 
 (r) The statute 8 <& 9 Wm. III. cap. II, s. 8, is highly remedial and calcnlited 
 to advance justice and to give relief to plaintiffs, up to the extent of the damngtt 
 tustained and to protect defendants from tlie payment of more than is justly due: 
 Murray v. Lord Stair, 2 B. dc C. 94, ptr Best, J. It tempers the rigor of the com- 
 mon law, which Iiold that in debt on bond the judgment for plaintiff should be the 
 amount of the penalty contained in the bond, no matter how small the damage 
 sustained in consequence of a breach however trivial. The statute has been hek' 
 to bo restricted to actions of debt, the reason being that in covenant and assump- 
 sit there is no penalty that can stand as a continuing security for future breavhes, 
 but only a breach of an agreement for which adequate damages have been awarded: 
 
 1 Wms. Saunders 68, notes b, e, d; Lowe v. Peers, 4 Burr. 2225. A bond con- 
 ditioned for the payment of a sum certain is not within the statute, for in order 
 to ascertain the precise sum due in such a case, computation only is nccessarj, 
 end the intervention of a jury is unnecessary : Murray v. Lord Stair, 2 B. A C, 
 90, per Abbot, C. J. Bail bonds are not within the statute : Moody v. Phtatont, 
 
 2 B. <b B. 446. Plaintiffs are obliged in all cases within the statute to proceed 
 under it: Dragtv. Brand, 2 Wils. 877; Uardy y. Bern, 5 T. It, 636; Holtty. 
 Rosewell, lb. 638. Payment into court cannot be pleaded to the condition of a 
 bond within the Statute of William : see note q to section 99. 
 
 (s) Taken from our old King's Bench Act, 2 Geo. IV. cap. 1, s. 29. 
 
 (t) The writ was directed to the sheriff of the county in which the venue in the 
 action was laid, stating the former proceedings in the action, " and because it is 
 unknown what damages the plaintiff hath sustained," commanded the sheriff, or 
 otlier officer having the execution of the writ, that by the oath of twelve honest 
 and lawful men of his county he shou'd diligently inquire the same, and return 
 the inquisition into court. 
 
 (>() i. e. Where the plaintiff seeks to recover a debt or liquidated demand in 
 money, the true cause and amount of which has been utated in the special endor8^ 
 ment on the writ of summons or in the declaration: section 147. 
 
 (v) There can be no assessment of damages where a verdict is found for the 
 defendant on an issue going to the whole cause of action : Prynne v. Carroll, 
 10 U. C. Q. B. 619. 
 
g. loO] TniALS OF ISSUES OP FACT WITHOUT PLEADINOS. 
 
 201 
 
 time and in like manner as if the parties had pleaded to issue, ynm\ t<> )>c 
 and the entries shall be made on the Rull accordingly, (to) aTuor.' 
 2 Geo. IV. c. 1, 8. 29. 
 
 PROVISIONS FOR THE DETEUMINATION OF QUESTIONS IIAISED BY 
 THr CONSENT OF THE I'AHTIES WITH Oil WITHOUT PLEADINO. (/) 
 
 ItlO. (>/) In case the parties to an action, (,:) after writ Partitu may 
 
 ,,„,, ,. \ /■t-K I nurt'i' tii>i>ii 
 
 jjoucd and before judgment, (a) are agreed (6) as to the ques- mi issi;.- of 
 tion or questions of fact, (<•) tr be decided between them, a try it. 
 Judge, by consent of parties, and upon being satisfied that 
 they have a loud fide interest in the decision of the question 
 or questions, and that the same is or are fit to bo tried, (f/) 
 
 (ir) Tlie assesiimont roll nliould oontnin a copy of tho doclnration, memorandum 
 nf jiid'jnient bv nil dieil, nnd after tliat part of tlio roll which rends "because it 
 \i univiiown what damans tho plaintitf hath susttancd," should contain the ordi- 
 nary memorandum of vtnire to the sheriff. 
 
 (/) Tlie eect'.ons following are founded upon the first report of the Common 
 Law Commissioners, section 22, and are in effect an extension of the principles 
 ronUiincd in Con. Stat. U. C. cap. 22, s. 157, which is a transcript of Euj^. btat. 
 ;! i 4 Wni. IV. cap. 42, s. 25. Parties to an action coiUd only ar .'d themselves 
 of tills statute " after issue joined." Besides, the only provision thereby nmde, 
 is for tnkin<; the opinion of the court upon a point of law without at ul! proceeding 
 or incurring tiio expense of proceeding to a trial of tho facts. 
 
 (v) Adopted from Eng. Stat. 16 <fc 18 Vic. cap. 70, s. 42. 
 
 (2) To an action, Ac, applies to all descriptions of action whether ex contractu 
 
 or (r delicto. 
 
 {a) Parties cannot avail themselves of this section unless and until writ of sum- 
 Diun8 issued ; but if issued, they may avail thmaaulves of it at any time before 
 
 judijincnt. 
 
 (4) Are agreed. An ngreemcnt is defined to bo " aggregatio mentiitm," or the 
 nniiiii of two or more minds on a thiug done or to be done, and is therefore not 
 to lie iiiulvrstood in the loose, incorrect sense in which it is sometimes used as 
 syiKinvmous to promise or undertaking. If either party dissent from tho course 
 |x>intc(l out by tlie section here annotated, there can bv no " agreement." Com- 
 puNory references by order of a judge are in some cases permitted : see section 
 I08 .;( jtcy. 
 
 (r) Provision is made for the disposal of questions of law by section 161 of this 
 
 act. 
 
 {(!) I. e. The question or questions of fact to be decided »tc. The judge before 
 mnkinu; the order must be satisfied that tho parties hav* a bona fide interest in 
 tlic (jui'stion or questions to be decided. The manifest object being to prevent 
 the time of the court being employed in the determination of gambhng, or other 
 tr.in<!iu'tion8 of a like character, in which neither party can be said to have an 
 adonl nnd bona fide interest. "Courts of justice are constituted for tho purpose 
 cf (icciding realli/ existing queationi of right between the parties, and are not bound 
 to answer whatever impertinent questions parties think proper to ask them in the 
 lorni of a wager at law :" Ilenkin t. Quern, 12 East. 247, per Lord EUenborongh ; 
 s<:c also Lord Welletley v. Wither; 4 £1. «k B. 760. Judges in England have 
 
202 
 
 TUB COMMON LAW PROCEDURE ACT. 
 
 [8. 150. 
 
 Form of 
 atatliiKQUca- 
 ticiiis Hint 
 trial of iiMue 
 thereon. 
 
 moy order (e) that such parties may prooeed to the trial 
 of such question or questions of fact without formal plead- 
 ings, (/) and such question or questions may be statrd for 
 trial in an issue in the form (A) No. 8, (//) and the is.suc m;iY 
 bo entered for trial and tried accordingly in the same niunoer 
 as an issue joined in an ordinary action, (A) and the proceed- 
 ings in such action and issue shall be under and subject to 
 the ordinary control and jurisdiction of the Court, as in 
 other actions. 19 Vio- c. 43, s. 77. 
 
 [>r 
 
 
 ordered wngor actions to be struck out of the docket and hove In the most posi- 
 tive terms refused to try such actions: see Jlenkin v. Ouerit, 12 East. 247, and 
 Jiroicn V. Leeion, 2 11. B. 43. It would appear that it is not sufficient for the 
 p^rt'os to have nome interest in the question, tlie miestion itself must bo one really 
 and bona fide in controversy between them : see Doe d. Duntte v. Duntzt, 6 C. B. 
 100. This, like applications under the Interpleader Acts, is discretionar}', not 
 compulsory upon the court: see Belcher et al v. Smith, 2 Moo. «fc S. 184. 
 
 (/) Tlio dispensing with formal pleadings will be a saving of costs to the par- 
 tics, besides being one mode of avoiding the risk of defective pleading. In a case 
 such as intended by this section, in which both parties are agreed as " to the 
 qrestion or questions to be decided," there cannot be any necessity for formal 
 pleadings. The design of formal pleadings is to accomplish what the parties here 
 do by consent, viz., devclopo the subject of decision by the production of au issue 
 or issues, 
 
 (ff) The form of issue given in the schedule is an exact copy of that in the 
 Englinh section. It is not unlike that made use of in interpleader cases. One 
 
 Earty affirms and the other denies, and it is for the jury to decide between tlioin. 
 Ictwcen tli^ proceedings to bo had pursuant to this section and those acces- 
 sary in interpleader cases there is a very strong resemblance : see Con. Stnt. I'. 
 C. cap. 80, wiiich is a transcript of Eng. Stat. 1 A 2 Wra. IV. cap. 58, In some 
 respects the decisions under the interpleader practice will be in point under thU 
 new practice. In framing the special case the parties should be careful to stAie 
 facts as contradistinguished from mere evidence: Palmer v. Johnton, 2 WiU. 163. 
 
 (A) All issues of fact in any civil action, when brought in e'ther of the superior 
 courts of common law or in any of the county courts in Ontario, and every as- 
 sessment or onqiury of damages in every such action, may, and in the absence of 
 notice to that enect shall be heard, tried and assessed by a judge of the snid courts 
 without the intervention of a jury. The notice requirmg trial, assessment or en- 
 quiry by a jury may be given to the court and to the opposite party by any of 
 the parties to the suit. The party requiring the jury must Hie the notice with 
 his last pleading and serve the notice. The parties present at the trial may con- 
 sent to the notice being waived. When the consent is endorsed on the record, 
 the ji'dge is required t^ proceed to the trial of the issues or assessment of the 
 damages without the intervention of a jury. The judge, however, may in his 
 discretion direct that under any circumstances the action shall be tried or dam- 
 ages assessed by a jury. 
 
 The notice requiring a jury may be in this form: — "The plaintiflT, (or one or 
 more of the plaintiffs,) or the defendant, (or one or more of the defendants, as the 
 case may be,) requires that the issues in this cause be tried (or the damages as- 
 sessed) by a jury. A copy of the notice must be attached to the record : Stat. 
 Ont 32 Vic. c. 6, s. 18. 
 
gg. 151, 152.] TRIALS OP ISSUES OP PACT WITHOUT PLEADINGS. 203 
 
 l«SI. U) ^he parties may, if they think fit, enter into an An<i nmv 
 agreement in writing, (k) which shall be embodied in the said nKm'iiK-nt 
 or any subseqncnt order, (l) that upon the finding of the Jury ti).y'nr '!< 
 in the affirmative or negative of such issue or iesues, a sum of tiio're«iiit. 
 money to be fixed by the parties, (m) or to be ascertained by 
 the Jury upon the issue or issues and evidence submitted to 
 them, (n) shall be paid by one of such parties to the other of 
 them, either with or without the costs of the action (o) 
 19 Vic. c. 43, s. 78. 
 
 IM. (/>) Upon the finding of the Jury (q) upon any judKintint 
 such issue, judgment may be entered for the sum agreed or tl'nltand 
 ascertained as aforesaid, with or without costs, (a« the case *"^"""'' 
 
 (;') Tnkcn from Eng. Stat. 16 tb 16 Vic. cap. 76, a. 43. This section appears 
 to a|ii>l,v only to actions where tlie claim is for debt or damages, t. e, some claim 
 fur wliicii compensation in money is demanded. 
 
 (A) Tills provision is by no means compulsory. It is optional for either party 
 
 to (li!!.sent. 
 
 (/) Nut necessary, it seems, to embody the agreement in the issue or Nisi Prius 
 roconl. Tliough it is usual in feigned issues, nominally, at all events, for the par- ^ 
 ties to li.\- some sum of money, which is made to depend upon the finding of the 
 jury for one party or tho other, these feigned issues alleging a pretended wager 
 nre utill legal : see Luard tt al r. Butcher et al, 2 C. 13. 858. 
 
 (w) To be fired btf the parties, Ac. The principle of this provision is not new. 
 It is the same that allowj parties in an agreement to fix a certain sum to be paid 
 by one party to tho other as " liquidnteu dninnges and not as a penalt}'," upon 
 default made in the doing of something stipulated to bo done, dc. 
 
 (h) The venue in this event would be tarn triandum quam inquirendum. 
 
 (o) Either with or without eo»t» of the action. This expression must mean that 
 the mjreeinent to bo entered into between the parties may, as regards the costs 
 of tliu action, stipulate either that they shall or shall not follow the result of 
 tlic trial. In case no agreement bo entered into as to the costs, they will follow 
 the event: section 166. In A special case stated under the Eng. C. L. P. Act, 
 18.")2, section 46, (s. 164 of ours,) the plaintiff claiming two sets of fixtures, tho 
 court gave judgment in his favour for tho one and for the defendant os to tho 
 other, and no agreement having been made between the parties as to costs, ruled 
 that the plaintiff was entitled to the general costs of tho proceedings, and the 
 defeiuhuit to whatever costs he could satisfy tlio master had been incurred solely 
 ill respect of tliat part of the case in which he succeeded. The defendant subse- 
 quently brought error on the judgment, but so far from succeeding the court of 
 error reversed that portion of the judgment which was in his favor and gave 
 jnil};ment for the plaintiff for the whole, but with no direction as to tho costs 
 vl:icli the court below had directed to be taxed to the defendant, and held that 
 ilic court be'ow had no power after the partial reversal of their jiidgment to order 
 those costs to be taxed to the defendant: Elliott v. JJithop, 10 Ex. 622. 
 
 (/)) Taken from Eng. Stat. 16 A 16 Vic. cap. 76, s. 44. 
 
 (y) See note h to section 160. 
 
204 
 
 TnB COMMON LAW PROCEDURE ACT. [88. 158, 164. 
 
 i>^ - 1 
 
 ^- 
 
 IhiumI, ftr. , 
 il|Hiii the 
 flncling. 
 
 PriwocilliiKii 
 limy be II'- 
 cunii-il, &p. 
 
 EfTcct of 
 JuitKiniMit. 
 
 P«rtlt!ii may 
 ■Kr«cu|H)iin 
 
 may bf,) and execution may issue upon such judgment forth- 
 with, (»•) unleu otherwise agreed, («) or unless the Court or 
 a Judge otherwise orders for the purpose of giving either 
 partj an opportunity for moving to set aside the verdict or 
 for a new trial. (<) 19 Vic. c. 48, s. 79. 
 
 I«S3. (m) The proceedings upon any such issue (i») may 
 bo recorded at the instance of cither party; (w) and the 
 judgment, whether actually recorded or not, shall huvo the 
 sanio efTcct as any other judgment in a contested action. (/) 
 19 Vic. 0. 48, 8. 80. 
 
 Itl4* (y) The parties may, (z) after writ issued and be- 
 
 (r) The form of execution need not, it is apprehended, vnry from furiiis in 
 common use. As to executions generally, see sections 2S8, 289. 
 
 {») As to wlien parties can be said to have agreed, see note b to section 1 50, 
 
 (0 One object tiiat a judge might liaye in refusing to allow execution forth- 
 witli, would be " to allow either party an opportunity for moving to set aside the 
 verdict or for a new trial." If the cause were tried out of term, then the niotioD 
 for a new trial or to set aside the verdict would require to be within the first fuur 
 days of the term following such trial : R. 6, pr. 40. The courts liave refused to 
 allow the motion after the expiration of the four days: see Oner v. Siickler, 
 Tay. U. C. R. 42. The new rule is most express to the same effect — " No mo- 
 tion fur a new trial, Ac, thall be allowed, after the expiration, &c. :" R. O. pr. 40. 
 The analogy between proceedings here mentioned and an arbitration fails, be- 
 cause an arbitrator has no power to order a verdict to be entered up unless 
 expressly authorized. In ordinary cases a provision is made that the arbitrator 
 shall bo at liberty to enter a verdict, and that no error shall be brought. If the 
 clause be omitteu in the submission, it will be presumed that the parties did not 
 intend to give that authority to the arbitrator nor any power beyond that uf pro- 
 ceeding by attachment for non-performance of the award : Ilulchinton v. Black- 
 mil, 8 Bing. 33S, per Tindal, C. J. 
 
 (u) Taken from Eng. Stat. 16 (ft 16 Vic. cop. 76, s. 45. 
 
 (v) Our Interpleader Act enacts that all rules, matters, orders, and deciiiiuns to 
 iBirmade and done in pursuance of this act, except only the affidavits to be tiled, 
 may, together with tQa,.fleclaration in the cause (if any), be entered of record, 
 dtc, with a note in the margin expressing the true date of entry : Con. Stat. U. 
 C. c. 30. 8. 14. 
 
 (to) Where a judgment on an interpleader issue was entered up in the ordinary 
 manner instead of having been recorded as the act directs, such judgment was set 
 aside: see Dickinton v. Eyre, 7 Dowl. P. C. 721. 
 
 (z) SatM effect at any other judgment, Ac. Qu. Would an appeal from such t 
 judgment lie to the court of error and appeal: see Snook v. Mattock, 6 A. <t E. 
 289; King v, Simmondi et al, 7 Q. B. 298; Thorpe v. Plowden, 2 Ex. 387; VlUm 
 V. Kerr et al, 18 U. C. Q. B. 470. 
 
 (y) Taken from Eng. Stat. 16 <fc 16 Vic. cap. 78, b. 46. 
 
 (z) May.— ^ot imperative: Con. Stat. U. C. c. 2, 8. 18; sub-s. 2. 
 
154.] 
 
 SPECIAL CASE WITHOUT PLEAD S. 
 
 205 
 
 foro judgment, (o) by consent and by order of « Igo, (4) Jjl'Tj','' '^'^ 
 without any pleadings, (e) state any question or quc8< ituuuinga. 
 tions of law (</) in a special case fur the opinion of the 
 
 (a) See note a to section 1 50. 
 
 (b) Xu special case could, under the old proctioe, be set down without leave : 
 The Kennet and Avon Navigation Co, y. O. W. Railway Co. 2 D. «& L. 1 16. 
 
 (c) It is clear that this section only enables the parties to state a question 
 witliout pleadings which they might have raised with pltadingt, but docs not 
 entitle them to ask a question on speculation : Lord Welletley v. Withtrt, 4 El. 
 & li. 7<^U, ptr l^arke, D. The court, it seems, may refuse to answer a question 
 stated fur their opinion unless it relate to something for which an action wM 
 lit: lb. There would be no object in requiring the case to bo statud "after 
 writ," unless the section were limited to a question to which a writ might apply : 
 Ik per Crcsswell, J. Where under the old practice a judge at niii pnui refused 
 to try a wager case on an appeal to the full court asainst his decision, it was 
 iU|)|Hirted: lien kin v. Outrti, 12 East. 247. Lord Ellenborough remarked that 
 aklioti|rh there was nothing immoral in the tuhjeet of the wager, yet he considured 
 tlie proceeding as an extremely impudent attempt to compel the court to give an 
 o|)inion upon an abstract question of law, not arising out of pre-existing circum- 
 gtances in which the parties had an interest: lb, 248; see also Doe a. Duntte 
 V. Dunize, 6 G. B. 100. Where it is intended to take the opinion of a court upon 
 points of law it would appear to be necessary for the parties to adroit all facts 
 necessary to raise these points. The courts have refused to hear special cases 
 framed under Eng. Stat. 3 ife 4 Wm. IV. cap. 42, s. 26, where it was expressed 
 therein tliiit the court should draw all necessary inferences as might be done by 
 a jury, witli liberty to eitlier party to turn the special case into a special verdict: 
 sec Engttrom v. Brightman, 6 C. B. 419; Coekt t. Purday, 6 C. B. 69. If the 
 parties desire to escape the costs of a trial of issues upon pleadings, their proper 
 course is to state a cose under section 150 of this act. An amendment of the case 
 stated may be allowed when necessary : see Lord Welleiley t. Withers, 4 El. & 
 B. 760,;»er Jervis, C. J. 
 
 (d) Questions of fact may without pleadings be stated in the form of a special 
 case under section 150. Questions submitted to the court under the section here 
 annotated must be of law unmixed with fact. If matters of fact necessarily enter 
 into the consideration of the questions, the court may order a trial of them : see 
 Aldridge v. The 0. W. Railway Co. 1 Dowl. N. S. 247 ; also see Broekbank v. 
 Anderion et al, 13 L. J. G. P. 102. In one case the court decided questions of 
 fact " without thereby intending to create a precedent :" Price et at v. Quarrell 
 tt al, 12 A. <b E. 788, per Denman, G. J. In another case the court granted a rule 
 niti for defendant to admit certain facts necessary to raise the questionn stated in 
 a s]iecial case: Buckle v. Bollii, 2 Ghit. R. 898. The court will not go behind a 
 sperini enae in order to inquire what took place before the case was signed : see 
 tike v. Carter, 3 Bing. 87. Where therefore in a special case after trial under the 
 old practice, judgment was given for the defendant on a supposed state of facts 
 collected by the court from a document appended to the case, but in truth the 
 reverse of the real facts, the court refused to stay proceedings or reconsider the 
 case without defendant's consent. They persisted in the refusal, notwithstanding 
 it was made to appear that a statement of the real facts was contained in the case, 
 when agreed on l)y the defendant's junior counsel and engrossed and signed by 
 tite plaintiff's leading counsel, but afterwards struck out by the plaintiff's counsel 
 because not enumerated in a collection of facts agreed on at the trial of the cause 
 with a view to the special case : 2b. 85. Unless expressly authorised by the par- 
 ties, the court will not infer the existence of material facta not stated from other 
 
206 
 
 THI COMMON LAW PUOCEDURE ACT. 
 
 [H. 156. 
 
 Court, (e) 10 Vio. o. 43, s. 81. 
 And m«y tSti, (/) The parties may, if they think fit, enter into 
 
 *{fV,',Vto|!uy ■" "grecnient in writing, (</') which shall bo embo«Hed io the 
 "o^'inK''ui 'foresaid or any subsequent order, that upon the judgment of 
 uiHiii'iim'ii'" ^^^ Court being given in the affirmative or negative of the 
 c««o, &o. question or questions of law raised by such special case, a 
 sum of money (/i) fixed by the parties, (i) or to be aacer- 
 tained by the Court, or in such manner as the Court maj 
 
 |HH|H11: 
 
 l^lliif 
 
 ''IJKCI^^^K'' '' '*'k' ■] 
 
 i9l«raHHi''^iliiii 
 
 M|kK$ »fl^^^^V*^H:5)^^^H 
 
 Iwllnffiifl^^H' 
 
 h^^l^^H^^^E^BB^^^B 
 
 HHHi 
 
 'JraM^^^Hf^kt''^ ^i'yS 
 
 'HH^^^HL! "'' ^ '1 
 
 ■HI^^^^^^BHIJ^^H 
 
 facto stated in tlie specinl case: Dot d. Tat/lor tt al v. Cri»p, 8 A. ifc E. 797. If 
 an award be part of tiie case the court will not, it seems, allow facts to be argacd 
 wliicli are not stated on the face uf the award : Tayltr v. Marling tt al, 4 Jur. 
 1161. And the court will not in gonorni allow the case to bo amended unle« 
 upon consent of parties : see Tht Mtriry Dock and Harbour Conmittiontrt y. Jonti, 
 29 L. J. C. P. 239; Notman tt al v. Tht Anchor Atturanet Co. 6 C. B. N.S. 68«; 
 Oanthonyy. Witttn, 17 L. T. N. 8. 117; see however Carpenter v. Parker, SC. 
 B. N.S. 206. 
 
 («) The case should, it is apprehended, bo signed ; especially aa it may be stated 
 immediately "after writ" and when there are no pleadings in tho cause. Upon 
 the authority of Price tt al v. Quarrtll tt al, A Jur. 004, s. c. 1 1 L.J. Q.B. 84, it is laid 
 down in Chit. Arch. 12 Edn. 468, that " it is not absolutely necc-'iry that tho cue 
 phould bo signed by counsel ; but that anything which sliov consent to a cue 
 as stated is sufKuient." The authority cited does not fully bear out the dictum 
 In the Juritt Lord Denman is reported as having said " The practice is that any- 
 tiling which shows consent to a case, <bc." but in tho Lnw Journal his words are 
 very ditTercntly reported: "I am informed that according to the practice any- 
 thing which evinces the content of counsel tu tho case is sumuient," kv. The li'g. 
 nature of plaintiff in person, who intended to argue bis own case, though he had 
 a counsel retained, has been held sufficient: Vdnty v. Tht East India Co. 13 C. B. 
 742. The Cominou I'lcns in one case refused to receive a special case from chan- 
 cery without tho signature of counsel, though signed by the master in chniicery, 
 who settled the case: Jioy v. Champntys, 8 Dowl. P. C. 106. A verdict was taiiea 
 by plaintiff subject to a special case to be prepared by a barrister. The case wu 
 accordingly prepared, but defendant refused to procure tho signature of his conn 
 ael thereto. A rule was thereupon issued that unless defendant within a week 
 caused the case to be settled and signed by counsel, the ^o«f<a should be delivered 
 to plaintiff: Dot d. Phillips y. Rollings, 2 C. B. 842 ; also see Jackson tt al v. 
 Hall, 8 Taunt. 421. Under somewhat similar circumstances the court allowed a 
 cose to be sot down without the signature of defendant's counsel : Price tt al v. 
 Quarrtll tt al, 6 Jur. 604, s. c. 11 L. J. Q. B. 84. See a case set out at length in 
 Lord Wellttlty y. Withers, 4 EI. d B. 760. 
 
 (/) Taken from Eng. Stat. 16 <b 16 Vie. cap. 76, s. 47. 
 
 (<;r) Form of agreement see Chit. F. 10 Edn. 468. 
 
 (A) The judgment contemplated by this section appears to have reference to 
 money demands or demands for which satisfaction in money it sought, and not 
 to actions for the recovery of property, real or personal. Only actions which 
 operate in personam are embraced; actions in rem and proceedings auxilliary 
 thereto are not contemplated. If the enactment had gone further it would be in 
 accordance with the report of the commissioners, wno recommended that the 
 judgment should " be moulded to meet the circumstances of each particular case": 
 see first report, section 22. 
 
 (t) See note m to section 161. 
 
8. 15C.] 
 
 COSTS OF SPECIAL OASIS. 
 
 207 
 
 direct, Hhull bo |^aid by one of such partioa to tho other of 
 them, either with or without costs of tho action, {j") and tho 
 ja(]f;ment of the Court may be entered for any sum so fixed 
 or ucertaioed, (k) with or without costs, (at the ea$e may 
 ht,) and execution may issue upon snob judgment forth* 
 with. (0 unless otherwise agreed or unless stayed by proceed* 
 \np in error or appeal, (m) 19 Vic. c. 43, s. 82. 
 
 136. (n) In case no agreement be entered into as to cnuwhiu 
 the costs of any such action, (o) the costs shall follow the «p«iMviit 
 event, (/)) and be recovered by the successful party, (j) * "' """ 
 19 Vic. c. 43, 8. 83. 
 
 thoin. 
 
 (j) If thoro be no directions as to costs tliey may abide the event of tlie suit: 
 ttetlon 156. 
 
 (k) Ju(]|;mGnt may bo entered and execution issued from the office in whicli 
 first process was sued out: section 246. 
 
 (/) As to the issue of execution, see section 2S8 tt teq. 
 
 (m) Vnleu itaytd hy procttdingt in trur or appeal. Tlio implication is that 
 prnccedings in error or appeal may be had uiton a special case submitted to and 
 ndjudioated apon by the courts under this section, and that when such proceed- 
 iiii;s are had execution shall be stayed in ttie court below. Tho words used 
 are "error or appeal." " Error," strictly speaking, relates to matters of fact as 
 wril M law. Error may bo brought on a single point in a case leaving tho re- 
 niaiiulfr of tho case in the court below. But nn appeal intends the removal of all 
 prucvedlngs from one court of inferior jurisdiction to anotlier of appellate and 
 superior jurisdiction. No writ of error lies to any other than a court of record. 
 There may be an appeal from any inferior court, though not of record. Thus 
 we Bpeali of an appeal from a magistrate to the quarter sessions. Error besides 
 only lies to impeach a judgment in its nature a record of tho lower court. Tho 
 crriir to be brought under this section must be upon a matter of law, but no ex- 
 press provision is made for entering the proceedings of record. With respect to 
 matter!) of fact there is such a provision : section 163. The enactment of the pro- 
 viiiion ill the one case and the omission of it in the other leaves the intention of 
 the legislature ambiguous : see Thorpe v. Plowden, 2 Ex. 887 ; Ilughei et at v. 
 Lumley tl al, 4 £1. & B. 858. 
 
 (n) Taken from Eng. SUt. 16 <b 16 Vic. cap. 76, s, 48. 
 
 (o) Suck action, i. e. the action first mentioned in section 150 of this act. " In 
 ctee the parties to iin action," dec. This provision is enacted with especial refer- 
 ence to cases upon questions of fact under section 15i), and the agreement to bo 
 entered into in respect thereof under sectiou 161. As also to cases upon ques- 
 tions of law under sectioa 164, and the agreement to be entered into in respect 
 thereof under section 155. 
 
 (p) Where nnder the old practice the parties agreed to state a special case 
 but made no provision for costs, and though the case was drafted it was never la 
 fact agreed upon, the costs of such abortive case were held not to be costs in the 
 cause: Foley v, Sotfield, 16 M. «fc W, 65. 
 
 (y) Sueeeiiful party. Who is the " successful party " within the meaning of 
 tliis section when both parties succeed — plaintiff as to part and defendant as to 
 
208 
 
 THE COMMON LAW PROOEDUEE ACT. [88. 157, 158. 
 
 I 
 '1' , 
 
 
 t \ Cf 
 
 \ 
 
 
 L 
 
 f 
 
 
 ■ 5?L 
 
 >"od!'the ^•'^' (*■) ^^^ '^^^^ joined («) in any action or informa- 
 
 ^'"cifu'on^ tion, (/) the parties may, by consent and by order of a Judce 
 
 cMrfo?the °^ *^® Court in which the action is depending, (u) state tke 
 
 ti''"c""rt^ ^^'^^^ °^ ^^^ ^^^* ^° *^® ^*^'™ °^ " special case, for the opinion 
 
 of the Court, (v) and agree (tc) that a judgment shall be 
 
 entered for the Plainti£f by confession, or for the Defendant 
 
 of Nolle Prosequi, immediately aftdr the decision of the case. 
 
 or otherwise, as the Court may think fit, and judgment shall 
 
 be entered accordingly, (x) 7 Wm. IV. c. 3, s. 17. 
 
 PROVISIONS FOR THE MORE EXPEDITIOUS DETERMINATION OF 
 MATTERS OP MERE ACCOUNT, (y) 
 
 part ? Certainly the party who succeeds upon the real and substantial isstie tliat 
 involves the cause of action. If there be several issues, some decided for plaintiff 
 and some for defendant, and those for plaintiff entitle him to recover his debt, 
 damages, or property, or any part thereof, he will be entitled to the general costj 
 of the cause. So, vice versa, if the issues found for defem'n.nt go the whole cause 
 of action: see section 110 of this act. In a special case stated under the prece- 
 ding section plaintiff claimed certain fixtures being trade fixtures and tenant's 
 fixtures. As to the former he succeeded, but as to the latter he failed. No pro- 
 vision was made for costs. Htld that plaintiff was entitled to the general costt 
 of the cause, and defendant to the costs of the part found for him, which in trutii 
 were nothing : Elliott v. Bishop, 10 Ex. 622. 
 
 (r) Taken from our old statute 7 Wm. IV. cap. 3, 8. 17. The origin of which 
 was Eng. iStat. 3 <& 4 Wm. IV. cap. 42, s. 25. 
 
 («) After ittue joined, ttc. The preceding sections, 160 and 164, when appli- 
 cable, enable the parties to state the special case after " writ issued." 
 
 (t) Includes actions for tort as well as on contract, and, not only so, but 
 embraces informations as well as actions. 
 
 (m) Qu. May not the order be made by any judge in chambers, though not of 
 the court in which the action is pending : Con. 8tat. U. C. c. 10, s. d. 
 
 (v) The form may be that in form (A.) No. 8, mutatis mutandis. 
 
 {w) Agree. See note 6 to section 160. It is not stated here that the agree- 
 ment should be in writing, but it is presumed that a written agreement is 
 intended. 
 
 (x) In other words, the agreement as to the form of the judgment shall be 
 carried out. 
 
 (y) The Common Law Commissioners, in their report, observed that there was 
 a large class of cases in which the iiicervention of a jury was positively mischie- 
 vous, from their inability to deal with such cases. Of this class of cases matters 
 of " mere account" form a very great portion, 'the inability of juries to deal 
 with claims of this nature has in modern times manifested itself in a manner 
 most convincing by the frequent verdicts taken subject to references to arbitra- 
 tion. This appears to have been the natural and most convenient chacuel 
 through which to conduct such cases to judgment. The legislature, mcinv^ upon 
 the principle that each court should have complete jurisdiction in matters uf j 
 which it has cognizance, has in the enactments following widened the oliannel 
 and thus adapted the machinery of the common law courts to the wanta uf ; 
 
 BUltOfB. 
 
s. 158.] 
 
 HEFERRINQ MATTE^IS OP ACCOUNT. 
 
 209 
 
 138. (^) If a' ''"y t>™G after the writ has issued, (a) it The. court 
 be, upon the application of either party, (6) made to appear tiu! n'piiika" 
 to the satisfaction of the Court or a Judge, (c) that the mat- titi"on.arty, 
 ters in dispute consist wholly or in part of matters of mere tuJ'^'wiilae c.r 
 account, (d) which cannot conveniently be tried in the ordi- *"yi"»'""" 
 
 Iz) Taken from Eng. Stat. IT A 18 Vic. cap. 125, s. 3. Founded upon the 
 second report of the Comniou Lnw Coinmissiouurs, section 2. 
 
 (a) The section only npplica to cases where 'nn action or suit has been com- 
 menced liy writ : Bradford v. Maniivjhain, 3 F. &. F. 88. 
 
 [h) Tlie application of course must be by affidavit. As either party raoy opplj', 
 (ind 08 the opplicntion if successful may materially affect tlio rights of the oppo- 
 site party, the party to bo affected should Imve notice of the proccdings before 
 order made. A summons or rule to show cause is necessary. 
 
 [c] Tiie Eng. C. L. P. Act extends to courts of equity : In re Ailkcus, 6 W. R. 145, 
 
 ('/) 7'linl the matterit in dhpiite connist wholly or in purt of mere matterit of account. 
 Tiuse words are susceptible of two modes of interpretation — 1. Eitlier " tliat 
 R-lieiv the matters in dispute consist wiiolly of aii'tters of account, tiie whole may 
 be referred, and tiiat wlu're it consists in part of matters of mere account, sucii 
 /)(!)•( oidy may bo referred ;" or, 2. "That wliere tlii' matter in dispute consists 
 wlidlly or in part of matters of mere account, tlie reference may l)e either of tho 
 wliiile matter in dispute or part only, as the court or judge may think fit." Tho 
 latter appears to be the true construction. The matter to be decided or referred 
 is tiie tmlkr in dinpule and not the nvitter ofmrre account, of which the matter in 
 dispute may consist: Browne el al v. Emerson, 17 C. B. 3t>l. Where therefore the 
 diiiin la a cause consisted of a long account for goods sold, money paid, «fee., and 
 liie defendant had a similar set-off, the court ordered the ii<h''le ctune to bo 
 referred, although some of tho items on each side were disputed between tho 
 parties, and so were not mere matters of account but of liiiUility; Ih.; sec! also 
 Rttce V. Chnffers, 11 \V. R. 307. When a case consists of simple items of accoiiiil 
 to be proved, and the question in dispute is only the amount, it is proper tliat 
 there should be a reference under this section: Ainjell v. Filqai''., 5 L. T. X. S. 
 Zi'l: J\Uy. Addison, 2 F. A F. 291; Goodrcd v. Sm'/e, 2 F. .t'F. 382; B'f/'/'liit/ 
 V. l',,nhimk, 10 C. R. N. S. 61 ; Credin v. Credin, 3 Ir. Jur. X. S. 2,52. " Tho 
 rase does not cease to be ft matter of account because one party seeks to iin- 
 jniiin the correctness of tho account on the ground of fraud : Insnll ct n.r. v. 
 Mmjm, 3 C. B. N. S. 350 ; Lnhof et nl V. Sutlon, L. R. 2 C. I'. 40t). An acti-in 
 bv an eiifjineer for professional services, depending partly on his right to coin- 
 iiiissiiin and i)artly on the [)ropriety of charges for work doiie, was ret'errcd 
 under tliis section: Miirrtn/ v. The SwuUrlanl nock Co. 1 F. it F. 179. In sucli 
 a case a cross claim for security may also be referred: Jums v. BctHinont, 1 F. tfe 
 }'.M>\. Where the (piestion was the right to dismiss a servant and not merely 
 the ainnnnt to be paitl for wages, there should be no refereiuH' : Smith v. At/m, 
 ■i F. (t F. \M; see further McDonnellx. Jameson, 2 Ir. Jur. N.S. KM); Prior v. 
 hrni. 2 Ir. Jur. N.S. 422. It is not everif ea^e involving in ]iart miitt(M's of inero 
 M'cinint tliat (.tight to be referred under this section. The rule is well laid down 
 in the case of The Taff Vale Railwuy Co. v. Nizon el nl, 1 II. '■.. ( 'as. 1 1 1, and was 
 i'r'ilmldy the origin' of the section under consideration. Tlie court refused to 
 rtfir (111 action ngain.st the drawer of a bill of exchange fis a matter of mere 
 awount; Peltatt v. Markwich, 3 C. B. N.S. 7iiO. If it appears to the court that 
 I'.ilindniit intends to set up defences wholly inilependeiit of mere mn" jrs of 
 aauuut, which defences should be disposed of by a jury, no reference will be 
 
 3ir 
 
210 
 
 TQE COMMON LAW PROCEDURE ACT. 
 
 [8. 158, 
 
 
 fit 
 
 J* 
 
 n. Si a 
 
 F 1 
 
 i 
 
 an Arbitra- 
 tor, Offlcer, 
 or Ciiuuty 
 Judjsf. 
 
 nary way, (e) the Court or Judge may, upon such applies. 
 tion, if they or he think fit, decide such matter in a summan 
 manner, (/) or order (y) such matter, cither wholly or in 
 part, to bo referred to an Arbitrator appointed by the par- 
 ties, (/*) or, in cases in the Superior Courts, to an officer of 
 the Court, (i) or in country causes, in the Superior Courts, (;') 
 
 made under this section : Evans t. Jackson et al, 3 U. C. L. J. 88. If the matttf 
 in tlispute does not consist of matters of mere account within the section, and an 
 ordiT be mnde for a reference, the remedy is by application to the court or the 
 judge to have the order set aside: Ctimmiiis v. Birkett, 3 H. 4 N. 1C6. Unlesj 
 the party complaining lias by his conduct waived his right to move against the 
 order: Barton v. IfuOerlus, 16 U. C. C. P. 440; Newman v. The Niagara DlUnd 
 JJvtual Fire Inmr. Co. 26 U. C. Q.B. 435 ; Jiingiandv. Loumdes, 10 Jur. N. S. 85ii; 
 Davies et al v. Price, 11 L. T. N.S. 203. When once an order has been made under 
 this section the referee is bound to decide the case as an arbitrator, according 'o 
 all the ordinary modes: Jmnll et ux. v. Moojm, 8 C. B. N.S. 369. In cases winre 
 the amount of damages sought to be recovered is " substantially a matter of cal- 
 culation" there is an entirely different mode of procedure: see section 161 oftliij 
 act. As to the duty of an attorney to avail himself of the provisions of this sec- 
 tion when applicable: see Chapman v. Van Toll, 8 El. & B. 396. 
 
 (f) This section iz made to include casos "which cannot be conveniently trKila 
 the ordinary way" : see Pellatt v. MurkweU, 6 W. R. 264. No new right is giveD, 
 but a new mode of procedure is enacted for the more convenient trial of such 
 cases. It is for the court or a judge to decide upon the convenience or inconve- 
 nience of the " ordinary way " of trial ; the decision when mnde being conipiil- 
 sor}- upon the parties. The section cannot be held to apply to a case cameJ 
 down to trial in the " ordinary way." Section 160 gives power to deal with such 
 a cose, and though the wordt, of the section under consideration are not restrictive 
 as to the time of application, j'et if it could be made to a judge in chambers after j 
 the cause is entered for trial, it might lead to great confusion in jjractice. Tnkinj 
 therefore the two sections together, the most reasonable construction to put v.\m 
 them is that the legislature intended that the judge having possession of the j 
 record at nisiprius should be <Ae judge to deal with it: see Shaev. O'Keil, 2U.C. 
 L. J. 229. 
 
 (/) If the court or a judge undertake the burden of deciding the case in i 
 "summary manner," the ordinary aHidhvit will not be sufficient. All thefuctij 
 necessary to be known to a just decision must be laid before the court. 
 
 (g) The order should not embrace "all matters indifference:" Kendilttali.l 
 JUerrett, 18 C. B. 173. 
 
 (A) An arbitrator so appointed should it is apprehended govern himself by Ji«l 
 
 Eractico relating to arbitrations and the proceedings upon such reference slionldl 
 e conformable to the established practice in such cases: section 163. Piiiintiffj 
 who brought an action against defendant for the amount of a bill of costs incbaa-l 
 eery and who had signed judgment by default, applied for a reference to the niu-l 
 tor ; but upon request of defendant's counsel the reference was made under thai 
 section to an arbitrator skilled iu chancery costs: Dvggan v. lirighl, 2 lAf 
 L. J, 211. 
 
 (j) An officer of the couri:, if appointed, must of necessity have all the powers^ 
 an arbitrator as regards the attendance of witnesses, production of evidence, itc I 
 
 {j) Causes in which the venue is laid in the county of York ore town causf 
 AU utbera ere country causes : see section 226. 
 
8.1o8] 
 
 BEFEURINO MATTERS OP ACCOUNT. 
 
 211 
 
 to the Judge of any County Court, (I;) upon such terms ns 
 to costs and otherwise as such Court or Judge thinks reason- 
 able ; (I) and the decision or order of such Court or Judge, Enforcing 
 
 uuiv ) V.V ^ o J 8,1,.], order 
 
 oT the award or certificate of such reforce, may be enforced <"• 'i«'ision 
 
 1 /. 1. i. X 1 undent. 
 
 by the same process as the finding of a Jury upon the matter 
 
 [k) Jadijt of any county court. The exact import of these words, when the 
 venue is laid in one county and a reference is sought to tiie judge of a different 
 county Ima been under consideration. In an action in which the venue was laid 
 in the county of A, application was made by plaintiff for a reference to the judge 
 of B, in which county the principal witnesses of plaintiff were resident, but held^ 
 ptr liurus, J. that a reference could not be made to any other judge than the on« 
 in whoso county the venue was laid, unless by consent of parties : Cotton v. 
 ilcKemie, 2 U. C. L. J. 214; see also McEdward v. McEdward, 3 U. C. L. J. 76. 
 It is presumed that upon a reference to a judge of a county court under this 
 mtion, he would be empowered of himself to decide all matters both of law and 
 of fact that might arise out of the case before him. In a reference of a building 
 contract, it was held that the referee might, without the consent of parties, send 
 a 8urrc3'or to view the work, in order to inform his mind as to the work done, 
 ic.but not to the exclusion of the witnesses of the parties: Oray v. Wilson, 
 L k. 1 C. p. 50. The judge to whom the reference is made is bound to act on 
 tlie reference: Cummins v. Birkett, 3 H. iSc N. 166 ; Inaull et ux. v. Moojen, 3 C. B. 
 X S. 361 ; Clark v. Ware, 17 L. T. N. S. 144. In references under this clause 
 ttie position of the referee and of the court appears to be the same as in case of 
 Mereiice by consent : see Uogge v. Burgess, 3 II. «fc N. 293 ; Uodgkinson v. Fernie 
 [ itnl, 3 C.I}. N.S. 189; Bayuelly v. Marthwick, 4 L.T. N.S. 245; Gibbon v. Parker, 
 
 L. T. N.S. 684. 
 
 lij An order made under this section, but silent as to costs, does not confer 
 
 I upon tho arbitrator any power to deal with the costs : Bell v. Postlethwaite, 33 L. 
 
 UEq. 131. If the parties mean to give such power they should provide for 
 
 jit in the order: see Leggo v. Young et al, 16 C. B. 635, per Maule, J. As to tho 
 
 Iforni of order now used in England as regards costs, see 16 C. B. 635, note. 
 
 jWlnre under this section a " cause " was referred but no provision for costs 
 
 liriadc' in the order, and it was awarded " tha'. the defendant should pay to the 
 
 Ipljintirt' .€159 0». 9rf. in full of all demands in the above-mentioned action." 
 
 \Mi that the master could not upon the award tax to plaintiff either the costs 
 
 lof the cause or of the reference, in addition to the sum specifically mentioned 
 
 p tiie award : lb. It was also held that a letter written to the plaintiff by 
 
 p umpire who made the award (in which letter he expressed an opinion that 
 
 Ihe costs of the action and of the reference should be paid by defendants, and 
 
 Uat he would have so ordered, but that he could not do so, inasmuch as tho order 
 
 kas silent as to costs,) could not be referred to as part of the award so as to give 
 
 |laintiir a right to the costs : lb. Although the rule or order be silent as to 
 
 lOito, the court or judge has still power to reform the rule or order by inserting 
 
 I clause providing for the costs nunc pro *unc, and then the costs will follow 
 
 sordiiig to the just and ordinary course ot law : Bell v. Postlethwaite, 33 L. <fc 
 
 ^ISl, Where plaintiff having obtained an order for a reference to the master 
 
 Bder Eng. C. L. P. Act, 1864, e. 3, and the master declined it, and plaintiff there- 
 
 ^in obtained an order to rescind the former order and proceed to trial, held that 
 
 J fas not entitled to costs in these proceedings as costs in the cause : Gribble y. 
 
 fvkancin, 18 C. B. 691. Where by the terms of an order granted under tlio 
 
 ^^"^' the costs of the reference are directed to abide the event, and the event 
 
 lien caus^s^Kf'^'y."' ^ivor of plaintiff and partly in favor of defendant, no costs are paya- 
 
 ^* ou either side : lb. Though the reference be to a county judge, the costs 
 
212 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 159. 
 
 
 
 ii 
 
 
 
 referred, (m") 19 Vic. 
 See 8 Vic. c. 13, s. 47. 
 
 c. 43, 8. 84 ; 19 Vic. c. 00, s. 10 
 
 ItSO- (») If it appear to tho Court or Judge that tiie 
 allowance or disallowance of any particular item or items (o) 
 ia such account (;>) depends upon a question of law fit to le 
 
 before the referee are not for that reason to be taxed on tlio county court scale; 
 Edii-xrih V. Eltvards, 6 C. B. N. S. 536 ; see also Wheatcroft v. Poller, 27 L J. 
 Q R. 277. But where the amount of tlie award is witliin the pecuniary jurisJic- 
 tioii of an inferior court, in the absence of a certificate for full costs inferior coun 
 coats only can be taxed : see Smith v. Edge, 2 II. &, G. 659 ; Cowelt v. The Ammn 
 Collien/ Co. 6 B. <fe S. 333; IloberUon v. SUrne, 13 C. B. N. S. 248; Moort^ 
 Watson, 2 L. R. C. P. 314. 
 
 (m) Tlie decision may bo enforced by the same process o& the finding of ajiirr 
 upon the matter referred, and this ai.i)ears to exclude the idea that it can be en- 
 forced in a summary or other than the ordinary mode : see Talbot v. Fiiher, 2('.B. 
 N. S. 471. A letter from tho arbitrator contemporaneous with the award isii) 
 jiart (if his decision or award : llolyate el nl v. Kdlick, 7 II. &, N. 418. Jiul|Tnieiii i 
 iimst be siijjned before the issue of a fi fa. to enforce the award : Kendil el al v, Jfc- 
 reit. 4 \V. 11. 594. A case, though referred under this section, remains under the I 
 control of the court: Edwards \. Edwardu, 6 0. B. N. S. 536; and therefor;! 
 amendments may be made : Gibhs v. Knightly, 2 II. ife N. 34 ; Thompsell et k.'.t. [ 
 il'jwi/er, 9 C. B. N.S. 284; and a court of equity may entertain a bill for discovery 
 in aid of an arbitration had under this seolion: British Empire Shipping Co. i.\ 
 Somes, 29 L. T. Rep. 178. 
 
 (n) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, 9. 4. 
 
 (o) It will be observed that this section supports the law as explained in noxl 
 0? to the preceding section, and in wliich a distinction was inado betweon tli«j 
 mutters iu dispute and more matters of account, of which the matters in dijimtej 
 luiiy iu wliolc or in part consist. If the liability to pay the items or an iteino 
 the phiintifFa claim bo brought in question, it is manifest that tho items sodi-J 
 l)uted are no longer " more matters of account." Tho liability to pay the itemj 
 is one tiling, tho liability admitted or proved, the amount of tho liability, isanof 
 ther. The decision of tho " matters in dispute " must of necessity involve Ikm 
 the one and the other. It has boon held that " tho matters in dispute, whetlifl 
 consisting wholly or in part of mere matters of account," should be reforreoj 
 see note d to section 158. This involves tho allowance or disallowance of \m 
 cular items, which will depend upon tho adjudif-ation of certain questions eiiM 
 of fact or of law. The proper and most convenient modes of decidim; snl 
 questions when raised as independent issues, are (according to the nature of lij 
 case) by the court or a jury. To facilitate these modes of decision the aboij 
 sectii n has been fr.amed. It is easy to conceive cases in which the allowsiir 
 or disallowance of particular items may depend upon tho solution of questi"! 
 either of fact or of law. Suppose, for example, that plaintiff claims interest lip* 
 his account from a certain fixed period. Defendant may insist as to the intfiy 
 that the same has been paid, wliich will raise an issue in fact. Or he mav ind 
 that plaintitf has no right to charge interest, which will give rise to an issue! 
 law: see Mowatt v. Lord Londcsborough, 3 El. & B. 307, 4 El. A B. 1. Th"' 
 many other examples, such as the operation of the Statutes of Limitation, 
 will occur to the mind. To these and the like cases when mudo "to.appci'tj 
 the Court or a Judge," the section applies. 
 
 (/)) Such account, i, e. the matters in dispute mentioned in the preceding ^ 
 
 
/ 
 
 l/\^/^ 
 
 f'V^ 
 
 /./^2. 
 
 s. 100.] 
 
 REFERRINO LONO ACCOUNTS, 
 
 213 
 
 (leciJed by the Court, or upon a question of fact fit to bo \w cimrt, 
 decided bj a Jury, such CourLor Jutlize may direct a case to f.i.t i.y a 
 be stated or an issue or is-ucs to bo tried ; (7) and tlie doci- h"im illlrasu 
 sion cf the Court upon such ease, and the finding of the Jury 
 upon such issue or issues, shall be taken and acted upon by 
 the Arbitrator as conclusive, (r) 19 Vic. e. 43, s. 85; 19 
 Vic. 0.90, s. 11. 
 
 ICO. (s) In «11 actions involving the investigation of long i„ aiti.ms 
 nccoiints (0 on either side, («) the Judge (r) may at and lllng*'"* 
 
 r.on, wliich rnny "consist wliolly or in pnrt of nicro matters of ftccoiiiit." Tliis 
 Kiul the [(receilinn; suction must bo taken togctlier. 
 
 (1/) This is in aid of the refurenco, and, tlioiigh a recent provision, h seldom 
 fmiiiil necessary in practice. 
 
 D) The powers of an nrljitrator depend almost wholly upon the puhmission, 
 iiiViviiee, or otiier aulliority under wliicii he is cnlitlud to a(;t. lie is, as a 
 i;(Mieriil rule, the final judge both of Inw and fact. In respect to a reference made 
 ill the trial lie usually stands in place of the jurj-, and his award is looked uiion 
 ;i? ilicir verdict. At times he is clothed with many of the powers of u judge at 
 Nisi I'l'iiis. Occasionally some of the functions of the court in bnnc devolve upon 
 him. 15iit where under this section the court deciders n rpiestion of law or a jury 
 f.iiils a faet, he is no longer the judge of the -law or fact, but must accept the 
 decision of the court or finding of the jury as binding for the purposes of the 
 rofereiice. 
 
 U) Partly founded on Eng. Stat. 17 A 1 8 Vic. eh. 1 2.''>, s. 6 ; but in effect an e.\ten- 
 -i'lii iif the principles involved in section l.")8 of this act. Thut secti(<n em])ower3 
 tlip conrt or a judge when satisfactorily shown that the matters in disjtute con- 
 ji^t wholly or in part of more matters of account to dispense witli trial by jury, 
 i'Ut does not apply to causes aetuall}' carried down for trial : Ji"/isoii v. Lccs, ii. 
 iv X. '.',")8. This section begins where the latter ends, and enables the presiding 
 I j',iili;e nt Nisi I'rius in his discretion to direct references in whole or in part of 
 atiioiis " involving the investigation of long accounts." 
 
 (.') The words "involving the investigation of lonff accounts," Ac, are if pos- 
 
 jiMe more general than those of section 158, which are " matters in disjiute 
 
 iisisting wholly or in part oi mere matters of account." AYIiether any weight Is 
 
 !'| lie attached to the word "long" in the one case in contradistinction to "mere" 
 
 in tlie otiier, is doubtful ; for the latter section ha." been held to authorize a refe- 
 
 iviii'e not only of matters of mere account but of the r-oiters hi dixjmfe either in 
 
 wiiiile or in part, and Mhich may in wiiole or in part consist of matters of 
 
 ao.Muiit : section 1«1. It is for the presiding judge to determine whetlier the 
 
 jiss' will involve the investigation of " long accounts" within the meaning of the 
 
 statute. As to what is a long account — whether one of fifty items, or twenty, or 
 
 |tni, or live— the judge must determine, subject to have his order reviewed by 
 
 I till- court in banc in those cases only in which it can be said that he plainly did 
 
 liiutixerei.'ie any discretion, but ajjplied the clause in a case which he could not 
 
 |l«ji5ihly imagine came within it : Wells v. Uzowski el al, 14 U. C. Q. B. 553. 
 
 (') '. f. Either of ilcmaud by plaintiff or of set-of by defendant. 
 
 I'l .\fter entry of the record at nisi prius, the judge presiding and he alone is 
 
 |*Jthoriscd to refer it. 
 
214 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 160. 
 
 8nc(nint«, 
 Judge mny 
 direct ii refe- 
 reneu as to 
 part and a 
 vcnlirt us to 
 other [liirts, 
 &c., (ir leave 
 the whdle to 
 the jury. 
 
 Appoint- 
 uieiit, of 
 arbitrators 
 in referred 
 cases. 
 
 As to 
 
 inotiuns to 
 set aside 
 award. 
 
 during the trial (w) direct a reference of all issues of fact ia 
 the cause, or of Ruch of the said issues and of the accouDts 
 and matters involved in all or any such issues as he thinks 
 fit, (.t) taking the verdict of the Jury upon any issue or issues 
 not so referred, and directing a verdict to he entered gene- 
 rally, on all or any of the issues, for either party, subject to 
 such reference, (y) or he may leave all or any issues of fact 
 to be found by the Jury, referring only the amount of 
 damages to be ascertained ; {z) and if the parties agree upon 
 the arbitrators (not more than three), the names of those 
 agreed on shall be inserted in the order of reference, (a) but 
 if the parties cannot agree, the Judge shall name the Arbi- 
 trator or Arbitrators, and appoint all other terms and condi- 
 tions of the reference to be inserted in such order, (6) ana 
 the award may be moved against, as in ordinary cases, (r) 
 within the first four days of the Term next after the making 
 thereof, (d) And the Judge directing any reference under 
 
 
 (w) " At and during," which may mean at any time before verdict rendered. 
 
 (x) The power ia to refer all the issues or such of the issues, together with tht 
 accouats and matters involved in all or any of the issues, as tlie judge may see tit. 
 
 (j/) It is intended in one way or the other to dispose of all the issues on the 
 record : Wells v. Oxowski el al, 14 U. C. Q.B. 553 ; see also Nemnan v. The Niugan 
 Dist. Mut. Fir$ Aisur. Go. 25 U. C. Q.B. 435. If, in the exercise of a sound discre- 
 tion, all be referred, then the verdict will be a general one for one or other of the 
 parties subject to the reference. If part only be referred, then as to that part 
 such will be the verdict. As to the remaining part not referred, the verdict of | 
 the jury is to be a final determination, so far at least as respects the reference, 
 but without prejudice to the right of either party to move against the verdict: 
 Postca, N. R. Sch. No. 8. 
 
 (a) In which case the verdict of the jury will decide the cause of action, and be I 
 in the nature of interlocutory judgment. The cause of action decided the umouct 
 of dnniftges to bo recovered in respect thereof to be thereupon found by the [ 
 arbitrators. 
 
 (a) It is no more necessary now than formerly that the agreement Bhoiild be I 
 in writing. The consent of counsel acting in court will, it is apprehended, wj 
 conclusive upon the parties. It may afterwards be reduced to writing. 
 
 {h) Indorsements would, it is presumed, be a sufficient compliance : see Caricl 
 V. Mansbridge, Barnes, 65. The use of the word "insert" negatives the idea of j 
 an oral order of reference : see Anxell v. Evans, T T. R. 1. 
 
 (c) See section 165, and notes thereto. 
 
 {d) The court unless restricted by this section might entertain the applicatioi 
 after the time limited, but such indulgence will be rarely admitted : see note i' tal 
 section 165. The time is "within the first four days of the term next after tli« 
 milking thereof." The time for moving to set aside awards under section 163 is 
 " within the first six days" next following the publication of the axaard to th^oti 
 
IGl.] 
 
 DAMAGES WHEN A MATTER OP CALCULATION. 
 
 215 
 
 thi-i section may direct such reference (if ho sees fit to do 
 soj in like manner as he has power to do under the two last 
 preceding sections; and every Arbitrator appointed under 
 this section shall be subject to the provisions of tbe said sec- 
 tion, and shall have the powers expressed in the one hundred 
 and sixty-first section, and be subject to the same regulations 
 as arc mentioned and provided in regard to Arbitrators in 
 and by the one hundred and sixty-third section of this 
 Act (e) 19 Vic. c. 43, s. 15G ; 20 Vic. c. 68, s. 3 ; 20 Vic. 
 c, 57, s. 12 ; 8 Vic. c. 13, s. 47. 
 
 161. (/) In actions in which it appears to the Court or a 
 JuJ,::c ([/) that the amount of damages (/i) sought to bo re- 
 covered by the Plaintiff, (t) is substantially a matter of cal- 
 culation, {/c) it shall not bo necessary to assess the damages 
 
 Flow the 
 
 aiiKiiiiiC uf 
 iliiiuaKi'H 
 shall lie I'S- 
 I'lTtailhKl 
 wlirii Uio 
 Court is of 
 
 liif." Between these two modes of expression there is a distinction to be observed. 
 The general rule is, that an award is publislied and made so soon as the arbi- 
 trator has made a complete award and is functus officio : Ilenfree \. Bromley/, 
 6 Kast. 309; Macarthur v. Campbell, 6 B. «fe Ad. 518 ; and that no express notice 
 of the awnrd to the partict is necessary to impose the duty of obedience : Child v. 
 IMen, 2 Bulst. 143 ; Gable v. Moss, I Bulst. 44 ; Bell v. Twentyman, 1 Q. B. 70(5 ; 
 Iluhtkn V. Harridge, 2 Wms. Saund. 62 (4) ; Potter v. Ncieman, 4 Dowl. P. C. 504 ; 
 hrooke v. Mitchell, 6 M. «fe W. 473. The words " publication of the awnrd to t?ie 
 piTfien," as used in section 165, seem to be taken from Eng. Stat. 9 «fe 10 Wm. III. 
 c. 15; Watson on Awards, 3rd Edn. 132; and it appears to bo considered tliat 
 under that statute the time does not begin to run until the party has expressed 
 notice of the award: note x to section 165. It would seem that under the section 
 herennnotiited knowledge of the award having been made would be sufficient notice, 
 
 I though tiiere is certainly a conflict of authority : see Brooke v. Mitchell, 6 M. & 
 W.473; Hemsworth v. Brian, 7 M. «fc G. 1009; Macarthur v. Campbell, 6 B. «t Ad. 
 518; Musselbrook V. Dunkin, 9 Bing. 605. The distinction necessary to be ob- 
 
 herved is between the general rula under whicli the parties must take notice of 
 the making of the award and the statute of Wm. III., under which notice nmat 
 
 Ibe^^ii'f.i to the iiarticj 
 
 (f) The !at. 
 I presented [>• j ., 
 
 (/; Tckr-;, i - 
 Irepirtuf tb> v'o; 
 
 •rx, of this section was introduced to meet ditficultics which 
 ,n Welts V. Ozwoski tt al, 14 U. C. Q. B. 553. 
 
 'itg. Stat. 16 <!c 16 Vic. cap. 76, s. 94. Founded upon tlie lii-st 
 u Law Commissioners, section 67. 
 
 (y) itelative powers: see note w to section 48. 
 
 !'i) The section appears to extend to (jases of unliquidated as well as liquidated 
 
 Idemauds. 
 
 (0 Eng. Act reads "sought" instead of "ought to be," the words in this acf. 
 
 Be words " ought to be recovered" will bring in the consideration as to the pro- 
 Mr measure of damages in each case. The distinction between ours and the Eng- 
 ish act should be borne in mind when reading decisions under the latter. 
 
 (i) It is not possible to lay down a rule that will satisfactorily govern all cases 
 ito \rhea a demand sought is " substantially a matter of calculation," The word 
 
 liafisjBll 
 
2ia 
 
 THE COMMON LAW PROCEDORE ACT. 
 
 [s. 101. 
 
 ot>itii(>ii timt by a Jury, (I) but the Court or a Judge may direct (m) that 
 suuUaiiy a tbc aiuount for whicb final judgment is to be signed, (n) shall 
 
 I,.'. '►" 
 
 
 '•substnntinlly" hns been introduced into the definition, beenuso it ia intended 
 tliiit tl:u section simil have n very extended np])iicntion. In all casea whore a 
 iniitter could be referred to the master to compute what was due before the pasj. 
 ing of the C. L. P. Act, it can now, it is apprehended, be referred to the niastn 
 to ascertain the amount for which final judgment is to be entered, and apparently 
 this power extends nnich further. Under the statute the cuurts will now direct 
 the dninnjyes to bo ascertained by the master in cases where they would not have 
 done so* before the C. L. P. Act: Crooks v, Lickaon, 1 U. C. L. J. N. S. 207, ptt 
 Kieliards, C. J, An action for damages for the non repair of a house is ]m by 
 ♦/nc commissioners as an example of their meaning. To such and " the like " cnsf- 
 tiie act is designed to apply. Thus in an action of covenant for rent an orderly 
 a judge in chambers directing the master to allow the plaintiff interest nn ilie 
 aiiiouiit claimed on the writ of summons, not specially endorsed from the date of 
 t'le writ was held to have been properly made, though no interest was claimed in 
 llio declaration: Crooks v. Dickson, 1 U. C. L. J. N. S. 21)7. In an action fur 
 gixids sold and delivered after interlocutory judgment, if any dispute is lil<ely to 
 mifie OS to quality or price, there may be a reference under this section ; JJuick- 
 .ion v. SideuiL'ays, 14 U. C. Q.B. 472. The fact A defendant being out of the jnrir 
 diction is no objection to u reference nnder this section: Crooks v. Dickson, 1 U. 
 V. L. J. N.S. 207. There is a discretion that rests in the court or judge, to refuse 
 an application under this section, where the claim, though substantially a matter 
 of calculation, is of an intricate nature, involving more than mere computation: 
 see further Mc.ssin v. Lord Massareene tt ux, 4 T. E. 493; Miwnsell v. Lord Mm- 
 sareene, 6 T, 11. 87 ; Nelson v. Sheridan, 8 T. U. 395 ; Denison el al v. Jlair, W 
 East. 022. 
 
 (l) The English act reads "to issuea w/it of inquiry," instead of "to assess tiie 
 damages by a jury." Our practice is different: see section 149. 
 
 (Hi) The power to make the directions here authorized must be invoked upon 
 a j)roper application supported by affidavit. In a case decided under this section 
 tlie ntlidavit read thus, " that this action is brought to recover the sum of, ic., 
 for goods sold and delivered, and interest thereon; that a writ of summons, copy 
 of declaration (on common counts only;, bill of particulars, and notice to plead, 
 liave been duly served at intervals; that interlocutory judgment was signed on. 
 &c., for want of a plea ; that the amount claimed can be correctly ascertained bv 
 u reference thereof to the judge of the county court of the county of Hastings,' 
 ifec. : Leieis v. Ilamden, MS. Cham. Oct. 28, 1866, Burns, J. The order rony be as 
 follows : " I do order that the amount for which final judgment is to be signed in 
 this action s'.iall be ascertained by," &c. The application may be made notwitli 
 standing the death of plaintiff after the signing of interlocutory judgment: sections 
 140, 141, also 8 & 9 \Vm. III. cap. 11, s. 6. The reason that such is and should 
 be tlio law is well explained in IJerf/er v. Green, 1 M. & S. 229. " It is perfectly 
 clear that final judgment may bo signed notwithstanding the death of the party, 
 and that the court will not set it aside on account of his death before it va 
 signed. This is an application (computation) merely to inform the court for what 
 damages judgment might be signed, and if this preliminary step were notneeH 
 sary, the party might at once sign final judgment. If then the court would permit 
 fiual judgment to be signed, notwithstanding the death of the party, tliey W" 
 hardly on that account refuse this rule, which is only a means of getting fin"' 
 judgment:" 76. jB«r LeBlanc, J. 
 
 (n) To entitle a party to proceed under this section it must oppear that inter 
 locutory judgment has been in fact signed. Tlie right of action being thereby 
 admitted the amount of damages sustained in consequence thereof is the only , 
 
s.lGl.] 
 
 DAMAGES WHEN A MATTDR OF CALCULATION. 
 
 217 
 
 be nscertaincJ — if the procecdiiiKS be curried on in the prin- m ;t» ;r < f 
 
 " 1 ri I call llliitldl 
 
 cipiil Office at Toronto, by the Clerk of the Crown aiul Plctis 
 of the proper Court (o) — or, if the proceedings be c:irried on 
 ia the Deputy Clerk's Office in ary County, tlien by the Judj^o 
 of the County Court of such County ( p) — or, if the proceed- 
 ings be carried on in any County Court, tlien l>y the V,]vr\i 
 thereofj and the attendance of witnesses and the production 
 of documents before such Clerk of the Crown, or Judge or 
 Clerk of the County Court, may bo compelled by nuhpa nn, 
 in the same manner as before a Jury upon an asses.siuent nf 
 damages; (7) and such Clerk of the Crown or Judgo or Clerk 
 of the County Court, respectively, may ajijioitit the diiy for 
 hearing the case, and nuiy adjourn the inquiry fiuui time to 
 time, as occasion rcfjuircsj (/•) and sneh Clerk of the Crown, 
 or Judge or Clerk of the County Court, (on the ai.fr 7iiiiy ie,) 
 shall indorse upon the rule or order for referring the amount 
 of damages to hiui, the amount found by bim, and shall de- 
 liver the rule or order with such endorsement to the Plain- 
 tiff, (s) and such and the like proceedings may thereupon be 
 had, as to taxation of costs, signing judgment, and otherwise. 
 
 tiling to be ascertained. The taking of tlio enquiry and entering linal judgment 
 are only tlio conclusions and necessary conseijuences of the interlocutory jndg- 
 niunt. The court itself if so pleased might insist upon entering judgment, assess 
 the damages, and give final judgment thereupon : Iluldipp v. Oliomj, 2 Wms. 
 ijaund. 107, note 2. 
 
 (0) t. c. Of the court in which the action has been instituted. 
 
 (/)) In an action on a promissory note, commenced in the office of n deputy 
 clerk of the crown, to which there was no defence and interlocutory judgment 
 liiul been signed before this act came into force, the nuitter was referred to the 
 judge of the county in which the proceedings had been commenced : Allan v. 
 Skml, 2 U. C. L. J. 213, per Burns, J. 
 
 (7) The moment the court has pronounced interlocutory judgment it may 
 award a writ of inquiry : Jiussen v. JIayward, 6 B. & Al. 752. Consoquenth^ 
 tlicre is nothing to hinder an application for a reference under this section being 
 made on the day when interlocutory judgment is signed. It has been held that 
 tliere cannot bo separate rules to compute against joint defendants : Field v. 
 i'oo/f// ft al, 3 M. ife G. 765. In such cases therefore, there should be one reference 
 only under this act. In some respects, particularly as regards the attendance of 
 witnesses or production of documents, the practice under this section will re- 
 stmble the practice as to arbitrations : see notes to section 1C3, 
 
 [r) Notice of assessment must bo served : see CwrtUhers v. Rykert et al, 1 U. C, 
 
 L.J. 184. 
 
 (s) This manifestly intends references only upon application of plaiutifTs after 
 judgment, signed by default. 
 
218 
 
 THE COMMON LAW PROC.DUIE ACT. 
 
 [8. 102. 
 
 i ' A ' I- 
 
 4 
 if 
 
 
 Arhitrntor 
 mny irink(! 
 nwaril in tlio 
 fiinii III ft 
 8|itirial cnKO. 
 
 as upon tlio finding of a Jury upon an aBscsstncnt of dani- 
 ngos. (0 19 Vic. c. 43, s. li:? ; 19 Vic. c. DO, s. 14. 
 
 lO^iS. (u) l^pon any corapulaory rcforonco under this 
 Act, (v) or upo.i :iny roferenco by consent of parties (w) 
 where the submission is or way bo miido a rule or order 
 of any of the Superior Courts of Law or Equity, (.r) and 
 
 {t ) III En^lnnd there is a rule to the effect that " on n reference to the master 
 to ascertain ttie amount for wiiich flniil judj^inent is to bo signed ; tlie master's 
 cortiiicato sliall bo filed wi.en tlie judgment is signed:" No. 171 II. T. 1853. 
 
 (m) Taken from Eng. Stat. 17 «fe 18 Vic. cap. 125, s. 5. 
 
 (v) i. e. Under section 158 or 160 of this act. 
 
 (»/)) Or upon any reference by consent of parties. By this expression is meant 
 such references as miglit be or were commonly made before tlie passing of this 
 act. Disputes between parties of whatever nature, provided an action at law or 
 suit in equity will lie by one party against the other, may as a general rule be tho 
 subject of a reference by consent: for instance, all matters in dispute concernintj 
 any personal chattel or personal wrong. Thus, breaches of contract geneniily, 
 breaciies of promise of marriage, trespasses, assaults, clmrgcs of slander, ditFer- 
 ences rospectmg partnership transactions or tho purchase price of property, and 
 questions rel: ting to tolls. Things in realty as well as personalty may be sul)- 
 mitted, and if tliere bo an award of the possession of the realty, tho court may 
 enforce such award as if it wcro a judgment in ejectment: section 174. I'rncli- 
 cally, therefore, no distinction any longer exists in this respect between realty 
 and jiersoiialty. It is in the power of an arbitrator by his decision to give to tlie 
 party in whose favor he awards, a riyht to the property in dispute, whether per- 
 sonal or real. As to realty see 0' Dougherty v. Fretwclt, 11 U. C. Q. R. 05; The 
 Great W. Railway Co. v. Baby et al, 12 U. C. Q. B. 106; McPherson v. W^ilkn, 
 1 Prac. R. ^Q.per Draper, J. ; Doe d. McDonald v. Long, 4 U. C. Q. B. 140 ; Doe 
 d Galbraith v. Walker, E. T. 2 Vic. MS. 11. & II. Dig. " Arbitration and Award," 
 IV. (3) 9. 
 
 (z) This is made to depend npon the Eng. Stat. 9 <fc 10 Wm. III. cap. 15, s. I, 
 and section 17tf of this act. Though both enactments are very general in their pur- 
 port, the latter (which soo) is the more extensive. It was not, before tlie statuto 
 9 <fe 10 Wm. ill., in the power of parties out of court bj' ony agreement either 
 before or after award to bring themselves into court and create a Jurisdiction to 
 issue process of contempt : Nichols v. Chalic, 14 Ves. 206 ; Lyall et alv. Lamb, 4 B. 
 
 6 Ad. 468 ; Steers v. Harrop, 1 Bing. 133. Tho statute enacts that the submission 
 may be made a rule " of any court of record." These words have been held to 
 include the English court of Chancery: Pawnall v. King, 6 Ves. 10. The statute 
 also enacts that tho parties shall " insert" their consent to make the submission a 
 rule of court in the submission itself. It has therefore been held that a pwol 
 submission cannot be made a rule of court under i..o statute : Ansell v. Einm, 
 
 7 T. It 1. And though it is enacted that the consent shall bo " inserted," still ia 
 a case where the consent clause was no part of tho condition of tho bond, but was 
 written under it before execution and not signed, tho submission was made a 
 rule of court : Carter v. Mambridge, Barnes, 65. Setnble. Where the submission 
 at the time of the execution thereof does not contain the consent, a clause added 
 several months afterwards will not supply tho defect so as to admit of the sub- 
 mission being made a rule of court : In re Thirkell et al, 2 U. C. Q.B. 173. If the 
 consent be inserted and properly executed, it is not in the power of either party 
 
s. 102.] 
 
 AAVARD STATED IN A SPECIAL CASE. 
 
 219 
 
 upon any conipulHory reference under this Act, or by con- 
 sent of parties in any cause in a County Court made by 
 rulo or order of such Court, {>/) the arbitrator (?) mf.y, if 
 ho thinks fit, (^zz) and if it is not provided to the con- ti,mnf. 
 
 to rovoki- his submission witlioiit leave of tlio court: see section 171), wliicli is 
 a tran9(Tij)t of Ehr. Stat. 3 A 4 Win. IV. cap. 42, a. 3!t. Tlie statute limits no 
 titnu wltliin wliich the application to enforce the award must bo made. It 
 h:iw bi'L'ti lickl that it is no objection to the making of a submission a rule of 
 (i>urt tiiiit nil the procoedinirs taken under such subtais.sion were null and void : 
 Annii, 10 Jur, 6*26. An objection to the validity of an oword, even though appa- 
 rent on its face, is no objection to making the submission a rule of court ; Hem- 
 miiifl V. Swintierlon, 6 Hare, 360. Where two parts of a deed of submission were 
 cxfouted, and the arbitrator indorsed the enlargements of the time for making 
 till' award on one part, the court compelled the party in whose possession that 
 ].art WHS to make it a rulo of court : In re Smith v. /Slake, 8 Dowl. I*. C. 13i) ; see 
 iiNo Lord Boston v. Meshain, lb. 867. Where it was necessary to make a subniia- 
 siuii n rulo of court before moving ti set it aside, and the party in whose favor 
 the award was, refused to produce the submission, the court permitted a copy 
 to 1)0 !!!:uie e rulo of court for the purpose : In re Plewt ami Muldleton, fl Q. B. 
 H'k As to a ""eforence from nisi prius, the order does not belong to either party; 
 but tlie party holding it holds it for the benefit of both parties, and is bound to 
 proiiice it when required: Bottomleyv. Buckley et af, 4 D. A, L. 167. Where the 
 iu:il;iiiij of a submission a rule of court was delayed, until the time limited for 
 siitiiifj aside the award had elapsed, the court ordered the party who delayed it 
 tuiilldw the opposite party to move to set it aside nunc pro tunc: lb. ; see also In 
 re 'Hit Midland Railway Co. and JJemiiir;, 4 I). &, L. 788. 
 
 (y) Thus making the practice in this respect in the county courts and sujierior 
 C( iirts of law uniform. 
 
 (:) The arbitrator appointed to net, whether of the legal profession or not, 
 imd wliether the matter referred to him involve questions of law or of fact, is, 
 it a[i|iears, authorised in his discretion to decide such questions : see Jupp et at v, 
 (!riu,wn, 1 C. M. it II. 523 ; Yonnp v. Waller, 9 Vcs. 364 ; Perriman v. Stcggall, 
 liiii^'. 67!) ; Holmen r Uiggins, 1 B. A C. 74 ; Campbell v. Twemlow, 1 1'rice, 81 ; 
 IIV'mh (t nl V. King, 2 C. «fe M. 089 ; Hall v. Fergttnon et al, 4 O. S. 392. If he decline 
 ijf liimself to decide questions of law, ho is enabled by the section under cousider- 
 ntion to state his award " in the form of a special case for the opinion of the 
 I'liirl." But there is no obligation on him to do so : Gibbon v. Parker, 6 L. T. 
 N. S. 584. In questions of perplexity an arbitrator will feel the propriety of 
 •■iddptini,' this latter course, rather than rely upon his own judgment. But sup- 
 posiii[f iio resolves himself to decide incidental points of low, it does not follow 
 that If he proceed upon a mistaken view of a clear principle of law the court will 
 nut set aside his award : Richardson et al v. Naurae et al, 3 B. A Al. 239, per Abbott, 
 C. J. In this respect there is no diflference between compulsory references and refe- 
 rences by consent : Hogge v. Burgess, 3 H. «fe N. 293 ; Hodgkinson v. Fernie et al, 
 :i CB. N.S. 189; Baguellyw. Marthwick, 4 L. T. N.S. 245. Under such circum- 
 Blaiices the court, if there be no sufficient reason for setting aside the award, may 
 remit tlie matters in dispute " to the reconsideration and redetermination of the 
 arbltrntdr:" section 164. But will only so remit where there is power to set asido 
 tiie award: Hogge v. Burgess, 3 H. & N. 293 ; Latta v. Wallbridge, 7 U. C. L. J. 207. 
 
 (iz) This section is one which enables the arbitrator to state a case, but doea 
 not iiiake it obligatory upon him to do so. He muy do so if he " see fit," that is, 
 iie is not bound to do so if he do not see fit. Where, by the terms of an order of 
 
220 
 
 THE COMMON LAW PROCKDURE ACT. 
 
 [H. \i]?,. 
 
 Prn(<ce(lln«« 
 befiMi' iiibi- 
 
 trary, (<») Htato his nwuiJ ns to tlio whole or nny part llicro- 
 of, (/>) in tho form of n speiMMl cuso for the opinion of the 
 ('ourt, (r) and when an action hus been ri-forred, ((/) jmli:. 
 nicnt, if so ordered, niny bo enteruc! nccordin<; to the opiuiiMi 
 of tho Court. 00- 19 Vic. c. 43, 8. 8G; 19 Vie. c. UO, s. 12; 
 8 Vic. 0. 13, 8. 47. 
 
 14S3. (./ ) Tho proceedings upon nny such arbltraliuii «.« 
 
 refori'ncn iiindo before tlio C. L. P. Act, an nrljitnitor was at. liliertu to riilsi' nny 
 point lit law for tho opinion of tlio court: llclil that he was not btnind to tioio: 
 Wood V. Ilolham, 5 M. A W. 074 ; Milter el al v. ShutlUworlli, 7 C. 15. UK,; sw 
 precciling note to this section. 
 
 (a) It inifjht be inferred from this section, taken aloiio, that an express ytn- 
 vision to the contrary would be requisite ; l)ut tliis section and that of scition 
 17(! of tliis act are in piri muteria. Indeetl, as relates to " refereijces by consent,' 
 both provisions occupy a coniinon uronud. Tho latter section ])rovide.^ timi 
 every UjLfreeinent or siiUnission to arbitration by consent may bo made a mi" i.| 
 court, " unless such agreement contain words purpnrfin;/ llial the parties intewl lh>it 
 it should vol be made a rule of court." Tlio intention of tlie instrument, even in 
 tho absence of express provision must"govern in either case. 
 
 (b) '^As to the whole or anij part thereof," i. e, of tho matters referred. 
 
 (c) It has been considered before tho C. L. I Act that an arbitrator could not, 
 without leave expressed in the order of reference or submission, state a ciisu for 
 the opinion of the court; liradbte v. The Governors of Christ's Hospital, 2 Dowi. 
 N. S. 164; sed qu see Wood v. Ilotham, 5 M. it W. 074. It hus always been 
 usual for well-drawn submissions and orders of reference to contaii> a cimisi! to 
 the effect that the arbitrator miy^ht in his discretion state any point of law on tho 
 face of his award for the oi)inion of the court. And it has been held tlint if i', 
 clearl}' appear upon the reading of an award that tho arbitrator intended to leave 
 a particular question of law open, the court will consider it: Sherr;/ v. O/ce et al, 
 8 Dowl. P. C. 349. Where an arbitrator to whom a cause was referred by order "f 
 reference directed a verdict for a certain sum to be reduced to a lesser sum, if tlic 
 court should bo of opinion that it ought to bo so, a motion for that purposw van 
 said by I'arke, IJ., to be in substance a motion to set osiile the award: Ainlewn 
 V. Fuller, 'J Dowl. P. C. 62. Form of special case under this enactment see N. 
 R. Form 4. 
 
 (d) Besides mere matters of account which may under sections 168 or lOOof tlii^ 
 act be compulsorily referred ot any time after writ, it nuiy bo mentioned tliai 
 where there is a cause depending, a rule of court or a judge's order, or on thi' 
 trial an order of nisi prius referring the cause to arbitration, may ut conunDu law 
 be drawn upon consent of the i)arties: Russell Arb. 3rd Ed. 72, referring to 
 Lucaa v. Wtlson, 2 Burr. 701 ; Harrison v. SmUh, 1 D. <& L. 873, 
 
 (<■) The opinion of the court obtained under such circumstances is in effect the 
 decision of tho arbitrator, and therefore, notwithstanding the statement of tho 
 special case by the arbitrator, the judgment of the court upon the matter refernil 
 18 final, and entitles the successful party to enter his judgment and issue execution, 
 Form of judgment see N. R. Forms 12, 28. 
 
 (/) Taken from Eng. Stat. 17 <k 18 Vic. cap. 12.'5, s. 7. Tho object of this 
 section is to make the proceedings contemplated conformable as far as circum- 
 stances will permit to proceedings before arbitrators oppointed by consent ol 
 
10;].] 
 
 PROOEEDINGS UPON ARniTRATIOM. 
 
 221 
 
 nf ircsiiid shall, except otherwise directed by this Act or by trntc.r. nwi 
 fho Bubmission or document outhorizing the reference, be I'lirali'iMMm " 
 c-inducted in like manner and bo subject to the same rules (</) rollniMit.'' '^ 
 
 pnrt!('». AIao to nsnimilnto all subscqiiont iirocccuings to tho existing jirootlce 
 iijHiii A rufurenco by coiisont. 
 
 (</) Tiio niotlo in which |irncce(lings upon n rofuronco to nrhitration Nhoiild bo 
 niiiiliu'tc'il inn«t, in tho ubsuiico of exprcHH tlircctiona in tho rulo (ir order of rcfo- 
 rcnci', tl('|n'iul imicli upon llio discretion of tlie nrbitrntor ; boo TiUnm v. Ci>pp, 
 :> ('. It. '21 1. It rents with hitn to niipoiiit the tiniu and plnce of inoi-tin^, and it 
 U llic duty of tlio parties to attend to his appointment: FetfierHtone v. Cooper, 
 1.1 \'cx. 1)7. Wiicn tlio time and place iios boon a|)polnted, and the |)ftrties or their 
 (ittiiini'vs (n<'0 Allun v. Brown, Tuy. U. (!. It. 3;)5) informed thereof, (In re John- 
 siiit iiiiti Municifiitliti/ of Glouci»ltr, 12 11. C. (i. U. 135) they inunt attend with all 
 lucurtAiu'v witnesses, If eitlicr party ahscnt himself after being notified to attend, 
 it \i ill the power of tho arbitrator to proceed ex parte : see Wood v. J.eiiltt; 12 Vc». 
 112 ; llarcourt v. Jiamufwttom, 1 J. A W. 612 ; ScoU v. Van Sandnii, « Q. H. 237. 
 I'liit to warrant him in so proceeding there ought to be a very strong case : soo 
 (;iiiili''in V. Vhihote, \> Dowl. V. C. 660; Proudfoots. Trotter at al, (i (). S, 103. 
 KitliiT party may bo represented by counsel, and It would be [jrudeiit for the 
 party wlio intends to engage counsel to notify tlio opposite party of such his 
 iiitiiition. Tliis course will both prevent surprise at tho hearing and at tlie same 
 time riMiiove all suspicion of a desire to take undue advantage. It will lie jiroper 
 I ir the arbitrator to regulate tho proceedings of parties, such as examination of 
 wiiiii'Siii's, address of counsel, Ac, oy analogy to the practice of the courts under 
 s^imihir circumstaiices. Tho discretion of the arbitrotor, when there is a cause in 
 court, is at all times subject to the supervision of the court in which the cause 
 was commenced. Tho court has power not only to review his decision but to set 
 a'<i(lu his award, if it be made to appear that ho has acted unfairly towards either 
 jiarty ; Great Western liuUmty Co. v. Jialn/et al, 12 U. C. Q. B. lOO. For instance, if 
 lie refuse to receive evidence tendered to him by either pmtj', tiiough he iiiKy be of 
 (.|iinion that he has sufficient evidence before him: see J'/upp.i v. JiK/rmn, 3 Dowl. 
 1'. C. «69 ; Hamilton v. Wilmn, 4 O. S. 16 ; In re Hull v. Bull, 6 U. C. ('l It. 357 ; lure 
 Mc Mullen dal,2\].CXl\i. 176; Grhdalev. nonUon,\\5.CXl\\A()1. Yet if he refuse 
 the evidence as being inadmissible, it ajipears liis decision will rarely if ever be 
 disturbed : see Symet v. Goodfelluu , 4 Dowl. P. C. t)42. In some cases it may 
 apliear very indispensoble that an arbitrator should within proper limits be 
 allowed to deviate from the ordinary rules which govern courts of justice; for in- 
 stiiiico, he may properly and conveniently take the examination of usick or intirm 
 ]iiMson at tlie house of such person: 7'illam v. Copp, 5 C. B. 214, per Mnule, J. 
 liut the deviation must not be an unnecessary or a glaring departure from well 
 established rules of practice. Thus an arbitrator lios no power privately to 
 cx.'iiiiiiie tt party to a reference upon his own behalf. Such n proieediiig wouli 
 be contrary to the rules for the regulation of evidence, odopted both by courts of 
 law and equity : In re Ilkk et al, 8 Taunt, 694 ; Bohson el al v. Grovex el al, 6 Q. 
 1!. 6:'." ; bav's v. Birdsall et al, 2 U. C. Q. B. 199 ; see also remarks of McLean, J., 
 hi Biiiik V. Humphrey tt al, 1 Pruc. It. 188. If the order f f reference require 
 the arl)ilrator to take evidence upon oath, he would not be juslitied in receivitg 
 the atiiilavits of parties not attending: see Bankn v. Bitnl(.<, 1 (iale, 46. It liherly 
 he given to him so to examine the parties, lie may or may not do so ii} the exer- 
 cise of his discretion : see Smith v. Goff, 3 D. & L, 47. It is in tho power of the 
 court or a judge from time to time, if necessary, to remit the matters referred or 
 iiiiy part thereof to the redetermination of the arbitrator: see section lt)4 of this 
 act. It is also in tho power of the court either to allow a revocation of the sub- 
 luission or reference : see James v. Attwood, 7 Scott, 841 ; Faviell v. I'he Easttrn 
 
222 
 
 TUB COMMON LAW PROCEDURE ACT. 
 
 [s. 163. 
 
 ^ « 1 
 
 ji'l 
 
 
 
 #«i 
 
 and enactments as to the power of the arbitrator and of the 
 Court, the attendance of witnesses, (A) the production of 
 
 Counties Railway Co. 6 D. <fe L. 64 ; or to enlarge the time for making tlie award: 
 Joneit et al v. JiitsneU, 6 U. C. Q.B. 3u3 ; see also section 172, and notes thereto. An 
 arbitrator, if he award the payment of a sum of money, may as a general rule name 
 a day for the payment. The rule is diiferent where a cause only is referred, or 
 where a reference is made for no other jjurpose than to make an estimate or fix a 
 price, or where the terms of the submission contain something restricting tlm 
 arbitrator in this respect: Addison v. Corbet/, 11 U. C. Q. B. 433. An arbitrator 
 ehould at all times he careful neitlier to overstep the bounds of propriety, nor 
 with reference to the subject matter of his award to exceed the authority coa- 
 ferred upon him by the submission or reference. If he do, altliough tlie excess 
 may in some cases be rejected as surplusage, in others it may be a ground for 
 setting aside his award : see the following cases — Aitcheson v. Cargey, 2 JBing. 199; 
 Tattersall v. Groote, 2 15. &. P. 131 ; Shaw v. Turton, 4 0. S. 100 ; Brown v. Watm, 
 6 Bing. N. C. 118 ; Boodle v. Davics, 3 A. & E. 200 ; Morleyv. Newman, 5 D. AR. 
 817 ; IJiitchinson v. Blnckwell, 8 Bing. 331 ; Jackson et al v. Clarke, 13 Price, 28; 
 Cayme v. Watts, 3 D. A R. 224 ; 6'nn/ v. Gwmnap, 1 B. <t Al. 106 ; Harding \. For- 
 shav), 4 Dowl. P. C. 761 ; Donlnn v. ^Brdt, J A. & E. 344 : Watxon v. Black, II. T. 
 4 Vie. MS. R. <i H. Dig. "Arbitration and Award," III. (2) 2; Cocky. Gent, 13 M. 
 & W. 364 ; Mathcw v. Davis, 1 Dowl. N. S. t,79 ; Haxokyard et al v. Stocks etal, 2D. 
 & L. 937 ; Bound v. Uailon, 10 51. & W. 660 ; Eastern Counties Railway Co. v. 
 liobertson, 6 M. & G. 88 ; In re Tandy, 9 Dowl. P. C. 1044 ; Boycs v. Bhick, 13 C. 
 B. 652 ; Law et al v. Blavkburrow, UC. B. 77 ; Hdl v. Ilill et al, 1 1 U.C. Q.B. 202; 
 Great Western Railway Co. v. Hnnt, 12 U.C. Q.B. 124; same Plaintiff's v. Ihugall, 
 lb. 131 ; same Plaintiffs-:'. Dodds, lb. 133 ; Li re Miller and Great Western R(iUKa\) 
 Co. 13 U. C. Q.B. 582; Faulkner v. SauUer, 1 Prac. R. 48 ; In re Haley et al, lb. 173, 
 If there bo any just cause for setting aside an award the party aggrieved must 
 take good care to move witliin tiie time limited by statute or rule of court: see 
 Crooks V. Chisliolm et al, 4 O. S. 123, per Robinson, C. J. 
 
 (h) The court, if not empowered ao common law (see Wansell v. Sordhicood, 
 4 M. & R. 359 ; W(U v. Taylor, 1 D. »fe L. 676) to command tiie attendance of 
 witnesses and production of documents before an arbitrator upon an order of refe- 
 rence, lias full power so to do by statute: see section 180 of tliis act. The courts 
 of comrn(-n law are not deprivecl by the statute of tlieir concurrent jurisdiction to 
 swear the witnesses : James v. Attwood, 5 Bing. N. C. 628. And the arbitrator, 
 on the other liand, mir ■ ^iwear tlio witnesses, notwithstanding the order of refe- 
 rence directs them to bo sworn before the judge of assize: Hodsoll v. Ulst, 4 M. 
 & W. 536; see section 182. If the witness whose attendance is necessary be a 
 
 Erisoner in close custody the court may grant a habeas corpus, in order that he may 
 e brought before the arbitrator : Graham et al v. Glover et al, 5 El. & B. 591 ; J/acs- 
 den V. Overbury, 18 C. B. A. Where it is requisite to resort to the above com- 
 |)ulsory proceeding, an order for tiie attendance of the witnesses may be obtained 
 either upon motion in practice court or on application to a judge in chambers 
 grounded on affidavit. The affidavit should set forth the existence of tlie refe- 
 rence either shortly in words or by verifying a copy of the rule or order aui'ior- 
 izing the same — the names of the witnesses and the county iu which they risiile, 
 or if their residence bo not known, should set forth facts stifflcient to satisfy the 
 court or the judge that they cannot at tlie time of the making of the affidavit be 
 found. If a document be required to be produced it should be properly described 
 as in a subpcena duces tecum. It should also be stated that the attendance of tho 
 witness or production of the document is material. Tho rule or order will be 
 absolute in the first instance. The court in granting it acts in a ministerial rather 
 than in judicial capacity : Li re The Guarantee Society and Levy, 1 D. <fe L. 907. 
 
 m -L- 
 
rj, 163.] ENFORCING AWARD. 223 
 
 documents, enforcing (i) or setting nside the award, or other- 
 
 Tlie rule or order when obtained, and a copy of the arbitrator's appointment should, 
 if possible, be served on the witness, and his reasonable expenses tendered to him 
 nl tlie time of the service thereof. To briiig him into contempt the originalb should 
 be shown to him. The parties, their attorneys, counsel, and witnesses, in going 
 to, sttending to, and returning from the arbitration, are privileged in the same 
 manner as on a trial at law : Webb v, Taylor, 1 D. & L. 676 ; Spence v. Stuart, 
 3 East. 89 ; Randall v. Ourney, 3 B. A Al. 252 ; Ricketts v. Gnmcy, 1 Chit. R 682. 
 A voluntary attendance when the witness might be compelled to attend is equally 
 jiiiviici^ed : Webb v. Taylor, 1 D. «fe L. 676. The privi' 'ge holds good during the 
 ndjouinment of the arbitration from one period to another of the same day, or 
 vheii the adjournment is from day to daj* ; but not when many days are to 
 elapse before tnc .icxt meeting : Spencer v. Neivton, 6 A. «fe E. 62.S. I'rovision 
 may be made for the examination of the witnesses upon oath : see section 182 of 
 tills act. 
 
 (0 There are two modes of enforcing an award upon " a reference made by 
 consent under a rule of court or ji^dge's order." First, the ordinary common law 
 remedy by action. Second, the extraordinary statutiible one of process of attach- 
 ment. Of these two, the party aggrievec' should make an election.' lie will not 
 be allowed to pursue both remedies at one and the same time : see Stock Uuyyena 
 and DcSmith cases, temp. Hardwicke, 106. The adoption however of one remedy 
 does not, it seems, necessarily exclude the otfier : Reff. v. Ilemsworth, 3 C. 13. 753, 
 ;«;)• Wilde, C. J. ; fhxter v. Fitzgibbon, 4 U. C. L. J. 43. Proc.-ss of attachment for 
 non-payment of money is now abolished: Con. Stat. U. C. 24, s. 13. But if the 
 awaid direct the doing of an act other than payment of money, it is apprehended 
 an Ettachment may still be obtained. 
 
 Fird. Proceeding by action. This remedy maj' be adopted whether the submis- 
 sion 1)0 by writing not under seal : see Ilodsden v. Hairhlgc, 2 Wnis. Saund. 62 b. n. : 
 Lciwl; see Winter x. Wlute, 3 Moore, 674; Ferrer et al v. Oven, 1 B. & C. 427: 
 jiulge's order ; see StUl et al v. Ildlford, 4 Camp. 17 ; Stahvorth v. Iniis, 1 3 M. <t W. 
 4(1(5 ; Wharton v. Kiiiff, 1 M. it Rob. 96 : order of nisi prius ; see Bonner v. Charlton, 
 5 East. 139: rule of court; see IVetnenhcrev.Trcsiltiau, 1 Sid. 462; Carpenter et al 
 V. Thornton, 3 B. & A. 52 : or order of evjuity ; see Doivsc v. Coxe, 3 Bing. 20. 
 
 The form of action to be followed in the uitFerent cases viiry ""th reference to 
 the mode of submission. Though no longer compulsory to moDnon the form of 
 action in any writ of summons: section 9; yet it w'U be found convenient to 
 acliiei'o to the long established division of actions. This too would appear to be the 
 viuw of the judges in framing our new rules : see Forms 29, 30, to New Rules. 
 
 I. Assumpsit. — The submission implies mutual promises to perform, and for 
 nonperformance of these promises this action will lie : see Hodsdtn v. liar ridge, 
 
 2 Wnis. Saund. 62 b. n. ; Brown v. Tanner, McCl. & Y. 464 ; Pnrslow v. Baily, 2 Ld. 
 Rayil. 1039 ; Tilford v. French, 1 Sid. 160 ; Squire v. Gr'vette, 2 Ld. Rayd. 961 ; 
 Luimt v. Wehon, 11 Mod. 170; Mansell v. Burredge et al, 7 T. R. 352; Charles v. 
 Curroll, 9 U. C. Q. B. 357. 
 
 II. Case. — If the award impose a duty upon one of the parties, for instance, 
 that he clean and keep clean a certain drain, it would appear that in the event of 
 non-feaznnce the opposite party, if prejudiced thereby, might maintain this form 
 of action : see Sharpe v. Hancock, 7 M. & G. 354. 
 
 III. Covenant. — If the submission be by deed, this form of action may be main- 
 tained for non-performanco of any part of the award : see Tait et al v. Atkinson, 
 
 3 U. C. Q.B. 162 ; Tomlin v. 3fayor, <tc., of Fordwich, 6 N. A M. 694 ; Chamley v. 
 Wmtanley, 5 East. 2(. > ; Marsh v. Bulled, 5 B. A Al. 507. 
 
 IV. Debt. — If the submission be by bond, this form of action will lie to recover 
 the penalty upon breach of the condition of such bond : see Ferrer et ux. v. Oven, 
 7 B. »t i;. 427 ; Boyd et al v. Durand, 5 0. S. 122 ; Uuglua v. the Mutual Fire Insur- 
 
 
 I i 
 
i< i 
 
 224 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 1C3. 
 
 ' 
 
 <'i 
 
 
 t 
 
 i 
 
 ■ 
 
 if 
 
 
 w 
 
 .>i3klL 
 
 awe Co. oftheJ)id. of Netocastle, 9 U. C. Q.C. 387 ; Loasing v. Horned, Tay. U.C. 
 It. 83 ; Jkaslei/ v. Sleqman, Tay. U. C. R. 498 ; Skinner v. Holcomb, E. T. 5 Yic, 
 J/X R, «fe II. bi(?. "Arbitration and Award,"' VI. (2) 11 ; Purslow v. Baily, 2 Ld. 
 Rayd. 1039. Tliis action will also lie to recover a sum of money awarded upon a 
 submission whether made by rule of court, deed, or writing not a deed ; see 
 Uodsden v. Ilarridge, 2 Wms. Saund. 62 b. n. ; Baker v. Booth, Draper's Rep. 68 ; 
 8. c. 2 0. S. 373 ; Pursloto v. Bailu, 2 Ld. Rayd. 1039 ; SutcUJe v. Brooke, U m' 
 A "W. 855. 
 
 As to the time for entering n verdict subject to a reference upon which an 
 nward has been made : see Laurie v. Russell, 1 Prac. R. 30 ; 0' Toole el at v. PdU 
 7 E. & B. 102 ; Allen v. Boice, 10 U.C. L.i. 70 ; Blanchardv. Sjiider, 28 U.C. Q.B. !!lo! 
 
 Second. Prccoeding by attachment. Whenever the submission is by or can be 
 made a rule of court, and the award be not for the payment of money, tlie remedy 
 by attachment may be adopted : Stat. 9 <fe 10 Wm. III. cap. 15. If for payment 
 of money there may be writs oi fieri facias and vendidotii exponas : Con. Stat. U.C. 
 cap. 24, s. 19; Clifton v. Bitrand, 3 Prac. R. 60; In re Thomas and Brooke, ATS; 
 The Niagara and Detroit Rivers Railway Co. v. Bnckwcll, lb. 82 ; Rcjina v. tiiimi- 
 son, lb. 339. When an award has been made a rule of court, a party who fiiiis 
 to perform what the award orders is considered as«disobedient to a rule of cuiirt 
 as much as if the award were part of the rule, and is consequently guilty of a 
 contempt of that court by which the rule has been made. The ])roees3 thcrcfi'ie 
 by which the courts punish contempts, being an attachment, will, in cases other 
 than awards directing payment of nionej', be issued against him to compel hi* 
 obedience to the directions of the arbitrator under n penalty in ordinary eases uf 
 imprisonment until he comply. But if the period of imprisonment be linihed, the 
 party undergoing such imprisonment is not thereby exonerated from the per- 
 formance of the award : The Queen v. Ilcmsworth, 3 C. B. 745. This case is in 
 many respects a most important one. In it the several steps towards bringins; a 
 party into contempt and the pains thereof, together with all necessary ft rms of 
 procedure, arc carefully mentioned. Though an award find one party indebted 
 to the other, if there be no order to paj' the money there can be no attachment. 
 If there be no order to do a thing, it stands to reason that a party cannot be at- 
 tached for disobeying it : see EdgeU v. DaUimore, 3 Bing. 034 ; Scott et al v. Williaini, 
 3 Dowl. P. C. 508 ; Thornton v. Ilornhy, 1 Dowl. P. C. 237 ; In re Seaward \. Horn, 
 7 Dowl. P. C. 318 ; Snook v. IMh/cr, 2 Chit. R. 43 ; In re Sheteetal, 7 Dowl. P. C.tilff; 
 see Doe d. Clarke ct al v. Stillwc'll et al, 8 A. & E. 645. This remedj', whether /./k. 
 or attachment, will not be allowed unless the pai-ty sought to be attached has had full 
 and distinct notice of the duty that is required of him : Clifton v. Durand, 3 I'rac. 
 R. 60 ; In re I'homas and Brooke, lb. 78 ; The Niagara <j- Detroit Rivers RailwayO. 
 V. Buckwell, lb. 82 ; The Qitccn v. Siwpson, lb. 339. The duty— the whole and 
 entire duty — with which it is sought to charge the party, must be distinctly 
 ascertained by the award : Graham v. Darccy, C. B. 540, per AVikle, C. J. If 
 the award in its meaning be doubtful, the Rummary remedy will be refused; 
 Ileatherington v. Robinson, 7 Dowl. P. C 192; see also Slulworth v. Inns, 2D. il'L 
 428 ; In re Manlrtj and Anderson, 2 Prac. R. 106. So if the validity of the award 
 be doubtful: Rignohk v. Burkhart, 1 Prac. R. 213. And the party applying will 
 be left to his remedy by action upon the award : see Grahani- v. Darccy, ti C. 13. 
 537. When it is considered that it is the sunmiary process of the court tbntis 
 asked, it is necessary that the materials upon v.hicii it is invoked should be 
 perfect and show that the party is truly entitled to ask for what he does ; In u 
 McLean v. Kezar, 1 Prac. R. 126, /)fr Burns, J. The original award when prac- 
 ticable should be brought into court and the rule drawn up on reading it : ]l>- 1-5. 
 The affidavit should deny payment " of any part" of the sum awarded : Ilantcar 
 v. Chambers et al, 4 U.C. Q.B. 171. The rule is properly a four doy and not a six 
 day rule: Jones v. Reid, 1 Prac. R. 247. It will not be made absolute in the first 
 instance, though the parties consent by their counsel : Stewart v. Cratcford, Tay. 
 
g. 163.] 
 
 SETTING ASIDE AWARD. 
 
 225 
 
 wise, ) as upon a reference made by consent under a rule 
 of one of the Superior Courts of Common Law or tbe order 
 
 U. C. R. 409. If it be altogether refused, the court will rnrcly if ever reserve 
 leave to move ngnin: Reipnkh v. Burkhart, 1 Prac. 11. 21.3. The summary re- 
 nietlv 13 always discretionary with the court. It was refused in a case where it 
 aiiiiearcd that subsequently to the award the parties entered into a new arrange- 
 ment: Thompson et al v. Mackhm, 1 Prac. R. 293. The e.vecution by defendant 
 of an assignment in trust for creditors is no answer to an attachment for non- 
 piTforniaiice of an award : McKcnzic v. McKemie, 2 Prac. R. 157. 
 
 (/) It is enacted "that any arbitration or umpirage procured by corruption or 
 undue means shall be judged and (steemed void and of none effect, and accord- 
 injlv be set aside bj' any court of law or equity, so as complaint of such corrup- 
 tioQor undue practice bo made in the court where the rule is made for submis- 
 sion to such arbitration or umpirage, before the last day of the ue.xt term after 
 buch arbitration or umpirage made and published to the parties:" Stat. 9 A 10 
 Wii;. HI. cap. l.*), s. 2. It may be mentioned that this statute is declaratory 
 only, and does not therefore affect the common law jurisdiction of the courts to 
 rt't ii.sido an award made in an action wider a suhmmion bi/ rule or order. Hence 
 in tlii'se latter cases the limitation of the statute as to tbe time within wliich a 
 party sliould apply to set aside an award does not apply : see remarks of Cole- 
 I'idijo, J., in liainolds v. Aakew, 5 Dowl. P. C. (582 ; see further Ilobbs v. Ferrars, 
 i bowl. p. C. 779; Allenhy v. Protidlock ct al, 4 Dowl. P. C. 54 ; Paxton v. The Great 
 Korlli of Kticjland Radwny Co., 8 (I. B. 938 ; and remarks of Burns, .1., in Laurie 
 V, Rumll, 1 Prac. R. 30 : see also section 1(55 of this act. The application to set 
 asiik' an award under the statute can only be made wiien the submission to the 
 award is or can be made a rule of court : Mitchell v. Stavcleji, 1 6 East. fi4, per 
 lj.iyluy,J. ; Vealev. War7ier, 1 Wms. Saund. 327 c. notes; Cnmmiiiij v. Allen, Tay. U, 
 C. R. illy. An award cannot be set aside upon tbe merits except under clear and 
 Ktruordinnrj' circumstances : Winter \. Lethbridge, 13 Price. 533 ; Scolell v. Oil- 
 woKi', 5 U. C. Q. B. 48 ; see also Thh'kell v. Strac'han, 4 U. C Q. B. 136. It is now 
 luld that the decision of an arbitrator, whether lawyer or layman, is binding on 
 the parties both in matters of law and matters of fact, unless there has been fraud 
 or corruption on his part, or tlierc be some mistake in law apparent on the face 
 of the award or of some paper accompanying and forming part of the same; 
 Ihhjkinxnn v. Fernic et al, 3 U. B. N.S. 1 89 ; Ilogrfe v. Biu-f/css, 3 II. it N. 293 ; Bag- 
 wllii V. Marthv'ick, 4 L. T. N.S. 245 ; Gibbon v. Parker, 5 L. T. N.S. 584 ; Lnita v. 
 %Mrid,je, 7 U. C. L. J. 207 ; McDonald v. McDonald ct al, 7 U.C. L. J. 297 ; Severn 
 ftnlv. (Josgrove, 2 U.C. L.J. N.S. 11 ; Godfrey v. Broderick, 14 Ir. C. L. R. App. 
 Kxiii. And yet the court will interfere if it be made to apjiear that either party 
 lias not iiad an opportunity of explaining or examining into the whole matter sub- 
 mitted: Small V. Pogem, II. T. 4 Vic. MS. R. & H. Dig. "Arbitration and Award," 
 ^.ti. Or tiiiit the arbitrator has unintentionally conuiiitted a gross mistake: 
 hrc Ifall and Hhub, 2 M. A G. 847; Fbjnns. Pobert.wn, L. R. 4 C. P. 324. 
 Tile court, iiowever, will not intend matter for the purpose of setting a.side tlic 
 award ; sucii matter must be shown affirmativelj' : Tracci/ v. Hodgcut, 7 IT. C. 
 Q. B. 5. The application will seldom be entertained unless som^tiiing can bo 
 alleged amountiug to a perverse construction of the law or misconduct on the part 
 of the arbitrators: Phillips v. Evans, 12 M. & W. 309; Ilaffgcr v. Baker, 14 M. «fe 
 ^V. 9; JoHcs V. Corry et al, 5 Bing. N. C. 187 ; Doe d. Oxenden v. Cropper, 10 A. 
 i'E. 197; or some ground appearing on the face of the award, on a statement 
 annexed to it, or on something in an authentic shape before the court: see Kent 
 I V. Kktob ct al, 3 East. 18 ; Chace et al v. H estmore, 13 East. 857 ; Sharman v. Bell 
 ''a', 5 M. (t 3. 504 ; Payne v. Massey, 9 Moore, 660 ; Eiehardson el al v. Nourse et 
 \ «'. 3 B. <': Al. 237 ; Bouttilier v. Thick, 1 D. & R. 366 ; Municipality of the Town- 
 lb 
 
 i 
 
 v t 
 
 
 
226 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 163. 
 
 of a Judge thereof, {k) 19 Vic. c. 43, s. 87 ; 19 Vic. c.90, 
 s. 13. 
 
 ship of Kingston v. -Day, 1 Prac. R. 142; Price v. Jones, 2 Y. <fe J. 114 ; Si/met^, 
 GoodfcUow, 2 Bing. N. C. 532 ; see further Lelver v. Barnes, 1 Taunt. 4S ; I^hiU'm 
 V. Eoans, 1 2 M. <fe W. 809 ; Ilagger v. Baker, 14 M & W. 9 ; Doe d. Madkim et oi 
 V. Ilorner et al, 8 A. & E. 235 ; Fidler v. Fenwick, 3 C. B. 705 ; Faviell v. 'Ik 
 Eastern Counties Railwax) Co. 17 L. J. Ex. 223, 297. Still tlie court has a discre- 
 tion to decline setting aside an award on grounds which, if fatal, could be taken 
 advantage of by way of defence in an action on the award, or on resisting a motion 
 for an attachment: In re Smith et al v. George et al, 12 U. C. Q. B. 370. Whenever 
 a certain fact is relied on to set aside an award, that fact must be distinctly sworn 
 to ; Slack v. McEathron, 3 U. C. Q. B. 184. An award cannot be set aside on the 
 ground that the submission was obtained by fraud ; the application should be to 
 set aside the order : Sackctt v. Owen, 2 Chit. 39 ; and will not be set aside becau-e 
 the style of the cause in which it is intitled is not set out correctly and at length, 
 
 tn'ovided it can be sufficiently identified by reference to the body of the award as 
 )eing in the cause referred : Creighton v. Brown et al, 1 Prac. R. 331, In tiierule 
 nisi for setting aside an award, it must be stated that the award is drawn up "on 
 reading the award" or a "copy of it:" Wilkins v. Peck, 4 U. C. Q. B. 263. Tlie 
 ■ atHdavits filed and necessary to brin^ the party into contempt should be speciii- 
 cally referred to : Dickey et al v. MuUiolland, 2 Prac, R. 1G9, But snch an objec- 
 tion is well answered by showing that among " the affidavits and papers filed," 
 on rending which the rule was drawn up, there is a copy of the award veritied 
 by affidavit : Tracey v. Ilodgest, 7 U. C. Q. B. 5. The rule must state the severJ 
 objections intended to be insisted upon when moving it absolute : K. G. pr. HI; 
 Boodle V. Davies, 4 N. «fe M. 788 ; Whatley v, Morland, 2 C. & M. 347 ; Anmhiji. 
 Proudlock et al, 4 Dowl. P. C. 54 ; Staples v. //ay, 1 1). <fe L. 7 1 1 ; and should be chann 
 up on reading the rule of reference: Christie v. Ilamht, 5 Bing. 195. ^Vliereaii I 
 award is set aside for irregular proceedings oli the part of the arbitrator, siicli ;« 
 the examination of witnesses in the absence of parties, it will be set asitlewitt 
 out costs : Campbell v. Boulton, M. T. 6 Vic. MS. R. it \l. Dig. " Arbitration asj | 
 Award," VII, 3, per Jones, J, 
 
 (A) Arbitrators acting xmder a deed of submission have no power to award j 
 OS to costs, unless the power be given by the deed ; Wilson v, Doolan, Ir. I 
 Jur. 0. S. 135. But the excess if severable does not vitiate the award: hrtl 
 the Corporation of Northnmberland and Durham and the Corporation of Cokum 
 20 U. C. Q. B. 283. The subject of costs is one of no ordinary perplexity toj 
 arbitrators and others concerned in arbitraments. For the convenient unJer-f 
 standing of it, a distinction may be drawn between "costs of the cause," "cosiil 
 of tlie reference," and " costs of the award." Faeh of tiiese may be separatelrj 
 defined. Costs of the cause comprise the costs incurred in the cause up to tluj 
 time of the submission, the costs of the order of reference, and of making il| 
 a rule of court, and the costs of ulterior proceedings in the cause, if any, after tb( 
 award. Costs of reference comprise the expenses of the whole inquiry incnrred I 
 the parties before the arbitrator, whether with respect to the matters in tlie caus^ 
 or matters out of it, as for instance, the costs of a brief in the cause referred, pr 
 pared after the reference for the purpose of the arbitration. These costs if le| 
 to the discretion of the arbitrator, may, it seems, be fixed by him and awnrJa 
 in an entire sum: Laurie \. Russell, 1 Prac. R. 65. But if a very extravngail 
 sum be awarded, the court would undoubtedly interfere to prevent extortion ani 
 injustice: Towsley v. Wyihes, 16 U. C. Q. B. 139. Costs of the award comprise tM 
 amount of the arbitrators' charges, which are usually paid to him when tli^ awarj 
 is taken up. On an award in favour of defendant " with the usual costs," it '^jj 
 held that defendant was entitled to the costs of the reference and the awan: 
 Daniel v. Mafier, Hayes, 366. The fee of the arbitrator, whether named by him or no] 
 
 
8, 103.] 
 
 POWER OF AWARDING COSTS. 
 
 227 
 
 is subject to taxation by the master : see Miller v. Rohc d al, 3 Tnunt.461 ; Fitxgernld 
 V. GruHst cl al, 5 Taunt. 342; Laurie v. Jiuxsell, 1 Prac. R. 65. But lield that tlie court 
 1,(18 no general authority to make an order on an arbitrator to refund so niueh of 
 lii^ fee ns ex(ieods the amount allowed on taxation : Ihsuctt v. Gingdl, 2 M. (fe G. 
 870. The fees of arbitrators are now regulated by Stat. 29 Vic. cap. 32. 
 
 The power of awarding costs appears to be necessarily consequent on the 
 autliovily conferred upon the arbitrator if he be authorised " to determine the 
 cftiiso." Tlie reason why in references to arbitration a provision is frequently 
 inst'ited tliat costs shall abide the event, is that the arbitrator mi^ht not have it 
 in his power to withhold costs from the j)arty who is in the riglit. It lias been 
 considered as a restriction of a power which he otherwise would have : 7?oe d. 
 Wood v. Doe, 2 T, R. 644, per cur. approvingly cited in Whitehead et al v. Firth, 
 12 East. 167 ; see also Anon. Lofts. R. 34. This rule is confined to costs as be- 
 tween party and party ; it does not extend to costs between attorney and client : 
 Wkikliead et al y. Firth, 12 East. 167. The arbitrator has no power of himself to 
 tax costs in the cause : Morris v. Morris, 27 L. T. Rep. 103, per Conipton, J. But 
 Diiiy fix the costs of drawing up the award and bis own fees : Boyle v. Humphrey 
 (tol, 1 1'lac. R. 187. Where the cause and " all matters in difTerence" were re- 
 ferreil, but tlie submission which was by bond said nothing of costr 'eld that 
 the costs of the cause, being matters in difference, the arbitrator had power 
 over them, but not over the costs of the reference: Firth v. Robinson, 1 B. it C. 
 27". If the reference and award be silent as to costs, each party pays bis own 
 costs of reference and the costs of the award are to bo borne equally : Glen 
 V. The Grand I'runk Jiadivay Co. 2 Prac. R. 377. Where an award is made as to 
 cists without power to do so, if the amount be separable the award is only 
 bad pro tanto : Faulkner v. Sautter, 1 Prac. R. 48 ; In re The Corporation of 
 Xorlhumherland and Durham and the Corporation of Cohoiirg, 20 U. C. Q. B. 283. 
 Wliere the reference was of " all matters in dispute, costs to abide the event," 
 hU tlifit the arbitrator had no power over the costs of the reference : Stmtt 
 T. Rofi'rK, 7 Taunt. 214. Where the terms of a rule of reference direct costs 
 to abide the event, the legal event is meant. The losing party is liable to pay 
 Eiieh costs as he must have paid had the cause pursued its ordinary course and 
 a verdict had passed against him. The costs of the arbitration cannot, it seems, 
 be iiieliided unless by express direction: Hale v. Matlhison, 3 O. S. 78. Where 
 owing to the misconduct of a party to the reference arbitrators do not make 
 their award, but the award is made by an umpire in favour of one of the par- 
 Itif.s costs will not be granted to the other party on a summary application 
 Innder a clause in the rule of reference "that if either party shall by alfeeted 
 .lay or otherwise wilfully prevent the ai'bitrators or umpire from making 
 Ithtir award, he shall pay such costs to the other as the court bhall t'>iuk reason- 
 jible and just:" Proudfool v. I'rotter et al, 1 U.C. Q.B. 398. If a geneK.l power as 
 Ito cust.s be delegated to the arbitrator, lie will have full authority over costs of 
 |lie reference : see Wood v. 0' Kelly, 9 East. 430 ; Bradhy v. Tioistow, 1 B. «fe P. 34 ; 
 l'h'j(rnld v. Graves et al, 5 Taunt. 342. In the absence of any specific direction the 
 Nts will follow the verdict : Mackintosh v. Blyth, 1 Biiig. 270, per cur. Where an 
 pier of nisi prius was silent as Lo oosts, it was held that the arbitrator had no 
 luthority to adjudicate upon them, and that each party should bear his own ex- 
 rases and the half of the award : Taylor v. Lady Gordon, 9 Bing. 573, per Tindal, 
 .J. Where after a payment into court by defendant there was a reference without 
 fiention of costs, held that the arbitrator had no power over the cossts incurred 
 (efoie tiie payment into court ; for defendant by the pajnuent had admitted that 
 was in error up to the time of the payment: Stratton v. Green, 8 Bing. 437. 
 Fbere there is a reference by judge's order to arbitration and the costs of tho 
 won and of the reference are left in the discretion of tho arbitrator, tho costs of 
 "king the submission a rule of court are in the discretion of the court : Carter 
 Tlie Burial Board of Tong, 5 H. «fe N. 523 ; and will not be given unless there 
 
 \%\. x\A 
 
 1 ■ i 
 
 !!'{■« 
 
238 
 
 THE COMMON LAW rROCEDURE ACT. 
 
 [s. im. 
 
 
 ijj 
 
 
 f 
 
 ^l 
 
 
 4 
 
 s 
 
 vm 
 
 <*• 
 
 . 
 
 1^.*- 
 
 
 
 
 1 • 
 
 
 
 
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 ¥i 
 
 rm 
 
 l' 1,1- 
 
 
 When the 
 
 rcfii'ciu'c is 
 iniiilc ;i iiilo 
 of Omrl, 
 cnso may lie 
 rcmitti il to 
 the urbitra- 
 
 104. (0 In case in any reference to arbitration, whether 
 under this Act or otherwise, the submission be made a rule 
 of any Court of Upper Canada, (m) such Court or a Jud;:e 
 thereof (n) may, at any time, and from time to time, (o) 
 remit (p) the matters referred, or any or either of tbcm, {(j) 
 
 be a previous demand of the money : 76. ; see also Hartin v. Stimoit et al, 7 U. C. 
 L. J. 184. If a cau.se at nisi {irius has been referred to arbitration, and in con* 
 quence of any default the proceedings of the arbitration become nugatory, the 
 party ultimately suocessfid is not in general entitled to the costs of the aburtive 
 proceedings: O'Driscoll v. Macartney, 9 Ir, Law Rep. 570. 
 
 (/) Taken from Eng. Stat. 17 it 18 Vic. cap. 125, s. 8. The object of tlii? 
 section i:^ to confer upon the courts a convenient power which formcrl}' was 
 only exercisable when expressly given by the submission, rule, or order of refer- 
 ence between the parties. A court of equity may act under this section: hn 
 Warner and roicell, L. R. 3 Eq. '201. 
 
 (m) It is clear that this section applies to the various references mentioned 
 in tli'j act, such iis compulsory i-eforences under section 158, and references by 
 consent under sections 102 and 163 : see In re Morris and Morris, El. & B, ui 
 
 (n) Court or Judge — Relative powers: see note w to section 48. 
 
 (o) From time to time, &c., intending a second, third, or more reference? if 
 necessary: see In re Manle;/ and Anderson et al, 2 Prac. R. 351. As to the iicoiv 
 sity for tliis provision, see Nickalls v. Warren, 6 Q. i). (515. A man whose ciiii.-eii 
 referred ought not to be in a worse position than if his cause were tried in the 
 ordinar}' uianner : Holland v. Judd, 3 C. B. N. S. 820. The jurisdiction cannut 
 be ousted by inserting a prohibitoi-y clause in the consent : Coleman v. The Ccti 
 ^ Youylial liailwaij Co. 13 Ir. C. L. 11. 368. 
 
 (p) The application to remit must be made within the saiue t:mo as an aiiii'.ioa' 
 tioii to set aside an award: Doe d. IJanlci et al v. Holmes, 12 it. B. 031; nndse'! 
 Broionc v. Collycr, 20 L. J. Q. B. 420; Zuchari/ v. Shepherd, 2 T. R. 781; Z^c"'. 
 Ma?/x v. Cannell, 22 L. J. Q. B. 321. The power to remit will not in general be j 
 exercised unless the award be egi'cgiously wrong or not sanctioned by the cvi- j 
 donee : In re Brown and Overholl, 2 1'rac. R. 9 ; Wells v. Gzoweki et al, ]C U.C.Q.B. 
 42 ; Clcari/ v. Vle.ari/, 10 Ir. C. L. R. 329 ; in re Smith and Ranney, 2 Prac. R. 82. 1 
 Reference bach refused on the ground of the discovery of new evidence: J/cC/'M j 
 V. Muitland, 2 Prac. R. 279. Refused imless the court could, if so disposed. J^t | 
 aside the awe.rd: Iloyge v. Buryess, 3 II. <fc N. 293; Latta v. Wallhridge, 71'. C. 
 L. J. 207. Where on an application for an attachment it appeared that dcfond.iatj 
 had not attended the arbitration, through some misapprehension, the matters wirej 
 referred back under a power contained in the submission : Bleecker v. LoyAl 
 2 Prac. 11. 14. Where the submission gives the arbitrator power over costs, t!iej 
 court, on "onding the award back to him, m.ay direct that the co.sts of Hie nilej 
 h': ■ -, in his (tiscretion: Pearson v. Overcll, 12 W. R. 709; see also JM'JC v.J 
 " ^. & B. 946. 
 
 ' q\ .i of referring back the whole matter in dispute because of a dcfectival 
 
 r ., iiin. a^ *': uart, that part may be referred back and the remainder retained. >* 
 +:■ ■ ■• <>•■ ainder the arbitrator is fundus officio. There is a great differenc( 
 
 bvtwc, i! , <rring back an award altogether and referring back a particular psr 
 of it. ll an award generally and not u part thereof be referred back, the arbitn 
 tor may be called upon to hear the whole case again : see remarks of Denmaii 
 C. J, la Nickalls v. Warren, 6 Q. B. 618. If the award be sent back for a specif 
 
161.] 
 
 REMITTING CASES TO AHBITUATORS. 
 
 229 
 
 canii'jl 
 
 to the reconsideration and redetermination of tho arbitrator or t'ls u,r re- 
 arbitrators or umpire, as tho case niaj require, (r) upon such tioii', ^c. ' 
 
 UdofecH 
 
 liculav l* 
 Vhe (irbitn 
 
 iiurpo-e, and tlie nrbitrator ncptl no assistance from cither side, he is not bound 
 to ,'ivc notice to tho parties : HoKctt v. Clernenis, 1 C. B. 1 28 ; In re llnnthy v. Thu 
 Churtbcardena of the Parish of Brinbrooke tt al, 1 EI. & U. 786. Tliis holds fjood 
 eiiii'uiiilly if neither partj, after a reference back by consent, require tlie arlJilrn- 
 tnr to hciir fresh evidence: pee Baker v. Hunter, 4 D. ik L. fiDil. If tlie award 
 1)6 ?t'nt back only to alter such things ns make it bad upon the face of it, and not 
 ti vary at all tlie substance of the decision, it is clearly not necessary for tho 
 ail)itrat(ir to resummon the parties; Morris v. Morris. 27 L. T. Rep. In8. Where 
 idiiintitYwas described in an award by the wrong Christian name, t'le court sent 
 Lack the award for correction: llowett v. Clements, 1 C. B. 128. If an award bo 
 "ipoiI as to three points but bad as to one, and is sent back to tho arbitrator as to 
 that one alone, the arbitrator, it seems, cannot alter his decision as to the remain- 
 in; two: Jvhnson v. Lathuju, 20 L.J. Q. B. '2'-'>S, per Erie, J. The amended award 
 mill not recite the order by which the award was referred back: Baker v. Hunter, 
 4 1>. it L. ti'Jt). In one case it was held that the party disputing the validity of 
 anawanl might apply to the court to refer back the award, and that the court might 
 do -0 as wiien setting aside an award tmder like circumstances : Bradlei/ et ux. 
 V. Fhrlps, 6 Ex. 897. Where a letter, alleged to have been written by one of the 
 linrticri to a reference, was not discovered until after award made, but which the 
 arbitrator swore would, if discovered in time, have materially affected his deci- 
 finn, the award was referred back: Biimnrd v. Wainwriyht, 10 L. J. Q. B. 423. 
 And whore the rule of reference provided that "in the event of any application 
 kir.f; made on the subject of the award," the court should have power to remit 
 sin'h award, held that a rule for the payment of the money was an " application" 
 within the meaning of tho provision, and empowered the court to remit the 
 award; Johnson v. Latham, 19 L. J. Q. B. 329. Where an arbitrator upon a 
 rffiTcnce from nisi priu.s found a sum due to plaintiff within the jurisdiction of 
 ilic inferior courts, but expressed an opinion that the cause was a proper one to 
 111' tiiud in the superior courts, held that there was no power to refer back for the 
 arbitrator's certificate as to the costs, but that the proper course was to lay his 
 award before the judge at nisi prius, who would exerei:-e his discretion: Wchlnrv. 
 la. 1 1), it L. 584. It is a rule of extended application that the court cannot 
 ruiivi! aflldavits to explain the intention of the parties to a written instrument, 
 if ^lioil afliilavits are in contradiction of the instrument sought to be exjdained. 
 Whire therefore upon a reference by order of nisi prius, tho parties agreed that a 
 ■'atiMiient of certain sums admitted to be due to the plaintilf should be annexed to 
 the order, and one of these was £750, but by mistake of a copying clerk was writ- 
 ten £450 ; held that the mistake was in effeot the mistake of the plaintiff, and could 
 not be amended : Wynn v. Nicholson, 6 D. «fe L. 7 17. The arbitrator shmdd make his 
 award within three months after ho shall have entered on tlie reference: see sec- 
 tion 171 of this act. Where the costs which an award had directed defendant to 
 fay had been taxed, but the award was, as to one part of it, referred back to tho 
 [ arbitrator, held that a second taxation of costs was necessary : Johnson v. I^a'ham, 
 '-' L. J. (}. 1>, 2r-ii. If under the original reference the arbitrator has power over 
 the costs of the reference and of the award, that power continues as to the costs 
 of the award when referred back: Meliae v. MrLean, 2 El. & B. 94(5. If an arbi- 
 trator, when an award has been referred back to him, hear fresh evidence, and 
 tlununon amend his award so as to supersede part of his former award, the costs 
 ot iiroving the part so superseded should, it seems, be divided between the par- 
 Itks; Blair v. Jones, 6 Ex. 7(»1. 
 
 {'■) As the case may require, i. e. as to the whole matters referred, or any part 
 thiivof, in the discretion of the court or the judge to whom application is made 
 under this section. 
 
 If f' 
 
 ' tf' 
 
 
 1 
 
mM 
 
 Mm 
 
 230 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 165. 
 
 terms OS to costs and otherwise as to the said Court or Judge 
 may seem proper, (s) 19 Vic. c. 43, s. 88. 
 
 16»S. (f) All applications to set aside any award made on 
 
 Period with- ' *' -vini i^n-i- 
 
 in wMiii a compulsory reference, (m) shall be made (v) within the first 
 
 to set ,isi(i(! SIX days {ic) of the term next loUowing the publication of 
 
 iimiuKie, " the award to the parties, (x) whether the award be niadeiii 
 
 Vacation or in Term; (y) and if no such application be 
 
 (,■!) It is in the power of tlio court or judge to ?mposo costs or give siidi direc- 
 tions when referring bacic tiie award as may at tlie time of tiic application be 
 thouglit necessary. If the application be granted " upon payment of costs," the 
 payment of the costs will bo a condition precedent to the re-determination. 
 
 (t) Taken from Eng. Stat. 17 «fe 18 Vic. cap. 125, s. 9. 
 
 (m) The words of this section, which are restricted to awards made upon 
 compulsory refere- js (sections 158, 160), are not so extensive in meanins; us 
 those used in section 163, which relate to awards made under section Ki'i of tliij 
 act. it is not necessary that the judge's order referring a cause under sectidii 
 158 should be under a rule of court before applying under this section to set aside 
 the award: Wataon v. Bennett, 5 H. & N. 831. 
 
 ((') The obvious intention is to lay down a rule limiting the time for movinj 
 to set aside the awards mentioned in this section. That rule is impurativi', 
 Where a rule iihi is obtained before the last day of the term in which the award 
 must be moved against, the court may allow additional affidavits to be lilud after 
 that day : In re TVheeler and Murphy et al, 2 Prac. It. 32. 
 
 (w) Computation of time: see R. G. pr. 166. 
 
 (x) What is the meaning of the word "publication?" "I think that wtri 
 satUficil by the award having been made and notice having been given to the pat<in 
 that it is within their reach upon payment of just and reasonable expcnst'ji. And 
 I concur iu thinking that the award cannot bo said to be ready when it isiuily 
 to be had on submitting to a wrongful demand :" Musselbrook v. Dunkiii, ',1 Bing. 
 606, per Tindal, C. J The part italicised of this definition has been uplield, but 
 the remainder has been denied: Macarthiir v. Campbell, 5 B. & Ad, 51S; soe 
 also remarks of Coleridge, J. in Reynolds v. Askew, 6 Dowl. 1'. C. 082. The 
 accei)ted definition appears to be this — An award is published when tiio partifs 
 have notice, that it is ready, without reference to the circumstance whctlRr the 
 charges are reasonable or not. The notice, it seems, should be such as to enable 
 the parties to obtain a knowledge of the contents of the award: Brooke v. 
 Mitchell, 8 Dowl. P. C. 392; Dexter v. Fttzgibbon, 4 U. C. L. J. 43. It is "ot 
 now any excuse for not applying to set aside an award within the proper time, 
 that the parties had been prevented from obtaining a knowledge of the contcntJ 
 bv the arbitrator withholding the award until paj'ment of extortionate few: 
 Moore v. Uarleg, 1 C. B. 445 ; Macarthur v. Campbell, 5 B. & Ad. 518. But it lias 
 been lu^ld under the old practice that the courts have no general jurisdiction over 
 fees paid to arbitrators under protest: Dossett v, Gingell, 2 M. A tr- 870; see 
 new Stat. 29 Vic. cap. 32. 
 
 (//) Q'l. If an award be made during term but too late to be moved against 
 within the first six days of such term, when must the application be made? I 
 The meaning of the section under consideration is not very clear upon thej 
 point. The doubt is as to whether a party desiring to move against nn award j 
 must move within the first six days of term, or within the first six days of term 1 
 
s, 100.] 
 
 ENFOROINQ AWARD. 
 
 231 
 
 made, or if no rule be granted thereon, or if any rule granted 
 thereon be p.fterwards discharged, such award shall bo final 
 between the parties, {z) 19 Vic. c. 43, s. 89. 
 
 166i (a) Any award made on a compulsory reference winnnn 
 may, by authority of a Judge, (ft) on such terms as to him 'iVv'I'ni.'nif 
 seems reasonable, be enforced (c) at any time after six I'nf.'liirci, '" 
 Jays (d) from the time of publication, (e) notwithstanding ""^''' "'^' ^'^" 
 
 next after publication, if award made during term. If tlio section will bear 
 the latter coustruction, then, for example, an award made on the fourth or fifth 
 (lay of a term must bo moved against on or before tlie tenth or eleventh day of 
 the snnie term. But if the contrary construction bo the true one, tiicn tlie party 
 wir-hiiig to move would have the hrst six days of the term next following tho 
 term in whlcli publication was made. Tlie latter seems to be the better opinion. 
 See Lnuric ,. Russell, 1 Prac. R. 30; In re Burt. 5 B. &. C. 6fi8. Thougli tho 
 section under consideration is restricted to awards made upon compulsory refer- 
 ence*, a general view of the time within which awards may be set aside ma\' be 
 here introduced. Awards for tho purpose of the inquiry may bo divided into 
 three classes — 1. Those under Stat. 9 «fe 10 \Vm. III. cap. 15; 2. Those un- 
 der the section here annotated ; 3. Those not embraced in either of the said 
 ftatutes. As to the first, the application must be made before the last day of tho 
 term next after publication; In re Burt, 5 B. A C. (1(58. As to the second, witliiii 
 the first six days of tho term next after publication: section 1(55. As to tlie 
 thiril, within the first four days of tho term next after publication (being tlie 
 perioil allowed for moving new trials), unless there is good reason for further 
 dehiy: see llawstliorn v. Arnold, 6 B. (fe C. 629; Emct v. Ogde.n, 7 Bing. 258; 
 Hu'sdbrook v. Dunlcin, 9 Bing. 605; Burges'^y. The Guardians of the Mitchehtoivn 
 Union, 4 Jr. C. L. R. 566 ; Laurie v. Russell, 1 Prac. R. 36, per Burns, J. ; In re 
 ikihnvs and Webster, lb. 75; In re Cumming and Graham, lb. 122; Murph;/ d 
 c'v. Cotton ct al, 1-1 TJ. C. Q. B. 420 ; Todd v. McDlain, A \r. C. L. R. 190. And if 
 ilie reason for delay be not satisfactory, the consent of the opposite party will not 
 facilitate the application : In, re the North British Raihony Co. v. Trowsdale, L. 
 K. 1 C. P. 401. 
 
 (:) It is apprehended that tho word "final" must bo understood sub modo. 
 The award mentioned in this section, if not moved against within tho pro- 
 scribed time, may be taken to bo so far final that it caimot afterwards be set 
 .tiJe in a summary manner ; but if the same award be sued on at common law 
 for the purpose of enforcing it, it is presumed that all the usual defences would 
 be open to defendant. It cannot be that an intentional or inadvertent omission to 
 move nijjaiust tlie award will debar the party who might have moved and taken 
 the initiative, from objecting to an award void or defective ujjon wliieh he is 
 sued, and against which at common law ho may have a good defence. 
 
 [a) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 10. 
 
 [h] By authority of a judge, intends an application to the judge to be, it is i)re- 
 fflraed, supported by affidavit. Qu. Is the order absolute in tlie first instance ? 
 The practice here enacted seems to be analogous to that of obtaining speedy 
 wccution, and therefore leads to the inference that tho order may go in the first 
 
 instance. 
 
 ((•) As to tho mode of enforcing awards in general : see note t to section 163. 
 
 ((0 The time mentioned in the English act is " seven days." 
 
 {') AVhen award said to be published : see note x to section 165. 
 
 
m' 
 
 :J': 
 
 w^-^ 
 
 :.'•• '^;S„i 
 
 232 
 
 jtiration of 
 hIx days. 
 
 ■Wlii'ii pnr- 
 tii-s 111 any 
 iiiNtniiMi'iit 
 UK'i''' that 
 any ilitl'e- 
 rciicit lii!- 
 twci'Ti thorn 
 Hliall III! 
 ri'lcncil to 
 arliitiatliiii, 
 llir Court or 
 a •liKlga 
 may slay 
 liniccfdiiigs 
 im applica- 
 tion of 
 (U'I'i'iiilant 
 anil jii'oof 
 <if ii'itaiii 
 mutters. 
 
 THE "COMMON LAW PROCEDURE ACT, 
 
 [8. 167 
 
 that the time for moving to set it aside has not elapsed. (/) 
 19 Vic. c. 43, s. 90. 
 
 167. (//) Whenever the parties or any of the parties to 
 any deed or instrument in writing made or executed, since 
 the twenty-flrst day of August, one thousand eight hundred 
 and flfty-six, (/t) or after this Act takes etfect, (t) have 
 agreed, or agree (y) that any existing or future differences 
 between them or any of them shall be referred to arbitra- 
 tion, (Jc) and any one or more of the parties so having agreed 
 or any person or persons claiming through or under him or 
 them, {l) nevertheless commences an action at Law or a suit 
 in Equity against the other party or parties or any of them, 
 or against any person or persons claiming through or under 
 him or them in respect of the matters so agreed to be 
 referred, or any of them, (m) then upon the application of 
 
 (/) See note y to section 165. 
 
 (<;) Taken from Eng. Stat. 17 4 18 Vic. cnp. 125, s. 11. 
 
 {h) When C. L. P. Act, 1856, came into force. 
 
 (t) 6th December, 1859. 
 
 {j ) One party cannot make an agreement. There mnst be the aggrcgat'io nm- 
 tinin of at least two persons. T!ie word " aj^jreenieiit" is often used as synonynioiu 
 witli promise. In this sense it appears to lie used here. And yet the party pn)- 
 mtsing or agreeing must be one of tlie parties to a deed or instrument. AVitlwiit 
 the promise of tiie other partj' or parties to tlio instrument there would be iiwant 
 of mutuality and therefore no agreement, The submission intended is manifestly 
 one by consent of parties. The section does not apply to a subsequent agrt'cnicnt 
 of parties to refer, where there is no such agreement in the original .stipiilntion 
 or instrument : Bli/the v. La/one, 1 E. <fe E. 485 ; but see Mason v. Haddan, 6 C. 
 B. N. S. 526; Ilatterslei/ v. JJatton, 3 F. «fe F. 116. A submission though of pro- 
 spective disputes has been held to be proper to be made a rule of court: J'arkciy. 
 Smith, 19 L. J. Q. B. 405. 
 
 (k) Differences of law as well as of fact are within the section; liaiiJcgger^. 
 Holmes et al, L. R. 1 C. P. 679. 
 
 (Z) Semble, assignees of a bankrupt are not persons claiming through or iinJcr 
 the bankrupt, within the meaning of the corresponding English section : Penndi 
 ct al V. Walker, 18 C. B. 651. 
 
 (»i) The agreement so made shall be binding not only upon the parties to the 
 instrument but upon their representatives, that is to say — all persons claiming 
 through or under the parties to the instrument in respect of the matter in dis- 
 pute. The words of the section do not seem to require that the action should bo 
 brought upon the very point which is in difference between the parties. It is 
 only necessary that it should be brought in respect of some of the matters agreed 
 to be referred. To bring a case within the section, it is enough if there be a 
 matter in dispute between the parties which they liave agreed to refer, and an 
 action also in respect of a matter agreed to be referred, although the action may 
 
ir,7.] 
 
 ENFORCING ARBITRATION CLAUSES. 
 
 238 
 
 the Defendant or Defendants, or any of them, (n) after 
 appearance and before plea or answer, (o) and upon tho 
 Court or Judge being satisfied (^j) that no sufficient reason 
 exists why such matters ought not to bo referred to arbitra- 
 tion according to such agreement as aforesaid, (7) and that 
 
 hftvc been brought in respect, of coine claim arising odt of tlie saino contract, 
 \sliiiii as a matter of legal right is not substantinlly disputed. Where a eliartcr 
 party cDiitained a clauso that if any difl'ereiico of opinion should aritie between 
 thf parties, eitlier in principle or detail, tho same should be referred to arbitra- 
 tiuii; and an action having been brought upon that charter party by tlie .'hip- 
 owner for tlie freight agreed upon, and a cross action by the charterers for daia- 
 agis alk'ged to have been occasioned by the unseaworthiness of the vessel, tho 
 cimrttrer being willing to refer, the court, upon his apjilication, made absolute a 
 rule to stay all proceedings in the action by the shipowner: Itutsell v, Pellegrini, 
 2S L. T. Rep. 121. And yet tho question to be referred must be ono arising 
 out of the agreement, and reasonably presumed .to have been contemplated : 
 li'((///5 V. Hirseh, 28 L. T. Rep. 151). Whore it appears to the court that a ques- 
 tion of fraud is bona fide raised, they will not stay proceedings in order to refer 
 the I use ; lb In an action on a charter party against a surety for freight, tho 
 dctViidant was not allowed a reference of n claim for compensation for a breach of 
 warnuity of tho capacity of the vessel, that being a claim of which the principal, 
 the clini'tcrer, only could take advantage, and not tho surety: Daunt el alv. 
 Lizard, 27 L. J. Ex. 399 ; see also Lury el al y. Pearson ct al, 1 C. B. N.S. 639. 
 
 {;/) Tiie application can only be made in one cotirt — that being the court in 
 vliic'li tlic action is bronght — and if an order be made in that court, it is not in 
 the power of cither party to avoid it bj' bringing an action in any other court: 
 gee J>oe d. Carthew et al v. lireuton, G Bing. 469; see also Parkin v. Scolt, 
 1 Taunt. 565. It may bo made, apparently, by n defendant, whether within or 
 witliont the jurisdiction, for there is nothing in the context to manifest a contrary 
 iiitcnlion. 
 
 (") I'ntil appearance defendant is not a party to the suit. If after appearance 
 k' pkad to the merits, he waives the privilege by this section conferred upon 
 him. The application, therefore, must bo " aifter appearance " and " before plea 
 
 or answer." 
 
 [l>) As to tho mode of satisfying the court or a judge see note v to section 44. 
 
 (7) Tills provision is one entirely new in principle. The effect of the enact- 
 DK'iit is to drive the parties from tho court to the arbitrators eho.scn or to be 
 Amm by themselves — perhaps long before the existence of difliexdties between 
 them. It has been over and over again held that neither courts of law nor equity 
 could be ousted of jurisdiction by agreement of the parties : Kill v. HoUinler, 
 1 WilH. 129; Thompson el alv. Charnoek, 8 T. R. 139; Loives v. Kermode, 8 Ta\int. 
 146; Dicas v. Jay, 6 Bing. 519 ; see also Harris v. Reynolds, 7 Q. B. 71 ; and Scolt 
 V. Aver;/, 8 Ex. 487 ; Avcri/ v. Scolt, lb. 497. Parties cannot by contract oust the 
 courts of their ordinary jurisdiction — i. e. they cannot agree that no court shall have 
 jurisdiction in case of abreach of the contract ; but it is quite legal and often bene- 
 ficial for them to agree that no cause of action shall arise out of the contract, until 
 on arbitrator or private tribunal shall have first adjudicated on the subject matter 
 and settled the sum payable ; for in that case there is no ousting of jurisdiction, 
 there being no jurisdiction possible until the sum has been ascertamod by the 
 arbitrator : Scott v. Avery, before House of Lords, 28 L. T. Rep. 207 ; s. c. 5 II. L, 
 C. 811 ; Ilorton v. Sayer, 4 H. & N. 643 ; Braunttein v. Tlie Accidental Death Aasur- 
 
 
 AKTmWf- 
 
 •1- r-*" -1L 
 
 -«..i' 
 
281 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 107. 
 
 u 
 
 t 
 
 f 
 
 
 
 tho Dcfcndunt was at tho time of tho bringing of such action 
 or suit and still is ready and willing to join and concur in all 
 nets necessary and proper for causing such matters so (o be 
 decided by arbitration, (;•) the Court in which such action or 
 suit baa been brought or a Judge thereof may make a rulo or 
 order staying all proceedings in such action or suit, on .such 
 terms as to costs and otherwise, as to such Court or Judge 
 may seem fit, («) but such rule or order may, at any time 
 
 ance On. 1 B. A S. 782 ; Lee v. Par/e, .'iO L. J. Ch. 857. Tim fiiir rosiilt nf tho 
 nutlioritic'8 in, tliat if tlio contriu't is in wuch terms that a reference to n tiiinl |kt- 
 8on or to a board of directors is a condition precedent to tho riL'lit of liie imrty to 
 maintain an action, then he is not entitled to maintain it until that conditiim jj 
 complied with ; but if, on tho other hand, the contract is to jiay for the luss(nr 
 other matter in question), with a subsequent contract to refer the question to iirbi- 
 tion, contained in a distinct clanso collateral to tho other, then that contnict for 
 reference shall Jiot oust '. ;> courts of jurisdiction or deprive the party of lii< no- 
 tion ; Kllinit V. The Roj/al I'ixchum/e As.iuriinre Co L. II. 2 Ex. 243. per Kelly, C. R; 
 SCO also Griyi/s v. liillirxjton, 27 U. C. Q. 15. 520. To a declaration for work dono 
 and materials supplied, the defendant pleaded, except as to £1-15 .3s. Id. parcel of 
 tho money claimed, that tho jilaintiff ought not to be admitted to allege tlmt at 
 tho commencement of the suit any more chnn tho said sum of ,£H6 lis. Id. wiis 
 duo by tho defendant to the plaintiff, because that after tho accruing of tiie t'luiwj 
 of action in tho declaration mentioned and before this suit, a dispute Imvin;; 
 arisen as to the amount due, an agreement was made to refer tho question ef iiow 
 much was duo to tho award of an arbitrator, and to bo bound by his award, ami 
 that tho arbitrator, having heard all tho evidence, awarded that the amount duo 
 from t lie defendant to the plaintiff in respect of tho said causes of action wm 
 £145 '.'••*. Id. On a demurrer to this plea: IleJil, that tho plea was good without 
 any alligation of payment or tender of the au.ount awarded to bo due, hmv^ 
 pleadcid only to the amount claimed in tho declaration beyond tho sum so 
 awarded to bo duo : Cumm'niffa v. Heard, 20 L. T. N. S. 975. 
 
 (»•) Tho effect of tho section is not to make tho agreement to refer a good de- 
 fence, but a ground of application for tho stay of proceedings. Mutuality must 
 bo shown. In tho first place it must bo made to appear that tho party suiiii;; had 
 agreed to refer, and that ho is suing in breach of that agreement. In the next 
 place it must appear that tho party applying was a party consenting to tho in- 
 tended reference, 
 
 (s) The court will not allow the action to proceed upon a mere suggestion of 
 fraud on tho part of defendant, but will require it to appear that tho plainthT 
 meant to rely upon some matter of fraud relevant and material to tho issne: 
 Jlirsch et al v. Iin Thurn et al, 4 C. B. N. S. 669. No order will be made where 
 tho object of defendant is merely to delay tho plaintiff: Lun/ et al v. Fearsnn etal, 
 1 C. B. N. S. 639. Courts have always had power to stay an action brousht 
 against good faith: Cocker v. Tempest, 9 Dowl. P. C. 307, per Parko, B. The 
 power of each court over its own process is unlimited: it is a power incident to 
 all courts, both superior and inferior. The exercise of the power is certainly a 
 matter for the most careful discretion, and when there are conflicting statenienta 
 of facts, it is in general better not to try the question between the parties by afti- 
 •davit : lb. per Alderson, B. A court of equity may, on tho ground of want of 
 bona fides, order a bill to bo taken off tho file: Rohson v. Dodd^, 20 L. T. N.8. Sii'^j 
 Even if tho court should refuse to stay proceedings under this section, and indeed 
 
 K' t. 
 
B. IfiS.] 
 
 CONTINOENT APPOTNTMENTH TO ARniTRATE. 
 
 235 
 
 iVIsiiill 
 
 aftorwards, bo discharged or varied as justice rc(|iurc8. (0 
 19 Vic. c. 43, s. 1)1. 
 
 IQH, («) If in nny case of arbitration, the documei f 
 autlinii/.in;^ the refcronco (r) provides that the reference .shall ii,|;i'iI'''i',ifu"o 
 bi> ti» !i hiiif^Io arbitrator, («•) and all the parties do not, nfter iMi'i'iniTn'or 
 ilKTironce.s have arisen, (.»•) concur in the appointment of an illlll'i'InlHUig 
 urMtrator, or if any appointed arbitrator refuses to act, (//) lri,.''n lim' 
 or becomes incapable of actinj;, (2) or dies, (a) and the terms ,'|„'i';l','i!!t' 
 of the document do not shew the intention that such vacancy J,',',',',",,','," /"'it 
 should not bo supplied, (/>) and the parties do not concur in '''^ i''"" 
 
 cvpn if dcfcndnnt tipplect to avail hiinst'if of its provisions, it would nijponr that 
 ho ni:iy, •'iDtwitliwtHiuilng, sun pliiinlitV for luiviu!; violiitcd his aj^rci-inciit to rufcr 
 to iiiliil ration ; Liviiujslon v. lialU, 24 L. J. Q. IJ. 200; suo also Wade v. Simeon, 
 ;i 1). it L. 27. 
 
 (/) i. I. lOitlior 1)y tlio Juil^'o wlio inado tho order or by tlio court /(» hanc: fceo 
 Shaw el ill V. Xtckcrson, 7 U. C. (i. \i. 611 ; sec al.so iioto w to suction '18. 
 
 (») Taltcn from Eng. Stat. 17 «fe 18 Vic, cap. 125, s. 12. 
 
 (,) Ihcfiiiient, i. e. Tlie submission or nKrceincnt l)et\vcon thn parties, pviilonccd 
 by wiilliii;, iiiuro verbal subinis.-jions not bein;? apparently within the section. 
 
 ("■) ( e. An arbitrator not named in the docuniont authorising tlio reference. 
 
 (/) Manifestly intending a docun; nt executed before dilTerences liave arisen, 
 but ill anticipation of sucli diHerenccB; see Collinn v. Collins, 7 W. R. 11. '5; seo 
 aNii III re J,uril, 1 K. it .J. 90; s. c. 21 L. J. Ch. 14'>; /»'o» et al v. llchham et al, 
 L. U. i Kx. 72 ; /" re the Li(juid(Hora of the Anylo Italian liauk and de Itoaaz, 
 L, K. 2 (I 15. 452; In re Ilupfcr and Wrijhtaon, L. 11. 2 Ci. li. ;!07. 
 
 (v) Xo Timn, not being a judge or other such public officer, can bo compelled to 
 net as an arbitrator or mediator between parties against his will: Crnifxhnij v. 
 Cfillin.1. ',] Swanst. SHi. As to neglect to act after having accepted the office, seo 
 ]\iUoughhii V. Willouyhhy, 9 Q. .H. 923. As to wilful delay, see Bradley et ux. v. 
 
 I'klps, il kx. 897. 
 
 (:) It luis been said that neither natural nor legal disabilities render a person 
 incapable of being an arbitrator; for ever}- person is ot liberty to chunxr whom ho 
 iikt'9 licst for his "judge, and ho cannot afterwards object to the manifest deticien- 
 cicn of those whom he has himself selected : Russell Aro. 8 ed. 105. Sup[)i)sing this 
 to hv tiie true doctrine, it will be observed that it is restricted to cases whei'o tho 
 disability, itc, was in existence and manifest when the arbitrator was appointed, 
 and Id cases where the arbitrator haa been appointed by the parties themselves. 
 If till! arbitrator bo appointed by the court, or, though appointed by consent, if 
 after liis appointment a natural or legal disability hajipeu to him, it follows that 
 the jiarlies will not be necessarily bound to continue him. 
 
 (") As to tho death of ono of several arbitrators, soo Crau'shay v. Collins, 
 3 Swanst. 90; Cheslyn v. Dalby, 2 Y. & '). 170. As to tho death of ono of tho 
 parties to a reference, seo Lewin et al v. Jlolbrook, 2 Dowl. N. S. 991 ; Jiowen v. 
 ViiUiams, 6 D. «t L. 235. 
 
 (i) A clause may be inserted in any submission to provide for tho contingen- 
 oi'.'s noticed in this section: sm Dythetcood, by Jarman, vol. 1, 53 ", C19, If thoro 
 be uu express stipulation, thou of course tliis section is applicable. 
 
 vy\ 
 
'm 
 
 236 
 
 slioulil not 
 be sui>iilic'd. 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 1C8. 
 
 appointing a new arbitrator, (f) or if, where the parties or 
 two arbitrators are at liberty to appoint an umpire (d) or third 
 arbitrator, (c) such parties or arbitrators do not appoint an 
 umpire or third arbitrator, (/) or if any appointed umpire 
 or third arbitrator, refuses to act, (*/) or becomes incapable 
 of acting, (/t) or dies, (t) and the terms of the document 
 authorizing the reference do not shew the intention that such 
 vacancy should not be supplied, and the parties or arbitrators 
 respectively do not appoint a new one, (j) then and in every 
 such instance, (Z;) any party may serve the remaining parties 
 or the arbitrators {as the case nify he) with a written notice 
 
 (c) It has been held that the death of an arbitrator defeated a reftreTico and 
 opened nj) the whole matter between the parties, so as to place them in tho same 
 position as if no I'eferonce had ever been made or agreed upon. Under these cir- 
 cumstances it was allowable for either party to abandon the submission: Ihiriicr 
 et al V. xibrahams, 4 Moore 3. And yet such conduct has never been looked upon 
 indifferent to that of a clear breach of faitli : lb. To prevent it tlie section under 
 consideration has been enacted. It has been held under tiic old practice that no 
 action would lie for refusing to nominate an arbitrator pursuant to a coveuaut in 
 that behalf: see TattersaU v. Groote, 2 B. «fe P. 131; see also Seott v. Avtry, 
 8 Ex. 487 ; Avery v. Scott, lb. 497. 
 
 ((/) Arbitrators arc not at liberty to appoint an umpire unless express authority 
 to do so be given them by the submission or other instrument of reference: see 
 Little et al v. Neivton, 9 Dowl. P. 0. 437. Under a reference to arbitration to bo 
 lield " in tlie usual manner," after each party has cliosen an arbitrator, a judge in 
 chambers will not, because of a difference as to the umpire between the two arbi- 
 trators cliosen in the first instance and before the arbitrators have theiuselvej 
 proceeded to settle the matters in dispute, appoint the umpire desired : Rowe v. 
 Collon, 5 U. C. L. J. 116. 
 
 (c) A third arbitrator must bo appointed before the arbitration proceeds. 
 An umpire may be and usually is appointed after the arbitrators have entered 
 upon the reference and are unable to agree. There are other distinctions be- 
 tween the two, unnecessary to bo mentioned here : &ee Bates v. Townley el al, 
 1 Ex. 572. 
 
 (/) Tlie appc ,ment of a third arbitrator or umpire may be a condition pre- 
 cedent to the rii,;i of the arbitrators to act. The provision under consideration 
 contemplates some such case. 
 
 (7) Tho refusal to act by an umpire named by tlie arbitrators does not make 
 the arbitrators incnpabie of naming another person. Their power continues until 
 they have named some one who accepts the oftice : see Oliver v. VollmgK, 1 1 l^«'t. 
 307 ; Trippet v. Eyre, 3 Lev. 263. This enactment api)ears to be directed to the 
 caso wliere arbitrators refuse to make an efl'ective appouitment. 
 
 (/t) See note z to this section. 
 
 (t) See note a to this section. 
 
 {j ) A special clause may be introduced into tlio submission to meet tliis case. 
 
 (k) i. c. In the several instances detailed in the early part of this secticn. 
 
 
8. 109.] 
 
 NEOLEOTINa TO APPOINT ARBITRATOR. 
 
 237 
 
 to 
 
 Ull- 
 
 )t insVe 
 
 '< until 
 
 1 Ka-t. 
 
 to tlio 
 
 to appoint an arbitrator, umpire or third arbitrator; (F) and aju.i-, 
 if within seven clear days after s^. ice of such notice (?n) no (itiiii inlio. 
 arbitrator, umpire or third arbitrator be appointed, any Judge i'.i''.jh.t 
 of either of the Superior Courts of Law, or of the Court of ''" ^' 
 Cliancery, or of any Ccunty Court, if the case be in such 
 County Court, may, upon summong to be taken out by the 
 party who served such notice, (n) appoint an arbitrator, um- 
 pire, or third arbitrator (as the case may be), and such arbi- 
 trator, umpire or third arbitrator may act in the reference and 
 make an award as if he had been appointed by consent of all 
 parties, (o) 19 Vic. c. 43, s. 92. 
 
 169. (p) When the reference is or is intended to be wiiontho 
 
 1 . ••11 1 ^ N • 1 n IVitnco 
 
 to two arbitrators, one appointed by each party, (</) either is u. two 
 party in case of the death, (r) refusal to act (a) or incapacity !ui,'i' duo 
 
 |.;ll'ty IR'g- 
 
 1. I'ls to 
 
 apiiiiiiit, the 
 
 r tiiixy, 
 
 1 ('il?t'. 
 .11. 
 
 of any arbitrator appointed by him, (t) may substitute a new 
 arbitrator, («) unless the document authorizing the reference ',',''1',',' 
 shews the intention that the vacancy should not be sup- "/,!ji',.'.j4,'.'.'|* 
 plied, (v) and if on such a reference one party fails to appoint ;[|.'i',it'r"t,Ir'to 
 an arbitrator either originally or by way of substitution as ''■'^^ "'"'"'' 
 
 (1) No particular form of words is necessary; the notice must of courso bo 
 varied to accord with the facts of the cose. As to the service of the notice, &c., 
 see R. G. ph ISl ct scq. 
 
 (m) TIio period of seven clear days appears to be a very common one vith the 
 English leu;islaturo for sucli appointments in the case of puljlic companies. Seo 
 Eng'. Stilt. ""8 & 9 Vic. cap. 18, s. 28; 8 & 9 Vic. cap. 16, ss. 180, IKl. 
 
 (») As to the powers of a judge see note w to section 48. 
 
 (0) An umpire may, it seems, be appointed under this section, tliongh the 
 instniiiiont of reference were executed before this act came into force: see In re 
 Lord, '>-\ L. J. Clian. 14.'); s. c. 1 K. & J. 90. See further, In re Liinddators of the 
 Am/h-lUtHau Bank and Francois de liosatz, L. 11. 2 Q.B. 452 ; and JJc liosay v, the 
 Amih-Ilnliaii Bank Limited, L. II. 4 Q.B. 462. 
 
 (p) Taliea from Eng. Stat. IV «fe 18 Vic. cap. 125, s. 13. 
 
 (7) Reference — intended to apply to submissions by consent of parties. The 
 instrauient of reference being the " deed or instrument in writing" mentioned in 
 bcction 1(17 of this act. 
 
 {/') Seo note a to preceding section. 
 
 (s) See note y to preceding sec* ion. 
 
 {t) See note z to preceding section. 
 
 (") The appointment may be made by cither party whose first arbitrator dies, 
 
 or refuses to aet, &c. 
 
 {'•) In which event cither of the remaiuir.g arbitrators vfould be entitled to act 
 or else the reference would lapse. 
 
 mm 
 
 1 1^ 
 
 r 
 
238 
 
 THE COMMON LAW PROCEDURE ACX. 
 
 [s. 170 
 
 w^ 
 
 ^'; ,1 
 
 
 i 
 
 
 w 
 
 
 unless tho 
 rcfer'uiie 
 provides 
 that tliu 
 •vacancy 
 Bhould not 
 be suijplied. 
 
 Two nH)i- 
 trators iiiiiy 
 always 
 appiiiiit an 
 umpire, 
 unless the 
 reference 
 forbid \t. 
 
 aforesaid, (vv) for seven clear days (m>) after the other party 
 has appointed an arbitrator, and has e:rved the party so fail- 
 ing with notice in writing to make the appointment, (a;) the 
 party who has appointed an arbitrator may appoint such arbi- 
 trator to act as sole referee in the reference, (y) and an award 
 made by him shall be as binding on both parties as if the 
 appointment had been by consent ; but th6 Court or a Judge 
 may revoke such appointment on such terms as seem just. (:) 
 19 Vic. c. 43, s. 93. 
 
 170. (a) When the reference is to two arbitrators and 
 the terms of the document which authorizes it do not shew 
 the intention that there should not be an umpire, or do not 
 provide otherwise for the appointment of an umpire, the two 
 arbitrators may appoint an umpire at any time within the 
 period during which they have power to make an award, (J) 
 
 {vv) It has been usual in ordinary submissions to provide by express stipula- 
 tion tiiat if either party fail or neglect to appoint an arbitrator within a specified 
 time, the other may upon proper notice do so for him. 
 
 (w) See note m to preceding section. 
 
 (x) As to service of notice, ttc, see R. G. pr. 131 ct seq. 
 
 (»/) It is important to note the effoct on tlie part of oitlier party to appoint an 
 arbitrator. In such case the arbitrator a2)pointed by tlie other may proceed as 
 sole referee. 
 
 (z) Court or judffe : see note IB to section 48. 
 
 (rt) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 14, 
 
 (b) When two arbitrators differ between themselves, the power to call in an 
 umpire is a most useful and necessary one. If the two arbitrators each nominate 
 a person to be umpire, and they agree that either is a proper person for the office, 
 they may choose between tho two by lot: JVeale v. Lcdper, 16 East. 61. Contra, 
 where the appointment is by lot without any exercise of judgment: In re C'amll, 
 9 B. <fe C. 6^4 ; The European and American Sfeam Shipping Co. v. Crosskcy etal, 
 8 C.B. N.S. 397. If the arbitrators agree on the umpire they need not be together 
 when tliey sign the formal appointment : In re Hopper and Wrightson, L. R. 2 Q. 
 B. 3ti7. The appointment if an umpire need not be in writing, unless so required 
 bjr the reference : Hay v. Jurand, 1 Cham. R. 27. It is not the office of the um- 
 pire, when appointed, to decide between the two arbitrators, but to decide between 
 the parties to the reference. The powers of arbitrators are often terminated by 
 the appointment of an umpire. It is his duty to decide all matters referred, 
 including those upon which the arbitrators are unable to agree. This appears to 
 be one of the leading distinctions between an umpire and third arbitrator : see 
 ToUitv. Satinders, 9 Trice, 612; liei/noUk v. Gray, 1 Ld. Rnyd. 222; 31HchelI\. 
 Harris, lb. 671; Bates v. Cooke, 9 13. <fe C. 407; Sonlsby v. Hodgson, 1 W. Blac. 
 463 ; Beck v. Sargent, 4 Taunt. 232 ; and generally see 2 Saund. 183, note 7 ; see 
 also Heatherington v. Robinson, 1 Dowl. P. C. 192 ; Harlow v. Bead, 3 D. & L. 203; 
 Greene v. Bracken, 2 Ir. C. L. R. 176. An award of umpirage is valid, though 
 
s. 171.] 
 
 TIME WHEN AWARD MUST BE MADE. 
 
 289 
 
 unless they are called upon by notice as aforesaid to make 
 the appointment sooner, (c) 19 Vic. c. 43, s. 94. 
 
 171. (d) The arbitrator acting under any such docu- Award to r>o 
 ment («) or compulsory order of reference as aforesaid, (/) ii Jcrtiuu 
 or undfc. 'ny order referring the award back, (g} shall make ^"'"'" " 
 his award under his hand, (/t) and (unless such document or 
 order respectively contains a different limit of time) (») within 
 three months (/) after he has been appointed, and has entered 
 on the reference (_k) or has been called upon to act by a no- 
 made before the time limited for the award of the arbitrators : Hay v, Durand, 
 1 Cham. K. 27 ; but see section 173 and notes thereto. 
 
 (c) I. e. Under section 168. 
 
 {d) Tal;en from Eng. Stat. 17 & 18 Vic. cap. 125, s. 15. 
 
 (f) i. e. The document in sections 168, 169 and 170 of this act. 
 
 (/) i. e. Under section 158, and probably under section 160. 
 
 (</) i. e. Under section 164. 
 
 (/() i. c. The award must not only be in writing but signed: see Everard y 
 PaKrion, fi Taunt. 625. Consequently the award to be made in any of the cases 
 enumerated in the commencement of this section must be made in writing signed 
 liy the arbitrator making it. Still it is apprehended that tliis section is only 
 cmmilativo, and that it does not deprive the parties to a submission from requir- 
 hv^ a form of award different to that in tliis section proscribed. If, for exam- 
 jili', ti!'; submission provide that the award be under the hand and seal of the 
 nvbitrato;-, an award not sealed may not be considered a sufficient compliance : see 
 ILixkrson v. Williamson, 1 Str. 116. And yet it is doubtful whetlier, in the ex- 
 ninple suppotied, the omission to affix the seal would at tliis day invalidate the 
 awai J, in such ca.-'i's there is ample discretion reposed in the courts to cause 
 foriiKil omissions to be rectified, which in one case tliey did not hesitate to oxer- 
 eise. In an old case whore the submission called for an award indented, an award 
 both in wri'.ing and sealed, but not indented, was held to be bad: see Ilinton v. 
 Croy, o Kub. 512. In a later case tlie court refused to entertain a similar objec- 
 liou: see GutlijJ'<! v. Dunn, Barnes, 55. 
 
 (0 Every well-drawn submission contains a provision fixing a period within 
 which it is declared that the award shall be made. 
 
 (j) AVhcre the declaration on an award shewed the submission to have been 
 made on a certain day and the award a few days thereafter, tlie court held that 
 it ajipeared sufficiently to have been made within the proper time : Bcid v. Jieid, 
 16 U. (a C. p. 247. If there be a limitation as to time, and tiie parties to the 
 reference go on with it after the time limited has expired, and ni&ke no olijectioa 
 till aftor award made, they cannot afterwards raise the objection tliat tlie time 
 expired before the making of the award: Tyerman v. Smith, 6 E. »t B. 719; Wat- 
 m V. Bennett, 5 II. & N. 8.'51 ; Earl of Darnley v. The Proprietors <5'c. of the 
 London, Chatham and Dover Railway, L. R. 2 il. L. 43. Contra, if tiie party 
 oliject, tliough continuing to attend: Ringland v. Lowndes, 17 C. B. N. S. 614; 
 hams V. Price, 34 L. J, Q. B. 8 ; s. c. 11 L. T. N.S. 203 ; but see Barton v. Uuber- 
 (HI, 16 U. C. C. P. 440. 
 
 [k) The appointment of an arbitrator, when by consent, dates from the submis- 
 
 Wl'i" 
 
 K n 
 
» 1 
 
 240 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 1T2, 
 
 , '1 
 
 tice in writing from any party, (I) but the parties may by 
 consent in writing (m) enlarge the time for making the 
 award, (n) 19 Vic, c. 43, s. 95. 
 
 Perio(i_^may 173. (o) Tho Court of which such submission, document 
 
 eionor other document of reference : see Antramv. Chace et al, 1.5 East. 209. The 
 award may be made on tlie same day that the document authorizing the reference 
 has been executed: see Barnardiston v. Foioler, 10 Mod. 204. The three inoiitlis 
 do not begin to run until the arbitrator has entered on the reference : Baktr v. 
 Stephens, L. R. 2 Q. B. 523. 
 
 {I) This notice of course to be effective only when the document of roforcncc 
 has been executed by all the parties, if from the reading of tlie instrument it ap- 
 pear tliat the consideration to each party is tho accession of all parties. 
 
 (m) Tho specific mode of enlargement, viz., by writing, is pointed out. It 
 must, as regards all references coining witliin the meaning of the section, be 
 carefully observed: see Burley v. Slcjjfiens et ux, 1 M. <fe W. 156, 
 
 (n) The right of the parties to a reference by consent to enlarge tlie time for 
 making an award has never been questioned. The enlargement, if tliere be a 
 jieriod limited by the instrument of reference for making the award, slioiilil be 
 made within that period. The consent must be mutual: Ruthven v. Rutkm, 
 & U. C. Q. B. 273. And the enlargement ought to be indorsed at the time it pur- 
 ports to be signed : s. c. lb. 276. But the parties by their conduct, such as ultc'nd- 
 ing meetings, <fec., liave at common law been held to authorize and assent to en- 
 largements made by the arbitrator: see Lcggelt v. Finlay, 6 Bing. 235. Where 
 the parties conducted tliemselves as if tliere were a good enlargement, an irregu- 
 lar enlar ■3meiit was held to be tliereby waived: Ilallett v. Uallett, 5 M. & W.'io; 
 see als ..luthven v. Ruthven, 5 U. C. Q. B, 276 ; Browne v. Collyer, 20 L. J. Q. B. 
 426; Hull V. Alway, 4 0. S. 875. It is usual in well-drawn submissions to give 
 the arbitrator himself power wlien necessary to make enlargements. That power 
 is consider cd as running from time to time so as to feed future enlargements; see 
 Payne v. Deakle, 1 Taunt. 509 ; Barrett v. Parry, 4 Taunt. 658 ; Leggett v. ¥hxk^, 
 6 Bing. 255. Tlie arbitrator has not the power unless express authority be con. 
 ferred upon him: In re Morphttt and Witherdni, 2 D. »t L. 967. If the enlarge- 
 ment be made pursuant to agreement in the iristrument of reference contained, the 
 enlargement is part of the submission. W'lien two parts of a deed of submission 
 to arbitration were executed, and the arbitrator endorsed the enlargements of the 
 time for making his award on one part, the court compelled the party in whose 
 possession that part was to make it a rule of court: In re Smith and Blah, 
 8 Dowl. P. C. 130. It seems clear that when the time for making an award is en- 
 larged, the enlargement, whether by the parties, the arbitrators, or by judge's 
 order, should, with a view to an attachment, be made a rule of court, as well as 
 the original submission: Masecar v. Chambers et al, 4 U. C. Q. B. 171. Where a 
 cause was referred under a judge's order containing a proviso that the arbitrator 
 Bhould make his award on or before a day appointed, but if not then prcixired to 
 enlarge the time, "as he might require and a judge of the court might think rea- 
 sonable and just," held tliat the time was duly enlarged by a judge's order obtainftl 
 after the time limited for making the award had expired : Reid v. Fryatt, 1 M. i 
 S. 1. Per cur. "Such a term ought never to have been inserted in the order of 
 reference:" lb. 3. If an arbitrator be authorized to enlarge the time by judge's 
 order, an enlargement by himself alone is insuft'icicnt : Mason v, Wallis, 10 B. i 
 C. 107, 
 
 (o) Taken from Eng. Stat. 17 & 18 'Vic. cap. 125, s. 15, 
 
173.] 
 
 WHEN THE UMPIRE SHALL ACT. 
 
 241 
 
 or order has been or may be made a rule or order, (p) or any 
 Judge thereof, (j) may, for good cause to be stated in the 
 rule or order, (r) for enlargement, from time to time, (s) 
 enlarge the term for making the award, (/) and if no other 
 period of enlargement be stated in the consent or order for 
 enhrgement, it shall be deemed an enlargement for one 
 month. («) 19 Vic. c. 43, s. 95. 
 
 173. (v) In case an umpire has been appointed, (w) and when the 
 in case the arbitrators have allowed their time to expire with- shall act. 
 
 (p) Before application can be made under this provision, it would seem that 
 the submission (if the reference be by submission), must be made a rule of court: 
 see Lambert et al v. Hutchinton, 2 M. & G. 858. 
 
 [q) Qu. Any judge in chambers : Con. Stat. U. C. c. 10, s. 9. 
 
 ()•) The rule or order cannot be made er. parte. ; it must be nhi, and to show 
 cause: Clarke v. Stocken, 5 Dowl. P. C. 32. The omission to state the "good 
 Muse" in the rule or order is only an irregularity: Ee Burdon et al, 31 L. T. 
 Rep. 164. 
 
 (s) See note n to section 171. 
 
 (t) Neither the court nor a judge had power at common law to enlarge the 
 time for making an award : see Halden v. Glasscock, 5 B. A C. 390. The power 
 was for the first time conferred by Eng. Stat. 3 A 4 Wm. IV. cap. 42, s. 39, of 
 Thich our 7 Wm. IV. cap. 3, s. 29 was a copy (now section 179 of tiiis act). The 
 power of enlargement may be exercised after the expiration of the three months: 
 Watson V. Beamn 8 W. R. 612; see also Johmon v. ColUe. 24 L. J. Q. B. 63 ; In 
 n Ward and (he Secretary of State for War, 32 L. J. Q.B. 53; Johnston v. Anglin, 
 6 Prac. R. 62 ; and even after award made: Watson v. Bennett, 3 L. T. N.S. 20; 
 Bmcne v. Collyer, 20 L. J. Q. B. 420; In re Wood and the Secretary of State for 
 War, 32 L. J. Q. B. 53 ; Lord v. Lee, 5 TJ. C. L. J. N.S. 21 ; but will not be exer- 
 cised unless fair to both parties: Edwards v. Davies, 23 L. J. Q. B. 278; McNeill 
 T. MacNeaU, 13 Ir. L. R. 104 ; Oaffney v. Killen, 12 Jr. C. L. II. App. ixv. ; nor 
 if the party applying has been guilty of great laches : Doe d. Mays v. Cannell, 
 22 L. J. Q. B. 321 ; see Lambert et al v. Hutchinson, 2 M. & G. 858 ; Andrews v. 
 Eaton, 7 lix. 221 ; Kellett v. Local Board of Health of Tranmere, 34 L. J. Q. B. 
 67; see further note c to section 179. The rule will not be granted ex parte: 
 m Clarke v. Stocken, 6 Dowl. P. C. 32. 
 
 («) I. e. Calendar month: see Interpretation Act, Con. Stat. U. C. c. 2, 8. 13. 
 "It seems clear that when the time for making an award is enlarged, the enlarge- 
 ment, whether by the parties, the arbitrators, or by judge's order, should be made 
 » rule of court as well as the original submission :" Masecar v. Chambers et al, 
 4U. C. Q. B. 172, per Macaulay, J. ; see Crooks v. Chisholm et al, 'y O. S. 121 ; 
 Charles v. Hickson, T. T. 3 A 4 Vic. MS R. <t II. Dig. " Arbitration and Award," 
 II. 3; also see In re Thirkcll et al, 2 U. C. Q. B. 173. 
 
 (f) Taken from Eng. Stat. 17 «k 18 Vic. cap. 125, s, 15. 
 
 (if) An umpire may be appointed by name in the document of reference. If 
 not so appointed, provision is made for his appointment under section 170 of thia 
 act. And it would seem that, in the absence of express directions, the umpire 
 may be appointed without writing, though for obvious reasons the latter mode is 
 in all respects preferable : see Ray v. Durand, 1 Cham. R. 27. 
 16 
 
 Z\m 
 
 ■I A\ 
 
242 
 
 TUB COMMON LAW PROCEDURE ACT. 
 
 [8. 174. 
 
 M 
 
 I r. V ''^1 
 
 
 \ 'I fti 
 
 Wlien the 
 award 
 dii'ucts pos- 
 session uf 
 real pro- 
 perty to be 
 delivered, 
 the Court 
 may order 
 such deli- 
 very and en- 
 force it as a 
 
 out making an award, (x) or have delivered to either party or 
 to the umpire a notice in writing stating that they cannot 
 agree, (y) the umpire may enter on the reference in lieu of 
 the Arbitrators, (a) 11) Vic. c. 43, s. 95. 
 
 174. (a) When any award made on any such submission, 
 document or order of reference as aforesaid, (h) directs that 
 possession of any lands or tenements capable of being the 
 subject of an action of ejectment (o) shall be delivered to any 
 party either forthwith or at any future time, (d) or that any 
 such party is entiiicd to the possession of any such lands or 
 tenements, (e) -.rt of which the document authorizing 
 
 (x) Tlie power of the umpire under this section is deferred until the arbi 
 trators " shall have allowed their time 1o expire without making an award." 
 Whether this provision is curaulal've or ho contrary is doubtful. Decisions be- 
 fore the passing of this act seom tc . ' abii • . ..hat in award of umpirage is valid 
 though made before the time limited for thi^ n i\ an! . f the arbitrators, if they dis- 
 agree and do not make any award afterwards ;" see note 6 to section 170. 
 
 (?/) As to disagreement between arbitrators : see Doddington v. Bailward, 1 Dowl, 
 P. C. 640. 
 
 («) It is established law that the umpire is to decide between the parties to 
 the reference and not between the arbitrators, in case of disagreement. Wlien he 
 enters upon his duties, the duties of the arbitrators terminate. In the words of 
 this section, he " enters on the reference in lieu of the arbitrators." It is not 
 unusual for an umpire appointed in the first instance, to sit with the arbitrators 
 and hear the evidence, but to take no part in the proceedings unless the arbitra- 
 tors disagree. This is a convenient practice, and saves at least the expense of a 
 second examination of witnesses. 
 
 (a) Taken from Eng. Stat. 17 «fe 18 Vic. cap. 125, s. 16. 
 
 (6) I. e. The order of reference under section 158, as to compulsory references 
 or the deed or instrument in writing as to references under section 167. This 
 section is made to extend to any award referred or made pursuant to those sec- 
 tions which directs that possession of any lands, <&c. 
 
 (c) By the common law an ejectment will not lie for anything whereon an 
 entry cannot be made, or of which the sheriff cannot deliver possession. In other 
 words, ejectment is only maintainable for corporeal hereditaments : Tillinghast's 
 Adam's Eject. 18 ; also see a case of ejectment for " a pasture gate " and a " cattle 
 gate :" Doe d. Haxhy v. Freston et al, 5 D, <& L 7. 
 
 (d) This accords in principle with the power of a judge to certify that execa- 
 tion may issue forthwith "or at some day to be named in such certificate; 
 section 239. 
 
 (c) The distinction between an award that one party named " is entitled to the 
 possession of land" and that "the possession of the land shall be delivered" by 
 the other, is now practically of little importance. It may, however, be mentioned j 
 that decided cases before this act established the doctrine that no interest in land 
 could be trans/erred by an award : see Rolle. Ab. Arbitrament A. ; Marks v. Marm. 
 1 Ld. Rayd. 114 ; Johnson v. M/«ow,Willes. 248; Doe d. Morris et al v. Rosser, 3 East 
 16 ; Thorpe v. Eyre, 1 A. <fe E. 926 ; see also Henry v. Kirwan, 9 Ir. C. L. R. 459. The | 
 
8S. 175, 176.] MAKING SUBMISSION A RULE OP COURT. 
 
 243 
 
 the reference has been or may be made a rule or order, may 
 order any party to the reference who is in possession of such 
 lands or tenements, or any person in possession of the same 
 claiming under or put in possession by him since the making 
 of the document authorizing the reference, to deliver posses- 
 sion of the lands to the party entitled thereto pursuant to the 
 award, (/) and such rule or order to deliver possession shalj 
 have the effect of a Judgment in ejectment against every 
 such party or person named in it, (j) and execution may 
 issue and possession shall be delivered by the Sheriff as on a 
 Judgment in ejectment. (Ji) 19 Vic. o. 43, s. 96. 
 
 175. (») In any County Court, the Judge thereof may, 
 in term, or at the sittings, or in vacation, by consent of the 
 parties, order any cause to be referred to arbitration, in the 
 same manner, with the same effect and with the same powers, 
 and in like manner may set aside any award thereon, as may 
 be exercised by the Superior Courts in any cause therein, (j) 
 19 Vic. c. 90, s. 13; 8 Vic. c. 13, s. 47. 
 
 170. (k) Every agreement or submission to arbitration 
 by consent, (if) whether by deed, or in writing not under 
 
 Jtid^ient in 
 ejectment. 
 
 County 
 Courts may 
 order refer- 
 ence to arbi- 
 tnition as iu 
 Superior 
 Courts. 
 
 Every sub- 
 luissioii to 
 arbitration 
 
 reason of the law was based upon feudal principles, viz., that lands should not be 
 aliened witliout the consent of the lord. An award need not set out a description 
 of the land by metes and bounds : The Great Western Railroad Co. v. Jiolph, 1 Prac. 
 
 R.50. 
 
 (/) An application under this section should show the reference, the subject 
 matter thereof, the award, and the parties in possession of the land awarded. As 
 to delivery of possession : see Mays et al v. Cannel, 24 L. J. C. P. 41. 
 
 (ji) A judgment in ejectment is not, as other judgments, final between the 
 parties: Cluline v. McMullen, II U. C. Q. B. 250. 
 
 (/») The writ of execution upon a judjarment in ejectment is known as a writ of 
 Mere facias possessionem. It as a general rule must, like other executions, follow 
 
 the judgment. 
 
 (i) This is a combination of the County Courts Procedure Act, 19 «fe 20 Vic. c. 
 90, s. 13, aud the old County Courts Act, 8 Vic. c. 13, s. 47. 
 
 (jf) It is not necessary to repeat here what has already been stated in notes to 
 sections 158 to 174, inclusive. Reference may be made to these sections for the 
 practice as to references by consent and otherwise, and setting aside awards. 
 
 (i) Taken from Eng, Stat. 17 <fe 18 Vic. cap. 126. s. 17. 
 
 (0 A submission by written agreement is a contract requiring to be proved 
 like any other contract if its existence be denied. It is true that by statute it 
 may be made a rule of court, but that is only for the purpose of enforcing its per- 
 formance iu A Buounary manner. The character of the contract is not alterod by 
 
 mm 
 

 mm 
 
 244 
 
 THK COMMON LAW PROC£DUUE ACT. 
 
 [8. 176. 
 
 a 
 
 Court, un- 
 less llie In- 
 Htniiiji'nt 
 forbiil it. 
 
 maybemade ftf.^]^ (^i) uiny, on the application of any party thereto, (n) 
 be made a rule of either of the Superior Courts of Law, orot 
 the Court of Chancery, or of a County Court in actions pend- 
 ing in such County Court, («) unless such agreement or sub- 
 mission contains words purporting that the parties intended 
 that it should not be made a rule of Court, (p) 19 Vice. 
 43, 8. 97. 
 
 its being made a rule of court, nor is it the rule which gives it the bindinf; effect 
 upon the parties, as in the case of a submission by rule : Berne;/ v. Read, 1 Q. B. 
 8o, per Der.man, 0. J. There can be no agreement unless there be mutualitvof 
 consideration. The consideration to one party is the signing of the other. AViih- 
 out the signatures, or at least the assent of both, there can do no agreement. It 
 has been held that an order of reference of a borough court in England, purport- 
 ing to be made by consent, and containing a stipulation for making it a rule of > 
 superior court, might be made a rule of such court as an agreement of reference 
 between the parties: Ilarlow v. Wimtanley, 19 L. J. Q. B. 430. 
 
 (m) Oral submissions are clearly excluded from the operation of this sectioD: 
 
 SCO Amell V. Evans, 7 T. R. 1 ; v. Mills, 17 Ves. 419. Where two person) 
 
 agreed b}' deed to refer all matters in dispute which should arise between them 
 in relation to a certain contract to two arbitrators, one to be chosen by each 
 party, and on disputes arising arbitrators were appointed by parol, it was helii 
 that the 8\ibniission was by parol, and could not be made a rule of court under this 
 flection : Ex parte Glaysher, 3 11. & C. 442. But in a somewhat similar case, where 
 one of the parties had appointed an arbitrator in writing, the submission wasmadi! 
 a rule of court: In re Newton and Hetkeringlon, 19 C. B. N. S. 342 ; see also In f 
 Willcox and Storkey, L. R. 1 C. P. 671. If one partner assume to execute a sub- 
 mission for a copartner, his authority to do so must be established before the sub- 
 mission will be made a rule of court: Re Aldington et al and Cheashire, 16C.B. X. 
 S. 375 ; see also French et al v. Weir, 17 U. C. Q. B. 245, 
 
 (n) The application may be made by cither party at any time either before cr i 
 after award. The practice of courts of law and equity ir this respect appears to 
 be the same: In re Taylor el al, 6 B. A Al. 217; Ross and Ross, 4 D. A L. 645; 
 Smith V- Symes, 5 Madd. 74; Pownall v. King, 6 Ves. 10; Fether stone y. Coo/Kf, j 
 9 Ves. 67 ; Ileming v. Swinnerion, 5 Hare. 350. 
 
 (o) Until this provision has been complied with the courts have no juriBdictiosj 
 over agreements of submission: see Harrison v. Grundy, 2 Str. 1178; Inrel'i'-i 
 ring and Keymer, 3 Dowl. P. C. 98 ; Davis v. Getty et al, 1 S. A S. 41 1 ; Ham^ v, 
 Slielton, 7 Beav. 455; Kirkus v. Hodgson, 8 Taunt. 733; Mayor of Balh\.P'mA.\ 
 4 Scott, 299 ; Bottomley v. Buckley et al, 4 D. A L. 157 ; In re Ross and Ron, /'f 
 648 ; see however Little et al v. Newton, 1 M. <fe G. 976. But there is inherent pnw?rl 
 in the court independently of any statutory enactment to make a judge's order orf 
 order of nisi prius a rule of court: Aston v. George, 2 B. <fc Al. 395; Harrison^\ 
 Smith, 1 D. (fe L. 876; Millington v. Claridge, 3 C. B, 609. Where it wnsflgr» 
 that a submission should be made a rule of " the court," without specifying aojj 
 particular court, the Common Pleas allowed the submission to be made a rule ol 
 that court : Soilltux v. Herbst, 2 B. «fi; P. 444. 
 
 [p) The difference between this section and that of 9 4 10 Wm. 3, cap. iJ 
 flhould be noted. A eubmission under the latter can only bo made a rule of coul 
 when the parties in the submission " agree that their suDmission of their suit tj 
 the award or umpirage of any person or persons should be made a rule of any f 
 his majesty's courts of record," 4c. : section 1 ; whereas under the sertion her| 
 
g, 177.] CASE STATED IN AWARD FOR OPINION OP COURT. 
 
 245 
 
 ! V, 
 
 & L. 045 
 
 3, cftp. 
 
 \'4 
 
 jule of colli 
 their suit ij 
 ,le of any "" 
 sertion ben 
 
 177. (q) If in any such ng;reement or submission it be 91"!'''i* 
 nrovideJ that the flauie may be made a rule of one in parti- niaybemaiio 
 pularof the Superior Courts aforesaid, it shall bo made a rule ifacnsebo 
 
 ,,.,.-, ^, . , . stated ill the 
 
 of tltat Court only; (r) and it when there is no such provi- nwani fi>r 
 sion, («) a case has been stated for the opinion of one of of a coui-t. 
 the Superior Courts (t) and such Court is specified in the 
 award, («) and the document authorizing the reference has 
 imt before the publication of the award to the parties been 
 
 annotated tlie submission mny bo made a rule of court " unless such agreement or 
 submission contains words purporting tliat the parties intendm.1 that it sliould not 
 be made a rule of court." In the former case an express clause of consent is neces- 
 farv. Ill tlie latter consent is presumed unless dissent bo expressed. As to the 
 iiitc'iitioii of the parties in such matters, see In re Woodcmfi and Jones, 9 Dowl. 
 P. ('. fioS. Where an agreement to refer matters to arbitration not under seal 
 was afterwards duly revoked by deed, the court of chancery refused an applica- 
 tiuii to make such agreement a rule of court: Ee Druri/ and Lyne, 19 L. T. N. S. 
 It.Z. The restraint upon revocation without leave of the court extends to all 
 Bubuiissions which do not contain words purporting that they are not to be 
 m.ide rules of court; see note b to section 179. But this clause does not import 
 into every submission to arbitration all the consequences of the 9 & 10 Wm. 111. 
 wp. 15, 3. 1: Smith v. Whitmort, 10 L.T. N.S. 128; Millsx. Boyley, 2 II. A C. 36. 
 A submission made a rule of the court of chancery under this clause is not within 
 tlie provisions of this act as to discovery: In re The Anglo- Austrian Bank, 10 L. 
 T. N. S. 369. An action may be maintained on a judge's order of reference made 
 bycouseut: Lievesley v. Gilmore, L. R. 1 C. P. 570. A submission was made a 
 riilu of court on the production of a verified copy of the submission, the original 
 beii!"' in the possession of the ojiposite party, who i-efused to produce it: Martin 
 V, Tlie Mayor. Sfc, of Belfast, 12 Ir. L. R. 338 ; an order may, however, be made 
 in such case for the bringing in of the submission : Hamilton v. Alford, 1 Prac. R. 
 ]:!. Submission made a rule of court without an affidavit of the attesting witness 
 who refused to make an affidavit: Shortall v. Muran, 2 Ir. L. R. 87. The making 
 the siibniission a rule of court is not a condition precedent to the making of the 
 invni'd: O'Keffe v. O'Connell, 1 F. & S. 60. As to the costs of riaking a submia- 
 siun a rule of court: see note q to section 163. 
 
 (q) Taken from latter part of section 17 of Eng. Stat. 17 <fe 18 Vie. cap. 125. 
 
 ()•) This has been the established practice ever since Stat. 9 <fe 10 Wm. III. 
 cap. 15; see Milsteady. Cranfield, 9 Dowl. P. C. 124. Where a submission by deed 
 of tiiree actions in the Exchequer and one in the King's Bench provided that 
 the ajjreetnent might be made a rule either of the court of King's Bench or 
 Exchequer, the court of Exchequer refused to allow the submission to be made a 
 nilfi of that court after it had been made a rule of the King's Bench : Winpenntf 
 V. Bates, 2 C. dc J. 379. 
 
 («) f. e. A provision that the submission shall or may be made a rule of one in 
 particular of the superior courts. 
 
 (0 As to the statement of special cases for the opinion of the court by arbitra- 
 tors: see sections 158, 100 and 162, and notes thereto. 
 
 («) The case may be stated on the face of the award, and, if stated for one 
 court iu particular, the name of that court must also appear on the face of the 
 award. 
 
 ■s'l';. 
 
 11 m 
 
 '^:iti' 
 
 
 ^.li>l 
 
m 
 
 
 1. 
 
 hi' 
 
 246 
 
 other 
 Courts not 
 to iuturfcrv. 
 
 SnbmiKNinn 
 to nrtiitrii- 
 tion if 
 agri'ed to be 
 iiiadu a riilu 
 of Court, 
 not revdca- 
 lilu without 
 leiivc of 
 Court. 
 
 TOE COMMON LAW PROCEDUllE ACT. [SS. 178, 179. 
 
 made a rule of Court, such documeDt shall be made a rule 
 only of the Court specified in the award, (w) 19 Vic. c. 43, 
 s. 97. 
 
 IT'S, (ar) When in any case the document authorizing 
 the reference is or has been made a rule or order of any one 
 of such Superior Courts, no other of such Courts shall have 
 any jurisdiction to entertain any motion respecting the arbi- 
 tration or award, (y) 19 Vic. c. 43, s. 97. 
 
 170. is) In case of the appointment of any arbitrator or 
 umpire by, or in pursuance of any rule of either of the 
 Superior Courts of Common Law or of the Court of Chan- 
 cery, or of any County Court, or Judge's order, or order of 
 Nisi Prius in any action, (a) or by or in pursuance of any 
 submission or reference, not containing words purporting that 
 the parties intended that such agreement should not be made 
 a rule of any of such Superior Courts, (6) the power and 
 
 {w) Ab nlrcndy noticed, the submission may be made a rule of court as well 
 after as before award : see note n to section 176. 
 
 (x) Taken from latter part of section 17 of Eng. Stat. 17 «fe 18 Vic. cap. 125. 
 
 (y) Tliia is consonant witli the decision of Winpenny v. Bates, 2 C. «fe J. 379. 
 
 (z) Taken from our repealed Stat. 7 Wm. IV. cap. 3, s. 29, which was a tran 
 script of Eng. Stat. 3^4 Wm. IV. cap. 42, s. .39, Before the Eng. Stat. 3 k 4 
 Wm. IV. cap. 42, s. 39, it was in the power of either porty to revoke tlio sub- 
 mission at any time before the award was made, and that whether the submission 
 was by deed or other agreement: Milne et al v. Gratrix, 7 East, 608 ; judge's order; 
 Clapham v. H'igham, 1 Bing. 87 ; or order of nisi prius : Doe d. Turnbull et al v. 
 Brown, 5 B. «fe C. 384 ; Skee v. Coxon, 10 B. & C. 483 ; Walker v. MinMn, 2 Ir. Law 
 Roc. N.S. 1 19 ; Gould'ing v. Gould'mg, 2 Ir. Law Rec. 164. But this did not releaso 
 the party revoking from an action, if ho had covenanted to abide by tlie reference; 
 Grazebrook et al v. Bavin, 5 B. <fe C. 534 ; see also Brown v. Tanner, 1 Mc C. & Y. 
 464 ; and Warhurtoti v. Storr, 4 B. «fe C. 103. It therefore often happened that upon 
 the slightest expression of opinion by an arbitrator, unfavorable to eitlier piiity, 
 that party revoked the submission: Clarke v. Stocken, 2 Bing. N. C. 651, ;/fr 
 Vaughnn. J. ; and Jamesi v. Attwood, 7 Scott, 843, /)«• Tindal, C. J. It was to 
 remedy this state of things that the statute was passed. 
 
 (a) The provisions of the act are apparently confined to civil proceedings: /?« 
 V. Bardell et al, 5 A. & E. 619 ; Rex v. Shillibeer, 5 Dowl. P. C. 238. But the court 
 will not in such a case grant a rule to restrain the arbitrator from proceeding: 
 Rex V. Bardell, 6 A. <& E, 619. Besides, in civil cases the reference unless conipleW 
 is not within the statute : Bright v. Burnell, 4 Dowl. P. C. 756. Where two arbi- 
 trators wore nominated in pursuance of a clause in a partnership deed, which 
 provided that they should appoint an umpire before proceeding, it was decided 
 that until the appointment of an umpire the reference might be revoked without 
 leave: lb. 
 
 (b) The original act was in terms applicable only where the submission con- 
 
247 
 
 Ailiitnitor 
 to ]ir(H('i'(l 
 with rel'o- 
 ruiiuu. 
 
 g 179,] ENLARGING TIME POa MAKING AWARD. 
 
 authority of such Arbitrator shall not be revocable by any 
 party to the reference, without the leave of the Court by 
 which such rule or order was made, or which is mentioned in 
 the Bubmission, or by leave of a Judge of such Court ; or in 
 case no such Court be mentioned in the submission and there 
 be DO restriction of jurisdiction as aforesaid, then not with- 
 out the leave of one of such Superior Courts, or of a Judge 
 thereof, (c) and the arbitrator and umpire shall proceed with 
 the reference notwithstanding any such revocation, and make 
 an award, although the person making such revocation do 
 not afterwards attend the reference ; (rf) and the Court, or ciZik" ume 
 any Judge thereof (as the case may be) may, from time to an awaiul'' 
 time, (f) enlarge the term for any such arbitrators making 
 their award, (f) 7 Wm. IV. o. 3, s. 29. 
 
 taincd nn ngrecment that it might be made a rule of court. This statute is more 
 extensive, for it is made applicable, imlesa the submission contain words to tiie 
 eft'icl that it shall not be made a rule of court : see Wood v. Closter, 16 U. C. Q. B. 
 41)0; see Mdk v. Bayley, 2 II. & C. 36. 
 
 ((•) The application should be by rule or summons to show cause : Clarke v. 
 Stmkm, 2 Birig. N. C. 651 ; and should properly speaking be made before the 
 award is executed : Phipps v. Ingram, 3 Dowl. P. C. 660. But may be made after- 
 wards; see note t to section 172. Leave will not be granted except upon strong 
 irouiids: James v. Attwood, 7 Scott, 843, /)er Tindal, C. J, The discretionary 
 jiowers conferred by the enactment should be exercised in the most sparing and 
 cautions manner: Scott v. Van Sundau, 1 Q. B. 102 ; Pope :. Lord Diincamion, 9 Sim. 
 1 17. It will in general be refused, unless misconduct on the part of the arbitrator 
 be shown : Jn re Woodi. oft and Jones, 9 Dowl. P. C. 538 ; Wilson v. Morrell, 1 5 C. 
 B. 720: see also Favkll v. The Eastern Counties Railwai/ Co. 2 Ex. 844. Fear of 
 an excessive award is no ground : Tfie Great Western Railway Co. v. Miller, 1 2 U. C, 
 Q.B. 654. But the coiu't in one case, considering the balance of convenience and 
 inconvenience to the parties, the unsatisfactory language used in the contract 
 between them, the uncertainty as to what was intended by the clause of refe- 
 rence, and the ample powers with which tlie courts and judges are now armed for 
 compulsory references, aHowed the reference to be revoked : In re Wright et al 
 1 mdthc Corporation of the County of Grey, 8 U. C. L. J. 109. 
 
 ((/) Though a party revoke or attempt to revoke a submission without leave, 
 I he would still seem to be entitled to notice to attend the meetings of the arbitra- 
 tors; In re Kyle et al, 2 Jur. 760. The revocation, when duly made, is a good 
 answer to an application to make the submission a rule of court : In re Drury and 
 \kM, 19L. T. N. S. 763. 
 
 ') Froh. time to time: see Leslie v. Richardson, 17 L. J. C. P. 324, as to mean- 
 I iij of these words. 
 
 (/) It has been, after some doubt, established that this clause, although an- 
 Inexed to and immediately following the provision in reference to revocations, 
 jaiiplit'3 equally to all cases, whether there has been an attempt to revoke or not: 
 Ike Doe d. Jones et ux. v. Powell, 7 Dowl. P. C. 639 ; Parberyv. Newnham, 7 M. 4 
 l^V, 318 ; Lambert et al v. Hutchinson, 2 M. <fe G. 858. The right of the court or a 
 
 
248 
 
 TIIB COMMON LAW PROCEDUaE ACT. 
 
 [8. 180, 
 
 Witncssps 
 may, by 
 oriler of the 
 Cimrt, 1)11 
 coiiipallKil 
 to iitleiiil 
 arbllratori. 
 
 180. («7) In case of a reference by any such rule or order 
 or by any such eubmiasion aa aforesaid, and in case of an 
 application to tbe Court by ^hich such rule or order wu 
 made, or to the Court mentioned io such agreement, or to 
 any Judge thereof, or if no such Court be mentioned in the 
 submission and there be no restriction of the jurisdictiou u 
 aforesaid, then to one of the Superior Courts or a Judge 
 thereof, setting forth the place of residence of any witncM 
 whose presence in desired, such Court or Judge may bj a 
 
 judge to interfere where a special power to enlftrge has been conferred upon the arbi- 
 trator is not clear, though tlie preponderance of authority seems to be in farorof 
 the proposition. Held where there was power in the arbitrator to eularge th» 
 time, but the time was tntenlionally allowed' to expire, that the court coulci not 
 interfere : Doe d. Jones et ux v. Powell, 7 Dowl. P. C. 539. Contra — Neitman t, 
 rarbury, 9 Dowl. P. C. 288. Semble, per Tindal, C. J. : " Where the rule or order 
 of reference contains no power to enlarge the time, the above enactment is a very 
 useful provision, as it enables the court or a judge to supply the defect, But I 
 doubt whether the statute empowers the court or a judge to interfere where the 
 arbitrator has power to enlarge, but has inadvertently permitted the time to expire 
 without exercising iiis power :" Lambert et al v. Hutchinson, 2 M. A G, 800 ; see alio 
 In re Salkeld and Slater, 1 2 A. A E. 767 ; Davison v. Gauntlet! ct al, 1 Dowl. N.S. 199, 
 la a more recent cane the court expressed a decided opinion that the time migiit 
 be enlarged by a judge, though the arbitrator had the power but neglected to ex- 
 ercise it: In re Browne and (Jollyer, 2 L. M. «fe P. 470, p^r Wightman, J.; see also 
 Leslie v. Richardson, 6 D. A L. 91 ; Doe d. Mays v. Cannell, 22 L. J. Q. B, 321, 
 If no power be conferred upon the arbitrator, it is clear under our statute that 
 the court has power to enlarge the time upon a proper application: Jones ttaly, 
 Russell, 6 U. C. Q. B 303, per Robinson, 0. J. The validity of an award made 
 by an arbitrator after the time limited in his authority for making it, but before 
 eiilargement by the court, is very doubtful: In re Browne v. Collyer, 2 L, M. iP, 
 470. It has been intimated that where a verdict has been taken subject to t 
 reference, the court can compel either of the parties to consent to an enlargement 
 under peril of the verdict being allowed to stand: see Mllkinson v. Time, 4 Dowl, 
 P. C. 37. But there are cases where the arbitrator made his award after the time 
 bad elapsed, and the court notwithstanding enlarged the time : see note I to sec- 
 tion 172. It is not necessary that the rule be drawu up on reading the rule male- 
 ing the order of reference a rule 6f court : Browne v. Collyer, 20 L. J. Q. B, 4i6. 
 If issued on the third or fourth day of term, will relate back to the first day of 
 terra : Havjke v. Duggan, 6 U. C. Q. B. 638. A distinction between enlargements 
 by the arbitrator and enlargements by the court should be noted. Though the , 
 arbitrator must exercise his power of enlargement during the period limited for 
 making his award, the period within which the court will make an order for the j 
 purpose is only limited by its own discretion: Newman v. Parbury, 9 Dowl. P,C. 
 288; Leslie v. Richardson, 12 Jur. 730, s. c. 6 D. A L. 91 ; Bowen v. William, 
 6 D. A L. 235. But the court will seldom interfere except in cases where the I 
 arbitrator has by accident let slip the precise day: Andrews v. Eaton, 7 Ex. 223, | 
 per Parke, B. ; see also Edwards v. Davies, 1 8 Jur. 448 ; Leslie v. Richardson, 6 C, B. 
 378 ; h\ re Salkeld and Slater, 12 A. A E. 767. 
 
 (g) Taken from oar repealed Stat. 7 Wm. IV. cap, 3, s. 80, which wasatran 
 script of the Eng. Stat. 3 A 4 Wm. IV. cap. 42, s. 40. 
 
 
8. 181.] 
 
 WITNESSES IN AR1JITRATI0N8. 
 
 249 
 
 rulo or order for tbat purpose command the attendnnco and 
 examination of any wilncss (A) named in tucb rule or order, 
 and also the production of any documents mentioned there, 
 in. (0 7 Wm IV. c. 3, s. 30. 
 
 IHl. ( }) '> addition to the service of such rulo or NcKieptio 
 
 order an appointment of the time and place of attendance in ooui.iupt of 
 obedience thereto, signed by one at least of the arbitrators, or 
 by the umjire, bofoio whom the attendance is required, bo 
 served, cither together with or after the service of such rule 
 or order, the disobedience of any such rule or order shall bo 
 deemed a contempt of Court, but the person whose attend- 
 anco is required shall bo entitled to the like conduct money, 
 and payment of eiponses, and for loss of time, as for and 
 upon attendance of any trial ; (A:) and no person shall bo com- 
 pelled to produce, under any such rulo or order, any writing 
 or other document that he would not be compelled to produce 
 at a trial, or to ^t^tend for more than two consecutive days, to 
 be named in sr rder. (J) 7 Wm. IV. c. 3, s. 30. 
 
 (A) Before the English stutute, the court refused to compel the attendance of a 
 witness althougli the reference was by order of nisi prius : Wansell v. Southuood, 
 4 M. & R, 359. The court may now grant a habeas corpus for the attendance of 
 a prisoner in close custody : Graham et at v. Glover el al, 6 E. iSc B. 591 ; Manden 
 v. Overbury, 18 C. B. 34. 
 
 (i) The affidavit upon which application is made for an order for the attend- 
 ance of witnesses and production of documents before arbitrators must show that 
 tlie documents required are such as tlie witnesses would be compelled to produce 
 at B trial: Car rail et alv. Ball, Chambers, 3 U. C. L. J. 12. The applicatloa 
 ought in general to be made to a judge in chambers and not to the full court : 
 0'Co7)nor v. Balfe, 3 Ir. L. R. 66. Tho rule or order is generally absolute in the 
 first instance : in re Guarantee Society and Levy, 1 D, dc L. 907 ; Gallena v. Cotton, 
 3 U. G. L. J. 47 ; in re hickett«. 9 L. T. N.S. 405. 
 
 (;■) Taken from onr repealed Stat. 7 Wm. IV. cap. 3, s, 29, which was a tran- 
 script of the Eng. Stat. 3 A 4 Wm. IV, cap. 42, s. 40. 
 
 (k) The following things are made necessary before the party served can be 
 proceeded against for contempt : — 
 
 1. Service of tho rule, Ac, 2. Exhibition of the original. 3. Service of an 
 appointment of the time and place of attendance, signed by one at least of the 
 arbitrators or by the umpire. 4. Payment of conduct money, Ac. 
 
 {I) Witnesses under ordinary subpoenas are in general required to attend from 
 day to day till called upon, with the right of daily demanding fees ; but witnesses 
 subpcened before arbitrators are not bound to attend for more than two consecu- 
 tive days, and theu must be named in the order, Ac, directing tlictr b;tendance. 
 
 
m 
 
 250 
 
 TUE COMMON LAW PROCEDURE ACT. 
 
 [8. 182. 
 
 t 
 
 
 When wit- 18S8. (m) In case in any rule or order of reference, or in 
 lie swori^by any such submission to arbitration as aforesaid, it is ordered 
 or agreed that the witnesses upon such reference shall be sx- 
 amined upon oath, (n) the arbitrator or umpire, or any one 
 arbitrator, shall administer an oath to such witnesses, or take 
 their affirmations in cases where an affirmation is allowed by 
 law instead of an oath, (o) 7 Wm. IV. c. 3. s. 31. 
 
 SUMMARY APPLICATIONS AND PROCEEDINGS, (oo) 
 
 {in) Taken from our repealed statute, V Wm. IV. cap. 3, a. 31, which was a 
 transcript of Eng. Stat. 3 «fe 4 Wm. IV. cap. 42, 3. 41. 
 
 (n) A clause in an order of reference that the witnesses shall be sworn before 
 a judge, or assize, or commission, does not exclude the general power of the arbi- 
 trator to administer the oath under this section : IlodsoU v. Wise, 4 M. &, W. 
 536 ; and under it in this respect the court and judge have concurrent jurisdic- 
 tion: James v. Attwood, 5 Bing. N. C. 628. Where the order of reference pro- 
 vided merely that tlie arbitrator should bo at liberty, if he should thinlf it, to 
 examine the parties and their witnesses on oath, it was held he was not bound to 
 do so : Smith v. Goff, 14 M. & W. 264. Where witnesses on one side have been 
 examined by the arbitrator not on oath, the other party waives the objection, if 
 any, by calling witnesses and examining them also not on oath: Allen v. Francit, 
 4 D. «fe L. 607, iiote. 
 
 (o) If the submission provide that " the witnesses be examined on oath," tills 
 does not entitle the arbitrator to receive written affidavits: Banks v. Banks, 
 1 Gale, 46. It is different where there is a reference by rule of court to tlie mas- 
 ter : Noy V. Reynolds, 4 N. «fe M. 483. In the latter case the master is not enti- 
 tled to receive viva voce evidence unless specially empowered by the courl so to 
 do: lb. 
 
 (oo) The leading steps of an action from summons to verdict having been dia- 
 posed of, the act now proceeds to lay dowa rules for incidental proceedings. Of 
 these the most important because the most common are proceedings by affidavit. 
 In order to satisfy a legal tribunal of the truth or falsity of a fact in dispute, 
 there are two modes in ordinary use — first, affidavits ; second, oral testimony. 
 Hitherto the former was almost the only mode allowable in the discussion of 
 incidental proceedings. Whereas the latter was almost the only mode at tlie trial 
 of an action. To the former many causes of objection have been found to exi.st, 
 which cannot be urged against the latter. Tlie party who makes an affidavit is 
 not before the court, the grounds of his belief are not canvassed, his circum- 
 etancea and character usually unknown, and yet wanting these necessary aids to 
 the discovery of truth, affidavits have been received as absolute testimony. And 
 this was not all. Two other grave and striking objections forced tiienisdves 
 upon the attention of the commissioners. The courts not only refused to try dis- 
 puted questions of fact on affidavit, but actually restricted the party moving to 
 the particulars disclosed in the affidavits filed %vhen he made his motion. Tiiis 
 rule placed the party moving entirely at the mercy of an unscrupulous opponent. 
 While the former was tied up the latter had the advantage of swearing last, a 
 privilege that might be and often was abused. Whether from accident or design 
 the result was too often th" defeat of truth and the triumph of falsehood. Cases, 
 too, occurred in which the truth was kept back because no person other than an 
 officer of the court was compellable to give evidence by affidavit. In such cases 
 the effect of a bribe or a threat was strong enough to neutralize the most just 
 
 
s. 183] 
 
 AFFIDAVITS IN ANSWER TO AFFIDAVITS. 
 
 251 
 
 183. (p) Upon motions founded on affidavits, (q) either Affidavits on 
 
 ■ ow. Kfj r > Viy new matter 
 
 party with leave (r) of the Court or a Judge, (s) may make in answer 
 
 ".. ..i<vi-/>.i . -to allidavi 
 
 affidavits in answer to the affidavits of the opposite partj, (/) 
 
 its. 
 
 applications. To remedy these defects in our judicial system it is enacted ia 
 63. 183 to 195 following, amongst other things, that deponents and other wit- 
 nesses may be orally examined, that necessary documents may be produced, that 
 property may be inspected, that affidavits in answer to fresh matter may be 
 received, that unwilling witnesses may be compelled to testify, that interrogato- 
 ries may be administered to either party in the cause, and that discovery may 
 he made of documents in the possession of either when relating to the matter in 
 dispute. These changes have been effected in consequence of the suggestion of 
 the Common Law Commissioners, in their second report, ss. 28 to 42, inclusive. 
 
 (p) Taken from E'lg. Stat. 17 <fe 18 Vic. cap. 125, s. 4.5. Founded upon the 
 second report of the Common Law Commissioners, section 30. 
 
 {(]) Upon niotionn, <fec. the use of the words " court or a judge" in this section 
 sliows an intention that the word " motions" shall apply to applications before a 
 single judge as well as to the full court. 
 
 ()•) With leave, i. e. without leave the practice shall be as before the passing of 
 this act. 
 
 (s) Court or a judge, i. e. of the court when motions are made in court, and of 
 ftjiiclge when motions are made before a judge. Qu. Can there be an appeal from 
 the decision of a judge in chambers who declines to receive affidavits in answer 
 to what the party tendering them considers to be fresh evidence ? The next 
 I'lillowing section speaks of " their or his discretion," words which in general 
 exclude a direct appeal from a judge to full court, when the former has exercised 
 his discretion. There does not appear to be in this section anything that can be 
 held to prevent a party whose application to a judge in chambers has been dis- 
 missed from appealing to the full court in cases where before this act he might 
 have done so : see 7Vt v. Dickson, 4 C. B, 736 ; Peter-son et al v. Davis, 6 C. B. 235 ; 
 ll'Inion V. Biirf, lb. 433; Hawlim v. Akrill, 14 Jur. 1060; Dodgson v. Scott, 6 D. 
 k L. 27 ; see also note w to section 48. 
 
 (/) The practice in England under the section which corresponds with this is 
 in a most unsettled state. The three superior courts differ as to the time when 
 and the manner in which applications should be made. In the Queen's Bench it 
 appears to have been ruled that a party wishing to file affidavits in answer to 
 new matter must make a substantive motion: so assumed in Wood\, Cox, 16 C. 
 ]'. 404, In the Common Pleas there has been a distinct refusal to adopt this 
 construction of the act : Wood v. Vox, 16 C. B. i'J\ , and an opinion was by that 
 court intimated that the proper mode of carrying the act into effect must be by 
 an exercise of discretion upon n rule coming on for argument: Simpson v. Sadd, 
 15 C. B. 760, note 6 ; see also Hatine ct al v. Koherfsori , 1 6 C. B. 534 ; Harris v. The 
 Codrnnonth and Workington Railway Co., 6 W. R. 19 ; and Swivfen v. Sieinfen, 
 1 C. B. N.S. 364. The Queen's Bench and Com.i.on Pleas thus differing in opinion, 
 a hope was expressed that the Exchequer, if the question should arise before it, 
 would settle the practice. Afterwards the question did arise before the court of 
 Exchequer, and Martin, B., said, " we cannot lay down any rule on the subject ; 
 overj' case must depencl on its own circumstances ;" and Pollock, C. B. : " It may 
 turn out that a man who comes with materials sufficient for a rule in the first 
 instance, is met by an ambiguous answer, he may desire to answer that, and one 
 of the benefits of the enactment is that he may do so:" Pritchard v. Leech, 2 .lur. 
 •*.S. 475. Thus the matter stands. As a general rule in our courts the affidavits 
 ill answer should be shown to the party moving before argument. If thereupou 
 
 mi 
 
252 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 181 
 
 
 
 r 
 
 \ '\'r> 
 
 1 M 
 
 
 M 
 
 Cniirt or 
 Judge may, 
 ou liuuriiig 
 
 upon any new matter («) arising out of such afiBdavits, (i) 
 subject to all such rules as have been or way be made res- 
 pecting such affidavits, (w) 19 Vic. c. 43, b. 169. 
 
 184. {oc) Upon the hearing (y) of any motion or Sum- 
 mons, (2) before either of the Superior Courts or any Judge 
 
 the latter desire to filo afBdavits io reply he may upon a substantive application 
 obtain leave to do so, and in fact do so before the enso comes on to be lienrd, 
 It is, however, in the discretion of the court or judge to grant such leave at 
 the time of argument, and iu consequence defer further discussion until some 
 future day. 
 
 (n) To define by rule what shall be considered '• now matter" is quite inipos- 
 elble. Each application must stand or fall upon the circumstances of the case. 
 On a rule for a new trial on the ground of the improper reception of evideiue, 
 the affidavit in answer alleged tliat it was withdrawn and not refiled, and IM 
 that an affidavit in reply showing how it came to be withdrawn was not receiv- 
 able: Whitthoiise et al v. Jlemmant, 27 L. J. Ex. 205. 
 
 (t)) The effect of the section is only to permit affidavits to be filed in rephj 
 to afiidrtvits made in answer to affidavits first filed by the party seeking to rt'iily. 
 Wherever before this act a thing might be done as of course upon affidavit, for 
 instance, it is presumed that now no more than formerly will there be any right 
 to deny the material facts on affidavit: Copeland v. V/iild, 22 L. J. Q. 15. 27U; sec 
 further Bleicitt v. Gordon, 1 Dowl. N. S. 815. 
 
 (it') In consequence of the difference of opinion in England (see note t to this 
 section), some general rule is very much needed. Kone such has j'ct been made 
 either in England or here. 
 
 (x) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 46. The powers contninod 
 in this section are such as con only be exercised under it. They are not in any 
 manner exercisable as incident to the jurisdiction of the court at common law; 
 see The Queen v. The Inhabitants 0/ Upton S/. Leonard's, 10 Q. B. 837, per Luri 
 Denman, C. J. 
 
 (y) Upon the hearing, ifc. The court will not make the rule absolute for the 
 first instance, though the witness be at the ))oint of death : Thomas v. Baron Von 
 Stulterhcim, 5 W. 11. 6. Notice at least must be given • Bennett v. Bai/es el al 1 L. T. 
 N.S. C9. The court or judge may require either exjilanation of affidavits tiled or 
 proof additional thereto. This may consist either of the production of ''ocuoieiits 
 or of witnesses, with reference to a subject matter under hearing: Cockcrell \. 
 The Van Diemen's Land Co., Ift C. B. 255. The section points out modes of 
 aecuring evidence for the information of the court or a judge, and not of the par- 
 ties: see AshcToft v. Foulkes, 18 C. B. 261. 
 
 («) " Motion or Summons." The word motion is here used to embrace aiiidica 
 tions to the court, which may not be, strictly speaking, for rules. In other sec- 
 tions "motion" seems to express either a proceeding in banc, or before a judge: 
 section 183. The powers of the court and a judge in chambers appear to be con- 
 current. Where an application of a pressing nature for the examination of a wit- 
 ness in extremis was not made to a judge in chambers, because as alleged no order 
 could be there obtained in the first instance, but was made directly to the court 
 for a rule absolute in the first instance, the court said wiiatever power they luni 
 was also vested in the judge at chambers, and recommended the appliv'ation to lis 
 made there : Thomas v. Baron Von Stutlerheim, 28 L. T. Rep. 64, The section 
 appears to apply only to interlocutory applications, and the court refiised to ex- 
 
 iv '■: .. 
 
i.l84.] 
 
 PRODUCTION OF DOCUMENTS, ETC. 
 
 253 
 
 thereof, having jurisdictioa in the case, (a) such Court or any motirm 
 Jud^e, at discretion, (o) and upon such terms as they or he order tho 
 thinks reasonable, may from time to time, (c) order to be !,'f'ai"u-" 
 produced, such documents (ti) as they or he thinks fit, and "Jl'Jl i^e ex- 
 may order such witne3ses, as they or he thinks necessary, to '""""*'^'""*- 
 appear and be examined vivd voce (e) before such Court or 
 Juds^e, or before a Judge of any County Court, or before any 
 Clerk or Deputy Clerk of the Crown, (/) and upon reading 
 the report of the Judge of the County Court, or Clerk or 
 Deputy Clerk of the Crown (^as the case may he), or if no 
 such reference be made, then upon examining such docu- 
 ments or henring such witnesses by the Court or Judge in 
 which, or before whom such motion or Summons may be 
 pending, such Court or Judge may make such rule or order 
 
 amine ft witness on tho argumont of a riilo for a now trial : Chapman v. Mon- 
 moHlhshire Railway tj- CanaL Co. 30 L. T. Rep. 308 ; Bennett v. Bayea et al, 1 L. T. 
 IvS. 69. • 
 ((i) Court or Judge. Relative powers: sec note w to section 48, 
 
 (6) A judge's discretion exerci.scd in cases within his jurisdiction cannot geno- 
 rnlly be appealed from: sec Woohaer et alv. Dcvcreux, 2 M. &, G. 768; Shaw v. 
 Holmes, 3 (J. B. 952 ; see further note w to section 48. 
 
 ((?) From time to time. These words taken in connection with "by such rule 
 or order, or any subsequent rule or order, command, <tc.," in tho next succeeding 
 section, indicate an intention to allow documents or witnesses to be called for as 
 often as thought necessary during a hearing. 
 
 [<!) Where on showing cause against a rule obtained by a plaintiff to rescind 
 a jud^je's order, which directed the master to review his taxation, it was objected 
 on the part of tho defendant that there were no materials before the court to 
 b!iow what tho taxation had been, the defendant's counsel saying ho had an 
 answer on the merits, the court allowed the master's allocatur to be produced at 
 once without imposing any terms : Ashcroft v. Foulkes, 18 C. B. 261. Consider- 
 ing tiie i)ractice authorized by this section as being more for the information of 
 liie court than of the parties, it may be that documents in the pobsession of either 
 }i:irty, though privileged as against his opponent, might be ordered for tiie pur- 
 jio.-es of this section to be produced : see Wood v. Morcwood, 9 Dowl. P. C. 44 ; 
 Coales et at v. Birch, 2 Q. B. 252. 
 
 («) The examination of witnesses is to bo viva voce ; but beyond this as to tho 
 proceedings upon an examination no information is given : see Cockcrell v. Van 
 Liemen'i Land Co 16 C. B. 236. Whether there will be the right to cross-examine 
 nad re-examine is not decided. It is presumed that the right exists. " Exam- 
 ined" must mean more than "questioned by one side: " but see note j to section 
 185. It is not clear whether the strict rules of evidence as to leading questions, 
 (tc, are applicable. The process for wilful disobedience is attachment : see 
 section 186. 
 
 (/) The application should bo made on the affidavit of the party applying : 
 Fitcher V. Hahn, 13 C. B. N.S. 659. 
 
 J. 
 
 ' ,j 
 
 ( 7' 
 
I'h 
 
 k 
 
 51 '', 
 
 i*r 
 
 m 
 
 a 
 
 
 if\i _ =;:^ 
 
 254 
 
 And may 
 make riilo 
 or order 
 thereon. 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. l8o, 
 
 Power by 
 rule or onler 
 to compel 
 attondiiiico 
 «)f witnesses 
 or prodiie- 
 tion of docu- 
 ments in 
 such cuses. 
 
 as may be just, (g") and iu cases within the jurisdiction of a 
 County Court, the Court or a Judge therein having jurisdic- 
 tion in the case, may order the production of documents ot 
 the attendance of witnesses before such Court or Judge, or 
 before the Clerk of such County Court, and upon hearing 
 such evidence or reading the report of the Clerk, may male 
 such order as may be just in like manner as if such proceed- 
 ings were had in one of the Superior Courts. (Ji) 19 Vic, 
 c. 90, s. 16; 19 Vic. c. 43, s. 170. 
 
 185. (t) Any such Court or Judge may, by such rale 
 or order, or by any subsequent rule or order, command the 
 attendance of the witnesses named therein, for 1' «^ purpose of 
 being examined, (j) or may command the production of any 
 writings or other documents to be mentioned in such rule or 
 order, (k) and in-the case of a Judge, he may, if necessary or 
 convenient to do so, direct the attendance of any such witnesj 
 to be at his own place of abpde (I) or elsewhere, (rn) 
 
 (g) i. e. Upon hearing the evidence when the witnesses have been examined io 
 the presence of the court or judge, or upon reading the report when the examina- 
 tion has taken place before one of the officers named. The rule or order to be 
 made in the manner directed by section 186, and to have the effect therein 
 enacted 
 
 (/<) Tliis is simply an extension to county courts of the practice declared in the 
 previous part of the section in regard to the superior courts. 
 
 (j) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 47. 
 
 {j) i e. Either before the court or a judge or before any one of the officers 
 mentioned in the preceding section. This section is, if possible, less explicit as to 
 the mode of examination than the preceding. There it is directed that the ex- 
 amination may be vivd voce. But neither there nor here is it declared whether in 
 other respects, as to cross-examination of witnesses, Ac, the practice shall belii;e 
 that of proceedings at nisi prius. It may bo a question wliether the rlglit to 
 cross-examine can exist in cases within these sections in the absence of express 
 provision in the rule or order authorizing the examination : see Uargrave v. Unt- 
 grave et al, 5 D. <fe L. 151 ; Nicol v. Alison, 11 Q. B. 1006; Simma v. Eenderm, 
 lb. 1015. 
 
 (k) It is enacted in the Eng. C. L. P. Act that the rule or order when obtained 
 shall be proceeded upon in the same manner as a rule of court granted under Eng. 
 Stat. 1 Wm. IV. cap. 22, a statute not in force in this Province. 
 
 {I) At his own place of abode, ^c. Qu, Do the words " his own " relate to the 
 abode of the witness or of the judge? The more immediate antecedent of "his' 
 is " such witness." This part of the section is copied from Eng. Stat. 1 Wm iV, 
 cap. 22. 
 
 (m) The examination may bo either before the court or judge, or the judge of 
 a County Court, or any clerk or deputy clerk of the crown, Ac. : sectioa 184. 
 The word " elsewhere " may mean the office of one or other of the above-named 
 functionaries, who alone are empowered to examine. But the words " if necessary 
 
 ? u 
 
S. 186, 187.] ATTENDANCE OP PRISONERS AS WITNESSES. 
 
 265 
 
 DisobccU- 
 eiice to 1)0 
 n I'oiiteiupt 
 of Court. 
 
 Witnesses 
 to lio ]iiii(l 
 exi>ou8es. 
 
 What (loeu- 
 inents need 
 not 1)6 
 produced. 
 
 E.\ainina- 
 tions niiiy be 
 adjourned. 
 
 186. (n) If iQ addition to the service of the rule or 
 order, an appointment of the time and place of attendance in 
 obedience thereto, signed by the person or persons appointed 
 to take the examination, or by one or more of such persons, 
 be also served together with or after the service of such rule 
 or order, the wilful disobedience of any such rule or order 
 sball be a contempt of Court, and the order in the case of 
 a Judge's order having been made a rule of Court, proceed- 
 ings may be forthwith had by attachment, yo) But — 1, Every 
 person whose attendance is so required, shall be entitled to 
 the like payment for attendance and expenses as if he had 
 been subpoened to attend upon a trial j (^) 2. And no person 
 sball be compelled to produce under any such rule or order, 
 any writing or other document that he would not be compel- 
 lable to produce at a trial of the cause; (q) 3. And the 
 Court or Judge, or person appointed to take the examination, 
 may adjourn the same from time to time as occasion may 
 require, (r) 19 Vic. c. 43, s. 171. 
 
 187. (s) The SheriflF, Gaoler, or other Officer (t) having 
 
 or convenient " give to the word " clgewhero " a more extensive signification. In 
 the ease of a sick witness an examination at his^house might certainly be both 
 necessary and convenient. 
 
 (n) Talicn from Eng. Stat. 17 «fe 18 "Vic. cap. 12.5, s. 47. 
 
 (o) Tills part of the section declaring in what manner witnesses shall be pun- 
 isbed for disobedience is substantially the same as 1 Wm. IV. cap. 22, s. 5. 
 
 (/)) If conduct money be given to the witness with the appointment, and he 
 afterwards and before he has done anything in relation to his attendance at the 
 place appointed, receive notice not to attend, the conduct money may, it seems, 
 be recovered back from him : Martin v. Andrews, 28 L. T. Rep. 1 22, 
 
 (7) As to which see Chit. Arch. 12 ed. 354. 
 
 ()•) Tliis is from Eng. C. L. P. Act 1854, s. 47. As nothing specific is enacted 
 nsto the mode of procedure upon examinations to be had under this section, in 
 cases of doubt the rule or order to be made should prescribe the mode : see 
 McComh'ie v. Anion, 6 M. ife G. 27; Scott v. Van Sandau, 8 Jur. 1114 ; \VilUa>nson 
 V. Paffe, 3 D. «fe L. 14. 
 
 \/i) Apparently an original but very necessary provision. Without it there 
 migiit be no means of securing the attendance of a prisoner whose testimony 
 sliould be required at examinations authorized by this act. Though if the inten- 
 tiim of the legislature to be gathered from any particular section bo otherwise 
 clear tliat prisoners should be examined as witnesses, the courts no doubt would 
 grant the habeas in order that that intention might be carried into effect : see 
 Graham et al v. Olover et at, 6 El. & B. 691 ; see also Marsden v. Overbury, 18 C. 
 B.34. 
 
 (0 Or other officer. Qu. Will this embrace the superintendent of a lunatic 
 asylum, or any other than officers in the service of the courts ? 
 
 ,' 4 
 
 # il 
 
 X 
 
256 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 187. 
 
 How prison- the custody of any prisoner, (u) may take such prisoner for 
 brought up examination under the authority of this Act, (y) by virtue of 
 donco." *^^'' a Writ of Habeas Corpus to be issued for that purpose, (ic) 
 which Writ may be issued by the Court or Judge, (x) un- 
 der such circumstances and in such manner as such Court or 
 
 (u) Qu. In execution on final as well as on mesne process— in civil as well as 
 in criminal cases ? 
 
 (v) t. e. To any examination authorized by this act ? 
 
 (to) Before this act upon the subject matter of the section under cousidei-ation, 
 there were in Canada two statutes, 3 Wm. IV. cap. 2, s. 8, and 4 <fe 5 Vic. cap. 
 24, s. 11, both of which are consolidated in section 76 of Con. Stat. Can, cap, 
 and 99, as consolidated read as follows : " When the attendance of anj' person 
 confined in the penctentiary or in any other prison or gaol in this Province 
 or upon the limits of any gaol is required in any court of assize and nisi prim, 
 or of 01/er and terminer, or general gaol delivery, or other court, the court before 
 whom such prisoner is required to attend may make order upon the wa.-dcn 
 of the penctentiary or upon the sheriff, gaoler, or oihcr person having the custody 
 of sucli prisoner, to deliver such prisoner to the person named in sucli order to 
 receive him, and such person shall thereupon instantly convey such prisoner to 
 the place where the court issuing such order is sitting, there to receive and 
 obey such further order os to the said court may seem meet; but no prisoner 
 confined for any debt or damages in a civil suit shall be thereby removed out 
 of the district (or county) where he is so confined." A comparison of this sec- 
 tion with the one liere annotated will show the following distinctions: Under tlie 
 former — 1, An order is sufficient for the removal without a habeas; 2. The re- 
 moval can only be to one or other of the courts named ; 3. That court only has 
 the power to make the order; 4, The order may be delivered to any "person" 
 having the custody of the prisoner ; 5. No prisoner for debt in a civil snit shall 
 be removed by such order without the limits of the county or union of counties in 
 whicli he is confined. But previous to these statutes, and independently of any 
 statute now extant, the courts granted writs of habeas corpus ad teaUiicandm : 
 Foster, 396 ; Standard v. Baker, M. T. 26 Geo. III. K. B. Tidd's Pr. 9 Edn. 809; 
 Gerry v. Hopkins, 2 Ld. Rayd. 851 ; Leigh v. Sherry, 2 Moore, 33. On an affidavit 
 that the prisoner was a material witness and willing to attend : Rex v. Roddnn, 
 2 Cowp. 672, and the writ has been issued to bring up a prisoner before an election 
 committee of the House of Commons : In re Price, 4 East. 587 ; Rex v. Pilgrim, i 
 Dowl. P. C. 89; but refused as to a prisoner of war : Furlyy. Newnham, Doug, 419; 
 and as to a prisoner confined for high treason : Langston et al v. Cotton, 2 Pea. Ad. 
 Ca. 21. The proper course in such cases being an application to the secretary of 
 Btate: lb. Though as to sailors on board a man-of-war, if willing to attend, the 
 writ might be granted: Rex v. Roddam, 2 Cowp. 672. So as to a lunatic in an 
 asylum, upon an affidavit that he is not a dangerous lunatic, and that he is in a 
 fit state to be brought up: Com. Dig. "Testmoigne, Witness," A. 1. So as to 
 prisoners in execution: Rex. v. Burbage, 3 Burr. 1440; but not where the appli- 
 cation is a mere contrivance to remove the prisoner: lb. The writ may be to 
 produce the prisoner before a coroner if there bo a strong case of necessity : ^' 
 parte Wakley, 14 L. J. M. C. 188. 
 
 (x) Court or Judge. — According as it is intended that the examination shi 
 take place before the one or other. The court should not be troubled with such 
 applications so long as they can be disposed of by a judge in chambers : see note j 
 v> to section 48, 
 
s. 188.] 
 
 REFUSAL TO MAKE AFFIDAVITS. 
 
 257 
 
 Jucl(»e may by law issue a Writ of Habeas Corpus ad Testifi- 
 candum. (i/) 19 Vic. c. 43, s. 173. 
 
 188. (2) Any party to a civil action or other civil pro- Porsmis 
 ceeding (a) requiring the affidavit of a person who refuses to I,mk« nmda- 
 inake it, (i) may apply by Summons for an order upon such roni'i'icUe'd 
 person to appear and be examined (f) upon oath before a mia'Kx- 
 Judgc, or any other person to be named in the order to whom ^"'i.mau'e 
 it may be most convenient to refer the examination, as to i'*!"''"- 
 the matters concerning which he has fefused to make an 
 affidavit, (d) and a Judge may, if he thinks fit, make such 
 order for the attendance of such person for the purpose of 
 
 ()/) The application oucjhfc ffcnernlly to be made to n jiuliro in chambers ; Fenncll 
 V. T'lit, 1 C. .<[. &. R. 584; Gordon's Case, 2 M. <fe S. 582; Browne v. Gishorne, 
 2 Dowl. X. S. 963 ; upon an affidavit intitled in tlie court and cause, Rex v. Layer, 
 Fort, SOfi, slating the witness to be in custody and willing to attend : Regina v, Mur- 
 rai/, i Tidd's Pr. 9 Edn. 908, The writ must bo signed by the judge when granted 
 by ft jiid'go: Rex M.Roddam, 2 Cowp. 672 ; Gibb v. King, 1 C. li. 1 ; 1 «fe 2 Ph. <fe M. 
 cap 1-3, s. 7, and be left with the officer in whose custody prisoner is detained: 
 2TiJd'sPr. 9Edn. 810. , 
 
 (,:) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, a. 45. Founded upon the 
 second report of the Common Law Commissioners, section 30. 
 
 (rt) This section is restricted to proceedings in civil cases: see Attorney- General 
 T, Riiilkff, 23 L. J. Ex. 240. 
 
 (h) The giat of the application is the refusal to make an affidavit when required 
 of him by any party to an action. 
 
 [c] Sninmons. The use of this word denotes the tribunal to which application 
 should be made, viz., to a judge in chambers. The subject matter of the section 
 is new. There is no inherent jurisdiction in the courts to entertain the applica- 
 tion, else the section would not have been required: see remarks of Coleridge, J., 
 in Harvdj v. 0' Meara, 7 Dowl. P. C. 735. It is from this inferred that the court 
 if disposed to entertain applications at all under this section will not do so in the 
 lirst instance. The right to entertain an application by way of appeal is yet a 
 question to be decided : see Stokes v. Grhxell, 2 C. L. Hop. 730 ; and note n< to 
 section 48. The use of the word " summons" also denotes a clear intention that 
 Eonie party should be called upon to show cause. Whether the opponent or appli- 
 cant, wlio may be either plaintiff or defendant in an action, or the witness who 
 refuses to make affidavit is not stated. Reason indicates the latter. 
 
 ((') The object of the section seems to be to compel a person refusing to make 
 an uflidavit to be examined viva voce: Cockerell v. Van BienmCs Land Co., 
 I'j C. B. 261, 2^er Crcsswell, J. It is somewhat analagous to a subpoena to compel 
 evidence: lb. per Jervis, C J. An arbitrator having refused to make an affidavit 
 '^as ordered to attend before the master, to be examined as to whether he had 
 enlarged the time for making the award within the prescribed time : Jiobei-ts v. 
 Emns, 6 B. <fe S. 1. So where in a garnishee proceeding an arbitrator refused to 
 I make an affidavit as to the mode by which his award was arrived at : In re Tate 
 tiidthe Corporation 0/ the City of Toronto, 3 Prac, R. 181, 
 
 17 
 
 
 tt'< 
 
 
 
 m 
 
 
'} 
 
 ii 
 
 ,j A ti 
 
 I * 
 
 'fell I 
 
 K -I 
 
 IH ( '''ft- 
 
 1 4 
 
 
 m 
 
 258 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 189. 
 
 Pi'dvisi 
 lui-tlii' 
 covtii'V 
 
 on 
 
 ilis- 
 
 ol' 
 
 being examined as aforesaid, (e) and for the production of 
 any writings or documents to be mentioned in such order. (/) 
 jjotbre the person therein appointed to take the examination 
 and may therein impose such terms as to such examination 
 and the costs of the application and proceedings thereon as 
 he thinks just, (j/) and sueh order shall bo proceeded upon 
 in like manner as the order mentioned in the one hundred 
 and eighty-fourth and one hundred and eighty-fifth sections 
 of this act. (/*) 19 Vic. c. 43, s. 174. 
 
 180. (0 Upon the application of any party (_/) toacausu 
 
 (c) As aforcmid, i. e. upon oath. Qn. Is there power to order the examination 
 of a witness v. ithout the jurisdiction of the courts under this section ? As in siicli 
 ns cnse there woukl be no power to punish for disobedience, it is iipprelicndftl 
 no order would be made. 
 
 (/) Before documents can be ordered to be produced the judije must be Ralls- 
 tied that tliere are documents in the possession of n party, and alcio probably that 
 the documents are such as tlie party niijjlit bo com2)elled to produce at a trial. 
 
 {(j) The projiriety or impropriety of imposinjT terms is a matter for (lie con- 
 sideration of the judge upon tlie whole circumstances of the case before liini. If 
 tRc witness p:roundles.sly and pertinaciously have refused to make the alHdavit 
 required of him, he may be denied conduct money. 
 
 (A) Disobedience under this section will, it is presumed, subject the iiarty to 
 attachment. 
 
 (?) Taken from Ene;. Stat. 17 tfe 18 Vic. cap. 12.5, s. 50, Founded upon tlie secoml 
 report of the Common Law Commissioners, sections 5, So-SO inclusive. The ob- 
 ject of this section is to enable either party to a suit nt law to obtain inspection 
 and discovery of documents in the possession of hi.s adversary witiiont Iiavini; 
 recourse to a court of equity for that purpose. T)ie prin(!ip!e involved is that 
 which the commissioners asserted as an indisputable proposition, viz., that cvory 
 court ought to possess within itself the means of administering complete justice 
 within the scope of its jurisdiction. Powers are conferred upon courts of common 
 law which before thoj' did not possess. Tlie practice of these courts as to inspec- 
 tion and discovery of documents is a most important one, and one wliich in its 
 present efficiency is almost wholly the creature of statute law. Inspection ami 
 discovery are not by any means synonymous terms, though sometimes so u.icd. 
 An application for inspection of a document pre-supposcs a knowledge that such 
 docimient exists ; but an application for discovery presupposes ignorance of the 
 document, a knowledge of which it is sought to obtain. Now, although inspection 
 might in some cases be had upon application to courts of common law under their 
 common law jurisdiction, and in some cases by statute, (see section 197 aud notes 
 thereto,) discovery as such could not be obtained. 
 
 (j ) It is apprehended that upon suggestion of the death of the original party 
 his representative may make the application : sections 131,134-138. The appli- 
 cation may be that of "either" plaintiff or defendant, which may be taken toes- 
 tend to one of several plaintiffs or defendants. The time within which application j 
 should be made either for inspection or discoverj^ is not limited. The applicatioD. 
 if by plointiff, must be after comraonceraent of aciion, and may be before issue j 
 joined : Rogen v. Turner, 21 L.J. Ex. 8 ; and if by defendant, before plea pleaded: 
 Forshaw et al v. Lewis et al, 10 Ex. 712; Jo?ies v. llargreaves, 29 L. J. E.\. 3(iS. 
 
l^n.] 
 
 DISCOVERY OF DOCUMENTS. 
 
 259 
 
 or civil procooding {k) stating his belief upon affidavit (/) (idcmmnts 
 
 1 y -s A 1 1 • *■ 1 • 1 1 • i- '" I'"' 1""*" 
 
 that utiy document (rit) to the production or which he is enti- ws^ic.n of 
 tlcJ fur the purpose of discovery or otherwise, (?i) is in the ],'i\i"V^"" 
 
 (/■) "Ciiiis« or other cioil proceeding" dcscribod in section l'.)7 ns "an action or 
 lftj<t I'rocc'-'ling." The wortlri "or oilier c'lvW proce'!iIiii:^'," siiporialilfd to "cjiune," 
 riu'-t iiii'tiii some procecdina; other tluin a cause. Probably i)roce''(liri;;H by nian- 
 daiiHi-i to eiitbrce civil riglitH are oinbraced : /ier/iiia v. Awberyate, .j-c. Jlailwnij Co. 
 17 Q. 1). '.t.">7; l{<'gina v. The York and North Midland Ruilwayj Co. 1!) L. T. Rep. 
 ItiS; SCO further Attorney- G cneral \. Radloff, i^ L. J. Ex. 24(t. Interpleader 
 i-^tis ;uo within the principle of the statute : White v. Watts, 31 L. J. C. I'. G81. 
 Tlu' (Idcrnientis iini^t be relevant to the cause or other court procecdiii;^: Jlauscll 
 V. Feenei/, 2 Johns. &, II. '520. 
 
 (/) The aliidavit must be made by a party to the cause or other proceeding : 
 U-m'hjlM V. (Jlarlc, 25 L. J. Ex. 113 , Chrhtophersen et al v. Lothiifu, ;i:i L. J. C V. 
 121. but where by the net of God an adidavit by the party hiuiKclf is ii.ipo.ssible. 
 it is ainirehended that a cy pren compliance with the statute may be allowed, for 
 iii-,tiin('? nn aflidavit b}- the attorney : Scott et itx. v. Macawlcy, 4 Ir. L. 11. 40. 
 Tims, it has been held thatwiiere a corporation ajj^gregnte is a party to the caui^e, 
 till' al'iihn it may be made by th.o attorney to the corporation : JCinr/s/ord v. The 
 Unat \\':>ti'rn Jiitilway Vo. 10 C. B. N. S. V^l. As to where upon party applyinj;' 
 ?uos or defends in person : see, Oxlade v. The North Eastern Jiaihcay Co. 1 2 U. 15. 
 N.S. li'iii. And though made by the party himself, if defective, it may be that the 
 court nould receive a snpi)lementary nflidavit by another person : lUwctt v. Webb, 
 '28 L. T. Ucp. 121. The afiidavit may be one of belief. If the application be for 
 a discovery, no more can be in reason expected. But nn afiidavit by deponent 
 Ihiit )ij was "'/(.'yisf(?, " uot expressing belief, has been he^d insuiiicicut : I'lppcr 
 V, Chaiiim, 1 Ex. 226. 
 
 (w) An aiTidavit that the opposite party has in his possession, &c., "certain 
 dixiihicnt.-," is insufficient. Some particular document must bo si^-idfied. "Any 
 doiiiiicMt" in tlu' act means " .lomc document" to be .'spficiHed. Tiie court before 
 jjruiitinu; tli(; application must be informed not only of the question in the cause, 
 but of tlic nature of the documents in respect of which the application is made : 
 Utir^ll V. dt/j/., 28 L. T. Hop. 121 ; £ray v. Finch, 1 H. .fe K. 408 ; Thompson ct nl 
 V. A'o/;.s(,u t/ ai, 2 II. «$!; X. 412 ; llonghton v. London & County Axsur. Co. 17 C. B 
 X.S, 80 ; Evans v. Low's, L. Tl. 1 C. 1'. (i.5G. If in answer to rnterrogatcries under 
 section r.)0, a party admit certain documents to bo in his possession, the court 
 will not grunt a rule npoti lilta to give copies tliereof, except upon application 
 under tliid .section : Scott v. Zygomala, 4 E. «& B. 48!5. 
 
 (") It must appear that ho "is entitled" to the production of the documents 
 "for tiie purpose of discovery or otherwise," wbicli Inst words may at least include 
 "inspection." Qn. Hav(! these words the efTi'ct of allowing applications under 
 this section in cases in wliich discovery could not be liad in ecjuity : see Osborn. 
 V. The London Dock Co. 10 Ex. 698 ; Whateley v. Cravfyrd, 25 L. j'. (i.B. 1 QZ. It 
 sc'jnis that if the application for inspection be one in which, if a bill were iiled be- 
 fore the C. L. P. Act, no discovery could be had, inspection will be refused. Thus 
 it lias been held tliat the demandant in an action of dower against a bona Jlde pur- 
 cliuf-er for value is not entitled to inspect the deed of conveyance to her husband, 
 tlii'ii being in tho hands of the purchaser: Oomni v. Parrot, ;^() L. T. Ucp. 65. 
 Discovery can only be had of documents relating to the matter in dispute and 
 which support tho case of the party applying: Ncott v. Waller, 22 L. J. Q. B. 404. 
 But inspection or discovery of documents may be had, which bona Jide make out 
 applicant's case, although that may merely be the negative of his opponent's : 
 SmiV/iv. The Duke of Beaufort, 1 Hare, 507. Where the opposite party lias in 
 
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200 
 
 THE COMMON LAW PBOOEDURS ACT. 
 
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 Ilia possession a docuincnt wliich docs not constltuto his own cnse nnd will sii|iport 
 timl of tiio jmrty npplyiii!?, tlio latter is entitled to an inspection of it : Smhlet v, 
 MaiKjhto, 7 Kx.''^21». Documents equally support the case of iipplicnnt, wiiether 
 tlicy sustain it /vvma /arvV or contradict tlio case sot up by liis opijoiiont; ft, 
 Tiic rij^lit to inspect is not limited to documents necessary to make out a /in'mi 
 facir case, but extends to any documents which tend to strengthen or sii|)|),irt 
 it: Vonlcr v. Baring, 2 C. L. llep. 811. The documents must relate to a (|iiusliua 
 in the cause: SncUcr v. Mungino, 7 Ex. 220. Applications to procure cvidcme 
 ogainat n person not a party to the causo will bo refused : lb. The applicntidn 
 must be bona fide nnd for the purpose of the suit. And the suit must be bionijht 
 bona fi'le, nnd for the purposes other than the discovery of documents to foiinj'nn 
 action ajjcainst a third party: Temperley v. Willett, 27 L. T. Rep. W,]; nnd nut 
 against the defendants ostensibly to try a question in dispute, but in reality to 
 procure evidence from one against the other; lb. The general rule undoubtcdl" 
 is, that a ]iarty has a right to the production of documents sustaining his cnse 
 affirmatively, but not to those which form part of his adversary's case: JIdl v. 
 Philp. 7 Ex. 232 ; Iticcard et al v. Blanuri et al, 4 El. A B. 32!> ; Wriffht v. .l/ow/, 
 11 Ex. 21)0. Sue further Galsworthy v. Norman, 21 L. J. Q. B. 70; Campion y, 
 Karl Grfif. 1 Y. tt J. 154; Bolton v. Corporation of Liverpool, 1 M. tt K, 8S, 
 But it is no objection to the inspection of the document in the possession of a 
 party that it relates to his own case if it also sustaitis the case of the party apply- 
 ihg : Thr London Gan Co. v. The Vcxtry of Chelsea, 6 Jur. N.S. 400 ; Bayle;i y, 6Vi/- 
 fiihn, o 1 L. J. Ex. 477 ; Coster v. Bariny, 2 C. L. Rep. 81 1. Correspondence betwuin 
 the parties nnd thinr agents have been allowed to be produced : Colciinin d al v. 
 Trumnn et al, 28 L. J. Ex, 457, per Pollock, C. B. But letters written by a party 
 to an action, to his agent abroad, after the commencement of the action, for the 
 purpose of the suit, are protected: Bank of India, Australia and China, v. Hick, 
 2 N. R. 31(5; see also Hooper v. Gumm, 2 .Johns. & II. 602. So the opinions of 
 counsel : Jcnln/ns v. liushby. L. R. 2 Eq. 547 ; Underwood v. Secretary of Stole for 
 India, 35 L. J, Ch. 5)5; Walsham v. Stainton, 2 II. A M. 1 ; NichoU v. Joms, 
 lb. 588. One object in refusing applications under this section will be to dispuu- 
 rage a party who, without a case of his own, hopes by an adventure to discover a 
 Haw in that of his adversary : sec Pepper v. Chambers, 7 Ex. 226 ; Scolt v. Walker, 
 2 El. & B. 555; Wright y. Morrey, II Ex. 209. If the intention of the party 
 applying be phiinly to fish something favorable to his case, the application will 
 be refused: Kiyner et al v. Alnusen, 15 Jur. 1000; Jones v, Piatt, W. 11, (>%; 
 Bird et al v. Malzy, 1 C. B. N. S. 308 ; Adams v. Lloyd et al 27 L. J. Kx. 49'.i; 
 WolUy v. Pole, 32 L. J. C. V. 263. Thus a party is not entitled to saj', " If I saw 
 my opponent's books I could find some evidence:" Scott v. }Valker, 2 El, k B, 
 503, per Crompton, J. It would be exceedingly vexatious, whenever a tradesniaa 
 brings an action for his bill, if he wci'e compelled to disclose to his customer li'u 
 manntir of carrj-ing on business: British Empire Shipping Co. v. Soames, 29 L, T, 
 Rep. 75, per Lord Campbell, C. J, A party is not entitled to search tliu otlior 
 party's papers with a view of finding out some invalidity in the case put forward 
 by him: Shadwell v. Shadwell et at, 6 C. B. N.S. 679, nor for the purpose of re- 
 butting the anticipated case of his opponent: aco Iticcard v. The Inclosurc Com- 
 missioners, 4 El. & B. 329 ; London Gas Light Co. v. The Vestry of Chchra, 
 6 C. B. N. S. 411 ; Jones v. Ilargreaves, 29 L. J. Ex. 368 ; Temperley v. WiUetl, 
 6 El. &. B. 380; Metropolitan Saloon Omnibus Co. v. Hawkins, 4 11. & N. 146. Butsee 
 Lauior v. Murchison, 3 Grant, 553. His right is as to a discovery of those papers 
 that may directly or indirectly support his own case : Rayner et al v. AWiuscn, 
 2 L. M. & r. 605 ; Galsworthy v. Norman, lb. 608, note ; Scott v. Walker, 2 El. i' 
 B. 555 ; Collins v. Yates ct al, 27 L. J. Ex. 150 ; Reynoldson v. Morton, 2 L. T. N.S. 
 462 ; Coleman et al v. Truman et al, 28 L. J. Ex. 5 ; Daniel v. Bond et al, 9 C. B. 
 N. S. 716. Of necessity the applications must often be merely speculative, but 
 should be strictly watched and great care taken that injustice is not done by grant- 
 , ing them: Bray v. Finch, 28 L. T. Rep. 126. For instance, great injury by the 
 
g IhO.] DISCOVEIIY OP DOCUMENTS. 261 
 
 possession or power of tho opposite party, (o) the Court or 
 
 (li«d)Vi'n of Irnde Focrets niii;lit rcpult if tlio court wore to snnction (lit- in-iiiiiiile 
 tliiil (111 tlif niiTO ] oimbilitt/ of discovering innttor ndvuiitngi'Oiis to one jmrty, nn 
 insiK'ctinn iiy 1-ini of tlie otlior pnrty's boolis, rnngiiig over a loiigtlii-ncd iioriod of 
 tiiiio, sliduld be allowed : Smith v. The Great Western liailKiiy Co. .'] AV. 1!. (>i). 
 The c(Jint or judge to whom niiplicntion is made cnn onlv deride ns to tlie pro- 
 iiiicty 01" iiniiropriety of neccding to tlie n])j)lication upon llie idlidiivits tiiiil. The 
 cDiiteiitsof nii|ilieiuit'fl nftidavits must be such ns to establish upon his part n prima 
 fii-ie r'\'j:ht to the inspection or discovery in nccordnnco with the jirineipies estab- 
 |i^!l(■(l in tho foregoing cases. The aflidavit, therefore, ought not only to show 
 tliat a cause or other civil proceeding is pending, but also to state, nd a mere 
 fiU'Scstidii, but circumstances sufficient to satisfy tho court or judge (hat there 
 ftiT ill the possession or ])ower of the ojiposite party certain documents, and that 
 Fucli (iDi.iiiiients relate to such cause or other civil proceeding. A prima facie 
 rail', calling for an answer, must at least be stated in this resi)ect, as it must be 
 in the old proceeding to obtain insjiection of doeument.s held by a trustee. Tho 
 ]\\A\iv9, with a view to settling the practice under the Eng. Stat! of 14 & 15 Vic. 
 I'iip! !'!•, to which our section 107 corresponds, laid down ver^- full rules upon this 
 .Buiijoct. They declared tluit applicant, in addition to tlie foregoing, " must show 
 thiii he would, by a bill for a discovery or other proceeding, be able to obtain a 
 (lisciivery and iiisjiection of these documents," and continued, " under tho last 
 hwul wo iiiusl follow the rules established in courts of equity, within which every 
 |ilniiitiir iiuist bring himself in order to obtain an inspection by bill of discovery ; 
 ami liiiTcforo if the facts be disputed, applicant ought to state all that a plaintiff 
 in diuity must state in order to entitle himself to a discovery and inspection :" 
 si'o Owen v. Nickson, 3 L. T. N. S. 737; Uamer v. Soicerby, lb. 734; Adamx v. 
 l.i:!/d ct (d, 3 II. ik N. 351 ; Daniel v. Bond et al, 9 C. R N.S. 716 ; London Gas 
 Li'l'ht Co. v. The Vistn/ of Chelsea, 6 C. B. N. S. 411 ; Lacharme v. The Qvariz 
 Kuik Mariima Gold Miumg Co. (> L. T. N.S. 502; Davey v. Ptmbcrton, 11 C. B. 
 N. S. 628; Woolley v. Pole, 14 C. B. N.S. 538. The piirty applying, therefore, 
 wild is in the same situation as a plaintiff in equity, must show, first, what is the 
 imtiire ef tlie suit and of the question to bo tried in it; and it seems also that ho 
 slioiilil depose in his affidavit of his having just grounds to maintain or defend it. 
 S'C'mdli/, the nffidam ought to state with suftieient distinctness the reason of the 
 .ili|ili(ation and the nature of tho documents in order that it may n])pear to ilio 
 cmiit or judge that the documents are asked for the purpose of enabling the party 
 api'lying to support his case, not to tind a flaw in the case of his opponent, 
 iind also that the opponent may admit or deny tho possession of them: lliint v. 
 //•!n7(, 7 Hx. 236; see McCay v. Ma/fiU, 3 Ir. C. L. R. 83. To this affidavit tho 
 opponent may answer by swearing that ho has no such documents, or that they 
 white exclusively to his own case, or that he is, for any sufficient reason, privi- 
 Ii'^'mI from producing them, or he may submit to show parts, covering the 
 reinainiii'r, on affidavit that the jiart concealed does not in anywise relate to 
 applii!nnt's case. The same course would be pursued inequity: Hunt v. lJcr>\t, 
 I I'x. -44; see also Attorney- General v. The Corporation of London, 12 Bcav. 8; 
 Hunt v. Limes. 27 Beav. 62; Gomm v. J'arrott, 3 C. B. N." S. 47; Jiollon v. The 
 Cnrporation of Liverpool, 1 M. & K. 88; Short v. Mercier, 3 Mac. it G. 205; Lind 
 V. Tlie y.v/f of Wit/ht ferry Co. 8 W. R. 540; Quin v. Raldiff. 'J W. K. 65; Merteni 
 y. Ilitiijh, 1 John. 785; Clinch v. Financial Corporation, L. U. 2 Eq. 271 ; flvp- 
 >:m>i,n v. Lord Burghley, L. R. 2 Cli. Ap. 447; Ln re Birmingham Banking Co. 15 
 !'■ T. N'. S. 203. In applications under this section, a place for inspection should 
 lieiinmod: Rogers v. Turner, 21 L. J. Ex. 3. The costs of the inspection ought, 
 ii'iineneral rule, to be paid by the party applying: //(// v. P/ulp. 7 Ex. 232; 
 but me, with the costs of the application, iu the discretion of the court or judge: 
 see section 195. 
 
 (y) It must be swoi-n that tlio document in respect of which application is made 
 
 nil 
 
J, > I 
 
 r 
 
 "1 
 
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 ll 
 
 11 
 
 m^ 
 J^^^^^^ 
 
 
 TflE COMMON LAW PHOrEnU'lE ACT. 
 
 [s 100, 
 
 Iiitorriit,'iili)- 
 rit'S inay bu 
 served oil 
 
 Jndfjje (]>) may order that tho party iigainst whom suoh ap. 
 plication is nindo, or if such party be a body cnrpomte, that 
 BDnio naiiicd Officer of suoh body corporate, shall answer on 
 nHidavit, Ptatinj^ what docmncrits he or they has or luivc Id 
 his or their possession or power relating to the matters in dis- 
 pute, ((j) or what ho knows as to tho custody th^y or nny i,f 
 them aro in, and whether he or they objects or object (und if 
 so, on what grounds) (r) to the production of puuh us aro in 
 his or their pcsscssion or power, and upon such airidavit Imin;,' 
 made, tho Court or ffudgo may make such furllicr order as is 
 just, (.s) 19 Vie. c. -ly, s. 175. 
 
 li^O. (0 In case the party if nut a body corporate wjiilJ 
 be liable to be called and examined as a witness npoa the 
 
 is ill liie "possession or power" of the opposite l>iirty, whicli answer to tlie wurili 
 "in t\w cwsUnly or u?i(ler control," \Kvd in section 107. A])pliciilion5J imvinitt'Mi 
 their oljcct tlie di.scovery of contents of docnrnents shoiiKl in tjeiuTnl be iniiile 
 under tiic section here nnnotated, and not under section 197 : Firric rt al v. Tlit 
 Great W'estfrn II. Co. 3 U. C. L. J. 197. As to the praetiee in reii'ard to coriKmito 
 bodies see Jimii/ar v. The Great Western Ilaihunii Co. '2S L. J. Cli. 7-11 ; AU'Ti.oj- 
 General el al v. The Mj/stery of Mercers et al, 9 W. 11. S') ; Lachanin' v. The Qwri: 
 Rock Mirripona Gold Muiiiii/ Co, 31 L. J. Ex. Su') ; Clinch v. Financinl C'urp'.'rii- 
 tion, L. 11. 2 Eq. 271. 
 
 [p) Court or Juihjc, llelativo powers: see note w to section 43. 
 
 (7) It is this part of the section that lends from inspection to discovery. Apiili- 
 cnnt havinj^ establi.slied a prima facie case as to some doeuiiient of wjiieh lie .-k'iks 
 iMfi])ecti<in, is upon tliis foundation allowed to proceed furtWer and to nsk vlmt 
 doeiiiiients his adversary lias personally or in his power relating to the iiuittir in 
 dis])Ute, &c. 
 
 {>•) (leiicrally where a party can resist tho application for inspection ho may 
 resist an application for discovery which leads to inspection. 
 
 (.f) Where tho defendant obtained an order for discovery under this sectinn. mi 
 its fiiip(:irin<;' that the plaintiff was in Australia, and that his wife wa? carryiii;: 
 on tiie aetii.ii by his authority, the order was varied by allowin;^ the aflidavitii 
 the wife and attorney to be Kubstitr.ted for that of tlie plaintiff: lin-rat v. Uw^itT, 
 1 V. &. !•'. 41U-4'i7. If the party deny havinij jiosses.sion of tho dociiinents, his 
 answer is (•onelusivc: see Jici/nell v. Sprye, 1 Detr. M. & Cr. 6.5t); Adams v. Ho'ji 
 et al, 27 L. J. Ex. 499. If it be shown that tlio document is lost, the iiiisweraJ 
 to contents is not available at the trial unles.s it be shown in the usual wny that 
 tlie docni'ieiit cannot be produced : Wolverhampton New Water Works Co. v, yZ-'ir'.'- 
 ford. 7 V\'. 11. 244. It lias been held that an oflice "Opy of an aiiidavit fil'd in the 
 cause is not admissible against the party who made it: Barnes v. I'urkrr. IJ !-. 
 T. N. S. 218; sec however Fleet v. I'errms, L. 11. 3 il. B. 536. But the eeiitrary 
 luis bi'cn h"ld to lie the law in this Province: Spojford v. Buchanan et ul. o 0. 
 S. ;!91 ; Wiiion v. Thorpe, 18 U. C. Q. B. 443 ; lUdddl v. Broicn, 24 U. C. Q. B. t"'. 
 
 (/) Taken from Eng. Stat. 17 «fe 18 Vic. cap. 12.5, s. 51, Founded upon the 
 seeoiid report of tlie Common Law Conunissioners, sections 37, 38. Dii-covirv 
 may be either of dueiuueuts in the possession of, or facts within the knowledge**' 
 
100.] 
 
 DELIVERY OF INTEaR0GAT0RlE3. 
 
 263 
 
 iimttcr, (") tho Plaintiff with the doflarution, niul tho Dcfcn- tii.M.piM.sitn 
 
 (lant with the plea, may deliver, or cither of them, by leave si,a;fi„? '" 
 
 uf tho Court or a Judge, at any other time, may deliver to the !,i,'iw'r' " 
 
 opposite party or hia attorney, (*;) interrogatories in writ- *'"'"'■ 
 
 tlie opiiosito pility. The preceding soction oxtcnils only to the first ; this Dcctlon 
 to both. 
 
 (») Tlip test is a very general one. Tn nearly every cnso whore the parties arc 
 ri'sidi'iit witlii'i the jurisdiction of the court, oven MHin<:;li foroiijtncrs, citiier party 
 liiis n riijlit to put his adversary in tho box, and so is Kubjeet to intorroi^aturii's 
 iindi'r tliiH soction : Fold v. Yonurt, 2t$ L. T. Hop. 108 ; s. c. 'J.') ].. .1. (l IJ. '1',). Tlio 
 rmirt will allow any intorrogatorios to bo administered wliieli ai'c relevant tn the 
 matters in issue, and which tho party interrogated would bo bound to answer if 
 in tlie witness box; /i/chlinnkl v. Malthi/, 10 0. B. N. H. 8;!8 ; IlturkuiH v. dtrr, 
 (ili. it S. 'J1I5; Stewart y. Smith, L. R. 'i'C. V. 29;( ; Mc Fiub.cn v. Mnyn- and Vor- 
 im-alimi of Liverpool, L. 11. f5 Kx. 270. Asking whether tho jilnintilf has had a 
 oori'c^poiidenco relating to the subject in disjjutc and dates and names of CDrrcs- 
 poniiiiits allowed : Rem v. Ilntch'nin ct nl, 10 C. B. N. S. 8o9. As to questions 
 ti'iuliiig to criminate : see note .s, [)age 20(5. 
 
 ((') Tho time appointed for delivery of interrogatories by plaintiff is with his 
 (liclaratidu, and by defendant with his plea. If at any " other time," i)artieuhir 
 rttlnitiiiu must bo paid to tho form of tho application. Convenienoo re(iuires that 
 if iiitui'rogatorios are delivered he.fore declaration, thoy should bo ai^companied 
 witii sdiiio statement as to the cause of action ; it must be shown that they are i)er- 
 tiiiiiit: Vroomex v. Morrison, 5 I'A. & IJ. 084 ; Anon. v. Parr, 1 1 L. T. N.S. 700 ; Atfcr 
 v. W'Jllmi, 7 W. R. 20B; Stern v. Scvastopitlo, 11 C. B. N. S. 7:57. Tho court or. 
 ii!(li,'e must be supplied with information in order to see whether the interrognto- 
 ritv; ni'c proper or whether they aro merely vexatious: Jfrh'enr.ic v. Clark, 4 I'rac. 
 11. y.'). The power to admit interrogatories may be abused to annoy tho oppo- 
 ?it',' party and to multiply costs, and theroforo ref|uiros to be carefully waleli''(l : 
 Cnmnuv. Aforrimn, 5 V.\. & li. 084; s.c. 20 L. T. Rep. 21:8. The leave to allow 
 intiTfonatories to bo delivced to a defendant betViro declaration was refused 
 where they wore required for tho purpose of seeing how to declare, and tlio phiin- 
 tilfiii his affidavit only stated ho believed ho had a good cause of action, without 
 slunving precisely what it was: Anon. v. I'arr, 11 L. T. N.S. 7oO. Leave was 
 gnmtod to a defendant to deliver interrogatories before plea pleaded, where the 
 plea was before the court and the interrogatories modified to have precise refe- 
 reiico to the plea: Street v. Cuthlert, 3 U. 0. L. J. 9. Leave may, it seems, bo 
 jraiited to a plaintiff even after j)lea pleaded without a special affidavit : Junirs v. 
 Ji'irux, 17 C. 15. 50(5. Defendant may ask leave to file additional pleas, and 
 tlitnusk leave to put ■ tf'iri)gat)rio3 for tho discovery of matter effecting them : 
 !<treil V I>r<)it hot, 2 1. 1 . L.J. -13. If the application to deliver interrogatories 
 be tidt 1 1 after issuf joint-d, the court or judge will then bo the better ablo 
 t' ,o their rolov: ■•ry and propriety: see Jone.i v. J'ratt, 6 IL »t N. (107 ; 
 
 J , V. I'arr, OB. •' . 203. in every case to entitle a party to file interro- 
 
 g" ii!) order of the court or a judge is made necessary : Jiank of Ujnier Cmi'ifla 
 
 V. i. /', 3 Prai . R. 46. There is very good reason for this; for otherwise in- 
 teiTdgaiciios V ,uM be delivered in nil cases, and would be added to every decla- 
 ratioa and pie:. The power given to the court or a judge is to prevent expense 
 bciiiir incurred unless tho interrogator' "s aro neceasary : Martin v. Jlentniinr/, 
 lu Kx. 478. Tho interrogatories intei, id should be submitted at the time of 
 application for leave to file them : Croomes v. Morrison, 5 Kl. it B. 984 : s. c. 2rt L. 
 1"- Itep. 238. AVhere a party to a cause has obtained a rule calling upon tho 
 opp(Jsite party to show cause why interrogatories should not be delivered to him, 
 
 ■t 1 
 
f 
 f 
 
 I 
 I,- 
 
 
 2G4 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 100. 
 
 ing (o) upon any matter (p) respecting which discovery maj 
 be lawfully sought, (q) and may require such party, or in the 
 
 and the affidavit sworn by the opposite p'lrty, for the purpose of opposing the 
 rule, gives the information required, the court will put the party moving in the 
 same position as if the information had been given upon interrogatories : Peck v. 
 Jievk, 27 L. T. Rep. 136. The court may allow interrogatories to be delivered to 
 a defendant after he has pleaded without a si)ecial affidavit: James v. Bum 
 17 C. B. 596. 
 
 (o) The interrogatories had better bo verified by affidavit: Cromna v. Morri- 
 son, 5 El. <fe B. 984. The common affidavit is not sufficient for the allowance of 
 interrogatories that have a tendency to criminate : Villesboisncl v. I'obiu et d, 
 19 L. T. N.S. 693. The court or judge will not settle Ihem : yjarljl y, Thomkm, 
 26 L. J. Ex. 214 ; liobson v. Cooke ct al, 4 Jur. N.S. 76 ; Phillips v. iiJmens, 11 L.T, 
 N. S. 512. The court or judge in such a case will exorcise a proper discretion in 
 sending them back to be reformed and put in a tit condition to be accepted : Ih. 
 Where a judge at chambers has exercised his discretion, the court nil! not re- 
 view it unless they see he is clearly wrong: Edmunds v. Greenwood, L 11. 4 C. P 
 70 ; Villesboisnct v. Tobin et al, 19 L. T. N.S. 693. 
 
 {p) Copies of written documents are not such " matter" as may be the subject 
 of interrogatories under this section: Scott v. Zvgomala, 4 El. <& B. 483; s. c. 
 SO L. & Eq. 155. 
 
 ((/) The right to deliver interrogatories in ca.ses iu which discovery conld not 
 bo obtained in equity is a vexed question. They may be delivered as to "any 
 matter u))on which discovery may be sought." The question turns upon the 
 word " discovery." It may mean information generally, or only such informa- 
 tion as can bo had by a bill in equity. In the first case which arose under the 
 section, the court abstained from giving any decided opinion upon the point: 
 Martin V. Ilcmndng, 10 Ex. 478. In a later case, Parke, B. is reported as follows 
 — "The section says that the party may be interrogated upon any matter as ,o 
 which discover!/ may be sought. It does not sa;~ that the power is limited to cafes 
 in which a bill of discovery will lie :" Osborn v. 77ie London Dock Co., 10 Ex. 
 702. But contrary to this opinion there is that of Campbell, C. J. : "I interpret 
 the meaning of these words to be that interrogatories may be put with refereite 
 to any matter as to which discovery may be sought by bill in equity. The rule 
 is laid down rather widely by the court of Exchequer in Osborn v. London Lock 
 Co., where it is said that the interrogatories may be administered to the s&me 
 extent as if the party interrogated was a witness under examination at tlie trial. 
 I think tiie true rule is that such questions maj be put as may reasonably bo 
 expected to produce answers tending to advance the case of the party who puts 
 them. The rule on this subject has been very clearly laid down by tlint n;reat 
 jurist. Sir James AVigram, and I r^ncur in that rule in the very terms in wliieli lie 
 has laid it down. AVhatever advances the plaintiff's case, may be inquired into, 
 tliou'j;h it may at the same time bring out matter which the defendant relies upon 
 for his defence ; but you shall not inquire into that which is exclusivel}' matter 
 of defence. Tiiat which is common to both the plaintiff and defendant may be 
 inquired into by either." " The very object of the section was to obviate the neces- 
 sity of going for assistance into a court of equity, which brought great scandal 
 upon the administration of justice:" Whateky v. Vrowtcr, Carew v. Davies, 25 L. J. 
 Q. B. 167 ; 26 L. T. Rep. 104 ; 6 El. «fe B. 709. Such also were Lord Campbell's 
 views as expressed in a st"! later case : " We are disposed to tliink that the section 
 now under consideration is intended to apply to cases only where the matter in- 
 quired into would be evidence in the cause, and it was not intended therefore to 
 give one party the power of asking the other how he intends to shape liis case. Such 
 uu inquiry is a mode of inquiri.ig into particulars upon oath, without the party 
 
3. 100.] 
 
 DELIVERY OP INTERBOQATORIES, 
 
 265 
 
 ca«e of a body corporate, may require any o*" the Offioerf of 
 such body corporate, to answer within ten days the questions 
 
 bcini^ compelled to confine himself to particulai's. When the justice of the case 
 recinirert such particulars to be given, the courts have generally the means of com- 
 pelling tliem to be given under such conditions as are reasonable. We think that 
 we oii"Iit at all events to hold that the discovery under the 51st section (Eng. C. 
 L. i' •'^''t, 18r)4), is confined by the words 'upon any matter as to which the 
 discovci/ may be sought,' to cases where a discovery would be given at equity 
 » * ' * * and a party rhall not make a fishing application as to the 
 manner in which his adversary intends to shape his case, and as to the evidence 
 by whicii he intends to support it:" Edwanh et d v. Wakefield, 27 L. T. Rep. 201. 
 The rigiit of a plaintiff in equity to the benefit of a defendant's oath is limited to tlie 
 discovery of such material facts as relate to the plaintiffs case, and does not extend 
 to the discovery of the manner in which the defendant's case is to be established : 
 ^Yi<;l■am on Discovery, 2nd ed. 15; see also Carew v. I)avia, 25 L. J. Q. B. 1G5. 
 To untitle a party to interrogatories it is not enough that he is entitled to disco- 
 very in.o(iuity on some ground and for some purpose, it must be on the same 
 iroiind and for the same purpose for which the interrogatories are sought; Jour 
 dam V. Palmer, 14 AV. II. 283. It is not intended that the mere practice of a 
 court of equity as to discovery shall be followed by courts of common law : Bartlett 
 V. Lfwis, 3 1 L. J. C. P. 230 ; Hawkins et at v. Carr, 14 W. R. 138. Held in an action 
 of trover by the assignees of a bankrupt to recover property that the defendant 
 was not entitled to deliver interrogatories to the plaintiffs, calling on them to 
 show " wiint ease they intended to set up as entitling themselves to recover," or 
 to state " what act or acts of bankruptcy they intend to rely upon in support of 
 tlieir title as assignees :" Edwards et al v. Wakefeld, 27 L. T. Rep. 201. But in an 
 action for money had and received and for non-dclivery of goods, where plain- 
 titf's case was that the defendant had professedly sold him goods and received 
 ]mynient for them as broker, wliile he was really the principal, the plaintiff was 
 iilldwed to ask whether the defendant was really principal or agent, and if agent 
 for whom and by what authority: ThiJl v. Leask, 10 Ex. 704. Where a party to 
 ail action has a specific case, but the materials necessary to support it are in the 
 hands of his adversary, ho is allowed to interrogate him as to this, but "a not 
 allowed to deliver to him interrog.atories the object of which is to fish out only 
 how his ndversary intends to shape his case, or whether or not there be some 
 latent defect in it, or to contradict written evidence: Moore v. lioherts et al, 3 Jar. 
 X.8, 12'il. In an action of ejectment, defendant was allowed to ask the plaintiffs 
 whether they claimed as heirs or grantees, and how they traced their pedigree : 
 iUrnfl V. Flethcr, 11 Ex. 543; Horsman v. Horsman, 2 U. C. L, J. 211 ; Keltlcwell 
 y. Ihmon, 5 U. C. L. J. N. . 21 ; Vhesler v. Wortle;! et al, 17 C. B. 410. Especially 
 if it be made to appear that defendant is wholly unacquainted with plaintiffs 
 title: Shale V. licw, 16 C. B. N. S. 209; Pearson et al v. Turner, Ih. 157; lupilhy 
 y.Slwfto, .53 Beav. 31 ; 117/1?* v. Pose, 36 L. J. C. P. 306. Interrogatories 'that 
 mi^lit bo proper in an ejectment brought by a stranger might however be im- 
 in'oper in ejectment by a landlord against his tenant: Stoate v. Por, 32 L. J. 
 CI'. 160, per Willes, J. Defendant in trover has been refused the right ^o in- 
 terrogate ])laintiff as to his title to the goods in question : Fcnnetj v. Forward 
 ft al, 14 W. R. 85. See as to an action for negligence, Pejipiatt et iix. v. Smith, 
 "'" L. J. Ex, 239. It has been held that plaintiff in ejectment has no right to ask 
 defendants by what title they hold possession: Ilorton v. Bott, 29 L. T. Rep. 228 ; 
 < r to declare the nature and particulars of their title : West v. Holmes, 3 IJ. C. L. 
 •' 72, Particularly if the answer would subject the party interrogated to a for- 
 feiture : Mai/ V. Hawkins, 24 L. J. Ex. 309 ; bli/th v. L'Estraiffe, 3 F. «fe F. 154 ; Pi/e 
 ^. Butt, r field etal, 5 B, A S. 829. But defendant may be interrogated as to wh tlier 
 lie is the real defendant: Sketchlcy v. Connolly, 11 W. R. 573. Interrogatories by 
 
 
 
 \i . 
 
 ..U% 
 
 
 4 ' 
 
2G6 
 
 THE COMMON LAW TROCKDURE ACT. 
 
 [ii. 100. 
 
 in writing by alBdavit to be sworn and filed in the ordinary 
 way; (r) and any party or Officer oniittinpr, without ju?t 
 cause, (.s) sufficiently to answer, within the above time, or 
 
 
 m'i 
 
 (lofendant to plaintiff after plea pleaded as to amount of damages claimed by plain- 
 tiff wore allowed : Ferrie ct al v. The Great Wentcrn Jiailwai/ Co. 16 U.C. Q. B. ol3; 
 see also Wriffht v. GoodlaJce et al, 13 "W. R. 319; s. c. 3 II. & C. 540; Doh»nn v. d 
 chardson, L. R. 3 Q.B. 778 ; but see Jourdain\. Palmer, L. R. 1 Ex. 102. In nn a;tion 
 by the drawer of a bill of exchanije purporting to be accepted by two defcnclaiiu 
 as members of a firm, one defendant suffered judgment by default and the otlier 
 pleaded inter alia that tlie bill was accepted by the other without his knowli'ilire 
 and in fraud of him, and beyond the scope of the authority of the party ncceiitiii" 
 with the knowledge of plaintiff. The plaintiff applied for leave to deliver iiitei'- 
 rogatories to the defendant, among others, the following: " Were you ever, and 
 if 3'ca when and during what time, a partner with the defendant, J. C. (the defen- 
 dant who accepted the bill), in any and what business and under what style and 
 firm." //tW too general : Jlobnonv. foo^e r< aZ, 4 Jur. N.S. 75. In general, inter- 
 rogatories in an action for slander will not be allowed: Stern v. Sevantopnlo, 14 C. 
 13, 737. But it being shown that the defendant in a certain place, in the prcs.'nce 
 of certain persons, had made imputations against the plaintiff to the effect that 
 he had committed forgery, and that the persons refused to give the plaintiff any 
 further particulars, the court allowed interrogatories to be put to the defcndiUiH 
 as to the precise words he had used : Atkinson v. Foabohe, L. R. 1 Q. 11 (52?, 
 This will not be allowed in an action for libel: Ti(pUng v. Ward, (> II. «t N. 74'.'; 
 3ffKemifi v. Chirk, 4 I'rac. R. 05. If the interrogatories be of a fishing cliaraeter 
 they will be disallowed: see note n to section 180. As to what interro^iildvie'i 
 may be delivered to an administrator who has i)leadod plene administrnvtt : see 
 I'eck V. Nolan, 14 Ir. C. L. R. App. xxxii. Form and extent of interro;;atorii"s 
 which may bo administered in an action for infringement of letters patent: ioo 
 Thomas v. TilUe, 17 Ir. C. L. R. 783; Hoffman v. PostiU, L. R. 4 Ch. Ap. 073. 
 
 (»•) The proper way to answer interrogatories is to give a separate and tli.stinct 
 ansv.-er to each question, that is to say, a specific answer to a specific qiie-tion: 
 Mcliin''a V. Ilurdu, 7 U. C. L. J. 205. It is not, it is i)resumed, for the jiiirty 
 answering to set out the interrogatories before his answers. As to intciM'D^Mto- 
 ries in the case of corporations : see .ianijer v. The Great Wetttern R. Co. 2S L. ,1. 
 Ch. 74". ; Attorne;/- General v. The Jf/stcri/ of Mereers et al, W. R. 8;>; Liidnirint 
 V. The Quartz Jiock Mtriposa Gold Mining Co. 31 L. J. Ex.335; Clinch v. /'(//(/. 
 cial Corporation, L. R. 2 Eq. 271; Mason v. Wyihe, 3 F. & F. 153; Mackmjns. 
 Holt, 33 L. T. Rep. 240. 
 
 (.i) Just cause. The tendency of a question to criminate is, it seems, a jn-t 
 cause; but that is no reason why the intori-ngator}' should not be allowed, if 
 bona Jide jiut: (hhorn v. The London Dock Co. lo Ex. 608; Chester v. H'"'''- 
 leij ef'al, 17 C. B. 410; James v. Barns, lb. BOO; Bartlelt v. Lewis, 12 C. B N. 
 S. 249; Baker v. /.'/«;'. 3 H. A C. 544; Bickford v. Darcy et al, L. R. 1 Kx. "'l. 
 It is, however, in eases of this kind, unfair to submit questions which a party 
 is clearly not bound to answer, the object being either to compel him to answer 
 them when not bound, or to refuse, and so create a prejudice against him; and 
 if interrogatories be not put bona fide they will be disallowed : Tiiplitui v, W'nnl, 
 (5 H. it N. 749; Peppiatt et vx v.' Smith, 11 L. T. N. S. 139; McKcnzic v. Chnk 
 4 Prac. R. 95; Edmunds v. Greenicocd, L. R. 4 C. P. 70; s. c. 10 L. T. N. ». -l-S 
 Stronger reasons should be given for putting such interrogatories than in uintr 
 cases, and such interrogatories should not be allowed on the conunoa nlii- 
 davit: Villeshoisnet v. Tobin et al, 10 L. T. N. S. C03. Whether .i witness h 
 entitled himself to object to the question upon the ground of its tendency, or h 
 
s. 100.] 
 
 ANSWEUING INTBRUOaATORIES. 
 
 267 
 
 suili cstcnclcd time as the Court or Judge may allow, all 
 {jiicstions as to which discovery may be sought, shall be 
 (leeinrd guilty of a eontcmpt, and may be proceeded against 
 afcordingly. (0 19 Vic. c. 43, s. 17G. 
 
 bound to snti.-ify the court tliat such will bo its eft«ct, in other words, whctlier the 
 court (ir the witness is to judge of tlie effect, is not settled: Fislier v. Ronahia, 
 12 1'. r>. 102; Osborn v. London Dock Co. 10 Ex. 698; Sidebolfomv Adkina, 29 L. 
 T. Hop. ;ili>. A witness cannot refuse to bo sworn and examined on tiio jjround 
 tlialtlie (inly relevant questions that conld be put to him are such as would tend 
 to ciiinitiiite liim. The opposite party has a right to insist on his being sworn, 
 and it is for him tlicn to claim the privilege, upon being asked the objectionable 
 quc'tiuns; Buyle v. Wiaeman, 10 Ex. 647. Illness would seem to be "good cause:" 
 'M: cl al V. Sj/ne, 27 L. J. Ex. 54; see also Geary v. Buxton, 29 h. J. Ex. 280. 
 On an (ipplication in chancery by the plaintiffs in an administration suit for an 
 order ('ii'cctiiig the personal representative to institute proceedings to ii'iijieach 
 th? validity of a judgment and execution which had been recovered by a third 
 ]vu'ty iinaiii>t a debtor of the estate, on the grounds of the same beinc: fraudulent 
 i.iid (.(illii-ive, the debtor was subpii'iiacd as a witness in support of the motion, 
 cm! ()n Ills cxaniinntion touching the io«a fides oi the judgment in qucsLion he 
 tliiis stated his objection : " 1 object to answ(>r on the ground that in this suit 1 
 cannot bo examined in respect of matters arising in anotiier suit in which I am a 
 [Kirty; and also that I cannot be examined in this suit, for the purpose of fishing 
 out ovidonce r.])on which to found a suit against nie, and to be u«ed as an npidi- 
 li.tion in which fraud and collusion are charged a";ainst me." Held not a good 
 ()!ij(vt!on: Grainier \. Latham, 2 Ch. Cham. 'iVti. Held also that to entitle the 
 Y.itni's-i to privilege on the ground that his answer W(ndd expose him to a iienaltj' 
 or forfoitnre, he must state explicitly that he I'clieves iiis answer would have that 
 ofi'cot, and not mendy leave it to be inferred that his an.->wer would have that 
 ell'";'t: lb. It i-i no ground for refusal, in an action for the infi-ingenient of a 
 ji.'.tcnt, tluit file aiiswer may expose dcfendai't's ( u'^tomei's tonction.'^: Telhy v. 
 /;'<;.«(.'"/ ft at, 18 C. 15. 64:;; ntu* is it r.ny ground of r'.^fii^al that the answer, if in 
 tl'.e nififnnitive, will (li>e!o;(! fraud: Coleman ct al v. Truman et nl, 3 U. it N. S71 ; 
 Ikiilnj V. Grijiihs, 1 II. .t C. 429; (^ondm'in v. Ilohovd d al, 1.") C. 15. N.?^. SOil ; 
 Diiijht V. Guodlife et al, 18 C. B. ?r. .■*. 757. Contra,' \{ it would establish a for- 
 frttni'f: J/'/'/ V. llairhina, II Ex. 210; Horlon v. BotI el al, 2 II. <t N. "ilO; Pile 
 V. IhiHorjiyid tt at, .j I?. <t S. 820 : (/nited S'ales of Amerlm v. McRae, L. If. 4 Yj\. 
 '•-V; H. e. L. 11. ;i CIi. Ap. 79; or bo detrimental to the public interest: Ueatson v. 
 i^hn,e, S \\\ ]>. 5.M.. 
 
 (/) Til" '-onrt will not grant an attachment until aftm' the time for answei-iiig 
 hv ''Xpiri'd, nor if the i>arty lia^ tiled answers before a]>]ili<'ation, though after time 
 iilpiinli'd: Carran v. Klphinstotie, 4 W. 11. 50; nor will it in general be granted 
 imlcss it a)ipear that personal service of the rule niai lu»s been effected: Birket, 
 V. Il'itme, 4 Dowl. 1*. C. 556. Hut where an order of a judge had been obtained 
 for til" (If'fendant to answer interrogatories, and he had obtained an extension of 
 tipio, tlio court granted the ride nisi for an attachment, nltliongh tli'>re hn<l been 
 110 i'orsonal service of the order to answer: Lork l^enfieldx. J'rait, 5 ],, T. N.S. 580. 
 A nil" fur an attachment may be isstied on the application of a party interested 
 in llio ^'lit in whidi the order was made, though not the person upon whose nppli- 
 I'lilimi it was originally granted: Madrid Bank v. Bai/le;/, 15 L. T. N. S. 292. It 
 iii lo't th" practice to issue an attachment for disobedience of a judge's order: 
 Grwer v. Yeovill, 29 L. T. l{e]i. 80. The order should first be nu\de n rule of 
 court ; Jb. The attachment will not be granted unless the party has been guilty 
 of nogk'i't or refusal : Van Il-jf \. I/orrsler, 27 L. J. Ex. 299 ; Lord Seafieldv. I'ratt, 
 
 1 i'i 
 
 i .ijj 
 
 " it 
 
 ?.■ 
 
 
 T! vi 
 

 t ' 
 
 V 
 
 It' 
 
 1.1 'n, J 
 
 f ■ 
 
 ■;M 
 
 ijj 
 
 <kj 
 
 iNi . 
 
 If,, 
 
 268 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 191. 
 
 Affidavit 191. (m) The application for such order (v) shall be made 
 
 tho'ain.iira- "P*^** ^" affidavit of the party proposing to interrogate, (it) 
 leav/tl) ""*^ ^^ ^'^ Attorney or agent, (a) or in the ease of a body 
 ^T^'.o'I.'Il, corporate, of their Attorney or agent, (i/) stating reppectively 
 ries imist be that the deponent believes that the party proposing to inter- 
 rogate, whether PlaintiflF or Defendant, will derive material 
 benefit in the cause from the discovery which he st-eks, 
 that there is a good cause of action or of defence upon tlic 
 merits, (;j) and if the application be made on the part of tlio 
 Defendant, that the discovery is not sought for the purpose of 
 Where the delay J (a) but where it happens, from unavoidable ciroum- 
 vuutoiUrom stanccs, that the Plaintiff or Defendant cannot join in such 
 
 6 L. T. N.S. 674 ; Hill v. Glen, 26 L.T. Rep. 02 ; Curran v. Elphinslone. 4 W. R. r.ii; 
 Riiim/ord v. Campbell. 2 L. T. N. S. 432; Be Faria v. Laicrie, 17 L. T. N. S. ■!%. 
 Where a party has substantially answered interrogatories, but there aro tletVcts 
 in his answers winch tlie court does not consider intentional, the jjroper course 
 is to apply at chambers under section 192: Bender v. Zimmerman, 29 L. J. Ex. 
 244. A rule for an attachment against the directors of a railway company was 
 refused where the order did not specify what office of the company was to make 
 the answer : Button et al v. South Eastern Railway Co. 3 Week. !Xotes, 20. 
 
 (?«) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 52. 
 
 (v) i. e. Such order as is mentioned in the preceding section. 
 
 (to) i. e Either plaintiff or defendant, even though not beneficially interested: 
 Cliristopherson v. Lotinga, 16 C. B. N. S. 809; Barwick v. JJe Blaquicre ct al. 
 4 Prac. R. 267 ; see also Tiffany v. Bullen, 18 U. C. C. P. 91. 
 
 (x) It is to be observed that the applicatio.i must be made upon an affidavit of 
 the party and his attorney or agent. It is material that there should in siicii ap- 
 plications be a responsible officer of the court. The attorney must in any event 
 be a party to the affidavit. But the objection cannot be taken in banc uftui' an 
 application in chambers, without objection there: Whalele;/ v. Crawford, tjarcn- 
 V. Davies, 34 L. tt Eq. 200. In case of necessity, under circumstances of iiftiili- 
 arity, such, for example, as the residence of the client in parts abroad, an atHiiiivit 
 in a form other than that here required might be received : see note / to .sei:!;;::: 
 189. Where a person sues or defends in person, no afHdavit of an iittorn'V is 
 necessary: Oxlade v. The North Eastern Railway Co. 12 C. B. N. S. 350. 
 
 (y) In this case an affidavit of the attorney or agent oidy is made sufficient: 
 Bee previous note. 
 
 (."> Whether plaintiff or defendant apply there must be an affidavit of niciit?: 
 May V. Hawkins, 11 Ex. 210. And in either case the words "upon the inciils ' 
 should be incorporated in the affidavit: Anon. 26 L. T. Rep. 197. If the ni'lili- 
 cation be 6p/orc declaration, a general affidavit under this section would be wliclly 
 iusufficient. In such case information must be given of the cause of ncticin: 
 Croomes v. Morrison, 5 El. & B. 984 ; see also Jones v. Barns, 17 C. B. 596; Mnrtin 
 V. Hemming, 10 Ex. 478. 
 
 (a) Delay should be negatived in the affidavit. 
 
192] ORAL EXAMINATION OF INTERROGATED PARTY. 
 
 269 
 
 affidavit, (i) the Court or a Judge (c) may, upon aflSdavit of •|i™,';,"»,|i'^. 
 the circumstances by which the party is prevented from so ^'t' 
 joiiiins, allow and order that the interrogatories may be de- 
 livered without such affidavit. (J) 19 Vic. c. 43, s. 177. 
 
 19*2, (e) In case of omission, without just cause, (/) to J",[^^!'j^,°'t„ 
 answer sufficiently such written interrogate ies, (</) the Court '''"5'".'j;„f'"' 
 or a Judsre (h) may direct an oral examination of the interro- '"' 'Xiimincd 
 
 u' " " i? V / .7 _ ^ orally or 
 
 catod i)arty, as to such points as they or he may direct, to be idinniim.ud 
 
 » ' •" ' "^ ■' to ]iro(lni'e 
 
 had before a Judge or any other person specially named : (t) tiie iiocu- 
 and the Court cr a Judi^c may, by such rule or order, or by iMfom 
 
 whom. 
 
 {h) AVlint may bo unavoidable circumstances in the opinion of the court or 
 incline can only be determined with reference to the speciiil circumstances of each 
 p;uti;(iliii' case as it arises for adjudication: see note i, page 25'J. 
 
 (r) Court or Judge. Relative powers : sec note w to section 48. 
 
 ( /) This is in effect the interpretation placed on section 189, though the express 
 laiigiiag'o here used is not there used : see note I, page 259. 
 
 (() Taken from Eng. Stat. 1*7 & 18 Vic. cap. 125, s. 53. Founded upon the 
 second report of the Common Law Commissioners, section 39. This section is an 
 (xtiiision of the right of one party to put written interrogatories to his o2)ponent. 
 
 (/) Jmt cause. See note s to section 190. 
 
 (fi) The right orally to examine seems to be restricted to cases where the party 
 intcri'Offrtttd has without just cause omitled to answer sufliciently. Tliis is ratiier 
 more limited than the commissioners intended it should be. Tliey recommended 
 an oral examination "in case of an insuflicient answer, and in any other case in 
 which it may be made to appear essential to justice, subject to the control of tho 
 court." The jurisdiction of the court under this section will be exercised with 
 ciuitiou and with a due regard to the nature and circumstances of tlie action: 
 Swift V. Nun, 26 L. J. Ex. 305. A defendant sued as administrator answered 
 llmt he hud not taken out administration, and tlie Court of Exchequer refused a 
 ruL; for his oral examination, there being no affidavit in support of the applica- 
 tion, although the plaintiff shewed cause in the first instance and waived tho 
 ulijection : lb. The. party interrogated is not bound to set out the contents or 
 collies of documents admitted by him to be in his possession : Scott v. Zi/i/omala, 
 ■1 1^1. k IS. 48:^. In principle this section is the same as that of section IBS, which 
 allows an oral examination of a witness who declines to make an affidavit. One 
 i!i4iiictiun may be noted, wliich is, that under the former a judge only seems to 
 !i;ivu jurisdiction whilst under the section here annotated, there is express power 
 ill tile court or a judge. I5ut it is more the business of a judge in chambers to 
 settle these questions than the court in banc : Bender v. Zimmerman, 29 L. J. Ex. 
 ili; Mfiidows V. Kirkman, 2 L. T. N. S. 251, The ajiplieation should be iriado 
 i'roniptly; Chcuicr v. Worthy et al, 18 C. 13. 239. There should be a rule nm ov 
 Mwiiiioiis iu tiie first instance : 
 '-'1 L. .J. Ex. 305. 
 
 Turk et al v. Syne, 27 L. J. Ex. 51 ; Sivijt v. Nun, 
 
 ih) Relative powers: see note w to section 48. 
 
 (i) The most likely persons to be appointed for the dut}' under our act are 
 iHiblic officers, such as county judges, clerks or deputy clerks of the crown, «tc. 
 
■HS 
 
 j' I'-iii 
 
 ,'9kn 
 
 
 
 270 
 
 THE COMMON LAW PROCEDUaE ACT. 
 
 [8. 193. 
 
 Examina- 
 tion tu l>o 
 till il III tliu 
 ol'iice uf tlic 
 Court. 
 
 any subsequent rule or order, command the attendnnec of 
 such party or parties before the person appointed to take such 
 examination for the purpose of being orally examined as afore- 
 said, or may command the production of any writings or other 
 documents to bo mentioned in such rule or order, (j) and 
 may impose therein aufjh terms as to .such examination anj 
 the costs of the application and of the proceedings thereon, 
 and otherwise, as to such Court or Judge seoms just, and 
 such rule or order shall have the same force and effect and 
 may ha proceeded upon in like manner as an order made un- 
 der the one hundred and eighty-fifth and one hundred and 
 eighty-sixth sections of this Act. (/j) 19 Vic. c. 43, s. 178, 
 
 193. (0 Whenever, by virtue of this Act, an examination 
 of any party or partio?, witness or witnesses, has been taken 
 bcfjre Tt Judge of cither of the Superior Courts cf I'ommon 
 Law or of any County Court, or before any OlCcer or other 
 person appointed to tak3 the same, {m) the depositions taken 
 down by such cxaminor shall be returned to and kept in the 
 oHlce of the Court (Principal or Deputy Clerk's or Clerk's 
 office, as the <-a<^r may ii",') in whi(jh the proceedings are car- 
 ried on, («y ^^^ oui-ic copies of such depo.«itions may be given 
 out, (o) and the examinations and depositions certified under 
 the hand of the Judge or other officer or person taking the 
 iVi'i'vici.n. f. snnie, (^y) shall, without proof of the signature, {(j) be received 
 
 (j) Tliousifh a privilege mny exist as to the party himself or as to ccrtnia 
 (locunient.s, tlio production of wliicli 13 required, it if? apprehended that the party 
 should, in obedience to the order of the court, nt least attend, and then claim Ids 
 privilege. 
 
 (/•) See notes to sections 1 85 and 180. 
 
 (/) Taken from Eng. Stat. 17 & 18 Vic. cap. i25, s. 53. 
 
 (>h) Extends apparently to examinations had under sections 186, 188 and 192, 
 
 (n) All prcceedings to final judgment may be carried on in the office whence 
 first process issued: section til. 
 
 (o) If the copy appear to have been delivered out of the office in the due course 
 of business, it will be prima facie taken to bo correct: Duncan v. Scott, 1 Cuuip. 
 102; see notes to section 12S. 
 
 (p) This apparently means the original examinations or depositions. The 
 meaning cannot be that office copies given out should be certified by the Jud^'e 
 or other officer or person taking the same; for the oflicer takes the originiil ex- 
 amination or depositions, and not office copies. 
 
 ('/) The original depositions only appear to bo made receivable ns eviJence 
 without proof of signature. But see latter part of note « to section 1 8'J. 
 
194] 
 
 SPECIAL RErORT OF EXAMINATION. 
 
 271 
 
 and road in evidence, (r) saving all just exceptions, (rr) 
 19 Vic. c. 43, 8. 179. 
 
 I!) I (-0 Kvery Judge, Ofliccr, or other person named in Kxaniimrs 
 aiiv t^iiuh rule or order as aforesaid, for taking examinations slu.nai'iu- "^ 
 under this Act, Q) may, and if need bo, shall make a special t',',',,\|" ^''"^ 
 report to the Court in which such proceedings are pending, (h) 
 touching such examination and the conduct or absence of 
 any witness or other person thereon or relating thereto; (i') 
 and the Court shall institute such proceedings and make such oniiiH 
 ordor or orders upon such report as justice may require, and *'"''^"'"'"- 
 
 (i) Tlie effect of this section is to iimko tlie depositions or cvnuiinations e\ i- 
 dcncu »\Mn their bare production. 
 
 ()y) Suviiiff all Ju.1t exceptions. It is difllcult to say what would bo a "just 
 exception" witliin the meaning of tliis section. It may bo doubted whether tlie 
 (kpiisitions can be read if the witness bo within the jurisdiction of the court and 
 iDiiilielliible to attend for oral examination at the assizes : sec Proctor v. Lainson, 
 1 C. it P. ()-!*. Depositions taken under a commission to exaniiuo witnesses can- 
 not be read if the witne!?s be within the jurisdiction of the court and of sound 
 !iiiiid, ite. : Con. Stat. U. C. c. 32, s. 21. If there has been any irregularity in 
 i "iici-jding wilii a commission to examine witnesses, as, for instance, if it were 
 I xccuted without any notice to the opposite party to ci\.'ible liim, if he pleased, to 
 jiHtcni.^s interrogatories, sucli irregularitj- is a good objection to the admissiijility 
 (il llie ilepodilions: Strin/ielli'r \. A^cwton, Q C. <fe P. K13. Where n witness who 
 liiitl been examined on interrogatories in a foreign country, stated in one o f bis 
 answL-rs the contents of a letter whicli was not produced, it was held on the trial 
 i;f tlic eanse in England that so much of the answer as related to the contents of 
 tile letter was not receivable in evidence, although it was urged in support of its 
 iidi,ii>>ibility that there were no means, as the witness was out of the jurisdict. on 
 of tlitf (,'()UPt, of compelling the production of the letter: //>. Sed qu. Sec t his 
 iii^e dill'erently reported in 2 Moo. A R. J/Tii. 'W'liere the witness was both exam- 
 ined and cross-examined, the answers to the oxaniinations-in-chief were held not 
 to be adinissiblo without the answers to the cross-examination: Temptrleji v. 
 ^>o/^ 5 C. & p. 341 ; see further Slfp/iens v. Foster et at, i) C. & P. 281). Objec- 
 tiiMiable questions or answers maj- be struck out at tlie trial, so as not to be laid 
 before the jury, but the right to nuiko the application does not extend to the 
 partv who jiroduces them : Hutchinson el al v. Bcruar'l. 2 Moo. & II. 1 ; Lady 
 Tiifion V. Whilmore et al, 9 L. J. Q. B. N. S. 405; Williams v. Williatiis, 4 M. 
 i S. 4'J?. 
 
 origin of the 
 
 W Taken from Eng. Stat. 17 & 18 Vic. cap. 12.5, s. 56. The 
 section seems to be Eng. Stat. 1 Wm. IV. cap. 22, s. 8. 
 
 (0 i e. Under sections 180, 188 and 192. 
 
 (") The odleer who takes the examination is "required to make" a special re- 
 port, " if need be." Qu. Who is to judge of the necessity ? Can a party to the 
 cause require the officer to make a special report ? 
 
 ((') The matters that may enter into the subject of the special report are here 
 eminiorated, viz., the conduct or absence of any witness or otlier person. If a 
 witness produced improperly conduct himself from bias or other corrupt motives, 
 that may be made to ajipear. If there be reason to believe that a witness absent 
 
 t% 
 
 W 
 
 
 vL ' : 
 
 ■111 
 
« 1< 
 
 t. m 
 
 ':f if 
 
 Ir-f 
 
 i 
 
 fc*- 
 
 ^ \f»in 'I 
 - it! < .■" 
 
 2:2 
 
 As to costs 
 of rule and 
 exuiiiitia- 
 tion. 
 
 Insppction 
 of ii'iil or 
 
 THE COMMON LAW PROCEDURE ACT. [SS. 195, 190, 
 
 OS may be instituted and made ia any case of contempt of 
 tho Court. (10) 19 Vic. c. 43, s. 180. 
 
 19S- (,x) The costs of every application for any rule or 
 order to be made for tho examination of parties or witnesses 
 by virtue of this Act, (1/) and of the rule or order and pro- 
 ceedings thereon, (.:) shall be in the discretion of the (\iurt 
 or Judge by whom Euch rule or order is made. (a). 19 Vic. 
 c. 43, s. 181. 
 
 100. (Jj) Either party may apply to the Court or a Judge 
 for a rule or order for the inspection by the Jury, or by liia- 
 
 lins been kept away through the influence of either party, tliat also may bo made 
 to appear. So if a party to tiic cause, or any other person upon his behalf, dis- 
 turb the examination. These, and matters of a similar nature tiiat will, when 
 nncessary, readily suggest themselves, furnish materials for a special report. 
 
 • (ic) See note t to section 1 90. 
 
 (x) Taken ^ m Eng. Stat. 17 A; 18 Vic. cap. 125, s. 57. 
 
 (y) See sections 186, 188 and 192. 
 
 (z) May refer to admissions or jther matters incidental to but arising out of 
 the examinations. 
 
 (a) The costs of inspection oujjht as a general rule to be paid by the pnrty 
 applying: Jlill v. I'hilp, 7 Ex. 2.'//';; but are under all circumstances in the dis- 
 cretion of the court or judge: Smith v. Tlie Great Western Railway Co. 25 L. J. 
 Q. B. 279. They are not necessarily to be paid by the party applying: Slilwtllet 
 al V. Ruck, 4 II. & N. 468. The order should in express terms make provision for 
 the costs: Smith v. The Great Western Railway Co. 25 L. J. Q. B. 279; and if not 
 so provided for none can be had: lb. As to costs of an expert: see Churtons. 
 Freicen, 16 L. T. N. S. 171. 
 
 {h) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 58. Founded upon tlic 
 second report of the Common Law Commissioners, section 42. The first dc-^i'ce 
 of evidence, and that which, though open to error and misconception, is obviously 
 most satisfactory to the mind, is aftbrded by our senses. In certain cases, from 
 an eai'ly period, either party to a suit was allowed to obtain a view by a jury, tiie 
 view to be of the " place in question." The origin of the practice is not traceable 
 to any statute of wliich we have an account. But the frequency of applications 
 having been found to be an abuse which tended nuich to the hindrance of justice, 
 the legislature in the course of time endeavored to circumscribe the practice. One 
 source of abuse w,as a rule which made it necessary for a cause to be entered for 
 trial before r, view could be had. Another was that the applications, when made 
 at the trial, were gi-anted, as of course, without inquiry. These causes combined, 
 and attended with tho difliculty of procuring the attendance of the necessnry 
 viewers at a future trial, had the eflfect in many cases of rendering unavoidable, 
 repeated and vexatious postponements of a trial. The remedy applied was tlint 
 of Stat. 4 Anne, cap. 16, s. 8, which empowered the courts to grant a view 
 previous to the trial, and then only when proper and necessary : 1 Burr. 25:^. 
 The view being authorised, the next inquiry is the manner in which it shall 
 be conducted. This was made to depend upon Eng. Stat. 3 Geo. II. cap. 25, a, 
 14, of which our Stat. 34 Geo. III. cap. 1, s. 14, was a copy. "Writs of venirt, 
 
19G.] 
 
 INSPECTION OP PROPERTY. 
 
 273 
 
 self or by his witnesses, of any real or personal property, the personal 
 insoeotion of which may bo material to the proper determina- ]rity"i,iu-- ^ 
 
 iaspeotior 
 
 facial and diflringat, were, upon application, issued to the sheriff or otiier person 
 ftppointed, commanding him to have six or more of the jurors named in tlie writs 
 or in tlie panel annexed tliereto at the "phxce in question," to view it at some 
 convenient time before the trial. In every case where a view had been authorised 
 tlicre were two classes of jurors, from wiiich conjointly the jury chosen to try the 
 cause wns selected. The *irst was that class who had their appointment under 
 the special venire facitis and distringas, already noticed. The second, all such 
 iiirors as were ballotted for at the trial in open court. The composition of the 
 iiirv to try the cause was in this manner: six or more of the jurors who had acted 
 as viewers being in attenLJance at the trial, were first swoin, and then only so 
 manv more were added to them from jurors drawn in court, so as in the whole to 
 make the number twelve. The twelve thus chosen were the ju.-y sworn to try the 
 cause. In the working of this practice under the Stnt. of Geo, 11., owing to non-. 
 attendance of viewers, and other causes not necessary to bo mentioned, some 
 dissatisfaction was experienced. However, the ^rent cause of mischief was an 
 opinion which prevailed that the six viewers whose attendance vas necessary 
 should be six or more of the first twelve named upon the panel, and that in the 
 event of their neglect to attend no trial could take place. The endless delays 
 whieh arose out of such a construction can well be conceived. Whatever ground 
 mii'lit have existed for this opinion at one time, there can be none at th'^ ])resent 
 (lav. It was enacted " that when n view shall have been allowed, those men who 
 shall have had the view, or such of (hem as shall appear upon the jury to try the 
 i>>ue, sliall be first sworn," &c.: 13 & 14 Vic. cap. !)5, s. 52, taken from Eng. 
 Stat. 6 Geo. IV. cap. 60, s. 24. The changes effected in the law by the present 
 act are, first, as to the cases in which a view or inspection may be procured ; and, 
 EMondly, the persons by whom it may be had. From the use of the words, " the 
 place in question," in all the former statutes, it was decided that views could bo 
 obtained only in proceedings of n local nature, such as trespass qu. cl. fr. , nui- 
 sances, and the like: Stones v. Menhem, 2 Ex. 382. The right of inspection is 
 nnw extended to "any real or personal property, the inspection of wiiich may bo 
 material to the proper determination of the question in dispute :" Baker et al v. The 
 London and South Western Railway Co. L. 11. 3 Q. B. 91 ; Ennor v. Barwell, 8 W. 
 R. 3i)l; s. c. 1 DeG. F. & J, 529. And the inspection of property which for- 
 merly could only be had by jurors specially selected for that purpose, may now 
 be " by jury or by himself (the applicant), or by his witnesses." It is presumed 
 that, as a general rule, inspection by a Jury under this section will be conducted 
 in the same manner and subject to the same rules as views by a Jnri/ before this 
 act. In the Eng. C. L. P. Act, 1854, section 58, there is an esi)ress declarotion 
 that siuili shall be the case. Inspection by the applicant or by his witnesses 
 stands more in doubt ; first, as to the time when the inspection may be made ; 
 secondly, as to the mode of application ; thirdly, as to the mode of inspection ; 
 fourthly, as to eff^ect of inspection. To dispose of inspection by jury : a rule for a 
 view is first issued, and upon that writs of venire facias and distringas: Con. Stat. 
 U. C, c. 31, ss. 124, 125. In England, though not in this province, the rule may be 
 had at side bar: Eng. R, 48 li. T. 1853. Both in England and here the party 
 applying must make certain deposits of money, and in other respects comply with 
 rules of court made for his guidance: Eng. R. 49 H. T. 1853; R. G. pr. 39; 
 Con, Stat. U. C. c. 81, s. 124. In Eiiuland the view may bo had upon the rule 
 without intermediate writs: Eng. C. L. P. Act, 1852, section 114; but in this 
 Province the writs are still necessary: Con. Stat. U. C. c. 31, s. 126. And in the 
 writs, when issued, " shewera" must bo named, whose duty it will be to show the 
 property to the jurors: lb. section 126; and unless the shewers be so named, 
 tliere can be no view as required by the act: Taylor v. Thompson, 1 D.jwI. P. 0. 
 18 
 
 '( *». 
 
 

 •ill 
 
 I >' 
 
 274 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 19T, 
 
 
 
 tlofl, nr wit- 
 
 When tho 
 Court or a 
 Judge iiiny 
 allow in- 
 gpot^tidii of 
 
 du(:UlllL'Util. 
 
 tion of the question in dispute, (c) and the Court or a Judge 
 may make such rule or order upon such terms as to costs and 
 otherwise ns such Court or Judge may think fit; (cZ) but 
 nothing herein contained shall affect the provisions of any 
 Act as to obtaining a view by a Jury, (jld) 19 Vic. o. 43, 
 8. 172. 
 
 INSrKCTION OF DOCUMENTS. 
 
 107. (c) Either of the Superior Courts of Common Law 
 and any County Court in which an action or legal proceeding 
 may be pending, or any Judge thereof respectively in vaca- 
 tion, may, on application (and in any such action or proceed- 
 ing in either of the Superior Courts, when the Attorneys for 
 both parties reside in the same County, the Judge of the 
 County Court of such County may on application), compel 
 tho opposite party to allow the party making the application 
 to inspect all documents in the custody or under the control 
 of such opposite party relating to such action or other legal 
 
 
 218. It was held that llic jury could not bo taken out of their county, even by 
 con.scnt: Malinsv. Lord Dunraven, 9 Jur, C!)0; Iluwthorne v. Denham, 3 Ir. Law 
 Rep, 1 ; but now this may bo done by order of the court : Stat. 21) A 30 Vic. cap. 
 46. After view tho proceedings may be such us ah-ondy noted. With respect to 
 inspections by the party or liis witnesses, tho practice will be found to resemble 
 inspections under tho Eng. Patent Act, 15 & 16 Vic. cap. 83, s. 42, tlie princiiile 
 of wliich it was recommended by tho commissioners sliould be extended to all 
 cases, which recommendation is hero carried into effect. Tho practice under the 
 Patent Act is not to grant inspection as of course, but only when shown to be 
 material for tho purposes of tho cause: Amies et al v. Kehey, 22 L. J. Q. B. 84; 
 Shaw V. The Bank of England, 22 L. J. Ex. 26 ; but application may be made before 
 declaration: Amies et al v. Kelsey, 22 L. J. Q. B. 84; see also Patent Type Found- 
 ing Co. V. Walter, John. 727 ; Patent Type Founding Co. v. Lloyd, 5 H. <fe N. 192; 
 Meadows v. Kirkman, 29 L. J. Ex. 206. 
 
 (c) In an action for not accepting gun barrels sold according to a pattern, in- 
 spection was granted to tho defendants of the pattern barrel, in the possession of 
 plaintiffs, and of the residue of tiio barrels tendered, many of which were pro- 
 duced in court, and inspected and guaged by witnesses in tlio presence of tlic 
 jury : Meyer et al v, Jiarnett et al, 3 F. «fe F, 696. But in an action ogainst a gas 
 company for negligently allowing gas to escope, whereby plaintiff's house was 
 destroyed, inspection by defendants of a model made for plaintiff from memory, 
 after the destruction of his house, which had since been rebuilt, was refused; 
 Morley v. The Great Central Gas Co. 2 F. A F. 373. 
 
 {d) The court may not only order inspection but order the removal of obstnic" 
 tions, with a view to facilitate such inspection : Bennett v. Griffiths et al, 3 L, 1- 
 N. S. 735; see also White v. Storey, 43 L. T. 91, Ex. T. T. 1867. 
 
 (rfrf) See Con. Stat, U. C. c, 31, ss, 124, 125, 126, 127, 128. 
 
 (e) Taken from our repealed Statute 16 Vic. cap, 19, s, 8, which was a transcript 
 of Eng. Stat, 14 <t 16 Vic. cap. 99, s. 6. 
 
 -i 1 ^ 
 
r.'T] 
 
 INSPKCTION OP DOCCMKNTS. 
 
 275 
 
 proooding, (/) and if necesnary, to take exuiniiiod copies of 
 tlic Kimo, in all cases in which previous to tho passing of 
 
 (f) Tlie courts have a common law jurisdiction wlicro nn nction is brotiQjIit on 
 ;.n [iistniiiient to order inspoclion of it: Doe d. Chihl et al v. Hoc, \ VA. & li. 285, 
 Iff Lord Cunipbell, C. J.; Vriee v. Harrison, 8 C. ]l. N. S. 017; Coleman et al v. 
 Tiucmaii el al., 3 II, <fe N. a71 ; Cooper v. Saiiiiers, 1 V. & ¥. 13; nnd now tiint 
 pnjfrt is ftboli-iiic'd tlio power is nioro necessary tlian ever: iz/e I'enurih liar- 
 hour, pork and Railway Co. v. The Cardiff }\'»(efWork!i Co. 7 C. M. N. S. 81('. ; 
 11,11 V. Tlie Great iVeatern Railway Co. 10 C. B. N. H. 118. But tho powe:- of tlie 
 cuiiris al common law is very uncertain. In genernl it is necesnury for the party 
 gplilyinij to sliow that ho has a direct interest in tlio document, os, for example, 
 iinik'rk'ssce in n lease, or that his opponent holds the doenmcMt under some trust, 
 cxpriss or implied, as, for example, that the document, tlioujjjh executed by both 
 jiartlL's, is in tlie possehsion of one: Dlaheyy. J'orler, 1 Taunt. ;}8ti; Butfinan et al 
 V. Phillips, 4 Taunt, 167; Taylor v. Osborne, lb. 159; RalcUffev. Uleasby, 3 Binjf, 
 118; Lrd I'ortmorc v, Goring, 4 I3ing. 162 ; Lawrence v. lluoker, 6 iJinir. 6 ; l^tn-ct 
 V, Urown. Taunt, 3(i2; Morrow v. Sanders, 3 Moo. (171 : ThrelfnU v. Webster, 
 '; Mild. u.V); JUof/y v. Kent, 6 Binsj, 714; Devenoge v. Bouvirie, 8 llinj;. 1 ; ,6'o(7,',« 
 V. XiikIi, 9 Bing. 723 ; Inman v. Hodgson et al, 1 Y. 4 J, 28 ; Woodcock el al v. 
 W'irihinginn, 2 Y, ct J, 4 ; Neale v. Strind, 2 C. & J. 278 ; Travis v. Collins, lb 
 025; ll':d V. Coleman, 2 C. tfe M, 456 ; Doe d. Morris v. Roe, 1 M. & W. 2(j7 ; Doe 
 
 I V. S'ight, 1 Dowl. P, C, 163 ; Evans v. Delegal, 4 Dowl. P. C. 374 ; Jonct 
 
 V. P'tlmer, lb -146; Tiinzel! -j, Allen et al, 7 Dowl. P, C, 4!)(i; Griffin v, Smythe, 
 8 Dowl. \\ C. 40U; Goodliff y. Fuller, 14 M. «fe W. 4 ; Stcadman v, Arden, 15 M. 
 l:\\. .187; -'HI v. Barlow, 6 D. dt L. 375; Bluck v. Gompertz, 7 Ex, 67; Doc d. 
 -Iftvy V. Langford, 21 L. J. Q. B, 217; S/iaw v. Holmes, 3 C. B. 962; Powell v, 
 Itnifiimn/ et al, 4 C. B. 541 ; Foster v. The Bank of England, 8 Q, B. 689 ; I'ritchett 
 \-.!i,nnrt, 7 C. 13. 625; Flood v. Wilson, Batty, 73 ; Williams v. Qosson, 3 Ir, Law 
 Hoc, 0. S. 57; Murphy v, Fitzpatrick, 3 Jr. Law llec. O. S, 161; Alexander v. 
 .V'xnnd'.r, Ale. & Nap. 109; Clarke v, Mc Daniel, 4 Ir, L. R, 131; Beasley v. 
 IVrrc/;, 1 Ir. C. L. R. 365; Taylor v, Quinton, 2 Ir, Jur, O. S, 72; or as to docu- 
 meiita upon which an action or defence is irainodiately founded, that there is a 
 siispicinn of forgery, or that the documents have been improperly dealt with since 
 cx'.oiition : Thomas v, Dunn, 6 M, & G. 274; Woolner ct al v. Dcvcreux, 9 Dowl. 
 r. C. 67.'!, ;)cr Tindal, 0. J,; but see Chetwind v, Marnell, 1 B. & P, 271; Jessel 
 V. miJingcn, 1 M, & Scott, 605; lUIdyard v. Smith, 1 Buv^. 451; Threl/ull v. 
 Wflsitr, lb. 161 ; Riehey v, Ellis, Ale, «fe Nap. Ill ; Smith v. MeGoncgal, 2 Ir, L, 
 H. 272 ; Dahj v. Kelly, 4 Ir, L, R, 16, In general, it is necessary for the party 
 r'l'l'lviii; to show himself to bo a party to the document: Smith v. Winter, 3 M. 
 i \V. ;iij9 ; Lawrence v. Hooker, 6 Bing. 6, Tho courts in England have, under 
 curtiiln circumstances, upon the application of one party to a suit, ordered docu- 
 ments in the possession of tho opposite party to be produced, for the purpose of 
 being stamped : Gigner v. Bayly ct ux, 5 Moore, 71 ; Jiowc ct alv. Howden, 4 Bing. 
 J:!0, note; Xcale v. Swind, 1 Dowl. P, C, 314; Bonsfidd et al v. Godfreii, 5 Bing. 
 418; Travis v. Collins, 2 C, & J, 625 ; Hall v. Bainhridgc et al, It L. J, Q. B, 289 ; 
 but have refused inspection of the title deeds of a party whose title is in dispute: 
 Pid-eriiig v. Noyes, 1 B. <fe C, 262. Now that a party mnj' bo examined orally as 
 If) all matters touching his own case, the doctrine propounded in the last case may 
 bcqtiostioncd: Lynch v. O' Hare, 6 U,C. C, P. 259; Horsmanv. Hori,man, 2 U. C. 
 L. J. 211, pel- Burns, J. Whatever jurisdiction the courts possess at common law 
 n» to inspection is not oflFected, except so far as extended by the statutes : Bliick v. 
 Gompertz, 7 Ex. 67; Doe d. Avery v, Langford, 21 L. J, Q. B. 217; Doe d. Child 
 tt d V. Roe., 1 El, A B, 279, 
 
 The section under consideration appears to correspond with Eng. Stat, 14 <k 
 15 Vic. cap. 99, b. 6, under which it waa held that the legislature never iut«ii,ded 
 
 m 
 
 
 H': 
 
276 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 107. 
 
 ; t« ,'r^ V 
 
 this Act a discovery might have been obtoined by Bill, or 
 other procouding in Equity, at the instance of the party so 
 ninking application as nforesuid. {y) 16 Vio. o. 19, s. 8. 
 
 to give ooiirtH of common Inw a power to coin/jel iliwoverif by n bill or ftnnlnr;ons 
 proceetlin<;, but to allow an iiinprclion, by one lititfntinjj party, of douiimcntH in the 
 cuatocly or undL-r tiie control of tlio opposite liti^fiint party, with certain rcslric- 
 tiona or limitniionH. The Intention of the Icfjislnturo was reduced to tliis— tlmt 
 inspection niit^ht be allowed wlienever discovery could bo compelled in i(|iiitv; 
 flimt V. Hewitt, 7 Kx. 'I'M; see also lini/nef ct ul v. Allhiinpn, 21 L. J. Q, li. cs; 
 Oa''<worthit\. Norman, Ih. 70; Wonllri/ v. Tfit North London Railwaji Co. L. \\.\ 
 C. 1'. 612, per Montnirno Smith, J. This was held to be the ley;nl intendment of die 
 Oct, thouirh it in nmro than possible that the actual intention of the hcijisjntiire 
 was to provide n more extensive remedy. The mischief to be remedied wns (lie 
 uecessity cxistinjj; for jjroeeedin;^ in equity, with its attendant trouble, cxpcibe 
 and delay, in order to support proceeding's at law. The remedy projier for siiili 
 a mischief is coinphle relief in one court. Such is the remedy which hns been 
 applied by tlie le;^islaturo under section 189 of this act. 
 
 (ff) It is impossil)lo to lay down with certainty any general rules as to wiun 
 Inspection will bo granted. " Tho whole rpiestion appears to be in a state of diiik- 
 ness and contusion ;" The Mafr/rcgor Laird, L. U. 1 Ail. it Kc. 307, ]>fr l)i'. Lu-li- 
 ington. An ntlidavit detailing such facts ua would sustain a bill for discovery in 
 ecpiity wiil, in general, entitk' the applicant to an Inspection of the docuiiHiilj 
 referred to in tlie athdavit : McCay v. Afii(/ill, 3 Ir. C. L. U. 83. Inspection of lit- 
 ters ord<'rcd where no copies had been kept, and the action was in whole or in |«irt 
 barred on tlie letters ; Price v. Harrison, 8 C. B. N .8. 617; Tho ('omincrciul IJantnf 
 Canada v. 77"? Orrat Wcntcrn liaili/'ai/ Co. 25 U. C. Q. B. 335. Ordered in an luiiim 
 for breach of promise of marriage : Stone v. Strange, 3 II. & C. 541 ; Chute v. Bkuwi-- 
 hamet, 16 Ir. 0. L. 11, Ap. ix. Hut not where tho ullidavit was that the promi.se, 'if 
 any," was contained in such letters: Jlamcrv. Sowerhy, 3 L. T. N.S. 734; only fir 
 fae aiinile of letters by photograph or otherwise ; Dave;/ v. Pcmherton, 1 1 C, IS. N.S, 
 628. Bo ill libel: I'errott v. Morris, 1 Ir. Jur. N. S. 334; but see Kinlatiw JJml 
 tag, 7 Ir. C. L, II. 1 ; McKcnzie v. Clark, 4 Prac. 11. 95. An agent was coniinHtil 
 to give copies of alleged private memoranda, which were made by him in tlie 
 course of bis employment: Llshop of Winchester y, Boivkcr, 29 Beav. 479; ?>' « 
 company suing a shareholder for calls was compelled to allow inspection of the 
 registry for sliures, &c. : Lancashire Cotton Spinning Co. v. Greatorex, 14 L.T. N>. 
 290. So a railway comi)any of their minutes relating to n servant, in an action 'iv 
 him for wrongful dismis.sal: Hill v. The Great Western Railway Co. 10 C. 13. N.S. 
 148. 8o a ship owner suing nn underwriter, was compelled to grant inspection d 
 documents in any way relating to the subject matter of the policy: Baijncrdd 
 V. Jiitson, 6 B. ct S. 888 ; see also Kellock v. The Home and Colonial Itisiiranct So- 
 cietg, 12 Jur. N.S. 653. So trustees under a composition deed compelled to alluw 
 creditors to inspect signatures to deed, die. : Andrew et nx v. Pell, L. R. 2 C. P. -jl. 
 So in an action by a consignee of goods against shipowners for damage sustained 
 in consequence of unseaworthiness of the ship, the court compelled in.speetion uf 
 certain surveys made on the ship in a foreign port, &c. : Daniel v. Bondet al, 9 C. B, 
 N.S. 7 1 1). So inspection of deed held by defendant for a lien : Owen el al v. Nickm 
 et al, 3 E. <fe E. 802. So in an action against a railway company for negligence, 
 inspection ordered of the medical reports, &c. : Baker et al v. The London and Sonlh 
 Western Railway Co. L. R.'3 Q. B. 91. An inspection of a document not granted 
 to a plaintifif on tho allegation that it contained a particular clause in support of 
 his case, where tho evidence of such clause was directly denied by the defendant; 
 Frewen v. The Incorporated Society, Z Ir. C. L. R. 118. Order for the inspection of 
 defendant's rent book refused in an action for illegal distress: Fitzgerald v. Chriii- 
 
 ^m 
 
 H. 
 
m.] 
 
 NOTICE TO ADMIT DOCUMENTS. 
 
 277 
 
 ADMISSION' OK DOCUMKNTH. (A) 
 
 iOS. (') Either party iiiny (_/) ciill upi)n llio diIht pirty, puti'.'s !'" 
 
 Klllllt (lllCII- 
 
 bv notice, (/••) to iidinit any |)ocaiiient, (/) saviii'? all jusr ',,'„ 
 
 MiM. 
 
 iniu. ft If. C. L. R. IHO. So plnintiff refused in cjcotnicnt for n forfeiture; liU'furd 
 tlul V, The IriAoxiire ComuvKniiiiiei-x, A Kl. «t II. 'A'l'.); Contir v. li'irinif, 2 ('. !<. II. 
 81 1 ; J'l/e V. /liitlerjiilil it al, 5 H. it S. 82!'. So rofiiscii where the ()l)i(K;t. is to enforco 
 p?ii;iliii''<: J'rilr/ult V. Smart, 7 C B. H25 ; see nlsr) BiiHork v. liirhn i-iUdu , 1 1 Vcs. 
 ;;;:;, ii'.it, a ilefetidaiit in ejectment l)roni^lit on a forfeiture ims i)e('n uilowet! iii- 
 ^pnitidii of till) leiiso under which ho chiinied ; Doe d. Child et ii> v. linv, I V.\. it H. 
 l',\l Till! piu'ty o|)|)osiny; tlio in»|ii!ction may answer tlio nppliciition i)y (h'nyinaf 
 the posJL'ssioii ()f the doiMiinents, thiit they relute exclusively to his own case, or 
 tii.it lie !■> tirivilei^ed frnni i)rodueinar tlieni: pee 7/.'// v. I'ltilp. 7 I'-x. 2:i2: /•'i>ri/inw 
 ./,(/ V. /.nn'Sfl ill, 10 Kx. 712; /'ri/rhftt v. S'maff, 7 C H. ti25 ; S/,„i-t v. Afnrier, 
 :, Miir. & (J. 2115; HoI/iukoh v. h'ifc/ihi, H I)c(J. M. & (J. 8S ; Cohmnn <t nl v. True. 
 inntut al, ;f If. »fe N. «7l: irW/c.// v. I'ide, 14 0. R N.S. fiiJH; or may shew part, 
 (nvi'i'iii:^ t'"' remainder, on an allidiivit that the \myt ('fjncealeii doi's not in any 
 way relate to tliu case of his o|iponent: JJintt v. Iltwilt, 7 Kx, 'I'M; liidl it a' v, 
 V'lide, 15 C. IJ, N, S. 851 ; and if the court collecrt from all the materials Ix'fore 
 ;liiiii that tho documents do not snj)port the case of the applicant, insjtection will 
 !'r rcfusfd : Vhurto'cd Bunk of Iiitlln, Anntrana and Uhliin v. liir/i, 4 H. A' S. 7;>; 
 Fflkiii V. Lord Ilcrliert d al, 30 L. .1. Ch. 7'.^8. "Any report or communication by 
 nil ii'^'i'iit or servant to his master or princi|.)al, which is made for the purpose of 
 !i-i<tiiii,' him to establish his claim or defence in an existin;^ litigation, is privi- 
 ii':;c(l, and will not bo ordered to be ])roduced ; but if the report or commuiiicn- 
 tiiin is made in the ordinary course of the duty of tho agent or servant, wlii'ther 
 liifiiru or after the comtnenccment of tho litigation, is not privileged." Woolley 
 V. The Xurtii London liailwuy Co. L. R. 4 C. 1". C13,/)er Brett, J. 
 
 I A) The law contained in tho followiuif sections i:^ one that has prevailed in 
 this I'rovince for rears. Its operation is by deliberate admission made bi-fore 
 triiil to di'^pense with tho more formal and expensive mode of proving the docu- 
 ments in (jiiestion. The object being to save expense, each party having an oppor- 
 tiinity of preventing, by timely adnns^-ions, the cost of pi'oviiig the documents 
 Iir.iiiiised to be given in evidence against him. The jiractice is one of a most 
 siliitiU'v nature, and in its application shotdil rather be extended than restricted. 
 ]"itli in Mn^land and in this Province there have been rules of court in sulistanco 
 tlio Mine as tho provisions of this act: Kules U. C. 5 & li of T. T. 'A »t 4 Win. iV. 
 'i.:n. H. 7, copied from Eng. Rules 6 A 7 of H. T. 2 \Vm. IV. ;{ H. & Ad. H'.i2: 
 iiiul Rule U. (,'. 28 of v.. T. 5 Vic. ; Cam. R. 32, copied from Eng. Uule 20 of 11. T. 
 IV. 5 B. it Ad. xvii. 
 
 founded upon the first 
 
 4 Wii 
 
 ('•) Taken from Eng. Stat. 15 A 10 Vic. cap. 76, s. 117. 
 I'f'iwit of the Common Law (Commissioners, s. 72. 
 
 ij) i e. In all cases of trials, nssessinont, or inquisitions of any khid, either party 
 way, itc. : R, O. pr. 30. 
 
 (Am a party calling upon his adversary to admit documents must serve the or' 
 (liiiaiT notice to admit and proceed as directed in 11. G. ])r. 2'J and ;>0: Alton. 
 Cliainbcrs, Sejjt. 22nd, 1860, per Burns, J. See the form prescribed in II. G. 
 pr. 29. 
 
 (') Av>i document. Th« rule of [yractice extends to every document which the 
 pirty proposes to adduce in evidence, and is not contined to documents in i-is 
 CMstody or control: Riitter v. Chapman, 8 M. A W. 388; Conner v. JUiIucfinn, 
 ' ' li'im. H. 220. The fact of the document wjl being in his possession works no 
 liiirdsliip upon his adversary, because in order to obviate any mischief or hard- 
 
 M mi 
 
 ?i 
 
 i 
 
 1 f Ifi iSai<:jJ 
 
 tttV.^^' 
 
|WW 
 
 l^} 
 
 278 TIIR COMMON LAW PROCEDURK ACT. [s. IfIR 
 
 exceptions, (w) and in case of refusal or noglect to ad- 
 
 f-liip aiisiti^ from tho didknilty of ncross to it, flic jti(l<r<> nt tlio trial lius power to 
 siiy that. Ili(! ilociiiiu'iit is not one wliidi tlio iiarty (iiii4;Iit ri'asoimbly to Ih; tiillcil 
 upon to ndniii,; liiilttf v. VhnjmMn, 8 M. it \V. It'.t'J, lur I'arlie, IJ. In once;!-.. 
 on ])laintiir payini^ to (Iffcndiint tho oxpcnscs of exaniininj^ a foreiu:n jiiili^iiicnt 
 nnd other ilocunicnts nbroaii, nn order was made for tlie defendant to puv ili.; 
 expenses of provini; tlietn at tlie trial, siieli jn-oof having been satisfaetoiy t(i llii; 
 judge, and 8o eertitied by liiin : Smith v. Bird ct uf, 3 Dowl. 1*. C. IJ) 1. Tlic iimo 
 tiee as to giving notice has been held to be inijjerative nnd to apply to all oasts. 
 whether the doeuinent jiroposed to be given in evidenee is jiu^ in issue oii ili.- 
 record oi- not: Spencer v. BaroiKjh, 9 M. & AV. 425. The fact that the ()|i;i(isi,o 
 party hail in jiositive terms refused to make any admission was iield not in tin? 
 least to dispense with the necessity of serving the noti(;e: Ih. l>iit the did lukj 
 were held ni'ither to apjily to a ease wiiere niieient records of a jnihlie naliuo 
 required not proof but explanation nnd translation: Ji'intard v. Smith, it id, lu .\. 
 it 10. 2i;i; nor to oi'iginal alliilavits in the Court of Chancery, which coidd only be 
 produced by nn ofiicer of that court : 76. 
 
 (ni) The "just exceptions" nre, among others, First. The sufiicieney of tli. 
 stamp: \"inir v. W'/iittiin/toii, 2 Dowl. N. S. 707. SWohd. Its ndmissibilitv in evi- 
 dence: J'/iil'lpn V. I/iii-ris, Ciu: & M. 402. 7'/iird. Its legal elfeet: VAV* v, 
 'J'.'ie London (Jus /,ii;lit Co. 1 V. & F. 340. The object of an admission utidcr \\'U 
 section is to disiieiise with tlie ju'oduction of an attesting or otiier witness, ac 
 qnninted with the handwriting to be proved. The party called upon to admit 
 sees the document, and does so for the i)urposo of ascertaining whether tlieivi; 
 any ground of objection to it. If he perceive an interlin"ati(Ui, either he elijecii 
 then, or it must 'je taken that he dishonestly declines to do so- for In tlie aiisiic; 
 of objection his opponent will not produce the attesting witness, who iiii^hi li! 
 nble to explain the interlineation. An admission, therefore, so far recognises tin' 
 general character and accuracy of tho document, that no objection can Hftcrwanls 
 be made to its reception on the ground of interlineation : Freeman v. S'.iinw''. 
 14 (i. B. 202; see also I'oolc v. I'almer, Car. & M. OH. The part}', win n served 
 with a notice to admit, iv.ay inspect if he ehoojcs. If ho nnike the udiiiission, 
 whether he inspect or not, he must bear tho consequences. His consent is an 
 Hrlmi> 'on that there is such n document as that in the notice described: Ihc l 
 Wrii/fit ct nl v. Smith, 8 A. & E. 255. And in some cases it may be an adndssieii 
 of fai'ts mentioned in the description of tho document, for instance, ncccptiuico of 
 a bill when tleseribed as accepted by A. H. Ac. : Wilkcx v. Hopkins, 1 C. 11. 73V; 
 llnnt V. Wise, 1 F. &. F. 445; Hawk v. Freund, Ih. 294; Chaplin v. Zrc//, it Ks, 
 bo\. Recent author't_> , However, seems to militate against this position : Pihjrm 
 ct al V. The Soiithitmf,;,:>i and Dorchester Jiiti/irai/ Co. 8 C. li. 25. Adnd-sidii.i iniul- 
 vertenlly made, may, i.i eertain cases, bo withdrawn by judge's order obtained I'ei' 
 that ])urpose: Fllon v. Ltrkiu.s, 5 C. & P. 885; but a mere notice of withdrawal 
 served upon the opposite party is not sufficient: J)oe d. Wdherell v. Bird, 7 C it 
 I*. 6. When a party is called upon to admit a copy, it involves tho power of see- 
 ing that it is a copy, that is, of seeing tho original: liiitfcr v. Chopmau. 8 M. * 
 \V. ;)'J1, per Alderson, I>. Hut an admission of a copy cannot under any eireuiii- 
 8ti,nces be taken as an admission of the original, a.ul whether the noiiee do or il) 
 not in such a case contain a saving of nil just exceptions, tho admission of the 
 copy will not entitle ]>laintifF to jtut in tho copy without first aocounling for tliu 
 original: Sharp,; v. JMinL et al, 11 A. & E. 805; see also Goldie v. S/nittlneor'h, 
 1 Camp. 70. ^'either does the admission obviate tho necessity of prod uiiny' the 
 document admitted at the trial: see Vaiw v. Whittinr/ton, 2 Dowl. N. S. ToT; 
 Lesslie v. Lciihj/, 5 (,t. S. 487. The admission when made is conclusive: Lau/jluj 
 v. The Firlof't .rford. 1 M. it W. 508. And when made for any one trial continue-! 
 tu be so for any future trial: Elton v. Larkins, 5 C. & l\ !J85; Doc d. ]Vc(hmth- 
 
m 
 
 s. 108.] 
 
 COSTS OF PROVING DOCUMENTS. 
 
 279 
 
 luit, (») tho costs of proving the Documents shall bo paid by 
 the party so neglecting or refusing, (o) whatever the result of 
 the cause may be, (p) unless at the trial the Judge certifies 
 that the refusal to admit was reasonable, ((j) and except in 
 cases where the omission to give the notice is, in the opinion Cosu. 
 of the Taxing Officer, a saving of expense, (r) no costs of 
 proving any Document shall be allowed unless such notice 
 has been given, (s) 19 Vic. c. 43, s. 165. 
 
 Bird, 7 C. «fe P. 6 ; sec also Hope v. Bcadon, 2 Ij. M. it P. SO."? ; see further Harm- 
 dowjh V. Orccnhongh, L. K. 2 Q. B. 6 ] 2 ; Wlkon v. Jinird, 1 !) U. c;. C. P. !)8. A viiri- 
 ancc in the description of a docuiTicnt not of a nature to niisli'iid, will not rclonso 
 tl:c party who niiikes an admission from his obligation: Fhid v. /''UuinJiiq, 
 ,1 Dowl. i'. C. 450; liittlcslon et al v. Cooper, 14 M. & \V. 8',>9. It does no'. ni)pefir 
 to be necessary to identify the document j)roduced at the trial witi; the ono 
 adin'tted: Doe d. Wriffht cl al v. Smith, 8 A. & E. 2(1'), per ('olerid<:fe.. J. But j)ru- 
 (liMiL'o will ^'enerally dictate the i)ropriety of beinyj prepared with sucli proof, or at 
 least of iiaviiig the documents that are to be procluced sij^jned or niarlicd by tho 
 party wlio maiio the admission: see C'la;/ v. Tlidckvuh, '.) (!. &, P. 47 ; Dec d. T'nidal 
 V. Roe, 5 Dowl. P. C. 420. A formal admission oidy should be relied on: Ilnlford 
 V. Ihujlm, !tl W. 11. 60. "Wiiere the notice culled on the defendant to admit the 
 antliofil;/ under which the docmnents were siy;tied, held that defendant was not 
 kmiul to do so, and had a riijht to defeat the whole notice, without peril of costs 
 in any event: Oxford, Worctskr andWolverhanqiton Railvmy Co. v. Saidamore, 1 II. 
 <i; X. 660, 
 
 ()i) To determine when tho party ne;j;lects or refuses to admit, it is manifest 
 lliat tlicte must be, as re<^ards time, some limit within whicli the admission must 
 Lc iiiiuie. No limit is specified in tliis act. The time nni.st be reasonable, con- 
 siik'i'ing the situation of the parties, »tc. ; Tiinii v. JJell/iif/.ilei/, 8 Dowl. P. 0. 810; 
 see also Car;/ v. Cumberland, 1 I'rae. 11. 140. Tho admission may be sij;;ned by 
 the attorney or by his managing clerk: see Taylor v. W'dlans, 2 B. &, Ad. 845. 
 
 [o) Not, it would seem, if the witness called to prove the document in his testi- 
 mony in cliief give evidence on any other fact tluui the genuineness of the docu- 
 ment: Strueey v. Jilake, 7 C. <fe P. 404. 
 
 (/)) If the party neglect or refuse to rfdmit, he must pay tho costs, though tho 
 verdict obtained be set aside, and though before the second trial the admission be 
 made: lewis v. Howell, 6 A. it E. 70U. 
 
 {<]) To entitle either party to the costs of proving a document under the old 
 practice, even after notice, refusal to ailmit and order, it was necessary for tho 
 jiid;;e to certify that ho was satisfied with the evidence. Now it is the rule that 
 the costs shall be paid, " unless the judge certify that the refusal to admit was 
 reasonable;" see Bay v. Vinson, 9 L. T. N. S. 723. If the document be one in- 
 admissible in evidence, it stands to reason that no costs can be nllowed: Phillips 
 V. Harris, Car. & M. 492. 
 
 ('•) Til.; exceptions thus created may, in some respects, moderate the rigor of 
 the old practice, which made it imperative in every case of a written document, 
 whelhor denied on the record or not, to give the notice before being entitled to 
 costs. How far in such cases the omission to give the notice can be risked with 
 safety, must be determined as actual cases arise for decision. 
 
 (») A party is oidy entitled to the costs if the document bo proved : Doe d. 
 htm v. Pelers, 1 C. & K. 279; Day v. Vimon, 9 L. T. N.S. 723; Rovhfort v. 
 
 it^^:^;^.ljE-U 
 
280 
 
 THE COMMON LAW PROCEDUllE ACT. [SS. 199, 20 
 
 Evdc (0 of t^9, (t) An affidavit of tlio Attorney in the cause, («) 
 adinissioua. qj hia < 'lerk, (v) of the due signature of any admissions made 
 in pursuance of such noticv, («') and annexed to such affida- 
 vit (x) shall be, in all cases, sufficient evidence of such admis. 
 sions. (^) 19 Vic. o. 43, s. 160. 
 
 900. (fl) An affidavit of the Attorney in the cause, (h) 
 survi'.c'irf" or his Clerk, (r) of the service of any notice to produce, (d) 
 
 Sedic;/, 12 Tr. C. L. Rep. iv. If the rule be nbuscd by the preparation nnd service 
 of a voluminous notice, the costs may 1 disallowed : fJdwinh v llie Great 
 Western liaihvay Co. 12 C. B. 419. Wliere plaintiff's attorney was in possession 
 of a probate of a will essential to the defendant's case, nnd on beinsj called on to 
 give an undertakins; to produce it refused to do so, and tlie defendant then warned 
 him that an exemplification of the will must be procnred at s'rent expense, it was 
 held that the defendant, who obtained the verdict, was notwithstnndinir, only en- 
 titled to the expense of an ordinarj- copy, as he mliflit have called on plaintiff to 
 admit a copy: Goldslone v. Tovey, I'jing. N. C. 2'74. 
 
 (<) Taken from Eng. Stat. 15 it 16 Vie. cap. 76, s. 118, 
 
 (m) Qn. If after admission there has been a change of the attorney who wt- 
 uessed the signature of the admission, would he not still be competent to maiic 
 the affidavit hero contemplated ? It is only reasonable th.it he should be. 
 
 (n) i. c. Some clerk connected with the attorney's office, whose duty it is to at- 
 tend to the business of the office, and who is himself personally cognizant of tiie 
 particular fact to be proved: see Tayhr v. \\l,llani, 2 L. A Ad. 845. 
 
 (i«) The admission may be either as to the whole of the documents specified in 
 the notice, or only as to part. In either case it may be indorsed on tiie nmiie, 
 In the first case, if indorsed, it may be in this form : " I hereby make the adiiiis- 
 sions of the documents specified in the within notiue as thereby required, saving 
 all just exceptions." In tiic second case, if indorsed, it may be thus; "I hereby 
 make the admissions of the documents marked numbers 1, 2, 3, G, «tc., speeitieJ 
 in the within notice as required therein, saving all just exceptions." The notice 
 should be examined to see if it contain a reserve of all just excujitions: see Chaplm 
 V. lev;/, 9 Ex. 531. 
 
 (x) The affidavit may be to the effect that on, Ac, A. B. etc., then and still be- 
 ing attorney for the defendant in the cause, did, in the presence of deponent, si;;n 
 the admissions annexed, and that the name A. B., set out nnd subscribed to the 
 admissions, is of the proper handwriting of the said A. B., and that the admissions 
 were made in pursuance of the notice annexed, upon which the admissions are 
 indorsed. 
 
 (v) In a case where defendant objected to the jjroof of admissions which had 
 in fact been made, nnd idaintiff was in conscciuencc non-suited, a new trial was 
 granted, on the ground of breach of faith, with costs to be paid by dofenilant: 
 iJoe d. Tmdal v. Roc, 6 Dowl. P. C. 420. 
 
 {a) Taken from Eng. Stat. 15 A 16 Vic. cap, 70, s, 119, 
 
 (i) See note u to preceding section. 
 
 {c) The affidavit is only admissible when made by the attorney or clerk: Pal 
 tenon v. Aforrisou, 17 U. C. Q. B. 130. 
 
 (d) The ordinary notice, lliough served for a particular assize, is good for subse- 
 quent assizes, without renewal : J/npe v. JJcadoii, 2 L. i\I. »t V. 593. A notice to 
 
200.] 
 
 NOTICK TO PttODUCE. 
 
 281 
 
 in respect to which notice to admit has been siven, (e) and of ""'''''' t" 
 the time when it was served, with a copy of such notice to 
 
 produce a deed at the sessions held sufficient for the assizes : McDonnell v. Conry, 
 Ir. Cir. Rep. 807. It may be in form as follows : "Tiike notice, that you are hereby 
 required to produce to the court and jury, on the trial of this cause, {here upccify 
 tht ji'irticuiar dociimcnh) and all other documents, letters, books, papers, or writings 
 wliatsoevcr, containing an entry, memorandum, or minute, or other matter in anj'- 
 \;\<p lolating to the matter in question in this ca ise." The notice should be pro- 
 perly styled in the cause : Harvey tt al v. Morgan el al, 2 Stark. 19 ; but is not, for 
 adi'i'cct'therciii, nen rily bad: Zawrmcev. Clark; 14 M. tt \V. 250. The words 
 "iill and evil' . '' M' w i-itten by plaintiff to defendant, and relating to the nuitters 
 in (li-pute in ii-c iietion," were held sufficient to let in secondary evidence of a i)ar- 
 ticuiar letter, of which the date was not f-pecified : Jacob v. Zee, 2 JIoo. it R. 33 ; 
 }[frr'',(tnl\. Jlniisrr ctal,Jb. 'j'.»2; and "all accounts relating to the mutters in ques- 
 tion in this cause" sufficient to let in a particular account, though no date specified: 
 r^,via-xy.Cn.itanrc,Ih. ]''■*; i it France V. Lwy,U. S: M. oil. Notice to produce 
 a k'tlcr purporting to enclo.-i' an account, sufficient notice to produce the account: 
 }:ii(in!l d al v. Dritcc, 9 W. R. 536. lint a notice to ]iroduce letters from plaintiff 
 to A. not sufficient to require letters from A. to the iiiainti'f : Coombs v. The liriKiol 
 and h'/dcr Jiailwny Co. 1 F. & ¥. 2(i(5. A notice to produce "the several letters 
 written in the year 18",?'' i :■ too general: A/icrrty. ^Fapnire, Arm. JIac. tt Og. 89. 
 It nuist bo served a r^ isouat'ic time before trial. l>ut there does not apjjcar to be 
 !>nv indexible rule as w ti: i^ Trift v. Johnson, 1 Moo. tt R. 'J59 ; AV v, J'Jllkombe, 
 Ib'.'li]') ; George v. Thompson, 4 Dowl. P. C. 056. The night before the trial not 
 ;;ener«llv reasonable: Jo7ies v. Curry et al, 8 Ir. L. R. 257; Sims v. Kitchen, 5 Esp. 
 4ti; F(j4er\. Pointer, 9 C. «fe P. 718; Aikimv. Meredith, A: Dowl. 658; Hoimrd v. 
 WiUii-iins, 9 M. tt W. 725. Contra, if documents shown to be in possession of 
 the attorney : Lloyd v. Moalyn, 2 Dowl. N.S. 476; Leaf y. Butt, Car. tt M. 451 ; 
 B'jrve V. Harvey,' 2 Moo. tt R. 84; Gibbon.s v. Powell, 9 C. <fe P. 634. Notice 
 ferved on the day of and within one hour of the trial held too late : A'ush v. Bn.^ih, 
 5 U. C. C. P. 300. It should be served on the attornc}- as agent: Catcs v. Winter, 
 3 T. W. 306 ; Ilonsenan v. Roberts, 5 C. it P. 394. Or on the party himself: Hur/hes 
 T. liiuhl, 8 Dowl. P. C. 815. Where attorney changed, notice Bi-rvod on the first 
 attorney before the change sufficient: I)oe d. Martin v. Martin, 1 Moo. tt R. 242. 
 8orviec upon the wife of defendant's attorney late in the evening lufore trial held 
 sufficient: Doe d. Wartney v. Grey, 1 Stark. 283. So service by dropping tiiK 
 iiotiee in the attorney's letter box late over night: Lawrence \. Clark, 14 M. it 
 AV. 250; see also Leaf v. Butt, Car. tt M. 451 ; Meyrick v. Woods, lb. 452. Ser- 
 vice on Sunday not good as a service on that day: Hughes v. Jiudd, 8 Dowl. P. C. 
 31.1. Xo objection to service after commission day or after conniiencemeiit of 
 tr'.ii', if sufficient time: K^titrm it al v. Jcfree, 2 C. tt K. 442. Three days' notice 
 tnprfi(hice letters used in a chancery suit si.v years before the trial held sufficient: 
 S'.iiiw V, Buchanan, 10 A. tt E. 598. So two days' notice to the attorney, the 
 party iiiniself being abroad: Bryan v. WagslaJf,2C. ikl'. 126; Firkin v. EduHmh, 
 fC. <t r. 478 So four days' notice to let in evidence of letters written eigiiteen 
 years back: Drabble v. Donncr, R. it M. 47. But a few days' notice to produce 
 a letter written by a party to his firm at Bombay not sufficient: Hhren.yiert/er v. 
 Aiiilo-xnv, 3 Ex, 148. If document he in court at the time of the tiial, a Udtice to 
 produce it forthwith is sufficient: Dwycr v. Collins, 7 Ex. 639. The (juestion as 
 to what is a reasonable time seems chiefly to rest with the judge of assize: see 
 J'nnn v. Mills. 4 r. C. Q. B. 366 ; McCrae v. Osbonte et al. K. T. 7 Vic MS. R. tt 
 H Dii,'. "Notice to Produce," 5; Robertson v. Boulton, 11. T. 6 Vic. MS. lb. same 
 title, 6. 
 
 : M iS i 
 
 befi 
 
 [f] This section impliedly sanction;! the rule that a notice to produce served 
 
 I documet 
 
 ore a notice to admit, is such 
 
 2at as may be specified iu the latter, and 
 

 
 282 
 
 TIIS COMMON LAW PROCEDURE ACT. 
 
 
 [s. 201, 
 
 Ki^lit (lays' 
 iiutitre (jf 
 
 produce annexed to such aflBdavif, (/) shiill bo sufilcient evi- 
 donee of the service of the original of such notice, and of tho 
 time when it was served. ((7) 19 Vic. c. 43, s. 1G7. 
 
 NOTICE OP TRIAL OR OF ASSKSSJIKNT OF DAMAGES, AND COUSTEn- 
 JIAM) TIlliREOF. (/i) 
 
 SOI. (0 Eight days' notice of trial (J) or of assess- 
 
 be followed with all the conset^uenccs attending notice to admit when given as to 
 ordinary documents. 
 
 (/) Tlie nflidavit may be to the effect, 1. Tliat deponent did on &c. between 
 the hours of «tc. serve A. B. &c. with a notice to produce, a true copy of wliich 
 is annexed, marked A. by delivering tlie same to, &c. ; 2. Tliat deponent did, |iur. 
 suant to section 2(I0 of the C. L. P. Act, serve {htre state service of notice to ndnut] 
 a true copy of whicli is annexed, marlicd B. ; ;5. Tlmt tlie notice to proiUiee men- 
 tioned and referred to in tlie notice to admit, is the notice to produce, a copy of 
 wliich is annexed, marked A. as aforesaid. 
 
 (f/) It is not declared that proof of service of the notice to admit may be by 
 afliduvit. It is for the judge at the trial, before admitting secondary evidence, to 
 aecide whether or not tiie document produced is the document called for, if there 
 be any dispute as to the fact: Fronde v. Ifohljs, 1 F. it F. 612. The refusal to 
 produce not only has the effect of allowing the production of secondary evideneL-: 
 Dii-i/cr V. Collins, 7 Ex. G30, but the farther effect of preventing the jiarty liim- 
 self from using the document to vary or contradict the secondary eviiiencc; Ike 
 d. Tho)iifimn v. Hodf/non, 12 A. tt E. lo5 ; Edmonds v. ChaVis ct al, 1 C. B, 4i:i; 
 2]f<»il(/oiiicrii ap. V. Boyce resp. 1 Cr. & .l)x. C. 0. 422; J>i re Murpluj, 2 Ir. Leg. 
 Hep. 16:). ■ 
 
 {h\ It is very proper the court should see that a wi'itten notice of trial is served 
 giving such infdrmntion as wr)uld satisfy any reasonable person that it \va? in- 
 tended tobeactitd upon: Fennv. Oreoi.'llL. T. 11. 17<>, yjcr Lord Caini)bcll, ('..!.; 
 and that some period should be fixed as constituting a reasonable notice, insteiid 
 of leaving the reasonableness or unreasonableness of it to be detevniined by tlio 
 circunistances of each jiarticular case; see Li/initn v Suarr, it U. C. C. I'. Of. 
 \Vliere no notice of trial has been given, defendiint is not entitled to his costs nt 
 preparing for trial: Cooper v. Boles, 5 II. & N. 188; Curtis v. Plaft, 3.". L. J.C.I'. 
 255. Kor in such case is plaintiff so entitled : Freeiiimi et al v. Springhwn, 14 C. li. 
 N.S. .11)7. 
 
 (;) Taken from Eng. Stat. 15 tfe 16 Vic. cap. 76, s. 97. Founded upon the iirs' 
 aeport of the Counnou Law Commissioners, section 70. 
 
 (/) The intention of the section as regards time is that no notice for a loss 
 pe riod than eight days shall be good. As to computation of time, see Vrmmm 
 V. Shuerl, 2 Prac. R. 122 ; The Bufalo and Lake llnron Railway Co. v. Brnnhhituh, 
 II). 126 ; Ca/laghan v. Baines et al, lb. 'A4; Clark v. Waddell, lb. 145; rhillij..i\: 
 Merritt, lb. 233 ; Cameron v. Cameron, lb. 259 ; Cuthbert v. Street, 6 U. C. L. •!. -''■ 
 Short notice of trial means four days' notice, first and last days inclusive: II7//mws 
 V. Lee, 2 U. U. C. P. 157. But plaintiff may by his conduct relieve defendant frum 
 such an undertaking: see Provident Permanent Building and Investment SoMv 
 V. MfPherson, 3 Prac. R. 96. As to notice of countermand: see section '2'i'i. 
 There is no settled form of notice made necessary. It will be sufficient if it ill'' 
 prise defendant with certainty that ])laintiff means to proceed to trial, and clearly 
 inform him when and where the trial is to take place ; Ginger v. Pi/n-nft, 5 D. & 
 L. 554 ; Cory et al v. Hol-wn, 1 L. M. & P. 23. The terms of the notice will at 
 the hands of the courts receive a common sense construction. The courts will 
 not give way to captious objections or stupid mistakes in favor of a defendant, 
 
g 201.] NOTICE OF TRIAL OR ASSESSMl^NT. 283 
 
 ment (^0 (.the first and last days being inclusive) shall be*!''.'.'*'"'" 
 
 who (.'ither pretends to misimdorstnnd or will not understand wlint nny ronson- 
 a!)li' mail in!;;-ht understand from the words of the notice served upon liim. In a 
 ri'cuiit (Mse very stron-^ language was used in referc-nee to the conduct of a defend- 
 ant wlio so conducted himself. Coleridge, J., " As to the affidavit that the (k'fend- 
 ant tjL'liovcd the notice of trial was intended for Easter Term, 1857, I say, I not 
 oiilv disbelieve it but I think it one of the most infamous falsehoods ever presented 
 to a court:" Fcnn v. Oreen, 27 L. T. R. 170; see also Grn/iam v. Brcnnim. 11 !r. 
 C. L. 11. Ap. xvii. If notice be clearl}' irregular or insufficient and not waived, tho 
 verilict may be set aside: WlUiams v. II illiatns, 2 Dowl. P. C. 3,")0; IkiithitU v. West, 
 1 D &. L. r)99 ; The Grand Rivet' Navigation Co v. WilkcH, 8 U. C. Q. B. 24',). ]'.ut 
 this Is no ground for refusing to try the case: B^irnc v. Hnr/cni, Ann. iliie. ifc Og. 
 17(1. A notice in a suit against two defendants, served with tlie name of only one 
 tlcfcnilmit, held a nullity : Doe d. Read v. Fatemon el n/, 1 T'rac. 11. 43. But notice of 
 tri.il ill a county instead of united counties is a mere irregularity : 77ie t'oi/iniercial 
 Bunk 'if Canada v. Lee, B U. C. L. J. 21. if from the misreading of the notice, or 
 fi'oiii any similar cause, there be gross and palpable negligence on the part of tho 
 attorney or his clerk, the court will not, it seems, interfere, but leave dt'fi'ndant to 
 hi-i I'i'nii'ily by action: Xaxh v. Swinhurite, 1 Dowl. N.S. Ifti). Tho notice, though 
 irrcijular if not calculated to mislead, may be waived if defendant lie by without 
 takiii'i olijcetion : Jkll v. Graham et al, 2 U. C. (2. B. 37. Tluis a notice naming 
 I'Vid.'.y, I'.Hli May, instead of Friday, 18th May, though irregular, cannot avail 
 dilViKlant uidess he heforet\\Q trial give notice of objection to plaintiff' ., attorney: 
 (.'■■r'Inii. v. C/rr/hoyn, j U. C. Q. B. 171. But the mere retaining of the ii'i'cgular 
 iioiiccis not itself a waiver of irregularity, as defendant is not bound to reliirii it: 
 il'ijidini V. Monfi/H, t) Dowl. 1*. C. 547; s. c. intitled ]>i(jnani v. IhhuUon, 3 JI. & 
 W. 4ol ; Wood V. /lardinr/, ;? C. B. 9ti8. The waiver eonsisis of the retention and 
 fiiiliu'c *i) t.die objection within proper time: Brown v. Wild/iore, 1 M. & (i. 276; 
 ]'w-,'A v. FL^/ier, 4 M. <k (i. 814 ; Bel', v. Graham et al, 2 U. C. Q. B. 37 ; Smior v. 
 Mfhii'iii (t al, lb. 93. • Eight days held not to be too great a delay: Andfrmin. v. 
 Ciih'er ct al, 3 I'rac R. 30(3. Defendant by his conduct, such as nppi'aring at tho 
 tnal of the cau>e or apjilying to strike it out of tho cuise list, or obtaining a rule 
 for ft !i|ic(>ial jury, may be taken to ha\'e waived irregularities in the notice': iMe 
 J. Antrohas v. Je/ixon, d al, 3 B. it Ad. 402; Yonni/e v. Fisher, 2 Dowl. N.S. (137; 
 Jlcms/nrd ft al v. Gedd's. L. R. 2 t\ 1'. 283; Waldron v. Fan-oil, 8 Ir. C. L. R. 
 A|). 1. ])iit iin offer to rcfir the cause to arbitration is not such a waiver: Grand 
 Hirer Narijatioii Co. v. WdkeK, 8 U. C. (I V,. 249. It has been held that a 
 notice of trial in an action against two defendants, served with the name of one 
 oiiiy llicrcin, was a nullity : Doe d. Read v. Fattrsou et al, 1 I'rac. li. 43 ; and therc- 
 I'oie eonld not be waived. 
 
 (/■) A notice of trial served instead of n notice of assessment has been held a 
 fatal (ilijictlon to an assessment of damages, which was in eonseepience, with all 
 !^iil;i'(|iuoit proceedings, set aside: Billint/s et al v. Jieid, 3 O, S. 73. But where 
 tliiie wvre issues in fact and in law, a notice of trial only has been lield sutHcient 
 to I'naljje plaiiitilFto assess contingent damages: Davis v, Ihtvis, M.T. 6 Wm. IV. 
 .1/.S. K. it n. Dig. "Notice of Trial," 7; see further Thoinimm v. Slianle-i, 4 Ir. 
 C, b. u. ril7. And where the notice was to try the issues and assess damages, 
 and there were i'l fact no issues on the record to bo tried,, the notice as to tho 
 as<e^;-iMerit was considered regular: Gamble et al v. Fees, 7 U. C. Q. B. 4otJ. Where 
 the last (laj- for serving the notice of trial was also the lust day for j)leadiug, a 
 notice Served on that day in anticipation of a plea, was held good, though tho 
 pKa Was not filed tiil the following morning: Loivrii v. Jiobinson, 11 Ir. L. 11. 67 ; 
 L'uilsa;/ V. Ihii'ling. F>. 39; see furtlu-r Farrell v. Far/an, F>. 70. But held that 
 nitiec (if trial of a Queen's Bench suit in a county court could not be given by 
 iriiicipafion: Riach et al v. Hall, 11 U. C. Q. B. 35(3 ; Young et al v. Luird, 2 I'rac. 
 
 16. 
 

 I •■ 'f 
 
 iT 
 
 284 THE COMMON LAW rROOEDURE ACT. [s. 201, 
 
 fi;iven, (J) and shall be sufficient in all cases, (m) whether at 
 
 [l) It is not sufficient to leave the notice at an attorney's offiou by putting' the 
 same under the door: Orand liivcr Navigation Co. v. WilA-en. 8 U. C. Q. B! 2.)lt. 
 It must be shown tliat it was left with some person in the office and doing biisi. 
 ness there: Brewer v. Bacon, 5 O. S. 343. Therefore service on a houseivCt'jKT of 
 the office is insufficient: FedcUe v. Pratt, 6 M. & Gr. 950. In such oases no iiolicu 
 of an intention to move against the verdict is required. The verdict may bf at 
 aside witliout an affidavit of merits: CoHHumcm' Oas Co. v. Kisnock, T> U. C. (j. B, 
 542. Service on defendant himself if he liave an attorney is irregular: Ferriev. 
 Taininliill, Dra. Rep. 340. Notice if regularly served on tlie attorney will bu 
 good, thougli the attorney die before tlie trial, and particularly if plaintiff havu 
 no knowledge of liis Ucath: Ashlei/ v. Brown, I L. M. & 1*. 4r)l. 'Where iiotiicof 
 assessment iiad been sent to the slieritf for service, and was returned by biiii t* 
 the ])hiintiff's attorney with tlie following indorsement, " Received a copy of the 
 •within for defendant," signed b\' " E. & G." attorneys, in the handwriting of (i,; 
 and for the plaintiii it was shown that E. & G. were constantly in the iiabit of 
 accepting services for det'endant, but G. stated that he only consented at the 
 bailiff 's request to hand such noti(;e to defendant us soon as ho should see liiin, 
 and that the indorsement was intended, not as an acceptance oT service, hut as 
 showing a willingness to hand the notice to defendant; but there was neitbi;r a 
 denial tliat E. tt G. were in the habit of accepting services for defendant nor an 
 assertion that tJ. told the bailiff what he intended by the receipt indorsed; hddi 
 sutiieient service: F.ulledgc v. Thompson, 1 Prac. 11. '275. If defendant do nut 
 defend by attorney, notice must be served on him personally. Even a reqiiwt 
 by him that the notice should be put under his door has been held to be no sub- 
 stitute for personal service: Fri/ v. Maim, 1 Dowl. P. 0. 419. Service 'jy taking 
 tlie notice to defendant's liouse and throwing it over liis fence into his yard, tell- 
 ing his son, who was present, that it was a notice of assessment for his futlier, .ind 
 ■where the son refused to have anything to do with it, and where the father, who 
 was absent from home, knew nothing about it until after the assizes, has been 
 held to be clearly insufficient: McGuiu v. Bcnjantiu, 1 Cham. R. 142. Where 
 8ervi(!e by mail is agre(Kl upon between the attorneys, the time counts IVoin the 
 time the paper is mailed, and not from the time of its receipt: Rohif'ni v. Arhiith- 
 nott, 3 Prac. R. 313. The paper, in the event of loss or miscarriage, is entirely at 
 the risk of tlie attorney to whom sent: Ih. A notice of trial, when allowed to bo 
 fixed up in the office of a deputy clerk of the crown, can only be fixed up in the 
 office of the county in which the action i.s brought; Chaste v. OiUnoar, MS. 
 Q. B. 604. Notice can only be fixed up in the jjrincipal office at Toronto when 
 defendant's attorney, residing in Toronto, has neglected to make an entry of Ins 
 name and place of business, as directed by R. G. pr. 136, or if resid'im' out of 
 Toronto, has neglected to appoint and enter the name and place of business nf 
 his a;,a'iit In Toronto, as directed by R. G. pr. 137. These rules may be IkM 
 to apply to the case of an attorney being defendant in person : see Ihi'J; -;' 
 Upper Canada v. Robinson, 7 U. C. Q. B. 478. Tliere may be a special a^'i-noy 
 constitutet, for the purpose of service of papers: Smith v. Roe, 1 U. C. T/. -J. N.J'. 
 15(5 ; Babji v. Langlois, lb. 2t)0. In practice, when plaintiff's replication or other 
 pleading is ia denial of defendant's pleading, the notice of trial may be served ,it 
 the same tino' as the replication, and without wtiiting for the joinder: R. G. Pi". 
 S^. A inamiging clerk in an office has ) :)wer to bind his principal by aee('|>till^■ 
 a notice of tiial as of an earder date than it was actually delivered, and io will he 
 binding upon all parties unless the principal promptly repudiate the aeeeptmux' 
 and give notice thereof to the opposite pariy : Orr v. Stabback, T. T. 3 o: 4 \k'. 
 Jf& R. <fe II. Dig. "Notice of Trial,' 16. 
 
 (wt) It does not seem that this section is intended to apply to trials by 
 record, where tlie party giving the notice is the party to produce tlu; reoonl. 
 There is no analogy between notice of trial in ordinary cases where issues iu tatt 
 
S. -02.] COUNTERMAND OF NOTICE OF TRIAL. 286 
 
 Jjar. or nt Nisi Prim, or at the County Courts, (n). 19 Vic. 
 c. 43, s, 146; 8 Vic. c. 13, «. 29; 2 Geo. IV. c. 1, s. 36. 
 
 203- C'^) Unless otherwise ordered by the Court or a 
 
 nrp to be tried the obje . being to give defendant time to prepare for his defence 
 and a trial by record wiiere the defendant has nothing for "whic'v to prepare. And 
 tiiurufore two days' notice of trial by record lias been held to be sutl^icient: JIop- 
 l-hi. V. Ddfif/clf, 1 L. M. & r. 541. But a notice on Saturday for Monday has been 
 lifld iiisiitlicient, as the days contemplated are business days: Maf/nirc v. Kin- 
 (,iiri>, '21 L. J. Ex. 2ti4. R. G. I'r. 35, which is as follows, appears to ?^it the 
 doiibis iit vest; "On a replication or other pleading denying the existence of a 
 ndud ideiuled by tlie defendant, a rule for the defendant to produce the record 
 bliall not be necessary or used, and instead tliereof a four daj's' notice shall be 
 tuhstitiited, rei|uiring the defendant to produce the record; otherwise judgment." 
 Tiiouu,ii a case be made a rvnumd at the assizes, a fresh notice of trial appears to 
 lie iiecwsary : Uahm v. BUson, 4 Bing. 414. Contra, where the cause is made a 
 rcmaiiel from one sitting to another in London and Middlesex : Hum v. G')r<;, 6 B. 
 & C. 125 ; Claudd v. J'rhice, L. R. 2 Q. B. 406 ; Cawley v. Knowhn, 16 C. B. N.S. 
 luT. And so if a certain day be fixed by the court for the trial of the cause, and 
 it does not take place on that day: Ellis v. Truster, 2 W. Bl. 798. Unless, per- 
 Imps, when postponed or continued: Sed qu. see Burgess v. Royle, 2 Chit. R. 
 22'i; Furben \. Croio, 1 M. & W. 465; Wi/'itt v. Slocken, 6 A. & E. 80-3; Stiep- 
 krd V. Butter, 1 D. <fe R. 15. Where plaintiff's proceedings after notice were 
 stayed by an injunction obtained by defendant, held that so long as it remained 
 ill i'lirie tlio proceedings were stayed, but that when it was dissolved the parties 
 wi'ie in slatu quo, and plaintiffs at liberty to proceed in the action without a fresh 
 notice: Sloclcton and Durlington Raitwaij Co. v. Fox, 6 Ex. 127; Clavdct v. Prince, 
 L. R. '2 Q B. 406; overruling Jocks y' Mayer, 8 T. R. 245, and Ellis v. Truster, 
 ■1 W. lil. 798, and distinguishing Cawley \\ Knou-les, 16 C. B. N.S. 107. A fresh 
 notice liaa been held necessary though plaintiff has entered into a peremptory 
 liiidtrtuking, because, notwithstanding the undertaking, he may decline to try the 
 CMse: Monk v. Wade, 8 T. R. 246, note; Sulsli v. Cranbrook, 1 Dowl. P. C. 148. 
 \Vlii'n jjroceedings having been stayed until the costs of a former notice have 
 beiii paid, the defendant, though called on, neglects to tax his costs, the jdaitititf 
 will be allowed to serve a fresh notice of trial upon giving an undertaking to pay 
 the costs of the former notice witliin such lime after taxation as the court may 
 direct: O'Brien v. Chadwick, II Ir. L. R. 33. 
 
 ('0 Anciently all causes prosecuted in court were tried at the bar of that court. 
 In course of time this practice was found to bo highly inconvenient both to the 
 C"iiit iUhl to suiti "s. To iiie court because of the i)ressuro of business, and to 
 Miitiirs because of the necessity of travelling from all parts with witnesses to the 
 liliuo where the court was held, then in ')ne fixed place. Ilcnce a new ])ractice 
 v.as originated, which was to continue the suit from term to term provided the 
 Justices in Eyre did not first come to tiie county where the cause of action arose, 
 aiul who, upon heir arrival, had power to try the cause, and relieve tiie court in 
 4«'c— administering justice as it were at every man's door. When justices in 
 Eyre were superseded by justices of assize, a power was conferred upon the hitter 
 by their nisi prius commissions to try ail causes. From that time the frequency 
 't trials at bar began to decline, and pt jiresent the\' can only be had in cases of 
 :,i't'at ditliciilty and importance. It is discretionarj' with the court to grant or 
 rtfuse a trial at bar. If granted, a special jury must be .summoned for the occa- 
 -lon, and no',ice of trial must be giveii <o the clerk of tlie crown and pleas of tbe 
 Court before giving notice to the opposite party: R. G. Pr. 37. 
 
 («) Taken from Eng. Stat. 15 »t 16 Vic. cap. 76, s. 98. Founded upon the first 
 report of the Common Law Commissioners, section 70. 
 

 2S6 
 
 Four tlays 
 lliitirc (if 
 
 COUIltLl- 
 
 luauU. 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [S. 202. 
 
 Judfie, or by consent, a countermand of notice of trial or as 
 Hessment (p) shall be given (y) four day,s (the first and last 
 days being inclusive) before the time nicntiunod in the no- 
 tice of trial or assessment, (?■) unless short nutiue has been 
 given, (s) and then two days, both inclusive, before the time 
 mentioned in the notice. (<) 19 Vic. c. 48, s. 1 17. 
 
 (p) Semhle, n notice of trial or of assessment inny be coiihtcrmandec], tlioiio-h a 
 rule to set aside the notice has been obtained witli a, stay of proceedinijs: Mullmt 
 el al V. Ford, 4 D. & L. YCS. The countermand may bo iii this form: "Take 
 notice that I do hereby countermand the notice of trial given in this cause." 
 
 {q) Given, See note I to preceding section. 
 
 (r) It is necessary to observe the peculiar wording of this section. The coun- 
 termand "siiall be given four days before (he time mentioned in llie notice of trial 
 or assessment." It follows that if the cause be entered and made a remanet, tliero 
 cannot be any countermand of noti(!e: Tcnipany v. liitjhy et al, 10 Ex. 47G; but 
 see SuUi/ v. Noble et al, 1 II. «fe C. 809, 
 
 (.?) Tiie expression short notice of trial, or short notice of assessment, shall be 
 in nil cases taken to mean four days' notice: R. G. pr. H4. A defendant who 
 obtains time to i)lead on the "usual terms," is bound to accept, sJiort notice of 
 trial: Senior v. McEwen et al, 2 U. C Q. B. 95. The conditions, however, are iu 
 general expressly stated in the rule. If the rule be on condition of " talking siiurt 
 notice of trial," defendant will not be thereunder obliged to talvc short notieo of 
 assessment: Wrii/lit v. Mcl'herson et al, 'A U. C. Q. B. 14.5 ; see also Stevens v. PtU, 
 2 Dowl. R C. B.').') ; but see Wiiliams v. Lee, 2 U. C. C. P. 1.57. It is therefore pru- 
 dent for [daintitl'to see the^e further words added, "or of assessment of dam<ujiKn 
 case such notice shall be necessary :'' Wright v. McPherson, 3 U. V,. Q. B 145. Tlie 
 words "short notice, Ac, if necessary," deserve attention. Where these words 
 are used, defendant is not bound to take short notice if not necessary, or if plain- 
 tiff has needlessly delayed giving the notice: Nicholl v. Forshall, 15 L. J. ti. C, 
 2('3; Drake v. /'ickford, 15 M. it W. (j(»7 ; Dignam v. Ibhotson, 3 M. & W. 431. 
 And yet in a case where the Mlaintitf took five days to join issue, and then gave 
 short notice of tiial, it was held sutHcient: Flowers v. Welch. Ex. 272; see fur- 
 ther Uynie v. Jones, Bl. D. &, O. 40 ; Woolley v. Aldrilt, 17 L. T. N.S. 120. So tlie 
 words, wlien used, "short notice, Ac, if necessary, for the next assizes at," ic, 
 which restrict defendant only as to a particular assize. If plaintiff neglect to go 
 to trial at that assize, defendant becomes entitled to the usual notice for any sub- 
 sequent assize: Slatter v. Painter, 8 M. & W. 672; Diynam v. Mostyn, 6 Dowl. 
 P. C. 547; see also Abbott v. Abbott, 7 Tuunt. 452; White v. Clarke, 8 Dowl. P. 
 C. 730; Leivis v. ILiy, 4 Jur. 579. Plaintiff can easily avoid the effect of sucli a 
 restriction by having added to the former words the f(dlowing: **or at any fr.tiire 
 assize" If a party avail himself of the terms of a short notice of trial, he caimut 
 afterwards countermand it: Doncaster v. Cardwell, 2 M. & W. 390. 
 
 (/) Before this act it was held that in computing the time for short notice d 
 trial the first day was exclusive and tlie last inclusive: Looe v. Armour, 'Y.T. SA' 
 4 Vic. MS. R. & II. Dig. "Notice of Trial," 5; but it has been since lield tlwt 
 the first and last days are inclusive: Williams v. Lee, 2 U. C. C. P. 157. Two 
 days' notice of countermand are declared to be sufficient, but it is presumed that 
 these days must bo business da^-s, and that a notice on Saturday for Monilay 
 would be insufficient: Ease v. Macgregor, 1 D. <fe L. 583. The notice of counter- 
 mand, like the original notice, must be served on the defend ant's attorney, wlitu 
 he has appeared by attorney, and not on himself personally: Margettson v. A'uiA, 
 8 Dowl. 388; see further note I to section 201. 
 
203.] 
 
 RECORDS AT NISI TRIUS. 
 
 NISI TRIUS RECOHIJS. 
 
 287 
 
 303« (") ^^ ^■^i^ Superior Courts, the record of Nisi Nisi rrius 
 Pritis need not be sealed, but shall be passed and signed by imi i„. 
 the Clerk cr Deputy Clerk of the Crown in vshosc office the 
 same is passed, («;) and io Country causes shall be entered 
 
 («) Taken partly from Eng. Stat. 15 A 16 Vic. cop. 16, s. 102, nnd partly from 
 our own law, and so far aa taken from Eng. C. L. 1*. Act, founded upon the tirst 
 report of tlie Common Law Commissioncra, section 71. 
 
 (i) Tlic adaptation of this section to some extent to the correponding section 
 (.f lliL' Eiig. C. L. 1'. Act iins led to a change in our practice, wliich was tlio intro- 
 (liirtiiin into this Province of the Englisli practice as to making up and delivering 
 piipt/r and issue books : U. G. pr. 33. Tlie issue book is a transcrij)! of tin; pload- 
 i;ii;s, witii the dates of pleading and the order when pleaded: Worthinijton v. 
 ]\iijlaj, 5 ])owI. P. C. 2<it). It conchides ordinarily with the words, "therefore 
 let a jiii'V," ifec. : Form thereof II. G. pr., Seh. No. 1. But when it is intended 
 tinkferiiiine questions raised, b}- consent a dill'erent form is made necessary: lb. 
 Sill. No. 3. It is sometimes expedient to make suggestions on tlie issue as to tiie 
 (!i'ii'!i <j''one or more of several ))laintift's or defendants when the action survives: 
 ss. liil, 132, and notes thereto. Tlie issue book can only be made up when issue has 
 ball joined: see section 108 and notes tliereto. But may in certain cases be made 
 \i|i liy iilaiiitifi''s attorney before tlie pleadings are in fact completed: lb. The 
 time witiiin which it must be made up is not limited. Defendant may himself, if 
 iviio 1ms been completed, make up the issue book nnd proceed to trial by proviso. 
 Wlicn made up by plaintiff's attorney it ought to be delivered either before or 
 at the lime of tlie service of notice of trial, and at least eight days before the 
 ciiiiiinission day of the assizes. But whenever plaintiff's last pleading is in denial 
 of liie (lefeiulant's pleading, i)laintitf 's attorne}', without joining issue, ma}' give 
 r.oiiie of trial at the time of serving his replication or other pleading, nnd in ease 
 of issue being afterwards joined, the notice operates from the time when first 
 ilivi.ii. And of necessity in such a case the issue book would be made u]) and 
 delivered ofkr notice of trial and ju-obably within less than eight days of the 
 nssi/es: see R. G. pr. 36. If there be several defendants appearing by dilKcrent 
 .iitoriieys, a eop}' of the issue book should be delivered to each. AVheji delivered 
 iluill be presumed to be true, and plaintiff's proceedings in respect thereof to be 
 reuiilar. If any .statement therein be untrue, an applination should be made to 
 at the issue book aside on the ground that it is untrue : Harvey v. O'Mcara, 
 i ))o\vl. 1'. 0. 080. A defendant who tiles one plen, and by mistake serves a dif- 
 f. lent one, cannot be heard against the issue on the ground that it does not con- 
 lain a true copy of the plea tiled : The Commerctai Bank of Canada v. Lee ct at, 
 6 1'. C. L. J. 21. A mere irregularity, such as the omission of the date of a plead- 
 in,', ttc, may be amended either upon application of plaintiff or of dcfenda.it: 
 Ikin V. rUuin et al, 5 Dowl. P. C. 594; Dennetl v. Ilurdij, 2 D. <t L. 484. In 
 fui'h cases jilaintiff 's proper course is to amend nnd not to deliver a second issue 
 buck; Efhersei/ v. Jackson, 8 T, R. 25,'). Tlie amendment may be made at any 
 time: Farwv/ v. Cockerlon, 3 M. &, W. 1G9. In some cases of irregularity, either 
 ill the form of issue or of its delivery, defendant, if he ajiply promptly, may set it 
 aside: see Lycett v. Tenant, 4 Bing. N. C. 168; Currejj et al v. Buwker, 9 Dowl. 
 r. C. 523; Cooze v. Neumegen, 1 Dowl. N.S. 429. But he may, by appearing at 
 tile trial, without objecting to irregularities, by his conduct waive them: see 
 Emnij et al^v. Howard, 9 M. & W. iu8. 
 
 The nui prius record is a copy of the issue book as delivered, and when the 
 l:ilt.r has neither been set a.'iide nor moved against, must be taken to be a true 
 C'p} ; Daev. Colterell, 1 Chit. Ilep. 277; but if the record agree with the original 
 
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 THE COMMON LAW rttOCEDURE ACT. 
 
 [s. 201. 
 
 for trial with tho Deputy Clerk of the Crown of tlie proper 
 County, before noon of the Commission or opening day of the 
 Assizer for such County; ((f) but the Judj^o may permit a 
 record in any suit to be entered after tho time above liinited, 
 if upon facts disclosed on affidavit, or on the consent of buth 
 parties, he sees fit to do so. (.t) 19 Vic. c. 43, s. 151. 
 
 SO^it (") The party entering any such record shall in- 
 dorse thereon whether it bo an assessment, an undefomled 
 issue or a defended issue; (A) and the Deputy Clerk of the 
 Crown shall make two lists, and enter each Record in one of 
 the said lists, in the order in which the Records are received 
 by him, and in tho first liht he shall enter all tho asscissiiients 
 and undefended issues, and in the second list all defunJed 
 issues (r) and the Judge at Nid Prius n)ay call on the 
 causes in the first list at such time and times as ho finds most 
 
 i«?*niji 
 
 pleadings n variation from tlio issue book will not ninterially nfloct it: Shrpleyy, 
 JIitr.ih,'2 S'cHnj,'e, UISO; J)uc d Cotieriil v. Wi/lde, a B. & Al. 472; ■/««« v, 
 Tathain, 8 ' aunt. tilM. Tliis section requiring tiie record to bo passed aiul si;:;ned 
 by tlie cl< n. or deputy clerk of tlie crown does not su])ersedo tlie rule of eiMirt 
 requirin^r service of ni'i issue book; liccvcs v. Eppes, Iti U. C. C. P. 137. 
 
 Tiie court will not suffer a part}' to retain a verdict upon a record wliicli Ims 
 been improperly altered by liim: Siifcer et al v. Neale, 1 Ex. 4(18. As seiiliiii:; is 
 unnecessary in tlic first instance, of course it is equally so tliough tlie cause be 
 made a remanel : see Cook v. Smiih, 1 Dowl. N.S. 861. As to issues and rocorda 
 on issues raised on pleas oinul tiel record: see Jackson v. Oa/e#, 5 D. A L. '231. 
 
 (w) Wbere in a country cause the record was entered for trial before the com- 
 mission day of tlic assizes, and afterwards and before the commission day tlie suit 
 was settlea, the master, upon consulting the chief justice of the common [ileas, 
 refused to allow tho costs of entering tho record or counsel fee: Jliiif/stvn v, 
 Whelan, 8 U. C. L. J. 72. 
 
 {x) If there be an affidavit disclosing the facts or consent of defendant to enter 
 the record, the judge may still e«ercise his discretion in allowing the same to be 
 done. In a case where plaintiff had given an undertaking to try at a pavtictiliir 
 sittinc; but did not enter Ids record on the first day of the sittings, the court above ■ 
 refused to entertam a motion for judgment during that nssi/e, because posfibln 
 the record might be entered after the first day by order of the presiding judge: 
 Burn V. Cook, 1 L. M. & P. 736 ; see furtlier Archbishop of Tiium v. McDunndl, 
 1 Ir. Law Rec. O.S. 55, 75 ; Adshead v. Upton ct al, 22 U. C. Q. B. 429. 
 
 (a) This section, as it originally appeared in the consolidated statutes, provided 
 for tliree lists, and it was repealed by Stat. 23 Vic. cap. 42, s. 2, which substituted 
 for it the section here annotated, which "shall in lieu thereof be read as the two 
 hundred and fourth section of tlie said act." 
 
 (6) Non-compliance with this direction would, it is presumed, be an irregularity, 
 amendable upon terms. 
 
 (c) " And the deputy clerk of the crown shall make," itc. This is a duty which 
 the clerk is bound to perform. 
 
8S. 
 
 :flr), 1^00, 20T.] IIKCOIIDS IN COUNTY COUUTS. 
 
 280 
 
 cunvcniciit for disposing of the business. (f7) 19 Vic. c. 43, 
 
 s.l.-il. 
 
 205. (0 In Town causes (/) tho Records shall bo en- Hc.wrod.rdu 
 tercel with the Clerk of Assize, who shall, for the purpose of i» tu'wu'^'^''' 
 recoiviiip; and entering the same, attend at the Ci)urt House '^^""'"■''• 
 on the Commission or opening day from nine in the morning 
 until noon, {if) after which he shall not receive any Kocord 
 ffilliout the order of tho presiding Judge, who shall have the 
 same power, in this respect, as set forth in the two hundred 
 and third section, (/t) and tho Clerk of Assize shall make two 
 lists, as aforesaid, which shall be regulated and the business 
 disposed of as in Country causes, (t) 19 Vic. c. 48, s. 155. 
 
 300. (,/) The Judge presiding at the Assizes or County tiic .iihIkb 
 Court sittings, may, in his discretion, peremptorily order the I'lrwi'lMiinK* 
 business of the Court ^to be proceeded with, on tho first day liiy'.'m 'ti,'o 
 of the sitting of tho Court. (/.•) 14 k 15 Vic. c. 14, s. 14. '"^' ''"y- 
 
 307. (J) In the County Courts, tho plaintiffs shall enter now m- 
 ffith the Clerk of such Courts, respectively, a record in the coiinty 
 form of a Nisi Frius record, on or before the first day of the ^'"'"'*''- 
 
 (d) Every cause is supposed to be ready whea it is placed in the list, and tho 
 cause list itself is entirely in the discretion of the presiding judge. lie has the 
 entire conduct of it, and may take the causes as ho pleases: Dunn v. Couitt, 
 17 Jitr. 347; 16 L. & Eq. i;J7. Tho exercise of that diacretiou will not be 
 reviewed by the court above : lb. 
 
 (c) This section, like the preceding as it originally appeared in tho consoli- 
 dated statutes, provided for three lists, but like the preceding section was repealed 
 by Stat. 23 Vic. cop. 42, s. 3, which substituted for it the section here annotated, 
 'wliicli shall in lieu thereof be read as the two lumdrcd and fifth section of the 
 
 laid act." 
 
 (/) As to what are town canses see section 226, 
 
 (g) In town causes the time for entry of records is apparently from 9 o'clock, 
 «. ni., till noon, but in country causes there is no such limit. In country causes 
 the record is required to be entered " before noon of the commission or opening 
 day of the assizes :" see section 203. 
 
 (A) See note x to section 203. 
 
 (i) See section 204 and notes thereto. 
 
 U) Taken from our repealed Statute 14 <b 15 Vic, cap. 14, a. 14. 
 
 {k] See note d to section 204. 
 
 (I) Taken from section 30 of the old County Courts Act, as amended by Stat. 
 12 Vic. cap. 66, s, 9, now repealed. 
 
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200 
 
 THE COMMON LAW PROOKDUBB ACT. 
 
 [8. 208 
 
 Venire. 
 
 •Court may 
 .ailjourn ii 
 trial. 
 
 skting of such Coarts, (tn) and in those Courts no other 
 venire than the following need bo entered in tbe record : 
 
 Therefore, the Sheriff (or Coroner, a< the can may 6e,) 
 
 is commanded that he cause to come before , Judge 
 
 of our said Court, at the next sitting thereof, for trials and 
 assessments, at the Court House, in , in the said 
 
 County, on the day of , in the yeir 
 
 of our Lord, one thousand eight hundred and a Jnry 
 
 to try the said issue, (ot' assess the damages, a» the eate may 
 be), (n) 
 
 Whe-i ' -^re are issues in law and also in fact, or upon ao; 
 nsse.s.^niCtit of damages, the above venire may be altered and 
 ad.'>Tited '.o the particular case, (o) 8 Vie. c. 13, s. 30; 
 I'j. Vi., c 'V f 9. 
 
 VnULS MAY BE ADJOURNED, &c. 
 
 !S208. ip) The Court (q) or Judge at the trial of aoj 
 cause (r) may, (h) when deemed right for the purposes of 
 
 
 i 
 
 (ffl) I e A transcript of the pleadings, with a venire. 
 
 (n) It is not saia that no other form of venire ihall be entered on the record, 
 but simply that no other need be entered. The distinction deserves to be noted. 
 But it is nppreliended that practitioners will follow the form given rather than 
 •experiment in now forms at the risk of having material variances. 
 
 (o) As to notice of trial in such cases see note k to section 201. 
 
 (p) Taken from Eng. Stat. 17 A 18 Vic. cap. 126, s. 19. Founded upon tlie 
 second report of the Common Law Commissioners, section 6. The object of thi; 
 section is to modify the rigorous inflexibility with which a cause commenced was 
 carried on to its close: lb. At the Guilford summer assizes, 1864, coram Pollock, 
 C. B., Shea sergeant, applied for an adjournment of a cause until the next dsy fur 
 the purpose of avoiding a nonsuit by procuring the attendance of a witness, but 
 the chief baron said he iiad no power to grant the adjournment, and nonsuited the 
 plaintiff: Fin. C. L. P. Act, 8«4. 
 
 (q) Court. Probably means the court in bane in trials at bar, which are, how- 
 •ever, of very rare occurrence: see note n to section 201. 
 
 (r) Ant/ eauie. This section has not been extended to trials in criminal cases. 
 It has been decided that on a trial for felony tbe court has no power to order an 
 adjournment from one day to another on account of the mere absence of witnesses: 
 Regina v. Parr, 2 F. ib F. Sftl. But this does not apply to a suspension of proceed- 
 ings for a short time in the sane day : see Ib. 862 notes a and b and cases therein 
 mentioned. 
 
 (<) Confers a power bnt does not impos<i an obligatioD. The provisions of the 
 •section are to be distinguished from the practice of putting off « trial— a step 
 which precedes and defers the trial, whereas the adjournment is a step taken 
 •during the pendency of a trial, and delays its progress from one day to another, 
 
g. 209.] ADDRESSES OF OOUNOEL. 291 
 
 jaatice, (0 oi'^cr an adjoarnmont for such time (t<) and >ub' 
 iect to Buoh terms and conditions, as to costs and otherwise, 
 as they or he may think fit (v) 19 Vic. o. 48, s. 158. 
 
 ADDRESSES OF COUNSEL, tic. 
 
 Ji09. (a) Upon the trial of any cause (I) the addresses How ad- 
 to the Jury shall be regulated as follows : the party who be- counsel** 
 gins, or his Counsel, (c) in the event of his opponent not utua!^"'^ 
 
 vhlch is the proper meaning of tho word adjournment. Fostponements were for- 
 merly granted not only in civil canes : see Thompson v. Lewit, 2 G. L. R. 707 ; 
 but in criminal cases: see 1 Leach, 430, note; Jttz v. Hunter, S C. A P. C91 ; 
 Rtgina v. Savage el al, 1 C. dc K. 76 ; Rtgina v. Maearthy, Oar. A M. 62S ; Rex v. 
 Palmer, 6 C. «fE P. 662; see also Regina v. Tait, 2 F. A F. 668. 
 
 (() The discretion to permit adjournments when it is deemed right for purpoaeB 
 of justice is a very wide one. It is one that can only bo exercised with advan- 
 tage by the judge presiding at the trial. lie being conversaat with the whole 
 complexion of the case, must be the bett«r able to arrive at a correct opinion as 
 to the necessity for an adjournment. The adjournment, when applied for after 
 tlie commencement of a cause, will generally be on some ground of surprise, and 
 will not be granted in favour of a party who was negligent in getting up the proof 
 of tiis case : Qraham t. Oldi; 1 F. dc F. 262. The examples given by the com- 
 mlBsioncrs are cases where it happens that a party is taken oy surprise by his 
 adversary's case, or where a witness or a document becomes unexpectedly neces- 
 Mry and is not forthcoming. One useful test will be to consider whether the cir* 
 camslances of the surprise are such that upon them the court in bane, if applied- 
 to, would grant a new trial. It is probable that if either party be clearly wronged 
 by the refusal of the judge at nisi prius to grant an adjournment, the court above 
 will grant a new trial: see Saintbury v. Matthewt, 4 M. A W. S4S; Robert* r. 
 Holmes, 2 C. L. R. 726 ; but that, unless in very clear cases, the discretion of the 
 judge, when exercised upon the facts before him at the trial, will not be interfered 
 with. 
 
 (u) Where a party hesitated at the trial to consent to a reference, Willes, J. 
 intimated that unless the necessary consent were given he would adjourn tho triul 
 till the then next assizes : Jonee v. Beaumont, 1 F. «b F. 336. 
 
 (v) See note t, tupra. 
 
 (a) Taken from Eng. Stat 17 A 18 Vic. cap. 126, a. 18. Founded upon the 
 second report of the Common Law Commissioners, section 6. The change effected 
 by this section is one that in the opinion of the commissioners was necessary to 
 the advancement of justice. The only objection to it is the possibility of a trial 
 being unnecessarily prolonged. This may be averted by the conduct of counsel 
 in the exercise of ordinary circumspection. 
 
 (i) Any caute. Held not apparently to extend to criminal cases: see The Queen 
 T. McLellan, 9 U. C. L. J. 76. But haa been aince extended to criminal caaea by 
 SUt. 29 dc 30 Vic. c. 41. 
 
 (c) The right to begin ia not altered by this act The rule which before the 
 set ])revailod ia atill to be obaerved. It ia that the party upon whom the burden 
 of proof liea is the party entitled to begin : Rex t. xeate*, 1 C. A P. 828 ; Fowler 
 T. Co»ter, 8 C. «b P. 468 ; WMiamt t. nomat, 4 0. dc P. 284 ; Lewit r. Well*, 
 1C.&P. 221. One teat ia thia: What wonid be the oonaeqoence if no evidence 
 were offered at all ? If ia such a oaae the verdict ought to be given for one party, 
 

 292 TOE COMMON LAW PROOEDUBE ACT. [g. 209. 
 
 annouDoing at the close of the case of the party who begioi 
 
 it is nianifest that something must be done by the other to prevent that coom. 
 quence, and he who has to give evidence to prevent tliat result being against hint 
 must begin: Oeaeh et al v. Inffall. 14 M. a W. 100, per Alderson, B. ; see bIn 
 Amo$ V. I/uffhtM, 1 Moo. <b R. 464 ; Soward y. Leggatt, 7 C. (b P. 613 ; LetU v. Tkt 
 Orenham Ini. Co. 16 Jur. 1161. Another test is to consider what would betiit 
 effect of strilcing out of the record the allegation to be proved, bearing in mind 
 that the right to begin lies on which ever party would fail if this step were takrn: 
 Milli V. Barber, 1 M. d; W. 427, prr Alderson, B. In trespass, with ])lca of libtntm 
 tenementum, the defendant is entitled to begir. - Peanon v. Colet, I Moo. A R, 206. 
 Defendant in replevin, who pleaded property in a third person besides dnnvinv 
 property of plaintiff, held entitled to begin : Coltti-ne v. Itiieolbi, lb. 30 ; ..ui 
 see Neville v. Fox, 28 U. C. Q. B. 231. To the rule thnt the party upon itIioid 
 the onut probandi lies has the right to begin, there are a few exceptions, ns in 
 actions for libel, slander, and injuries to the person, in which coses plaintiff shall 
 begin, though the affirmative issue bo on defendant: Cannam et al v. Farmtr, 
 8 Ex. 619, per Parke, B. ; see also Mercer v. WhaU, 5 Q. B. 447, and the resolu- 
 tions of the judges reported in lb. 462, per Lord Donman, J. The onu» probandi 
 is governed bv the following rules mentioned by Mr. Best in his work entitled 
 " Right to Begin," to the end of some of which rules the editor has appended tht 
 names of more recent cases:— 
 
 Ftrst, Generally the burden of proof lies on the party who asserts the affirmi- 
 tive on the record : Best on Right to Begin, 3 ; also Collier v. Clarke et al, fi Q. B. 
 467; Booth v, itillnii, 4 I), «k L. 62; Boatwick v. Phillipa, 6 Grant, 427. 
 
 Seeondlif. Th» affirmative on the record means t!io affirmative iu eubstanet nnd 
 not the affirmative in form : Best on Right to Begin, 6 ; also Soward v. Lfffi/ati, 
 7 C. A P. 616; Cannam et al v. Farmer, 3 Ex. 698; McCoUum v. Davit, 8 U. C. 
 ■Q. B. 160; Light v. The Woodstock and Lake Erie Railway and Harbour Co 13 U. 
 C. Q. B. 216; Piatt v. The Gore Dittriet Mutual Fire Ltturanee Co. » U. C. C. P. 
 406; Jaeobi v. The Equitable Iniurance Co. 19 U. C. Q. B. 200. 
 
 Thirdly. If there be a presumption of law in favour of the pleading of either 
 party, the onus probandi is cast upon his adversary, though he may thereby be 
 called on to prove a negative: Best on Right to Begin, 12; also MUli v. barbfr, 
 I M. «fe W. 426; Smith v. Martin, 1 Dowl. N.S. 418; Bingham v. S/anki/. 2 Q. B. 
 117; Bailey v. Bidwell, 13 M. 4 W. 78; Elkin v. Janton, 13 M. A W. 655; 
 Hogarth v. Penny et al, 14 M. A W. 494 ; Doe d. Bridger v. Whitehead, 8 A. 4 E. 
 671 ; Sutherland et al v. Patterton, M. T. 6 Vic. MS. R. <b II. Dig. "Onue Pro- 
 bandi," 7; Bex v. JViwA, Tay, Rep. 197; McKtnnon v. Burroicet, 3 0. S. lU; 
 Le Meaurier v. Willard, 3 U. C. Q. B. 286 ; Doe d. McKay v. Purdy et al, 6 OS. 
 144; O'Ntill et al v. Leight, 3 U. C. Q. B. 70; Doe d. Place H at v. Skae, 4 U. C. 
 Q. B. 369 ; MeCollum v. Davit, 8 U. C. Q. B. 160 ; ifair v. McLean, 1 U. C. Q. B. 
 465 ; Doe d. Hagerman v. Strong et al, 8 U. C. Q. B. 291. 
 
 Fourthly. When there are conflicting presumptions the onua probandi lies on 
 the party who lias in his favour the weakest presumption of the two : Best on 
 Bight to Begin, 21. 
 
 Fifthly. If the case of a party rest on the proof of some particular fact, of the 
 truth or falsehood of which he must from its very nature be peculiarly cognizant, 
 the onus of proving the fact lies on him : Best on Right to Begin, 23 ; also Sex v. 
 Turner, 6 M. A S. 209; Apolhecariet Co. v. Bentley, R. & M. 169. 
 
 Sixthly. And this rule holds good, oven though there be a presumption of Uw 
 in favour of his pi -ading : Best on Right to Begin, 23. 
 
 It may be mentioned that, after a thorough investigation, an important qualifi- 
 cation has been established, viz. in actions for damages, when the affirmative of 
 the issue is on the defendant, the latter has the right to begin, provided no proof 
 of the amouat of damage sustained is incumbent on plaintiff: Mercer v. WhM, 
 
g, 209.] ADOREbSES OF COUNSEL. 
 
 his intention to adduce evidence, (d) shall be allowed to 
 address the Jury a second time at the close of such case, for 
 the purpose of summing up the evidence ; (e) and the party 
 
 293 
 
 5 Q. B. 405. If plaintiff is bound and intends to show the amount of damages 
 tuAUined, be is entitled to begin, notwithstanding the affirmative of the issue is on 
 defendant : lb. ; see also Athby el at v. Bata, 4 D. «& L. 33 ; Pirn v. The Eaitem 
 Couniiea Railway Co 2 F. tb F. 133. But if the affirmative of the issue is on 
 defendant, and plainlilT's counsel will not undertake to offer proof of substantial 
 damages, defendant has the richt to begin : Chapman v. Rawion tt al, 8 Q. B. 673. 
 Where in ejectment the defendant admits so much of the plaintiff's case as would . 
 entitle the latter to recover, if his title were not displaced by defendant the defend- 
 ■nt is entitled to begin : litrnard v. Clune, Ir. Cif. Rep. 826. But in eiectment 
 by a devisee under a prior will against a devisee under a subsequent will, it was 
 held that defendant could not by admitting the will under which plaintiff claimed 
 obtain the right to begin: French v. French, 2 Ir. Jor. O. S. 21. 
 
 An incorrect ruling as to the right to begin is no ground for a new trial, unless 
 the ruling did "clear and manifest wrong:" Lyoni v. Fitzgerald, 8 Sm. dc Bet. 406; 
 Athbii tl al V. Batet, 4 D. «Jk L. 33 ; see also Edwarda et al y. Uatthewt, lb. 721 ; 
 Brandford v. Freeman, 6 Ex. 784 ; Doe d. Bather v. Brayne, 6 C. B. 666 ; Hnmilton 
 T. Davit tt al, 2 U. C. Q. B. 137 ; McDonald v. McUugh et ux, 12 U. C. Q. B. 608. 
 
 (if) In a case where counsel did not announce his intention to adduce evidence* 
 in consequence of which the counsel who began summed up his evidence : held 
 that the case was thereby closed, and that the former could not be allovncd aflcr- 
 vards to alter his mind and to adduce evidence: Darhy y. Ouieley, 1 H. <tc N. 1. 
 liut where plaintiff's counsel opened the case and called his witnesses, and then 
 defendant's counsel addressed the jury, and at the close of his address stated that 
 he did not intend to call any witnesses for the defence; thereupon plaintiff's 
 counsel rose to address the jury a second time : held at nisi prius under this sec- 
 tion, that plaintiff's counsel had no right to reply after defendant's counsel had 
 addressed the jury: Gibiop v. The Toronto Roads Co. 8 U. C. L. J. \\,per Robin- 
 son, C. J. 
 
 (e) Before this act the party who began a case was not entitled to a reply in 
 cases where his odversary ref'raincd '/om adducing evidence. Often his odver- 
 eary, to prevent him from having a reply, intentionally omitted to call witnesses. 
 In such cases the avowed obioct was to prevent the party who began from having 
 the last word with the jury, buJ thereby producing the last impression upon them. 
 The adversary having adduced no evidence, it was always ruled that inasmuch as 
 there was no evidence for the party who began to comment upon, there was no 
 necessity for a reply, and it was npon this ground denied. But when the adver- 
 sary's counsel in his address to the jury stated facts without intending or attempt- 
 ing to prove them, it was understood that the presiding judge might, in his dip- 
 cretion, permit a reply : Crerar v. Sodo et al. 1 M. & M. 85 ; Naith v. Brown et 'if, 
 2C. & K. 210; Arundell v. Hayea et al, 1 Hud. <& B. 486; Reordan v. Sulllrun, 
 Ir. Cir. Rep. 346. But statements made as matters of inference from the evidence 
 (lid not give a right of reply: Magrath v. Biowne, Arm. Mac. tb Og. 183. The 
 right of the party who begins to address the jury for the purpose of summing up 
 the evidence which may be merely his own evidence, must be allowed in all cases, 
 that is, in all cases where there is evidence to be summed up, which means evidence 
 fit to be submitted to a jury : see Clark v. White, Ir. Cir. Rep. 62.3. It is for the 
 presiding judge, at the close of plaintiff's case, if he be the party who began, to 
 decide whether tliere is or is not such evidence. Hence, If his decision be in the 
 negative, there is no evidence to sum up, and consequently no right to plaintiff's 
 counsel to make a second address to the jnry. To allow counsel to address the 
 
294 
 
 THE COMMON LAW PUOCEDURE ACT. 
 
 [8. 209. 
 
 on the other side, or his Counsel, shall then be ollowed to 
 open bis case and also to sum up the evidence (if any), (/) 
 and the right to reply shall be the same as at present, {g) 
 19 Vie. c. 43, s. 167. 
 
 jury on the point as to whether there is evidence or not, would bo to permit m 
 appeal from the judge to the jury, and would be manifestly improper. It would 
 bo wronj; to allow counsel to argue at the judge through the jury: I/nd(/ei t. 
 Ancrum et al, 11 Ex. 214, Piatt, B. diiientitnte. It is usual for sumo judges of 
 *>xper!cnco, where plaintiff 's counsel merely opens the pleadings, not tu reitrict 
 him to "a mere summing up" where defendant calls no witnesses. It is not 
 usual to restrict counsel very strictly to the summing up, especially if no ob- 
 jection bo mado by opposing, counsel : see GUnnie t. Oltnnie tt at, 3 8w. A 
 Tr. 109. 
 
 (/) It has been held in trespass, where there are several defcndanU, whc, 
 having separate defences plead by several atturncys, and at the trial appear by 
 separate counsel, that the latter may cross examine the idaintiff 's witnesses, and 
 address the jury separately: Dixon v. Vane, Arm. Mac. & Og. 162. 
 
 (ff) This means the general reply, that is, the opener's reply upon the whole 
 case as before the jury. The old rule, which is still the law, is thus stated: "The 
 counsel of the party which doth begin to maintain the issue, whether of plaintiff 
 or defendant, ought to conclude." Plaintiff, if the party to begin and there 
 are several issues joined some of which only are upon him, may do une of 
 two things, either anticipating the defence to go into tho whole case at once, 
 rebutting the anticipated defence as ho proccetls, or content himself vith cstab- 
 listiiu!: a prima facie case, reserving his evidence in feply till defendant has 
 established his defence: Anon. 4 Jr. L. Rcc. O.S. 120; JJalt v. Mannion. Cr. & 
 Dix. Ab. Not. Cas. 76. If he adopt the former course ho will not bo v wed to add 
 further evidence in reply : Browne v. Murray, R. if; M. 254. If ho ii pt the latter 
 mode, and defendant, besides impeaching the prima facie case, set up an entirely 
 new case, which plaintiff controverts by evidence, then defendant is entitled to a 
 special reply to tiie evidence so produced, and plaintiff to tlio general reply upon 
 the whole case : Meagoe v. Simmons, 3 C. «b P. 76. Thus, where in an action on 
 a bill plaintiff's counsel made out a prima facie case, and the defendant's counsel 
 proved usury, thereupon plaintiff called a witness in reply to deny the usury, 
 the defendant's counsel was held entitled to address the jury upon plaintiff's evi- 
 dence in reply, and plaintiff's counsel then to the gcncrnl reply: Jb. Where 
 there are several issues, the onut of proving some of which lies on the plaintiff 
 and others on the defendant, the practice is for plaintiff to begin, and prove such 
 of the issues as are incumbent on him ; tho defendant then does the same un his 
 aide ; afterwards the plaintiff is entitled to go into evidence to controvert the 
 defendant's aflimative proofs; the defendant is then entitled to a special reply 
 on tho fresh evidence in support of his afhrmative, and then plaintiff has a 
 general reply: Best on Right to Begin, 101. If plaintiff, after his case is closed. 
 proves a document which is important for his case by one of the defendant's »it 
 nesses, the defendant's counsel is entitled to address the jury in reply, but his 
 speech must bo confined to tho question in relation to which the document was 
 given in evidence: JUalo.ie v. HaektU, Arm. Mac. <& Og. 34 tf. So where the 
 opposing counsel, in his address to the jury, raises any point of law, or cites any 
 case, the other side will be allowed to address the court to the point of law or 
 observe on tho case cited without trenching on the facts in question, further than 
 is nt^cessarily involved in the discussion of tho point or case in question: lieston 
 Right to Begin, 101. It would seem that if there be only one issue on tho record, 
 and it lie upon plaintiff, he cannot content himself with a prima facie cose in the 
 
8. 210.] 
 
 0R0S8-KXAMINATION OF WITNESSES. 
 
 ?95 
 
 THE EXAMINATION OF WITNESSES. 
 
 310. (h) Upon the trial of any cause, a witness may bo croAs-esam- 
 cross-examined as to previous statements luade by him in pnvi'ms 
 writing, or reduced into writing, (t) relative to the subject h^i^wrui"^ 
 matter of the cause, (J) without such writing being shown 
 
 put fortli his whole evidence in the beginning: 
 see also Wri9ht v. Wileox, 19 L, J. C. P. 833. 
 
 grot instance, nnd after defendant han Bliakcn it, call further evidence. Ho must 
 
 Jaeob$ y. Tarlelon, \] q. li. 42] ; 
 Evidence in reply will not be 
 allowed merely bccan a it confirms the case of the party who began. It must be 
 contined to rebutting he evidence adduced for the defence: Rex v. llilditch el al, 
 5 C. A P. 299; Browne v. Murray, H. «& M. 264 ; Jacobe v. Tarteton, 11 Q. B. 421. 
 And yet it must be consistent with the original case: WhUtinyham v. Jilnxham, 
 4 C. & V. S97. It is for the presiding judge to decide as to the admissibility of 
 evidence offered in reply : Wright v. Wileox, 19 L. J. C P. 833; see further Doe 
 d. Gonlejf v. Goiley. 2 Moo. «& R. 243; Briggi v. Ayntwortk, lb 108; Oxborn el 
 al V. Thompion, lb 264; Anon. 8 Ir. L. R. 39. Where the defence of forgery 
 was set lip to an action on bills of exchanj^^o, and counsel in opening the plaintiff n 
 case stated that the only issue was " forgery or no forgery," it wag held that 
 eounscl in reply was not at liberty to open to the jury the question as to whether 
 the defendant by his conduct had not adopted the forgeries : The J'rovinciai Bunk 
 V. Cottdtoe, Arm. Mac. <b Og. 3U3 ; for had this view uf the case been opened it 
 miglit have altered the line of defence : lb. 
 
 (A) Taken from Eng. Stat. 17 A 18 Vic. cap. 125, s. 24. Founded upon the 
 second report of the Common Law Commissioners, ..action 16. Ap{>lied to crimi- 
 nal casus: Stat. 29 ii 30 Vic. cap. 41. The object of this section is to reverse 
 a rule laid down in the Queen's case, 2 B. <b B. 280, and condemned by the Com- 
 muD Law Commissioners. 
 
 (i) As to oral statements under similar circumstuuces see section 215. 
 
 (;') That is. a statement made at any time previous to his examination in chief, 
 but in reference to the subject matter of the cause. The latti^ words deserve 
 especial attention. A witness cannot be contradicted as to any statement provided 
 it ue in any way connected with the subject matter before the jury. Contradiction 
 if allowed on every pretence would involve inextricable confusion by the produc- 
 tion of innumerable collateral issues not at all affecting the merits of the cause. 
 The limitation sought to be imposed would appear to be to allow contradiction as 
 to statements not purely collateral. What statements are collateral — what not? 
 lu Aitorney-Oeneral V, Hitchcock, 1 Ex. 100, Pollock, C. B. observed, "that the 
 ■tatemont must be connected with the issue as a matter capable of being dit^tinctly 
 (^vea in evidence, or it must be so far connected with it as to be a mutter which 
 if answered in a particular way would contradict a part of the witm-ss's testi- 
 mony ; and if it is neither the one nor the other of these, it is collateral to, though 
 in some sense it may be considered as connected with, the subject of inquiry." 
 Now no matter is capable of being distinct'y given in evidence that is not rele- 
 vant to the subject matter in issue, and t us is a principle whieii exteiuls to the 
 several sections here annotated. The qur stion as to what evidence is relevant to 
 tlie subject m.itter at issue of course mus\. depend upon the nature of the cause 
 and the Issues raised. Reference may be had to the following cases : Gilbert v. 
 (iwdcrham tt al, 6 U. C. C. P. 39; Calder v. Rutherford et al, 3 B. A B. 302 ; Uey 
 V. Sfrorhoute, 6 Bing. N. C. 62 ; Backhouse et al v. Jones et al, lb. US ; Jtowe v. 
 Brmon, 8 B. «b C. 758; Tyrwhitt v. Wynne et al, 2 B. A Al. 654 ; Walls v. Lyons, 
 8 M. k G. 1047; Oeru>h v. Chartier, 14 L. J. C. P. 84 ; Smethurst v. Tui/lur et al, 
 14 L.J. Ex. 80; Murray v. Gregory, 19 L. J. Ex. 865; Alcock v. Royal Exchange 
 
29G 
 
 TUB COMMON LAW PROCEDURE ACT. 
 
 [8. 210. 
 
 to him; (k) bat if it is intended fo contradict the witnenb; 
 the writing, his attention must, before such contradfctoij 
 proof can be given, be called to those ports of the writiog 
 which are to be used for the purpose of so contradicting 
 him ; (/) and the Judge at any time during the trial, maj 
 
 Inturanet Co. 18 L J. Q. I). 121 ; Daine* tt al t. IlartUy. 8 Ex. 200; Btrry t. 
 Alderman, 13 C. B. 674. The statement roust lie one made by the witneM ud 
 not by third parties to the witness: ifuedonnell v. Evan*, 11 C. B. 9'A(). liut la 
 Uenman v. Letter, 12 C. B. N. S. 77A, where a party to the cause gave evidence 
 in support of his own case, it was held (Byles, J. Jitstnltenie) that he miglit Iw 
 Mked on cross-examination, with a view of testing his credit, whctlior a cortaia 
 action lind not been brouglit against him in respect of a similar claim upon wliich 
 he hud given evidence and was defeated, and this without proof of the record or 
 proceedings in that suit. 
 
 (*) The old rule, grounded upon the principles that the best evidence of the cor. 
 tents of a writing Is tlie writing Itself, that the beat evidence ought to bs |iroducd, 
 and that the court ought to be put in possession of the whole document, in giiin* 
 eases worked unreasonably: MeEvoy v. Agar, 4 Ir. Jur. O.S. 386; Jlunitr r. 
 Kthoe, Ir. T. Rep. .S60, 862, 854. 856 ; Puj'olat v. Holland 3 Ir. L. R. 6.S3. The 
 rule was not questioned where the ol)jcct of the examining counsel was to oitab- 
 liah the contents of a written document as a fact mntcrial to the merits of a cauae. 
 But when the object was merely to test the memory of tiio witni'ss or to disrredit 
 him, tlic application of the rule, though supported by autliority, was much duiibted 
 by eminent lawyers. LoPd Brougham more than once declared that the rule, u 
 applied to the latter case, could not be defended, but was founded on a grosi 
 fallacy. Upon one occasion he thus forcibly expressed himself: " If I wish to put 
 j^ witness's memory to the test, I am not allowed to examine him as to the con- 
 sents of a letter or other popcr which ho has written. I must put the document 
 U)to his hands before I ask him any questions upon it, though oy so doini^c he at 
 once becomes acquainted with its contents, and so defeats the object of my iiu|iiirj. 
 Neither am I in like manner allowed to apply the test to his veracity; and yet 
 how can a better means be found of sifting a person's credit, supposing nis momor; 
 to be good, than examining him as to the contents of a letter written by liiin, and 
 which he believes to be lost:" Speech on Law Reform, Brougham's Speechen, IL 
 447. Tliu reasoning contained in this speech has now prt ailed. In Staddtn t. 
 Sergeant ft at. 1 F. ib F. 322, a witness was cross-examined as to the contents of an 
 affidavit which was not put in evidence. It was objected that it ought to bo pnt 
 in, but Wilh'fl, J. overruled the objection under this section. ^Vhcn at quarter 
 sessions a witness for the crown identified a prisoner who was a dark-haired man, 
 and on cross-examination said he did not recollect whether or not he had deposed 
 before the ju$>tices of the peace that the man who had committed the assault with 
 which the prisoner was charged was *' a fair-haired man," it was held tliat the 
 counsel for the prisoner was entitled to give evidence that the witness lind made 
 such a statement, without producing and reading any part of the witness's de|)0- 
 sitlone : Rrgina v. Conner*, 4 Ir. Jur. N.S. 263. But see Regina v. Hamilton tt al, 
 16 U. C. C. P. 340. 
 
 (/.) Tliis is a limitation engrafted upon the rule enacted in the first pnrt of the 
 section. If the witness wholly deny the document itself or any statement in it, 
 the production of the document would. It is apprehended, be considered frcsli evi- 
 dence, and as evidence produced by the party cross-examining. Should this be 
 the case, llien the op{H)sito party would bo entitled- to re-examme. The question 
 how fur evidence produced is to bo deemed fresh evidence so as to entitle an 
 
8.211] 
 
 CUARQINO WITNESS WITH CRIMR. 
 
 207 
 
 require the production of the writing fur his inspection, and 
 he mny thereupon make sueh use of it fur the purposes of the 
 trial as bo thinks fit. (m) 10 Vic. c. 43, s. 161. 
 
 311. (n) A witness may be qMenioned ns to whether he rmnfnf pr«- 
 ba8 been convicted of any felony or niiHdemeanor, (u) and vil'tioiVor « 
 upon being so questioned, if he either denies the fact or ro- TJ Ki'v""'"*' 
 fu»c!» to answer, (p) the opposite party may prove such con- 4c." ""'*'* "' 
 vicliun, (7) and a certificate containing )he substance and 
 effect unly (omitting the formal part) of the indictment and 
 
 i(lvpr«nry to ro-oxnnilnp, is not nfft'ctcd by this ncction. Where a witness for 
 I'liintitfiiworo that ho Imd never heard of a certnin n(;reenient in writin!;, and it 
 wu tlR>ri'ti|ion |>ut into liis lia^ds, and lie wns tlien nsked by defedant'H counsel if 
 he had eri>r seen any agreement respcctlni^ tlic matter, to wliieh ho replied, 
 "Nrrcr ))i>rorc I came into court," lield lliat defondunt, wishing to Imvc it read, 
 coqIJ only do so by putting it in as Itis own evidence: Keyi v. Ilarwood, 16 L. J. 
 C. P. 207. 
 
 (m) To prevent abuse of the focilitirs given by the former part of this section, 
 this pruvi.so is lidded. An crnmeons ruling under this scutiun is not ptr te ground 
 furs niw triul: Uenman v. LtHtr, 12 C. IJ. N.8. 770. 
 
 («) Tnkon from Eng. Stat. 17 «t 18 A'ie. cap. 125, s. 25. Apparently founded 
 opon the !ii-cond report of the Common Law Conmiissinncrs, section 16, but goes 
 mnrh furtlier than recommended by the commi!<!)ioners. Applied to criminal 
 cues; Stul. 29 & ,S0 Vic. cap. 41 ; Stat. Dtin. 32 «t 38 Vic. c. 21», s. 6.5. 
 
 (0) It wns proposed l)v the commissioners that only questions impeaching the 
 vitne.4!«'s cKarncter or standing should be put, with the consequences of denial 
 here enacted, when such questions related to " jierjury or any other form of crimen 
 fiilii." It will bo perceived that by virtue of this section the questions may bo 
 put «9 to |)revious convictions for antf felony or misdemeanor. A denial will let 
 in tiic I roof, in contradiction of which the mode is in this section described. In 
 any i;\ I'l.t the questions authorised to be put are such only hs have a tendency to 
 iffict till! clinracter or credit of witnesses. Questions tending to degrade the 
 charni'tor of the witness bj* imputing to him misconduct not amounting to legal 
 irimiimlity remain as before the act: Rtgina v. Gurbfit, 2 C. A K. 474 ; see as to 
 HiMtioiis tending to criminate the witness as to subject him to penalties, note » 
 tiistction l!i(». If the reason assigned for not answering be iusuflicient, the wit- 
 ness Hisv be compelled to answer: In re Aston, 27 Beov. 474; Doe d. Marr v. 
 ■Vw, :! Y. C. C. P. 36. 
 
 [p) A witness so interrogated has bcforn him one of these courses — to admit 
 the criiiie deny it, or refuse to answer. If ho admit, there will be no necessity 
 for further proceedings to establish it. If ho deny it or refuse to answer, pro- 
 Kdinu'R may bo had nndcr this section. No witness can bo excluded on the 
 rroiinil of crime: Con. S'at. U. C. cap. 32, s. 3; but proof of crime may lessen the 
 nlue of hi!) testimony when admitted. 
 
 (?) No man can be i-aid to have been convicted unless the judgment of the 
 ronrt ii|Kin the indictment against hir.i has been pronounced : see Rex ex rel Rey- 
 Mlit V. liridger, \ M. & W. 146; Regina v. Whitehead, 2 Moo. C. C. 181 ; Burgeu 
 r.Boele/eur, 7 M. «t G. 481. 
 
 1! ' 
 
298 
 
 TUB COMMON LAW PROCBDUBE ACT. 
 
 [8. 212. 
 
 7^- 
 
 conviction for such offence, (r) purporting («) to be signed 
 by the Clerk of the Court or other officer having the custodj 
 of the records of the Court at which the offender wai con- 
 victed, (/) or by the Deputy of such Clerk or Officer, (rur 
 which certificate a fee of one dollar and no more may be 
 demanded or taken,) shall, upon proof of the identity of the 
 witncBB as such convict, (n) be sufficient evidence of his cod- 
 viction, without proof of the signature or the official character 
 of the person appearing to have fligued the certificate, (r) 
 19 Vic. c. 43, s. 102. 
 
 319- (a) It shall not be necessary to prove by the attest- 
 
 (r) This enactment na to the contents of the certificate Is Hubstnntially the 
 tame as Con. Stat. Can. cap. 99, s. 72, taken from Eng. Stat. 7 <b 8 Geo. IV. cop 28, 
 a. 11. And under the latter, a certificate from a clerk of assize sot tint; forth tint 
 the prisoner was " tried and convicted " of felony, but not showing thut any iudg- 
 mont had been given on the conviction, was held insufficient: Regina v. Athoyi 
 et at, 1 C. dc K. 108; see further Burgett v. Boele/eur, 7 M. dc G. 481 ; Rfgm\, 
 Stonnell, 1 Cox C. C. 142. At one time the conviction cpuld only be prpved bj 
 the production of tlio record of conviction : Maedonntll v. Evant, 1 1 C. H. 930, ftt 
 Cresswell, J. But if the record of conviction be not produced, it inunt bo proved 
 by a certificate, as in this section provided; neither the production of the calen- 
 dar of tlio sentences signed by the clerk of assize, and by him delivered to the 
 governor of the gaol, nor the evidence of a person who heard sentence parsed, ii 
 sufficient as a substitute for the record of conviction or a certificate tlicreof under 
 this section : Regina v. Bourdon, 2 C. <fe K. 366. 
 
 («) Purporting, The exact meaning to be attached to this word may be gath- 
 ered from the concluding part of the section, to the effect that the certificate may 
 bo produced " without proof of the signature or oflUcial character of the person 
 appearing to have signed the same." 
 
 (<) This means an officer of the court where the offender was convicted or an 
 officer having the custody of the records of tiiat court. A certificate from the 
 clerk of tlie crown as to convictions at courts of oyer and terminer and general 
 gaol delivery, or from clerks of the peace os to convictions at quarter sessioni 
 would be sufficient. As to his signature see Regina v. Parsons, L. R. 1 C. C. 24. 
 
 {u) The identity must of course be proved by evidence aliunde the certificate. 
 The clerk who saw the prisoner sentenced or the gaoler who had him in custody 
 under the sentence may be called for the purpose : see Regina v. Crofts, S C. 4 
 P. 219; Rfgina v. Leng et al, 1 F. A F, 77; s. c. entitled Regina v. Levy tt al, 
 8 Cox C. C. 73. But it is not absolutely necessory to call as a witncsa a person 
 who was present at the trial. It is in general enough to prove that the witnesj 
 is the person who underwent the sentence mentioned in the certificate. 
 
 (v) See note a, supra. 
 
 (a) Taken from Eng. Stat. 17 A 18 Vic. cap. 125, b. 26. Founded upon the 
 second report of the Common Law Commissioners, section 1 8. Applied to crimi- 
 nal cases: Stat. 29 <b 30 Vic. cap. 41 ; Stat. Dom. 32 &, 33 Vic. c. 29, s. 66. 
 
n2.] 
 
 PROOr or ATTESTED DOCUMENTS. 
 
 200 
 
 iD<* witness (I) any instrument to the validity of which attest- Attistinx 
 ition is not requisite, (r) and such instrument may be proved ii»t Ih. i-aiiuii 
 by admission or otherwise, as if there had been no attesting wai«ri-<iuirvd 
 witness thereto. 19 Vic. c. 43, s. 163. '''' '"* 
 
 1 upon 
 
 the 
 
 ed to cnnii- 
 66. 
 
 (h) i. e. Proof by the subscribing wltnoss mny be mndc, but slinll not be neccs- 
 iirv; other modes, If more convenient, may, with respect to tlie writings embraced 
 witliin this section, bo adopted. 
 
 (() Tlic object of tliis section is to qualify the rule that " before an attested docu- 
 inentcan be received in evidence, the attesting witness or witnesses must be called, 
 or lii« or their absence accounted for :" Doe d Sykei et at v. Durn/orJ, iH.AH. 6!I ; 
 Currie V. Child ft at, 3 Camp. 283 ; I/iffgn v. Dixon, 2 Stark. 1 80 ; Custom v. Skinnrr 
 It at, 1 1 M. 4 W. 161 ; Doe d. McDonald v. Twigg et al, 5 U. C. Q. B. 167 ; Brimetl 
 V. McDonald, MS. E. T. 8 Vic. II. <b H. Dig. " Evidonco," v. 2; lydcn v. liullcn, 
 3 U. C. Q. B. 10; Fiihmongert' Co. v. Dimadale et al, 12 C. B. 657; Smlthicicke v. 
 Bfari/, 1 Ir. C. L. R. 344, Some documents are often unnecessarily attested. 
 Atti'kution at common law is unncccssar}*. It is only requisite when made so 
 by Bunic statute, rule of court, power, or other act passed or made by public 
 hoim or private individuals having authority to impose the obligation. Such, 
 for example, wills under the Eng Stat, of Car. II. ns amended by our Ccn. Stat, 
 l". C. cap. 82, s. 1 3 ; memorials to deeds under our Stot. Ont. 3 1 Vic, cnj). 20 ; or 
 ippointments to bo made in the presence of witnesses, as prescribed in the power 
 creating the right to appoint: see further Taylor on Evidence, s. 1638. But no 
 law mnkes attestation necessary to the validity o/ a promissory note or bill 
 of exelmnge. These and such like documents may be proved with much less 
 expon.se than by the production of a subscribing witness, whose residence may 
 be ditiicult to find, or, if found, far from the place of the trial, and who, if pro- 
 duced, in all probably will only bo able to speak as to his signaturo but nut as 
 to thu circumstances under which the writing was signed. It is now enacted 
 that any instrument, though attested, to the validity of which attestation is not 
 r«|iiiMtp, may be proved " by admission or otherwise as if there had been no 
 attesting witness." But oven before this act, in an action on an attested promis- 
 sory note, it was considered repugnant to reason to hold it indispensable to })ro- 
 (luce tlie subscribing witness, when the defendant had admitted his signature, 
 under circumstances which precluded him from disputing the note: Perrif v. Law- 
 Itf, 5 U. C. Q. B. 514. Nor was it necessary to call the subscribing witness when 
 tlie document was proved by secondary evidence, for instance, the production of 
 a copy: Poole et at v. Warren, 8 A. «b E. 682. And it was held where a party 
 refused to produce a deed at a trial, and a copy of it was in consequence duly 
 proved, thot the party could not afterwards exclude the copy by producing the 
 nrii;inal, and requiring it to be proved by the attesting wit.ni-ss: Edinomh v. 
 CMlit et al, 6 D, A L. 681. Tho test in every case will be — is this document 
 one thnt requires attestation to make it a valid instrument ¥ If it be, the wit- 
 ness must be called, or his absence accounted for, or his signature proved: 
 Bwman v. Hodgion, L. R. 1 P. & P. 862. Unless tho instrument prove itself 
 by ago or proper custody : Mytton v. The Churchwardeni and Oversefrs of the 
 I'mr of Thorubury, 29 L. J. M. C. 109. Where proof must be given of the 
 attestntion, the necessity for calling the attesting witness cannot be avoided by 
 putting the party to the deed, and against whom it is sought to be used, into the 
 witness-box, and extracting an admission of the execution from him : Whyman v. 
 (iarth, 8 Ex. 803. It is a question whether an attorney who attests a document 
 (cojjnovit or warrant of attorney, R. G. pr. 26, or satisfaction piece, R. O. pr. 
 64) by direction of the court can be considered an attesting witness within the 
 principle of the cases: see Bailey v. Bidwell, 2 D. d L. 245; Streeter v. BartUtt, 
 
MO 
 
 THE COMMON LAW PROCEDURB ACT. 
 
 [8. 213. 
 
 913* ((/) Comparison of a dinputod writin;* with tnj 
 ii"iTiii|M'itT!i. writing proved to tho satisractiun of tlio Judaic tu lio punu 
 
 writiiiK with 
 gciiuliiv. 
 
 ine, («) shall be permitted to bo made by witucmua ; (/ 
 
 6 r. n. B62; Pocoek v. Pifkerititf, 21 L. J. Q. B. 36B; sco ftirthcr Dtffll tt al t. 
 White, L K. 2 C. I'. 144. It is (doubtful wlietlicr a duud can, in un fx partf cut.ht 
 lej^ally proved oxcopt by tlic fliibflcribinf; witnens wlif>n it in nttcAted. Id arfcint 
 CflHO tt WM Mid by Vicc-('linnft'llur Kiiidcrsloy tliat it could not bo: In re litny 
 1 Jnr. N.H. 222 ; but Mr. Taylor pronouncvH tho duciifiun in tliin cano to be a mvi. 
 eliii'Toui doctrine, nnd hopes that it will not become establishud law : Taylur od 
 Evidence, aoction 1640; see also Jtarrad v. Tracty, 1 L. T. N.S. 654. 
 
 ((/) Taken from Eni^. Stat. 17 A 13 Vic. cap. 12S, s. 27. Founded upon thf 
 •ocond report of tho Common Law Commissioners, section 1 9. Defore tliin ict, 
 whenever the genuineness of a writini; was in dispute, it was not allowable to pat 
 in evidence other writini^s by tho same party admitted or proved to be genninj, 
 for purposes of comparison, when the latter were not directly connected wit!) tiit 
 subject matter of the cause. A witness might speak from previously havinj^ mo 
 the party write, or from having received writings from him, tho gonnineneu of 
 wliich there was no reason to doubt, but could not at the trial compare any Bucb 
 writing with the one in dispute, so aa to pronounce an opinion upon the gcuuiat- 
 ness of the latter. 
 
 (c) For convenience of expression tho writing here mentionrci may be describtd 
 aa tho "standard." lieforo admission it must l>o "prof^d to the satisfaction of 
 the jfulfie to bo genuine." Tho mode of proof, it is under .tood, must be legal 
 
 Eroof. Tlic " standard " may be and in iMost cases will be collateral to the m\xn 
 otween the parties, and as a foimdatiun for future evidence must be establisbeil 
 to be genuine. In the case of Moim v. Tnurott, which was tried at the Warwick 
 summer assizes, IS.'ift, before tho then chief justice of tho Common Pleas, it wu 
 proposed to put in, for tho purpose of comparison only, certain documents wliicii 
 were not admitted to be in the handwriting of the defendant. The learned jud|^ 
 observod that ho and not tho jury must try in the first instance the collat«ril 
 question whether those documents were genuine, and ho observed that practicailj 
 tne cfTi-ct would bo to leave the whole question to him without the jury : Marliliam's 
 C. h. V. Act. 3 ed. p. 1»5 ; see further E^fon v. Cowan, 80 L. T. Rep.* 223. Wliere 
 a document is tendered in evidence for the purpose of contradiction, nnd its genuine- 
 ness is disputed, a collateral issue of fact is at once raised : Cooper v. Daw»on, 1 F. i 
 F. 650. When such collateral issues arise, and evidence in relation to them becomes 
 admissible at a stage of the case when it would otherwise be excluded, such evi- 
 dence should bo treated as applicable to the case generally : The lioyal Canadian 
 Bank v. Brown et al, 27 U. C. Q. B. 41, A judge at nisi prius admitted an anony- 
 mous letter for the purpose of comparison of liand writing. Tho letter bad nut 
 been regularlv proved, having been handed casually to a witness without tlie 
 attention of the court or opposite counsel being called to it until the summing up 
 of the defendant. The plaintiff at this stage of the proceedings denied that tlie 
 letter was in his handwriting. There was a verdict for the defendant. The court 
 •et aside the verdict on the ground that an improper use was made of the letter, 
 the plaintiff not having been duly apprised : Jigan y. Cowan, 30 L. T. Kep. ''"^ 
 
 223. 
 
 (/) The reasons that prompted the commissioners to recommend tho chanzei 
 carried into effect by this section are thus given : — " It seems to us indDfenslbie 
 la principle to allow a witness to institute a comparison with the recollection of 
 writings which he may have seen long ago, and of which but a faint trace may 
 remain on his mind, and yet to prohibit a fresh comparison with genuine writings, 
 more especially when for the purpose of trying the accuracy of the witness, it it 
 proposed to try the test of requiring his judgment on writing which it not ditpttn. 
 
m.] 
 
 COMPARIBON or HANDWBITINQ. 
 
 801 
 
 iD(] such writiogs and tho ovidcnce of witneues respecting 
 
 Still \et* (Ipfennlblo in our view U \t to leave the Jury to act on the Jud(pnent of a 
 iritnpM, who after all cnn only form thnt jiidtniicnt on a conipnrlion uf thu dUiiHted 
 writing with cttiors, and yet to deny tho jury the opjtortunUy of forming tlivlr 
 Off!) imlxnient on tho luinio mnteriaU." The real ehunffc wrought by tliirt net la 
 to alluw the " Htnndard " to be substantially produced In court instead of bolns 
 Metil an (urmerly. And beine pniduced, proved, and admitted, it is as niuefi 
 tributsry tu the judgment of tho jurors as of the witness. Tlio general wording 
 of the lectiun under consideration may perhaps be held to admit oT the productloa 
 ofitperlt, or men whose business it is to compare styles and character of writing, 
 irid whu in consequence are skilled ir. that scienco, if such it may bo termed. 
 Thii (li'scription of testimony niav, at lenHt, it is conceived, be received as rebdt- 
 tint; cviilenee. All evidence of handwriting, except when the witness sees the 
 dixutncnt written, is in its nature comparison ; it is tho belief which a witnosi 
 (Dtertuins upon comparing the writing in nucstion either with an exemplar in hia 
 miiiii, (itrivcd from some previous knowledge, or from an exemplar exhibited tu 
 hiui wIk-q testifying. As to tlio Hrst pait, tlie knowledge of tho proposition may 
 bare been acquired cither by seeing the partv write, in which case it will ba 
 tironi;er or weaker according to the numlx-r of times and periods and other cir- 
 cunMtaticfs under which tho witness ! .m I'-n the party write: Garrells v. Alifx- 
 tiidrr,* Ksp. 87; Poieetl V. Ford, 2 Stark. 164; J^wln el al v. Sapio, M. dc M. 
 Vi; or tiie knowledge may hn\ i' been acquired by tlic witness having seen letters 
 or other documents profi-ssing to be the handwriting of tho party, and having 
 lAcrwarils communicated personally with the party upon the contt^nts of those 
 litters nr documents, or having otherwise acted upon them by written answers 
 ppxlucing further eorrespondence or actpiiesecnce by tho party in some mutter to 
 »hioh tliey relate, or by the witness transucting with the party some business to 
 vblch tlicy relate, or by any otiier mode of communication between the party and 
 tk AJtiiuiix, which in the ordinary course of transactions induces a reasonable j>re- 
 Miiii|itivn that tho letters or documents were tho handwriting of tho party : iA>rd 
 Fnmt V. .S'/jm/j-.v, Fitz. 195; Iluller's Nisi I'rius, 23(5; Carei/ v. Pitt, Veake, Add. 
 IV i;to; Tbiirj)tv. GUhurne, 2 (". d I*. 21 ; Hatrhifflon v. /■'»•//. R. tt M. «<»; evidence 
 of the identity of the party of course being added nlhtmlc if the witness be not 
 pirsonally acquainted with him. These were the only two modes of acquiring n 
 LDiiwli'd;fu of handwriting which have hitherto been considered sufileient to entitle 
 I vlttieiis to speak as to his belief in a question of handwriting: Jirx v. Vntor, 
 4 Esi). 117; Doe d. Mmld v. Snelrennore, 5 A. ifc E. 7<>3 ; Fitzwalter Peerage Case, 
 10 CI. (t Fin. 19«; see also Orifflt» v. Ivery, 11 A. «t E. 322; Hugfiee v. liogtrit, 
 8 M. k \V. 123 ; Young v. F/onuer, 2 Moo. & R. 536. But as to the second part of 
 the proposition above stated and that which now constitutes a third mode. It is 
 by satisfying the witness by some information or evidence that a written paper is 
 ill the handwriting of the party, and then desiring him to study that paper, so aa 
 tu refresh his knowledge of the handwriting of the party, and fix an exemi'lar ia 
 bii mind, and asking his belief respecting it, or perhaps (W qu.) by merely put- 
 tin:; certain papers into the witness's hands .without telling him who wrote them, 
 ud desiring him to study them and aeqiiirc u knowledge of the handwriting, and 
 •fterwnrds showing him the writing in disiiute, and asking his belief whether they 
 ire written bv the same person : I)oe d Studil v. Suckirmore, 5 A. A E. 703. In 
 u action for libel charging the plaintiff with having in a letter published a libel 
 «fl tlie defendant, to which the defcndart pleaded in justificatian that the plaintiff 
 did in fact publish the libel in question, and it appeared that in the libel thus 
 tlleged to have been written by tne ]>laintiff, the name of the defendant was spelt 
 i-i 1 peculiar way : Htld, in or^er to prove that the plaintiff wrote the libel, other 
 ilocumcDts written by him, in which the name was so tpcU, were receivable ia 
 (viileoce: Brooket v. l^ehbortu, 6 Ex. 929. 
 
302 
 
 TDK COMMON LAW PROCEDURE ACT. 
 
 [8. 214. 
 
 mm 
 
 m 
 
 Hiiw far a 
 party niay 
 
 the same, may be submitted to the Court and Jurj, (g) y 
 evidence of the genuineness or otherwise of the writiog in 
 dispute. 19 Vic. c. 43, s. 164. 
 
 314. (h) A party producing a witness shall not be alloved 
 to impeach his credit by general evidence of bad character, (i) 
 
 {ff) That proof of handwriting may bo submitted to the consideration of a jurr, 
 lilco everv other species of evidence, is abundantly clear. From tlie highest 
 degree of certainty, carrying with it perfect assurance and conviction, to the 
 lowest degree of probability upon wliicli it is found to be unsafe to act, it may tw, 
 and constantly is, so submitted: Doe d. Mudd v. Suckermore, 6 &.. & E. 1\9, pn 
 Willioms, J. The writings or "stondards" collaterally introduced and the evidence 
 of witnesses reHpccting the same may now both be submitted to the jury. It is 
 for them to exercise an independent judgment upon the testimony of the wiinessc<, 
 and by a process of reasoning in many respects similar to that of the witnesses, 
 but, in view of the whole case submitted, of a much more extended and compre- 
 hensive character. In Jiirch v. Jiidgway, 1 F. «fe F. 270, in an action on a billot 
 exchange, the acceptance being denied, documents, such as receipts, &c. not relt- 
 \ant to tiie issue, but found to be in the handwriting of defendant, were niloved 
 to be put in evidence for the purpose of comparison. So where an attesting wit- 
 ness on cross-examination denied his handwriting, other documents admiitvd by 
 him to be genuine were submitted to the jury for the purpose of comparison. 
 Cresfteell v. Jackson, 2 F. & F. 24. The question being w^hether a meniorandum 
 was in the handwriting of the defendant, and he having in the course of his cro's- 
 examination been induced to write something on a piece of paper, this was allowed 
 to bo shown to the jury for the purpose of comparison of handwriting under this 
 section : Cobbett t. Kilmintter, 4 F. <& F. 490, coram Martin, B. ; see furtlier Dot 
 d. Devim et al v. Wilton el at, 10 Moore P. C. 630. On a comparison of handwrit- 
 ing, both documents must of course be before the jury : Arbon v. Futiell, Z?.i 
 F. 1«2. 
 
 (A) Taken from Eng. Stat. 17 A 18 Vic. cap. 126, s. 22. Founded upon the 
 second report of the Common Law Commissioners. Applied to criminal coses: 
 see Stat. 29 <& 30 Vic. cap. 41 : Stat. Dom. 32 ib 33 Vic. cap. 29, s. 68. The origin of 
 the section appears to be the Now York Civil Code, ss. 1 846, 1 848. And the gection 
 itself settles a question which for a long time has caused great difficulty in tlie Eng- 
 lish system of jurisprudence. The law, with attendant difficulties, as it stood before 
 this act, is thus put by the commissioners : " It occasionally happens that a witness 
 railed by a party in a cause, under a belief that he will prove a certain fact, turns 
 round upon the party calling him and proves directly the reverse. The party is of 
 course not precluded from proving by other testimony what the witness liaa nega- 
 tived : see Hardwell v. Jarman, Bull N. P. 297 ; GoodiiUe v. Clayton et al, 4 Burr. 
 2224 ; Bradley v. Ricardo, 8 Bing, 67 ; Friedlander v. Tfu London Asntrance Co. 
 4 B. «fe Ad. 193; Palmer v. Trower, 22 L. J. Ex. 32; but ought he to be allowed 
 to discredit the witness by impeaching his veracity or credit by showing that i«: 
 has made previous statements at variance with the evidence he has given in toe 
 box ? The decisions are conflicting ; the weight of authority tends to establish 
 the negative, while the weight of reason and argument appears to be decidedly in 
 favour of the affirmative:" Second report, section 13. The latter has been sup- 
 
 ftorted by Starkie, Phillips and Taylor, in their several treatises on evidence, and 
 s the view adopted by the legislature in this act. 
 
 (i) There is reason and authority for this position. If the party producing * 
 witness is prepared to give general evidence of bad character, why does he pro- 
 duce him at all ? To produce a witness under such circumstances, if undisclosed. 
 would be a fraud upon the court. Th» conduct of the party producing bim would 
 
8.214] 
 
 CONTRADIOTINQ WITNESS. 
 
 303 
 
 but in case the witness, in the opinion of the Judge, proves di!<rmi!t his 
 adverse, (J) such party may contradict him by other evi- ucsg. 
 dcnce, (k) or by leave of the Judge, (I) may prove that the 
 witness made at other times a statement inconsistent with his 
 
 be most reprehensible. His object would be to keep secret the infamous character 
 of the witness, so long as that witness served the purpose intended, but to expose 
 him tlic moment he became intractable. A party producing such a witness should 
 never bo allowed to say at one moment that he is a man of good character, and 
 at the next that he is quite the contrary. His veracity is endorsed by his pro- 
 duction. His conduct is at the risk of the party producing him, who, if disap- 
 pointed in his expectations, is justly pnnished for his attempted deceit: see £icer 
 ,t al V. Ambrose, 3 B. A C. 746. 
 
 (;■) A reference to the presiding judge is here intended. If in h!» opinion the 
 witness prove adverse, then, &c. Whether adverse or not is for the judge and 
 not for tlie court to determine: see Oreenough v. EccU^ et al, 6 C. B. N.S. 786. 
 Tlio word "adverse" as here used means hostile, 8t«.1 not simply unfavour- 
 able: VoUs V. Coles et al, L. R. 1 P. cb D. 70. It is for the judge t<; see whether 
 the proposed evi'lence is controversial or be inconsistent with the witness's pre- 
 sent statement, and it is for the jury finally to decide this when the evidence has 
 been left to them : Jackson et itx v. Thomason, 1 B. <& H. 745. Erie, J. in Drar v. 
 Knight, 1 F. & F. 433, held a witness " adverse " simply because he made a state- 
 ment contrary to what he was called to prove ; and again in effect so held in 
 Pound V. Wilson, 4 F. A F. 301. Where in trespass against the sheriff in seizing 
 jjoods, the plaintiff called the witness who made the seizure and sale, who swore 
 that the plaintiff, after giving notice of claim, withdrew the claim, and the plain- 
 tiff otfvrcd evidence to disprove the alleged fact of withdrawal, which evidence 
 was rejected, and it appearing that this section was not brought under the con- 
 sideration of the learned judge, the court ordered a new trial: Robinson v. Rey- 
 nolds, 22 U. C. Q. B. 560. 
 
 (i) Before the C. L. P. Act, the rule on this subject was thus laid down in 
 BuUcr's N. P. 297 : " A party never shall be permitted to produce general evi- 
 dence to discredit his own witness. ** * But if a witness prove facts in a cause 
 whicli make against the party who called him, yet the party may call other wit- 
 nesses to prove that those facts were otherwise ; for such facts are evidence in 
 the cause, and the other witnesses are not called directly to discredit the first 
 witne.ss, but the impeachment of his credit is incidental and consequential only." 
 Per Cockburn, C. J. in Greetmigh v. Eccles, 7 W, R. 341 : " I think in the act 
 there has been a great blunder made by those who framed this section, and in 
 the legislature by those who adopted it. Instead of the clause as to the opinion of 
 the Judge as to the witness being adverse being made to {.recede the third branch 
 of the section, it has been made to precede the second branch. The better plan 
 is to consider that the second part of the section is superfluous." And per Wil- 
 iiaiDB, J. in same case: "It is impossible to suppose the legislature could have 
 really intended to impose any fetter whatever on the right of a party to contra- 
 dict his own witness by other evidence relative to the issue — a right not only 
 established by authority, but founded on the plainest good seuse." 
 
 (0 " Even if the lord chief justice had been wronjEr. I should have been, as at 
 present advised, of opinion that we have do jurisdiction to renew his ruling. In 
 order, no doubt, to prevent the increase of causes of new trial, the legislature 
 have, as it appears to me, in terms made the opinion of the judge, on this point, 
 ahsolute, and therefore final:" Greenough v. Ecdes et al, 6 C. B. N.S. 806, per 
 Willes.J. 
 
304 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [S. 214. 
 
 
 present testimony ; (m) but before 6ucb last mentioned proof 
 can be given, tbe circumstances of the supposed statement, 
 
 (m) A frond example, and the one commented upon by the commissioners, ii 
 involved in Wriphl v. Beckett, 1 Moo. & R. 414. It was an action of trespass (/uan 
 clausuni f regit, brought to try the question whether the plaintiflT liad excluairg 
 right to tlie soil of a piece of land. Ilis counsel adduced four witnesses, wliost 
 evidence established that he and his predecessors had exercised immemorial acU 
 of ownership over it. He produced a fifth witness to prove the same fact; but 
 this witness contradicted the previous witnesses. Thereupon the plaintiff's conn- 
 Bel aslced him it he had not given a different account of the facts to plaintiff's 
 attorney a few days before. The question was objected to, but allowed to be put. 
 The answer was evasive, whereupon plaintiff's counsel called plaintiff's attorney, 
 and asked him whether the witness had, upon the occasion referred to, given him 
 an account different to that given at the trial. This also was objected to, but 
 allowed to bo put. Afterwards a motion for a new trial was made upon the ground 
 that the question ougitt not to have been allowed ; but as the court was equally 
 divided, no rule was granted : see also Rex, v. Oldroyd, R. & R. C. C. 88 ; Dum 
 V. Aslett, 2 Moo. & R. 122. Where in an action for damages done to plaintltT's 
 mare by four "ferocious and miscliievous dogs" of defendant, Uie witness for 
 plaintiff, called to prove the misclnevous nature of the dogs, and defendant's 
 solicitor proved quite the contrary, the court refused to allow plaintiff to call an 
 . attorney's cleric to show that the witness had made a different statement: Reed'^. 
 King, 30 L. T. Rep. 290. In Faulkner v. Brine et al, 1 F. & F. 264, the defendant's 
 attorney was allowed <to be called to show that a witness had given to him a 
 materially different statement to that which he gave in court. So in Btar t. 
 Knight, I F. «& F. 433, the defendant nas allowed to cantradict his own witness 
 by showing a statement made by him contrary to his sworn testimony in the box. 
 But it is not necessary that the two statements should be absol ilely at variance. 
 It is enough if in the opinion of the judge the evidence offered has a tendency to 
 contradict : Jackson et ux v. T/iotnason, 1 B «& S. 745. A scries of letters may bu 
 used for the purpose, though one only is inconsistent: /A.; see further 6'>«««wi/ 
 et al V. Jackium el al, 4 F. <fe F. 1 ; Coleii v. Coles et al, L. R. 1 P. <fe D. 70 ; see also 
 Jiyberc/ v. Jiyberg et al, 32 L. J. Pr. <fe Mat. 112; in which the court and counsel 
 engcjed appear to have inadvertently ignored the existence of this section. The 
 right to contradict witnesses under this section applies only to witnesses produced 
 by o party, who, upon their examination-in-chief, prove odverse to the party pro- 
 ducing thein. When produced by the opposite party, the right to contradict them 
 upon cross-examination exists independently of this section : see notes to section 
 215. The section, in effect, lays down three rules as to the power of a party 
 to discredit his owu witness: 
 
 1. He shall not be allowed to impeach his credit by general evidence of hia bad 
 character. 
 
 2. He may contradict him by other evidence relevant to the issue. 
 
 3. He may prove that he has made at other times a statement inconsistent with 
 his present testimony. 
 
 " The law relating to the first two of these rules was settled before the passing 
 of the act, while as to the third the authorities were conflicting — that is ♦o say, 
 the law was clear that you could not discredit your own witness by general evi- 
 dence of bad character, but you might nevertiieless contradict him by other eri- 
 dence relevant to the issue. Whotner you could discredit him by proving that 
 ho had made inconsistent statements, was to some extent an unsettled point:" 
 Oreenougfi v. Ecclet et al, 6 C. B. N.8. 802, per Williams, J. To contradict a wit- 
 ness does not necessarily mean to discredit him in the sense in which the latter 
 word is commonly understood by lawyers : see Pretcott v. Flinn el al, 9 Bing. 19; 
 Tennant v. Ilof/iilton, 1 CI. A Fin. 122. In cross-examining a witness for tbo p'tf- 
 
s. 215.] 
 
 PROOF OF CONTRADICTORY STATEMENTS. 
 
 305 
 
 sufficient to designate the particular occasioo, must be men- 
 tioned to the witness, and he must be asked whether or not 
 he did make such statement, (n) 19 Vic. c. 43, s. 150. 
 
 SltS. (o) If a witness, upon cross-examination as to a for- Proofofoon- 
 nier statement made by him relative to tho subject matter of stati'mlnTs 
 the cause, (;)) and inconsistent with his present testimony, (q) ^vitulla"^ 
 Joes not distinctly admit that ho did make such statement, 
 
 fiDse of testing his credit grcnt caution is required. If tlio question put to liim be 
 rL'li'vnnt, his answer moy bo contradicted by independent evidence ; but if irrele- 
 vant tiiero can be, as a general rule, no contradiction, and his answer is conclu- 
 sive: see flection 215. To admit evidence contradictory of irrelevant statements 
 would lead to inextricable confusion by raising in a suit an endless series of col- 
 lateral issues: Allorney-Oeiieral v. Iliiclieock, 1 Ex. 91. Again, an adverse witness 
 has no i'i<;ht, on cross-examination, to make voluntary- statements against the party 
 examining him which he could not give in the examination-in-chief. Such state- 
 ments, if made, should, upon application of the party prejudiced, be expunged from 
 the judge's notes, otherwise the examining party will bo bound by them as his own 
 (videMcc, and his o])poncnt entitled to re-examine tho witness upon such new or 
 collateral matter: Jilcwctt v, I'regmining, 3 A. <& £. 654. 
 
 (n) As time, place, <kc. and other circumstances calculated to refresh the memory 
 of the witness in such a manner as to prepare him for the consequences of mis- 
 statement. The object of laying a foundation for the admission of contradictory 
 evidence is more particularly to enable the witness to explain his previous state- 
 ment. For this purpose, and for this purpose only, it is apprehended that the 
 witness may be asked whether he ever made such previous statement, ond at tha 
 same time may be mentioned to him tho name of the person to whom or in whose 
 presenee lie is supposed to have made it : see Crowley ct al v. Page, 7 C. & P. 789. 
 " It must be in the knowledge ond experience of every man that a slight hint or 
 su^sestion of some particular matter connected with a subject, puts the faculties of 
 the mind in motion, and raises up in the memory a long train of ideas connected 
 with tlint cubject, which until that hint or suggestion was given were wholly 
 absent iVom it. For this reason the proof that at a time past a witness has spoken 
 on any subject does not lead to a legitimate conclusion that such witness, at tho 
 time of his examination, liad that subject present to his memory, and to allow the 
 jiroof of his former conversation to be adduced without first interrogating him as 
 to that conversation and reminding him of it, would in many cases Imve on unfair 
 effeet upon him and upon his credit, and would deprive him of that reosonoble 
 protiictioii, which it is the duty of the court to afford to every person who appears 
 as a witness:" The Queen's Case, 2 B. ife B. 300, per Abbott, C. .1. 
 
 (o) Taken from Eng, Stat. 17 «fe 18 Vic. cop. 125, s. 23. Founded upon the 
 second report of the Common Law Commissioners, section 14. This section seta 
 at rest doubts caused by a conflict of authorities. It has been applied to criminal 
 cases: Stat. Dom. 32 & 33 Vic. c. 29, s. 69, 
 
 (p) See note j to section 210. 
 
 [q] Two things are essential to the admissibility of proof as to a previous stote- 
 nient— tirst, that it be relevant to tho subject matter of the cause, and, secondly, 
 tiial it be inconsistent with the testimony of the witness at the trial. If a witness 
 simply testify to a fact, his previous opinion as to the merits of tho cause cannot 
 
 20 
 
30G 
 
 TQE COMMON LAW PBOCEDURE ACT. 
 
 [S. 215. 
 
 1 
 
 m 
 
 » 
 
 ■4 
 
 t 
 
 Ml 
 
 •!|l 
 
 m 
 
 ^^^Ht i 
 
 8 
 
 hH 
 
 ^^^^H' 
 
 1 
 
 IP 
 
 9' 
 
 
 proof may bo given that he did in fact make it; (r) bat 
 before suoh proof can be given, the circumstances of the 
 supposed statement, sufficient to designate the particular 
 occasion, must be mentioned to the ^ritness, and he mast 
 be asked whether or not he did make such statement, (s) 
 19 Vic. c. 43, s. 160. 
 
 be hold to bo rolevant for tho purposes of this section : see Elton v. Larkini, 8 C 
 & P. 385; Daniels v. Conrad, 4 Leigh. Vir. R. 401. 
 
 (r) Of course if tho witness admit the previous statement, there will be co 
 necessity to give other evidence of it. If lie deny it, evidence to prove it may 
 be given independently of this section. But if ho say lie does not recollect, and so 
 neither distinctly admit nor deny, then under this section tho previous statement 
 may bo proved oy independent evidence. Before this act tho right to do so was 
 doubtful : see Pain v. Beeston, 1 Moo. <& R. 20 ; Crowley et al v. Page, 1C& P. 789 ; 
 Long V. Hitchcock, 9 C. «fe P. 619. In applying this section to practice it must be 
 remembered that immediately after asking tlio witness whether he made any pre- 
 vious state or representation inconsistent with his present testimony, he should be 
 asked whether ho made tho statement in writing or by parol : The Queen's Case, 
 2 B. & B. 292. If a witness in chief on the part of tho plaintiff, being asked whether 
 he remembers a quarrel taking place between A. and B. answer that he has heard 
 of a quarrel between them, but does not know the cause of it, and such witness is 
 not asked upon his cross-examination whether ho has or has not made a declara- 
 tion touching tho cause of the quarrel, the counsel for the defendant cannot, in 
 order to prove such witness's knowledge of the cause of the quarrel, afterwards 
 examine a witness to prove that tho other witness has made such a declaration to 
 him touching the cause of such quarrel : lb. 299. So if he answer that he docs uut 
 remember it, and is not asked on his cross-examination whether ho has or not made 
 a declaration respecting such quarrel, tho counsel for the defendant cannot, in order 
 to prove that such witness must remember the quarrel, afterwards examine a wit- 
 ness to prove that tho other witness has made such a declaration : lb. If a wit- 
 ness in support of a prosecution has been examined in chief, and has not been 
 asked on cross-examination as to any declaration made by him or acts done by 
 him to procure persons corruptly to give evidence in support of tho prosecution, 
 it is not competent to tho accused to examine witnesses in his defence to prove 
 such declaration or acts without first calling back such witness in chief to be 
 examined as to the fact whether he ever made such declaration or did such acts: 
 /6. 811. If a witness is called on the part of the plaintiff or prosecutor, and give 
 evidence against the defendant or accused, and if after cross-examination tho 
 defendant's or accused's counsel discover that the witness so examined has cor- 
 rupted or endeavoured to corrupt another person to give false testimony, in such 
 case tho counsel for the defendant or accu. -id is not permitted to give evidence of 
 such corrupt act of such witness, without calling him back : lb. Where in an 
 action against a company for work dono, plaintiff proved by a witness that tlie 
 directors had at a certain meeting employed him to do it, and tho witness was 
 afterwards asked in cross-examination whether the chairman had not told the 
 plaintiff on that occasion that whatever he did must bo at the risk of himself and 
 others, and that the company could not pay him, which the witness denied, and 
 defendant having called another witness to contradict him in that respect, ii was 
 held that plaintiff might give evidence in reply by way rebuttal : Cope v. Tlit 
 Thames Haven Hock and Hallway Co. 12 Jur. 923. 
 
 (() See note n to previoua section. 
 
8. 210 ] 
 
 AMENDMENT OF VARIANCES. 
 
 807 
 
 AMEXDMKNXa AT TUE TKIAL. (<i) 
 
 Variances 
 
 3S6. (/>) When upon the trial in any Civil Action, (c) may'i,V 
 
 (a) By an amendment is understood the correction of nn error. The court has 
 nn inliirVnt jnrisiliction to iillow nmendments when in fiirthernnce of justice; but 
 the exercise of tliis jurisdiction at common law was very uncertain, licpeated 
 refiis.il:^ to exercise it in cases wliere it might have been beneficiall}' cxf.'rcimMl led 
 to till? [lassin!^ of a series of statutes, each ouo of wliicli is more conipreiiensive 
 than its predecessor. Power is conferred to amend errors caused bj- tiie mis- 
 prision of officers of the court: 14 Ed. III. Stat. 1, cap. 6, which amendments are 
 allowable either before or after judgment: 4 Hen. VI. cap. 3; 8 Hen. VI. caps. 
 121.), So mistakes or misprisions of the parties are in certain cases cured after 
 verdict or confession of judgment by the operation of statutes known as the 
 Matiilcs of Jeofails: 32 Hen. VIII. cap. SD; 18 Eliz. cap. 14; 21 Jac. I. c. 13; 
 Ki it 1 7 Car. II, cap. 8 ; 4 & 5 Anne, cap. 16, a. 2 ; 5 Geo. I. cap. 13. Until modern 
 times there does not appear to have been any distinct power to make amendments 
 at the trial of an action. This was the cause of great mischief, and the miscliief 
 induceil specific remedies at the hands of the legislature. The legislature of this 
 rrovinee, imitating the legislature of England, passed very important statutes 
 upi)ii the subject of amendments. In 1831, an act was passed authorizing amend- 
 ments of v.iriances: 1 Wm. IV. cap. 1, s. 1, which was afterwards consolidated as 
 Con. Stat. U. C. cap. Ill, s. 1, and was in effect the same as the section here anno- 
 tated. The Stat. 1 Wm. IV. cap. 1, s. 1, was taken from Eng. Stat. 9 Oeo. IV. cap. 
 15. Afterwards, in 1886, a second act was passed, which considerably extended 
 the powers of the court and judge to make amendments: 7 Wm. IV. cap. 3. s. 16. 
 This was in effect the same as section 217 of tlie C. L. P. Act. The 7 Wm. IV. 
 cap. 3, s. 1.'), was taken from Eng. Stat. 3 & 4 Wm. IV. cap. 42, s. 23. The powers 
 of anieiidnient now conferred by the C. L" P. Act are, however, of a much more 
 extended and remedial character than any of the preceding. 
 
 First. If plaintiff or his attorney shall omit to insert or indorse on any writ or 
 copy any of the matters required by the C. L. P. Act to be indorsed, an amend- 
 ment may be allowed : section 48. 
 
 I^ecoutlhf. It is in the power of the court or a judge at any time br/ore the trial 
 of any ciuise under certain circumstances to order that any person or persons not 
 joined as plaintiff or plaintiffs in such cause shall be so joined, or that any person 
 or pei's'jns originally joined as plaintiff or plaintiffs shall be struck out from such 
 cflu^e: sections 63, 64. 
 
 ThinVii. In case it shall appear at the trial of any action that there has been a 
 misjoinder of plaintiffs, or that some person or persons not joined as plaintiff or 
 plaintids ought to have been so joined under the circumstances, such misjoinder 
 or nonjoinders may be amended as a variance at the trial: sections »>.'), 6ti. 
 
 Foui-thlij. It is in the power of the court or judge, in case of tlie joinder of too 
 many defendants at any time before the trial under certain circumstances, to order 
 that tlic names of one or more of such defendants shall be struck out: suction 6t*; 
 so also if it appear at the trial that there has been a misjoinder of defcndiints, such 
 misjuinder may be amended as a Vitriance at the trial : lb. 
 
 fiftlilii. It is in the power of the superior courts of common law and every judge 
 thereof, and .every judge sitting at nisi prius, at all titnen to aincMul all (hftftn and 
 (rron. whether there bo anything in writing to amend by or not: suction 222. 
 
 'SV.iV/i/y. All such amendments as may be necessary for determining in the exist- 
 in? suit the real question in controversy between the parties, shall be so m.ade ; 
 section 222 
 
 (i) Taken from our repealed statute 1 Wm. IV. cap. 1, s, 1, which was a tran- 
 script of the Eng. Stat. 9 Geo, IV. cap, 16, 
 
 ('') There is a similar enactment in criminal cases : Stat, Dom, 32 <& 33 Vic. 
 
 c. 29, s. 70. 
 
 1 
 
 
 vu 
 
 
 w 
 
 
 iS 
 
 
 
 J 
 
308 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [«. 216. 
 
 Wi o 
 
 tF ■' 
 
 •l*-^- taj^* 
 
 ht 
 
 '^'k.. 
 
 f' 
 
 eir 
 
 ■;•■' • 
 
 m 
 
 ) 
 
 
 
 iSi'l 
 
 \f 
 
 'l^mrnn '^f 
 
 Is 
 
 K 
 
 i 
 
 fefc' 
 
 pT 
 
 14 
 
 amon.i.'.i in f,!' Tnforiiintion fiir any Misdemeanor, (d) before any Court of 
 
 civil ("t^l'H 
 
 and in pros- Record holding Plea in Civil Actions, or any Judge sittinf; 
 
 4'ciit ions for . , . ^ /• N • I 
 
 iniHiicniian- at l\isi. Fnits, {e) any variance appears between any matter 
 •lisi-niiHii of in writing cr in print produced in evidence, and the recital 
 or";u'(il|« or setting forth thereof upon the record whereon the trial is 
 thirellf. ''"'" pending, (/) such Court or Judge may (g) cause the Record 
 
 (d) It lias been snid tlint amendments should be made very sparingly in crimi- 
 nnl cases : Recihn v. Cooke, 1 C. &, P. 559, In Regina v. Hewins, 9 C. & P. 786, 
 it was said by Coleridge, J. that one objection to readily permitting of an indict- 
 ment was that by it a presentment on oath of a grand jury was thereby altered; 
 see furtluT liKjina v. Christian, Car. & M. 888 ; litgina v, Newton, 1 C. tk K. 4fi9. 
 
 (c) Amendments by and before courts of oyer and terminer and general eaol 
 deliver}', courts of giTcral quarter sessions and recorders' courts, corresponding 
 with tliose authorized by this enactment, are authorized by Con. Stat. U. C. cap. 
 lll.s. 1. 
 
 (/) Tliis section, it will be observed, is not very extended in its operation. 
 The jjower is not to amend all variances, but only such as appear botwcea 
 "any niattor in writing or in print produced in evidence, and the recital or 
 setting fortb thereof upon the record." It will apply more especially to cnsea 
 where plaintiff sues upon a written or printed contract, and a variance between 
 the contract proved and declared upon appears at the trial. So it is appre- 
 hended if the variance arise as between the written or printed matter nnd a 
 plea, or any subsequent or other pleading. If the variance be in an averment 
 relating to a written instrument, an amendment may be made, althoiij^h the 
 instrument be not set out : Manterman et al v. Jiidson, 8 Bing. 224 ; and a vniiance 
 between a written contract and the contract stated was allowed, although it did 
 not ajipt'ar by the record that the contract was in writing: Lamei/ v. Mthrp, 
 4 B. &. Ad. 479. But the section only applies to cases where matter in print or in 
 writing is actually produced at the trial : Brooks v. Blamhard, 1 C. «fe M. 779. It was 
 decided under this act that an averment as to a bill of exchange was amendable 
 as to date : Bevtzing v. Scott, 4 C. <fe P. 24 ; amount: Sanderson et al v. I'lpeni al, 
 1 Dowl. P. C. 032 ; and in the name of the party, though not a party to the action: 
 Path V. Edge, 1 C. & M. 429; and see Pidlen v. Sepnotir, 5 Dowl. P. C. 164. A 
 promise to pay by api)roved bills falling due " before" a certain day was amended 
 by substituting "by " for "before:" Lamey v. Bishop, 4 B. <fc Ad. 474. So where n 
 judgment was averred to be of one court, and when produced appeared to lie of 
 anotlicr: Rriant v. Eicke, Moo. A M. 359. A statement in the declaration that 
 the plaintiff caused to be left with the defendant " a copy of the writ of subpcrna" 
 was altered into " a copy of so much of the said writ of subpoena as related to the 
 said defendant:" Masterman et al v. Judaon, 8 Bing. 224. It was said by Alclorson, 
 B. in Hopkins v. Francis, 13 M. & W. 668, that a variance between the pleading 
 and record on a plea of nul tiel record might be amended under this section: lut 
 see Davis v. Dunn, 1 Dowl. N S. 317. Where the proposed amendment would have 
 totally altered the nature of the allegation, as when the declaration stated a judg- 
 ment of non pros, and the evidence shewed a discontinuance, an amendment was 
 refused : Wehb v. Hill et al, 3 C. »fe P. 485, Amendments have been refused in 
 cases of gross negligence: see Jelf v. Orid et al, 4 C. A P. 22. But on this 
 point the cases are not consistent: see Parks v. Edge, 1 C, «fe M, 429; Brown v. 
 Dean, 2 N. & I.I. 322. 
 
 (y) This confers a discretionary power, as to which see Lord Kenyon's ob.«er 
 vations in Wilson v. Rastall, 4 T. R. 757. As to reviewing the exercise of the 
 u dge's discretion, see section 220 and notes thereto ; see further note w to section 
 48 of this act. 
 
 
8.217.] 
 
 AMENDMENT OF VARIANCES. 
 
 809 
 
 flil 
 
 to be forthwith amended in such particular by some officer of 
 the Court, (/t) on payment of nuch costs (if any) to the other 
 party as such Court or Judge niuy think reasonable, (i) and 
 thereupon the trial shall proceed as if no such variance had 
 oppcarud. (j) 1 Wm. IV c. 1, s. 1. 
 
 SIT. (/i") When upon the trial in any civil action, or in t'lion Huch 
 
 . , ' " teiiiis ro- 
 
 aiiy iiiforniation in the nature of a quo warranto or proceed- Kp.ctinu 
 iii^s on a mandaiuus, before any Court of Record holding inaysiom 
 Pica in civil actions, or any Judge sitting at Nisi Trius, any 
 variance appears between the proof and the recital or setting 
 forth on the record, writ or document, on which the trial is 
 proceeding, of any contract, name or other matter, (/) iu any 
 
 iron 
 iiNisuuublu. 
 
 (A) The amendment under this section must be made during tlio trial, i. e. 
 bi'fore vordict: h'oberts v. Snell, 1 M. <fe G. 577; but it seems that the judge by 
 consent may mako an amendment not applied for till after the delivery but before 
 rteovcry of the /erdict : lb. ; and the amendment should be then in fact made : 
 fcce note i' to section 219. 
 
 (i) Tlie costs of the amendment under this section are in the discretion of the 
 jii(lj;c, and his decision in this respect will certainly not be reviewed by the court: 
 Tdiuliuxon V. Bollard, 12 L. J. Q. B. 257; and see Smith v. Bmndram, 2 M. & G. 
 250; Uucsl V. Elwes, 5 A. <fc E. 118. 
 
 [j) This of course is the direct effect of the amendment, which has a retro- 
 
 epective elTect. 
 
 {k) Taken from our repealed statute 7 AVm. IV. cap. 3, s. 15, which was a tran- 
 Bcriiit of Kng. Stat. 3 <fe 4 Wm. IV. cap. 42, s. 23. 
 
 (/) Tlu> amendments authorized by the act should bo liberally allowed: Stains- 
 bun/ V. Matihewa, 4 M. & \V. 347, per Parke, B. ; Smith v. KnouelJcn, 2 M. & G. 
 5ii!; Evans v. Fri/er, 10 A. & E. 00!t. Not to be refused because of the harshness 
 of the action: Doe d. Marriott v. KJwards et al, 1 Moo. & 11. 319; see also Doe 
 d. Loscombe et al v. Clifford, 2 C «fe K. 448; or because there is a demurrer on 
 tlie record which may bo atl'ected by it: Duckworth v. Harrison, 6 M. tt W. 427; 
 nnd SCO Paler v. Baker, 3 C. B. 843, per Wilde, C. J. The amendment may be on 
 tlie very point in issue, though previous notice given that the point will be insisted 
 '^ .■ Gtn/icr V. Farrant et al, 4 Bing. N. C. 28(5 ; and though the party has gone to 
 v^'-' '.vitii the determination of contesting the statement as it original!}' stood : 
 '.'''•.i'tciil V. Scheer, 8 A. <fe E. 301. Amendment allowed by substituting for an 
 •;-'3oliit(; warrant y a warranty "except as to one foot:" Hemmini/ v. I'ani/, 6C. 
 ': ?. 580 ; by substituting a promise to guarantee for a promise to pay ; Jianburi/ 
 i tl V. Ella et al, 1 A. cfe E. (U ; by substituting a count for not occepting goods 
 for a count for goods sold: Jacob v. Kirk, 2 Moo. & 11. 223; or for a count for 
 work, labor nna materials: Clark el al v. Bulmer tt al, 11 M. & W. 213. So 
 deeliiration on a promissory note amended as to date, parties and duration : Beckett 
 (t (il V. Ijutlon, 7 M. & W. 157 ; and see Moilliet et at v J'vicill, (1 C. A 1'. 2:53. So 
 speciiil acceptance of a bill substituted for a general acceptance : I/>;/yiii.i v. Aichol.i. 
 1 i>iiwl, V. C. 551 ; see also Cattnl v. Thompson, 18 L. J. C. P. 125. Amendment 
 allowed as to statement of consideration in an action for breach of promise of niar- 
 rin^'e: Harvey v. Johnston, 17 L. J. C. P. 298; and of the consideration for a gua- 
 

 it 
 
 810 THE COMMON LAW rUOCKDUftE ACT. [s. 217, 
 
 particular or particulars, in the judgment of such Court or 
 
 rantee : Dimmotk et al v. Slurla, 14 M. <b W. (758 ; T/ie Pacific Sleam Navi'/ation 
 Co. V. Lewit, 16 M. (b W. 783. In debt on bond amount of pennlty nmi'ndi-d ; Udl 
 et al V. Salt, 2 C. A M. 4'i(», So in caso for n frnudulcnt niisropi'cscntnlioii, vnri. 
 nnco ns to rpproaentntion amended: ilath v. Dennham, 1 Moo. <Jj 11. 41:J. So in 
 nn action ngninst carrier's contract to carry altered to one to forward : rarr;/ v. 
 Fairhurst et al, 2 C. M. «fe R. I'JO. Amendment allowed in the terinn of a lU-miso 
 in an avowry in replevin: Leader v. Smith, 1 U. C. Q. B. 366. So amendments 
 allowed of variances in actions for libel and slander: Smith v. Knowddm, 2 M, 
 1% G. 661 ; Jenkint v. rhillipi, 9 C. «fe P. 760; Southee v. Denny, 17 L. J. Kx. 151 ; 
 Pater v. Baker, 3 C. B. 866 ; Jackion v. Simpson, 4 U. C. Q. B. 287. So in n ]>li« 
 of usury as to dates and amount: Wright v. Marrallt, 8 U. C. Q. B. 611. So in 
 the nari'ie of a parish: Doe d. Marriott v. Edwards, 6 C. «fe P. 208. The dny of n 
 dennse: Doe d. Edwards v. Leach, 3 Scott N. 11. 501; Doe d. Simpson v. Hall, 
 
 6 M. ife a. 795 ; Doe d. Sinclair v. Arnold, H. T. 4 Vic. MS 11. A H. l)i{j. '• Amend- 
 ment," ii. 8. Tho Christian name of one of the lessors of the plnintifT in eject- 
 raent: J)oe d. Miller et al v. Rogers, 1 C. <fe K. 39i>; Doe d. Ausman v. Munro, 
 1 U. C. Q. B. ICO. So in trespass, the name of the close : Howell v. Thomas et al. 
 
 7 C. «fe P. 342 ; but see Doe v. Jioe, Dra. Rep. 170 ; or other description of the close: 
 Stanton et al v. Windeat, 1 U. C. Q. B. 30. An avowry under 11 Geo. II, cii]). 11), 
 8. 22, converted into an avowry at common law: Roberts v. Snell, 1 M. (t G. 57. 
 see further Ward v. Pearson, 5 M. <fe W. 16; Ivet/ v. I'ounff, 1 Moo. & it. 545; 
 0-Uidwell V. Steggall, 5 Bing. N. C. 733; Read v. Dunsmore, 9 C. & P. 688; Nalder 
 V. liatts, 1 1>. «fe L. 700. Names of parties not served struck out of a declaration: 
 Zuvilz V. Hoover, M. T. 1 Vic. MS. R. «fe II. Dig. "Amendment," ii. 1. Substitu- 
 tion of " promise and undertaking" for " promises and undertaking.s:" Church v. 
 Barnhart, Dra. Rep. 456. So variance between pleadings and record produced; 
 Lawrence et al v. Hardy, T. T. 3 & 4 Vic. MS. R. &. II. Dig. " Amendinunt," ii, 7, 
 But where by the introduction or oraiss'on of facts, parties, terms, .or otherwise, nn 
 entirely different transaction from that stated would be substituted, the ameiuliiient 
 is generally refused : David v. Preece et al, 5 Q. B. 440 ; Boucher y. Murray, Q. Ii. 
 362; Doe d. Anderson et al y. Errington, 1 U. C. Q. B. 159; Doe d. Cuvillierel al 
 v. James, 4 U. C. Q. B. 490. It is an objection to an amendment that it will 
 introduce an entirely new contract or new breach, and require the pleas to be 
 remodelled: Brashier v. Jackson, 6 M. «fe W. 649; or occasion a different set of 
 issues : Callandar v. Dittrich, 4 M. «& G. 68. Thus where a demise ond breach of 
 agreement for quiet enjoyment were stated, it was held that tho judge luid no 
 power to treat tho agreement as for a future lease, with a breach in the defect of 
 title to demise : Brashier v. Jackson, 6 M. & W. 549. So where several defendants 
 sued in contract, and no evidence against some, amendment by striking out names 
 of latter refused: Cooper y. Whitehouse et al, 6 C. & P. 545. So whore wife of 
 plaintiff inii)roperly jf>ined : Rischmuller et al v. Uberhavst. 10 U. C. Q.B. 612. But 
 see now section 65, et soq. of this oct. On a plea of nul tiel record in debt on a. re- 
 cognizance of bail, a variance in amount of judgment recovered refused : Davis v, 
 Dunn. 1 Dowl. N.S. 317; see also Hopkins v. Francis, 13 M. <fe W. 668. So alter- 
 ation of names to a contract set up by a plea refused : The Bank of British Nurih 
 America v. Shertvood, 6 U. C. Q. B. 552. Amendment by adding a count refused: 
 Henderson v. Harper, 1 U. C. Q. B. 528. It has been held that tho ju('g ■ at nisi 
 prius has no power to supply omissions, as where in trespass for taking " mirrors 
 and hundkorchiefs," there was a justification as to the mirrors but none a^ to tlio 
 handkerchiefs: Johny. Currie, 6 0. «feP. 618; and nee Doe d. Parsonsy. lleotker, 
 
 8 M. tt \V, 168; Bye v. Bower et al. Car. A M. 262 ; Doe d Poole ct al v. Errington. 
 I A. A H.75(); Frankum v. The Earl of Falmouth et al, 2 A. A E. 452; Serj mit el 
 ni V. f'li-ii'>i. 6 A. A E. 354 ; Forman v. Dances et al. Car. A M. 127 ; Knight v. M-- 
 Doiiall ct <il. 12 A. A E.438; Cooke y. Striljord, 13 M. A W. 379; Winterburny. 
 
217.] 
 
 AMENDMENT OF VARIANCES. 
 
 311 
 
 Judc'e not material to the merits of the case, (ni) and by 
 which the opposite party cannot be prejudiced in the conduct 
 of his action, prosecution or defence, (n) the Court or Judge 
 may (p) cause the record, writ or document, to bo forthwith 
 amended by some officer of the Court, or otherwise, both in 
 the part of the pleadings where the variance occurs, and in 
 every other part of the pleadings which it may become neces- 
 sary to amend, (p) on such terms as to payment of costs to 
 the other party, or postponing the trial to be had before the 
 same or another Jury, or both of payment of costs and post- 
 ponement, as such Court or Judge thinks reasonable; (q) and CrtiipCf.urt 
 in case such variance exists in some particular in the judg- th.M>' o'rd to 
 mcnt of such Court or Judge not material to the merits of lUawn. 
 the case, but such as that the opposite party may be preju- 
 diced thereby in the conduct of his action, prosecution or 
 defence, such Court or Judge may cause the same to be 
 amended, upon payment of costs to such opposite party, and 
 the withdrawal of the record or postponement of the trial, as 
 
 Brooks tt al. 2 C. A K. 16 ; Warren v. Lugger et al, 18 L. J. Ex. 266. It has been 
 iloiibteil in the Queen's Bench whetlier an amendment can be made so as to defeat 
 amotion in arrest of judgment: Atkinson v. Raleigh et al, 3 Q. B. 79; but decided 
 in the Common Pleas that it is no objection to an amendment that it may have that 
 iffect: JIarveg v. Johnston, 17 L. J. C. V. 298. In Bowers v. Nixon, 2 C. A K. 874, 
 Maule, J., expressed an opinion that the power of amendment did not apply to a 
 case in which the party had designedly framed his pleading so as to give rise to 
 the objection ; but see Whitwill v. Seheer, 8 A. <fe E. 301. An amendment which 
 will render the pleading demurrable will not be allowed : Evans v. Powis, 1 Ex. 
 6nl ; nor will an amendment, the effect of which will be contrary to justice : Corbeg 
 tt al V. Cotton et al, 8 U. C. L. J. 50. 
 
 (w) The word " merits " means the substantial merits which the parties have 
 come to try: Smith v. Knowelden, 2 M. & G. 565; The Pacific Steam Navigation 
 'o. v. Lewis, 16 M. & W. 783 ; Duckworth v. Harrison, 6 M. <fe W. 429, per Alder- 
 son, C. 
 
 (n) It is always a matter of some difficulty to ascertain whether or not tho 
 opposite party will be prejudiced b}' tho proposed amendment. It is necf'«sary 
 ia every application of the kind to look at the circumstances of the particular 
 case. One test is this — Suppose the party comes with evidence that would enable 
 liim to meet the case as it stands on the record unamended, would the same enable 
 liim to mee'^ it if amended? If so he cannot in general be prejudiced by the 
 amendment: see Gurfordv. Bayley, 3 M. «feG. 781 ; Duckworth v. Harrison, 5 M. 
 <k W. 427; Cooke v. Stratford, 13 M. «fc W. 379; Adams v, Atkinson, 9 Ir. C. L. 
 R. App. xviii. 
 
 (o) See note^ to section 216. 
 
 (p) See note A to section 216. 
 
 (?) See note i to section 216. 
 
7^ 
 
 312 
 
 ' 
 
 It' 
 
 After 
 
 uiiii'iiilnit'nt, 
 tliv trial to 
 jiriici rd HS 
 
 tlKillKll ■») 
 
 HUrli viiri- 
 
 HIK'V llll<l 
 
 u|il>uiu'eil. 
 
 On trial nt 
 iiiii jiriiis, 
 order lor 
 uiiieiicliiit'iit 
 
 THE COMMON LAW rROCEDURE ACT. [SS. 218, 219. 
 
 oforesaid, os the Court or Judge niaj tliiuk rcusunablc. (r) 
 7 Win. IV. c. 3, 8. 15. 
 
 SI18. («) In case after any amendment as oforenaid the 
 trial bo proceeded with, the same shall proceed in the same 
 mannc in all respects, both with regard to the liability of 
 witnesses to be indicted for perjury, and otherwise, as if no 
 such variance had appeared, ijt) 7 Wm. IV. c. 3, s. 15. 
 
 310. (■«) In case such trial is had at Nhi Prius, the 
 order for the amendment shall bo endorsed on the Kecord, 
 and returned therewith; (y) and thereupon such papers, 
 
 ll^l||i 
 
 (r) The first part of the Hection provides for aiiientlments in case the vnriance 
 be not material to tlie merits of tlio case, and by which the opposite party cnnnot 
 be prejudiced. The lotter part of the section allows amendments, thoufi;ii prcjii- 
 diciol to the opposite party, upon such terms ns may render tliem as little preju- 
 dicial as possible. The court will always take care that if one party obtain leave 
 to amend the other party shall not be prejudiced nor delayed thereby: AUkrs. 
 Chip, 2 Burr. 750, per Lord Mansfield ; see also Jiradworth v. Foraliuw, 10 W. ]l. 
 760 ; M'hitev. The South Eastern Railway Co. lb 664. 'An amendment is in g;eneral 
 only allowed on payment rf costs: see llaW v. Ziyow, 9Bing. 411 ; JUetcal/ev, Booth, 
 7 I>. & L. 15 ; including, if necessary, the costs of the trial : Iliggim v. 7'he Corpo- 
 ration of the Citu of Toronto, 9 U. C. L. J, 44 ; Hooker v. Gamble et al, lb. 44. The 
 court allowing the amendment has a discretionary power to fix the amount of costs; 
 see Tomlinson v. Bollard, 4 Q. B. 042 ; and the court will not review the e-xerciso of 
 such discretion : lb. Where the amendment is allowed on payment of costs, such 
 payment is a condition precedent to the amendment: see kishworlh v. Dmm, 
 16 M. & W. 440; Levy v. Drew, 6 D. A L. 807 ; Thompton et al v. Parish, 6 C. E. 
 N.S. 685 ; and as a matter of precaution it would bo well to have the rule direct 
 the payment of the costs so that payment of them may be enforced In any evciit: 
 Field V, Sawyer, 6 C. B. 71. A party giving an order is in general bound by its 
 terms: Girad v. Austen, 1 Dowl. N. S. 703 ; King v, Simmo7ids et al, 7 ti. B."289. 
 If the order be not served it may bo abandoned by the porty obtaining it: Black 
 V. Sangster, 1 C. M. & R. 521 ; Pugh v. Kerr, 6 M. «fe W, 17; and in one case il 
 was held that where the order was abandoned after service the opposite party 
 had no right to costs incurred before the abandonment, on the supposition thai 
 the order would be acted upon by the party who obtained it: Brown v. MtUiivj- 
 ton, 22 L. J. Ex. 138. If the party obtaining the order for amendment delay to 
 pay costs and to act on the order, it may be rescinded : Morlcy v. The Bank oj 
 British North America, 10 U. C. L. J. 128. 
 
 (a) Taken from our repealed Statute 7 Wm. IV. cnii. 3, s. 1 5, wliicli was n 
 transcript of Eng. Stat. 3 <fe 4 Wm. IV. cop. 42, s. 23. 
 
 {t) This is the necessary effect of on amendment which is retrospective in its 
 operation. The amendments here inte. led ore amendments ot the trial. After 
 omendment the court of Error and Appeal con only look at the amended plead 
 ings : see Mellish v. Richardson, 1 CI. & Fin. 224 ; Indermnur v. Barnes, 36 L. J. 
 C. r. 181 ; Tetley et al v. Wanless, L. R. 2 Ex. 279, />fr Willes, J. 
 
 (k) Token from our repealed Stotute 7 Wm. IV. cap. 3, s. 15, which is a tran 
 script of Eng. Stat. 3 A 4 Wm. IV. cop. 42, s. 23. 
 
 («) The amendment, if allowed at nisi prius, should be in fact made on tlie 
 record at nisi prius: Doe d. Ausnian v. Munro, 1 U. C. Q. B. 277; and leave will 
 
s, 220.] 
 
 APPEAL AGAINST AMENDMKNTS. 
 
 818 
 
 rnlls and other rcconls of tlic Court from whicli such record '," '"' ','"■ 
 
 run" •••■>» iliiisi'd cm 
 
 isKueJ, 08 it mny bo necessary to amend, shall bo nniended *.]'''' "'''•'"• 
 
 omirJinclVi O'O and the order for amnndincnt shall bo en- " <!« t" 
 
 tcreJ on the roll or other document upon wliich the trial is luror.iiiiKiy 
 had. (.r) 7 Wm. IV. c 3,8. 15. 
 
 'j'iO. (d) Any party di.ssntisfied with the decision of the raiiy.iis- 
 Juilire at Xiiti Prim, respecting his nlluwunco of any such wu^thV 
 aiiieiidnient, (h) may apply to the Court fruni which the "/"y V.",'jy 
 record is.'iued for n new trial upon that ground; (r) and in {.j.r * 
 ciifo such Court thinks the amendment improper, a new trial 
 glial! be granted accordingly, on such terms as the Court may 
 think fit, or the Court shall make such other order a.s to them 
 m;iy set'ui meet, (t/) 7 Wm. IV. c 3. s. 15. 
 
 not be !j;iven nt nisi jnuus to amend the record afterwards : McFarltne v. lirown, 
 i' f, ('. li. H. 471. Hut whfcri) a judfje's order hnd been olitnined to niter the 
 tnure fiicias to another nssizo. it is no objeetion that the trial took plaee there 
 witlidiit the allegation being in fact made: llawkint v. Patterson, 15 U. C. ti. IJ. 
 iris. 
 
 (h) ». e. Original pleadings, «tc, on files of court of which the record is a tran- 
 fcrijit. 
 
 (r) This contemi)latcs an order for the amendment at the time when granted 
 aiid that endorsed "on the roll or other document upon which the trial is had." 
 
 ('/) Taken from our repealed act 7 Wm. IV. cap. 3, s. 1.5, which is a transcript 
 cf the Eng. Stat. 3 A 4 Wm. IV. cap. 42, s. 23. 
 
 (') Tlie appeal, it will bo observed, is given respecting the allowance of the 
 Kimndiiiont, and not the refusal of it. Even as to the former the right to ni)])enl 
 from tlie exercise of the judge's discretion has been doubted: Purks v. EiJye, 1 C. 
 k M. 129. Hut in several cases it has been held that there can be no njipenl from 
 till' decision of the judge refusing the amendment : Doc d. Poole el al v. t'rrint/ton, 
 1 A. it K. 7.50 ; Whitivill v. Scheer, 8 A. A E. 309 ; Jenkins v. Phillips, <•• C. it V. 7fiC. 
 (In this jioint, however, the decisions are not consistent: see Pullen v. Sri/moitr, 
 S Dowl. P. C. 1C4; s. c. entitled Pullen v. Seavcn, 2 Gale, 132; and Jlifj'/ins v. 
 Xichnh, 7 Dowl. P. 0. 551 ; Lawrence v. Tindal, M. T. 5 Vic. 31S. R. & U. Dig. 
 "Aiiicmlment," ii. 11; Cranfurdy. Cocks et al, 6 Ex. 287; Brenuan\. houurd 
 25 L. J. Ex. 285 ; see also note w to section 48 of this act. 
 
 (c) I. e. Upon the grounds of the improper allowance of the amendment. 
 
 (if) It lias been held that a judge at nisi prius has no power to allow a ])lnintiff 
 to iuni'iul his record by filling up the proper day of nisi prius after the cau.se was 
 callfd on, and the jury called, though not sworn, and the court ordered a venire 
 dtnovo: Doe d. Benner v. Burd, 8 U. C. Q. B. 9. So it was held that the judge 
 liiid no power to add a new count supporting the cause of action in another way, 
 lilt al)andcning nothing that had been stated, and a new trial was ordered with- 
 out costs : Brown et at v. BouUon, 8 U. C. Q. B. 386. So it was held that a judge 
 at nisi piius has no power to amend a notice of title in ejectment: Morgan et al 
 T, Cook ct ul, 18 U. C. Q. B. 599. Nor to strike out the name of the wife of plain- 
 tiff, wlio was improperly joined in an action of assumpsit: RischmuUer et ux v. 
 
 m 
 
314 
 
 the: common law rBocEDURG act. 
 
 [8. 221, 
 
 ItlMto.vl of 
 
 anil ii'l- 
 
 tlll'llt, ttio 
 .liiil;;r may 
 •llrt'cl till- 
 jury tn ilti<l 
 fiL'tHii'iiiril- 
 itVA III till- 
 cviililiri', 
 
 mill If viirl- 
 nw.u III! 
 iriiMiiitcrlnl, 
 ('nil It limy 
 jrivrjiiilij. 
 liH'Ul lir- 
 iiinlliiK to 
 tliu IllUI'itll. 
 
 9SI* (t) In any such case of variance, (/) tho Court or 
 Judge, instead of causing the record to bo ainendor] n» afore- 
 said, (i/) may direct tho jury to find the f'iict or faots accord. 
 ing to tho evidence, and thereupon such Knding hIiuH be 
 stated on tho record; (h) and notwithstanding tho iindinp^bn 
 tho issue joined, if the Court in which tho action is pending 
 thinks tho variance iuimatcriul to tho merits of the cose, and 
 the misstatement such as could not have prejudiced the oppo. 
 site party in tho conduct of tho action or defence, (/) such 
 Court shall give judgment according to the very right and 
 justice of the case, (y) 7 Wm. IV. c. 3, s. IG. 
 
 
 »f fi 
 
 ^1 
 
 Uberhautt, 10 U. C, Q. B. fil2. In tho latter cnso a now trial wns ordered with- 
 out costs : 11). But now, unilor suction 222 of this act, a notico of title maybe 
 anionded : Chmheij v. Jiaimoin, 17 U. C. C. P. G29. 
 
 (e) Tniien from our reiiealed net 7 AVm. IV. cop. 3, s. Ifi, which is a transcript 
 of tho Eng, Stat. 3 A 4 Wm. IV. cap. 42, s. 24. 
 (/) I. e. Under section 216 or 217. 
 iff) As directed in sections 210 ond 217. 
 
 (A) Tliis is discretionary witii the judge, and it is presumed no apponl woiilj 
 lie from tlio exercise of liis discretion refusing to do what tliis section snys ho 
 ma}' do: see note 6 to section 2''0. Tiie section only applies where the fai.'tsliave 
 been found by tho jury for the express purpose of obtaining the judgment of the 
 court under it, and not where they have been found only for tho determination af 
 the issues on the record : Warwick v. Rogers et at, 5 M. «fe G. 840. 
 
 (i) Plaintiff declared that he was possessed of a mill, and by reason thereof was 
 entitled to the use of a certain stream for tho mill, and that the water ought to run 
 and flow to tho mill, and that defendant "wrongfully and injuriously" diviittj 
 the same. The defendant pleaded that ])laintitf was not entitled to tlio water- 
 course by reason of the possession of the mill, and also that the water ouglit not to 
 run and flow to the mill. The jury (being directed by the judge to find spt'cially) 
 found that tho defendant had diverted the stream, and prevented it from suiiplv- 
 ing water necessary for the proper enjoyment of tho plaintiff's premises ns thev 
 existed before the mill was erected, but found no right in respect to the mill. 
 Held that on this finding the variance in tho declaration was material, and -lo the 
 court refused to give judgment for plaintiff: Frankum v. Earl Falmouth et al, 2 A. 
 &, E. 452. But in a declaration for an escape, with pleos of not guilty and did not 
 arrest, where at tho trial the plaintiff's evidence showed that defendant did not 
 arrest, but had omitted to do so, tho judge refusing to amend left the question of 
 omission to the jury, who found the omission especially, and assessed the dnnian;e3 
 ot £30 ; whereupon a verdict was entered <"or the defendant on both issues and the 
 special finding indorsed en tho record. Held thnt tho variance was immaterial, 
 and did not prejudice: Guest v. Eltves, 5 A. <fe E. 118; see also Knight y. He- 
 Douall et al, 12 A. 4 E. 438; Chanter \. Lees et al, 4 M. & W. 295; s. e. in 
 error, 5 M. A W. 698; Kctchum et al v, Eeady, T. T. 3 A 4 Vic. JUS. 11. & H. Dig. 
 " Amendment," ii. 6. 
 
 (y ) Tlie court has no power to impose terms in giving judgment on a special 
 finding under this section: Quest v. Elwes, 6 A. A E. 118 ; Serj'ant et al v. CAn/v. 
 lb. 364 ; unless such power be reserved to them by consent of parties : Cookt 
 V. Stratford, 13 M. A \f. 379 ; and see Perry v. Watts, 8 M. A G. 775 ; The Pacijic 
 Steam Navigation Co. v. Lewis, 16 M. A W. 783. The court in Quest v. Elm 
 
 'ik 
 
0>)') 
 
 ] 
 
 AMENDMENTS OKNERALLY. 
 
 815 
 
 <)<2tl. (^>) The Courts and every Judge thereof, and nny Tiir CMUidi 
 
 Judj.'o sitting at Alsi Prim, or for the trial of eiiusos, (/) fll'uVt'iMiko 
 may. ('") "^ "'' times, («) amend 9II defects and errors in am.ji'.iili.iiu 
 
 J A. >l' f^- ll"' "''" ''°**' ' ^" *'''** section, ordered Uip tnnstor to tnx plnintilF Ills 
 rcr.rr.il •o^l'* "f 'I'o eniiso l)"t to nllow to dc-fendant tlie coMn of tlie is^^ncn, and 
 ilint I'lii'li I'ni'ty cl'oviKl paj' liln own costR of tlie motion to enter jiul;;iueiit iiecord- 
 iii^to till! very riifht and ju«tieo of tiio caso. The jiidpment 0^ tlie court nndep 
 lh?< siilidn inny l)o reviewed in a court of error: Chatiler v. A<rc*c et al, 5 M. Jc 
 \V. riis. A tiTni in a sneeial case tlint tiie court shall bo at lilicrty to nimnd tlio 
 ii!iiiilin:.'>t irives no ndtlitional power beyond timt possessed by a jiidg<' at nisi 
 iriin: CItdfimiin et al v, Siitlon, 8 D. 4 L, Old. 
 
 (<) Tiikcri from Enj;. Stat. 16 A 10 Vic. cap, 7»'>, a. 222. Founded upon tlie first 
 rcpurt cif tliu Conitiioa Law ConimissionorH, acetion 88. 
 
 (/) y«. 1 toes this extend to tlio court of error and appeal? See Wilkinson v. 
 Shiiritt:'!, 11 Kx. ;i;i. In England the powers of nmeiulnient wore held not to 
 extHni to iiilVrior courts of record: Wickes v. (Jrovc, 2 Jur. N.S. 212; but this 
 wrtinii i^i npiilicable to countj* courts, the only inferior court of record of civil 
 ii;risilirii<iii in this Province. The title of this act ia " An act to rcfjulate the pro- 
 rtiliiri' (if llie superior courts of law, and of the county courts." 
 
 (ra) .'/".'/■ Tlio cnttctment so far is permissive, but the discretionary power 
 ofinfcrnil U to bo exercised in a liberal spirit. Nothinjy is said about review; 
 llmt is lift to tlie jjeueral law : Wilkin v. JiccJ, \!i C. 15. 2(i(», per Maiile, J. ; and the 
 ;;('n(r!il law docs not preclude a party unsuccessful before a judj;e from makinjj a 
 • ;!i>;iii)tivi' ii]ipliontion to the court ffir amendment: lb /)cr Jervis, C. J. ; Jlrennan 
 V. 11 lennU '1'^ L. .1. Ex. 28!». Ihit if the judico who makes an order under this 
 .u;i'.;i 1ms jurisdiction as to tho subject matter of tho order, then whether he 
 iiiiik'S il ii;^litly or wroiiijly it is not in {;:cneral for the court to interfere: Emery 
 V. 11'./. (Y, '.I l-lx. 242, athrmcd in 10 Ex. 'JOl ; Jirenmn v. Howard, 25 L. J. Ex. 
 
 ; Onchcell V. Rimell, 20 L. J. Ex. 1)4. 
 
 (n) The ]iower is at all times to amend. The amendment may be made at 
 any timt' Int'ire, ut, or after the trial: sei; Morifin v. i'lke, 2.") i/. <t E(|. 2>vl ; and 
 altlmii^'li ili'l.'iy may be a ground for refusiii<r an anuMulment on tho cvo iif a trial, 
 it is iiii ti'dund for ulliiiiately ret'iisiiij;' it, unless it would involve some preju- 
 liici'to tiio opposite party, as by rea.son of the absence or death of a witness: 
 Tncht V, .hinnan, 25 L. tt E(|. 414. The court has power after n trial ujion a 
 riutiiin fur jii(ly;ment non ob.ttunle veredicto, or for a new trial to amend a (iefeot 
 in .1 iili'iiiliiii;, so us to raise the real ijuestion in controversy, thouj^h no advantage 
 \vii< tiikcii of an oifer to allow ameiidmenta at the trial: I'arsons v. AUxaiuler, 
 5 El. iV li. 'JOU. At tho trial it appeared that detendant entered a gaming house, 
 ami till ri' lust at billiards £05, for which ho gave an I.O.U. and eubseqiieiitly sent 
 [ilimititf nil unstamped cheque. The cheque was not received in evidence. Tho 
 jiiilso intimated generally that he would make what amendments were ncc. ssary ; 
 iii-itlicr ]iaity asking for an amendment, the question was left to the jiirj* whether 
 tlie iii'CiiUiit was stated of money lost at gambling. The jury found for tho 
 afiiiiliint. Held that the court in banc had, without consent, power to amend 
 tliejilca by making it apply to an account stated concerning the consideration 
 (f the ilu(|ue, so as to raise on the record tho question really tried : Ih. The 
 pwiT to iiiiiend after trial by the addition of a plea was doubtful: Metzner v. 
 U'Aujn. !!:{ L. T. Hep. 22; Chamleij v. Grundy, 14 C. li. 614, per Jervis, C. J. 
 After trial a defendant was allowed, upon payment of costs, to amend a plea of 
 Wit (,'iiilty " bj- statute," by inserting several additional statutes iu the morgin : 
 faWri/.* V. Uodycs, 15 C. B. Y7. In ono case after a motion in arrest of judg- 
 ment and after proceedings in error for a defect in a declaration, leave was given 
 
fth 
 
 M'^ 
 
 
 f» 
 
 ( 
 
 i 
 
 5i« 
 
 ^1 -f ^ 
 "'I 
 
 
 316 THE COMMON LAW PROCEDURE ACT. [8.222, 
 
 '"•^ny^.'vU any proceeding in civil causes, (y) whether there is anyttijir 
 
 to plaintiff to amend upon paying tho costs of the motion in nrrest of judgment of 
 the proceedings in error and of the application to amend: Wilkinson v, Sharlml 
 11 Ex. 33; see further Marcanskiy. Cairns, 1 MacQ. II. L. C. 212, 766. Particn' 
 lars were amended after final judgment : Cannan et al v. Reynolds et al, 5 El. i B, 
 801. On an issue, a plea of nul tiel record, a variance between the sum recovered 
 as stated in the declaration, and that on the record, was on motion for juiljrmeD; 
 allowed to be amended according to the record: Hunter v. Emmanuel, 21 L. j, 
 C. P. 16. Where there is a manifest defect in the pleadings which has not been 
 taken advantage of at the trial, but is attempted to be taken advantage of oiu 
 motion for judgment nan obstante veredicto, or for a new trial, the court will with- 
 out hesitation amend the plep-^ings: Parsons v. Alexander, 3 W. R. 510; seoslso 
 Wilkinson v. Sliarland, 1 Jur. N.S. 405. Where plaintiff sued on an ngrcemeDt 
 by defendant to store with him, plaintiff, all defendant's wheat during the season, 
 alleging as tho consideration that the plaintiff would store it, ond would rent 
 another storehouse, and claiming damages for the expense of such renting, and al 
 the trial plaintiff's witnesses failed to prove that part relating to the storehmije, 
 the declaration was amended by striking it out. The plaintiff was then called for 
 the defence, and proved the agreement as first set out. His counsel did not ajjain 
 amend, and the jury found for the plaintiff, adding that they believed the store- 
 house to be in the contract. The court in term allowed the declaration to be 
 restored to its original form, and refused anew trial: Petriev. Tunnahill, 22U,C. 
 Q. B. 608. Where on a motion on arrest of judgment tho court below has allowed 
 an amendment, the court of error will not consider the propriety of the amendment, 
 but will decide upon the sufficiency of the plea as amended: Indeitnaury. Dmei, 
 36 L. J. C. P. 181. Amendment before C. L. P. Act allowed of fi. fa. lands after 
 sale under it by sheritF: Fleming v. ^Yilki7^son, T. T. 1 <fe 2 Vic. MS. R. k II. Lif 
 " Amendment,' i. 1. But refused after arrest as to a ea. sa. which omitted to state 
 the amount for which judgment had been recovered : Billings et al v. Rapeljettal, 
 E. T. 4 Vic. MS. R. & 11. Dig. " Amendment," i. 2. So before C. L. P. Act amend- 
 ment of ca. sa. by insertion of correct Christian name of plaintiff refused: Allim 
 V. Wagstaf, M. T. 1 Vic. MS. R. & H. Dig. " Amendment," i. 3. But nraendmont 
 of ca. re. as to address, cause of action, and teste allowed : Mgers v. Ralhbitrn. Tay. 
 Rep. 127. Fi. fa. amended so as to have relation to the day of the entry of juda; 
 nient: Andruss v. Page, Tay. Rep. 348. So amendment by sheriff of return nf.^' 
 fa. allowed : Lemoine v. Raymond, 2 U. C. Q. B. 379. So allowed after assessment 
 of contingent damages on a demurrer subsequently decided against plaiutitf: 
 Preakcnridge v. King, 4 O, S. 297; Maxwell v. Ransom, 1 U. C. Q. B. 281. Since 
 allow"-"! under like circumstances under C. L. P. Act: Frasery. Hickman, 12U.C. 
 C. P. 2l;i. Defendant allowed to amend after judgment against him on demurrer: 
 McCracv. Hamilton, M. T. 5 Vic. MS. R. & H. Dig. " Amendment," ii. H); //"f- 
 ilton V. JJavis et al, 1 U. C. Q. B. 526. But the court, in the exercise of its dis- 
 cretion, will sometimes refuse amendments in such cases : Philips v. Smilh, Dra. 
 Rep. 303 ; Metcalfe v. McKcnzie et al, 2 U. C. Q. B. 404 ; Bacon v. McBean. it d 
 4 U. C. Q. .i. 104 ; McLellan v. Rogers, 12 U. C. Q. B. 661. Amendment of record 
 allowed after appeal to the king in council: Rowandv. Tyler, 5 O.S. odO. I'ostoa 
 amended by judge's notes, and judgment by postea after appeal : Rochkau v. B'i 
 joell, 2 0. S. 3 1 9. Discontinuance allowed under very peculiar circuuistances, in 
 order to prevent the loss of a large sum of money : The f!ommcrcial Bmil! fj 
 Canada v. Cameron et a!, 17 U. C. Q. B. 237. After four term? elapsed onunJ 
 ments cannot bo made without a terms notice: Doed. Lick\. Ausman, 1 U.C. iP 
 899. Leave was refused in an action which had slept for years, during wimli 
 time defendant had died, and the statute of limitations had barred the claim: 
 Pearce v. Preston, 11 W. R. 36. 
 
 (o) The power of amendment extends to all defects and errors, not merely t« 
 declarations and pleas, and other pleadings, but to any proceeding in civil causos. 
 
22-.] 
 
 AMENDMENTS GENERALLY. 
 
 317 
 
 This will npplj' to the writs, verdict, postea, judgment, and in short nil the \ arious 
 steiis ill nil action nt law: see Gregory v. Cottertll et al, 5 El. <t 15. 571 ; nlso 
 iJW/v. ronll'thiraitc, lb. 695; llayne v. Robertson, 17 C. B. 548; Kendil ct al v. 
 ^irrdt. 18 C. V>. 17.3. Leave . ., ..mend a writ of capias isfiued in nn action for 
 se(liictii>n was jjrantcd after arrest upon the application of plaiiititf, and upon paj'- 
 tnent of co*fs, by striking out the words " in an action on i)roniises," and inserting 
 'in (in iiction on the case :" Leijear v. Lacroix, MS. Chambers, Feb. 20, 1857, per 
 Ilairiutv, J. I'pon n trial by record the court amended the declaration by insert- 
 in/tlicn'in the true date: Noble v. Chapman, 14 C. H. 400; and tlie true' amount 
 of "the (11%'iiiid judgment: Hunter y. Emmanuel, 15 C. B. 2'JO. In nn action for 
 'fri'.u'li (if contract to employ the plaintiff as an actor for three years at a weekly 
 falnrv of £8, tJie declaration claimed general c'images for a wrongful dismi^^sal ; 
 but ;!i« |iliiiiititf in his particulars of demand merely claimed £132 for four weeks' 
 !.ilar". The defendant paid £32 into court, and tlie plaintiff's attorney, under 
 the misir.!:":; impression that tlie plaintiff was entitled under that form of declara- 
 tion to recover for four weeks' salary only, took the money out of court and gave 
 nntice of taxation of costs, which were accordingly taxed and paid. Under the 
 circiimstnnces, the plaintiff's attorney having discovered his mistake within a few 
 diivs afterwards, obtained a judge's order to set aside the replication and all sub- 
 fii|U(nt proceedings, with leave to the plaintiff, upon refunding the money so paid 
 anil tlie costa, to amend his declarat'on and particulars of demand, with liberty to 
 [jlenil (Ic I. I'o being given to the defendant. JJeld order correctly made : Emery 
 V. W'distcr. 9 Ex. 242. It has been held that a judge at nisi prius may anicnd a 
 dc'iliiration by altering the form of action, for exam[)le, so as to make the deciara- 
 ti(in ill case instead of trespass: May v. Footner, 5 El. &, B. 505. Action on a 
 wntiact 1), plaintiff to deliver to defendant at C. a cargo in March, alleging as a 
 brtaili that defendant would not accept or pay for the goods. Pleas, first, non 
 c.miwpsit. and second, that plaintiff was not ready and willing to deliver nt C. in 
 Mart'li. It appeared that defendant had by letter requested plaintiff to postpone 
 tlieslii|iiiK'iit; that the ship arrived in C. on the evening of 31st March, and con- 
 Ei-iiiiciitly tiiat the cargo was not ready for delivery till April. The judge on 
 plaintiff's application amended the declaration by inserting an averment tliat, nt 
 Jeffiiilaiit's request, plaintiff delaj'ed the shipment, and that defendant promised 
 t!i (Kci'pt a delivery of tliat shipment with reasonable speed, and exonerated 
 plaintiir from delivering in March: Held properly made : Tennyson v. O'Jirkn, 
 5 El. it B. 497. Upon a plea of " no^ guilty " by statute, where the defence was 
 uiHin sevonil statutes, some of which were omitted fr( . the margin, an amend- 
 niiiit was allowed by the insertion of them: Edwards v. Hodges, 15 C. B. 477. It 
 '.viiulil seem also that a judge at nisi prius may allow a count to a declaration to be 
 oilik'il; Tujilor v. Shaiv, 1 0. L. II. 1057, p«r Lord Campbell, C. J. ; Hailes v. Marks, 
 9 W 11. 8(18, per Pollock, C. B. But this is n matter of pure discretion and not of 
 (ibliu'aiidii ; Ritchie et al v. VanGelder, 9 Ex. 7t)2 ; Bridger et al \.Gay, 23 L.T. Kep. 
 (">: ami the exercise of discretion not the subject of an appeal: Brennan v. //"irard, 
 1 11. it .V, 138. An equitable i)lea was adtled on the morning of the trial : Morris 
 V. .l////<'c, 2 K. (t F. 651. Plaintiff was al'owed to add a count for work and labour 
 at ;lie trial without terms, and defendant allowed to pay money into court on it: 
 IMmn v. TunibuH, 1 F. & F. 305. So the addition of a count in trover to an 
 action for money had and receivctl was allowed; Cornish v. Abingdon. 1 F. & F. 
 '"''-. I'lea amended by striking out averments not proved and qualifying those 
 slii.li wore proved: I'lailis v. Marks, 9 W. 11. 808. So alteration in representa- 
 ti'in ill an action for fraudulent representation: liohn v. Dnrix. A II. it N. 484. 
 t'lnumls of suspicion on a plea of justification to an action for false imprisonment 
 niiU'iiili'd ; Hades v. Marks, 7 II. »t N. 50. Where a pleading is amended, any 
 iimaul (Ii'ft.(;t8 in other parts of the pleading, rendered necessary by the amend- 
 niiiits, will ,.:.,o \,q (imended: Buckland v. Johnson, 18 Jur. 775. Declaration 
 in lik'l amended by the addition of a written letter : Saunderi v. Bate, 1 II, & 
 
 I 
 
 n 
 
318 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 
 
 090 
 
 >i ' fim 
 
 M'. 
 
 
 \'i^ > 
 
 w:^ 
 
 
 
 N. 402. Doelaration amended in notion on the ease by servant nsjainst master f. r 
 injuries: Farrer v. Gockt 2 F. <fe F. 536. Wliere in an action upon an nurceuu'iit 
 a pluinlifF obtained a verdict, and a rule was afterwards made absolute to cntefa 
 verdict for dufendant, the court under special circiftnstances and on si)eeial ternij 
 allowed tlie rule to bo amended by directing a nonsuit to be entered : Silln v 
 IloUowini, 14 C. B. N.S. 336. A writ of mandamus was amended by striking out 
 the word "company:" Regina v. The Derbyshire, <5'c. Railway Go. 3 El. A- B, 78S 
 After i)lea pleaded that iilaintiffs were not a body corporate, the court allowed 
 plaintiffs to amend by substituting the name of the director of the bank; U 
 Jianca Nazionale Sede di Torino v. Hamburger, 11 W. R. 1074. An nmuiKlnient 
 was allowed as to the indorsement upon a pluries writ of summons issued before 
 C. L. I'. Act, by altering the date of the first writ to its true date, so as to save the 
 statute of limitations: Cornish et al v. llockin, 1 El. & B. 602; s. c. 22 L. J. (2, B. 
 142; but see Bricker et al v. Ancell, 23 U. C. Q. B. 481. Notice of writ also 
 amended: Leigh v. Jiaker, 3 Jur. N.S. 668. So declaration amended by inserting 
 true diito of judgment recovered : Noble v. Chapman, 1 4 C. B. 400. In an action for 
 not accepting excuse for non-delivery allowed to be added to declaration : Tennym 
 V. O'JJnen, 5 El. & B. 497. So in an action for wrongful dismissal umeiidment may 
 be allowed by alleging a usage of dismissal on three months' notice: MtUntrx, 
 Jiollon, 23 L. J. Ex. 130. Declaration for eviction amending by alterin^j nature 
 of eviction : Carpenter v. Parker, 3 C. B. N.S. 206, Amendment allowed in eject- 
 ment by adding names of two trustees who had legal estate : Jiluke et al v. Done, 
 7 II. & N. 465. By addition of a count: Cornish v. Abingdon, 1 F. & F, 502; 
 Ellnton v. Deacon, L. R. 2 C. P. 20 ; by striking out a count : Berre.tford et al v, 
 Geddes, lb. 285 ; but not by striking out all the names of parties to suit and sub- 
 Btituting new names: Robinson v. Bell, 9 U. C C. P. 21; as to assignment of 
 breacli in declaration: Carpenter v. Parker, 3 C. B. N.S. 2u6; as to special cases 
 see Notman et al v. The Anchor A-isurance Co. 6 C. B. N.S. 536; The Mersey Dock 
 and Harbour Commu.nonera v. Jones, 29 L. J. C. P. 239 ; P'nniugton v. Cankk, 
 10 W. II. 544. Non-joinder of a partner plaintiff in debt amended: Williams \. 
 Groves, 1 F. ik F. 341. Amendment by allowing representative of a dead man, 
 who never was a party to the proceedings, refused : Clay v. Oxford. L. 11. 2 
 Ex. 54. Amendment by substituting as defendants for local board of health 
 the name of their clerk refused at trial: Pryor v. The Local Board of Utalth 
 of Wetit Ham, 15 L. T. N.S. 250. Joinder in demurrer allowed to be added 
 to record at nisi prius: Boullon v. Fitzgerald et al, 1 U. C. Q. B. 476. Irregu- 
 larity in award of venire amended: Whitelaw v. Davidson, 6 U. C. Q. B. 534. So 
 mistake in demurring to right plea allowed even after verdict: Perry v. Grovir, 
 6 U. C. Q. B. 468, Amendment of verdicts: Moore v. Boyd et al, 15 U. C. C.P. 
 513; Fcize Y. Thompson, 1 Taunt. 121; Callagher v, Strobridge et al, I)ra. Rep. 
 107; Regina v. Fall et al, 1 CJ. B. 636. Even after motion in arrest of jud^'ment; 
 Oouldrich v. McDougall, 2 O.S, 212; Beasly v. Darling et uz, lb. 214; Clutdmk 
 V. McPherson, 2 U. C. Q. B. 379 ; Baldwin qui tarn v. Henderson, 4 U. C. Q. B. 361; 
 City Bank v. Eccles, 5 U. C. Q. B. 633 ; Ponton v. Moodie, 7 U. C. Q. B. 301 ; Moon 
 V. Boyd el al, 15 U. C. C. P. 513, Judgment rule amended as to amount of dam- 
 ages: Averill v. Powell, M. T. 2 Vic. MS. R. & II, Dig, " Amendment," iii. 11. 
 So by the addition of amount of costs : Wright v, Landcll, Tay. Kep. 3(.'4. So 
 name of intestate in judgment against administrator: Willard v. li'oo/w^ Dra. 
 Rep. 211. So amendment allowed as to different proceedings in consequence of 
 mistake as to cause of action: Edison v. Uogadone, M, T. 3 Vic. MS. R. <k H. Dig. 
 " Amendment," iii, 14. Addition of a count allow "d : Ellston v. Deacon, L. R. 2 C, P. 
 20. W hen a plea is in accordance with the construction put on a statute by the judge 
 at nibi prius, and leave is given to move the court, it is not necessary to amend 
 the plei. by adding the exact words of the statute: Tulley v. Corrie, 16 L. T. 
 N.S. 796. 
 
 Amendment refused where the allowance of it would be to assist the plaintiff 
 in committiug a fraud on a foreign government : Brennan r. Howard, 1 ii.t'ts. 
 
000 
 
 22.] 
 
 AMENDMENTS GENERALLY. 
 
 319 
 
 in writing to amend by or not, (j?) and whether the defect or as may iw ' 
 error bo that of the party applying to amend or not, (q) and }uuusu,.e." 
 all such amendments may bo made with or without costs, (r) 
 
 13S. In an action against a person for giving a false character, the words in the 
 declaration were "dismissed from the employment of the defendant, &c., on 
 nccoiiiit of the dishonesty, (fee," an amendment "while in the employment of the 
 defendant, &c., guilty of dishonesty" was refused: Wilkin v. Reed, 15 C. B. 192. 
 In an action for obstruction of a watercourse, where the right was traversed, an 
 iiniendmeut so as to narrow the right, was refused : Cawkwell y. Kvsnell, 26 L. J. 
 Ex. 34. Refused so as to enable plaintiff, who had failed in the cause of action 
 staleil, to recover on a diflt'erent one: Bradworth v. Forshaw, 10 W. 11. 7C0; sec 
 also I'liwii V. Adams, 1 i<'. & F. 312; Eobson v. Doyle, 18 Jur. 652. Refusal to 
 allow the question of hij^ nvay to be pleaded by way of amendment in an action 
 of trespass: Adams v. S7nith, 1 F. <fe F. 311. Though the court may amend after 
 jud;,'nient in a special case by inserting an omitted fact, they will not do so if 
 fact disputed : I'ennington v. Cardale, 10 W. R. 544 ; and the court will not allow 
 a special case to be amended by stating a point which the parties had not raised 
 fir consideration : Hills \. Hunt, 15 C. B. 1. Nor to amend the proceedings by 
 ;I:e addition of the defendant's wife where he alone is sued for the debt: Gcrrard 
 V. Gucheld, 13 C. B. N.S. 832 ; see also Bolingbroke et ux v, Kerr, L. R. 1 Ex. 222. 
 ^■or in nn action against an infant to amend an appe'arance bj- an attorney after 
 procedings in error so as to substitute an appearance by guardian: Carr v. 
 Cooper, 1 B. <t S. 230. Refused as to particulars of plaintiff's claim where the 
 nction iiad slejjt for years: Pearce v. I'reston, 11 W. R. 35. Where two of the 
 plaintifFs contracted under seal to do certain work which was done by tlieu', but 
 luit according to the agreement, and three sued for the doing of it, and plaintifis 
 Were nonsuited on the production of the contract, the nonsuit was upheld, and nn 
 amendment by striking out the name of the third lilaintiff, in order to save the 
 Statute of Limitations, was refused: Brickcr el al v. Ancell, 23 U.C. Q.B. 481. 
 Refusal to allow replication of Statute of Limitations to a plea of set-off: Braucker 
 V. Cro:ie>; 16 L. T. N. S. 891. Refusal to amend a special case by the insertion 
 f'fafiiot after judgment: Ganthony v. Witten, 17 L. T. N. S. 117. So amendment 
 of mil' nisi refused after it was discharged : Kynuiard v. Leslie, 12 Jur. N. S. 408. 
 A judge at nisi prius has no power to strike out a plea to which there is a 
 deniiirrer: Thovias v. Walters, 22 L. T. Rep. 200. Misjoinder not a "defect or 
 error" such as contemplated : Robson v. Doyle et al, 3 El. & B. 398. Application 
 must ue made under ss, 63 to 68. 
 
 [v) Formerly judges at nisi prius could only amond the record when there was 
 eoniethiii}!; in writing or in print to amend by : see ss. 216, 217, and notes thereto. 
 This section is an extension of that law. 
 
 (?) An amendment may be re-amended or annulled: Morgan et al y. Pike, 
 11 C. B. 479; I'etrie v. Tannahill, 22 U. C. Q. W. 008. 
 
 (r) Every pleading is to be taken subject Id such amendments as the law as it 
 DOW stands permits the court or judge to mukc: Buckland v. Johnson, 15 C. B. 
 \ii,\)er Maule, J. A discretion must be exercised in each case in view of all the 
 (■ireumstiinces of the case ; and with reference to terms, the case should bo disposed 
 "f upon full consideration of such circumstances. If an order for leave to amend 
 y abandoned after service, the opposite party has in general no riglit to costs 
 incurred before the abandonment on the supposition that the order would be 
 «cted upcn by ihe party obtaining it: Brown v. Millington, 22 L. J. Ex. 138. 
 ^\wK defencfant must have known throughout what was the material question 
 in dispute, notwithstanding some defect in the pleadings, he is not entitled to the 
 Mats 01 amendment: Buckland v. Johnson, 15 C. B. 145 ; St. Losky et al v. Green 
 ""'■ 9 C. B. N.S. 370; b. c. 8 L. T. N.S. 297. Where judgment was given for the 
 
 '^'\-mm 
 
 
P' 
 
 1 
 
 i: 
 
 ft? 
 
 f > 
 
 320 THE COMMON LAW PROCEDURE ACT. [s. 222. 
 
 and upon such terms as to the Court or Judge scotns fit, ($) 
 
 plaintiff on demurrer to defendant's pleas with costs, which costs were to include 
 tiie costs of the day for the lust assizes, the cause having been made a rcmanei, the 
 court on discovering that the defendant had a cross action against the plaintiff at 
 the same assize, of which they were not aware at the time they gave their fornwr 
 judgment, and that the causes had by consent of both parties been made remantti 
 allowed the amendment to be made on payment of the costs of the demurrer onlv; 
 McKcnzie v. Gibson, 1 U. C. Q. B. 527. Semble that under any circumstance 
 this would have been the proper course : lb. Plaintiff declared against defendant 
 as a stockholder in a railway, to which defendant pleaded and denuu-rcd. The 
 issues in fact were first tried, and resulted in a verdict for the plaintiff, with leave 
 to defendant to move 'to enter a nonsuit, which rule was taken out during tlie 
 same term in which the demurrer was set down for argument, and upon the latter 
 being called on for argument plaintiff asked leave to amend, which was granted 
 on payment of costs. An amended declaration was afterwards served, and the 
 defendant's costs were taxed by the master upon the amendment, and the costs 
 of the issues in fact and rule nisi disallowed. Held that defendant was entitled to 
 all the costs of the demurrer and application to amend and of the costs in clinm- 
 bers, and of the application for revision: Fraser v. Hickman, 12 U. C. C. P. 213, 
 "Where in an action on two promissory notes there was at the trial a variance 
 between the defendant's proof and his plea, and amendments though necessary to 
 the determination of the real question in controversy between the parties were 
 refused, and plaintiffs in consequence had a verdict, the court, upon the application 
 of defendants, directed the amendments to be made and ordered a new trial, costs, 
 including the costs of the rule, to abide the event : Bank of Montreal v. lici/nolJi 
 et al, 24 U. C. Q. B. 381. 
 
 (a) The court always takes care that if one party to an action be allowed to 
 amend, the other party shall not be prejudiced or delaj'cd thereby; Aider v. Chip, 
 2 Burr. 755. In trials at nisi prius an amendment may in many cases make neces- 
 sary a postponement of the trial. One test of the propriety of refusing a post- 
 ponement is to see whether the party against whom the amendment is made 
 could, if the trial were postponed, get other evidence : Tennyson v. O'Brien, 5 El. 
 & B. 600, per Wightman, J. In an action on a contract an amendment of the 
 declaration was made at nisi prius for the purpose of raising the real question in 
 controversy between the parties and leave given to defendant to amend liisjilea; 
 but defendant objected to the amendment being made, and requested a postiione- 
 meut of the trial, which the judge refused ; thereupon defendant refused to alter 
 his plea and to appear further, whereupon the jury, under the direction of the 
 judge, assessed the damages. On a motion for a new trial, it was held that no 
 injustice being suggested to have been sustained by the defendant in consequence 
 of the refusal to postpone the trial, the discretion of tho judge in that respect 
 ought not to be reversed: lb. 497 ; see further White v. The South Eastern lid- 
 way Co. 10 W. R. 564; Jiradworth v. Foshaw, lb. 760; Riley v. Baxendale (t al, 
 6 II. & N. 445. The power of the court to review the decision of the judge at the 
 trial in granting or refusing an amendment under this section is very doubtful. 
 It will be observed that it is not as in case of amendments under the previous 
 sections conferred in express terms by the legislature : see s. 220 and notes there- 
 to. In Emery v. Webster, 1 Jur. N.S. 383, Coleridge, J. said: "The judge haii 
 power to make the order. This court cannot enquire whether he exereieod it 
 rightly or wrongly." In Holdan et al v. Ballantyne et al, 29 L. J. Q. B. 150, Cock- 
 burn, C. J., said : " We have no power to review the decision of the judge at the 
 trial." In Brennan v. Howard, 4 W. R. 610, Pollock, C.B., said : " I do not think we 
 have power to review the exercise of a purely discretionary authority." But 
 even if the court has the power under its common law jurisdiction it will be slow 
 to exercise it where the granting or refusing of the amendment is a matter of dis- 
 
 i^f II' ^ 
 
009 
 
 2.] 
 
 AMENDMENTS GENERALLY. 
 
 321 
 
 and all such amendments as may be necessary for the purpose 
 of determining in the existing suit the real question in con- 
 troversy between the parties, shall be so made. (/) 19 Vic. 
 c. 43, s. 291. 
 
 cretion: Morgan et al v. Pikn, H C. B. 473 ; Schuster et al v. Wheelwright, 8 C. B. 
 N. S. 383. lu Smith v. Wallbridge, 18 U. C. C. P. 184, Adam Wilson, J., said: 
 " In reviewing tiie decision of a judge we must be satisfied lie was wrong before 
 v,e can interfere, for, as has been said, ' gravely to doubt is to affirm.' " In 
 yiartyn v. Williams, I II. ife N. 817, the court disallowed an amendment made at 
 the trial on the ground that the amendment made the pleading reasonably open 
 to a demurrer. 
 
 [t) Between the language used in the commencement and that used in conclu- 
 sion of this section there is a marked distinction. The former part of the section 
 empowers courts and judges to amend all defects and errors at any time, and 
 these the court or judge viay order. But the latter part of this section relates to 
 such amendments " as may be necessary for the purpose of determining in the exist- 
 ina: suit the real question in controversy between the parties." And these latter it is 
 declared "shall be so made," While the former part of f' • section is permissive 
 as to the exercise of powers of amendment, the latter part is clearly imperative: 
 Ta'jlor V. Shaw, 21 L. T. Rep. 38, per Crompton, J. ; Ritchie et al v. Van Geldtr, 9 Ex. 
 762 ; Brennan v. Howard, 1 H. & N. 141, per Bramwell, B. ; St. Losky et al v. Green 
 tt al. 9 C. B. N.S. 375, per Byles, J. ; Cordery v. Coloin, 14 C. B. N.S. 375, per Byles, 
 J. ; Bank of Montreal v. Reynolds et al, 24 U. C. Q. B. 383, per Draper, C. J. This 
 distinction, though now firmly established, was at one time doubted : see Hughes 
 V. Bury, 1 F. &, F. 374 ; The Times Fire Assurance Co. v. Hawke, 28 L. J. Ex. 317 ; 
 JlcKenzie et al v. Van Sickles et al, 17 U. C. Q. B. 226. At one time and by some 
 jiidi^es it was supposed that the court or judge should be influenced in allowi.ig or 
 refusing an amendment by the fact that the action or defence was a hard one, or 
 contrary to certain ideas of morality which the law had not made obligatory, but 
 that notion, so far as the latter part of this section is concerned, must now be taken 
 as exploded : see Doe d. Marriott v. Edwards et al, 1 Moo. <fe II. 3 1 9 ; Wright v. Mar- 
 ralU. 8 U. C. Q. B. 511, before C. L. P. Act; Brennan \. Howard, 1 II. & N. 141, 
 fir Bramwell, B. ; Hughes v. Bury, 1 F. «fe F. 374, per Crowder, J. ; Bank of Mont- 
 nal\. Regnolds et al, 24 U. C. Q. B, 381, per Draper, C. J. Contra : McKemie 
 It al V. Vansickles et al, 17 U. C. Q. B, 227, per Robinson, C. J.; Brennan v. 
 Iloward, 1 H. <fe N. 140, ;jer Pollock, C. B., and Willes, J. All amendments neces- 
 sary to bring out the real question in controversy between tho parties should 
 he made : St. Losky et al v. Green et al, 9 C. B. N. S. 370. To determine what 
 is the substantial question between the parties is to determine not a matter of 
 law but of fact, which matter of fact must be deter...ined by the judge on a 
 careful consideration of the pleadings and evidence: Wilkin v. Reed, 16 C. B. 
 205, per Maule, J. But the statute does not contemplate amendments in every 
 matter which could by possibility be started in tho course of the trial. It has 
 been thought by some of the judges that the presiding judge is bound to make 
 an amendment as'.-etl for, if by so doing some question might be raised between 
 the parties; but this impression is clearly incorrect: lb. 192; Caivkivellv. Rus- 
 kU, 26 L. J. Ex. 34. It was intended by the C. L. P. Act to limit the powers 
 of amendment to the introduction of matters which the parties hoped and in- 
 tmded to try in the cause, and not to authorize amendments which might raise 
 questions which never were contemplated by the parties: Wilkin v. Reed, 16 C. 
 B. 206, per Maule, J. The declaration in an action for giving a false character 
 to one P. a clerk, alleged that the defendant fraudulently represented to the 
 plaintilF that the reason why ho dismissed P. from his employment was the 
 
 21 
 
 I' [Ml 
 
 
 ;ll\^m^'^'^ 
 
322 
 
 
 
 
 « 
 
 
 
 jf(4> 
 
 1 
 1 
 
 
 1 
 
 % 
 
 11 ! 
 
 TOE COMMON LAW PROCEDURE ACT. 
 COSTS OF THE DAY. (n) 
 
 [8. 223. 
 
 decrcnse of his business, and that the defendant recommended the plaintiff to try 
 P. and knowingly suppressed and concealed from plaintiff the fact that P. had 
 been dismissed from his employment on account of dishonesty. At the trial it 
 appeared that P. had been guilty of dishonesty while in the defendant's employ. 
 tnent, but that defendant had not mentioned that fact to plaintiff when he recom. 
 mended him to try P. It further appeared, however, that P, had not been 
 dismissed from the defendant's employment on account of his dishonesty, but 
 really for tlie reason which defendant had assigned to plaintiff. The jutlj^e at 
 the trial refused to allow the declaration to be amended, by inserting an allega- 
 tion " that P. whilst in the defendant's employment, was guilty of dislionesty," 
 instead of the allegation "that P. had been dismissed from the employment of the 
 defendant on account of dishonesty." Held that the amendment was properlv 
 refused — the matter in controversy between the parties being not whether the 
 defendant had fraudulently suppressed the fact that P. had been guilty of dis 
 honesty, but whether ho had given the true reason for having dismissed him; 
 Wilkin v. Keed, 16 C. B. 192. So an amendment of a special case for the purpose 
 of letting in a question neither considered nor presented by the parties for con- 
 sideration, was refused: Hilli v. Hunt, 15 C. B. 1. Again, to hold that a judge 
 is bound to add a new plea whenever it is necessary to let in the defence as it 
 appears upon the evidence would be to put an end to trial by jury altogether. 
 Ko man could ever know what case he was going to meet : Taylor v. SAitit, 
 21 L. T. Rep. 68; Charnley v. Grundy, 14 C. B. 608 ; Corby et al v. Cotton tlal, 
 3 U. C. L. J. 60. The statute does not render it imperative on the court or a 
 judge to allow one plea to be substituted for another: Ritchie et al v. Fon 
 Gelder, 9 Ex. 762. Where the defendant pleaded never indebted to an action 
 for money lent, and issue was joined thereon, the court, in the exercise of 
 discretion, refused to allow the defendant to substitute a plea that the money 
 was lent for the purpose of purchasing shai'cs in a foreign lottery and rtselling 
 them in England : lb. But suppose the judge at nisi prius refuses to make an 
 amendment where by law he is bound to make one, what is the remedy? If 
 the court simply grant a new trial they send the parties down to try a question 
 which is not that in dispute I There is a better remedy. If the judge at the trial 
 improperly refuse to amend, the party aggrieved by his refusal can go directly to 
 the court and make a substantive application for an amendment, and ask the court 
 to grant it by virtue of its general jurisdiction : Brenvan v. Howard, 1 H. & N. 141. 
 per Bramwell, B. ; and this was the course adopted with success in The Bank of j 
 Montreal v. Reynolds et al, 24 E. C. Q. B. 381. Perhaps also the judge refusing to 
 amend could be prevailed upon to direct the jury to find the fact or facts accord- 
 ing to the evidence, and state the finding on the record, so that the court, not- 
 withstanding the finding on the issues joined, where the alleged variance is 
 immaterial to the merits of the case, and the misstatement such as could not have 
 prejudiced the opposite party in the conduct of his action or defence would give 
 judgment according to the very right and justice of the case: see section 221 and I 
 notes thereto. Tlie latter course would do away with the necessity either of 
 amendment or new trial, and so bo a considerable saving of costs to the parties 
 aifectod thereby. 
 
 (w) From a very early period there has been some rule of practice to enable « 
 defendant to get rid of an action commenced against him, which plaintiff does j 
 'jot think proper to bring to trial. The provision at common law was trial by I 
 . ?oviso — a mode of procedure so called because of a proviso inserted in the I 
 rmtrc /acid*, as follows: "And have then there the names of the persons anil 
 this writ, provided always that if two writs should thereupon come to you, oneofl 
 them only you return and execute." And this for a long time was the only model 
 by which defendant could obtain indemnity for his expenses or have tried aoj 
 
$s. 
 
 2:^3. 224.] 
 
 COSTS OF THE DAY. 
 
 323 
 
 tiff to try 
 
 it P. had 
 
 le trial it 
 
 B employ- 
 he recom. 
 not been 
 
 nesty, but 
 
 3 judge al 
 an allega- 
 
 shonesty," 
 
 naent of tlie 
 
 i8 properly 
 
 'hether tlie 
 
 lilty of dis- 
 
 lisaed him: 
 
 the purpose 
 
 Aes for con- 
 hat a judge 
 
 efence as it 
 
 ■ altogether. 
 
 lor y. Shifi, 
 Cotton tt fll, 
 
 e court or a 
 
 et al V, Van 
 to an action 
 
 ) exercise of 
 
 ^t the money 
 
 nd rtsellin; 
 
 to make an 
 
 remedy? H 
 
 [ry a question 
 
 ta at the trial 
 
 jro directly to 
 
 ask the court 
 
 II.&N.UI. 
 
 The /J(in*«' 
 
 ge refusing to 
 
 > facts accord- 
 [he court, not- 
 d variance is 
 muld not have 
 Ice would give 
 iction 221 mi 
 isity either ol 
 to the parties 
 
 •i«23. (a) The Act of the Parliauieut of Great Britain, The BritUh 
 
 ■^ Act of 14 
 
 casiic'il in the fourteenth year of the reign of King George Geo. ii. c. 
 the Sucoiul, intituled, An Art to prevent inconveniences jrom be in force 
 (hltil/s of causes after issue Joined, (b) so far as the same re- 
 lates to judgment as in case of a nonsuit, shiill not be in force 
 ill Upper Canada, (c) 19 Vic. c. 43, s. 149. 
 
 334. (<0 In case a notice of trial or assessment be Costs of the 
 given (e) and not duly countermanded, (/) and in case the viJed for. 
 party who gave the notice of trial or assessment do not bring 
 the issue to trial or assess the damages, (g) such party phall 
 for such default pay the costs of the day to tlie party to whom 
 such notice was given, (h) 'Z Geo. IV. c. 1, s. 36 ; 19 Vio. 
 c. 43, s. 148. 
 
 action wliich was kept unjustly hanging over him. Trial by proviso is still the 
 only means of forcing an actual trial of the niotter litigated. As to indemnity 
 for expenses incurred in consequence of plaintiffs neglect to proceed to trial 
 according to notice, technically called " costs of the day," a more summary pro- 
 ceeding was enacted by Stat. 14 Geo. II. cap. 17. This statute enabled a defen- 
 dant ill certain cases, upon showing the default of plaintiff to move the court for 
 "judgment as in case of a nonsuit," the effect of which if allowed was to give 
 him costs as if plaintiff had been in fact nonsuited. But this proceeding, though 
 an improvement upon the common law mode of " trial by proviso," has been itself 
 found susceptible of beneficial alteration. The enactments following are intended 
 to simplify the mode of procedure in such cases and thus lessen the expense of 
 obtaining judgment as in case of a nonsuit. 
 
 («J Taken from Eng. Stat. 15 «fe 16 Vic. cap. 16, a. 100. 
 
 (6) Eng. Stat. 14 Geo. II. cap. 17. 
 
 (c) The provisions of 14 Geo. II. cap. 17, are repealed as to judgment in case 
 of a non.suit witiiout any exception as to pending actions : Doe d. Leigh v. Holt, 
 8 E,\-. 180, per Alderson, B. ; see also Morgan v. Jones, 8 Ex. 128. The common 
 law riijlit to take down a cause by proviso is expressly preserved by Eng. C. L. 
 
 P. Act 1«52, s. 116. 
 
 (d) Taken from our old King's Bench Act, cap. 1, s. 36. 
 
 {() See section 201 and notes thereto. 
 
 {/) Where there has been a countermand of notice of trial defendant is not 
 ontitk'd to any costs of the day : Inein v. Meenaghan, 3 Ir. L. 11. 285. 
 
 [fj) It is now settled that the costs occasioned by the cause being made a 
 remanet are costs in the cause, and go to the party who ultimately succeeds : 
 Bmtley v. Carver et a/, 2 C. B. 817 ; Oibbins et al v. Phillipn, 8 B. & C. 437. 
 
 {h) Costs of the day are in effect the same as those paid on the vithdrawal of 
 a record : Walker v. Lane, 3 Dowl. P. C. 504. The rule for tiiem in Upper Canada 
 was peremptory and absolute in the first instance : Chkholin v. Simpson, Dra. 
 Rep. 2. But in England the practice in this respect differed in the several courts : 
 Queen's Bench, Alderleg v. Storey, 2 Dowl. N. S. 335 ; Common Pleas, Russell v. 
 H'dl, 6 Jur. 106 ; and Exchequer, Scott v. Marshall, 2 C &, 5. 60. However, in 
 
824 
 
 TIIR CiiMMON LAVr rUOCEDURE ACT. 
 
 [s. 225. 
 
 "1st" o'fuic 2:25. (0 Tho rule for costs of the clay (J) for not pro- 
 'lay on cct'tlini: to triiil or assessment pursuant to notice, or not coun. 
 
 all the courts to obtain tlio rule a motion in court by counsel wns necesaary. It 
 initrht, bu innde nt iwiy time while tiie cousu wns in existence, that is, bi-fore exe- 
 cution cxc< iiteil, throujrji several terms after default made by plaintiff: Jitdilv. 
 Lucock, 2 (". it M, 337 ; and notwitlistandinfj the lapse of four terms witiiout a step 
 in the cause nri^iit be made without a term's notice : French v. Burton, 2 U. & J. 634. 
 Tho rule may now in tiiis Province be obtained as of course without a motion in 
 court, and as to the time witliin wliich it can bo obtained the practice is the same 
 as before tlie act : section 22.). The rule being absolute in the first instance, tiie 
 <)pi)o.sit(! party is not bound to sliow cause though a notice of motion be served 
 upon him. llis course is afterwards to move to discharge the rule: Sleeman etal 
 V. The Uover.ior ami Company of the Copper Miners of England, 5 I). &, L. 451. 
 Nonpayment of costs of tlie day is not a sufficient ground for staying proceedinjs 
 until the costs are paid : Becket et al v. Ditrawl, 6 U. C. L. J. I'J ; see also Skn- 
 ilitcke V. Gilbard et al, 8 Dnwl. P. C. 290. But there may be an extreme case 
 when staying proceedings for non-payment of costs of the day would be the 
 proper <">urse. Defendant m.ay so act as to waive all benefit to the stay, even 
 if cthe.wise entitled to it: Deering v. Palmer, 6 Ir. L. R. 209, As to what con- 
 stitute costs of the day, see Pegg v. Ptgg, I Cham. R. 190; s. c. 7 U. C. Q. B. 220. 
 Costs of a special jury not costs of the day : Whitehead v. Brown, 2 0. S. 345. As 
 to when defendant is entitled to costs of the day, see noto^' infra. 
 
 (»■) Taken from Eng. Stat. 15 <t 16 Vic. cop, 76, s. 99. 
 
 [j) The following is the rule made use of in our court of Queen's Bench. 
 " Upon reading tlie affidavit of, <fec., it is ordered that the attorneys of both par- 
 ties shall attend the master, and he shall examine the matter and tax the defen- 
 dant's costs, for that the plaintiff hath not proceeded to trial pursuant to his 
 notice, wliich costs when taxed shall be paid by tho plaintiff if it shall appear to 
 the master that costs ought to be paid." Sucli a rule must be issued from the 
 jirincipal office in Toronto. Deputies have no power to issue it: While el ah; 
 Shire, 7 U. C. L. J. 206. Tlie rule will not be granted with a stay of proceedings: 
 Jiaqer v. (hitl.ill, 3 M. & W, fiU ; Gibhs v. Goks, 7 Dowl, P. C. 325 ; Friden\. Bran, 
 a Dowl. P. C. 329. 
 
 The rule iu use, it will be noticed, leaves it discretionary to tax the costs "if 
 it shall appear to the master that costs ought to be paid," which seems equivn- 
 lent to the common expression, " costs of the day, if any," All objections to the 
 allowance of such costs should bo taken before the master upon taxation, and not 
 reserved for a subsequent application to the court : Itainforth v. Hamer, 3 C. L. 
 R. 298. 
 
 If the record has not been entered for trial or assessment on the day for which 
 notice was given defendant, showing this establishes a joW»»a /act'e right to the 
 costs: O'Ncil v. Barnhart, 5 O. S. 453. There may be a sufficient excuse for not 
 having proceeded to trial, but it is for plaintiff to show that excuse when moving 
 to discharge the rule : Ih. And it has been held although plaintiff offered to 
 enter the record after the commission day of the assize to which defendant 
 objected, yet that the latter was entitled to costs of the day; lb, A proposalto 
 refer made after tho commission day of the assizes is clearly no sufficient excuse 
 for not having proceeded pursuant to notice : Fatonv. Shtickhurgh, 2 Dowl, P. C, 
 624. And where tlio cause was with consent of defendant entered after the com- 
 mission day, although no notice of trial had been given, defendant was considered 
 entitled to his costs : Doe d. Tenbroek v. Cole, H. T. 6 Vic. MS. R. & U. Dig. 
 " Costs," ii. 6. But where plaintiff having given notice did not enter his record 1 
 in time and defendant ogreed to go to trial if he were ready, and after having j 
 ^detained the plaintiff's witnesses more than a week, at last determined not to go , 
 
S. 225] RULE FOB COSTS OF THE DAY. 
 
 tornianding in sufiBcicnt time, may be drawn up on affida- 
 
 325 
 
 to trini, lio was refused costs : Crawford v. Cobhledike, M. T. 5 Wni. IV. MS. Ih. 
 "Cofts," ii. 3. Where a cause not n-iuly in its turn was put to tlic foot of the 
 (locki't with tlic consent of defenJarit and not afterwards tried, coats were refused : 
 Bank of L'jipcr Canada v. Covert et at, M. T. fi Wm. IV. Jh. "Cosle," ii. r.. Costs 
 wiTt' allowed to a defendant wlio by agreement with plaintiff accepted short notice 
 of trial, wliere the latter did not proceed pursuant to his notice : //arrix v. JInu^ 
 kiiii, 3 0. S. 112. So where plaintiff's attorney sent notice of counterniaud to his 
 airent, but it arrived too late for service : Spafford v. Bnfhnudn, 4 O. S. 325. 
 Wlai"' after the jiU'y was sworn in an ejectment case, the defendant objected thai 
 l\\{:jiirnta was defective, and the judge being of that opinion, and defendant refus- 
 ing to consent to an amendment, the judge discharjred tlie jury, the def'-ndant was 
 retiised co.sfs of the day: Doe d. Crooks et vx. v. CummingK, 2 U. C. (i. U. 38l>. In 
 thi.^ case, though jjlaintiff failed in proceeding to trial according to notice, it is 
 obvious that the cause of failure arose from the defendant's own objection afttr 
 the jury was sworn and his refusal to consent to an amendment. The defendant 
 (lid not wish tlie trial to go on, but strove to frustrate and render abortive the 
 liliiintifrs desire to proceed, and having succeeded in his endeavour, it was right 
 to hold that he should not afterwards be allowed to complain of having been put 
 to costs on the occasion : Ih. Wherever it appears that plaintiff, though read}- 
 ftnd willing to try, has been prevented solely by default of defendant, in all pro- 
 baljility with a view to costs of the day, the court will refuse them : Pope v. Flem- 
 iiig, 1 L. M. <k P. 272 ; see also Slecman et al v. The Governor and Companif of the. 
 Copper Mines of England, 17 L. J. Q. B. 113. Not only upon the authority of 
 decided cases but upon principle plaintiff ought not to be asked to pay costs not 
 occasioned by his own default : Waters v. Weatherby, 3 Dowl. P. C. 328 ; Brett v. 
 Slum, 1 D. & L. 140. Although neither party appear when the cause is called on 
 for trial and is in consequence siruck out of the docket, still if defendant can show 
 that any costs of the day have been incurred by him he may recover them : AUolt 
 V. beam-oft, 4 D. A L. 327 ; ^Vhite et al v. Hhire, 7 U. C. L.J. 206. But the better 
 opinion is now contrary to the ruling of this case : Morgan v. Fernyhough, 1 1 Ex. 
 2ii5 ; Vrnfta v. Mc Muster et al, 9 U. C. L. J. 211. It is in fact defendant's fault that 
 lie incurred auy costs that were fruitless, because if he had been present at the 
 trial lie might have nonsuited plaintiff, and so ended theju-oceedings in the action: 
 Mvrrmn v. Fcrnyhoiigh, 11 Ex. 207, per Pollock, C. B. Costs not allowed where 
 bcth parties at Vault: Warne v. /////, 7 C. B. N.S. 726; Leech v. Gihson, 10 "\V. 11. 
 m ; Smith v. Marshall, 33 L. J. Q. B. 3S2 ; Grcenaway v. Holmes, 2 C. L. R. 745. 
 Where a plaintiff has reasonable excuse for not proceeding to trial and has been 
 piilty of no default, the defendant is not entitled to the costs of the day : Pell v. 
 Liuuell et al, L. R. 3 C. P. 44 1. The cause list is in the discretion of the presiding 
 jiidijo; lie has entire control of it, and may take the cases as he pleases; Dunn 
 V. (aihHs. 16 L. & Eq. 13T; s. c. 17 Jur. 347; and maj' postpone a trial on the 
 gronnil of the absence of a material witness of either party or for any othei- cause 
 sufficient in his opinion: Turner v. Meri/treather, 7 C. B. 2.51. And if plaintift' in- 
 stead of applying for a postponement withdraw his I'ecord, he is bound to pa\- 
 wsts of the day: Greenaimy v. Holmes, 2 C. L. R. 745; see also Skinner v. 
 ImiiIoii, Brighton and South Coast Railway Co. 1 L. M. & P. ItU. The default of 
 plaintilf it would appear must be a wilful default: Ogle v. Moff'att, Bnrncs, 133 ; 
 RixUm Union Rnihmy Co. v. Symonds, 4 Ex. 502 ; Seott v. Crosl'hiraife, G U. C. L..I. 
 I'iil ; Adshnid v. Up'on et al, 22 U. C. Q.B. 429. Where the jury, unable to agree, 
 W(-rt> dipchiugi'd by the presiding judge from giving a verdict, and plaintiff after- 
 ii'irds (liseoiitinued, it was held that defendant was not entitled to costs of the 
 dtiy: ir<(//v. London and South Western Raiheay Co. 25 L. J. Ex. 1)3. Kor would 
 piftintiff be entitled to these costs though he succeed on the subsequent trial. 
 ^\iicrovcr by the fault or defect of finding by the jury, the parties go to trial a 
 
326 
 
 THE COMMON LAW PROCEUUltE ACT. [ss. 226, 227, 
 
 '' 1 '" 
 
 iH- . 
 
 \k 
 
 ^ .■ ■/ 
 
 
 
 Hh*-- 
 
 — T#- -'y 
 
 ft 
 
 ^^^^^K^l^.^i ';\ ' 
 
 4..., 
 
 
 vit (/i*) without motion made in Court, (/) 19 Vie. c 43, 
 B. 148. 
 
 TOWN AND COUNTHY CAUHKS. 
 
 Towncaiisftg 230* (»«) In the Superior Courts, causes in wliich the 
 
 cftuses'.its-''^ venue is h»id in the United Counties of York and Peel, or in 
 
 inguiH 11'. . ^j^^ County of York alone, when no lonj;cr united with the 
 
 said County of Peel, (h) shall he called Town causes, and all 
 
 other causes shall bo called Country causes, (o) 19 Vic. c. 
 
 43, 8. 150. 
 
 If piaintiir 337. (/>) In case issue bo joined in any cause, in either 
 golo'tihii' of the Superior Courts, (q) and the PlaintiflF neglects to bring 
 uu"iiwr^' such issue on to be tried, (r) at the tiuies following, that is 
 
 = 11 
 
 ■I 1 
 
 second time, the p.irty ultimately successful is entitled only to tlio costs of the 
 trial in which he succeeds: Brown v. Clarke, 12 M. & W. 25. Failure in proceed. 
 ing to assessment of damages is, as respects costs of the day, subject to tlit- same 
 rules as failure to proceed to trial : The K'mg's College v. Mayhee, 2 U. C. Q.B. 94; 
 and has been so considered by the legislature : see section 224. 
 
 {k) There is no particular form of affidavit made necessary. It may be as fol- 
 lows: " 1. That issue was joined in this cause on, Ac. and notice of trinl given 
 thereon for the last assizes holden at, <fec. 2. That the above-named plaiiitittdid 
 not proceed to the trial of the 8ai,d action, nor countermand such notice in due 
 time according to the practice of the court." The affidavit need not nccesmily 
 show that the costs have been actually incurred by defendant: Powell v. Jmn, 
 1 D. (b L. 415 ; but in general it is incumbent upon the party applying fur costs 
 to show that costs have been incurred : Jiay v. Hharp, 4 Dowl. P. C. 354. 
 
 (l) The question as to the proper time for the issue of the rule is involved in 
 much doubt: Adshead v. Uplott et al, 22 U. C. Q. B. 429. A rule obtained dur- 
 ing the assizes is irregular; for as the judge of assize may allow t!ie record to be 
 entered at any time during the assizes, there can be no defaulc till the assizes 
 are over: per McLean, C. J. Such rule may issue in vacatio\ at any tirac(i//ff 
 the assizes for which the notice was given: per Adam Wilson, J. Tlie rule of 
 court, R. G. pr. 120, was not intended to allow a rule for costs of the day lobe 
 obtained sooner than the term following the assizes, or 'a any subsequent vacation, 
 per llagarty, J. 
 
 (m) Taken from C. L. P. Act, 1858, section 150. 
 
 (n) See statutes 25 Vic. cap. 27, and 29 & SO Vic. cap. 71, as to the separation 
 of York and Peel. 
 
 (o) Tiio C. L. P. Act, 1856, section 150, introduced into Canada a practice 
 which had long prevailed in England, of dividing cau.ses into town and comiq 
 causes. The object of the section is to prepare the way for the section follovinj, 
 in which separate provision as regards judgment for not proceeding to trial or 
 assessment ])ursuant to notice is made for each class of cases. 
 
 {p) Taken from Eng. Stat. 15 A 16 Vic. cap. 76, s. 101. 
 
 {q) Held to be retrospective: Dunn v. Coulla, 17 Jur. 347. 
 
 (r) If there be issues in fact and in law to different pleadings on the sainf 
 record, plaintiff as a general rule is not bound to go to trial on the issues ia 
 
227.] 
 
 JUDGMENT FOR NOT PROCEEDINQ TO TRIAL. 
 
 327 
 
 , a practice 
 and comini 
 B)n followin?, 
 to trial or 
 
 on the saw 
 the issues ia 
 
 to say, in Town causes (s) where issue is joined {t) in, or in nftcr Ihshh 
 the vacation before Hilary, Trinity or Michaelmas Terna, and 'r"i"im;t ifmy 
 the PlaintifiF neglects (u) to bring the issue on to be tried at to ,'ii"iiitit'r 
 
 fact until the deterrainution of the issues in law. His default can only bo rcck- 
 01 I'll from till) latter date : Duberley v. Page et al, 2 T. R. 391 ; Gordon v. Smith, 
 C Wng. N.8. 273 ; Brewer v. Pierpoint et al. E, T. Ex. 1847, Mor. Dig. 161 ; Ferguson 
 V iiahon, 2 Jur. 820; Connop el al v. Levy, 6 D. «fe L. 282; Chrisp v. Attwell, 
 1 L. M. A P. 464. Contra— /:.«acA v. Dtilmage, E. T. 3 Vic. MS, R. «fe II. Dig. 
 " Judgment in case of nonsuit," ii, 2. But after judgment on demurrer to certain 
 pleas'plaintiff is still bound to proceed to trial on the remaining pleas upon wliich 
 isisues in fact are joined: Pazton et al v. Popham et al, 10 East. 306; Martin v. 
 Sim, 6 Jur. 372. 
 
 (j) As to the distinction between town and country causes see section 226 of 
 this act. 
 
 (() It is probable that in accordance with the old practice as to judgment in 
 case of nonsuit defendant will not be entitled to enter a suggestion for judgment 
 under tliis section until the issue has been in fact completed : Heath v. B'lXiill, 
 1 Dowl, P. C. 19; Rickardt et ux. v. Middleton, 1 M. «fe G. 53; Brook v. Lloyd, 
 1 M. & W. 652 ; Martin v. Martin, 2 Bing. N. C. 240 ; Gilmore v. Mellon. 2 Dowl. 
 P. C. 632; Jackson v. Vttiny et al, 10 M. «fe W. 640 ; Pinkus v. Slurch el al, B C. B. 
 4H; Wilson v. Westbrooke, E. T. 4 Vic. MS R. <fe H. Dig. " Judgment in case of 
 nonsuit," i. 7 ; McLellan et al v. Smilh, T, T. 4 «fe 6 Vic. MS. lb ; Gibson v. Wash- 
 ington, 1 U. C. Q. B. 410; Elvige v. Boynton. lb. 279; Doe d. Anderson v. Todd et 
 al. lb. 279; McCague v. Clothier, lb. 517. The time will not begin to run till the 
 last issue is joined, where there are several issues : Crowther v. Duke, 7 Dowl, 
 P. C. 409. 
 
 (h) The right of defendant to avail himself of this provision is made to 
 
 dqicnd upon the neglect of plaintiff. Where a plaintiff proceeded at law and 
 
 in equity, and after issue joined in the action elected to proceed in equity, the 
 
 defendant was allowed to give notice under this section to the plaintiff to bring 
 
 tlie issue on to be tried : Morlimore et al v. Soares, 1 E. & E. 399. If the cause, 
 
 though regularly brought down for trial by plaintiff, be not tried, owing to no 
 
 default of plaintiff, there is no power to enter the suggestion : Mewburn v. Lang- 
 
 Itil, 3 T. R. 1 ; Henkin v. Guerss, 12 East. 247; Ham v. Greg. 6 B. &. C. 125; 
 
 timMv. BiiiUy, 2 Dowl, P. C. 113; Gilbert v. Kirkland. lb. 153; Ladbroke v. 
 
 Williams. 3 D. <fe L. 368 ; Lumley v. Dubourg, 14 M. & W. 295 ; Ilansby v. Evans, 
 
 :Dow1. P.O. 198; Spurrv. Ray'ner, lb 467; Rizzix. Foletti 5 C. B. 852; Jackson 
 
 T, Carrington, 4 Ex. 41 ; IjOWS et al v, Bott, 16 M. & W. 362 ; Rogers v. Vandereom, 
 
 4 D. it L 102; Chapman v. Heslop, 12 Q. B. 928; The. Bank of Upper Canada v. 
 
 Covert el al, M. T. 6 Wm. IV. MS. R. & H. Dig. " Judgment in case of nonsuit," 
 
 L 2; The Hank of Upper Canada v. Bethune et al. M. T. 6 Wm. IV. MS. Ih ; Brad- 
 
 1 Itiry V. Flint, M. T. 4 Vic. MS R. «fe H. Dig. lb. 4; Penniman v. Wmce. 4 O.S. 
 
 S35; Doe d. Burnside v. Hector, T. T. 4 ife 5 Vic, MS R. &, II. Dig. "Judgment 
 
 in case of nonsuit," ii. 3 ; Doe d. Dodge v. Rose, 4 U. C. Q. B. 1 74 ; Hodt^on v. 
 
 j &lmns, 6 U. C. Q. B. 626 ; Doe d. Anderson v. Todd et al 1 U. C. Q.B. 279. Indeed 
 
 if plaintiff has once brought his case down for trial though made a remanet or 
 
 result in a nonsuit or a verdict for plaintiff, which is subsequently set aside by 
 
 the court, it is a question whether defendant can avail himself of this section and 
 
 ho compel plaintiff to try a second time: see King v. Pippett, 1 T. R. 492; Broun 
 
 U.Kudd, 1 Dowl. P. C. 371 ; Gilbert v. Kirkland, 2 Dowl. P. C. 163; Ashley v, 
 
 \Fliixman, 76.697; Hawleyv. Shirly, 5 Dowl. P. C. 393; Jones v. Hoivs. lb 600; 
 
 Hmetalv. Bott, 16 M. «fe W. 362; Warren v. Smith, 5 0. S, 728; and if not 
 
:>» 
 
 
 !»! 
 
 M '''f*' 
 
 Ji'i? 
 
 
 i.j"M'' 
 
 
 328 
 
 to brIiiR In- 
 •uu tu trial, 
 
 THE COMMON LAW I'ROCKIJUIIK ACT. 
 
 [s. 227. 
 
 or bcHtro the second Assizes foUowinj; such term, (t) or if 
 I .;mc bo joined in or in tlio wicatiori before Kustcr Term, then 
 if the Pliiintilf nenlects to brin<; the issue on to be tried at or 
 before the first Assizes iifior Easter Term, (if) — and in Cuun- 
 try CHUses, (./) wliere issue is joined in, or in the vacntion 
 before Hilary or Trinity Term, and the Plaintiff nc^Iocts to 
 britij; tl»e issue on to be tried at or before the second Ashi?,^,? 
 following such Term, or if issue bo joined in, or in the vaca- 
 tion before Kaster or Michaelmas Term — and the riaintilF 
 nej-lects to brinjj; the issue on to be tried at or before the fiM 
 Assizes after such term ; or in case isi^uo bo joined in any 
 cause in any County Courts, if the PhiiiitilT ncfilccts to biini; 
 the issue on lo be tried ut the first sittinjzs of the Court after 
 issue joined, then upon such neglect in any of the Courts 
 respectively, and whether the Plaintiff has in the meantime 
 given notice of trial or not, the Defendant may give twenty 
 days' notice to the Plaintiff (//) to bring the issue on to be 
 tried at the Assizes, or sittings of the County Court next 
 after the expiration of the notice; (x') and if the Plaintiff 
 
 then ft fiirtlior qupstion is whether he has nny other rcmed}' than tlint of trial by 
 I)roviso. as to wliieli see note «, infra. 
 
 (v) Tiio court, after a prereniptory unilertaliiiiij to try at ft pnrticuhir assize 
 declined to entertain a niotioti for judgment until tlie sittings were coiieliuled, 
 because poimi/jfi/ tlie case might still be entered b}- the sitting judge: Jinrii v. Cook, 
 1 L. M. d; P. 736 ; see also AiUiead v. Upton el ul, 22 U. C. Q. B. 429. 
 
 (»•) This part of the section as to the periods fixed within which tri.ils must 
 take place in town causes, varies from the Englisli enactment, in conseciuence of 
 a difference as to the times of iiokling tlie assizes in this Province. Trinity Term 
 is now abolished : Stat. 29 <fe 30 Vic. cap. 4o, s. 2. 
 
 (x) As to country causes this provision is a vcrhnt'im copy of tho English enact- 
 ment. As to what are country causes, see section 22t). 
 
 {y) The notice intended is p. twenty days' notiee hrfore the asuizm, and nnt 
 twenty days' notice before the time for plaintiff lo give notiee of trial for tlmt 
 assizes : Jud/ciim v. Alherton, 8 El. & B. 987. The defendants' attorney may jcive 
 the twenty tlay's notice, although it is only for thi! purpose of obtaiiung Ins (iivn 
 costs: Kfiif/ht V. Gaunt, 22 L. J. Q. B. 167. It may be noticed that under lliis 
 practice plaintiff's position is a better one than that under the old pnidiec. 
 Before defendant can leiially give the twenty days' notiee, there must be siieli a 
 default on the part of the plaintiff in i)oint of time as would have entitled defiiui- 
 ant to move for judgment as in case of nonsuit. And after tho'expiration of tliat 
 notice plaintiff may now have still another assize before judgment can be obtaiiitii 
 against him under this section. 
 
 («) Wliere a defendant has given the twenty days' notice to proceed to trial, 
 tho plaintiff may come to the court, and, on satisfactorily explaining the delay, 
 obtain an extension of time: Farthing v. Casllca 2J L. J. Q. B. 107. 
 
J 
 
 .IL'DflMENT FOR NOT PROCEEDINn TO THIAL. 
 
 829 
 
 iiftcnvnrdri (n) neglects to give notice of irinl for such Assizes or 
 Sittiiiiis, "V to proceed to trial as required by the iiotii'o given 
 bv tlio Deforulant, the Defendant niny suirtrest on tlie record 
 that the Plaintiff has failed to propeed to tiiiil, nlih 'Uuh dnly 
 roquiixd so to do, (which snjz'^estion shall sIkiII not bo tni- 
 verMiblo, but only be subjoot to be set aside if untrue,) (/>) flnd 
 
 (a) Tlio word " iiftoru'nrd.s" ns licro used nionns nftcr tlio service of tlie twority 
 iliiys' iKitic'c. If nftcr tlint plaintiff do not proi'eud to trial lie la to bu in tlic same 
 gitimtion as a plaiiitifl" formerly was wiio did not proceed to trnd ut'lcr <;ivinir a 
 jici'oiiiiitory iindertakinjjf to try: Jud/eum v. Alheiioii, ',', Kl. it U. Ii87. Tlic rcconl 
 must 1)1' made iierfcct in the event of death of any of the partii.s before the eiili'y 
 of lli<!SiiKy;i'stion; Larchin et al v. Buckle. 1 L. M.'it I'. 710; J'iukus v. Sliirrli n a/, 
 5C. H. 171. The sufci^estion may bo in tliia form — And now on, Ac. thi- defendant 
 suSijcsts and <j;ives tliis honorable coert to be informed that the jdaintitf has failed 
 t(i proceed to trial, althonp^h duly required so to do. Therefore, itc. It is prc- 
 fumed that defendant will not be in a jjosltion to enter the suj^j^estion in eases 
 whiili, if decided belnre this net, he could not obtain judgment, as in case of noti- 
 puit. Tor example, where there are several defendants and issue joined only as 
 tdono; Croirl/ier el al v. Duke et al, 7 Dowl. 1'. C. 40S); Jnckson v. Ullini/ ct al, 
 21 'owl. N. S. 548; see also Spnfford v. liuchanan et al, 4 (.). S. S'iti; and this 
 n!tlioii;,'h the defendants apainst whom issue is incomplete are dead, unless that bo 
 reiiulaily sujjs^ested: Pinkus v. Sturch et al, 6 D. & L. 615; see also Cherchi el 
 «/, V. Powell et al, 6 B. <k C. 253. But one of several defendants, where all have 
 ].|i'iiiieil, iniijht obtain judgment as in case of nonsuit: Jonen v. Gibson et al, 
 5 li. it C. 7t)8 ; Bruli/e/ordv. Wiseman et al, 16 M. «fe W. 439 ; Rhodes et al v. Thinnns 
 el (il, i ]). & L. 553; though one or more have suffered judgment by default: 
 Stuart V. lioffers, 4 M. Jfc W.'649; Iladriek v. llaslop el ul, U L. J. Q. B. 442. 
 
 (i) A plaintiff moved to set aside a judgment signed under this seetion in the 
 Enj. C. L. P. Act, upon the ground that plaintiff was i)revented from trying the 
 rausr by the wrongful act of defendant, and in support of his n])plieation showed 
 tliat in compliance with the defendant's notice to bring the issue on to be tried, 
 he i live notice of trial, and on delivering the record told the associate that he had 
 kcp, it bii(;k in order that his cause might be the last in the list, as his witnesses 
 wtii' in the country, and that he gave defendant's attorney notice that he should 
 not be able to try ntil the last day of the sittings, but afterwards received a note 
 from tlic mar.-hal that it would bo taken on that day, and it was accordingly 
 taken, although an application had been made to the presiding judge for a j)08t- 
 imnenient. And /)er Coleridge, J.: "The grievance complained of is that your 
 ra-c WHS improperly taken by the ofliieer of Lord Camiibell. You niiplied to 
 Lorii Cninpbell to have it taken in a different order, and he refused your apjilica- 
 tioii. The cause list is in the discretion of the presiding judge; he has the entire 
 conduct of it, and may take the case as he j)leases. Every case is supposed to 
 be ready when it is placed in the list. I cannot interfere with Lord Campbell's 
 discretion." Rule refused: Dunn v. Coults, 17 Jur. 347. The truth or untruth 
 of the suggestion will substantially depend upon the nature and circumstances of 
 jiliiitititV's default. The presumption of neglect may be condiated by showing a 
 Mitticient excuse. The following have been held no< to be sufficient: the absence 
 of a material witness: Mufsell \. Faithful, 11 Jur. 270; inability to proceed with- 
 out tre.«h evidence: Draiue v. Russell et nx. 10 Jur. 392 ; Doe d. Rinyer v. lilois, 
 8 Dowl. P. C. 1 8. The following have been held to be sufficient : the pendency of a 
 iitfjotiation for a settlement only broken off by defendant when too late to proceed 
 to trial : Alfordy. Fellowea, 9 Dowl. P. C. 326 ; Fosbery v. Butler et al, 2 Dowl. N.S. 
 SM ; sen also )\'atkins v. Giles, 4 Dowl. P. C. 14 ; tl j pendency of a case involving 
 
330 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [S. 
 
 007 
 
 the Defendant may sign Judgment for his costs ; (c) but the 
 Court or a Judge (cc) may extend the time for proccedinj,' to 
 trial with or without terms; (</) and no rule for trial by pro- 
 
 
 
 
 
 ^^Hk 
 
 HI 
 
 
 
 1 ( ■ 
 1 J 
 
 PS 
 
 hh 
 
 ?' !■ 
 
 B.,r»f .Mi- 
 
 '■'< tw 
 
 '/•I.' •' 
 
 1 > "iiPw! 
 
 
 ^« 
 
 
 
 
 M *?»i 
 
 ? 
 
 tlio same points of law: Jlnndelhv. PatoKet/, 11 Jur. 849; the pendency of a com- 
 inisHion to exniniiie witnesses : Waddif v. Barnett, 1 5 L. J. Q.B. 8 ; Bordier v. Barndl 
 el III. 3 1). <fe L. vl70; delay at tlio request of defendant : Doe d. Steppins v. Lord, 
 L Dowl. P. C. 419; Jenkins v. Charih), lb. 197 ; Doe d. Dav'uhon et nl v. Olmor 
 9 U. C. Q. B. fi07 ; stay of proceedinirs until tJio delivery of particulars: WUkk v. 
 Gipnoii, 7 L.J. C. P. N.S. 66 ; or until security for costs : Gandellv. Molte, Ex, T.T. 
 1847, AfS. Mor. Dig. 1H7 ; a summons by defendant to put off the trial taken out 
 at so late a period that plaintiff anticipated being put to inconvenience if he pre- 
 pared for trial : Jiendcll v. Baile;/, 2 Dowl. P. C. 113; proceedings taken njjninst 
 plaintiif by defendant in chancery: Partridge v. Salter, 6 Dowl. P. C. 68; Bubson 
 V. Brockltbank, 7 Ex. 316; the thre.itcueJ insolvency of defendant; Trmmttv. 
 LatoTv, 9 Ex. 420. Upon the I'ltter { -iii^ reference may be made to Letliee v. 
 Sawi/er, 4 Jur. 74 ; Holland v. Henderson, 4 M. «fe W. 587 ; Frodsham v. Rmt, 
 
 4 Dowl. P. (\ 90; Mann v. WilUamson, 7 M. <fe W. 145 ; Smith v. Davis, 9 Dowl. 
 P. C. 50 ; Fisher v. Lediard, lb. 546 ; Topping v. Brown, lb. 682 ; Featherslone v. 
 Bourne, 2 Dowl. N.S. 389 ; Badmanv. Pne/h, i D. A L. 540; Gavin v. Allan, 21 L. 
 J. Ex. 80. So in a special jury cause that neither partj* would pray a tales: 
 Phillips V. Dance, 9 B. A C. 769, Where defendant had applied at Chambers to 
 put off the trial, and the hearing had been postponed so that the commission 
 dUy was close at hand, it was considered that plaintiff was justified in counter- 
 manding and that there was no neglect on his part: Rcmhll v. Bailey, 2 Dowl. 
 P. C. 113. 
 
 (c) The costs will be chiefly composed of costs of the day, as to which see seo- 
 tion 225. 
 
 (ct) Relative powers, see note w to section 48. 
 
 {d) The pla!!itiff may apply for the extension of time immediately after the 
 service of the notice: Farthing v. Castles, 22 L. J. Q. B. 167. The api)lication 
 should be made within the twenty days: Horner v. Spencer el al, 1 F. &, F. 412, 
 per Martin, B. But this is not imperative: Kosotti v. Hudson, L. R. 3 C. P. 293, 
 The court has no power to extend tlie time for proceeding to trial indrpnitehj 
 upon application of plaintiff under this proviso: Brid-jwatcr \ . Griffiths, J7.hir. 
 438. It is apprehended f'at the practice regulating the extention of time will be 
 in many respects analogous to the old practice of peremptory undertaking. 
 Several of the cases decided under the old, will be in point under the new i)rac- 
 tice. Whenever before this act plaintiff, by showing a reasonable excuse for not 
 proceeding to trial might discharge the rule for judgment as in case of nonsuit, 
 • upon entering into the peremptory undertaking, he will, as a general rule, liave 
 good g nds to resist an application under this act. Thus where he was pre- 
 vented » ; defendant from proceeding to trial : Ptnniman v. Wince, 4 0. S. 335 ; 
 Doe d. Anderson v. Todd et al, 1 U. C. Q.B. 279 ; where plaintiffs proceedings have 
 been stayed by an injunction from chancery : Doe d. Biirtiside v. Hector, T. T. 4 A 
 6 Vic. AIS. R. i II. Dig. " Judgment in case of nonsuit," ii. 3 ; where owing to 
 some special circumstances plaintiff is acting bona fide on the advice of counsel: 
 Armstrong v. Benjamin, 1 U. C. Q.B. 414: or where the attorney for plaintiff was 
 unable to see his client, who resided some distance from him : Richards v. Hamtr, 
 
 5 C. B. 582 ; where owing to the misconduct of ft former attorney in the cause, 
 
 fdaintiff is unprepared to try : Howard v. Crofts, 6 C. B. 620 ; where defendant 
 las tampered with plaintifTs witnesses: Bales v. O'Donahoe, 3 U. C. Q. B. 178; 
 or deceived plaintiff as to the p>'oduction of evidence which he promised to pro- 
 duce : Doe d. Bees v. Dick, 6 U. C. Q. B. 621 ; or keeps out of the way a material 
 
 mm- 
 
228.] 
 
 TKANSMISSION OF NISI PRIUS RECORDS. 
 
 331 
 
 viso shall hereafter be necessary, (e) 19 Vic. c. 43, s. 151; 
 19 Vie. c. 90, s. 15. 
 
 TKAXSMISSION AND DKlJVERY OF NISI PRIUS RECORDS, &c. 
 
 228. (/) Every Deputy Clerk of the Crown shall, within onrmMving 
 twenty-four hours after notice in writing delivered to hira in imtycicrkB 
 
 witness for plaintiff : Appleyard v. Todd, 6 M AG. 1019 ; the unexpected want of 
 a particulur witness or document: Jordan \. Martin ct vx, 8 Taunt. 104; Grrerihill 
 V .\fitthet, 6 Taunt. 150; ]Vilki7t»on v. Wiflats, 6 D. A L. 280; Motiffort \. Bond, 
 2 Dowl. P. C. 403 ; Wyatt v. Nicholh, 9 Dowl. P. C. 327 ; Doc d. De Rcimer v. Glass, 
 4 U. C. Q.B. 256; or unexpected difficulties in the way of plaintiff's proceedings : 
 Drnbiev. llmaell et ux, 10 Jur. 392; and perhaps plaintiff's sudden but temporary 
 inability to meet the expenses necessary to the support of his case : Radford v. 
 Sm'iih, 7 Dowl. P. 0. 20; Joyce v. Ellis, 6 M. A G. 691. It is presumed that even 
 if there be power under this section to grant a second extension of time, that 
 power will be rarely exercised. Under the old practice a rule for judgment after 
 a pproniptory undertaking and default was absolute in the first instance: Benliam 
 V. Shaw, Dra. Rep. 121 ; J\fa8tin v. Harrow, M.T. 2 Vic. MS. R. &, H. Dig. '• Judg- 
 ment in case of nonsuit," iv. 1 ; and against this rule plaintiff was seldom re- 
 lieved: Maltheu'son v. Ghss, 1 U. C. Q. B. 516. In one case after default in pro- 
 ceeding to trial pursuant to a peremptory undertaking where defendant obtained 
 a rule nisi for judgment, which was enlarged to be heard in Chambers, and 
 plaintiff showed cause, stating that "he had given notice of trial in pursuance of 
 liis undertaking, but that in consequence of the absence of two material and 
 necessary witnesses in the United States, he was unable to proceed to trial ; that 
 both said witnesses are now residing in Toronto, and that he will be able to pro- 
 ceed at tlie ensuing Toronto assizes, that he made efforts to obtain the presence 
 of snid witnesses, but could not succeed and that if he is compelled to commence 
 a new action many of the claims for which the action is brought will be barred 
 by the " Statute of Limitations," the peremptory undertaking was extended until 
 the then next ensuing Toronto assizes: Mailland v. Brown, 3 U. C. L. J. 49, 
 /«)• liurns, J. 
 
 (c) By the Eng. C. L. P. Act, s. 16, it is enacted that 
 
 tained shall affect the right of a defendant to take down a cause for 
 
 nothing herein con- 
 trial after 
 lefault by the plaintiff to proceed to trial according to the practice of the court." 
 The ■12nd rule of II. T. 1853, establishes the ])ractice of tiie court thereafter to be 
 tliat " no trial by proviso shall be allowed in the same term in which the default 
 (if the plaintiff has been made, and no rule for a trial by proviso shall be neccKsary." 
 (lur statute has no section similar to the 116th section of the Eng. C. L. P. Act, 
 and tlie \y,wi of the section here annotated makes statutory that which was pro- 
 vided for by rule 42 of H. T. 1853, and in part by our U. G. pr. 38. Why tl<oro 
 should be this difference between the two acts is not apparent : Snminen illc v. 
 /"//, 5 U. C. L. .1. N.S. 259, per Gwynno, J. The better opinion is that there is 
 nothing in our statute to deprive a party of his right to bring down a cause by 
 proviso: see Car.<^callen\. Moodieetnl, 2 Prac. R. 254. If our statute contemplated 
 ahoiisiiing trial by proviso altogether, and making the section here annotated a 
 substitute for It also, one would suj^.jse that instead of abolishing the rule for a 
 trial by proviso they would have abolished the trial by proviso itself: Hitnimer- 
 nlle V. Juy, 6 U. C. L. -. x-J.S. 259,/>tfr Gwynne, J. 
 
 (/) Taken from our repealed statute 14 & 15 Vic. cap. 118, s. 6, as amended 
 by 20 Vic. cap. 67, s. 3. 
 
 ^m 
 
 1 1 
 

 THE COMMON LAW PROCEDURE ACT, 
 
 [s. 228. 
 
 
 if'Ur, 
 
 
 
 of tlio Crown 
 to transmit 
 Nisi Piius 
 record to 
 Toronto, 
 scaled lip, 
 
 iiC. 
 
 Failure to 1)0 
 a contempt. 
 
 After such 
 notice, a 
 party may 
 move al- 
 tliouj^'h the 
 record be 
 
 his office, for that purpose, (//) and payment of the necessary 
 postage, enclose, seal up and transmit by post to the proper 
 principal office at Toronto, adaressed to the Clerk thereof 
 any record of xVVs/ Prius in his custody mentioned in such 
 notice, together with all exhibits filed at the trial, (A) and in 
 default thereof, (t) he may be adjudged guilty of a contempt 
 of Court, and be dealt with in the discretion of the Court 
 accordingly; (J) and if, after such notice, the Ni.4 PrltK 
 record be not in court at the time of moving any rule requir- 
 ing a reference thereto, the party moving may, on filing an 
 affidavit of the service of notice, and that the record, on 
 search, has not been found in the said principal office, (/.•) hi 
 
 (ff) The notice may bo in the following form : 
 
 In tho Q. B. do. 
 A. B. Plaintiff, 
 
 V. 
 
 C. D. Defendant. 
 
 ■ To , deputy clerk of the crown in and for the county of, &.C. 
 
 Sir — Talic notice, tiiat you are required, within twenty-four hours 
 ofter receipt of this notice, to enclose, seal up and transmit by post to tlie proper 
 principal office at Toronto, addressed to the clerk thereof, the record of nisi priu3 
 in this cause now in your custody, together with all exhibits filed at the trial. 
 Dated, Ac. E. F, Attorneij. 
 
 (/)) There must not only be tho notice in writing served on the clerk in Iiis 
 office, but payment of the necessary postage and an affidavit thereof and of search 
 to entitle the party interested to avail himself of the provisions of this section. 
 
 (i) Whenever a deputy clerk of the crown is required to transmit any roll, 
 record or paper in any cause to the principal office in Toronto, it is his duty to 
 enclose and seal up the same in an envelope and to address such enveloiie to the 
 clerk of the crown in the proper office, and he may thereupon deliver such .sealed 
 envelope to the attorney who has required the transmission thereof (tiikiiig a 
 receipt from him), or may send the siime by post: 11. G. pr. 118. 
 
 {j) Before the court would grant an attaclmient it is apprehended it \v<mlil 
 require to be satisfied, not only of the payment of necessary postage, but of the 
 personal service of the notice on the deputy clerk. 
 
 {k) The affidavit of service should be intituled in the court and cause, and may 
 be as follows: 
 
 In the Q. B. &c. 
 A. B. rUntiff, 
 
 V. 
 
 C. D. Df/emlant. 
 
 I, E. F. of Ac. make oath and say as follows : 
 
 1. That on the day of last I did personally serve , dcjuity 
 
 clerk of tlie crown in and for the county of, <fec.. witli a true copy of the notice 
 in writing hereto annexed, by handing the same to him in his office at, ite. 
 
 2. That I did at tiie same time and place pay to the said the sum of 
 
 , being the necessary postage in that behalf. 
 
68. 229, 230.] 
 
 PREPARATION OF P08TEA. 
 
 333 
 
 allowed by the Court to raove such rule without the produc- 
 tion of the Record of Nisi Prim. (0 14 & 15 Vic. c. 118, 
 8. G; 20 Vic. c. 57,8. 3. 
 
 239. (w) The said Deputy Clerks of the Crown shall, 
 after the time for the moving for new trials has expired, (n) 
 deliver to the Attorney of the party entitled to the Postea, 
 any record in their custody upon getting a receipt for the 
 same, but they shall not deliver to any party any Exhibit 
 filed, without a Judge's order to that effect, (o) 14 & 15 
 Vic. c. 118, s. 2. 
 
 230i (p) Alk-r verdict or nonsuit, the Attorney of the 
 party entitled to the Postea in the cause shall prepare the 
 same, {q) 14 & 15 Vic. c. 118, s. 4. 
 
 not in 
 Cdiiit ; first 
 iillhiK ain<la- 
 vit of notice. 
 
 Wlien and 
 liow Deputy 
 Clerks slinll 
 deliver rc- 
 e<iril or 
 exhibits to 
 Attorney or 
 parties. 
 
 Attorney 
 entitled to 
 postea to 
 prepare the 
 same. 
 
 3. Tlmt I did on the day of ■ 
 
 instant searcli in the principal office 
 
 of this honourable court iu Toronto for the said record, and was informed by tiio 
 clerk of tliis honourable court then being in the said office tliat the said record 
 liad not been received by him, <fec. (or that the said record is not to be found in 
 the said principal office). 
 
 It is apprehended tliat the latter clause of the affidavit might if necessary be 
 embodied in n separate affidavit to be mado by the person making the search in 
 Toronto. 
 
 (/) Tlie courts almost universally decline to hear motions for new trials unless 
 either the recoid be in court the time of the motion or the party applying is in 
 a position to file the affidavit or affidavits made necessary by this section. Thus 
 where a deputy clerli of the crown had been i:, due time instructed by the agents 
 of tiie defendant's attorney, though not formally notified under the statute, to for- 
 wnrd the nisi prius record to the principal office in Toronto, but had neglected to 
 di) so till die fifth day of term, the court refused a rule nisi for a new trial, although 
 t.ic judge who tried the cause entertained a very strong opinion against the jus- 
 tice of tlio verdict: Kitchin v. Mclnlyre et al, 16 U. C. C. P. 484, 
 
 (m) Taken from section 2 of our repealed act 14 & 15 Vic. cap. 118. 
 
 (»~^ Xo motion for a new trial or to enter a verdict or nonsuit, motion in arrest 
 of jiidifinent, or for judgment non obttante veredicto, shall be allowed after the ex- 
 jiiration of four days from tiie day of trial, nor in any case after the expiration of 
 term if tiie cause be tried in term, or when tiie cause is tried out of term after the 
 exjuration of tlie first four days of the ensuing term unless in eitlier case entered 
 in the list of postponed motions by leave of the court : R. G. pr. 40. 
 
 (o) Tiie duty of the deputy clerk is twofold: 1. As to the record. 2. As to 
 cxliibits filed. It is made his duty to deliver the record to tiie attorney of the 
 piuMy entitled to the postea" upon getting a receipt for tlic same; but he is not to 
 deliver tlic e.viiibits to any party witliout a judge's order to that effect. 
 
 (/') Taken from section 4 of our repealed act 14 «fe 15 Vic. cop. 118. 
 
 (?) Where plaintiff has succeeded on any part of his declaration, and the pleas 
 nn wliicli issues are found for the defendant do not go to the whole cause of action, 
 thcpluiiititf is in general entitled to the postea: Stalet/ v. Loni/, 3 Bing. N.C. 781 ; 
 
 -V 
 
 ' 'i 
 
 T 
 
 ] ^''■ 
 
 4 
 
 J i. 
 
 ¥ 
 
 tt~ ' 
 
 f » 
 
 > ii', 
 
 
 i,^ 
 
 fl 
 
 

 334 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 231. 
 
 ;j 
 
 RULES FOB NEW TRIALS, OR TO ENTER A VERDICT OR NONSUIT. (,) 
 
 blstilttMiin 831. (s) In every rule Nisi for a new trial or to enter a 
 new^WaT.^""^ vcrdict or nonsuit, (0 the grounds upon which such rule ha.s 
 
 Smith V. Brown, 5 Dowl. P. C. 730. But the plaintiff has no right to the postea 
 where he is not entitled to any costs: Grout v. Glasier, 1 Dowl. N.S. 58. In some 
 cases it may happen that plaintiff, though entitled to the postea, but not having a 
 certificate to entitle him to full costs where a certificate is necessary, may refuse 
 to enter judgment, and in such cases the defendant may apply to a judge to order 
 the delivery of the postea to him, defendant, or to attend with it to allow judg. 
 ment to be signed, and defendant may thereupon not only sign judgment for him- 
 self on his own count if entitled to do so on any count of the declaration, but may 
 sign judgment for plaintiff on the other count or counts: Taylor v. Ncsfidd, 4 El 
 &Q. 462 ; Cross v. Waterhouse, 10 U. C. L. J. 73. 
 
 (r) Motions either for a new trial or to enter a verdict or nonsuit, can only be 
 made in that court in which the suit has been commenced and carried down to 
 trial. So points, if reserved at the trial, can only be reserved for the same court: 
 see Vansiiiart v. Taylor, 4 El. & B. 910. Where the motion was by mistake made 
 in the wrong court, the right court entertained it after the expiration of the time 
 for moving: Johnson v. Wurtvick, 17 C. B. 516. But a suggestion of perjury on 
 the part of the defendant and his witnesses, and discovery of fresh evidence since 
 the expiration of the time for moving, was held to be no ground for a new trial 
 after the time for moving: Gambart v. Mayne, 14 C. B. N.S. 320. Where a plain- 
 tiff has died intestate since the trial, a new trial cannot be moved on behalf of 
 his widow or next of kin without letters of Kdministration being first taken out: 
 Lloyd v. Oyleby, 5 C. B. N. S. 667. So where pending a rule for a new trial the 
 plaintiff died, it was held that no cause could be shown against the rule until 
 there was a personal representative: S/ioman v. Allen, 1 M. <fe G. 96, note c. A 
 verdict having been found for the defendant, the plaintiff obtained a rule nisi for 
 a new trial, but defendant having died since the trial the rule was drawn up call- 
 ing upon " his h'gal representatives or their attorneys" to shew cause, and was 
 served upon the latter: Held that cause might be shewn by counsel acting for 
 the executors named in the will, though there had been no probate: Thomafw 
 Dunn, 1 C. B. 139. But where after verdict for plaintiff, with leave reserved to 
 enter a nonsuit or verdict for defeudart, defendant died before motion made, it was 
 held that the motion, with the assent of the executors, might be made in his name: 
 Freeman v. Rosher, 13 Q. B. 780; sec- also Wright v. Skinner, 17 U. C. C. P, 317, 
 
 (.«) The first part of this section is taken from Eng, Stat. 17 «t 18 Vic. cap, 125. 
 8. 33. Founded upon the second report of the Common Law Commissioners, sec. 
 tlon 25. 
 
 (f) If the verdict bo in favor of one of several defendants and against the others, 
 and the latter apply to set it aside, the rule must call upon the successful defend- 
 ants as well as the plaintiff to show cause: Belcher v. Mugnny el al. 3 D. <fe L, 70, 
 The court has no power to grant a new trial to one of several defendants upon his 
 application only when a verdict has been found in favor of the others unless they 
 assent or be male parties to the rule : Doe d Dudgeon et al v. Martin et al, 2 1), it L. 
 678 ; see further Regina v. Gomperlz et al, 9 Q. B. 824; Qu Where a sole defendant 
 has a verdict upon two issues, each of which goes to the whole cause of action, and 
 the verdict upon one of these issues is unsatisfactory, will the court, at the instance 
 of the plaintiff, grant a new trial upon the whole record, and thereby avoid the 
 verdict on the other issues ? Baxter v. Nurse, 6 M. &. G. 935. New trials will not bo 
 granted merely on the extreme right of the party applying, but only to advance 
 the substantial ends of justice: Brown v. Street, 1 U. C. Q. B. 124; Doe d Graham 
 v. Edmondson, lb. 265; see also Nevila v. Willcocks, Tay. Uep. 365; Iloneymam 
 
B. 231.] 
 
 RULES FOR NEW TRIALS, ETC, 
 
 835 
 
 Lewin, 23 L. J. Ex. 204 ; nud will not be granted when nn expensive litigation 
 would be protracted about a trifling matter: J'tlric v. Tuylor, 3 U. C. Q. K 457. 
 AVlicre a fact in issue lias been already determined by a jury, a new trial will not 
 be granted upon affidavits disclosing additional evidence, unless it be clearly 
 shown that the opposite party has set up a case of fraud or perjury: J'ialriicci v. 
 Turner, 28 L. T. Kep. 104. A new trial will not be grai.ted on aflidavits disclos- 
 in<T only corroboratory evidence : Scott v. Scott, 9 L. T. N.S. 454 ; Fuwcett v. 
 ifothersill, 14 U. C. C. P. 104 ; Regina v. Mcllroy, 15 U. C. C. P. 116. The court 
 will not in general interfere on the ground that the verdict is contrary to evidence 
 or the weight of evidence, even thougii the court or judge who tried the cause 
 would have been better satisfied with a different verdict : see Creighlon v. Cham- 
 hers, 6 U. C. O.P. 282; Brown v. Malpna, 7 U. C. C.P. 185; Nolan v. Tipping, lb. 
 624; Arthur y. Lier, 8 U. C. C. P. 180; Hawkins \. Alder, 18 C. B. 640; Scott 
 V.Scott, 9 L. T. N.S. 454; Jiegina v. ChiMs, 14 U.C. C.P. 32; Irwin v. Callwell, 
 12 Ir. C. L. R. 144. An inconsistency in the verdict of a jury is not necessaril}* a 
 ground for a new trial: EUyatt v. Ellyatt et al, 11 L. T. N.S. 44. The party mov- 
 iiw will in general be restricted to objections taken by him at nisi prius : Regina 
 V. Fick, 16 U. C. C. P. 384 ; IIM v. Shannon, E. T. 2 \\c. MS. II. & H. Dig. " New 
 Trial," xi. 5: Manners v. Boulton, M. T. 7 Vic. MS. lb. same title, xi. 7; Doe d. 
 Mcrrough et al v. Maybee, 2 U. C. Q.B. 389. But this is not an inflexible rule : see 
 Abkii v. Dale, 11 C. B. 378; Eades v. McGregor, 8 U. C. C. P. 260; Manners v. 
 Botiiton, 6 0S. 663 ; Stephens v. Allan, 2 U. C. Q. B. 282 ; Doe d. Morrough et al 
 V. Slni/bee, lb. 389; Horlor v. Carpenter, 27 L. J. C. P. 1; Jones v. T/ie Pro- 
 vincial Insurance Co. 26 L. J. C. P. 272 ; Kennedy v. Freeth, 23 U. C. Q. B. 92 ; 
 Houghton v. Thompson, 25 U. C. Q. B. 557. New trial granted for misdirection, 
 though amount involved under £1 : Ilaine v. Davey et al, 4 A. tfe E. 892. But it is 
 not every misdirection for which a new trial will be granted. Unless the misdirec- 
 tion immediately apply to the subject matter and go directly to the point which the 
 jurj- has to determine, limiting and directing their verdict in point of fact, it is unim- 
 [lortnnt with reference to the right of the suitor to a new trial : The Earl of Nurbnry 
 V. Kitchin, 7 L. T. N.S. 685, per Pollock, C. B. An expression of a wrong opinion 
 by the judge as to a matter of fact is clearly no misdirection : Greenough v. 
 I'arker, 4 L. T. N. S. 473 ; nor is the erroneous ruling as to a matter collateral 
 to the issue: Henman v. Lester, 12 C. B. N.S. 776; nor the observation of a 
 jiiiigo not calcidated improperly to sway the jury to give their verdict either one 
 way or the other: Lloyd v. Jones, 7 B. «fe S. 475. But when the misdirection 
 docs not come under any of the foregoing exceptions, the court must set aside 
 the verdict, and has no discretion to refuse to do so: Parker v. Cathcart, 17 Ir. 
 C, h. U. 778. The improper reception of evidence to explain a written contract 
 is no ground for a new trial unless it lead to misdirection: Bruff\. Conybeare, 
 IS C, B. N. S. 276 ; Spring v. Cockburn et al, 1 9 U. C. C. P. 63. Non-direction is 
 jot n ground for a newlxialunless 
 "eminence: J<ord v. E^fey, HO E. JT 
 
 Vantrria V. Braid, 8 L. T. N. S. 31. A verdict will not be set aside as perverse 
 unless the jur}', having no discretion, deci led against law and the judge's charge: 
 Brnwn V. Malpus, 7 LF. C. C. P. 185; Ai'ims v. The Great Western Railway Co. 
 li) W. U. 84 ; and it must appear that the judge laid down the law correctly, and 
 tlint the verdict as it stands is not correct: Tudd v. The Liveipool a),d Linidon 
 (iluhr Insurance Co. 18 U. C. C. P. 192. Where a plaintiff is disappointed in 
 Jiroouring testimony, he should withdraw his record or take a nonsuit, and a 
 (li'feiida.it in a like case should apply for a postponement: The Corporation of 
 
 Kourn ei uii, i v u. \j, v. i. do. i>on-uirectioa is 
 less the verd i ct be contra ry to the weigUt ot 
 r. Ex, 'io\ ; The (j)eat Western Had way Co. of 
 
 Lont/iKuil V, Cwhman, 24 U. C. Q. B. 602. If instead of doing so tlie Jjarty go 
 to trial upon weak evidence, he will rarely be relieved from an adverse verdict: 
 /'' ; see also Walcott_\L Sjojicke r el al. l^JJ. C. C . P 555. Where defendant hav- 
 ing a witness in court, did notcall him, relying ujxpu the weakness of his adver- 
 sary's case and desiring to have the last word with the jury, the court, though 
 dissatisfied with a verdict adverse to him, refused to set it aside : Ilurrell et al v. 
 
 
336 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 231. 
 
 HI */i 
 
 '. !, 
 
 been granted shall bo shortly stated therein ; («) but in case 
 Court may of any omission, the Court may permit the rule to be amended 
 amend- and servcd again on such terms as are deemed reasonable, (v) 
 "'"'^- 19 Vic. c. 43, 8. 168. ^ 
 
 Simpson et al, 22 U. C. Q. B. 65. To entitle plaintiff to move to set aside a non- 
 suit and enter a verdict for himself, it must be shown that he obtained leave for 
 that purpose from the judge at nisi prius: Treacher v. Ilinlon, i B. & AI. 413, 
 And instead of entering a verdict for him, the court may in its discretion grant a 
 new trial : Higgins v. Nichols, 7 Dowl. P. C. 551 ; Wdkins v. Bromhead et al, 7 Scott, 
 N. R. 921 ; Doe d. Wyatt v. Stagg, 5 Bing. N. C. 664. So to entitle a party to enter 
 a nonsuit, leave at nisi prius is necessary: Minchin et alv. Clement, I B. & Al. 252; 
 Rickets v. Barman, 4 Dowl. P. C, 578; and no such leave can bo reserved except 
 by consent of parties : l!'ntor v. McLean, 8 U. C. 0. P. 2()0. The court will not enter- 
 tain the applica i'jL ^v' r the verdict is for the defendant: Campbell v. The Cor- 
 poration of El. ^a, it - J. P. not reported. Where a plaintiff, in deference to 
 the judge's ruling, ■■':< t- . )nsuit, he is not precluded from afterwards movin!; 
 against it : Ilatton • . <' „.,, i1 L . C. Q. B. 177. But if the nonsuit be in deference to 
 the judge's opinion expressed, not in favour of a nonsuit but of the defendant upon 
 the evidence, there "in be no rcliof: Wood v. Bowden, 23 U.C. Q.B. 406; Tm/lvry, 
 Hose et al, 24 U. C. '4.h. 4 '1. T\i^ •>' intiff may take a nonsuit at any time before 
 the pronouncing of llie \<n '>et it\ iie jury: Van Allan v. Wigle et al, 7 U. C C. 
 • P. 459. On a nonsuit on a poiul, of iaw, </unsel, in arguing to set it aside, may 
 take advantage of every point of law: Powell v, Norris, Howe Ir. Rep. 617. Tlie 
 judge has no power to allow a record to be withdrawn after jury sworn on account 
 of the unexpected absence of a witness. In such a case plaintiff must submit to a 
 nonsuit: Swift v. Swift, 3 Ir. C. L. R. 218. Where leave is reserved at nisi priua 
 to move to enter a verdict, if the court should be of opinion that there was evi- 
 dence to go to the jury in support of an issue, reasonable evidence to maintain the 
 issue is meant, and not evidence which would merely lead to conjecture : Reid v, 
 Jloskins, 26 L. T. Rep. 149; Avery v. Bowden, lb. 119; s. c. 6 El. «fe B. QoS, 9C2, 
 973 ; Wheelton et al v. Hardisty et al, 8 El. & B. 232, 262 ; Toomey v. The London, 
 Brighton and South Coast Railway Co. 3 C. B. N. S. 146 ; Deverill v. The Grand 
 Trunk Railway Co. 25 U. C. Q. B. 617; Wright v. Skinner, 17 U. C. C. P. 317; 
 Ryder v. Wombwell, 19 L. T. N.S. 491 : Giblin v. McMullen, L. R. 2 P. C. 317. 
 
 (w) The grounds must be specifically stated in the rule. The following are 
 insufficient "on grounds set forth in affidavits filed": Drayson et al v. Andrews, 
 10 Ex. 472; "on the ground of misdirection:" Montgomery v. Dean, 7 U. C. C. P, 
 513 ; " on the grounds of objections taken at the trial, for the misdirection of the 
 learned judge at the trial, for the rejection of material evidence;" Strange v. 
 Dillon, 22 IJ. C. Q. B. 223 ; " that the instrument or chattel mortgage produced 
 at the trial of this cause, and under which the plaintiff claimed, together with 
 the several renewals thereof, and the statements, papers and affidavits to the 
 same respectively attached, and all the proceedings had and taken thereunder, 
 are informal and irregular, and not according to the consolidated statuces of 
 Upper Canada :" lb. But it has been held sufficient to state " that the verdict is 
 against law and evidence," without stating in what manner it is against evidence; 
 Cameron v. Milloy, 14 U. C. C. P. 340; and sufficient to state that "the judge's 
 direction to the jury that the plaintiff was entitled only to nominal damages was 
 wrong:" Watson v. Lane, 2 Jur. N.S. 119. 
 
 («) Where a rule stated that it was granted "on the grounds set forth in the affi- 
 davits annexed," the court permitted an amendment by striking out these words, 
 and inserting " that since the trial of this cause the plaintiffs have discovered new 
 and material evidence of a partnership between, Ac." : Drayson et al v. Andrews, 
 
3. 231. 
 
 in case 
 uended 
 )le. (k) 
 
 le a non- 
 leave for 
 Al. 413. 
 11 grant a 
 ;, 7 Scott, 
 C to enter 
 Al. 25'2; 
 ed except 
 not enter- 
 The Cor- 
 ference to 
 Is moving 
 ference to 
 dnut upon 
 ; Taylur\. 
 ime before 
 7 U. C C. 
 askle, may 
 617. The 
 on account 
 iubmit to a 
 t nisi pi'ius 
 re was evi- 
 laiutain the 
 Reid V. 
 }. 9:)3, 902, 
 'he London, 
 The Grand 
 C. P. 317; 
 0.317. 
 
 flowing are 
 J. Andrews, 
 U. C.C.P. 
 Iction of tlie 
 I Strangey. 
 |e produced 
 Lether with 
 Ivits to the 
 [thereunder, 
 statutes of 
 le verdict is 
 It evidence; 
 [the judge's 
 images was 
 
 in the affi- 
 lliese words, 
 levered new 
 Andrevs, 
 
 S. 232.] COSTS WHERE VERDICT IS AOAINST EVIDENCE. 337 
 
 232 («) If a new trial be granted on the jjround that when costs 
 the verdict is against evidence, the ccsts of the first trial shall the event 
 abide the event, unless the Court otherwise order, (b) 
 19 Vic. c. 43, s. 168. 
 
 10 Ex. 473, note b. It will, however, be prudent to state tlie grounds fullj- in the 
 first instance. The courts are not inclined to grant fresh rules ni.si containing 
 j;rounds omitted in the former rules: Robertson v. JJiirkcr, 2 ])owl. P. C. 39. 
 
 (n) Taken from C. L. P. Act 1856, s. 168, the origin of which was Eng. Stat. 
 17(t IS Vic. cnp. 125, s. 44. 
 
 {It) This provision, which is prospective only, Jeuklm v. Bctham et al, 15 C. B. 
 16S, applies where a wrong has been done through the fault of the jury. It does 
 not extend to cases where »i new trial is granted on fresh matter disclosed by affi- 
 davits. In such a case the party who succeeds on the rule shouid pay the costs of 
 his attidavits in any event: Abbott v. Bait, 1 Jur. N. S. 93. Where a new trial is 
 orck'red on the ground that tlie verdict is against the weight of the evidence, it is 
 usually only on payment of costs: I'ders v. Wallace, 5 U. C. C. P. 238; Doe d. 
 Wdkn'y. Miisseear, 6 U. C. Q. B. 455. When on the ground that verdict perverse 
 witliout costs: Loijan v. Ryan, 10 U C. Q. B. 15; Sanderson et al v. The Kingston 
 Mirine RaUtcay Co. 4 U. C. Q.B. 340. When the party who succeeds on the first 
 trial fails on the second ho neither pays nor receives the costs of the first trial : 
 i'miw V. Robimon, 1 1 Ex. 40 ; Eccles et al v. Harper, 14 M. & W. 248. Where a new 
 trial is ordered on a point not raised at the trial, it is usual to make the party apply- 
 m% pay costs : Abley v. Dale, 11 C. B. 392. But in such a case a new trial may bo 
 ordered, costs to abide the event: see Houghton v. Thompson, 25 U. L Q. B. 557; 
 Wdson v. Baird, 19 U. C. C. P. 101. In an action by a clerk against hia employer, 
 the declaration contained a special count for wrongful dismissal and the common 
 count for work and labour. The plaintiff on the first trial had a verdict on the 
 'peeial count. A new trial was ordered, costs to abide the event. On the second 
 trial defendant obtained a verdict on the special count, but plaintiff obtained a ver- 
 dict on the common count. Held that the plaintiff was not entitled to the costs of 
 theiirst trial: Dawson v. Harris et al, 11 C. B. N. S. 801. " The event" means 
 the ultimate event of the cause, and therefore if the verdict on the second trial be 
 set aside and on the third trial the event is the same as on the first trial, the party 
 succeeding thereon is entitled to the costs of the first trial : Mettle et al v. Ooddnrd, 
 5 B. it Al. 766. But the words " event of the trial," used in a special act of Par- 
 liament, were held not to mean "event" as used in an ordinary action: Hardy y. 
 Fethemtonhaugh. L. R. 4 Q. B. 725. This section has not altered the rule which in 
 England precludes the granting of a new trial upon the ground of the verdict being 
 a;,miust evidence, where the damages are under £20: Hawkins v. Alder, 18 C. B. 
 610. Where the plaintiff's counsel persists in offering evidence against the opinion 
 of the presiding judge, and in claiming damages from the jury founded on that 
 evidence, although it was inadmissible nnd the judge so ruled, if the jury give 
 such a verdict as to convince the court that the evidence so forced in must have 
 influenced their minds, as in no other way can the amount of it bo reasonably 
 accounted for, the verdict should bo' set aside without costs: Shaver v. I'he Oreat 
 Western Railway Co. 6 U. C. C. P. 321. If plaintiff, being discontented with the 
 damages, obtain a new trial, " costs to abide the event," and recovers no more on 
 the second trial than on the first, he will have the costs of the first trial only, 
 ijut the defendant is not entitled to the costs of either : Hudson et al v, JIfarjori- 
 knh, 1 Ring. 393; see further Canham v. Fisk, 2 C. <fe J. 126; Ansten v. Oibbs, 
 ST. 11. 619 ; Sherlock v. Bamerd, 8 Bing. 21 ; Howarth v. Samuel, 1 B. & Al. 566. 
 If a plaintiff set aside his verdict for sraallness of damages, a new trial may be 
 ordered, costs to abide the event, »". «. the event of the plaintiff recovering more 
 22 
 
 •%n 
 
338 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 233, 
 
 ■,} 
 
 Ffv' • 
 
 W,,. U'^ 
 
 County 
 
 trials. 
 
 ;riv 
 
 fjji 
 
 333. ((•) In cases in the County Courls, verdicts or non- 
 ^'t"^*Vf'*^ suits may be set aside and new trials granted, or Judgments 
 nonsuits or be arrested, upon the like grounds and principles as in the 
 Superior Courts, ((/) but no motion for any such purpose shall 
 be entertained after the rising of the Court on the second day 
 of the term ensuing the rendering of the verdict or the non- 
 suit, (c) 8 Vic. c. 13, s. 48. 
 
 ARREST OP JUDGMENT, AND JUDGMENT NON OBSTANTE 
 VKilEDICTO. (S) 
 
 tlian he did by the first verdict: Jones et al v. McDowell. 12 U.C. Q.B. 214; Crm<j 
 et al V. Corcoran, 24 U, C. Q, B. 406. Interpleader issues appear to come within 
 the meaning of the provision : James v Whitbread et al, 2 L. M. <fe P. 407. In cases 
 not corning within the scope of it, as a general rule the costs of the first triul 
 will not be allowed to the party who failed upon it, though he succeed in the 
 second : R. N. pr. 44. Where plaintiff who had obtained a verdict which was set 
 aside afterwards discontinued, it wag held that defendant was not entitled to any 
 costs subsequent to the period when issue was joined : Reynolds v. Hickman, 9 L, 
 T. N.S. 757. Where plaintiff who had obtained a verdict for £80 on anile to 
 reduce the verdict to nominal damages, consented, at the suggestion of the court, 
 to reduce his verdict to £40, he was held entitled to the costs of opposing the 
 rule: Wilson v. The Lancashire and Yorkshire Railway Co. 9 C. B. N.S. 647; see 
 also Delisser v. Towne, 1 Q. B. 333. But where a verdict for defendant was 
 moved against, and the defendant, at the suggestion of the court, rather than have 
 a new trial, cons^ented to a nominal verdict for one shilling and the rule was silent 
 as to costs, plaintiff was held entitled to the costs of the application for a new 
 trial : Lotoe v. JUorrice, 5 Prac. R. 36. 
 
 (c) Taken from section 43 of the old County Courts Act, 8 Vic. cap. 13, s. 43, 
 
 (d) See sections 231, 232, 234. 
 
 («) A county judge arranged with the bar of his county "to transact all terra 
 business in vacation," and acting under such arrangement set aside a verdict and 
 judgment after the term succeeding the sittings in which the verdict was ren 
 dered. Held that such an arrangement was illegal, and an appeal from the deci- 
 sion was allowed with costs: Smith v. Rooney, 12 U. C. Q. B. 661. 
 
 (/) Either partj' to a suit with reference to the pleading of his adversary i? 
 entitled to question its sufficiency in point of fact and in point of law. To do the 
 one is to plead. To do the other demur. A party may now by leave of tlie 
 court or a judge plead and demur at the same time : section 109. But demurrer 
 is not the only remedy given to a party who intends to object to the legal suffi- 
 ciency of his adversary's pleading. It is a well settled principle in pleading that 
 upon the whole record there must be disclosed a legal cause of action and ground 
 of defence. It is in the power of the court after verdict upon the application of 
 either party to review all the pleadings, and according to their legal sufficiency 
 or insufficiency, to arrest, reverse, or sustain the judgment. Often the exercise of 
 this right of review at the instance of one party wrought a serious injustice upon 
 his opponent. The effect of it was to suffer with impunity a party to an action, 
 conscious of a defect in his adversary's case, for the time to pass it by and first 
 raise the objection when that adversary had succeeded in obtaining judgment in 
 bis favour, Whereas the objection, if taken before trial, might have saved to 
 both parties the trouble and expense of a trial upon the issues raised. Such a 
 course of procedure was felt to be a reproach to our system of jurisprudence. As 
 
S. 23 J.] AURIST OF JUDGMENT AND JUDHMKNT NON OliSTASTK. 339 
 
 2!5 B. (<i) Upon any motion made in arrest of Judiiment Pmr. iiiingH 
 or fur Jiidument non obslante veredicto («) by reason of the iuarn^t ..c 
 iioii-itvcriiient or some material luct or tacts, or or some mate- idijikIk- 
 riiil allegation (k) or other cause, (/) the party whose pleading X|i'<»"f!"' 
 
 a remedy the Common Law Commissioners, thoiigli reconiinendiiig the prcserva- 
 tidii (jf tlic riglit to arrest judgment niiil to move for judgment non obxhinte vere- 
 Jidn, lidded tile qualification that the motion be allowed " only upon terms of 
 MViiicnt of all the costs, including those of trial, incurred since the pleading to 
 wliieli the party takes exception." They further recommended thiit if the motion 
 wcri' grminded upon the omisMon of some material statement of fact provision 
 eliduld be iiiade for the suggestion and trial of the fact, though the cause of action. 
 iiad been previously submitted to a jury. These suggestions have been in effect 
 adopted by the legislature in the three following sections. 
 
 (i;) Taken from Eng. Stat. 15 A 16 Vic. cap. 76, s. 143. Founded upon the 
 first re[)()rt of the Common Law Commissioners, ss. 80, 87. The section is a 
 most useful one, and will enable the courts to dispose of cases finally upon their 
 merits: Mauley v. Boycot, 2 El. <t B. 59, per Campbell, C. J. 
 
 (A I No motion in arrest of judgment or for judgment non obstante veredicto shall 
 be allowed after the expiration of four days from tlie day of trial, n^r in any case 
 after the expiration of the term, if the cause be tried in term ; or when the 
 cause is tried out of term after the expiration of the first four days of the ensuing 
 term, unless in either case entered in a list of postponed motions by leave of the 
 court; R. (i pr. 40. This was the old rule : Thomas v. Jones, 4 M. A W. 28. The 
 motiiin cannot be made after the time limited unless by consent : Harrkon et al v. 
 Tht Ureal Northern Railway Co. 1 1 C. B. 542. The motion may be made after a 
 juilj^ment by default as well as an ordinary judgment after defence, but cannot be 
 made after a judgment on demurrer, for any fault that might have been taken 
 advantage of on the demurrer: Edii'ar(/sv. Blunt, 1 Str. 425; Creswclly. Packhum, 
 eTauiit. 1130. Error will lie after judgment has been arrested : Cooke v. Oxley, 
 3 T. R. 054, note a. 
 
 (/.) For examples see Galloway v. Jackson et al, 3 M. «fe G. 960 ; Ladd v. Thomas 
 Hal, 12 A. A E. 117; Ireland v. Harris, 14 M. A W. 432; De Medina v. Grove el al, 
 15 L J. Q. B. 284 ; Davits v. Williams, 10 Q. B. 725. It has been held after verdict 
 in the case of several counts in a declaration, some bad and some good, that there 
 cannot be an arrest of judgment but a venire de novo: Einblin v. Bartnell, 12 M. 
 t W. 830; and that in the case of one count containing several causes of action, 
 some good ond some bad, the court will neither arrest the judgment nor grant a 
 mike de novo, inasmuch as it will be intended that the damages were given in 
 respect of the good causes of action only : McGregor v. Graves, 3 Ex. 34 ; Kitclien- 
 mail v. Hkecl et al, lb. 49. 
 
 (!) The relief may be obtained under this section upon a.ny motion in arrest of 
 judijment by reason of the non-averment of some material fact or facts, Ac, " or 
 other cause." Qu. Does this mean that in every case of a motion to arrest judg- 
 ment, etc., a suggestion of what is necessary to remedy the defect may be entered ? 
 If so, the act proceeds further than was recommended by the Common Law Com- 
 missioners, who proposed the entry of the suggestion only upon motions " found- 
 ed on the non-averment i f some alleged material fact or facts, or niateiiiil allega- 
 tion." Tiiey recommended that a suggestion of the truth " of the omitted fact" 
 should be permitted. But there may be motions in arrest of judgment, Ac, as 
 well for insufficient allegations or improper allegations, or for legal insufficiency, 
 IS for the omission of necessary allegations of fact. The misjoinder of causes of 
 action where general damages have been assessed, as for example an action for 
 
 f 
 
 t< 
 
 
310 
 
 TIIR COMMON LAW PROCEDURE ACT. 
 
 [s. 234, 
 
 '^^1 
 
 
 vf. 
 
 ^'.'"f 
 
 urn ;|,;. g 
 
 Siigtje.Htiim 
 of facts liy 
 party whose 
 {ileixliiiK iH 
 objected to. 
 
 is alloL'ed or adjudged (m) to be therein defective, may, by 
 leave of the Court, sugfiest the existence of the omitted fact or 
 facts or other matter which if true would remedy the alleged 
 defect; (?<) and such suggestion may be pleaded to by the 
 opposite party within eight days after notice thereof, (o) or 
 such further time as the Court or a Judge may allow, (ja 
 
 work (lone for a testator and for work done for his executors, may be mentioned 
 ns an instance: Kitchcmnan v. S/,eel et al, 3 Ex. 49 ; BigneU v, IJarpur, 4 Ex, "3, 
 Tliongli tills section odmits of a suggestion of " tlie omitted fniits or other matin," 
 it is not easy to perceive wlint state of facts can be suggested to remedy siiclia 
 defect ns tlint last above mentioned. In an action against defendant for tlirowine 
 rubbish into a stream so as to be carried down tiie stream into the mill pond of 
 plaintiff, and by choking it up to obstruct his mill, the defendant pleaded as to 
 the throwing, a right by prescription to throw into the stream near his mill the 
 oshes and sweepings necessarily arising there, identifying with these the rubbish 
 complained of. But the plea did not contain an averment that during the period 
 of prescription the rubbish had been carried down to the plaintiff's mill in the 
 manner alleged in the declaration. A verdict having been found for defendant on 
 this plea, jdaintiff moved for judgment noti obstante. Held that plaintiff was enti- 
 tled to ju<igment; but on afhdavit that the fact was proved at the trial, the rule 
 was suspended to allow defendant to enter a suggestion of the omitted fact: Mm- 
 ffatroi/d Y. Jlobiuxon, 7 El. & B. .391 ; s. c. 3 Jur. N. S. 616. A rule was issued to 
 arrest judgment on a promissory note which as set out on the declaration did not 
 appear to Ije negotiable, and leave given to the plaintiff to amend his declaration 
 on payment of defendant's costs of the motion to arrest the judgment ; Martin v. 
 Wdber, 9 U. C. C. P. 75. 
 
 (wt) Alleged or adjudged, d'e. From the use of these words it would appear tliat 
 the suggestion may be made either before or after judgment. 
 
 (n) "Wherever a thing is to be done by leave of the court, the usual and tlie 
 wise course has been to require proof by affidavit that there is a fit case for the 
 interference of the court. A party asking for leave under this section must go 
 further than merely raising a doubt. He must go so far as to produce an impres- 
 sion on the mind of the court that the final decision may probably he in his 
 favour, and this both on the fact and the law : Manlcy v. Boycot, 2 El. & B. 60, 
 per Crompton, J. It is not enough to satisfy the court that the application is not 
 made for delay. Sufficient probable grounds for the entry of the suggestion must 
 be shown : iZi. C9, per Campbell, C. J. The affidavit must at least show in clear and 
 unambiguous terms that the fact, the non-averment of which is to be supplied by 
 the suggestion, exiet«: lb. 60, pe>' Coleridge, J. To entitle a party to take advan- 
 tage of this enactment he must lay before the court a clear and satisfactory case: 
 see fisher V. Bridges, 2 E. <fe B. 128, note a. per Campbell, C. J. ; see also liickdh 
 V. Mble, 18 L. J. Ex. 408 ; Crake v. Powell, 21 L. J. Q. B. 183 ; Parson* v. Ala- 
 bander, 24 L. J. Q. B. 27.7; Murgatroyd v. Robinson, 7 E, <fc B. 391. 
 
 (o) This, unlike the time limited for appearance to an ordinary writ of siim- 
 mens or to suggestions for reviving judgments is eight, not ten days : see section 
 2, schedule A, form No. 1; sections 134, 141, schedule A, form No. 11. Tl« 
 diflference deserves to be noted, because as to the former though eight days 
 is the period limited by the Eng. C. L. P. Acts, our act makes it ten. As to the 
 section here annotated, the period is eight days both in our and the English 
 C. L. P. Acts. 
 
 (p) Court or Judg$. Belative powers; see note to to section 48. 
 
6, 235, 20G.] JUDOMENT OM COGJJOVITS, ETO. o41 
 
 and tlie priceeJirifrs f<ir trial ».f any issues joined upon such 
 rlcadiiiu'H shall bo tlio same :i.s in an ordinary aerioii. (7) 
 19 Vic' c. 4;i, s. 217. 
 
 !J33. ('■) ll'tlie fuct or facts suggested be admitted or be ifsuRRea- 
 fdtiiid to bo true, (») the party who suggested thoni shall be fuund true, 
 entitled to such Judgment as ho would have been entithd to 
 if sueh fact or facts or allegations had been originally stated 
 ill the jileading (/) and proved or admitted on the trial, to- 
 gether with the costs of and oeoasioned by the suggostimi and 
 proceedings thereon; (w) but if such factor facts be found if untrue. 
 untrue, the opposite purly shall be entitled to his costs of and 
 occasiunod by the suggestion and proceedings thereon, in 
 addition to any other costs to vrhich he may be eiitiil«.d. (c) 
 lOVle. c. 43, s. 218. 
 
 CO.VKKSSIONS, VlUyu TIIK SAME, AND JUDUMKNTS THKRFAIN. 
 
 236. (tf) Final judgment upon a coijnoiit aclionem or as tojiidg- 
 Warraot of Attorney to confess judgment given or executed "ognovits. 
 before the suing out of any process, (6) may, at the option of 
 
 (7) 1. c. As to 2)lea and nil subsequent proceedings to judgment. 
 
 (r) Taken from Eng. Stat. 15 A- 10 Vic. cap. 76, s. 144. 
 
 (?) These words are of ambiguous import ns rognrds tlie onus of proof. The 
 nffirmative of the issue will generally be upon the party who makes the sug- 
 
 ;jostion. 
 
 (() Sih 'i pleading, i. e. his original pleadings, to remedy a defect in which the 
 Btijgostion is made. 
 
 (m) To lie awarded, it is presumed, in one and the same judgment roll with the 
 ori^'inal demand and recovered by one and the same cveeulion. 
 
 (i') Upon failure of proof of the suggestion, the judgment will be for the party 
 disproving the suggestion either in arrest of judgment or non obstante veredicto, 
 Ai the case may be. As to the costs see a. 319 and notes thereto. 
 
 (f() Taken from C. L.P. Act, 1856, 8. 10, and County Court l\ Act, ]85f., f. P. 
 
 (b) A cognovit is a confession by the defendant, of the plaintiff's cause of action 
 to be just and true, whereb\' judgment is entered against him without trial. 
 
 A W'lirrniU of Attorney is an authority given bj- the debtor to an attorney 
 naiiR'ii by the creditor, empowering iiim to confess judgment. An aetion does not 
 lie on a warrant of attorney : Sherborn v. Lord Huntiiif/tower, 13 C. 15. X.S. 742. 
 
 In tliis province at one time cognovits were much more in general use than 
 Warrants i)f attorney. Anil here the practice with respect to cognovits has always 
 varii'd from that of England. In England the cognovit differs from the warrant 
 "I attorney in this, tiiat the action must be commenced by tlie issue of a writ 
 before a cognovit can be taken which in the case of a warrant of attorney is unne- 
 CteMry. llerc no such difference has ever, in fact, existed between these two in- 
 
342 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [h. 230. 
 
 
 V' 
 
 
 TO- 
 ,1 •''' 
 
 pT".'' 
 
 I '1 
 
 * i 
 
 P,<f* 
 
 f'i'* 
 
 
 '■' J*'. ■'. , 
 
 ft 
 
 4 I 
 
 Htrnmcntfl. It lins boon iisiml to tnko cognovits hnforo the Issue of a writ, nnd the 
 courts liavc hii^taint'd tli(^ jiriictice: W'/Unn v. //'ii/irurd 2 0,S. 473. Tlicoliji.rt, 
 WiiH to Hiivc cxiiciiHc. Tliitu;^li no writ wiis in fiu;l is-dicd, yet ttii' jiiilLCHicrit rul! 
 on a coirnovit liiw niways pre-HUpponed u writ nnd dculiinition. The eoi^iiovit nmv 
 be taken at any stn^ru of u ciiuso; but if after plea pieadfHl it is proper tlmt it 
 shoidd contain an a:rfi>einetit to witiidruw tlie plea. Frutn what \uis been sii'hI, it 
 will be observed that this section is merely declaratory of an exisfini; priictict' in 
 this prr)vin(;e at the time the net was first jmssed. Perhaps it will be licM that 
 the act [^oes further than the (dd practice. As it now expressly enn'^ts llmt tiiml 
 judgmiMit may bo entered on a eoij;novit f^iven before the suinif out o'' process, it 
 may i)e inferred that the judgment roll need not for the future pre-suppiiHo tlio 
 issuin;^ of a writ. \ judjrment entered on a co;Lfnovit witliout coinmoii bail Inlil t.) 
 bo irrei^nliir: G'tslin v. Tunc, 1 U. C Q. IJ. 277. It is now enucted by section,',! 
 of this act that " in no case shall it be necessary for the plaintiff to enter an iippiar 
 anee for the defendant." A judjrment entered upon a coe;novit by a deputy clerk 
 of the crown, no previous proceedings having been had in his county, whs iiiKJ 
 void: Laverlji v. I'altersoti, 5 U.C. (i.fi. (itl ; C'omiiierciul Jiauk et til v. iinniilijani d 
 itf, Jh. '.ii'\. Where a cognovit was given by one practising attorney nnd witnessul 
 by another, who was absent from the province, leave was given to ijiiter juilttiiKMit 
 upon proof of the handwriting of the defendant nnd the witness: Clenl v. [.otlmm, 
 1 U. C. (2. B. 412; A'iiiff v. Ruh'niH, Tay. llep. 291). The court gave leave to cntor 
 judgment against one defendant, the other Ix-ing dead, and a suggestion to tliat 
 effect entered of record : Sk-hall V. Curtwrir/fil et id, Tay. Uep. 4(il. Where 
 there are several defendants and a sognovit intituled in the cause against all ij 
 executed by some only, judgment cannot be entered ngninst the latter ahjnc: 
 Roavh V. ;v.mA et nl, T. T. 2 &. 15 Vic. MS. 11. &. 11. Dig. "Judgment," 8. Where 
 a cognovit was given with a stay of execution till a future day, and a nieniiiniii- 
 dum was endorsed deferring payment of jjart of the debt for a longer time, mid at 
 the day of judgment was entered for the whole amount, the court restrained tiie 
 levy according to the memorandum, with costs: Fhhcr et al v. Edqar, 5 O.S, 141; 
 Altxnwkr v. Jl(>-ve>i, T. T. 7 Wm. IV. MS. R. & II. Dig. "Judgment," 9, Whiro 
 defendants, as executors in right of their testator, gave a cognovit which n)it;ht 
 be held to bind them i)ersonalIy, upon which a judgment against tlieni as indi- 
 viduals wa.' entered, the court allowed the judgment to be amended, nnd set aside 
 an execution issued against defendants in their individual capacities: 6'om'e v, 
 Benrd et nl, 5 U. C. Q. ll. (i2(!. No warrant of attorney to confens judgment in any 
 action or caijuovit adioiient given by any person has any force unless there be [ire- 
 sent some altorne}' on behalf of such person expiessly named by him, and attend- 
 ing at his rerpnst to inform him of the nature nnd effect of such wnrrant or 
 ciignovit before the same is executed, which nttorney must subscribe bis name as 
 a witness to the due execution thereof, nnd thereby declare himself to be attorney 
 for the person exeeuting the snme, nnd stnte thnt he subscribes as sueh attorney; 
 It. ij. pr. -M't. This rule does not j)robnbly u])\>\y to cases where an attorney is him- 
 self plaintilf: McLmu v. (Juiiiiiiiiiif. Tay. Uep. 184. Where one of the bail tft 
 a sheriff, whose principal bad left the province, acting under the impression that 
 bis principal would not return, gave a cognovit to the sheriff, proceedings were 
 stayed upon nn nflida, 't of merits: Jtolnrts v. Hankton, Tay. Uep. 32. ( osts in 
 such a case : see HanleUm v. Jirmnliffe, Tn_y. Rep. 84. Semite, if a cognovit be n) 
 given, with a ])ower to enter judgment and issue execution, but by contenipora- 
 neons Verbal agreement it is understood immediate execution should not issue, the 
 court will in some cases act upon the agreement: Parker et al v. Robcrtu, 3 U.C. 
 Q. IJ. 1 14. If plaintiffs improperly described, are so described in the subscqiieni 
 proeeedintis. defemlant. who signed cognovit without exception, cannot afterwflrdi 
 take advantage of the error: Ih. Leave to enter up judgment upon acognovitor 
 warrant of attorney above one nnd ■)der ten years old, is to be obtained byorfler 
 of a judge made (x jmrtv, and if tei years old and more upon a summons to slww 
 
 _. im h ; 
 
 ■ 'ml 
 
3, 2117.] 
 
 RKOISTRATION OF COONOVITS. 
 
 343 
 
 (lie Pliintiff, be entered in any office of cither of tlie suit! Supe- 
 rior Courts, (</) and in like maiinur and like circuinstiincos 
 finii juilgtneil mny bo entered on a cnyiiovit actionem or 
 Warnint of Attoriioy to confess judj;ment for an amount not 
 excci'''"i; four hundred dullurs, in any County Court, (/t) 
 unli a particular office or some particular County Court 
 
 for that purpose be expressly stated in the voijnovit or war- 
 rant. (0 10 Vie. c. 90, s. G; 19 Vie. o. 43, s. 10. 
 
 337- (}) No confession of judgment or roz/noy/V oc/joucm rcuif.ssidns 
 sliall bo valid or effoctuul to support any jucJj^nient or writ or vitsKivm 
 execution, unless, within one month after the same has been aiu,, i,e 
 "iven, the winie, or a sworn copy thereof, be filed of record in "^"* 
 the proper office of the Court in the County in which the per- 
 80U fiivin;? such confession of jud<;ment or coi/novit acHnnem 
 resides; (/c) and a book shall be kept iu every such office to 
 bo called the Co(»novit Book, in which shall be entered the 
 uames of the Plaintiff and Defendant in every such confession 
 or co;"iovit, the amount of the true debt or arrangement 
 seer hereby, the time when judgment may be entered 
 anJ ion issued thereon, and the day when such confes- 
 
 cnuse: R. G. pr. 27. Tlio court refused lenvo on a cognovit fifteen years old, where 
 pliiiiilifF lind taken nn nssiijninent of personal property, tlioujjli unproduetivo in 
 eiitisfiu'llon of liis debt ; Grant v. Mcliiioxh, Ejccnlom of, 4 O. 8. 1 84. Leave was 
 i;raiited wh -n tiie cognovit was seven j'enrs old, upon nn affidavit from the plain- 
 tiffs of tiie whole debt being due, and also stating that having received a letter 
 fioiii defendant, the plaintiff believed him to be still alive: Oliphant v. McGinn, 
 4 U. C. Q. B. 170. 
 
 (,(/) In any office, Ac. " Any" mnst relate either to one of the principal offices 
 at Tui'onto or to any of the offices of deputy clerks of the crown in other counties, 
 
 (h) In accordance with previous legislation and the cnrrent of authorities, it 
 m.iy be prcsi'nied that when a plaintitif enters up judifment on a cognovit in a 
 superior court, 'v!-.c the same falls within the cognizance of the county court, 
 that only county court costs will bo taxed. 
 
 (i) It seems clear that this statement, if made, must be in the body of the docu- 
 ment. The intituling of a cognovit would only indicate one of two coui'ts, and 
 not one of several offices. Warrants are not usually intituled in any court, 
 Qiim'e. As to the effect on costs of stating the principal office in Toronto of any 
 one or other of the superior courts where the amount confessed is $400 or less 2 
 
 (j) Taken from the C. L. P. Act, 1857, section 17. 
 
 (i) The true construction of this section is that if judgment bo entered witliin 
 the month, the filing the cognovit and the entry of its particulars in the cognovit 
 book are unnecessary, for then the case does not fall w.ithin the spirit and intent 
 of the enactment: t/ic Commercial Bank of Canada v Fletcher, 8 U. C. C. P. 181 ; 
 
 4 
 
 'J 
 
 
'li' 
 
 ff ' 
 
 :■' ■*,«£,_ 
 
 li V' • 
 
 ^ J. 
 
 i^'- 
 
 su 
 
 THE COMMON LAAV PROCKDUliK ACf. 
 
 [8. 238. 
 
 tiu>4 
 
 sion or cognovit, or copy thereof, is filed in tlio said ofTice; (/) 
 and such book shall bo open to inspection by any person 
 during office hours, on the piiyuient of a fee of twenty 
 cents, (to) 20 Vic. c. 57, s. 17. 
 
 JUDOMEXT AND WIUTS OF KXKCUTION. (n) 
 
 McLean v. Stnnrt et al, 2 Prao. II. .31)7. A doffiidiint scokino; to set osulo a jiidrf. 
 incnt <<n a cognovit as not having been filed in tlie county in wliicii he rosiclld nt 
 tho time of giving tlie cognovit must clearly sliow that lie was not so resident nt 
 tliMt time: Iniin v. Ham, 9 U. C. L. J. 80. If filed in the ])rf>])er county imina. 
 tcrial discrepancies between the sworn copy filed and the origimd cogntjvit con- 
 stitute no ground for setting aside the judgment entered in the cognovit: 76. 
 
 (/) Thip provision as to nntry in the book does not make the validity or otficacv 
 of tlio cognovit depend on the fact of entr_v. Bueh an entry is rat iter tlte dnly Jf 
 the officer of the court than of the party : The Cummerdal of Vanada v. Fhlcher 
 8 U. C. C. P. 183, per Dr-.per, C. J. 
 
 (vi) Ins]iection can only be had on payment of the fee mentioned, and that 
 " during otHce hours." 
 
 (»i) The description of property seizable under execution in this Province in 
 some respect ditf'urs from the laws of Knglaud. Personal pi'operly coniinonly 
 described as goods and chattels is, both in England and in this Province, liable 
 to seizure. Ileal esiate, commonly described as lands and tenements, in tliis 
 Province, though not in England, may be seized and sold in satisfaction of debts, 
 whether simple contract or specialty, in the same manner as goods and clmt- 
 te)s. This was a principle that existed in many of the British colonies of North 
 America from an earl>' period. An attempt made in some of the colonies to dis- 
 pute the principle to the detriment of English creditors led to the passing of Kng. 
 Stat. 5 Geo. 11. cap. 7, intituled, " An Act for the more easj' recovery of debts in 
 his Majesty's Plantations and Colonies in America." It enacts na follows: "That 
 from and after, ifec, the iiouses, lands, negroes, and other hereditaments and real 
 estates, situate or being within any of the said plantations belonging to any 
 person indebted, shall be liab'e to and chargeable with all just debts, diitici, ord 
 dcinaitds of what nature or kind noever, owing by any such person to his Mnjest}-, 
 or any of his subjects, nnd shall and may be asxets for the sati.sfaetiou thereof, in 
 like manner as real estates are by the law of England liable to 'the satisfaetion of 
 debts due by bond or other specialty, and shall be subject to the like remedies, 
 proceedings and process, in any court of law or equity, in any of the said jilnnta- 
 lions respectively, for seizing, extending, selling, or di^iiosing of any sudi houses, 
 lands, negroes, and other hereditaments and real estate, towards the satisfiietion 
 of such del)ts, duties and demands, and in like manner as pemuiial estates in any of 
 tlie said plantations respectively arc seized, extended, sold, or disposed ofl'ortiic 
 satisfaction of debts:" section 4. The construction of this section has been tic 
 -subject of deubt nnd of some <liversity of ojiinion. The leading case in this Pro- 
 vince npcm the statute is Gardiner v. Gardiner, 2 0. S. 520. The ju'rusid of it, 
 particularly the judgments of llobinson, C. J., and Macaulay, J., who, though 
 differing in one very nniterial point, in the main agr(.'ed in ojunion, will jiut the 
 reader in possession of the whide law upon the subject. Whatever differences of 
 oi)inion there were, the law is now settled. 
 
 Jt ai)pears that from 17!H, when this Province becanic a seimrate colon}', litllo 
 nse was made of the act of (»eo. 11., owing to doubts whether that statute applied 
 to this Province in consequence of our ado))tion of the laws of England by the 
 32 (leo. III. cap. 1. The-issuing of writs again.st lands was obstructed by these 
 doubts till 18o4, when the case of Grai/ v. W'il/oe/cs occurred and suspended all 
 
238] 
 
 WRITS OF 1;XKCU1I0N. 
 
 845 
 
 tliL' pi'oet't'diiig's under the statute during the several years in wliicli tlint cnsD 
 WM'i pciidinij. It was uUinm^idy decided in a])i)enl, in lHii<,», in fnvor of tlie a])j)li- 
 c;iliiiii of tiie statnte to tiiis Province, and the ))oint heiiig no lon;jjor il')nl)tfnl 
 rif(jit was fre(itiently liad to the statute: ilanlimr v. (Junlhirr, 2 (). S. 647, ]icr 
 lliibiiii m, C. .1. And wlien in conrs-e of tin)e the act in jiraulice was closely ex- 
 !i;i;iii('(l and its nieanin;^ thorouirhly sifted, importance was attadied to liie fact 
 that it not only made real estate liable for and chargeable wiib tlie payment of 
 debts of every description bnt o.wc/.v for their satisfaction. Under the o]>eratiou 
 of till' statute it was held that real estate in tliis Province descended to the iieir, 
 subji'Ct to the ])aymeiit of debts and liable to be .seized and sold tiierefur iii [iro- 
 Cfi'd'iiu:* against an administrator or exeentor, without making the luir at law a 
 iiui'lv to sueli ])roeeedings: UnnUntrw. G'lrdiiier, 'i O.H 52n. Tliis anomaly "n 
 coiisrquence presents itself — real estate /jnoKil ihc satisfaction of debts if trialed 
 (IS iicrsoiially, and yet for all other purposes retains its character of real estate. 
 It is an anomaly not unknown even in England. Kstates^(/(;' tnilrc vie. arc turned 
 into pe.soiialty for some special puri)03es, but nevertheles.s the nature of the 
 estate is unaltered, 2i) Car. il. cap. :i, s. 12 ; 14 Geo. 11. cap. 20. s. D, 2 O. 8. 55ti, 
 j^^f/' I!ob'!ison, C. J. The statute 5 Geo. II. cap. 7, not only declares that real 
 estate sliall be assets for the satifactiou of debts, but enacts the manner in which 
 itsliiiil b(! converted, for the ])urpose of paying debts, viz., " subject to the same 
 reimdy, iiroceedings, and i)roeess for seizing, extending, selling, ikc, in like 
 mmiiiir as personal estates are seized, extended, sold," «tc. The remedy with 
 ri'spi'ct to personal estate is by judgment and execution against the debtor, if 
 alive, or against his executor or administrator, if deceased. To sell real estate 
 u|inii a judgment against an executor or adndnistrator is inconsistent witli the 
 law of England. It is a mode of procedure jjeculiar to the colonies, and one which 
 exists iu this Province solely by virtue of the statute of (Jeo. II., whicli ajiplies 
 only to the colonies. The usual form of execution against j)ersonal property both 
 in Eniilaiid and this Province is Siji.fa., and this form is in this Province under 
 the o)ieration of the statute of Geo. II. also used as regards real esta'.e: see fur- 
 tiic'i" Sick-lc>i cl al V. Asselstinc, 10 U. C. Q.H. 2ii." ; Topfii\i<j ei al v. YuvdiiKjIon it al, 
 (, V. C. 0. p. :147; Mein d al v. Short d al, 9 U. C. C. P. 244 ; Mumn v. Buhinijlon, 
 17 I'. C. C. P. M'.t ; BulUn d al v. A' IhAdt, 9 Jur. N.S. 47:5 ; I'eck v. limk °, 2 Chan. 
 Cliaiii. 294. It is now by provincial statute expressly declared that under the 
 fiiid iinjieiial statute the title and interest of a testator or intestate in real estate 
 in this Province might be and hereafter may be seized and sold under a judg- 
 ment and execution recovered by a creditor of tlie testator or intestate against 
 liis executor or administrator, in the same manner and under the sai"e process 
 tliat the same could be sold under a judgment and execution against the deceased 
 if living: 27 Vie. c. Ifi, s. 1. Previous sales of this nature are also b\" the same 
 act I'ontirnied : s. 2. The usual form of e\eeuti(.n against lands and tenements in 
 lji;;land is the elqjit, which, though not i.buli.'shed in this Province, is in a great 
 iiieasni'e superseded by the _/('. fa. against lands. In must of the Pritish (.'olonies 
 •if Ndilh America, goods and cnattel.s, lands and tenements, were at one lime 
 imhidcd in one and the same wri; of fi. fa. This was the practice in lids i'ro- 
 vince nntil 18(»;5, when it was enactedthat process should not issue against lands 
 until the return of process against goods: 4;i (ieo. HI. cap. 1, s. 1. Separate 
 writs of execution may now issue against goods and lands at the same time: Slat. 
 Unt. Z\ Vie. c. 23, s. 1. But the lands cannot be sold in less than a ye.ir: J6 ; 
 imr until tlie writ against goods has been returned iiul/a buna : Ih s. 2 ; and tiic 
 return of nulln hmia cannot be |)roperly nmde until the goods have been exhausted: 
 i'' s. ;i, and if the amount required to be levied he made out of the goods the 
 person issuing the writ against lands is not entitled to the expense thereof: lli. 
 ^ 4. Put writs against lands and goods are to have the same binding ell'ect as 
 lieretot'ore: Ih. s. 5. \Vhere there are rival execution creditors, some having 
 writs atrainst goods and others against land, there may be dilHculty in the way 
 if the sheritf executing the writs: eeo Glcason v. Gkuson et al, i Prac. U. 117. 
 
34G 
 
 THE COMMON LAW PROCEDURE ACT. [ss 238, 
 
 
 When filial 
 .juilgnit'iit 
 may lio 
 t'literwi. 
 
 Afti'r ver- 
 dict or iiim- 
 siiit. Jii(ly;u 
 may ceitily 
 that (ixtM'ii- 
 tiou might 
 tl) issiu! 
 I'urtlnvitli. 
 
 238. (o) The party in whose favour a verdict has hocn 
 rendered, or when the Plaintiff has been non-suited at the 
 trial, the Defendant may, in the Superior Courts, enter fi«iL 
 judgment on the fifth day, (/>) and in the County Courts on 
 the third day of the Terra next following such verdict or non- 
 suit, («/) and thereupon sue^t execution, (r) 19 Vio. c.43 
 ss. 182, 184; 8 Vic. c. 13,8. 42. 
 
 339- (.s) In case the Plaintiff or Demandant in any action 
 or suit (<) becomes nonsuit, (n) or a verdict be given or dam- 
 ages asse^Jsed for the Plaintiff or Demandant, Defendant or 
 Tenant, (w) the Judge before whom any issue joined in any 
 such action is tried, or before whom damages are assessed, (k) 
 
 
 (o) Tills is a consolidation of C. L. P. Act 1856, s. 184, Avith section 42 of the 
 old County Courts Act, 8 Vic. cap. 13. 
 
 (p) The first four days of the term next after the trial are allowed for a motion 
 to set aside the verdict or nonsuit or for other motion of that kind : R. G. pr. 40. 
 
 (17) The county court term is only one week in duration : Stat. Ont. 32 Vie. 
 cap. 6, s. 2. 
 
 (/•) " Anil thereupon sue out, Ac." ?'. e, upon the entry of final judgment. Of 
 course until judjjment entered, execution cannot in general be regularly issued. 
 
 («) Taken from 16 Vic. cap. 1T5, s. 27, of which it is a verbatim copy, and 
 substantially the same as Erig. Stat. 1 \Vm. IV. cap. 7, s. 2. The statute is a 
 remedial (jiie, and meant to protect against frauds, and to secure suitors in the 
 fruits of their verdicts. It should therefore receive a liberal construction: Pat- 
 terson V. //'(//, 1 1 r. C. Q. B. 360, per Robinson, C. J. 
 
 (<) The English statute of William was held to apply to actions comnicnccJ 
 before it came into operation, but tried afterwards: BvU v. Smllh, 5 C. & 1*. lO; 
 and though at first looked upon as litnited to actions on contract was nfterwai'dj 
 held to apply to all cases where the judge might think execution ought to issue at 
 an early period ; Burden v. Cox, 1 Moo. & R. 2U3 ; Younge v. CrooLt, lb. 220. 
 
 (?«) Where in an action for criminal conversation in consequence of the prevari 
 cation of one of plaintiff's witnesses, plaintiff elected to be nonsuited. Timial. 
 C. J. upon deliberation, certified for execution for costs to be issued at the cxpira- 
 tion of one month : Hambklge v. Crawley, 5 C. «& P. 9, note. 
 
 (r) Where in an action for goods sold and delivered, and on an account stated 
 there was a demurrer to the count on tlie ii.?eount stated, which iiad not bcea 
 argued at the time of the trial, when plaintiff had ", verdict, the presiding judge 
 certified for immediate execution upon plaintiff undertaking to enter a mile 
 proneqiti to the count demurred to: Alhopp v. Smith, 7 C. «fe P. 708. Qn. Om 
 the judge certify for speedy execution when one of two defendants has tendered n 
 bill of exceptions? Dresser v. Clarke, 1 C. «t K. 569. 
 
 (w) It is in the discretion of a county judge to make an order for immediate 
 execution in such cases as he has authority to try, whether instituted in a superior 
 court or in his own court: Patterson v. JJall, 11 U. C. Q. B. 359; M' Kan v. //"", 
 4 U. C. C. P. 145 ; Gildersleeve v Hamilton, 11 U. C. C. P. 298. Ho can therefore 
 
239.] 
 
 IMMEDIATE EXECUTION. 
 
 347 
 
 may certiCg under his hand on the back of the Record, at any 
 time before the end of the Sittings or Assizes, that in his 
 opinion (x) execution ought to issue in such action forth- 
 with, (y) or at some day to be named in such certificate, and 
 subject or not to any condition or qualification, and in case of 
 a verdict or damages assessed for the Plaintiif, then either for 
 the whole or any part of the sum found by such verdict or 
 assessment, (z) in all which cases costs may be taxed in the Taxingcosts. 
 usual manner, and judgment may be entered an d execution E xctutioiu 
 issued forthwith or afterwards on any day in vacation or terra, 
 according to the terms of such certificate, and the postea with Kuicring 
 such certificate as a part thereof, shall be entered of record as ^'"^ '"^' 
 
 oriliT immediate execution in cases sent down to liim for trial, under 23 Vic. c. 
 42, s. 4 : I-attermn v. Halt, 11 U. C. Q. B. 35'.,i. The judge before whom the trial 
 islind i.s the judge authorized to certify: see Carpenter v. Lee, 1 Dowl. N.S. 706. 
 So it is ii|)preiiended where a superior court case is tried by a judge of a county 
 court uiidir the privisions of section 17 of the Law Reform Act, Ont. 32 Vic. c. 6, 
 or a county court case tried by a superior court judge under the same section. 
 But in the last men'-ioned cases judgment may be entered on the fiftli day after 
 the verdict, unless tlie judge who tried the cause certify on the record under his 
 hand that the case is one which in his opinion should stand to abide the result of 
 a motion, or unless a judge of one of the superior courts otherwise order: lb, 
 
 (t) The statute is more particularly intended to apply when tlie judge, on the 
 facts Appearing at the trial, thinks there should be execution immediately: Ze 
 (jenai< v. Biirlifiki/, 1 Moo. & R. 150; but affidavits may be received in support 
 of tlio application: Rmldieky. Sliniwius, II). 184. Lords Lyndhurst and Ten- 
 tcrdeii ill ICngland are said to have laid it down as a rule that where there was a 
 rcnsoiiiible ground of defence tlie case should take the ordinary course: IJnrfurd 
 V. Xilxitn, 5 U. & P. 8. The general oliject of the English statute was tlioiiglit b}' 
 I'lirke, J to be to accelerate execution for all debts where there was really no 
 duiibt of the claim upon the record: Anon. 1 Moo. A R. 1H8; and he cei-titied for 
 ininiediate execution in an action of asituii,pHit, though the verdict was taken by 
 consent iiiid though the consent did not contain any stipulation as to the issuing 
 of execution : lb. 1G7. 
 
 (//) "Forthwith" means as soon as execution can be obtained in the ordinary 
 course of the court or of the office ; SnooLs v. /Smith, 7 M. & G. 528 ; Gill v. Unsh- 
 mrlh, 2 I). & L. 416 ; Alexanihr v. W'illiamii, 4 1). & L. 132. 
 
 {%) Sunble. The costs are incident to the recovery : Smith v. Dickem^on, 1 D. 
 it L, 155. Where a certificate is granted for iinniediate execution, notice of tax- 
 fltioii of eosts may be given on the day of the trial for the following day. and on 
 timt day judgment may bo entered and execution issued: Alexander v. Willimnn, 
 i 1). it L. 132; and plaintiff should issue one writ of execution for the amount of 
 tiie verdict and costs: Smith v. Dickinmn et al, 5 Q. li. 602. There is nothing to 
 restrain the judge from preventing the inmiediate execution for costs, since ho 
 may make his certificate subject to any conditivn or qualification: lb. 605, per 
 Pattesoii, J. And, .senible, if he does so the first writ of execution must be a 
 special writ under the statute reciting the judge's certificate and the direction 
 to the sheriff in the body of the writ should not be to levy for the whole sum 
 
 
 
us 
 
 THE COMMON LAW PROCEDURE ACT. [s. 240, 241. 
 
 of the dny on wliich the jutlji;ment is sigmtl; (o) but the 
 party entitled to such jud;j;iiieiit niny postpone the si<j;nin'' 
 thereof. (6) 19 Vic. c. 43^ s. 182; 8 Vic. c. 13, s. 42. 
 
 Slim of 3'4:0. (f) In all actions where the Phiintiff recovers a sura 
 
 money rem- i • i i • • i i i 
 
 von,iUi>iic 01 money, the amount to which he is entitled maybe awarded 
 gei'ieraiiy. to hiui by the judgment generally, without any distinction 
 being therein made as to whether such sum is recovered by 
 way of a debt or damagesr (d) 19 Vic. c. 43, s. 144. 
 
 Kntryniiii 241. (0 I'Vcry judgment signed by virtue of the two 
 
 iiuignient. hundred and thirty-ninth section may be entered and recorded 
 
 as the judgment of the Court wherein the action is pending, 
 
 though the Court may not be sitting on the day of the sign- 
 
 for wliich judgment was signed, but for a special sum ordered by the certificate: 
 Smith V. Dkkeumn, 1 D. «fe L. 158, per Wightman, J. And if a second writ of 
 execution become necessary for the costs, the previous writ ought to be recited, 
 and it should appear that the second writ, particularly if the first was a ca sa. i3 
 not for the same cause as in the first writ being founded upon the judge's certifi- 
 cate and the second upon the final judgment: lb. If both should be wTits of ea. m. 
 and it aj)pear upon looking at them that defendant has been twice tal;en in execu- 
 tion to satisfy tiie same judgment, he will be discharged: Ih. Since, ho\vev>;r, 
 the damages and costs should be embodied in the original judgment and the 
 execution should follow the judgment, these divta may be open to doubt, unless 
 the judgment itself be entered for the damages and costs separately, so as to 
 warrant and support an execution in the special forms above suggested. 
 
 (a) "When once final judgment has been signed, the power of tiie judge who pre- 
 sided at the trial is at an end, and the execution follows as of right, according to 
 the ternjs of the certificate, which the judge has no power to alter: Latuhr v. 
 Gordon, 7 M. & W. 218. As to the form of poxtea and judgment when a certificate 
 has been granted for immediate execution, see Eiif/khcart v, Myre et al, 5 1}. it Ad, 
 VO, note a. 
 
 (6) Qii. lias the judge power after the certificate to alter or amend it before the 
 signing of judgment where the part}' entitled to do so postpone the <ntry of jiulg- 
 ment ? 
 
 Founded upon the first 
 
 feip; t 
 
 (c) Taken from Eng. Stat. 16 & 16 Vic. cap. 7(5, s. 9.5. 
 report of the Common Law Comnnssioners, section 68. 
 
 (//) This section is an extension of the principle coMtained in section 9 of 
 this act, which declares that it shall not be necessary to mention any form or 
 cause of action in any writ of summons or any notice thereof. The reason for 
 the alteration arises from the form of judgment in use before the act, varying 
 according to the nature of the action. In the action of debt the judgment was 
 that plaintiff "do recover the debt" with damages, (which wore generally nomi- 
 nal) for the detention of the debt and for cos^^ superadded. In other actions on 
 contract the judgment was for damages onl}-. The distinction was more technical 
 than useful, and was open to objection u[)on many grounds, several of whieli liave 
 been mentioned in the report of the Commissioners. 
 
 (e) Taken from Prov. Stat. 16 Vic. cap. 175, s. 28; the origin of which is Eng 
 Stat. 1 \Vm. IV. cap. 7, e. 3. 
 
8. 242.] 
 
 SETXrNO ASIDE JUDGMENT AFTER EXECUTION. 
 
 U9 
 
 1d<t thereof, (/) and shall be as effectual as if the same had 
 been sif^ned and recorded according to the course of the 
 common law. (</) 19 Vic. c. 43, s. 183. 
 
 <Ji3. (/i) Notwithstanding any Judgment signed or re- Jmi'mient 
 
 corded or execution issued by virtue of the two hundred and usuiu, kv. 
 thirty-ninth and two hundred and forty-first sections, the 
 Court in which the action is brought may order such Judg- 
 ment to be vacated and execution to be stayed or set aside^ 
 and may enter un arrest of Judgment or grant a new trial or 
 a new assessment of damages, ^k) as justice may appear to 
 renuiie, and thircupon the party affected by such Writ of t'ons.- 
 
 1 ' ' 1 11 1 qUflicc uf its 
 
 Execution shall be r estored to all that he may have lost there- being so. 
 by, in like manner as upon the reversal of a Judgment by 
 Writ of Error, {I) or otherwise as the Court may think fit to 
 direct; {ni) but any application to vacate such Judgment 
 must be made wi.Iiin the first four_^days of the Term in the 
 Superior (Jourts, and within the first two days in the County 
 Courts next after the rendering of the verdict, (n) 19 Vic. 
 c. 43, s. 184. 
 
 (/) In declaring: on ft jiulf^ment zl^neH in vacation, the day of signing judg- 
 ment should be stated according to the fact, and not laid as of the preceding term : 
 Engkheart v. Eyre et al, 5 B. <fe Ad. 68. 
 
 {(/) i. e. So as to entitle the successful party forthwith to issue his execution, 
 tlie fruit of his judgment. Wliere judgment is to be entered up according to the 
 oi'diruiry practice, time is allowed for moving against the verdict before judgment 
 can be entered. The time allowed in the superior courts is the first four days of 
 tho term next after the trial. Under the operation of this section, the execution 
 mny be issued without waiting the usual period. And under the following section 
 tlii'judgment may be moved against, notwithstanding the issue of execution. 
 
 (//) Taken from Prov. Stat, 16 Vic. cap, 1T5, s. 20, the origin of which is Eng. 
 Stat.' 1 Wm, IV. cap. 7, s. 4. 
 
 (/.) The court has no power to order money levied on the execution to be paid 
 ovei- while the rule is under discussion: Morion v. Burn el al, 5 Dowl. V. C. 421. 
 
 (') See Chit, Arch. 13 Edn, 676 , et seq. 
 
 (w) Where a judge at the trial orders that plaintiff shall have exonution within 
 a limited time, and judgment is thereupon entered up anil execution i.-^'-ued, tho 
 defc'iuliint is not precluded from applying to tlie court above to enter a : uy:ge.stion 
 to deprive the plaintiff of his costs, where the sum recovered is williiu the jurls- 
 dictiuii uf an inferior court: see liaddley v, Oliver, 1 C. »fc M. 219, 
 
 (ii) Tiie spirit of these sections as to speedy execution appears to be this — tho 
 jiKl;;e at the trial gives a right to speedy execution ; he gives that right, however, 
 not conclusively ; but subject to an application to the court to be luade within tho 
 
 I 
 
 
 
350 
 
 THE COMMON LAW TROCEDURE ACT. [8.243,244. 
 
 if' ''-„ 
 
 
 
 4 
 
 liin 
 
 if ■'^ "l 3 
 
 Deputy 
 clerk to kcej) 
 books for 
 minuting nil 
 Jiulginuuts, 
 
 Judgments 
 to be also 
 docketed at 
 Torouto. 
 
 343. (o) Every Deputy Clerk of the Crown and Pleas 
 and every County Court Clerk shall keep a regular book, in 
 which shall be luinuted and docketed all Judgments entered 
 by such Deputy Clerk or County Court Clerk, (jj) and such 
 uiinute shall contain : 
 
 1. The name of every Plaintiff and Defendant; 
 
 2. The date of the issue of the first process j 
 
 3. The date of the entry of Judgment; 
 
 4. The form of action, (^^) and the amount recovered, ex- 
 clusive of closts ; 
 
 5. The amount of costs taxed; (/) and 
 
 6. Whether such Judgment has been entered on verdict 
 defiiult, confession, non i>ros, nonsuit, discontinuance, or how 
 otherwise. 19 Vic. c. 43, s. 15 ; 19 Vic. c. 90, s. 7. 
 
 S4:4:. (s) Within three months after the entry of eacb 
 Judgment, by a Deputy Clerk of the Crown, he shall trans- 
 
 first four days of the next cnsuinsj term, upon any ground upon which an appli- 
 cation can be made whetiier in arrest of judgment or for a new trial or otiierwise. 
 In other words, tlie judgment signed witii a vimv to speedy execution is subject 
 to be questioned within tiie first four days of tlie term next after tlie rendering of 
 the verdict: Smith v. Temperlr;/, 4 I). «fe L. 510. Tlio court will not entertaia 
 objections to tlie regularity of the j)roeeedings, where the party has neglected to 
 avail himself of opportunities to urge them at an earlier ])eriod, even though they 
 amount to error on the face of the record : see Graves v. Walter et ux, 1 Scott, 310. 
 
 (o) Taken from C. L. P. Act 18.-)t5, a. 15. 
 
 (p) The duty is declared in poMtive terms and the fulfilment of it is made 
 imperative. 
 
 (q) As the form of action need not be mentioned in the writ of summons (sec- 
 tion 9) and as the writ is the commencement of the action, the clerk in some cases 
 will have difficulty in entering the "form of action." lie will at all events be 
 compelled to delay that part of his entry until declaration is filed. If judgment 
 be signed before declaration, he may be unable to make the necessary entry. 
 Even after declaration, since the forms of pleading in the several actions are now 
 80 general, the form of action may be uncertain. 
 
 (>■) The clerk is also required to make an entry containing, besides the form 
 of action, " the amount recovered exclusive of costs" and " the amount of costs 
 taxed." By section 240 of this act, the sum recovered may be awarded generally 
 by the judgment, " without any distinction being therein made as to whether 
 such sum is recovered by way of debt or damages." This language is not con- 
 sistent with that of the section under consideration, and may occasion some diffi- 
 culty. It will probably be sufficient for the entry to be made generally without 
 distinction as to debt or damages, where no such distinction is made in the judg- 
 ment roll. 
 
 (s) Taken from C. L. P. Act, 1856, section 16. 
 
ss. 245, 24G.] 
 
 ■WRITS OF EXECUTION. 
 
 351 
 
 luit to the principal Clerk of the proper Court in Toronto, 
 every such Judgment-roll and all papers of or belonging 
 tliereto, and such Judgment shall be also docketed in the "iii """ I'o 
 
 1 rf / \ 1 • • n t rt 1 l"St. <"<)]lieS 
 
 principal office, (J) and in case in any of the Courts the iimybcusi^a. 
 original Judgment-roll happens to be lost or destroyed, so 
 that no exe'iiplification or examined copy thereof can be pro- 
 cured, a copy of the entry in any of such docket books, certi- 
 fied by the Clerk or Deputy Clerk of the Crown, or by the 
 Clerk of the County Court having such book in his cus- 
 tody, shall be evidence of all matters therein set forth and 
 expressed, (m) 19 Vio. c. 43, s. 15 ; 19 Vic. c. 90, s. 7. 
 
 845. Repealed by Stat. 24 Vic. cap. 41, s. 3. 
 
 316. (i) All Writs of Execution may issue from the Writs of 
 offices wherein the Judgment has been entered, and in the 
 Superior Courts, after the transmission of the roll to the 
 principal office, such Writs may, at the option of the party 
 entitled thereto, be issued out of such principal office, (r) 
 13 & 14 Vic. c. 52, s. 3 J 19 Vic. c. 43, s. 11. 
 
 [t) It will be noted that upon transmission of the jutlgment-roll and papers to 
 llie piiiicipal otHce, the judgment is only to be docketed. The 8 Vic. cap. 8G, s. 
 
 4 (now repealed), required tiie judgment, upon transmission of the papers, to be 
 cntiMY'd of record and docketed. There is a distinction : see Lavcrty v. Pittterson, 
 
 5 U. C. Q.B. 641, ^«c Draper, J. The former net prescribed an entry both by ti»e 
 (k'piity clerk and at the principal otlice. The present act, in case of entry by tiio 
 di'|iuty, renders necessarj' simply a docketing at Toronto. The object of the act 
 is to secure duplicate entries, tliat one may be forthcoming if the other be lost, or 
 tliat one or the other may be forthcoming ■' in case the original judgment-roll be 
 lost or destroyed, so that no exemplification or examined copy thereof can be 
 procured." 
 
 (i(i It is not declared that the clerk's certificate shall be evidence on its bare 
 production, and in the absence of a declaration of the kind it is a question whether 
 or not it is necessary to prove his handwriting before being allowed to use the 
 certificate, 
 
 (6) Taken from C. L. P. Act 18.56, s. 11, .-.s consolidated with Stat. 13 <L- 14 Vic. 
 
 cap. 52, s. 3. 
 
 ((•) A seal is necessary to the validity of an execution : Oallophy v. Ormshi/, 
 1 Ir. C. L. 11. 545 ; see also note I to section 5. It is no part of an attorney's 
 duty under the ordinary retainer to issue execution, his authoritj' ceases with tlie 
 ju(ly;ment : Senr/son v. Small, 5 U. C. (i.B. 259. The court has no power to compel 
 a plaiiititf to issue execution for the benefit of a slierifF who claims indemnity, 
 but is a stranger to the judgment: Oamble ct al v. Hmnell, 5 O. S. 339. An execu- 
 tion issued bj' plaintiff's attorney in a cause where plaintiff had fled from the 
 province, and been absent for seven years, was stayed until such time as the 
 
852 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 2 to. 
 
 attorney coiilil show that plaintiff was homo and had given him autliority to issue 
 execntion : IIobKon v. Hhand, 8 U. C. Q B 74. An assignment of a jiidgmont by 
 plaintiff for a valuable consideration cannot bo considered a satisfiictiori of Ins 
 debt, so as to prevent his assignee issuing execution in the name of the orii'insl 
 plaintiff: Commercial Bank v. Bonlton, 6 U. C. Q. B. 627. Phiiiitiffs, wlien paid 
 their debt under execution, cannot consent to the issue of a second exi'culion 
 though for the purpose of making good the title to land Hold by the sheriff imdep 
 the first writ: Bank of Upper Canada v. Mitrphi/, 7 U. C. Q.B. 328. Notiiing c«n 
 be done under a spent execution, unless to perfect what had been coninitnred 
 while the writ was current: Doe d. reemhielda v . Garrow, 5 U. 0. Q. li. li.'i;. 
 Where good.^ are already in the custody of the law, an execution at once attnuhos 
 upon them without an actual seizure: licckmauv. Jarvis, 3 U.C. Q.B. 280. Where 
 a defendant had been discharged from arrest, as having been irregularly cliarired 
 in execution, the court upheld a Jteri facias afterwards issued against Ills i^innh: 
 Dormau v. Jiauxon, Tay. Hep. 278. It was formerly held irregular to issue nn 
 execution against lands until after the return of the writ against goods: Boe d. 
 Spaff'ord v. Brown, 3 O.S. t)2. So it was held that it was irregular to issue an exe- 
 cution against goods after a levy had been made on a writ against lands tliat lias 
 not been returned : Stcvem v. Sheldon d al, T. T. 3 & 4 Vic. P. C. J/.S'. U. <t II. J)!;.. 
 " Irregularity," 14, jmt Macaulay, J. But it was held that a return of a writ 
 against goods where the venue was laid was suftieient to warrant a writ nn'ainst 
 lands to any other county' without a warrant against goods there also : Osienld v. 
 Rykert el al, 22 U. C. Q. B. 306. But now any person entitled to issue an execution 
 against goods may at or after the time of issuing the same issue an execulica 
 against lands, and deliver the same to the sheriff to whom the writ against goods 
 is directed, at or after the time of the delivery to him of the writ against goods, 
 and either before or after the return thereof; Stat. Unt. 31 Vic. c. 25, s. 1. But 
 the sheriff is not to expose the lands for sale or sell within less than twelve 
 months from the day on which the writ against lands is delivered toliim; 76. 
 No sale can be legally had under an execution against lands until a return of 
 nulla bona in whole or in part with respect to an execution against goods in the 
 same suit or matter, by the same sheriff: Ih. s. 2. No sheriff is allowed to niaice 
 a return of nulla bona either in whole or in part to any writ against goods until 
 the whole of the goods of the execution del)tor in his county have been exhausted: 
 lb. 8. 3. If the amount authorized to be made and levied under the writ against 
 goods be made and levied thereunder, the person issuing the writ against lauds is 
 not entitled to the expenses thereof or any advertisement or seizure thereunder : Ih. 
 8. 4. The return in such case required to be made by the sheriff to the writ against 
 lands is to the effect that the amount has been so made and levied as aforesaid: 
 lb. Writs against lands and goods are however to have the same operation and 
 binding effect as heretofore : lb. s. 5. This statute authorizes the issue of writs 
 against goods and lands at the same time, \vitli a, stay of proceedings against 
 lands till the goods are exhausted : see Gleason v. GUason et al, 4 Prac. R. 117. An 
 execution against lands so binds them that the owner can only convey subject to 
 the lien : see Burnham v. Daley, 11 U.C. Q.B. 211 ; liuttan v. Levisconte. lt> II. G. 
 Q. B. 495 : Wivkham et al v. The New Brtmswitk and Canada Railway Co. et al, L, U. 
 1 P. C. A. 04. Where writs are issued oppressively the court or judge has power 
 to grant relief: Anon. 4 Prac. R. 242. If the sheriff make a return erroneously 
 as to the writ under which he made the money, he may be allowed to amend it: 
 Zee et al v. Neikon et al, 14 U. C. Q. E. 000. So if there be any other mistake in 
 the return ; Bxdl v. King, 8 U. C, C. P. 474. lie will not in general be allowed to 
 make a special return : Ford v. Story, 1 Prac. R. 18. A writ will not be set aside 
 because the sheriff did not take any proceedings under it during its currency ; 
 Morrinon v. Rees, lb. 25. Before the issue of a Ji. fa. residue, a ven. ex. or alias 
 writ, the original should be returned: McMurrichv. Thompson, lb. 258. Where 
 part of a debt has been levied under afi.fa. and the writ returned, either aji.fd. 
 
246] 
 
 WRITS OF EXECUTION. 
 
 353 
 
 residue or an alias may issue : Lee el al v. Neihon et al, 3 U. C. L. J. 72. The for- 
 mer is the more correct: lb. It is an irregularity only and not a nullity to issue 
 an alia!> fi- /«• after a return of goods on hand : The Commercial Bank of Canada 
 T. McDuneil et al, 1 U, C. Q. B. 406. In determining the priority of writs the 
 court will look to the fraction of a day : Beekmnn v. Jarvis, 3 U. C. Q. B. 280. 
 An irregular writ will not be set aside on the application of a subsequent execu- 
 tion creditor: Farr v. Adcrli/, 1 U. C. Q. B. 337; Perrin v. Bowes, 5 I J. C. L. J. 
 138. A writ against the goods of a deputy sheriff may bo directed to the sheriff 
 and not to a coroner; Cordon v. Bonier, 6 U. 0. L. J. 112. An irregularity in 
 tiie issue of a writ may be waived by the laches of the defendant : Hayden et vx 
 V. Shearmaji,^ Jr. C. L. R. 169, A writ against lands bearing teste after the 
 death of the defendant is void: McCarthy y. Low, 2 O. S. 353. But if tested in 
 tiie lifetime of the debtor it may be executed after his death : Doe d. Hagtrman 
 V, Slrong et al, 4 U. C. Q. B. 510. A judgment against an executor to recover 
 ik bonis testaloris will warrant the issue of an execution against testator's lands, 
 on tiie return of nulla bona as against his goods : Doe d. Jessup v. Bartlet, 3 O.S. 
 206. In taking out a writ against executors for costs the costs directed to be 
 levied roust follow the judgment: The Core Bank v. Gunn et al, 1 Cham. R. 170. 
 An original writ of execution having been lost, plaintiff was allowed to issue a 
 duplicate in order to obtain a return upon which to found an alias : McEwen v. 
 Slontburne, T. T. 7 Wm. IV. MS. R. & H. Dig. " Fieri Facias," 10. The court 
 will not restrain a plaintiff from levying the whole of his debt on one of several 
 defendants: Zavitz v. Hoover et al, M. T. 2 Vic. MS. R. «fe H. Dig. " Execution," 2. 
 Qncere. Cnn an elegit be regularly issued in this Province to the prejudice of the 
 remedy of other creditors whose satisfaction from the sale of the lands would be 
 indefinitely postponed : Doe d. Henderson v. Burtch, 2 0. S. 5 1 6, per Robinson, C. J. 
 
 A /. fa. directed to no one is void, and cannot be amended after the retura 
 day or after a levy under it : Wood et al v, Campbell, 3 U. C. Q. B. 269. Af.fa. 
 lands tested after the death of defendant is void : McCarthy v. Low, 2 O. S. 353. 
 An amendment was allowed inf. fa. after a sale under it by the sheriff: Fleming 
 V. Executors of Wilkinson, T. T. 1 <fc 2 Vic. MS. R. & H. Dig. "Amendment," i. 1. 
 The court allowed an original^, fa. to au outer district to be amended by making 
 it a testatum and an original writ, to warrant the testatum to be sued out after the 
 first writ had been placed in the sheriff's hands : Fisher v. Brooks, 3 O. S. 143. 
 Testatum writs are abolished : section 247 ; and ground writs are unnecessary : 
 section 247. A fi. fa. was amended so as to have relation to the day of entry of 
 judgment: Andruss v. Page, Tay. Rep, 478. Fi. fa. to one county upon which 
 £10 levied. After return day, fi. fa. to a second county for original debt, and 
 without noticing £10 levy. Second writ set aside: McMurrich v, Thompson, 
 1 Prac. R. 258. After the expiration of f. fa, against lands, upon which proceed- 
 ings had been stayed by agreement between the parties, the court allowed an 
 alias to iss'ae, returnable at such a distance of time as to allow the sheriff to 
 advertise, <tc. : Kickall v. Crawford, Tay. Rep. 376. 
 
 Issue of a writ of ca. sa. allowed upon an affidavit, sworn before a judge of 
 Lower Canada: Coil v. Wing, 3 O.S. 439. On a return of devastavit, a ca. sa. 
 does not issue as a matter of course without enquiry : Willard v. Woolcott, Dra. 
 Rep. 211. Court refused to set aside a ca. sa. issued several terms after the return 
 of a/(. fa. goods: Glynn v. Dunlop, 4 O.S. 111. New ca, »a. refused although 
 debtor discharged from first writ by plaintiff's attorney, acting upon the errone- 
 ous impression that the debt had been compromised: Bradbury et al v. Loney, 
 H. T. 6 Vic. MS. R. & H, Dig. " Capias ad Satisfaciendum," 9. A ca. sa. com- 
 manding sheriff to detain defendant in custody until he should satisfy plaintiff, 
 without stating amount of debt to be recovered, held void : Henderson v. Perry 
 (tal, 3 U. C. Q. B. 252 ; Billings et al y. Rapelje et al, E. T, 4 Vic. MS. R. <fe H. 
 Dig. " Amendment," i, 2. Where the Christian name of a defendant was errone- 
 
 23 
 
<mm 
 
 854 THE COMMON LAW PROCEDURE ACT. [s. 247. 
 
 Writ to 347. ((0 It shall Dot be necessary to issue any Writ 
 
 the County directed to the Sheriff of the County in which the venue k 
 wlu'e is'" laid, (e) but Writs of Execution may issue at once into anj 
 be'(iiTi.tu8cd County and be directed to and executed by the Sheriff of any 
 *'"'*■ County without reference to the County in which the venve 
 
 is laid, and without any suggestion of the issuing of a prior 
 Writ into such County. (/) 19 Vic. c. 48, s. 186. 
 
 pi:.v,:V 
 
 ',' r.i ■' 
 
 
 im 
 
 ously given in a ea, sa. the conrt refused to allow amendment : Allison v. Iran. 
 tiaf, M. T. 1 Vio. JUS. R. & H. Dig. " Amendment," i. 3. Not necessary for 
 plaintiff wlio had two Christian names to state the second in an affidavit of debt 
 where his identity sufKciently appeared by the affidavit: Perkini v. Connolly 
 4 O.S. 2. 
 
 Tliere is a choice of offices held out to plaintiff— either tho office in which 
 judgment is entered, if tlie office of a deputy clerk, or the office of tho chief clerk 
 at Toronto, the latter only apparently " after tho transmission of the roll." Chief 
 Justice Draper, under the old practice, in a case before him, in general terms 
 expressed himself as follows: "In order to justify the issuing of any writ of exe- 
 cution, alias and pluries, and a fortiori original from the office of a deputy cl'^rk of 
 the crown, it is necessary that the judgment shoiild have been enterecl there;" 
 . Dalryrnple v. Mullen,, 1 Prac, R. 327, note a. The facts of the case were that on 
 tho 6th February, 1844, a.^. fa. issued from the principal office at Toronto, to the 
 sheriff of Gore, which was returned to and filed in the same office on 18th March, 
 1862. A fi. fa. against lands, issued from the office at Toronto on 16th March, 
 1853. On 6th November, 1862, an original writ against goods issued from the 
 office of the deputy clerk of the crown at Hamilton (a prcecipe for that writ beinj; 
 the only paper in the cause in that office) directed to the sheriff of Wellington, 
 Waterloo and Grey. Writ sot aside, upon the ground that it was " irregular to 
 issue a writ of execution out of the office in which there have been no previous 
 proceedings in the cause, and in which there is no judgment entered, or otiier 
 matter upon which the officer of the court is presumed to found the exenution, 
 the award of which is technically presumed to be upon the roll." Subsecfuently it 
 was decided by Chief Justice Richards, in a case oefore him, in Practice Conrt, 
 where the papers had been filed in the office of a deputy clerk of the crown, 
 though judgment was entered in Toronto, that a pluries writ of ^eri facias \»mei 
 from the office of the deputy clerk was regular : The President, Directors and Com- 
 pany of the Gore Bank v. Ounn, 1 Prac. R. 323. 
 
 (d) Taken from Eng. Stot. 15 & 16 Vic. cap. 16, s. 121. Substantially the 
 same as Stat. U. C. 7 Wm. IV. cap. 8, s. 33. Founded upon the first report of the 
 Common Law Commissioners, section 76. 
 
 (e) The contrary was the rule that prevailed in England before the passing of 
 the English C. L. P. Act, 1862, though in practice often neglected. But in this 
 Province the practice enacted by this section has prevailed since 1837: Stat. U. 
 C. 7 Wm. IV. cap. 3, s. 33. The execution, however, should in all cases strictly 
 conform to the judgment upon which it is issued: see Kinff v. Birch, 3 Q. B. 425; 
 Phillips V. Birch, 2 Dowl. N.S. 97. 
 
 (/) The writ formerly issued into the county in which the venue was laid was 
 called the ground writ. That to any other county was grounded upon it and was 
 known as a testatum. The former was by Stat. 7 Wm. IV. cap. 3. s. 33, abolished, 
 and the latter, instead of being a testatum, becomes in consequence an originul 
 writ 
 
24^, 249 ] PURATION OF WRITS OF EXKCUTION. 
 
 856 
 
 248. (if) Where, at the time this Act takes effect, it is it simii Rtiii 
 
 . o .. • i »L 1)0 lllMICHHliry 
 
 nnccssnry to sue oat process ut execution ngtiuist the person toHuiMmt 
 info iiiiy particular County in order to charge bail, (/t) the turi'iio'i'er " 
 same shall continue to be necessary, notwithstanding anything timrtjo bull. 
 
 taitied in this Act. (/) 7 Wm. IV. c 3, s. ^3. 
 
 con 
 
 340. (i) Except Writs of Capias ad Satisfaciendum, {Ic) Duration of 
 every Writ of Execution shall bear date and be tested on the Exucution. 
 day on which it is issued, (/) and shall remain in force for one 
 year from the teste, (m) and no longer if unexecuted, (inm) 
 
 (g) Taken from 7 Wm, IV. cap. 8, s. 33, which wjis an original provision in 
 this rrovincc, and at the timo it was passed in advance of any similar provision 
 in England : see note e to section 247. 
 
 (/() Tiie prisoner must be charged in execution within the term next after trial 
 or judgment: N. R. 99. 
 
 (i) A ca. ta. lodged in the sheriff's office to charge the bail (see section 273) is 
 not a ciinrging in execution: Dorman v. Rawson, Tay. Rep, 266 ; Ilesketh v. Ward, 
 4 Prac. li. 158. It is not necessary that fifteen days should elapse between the 
 teste anil the return of the ea, sa. : Beatty v. Taylor, 2 Prac, R. 44 ; lieattie. v. 
 McKay et al, 2 Cham. R. 66. The fact that a plaintiff has not charged the 
 debtor in execution in two months after judgment ia no ground for ordering an 
 exonerfitiir of the bail-piece : Torrance et al v. Ilolden et al, 10 U. C. L. J. 298. 
 The vacation succeeding a term is not to be considered for the purpose of charg- 
 ing a defendant in execution as part of the preceding term : Reid et al v. Drake, 
 4 Prac. R. 141. 
 
 (;■) Taken from Eng. Stat. 16 <fe 16 Vic. cap. 76, s. 124, from which it differs in 
 some particulars hereafter noted. Founded upon the first report of the Common 
 Law Commissioners, section 78. 
 
 (i) Aa to which see section 272 of this act. 
 
 (/) A writ of assignment of dower is within the meaning of this section, and 
 may be tested on the day when issued : Fisher v. Orace, 28 IT. C. Q. B. 3 1 2. The 
 court will not interfere with the discretion of a judge at Chambers, where upon a 
 summons to set aside an execution for irregularity with costs he makes the order 
 AS asked, adding as a condition that the defendant bring no action ; Bartlett r. 
 Stinton, L. R. 1 C. P. 483. 
 
 (m) The day of the teste of a writ of yf. fa. is inclusive, so that a writ of ^. fa. 
 issued on 16th May, 1861, will expire on i5th May, 18(52: The Bank of Montreal 
 y. Taylor, 15 U. C. C. P. 107; and therefore a writ issued on 27th i\x\y, 1861, 
 renewed 22nd July, 1862, was held entitled to prevail over a writ issued on 16th 
 May, 1861, but not renewed till 16th May, 1862: lb. 
 
 [mm) The object of this section is to secure execution creditors entitled to 
 priority of execution, and at the same time prevent them from committing frauds 
 upon other creditors coming after them. There is no doubt if a sheriff be in 
 receipt of several executions at the suit of different creditors against the same 
 debtor, and all the writs be cnrrent, that he is bound to give precedence to the 
 writ which was first delivered to him for execution : Hutcfumon v. Johnston, 1 T. 
 R. 729 ; Bradley v. Wyndham, 1 Wils. 44 ; Kempland v. Macauley, 4 T. R. 436 ; 
 Pringk v. Isaac, 11 Price, 446 ; Bnudkomb v. Cross, I Ld, Rayd. 251 ; Drew v. 
 
 ft;- 
 
8.06 
 
 nfncw;il. 
 
 THK COMMON LAW PROCEDURE ACT. 
 
 [h. 240. 
 
 utik'fs renewed, but such Writ may, at any time before its 
 expiration, and so from time to time during the continuance 
 of the renewed Writ, bo renewed by the party issuing it for 
 one year from the date of such renewal, by being marked in 
 
 ;'*■; 
 
 ''■If ,< 
 
 pv - 
 
 
 n 
 
 
 < , •) 
 
 
 SS ' 
 
 Sb 
 
 I'Ti ■■ te * ' 
 
 
 
 Lniiiiton el al, 1 1 A. «t E. .520. But if tlie first writ bo delivered with ingtnictions 
 not to lovy or bo otiierwine counterniandc'i, ii, 's not a writ upon wliich tho 
 BheritF can net, nnd tliercforo loses its priority: Payna v. 2>reMje, 4 Kast. 623' 
 Jurien V. Athcrton, 7 Taunt. 60; Smnnel v. iJuke tt al, 6 Dowl. V. C. 5;i6 ; Ilnui 
 V. Uotijttr el al, 1 D. <fe L. 626; Howard v. C'auti/, 2 D. «fc L. 115; Fonltretal 
 V. <Smi//*. 13 U. C. Q. 13. 243; Cantle v. liultan, 4 U. C. C. P. 2B2 ; 7un/v,« v, 
 Jenuhif/K ft al, 3 Ir. C. L. R. 48 ; Jioss et al v. Uamiltm, E. T. 3 Vic. MS. R. A JJ. 
 Difr. " Fnlso Kuturn," 8 ; Slravge v. Jarvis, 6 0. S.. 160 ; lie Fair and Bw»t, 
 2 U. C. L. J. N. S. 216. And where goods seized under a f-f'^- founded on 
 a judgment fraudulent against creditors remain in tho sheriff's hands or ore 
 capaliie of Ijcing seized by him, lie is compellable to sell and seize such gooch 
 under a subsequent execution founded on a ftona ^(('e debt : Imray v. Mfirjnay H al, 
 1 1 M. «t W. 2t:.7 ; Chrhtopheraon v. Ihirton, 3 Ex. 160. If the first writ though hom 
 fide renuiin one year unexecuted, it lapses so as to let in subsequent executions: 
 Doe d. Greemhkldit v. Garrow, 6 U. C. Q. H. 237. When a writ can bo said to be 
 executed so as to satisfy this section, is a question. Nothing, at all events, short 
 of an actual seizure can, it is apprehended, be considered an execution of a writ 
 of^'. /«. against goods. Wliether a partial levy will be sufficient, remains to be 
 deiiilcd. Writs of execution in England, under Stat. 3 & 4 \Vm. IV. cap. C?, ?, 2, 
 are made returnable " immediately after the execution thereof." And under that 
 statute it has been held that partial execution is not the execution intended: 
 Jordan v. iSiuckeit, 13 Q. B. 757. Denman. C. J., "I do not see where the line is 
 to be drawn, short of complete execution, to limit tho force and duration of tho 
 writ. Tlie defendant's construction, namely, that the writ is executed as soon as 
 the sheriff may return nulla bona either in whole or in part, requires authority 
 to sup])<)rt it; and such autiiority as thero is, seems to be quite against it.' 
 I'atteson, J., " I cannot see at what point the sheriff can stop before comfihte 
 execution. Formerly, if other goods came into his bailiwick after a partial levy 
 and before the return of the writ, the sheriff was bound to seize them, and lie is 
 equally bound to do so now, until the writ has been completely executed." The 
 reasoning of this decision is obvions. A writ of execution not being made return- 
 able at a fixed day or within a limited period from tho teste, but only when 
 executed, it may be well said that a writ on\y partially executed continues current 
 quoad the residue because not yet fully executed and consequently not yet retnrn- 
 able. Where shortly before the return of a fi. fa. against lands the pinintih' 
 therein obtained it from the sheriff for the purpose of renewing the writ, and did 
 not return it for fifteen days thereafter, when the year from the teste had expired, 
 it was held that under these circumstances there was no abandonment of the 
 plaintiff's rights under the execution : Meneilly v. McKenzie, 3 Er. & Ap. 2'i'.', 
 It only remams to be observed that since the C. L. P. Act all executions again>t 
 goods and chattels issued from our superior courts of common law are, " 
 England, made returnable " immediately after the execution thereof." A f 
 failing to return such writ within a " reasonable time" after receipt then 
 liable to be ruled in the ordinary manner. To constitute a reasonable time t 
 must be allowed the sheriff time to tiu/el to the residence of defendant, uiutv 
 an inventory of his goods, return to his office, advertise and sell. It is the 
 duty of the sheriff in every case where goods seized by him under execution 
 remain unsold on his hands for want of buyers, to state and specify in hi! 
 return of "goods on hand" the time and place when and where such goods 
 Avere offered for sale by him, and tho names of at least three persons whe 
 
8.240.] 
 
 RENEWAL OF WUITS OF EXECUTION. 
 
 857 
 
 tlic iiiiiriiin, with a menioranduni, to the effect fullowin<r : 
 
 "rioiicwod for one year from tlie day of ," 
 
 eiijnt'd liy the Clerk or Deputy Clerk of the Crown or Ch rk 
 
 ot the County Court who issued such Writ, or by hi.s huc- 
 
 tcssor ill office; (n) and ii Writ of Execution so renewed i;ii"itor 
 
 .khiill have the eflect and be entitled to priority uecoiding to 
 
 ihc time of the ori<;inal delivery thereof to tho Sheriff. {<>) 
 
 10 Vic. c. 43, 8. 189. 
 
 wiMo proscnt nt tlio time of sucli nttcinjtted sale ; but if so innny wito not 
 present, tluiii tlio tinnies of tliose wlio were present, if nny, iinil Hint tliero 
 wc'i'c nu otlit'i's, and if no persons were prcf-ciit llicii to blato tlii^ fact: 27 «t 
 2S Vio. caj) '28, s. 27. ^Vilero nn execution wa.s levied by seizure, but tlio sale 
 win sM-iiiciided by nn inter|)lencler order, and before sale n petition for adjudiea- 
 tiim (if Imiikruptcy was filed ngainst tlio execution debtor, on wliieli lie was after- 
 wiir !n a(ljud;;ed bankrupt, tlio case was held to bo within the Haiikrui)t<!y Consol- 
 itliitcd Act (12 & in Vie. cap. 106, s. 184) and tho execution creditor deprived of 
 the benefit of his execution : O'Brien v. lirodie, L. R. I Ex. 802 ; see al.so Converse 
 ital V. Mkhie, 10 U. C. C P. 107. Tho law was held otherwise when at tho tima 
 of the issue of attachment in insolvency tho debtor's ejoods had been converted 
 into money: Whi/lc v. Treailwell, 17 U. C. C. P. 488. It is now declared that no 
 Th'ii or privilege upon either tho personal or real estate of the insolvent shall bo 
 ereated for the amount of any judgment debt, or of tho intevest thereon, by tho 
 i.s.<ui' or delivery to tho sherilf of any writ of execution, 'jr by levying upon or 
 eeizing under such writ the eflects or estate of the insolvent, if before tho pay- 
 ment over It; i.tie ))lnintifr of tho moneys actually levied under sueh writ tho cstato 
 of tlie debtor shall have been assigned to nn interim assignee, or shall have been 
 [iliiced in compulsory liquidation: Stat. Doni. 32 A, .<3 Vic. cap. 10, s. 59. But 
 tliid provision ia not to affect any lien or privilege acquired before the passing of 
 tlie act, or any privilege for costs which the plaintiti' possesses under tho law of 
 tile |)roviiieo in which tho writ shall hnvo issued, by reason of such issue, deli- 
 very or seizure : In re Heyden, 29 U. C. Q. B. 262. 
 
 («) It was held under this section as it originally stood, that a writ of execu- 
 tiiia could only bo once renewed, and if then unexecuted it expired : Neihon v. 
 JiirviH, YA U. ('. C. P. 176. But tho legislature nfterwards amended the section 
 by inserting after the word "expiration" tho words "and so from time to time 
 (liirln;^ tho continuance of tho renewed writ:" 27 Vic. cap. 13, s. 2; and tho 
 amending act has since been held not to be retrospective in its operation: Milter 
 V. Tlie JJmvcr Mutual Fire Insurance Association, 14 U. C. C. P. 399. Ko renewal 
 Ciin tiikc place when the writ has been acted upon or levy has been made: Neilson 
 '- ' .C. C.P. 176. 
 
 ") In order that tho clerk may mark tho writ with tho memorandum in the 
 1 r^iii it will '>e necessary to procure the execution from the sheriff, though for 
 all ordinary poses he is entitled to keep it in his possession: see Menei/h/ v. 
 JkKnuie, a i.,. &. Ap. 209. Before this act there was no method of renewing an 
 ey It ion unless bj' having the original returned and an alias or plurics issued. 
 I iS let in all intermediate executions; for the original execution lost priority 
 
 II the time when it became returnable. To avoid this tho original is supposed 
 to (tititinue in the possession of and under tho control of the sheriff, though for a 
 short time for the purposes . renewal he must in fact part with it or else himself 
 lake it to the proper ofticer to bo renewed, if willing so to do, upon the request of 
 tJie party whose execution it is: see Muir et al v. Munro, 23 U. C. Q. B. 139. 
 
 E W 
 
 t 
 
 R * . 
 

 
 358 
 
 THE COMMON LAW PROCEDURE ACT. [SS. 250-252. 
 
 •■1 
 
 'H 
 
 1 
 
 
 r ! ' 
 
 ? '• 
 r 
 
 ' *»* Xi «e! 
 
 1 
 
 &if '' 
 
 
 '|B : 
 
 V 
 
 h H, 
 
 Evidence of 3^0. (a) The production of a Writ of Execution, marked 
 reiiewui. ag renewed in manner aforesaid, (6) shall be suflScieut evi- 
 
 denoe of its having been so renewed, (c) 19 Vic. o. 43 
 
 s. 190. 
 
 When lands 
 not liable 
 unless tlie 
 judgment 
 exceeds for- 
 ty dullars. 
 
 Writs 
 against 
 lands may 
 issue at 
 same time 
 as writs 
 agiiinst 
 gLuds. 
 
 331. {(I) In cabe any suit of the proper competence of a 
 Division Court be brought in a Superior Court, or in a 
 County Court, no execution against lands shall issue, unless 
 the amount of the judgment exceeds forty dollars, (e) 1.3 & 
 U Vic. c. 53, 8. 78. 
 
 ftS2, (/) Any person who now is or hereafter may be. 
 come entitled to issue a writ of execution against goods and 
 chattels may, at or or after the time of issuing the same, issuj 
 a writ of execution against the lands and tenements of the 
 person liable, and deliver the same to the Sheriff to whom 
 the writ against goods is directed, at or fii'ter the time of 
 delivery to him of the writ against (^) goods, and either 
 
 (a) Taken from Eng. Stat. 15 «fe 16 Vic. cap. 16, s, 125. 
 (h) See section 249. 
 
 (c) i. e. Without proof of signature or seal. 
 
 (d) Taken from tlie Consolidated Division Court Act 13 ife 14 Vic. c. 53, s. 18. 
 
 (e) In case an execution in a division court be returned nulla bona, and the 
 sum remaining unsatisfied in the judgment under which the execution isued 
 amounts to the sum of forty dollars, t'v) plaintiff or defendant may obtain a tran- 
 script of the judgement from the clerk, under his hand and sealed with tlie seal 
 of the court, which transcript shall set forth — 
 
 1. Tlie proceedings in the cause. 
 
 2. The date of issuing execution against goods and chattels. 
 
 3. The bailiff's return of nulla bona thereon as to whole or part. 
 
 And upon filing such transcript in the office of the olerk of tlie county court in 
 the county where such judgment has been obtained or in the county where tlio 
 defendant's or plaintiff's lands are situate, the same shall become a judgment of 
 such county court: Con. Stat. U. C. c. 19, ss. 142, 143. 
 
 If the transcript omit anj' of the above requii h1 particulars it will be n nullity, 
 so that no fi- f<i. lands ca" be issued thereon: j^arr v. Robins, 12 U. C. C. 1'. 35; 
 Jacomb v. J/cnry, 13 U. C. C. P. 377 ; Hope v. Graves, 14 U. C. C. P. 393. But if 
 it be correct so as to become a judgment of the county court for any purjiose, it 
 becomes so for all purposes, including examination and commitment of the judg- 
 ment debtor : Kehoe v. Brown et al, 18 U. C. C. P. 649. 
 
 (/) Taken from Stat. Out. 31 Vic. cap. 2.5, s. I, which repealed section 252 of 
 the C. L. P. Act, and suatituted this section therefor. 
 
 (c;) It is often made a question ns to what estates or interests in lands can or 
 may be sold under an execution against lands. Mere possession constitutes prima 
 facie a seisin in fee, which can only be sold on an execution against lands : ])oe 
 d. Keoijh V. Calhoun, 1 U. C. Q. B. 157. But it has been held that a more right 
 
s. 
 
 253.] 
 
 INVENTORY OP GOODS SEIZED IN EXKCDTION. 
 
 359 
 
 before or after any return thereof: Provided, always, that Proviso, 
 the Sheriff shall not expose the lands for sale, or sell within blfsou'r ° 
 less than twelve months from the day on which the writ yelr.'" " 
 anmt the lands is delivered to him. (Ji) 
 
 INVENTORY AND SALE OF GOODS. 
 
 253. (y) In case any goods or chattels be seized in sheriff to 
 execution under a writ issued out of either of the Superior ven'tdry'to 
 Courts of Common Law or of any County Court, the Sheriff, ^Jf °^^""' 
 his deputy or officer, who seized the same, shall, on request. 
 
 of action or entry on lands is not saleable under execution : JDoe d. Ausman et al v. 
 Minthorne, 3 U. C. Q. B. 423. Nor can bo a mere trust estate : Doe d. Sbnpxon v. 
 Privat, 5 U. C. Q. B. 216. A rent-chnrge issuing out of and chargeable upon a 
 freehold estate is not subject to be seized and sold as a chattel : Smith v. Tnrnbnll, 
 lb, 586 ; but may be seized on an execution against lands : Dmigall v. Turnbull, 
 lOU. C. Q. B. 121. The interest of a reversioner in lands may be seized dur- 
 ing tliG lifetime of the tenant for life : Doe d- Cameron v. Robinson et al, V U. C. 
 Q. B, 835. When real property is conveyed to trustees for the satisfaction of 
 debts, so as the sale be made within a certain period, and tlie sale be not made 
 ffitiiin that period, no use results to the grantor that can be seized in an execu- 
 tion n][|ninst lands : Doe d. Laicrason v. The Canada Company, 6 0. 8. 428. Lands 
 lield ill fee simple by a debtor at the time of his death may bo seized on a judg- 
 ment against his executor or administrator in respect of the debt of the deceased : 
 Gardener v. Gardener, 2 O.S. 520; Stat. 27 Vic. cap. 15. But no such sale ca.i be 
 iiad on a judgment against the administrator of the administratrix of the deceased : 
 %aff« et al v. Reid, 15 U. C. C. P. 400. And now a contingent, an executory, and 
 a future interest, and a possibility coi'pled with an interest in any land, whether 
 the object of the gift or limitation of such interest or possibility be or be not ascer- 
 tained ; also a rij,ht of entry, whether immediate or future, and whether vested or 
 contingent into or upon any land, may be disposed of by deed : Con. Stat. U. C. cap. 
 90, s. 5. And any estate, right, title, or interest in lands which may be so con vpyed 
 or assigned by any party, is liable to seizure and sale under execu' 'on against such 
 party: lb. s. 11. But a right to dower without entry is not "a contingent or 
 executory or a future interest or a possibility coupled witli an interest," within 
 the moaning of the statute, and so is not subject to execution : McAnnany v. 
 TmnbnU, 10 Grant. 298. 
 
 [h] Does this mean that lands liable to be sold upon a writ must be lands in 
 the hands of an execution debtor at the time the writ is placed in the liands of 
 the sheriff? or does it mean that lands acquired subsequently may be sold imme- 
 diately after the expiration of twelve months, provided the slierifT has advertised 
 the lands for the required time? or does it mean that although the lands would 
 be liable to seizure during the currency of tho writ, tlie sheriff must hold the 
 writ over it for twelve months before he can sell ? Lands acquired while the writ 
 is in the sheriff's hands may bo sold under it if properly advertised, though they 
 have not been twelve months owned by tho debtor : Ruttan v. Leiiisconte, IC LT. 
 C. Q. B. 495, per Burns, J. An alias Ji. fa. need not bo twelve months in tho 
 hands of the sheriff before sale: Nickall v. Crawford, Tay. Uep. 2'77; Rutlan v. 
 Levimnle, 16 CJ. C. Q.B. 500; Campbell v. Delihanty et al, 24 U.C. Q.B. 230; see 
 further as to irregularities in writs of execution note c to section 246. 
 
 U) Taken from our old Statute 49 Geo. III. cap. 4, s. 5. 
 
860 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 254. 
 
 1^1 
 
 
 f 1 
 
 1^: 
 
 '■\''' , 
 
 Goods, kc, 
 exeiniiti'd 
 from execu- 
 tion. 
 
 deliver to the owner, his agent or servant, an inventory thereof 
 before they are removed from the premises on which they 
 have been so seizec'. ; {k) and no Sheriff or other officer shall 
 sell any effects under a Writ of Execution until he has, pre- 
 viously thereto, given at least eight days* public notice in 
 ■writing of the time and place of sale, at the most public 
 place in the Municipality, where such effects have been tnken 
 in execution. (0 51 Geo. III. c. 6, ss. 2,3; 49 Geo. III. 
 c. 4, s. 5. 
 
 254. (m) The goods and chattels exempt by law from 
 seizure, (»i) shall not be taken in execution under any Writ 
 
 {k) The object of this section is the protection of the execution debtor from 
 the abuse of the process of the court by the sheriff or nny of liis officers. The 
 request need not be in writing, and when made should be complied with before 
 the goods or chattels are removed from the premises on which they have been 
 seized. 
 
 ■ {I) Where the writ is in itself regular, the omission of the sheriff to advertise 
 will not, it is apprehended, affect the purchaser at the sale : Paterson v. Todd, 
 24 U. C. Q. B. 29(5 ; and certainly is no ground for setting aside the writ, tliough 
 the advertisement be not made till the writ is spent: Morrison v. Rees, 1 Prac. 
 E. 25. 
 
 (m) This is substituted by Stat. 23 Vic. cap. 25, s. 3, for the original clause of 
 this act corresponding in number with the one here annotated. 
 
 (n) The following are the exemptions : 
 
 1. The bed, bedding and bedsteads in ordinary use by the debtor and Lis 
 family; 
 
 2. The necessary and ordinary wearing apparel of the debtor and his family ; 
 
 3. One stove and pipes, and one crane and its appendages, and one pair of and- 
 irons, one set of cooking utensils, one pair of tongs and shovel, one table, six 
 chairs, six knives; six forks, fiix plates, six teacups, six saucers, one sugar basin, 
 one milk jug, one tea pot, six spoons, all spinning wheels and weaving looms in 
 domestic use, and ten volumes of books, one axe, one saw, one gun, six trnps, and 
 such fishing nots and seines as are in common use ; 
 
 4. All necessary fuoi, meat, fish, flour and vegetables, actually provided for 
 family use, not more than sufficient for the ordinary consumption of the debtor 
 and his family for thirty days, and not exceeding in value the sum of forty 
 dollars ; 
 
 C. One cow, four sheep, two'hogs, and food therefor, for thirty days ; 
 
 6. Tools and implements of or chattels ordinarily used in the debtor's occupa- 
 tion to the value ot sixty dollars. 
 
 There can be no exemption against the crown: Rcrjina v. Davhhon, 21U.C.Q.B. 
 41. Nor is any chattel mentioned in sub-sections 3, 4, 5 or 6, exempt from seizure 
 in satisfaction of a debt contracted for such identical chattel : 23 Vic. cnji. 25, s. 5. 
 So goods and chattels as respects debts contracted before Utth May, ISilO, remain 
 liable to seizure and sale under execution, provided the writ of execution under 
 which they are seized has indorsed upon it a certificate, signed by the judge of the 
 Court out of which the writ issues, certifying that it is for the recovery of a debt 
 
8. 255.] 
 
 STOCKS SEIZED UNDER EXECUTION. 
 
 861 
 
 from cither of the said Superior Courts, or from any County 
 
 Court, {o) 
 
 STOCK MAY BE SOLD. 
 
 253. (p) The stock held by any person in any bank or Bank stock 
 
 .XT /-111" i"'l other 
 
 Id any corporation or company in Upper Canada, having a stocks may 
 joint transferable stock, (j) may be taken and sold in execu- e.w'utioa. 
 tion ill the same manner as other personal property of a 
 debtor, (r) 2 Wm. IV. c. 6, s. 1 ; see 12 A^ic. c. 73, s. 1. 
 
 before 10th May, 1860: Stat. 24 Vic. cap. 27, 8. 2. A debtor may select out of 
 anv Inrger number the several chattels mentioned as exempt from seizure : Stat. 
 23 Vic. 014). 25, s. 6. Jewellery, it would seem, is not necessary wearing apparel, 
 60 03 to be exempt : ilontague v. Richardson et al, 24 Conn, liep, 338 ; I'owus v, 
 Prall, 33 N. II. 345. 
 
 (0) In an action against a sheriff and his sureties, for not paying over moneys 
 levied under a fi. fa. it appeared that certain goods of one II. had been seized by 
 the slicriff at plaintiff's suit, and claimed by the debtor's brotber under a sale which 
 tlie plaintiffs alleged to be fraudulent. The debtor also claimed exemption for $60 
 worth of goods under 23 Vic. cap. 25, and these latter goods the shevifT sold under 
 a subsequent execution, the debt for which had been recoverea before 19th May, 
 181)0, ns appeared by an exemplification of the judgment. Held that plaintiffs 
 could have no claim in respect of such goods, for they were exempt from their 
 writ under 23 Vic. cap. 25, and, even if not subject to the other execution, the 
 sheriff was responsible to the execution debtor, not to the plaintiff, for the pro- 
 ceeds: mchk et al v. Reynolds, 24 U. C. Q. B. 303. 
 
 (p) Taken from repealed statute of Upper Canada 2 \Vm. IV. cap. 6, ss. 1, 2. 
 The leijislature of Canada afterwards passed an act " to make better provision for 
 the seizure and sale of shares and dividends of tbe stockholders of all incorpo- 
 rated companies : 12 Vic. cap. 23. The latter is still in force as Consol. Stat. Can. 
 cap. 70. Tlie two acts must be read together as if one act : Goodwin v. Ottawa and 
 J'nscott Railway Co. 22 U. C. Q. B. 186. 
 
 (7) All shares and dividends of stockholders in incorporated companies are to 
 be held, considereo and adjudged to be personal property, and liable as such to 
 loiiafiile creditors for debts: Con. Stat. Can. cap. 70, s. 1. All corporations estab- 
 lished for purposes of trade or profit, or for the construction of any work, or for 
 any purpose from which revenue is intended to be derived, are to be deemed 
 incorporated companies for the above mentioned purposes, though not called 
 conipftiiles in the act or charter incorporating them : Jb. s. 7. The .shares are to 
 be held personal property found by the sheriff in tlie place where the notice of 
 seizure may be made : lb. a. 5. The shares of individual proprietors in a railway 
 ooiiipimy are not to be deemed either an interest in land or goods and merchan- 
 dize, wi'thin the Statute of Frauds : Ihimhle v. Mitchell, 1 1 A. «fe E. 205 ; Bradley 
 V. Ihhhivorlh, 3 M. <fe AV. 422; Dancujt v, Albrecht, 12 Sim. 189, TcmpeH et al 
 V. KUner, 3 C. H. 249; see further Pierpoint v. Brewer, 15 M. it W. 201 ; Freeman 
 V. Appteyard, 7 L. T. N.S. 282. However, shares in a canal c()m}>nny liave been 
 lield to pass to the assignees of a bankrupt as personal estate : Ex parte Lancaster 
 Caml Nacigation Co. 1 Deac. & Clut. 411. 
 
 ()•) The sheriff to whom the writ of execution is addressed, on being informed 
 on behalf of the plaintiff that the defendant has stock in an incorporated com- 
 pany, and on being required to seize such stock, must forthwith serve a copy of 
 
 vAfi 
 
 km 
 
 1.*' 
 
 \ ^ 
 
 \UiM^mWi 
 
3G2 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 256. 
 
 
 >5\ 
 
 
 
 
 
 m 
 ■J 
 
 ■■•! ■'- 
 
 :i 
 
 SI 
 .1511 
 
 i 
 
 To be trans- 3«S6. (s) UpoD the production of a certificate under the 
 ceitiiii atidf band and seal of office of the Sheriff, declaring to whom any 
 stock taken upon an execution has been sold by him, Q) the 
 cashier of the bank, or the proper officer of any other such 
 company or corporation, the stock of which has been sold 
 shall transfer such stock from the name of the original stock- 
 holder to the person named in the certificate as the purchaser 
 under the) execution ; («) and such purchaser shall thence, 
 forth be entitled to receive all dividends and profits arisin" 
 from such stock, and in all other respects be considered in the 
 place of the former stockholder, (v) 2 Wm. IV. c. 6, s. 2. 
 
 the writ on the company, with a notice that all the sliares which the defendant 
 may have in the stock of such company are seized : Con. Stat. Can. c. 70, s. 3. . 
 From the time of such service no transfer of stock by tlie defendant is valid unless 
 or until the seizure is discharged : lb. Every such seizure and sale under the 
 same includes all dividends, premiums, bonuses, or other pecuniary profits upon 
 the shares seized : lb, The same, after notice from the sheriff, are not to be paid 
 by the company to any party except the party to whom the shares may be sold 
 by the sheriff unless and until the seizure be discharged, on pain of paying the 
 same twice: lb. If the company have more than one place where service of pro- 
 cess may be legally made upon them, and there be some place where transfers of 
 stock may be uotihed to and entered by the company so as to be valid as regards 
 the company, or where any dividends or profits on stock may be paid, other 
 than the place where service of such notice has been made, such notice sliull 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 bona fide purchaser until after the expiration of a period from the 
 time of service sufficient for the transmission of notice of such service by post 
 from the place where it has been made to such other place : lb. s. 4. It is the 
 business of the company to transmit the notice : lb. 
 
 (s) Taken from our repealed Statute of Upper Canada, 2 Wm, IV. cap. 6, s. 2, 
 and to be read in connection with Con. Stat. Can. c. 70, formerly Stat, of Canada, 
 12 Vic. cap. 23: Goodtvin v. The Oltatva and Prescott Railway Co. 22 U. C. 
 Q. B. 186. 
 
 (<) Whenever any share has been sold under a writ of execution, the sheriff by 
 whom the writ has been executed must, within ten days after the sale, serve upon 
 the incorporated company, at some place where service of process upon such com- 
 pany may be made, an attested copy of the writ of execution, with his certificate 
 endorsed thereon, certifying to whom the sale of snch share has Iieeu by him 
 made: Con. Stat. Can. c. 7U, s. 2. 
 
 (w) The officer will not be compelled by mandamus to perform this duty unless 
 all the requirements, as well of the section annotated as of Con. Stat. Can. c. 70, 
 have been complied with: Goodwin v. The Ottawa and Prescott Railway Co. 
 22 U. C. Q. B. 186. Therefore where it was not shown that a copy of the writ 
 had been served, together with the certificate, the plaintiff, who sued under the 
 C. L. P. Act, claiming a mandamus, failed in his action : lb. 
 
 (t>) The person purchasing shall thereafter be a stockholder of the shares and 
 have the same rights and bo under the same obligations as if he had puruliased 
 
 .'S 
 
 m 
 
ss. 257, 258.] seizure of mortgagor's interest. 
 
 863 
 
 957. (a) The Sheriflf or other officer to whom any Writ The interest 
 of Fieri Facias against the lands and tenements of any Mort- gois'may'bo 
 facor of Real Estate is directed, (i) may seize or take in exe- cutiJu. * 
 
 d"o 
 
 cution, sell and convey, (in like manner as any other Real 
 Estate might ha seized or taken in execution, sold and con- 
 veyed,) (c) all the legal and equitable interest of such Mort- 
 gagor in the Mortgaged lands an'' tenements, (t^). 12 Vic. 
 
 c ( 
 
 3, s. 1. 
 
 258. (e) The effect of such seizure or taking in execu- Effect of 
 lion, ^ile and conveyance, of any such Mortgaged lands and '*"^'' '*"'"' 
 tenements, (/) shall be to vest in the purchaser, his heirs 
 and assigns, all the legal and equitable interest, of the Mort- 
 
 tlie slinres from the proprietor thereof, in such form ns ma}' be by law provided 
 for the transfer of stock in the company : Con. Stat. Can. u. 70, s. 2. 
 
 (a) Taken from our repealed Statutes of Canada, 12 Vic. c. 73, s. 1, which for 
 the tirst time in this Province subjected an equity of redemption to sale under a 
 common law execution against the lands of the mortgagor. 
 
 (4) Tiiis act as first passed only authorized the sale of the legal and equitable 
 interest of tlie mortgagor on a judgment recovered against him and on an execution 
 i-sued against his lands and tenements: The Bank of Upper Canada v. Broiigh, 
 8 U. C. L. J. 264 ; but see new Stat. 27 Vic. cap. 13, s. 1. 
 
 (f) See section 252 of this act and notes thereto. 
 
 (d) It is now declared by statute that the word "mortgagor," whenever it 
 occurs ill tliis section or in the 258 and 259 sections of this act, shall be read and 
 construed as if tiie words " his heirs, executors, administrators or assigns, or per- 
 son imving the equity of redemption," were inserted immediately after such word 
 "mortgagor:" 27 Vic. cap. 13, s. 1. It is by the same statute expressly provided 
 that tiie equity of redemption in any freehold mortgage of real estate shall be 
 saleable under an execution at law against the lands and tenements of the owner 
 of sueli equity of redemption in his lifetime, or in the hands of his executors or 
 administrators after his death, subject to such mortgage in the same manner as 
 any lands and tenements can now be sold under an execution at law : lb. Before 
 the passing of the statute tlie interest of a mortgagor in a freehold mortgaged 
 estate was not saleable under execution at law: i>oe d. Cimpbell v. Thompson, 
 MS. II. T. 6 Vic. R. & H. Dig. " Execution," 12. So it has been held that an equity 
 of redemption in a term of years cannot be sold on an execution at law against 
 goods: JJoc d. Webster v. FUzgerali, MS. E. T. 2 Vic. R. & H. Dig. " Execution," 
 11; or lands: Doe d. Court v. Tapper, 5 O.S. fi40; Chisholm v. Sheldon, 1 Grant, 
 M; s. c. 2 Grant, 178. But still the sale of such an interest was held to be 
 ctfeetual in equity as to the interest of the executrix of the deceased owner, who 
 pointed out the land and desired to have it sold: Walton v. Bernard, 2 Grant, 344 ; 
 inid it was afterwards held that the purchaser at sheriff's sale of the reversion 
 in land mortgaged for a term of years was entitled to redeem the mortgage for 
 his own benefit: Waters v. Shade, 2 Grant, 457 ; see further section 260 of this act. 
 
 («) Taken from the repealed Statute of Canada, 12 Vic. c. 73, 8. 2. 
 
 (/) See note b to section 257. 
 
 -1.}.; 
 
 ' ,1 
 
 " ?l 
 
864 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 258. 
 
 gagor 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 such sale, and to vest in such pur- 
 chaser, his heirs and assigns, the same rights as such Mort- 
 gagor would have had, if such 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 
 such 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 effected 
 by the Mortgagor, and on payment of the 3Iortgagc money to 
 the Mortgagee by the purchaser, his heirs or assigns, the 
 Mortgagee, his heirs, or assigns shall, if required, give to such 
 purchaser, his heirs or assigns, at his or their nharge, a certifi- 
 cate of payment or satisfaction of such mortgage, (Ji) which 
 certificate may be in the following form, that is to say : 
 
 To the Registrar of the County of : 
 
 I, A. B. of , do certify that C D. of , who 
 
 hath become the purchaser of the interest of E. F. of , 
 
 hath satisfied all money due upon a certain 3Iortgage made 
 
 by the said E. F. to me, bearing date the day of 
 
 , one thousand eight hundred and , and rej;is- 
 
 (^) The purchaser acquires only the title of the mortgagor at the time tlie writ 
 
 is delivered to the sheriff, not at the time of the recovery of judgment: see /'tyy 
 
 . V. Metcalfe, 3 U. C. L. J. 148. The interest of the mortgagor in a portion only of 
 
 the mortgaged premises cannot be sold under execution: lleward v. Wolfenden, 
 
 14 Grant, 188 ; Van Norman y. McCarty, C. P. M. T. 1869, 
 
 (A) "When any person entitled to any freehold or leasehold land by way of 
 mortgage has departed this life, and his executor or administrator is entitled to 
 the money secured by the mortgage, or has assented to a bequest tliereof, or has 
 assigned the mortgage debt, such executor or administrator, if the uiortKnge 
 money was paid to the testator or intestate in his lifetime, or on jjaynient of the 
 principal money and interest due on the said mortgage, may convey, release ami dis- 
 charge the mortgage debt and the legal estate in the land : Con. Stat. U. C. c. 87, 
 8. 5. The executor or administrator -has the same power as to any portion of tlia 
 lands on payment of some part of the mortgage debt or on any arrangement 
 for exonerating the whole or any part of the mortgaged lands, without payment 
 of money: lb. But it has been held that neither the executor nor admiiiis'rator 
 has any power to sell or convey the legal estate held by his test.itor or intestate to 
 a person purchasing the mortgage : Robinson v. Byers, 9 Grant, 572 ; Hunter v. 
 Farr et al, 23 U. 0. Q. B. 324; see Stat. Ont. 32 Vic. cap. 10, and 33 Vic. cap. IS. 
 
SEIZURE OF mortgagor's INTEREST. 
 
 - of the clock in the forenoon (as the case may 
 
 — day of , in the same year, (or as 
 
 s. 259.] 
 
 tered at — 
 le) of the ■ 
 the case may be}, and that such mortgage is therefore dis" 
 
 charged. As witness my hand this doy of , 
 
 one thousand eight hundred and . 
 
 365 
 
 E. H. of 
 G. H. of 
 
 (Signed) 
 
 A. 13. 
 
 ' Witnesses. 
 
 And such certificate shall be of the like effect, and shall be 
 acted upon by registrars and others to the same extent as if 
 the same had been given to the Mortgagor, his heirs, execu- 
 tors, administrators or assigns. 12 Vic. c. 73, s. 2. 
 
 339- (./) Any Mortgagee of lands and tenements so sold. Mortgagee 
 or the heirs or assigns of such Mortgagee, (being or not being ininiiftser 
 Plaintiff or Defendant in the judgment whereon the writ of sai'us.^ 
 Fieri Facias under which such sale takes place has issued) 
 maybe the purchaser at such sale, and shall acquire the same 
 estate, interest and rights thereby as any other purchaser; (k) 
 but in tl e event of the Mortgagee becoming such purchaser, 
 he shall give to the Mortgagor a release of the mortgage 
 debt, (l) and if any other person becomes such purchaser, 
 and if the Mortgagee enforces payment of the mortgage debt 
 against the Mortgagor, then such purchaser shall repay the 
 amount of such debt and interest to the Mortgagor, (m) and 
 
 {j) Taken from repealed statute of Canada, 12 Vic. cap. 73, s. 3. 
 
 (k) Any mortgagee of freehold or leasehold property, or any assignee of such 
 mortgagee, may take and receive from the mortgagor or his assignee a release of 
 tlie equity of redemption in such property, or may purchase the same under any 
 power of sale in his mortgage or any decree, •without thereby merging tlie mort- 
 gage debt as against any subsequent mortgagee having a charge on the same pro- 
 perty : Con. Stat. U. C. cap. 87, s. 1. In case any such prior mortgagee or his 
 assignee takes a release of the equity of redemption of the mortgagor or his 
 assignee in such mortgaged property, or purcliases the same under any power of 
 s.ile in liis mortgage or under any decree, no subsequent mortgagee or his assignee 
 shall be entitled to foreclose or sell such property without redeeming or selling 
 subject to the rights of sucli prior mortgagee or his assignee, in tlie same manner 
 as If such prior mortgagee or his assignee had not acquired such equity of redemp- 
 tion : lb. s. 2. 
 
 (0 Qitccre as to the effect of intermediate mortgages or charges on the land : 
 see Feff^qe v. Metcalfe, 3 U. C. L. J. 148. 
 
 (w) Irrespective of the form of the contract between the parties, the rule is 
 clear, indcpendcLMy of this statute, that the purchaser of an equity of rcdemptioa 
 
 I 
 
 t ; W.J 
 
 1. 1 g.j( 
 
866 
 
 TOE COMMON LAW PROCEDURE ACT. 
 
 [s. 260. 
 
 mi', ' 
 
 r* 
 
 The Interest 
 of a mort- 
 gagor in 
 gouiU mort- 
 gaged may 
 bu HoM ill 
 execution. 
 
 in default of payroent thereof within one month after demand 
 the Mortgagor may recover fntm such purchaser the amount 
 of such debt and interest, in an action for money had and 
 received, (») and until such debt and interest have been 
 repaid to the Mortgagor, he shall have a charge therefor upon 
 the mortgage lands, (o) 12 Vic. c. 73, s. 3. 
 
 360. (p) On any writ, precept or warrant of execution 
 against goods and chattels, (q) the sheriff or other officer to 
 whom the same is directed, may seize and sell the interest or 
 equity of redemption in any goods or chattels of the party 
 against whom the writ has issued, (r) and such sale shall 
 convey whatever interest the Mortgagor had in such goods 
 and chattels at the time of the seizure, (.s) 20 Vic. c. 3, 
 s. 11 ; and see 12 Vic. c. 73, s. 1. 
 
 is bound as between himself and his assignees to pay off incumbrances: Thompson 
 V. Wilkes, 5 Gi-ant. 594. The purtiliaser of an equity of redemption subject to a 
 charge wliieh is his own proper debt, or which he is under any contract express 
 br in'v>lied to discharge, cannot keep such incumbrance alive against a mesne 
 incuui^ranco which by the terms of the contract of purchase express or implied 
 the purchaser was bound to discharge : Blake v. Beatif, 6 Grant. 359. 
 
 (n) Money had and received is the most comprehensive of all the common 
 counts. It is applicablo tyherever the defendant has received money which in 
 justice and equity belongi d to the plaintiff under circumstances which render the 
 receipt by the defend.int i. receipt to the use of the plaintiff. The purchaser here 
 at the time of purchase is it were takes credit for the amount of the mortgage 
 money, as if he had reieived the amount thereof to the use of the mortgagor, 
 and therefore is either b )imd to apply it in liquidation of the mortgage, or pay 
 the same to the mortgagor as money received to his use. 
 
 (o) Not only is the right to sue for the money given to the mortgagor as 
 against the jjurchaser, but, in order that the mortgagor shall be as nearly as pos- 
 sible perfectly secure, it is declared that until such debt and interest have been 
 repaid to the mortgagor the latter shall have a charge therefor upon the mort- 
 gaged lands. 
 
 (p) Taken from repealed Statute 20 Vic. cap. 3, s. 11, as consolidated witli 
 repealed Statute 12 Vic. cap. 73, s. 1. 
 
 (q) See note d to section 257. 
 
 (f ) The sheriff has no power to take or remove the corpus of the jj,'0ods or chat- 
 tels. All that he is empowered to control or sell is " the interest or equity of 
 redemption." 
 
 (») "At the time of the seizure." Considering that an execution from the 
 superior courts or a county court binds goods and chattels from the time of the 
 delivery of the writ to the sheriff, it is difficult to see why the legislature post- 
 poned the operation of the writ under this section till seizure. But so it is ; and 
 it is apparently in the power of the execution debtor, between the delivery of the 
 writ to the sheriff and se'zure, to assign his interest, and if done bona fide defeat 
 the execution : see Pegge v. Metcalfe, 3 U. C. L. J. 148. 
 
8.261.] 
 
 SKIZURi: OF MONEYS AND SECURITIES. 
 
 307 
 
 MONEY AND SECURITIES. 
 
 361 (0 The Sheriff or other officer, having the execu- 
 tion of ony Writ of Fieri Facias against goods sued out of 
 either of the Superior Courts of Common Law, or out of any sii.rifTiniiy 
 County Court, or of any precept made m pursuance thereof) and hc. uri- 
 shall seize any money or bank-notes (including any surplus muiny. 
 of a former execution against the debtor), and any cheques, 
 bills of exchange, promissory notes, bonds, mortgages, special- 
 ties or other securities for money, belonging to the person 
 acainst whose effects the Writ of I'icri Facias has issued, 
 and sliall pay or deliver to the party who sued out the execu- 
 tion, any money or bank-notes so seized, or a sufficient part 
 thereof, (u) and shall hold any such cheques, bills ofMoi'py 
 
 . ,, .!•! sfizpcl to he 
 
 exchange, promissory notes, bonds, specialties or other secu- I'aii <>ver to 
 rities for money, as a security or securities for the amount by out tii« txt- 
 the writ and endorsement thereon directed to be levied, or so 
 much thereof as has not been otherwise levied or raised, and 
 such Sheriff or other officer may sue iu his own name for the 
 
 {!) Taken from repealed Statute 20 Vic, cap. 
 jjiarently is Eng. Stat. I it 2 Vic. cup. 110, s. 12 
 
 57, s. 22, the origin of which 
 
 («) The sheriff at common law can only seize under a fi. fa. such things as 
 he can sell : Leffge v. Euans et al, 6 M. & \V, 36, per Parke, 13. ; witJi the excep- 
 tion of wearing apparel actually in use, and perhaps goods in his actual imme- 
 diate posHMSsion : Sunbolf v. Alford, 3 M. <fe W. 254, per Parke, li. ; but deeds, 
 dieqiR'S, bills, notes, bonds, mortgages, specialties, or other securities for 
 inonev, could not at common law be seized or sold under execution because the 
 law did not consider them the subject of sale: Wood v. Wood, 4 Q. H. 401 ; and 
 the object of this enactment is to subject the securities mentioned to execution 
 as of floods and chattels : lb. "When money is seized it becomes as it were money 
 the proceeds of goods and chattels seized and sokl : Collingridge v. Paxlon, 2 L. 
 M. & P. 654. But it does not become ear-marked, nor does the property in it 
 become vested in the execution creditor : 2b. 058, per Jervis, C. J. Power is by the 
 eection expressly given to the sheriff to seize money the proceeds of a former exe- 
 cution ftgainst the debtor: see Harrison v. J'aynter, 6 M. «fe W. 387; Masters v. 
 Stanley, "8 Dowl. P. C. 169; lirun v. Ilutchinson, 2 D. & L. 43; Wood v. Wood, 
 4 Q. B. 397 ; King v. Knott, 3 Ir. Jur. O.S. 69. But it has been held that the 
 sheriff cannot seize money in the hands of a third party for the use of the defend- 
 ant: Robinson v. Peace, 7 Dowl. P. C. 93; Brown v. Ptrrott, 4 Beav. 585. So it 
 has been held that money deposited in an action in lieu of bail cannot be paid out 
 to an execution creditor in another action : France v. Campbell, 9 Dowl. P. C. 914. 
 As to cheques, Ac. see Squire et al v. Huetson et al, 1 Q. B. 308 ; Walts v. Ji-ffergei, 
 3 Mac. & Gor. 422; Ex parte Chaplin, 3 Y. & C. 397. Semble, that books of 
 account and open accounts cannot be seized by the sheriff — at least they cannot 
 be sold or transferred ; but if seizable at all must be held by the sheriff in security 
 for tlie judgment debt, utul collected as such in his own name: McNavghton v. 
 ^Ulster, 6 U. C. L. J. 17. A sale of books of account by the sheriff does not pass 
 tlie property in the debts or accounts therein charged: lb. 
 
 
 ^'^i 
 
 1 
 
 m 
 
 ill 
 
 \MM 
 
368 
 
 THE COMMON LAW PROCEDURK ACT. [s. 2G2-2C4. 
 
 m 
 
 Pnynient 
 tlnTcou to 
 the Sheriff 
 to be valid. 
 
 ShcriiT to 
 j)ny over 
 moneys so 
 paid to him. 
 
 Surplus to 
 be i>iiid to 
 the ii.irty 
 against 
 whom tlio 
 execution 
 issues. 
 
 recovery of the sums secured thereby, ^hen the time of pay* 
 nient thereof has arrived, (v) 20 Vio. o. 57, s. 22. 
 
 303- (a) The payment to such Sheriff or other officer by 
 the party liable on any such cheque, bill of exchange, pro. 
 missory note, bond, specialty or other security, ^ith or with- 
 out suit, or the recovery and levying execution against the 
 party so liable, shall discharge him to the extent of such pay- 
 ment or of such recovery and levy in execution (as the case 
 may te), from his liability on any such cheque, bill of ex- 
 change, promissory note, bond, specialty or other security. (6) 
 20 Vic. c. 57, s. 22. 
 
 SOS. (f) The Sheriff or other officer shall pay over to the 
 party who sued out the writ, the money so recovered, or a suf- 
 ficient sura to discharge the amount by the writ directed to be 
 levied, (d) 
 
 364. (e) If, after satisfaction of the amount, together 
 with Sheriff's poundage and expenses, (/) any surplus 
 remains in the hands of the Sheriff or other officer, the same 
 shall be paid to the party against whom the writ issued, (j/) 
 
 (r) The same in regard to the tflfects of an absconding debtor: see Con. Stat, 
 U. C. cap. 25, s. 25. 
 
 (a) Taken from 20 Vic. cap. 57, s. 22, the origin of which apparently is Eng, 
 Stat. 1 tk 2 Vic. cap. 110, s. 12. 
 
 {I) Tlie law will never coniprl a person to pay a sum of money a second time 
 which he has paid once under the sanction of tlio court : per Channel, 13., iu Wwl 
 el alv. Dunn, L. R. 2 Q. B. 80. 
 
 (c) Taken from Eng. Stat. 1 A 2 Vic. cap, 110, s. 12. 
 
 (d) This is simply acting in obedience to the command of the writ. The party 
 entitled to tlie money makes a written demand on the sheriff for a return of the 
 writ, in which case it is tlie duty of the sheriff witliin eight days, inclusive of the 
 service of the demand, to return the writ : 27 «fe 28 Vic. cap. 28, s. 34. If the sheritf 
 wilfully neglect or refuse to do so, he is liable to be ruled to return the writ, and 
 to be furtljer proceeded against by attachment as in other cases of contumacy to 
 orders or rules of court : lb. The sheriff in such case to pay the costs of any rule 
 or order taken out to compel the return and all otiier costs consequent thereon, 
 and also the costs of the requisition to make the return : lb. s. S6. 
 
 (e) Taken from Eng. Stat. 1 & 2 Vic. cap. 110, s, 12. 
 
 (/) In case a part only be levied on any execution against goods and chattels, 
 the sheriff is entitled to poundage only on the amount so levied, whatever may 
 be the sum indorsed on the writ: Section 271. 
 
 (ff) After satisfaction of the execution, tlie surplus of course is held to tlie use 
 of the debtor. ISo doubt ho could maintain money had and received for it against 
 
8. 265, 266.] 
 
 PRIORITY OF EXECUTIONS. 
 
 869 
 
 30«l- (^0 ^^ Sheriff or other officer shall be bound to sue siicrifr nut 
 any party liable upon any such cheque, bill of exchange, suountu 
 promissory note, bond, specialty or other security, unless the **'''"'^* " 
 party ^ho sued out the execution enters into a bond vihh two 
 sufficient sureties to indemnify such 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; (0 and the expense of such bond may be deducted 
 out of any money recovered in such action. (J) 20 Vic. o. 
 57,8. 22. 
 
 PRTORITV OP EXECUTIOXS. 
 
 206- (^) Where a writ against the goods of a party has cnae^ofexe- 
 issued from any of such Courts, and a warrant of execution county """ 
 against the goods of the same party has issued from a Division Diwsion"*^ 
 Court, the right to the goods seized shall be determined by sa',"e*thno'"' 
 the priority of the time of the delivery to be executed of the "ftiJ|"*I[/i!ioj 
 writ to the Sheriff, or of the warrant to the Bailiff of the Divi- i""vidua 
 
 ' lor, 
 
 sion Court ; (?) and the Sheriff, on demand, shall, by writing 
 
 thi sheriff after demand: see King v. Macdonald, 15 U. C. C. P. 397. The pro- 
 ceeds of an execution may bo attached in the sheriff's hands for a debt due by the 
 execution creditor : Murray v. Simpson, 8 Ir. C. L. R. Ap. xlv. 
 
 (h) Taken from Eng. Stat. 1 «fe 2 Vic. cap. 110, s. 12. 
 
 (i) This is only a reasonable protection to the sheriff See a similar provisioa 
 in the case of absconding debtors: Con. Stat. U. C. cap. 25, s. 25. The con- 
 dition of the bond should be as nearly as possible in the very words of the 
 
 statute, 
 
 [j) And so, it is apprehended, be ultimately paid by the execution debtor. 
 
 (k) Taken from Stat. 20 Vic. cap. 57, s. 24. 
 
 (I) Apparently a warrant of execution from a division court, unlike an execu- 
 tion from a court of record, does not bind the goods from the time of its receipt 
 by the olficer, but from the time of levy: Cullodm v. McDotoell, 17 U. C. Q. 13. 
 357. This being so, an execution from a court of record, though subsequent iu 
 point of time, if there were no levy under it, would prevail against it. The object 
 of tlie section here annotated is to prevent such an injustice being committed by 
 providing that in the case of rival executions, some from courts of record and 
 some from division courts, priority shall be determined "by the time of tlie 
 priority of the delivery to be executed of the writ to the sheriff or warrant to the 
 division court bailiff." Now that a seizure of goods under a division court exe- 
 cation (commonly called a warrant) is entitled under the operation of this sec- 
 tion to priority over a seizure subsequently made by the sheriff, trespass will 
 not lie against the latter for the seizure made by him, the goods being already 
 under tlie division court execution in the custody of the law : King v. macdonald, 
 13 U. C. C. P. 397. Held, also, that in the absence of a count for money had and 
 
 24 
 
 1: 
 H 
 
 iwm 
 
 H 
 
 li- ii' 
 
 H 
 
 1 1 1 k 
 
 H 
 
 1 11^4; 1 
 
870 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 2C7. 
 
 H < 
 
 
 '■m i 
 
 t-y.. 1*^ if?'' 
 
 signed by him or his deputy or a olerk in his office, inform 
 tho Bailiff of the precise time of such delivery of the writ, 
 and tho Bailiff, on demand, shall uhew his warrant to any 
 Sheriff's officer; (m) and such writing purporting to be bo 
 signed, and tho endorsement on the warrant shewing the 
 precise time of the delivery of the same to such Bailiff, shall 
 respectively be sufficient justification to any Bailiff or Sheriff 
 acting thereon, (n) 20 Vic. c- 07, s. 24. 
 
 NOTICE OF SALE OP LANDS. 
 
 307- (o) Before tho sale of real estate upon execution 
 a'lxecu-"'^ against lands and tenements, the Sheriff shall publish {p) un 
 advertisement of sale in tho Canada Gazette, at least six time?, 
 specifying : 
 
 First^^The particular property to be sold ; 
 
 Second — The names of the Plaintiff and Defendant j 
 
 Third — The time and place of the intended sale; 
 
 received, plaintiff could not recover tlio surplus money which tho sheriff coiilJ 
 have seized, in the hands of tlic division court bailiff, under section 226 uf this 
 act, after satisfaction of the prior execution : lb. 
 
 (m) So that each officer shall know the precise portion of tho other in regard 
 to tL : executions in their several hands, 
 
 (n) I. e. As against execution creditors claiming priority as between the rival 
 executions. 
 
 Notice of 
 
 ill ixt'cu 
 tiou. 
 
 (o) Taken from the old King's Bench Act, 2 Geo. IV. cap. 1, s. 
 
 20. 
 
 (/>) The omission to do as here directed is only an irregularity, with which a 
 
 Purchaser at sheriff's sale is not to bo affected : Patcrson v. Todd, 24 U.C. Q.B. 290. 
 lie purchasers title to land sold by the sheriff' is prima fade good when the 
 sale is made upon a legal writ and the debtor is in possession at the time of sale : 
 Doe d. Boulton v. Ferqusson, 5 U. G. Q. B. 516. A defendant seeking to defeat the 
 title on the ground oi a defect in tlie proceedings anterior to the writ, must show 
 clearly and conclusively that there was such a defect : lb. The title is not liable 
 to be defeated by irregularity in the proceedings anterior to tho judgment : lb. 
 Unless the circumstances are such that the purchasers taking the deed can be 
 said to amount to fraud: McDonald v. Camei-on, 13 Grant, 84. So long as the 
 judgment subsists in full force, it supports the execution, and the execution supports 
 the gale. See further R. «k H, Dig. " Sheriff's deed," passim — " Sheriff's sale"— 
 under which heading 19 cases have been collected: lb. " Title," cases 1, 2, 3, 11, 12, 
 13, 14, 15 and Ifi ; also to McDonell v. McDonell, 9 TT. C. Q. B. 259 ; Doe d. Burnham 
 V. Simmondu, lb. 436 ; Doe d. Meyei-s v. Meyers, lb. 465 ; Doe d. Elmsley et ux. v. 
 McKenzie, lb. 659 ; In re Campbell and Huttan, 10 U. C. Q. B. 641 ; Burnham v. Daly, 
 1 1 U. C. Q. B. 21 1 ; Shenstm v. Baker, 1 2 U. C. Q. B. 1 75 ; Reaume et al v. Guicliard, 
 \Z U. C. Q. B. 276 ; Stroud v. Kane, lb. 459 ; Doe d. Mills v. Kelly, 2 U. C. C. P. 1 ; 
 Doufflau V. Bradford, 3 U. C. C. P. 459. 
 
20P.] 
 
 ADVEIITISKMKNT OF SALE UNDER KXECUT/ON. 
 
 871 
 
 1111(1 ho hIiuII, fur three uiouths next preceding; tlu' sulo, also 
 nubiiish such udvcrtiscniont in a public newspaper of the 
 County in which the lands lie, or shall fur three months put 
 up uiid oontinuo a notice of such sale in the oflice of the. 
 ('lerk of the Poaeo, or on the door of the Court House or 
 tilaco ill which the Court of General Quarter Sessions for such 
 (Viuiity is usually holden ; ((j) but nothing herein contained 
 shall be taken to prevent an adjournment of the sale to a 
 future day. (r) 2 Geo. IV. c. 1, s. 20. 
 
 208. (s) The advertisement in thoOfiBcial Gazette of any N„tic.!iii 
 
 lands for sale under a Writ of Execution, during the currency .'oiMtitn't.f 
 of the Writ, (/) (giving some reasonably definite description of "xeiiution. 
 
 (q) The advertisoment must be two-fold : 
 
 1, III tlio Canada Gazette " at least six times." 
 
 2. In a public newspaper of the county in which the lands lie, " for three 
 months next preceding the sale ; or shall for three montlis put up and continue 
 ft notice of sucii sale in the office of the clerk of the peace, or on the door ot tiie 
 court house or place in which the court of general quarter sessions for such 
 county is usually holden." 
 
 Wliero an advertisement to the correctness of which no objection was pointed 
 out was inserted in a local newspaper for three months before the day appointed 
 for Bftle (27th August, 1864), and a notice incorrect in some particulars inserted 
 in the Cunada Gazette on 11th June, 1864, and in the four next ensuing weelvly 
 numbers of tiie Gazette ; but in the sixth insertion the errors were corrected, all 
 six announcing the sale for 27th August, 1864, and then on 1st October following 
 another advertisement was inserted in the Gazette for the sale of the lands on 
 12th November, 1864 (not purporting to be a postponed sale) and tliis was pub- 
 lished on tlie five succeeding weelily numbers, but there was no advertisement 
 for 12th November, 1864, in the local newspaper, the statute was held not to 
 iiave been sufficiently complied with: Paterson v. Todd, 24 U. C. Q. B. 299. The 
 statute recjuires the sherifi" to specify in the advertisement " the particular pro- 
 perty to bo sold." It is no compliance with this enactment to name, not the 
 property to bo sold, but a whole block, lot, or half lot, wlien the defendant is 
 only entitled to an easily distinguished portion of such block, lot, or half lot : 
 McDonald v. Cameron, 1 3 Grant, 92, per Mowat, V. C. 
 
 (r) Qiicere. Is it necessary that there should be nny advertisement of "an 
 adjourned sale:" see Paterson v. 2'odd, 24 U. C. Q, B. 296. 
 
 (s) This section is in its terms restricted to executions against lands. 
 
 (t) Nothing can be done under an execution after it has ceased to be current, 
 unless for tlie purpose of perfecting what has been commenced while it was in 
 force: Doe d. Greenshielda v. Garrow, 6 U. C. Q. B. 237. Tiiere must bo some act 
 done amounting in law and fact to an incipient step in the execution of the writ: 
 Doe d. Miller v. Tiffany, lb, 90, per Macaulay, J. The mere receipt of the writ 
 by the sheriff while in ofiice will not be a sufficient inception of execution : lb. 
 There must be something to connect the process with the land. lb. It was miide 
 a question before this act whether an advertisement in the ofh ;ial Gazftte was a 
 sutBeient step: lb. It is now enacted that such an advertisem >nt giving some 
 reasonable description of the land shall be sufficient. 
 

 372 
 
 TUE COMMON LAW PROCEDURE ACT. 
 
 [8. 268. 
 
 .M 
 
 *S 
 
 the land in such advertisement,) (w) shall be deemed & suffi- 
 cient conimencement of the execution to enable the same to 
 bo completed by a sale and conveyance of the lands after 
 the Writ has become returnable, (v) 19 Vic. c. 43, s. 188. 
 
 {(/) Sec preceding section and notes thereto, 
 
 (i>) Wliere there hns been an inception of execution before the expiration of the 
 writ, the slieriff may do all things necessary to its completion, notwithstanding 
 its expiration. But if the sheriff go out of office during the currency of the writ 
 and before sale, his successor must execute the conveyance : Section 209. If tlie 
 sale hike place before he go out of office, he and not his successor is the proper 
 person to execute tlie conveyance: lb. In case of the death, resignation, or 
 removal of any sheriff, or of any deputy sheriff while there is no sheriff, after lie 
 has made a sale of lands, but before he has made the deed of conveyance of the 
 same to the purchaser, and whether such sale was under ai execution or for 
 arrears of taxes, tlic deed or conveyance shall be made to th i purchaser by the 
 sheriff, or by the deputy sheriff, who may be in office Rotmg as sheriff as afore- 
 said, at the time when the deed or conveyance is made: 27 & 28 Vic. cap. 28, s. 
 43. Upon the separation of any junior county from any senior county, or upon 
 the dissolution of any union of counties, the powers, functions and jurisdiction of 
 the slieriff of the senior county over and within the junior county shall remain 
 unimpaired in respect of any writ of mesne or final process in any civil suit or 
 cause in his hands for service or execution at the time of such separation 
 or dissolution, and in respect of any renewal of any such writ, and of any 
 subsequent or supplementary writ of the sanae nature in the same suit or cause: 
 Jb. s. 44. In case a sheriff dies, resigns his office and his resignation is 
 accepted, or is removed therefrom, the deputy sheriff by him appointed siiall 
 nevertheless continue the office of sheriff, and execute the same and all tbingg 
 belonging thoreto in the name of the sheriff so dying, resigning or being removed, 
 until anotiiei' sheriff has been appointed and sworn into ofiice ; and the said deputy 
 sheriff sliall be answerable for the execution of the said office in all respects and 
 to all intents and purposes whatsoever, during such interval as the sheriff so 
 dying, resigning or liaving been removed, would by law have been, if he had 
 been living or continuing in office, and the security given to the sheriff so deceased, 
 resigning or being removed, by his said deputy sheriff, and his pledges, as well 
 as the security given by the said sheriff under this act, shall remain and 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 during such interval by 
 the said deputy slieriff: lb. s. 47. Upon the removal of any sheriflf from his office, 
 or upon his resignation of the same, and upon the appointment of his suc- 
 cessors, the out going sheriff shall, and in the event of the death of any siieritf 
 the deputy sheriff snail forthwith make out and deliver to the new or incom- 
 ing slieriff a true nnd correct list and account, under his hand, of all prisoners 
 in his custody, a> •! of all writs and process in his hands not wholly executed 
 by him, with all such particulars as sliall be necessary to explain to the said 
 incoming sheriff tho several matters intended to be transferred to him, and sliall 
 thereupon hand over and transfer to the care and custody of the said incoming 
 sheriff, all such prisoners, writs and process, and all records, books, and matters 
 appertaining to the said office of sheriff; and tlio aaid incoming k;heriff shall there- 
 upon sign and deliver a duplicate of such list and account to the sheriff going out 
 of office, or to the deputy sheriff where the previous sheriff has deceased, to whom 
 the same shall be a good and sufficient discharge of and from all the prisoners 
 therein mentioned, and transferred to the incoming sheriff, and from the further 
 charge of the execution of the writs, process and other matter therein contained. 
 
2G9.] 
 
 EXECUTIONS WHEN SHERIFF LEAVES OFFICE. 
 
 373 
 
 269. (a) If the Sheriff ^oes out of office (b) during the }<' ^''^'if 
 
 '•*' ^ -' '^ ^ J o leaves (illloo, 
 
 currency of any Writ of Execution against lands, and before iii-«iiw<'s- 
 
 •' •' , " ' sor to I'xe- 
 
 tho sale, (f) such Writ shall be executed and the sale anu '"H' ^Viits 
 conveyance of the lands be made by his successor in office, \mhU. 
 and not by the old Sheriff; (</) but any Sheriff may, after he 
 has gone out of office, execute any Deed or Conveyance neces- 
 sary to effectuate and complete a sale of lands made by him 
 while in office, (f;) 19 Vic. c. 43, s. 187. 
 
 without nny writ of discharge or other writ whatsoever, and the sniil iiinoming 
 shcritf shall thereupon stand and be charged with the said prisoners, and also 
 with the execution and care of the said writs, process, and other matters contained 
 in the said list and account, as fully and effectually as if the same writs and pro- 
 cess had been handed over by indenture and schedule ; and in case any such out- 
 going sheriff, or in the case of the death of the former sheriff, any such deputy 
 elieiitf shall refuse or neglect to make out, sign and deliver iuch list and account 
 as aforesaid, and to hand over the process aforesaid in mrnner aforesaid, every . 
 sucli sheriff or deputy sheriff so neglecting and refusing shall be liable to make 
 such satisfaction by damages and costs to the party aggrieved, as he, she, or they 
 shall sustain by such neglect or refusal: lb. s. 49. 
 
 (n) This and the following section appear to have been enacted in order to 
 remove doubts upon points concerning which when first enacted there was no 
 very decided opinion in the courts : see Doe d. Campbell v. Hamilton, 6 O. S. 88 ; 
 Doe d. Young v. Smith, 1 U. C. Q. B. 195 ; Doe d. Miller v. Tiffamj, 5 U. C. Q. B. 79. 
 
 (6) Qu. Is a sheriff to be deemed in ofBee until the appointment of his suc- 
 cessor or until he has been in a formal and legal manner discharged from the 
 office ? see Ross et al v. McMartin, 7 U. C. Q. B. 179. A writ of ^. fa. was delivered 
 to the sheriff on 2l8t November, 1847, returnable in Hillary Term, 1848. On 
 flth December, 1847, the sheriff tendered to tlie government his resignation of 
 office. On 14th of same month it was notified to him that his resignation had 
 been accepted, but his successor was not appointed till after the return of the 
 writ, which had been made in the interval. The deputy sheriff, who remained in 
 the ofKce to wind up the old business, made his return to the writ. In an action 
 nsainst the ex-sheriff for a false return It was held under the particular clrcum- 
 stiinocs of the case, that tha ex-sherlff must be considered as in office at the 
 return of the writ and liable upon the return made : lb.; see also Kent v. Mercer, 
 12 U. C. C. P. 30. 
 
 (c) It is well to notice that this section is restricted to executions against 
 liiiiils: see Miller v. Stilt, 17 U. C. C. P. 559. It Is said that where a sheriff has 
 made a seizure under a Ji. fa. against goods, he may complete the execution 
 although he has In the meantime gone out of office : Clerk v. Withem, 6 Mod. 290. 
 
 ('/) It matters not whether there has or has not been an Inception of execution 
 so long as no sale has taken place, in which case the successor In office Is the 
 proper person to sell and convey the land seized. 
 
 ic) The latter part of this section is implied in tlie f )rmer, though to avoid 
 que.-tion It Is well that it should be substantively expressed. If a nale has taken 
 jilaco the conveyance shall be made by the sheriff who liffeeted the sale, whether 
 lie eoutiiuie to be sheriff or has resigned that otlico. This is supjiosiiig him to be 
 Btill living. If after sale and before conveyance he die, his deputy may continue 
 lu oIHlc and execute all things pertaining to it in the name of the deceased ; Con. 
 
 11 (. >; 
 
 
 
 rm 
 
 
 
 ' % ' 
 
 mt 
 
 ill 
 
 -ti t 
 
 Wit, 
 
 1 
 
 ^\i 
 
 tf 
 
 
 
 Alt, 
 
 hi 
 
 
 
374 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [S. 270. 
 
 Siierifl's 
 liuuinUigc. 
 
 POUNDAGE. 
 
 97©. (/) Upon any execution against the person, lands 
 or ;,foods, the Sheriff may, in addition to the sum recovered 
 bv the judgment, levy the poundage fees, expenses of the 
 execution, (ff) and Ii'terest upon the amount so recovored 
 
 i. 
 
 Stilt. U. 0. cnp. 38, s. 14. But tho power of the deputy ce.ases upon the appoint- 
 ment, of a new sheriff: Doe d. Campbell v. Hamilton, 6 0. S. 88 ; see further notu 
 V to seetiou 2G8. 
 
 (/) Taken from our old King's Bench Act, 2 Geo. IV. cap, 1, s. 19, as amended 
 by Stiitute of Canada 9 Vic. cap. 56, s. 3. 
 
 {//) Tlie right to poundage does not exist at common law: Yates v. Median, 
 11 Ir. C. L. R. App. i. The sheriff's s 'e claim to fees is based on positive ennct- 
 ment: Buchanan et al v. Frank, 15 U. 0. C. P. 100. The English statute 20 Eliz. 
 cap. 4, as to poundage, is not in force here: Morris v. Boulton, 2 Cliam. U. Ci). 
 The first statute we had on tlie subject was the 49 Geo. III. cap. 4, which enacted 
 " That from and after the passing of this act, in every action in which tlie plaiiitiif 
 or plaintiff's shall be entitled to levy under an execution against the goods of aiiv 
 defendant or defendants, such plaintiff or plaintiffs ma^ also levy the poundage fees 
 and expenses of the execution over and above the sum recovered by the judgment: 
 sec. 8. Next we had 2 Geo. IV. cap. l,wluch enacted "That it shall and maybe 
 lawfid in any execution against the person, lands or goods of any debtor or debtors 
 for the sheriff to levy the poundage fees and the expense of the said cxecut'on 
 over and above the sum recovered by the judgment, together witii legal interes-t, 
 <tc.:" sec. 19. Then 7 Wm. IV. cap. 3, reciting that where writs of execution 
 issued in several districts, upon which writs property real or personal may liuvc 
 been seized or advertised, which property has afterwards not been sold on aeeoiint 
 of satisfaction having been otherwise obtained or from some other cause, it has 
 been doubted whether a claim to poundage might not be advanced by the .sheriif 
 of each of such districts respectively, althougli no money was actually levied by 
 tlicm under the writ enacted " That where upon any writ of execution sued oat 
 against tlie estate, real or personal, of the defendant or defendants, no money 
 shall be actually levied, no poundage shall be allowed to the sheriff; but ho shall 
 b(! allowed his fees for the services which may be actually rendered by him ; and 
 it sliall be in the power of the court from whence such execution shall have issued, 
 or for any judge thereof in vacation, to allow a I'easonable charge to the sheritf 
 for any service rendered in respect to such execution for whicli no specific fee or 
 allowance nia\' be assigned in the table of costs:" sec. 32. The 9 Vic. cap. 5(), s. 2, 
 re-enacted the 7 Wm. IV. cap. 3, s. 32, witii the introduction of the woril "siii'ii" 
 after tlie woi'd "am/" above italicised, and further enacted "That the siierifl'i-l.all 
 not be entitled to poundage on any execution against goods and chattels (except in 
 cases where the full amount sliall be collected bj' him) on a greater sum than the 
 value of tlie ju'operty actually seized b\- him under anj' writ of execution wliat- 
 ever be tho sum uietitionod or endorsed upon sueli writ:" sec. '). Tho enni'ts 
 pas?;ed a rule in II. T. 10 Vic. fixing the amount of poundage wiiieli a slieriil' was 
 entitled to receive on the " amount levied and made," and afterwards tixeil the 
 ]u)uiidage on tho amount "made." Tliese are the statutes wliich the legislature 
 is sujiposed to I'.ave consolidated in this and the section whicii follows it. How 
 the same lias been accomplished may be seen in note k to the next section. 
 The first act (49 Geo. III. cap. 4) ga\e poundage only on executions against gooil- 
 nnd ('.lattelr^, but did not enable the sheriff to levy it, leaving the settlement of i; 
 betv.-een him and the execution creditor, Avho in his turn was enabled to recover 
 it from the execution debtor. The second act (2 (-co. IV. cap. 1) extended the 
 
 h m'l 
 
271.] 
 
 SHERIFF S POUNDAOE. 
 
 375 
 
 from the time of entering the judgment. (A) 2 Geo. IV. 
 c. 1, s. 19 ; 9 Vic. c. 56, s. 3. See 19 Vic. o. 90, s. 24, ajicZ 
 . fari^ of Fees, ISth Juli/, 1857. 
 
 371. (0 1- In case a part only be made by the Sheriff on, in what 
 or bv force of any execution acjainst goods and chattelj, the siunffa 
 
 , „ . • 1 1 1 . 1 ? . /. 1 n entitled to 
 
 SheriflF shall be entitled, besides his fees and expenses of execu- iiouiuiuire. 
 tion, to poundage only upon the amount so made by him what- 
 ever be the sum endorsed upon the Writ, {j) and in case the 
 personal estate, except chattels real of the defendant or defend- 
 ants be si d or advertised on, or under an execution, but not 
 ' ' V iison of satisfaction having been otherwise obtained, 
 or trom some other cause, and no money be actually made by 
 the Sheriff on, or by force of such execution, the Sheriff shall 
 be entiled to th<> fe^^s and expenses of execution and poundage 
 only on the value of the property seized not exceeding tho 
 amount indorsed on the Writ or such loss sum as a Judge 
 of the Court out of which the Writ issued may deem reasona- 
 
 rii:lit to pom. ;;.;^: to executions against lands and the person, and gave to the 
 flieritf tlie right, without reference to tlie plaintiff, tu levy his poundage in addition 
 to his other fees. The third act (7 Wm. IV. cap. 3) provided simply for tlie case 
 of concurrent v/rits, and in no manner altered the law in regard to an execution 
 in the liands of one sheriff only, but as its enacting part was supposed to go 
 be3'ond its preamble in regard to the writs intended, all doubt was removed by 
 the fourth act: 9 Vic. cap. 56. It was at a very early period made a question 
 whether the sheriff was entitled to poundage on a fi. fa. where after advertise- 
 ment for sale the parties compromised, and the court declined to determine so 
 important a question on a summary application witiiout appeal: Gates et al v. 
 Crooks, 3 O.S. 286; and in a subsequent case, an action having been brought, 
 Mncaulay, J. intimated that tho sheriff having seized liad so far levied as to 
 entitle himself to poundage whether the parties compromised or not: L'eming et 
 al V. ILigerman, 5 O.S. 43; and this view of the law was afterwards sustained by 
 Burns, J, : Morris et al v. Boulton, 2 Cham. U. 66, 67, 70. The full court next so 
 riiloJ on an execution against tho person : Corbet v. McKenzie, 6 U. C. Q. B. 005 ; 
 and ill order that no distinction should exist in this respect between writs of en. 
 la. aiul fi. fa. the same rule was applied to the latter writs-: Thomas \. Cotton, 
 12 U. C. Q. B. 148; see also Brown v. Johnson, 5 U. C. L. J. 17. Where the 
 writ was set aside for irregularity so that no n.oney was made, tho slieritf was 
 lield not entitled to any poundage : Walker v. Fairjicld, 8 U. C. tl P. 95. 
 
 (^•)_ Tliis is a re-enactment of the latter part of section 19 of 2 Geo. IV. cap. 1 . 
 mentioned in previous note. 
 
 (0 This section is sec. 4 of Stat. Ont. 31 Vic. cap. 24, which repealed sec. 2T1 
 of this Act as it formerly read, and gave tho section above in substitution tliereoi'. 
 
 (j) A re-enactment of Vic. cap. 56. s. 3: see note (j to section 270. "A 
 neeiiless i.'nactmont, as this has always been the law:" Buchanan ti al v. Fran!,; 
 lo U. C. U. P. n<J,per Adam Wilson, J. 
 
 t 
 
 1 « 
 
 *;?}'■ 
 
 .'-» 
 
It I 
 
 876 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 271. 
 
 -»/•:. 
 
 1^: 
 
 ft: 
 
 M 
 
 5iV» 
 
 ^'>™ x- ble under the circumstances of the case : (k) Provided, also 
 
 Blierilfs eiiti- _ _ _ } \ / "> ""u, 
 
 t' .itomiie- in case of Writs of Execution upon the same Judgment tn 
 
 ase aud fcos , , ^ o •■ <.u 
 
 ouiy. several Counties wherein the personal estate of the Judgment . 
 
 debtor or debtors, has been seized or advertised, but not sold bv 
 reason of satisfaction having been obtained under or by virtue 
 of a Writ in some other County, and no money has been 
 actually made on such execution, the Sheriff shall not be enti- 
 tled to poundage, but to mileage and fees only for the services 
 actually rendered and performed by him, and the Court out 
 of which the Writ issued or any Judge thereof, may allow 
 him a reasonable charge for such services, in case no special 
 fee therefor be assigned on any table of costs. (I) 
 
 {k) It was held on the construction of the old section, for which this is a substi- 
 tution, tliat the sheriff was not entitled to poundage unless he actually levied and 
 made the money: Buchanan et al v. Frank, 15 U. C. C. P. 196 ; Grant v. The Co'- 
 poralion of the City oj Hamilton, 2 U. C. L. J. N. S. 262. In Buchanan v. Frank, 
 15 U. C. C. P. 199, Adam Wilson, J., speaking of the section as it formerly read, 
 said : " It is of no practical value to follow this further, and to saj' tliat the 
 ])resent reading of the law has probably arisen from an unintentional oversight 
 in the work of consolidating, for we must accej)! the law as it stands. If it were 
 not an intentional alteration, the legislature will no doubt, if it be thought expe- 
 dient, amend the law." The section as it now reads is amended as suggested it 
 should be by the learned judge. Poundage is now given though the money be 
 not actually made by the sheriff where personal estate is seized but not sold, by 
 reason of satisfaction having been otherwise obtained. A sheriff's officer weut 
 with a warrant to the defendant's premises for the purpose of levying under a 
 fi. fa., and, without saying or doing any thing more, produced the warrant and 
 demanded the debt and co.sts, together with poundage and expenses of levy. The 
 money was paid under protest. Held that this did not amount to such a levy as 
 to entitle the sheriff to poundage : Nash v. Dickenson, L. R. 2 C. P. 252. AVhtre 
 on a sale of goods producing in gross $846, the expenses amounted to §106, the 
 court expressed great surprise, believing that such a charge would not be found 
 justified by the tariff and the proper practice under it: Michie et al v. Rnjnolds 
 et al, 24 U. C. Q. B. 303. The sheriff is not entitled to any compensntioii for 
 seizing and remaining in possession of the goods of a stranger to the writ: Cok 
 V. Tem-y, 5 L. T. N. S. 347. The sheriff cannot maintain an action against the 
 execution debtor for his poundage : Thomas v. The Great Western Railway Co. 
 24 U. C. Q. B. 326. Under the statute 29 Eliz. cap. 4, the sheriff might maintain 
 debt against the plaintiff in an execution for his poundage. The statute 43 Geo. 
 III. cap. 46, gave the right to the plaintiff, who was entitled to levy under an 
 execution against the goods of any defendant, the right to levy the poundasre, 
 fees and expenses of the execution, over and above the sum recovered by the 
 judgment. This statute has :.ot taken away the sheriffs right of action for 
 ])oundnge against the plaintiff in the execution. Before the last mentioned statute 
 the sheriff used to levy the debt recovered by the judgment, and satisfy himself 
 out of it for the poundage, and pay over the residue. The statute gives a boon 
 to the i)laintiff in the action, who is entitled to levy under an execution against 
 tlie goods of the defendant the poundage, fees and expeu.ses of the execution, over 
 and above the sum recovered by the judgment : lb. 
 
 (/) This is in effect a re-enactment of our old Stnt. 7 Wm. IV. cap. 3, s. 32, 
 which was repealed and re-enacted by the Stat. 9 Vic. cap. 56, s. 1 : see note g to 
 
272 ] 
 
 CAPIAS AD SATISFACIENDUM. 
 
 377 
 
 2. In case any person liable on any execution shall be dis- if party dis- 
 
 , n t p t i< Hiitistiicl he 
 
 satisfied as to the amount or poundage lees and expenses or miiyaiiiiiyto 
 execution that any Sheriff may claim under the Tariff of F^es wiiomay ' 
 and allowances now in force, or under this Act, he may aiuouut. ' 
 before or after payment thereof, apply to the Court out of 
 irhich such Writ issued, or to any Judge thereof, and if, upon 
 a statement of the whole facts, the said Court or Judge, after 
 notice to the Sheriff, is of opinion that such amount is unrea- 
 sonable, notwithstanding it may be according to the Tariff, or 
 tils Act, the same shall be reduced or ordered to be refunded 
 upon such terms as to costs or otherwise, as the Court or 
 Judge may think fit to impose, (m) 
 
 WRITS OF CAPIAS AD SATISFACIENDUM. 
 
 S7d. (mni) Every Writ of Capias ad S(it>i[faciendum shall Teste ami 
 
 be tested and bear the date the day on which it issues, (») and of ci/?6'u.'"'* 
 
 BCC. 270. The costs of concurrent writs ouf^ht not to be disallowed unless issued 
 oppressively or for the mere purpose of making additional costs : see McKdlar v. 
 Grant, 3 U. C. L. J. 14. 
 
 (m) Upon the settlement of an execution, either in whole or in part, by pay- 
 ment, lev}' or otherwise, the sheriff or officer claiming any fees, poundage, inci- 
 dental expenses or remuneration, which shall not have been taxed, shall, upon 
 being required by either plaintiff or defendant, or the attorney of either party, 
 and on payment or tender of the expenses of such taxation, and the further sum 
 of twenty -live cents for the copy of his bill in detail, which he shall be bound to 
 render, have his fees, poundage, incidental expenses or rtmuneration, as the case 
 may be, taxed by the clerk or the deputy clerk of the crown of the county whei-ein 
 eucli =lieritf shall keep his office : 27 «iis 28 Vic. cap. 28, s. 39. No sheriff shall col- 
 lect ftuy fees, costs, poundage or incidental expenses, after having been required 
 to have tiie same taxed, witliout taxation, and upon tender of tlie amount taxed, 
 no fees, costs, poundage or incidental expenses in respect of proceedings subse- 
 quently taken, shall be allowed to any sheriff: lb. s. 40. It shall be the duty of 
 e\ory taxing officer referred to in the act, to tax the bills of costs presented to 
 liim for taxation, as therein required, upon payment or tender of liis fees, and to 
 give, wlien requested, a certificate of such taxation and the amount thereof: lb. 
 8. 41, It shall be the duty of every taxing officer authorized to tax costs, upon 
 proof of notice of the time and place of such taxation having been served upion 
 tiie sheriff, deputy sheriff, or other officer charged with the executie)n of tliy writ, 
 to examine the bills presented to him for taxation, as herein required, whether 
 iiuh taxation be opposed or not, and to be satisfied that the items charged in 
 piich bill are correct and legal, and to strike out all charges for services which, 
 in his opinion, were not necessary to be performed ; Provicfed always, that eitiier 
 party dissatisfied with the taxation may appeal to the court, or to a judge of the 
 couit, in which the proceedings may bo taken, for a revision of such taxation, us 
 in ordinary cases : lb. s. 42. 
 
 (mm) Apparentlj' original. 
 
 ('0 See notes to section 11, 
 
1 
 
 ( >, 
 
 
 I 
 
 378 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 273, 
 
 Iftonxkiil. 
 
 shall continue in force two months from the day of the date 
 thereof inclusive and no longer, (f>) and no such writ shall 
 be renewed, (p) but on the expiration thereof a new JuJi^e's 
 order may be obtained in the manner directed by the twelfth 
 section of the Act. respecting arrest and imprisonment for 
 debt. (2) 
 
 373. (»•) Writs of Execution to fix bail may be tested 
 and returnable in vacation, (s) 19 Vic. c. 43, s. 192. 
 
 (0) The day of the teste is inclusive: The Bajik'of Montreal v. Taylor, I.5 U C 
 C. P. 107. 
 
 {p) Writs of ca. sa. are especially excepted from the operation of section 249 
 as to the renewal of writs of execution. 
 
 (?) Scf s 12 of Con. Stat. U. C. cap. 24. 
 
 (r) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 90. 
 
 («) The writ of execution to fix bail is usually a ca. sa. It is little more than 
 a mere form, and is chiefly designed to intimate to tho bail by what spodes of 
 execution pliiiiitifF intends to proceed: Ilunty. Coxe, 3 Burr. 1300. Leaving it 
 in the sheriff's office is notice to the bail that tlio plaintiff will proceed against 
 the person of tlioir principal. The ca. sa. should lie four days in the sheriff's 
 office : Anon. 2 Salk. 599 ; Cock v. Brockkurst et al, 1 3 East. 588 ; Furnell v. Smith 
 et al, 1 B. & C. tl'.i:! ; Wilson v. Farr, 4 B. & Al. 537 ; Scott v. Larkin, 7 Bing. 109. If 
 any of the four days be a dies non it will not be reckoned: Howard v. Smith. 1 B. 
 & Al. 528 ; Goodicin v. Sugar, 2 Cliit. 192 ; Armitage v. Rigby.. et al, 5 A. & E. 76, 
 Witliiii tlie four days the bail may surrender their princiijal: Beattiew McKoy 
 et III, 2 Cliam. 11. 56. The writ of ca. sa. must bo sued out, and, it seems, returned 
 before proces9 can be had against the bail: Tliackray v. Harris, 1 B. & Al. 212. 
 Tt is incumbent on the bail to search in the sheriff's oflice as to whether any ca. 
 sa. wa.s left there or not : Hunt v. Coxe, 3 Burr. 1360. Though in strict practice the 
 writ should bo sued out, returned and filed before the commencement of iirocecil- 
 ings against bail, it seems that if the writ be filed before replication to a plea by 
 the bail of no ca. sa. it will be sufficient : lb. ; see also Rnwlinson et al v. Ovnsion, 6 f. 
 R. 284. The want of a ca. sa. is not a mere irregularity, but a matter of substance 
 of which the bail can only take advantage by plea: Philpot v. Manuel, ."i D. ifc 
 R. 615. It is useless to sue ouu the writ after render of the principal: Saundir.mi 
 et al V. Parker, 9 Dowl. P. C. 495. The wr* when sued out should be tested on 
 the day of issue : section 272. It was held that proceedings to outlawry couM 
 not be founded on a ca. sa. " returnable immediately after the execution thereof;" 
 :?ee Levy v. Hamer, 5 Ex. 518. It has been held if defendant consent that plnintitt 
 sh.all have judgment as of a term previous to the trial, the ca. sa. may be tested 
 as of the previous term: Uovenden v. Crawther, 1 Dowl. P. C. 170. Notwilh- 
 standin;^ the provisions of section 247, it is apprehended that the ca. sa. must be 
 directed to the sheriff" of the county in which the venue is laid : see Lnporlc's Ball, 
 4 Dowl. P. C. 639. Between the teste and return it was at one time held that a 
 peri )d of fifteen days was requisite: Ferric v. Mingay, M. T. 5 Vic. MS. R. <fc II. 
 Dig. "Bail," iii. 11. But since 12 Vic. c. 63, and under that statute, it has been 
 held that eight days were sufficient: Beattie v. McKay et al, 2 Cham. R. 63. If 
 the teste bo irregular the writ may be set aside on motion: Gawler v. Jollaj, 1 II. 
 Bl. 74 ; Lajwtes Bail, 4 Dowl. P. C. 639. 
 
 I- t 
 
271.] 
 
 DTSCIIARaE OP DEFENDANT FROM CUSTODY. 
 
 379 
 
 274. (0 -A- written order under the hand of the Attorney on wiiat 
 in the cause by whom any Writ of Capias ad Sat'isfaciemhim sh. riiis nmy 
 has been issued, shall justify the Sheriff, Gaoler or person iu iilhtms"'' 
 whose custody the party may be under such writ, in dis- tl,','iy.""^' 
 cliarfiiif such party, («) unless the party for whom such 
 Atturney professes to act has given written notice to the con- 
 trary to such SheriflF, Gaoler or person in whose custody the 
 opposite party may be, (y) but such discharge shall not be a 
 satisfaction of the debt unless made by the authority of the 
 cnditor, ("•) and nothing herein contained shall justify any 
 
 (/) Tnkon from Eng. Stat. 15 & 10 Vic. cnp. 70, s. 120, Founded upon the first 
 npoft of the Common Law Commissioners, section 79. 
 
 [u) The nutliority of an attorney in general determines witli the judgment; 
 Tipping v. Johnson, 3 B. & V. 857; Scarwi v. Small, 5 U. C. (i. B. 2.5!); but ho 
 mav issue execution find receive the money, in wiiieh case his receipt will be the 
 m\^ as tliat of his client; Savory v. Chapman, 1 1 A. (t E. SJiO, per Littledale, J.; 
 Bn.ckv. McLean, Tay. licp. 398; Sfockinq v. Cameron, M.T. Vic. MS. R. & H. 
 \)'ys. " Efjcajio," 26. The intent of the writ of ca. sa. is that the defendant shall 
 CDiiiuiue ill custody until the plaintitf is satisfied his debt : Crozery. Pilling et al, 
 1 1). it C. o'2. But after judgment an attorney has no right as against the plantiff 
 ii) settle tlio action on any other terms than payment of debt and costs ; see Butler 
 V. Knijht, L. 11. 2 Ex. 1 09 ; see also Hemming v. Hale et al, 7 C. B. N. S. 487 ; Ilamil- 
 tm et al v. llolcomb, 13 U. C. C. P. 9. The sheriff should not discharge a debtor 
 frmii custody on a ca. sa. without payment of debt and costs; Savory v. Chapman, 
 il A. itE. 829; ]Yoodsy. Finnia et al, 7 E.\. 303. Without receipt of the money 
 or nil express authority from the client, an attorney before this act had no power 
 ti) (listliarge from custody a defendant arrested under a ca. sa. The authority of 
 till.' attorney was only to receive tiie money in satisfaction of the debt ; Connop v. 
 Chcllis, 2 Kx. 484. lie had no autlioritj-, upon receijjt of part and security for 
 till' Ijalaiice, to discharge the debtor; lb. Though as to executions against goods 
 111' had under such circumstances fidl authorit}' to order the sheriff to withdraw 
 fi'uiii [Kjifsc'ssion ; Levi v. Abbott, 4 Ex. 588. Ilis authority as between hiiu and 
 ■die slieritf, both as regards executions against goods> and the person, are by this 
 ,id i)lac(.'d much upon the same footing. 
 
 (i) The sheriff is allowed to presume that an nttornc}' professing to act for his 
 client lias authority to do so. This is a presumption which may be (lis[)roved 
 i y wiitlen notice to the contrary from the client. By such, notice when given, 
 die slierilF must bo governed at his peril. 
 
 ('' ) The mere taking c' the person in execution does not operate as an extin- 
 piisliniont of the debt; Ward v. Bromhead et al, 21 L. J. Ex. 216 ; The National 
 As.iiirititcc and Investment Association v. Best, 2 H. tt N. 605; Thompson et al v. 
 ynrish, 5 C. B. N.S. 683 The discharge of the debtor before this act, whether 
 ri;:litl'i dy or Avrongfully, if by order of the attorne_y, was considered a satisfaction 
 if the debt: see IJamilion et al v. Ilo'ccmb, 12 U, C. C. P. 38; s. c. in appeal, 
 '.' U. C. L. ,J. 2;;"). The client thereby hiSt all claim as ogainst the debtor, and 
 Was compelled to fall back upon the sl.eritFor look to his attorney for damages. 
 X'lw it is enacted that the dis^charge shall not be a satisfaction (.f the debt " un- 
 fc-s made by authority of the creditor." This means that if the attorney without 
 authority discharge the debtor, the creditor may still hold the debtor responsible. 
 
I 
 
 
 380 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [S. 
 
 -lO. 
 
 Attorney in giving such order for discharge without the con- 
 sent of hia client, (x) 19 Vic. c 43, s. 191, 
 
 RULE.S TO RETURN WRITS, AND DUTY OF SHERIFFS AND COnONKM 
 
 THEREON. 
 
 Deputy 275, (o) Evory Deputy Clerk of the Crown and Pleas, 
 
 tiio ciown and in County Courts the Clerk, may sign and issue rules od 
 Court c'urL any Sheriff or Coroner to return writs and process issued out 
 niu's'to n- of the office of such Deputy or County Court Clerk and 
 ^uni writs, ^jrggtg^ to such Sheriff or Coronar; {b) and each Sheriff or 
 
 The matter of fact whether the discharge was effected by authority of tlie rreditor 
 or not is a proper question for a jury : Ward v. Broomhead el al, 7 E.\. 726, 
 Defendant, if sued upon the judgment after being discharged, may plead tlie fact 
 of discharge as a defence : viffers v. Aldrieh, 4 Burr. 2482. 
 
 (a;) A consent in writing is advisable though not indispensable. The act is for 
 the protection of the sheriff, who is not in general bound to go behind his niitho 
 rity, valid on its face, to make inquiries as to its sufficiency in point of law or fact; 
 see Lloyd v. Harrison, L. R. 1 Q. B. 502; Hargreaves el al v. Armilagc. L.U. 
 4 Q. B. 143. The authority of the attorney, as between him and his client, i? 
 not altered by this act. If the attorney give orders to the sheriff when unauthor- 
 ized, ho will be liable to his client for the consequences. The measure of damajM 
 in such case, where the action is not in debt, would be " the value of the custody 
 of the debtor at the moment of the escape, without deduction for anything that 
 plaintiff might have obtained by diligence after the escape:" see Arclen v. Gooi- 
 acre, 11 C. B. 371; Hemming \. Hale et al, 29 L. J. C. P. 137; Kin/an Hal v. 
 Hall, 24 U. C. Q.B. 248; Kinlock v. Hall, 25 U. C. Q. B. 141 ; Macrae v. Ckrh, 
 L. R. 1 C. P. 403. 
 
 (a) This section resembles the repealed enactment 8 Vic. cap. 36, s. i). It was 
 as follows: "That it shall and may be lawful for each and every deputy clerk of 
 the crown to issue rules upon the sheriff, coroners, or elisors of his district, for 
 the return of any writs of mesne or final process to him directed, in the same man- 
 ner as may now be done in the principal office." The new practice aulliorizts 
 the deputy clerk not only to issue, but to sign the rules ; yet restricts his autho- 
 rity to writs and process " issued out of the office of such deputy," 
 
 (6) The party entitled to a return ot a writ may make a demand in writing, in 
 which case it is made the duty of the sheriff to return the writ within eight days: 
 Stat. 27 <fe 28 Vic. cap. 28, s. 84. If the sheriff wilfully neglect or refuse so to do. 
 he is liable to be ruled to i-eturn the writ: lb. The rule for the return of process 
 may issue in vacation: McGowan v, Gilchrist, II. T. 7 Vic. P, C. MS. R. & H. 
 Dig. " Sheriff," ii. 1 a, per McLean. J. It should be a six days' rule : Hllon et d 
 V. Macdonell el al, 1 Cham. R. 207. Sed qu. see Clark v. Galhraith, 10 U C. L.-J. 
 296, As to computation of time : Regina v. Jarvis, 3 U. C. Q. B. 125. At the time of 
 service the original rule should be shown to sheriff: Hilton et al v. Macdonell, 
 1 Cham. R. 207. Personal service is in some cases dispensed with: see note* to 
 section 276. If he do not return the writ within the time limited by the rule, the 
 court will impose the costs of the rule upon him : McGowan v. Gilchrist, II. T. 
 8 Vic. P. C. MS. R. & 11. Dig. " Sheriff," ii. la; The Bank of Vpper Canmk v, 
 Maefarlane et al, 4 U. C. Q. B. 396, In every case in which the sheriff iHglfctj 
 or refuses to return any writ after demand in writing under the statute 27 & '-' 
 Vic. cap. 28, he is made subject to pay the costs of any order or rule taken outw 
 compel such return, and all other costs consequent thereon, as well as the costs 
 
 , 276.] 
 
 i:^B 
 
5. 276.] 
 
 RULING SHERIFFS. 
 
 381 
 
 Coroner shall, in case of his be'og served wiib aoy such rule, 
 roium such writs to the office from which the same issued, (c) 
 19 Vic. c. 43, s. 14. 
 
 376. (<0 I" ^^^^ ^ Writ delivered to a SheriflF for service siiriiir not 
 or execution has remained in his hands fifteen days, and in ft. s ..n 
 case lie has not been delayed from returning the same by an ivtiini"i in 
 order in writing from the party from whom he received the b,'in;;Vii'ro.i 
 Writ, his attorney or agent, and in cas^i he be afterwards iV.iays be*^ 
 ruled to return such Writ, (e) he shall not be entitled to any ruUng."^^'' 
 
 cf the (lemniul : section 36. It is no sufficient ground for opposing a rule for an 
 anaclinient for not returning a writ against goods that there is a question pending 
 tiforethe court as to the title to the goods: Slull v. McLeod, 1 U. C. Q. B. 402. 
 Where the rule served was for an attaclmient, because the sheriff had not brouglit 
 lip the body under his return of cepi corpus, held that it was a good answer to 
 Each rule that the defendant was arrested under the ea. sa. and placed in close 
 c;i-t'i(!y, and was afterwards admitted to the limits, and that he had not since been 
 cnfineJ to close custody by any process whatever: White v. Pelch et al, 7 U. C. 
 Q. B. 1. 
 
 {(] The sheriff or coroner, upon being served with the rule, is to return the 
 
 writ to tlic ofiice "from which the same issued." It was, under the old practice, 
 
 liekl timt a rule to return a fieri facias could not be issued out of the office of a 
 
 (Ii pHty clerk — as the writ itself did not issue out of that office : Anon. Dra. Rep. 
 
 2i'.. A sheriff having been ruled to return a writ without stating to what office, 
 
 and it appearing tiiat the writ had been issued from the office of a deputy clerk, 
 
 I to which office the sheriff might have returned it, the court refused an attachment 
 
 j a;!iinst hira, on an affidavit that the writ had not been returned to the crown office 
 
 1 at Toronto: Scott v. Benson, 1 Prac. R. 32. 
 
 (d) Taken from 3 Wm. IV. cap. 8, s. 18. 
 
 (0 This enactment in effect provides — 
 
 1. That in certain cases the sheriff may be ruled to return writs. 
 
 2, That when he is so ruled he shall not be entitled to any fees thereon, unless 
 k, within four days after being so ruled, returns or encloses the writ by post to 
 ihe party, his attorney or agent. 
 
 N(AV N. G. pr. 101 provides that " all rules upon sheriffs to return writs or bring 
 in the bodies of defendants shall be four day rules." It is difficult to see how the 
 stf.tiite and the rule of court can be made to operate harmoniously or beneficially 
 liiilws by providing in one rule on the sheriff for the two purposes of loss of fees 
 and euntenipt— tlie first by a default after four days, tho latter by a default after 
 sis days: Clark v. Galbraith, 10 U. C. L. J. 296. 
 
 It is provided by a recent statute that — In all cases when the party who 
 (lilivered any writ of process to any sheriff to be executed, shall, b}' him- 
 silf or by his attorney, or by the agent of such attorney, require, by a 
 i!tniMd in writing, the sheriff" to return such writ, either to the party or 
 It') liis att')rney or attorney's agent, or to the court from which tlie process 
 iwd, and whether such requisition bo made before or after the return da)' of 
 'iih \yrit or process, or before or after the service or other execution tiiereof 'he 
 ;!iriti' shall witliin eight days, inclusive of the day of the service of the re^isi- 
 1 11. return sueli writ or process according to the terms of the requisition to the 
 sriy, or to the attorney, or to the agent of the attorney, or to the court ; and 
 
882 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [f • 277, 2;« 
 
 ! m 
 
 
 Wlum iiiili'- 
 n){o Mot 
 hIIowimI on 
 scivicf (if 
 • mfsiic ]ini- 
 cvsH unlcs.i 
 Hcivcil liy 
 Sheiitr. 
 
 When 
 hlieriHs lia- 
 ble to I'dstS 
 
 for iii)t 
 
 rttiiiniiig 
 
 Writs. 
 
 fees thereon, unless, witliin four days after beliirr so ruled ho 
 returns or encloses the Writ by post to such party, his nttor. 
 noy or agent. 3 Wni. IV. c. 8, s. 18. 
 
 377. (/) In the taxation of costs no fees sluill bo allowed 
 for the mileage or service of Writs of Summons or other ?«, n. 
 process (//) unless served and sworn in the affidavit of serviot! 
 to have been served by the SheriflF, his Deputy or Uailili, 
 being a literate person (or by a Coroner when the Sheriff i, 
 a party to the suit,) nor unless a return of the Sheriff or Coro- 
 ner {as (he case mni/ he) be endorsed thereon except in 
 cases as provided in the eighteenth section of this Act. (/ii 
 19 Vic. c. 43, s. 32; 20 Vic. c. 57, s. 28. 
 
 S78. (0 In case at any time after the proper day for tlie 
 return of any Writ, or for the performance of any other dutj 
 or matter relating to the oflice of Sheriff or Coroner, applica- 
 tion bo made for a rule, or a rule be granted on hiiu by ubj 
 Court, for the return of the Writ or performance of the duty 
 or matter, (/) he shall, unless the Court or a Judge other- 
 
 
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 ■ -AV}.- 
 
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 in case the sheriff wilfully refuses or ncirlects to do so, ho shall he liable to be 
 ruled to return such writ or process, and to be further proceedod against qs in 
 other cases of contumacy to orders or rules of court: 27 «fe 28 Vic. cap. 28, s. 34, 
 In all cases when the party to the writ or process, who did not deliver tlic same 
 to the sheriff to be executed, is entitled, according to the practice of the court, to 
 call for a return of the writ or process; he may proceed in like manner to pro- 
 cure such return, as is above provided in the case of parties who have dullverod 
 the writ or process to the sheriff for execution : lb, s. 35. In no case in wliieli u 
 personal service on the sheriff of any rule or other proceeding has heretofore bctn 
 required, shall such personal service be necessary, if it appears by affidavit tliat 
 enquiry was made for the sheriff, and that he could not conveniently be found, to 
 make such personal service upon, but full and sufKcient service shall be deemed 
 to have been made upon such sheriff by serving the deputy sheriff of such sheriff, 
 if such deputy sheriff can be conveniently found to make such service upon ; and 
 if such deputy sheriff cannot conveniently be found, then such service may be 
 made upon the sheriff's clerk, or upon any bailiff of the sheriff who may for tlie 
 time be present in, or have charge of, the sheriff's office: lb. s. 37. 
 
 (/) Taken from C. L. P. Act, 1856, s. 32, as consolidated with C. L. P. Act, 
 1857, 8. 28, 
 
 {g) Only applicable to service of process. Therefore does not affect service of 
 notices, <fec. 
 
 {h) i. e. After sheriff has had the process for fifteen days and neglected to serve 
 it: see section 18. 
 
 (J) Taken from repealed statute S Wm. IV. cap. 8, s. 17. 
 
 {j) In every case in which the sheriff neglects or refuses to return any writ or 
 process, when called upon in accordance with 27 & 28 Vic. cap. 28, he is bound to 
 
 
S. 279, 280.] ATTACHMENTS AGAINST SHERIFFS. 
 
 383 
 
 wise orders, (Jt) pay to the party making the application or 
 obtaininj^ the rule, all taxable costs thereon. (I) 8 Wra. IV. 
 c 8, s. 17. 
 
 279. (»0 In case it appears to the Court or a Judge that if ai.i.ihu- 
 the application tor a rule is Irivolous or vexatious, the Court umis, may 
 or Judge may, on discharging the application, order that the (usts. 
 Sheriff or Coroner shall be paid all taxable costs and expenses 
 
 of opposing the same, (vt) 3 Wm. IV. c. 8, s. 17. 
 
 280. (o) In case a writ be issued out of any Court of Attarh- 
 
 iiiciitH for 
 
 Record directed to a Sheriff or Coroner and be delivered to in'ii i.tmn 
 
 , . 1 C11 .(v /I 1 ot'Wrilsinny 
 
 him for execution, and in case such ohenii or Coroner be im iHsmii 
 
 1 1 1 i/«i/-i uiik'ss I'ur- 
 
 orJercd to return the same by any rule or order of the Court tii.i- time 
 out of which the writ is.sued, and does not make such return gi'an'tea. 
 within tlie time specified in the order, any Judge having 
 jurisdiction in the matter may grant to the Plaintiff or Defen- 
 dant in the writ {as the case may ie) a summons upon the 
 Sheriff or Coroner to shew cause why a Writ of Attachment 
 should not issue against him ; (^) and the same or any other 
 
 pay tlie costs of any order or rule tnken out to compel such return, and of all the 
 (itlior costs consequent thereon, and also the costs of the previous requisition to 
 niftke the return: see further note b to section 275. 
 
 (k] See section 285, 
 
 (/) Not so extensive in its terms or in its operation as the enactment to which 
 reference is made in the previous note, 
 
 (m) Taken from repealed statute ti Wm. IV, cap, 8, s. 17, 
 
 (n) It is enacted by 27 & 28 Vie. cap. 38, that in case the court, or any judge 
 of the court from whicli the writ, process or rule issued, is of opinion that the 
 proceedings against tlie sheriff are frivolous or vexatious, such court or judge 
 may specially order that no costs shall bo paid by such sheriff, or may specially 
 order that costs shall be paid to the sheriff by the party taking such proceedings 
 as therein mentioned : section 38, 
 
 (o) Taken from repealed Stat, 7 Vic, cap, 33, s. 1, 
 
 ip) It has been said that personal service of a summons for an attachment, 
 witliout showing the original, is sufficient : Hilton ct al v. Macdonell ct al, 1 Cham. 
 R. 207. The summons should name the sheriff, instead of calling upon him by 
 ilesi;!;nation of his office : 76, In no case in which a personal service on the 
 sherilf was heretofore required is such personal service now necessary, if it appear 
 by affidavit that enquiry was made for the sheriff and that he could not conve- 
 niently be found for the purpose of personal service : 27 it 28 Vic. cap. 28, s. 37. 
 In such case service may bo made on the deputy sheriff: Jb. If the deputy can- 
 not be conveniently found, then service may be effected upon the sheriffs clerk, 
 or upon any bailiff of the sheriff who may for the time be present in or have 
 charge of the sherifTs office : lb. An attachment was granted against a sheriff 
 
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 Tni COMMON LAW PROOIOUBX ACT. 
 
 [8.280. 
 
 Judge having saoh jarisdiotioD may, at the return of th« 
 summons, discharge the same, or order a Writ of Attachment 
 to issue against the Sheriff or Coroner, or limit a further 
 
 who WM a member of parliament, for not returning a writ, pursuant to order 
 served upon liim : Belly. Buekanan, M. T. 1 Vic. MS. R. A H. Dig. " UtierifT," ij. i, 
 . Before the passing of Stat. 7 Vic. cap. 83, it wu held that a judge in chambert 
 had no power to grant on attachment : Rex v. Sheriff qf Alagara,I)t&. Hep. 343, 
 It is undecided whether, since that statute, a judge in chamtjors has power to pus 
 judgment upon a sheriff for contemi)t, wlien the object of the statute hu been 
 attained by the return of the writ: liegina r. Jarvi», U.C. Q.B. 658 ; but see sec- 
 tion 282. Where the sheriff returned the writ to the crown ofiicn, but it was not 
 filed, because the postage was unpaid, and the plaintiff, witli notice of these hcU, 
 obtained an attachment upon the usual affldavit that the writ " was not od the 
 files," the court set the attachment aside: litg'ma v. Afoodie, 1 U. C. Q. B. 410. 
 Tliongh the proceedings wore "('uractcrized by the court " as sharp apd hanh, " 
 the sheriff was made to pay ■> • rt.sto, bocausti, in order to make h ^ return effec- 
 tual, he was bound to pny the postage : Jb. Where the writ was enclosed to the 
 dork of tlio crown, thriHt or f ur days after the expiration of the rule, so that it 
 was not on the fil"8 vbn: thn ouur-:' -.{is uiado, but was produced in open court 
 by tlio clerk, an «»t»<i»,'.nn»nr ^rn? '. ^j , Ciicugh asked, for the purpose of mak- 
 ing the sheriff jp.y tho com,: r .' v. Robertnon et al, 8 O. 8, 804. A sheriff 
 having been ruIuJ to roturu a wiin .,. .fa. without stating to what office it was 
 to bo returned, nnd il appeared thnt ^'^e writ had been issued from the office of a 
 deputy clork of the crown, an attachment was i'efused, the only affidavit being 
 that ho had not returned the writ to the crown ofHcc in Toronto : Scott v. BeiMn, 
 1 Prac. R. 32. A sheriff cannot be attaclicd for non payment of the costs of a 
 rule to return a writ under this statute, unless there has been a rule specially 
 calling upon him to do so : Marcv v. BulUr, II. T. 2 Vic. MS. Doe d, McGrtgorx, 
 Grant, T. T. 2 A 3 Vic. Jf" R. A H. Dig. " Sheriff," ii. 11. A party who ruled 
 a sheriff, and afterwards gave an order to stay proceedings for a ccrttfn time, 
 hel J not entitled after that time (the writ not having been returned), to proceed 
 by attachment under his rule : Bergin t. Hamilton, M. T. 2 Vic. MS. R. & II. 1% 
 " Sheriff," ii. 2. Where after the delivery of a writ against lands to the gherin, 
 the plaintiff and defendant ngreed to compromise, and after a delay of more than 
 two years, the compromise was not effected, and ^he plaintiff obtained a rule for 
 an attachment against the sheriff, the rule was set aside : Crooks v. 0' Grady, 
 1 U. C. Q. B. 400. Attachment refused when applied for more than a year alter 
 the issue of the rule: Louckt v. Farrard, 4 O. ». 6. An attachment will not be 
 granted for not returning a writ, pursuant to rule issued on the same day that 
 the writ was returnable : Regina T. Hamilton, E. T. 2 Vic. MS. R. &, II. Dij^. 
 " Sheriff," ii. 13. The sheriff cannot bo regularly served with a rule to return a 
 writ until the return day is past: Regina v. Jarvis, 3 U. C. Q. B. 125. If an 
 attachment issue on such a rule, the proper course is to set aside the attachment 
 and not the rule: lb. A rule to return a writ was issued in Trinity Term (June). 
 In Jvily following the writ was in the hands of plaintitFs agent. In August 
 attachment issued. The court sot it aside upon payment of costs up to the time 
 the writ was returned : Rex v. Sherwood, 3 O. S. 3U6. Where a sheriff lind Ihreo 
 writs of execution against goods, and, having seized and sold and partly satisfied 
 the first and third writs, a stranger claimed the property ; (he plaintiff on the 
 second writ refused the sheriff indemnity, and he did not return his writ ; an 
 attachment was issued: Lattd v. Bum, T. T. 3 «& 4 Vic. MS. R. & II. Dig- 
 " Sheriff," ii. 18. An attachment may bo granted for an insufficient return: 
 Smith V. BeUowt, H. T. 4 Vic. MS. R. <fc H. Dig. " Sheriff," ii. 19. Where the 
 %7rit was returned before the attachment issued, though the return was disputed 
 
«.281] 
 
 ATTACHMENTS AGAINST SHERIFFS. 
 
 385 
 
 period after which such Writ of Attachment ehall issue unless 
 a return be made in the meantime, or otherwise order, as to 
 gncb Judge seems proper under the circumstances. (9) 
 7Vic. 0. 33, s. 1. 
 
 !i8lt (0 lo case such writ be not returned at the oxpi*^- 
 tion of any further time limited by the order of the Judge, as 
 mentioned in the last preceding section, and in case the ser- 
 vice of such order and the failure of the Sheriff or Coroner to 
 return the writ be proved, the Court in term time, or any {""*„'** "^1 
 Judge having jurisdiction as aforesaid in vacation, may order ^^'"^• 
 a Writ of Attachment («) to issue forthwith against the Sheriff 
 or Coroner. 7 Vic. c. 33, s. 2. 
 
 If Writ not 
 ri'tiiriii'il 
 within I'X- 
 tvniU-d time 
 
 Sivc'ii by 
 ikIki-, At- 
 tnclinifut 
 
 as (also, tlio slicriff was relievcl from the attachment on payment of costs : The 
 Bank 0/ Upper Canada v. JUae/arlane et al, 4 U. C. Q. B. 3»tt. If the return were 
 in fact false, the sheriff would bo liable to an action for it : Jb. An attachment 
 maj- issue a<^inst a sheriff for returning " foods on hand" to avenditiotti erponaa: 
 U-irptr V. I'oietU, E. T. 2 Vic. MH. U. & H. Dig. " Sheriff," ii. 9, Impertinent 
 matter in a return is considered as a contempt in the sheriff: Jone$ v. Senjitld, 
 Ta}'. Rep. 441. Attachment refused whore the sheriff had been more than six 
 months out of office, before rule issued against him : IavU v. Jiurwell et al, E. T. 
 3 Vic. ^fS. K. <fc H. Dig. " Sheriff," ii. 17 ; Molt v. Oray et al, 1 U. C. Q. B. 392. 
 Wiierc a return of cepi corpiu was made, the sheriff ruled to bring in the body, 
 and attaciied for default, and the attachment set aside for irregularity ; but while 
 in existence, defendant having given bail, was discharged by mperHdeat, the 
 coart held a second attachment on a second rule to bring in the body, issued 
 eight months after the setting aside of the first attachment, to bo irregular : Rex 
 V. Slieriff of Niagara, 2 O. S. 1 26. Second attachment refused until costs of set- 
 ting UHido a former one for irregularity were paid: Rex v. Ruttan, 6 O. S. 155. 
 Thu court will sometimes, under Hpccial circumstances, relieve a sheriff, by allow- 
 ing the return of a writ even after a motion has been made to bring in his body 
 on the coroner's return of cepi corput: Regina v. Jarvia, 1 U. C. Q, B. 415. But 
 relief will onlv be given on payment of costs : Rex v. Tfu Sfuriffa of London, 2 B. 
 ii Al. 192; ^ina v. Sheriff of MiddUatx, 8 D. dc L. 472. 
 
 ((/) The concluding part of this section vests a wide discretion in the judge to 
 do what is right in view of all the circumstances before him. 
 
 (r) Taken from repealed Stat. 7 Vic. cap. 33, s. 2. 
 
 (>) The writ of attachment should be directed to the coroner. If there be seve- 
 ral coroners for the same county, great care most be used in directing the attach- 
 ment. Where coroners are empowered only to act ministerially, as in the execu- 
 tion of process directed to them upon the default or incapacity of the sheriff, all 
 their costs will be void wherein they do not all join : 2 llawk, P. C. c. 9, s. 46. 
 And although one only executes the writ, it seems the return taust bo in the name 
 of all : lb. Where there are several coroners, some of whom only are interested, 
 tlie process must be directed to and executed by the others : Jorvis Off. Coroners, 
 3 ed. 64. If the writ be directed Coronatoribua, where there are more than two 
 coroners in the county, and after the writ issue one coroner die, the writ may be 
 executed by the survivors. But If one only survive he can neither execute nor 
 return the writ until the appointment of another coroner: lb. 66. The writ of 
 25 
 
380 
 
 JiiiIko In 
 CIiuiiiImtii 
 may onlcr 
 Ihhiiv of 
 WrItH ..r 
 Hfilmit Cur- 
 
 |>IM. 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 282. 
 
 a§a. (0 Upon tho return of " Cepi Corpu$" to aoy 
 nttachmont in vacation, any Judge having jurisdiction u 
 aforesaid may direct the issue of a Writ of " JLibeat Cor- 
 puif* and thereupon may exercise the same powers and dis- 
 cretion in committing the Sheriff or Coroner to close custody, 
 or in admitting him to bail, and in all other respects, as are 
 possessed by the said Courts respectively in Term time, (u) 
 7 Vie. 0. 33, s. 3. 
 
 attachment should bo personally delivered to the coioncr. In order to bring him 
 into contempt, it is not sufficient to deliver it to a clerk in his office: Fntrs. 
 Auhin, 1 II. & W. 332. So where the coroner upon being ruled to bring in the 
 body neglected to do so, an attachment was issued against the coroner : Aitdr(\tt 
 v. Sharp, 2 W. Bl, 911 ; Hex v. Peckham el al, lb. 121B. 
 
 (0 Token from old SUt. 1 Vic. cap. 83, s. 3. 
 
 (u) If coroner return eepi eorput an order may Bo obtained for n habeai corpui, 
 and tho same bo issued. When tho body is brought in, a motion is made tlmt the 
 porty bo sworn to answer certain interrogatories. lie is sworn arconiinfjly, and 
 i:)ay*then be discharged on bail, being bound to appear and answer tlic interro- 
 gatories when called on. Interrogatories arc then drawn up, which contain the 
 ' ciiargo against tho sheriff, after which an appointment is made under wiiich tiie 
 master examines the sheriff on the interrogatories. A motion, in England, is m>xt 
 made that tiie examination be referred to tho (Queen's coroner or master nn tlic 
 crown side, and an appointment obtained and served. Afterwards a motion U 
 made that the master make his report. If tho sheriff has cleared himsvlf of his 
 contempt, which ho can only do by bona fide obeying the rule, he is dischnrped: 
 Regina v. Weiton, 8 Jur. 1122. Hut if reported in contemjit, the court or jmlije. 
 after hearing affidavits in mitigation of sentence, and next the affidavits in n^<;ra- 
 vation, and the counsel of parties respectively, tho prosecutor having tiiu rcjily, 
 sentence is pronounced. The party in contempt may be sentenced to imprison 
 mcnt, which, however, is no exoneration: Regina v. llemiworth, 3 C. H. 715. If 
 hu return tho writ ho will in general be allowed to set aside tho attaclnrunt uii 
 payment of costs, i. e. all costs fairly incidental to the suing out of the attach- 
 ment: Tt/lerv, Campbell, 6 Bing. N. C. 1»2. If ho do not return tho writ within 
 three months afler attachment no will forfeit his office: section 284. On scttin;; 
 aside an attachment against tho sheriff for an escape under a ca. »a. the court will 
 if necessary direct an issue to ascertain the amount of damages : Regina v. The 
 Sheriff of Leicestershire, 11 C. B. 367. All affidavits afler attaciiment has issncd 
 must be entitled "Tho Queen v. A. B.:" Brown v. Edwards, 2 D. & L. 520. The 
 writ may bo set aside for irregularity : Regina v; Burgess, 8 A. tb £. 275. Banli- 
 ruptcy has been held to discharge the party: Rex v. Edwards, 9 B. «t C. C52; 
 Re Slater, 28 L. T, Rep. 286. Tho application must be made in a rcasonRble 
 time : Regina v. Burgess, 8 A. «b E. 276. A party in contempt beine permittcj 
 to bo at largo may be retaken on an alias attachment : (Jood v. H dk>, G M. 
 d S. 413. Every dcnuty sheriff, bailiff, or other sheriff's officer or clerk, wlio 
 may be entrusted with tho custody of any writ or process or of any book, pniwr 
 or document belonging to tho sheriff or his office, is required upon demand 
 upon him by such siieriff to restore and return such writ, process, book, pHpor, 
 or document to the custody of tho sheriff, and in case of neglect or refusal niny be 
 required, by any order o'any court of record in Ontario or of any judge of such 
 court, to return and restore such writ, process, book, paper or document to the 
 sheriff, and bo further proceederi against by attachment, as in other cases of con- 
 tumacy to orderi) or rules of court: 27 dc 28 Yic. cap. 28, s. 32. 
 
 ■- fit 
 
gS. 2*^:». 2><1.] FOni'KITL'KE OF OFFICK nV hllFIUFF. 
 
 3S8 (") All Writs of Attachnjcnt and " /f<tbras Cor- 
 pus" KMU'd niiiiirist any Slicriff or Coroner (l) niny be return- 
 able on a <lay certain in vacation to bo fixed by order of tbe 
 Jii(li.'t' or Court ordorinn; the same; and such return day Hhall 
 not bfl more than thirty days from issuing the writ, (r) and 
 when tho wiit is returnable in vacation, it shall, when ii<Huod 
 out of the Superior Courts, be made returnable before llic 
 presiding Jud<re iu Chambers, {(T) and when issued out of 
 any County Court, before tbe Judge thereof, (c) 7 Vic. c. 
 ;J3. 8. 4. 
 
 2S1. (/) Any Sheriff or Coroner who does not return 
 any writ i!<suod out of any of the said Courts within three 
 months after a Writ of Attachment for not returning the 
 same lias been executed against him, shall forfeit his office; (g) 
 and if he continues after the expiration of such period to ezer. 
 else the duties of his office without having been duly re-ap- 
 pointed to the same, he shall forfeit and pay the sum of four 
 hundred dollars to any person who sues therefor in any of 
 Her Majesty's Courts of Record having competent jurisdio- 
 tiun ; (/() but no such suit shall be brought after the ezpira- 
 
 887 
 
 Smli Writ* 
 limy »»• rr- 
 tiinialilu ill 
 ttTin iir 
 Tuvatloii. 
 
 Rli.riir or 
 t'liniiirr imi 
 ri'tiiniinK 
 Writs within 
 tliri I'liiiiiitlM 
 nftfr nttiii'li- 
 mi'iit I'Xi'- 
 I'utcil, to 
 forfeit ofllto. 
 
 (d) Taken from repealed Stnt. 1 Vic. cop. 33, s. 4. 
 
 (&) See nolo « to section 281, and nuto u to section 282. 
 
 (f) Apparently excluding the day of issue: see as to coinputntion of time, Voutig 
 T. %;/«. 6 M. A W. 49 ; 8. c. 8 Dowl. P. C. 212. 
 
 ((/) Hiul better bo mode returnable ia the very words of the act, " before tho 
 fresiJin:; j'ldge in ciiambers." 
 
 (0 Tills nicnns, it is presumed, tho senior judRO in chambers ; where there ia a 
 seuior ami junior judj?e: see Con. Stat. U. C. cap. 16, s. 4. See Stat. Ont. 33 Vic. 
 cap. 7, s. 14, as to county of Yorlt. 
 
 (/) Taken from repealed Stat. "J Vic. cap. 33, s. 6. 
 
 in) Defendant, Mercer, was appointed sheriff of the county of Norfolk on 9tli 
 Mardi, Is.'iS, and gave a bond, with tho two other defendants os sureties, covo- 
 LaatiriL' that Mercer as sheriff should pay over all moneys received, by virtue of 
 liiiuHice 08 sheriff. On I9th February, 1869, judgment wn» given for tiie crown 
 »?aliist him on an informntion involving a forfeiture of ottice wliereby his office 
 bicame vacant, but no writ of disehorge issued. On 16lh Mnrcli, IS.'ifl, a writ of 
 Ji- fit. was placed in his hands at tho suit of tho now plaintiff, and on 2'.Hh .lune, 
 1859, Mercer received the amount indorsed on the writ, but never paid f lie same 
 to the plaintiff. Held that his sureties were liable for moneys received by him 
 nlore jjficii: Kent v. Mercer, 12 U. C. C. P. 30; see further note i to this section. 
 
 (<) Quftre, could the action bo brought In a county court? see O'lieilif qui 
 tm V, Allan, 11 U. C. Q. B. 626; In re Judge of Elgin, in a cause of Medcalfe v. 
 Viiddifidi, 12 U. C. C. P. 411 ; Stinton qui tarn v. Gueit, 1 L. J. U. C. N.S. 19. 
 
 , it, J 
 
 m 
 
888 
 
 Co 'In of 
 
 Iintcfi'iliiiK* 
 o (•iifiiri'o 
 return "f 
 
 WrItM to »M! 
 
 Ill illHin-tloii 
 of Ju<lt;<-. 
 
 Art not to 
 
 interfere 
 
 with 
 
 cxiMtinK 
 
 roni«'li>'8. 
 
 THE COMMON liAW PROCEDURE ACT. [88. 285, 286. 
 
 tion of twclvo months from the time such forfoiluro was 
 inouned. (*') 7 Vio. c. 83, 8. 5. 
 
 SHtl. (J) Tho cost of any proceedings to enforce tiie 
 return of process shall bo in the discretion of the court or of 
 the presiding judge, (k) who maj order them to be paid bj 
 the sheriff or coroner, or by either of the parties in the 
 cause. (0 7 Vic. c. 38, s. 6. 
 
 380- (m) The two hundred and eightieth and following 
 Sections of this Act shall not be construed to interfere with 
 or t:iko nwny any remedy which existed before the passing 
 thereof («) 7 Vic. c. 33, s. 7. 
 
 (i) Tlic furfcituro is incurt'od after tho expiration of thrco months from the 
 writ of nttnclniH'nt for not rcturninia^ tho writ, Tho action for tho pennlty must 
 under tl»in sci-tion be broutflit witliin twelve months from tho exiiirntion of that 
 period. Ciilendnr months are intended: Con. Stat. U. C. cap. 2,8. 13. A sheriff 
 wlio wilfully makes a false return ui>on a writ or warrant of execution dircctcilto 
 hitn and placed in his hands for execution, unless by consent of both tht parties 
 to the snnif, is liable to forfeit his office : 27 A 28 Vic. cap. 28, f. 20. If any bailiff 
 or constable entrusted with tho execution of any writ, warrant or process, mpune 
 or final, wilfully misconducts himself in the execution of tho same, or wilfully 
 makes any false return to such writ, warrant or process, unless by tho consent of 
 tho pnrtv in whoso favor tho process may havo issued, such bailiff or coii&tiible ii 
 guilty of a inisdeinonnor; lit. s. 31. IJesidos he 's liable to answer in damages t" 
 any party neafriovod by tho misconduct or false return : lb. Although n sheriff 
 may have forfeited his office, and bocomo liable to b© removed therefrom !■'• :n- 
 son of his not Imvinj; coiuplicd with the provisions of tho 27 ik 28 Vic. cap , he 
 novertheless continues in office to nil intents and purposes, and the liauu.ly of 
 himself and his sureties remains until a new sheriff has been appointed and svorn 
 into office: lb s. 28; see also note ff to this section. 
 
 {j) Taken from repealed Stat. 7 Vic. cap. 33, b. 6. 
 
 (it) In every case in which the sheriff neglects or refuses to return any writ or 
 process when so called u|H)n under 27 & 28 Vic. cap. 23, ho is bound tu pay the 
 costs of any order or rulo taken out to compel such return, and of all other costi 
 consequent thereon, and also the costs of tho previous requisition to make tiie 
 return : 27 (k 28 Vic. cap. 28, s. 30 ; see also sections 278 and 279 of this act. 
 
 (/) The enactments referred to in the previous note and this section apparently 
 conflict. But it is presumed that tho judge, in the exercise of the discretion con- 
 ferred by this section, will so act as to prevent a conflict in fact : sco Clark t. 
 OalbraitK 10 U. C. L. J. 296. 
 
 (m) Taken from the repealed Stat. 1 Vio. cap. 83, s. 7. 
 
 (n) Attachment is not tho only remedy for non-return of a writ by a sheriff 
 whose duty it is to do so. Loss of fees may also follow : section 27B. Iksidcj 
 the sheriff may be held liable tc an action for misconduct, whether wilful or inad- 
 vertent, and whether of himself, his deputy, or one of his bailiffs: see Woodgft 
 V. KnatchbuU, 2 T. R. 148; Ptthall v. LayUm, lb. 712; Sturmy qui tarn v. Smith, 
 11 East. 26 ; Crovxkr et al v. iMng, 8 B. tb C. 598 ; Rapheui Hal v. Goodman, 8 A. 
 4b £. 666: iiear/t v. Hallifax, 7 M. <b W. 288; Wood r. FinnU tt al, 21 L. J. Ex. 138. 
 
2S7.] 
 
 EXAMINATION OF JUDOMENT DEBTORS. 
 
 880 
 
 KXAMINATION OK UKUTOUS ATTACIIMKNT OF DEBTS. 
 
 *iH7- (") Any creditor who hns obtained a jud<:nient (p) Examina. 
 in cifliiT of the Superior Courts (q) luny apply to the (Jourt jiuigm<'iit 
 or a JikIjjo thoroof (r) for a rule or order that the judjfiiient w'lu'it .Ubu" 
 debtor hIuiH be orally oxaniincd by the Judge of any County ",[!!,' '"'' 
 (\iurt or before any Clerk or Deputy Clerk of the Crown, or 
 before any other person to be specially named, as to any and 
 whtt (lebtH are owinj; to him, (a) and the Court or Judge 
 may make such rule or order for the examination of the 
 Ju(i;.Miicnt debtor, (^ and for the production of any books or 
 
 (o) Tukcii from Kng. Stat. 17 A 18 Vic. cap. 125, 8. 00. Founded «pon the 
 ^ei'diiil report uf the Lonniioii Law CoinniUitioucr8, Hcetion 4!i, liiap]>licnblc in 
 tliocaso of proceedin-js carried on against an abscondiuy debtor: sec section 289. 
 
 (;i) .\ii oxecutor who has neither revived the judgment obtained by his tes- 
 U\«r nor entered n sugpestion tijion tlie roll in iniriiuanrc of section 302 of tiiid 
 
 let, is not a judgment creditor witliin tlio meanuig of the act: Jini/wtrd v. i^hn- 
 vmH». 1 Jur. N.H. 067 ; 8. c. o lii. & It. 5W. Nor is a plaintitr in ejectment: Challrn 
 V IUika\ 2rt L. T. Kep. 20tt. Nor is tiio Queen : liegina v. litmon, 2 Proc. &.. 
 S.Mi. A party to an interpleader wbo has obtained an order for costs is h credi- 
 tor witiiin the act: Jlartlen v. ^7l^»Jlfe//, 1 B. «t S. 1. Hut an order of tlio court 
 of cimiiwry for tlio payment of money is not a judgment within tl>c meaning of 
 tliis section : The Financial Corporation, Limited, v. Price, L. 11. 4 C. P. 1 &5. 
 
 (i/) If a creditor having obtained a judgment in one of '''c superior courts of 
 cniiiiiiiin law afterwards sue upon it in nn inferior court, and obtain judgment 
 ujiim it in tlie inferior court, he will not be in a position to avail himself of this 
 eoclioii ; Junes v. Jenner, 2 Jur. N. S. 574. . 
 
 ()•) " Judge thtreof." The introduction of the word " t'nei'cof " here may have 
 tliL' ('(Fi'ct of restricting the application to a judge of the court in which the judg- 
 ment wa.H recovered. There was no such word in the C. L. 1'. Act 18.">6. ^or is 
 there in the Knglisli act from which it is taken. As to tho relative powers of 
 the eDiirl and judge see note u? to section 48. 
 
 («) Tlio subject matter of tho examination will be "' debts owing," as to which 
 fee note j to next section. A judgment debtor who is an executor is within tho 
 ciaiisu: Jiitrlon V. Robert*, 6 11. «fe N. 93. Payment may be enforced notwith- 
 ftaiidinMf decree for administration mode subsequent to the order for attachment: 
 Fotfln- v. liohertu, 2 (litT. 226. There is no way of orally examining n corporation 
 lull tlirungli its directors or officers; and as this section contains no provision for 
 fiicli an e.\aminati(m, no sucli examination can bo Iwid: Dickson v. The Neath aitd 
 JSnmi R. Co. 19 L. T. N.S. 702; see also Cameron v. Ikautford Has Co. 2 U. C. 
 L. J. ■20!). 
 
 (') The first case in this Province under this section proceeded by summons 
 anil Older: Jirown v. Uenniyer, 2 U. C. L. J. 211'; but see Connor v. Mcliride, 
 l*) 'i'-'i'i. It does not seem necessary, if the p^tplication be merely ui obtain 
 an iirul examination of defendant under this s iction, that tlie atliilavit should 
 shi.w debts due: Nimmo v. W'liland, 2 U. C. L. J. 213. I'lniiitilF i.s enalded 
 un.Kr this section to discover debts, and having di.>-eov§reil iheni, is eniitled 
 umicr section 288 to take proceedings to have them attached. Cure out^ht 
 
 >n 
 
 r*- 
 
 i 
 
800 
 
 THE COMMON LAW PROCEDUaE ACT. 
 
 [«■ 288. 
 
 Jtulk''' "I'ly 
 tioli ami 
 
 (locuiDcnta, (k) and tho oxaiiiinutii)n Hhall bo conducted in 
 the Haiiio nianiior, as in case of an oral oxaininntion of ao 
 opposite party, (v) and in the cnno of n judgment in any 
 County (/ourt, fluch County Court or tlie Judge or actiii" 
 Judge thereof may exercise similar jurisdiction in relation to 
 such judgment, and in liko uuinncr as might be exercised bj 
 one of the Superior Conrts sitting in Uanc. Qv) 19 A'ic, c. 
 l)U, 8. 17 ; 19 Vic. c. 43, s. 193. 
 
 288. («) Upon tho rx parte application of such Jud"- 
 nieiit creditor, (&) either before or after such oral cxamina- 
 
 to be taken to distinguish between this and tlio following section, the one liciti" 
 merely auxiliiiry to the otiier. As a mntter of priKleia-e a pnrty niflyini; 
 under cillier section sliould, wlienever nble to do so, stnto not only Hint jiiil;'- 
 nient lias been recovered and is nnsnlistied, but tliut ellorfs liuvi- bi-cn mailt; 
 to colli'i't tliu money by execution without success. Wiit-re nn n|iiilii'n(ion 
 was made for nn fx parte order upon atfidnvit tlint " plaintitf Imd rccovunil | 
 judgment against defendant, and tlint sueii judgment was wholly unnalbtiid." 
 per llicliards, J.; "Your nttidavit shouhl sliow that some attempt has been iiiado 
 to make tiie money l)y execution. I will not grant an order in the first iiLstuncc, 
 -but if yon think your grounds sutficient you may take a si.ni'noiis:" Inmi 
 V. Mercer ct al. Chambers, December 8, lb56; upiield in Smith v. ifeGill, 
 3 U. C. L. .1. i;M. And in a later caso an order in tlio first instance was 
 refused, though it was shown that execution had been issued and retmiieil nulla 
 bona, the Judge being of opinion that "the parties slioidd iiave an opporiunity "f 
 showing why they should not bo examined:" Carter v. Cart/ el al, Chniiibtrs, 
 December 9, IS.'iO, per Richards, J. ; and this now is the settled pr;ulice. The 
 order under sectio'n 288, it is expressly declared, may be obtained npun tlie u 
 parte a[>pIication of the judgment creditor. Service of the order upon liic wife 
 of tho parly without showing that it camo to his knowledge is not sutiiciciit to 
 entitle liis opjjonent to move for an attachment: Maton v. Mugriendj/e. ISC. li. 
 642 ; but service at the defendant's usual place of business, plaintiff bting mmblc 
 to discover his place of abode, was held sutflcient : Bird v. Wreflon, .So L. T. Uip. 
 2.^8: s. c. W. 11. 211. An attachment for disobedience of the order cannot be 
 granted by a judge in vacation : Greene el al v. Wood, 3 U. C. L. J. 110. An order 
 for flu; oral exuniination of a judgment debtor njay be granted, thciigh that dibtor 
 has been arnsted on final process at the suit of tho judgment creuitor: Broten v. 
 Jicniuyer, 2 U. C. L. J. 2i;j. 
 
 («) As to which SCO section 189 and notes thereto. 
 
 (»') As to which see section 192 and notes thereto. Questions as well n? 
 answers bad better botli appear on the face of tho examination: Jlclnnes \, 
 ll,irdy, 1 U. C. L. J. 29.'). 
 
 ("•) Tlif^ jnrisdiclion of county court as to examination of judgment debtors nnd 
 attaciiment of debts is the samo as the jurisdiction of tlie superior courts. 
 
 (d) Taken from Kng. Stat. 17 »fe 18 Vic. cop. 126, 9. 61. Inapplicable in the 
 case of proceedings carried on against an absconding debtor: see section 28'.'. 
 
 (/') See niite /> to section 287. The order is ex parte and nbs(dutc iu the 
 first instuace: si'c McCinn v. Bowers, 2 Ir. Jur. N. S. 379; Bergin v. Bennett, 
 lb. aso. 
 
t. 288.] 
 
 ATTACHMENT OF DEBTS. 
 
 891 
 
 tioD, (<•) «ncl upon his affidavit or that of bis attorney, (»/) "/"',':J^,'*; ,. 
 Dtatinz that Judgment has been recovered and that it is still »>•'>>' "^ 
 onHatiijllod, (ail) and to what amount, and that somo third 
 person (e) is indebted to the Judgment debtor (/) and is 
 
 (f) It is presumed tlint a party applylnij under tliln flection is in poAsession of 
 iiifjrinfttion ns to dulits owing to liis jtulirment ilobtor, Tliat infornmtion inny 
 hsvo hem ol)tiiined eitlier from the debtor liimscif upon l>is cxaininntion uiidtr 
 the preci'dinsf seciion, or in some manner independently of that section. Tlio 
 more siitisfnctory mode is to j)rocecd under it with n view to nn npplicntion under 
 thii sfctioii. A dc))t due to a judgment debtor wlio U dead cannot be attaelied 
 witiiDUt reviving tlio judgment against Ids personal representatives: The Com- 
 nfrd'il H'ink v. WilUamt, U. C. L. .1. Ofi. Whore plaintiff applied under this 
 ficcticin for an « parte order to attacli debts after having proceeded under tho 
 jirooftiing section (287), his application was granted upon an affidavit of the facts; 
 Miicpherson el al v. Kerr, Chambers, Heceniber 10, 185rt, per liiehards, .1. Tlio 
 stfiilavit, which was that of jdaintifT's attorney, was as follows: 1. That on, «te. 
 ill fiii(iniit was orally examined before the judge of tho county court of the eouiity 
 of Siiiiooc, in pursuance of an order bearing date, Ac. 2. That defendant ujion "uch 
 exii'iiinntion swore that one A. It. wms indebted to him in the sum of, «(;c. and that 
 said A. IJ. resides within the jurisdiction of this court, d:c. : 76. 
 
 ((/) " Or that of his attorney," Tho words used are in tho disjunctive, and in 
 this imrticular differ from tho words " and of his oltorncy or agent," usc^l in sec- 
 tion I'.tl, An affidavit of tho agent of tho attorney is not sufficient under this 
 section: Tiffani/ v. Boulton, 18 U.C. C. I'. 91 ; Jhi/il ct ul v. J/ui/iux. 5 I'rac. K. 15. 
 
 {dd) A judgment creditor who has taken his debtor in execution under a ea, 
 w will iKi't be allowed to attach debts: Jauralde v. I'urkn, (1 II. <t N. 4;il. Tho 
 irrp<t of tiie garnishee under a en. »n. docs not extinguish his debt so as to j)re. 
 vent it being attached under this section : l/arllei/ v. S/irmwrll, 1 H. A S. 1 : and 
 nltli<niu;h the debtor after arrest was discharged under a banltrupt act: In re 
 Iklahanv. Wurman, 11 W. R. 10. 
 
 (t) A judgment creditor cannot attach a debt duo by himself or by a firm of 
 whiiii he is a pai iner : Nonrll v. I/ullcIt et al, 4 11. »t AI. ti46. An order upon execu- 
 tors to pay a simple contract debt pursuant to nn attaching order was refused on 
 llie t'roiuul that the executors might be liable on specialty debts of their testator, 
 after siitisfaction of which they might have no assets, and before satisfaction of 
 which tiicy ouglit not to bo ordered to pay a simple contract debt : Ward v. Vance, 
 111 U. C. L. J. 2t59. If the garnishee die after the attaching order, the court hos 
 IK) power to permit a suggestion of the death of the gurnisheo so as to legalize 
 execution ogain.st his executors or administrators: s. e. Jb. 18'.t. A del)t due to an 
 adiiiiiiistrator in his representative capacity cannot be atta<hed to answer a debt 
 due iiy him in his private capacity : JSuwman v. Bowman, lb. aul. 
 
 (/) "7* indehled to." The affidavit, which must be that of tho jdaintitl or his 
 attorney, should in general be positive as to the iiukbtedness of tlic third juirty 
 or umnishee, more particularly as under tho oi>crali<in of tlie preccling section 
 iimterials for a positive affidavit may bo discovered : The Culann/ui liiKid Co v. 
 />w"n, ;t U.C. L.J. 27 ; JlazUwoodv. De Uenjue et at, II,. 2S, per McLean, .1. ; ]ii,yd 
 It'll V. //(ii/ne^, 6 Prac. R. 16; though there may be circumstances iniilcr which an 
 nffidiivil of belief would be sufficient: Jonet v. />e liirf/tie i-t al, lb. 31 ; Mcl.ann 
 et (it V Sudworth et al, 4 U. <1 L. J. 233. Tho affidavit should di.sclose the naiuro 
 and character of tho debt: Wilson et al v. The Corporation of the United Counii.M 
 o.f Huron and Uruce, 8 U. C. L. J. 136, per Draper, C. .J. It would be well also 
 that the amount should, if possible, be stated in the affidavit: Meldrum v. Tulloch, 
 
 
 t-f'a 
 
892 
 
 TnR COMMON L\W PROCEDURK ACT. 
 
 [8. 28g. 
 
 within tbo jurisdiction, («/) n Judpo of nny of the said Cnurtn 
 (a< the case may he) (/<) may order (/) that all debts owinj: (j) 
 by or accruing from such third person to the Judgment debtor 
 
 3 T^. ". L. J. 184. Rut this Is n mntter In the discretion of tlie jndijo, nnd if he 
 grnnt it tho ordvr will not be net aside : Tifany v. JJulUn, 18 U. C. (J. I', n. 
 
 (9) If tho gnrnisliGe, though roHUIini^ out of the jurUdiction, have money in tlie 
 hnnda of an agent within the jurisdictlun, such money inny be attached under this 
 ■ection, ])rovided plaintitr iduinly show that tliere is Hueh an ngent in additinn to 
 tlie ordinary content? of the affidavit: liroun v. Merrills, 3 U. C, L. .1. 31. Tlie 
 law \b different in tho cose of a foreign corporation : Lwuly v. Dickmn, ti U, C 
 L. J. 92. 
 
 (A) Tho court will not in tho firi«t instance In term time entertain the Applica- 
 tion; Jhttthar V. limitell, 2 Ir. Jur. N. S. 234; see further helahmit v. limntU,lb. 
 46y ; Mut-jihy v. Bcmult, 7 Ir. C. L. U. 9. 
 
 (»■) Tho ap)iHcation is not one of right, but in the discretion of the judge. 
 Where the judgment creditor sued the judgment debtor in on inferior ciuirt on 
 the judgment in tho superior court, and obtained nn order for payment by inetal 
 nients, sonio of which Imd been paid, the court refused an attaching order under 
 this section although the judgment was " unsatisfied :" Jones v. Jctiucr, 26 L J. 
 Ex. 819. 
 
 (j) Tho preceding section empowers the court or n judge to moke an order for 
 tlie oral examination of a judgment debtor ns to " dubts owing to him." And 
 this section empowers a judge to make nn order nttaehlng "oil debts owinsj or 
 accruing from" the garnishee. Tho subject mutter to be attached is a dtlit. It 
 may be stated as a general rule that if tho execution debtor could sue the 
 
 Jarnlshec in an action to recover the debt nn order to attach moy be mode : 
 owe* V. Jemier, 25 L. J. Ex. 319; see also Miller v. Mipm ct al, 1 E. 6i E. 1117.5; 
 McDoimllv. HollisUr, 25 L. T. Rep. 185; 0(ra<ffilit v. S/mrke;/, 30 L. T. lUp. 
 201 ; Smith v. T/ie Trust and Loan Co. 22 U. C. Q! ]{.' 525 ; ]\'el>sier v. WeUUr ft nl. 
 6 L. T. N.S. 13. Tho recovery of a judgment on a debt attochoble jirior to Piieh 
 judgment being recovered does not render the debt less attachable ; McKaiiw 'Jait 
 et al, 11 U. C. C. P. 72. A debt means something due; Oeraf/hty v. Sharhi/, .30 L. 
 T. liep. 204. Tlie order should when made be strictly regular; Cooper v. /Iraiiut. 
 27 L. J. Ex. 446. The penalty of a bond Is not such a debt oa can be attnehcd ' 
 Griswold V. The Buffalo, Branlford and Goderich R. Co. .3 U. C. L. J. 115 ; John- 
 ton V. Diamond, 11 Ex. 73. ft would seem that o liability which cannot be st' 
 off 08 a debt cannot be attached as a debt : MvXau</hton v. Wibnter, 6 U. C. L- 
 ^J. 17. An unliquidated demand is not a debt; Gwi/nne v. liees, 2 I'riic. R. 2S2: 
 'Johnson v. Diamond, 11 Ex. 73 ; Bank of Toronto v. Burton, 4 Proc. R 60. But 
 there may bo a debt of unoscertolned amount; Daniel v. McCarthy, 7 Ir. C. 
 L. R. 261. The superannuated ollowance grouted by the East India Company 
 to a retired servont by mere resolution Is rotlier a gratuity thnn o (Ubt: 
 Innes V. The East India Co. 17 C. B. 851. But contra as to the pension, distin 
 irulshed from half pay, of a retired Indian officer ; Dent v. Dent, L, R. 1 V. A 1>. 
 .^I'lfi. A legocy, though the executor promise to pay it, Is not nttuchnble: Mae- 
 dowall v. I/otlister, 3 C. L. Rep. 983. An unsettled balance of account duo bv 
 one partner to another cannot be attached : CamjMl v. J'rdat d al, 3 U. C. L. •!. 
 68 1 McCormiik v. Park et al, 9 U. C. C.P. 330. But where the debt is not a part 
 nersbip one it moy bo attached ; Beseoliy et al v. Ilmnilton Water Commissiomn, 
 Ih. 81. Money due in respect of sovlngs bonk onnulties to the wife of the jiuijr- 
 nient debtor cannot be attached : JJinyley v. Noliiuson, 26 L. J. Kx. 56. Nor a sum 
 of money paid into court : Jones et al v. Brown, 29 L. T. Rep. 79 ; French v. Lncit 
 
28«.] 
 
 ATTACFIMKNT OF DEBTS. 
 
 303 
 
 (ball be attached to noHWcr tho Judgment. 19 Vic. c. 90, s. 
 17; 19 Vic. c. 43, 8. 194. 
 
 ttal, 16 U. f. Q- B- BH. Nor money in tlic lutnda of n reci'lvcr of tlio court of 
 ChaiH'iry: Amea v. Thf Truileei of the liirkmhrad Dnrku, 20 lU-av. iliJ'i; Nixon 
 V. J,i)ijhlm, 7 Ir. Jur. N.S. .S07. Nor a dividend paynblu in Imniiruiitcy: Uoyne 
 T. Stinpion, 8 If. C. L. U. 52!J; Oilmour v. Simpion, lb. Ap. xxxviii ; Jjiiwton v. 
 MUy, ir. L. R. 1 Ex. 2o7 ; The Commercial Hank v. Wilbamt, B U. C. L. J. 66. 
 liut tlie [irout't'ds of nn exocufion in tlio hands of a sliuriff niny bo nttaclied : 
 .Vum/.v v.Simpton, 8 Ir. ('. L. U. Ap. xlv. ; Jn re Smart v. Millrr, 3 I'rac. 11. '.iH^. 
 Moiipy ill a slioriflTs liandH levied under an attaclinicnt for ciwfs awarded hy a 
 diLTfi' ill (■(iiiity, lield not liu!)le to bo attached : M'illiainii v. /iVfCM, 12 Ir, (Mi. U. 
 173. Money in tliuliands of the aR^ifrneo of an insolvent estate cannot be attaciiid 
 by tlic n.ssi);iiee for his own debt after tlie di-sniiHsal of tho petition of insolvency: 
 j'uhmloiK. V. Ffiiix, 3 Ir. Jur. N. S. 67. A verdict in nn action for nnruiuidated 
 damages cannot bo attached before judgment: Jontev. Thompnon, 1 E. IJ. A K. (i.S ; 
 Drfs>-r v. Joiien, 6 C. H. N.S. 4'IV; Uoyd et at v. IIayne», 5 I'rao. R. 15; Gwynne 
 V. lit-rs '2 rrnc. R. 282. Where tlio sura attempted to be garni.-«hed was money 
 8«arilt'd to the judgment debtor, of which, according to tho affidavit of one of the 
 nrbiti'fttiiis, a certain sum was for work done under a contract and tho remainder 
 for (l.'iiiiiigcs he had sustained l)y having had the work taken out of his hands, 
 hthl that m this latter portion did not become a debt until award made, only 
 attarhiiig orders coming in after the award would bind it: Tate and the Corpora- 
 tion of (he City of Toronto, 10 U. C. L. J. 66. 
 
 The section is applicable to funds in tho hands of a corporation or company : 
 Siitiiinan v. Donovan, lU Ir. C. L. R. Ap. xiii. So to funds in the hands of the special 
 Di«imy;er of a company in course of liquidation : Ex parte Turner, 3 L. T. N.S. 389 ; 
 8. c. '.! i let J. F. cfe J. 364 ; but see De WinloH v. Mayor, lic. of Brecon, 28 Beav. 200. 
 The |iroeee(ls of the sale of the commission of an oflicei in the army liable while 
 in tiie iiiuids of the army agents may be attached : Power v. Kenny, 2 L. T. N. 8. 
 93. Rent due may be attached : A[itchell v. Lee, L. R. 2 (f. H. 259 \ Leakey. Xohle, 
 6 Ir. U. L. U. 5m; Costello v. N^c»hitt, 2 Ir. Jur. N.S. 378. Contra if rent not duo: 
 MclMnn d al v. Sudworth el al, 4 U. (J. L. J. 233 ; I'he Commercial Hank v. Jarvit 
 tl al, 5 L'. C. L. J. 66. Nor can the salary of a municipal oftieer who holds Iiis 
 ofticu at will at an annual salary* payable quarterly be attached before some part 
 of it is due : Shanley v. Moore, 9 U. C. L. J. 264. A dabt due by tho garnishee to 
 a pir.soii who is a trustee of it for the judgment debtor cannot be attached : lloyd 
 tl III V. Iliiynes, B Prac. R. 15. There must bo a legal debt duo by a legal debtor 
 tl) a hiLjiil creditor: lb. Tho remedy by attachment of debts is only given in 
 ca<<('s where the whole proceeding is in tho common law courts: 1 he Financial 
 CorjmnitioH Limited v. Price, L. R. 4 C. P. 155. E(iuity will not give tho judg- 
 ment creditor tho remedy which he has at law : JJorsley v. Cox, L. R. 4 Ch. 
 I''.!. Nor extend the legal remedy: Gilbei-t v. Jarvit, 16 Grant, 265; Blake v. 
 Jitn<i», 11). 295, Tho claim of a debtor to compensation for misrepresentations 
 of parties in obtnining a patent for land is not in equity liable to be seized 
 or attaclied, at all events ueforc the amount is determined hy decree or other- 
 wise : Riihtrta v. The Corporatum of the City of Toronto, lb. 236. Tho surplus 
 uiomy in favor of the mortgagor arising out of a sale of the mortgaged pre- 
 mises limy be attached at law : McKay v. Mitchell, 6 U. C. L. J. 61. Debts duo 
 or to fall due on negotiable paper not attachable : see Mellish v. The Buffalo, 
 Br.iiii/urd and Goderich K. Co. 3 U. C. L. J. 108. Moneys paid by the owners 
 of land sold for taxes within one year from the day of sale as redemption 
 money to tho county treasurer, for the use and benefit of the purchasers and 
 banked in the name of tho county treasurer, cannot be attached at tlie instance 
 of the creditor of the corporation of tho county as a debt due by the bank 
 to tliu corporation : Wilton et al v. The Corporation of the United Countiet of 
 
 
304 
 
 TUB COMMON LAW PROCEDURB ACT. 
 
 [«. 288. 
 
 Huron nnil Ilruft, 8 V.C. L. .F. 1.1.5. But it \n not tvfrji (lcl)t dnc to n judrj. 
 
 iiH'iit <li'l>tor tliiit Clin lio nttnclKMl. Tho dobt nmy •«< iitttMulVil wltli rirc «tniirci 
 
 tlmt would prt'Vi'nt tliu juil^mont en-dilor from ••nfoiYin>f \U ininii-diutc imviiunt, 
 iind wIktc Huch in tliocnmi It U nutndi-ht of tlio nnturi' «'onti'ni|iliiti(l liy l! ■>,,(■( .' 
 h'tiinelt V. tt'f»lmiii$Ur Imprnvfmtnl Commminncri, 1 1 Kx. iJ4«. A |>ul)lic b<Mly 
 (lacorporattHl by nnt of |)urlianicnt) borrowed money from tlnio to I'niic on \y\t 
 bonilH, Homo of" wlik'li brnl n preferunco over others, nnd nventuidly « K<'mriil 
 inort;;iii;c of tlii'lr landH wns xiven on the oeenHion of fresh advances by one 
 eliiHH of bondhobh'rfl, whoso seeurity was inferior to that of another elans, wiicrc 
 by nnd by an net coiitirmin^ thu same, nil the bondholders were to \w |iniil 
 jxiri piitiu: held tlmt ono of such boudholdurs hnviniB^ recovered jud(;inint liy 
 <lefault aKaiuHt thu corporation couid not nttneh a debt due to it iVc^n a 
 builder for money advanced under tho power of their nets, as tlio irnrnmlieo 
 clauses only ap|)ly to ptTsonal ilebts, over which the jud(;mcnt debtor lias uDin- 
 plete control; ih. Tho net, though it Kivesajiower of execution ngainst prupiTly 
 not before subject to it, do<'s not in any way ntfuct tlio priority of clinrni-^ jo 
 as to alter the rights of third )>arties: Ames v. T/ie Tnisleea of the liirknthmi 
 JJockt, 1 Jur. N. S. .TiSt, An net incorporating n do(;k coinpnny nulboriHcij tiio 
 trustees, for I ho purpose of constructing nnd nniintaining tlio ilockx. In ram 
 inoiioy by mortgage of tho rates nnd tolls. The niortgagoos were to Imvo nu 
 share in tho maimgemeut nor any priority nniong themselves. The tru-liis wcra 
 empowered to enter ii'to contracts, but they were not to bo personally linljli', and 
 execution was to issue only ngainst tlie goods and chattels belonging to ihcm, 
 virtute ojVeii A judgment creditor obtained an order nhi to atlnch, in tin' lianiLi 
 of tho garnislieen, rates and tolls due by them to the company. IJefore tliH (inier 
 was made absolute nn order for tlio appointment of the chairman of the tiusttcj 
 receiver of tho rates and t(dls was obtained by consent, in a suit instituted by tiie 
 mortgagees in equity. Jteld, first, that tlio mortgagees of the rates and tolli Imd 
 priority over a jmlgment creditor; secondly, that tho gnrnishoo clauses of tlic I'. 
 L. P, Act did not attect tho priority of the charges ; thirillv, that if the iiiort;;nu'iH's 
 were not in possession, by their receiver, a iudgment cret^itor might take tlio toJU 
 ill oxesviition under the 0. L. I*. Act, but that the mortgagees, by enterin-; into 
 possession, might stop further cxe(nit,)n: Ih, lujuitablo debts are niiparcntiy 
 not within tlio section : Clark v. I'crnj, 26 L. T. Uep. -Iti ; lioi/d it id v. //iiyiiM, 
 n I'rnc. K. 1.') ; but see Alden v. lioomer ft al, 2 Prnc. R. S'.i\). A jiidgnicnt rrcd- 
 itor obtained an order under tho C. L. P. Act attaching nil debts owing IVuni 
 the garni«liee to the judgment debtor, and a second order directing the garnislicc 
 to p.'ij' to the judgment creditor the debt due from him (the garnislief) to the 
 judgment debtor, or so much thereof as might bo sufficient to satisfy the judt;- 
 meiit debt. At the time df tlipso orders the garnislico was indebted to the jiid;,'- 
 ment debtor in respect of, amongst other matters, certain costs in equity to nn 
 amount not then ascertained. Held that this debt was not aflfected by the oiders 
 obtained under tho garnishee enactments: Clark v. /Vm/, 26 L. T. Uep. 'It!. IJnt 
 debts i« prascnti witli a tolvendun in/uluro may be attached : llardiny v. Jlirnitl, 
 3 U. C. L. J. .31. The order in such n case will bo for the payment of the debts 
 by tho gnrnishoo to the judgment creditor so soon ns the period of credit has 
 expired: lb. Tho mere possibility that when the day of payment arrives tlicro 
 may bo a defence is no ground for refusing the order: Sparks v Yoitnije, 8 Ir. 
 C. L. It. 281. Tho order to attach may be allowed to stnnd though the conrt 
 discharge the order for payment : Ih. On an application foi- nn order upon » 
 garnishee to pa)' over to the judgment creditor the amount of nn accejitnnce due 
 by him to tlie judgment debtor, it was held necessary for tho applicant to show 
 that the acceptance was at the time of the application under the control of liie 
 judgment debtor: Mellish et al v. The Buffalo, lirant/ord and Qod'rirh R Co. 
 2 L. J. U. C. 230, per Ilngartv, J, It is doubtful whether the linbility of nn 
 endorser on a current note of which tho judgment debtor is holder, is, whilo 
 
I.28SJ 
 
 ATTACHMENT or DEIITS. 
 
 395 
 
 the mrto \* <'iirrpnt, mirli a tlobt m cnn In* attiiclioil tinder tJiin nrt; bi'o ftnn'n v. 
 /;./K-ir./«, \t M. it W. 7^0; niMO /'..trr// v. A'iMfll, :J Soott. N. K. 441. I>..|.t« 
 cniltAhly licliiiii{in|{ to niiotliur cnnnot lio Httnrhcil, tliitti tMiU nlrcmly nHHi;;ii(>(I 
 hv tin" |iuli?im'Mt ilcbtor aro not iittnclinltio : Jlinch tt al v. Cmtifi. 18 ('. H. 
 :S7; Xrlhur V. Chvgh tt al, 17 U. (!. (i H. aoi; CVrtr* v. Clark. H T. <*. L. .1. 
 in;- HVnf V. Uirkumhaw, 211 L. J. Kx. 240; HVA«/rr v. H'«&W(>r, :U Hi-av. ;('.»:». 
 It «iis lit Olio timo NiippoHod, OH \\w niitliorily of Wittln tt ui. v. I'<'rtir, ;j Kl. 
 (( II. 7i:i, 1li.it tlio (Iclit cotild be nttncliiMl nolwitlittnniliiii; tlio a«f<ii;iiiiu'iit or 
 iMliiiiiilili' cliiiruio. |)i-ovi(lu(l tlicro wan no iiollrc of Iho nHsi-jniiicnt or rliurpi 
 !;iuii til tliM loirninlicu nt tliu timo of tlio nttiuliini; ordcc. Kiit tlic aiitliorily 
 (if tliiit ca-^o was iiiiicli Hlinkcii in Itravnn v. I.vril Orfitrd. fl Dc'}. M. «t (S. fi07 ; 
 K'lii'l'r''!/ V. >hrvi$, 22 Ht-av. 1 ; mid I'tcttrrimj tt al v. Tht Ilfniromht Ifnihrtitf 
 Co. L U. :< C. I*. 2:^^. And it i^ now held that no notice to tlic (;arniMlii-o in 
 DMi'-'-'iiry to coiistitiito n sfood n.^Mignnicnt aH niraiiHt the atlai-liin^ order: Utf>- 
 mm v.'.S'f'lii't. L. II. !! ('. I'. 264. Hut if the trarninheo in trood failli, and with- 
 out ncitice of tlio aHxi^nnient, |>av the debt to thii jiidgineiit ilebtor, he \n to bo 
 |iroto(tiil : Conper v. Jtriit/iie, 8 11. ,t N. Ii72 ; Wonii tt al v. /hinn, I.. II. 2 Q. U. 
 ;;!. If tlie iturninheo having notici! of the iisniijiiiiieiit of the debt before tho 
 time fur fliowiiii; eaiistt ha!« ehipsed, he is botiiid to show tho aisii^nnient an 
 emw, mid in default of doing so may be eonijiellcd to ]my tlie delit a second 
 liiiic: /''. ; siee further notu /> to section 2M'.». Where the assignee not only nec;- 
 Icitc'd to (live the pirnislien notice of the aMiijjniiu'nt, but his attorne}- stood by 
 vliiji' nil attnchiii!; order was beinij made, and the (garnishee paid tlie debt to 
 tlio jiiilirtiieiit creditor, the court relieved the irnriiisheo from procceilints taken 
 liv tlic ii^-iu'iiee in the name of the jiidni.icn; ijebtor: An rt Journ ti purlt Kflh(, 
 7 r. ''. •'. I'- M!'. Where the debt is claimed by a third party as iissii;no(', 
 tl'.iTn is ir> power in this I'rovii ■. to direct an interpleader issue between such 
 tliii'il p'TSdii and tho Judtjnient creditor to try tho validity of the nllejred assign- 
 mint: h'rrr ft al v. Fnliarlon ft al, .S IT. (.'. 'L. .1. 222; McXaw/hInn v. iVtbultr, 
 fi r. ('. I,. J. 17: Chapmnn tt nl v. Shrphml tt al, 8 V. ('. L. J. 27.1. An assiijn- 
 iiuiit iifliT service of the nttaehini; order is no answer : Worlhinf/lon y. I'cdrrt tt al, 
 S r.(". L. .1. 18. An assij^nee of the debt has no .tlaliu before the court : llittinfftr 
 V. Mrlhiiifi.in, 10 U. 0. V. V. 31)5. Where the debt is attiiehable it is in irenernl 
 fiincrior to the lien of an attorney in respect of co.hIs due to biiu from thejudi^ment 
 (Icbter: li'Wih V. Kilwardn. 1 II. A \. 171 ; Tht Qiiftn v. Ilfimnn, 2 I'rac. \\. :?.M»; 
 lUnk I'f Vpi'tr Canada v. Wallaet, 2 rruc. U. :t.'»2. Hut it is only ri^dit that where 
 a fntii! Iiiis been recovered by the exertions of the party claimini; a lien, that ho 
 >li()iil(l have his reward out of tho fruit of his exerlifuis: Symplon v. I'ritilicro, 
 28 L .1. ('h. ti73, prr Wood, V. C. Attorneys who hnil ffiven notice of their lien 
 wcri; lii'id ciitithd to priority over attachinnf credifofs in the dislributioii of n 
 fiiml recovered by their exertions: lb. <17I. The iilaintitf havinjj obtained a decree 
 for iinyiiient b)' the defendant of a sum of money and costs, the defendant paid 
 imrt fif the sum to certain jnd)jfment creditors of tho jilaintiff under the authority 
 (jf two oiuiiirdiee orders. The jilaintitf'fl attorney had a lien for his costs at tho 
 tiiiif the tcarnisheo orders wero made, but no notice had been {jivcn to them pre- 
 viniis to tlie application for the parnishec orders, nor was the existeni-e of the lieu 
 iiR'iiliiincd to the juilfje who made tho order. J/tltl that the payment under tho 
 ^arlli^ll(•e orders was not, under the circumstances, n satisfaction of the jud;rment 
 (if the ci.urt: Thi' Ltadtr, L. 11. 2 A. it E. ;U4. Hut where a juily;meiit creditor 
 received lioin the garnishee the amount of his claim, with notice of tlie lien or 
 rallier cnuital)Ie riejiit of tho attorney of the judfj^mciit debtor for his costs in tho 
 action, he was coiujielled to refund tho money: Eisilrll v. Cuiiiii;/ham, 28 L.J. 
 Kx. 'Jl.S; s. c. 4 H. ife N. 871 ; see Knp. Stat. 2:"i it 24 Vic. cap. 12'7, s. 28, jias-sed 
 for tlie better protection of tho attorney's lien. It is doubtful whether notice of 
 tt inior atfachiiieiit out of the mayor's lourt of London interferes with the opera- 
 tion of au ultuching order under tliu corrcspuudiiig suction gf tho Kng. C L. P. 
 
 • i 
 
 1'' ft 
 
39G 
 
 TIIK COMMON LAW PHOCEDURE ACT. 
 
 [8. 289. 
 
 niOCEEDIXGS AGAINST GARNISHEES. 
 
 389. (/•;) Such third person is hereinafter called the 
 order tiie garnishee, (0 and service upon hira of on order that 
 aHJuar, &c. debts due or accruing to the judgment debtor ^hall be attach- 
 ed, or notice thereof to the garnishee in such manner 
 as the Judge directs, (»i) shall bind such debts in his 
 
 
 
 Act: Newman v. Rook. 4 C.B. X.S. 434; see furlher Red/ieadv. Welton, 2'.) Rcav. 
 B21 ; The Mvjor and Aldermen of the Cihi of London v. Cox el nl. L. R. 2 H. I,. 
 239 ; see also Manning v. Furquharton, 30 L. J. Q. B. 22; Fiilh et al v. Guppii a 
 al, L. II. 2 C. P. 32. Where there are rival claimants for the money the jiiili'. 
 ment debtor may file a bill of interpleader: Davidton^x. Douglas, 12 (irnnt, 181 ; 
 Nthon V. Barter, 10 L. T. N.S. 743. Where there are cross claims betwoL-n tlie 
 
 farnishee and the judgment debtor tlie balance onh' can be attached: Jltfte v. 
 %e Buffitlo, Branlford and Godcrich R. Co. Chambers, March 30, 1857, per 
 Robinson, C J. If a judgment be recovered against throe, the debts owing 
 and accruing to one or more of the judgment debtors niaj- be attached ; Miller v. 
 Mynn ft al, 1 E. «fe E. 1<»75; 8. c. 7 W. 11. 624. But a debt owing to two can- 
 not be attached to satisfy the claim of a creditor of one only of them : /// re Smart 
 V. Miller, 3 I'rac. R. 385. An order to attach the debt will be grnuted thuu^rji tlie 
 Kiuount be not stated: Meldrum v. Tulloch, 3 U. C. L.J. 184 ; Daniel v. McCarthy, 
 7 Ir. C. L. R. 2(51. Where on an order to attach debts tho court cannot see 
 clearly that the garnisliee is not liable, they will not set aside the attaching order 
 without allowing the judgment creditor to i)roceed against him by writ: Sei/mour 
 V. The Corporation of Brecon, 29 L. J. Ex. 243. Where the garnishee (a deputy 
 elieriff), after the lapse of ten months, applied to set aside an order for him to pay 
 to the judgment creditor the debt alleged to be due by him to the garnishee, upon 
 the ground that when the garnishee order was made tliere was no such debt, and 
 that he, the garnishee, was ignorant of the nature and effect of tlie proceedina;?, 
 tho application was refused : Gordon v. Bonier, 6 U. C. L. J. 112. The origin of 
 these clauses appears to be the practice by " foreign attachment," which has for 
 a long time prevai' .>d in the city court of London: see Com. Dig. " Attachincnt," 
 A. By tlie custom of London money was attachable, provided it was not ordered 
 to be paid by 8f;me judicial act: Grant v. Ilawding, 4 T. R. 313, note a; Cojii'dl 
 V. Smith, lb. 312; Caila v. Elgood, 2 D. «fc R. 193; but neither money nor pro- 
 perty could be attached in the hands of a garnishee "- ho had a lien upon it witli- 
 out dibcharging his lien: Nathan et al v. Giles et al, 6 Taunt. 558. A resem- 
 blance to the practice as to extents in chief in the second degree at tlio suit of 
 the crown also exists : see West on Extents, 242. 
 
 (*) Taken from Eng. Stat. 17 i 18 Vic. cap. 125, s. 2i3. 
 
 {I) See note e to s. 288. 
 
 (m) Personal service is not indispensable: VTard y. Vance, 9 U. C L. J. 214. 
 But it should be shown that the garnishee had knowledge of the service: /'>• 24t. 
 The appearance of the garnishee before a judge in chambers, by an nttorncy, 'o 
 object to the sufficiency of service, is a waiver of anj' objection in the serviei; 
 lb. 214. To an action for work and labour the defendant pleaded that H. recov- 
 ered a judgment against the plaintiff, and being such judgment creditor applied for 
 ond obtained an order that the debt due from the now defendant to the plaintiff 
 should be attached to answer the Judgment so recovered against the pluintitf by 
 B. ; that the debt was still unsatisfied, and that the order still remained in force; 
 held a bad plea for not alleging that the order was served upon or notice thereof 
 given to the garnishee: Lockwood v. Nash, 18 C. B. 08C; see furthor Walls et ui. 
 T. Porter, 3 El. A B 743. 
 
8. 289] 
 
 PROCEEDINGS AGAINST GARNISHEES. 
 
 397 
 
 hands, (») and bj the same or any sabseqaent order it may 
 be ordered that the garnbhee shal! appear before the Judge 
 or some officer of the Court to be specially named by such 
 Judge, to show cause why he should not pay the Judgment 
 creditor the debt due from him to the Judgment debtor, or 
 so much thereof an may be sufficient to satLsfy the Judgment 
 debt ; {o) but the two last preceding and this section shall 
 not apply in actions commenced or carried on agairjst a 
 Defendant as an absconding debtor, (p) 19 Vic. c. 90, s. 
 17; 19 Vic. c. 43, ss. 194 and 195. 
 
 (n) The word " bind " in this section lias rearirfJ the same construction us the 
 word " bind," used in the Statute of Frauds : 29 far. II. cap. 3. As under tlie Stntuto 
 of Frauds the goods are bound in tlie hands of the sheriff, so under tliis section 
 the debt ia bound in the hands of tiio (garnishee: JJolntf* tt al v. Tutton, 5 El. «fe B. 
 80; Turner el al v. Jones, 1 H. «kN. 878; Tilbury v. Broirn, 30 T..J. Q. B. 46; see 
 f'lrtluT Sweetnam v. Lemon et al, 13 U. C. C. 1'. J»S4; Tate and ■ t Corporation of 
 the City of Toronto, 10 U. C. L. J. 66. 
 
 (o) In cases in the superior courts, where the amoant claimed as due from any 
 garnislieo is within the jurisdiction of a countr or division court, tlie summons or 
 order to ap[>car, as it is called, must bo for the garnishee to appear before the 
 jud^e of the county court of the county in which the gamUhee resides : section 202 ; 
 and iu cases in tlio county courts, where the amount Ls within the jurisdiction of a 
 division court, the order to appear must be for the garnishee to appear before the 
 clirk (if a division court within whose division the garnishee resides : section 296. 
 Tliuugli an order to attach may be made, although the .amount of the debt do not 
 appear: note/ to s. 288 ; yet a summons to pay over should not be granted till 
 th"' amount is stated: Melarum v. Tulloek, 3 U.C. L. J. 184. Personal service of 
 the siunnions to pay over is unnecessary if it can be gathered from the materials 
 before the judge that the garnishee had knowlclge of the ser\ ice : Ward v. Vance, 
 9 1'. C. L. J. 214 ; s. c. 76. 244. Where the summons to pay over was argued in one 
 day and judgment deferred till the next day, when ttie summons was made abso- 
 lute (the garnishee having died in the interim), on an application to set aside the 
 order on the ground that it was made after the proceedings hud abated by reason 
 of the death of the garnishee, leave was given to the judgment creditor to amend 
 the order nunc pro tune without costs, the delay bavin-^ been the delay of the 
 judge and not of the party : /6. 1 44. But no suggestion of death of the garnishee 
 can be outcrcd in such a case so as to warrant execution against the personal 
 representatives: lb. 189. Where the order to pay is made for too much it may 
 be rescinded, and money paid thereunder recovered back in an action for money 
 had and received : S'usiona v. Strachan, 23 U. C. Q. B. 4'J'l. The judge may, if ho 
 cuiisitler the cause shown sufficient, at once diK-harje the summons instead of pro- 
 ceeding un'.ler section 291: Gritwold v. Tht BufaUj. Braniford and Goderich R. 
 C'J. o Li. C L. J. 115. As to effect of assignment of the debt sought to be attached 
 Bee note J to section 288. 
 
 ip) Notice of the garnishee proceetlings should be given as well to the judgment 
 debtor as to the garnishee : Ferguson v. Carmin, 2fl L'. C. <l. B. 26. An order on 
 
 Sariiishees to pay over having been made on a summons f>f wbicii the judgment 
 ebtor had no notice, it appeared, on application to rcst-ind the order, that the 
 debt had been assigned before the attaching order, and that the garnishees had 
 notice of such asmgnmeut beforb the summons was served on thum, to which they 
 
 
 
 
 '■-'■U- 
 
 i 
 
 --eA 
 
898 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 290. 
 
 When 200. (j) If the garnishee dues not forthwith (r) pay 
 
 ciitiuii iiiiiy into Court (s) the amount due from him to the judgment 
 guniu'ifec.'"' debtor, (<) or an amount equal to the judgment debt, («) and 
 does not dispute the debt due or claimed to be due fruin him 
 to the judgment debtor, (o) or if ho does not appear upon 
 summons, (to) then the Judge (x) may (j/) order execution 
 to issue, («) and it may be sued forth accordingly, without 
 any previous writ or process, to levy the amount due from 
 
 did not appear, and before payment over of the monej* under the order. Under 
 these circumstances the order was rescinded with costs, to be paid by the judg. 
 raout creditor, who, it appeared, was also aware of the ossij^nment : lo. 
 
 (q) Taken from Eng. Stat. 17 «fe 18 Vic. cap. 125, 8. 63. 
 
 (r) Must mean within a reasonable time after notice. The distance of the gn- 
 nisliee from court, and other like circumstances, may well be taken into account ' 
 when determining the sufficiency of tlie notice, 
 
 («) The garnishee, upon payment of the money into court, is freed from further 
 responsibility : Clark v. Clark, 8 U. C. L. J. 107 Payment to the judgment credi- 
 tor has not the same effect: lb. The subsequent execution of a composition deed 
 by the debtor will not prevent the creditor being entitled to the money so paid 
 into court : Culverhouse v. Wickens, L. 11. 3 C. P. 295. 
 
 (/) As to what constitutes an " amount due " within the meaning of this sec- 
 tion, sec note J to section 2S8. 
 
 (u) In cases where the amount duo exceeds tlve amount of the judgment 
 obtained against tlie garnishee's creditor. 
 
 (v) The garnishee, if not intending to dispute the debt, might, it is presumed, 
 indorse an udmissiou on the order or notice served upon him. 
 
 (w) If he neglect to indorse the order, Ac. as mentioned in preceding note, and 
 also neglect to appear, then an order for execution may be made by default. 
 
 (x) Apparently the judge in chambers for the time being, and this at present is 
 the understood practice. 
 
 (y) Mai/, not shall. The|e is a discretion in the judge even after default: 
 Clark V. I'err;/, 26 L. T. Rep. 46. Indeed the judges may use any of the garnishee 
 clauses at their discretion: Jones v. Jfiiner, 27 L. T. liep. 191, ^er Martin, B. ; see 
 also Lee et al v. Gorrie, 1 U. C. L. J. N.S. 76. 
 
 (z) Execution may be ordered to issue : 
 
 1. If the garnishee does not forthwith pay into court, «Lc. 
 
 2. And does not dispute the debt, Ac. 
 
 8. Or if he does not appear upon the summons, Af3. 
 
 A composition deed executed by the garnishee under section 192 of the English 
 Bankruptcy Act of 1861 is a bar to an execution under this section : Kent v. Tom- 
 kinson, L. II. 2 C. P. 602. As to the duty of the attorney to issue execution : see 
 Swtetnam v. Lemon et al, 13 U. C. C. P. 634. As to effect of a-ssignment of the 
 debt: see note j to section 288. If the garnishee dispute the debt and the judg- 
 ment creditor decline to proceed by writ to contest it, the attaching order may be 
 discharged with costs : 'Wintle v. Williams, 3 II. A N. 288. The execution may 
 be either against the goods c>r against the body of the g~>rnisheo, the latter only, 
 
291.] 
 
 WnEN QARNISHEE DISPUTES HIS LIABILITY. 
 
 800 
 
 sncb garnishee towards satisfaction of the judgment debt, (fi) 
 19 Vic, c. 43, 8. 196. 
 
 391. (i) If the garnishee disputes his liability, (c) the ifRnmisiir;.' 
 Jadze, ('0 instead of making an order that execution shall liability, 
 issue, may (c) order that the judgment creditor may proceed 
 airainst the garnishee, by writ (/) calling upon him to shew 
 cause why there should not be execution against him for the 
 alleged debt, or for the amount due to the judgment debtor 
 if less than the judgment debt, {g) and for costs of suit, (/t) 
 and the proceedings (i) upon such suit shall be the same, or 
 
 it is apiirelicndod, upon affidavit: see section 12 of Con. Stat. U. C. cai<. 24. As 
 to the forms of execution : see R. G. pr. Sch, Nos. 45, 46. 
 
 (a) The direction of the writ will be to levy the amount duo from such gnr- 
 nisliee 'towards .sntisfnction of the Judi/ment aelU." As to ti»c co...t9 where no 
 suit: sei! section 299. In case gurnisiiee dispute the debt, costs of suit are 
 expre«-ly provided for by tiio next succeeding section ; and in cases within tlie 
 jurisdiiti' HI of a county or division court express provision is made for costs; 
 si-etion 'I'Ji. 
 
 (4) Taken from Eng. Stat. 17 «fe 18 Vie. cap. 125, s. 64. 
 
 (r) To entitle the garnishee to a writ under this section he must satisfy the 
 jmiiffi tliat lie lias real ground for disputing his liability for the debt: A'etciiKin v. 
 Jlvok, 4 ('. \i. N.S. 4;14; and is acting bona fiJe in making the dispute: H7.sc v. 
 Birhemhaw, 29 L. .1. Ex. 240. Where an action is pending against the garu'shee 
 at the suit of the judgment debtor, and there be no collusion between them, the 
 court will not grant a writ against the garnishee under this section: Ricluird^oh 
 V, drcivff, 1(1 W. K. 45. The court will, unless quite satisfied that the debt is 
 not liahle to attachment, allow the judgment creditor to proceed by writ: Sey- 
 mour V, Tilt Corporation of Brecon, 29 L. J. Ex. 243. If the garnishee di.sputes 
 hU liability, and the judgment creditor declines to proceed by writ under this 
 fectioii. the garnishee is entitled to have the attaching order discharged with 
 Msts: W'inlle v. WUIiitvis, 3 11. & N. 288. ^Vhero several creditors proceed 
 ftiraiust the same garnishee, they are entitled to be paid in the order in which 
 tlieir attachment orders were served; Tate aud the Corporation of the City of 
 Toronto, 10 U.C, L. J. 66 ; see also Salaman v. Donovan, 10 Ir. C. L. R. App. xiii. 
 
 ('/) The Judi/e. See note x to section 290. 
 
 (t) Mnj. Discretionary not compulsory : Wise v. Birkenshate, 29 L. J. E.\. 
 240; Con. Stat. U. C. cap. 2, s. 18, sub-s. 2. 
 
 (./) Form of writ: R. G. pr. Sch. No, 47. 
 
 (.'/) The judgment debtor apparently is an admissible witness for either party 
 
 to tills issue. 
 
 (4) In Johnson v. Diamond, 25 L. J. Ex. 41, Pollock, C. B. said: "The question 
 in this ca.so is whether, when the warty has received the leave of the court to 
 brini: an action under tliis act, the successful party is not entitled to costs. I 
 am of opinion that he is." lb. 
 
 (i) Procceditiffi, i. e. declaratiou : as to which see R, G. pr. Sch. No. 48, et eeq. 
 

 •f > . 
 4 ; » ^1' 
 
 400 THE COMMON LAW PROOEDUBE ACT. [SS. 202, 293 
 
 as nearly as may be, as upon a Writ of Revivor issued under 
 this Aot. 0') 19 Vic. c. 43, s. 197. 
 
 When gar- ft9^, (k) In cases in the Superior Courts, when the 
 Spew blj- a™o"nt claimed as due from any garnishee is within the 
 [i;,'"«^'"J','/,|yg jurisdiction of a County or Division Court, the order to 
 8i K-rior" ^PP®^"^ ""^^^ under the two hundred and eighty-ninth section 
 Couru. shall be for the garnishee to appear before the Judge of the 
 County Court of the County within which, the garnisbec 
 resides (I), at some day and place within his County to be 
 appointed in writing by such Judge — and written notice 
 thereof shall bo given to the garnishee at the time of the ser- 
 vice of the order, (m) 20 Vic. c. 57, s. 16. 
 
 Kxecutioii 303. (n) If the garnishee does not forthwith Co) pay (n) 
 
 from County , , , ,. , ^ , , , ' 
 
 or DiviKiun the amouut due by bim, (j) or an amount equal to the Judg- 
 
 Knrnis'iipc mcnt debt, (r) and does not dispute the debt due or claimed 
 
 ti'i's^imtc the to bc due from him to the Judgment debtor, (s) or if he does 
 
 not appear before the Judge named in the order at the day and 
 
 (j) Where, in an action against a garnishee, he pleaded that the body of the 
 judgment debtor had been taken and still was in execution under a ea. sa. at tlic 
 suit of the plaintiff, held a good plea: Jauralde v. Parker, 3 L. T. N.9. 751. The 
 Jaw would be different if the debtor, after his arrest under the ca. »a. had obtained 
 his discharge under the Bankrnptcy Act: Ilalahan v. Worman, 11 W. R. 10. 
 Although the proceedings are directed to be the same as on a writ of revivor, it 
 is only as " nearly as may be," and therefore the court may add to an order mftdo 
 under this section the restriction that under the special circumstances of the case 
 the costs shall abide the event. But if the court give no such direction, they vir- 
 tually order costs to the successful party when they order the writ : Johnaon v. 
 Diamond, 26 L. T. Rep. 137. 
 
 (A) Taken fromC. L. P. Act, 1857, section 16. 
 
 (Z) Before the passing of our C. L, P. Act, 1857, the judges refused to grnnt 
 orders attaching small debts, which might have had the effect of bringing into the 
 superior courts innumerable suits within the jurisdiction of inferior covirts, and 
 increasing costs to a startling amount: Topping el al v. Salt, 3 U. C. L. J. 14. 
 
 (m) The order to attach and summons to appear are usually combined. When 
 this is the case, the latter should be to appear in cases under this section before 
 the judge of the county court of the county within which the garnishee resides, 
 at some day and place appointed in writing by the judge. 
 
 (n) Taken from C, L. P. Act, 1857, section 16. 
 
 (o) See note r to section 290. 
 
 (p) " Into court " probably intended : see note a to section 290. 
 
 (q) See note J to section 288. 
 
 (r) See note « to section 290. 
 
 («) See note v to section 290. 
 
88. 294, 295.] DT8PUTE OP DEBT BY GARNIRQEE. 
 
 401 
 
 p'ace appointed by snch Judge, (^ then such Judge on proof 
 of service of the order and appointment having been made four 
 dava previous, (u) may (v) make an order directing execution 
 to issue out of the County Court or out of a Division Court 
 according to the amount due, (to) and such order shall with- 
 oat any previous writ or process, be sufficient authority for 
 the clerk of cither of such Courts to issue execution for levy- 
 ing the amount due from such garnishee, (x) 20 Vic. c. 57, 
 
 8.10. 
 
 394. (a) The Sheriff or Bailiff to whom such Writ of The sheriff 
 Execution is directed shall levy the amount mentioned in the luvy tim 
 said Execution, towards satisfaction of the Judgment debt, Vmi whu 
 together with the costs of the proceeding, (t) to be taxed, "" 
 and his own lawful fees, according to the practice of the 
 Court from which such Execution has issued. Q;) 20 Vic. 
 c. 57, 8. 16. 
 
 ft9S. (d) If the garnishee disputes his liability, (e) then ProRecdings 
 Buch Judge of the County Court may (/) order that the |[,'{'^s"iVe 
 Judgment creditor shall be at liberty to proceed against the *^'^'^^- 
 garnisheo according to the usual practice of the County or 
 Division Court, as the case may require, (fj) for the alleged 
 debt or for the amount due to the Judgment debtor if less 
 than the Judgment debt, (ft) and for costs of suit (i) 
 20 Vic. c. 57, s. 16. 
 
 (t) See note w to section 290. 
 
 («) t. e. Upon proof by affidavit of service four days previous. 
 
 (v) See note y to section 290. 
 
 (to) See note z to section 290. 
 
 [z] On. As to form of writs of execution : see note a to section 290. 
 
 (a) Taken from C. L. P. Act, 1661, section 16. 
 
 (6) See note a to section 290. 
 
 (c) To be taxed, by, it is presumed, the proper officers of the conrt whence tlie 
 execution issued. 
 
 ((f) Taken from C. L. P. Act, 1867, B. 16. 
 
 (c) See note e to section 291. 
 
 (/) See note e to section 291. 
 
 (g) As to form of writ in the superior court: see R. G. pr. Sch. No. 47. 
 (A) See note g to section 291. 
 (i) See note A to section 291. 
 26 
 

 402 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 296, 
 
 t 
 
 \ I 
 
 I I 
 
 rrncocdinKs 306- (k) lo cascs in the County Courts irben the amount 
 cvnirt'il'wiun claimcd a» due from any garnishee is within the Jurisdiction 
 vTthin nil! of a Division Court, the order to be made under the two bun- 
 on)ivib^oir dfed and eighty-ninth section, shall be for the garnishee to 
 Courts. appear before the Clerk of the Division Court within whose 
 Division the garnishee resides, at his office, at some day to 
 be appointed in the said order by the Judge of the County 
 Court ; (/) and the said order shall be served on such garni- 
 shee, (m) and if the garnishee do not forthwith (n) pay the 
 amount due by him (o) or an amount equal to the judgment 
 debt, ( p) and do not dispute the debt due or claimed to be 
 due from him to the judgment debtor, {q) or if he do not 
 appear before the Division Court Clerk named in the order at 
 his office at the day appointed by such Judge, (r) then such 
 Judge, on proof of the service of the order having been made 
 four days previous, (s) may (t) make an order directing 
 execution to issue out of the Division Court of the DivisioQ 
 in which such garnishee resides, according to the amount 
 due, (u) and such order shall without any previous summons 
 or process, be sufficient authority for the Clerk of the said 
 Division Court to issue execution to levy the amount due 
 from such garnishee, (v) and the bailiff to whom such Writ 
 of Execution is directed shall be thereby authorized to levy 
 and shall levy the amount mentioned in the said execution 
 towards satisfaction of the judgment debt, together with the 
 costs of the proceeding to be taxed, and his own lawful 
 
 (k) Taken from C. L. P. Act 1857, s. 4. 
 
 (!) Sec note I to section 292, 
 
 (m) As to what is sufficient service sec notes m ond o to section 289. 
 
 (n) See note r to section 290, 
 
 (o) See notoy to section 288, 
 
 '( p) See note u to section 290, 
 
 (g) See note v to section 290, 
 
 (r) See note w to section 290. 
 
 («) t, e. Upon proof by affidavit of service four days previous. 
 
 (0 See note y to section 290, 
 
 ^m) See note z to aection 290, 
 
 i(t<) Qh. as to form of writ of execution see note a to section 290. 
 
 V:" ,. '.■ 
 
 0)' 
 
 he.'.! t- 
 
 no>-t( 
 
 >aid 'Jiiu. 
 L. R. 2 (, 
 
 (e) Th( 
 ment del 
 
 executed, 
 tliut nia); 
 
297.] 
 
 PAYMENT BY GARNISHEE. 
 
 403 
 
 fees; (w) but if the garnishee disputes bin liability, (x) then 
 such Judge may (jf) order that the judgment creditor in the 
 said County Court shall be at liberty to proceed against the 
 garnishee, according to the practice of the said Division 
 Courts, {£) for the alleged debt or for the amount due to the 
 judgment debtor if less than the judgment debt, (a) and for 
 costs of suit, (i) 20 Vic. c. 58, s. 4. 
 
 307. (c) Payment made by or execution levied upon the Fnytiimt i.y 
 garnishee under any such proceeding as aforesaid, {d) shall f."""vana " 
 bo a valid discharge to him as against the judgment debtor ^^ '^^^''' 
 to the amount paid or levied, (e) although the proceeding 
 
 (ic) Seo note a to section 290. Tho costs it is presumed are to be taxed by the 
 proper officer. 
 
 [x) See note e to section 291. . 
 
 (;/) See note e to section 291. 
 
 (?) As to form of writ in the superior courts see R. G. pr. Sch. No. 47. 
 
 (a) See note g to section 291. 
 
 [h) Sec note A to section 291. 
 
 (f) Taken from Eng. Stat. IT <fe 18 Vic. cap. 125, s. 66. 
 
 ((/) Tho mere issue of tho attaching order is clearly no defence to an action 
 broui^ht against tho garnislico by the judgment debtor: Lockwood v. Na»h, 18 C. 
 IJ, 530 ; see also Denton v. Maitland et al, 1 1 Jur. 42. It was nt one time supposed 
 that the service of tho order would afford a defence : Carr v. Baycro/t, 4 U. C. 
 L. J. 209 ; McNaughton v. Webster, 6 U. C. L. J. 17. But it is now settled that tlie 
 garnishee is not discharged as against the judgment debtor till at all events served 
 witlj a judge's order for the payment of the money : Turner et al v. Jones, 1 II. & N. 
 878 ; Nemian v. Rook, 4 C. B. N.S. 434 ; McOinnU v. TIte Corporation of YorkviUe, 
 21 U. C. Q. B. 163, 171. And the better opinion seems to be that until payment 
 made or execution executed under the order to pay, the garnishee is nut dis- 
 charged: Blevins v. Madden, 1 1 U. C. C. P. 195. 198 ; Sykes et al v. The Brockville 
 ami Ottawa li. Co. 22 U. C. Q. B. 459 ; see olso Magrath v. Hardy, 8 Scott, 627 ; 
 Westoby v. Bay, 22 L. J. Q. B. 418. Payment to the judgment creditor under tho 
 attaching order and before the order to pay is not sufficient: Turner d al v. Joius, 
 1 H. & N. 878 ; Clark v. Clark, 8 U. C. L. J. 107 ; but see Cooper v. Brayne, 27 L. 
 J. Ex. 446 Lockwood v. Nash, 18 C. B. 636. If the garnishee after moving against 
 thv • r vj,i,i.jtaxily pay the amount attached, his rule nisi will be discharged 
 « ■ ' r. Adair V. Wallace, 6 U.C. L.J. 113. Payment under a garnishee order 
 ol' -■ -jnounced due to a successful party by decree of the court of admiralty, 
 ftc!.', i 3 ,\ (latisfaction of the debt: The Olive, 1 Sw. Adm. 423. Tho law will 
 no't). 'p?! a person to pay a sum of money a second time which ho has onco 
 paid v!:iuor the sanction of a court having competent jurisdiction : Wood v. Dunn, 
 L, R. 2 Q, B. 80. 
 
 (e) The garnishee, it will be perceived, is by the act of his creditor the judg- 
 ment debtor in the original suit, after order to poy and payment or execution 
 executed, placed in a situation in which he acquires a good answer to any action 
 tliut may be brought ogaiost him by his croditor. Upon general principles it 
 

 '*"., 
 
 
 Costs of 
 auch appll- 
 uatiun. 
 
 404 THE COMMON LAW PROOBDOnV ACT. [88. 298, 299. 
 
 flliould bo afterwards set aside or the jadgment be revert. 
 ed. (/) 19 Vic. c. 43, s. 198; 20 Vic. c. 57, s. 16; 20 Vic 
 0. 58, s. 4. 
 
 Attachment 908. C^) There shall be kept at the several offices of tie 
 
 kt-ptln'tim Clerks of the Crown and Deputy Clerks, and at the several 
 
 cferkVoftho County Court Offices, a debt attachment book, and in sucii 
 
 Deputiv".*^ book entries shall bo made of the attachment and proceedings 
 
 thereon, with names, dates and statements of the amount 
 
 recovered and otherwise; (A) and the mode of keeping such 
 
 books shall be the same in all the offices, and copies of anj 
 
 entries made therein may be taken by any person upon appji- 
 
 cation to the proper officer, (t) 19 Vic. c. 43, s. lUO. 
 
 390. (k) The costs of any application for an attachment 
 of debt under this Act, (l) and of any proceedings arising 
 from or incidental to such application, (m) shall be in the 
 
 seems that where such answer arises before judgment, it may be pleaded to the 
 further maintenance of the action or »?(i8 daire'm continuance, if after ploa pleaded: 
 section 98. In both cases the plea is an eflPectual bar : see Webb v. Hurrell, 4 C. 
 B. 287, 803. The plea it seems roust be special in cither case, and may be the 
 same tnutatu tnutarMU as that made use of when attachments are issued from the 
 City Court of London : see Nonell v. Hullett et al, 4 B. d Al. iS40 ; Cro»by t. Udhr- 
 viffton, 4 M. <b O. 933. 
 
 (/) The process of attachment in the City Court of London could only be 
 resorted to When the cause of action aeainst the original defendant arose within 
 the jurisdiction of the court from wmch process issued : In re Wadtworth and 
 Tlie Queen of Spain, 17 Q. B. 171. And yet it was held that a garnishee paying 
 a debt under a judgment of the court could not be afterwards compelled to pay 
 it over o^ain to his creditor, upon the ground tJiat the original cause of action 
 arose without the jurisdiction of the court : Weatoby t. Jiuy, 2 £1. & B. 6U6 ; 
 Cooper V. Brayne, 27 L. J. Ex. 446. 
 
 (jg) Taken from Eng. Stat. 17 &, 18 Vic. cap. 126, s. 66. 
 
 (A) The form of book sanctioned by the courts has colmmiB for the following 
 information: — 1. Name of plaintiff ; 2. Name of jud^ent debtor ; 8. Amount of 
 judgment; 4. Date of judgment; 6. Name of garnishee; 6. Date of order for 
 attachment; 7. Amount ordered to be paid by garnishee; 8. Date of such order; 
 9. Date of order for execution against garnishee ; lU. Date of order that judg- 
 ment creditor may proceed against garnishee : R. 6. pr. 60, and schedule. 
 
 (t) Proper ofieer, i. e, the officer having the custody of the particular book 
 from which copies of entries are required. 
 
 (Jc) Taken from Eng. Stat. 17 &, 18 Vic. cap. 125, s. 67. 
 
 {I) The words of the section thus far comprehend only preliminary pro- 
 ceedings. 
 
 (m) Whether these words could be taken to apply to proceedings had under 
 the English enactment corresponding to our section 291 was for some time a qnes- 
 
S. 300.] SPEOIFIO BJCUVERT OF CHATTELS. 405 
 
 (lUcrction of the Court or Judge, (n) 19 Vie. c. 4.3, a. 200. 
 
 TO COMPEL SPECIFIC DELIVERY OF cnATTEI.8. 
 
 300. (o) The Court or a Judge {p) upon the applica- sp<>riflr<io- 
 tion of the Plaiutiff in any action for the detention of any cUuturmay 
 
 tion. It has since been held that they do not apply to the costs of such pro- 
 ceedings, and that they abide the event: see note A to section 291. 
 
 (n) In The Bank of Montreal y. Tarringlon, 8 U. C. L. J. 185, Sir John B. Robln- 
 lon made an order for the garnishee to pay, but declined to order costs, " on the 
 irruund that this is a special provision for the accommodation of the creditor, and 
 therefore it is enouch for him to receive the designed benefit by paying for it." 
 Snragi^e, V. C. in Euani y, Evani, I U. C. L. J. N.S. 10, referring to the case of 
 m Bank of Montreal v. Yarrington, said tliat " though he did not agree with 
 the reason (for it), yet, as it was the rule in a court of coordinate jurisdiction, it 
 woald be convenient that there should be a similar one in this court (Chancery), 
 and that he should therefore follow it until a different one should be cstablisiied, 
 vith the concurrence of the other members of the court." Evani v. Evans after- 
 wards came on before the full Court of Chancery, in appeal, when Sprag^e, V. C. 
 said that " since giving his judgment he had conferred with one of the common 
 law judges, and had been informed by him that it is now the prautice at law to 
 grant the costs of a garnishee application when there is a sufficient fund out of 
 which to pay them; and he accordingly, in conformity with his opinion as 
 eipressed at chambers, concurred with the chancellor in reversing the previous 
 decision:" Jb. p. 62. Upon an application by a judgment creditor for an order 
 that the garnishee should appear before the master, the costs of these proceedings 
 were allowed against the defendant in the action, and not against the garnishee : 
 Dotkrill y. Boylan, 2 Ir. Jur. N.S. S68. Upon making absolute an order for the 
 gurnisiiee to pay over, a rule was granted on the defendant to show cause why 
 tiie plaiDtifF should not be at liberty to deduct the costs of the proceeding from 
 the sura paid in by the garnishee : lb, 380. The disposition of the costs may be 
 reserved in the order, giving liberty to proceed by writ: Waldron v. Parrott, 
 9Ir.C. L. R. 176. 
 
 (o) Taken from Eng. Stat. 17 A 18 Vic. cap. 126, b. T8. Founded upon the 
 second report of the Common Law Commissioners, section 47. This is a section 
 which in some degree confers equitable jurisdiction upon the courts of common 
 law. Courts of equity have from a very early period compelled the return of 
 specific chattels: see Puiey v. Puiey, 1 Vern. 273; Duke of Somerset v. Cookson, 
 S P. Wms. 389 ; Saville v. Tankred, 1 Ves. 101 ; Fells v. Read, 8 Ves. 71 ; Papillon 
 v. Voire, 2 P. Wms. 470 ; Ford v. Peering, 1 Ves. jr. 72 ; Duneomb v. Maj/er, 8 Ves. 
 319; Jackson v. Butler et al, 2 Atk. 806 ; Oibson v. Ingo, 6 Hare, 1 12 ; Woody. How 
 diffe, 3 Hare, 804 ; Lingen v. Simpson, 1 S. «fe. S. 600. It has been the proctice 
 of courts of law (especially in modern times), where they see thot justice requires 
 the interference of a court of equity, and that a court of equity would interfere, in 
 every such case to save parties the expense of proceeding to a court of equity, by 
 giving them the aid of the equitable jurisdiction of a court of common law to 
 enable them to effect the same purpose : Phillips et al y. Clagett, 1 1 M. «fe W. 9 1 , per 
 Abinger, C. J. Courts of common law have now, under this section, the same 
 jurisdiction after judgment in detinue to compel the return of a chattel as a 
 Court of Equity: see Mayall y. Higbey, 1 H. 4 C. 148. 
 
 [p) The court will review the order of a judge made under this section : Chil- 
 ton V. Carrington et al, 16 C. B. 730 ; see also Grugeon v. Gerrard, 4 Y, & C. 119 ; 
 Phillips et al y. Clagett, 11 M. A W. 84 ; see further note k to section 48. 
 
 
»5 *7^ 
 
 r%4 
 
 " : ' 
 
 
 h r 
 
 f 
 
 :V 
 
 '^ 
 
 •§. 
 
 7h^ 
 
 . ^i?'. - 
 
 
 406 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 800. 
 
 bi! rnm- 
 nrllfil, nuil 
 Low. 
 
 Olitiiiti to 
 
 tiu< i>iiiiiiti(r. 
 
 chattel, (q) may, if ho or they see fit, (r) order that execn- 
 tion shall issue for the return of the chattel detained, without 
 giving the Defendant the option of retaining such chattel 
 upon pacing the valued assessed, («) and may order that 
 unlcsa tho Court or a Judge should otherwise direct, tbe 
 Sheriff shall Jiatrain the Defendant by all his lands and chat- 
 tels in the said Sheriff's County, till the Defendant renders 
 such chattel, (0 or at the option of the Plaintiff, the Court 
 or Judge may order the Sheriff to make of the Dofcndaut's 
 goods the value of such chattel ; (u) but the Plaintiff shall, 
 either by the same or by a separate Writ or Writs of Execu- 
 
 (y) This section is intended to deal with the ordinary finding of a jury wHcli 
 would in detinue bo tlio finding of so much for vahio and so much for dam- 
 ngos ; whereupon the judgment is that plaintiff do recover the chattel or the 
 sum assessed as the valnOj and also his damages and costs. In such a case a 
 dofondant liitherto, ihough he had tlie chattel sued for, might retain it, pay the 
 value, and ao obtain the chattel for himself, and might detain it from plaintiff, 
 though the latter set a much higher value upon it than the value sot upon it by 
 the jury. This was a hardship ; so recourse was had to that which is fair ,imi 
 reasonaole, namely, the investment of the courts of common law with a discretion 
 which the legislature thought should bo exercised. Therefore it is enacted in 
 cases where it would be unjust or improper that defendant should have the option 
 of paying the money or keeping the chattel, the court or a judge may make an 
 order taking away the defendant's option. But the act deals with a case of option 
 only, and if the value of the chattel bo not found by the jury now os formerly, 
 that case does not arise: Chilton v. Carrington tt al, 16 C. B. 730, Thus where at 
 the trial of an action of detinue for a lease deposited as security for £150, tlie 
 
 {mrties agreed that the jury should be discharged from finding the value of the 
 ease, and a judge made an order on the defendant to deliver the lease, the court 
 rescinded the order: Jb. Where plaintiff claims distinct parcels of goods, the 
 jury should assess the value of each separately : Sand/ord v. Alcoch, 10 M. it W, 
 689, Where the goods have been redelivered, the jury may confine their assess- 
 ment to the damages for the detention : Williamt v. Archer, 5 C. B. 318 ; Crosfjitld 
 £t ux, V, Such, 8 Ex. 159. Special dnmngo may bo recovered if laid in the declara- 
 tion : lb. Where the redelivery is after the commencement of the action, the defen- 
 dant should plead the redelivery in bar of the further maintenance, upon which the 
 plaintiff may confess the plea and obtain costs up to that time ; otherwise plaintiff 
 will obtain a verdict and the costs of proceeding to trial: Leader et al v. lihili, 
 10 C. B. N.S, 3tj9. Where a party places a dehnite price upon a chattel, the 
 court or a judge will not interfere in aid of that which is a mere demand in money: 
 Doicling v. Beijemann, 10 W. R. 674; s, c. 2 Johns, & II, 544, Formerly detinue 
 was the only form of action in which at law a chattel might be recovered in 
 specie ; but the like remedy may now be liad in an action of replevin : Con, Stat, 
 U, C, c. 29. 
 (r) Clearly discretionory. 
 («) See note q, supra. 
 
 {() The command contained in the writ of execution closely follows the laa- 
 guage of this section : see form of execution, R. G. pr. Sch. No. 67. 
 
 (w) Form of execution in this case : see R. G, pr. Sch, No. 58. 
 
301.] 
 
 REVIVAL OF JUDGMENTS. 
 
 407 
 
 tion to be issued in tbo ordinary manner, be entitled to have DanmRp*, 
 made of the Defendant's goods or lands, the damages, costs 
 and interest in such action, (i;) 19 Vie. o. 43, s. 201. 
 
 TUB HKVIV.Vri OP .TUD0MENT8 AND OTHER mOCEEDINGS BY AND 
 AGAINST PEUSONS NOT TAllTIES TO TUE HECOUU. («) 
 
 (v) In (k'tinuo for rnilway scrip which had boon dolirored up to the plnintiiF 
 under jiulfjo's order after action brouglit, Held the judge wiis womntod in 
 directing tlie jury at the trial tlint in estimating the uamngcs thoy niiglu taico 
 into consideration the difference in value of tlie scrip at the time of tho deti, mJ 
 and lit the time of its delivery to plaintiff under tlie judge's order : ]VilHfm* f. 
 An-kr, 6 C. li. 318. Upon tho trial of an action of detinue and trover for sh .roa 
 it was iirranged that the damages, £382, found by tho jury sliould be rcd<:ood to 
 n nominal amount upon tho defendant delivering up tho shares. Sharcb of a Iil<o 
 di'noinination and to an equal amount with those which wero tho subject of tho 
 action were afterwards tendered ; but the market value having greatly fallen, 
 piiiintitT souglit to enforce tlie verdict. Held that ho could not do so, that tho 
 bargain was binding upon him ; and that it was fuitilled on tlio part of the defen- 
 dant by tendering similar sliarcs to tlio^e which were the subject of the action : 
 ■hp-ctjw Oliver, 28 L. T. It'p. 231. In detinue for title deeds whore plaintiff 
 sliuwa iiimsclf clearly entitled to tlie deeds, but tho defendant intending to do 
 ii^iit, Ims given them up to anothei , tho damages should not as of course be the 
 vuli c of the land, but left to the decision of the jury under all the circumstances : 
 Uiijiwhh V. Waddell, 12 U. C. Q. B. 9. In detinue for a watch and chain, it np- 
 pearcd tlie defendant had obtained possession of the things by redeeming them 
 at the plaintiff's request from a person with wliom they were pledged, and that 
 defendant refused to give them up on payment of the money so advanced, clnini- 
 in>,' to retain them for a further sum duo to him by the plaintiff for board, and, 
 after verdict for plaintiff for the full value of the articles, it was shown on affida- 
 vits that before the trial defendant had obtained execution against plaintiff for 
 this sum in tho Division Court, under which the bailiff by plaintifTs direction had 
 seized this watch and chain in tho defendant's possession, and that to prevent 
 their being sold the plaintiff had procured some one to advance money on them, 
 a new trial was ordered without costs, unless the plaintiff would consent to 
 reduce his verdict to nominal damages, and that he should in any event pay 
 the costs of the application: Johnson v. Lamb, 13 U. C. Q. li. 51)8. Detinue held 
 not to lie against a clerk of a Division Court for goods which had come into 
 iiis possession under a warrant of ottachment, without at all events showing 
 fhp.t defendant before notion was mode acqunintcl with tho claim of tho plain- 
 litf, and alter demand refused to give up tho goods: Clark v. Orr, 11 U. C. 
 Q. n. 420. 
 
 (a) At common law a presumption arose from a plaintifTs delay beyond a j-car 
 to issne execution that his judgment either had been satisfied or from some 
 supervening cause ought not to be allowed to have its effect. After such delay 
 tlierefore, plaintiff was not allowed to issue execution as a matter of course, but 
 was driven to bring a new action on tho judgment. As this was found to be 
 unnecessarily vexatious and oppressive, the writ of icire facias, which had been 
 in use at common law for the purpose of executing judgment in real actions after 
 tlie delay of a year and a day, was adopted by the Statute Westm. II. : 13 Ed. I. 
 St. 1, c. 45. This was a less expensive and dilatory course for plaintiff and 
 c'lUftlly affording protection to defendant if ho had any cause to show wliy execu- 
 tion should not issue : Hiseocks daly. Kemp, 3 A. A E. 679, per Denman, C' J. The 
 scire fitcias was a writ founded on some matter of record, being as regards judg- 
 xoeut tlie original judgment obtained against defendant: Bac. Abr. i^ire J'acias, 
 
408 
 
 Tne COMMON LAW PROCEDURI ACT. 
 
 [8. 301 
 
 Fjiernllni) 
 without 
 
 Siirc t'ai'liu 
 or ruviviil. 
 
 301. (A) During the livoi of the parties to a judgment, 
 or of any of thorn, exeoatioD may bo issoed at any time withio 
 BIX years fVom the recovery of the judgment, (r) without a 
 revival thereof by (Scire Facias, or by Writ of llcvivor. 
 20 Vio. c. 57, 8. 10 ; 20 Vic. c. 58, a. 1 ; and see 22 Vic. c. 97. 
 
 A. If t\w i>nrtv wns provontod from suing out execution by a writ of error, oi* 
 by injunction, tlio yuar did not begin to run till the judgment Itolow \v»<t ntVinned 
 or the injunction di»colved : Howard v. ISU el al, 1 Sliow, 402 ; Winter v. I.hihllmund, 
 1 Str. 801 ; Mirhrll v. Cue et lut. 2 Hurr. 660. Tlie year wns if there was no Htny u 
 above ooui])utod from the day of signing judgment : Simfmoit v. Orny el iijt. linrnps, 
 197. The writ of error, when inDucd after the expiration of tlie year, revivMl the 
 judgment so tlmt if the plaintiff in error waa nonsuited or disuontiniird or the 
 judgment below wau aftirmed, execution might have issued without a neire /neia$ : 
 Jiellim* V. Hanford, Cro. Jae. 8U4. It was a rule that where a new i>erw>n who 
 was not a |Mirty to the judgment derived n benefit by or became cliargonl>le to 
 the execution, there should be a ncire fneiaa to make him a party to the iu(l<;nient: 
 Penoyer v. Brace, 1 Ld. Rayd. 245. IhuH the writ lay eitlier between the c)ri|r!nai 
 parties to' the judgment, where an execution had not been issued witliin n year 
 and a day from the signing of the judgment or between either of the original 
 
 [>arties and the representatives of the other or the representatives of both, when 
 t was sought to make parties to the judgment persons other than the orit,nnal 
 parties. The end attained by means of leire facial in any of these cases may now 
 D« attained by a much more simple and speedy mode of procedure. In this 
 respect the sections following are founded upon the first report of the Common 
 Law Commissioners, ss. 82-85 inclusive. 
 
 (b) Taken from Kng. Stat. 15 <& 16 Vic. cap. 76, s. 128. Founded upon the 
 first report of the Common Law Commissioners, s. 82. This section appliea to 
 judgments existing at the time the ac came into force : Boodle v. Davit, S Ex. 
 851. Where a juc^mont more than a year and a day old but less t'lan six years, 
 when the Eng. C. L. P. Act, 1852, came into operation, had not been revivud by 
 scire fac'mt, it was hold that execution eince the C. L. P. Act might issue without 
 any revival of such judgment : lb. 
 
 (c) A scire facia* to revive a judgment before this act was either between the 
 original parties to the suit or between new parties. The present section has 
 reference more particularly to the former. If plaintiff before this act omitted for 
 a year and a day to issue execution on his judgment, a scire facias became neces- 
 sary. But where execution had been taken out, though not executed witliin a 
 year after judgment, tlie scire facias was rendered unnecessary: Simjmn v. 
 Heath, 7 Dowl. P. C. 832 ; Oreenshields v. Hams, 9 M. «k W. 774 ; Franklin v. 
 Hodgkinson et al, 3 D. <Sc L. 664 ; Udmes v. Newlands, 5 Q. B. 634 ; but seo 
 Sewell V. Thompson, E. T. 2 Vic. MS. R. <& H. Dig. " Scire Facias," 5 ; WUnon 
 v. Ja7meson, E. T. 7 Vic. MS. Ih. \ Hall v. Boulton, 9 U. C. L. J. 213. If durinff 
 the six years limited by this act a writ of execution be sued out, returnea 
 and filed, the same consequences follow as if under the old practice a writ had 
 been sued out within a year: Jenkins v. Kerby et al, 2 U. C. L. J. N. S. 164. 
 The Commissioners were of opinion that the limit of a year and a day " was 
 not founded on good reason." They recommended that by analogy to the 
 Statute of Limitations in the case of simple contract debts, six years should 
 be the period within which execution might issue upon a judgment without 
 revival. The necessity for a scire facias or writ of revivor, as it is termed 
 in this act, (ss. 306-308) after six years have elopsed, may be waived by oral 
 agreement of the parties or consent of defendant : Hiscoeks «t al v. Kemp, H A. <b 
 
302.] 
 
 APPT.IOATION FOR REVIVAL OF JUDQMENT. 
 
 409 
 
 309- (^) In co'o >^ becomes necessary to revive a judg- Application 
 mtnt, either by roanon of lapno of time («) or of a change by ofjiuiKintnt 
 death or otherwise of the parties entitled, or liable to exccu- ti'','ii 'uilru- 
 lion, (/) the party alleging hims If to bo entitled to cxeou- "'"'"' 
 tioD ig) may either sac oat a Writ of Revivor in the form 
 hereinafter mentioned, (A) or apply to the Court or a Judge 
 far leave to enter a suggestion upon the roll, to the cfleot that 
 it manifestly appears to the Court that such party is entitled 
 to have execution of the judgment, and to issue execution 
 thereupon. (0 
 
 E, 67« ; Morgan v. Bwrgtu, 1 Dowl. N. S. 860. Execution idfiicd after the time 
 limited witliout a writ of revivor is voidable, not void : GoodtHle v. llmltitle, 
 9 Dowl. P. C. 1009 ; Blanelunay v. Burt et al, 4 Q. B. 707 ; McNally v. Stephna, 
 Tay. Rep. 263. 
 
 ((/) Talccn from Eng. Stat. 18 A 1ft Vic. cap. 70, 8. 129. Founded upon the first 
 report of tlie Common Law CoramisRionerR, aection 83. 
 
 if) )'. t. After the expiration of six years from the recovery of judgment : 
 
 mtioD 301. 
 
 (/) See note a to section 301. 
 
 {g) An application mads at chambers mnst be taken to he made on the pn 4 of 
 the person who profosses to apply, and in the character in wliicli l«e is des- 
 cribed, unless evidcnrc to the contrary be produced : S\ean v. Cleland, 2 U. 0. 
 L. J. 'i'M, Thus where application was made under this Hcclion by the widow 
 ind executrix of a deccnaed conusee, tltough a person apparently lier husband 
 wiu joined with her, and it was therefrom argued that she fmd married n second 
 time, but no affidavit to that effect was produced, tlie argument was held to bo of 
 no avail ; Jb. According to the Englisit authorities the party applying, if aa 
 exevutor, should show that probate has been taken out : V ogel et al v. Thompion, 
 1 Ex. 60. 
 
 (h) i. e. In section 305. 
 
 (i) Two courses are thus pointed out— either to apply for leave to enter a sug- 
 gestion that it manifestly appears, <tcR., or to issue a writ of revivor by means of 
 which tlie right to issue execution must be made to appear. Thniigii tlio former 
 be attempted, if unsuccessful the party applying will be still at liberty to try the 
 latter : section 304. II is not said whether or not the suge;cstion if allowed can 
 be troTcreed by defendant : see note i to section 184. From the use of tlie words 
 " it manifestly appears to the court that such party is entitled to have execution, 
 Ac.," it is presumed that on the application to enter the sugccstion the truth oi 
 the proposed suggestion will be trieu, and that unless it " manifestly appear" that 
 the part^- is entitled to issue execution the leave will not be given, and whea 
 given will not be open to a traverse : see section 804. If this be the proper con- 
 struttion of the section, it may bo found to differ from the corresponding section 
 85 of the Ejectment Act, which expressly provides for the trial of a euggeetion 
 after trial and before execution, wlien denied by the defendant. The writ if to 
 revive a judgment less than ten years old, shall be allowed without any rule or 
 order. If more than ten years old, then not without a rule or order. If more 
 than fifteen years old, not without a rule to show cause : section 309. The execu- 
 tors of au administrator are uot entitled to revive a judgment iQore tliau fifteen 
 
 fi'i.i 
 
 m 
 
 \ 'M 
 
410 
 
 THE COMMON LAW rROCEDURE ACT. [88.303,304. 
 
 'U. 
 
 
 !';! 
 
 h sM 
 
 :^^^ 
 
 
 Iftlu-Cmirt 
 bu ijutisliv<l. 
 
 Siicii iiiii)ii- 303. (^0 Such leave shall he granted by the Court upon 
 
 tioii to 1)1' by , , 1 1. X 1 
 
 suininoiis (.r a Tule to shcw cause, or by a Judge upon a summons [I) to 
 
 cau'iio." " '"'^ be served according to the practice of the Court, (m) or in 
 
 such other manner as the Court or Judge directs, (n) and 
 
 the rule or summons may be in the form (A) No. 9, or to the 
 
 like effect, (o) 19 Vic. c. 43, s. 203. 
 
 304. ip) In case it manifestly appears upon such appl;. 
 cation, that the party making the same is entitled to execu- 
 tion, (a) the Court or.' Judge (r) shall allow such suggestion as 
 aforesaid to be entered ir the form (A) No. 10, or to the like 
 effect, («) and execution to issue thereupon, (<) and shall 
 order whether or not the costs of such application shall be 
 And if not. paid to the party making the same ; (m) and in case it does 
 
 years old by entering a suggestion under this section : Croft v. Foulkejs, 30 L. T. 
 Rep. 241. An A, j)er Cromi)ton, J.^ "The act does not allow those who have an 
 equitable interest only to come in ;" /'>. 
 
 {k) Taken from Eng. Stat. 15 & 16 Vic. cap. T6, s. 129. 
 
 {I) The concurrent jurisdiction of the court and a judge in chambers is here 
 remarkably clear : " By the court upon a rule to show cause or by a judye upon 
 a summons," &c. 
 
 (m) The practice to which reforcnce is made is not free from doubt. It rany 
 be either the present practice as to rules and summonses generally, or rules and 
 snmmonsps to show cause wliy a party proceeding by aci. fa. should not have 
 judgment. The latter seems to be intended. Personal service is not necessary if 
 it can be shown that defendant is purposely avoiding service : Dixon v. ThoroU, 
 9 Dowl. P. C. 827, and the service ma}', it would seem, be made on o defend- 
 ant though residing out of the jurisdiction of the court: Stockport v. IJaKkins, 
 1 D. & L. 204. 
 
 (n) This provision will enable the party taking proceedings to continue his 
 proceedings, though defendant be concealed within the jurisdiction, or be resident 
 without the same. Thus, where it was shown that defendant, having houses in 
 Liverpool, had left England for America, notice of the sale stuck up in tlic office 
 of the court and °"rved on defendant's tenants in Liverpool, was directed to be 
 sufficient service of the rule on defendant: Macdonald v. Maclarcn, II M. li; 
 W. 465. 
 
 (o) The forms, whenever they can be followed, should be adopted. The use of 
 the words " to the like effect " is intended to admit of a departure from necessity, 
 
 (/>) Taken from En^. Stat. 15 «t 16 Vic. c. T6, s. 130. 
 
 (}) The application to enforce a judgment more than twenty years old must 
 atato circumstances to shew a prima facie right on the part of the applicant: 
 Lovelets v. Richardson, 4 W. U. 617. 
 
 (r) See note if to section 48. 
 
 (s) See note o to section 303, supra. 
 
 (<) As to executions generally: see ss. 238, 239. 
 
 (u) Qu. If the order be silent as to costs, will the party applying be deprived 
 of costs? The general rule is that in sucii case each party shall pay his own 
 costs. 
 
?, 305.] 
 
 WRITS OF REVIVOR. 
 
 411 
 
 sot manifestly so appear, the Court or Judge sball discharge 
 the rule or dismiss the summons with or without costs; (r) 
 but in the last mentioned case, the party making the applica- 
 tion shall be at liberty to proceed by Writ of Revivor or 
 action upon the Judgment, (w) 19 Vic. c. 43, s. 204. 
 
 305. («) The Writ of Revivor (l) shall be directed to Writ of Re- 
 
 HI 1 I -111 viviir ami 
 
 the party called upon to shew cause why execution should i.i.i.iM.iiugs 
 not be awarded, (r) and shall bear teste on the day it is 
 issued, (d) and after reciting the reason why such writ lias 
 become necessary, (e) it shall call upon the i-arty to whom it 
 is directed, to appear within ten days after service there- 
 of (/) in the Court out of which it issues, (y) to shew cause 
 
 (f) See note u to this section. 
 
 (if) A party suing upon a judjjment of the court will not be entitled to any 
 costs unless the court otherwise order: Rection S23 of tLIa act. 
 
 (a) Taken from Eng. Stat. 15 <t 16 Vic. cap. ^6, s. I. "J I. Founded upon the 
 first report of the Common Law Commissioners, sections 84, 85. 
 
 (6) Tills is the name of a new writ in many respects partaking of the nature of 
 a scire facias, ^ ich as hitherto used. It is indeed the ««. fi. under a new name, 
 or more properly an improved sci. fa. But though the old writ of scire facias 
 is to some extent superseded, it io not abolished: see section 311. A sci. fa. on 
 n jiicl;,'nieiit has been held to be, not a mere continuation of a former suit, but the 
 origin of a new right ; Farrell v. Gleeson et al, 11 CL dfc Fm. 702. The writ must be 
 sued out of the court in which the judgment is entered : Com. Dig. Pleader, 3 L. 3. 
 The writ is in the nature of an action, because the defendant may plead to it ; 
 2 Wnis. Saund. 7, note 4. As to to the pleadings : see note n to section 3i)7. 
 
 (f) This is a new feature, the sci. fa. having been always directed to the sheriff, 
 whose duty it was to make known the writ to defendant. Uence its name, 
 
 (d) Same as writ of summons : section 24, 
 
 (f) Tiio writ should follow the judgment : Panton t. Hall, 2 Snlk. 508. The 
 juclgnieiit should be recited: Prtalon v. Perton, Cio. Eliz. 817. It is sutHcient to 
 sit out the recuperavit in general terms: Foiclrr -i al y. Rickerbi/ et al. 9 Dowl. 
 P. C. 082. If the writ omit to recite why it l>eciinie necessary, it may be set 
 nside as irregular: Gallusia v. Butler, 3 U. C. L.J. 108. A variance from the 
 judijment, as, for example, in the sum recov.red is eTTi>r, if it appear on the face 
 of tlio record: KMourn v. Trot, Cri\ Elij. 655; Mara v. Qninn, G T. R. 5. A 
 writ of ii judgment of assets quando acciderint would be bad if it pray c.vecu- 
 tion n^ii'.nst assets generally : Mara v. Qumn, *'> T. R. I ; see also Smith et al v. 
 Tateham et al, 2 Ex. 205. The writ may be amendtd so as to make it corres- 
 pniul with the record: Brasivell v. Jeco, 9 EaM. 316; and this even after a plea 
 of iiul tiel record: Parkins v. Petit, 2 B. <fe P. 275; Holland v. Phillipps, lu A. 
 <t E. 149; or may be quashed on the application of plaintitf: Oliverson it al v. 
 Latour, 7 Dowl. P. C. 6U6 ; but only on payment of costs, if defendant has ap- 
 pear 'd : R. G. pr. 59. 
 
 (/) Same ds summons: see Schedule A, "So. 1. 
 
 ig) Which murt be the court in which the origiMd action was brought : 2 Wms. 
 Sauud. 72 a; sec also R. G. pr. 60. 
 
 
 ' 
 
 
 ■ ': A ■:.■■ 
 
 
 ■ 'W 
 
 :' ' j'l^H 
 
 ^'''.'4|'N^I 
 
 (lii^ 
 
 1 
 I. 
 
412 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [88.306,307. 
 
 * 
 
 mm 
 
 
 f^jBJRi 
 
 i 
 
 ^wl 
 
 
 im^l 
 
 ^ 
 
 cIeA 
 
 4 
 
 i" 
 
 Form of 
 Writ. 
 
 Venue in 
 such cases. 
 
 \rhy the party at vhose instaDce it is so issued should not 
 have execution against the party to whom such writ U 
 directed, and it shall give notice that in default of appear. 
 ance, the party who issues such writ may proceed to execu- 
 tion. (A) 19 Vic. c. 4y, 8, 205. 
 
 300. (0 Such writ may be in the form (A) No. 11, or 
 to the like effect, (J) and may be sued out and served ia any 
 County, and otherwise proceeded upon, whether in Term or 
 Vacation, in the same manner as a Writ or Summons, {k) 
 19 Vic. c. 43, s. 205. 
 
 307. (0 The venue in a declaration upon such Writ 
 may be laid in the County in which the Writ has been sued 
 out; and the pleadings and proceedings thereupon, and 
 the rights of the parties respectively to costs, shall be the 
 same as in an ordinary action, (n) 19 Vio. c. 43, s. 205. 
 
 (A) The object of the writ is to enforce a judgment by the issue of execution 
 after the judgment has for a certain period lain dormant: see note a to section 
 301. It is for the party to whom the writ is directed to show cause why the 
 judgment should not oe enforced against him. This he is enabled to do by appear- 
 ing and pleading his defence. If ne neglect to appear judgment may be signed 
 against nim for default of appearance. Judgment so signed will carry costs: 
 section .320. It is ordered that no judgment shall be signed for nonappearance 
 to a tci. fa. without leave unless the defendant has been summoned (R. G. pr. 
 61), but the judgment may be signed by leave after eight (?ays from the return 
 of one aei. fa. : lb, . 
 
 (i) Taken from Eng. SUt. 16 «t 16 Vic. cap. "76, s. 131. 
 
 (/) The writ may be amended: see note e to section 305. A second writ 
 would seem to be necessary if, after judgment obtained on the first, six years be 
 allowed to elapse without execution : Walksr v. Thelluson, 1 Dowi, N.S. 578. 
 
 {k) Qu. Is it in the power of the pltuntiff in the writ of revivor to issue either 
 a capias : see Agatsiz el ttx. y. Palmer, 6 M. <b G. 697. 
 
 (Z) Taken from Eng. Stat 16 & 16 Vic. cap. 16, s. 131. 
 
 (n) No party can plead matters which might have been set up as a defence to 
 the original action: Alleni v. Andreai, Cro. Eliz. 283; MiddUton v. Hill, lb. 
 688; West >. Sulton, 1 Salk. 2; Wheatley v. Lane, 1 Wms. Saund. 219 c; BradUy 
 et al V. Eyre et al, 11 M. i- W. 461 ; Boltnet v. Netelandt, 6 Q. B. 367 ; Philipson 
 V. Earl of Egremont, 6 Q. B. 687 ; nor can a party who did not avail himself of 
 the opportunity of pleading in bar to the original action afterrarda so plead to 
 the writ of revivor founded upon the judgment obtained in the original action: 
 Skelton v. Hawling, 1 Wils. 268 ; Boek v. Leigkton, 1 Salk. 309 ; Earle v. Ilinton, 
 a Strange, 732. But a defendant may plead anything done under the original judg- 
 ment that exonerates him from liability: Clerk y. Withert, ^ Lord Bayd. 1075; 
 Holmes v. Newlands, 6 Q. B. 370 ; and there may be a plea of fraud to the original 
 judgment: Dodgson v. Scott, 2 Ex. 467; Thomas v. Williams, 3 Dowl. P. C. 655; 
 Bosanquet v. Oraham, 6 Q. B. 601, n. 
 
 
88.308,309.] 
 
 WRITS OF REVIVOR. 
 
 413 
 
 808. (p) Notice in Writing to the Plaintiff, his Attorney Notice to be 
 or agent, shall be sufficient appearance to a Writ of Revi- appearauce. 
 \p) 19 Vic. c. 43, s. 205. 
 
 Tor, 
 
 of Revivor. 
 
 309. (q) A "Writ of Revivor to revive a judgment (r) Age of judg- 
 less than ten years old, shall be allowed without any rule ov pecta writs 
 order ; («) but if more than ten years old, then not without a 
 rule of Court or Judge's Order ; (/) and if more than tifieeo 
 years old, not without a rule to shew cause, (u) 19 T 
 43, s. 207. 
 
 n 
 
 ic. c. 
 
 (o) Taken from Eng, Stat, ir & 16 Vic. cap. 76, 8. 133. 
 
 Ip) This provision as to appearance by notice is taken from section 133 of Eng. 
 C. L. P. Act, IS62, and is repeated in R. G. pr. 62. The notice, if by attorney, may 
 be in this form : Title of court and eauie — Talie notice, that I appear for the 
 defendant to the writ of revivor issued in this cause. 
 
 (j) Taken from Eng. Stat. 16 »S; 16 Vic. cap. 76, s. 134. 
 
 (r) Tliis section provides for the revival of three descriptions of judgments : — 
 
 F^rst. Those more th.in six but less than ten years old, as to which the writ 
 may issue without any rule or order. 
 
 Second. Those more thiin ten but less than fifteen years old, as to tvuich a rule 
 of court or judge's order may be obtained ex parte. 
 
 Third. Those more than fifteen years old, as to which a rule to show cause 
 must be obtained. 
 
 Whether a judgment move than twenty years old can be ."evived is a question: 
 Tilliams v. Welch et al, S D. <t L. 565 ; Con. Siiit. U. C. cap. 78, s. 7. Supposing a 
 rule to exist tliat it. cannot, payment of interest within twenty years would take 
 the case out of such a rule : Williams v. Welch et al. C D. A L. 56, per Williams, J. 
 After twenty years hate elapsed the Statute of Limitations prima facie applies : 
 Lovsless V. Ricliardaoii et al, 27 L. T. Rep. 192; s. c. 2 Jur. N. S. 716 ; s. c. 4 W. 
 K. 617. 
 
 (») Upon filing a precipe, it is presumed. 
 
 (0 The words " rule of court or judge's ordei>" seem to exclude the inference 
 that the rule in this case might be a aide bar rule. 
 
 (u) To obtain a rule under this provision, without doubt an affidavit will be 
 required. It should show a prima facie ri^ht to that which is asked: Loveless v. 
 liicharikon et al, 27 L. T. Rep. 192. It should be that of plaintiff himself, if he 
 be the party applying or that of the person who was his attorney at the time the 
 judgment was obtained : ?%« Duke of Norfolk v. Leicester, 1 M. A W. 204. If the 
 party applying be the representative of the original plaintiff an afiidavit by the 
 attorney seeking to enforce the judgment, though not the attorney of the original 
 plaintiff, may be received : Smith v. Mee, 1 D. <fe L. 907. And aernble — the rule 
 that a matter cannot be agitated twice docs not apply to the case of an applica- 
 tion to issue a scire facias upon fresh materials : Dodgson v. Scott, 2 Ex. 4fl7. The 
 omission to sue out t^ scire facias when made necessary by this section would be 
 a defect so material that it might be taken advantage of at any time : see Oood- 
 title v. Badtitle, 9 Dowl. P. C. 1009. The judgment cannot De impeached on 
 showing cause against the rnlc, but a cross motion to set aside the judgment 
 
 5 K t.4' 
 
 
 "ll 
 
u 
 
 u 
 
 ^i , 
 
 I', f 
 
 
 m 
 
 i'Vi 
 
 
 414 
 
 Against 
 •'xecutors as 
 to assets iu 
 futuro. 
 
 Certain 
 Writs of 
 Scire Facias 
 
 THE COMMON LAW PROCEDURE ACT. [S8. 310,811, 
 
 310. (v) ProceediDgs against Executors upon a Judg. 
 ment of assets in futuro (w) may be had and taken in the 
 manner herein provided as to Writs of Kevivor. (or) 19 Vij 
 c. 43, s. 216. 
 
 311. (a) All "Writs of Scire Facias against bail on a 
 recognizance, (U) or against members of a Joint Stock Con- 
 
 should be made : Thomas v. Williams, 3 Dowl. P. C. 655. Substitutional service 
 of the rule allowed where the defendant was out of the country, but had property 
 in the eountry at the time of the granting of the rule : Macdonald v. Maciann 
 11 M. & W. 466. 
 
 {v) Taken from Eng, Stat. 17 &, 18 Vic. cap. 125, s. 91. 
 
 (w) In an action against an executor if he plead plene administravit, it is for 
 plaintiff, if the plea be sufficient, either to admit or deny it. If he admit it !ie 
 takes judgment and prays that the debt may be levied of such assets as may 
 " afterwards " come to the hands of the executor to be administered : Noell tl d 
 V. Nelson, 2 Wms. Saunders, 219, n. 2. But if plaintiff deny the plea, and the 
 issue be found against him, ho cannot have this form of judgment : lb. 217, ii. 1. 
 Supposing plaintiff to admit the plea and to enter up judgment quando accklemt, if 
 assets do come to the hands of the executor, plaintiff may proceed undar this section 
 by writ of revivor. The proof of the executor having received assets is always 
 confined to a period subsequent to the judgment: Taylor v. Holtnan el al, cited Bull. 
 N. P. 169, a. It is right that such should oe the rule of law, for if the creditor were 
 permitted to litigate a second time, that which has been once settled between 
 the parties either by verdict or admission, an executor would be harrassed and 
 involved in infinite expense and litigation: 3fara\. Quin, 6 T. R. &, per Lori 
 Kcnyon, C. J. However, it was observed by Lord Kenyon, that it occurred to 
 him on looking into the precedents that the ordinary mode of entering up a 
 judgment of assets quando accidcrint was not correct, for as on the issue of plm 
 administravit, no evidence could be given of assets after the writ sued out, and 
 if the judgment were to affect assets received after the judgment, there was an 
 interval between the commencement of the action and the judgment, in which, if 
 the executor received any assets, they could not be taken at all. Therefore it 
 was his opinion that the judgment should be so entered up as to reach all assets 
 received by the executor after the time of suing out the writ. Whereupon Mr, 
 Justice Ashurst observed that as the plea of plene administravit was that " the 
 executor hath not nor had at the time of the suing out of the writ, nor at any 
 time since, any assets, &c.," he saw no objection to the plaintiffs replying to the 
 latter part of the plea, " that the executor had assets since, dv.," if the facts were so: 
 lb, 10. The judgment of assets quando acciderint embraces not only the assets 
 received by the executor after that judgment is signed, but also such assets na 
 came into or ought to be in his hands between the issuing of the writ or llie plea 
 and the judgment, in the course of administration : Smith et al v. Tateham el al, 
 2 Ex. 206. If upon the writ of revivor assets be found in part, plaintiff may have 
 judgment to recover that part instanter, and the residue of the demand in/tUuro: 
 Noel et al v. Nelson, 2 Wms. Saund. 226. 
 
 (x) All the proceedings necessary under the old practice will be found reported 
 at length in Aoel et al v. Nelson, 2 Wms. Saund. 214. 
 
 (a) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 132. This sectioii is bo 
 framed as to recognise a distinction between writs of revivor and scire facias. 
 
 (6) See Foster on " Scire Facias," 803 ; also R. G. pr. 60. 
 
312.] 
 
 WRITS OP REVIVOR. 
 
 pany or other body, or upon a Judgment recorded against a 
 public officer or other person sued as representing such Com. 
 pany or body, or against such Company or body itself, (c) 
 and all such Writs by or against a husband to have execution 
 of a Judgment for or against a wife, (cQ or for restitution 
 after a reversal on Error or Appeal, (e) or upon a suggestion 
 of further breaches after Judgment, or for any penal sum 
 pursuant to the Statute passed in the Session boldcn in the 
 eighth and ninth years of the reign of King William the 
 Third, intituled An Act for the belter preventing frivolous 
 and vexatious suits, (/) shall be tested, directed and pro- 
 ceeded upon in like manner as Writs of Revivor, (g) 19 Vic. 
 c, 43, s. 206. 
 
 Sli. (h) In case of the death of any one or more of the 
 Defendants in any action, against wh^m a joint Judgment 
 has been entered, in any Court of Record, the Plain*'*^ or 
 Plaintiffs, or the survivor or survivors of them, or the execu- 
 tor or administrator of a sole Plaintiff or of the survivor, may 
 proceed by Writ of Revivor against the representatives of 
 of such Defendant or Defendants, (i) or by an application to 
 
 415 
 
 to he pro- 
 cociU'd upon 
 in like iiiau- 
 iiiT 118 Writs 
 of iievivur. 
 
 Proceedings 
 by Writ of 
 Uevivor 
 njjuliist tlio 
 rt'prescnta- 
 tives of de- 
 eeaiied joint 
 contractors 
 authurizud. 
 
 (f) As to scire faciat ngninst members of a public company: see Clowes et al v, 
 BnUell, 11 M. <fe W,461 ; Scott v. The Uxbridge and Rickmansworth, R. Co. L. R. 
 1 C. P. 596 ; Ilfraconbf R. Co. v. The Devon and Somerset R. Co. L, R. 2 C. P. 15 ; 
 Williams v. Sidmouth Railway and Harbour Co. L. R. 2 Ex. 284 ; Rigby et al v. 
 Dublin Trunk Connecting R. Co. L. R. 2 C. P. 586 ; Shrimpton v. The Sidmouth R. 
 Co. L. R. 3 C. P. 80. 
 
 ((/) See Foster on Scire Facias, 166. 
 
 (c) See Foster on Scire Facias, 64. 
 
 (/) See Foster on Scire Facias, 31 ; also section 148 of this act, and notes. 
 
 [g) Reference is further made in Eng. C. L. P. Act, 1852, s. 132. to two modes 
 of procedure by scire facias, neither of which is used in ih'^ Province, viz. : 1. 
 Scire facias ad audiendum errores. 2. Sci, fa. for recovery of land under an 
 elegit. There are other proceedings by sci. fa. to which neither the Eng. C. L. P. 
 Act nor ours applies, such as scire facias to repeal letters patent : Foster on Sciro 
 Facias, 236; on bonds to the crown: lb. SSO; and on inquests of office to recover 
 simple contract debts dno tf> the crown: lb. 341. But for these provision is to 
 some extent mado by R, G. pr. 63, and, except as to provisions made by the new 
 rules, it is presumed that the old rules as to crown proceedings will apply. 
 
 (A) Taken from our "repealed Stat. 1 Vic. c. 7, s. 2, which was peculiar to this 
 Province. 
 
 (0 In case any one or more joint contractors, obligors or partners die, the per- 
 son interested in the contract, obligation or promise entered into by such joint 
 
 
I' 
 
 1> 
 
 416 
 
 Llmltfttlon 
 of liability 
 of Stock- 
 holders in 
 Clinrtert'J 
 Banks or In- 
 oori)or(ited 
 Cuinpiinies. 
 
 TttE COMMON LAW rROOEDURE ACT. 
 
 [s. 313. 
 
 the Court or a Judge as hereinbefore provided, notwithstand. 
 ing there may be another Defendant still living, and against 
 whom the Judgment may be in force; (./) but the property 
 and effects of stockholders in Chartered Banks, or the roen. 
 bcrs of other Incorporated Companies, shall not be liable to a 
 greater extent than they would have been if this Section had 
 not been passed, (i) 1 Vic. o. 7, s. 2. 
 
 PROVISIONS WITH RESPECT TO COSTS. fIJ 
 
 
 i^sr 
 
 contractors, obligors or portners, may pi'oceed by action against the represents, 
 tives of the deceased contractor, obligor or partner, in the same manner as if the 
 contract, obligation or promise had been joint and several : Con. Stat. U. C. cap, 
 •78, 3. 6 ; and this notwithstanding there may be another person liable under snch 
 contract, obligation or promise still living, and an action pending against such 
 person : lb. This section is in principle the same as exiended to judgments: sec 
 Oilmort v. Crooks et al, H. T, 6 Vic. MS. R. «fe H. Dig. " Executoi-," i. 11. 
 
 (y) See section 302 and notes thereto. 
 
 (ft) This reservation was also contained in the repealed section 2 of 1 Vic, 
 cap. V. 
 
 (l) There was no such thing as costs at common law «" nomine ; but they were 
 generally included in the damages given by the jury. This, however, being dis- 
 cretionary and inadequate, the legislature in 1278 put a plaintiff's right to costs 
 upon a surer basis. It was in that year that the statute of Gloucester was passed. 
 It refers to certain original writs now obsolete, and enacts that " dcmandont may 
 recover against the tenant the costs of his writ purchased together with the dam- 
 ages," and tliat the act " shall hold place in all cases where a party is to recover 
 damages:" 6 Edw. I. cap. 1. Though the statute gives the costs of the "writ," 
 it has been construed as extending to the costs of suit generally. But as by it 
 costs were made recoverable in all cases indiscriminately, irrespective of the 
 quantum of damages, however small, so long as some damages were recovered, 
 plaintiffs having trifling demands forsook the inferior to bring their actions ia the 
 superior courts, To preven \ this abuse the legislature enacted that " if upon any 
 action personal to be brought in any of her majesty's courts at Westminster, not 
 being for any title or interest of lands, nor concerning the freehold or inheritance 
 of lands, nor for any battery, it shall appear to the judges of the same court, und 
 BO signified or set down by the justices before whom the eame shall be tried, that 
 the debt or damages to be recovered therein in the same court shall not amount 
 to forty shillings or above, that in every such case the judge and justices before 
 whom any such action shall be pursued shall not award for costs to the party 
 plaintiff any greater or more costs than the sum of the debt or damages so recov- 
 ered shall amount unto, but less at their discretions :" 4!i Eliz. cap. 6, s. 2. The 
 effect of this statute is to authorize a judge's certificate, the consequence of which 
 is plainly to deprive plaintiff of costs beyond the amount of his verclict. In 1623 
 a statute was passed which operated differently. It enacts that " in all actions 
 uprn *^e cuse for slanderous words to be sued or prosecuted by any person or 
 J :.„ • «fec, T the jury upon the trial of the issue in such action, or tne jury that 
 >'h:->li . i..~ of the damages, do find or assess the damages under forty sliillings, 
 ,' i» i V. . "atiff or plaintiffs in such action shall have and recover only so much 
 jo:'t3 H.. ih'' damages so given or assessed amount unto, without any furtlier 
 l»r;.' J • • ''.a same:" 21 Jac. I. cap. 16, s. 6. The operation of this statute 
 dvjffR'i: ' «pon any certificate, but upon the mere finding of the jury. Though 
 
313.] 
 
 COSTS CENERATiLT. 
 
 417 
 
 313. Iq cases not otherwise provided for by Statute or wiien costs 
 Rule of Court, the allowance of costs to cither party in civil 1" ^^ regu-'' 
 
 under the statute of Elizabeth plaintiff can have no more costs than damages, if 
 the damages be under forty shillings, in case the judjje certify, by a still later 
 statute, if tlie damages be under forty shilling plaintiff shall have no more 
 costs than damages unleaa the judge do certify. II is enacted that "in all 
 actions of trespass, assault, and battery, and other personal actions wherein 
 the judge at the trial of the cause shall not find ana certify under his hand, 
 upon the back of the record, that an assault and battery was sufficiently proved 
 by tlie plaintiff against the defendant, or that the freehold or title of the land 
 mentioned in the plaintiff's declaration was chiefly in question, the plaintiff 
 in such action, in case the jury shall find the damages to be under the value 
 of forty sliillings, shall not recover or obtain more costs of suit than the dam- 
 ages so found shall amount unto:" 22 & 23 Car. II. st. 2, cap. 9. This statute, 
 nutwithstanding the use of the words " other personal actions," was construed 
 ns extending only to actions of trespass quare clausam freglt and assault and 
 hatttry. Afterwards, in 1697, " for the preventing of wilful and malicious 
 trespasses," it was enocted that "in all actions of trespass to be commenced, 
 dtc. in any of his majesty's courts of record, «fec. wherein at the trial of the 
 cause it shall appear and be certified by the judge, under his hand upon the 
 hack of the record, that the trespass upon which any defendant shall be found 
 guilty was wilful and malicious, tlie plamtiff shall recover, not only his damages, 
 but his full costs of suit:" 8 «t 9 Wm. III. cap. 11, s. 4. Such were the chief 
 features of the English law as to costs of plaintiffs when by the legislature of this 
 Province it was expressly declared that " the allowance of costs to either party, 
 plaintiff or defendant in all civil suits, «fcc. to be regulated by the statutes and 
 usages which direct the payment of costs by the laws of England:" 2 Geo. IV. 
 cap. 1, 8. 38. Subsequently the legislature of this Province, in furtherance of the 
 intention and spirit of the English statutes, enacted that in any suit brought in a, 
 superior court of common law of the proper competence of a county court, no 
 more than county court costs should be taxed against defendant: 8 Vic. cap. 18, 
 s. 59 ; and with respect to suits of the proper competence of a division court a 
 similar provision was passed: 13 & 14 Vic. cap. 53, s. 78. Still later the Provin- 
 cial legislature followed the example of the English legislature in extending the 
 principle of the English statute of Charles to oil octions of trespass. This was 
 done by Prov. Stat. 16 Vic. cap. 175, s. 26, taken from Eug. Stat. 3 & 4 Vic. cap. 
 24, s. 2. 
 
 Until the statute of 23 Hen. VIII, cap. 15, a defendant was not entitled to costs 
 in any case except on a writ of right of ward maliciously brought, which costs 
 were given by the statute of Marlbridge. But even from the time of Hen. VIII. 
 to the reign of James I. a defendant was entitled to costs only in certain specified 
 actions. During the reign of James it was enacted " that if any person or per- 
 sons, <tc. shall commence, Ac. any action, <fec. wherein the plaintiff or demandant 
 might have costs (if in case judgment should be given for nim), and the plaintiff 
 or plaintiffs, demandant or demandants, in any such action, Ac. after appearance 
 of the defendant or defendants, be nonsuited, or that any verdict happen to pass 
 by any lawful trial against the plaintiff, Ac. In any such action, Ac. that then the 
 defendant, Ac. In every such action, Ac, shall have judgment to recover his costs 
 against every such plaintiff," Ac. : 4 Jac. I. cap, 3, s, 2, This, with other statutes 
 pving costs to defendants in case of discontinuance, nonsuit and demurrer, noticed 
 in other parts of this work and not necessary to be here repeated, were introduced 
 into this Province in like manner and at the same time as the statutes givins; 
 costs to plaintiffs. In 1830 the legislature of this Province passed a statute enti- 
 tling a defendant pleading a set-off and proving a greater one than nlaintiff's 
 demand, to recover a verdict "besides his costs and charges:" II Geo'. IV. cap. 
 27 
 
418 
 
 El A 
 
 •I'i 
 
 
 
 - f 1 
 
 If- 
 
 
 
 latcd by tho 
 Law (if 
 Euig'laiid. 
 
 Costs on 
 Writs under 
 tliiM Act tn 
 be tts liereto- 
 fore until 
 otlifi-wiso 
 ordered. 
 
 Mileage. 
 
 Party nl- 
 
 THE COMMON LAW PROCEDURE ACT, [s. 314-316 
 
 suits and penal actions, shall be regulated by the Laws of 
 England, (m) 2 Geo. IV. c. 1, s. 88 ; 19 Vic. c. 43, s. 311. 
 
 314. (n) Until otherwise ordered under the provisions of 
 this Act, (o) the costs of Writs issued and of all other pro- 
 ceedings under the authority of this Act, shall be and remaio 
 the same as at present established, (p) 
 
 31«S. (j) No mileage shall be taxed or allowed for the 
 service of any Writ, paper or proceeding, (r) without an affi- 
 davit being made and produced to the proper taxing officer 
 stating the sum actually disbursed and paid for such mileage 
 and the name of the party to whom such payment has been 
 made. («) 19 Vic. c. 90, s. 18. 
 
 316. (0 In case judgment be given either for or against 
 
 utter jmig- a Plaintiff or Demandant, or for or against a Defendant or 
 
 ment on dc- mi. j • • ^ ' ^-i 
 
 munur, &c. Tenant, upon any demurrer joined in any action whatever, 
 the party in whose favour the Judgment is given shall also 
 
 5, s. 1. This completes the sketch intended of the principal statutes which give 
 to plaintiffs and defendants costs of suit. 
 
 (w») This is in effect a reenactment of our old Stat. 2 Geo. IV. cap. 1, s. 3S, 
 mentioned in the preceding note. 
 
 (n) This is a mere temporary provision. 
 
 (o) The judges of the superior courts of law, or any three of them yof whom 
 one of the chiefjustices shall be one), may from time to time frame tables of costs 
 for the county courts. 
 
 (p) See note I to section 813. 
 
 (q) Taken from County Court P. Act, 1867, 19 <fe 20 Vic. cap. 90, s. 18. 
 
 (r) Paper or proceeding embodies rules, orders, notices, <fec. 
 
 («) In the taxation of costs no fees shall be allowed for mileage or service of 
 writs of summons, or other mesne process, unless served and sworn in the affida- 
 vit of service to have been served by the sheriff, his deputy or bailiff, except ia 
 the cases as provided in the eighteenth section of this act : section 277. Taxing 
 oflBcers should not allow any items for which there are not proper vouchers, and 
 these vouchers (except briefs, <fcc.) shouled be filed : Wilson v. moulds, 4 Prac. R. 
 101. On revision of a taxation had by deputy clerks of the crown, the master is 
 not to allow any items which are not verified by vouchers : lb. Where two wit- 
 nesses were brought from abroad to prove a particular fact, but were not put ia 
 the box because the fact was admitted in cross-examination of a witness on the 
 other side, the proper officer was directed to allow their expenses : The Biddick, 
 19 L, T. N.S. 706. Where a party shows cause in the first instance, he will not, 
 as a rule, be entitled to costs: Vitlesboisnet v. Tobin et al, lb. 693. 
 
 (<) Taken from repealed Stat. 7 Wm. IV. cap. 3, s. 26, wliich was a transcript 
 of Eng. Stat. 3 «t 4 Wm. IV. cap. 42. s. 34. 
 
S.31T] 
 
 COSTS AFTER NOLLE PROSIQUI. 
 
 419 
 
 hiive Judgflieiit to recover his costs in ihut bt-half. («) 
 ;Wia. IV. c. 3, 8. 20. 
 
 317t («) In case several persons bo mnde Defendants in Deftniiants 
 any personal action, and a JSolle Prosequi be entered as to nlsts aftt'r 
 any one or more of them, or in case upon the trial of such «,w,,'„;, un- 
 action, a verdict passes for him or them, every such person juiIko'clt- 
 shall have judgment for and may recover his reasonable *^"""'" 
 costs, (J)) unless, in the case of a trial, the Judge before 
 whom the trial is had, certifies upon the record under his 
 
 (k) In general the successful party on a demurrer is now entitled to his costs, 
 wlmtever may bo the ultimate determination of the cause: lientlev v. Dawen, 
 10 Ex. 347; Taiflor v. Rolf et al, 6 Q. B. 387; Kinloch v. JIall, 26* U. C. Q. B, 
 11)4; but see Macmartin v. Thompson, lb. 834; Burdon v. Flower, 7 Dowl. P. C. 
 "S6 ; though the party succeeding be not entitled to damages : Gregory v. Dvke 
 of Brunswick et al, 8 C. B. 481; Bentley v. Datees, 10 Ex. 847. It seems that the 
 c .5t3 of a demurrer to a plea in abatement are not witliin the operation of the 
 statute: Thomas v. Lloyd, 1 Salk. 194; and at all events cannot be recovered till 
 the dutermination of the suit: Richmond et al v. Campbell, IT. T. 2 Vic. JUS. 11. it 
 II. Dig. "Costs," V. 1. One of several defendants succeeding on a demurrer is 
 entitled to his costs: Clarke v. Durham et al, T. T. 4 <fe 6 Vic. P. C. JUS R. & H. 
 Di^. " Costs," v. 2. A declaration contained two counts — one for the seduction 
 of the plaintiff's daughter and the other for necessaries supplied to the child. 
 Plea of not guilty to the first count and demurrer to the second. Verdict for 
 the plaintiff, live shillings. Judgment afterwards given for plaintiff on tiie 
 (leniuirer; whereupon plaintiff remitted on the roll all the damages, without 
 excepting costs under the second count, and signed judgment for the five shillings 
 and full costs taxed. Held that plaintiff was entitled to the costs of the demurrer 
 to the second count, although it would have been the more correct form to have 
 excepted the costs from the remittitur: Townsend v. Sterling, 4 Prac. it. 125. 
 
 ia) Taken from repealed Stat. U. C. 7 Wro. IV. cap, 3, s. 24, which was a tran- 
 script of Eng. Stat. 3 <fe 4 Wm. IV. cap. 42, s. 32. 
 
 (J) AVhere there are several defendants and a verdict passes against one and 
 for the others, the latter are to be allowc! all their separate costs a.n6i prima facie 
 an aliquot part of the joint costs, unless the master is satisfied that some smaller 
 proportion should be allowed by reason of other special circumstances : Griffiths v. 
 Kyimton et al, 2 Tyr. 767 ; Norman v. Climenson el al, 1 Dowl. N.S. 718; Bartholo- 
 mew V. Stepluns et al, 6 M. tb W. 386. Where one of several defendants suffers judg- 
 ment by default and the remainder obtain a verdict, they are entitled to the costs : 
 Price V. Harris et al, 2 Dowl. P. C. 804. Where two defendants sever in their 
 pleadings but plead the same pleas, all going to tlie whole cause of action, and 
 one succeeds upon all the issues and the other upon one only, each defendant is 
 entitled to his separate costs of the issues on which he succeeded and aliquot part 
 of the joint costs : Gambrell v. £arl Falmmdh ct al, 5 A. dt E. 403 ; and the costs 
 of the successful defendant may, it seems, be deducted out of the plaintiff's costs 
 and damages, without regard to the attorney's lien : George v. Elston et al, 1 Biug. 
 N, C. 513; Starling v. Cozens et al, S Dowl. P. C. 782; s. c. 4 Dowl. P. C. 44.') ; 
 Griffith V. Jones et al, 4 Dowl. P. C. 169 ; Leei v. Reffitt et al, 3 A. & E. 707. But 
 where the several defendants, though defending separately and apparently by dif- 
 ferent attorneys, though virtually oy one attorney only, they are not entitled to 
 claim by separate bills of costs, but must make a joint charge : Nanny v. Kenrick 
 
 
420 
 
 THE COMMON LAW PROCEDURE ACT. [SS. 318, 819. 
 
 Ce-its where 
 iidlle ■proso- 
 qul entered 
 as toi)iutof 
 dC'Juiatiuii. 
 
 Costs nn ar- 
 rest of Juilg- 
 mt'iit or 
 juil;^im'iit 
 non obstante. 
 
 hand, that there was a reasonable cause for making such per. 
 son a Defendant in the action, (c) 7 Wm. IV. c. 3, s. 24. 
 
 318. (jot) Where a Nolle Prosequi ia entered upon any 
 count, or as to part of any declaration, (e) the Defendant 
 shall have judgment for his reasonable costs in that be. 
 half. (/) 7 Wm. IV. c. 3, s. 25. 
 
 310. (/y) Upon an arrest of judgment or judgment non 
 ohHanie vn'eiUcto, the Court shall adjudge to the party against 
 whom such judgment is given, the costs occasioned by the 
 trial of any issues in fact arising out of the pleading for 
 defect of which such judgment is given and upon which 
 such party has succeeded, {K) and such costs shall be set off 
 
 
 
 4^1 
 
 
 hi I 
 
 
 VI t 
 
 
 et al, 2 Dowl. P. C. 334. Where there are several defendants who obtain a ver- 
 dict, the costs of all mnst be taxed at the sanae time, though they defend sepa- 
 rately : Smith el al y. Campbell et al, 6 Bing. 637. 
 
 (c) This certificate can only bo given by the judge who tried the cause : Sovth- 
 well V. Bird, 7 Dowl. P. C. 667. Qu. If the cause be taken down to trial and ' 
 then refused? see Nokea v. Frazer, 3 Dowl. P. C. 339; Parker v, Serle, 6 Dowl. 
 P. C. 334 ; Wallen v. Smith, 6 M. «t W. 159. There is no time mentioned withia 
 which this certificate should be moved or granted, but it is presumed that it 
 should be moved immediately after the verdict: see, however, Jvey v. Young, 
 6 Dowl. P, C. 450; Btoggref v. Uawlte, 3 Bing. N. C. 880. 
 
 (rf) Token from repealed Stat. U. C. 7 Wm. IV. cap. 3, s. 25, which was a tran' 
 script of Eng. Stat. 8 & 4 Wm. IV. cap. 42, s. 38. 
 
 (e) The previous section applies to the case of a nolle prosequi entered as to 
 one or more of several defendants ; this section to a case of a nolle prosequi 
 entered " upon any count or as to part of any declaration." 
 
 (/) This is an application to the case of a nolle prosequi as to a count or part 
 of a declaration, of the same equitable principles which regulate the costs of sev- 
 eral issues according to the finding : eee note t to section 110 of this act. 
 
 iff) Taken from Eng. Stat. 15 A 16 Vic. c. 76, s. 146. 
 
 (h) Before this act upon a motion in arrest of judgment, or for judgment Ron 
 obstante, each party paid his own costs : Tiffin v. Glass, Barnes, 142 ; Cameron et d 
 V. Reynolds, 1 Cowp. 407 ; Ooodburne v. Boioman, 9 Bing. 667. The reason wliy 
 the successful party was refused costs was that he ought to have taken his objec- 
 tion at an earlier stage of the proceedings, viz. by demurrer : Hodgkinson v. Wyalt, 
 1 D. <& L. 672, per Patteson, J. ; but if the rule of the party moving was discharged 
 he was compelled to pay the costs of the application to the opposite party: lb. 668. 
 Now, although he succeed he must pay some costs, viz. the costs occasioned by 
 the trial of any issues in fact, arising out of the pleadings, for defects in which he 
 recovers judgment. Even before this act, although judgment was arrested on ona 
 count of a declaration, but judgment remained in favor of defendant as to others 
 upon which he had succeeded at the trial, he was held to be entitled to the general 
 costs of the cause : Elderton v. Hmmens, 6 D. (fe L. 489. As to judgment non 
 obstante veredicto, it has been held that neither party is entitled to costs where 
 :the issues are immaterial : Ooodburne v. Bowman, 2 Dowl. P. C. 206. And where 
 
gS. 320, 321.] PAYMKNT OF COSTS BY EXECUTORS. 
 
 421 
 
 ich was a tran" 
 
 acrainst any money or costs adjudged to the opposite party, 
 and execution may issue for the balance, if any. (/) 11) Vic. 
 c. 43, 8. 219. 
 
 .120. (k) In all Writs of Scire Fao'as. (l) a-)o of Kcvi- Plaintiff 
 vnr (m') the Plaintiif, obtaining jud-'raent oj nn awarJ of lostsim 
 execution, shiiU recover his costs of suit upon a jml^ja'-ot by .■ tn jmii,- 
 (lefault, (n) as well as upon a jud;j;mci)t after pica pIc- '. .1, or i'lVauiif&o. 
 demurrer joined, (o) 7 Wm. IV. c. 3, s. 2ii. 
 
 331. (7') In every 2:nioi brought by an executor ov '^ vne.it if 
 administrator in the right 01" the testator or intestate, such !xei-u'o:-i 
 cjecutor or administrator in case of bci'/g non-suircd, or of a i "r.;.o;'i'"' 
 verdict passing against him^ and in all other cases in which 
 lie would bo liable if he were suing in bin own right upon a 
 
 jiuljment non obilanfe veredicto was onlered for plaintiff iu the Queen's Bench, 
 Enjlancl, nnd afterwards reversed by a court of error, it was held tliat defendant 
 waa entitled to the costs of opposing the rule for judgment non ob»tan'.e veredicto: 
 Eciiiit et al V. Cotlint et al, 2 D. <& L. 989. So where a cause had been referred 
 and judgment was for the plaintiff, but was arrested by a court of error, it was 
 lield under the order of reference, coupled with the section in the Encjlish act cor- 
 respoudiiig to the above, that the plainliff was entitled to the costs of the arhitra- 
 ;ioo. and also to the costs in the court below: Whaley v. Laing, 5 IL <$: N. 480. 
 
 (1) The effect of this provision will be, as intended, to lessen the frequency of 
 motions either in arrest of judgment or for judgment non obntanle veredicto. 
 ():mre. Would the set-off of costs here authorised be suffered to interfere with 
 Bn attorney's lien for costs of suit? see Doe d. Swinton v. Sinclair et al, 6 Dowl. 
 
 P. C. 26. 
 
 (/.) Taken from repealed Statute U. C. 1 'Wni. IV. Citp. 3, s. 2o. The origin of 
 wliidi was 8 <fe 9 Wm. 111. c. 11, s. 3. 
 
 (/) Extends only it is apprehended to ncire facias in civil suits, and not to xcire 
 fiicm to repeal letters patent;, «tc. : Hex y. Milen, 1 T. II. St»7. In Poole v. Broad- 
 /■■hi, Barnes, 431, it was held that costs could not be given against a plaintiff 
 Applying to quash his own writ of scire faeias ; and it was so ruled in Pockliugton 
 V. r^k, 1 Stra. 688, on plaintiff applying for leave for that purpose after plea in 
 abatement; but tiie court said thufc 11 there had been no plea they would have 
 made the plaintiff pay costs. It is now ordered that a plainliff shall not be 
 allowed a rule to quash his own writ of scire facias or revivor after a defendant 
 Las appeared, except on payment of costs: E. G. pr. 69. 
 
 (m) See sections 302, S05. 
 
 (») Tliere were no costs under 8<fe 9 \Vm. III. cap. 11, s. 3, in the c;ise of 
 judgment by default: Biddnlph v. C'oojjcr cileti, 1 H. Bl. 108; Bok v. Hoihjcl.i, 
 7 Moore, 602. 
 
 (0) As to which full provision was made by the 8 <fe 9 Wm. III. cap. 11, s. 3. 
 
 (/>) Taken from repealed Stat. U. C. 7 Wm. IV. cap. 3, s. 23. The original of 
 fthith ia Eng. Stat. 3 A 4 Wm. IV. cap. 42, s. 3L 
 
422 
 
 TUB COMMON LAW TROCEDUnE ACT. 
 
 [8. 322. 
 
 
 
 
 s< < 
 
 li"? 
 
 
 ■ iJiU -J 
 1) 
 
 "^1 
 
 Clrciiiii- 
 Htitiiccs mi- 
 ller Wllit'll 
 
 cnuHC of action accruing to himHcif, (7) shall, unless the 
 Court in which the action is brought, or a Judj^o thereof (»•) 
 otherwise orders, (a) be liable to pay costs to the Dcfondnnt 
 and the Defendant shall hove judgment for such costs, nml 
 they shall be recovered in like manner, (f) 7 Wiu. IV. 
 c. 3, s. 23. 
 
 339. (a) In case the Plain tiff in any action docs not 
 obtain a verdict (i) for the amount for which the Defendant 
 
 (7) TIio intention of tliis section is to put executors nnd adminisl .•aloes (wturo 
 pluintiU's) on the same f(jotin'j; ns other plnintifFH, subject to the exercise of ilio 
 (liscretionnry power in tiioir favour noticed in noles » and t infra. 
 
 ()•) The nuMinrity of any one of tlie jud^ros is under this sccLion co-ordinate with 
 thnt of tiie whole court: Mad(hck v. rhilUpa, 3 A. &, E. 198; but see Lnhin et al 
 V. Mauve, 4 Dowl. 1'. C. 2:59; and see niso note w to section 48. And Uiercfdrc 
 where a siuylo j"df?o, in tiio exorcise of his discretion, made an order to relieve 
 an executor plaintiff iVom payment of costs the court declined to revicv/ ilie 
 exercise oi* disci ion: Lukin et al v. Maasie, 4 Dowl. P. C. 2;}9. 
 
 (s) In order to induce the court or a judge in the exercise of thei>' or bin dis- 
 cretion to relieve a plointiff execitor from the payment of costs, it must be shewn 
 not merely that the action was brought bona fide or even under (he ailvjse of 
 counsel, but that duo diligence was used and proper enquiry made of the defen- 
 dant l)efore the commencement of the action for the purpose of nsceri ainiiig whether 
 ho the plaintiff was in a position to p'-osccute liis suit to a successful roselt, and 
 so that in fact the failure of the action may not nppeur to have arisen from 8on;e- 
 thing like fraud or misapprehension on the part of the defendant ; and ilie nuio 
 refusal of the defendant to disclose the precise nature or ground o^ his dd'ence 
 will not be sufHcitint for this purpose: Wilkhimn v. Edwardn, 1 Bing. N. C. aoi ; 
 Jiroiim et al v. Crolcy et al, 3 Dowl. P. C. 386 ; Soiith'/a'.e et al v. C'rowh;/ et a!, ] Bin;'. 
 N. C. 518 ; Godson v. Freeman, 2 C. M. li: R. .583 ; '^Eugler v. Twixden', 2 I5in'^. X. C. 
 263 ; Rfdmaj/ne v. Moore, 2 Jur. N.S. 6{>1. Nor will the fact that the pl.iiiiiiH'wM 
 taken by surprise by the defence be sufiicient: Godson v. Freeinnu, 2 C. M, it U. 
 f>85 ; Farhji et al v. Briant et al, 3 A. «fe E. 839. Or that the defendant lins been 
 dischnrged under an insolvency or bankruptcy act : Eiigler v. 7'ii'hd'h, 2 Uins'. 
 N. C. 2()3. Mere silence by tlie defendant as to the nature of his defence is not 
 sufiicient ground for the application: Birkhcad v. North, 4 D. & L. 732. The 
 meaning of the statute is that executors shall be liable in those cases in whiih 
 they Were not liable before, but does not touch the case of an executor suing on a 
 contract made with himself: see further Ax/Uon v. I^oynier, 1 C. M. & II. V'til, jur 
 Parke, D. ; iivitwe cl al v. Albe^-t, 2 A. ife E. 781. 
 
 {t) The general rule established by the statute is that the executor ov adminis- 
 trator shall, like other suitors, be liable lo the payment of costs if unsucressful Iq 
 litigation, and it therefore devolves upon him, in order tft escape liability, to 
 bring his case clearly within the e::ception, and to do so he musu establish speeial 
 grounds such as mentioned in last note for interference on his behalf: Farky eld 
 V. Briant ct al, 3 A. <fe K. 8*Jo, per Lord Denman, C. J. 
 
 {a) Taken from repealed Stat. U, C. 49 Geo, III. cap. 4, s. 1, the original of 
 which was Eng. 8tat. 43 Geo. III. cap. 46, s. 3. 
 
 (i) The plaintiff must obtain a less amount by verdict or other compulsory jiro- 
 cess, or the statute will not apply : Brooks v. Riyby, 2 A. «t E. 21 ; Rowe v. RhQ'la, 
 
,322,] 
 
 COSTS OF DEFENDANT RELD TO BAIL. 
 
 423 
 
 liog been arrested and held to special bail, (c) and in case <i<'r>'ii>iaiit. 
 upon motion to be made in Court for that purpose, and upon him. i,ii i>aii, 
 bearing the parties by affidavit, it be made to appear, to the I'm t" cu»t« 
 satisfaction of the Court in which the action has been "' ''"'^' 
 brought, (il) that |the Plaintiff had not any reosonoMe or 
 
 2 C. <t M. 8V9 ; Butler v. Brown, 1 B. d; B. 66. Thoroforo not applicable whoro 
 adefomlant pays into court a sura less thon that sworn to and tiio plaintiff tt^(•opt9 
 ];: lb.; tliougn it miglit bo otiierwiso If tho plaintiff replied dnmagos ultra aiul 
 obtained a verdict: see Taylor v. JKoife, 13 L. J. Q. B. 89. So inunplicalile if 
 action compromised : LinthwaiU v. Bellinga, 2 Smltli, 667 ; or referred to at bitrn- 
 tion: Kitne v. DeebU, 8 B. <fe C. 491 ; Payne v. Aeton et al, 1 B. <ic B. 278 ; Sherwood 
 V, Ti'j'er, 6 Bing. 280; McGregor v. Scott,Tay. Uep. 56; Powell v. Ooll, 1 U. C. 
 Q, B. 418 ; unless a verdict be taken suWect to a reference : Jonet v, Jehu, 6 Dowl. 
 PC. 130; Tamer et al v. Prince, 5 Bing. 191 ; Kendrew v. Allen, T. T. 4 »fe 6 
 Vic. MS. R. A n. Dig. " Costs," iv. (1) 4 ; McMicking v. Spencer, H. T. 6 Vio. MS. 
 lb. "Costs," Iv. (1) 6; Nieholton v. Allan, 6 O.S. 2B2; or perhaps tho arbitrator 
 having power to order, does orior judgment to bo entered up: Holder v. Raith, 4 N. 
 (i- M. 466; but in that case, if the submission that tho costs of tho cause are " to 
 abide the event," it would -^eem the statute would bo inapplicable : Thompson el al 
 y.Atkinion, 6 B. <fc C. 193; but ceo Nicholson v. Allan, 6 O.S. 252. If the arbi- 
 tratur, having tho same power as the court, does not make any award on this 
 statute, the court will not interfere : Greenwood v. Johnson, 3 Dowl. P. C. 600, 
 Smble, tlio word "obtain" in this act, or "recover" in tlio old act, aro not 
 necessarily to be construed the sum for which the verdict was rendered in order 
 ;? prevent the plaintiff taxing any costs when the defendant is allowed his costs 
 of'defcnw: Higson v. Phelan, 1 Prac. R. 24; s. c. 2 Cham. R. 7. The act docs 
 not extend to tho case of a plaintiff in debt on bond recovering a verdict for nomi- 
 nal damages and taking judgment for the j)enalty, tho penalty being the sum in 
 law recovered: CammacKy. Gregory, 10 East. 626; Talbot v. Ilodson, 2 Marsh. 
 627. 
 
 (c)'Thcro must bo an arrest as well as a holding to bail before the statute can 
 beheld to apply: Bates y. Pilling, 2 Dowl P. C. 367; Amorx. Blofi'.Ld, 1 Dowl. 
 P, C. 277; James v. Askew, 8 A. i E. 361 ; Robinson v. Powell, 5 M. A W. 479 ; 
 Cash et al v. Ih-evor, 3 Ir. L. R. 433. But semble, the words of the statute are satis- 
 fied by the defendant being arrested and imprisoned : McGregor v. Scott, Tay. 
 Rep, 56; see also Uandley v. Leey, 8 B. <k C. 637 ; Ricketti et al v. Noble, 3 Ex. 52l. 
 A bailable writ having issued, the deputy sheriff went to defendant, informed him 
 that he had the writ, anu asked him to find bail. They both then went in search 
 of bail, and a bail bond was executed. Held a sufficient arrest and liolding to 
 bail to make the statute applicable: Morse v. Jeetzel, 1 Prac. R. 369. But whcro 
 defendant was arrested, and without putting in special bail was discharged under 
 tiie Eng. Stat. 1 «fe 2 Vic, cap. 110, 8.7, the statute was held inapplicable: Dennett 
 V. Burton, 9 Dowl. P. C. 492 ; see also Edwards v. Joms, 6 Dowl. P. C. 685 ; WiL- 
 ion V. Broughtouf 2 Dowl. P. C. 631 ; Joel v. Peard, 10 Ir. L. R. 550. 
 
 [i) Tho application must be made to the court wherein the action was com- 
 menced: Costello y. Corlett, 4 Bing, 474; Handley v. Levy, 8 B. A C. 637; Jtimcs 
 v. Dawson, 1 Dowl. P. C. 841 ; Connel v. Watson, 2 Dowl. P. C. 139; before the 
 taxation of costs: Rennie v. Yorston, 8 Dowl, P. C. 326. The affidavit must stata 
 tiiat the defendant was arrested without reasonable or probable cause : Mcintosh v. 
 White, Tay. Rep, 57 ; but if the facts disclosed in the affidavit shew the arre^^t to 
 bave been without reasonable anu probable cause, that is sufficient without swear- 
 iaj to it in express ternis : Laderonte v. Cullen, 1 Prac. R. 22 ; and it should also 
 
 im 
 
 i- 
 
 ^i^iii 
 
424 
 
 THE COMMON LAW rROCEDURE ACT. 
 
 [S. 322. ' 
 
 
 probable canse for causing tbe Defendant to be arrested and 
 held to special bail in such amount as aforesaid, (e) such 
 
 appear by afRdarit for what amount the plaintiff obtained his verdict: Powdl 
 V. Oott, 1 U. C. Q. B. 415; and in one case, where the affidavits were incor- 
 rectly intituled, the court refused leave to amend : Rose et al v. Cook, lb 6 ; but 
 where the rule only was incorrectly intituled, the court allowed an amendment 
 of it ill accordance with the affidavits, on payment of costs : Ball v. Mckenzie 
 T. T. 7 Vic, MS. R. & H. Dig. "Costs," iv, (\)1. ^he judge's notes may be 
 referred to : Van Jfj/vel v. Hunter^ % K. & %. 2^3 ; Uigton y. Phelan,^ 1 Prac. R. 
 24 ; and affidavits will not be received foe the purpose of impeaching the verdict: 
 Tipton V. Gardner, 4 A. <& £. ?17; see also Twui v. Otborne, 4 Dowl, p. C. loi 
 The verdict is ^rima /aeieevidence.of the amount due, and the court is in general 
 guided by the evidence given at the trial : Gknyille v. Hiitchins, 1 B. & C. 91 • 
 Ballantyney. Taylor, 6 A. <b E, 792. The fart that the indorsement for bail on 
 the capiat by mistake stated a larger snm thn •; th^t stated in the affidavit of debt 
 (the arrest having been made for the amount really due) is immaterial : Preeiii 
 V. Marfarlane, 3 DowL P. C. 458. 
 
 (e) The defendant is only entitled to his costs nnder this staiiite if the pluintifT 
 holds him to bail for a sum materially larger than that which was found to be 
 due : Sherwood v. Tayler, 6 Bing. 280 ; Roper v. Sheasby el al, 1 C, «b M. 498 ; and 
 if iiic plaintiff acted on a conscientious persuasion that the larger sum is dne, ho 
 may be held justified in arresting for that amount: Clare v. Cooke, 4 Bing. N, C. 
 269, The onus has been held to lie on the defendant to show that there was not 
 reasonable grounds for making the arrest for the larger amount to the knowledM 
 of the plaintiff: Day v. Clark, 1 Dowl. P. C. 147 ; Edwards v, Jones, 2 M. <t W. 
 414 ; White v, Prickett, 6 Dowl, P, C, 445 ; Hood v. Cronkite, 29 U, C. Q. B. 93. 
 Therefore where defendant set up her coverture to part of plaintiff's demand, of 
 which plaintiff was ignorant, it was held that he had reasonable grounds for arrest- 
 ing for the amount incurred during her coverture : Spooner v. Banks, 7 Bing. 772 ; 
 see also Manlell v. Southall, 2 Bing. N, C. 74. So where the debt was reduced by 
 the Statute of Limitations, and the defendant had given the plaintiff reason to 
 believe that he did not intend to set up tliat defence : While v. Prickett, 4 Bing. 
 N. C, 237 ; 8. c. 8 Dowl, P, C, 446 ; sea also Ballantine v, Taylor, 1 N, <t P. 219. 
 So if unable to prove the full amount of his claim owing to some accidental cir- 
 cumstance: Shatwell v. Barlow, 3 Dowl, P. C. 709 ; such as a defect in his declara- 
 tion: Preedy y. McFarlane, 1 C M. <feR, 819; or credit twice given for, the same 
 items by mistake : Goldie et al v, Cameron, 1 Prac, R, 20; or where a reasonable 
 doubt in law as to plaintiff's right to recover part of her demand : Stovin v. Taylor. 
 I Dowl, P. C. 697, note a. But plaintiff is bound by the statutes of set-off, and 
 when about to make an arrest must consider the balance really duo and make 
 that the bpsis of the arrest : Kendrew v. Allen, T, T, 4 <fe 6 Vic, MS. R. it H. 
 Dig, "Cos* , iv, (14,) If goods are sold partly on credit and part for ready 
 money, and .< .'fore the credit is expired the debtor is arrested for tne full amount, 
 tlieie will be no masonnble and probable cause for the arrest for the larger sura: 
 Day v, Ptclon, 10 B. A C, 120; Gompertz v. Denton, 1 Dowl, P, C. 623: Rusull 
 v, Atkinnon, 2 N. i ". 667 ; and so where defendant, before action, had returned 
 n part of the goods as being of bad quality : Linley v. Bates, 2 C. «fe J, 659. So 
 if an attorney held his client to bail for a bill of costs larger in amount tliau 
 thiit at which it is ultimately taxed: Robinson v. Eiaam, 6 B, <fe Al. 601; Loti 
 Uuntingtower v, Hetly, 7 D. A R, 369 ; Griffiths v, Pointon, 2 N, «t M. 675. It 
 requires a strong case to bring an executor within the operation of the act, a5 
 having made an arrest witliout reasonable or probable cause : Foulkes tt al v, 
 Marsh, 1 Marsh, 21 ; James v. F>-ancis, 5 Price, 1 ; see further Sihersides v, 
 Boiolcy, 1 Moore, 92. 
 
, 323.] 
 
 COSTS IN ACTIONSs OX JCDG.MENTS. 
 
 425 
 
 Court may, by rule or order, direct tbat tbe costs of suit 
 shall be allowed to the Defendant, (/) and tbe Defendant 
 shall thereupon be entitled ' such costs of suit, and the 
 Plaintiff, upon such rule or order being made, shall be dis- 
 abled from taking out any execution for the snm recovered 
 in such action, unless the same exceeds, and then in such 
 sum ouly as the same exceeds the amount of the taxed costs 
 of the Defendant, (g) and in case the sum recoTcred in any 
 sQcb action is less than the amount of the taxed cost«( of tbe 
 Defendant, then after deducting the sum of money recovered 
 by the Plaintiff from the amount of the Defendant's costs to 
 be taxed as aforesaid, he may iale out execution for the 
 balance of sttoh costs in like manner as a Defendant may now 
 by law have execution for costs in other cases. (A) 49 Goo. 
 III. c. 4, s. 1. 
 
 333. ({) In case of an action brought upon any judg- in actions 
 ment recovered in any Court of Record of Upper Canada, or meiits,'' 
 in any Division Court, (j) the Plaintiff in such action shall eutltiea to 
 not be entitled to any costs of suit, (JS) unless the Court in i,^''niie"or'' 
 which the action is brought, or some Judge of the same *^''"'^' 
 
 (/) Semble, that tho statute is inapplicable to one of severrJ defendants who 
 had been arrested for more than the sum recovered : Glass y. Carry el at, 1 Pruc. 
 B. 132. 
 
 (g) Not only in the event of there being no reaspnable and probable cause for 
 the arrest is the defendant entitled to the costs of the suit, but generally to the 
 costs of the application : Higson v. Phdan, 1 Praic. R. 24 ; and entitled to set off 
 the amount of his costs as taxed ag;ainEt plaintiff's verdict: Bnrrouis v. Lee, 
 E. T. 3 Vic. MS. R. «fe H. Dig. "Costs," iv. (1) 2. 
 
 (h) In this way the set-off is made most effective ; thus, 
 
 1. Defendant entitled to costs of suit. 
 
 1. Plaintiff entitled to execution only for balance, if any, between such costs 
 and the verdict. 
 
 S. Defendant entitled to execution for balance if verdict less than costs of suit. 
 
 (/) Taken from repealed Stat. U. C. 49 Geo. III. cap. 4, s. 2, as consolidated 
 wit!i section 52 of 13 «fe 14 Vic. c. 63. The orijin of which is Eng. Stat. 43 Geo. 
 111. cap. 40, s. 4. 
 
 (J) The section extends '•ily to judgments recovered by plaintiffs, and not to 
 juagments of nonsuit or nonpros : £e7ineU v. Xtale, 14 East 343. 
 
 (i) The court will not interfere to stay proceeding in the action upon pay- 
 ment of the judgment debt without costs:' Wood v. Scil'tto, 1 Chit. Rep. 473. 
 
 
426 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 324. 
 
 WM. 
 
 (^ ■ 
 
 
 ;i^ 
 
 
 
 In trespass 
 or case, 
 Pliiiutiir to 
 
 Couifc, (0 oiLerwise orders. (;;i) 4*) Geo. Til. c. 4, s. 2 • 
 13 & 1-i Vic. c. 5C, s. 52. 
 
 8!24. (n) If the Plaiatiff, io any action Oi trespass (o) 
 or trespass on the case, (p) recovers by the verdict of a Jury 
 
 (l) The application ought when practicable to be made to the judge in chain, 
 bers, and apparently to a judge of " the same court" in whicli the action is 
 brought: Claridge v. Wibwi, 28 L. J. Ex. 246. Although the statute allows it to 
 be made to the full court : Joitea v. lAtke, S C. d; P. S96. The application is not 
 ex parte: Loviax v. Berrti, 29 L. T. Hep. 129; s. c. 3 Jur. N.S. 446. If in cham- 
 bers it must be by summons : lb. If to the court, by rule nisi : Fraser v. Mom 
 4 Scott, N. R. 749. 
 
 (>/j) It is not usual to give the costs: Jfaiony. NicltolU, 14 M. & W. 118; 
 HanvicrwAVhiU, 12 M. AW. 619; SlaUry. Mackay, S C.B. 563; Keele^-y.Brom, 
 1 U. C. Q. E. 848 ; though defendant have occasioned delay by obtaining time to 
 plead : Hall v. Fierce, 6 DowL P. C. 60C ; or plead a false plea of nul lief record : 
 Hanmer v. \VhUe, 12 M. tt W. 619 ; McDonald v. Clarke, 1 U. C. Q. B. 527. But 
 if the pvocoedings, instead of being rash or vexatious, havo been directed by the 
 court 01- are shown to be really necessary to enable plaintiff effectually to enforce 
 his rights, costs will be allowed: Frcuer v. Moses, 1 Dowl. N.S. 7U5; Garmcell v. 
 Barker, .I Taunt. 264; Armstrong v. Fitller, 1 Chit. Rep. 190; Wood v. Siillelo,lb. 
 473 ; /S'/aJe,' v. Mackie, 19 L. J. C. P. 88 ; Jtevell v. Wethe^'ell, 3 C. B. 821. 
 
 (»t) This section is the one substituted by Stat, of Ontario 31 Vic. cap. 24, s. 1, 
 for the former section 324 of the C. L. P. Act. The latter was a re-enactraent of 
 Irt Vic. cap. 175, s. 26, which was talten from Eng. Stat. 3 & 4 Vic. cap. 24, s. 2. 
 It may be mentioned that the last named statute repealed the act of 43 Eliz. cap. 
 6, " so far as it relates to costs in .actions of trespass or trespass on the case," and 
 so much of the 22 it 23 Car. II. cap. 9, "as relates to costs in personal actions;" 
 see Morgan v. T/ioi-ne, 7 M. <b W. 400. But that our 16 Vic. cap. 173, s. 2d, did 
 not do so in express words any more than the section here annotated, iloferring 
 to 16 Vic. <!ap. 175, s. 26, Robinson, C. J., said: "The new provision forius a 
 single clause in a statute whicii relates to a multitude of other subjects. No inten- 
 tion is expressed of consolidating the existing law on this point, or of affording 
 one simple rule as a substitute tor all others relating to the plaintiff's costs in 
 actions of trespass and trespass on the case. It follows then, we think, that wo 
 can only take this isolated clause as it stands, and give effect to its provisions by 
 allowing them to overrule any previous enactment with whicii they conflict. Wo 
 cannot go so far as to hold tnat this clause virtually repeals all former laws on 
 this subject, ttiough we may and must hold it to have virtually repealed whatever 
 is clearly inconsistent with it:" Pedder v. Moore, 1 Prac. R. 119. The Eng. Stat. 
 8 <fe 4 Vic. cap. 24, s. 2, was afterwards, in England, in accordance with tlio 
 decision of Pedder v. Moore, held not to conflict with the 21 Jac. 1, cap. 16, s. 6, 
 BO as to repeal it, " but that both enactments may well stand together : Uuans v. 
 Beet, 9 C. B. N.S. 891. But it has bee" decided by the court of Common Pleag 
 that section 324 above annotated as amended by Stat. Ont. 31 Vic. cap. 24, s. 1, 
 has in effect repealed the 21 !>.c. 1, cap. 16, s. 6, so that a judge may now certify 
 for full costs in an action for slander, though the damages recovered bo only ono 
 Bhilling: Stewart v. Moffatt, 20 U. C. C. P. 89. 
 
 (o) Qucere. Is the statute 8 «fe 9 Wm. III. cap. 11, s. 4, which allows plaintiffs 
 full costs in actions uf trespass upon a certificate of the presiding judge that tlio 
 trespass proved is wilful and malicious, no matter what the amount of the verdict 
 may be, repealed ? see Wise v. Jlewion et al, 1 Prac. R. 232. 
 
 (p) Though asmmptU is a species of trespass on the case, yet it is not contcm- 
 
324.] 
 
 COSTS IN TRESPASS AND CASE. 
 
 427 
 
 less damages thao eight dollars, such Plaintiff sTiall not be rrrnvor no 
 entitled to recover, in respect of such verdict, any costs Tvhat- diit'^ix' less' 
 ever, (y) whether the verdict be given on un issue tried, (r) or a!Xral!n- 
 Judginent has passed by default, (s) unless the Judge or pre- ''^'*'' •'"''=''' 
 
 plateH by tins section. The only species of actions on the case intended are those 
 broiif, ^' for " grievances," i. e. actions for tort : see Moriion el al v. Salmon, 1 L. J. 
 C. p. 91. Thus actions for the infringement of patents: Gillett v. Green, 7 M. «fc 
 AV. 347; for libel: Foater v. Pointer, 1 Dowl. N.S. 28; for slander: Stewart v. 
 iMatt, 20 U. C. C. P. 89; Newton v. Roe, 2 D. <fe L. 815; for nuisance: Shuttle- 
 wor(h V. Cocker, 9 Dowl. P. C. 76; lieid v. Athbi/ et al, 13 0. B. 897; for seduc- 
 tion ; TowHsendv. Sterling, 4 Prac. R. 126 ; and generally for any wrong- committed 
 [a delicto) which is the subject of an action. 
 
 (q) If the plaintiflf, <fec., shall recover, Ac, less damages than eight dollars, Ac, 
 snch plaintiff shall not be entitled to recover in resiiect of such verdict any costs 
 Khaltver. The penalty is different from that enacted by the'statutes of Elizabeth, 
 James and Charles II. which debar plaintiff from recovering " more costs than 
 
 damages." 
 
 (r) The Eng. Stat, of 3 <fe 4 Vic. cap. 24, s. 2, which reads, " upon any issue or 
 iiiuet tried." &c. was clearly held to contemplate actions in which there v/ere 
 more issues than one: Newton v. Rowe et al, 1 0. B. 187. In an action for n libel 
 tiie defendant pleaded not guilty and several pleas of ji'stification. The plaintiff 
 recovered a verdict on all the issues — damages three farthings. Jleld under Stat. 
 .'J (t 4 Vic. cap. 24, s. 2, that he was not entitled to any costs: lb. R^eferring to 
 tills ease the Court of Exchequer said, " We concur entirely in that decision :" 
 Sharland v. Loaring, 1 Ex. 375. To a count of trespass qu. cl. /r. upon three 
 closes tiie defendant pleaded several pleas ; the plaintiff new assigned trespasses 
 ixlra viam as to the third close, to whicli the defendant pleaded not guilty. The 
 (lefeiiilant had a verdict on some of the issues with respect to the first and second 
 'loses, and the plaintiff upon the others, so that the defendant succeeded as to the 
 cau.?es of action in those closes ; the plaintiff hud a verdict with one farthing 
 (iama;L:es upon the new assignment. There was no certificate under the Eng. Stat, 
 of 3 (fc 4 Vic. cap. 24. Held that the causes of action were divisible, and that under 
 Stat. 4 <fe 5 Anne, cap. 16, ss. 4, 6, the plaintiff was entitled to the costs of the 
 issues found for him with respect to the causes of action in the first and second 
 closes; 'jiit that he was deprived of all costs by the 3 »fc 4 Vie. cap. 24, with respect 
 to tiie cause of action for trespasses in the third dose : lo. By the »>nc statute 
 tlie defondant is punished for pleading pleas which he cannot support ; by tho 
 otlier tlic plaintiff is punislied for bringing a frivolous action, tliougli he succeed: 
 lb. A plaintiff having obtained judgment upon a demurrer to a replication, tho 
 cause went down for trial upon the issues of fact without a venire tarn quam : the 
 plaintiff recovered only twenty shillings damages, and the judge refused to certify 
 under H A 4 Vic. cap. 24. Held that plaintiff was only entitled to the costs of tho 
 demurrer: Poole v. Orantham, 2 D. <fe L. 622. This section doos not affect tho 
 costs of a demurrer adjudged in favour of tho plaintiff, which costs are irrespec- 
 tive of the finding of a jury: Kinlock v. Hall, 26 TJ. C. Q. B. 134; Tonnsend v. 
 Sterling, 4 I'rac. It. 125. But if plaintiff fail at the trial on the merits, he cannot 
 afterwards have a demurrer argued meraly for the purpose of getting costs against 
 the defendant: Maemartin v. Thompson, 20 U. C. Q. B. 334. 
 
 (•») The words "issue tried" and "default" were held not to comprcliond an 
 inquiry after judgment on demurrer, though tho verdict be only for one furthinj 
 damages : Taylor v. Rol/ et al, 5 Q. B. 337. 
 
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 THE COMMON LAW PROCEDUaE ACT. 
 
 [s. 324. 
 
 cei tines eci- sidiiig officcT, bcforc whom such verdict is obtained, (/) imme- 
 diately afterwards, or at any fuiuve time to which he may 
 
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 (t) An action of trespass qu. cl. fr. was referred to arbitration, and by the 
 order of reference the arbitrator was empowered to certify in the same matiuer as 
 a judge at nisi prius. The arbitrator, though awarding one shilling damages, did 
 certify that the action was brought " to try a right besides the mere right to 
 recover damages." Held, plaintiff entitled to full costs : Spain v. Cadell, 9 Dowl. 
 P. C. 745. And per Alderson, B. : " It seems to me that the parties are concluded 
 by their own agreement, upon which we must put a reasonable construction. By 
 the order of reference the parties have consented that the arbitrator shall stand 
 in the same situation and have the same power to certify as a judge at nisi prius. 
 They have, then, given the arbitrator the same authority as a judge possesses to 
 determine whether or not the verdict is to carry costs :" 76, 747. By an order of 
 reference in an action for an injury to the plaintiff's reversion by making a drnin 
 into his premises, a verdict was directed to be entered for the plaintiff, claim 
 £500, costs forty shillings, subject to the award of a barrister, to whom the cause 
 and all matters in difference were referred, and who was empowered to direct a 
 verdict for the plaintiff or the defendant as he should think proper, and to have 
 all the same powers as the court or a judge sitting at nisi prius, and the costs of 
 the suit to abide the event of the award. The arbitrator by his award found all 
 the issues in the action in favor of the plaintiff, except the first, and that he found 
 partly for the plaintiff and partly for the defendant ; and he further directed that 
 the verdict entered for the plaintiff should stand, but that the damages should be 
 reduced to one farthing, ffeld that the plaintiff was not, in the absence of a cer- 
 tificate under 3 «fe 4 Vic. cap. 24, 8. 2, entitled to the costs of the cause : Cooper 
 V. Peffff, 16 C B. 454. Where in an action on the case for diverting a stream or 
 water-course, '•' all matters in difference in the cause" were referred to arbitration, 
 " the costs of the suit to abide the event of the award or umpirage," but no power 
 was given to (;ertify under 3 «fe 4 Vic. cap. 24, s. 2. Held that the true meaning 
 of the submission was what its words import, that costs, i. e. the payment of costs, 
 should folk /the event. »'. e. the legal event of the award, that he in whose favour 
 tlie decisi. i was should be paid by the other party the costs of the suit : Oriffiihs 
 V, Thomas, 4 D. <fe L. 109, In this case the arbitrator found for the plaintiff on 
 all the issues, and assessed his damages at sixpence. Held that plaintiff, notwitli 
 standing, was entitled to full costs : 7b. If a verdict be taken at nisi prius subject 
 to a reference, though no power to certify be conferred upon the arbitrotor, still 
 the case will come within the statute depriving a plaintiff of costs who reco- 
 vers by the verdict of the jury less damages than eight dollars : Eeid v. Ashhy 
 tt al, 13 C. B. 897, In this case the first coui't of the declaration charged tlio 
 defendants with injury to the plaintiff's party wall in excavating by the side of 
 it and raisin* and overloading it. The defendants pleaded, first, as to the raising 
 and overloauing, not guilty by statute; secondly, as to the i-e^idue, payment into 
 court of £30, The plaintiff joined issue on the first plea, and replied damages 
 ultra to the second. At the trial a verdict was taken for the plaintiff for £2000, 
 subject to an award, but no power was reserved to the arbitrator to certify under 
 8 ifc 4 Vic. cap. 24. The arbitrator having directed a verdict to be entered for 
 the plaintiff on the first issue, damages twenty shillings, and for the defendant on 
 the second issue: held that plaintiff was not entitled to any costs whatever; /i. 
 "Where on a writ of inquiry in England, directed to the sheriff, the certificate 
 granted under the 3 tSc 4 Vic. cap, 24, was by the under-sheriff, it was held neces- 
 sary for him to sign it in the name of the sheriff and not in his own name: Strovd 
 V, tVatta, 3 D. (b L, 799. If the record be so framed that a right beyond a mere 
 riwht to recover damages mai/ come in question, the court in bane cannot inquire 
 whether the "judge or presiding officer " before whom such verdict shall liave 
 been obtained has exercised a sound discretion in granting a certificate: Sfiutlle- 
 
g_ 324.] CERTIFICATES FOR COSTS. 
 
 postpone the consideration of the matter, («) certifies on tbe 
 
 4129 
 
 vortk V. Cocker, 1 M. <b 6. 820. The judge or presiding officer bng a discretion 
 vested in him whether he will cerlify or not, in all cases of trespass or trespass 
 OD the case, with the exercise of which discretion no court has the right to inter- 
 fere. If an attempt at appeal be made the questions to be asked are these : Is 
 the action one of trespass or trespass on the case? Did the judge exercise his 
 discretion ? If affirmative answers must be given to both these questions there 
 ia DO power to review: Barker v. Hollier, 8 M. «fe W. 613. 
 
 (m) Immediately afterwards, ^c. The word "immediately" excludes nil inter- 
 mediate time and action ; but it appears that in this section it has not necei^sarily 
 so strict a signification: Rex v. Francis, Cas. Temp. Hardw, 114. To make good 
 tlie deeds and intents of parties it should be construed such convenient time as is 
 reasonably requisite for the doing of a thing: Pybris v. Mitford, 2 Leon. 77. If 
 IL were m.inifest that the intention of the legislature, when framing this soctiou, 
 w,is that not a single moment's interval should take place before the griinting of 
 the certificate, the courts would feel bound to submit to that declared intention: 
 Thompson v. Qibson et al, 8 M. <& \V. 281. But such cannot be the interpretation. 
 How, therefore, consistently with common sense and the principles of justice, are 
 the words " immediately afterwards" to be construed ? If they do not mean that 
 the act is to be done the very instant afl;erwards, do they mean within ten minutes 
 or a quarter of an hour afterwards ? They should be interpreted to mean " withiu 
 Buch reasonable time as will exclude the danger of intervening facts operating 
 upon tlie mind of the jud^e, so as to disturb the impression made upon it by the 
 evidence in the cause:" To. 286, per Abinger, C. B. It has been held too late to 
 apply for the certificate after application made to the master to tax full costs and 
 a refusal by him to do so : Qillett v. Green, T M. & W. 847. In an action on the 
 case for a nuisance to the plaintiff's market, which was the last case tried at the 
 assizes, a verdict was found for the plaintiff with nominal damages. The judge 
 thereupon immediately adjourned the court to his lodgings and quitted the court. 
 No application was made in court for a certificate under 3 4 4 Vic. cap. 24, but 
 the plaintiff's counsel followed the judge to his lodgings, and there, withiu n 
 quarter of an hour after the delivery of the verdict, obtained the certificate. Held 
 that it was well given: Thompson v. Oibson et al, 8 M. <fe W. 281. In one case 
 it was doubted whether the certificate could be granted after another cause had 
 been called on : Qillett v. Green, 9 Dowl. P. C. 219 ; but that doubt has been set 
 at rest by holding that, notwithstanding, the certificate may be granted : Page v. 
 Fearce, 9 Dowl. P. C. 816. And per Lord Abinger, C. B. : "I think tliat a judjo 
 need not certify before he takes another case. He surely may take time to con- 
 sider ; and can it be said that he ought to postpone every other cause until he 
 has made up his mind ? Such a course would be unreasonable and very inconve- 
 nient:" 76. 817. The effect of the decisions of Thompsony. Gibson et al, 8 M. &, W. 
 28, and Page v. Pearce, 9 Dowl. P. C. 815, is that the word " immedi.ately," in the 
 sense in wliich it is employed in the act, does not mean so soon as tlie verdict is 
 given, without any time whatever being taken for consideration, but that a reason- 
 able time fou consideration may be taken, and that a judge, if called upon to certify 
 under the act, must have some time allowed him for consideration. If the word 
 were construed to mean the moment the verdict is delivered, the judge would have 
 no time whatever to view the bearings of the case : Nclmes v. Hedges et al, 2 Dowl. 
 N.S. 352, per Patteson, J. A certificato applied for, even after one of the jurors 
 iu another cause had been sworn, and granted after the whole of them had 
 been sworn, was held to be sufficient: lb. 850. Where the judge took time to 
 consider, but before judgment entered but after the first four days of term, certi- 
 fied, it was held that the certificate was in good time : Wise v. Ilewson et al, 
 1 Prac. R. 232 ; and now that by the express terms of this section, as amended 
 by the Stal. of Out, 31 Vic. cap. 24, s. 1, the judge may postpone the consideia- 
 
430 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [8. 824. 
 
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 If Judge rio back of the Record (v") in the form hereinafter prescribed, to 
 dufeiitiaiit entitle the plaintiff to full costs : Cw) and in case such cei-tifi 
 
 to set otf liis , 1 ,1 ,1. 1 /. 1 . I 
 
 costs, unless cate DC not granted, then the defendant in such action shall 
 ties timt he be entitled <o set off his costs against such verdict and recover 
 tJed.' "" ' judgment and issue execution against the plaintiff for the 
 
 tion of the matter, and that the certificate may be given at such last-mentioned 
 time, it is appreheniled, if the certificate be moved in proper time, a liberal con- 
 struction will be put upon the section as to the time of granting it : see further 
 Jones V. Willianu, 2 D. & L. 247. 
 
 («) This was the practice as it existed before this act: see preceding note. The 
 time within which it is necessary to move the judge or presiding officer for a cer- 
 tificate does not appeo)* to be extended ; but when made, if made in proper time, 
 the certificate m.iy bo either ^'ranted on the spot or the consideration of It 
 reserved to a future time. 
 
 (w) Before this statute, f.. -Jo. '^e section 324 as it stood before the amend- 
 ment made by the Stat, of <? ' ■ ie. cap. 24, s. 1, the judge was required to 
 certify in form " that the action was really brought to try a right besides the 
 right to recover damages f^.- the trespass or grievance complained of, or that 
 the trespass or grievance compiai'ind of iU "-^spect of which tho action had been 
 brought was wilful and malicious." ''ho o.. j iorm now required to give a plaintiff 
 full costs is : "I certify to entitle the plain ti fi' ! o ful' > osts :' ' Stat. Ont. .3 1 Vic. c. 24, 
 8. 8. But it is presumed that the judge, though the form of certificate is altered, will 
 Btill be influenced in his decision in granting or refusing full costs by a consider- 
 ation, as heretofore, of the character oi the action, whether frivolous or vexatious. 
 Actions of trespass or trespass on tlie case in which less damages than forty sliil- 
 lings were recovered were, as a rule, held to be frivolous and ve:;atious. These 
 suits were exceptions to it, which were in fact brouglit to try, not merely the 
 right to recover damages, but to try a right beyond that or to vindicate the 
 plaintiff from the vexation of a wilful or malicious injury: Marriott v. Slanle;/, 
 9 Dowl. P. C. 61, per Maule, J. The object of such acts is to prevent plaintiffs 
 from bringing actions of a vexatious and litigious nature/where very little damage 
 has been sustained and there is no right in issue: Shultleworth v. Cocker, 1 M. k 
 6. 835, per Tindal, C. J. What the judge is called upon to do is to see the design 
 whicli tiie plaintiff had in instituting the suit, and if satisfied by the ccurse of the 
 evidence that the plaintiff really thought be had a right whicli came in question, 
 or which might by possibility come in issue, thougii the form of action may not 
 be fitted for that purpose, and the right did not in ^ct come in question, he has a 
 discretionary power in granting the certificate : Morison et al\. Salmon, 9 Dowl. 
 P. C. 387, per Maule, J. ; and the court will not interfere with the exercise of that 
 discretion in cases proper for its exercise : see note I to this section. The judge has 
 
 S)ower to certify where the action is for selling medicines which the defendant 
 alsely represented as prepared by the plaintiff: Morison et al v. Sglmon, 9 Dowl. 
 P. C. 387 ; or for a nuisance to tho plaintiff's messuage from the defendant's 
 factory : Shultleworth v. Cocker, 1 M. <b G. 829. But where the action was for 
 leaving dangerous instruments in the highway, it was doubted whether a judge 
 had a discretion to certify' : Marriott v. Stanley, 9 Dowl. P. 0. 59. In order 
 to justify a judge in certifying in actions for libel, he must be satisfied that the 
 conduct of the defendant arose from pertonal malice as contradistinguished from 
 malice in law, which is essential to sustain the action : Foster y. Pointer, 8 M. & 
 W. 395, per Alderson, B. ; but in actions of trespass without personal malice the 
 act may be considered so violent and outrageous as to be considered malicious 
 within the meaning of tho section: She7'tcin v. Swindall, 12 M. & W. 788, per 
 
8.325.] 
 
 CERTIFICATES FOR COSTS. 
 
 431 
 
 balance of such costs as between cttorney and. client, (x) un- 
 less tbe said Judge or presiding Officer shall certify as here- v 
 inafter provided upon the record, in manner aforesaid, that 
 the defendant is not entitled to recover his cosis in the cause 
 against the plaintiff, (y) 
 
 3S«S. (a) Nothing in the last section contained shall ThiHstmii 
 deprive the Plaintiff of costs in any action brought for a to cu tiun 
 trespass over any land, (b) waste, close, wood, plantation or '^®'*^'"'*'^*" 
 ioclosure, or for entering into any dwelling, out-building or 
 premises in respect to which notice not to trespass (c) had 
 been previously served by or on behalf of the owner or occu- 
 pier of tbe land trespassed over, or upon, or left at the last 
 reputed or known place of abode of the Defendant in such 
 action ; (d) but nothing in this or in the last preceding section uf aetlous "" 
 
 Pollock, C. B. The fact that the plaintiff prays an injunction in nn action in a 
 superior court in which an injunction may be granted is not, even after verdict 
 for plaintiff, sufficient to entitle plaintiff to recover superior court costs without 
 the certificate of the judge who tried the case, when tlie amount of damages is 
 clearly within the jurisdiction of an inferior court : Emery v. Iredale, 7 U. C. 
 L. J. 181, The action itself must be of such a nature and the equitable relief 
 sought be of such importance as to justify the judge who tried the cause in f erti- 
 fyiug for full costs : 26. 
 
 (x) Under section 324 as it originally stood in Ihe Consolidated Statutes of 
 Upper Canada, it was held that if plaintiff was entitled to no costs whatever 
 tliere could be no set-off of costs as between plaintiff and defendant: Cross v. 
 Wnterhouse, 10 U. C. L. .1. 215; s. c. lb. 320. This was felt to be an anomaly, 
 and to remove it the section v<ras amended as in the text by the Statute of Ontario 
 ill Vic. cap. 24, s. 1. 
 
 iy) See sc^Lion 328 and notes thereto. 
 
 (a) The origin of this section is Eng. Stat. 3 <fe 4 Vic. cap. 24, s. 3, 
 
 (h) The word "commons" here followed in our Stat. 16 "Vic. cap. 175, s. 26, as 
 copied from Eng. Stat. 3 &ji Vic. cap. 24, s. 3, but is intentionally omitted from 
 the section here annotated. 
 
 (c) Read " thereon or therein" in Eng. Stat. 3 «t 4 Vic, cap. 24. 
 
 {d) There is some difficulty in putting a construction upon this section. One 
 interpretation of it may be that wherever a notice in writing has been given, the 
 plaintiff shall be entitled to full costs without any certificate, although the amount 
 of damages be less than 40s. ; but if so, unless the fact of the notice appeared on 
 the face of the declaration, it would seem that there must be a suggestion on the 
 record for that purpose, which the defendant would be at liberty to traverse, — 
 or the moaning moy be that it shall be imperative on the Judge to certify where 
 a written notice has been given, whereas in other cases it is discretionary. Pro- 
 bably in order to avoid the inconvenience of former decisions the latter is the true 
 constr iction : Shei'win v. Swindall, 12 M. <fe W. 790, per Parke, B. However, where 
 in trespass for placing stumps and stakes on the plamtiff's land the defendant paid 
 40s, into court, which the plaintiff took out in satisfaction of the trespass, ancl the 
 plaintiff afterwards gave the defendant notice that unless he removed the stumps 
 
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 which might shall entitle any Plaintiff to recover costs as of an action 
 iuOTBhUn brought in a Superior Court in any case where by law his 
 ciu"t?""'^ action might properly have been brought in an Inferior 
 Court, (e) 19 Vic. c. 43, s. 312. 
 
 336. (/) Repealed by Stat. 23 Vic. cap. 42, s. 1. 
 
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 and stakes a further action would be brought against him ; it was held that leavin'r 
 the b'^umps and stakes on the land was a new trespass, and that the plaintiff was 
 entitled to full costs in an action for their continuance after the notice, though he 
 recovered less than 408. and the judge refused to certify that the trespass was 
 wilful and malicious ; and that the proper mode of obtaining the costs was by a 
 suggestion that tlie trespass was committed after notice : Bowyer v. Cook, 4 C, B. 
 236. In an action of trespass where the plaintiff recovered less damages tbaa 
 40s. and the trespass had been committed after a verbal notice not to do it, it wa3 
 held a matter of discretion with the presiding judge to certify for costs under 
 8 ife 9 Wm. III. cap. 11, s. 4, as olteredby 3 «fe 4 Vic. cap. 24, s. 2: Sherwlay. Sick- 
 dal , 1 2 M. <fe \V. 783. It has been held that if in trespass the damages recovered be 
 less than 40s. and the judge do not certify, proof that written notice not to tics- 
 pass had been previously given, will not entitle plaintiff to full costs : Daw v, 
 Boll, 15 L. J. Q. B. 32. The plaintiff in trespass for crossing a field had given 
 notice to the defendant not to trespass on the field. Defendant justified under a 
 right of way. Plaintiff traversed the right of way and new assigned. Defen- 
 dant joined issue on the right of way, and suffered judgment to go by default on 
 the new assignment. The jury found for the defendant as to the right of way, 
 and gave the plaintiff Is. damages on the new assignment. The jud^e refused to 
 make any certificate under 3 <fc 4 Vic. cap. 24. Held the statute did not apply, 
 and that plaintiff was not entitled to full costs : Bourne v. Alcock, 4 Q. B. 62. 
 And, />cr Patteson, J., "Before this action was brought defendant asserted a right 
 of way over the plaintiffs close. The plaintiff gave him notice not to trespass 
 there, that is, in effect not to assert the right he claimed. If the plaintiff had 
 succeeded on the justification his notice would have entitled him to costs ; but the 
 defendant has established his right to do what the notice forbade, Tiie plaintiff 
 says that the trespass extra viam was that which the defendant had notice not to 
 do ; but that is not so. If the plaintiff had said, * It is true you have the right of 
 way over a particular part of the close, but take care you do not go out of that 
 way,' the case would have been different. Here he has only given a notice not 
 to come upon the close at all :" lu. 625, 
 
 (e) See note u to section 324. 
 
 (y) This section, which provides that suits within the jurisdiction of county 
 courts might be brought and tried in the superior courts, subject to county court 
 costs only, was in 1860 repealed by Stat. 23 Vic. cap. 42, s. 1. It was originally 
 taken from Stat. 13 & 14 Vic. cap. 52, s. 1 ; 13 <fe 14 Vic. cap. 63, s. 78; 16 Vic. 
 cap. 177, 8. 2 ; 18 Vic. cap. 125, s. 4, and 19 Vic. cap. 43, s.'312, all of which it 
 consolidated. It is now, however, enacted that all issues of fact and assessment 
 of damages in actions in any county court may be tried and assessed, at the elec- 
 tion of the plaintiff, at any sittings of assize and nisi prius for the county in whicli j 
 the venue is laid, without any order for that purpose : Stat. Ont. 82 Vic. cap. 6, 
 8. 17, sub-sec. 2. The costs are the usual costs of the cases in the court in whicli 
 the action is brought: lb. sub-sec. 8. The judge has the same powers as to i 
 amendment of the record, adding and amending pleadings, putting off the trial, 
 reference to arbitration, and making the cause a remanet, and otherwise dealing 
 with the cause and proceedings therein as if the action had been commenced in i j 
 superior court of common law: Stat. Ont. 33 Vic. cap. 7, s. 1. 
 
 ffi 
 
 
88.327,328.] CERTIFICATES FOE COSTS. 483 
 
 327. (3) Repsaled by Stat. 23 Vic. cap. 42, b. 1. 
 
 32§. (K) 1. In case a saitof the proper competence of a in inferior 
 Conoty Court be brought in either of the Superior Courts of Actions 
 the Common Law, or in case a suit of the proper competence superior 
 of a Division Court be brought in either of such Superior "'^'^*' 
 Coarts, or in a County Court, (t) the costs shall be taxed in 
 the manner following : 
 
 2. In casb the Judge, who presides at the trial of the i' Judge 
 
 , .N ./, . . . 1. 1 A 1 1. certiHea cer- 
 
 cause, (j ) certifies in open court immediately after the verdict taiu fncts 
 has been rendered, (k) or at any future time to which he may recover full 
 
 costs, 
 
 (g) This section, which made special provision as to the county of York for 
 the trial of county court cases by a judge of a superior court of law, is, like the 
 preceding section, repealed by 23 Vic. cap. 42, s. 1. 
 
 (h) Taken from Stat, Ont. SI Vic, cap, 24, b, 2, which repealed the original 
 sectioQ S28 of the C. L. P. Act and enacted the substituted section. The superior 
 courts of law have an inherent jurisdiction over all causes, great or small. By 
 the statute of Gloucester, damages, great or small, carry costs : see note I preced- 
 ing note 313. But the legislature nas appointed inferior courts for the trial and 
 determination of smaller causes. It is therefore only proper that the time of the 
 superior courts should not be occupied in the trial of causes which can be more 
 conveniently, more cheaply, and more expeditiously determined in the inferior 
 tribunals : see Conutoek v. Moore, 6 U. C, C, P, 434, And it is necessary not only 
 to declare that such causes ought to be tried in the proper tribunal, but that the 
 party carrying it to another shall be subject to some penalty. The penalty here 
 declared is loss of costs. 
 
 (i) Full costs should not be taxed without a certificate in cases of replevin 
 more than in other cases, where for all that the verdict or determination shows 
 the action might as well have been brought in the lower as the higher court : 
 Aihton V. McMillan, 3 Prac. R. 10 ; In re Coleman v. Kerr, 28 U. C. Q. B. 297. 
 
 (i) A verdict by consent without taking of evidence or other hearing is not a 
 trial within the meaning of this section : Elmore v, Colman, 4 0, S. 321 ; Morse v. 
 TeeUel, 1 Prac. R, 876 ; Cumberlandet al v. Ridout et al, 3 Prac. R, 14. Contra : Bonier 
 v. Pretty, 9 U, C. C, P. 273, And where plaintiff without a trial recovers in a supe- 
 rior court an account within the pecuniary jurisdiction of an inferior tribunal 
 defendant ia not entitled to set oflf costs under this section : Johnson v. Morley et al, 
 9 U. C. L, J, 263. In an action of trover for a deed, the plaintiff recovered a 
 verdict for £24 16b. It was ordered on motion that a new trial should be granted 
 unless plaintiff would reduce hia verdict and consent to accept only nominal 
 damages, and to this he assented. The court under these circumstances refused 
 an application to compel plaintiff to enter judgment and tax his costs, or allow 
 the defendant to do so for him in order to set off costs of defence, because the 
 verdict was not reduced till after the trial and plaintiff had no opportunity to 
 apply for a certificate, which perhaps he might otherwise have obtained : Ginn 
 v,&o«, liU.CQ. B. 642. 
 
 (t) By this is meant "within a reasonable time:" Page v. Pearee, 8 M, <fe W, 
 
 «77; Makoney v. Zwiek, 4 0. S. 99 ; see also Falls et al v. Lewis, E. T. 1 Wm. IV. Ma. 
 
 and Paltm v. William*, H. T. 3 Vic, MS. R, «t H. Dig. "Costs," i. (3) 1 ; Malloeh 
 
 1. Johnston, 4 U. C. Q. B. 362. The certificate must be moved at the trial: 
 
 28 
 
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 THE COMMON LAW PROCEDURE ACT. [g. 32f> 
 
 then postpone the consideration of granting or refusing the 
 certificate, (/) that it is a fit cause to be withdrawn (m) from 
 the County Court or Division Court, as the case may be and 
 brought in the Superior Court or a County Court, as the case 
 may be, (n) the plaintiff shall recover his costs of suit accord- 
 
 Hamilton v. Clarice, 2 Prac. R. 189 ; Bonier v. Pretty, 9 U. C. C. P. 273. Whether 
 or not the motion may be made after another trial has been commenced Ims not 
 yet received judicial determination : Marshall on Costs, 2nd ed. \9. Clenrlj- it \% 
 too late after the trial of another cause has been finished : McKee v. Irwine, 1 U. C. 
 Q. B. 160. But may be made on the same day and before the trial of nnother 
 civuse, notwithstanding an adjournment of the court: Thompson \, Gibxonelul 
 8 M. & W. 287 ; or even after jury sworn in the next succeeding cause ; A'clmn v. 
 Hedges et al, 2 Dowl. N. S. 350. It is too late after the lapse of several days : Gllhit 
 V. Green, 7 M. «fe W. 347. If moved in proper time it is usually by agreement 
 between the parties not obtained till afterwards : Serrell v. The Herbyshire, Stafford- 
 shire <£' Worcestershire Junction R. Co. 10 C. B. 910 ; Wise v. Uevaon et al, 1 Prac, R, 
 232 ; Linfoot v. O'Xeill, 6 0. S. 343. The judge may examine witnesses for the pur- 
 pose of satisfying his mind as to the propriety of granting the certificate : Ihrn!- 
 cock v. Bethunc, 2 U. C. Q. B. 386. It is usual for the judge in Jiis notes at the 
 time of the application to make a note of it, and it is not usual to depart from the 
 judge's notes as a record of what took place at the trial : Gibbs v. Pike, 9 M. & W. 
 360, per Lord Abinger, C. B. But in one case where on an application to rescind 
 the judge's certificate it was asserted on the one side that the certificate iiad been 
 moved and on tlie other denied, and the judge's notes contained no entry of it, 
 the' court referred to the judge (McLean, C. J.) as to the fact, and ho, having 
 reported in favor of the plaintiff's contention, the certificate was sustained, 
 McNaught v. Tarnbull, C. P. Temp., Richards, C. J., not reported. The riglit of 
 a judge having granted a certificate liimself to rescind it is doubtful: W'lmlhij \. 
 Williamson, 7 Dowl. P. C. 253 ; see further note u to section 324 of this act. 
 
 (I) This is new. If the application for the certificate be made in proper time 
 the disposal of the application may^bo made at the time of the application, or tiio 
 consideration thereof be postponed to a future time : see Small v. Hancy, l U. C, 
 L. J.N. S. 255. 
 
 (m) The word " withdrawn" is not to be taken literally. It means " not insti- 
 tuted," as if enacted that " the cause is a fit one to have been instituted in the 
 superior court :" Gardner V. Stoddard, Dra. Rep. 102, per Macaulay, J. The word 
 " withdrawn" is scarcely appropriate — the intention would have been better 
 expressed by the word " witnneld," for tliat is the real meaning of the word m 
 used in the enactment: per Robinson, C. J., lb. 110. 
 
 («) The amount of the verdict in each case is prima facie against plaintiff's 
 right to full costs. The burden is cast upon him to make a proper case for a 
 certificate: see Gardner v. Stoddard, Dra. Rep. 101; King \. Such, 5 0. S. 81; 
 Washburn v.Longley, 6 O. S. 217 ; Hinds v. Denison, 1 Cham. R. 194; Hamilton^. 
 Clarke, 2 Prac. R. 1 89 ; Broim v. McAdam, 4 Prac. R. 54. If a plaintiff in good faitli 
 and on probable grounds seek to recover an amount beyond that v hich the jury 
 award him, he has a right to the exercise of the discretionary power in his 
 favour by tlie judge. The object of the enactment is not to inflict injustice, but to 
 punish wilful contravention. Wherever it appears to the satisfaction of the judge 
 that the plaintiff did sincerely urge and upon reasonable grounds a demand for 
 debt or damages greater than could be recovered in the inferior court, although 
 a jury may have given a verdict for a sum within the jurisdiction of the inferior 
 court as to amount, it is usual for the judge to certify. Where there is no precise 
 
 ? 
 
8.32S] 
 
 CERTIFICATES FOR COSTS. 
 
 485 
 
 in^ to tiif practice of the Court in \vlji«h the action is brought, 
 ill like iiiimnor -^nd subject to the like deduction or set-off for 
 (jiists of issues upon which the dcfciidunt may have succeeded, 
 (IS ho would have done and would have been subject to in case 
 liin suit had been of the proper competence of the Court in 
 which the action is brought. 
 
 compntalinn to be nrriveil at on tlie ovidonco, and where the evidence wcnikl have 
 wiirmiitwl (I verdict be3-ond the mark as well as below, it would be hard indeecl 
 tliitt tliu phiintiff should be compellod at the peril of losing his costs to relinquisli 
 nliir;,'t' portion of what he may fairly claim, lest tho jury, preferring the testi- 
 mony of one witness to another or forming an arbitrary estimate of their own, 
 may bring his verdict within tho lower jurisdiction. The legislature never 
 intendi'il to work such hardship. So to construe tho act as to convert a remedial 
 miasiiro into one of oppression, and that often to the detriment of the person in 
 the rii.'ht and to tho advantage of the wrong doer. Take a case for example. A 
 plaintllF sues In trespass to recover damages for a liorso taken from him, and 
 havinir ^iven $(10 for the horse and honestly valuing him at that price, brings an 
 action ill the county court. Tho jury, upon contradictory evidence as to value or 
 from lenity to tho defendant, find a verdict only for #40. Would it not 'ie hard 
 that lin should lose his costs, when if tho jury had chosen to value tho horse one 
 sliillin;' iiigher it would have shown him to have beyond all question rightly 
 resorted to tiic county court, and when the valuation of the horse ot ^(50 may be 
 more inconsistent with evidence than $40 ? The verdict of $40 may be correct ; 
 plaintilt', rather than have further litigation, may be satisfied with it; but in such 
 a case to refuse him a certificate for costs would be, in all probability owing to 
 fet-otfof costs, to deprive him of every farthing of his verdict, and entitle the 
 wionijcioer to keep his horse. Take another case : A builder brings his action 
 upon an agreement for work at a specified price, which would entitle him to §120. 
 lie proves tiie agreement and the work done under it, and thus makes out a case 
 which lie could not without abandoning the excess have proved in a division 
 court. Having therefore necessarily brought his action in tho county court, it 
 may hiippen that defendant calls a witness to declare his opinion thot the work 
 is ill duiic, or hat the materials arc bad, &ud thus make out a claim for reduction 
 in value. Tho plaintiff's witnesses swear the contrary. Upon evidence which 
 would warrant a determination either way, the jury see fit to reduce the price 
 and give a verdict for $80. Ought it to follow in such a case that plaintiff must 
 lose his costs, because he did not foresee that defendant would produce such 
 witnesses as he did, and that the jury would decide tho case just as they did, not- 
 withstanding his own testimony to the contrary ? It may in truth bo rather hard 
 that tlio decision should be against him upon the amount of damages, but to deny 
 him a certificate would be to say ho had no good reason either to advance his 
 claim or produce his witnesses. It seems reasonable that plaintiff should lose his 
 costs only where there is good reason to suppose that he proceeded unnecessarily, 
 if not vexatiously, in the Tughor court, for a demand which he might have recov- 
 ered in the lower jurisdiction. The enactment is directed, not against cases of 
 accidental verdicts, but of wilful contravention. The power to certify is granted 
 by the legislature for the protection of the plaintiff who, in good faith and with 
 reasonable grounds of success, enters a demand for more than he recovers. It is 
 easy to understand why a plaintiff suing in a county court on a promissory note 
 for ^80 should be deprived of costs, but it is difficult to see any analogy between 
 such a case and cases of the nature above supposed : see remarks of Robinson, 
 C. J. in Stratford v. Sherwood, C O.S. 169. Each case must to a very great extent 
 depend on its own peculiar circumstances. But in some cases rules have beea 
 
 ■ III 
 
 »»' -f 
 
 
 
 Mi 
 
4S6 
 
 TUE COMMON LAW PROCEDURE ACT. 
 
 [s. 328. 
 
 It Judge 
 certilli'H cer- 
 tain fllCtH, 
 
 pliiiiitift' to 
 recover 
 costs of 
 court in 
 wliifli iK'tlon 
 Bhiiuld have 
 been 
 brought. 
 
 3. In case the Judge, viho presides at the trial of the cause 
 certifies at the time aforesaid that the plaintiff had reasonable 
 ground for believing he had the right of withdrawing hi/i 
 cause from the County Court, or Division Court, as the cmc 
 may be, and bringing it in the Superior Court, or a Countj 
 Court, as the case may be, and that the defendant, \fithont 
 just reason, defended the same, the plaintiff shall recover hit 
 costs of suit according to the practice of the Court in which 
 the action should have been brought in like manner, and 
 subject to the like deduction or set-off for costs of issues 
 upon which the defendant may have succeeded, as he would 
 have done, and would have been subject to in case he had 
 brought his action in such Inferior Court, (nn) 
 
 
 "Hi- 
 
 mn 
 
 
 
 m 
 
 laid down for the exercise of the discretionary power conferred by the section, 
 Thus if a debt or ascertained demand exceeding the pecuniary jurisdictioo of d 
 county court be reduced below tlie amount by payment before action, the certifi- 
 cate, except in very special cases, will be refused : Donnelly y. Oibion, 6 O.S. 704 ; 
 Mearna v. Oiibtrtaon, 6 0.8. 673 ; Brown v. McAdam, 4 Trac. R, 64. But if the 
 proof of payments involve matters difficult of investigation, or if made after 
 action brought, it is usual for the judge to certify : Mearni v. Oilbertson, 6 O.S. 
 678 ; Kilborn v. Wallace, 8 O.S. 17 ; Turner v. Dtrry, 6 Ex. 868. So if the trial 
 of the cause involve difficult questions of law: Thompion y. Crawford tl al, 
 9 U. G. L. J. 262. So if the jurisdiction of the inferior court be doubtful: 
 Fithcr et al v. The City of Kmgtton, 4 U. C. Q. B. 213. Or where there is 
 no judge to preside over the court: Jenningt y. Dingman, T. T. 4 <k 6 Vic. 
 MS. R. <k H. Dig. "Costs," i. (1) 18; IF««i« y. Merriton, lb. "Costs," I (1) 
 14; but see Sutherland v. Tiadale, 1 Cham. R. 218. Or a judge who is a party 
 to the cause: Jones et al v. Wing, 8 O.S. 86. Or as to division courts, if neces- 
 sary to issue a commission to examine witnesses : Comttoek y. Leaney, 3 U. C. 
 L. J. 18. But it would seem that it is not of itselfla ground for a certificate 
 that defendant's set-off could not be tried in the inferior court: Oooderham r. 
 Chilver, 6 O.S. 490. Where plaintiff, suing in covenant only, recovered £2, full 
 costs were refused: Gardner y. Stoddard, Dra. Rep. 101. So where plaintiff in 
 covenant recovered only £40, and there was nothing special in the case: Btattit 
 et al y. Cook, 6 O.S. 217. A mere surmise that the consideration of a promis- 
 sory note will be disputed is not enough: Cronyn y. Probat, lb. 192. Nor the 
 fact that plaintiff is an attorney suing for his bill since privilege of suing in the 
 superior courts is abolished : Strachan et al y. Bullock, 2 U. C. Q. B. 882. The 
 court, on appeal, may inquire if the case was a proper one for the exercise of dis- 
 cretion, but will not review the exercise of discretion: see Barker y. Hollitr, 8 M. 
 A W. 618; ShuUleworth y. Cocker, 1 M. <b G. 829. Until the passing of the 
 Statute of Ontario there was no power in a superior court judge to certify for 
 county court costs where an action was, as to amount, recovered within the juris- 
 diction of a division court: see Cameron y, Campbell, 11 U. 0. Q. B. 169 ; Harold 
 V. Stewart, 2 U. C. L. J. N.S. 246. But now the certificates may be as follow: 
 " I certify to entitle the plaintiff to full costs;" or, "I certify to entitle the plus- 
 tiff to county (or division) court costs:" Stat. Ont. 81 Vic. cap. 24, s. 8. 
 
 (nn) Until the passing of the Statute of Ontario there was no power to oertily 
 to prevent the defendant dedactbg costs. The certificate in aach case may be u 
 
, 329.] 
 
 COSTS WHERE MULTIPLICITY OF SUITS. 
 
 437 
 
 4, In ca80 the Judge, who prosiJea at the trial, shall not irjii.iKo.io 
 certify as aforesaij, tho plaintiflf shall recover only County i.iiiiniiii to' 
 Court costs, or Division Court costs, a^ tho cnsc may be, and i! 'ii"i!iiirt 
 the defendant shall bo entitled to tax his costs of suit ns "',',;i *i",''.n. 
 between attorney and client and so much thereof as exceeds 'ti'',M'!"H!'t. 
 the taxabk '" of defence which would have been incurred "" '''" ""^' 
 in the Co ^ Jourt or Division Court, shall, on entering 
 juilgincnt be set-off and allowed by the taxing oflScor against 
 the pluiuliff's County Court or Division Court costs to bo 
 taxed, or against tho costs to be taxed, and tho amount of tho 
 verdict if it be necessary, and if the amount of the costs so 
 Eet-o(f exceeds tho amount of the plaintiff's verdict and taxed 
 ccuits, the defendant shall be entitled to execution fur the 
 excess against the plaintiff, (o) 
 
 389. (p) When several suits are brought on one bond, Cost« ro.ov- 
 
 . 1 .11 o 1 1 eiablL' ill oue 
 
 recognizance, promissory note, bill of exchange, or other suit uuiy. 
 iostrument, or when several suits are brought against the 
 maker and endorser of a note, or against the drawer, acceptor 
 or endorser ' a bill of exchange, (q) there shall be collected 
 
 follows:—' ^ :iy to prevent the defendant deducting costs :" Stat. Ont. 31 Vic. 
 cap. 24, 6. 3. And since tlio statute it has been held by a judge in chambers that 
 where plaintiff had received a certificate entitling him to county court costs theru 
 could not be a set-off of costs on such certificate, altliough the certificate prevent- 
 ing defendant deducting "Costs had not been obtained: i)ed qu. see Moore v, I'rice 
 rta/, 6 1'rac. R. 1. 
 
 (o) Tt was made a question, owing to inaccuracy of language in the old statute, 
 whether defendant could set-off his taxed costs against the plaintiff's taxed costs 
 and -erdict, but it was held that he could do so: Cameron v. Campbell, VI U. C. 
 Q. B, 109. This statute, which provides for a set-off of costs against the plain- 
 tiff's " costs to bo taxed," or " against the costs to be taxed and the amount of 
 the verdict, if it be necessary," removes all question about the point. So before 
 this statute it was held that where plaintiff was not entitled to any costs there 
 could be no set-off of costs on the part of the defendant: Crosi v. Waterhouie, 
 10 U. C. L. J. 216 ; b. c. 2'' U. C. Q. B. 690. In other words it was held that 
 there could be no set-off oi costs against a mere verdict, and this absurdity fol- 
 lowed, that a plaintiff with a small verdict and no costs was in a better position 
 than a plaintiff with a small verdict and some costs. The Statute of Ontario is 
 intended to remove this absurdity. Whether it has done so or not remains to ba 
 decif!.!d. It does not in terms provide for a set-off against " plaintiff s verdict " 
 vflicre plaintiff is not entitled to tax any costs. Where a plaintiff without a trial 
 (i. e. by a reference) recovers in a superior court an amount, with the jurisdiction 
 ^ to amount of an inferior court, there can be no set-off or deduction of costs 
 under 'hia section : see note J, ante, 
 
 (p) Taken from repealed Stat. U. C. 6 Wm. IV. cap. 1, s. 1. 
 
 (?) This statute is inapplicable to the case where one of the parties to the note 
 sued ou it at the time of the commeucemeut of the suit out '^f the jurisdiction of 
 
 ^1 ,»s . 
 
 "*.M 
 
438 
 
 THE COMMON LAAV PROCEDURE ACT. [SS. 830 331 
 
 iA 
 
 ■41 
 
 m 
 
 Mt i ." 
 
 I ' 'SIS 
 
 1 ^. 
 
 1 i t-iS 
 
 fA 
 
 An<l ilifi- 
 liiirsi'iiii'iit 
 in otluTs. 
 
 Not to ox- 
 ti'iid to iii- 
 terlocmtoiy 
 cost. 
 
 Oosts ill ao 
 tiotisii;,'!iilist 
 Clerks ami 
 HaililTs of 
 Divisiiiii 
 Courts. 
 
 Revision of 
 tiixation of 
 
 rosts. 
 
 or recovered from the Defendant the costs taxed in one suit 
 only at the election of the Plaintiff, and the actual dLsburse- 
 nients only in the other suits ; (»•) but this provision shall 
 not extend to any interlocutory costs in the progress of a 
 cause, (s) 5 Wm. IV. c. 1, s. 1. 
 
 330. (0 In case any suit be brought in any of Her 
 Majesty's Courts of Record in respeot of any grievances com- 
 niitted by any Clerk, Bailift or Officer of a Division Court 
 under colour or pretence of the process of such Court, («) 
 and the Jury upon the trial find no greater damages for the 
 Plaintiff than ten dollars, the Plaintiff shall not have costs 
 unle.ss the Judge certifies in Court upon the back of the 
 Record, that the action was fit to be brought in such Court of 
 Record. Qv) IC & 14 Vic c. 53, s. 108. 
 
 331. (a) Either party may as of right, upon giving two 
 days' notice to the opposite party, have the taxation of costs 
 
 the court: T/ie Bank of British North America v. Elliott, G U. C. L. J. 16. So 
 innpijlicnlile v.licre plaintiff sued on the same declaration for two promissory 
 notes, tht parties to which were different, but at the trial, owing to an accident, 
 was forced to enter a nolle prosequi as to one of tho notes : Geddes v. liugers, 5 U. 
 C. Q. B, 1. 
 
 (r) If there be two endorsers on a promissory note, and the liolder of the note 
 bring several actions again.st them, he will bo entitled to tax the costs in one suit 
 only at his election, and disbursements in the other: Shuter v. Pee, 1 U. C. 
 Q. B. 292. So where plaintiff commenced separate actions against the acceptor 
 and indorscr of a bill of exchange, and the acceptor paid the amount of the el.iira 
 against him, but without tho costs, and judgment was entered and cxcciitioii 
 issued against him for their amouL'i and the costs of the suit against the indorsee?, 
 the court ordered the writ to bo restrained to tho costs of tho acceptor iilone: 
 Gilhfpie et al v. Cameron, 3 U. C. Q. B. 45. 
 
 (s) Tho costs of interlocutory proceedings in a cause, not otherwise provitVd 
 for, ore in general allowed as costs in tho cause: I'ui/h v. Kerr, G M. t^ W. 
 Mummery v. Campbell, 2 Dowl. P. 0. 798. 
 
 (0 Taken from repealed Stat. U. C. 13 «fe M Vic. cap. 53. s. 108. 
 
 («) This section is designed peculiarly for the protection of , boiiilTs, nnd 
 
 other ofTicers of a division court, as against trifling or vexatiDUs see fiirliier 
 
 Con. Stat. U. C. cap. 11), S3. 195, 106, 197, 198. 
 
 {y) The rule is that in tho event of the jury finding no greater nt of dfini- 
 
 ages for the plaintiff than $10, tho plaintiff shall not have cost.s. Ti. .)nus, there- 
 fore, to sustoin the exception in favour of a certificate is in such case cast iijitm 
 the plaintiff. It is not said when the certificate is to be askod, but it is pre.sunud 
 immediately after the trial, as it is provided that the judge is to certify in eoiirt, 
 upon the back of the record : sec note m to section 324, and noto k to sectiou H'28. 
 
 (a) Token from C. L. P. Act, 1850, section 12. 
 
g 332.] COUNTY COURT COSTS. 439 
 
 by any Deputy Clerk oi' the Crown and Pleas revised by the 
 principal Clerk of the v^ourt wherein the proceedings have 
 been hadj (b) and the Court or a Judge may by rule or 
 gammons, call upon the Deputy Clerk who has taxed any wiim no- 
 Bill, to shew cause why he should not pay the costs of revis- liniiif to bu 
 in<T his taxation and of the application, if in the opinion of with costs, 
 the Court or Judge, on the aflB davits and hearing the parties, 
 Buch Deputy Clerk was guilty of gross negligence, or of wil- 
 fully taxing fees or charges for services or disbursements 
 lar'^cr or other than those sanctioned by the Rules and Prac- 
 tice of the Court, (c) 19 Vic. c. 43, a. 12. 
 
 THE JUDGES MAY FRAME A TABLEIOF COSTS FOB COC.VTY COURTS. 
 
 333. (d) The Judges of the said Superior Courts, or jikI^ts of 
 any three of them (of whom one of the Chief Justices shall i',m'it!.'moy' 
 bo one), may, from time to time, frame a Table of Costs for i'r"c'?sts' " 
 the several County Courts, and ascertain, determine, declare cuurts.'"*^ 
 and adju(3gc all and singular the fees allowed to be taken by 
 
 (i) The Inte Mr, Justice Burns was of opinion that a revision nnder tliis section 
 could onl^ bo obtained on judge's order: se*- Cochrann v. Scott et al, 3 Pnic. K. 
 ,".2. But the practice is to have tlic costs revi;**. as a matter of course upon glv- 
 inj; two days' notice to the opposite party. This 'n done, in the language of '.ho 
 suction, " as of riglit." Tiicre can be no revision under this section of a bill tr.wd 
 by n de[)nty clerk of the crown unless taxed in a can^e in court: Bouchier et al v. 
 ration ct al, 3 U. C. L. J. 108. And certainly not if the parties have settlec^ it: 
 lb. Taxing officers should not allow any itt-ms for which there are not i)ropcr 
 vouchers, and these vouchers (except briefs, Ac.) sfaoald be tiled : Wuaon v. Moulds, 
 4 rnic. 11. 101. On revision the iiiast<ir is not to allow any items which are not 
 veritit'd by vouchers which have betn filed on Xina original taxation : lb. 
 
 (c) This provision for the summary puni.ehrocnt of deprity clerks, if not in the 
 nature of a penal enactment, will probably b« con«trtied stricti}' by the courts, 
 mill unless " ijrosi negligence" is brought home to the "guilty" party, the coni- 
 lilainiuit will be left to his remedies at common Uiw. Indeed, as the deputy clerk 
 in taxing costs occupies a yuaai judicial authoritr — little short of what would sns- 
 triln a criminal proceeding, would, it is appn?!»ende»J, move the summary and 
 ria;orous interference of the courts. NevertL"r5«*», the provision is a wise one. 
 The power given for the punishment of gross or wilful misconduct could not bo 
 more safely reposed than in the " court or a jud^," The appearance of such an 
 crmctinent in the statute book is, to some t'xt*-nt, cvidenot' tiiat the evil of hasty 
 and ill-judged taxations by deputy clerks has not b«wn unknown to the courts. In 
 niiy view of the matter, it is extremely 'mfwrtant that such deputies sho\dd act 
 ou uniform principles in the taxation of costs, and have ample materials to guide 
 thcni, subject, as they will bo, to stringent regulations in the discharge of inulti- 
 farious duties. 
 
 [d) Taken from the County Courts Amendment Act of 18ri7, section R, before 
 t!ie passing of which the ))ower of the judges of the »iqK»rior courts to moke rules 
 /or county courts was doubted : Charci v. Lout, 2 U. C. L. J. 227. 
 
 
 1-1 J 
 
 V'/^ : 
 
 S5;ri 
 
440 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 [s. 333. 
 
 m 
 
 
 
 r'*l»f| 
 
 Sail 
 
 0. 
 
 if- 
 
 ^'^iir 
 
 ^ EC -( £ 
 
 Counsel, Attorneys, Sheriffs, Coroners and Officers of the said 
 Courts respectively, in respect of any business done or trans- 
 acted in the said County Courts, in all matters, causes, and 
 proceedings depending in the said Courts, or before the 
 Judges thereof, in all actions and proceedings within the 
 jurisdiction of such County Courts or of the Judges ther^ 
 of; (e) and the costs and fees authorized by such table or by 
 any amended table from time to time made, and no other or 
 greater, shall be taken or received by Counsel, Attorneys, 
 Sheriffs, Coroners, or Officers of any of the said Courts, for 
 any business by them respectively done in the said Gonnty 
 Courts or before the Judges thereof; and the said Judges so 
 framing or altering such Table of Costs may, if they think fit, 
 associate with them, in framing or altering such table, any 
 one of the County Court Judges appointed under the sixty- 
 third section of the Division Courts Act, for making rules for 
 the Division Courts. 20 Vie. c. 58, s. 8. 
 
 THE JUDGES MAY MAKE RULES. (/) 
 
 (e) The powers conferred are :— • 
 
 1. To frame a table of costs for the several county courts ; 
 
 2. And ascertain, determine, declare and adjudge all and singular the fees 
 allowed to be taken by counsel, attorneys, sheriffs, coroners and officers of the 
 said courts respectively, do. 
 
 And this may be done from " time to time," So they may extend and apply to 
 the several county courts r.U or any of the rules and orders at any time made 
 under this act, with and under such modifications as they may deem necessary, &c. : 
 section 839. On 25th August, 1867, there was framed a tariff of fees and rules 
 for the county courts, in accordance with this section. The practice of all the 
 common law courts of record in Ontario, both of superior and inferior jurisdiction, 
 is now as nearly the same as the differences of jurisdiction will permit. 
 
 (/) The power of superior courts of common law to make regulations for the 
 practice in their courts, so long as not inconsistent with some expres'i statutory 
 provision, seems never to have been doubted. A distinction, however, appears 
 to exist between practice properly so called and pleading. The distinction is evi- 
 denced by the language used in the English Common Law Procedure Acts. The 
 act of 1862 is intituled "An Act to amend the Process, Practice and Mode of Plead- 
 ing in the Superior Courts of Common Law," Ac. Tiio act of 1854 in intituled 
 " An Act for the further amendment of the Process, Practice and Mode of Plead- 
 ing, «fec." In the preamble to the act of 1852 it is recited that " the Process, Prac- 
 tice and Mode of Pleading in the Superior Courts of Common Law at Westminster 
 may be rendered more simple and easy," Ac. Whatever the reasons for the dis- 
 tinction may be, it is evident that throughout the Eng. C. L. P. Acts a line is 
 drawn between process, practice and mode of pleading. Our C. L. P. Act, how- 
 ever, is simply intituled " An Act to regulate the procedure of the Superior Courts 
 of Common Law and of the County Courts." 
 
8. 333.] 
 
 RULES OF COURT. 
 
 441 
 
 333. (f/) The Judges of the Superior Courts of Common 
 Law, or any four or more of them, of whom the Chief Jus- 
 ticed shall be two, (Ji) may from time to time make — 
 
 1. Such orders and rules as they deem fit respecting the 
 manner of justifying and perfecting bail when taken by Com- 
 missiuners of either of the said Courts, and respecting the 
 notices to be given previous to justification, the attendance of 
 bail before a Commissioner or a Judge, and the affidavits or 
 examinations to be required, and any other matter or thing 
 which to them seems expedient; (t) and also, 2 Geo. lY. c. 
 1, 8. 41. 
 
 2. All such general rules and orders for the government 
 and conduct of the Ministers and Officers of their respec- 
 tive Courts in and relating to the distribution and perform- 
 ance of the duties and business to be done and performed by 
 them; 0*) and also, 12 Vic. c. 63, s. 32. 
 
 3. All such general rules and orders for the effectual exe- 
 cution of this Act, so far ms respects such Courts, and of the 
 intention and object thereof; (k) and 
 
 4. For fixing the fees and costs to be allowed for and in 
 respect of the matters herein contained and the performance 
 thereof; and 
 
 5. For apportioning the costs of issues ; (m) and 
 
 6. For the purpose of enforcing uniformity of practice in 
 
 Power to 
 make rulei. 
 
 Respecting 
 the justifi- 
 cation of 
 bail takcii 
 by Commis- 
 sioners. 
 
 Respecting 
 the duties of 
 the Officers. 
 
 All neces- 
 sary general 
 rules. 
 
 Respecting 
 fees. 
 
 Apportion- 
 iug costs. 
 
 (g) Tnken from Eng. Stat. 15 & 16 Vic, cap. T6, s. 223. 
 
 (A) The Eng. C. L. P. Act reads : " It shall be lawful for the judges, &c. or any 
 (iglit or more of them, of whom the chief justices of each of the courts shall be 
 three," Ac. 
 
 (i) See R, G. pr. 66-91, inclusive. 
 
 (/) See R. G. pr. 144-153, inclusive. 
 
 (k) The power here conferred is to "mate general rules and orders for the effi- 
 cient execution of this act." &c. Immediately following there is power given to 
 make rules and orders for subjects of practice specifically mentioned, as " for fix- 
 ini5 the fees and costs to be allowed," <fec. These rules, whether general or par- 
 ticular, are clearly to be made " for the effectual execution of this act and of the 
 intention and object thereof." 
 
 (I) See Schedule B to N. Rs. 
 
 (m) See R. G. pr. 61. 
 
 p. 
 
 tii: 
 
m.] 
 
 ''iH 
 
 li- 
 
 
 l^- 
 
 f'in^ 
 
 442 
 
 Uniformity 
 ill tli6 iilluw- 
 nn('(! of 
 costs. 
 
 To make fur- 
 ther iiltcra- 
 tions ill 
 iiioilc of 
 ]il(5a(liug, 
 &c. 
 
 THE COMMON LAW PROCEDUEE ACT. [SS. 334, 335. 
 
 the allowanco of costs in the said Courts, (n) as in their 
 judgment may be necessary or proper, and for that purpose 
 may meet from time to time as occasion may require, (o) 
 19 Vic. c. 43, s. 313; 12 Vic. c. 63, s. 32. 
 
 334. iq) And the said Judges, (r) or any four or more 
 of them, of whom the Chief Justices shall be two, (s) may 
 also by any rule or order from time to time (<) by them made 
 in Term or in Vacation, make such further alterations in the 
 time and mode of pleading in the said Courts (u) and in the 
 mode of entering and transcribing pleadings, judgments and 
 other proceedings in actions at law, and in the time and man- 
 ner of objecting to errors in pleadings and other proceedings, 
 and in the mode of verifying pleas and obtaining final judg- 
 ment without trial in certain cases, as to them may seem 
 expedient, (v) 19 Vic. c. 43, s. 313. 
 
 33t{- (a) All such Rules, Orders and Ecgulations shall, 
 
 " (n) The Eng. C. L. P. Act here continues, " and of ensuring, as far as mny be 
 practicable, an equal divlsioa of the business of taxation among the masters of 
 the said courts." 
 
 (o) The powers conferred are very extensive ; but it is a question whether they 
 authorize the judges to make rules overruling the G. L. P. Act or in any way 
 altering its provisions, though in the opinion of the judges necessary for the 
 effectual execution of the act: see Rowberry v. 3Iorgan, 9 Ex. 730. 
 
 (g) Taken from Eng. Stat. 15 &, 16 Vic. cap. 76, s. 223. 
 
 (r) The Eng. C. L. P. Act reads: "And it shall be further lawful," Ac. The 
 inference is that tlie section proceeds to confer powers such as are not conferred 
 by the previous part of the section. The remainder of the section here annotated 
 is taken from Eng. Stat. 13 ife 14 Vic. cap. 16, which, never having been in force 
 in this Province, is specifically enacted. In the Eng. C. L. P. Act it is simply 
 provided that " it shall be lawml for the judges .... from time to time to exercise 
 all the powers and authority given them by Stat. 13 & 14 Vic. cap. 16, with 
 respect to any matter in the C. L. P. Act contained relative to practice or plead- 
 ing:" Eng. C. L. P. Act, 1852, section 223. 
 
 («) See note h to section 333. 
 
 (<) Within five years, «fec. was the limitation in the C. L. P. Act, 1856, sec. 313, 
 
 («) " To make alterations in the time and mode of pleading," Ac. The power 
 to make alterations in tlie time of pleading, which is a power neither conferred by 
 Eng. Stat. 3 «fe 4 Wm. IV. cap. 42, s. 1, nor 13 &, 14 Vic. cap. 16, would seem to 
 contemplate alterations at variance with the C. L. P. Act, which makes provision 
 lor the time of pleading : b. 82, et seq. 
 
 (v) With the exception pointed out in the previous note, this part of tlie sec- 
 tion is an enactment of Eng. Stat. 13 Vic. cap, 16. 
 
 (a) Taken from Eng. Stat. 15 A 16 Vic. cap. 76, s. 223. 
 
 
s. 33G.] 
 
 RULES OF COURT. 
 
 443 
 
 immediately upon making the same, be transmitted to the stuii rules, 
 Governor and be by him laid before both Houses of the Par- laiailVore 
 liamcnt of this Province, if Parliament be then sitting, or if u'l' I'luUa"'"'' 
 Parliament be not sitting, then within twenty days after the ""^"*" 
 next meeting thereof; (6) and no such Rule, Order or Regu- 
 lation, shall have effect until three months after the same has 
 been so laid before both Houses of Parliament, (c) 19 Vic. 
 c, A s. 313. 
 
 336. (d) Every Rule, Order and Regulation so made An.uiionto 
 sliall, from and after such time as afcesaid, (e) be binding ]Z li'ii'tho^' 
 and obligatory on the said Courts and on all Courts of Error ^'"'^'^^' *"=• 
 and Appeal in this Province, into which the judgments of 
 tlic said Courts or either of them may be removed, (/) and 
 shall be of like force and effect as if the provisions contained 
 
 (J) And all such rules, <fcii. A question might be raised whether the rules 
 ink'iuled are those for which provision is made in section 333 as in section 331. 
 Tlioiii,'h the words of the section might bear such a construction, it would be a 
 cnnstiuction quite at variance with the Eng. C. L. V. Act. Both the Eng. C. L. 
 1'. Act and our C. L. P. Act provide for at least two sets of rules — the one for 
 practice, the other for pleading. It is intended that the former shall take effect 
 fnim t!\e time of their promulgation, but the latter only after having been laid 
 kfoi'u parliament for a specified period of time. Such was the view taken by the 
 iiiil!,'es of this Province, who, in issuing t!ic rules of Trinity Term 185(5, made the 
 lii'5tilivision of the rules relating to practice take effect immediately, but declared 
 that tlie second division relating to pleading should not take cflect until Easter 
 Term 1S57. 
 
 (c) TIio object of submitting the rules to the legislature is that they may be 
 citkr confirmed or rejected as the legislature in its wisdom may see fit. This 
 presumus an inspection if not a critical examination of the rules submitted. But 
 tlie presumption is not supported by facts, and the form of sul)mission is known 
 to liu idle and useless. The rules in general provide for matters of practice in 
 dt-'tiiil, and are made by men fully competent, from knowledge and position, to frame 
 tlitiii propei'ly. This is more than can be said of any mixed body of men such as a 
 pariianieiit, of whom few members are lawyers. The majority have neither the 
 disposition nor capacity to revise rules of court made by the judges of the courts. 
 I'mlcr these circumstances the wisdom of enacting that " no such rule, <fec. shall 
 liave cdect for three months until after the same shall have been laid before both 
 iioiisos of i)arliament," difficult of discernment. In Ontario now there is only one 
 house of parliament, known as the Legislative Assembly: B. N. Am. Act, 1867, 
 ss. 63, 70. 
 
 ((/) Taken from Eng. Stat. 13 Vic. cap. 16. 
 
 ('.) i. e. After the expiration of three months, &c., as mentioned in the last 
 
 section. 
 
 (/') There is only one court of Error and Appeal in this province : Con, Stat. 
 
 U. C. cap. 13. 
 
 'A 
 
 i 
 
 t,siti 
 
 
 n' ' 
 
 m 
 
 
 
mr 
 
 m 
 
 iff I , 
 
 
 
 "'f. 
 
 
 It/J.i 
 
 
 444 
 
 \'k 
 
 !M 
 
 The Gover- 
 nor or either 
 house of 
 Parliament 
 may, with- 
 in three 
 moutlis, sus- 
 pend all or 
 any such 
 rules. 
 
 Power of the 
 Courts to 
 make occa- 
 sional rules 
 not res- 
 trained. 
 
 As to issue, 
 &c., of new 
 or altered 
 Writs. 
 
 THE COMMON LAW PROCEDURE ACT. [SS. 337, 338. 
 
 therein had heen expressly enacted by the Parliament of this 
 Province, (g) 19 Vic. c. 43, b. 813. 
 
 337. (h) The Governor may, by proclamation, or either 
 of the Houses of Parliament may, by resolution, at any time 
 within three months next ader such Rules, Orders and Regu- 
 lations have been laid before Parliament, suspend the whole 
 or any part thereof, (i) and in such case the whole or the 
 part so suspended, shall not be binding or obligatory on the 
 said Courts or on any Court of Error and Appeal ; (J) and 
 nothing herein contained shall rf^strain the authority or limit 
 the jurisdiction of the said Courts or of the Judges thereof, 
 to make rules or orders, or otherwise to regulate and dispose 
 of the business therein, (it) 19 Vic. o. 43, s. 313. 
 
 338- (0 The Judges of the said Courts, or any four or 
 more of them, of whom the Chief Justices shall be two, (m) 
 may, from time to time, frame and make such new or altered 
 Writs and forms of proceeding as the Judges as aforesaid 
 deem necessary or expedient for giving effect to the provi- 
 sions hereinbefore contained, and may think fit to order ; (n) 
 and such Writs, Forms and proceedings shall be used and 
 enforced in such and the same manner as other Writs, forms 
 
 (g) The effect of laying rules before parliament is of moment. Should the 
 mlea clash with existing statutes, the statutes would become virtually repealed. 
 When two acts of the legislature are inconsistent, the later of the two being the 
 last expressed intention of the legislature is considered as an abrogation of the 
 former. It is enacted that the rules intended by this section shall " be of like 
 force and effect as if the provision contained therein had been expressly enacted 
 by the parliament of this province." 
 
 (A) Taken from Eng. Stat. 13 Vic. cap. 16. 
 
 (») In Ontario now there is only one house of parliament, viz., the Legislative 
 Assembly of Ontario : see the British North American Act 1867, ss. 69, 70. 
 
 (j) It ia enacted that the rules, Ac, " suspended" shall " not be binding or 
 obligatory" on the courts. The word " suspended" seems to be used in the sense 
 of the word " annulled." To annul a thing is to put an end to it for all time to 
 come ; but to suspend it is only to put an end to it for a certain time. In this 
 sense we speak of " suspending the Habeas Corpus Act." 
 
 (k) The rules authorized by this section appear to be general rules of practice, 
 rules of pleading, and rules for the disposal of business pending in the courts. 
 
 (0 Taken from Eng. Stat. 16 A 16 Vic. cap. 76, s. 224. 
 
 (m) See note h to section 333. 
 
 (n) See Schedule of Forms to E. G. pr. of T. T. 1856. 
 
 g^;Mte.< 
 
 
 ^^i 
 
88. S3^ 
 
 ,9-340.] 
 
 RULES OF COURT. 
 
 445 
 
 Judges may 
 extend 
 Sujicrior 
 Court rules 
 to County 
 Courts with 
 modiUca- 
 tiun. 
 
 and proceediogs of the said Courts are acted upon and 
 enforced, or as near thereto as the circumstances of the case 
 will admit ; (o) and any existing writ or proceeding, the form As to exist- 
 of which is in any manner altered in pursuance of this Act, w^udilhe"' 
 shall, nevertheless, be of the same force and virtue as if no terei bytus 
 alteration had been made therein, except so far as the effect ^°^' 
 thereof may be varied by this Act. (;>) 19 Vic. o. 43, s. 314 ; 
 19 Vic. c. 90, s. 8. 
 
 330- (q) The Judges of the said Superior Courts, or 
 any three of them, of whom one of the Chief Justices shall 
 be one, may extend and apply to the several County Courts, 
 all or any of the rules and orders at any time made under 
 this Act, with and under such modifications as they may 
 deem necessary, (r) and such Judges may also make such 
 rules and orders for and specially applicable to the said 
 County Courts as may appear to them expedient for carrying 
 into beneficial effiect the laws applicable to the said County 
 Courts, and to actions and proceedings therein. («) 20 Vic. 
 C.58, s. 9; 19 Vic. c. 90, s. 3. 
 
 340. (0 All Rules and Orders of the said Superior 
 Courts, made after this Act takes effect, shall (unless the 
 contrary be expressed therein) extend to the several County 
 Courts, (w) 20 Vic. c. 58, s. 9. 
 
 (o) One change brought about by the forms attached to the New Rules is that of 
 making writs of execution returnable " immediately after the execution thereof:" 
 see Forms Nos. 29 et teg. to R. G. pr. 
 
 {p) With the exception of writs of execution boing made returnable " imme- 
 diately after the execution thereof," as mentioned in the preceding note, the 
 writs remain substantially the same as before the C. L. P. Act 18S6. 
 
 (?) Taken from County Court Amendment Act^l867, s. 9, as consolidated with 
 the County Court Amendment Act 1856, s. S. 
 
 (r) This the judges did on 26th August, 1857. See note e to s. 332. 
 
 (s) Under this section the powers are two fold — 
 
 1. To extend and apply to the several county courts all or any of the rules and 
 orders at any time made under this act, with and under such modifications as 
 tliey may deem necessary. 
 
 2. To make such rules and orders for and specially applicable to the said 
 county courts as may appear to them expedient for carrying into beneficial effect 
 the laws applicable to the said county courts, dec. 
 
 (0 Taken from the County Court Amendment Act, 1857, section 9. 
 
 (m) I. e. 60 far aa applicable and with such modifications as necessary, 
 
 Superior 
 Court rules 
 hereafter. 
 
 * ''hi 
 
 id 
 
 
440 
 
 THE COMMON LAW PROCEDURE ACT. [88.341,342. 
 
 Uf * 
 
 ^% 
 
 In nripro- 
 vided ciiKi'H 
 tlio ]>riictic(! 
 of till! biipc- 
 
 ri(ir Com-tH 
 sliiiU ai>i>ly 
 to the 
 County 
 Courts. 
 
 First and 
 last diiys of 
 all periods of 
 tiukc liniitt'd 
 
 341. (v) In all cases not expressly provided for by law. 
 the practice and proceedings in tbe several County Courts 
 shall be regulated by and shall conform to the practice for 
 the time being of the said Superior Courts of Common 
 Law, (m») and the practice of the said Superior Courts shall 
 in matters not so provided for, apply and extend to the 
 County Courts and to all actions and proceedings therein. 
 19 Vic. c. 90, s. 19. 
 
 343. («) Unless otherwise expressed, (li) the first and 
 last days of all periods of time limited by this Act, or by any 
 
 («) Taken from the County Court Amendment Act, 1856, section 10. 
 
 {lo) This is a moat important section. Its operation is very extensive. Its 
 efifect will bo to secure, as much as possible, uniformity of practice in all the 
 courts of record of common law jurisdiction. The anomaly of a practice in the 
 county CO rts defective in that in wiiicli the practice of the sui»erior courts is 
 complete cannot now well occur. Provision has been made in express lnny;uage 
 for extending to county courts so much of the practice of the superior courts as 
 appeared to the legislature to be suited to the inferior courts. But so infinite are 
 the possible combinations of events and circumstances tliat they elude the power 
 of enumeration, and are beyond the reach of human foresight. Tiie least reflec- 
 tion serves to evince that it would be impossible by positive and direct legislative 
 authority specially to provide for every particular case wliich may happen. How- 
 ever much, therefore, is the subject of express provision, tiiere may, as regards 
 the practice of county courts, be more for which no positive provision is made. 
 To meet such it is enacted that " in all cases not expressly provided for by law, 
 the practice and proceedings in the several county courts shall be regulated by 
 and siiall conform to the practice, for the time being, of the superior courts of 
 common law at Toronto, ttc." The superior courts of this Province are not so 
 restricted with regard to practice as the county courts. The superior courts pos- 
 sess all such powers and authorities as by the law of England are incident to a 
 superior court of civil and criminal jurisdiction : Con. Stat. U. C. cap. 10, s. 3. 
 
 (a) Taken from our old King's Bench Act, 2 Geo. IV. cap. 1, s. 22. The rule 
 No. 174 Pr. in England is different, viz., exclusive of first day and inclusive of 
 last day: see Mumford v. Hitchcocks, 14 C. B. N.S. 361; Weeks y. Wray, L. It, 
 S Q. B. 212 ; see also Lewis v. Calor, 1 F. A F. 306. But the English cases are 
 conflicting : sec Hughes et al v. Griffltfis, 13 C. B. N.S. 324 ; Eva7is v. Jones, 2B.& 
 S. 45 ; Flower v. Bright, 2 J. dc H. 590. In some Enj^-lish cases a dies non, though 
 the last of the days is counted: see Peacock v. llie Queen, 4 C. B. N.S. 264; Wood- 
 house v. Woods et al, 29 L. J. M. C. 149 ; Pennell v. The Churchwardens of Uxbridge, 
 31 L. J. M. C. 92. And in others the Monday following allowed: liowberryv. 
 Morgan, 9 Ex. 730; Mayer v. Harding, L. R. 2 Q. B. 410. 
 
 (6) When expressed to be clear days both first and last days must be excluded: 
 L'ffin v. Pitcher, 1 Dowl. N.S. 767. Where a statute saj's a thing shall be done 
 " so many days" or " so many days at least" before a given event, the day of the 
 thing done and that of the event must both be excluded : Regina v. The Justices of 
 Shropshire, 8 A. & E. 173 ; Mitchell v. Foster, 9 Dowl. P. C. 527 ; In re Samsy. 
 The Corporation of Toronto, 9 U. C. Q. B. 181. So where " so many days" shall 
 intervene between two events : Young v. Higgon, 6 M. ife W. 49 ; Chambers v. Smith, 
 12 M. <& W. 2. Where a party may do a thing " until a given day," such day is 
 
88. 343, 344.] 
 
 INTERPRETATION CLAUSE. 
 
 447 
 
 rales or orders of Court for the regulation of practice, shall *•>' *'''" 'V* 
 
 '"'^ o r I or any riilf.t 
 
 be inclusive, (c) 2 Geo. IV. c. 1, s. 22. or.,r.uiH to 
 
 "° '^ ' be uiL'luHivu. 
 
 343. (t?) AH Rules in the County Courts in Term time au mies in 
 shall be two-day Rules, (where the same Rules in the Superior cmirt'to'bo 
 Courts would be four-day Rules,) and shall be answerable or ruiis'"^ 
 returnable on the third day inclusive, after service, and may bo 
 made absolute at the rising of the Court on that day, (e) and 
 ia all proceedings in Term not otherwise provided for, one- 
 half of the period allowed in the Superior Courts when ex- 
 ceeding one day shall be allowed in the County Courts. (/) 
 9 Vic. c. 7, s. 3; 20 Vic. c. 58, s. 17; 8 Vic. c 13, s. 43. 
 
 INTERPHETATION CLAUSE. Q/) 
 
 cenerally included : Kerr v. Jcston, 1 Dowl. N. S. 538. Where ho is not to do a 
 thing " until after the expiration of so many days from" some day, both days 
 are excluded: Blunt y. lleslop, 8 A. <fe E. 577. TfTe court will take judicial 
 notice of tlie fraction of a day, if necessary for the ends of justice : Thomas 
 d al V. Demngcs ct al^ 2 B. <fe Al. 685 ; Pewiress et al v. Annan, 9 Dowl. P. C. 828. 
 A " month" {generally speaking means a lunar and not a calendar month, unless 
 so stated: Soper v. Curtis, 2 Dowl. P. C. 237; Tulletr. Linfield, 3 Burr. 1416; 
 But tiie word " month," as used in the Consolidated Statutes of Upper Canada. 
 cap. 2, s. 13, or Canada, cap. 5, s. 6, sub-s. 11, means a calendar month. "Three 
 niontiis after " an event was held to exclude the day of tiie event : In re Ifigham 
 V. Jessop, 9 Dowl. P. C. 203. " Until " n particular day construed as including 
 that (lay: Kerr v.'Jeston, 1 Dowl. N.S. 538. But the words "from the time" 
 may be held either as inclusive or exclusive of the first day, according to the 
 context : Bonlton v. Rattan, 2 0. S. 362. The word " year " ns used in the Con- 
 solidated Statutes of Upper Canada means a calendar year: cap. 2, s. 13. " Before 
 its expiration, may be renewed for one year," held to include the day of its date : 
 Bank of Montr eal\. Taylor, 15 U. C. C. P. 107. 
 
 (c) All periods of time — 1. Limited by this act ; 2. Or by any rules or orders 
 of court for the regulation of practice, shall be inclusive. As to time under a 
 jnd^o's order: see Morris v. Barrett, 7 C. B. N.S. 139; Connelly \. Brcmner, L, R. 
 1 C. P. o57 ; see further R, G. pr. 166. 
 
 (d) Taken from Stat. U. C. 8 Vic. cap. 13, s. 43, as consolidated with 9 Vic. cap. 
 1, 8. 3, and 20 Vic. cap. 58, s. 17. 
 
 (e) «'. e. Two clear days. 
 
 (/) Terms in the County Courts are only of one week's duration : Stat. Ont. 
 32 Vic, cap. 6, s, 2 ; while in the superior courts, with the exception of Hilary 
 Term, which is of two weeks, each term is of three weeks' duration : 29 «fe 30 Vic, 
 cap. 40, s. 2. 
 
 {g) It is usual for the legislature of late years, in order to avoid unnecessary 
 repetition and secure uniformity of interpretation, to append to every statute of 
 great length an interpretation clause, or key to words of general import, whose 
 signification is intended to be more general than perhaps the words themselves, 
 standing alone, would indicate. This the legislature has attempted in the act here 
 annotated, but the interpretation clause is neither as clear nor as extensive as the 
 necessities of the act require. 
 
 t 
 
 m 'f 
 
 'H 
 
 , h 
 
 >" ffl"* 
 
 ' ^ 1 
 
 4 
 
448 
 
 THB COMMON LAW PBOOEDURB ACT. [SS. 844-347. 
 
 r 
 
 s 
 1 J ^« 
 
 r. < 
 
 
 
 The wonlB 
 "a Judge" 
 to Imludo 
 Judges of 
 both of the 
 Superior 
 CourtSi 
 
 Meaning 
 of words 
 "Clerk" and 
 " Deputy 
 Clerk." 
 
 Short Titlo 
 of Aut. 
 
 344. (JO Whenever any power is given by this Act to 
 the Superior Courts or to a Judge thereof, the words "a 
 Judge'' shall be held to authorize any Judge of either of the 
 said Superior Courts of Common Law to exercise such power 
 although the particular proceedings may not be in a cause 
 pending in the Court whereof he is a Judge, (t) 10 Vic. o. 
 48, s. 815. 
 
 345. The term « Clerk" in this Act shall mean tha 
 Clerk of the Crown of each of the Superior Courts, or the 
 Clerk of the County Court according as the proceeding with 
 reference to which the term " Clerk" is used, applies to the 
 Superior Courts or County Courts, and the term "Deputj 
 Clerk " shall mean Deputy Clerk of the Crown. (I) 
 
 346> (ni) This Act shall be called and known as and in 
 all proceedings may be cited as " The Common Law Proce- 
 dure Act." 19 Vic. 0. 43, s. 317. 
 
 347. The following Forms are those referred to in the 
 foregoing sections of this Act : — 
 
 (A) Taken from 0. L. P. Act, 1866, section 31.5. 
 
 (i) "To the superior courts or to ojudge thereof." These are the words upon 
 which the interpretation is placed. Where they and no others are used there can 
 now be no doubt as to their meaning. But in some places words apparently of 
 similar import, but not precisely the same, will be found, and as to these consid- 
 erable difficulty must arise. Thus, " any judge of the court in which the action la 
 pending," Ac, (section 37) : see note y to section 37 ; see further Palmer v. Tht 
 Justice Aiiurance Co. 28 L. T. Rep. 120. 
 
 {h Little difficulty will be found in the application of this enactment. It id 
 rendered necessary owing to the attempt successfully made in this act to blend 
 the process, practice, pleading and procedure of the superior courts of law and 
 the ccuuty courts. 
 
 (m) This section, giving a short title to the act, corresponds with s, 235 of Eng, 
 Stat. 16 & 16 Vic. cap. 76. 
 
FORMS or WRITS. 
 
 449 
 
 A. 
 
 No. l.—(n<fc Section 2.) 
 
 Writ of Summons wben thg Defendant resides within the Jubisdiction. 
 
 Upper Canoda, ) Victoria, by the Qrace of God, Ac. 
 County of J To C. D., of , in tlio County of 
 
 (Skal.) 
 
 We commnnd yon that within ten days after the service of this Writ on yon, 
 inclusive of the day of such service, you do cause an appearance to be entered for 
 Tou in our Court {or County Court) of , in an action at the suit of A. B. ; 
 
 iinil tnko notice tliat in default of your bo doing the said A. li, may proceed 
 tliercin to Judfjment and Execution. 
 Witnesa, «ec. 
 In (he margin. 
 Issued from tlie Office of the Clerk (or Deputy Clerk) of the Crown and Pleas, 
 [or Cluric of the County Court in the County of ). 
 
 {Siffned) J. H., Clerk (or Deputy Clerk,) 
 
 (or Clerk of the County Court.) 
 
 Memorandum to be subscribed on the Writ. 
 
 K.B.—T\na Writ is to be served within six months from the date thereof, or if 
 renewed, from the date of such renewal, including the day of such date, and not 
 
 afterwards. 
 
 Indorsements to be made on the Writ be/ore the service thereof. 
 
 This Writ was issued by E. F., of , Attorney for the said Plaintiff^ or 
 
 this Writ was issued in person by A. B., who resides at {mention the City, Town, 
 Incorporated or other Village, or Township within which such Plaintiff resides). 
 
 Also the Indorsement required by the fourteenth Section of this Act. 
 
 Indorsement to be made on the Writ after service thereof. < ' 
 
 This Writ was served by X. Y. on C. D. (the Dgfendant or one of the Defend- 
 anta), on , the day of , one thousand eight hundred and 
 
 '-■ V 
 
 f I 
 
 f 
 
 Writ of Capias. 
 
 No. 2.— {Vide Section 3.) 
 
 Victoria, Ac, 
 To the Sheriflf of, Ac. 
 
 Upper Canada, 
 County of 
 
 (Seal.) 
 
 We command you that you take C. D., if he shall be found in your County {or 
 United Counties), and him safely keep until he shall have given you bail in an 
 action on promise {or of debt, or covenant, or trespass on the case, or as the cause 
 of action may be, ^c), at the suit of A. B., against tlie said C. D., (and E. F., Ac, 
 i/ there be one or more Defendants not to be arrested) or until the said C. D. ehall 
 
 29 
 
 
 MM 
 
460 
 
 THE COMMON LAW PBOOKDURE ACT. 
 
 
 I 
 
 § 
 
 m 
 
 m 
 
 
 fi : 
 
 V 
 'i' 
 
 
 1i 
 
 feiVH 
 
 1 ;■ 
 
 ■^^ 
 
 by other lawful means be discharged from yonr cnstody: And we do further 
 command you, that on execution hereof on the said C. D., vou do deliver a copy 
 hereof to the aald C. D. : (And we further command you that yon serve a copi 
 hereof on the said E. F., Ac, if thtrt b$ one or more Deftndanti not to be arrtiuil 
 And we hereby require the said C. D, to take notice that within ten dayi ift«r 
 execution hereof on him, inclusive of the day of such execution, he cause specUl 
 bail to be put in for him in our (Court or County Court) of , according to 
 
 the warning hereunder written {or indorsed hereon), and that in default of liia lo 
 doing, such proceedings may be had and taicoa as are mentioned in the said warn. 
 ing: (And we hereby command the said E. F., dtc, that within ten days after the 
 service hereof on him, Ae., inclusive of tlie dav i.f cr>rvicc, he do cause an appear. 
 ■^ee to be entered occordine to the warning No. 8 :) And we do further command 
 you, the said Sheriff, that immediately after the execution hereof, you do return 
 this Writ to the said Court, together with the manner in which you shall hsTe 
 executed the same, and the day of the execution thereof; or if the same shall 
 remain unexecuted, tlien that you do return the same at the expiration of two 
 months from the date hereof, or sooner if you shall be required thereto by order 
 of the Court or of a Judge. 
 Witness, <fcc. 
 In ifu margin, 
 Tsflued from the Office of the Clerk {or Deputy Clerk) of the Crown aod Pleas, 
 (or of the Clerk of the County Court in the County of ). 
 
 {Signed,) J. H., Clerk {or Deputy Clerk,) 
 
 ;, ' (or Clerk of the County Court.) 
 
 ailiit:;! 
 
 ilimorandun to be lubacribtd on the Writ. 
 
 K.B. — This Writ is to be executed within two months from the date hereof, 
 iaoluding the day of sueb data, and not afterwards. 
 
 Warning to the Defendant, 
 
 1. If a Defendant, being in custody, shall be detained on this Writ, or if s 
 Defendant, being arrested thereon, shall go to prison for want of bail, the riaiDtiif 
 may declare against any sueh Defendant before tlie end of the Term next ifler 
 tucn arrest, and proceed thereon to judgment and execution; 
 
 2. If a Defendant having given bail to the Sheriff on the arrest, shall omit to 
 put in special bail conditioned for his surrender to the Sheriff of the County from 
 which the Writ of Capiat issued, and file the bail piece in the Office of the Clerk 
 or Deputy Clerl^ of t'le Crown and Pleas {or of the Clerk of the County Court) 
 for the st^tofi County, th<i Plfiintiff may proceed against the Sheriff or on the bail 
 bond; ",''.''.,,,'!; Ml, ,''','"''•'' 
 
 3. If A Defendant having been served with this Writ and not arrested thereon, 
 shall not enter an appearance within ten days after such service, in the Office of 
 the Clerk or Deputy Clerk of the Crown {or of the Clerk of the County Court) 
 from which the Writ issued, the Plaintiff may proceed to judgment and executioD, 
 
 Indorsement to he made on the Writ before the lerviee thereof. 
 
 This Writ was issued by E. F., of 
 Bail for $ by order of 
 
 , Attorney^ Ac., ai in Form No. 1. 
 , {naming (he Judge who make* (he ordir) 
 
 Alto the Indoreemtnl required by the fourteenth Section of thit Act. 
 
 Indortemfnt to be made on the W'il after execution thereof. 
 
 This Writ was executed by X. T., by arresting 0. D., {or a» the eaie may btti 
 to terviee <m an^ Defendant,} on. , the day of , one thou- 
 
 MDd eight hundred sindr. ,, ,. ,, ,, ^.. ,„ , 
 
!rown nod Pleu, 
 
 the date hereof, 
 
 FORMS Of writs; 
 
 No. 3— ( Vide Scctlnns 43 itnd 49.) 
 
 
 WlIT WKERB TBI DEFENDANT, BEIMO A BltlTIflH SuUCCT, aUIDU OCT OV ,{ 
 
 Upper Canada, ,{ 
 
 VicToniA, dtc, •^ 
 
 ToU. D., of , Iff. 
 
 Upper Cnnada, 
 County of 
 
 iSta) ":'! 
 
 We command you that witUia days, (htre interl a »uJ/leUnt number of^ 
 
 ivii according to the directiotu in the Act,) after tho service of this Writ on you,. 
 inclusive of the day of such service, you do cause an appearance to be entered for! 
 TOU in our Court (or County Court) of , in an action at the suit of A. B. ; 
 
 iod uke notice that in default of your so doing, tho said A. B. may, by leave of 
 the Court or a Judge, proceed therein to Judgment and Execution. 
 
 Witness, 4c. , 
 
 In the margin. . • 
 
 Issued from the Office of, Ac. (at in foregoing earn.) . ' 
 
 Memorandum to be tubteribed on the Writ. 
 J. B.— This Writ Is to bo served within six months from tho date thereof, or if 
 renewed, then from the date of such renewal. Including day of such date, and not 
 jfternrards. 
 
 Iiidorsementi to be made on the Writ before the terviee thereof. 
 
 This Writ is for service out of Upper Canada, and was issued by E. F., of , 
 
 Attorney for the Plaintiff, or this Writ was issued in person by A. B., who resides 
 It , [mentioning J'lainliff'$ retidenee, at directed in Form No. 1.) 
 
 {.{ho the Indorsement required by the fourieanth Section of the Ael, allowing the 
 d'fmdiint two days less than the time limited for appearance, to pay the debt and\ 
 
 «f((.) 
 
 No. 4.— ( Vide Sections 46 and 49.) r 
 
 Weit wheke the Defe.^dant, kot beixo j^ BaiiisH Sudtect, besides out ; 
 
 or UPFsa Canada. ^ 
 
 I'pper Canada, ) VrrTontA, Ac. 
 County of j To C. D., late of , in tho County of ' ; 
 
 (Sbai.,) ■' 
 
 We command you that within days {insert a sufficient number according to , 
 
 the directions of the Act), after notice of this Writ is served on you, inclusive of, 
 the day of sucli service, you do cause an appearance to be entered for you in our' 
 Court (or County Court) of , in an action at the suit of A. B. ; And take^ 
 
 notice that in default of your so doing, the said A. B. may, by leave of the Court^ 
 or a Judge, j roceed thereon to Judgment and execution. ^ 
 
 Memorandum to be svJbacribed on the WriL 
 The sa' !.v oj. No. 3. 
 
 ' ''nt, also as on form No. 8. 
 
 .'t the margin. ^ ' 
 
 ued from the Ol. j of, Ac. (<m in foregoing eases.) 
 
 NeAiee of the foregoing Writ. 
 
 i ) C. I late of (the City of Hamilton, in Upper Canada,) or (now residing at 
 Buffalo, it. ilie State of New York.) 
 
 Take notice that A. B. of . ^ the County of , Upper Canada, faas'^ 
 
 commenced an action at law agaiust you, C. D., in He* Majesty's Court {or' 
 
 KiMm 
 
 
 f <>^m 
 
 
THE COMMON LAW PROCEDURE ACT. 
 
 County Court) of , by a Writ of that Court, dated tlie day of 
 
 A.D. one thousand eight hundred and , and you are required within 
 
 days, after the receipt of tliis notice, inclusive of the day of such receipt to 
 defend the said action, by causing an appearance to be entered for you io'tli. 
 Office of the Clerk {or Deputy Clerk) of the Crown, {or of the Clerk of the Connty 
 Court) for the County of , to th6 said action, and in default of ywitL 
 
 doing, the said A. B. may, by leavt? af the Court or a Judge, proceed tiiereonto 
 judgment and execution. 
 
 {Signed) A. B., the Plaintiflf in person, 
 
 or 
 E. F., Plaintiff's Attorney. 
 
 t 5 a 
 
 'si, 
 
 J-*'. ^ 
 
 i i- . 
 
 '^'.i 
 
 1 1 
 ? 
 
 'ft 
 
 l'1 
 
 No. 5.— (T7Je Section 15.) 
 
 Special Indorsement. 
 
 {After the Indorsement required Ifjf the fourteenth Seoiicn of ihc Act, thit ipecid 
 Indorsement may he inserted.) 
 
 The following are the particulars of the PlaiatifFs claim : 
 
 1851. January 10. — Five barrels of Flour, at ^4 f 20 00 
 
 July 2. — Monej' lent to the Defendant 120 00 
 
 October 1. — A ilorse sold to Defendant 100 00 
 
 |240 00 
 Paid 30 00 
 
 (■ Balance due $210 00 
 
 Or, 
 
 To Bread {or Butcher's Meat) supplied between the 1st January, 
 
 1851, and the 1st January, 1852 $lfi0 00 
 
 Paid 60 00 
 
 '-' ' Balance due fllO CO 
 
 (Ff any aecowit has bren delivered, it may be referred to with its date, or ,k i 
 Plaintiff may give such a description of ms claim as on a particular of demand, so u 
 to prevent the necessity of an application for further particulars.) 
 
 Or, 
 
 ^400 {or, £100, as the case may be, and so tliroitghout tJicse forms,) principal oiid 
 interest, due on a bond, dated the day of , conditioned for the pay- 
 
 ment of igSOO {or £20u) and interest. 
 
 Or, 
 
 $400 {or £100), principal and interest, due on a covenant contained in a deed, I 
 dated the day of , to pay $2000 {or £500) and interest. 
 
 Or, 
 
 $400 {or £100), on a Bill of Exchange for that amount, dated the 2Dd February, j 
 1851, accepted {or drawn or indorsed j by the Defendant, with interest and i(utt-| 
 vial charges. 
 
 Or. 
 $400 {or £100), on a Promissory Note for that amount, dated the 2nd February, 
 1851, made {or indorsed) by the Defendant, with interest and Notarial charges, 
 
 Or, 
 $400 (or £100), on a Guarantee, dated tho 2nd February, 1851, whereby tl 
 Defendant guaranteed the due payment by E. F., of goods supplied {or to be aup- 1 
 plied) to him. 
 
FORMS OF WBIT8. 
 
 4m 
 
 {In all caxcii where interest is lawfully rf^-zraMr. owl is not above expressed, add 
 "the Plaintiff claims interest on $ « from the day of , until 
 
 Judgment.") 
 
 X5.--Take notice, that if a Defendant serr^d with this Writ witliin Uppep 
 Canada, do not appear according to tlie exigeocy ther*?<^f, the Plaintiff will be at 
 lib«rtv to sign final judgment for any 6um not exetieiiing the sum above claimed 
 (with iiiterek) and the sum of , for co?ts. aiid siaae execution at the expira- 
 
 &a of ei''lit days from the last day for appeiirance. 
 
 (No. 6, — llde Section 4i) 
 TTrit of Cafias in an Actios juczj^t commenced. 
 
 Victoria, <tc. 
 To the Sheriff of, «fcc 
 
 Upper Canada, 
 County of 
 (Seal.) 
 
 T\'e command you, that you take C D., if h* thaSi h^ found in yonr County {or 
 United Counties), and him saft'ly keep, until he ihalE have given you bail in the 
 action on promises {or of debt, Ac), which A. B. baa commenced against him, 
 and wliicli action is now pending, or until the said C. D. shall, by other lawful. 
 means, be discharged from your custody. Aud wt: <ii> farther command you, that 
 on execution hereof, you do deliver a copy tothesay C. D., and that immediately 
 after execution hereof, you do return this ^Vrit in oor Court (or County Court) of 
 , together with the manner in which ytu shall have executed the same 
 and the day of the execution hereof; and if th« same shall remain unexecuted, 
 then tlmt you do so return tliQ same at the f-ijj'.r^'.ion of two months from the 
 dale hereof, or sooner if you shall be required t!j*i»to by order of the said Court 
 or a Judge. And we do herebj' require the said C. I*., that within ten days after 
 csecutiun hereof on him, inclusive of the day of *ueh execution, he cause special 
 bail to be put in for him in our said Court, ac^ >rdin^ to the warning hereunder 
 written (or indorsed hereon), and that in defaall of his so doing, proceedings may 
 be bad .md taken as are mentioned in the wamiiii^ ia that behalf. 
 Witness, Ac. 
 
 In the margin. 
 Ispued from the office of the Clerk (or DejiTi^y Clerk) of the Crown an \ Pleaa 
 (o)' of the Clerk of the County Court in the Couuiiy of .) 
 
 {Signed) J. H-, Owk (or Deputy Clerk), 
 
 («T Oerk of the County Court.) 
 
 Memorandum to be subteribed o» the Writ. 
 
 J.B.— This writ is to be executed within Xieo montha from the date hereof, 
 including the day of such date, and not afterwardf . 
 
 Warning to the Dtftsidaxf. 
 
 1. This suit, which was commenced by the serki^ of a Writ of Summons, will 
 be continued and carried on in like manner as if the Defendant had not been 
 arrested on this Writ of Capias ; 
 
 2. If tlie Defendant, having given bail to the Sheriff on the arrest on this Writ, 
 fbail omit to put in special bail for his surread** Ho the Sheriff of the County from 
 ^liicli the Writ of Capias issued, and to file the bail-piece in the office of the 
 Cleric (or Deputy Clerk) of the Crown and Pl«**. (or of the Clerk of the County 
 Court) for the County of , the Plaintiff naay prt,ceed against the Sheriff or 
 on the Bai: Bond. 
 
 i: 
 
 f r 
 
 iflfl 
 
464 
 
 THE COMMOir LAW VROOIOrRE ACT. 
 
 :t \' 
 
 i I 
 
 
 lit 
 
 
 IndortemtnU to be tnadt on tkt Writ be/ore the exeeulion thereof, 
 
 1, Tills writ WM issned by E. P., of, Ac. {at m Form No. 1). 
 
 2. Bail for $ , by order of , {naming the Judge who makei thi 
 
 , ■ AUo the Indoreement required by the fourtemth Seetion of thU Act. 
 
 -II i:^ 
 
 Indortemmt to be made on the Writ after the execution thereqf. 
 
 This Writ was executed by arresting C. D., (according to the facte) on the 
 day of , one thousand eight hundred and 
 
 J.. 
 
 In the 
 On the 
 
 No. 7.— ( Trde Section 65.) 
 , &c. (stat^ the Court). 
 
 day of , one thousand eight hundred and 
 
 (Day of ligning Judgment.) 
 
 Upper Canada, ) A. B., in his own person (or by his Attornej), 
 
 To wit: J sued out a Writ of Summons against C. D., indorsed 
 
 according to the Common Law Procedure Act, as follows : 
 
 (Here copy Special Indorsement.) 
 
 Jo 
 
 br 
 
 9 And the said C. D. has not appeared, therefore it is considered that the said 
 
 A. B. recover against the said C. D., $ , together with $ , for costi 
 
 of suit. 
 
 Mi: 
 
 No. 8.— (Fide Section 150.) 
 
 In the Q. B., (or C. P., or C, C.) 
 The day of , in the year of our Lord one thousand eight hun- 
 
 dred and 
 
 County of 
 
 To wit: 
 
 '} 
 
 Whereas A. B. has saed C. D., and 
 denies, 
 
 afiBrms and 
 
 (Here ttate the question or questions of fact to be tried.) 
 
 And it has been ordered by the Honorable Mr Justice , (or by His 
 
 Honor , Judge of the County Court, Ac.) according to the Common Law 
 
 Procedure Act, that the said question shall be tried by a Jury ; therefore let the 
 MRV09 be tried accordingly. 
 
 No. 9.— ( Fide Section 308.) 
 
 FOEU op A RULK OB ScUMoNS WHEEK A JuDOMKNT CREDITOR APPLIES FOR ExECCTIOil 
 
 AGAINST A Judgment Debtor. 
 (Formal parts as at present.) 
 C. P., to show cause why A. B. (or ae the ease may be) should not bo at liberty 
 to enter a suggestion on the roll in an action wherein the said A. B. was Plaintiff, 
 and the said C. D., Defendant, and wherein the said A. B. obtained Judgment for 
 fi (or £ ), against the said C. D., on the day of , 
 
 that it manifestly appears to the Court that the said A. B. is entitled to hm \ 
 e)c(;cntion of the said Judgment, and to issue execution thereupon, and why tbs 
 said C. D. should not pay to the said A. B. the costs of this application to lie j 
 taxed. 
 
 j^ Note, — The above may be modified so as to meet the case of an application In 
 or against the representative of a party to the Judgment. 
 
V0KU8 or PLXADIN09. > nVT 
 
 No. lO.—iVide Swtion 804.) 
 
 m 
 
 FOIH or BUOOESTIOM THAT TBI JUDGHBITT CREDITOR IS INTITLXD TO ExiOVnOlf 
 AGAINST TU JUDOMBMT DbBTOK. 
 
 And now, on the day of ' • it is sugi^esvyd and n^anifestly appeart 
 
 to the Court, that the said A. B. (or E. F., as executor of the last Will atad Test^ 
 neat of the said A. B., deceased, or a$ the ease may be,) is entitled to have execa- 
 tioa of the judgment aforesaid, against the said C. D., {or against G. H., at 
 execator of the last Will and Testament of the said C. t)., or aa the etue majf be)'^ 
 therefore, it is considered by the Court that the said A. B., {or E. F., aS sooh 
 (lecator as aforesaid, or as the eaie may bey ought to have execution of the said 
 judgmeDt against the said C. D., {or against G. H., aa such executor as aforesud, 
 or u the cote may be). 
 
 No. 11.— (TUe Sections 306, 141.) 
 
 .n,.« 
 
 Form of Writ of Bbtitor. 
 ViCTOBU, Ac, ;if ..',■• 
 
 To C. D., of GanriKO : 
 
 We command von, that winhin ten days after thesArrioe o£ this Writ upon yoi^ 
 incluiive of the day of such service, you appear in our Court {or County Court) of 
 , to shew cause why A. B., {or E. F., as executor of the last WiM and 
 Testament of the said A. B., deceased, or at the eate may be,) should not have 
 neciitioa against you, {if againtt a repreaentaiive, here ineert, as executor of the 
 Ust Will and Testament of , deceased, or aa the ease may be,) of a judgp 
 
 ment whereby the said A. B. {or as the ease tnai) be) recovered against you, (or at 
 tk call nay be,) $ (or £ ); and take notice that in default of your 
 
 doiD^ 90, the said A. B. {or aa the eate may be) may proceed to execution. 
 Witness, Ac. 
 
 :8 FOR EXECDIIOK 
 
 
 B. 
 
 Forms of Pleadings. — ( Vide Section 81) 
 On Contracts. 
 
 1. Money payable by the Defendant to the Plaintiff for {these words "naoney 
 payable," Ac. should precede money counta like 1 to II, but need only be inaerled in 
 ihtfint,) goods bargained and sold by the Plaintiff to the Defendant. 
 
 2. Work done and materials provided by the Plaintiff for the Defendant at his 
 
 reouest. 
 
 ■ ■ ■ ■i-.j i 
 
 3. Money lent by the Plaintiff to the Defendant. 
 
 4. Money paid by the Plaintiff for the Defendant at his request. 
 
 6. Money received by the Defendant for the use of the Plaintiff ,,) 
 
 6. Money found to be due from the Defendant to the Plaintiff on accounts 
 itated between them, 
 
 "i. A messuage and lands sold and conveyed by the Plaintiff to the Defendant. 
 
 8. The Defendant's use by the Plaintiff's perniisssioD of messuage and lands of 
 
 the Plaintiff. 
 
 9. The hire of {aa the east may be) by the Plaintiff let to hire to the Defendant 
 
 -it" 
 
 , i4 si )| 
 
 
 'I 
 
 
456 
 
 THE COMMON LAW PROOEDURE ACT. 
 
 i 
 
 h 
 
 
 10. Freight for the conreyance of the Plaintiff for the Defendant, at his request 
 of goods ia (thipa, dec.) 
 
 11. The demurrage of a («A']p) of the Plaintiff kept on demurrage by the 
 Defendant. 
 
 12. That the Defendant on the day of , A,D. , by his pfo- 
 miasory Note now overdue, promised to pay to the Plaintiff $ (or £ ), Uwu] 
 months after date, but did not pay the same. 
 
 13. That one A., on, &c. (date) by his Promissory Note now overdue, promised 
 to pay to the Defendant or order $ (or £ ) {two) months after date, and the 
 Defendant indorsed the same to tlie Plaintiff, and tlie said Note was duly pre- 
 sented for payment and was dishonored, whereof the Defendant had due notice 
 but did not pay the same. 
 
 14. That the Plaintiff on, Ac. (dale) by his Bill of E-xchanRO now overdue, 
 dii'ected to the Defendant, reqiiired the Defendant to pay to the Plaintiff § [or £ 
 
 ), (tu<o) months after date, and the Defendant accepted the said Bill, but did 
 not pay the same. 
 
 15. That the Defendant on, &o. (date), by his Bill of Exchange to A., required 
 A. to pay the Plaintiff $ (or £ ), (two) months after date, and the said Bill was 
 duly presented for acceptance and was dishonored, of which the Defendant had 
 due notice, but did not pay the same. 
 
 16. That the Plaintiff and Defendant agreed to marry one another, and a 
 reasonable time for such marriage has elapsed, and the Plaintiff has always been 
 ready and willing to marry the Defendant, yet the Defendant has neglected and 
 refused to marry the Plaintiff. 
 
 17. That the Defendant by warranting a horse to bo then sound and quiet to 
 ride, sold the said horse to the Plaintiff, yet the said horse was not then sound 
 and quiet to ride. 
 
 18. That the Plaintiff and Defendant agreed by charter party, that the Plain- 
 tiff's schooner called the Toronto, should with all convenient speed sail to Jlamilton, 
 and that the Defendant should there load her with a full cargo of flour and otlar 
 lawful merchandize, which she should carry to Kwgitlon and there deliver, on 
 payment of freight per barrel, and that the Defendant should be allowed four 
 days for loading and four days for discharging, and four days for dcinui'rat;e, if 
 required, at $ (or £ ), per day ; and that the Plaintiff did all things necessary 
 on his part to entitle him to have tht agreed cargo loaded on board the sail 
 Bchooner at JIatnilton, and that the time for so loading has elapsed, yet tht 
 Defendant made default in loading the agreed cargo. 
 
 19. That the Plaintiff let the Defendant a house, being (designate it) for 
 yearo, to hold from the day of A.D. , at $ (or £ ) a year, pay 
 able quarterly, of which rent quarters are due and unpaid. 
 
 20. The Plaintiff by deed let to the Defendant a house (designate it) to bold fr 
 seven years from the day of , A.D. , and the Defendant by tlie 
 said deed covenanted with the Plaintiff well and substantially to r?rr.:r the said 
 house during the said term (according to the covenant), yet the sa.d Loi.se was 
 during the said term out of good and substantial repair. 
 
 nii» {■■■' 
 
 Foa Wbonos indei'endknt ok Contbact. 
 
 21. That the Defendant broke and entered certain land of the PlaiutifT called 
 lot No. Ac, and depastured the same with cattle. 
 
 22. That the Defendant assaulted and beat the Plaintiff, gave him into custoiiy 
 to a Constable, and caused iiim to be imprisoned in the Common Gaol. 
 
< FORMS OF PLEADINGS. 
 
 4^7 
 
 23. That the Defendant debauched and carnally knew the Plaintiffs wife. 
 
 21. Thnt the Defendant converted to his own use {or wrongfully deprived the 
 Plantiff of the use and possession of) the Plaintiffs goods, that is to say — (wien- 
 tioniiii/ what articles, as for instance, household furniture.) 
 
 2.5. That the Defendant detained from the Plaintiff his title deeds of land called 
 
 lot No. itc. 
 
 in, &c. 
 
 , that is to say {describe (he deeds). 
 
 <i^ 
 
 S^ttJf^ 
 
 if.*' 
 
 26. That the Plaintiff was possessed of a mill, and by reason thereof was enti- 
 tled to the flow of a stream for working the same, and the Defendant, by cutting 
 the bank of the said stream, diverted the w;. .;r thereof away from the said mil). 
 
 27. That the Defendant, having no reasonable or probable cause for believing 
 that the Plaintiff, unless forthwith apprehended, was about to quit Canada with 
 intent to defraud his creditors generally, or tiie said Defendant in particular, 
 niftlicioiisly "epresented that such was the fact, and thcreu[)on maliciously pro- 
 cured ft Judg( a order for the issue of bailable process against the said Plaintiff, 
 and caused the Plaintiff to be arrested and held to bail for § {or £ ). 
 
 28. That the Defendant falsely and maliciously sj)oke and published of the 
 PlniiitifT tiie words following, that is to say, " He is a thief" {if there be atu/ special 
 damnije, lure state it, lelth such reasonable particidari'ij as to r/ive notice to the Uefen- 
 dmt of the peculiar injury complained of , as for instance, whereby the Plaintitf lost 
 Lis situation as shopman in the employ of N.) 
 
 20. That the Defendant falsely and maliciously published of the Plaintiff in a 
 newsimper called the words following, that is to say : (" lie is a regular 
 
 prover under bankruptcies") the Defendant meaning tiiereby that (the Plaintiff 
 had proved, and was in the habit of proving, fictitious debts against the estates 
 of bniikrupts, with the knowledge that such debts were fictitious) or as the case 
 may be. 
 
 Commencement of Plea. 
 
 30. The Defendant by , his Attorney {or In person), says {here slate Vie 
 
 subskmce of the Flea.) 
 
 SI. And for a second Plea, the Defendant saj's {here stale the second flea.) 
 
 Plea in Actions, ox Contracts. i 
 
 32. That he never was indebted as alleged. ^N.B. — This pica is applicable to 
 other declarations like those numbered 1 to 11.) 
 
 33. That he did not promise as alleged. {This plea is applicable to other decln- 
 ratiimn on simple contracts not on bills or 7iotes, snch as those numbered 16 to 10. Jt 
 would be [un Ed.] objectionable to use " did not warrant," " did not agree," or any 
 other appropriate denial.) 
 
 34. That the alleged deed Is not his deed. 
 
 35. That the alleged cause of action did not accrue within 
 the period of limitation applicable to the case), before the suit. 
 
 30. That before action bo satisfied and discharged the 
 
 payiiK'ut. 
 
 37. That the Plaintiff, at the commencement of this suit, was, and still is, 
 indebti'd to the Defendant in an amount equal to {or greater than) the Plaintiff's 
 claim for (state the came of set of as in a declaration, see form aute,) wliicii amount 
 the Defendant is willing to set off against the Plaintiffs claim, {or, and the Defen- 
 dant claims to recover a balance from the Plaintiff. 
 
 3S. That after the claim accrued, and before this suit., the Plaintiff, by deed, 
 released the Defendant therefrom. 
 
 years, {state 
 Plaintiffs claim by 
 
458 
 
 THE COMMON LAW PROCEDURE ACT. 
 
 IS 
 
 
 E" di ' 
 
 f1" 
 
 
 
 
 ';': ■'■■"'S.''|- 
 
 '. 
 
 
 ^ J 
 
 
 
 '■■'^- -''''tM- 
 
 t: 
 
 
 i 
 
 ■ |K* '':"j!5i'^ ' 
 
 -' If: 
 
 i ' 'Wl- ■' 
 
 ■■• \ 
 
 ' '''. ^JMf ' 
 
 
 '^;im 
 
 Plkab IX AoTioNa for Wrongs independent of Contract. 
 That he is not gnilty. 
 
 40. That he did what ia complained of by the Plaiutiff's leave. 
 
 41. That the Plaintiff first assaulted the Defendant, who thereupon necessarily 
 committ<^d the alleged assault in his own defence. 
 
 42. That the Defendant, at the time of the allei^ed trespass, was possessed of 
 land, the occupiers whereof, for twenty years before this suit, enjoyed, as of right 
 and without interruption, a way on foot and with cattle from a public highway 
 over the said land of the Plaintiff to the said land of the Defendant, and from the 
 said land of th« Defendant over the said land of the Plaintiff, to the said public 
 highway, at all times of the year, for the more convenient occupation of the said 
 land of the Defendant, and that the alleged trespass ivaa the use by the Defendant 
 of the said way. 
 
 Befuoations: 
 
 43. The Plaintiff takes issue upon the Defendant's first, second, &c., pleas. 
 
 44. The Plaintiff as to the second Plea, says : {here state the antwer to the pita, 
 a$ in the following forme.) 
 
 46. That the alleged release is not the Plaintiff's deed. 
 
 46. That the alleged release was procured by the fraud of the Defendant, 
 
 47. That the alleged set-off did not accrue within six years before tb'= suit. 
 
 48. That the Plaintiff was possesaed of land whereon the Defendant was trea- 
 
 {(assing and doing damage, whereupon the Plaintiff requested the Defendant to 
 eave the said land, which the Defendant refused to do, and thereupon the Plain- 
 tiff gently laid his hands upon the Defendant in order to secure him, doing no 
 more than was necessary for that purpose, which is the alleg<)d first assault by 
 the Plaintiff. 
 
 '49. Thot the occupiers of the said land did not, for twenty yeors before this 
 6uit, enjoy, as of right and without interruption, the alleged way. 
 
 ' ' New As^onhent. 
 
 KO. The Plaintiff as to the . and pleas, says, that he sues, not 
 
 for the trespasses therein admitted, but for trespasses committed by the Defendant 
 in excess of the alleged rights, and also in other parts of the said land, and on 
 other occasions and for other purposes than those referred to in the said pleas. 
 
 " Jlf the Plaintiff replies and new assigns, the new assiffnment may be as follows: 
 
 61. And the Plaintiff, as to the and pleas, further says that he 
 sues, not only for the trespasses in those pleas admitted, but also for, i&c. 
 
 ff the Plaintiff replies and new assigns to some of the pleas, and new assign* only 
 to the other, the form may be as follows : 
 
 62. And the Plaintiff, as to the and pleas, further says that he 
 sues, not for the trespasses in the pleas (the pleas not replied (o) admitted, 
 but for the trespasses in the pleas {the pleas replied to) admitted, and alto 
 fov, Ae. 
 
 m: 
 
 
 IjKfn.'ilt'!!- 
 
 SSt< .».■■■/( f ,.'■ ■ 
 
•T ift.aXl 
 
 ■I fi ■■,if jiulT 
 
 WRITS OF MANDAMUS AND INJUNCTION: ' 
 
 Con. Stat. U. C, Cap. 23, 
 
 An Act respecting Writs of Mandamus and 
 Injunction. 
 
 Her Majesty, by and with the advice and consent of the 
 Legislative Council and Assembly of Canada, enacts as 
 
 follows : 
 
 MANDAMUS, (a) 
 
 bnr.i h'ina 
 
 1) I' .Y,^ 
 
 (a) A peculiarity in the constitution of the couKs of England and of Ontario is 
 the existence of two distinct sets of tribunals for the administration 6f justice. 
 These tribunals, known as courts of law and equity, though in many respects 
 acting independently of each other, in some cases occupy a common ground of 
 jurisdiction. Proceedings in each tribunal have one object, which is the recovery 
 of rights and the prevention of wrongs. The steps by which a person may seek 
 his civil righti in a court of law constitute a mode of procedure know^n as an 
 action. With fe'v exceptions actions have only one object, which is compensatioa 
 in damnges, or, in the words of the Common Law Coramissioners, " to procure a 
 stipulated sum, payable in respect of some debt, or duty, or damage in money 
 for the loss sustained by plaintiff by the non-performance of a contract, or for 
 an injury sustained by a wrongful act." In this act, which was originally a 
 part of the C. L. P. Act, lb66, an attempt is made to elTect an extension of the 
 operation of an action at law. Compensation is not always adequate redress. To 
 satisfy the demands of justice there must bo a power lodged somewhere io protect 
 rights and prevent wrongs. Until the passing of the C, L. P. Act, 1866, that power 
 was aln!)ost exclusively confined to courts of equity. It appeared to the Common 
 Law Commissioners that "courts of common law, to l>e able satisfactorily to 
 administer justice, ought to possess, in all matters within their jnriacHction, th» 
 power to give all the redress necessary to protect and vindicate comnion law 
 riglits and to prevent wrongs, -vhether existing or likely to happen, unless pre- 
 vented." In their opinion "a consolidation of all the elements of a complete 
 remedy in tlie same court is obviously most desirable, not to say imperatively 
 Lecessnry, to the establishment of a consistent and rational system of jurispru- 
 dence." In pursuance of this opinion, the Commissioners recommended a transfer 
 from courts of equity to courts of law of " the power, in certain cases, of common 
 law obligations and rights to enforce specific performance, and in other cases of 
 lei^nl wrungs commenced or threatened to proiiibit by injunction the commission 
 of wrongful acts." 
 
 There may be a breach of contract or other injury for which no damages 
 that a jury can award would be adequate compensation. In such cases a juris- 
 diction to prevent the breach of contract or other wrongful act would be much 
 more salutary if exercised than a jurisdiction to indemnify against the conse- 
 quences of its commission. The want of some court having such a jurisdiction 
 was felt and acknowledged at a very early period in the history of English 
 iuilsprudence : see Monklon v. Attorney- General, 2 Coop, 627. Courts of equity 
 
 
 f 
 
 -itl 
 
 
 

 1^" 
 
 If 
 
 460 
 
 When a 
 
 Mandnmua 
 may lie ob- 
 tained (iti 
 t'fiuitalile 
 frouiiclH. 
 
 WRITS OF MANDAMUS AND INJUNCTION. 
 
 [8.1. 
 
 1, (i) The Plaintiff, ia any action in either of the Superior 
 Courts of Common Law, except replevin or ejectment, nh 
 may indorse upon the Writ and copy to be served, (y) a 
 notice that the Plaintiff intends to claim a Writ of Manch' 
 mus, (fi) and the Plaintiff may thereupon claim in thcdoclara- 
 
 
 hnvin;> observed the want seized the opportunity of ndministorina; the dcsiicd 
 relief, and in ao doing arro;jated to tiieniselves a most useful and powijitnl 
 jurisdiction. Having assuined to exercise it, tlieso courts did not confine its 
 operations to mere equitable rigiits, but administered the relief as well whore 
 there were legal as purely equitable rights. In this mannc a ijrent inroad 
 was made upon the jurisdiction of courts of common law, so much so that in 
 many cases no satisfactory redress could be had at law without first having 
 invoked the supplomentary aid of a court of equity. The attention of the Com- 
 mon Law Commissioners of 1834 having been directed to this state of tlie law, 
 tliey reported that there was no reason "why a court of law should not exorcise 
 the same jurisdiction as a court of equit)', and restrain tho violation of Icyfal riglits 
 in cases iu which an injunction might issue for that purpose from courts of oquity." 
 The advantages to arise from such a change also received tho attention of the 
 commissiohers. Their report was to this effect: " It would obviously be attended 
 with great advantage and convenienco ; that where common law rights are con- 
 v3rned, the whole litigation relating to them should fall witliin the cognizance of 
 a common law court, not only because the expense and delay of a suit in equity 
 may be thus pvoided, but because the common law judges are more competent 
 than those in quity to decide any question of law whicii the application for an 
 injunction may involve, and can exercise more conveniently a controlling or 
 directing power over any action connected with the matter in dispute." It was 
 ascertained that to carry out these recommendations no creation of macliinery 
 was necessary. " Little more wo'ild be required than to give an existing writ a 
 wider application of a kind panctioned by ancient usage. For in former times a 
 writ of prohibition was granted not only to prevent excess of jurisdiction but to 
 restrain waste. Prohibition of ^vi\ste lay at common law for the owner of tlie 
 inheritance against the tenant by the curtesy tenant in dower and guardian in 
 chivalry; and this, says Lord Coke, 'was an excellent law, for preventing injus- 
 tice excelleth punishing injustice:'" Second report of the Common Law (Jommis- 
 eioners, section 48. It is the design of the latter part of this act, which was also 
 originally a part of the C. L. P. Act, 1850, to put these recommendations, which 
 received the approval of the Common Law Comraissisners of 1850, into practice. 
 
 (b) Taken from Eng. Stat. 17 <fe 18 Vic. cap. 125, s. 68. Founded upon the 
 second report of the Common Law Commissioners, section 46. 
 
 {(l) In each of which forms of action the judgment is for the delivery of a 
 specific thing, and not mere compensation for the wrong of detaining it, and there- 
 fore not requiring the remedy contained in tliis and the following sections: sea 
 Land v. Oilkison, 7 U. C. L. J. 151 ; Baylit v. LeOros et al, 2 C. B. N.S. 3«. 
 
 [g) Must indorse, if tho intention be to claim a mandamus. 
 
 (h) Tho writ of mandamus here intended is the old prerogative writ of that 
 name amplified both in form and eiTicacy. The use intended is that of enforcing 
 the specihe performance of certain d.ities, "in the fulfilment of which the plaintiff 
 is personally interested." The right of courts of common law to issue tlie writ 
 for such purposes, so far as the same is dependent upon this statute, is a supiile- 
 mentnry jurisdiction received from coirts of equity, and will not generally be 
 esercised, unle&s in cases wbere'a a bill for specific performance would lie ia 
 
8. 2.] 
 
 rO^M or DECLARATION. 
 
 401 
 
 tioD, either together with any other demand which may he 
 enforced in such action, or separately, (i) a Writ of Manda- 
 mus commanding the Defendant to fulfil any duty (J) in the 
 fulfilment of which the Plaintiff is personally interested, (/c) 
 19 Vic. c. 43, 8. 275. 
 2. (I) The declaration in such action shall set forth suffi- 
 
 Fonii of 
 Declurutiou 
 
 equity. But it by no means follows that the converse of this proposition holds 
 good, viz., that wherever courts of equity will entertain a bill for specific relief 
 courts of law will grant a writ of mandamut. There are cases in which equity will 
 entertain such a bill, althouj^h the party applying has no legal right whatever, 
 and in which courts of law, in the absence of a legal right, -would not interfere : 
 Bee Kef/ina v. The Balby ^ Worknop Turnpike Road, 22 L. J. Q B. 104 ; Edwards 
 V. Lowndes, \ El. & B. 81, In such cases the remedy eiclusiveiy belongs to 
 equity. There is a larger class of cases in which, although hitherto there has been 
 a remedy at law, yet, because of its inadequacy, equity exercises a concurrent juris- 
 diction by granting specific relief where courts of law could only grant pecuniary 
 compensation. To this class of cases the section under considertion appears to bo 
 chiefly directed, but in the opinion of the courts have to a great extent failed to 
 embrace thorn. The declared intention of the commissioners was that each court 
 should possess within itself the elements of complete redress. But the words used 
 by the legislature to carry out this intention have fallen far short of the purpose 
 intended : see Bush el al v. Beavan, 1 H. it C. 600. The only class of cases to 
 wliicli the section can without doubt be said to apply is that in ■which there is a 
 duty of a pul)lic nature, or a duty created by act of parliament, in the fulfilment of 
 wliicii some other party has a personal interest: Benson, v. Paull, 6 El. & B. 273; 
 ]yardct al v. Lowndes, 1 W. 11. 489; s. c. 6 Jur. N.S. 247; Bush v. Beavan, 1 H. 
 &, C. 500. The remedy, however, may be held to extend to cases of a more private 
 nature than those to which the prerogative writ would apply: Norris v. The Irish 
 Land Co. 8 EL <fe B. 5'11,per Coleridge, J.; see further Sivany. The North British 
 Aualralasian Co. 7 11. & N. 603 ; s. c. in appeal, 2 II. & C. 175 ; Ward et al v. 
 Lowndes, IE. <fe E. 940; affirmed in error, 1 E. & E. 956; Worthing/ton et al v. 
 llulton, L. R. 1 Q. B. 63 ; and in actions even though no actual damage be sus- 
 tained: Fotherby v. The Metropolitan R. Co. L. R. 2 C. P. 188. A discretion will 
 be e.xercised as to the granting or refusing of the writ in actions in whicli it may 
 be properly claimed: NichoU et al v. Allen, 1 B. & S. 916; in appeal, 1 B. <fe S. 
 9.34. it has been held that practice court has no jurisdiction to grant the prero- 
 gative writ: In re Williams and the Oreat Western Railway Co. 26 U.O. Q.B. 340; 
 Bee also Crysdale v. Moorman, 17 U. C. C. P. 218. 
 
 (') In equity there may be a bill for specific performance, and a supplemental 
 bill, in principle answering to an action under this section and a supplementary 
 riijlit to mandamus. Thus, if pending a suit for the specific ijerformanee of an 
 
 subject matter bo 
 su2)plemental bill: 
 
 a;;reeniont, for instance, of a demise of quarries, a part oi the 
 al)stractud, compens.ition therefor may be obtained by a s 
 Nelson V. Bridges, 2 Beav. 239. 
 
 (/) See note h to this section. 
 
 {k) The public has an inforo«t in the removal or abatenifnt, of a nuisance; but 
 any private individual who suffers particular injury may at common law have his 
 action for damages: see Brown v. Mallctt, f C. B. 590; Dobson v. Blackmorc, 
 9 Q. B. 991; also Russell v. Shenton, 3 Q. B. 449; Goldth<^rpe y, Uardman, 2 D. 
 4 L. 442; Fay v. I'rentice, 1 C. B. 828. 
 
 (0 Taken from Eng. Stat. 17 <fe 18 Vic. cap. 125. e. 69. Founded upon the 
 second n-purl of the Common Law Commissioners, section 46. 
 
 
 Ji 
 
 
 
 II 
 
 
 t^iM'M 
 
 i 
 
462 
 
 WRITS OF MANDAMUS AMD INJUNCTION. 
 
 [s.S. 
 
 cient ground upon which the olatm is founded, (m) and shall 
 ftct forth that the Plaintiff is personally interested therein, (n) 
 and that he sustains or may sustain damage by the non-per- 
 formance of such duty, (o) and that performance thereof has 
 been demanded by him and been refused or neglected, (n) 
 19 Vic. c. 43, 8. 276. 
 
 The ?J,*b*' ^' ^2^ '^^^ pleadings and other proceedings in any action 
 in ordinary ia whioh a Writ of Mandamus is claimed, ehall be the same 
 
 actions a* . „ i n i 
 
 Bear a8 may m all rei^pects as nearly as may be, (r) and costs shall be 
 
 (m) This differs from the prnctico as to the prerogative writ of mandamui. 
 The ground upon which the claim to the writ ia founded liere required to be act 
 fortli in the declaration must, as regards the prerogative writ, be set forth upon 
 the face of the writ itself: Keijina v. Hopkins el at, 1 Q. B. 161 ; and if in this res- 
 pect the writ be defective, nothing appearing in the return can cure the defect: 
 lb. Even after the return, objections, whether in form or substance, can in certaio 
 cases be made to the writ: Hex v. Jlargate Pier Co. 3 B. «t Al. 220. 
 
 (n) See note k to section 1. 
 
 (o) The specific amount of a debt sought to be recovered by maitdamus need 
 not be ascertained upon the declaration : Ward et al v. Lownnes, 1 E. dt E. 940, 966. 
 
 (/>) The demand must be specific, and non-compliance therewith clearly made 
 to appear: see Kegina v. FroH, 8 A. A E, 822; Regina v. The Bristol if Exeter R. 
 Co. 4 Q. B. 162 ; Kegina v. Justices of Worcestershire. 3 El. <fe B. 477. Where a rule 
 for a manditinus was discharged on the ground of there being no demand and 
 refusal, the court declined to gront a second rule, although upon tl>e second appli- 
 cation it was shown that since the discharge of the former rule a demand and 
 refusal had taken place: JiJx parte Thompson, 6 Q. B. 721. As to sufficiency of 
 demand and when necessary : sec Rex v. Ford et al, 2 A. <b !<]. 688 ; Segtna v. Frost, 
 8 A. & E. 822 ; Rex v. JUai^or of West Looe, 3 B. & C. 677. 
 
 {q) Taken from Eng. Stat. 17 <fe 18 Vic. cap. 125, bs. 7o, 71. Founded upon 
 the second report of the Common Law Commissioners, section 46. 
 
 (r) It is necessary for the party to whom a mandamus ia addressed to make a 
 return to it: 9 Anne, cap. 20, s. 1. The party prosecuting the writ may plead to 
 or traverse ail or any of the material facts contained in the return : lb s. 2. To 
 which the person who makes the return may reply, take issue, or demur: lb. A» 
 to the applicability of the Statute of Limitations by way of plea, see Ward et al 
 V. Lowndes, 1 E. «fe E. 940, 956 ; Bush et al v. Beavan, 1 H. ik C. 500. The party 
 demurring may thereby impeach the validity of the writ: Clarke v. The Leicester- 
 shire and Northamptonshire Canal Co. 6 Q. B. 898. The objection that defendant 
 is not bound to perform the act, the performance of which plaintiff seeks to en- 
 force, may be made upon demurrer to the return as well as in opposition to the 
 original motion for the writ: Regina v. Whitmarsh, 19 L.J. Q. B. 186. If issue 
 be joined upon a traverse of a matter of fact, and the prosecutor do not proceed 
 to trial according to the practice of the court, Judgment for not proceeding may 
 be had against Inm: Rex v. Mayor, ^c. of Stafford, 4 T. R. 689; and after trial, 
 if there be sufficient ground therefor, judgment non obstante veredicto may be 
 given for the party who made the return: Regina v. The Oovernori of the Dar- 
 Ungton Free Grammar School, 6 Q. B. 682. The provisions of the Statute of Abne, 
 
B.4.] 
 
 REQUIREMENlH OF TFIE WRIT. 
 
 'V/ 
 
 4ea 
 
 reooTorable by either party, aa in an ordinary notion for the 
 reoorory of damages; (jt) and in ease Judgment shall be 
 eiven for the Plaintiff that a Mandamua do issue, (f) the 
 Court in which such Judgment is given, besides issuing 
 execution in the ordinary way for the costs and damages, (u) 
 may alao issue issue a peremptory Writ of Mandamus to the 
 Defendant, commanding him forthwith to perform the duty 
 to bo enforced. («) 19 Vic. c. 43, s. 277. 
 
 4. (a) Such Writ (J/) need not recite the declaration or 
 
 cap, 20, liftvo been extended to nil writs oi mandamus : Stat. 28 Vic. cap. 18, % 3; 
 Bce further section 4 of the same act. Proceedings do not abate by death, resig- 
 nation, or reir?OTal from office: lb. section 6 ; and the person dissatisfied with tUe 
 decision of the court may appeal or bring error: see lb. bs. 7, 8, 10. 
 
 («) In all oases of application for the prerogative writ, of mandamut, whether 
 the writ bo granted or refused, the costs are in the discretion of tlie court: 
 Stat. 28 Vic. cap. 18, s. 6. Where the necessity of issuing a mandamUt to a 
 court lias arisen from tlie mistalte of the court, the party relying upon the judg- 
 ment of that court is not generally required to pay costs : Atgina v. Ju$ticea of 
 Surrei/. 9 Q. B. 37. But the court of Queen's Bench in England, without binding 
 itself aUolutely to general rules, has always exercised a discretionary power as to 
 Biich costs: Regina v. The CommusiorifTi of the Thames and his Navigation, 6 A. 
 d E. fe(i4. Formerly there was a practice of going at great length into the merits 
 on an application for coats of a mandamus, but tliat was found to be inconvenient, 
 ana a (general rule laid down that the court, without entering into the merits, 
 wonld order the unsuccessful party to pay the costs : Regina v. Ingham, 1 7 Q. B. 
 884. It i.s the ordinary practice to make a separate application for costs of a pre- 
 rogative mandamus: Reyina v. The East Anglian R. Go. 2 El. <& B. 476. Costs 
 have been refused where both parties were to blnrae: In re Poussett and the Cor- 
 poration of the County of Lamhton, 22 U. C. Q. B. 80. 
 
 (() The form of which judgment shall be according to R. O. pr. form Xo. 65 
 h Bcliedule. 
 
 («) See section 238, et seq. of C. L. P. Act. 
 
 (f) Provision is made for the issue of only one mandamus, viz. that in the 
 nature of an execution, which therefore must be of a peremptory nature. The 
 declaration represents the first writ of mandamus or mandamus nisi issued in pro- 
 ceedings independently of this act. It is a rule in such a proceeding that no per- 
 emptory writ shall issue until the proceedings on the first writ of mandamus are 
 coraplpted; Reginav. Baldwin, 8 A. dc £. 947 ; and when granted peremptorily, the 
 court will not hear any return to it: Regina v. Ledgard el a/, 1 Q. B. 616; other 
 tlinn that of compliance: section 4. The writ may be made returnable forthwith, 
 and may be signed and issued by the clerk of process: Burdett v. Sawyer, 2 Prac, 
 R. 3i'8. Persons acting in obedience to a peremptory writ of mandamus issued 
 by any court having authority to issue such writs, are indemnified against action, 
 Buits or other proceedings: Stat. 28 Vic. cap. 18, s. 9. 
 
 . (a) Taken from Eng. Stat. 17 4 18 Vic. cap. 126, s. 72. Founded upon the 
 second report of the Common Law Commissioners, section 46. 
 
 (b) Such writ, i. «. the peremptory writ of mandamua mentioned in the pre- 
 ceding section. 
 
 
 >i.\\ 
 
 ■■i 
 
 
 1 
 
 f 
 
 . .' * 
 
 
 ■.tn 
 
 ;-i • .1 
 
 P 
 
 
 B' 
 
 1, i, 
 
 irf 
 
 mMt 
 
 1 17 
 
 ""■1 
 
 l. • 
 
 
 .i.Ji 
 
464 
 
 WRITS OF MANDAMUt AND INJUNCTION. 
 
 [M. 
 
 
 I h ill 
 
 What, the 
 Writ HhiUl 
 require. 
 
 other proceedings or the matter therein stated, (c) but shall 
 simply command the performaooe of the duty, (d) iinj iq 
 other respects shall be in the form of an ordinary Writ of 
 Execution, except that it shall be directed to the party and 
 not to the Sheriff, (c) and may be issued in Term or Vaca- 
 tion and be made returnable forthwith, (/) and no return 
 thereto, except that of compliance, shall be allowed, (g) but 
 time to return it may upon sufficient ground be allowed by 
 the Court or a Judge, (A) either with or without terms, (i) 
 19 Vic. c. 43, 8. 278. 
 
 (c) A peremptory mandamus issued independently of this statute need not, in 
 ceucral, vecito the previous writ of mandamus, to wliich, in a great niensnie, the 
 dcclnration under the practice established by this act corresponds. But in fortn 
 the peremptory writ nuiat be the same as tlie writ originally awarded, Hint is to 
 say, there must not be any substantial variance, otherwise defendants would liave 
 a right to make a new return to it, a step which the practice forbids. The manda- 
 mut nut orders the act to be done, or cause to be returned for not doing it; 
 whereas the peremptory mandamus commands the act to bo done, and will admit 
 of no return except that of performance : Regina v. The Lord Mat/or and Aldermen 
 cfthe City of London, 18 Q. B. 1. 
 
 (rf) Great particularity must be observed in the mandatory part of tlio writ. 
 To support a writ commanding the doing of several things, all must bo valid, else 
 the writ must be quashed. If the writ be bad as to one of the things coraninndcd 
 to be done it will bo bad as to all: Regina v. The Tithe Commissioners, U Q. B. 
 459. It is quite settled that if any part of what is commanded by a peremptory 
 mandamus go beyond the legal obligation, the whole writ must be set aside: 
 Regi..^ v. The Caledonian R. Co. 16 Q. B. 19; The South Eastern R. Co. y. 
 Regina, IT Q. B. 48.5 ; Regina v. The East and West India Bocks and Birmingham 
 Junction R. Co. 2 El. <fe B. 466. The courts have refused .to amend prerogative 
 writs of mandamus when peremptory : Regina v. The Church Trustees of St. Pan- 
 eras, 3 A. <fe E. 535 ; Regina v. The Tithe Commissioners, 14 Q. B. 469 ; Regina r. 
 The Kidwelly and Llanelly Canal and Tramroad Co. lb, 481, n. The motion 
 against such a writ upon the ground of some defect in it is not too late, on a 
 motion for an attachment, because of disobedience : Regina y. Ledgard et at, 1 Q. 
 B. 616. 
 
 («) The writ should be directed to those who are bound to perform the duty com- 
 manded: Regina v. The Mayor, ^c. of Hereford, 2 Salk. TOl. It may be directed 
 to a corporation by name or to those members of it who have the power to do 
 the thing required: Ilarcourt v. Fox, Comb. 213, per Holt, C. J. But it must be 
 directed either to that part of the corporation who are bound to do the art or to 
 the corporation at large : Rex v. The Mayor of Abingdon, 2 Salk. 699. 
 
 (/) The prerogative writ of mandamus is regulated by a like practice : sec- 
 tions 7, 8. 
 
 (g) This is the rule also as to the prerogative writ when peremptory: Regiu 
 \. Ledgard et al, 1 Q. B. 616. 
 
 (h) Relative powers : see note w to section 48 of C. L. P. Act. 
 
 (i) If prosecutor endeavour to enforce (i return within an unreasonable time or 
 otherwise in an unreasonable manner, further time will, it is apprehended, bo 
 granted without terms. 
 
ss.5,G.] 
 
 ENFORCINO MANDAMUS. 
 
 465 
 
 the 
 
 5, (Jc) Tho Writ of ManJamm, so issued as aforesaid, (T) fdicc una 
 shall have the same force and effect as a Peremptory Writ Writ. " 
 of McndumuSf (m) and in case of disobedicncr may bo 
 enforced by attachment, (n) 19 Vic. c. 43, s. 279. 
 
 0, (o) The Court (p) may, upon application by the Plain- 
 
 {k) Tnken from Eng. Stat. 17 «fc 18 Vic. cap. 125, «. 73. Founded upon the 
 fecund report of the Common Law Commissioners, section 46. 
 (f) t. e. Issued under section 3. 
 
 (m) In Eng. C. L. P. Act, " shall have the same force and effect as a peremptory 
 writ of mandamus issued out of the court of Queen's Bench," because before tlio 
 Kn;'. C. L. P. Act tlie writ of mandamus in England was issuable only from the 
 odiirt of Queen's Bench. In this Province since the constitution of tlie court of 
 Cuiiimon Plens, that court and the Queen's Bench have in all respects exercised a 
 cuiiourrcnt jurisdiction: Con. Stat, U. C. cap. 10, s. 3. 
 
 (n) Tiie peremptory mandamus commands obedience. No return can be made 
 to it except tliiit of compliance: section 4. If that return be not made witiiin a 
 nasoiiable time, the court will grant nn attachment against the persons to whom 
 the writ is directed, with this difference, however, that where a mandamus is 
 directed to a corporation to do a corporate act, the attachment is granted only 
 aijuinst those particular persons who refuse to pay obedience ; but where it is 
 directed to several persons in their natural capacity the attachment for disobe- 
 dience must issue against all, though when they are brought before the court tho 
 imnishraent will be proportioned to the offence of each : Buller's N. P. 201 ; 
 Htijina v. Ltdgard et al, 1 Q. B. 616. The attachment does not lie simply for not 
 nmliing tlie return, but for not obeying the writ : The Queen v. The School Ttus- 
 titt of Tyendenaga, 3 Prac. R .43. A mandamus was directed to two bailiffs, 
 one of whom inclined to obey the writ and the other would not obey it nor join 
 in a return. The court granted an attachment against both, saying it would bo 
 endless to try in all cases who was in the right and who wrong, and that if tho 
 same were done it would be used as a handle for delay : In re Bailiffs of Bridge- 
 uorlk, 2 Str. 808. In answer to a rule for an attachment against school trustees, 
 it was shown that one was willing to levy tho rate; that a second, owing to ill 
 Leallh, had resigned his office before the receipt of the writ ; and the court there- 
 upon discharge the rule as to these two on payment of costs, but granted the 
 attuchment as to the third trustee, who took no notice of the rule : Regina v. 
 Tht School Trustees of Tgendinaga, 20 U. C. Q. B. 528. An attachment waa 
 ordered against the mayor of a corporation for not making a return to a manda- 
 mus within the time prescribed by the writ, though there had been no personal 
 service thereof upon the mayor : Sex v. The Mayor and Corporation of Fowey, 
 5 D. k R. 614. A mandamus nisi having been directed to M. S. '"Treasurer 
 of Belleville," an attachment being moved for after he had ceased to hold tho 
 office, v/ns refused; Burdett v. Saioyer, 2 Prac. R. 398 ; see further Regina v. 
 Tkt School Trustees of Tyendinaga, 3 Prac. R. 43. If the return, upon the face 
 ofit, be good, but the matter of it false, an action upon the case lies for the party 
 injured against the person making such false return: Buller's N. P. 202; see fur- 
 ther Tapping's Mandamus, 383, 421. An attachment may be issued against per- 
 sons making a fraudulent use of the writ of mandamus : In re McLay et al, 24 U. 
 C.Q.B. 54 
 
 (o) Taken from Eng. Stat. 17 «fe 18 Vic. cap. 125, s. 74. Fouovled upon the 
 second report of the Common Law Commissioners, section 46. 
 (p) Qu. Court or judge; see note v to this section. 
 80 
 
 ■1^ , 
 
 I -I 
 
 M 
 
I'*. 
 
 
 
 I-/' 
 
 s 
 
 When the 
 Court may 
 direct a 
 substituted 
 jierforin- 
 auce. 
 
 466 WRITS OF MANDAMUS AND INJUNCTION. [s. ^ 
 
 tiff, besides or instead of proceediDg against the disobedient 
 party by attachment, (j) direct that the act required to be 
 done may be done by the Plaintiff or some other person 
 appointed by the Court, at the expense of the Defendant; (r) 
 and upon the act being done, (js) the amount of such expense 
 may be ascertained by the Court either by an enquiry in the 
 nature of an assessment of damages (J) or by reference to the 
 proper officer, («) as the Court or a Judge may order, (y) and 
 the Court may order payment of the amount of such expenses 
 and costs, (jw) and enforce payment thereof by execution, [x^ 
 19 Vic. c. 43, s. 280. 
 
 jurisdjctioQ 7- (a) Nothing in this Act contained shall take awav 
 gativeWHts the Jurisdiction of either of the Superioi Courts to grant 
 of AfuHdci- yj^^ ^f Mandamus; (6) nor shall any Writ of Mandamm 
 
 {q) Under section 6. 
 
 (r) Thia may apply to abatement of nuisances, «fec. : see note k to section 1, 
 
 (») The doing of which must be made to appear on affidavit. 
 
 (J) As to form of writs see R. G. pr. Sch. No. 66. 
 
 [u) i. e. Clerk of the court. 
 
 (p) It is enacted the court " may, upon application, &c. direct tliat the act 
 required to be done may be done by tlie plaintiff, Ac. and that upon the act bein:;; 
 done the amount of the expense of doing it may be ascertained, (be. as " the covn 
 or judge " may order, «Jec. and that " the court " may order judgment of siicb 
 expense, diEC. These changes of expression shewing apparently when i)ower rests 
 with the court or a judge and when with the court exclusively, are material to be 
 observed in the practical application of this section. 
 
 (w) An order for payment of the expenses and costs, from the peculiar wording 
 of the section, would appear to be unnecessary to warrant issue of the execution, 
 
 (x) The execution intended is, it is presumed, the ordinary writ of fieri f<t(m. 
 Whethev other forms of execution can be issued remains to be decided. 
 
 (a) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 75. 
 
 (6) Manilamu* is a high prerogative writ of a most extensive remedial cha- 
 racter, issuable in 'bis Province out of either of the superior courts of common law, 
 directed to any corporation or companj', inferior court of judicature, or person, 
 requiring them to do some particular thing specified therein, which appertains to 
 their office, and wiiich it is their duty to perform : Jmpoy on Mandamus, 1. 
 The writ being one of prerogative issuable from courts of common law can only 
 be issued to enforce a legal ascertained right : i?er y. Archbhhop of Cantnhun. 
 8 East. 213; Hex v. Stafford et al, 3 T. K. 646; Jn re the Vicarage of Orion. 
 13 Jur. 1049; J]x parte Xapier, 18Q,B. 692; Hcgina v. Irmtees of the Balbn mi 
 Worksop Turnpike Road, 22 L. J. Q. B. 164 ; In re Bamhart v. The Jiutices of tin 
 Home District, 5 0. S. 507 ; liegina v. Tlie District Council of the District of Gon, 
 5 U. C. Q. B. 351 ; in general where there is no other specific remedy, or one 
 that is doubtful or inconsistent: Kez v. Bishop of Chester, 1 T. R. 3'Jii; iJ« t. 
 
k to section 1. 
 
 8,7.] 
 
 PREROGATIVE MAXDAMUS. 
 
 467 
 
 issued out of such Courts be invalid hx reason of the riiiht (if mji-in.tto 
 'He pi'osecutor to proceed by action l»«r Ahtndimua under tins 
 Act. (il) but the provisions of this A -t. «o fir as the}' jirc 
 
 The dircdom of the Bristol Lock Co. 12 Ea»t. 429; Rfty. The Treamrev mid 
 [)ir(fl'>rs of (he Sf. Katherine Dock Co. 4 B. A A.l :i>^>; linx v. Wiiidhiiiii, 1 Cnwp. 
 S77; Rii V. The Minister and ChurchimrJrcm* nd f<t'tke. li.nnfrel, r> A. <t E. 584 ; Rt:X 
 V. Tiic SiMngham Old Waterworlcs Co. 6 A. « E. Sj3 ; R'-fi'ma v. The Rictar and 
 Chi'rclwardvu.i of Birmivpham, 7 A. <t E. i-il ; Ri^frna v. The finll and Stl/ii/ Bnil- 
 wm (Jo. 6 Q. B.'VO ; Keglna v. Thf Grmt IF'sfw-a Railir,,,/ Co. 14 U. C. C. V. 402; 
 Rt'liiin V. 7'he iScho'd Trustees of Tyendituim, t»> U. C. Q. B. 528 ; /;t re Jnd<je of 
 Cwilil of Elgin, Ih. 588 ; In re Keenakam did Pf»^Mt. 21 U. C. il. B. 461 ; and to 
 CTforce the performance of a duty iujjverative and clear: Rer v. The BaiUffn and 
 Corporation of Kije, 1 B. <fe C. 85 ; lUz v. Tht Ji^^ikea of Lum-'tshire, 7 B. & V. C91 ; 
 Fat V. The Binhop of Gloucester, 2 B. <fc Ad. li* ; Ex }>arte Brrke, 3 B. & Ad. 7u4 ; 
 Ilez V. The Mayor and Aldermen of London. lb. i5.> : Rex v. The Justices of the West 
 ll'mnfjof Yorkshire, 5 B. <fe Ad. 607; liiMirun x. Tht Houth Euslern R:^hcai/ 'Vi. 
 4 il. L. Cas. 471 ; Rex v. Hughes, 3 A. <fc E. 4*5; Rex v. Grrene et nl A. '& E. 
 MS; Rfi/ina v. 7%e Eastern Counties Railtcam Co. Vf A. &. E. 5.3] ; /■ gina v. 77i« 
 }l"iiicipid Conned of Bruce, II U. C. C. P. 5T5; b»?tn^ one of a j)U.)lic or t^nasi 
 public charncter, that is to say, one in »"liic-l« *pE)Ucant is not at all events the 
 sule ptrsoii interested: Rex v. Barker et al. S Borr. 12t;5 ; Rex v. Lord Montarnte 
 it'jl, I W. Bl 60; Rex v. CAwre, 4 B. 4: C. '>iri: JEc jxir/e Rrjhins. 7 Do^vl. P. C. 
 .Vii'i; Re(ii»a V. Eastern Counties Raitmofj '' A. «t E, 531 ; but will not be 
 
 i<-uo(l to enforce the doinjy of an act wLich '.: . .-..- would serve no i^-ood purpo.se : 
 Avmi. Lofts. 148 ; Rex v. The Cnnmissiovcrt of (kf. Linttuiio District of Roud.i in. Cur- 
 mrlhrnnhirc, 2 T. R. 232 ; Regina v. TIce ifirj.don of the Blackmll Rnihrag Co. 
 'J Dowl. r, C. 558 ; Rex v. The JvMicvs of .^Uj-nnhhJ.re, 6 A. it E. 84; Regina v. 
 Fdt, Iti A. A E. 272; Regina v. liarrieon <i «/. * Q. B. 794; or cause unnecesaary 
 trouble, vexation, or confusion : Regina r. St. J'Ahi College, Comb. 238 ; Rex v. 
 Bhhq-n\f' Elji, 1 W. Bl. 62; Rex \.^Colerido<. I (.tit. R. 588; or direct the doing 
 of im aet which is impossible; Regina v. Lomrim and Xorth West Rail wag (Jo. 
 6 Riiil. Cas. 634 ; or be otherwise fruitlese aad iReleas : Regina v. Bridgmnn, 16 L. 
 J. il. C. 44 ; Rex v. Heathcote, 10 Mod. 4S ; Rtmitt v. The Trustees and Managers 
 of file Xorthwich Savings BaiJc, 9 A. & £. 72*; or generally to do an aet, the 
 (loinir of which would subject the party to am »ctif>n ; Rex v. Dayrell et al, 1 B. <fe 
 C. 485; In re CLeary and the ScJtool TrunttK* of At TownsJoip of Bland ford, 19 U. 
 C. (I IJ. 556 ; or be an interference with the d^etiiion of a competent tribunal : /« 
 nJikhje of the County of Elgin and Macartmiim, \Z L'. C. C. P. 73. No waiver of 
 objectiiins will entitle a party to a maitdarivM. onlesa the party npplyinj^ of him- 
 self disclose a good right thereto : Regina t. Tin Lir,Lt Commissioners of the 1 rea- 
 s>r;i, 16 (i. B. 357. Tlio party applying uini=t ih'-,w that there has been a sjiecific 
 deiiiaud for the performance of the duty. foljl«>we'i by a refusal in terms or by 
 circuuKstances which distinctly show the InteiaUoa of the part}- not to do the act 
 required of him, and which it is the obj«-ct <A sit* uuindamns to enforce : Rix v. 
 ?/if Bncknock and Abergavenny Canal Xnvi^ft^n Co. 3 .\. ife E. 217 ; Rigina v. 
 TIte titled Vestrymen of St. Margaret Leic<*tir I'atn. S A. A E. 889 ; Regina v. 'J'he 
 BriM and Exeter Railway Co. 4 Q. B. 162; a: pvte Thompson, 6 Q. B. 721. The 
 apiilicatioa must be made within a retsr^aaW* time: Reipn.%\. The Ledsund 
 Lmrpool (Janal Co. 11 A. & E. 316; Regina x. Totmnnid. 23 L. T. Rep. lou. 
 
 ('0 I'x is a rule that the prerogative writ <rf mitmtltmM can only be had in ca.ses 
 ''lare tliero is no other specific remedy. Tb* stutatory mandamus allowed by 
 tliis act will be in some cases a specific reiaedj. bnt in no ea.--o such a remedy as 
 will it is apprehended prevent the iuterfereici of the court by the issue of the 
 prero(!;ative writ. 
 
4G8 
 
 WRITS or MANDAMUS AND INJUNCTION. 
 
 [ss.8,9. 
 
 ■te 
 
 i I 
 
 Writs niny 
 issue ill tUti 
 tlriit iu- 
 stauce. 
 
 applicable, shall apply to the pleadings and proceedings upon 
 a prerogative Writ of Mandamus issued by either of the 
 Superior Courts. («) 19 Vic. o. 43, ss. 281, 282. 
 
 !*i. (/) Upon application by motion for any Writ of Man- 
 damus, ((/) the rule may in all cases be absolute in the first 
 instance, if the Court thinks fit, (h) and the Writ may bear 
 teste on the day of its issuing, (e) and may be made return- 
 able forthwith, whether in term or in vacation, (j) but time 
 may be allowed to return it by the Court or a Judge either 
 with or without terms. (^-) 19 Vic. c. 43, s. 282. 
 
 "XJUXCTIOX. 
 
 of ilijanc" 9. (0 1° case of breach of contract or other injury, (m) 
 isaue'by' where the party injured is entitled to maintain and has 
 
 (e) The latter part of this section is taken f-om Eng. Stat. 17 & 18 Vic. c, 125, 
 8, ij, and is in many respects an important provision. 
 
 (/) Taken from Eng, Stat. 17 «t 18 Vic. cap. 125, s. 76. 
 
 (g) In Eng. C. L. P. Act, " Upon any application by motion for any writ of 
 mmdamus in the court of Qufien's Bencli:" see note m to section 5. 
 
 (h) This has always been the rnlc of practice. As to when the rule slionlJ h 
 nisi and when absolute, see Impey's Mandamus, p. 114; Tapping on Mandamus, 
 ■297, 298. 
 
 (t) And herein conform with the practice regulating writs of summons anJ 
 execution : section 249 C. L. P. Act. Hitherto all writs of mandamus were tCfteJ 
 in term : Com. Dig. " Mandamus," C. 4 ; Itegina v. Conyera et al, 8 C^. IJ. Ml, 
 And in practice were supijosed to issne on the day when ordered by tlie court: Ih. 
 Under this section the writ may bear date "on the date of its issuing" "litlur 
 in term or vacation," and without reference to the day when ordered by the 
 .court. 
 
 (/) Same rule as applied to writs of execution ; 
 R. 398. 
 
 see Burdett v. Sawyer, 2 Trac, 
 
 (/•) Court or Judge. Relative powers : see note ic to section 48, C. L. P. Act. 
 
 (I) Taken from Eng. Stat. 17 «t 18 Vic. cap. 125, s. 79. Founded upon the 
 second report of the Common Law Commissioners, section 48. 
 
 (m) The application of this section is in some degree made to depend iii>nn « 
 reference to the mandamui clauses. It is enacted that in all cases of breach of 
 contract or other injury, «tc. plaintiff " may in like cases and manner ns herein- 
 before provided with respect to writ of mandamus, claim a writ of injunctioii," 
 (fee. It is not in every case of a breach of contract or other injury that i)]iiintiii j 
 may obtain a writ of mandamus: see note h to section 1. But between tlio cns« 
 in which the proper application would be for a mandamus, and those for aa 
 injunction, there is at least one obvious distinction. The former writ issues to ' 
 command the doing of something and is in general issued in cases of non-fi'«?.in«; 
 whereas the latter writ does not so much issue to command the doing of a tliiaj 
 
[ss.8,!K 
 
 codings upon 
 either of the 
 
 !2. 
 
 Writ of Man. 
 
 te in the first 
 
 Vrit may bear 
 made return- 
 (y) but time 
 
 , Judge either 
 
 282. 
 
 er injury, (m) 
 atain and has 
 
 & 18 Vic. c. 125, 
 
 1 for any writ of 
 n5. 
 
 ^e rule should h 
 ng on Mandamu', 
 
 of summons and 
 mus were to^ieJ 
 al, 8 Q. B. 181. 
 
 by Uie court; lb. 
 
 issuinjj" "HlliiT 
 ordereil by iht 
 
 Sawyer, 2 Trac, 
 
 48, C. L. P. Act. 
 'onnded upon the 
 
 to depend upin « 
 ia!!03 of brcaoli i; 
 manner as ln-v'-'i"; 
 •it of injunctino. 
 jury that iiluint'.. 
 between the ca;« 
 and those f«" «» 
 ;cr writ i^'^ucs to 
 lof non-fefti-aiioe: 
 doing of a llniiS 
 
 ) 
 
 5 9.] WHEN A WRIT OF INJUNCTION MAY ISSUE. 469 
 
 brought an action, (n) he may, in like case and niiuincr as ^',j^'^.'*''°^ 
 
 y tu desist from doing something, and isaues generally in cases of misfeasnnce, 
 <,rii) the words of this section, the injunction may issue " against the continuance " 
 of g breach of contract or other injury. However in some degree the enactment 
 ■j anticipatory, for relief may bo asked not only against the continuance, tfec. but 
 irain^t the " repetition " and against the " comniittal " of any breach of contract 
 or injury of a like kind arising out of the eamo contract or relating to the same 
 iiMH'rty or right. The words " breach of contract or other injury " arc also 
 .;.j;rvin;; of attention. The first inference is that a breach of contract is an 
 injury within the meaning of tlie section. Cisea have arisen in which great 
 d'jubts were entertained sn to whetiier, for tiie breach of a particular contract, 
 •he remedy was on the contract or in tort. Tao distinction appears to be that 
 nlii?never there i' ^i iuty arising from a general employment, then the action 
 nijy be i ! ''» ■ lort, though the breach of such duty may consist in doing 
 smethiiig coiilrary to an agreement made in the course of suci» duty by the party 
 on whom the general duty is imposed: Courtenay v. Earle, 10 G. B. 73; see also 
 Bnruvtn (t al v. Brown, ;i (^. B. 511, reported as affirmed in 11 CI. & F. 1 ; Wood 
 ij'i nh, 21 L. J. Ex. 138 Where the command to desist from the doing of an 
 act iuvulves tiie doing ot -trnm' other act, the injunction may nevertiielcss be 
 •Taiiti'd: Jcscl v. Choplin, 4 W. U. tilO. Tluis, iu an action for the obstructiim 
 (,f lilaintitf's lights by the erection of a wall, the court i^ranted an injunction, the 
 tilt of which was of necessity to compel defendant /■ lake down the wall : lb, 
 Jlany cases of alike kind will readily suggest themselves: see Uradbee v. Tlic 
 ^'iij'vr, tVc. of Lew ,11, ti'vernors of Christ's Hospital, 4 M. it G. 714; Rose v. 
 (/>MM tt al .5 M. -v C- '■ j; Firmslone ct al v. Wheele;/ et al, 2 D. it L. 203; 
 l^oldthurpe V. Hardmuu, i /. 442; Russell v. Shenton, 3 Q. i?. 4(9; Fay v. Prcn- 
 iK> ft a!. 1 C. B. 82R ; Brown ct al v. Mallett. 5 C. B. r.'.);», decided in courts of 
 fomnioa law; and the cases of Martin et ux, v. Nutkin ct al, 2 P. Wins. 26G ; Haines 
 x.Zii/lor, 2 Ph. 20SI, ntiirnied iD Beav. 75; Spencer v. Londan .j" Uirmingham Rw. 
 Cu S Sim. 103; Squire y, Campbell, 1 M. it C. 450; Altorneii-General v. For'bes, 
 i.M. iC, 123; Earl of Ripon et al v. Holjart et al, 3 M. & K. 109, decided i:i 
 courts of equity. There are cases in whicli courts of etinity graiit injunctions 
 prohibitory in form but mandatory in effect, the princijiles of wiiicli will ,govern 
 tli(> ajiplication of tiie section under consideration: see Farl if Mexboruvyli v. 
 ii'icT. 7 Reav. 127. But a writ of injunction, the ctVect of whicli would ho to 
 C'!iiih1 di'feiulant to do an illegal act, will not be granted: Lowlun and North 
 ]\'i'i'.m Railway Co. v. Webb, 9 L. T. N.S. 291. 
 
 ('i) The "breach of contract or other injury" must be one fir which plaintiff 
 '.' Mitled to bring and for which he han brought an action. Tiiere must be the 
 '%m1 ri:,'lit infringed upon by the wrongful act or injur}-, the subject of the action. 
 Oiurtii of equity have observed the principles involved in this provision with as 
 T.ucli strictness as courts of law can well do. In ap})licati()n to court-: of equity 
 forreliet in cases depen ling upon legal rights, these courts have at all times taken 
 g'.'od care that the right should bo ascertained before their jurisdiction by in.junc- 
 timi is exiTcised. In all applications of the kind the first (piestion to be detcr- 
 uiiiiid is the legal right. Jf the court doubt tliat, it may commit inju^iicc by 
 iiitirfi r:ii;j ii:-til it be decided. A great objection to granting an injunction before 
 thi'k':;al rii;lit is ascertained is that the granting of ihe writ it.-cir operates ujion 
 the fjuestion before that question is discussed and determined iri the ordinary 
 ni'iJc. llonco courts of e<|uity, unless quite clear as to the legal right, have 
 iliiirnd it, the safer course to abstain from exercising thrii' jurisdiction until the 
 L-tcniiiiiation of that right: f^va Riytiy v. (Jrent Wesicrn Ruduay Co tt al, 1 (,'oop. 
 ' 1. o; Cl'ii/liin v. Aitorney-ticiieral, lb. 139; Sauiider.s el al v. Smith el al, i. M. 
 >'^.711; Bramwell v. Ilnlcomb, Ib.'i'.i'i; Pidliny y. Ilmr. 8 Sim. 477; Colturdy. 
 -1 '.^.«, 4 II. i C. 4S7; Rinycr v. Dlnkc, 3 V. it C, 591 ; Siiutk v. E^yer, 3 Jur. 790 ; 
 
 
 Ilia.; 
 
 i., 
 
 4 
 
 
 
 

 470 
 
 WRITS OF MANDAMUS AND INJUNCTION. 
 
 [s. 9. 
 
 If ' 
 
 m 
 
 ■'-I 
 
 
 K- 
 
 hereinbefore provided, with respect to Mandamus, (o) claim 
 a Writ of Injunction (p) against the repetition (q) or con- 
 tinuance of such breach of contract or other injury, (?•) or the 
 
 SpolHsicoode v. Clarke, 2 Phill. 154; Stevens \. Keating, lb S33; Semple y. Th 
 London and Birmingham Railway Co. 1 Rail. Cas. 120; Electric 'lelef/rajih Co. v. 
 Ifott et al. 1 1 Jur. 157 ; England v. Curling, 8 Bear. 129 ; Bridson v. McA/pine, Ih. 
 229; Haines v. Taylor, 10 Beav. 75; ^or<<A v. ITeAitfr, 10 Beav. 561; lAilms. 
 Williams, 4 Ilnre, 404; Iladfieldy. Manchester South Junction and Altri>iijhm. 
 Railway Co. 12 Jiir. 1083; Dakin v. The London and North Western Raihvny Co. 
 13 Jur. 579. There are, however, cases in which equity, in the cxorcisL' of its 
 peculiar jurisdiction, will grant relief by injunction, though there be no kgal suh. 
 sisting right, as in cases of breach of trust, confidence, Ac. : see Princr Alhnts. 
 Strange et al, 1 Mac. & G. 26; and on the other hand some cases in which cr|iiitv 
 .will not interfere though there be the legal right: see Duke of Bedford v. Bnhk 
 Museum, 1 Coop. C. C. 90; Davenport \. Davenport, 7 Hare, 217; Clark \\ /'re. 
 man, 11 Beav. 121; Sainter v. Ferguson, 1 Mac. & G. 286. "Where a court nf 
 equity sees that there is a question between the parties, and that that qucstiin 
 may be dealt with but cannot be wholly decided at law, while a part of tlic iclif 
 sought by plaintiff can only be obtained in equity, the court of equity will, i ii 
 a motion for an injunction to restrain an action at law, grant the injuiution uniil 
 the hefiring of the cause: The Athenceum Life Assurance Co. v. Pooleii H ul. 
 27 L. T. Rep. 232. But it must be on plaintiff's paying into court the amount, it' 
 any, due from them to the defendants in equity, and imdertakiug to pay what 
 may become due up to the hearing of the cause : lb. 
 
 (o) It has been contended that the words " in like case," as used in tliis section, 
 mean in actions of the same description as mentioned in section 1, whicli givtj 
 the remedy by mandamus in any action except "ejectment or replevin." But 
 whether these two forms of action are to be excepted from the operiitiou of the 
 section here nnnf>tated has been made a question : Fraser v. liohius, 3 U. C. L. J. 
 112. In England an injunction has been refused in an action of ejectment: Bnfis 
 v, LeGroa ct al, 2 C. B. N.S. 318; and such, notwithstanding some cases to tiie 
 contrary. Bell v. White, 3 U. C. L. J. 107; Robins v. Porter, 2 U. C. L. J. 2:;"; 
 Fraser v. Robins, 3 U. C. L. J. 112; is now the settled practice here: Land v. 
 Gilkison, 7 U. C. L. J. 151. 
 
 (/)) The effect of these .sections as to injunctions is to allow it only to plaintiiTi 
 claiming unliiiuidated damages : Curnes v. Nisbett, 4 L. T. N.S. 658 ; s. e. 30 L. J. 
 Ex. 348 ; and in sucli cases to give the same power to a court of law as to grf.nt- 
 ing an injunction which courts of equity exercise in cases where the iiijiuiction is 
 granted without terms ; in other words, the courts of common law will only gi'iint 
 an injimctiiin where, under similar circumstances, a court of tquity wuulil i;raiit 
 an ab.sohito injunction : Mines Royal Societies v. Maynay, 10 Ex. 489. Inti'rlucu- 
 tory injunctions seem to be grantable under sections 12, 13. 
 
 (y) Fraudulent use of trade marks: Crawthay v. Thompson et al, 4 M. A G. o'lT; 
 Rodgers it al v. Noirill el al, 5 C. B. 109. Piracy of designs: MiUingen v. I'ichv, 
 1 C.'B. 799. Infringement of patents: Mayall v. Higbey, 31 L. J. Ex. 329; llmi- 
 ingtoH v. Lutz et al, 13 U. C. C. P. 108 ; Stead v. Williams' et al, 7 M. & G. 818 ; Kii'- 
 .sell V. Ledsaw. et al, 14 M. & W. 574 ; or of copyrights: Wright v. Tallis et al, 1 C. 
 B. 893; making and selling reduced copies of photographs: Mayall v. ///,'/''"'. 
 1 II. »t; C. 148; manufacture of plowshares : Huntington v. Lutz et al, 13 U.C, C'.l'. 
 108 ; may be cited as examples. 
 
 ()•) This part of the section will apply either to the continuance of a wronj 
 properly so culled, for instance, a trespass by placing stakes on plaintiffs hai 
 
S3, 10, II.] 
 
 PROCEBDINOS. 
 
 471 
 
 committal of any breach of contract or injury of a like kind 
 arisin" out of the same contract or relating to the same pro- 
 perty or right, (/) and he may also in the same action 
 iociude a claim for damages or other redress. (/) 19 Vic. c. 
 43, s. 283. 
 
 10. (w) The Writ of Summons in such action {v) shall The Snm- 
 
 be in the same form as the Writ of Summons in a personal indorscucnt 
 setion, (w) but on every such Writ and copy thereof, there 
 shall bo indorsed a notice, that in default of appearance the 
 riaintiff may, besides proceeding to Judgment and Execution 
 for damages and costs, apply for and obtain a Writ of Injunc- 
 tion, (.c) 19 Vic. c. 43, s. 284. 
 
 11. (o) The proceedings in such action (6) shall be the The pro- 
 same as nearly as may be, and^ subject to the like control as be'^^.siSr'io 
 ;lie proceedings in an action to obtain a Mandatnus under *''"^'' '" 
 
 ami continuing them there notwithstanding a verdict in plaintiffs favour : Bowycr 
 V. Cook, 4 C. B. 236 ; or of a breach of duty arising out of a contract, for instance, 
 a covenant to lieep insured : Dormay v. Borradaile, 5 C. B. 380; see further Love- 
 kkv. Franklyn et al, 8 Q. B. 371 ; Cannock v. Jones, 3 Ex. 233. 
 
 (s) These words may be held to apply to a class of cases where a party violates 
 coiifidenco reposed in him as an agent, who, having obtained possession of pro- 
 I'l.rty iBlongiiig to his principal for a given purpose, in fraud of that principal, 
 appropi'iates it to some other purpose : see Phillips et al v. JJuth et al, 6 M. & W. 
 5?i; EJen v. Turtle, 10 M. <fe W. 635 ; Hatfield v. Phillips et al, 14 M. & AV. 66.5 ; 
 see also Sykes v. Giles, 5 M. A AV. 6-15 ; Raleigh et al v. Atkinson, 6 M. <fc "W. 670 ; 
 Mimod V. Ntaie, 10 M. <k W. 206. 
 
 [t] Plaintiff claiming a writ of mandanms must allege either that he " sustains 
 or may sustain damage from the nonperformance of the duty" to be fulfilled: 
 section 2. But when claiming an injunction, it would seem from the peculiar lan- 
 jruage of this section, he may or may not in addition " include a claim for damages 
 orothei- redress." i?he granting or refusing of the writ is discretionary with the 
 court: Cumrs v. Nesbitt, 7 H. &, N. 778 ; Jesxel v. Chaplin et al, 2 Jur. N. S. 931 ; 
 Liiiikii V. Waffuer, 1 DeG. M. «fe G. 604 ; London and South Western JiaHivay Co. 
 V. Wtbb, 15 C. B. N.S. 450 ; Matthews v. Kimj, 3 II «fe C. 910 ; Sutton v. The Sonth 
 Eidern Railway Co. L. R. 1 Ex. 32. 
 
 (w) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 80. 
 
 (i') Such action, i. e. an action brought for a breach of contract or other injurj*, 
 and such ns mentioned in the preceding section. 
 
 (ii) See Form A. No. 2 C. L. P. Act. 
 
 it) Plaintiff must indorse the claim for injunction on his writ of sumnionM, and 
 failing to do so can have no injunction: Arklandv. Hall, 2 I'rac. 11. 388, Besides 
 t!ie form of indorsement must comply with that given in the statute: Ititchey v. 
 f/a' Toronlo Roads Co. 23 U. C. Q. L\ 62. 
 
 (-1) Taken from Eng. Stat. 17 &. 18 Vic. cap. 125, s. 81. 
 (t) Such action. See note v to section 10. 
 
 1^ |t| 11 
 
 if< 
 
 
WW- 
 
 m^H 
 
 ' 1 V, 
 
 472 
 
 WRITS OP MANDAMUS AND INJUNCTION. 
 
 [s.l2. 
 
 
 pi SOS of 
 Mindamus. 
 
 the provisions hereinbefore contained, (r) and in such action 
 Judgment may be given that the Writ of Injunction do or do 
 not issue as justice may require; (d) and in case of disobe- 
 dience, such Writ of Injunction may be enforced by attach- 
 ment by the Court, (e) or when such Court is not sitting, by 
 a Judge. (/) 19 Vic, c. 43, s. 285. 
 
 13. (g) The PlaintiiF may at any time after the com- 
 
 (c) A domnrrer to ft claim for tlie writ in tlie declnrntion will not be nllowod 
 unless the ileularation clearly sliow the remedy by injunction innpjilicnble: Bilh 
 ct al V. The London, Chuiham and Dover Railway Co 3 II. & C. 95. Tiie claim is 
 merely ii preiimiminary formality to enable the plaintiff to ask for an iDJiinction 
 at tlie proper time. It canaot, therefore, be pleaded to : Booth v. Taylor, L. R 
 lEx. 51. 
 
 ('/) The liniily of the jurisdiction of courts of law as to injunctions arc not yet 
 well detined. Courtfi of equity constantly decline to lay down any rule wimli 
 may limit their powers or discretion. For this reason, and owing to the diftlr- 
 enco in the constitution of courts of law and of equity, the latter courts no doubt 
 will, with respect to writs of injunction, exercise a more extensive jurisdiction tliiin 
 courts of law. Tiu' absence of a remedy in other courts for a suppose:! wron^ij 
 not of itself a fi\ifficient reason to entitle courts of equity to assume jurisdictinn: 
 Jii/vrx V. The Duke of Wrllitifflon, 9 Bcav. 579. Tlicre must be in each case wliorcin 
 npidication is made to a court of equity for an injunction, circumstances at k'nft 
 disclosiiiix equitalile if not lei^al ground for relief: see Ilnmmon v. Salyicick, 
 C Hare, liSti; also Smith v. Jeyen, 4 IJeav. f>i\%; Eiiylnnd v. Curlin^" 8 Beav. 1'29; 
 Hall V. IJall, 12 Beav. 414. If there be a dear le^jal remedy for tlie suppoiL'tl 
 Avron}^ in courts of law, equity will not interfere: Clark v. Freeman, 11 lieav. 
 112: also Goodheart v. Lowe, 2 .1. & W. 349; Bailu v. Taylor, 1 Russ. <fc M. 73; 
 Southeif V. Shenocod ct al, 2 Meriv. 435. But if there be no remedy or m 
 insufficient remedy at law, and there be equitable as distinct from lej^al firroiir.I«, 
 equity will interfere: Ridgway v. Roberts, 4 Hare, 106; also Grentrex v. Ormir'/, 
 1 DcG, & S. 692; Abemethy v. Hutchinson, 1 IT. tfe T. 28; Bouth v. If. //<■..-, 
 10 Beav. 561; Prince Albert m. Strange el al. 1 Mac. »t G. 25; McCren v. HM' 
 worth, 12 .Jur. 820; Gear7/ v. Norton, 1 DeG. it S. 9; Dickens \. Lee, 8 Jur. 18:'. : 
 Kelly v. Hooper, 1 Y. & Q. Cy. C. 197 ; Chapped v. Purday, 4 Y. & C. 485. "Wliore 
 any act involvinjr a breach of trust is intended to be done, thousjh not in its cnii- 
 qnences irremediable, courts of equity will prevent it by injunction: Altcrno- 
 General v. Anpinail, 2 M. & C. 613. Thus an ii.junction was fjrantcd to restrain 
 the disclosure of secrets, of which defendant received a knowledge in tiic course 
 of a lawful employment: Evitt v. Price, 1 Sim. 483. But courts of equity will 
 not e.rercise any jurisdiction in criminal cases when tiie acts are of such a iin'iir'' 
 as to iijuriousiy aflect rights of property: Springhead Spinning Co. v. Ri'iiil. I- 
 li. G Eq 551. 
 
 (e) The proceedings to enforce obedience to a writ of injunction undc tlils 
 section will resemble tliose of enforcing the performance of awards, as to whicli 
 see note ■ to section 1G3 C. L. V. Act. 
 
 (/) Tlie power of a judge to act is only wlien the court is not sitting. Hence 
 during the term no single judge can issue an attachment under this section. 
 
 (g) Taken from Eng. Stat. 17 ck 18 Vic. cap. 125. s. 82, the origin of wliid. 
 spems to !)<■ Eng. Stat. 15 it 10 Vic. cap. S3, s. 42, as to infringements of Ictttii 
 jiateut tor invention. 
 
E.12.] 
 
 INTERLOCUTORY INJUNCTIONS. 
 
 473 
 
 niencenicnt of the action, nnd whether l)erore or after wiu'n in- 
 Ju(ip:mcnt, (/) apply ex partcio the Court or a Jutlge (y) n.iy i." iiii.i 
 for a Writ of Injunction to restrain the Defetidaiit in such I'.iuuyiit." " 
 aciion (Jc) from the repetition (/) or continuance of the 
 wronj.'ful act or breach of contract complained of, (??/) or the 
 coniiuiltal of any breach of contract or injury of a like kind, 
 arising out of ti.3 s:ime contract or relating to the same pro- 
 perty or right; (//) and such Writ may be granteu or deriiud 
 by the Court or Judge upon such terms as to the duration of 
 the Writ— keeping an account — giving security— or otherwise, 
 33 to such Court or Judge seems reasonable and just; (o) 
 
 [h) Tlio action intoiided is one for "a broach of contract or otlicr injnry:" sec- 
 tion 'J; which admits of a " rcpt'tlLion " or " conliniianee.'' 
 
 (i) This section appears to apply to interlocutory injunctions: Frastr v. 
 BiMns, !5 U. C. L. J. 112. The object of the interference of tlie court by in(ei-h)- 
 iiitory injunction between two parties wlio are at issue upon a le;jr!ii rijiiit ia 
 Eokly tile protection of the pr;'perty in dispute, until tlie le^iil ri^lit ehidl be 
 (isccrtaiiied : Ilarmany. Jones, 1 Cr. it Ph. 20'J. \J\Hm motion of a jilaintilf stating 
 tliiit unless the court granted the writ he would sustain considerable loss before 
 the action was tried, the court granted a writ upon the terms that the piaintilT 
 wouKl speed the action, and if the jury found for the defendant, -would, if the 
 court so ordered, pay to the defendant any sum which tho jury should award 
 toliim as compensation for the danifiKCS sustained by reason of the interference 
 cf the court in granting the writ: Lonf/fidd v. Cusltman, 11 Ir. C L. 11. App. 
 x.\lii. The interference of the court by interlocutory injunction maj' be invoked 
 uudiT this section in cases of infringements of patents and copyrights, but with 
 req)ect to these, courts of equity are disposed rather to restrict tlian increase the 
 miiiiber of cases in which it interferes by injunction before the establishment of 
 the lejral title: McNeill v. WiHiams, 11 Jur. «!■!. It is necessary to give great 
 weiiiiit to the question which side is more likely to suifer by an erroneous or 
 iiasty judgment, and also to consider the prejudicial ellect the injunction niuy 
 have oil the trial of the action : lb. 
 
 (j) Tlie rule for the injunction must ha nki in tlie tirst instance: Giticns v. 
 Sj/mti, 15 C. B. 3G2; Warren v. Munroe, 2 U. C. L. J. 2U!t. 
 
 {k) Such action : sec note h to section 12. 
 
 (') See note q to section 9. 
 
 (m) See note r to section C. 
 
 («) See note a to section 9. 
 
 (") l'{ic)n the in\nsion of a jiatent right tho ]inrty enmphiining has in equity a 
 rizlit to till protection of on injunction, although the other party may jironiise to 
 C'Miiiiiil, no further infringement and may olTer to \my the costs of ))i'eparin;r tho 
 bill: Geary y. Ncrfon, 1 DeG. it S. 9. An injunction being aiiplied foi', it i- not 
 Milfuieiit for the defendant to admit the infringement and promise, not to repeat 
 it: y,o,»A V. Hague, Web. I'at. t'as. 200. And if infringement be shown, proof of 
 ftijiiyriient for twelve j'cars establi;;hes a prima facie case ibr an injunction : Neihon 
 fl "I V. T/wmpfon el al, Web. Pat. ("as. 277. "Where a patent is new tho court of 
 equity considers the proof of the title iu the patentee to be wanting, inasmuch as 
 
 
ml''' ' 
 
 Is 
 
 ' !;n 
 
 
 474 AVRITS OF MANDAMUS AND INJUNCTION. [s. 12. 
 
 and in case of disobedience, such Writ may be enforced by 
 
 the public hnvo had no opportunity of contostinj; tlio validity thereof, nnd there- 
 fore in suci) ft case refuses to interfere by injunction until the title is estnbli^hod at 
 law: Caldwell v. Van Vlissengen, 9 Hare, 415. Plaintififs licensed defendant to 
 use a patent at the annual rent of £2000, reserving the power of deternii'>in<' tli« 
 lease in default of payment. Tiio defendant failed to pay the entire rent, i)ut tlio 
 plaintiffs allowed him for several years to use the patent, and received payments 
 on the footing of a reduced rent: Held that by so doing the plaintiffs had oleuted 
 not to treat the previous breach as a forfeiture of the license, and that con- 
 sequently they were not entitled to an injunction restraining defendant from 
 using the patent ; Warwick v. Hooper, 3 Mac, & G. 60. On an application for an 
 injunction to restrain the infringement of a patent, the party applying nuist 
 swear that, at the time of making the application, he believes that at tlie date of 
 the patent the invention was new, or had not been previously known or used ia 
 the Province: Slurz v. Z>« la Rue, Russ. 322. A court of equity will not inter- 
 fere upon the application of an author to restrain the publication of a work which 
 is of such a nature that an action could not be maintained for damages: Southcy 
 V. Sherwood el al, 1 Meriv. 485. 
 
 Courts of law must, under the injunction clauses of this act, do as nearly as jiossi- 
 ble as courts of equity would do in similar cases: Gittiniy.Symes, 15C. IJ. Si)i,per 
 Jervi3,C. J.; sac Briasonv. Benccke, 12Beav.l; McCreav. Iloldsworth, 12Jur.820; 
 Bridion V. Mc Alpine, 8 Beav. 229 ; Dickens v. Lee, 8 Jur. 183 ; Kelly v. Hoopir, 1 Y, 
 & C. Cy. C. 197 ; Sweet v. Cater, 11 Sim. 572 ; Bacon v. Jones, 4 M. & C. 4:j3; Col- 
 lard V. Allison, lb. 487 ; Sweet v. Maugham, 11 Sim. 51 ; Saunders et al v. Smith et 
 al, 3 M. A C. 711 ; Curtis v. Cults, 8 L. J. N.S. Cy. 184 ; Leicis v. Fullarton, 2 Beav. 
 6 ; Motley v. Downman, 3 M. di C. 1 ; Martin v. Wright, 6 Sim. 297 ; Bailyv. Taylor, 
 1 Russ. & M, 73 ; Young v. White, lb. 532. A court of equity, where justice 
 requires it, will grant an injunction to restrain a piracj', on the application of a 
 person having only an equitable title: Chappell v. Purday, 4 Y. <fe C. Cy. C. 485; 
 Hodges et al v. Welsh, 2 Ir. Eq. R. 266 ; Mawman v. Tegg, 2 Russ. 385. But courts 
 of equity are averse to the practice of their time being occupied by applications 
 for injunctions to restrain infringements of copyright in cases in whieli it is diffi- 
 cult, if not impossible, to take an account of the loss of which complaint ir^ made: 
 Bell et al v. Whitehead, 8 L. J. N.S. Ch. 141 ; s. c. 3 Jur. fiS. The English Patent 
 Law Amendment Act, 15 tfe 16 Vic. cap. 83, s. 42, was held to vest in any English 
 court of common law in which an action for the infringement of a patent is iicnd- 
 ing, the powers before exclusively exercised by courts of equity ; and to enable 
 courts of common law to grant either by interlocutory order an account of all 
 patent articles sold during the suit, or after verdict for the plaintiff, and as part 
 of the final judgment in the action, an account of all profits made by the defendant 
 since the commencement of the action, and after notice that au account would be 
 required. But that no court of common law has power, where damages, nominal 
 or substantial, have been recovered by the plaintiff, to order an account of profits 
 made by the defendant prior to the commencement of the action, the damnges 
 assessed by the jury being considered as the compensation for the loss of such 
 profits: Holland v. Fox, 3 El. &. B. 977. Where an action is brought for the 
 infringement of a patent, a retrospective account of the defendant's sales and 
 profits of the patented article will not in general be granted before judgment; 
 Vidi v. Smith et al, 3 El. & B. 969. Upon reasonable evidence of the existence of a 
 valid patent, nnd of its infringement by the defendant, and of the defendant's 
 making a profit thereby, defendant may be ordered to keep an account of all sales 
 to be made of the article alleged to be an infringement, and of the profits thereon, 
 until further order of the court, upon condition of the plaintiff's waiving all right 
 to more than nominal dnmnges at the time of the action, and undertaking, in case 
 the verdict and judgment should be in favour of defendant, to pay the expense of 
 
acps, iioniina! 
 
 12.] 
 
 DISCnAROING OR VATtYfNO WRIT. 
 
 475 
 
 attachment by the Court, (p) or when such Court ig not 
 sitting, by a Judge. (</) 
 
 13. (?•) Any order for a Writ of Injunction made by a wnts and 
 Judge, or any Writ issued by virtue thereof, may be dis- \v',.'iis"tf"i.o 
 charged, varied or set aside by the Court on application "'',',ti',,i'',f 
 made thereto by any party dissatisfied with such order, (.s) *'"^ ^'''"''** 
 10 Vic. c. 43, s. 28G. 
 
 kccpinir such an account. The court, under the 15 & 10 Vic. cap. 83, s. 42, will 
 only direct an account to be taken of the profits which l)a(l been actually made by 
 the ilt'fi'ndaiit, and not of the losa which the plaintiff has sustained b^- tlie infriiij^je- 
 nient ; Elwood el al v. Chiisly et al, 1 8 C. B. N.S. 494 ; and in the case of an assij^tieo 
 a piitoiit tlie account will be taken only from the date of the registration of the 
 as,si^'niiic'nt under section 35 of that act: Ih. But the act here annotated does not 
 go SI) far even in this respect as the Enjy. Stat. 16 & 16 Vic. cap. 83, s. 42. The 
 section, it will be observed, though empowering the court to grant an injunction 
 ordering defendant to keep an account or otherwise, docs not, it seems, give power 
 to tlie court of common law to order an account to bo taken of the profits or to 
 order the defendant to[)ay: Iluntinylony. Lutz el al, 13 U.C.C.P. 168. A plaintiff 
 liiivin;; obtained an ex parte injunction pending an action for a nuisance, and after- 
 Wiiids neglecting to proceed with tlie action as promptly as he might, the court 
 lieM tliat sucli neglect was a sutticient ground for dissolving tlie injunction : Dunn 
 V. Nditlor, 30 L. T. Rep. 285. An injunction had been obtained restraining the 
 defendiuits from carrying on certain works, and upon motion for costs of a rule 
 fur attachment for breach of it, the court held that the injunction was a continu- 
 iiii; one: De LaKue et al v. Fort"""'"' et al, 2 H. & N. 324 ; see further as to this 
 SL'ctioii the observations of .Stuart, V. C. in Edwards- Wood v. Baldwin, 9 L. T. N.S. 
 471, and the observations of the lords justices in Swaync v. The Great Nor/hern 
 Kiiihfui/ Co. 9 L. T. N.S. 745 ; and as to practice in Chancery in patent cases, 
 see Price's Patent Candle Co. v. Bauicen's Patent Candle (Jo. 4 K. »fe J. 727. 
 
 (p) See note e to section 11. 
 [q] See none/ to section 11. 
 [r) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 82. 
 
 (•«) bnmediately after the delivery of declaration in an action for nui.sance by 
 lioiling carrion for a dog kennel near plaintiff's residence, an injunction restrain- 
 ing defendant from continuing the nuisance was granted ex parte at chambers, the 
 order of the judge imposing no terms and making no mention of costs. The writ 
 ciintained an order on defendant to pay the costs of the application, the order and 
 the writ, which costs were taxed against defendant. Ti>c trial of the action having 
 been jiostponed on plaintift"s countermand from the spring assizes to the summer 
 assizes, defendant in the meantime obtained a rule calling on the j>laintitt' to show 
 why all further proceedings on the writ of injunction should not be stayed until 
 alter the trial of the cause, and on the argument the court declined to make tho 
 rule absolute in the terms in which it was moved, as that would be practically set- 
 tin;; the injunction aside, and the nuisance might be recommenced immediately; 
 but as it was unjust that defeiulant sliould pay the costs of the injunction when it 
 niiirjit turn out lie had committed no nuisance at all, they made the rule absolute 
 til .4iiy all proceedings in respect of the costs until after the trial of the action : 
 Grimllei/ v. Booth, 12 L. T. N. S. 409. When an injunction has been granted .. 
 continues to exist until disdiarii-ed, and tlie plaintiff may at any time apply for 
 ail iittaehnicnt iu case of disobedience: Ve LaRue ct al v. Fortcacue et al, 2 U. 
 i- X. 324. 
 
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 ABSCONDING DEBTORS. 
 
 C'liN. Stat. U. C, Cap. 26. 
 
 Alt vlct respeotin.g Absconding Debtors. (/) 
 
 Her Majesty, by and with the advice and consent of the 
 Logishitive Council and As.sembly of Canada, enacts as 
 follows : 
 
 WHO IS AX ABSCONDING DEUT(M!. 
 
 1. (J)) If any person resident in Upper Canada (r) in- 
 
 (a) The laws ns to abscoiuling dubtors have fur a lonjj time been peculinr to 
 this r ■)vinco, ami the provisions are original, not haviiitj been ilirectiy copiod 
 from lie statute book of any foreign state. In this Province the load has been 
 take- even of Kngland. The first English act upon this subject was 14 & \n Vic, 
 cap. 22, passed 1st August, 1851. It falls far short of the completeness of ours. 
 The object of these laws is to secure the property and efTects of an absconding 
 debtor, and indirectly to force him to put in special bail. The law of arnst is 
 designed to attain the same end bj' different means. For a very full and interest- 
 ing review of all our laws upon the subject of absconding debtors, and a compari- 
 eon of remedies given in division courts with those in tiio superior courts, see 
 Francis v. Brown et al, 11 U. C. Q.B. 558. Thi.s act, which was ori";ina]ly a part 
 of the C. L. P, Act, 1856, has not, since the bankruptcy net of 1864, been as much 
 in use as when wo had no bankruptcy law of any kind ; but it is not obsolete; 
 cases occa.sionally arise under it, and for this reason the editor has thought it 
 better to reproduce it with notes. 
 
 {h) TI\is section in some respects resembles the old acts 2 Wm. IV. cap. 5, s. 1, 
 and 14 tt 15 Vjc. cap. 10, s. 1. 
 
 (c) "7/ any person resident" <fcc. The old act, 2 Wm. IV. c. 5, s. 1, did not 
 thus describe defendant. It was simply as follows : "If any person being indebteti, 
 ttc. shall, ttc." And there was much difference ot opinion as to wlictlier tlie 
 legislature really did not intend to restrict the act to defendants absconding wlio 
 had been formerly residents. The several opinions of Robinson, C. J. Sherwood, 
 J. and Macaulay, J. upon this question, will be found in Ford v. Lusher. 3 0.!S. 
 428. The Absent Defendants' Act, 14 & 15 Vie. cap. In, s. 1, was express upon 
 the point, so far as concerned proceedings taken under that statute, i. e. : " Pro- 
 ceedings may be commenced, «fcc. against any person who, haviiiij resided in rpjier 
 Canada, is absent therefrom," &c. What is the scope of tho term " resident,' as 
 used in this section, and under what circumstances can defendant bo said to be a 
 
8.1.] 
 
 WHO IS AN ABSCONDINO DEBTOH. 
 
 477 
 
 debtee! ('0 to any other person, (c) departs from Upper wii<. to i.n 
 Caiiadii with intent to defraud his creditors, (/) and at the mMlw!l.X 
 time of his so departing, is possessed to his own use and '">^ '''''''""■• 
 benefit, of any real or personal property, credits or effects 
 therein, (j/) he shall bo deemed an absconding debtor, (/t) 
 and Ilia property, credits and effects aforesaid, may be seized 
 and taken for the satisfying of his debts by a Writ of Attach. 
 ment. (t) 19 Vic. o. 43, s. 43. 
 
 rositlcniV Persons wliose usiinl and nccustometl home is in a foreign country, but 
 wlif) CDino to Ciiimda occiiMionnlly on business, cannot by any lalitiidc of construc- 
 tion bo di'soribed as residents of Canada: sec Ford v. Lusher, 3 O.S. 428, and 
 Toiihr v. Nirholl, 1 U. C. Q. B. 416. If a defendant seoli to set aside an attacli- 
 imiit issued apiin.st liiui as an absconding debtor, on the ground tiuit " lie never 
 lived or was in Ui)per Canada for such time or juirposc as to bring biin witiiin 
 tiio mciiniiig of tliis act," lie must sliow those facta clearly to tlio court: The 
 Nuvjara Harbour and Dock Co. v. Smith, M. T. 7 "Vic. lUS. R. A II. Dig. 
 "Absconding Debtor," 22. Where a person usually residing in Scotland came to 
 tliid Province to settle some affairs, and while hero referred disputes concerning 
 them to arbitration, iipon which an award was made against him, but not pay- 
 able for two j-enrs. 15ofore the expiration of the two years he left the Province. 
 Held that ho was neither a "debtor" nor an " absconding debtor " within the 
 meaning of 2 \Vm. IV. cap. 5; Taijlor v. Nicholl, 1 U. C. Q. B. 416. 
 
 ((/) The word "indebted" as used in this section would seem to exclude the 
 presumption that an attachment can be granted for nn unliquidated demand, 
 unless the demand be of such a nature that plaintiff can make oath to the amount 
 thereof as in ordinary affidavits to hold to bail. Such, for example, as demands 
 for work and labour, goods sold and delivered, Ac. where no specific price has been 
 agreed upon and the amount of indebtedness depends upon the quantum meruit 
 or quantum valebat: see Clark v. Ashfield, E, T. 7 Wm. IV. MS. II. «fe II. Dig. 
 "Absconding Debtor," 17; see further C. L. P. Act, section 288, note j. 
 
 (e) The old restriction as to the party being indebted to " an inhabitant of this 
 Province," 2 Wm. IV. cap. 5, s. 1, in order to warrant proceedings has been aban- 
 doned. Indeed, it was repealed as early as 6 Wm. IV. cap. 6, s. 2, of that year 
 and reign. Where defendant being sued as an absconding debtor under the old 
 practice, moved to set aside the attachment and subsequent proceedings several. 
 months after the last proceeding was had, on the ground that plaintiff was not an 
 inhftbitnnt of this Province, but did not in his affidavit negative indebtedness to 
 any inhabitant of this Province, his opplication was refused: Fisher et al v. 
 Btach, 4 0.S. 118. 
 
 (/) As to question of intent generally under analogous provisions, see Gottwalls 
 V. kuthoUand, 15 U. C. C. P. 62 ; Bank of Toronto v. McDougall, lb. 475 ; Tuer v. 
 Harrison, 14 U. C. C. P. 449; Spirett v. Willows, 11 L. T. N.S. 614. 
 
 ((j) The fact of possession of land is prima facie evidence of a seisin in fee. A 
 person in ]>ossessioa of land without other title has a devisable interest: Aahtr 
 tt ux. V. Whillock, L. R. 1 Q. B. 1. 
 
 CO As to the ordinary proceedings against defendants, whether British subjects 
 or foreigners, out of the jurisdiction of the court: see ss. 43, 44, 45. 
 
 (i) The writ should be issued by the clerk of the process ; Wakefield tt al v 
 Bruce, 5 Pruc. R. 77. 
 
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 ABSCONDINO DEBTORS. 
 
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 AFFIDAVIT 10 OUTAIX ORDER FOR ATTACHMENT. 
 
 l.-4ll TMB HUPCBIOR CllUKTS. 
 
 Pnx .•! diriKs 3* ('«') Upoo affidavit made by any FlttintifT, his scrvknt 
 vit thauii'i or ageot, (/) that any person so departing is indebted to such 
 hBt'irii'i'.'-"* Plaintiff in a sum exceeding one hundred dollars, (m) and 
 ■voiiat.!. kc. stating the cause of action, (n) and that the Deponent hath 
 good reason to believe and dcth verily believe that such per- 
 son hath departed from Upper Canada and hath gone to 
 (stating some place to which the absconding Debtor is 
 believed to have fled or that the Deponent is unable to 
 obtain any information as to what place he hath fled,) (o) 
 with '»;ent to defraud the Plaintiff of his just dacs, (p)or 
 to ax-.d being arrested or served with process, (q) and upoo 
 
 (*) Much r.'fl'y,:iblc. ; Stii-. V. C. 2 Wm. IV. cap. 5. 8. 1. 
 
 («; '^.I'.ii siiJ'.b-. nil' ...ling these affiJavHs will be to follow, as closely as 
 
 po8:<iliie, Ut< nt t-«laU:i|^ oiiiinoii afflilavits of dvbt: Anon 2 O.H. 202, per Uobin- 
 Bon, C J, Tlie gaino CfrU>i;ily must be observed in ntHdavitn for suiug out attarh 
 meuts ns ii> ntlidavits to hold to bail : the debt to be as certaluly sworn to in the 
 one cnsc na in the other; ilcKtmie v. Iiu$»ell, 3 0. b. Sl.'i, f><T Kobinsun, C. J. 
 To allow any unlimited degree of uncertainty in them would of course lead to 
 abuse. An atfidavit fur an attachment in which the debt was sworn to na boitii' 
 for mone}' lent and advanced to the defendant, without saying by whom, was iield 
 to be defective: lb. An affidavit of a plaintiff stated that the defendant was 
 indebted to tho plalnttfTs in the amount of certain promissory notes, which were 
 deecrllH'd, showing them to be overdue and hold by the plaintiffs, ami that 
 defenilHnt had departed, Ac. with Intent to defraud plaintiffs, held suflicient: 
 Wnkrfifld ft al v lituee, 6 Prac. R. 77. It Is not necessary that the plaintiff 
 should swear that the debtor was residing in this Province if that fact be aworn 
 to by other iHsrsoua: //'. It is suDicieut to show that the debtor intended to 
 defraud thupluiniiffs witliout showing an intention to defraud creditors generally: 
 76. The affidavits should not be intitled in any cause before the issue of tiie writ, 
 but arc uut theteby vitiated: lb. Where a warrant of attachment had been 
 issued against an absconding debtor under the practice that prevailed previuua 
 to this act, and the notice thereby required bad been duly given, a writ of attach- 
 ment was granted under this act without a new affidavit: Soit et al v. Cook, 
 8 U. C. L. J. 48 ; Suchanan v. Ferrii, 3 U. C. L. J. 48. 
 
 (m) The former minimum limit was five pounds: 2 Wm. IV. cap. 6, s. 1. The 
 minimum is here stated to be $100, obviously with reference to the Division 
 Coarta Act, which gives a remedy by attaclimcnt in those courts for any sum not 
 exceeding $100, nor less than twenty shillings. At the time when tne former 
 acts were passed, fixing the minimum at £5, the inferior courts bad not the juria- 
 diction just mentioned. 
 
 (n) Which must be a debt of some kind : see note d to section 1 of this act 
 
 (o) " Ilath departed this Province, or is concealed within the game," were the 
 material words of the old act: 2 Wm. IV. cap. A, s. 1. 
 
 (p) As to when there is a debt: see note d to section 1. 
 
 (q) These words are exactly the same as those used in repealed StaU i Wm. 
 IV. cap. 5, s. 1. 
 
89.3,4.] 
 
 CAU8I8 IN COUNTY COURTS. 
 
 470 
 
 led SUt 2 Wm. 
 
 the further affidavit of two other credible persona, (r) that Kurtiur 
 they arc well acquainted with the Debtor mentioned in the 
 first-named affidavit, and have good reason to believe and do 
 bclicrc (h) that such Debtor hath departed from Upper 
 Canada with intent to defraud the said I'laintiff, or to avoid 
 being arrested or served with process, (0 either of the 8upe< 
 nor Courts of Common Law or any Judge thereof, or the 
 Jud<rc of any County Court, may, by rule or order, direct a 
 Writ of Attachment to issao from cither of such Superior writnf At- 
 Courts, (h) and may in such rule or order appoint the time i»»ub!""' 
 for tbe Defendant's putting «n Special Bail, which time shall 
 be regulated by the distance from Upper Canada of the place 
 to which the absconding Debtor is supposed to have fled, 
 having due regard to the means of and necessary time for 
 postal or other communication, (v) 19 Vic. c. 43, s. 44. 
 
 3. Ilepcaled by Stot. 23 Vic. cap. 42, s. 1. 
 
 2.— In Coi'NiT Courts. 
 
 4. (f>) In case the sum claimed be within the Jurisdiction in oasts la 
 of the County Courts, (c) any such Court or the Judge or coiU'w, 
 
 (r) Qu. A ro witnesses "credible" if pccuDlarily interested? No person can 
 now bo I'xoluded by reuson of incapacity, crime or Interest, from givini^ evidence 
 cltlier ill )iersou or by deposition on tlie trial of any issue joined, (fee. : :!:< Vic. c. 
 \'i. R. 2. lk>^4idl'6, tliu parties theniselvea with few exceptions are made aduiissible 
 witnesses: lb, s. 4. 
 
 («) Tiie persona deposing as to the abscondinic^ of a debtor should state tho 
 IITouuils of tlieir belief where tliey live at n cousiderublo distance from the debtor's 
 late ri'sidence : Tht Bank of Upper Canada v. Spafford, 2 O.S. 873. Where tho 
 ilibtor resided at lirockville, and the persor.s nialiing the affidavit in the town of 
 York (nnw Toronto;, an attachment was refused, the grounds of belief not having 
 been slated : lb. 
 
 (t) For sufficiency of statement by two credible witnesses under the old law : see 
 Toutn V. Fletcher, T. T. 2 4 3 Vic. MS. R. A II. Dig. " Absconding Debtor," 20. 
 
 (u) Under tho act of 2 Wm. IV. cap. 5, it was held (Macaulny, J. dimentiente) 
 timt a writ of attachment could be regularly issued against an absconding debtor, 
 tlioii;;li lie had been previously held to bad for tlio haiiio cause of action and the 
 bail discharged by a reference to arbitration: Motier v. JJeCan, S O.S. 77. 
 
 (r) The same words as used in s. 4.1, of C. 1,. P. Act, allowing service of 
 procesi on defendants without the jurisdiction of tho courts. The writ should, 
 like all other original writs, be issued by tho clerk of process: Wakefield tl al v. 
 Bniee, n IVac. U. 77. 
 
 (i) Mucli resembles repealed Stat. U. C. 2 Wm. IV. cap. 6, s. 1. 
 
 ('') t. e. In all personal actions where the debt or damages claimed do not 
 exceed |200, and in all causes and suits relating to debt, covenant and contraot 
 
 
 

 
 
 I 1 » 
 1^* 
 
 480 
 
 ABSCONDINO DEBTORS. 
 
 [8.5. 
 
 Judgnx to acting Judge thereof, (</) may in like manner by rule or order 
 t'oVisue. direct a Writ of Attachment to issue from such Court, and 
 the proceedings thereon shall be the same as in this Act pio- 
 vidcd. (c) 19 Vic. c. 43, s. 44; 19 Vic. c. 90, s. 2. 
 
 Cjntenta of. 
 
 Fnrm of 
 Writ and 
 Summuiis. 
 
 WKIT OP ATTACHMENT AND SUMMONS. 
 
 S, (/) The Writ of Attachment shall also coDtain a 
 Summons to the Absconding Debtor, (g) and shall be in tho 
 form following : (/i) 19 Vic. o. 43, s. 43. 
 
 Upper Canada, ) Victoria, &o. 
 County of ) To the Sheriff of, &c. 
 
 (Seal ) 
 
 We coniniund you, that you attach, seize and safely keep 
 all tho real and personal property, credits and effects, toj;other 
 v/ith all evidences of title or debts, books of account, vouchers 
 and papers belonging thereto, of C. D., to secure and sali'fj 
 A. B., a certain debt (or demand) of $ (or £ ) (the $urn 
 Bicorii (6) with bis costs of suit, and to satisfy the debt and 
 demand of such other creditors of the said C D., as shall 
 duly place their Writs of Attachment in your hands or other- 
 wise lawfully notify you of their claim, and duly prosecute 
 tho same. And wo also command the said C. D., that vithlD 
 
 
 
 kfi 
 
 
 to ^400, where the amonnt is liquitlnted or nscertnined by the act of tlie jiartici 
 or by the signature of the defendant: Con. 8tot. U. C. c. 15, s. 17; sub-ss. 1, '.', 
 To any amount on bail bonds given to tho sheriff in any case in a county court, 
 wiiatever may be the penalty : lb- sub-s. 3. On recognizances of bail tnkpn in a 
 county court, whatever may be the amount recovered or for which the bail tliercin 
 may be liable: lb. sub-s. 4. 
 
 ((f) Relative powers : see note w to section 48 C. L. P. Act. 
 
 (e) See sections 1 , 2, of this act. 
 
 (/) Resembles wliat was required in the form of the worrant of attaclinuiit 
 under the repealed Stat. U. C. ^ Wm. lY. cap. 6, a. 1. 
 
 (g) The attachment under the old law did not contain any form of summons 
 to the absconding debtor: see form in Meiifhan et at v. I'inJer, 2 O-S. 292. It 
 merely directed the sheriff to " seize and safely keep " all defendant's " eftnte, 
 as well real as personal." It was a proceeding incidental to the suit, ami did nut 
 interfere with the summons or other ordinary steps in the cause. The form pvQn 
 to this section requires the absconding debtor to put in special bail, and iiifurma 
 him of the seizure of his property. Tho writ of attachment is now the com- 
 menoemeat of the action. Consult the form in schedule as to the iodoracmeDti 
 necessary. 
 
 (A) Not " or to the like effect." 
 
 KM 
 
of nttnclimciit 
 
 g,G.] I>^XB OF WHITS. 481 
 
 (the time named in the Judge's order or rule of 
 Court,) days after the service of this Writ on him, inclusive 
 of the day of such service, he do cause special bail to be 
 entered for him in our Court (or County Court) of , in 
 
 sD action to recover $ {or £ ) (tlie $um aworn to) at the 
 gait of tho Eaid A. B.; And we require the said C. D. to take 
 notice, that his real and personal property, credits and effects 
 in Upper Canada have been attached at the suit of the said 
 A, B., and that in default of his putting in special bail as 
 aforesaid, the said A. B. may, by leave of the Court or a 
 Judge, proceed therein to judgment and execution, and may 
 sell the property so attached ; And we command you, the 
 said Sheriff, that as soon as you have executed this Writ, you 
 return the same with the inventory and appraisement of what 
 jou have attached thereunder. 
 Witness, (Sec. 
 
 In the margin. 
 
 Issued from the Office of tho Clerk (or Deputy Clerk) of 
 the Crown and Pleas (or of the Clerk of the County Court) 
 in the County of 
 
 (Signed) 
 
 J. H., Clerk, or Deputy Clerk, or 
 Clerk of the County Court. 
 
 Memorandum to he subscribed on the Writ. 
 
 N. B. — ^This Writ is to be sexyed within six months from 
 the date thereof, or if renewed, then from the date of such 
 renewal, including the a^j of such date, and not afterwards. 
 
 Indorsement to be made on the Writ he/ore service thereof. 
 
 This Writ may be served out of Upper Canada, and was 
 issued by E. F., of , Attorney, &o., (as on a Writ 
 
 of Summons, under the Common Law Procedure Aci.) 
 
 6. Every such Writ shall be dated on the day on Toi>naut«d 
 which it is issued, (J) and shall be in force for six months iMue'uua to 
 
 (;') t. e. In conformity with the practice enacted as to writs of summons and 
 
 capias: see C.L. P. Act, B. 24. 
 31 
 
 
S' I 
 
 ! .11 
 
 482 
 
 1)'' in fcirc'o 
 
 six IllUlltll!). 
 
 AUSCONDINO DEBTOftS. 
 
 [88. 7, 8. 
 
 Writ of At- 
 t.ii'liriiciit 
 
 t'l i!*MIII' ill 
 
 (iuj'lu'atc. 
 
 Further 
 jir.HOKJings 
 al'lt-r scr- 
 vici.', iSif.. 
 
 from its date, {k) and may be renewed for the purpose of 
 effecting service on the Defendant, in like manner as a Writ 
 of Summons may be renewed under the Common Law Pro- 
 cedure Act. (0 19 Vic. c. 43, s. 43. 
 
 7. (m) Every Writ of Attachment shall issue in dupli. 
 cate, and ^shall be so marked by the officer issuing the same 
 (the costs of suing out the same being allowed only as if a 
 single Writ issued,) and one Writ shall be delivered to the 
 Kshcriff to whom the same is directed, and the other shall be 
 used for the purpose of effecting service on the Dcfcudunt {»; 
 lU Vic. c. 43, 8. 44. 
 
 PnOCEDURK. 
 
 8. (o) In case it be shown by affidavit (p) to the Court 
 or a Judge having jurisdiction in the case, (<;) that a copy of 
 the Writ was personally served on the Defendant, (r) or that 
 reasonable effurts were made to effect such service, and that 
 such Writ came to his knowledge, («) or that the Defendant 
 hath absconded in such a manner that after diligent inquiry 
 no information can be obtained as to the place he hath ficd 
 to, (0 such Court or Judge, if the Defendant has not put in 
 
 (k) Also ia coaformity with writs of BUtnmonB: boo C. L. P Act, Scliedult 
 A, No. 1. 
 
 (I) I. e. Under C. L. P. Act, section 21, which sec, together with notes thereto. 
 
 (m) Taken from tiie latter pnrt of C. L. P. Act 1850, b. 44. 
 
 (n) This intends a personal servico on defendant, if the same cnn be elTccted. 
 It 'lA ft jirovision which was bj' the C. L. P. Act, ISriG, enacted for the tirst time. 
 Under the old law the attachment was issneil for the guidance of the siu'riff only. 
 Process wos served " by leaving a copy thereof at the Inst place of abode of sudi 
 person within this Province," ^c. : 2 Wni. IV. cap. 1. s. 6. 
 
 (o) Taken from C. L. P. Act, 1856, section 45, which was a new provision \u 
 thai act. 
 
 (p) The affidavit may be sworn before commissioners appointed under 2f> Yic 
 caj). 41. 
 
 (q) Court or judge. Relative powers : see note w to section 48 C. L. P. Act. 
 
 (r) As to what constitutes "personal service:" see note v to section 1m C. L 
 P. Act. 
 
 («) As to "reasonnVlo efforts " and "writ coming to defendant's knowledge' 
 Bee note z to soclion 10 C. L. P. Act. 
 
 (0 To make application under this section to the court or a jud({0, it must h 
 shown on affidavit, either (1) that the writ was personally served on dtfendaot, 
 - (2) that reasonable ciTorts were made to effect the same, and that tku wri( 
 
 
 u 
 
'•] 
 
 PROCEGDINQS AFTER SERVICE. 
 
 483 
 
 ant'fl knowledge:' 
 
 Special Bail may, either require some further attempt to effect 
 Krvice or may appoiut some act to be done which shall be 
 (leemid pood service, (m) and thereupon, (or on the first 
 ippiicatiun, if the Court or a Jud^ thinks fit) such Court 
 or Juci<!e may authorize the Plaintiff to proceed in the aotioD 
 in euch manner and subject to such conditions as the Court 
 or Judge uiiiy direct or impose. (t<) 19 Vic. c. 43, s. 45. 
 
 ctme to defendant'! knowledj^e ; or {Z) that defendant absconded in such a man- 
 :,r timt after diligent inquiry no information can be obtained as to tlie place tu 
 «hioli he fled ; ana ( ) tliat no special bail baa been put in for him : see Clark v. 
 Mclntoih,'i U. C, L. J. 231. 
 
 (ti) "Or to appoint tome act to be done which shall be deemed good lerviee." 
 Words of similor import were used in Stat. U. C. 3 Wm. IV. c. 7, which is the old 
 lawrt'tjnlatinij the service of proi-t-sn on corporations. In a cu!;o under that act 
 i^:.mt a corporation resident in Lower Cann<ln, application was made " that scr- 
 \M liy alfixiiig a copy of jiroccns in tiio crown otticu should bo deemed good ser- 
 v'n (111 lU-fendaiit.s. As to directing: timt tin; copy of process put up in the crown 
 ottiee f\wM l>c deemed a valid service, 1 think no such order can be made in 
 iiiis ciiH' inure than in any otiicr case. When a party has been duly served with 
 tliftir<t |iri)i'i'ss issued in a suit, and upon which he is broiij»ht into court, it is 
 r'iiii})titeiit under particular circumstances to direct that puttint; up copies of sub- 
 fM]U(iil iifoceediiigs in the crown office shall be deemed good service but, os I 
 ipiTiliciid, in no other instance." Shi-nvcxl et <il v. Tfie Hoard of Work*, 1 U. 
 (. ij. b .'ilT, }ier llagermun, J. Where before (hi* ict came iiito force a writ of 
 atiacliini'iit had been sued out and executed, and notice of the attachment inserted 
 ill till' il<izeilf according to the (dd practice, and upon application by plaintiff, 
 iftir iliisact came ifi force, to be allowed to proceeil with the service of his decla- 
 ration uniliT tiie old practice, the following order was made: "That the plaintiff 
 I'liiliiwiil to proceed in this action by fiiing the declaration and notice to plead 
 ii) till' iiHite ot the deputy clerk of the crow n at II. and that KUch filing shall be 
 Jiiiifd ;;cii)i| service;" also "that filing notice of assessmetit to the defendant 
 sliiill U' i;ii()d service according to the practice in force before the Common Law 
 I'rondiiiu Act, IS.')!', :" lie Kikeudall et al v. McKrimmon, 2 \]. C. L. J. 18-1; see 
 si- ) AV)T (t (il v. WiUfiii tt al, ;j U. C. L. J. 13. Service on the wife allowed at 
 '.'Oil Hrvice: MfDoui/nll \. Gilchri.it, lb. 28. Service on nearest friends and 
 liaiiii:,' up coiiy in crown office: JJaxter et Hi v. Dennie, lb. CU. So service of the 
 writ on sonic relative at his last place of abode: Roti et al v. Cook, lb. 48; 
 lluchiiiunt v. Ftrre*, lb. 48; Kvrr el al v. Smith ct al. Ih. lOS. Service by mail 
 iii;Molii,i address: Lyman et al v. Smiih, lb. 107. Advertising for in Choncery: 
 L-nSiimsnn v. Slimton, 6 Grant, 379; Gilmour v. Slall/invs, 4 Grant, 37t). 
 
 Allidiivits for leave to proceed under this section should show — 
 
 I. \Vli('i'r> the defendant resided and what was his business or occupation when 
 in thi' Trovince; 
 
 '2. Wliiit property he has (if any), and ii whose hands it is; 
 
 «. ^Viictlici' he has any (and if any, w) at) friends or relations residing in this 
 I'rovince or elsewhere; 
 
 i. Tliiit ilei'endant has not put in special bail to the action ; 
 
 i. Wliiit specific efforts have been made to effect |iersonaI service on the 
 di'li'iulant and tu discover his whereabouts: Stephen el al t. Dennie, 3 U. C. 
 L. J. (t'j. 
 
 (f ) The old enactment 2 Wm. IV. cap. 6, 8. 6, made it necessary for plaintiff to 
 
 m 
 
484 
 
 ABSCONDINfl DKBTORS. 
 
 [8.9. 
 
 f-'f 
 
 M" 
 
 W 
 
 'i 
 
 puintiff *• ^") Before the Plaintiff obtains Judgment he shall 
 
 "'"'Vim** P'°^° ^^° amount of the debt or dauiagca claimed by him in 
 tte. such action either before a Jury on an assesament. or bj 
 
 reference as provided in thn Common Law Procedure Act. 
 •oeording to the nature of the cnae, (A) and no exccation 
 •hall issue until the Plaintiff, his Attorney or Anient, hu 
 made and filed an ofRdavit of the sum justly due to the Plain- 
 tiff by the abHoondin<; Debtor, after giving him credit for all 
 payments and claims which mi^ht be set off or lawfully 
 claimed by the Debtor at the time of making such Inst men- 
 tioned afllidavit, (n) and the execution shall be indorsed to 
 levy the sum so sworn to with the taxed costs of suit, or the 
 amount of the Jud.::ment including the costs, whichever ig 
 the smaller sum of the two. ((/) 10 Vic. c. 43, s. 45. 
 
 wiiit three months aflor notice of tli« nttaohinont publmhed in the 0<i2tUi befurt 
 taking furtlior procifcilinns. TJu' odvi'rtisenu'nt in tlic Gazette m no Idiigtr 
 required; nor is it rcqnisite that pinintitf stinnld nwait the exnirntion of xhm 
 jnunllis before |irocceding witli liiii suit. I'rutreedings by attaciitiicut arc mmh 
 assimilntcd to itruceedings uguinst dufendauU " reaideut abroad :" C, L. 1*. Act, 
 88. 43, 44, 46. 
 
 (a) Taken from C. L. P. Act, 185C, section 45, which was a new provieion in 
 tbqt act. 
 
 (6) The Stot. 2 Wm. IV. cap. 5, s. T, made it iucuinbent on plaintiff " to prove 
 his eaute of action in the same manner as if the general issue had been picadiil. ' 
 Ac. Under this act it would seem that when the defendant does not appear, the 
 cause of action, whether sounding in debt or damages, is taken pro eonjim 
 against him, rcnderitig it only necessary to prove the amount of such debt or 
 damages: see Robertson v. Hoii, 2 U. C. 0. 1'. 193. The court under the old 
 practice felt themselves bound, in an action against an absconding debtor, to see 
 that sufficient was stated and proved to warrant a recovery against hioi ; Sijion 
 V. Anderton tt al, 5 U. C. Q. IJ. 305. And since C. L. P. Act, 1866, it wus held 
 that a judge at nisi prius had the power of allowing '"ounsel for another creditor 
 to cross-examine plaintiff's witnesses and to address tlie jury against plaintilf's 
 case: Lavis v. Baker, 13 U. C. C P. 606. Ho in same case the court, iiotwith 
 standing a verdict for plaintiff on aftidavits showing fraud and collusion, (granted 
 A new trial on payuteut of costs: lb. But tiio creditor having refused the rule 
 on these terms, the court afterwards held they had no power to make him [wv 
 costs: 8. c. 14 U. C. C. P. 330. Where the chiim is substantial!}' a matter of caltu- 
 lation, there may be a rcfercnco to the master under C. L. P. Act, sectioo 16i: 
 Chapman v. DeLorme, 6 U. C. L.J. 138. 
 
 (e) Substantially the same as repealed Stat. 6 Wm. lY. cap. 5, s. 7. 
 
 (d) Plaintiff is not called upon to swear now as formerly " that the sum nlloweJ 
 to him by the jury is justly and truly due to him by the defendant." He >» to | 
 msk« oath of the sum justly due to iiiui by the defendant, irrespective uf anv 
 verdict, and after having allowed to defendant all necessary and legal credits. If 
 the snm so sworn to, with costs of suit, be less than the verdict rendered by the 
 jury, tugetlier with costs, or vice vena, thea the execution must be indorsed fur | 
 the lesser of these two sums. 
 
 P'.v 
 
[8.9. 
 
 lent he Rhall 
 cd by him in 
 iHinent. or by 
 rocedure Act. 
 
 DO execution 
 n A(!ent, hu 
 e to the Fliin- 
 1 credit for all 
 >ff or lawfully 
 such Inst mcD- 
 be indoreed to 
 
 of suit, or the 
 9, whichever is 
 13, 8. 45. 
 
 ,lio Oiittttt befort 
 ttle is 110 lnii).'er 
 tpirntion of thrtt 
 Blimcut arc miuh 
 hd ;" C. L. r. Act, 
 
 new provision in 
 
 •laintiff " to prote 
 ad been jilcaJiil," 
 ■8 not ajipear. the 
 akcn pro tonftm 
 t of Bucli debt or 
 irt under the oW 
 ling debtor, to 8M 
 ■nlnst hitn: Sijiw 
 
 18B6, it was heU 
 »r another crwlitor 
 
 against plaintiff's 
 lie court, notwitli 
 
 collnslon, pranteJ 
 g refused tlie rule 
 
 to make liim i>»y 
 
 a matter of eoKu. 
 Act, section li'il 
 
 B, B. 7. 
 
 at the BUin nllowoJ 
 jndant." He is" 
 rrespectivc of any 
 d legal treilits. 11 
 ct rendered by tk 
 Bt be indorsed fut 
 
 M.10,11.] 
 
 SPBCIAL BAIL. 
 
 485 
 
 10. (c) The Plaintiff may at any time within mx months I'Uiniiir 
 
 iiiiiy iilitain 
 ('•■ncnrrelit 
 WritN tu 
 
 dtlicr 
 Slu'riflB. 
 
 from the date of the origiDal Writ of Attachment, (/) with* 
 out further order from the Court or a Judge, issue from the 
 office whence the original Writ issued, one or more Concur- 
 rent Writ or Writu of Attachment, to boar testo on the some 
 dir 38 the original Writ, (ff) and to be marked by the Officer 
 lams, tiic same with the word " Concurrent " in the mar* 
 gin, (/') which Concurrent Writ or Writs of Attachment may 
 be directed to any Sheiiff other than the Sheriff to whom the 
 orij;iiiul Writ was issued, (i) onJ need not be sued out in 
 duplicate or be served on the Defendant, (J) but shall F<>r attach- 
 operate merely for the attachment of his real or personal pro- J>" n}\'' 
 perty, credits and effects in aid of the original Writ. (A-) 
 19 Vic. c. 43, 8. 46. 
 
 II, (0 The Court or a Judge (m) at any time before or court nmy 
 after final Judgment, (n) but before execution executed, (o) rcll!ui!u,> 
 
 {() Tnken from C. L. V. Act. lf<.')rt, section 4rt, which in that act was a new 
 provision prepared in conformity with section 20 of 0. L. F. Act. 
 
 (/) As tu computation of time, &c. : sue section 342 C. L. P. Act, and notes 
 
 tlijreto. 
 
 i'j) The concurrent writs may issue at any time within six months from the 
 dtte (if tlie original, but muat be tested on the same day iis that writ. 
 
 {h) A further memorandum as to the />/af< e/ iitue, required by section 6 C. L. 
 r. Act, has been expressly made necessary in the case of concurrent writs of sum- 
 mons ii^sui d under section 20 C. L. P. Act. No sucli express declaration is hero 
 made us regards concurrent writs of attachment. It will be prudent, though not 
 ei|ir('>sly required by tiiis section, for the clerk issuing a concurrent writ of 
 titacliiiieiit to mark this memorandum in the margin, more especially as the section 
 under voii'iideration enacts that euuh writ shall " issue from the office whence the 
 original writ issued." 
 
 |i) The object of tliis provision is to enable plaintiff to attach property of the 
 deiiU)r discovered to be in a county other than that to which the first writ of 
 tttacbiiieiit was sent. 
 
 ij) Uoth of which requirements are made necessary with respect to the original 
 writ issuable imder section 8 of this act. 
 
 Il() And will, it is presumed, be in force only for the period during which the 
 nri|;inal writ shall bo iu force, viz. six mouths from the <late thereof: §cc section 
 !'"'. 1.. 1'. Act. A« the concurrent writ must bear teste on the same day as the 
 urisriiial writ, it must, if this a.ssumption be correct, expire at the same time as 
 the original. 
 
 (0 111 principle a ro-enactmeut of Stat. 2 Wm. IV. cap. 6, a. 14. 
 (m) Court or a judge, relative powers; see note w to section 48 C. L. P. Act. 
 (h) Old practice, " at any time witliin one year after the rendering of judgmcnt.'> 
 («) Qh. When shall execution be said to be " executed ?' Probably after but 
 
 m 
 
 'i 
 
 •■ifi 
 
 IV, 
 
 ' 
 
 
 'I'i 
 
 iyii. 
 
Ri 
 
 n. 
 
 -{8G 
 
 put In iipn- 
 vM Ull. 
 
 AnsCUNniNQ DEBTORS. 
 
 [«.s, I -J, ]:i. 
 
 Dcfi'iidant's 
 
 Iirii|H'ity til 
 
 Im! ri'MtuI'l'll 
 
 on liiK piit- 
 
 tillg ill M|IU- 
 
 clitl bail. 
 
 Or prncccdi 
 if tuia. 
 
 upin tin nppliuation supportcrl by mttHfuolory afTiil'uiti, f », 
 accountin;; Tor tho defendant's delay and defuult nml d'lmlm. 
 in^ a f;ood dcfonoo on the merita, (q) may, (r) havint; rciiard 
 to the time of the application and other circunistancen, let in 
 tho Defendant to put in Special Bail and to defend the 
 action, (o) or may reject the application. 10 Vic. o. 4o, b.47, 
 
 DAir. 
 
 13. (a) The special Bail (whether put in within the time ' 
 limited by the Writ (b) or within such tiiuc as tho Court or 
 a Judge directs,) (c) shall be put in and perfected in like 
 manner as if the Defendant had been arrested on u Writ uf 
 Capias for tho amount sworn to on obtaining thcattiichment; 
 and after being so put in and perfected the Dcfcndunt Hliall 
 bo let in to plead, and the action shall proceed as in nrrlinarj 
 cases begun by Writ of Cupias. (d) 19 Vic. c. 45}, s. 48. 
 
 13. (c) Upon the Defendant so putting in and perfecting 
 Special Bail, all his property, credits and effects attuclicd in 
 that suit, (except any which may have been disponed uf a 
 perishable, and then the net proceeds of tiie goods so difipised 
 of.) shall be restored and paid to him unless there he Bome 
 
 
 m 
 
 not before the snlo of defemlant's effects: see C. L. P. Act, ha. 270, 271, ami milos 
 thereto. As to inception of execution : sec C. L. V. Act, 8. 288, uotea t niid r. 
 
 (/)) I>cfendnut formerly was bound to apply" within ono year after the rciidcr 
 ing of judgment: Stat. 2 \Vm. IV. cap. 5, s. 14. 
 
 ((/) Disclosing a good defence, <L'C. : see note t to section 55 C. L. P. Act. 
 
 (r) Defendant formerly was allowed a rc-hearln;; as a matter of right : A'odfri- 
 ton et al v. Jlurk; 5 O. S. 75. 
 
 («) Before he was allowed this privilege under tho old practice he was rtquiriJ 
 to give security for costs. 
 
 (d) Taken front C. L. P. Act 1856, s. 48, which in tiiat act was au ori^'innl 
 provision. 
 
 (ft) See section 8. 
 
 (f) Court or judge, relative powers: see note w to section 48 C. L. P. Act. 
 
 (rf) See section 82 et teq. C. L. P. Act. 
 
 (e) Taken from C. L. P. Act 1856, s. 48, which in that act was on originnl pro- 
 vision, but suUstantially a re-enactment of 2 Wm. IV. cap. 5, s. 4, in so far m 
 concerns the restoration of defendant's property. Tliat section, taken in cDiinic- 
 tion with section 3 of 6 Wm. IV. cop. 6, made it necessary for defendant to inter 
 into certain bonds, upon the deliver}' of which it was enacted " that all and singu- 
 lar the property which may have been attached shall be restored." 
 
H] 
 
 PROPERTY LIABLE TO BE ATTACH En. 
 
 487 
 
 after the render 
 
 aW.'K li iill 
 till- iii'i|.(.rty 
 aij'l 1 1< clitu 
 ■ ■I ilifiii- 
 claiit. 
 
 til lir made. 
 
 Mhcr lawful ground* fur the Sheriff to withhold or detain the 
 Muie. (/) 10 Vic. 0. 43, s. 48. 
 
 WHAT PHOPEUTY MAY UK ATTACUKD. 
 
 M. (j) AH the property, credits and cflFects, including sh.rifrto 
 ill ri^'lits and shares in any Association or Corporation, of an 
 ibwndiiijr Debtor, (ffg) may be attached in the same manner 
 3s they might be seized in execution ; (/i) and the Sheriff to 
 vhoiii any Writ of Attachment is directed shall forthwith 
 take into bis charge or keeping all such property and effects 
 Kcordin}! to the exigency of the Writ, and shall bo allowed 
 ill necessary disbursements for kcepitig the same, and ho 
 (hall immediately call to his assistance two substantial free- 
 yjcrs of his County, and with their aid he shall make a just inv.tito 
 and true inventory of all the personal property, credits and 
 eifoets, evidence of title or debt, books of account, vouchers 
 and papers that he has attached, (t) and shall return such 
 inventory signed by himself and the said freeholders, together 
 irith the Writ of Attachment. 19 Vic. c. 43, s. 40. 
 
 (f) Tho duty of the sheriflT unilor this section is iniperativp, nnil in the event 
 of nun-performance, it is nppruhendod un applieatiun iui;|lkt bu niudo by tlie 
 iii.'i.'ri(!Vt-d party to tlic court or a judge for summary reliuf. 
 
 {'/) Talvcn from C. L. P. Act, 1850, section 49. Substantially a re-crmctmeiit 
 of the old law. 
 
 (<;;) Tiic words of the statute require that the proncrty attacliKl slumld bclonsj 
 to till- fthscondiiisj debtor, and imply an actual and not moroly a constructive 
 owniTsliip in him; see Wilton, et at v. Traill, 21 L. T. N.S. 610. 
 
 [h] A rccnactment of Stat. U.C. 2 AVm. IV. cap. 5. s. 3. It was hold undnr that 
 act thnt where real estate was attached, tho sheritT must enter and keep po.ssession 
 t"L'ive opt-ration to the attachment as a<;ainst strangers: JJor d Crcic v. Clarke, 
 M T. 4 Vic. .MS K. & H. Dity. " Absconding Debtor," 21. As to wliiif property. 
 (Tiilits and elfocts are subject to execution : sec C. L. P. Act, ss. 252, 2.')r), 267, 
 20' '.and '261. 
 
 fi) \t\ inventory was not expressly declared to be necessary under tho fonner 
 Aljicnnilitig Debtors Acts, though 8ub8e(piently made necessary in \\m ei>se of 
 attachments issued from division courts: 13 «fe 14 Vic. cap. y,i, s. «)4. To tho 
 'onl "inventory" the idea of an ajipraisenicnt does not ne(;essnrily iitlaeli; but 
 in iiivi'titory. especially of perishable goods, would seem to bo incomplete with- 
 Mt .ippraiseinent. Tho inventory when made is to be returned by tlic feheritf, 
 t'lrcthiT with the writ of attachment. 8uch a return will be useful infnrniation, 
 mtonly for ail creditors of the absconding debtor desirous of proseeutin;; their 
 claiuH, but even for tho absconding debtor himself. Should ho apply for a 
 rostnrntidn of his property and effects, ho will be the better able to ascertain 
 *ifli certainty what has in fact been attached and seized. The practice is, in one 
 rc'pcct nt least, much like that of a distress for rent. An inventory in the case 
 of a distress is necessary, because " it is proper that the tenant should know what 
 
 
 m 
 
 i ■'■■'.<,|j 
 
 I .!.:i'»i^ 
 
 ■ ■ *ii 
 
 iS'iJi 
 
 tr^ 
 
 I,:, I 
 
488 
 
 ABSCONDING DEBTOns. 
 
 [8. 15 
 
 
 
 PKRIBUADLK PROPERTY. 
 
 iTowrrrUh- Iff. (Je) In case any hones, oattlo, sbeep, pigs or anv 
 Hiia'ii w perishable goods or chattels, or such as from 'hoir nature (a^ 
 timber or staves) cannot be safolj kept or conveniently taken 
 care of, be taken under any Writ of Attachment, (/) the 
 Sheriff who attached the same shall have them appraised aoj 
 valued, on oath, by two competent persons ; (m) and in case 
 the Plaintiff desires it and deposits with the Sheriff a Bond 
 to the Defendant executed by two freeholders (whoso r,uffi- 
 oieooy shall be approved of by the Sheriff,) (n) in double the 
 
 gnocln thf! lnD«llor(1 ininnds to comprise within tlio diHtrpsB, and that he may Jtrnoir 
 what he will b$ obliged to replevy :'' Urtulby on DiBtresa, 2 ed. 161. 
 
 (A) Token from C. L. P. Act 1860, s. 60, substantinlly a rc-cnactmcnt oi' 2 Wm. 
 IV. cap. 6, 8. 8. 
 
 {I) Tho old enactment was to the efTect that whon the sherilT shonid seize ami 
 tnku any puriHhable goods or chuttel^. die, it should bo lawful for him, &c. No 
 attempt was made to define the goods. Tlio express Inngnagc hero used will be a 
 great rel'ef to the nheriif in the discharge of his duties under this section; still 
 tlicru is a wide discretion vested in that officer. It is for him to decide what Are 
 " perishable goods or chattels," or what from their nature (us timber or ntuvcs) 
 cannot be conveniently kept. 
 
 When framing this section, it would appear that the legislature Imd io vlen- 
 three kinds of property : 
 
 I'lnt — Live chattels, sucli as horses, &.C., that might in a||short time "cat iip 
 themselves." 
 
 Second — Ooods properly called perishable, such as butler, pork, Ac. 
 
 Tliml — Property that could not bo safely kept or conveniently taken care of, 
 such as timber, staves, cordwood and the like, perhaps also growing cro]i!<. 
 
 Tlie plain object of the legislature is to convert into money all property liable 
 to bo deteriorated in value by being kept, or of whicli the keep and cure woiilii 
 cause considerable expense. Tho sheriff should therefore in every case considir 
 whether it would be more to the advantnge of the creditors as well as tlic dibtcr 
 to sell " forthwith" or to wnit for the execution, and act so as to make tlic luoit 
 of tho property in his hands. 
 
 Formerly it was not - /mpulsory upon sheriffs either to " »ehe o, sell" pcri-li 
 able goods until the giving of a certain bond : 2 \Vm. IV. c. 5, s. 8. TImt enact 
 ment having been repealed, and no corresponding provision having been siibmi 
 tuted, it is open to inference that the sheriff must now seize perishable in tiic 
 same manner as any other goods belonging to the debtor. 
 
 (m) Tho vnluatioji "upon oath" is a^feature intr^ductd into thcC.L. P. Act 18JC 
 for the first time. 
 
 (n) The approval of sureties by the sheriff waa niso a new feature of the C. L. 
 P. Act 1856. In a case under the old law, where the sufficiency of suretii'S was* 
 question for the court, it was held that sureties resident in Lower Canada were 
 not "sufficient sureties:" Bradbury v. Lowry, H O. S. 439. In order to form an 
 opinion as to the sufficiency of the sureties, the sheriff might reasonably require 
 that they should justify by affidavit whenever ho himself is not personolly cogni- 
 zant of their ability. 
 
16] 
 
 peribhadm: qoods. 
 
 480 
 
 ictmcnt ol' 2 Wm. 
 
 amount of the npprnised value of such nrllcles, (n) conditioned 
 f)r tlio pnynoont of sach appraised valuo to thoDcfotiJnnt, 
 his executors or adniiniHtraturs, together nvith all costs and 
 (J3mn<;cf) incurred by tlio seizure and sale thereof, in cnso 
 JiiJ;j;iiicnt bo not obtained by the Plaintiff against the Defen- 
 dant, (p) then the Sheriff shall proceed to sell all or any of 
 such eiiuinemtcd articles at public auction, to the highest 
 bidder, giving not less than six days* notice of such sale, (pp) 
 nnloss any of the articles are of hucIi a nature as not to allow 
 of thnt delay, in which case the Sheriff may sell such articles 
 last mentioned forthwith ; and the Sheriff shall hold the [||;;;['[yr,'." 
 prooceds of euch sale for the same purposes as ho would "^**''''- 
 hold any property seized under the attachment. («/) 19 Vic. 
 
 C. 4.1, 8. 
 
 50. 
 
 10. (r) If the Plaiatiff, after notice to himself or his Huih ftuixU 
 Attorney of the seizure of any ftrtiolcs enumerated in the last n'stnini if 
 preceding section, (s) neglects or refuses to deposit such a u! KWe"^ ''" 
 
 ',h' " M •> 
 
 iture Imd io view 
 
 lopt time " ent up 
 
 »cC.L.r. Act 1856 
 
 (») Tlie very words of Stnt. U. C. 2 Wm. IV. cnp. 5, 8. 8. Under section 4 of 
 the sniiu* net, wliere tho wunla used were thnt a bond should ha given " in double 
 till' niutititit claimed," a dif^ieuHy arose upon tiiu construction of these words, 
 wlicri' tliure were several ciniinants: Heather el al v. Wallace, 4 O. S. 1^1. This 
 niipliiil to » bond to l)e given by di'fi-ndant. No sucli dirticidty enn arise under 
 tliis .section, for tlio bond here mentioned is to be givun by ])luiutitr. The punul 
 turn imut bo " double thu amount of tho aypruked value of sucli urtiules." 
 
 (;>) This is a condition similar to that formerly required : 2 Wm. IV. c. 6, b. 8. 
 
 (/I/)) Not iesH than »ix dny»' notice of such sale, «tp., i. e. six clear day.; nt loa!»t. 
 Till' fir?t nnd Inst days apparently excluded : see lieyina v. The Justices of Shrop- 
 »hin. H A. »t K. 173 ; Mitchell v. f^'osttr, 9 Dowl. P. (.\ 627 ; L<fflii v. lilcher, I i>owl. 
 N "< 707. The notice formerly was nt least " eight days' notice :" 2 Wm. IV. c. 0, 
 s. 8. See C. L. P. Act, s. 342, and notes thereto. 
 
 ('/) When formerly the articles wore not of such 'n nature 09 to adroit of nt 
 lia.>i i'i;;lit days' notice of sale, tho sheritf wna empowered to sell thu same " at 
 i-ucli lime ns in his discretion may seem meet." Now it is " forthwith." Ordinary 
 priKk'rico may suggest the propriety of tho sheriff in his discretion even undc-r 
 till' in'cscnt prnetico giving some notico of sale. If he cannot give six day.s' notice, 
 lie sliould give ns long a notice as the circumstances of the ca^a will admit. The 
 word "forthwith," as used in this statute, is not to receive a strict construction 
 like tlicword "immediately," so that whatever follows mmt be done imnu'diately 
 alter tliat wiiich has been done before: see L'lt/iaa v. The JukUccs tf W'vrccstei; 
 < I'owl. I'.C. 790, per Coleridge, J. As to tho word " immediately," see uoto 14 to 
 sediou ;i24 and note k to section 328 C. L. P. Act. 
 
 (>•) Taken from C. L. P. Act 1366, s. 61, and in that act was a new provision. 
 
 (») Tiie word " cnumei atcd" cannot be token literally. Tho design of tho en- 
 oc'tiiieiit is to embrace all things coming within the meaning of the previous 
 
 mlii 
 
 '*»; !i 
 
 U 
 
Ill 
 
 1' 
 
 
 
 U: ' 
 
 
 k; 
 
 
 
 
 490 
 
 sufn"i<'nt 
 si-furity. 
 
 ABSCONDINQ DEBTORS. 
 
 [8. IG. 
 
 Bond, or only oflers a Bond with sureties insufficient in the 
 judgment of the Sheriff, (<) then, after the hipse of four days 
 next after such notice, (u) the Sheriff shall be relieved from 
 
 *-5 ;! 
 
 
 liV' 
 
 in 
 
 
 4' 
 
 section as "periahnble property." SincQ the slieriff is now bomul to seize ]Krish- 
 nl)le in tiie siuiie mnniiCM- as nny otlicr {joods, lie oiiijlit iuinii'diatcly after tlie 
 seizure to notify tlie plaintiff or liis ftttorney of such seizure. lie will tlitu be la 
 a position to avail iiiniself of the provision in this section contained. 
 
 (t) Tlicre seems to be every reasonable latitude given to tlie sheriff, wlm, ia 
 tlio exercise of a sound discretion, ou^lit eitlior to take or refuse tlie bond offered. 
 The word " judirment," as here used, cannot menu that the sheriff may exercise 
 an arh'trarii judfjnient. Tlie word in itself implies a fair examination by tlio 
 
 cision thereon. The "jiul;'- 
 judgment. The sureties need uot 
 
 BherifFinto the facts laid before him, and a prupcr de 
 ment" meant must therefore be a reasonable lud^m 
 necessarily bo residents in hia county 
 
 (m) From this it would appear that the plaintiff or his attorney, when notified 
 by the sheritf, should witiiin four days tender to the sheriff the requisite bond. 
 If no bond bo deptisited with the sheriff within that time, or if the bond teiulerod 
 is in his judarment insuflieient, then "after th<; lopse of four days next tifkr .suc/i 
 notice" the sheriff shall be relieved, A'C. The chief pf)int for consideration is the 
 computation of time. It may be a question whetiier in computing the four dftvfl 
 the day on which the notice was given slioi'ld bo included or excluded. It is 
 apprehen<led that the latter would be tiie correct mode. The sheriff is to be 
 relieved after the lapse of four days next after the notice. The day of notice h 
 not to be included, because the courts, as a rule, never take the fraction of a uuy 
 into account witiiout a clear necessity for .so doing. The authorities are not l)v 
 any means consistent and until lately have been fluctuating. The old rule, nmv 
 exploded, was that when time was to bo reckoned from an act done and not fnim 
 the time tfureof, the day on which the act was done was taken to be inclu- 
 sive: Cnntle et'al v. liitrditt et al, .3 T. R. 623; /ion/Ion v. Rnltan, 2 (). S. ;U)1 
 If the time mentioned were one day after an act done, would it not be at>siirJ 
 to hold that such day expired during the evening of the very day on wiiioli 
 the act was done? Such a construction would be a contradiction in terms. When 
 the question was in this light put before the courts, they reversed the practice. 
 Castle et al v. liiirditt et al, 'A T. U. R'23, and other like cases, have been in conse- 
 quence deliberately overruled : Robin: jh v, Waddington, 13 (J. B. 75:',. The words 
 of the section under consideration resemble those of 2 VV. & M. stat. 1, cap. n.s. 2, 
 The latter enacts that where nny goods shall be distrained for rent, «tc., and tiie 
 tenant or owner of the goods so distrained, sholl not within "five days next after 
 such distress taken, Ac," replevy the same, the person distraining sliiill iiro- 
 ceed to appraise and sell such goods. Here the days arc to bo reckoned from an 
 act done, viz., "distress taken." Held that as the ruie now stands the days must 
 bo counted exclusively of the day of taking: Rohimon v. Wadditiglon, 13 Q. H. V^'i. 
 The practice since this case should be taken to be settled. The decision was 
 given after the hearing of elaborate arguments by counsel. Many cases pm iind 
 con werv cited and commented upon during the course of argument. The nufin)- 
 rities overruling Ca»tle et al v. liitrditt el al, 3T. II. 6'23, were ably pressed upon the 
 court, and Deninan, C. J., " Very reluctantly we arc obliged to yield to the Inter 
 authorities which have introduced a revolution in the law on this point." Patte- 
 8on, J., " It is unnecessary to ex[)rcss any opinion on the other points, for on tiio 
 last, the modern authorities seem uniform." Coleridge, J., and Erie, J., concurred; 
 Jb. 766. The true construction of section 51 therefore appears to bo to read it as 
 if expressed in the following words : " Tiien after the lapse of four days next 
 after [the day of] such notice." See further section 342 of C. L. P. Act, and notes 
 thereto. 
 
 
 mi 
 
17] 
 
 RIGHTS OF DIVISION COURT SUITORS. 
 
 491 
 
 all liability to such Pluintiff in respect to the articles so 
 seized, and the said Sheriff shall forthwith restore the same, 
 to the person from whose possession he took such articles, (v) 
 19 Vic c. 43, 8. 51. 
 
 WIIKN niVISIOX COURT ATTACHMKXT8 .SUPER,«EnKD. 
 
 17, (ft) If any Sheriff to whom a Writ of Attnchnient is Prmcf-iintt 
 delivered for execution, finds any property or effects, or the iiii.r[.n>- 
 prcceeils of any property or effects which have hecn sold as h''u„is'of a!" 
 perisliiible, belonging to the absconding Debtor named in ril.','l",lf'a 
 such Writ of Attachment, in the hands, or in the custody and cuurt."" 
 keepinj; of any Constable or of any Bailiff or Clerk of a Divi- 
 sion Court by virtue of any Warrant or Warrants of Attach- 
 ment issued under the Division Courts Act, such Sheriff shall 
 demand and take from such Constable, Bailiff or Clerk, all 
 gaeh property or effects, or the proceeds of any part thereof 
 as aforesiii'J, and such Constable, Bailiff or Clerk, on demand 
 by such Slicriff and notice of the Writ of Attachment, shall 
 fortliwilh deliver all such property, effects and proceeds as 
 afur(!said to the Sheriff, upon penalty of forfeiting double the 
 value of the amount thereof, to be recovered by such Sheriff, 
 
 (») Some goods described ns perislinble by this act, such an " horses, cattle, 
 flKeji. piiis," A'c. will require to be nt least fed while in the custody of the sheriff. 
 Wild is to )>oy the expense of feeding them? 'Ihe sheriff is bound under the 
 ottiicliiiu'iit to tnke into his «;hiir<jo or keepinfj nil the property of the absconding 
 (Iflitiir: section 14; and it is dechircd that " he shall be allowed all necessary dis- 
 Lurscmctits for keeping the saine:" lb. But who is to reimburse him or advance 
 to him tlu'se " necessary expenses," if the ))ro])erty bo restored to the person 
 fimn wlmsi' possession it was taken ? By section 18 it is enacted " that the costs 
 ot the siierifi' for seizing and taking charge of property," «te., shall be paid in the 
 first instance bj' the plaintiff in the writ of attachment. The expression "first 
 in«tiiiu'e" is used in contradistinction to the determination of the suit. It ia 
 fniliahle that the sheriff would be entitled to receive if not to demand from plain- 
 titf in advance the costs of keeping perishable property as well as any other seized. 
 If ]ihiintitr of his own wrong — that is, neglect or refusid to give tlio necessary 
 focmity— compel the sheriff to abandon the v>roperty seized, it may be pro[)er 
 that the loss of money expended upon it while in custody should fall upon him. 
 Ill any event, the sheriff as against him would have a good rigiit to retain tho 
 nKiney, il' advanced, and disbursed bona fide for t!ie keep of the i)roperty restored. 
 If tile siieritl, having a riglit to demand the costs fr(jm ])luintitf " in the first 
 instance," neglect to do so, he is, it seems, still entitled to have them taxed and 
 sue |ihiiiitilV for them in any court of this I'rovinco having jurisdiction for the 
 umount: section 18. 
 
 fa) Taken from C. L. V Act, ISSfi, section 5fi, which was in that net a new 
 pr(ivi«ioii, the object of which was to supply an omission in previously existing 
 laws; see Francis v. Drown el al, 11 U. C. li. B. 558. 
 
 
 n-- 
 
 
 n 
 
 HI 
 
 
 
&^l 
 
 «■ ' > 
 
 
 402 
 
 Croditor in 
 DiviHioii 
 Court may 
 
 JiriPi'wil to 
 uUgllR'llt. 
 
 ABSCONDING DEBTORS. 
 
 [8. 18. 
 
 with costs of suit, and to be by him accounted fur after 
 deducting his own costs, as part of the property and effects of 
 the absconding Debtor; (&) but the Creditor or Creditors 
 who have duly sued out such Warrant or Warrants of At- 
 tachment may proceed to Judgment against the abscondin" 
 Debtor in the Division Court, and, on obtaining Judgment. 
 and serving a memorandum of the amount thereof, and of the 
 costs to be certified under the hand of the Clerk of the Divi- 
 sion Court, every such Creditor shall be entitled to satisfac- 
 tion in like manner as, and in ratable proportion with, the 
 other Creditors of the absconding Debtor who obtain Judg- 
 ment as hereinafter mentioned, (c) 19 Vic. c 43, s. 'jO. 
 
 SHEHIFFS COSTS. 
 
 18. 00 The costs of the SheriflF for seizing and taking 
 
 f 
 
 1 4 
 
 'waSm 
 
 J 
 
 Hop 3 
 
 m- ^* 
 
 < 
 
 li 1 
 
 St 3 
 
 J 
 
 >i4 
 
 
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 W'tl 
 
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 RR V , 
 
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 $■ 
 
 I U. 
 
 turn, u> 
 
 fie 
 
 
 
 (b) This section so far is confirmatory of the law an laid down by all of tlie 
 judges of the Queen's IJench in Francity. Brown. 11 U. C. Q.H. 558. ()u. Can tlifl 
 sheriff step in and take projiorty under this act out of tiie custody of any constable, 
 bailitf or v;!erl\ of a division court, when tlio nttaciiing creditor in tlie divisinn 
 court has obtained jnd<5inont and issued execution ? It is enacted that wlien the 
 sheriff sliull liiid any i)roi»erty or the proceeds of any property or effects, wiiitli 
 have been sold as peris-hiible, in tlie hands of nn officer of the inferior court, ly 
 virtue of a icarrant of atiachment, &,c, Hut after judgment, and execution tiie 
 property and effects would be considered in the hands of th" othcer b}- virtiu' of 
 the warrant of execution. Clearly after tale under execution, the sheriff lias n) 
 right to demand the proceeds, though not paid over to the execution creditor. 
 lie is only entitled to tho proceeds of goods sold as perishable, which must be 
 taken to mean goods aold from necessity shortly after seizure under warrant of 
 attachment and bi;fore execution. Besides tho latter part of this section suuins to 
 contemplate a demand by tho sheriff before judgment, for it provides tiuit tho 
 caditor who has sued out such writ of attachment may, notwithstaiulin;; the 
 demand by the shcritf, proceed to judgment against tho absconding debtor, ikc. 
 The marked difference between proceedings against absconding debtors in a court 
 of record and in '. division court is, that in tiie former tlie property is atlaciieJ 
 with the primary object of compelling the debtor to submit his person to the 
 jurisdiction of the court. In the latter court the property is attached in order to 
 subject it to execution as fast as judgment can be obtained : Francis v. brawn 
 el al, 11 U. C. (J. 11. o6t5, per Draper, J. From these considerations it is con- 
 ceived that after judgment and execution in a division court at the suit of an 
 attaching creditor against an absconding debtor, the sheriff has no power to nialic 
 tho demand authori.sud by this section. 
 
 (c) Tills is both a just and a necessary provision. Tt places attaching creditors 
 in division courts upon an equal footing with the creditors in the superior court?, 
 provided the proceedings of both sets of creditors ore directed against the name 
 defendant. The sheriff is intended to bo the caretaker for the creditors of both 
 superior and inferior courts ; ond he is in duty bound to distribute the common 
 fund amongst all the creditors in ratable proportion to their respective claims: 
 section 2i>. 
 
 (rf) Taken from C, L. P. Act, 185«, section 64, whicli was substantially a 
 re-enactment ot Slat. U. C. 2 \Vm. IV. cap. 5, s. lu. 
 
19.] 
 
 APPRAI8EMBNT ON NEV/ WRITS OF ATTACHMENT. 
 
 493 
 
 substantially ft 
 
 charge of property, and effects under a Writ of Attachment, sh.riir'H 
 including the sums paid to any persons for assisting in taking huw I'aia. 
 an inventory, (e) and for appraising (/) (which shall be paid 
 for at the rate of one dollar for each day actually required for 
 and occupied in making such inventory or appraisement) ((/) 
 Eball be paid in the first instance by the Plaintiff, and may, 
 after having been taxed, be recovered by the Sheriff by action 
 Id any Court, having jurisdiction for the amount, (h) and 
 sach costs shall be taxed to the party who pays the same as 
 part of the disbursements in the suit against the absconding 
 Debtor, and be so recovered from him. (i") 10 Vic. c. 43, 
 F, 54. 
 
 APrnAISEMEXT. 
 
 19. (/') The Sheriff having made an Inventory and Ap- x.wWrit 
 praiscnicnt on the first AVnt of Attachment against any n.w 
 absconding Debtor, shall not be required to make a new mluisUeT 
 Inventory and Appraisement on a subsequent Writ of Attach* 
 ment coming into his hands, {I) nor shall he be allowed any 
 
 {e) Tiic inventory made necessary by section 14. 
 
 (/) Appraisements made^necessnry bj' section 16. 
 
 (.</) Five shillings per diem was tho remuneration allowed to appraisers by 
 2 Win. IV. cap. 5,8. 11. 
 
 (h) Actions for any amount, great or small, may be brought in the superior 
 courts. Tlieir jurisdiction cannot be taken away unless by express enactment or 
 nwcssnry implication: Hex v. The Rochdale Co. 14 Q. B. 188, per Varkc, B. If 
 the legislature confer upon an inferior court exclusive jurisdiction over a subject 
 mntter of complaint, then the superior courts are ousted by necessary implica- 
 tion, It may bo observed that theoretically our county and division courts have 
 not ousted the superior courts of any jurisdiction, but for all practical purposes 
 tiic contrary is the ca;ie: see section 328 C. L. P. Act, and notes thereto. 
 Superior courts in England have more than once stayed proceedings whce actions 
 were brought therein for trifling sums — ex. gr. twenty shillings or forty shillings: 
 POO Ketmard v, Jones, 4 T. R. 49.5; Wellitigton v. Artrrs, 5"T. R. 04; OuKon v. 
 I'trn/, 3 Burr. 1592; ifelton v. Garment, 2 B. & V. N. R. 84; see further Lowe 
 r. Lowe, 1 Biiig. 270; Dowling v. Powell, 2 Dowl. N.S. 1026; Stutton v. liament, 
 6 D. (fc L. 632. 
 
 (0 Q>t. If tho money disbursed has been expended in the Kcei)ing of live stock, 
 which through tho neglect or default of plaintiff is restored by the shoritT, would 
 plaiiititr be entitled to charge the money so disbursed against the absconding 
 debtor? See note v to section 16, 
 
 (*) Taken from lo\ter part of section 64 of C. L. P. Act, isr,(i. 
 
 V) This provision is analogous to that doctrine of law which holds that where 
 Roods are already in tho custody of the law an execution at once ottaches upon 
 them without an actual seizure : boo Ueekman v. Jarvis, 8 U. C. Q. B. 280. Goods 
 
 •t|^ ;'i\ 
 
'^1'; 
 
 m 
 
 .1 
 
 I 
 
 i 
 
 Hf: 
 
 
 484 
 
 ABSCONDING DEBTORS. 
 
 8. 20. 
 
 When Dc- 
 fi'iulant til 
 recDVcr 
 
 charfre for an Inventory or Appraisement except upon the 
 first Writ, (m) 19 Vic. c. 43, s. 54. 
 
 COSTS IN C.VSE OF ATTACIIMEXTS NOT WAUnANTED. 
 
 SO. (n) If at any time before execution issues, it appears 
 to the Court upon motion and upon hearing the parties bv 
 ' costs of do- affidavit, (o) that the Defendant was not an abscoiidiiip 
 Debtor within the true meaning of this Act, at the time of 
 the suing out of the Writ of Attachment against him, (p) 
 such Defendant shall recover his costs of defence, (q) and the 
 Plaintiff shall, by rule of Court, be disabled from tuking out 
 any Writ of Execution for the amount of the verdict rendered 
 or ascertained upon reference or otherwise recovered in such 
 action, unless the same exceeds, and then for .such sum onlv 
 as the same exceeds, the amount of the taxed costs of the 
 Defendant, (/•) and in case the sum so rocuvered is less than 
 the taxed costs of the Defendant, then the Defendant shall 
 be entitled, after deducting the amount of the sum recovered 
 from the amount of such taxed costs, to take out esecution 
 for the balance in like manner as a Dcfendunt may now bj 
 law liave execution for costs in ordinary casch. (.s) 19 Vic. 
 c. 4:}, s. 48. 
 
 Uf 
 
 trhen nttnchcd, Pimmprntod niu] njiprnised, continue to be so, os much under oaoh 
 enbscqnont iiltitclmifnt ns under the first. fSo one attMcliinj^ creditor, wlicro tlicrf 
 nre .scvornl, i* not cntitk-d to priority over the others; nil share rntabl^': ^('L' sec- 
 tion 'I'.K Tlie property of nh absconding debtor, when talieii into custody h\ ihi' 
 eheritr under an attachment, is not to be loolied ujxin so much ns tnlvcn iiitd ciis- 
 todj' for the satisfaction of tlic claim of the lirst attaching creditor as lor sail'- 
 keeping, and fur the benefit of nil creditors who shall come in within six nioiilhs 
 from the first attnchment: section 31. 
 
 (to") Nouo being necessary, it follows that none should bo charged for by tlo 
 Bheriff. 
 
 (m) Taken from C. L. P. Act, 18.">fi, seeti'in 43, which in that net was aa 
 original provision compiled from tlie then existing law, 
 
 (o) The motion being to the court can only be in terra time, and may be "at 
 any tlmo before execution issues." 
 
 (j>) See section 1 and notes thereto. 
 
 (q) A ro-euactmcnt of the latter pari, of section 4 of 2 Wm. IV. cap. Ti. Soo 
 also the first part of section 1 of 4'J Ueo. III. cap, 4. 
 
 (r) The precise words used in section 822 of C. L. P. Act. See that section, 
 and particularly note y thereto, 
 
 (•) See note A to section 822 of C. L. P. Act. 
 
n.] 
 
 BIGHTS OF SUITORS HAVING SUITS PENDING. 
 
 495 
 
 rEKDING SLITS TO CONTIXIE. 
 
 21, (f) Any person who has commenced a suit in any Pcrsonshav- 
 Court of Record of Tipper Cunada, (?<) the process wherein ,','i'^!>"Ium. 
 was served or executed before the suing out of a Writ of suit's al-aiust 
 Attachment against the same Defendant as an absconding Vvk'haant, 
 Debtor, may, notwithstanding the suing out of the Writ of ;.','','.)i ||'j',',,ig. 
 Attacliuient, proceed to Judgment and Execution in his suit """'*• ^"■ 
 ia the usual manner; (u) and if he obtains execution before 
 
 (/) Taken from C. L. P. Act, 1850, section 65, which was uhnost vurbatiui a 
 retiiactuient of 5 Win. 1\'. cup. 5, s. 4. ^ 
 
 (m) Tills section is confined in its operation to courts of "record," and as divi- 
 fioii courts are not courts of record, no suitor in a division court can Ijc entitled 
 to tlii3 inivileges by this enactment conferred upon suitors who have liuiia Jidc 
 sui'il out and served or executed a suiuuions or capias before attuchnient. 
 
 (r) The general principle is tliat goods which are i/« custodia legis are not the 
 Fiilijcet of execution: I[umphrfij v. Hums, Cro. Kliz. G'Jl ; G-.imlh et a! v. Jarvis, 
 SIJS. 'J72. The provision here enacted, which Is a re-enactment of 5 \Vm. IV. 
 Clip ", s. 4, shows that the legislature, when tiiey passed the latter stafute, con- 
 fiili-red it illegal to take goods in execution which hud been previously attached: 
 diniil.l'' e( al v. Jarvis, 5 O.S. 274, per llobinson, L". J. A debtor nbseonded on 
 null May. Various executions were about that time issued against his property, 
 Fill iimi pcr-sonal. On '2iid Mardi, 18415, some time before he absconded, ho exe- 
 cuteil a warrant to confess judgment in favour of A. I?. ; but A. 13. mitlicr entered 
 ii|) jiiiluimiit nor issued execution on this warrant till 15th June, 184:i, at which 
 tiiiio ilie (k'l>tor had absconded, and writs of attachment were in the slieriiVs 
 linnils. It will be noticed that as no process was issued by A. IJ. befon- the exe- 
 (iitioii of the warrant, none could have been "received before the suing out of 
 the rtttiuhiiu'iits." On 25th ilarch, 1843, after the giving of the warrant, but 
 bft'ore the debtor had absconded, and therefore before attachment i.'-sued tho 
 di'litor WHS served with jirocess at the suit of C. I>. Judgment was entered and 
 cxi'cntioii issued in this suit on Itjth July, 1848 — some time, it will be seen, after 
 the execution of A. B. J/eld that (J. D. havin;^ sued out process and served it on 
 the ileljtor before he absconded, was entitletf to proceed before the aVtnehing 
 creditors. If the only question were one as between A. 13. and C. 1). c/oarly as 
 tlie former obtained judgment and issued execution first, he would have iv claim 
 to he lii'>t satisfied. But as between A. B. and the attaching creditors, ho not 
 liaviiig sued out and served process tipon tlu^ debtor before he nbscondeil, could 
 nut he satisfied until after tlie attaching creditors. This re|(ugnancy to r enson 
 thcrel'oi'e appears to arise — C. I), lias a prior right over all attaching creditors, 
 ami yet has not prioritj' over A. B. who is postponeil till after the attaching 
 creditors. Jleld tiiat as between A. B. and C. 1>. no decision ought to take place 
 uiuil siieli time as the suits against the absconding debtors were carried to judg- 
 ment: T/m Bank of British isorlh America v. Jarvis, 1 U. C. Q. B. IS'.*. From 
 tills ease it would itppem" that tho most speed}- is not always the most available 
 proceeding, nnd that in one case at least the maxim " (Jut prior est in t< mpore, 
 ]>oU')r ext in Jure," is reversed. It is clear law that creditors having rommencetl 
 proceedings against an absconding debtor, but not havir,;; served ]>rocri<s upon him, 
 are Hot |)rivi!eged as against attaching creditors. Wherever cognovits or war- 
 rmis of attorney are taken without process this law will apply : Bird et al v. 
 /'c'ver el al, 17 "U. C. Q. B. 530. To entitle n judgment creditor to priority he 
 must show that his writ was served before the attachment issued; iJaniel v. 
 
 -ht 
 
 r j(ll • 1 1 
 
 
^■iiJl 
 
 % 
 
 490 
 
 Usufh suit 
 hv fraudu- 
 li'nt or 
 inllusive. 
 
 ABSCONDING DEBTORS. 
 
 [s. 
 
 90 
 
 I !.-.'• 
 
 the Plaintiff ia any such Writ of Attachment, he ehall have 
 the full advantage of his priority of execution, in the same 
 manner as if the property and effects of such absconding 
 Debtor still remained in in his own hands and possession, but 
 if the Court or a Judge so orders subject to the prior satis- 
 faction of all costs of suing out and executing the Attach- 
 ment. («j) 19 Vic. 0. 43, 8. 55. 
 
 FRAUDULENT JUDGMENTS. 
 
 33- (a) In case it appears to the Court in which any 
 such prior action has been brought or to a Judge thereof, il) 
 that such judgment is fraudulent, or that such action has 
 been brought in collusion with the absconding debtor, or for 
 the fraudulent purpose of defeating the just claims of liij 
 other creditors, (c) such Court or Judge may, on the applica- 
 
 I 
 
 1 4 
 
 
 Fitzell tt al, 17 U. C. Q. B. S65. Whero the writ had been earved and attach- 
 ment issued on the same day, and no evidence given to show at what time of day 
 either event took place, it was Iicld tiiat tlie attaching creditor must prevail : . . ; 
 see also Qaird et al t. Fettell, 2 Trac. B. 262. 
 
 (w) This is an equitable provision, which has existed ever since the passing of 
 5 Wm. IV. cap. 6, 8. 4. A discretion is vested in the judge, and is to be exer 
 cised by him in rcfurenco to the circumstance of each particular case that may be 
 before him. 
 
 (a) Taken from the latter part of C. L. P. Act 1856, 8.^55, which was almost 
 Tcrbatim a re-enactment of 6 Wm. lY. cap. 5, s. 4. 
 
 (6) Court or a judge. Relative powers: see note w to section 48 C. L. P. Act. 
 Ilere the power is restricted to the "judge thereof," i. e. of the court in which the 
 prior action has been brought. 
 
 (c) If made to appear — 
 
 1. That such prior judgment is fraudulent. 
 
 2. Or that such action has been brought in collusion withjtbe abscondlDg 
 
 debtor. 
 
 S. Or for the fraudulent jpurpose of defeating the just claims of bis other 
 creditors. 
 
 The court or judge may set aside snch judgment and execution, &c. 
 
 It is not necessary to tlie success of the application under this section tlijat ti;? 
 claim set up by the judgment creditor should necessarily be unfounded or fiMUi' 
 ulent. A bona fide debt may be sued for, and yet the action be brought " '. 
 collusion" or for "the fraudulent purpose of defeating the just claims of ctb', 
 creditors," Collusion has been defined aa a deceitful agreement or contnKjt u 
 twccn two or more persona, for the one to bring an action against the otht'; to 
 some evil purpose, as to defraud a third person of his right, «bc., or as a secret un- 
 derstanding between two parties who plead or proceed fraudulently against each 
 other to the prejudice of a third person. It is not necessary to show that the 
 collusion existed before the commencement of the suit. On the contrary, steps 
 collusivoly taken to expedite the obtaining judgment and thereby gain priority of 
 execution and thus to defeat a ratable distribution would be within the nilscmff 
 contemplated, and ought to be held within the remedy given : White v. Lwi, 
 
 [f,, i 
 
23] 
 
 ATTACHMENT OF DEBTS. 
 
 m 
 
 f 
 
 tion of the plaintiff on any Writ of Attachment, (<I) set aside 
 sucb judgment and any execution issued thereon or stay pro- 
 ceedings therein, (e) 19 Vic. o. 43, s. 55. 
 
 HOW DEBTS ATTACUKD AND LIABILITY OF DEBTOR. 
 
 23. (/) In case notice in writing of the Writ of Attach- rmc,-, <iings 
 merit has by the Sheriff, or by or on behalf of the plaintiff in i.f ti'je"' 
 such Writ, been duly served upon any person owing any debt ''"'''"'■ 
 or deiniind to, (^) or who has the custody or possession of 
 any property or effects of, an absconding debtor, (A) and in 
 ea^e such person after such notice (t) pays any such debt or 
 
 13 U. C. C. P. 292, per Draper, C. J. See also Bcvan v. Wfieat. 14 U, C. C. P. 51 ; 
 bldsoH V. McMuhon, lb. 5U1 ; and contra, Cuird et at v. Fitzitl, 2 Prac. 11. 202. 
 
 ((/) Attaoliinw creditors in n division court will not under this section bo 
 ahniUfJ to take exception to the prior judgment: Fixhn- v. SiiHty, 3 U.C. L.J. 69. 
 
 (() In n case ^vhere the debtor before ho absconded a,R\6 a confession to a 
 person ti) whom ho was not indebted, and tliat person entered up juiipi'meijt and 
 Uui'il execution, the court ordered tlie slieriff to retain the proceeds and divide 
 thiin ftiMDiigst all the attachment creditors who had executions in their bands: 
 b:r(j'm v. Plmlar, 3 0. S. 674. 
 
 if) Taken from C. L. P. Act 1856, s. 52, which was substantially a re-enact- 
 raeiit of Stat. U. C. 2 Wru. IV. cap. 5, s. 9. 
 
 (;;) The expression "owing any debt or demand to," it is believed, should not 
 ho liere taken to mean only a demand for a liquidated sum of money, but appears 
 to be used in a more general sense. If in construing the word as used in this 
 section we call to our aid another part of the statute (section 2r>) it would seem 
 that the words include demands other than debts certain. Section 25 and the 
 one under consideration are ju pari viatcrla. The former enacts that the sheriff 
 may sue for and recover from any person "indebted to such absconding debtor" 
 \\\i!"ddt, cliiim, properli/, or right of rtrf/oH," attachable under this act. It is 
 piTfectly U'ljitimate to call in this section to aid in tlio construction of the one 
 under consideration. When we do so, we find that the word "owing" may extend 
 to " ekiiiiis" or rights of action. The word is unquestionably used in its largest 
 sen.se. 
 
 ('() In a case decided under the old law, the court granted a rule against a 
 pi.rtv who had property of the debtor in his possession, ordering him to deliver 
 :' ip to the sleriff : MuUem v. Armstrong, M. T. 2 Vic. MS. R. it H. Dig. " Ab- 
 ■ ndinjT Debtor," 18. Also where a debtor who had absconded from tiie 
 ,ruvince, before his departure gave his cognovit for £700 to a person to whom 
 «' was not indebted, on which judgment was entered, execution issued, and some 
 '-oiiey made by the sheriff, and some paid to plaintiff's attorney, the court 
 riivTed the attorney to pay to the sheriff the money he had received, and the 
 sheriff to divide all the money between the attaching creditors who had execu- 
 tions in his hands: Berginv, Pindar, 3 0. S. 674; see also Thompson y. Farr, 
 «r.C. Q.B. 387. 
 
 (0 There does not appear to be any necessity for personal service of the notice. 
 The point was never raised for express adjudication ; but in one case, under the 
 oU kw. where the service was upon an agent, no objection was made : Clarke t. 
 I'nxulfoot et al, 9 U. C. Q. B. 290. 
 32 
 
 m 
 
 ^!$ 
 
 PM 
 
 '*?' 
 
 dll' i ? ' '' I '^ ' 
 
 wVfn ¥■ 1 S '* 
 
 m 
 
ipp 
 
 HI 
 
 '^. 
 
 m 
 
 A'tfscdlfDlRO DEtitORS. 
 
 [8.23. 
 
 11 
 
 :i 
 
 w 
 
 h 
 
 
 l\',' demand (J) or deHvei| anj sach property or effects to s«ch 
 absconding debtor, or to any person for the indiTidual vat 
 and benoEt of sach absconding Debtor, (k) he shall be deemed 
 to have done so frandulently, (/) and if the Plaintiff recoveni 
 Judgment against the absconding Debtor, and the property 
 and effects seized by tie Sheriff are insufficient to satigfj 
 such Judgment, such person shall be liable for the aniouot of 
 such debt or demand, (m) and for such property and effects 
 or the value thereof (n) 19 Vic. c. 43, s. 52. 
 
 (j) " Debt or demand." Qu. Doea the word demand include a claim for uoli 
 quidated damages? It will not bo eafe, in deciding the question, to follow Uie 
 Engliah decisions upon analogous enactments too closely. If we were to do m. 
 we should at once and without doubt arrive at the conclusion that "debtor 
 demand" meant only a claim for money certain in amount. Most of the EnglUL 
 cases decided upon the construction of tbeise words have arisen under Eng. 8t<t 
 3 <& 4 Wm. IV. cap. 42, s. 1 7. It enacts " that in any action depending in onv of 
 the superior courts for any debt or demand in which the turn sought to be reeo 
 vered and endortedon tit* writ of tummotu shall not exceed £20," tlie court or* 
 judge may fefer the case for trial to the sheriff, <tc. The cases clti. 'y restrici 
 the words ''debt and demand" to a demand of a liquidated nature: Jacqvttx 
 Bower, 7 DowL P. 0. 331 ; Jiojfcy v. Shoobridge, 9 Dowl. P. C. 967 ; PrUt v. Monm 
 a M. 4 W. 63 ; Allen v. Fuik, 4 M. & W. 140 ; Watson v. Abbott, 2 Dowl. P. C. 
 216; Smith v Brown, 2 M. «k W. 851; Lawrence v. Wilcock, 8 Dowl. P. C. 
 6S1 ; Colli! V. Groom, 1 Dowl. N. S. 490; Zixmorev. Beadls, lb, 666; llaUunx. 
 Maeready, 2 D. A L. 6 ; Wulther v. Mtss, 1 Q. B. 189. It is unsafe to rely to-, 
 much upon these cases, because the true meaning of "debt and demand," wher- 
 ever placed in a sentence, m<'st depend much upon the context. What is th^ 
 context in the above statute ? That the debt or demand shall be " n sure 
 indorsed on the writ or summons," by which is meant a sum that ma}; be prii- 
 perly computed and then indorsed. The meaning of the word " deuiaod" ii 
 thereby made specific. But are there in the section here annotated any word: 
 that can as a context be taken as na; rowing the meaning of the word " demand?' 
 Tae word itself, if alone, has a very comprehensive meaning. If not curtailed or 
 re stricted by the context, it is presumed that it will retain its general meaDin;. 
 The object of this enactment ia not to place simple issues before a sheriff for trial, 
 but to make available for the payment of the debts of an abscondiusr debtor Im 
 property and his claims for property or money as against others. If tlie word 
 " demand" does not include claims for unliquidated damages, it must at leeci 
 have a wider meaning as here used than in the English statute just mentioaed. 
 If the claim be one ejusdem ^sn^'uwith a debt, it is apprehended that the act 
 will apply: see Walker v. Niedham, 1 Dowl. N. S. 220. 
 
 (A) Where the debtor before he absconded and before attachment issued, made 
 an assignment to A. B. of all his (the debtor's) interest in a building contract and 
 all moneys due or to grow due thereon : held that the old act did not apply so u 
 to justify the party liable to pay the money ia withholding it from A. B, : Chr^'- 
 r: Proudfoot etcd,%\J. C. Q. B. 290. 
 
 (/) See note e to section 22. 
 
 (m) t. «. The debt or demand of the absconding debtor against him, not the 
 Remand of the plaintiff against the absconding debtor. 
 
 (»») »'. e. The property ond effects after notice delivered by him to the abscond 
 ing debtor or to some person for the individual use and benefit of the absconding' 
 debtor. 
 
 ei 
 
 W) 
 
«g.24, 25.] SUITS BY SaSBIfF FOE OVTSTANPIiNa DEBTS. 
 
 400 
 
 B8 cle«. 'y restrict 
 
 34. (o) If after notice as aforesuid of u Writ of Attach* iKnuciant'H 
 
 X '111 t« fT-»t del It! ir nil I'd 
 
 meut, (/') any person indebted to the abijcuuding Debtur, or i>} him aitur 
 bavin}.' custody of his property as afuresuid, bo sued for such in"y*''i'''i'iii 
 debt, doinaud or property by the absconding Debtor, or by ccijiuj."^"" 
 any pcnun to whom the absconding Debtor hiis assigned such 
 debtor property Mnce the date of the Writ of Attauhiueut, (</) 
 be uiay, on affidavit, apply to the Court or a Judge, to stuy 
 proceedings in the action against himself, until it bo known 
 vbether the property and effects so seized by the Sheriff be 
 saicient to discharge the sum or sums recovered against the 
 ibsconding Debtor, (r) and the Court or Judge may make 
 tach rule or order in the matter as the Court or Judge thinks 
 fit, and if neoessary may direct an issue to try any disputed 
 question of fact. («) 19 Vic. c. 43, s. 52. 
 
 WUEN SHERIFF MAY SUE FOK OUTSTANDING DEBTS. 
 
 25. (0 If ^^^ '^"^ ''"^ personal property, credits and Debtor of 
 effects of any absconding Debtor attached by any Writ of may >M)?u«d 
 Attachment as aforesaid, prove insufficient to satisfy the exe- 'out's ]"ro-' 
 cations obtained in the suit thereon against such absconding i^e'not^Huf-' 
 Debtor, (h) the Sheriff having the execution thereof may, by iatufy'" 
 rule or order of the Court or a Judge, to be granted on the ^'^'"""^ 
 
 (") Tftkon from the Intt^r part of C. L. P. Act 186fl, b. 62, which woe founded 
 opon Stat. U. C. 2 Wm. IV. cap. 8, 8. 9. 
 
 (p) See section 23. 
 
 (7) The (late of the writ of attachment must be tho daj on which it was issued: 
 
 KCtiuil A. 
 
 (r) Under tlie old law a defendant thus circumstanced was allowed to plead 
 the general issue and give the special matter in evidence. The provision of thia 
 let m mtioh to be preferred, because it prevents the necessity of conducting two 
 Baits to issue. One will be stayed till the other is determined. 
 
 (») See Interpleader Act: Con. SUt U. 0. cap. 30. 
 
 [() Taken from C. L. P. Act, 1856, section 63, which was substantially a 
 rfreuactment of 2 Wm. IV. cap. 6, s. 12. 
 
 la. 
 
 (tt) j>;fore proceedings can be had under this section, it will be necessary fur 
 the creditors to have entered judgment and issued execution. Should there be 
 «everal executions, it is for the sheriff to calculate the gruss amount of the claims. 
 If tile property and effects seized prove insufficient to satisfy the executions, this 
 enactment will come to his aid. The repealed section was clear upon this point 
 The con:mencement of it was as follows: "If a/ter judgment and execution by 
 «ny plaintiff," «fcc 
 
 ' i 
 
 
 . ^ i: 
 
 -J Hsi 
 
doo 
 
 I riHMii 
 
 ABSCONDTNO DEBTOR*/ 
 
 ■tfsjyn 
 
 h 
 
 mi ■ 
 
 4: 
 
 
 
 nppll!?niion of tl\<5 Plaintiff, in any such case, (i) sue for 
 and recover from any person indebted to such absconding 
 Debtor, the debt, claim, property or right of action attachable 
 under tliis Act and owing to or recoverable by such abscond- 
 ing Debtor, (»») with costs of suit, (x) in which suit the 
 ji>.'fendunt Rhnll be allowed to set up any defence which would 
 have availed him against the abs^conding Debtor at the date 
 
 I . I : I »"*•'" I .III'' ' t ■ I ' . 
 
 I . ■ " 
 
 ;, '! ,' t'...".-, •»■!■ , = ;-t ;■ rr.- - ■ -.-^ 
 (v) Tlio order may \w lind rx parte upon nn nflidiivit which sliows clonrh- 
 iihiintiff's n<j;ht tf) mnkc the a|)|plic:ition: CIkivt v. Frarer, 3 II. C, L. J. 1117, 
 The iif)idiivHii on wiiicU tlic Hpfilicatiou waa tunde in this ciiro wore thiit of tho 
 sheritr, slatiinf that th« real and pursoiial property and effects of llic defeiidiint 
 were hisiiihcli'nt to satisfy plaintiff's jiidirniont, and that, of plaintiff Rtatinj thi» 
 issue of tlie writ of nttacliineiit, tiio recovery of jndgment, that il was pnrtinllv 
 unsatistii'd, that all the real and |iersonal property of defendant was exlmiistcil 
 and insiitficient to Bntisfy the judtimcnt, and that Heveral persons within the juris- 
 diction of the court were indeblud to defendant: lit. 
 
 (w) The debt, claim, propcrli/, or right of action, «fec. These words (mbrace 
 much more tlian tlie term iwed in the old act, " tho amount of the debt mowing " 
 The sheriff is now enipoweretl to sne, not only for debts owing', bitt for cliiiin^ 
 property and rights of action attachable under this act, and "recoverable" by 
 the absconding debtor. Clearly more is meant than simple debts or elaims f«'r 
 ascertained nmountSi "Rights of action" may possibly extend to an agreement 
 by defendant to convey land to the debtor, or to many other such demands of mi 
 unliquidated nature. Tho intention of the legislature is, in tho absence of the 
 debtor, to attach iiis property (including bis available rights), for the satisfactloa 
 of his debts. 
 
 (z) Tho sheriff, it is presumed, must bring his suit within the proper juridic- 
 tion, or l)0 liable to the same consequences as other suitors. If ho bring au action 
 in the tiueeu's Bench for a cause of action within the jurisdiction of an inftrior 
 court and jiroperly cognisable therein, he would probably be restricted toinferi»r 
 court costs: C. L. P. Act, section 328. It may bo doubtful whether the extra 
 costs of defendant In such a case might be set otif against plaintiff's rerdict, Tiic 
 verdict of the sheritf is not his verdict. The amount recovered is not his monor, 
 bt)t the money belonging to the estate of the absconding debtor. If a dodiictino 
 were allowed from the sheriff's verdict, the loss would be that of the creditors 
 and not of the sheriff. The estate in the sheriff's hands, which he is in duty 
 bound to protect and nutke available for payment of the executions, would U 
 by his misconduct diminished. This the law will never suffer. On the otiier 
 hand, it may be argued that if this be the true construction, then defendant, who 
 waa improperly sued into the superior courts, will be the loser. Such a construc- 
 tion, it may be said, would perhaps be just towards the estate, but would be mwt 
 unjust towards the innocent defendant. To this objection it can only l>e replied, 
 that the defendant, though bound, perhaps, to defend the suit instead of coraprfl- 
 mislng it, need not necessarily I tho loser. The sheriff, it must be borne in 
 mind, is an officer of the courts. If he act improperly, whether wilfully or not, 
 in the conduct of his otfice, so as to prejudice the rights of suitors, he is amenable 
 to the courts. Besides, whether his misconduct be designed or inadvertent, if 
 suitors are thereby in fact made to suflfer, there is in general a remedy by actioi 
 against him and his eareties. Whether such remedy would extend to the case 
 supposed has not yet been decided. <••" "•* v-.'***"^" ^'^- 
 
S.20.] 
 
 DECLARATION IN ACTIONS UV SHERIFF. 
 
 r.0l 
 
 of the Writ of Attachment, (y) and a recovery in such suit 
 bv the Sheriff shall operate aa a discharr^o oa against such 
 ibscooding Debtor; (s) and such. Shciiff bhall hold the 
 loonejB recovered by him aa part of the assets of such 
 ibseonding Debtor, and shall apply them accordingly, {^z} 
 19 Vic. c. 43, a. 53. . j.,„^,.,f^ ,,j \Unh)mh,v;).<\ 
 
 FORM OF DECLAR.VTION. . f^jrf r^.,||,;v„ ^vrif 
 
 20, (rt) The declarution in any such action by the Sherift .' vcnnont to 
 shall contain an introductory averment to the effect follow- '.n (^ iniir's 
 iDg: (6) 
 
 A. B., Sheriff of, (&c.) who sues under the provisions of 
 the law respecting absconding Debtors, in order to recover 
 from C. D., Debtor to E. F., an absconding Debtor, the debt 
 dae {or other claim, according to the /acts') (t;) by the said 
 
 (y) Where the action was upon a promissory note made to the nbscondin;^ 
 debtor bol'iire he floil from the I'rovinco, and dofoiidant filed several ple«<» wliieh 
 at best only set up n pa-'i 1 failure of consideration, tho court seemed to think 
 that tlie (lifiiico was not . • ood one: Thompson v. Farr, 6 U. C Q. IJ. a87. The 
 testijlirn: Would the defei»ce now set up by defondiint as nirainst tiie sheriff, 
 avail (lereiidnnt if he were sued by the abscondinj^ debtor liimself ? In the cnse 
 jbuve iiiiiitioned, it is clear that in tho absence of fraud, tho defence set up conld 
 nut liiive been nuiintidiied as against the ab.-teondinfj debtor, if ho were plaintiff: 
 mlkhon V. Lake, M. T. 6 Wm. IV. MS U. A H. Dig. "Bill.^ of Kxchanj-e," Ac. 
 vi. 13; and Trickey v. Lame, M. it \V. 278; ])ixon v. I'ti'il et at, 4 O.S. .'527. 
 Meri'iiartinl failure of consideration when the qminlnm to be deducted i.s matter 
 mitof detinite computation but of unliquidated damngcs, is not a good defence to 
 ao action on a promissory note; Ke'dogj et ul v. Huatt, 1 U. C. Q. B 44.5; Cnulirr 
 y.ln. 5 U. C. e. P. 3B0. If tlie suit were in a division court, where equitable 
 consiJerations are allowed to prevail, it might probably be otherwise. 
 
 [t] Defendant, if afterwards sued, may set up the y«.» tertii by pleading the 
 right of tlie sheriff to recover against him under this section. The plea, it seems, 
 sLuuld be special, as there is no provision made to the effect that defendant may 
 plead the general issue and give this act in evidence. 
 
 (.'z) Where the sheriff sues for and obtains payment of a sum of monej' due t&'' 
 an abfconiling debtor, it is not, when collected, liable to prior writs of execution 
 in his blinds; Cann v. Thomas, 17 U. C. Q. B. 9. 
 
 (<;) Taken from tho latter part of section 53 of C. L. P. Act, 1856, which woft^ 
 soUtantially a re-enactmeut of 2 Wm. IV. cap. 6, s. 12. , oiJ 
 
 (i) Shall contain, <tc. An irregularity, it is apprehended, if averment omitted. 
 
 (f) This 18 similar to that contained in the repealed enactment section 12 of 2 
 
 ^ut. IV. cap. 6. But, as one might expect to find, the legislature have, in tho 
 
 I f'tnn hero given, carried out tho extended meaning of the words "debt" and 
 
 "indebted," The old form was prefaced with a recital that the plaintiff sued 
 
 "in order to recover such mm as C. 1). (the defendant) may owe to the said E. 
 
 ' ^- an abfooudiug debtor." In the new form, "in order to recover the <iebt due 
 
 Hir other claim according to the fact*)." From tliia cuiuporisuu of lb* old with 
 
 '<l 
 
 
602 
 
 .3.I*LA,XA 
 
 ABSCONDINO DEBTORS. 
 
 [8. 27. 
 
 i 
 
 I; 
 
 
 
 SlicrllTiiot 
 bdUiiil to 
 mie until 
 credltipr 
 Kiv«N IhiikI 
 
 C. t)., to the said E. F., complaino, Ac. (<l) 19 Vic. c. 43 
 8. 53. 
 
 BIIRRIFrS INDKMNITY. 
 
 97. («) The Sheriff shall not be bound to aue any party 
 as aforesaid until the attaching cr'^ditor gives hid bond irith 
 KivitNiHiiiii two sufficient sureties, (/) payable to such Sheriff by his 
 jiiiiiemuify ^^^^^ ^^ ^^^^ ^^^ j^^ doublo tho aoiouot or value of the debt 
 
 the new provisions, the iatention of tlio legislature to cnlargo tho muanltij; of tli« 
 word "debt" la manifout. 
 
 (d) If the declaration give, by woy of introduction to the notion, the exjilnnv 
 tion winch the statute malces necessary, tlie court hns no authority to exact more. 
 In doing so it would bo contravening tlie statute ; Thompson v. Furr, 6 L'. C. 
 Q. B. 8'.tO, per Robinson, C. J. For a form of a doclaratlon on a promissory note, 
 disclosing, in the opinion of the court, as much as was necessary to entitle plain. 
 tiff to sue on the note: see lb p. 887. The old practice permitted earli iiidiviiiual 
 creditor to sue for himself in liis own name, lie was declared to be entitled to 
 recover tlie amount owing by defendant to tho absconding debtor, "or ho muih 
 thereof as may be necessary to satisfy his claim." Where plaintiff was entitW 
 to £00 199. 8d. only, but sued defendant for £140, being tho wliole amuiint due 
 by defendant to the absconding debtor, the declaration was under this cnnctnictit 
 held to be clearly wrong: lb. Qu. Is the slieriff, who now sues on behalf of all 
 creditors, restricted in the same manner as each plaintiff was formerly? The 
 sheriff con only sue where thoro is a deficiency in the ordinary estate or assets if 
 tho absconding debtor, but is not, it is presumed, bound to restrict hinicelf to the 
 amount coining to the creditors if the defendant really owe tho absconding (iebtor 
 a larger sum. There is nothing in tlie enactment to tno contrary, and tlie lawdi- 
 avows multiplicity of suiia, and the splitting up of claims. The lemislature must 
 bo presumed to have had before them the old acts wlun framing tliis act. Indnu 
 they have repealed, re-enacted, and amende<l as re-enacted all the old provisions; 
 but they have dropped that provision, which, formerly restricted plaiiititT siur^ 
 debtors of an absconding debtor, to the actual claims of such plaintiff, ai;t\ml th.> 
 _ debtor himself. The words of the old provision have been omitted, and it niu-t 
 be inferred that tho omission was intentional and made for some good reason-a 
 reason wliich it is only possible to conjecture. Supposing this conclusion to be 
 right, it does not follow, tho sheriff being plaintiff, that any bad consequence can 
 arise. Should he sue for and recover a greater sum than is required to sntiffv 
 executions in his hands, he is nevertheless obliged to hand over the balance, after 
 satisfying these executions, to the absconding debtor or his ogent: see scctiuD 'it 
 
 (c) Taken from latter part of section 63 of C. L. P. Act, 1866. 
 
 (/) Qu. Who is to ^udge of the sufficiency of the sureties ? The bond dirfclol j 
 to be given to the sheriff for his protection under section 16 is left to the approval 
 of himself. Probably tho legislature intended the same with respect to the bund 
 here directed to be given. Both sections are in pari materia, and may, accordini; j 
 to a well-known rule, be brought to bear tht one upon the other to aid iu the coc 
 etruction of either. 
 
 (,g) The sheriff of a county is made a quati corporation sole. His successor in j 
 office may sue upon the bond to bo given under this section. If the action liafe| 
 commenced in the name of the sheriff in office for the time being, and he after 
 wards die or otherwise vacate the office, the action does not in consequence abate. 
 It may be continued by his successor in office. 
 
iio muaiiii);; of the 
 
 gg,2S,20.] WHEN DISTBIBUTION TO DE RATADLS. 
 
 or property aued for, conditioned to indemnify bim from all 
 costs, lujscs and expenses to be inoarred in tbe prosecution 
 of such action or to wbich he may become liable in conse- 
 (juencQ thereof. (A) 19 \io. o. 48, s. 53. 
 
 38. (t) In the eTcnt of the death, resignation or removal 
 from office of any Sheriff after such action brought, the action 
 shall not abate, but may be continued in the name of bis suo' 
 cessor to whom tho benefit of the bond so given shall cnuro 
 as if he had been named therein, (J) and a suggestion of the 
 Dcceosary fucts as to the change of the Sheriff as plaintiff 
 (ball be entered of record. (A;) 19 Vic. c. 43, s. 53. 
 
 WHEN DI8TIUUUTJUN TO DE RATABMi 
 
 30. (0 When several persons sue out Writs of Attach- 
 ment against an absconding Debtor, the proceeds of the pro- 
 perty and effects attached and in tho Sheriff's hands, shall be 
 ratably diHtributed among such of the Plaintiffs in such Writs 
 as obtain Judgments and sue out execution, in proportion to 
 the sums actually due upon such Judgments, (m) and tbe 
 
 608 
 
 mid-aiiior 
 limy con- 
 tiuuv tli« 
 action. >ui 
 
 rini'ftojlnfc'll 
 if Hi'Ttnil 
 jieiHoim take 
 iiul Writs 
 nKaiiist t^t) 
 Siiirif Ah- 
 Ri'onding 
 Doblor. 
 
 {h) Evidently refers to suits which may arise out of the action to be prosecuted 
 piimmnt to this eoction. Tho iudoinnity tnustt be not only fur costs, but for 
 losses and expenses" — words of very general signitication. 
 
 (0 Taken from latter part of section 63 of C. L. P. Act, 1856. 
 
 ij) TliQ conclusion of this section is the same in principle as the C. L. P. Act, 
 iectioii lai, "The death of a plaintiff or defendant shall not cnnse the action to 
 abate;" and section 133, " In the case of tho death of a sole plaintiff. , . .the legal 
 npresentative of such plaintiff. . . .may enter a suggestion of the death,. . . .aiid 
 tlic action shall thereupon proceed." 
 
 {k) See note z to section 132 C. L. P, Act. ' 
 
 (') Taken from C. L. P. Act, 1866, eection 57, which was substantially a 
 re enactment of Stat. U. C. 6 Wm. IV. cap. 6, s. 6. 
 
 (m) Under the first Absconding Debtors Act (2 Wm. IV. cap. 5) it wns consid- 
 ered that a first attaching creditor was entitled to priority over subsequent attiich- 
 ing creditors, and entitled to be paid his demand before they could have any claim 
 whatever: see Gamble et al v. Jarvit, 6 O.S. 272. It was thought that much 
 liardsliip might in consequence arise under that act in certain cases where all the 
 creditors were held back until such time as tlie first attaching creditor should 
 obtain satisfaction: lb. 277, per Robinson, C.J. The legislature, to remedy thi.t 
 state of things, passed the Stat. U. C. 5 Win. IV. cap. 5, s. 6, the principle of 
 wliich is retained in this act. But even before the Stat. 6 Wm. IV. caj). 6, in a 
 case where all tho attaching creditors had agreed among themselves to share 
 ratably the proceeds of defendant's property, tho court carried out the agree- 
 ment: i?eryt/i v. PiWur, 3 O.S. 674,. 
 
 M 
 
 ■01 
 
I,V 
 
 
 ifM 
 
 5W 
 
 Hi 
 
 ' t 
 
 M ySa 
 
 ) ^ 
 
 r 
 
 : 
 
 kiM 
 
 ¥.: 
 
 
 
 •it^K^r* 
 
 
 { 
 
 
 
 hu 
 
 h, 
 
 
 ^4 
 
 V •. 
 
 :^r,-^ 
 
 m 
 
 *' 
 ii»i». 
 
 \ h.^ 
 
 M 
 
 S' '■' 
 
 f >+ ' 
 
 i ( 
 
 ^Vf^rM 
 
 i ''^■'■■'.'^ 
 
 t> . f. 
 
 
 
 P'M 
 
 
 604 ^T'v^'n;^ absconding debtors. h'^^'T'*? [gg. 3q_32 
 
 Coart or a Judge may delay tho distribution, in order to nrc 
 reasonable time for the obtaining of Judgment against such 
 absconding Debtor, (n) 19 Vio. c. 43, s. 57. 
 
 WflEN JUDGMENT CREDITOtt IN DIVISION COURT TO PARTICIPATE 
 
 30. (p) Every Creditor who produces a certified memo- 
 randum from the Clerk of any Division Court, of his Judg- 
 ment as aforesaid, (p) shall be considered a Plaintiff in a 
 Writ of Attachment who has obtained Judgment and sued 
 out execution, end shall be entitled to share accordingly, (n) 
 19 Vic. c. io, 8. 57. 
 
 31. (/•) In case the property and effects of the absconding 
 Debtor be insufficient to satisfy the sunas due to such Plain- 
 tiffs, none shall be allowed to share, unless their Writs of 
 Attachment were issued and placed in the hands of the 
 Sheriff for execution within six months from the date of the 
 first Writ of Attachment, (s) or in case of a Warrant of 
 Attachment, unless the same was placed in the hands of the 
 Constable or Eailiff before or within six months after the date 
 of the first Writ of Attachment. (/) 19 Vic. c. 43, s. 57. 
 
 SURPLUS TO mo RF.STORRD. 
 
 When ,iii 3S. (m) If after the period of one month next following 
 
 ureiiitDis'.Hie the rctum of any execution against the property and effects 
 remaining '" of any absconding Debtor, (v) or afcer a period of one month 
 
 Creditors 
 unil(T Uivi- 
 Hiun Court 
 juilj;nients 
 to shine 
 pari piissu. 
 
 Who to be 
 entiili'il to 
 sliare if the 
 l)roi)erty 
 proves in- 
 giillieient to 
 pay all. 
 
 (n) Tho inference from this provision la that an attaching creditor who, witli- 
 out good cause, delays for an unreosonable time to proceed to judgment, will lose 
 nil right to share in the proceeds of the debtor's estate : see Gamble ct al v. Jarm, 
 5 O.S. 211, per Robinson, C. J. 
 
 (o) Taken from section 67 of C. L. P. Act, 1856. 
 
 (p) i. e. According to section 17. 
 
 (9) Judgment creditors in a division court are not entitled to priorit}" in respect 
 of thei' judgments where suit commenced before the issue of writs of utlaehinenti 
 see note u to section 21. 
 
 (r) Taken from latter part of section 57 of C. L. P. Act, 1856. 
 
 («) As to computation of time: see C. L. P. Act, section 342, and notes thereto. 
 
 {t) The latter part of this section has relation to division court process. 
 
 (m) Taken from C. L. P. Act, 1856, section 58. which was substantially a 
 re-enactment of Stat. U. C. 2 Wm. IV. cap. 5, s. 17. 
 
 (») This provision seems to contemplate the case of a sheriff having had only 
 one execution in his hands, which he returned. '' 1/ after the period 0/ oni 
 
'f" [ss. 30-32. 
 
 8. 32.] 
 
 RESTORATION OF DEFENDANT 8 EFFECTS. 
 
 505 
 
 : TO rAUTICIPATE 
 
 certified inemo- 
 irt, of his Judg. 
 
 a Plaintiff in a 
 Igment and sued 
 accordingly, (j) 
 
 )f the absconding 
 le to such Plain- 
 a their Writs of 
 lie hands of the 
 1 the date of the 
 of a Warrant of 
 the hands of the 
 the after the date 
 ic. 0. 43, s. 57. 
 
 h next following 
 iperty and effects 
 iod of one month 
 
 creditor who, with- 
 jndi^meut, will lose 
 mbte et al v. Jurvu, 
 
 from a distribution under the order of the Court or a pmiMity to 
 
 , . , . , 1 , t •> p . ,, . 111! Ui'livcred 
 
 Judge, (w) whichever last happens, ana after satisfying uj.. 
 
 the several Plaintiffs entitled there bo no other Writ of 
 Attachment or execution against the saine property and 
 effects in the hands of the Sheriff, then, all the property and 
 cffect.s of the absconding Debtor, or unappropriated moneys 
 the proceeds of any part of such property and effects, remain- 
 ing in the hands of the Sheriff, together with all books 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 persons in whose cus- 
 tody the same were found, or to the autiiorized agent of the 
 absconding Debtor, and thereupon the responsibility of the 
 Sheriff in respect thereto shall determine. 19 Vic. c. 43, 
 B. 58. 
 
 month uexl following the return," ike. "Month" means a calendar month : Con. 
 Stat. I". C. c.ip. 2, 8. 13. " After the period of one month,'" tiiat is, the montli must 
 be fully expired. It will not begin to run until the day next after the return of 
 the writ. It must then fully expire, the lust day being inclusive: see C. L. V. 
 Act, section 342, and notes tliereto. 
 
 (w) This provision contem])lates the case of a sheriff who has had several exe- 
 cutidiis in his hands, to satisfy which a distribution has been made pursuant to 
 nitidii 2',). "After the period of one month from a dialribution." As to "period" 
 and "month :" sec preceding note. 
 
 lill 
 
 I 
 
 D priority in respect 
 vrilsof utlftclimi'ut: 
 
 56. 
 
 !, and notes thereto. 
 
 :>urt process. 
 
 vas substantiftlly R 
 
 iff having had only 
 r the period of ont 
 
 '^ikr^Mm 
 
 
 i 
 
 ill 
 

 r 
 
 
 
 •yixr-ircr 
 
 EJECTMENT 
 
 CPN. Stat. U. C. Cap. 27. 
 
 [{ 
 
 An Act respecting Ejectment, [a) 
 
 Her Majesty, by and with the advice and consent of the 
 Legislative Council and Assembly of Canada, enacts as 
 follows : 
 
 ' 'f'(a) Ejectment is that form of action by which a party having a right of entry 
 npon land recovers its possession: see Cleveland v. Boice et al, 21 U. C. Q. B, 609, 
 It is of the class described in treatises on pleading as " mixed." It is owing to its 
 anomalous character usually treated as a separate and peculiar mode of procei'din^. 
 Unlike other forms of action general rules have been made for it alone, and rules 
 extending to other forms of action have been held not to extend to it. The legis- 
 lature in like manner has in this act made separate provision for the action of 
 ejectment. Being for the recovery of land anciently, it was esteemed of too great 
 solemnity to be pioceeded witii like actions for chattels or personal wrongs. 
 Hence it was clogged with fictions which produced delay and was atteiidt'd with 
 great expense. Originally it was a mere action of trespass to recover tlie damages 
 sustained by a lessee for years when ousted of his possession. Afterwarda by a 
 fiction tliis remedy was made use of for tlie recovery of all possessory rights to 
 corporeal hereditaments. Since the fictions of the actions were in this province 
 abolished by 14 <fe 15 Vic. cap. 114, it will serve no good purpose further to 
 dwell upon them. Our statute of 1851 was in advance of legislation in HnglamI, 
 and effected to some extent that which is here to a great extent acconijili-^lied, 
 viz., the assimilation of ejectment to other forms of action. The origin of both 
 seenps to be the Irish Process and Procedure Act, 13 & 14 Vic. cap. 18. Our 
 C. L. P. Act, as at first passed, included proceedings in ejectment as well ns in 
 many other matters which by the Consolidated Statutes are now placed in dis- 
 tinct statutes. It must betaken for granted that the legislature, by the fact of 
 their having taken the ejectment proceeding out of the C. L. P. Act, meant that 
 all the necessary provisions to carry out the practice in ejectment are_conta incil 
 in this act: Leeuon v. Higgina, 4 Prac. R. 340, per Draper, C. J. But it eeerm 
 desirable to have the powers of amendment apply to ejectment suits ns well 
 aa others. The tendency of modern legislature has been to abolish ns much 
 as possible the distinction between ejectment and ordinary actions ; and unless 
 the courts are prevented by express legislation or some clearly established rule 
 of law or practice from assimilating ejectment to other actions in relation to 
 powers of amendment, the courts ought to cio so: Vhadsey v. limisom, 17 U, C. 
 C. P. 629. Formerly it was necessary to show that the party in possession was 
 in fact holding as a trespasser, or a mere intruder or occupant without right, but 
 according to the present proceeding, the so'e question seems to be who is entitled 
 to the possession, without any reference to the manner in which he may have en 
 tered: Jiob'tison v. Smith, 17 U. C. Q. B. 218, per McLean, J. ; see also Prince i. 
 Moore, 14 U. C. C. P. 349. Possession is prima facie evidence of title: A«''' 
 et al V. Paterton et al, 22 U. C. Q. B. 167 ; Hunter v. Farr et al, 23 U. C. Q. B. 
 
S.1.J 
 
 COMMENCEMENT OF ACTION. 
 
 507 
 
 1, (h) The action of Ejectment shall be commenced by now action 
 Writ, (0 directed to the person in possession by name, (r/) meiued. 
 and to all persons entitled to defend the possession of the 
 
 324; Henderson v. Morrison, 18 U. C. C. P, 221. A person in possession of land 
 without other title hns a devisable interest: Anher et ux. v. Whithck, L. R. 
 1 Q. B. 1. One who occupies as his own land belonging to anotlier, and before 
 tlie expiration of twenty years becomes tenant to the latter of lands adjacent 
 to the land so occupied, does not thereby change the character of his posses- 
 sion ; Dixon v. Baby et al, L. R. 1 Ex. 259. Offer to purchase held sufficient to 
 support plaintiff's title against defendant: PenUnrftonv. Brownlee, 28 LT.C Q.B. 189. 
 There was at one time much doubt as to the right to trj^ a question of boundary 
 in ejectment, the Queen's Bench holding that there was the right : Irunn v. Soger, 
 21 U. C. Q. B. 373 ; s. c. 22 U. C. Q, B. 22 ; Seztwt. v. Paxton, 21 U. C. Q. B. 389 ; 
 Bmiles V. I'augiiney, lb. 391 ; and the Common Pleas the reverse: Lund v. Savage, 
 12 U. 0. C.P. 143. But the view of the Queen's Bench has since been sustained by 
 the court of Error and Appeal : Sexto7i v. Paxton, 9 U. C. L. J. 207 ; also Hunter v. 
 Bnptie et al, 23 U. C. Q, B. 43. Ejectment will not lie. for pews in a church: 
 Ridont V. Harris, 17 U. C. C. P. 881. County courts have jurisdiction in ejectment 
 in certain cases : see Stat. 23 Vic. cap. 43. 
 
 (h) Tiiken from C. L. P. Act 1856, s. 220, the origin of which was F.ng. Stat. 
 15 k \(> Vic. cap. 76, s. 108. Founded upon the first report of the Common Law 
 Commissioners, s. 90. This section is prospective : Doe a. Smith v. Roe, 8 Ex. 127. 
 
 (c) An infant plaintiff may sue out a writ in his own name, but after appear- 
 ance entered he cannot take any further step, such as giving notice of trial, with- 
 out having a next friend appointed: Campbell v. Matheicson, 6 Prac. K, 91. A 
 lessee may maintain ejectment before entry: Cleveland \, Boice el al, 21 U, C. 
 Q.B. C09. 
 
 ((/) Persons in actual possession are intended. Mere constructive possession, 
 where the land is in truth vacant, will not suffice : Doe d. White v. J\i/e, 8 Dowl. 
 V. C. 71. But where a party though removed from off the i)reniises had left 
 beer in the cellar of a house on the promises, he was considered in actual pos- 
 session : Savage v. Dent, 2 Str. 1064. Not so, however, when he had locked up 
 the house without leaving any propertj- on the premises : I'oe d. Lord Darlington 
 V. Cock et al, 4 B. & C. 259. A house in fact untenantable and empty cannot 
 be itiokod upon as being in the actual possession of any body : Doe d. Schovell 
 V. /i(;f, 3 Dowl. P. C. 691. Nor land if the house thereon has been pulled 
 down: Doe d. Norman v. Roe, 2 Dowl. P. C. 399-428. Where there are several 
 bouses on the premises, some occupied and others not, the court maj- give special 
 directions as to the latter: Doe d. Chijipindaie et al v. Roe, 7 C. B. 125. But 
 proceedings, as on a vacant possession, cannot be had uidess it clearly appear 
 thftt tlu) premises are reallj' vacant : Doe d. Burrows v. Roe, 7 Dowl. P. C. 326 ; 
 Doe (/. Tiniothg v. Roe, 8 Scott, 126. Service of a writ in the case of a vacant pos- 
 session addressed to the assignees and per.sonal rri)resentatives of S. B. deceased, 
 by posting copies on the premises, held good : Harrington v. Bytham, 2 C. L. R. 
 lUoS. Ljoctment may be maintained successfully against a railway eoinpany : Doe 
 <1. Hutchinnon v. The Manchester, Bury A' Rossendale Railway Co. 14 M. »fc W. 687 : 
 Goll et at V. The Erie and Niagara Railway Co. 19 II. C. C. P. 357 ; but not after 
 iibitration as to the land taken, and payment or tender of the amount awarded : 
 ihed. Armitsteadv. The North Staffordshire Railway Co. 16 Q. B. 02rt ; Doe d. 
 }hui;on V. The I^ecds and Bradford Railway Co. lb. 796 ; Rankin v. The Great 
 Woitrn Railway Co. 4 U. C. C. P. 463 ; Cotton v. The Hamilton and Toronto Rail- 
 "w/ 1-'" 14 U. C. Q. B. 87 ; Grimshawe v. The Grand Trunk Railway Co. 19 U. C. 
 Q. C. 40.'5. 
 
 ( 1 
 
 ■ m% 
 
w 
 
 it &7 
 
 
 1 ?4* 
 
 ' 1. i ''* 
 
 I! 
 ' i;ui 
 
 If- 
 
 01 
 
 508 
 
 EJECTMENT. 
 
 [S.l. 
 
 property claimed, ('-) which property shall he doscribeJ in 
 the Writ with reasonable certainty. (/) 19 Vic. c. 43, s. 220. 
 
 If it cnii be sliewn that the parties served were really in possession when 
 served, slitrlit errors in the names or other deseription will not vitiate tlip pro- 
 ceedinsja : J)()e d. Folkes v. Roe, '1 Dowl. P. C 51)7 ; J)<>e d. Front v. Hoc, ?, Duwl 
 P. C. .5t).". ; Doe d. Peach v. Roe, 6 Dowl. P. C. ()2 ; Doe d. Smith v, Jinr, Ih. C'Ji)' 
 The court has power to strike out defences made by persons not in possession by 
 themselves or their tenants: section 14. 
 
 When a person is made defendant who is not in possession and claims no lii^ht 
 to the land, lie is entitled on npplieation to have his name struck out: IlnHv. 
 Yuill el al, 2 I'rac. li. 242 ; or to have the writ set aside : Wallace v. Acre, 5 Pino. }\, 
 142. lint he should not enter an appearance: Harper v. Lomides, 1.5 U. C. Q. JJ. 
 480. If he be not a sole defendant, and tiio remaining; defendant enter an appear- 
 ance, both will be liable for costs: D' Arcy v. White et nl., 24 U. C. (J. B .')"(i; hut 
 see Krrr v. Wnldie et al, A Prac. U. 138. So each defendant, though only defi'ndin" 
 for part, is liable for the whole costs of the action: Johnson et al \. Mills etal 
 L. R. 3 C. P. 22. 
 
 (c) The present act changes the mode of procedure rather than the law for the 
 recovery of land, and therefore the right which prevailed under the old practice 
 to bring the action against all persons found in possession of land, without refe- 
 rence to the fact whether their possession is joint or several, still exi.«ts : Batmer- 
 man v. Deiexon et al, 17 IJ.C. C.P. 257. A tenant served with a writ should notify 
 his landlord of the service : section 50. Heretofore the courts htive refused to 
 sot aside n judgment in ejectment against a tenant who concealed the proceedings 
 from his landlord, there not being otiierwise any evidence of collusi(ju : Guoihille v. 
 Jiadtitle, 4 Taunt. 820. It was said to the landlord, " if your tenant has done you 
 wrong, that is a matter between you and him :" lb. If jiremises be let to A. and he 
 sublet to 15, C, and D, and these latter be in possession, the writ should be directed 
 to them as well as to A : Doe d. Lord Darlinrjton v. Cock et al, 4 B. i C. 259. 
 Where the writ has not been directed to, but has been served on the tenant in 
 possession, it is questionaiile whether the tenant can apply to set aside the writ 
 as irregular : Thompxon v. Sladc, 25 Ij. J. Ex. 3U0. However, if instead of inakini; 
 application for that purpose he apply for particulars or for other infoi mation, and 
 allow ten days to elapse, he will be deemed to have waived the irregularity, sup- 
 posing it be such, and his application should then be not to set aside the writ but 
 to be allowed to appear and defend according to section 9, which provides for aa 
 appearance of persons not named in the writ : Ih. It is enacted that the writ 
 shall be directed to the " persons" in possession, Ac Whether a mere servaut 
 in possession who claims neither estate nor interest in the premises can be made 
 defendant, is not clear: see Faritom v. Ferrihy, 26 U. C. Q. B. 380. But this much 
 is clear, viz., that if the person served, though a servant, assent to the character 
 of a tenant and appear to the action, that assent, coupled with the appearance, 
 will bo sufficient evidence to go to the jury: Doc d. James et al v. Slauloti, 2 B. 
 «fe Al. 371. " It is sufficient to subject a party to the action that he has a visible 
 occupation of the prcir.ises, and it is not necessary that he should have .such an 
 interest as to enable him to maintain trespass, When a servant is served with a 
 notice of ejectment, as tenant in possession, it is conipett-nt to him to ex|)lain iiis 
 situation, and so to set the other party rtght or to mislead him. If he adopt the 
 latter course it is very jwssible that a jury may think tluit he ought to be con- 
 sidered as the tenant in possession : Jb. per Bay ley, J. Where there are several 
 Eersons in possession there may be an action against all, or an action against each, 
 ut if the title of all be identical, plaintiff may be ordered to consolidate: Grim- 
 Htane v. Jiurffen et al d. Lord Gowtr et al, Barnes, 170; Thrudout d. Jonnw 
 Skenlon, 10 B. A C, 110. 
 
 (/) A description sufficient to identify the land the subject of the action with 
 
 N 
 
•] 
 
 CONTENTS OF WHIT. 
 
 WRIT. 
 
 po;-, 
 509 
 
 <8. (ff) The Writ shall state the names of all the persons ciit.nts of 
 in whom the title is allej^ed to be, (/t) and shall command the 
 persons to whom it is directed, to appear in the Court 
 
 the property duscribed iu the writ is nil tliat is required. This is what ia meant 
 bv roHSoniible certainty. The want of it will not niillifv the writ, but only entitle 
 the oppoMito j)arty to apply for better particulars : iJoit d. Snvn<i(r.i v. Duke of 
 yomisile, 7 T. R. 332, n ; JJoe d. Saxton ct al v. Turner, 11 C. li. SOtt; also section 
 13. Though the siifTieienoy or insufficiency of the description in the declaration 
 under the old jiracticc will not be a satisfactory guide, yet being some guide a 
 rtftTcuce may be made to the principal cases; l>oc d. MixrrioU v. Jidwanh, 6 C. 
 * P, 208 ; Doe d. Boi/s ct al v. Carter, 1 Y. & J. 492 ; Doc d. A'dtvarda H al v. Gun- 
 hi(jH(d, 7 A. A E.'24n. 
 
 L. P. Act, 1856, s. 221 ; the origin of which was Eng. Stnt. 
 s. 109. Founded upon the first report of the Coniniuu Lav* 
 
 
 <^7 
 
 {(/} Taken from 0. 
 15 It ICi Vic. cap. 7f., 
 Commissioners, section 91. 
 
 (A) These words correspond with section 195 of the Irish C. L. P. Act Ifi & 17 
 Vic. cap. 113, under which it was held that a In. ' . .id seized of lands in right of 
 his wife might eject for non-payment of rent in his owi> name, and that the wife is 
 not ft necessary party to the record : Holmes v. Ilcniief/an, 28 L. T. Rep. 25. And, 
 jifrMoDidiiin, C. J., " I believe for the last century no one has doubted but that 
 tlie luishiiiid has such an estate in the lands of the wife as to enable him to make 
 a lease of the wife's lauds for the purpose of bringing an ejectment. The present 
 statute does not alter the law, and therefore we must allow the cause shown with 
 costs," But see Con. Stat. U. C. cap. 73, s. 13. It was lield that a guardian 
 appointed to an infant estuto under our statute 8 Geo. IV. cap. 6, s. 2, may bring 
 fjoctmeiit for the purpose of trying the infant's title: Doe d. Atkinwn v. McLeoJ, 
 8 U. C. Q. B. 34 1. But he must proceed as guardian in the name of the ward : 
 lunsa/ V. Xewcombe, 1 7 U. C. C. P. 99. Under the old law, when a doubt arose 
 aa to whether the title was iu one of several parties, it was usual to insert several 
 derr.ises. There ia nothing now to prevent title being alleged iu several [)laintiff8, 
 "or some or one of them:" IJlliss v. Elliss, E. B. &. Li, 81. But although not so 
 alleged, it would seem from the peculiar wording of several sections of this act 
 aij'reeing with sections of the repealed act 14 «fe 15 Vic. c. 114, that one of several 
 pTnintitYs may recover: Ihdhr et al v. DonuUhon, 10 U. C. Q. B. 643. (iy this sec- 
 tion it is made necessary to name in the writ all the persons in whom •' title is 
 alltged," and under a subsequent section it is made necessary to attach to the 
 writ n notice of tho" nature of the title:" section 4. Where there are several 
 plaintiffs claiming each an undivided interest, i' is not necessary that they should 
 prove a joint title, or any privity between them, out they may nuiiutain tho action 
 in their joint names upon separate titles : Duller et al v. Donaldson, 1(» L'. C. (i. B. 
 64;!; yoHi,^ ct al v. JScohie, ib. 372; Bradlei/ el al v. Ttrrii, 20 U. C. Q. B. 503. 
 Where several {>laintiffs claim jointly, but title is not proved in all of them, there 
 will be a verdict for those plaintiffs who prove title and for defendant against the 
 otlicrs: II Hson v. Baird, 19 U. C. C. P. 98. An amendment ought not to be allowed 
 after entry of the record for trial, by striking out all the names in the summons 
 ill ejectment and substituting o new set therefor: Jiobinson v. Belt. 9 U. C. 0. P. 
 '21. 15ut in ejectment by mortgagee of devisee against heir-at-law, in which tho 
 inestion wag as to the competency of t\w testator to make a will, it appeared at 
 tlie trial that the legal estate was in two trustees, the devisee having an equitable 
 estate only ; an amendment was allowed by the addition of the names of the two 
 trustees, they being present in court and consenting to be parties ; Blake et al v. 
 ■OPM, 7 H, 4 N. 4ti6. 
 
 n 
 
 
 I n 
 
 I) 
 
 i 
 
610 
 
 EJECTMENT. 
 
 [8. 3. 
 
 4 
 
 t 
 
 4 5 t » 
 
 n 
 
 Teatfi, and 
 out of what 
 office to 
 issue. 
 
 Duration 
 ami cmi- 
 tcnts of. 
 
 from which it la issued, (J) within sixteen days after service 
 thereof, (A?) to defend the poss ession of the pntp ftrty sued for, 
 or such part thereof as thoy moy think fit, (') and it shall 
 contain a notice that in default of appearance thoy will bu 
 turned out of possession, (m) 
 
 3. (n) The "Writ shall bear teste of the day on which it 
 issues, (o) and shall be issued out of the proper office in the 
 County wherein the lands lie, (/j) and shall be in force for 
 three months, (q) and shiJl be in the form No. 1, or to the 
 like effect, (r) and the name and abode of the Attorney 
 issuing the same (s) or (if no Attorney) the naiuo aud resi- 
 
 (j) Mode of appearance : see section 8. 
 
 (k) In computing the sixteen days allowed to a defendant to appear, the day 
 of service must bo excluded: Sco/t v. IHckson, 1 Prnc. 11. 3fi6; Afimfr/omen/v. lirn<fR 
 et al, 2 U. 0. L. J. N.8. 72; Stanton v. Jirittle, I F. & F. 468. No addit'ioniil time 
 is given by reason of the last of tlie sixteen days being a Sunday : Vline v. tVin/cy, 
 4 Prac. R.' 87 ; contra, Adshmd v. Upton, lb. 88, note. 
 
 {I) Tlie partj' appearing may limit his defence to part of tlie property des- 
 cribed in tlie writ: section 12. 
 
 (>n) The want of this notice would, it is apprehended, make the writ irregular. 
 
 {n) Taken from the latter part of section 221 of C. L. P. Act 1850; the origin 
 of whicii is Eng. Stat. 16 «t Irt Vic. cap. 76, s. 169. Founded upon the first report 
 of the Common Law Comniissioners, section 91. 
 
 (oj See note q to section 11 C. L. P. Act. 
 
 ij)) Before tliis act the law was otherwise: see Pusamore v. Smith, 1 Prnc. R, 
 818. A writ issued from a county other than that in which tlie lands lie, thou;;!! 
 not a nullity, .nay be set aside on application to a judge in chambers: 77ie Metro- 
 poliiuH Building- Society v. McJ'herson, 2 U. C. L. J. 228, per Burns, J. But wluii 
 defendants appeared and allowed issue to be found in a county other than thatia 
 which tlie land was situate the court refused to interfere, leaving defendants to 
 their remedy by writ of error when judgment was entered : The Trmt and Ln<m 
 Co. of Canada v. Stevens, 2 Prac. R. 60. The venue in ejectment is of course local : 
 JUcKindscy v. Johnston, 14 U. C. Q. B. 209 ; and is shown by the description of 
 the premises in the body of the writ and not by the marginal note : Riddell v. 
 Sriar, 2 Cham. R. 198. But the court or a jucfgc may order the trial to take 
 place in any county other than that in which the venue is laid : section 23, C. L. 
 P. Act. 
 
 (g) i. e. Three calendar months: Con. Stat. U. C. cap. 2, s. 13. As die service 
 of the writ need not necessarily be personal, no provision is made for the renewal 
 of tlie writ as in the case of writs of summons in personal actions : section 21 C. 
 u. P. Act. 
 
 (r) When the legislature prescribe a form of procedure it should not be 
 r'.eparted from, unless for some good reason: see note c to section 63 C. L. P. Act, 
 
 (s) The writ should be endorsed with the name and abode of the attorney 
 nctnaTly suing out the same, whether he sues out the same as agent of the attorney 
 or OS himself attorney for the claimant: Webster V. Gore, 4 Prac. R. 169; see to- 
 ther section 12 C. L. P. Act, and notes thereto. 
 
writ irrcgulftr, 
 
 8,4.] 
 
 NOTICE OP claimant's TITLE. 
 
 611 
 
 dence of the party (t) shall be endorsed thereon, in like 
 manner as the endorsements on Writs of Summons in a 
 personal action, («) and the same proceedings may be had to 
 afcertiiin whether the Writ was issued by the authority of the 
 Attorney whoso name appears indorsed thereon, and who arrd 
 what the Claimants are, and their abode, and as to staying 
 the proceedings upon Writs issued without authority, as in 
 the case of Writs in personal actions, (i^) 19 Vic. c. 43, 
 8. 2'Jl. 
 
 NOTICE. 
 
 4. (a) To the Writ and to every copy thereof served on N..tice of 
 any party, shall bo attached a notice of the nature of the title titio to he 
 intended to be set up by the Claimant, as for example, by tu« Writ. 
 rrrant from the Crown, or by deed, lease or other conveyance 
 derived from or under the grantee of the Crown, or by mar- 
 riaae, descent or devise, stating to or from whom, or by length 
 of possession, or otherwise, (t) according to the nature of the 
 
 (/) See note u to section 13 C. L. P. Act. 
 
 («) The indorsoments will be amendable, it is presumed, in the same manner 
 as ill jiei'sonal actions: see section 48, C. L. P. Act. In fjectment tlie courts have 
 always been liberal in allowing amendments : see Doe d Siinpaoii v. Hull, 6 M. & 
 G. m ; Doe J. Parsoym v. Iknihcr, 8 M. & W. 15S; Doc d. WiKon et nx. v. Beck d 
 d, 22 L. J. C. P. 6 ; Doe d. Bncon d al v. Brydgen, 1 1). A L. 954 ; Doc d. Rabbits it 
 al V, Wekh, 4 D. A L. 115 ; Doe d. Sinclair v. Arnold. II. T. 4 Vie. MS. R. & U. 
 Di;. " Aniendmont," II. 8; Doe d. AuxmHny. Mnnro, I U. C. Q. B. 100. 
 
 {v) See section 60, C. L. P. Act, and notes thereto. 
 
 [a] Taken from C. L. P. Act 185G, section 2*22, whicli in that act was a new 
 and ori|fiiial provision. 
 
 (/>) Tlio object of this section is to render it obligatory upon a claimant in 
 ejectiiieiit to make known to defendant the title intended to be set up by plaintiff, 
 6IJ tliiit defendant may with the least possible expense prepare himself to meet it. 
 Abiinilar jjrinciple is involved in section 8, which makes it necessary for defen- 
 dant to inform plaintiff of the grounds of defence intended to be relied upon by 
 the former. The manifest design of both enactments is that neither party to a 
 suit shall be kept in ignorance of the case intended to be set up by his adversary. 
 A wilt which informs a defendant that pl.antiff claims the land of which he is m 
 possession gives no tangible information. The bare issue of a writ of itself 
 shows that the party issuing it advances some claim. But it is only just that a 
 defendant should be informed not merely that a claim is advanced, but the 
 grounds upon which that claim is based, t. e. claimant's title. In the absence of 
 such ioforniation defendant is left to conjecture the probable grounds of claim, 
 Jgainst some of which he at great expense prepares to defend himself, but which 
 at the trial may turn out to be wholly imaginary. This of itself would be a 
 hardship upon a defendant in any action, but in ejectment ivhere there are oq 
 
 E leadings would be a positive injustice. It is however only necessary to state 
 uw the party claims, as by conveyance, descent, Ac, and from whom without 
 
 |f 1^ - 
 
 i . 
 
512 
 
 SupIi notice 
 limited to 
 one (iliiim 
 of title. 
 
 EJECTMENT, [s. 5 
 
 Claimant's title, stating it with reasonable certainty, (c) 
 19 Vic, c. 43, 8. 222. 
 
 S. ((f) Such notice shall not contain more than one mode 
 in which title is set up, without leave of the Court or a 
 Judge, (c) and at the trial the Claimant shall be confined to 
 
 exhibitinjsf the whole chain of title: section 6, and notes. Claimant is confined to 
 
 })roof of tlio title stated in his notice : section 6 of this act. It was at onu time 
 leld that a judRC at nisi priiis had no power to amend a notice of title: Mmyan 
 it al V. Cook et nl, 18 U. C. Q. B. 599. But it is now otherwise held : Chwhe\i v. 
 Ransom, 17 U.C, C.P, 629 ; Parsons v. Ferrilnj, 26 U. C. Q.B. 380. Where iilaintitf 
 claimed the land as part of lot 6, and defendant defended first as part of lot 5, 
 and no notices of title were attached to the writ, it was held that plaintiff was 
 not bound to prove title to lot 6: Cascadcn v. Conway, 17 U. C. Q. B. 5'J8. 
 
 (c) Though the notice to be annexed to the writ may be very general in its 
 terms, it must be neither vague nor obscure. A compliance with the spirit nnd 
 intention of the section must bo made. Defendant may if necessary have a;, 
 ord"' for particulars: Watson et al v. Braver, 4 Prac. U. 202. A plaintiff in 
 ejectment having under the old law opened his case as heir-at-law of tlie |)at- 
 entee, was not allowed to change his ground and show himself entitled under 
 the statute of limitations; MeKinley v. Bowbcer, 11 U. C. Q. B. 86. So whero 
 since this act the plaintiff claimed as devisee of F. and defendant under aslierilf's 
 deed of F's lands, it was held that plaintiff could not in answer rely upon tlie 
 statute of limitations: Fields v. Livingston et al, 17 U. C. C. P. 15, So where plain- 
 tiff claimed by direct chain from the patentee of the crown, and defendant under a 
 lease, it was held that plaintiff could not in answer rely upon a forfeiture of the 
 lease, not having set out the forfeiture in his notice of title: Pdtigrew v. Dot/U. 
 17 U, C. C, P. 34 ; affirmed in appeal, lb. 459. This doctrine applies to a idaintift' 
 claiming to avoid his lease on the ground of infancy : Hartshorn v. Eark\), 
 19 U. C. C. P. 139. It is the duty of the judge at the trial to prevent tlie 
 plaintiff in reply setting up a case which he did not set up at first as part of his 
 case : Orscr v. Vernon, 14 U. C. C. P. 573. But an objection that the title relied 
 on is not the same as that mentioned in the notice, will not be allowed after the 
 trial : Penlington v, Brownlee, 28 U. C. Q. B. 18ft, Interrogatories referring to the 
 defence will not be allowed in an action of ejectment: West v. Holmes, 3 U. C. 1..J. 
 72 ; but see Phillpotts v. Harrison, 4 U, C, L. J. 86, As to interrogatories refer- 
 ring to plaintiff's title in a personal action : see Finney v, Forwood et al, L. R. 1 Ex. 
 6 ; The Derby Commercial Bank, Limited, v. Lumsden et al, L. R. 5 C. P. 107; see 
 further note q to section 190 of C. L. P. Act. Qncere. May interrogatories be 
 administered in ejectment now that separate provision is ma^e for the action and 
 no provision for administering interrogatories : see note a to section 1. 
 
 (d) Taken from latter part of C. L. P. Act, 1856, section 222, which in that act 
 was new and original. 
 
 (e) Claimant may set up any number of conveyances from the grantee of the 
 crown of respective portions of land claimed, such being but one mode of set- 
 ting up title : Grimshaw v. White et al, 12 U.C. C.P. 521. Where plaintiff, an execu- 
 trix, claimed title by virtue of " a mortgage made by the defendant," held that 
 she was not restrictecl to proof of a mortgage to herself, but might show one to her 
 testator : Skeahon v. Whelan, 24 U. C. Q. B. 1 74. Defendant applied ex parte for 
 leave to state in the notice of his title required by this section not only a paper 
 title from the crown, through various parties to himself, but also a possessory 
 title by length of possession in himself and others, through whom he cloimed, 
 
 
[8.5. 
 
 lertainty. (c) 
 
 lan oDe mode 
 B Court or a 
 le confined to 
 
 6,] 
 
 SERVICE or WRIT. 
 
 A18 
 
 it is confined to 
 'as at one time 
 f title; Moyym 
 eld : Cliivlxeji v. 
 Where i)liiiiilitf 
 s pnrt of lot 5, 
 at i>l(iintitT was 
 i. B. 508. 
 
 y general in ii- 
 h the si)ivit nnd 
 ceasarj' liave ni. 
 A jjlainliff in 
 ;-law of the pat- 
 ,f entitled under 
 . 86. So wIkto 
 
 under a sheriff's 
 jr rely upon the 
 
 So where plain- 
 jefendant under a 
 1 forfeiture of tlie 
 'dt'igrew v. Doylf. 
 )lies to a plaintitf 
 nhorn v. Earkij, 
 to prevent tlie 
 rat as part of liis 
 
 It the title relied 
 
 illowed after tlie 
 
 8 referring to the 
 •/;««, 3U.C.L.J. 
 
 •rogatories refer- 
 ee al, L. R. 1 Ex. 
 5 C. P. 107; see 
 
 nterrogatories be 
 
 or the action and 
 
 tion 1. 
 
 which in that act 
 
 le grantee of the 
 one mode of set- 
 laintifT. an execu- 
 idant," held that 
 t show one to her 
 plied ex parte for 
 not only a paper 
 also a possessory 
 ■hom he claimed, 
 
 proof of the title set up in the notice; (/) but the Claimant 
 shall not be required to set out in such notice the date or 
 particular content of any Letter Patent, Deed, Will or other 
 iDstrument or writing, which shows or supports his title, or the 
 date of any marriage or death, unless it be specially directed 
 by order of the Court or a Judge, (j) 19 Vic. c. 43, s. 222. 
 
 SERVICE, 
 
 0. (h) The Writ shall be served in the same manner as a service of 
 
 Writ 
 
 declaration in Ejectment was formerly served, (t) or in such 
 
 and to set up in his defence both of said modes of title. The application was 
 founded upon an affidavit of the defendant that he could establish a good posses- 
 sory title for over twenty years through the person from whom deponent pur- 
 chased ; that he could also establish a good paper title to the same land from the 
 cmvn, through various persons to himself, deponent ; that it would tend to the 
 accomplishment of justice if ho should be allowed to state in the notice required 
 to be tiled with his appearance both of the said modes of making title " he being 
 desirous of establishing a paper title, but lest be should fail in his defence from 
 bein^ unable to procure the witnesses necessary to prove all such paper title, he 
 desires to set up also his title by possession." An order was made absolute in 
 the first instance : Todd v. Cann et al, 2 U. C. L. J. 232. per Burns, J. No amend- 
 ment can be allowed so as to enable a claimant to set up grounds of claim other 
 than such as are specified ia his notice : Morgan et <w v. Cook et al, 18 U. C. 
 Q. B. 699. 
 
 (/) But still is, subject to what is stated in note e to section 4, at liberty by 
 any means in his power to defeat the title set up by his opponent : Canada Com- 
 pany y. ir«i>, 1 U. C. C. P. 841. 
 
 ig) It is only necessary to state how the party claims, as by conveyance, des- 
 cent, &c., and from whom, without exhibiting the whole chain of title: Coltman 
 tinh. Broien, 16 U. C. Q. B. 133. But in ejectment for breach of covenant con- 
 talned in a lease, the particular covenant and the particulars of the breacli should 
 be specified in general terms : Kenny et al v. Sluiughnessy, 8 U. C. L. J. 29 ; see 
 also Doe d. Birch v. Fhillipt, 6 T. R. 697. 
 
 (A) Taken from C. L. P. Act 1866, section 223 ; the origin of which was Eng. 
 Stat, 15 <t 16 Vic. cap. 76, s. 170, Founded upon the first report of the Commoa 
 Law Commissioners, section 92. 
 
 (i) It is enacted that the writ shall be served in the same manner as a declaration 
 in (jcctment was formerly served. This provision is similar to tliat of repealed Stat. 
 U (t 15 Vic. cap. 114, s. 2, which enacted that the writ should be served " in the 
 same manner as a declaration in ejectment is at present served." Of the section 
 here annotated it may be said, as has been said of the repealed enactment, that a 
 good deal of diflSculty will and must inevitably arise upon so loose an expression 
 as that already quoted: Riddell v. Briar, 2 Cliam. R. 201, per Burns, J. The 
 repealed statute declared that the writ should be served " in the same manner" 
 as the " declaration," not "declaration and notice," the latter of which under the 
 former practice required ei^anation at the time of service. It was consequently 
 beld under Stat. 14 A 16 Vic. cap. 114, that service of the writ without explana- 
 tion of its contents was sufficient: Riddell v. Briar, 2 Cham. R. 201. The writ 
 itself now says all that is necessary to be said by way of explanation : FothergUl 
 T, Whitt, 14 L. T. N.S. 768 ; see also Edwardi y. Qrifith, 15 C.B. 397. It may be 
 33 
 
 .:!;11 
 
 
 
 
 
 ■-'■ rt. 
 
ill 
 
 
 614 
 
 EJECTMENT. 
 
 manner as the Court or a Judge may order. 
 8. 223. 
 
 [8.0. 
 
 10 Vic. c. 43. 
 
 .if 
 
 serveil during the long vncntion between Ist July nnd 21at August ; Dne d Shnrin 
 V. Roe, a CImni. II. lOrt. The words "in the same manner" mean that service 
 upon a wife, child, servant, agent, or other person, whieli, in the case of a (Icclurn- 
 tion and notice, would have been good service, shall under this act be a surtitjent 
 service of tho writ, Tiius : 
 
 At to a sole defendant. 
 
 1. Personal service. The object of service in any case is to notify defeiidiint uf 
 intended proceedings against him. Personal service when it can be eHk-tvd is 
 always to bo preferred, and is obviously tho mo.st satisfactory mode of bririi;in'r 
 the proceeding to the notice of tlie party. Of tliis fact it is always neci's^ni v tii 
 satiijfy the court witii a view to ulterior proceedings. In ejectment n proiiiiiieni 
 feature of personal servi-je is, that it will be good though not effected upon th,. 
 premises sought to bo recovered: Savage v. Dent, 2 Str. I(i64; Doe d Utunelly, 
 
 Woodroffe. 7 Dowl. P. C. 494. There may be personal service, though the writ 
 be not placed in the corporal po.ssession of defendant. Thus if with full notiee of 
 the intention of tho party trying to effect the service defendant designedly thwart 
 him by refusing to have anything to do with the writ or otiierwise misemKliict 
 irmigclf with a similiir intent: Jtataal v. Wed// wood, Barnes. 174; U'lunhiiw d. 
 Askton v. Toogood, lb. 18.5; Short d Elmes v. King, lb 188; Fenn d knir/hin x. 
 Dean, lb. 192; Doe d. Vi.iger v. Hoe. 2 Dowl. P. C. 449; Doe d. Friih v. Rof, 
 3 Dowl. P. C. 669 ; Doe d Ross v. Roe, 7 Scott, fe46 ; Doe d. Hunter v. lU. 
 r» Dowl. P. C. CSa ; Doe d Colson v. Roe. 6 Dowl. P. C. 765 ; Doe d Lninulf.t v. 
 Roc, 7 M. & W. 439; Doe d. Roberts v. Roe, 6 Scott N. U. 833; Doe d Chfim v, 
 Roe, 1 Jar. 701 ; Doe d. llellier v. Roe, lb 800; Doe d Mann v. A'o», 11 M. A W. 
 77 ; Doe d. llopeet al v. Roe. 3 C. B. 770. Where personal service has been etikti'd 
 and default is made in appearance, judgment may be signed upon filing the writ 
 together with an affidavit of service: U. G. pr. 92. But if the service etridd 
 do not amount to personal service, then before signing judgment, leave must be 
 obtained by a rule of court or judge's order: lb This requirement is amiioi^oiis 
 to the old practice of moving for judgment against the casual ejector. Wlienevcr 
 tho service was personal the rule for judgment was absolute, in the fir.st iiistanoi'. 
 In other cases tho rule was nisi only. It might be a question under this section 
 whether a service not personal must not be authorized by the court or a jiHl!.'e 
 before such service is made, in which case the application should be supported l»v 
 affidavit of inability to effect personal service. There are many analogous rules of 
 practice. Had the act read " a judge shall approve and by order contirni," there 
 would be no doubt that the order intended ought to be made after service, fur- 
 ther as to what constitutes personal service see note v to section 16, C. L. i'. Act. 
 
 2. Service upon the wife. Before moving for an order or rule for judgment it 
 will be necessary to show some service which if not personal would be considereJ 
 sufficient in the case of an ejectment under the old practice. Service upon the 
 wife of defendant if living with him will be sufficient. And if the wife be living 
 with her husband at tho time of service it is imtpaterial whether she reside upon 
 the premises sought to be recovered or elsewhere, the only test being her resi- 
 dence with her husband. Service under such circumstances raises a very strong 
 presumption that the husband has been made acquainted with the proceeding. 
 In these cases the fact of such residence and place of service should be made to 
 appear on affidavit : Doe d Morland y. Bayliss, 6 T. R. 766 ; Ooodright d \Ui- 
 dington v. Thrmtout, 2 W. Bl. 800 ; Jenny d. Preston et al v. Cults, 1 B. 4 P. N. R. 
 308 ; Dne d. Wingfield v. Roe, 1 Dowl. P. C. 693 ; Doe d. Boullott v. Roe. 1 Dowl. 
 r. C. 463 ; Doe d Marquess of Bath v. Roe. lb 692 ; Doe d Grove v. Roe, 8 Jur. 
 338 ; Doe d. Orange v. Roe, 1 Dowl. N.S. 274 ; Doe d. Croley v. Roe, 2 Dovri. 
 
 V. /;-, 
 
 in j)()s. 
 « tciniii 
 
 mnna^'ij 
 An,n 
 on a for 
 cient : 
 '■oniniit 
 'hen (in 
 brotrii 
 
 lunatic, 
 
 »ervi( 
 
8. 0] 
 
 SERVICE OF WRIT. 
 
 615 
 
 ,ifv clcfundrtnt (if 
 in' be otti'i'tfd is 
 io<k' of l)i'iii:;iii;' 
 \ys neei'ssai y to 
 eiit promiiRMit 
 ffected \\\Mn tlio 
 Voe d iJiiiiifll V. 
 thou<;li till' writ 
 vitli full luilioe of 
 lcsi<j;nedly thwart 
 ■wise niisi'oiiduct 
 
 174; B'i;l!<h!lii> d. 
 
 ^eiin d Knight > v. 
 
 d. Friik V. lio', 
 :. Hunter v. /.'"«, 
 Joe d Loicmits v. 
 
 I)of. d Clif'nn V. 
 . Ro!. 11 M. ikW. 
 1 has bi'OH I'fi'ucti'd 
 )on tiling the writ 
 le st'i'vice t'trt-dtil 
 
 ut, leave must bs 
 iment is amdogoiH 
 
 jCCtor. WIUMK'VIT 
 
 the first instance 
 under this section 
 e court or a ]w\^ 
 Id be suiipiivted liv 
 ■nnfllogousrtilesof 
 ler contirni," tla'te 
 if(er service. Fur- 
 nl6,C.L.P.Act. 
 
 lie for judgment it 
 ould be CDiisidereJ 
 
 Service uptm t''*' 
 , the wife be living 
 ler she reside upoa 
 est being her m- 
 ftises a very stron? 
 th the proceeding. 
 
 should be made to 
 Qoodri,)ht d IM- 
 
 lott V. lioe. 7 I>»;'' 
 l?ror« V. Rot, 8 Jur. 
 ty V. Rot, 2 D"«'' 
 
 VS. 314 ; Dot d. Rnyh ft nl v. Roe, 4 C. B. 2,16 ; ZJoe v. Roe, 17 L. J. Ex. 17B. 
 If tlie wiff, with n full knowledge of the intention of the party to servo her, of 
 her own wrong nnd by her own miseonduet vrilfully prevent the service from 
 Ixiii;' c'liiipli'tc'il, the service notwithstanding may be held sutHcdent: see Ooe d. 
 />ri; V, li'i'< Barnes, 178; iltlea d Farmer v. Thruxtotif. [b 18(1; Doe d Cour- 
 Anrpe V. Roe, 2 Dowl. P. C. 441 ; Doed. Oeorge v. Roe. '6 Dowl. I'. C. 541 ; Doe d. 
 y.ah V. Roc. 8 Dowl. P. C. 305. Indeed service upon a stranger on the premises 
 witli ft subsequent acknowledgment from the wife that the papers had come to her 
 liaiiils, lias been held sufficient: Doe d. The Governors of the Greycoat Honpi/itl 
 V. li'f. 7 M. <k O. 5S7. But service on a stranger found upon the premises and 
 nnt slidwii to be a resident there is of itself insufficient: Doe d Stori/ v. Roe, 
 ^ M. it (J. 64,'j. Service upon the widow of defendant, he being dead in the house 
 at the time, has been held to be Insufficient: Doe d Crouch v. Roe, 13 L. J. (i. B. 
 8ii. Ildwever, there may be circumstances under which service upon a widow 
 would be clearly sufficient: see Voe d. Famphilon v. Roe, 1 iJowl. N.8, 186. 
 
 3. Service on a son daughter, or other member of the familif. This mode of ser- 
 viii' may be liidd sufficient, provided it can be shown by admission of the tenant 
 or oiliinvise that the paper served was served on the premises and actually 
 rcuhed defendant : see Doe d. Cockhurn v Roe, 1 Dowl. 1'. C. 602 ; IJoe a. 
 l'r<iihtiK,e v. Roe. 4 Dowl. P. C. 385 ; Doe d. Agar v. Roe. « Wowl. P. C, 624 ; Doe 
 
 1 Fniclfr v. Rof, 11 Jur. :{09; Doe d. Eaton v. Roe.. 7 Scott. 124; Doe d Overy 
 •{.ll'tf. 1 1). A L. 8ii3; D'je d. Grippe v. Walker. 7 Jur. 745; Doe d. llarrw v. 
 h'. 1 Ddvvl. N.S. 71)4; Doe d. Jenkins v. Roe. 8 Jur. 39; Doe d. Gihhard v. Roe, 
 .) M. it <"'. H7 ; Itoe d Fattiaon v. Roe. 10 Jur. 34 ; Doe d Firncotnbe e( nl v. Roe, 
 M .Iiir. r)-25; Doed Fowler v. Roe, H Jur. 309; Doe d Chiffi-g v. Rne, 9 Dowl. 
 P.C. lilt); Doe d Ginger v. Ror, lb. 33(1; Voe d Threader v. R^e, 1 Dowl. N.S. 
 'irtl; Diip d Morgan v. Roe, lb. 643; Voe d. Taylor v. Cnnte-^, 8 Jur. 2(.i; Voe 
 d A'lv/fv. Roe 4 C. B. 258; Voe d. Gray v. Roe, 6 O.S. 4S3; Doe d. Hunter et 
 a/v.W, 3 U. C. Q. B. 127. 
 
 4, Sni'ice on a scriiani, agent, clerk, or other emfiloj/ee This mode of service 
 if etlVttid I'll the premises, and if there be reason to l>tdieve that the defendant 
 !mil uuliir thereof, may be held sufficient: see Doe d liaring v. Roe, 6 Dowl. P. 
 C.4:ii); Ihc d Fisher v. Roe. 2 Dowl. N.S. 225; D e d Bower v. Roe, lb 923; 
 lk>,l ilHilklon V. Roe, 1 D. di L. 149; Doe d. Reodv. Roe. 1 M. & W. (533; Doe 
 (f Lnrd Duinrhen v. Roe, 2 M. A W. 374 ; Anon 6 Jur. 371 ; Doc d. Dub'er v. Roe, 
 
 2 Dowl. N.S. 33;>; Doe d. llarleigh v. Roe, 11 Jur. 18; Doe d Rei/nolds v. Roe, 
 IC. li. 711 . Doe d Wninon v. Roe, 6 C. B. 521. Service upon a person in appa- 
 rent [iiissi-ssion, who professed to be agent of the tenant, who was abroad, without 
 ciiouiiistiiiices showing facts whence agency might be inferred, was held to bo 
 insulliiifnt; Doc d Nottiige v. Roe, \ Dow'l. N.S. 750; see also Doe d Johnson 
 V. R"f. VI L, J. Q. B. 97. If after the decease of defendant a servant, itc, remain 
 in possession, such servant, if he refuse to give up possession, may be ejected as 
 »ti'n«nt in jiossesBion: Doe d Atki'is v. Roe. 2 Chit. R. 179. Service on the 
 mnnagiiiff clerk of the tennnt, who was an attorney, was held to be insufficient: 
 Atijii 1 ,)ur. 1105; but see Doe d Bower v. Roe. 2 Dowl. N.S. 923. Service 
 on a tenant of part of the premises, who was not named in the writ, held insuffi- 
 cient: Ttip Queen v. Benson. 1 Prac. R. 221. In the case of a lunatic having a 
 committee, service should be made on such committee: Axon holt. 401; if not, 
 then on himself, the lunatic: Doe d Gibbard v. Roe, 9 Dowl. P. C. 844; Due d. 
 Brotniv. Hoe. 6 Dowl. P. C. 27"; or person having the care or custody of the 
 
 lunatic, though not appointed by a regular committee: Due d v. Roe. 7 Jur. 
 
 '25; Doe v. Roe, B arnes, 19m; Voe d Lord Aylesbury v. Roc. 2 Chit. R. 183. 
 
 A* to several defendants. 
 Service upon one of two or more joint tenants in possession is sufficient: Voe 
 i- Clotltw V. Roe, 6 Dowl. P. C. 291 ; Voe d. Ooerlon v. Roe, 9 Dowl. P, U. 1039; 
 
 
 :ik 
 
 l5,l 
 
 (I 
 
 ■' M 
 
 i|i 
 
 ' '?« 
 
 m^ 
 
 \ ' 
 
510 
 
 IJECTMKNT. 
 
 [8.7. 
 
 til. 
 
 y, (J) In case of a vacant possc.xeion, service may be bj 
 •iou vacant, posting a copy of the writ and notice upon the door of the 
 > dwelling-house or other connplcnons part of the property, (k) 
 
 19 Vic. c. 43, 8, 228. 
 
 Doe d. Worthay v. Rot, 10 Jur. 084; Doe d. Bennel v. Roe, 7 C. B. 127, So 
 service was allowed as to thr<>o defendants in possosHion, though made on one of 
 the three only, and though it was not sworn that there was a Joint tenancy: R\jhi 
 V. Wrong, 2 Clrit. Rep. 17K; but such service, thongh sufficient for a rule niti for 
 judgment, might not, it is apprehended, be sufficient for a rule absolute in Hu 
 first instance: Doe d. Field t. Roe, lb. 174. Service upon one of TOveral joint 
 tenants, when the writ is directed to that one only, will not, it is appreiicnded, 
 in any event have effect afjninst the others not named ; Doe d. Brabi/ v. Roi, 
 IOC. B. ft63. Where there were three scTeral tenants, it was held that the cofiy^( 
 the notice of ejectment might be directed to each individual tenant for whom it was 
 intended: Doe v. Roe, 8 Jur. 360. If there be nothing to show a joint tenancy of 
 several persons in possession, nil should bo sowed : see Doe d. Lord Darlington v. 
 Coek el al, 4 B. A C. 2B9 ; Doe d. Bell v. Roe, 3 0.8. 64. But if the service be made 
 on an original tenant, who appears, he connot afterwards object that his subtenantj 
 are i possession and have not been served: Roe r. Wiggi, 2 B. A P. N. R. 330, 
 It hoH been held that where lodgers cannot be served, service on the keeper of the 
 house at the house is sufficient for a rule niei for judgment: Doe d. Threader y. Rot, 
 1 Dowl. N.S. 261. If sei'vice bo perfect as to two or three defendonts, judgment 
 may be obtained as to such as have been regulorly served : Doe d. murphy v, 
 Moore et al, 2 Chit. Rap. 176. In proceedings against railway and other public 
 companies, service upon the president, secretary, or other public officer, ia in gt: I 
 eral sufficient. This more particularly if there bo a provision in the statute incorpo- 
 rating the company that papers shall be so served : Doe d Bromley v. Roe, 8 Bowl, 
 P. C. 868; Doe d. Bayei v. Roe, 16 M. A W. 98; Doe d. Fither v. Roe, 2 Dowl. 
 N.S. 226; see further Doe d. Weeks v. Roe, 6 Dowl. P. C. 405; Dot d. Fiah- 
 mongert' Co. v. Roe, 2 Dowl. N.S. 689; Doe d. Kireehner v. Roe, 7 Dowl. P. C. 
 ■97; Doe d. Dickenav. Roe, lb. 121; Doe d. Smith v. Roe, 8 Dowl. P. C. 609; 
 
 Doe d. V. Roe, 1 D. <fc L. 873. Service in cases not provided for by any pro- 
 
 .cedent may be made "in such manner as the court or judge shall order:" as to 
 -which see Doe d. Pope v. Roe, 7 M. A G. 602 ; Doe d. Dovaston v. Roe, B Scott, .N'. 
 R. 174; Doe d. HaggeU v. Roe, 6 Jur. 950. Where a tenant underlet part of tin 
 ^premises and deserted the remainder, and his under-tenants were served, it was 
 held that the lessor of the plaintiff was entitled to judgment as to the part of the 
 premises occupied, and to take possession of the remainder as upon a vacant pos- 
 session: Doe d Uenton v. Roe, 1 D. A L. 657. It is unnecessary for thepcrsoo 
 -serving a writ of sumirons in ejectment to make the endorsement of such service j 
 within three days ns required by section 19 of the C. L. P. Act: Leesony. Ilij- 
 gint, 4 Prac. R . 340 ; but see Vandeleur v. Smith, 3 Ir. C. L. R. 86. — ' 
 
 (J) Taken from 0. L. P. Act, 1856, section 223, the origin of which was Eog' j 
 Stat. 16 A 16 Vic. cap. 76, s. 170. Founded upon the first report of tiie Comraun j 
 Law Commissioners, section 92. 
 
 (*) A party who proceeds on a vacant possession should perform cverythiiig 
 he does in such a case more regularly than in the case of a contested possession: 
 Anon. 2 Chit. Rep. 188. If the premises have been abandoned, proceedings ni«yj 
 be had as on a vacant possession : Doe d. Laundy y. Roe, 12 0. B. 461 ; but there I 
 may in such a case be circumstances under which the proceedings ouglit to be ul 
 on a contested possession: lb. It is not declared in what manner the writ shtllf 
 be directed in proceeding on a vacant possession. A writ directed to "thil 
 > assignees aadfcrsonal representatives of S. B. deceased" (the last occupier) baj 
 
8] 
 
 AI'l'KARANCR AND NOTICE OF TITLE. 
 
 617 
 
 Al'I'EAflAN'CB. 
 
 ^. (/) The porsoDH Darned an DofendaDts in tlio Writ, or wiim tenant 
 any of thoin, may appear within the time appointed; (m) aiuinnticcto 
 and with the appearance Bhall file a notice addressed to the ujionK^vcn. 
 Cluiiiiiint, slating that besideA denying the titl' < ',' the Claim- 
 ant, the purty asserts title in himself, or in some other person 
 (etaiing who), under whom he oluitns, and setting forth the 
 tDoJe in which such title is claimed, in like manner, to the 
 game extent, and subject to the same conditions, rules and 
 restrictions as are hereinbefore set forth in respect to the 
 notice of a Claimant's title, (n) and the giving proof thereof 
 ai the trial. 19 Vic. c. 43, s. ^24. 
 
 been held regular: Harrington v. IJ//tham, ataiffnee.s of, 2 C. L. Rep. 1033; 28 L. 
 A Eq. 443. And per cur. "tlie writ does very well in its present form, as nobody 
 IstlarBby mnde liable for costs." Service of summons by postinjj samo on a con- 
 tpicuous purt of the dwellin;;- house deemed i^ood service, the tenant being resident 
 toruad: Lord CiifJen v. The Casual Ejector. Sm. dc Bat. CI. 
 
 (/) Taken from C. L. V. Act, 18SS, sectiob 224, the first part of which was 
 tikcn froui Eng. Stat. 15 & Iti, cap. 16, s. 171. Founded upon the first report of 
 the Cummon Law Commissioners, section 93, and the remainder of it original. 
 
 (m) I. «. An appearance moy be entered as a matter of course " by the persons 
 named in the writ." Any person not named in the writ, if in possession, may apply 
 to be permitted to defend under the ne.\t succt eding section. The time limited for 
 appearance is sixt en days: section 3, Form No. 1, The appearance serves the 
 urpose of a plea, and is the defence to the action, and the person appearing may 
 imlt his defence to part of the premises named in the writ; section 12. land- 
 lords may, in right of their tenants, appear under section 9 pursuant to section 
 11. It was in one ease held that to entitle the tenant to move against the declaro- 
 tlon, notice, or otber proceedings under the old practice, it was necessary for him 
 to appear to the action, because without "appearance there is no tocua standi in 
 the court:" Doe d. Witliamion et al v. Roe, 8 D. ib L. 828; see also Doe d Simp- 
 m V, Roe, 6 Dowl. P. C. 4fi9. Security for co»t» cannot be obtained before 
 ippearanco: C owe et al v. McGuire, 3 U. C. L. J. 206. 
 
 (n) Defendant appeared to a summons in ejectment, but by mistake the plain- 
 tiflTs name in the appearance was written " Siimuel" instead of "Thomas," and 
 thereupon judgment was signed; the judgment was set aside on an affidavit of 
 merits and on payment of costs: Street v. McDonell, 2 Prac. II. 66. Where 
 defendant either omits to file with his appearance the notice required by this sec- 
 tion or files an irregular one, he will be allowed to amend on poyment of costs: 
 A'ane v. Kane, 2 U. C. L. J. 213; Truit and Loan Co. v. Ebaon et al, 3 U. C. 
 L.J, 69, Th'wtpton v. HWcA. 76.133. If plaintiff refuse to state or receive the 
 iiflount of the costs of the amendment, then amendment may be made prior to 
 payment of costs: Duplt v. Lawder, 4 U. C. L. J. 137. The defendant is con- 
 fined to proof of the title claimed in his notice, but is at liberty to defeat, and 
 that without going into his title, the title set up by plaintiff: Canadj Company 
 V. Weir, 7 U. C. 0. P. 841. Indeed the mere filing of an appearance without any 
 Dutice of defence puts the plaintiff to proof of title: Fairman v. White, 24 U. C. 
 Q. U. 123; Shore et <il v. SleCabe et al, 10 U. C. C. P. 26. But if plaintiff proves 
 'lis title, defendant, without a notice of title, will be debarred from going into his. 
 
 111 
 
 
 
 'i»; 
 
 1 1- 
 
 
 
 
 
 'K 
 
518 
 
 EJECTMENT. 
 
 [S 9. 
 
 \fj ' '• 
 
 Landionis^^ 9^ (^^ Any otlier person not named in the Writ, may, by 
 leave of the Court or a Judge, appear and defend, on filing an 
 
 defence: Fb HI. The omission of the words "besides denying the title of the plnjn. 
 tiff," in tlie notice of defence, does not entitle plaintiff to recover witlmut proof of the 
 title stated in his notice: lb 30. Defendant, by the simple appearance, may show 
 title out of the plaintiff, but not in himself, defendant, or any one under wiioni he 
 claims: Burke v, linttle. 17 U. C. C. P. 478. A jud{>e in chambers has no power to 
 ^ order a defendant to file a notice of title, and in default thereof that plaintiff may 
 f sign judgment: Fninnnn v. While, 24 U. C. Q. B. 123. It was at one tiiui held in 
 the Quje'n's Bench that if defendant, besides denying plaintiffs title, claimed title 
 under the plaintiff, tiiat plaintiff was thereby relieved from proof of title: Brandon 
 V. Cawthorne, lii U.C. Q.B. 368 ; Cartwright et al v. McPheraon, 20 U. C. Q. B. 251 ' 
 but the Common Pleas were of a contrary opinion : Thompson et al v. Fakontr'. 
 18 U.C. C. P. 78 ; see also Colbtt et al v. ^Vall, 12 U.C. C. P. 93. Finally the cour 
 of Queen's Bench became so constituted that each of its members had in the 
 * Common Pleas joined in a construction of the statute opposed to that previously 
 adopted in the Queen's Bench, and in order to prevent differences of decision be- 
 tween the two courts on this point expressly overruled Brandon v. Cauiihorne and 
 CuMwright et al v. JUcPheraon : McGee v. McLatighlin, 23 U. C. Q. B. 90. The 
 rule, therefore, in both courts now is that a simple appearance without notice 
 puts plaintiff to proof of title, that plaintiff is not relieve<l from such proof Ly 
 reason of any thing contained in the defendant's notice of title, and that unless 
 defendant file a notice of title in the event of plaintiff proving his title, defendant 
 will be precluded from going into a tlefence of his title. But defendant having 
 put plaintiff to proof of title and taken exceptions thereto, cannot then set up 
 a tenancy under him: Wilson v. Baird, 19 U. C. C. P. 98. Defendant nliowiii;,' 
 plaintiff to prove title at the trial, without, however, cross-examinii:g his wit- 
 nesses or otherwise taking objection to the title proved, is at liberty to show title 
 under the plaintiff as tenant for years : Ilartithom v. Earleii, lb VVhere in eji'ct- 
 ment the pliintiff claimed as assisnee of a mortgage made by defendant, and 
 defendant by his notice of title claimed under a deeil made by the mortgnsiei', it 
 was held that defendant might show he was an infant when he executed the 
 mortgage: Grace v. Whitehead, 16 U. C. Q B. 50 Where defendant in bis notice 
 claimed the whole premises under a conveyance from a third party, lie was not 
 allowed at the trial to set up that he was tenant in common with the plaiiitiftand 
 insist upon proof of ouster: HcCalluvi v. Boswell, 15 U. C. Q.B. 843; see also 
 Leech v. Leech H al, 24 U. C. Q. B. 321. 
 
 (0) Taken from C. L. P. A.ct, 1856, section 225, the origin of which was En^ 
 Stat. 15 (fe 16 Vic. cap. 76, s. 172. Founded upon the first report of the Common 
 Law Commissioners, section 94. 
 
 The principle of this section is not new. It is the same as involved in 11 fee. II. 
 cap. 1 9, s. 13, the language of which is as follows : " That it shall and may be lawfal 
 for the court where such ejectment (i. e against a tenant i" possession, his landlurd 
 not being an occupier) shall be brought to suffer the landlord or landlords to 
 make him, her, or themselves, defendant or defendants, by joining with thetenniit 
 or tenants to whom such declaration in ejectment shall be delivered, in case he 
 or they shall appear ; but in case such tenant or tenants shall refuse or neglect 
 to appear, judgment shall be signed against the casual ejector for want of such 
 appearance; but if the landlord or landlords of any part of the lands, tenements, 
 or hereditaments fop which such ejectment was brought, shall desire to appear by 
 himself or themselves, nnd consent to enter into the like rule that by the course 
 
 ;of the court the tenant in possession, in case ho or she had appeared, or ought to 
 have done ; then the court where such ejectment shall bo brought shall and may 
 
 ^permit such landlord or landlords so to do, and to order a stay of execution uiica 
 
g, 9 ] APPEARANCE BY PERSONS NOT NAMED IN THE WRIT. 
 
 619 
 
 affidavit shewing that he is Id possession of the land either by 
 Bimself or his tenant. 19 Vic. c. 43, s. 225. 
 
 snch judgment against the casual ojector, until they ^ihall make further ortier 
 therein." It was said by a learned judge that between this statute and the C. 
 I, R Act there is no difference, except that the latter gives to the court or a 
 ittd:;e powers wliich the former statute gives to the co'irt alone: liuller v Mure- 
 dith. 11 Ex. 93, per Parke, B. In the construction of the Stat, of Geo. II. it was 
 held that the word " landlord " extended to all persons claiming title consistent 
 with that of the occupant. Thus a mortgagee, thousjh out of possession : Doe d. 
 JiUiard V. Cooper, 8 T. R. 645 ; when interested in the result of the action : Doe 
 i Ptnnon v. Roe. 6 Bing. 613; an heir-at-law, though out of possession: Due d. 
 IliUei^iwade et al v. Roe 3 T. R. 783, n; a devisee in trust: Lovelock d NorriH v. 
 Paneasler. 4 T. R. 122. But a person claiming in opposition to the occupant's title 
 was c early not entitled to defend as landlord : Driver d Oxenden el al v. Lawrence, 
 2 W. Bl. 1259 ; Doe d Ilorttm v. Rhys. 2 Y. A J. 88 ; Doe d Mee et al v. Lilherland 
 ital. 4 A. <fe K. 784; Doe v. Challts 17 Q. B. 1«6. The affidavit should show the 
 intirest of the applicant: Croft v. LumUy. 4 Kl. & B. fi08; Web!<ter et al y. lions' 
 hirgh.Z U.O. L.J. 32; McDermmtv. Keeling. 7 U. C.L.J. 160. Where a defendant 
 was by mistake described as "landlord" in the consent rule, it was held tliat at 
 the trial he might show that a third party was tenant to the lessor of the plaintiff: 
 iw d. Fellowes et al v. A 'ford. 1 D. <fe L. 470. If a person made landlord has no 
 real interest in the premises, relief may be given to plaintiff: Doe d. Carr et nl v. 
 Jordan 4 Scott, 370. The time within which application for leave to appear should 
 be made by a landlord is sixteen days after service of the writ, and at least before 
 judgment for non-appearance It has been held that in the absence of collusion 
 between the plaintiflF and occupant, the court will not set aside a regular judg- 
 ment in order to let in a landlord who had not received any notice <>f the pro- 
 ceedini^s: Doe d. Thomson v. Roe, 4 Dowl. P. C. 115; see also Doe d. Ledger v. 
 'Roe 3 Taunt. 50fi ; Goodliile v. BadHlle. 4 Taunt. 820 ; Mercer v. B>tnd. 3 U. U. L.J. 
 I5i); but see Turley v. Williamson. 13 U 0. <-. P. 581. Where a landlord defrayed 
 the costs of an ejectment in the name of an illiterate peracm who gave a cognovit 
 and retnixif, the court set them aside: Doe d Locke v. Franklin, 7 Taunt. 9, 
 Where, owing to ignorance of the party or his attorney, judgment had beea 
 siijned, leave to defend was given upon terms. Doe d Pollen v. R e. W. W. 
 (tl). !ni. So where tiie attorney made affidavit that he had received instruc- 
 tinnsfor entering an appearance, which he neglected owing to matters personally 
 alt'ectini; himself : Doe d. Shaw v. Roe. 13 Price, 2G0; see als') Doe d Miillorkij et 
 III V. Roe, 11 A. «fe E. 333. So in other cases upon the merits and upon the terms 
 where the step was an advancement of justicn without much inconvenience to 
 jihuntiff, and especially whore no writ of posses.sion liad been executed : /^oe d, 
 ihn-k V. Roe, 2 C. <fe J. 682; Doe d. Tro'.gklon v. Roe 4 Burr. 1996; see also 
 DMii V. Piisser. 2 Str. 975. Where collusi<in can be shown, a landlord may bo 
 let in to defend even after a writ of possession executed : Doc d. Grocers' Co v, 
 H'x, 5 Taunt. 205 ; Hunter v. Keighileg el al, 3 U. C. L. J. 68. And whor.> a judg- 
 ment is set aside and an order made for possession to bo restored, thni orjer must 
 be obeyed under penalty of a contempt: Cirbett d. Cli/mcr v. Nickoiln. 2 L. M. A 
 P. 87; and if necessary a writ of restitution may issue: Doe d Whillington v. 
 H"rdg. 20 L. J. Q. B. 400. 
 
 llie possession intended is an actual not a leg.il possession merely: Thornpfon 
 V. Tomiikinsonel al. 11 Ex. 442; Whiticorth v. Hnviphries, H Jur. N.S. 231. Thus 
 it has been held that a tenant by elegit cannot be admitted to defend : Croft v. 
 Luinlfj/, 24 L. J. Kl. B. 78. Mu^h less is a person who has recovered a judgment 
 in ejectment but who has never issued a writ of possession nor taken possession of 
 tlie premises entitled to make application under this sectidn: Thompson v. Tom' 
 
 \ .V: 
 
 
 Mi »'1 
 
 1 ''^ 
 
 
 -) -. f. . 
 

 
 i^i' 
 
 ffi'h' ' 
 
 
 i^; 
 
 
 W)' - 
 
 
 
 1 1^ 
 
 i i 
 
 -J I . 
 
 'p. 
 
 «{i; 
 
 
 J'i*i»»*of- 10, ^p) AH ap{>earances (j) sball be entered and all sub- 
 
 floe appear- 
 
 kinton il al, 1 1 Ex. 442. But a sufficient prima faeU right of actual poaaession will 
 ■atisfv the <»urt. It is not desirable on interlocutory motions to decide questioDt 
 of title, "the court, when it decides upon the application of a landlord or other 
 person sworn to be in posseasioo, that he is eatitled to defend, does so without Bt 
 all deciding upon the rights of the parties : Croft v. Lumley, 4 El. ii B. 608 
 Thus in ejectment to recorer an opera house on the ground that the tenant ha. 
 committed a forfeiture, application waa made for leave to appear and defend the 
 action by a grantee from the lessee of a private box for a term of years, and it 
 was sworn that the applicant was " in possession of the box," the court granted 
 the leave without coming to any decision on the effect of the instrument under 
 which applicant claimed: lb. The intention of the statute is that whether t 
 landlord be in possession by his own personal and actual possession, or by that 
 of his tenant, he shall be allowed to come in and defend on satisfying the conrt 
 or a judge that he has the possession. There is no power to impose terms on the 
 applicant under such circumstances : Butler v. Merfdith, 1 1 Ex. 85, Parke, B. 
 dubitante. A person who swore she was in possession, and that defendant was 
 not when served with the summons, was allowed to appear, although the defendant 
 named in the writ had previously confessed judgment, upon which a writ of pos- 
 aession issued : Harrington v. Uarritigton, 8 U. C. L. J. 30. So where applicant 
 disclosed title and swore that he was in possession, though not named in the 
 writ: Wtbiiter tt al v. Hortburffh, lb. 32. So upon an affidavit of dufendant'i 
 attorney, "that since receiving instructions to defend for defendant, deponent 
 has discovered that one 0. M. is living on the west half of the land songlit 
 to be recovered in this action, and that said 0. M. claims under the same title 
 as defendant ; that deponent will not be able to communicate with s&id 0. M. to 
 enable him to obtain his affidavit within the time allowed for appearing to the 
 writ:" t. summons granted to show cause why 0. M. should not be allowed to 
 appearand defend, was afterwards made absolute: CariealUr v. WetitlU, C\\mu 
 bers, Oct. 22, 1866, JUS. per Burns, J. A person answering the description of land 
 lord according to the decided cases, is entitled as a matter of right to be let in to 
 defend : Butler v. Meredith, 11 £x. 86. So that in the case of a landlord residing 
 out of the jurisdiction, the conrt has no power to impose a condition that he bhall 
 give security for costs: Jb : but see Doe d. Hudson v. Jameion, 4 M. & Ry. il^' 
 But after judgment in ejectment he may be left to bring his action : Cameron it 
 al v. Murphy, 4 Prac. R. 132. As to modes of appearance see next section acd 
 notes thereto. 
 
 {p) Taken from C. L. P. Act, 1866, section 226, which in that statute was u 
 original enactment. 
 
 (q) Where a person not named in the writ has undfr section 9 obtnincd leave 
 to appear and defend, he mutt enter an appearance entitled in the action ngainst 
 the parties named in the writ as defendants, and forthwith give notice of euch 
 appearance to the plaintiff's attorney, or to the plaintiff if he oe suing in person: 
 II. G, pr. 9S. Ajier appearance and notice the person or persons admitted to 
 defend iiust be named in the issue book, nisi prius record, <&c. : Heron v. Elhou 
 tt al. 1 (J. C. L J. N.S. 166 ; and the appearance may be in lieu of the defendants 
 named in the writ or with them, according to the terms of the order allowing the 
 third party to appear and defend: Butler y. Meredith, II Ex.86. AV here the 
 landlord appeared in lieu of th« originol defendant, and by mistake the name of 
 the original defendant was retained in the record, whereby, under the old lawnf 
 evidence, the evidence of the original defendant was excluded, the court set asiJe 
 the record and verdict for irregulority: Petblet el al v. Lot fridge et al, 19 U.C 
 Q. B. 628. Where the judge's order did not express whether the landlord was to 
 defend in lieu of the defendants named in the writ or with them, nor did tliii 
 
 *■«■'' 
 
8. 11.] 
 
 APPEARANCE BT LANDLORD. 
 
 521 
 
 at statute wns oa 
 
 ])ruoeedin]g( 
 to be en- " 
 ti'reU. 
 
 sequent proceedings coDdacted in the Office from i/vhicli the •'»"''« '""' 
 Writ issued, (r) 19 Vic. o. 43, s. 226. 
 
 II. (s) Any person' appearing to defend aa landlord in wimtianffv 
 respect of property whereof he is in possession, in person or '""theyap^ 
 by his tenant, (t) shall state in his appearance that he '"^'^"^ 
 appears as landlord, (m) and he may set up any defence 
 which a landlord appearing in an Ejectment has heretofore 
 bsen allowed to set up, and no other. (?/«) 19 Vic. o. 43, 
 
 B, 227. I 
 
 .^ — ' — ■ 1 1.' 
 
 appear from his appeftrance or notice, and the defendants named in the writ did not 
 gppeiir, judgment was signed against them by default, the issue with the landlord 
 was carried down and tried, and a verdict rendered for the plaintiff on which 
 judgment was entered, and costs taxed against the landlord only, and a writ of 
 possession issued against all the defendands, field proceedings regular: llatkina 
 T, Cannon et al, 2 Prao. R. 834. Defendant being tenant was served with a writ 
 of ejectment, which he handed to his landlord, who took it to his attorney, and the 
 attorney, instead of getting leave to defend, entered an appearance in the nahie 
 of tlie original defendant without his authority. The court, at the instance of the 
 tenant, refused to interfere, leaving him to his remedy against thn landlord or 
 his attorney: Moran et al v. Sehermerhom, 2 Prac. R. 261. The entry of nppetar- 
 ance, thougli a plea, does not so far put the cause at issue as to prevent defendant 
 obtaining security for costs: Crowe et al v. MeGuire, '6 U. C. L. J. 205. In eject- 
 ment brought against A. &. B. by consent of plaintiff's attorney, an appearance 
 was entered for S. as landlord in lieu of the tenants. The notice of trial, however 
 was entitled as against A. & B. and notice was served on plaintiff's attorney, 
 warning him that this would be objected to. The nisi prius record contained no 
 appearance, but annexed to it was an appearance by S. as landlord. The plaintiff 
 was allowed to enter this on the record, and took a verdict, no one appearing for 
 the defence. On application to set aside the verdict, plaintiff objected that the 
 affidavits filed by defendant entitled as against S. alone were wrongly entitled, 
 and that no judge's order was shown entitling S. to defend. IleJd that plaintiff 
 was precluded u'om the last objection; but held that the notice of trial was 
 wrongly entitled : Jonet v. Sealon, 26 U. C. Q. B. 166. 
 (r) See note p to section 8. 
 
 (j) Taken from C. L. P. Act, 1856, section 227, the origin of which was Eng. 
 Stat. 15 it 16 Vic. cap. T6, s. 173. 
 
 [t] Instead of " in person or by his tenant," read in Eng. C. L. P. Act " only 
 by his tenant." A tenant served with a writ of ejectment is bound to notify his 
 landlord: section 60; and the landlaud may obtain leave to appear and defend 
 under section 9. As to form of appearance see rote q to section 10. 
 
 (m) The words " as landlord " should be written on the face of the appearance 
 paper. As to the word " landlord " see note o to section 9. 
 
 (tiu) The landlord may be allowed to appear either with his tenant or in ,lieu 
 of iiim ; see note q to section 10. In either case he is bound to set up no title 
 inconsistent with that of the tenant when the latter is the occupont: see note o 
 to Beetion 9. " "The theory and principle of a man out of possession defending as 
 landlord is this— that whereas ordinarily the only person who is competent to 
 defend is the person who is in possession of the premises, the law allows one who 
 is in possession by a tenant to oome in and defend as if he were kimaelf actually 
 
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 522 
 
 The (left'iice 
 iniiy 1)1! liiii- 
 it;'(l if no- 
 tiuu given. 
 
 EJECTMENT. 
 
 [8. 12. 
 
 DEFENCE. 
 
 It8, (^0 Any person appearing to such Writ may limit 
 his defence to a part only of the property mentioned there- 
 in, («/•) describing that part with r e asonable certaip tv (x) in 
 a notice entitled in the court and cause, and signed by him 
 or his Attorney, (y) which notice must be served within four 
 da3-a after appearance (z) upon the Attorney whose name is 
 
 i 3 JllS 
 
 It j1 
 
 in possession — not in respect of his having a risfht but in respect of his bein" 
 uctually in possession by a tenant wlio acknowledges hira as iiis landlord;" Clarke 
 V. Arden, Irt 0. B. 252. per Mnule, J. A person who pays rent to another person 
 as his landlord, whether rightfully or wrongfully his landlord, the latter is never- 
 theless his landlord in fact: lb. 250, ;>er Jervia, C. J. The landlord, therel'orc, 
 when admitted to defend, may, so long aa he sets up a defence consistent with 
 that of the occupant, assert his right to the land in dispute as against the plaintiff 
 in the ejectment: Doe d Willis v. Birchmore et al, 9 A. <& E. (162; Roe d Blnir 
 et al V. Slreet et al, 4 N. & M. 42; Doe d Wawn v. Horn et al, 3 M. A \V, .333. 
 But where a person defends as landlord, the occupiers having suffered judijment 
 by default, fie cannot object that Ihei/ have not received notice to quit: Doe, d, 
 Davies v. Creed, 6 Bing. 327. Where under the old practice two persons deliv- 
 ered separate consent rules, each claiming to defend as landlord, the one for the 
 whole of the premises claimed in the action, the other for part of them specifically 
 named in the consent rule, under adverse titles, the court ordered the consent 
 rules to be amended by confining them respectively to such parts of the piemises 
 as were really in the occupation of each party or his tenants: Doe d Lloyd et al 
 v. Roe, 15 M. & W. 431. 
 
 (v) Taken from C. L. P. Act, 1856, section 228, the origin of which was Eng. 
 Stat. 15 «fe 16 Vic. cap. 76, s. 174. Founded upon the first report of the Comniuu 
 Law Commissioners, section 95. Substantially a re-enactment of section 3 of 
 repealed Stat. 14 cfe 15 Vic. cap. 114. 
 
 (w) In an acti(m of ejectment under 14 <fe 15 Vic. cap. 114, for "lot No. 1, in 
 broken front concession of the township of Escott, in the county of Leeds," the 
 defendant, by his notice, limited his defence "to a part of the said lot mentioned 
 in the said writ, that is to say, <tc. :" setting out such part with metes and bounds. 
 At the trial defendant admitted '.liat plaintiff was the owner of the loi described 
 in the writ, but contended that the tract for which he defended was not enibrneed 
 within the patent: Held that i'-iving in express terms defended /or " a pnrt of lot 
 No. 1, mentioned in the wiii," he was not entitled at the trial to contend that 
 what he defended for was not a part of No. 1, and on that account not the piopc.iy 
 of the plaintiff: Darling v. Wallace 9 U. 0. Q. B. 611. Under the old ptaeticc 
 defendants were allowed to limit their defences by describing the property for 
 which they defended in the consent rule: Doe d Lloyd et al v. Roe. 15 M, <t W, 
 431. If at present the property be not so described in the writ as to convey to 
 defendant a correct idea of the property sought to be recovered, both as to sitna- 
 tion and extent, application may be made to a judge in chambers for better par- 
 ticulars: section 13. 
 
 (x) See notes to section 13. 
 
 (.V) The notice may be to this effect— T'jV/* of Court— Cause— TsiVe notice that 
 the defendant, A. B., limits his defence to part only of the property mentioned in 
 the writ — that is to say, to all and singular the parcel described as follows, com- 
 mencing at a post, dec. 
 
 (z) Computation of time : see G. L. P. Act, section 342, and notes thereto. 
 
 m 
 
s. 13.] 
 
 DESCRIPTION OF PROPERTY. 
 
 523 
 
 endorsed on the Writ, if any, (o) and, if none, then filed in 
 the proper Office; (b) and an appearance without such notice 
 conBniiig the defence to a part shall ho deemed an appearance 
 to defend for the whole, (t) 19 Vic. c. 43, s. 228. 
 
 13. (<0 Want of ^'reasonable certahly" in the descrip- if noliVe ' 
 tioD of the property, or part of it, in the Writ, or in the i.""ttiiM"ny* 
 notice of defence, or in the notice of the title given by either " "" '"^' ' 
 party, (') shall not nullify them, (/) but shall only be 
 
 [a) Whose name must be indorsed pursuant to section 3. 
 
 (A) I e. Oflice wlience writ issued. 
 
 ((•) The opiK.arance when filed may not. in the iirst instance, indicate how far, 
 or for what, defendant intends to defend. After tiie expiration of four days, if 
 tlicie be no notice limiting the defence, plaintift'may assume the appearance to be 
 for the whole property described in the writ: see Due d Lavenport v. Rhodm et al, 
 11 M. it W. 600. Where an appearance was entered ft)r the defendant, and plain- 
 tiff, witliout waitin<» four days, made up and served the issue book, together with 
 initice t>f trial, and subsequently within the four days the defendant gave notice 
 liniiliii!; his defence, which notice did not appear uj)on the issue book or record, 
 the notice of trial was held irregular: Grimxhuw v. White el al. 12 U. C. C. P. 521. 
 The (lefi'tidant is entitled by the statute to the four days for limiting his defence 
 ami to cislit days for notice of trial, and an order will not be granted to plaintiff to 
 iiiiieiul tiio issue served before the four days have elap.«ed without prejudice to the 
 iiiitiee of trial; Jiuchnnan v. Ueites el al. 2 U. C. L. J. N.S. 71 ; I'liillipa et al v, 
 W'mtfn, .T Prac. U. 312. But where the notice limiting the defence is a mere 
 triek to throw plaintiff over the assizes, summary relief may bo given to the 
 jilaintitf; see Vrooman v Vronnnm. 17 U. 0. C. P. 52.3. Where there is a limited 
 (lofeiioe ill ejectment it is irregular for plaintiff to enter judgment without first 
 obtaining a judge's order or a rule of court authorizing the entry of judgment: 
 lliirtil'l a iix V. Stewart el al. 3 Prac. R. 335. Scmfjle, in such case the e.vecutioa 
 fli(iiil(l fdUiiw the judgment, and there should be an entry ou the roll to authorize 
 the di'viiition from the writ: lb. 
 
 (fl) Tiiken from C. L. P. Act, 1850, eecMon 229, the origin of which was Eng. 
 Stat. 1.") it Iti Vic. cap. 76, s. 175. Founded upon the first report of the Common 
 Law Coinniissioners, section 96. 
 
 (') The declaration in ejectment, which was the first proceeding in the action 
 whin fjectment was a fictitious mode of procedure, gave no information as to the 
 [iruperty sought to be recovered. There being in such a case a want of" reason- 
 able ct'rtaiiity." the court or a judge had power, U|)on a})[)lication of the casual 
 (jector, to order particulars t(5 be delivered: see IJ'jC d Soxlon ct al v. Turner, 
 11 C. \\ 80(); which order might be obtained before ajipearance: Doc d Vernon 
 tl ul v. Rue. 7 A. it E. 14 ; and if obtained but not obeyed for more than four 
 terms, it became necessary for the lessor of ))laiiitiff to give a term's notice of 
 iiitentiim to proceed: lb However, the order, un'ess expressly made a stay of 
 [iroeeedings, did not so operate : Doe d li'berls ct m v. Roe. 2 D. it L. 673. Orders 
 have been niiide, upon application of the lessor of the plaintiff, for defendant to 
 iieeify the particular property for which he defended : Due d. Webb et al v. Hull, 
 itoe d. Saunders v. The Duke of Neivcaiftle, 7 T. It. 332, notes. 
 
 (n A want of " reasonable certainty " is at most an irregularity on tlie part 
 uf either party, which his opponent may waive: see li. G. pr. 106. If the latter 
 
 Sv- ,? .'4 ii If 
 
 .>. .M > •' 
 

 ' I' 
 
 
 
 m 
 
 f>i% 
 
 EJECTMENT. 
 
 [SS. 14, 15. 
 
 Defence of 
 person* out 
 
 of pOHIUH- 
 
 sion niiiy be 
 restraiued. 
 
 Judgment 
 in case of 
 non-(ippcar- 
 ance or de- 
 fence for 
 part only. 
 
 ground for an application to a Judge for better particulurs of 
 the land claimed or defended, or of the title thereto, which a 
 Judge may order in all cases, {g) 19 Vic. c. 43, s. 229. 
 
 14. {h) The Court or a Judge (i) may strike out or 
 confine appearances and defences set up by persons not iD 
 possession by themselves or their tenants, {j) 19 Vic. c. 
 43, s. 230. 
 
 JUDGMENT BY DEFAULT. 
 
 1«S. (Jc) In case no appearance be entered within the 
 time appointed, or if an appearance be entered, but the 
 defence be limited to part only, (l) the Plaintiff may sign a 
 Judgn.ent that the person whose title is asserted in the Writ 
 aha<' ^er possession of the land, or of the part thereof to 
 >L bff '^ofence does not apply, (wi) which Judgment, if 
 
 take a step wb' :!i 'n itself rniics a presumption that he is informed of tlie premises 
 intended, and natur 'f cla "^ • defence in respect thereof respectively, he will 
 be prevented from raUaig th« obiocticn: lb. 
 
 {g) The remedy for want of reasonable certainty is only ground for an applica- 
 tion " for better particulars," and therefore is no ground of application to set 
 aside the writ, &c. as in other cases of irregularity. Particulars may in eject- 
 ment be had of plaintiff's title: Wation et al v. Brewer, 4 Prac. R. 202. 
 
 (A) Taken from C. L. P. Act, 1856, section 280, the origin of which was Eng. 
 Stat. 16 & 16 Vic. cap. 16, h. 176. Founded upon the first report of the Common 
 Law Commissioners, section 97. 
 
 (0 Relative powers : see note w to section 48, C. L. P. Act. 
 
 (J) The power "to strike out or confine appearances and defences" is one 
 that the courts have for a long time exercised independently of any statutory 
 enactment: see Doe d. Lloyd it al v. Koe, 15 M. <& W. 4^^!. 
 
 (k) Taken from C. L. P. Act, 1856, section 231, the origin of which was Eng. 
 Stat. 16 i& 16 Vic. cap. 76, s. 177. Founded upon the first report of tiie Common 
 Ziaw Commissioners, section 98. Substantially a re-enactment of 14 A. 16 Yic. 
 cap. 1 14, 8. 5. The section applies as well to ejectments on a vacant as on a con- 
 tested possession: Harrington v. Bytham, Assignees of, 2 C. L, Rep. 1038. 
 
 (/) If defendant served be not in possession his course is not to appear: Ilarjitt 
 V. Lowndes. 16 U. C. Q. B. 430; but to move to strike his name out of tiie writ; 
 Hall v. Yuill, 2 Prac. R. 242. Whore defendant when served gave notice that 
 he did not deny plaintiff's title, and had given up possession before service of 
 writ, but at same time entered an appearance, it was held that plaintiff could 
 not upon the notice sign judgment by default: Harper v. Lowndes, 16 U. C. Q. B. 
 430; and was not bound at the trial to prove that defendant was in possession 
 when the writ issued : lb. 
 
 (m) If the writ has been personally served, an affidavit of service must be filed 
 before signing judgment in default of appearance : R. G. pr. 92. If not personally 
 
8. 16.] 
 
 ISSUE. 
 
 ^ 
 
 /,r^Z 625 
 
 for all, may be in the form No. 2, or to the like effect, and if Form of. 
 for partj may be in the form No. 3, or to the like effect, (n) 
 19 Vic. c. 43, 8. 231. 
 
 ISSUE. 
 
 16. (o) In case an appearance be entered, the claimants ir appear- 
 or their Attorney (p) may, without any pleadings, (q) make t"red!Vi«i*«i- 
 
 Krred a judge's order or rule of court must be obtained to authorize the signing 
 of judgment: lb. One montli's notice of intention to proceed after tlie lapse of 
 four terms is as much necessary in ejectment as in other actions: liinhop of 
 Toronto v. Cantwell, 1 1 U. C. C. P. 371 ; but see Scrope r. Paddison, 4 L. T. N.S. 
 254. The judgment when by default can only be for recovery of possession of 
 the land simply, and not for costs: While v. Cochlin, 2 Prac. R. 249; Hatkina v. 
 Cannon tt al, lb. 834; Bleecktr y. Campbell, 4 U. C. L. J. 136; but see RooU v. 
 Farniscolt et al, 2 Prac. R. 239. 
 
 (») In an action for mesne profits a judgment by default for claimant may, 
 except as provided in section 19 of this act, be replied to by way of estoppel 
 against the defendant in the same manner as a judgment by default in any other 
 form of action: Wilkinson v. Kir by, 16 C. B. 430, Where in trespass for mesne 
 profits, to which the pleas were, first, not possessed, and secondly, that before 
 the said time when, <fec. one W. was seised in fee and demised for 21 years to T. 
 vho demised to the defendant, who entered by virtue of the demise and repli- 
 cation by way of estopjjel as to trespass since 26th October, 1 863, setting out a 
 writ of ejectment in which the plaintiff was claimant, and dated 26th October, 
 1853, directed to the defendant as tenant in possession, and judgment thereon 
 by default and entry of plaintiff by virtue of the judgment, the replication 
 was held on demurrer to be good to both pleas: lb. IL'd also that it was 
 of possession had been issued or executed, and that entry by plaintiff if not 
 necessary to aver notice of the proceedings to defendant or that the writ 
 necessary was sufficiently averred: lb. Held also that the estoppel was from 
 the date of the writ, and that plaintiff's title would be pre .umed to continue, 
 until by rejoinder it was shown to have been determined . lb. But unless the 
 judgment in ejectment be replied by way of estoppel it is not conclusive : see 
 Sletn V. Sleen, 21 U. C. Q. B. 464. It is competent to claimant in ejectment, 
 after having established his right to possession, to give evidence of and recover 
 ntme profits in the same action : section 60. 
 
 (o) Taken from C. L. P. Act, 1856, section 232, the origin of which was Eng. 
 Stat. 15 <fe 16 Vic. cap. 76, s. 178. Founded upon the first report of the Common 
 Law Commissioners, section 99. 
 
 (p) i. e. By claimants, if suing in person, or by their attorney, if suing by 
 
 attorney. 
 
 (?) In ejectment under this act there is no plea of any kind allowed, and hence 
 defendant will not be allowed to plead an equitable defence : Neave v. A very et al, 
 16 C. B. 328. The claimant by his writ does all that is necessary to assert title 
 in himself, and defendant by his appearance does all that is necessary to deny it. 
 Thereupon the parties are at issue. It has been held that if plaintiff prove title 
 in himself to any part of the premises sued for he must have a verdict : Doe d. 
 Sheldon v. Ramsay et al, 7 U. C. Q. B. 446 ; see also Doe d. Strong v. Jones, lb. 
 386. But it has also been held the plea of not guilty, under the old form of eject- 
 mgnt, was divisible so that claimant might have a verdict as to the part of the 
 
 ml 
 
 * i! 
 
 
 I. ■•If 
 

 
 r i-*^' 
 
 
 52G 
 
 tiff may 
 niHke up 
 issuu. 
 
 EJEOTMENT. 
 
 [8. 17. 
 
 Form of. 
 
 Provision 
 
 respcc'ting 
 
 vexatious 
 
 <lefeiu!e8 
 
 witlinut 
 
 meritii. 
 
 up an issue by setting forth the Writ and stating the fact 
 of the appearance, with its date, and the notice limiting the 
 defence, if any, of each of the persons defending, so that it 
 may appear for what defence is made, and directing the 
 Sheriff to summon a Jury; (/•) and such issue, in case 
 defence is made for the whole, may be in the form No. 4, or 
 to the like effect, and in case defence is made for part, may 
 be in the form No. 3, or to the like effect, (.s) 19 Vic. c. 
 43, s. 232. 
 
 .VEXATIOUS DEFENCES. 
 
 17. (0 It being desirable in actions of Ejectment brought 
 against persons who are merely intruders not to prevent 
 claimants from recovering land to which they have just 
 claim on account of some want of technical form in their 
 title, or some iniperfuction not affecting the merits of their 
 case and of which mere strangers to the title having no 
 claim or colour of legal claim to the possession should not be 
 permitted to take advantage; (w) the claimant or his Attor- 
 
 property aought to be recovered, to which he proved title, and defendant as to the 
 residue: Doe d Bowman et <il v. Lewis 2 D. <fe L. 667 : see also Ooe d. Ernngm 
 V. Errington. 4 Dowl. P. C. 6i)2; Doe Smith et al v. Webber, 2 A. <fe E. 448; and 
 the latter now seems to be the correct rule of law : Alcock el al v. Wihhnw, 6 Jiir. 
 N.S. 628 ; s. c. 29 L. J. Q. B. 143 ; McNab v. Slewarl, 15 U. C. C. P. 189 ; and tiie 
 costs in such case are divisible: Doe Ilellyer v. King. 2 L. M. & P. 493; McDride 
 V. Lee, 16 U. C. C. P. 315, As to amendments in ejectment at nisi prius; see 
 note n to section 21. If the jury, though defendant is entitled to a part of the 
 land sought to be recovered, find a general verdict for plaintiff, the court, instead 
 of ordering a new trial, may restrain the execution of the writ of possi'ssion: 
 Ferrier v. iloodte, 12 U. C. Q. B. 379; Johuaton et al v. McKenna, 3 Prac. 11. 229. 
 But the jurisdiction to restrain the habere will only be exercised in a very pla'm 
 case: Hemmingway v. Hemmingway, U U. C. Q, B. 317. 
 
 (r) In ejectment it is not necessary to annex the notices of title on either side 
 to the issue book : Campbell v. Petlit, 26 U. C. Q. B. 507. 
 
 (s) When a statute enacts that a proceeding shall be in a given form, that form 
 must be followed: see Warren v. Love, 7 Dowl. P. C. 602; Codringlon v. CurlewU, 
 9 Dowl. P. C. 968. 
 
 (<) Taken from our old Real Property Act, 4 Wm. IV. cap. 1, s. 52. 
 
 (k) In general plaintiff in ejectment must recover by the strength of his own 
 title and not by the weakness of that of his adversary : Doe d. Wilke» v. Babcock. 
 1 U. C. C. P. 392; Ecclea et al v. Paterson et al 22 U. C. Q. B. 167. But to this 
 rule an exception is here created, t « as against persons " who are merely 
 intruders" in favor of persons having a just claim, but also having some technical 
 defect in their title or some imperfection not affecting the merits of the case, <fec. 
 Where it is necessary to leave the question of possession in the defendant for 
 twenty years in a doubtful point to the jury, the case is not one in which the 
 
s. 18.] 
 
 FORMAL DEFECTS IN PLAINTIFF S TITLE. 
 
 527 
 
 e on either side 
 
 ney, in any action of Ejectment, may qerve a notice upon the 
 Defendant iu words or to the eflfect following : (i;) 
 
 Take notice that I claim the premises for which this action 
 is brought, as the bond fide purchaser thereof from A. B. 
 
 Form of 
 nutiuu. 
 
 or as heir-at-law of A. 13. of 
 
 (wr otherwise^ as 
 
 Formnl de- 
 fects iu 
 plaiiititr'R 
 title ai(Iu<l, 
 wliiai and 
 how. 
 
 Me case mat/ he,) and that you will be required to show, upon 
 the trial of this cause, what legal right you have to the pos- 
 sessioa of the premises. (?c) 4 Wm. IV. c. 1. s. 52. 
 
 18. («) If upon the trial of such Ejectment, the evidence 
 of title given by the Claimant satis&es the Court and Jury (6) 
 that he is entitled in justice to be regarded as the proprietor 
 of the land, or is entitled to the immediate possession thereof 
 for any term of years, but that he cannot shew a perfect legal 
 title by reason of some want of legal form in some instrument 
 produced, or by reason of the defective registration of some 
 will or instrument produced, or from any cause not within the 
 power of the Claimant to remedy by using due diligence, (c) 
 the Jury, under the direction of the Court, may find a verdict 
 for the Claimant, unless the Defendant, or his counsel, upon 
 bein|i; required by the other party so to do, gives such evi- 
 dence uf title as shews that he is the person legally entitled, 
 or that he does hnnd fide claim to be the person legally enti- 
 tled to the land, by reason of the defect in the title of the 
 
 filainlifT can be allowed to remedy legal defects in his title by availing himself of 
 the provisions of this statute : Due d. Lyons v. Crawjord, 6 U.S. 334. 
 
 (v) See note * to preceding section. 
 
 (If) Unlp3s dcfen'lant show title the jury may be directed to find a verdict for 
 tlie plaintiff, notwithstanding his defective title : section 1 8. 
 
 (a) Taken from our old Real Property Act, 4 Wm. IV. cap. 1. s. 62. 
 
 (4) Both court and jury must be sati^ified. This intends a submission by the 
 judge to the jury of the question of the justice of plaintiff's demand. 
 
 (c) Claimant must satisfy the court and jury — 
 
 1. That he is entitled in justice to be regarded as the proprietor of the land; 
 
 2. Or is entitled to the immediate possession thereof for any term of years ; 
 
 3. But that he cannot show a perfect legal title — 
 
 1. By reason of some want of legal form in some instrument produced; 
 
 2. Or by reason of the defective registration of some will or instrument 
 
 produced ; 
 
 3. Nor from any other cause not within the power of the claimant to 
 
 remedy by using due diligence. 
 
 'ii'l 
 
 m 
 
31 ; 1 
 
 528 
 
 IJEOTMENT. 
 
 [ss. 19, 20. 
 
 The verdict 
 to be en- 
 dorsed ai 
 rendered 
 under tliit 
 Act. 
 
 Claimant, or that he holds, or does bond fide claioi to hold 
 under the person so entitled, (d) 
 
 10. (e) Wheo a verdict is rendered under the authority 
 of the foregoing provision, it shall be endorsed as given 
 under the seventeenth and eighteenth sections of this Act 
 and it shall he stated in thepoatea and entry of the judgment 
 to have been so given; (/) and in any action thereafter 
 brought for the meme profits, such Judgment in Ejectment 
 shall not be eviuuuce to entitle the Claimant to recover, (g) 
 4 Wm. IV. 0. 1, 8. 52. 
 
 SPECIAL CASES. 
 
 A special ^®« CO ^J consent of the parties and by leave of a 
 
 stated"*^ ^* Judge, (?') a special case may be stated (j") as in other 
 actions. (Z-) 19 Vic. c. 43, s. 233. 
 
 >>■ 
 
 
 (d) If the jury find the foregoing in favor of the claimant, they may find for 
 the claimant unless — 
 
 1. The defendant or his counsel, upon being required by the other party so to 
 do, gives such evidence of title as shows that lie is the person legally entitled ; 
 
 2. Or that he does bond fide claim to be the person legally entitled to the land 
 by reason of the defect in the title of the claimant ; 
 
 3. Or that he holds or does bond fide claim to hold under the person so 
 entitled. 
 
 See note u to preceding section. 
 
 («) Taken from old Beal Property Act, 4 "Wm. IV. cap. 1, s. 52. 
 
 (/) The object of this indorsement is with a view to what follows, viz. to avoid 
 the judgment being used in an action for mesne profits as evidence of title. 
 
 (g) This is an exception to the general rule, which is that judgments in eject- 
 ment even by default are evidence of title in an action for mesne profits : see note 
 n to section 16. 
 
 (h) Taken from C. L. P. Act, 1866, section 233, the origin of which was Eng. 
 Stat. 16 <fe Itt Vic. cap. 76, b. 179. Founded upon the first report of the Common 
 Law Commissioners, section 100. 
 
 ■ (f) Whenever a thing is directed to be done by leave of a judge, an tpplicatioa 
 t6 that judge is intended. Applications to a judge should generally be supported 
 by affidavit. The proceedings under this section will be by summons and order. 
 The summons should be entitled in the court and cause, and be " to show cause 
 why a special case should not be stated in this cause pursuant to section 20 of the 
 Ejectment Act." 
 
 (S) For precedents of special cases in ejectment : see Doe d. Kimber \: Cafi, 
 7 Ex. 676; Armstrong v, Botedidge, 16 C. B. 358: O'TooU v. Browne, 3 Jii. 4 
 B.672. 
 
 ,1[jf) See 0. L. F. Act, section 150. 
 
 ; iiS-.f 6t.t'. 
 
 m 1 
 
[88. 19, 20. 
 lim to hold, 
 
 he authority 
 sed aa given 
 of this Act, 
 the judgment 
 ion thereafter 
 in Ejectment 
 ) recover, {g) 
 
 ay leave of a 
 ) as in other 
 
 hey may find for 
 
 other party so to 
 >ga11y entitled ; 
 ititled to the land 
 
 er the person so 
 
 52. 
 
 lows, viz. to avoid 
 ice of title. 
 
 idgroents in eject- 
 profitB: Bee note 
 
 which was Eng. 
 >rt of the Common 
 
 Ige, »n tpplication 
 rally bo supported 
 amons and order. 
 B)e " to show cause 
 ,0 section 20 of the 
 
 I Kimber v. Caft, 
 Browne, 3 Jit. « 
 
 ,21.] 
 
 XniAI, OP QUESTIONS OF FACT. 
 
 529 
 
 QUESTIONS OP FACT. 
 
 SI. (I) If no special case be agreed to, the Claimants may Questions 
 proceed to trial in the same maDoer as in other actions, (m) ir no ippciai 
 aod the particulars of the claim and defence and of the upuu?^'** 
 Dotices of Claimant and Defendant of their respective titles, 
 if anj, or copies thereof, shall be annexed to the record by 
 the Claimants; (n) and except in the oases hereinafter 
 mentioned, (o) the question at the trial shall be whether the 
 itatement in the Writ of the title of the Claimants is true or 
 false, and if true, then which of the Claimants is entitled, and 
 whether to the whole or part, and if to part, then to which 
 part of the property in question ; (p) and the entry of the 
 
 (11 Taken from C. L. P. Act 1856, b. 234, the origin of which was Eng. Stat. 
 15 di 16 Vic. cap. 76, e. 180. Founded upon the first report of the Common Lavr 
 Commissioners, section 101, 
 
 (in) It is directed that claimants " may" proceed to trial iu the same manner 
 u in other actions, and of course serve notice of trial and take other steps neces- 
 sary before a trial in ordinary actions: see C. L. P. Act, section 201, tt leq. So 
 alter the lapse of four t«rms without a proceeding, a months' notice of intention 
 to proceed must be given : Bishop of Toronto v. Cantwell, 11 U. C. C. P. 371. 
 
 (n) The "particulars of claim" "if any" here mentioned in contradistinction to 
 notice of the nature of claimant's title, may mean the " better particulars," for 
 which provision is made in section 13, So "particulars of defence" " if any," 
 may mean the notice limiting the defence, under section 12. Delivery of parti- 
 culars of the claim or defence will not require to be proved when they are 
 appended to the record : Macarthy v. Smith, 8 Bing. 145. If they materially vary 
 from the particulars delivered, claimant's right to recover may be placed in 
 jeopardy. Should claimants go to ♦he jury and recover upon any ground vary- 
 ing from the particulars proved to have been delivered, defendant might be enti- 
 t, d to move for a new trial : see Morgan y. Harrit, 2 C. <& J. 461. Should, how- 
 tTer, defendant at the trial be in a position to prove the variance, he might have 
 the point reserved, and afterwards in the event of claimant's recovering move 
 the court to enter a nonsuit : lb. In either case it would be in the discretion of 
 the court to order the attorney for the claimant to pay the costs of the first trial : 
 B. The want of an appearance on the nisi prius record may be amended at the 
 trial: Johmon et al v. McKenna, 10 U. C. Q. B. 620 ; Diwton v. St. Clair, 14 U. C. 
 0- B, 97. So the notice of title or defence : see note b to section 4. Defendant 
 may waive such irregularities by appearing and defending, without objecting to 
 them : The Queen v. Adam* et al, 3 U. C. C. P. 404 ; Johmon et al v. McKenna, 10 
 U. C. Q. B. 620. 
 
 (o) The cases to which reference is made are, It is believed, such as are men- 
 tioned in section 30, which provides for the case of claimant being a joint tenant, 
 tenant in common, or coparcener, in which the jury, to entitle claimant to a 
 Terdiot, must find an actoal ouster. 
 
 if) This section eeema to sanction the principle of the issne being divisible 
 
 (itiier as to the property sought to be recovered, or the number of parties 
 
 appearing as claimants: see note q to section 16. Under the 14 <fc 16 Vie. cap. 
 
 'Hi it was held in ft case where the jury found a general verdict for plaintiff, 
 
 34 
 
 
 
 "^m 
 
 ' « 
 
 \t\ Ml 
 
m 
 
 'ri 
 
 r 
 
 (SO 
 
 ,^/ffn EJECTMENT. 
 
 [8. 22. 
 
 Form of 
 •nlry uf 
 T^rtlict. 
 
 vcrJic. 'ly be made in tho form No. 5, or to the like effcot 
 vrith suoa modifioatiooa as uiny bo necessary to meet the 
 , facts, (j) 19 Vic. 0. 43, s. 234. 
 
 If cisiinnnt ^^- (*") I" <'*8" ^^^ **^'o of the Claimant as alleged in the 
 rt*gervi(r of ^^•''^ ojcistod at the time of service thereof, (») but had 
 not nftur-' cxp'rod before the trial, (<) tho Claimant shall, notwithstund- 
 wards. ing, bo entitled to a verdict, according t > the fact, that ho was 
 entitled at the time of serving the Writ, and to judgment for 
 his costs of suit, (u) 19 Vic. o. 43, s. 235. 
 
 thougli defendant was in fact entitled to a part of tlio land mentioned in tiiowrit; 
 the court lield tliat tliis waa not a ground for a now trial, but fur an ap|ilicatioa 
 to reatroin plaintiff from taking posseaaloa of audi port : Ferrier v. Moodlc, 12 U. 
 0. Q. B. 37!>, Under tiiis oct, execution may issue " for tiie recovery of posses- 
 sion of the property or of such part thereof aa the jury have found the cliiiiimnt 
 entitled to: acction 26. Tiio court haa power to grant a new tri'il as tti lialfuf 
 a lot of land, allowing the verdict to atand os to the other half, when the tfpnriting 
 of auch new trial is in the discretion of the court : McNab v. Utewarl, 16 U. V. C. P, 
 189. When the now trial la ordered ex debito justiiice, the whole record is thrown 
 qpen. And this will be done in ejt'utment, unless the defendant conaeiits to a 
 Verdict atanding for such portion of the land as plaintiff haa failed to make title 
 to: 76. 
 
 (o) If it appear that claimant though having had a right to possession when 
 he issued and aerved his writ, haa none at the time of trial, tho verdict maybe 
 entered according to the fact : aection 22. If defendant appear and claimant do 
 not, the latter may be nonsuited : aection 24 ; in which case dufendaat will be 
 entitled to judgment for his costs : B. G. pi. 24. 
 
 ()•) Tala-n from C. L. P. Act 18S6, section 235, the origin of which is Eng.Staf 
 15 A lt> Vic. cap. 1Q,H. 181. 
 
 (ii) The writ should ho directed to the peraona in posseaaion of the land soaglit 
 to be recovered, " to the poaaession whereof claimant is entitled." The writ 
 allegea a right of claimant to poasession, but doea not show any title. Upon tiili 
 ground exccpUon has been taken by aeveral legal writera to the language of th«t 
 part of the Eng. C. L. P. Act which corresponds with the aection here annotated. 
 But under our C. L. P. Act there ia a distinction to be obaerved, in this, that in 
 addition to the allegations of the writ, there must be a notice annexed to the writ 
 ldU«9]u8ing "the nature of claimant's title:" sections 4, 6, of this act. 
 
 ^ (/) Which fact in general can only bo established by tcalimony given nl 
 
 thtftei: 
 
 (mY This was always the haw. Upon a special verdict in ejectment under the 
 old practice, it appeared that the leaaor of plaintiff claimea aa tenant for life. 
 And upon an affidavit of hia death it was moved that all proceedings mi^nlit ut 
 iBtaye'd, since it would be useless to contest the suit upon the merits. iS<dper 
 iUHktri, "Though the poaaeasion cannot be obtained, yet the plaintiff has a ri^bt 
 to proceed for damages and costs ; all we can do is to oblige him to give secnrity 
 fbr ooatd, now that the lessor is dead, as we do in the case of infant lessors, who 
 vnnnot enter into the common rule:" Thrmtout d. Turner v. Orey tt al, 2 Str 
 lOfiK : see also Doe d. Butt v. Rnu.\, 22 L. J. Q. B. 1 1 1. And a claimant is entitled 
 lo. hi writ of posaession notvitbsti^ding the lease uader which, he claiias, thuugli 
 
23.] 
 
 rhichisEng.Stal" 
 
 CHANOE OF FLACB OF TRIAL. 
 
 PLACE OF TRIAL MAY BK CHANGBD. 
 
 m 
 
 X^'i 
 
 33 (") On the application of either party, and on grounds I'l^rt may' 
 shcwu by affidavit, (A) the Court or a Judge (c) may order oi trial oa 
 that iho trial ((/) shall tuku place in any County other than 
 that in which the Venue is laid, (^) and such order being 
 "ifrcested on the record, the trial may bo had acoordingly. (/) 
 ;ic. c. 43, 8. 230. 
 
 in force lit tho time tho action wns commenced, has cxpirod before the trlol, 
 unless the defendant show affirmatively that tho claimant has no title whatever: 
 llihhiu^ V. Buckland, 1 H. cb U. 786; but see Buckland v. Oibbim, .32 L. J. Ch. 891. 
 In I'JLctmnnt, it appeared that tho plaintiff had recovered judgment in dower 
 ii^ainst tlio defendant's liindlord, who had submitted to the claim, and that defen- 
 dant nftcr this action had attorned to the plulutifT and paid rent to the Mttorney : 
 //(/(/that plaintiff was entitled to a verdict and judgment for costs, but not to » 
 writ (li possession : Fisher v. John.iton, 25 U. 0. Q. B. 616. A defendant in eject- 
 ment, who claimed undfr an unregistered lease subarqueut in date to an unrugisi 
 tcrwi lease under which the ]>liiintiff derived title, registered his Icnso after action 
 brought und before trial : lldJ that plaintiff, notwithstanding, was entitled to at 
 verdict and judgment for his costs: Jiyan v. Landert, 9 Ir. C. L. R. 487. 
 
 («) Taken from C. L. P. Act, 1866, section 236, the origin of which was Fng, 
 Stat. 16 (b 16 Vie. cap. ?6, 8. 182. Substantially the same as Stat. U. C. 7 Wui. 
 IV. cap. 3, 8. 14, which is taken from Eng. Stat. 3 <& 4 Wm. IV. cap. 42, s. 22, 
 ■id which extends to all local actions. 
 
 ^ The venue in ejectment is local : McKindxey v. Johmton, 14 U. C. Q. B. 2(M>. 
 nlication for a change as to the place of trial must be grounded upon an 
 . ..ivit showing a necessity for the change intended. It is not declared what 
 thai! be a sufficient ground for the application. Under the Act of William, any 
 cause would be sufficient which showed that delay or txpetue would be avoided, 
 and that it would bo more convenient to have the trial take place in the county to 
 which a change was desired : see Doe d. Baker v. Ilarmer, I H. A W. 80. u the 
 ground be that an impartial trial cannot be had in the county in which the venue 
 \i kid, that ground must in a local action be made out in a most satisfactory 
 manner to induce the court to interfere : see Briscoe v. Robert*, 3 Dowl. P. C. 434 ; 
 ice further note h to section 89, C. L. P. Act. ^ 
 
 ((] Court or Judge. Relativo powers: see note w to section 48, C. L. P. Act, ! 
 
 {d) Tho power conferred by the Act of William is to order the " issue" to be 
 tried in any other county than that in which the venue is laid. Hence it was held 
 that Qo application under that statute could be made until issue joined : Bell t. 
 Uarr'non, ■'. T.. 1. P. C. 181 ; see also The Gtiardians of the Youghal Union T» 
 Mimon, 9 Ir. C. L. R. App. xvii. 
 
 (e) The summons may be "to show cause why the trial in this cause should 
 lot be had in the county of B. and not in the county of A. in which the veoue \$ 
 Uid; and why, for that purpose, a sugi^stion should not be entered on the 
 record that the trial may be had in the said county of B. according to the statutf 
 in such case made and provided." 
 
 (/) The suggestion may be to this effect:— And the plaintiff {according to thi 
 fut) gives the court here to understand and be informed that on, Ac. the hono» 
 ibie, (be. one of the justices, Ac. did order that the trial in thts cause should tab* 
 place ia the county of B. instead of the county of A. The court rofnaed afte^ 
 
 n 
 
 ;1 
 
 !l 
 
 1, i'S< 
 
 
 ifiifll^^^B: 
 
 ■ 
 
 -;s| 
 
 
 
 
 MHTmKnW 
 
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 f^l^K' 
 
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 « itil^SS] 
 
 mPfffllPllB 
 
 t 
 
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 MJaaE 
 
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 W 
 
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532 
 
 .zy.: 
 
 KJEOTMSNT. JY 
 
 [88- 24, 25. 
 
 
 
 
 
 n 
 
 h j£ 
 
 I 1 
 
 .1 
 
 ..•ft 
 
 -' i- 
 
 Defendant 
 appearing 
 »nd Claim- 
 ant making 
 default, and 
 irice versa. 
 
 Special ver- 
 dict, tin. 
 
 FAILURB 07 CLAIMANT OB DEFENDANT TO APPEAR. 
 
 S4. (g) If the DefeDdant appears, and the Claimant doig 
 not appear at the trial, the Claimant shall be non-suited, (A) 
 and if the Claimant appear and the Defendant does not ap. 
 pear, the Claimant shall be entitled to recover without anj 
 proof of his title, (t) 19 Vic. c. 43, s. 23Y. 
 
 SPECIAL VERDICT. 
 
 2«S. (k) The Jury may find a special verdict, (I) and 
 
 jadgment to change the venue in ejectment -^ben by mistake it had been laid in 
 'a county different from that in vrhich the loads were situate: The Oroctrt' Co. t 
 Coll, 9 Ir. C.'L. R. App. -viii. 
 
 (ff) Talcen from C. L. P. Act, 1866, section 237, the origin of which was Eng, 
 Stat. 15 <b 16 Vie. cap. 70, s. 183. 
 
 (A) And rlefendant shall be entitled to judgment and his costs of the cause: 
 R. G. pi. 24. 
 
 " (i) 1. e. to recover possession of the property sought to be recovered. If 
 claimant seek to recover mesne profits, whether defendant appear or not, evidence 
 must be offered of the netnt profits: section 60. 
 
 (k) Taken from C. L. P. Act, 1856, sectica 238, the origin of which was Eng. 
 Stat. 15 (& 16 Vic. cap. 76, s. 184. Founded upon the firiit report of the Common 
 Law Couunissioners, section 102. 
 
 ; (I) The origin of a special verdict is the Statute of Westminster II. 13 Ed' 
 f I. cap. 30, B. 2. When during the trial of i cause any difficult question of law 
 ' arises the determination of which is necessary to a finding either for plaintiff or 
 defendant, the jury, instead of finding generally for the one or the other, find 
 ' specially the facts disclosed upon the evidence before them, and conclude to the 
 effect " that they are ignorant in point of law on which side thoy ought upon 
 these facts to find the issue ; that if upon the whole matter the court sliall be 
 of opinion that the issue is proved for the plaintiff, they find for the plaintiff 
 , accordingly and assess the damages at such sum, <bc. {according to the nature oj 
 'the case), but if the court are of an opposite opinion then vice versd." Thin 
 ' form of finding is called a special verdict. However, as on a general verdict 
 the jury do not themselves actually frame the posted, so they have in fact nothing 
 to do with the formal preparation of a special verdict. When it is agreed that a 
 Verdict of that kind is to be given, the jury merely declare their opinion as to 
 any fact remaining in doubt, and then the verdict is adjusted without their fur- 
 ther interference. It is settled under the correction of the judge by the coansel 
 oa either side, according to the state of facts as found by <>he jury, with respect 
 to all particulars on which they have delivered an opinion ; and with respect to 
 'other particulars according to the state of facts which it I ^^reed that thej 
 ought to find upon the evidence before them. The special jrdiot, when iti 
 ' form is thus settled, is, together with the whole proceedingc .n the trial, then 
 '' entered on record, and the question of law arising on the facts found is argned 
 'before the court in bane, and decided by that court as in the case of demurrer: 
 '^' Steph. PL 7 ed. 85. The jury must find facts, and not merely the evidence of facti: 
 ■^ see Bird v. Appleton, 1 East. 111. The court cannot draw from other statementi 
 ''in a special verdict anv inference of facts necessary to the determination of tht 
 '^'buse; such facts most D« exprcMly found one way or the other, and if theybt 
 
8.25.] 
 
 BIIiL OF EXOIFTIONS. 
 
 583 
 
 either p: rty may tender a bill of exceptions, (m) 19 Vic. c. 
 43, 8. 233. 
 
 not found the court will award a vmire de novo : Tanend tt al v. Chriity, 12 M. 
 i W. 816. Tiie judge ought to make a note of the verdict at the trial, uppp 
 which note the special verdict is afterwards prepared in form. Amendments of 
 the special verdict, when in accordance with this note, may be made: Manners qui 
 tm V. Poslan, 3 B. <fe P. 343 ; Bowers v. Nixnn, 12 (J. 11. 546 ; provided, however, 
 the alterations be such as to carry out the intention of the j ury : Williams v. Breedon, 
 ]B.A?. 329 ; Richardson v. Mellish, 8 Bing. 334. No alteration of substance 
 can, it seems, be made: Spencer v Ooter, 1 H. Bl. 78. In one case an amendment 
 vas allowed upon an affidavit of what had been proven at the trial : Mayo y. 
 Anhtr. 1 Str. 513. The special verdict when drawn up may bo jet down for 
 irguinent without concilium : R. 6. pr. 16 ; upon request of either party four days 
 before the day on which the same is intended to be argued: lb. The party set- 
 ting it down must, four days before the day appointed for arj^niment, deliver a 
 copy of the special verdict to each of the judges of the court in which it is set 
 down to be heard: R. 6. pr. 17. Notice of argument should thereupon be forth- 
 with (,'iven to the opposite party : B, 6. pr. 16. 
 
 (m) The origin of a bill of exceptions is Statute of Westminster Ii., 13 Ed. I. 
 cap. 31. It is the province of the judge at nisi prius to superintend the conduct 
 of a case and to direct the jury upon all matters of law arising out of the case. 
 If thu judge in his direction mistake the law the counsel on either side may 
 require him to seal a bill of exceptions stating the point or points in which he is 
 inpposcd to err. If the statement be truly made the judge is bound to seal it in 
 confession of its accuracy: Oibbs v. Pike, 9 M. <b W. 361; Cor^ar et al v. Reed, 
 21 L, J. Q. B. 18. The cause then proceeds to verdict aa usual. The opposite 
 party, for whom the verdict is given, is entitled, as in the common course, to judg- 
 ment upon such verdict in the court in /janc. for that court t/.kes no notice of the 
 bill of exceptions. But the whole record being afterwards removed by writ of 
 error, ihe bill of exceptions is then taken into consider ition in the court of 
 error and there decided: Steph. PI. 7 ed. 84. Thus a bi!l of exceptions is in 
 the nature of an appeal from the court out of which the record issued for trial 
 after judijtnent given in that court to one of superior jurisdiction. Tlie points 
 of exception must be in fact taken at the trial : Doe d. Tohnn et al v. Fisher, 
 2 Bligli. N. R. 9 ; Wright v. Sharp, 1 Salk. 288 ; CuHey v. Doe d. T.iyterson, 
 11 A. tb E. 1013, n. But the bill is usually settled, drawn up, signed arid 
 sealed afterwards: see Onrdner v. Baillie, 1 B. <b P. 32. It ought to contain 
 the exceptions made to the directions and ruling of the judge, together with 
 so much of the evidence given %i the trial as is necessary to make the excep- 
 tions intelligible to the court in error, and furnish grounds for the allowance 
 or disallowance of the exceptions. It is unnecessary that the bill should con- 
 tain the statement of a verdict within it, although it more commonly does so; 
 for it may be appended to iho judgment roll which contains the pleadings, the 
 issue joined, the jury process, the verdict, and the judgment of the court below : 
 Vuvm et ut v Lowndes, 1 M. <& O. 482, per Tindai, C. J. It is misdirection 
 and not non-direction that is the proper subject of a bill of exceptions: Mc Al- 
 pine V. Mangnall, 3 C. B. 517; Sedley v. McOowan. 7 Ir. C. L. R. 427; Anderson 
 T. Fitzgerald, 3 Ir. C. u R. 475; s. o. 4 II. L. C. 484. It is no misdirection to 
 express in strong terms ao opinion upon the evidence unless it be manifest 
 that the opinion was not at all warranted: Davidson v. Sianlei/. 2 M. A G. 721. 
 The misdirection, if any, on a matter of law, must be material to the decision 
 of the case: Earl of Norbury v. Kitchen, 1 L, T. N.S. 686. Exception must be 
 made to the particular parts of the charge that are objectionable: Scunlan et ux. 
 V. Sceals et al, 5 Ir. L. R. Ib9. The exceptions must be to the ruling of the 
 
 I' • V 
 
 "I. 
 
 ^f 
 
 '■'I 
 
 -£-Si_LJ:;i 
 
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 fi34 EJECTMENT. [8.26. 
 
 JUDGMENTS. 
 I. — Upon a Fjndino rov, tub TLAiNTirr. 
 
 Judgment if 36. (n) Upon a finding for the Claimant, (o) Judgment 
 00™"."" "" may be signed (p) and Execution issued for iho recovery of 
 
 judge and not to the rensons he may have given for the ruling: McMahon t. 
 Leonard et al, 4 Ir, C. L. H. 16, 31 •" see also s. c. 5 Ir. C. L. 11. 209, 253. A 
 refusal to nonsuit is not a ground of exception: Sedle.y v. McGownn, 7 Ir. C, 
 L. R. 427. Whether the overruling of a challenge to the array can be miide the 
 subject of an exception : aeo Earl of Aldborow/li el al v. Bland et al. 7 Ir. C 
 L. R. 671 ; see further The Queen v. WhaUn, 28 U. C. Q. B. 2, 108. The party 
 in whose favour the finding on an issue has been obtained cannot except to tlmt 
 finding, although it may hare been in nn immaterial part of the issue: Greenhan 
 V. Graff, 3 Ir. Jur. N.S. 9. An exception stating what the judge refused to do is 
 improper unless it contain a statement of what the charge was and wherein it 
 was objectionable: Maleomson et al v. Morton, 11 Ir. L. R. 230. Distinct excep- 
 tions to different parts of the charge ougiit not to be allowed : Strong et al v. 
 Aean et ux. 13 Ir, L. R. 93. It is not necessary on a bill of exceptions to set out 
 more tlian enough of the evidence to make the exceptions intelligible: WaUnn et 
 al V. Clooney. 1 Ir. C. L. R. 62. Though the exception complain of some orro. 
 neous ruling of the judge on a single point, it goes to the wiiole case: The Trus- 
 tees of Enans' Ck'trities v. The Bank of Ireland, lb 424. The exceptions tnnst 
 be taken before the jury is discharged: Close v. Batl, 1 Ir. Jur. O.S. 25t). If it 
 appear that the judge was sufficiently apprised of what the parties intended by 
 the exceptions the court of error will not scan tiie wording of them too narrowly; 
 Clooney v. Watson, 2 Ir. C. L. R. 135. The bill of exceptions need only contiiin 
 what the jud.fe did, and what he was requested to do, and what he refused to do: 
 W<ird V. Freenfin, lb 460, The specific question required to be left to the jury 
 ihould be stated: Hanks v. Crihbin et al, 7 Ir. C. L. R. 489. In some cases, instead 
 of allowing the exceptions, a venire de novo may be awarded: ThrlwaH v. W/i'^r- 
 ion. 7 Ir. Jur, N.S. 347. The bill may be amended after it is sealed: Richardson 
 T. Mdlish, 3 Bing. 334 ; see also Doe d Church et al v. Perkins ft al. 3 T. R. 
 949. The pnrty who tenders a bill of exceptions is not thereby precluded from 
 moving in arrest of judgment for defects apparent on the face of the oiijfinal 
 record: Enfield v. Ilitl. 2 Lev. 236. A party cannot select one point to go into 
 error, and apply to the court m banc, on another. He must elect to take all the 
 points on which he relies into error or none. But if there be any point wiiith 
 could not in any way be taken into error he may apply to the court in Lane, for 
 A new trial upon that point without abandoning his bill of exceptions : Adaim v. 
 Andrfws, 15 Q. B 1001 ; Gregory v. Sloieman, 1 El. & B. 3GU; see also Fabrigas 
 y, Mostyn, 2 \f . Bl. 929, 
 
 («) Taken from C, L. P, Act, 1856, section 239, the origin of which was Enj;. 
 Stat. 15 A 16 Vic. cap. 76, s. 185. Founded upon the first report of the Common 
 taw Commissioners, section 103, Substantially a re-enactment of Stat. 14 it 15 
 Vic. cap. 114, 8. 8. 
 
 (o) The finding must be upon the quesi-'on whether "the statement in the writ 
 ,of the title of the claimants is true or false, and if true, then which of the cliiiinniits 
 is entitled, and whether to the whole or part, and if to part then to which part of 
 the property in question:" section 21, 
 
 '.{p) Which judgment ought to be signed pursuant to section 48. Form thorenf 
 see Form No, 5 to this act; and may in some cases be entered ntinc pro tune: 
 "J)r,e d Ifai/ V. Hmt. 12 U. C. Q, B, 625; Duvrj et al v, Cameron, 14 U. C. Q. 13. 
 483; 8. 0. 16 U. C, Q. B. 175, 
 
8.27.] 
 
 JUDQMENTS AQAINST CLAIMANTS. 
 
 535 
 
 possession of the property or of such part thereof as the Jury 
 
 have found the Claimant entitled to, (j) and for costs, (r) 
 
 vitbin the time (not exceeding the fifth day in Term next , 
 
 after the verdict) ordered by the Court or Judge who tried ? 
 
 the cause, (s) and if no such order be made, then on the 
 
 fifth day in Term next after the verdict. (<) 19 Vic. c. 43, ^ 
 
 f. 239. 
 
 2.— Upon a Finding fob Defendant. ' 
 
 27. (w) Upon a finding for the Defendants, or any of ExRcution -i 
 thein, («) Judgment may be signed and Execution for costs "" ^"^ ^' , 
 issued against the Claimants named in the Writ, (w) within fcuaanUf *' 
 
 [q] See noto tt to section 21. / 
 
 (r) There may be either one writ of execution or separate writs for the recoverV 
 of possession anil costs at the election of claimant: section 28. It will be observed 
 that tiie costs are made to follow the judgment as in other actions. But since the' 
 C. L, P. Act, as before it, the court in an action of ejectment has jurisdiction to 
 order by rule the parties who really defend to pay the costs of claimant though 
 guch ]inrties be strangers to the record : nutchinxon et al v. Greenwood et at, 4 LI, 
 i B. 324. However, to entitle elaimaiit to call upon buch third parties being stran- 
 gers to tlie record to pay the costs of the action, it must be clearly shown that 
 the defence was conducted by such third parties and was really their defence nn^ 
 not that of the party wiio ostensibly defended: Anstey et al v. Edwards. IC C. B^ 
 212; seeiilso Thornton v. Wilkinso i, 11 W. R. 916; Mobbs v.Vandenbrande, 12 W. 
 R. 40."). There can be no costs where judgment is signed by default: see note m 
 to section 15. A defendant who in England had been in execution for costs fof 
 more than twelve calendar months, was held entitled to his discharge under 4^ 
 Geo. III. cap. 123 : see Humphreys v. Franks, 3 C. B. N.S. 7G5. 
 
 (') Qii. Is it intended that the court or judge shall have power in ejectment td 
 isnie speedy c.vecution ? In England there is an express provision to iliis effecti 
 2 Geo. IV. <k 1 Wni. IV. cap. 7", s. .S8. Authority is given to the judge wh» 
 may ti'v nn ejectment cause, in his discretion "to order that judgment may b« 
 entered and executinn issue in favor of the claimant at the expiration of six dayf 
 next after the giving of the verdict:" section 61. "^ 
 
 (0 Tiie Eng. C. L. P. Act here continues, " or within fourteen days after sucJi 
 verdiet, wiiicliever shall first happen," which expression has reference to sectiop 
 120 of Eng. C. L. P. Act, 1852, not adopted by our legislature, allowing execution 
 in all cases to issue in fourteen days after verdict under certain regulations. 
 
 {«) Tii'<en from C. L. P. Act, 185ft, section 24ft, the origin of which was Kng. 
 Stilt. 1,5 ii Irt Vic. cap. 7fi, s. 186. Founded upon the first report of the Common 
 Law Coniinissioners, section 140. 
 
 (») It is presumed that if one of several defendants succeed as against plaintiff, 
 6ucli defeiulaiit will be entitled to liis costs, being an aliquot proportion of tha 
 whole costs of the cause. 
 
 (•c) Tiie effect of the judgment is declared to be the same as that of the judg- 
 ment ill ejectment heretofore used: sect'on 49. The costs of a successful defen- 
 diiiit may be given by rule against the real claimant, though not named in tUo 
 writ: Mobhs v. Vandenbruude ct ux. 4 B. 4 S. 904. 
 
 iyH 
 
MS, 
 
 JIf 
 
 Kfr \ 
 
 m 
 
 SJKOTMKNT. 
 
 [8. 28. 
 
 Claimant tbe Same time, and in like manner as upon a finding for the 
 '""■ Claimant. («) 19 Vic. c. 43, s. 240. 
 
 ^, EXECUTIONS. 
 
 One or more 28. (a) Upon Judgment for recovery of posseseion and 
 ecution may costs, there may be either one Writ or separate Writs of 
 Execution for the recovery of possession, and for the 
 costs, (&) at the election of the Claimant. 19 Vic. c. 43 
 s. 241. 
 
 (x) See notes to preceding section. Section 186 of Eng. C. L. P. Act, corres- 
 ponding wit^ this section, concludes in the same manner as mentioned in note 
 i to tlie preceding section and for tlie reasons tlierein assigned. 
 
 (a) Talcen from C. L. P. Act, 1856, section 241, the origin of which was Enf; 
 Stat. 16 & 16 Vic. cap. 76, s. 187. 
 
 (6) The judgment in ejectment entitles claimont to possession of the Innd 
 described in the writ ; but he cannot tike posseooion by force. His remedy is 
 by writ of habere facias poaessionem : Doe d. Stevens v. Lord, 6 Dowl. P. C. 258, 
 TMiere may be circumstances under which a writ of restituti on would be more 
 proper than a writ of hab. fac. pass. : see Doe d. Pitcher v. Roe, 9 Dowl. P, C, 
 971 ; Doe Whittington v. Bar da, 20 L. J. Q. B. 406. The writ of hubere, like the 
 writ of fi. fa. is returnable immediately after the execution thereof: Doe d. 
 Hudson V. Roe, 18 Q. B. 806. All writs of execution must be directed to the 
 eberiff of some particular county. The writ to deliver possession of land must 
 of course be directed to the sheriff of that county in which the land is situate. 
 And if in thot county there be sufficient goods and chattels or other property 
 liable to execution, there would not seem to be any good reason for issuing two 
 separate writs where one might suffice, viz. hab. fac. poss. and fi fa. A siieriff 
 cannot, under an ordinary writ of fi. fa. break outer doors : Semaynet case, 
 6 Bep. 92; Burdett v. Abbott, 14 East 157; but if he has a writ both for poa- 
 flession and costs, he may, it is presumed, open outer doors to give possession, 
 and then levy for costs. Where a defendant in ejectment, after judgment against 
 him but before writ of habere executed, acquired title to the land, the court 
 stayed the execution of the writ of habere: Utlm v. Crossin, 17 U. C. C. P. 1K6, 
 The execution should follow the judgment, and the judgment, where there has 
 been a limited defence, should be so prepared as to award the execution for 
 the part only recovered : Harold et ux v. Stewart et al, 3 Prac. II. 335. As to 
 r eetraining the execution when plaintiff has by his verdict recovered more than 
 he is entitled to: see note q to section 16. Where a writ of habire issued within 
 one year after the entry of judgment, an alias issued more than six years tiiere- 
 after was held to be regular: Johnston et al v. McKenna, 8 Prac. R. 2'29. Where 
 the sheriff returned to the first writ that " none oame to receive possession," the 
 presumption of release of the judgment does not arise in the same manner as 
 if notliing had been done upon the judgment: lb. And it was held that the 
 second writ might be executed by the removal from possession of a person who 
 was the widow of a person that claimed under a judgment defendant: 'A. There 
 are some cases which appear to favour the idea that if there be a uisturbance 
 of possession recently after possession delivered, the court may, on application, 
 order possession to be restored, and punish by attachment: see Thompion v. 
 ilirehouse, 2 Dowl. P. C. 200; Doe d Lloyd y. Roe, 2 Dowl. ^ .S. 407; Dot d. 
 Pitcher v. Roe, 9 Dowl. P. C. 971. But the better opinion now appears to be that 
 after the possessiou of premises recovered io ejectment has been delivered to th» 
 
8.29.] ACTIONS BETWEKN JOINT TENANTS, ETC. 587^ 
 
 JOINT TENANTS, &o. 
 
 20. (c) In case the action has been brought by some or As to defen- 
 -^ . ... . . t> J ^,„it^ t,gi„g 
 
 one of several persons entitled as joint tenants, tenants in joints ten- 
 
 . . . ants, tenants 
 
 common or coparcenarj, any joint tenant, tenant m comoion in cummon, 
 
 ,,.,,, . , &c., admit- 
 
 or coparcener in possession, may, (a) at the time oi appear, tin^? right of 
 ance or within four days after, give notice in the same form &c.""*" "' 
 B3 the notice of a limited defence, (e) that he or she defends 
 as such and admits the right of the Claimant to an undivided 
 share of the property (stating what share), but denies any 
 actual ouster of him, from the property, (/) and may within 
 the same time file an aF davit, stating with reasonable cer- 
 tainty, that he or she is joint tenant, tenant in common or 
 coparcener, nnd the share of such property to which he 
 or she is entitled, and that he or she has not ousted th^ 
 
 y '' 
 
 rightful owner by the sheriff and the writ of possession duly returned, the power 
 of the court m tiie suit is at an end, and if tlic defendant take possession after- 
 warda the court will not summarily interfere: Wilson v. Ctanton et al, 6 L. T. 
 K.S. 255; McDermott v. McDermott, 4 Prac. R. 252; Edwardi el al v. Betinett, 
 61'rac. R. 161. 
 
 (c) Taken from C. L. P, Act, 1856, section 242, the origin of which was Eng.' 
 Stat. 15 & 16 Vic. cap. 76, s. 188, Founded upon the first report of the Common 
 Law Commissioners, section 105. 
 
 (J) May. If the notice made necessary by this section be not gri^'?", th»' 
 possession of defendant will be considered adverse and the action maintainable 
 S'ninst liim without proof of actual ouster: Scott et al v. AfcLeod, 14 U. C. Q. B.' 
 6H; ikVallnm v. Boxwell, 15 U. C. Q. B. 34S; Ltfch v. ZwA H ,i/, 24 U. C. Q. B.^ 
 321; Dailqeon v. Dudf/eon, 10 Ir. L. R. 584. But see Lyster v. Kirkpatrkk et al, 
 2ti U. C. Q. B. 217 ; Ljster v. Ramage, lb. 23-3. 
 
 (e) See section 12. 
 
 (/) At common law the possession of one joint tenant, coparcener, or tenant i* 
 common is presumed to be the possession of all : Ford v. Gr*y, 1 Salk. 285 ; Smalts 
 V. Dide, ll(»b. 120; Doe d. Bamett et al v. Keen, 1 T. R. 386; and this presurap- 
 tifin is only removed by proof of circumstances indicative of an adverse holding. 
 It 13 clear law that one joint tenant, &c., may so conduct liimself as to oust hia 
 co-tcnanta and hold in severalty. Such conduct in law and in fact amounts to an 
 actual Glister, to constitute which, actual force is quite unnecessary. Proof of 
 any circumstances indicating an intention on the part of the tenant in possessioii 
 to hold to the exclusion of his co-tenants, establishes an actual ouster. Thus 
 thirty-six years sole and unterrupted possession by a tenant in common without' 
 any account to or demand made by or claim set up by his co-tenant, was befor* 
 Stat. 4 \Vm. IV. cap. 1, s. 24, held to be a sufficient ground for a jury to presam* 
 an actual ouster: Doe d. Fishar et ux. v. Prosier, 1 Cowp 217. So proof of •' 
 demand of possession by one tenant in common, and a refusal by the other 
 tenant in common, and proof that the latter stated be claimed the whole pro- 
 perty : Boe d. Hellingt et ux. v. Bird, 1 1 East. 49. So where one of several joint 
 tcnanti authorized a railway company to take poeses^ion of the property^' 
 
 
 t ')! 
 
 
 'I" ' !' 
 

 m- 
 
 
 
 
 588 EJECTMENT. [ss. 30, 31. 
 
 Claimant, (g") and such notice shall be entered in the issue in 
 the same manner as the notice limiting the defeoco, and upon 
 the trial of such an issue, the additional question df whether 
 an actual ouster had taken place shall be determined. (A) 
 19 Vic. c. 43, s. 242. 
 
 Question to 30. (t) If upon the trial of such issue as last afurosaid 
 
 such joint it bo found that the Defendant is joint tenant, tenant in 
 
 i"'*wiiVi common, or coparcener with the Claimant, then the questiun 
 
 fonm'it'&c.'' whether an actual ouster had taken place shall be tried, and 
 
 trary.''^ "^"° unle.ss such actual ouster be proved the Defendant shall be 
 
 entitled to Judgment and costs; {J) but if it be found 
 
 either that the Defendant is not such joint tenant, tenant in 
 
 common, or coparcener, or that an actual ouster had taken 
 
 place, then the Claimant shall be entitled to Judgment for 
 
 the recovery of possession and costs. (/.-) 19 Vic. c. 43, 
 
 B. 243. 
 
 DEATH NOT TO ABATE SUIT. 
 
 Death of 31^ (A The death of a Claimant or Defendant shall not 
 
 either party ^ ' 
 
 which the company did : Doe d. Waxun v. Horn et al, 3 M. & W. .1133 ; s. c. 6 11. 
 dc W. 064. 
 
 {g) In ejectment by one joint tenant, Ac . to recover land in the possession pf 
 a co-tenant when the action was a fiction, the consent rule confessed only lense 
 and entry but not ouster. 
 
 (A) Thus it appears that the right of one joint tenant, Ac., to maintain eject- 
 ment against another, after notice to the claiuinnt admitting his rij^iit to reeover 
 an undivided share, depends entirely upon proof of an actual ouster. Wimtirig 
 this, the suit must fail; otherwise the absurdity would arise of a man l>iiii!>iiig 
 ftu action to recover possession of laud of which in tlie ej-e of the law he isleijally 
 possessed. 
 
 (i) Taken from C. L. P. Act, 1856, section 243, the origin of which wns Eng. 
 Stat. 15 <fe IG Vic. cap, 76, 8. 189. 
 
 {j) The provisions of this section necessarily orise out of the preceding ene. 
 If it be not proved tliat the party in possession, being a jcjiut tenant, Ac. is Iml'l- 
 ing adversely to claimant, then a recovery in ejectment would be most lianii^siii?, 
 and such as the law would never tolerate. On the contrary, under these eireiim- 
 Btances, a verdict would pass for defendant, and ho would bo entitled under this 
 section to judgmeat and costs. 
 
 {k) This proposition is the converse of that enacted in the first part of the sec- 
 tion and supported by similar principles. In the event of a recovery by claimnnt, 
 then defendant would be ejected in the ordinary manner aud be liable to pn3nient 
 of clainiaut's costs of suit under this section. 
 
 {I) Taken from C. L. P. Act, 185(1, section 244, the origin of which was Kng, 
 Stat. 16 ii 16 Vic. cap. 76, s. 190, 
 
6.32.] 
 
 DEATH NOT TO AB.\TE ACTIO^f. 
 
 m 
 
 daut sliall not 
 
 833 ; s. c. 6 M. 
 
 which was Eng. 
 
 whk'h was Eng, 
 
 ciuse the action to abate, (m) but it mav be continnt?d as not to abate 
 hereinafter provided. 19 Vie. c. 43, s. 244. "'"""' *"• 
 
 32, (//) In case of the death of a Claimant, if the right night of one 
 of the deceased Claimant survives to another Claimant, a su'rv'i'v"',g to 
 8U|rgestion may be made of the death, (o) which suggestion ""^ 
 shall not be traversable, but shall only be subject to be set 
 aside if untrue, (p) and the action may proceed at the suit of 
 the surviving Claimant; aijd if such a suggestion be made 
 
 (m) The nbolition of all fictions in (he action of ejectment hns resulted in thi.H 
 anil tiie following enactments. This section is a mere echo of section 131 of 0. 
 LP. Act. The same may be said of each of the following sections, in so far as 
 theyliftve reference to the revival or continuation of proceedings either before or 
 oftor judgment. A general clanse declaring that ejectment should be conducted 
 as near as may be in tlie same manner, as personal actions might have saved much 
 useless repetition. When John Doe, a legal myth, was plaintiff in ejectment, he 
 never died, and the death of his lessor, who was the real plaintiff, did not affect 
 the [jroceeding: JJoe d Ei/remoiU v. Sifpliens. 10 Jur. 570; Doe d. Hay v. Hunt, 
 liU. C. Q B. 626; s. c. 1 Prac. R. 2"2. But now that the real claimant must 
 be the actual plaintiff in this, as in other forms of action, the application of like 
 rules as to reviving or continuing the action as are applied to ordinary actions, 
 is both just and reasonable. The right to costs cr liability to them is also a 
 natural result of the same change. Costa formerly in ejectment being only recov- 
 erable under the consent rule, which was enforceable by attachment, established 
 a personal liability determinable with the death of the party liable: Doe d Har- 
 rison V, IJainpnon, 4 C. B. 745. This sectum which speaks of the continuation of 
 tbe action, applies only, it is apprehended, to proceedings before final judgment: 
 tti'. Jotifs V. Fmlay, 3 Ir. Jur. N. ■>. 180. Where after a verdict for a sole claimant, 
 taken subject to a special case and before the case came on for argument, the 
 claimant died, the court ordered the case to stand over until after a suggestiou 
 Imd been entered by the legal representative of the claimant: Denison v. lloliday, 
 1 II. it N. 61. But this direction, which was erroneous, was not carried out: s. 
 c. Ih. C30, n ; and the argument was allowed to proceed on the case as it 
 originally stood, and jndsrment was afterwards entered nunc pro tunc : s. c. 26 L. J. 
 Ex. 228. A similar difficulty arose, and was discussed in Davy et al v. Cameron, 
 H U. C. Q. B. 483 ; and in X.\\q. same case the court afterwards allowed the judg-' 
 meat to be entered nunc pro tune : s. c. 15 U. C. Q. B. 175. The death of one of 
 t«ii iilaiiitids after judgment (where for all that appears the recovery is joint and 
 eurvivcs) does not render necessary a suggestion of the death on the roll or order 
 to support a writ of possession: Johnston et al v. McKenna, 3 Prac. R. 229. 
 
 (n) Taken from C. L. P. Act, 1656, section 245, the origin of which was Eng. 
 Stat. 15 it: 16 Vic. cap. 76, s. 191, in effect the same as section 132 of C. L. I\ 
 
 Act, 
 
 (") The entry of the suggestion necessary to the continuance of the suit may 
 be made at any time during the progress of the suit and before verdict. If at 
 oIm [irlus it may be substantially the same as that in note a to section 132, C. L, 
 
 P. <Vct. 
 
 (/') The application to set aside a suggestion because of Us untruth must be 
 Croundt'd upon an affidavit. The proceedings will bo by sunmions and order. 
 The fiuinmons may be " to show cause why the suggestion of the death of C. D, 
 ic. should not be set aside with costs, the some being untrue." 
 
 
]•■ 
 
 
 
 540 
 
 EJECTMENT. 
 
 [ss. 33, 84. 
 
 'f- ifc /v f I 
 
 If the right 
 of the de- 
 ceased 
 claimant 
 does not 
 
 before the trial, (q) then the surviving Claimant shall have a 
 verdict, and recover such Judgment as aforesaid, (r) upon 
 proof that he was entitled to bring the action either sepa- 
 rately or jointly with the deceased Claimant. («) 19 Vic. 
 c. 43, s. 245. 
 
 33. (t) In case of the death before trial of one of several 
 Claimants, whose right does not survive to another or others 
 of the surviving Claimants, and the legal representative 
 another, &c. of the deceased claimant does not become a party to the suit 
 in the manner hereinafter mentioned, (v) a suggestion maybe 
 made of the death, which suggestion shall not be traversable, 
 but shall only ba subject to be set aside if untrue, (w) and 
 the action may proceed at the suit of the surviving Claimant 
 for such share of the property as he is entitled to (x) and 
 costs, (y) 19 Vic. o. 43, s. 246. 
 
 34- (a) In the case of a verdict for two or more Claimants, 
 if one of such Claimants dies before execution executed, [h) the 
 
 f.[-.-/ 
 
 I or more 
 
 6ne( 
 
 of several 
 Claimants 
 
 f^) It is not clear that under this section a suggestion can be made after trial. 
 Upon a suggestion being made it is enacted in the early part of the section " that 
 the action may proceed," <&c. The doubt is as to the peculiar language of the 
 part of the section here annotated, " and if such suggestion shall be made befort 
 the trial," &o, 
 
 i,ii,(r) See section 26. 
 
 (*) This section appears to provide for the death of one of two or more clflimants 
 during the pendancy of a suit, " in case the right of the deceased claimant sliall 
 ■urvive to another claimant," and yet at the end of the section enacts that the 
 surviving claimant shall have a verdict if it be made to appear that he was enti- 
 tled to bring the action " fither separately or jointly with the deceased claimant." 
 It is intended that the survivor shall recover, whether entitled in his own right, 
 independently of the deceased, or by survivorship. The next section explicitly 
 provides for the death of one of several claimants whose right does not survive. 
 
 (<) Taken from C. L. P. Act, 1866, section 246, the origin of which was Eng. 
 Btat. 16 <fe 16 Vic. cap. 76, s. 192. 
 
 (v) Under section 36. 
 
 ^g .(to} See notep to section 82. 
 
 (x) This section is not, like the last, applicable to the death of one of several 
 joint tenants. It applies rather to the death of one of several tenants in commoD. 
 
 (y) See section 28. 
 
 " ■ {a) Taken from 0. L. P. Act, 1866, section 247, the oiigin of which was Eng. 
 Stat. 15 & 16 Vic. cap. 76, 8. 193. 
 
 ^'^ (6) There maybe execution to recover possession of the property and execution 
 '^^fo recover costs of suit: section 28. This section has reference exclusively to the 
 
8.35.] 
 
 DEATH OF SOLE CLAIMANT. 
 
 m 
 
 ■which was Eng. 
 
 other Claimant may, whether the legal right to the property dyinp nftcr 
 lurvives or not, (c) suggest the death in manner aforesaid, (c^) tium'but 
 and proceed to Judgment and execution for the recovery of c'uUun.'' 
 posgession of the entirety of the property and the costs ; (e) 
 but ibis shall not affect the right of the legal representative 
 of the deceased Claimant, or the liability of the surviving 
 Claimant to such legal representative, and the entry and pos- 
 gession of such surviving Claimant under such Execution 
 aball be considered an entry and possession on behalf of such 
 legal representative in respect of the share of the property to 
 vhich he is entitled as such representative, (/) and the 
 Court may direct possession to be delivered accordingly. (^) 
 19 Vic. c. 43, s. 247. 
 
 35- (h) Iq case of the death of a sole Claimant, or in Dcntuofsoio 
 case of the death before trial of one of several Claimants one whose 
 whose right does not survive to another or others of the noUm-vivQ 
 Claimants, the legal representative of such Claimant (i) may, "*"" 
 by leave of the Court or a Judge, (j") enter a suggestion of 
 
 former. An execution to recover possession of property cannot bo said to be 
 "executed" until there has been at least a diaposcession of the parties who 
 defended, and perhaps a delivery to claimant or his agent: see section 35 ; where 
 the language is " and before execution executed by delivery of possession." 
 
 (c) Tiiis seems to have reference to the cases contemplated in sections 32 and 
 33, provided the death take place " after verdict." 
 
 {d) i. e. In the same manner, and subject to be set aside, if untrue, as provided 
 in the two preceding sections. 
 
 (() See section 28. 
 
 (/) Tiie provisions of this section are peculiar. In case of the death of one of 
 several claimants before " execution executed," the survivor, " whether the legal 
 right to the property shall survive or not," may proceed for the recovery of the 
 possession of the " entirety of the property," and be, it is presumed, tenant in 
 coGimon with, or trustee for, the represeiicatives of the deceased, whenever the 
 representatives derive any interest from tlic deceased in the land recovered. 
 
 (g) Although it is enacted that "the Court" may direct possession to be deli- 
 vered, it is presumed that a judge in Chambers might exercise that power : see 
 Smttlon et at v. Collier, 1 Ex. 467 ; see also note to to section 48, C. L. P. Act. 
 
 (A) Taken from C. L. P. Act, 1856, section 248, the origin of which was Eng. 
 Stat. 15 & 16 Vic. cap. 76, 8. 194. 
 
 (i) Such elaimani, i, «. either the sole claimant in the action, or one of several 
 claimaDts in respect of a separate and individual estate or interest. 
 
 (;') The application must be grounded upon affidavit. In a case where the 
 representative of a deceased sole claimant made application, the affidavit was as 
 
 f iii 
 
 
 1 
 
 in 
 
 
 1 
 
 m 
 
 
 11 
 
 ■■ll: 
 
 Hi ^' 
 
 ^B 
 
 i 
 
 
 ' 1 
 
512 
 
 EJECTMENT. 
 
 [8. 30. 
 
 
 *s-;I;, 
 
 the death, and that ho is such legal representative, and th« 
 action shall thereupon proceed, (^) and if such sug^esliua 
 be naade before the trial, the truth of the suggestion shall be 
 tried thereat, together with the title of the deceased Cluimant 
 and such Judgment shall follow upon the verdict in favor of 
 or against the person making such suggestion as hereinbefore 
 provided with reference to a judgment for or agoinst such 
 Claimant; (I) and if in case of a solo Claimant the suggestion 
 be made after trial and before execution executed by delivery 
 of possession thereunder, (m) and the suggestion be denied 
 by the Defendant within eight days after notice thereof, (n) 
 or such further time as the Court or a Judge may allow, (o) 
 then such suggestion shall be tried, anti if upon the trial 
 thereof, a verdict passes for the person making the sujrgestion, 
 ho shall be entitled to such Judgment as aforesaid (p) fortbe 
 recovery of possession and for the costs of and occasioned by 
 the suggestion, and in case of a verdict for the Defendant, 
 the Defendant shall be entitled to such Judgment as aforesaid 
 for costs, (g) 19 Vic. c. 43, s. 248. 
 
 Dcathofone 36. (r) In case of the death before or after Judgment of 
 join^uefcn- onc of sevcral Defendants who defend jointly, a suggestion 
 dants. ^^^ |jg made of the death, (s) which suggestion shall not be 
 
 follows, " 1. That this is an action of ejectment brought by plaintiff to recover 
 possession of certain land, being, &c. ; 2. That the action was commenced by writ 
 of summons, issued on, &c. ; 3. Thht defendant, on, <bc. appeared and defendn this 
 action; 4. That on, Ac. plaintiff died at, Ac; 6. That plaintiff, by his last will 
 and testament, devised said land to deponent, whereby deponent became and ii 
 the legal representative of said plaintiff; 6. That the venue in this action is laid 
 in the county of, Ac." : Stringer v. Amrnerman, JUS. Chambers, Oct. 25, 1856, 
 per Burns, J, 
 
 (i) I. «. Upon entry of suggestion. 
 < {I) See sections 26, 27 of this act. 
 . {m) See note b to section 34. 
 
 (n) See note t to section 302, C. L. P. Act. 
 
 (o) Court or Judge. Relative powers : see note w to section 48, C. L. P. Act. 
 
 (p) See section 26 of this act. 
 
 (g) See section 27 of this act. 
 
 ' (r) Taken from 0. L. P. Act 1886, section 240; the origin of which was Eng. 
 Stat. 16 A 16 Vie. cap. 76, b. 19S. 
 
 («) The suggestion may be in effect the eame as that given in note m to section 
 134, C. L. P. Act. .•:.>jiyi'..; syj . i •>,. . ,V ,<'> iiu««.^*»i tj« 
 
 um. \ 
 
gS. 37, 38.] DEATH OP DEFENDANT BEPORE TRIAL. 
 
 Ml 
 
 n shall not be 
 
 traversable, but only be subject to be set aside if u.ntrae, (0 
 and the action may proceed against the surviving Defendant 
 to Judf^ment and execution, (u) 19 Vic. c. 43, s. 249. 
 
 37. («) In case of the death of a solo Defendant, or of all Dtntimfsnie 
 the Defendants before trial, (0) a suggestion umy be made of of hH lUe 
 
 . , , , . , , ,. C I, . ^ 11 'li'f'iKlaiita 
 
 the death, (c) and such suggestion shall not be traversable, buiaio truL 
 but only be subject to be set aside if untrue, (c?) and the 
 Claimants shall be entitled to Judgment for recovery of pos- 
 session of the property, unless some other person appears and 
 defends within a time appointed for that purpose, by the order 
 of the Court or a Judge, made upon the application of the 
 Clairaaiits. (e) 
 
 38. (/") The Court or a Judge ((/) upon such suggestion Aftrrsus- 
 beiog made, and upon such application as aforesaid, may order fmi-nunt 
 that the Claimants shall be at liberty to sign Judgment at such "'i'at the °°' 
 time as the Court or a Judge thinks fit, unless the person then i,y' juJao-'B*^ 
 in possession by himself or his tenant, or the legal represen- ""^''''" 
 tative of the deceased Defendant, appears vrithin such time 
 
 and defends the action ; (A) and such order may be served ia 
 the same manner as the Writ, (i) and in case such person 
 
 (() See notcjD to section 32. 
 
 (u) See section 28. 
 
 (a) Taken from C. L. P. Act, 1856, section 2S0, the origin of which was Eng. 
 Stat, 15 & 16 Vic. cap. 76, s. 1U6. 
 
 (J) Death after verdict is provided for in section 39. 
 
 {() The Biiggestion may be substantially the same as that contained in note n 
 tofiection 134, 0. L. P. Act. 
 
 (i) See note p to section 32. 
 
 (<) The Court or .Tudge Is by order, upon the application of claimant, to fix the 
 time nt which the claimant may sign judgment, imless the person then in possea- 
 aiun, ikc. shall appear, <kc. The order intended is a conditional one, granting 
 leave to sign judgment on a day named, unless, «tc. 
 
 (/) Taken from C. L. P. Act, 1856, section 250, the origin of which was Eng, 
 Sti\t. 15 <fe 10 Vic. cap. 76, s. 196. 
 
 {g) Relative powers : see note to to section 48, C. L. P. Act. 
 
 [h) It is designed, in the event of a person being in possosaion ofclier than the 
 ori^nal defendant deceased, that such, person ehall have notice of the pending 
 action, and be in a position to defend himself before being dispossessed under k. 
 
 judgment obtained against deceased. 
 
 ' i;j .'wL'i'j r.. ■ , 
 
 (i) See sections 6, 7, and notes thereto. ■- '•• 
 
 m 
 
 1^ 
 
 ■t { 
 
''■«0 
 
 \m 
 
 M 
 
 w 
 
 
 U ' 
 
 544 
 
 EJECTMENT. 
 
 [88.39,40. 
 
 Death of golo 
 defendant ur 
 of all the 
 defeudnuts 
 after ver- 
 dict. 
 
 PeathViefore 
 a trial, nf a 
 defendant 
 defending 
 ■eparateiy 
 for part. 
 
 appears and defends, the same proceedings ma; bo taken 
 Bgiiinst such new defendant as if he had originally appeared 
 and defended the action, (j) and if no appearance be cDtercd 
 and defence made, then the Claimant may sign Judgnicat 
 pursuant to the order, (k) 19 Vic. c. 43, a. 250. 
 
 39- (0 Iq case of the death of a sole Defendant or of all 
 the Defendants, after verdict, the Claimants shall neverthe- 
 less be entitled to Judgment as if no such death had taken 
 place, (m) and var.j proceed by execution for recovery of pos- 
 session without suggestion or revivor, (n) and may proceed 
 for the recovery of the costs in like manner as upon any other 
 Judgment for money, against the legal representatives of the 
 deceased Defendant, (o) 19 Vic. c. 43, s. 251. 
 
 40. (p) In case of the death, before trial, of one of seyc- 
 ral Defendants who defends separately for a portion of the 
 property for which the other Defendant or Defendants do not 
 defend, (q) the same proceedings may be taken as to such 
 portion as in the case of a sole Defendant, (r) or the Claimant 
 may proceed against the surviving Defendants in respect of 
 the portion of the property for which they defend. 19 Vic. 
 c. 43, 8. 252. 
 
 (j) It is presumed that such person may either defend for the wliole or fo. part; 
 section 12. 
 
 (k) See section 16 of this act. 
 
 (l) Taken from C. L. P. Act, 1856, section 251, the origin of which was Eng, 
 Stat. 16 <b 16 Vic. cap. 76, s. 197. The principle of this section is similar to that 
 of section 139, G. L. P. Act, which see. 
 
 (fw) Where, after verdict had before the C. L. P. Act, but judgment entered 
 after that act, plaintiff proceeded under this section. Held, he was entitled so to 
 do: McCallum v. MeCallum, 2 U. C. L. J. 211. 
 
 (n) In which case judgment, it is presumed, must be entered against deceased 
 defendant as if living. 
 
 (o) I. t. By suit upon the judgment, or by writ of revivor. 
 
 , {p) Taken from C. L. P. Act, 1866, section 262, the origin of which ' ' 
 Stat. 16 <b 16 Vie. cap. 76, s. 198. 
 
 iq) Provision is made by section 41 for the death before trial of t 
 iendants, who defends separately for property for which the surviviL, 
 also defend. 
 
 : (r) Section 87. 
 
 devenl 
 tifendaati 
 
 
89, 41, 42.] 
 
 DIBOONTINniNO. 
 
 645 
 
 •II' (0 In oase of the death, before trial, of one of several DontiiiKfoto 
 DcfentliDts, who defends separately in respect to properly for .i. n iHi'iiit 
 which the surviving Defendants also defend, (m) the Court or ^parau'iy * 
 a Judge, (v) upon the application of the person in possession lu'ity'ror"^"" 
 of the property at the time of the death, or the legal rcpre- ajlo a'uiluT 
 ijcntativo of the deceased Defendant, may at any time before 
 trial allow such person or representative to appear and defend 
 on such terms as appear reasonable and just, (w) and if no 
 such application be made or leave granted, the Claimant sug- 
 gesting the death in manner aforesaid, (a:) may proceed 
 against the surviving Defendants to Judgment and Execu- 
 tion, (j/) 19 Vic. c. 43, s. 253. 
 
 DIHCONTINUINO. 
 
 48. («) The Claimant (6) may at any time discontinue ciaimixnt 
 the action as to one or more of the Defendants, (c) by giving to ["tmu as to" 
 
 {I) Taken from C. L. P, Act, 1856, section 253, the origin of wluci* was Eng. 
 Stat, 15 A IG Vic. cap, 76, s. 199. 
 
 («) Provision ia made by section 40 for the death before trial of one of several 
 (lofcndftiits, who alone defends separately for a portion of the property. 
 
 (i;) Court or Judge. Relative powers: see note w to section 48, C. L. P. Act 
 
 (w) The " person in possession " here intended mnst be some person other tlinn 
 •he surviving defendants, and may or may not bo the "legal repreaentativo" of 
 dec. \sed defendant. 
 
 (t) See sections 36, .87, 88. 
 
 (,y) See section 28. 
 
 (a) Taken from C. L. P. Act, 1856, section 254, the origin of which was Eng. 
 Stat. 15 (fc 16 Vic. cap. 76, a. 200. 
 
 (J) One of several claimants may discontinue under the provisions of section 48. 
 
 (c) The discontinuance may bo made "at any time," and be "as to one or more 
 of the defendants." This is a mode of procedure equivalent to nolle prosequi and 
 rttraxit, in ejectment formerly. It was allowable to enter a nol. proa, as to one or 
 more of several defendants at any time before trial and even after the commission 
 day of the assizes: Oree v. RoUe et al, 1 Ld. Rayd. 716. A difference, however, 
 between a discontinuance, nolle prosequi and retraxit, appears to exist. A plaintiff 
 ^vlio finds that ho has misconceived his action may obtain leave to discontinue. 
 he same or for any other reason a plaintiff may, under certain circumstances, 
 ueiuru verdict, enter a nolU prosequi. In either case there is the right to com- 
 nietiio a new action for the same cause ; but a nolle prosequi after judgment ope^ 
 rat as a retraxit, and a retraxit is a bar to any future action fur tlie same cause : 
 •fi Im v. Home, 7 Bing. 716 ; Benton et al v. Polkinghorne, 16 M. (b W. 8. It is 
 A question whether a claimant desirous of discontinuing as to a sole defendant or 
 33 to all of several defendants, can do so under this section. The expression 
 " one or more of the defendants," seems to have a contrary bearing. Before this 
 
 . '5 
 
 ' I 
 
 ii.^'-i 
 
 
n' II. 
 4 'ffv • 
 
 '1' 
 
 k t 
 
 »»' f 
 
 ill:- ii! 
 
 H^' i 
 
 
 l« 
 
 546 
 
 one or more 
 (lufcndautB. 
 
 ' Claimant 
 not i>r(H 'ctl- 
 iug to trial 
 in dub tiiiio 
 after uotiuo. 
 
 EJECTMENT. • [88.43 44, 
 
 the Defendant or his Attorney a notice, headed in the Court 
 and cause, and signed by the Claimant or his Attcroey 
 • stating that he discontinues such action, (d) and thereupon 
 
 the Defendant, on receiving such notice, may forthwith 
 sign Judgment for costs in the form No. 6, or to the like 
 effect, (c) 19 Vic. c. 43, s. 254. 
 
 4.3. (/) In case one of several CMaimants desires to dk. 
 
 One of 8CV* 
 
 erai ciiiiin- coutinuo, he may apply to the Court or a Judge (</) to have 
 
 ants may ,. iV/i f i , 
 
 discontinue, his name struck out of the proc8odin(_;s, and an ordor p>ay be 
 made therefor on such terms as to the Court or Judge isoems 
 fit, (h) and the action shall thereupon proceed at the suit of 
 the other Claimantf.. 19 Vic. o. 43, s. 255. 
 
 Cr.\IIfc'ANT NOT PROCEEDING TO TRIAL. 
 
 44. 0) If after appearance entered, the Claimant with- 
 out going to trial, allows to elaps ? the time fixed by the prac- 
 tice of the Court for going to trial in ordinary cases after 
 issue joined, (k) the Defendani may give twenty days' notice 
 
 act a plaintifF could not discontinue as to all the defendants to an action, without 
 the leave of the court or a judge. 
 
 (d) The notice may be in this form: "Take notice, that in this cause tlij 
 claimant discontinues the action as to C. D. one of the said defendants." 
 
 (fi) The Stat. 8 Eliz. cap. 2, s. 2, gives costs to a defendant against wliom a 
 discontinuance or nolle prosequi is entered: Cooper v. TiJ/in, 3 T. 11. 511. But 
 if the entry be made before notice of trial, it seems defendant will not bu 
 entitled to "the costs of brief or draft copies: Doe d. Poiihthwaile v. Ntak, 
 '2 M. «fe W. 732 ; nor of onsultation with counsel for defence : Jiivis v. liatton, 
 a Dowl. P. C. 164. Where the defendant obtained a verdict which was set 
 aside upon the ground of misdirection at the trial, and the plaintiff gave notice 
 for the second trial but before the time discontinued: Held hat defendant was 
 entitled to the costs of certain searches for documents useu at the first trial, 
 which would have been useful at the second, had not plaintiff discontinued: 
 Dantcl T. Wilkin et al, 8 £x. 155; see also JoUiffe t. Mundy, 4 M. di W. 
 502. 
 
 (/) Taken from C. L. P. Act, 1866, section 255, the origin of which was Eng. 
 Stat. 15 & 16 Vic. cap, 7C, s, 201. 
 
 {g) Cow or a Judge, Relative powers: see note w to section 48, C. L. P. 
 Act. 
 
 (A) It is enioted that upon application " an order may bo made," dec. A dls 
 cretion will be exercised to prevent unfair conduct or injustice. 
 
 {j) Taken from C, I. P. Act, 1866, section 256, the origin of which was Eng. 
 Stat. 15 <& 16 Vic. cap. 76, s 202. 
 
 ,(*) As to which see section 227, C. L, P. Act, to which this wctioa in mMJ 
 respects conforms. 
 
S.15.] 
 
 CONFESSIOU OF ACTION. 
 
 547 
 
 in action, without 
 
 f which was Eng. 
 
 icctiott in tDf^oy 
 
 (0 the Claimant (ij to proceed to trial at the Assizes next 
 after the expiration of the notice, (m) and if the Claimant 
 afterwards neglects to give notice of trial for such Assizes, or 
 to proci ed to trial in pursance of the said notice given by the 
 Defend lilt, and the time for going to trial has not been 
 exli'inli d by the Court or a Judge, (»*) the Defendant may 
 sij^n Judgment in the form No. 7, and recover the costs of 
 the defence. (r>) 19 Vic. c. 43, e. 256. 
 
 CONFESSION OF ACTION. 
 
 4J. (p) A sole Defendant or all the Defendants may con- ^nie dcfeud- 
 fess the action as to the whole or a part of the property, (q) thl'defeilli- 
 by giving to the Claimant a notice headed in the Court and ",',',';^'is""],e 
 cause, signnd by the Defendant or Defendants, and the si''na- ?,'''^''"', '•%• *■" 
 
 ' " •' » . rj the wliole or 
 
 tare attested by his or their Attorney, (/•) and thereupon the 'l"',';*;'!.""- 
 Claimaat may forthwith sign Judgment and issue Execution 
 
 (/) Sfu note p to section 227, C. L. P. Act. 
 
 (m) See note z to same section. 
 
 (fi) S(.'u note d to same section. , 
 
 (c) Scu note c to same section. 
 
 (p) Taken from C. L. P. Act, 1856, section 257, the origin of whicli was Eng. 
 Stat. 15 & 16 Vic. cap. 76, s. 2()3. 
 
 iq) Under the operation jj this and the followinar sections, one, more, or all 
 ilefeiidantti in ejectment may confess the action aa to tlie whole of the property 
 MiU'lit to be recovered, or any part thereof. 
 
 (') A jiidsjment on confession given by a tenant acting in colhision witli the 
 cl;iiiii;iiit will bo set iiside and tlie landlord permitted to defend : Do!> d Locke y. 
 Fm.klin, 7 Taunt. 9 ; Doe d. Draper v. Di/er, 3 Dowl. I . C. 6!)6. Plaintiffs under 
 tlienlil practice were nonsuited for not confessing lease, entry and ouster. Subse- 
 f|Mciifly to the trial defendant executed a cognovit. Held that this was a waiver 
 of any formal objection lie might otherwise take on a motion for a new trial : Doe 
 d K'trr cl al v. Shoff. 9 U. C. Q. B. 18u. It is not said when tlie notice which by 
 this section is apparently made a substitute may be served. It may be served at 
 Sly time. But where after notice of trial, defendant on 2!Hh October, served a 
 notice ijf confession on the plaintiflP at his residence, thirty miles from tiie assize 
 iiiwn, and on 30th October a verdict .vas taken, defendant not appearing and the 
 attorney being ignorant of the notice, the court under tlie eircuinstances refused 
 to set aside the verdict: Row \. Quinlan el al, 21 U. C. (^ li. 452. It is a ques- 
 tion wiictlier the notice here mentioned is intended as a substitute for cor/noviU in 
 fjettnieiit, and if so whether it shouH bo attested with all the formalities nttend- 
 w;; the e.vecution of a cogn(»vit. Our R. G. pr. 2rt, as to cognovits and warrants of 
 sttorncy, is not, in any manner, expressly restricted to " personal cctions." The 
 1^1?. Stat. 1 (fe 2 Vic. cap. Ho, s. 9, wlienco it is taken, though upon the face of 
 It restricted to personal actions in respect of warrants of attorney, was licld to 
 "tend to cognovits in ejcctmunt as in other forms of actions: Doe d. lites v. 
 llmll, 12 A. ii E. 696. 
 
 'vf 
 
ii. 
 
 h My ^v 
 
 518 
 
 & ' 
 
 And so may 
 one of sev- 
 eral defend- 
 ants defend- 
 ing for a 
 part for 
 which otliers 
 do not de- 
 fend. 
 
 And if others 
 defend as to 
 the same 
 part. 
 
 Proeeedings 
 need not be 
 
 EJECTMENT. 88. 46, 47, 4J. 
 
 for the recovery of possession and costs, ia^ e form No. 8 or 
 to the like eflFect. («)• 19 Vic. c. 43, s. 257 
 
 46- (0 In case one of several Defendants who defends 
 separately for a portion of the property for which the other 
 Defendant or Defendants do not defend, («) desires to confess 
 the Claimant's title to such portion, he may give a like notice 
 to the Claimant, (i;) and thereupon the Claimant may forth- 
 with sign Judgment and issue execution for the recovery of 
 possession of such portion of the property, and for the costs 
 occasioned by the defence relating to the same, and the action 
 may proceed as to the residue, (w) 19 Vic. c. 43, s. 258, 
 
 ■47. («) In case one of several Defendants who defends 
 separately in respect of property for which other Defendants 
 also defend, (b) desires to confess the Claimant's title, he may 
 give a like notice thereof, (c) and thereupon the Claimant 
 may sign judgment against such Defendant for the costs 
 occasioned by his defence, and may proceed in the action 
 against the other Defendants to Judgment and execution. ((/]■ 
 19 Vic. c. 43, 8. 259. 
 
 ENROLLING PROCEEDINGS. 
 
 48. (') It shall not be necessary before issuing execution 
 
 («) The jiulgment awards both possession and costs, and as to execution tliere 
 may be cither one writ or separate writs: section 28. 
 
 {() Taken from C. L. P. Act, 1856, section 258, the origin of which was Eii«;. 
 Stnt. 15 <fc 16, cap. 76, s. 204. 
 
 (u) The preccdinij; section applies only to confessions by a "sole dpfendant," or i 
 if several, by " all defendants." This, to one of several defendants," who defendi 
 separately for a portion of tlie property " for which the other defendauts do not 
 defend." Tiu case of a confession by one of several defendants, wlio defends in 
 Tespectof property, "for which tlie others also defend," is provided for in sk 
 tion 47. 
 
 {i>) See note r to section 45. 
 
 (w) See note a to section 45. 
 
 (a) Taken from C. L. P. Act, 1850, section 259, the origin of which was Ed? I 
 Stat. 15 & 16 Vic. cap. 76, s. 205. 
 
 (6) See iiote u to section 46. 
 
 (c) See note r to section 45. 
 
 {d) See note » to section 45. 
 
 («) Taken from C. L. P. Act, 1856, section 2G0, the origin of which was Edj.I 
 Stat 16 4fe 1.6 Vic, cap. 76, s. 206. 
 
«.49.] 
 
 EFFECT Of JUDGMENT. 
 
 549 
 
 issuing execution 
 
 in of which was En; 
 
 on any Judgment in Ejectment (/) to enter the proceed- enrolled be- 
 iDga upon any roll, but an incipitur thereof may be made t'l'on. 
 upon paper, shortly describing the nature of the Judgment, 
 and the Judgment may thereupon be signed, and costs taxed 
 and execution issued ; (g) but tue proceedings shall be entered 
 on the roll whenever the same becomes necessary for the pur- 
 pose of evidence or of appcling, or the like. (Ji) 19 Vic. 
 c. 43, 8. 260. 
 
 EFFECT OF JUDGMENT. 
 
 49. (0 The eflFect of a Judgment in Ejectment (J) shall ^f^^^l^^i 
 
 {/) In ejectment. TJiese words are not in the English C. L. P'. Act. Their 
 object is manifestly to restrict this enactment in its operation to the action of 
 ejectmeut. There being no such restriction in the section of the English C. L. P. 
 Act, whence ours is taken, it has been said to extend to judgments in all forms of 
 action, when entered under the English C. L. P. Act: Kerr's C. L. P. A., 1852, 
 6.206. See Frewen v. Lelhbridge, V W. R. 442, as to the entry of judgment when 
 not necessary to be enrolled. 
 
 ((/) The costs here intended are of course those betwe<!n party and party, ond 
 not between attorney and client: Doe v. Fdliler, 1-3 M. & W. 47. TnvnMnn nf 
 costs and entry of judgment are in general contemporaueouij acts : Pierce v. Derry, 
 4 Q. B. 63.5 ; and unless there be a waiver of costs, the entry of judgment is not 
 final until taxation of costs: lb. Notice of taxation should be given, but the 
 omisiiion to give it is no ground for setting aside the entrj' of judgment: Ptrry 
 T. Turner et al, 1 Dowl. P. C. 300; Lloyd v. Kent, 5 Dowl. P. C.125 ; Field v. 
 Partridge, 7 Ex. 689, however much it may be a ground for review of taxation : 
 Ilderlon v. Sill, 2 C. B. 249. But if upon any ground the judgment in ejectment 
 be irregular, there may be a writ of restitution : Doe d. Wkitlington v. Hards, 
 20 L, J. Q. B. 406. 
 
 [h] To bring error upon a judgment, thot judgment must be shown to be a 
 record. No judgment is a record until enrolled. 
 
 (i) Taken from C. L. P. Act, 1856, section 261, the origin of which was Eng. 
 Stat. 15 ck 16 Vic. cap. 76, s. 207. 
 
 (/) The intention of this section is to declare that a judgment in ejectment shall 
 not now have any other effect than one obtained when ejectment was a fictitious 
 action, TJie action always has been of a possessory character, and still continues 
 to be of tlwit nature. When ejectment was a fictitious proceeding, the judgment 
 vasthat John Doe, the lessor of the plaintiff, should recover his term. Jt is now 
 tiiat the plaintiff do recover possession of the land mentioned in the writ, or of so 
 iniicii tiiereof as in the opinion of the jury he may be entitled to rccovei\ 
 The direct issue raised and determined is the simple question of right to im- 
 mediate jrossession. This stands or falls upon strength of title. The peculi- 
 niity of tlie action is, that while it directly determines the right to possession, 
 it involves questions of title, and indirectly determines them. The nature of 
 tlie action, and the consequences of a recovery in it, have been thus explained: 
 "An ejectment is a possessory action, in which almost all titles to hind are tried. 
 Whether the party's title is to an estate in fee, fee tail for life or for j-ear.s, the 
 remedy is by one and the same action. In an action of ejectment the plaintiff 
 i^ecuvei'S only the possession of the land, and the execution is of the possession 
 
 «!*! 
 
550 
 
 KJEDTMENT. 
 
 [s. 40. 
 
 tr '■X~ i- - 
 
 be the saiiio as that of a Judgment in Ejectment obtained 
 before the tenth day of August, one thousand eight hundred 
 and fifty-six. 19 Vic. p. 43, s. 261. 
 
 only. But if tlio lessor of the plaintiff recovers only the possession of the innd. 
 it may be asked, how he becomes seized according to his title ? To which it may 
 be answered, tlwit when a person is in possession by title (as every person is who 
 enters in execution of n judgment in ejectment, because the law does no wron?) 
 the possession and title unite. For it is n rule of law, ' that when a man hnvin™ 
 a title to an estate comes to ihe possession of it by lawful means, he shnll be in 
 possession according to his title.' As where the title is to have a fee, he becomes 
 seized in fee; where the title is to have an estate tail, he becomes seized of an 
 estate tail, and so on, the law" casting the estate npon him according to his title;' 
 Tai/lor d Ath/na v. Horde, 1 Burr. 90, per Lord Mansfield. In truth and in siib- 
 stance, a judgment in ejectment is a recovery of the possession, not of tiie seisin or 
 freeiiold, without prejudice to the right, as it may afterwards appear even between 
 the same parties. He who enters under it can only be possessed accordinij to the 
 rigiit prnut lex poslutat. If he has a freehold, he is in as a freeholder ; if ho has a 
 chattel interest, he is in as a termor ; and in respect of the freeiiold, his pcssession 
 endures according to the right. If he has no title he is in as a trespasser, and, with- 
 out any re-entry by the true owner, is liable to account for the protits: " Ih ; see 
 also Aslin v. Parkin, 2 Burr. 665. This being the effect of a judgment in eject- 
 ment, it follows that no one action of ejectment can be pleaded to a subsequent 
 action for the same land, though between the same parties. The judgment enforces 
 only a riglit to possession, without conclusively determining the title of either 
 party: Cterke v. Rotcell et al, 1 Mod. 10. Hence there may be no end to trials 
 in ejectment. Whatever the result of an action may be, no one recovery cnn 
 be considered final between the litigants. It might be supposed that the nboli- 
 tion of the fictions in ejectment would have had the effect of subjecting it to 
 the same rules as ordinary actions in respect of finality of procedure. But 
 against this supposed intention there was an opinion given even upon the con- 
 struction of Stat. 14 <fe 16 Vic. cap. 114, the expressed design of which was to 
 place ejectment " ns nearly as may be on the same footing as other actions." 
 Upon a review of the statute it was said, "The intention of the Legislature 
 was clearly, as respects the judgment in ejectment when for the claimant, to 
 give no further force or effect to it than it would have had previous to the 
 statute:" Clubine v. McMuUeu, 11 U. C. Q. B. 255, per Burns, J. It is enacted 
 that if any person bring an. action of ejectment, after having brought a prior 
 action of ejectment, against the same defendant, or against any person tlirougii oi 
 under wiiom lie claims, the court may order such perstm to give security for rosts: 
 section 7t' of this act. Courts of equity possess a jurisdiction by entertaining 
 bills of peace to prevent vexatious ejectments, and by means of such jurisdiction, 
 when exercised after a recovery in ejectment, quiet titles at law : Bare/oni v. Fry, 
 bunb. 158; Leighton v. Leighton, 1 8tr.'404 ; s. c. 1 P. W. 671 ; s. c. affirmed in 
 House of Lords, 4 Bro. P. C. 378. 
 
 It may be noticed that the section under consideration draws no distinction 
 between a judgment in ejectment upon a verdict and a jiidgment by default. In 
 the first case the right of the claimant is tried and dttsrmiiidd; in the latter ciise it 
 is as it were confessed : Aslin v. Parkin, 2 Burr. 605. One ofFoct of a judjjment 
 against defendant remains to be considered, and that is as regards a claim or action 
 for mesne profits. The claimant who alleges himself to be entitled to possession 
 of a piece of land from a certain date, recovers it. This recovery is tantamount 
 to a Judgment that defendant was wrongfully in possession, and therefore liabl& 
 to plaintiff for rents and profits of the land while wrongfully withholding possea- 
 «ion. At present plaiutift may either recover mesne profits as a consequeace of a 
 
S.50.] 
 
 TENANT TO NOTIFY LANDLORD. 
 
 561 
 
 PENALTY ON TENANT NOT INFORMING LANDLORD. 
 .N i-i I tiT • • 11. f ■. rt'nnlty on 
 
 50. (/) Every tenant to whom a Writ in Kjectment (»i) teniint 
 has been delivered, (n) or to whose knowledge it comes, (o) WHtoV 
 shall forthwith give notice thereof to hia landlord, or to his ami' not"' 
 bailiff or receiver, (p) and if he omits so to do he shall forfeit iau<jk."d! ' ' 
 
 recovery in ejectment in one and tlie same action : section 60 ; or as to part by 
 lueftna of a separate and independent action: lb. In the event of a separate 
 action i)i'inj^ brougiit, defen'^^nt, if a party to tlie original ejectment or in privity 
 with the defendant in that action, is estopped from disputing plaintiff's possession 
 from the time alleged in the writ: Anlin v. Parkin. 2 Burr. 6(15; Doe v. Wriyht, 
 
 10 A. ife E. 763; Matthew v. Oahorne. 13 C. B. 919; Doe v, Welkman, 2 Ex. 308; 
 Turner V. Cameron's Coalhrook Steam Coat Co 6 Kx. 932; Arms'rong v. Norton, 
 2lr. L. R. 9ri; Earl of ListtwHl v. Greene, 3 fr. L. R. 2" '5; Nugent v. Phillips, 
 8lr. L. 11. 17; Wilkinson v. Kirby. 15 O. B. 430; Stem v. Sieen. 21 U. C. Q. B. 
 454; but when brought against a person in possession of the land who was no 
 part)* til the ejectment, unless such person bo connected with the ejectment by 
 soiije evidence, the recovery in that action is no evidence against him : Denn v. 
 Whil' '■I iix 7 T. R. 112; Doe v. Harvey 8 Bing. 239. And if plaintiff seek to 
 recover n)e.«ne profits from a day anterior to that mentioned in the writ, he must 
 prove his title, and that such title would have enabled him tu have maintained 
 trespnss: Litchfield v. /ie-xli/. 5 Ex. 939: Turnery. Cameron's Coalhrook Sicam 
 Co'il I'o lb 932. But wherever a rccovi.'ry in ejectment would be an e.stoppel, 
 in an iieti in for mesne profits, it matters not whetiier that recovery be had by 
 verdict or through a judgment by default: WH/cmson v. Kirbi/ JS G. B. 43(>. 
 A defendant taken in execution on a judgment in ejectment has, since the C. L. P. 
 Act in iMiglund been held entitled, under the 48 (»eo. III. cap. 123, s. 1, to bo 
 (lischiirited after a twelve months' •imprisonment: IJum^ihrevs v. Franks. 3 C B. 
 .N. S. 7t)5. 
 
 (/) Taken from 0. L. P. Act 1856, section 262, the origin of which was Eng. 
 Stat. 15 it 16 Vic. cap. 76, a. 2n9. Substantially the same as Eng. Stat. 
 
 11 Geo. II. ci\p. 19, 8. 12, whieh is a remedial law, and enacted for more effec- 
 tually securing against frauds by tenants : Crocker et al v. Fothergill, 2 B. & Al. 
 659, /)«)• Hay ley, J. 
 
 (m) The Stat, of Geo. TI. w.is held to extend only to ejectments which are 
 inciinsistent with the landlord's title: Ihukle;/ v. Buckle//, 1 T. 11. 647. Tlierefuro 
 ill eji'et;iient by a mortgagee against a tenant of the mortgagor to enforce attorn- 
 ment, that statute wa.n held to bo inapplicable: Ih. In case a mortgagor in 
 possession makes a lease after the execution of the mortgage, reserving rent, the 
 ui»rtt;ni;i'e cannot, by merely giving the lessee notice of the mortgage, and that 
 prinuipal and interest are in nrrear, and rcquii'iiij; sueh lessee to pay the rent to 
 liiin, uiiike the lessee his tenant, or entitle himself to distrain for rent suhse- 
 qiientlv accruing under the terms of the lease: Kvaus v. Elliot vt at, 9 A. & 
 E, 34i 
 
 (") Intending a personal service : see note i to section 6. 
 
 (o) Intending a service on a wife, child, or other member of the tenant's family, 
 with suh.^equent notice to him ; see note i to section •>, 
 
 (p) No precise form of notice is made necessary. The following may be u.sed: 
 "Take notice that you will receive herewith a copy of a writ of ejectment which 
 has been served for the recovery of the possession of the land and premises at, 
 itc,, of which I am your tenant.'* 
 
 Ttex' 
 
552 
 
 .1.: .EJECTMENT^ l(T:0^--iL 
 
 [8. 51. 
 
 '■//■, 1 
 
 
 
 m. 
 
 Landlord 
 having 
 power to 
 re-enter for 
 non-pay- 
 ment of 
 relit, may 
 
 to the person of whom he bolda, the value of three (y) years 
 improved or rack rent (r) of the premises demised or holden 
 in the pobsession of such tenant, (s) to be recovered by action 
 in any Court of Common Law having jurisdiction fur the 
 amount. (<) 19 Vic. c. 43, s. 262. 
 
 EJECTMENT BY LANDLOHD." 
 
 tSI. (o)' In all cases between landlord and tenant, as often 
 as it happens that one half year's rent is in arrear, and the 
 landlord or lessor to whom the same is due, hath right by law 
 to re-enter for the non-payment thereof, (p) such landlord or 
 
 (q) Tills statute, like that of Geo. II, does not give treble damages, but only 
 directs how single damages shall be ascertained : Crocker v. Folheryill, 2 B. i 
 Al. C62, note a. An application for treble costs of suit was therefore refused: Ih. 
 
 (r) The improved or rack rent here mentioned is not the rent reserved, but 
 such a rent as the landlord or tenant might fairly agree on at tiie time of the 
 service of the writ of ejectment in case the premises were then to be let: Crocktr 
 v.FothergiU,i'B.iiA\.^^2. 
 
 (s) The tenant shall forfeit three years improved or i.ck rent, not merely of fk 
 premises described in tlie writ of ejectment, but of the premises demmd to him: 
 Crocker v. Folhcrgill, 2 B. & Al. 600, per Bayley, J. Upon a demise by lease of 
 certain lands, together with the mines under them, with liberty to dig for ore ia 
 other mines under the surface of other lands not demised, the tenant fraudulently 
 concealed a declaration in ejectment deliverod to him and suffered judgment by 
 default. The declaration did not mention mines at all ; but the sheriff in execu- 
 ting the writ of possession, by the concurrence of the tenant, delivered possession 
 of the premises demised to the tenant, and also of those mines in which he had 
 liberty to dig: Held that although the latter could not be recovered under the 
 declaration in ejectment, still that the tenant by his own act had estopped liim- 
 self from taking that objection, and that in an action for the value of three years' 
 improved rent, the landlord might recover the treble rent in respect not only of 
 the demised premises, but of the mines in which the tenant had only a liberty to 
 dig : lb. 652. 
 
 (<) It maj'^ be that a party suing under this act in a superior court to recover 
 an amount within the jurisdiction of an inferior court will deprive hliiiself of 
 superior court costs, unless the judge before whom the trial takes place shall 
 certify for the same : see section 328 C. L. P. Act, and notes thereto. 
 
 (o) Taken from C. L. P. Act, 1856, section 263, the origin of which was Eng, 
 Stat. 15 & 16 Vic. cap. 76, s. 210. Substantially the same as Eng. Stat. 4 Geo. 
 II. cap. 28, B. 2, 
 
 {p) By the common law It was necessary for the person claiming title to lands 
 and tenements in all cases to make an actual entry upon tliem in order to support an 
 ejectment. In the case of a lease, therefore, as the landlord could not enter and 
 take the actual possession until the lease expired, it became usual to Insert a clause 
 that In case the rent sho :ld be behind and unpaid at a certain time, the lessor 
 should have the right tore-enter: Adams on Ejectment, 120, 121; and kcc Ctn. 
 Stat. U. C. cap. 92, Sch. No. 2, Form 9. This statute applies only to cases where 
 the lease contains such a clause: Doc d. Dixon v. Roe, 7 C. B. 134. And where it 
 is made to appear that the landlord had a power to re-enter in respect of the non- 
 
51.] 
 
 EJECTMENT BY LAIfDLORD. 
 
 553 
 
 ■which was Eng, 
 
 lessor may, without any formal demand or re-entry, (q) serve rpcover poa- 
 
 j Writ in Ejectment for the recovery of the demised pre- ojSi'enT. 
 
 mises, or in case the same cannot legally be served or no 
 
 tenant be in actual possession of the premises, then such 
 
 landlord or lessor may affix a copy thereof upon the door of 
 
 any demised messuage, or in case such action in Ejectment 
 
 be not for the recovery of any messuage, then upon some 
 
 notorious place of the lands, tenements or hereditaments ; 
 
 comprised in the Writ, and such affixing shall be deemed 
 
 legal service thereof, (?•) which service or affixing of the 
 
 payment of a holf-yenr's rent at the time of serving the ejectment: lb. The ri};;ht 
 of entry must be shown to be absolute and the lease to be thereby avoiilciJ: Dot 
 I Darke v. Bowditch, 8 Q. B. 973. Thus the statute was held not to apply in a 
 case wliere the condition in the lease was that on non-payment of rent in twenty 
 (lays ftfter the time limited for nayment thereof, the landlord might enter on the 
 premises " till it be fully satistied :" lb. The landlord has a right to avail him- 
 self of the statute, provided half a year's rent be due, and ho equally has that 
 riglit if ten years' rent be due: Cross et al v. Jordan, 8 Ex. 150. Three quarters' 
 rent being in arrear under a lease containing a clause of re-entry on non-payment 
 of rent within twenty-one days after each quarters's day, the landlord on 2ud, 
 October distrained, and after sale of distress there remained due more than a 
 quarter's rent but Zew than a half year's rent: /7eW ejectment not maintainable 
 under tiiis section: CoaUworth et al v. Spokes, 10 C. B. N.S. 103. The right of 
 entry where it exists will not be waived by distraining for the rent within 
 twenty-one days allowed for its payment, and continuing in possession until after 
 the expiration of the twenty-one days: Doe d Taylor v. Johnson, 1 Stark. 411. 
 liiit may be waived by bringing an action for rent accrued due after the for- 
 feiture: Vendij V. Nicholl, 4 C. B. N.S. 376. A more demand of subsequent rent 
 is not necessarily such a waiver: Bl.yth v. Dennett, 13 C. B. 178. Actual entry is 
 not necessary to enable the party to take advantage of such a clause: Goodright 
 d. Hare v. Cator et al, 2 Doug. 477. 
 
 (?) By the common law, when a landlord reserved a right of entry in a lease 
 in ease of the non-payment of rent, it was necessary for him to make a demand of 
 the precise sum in arrear: Fabian v. Winston, Cro. Eliz. 209; eitiier in person or 
 hy attorney lawfully appointed by deed : Doe d West v. Davis, 7 East. 'M:\. The 
 demand was required to bo made on the premises: Co. Litt. 202, a; though no 
 person was residing there: Kidwelh/ v. Brand, 1 I'lowd. 71. To do away with 
 with the necessity of complying with these and other prerequisites to eji.'clment 
 at the common law, the Stat, of Geo. II. was passed: Doe d. Forsler v. Wandlass, 
 1 T. R. 117. It ia not necessary to make any demand in order to entitle a plaintiflf 
 to recover in a case brought within the statute, although tlie proviso for re-entry 
 be expressed to bo in case of the rent in arrear being lawfully demanded : Doe d. 
 Mob field el al v. Alexander, 2 M. & S. 525 ; see also Doe d. Lawrence et al v. 
 Shawcross, 3 B. tfe C. 752. It may, however, be otherwise if the lease contain an 
 express covenant that the lessor will not enter without demand: Doc d. Earl of 
 Shrewsbury v. Wilson, 5 B. ife Al. 385, ^er Abbott, C. J. 
 
 (r) If the action be under this section for the recovery of a dwelling-house and 
 other premises demised by one lease, if the dwelling-house be unoccupied and the 
 rest of the premises in the oecupaticn of a tenant, service of the writ may be 
 effected bv personally serving the tenant with a copy and affixing another on ths 
 
564 
 
 
 V 
 
 Ti 
 
 '"■' ■ U'l 
 
 And how 
 Kiich ri; lit 
 Hliall liii 
 cxeruisuU. 
 
 EJECTMENT. [s. 50 
 
 Writ shall stand instead and in place of a demand and 
 re-entry. («) 19 Vic. c. 43, s. 263. 
 
 tS9. (<) In case of Judgment against the Defendant for 
 non-appearance, if it be shown, by aflBdavit, (u) to the Court 
 wherein the action is depending, (v) or be proved upon the 
 
 front door of the dwelling-houso: Lord Clinton v. Wahi, 2 Jur. N.S. 1096; see 
 also note i to section K. 
 
 (») This means tliat the service shall be in the place of a legal demand made on 
 the day on wlii'-li it ought to bo made liy the common law; Doe d Lnwrencut 
 al V. Shawcronn. 3 B. &, C. 754, pur Bayley, J. ; and tlierefore it was held to \w no 
 ground of nonsuit in ejtMitment that the declaration was served on a day siihse- 
 
 3uent to the day on which tiie demise was hiid, and being after the rent iH-cnma 
 ue, because the title of the lessor must be taken to have accrued at common In^r 
 by non-payment of the rent: [h 752. The effect of the btatute is to dispense 
 with till' necessity of a demand by the landlord, and not to put tiie tenant in a 
 worse situation tlian he would have beei if he had tendered the rent wlien it 
 ougiit to have been paid. Tiie service of a writ in ejectment is substituted for 
 the demand wiiich was required at common law. At common law there cimld 
 have been no legal title in the landlord until that demand had been made. The 
 statute is beneficial to the tenant as well as to the landlord. It relieves the latter 
 from the necessity of making a demand with all the precision required at coininoa 
 law, and the tenant incurs no forfeiture until the writ of ejectment is served upon 
 him ; and if at tiiat time lie is ready to pay the rent, although he did not tender it 
 when it wns due, it gives him the saiuo benefit as if he had tendered it at that 
 time : lb. 750, per Ilolroyd, J. 
 
 (<) Taken fro.n the latter part of C. L. P. Act 1856, section 2fi3, the origin of 
 which was Ing. Stat. 15 & 16 Vic. cap. 76, s. 210. Substantially the same as 
 Eng. Stat. 4 Gto. II, cap. 28, s. 2. 
 
 (!t) An aftici'ikit stating, inter alia, that three quarters of a year's rent wero duo 
 from the tenant before the copy of the writ was affixed to the premises, and tlwt 
 at the time the copy was affixed " no sufficient distress was to be found upon the 
 said premises, countervailing the said arrears," is sufficient: Croim tt al v. Jordan, 
 8 Ex. 14'.). This decision overrules Doe d. Powell v. Jioe, 9 Dowl. P. II 548; see 
 further JJoe d. Greltou et al v. Jioe, 4 C. B. 676. It is not necessary to state in the 
 affidavit, if the premises are shut up, that search has been made and no suttieient 
 distress found: Romilif v. Fifcrofl, 4 W. R. 26. In such case it is enougii to state 
 the fact that the premises are shut up, and that dep(ment has been informed that 
 there is no sufficient distress: lb. The landlord, however, should if possible 
 produce the lease as being the best evidence of its contents: Levincomplev. leucel, 
 8 U. C L. J. 185. In one case the lessor having recovered in a former ejectment 
 under the statute of Geo. II. the lessee, after the lapse of several years brou!!;ht 
 a second i-jectment on the title of his lease ; and the proceedings in the tirst 
 ejectmt'nt Ijeing in all other respects confessedly regular, he insisted that he was 
 entitled to recover because no affidavit was produced which hod been made in 
 conformity with the act : Held that it was not incumbent on the landlord to 
 prove the regularity of all the circumstances upon which his judgment and execu- 
 tion were founded, but that the judgment must be taken to have been a right, 
 reguLir, and good one, as nothing appeared to the contrary : Doe d. Hitchins et al 
 V. I^wIh, 1 Burr. 614. 
 
 (v) The motion is absolute in the first instance: Yovtni v. Keen et al, 2 C. B. 
 
 N. S. 384. 
 
S.-0 
 
 52.1 
 
 EJECTMENT BY LANDLORD. 
 
 555 
 
 N.S. 1096; see 
 
 em et al, 2 C. B. 
 
 trial in wse tbe Defendant appears, (w) that half a year's 
 rent was due before the said Writ was served, and that no 
 sufficient distress was to be found on the demised prcuiisca 
 countervailing the arrears then due, and that tRe lessor h:id 
 power to re-enter, (x) the lessor shall recover Jud<j;iiient and 
 hve execution in the same manner as if the rent in arresir 
 had been legally demanded and a re-entry made ; (^) but if a 
 verdict pass for the Defendant, or if the Claimant be non- . 
 
 (k) Tliia section, like tlio statute of Geo. II. prescribes two oases, viz., one in 
 case of judgment by defnnlt, and the otlier in case of tiie action coining to a trial. 
 In tiie former case an affidavit must be made in tlie court wliere tiie suit is 
 depending, tiint half a 3'ear'8 rent was due before tiie service of the writ, and 
 that no sufficient distress was to be found upon the premises countervailing the 
 arrears then due, and titnt the plaintiff hod power to re-enter. In the lutler case 
 the same thing must be proved upon the trial: 1 Wms. Saund. 287, f. 
 
 (i) The insufficiency of tlie distress must be established, and in order thereto 
 in ffoiieral proof of a search must be adduced : Doe d. Forsfer v. WoikIIiixh, 7 T. 
 R. 117. Every part of the premises must be searched: Jiieit d. J'oneil v. Khff 
 d ah Forrest, 19. The words " no sufficient distress to be foniid on the demised 
 premises" appear to be pertinently introduce! into the statute, because it is not 
 enoii:j;li tliat the teimnt sliould have tiiat secreted on the demised premises which 
 would be sufficient to countervail the amount of rent due, but the property 
 must be so visibly on the premises that a broker going to distiain on the tenant 
 would, using reasonable diligence, find it so as to be able to distrain it: Doe d. 
 Ikvenoii v. Frankn, 2 C. <t K. 679, per Ivrle, J. ; see also Doe d. thippriidale d at 
 T. Di/fon el al, M. <fe M. 77 ; Doe d. '.'ox v. AV, 5 0. & L. 272. (Joods of a person 
 in charge of a part of the property- for plaintiff need not to be taken itito account 
 aa distrainable : W'/ieeltr et nx. v. Stevetisou el al, 6 II. cfe N. 15.5. If llie londloi-d 
 show that he was prevented from entering on the premises to distrain, hi' will bo 
 entitled to recover in ejectment, without showing tlwit there was actually no suf- 
 ficient distress upon the premises: Doe d. Ch'ippevdale et nl v. Di/sim it al, 1 M. & 
 JI. 77. Where the outer (l.)ors are locked up, so that the landlord cannot get at 
 the premises to distrain, there is no available distress and eoiisequentiy no suffi- 
 cient distress within the meaning (jf the act: lb. Under siicii cii-cumstaiices an 
 afiidavit of belief th it there was no sufficient distress on the premist-s, will be suf- 
 ficient: Doe d. Cox V. Hoe. 5 D. & L. 272. If the landlord make out a pi him facie 
 case tlrnt there was no sufficient distress on the premises, the onnx of showing the 
 contrnry will be slilfted to the tenant : Doe d. Smelt d al v, Fkc/iuh. 1 .'i ICast. 286 ; 
 Romih/ V. Fi/iroft, 4 W. 11. 20. Whenever tliei'e is a sufficient distress the land- 
 ord must proceed at common law as before tlie statute: Doe d. FovnUr v Wand- 
 !m, 7 T. R. 117. But by special consent of the pnrtii-s, a recovery may be made 
 for default of payment of rent, witliont the aid of the statute, and without any 
 demand of the rent according to the conimon law : Doe d. I/arrix v. Ma.^teyn, 2 iJ, 
 <t C, 490. Thus, if in the lease there be n proviso that in case of the rent being 
 in nrrear for twentv-one days, the lessor may re-enter, " althougli no legal or for- 
 mal demand should be made" for payment thereof: lb, 
 
 (//) Premises consisting of a cottage and garden had been let to a tenant who 
 died, and subsequently a stranger took possession of the garden, but the cottage 
 was left vacant. Tiiere being one half year's rent in nrrear, and no sufficient 
 distress to be found upon the premises, countervailing the arrears of rent, a writ 
 "f ejectment was served upon tlie person in possession of the garden, and a copy 
 
 •M 
 
 ■r.i^ 
 
 'J. 
 
?■ :1' 
 
 556 
 
 EJECTMENT. 
 
 'H ' 
 
 \i I 
 
 
 i m 
 
 ' i 
 
 [88. 53, 54. 
 
 suited, the Defendant shall recover hie costs, (?) 11) Vic. 
 43, s. 263. 
 
 per- 
 
 Congo- S9- (a) In case the lessee or his a8si<;nec, or other 
 
 tVe^exeri'uc son claiming or deriving title under the said lease, {!>) permits 
 zijiiy and suffers judgment to be had on such trial and eseemion 
 to he executed thereon, without paying the rent and avrears 
 together with full costs, and without proceeding for relief in 
 equity within six months after execution executed, (»•) then 
 and in every such case the said lessee and his assignee and 
 all other persons claiming and deriving under the said lease, 
 shall be barred and foreclosed from all relief or remedy in law 
 or equity, other than by bringing a Writ of appeal for reversal 
 of such Judgment, and the said landlord or lessor shall 
 from thenceforth hold the demised premises discharged from 
 such lease, (c?) 19 Vic. c. 43, s. 2G3. 
 
 54:. (e) Nothing hereinbefore contained shall bar the right 
 of any Mortgagee of such lease or any part thereof, who is 
 
 As to mort- 
 gagees of 
 lease. 
 
 
 of the writ affixed to the door of the cottnge, which was unoccupied : //tW, ser- 
 vice sufficient and tliit claimant was at liberty to sign judgment in ejectniunt to 
 recover the whole premises: Lord Vlintun v. Wales, 28 L. T. llcp. 106. 
 
 {z) See section 27 and notes thereto. 
 
 (o) Taken from the latter part cf C. L. P. Act, 1856, section 263, the origin of 
 which was Eng. Stat. 15 & 16 Vic. cap. 76, s. 210, substantially tite same astliu 
 Eng. Stat. 4 Geo. II. cap. 28, s. 2. 
 
 (6) See note h to section 55, and note r to section 56. 
 
 (c) No relief can be had in equity against any forfeiture, except one cniised l)y 
 non-payment of rent of a sum certain : see Bracebridye v. Biicklei/, 2 I'ricc, 20ii; 
 Waaman v. Caloraft, 10 Ves. 67 ; Bowser v. Colby. 1 Hare, 109 ; Green v. Hridgai, 
 4 Sim. 96. The time limited for relief is " six montlis after execution executed. 
 The months intended must be held to be calendar months: Con. Stat. U.C. cnp. 1 
 B. 13 ; see Doivling v. Foxall, 1 Ball & B. 103 ; see also note i to section 55 of this 
 act, and section 342, C. L. P. Act, and note^ thereto. 
 
 (rf) The true end and professed intention of this enactment is to take off from 
 the landlord the inconvenience of his continuing always liable to the unci i't;iiiity 
 of possession (from its remaining in the power of the tenant to offer him a com- 
 pensation at any time, in order to found an application for relief in equity), and 
 to Umil and confine the tenant to six calendar months after execution execiitud for 
 ' feis doing this, or else that the landlord should from thenceforth hold the deiiiisoJ 
 premises discharged from the lease: Doe d. Ilitchings et al v. Lewis, 1 Burr. 013, 
 per Mansfield, G. J. 
 
 (e) Taken from the latter part C. L. P. Act, 1856, section 263, the origin of 
 lich was Eng. Stat. 15 it 16 Vic. cap. 76, s. 210, substantially the same as Eng, 
 
 wliich 
 
 Stat. 4 Geo. 11 
 
 cap. 28, s. 2. 
 
 I. 
 
I. 55.] 
 
 ItELTEF OF TENANTS IN FQUITY. 
 
 WT 
 
 not in possession, so as such Mortgagee do, within six months 
 after such Judgment obtained and execution executed, pay ail 
 rent in arrear and all costs and damages sustained by such 
 lessor or person entitled to the remainder or reversion, and 
 perform all covenants and agreements which on the part 
 and behalf of the first lessee are to be or ought to be per- 
 formed. (/) 19 Vic. c. 43, s. 263. 
 
 RKMEP OF TEXANTS IN EQUITY. 
 
 SS. (ff) In case the said Icspf"^, his assignee or other rmrcodinKii 
 
 d. . . 1 . .... • 1 i • 1 •, if till' toiiiin 
 
 ^ aiming any right, title or interest in law or equity ..jc, tci Hook 
 
 of, in or to the said lease, (/t) proceeds for relief in any Court J.I|uUy." 
 
 of Eijuity (i) within the time aforesaid, (//) such person shall 
 
 not have or continue any injunction against the proceedings 
 
 at law on such Ejectment, unless, within forty days next after 
 
 a full and perfect answer has been made by the Claimant in 
 
 (/) This a mortgagee might do independently of this section, aa being " a per- 
 son claiming or deriving title under the said lease:" see Malone v. GeraglUy, 
 5 Ir. Eq. R. 549; Kelly v. Staunton, 1 Hog. 393; see st.tion 53. 
 
 (ff) Taken from C. P. L. Act, 1856, s. 264, the origin of which was Eng. Stat, 
 If) f: 16 Vic. cap. 76, s. 'ill ; substantially the same as Eng. Stat. 4 Goo. II. cap. 
 28, 8. 3, which is similar to Ir. Stat. 11 Anne, cap. 2, s. 3. 
 
 (A) An equitable mortgagee of the tenant's interest is entitled to ask the relief: 
 see Malone v, Geraghty, 5 Ir, Eq. Rep. 549, 
 
 (i) Courts of equity have from a very early period relieved tenants from forfei- 
 tures owing to non-payment of rent, upon payment of arrears with interest and 
 all expenses: Sanders v. Pope, 12 Ves. 289. A landlord has no right to enter 
 upon the property forfeited by force, and a landlord who does so must, accord- 
 ini^ to the ruling of courts of law, withdraw from possession : Newton et ux v, 
 Harland el al, 1 M. «& G. 658, per Tindal, C. J. ; see also Hillary v, Oay, 6 C. A 
 P. 284. ■•, 
 
 (ii) i. e. Within six calendar months after execution executed : see note C to 
 section 5.S. The day on which the habere is executed is not to be included in the 
 cnmpntiition : Bowling v. Foxall, 1 Ball & B. 193. Where a right would be 
 divested or a forfeiture incurred by including the day of an act done, the compu- 
 tation will generally be made exclusively of it : lb. In a redemption suit the bill 
 charged that the writ of possession was executed " on or about the 18th November, 
 and possession was on that day taken." The answer stated " that it is not true, 
 as in the bill untruly stated, that the said habere was executed on thu 1 8th November, 
 for tiiat defendant believed it was executed on the 17th November: '" Ihld, that 
 the precise day of the execution of the habere was sufficiently put in issue : Fitz- 
 gerald v. Ilumey^ 3 Ir. Eq. R. 319, The litigious conduct of a tenant in dtfcjding 
 an ejectment for non-pa3'ment of rent, does not disentitle him to relief upon a bill 
 for redemption, nor to the costs of that suit if he be otherwise entitled to them: 
 see Neweiiham et al v. Mahon et al, 3 Ir. Eq. R. 304. Where plaintiff in equity 
 established a waiver on the defendant's part, the Irish statute was held to be out 
 of the question, and it was therefore held tliat it was not essential that the bill 
 
 ,,:;ifli 
 
 ill «iii 
 
558 
 
 KJECTMENT. 
 
 [s. 55. 
 
 ,vi tn. 
 
 if Hllfll 
 
 idKrci'ilings 
 
 lit' lift IT 
 
 execution 
 «xuuuti'U. 
 
 guch Ejectment, (./) he brings into (^»urt ami lodjjies witli tlio 
 proper officer such sum of monoy ns the lessor or lundlorj 
 in his OMHWer swears to bo due and in nrrciir over and abovo 
 all just allowances, (it) and also the eoHts taxed in tlic suiil 
 suit, (/) there to remain until the hearinfj of the ciiuhc, or to 
 bo paid out to the lessor or landlord on good security, sub- 
 ject to the decree of the Court; (m) and in case such proceed- 
 ings for relief in equity are taken within the time at'orosaid 
 
 should ho filed within the six montlis, as providt-J by the net of ParliutiK'iit: see 
 Butler V. liurke, 1 Dr. A Wul. 380. 
 
 (J) As to computation of time: see Taylor's Con. Orders, .319. 
 
 {k) See Mc.fneherny v. Galivai/, Jon. A, Car. 24ft. Qu How fur tliis ennctmont 
 applies to tlic case of a penal rent reserved ns an iiulcinnity, and to answer a pur 
 ticular purpose? See JJume v. Kciit, 1 Ball Jt li. 558. 
 
 (/) Altliouijh the general rule is to make the party sookiii!; a rcdein|itii)n jmy 
 the costs of suit, the court has jurisdiction to look at the landlord's conduct, ami 
 throw the costs on him, accordiiij^ to its discretion: see Gerar/ltf)/ v. Mitlone el «/, 
 1 II. L. Cas. 81, affirming 8. c. 5 Ir. ICq. R. 649; see (dso Fiizijrraid v. /Iiimci/, 
 8 Ir. Eq. K. 319; Mclneherny v. Galwuy, Jou. & (Jar. 247; S/teridan v. Uamierli/, 
 Beat. 249. 
 
 (m) Oa a Ijill to redeem under the Irish statute, it was ludd to be iniperntivft 
 to relieve upon the conditions retpiired by it being complied witli; and tlu' court 
 would not ailiiiit extrinsic considerations, sucli as brcaehes of otiter covcniuiU in 
 the lease, to be brought forward by tlio lessor to affect tlie e(piity of redciiiptiDn 
 of the tenant's interest evicted for non-payment of rent: see Hwanton v. Hi'j'js, 
 Beat. 240. It is important to have settled forms of decrees. In this cas,- tliu 
 decree strictly followed tiie words of the Irish statute 11 Ann, cap. 2: Ih. In a 
 redemption suit by a tenant against his landlord, it appeared tlmt a mortgay;c(! in 
 possession of the tenant's interest had uot been served with the ejectment, unil 
 that on executing the writ of possession the landlord made a six montlts lease to 
 him. On tlio expiration of that lease the mortgagee refused to deliver possession 
 to the landlord, and retained it with the privity and consent of the tenant. Tiie 
 landlord thereupon brought an ejectment on the title to evict the mortgagee and 
 the persons in possession, and recovered judgment therein, but did not execute 
 the writ of possession. The tenant had made the mortgagee a party defendant to 
 his suit, and charged that he and the landlord wers in collusion ; but the prayer 
 of the bill was simply for a redemption. The usual accounts in a redemption suit 
 were directed, and also an account of what the mortgagee, without wilful dtfault, 
 might have received. The master reported that the entire amount of the bead 
 rent, including that for which the ejectment was brought, was due; that the niort- 
 
 fngee might, without wilful default, have received much more than the amount of 
 eadrent; and that, without wilful neglect, he did not receive anything: Held, 
 first, that it was not wilful neglect in the landlord not to have taken possession 
 under the judgment in ejectment on the title ; secondly, that though the mortgagee 
 was bound to apply the rents, in the first place, in payment of the head rent, yet 
 as no account had Dcen taken of the sum due on foot of the mortgage, the plaintiff 
 wAs not entitled to a personal decree against the mortgagee, to be repaid the sums 
 which he should be obliged to pay the landlord for arrears o' rent: Reade v. 
 J9e Montmorency, 6 Ir. Eq. R. 40. The admission in the bill, of rent being due to 
 the landlord, does not entitle him to bo paid the sum lodged in court if the bill 
 
[8. 55. 
 
 ^les wiih tlio 
 or liuidlord 
 -T and above 
 1 in the suid 
 c'liUHc, or to 
 3curity, sub- 
 uch proceed- 
 me arorosnid 
 
 Brliumi'iit; see 
 
 this enftctmotit 
 ) iiiiswcr a [mr- 
 
 (Hleinption pay 
 "rt oimiluct, !»ii(l 
 \r. Maloiif el id, 
 aid V. Iliis'n/, 
 'un V. CamKrly, 
 
 ) be iniiicrntive 
 ; and till' court 
 ir covcniinls in 
 of rc'ilciniition 
 aiiton V. Iii:i!/s, 
 tliia ciHi^ tliu 
 ,). 2: /i. Ill a 
 a niort'jii;;!*!'- in 
 ejectnii'iit, and 
 noiiths k'lisu to 
 iver poHsessiim 
 e teiimit. Tlie 
 mortgagee and 
 id not execute 
 ty defendant to 
 3ut the prayer 
 •edemptiofi suit 
 _ wilful default, 
 lit of the head 
 that the niort- 
 the amount of 
 lything: /Wi 
 ikcn possession 
 . the mortgagee 
 liead rent, yet 
 re, the plaintiff 
 epaid the sums 
 rent: Keade v. 
 _it being due to 
 ourt if the bill 
 
 8. 50.] 
 
 DISCONTINUANCE UPON PAYMENT OP RENT. 
 
 659 
 
 and after execution huB been executed, (») the losHor or 
 landlord shall be uccouutuble only for bo luuoh as ho rotilly 
 imllxindjide without fraud, deceit, or wilful ne<;leot, hns ninde 
 of the demised premises from the time of his entering into tho 
 actual pu-ssession thereof, {o) and if whut ho han bo mado bu 
 less than the rent reserved on the «aid Icano, then tho ^uid 
 bsce or his assignee, before being restored to his possession, 
 shall pay such lessor or landlord what tho money so by him 
 made fell short of the reserved rent fur the time such lessor 
 or landlord held the lands, {p) 19 Vic. c. 43, s.- 264. 
 
 STAY OP PllOCKKUINQS IF UKNT PAID. 
 
 56. (q) If tho tenant or his assignee (r) at any time 
 
 l)c dismissed: see G'Kuffe v. Lennthy, 4 Ir. Eq. R. 323. In a rcdeiiijition suit, 
 after the coming in of defondont's answer, the plaintiff entered a side bur rule 
 dismissing his bill, and afterwards moved for tho balance of tho sum lodged in 
 court, lifter payment thereout of tho defendant's toxed costs: Held, that tho 
 motion siiould bo granted, nnd that tho landlord might have proceeded at law 
 for iiis rent, pending tho proceedings ia the redemption suit : lb. ; sue also 
 CaUaghan v. Lord Lismore, Beat. 223. 
 
 (n) Sec note t to this section. 
 
 (o) A landlord having rightfully evicted his tenant for non-payment of rent, is 
 not, when called upon to restore possession and to account, chargeable with the 
 wliole rents at which the lands were lot, but only with such rents as during his 
 liosscssioii he received; Callaghan v. Lismore, Beat. 223 ; and if in actual occa- 
 liHtion iiiniself, according to the section here annotated, ho shall bo accountable 
 "with 80 much and no more as he shall really and bond fide, without fraud, deceit 
 or wilful neglect, make of the demised premises," itc. On a lease containing u 
 ciftuse of distress and provision for entry in case of no sufficient distress, an eject- 
 ment for non-payment of rent was brought, and judgment by default obtained, 
 and tlie landlord sued out a writ of possession and went into possession. After 
 iiringiiig several ejectments unsuccessfully to recover possession, the tenant filed 
 nbill for redemption and relief against the forfeiture; Held, that ho was entitled 
 lO redemption, the landlord accounting for the profits while in possession, and tho 
 ^ennnt paying the rent, interest and costs; Canny v. Hodgeni, llay & J. '(09. 
 
 (p) Tho plain intention of this provision is, that in the event of a tenant being 
 relieved against a forfeiture, the jHJsition of both parties concerned siiall be mado 
 Rs nenrly as possible the same as if no forfeiture had taken place, and no cause of 
 forfeiture ever existed. 
 
 (q) Taken from C. L. P. Act 1856, section 265, the origin of which was Eng. 
 Stat. 15 &. 16 Vic. cap. 76, s. 212. Substantially tho same as Eng. 8tat. 4 Geo. 
 H. c. 28, B. 4. The courts even before the statute of Georgo II. exercised an 
 equitable jurisdiction to stay proceedings in ejectment for uon-paynieut of rent, 
 upon jiaynient of arrears of rent and costs : Phillips v. Doclittle, 8 Mod. 345 ; 
 ^mith \. Parks, 10 Mod. 883. The statute appears to be confirmatory of a j>ower 
 already inherent in the courts ; Roe d. West v. Davis, 7 East. 363 ; JJoe d. Harris 
 V. Masters, 2 B. «fc C. 490. 
 
 (i) Tenant or his assignee. The construction of these words may be open to 
 doubt when considered in connection with sections i^3 and 55, and the exprea- 
 
 
 ¥'-n, 
 
 \ 
 
 
 ir 
 
 'm 
 
 M 
 
 ■ i| 
 
 ! 
 
 ■* ^u^ynS 
 
 k 
 
 tmk 
 
560 
 
 EJECTMENT. 
 
 h ^' 
 
 lit' 
 
 I; 
 
 
 i::'i I 
 
 Discontinu- 
 ance if 
 tencnt pny 
 arrears of 
 rent niiil 
 costs b(;fore 
 trial, &e. 
 
 [8. 56. 
 
 before the trial in the Ejectment, (s) pays or tenders to the 
 lessor or landlord, or to hia Attorney in the cause, or pays 
 into the Court wherein the cause is depending, Q) all the 
 rent and arrears together with the costs, (m) all furtner pro- 
 ceedings on the Ejectment shall cease; (v) and if such lessee 
 
 sions used therein. Section 51 gives facilities to landlords in allowing them 
 to briny ejectment for non-payment of rent, which may be conducted to judg. 
 ment and execution ; and then section 53 enacts that " in case the lessee, or hU 
 assignee, or other person claiming or deriving under the said lease," shall suffer 
 a certain time to elapse without paying the rent, and without proceedings in 
 equity for relief, then " the said lessee, and his assignee, and all other per- 
 sons claiming and deriving under the "^aid lease," shall be barred from relief 
 both in law and equity. Section 55 pro\ ides that in case " the said lessee, his 
 assignee, or other person claiming any right, title or interest in law or equity of, 
 in, or to the said lease," shall within the time limited after judgment nt law tile 
 a bill in equity for redemption, relief may '30 given upon certain terms. Then 
 comes the section here annotated (section 56). It applies to the case of n partv 
 coming for relief before judgment to the court in which the action is broui^ht. It 
 begins by enacting that "if the tenant, or his assignee pays," «&c., and furtiioron 
 proceeds thus, " and if such lessee or assigns," «tc. In order to construe the 
 three sections consistently, the word "tenant" must bo construed c.s meauin:j 
 something more than " lessee or assignee." It at least embraces " a sub-lessee ;" 
 Doe dcm. Wyatt v. Byron ct al, I C. 13. 623 ; and " a mortgagee:" Doe d. WhUjidd 
 ->'. Hoe, 3 Taunt. 402. 
 
 (») The application must be before the trial : see Gocdright d. Stcvcnmi t. 
 Noright, 2 W. Bl. 746 ; Roe d. West v. Davis, T East. 363 ; Doe d. Harris v. Maaten, 
 2 B. A C. 490; Doe d. Lamb'.rt v. Roe, 3 Dowl. ?. C. 557. 
 
 (t) i. «. The ejectment under section 61, and which must be brought under ,i 
 right of entry for non-payment of rent. In ejectment brought on a clause of re- 
 entry for not repairing as well as for rent in arrear, upon an application by the 
 tenant to stay the proceedings, it was insisted for the plaintiff that the case waa 
 not within the act of George II. for that it was not an ejectment founded sinp;ly 
 on the act, but brought likewise on a clause of re-entry for not rep.iiring: Held 
 that the application was within the statute : Pure d. Withers et al v. Sturdy, Bull 
 N. P. 97. In an action of ejectment on a forfeiture for breach of a covenant to 
 repair only, the court has no power to stay proceedings upon any terms against 
 the consent of the plaintiff: Doe d. Mayhem v. Ashy, 10 A. & E. 71. In one case 
 the plaintiffs were Doth devisees and executors. Defendant moved to stay pro- 
 ceedings upon payment of the rent duo to plaintiffs as devisees, they not being 
 entitled to bring ejectment as executors. There appeared to be a mutual debt 
 due to defendant by simple contract, and defendant offered to go into the whole 
 account, taking in both demands as devisees and executors having just allow- 
 .■nee", which plaintiffs refused ; but the rule was made absolute to stay proceed- 
 ing on payment of the rent due to plaintiffs as devisees, together witu costs: 
 Duckworth d. l^ubley et al V. Tunstall, Bai nes, 1 84. 
 
 (m) No rent can become due except on the day when reserved. The " arrears" 
 here intended must be computed to the last day whereon rent is made payable 
 by the demise, and not tc tlie time of computation : Doe d. Ilarconrt v. A'm, 
 4 Taunt. 883. There is no power to stay precoadings for a forfeiture for breachea 
 other than payment of rent: Doe d. Mayhem v. Ashy, 10 A. & E. 71. 
 
 (y) The party who makes application should obtain an order to the effect here 
 enacted. 
 
 
s. 57.] 
 
 OVERnOLDINa TENANTS. 
 
 561 
 
 nrliis assiprns, upon such procccdinG' as aforesaid, be relieved i'"'"''''; , 
 in equity, (to) he and they shall have, hold and enjoy the ^-luity. 
 demised lands aneording to the lease thereof made, without 
 any new lease. (.?;) 19 Yic. c. 43, s. 265, , 
 
 IX' rr:-,ANT llEFUSKS TO GO OUT. ' ' ' r ' '^ '01)/ 
 
 57. (<0 !• 1° case the terra or interest of any tenant of Prooociirigs 
 
 1 IT iii-i when tho 
 
 any lands, tenements or hereditaments, holding the same tinu' i\.r 
 under a lease or agreement in '.writing (/>) for any terra or tciiiint'h.iMs 
 nuraoer of ^cors certain, or irora year to year, (c) expires or lois.ii ium 
 is determined either by the landlord or tenant by regular tu'tHuult" 
 notice to quit; (d) and 2, In case a lawful demand of pos- '^''"*'''^*'' 
 
 t i 
 
 (?f) See section 53, 
 
 (z) It would seem that if tho landlord obtain possession and crop the land, the 
 court will not compel him to pay over the value of the crop t) tho tenant thoiii^h 
 it cxcoed the amount of rent reserved iu tlie demise: soo Doe d. Upton ct al v, 
 YQhendck, .3 Bing. 11. 
 
 (a) Taken from C, L. P. Act, 185(), section 266, the origin of which was Eng. 
 Slat. 15 ik 16 Vic. cap. 76, s. 218. Substantially the same as Eng. IStat. 1 t^eo, 
 IV. cap. 87, s. 1. Tiio main object of tlie section hero annotated is to save tho 
 lanJloi'd the necessity of going to trial where the tenant Iiohls over vexatiously 
 (I'lil wlicre tlie trouble and expense of an ejectment may be very disproportionate 
 to the val..3 of the promises sought to be recovered: see J)oe d. Philltpn v. Roe, 
 .I B. <t Al. 768, per Abbott, C. J. ; see also Stat. 23 Vic. cap. 43, and Stat. Out. 
 "1 Vic. cap. 26, passed for tho same purpose. 
 
 ('/) Tho words "under a leuso or agreement in writing" apply to tho whole sen- 
 tence, ami are not confined to tho case of a tenant holding In' a number of years 
 certain: Doe d. Earl of Bradford v. Roe, .5 B. it Al. 770, per Bayley, J. There- 
 fore wlicre ft tenant holds from year to year, but without ft lease or agreement in 
 writing, the case is not witliin tlio statute: lb. A letting by parol is clearly not 
 witiiiii the statute: Kees d. Stepney v, Thruatout, JIcClol. 492. With reference 
 to the meaning of tho word "tenant:" see Jones v. Given, a D. & L. 669; Bunks 
 a al v. Rebbeck, 20 L. J. Q. B. 47(5. 
 
 (c) The intention of the legislature appears to bo to make a provision for at 
 Ifast throe classes of cases — tenancies " from year to year," for " a year or num- 
 ber of years certain," and for any otiier "tern;," though less tlian a year, for 
 instance, three months: Doe d. riiillipt v. Roe, 5 B. & Al. 766, A tenant hold- 
 ing fruin quarter to ipiarter, subject to a determination of tho tenancy by three 
 muiitlis' notice to quit, is not within the meanijig of tlie section: Die d Carter 
 it al v. Roe, 2 Dowl. N.S. 149; nor is a tenant whose term is determinabh! on 
 lives: Doe d Pcinhertoji ct al, v. Roc. 7 B. it C. 2; for in neither of those cases can 
 tlio tcnaney be said to be "a term or number of years certain," !-\u'h as iiiteii.'cd. 
 Wiiere iifter entering into an agreement for a tenancy for a term certain, the par- 
 ties on tlie same day made anotiier agreement for tho tenancy to continue as long 
 flstlio lossor should be vicar of a parish, 'icld nevertheless to be a case within the 
 statute: Doe d. Newstead v. Roe, 10 Jur. 925. 
 
 (/) The section applies oidy to a caso where tho tenancy, if by lease, has 
 expired by ell.'uxiou of time, or if a yearly teuancy, has been determined by ii 
 
 3G 
 
 
 ■* 
 
 
 -'"^nh 
 
562 
 
 EJECTMENT. 
 
 K,-!- 
 
 1,1 
 
 
 
 [s. 57. 
 deiiv.rrns- gession in writin"' (e) made and signed by the landlnnl nr 
 
 sessKiii alter o \ y n j ^hmu ur 
 
 notke. his agent, (/) be served personally upon the tetiunt or 
 
 any person holding or claiming under him, or be left at 
 the dwelling-house or usual place of abode of such tenant 
 (ir person ; {(j) and 3. In case such tenant or person re- 
 juses to ^^eliver up possession accordingly, and the landlord 
 thereupon proceeds by action of Ejectment for recovery of 
 possession, he may, at the foot of the Writ in Eject- 
 ment; address a notic e to such tenant or person, reciuiriti" 
 him to find such bail, (/i) if ordered by the Court or a 
 
 regular notice to quit: hoe d Tindal v. Roe, 1 Dowl. P. C. 146, 7>er TenUnlnn, 
 C. J. ; and not to the cpse of a lessee holding over after notice to quit givfii 
 himself, where iiis ten :.^;y has not expired by effluxion of time: 1) ^e d (Jariiijin, 
 V. Roc. 1 D. (t R. 540; nor wiiere the tenant lioids over after Iiaving surreiulured 
 his term: Doe d. Tiiidul v. Roe. 1 Dowl. P. C. 143. If a landlord allow his turinnt 
 to hold over more than a _vear after the expiration of his term, a tenancy tVoui year 
 to year is thereby created : Doe d T/ioin,is v. Field. 2 Dowl. P. C. 542 ; slm? also 
 JDoe d Hull V. Wood. 14 M. & W. 682; and if the lease contain a condition for 
 re-entry on non-payment of rent, a tenancy fiom year to year thus created is sub- 
 ject to that condition : Thomas v. Rocker, 3 U. C. L. J. 58. The section doi-:, not 
 apjily where a right of entry is sought to be enforced for non-perfurniuiH'L' of 
 co^'enants in any case where the term created has not expired: JJne i l Cundq 
 Y. S/iarv/ '^^i, Iff }i ■'' W. 558 ; nor where there is a hand JiUe dis])utel«'l\vccn lln; 
 parties as to title : JJoe d Sanders v. Roe. 1 Dowl. P. C. 4. A notice to (piit given 
 by one of several joint tenants, purporting to be given on behalf of all, is good 
 for nil: IJoc d Adin tt al v. SuniiaerscU, 1 13. ifc Ad. 135; Doe d. KinderisUy tt al 
 V. //(/^/iM e( al, 7 M. & \V. 1 39. 
 
 (e) The demand may be in this form — " I, A. B. do hereby, as your landlord, 
 according to the Act respecting Ejectment, demand of and recjuire you iniiiic'ili- 
 ately to give and deliver up to me possession of the land and premises, witfi the 
 appurtenances, situate at, &c., which you hold as a tenant thereof under and by 
 virtue of a lease bearing date, itc. by me to you made in that behalf, your term 
 therein having expired (or " which you held as tenant thereof from year to year 
 under and by virtue of an agreement in writing — here slate if — and which tenancy 
 of and in the same has been determined by a regular notice to quit given to yuu 
 in that behalf." 
 
 (/) One of several tenants in common may avail himself of the section; for it 
 is not restricted to those cases wherein the landlord is entitled to the exclusive 
 possession : Doe d Morf/an v. Rolherham. 3 Dowl. I'. C. 690 ; and applies as much 
 to the case of a tenant suing his undertenant as to cases of plaintiffs being supe- 
 rior landloi'ds: D'^e d Walin v. Roe. 5 Dowl. P. C. 213. So may the mortgujjee 
 of the lessor avail himself of the section ; Anon 3 Prac. R. 350. 
 
 {g) Where the tenant had left England for America, his wife being still in 
 
 f)OSHesfiion of the premises, a service of the demand left on the premises, the \v'''i' 
 laving refusetl to lake it, was held sufficient to entitle the landlord to a I'lile to 
 show causu why the service should not be deemed good in order to entitle the 
 landlord to a rule under the statute of 1 Geo. IV. c. 87, s. 1: Doe d. Seli/vod v. 
 Roe. 1 W. W. & H. 206. 
 
 (/j) It is enacted that "the landlord shall thereupon," «tc. and that "it shall 
 
 '4i 
 y. 
 
s. 53.] 
 
 WHEN TENANT TO FIND SKCURITY. 
 
 563 
 
 jQ(]<re, (i) and for such purposes as are hereinafter next 
 cpeJfied. 19 Vic. c. 43, s. 2GG. 
 
 58 (''■) Upon the appearance of the party, or in case of cinuMi- 
 Don-iippearance, then on making and filinfr an affidavit of ser- u,ir wiiUth ' 
 vice of the Writ and notice , and on the Landlords producing ,;l','v ^'j'v,, 
 
 the lease or agreement, or some counterpart or duplicate I',.,; 
 thereof, (0 and proving the execution of the same by athda 
 vit, (m) and upon affidavit that the premises have been 
 actually enjoyed under such lease or agreement, and that the 
 intciest of the tenant has expired, or been determined by 
 reciilar notice to quit, (as the case may be), (ii) and that po?- 
 v.iiioii has been lawfully demanded in manner aforesaid, (o) 
 the Landlord may move the Court or apply to a Judge at 
 
 lilt to 
 
 lillll 
 security. 
 
 bo l.vfi ' for him at tlie foot of the writ in ejectment to addross a notice," Ac. 
 TliiT ire the notice ouijlit to be aigned in liie njime of the huidlord: see Anon. 
 1 1). iV II. 4o.5, /»; but ii notice sij^ned "A 15, ai^ent for phiintitf," i.s sufficient: 
 lP)d IJi'itrd V. Roe. 1 M. & W. r.tV). Ti»e intention is that the notice sli:;ll be 
 asii from tiio landlord, and if such bo the construcLion of it tiie bare formality of 
 *i:!:;iiiu'e will be immaterial: see Goodidie d the Duke of ^/'orfolk v. Nolitle 5 B. 
 4 .\1 city. If sii^ned by an agent it is not necessary tliat tliere slionld be an affi- 
 r' r in proof of tiie agency: Doc d Gddirt v. Roe, 1 \V. W. & II. IMlj. A 
 notice given by one of sev 'ral lessor.s, joint tenants, enures tlie benefit to all: 
 Ikt d An in el al v. Summersctl, 1 B. it Ad. loo; Due d. Kinderaley et al v. 
 llyjhes et al, 1 M. it W. 1:59. 
 
 (i) Court or a judge. Relative powers: see note w to section 48, C. L. P. Act. 
 
 [!:) Taken from latter part of C. L. P. Act, 1856, section 2t!6, the origin of which 
 was Kng. Stat. l.j & Iti Vic. cap. 76, s. 218, and substantially the sam'.> as Eng. 
 Stut. I (Jeo. IV. cap. »7, s. 1. 
 
 (/) The original agreement or some counterpart or duplicate thereof, when coun- 
 terparts or duplicates have been executed, iiiuit be produeec'.. When produced, 
 till' ill-it rinnent should upon the face of it njipear to be valid: Doe d. Caulfieldv, 
 Roe, 3 Bing. N. C. 329; see also Doe d. Holder et at v. Ruihujorth, 4 M. «fe W. H. 
 
 (mj It is not indispensable that the attesting witness, if there bo one, sliould 
 make tlie affidavit of execution: see Doe d Miri/un v. Rollieihum, 'A Dowl. P. C. 
 690; I),e d. Gowland v. Roe, 6 Dowl. P. C. a.'i ; also Doe d. Avery v. Roe, lb 618 ; 
 ^.nds. 212, C. L.P. Act. 
 
 («) It would be well for the affidavit to state when the notice was given, in 
 orclertliiit tiie court may jud^o of its sutiielency and regularity: Doe d, Toi>t>iny 
 V, Boast, 7 Dowl. P. C. 487. The affidavit should not omit the word " regular," 
 in referring to the notice: lb. The lease, iigreeiiieiit, counterpart, or du|)licato 
 should be annexed to the affidavit: Doe d. J'vucua v. Rue, 2 L. M. >t P. 322. 
 
 (o) .'^ee note e to section 57. 
 
 it. • 
 
 hH 
 
 }"$% 
 
 
 :iiab-^i.i~.J.i.. 
 
4 
 
 i 
 
 1 1> 
 
 * 
 
 ';!! 
 
 584 
 
 EJECTMENT. 
 
 [S. 08. 
 
 Chaiuhers (p) for a rule or summons (tj) for such tenant or 
 per^jon, to show cause within a time to be fixed by tlio Court 
 cr JuJ^'C ou a consideration of the situation of the prenjij^os CA 
 wliy such tenant or person should not enter into a reco^ni. 
 ziince by himself and two sufficient sureties, (s) in a roasuna- 
 bio sum, (f) conditioned to pay the costs and damages wliich 
 may bo recovered by the Claimant in the action, (v/) and the 
 Court or Judge, upon cause shown or upon affidavit of the 
 service of the rule or summons in case no cause be shown, (t) 
 may make the same absolute in whole or in part, and order 
 .«uch tenant or person within a time to be fixed upon a consi- 
 deration of all the circumstances, to find such bail with such 
 conditions and in such manner as shall be specified in the 
 said rule or summons, or the part of the same so made 
 
 (p) It isonactc'l that it shall bo lawful for thclanillordprocliicinsf, »fec,,ninlproT. 
 inw ie , iuul upon a'.lidavit, Ac, to move tho court or a jiulfjo. Tliese sovci'al acts 
 mentioiH'J arocoiiditioiis jiroeoilent to the application, aiul necessary to sustainit. 
 
 ((j) Thoni;]i the ]io\vcr9 of tlie court and of a judge in Oinniberg are f'lr tlie 
 jnirpcse of tlio appru^itiou under this section made co-ordinate, it is apiirelicndcJ 
 tliat the court wiU bo !<low to entertain tlie application iu the first instance: see 
 uote w to section 48, C. L. P. Act. 
 
 (r) Two points are involved in this sentence: first, that the time witliiii wliith 
 cause must be shown should bo fixed by tlio court or judpre ; second, tliat it shall 
 be detorinined on a consideration of tho situation of tho premises. 
 
 («) ''Tiro," not "two or more." The defendant, as well as the bail, slioiiU 
 enter into tho rocofinizancc. If sureties enter into the recognizance on the faith 
 that tho tenant will do so, and tenant omit to do so, the sureties will nut bo 
 I'ound: see Kaslall v. The Attorney/- General, 17 Grant, 1. 
 
 (<) Tho reasonableness of which must btf determined by the court or jnd^o. It 
 is unnecessary to exj)resfl in the rule nisi the amount of tho security required. The 
 amount should be determined when tho rule is made absolute, because then the 
 court or judge will bo enabled to decide what may bo a reasonable simi to be fixed 
 in view {<f all the circunistancos of tho case: Doe d. Phillips v. A''e, 5 B. tfe Al, VGfi; 
 Doe d. Mitrqnis Anjlesey v. Brown, 2 1>. it R. 688. 
 
 (m) Under the statute of 1 George IV c. 87, s. 1, it was held that tho court 
 was onl}' empowered to give a reasonable sum for the costs of the action, and not 
 for mesne profits: Doe d. Sampson v. Roe, 6 ^looro, 54. But in a casiMvliere 
 mesne profits can Jiow be rocdvored on tho trial, i. e. wlicro the ejectment is brciiijlit 
 by a landlord against his tenant, there does not appear to be any reason why they 
 should not bo included in the recognizance : Tat. MaeX. & Mar. I'rac. 970. Spotial 
 damage alleged to have been caused by the tenant to tho premises cniiiiot, it 
 seems, bo inserto^l in tho recognizance: Doe d. Marks et al v. Roe, 6 D. it b. 87. 
 Tho court or judge, in anj event, can direct tho recognizance to be taken to tlie 
 extent of a year's value of the premises, and a reasonable sum for the costs of the 
 acti(;n. The amount to be inserted in tho recognizance, in respect of the cost?, 
 should be ascertained by the luaster : Doe d. Levi et al v. Roe, C. B. 27-. 
 
 {y) If the tenant can show with certainty that a new demise has been niaJo to 
 Lim, that will be sufficient cause: sec Doe d. Duranl v. Doe, G Bing. 574. 
 
[s. 5». 
 
 ;uch tenant or 
 I by the Court 
 e premiscs/r) 
 Into a reeoiiin. 
 ) iQ a vcasona- 
 lamages which 
 in, (m) and the 
 affidavit of the 
 I be shdwn, (t) 
 part, and order 
 1 upon a consi- 
 bail with such 
 pecificd in tlie 
 same so made 
 
 njj, itc.,aiKlproT- 
 I'hese sc'Yi'val ad3 
 snry to sustain it. 
 libera nre for tlio 
 it is npin'c'luMultJ 
 irst ins^timcc: see 
 
 lime witliin wliich 
 ond, tliut it shall 
 
 the bail, slmiild 
 :ance on tin. faith 
 ■utles will nut be 
 
 Durt or jik1i:;c. It 
 ity required. The 
 
 because tlien the 
 )le s\im to bu fixed 
 
 e, 5 13. <t Al.TGfi; 
 
 tl that tlio onurt 
 he action, and net 
 it in ft casi> where 
 ctmentii' brought 
 y reason why they 
 
 ■uc. '.»70. S[>e('iul 
 
 enii.ses cannot, it 
 Roe, 6 1). it L. ^7. 
 to be taken to the 
 jr the costs of the 
 
 poet of the cost?, 
 6 C. B. r,2. 
 
 has been nmJc to 
 jinqr. 57-1. 
 
 ss. 50, 00.] RECovF.ny of mesnf profits. 5G5 
 
 absolute. («') 19 Yic. cap. 43, s. 2GG. 
 
 .lO. (") I'l case the party ncizlccts or rcfuh^cs to comply if ii"t -iveujlp J \^ , 
 itli such rule or order, {l>) and gives no ground to induce iini,.iii.ig- . ' • , "/' 
 
 the Court or Judge to euiarj^o the time lor 'jhcying the bo si-uud. 
 eamo, ('•) then the lessor or landlord, upon filing an aPdlavit 
 that such rule or order has been made and served and not 
 couiplicd with, may sign Judgment for the recovery c.f pu.s 
 session and costs of suit, in the form marked No. 9,"'oF'to the 
 like effect. (<0 19 Vic. c. -i:5, s. 2G6. 
 :\ii;sNK ruoFiTS. 
 60. (') Whenever it appears on the triai of an Eject- f'^'nt niay 
 uicnt at the suit uf a hmdlord against a tenant, (/') that the I'l \w^\w 
 
 ,., ,, I'll' • p ;iri)iits at 
 
 teiuuit or his Attorney has heon served with due notice oi trial, tin; 
 tii;il, (/y) the Judge bcfurc whom the cause comes on to be ilaviii^'ihst 
 tried, shall, (whether the Defendant appears upon the trial or hu lum 'to 
 ii&tX (/') permit the Claimant, after proof of his riglit to sllLkiil, &e! 
 
 (ic) The hail-piece may bo as follows: 
 Cmmty of, Ac. } On the, tfec. A. B. against C. D. for the recovery of, (fee. 
 
 I 
 
 ccorJiiiij to the writ.) 
 
 To wit: 
 "eeo^iii/ance in [£loO] bv rule of ) The sureties are, B. B. of, etc. butclier, and 
 
 - - ■ ■ •■ ■ \t.- - ■ 
 
 B. of, ttc. tailor. 
 
 C'jiirt [or JuJije's onlerj. 
 Taken and acknowledged, <fcc. 
 
 The ncknnivlfdffment may bo ns follows: 
 
 Yiiii do jointly and severally undertake that if you, C. D., shall be condcn^ned 
 in tills action, you, C. 1)., shall piij- tlio costs ami damages which '^hall be i ecovered 
 in -^iich action by the plaintitt", or in default of your so doing, tliat you, B. 15. and 
 T, Ij., will jiiiy tlie costs and damages for the tiefendant. Are joii content? 
 
 f") Taken from the latter part of C. L. P. Act, 185^, section 'idd, the origin of 
 wiiieh was ICng. Stat. 15 & Hi Vic. cap. 70, 8. 213, and substaiitiallv the same as 
 Y.iv:. Slat. 1 Geo. IV. cap. 87, s. 1. 
 
 (j i. e. Me:itioned in section 58, 
 
 ('') An enlargement, it is apprehended, could be had upon rhowing that it is 
 reiilly necessary- in order to answer the application, and then i;nly oii ^uch terms 
 ;is ilie Court or judge may deem reasonable-. 
 
 ('/) It may be a part of the rule that the landlord fihall be at libei-ty to sign 
 jui!;;iiient in case of a default on the part of the tenant togi\e ihu required securi- 
 tiw: ,«i-e J)'.ie V. Roe, 2 I>owl. 1'. U. ISO. 
 
 (<■) Taken from C. L. P. Act, 185G, section 207, the origin of which was Eng. 
 ^tal. 1,") it id Vic. cap. 7(5, s. 214. 
 
 (J) The action of debt for doidjlc value given by Stat. 1 (leo. If. cap. 28, is 
 not iill'eeted by this .section: see JJumer v. Lniitg, \i IJ. i'. >,}. li. i;:i;;. 
 
 [g) As t,o which see section 201, C. L. P. Act, and n.)te> thereto. 
 
 (/') In case of defendant's non-a!ipearancc at the trial, if claimant be unpr([)ared 
 witli [H'oif of title ho may waive mesne profits and take a verdict under section 
 lil uf this act. 
 
 
 n 
 
 Si ■! 
 
 1 « - ^h 
 
 'M ' 
 
 'A if 
 
 m 
 
 ,11 ' * 
 
 iS^.i 
 
 •w 
 
 ilMJ 
 
 ;!'■.. 
 
 iLli i: 
 
 
 'u:;; 'P ' 
 

 566 
 
 EJECTMENT, 
 
 [S 
 
 Kl 'J 
 
 4 ,'-^ 
 
 recover possession of the ^vhole or any part of the premises 
 mentioned in the Writ, (i) to go into evidence of the mensc 
 profits thereof which have or might have accrued from the 
 day of the expiration or determination of the tenant's interest 
 in the same, down to the time of the verdict given in the 
 cause, or to some preceding day to be specially mentioned 
 therein, (_/) and if on the trial the Jury find for the Chiimant, 
 they shall give their verdict upon the whole matter both as 
 to the recovery of thp whole or any part of the premises, (/,) 
 and also as to the amount of the damages to be paid for such 
 mesne profits, (/) and in such case the landlord shall have 
 Judgment within the time hereinbefore provided, (m) not 
 only for the recovery of possession and costs, (i) but also for 
 the mesne profits found by the Jury; (o) and the landlord 
 may after the verdict bring an action for the mesne profits 
 which accrue from the time of the verdict, or from the day so 
 specified therein, down to the day of the delivery of possession 
 of the premises recovered in the Ejectment, (p) 19 Vic. c. 
 43, s. 2G7. 
 
 («') See section 21. 
 
 (y) This section expressly provides that claim"nt may 50 into the question of 
 mesne profits, nnd it does not contain any provision wliieh makes notice of such 
 a claim n condition precedent to the claiinnnt's ri<;lit to recover in rcsiicct of 
 ♦hem: Siiiilh v. TiUt. 9 Ex. .307; see also Tresn v. Savage. 18 Jur. 6S11; Due d. 
 Thompion v. Ilodynon, 12 A. & E. 135. Tlie only matter which is ninde n con- 
 dition j)rcccdi'nt is that the tenant or liis attorney shall be served with due 
 notice of trial. Tlie claim for mesne profits must ho considered as ii)v.'hui(v! in 
 the writ. In this respect the C. L. 1'. Act dit1ei>. from our former stitute \\ k 
 15 Vic. cap. 114, which enacted that a ])laintifr in ejectment, to entitle himself to 
 recover for nie?ne profits at tlie trial of the ejectment, should witli tlie ori;;ina; 
 summons deliver a notice of his intention to claim substantial damaffes: si'ctidn 
 12. If lie omitted to ijive tlie notice he waived all siicii claim, anil coiiM iidt 
 brin^' any action afterwards on that account: see Curtis el ux. v. Jaivis, lo I'.C. 
 Q. B. 4t;i); J/'in.er v. Lain;/, l;j 'J. C. Q. B. 'I'.V.i. 
 
 (k) See section 21. 
 
 (/) Such iiirj^ne prnfifx, i e. " which have or mi^i^ht have .iccrucd froi;i tlic diiy 
 of the expiration or deterniiniUion of tiie tenant's interest down to the lime of llie 
 verdict u;iven in tlie cause, or some preceding day to be specially mentioned 
 therein." 
 
 (m) See section 26; furtiier see section 61. 
 
 (n) Coats as between attorney and client cannot be recovered bj' claimant: 
 Doe V. Fdliler, 18 ]M. & W, 47; see further Xeale el ux. v. Winter, 10 L. C. 
 C. P. 199. 
 
 (o) See section 60. 
 
 (^)) In an action for mesne profits it lias been held that the judgment ia eject- 
 
S.61.] 
 
 WHEN SPEEDY EXECUTION MAT ISSUE. 
 
 567 
 
 SPEEDY EXECUTION. 
 
 Gl. (/•) If upon the triul of any case in which such secu- Court may 
 rity liiis been given as atoiesaid, (>) a verdict passes tor the timi witiiin 
 Claiiiiiiiit, (0 the Judge before wh(»in the trial is had may r.'i^sL'.s'ww'ro 
 
 si^curity is 
 K'ivoii, 
 
 (unless it appears to him, that the finding of the Jury is con- 
 trary to the evidence or that the damages given are esces- ""''-'^^' *'"• 
 sive), (w) order that Judgment may be entered and execution 
 issued in favour of the Chiimant at the expiration of six days 
 next after the giving of such verdict, (y) 19 Vic. c. 43, 
 s. 2G8. 
 
 idgmcnt in ejec 
 
 ment is conclusive of plnintiflf's right to possession from the day of the demise laid : 
 [kidwell V. Oibbs. 2 C. I'i P. 615! and may be replied hy way of estoppel to a 
 jileii (if not possessed; IJoe v. Wiif/ht. li» A. & K. 703; Mallhew v. O-ihonie. 13 0. 
 B. or.t; Sfeen v. Sieeii, 21 U. 0, Q. R. 454. To an action for mesne profits from 
 December, 1844, to March, 184t), it is no estoppel to reply a judgment in eject- 
 ment on a demise laid as of 14th October, 1845: B'ev. Wettumnn. 2 Ex. 368; 
 see also LiichfieUl v. Rendu. ^ Ex. 93',). Judgment by defiiult alone is evidence 
 of possession by defendant during the time mentioned in the writ: Pearnc ct 
 al\. Conker, L R. 4 Ex. 92. Though formerly a judgment against the casual 
 ejoetDr was held not to estop a defendant in an action for mesne profits from 
 (iii-|mting the title of plaintiff from the time of the demise laid in the action 
 of cjcctinent: Ponton v. Dali/. 1 U. C. Q. H. 187; it is now settled •tlmt a judg- 
 ment by default is as much conclusive if properly replied as a judgment oa 
 Tei'iliiit: Wi/kmson v. Kirhi/, 15 (J. B. 430. In trespass for mesne profits it is 
 iiei,e>siiry to state that the land is the land of the plaintiff: Gruni el al v. /''/«- 
 ning. Tay. Rep, 342. And in such an action defcntlants may give in evidence, 
 in niitii:jation of damages, tiie value of buildings erected on the premises Ly them: 
 Linilmii/ el id V. McFiirltiif/ ct al. l)ra. Rep, 0; or other substantial improvements 
 made by them: P'llt'rxoa v. Reardon, 7 U. C. Q. H. 326. A defendant may be 
 sueil for mesne profits though he was never in actual occupation: Doe v. Harlow 
 etal. 12 A. <fe E. 40. 
 
 {r) Taken from C. L. P. Act, 1836, s. 268. See further Eng Stat. 15 & 16 Vic. 
 cap, 7t), ss. 185, 215, and Eng. Stat. 1 Geo. J V. cap. b1, a. 3. 
 
 («) Under section 58. 
 
 (0 Qu. And one of several claimants? 
 
 (>i) The finding of the jury intended is as to the right of possession: s. 21; 
 and tlio damages intended, those for mesne profits: s. 60. 
 
 ('-•) The words at the close of this section are in substitution for a wholly dif- 
 fe.cnt provision in the section of the English 0. L. P. Act corresponding with the 
 one Ikti! iinnotated. In England, upon a finding for claimant, unless the judge 
 make an '(rder to 'he contrary, judgment may be entered on tlic fifth d ay in term 
 after tlie verdict, "or within fourteen days after verdict, wliichcvei' .shall first 
 liappeii:" Eng. C. L. P. Act, 1852, s. 185. In this Province, unless ordered to 
 the ciiiitrary, no judgment in ejectment si i all be entered until" Hi e fifth day in 
 term next after the verd'ct :" s. ii6, 'Tims there exists a JiTTeFenee in the language 
 of tlie two sections, wbicii is necessary to be noted By the Enu;lish (', L. I*. Act, 
 IS.Vi, Section 215, in the vent of execuiion beini; stayctl until the term following 
 tile venlict, when a lontje, period than fourteen days, proNision is made refpiiring 
 tlelLiulauL to yive security " uot to commit any waste or act in the nature of wa=te 
 
 Aj^^^ 
 

 ?;. • 
 
 >v*' 
 
 V . * 1 
 
 I.' 
 
 
 508 
 
 AH vcofii,'iii- 
 
 to li(i t ikcii 
 ill llku Hum- 
 nor :is bail 
 in tlii^ Siilu'- 
 rior Ciiiu'ts, 
 witit liku 
 foos, &'!. 
 
 Liniitati'Xi 
 of iictidiis 
 
 UI)'>U rtUcll 
 
 ro(!o;riii- 
 zanucs, &c. 
 
 EJECTMENT. 
 
 [s. G2, G3. 
 
 More pnsy 
 ri'iiii\ly 
 against 
 tuiiaiit.i will) 
 wi-iiiigl'iilly 
 holJ over. 
 
 RlX'OriMZANCKS. 
 
 03. (m) All recognizances and securities entered into in 
 pursuance of this Act, shall be taken respectively in sudi 
 manner and by and before such persons as are provided and 
 authorized in respect of recognizances of bail upon actions 
 and suits depending in the Superior Courts of Common Law 
 and subject to the like fees and charges ; (c) but no action or 
 other proceeding shall be coiuinenced upon any such reooiini- 
 zanco or eecurity after six mouths from the time when the 
 possession of the premises or any part thereof has actually 
 been delivered to the landlord. QI) 19 Vic. c. 43, s. 269. 
 
 TENANTS OVEIUIOLDING WnONGFULLY. 
 
 63. (') In case a tenant, after the expiration of his term, 
 (whether the same was created by writing or parol), wrong- 
 fully refuses, upon demand made in writing, to go out of 
 posscs.sion of the land demised to him, (_/") his landlord, or 
 
 or otiicr wilful (Limn^^o, ami not to sell or carry ofT an_y stamlinfj crops, hay. straw 
 or iDaiiiiro jm-oiIuouiJ or iiiade (if any) upon the prLMuisos, ami which may li.ippen 
 to be tlicrcnpoii from the day on which tlie verdict siiall Imvo been given, to tiie 
 day on wiiich execution sliall finally be made upon the judj^inent, or tlie same be 
 set aside, as the case may be." 
 
 ('/) Taken from C. L. P. Act, 18.50, s. 2G9, the origin of wbioh was Eng. St.tt. 
 15 cfe 16 Vic. cap. 76, s. 216, the origin of which is Eng. Stat. 1 (jco. IV. cap. sV, s, 4. 
 
 (c) As to recognizance and the practice of bail generally in Ontario, sc(! note;', 
 8. 38, C. L. r. Act. 
 
 (d) As to conipiilation of time, see C. L. P. Act, s. ',U2, and notes thereto. 
 
 ((') Taken from section 53 of our Real Property Act, 4 Wm. TV. cap. 1, ns to nvcr- 
 holding tenxnts, lleference may also be had to statutes 23 Vic. cap 43, ami Stat, 
 Ont. 31 Vie. caji. 20, boVii passed since the Consolidated Statutes, and in e.vteiisioa 
 of the remedies herein provided. 
 
 (/) The tenancy intended by this section is not one which can onl}' be put an 
 ond to by notice, but one wiiieh comes to an end by tlie eiHuxion of a stipulatoJ 
 period: Adims v. Bains, 4 U. C. Q. B. l")?; or perha^JS by tlie happening- of a 
 particular event, as under a lease for the life of tlie lessor: Pation v. Kvm, 
 22 I J. C. CJ, R. 606; so tliat a tenancy for a indefinite term at a montldy rent, 
 Buttject to be put an end to b}' eitiier Jiarty at a montli's notice, is not within tli« 
 statute : Ih Nor does this statute apply to a tenancy at will : Advcranl v is/niver, 
 MS. T. T. 6 ife 7 Wm IV. R. it 11. Dig. " Landlord and Tenant," 11. 2. A tenant 
 remairdng in possession after tlie expiration of his term, and payina: two nioiiths' 
 rent, cannot in the middle of the third month be eje(;ted b}- his laiidloi'i! as an 
 overholding tenant within the meaning of this statute: Admis v. Uaiiis, 4 U. C. 
 Q. B. l.')7' The fetalule does not ajjply to tenants whose ternis are alleged to Ic 
 forfeited by alleged breach of covenant: //( rA McN"6 niid Duidop et nt. ? U. C. 
 Q. B. 13."). Where A, having become purchaser ut sheriff's sale of B's iiitereit 
 
irio, SOI? iioto ;i, 
 
 S.6;].] 
 
 OVERIIOI.PINO TENANTS. 
 
 509 
 
 tk airi'iit of his lamllovd, (y) may apply to either of tlio Api'iiciition 
 
 Siipeiior Courts of Ooiiimon Law in Ttjrin, or to a Judtrc ii!.'i'(\,'iii'tor 
 
 thcreul" in vacation, scttin<^ forth, on aliidavit, the terms of i,',' 'v.il'iit'u",,. 
 
 the Jt'uiise, if by parol, and nnnexintr a copy of the instrii- 
 
 nicnt cmitaining such demise, if in writin:;;, and also a copy 
 
 of the demand made for the delivery up of possession, and 
 
 ftatiii!,' also the refusal of the tenant to f^o out of possession) 
 
 and the rea>-on given fur such refusal, (if any were <;ivcn), 
 
 adding suuh explanation in regard to the t^ronnd of refusal 
 
 as the truth of tlie case may require; (Ji) and if upon such 
 
 affiJavit it appears to the Ouurt or Judpe that the tenant 
 
 wrontffully holds over, without colour of ri^ht, (i) such (lourt )\' '' '" 
 
 or JiuliTO may order a writ to issue in the name of the (juecn, 
 
 aiiJ tested in the name of the Chief Justice or Senior Puisne 
 
 Judiie of such Court on the day that the same actually issues, 
 
 in ft term of j-enrs held under n third pfirty nt a lime when B was in possession, 
 ami A iit'terwartls, upon B's rcqui'st, allowed liini to roinain in possi'rt.^ion for five 
 (lily's, it, \vi\3 held that IJ oould not be ejeoted under this act ; Bniinfr \. lioke, 
 !• i'. C. L. J. 213. When once a tenant has been ejeoted under the o|K'i'iition of 
 this act, it is no ground for ins restoration to possession that after the tiiiding of 
 thi' jury tlie agent of the landlord received a inontii's rent from the tenant: 
 lIViyA/ V. Juhihson, 2 U. C. Q. 15. 273. Where a tenant overliolds after the expi- 
 ration of liis term, the landlord has a riglit to take possession if he can without a 
 breach of the pcr.cc: JJouUon v. Murplnj ct al, 5 O. S. 731. 
 
 (y) A mortgagee frou) whom the mortgagor has accepted a lease of tlio inort- 
 g.iiTi'd priiMiise.s, will not be pern;ittcd, on tiie cx|)iration of the term, to ])roceed 
 uiiiKr this section: In re Reeve, 4 I'rac. li. 27; but a receiver, appointed by the 
 cuiirt of L^haneery, to whom the tenant has attorned, nia}- aj)ply nnticr this sec- 
 tion ; III re Babcock and Brooks, ',• U. C. L. J. 185. If the interi'st of tlie original 
 liihdlord be sold, the vendee may probably apply under tliis section: Jb. Where, 
 iintl\e expiration of a tenancy, crops remain to bo valued, this should be done, and 
 the ariioniit tendered, before making application under tins section : Jn re Boyle, 
 '21'rac. K. 134. 
 
 (/() To tlie affidavit must be annexed — 
 
 1. Copy of tlie demise, if in writing. 
 
 2. Copy of the demand of possession. 
 
 And tlic atiidavit must set forth — 
 
 1. Tiie terms of the demise, if by parol. 
 
 2. ])ernaud of possession. 
 
 3. Ivcfusal to give up possession. 
 
 4. Tlie reason, if any, given for tlie refusal (adding such explanation in 
 
 regard to the ground of refusal as tlie truth of the case may retjuir .) 
 
 (') If tlie reasons given by the tenant, why he shotild not go out of ]iossession, 
 raist' any dillicidt (piestion of law or fact, relief cannot lie had under tliis section : 
 sie reiiiiirlis c.f Uobinson, C. J. In re Wuddhury ct v.c and Marshall, 10 U. C. 
 ^l. 1'. 5'J7; see also i>oe d. Lyons v. Crawjord, 6 O.S. 334. 
 
 
 m 
 
 •"■'■■111 i 
 
 -si. s 
 
 :;; ''^ 
 
570 
 
 EJECTMENT. 
 
 [«8. G4, G5. 
 
 Notii-fi of 
 
 directed to such person as the Court or Judjre appoints and 
 coiniimndin<r him to insuc his precept to the ShoiilT of the 
 County in which the land is situated, fi)r the suniuioi)in<r of ^ 
 Jury of twelve men, to come before the Commissiuncr ut a 
 day and place by such Couimissioner named, to in(|iiiro and 
 say upon their oaths whether the person compluiiicd of was 
 tenant to the complainant for a terra which has expired and 
 whether he does wr(tn<ifully refuse to go out of posspssion 
 having no rijiht, or colour of right, to continue in possesjiion, 
 or how otherwise, (_/) which writ shall be made returnable 
 whenever the same has been duly executed, before any one of 
 the Judges of the said Court. 
 
 6J:. (/iO Notice in writing of the time and place of huld- 
 hoiiiingin- jng such inquisition shall be by the landlord served upon ihe 
 tenant, or left at his place of abode, (I) at least throe days 
 before the day appointed, (ni) to which notice shall be 
 annexed a copy of the affidavit on which the writ was 
 obtained, and of the papers attached thereto. ()t) 
 
 05. (o) Before any Commissioner holds an inquii-ition 
 under this Act, he shall take the following oath before some 
 one of the Justices of the Peace in and for the County ia 
 which the inquisition is holden, (p') which oath shall be 
 indorsed on the said writ, that is to say : 
 
 " I, A. B., do solemnly swear, that I will impartially, and 
 " to the best of my judgment, discharge my duty as Comiiiis- 
 " sioner under this writ. So help me God." (q) 4 Wm. 
 IV. c. 1, s. 56. 
 
 Comniis- 
 sioiiu'-s to 
 be swum. 
 
 Oath. 
 
 (J) For forms of writ and precept: see 10 U. C. L. J. 2, 3. 
 
 {k) Taken from latter part of seotion 53 cf repealed act 4 Wm, IV. cap. 1. 
 
 (l) For form of notice: see 10 U. C. L. J. 3. 
 
 (m) As to computation of time: see C. L. P. Act, sec. 342, and notes thereto. 
 
 (n) For the information of tlie tenant and to enable him without delay to make 
 ready for the trial. 
 
 (o) Talcen from section 56 of repealed act 4 Wm. IV. cap. 1. 
 
 (p) Not sufficient if taken before a clerk of the peace : Herbert q. t, v, Boioswdl, 
 24 U. C. Q. B. 427, 
 
 (q) The court refused to entertain a motion to quaslj a commission for miscon- 
 duct on the part of a commissioner, but considered there was power to hold him 
 
S3, 60, 07, 08.] OVERIIOLDINQ TENANTS. 
 
 671 
 
 . t. V. Dowsmll, 
 
 60 (0 The Commissioner shall administer an oath or .imytobo 
 
 1 1 1 T 11 1 SWIIlll. 
 
 gSrmuliun to the persons summoned on such Jury, well tuid 
 truly to try, and a true verdict to pive, upon the matters 
 and things in the said writ contained, accordinp to the 
 evidencej (m) and shall also adtuinistcr an oath or atBrmation And wit- 
 to the witnesses produced by either party, (f) lu.scs. 
 
 67. (m) The Jurors («) shall, under their hands, cither Vnciiot. 
 with or without their seals, endorse their finding upon the 
 
 back of the writ, or return the same upon a paper attached 
 thereto by such Commissioner, (w) 
 
 68. i-f) When executed, the writ and all the evidence, F.viiimio 
 
 . II 1 •/> -1 1 1 1 1 /-I • • , '"' "tiirned 
 
 shall be certiiied and returned by the Cnmmissioncr to be «iiii ccmi- 
 filed with the commi.ssion and the proceedings thereupon in 
 the office of the Clerk of the Crown and Pleas, at Toronto, 
 from which the writ issued, (y) and if upon such return and 
 a consideration of the evidence, it appears to the Court or to 
 a Judge in Chambers, that the case is clearly one coming -(Vi,,.!! imid- 
 witliin the true intent and meaning of the sixty-third section |',i!i',.,mi' in" 
 of this Act, such Court or Judge may issue a precept to the i""*'*'-'*'*'""- 
 Sheriff, in the Queen's name, commanding him forthwith to 
 place the landlord in possession of the premises in ques- 
 tion. (,:) 4 Wm. IV. c. 1, s. 53. 
 
 amenable on an application, independently of the proceedings between the land- 
 lord and tenant: Allan v. Rogers, 13 U. C. Q. 13. Ibfl, 
 
 ()•) Taken from the latter part of section 03 of repealed act 4 Wm. IV. cap, 1. 
 
 W Where the first jury disagreed and was discharged, il was hohl that the 
 aiitliority of the commissioner was not determined, but that anotiier jury might 
 be siHiiuioned and an effectual inquisititm had: In re Wuodlmri/ et nx. and Mar- 
 ihiiK, l!t U. C. Q. B. 597. The oct of the discharge of tiie jury by consent will 
 not prevent the writ being proceeded with : Jn re Balcock and Brooks, 9 U. C. 
 L. J. 1.S5. 
 
 [t] For forms of oaths for jurymen and witnesses, and forms of subpoenas for 
 ivitnosses: see 10 U. C. L. J. 3, 4. 
 
 ('0 Taken from the latter part of section 53 of repealed act 4 Wm. IV. cap. 1. 
 
 ((') 8ee note s to section 66. 
 
 (i') For form of inquisition : see 10 U. C. L. J. 4. 
 
 (j') Taken from the latter part of section 53 of repealed act 4 Wm. IV. cap. 1. 
 
 00 Not only the writ but nil the evidence must be certified and returned in 
 order to a review of the whole matter by the court or a judge, as in the latter 
 part of tills section provided 
 
 {:) It 13 on the ajiplication for this precept that any questions of law or fact as 
 
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 r, ,; , \\ 
 
 mm 
 
IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
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 Hiotographic 
 
 Sciences 
 Corporation 
 
 23 WtiST MAIN STREET 
 
 WEBSTER, NY. MS80 
 
 (716) 873-4503 
 
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 :^. 
 
672 
 
 EJECTMENT. 
 
 [ss. 69, 70. 
 
 i^'\ " 
 
 
 The Court 
 may revisit 
 till! proceu'l- 
 
 JU({8. 
 
 Ami ifiiro- 
 
 ticf, (iril'T 
 L'imilt I:) 
 
 l<i; rest'iri;.! 
 to I'oascs- 
 
 Hioll. 
 
 Tlio .Tii.l','i's 
 limy ilivisi' 
 
 fMrilLS of 
 
 jirociM'i lilies, 
 niid iiiiiUi! 
 OrillTH iv.s- 
 lioctiii^C 
 cimts mill 
 'jiifort'i! tln;ir 
 liii.V'Hjut. 
 
 Oil- (a) When such precept has been made by a Judjije, (i) 
 the (Jourt (c) iiiay, on tuotiuu before the end of the KeconJ 
 term after the issue of such precept, examine into the pro- 
 ceedings, and, if they find onuse, set aside the same, (r/) and 
 may is.sue a precept to the SiicrifF, if necessary, eoujuiandinf; 
 him to restore the tenant to his possession, in order tlutt the 
 question of rigtit, if any appear, may be tried as in other 
 cases of Ejectment. 4 Wni. IV. c. 1, s. 54. 
 
 yO. (./') The Judges of the Superior Courts of Cuiiiiuon 
 Law, in term time or in vacation, may make and from time 
 to time alter and amend the form of the writ, inquisition and 
 return, and of the precepts to be issued under the sixty-third 
 and foUowing sections of this Act, and may make such orders 
 respecting costs as to them seems just, and may make order 
 respecting the issue of a writ to the Sheriff, commandinj^ hiui 
 to levy costs of the goods and chattels of the landlord or 
 tenant, or person liable thereto, or (subject to the provisions 
 of the Act respecting Arrests and Imprisonment for Debt) 
 rcspeciing the issue of an attachment for the non-pnyment 
 thereof against the party liable to pay costs, as to them 
 seems just, (j;) 4 Wm. IV. c. 1, s. 55; 22 Vic. c. ^3, s. 4. 
 (185'J.) 
 
 "7 
 
 discloapil I'}- the eviilonco and objection if any to tlie roguliirity of tlic Inndloril's 
 proccodiiij^s may be dis'out.si'd. And ftllhous;li ft jury may on tlii' direction nf tlic 
 cominissidiii.'r tind for the elainiant, a jirceept tu the ehi'riff for delivery of jiossi'S- 
 sion will be refused if the court or juds;e dn not think the evidence diselosi' a ease 
 within the nteauing and opcrutiou of suetiun (ili of tliiH act : buo Uomer v. Loicc, 
 »U. C. L.J. 213. 
 
 (a) Taken from seetioii 84 of the repealed net 4 Wm. IV. cnp. 1. 
 
 (A) Under seetion GO. 
 
 (f) The court, i. c. from which writ issued. 
 
 {(I) The court refused in one ease to eet aside a writ of posRerwion issued by a 
 judfjc on a linding in favor of the claimant where tiie ii[)|ilieati(»n was made i.ii 
 the ground that the agent of tlio landlurJ had received a mouth's rent after the 
 finding of the jury : l!V/^/t< v. Johnson, 2 U. iJ. Q. iJ. 273. 
 
 (/■) Takoi\ from section 55 of Ihc repealed act 4 Wm. IV. cap. 1, ns nniendcJ 
 by'Stat. 22 Vio. cup. U?,, s. 4. 
 
 (g) The powers conferred nre— 
 
 1. To alter and amend the form of writ, inj'inrtion, return and precepts. 
 
 2. To make su di ordera respecting costs aa to them ceemu just. 
 
 Hi, 
 
SS. 71, 72, 73] OVEUIIOLDINO TENANTS. 
 
 573 
 
 p. 1, ns niiicmleJ 
 
 71. (A) Tf any person, required by notice from any such runuii, unt 
 Commissioner to attend as a witness upon the in(iuisition (/) !in"s IZT 
 refuses or wilfully omits to attend, (/) ho shall be liable to '"''^^'"'' 
 be committed upon the warrant of the Commissioner to 4iio 
 Common Gaol of the County for a term not exceeding ono 
 month, (k) 4 Wm. IV. c. 1, s. 57. 
 
 73. (0 If ""y witness «worn (or aflirmed) (m) and rnjury. 
 examined before a Commissioner holding on inqui'<ition as 
 aforesaid, wilfully swears or affirms falsely, he shall be liable 
 to the penalties of wilful and corrupt perjury, (h) 4 Win. 
 IV. c. 1,8. 57. 
 
 7SI. ('>) Except as hereinbefore expressly enacted, nothinj; Aii.tii.r 
 herein contained shall prejudice or affect any other right of i7m' ii'.ll'aV'^ 
 action or remedy which landlords may possess in any of the '*''^'"'' 
 cases hereinbefore provided for. (p) 19 Vic. c. 43, s. 270. 
 
 3. To ninko orders rrsiioctiii!^ tlio is?np of a writ to the slierifT, nnimian(1in!» liirn 
 to levy costs, «tc., a.s rL'sppfting t)ie issue of an attaehnieiit lor iKm-pnyiuent 
 tlioreof, as to tlicm seoiiiH just. 
 
 The court will not grunt nn nttachtnent against an overholding tenant for non- 
 pnvnK'nt of costs until an order to jmy them has been first served upon him niid 
 a (iuuiaiid made: In re MeLachlan, 3 U. C. Q. B. 331. 
 
 (h) Taken from section 57 of repealed act 4 Wm. IV. cap. 1. 
 
 (»■) For form: see 10 U. C. L. J. 3. 
 
 {j) It is not every non-attendance that will subject the witness to the penalties 
 of this section. The witness must "refuse" or "wilfully ouiit" to attend — in 
 titi\er case there must bo an act of the will — contumacy, not accident. 
 
 (i) »'. e. 7ho common gaol of the county wherein the inquiry is being had or 
 intended to be liad. 
 
 (/) Taken from section 57 of repealed act 4 Wm. IV. cap. 1. 
 
 (m) The comnjissioner has power to administer an oath or ailirmation to wit- 
 nesses produced by either party : section *5i). 
 
 (>i) Perjury is the wilfully taking of a false oath (or aflirmation) in some jndi- 
 eiai proceeding before a person liaving competent nu'hority to administer it, and 
 in matter nuiterial to the point then in question, whether the jiarty lie believed 
 or not : see Hawk I'. (.'. b. 1, c. (19, .=. 1. If a man swears to a faet which hai)pen3 
 ti) l)e true, but of which he has no knowledge whatever at the time he swears, it 
 is C(jiially perjury : lb. s. 0. 
 
 (o) Taken from C. L. P. Act 1850, s. 270, the origin of whiih was Kng. Stat. 
 16 <t Irt Vic. cap. 76, s. 218. 
 
 [p) A landlord may bring ejectment in n county court (where the yearly vnlne 
 
 of tiie premises, or the rent payable in respect thereof, does not exceed $2UU) in 
 the following cases : 
 
574 
 
 EJECTMENT. 
 
 [8. 74. 
 
 m 
 
 .t-4 *i 
 
 
 ■%■ 
 
 Pi 
 
 111 
 
 
 u 1^;; 
 
 iiitirtt;ii){t'v. 
 
 MOHTGAOES. 
 
 Action of 74' (9) In cnso an action of Ejectment be brougbt by 
 
 i.n.iiKiit i.y any niorfgnpee or his apsipnees (r) for the recovery of the 
 poHseHHiun of any mortgaged lunda, tenements or hcrcdita- 
 nicntH, (k) and no suit bo then depending in the Court of 
 Cliunccry for or touching the foreclosing or redeeming the 
 same, (/) if the person having right to redeem, (m) appears 
 and becomes Defendant in such action, (t?) at any time pcnd- 
 
 1. WliPH! tlic iorm nn<l Interest of the tenant shall have expired or been deter- 
 niineil by the landlord or the tenant bv a le^al notiee to quit. 
 
 S. Where the n-nt hIibH be sixty days in i t< ir, and the landlord hnvr rijrht 
 by law to re-enter for non-payment the>eof : 8tat. 23 Vic. cap. 43, 8. 1, 
 
 So in ease u tenant after bin lease or rij^ht of occupation, whether created by 
 writinty or by verbal agreement, hn- expired or been determined either by the 
 landlord or tenant, or wroniffully refuses upon demand in writing to go out of 
 possession of the land demised, application may be made to the county jud>;e, 
 who nuiy exercise in respect of the complaint many of the powers of a cuminis- 
 sioner, as described in the foregoing sections: 8tat. Out. ai Vic. cap. 2«i, s. 2. 
 
 (7) Taken frrun C. L. P. Act ISSti, section 271, the origin of which was En;;, 
 Stttt. ir» A It) Vic. cap, 70, 8, 2rJ; taken from Eng. Stat. 7 (Jeo. II. cap. 20, g. 1. 
 
 (»•) Allhougli plaintiff being a niortijngee after the commencement of an action 
 by him receive notice Iroiii a subsetjuent mortgagee not to part with the title- 
 deeds, tlie <-ase is still within the statute, and a rule will be granted directing 
 such tirst mortg-igee on payment of princi|ial, ititerest and costs, to deliver up 
 the title deeils to llio mortgagor: JJixon v. W'ii/rain, 2 C. «t J. »513. 
 
 («) The net of 7 Geo, 11. cap. 20, s. 1, which is still in force, extends also to 
 actions broui;ht " on any bond for payment of the money secured by such mort- 
 gage or performance of the covenants therein mentioned," which words iiavo 
 been helil to itidude actions on covenants cont^tiiied in the mortgage: Hiniiioiitt 
 al V. Vulliir, 1 Kx. 457. The section here annotated is restricted to actions of 
 ejccttneiil, and applies only to mortgagees not in possession: Sullon v. Juiirliiifin, 
 S Ex. 41*7 ; who have not attempted to exercise powers of sale, if there be suuli 
 in their mortgiiges : Jb, 
 
 (t) There should bo an affidavit of this fact: Wllkimon v. Traxton, 1 Sehvyn's 
 N. P. 13 ed, 020. See note i to section 75. 
 
 (m) a person will not be held to hnvo the right to redeem if by denying the 
 plaintiffs title he assumes n position inconsistent with that of the mort^iigor: 
 Jtoe V. W'linllr, 3 Y. <b C. 70. Nor if he has contracted to sell his ecjuity of 
 redemption to the mortgagee: GoodtiHe d. 7'i/»um v. J'ojte, 7 T. U. 185, 
 
 before ho can take the benefit of 
 '887 ; Doe d. llnr»t et al v. Cli/ton, 
 4 A, A K. 814. The court has no jurisdiction until after appearance; //'. If a 
 mortgagee recover possession of mortgag»*d premises under a judgment in an 
 undefended ejectment the court has no jurisdiction to restore on payment of debt. 
 Interest and costs, the possession to the mortgaijor who has not appeared : Doe 
 d. Tttfib V. Jioe, 4 Taunt. 887. Unless the mortgagor make himself defendant, tlio 
 court will not interfere cither under the statute or iu the exercise of its i/eneral 
 power over actions in tbo court: Doe d. Hurst et al v. C'ti/toti, 4 A. iIe E. 814. 
 
 (v) An appearance by the party is neces.sary 
 this section : Doe d. Tuhb v. line, 4 Tautit. 8( 
 
 t 
 
 
 J,'f/ .i4i 
 
 ^^' 
 
8. 74.] 
 
 EJECTMKNT BY SIORTaAQEE. 
 
 575 
 
 or been deter- 
 
 xton, 1 Si'lwj-n'3 
 
 ing the action, (w) and pays unto such niortj:agce, or in 
 ca!<u of his refusal to accept brings into the Court where the 
 action is depending, (//) all the principal moneys, and interest 
 due on such mortgage, (2) and also all puch costs as have 
 been expended in any suit at law or in e(|uity thereupon, (a) 
 (gucit uioney for principal, interest and costs, to bo ascer- 
 tained and computed by the Court where the action is pend- 
 ing, or by the proper officer by such Court to be appointed 
 for that purpose), (b) the moneys so paid or brought into 
 
 Tito fiief. of tlie roortgngor's nppcarnnce ought to bo shown in his aflulavit: Doe 
 J, Cox V. JJi-uwn, 6 l»owl. r, V. 471. 
 
 (h) I e. bffore judgment: Wilkinson v. Trnxton, \ Selwyn's N. P. 13 cd. C20; 
 Aim^ V. Hoyd, 8 Vi'8. it H. 15; Doe d. Tubb v. Roe, 4 Taunt. 887 ; but beo Doe 
 I Milhurne v. Sibbald, 4 O.S. 330. 
 
 (;/) If the section were strictly construed it would seem to eontomplnte tlmt the 
 mi)rti:nu;or should tirst tender the money to |>lain'..iif, nnd that only in ciino "of 
 lii< iiriisiil" will the mortgaj^or be entitled to make application to tlu' court. But 
 imiirv the Rtntute of (Jeo. II. in which the exprcsfsion used corrcspontln precisely 
 Willi that of this section, it was not usua' for the utKduvit to state that the money 
 luui been tendered : FUbee v. Hopkins, tf D. dc L. 264. 
 
 (-■) The court of Queen's Hench stayed procccdini;s \ipon payment of principal, 
 intiicst and costs, in an ejectment liy i)liiintiir claimini; under a deed >disoluto 
 ii|Mi?i its face, wliere it appeared that the deed was in truth a security lor money 
 li'iii : h f d Shiilfr et at v. Miicleun. 4 O.S. 1 ; and n-fuscd to permit plaintiff to 
 lucliitle in the redemption money a simple contract debt due to him by the mort- 
 t'ttgiir: Jb. 
 
 ((I) The leiijislnture intend to exonerate tlie mortjrn£»or from the delay nnd 
 oxiiin-^e of an etpiity suit to redeem, but not to deprive the mortifai^ce of any 
 I'l^nity. To avoid such delay and cx|)ense they authorize the court of law, in 
 wliicli the mortgagee may bring his action to afford relief upon a summary appli- 
 cntii II ; but the legislature do not purpose to lessen the tine wliiih in ci|uity the 
 iiiuiii;iii;or should pay for the redemption of the her«!ditaments pl('d;;c(l: Sutton 
 V, Ji'iiriiiii/x, 3 Kx. 411, ittr I'ollock, V. IJ. Where a mortgagee in pursuance of n 
 Jtowcr of side attentpteil to ilispoae of the property, the court rcfiHcii to compel 
 Iiiiii to re-convey the premises and deliver up the title-deeds, except upi>n jiuy- 
 meiit of the costs of tlie abortive attempt at sale: Dowel v. .Vntlf, li» W. 11. 627. 
 S(i where the instalments on a mortgage were by mistake for a larger sum than 
 wu-i advanced, and the mortgagee on discovering the iiustake gave an under- 
 taking on a separate paper, iMt under seal, tliat only the correct sum should bo 
 tlt'iiiaiided, and afterwards assigned the mortgage, and the assignee brought nn 
 actiim against the mortgagor for non-payment of the instalments as si-t out in the 
 niDitgage, the court refused to stay proceedings on payment of the siiin really 
 due, Ijcing lu8S than the sum which according to the face of the mortgage was 
 due: /i.tljif V. Milite, 5 ()..S. 7t>. As to costs: see ul.so (JoodriiflU v. Moon, liurnes, 
 ITti; Doe d. Capj>* V. Cuj'jin, 3 Bing. N. C. 768. 
 
 CO The intention of the section is to break in ujion the jurisdiction of the 
 court of chancery only to the limited extent of perfectly plain cases on admitted 
 
576 
 
 EJECTMENT. 
 
 [s. 74. 
 
 i=i ..; 
 
 
 i 
 
 mi 
 
 Is '.'»• 
 
 * ■ 
 
 _, , , such Court shall he deemed and taken to be in full fntlsfac- 
 luorttfajjf. tion and discharge of such mortgage, (c) and the Court shall 
 discharge every such raortgngor or Defendant of and from 
 the siime accordingly, (tf) and shall by rule of the same Court 
 compel such mortgagee to assign, surrender or rcconvoy such 
 mortgaged lands, tenements and hereditaments, and such 
 estate and intcreiit as such mortgngeo has therein, and to 
 deliver up all deeds, evidences and writings in his custody 
 relating to the title of such mortgaged lands, tenements and 
 hereditaments unto the mortgagor who has paid or Irouulit 
 such moneys into the Court, or to such other person as lie, 
 for that purpose, nominates and appoints, (e) 10 Vic. c. io. 
 s. 271. 
 
 f.icts or facts cnpiiMo of ascortainincnt by tlio wiiy orVumrily pursued, on n^'Ahm ii 
 tlio common law courts: J)oe d. llnrrhtm rt al v. Lwh, 6 l>. <& L. iiTrt, j'tr ('nb. 
 ri<>ge, J. TliiTcforo tito court of Ciiieen's Ut-nch rciiHi"! to stiiy procfcilincjs in 
 ejectment on a tnorttfmjc on piiymont into court of tiio monny dim upon the nuirt- 
 gage, togotiier witii tlio costs in ttie action, wliere tiic wliolo amount sccurod liy 
 tlie inortgaiio was not ndinitteil to be duo, and refused a rcforenco to tiie lnn^lte^ 
 to ascertain tbu amount actually due in sucli case: Ihic </. McKcuzk ft al v, 
 Rnthrrford, 1 U. C. Q. B. 172; Uoodtitlc d. Fisfirr v. liishop, I Y. <k J. 311; we 
 also Ilimm v. Jleieson, 4 Yes. 103. So where the right to redeem was di>puteil: 
 800 section 75. 
 
 (c) The court has power to order n rc-conveyanco and delivery over of tillo 
 deeds: see iJiionv. Wii/ram, 2 C. & J. f 5; Snudon ct al v. Collier, 1 Ex. -I.jT; 
 and conelusiou of this section. 
 
 (d) A judge in chamborg might exercise the powers conferred upon the court by 
 this statute: Hnicrlon ct al v. Collier, 1 Ex. 457; I.iwrcune v. Hoijben, '26 I.. .1. \'.\. 
 05. llo-jmyment to the mortgagco of the expenses of i)utting up the morti^mjiil 
 property to sale may be made a condition of a rule to stay proceedings: JJoiclev. 
 Kealc, 10 W. 11. 027. The section does not apply to cases whero the mortgagee 
 is in possession : Sutton v. Kawlings, 3 Ex 407. 
 
 (e) The formal part of the rulo when nini may be ns follows — " Show cause 
 whv upon the defendant bringinq into this court all the principal moneys and 
 ii st due to the plaintff upon his mortgage upon the premises for tlie recovery 
 of possession of which this action is brought, and also all such costs as have been 
 expended in any suit or suits at law or in equity upon such mortgage (sui-Ii 
 money for principal, interest, and costs to be ascertained, computed, and taxed 
 by the master of this court), the money brought into this court should not bo 
 deemed and taken to bo in full satisfaction and dischnrgo of such mortgaije, nnd 
 upon paj-uu'ut tiieroof to tho plaintiff why all proceedings in this action sliouid 
 not bo sta^'ed, and why tiie mortgaged premises and the plaintilfs estate and 
 interest therein should not bo assigned, surrendered, and re-conveyed ; and why 
 all deeds, and evidences, and writings relating to the title of such mortgaged 
 premises, and in tho custody and power of tho plaiutitf, should not be delivered 
 up to tlie defendant or to such person or persons as ho ahall for timt purposo 
 Qomiuate mid appoint: Pat. MacN. & Mar. I'rac. OIU. 
 
 
S 7-').] WHERE THE UKiFIT TO REDEEM IS C<».NTF.STEn. 
 
 577 
 
 7S- (/) In case the person apainst whom the reilomptiiiij N,.t to 
 is prayed, insists (by writing under his h:iiul or the li;uul ' ^ iswiuie 
 of his Attorney, Agent or Solicitor.) that the p:irty praying I!',*i,rm'I,r 
 a rcileniption has not a right to redeem, (/i) or that the pre- '!'! ,Z.''»ilT 
 miscs arc chargeable with other or different principal s;nns 
 tlion what appear on the face of the niort-rnijo, or aro ad- 
 niitted on the other side, (i) and delivers su< vriting to the 
 Attorney or Solicitor for the other side, before the money is 
 brought into Court, or in case the right of redemption to the 
 mortgaged lands and premises in question in any cause or 
 suit be contravened or questioned by or between difforent 
 Defendants in tho same cause or suit, (j) nothing in the last 
 preceding section contained shall extend to any such cause or 
 suit, nor shall any thing therein contained be of any proju- 
 
 (/) Taken from C. L. P. Art ISoCi, spction 272. the ori^'in of whiili win Mii-;, 
 Slat. 15 ik 10 Vic. cap. 76, a. 220; which was tukun from Stat. 7 liuoiiju II. ciiji. 
 20, 9. 3. 
 
 (/() A jmrty who assumes n position inconsistent with that of n inort[;a;^or, for 
 instiuici', by (lis[iutin<^ tho niort^ja^eo's title, will not he ciititlt'd to reilt'ein : AV 
 V. \\'(tnllr, a Y. »t C. 70. Nor if adm'ttinij morl^jniref's title he has confraoteil to 
 ?fll the eiiuitj- of redemption to liim: O'omllille <l. 'JUi/Kinu v. I'ope, 7 T. U. 185. 
 Wliere A, hnvinj j.urchnseJ a lot of land, and paiil several iiistulnients of the |iur- 
 clmsc money, bn! hnvini; received no deed and beinij unable to meet the remaining; 
 iiistHhiients, nssit^ncd liis rifjfht to H, tnkinij a bond from him that if he .slioiilil 
 oiitain tlio deed ,>n tho jmymcnt by A to him of £l."!o in two years, h(? wmilil 
 convey the land to A; lleUl on ejoetment brought by 15, the two years Imving 
 i'Xl>ired, that A was not entitled to treat tho bond as a mortgocje, and redeem ou 
 payment of principal, interest and costs : Doe d. Shannon, v. Jioc, T> C).8. IS 1. 
 
 (i) Tho statute does not apply where the ritfht to redeem is disputed upon 
 otfiilavits: Gooillitle d. Km/nTV. Ilishop, 1 Y. & .1. 344. IJut in order to deprive 
 tiie niortgfai^or of hia right to redeem, it is not sutlieient that the mortgagoe 
 siiould in the notice mentioned in this section mnko n mere general statement 
 thai he insists that tho mortgagor has no right to redeem, and that t lie mort- 
 gaged jiremises arc chargeable with other sums than appear on the faeo of the 
 uioitgage deed or than aro admitted by tho mortgagor: O'ood/ille </. /^oh v. J.on»- 
 f/'^i'H, » Anst. 937; Doe d. Jfurrinon e't al v. Jxnuh, 6 I). & L. 270; but sec J'Wm 
 v. Jliiidhiit, Jf>. 264, Knough must be stated by tho mortgagee to enable the 
 C'lurlto deter-Tiino what the question is between tho parties: Jk,f d. Harrison tt 
 al v. I^Hch, lb. 270. The ulterior demand and its amount must also bo stated : 
 <iooJtitlc d. Leon V. Lomdown, 3 Anst 937. 
 
 (j) T lero is a material change in the language of this clause, as it advances to 
 siK'oify another case to whidi the statute shall not extend, wiiere, instead of 
 speak' ng of notices and their interests, it speaks of the right of redemption being 
 C'mtro.erted between different defendants. Here it is not enough to insist by 
 notice in writing, but the fact of t!ie dispute must bo made out in order to get rid 
 of the defendant's applicatioB: Doc d. JIarriton et al v. Louch, 6 D. dc L. 275, per 
 CyJeridge, J. 
 
 37 
 
:)i 
 
 EJECiMENT. 
 
 [S. TU. 
 
 i^ 
 
 1^" • i 
 
 dico to nny .■^ulKSCijiiont inortgago or subsequent cncuiu- 
 bi'ince. 19 Vie. c. 4.'J, h. 'J7li. 
 
 HlXfUnV KOIl COSTS. 
 
 wii.ii tho 76. (0 If imy person brings an action of Ejectmeot after 
 
 iiiiiisi'Mu.'iit a prior uction of Ejectuieiit (m) has been unsuccc.<)8fully 
 
 til. "m'ii.m' brought by liitu or by any person through or under whom lie 
 
 Iniiuli- claims, ugaiii.Ht the same Defendant or against any person 
 
 (I) Taki'ti from C. L. 1*. Act, 1850, scctiou 273, tlio urigin of which was En'', 
 Stat. 17 it IS Vic. cap. 12.'), s. 93. 
 
 (.v») Tliu peculiarity of tho action of ejectment is that n claimant may liti^nte 
 a titlu ni ire tlian oiioe, no one action hvAms an estoppel to subsequent uctiuns 
 bct\V(!on liio name partief* or tliuir ropresentativea: see note y to hcction 40. This 
 privili.'L;u, uiilos-i carefully watched by the courts, miijlit bo productive of vexa- 
 tion and expi'iiso. Jkcause of tliis, tlio courts bavo exorcised the jurisdiction of 
 rttayiiiij pruoiicdinu^s in u Hubscriuunt until payment of costs incurred in the yro^if- 
 cutioii of a prior ejectment : Kcene d. Ani/el v. Angel tt al, G T.ll. 740 ; Doe d. I'ddon 
 V. Jiof, 8 T. It. Ol.'j ; Dof d. Pincliard v. Hoe, \ East. 585 ; Benn d. Mortimer el uz. 
 V. De-in, JJarnos, 180; />)« d. Iluasey v. Roe, K T. 3 Vic. MS. U, & 11, Dig. " Eject- 
 ment," vi. 4. "Tho reason why tho court slays proceedings on a second eject- 
 jnent is to prevent vexation, fjr it is in tho power of a person to bring as ninny 
 ejectments as he pleoses unless lio has been enjoined to the contrary by the court 
 of Chancery, which this court has no power to do. Thoroforo where n plaintirt 
 Las had judgment in a former lyectment against Iiim and is for bringing a new one, 
 we cannot deny it to him absolutely, but as it is as a creature of tiie court, and 
 an o<iuitable proceeding, wo grant it him upon paj'ing tlio costs ond making the 
 recompense for tho vexation he hod caused in tho prior ejectment:" Dned. Duehm 
 of Iluniillon v. Atherly et al, 7 Mod. 422, per Loo, C. J. Where a plaintiff, having 
 failed in an action, brings a second action for substantially the same cause, unless 
 the plaintiff satisfy the court that a reasonable canso of action exists, the proceeding 
 is so prima facie vexatious and harassing that th« court will stay tho r econd oction 
 until tho costs of the former action have boon paid: Cobbett y. Warner, L. U. 2 Q. 
 B. 108. Tiie practice prevails in cases whore the second or snbscquont action is 
 between tho representatives of the original parties or the representatives of either 
 nf them, as much as if between the original parties themselves : Doe d. Ftldon v. 
 Roe, 8 T. U. 645; Doe d. Charxberi v. Law, 2 W. Bl. 1180; Doe d. Duchtsi ij 
 Hamilion v. Atherly et al, 7 Mod. 420; Doe d. Standith et al v. Roe, 5 B. <b Ad. 
 878 ; Doe d. IleighUy v. Harland et al, 10 A. A E. 761 ; and in cases where the 
 ae..*ond or subsequent action, though not for tho same land as the former suit, 
 depends upon the same title : Keene d. Angel v. Angel, 6 T. R. 740 ; Doe d. JleighUy 
 V. Harland et al, 10 A. 4 E. 761 ; Doe d. Brayne tt ux. v. Bather, 12 Q. B. 941 ; 
 although tho previous action may have been in a court diflPerent to that in wbicli 
 the etiit is stoycd: Doe d. Chamberi v. Law, 2 W. Bl. 1180; Doe d. Carthew etal 
 V. Brenton, 6 Bing. 469; see also Wade y. Simeon, 1 C. B. 610; and if there was 
 jurisdiction in the court in which the action was first entered to try it: IJodgton 
 V. Grahiim, 26 U. C. Q. B. 127; and if plaintiiT had an opportunity to try it on 
 the merits: see Iloare v. Dickion, 7 C. B. 164. But it has been said that a limi- 
 tation of tho practice is that it is only exercised in cases where the previous 
 ejectment has been tried, and not where the plaintiff in such prcTious ejectnidDt 
 abandoned his suit before trial, because in such cases there is little vexation and 
 very little expense: Short v. King, 2 Str. 681 ; Doe d. Stlby v. Aliton, 1 T. B, 
 
 I 
 
 
s. t 
 
 0.] 
 
 SECURITY FOR COSTS. 
 
 679 
 
 which wus £□;'. 
 
 through or under whom he defends, the Court or a Judge (»i) <!- rfi to 
 may, («) on the application of the Defendant at any time iuiVoVt«. 
 after his appearance entered, (p) order that the Claimant 
 shall give to the Defendant stcurity for the payment of 
 costs, (q) and that all further proceedings in the cause shall 
 be stayed until sueh security be given, whether the prior 
 action was disposed of by discontinuance or by non-suit, or 
 by Judgment for the Defendant, (r) 10 Vic. c. 43, s. 273. 
 
 491 ; Dne d. lilaekburn v. Slanduh, 2 Dowl. N. S. 2" ; Doe d. McKiiij v. Roe, 
 M. T. 6 Vic. MS. R. A IT. Di^'. " Kjectmont," vi. 5. Wiiether this limltiition caii 
 now be sustained is a matter of doubt: see Dot d. McLtoi v. Johnston, 1 Cham. 
 R. YAW; Ferrier v. Moodie, 1 Troc. R. 151; Orimahawe v. While et al, 3 Prac. 
 R. 320; see also Z)ai;j» V. Wcller, 6 Prac. R. 150. Ihit if the forfeituro in res- 
 pect of which the oction be brouglit bo a nCW forfeiture, tiie second action will 
 not be stayed: Bell v. Cuff, 4 Prac. R. 15^; so if it can bo sliowu tiiat the 
 previous suit was instituted and conducted without plaintiff's knowledge and 
 privity : sec Souter v. Wattt, 2 Dowl. P. C. 263. The rule to stay proccwlings in 
 cases such ns already mentioned is not, however, an inflexible one. If it bo made 
 to appear that in the previous ejectment plaintiff was nonsuited in consequence of 
 tlie fraud or perjury of defendant, no stay will bo granted: Doe d. Rets v. Thomas, 
 2 B. it C. 622. "tiiis section is nn extension of the principle contoinod in the 
 foregoing cases. The court now has authority not only to stay proceedings until 
 piiyment of the costs of a previous ejectment, but^until security do given wr pay- 
 ment of costs in the pending suit. 
 
 (n) Relative powers: see note to to section 48, C. L. P. Act. 
 
 (o) Tlio decision of a judge in chambers, when made in the exorcise of a sound 
 discretion, will not be the subject of an appeal to tho court: note w to section 18, 
 C. L. P. Act. 
 
 ip) Until appearance defendant is without a locus standi in tlie conrt : see note 
 m to section 8. This was also the rule as to moving to stay proceedings for non- 
 payment of costs in a previous suit under the old practice: Doe d, Flanders tt al 
 v. Jioe, 3 U. C. Q. B. 127. In a second ejectment for the samo premises between 
 Uie same parties proceedings were thus stayed, and plaintiff, disregarding it, pro- 
 ceeded, and was non-suited for not confessing lease, ontry and ouster. Defendant 
 thereupon moved to set aside the proceedings, but tho affidavit was so worded as 
 to be evidently made in the first cause; the court notwithstanding overruled 
 the ol)jection and set aside tho proceedings: Doe d. Lake t. Davis, 3 O.S. 811. 
 In answer to an application to stay proceedings until payment of tho coats of a 
 previous suit, it has been held enough for plaintiff to deny that bo claims nnder 
 tho same title as in tho former ejectment: Doe d. Bailey et at y. lienuett et ux. 
 9 Dowl. P.C. 1012; see also Doe d. Eoans y. Snead et al, 2 D. li: L. 119. 
 
 (?) This, it is apprehended, means tho costs of the pending suit in which appli- 
 cation is made, and has no reference to any former suit. Though the apnearance 
 is in ejectment the issue, the entry of it does not prevent defendant applying for 
 security for costs; Crowe et al v. MeGuire, 3 U. C. L. J. 205. 
 
 (r) The power to stay a suit until payment of tho costs of a previous eoit is 
 not in general exercised unless where the previous suit bus been brought down to 
 trial and tried : see note n to this sectioa 
 
 MM 
 
580 
 
 KJKOTMKNT. 
 
 [s8. 77, 78. 
 
 It I- 
 
 Court niny 
 esorciiii' tlin 
 
 JUniHPICTION OF TlIK COURT OVER rROCEKDINOS. 
 
 yy. («) Tho several ('ourts and the Judges thereof rcs- 
 
 •*•"•• i'"'"- pectively, may and shall ezerciao over tho proceedin-rs io 
 
 foniu'iiy Kjectmcnt under this Act, tho liko jurisdiction as furmcrlv 
 
 owMiiiiKs in exercised in tho old action of cjcctnicnt, (t) so as to ensure a 
 
 triul of tho titlo and of actual ouster when necessary, (i/) and 
 
 for all other purposes for which such jurisdiction might have 
 
 boon exercised. («) 19 Vic. c. 43, s. 274. 
 
 Beii notions "^S- (") No writ of right patent, writ of right (juht ihmi- 
 nbuiuutU. „,jj remisit curianif writ of right close, writ of right dr ratio- 
 nahili parte, writ of right upon disclaimer, writ of right of 
 ward, writ of ccssavtV, quod permit tat, formedon in descender, 
 remainder, or in reverter, writ of Assize of novel di.ssoi.sin, 
 nuisance, or mort d'ancestor, writ of entry sur disseisin in 
 tho quihus, in tho perf in the per and cut, or in the po.st, writ 
 of entry sur intrusion, writ of entry mr alienation, dum full 
 noil coini>o8 mentis, dilm/uit infrd eetatcm, dum fuit in jm- 
 sona, ad communcm lejcm, in casu proviso, in consimili castt, 
 cui in vita, sur cut in vita, cui ante divorlium, or sttr cui ante 
 divortium, writ of entry sur abatement, writ of entry quare 
 cjci'it in/nl terminum, or ad terminum qui prateriit, or causa 
 matrimonii prxlocuti, writ of aiel, besaicl, trosaicl, cosinago, 
 or nupcr ohiit, writ of waste, writ of partition, except such 
 as authorized by Statute of this Province; writ of disceii, 
 writ of quod ei dcforceat, writ of covenant real, writ of ir«r- 
 
 («) Token from C. L, P. Act, 1850, section 274, tho origin of which wns Eng. 
 Stot. 16 «fe 16 Vic. cop. 76, s. 221. 
 
 {t) An action of ejectment stands on a different footing to an ordinnry cnsc: 
 Mobbav. Vandenbrandf, 12 W. 11. 406, per Blnckburn, J. ; b. c 33 L. J. (l K 177. 
 The real defendant or real plaintiff, wlien unsuccessful, though not parties to tlic 
 record, may bo ordered to jiay costs : Hutchinson et ttl v. Greenwood tt al, 4 Kl 
 4:B. 824; Thcrntony. Wilkimon, 11 W. R. 916; Mobbi y, Vandenbrande ttui. 
 4 B. «& S. 904. 
 
 (u) See section 30. 
 
 (v) The English C. L. P. Act continues, " and the provisions of all statutes not 
 inconsistent witli the provisions of this act, and whicli may be applicable to the 
 altered mode of proceeding, sliall remain in force ond bo applied thereto." As to 
 making parties substantially defending the action pay costs, though not parties to 
 the record, see note r to section 26 oftbis act. 
 
 (a) Taken from our Real Property Act, 4 Wm. IV. cap. 1, section 89, the origin 
 of which woa £og. Stat. 8 <1e 4 Wm. IV. cap. 27, s. 86. 
 
e. 70.] 
 
 CERTAIN REAL ACTIONS AROMSnED. 
 
 681 
 
 ranti'a chartfK, writ of curia cliiiuhutla^ (t) and no other 
 attion, real or mixed, (except a writ of dower, or writ of 
 dower niuli: nihil hihct, or nn Kjectmcnt) ; (»•) and (except a Kx.vpUoni. 
 plaint fur duwer,) no plaint in the nature of any fiuch writ or 
 action shall bo brought. (</) 4 Wui. IV. c. 1, s. 39. 
 
 79. ('•) When on the first day of January, one thousond s ivinif r,.r. 
 eight hundred and thirty-uix, any person whoso rij,'ht of 'i'!'"'-!!* 
 entry to any laud had been tuken away, by any descent ctt.st, "i''''.Ti.yl!^ 
 discontinuance or warranty, inij^ht have maintained any such ,',«'„" '.'n'lL 
 writ or action, as aforcsiid, (/) in respect of sue h land, such {iljo.'""*'"^'' 
 writ or action may bo brought after the said first day of 
 January, ono thou.sand ei};ht hundred and thirly-six, but 
 only within the period durinj^ wliich, by virtue of the provi- 
 siun.s of the Act respecting the litnitatiun of actions and suits 
 relating to real property, &c., an entry might have boon 
 made upon the same land by the person bringing such writ or 
 action, if his right of entry had not boon so taken away, ('n) 
 4 Wm. IV. c. 1, 8. 41. 
 
 A which wns Eng. 
 
 octlon 89, the origin 
 
 (i) By those fictions, fortnrrly, nil ilispiitos rotiiMTniiii; rciil cstnto were decided, 
 bill llii'V Imvf hcfii liiiiu; sinrc laid iisidc in iinu'ticc, on account of tlic ^jrciil nicoty 
 roi|iiircd ill llu-ir iimiiai^ciiicnt., uiid the incoiivchii'iit Iciiiith ol' their in-ucir^^. iind a 
 nnicli more exiicdilioiis melhod of trviiijj titles Imviiii; lieeii sifice iiiirodiiccd by 
 other acts, and juuticularly by »jcctniciit: 3 Slepli. Com. cd. .'!'.>.'». 
 
 (<•) The real and mixed actions whicii hnvo pscnjjod the jjcincral demolition of 
 their class are, writ of ilower, writ of flower undi- niliil haovt, and cjectineiit. T)io 
 two first of these nre a|i|ilicable, and are the |iro|ier forma to be ii-i'd, where 
 the lieiniindant claims lands or tonemcnfs by the jiarticular title of dower; tlio 
 tir~t beiii;; npi>licable whero a wfniian is endowed of jiart of her dowir, and is 
 deiirived of the residue lyini; in the sanu! town by the same tenant Iiy whom she 
 wiis endowed of jiart ; and the second, in all other cases where she is entitled to 
 (lower: ;> .Sle|ih. Com. C cd. .'i'.il ; but it is now by statute declared tlint nn nctioa 
 of dower shall bo conimcuced by writ of sunmiona: Stat. Unt. lili \ ic. cap. 7. 
 
 ('/) A writ of ri;jht by journeys accounts sued out after the time limited in the 
 Entrlish net waa held to be a nullity: Davi'S v. Lowmlra, 2 I». it L. "J7'2; b. c. 
 I'hill. C. 0. 328. It seems that an action of debt does not necessarily lie for rent 
 ill coiisiMnicnce of the abolition of real actions: Varlcij ct al v. Li'ijh, 2 Kx. 400, 
 P'tK,,1Ic, IJ. 
 
 ('■) Taken from our Real IVoperty Art, 4 Wm. IV. cap. 1, s. 41, the origin of 
 which wa.s Eng. Stat. 3 it I AVm. iV. cap. 27, s. ;i8. 
 
 (/) «. t. Such as mentioned in the preceding section. 
 
 f A) Tills savinc; is still in operatiim, hut the riuhts preserved by it, if nny still 
 oxi-tiiiij, must be enforced within the time allowed by the section. IJv '* w'll in 
 ITb'J au cstuto wua devised to A. fur life, with rcmuiuUer us he bhould by deed 
 
082 
 
 Ki) ili'Mcrlit, 
 wurriiiiiy, 
 Ac. t<> iNir 
 • ritflit uf 
 
 EJKCTMENT. [88. 80, 81. 
 
 80- (0 No descent cnst, discontinuance or warranty, which 
 may have happened or been made since the first day of July, 
 one thousand ei^ht hundred and thirty-four, or which way 
 happen or bo made, shall toll or defeat any ri^ht of entry 
 or action for the recovery of land. (/:) 4 Wm. IV. c. 1, s. 42. 
 
 81' The following forms are those referred to in the fore- 
 going sections of this Act. 
 
 h- 
 
 
 
 w 
 
 
 ?'■»: 
 
 ' t ' 
 
 \'V 
 
 1*- 
 
 m 
 
 
 ■H^ 
 
 i ■' 
 
 w 
 
 
 ekl,. 
 
 ' > '■ ■ 
 
 U-: 
 
 ■Pi' 
 
 
 :: • j; 
 
 i''j 
 
 VicToniA, •to. 
 
 FORMS. 
 No. l.—(ri(/r Section R.J 
 
 To X., Y. on<l Z. ftiul nil persons Piililli-d to (Iffciid tlio possession of [<h»crile 
 the property xeilh reasonable cirtninti/,) in llio Townsiiip of , in tlio I'onnty 
 
 of , to tho possession wliercof A. li., uml <\ Honio or one of tiieni, eliiiui to 
 
 bo (or to liuvo been on and siiicu tlio duy o' , A.D. ) cnlilluil, 
 
 Aud to c-juut nil otiicr persons tiierefroin. 
 
 Those are to will nnd cotnmnnd you or nueli of yon ns deny llio alleged titlu> 
 witliin sixteen days of tlie scrvicu hereof, to nppeiir in onr Court of , to 
 
 defend the suld properly or sueh jmrl thereof as ycni itiuy l>e a<lvised, in defuult 
 whorcof Judgment uiuy bo signed, and you turned out of possession. 
 
 Witness, Ac. 
 
 No. 2.— (J '/(/t Section 15.) 
 In the Q. IJ. (or C. P.) 
 Tho day of , ono thousand eight hundred and 
 
 Writ.) 
 
 (date of tin' 
 
 or will appoint ; nnd in dnfanlt of nppointmcnt rctnninder to tho lieira of his body, 
 with remainders over. In 17'J0 A. levied a tine to the use of himself in fee, and 
 afterwards diinl without issue. It was held in an ejeetnient by the lessors of the 
 plaintiff clainiini; ns heirs-atlaw of A. that the fine created a diseontinunnee, niul 
 gave a tortious fee to A. and that his heir-at-law was consequently entitled to 
 recover in ejectment, tho remainders over beinij devested, and tho rights of the 
 remainder-men only being capable of being enforced by real action. In such a 
 case the section hero annotated j)reserves tlie right of the remainder-man to bring 
 A formedon: see Loe d. Gilbert et al v. Koss, 7 M. A W. 102; Seymor'a Case, 
 10 Rep. 00, a ; Doe d. Cooper v. Finch et al, 4 IJ. &. Ad. 283; Doe d. Jones et al 
 V. Jones, 1 B. «fe 0. 238; 2 Sug. V. A P. 11 cd. 013; 1 Ilaycs Conv. 6 ed. 237. 
 
 (0 Taken from onr Real Property Act, 4 "Wm. IV. cap. 1, 8. 42, tho origin of 
 which was Eng. Stat. 3 A 4 Wm. IV. cap. 27, s. 39. 
 
 (k) In general a right of entry was taken away (or tolled) by tho descent so cast 
 (as tho term was) npon tho i sir of an abator, intruder or disseisor, and yet if tho 
 clnimnnt were under any legal disability during the life of the ancestor, by whom 
 tho ouster was effected, such ns infancy or the like, tho descent had no such 
 operation: 3 Steph. Com. 6 ed. 515. It is now declared that no descent cnst, 
 <fec. which may have happened or been since 1st July, 1834, or which may !ia])- 
 pen to bo made, shall toll or defeat any right of entry or action for recovery of 
 ■and. 
 
8. 81] FORMS. 58:i 
 
 Ci>unty of 
 to wit: 
 
 \ 
 
 inniU' *»» vii*i noitt ff aiv, I ii*:! t-i"i vj IV i.-i 1 <fii:->iiii-| I'll llllll tlU' PIIMI y f ««r/ ( rtir fittntm *'f 
 
 the periima in whom tilU i» alltyed in the. Writ,) ilo rocuver iios-onuioii of tim luiiil 
 ill the Huiil Writ iiiciiliuiiuil, with tlio n|>i>urt<.'iiunou!i. 
 
 , ) On tlic tliiv nml year nbovp written, a Writ of our T.mly thu 
 . J Qiii't'u i:<sui'tl (lilt of iliis (.'oiirt in tlicr^c wonl^, tlnit is to sny : 
 
 'icTor.iA, Ac. {opt/ lilt irri7,)antl nn no npiiciiriuicf hn* ln-cii mti'rrtl or ticfcncc 
 Ic to tim Hniil Writ, tlipri'forc it 1* i-oimidcrcd that tlie miiij {nmnt lUr nniiifn <■/■ 
 
 - .„ ..L i:ii. .■- .11 . ...I :.. ,1 . II- .-. ,1 . » .1 . "■ 
 
 (<l>(<- </ tht 
 
 No. n.— ( I'/.fc Sfclioim 15 nnd ic.) 
 In tho Q. 11. (or r. 1'.) 
 
 On tliu (lay of , one thoiisainl I'i^lit liiiixlrcil niul 
 
 Writ.) 
 
 County of , ) On lliu day and yi'ar aliovc w riltcn, a writ of our \.w\j tin- 
 
 to wit; J (iuecn inMiiuif out of tliis ( C'lrt, in iIkso wmili, tlmt is to Hay: 
 
 VlcToniA, Ac, {enpy thf. Writ,) aiul ('. 1). lias on the «l)iy of . a|ii>cari'd 
 
 by , lliu Attorney (or in jii-rson), to tlio saitl Writ, and Inw defended for a 
 
 jiart of tlio land in tlio Writ, mentioned, that is to hiv 'niiit,' llif /hirt), iwA no 
 uH|M'aranco lias lieon ('iitered or del'enee inado to the sai ! Wri', exci-pt as to tin' 
 HuiJ part ; Theruforo, it is ermsidered that tiie saicl A. M., (f V claimuni), do reeover 
 po-iHi'ision of the land in tiie said Writ iiicntioned. cxeept. the said p:iit, with tho 
 appurtenances, and that he liavo cxeeiition thereof t'lilhwith ; and as ••> llie r'*t. 
 li;t u Jurj' come, ttc. 
 
 ■J and 
 
 [(hile of the 
 
 No. 4.— ( r«(y<; Section 16.) 
 In tho Q. B. {or C. P.) 
 
 On tlio day of , one thousand ci<;1it hum: 
 
 yirU.) 
 
 rnuiity of , I On the day and year ahovo written, a Writ of o\i, ^. ridy the 
 
 to wit: J t^ueen issued out of this (.'ourt in tiiosu words, lliat. is to say; 
 
 VicToiiiA, ttc. (co/'.y the \S'rit,) nnd 0. I), has on ti.i day of , appeared 
 
 by , his Attorney, {nr in pi-rson), to tlie said Writ, and defended for fin' 
 
 whole of tho land therein nieatiouud; TluMet'oro, let u .luiy cuiue, itc. 
 
 No. fi.—( r«"(/i Section 21.) 
 
 Afterwnrd.s on tho day of , A. I)., heforo .Tustiee of our 
 
 Lnily the tiueen, nssiifnod to \\\\w tho Assizes in and for tiie within Coiiiity, came 
 the parties within mentioned, and a Jury of the sjiid Couiily iieiii<; sworn \<> try 
 thu matters in rjuestion between tiie said iiarties, upon tiicir oalli, s.iy: That A. 
 I], {the. claimant), within mentioned, on tlie day of , .\. 1»., wa.- 
 
 and still is entitled to tho possession of the land wiliiin mentioned, u-> in tlio Writ 
 allc'ijfd; Tlierefore, &.C. 
 
 No. 6.— ( Vide Section 42.) 
 , one thousand eijjht hundred and 
 
 , 5 On the day and year ahove written, a Writ of our J".'«ly tht 
 J Queen issued out of tiiis Court in tiiese words, that is to say: 
 
 In tho Q. B. (or C. V.) 
 
 On tlie day of , one thousand eif^ht hundred and , {date of lh» 
 
 Mrit.) 
 
 County of 
 to wit: 
 
 ViCTOttiA, <tc. {copy the ^Vrit,) and C. 1>. has on tho day of , appeared 
 
 by , his Attorney {or in person), to the saiil Writ, and A. B. has diseon 
 
 tinned the action ; Therefore it is consiijered tiiat tln^ said ('. 1). be acipiitted, nnd 
 tliat he recover against the said A. B. $ (or £ ) for liis costs of dellnce. 
 
 ■&'> 'fi 
 
584 
 
 EJECTMENT. 
 
 [8.81, 
 
 
 mxi 
 
 
 No. 7.— ( Vlile Section 44.) 
 In the Q. B. {or C. P.) 
 
 On tlie (lay of ' \ one thousand eight hundred and , {dalt of Writ. ) 
 
 County of , | On the day and year above written, a Writ of our Lady the 
 
 to wit: J CJueen issued out of this Court, in these words, that is to say: 
 
 ViCToniA, Ac. {copy the Writ,) and C. D. has on the day of , appeared 
 
 by , liis Attorney, {or in person), to the said Writ, and A. B., has failed to 
 
 proceed to trial, althonsjh duly required so to do; Therefore it is considered that 
 the said C. D. be acquitted, and that he do recover against the said A. B. $ {or 
 £ ) for his costs of dafence. 
 
 In the Q. B, (or C. P.) 
 The day of 
 
 No. 8. — ( Vide Section 45.) 
 
 {date of thb 
 
 , ) On the day and year above written, a Writ of our Lady the 
 J Queen issuetl out of this Court in these words, that is to say: 
 
 one tliousand eijrljt hundred and 
 Mnl) 
 
 County of 
 to wit: 
 
 ViCToaiA, <fec., {cop;/ the Writ,) and C. D. has on tlie day of , appeared 
 
 by , his Attorney, {or in person), to the said Writ, and the said C. D. has 
 
 confessed the said action {or Ims confessed tlie said action as to part of the said 
 land) that is to say: {sttte the part) ; Tliereforo, it is considered that the said A. B. 
 do recover possession of the land in the said Writ mentioned, {or of the said part 
 of tlie said land) with the appurtenances, and $ (or £ ) for costs. 
 
 In the Q. B. {or C. P.) 
 
 No. 9.— ( Vide Section 59.) - /"^ >i > 
 
 Tlio day of , one thoupand eiglit hundred and , {date of Writ.) 
 
 County of , ) On the day and year above written, a Writ of our Lady the 
 
 to wit: y Queen issuccl out of this Court, with a notice thereunder writ- 
 
 ten, the tenor of wliicli Writ and notice follows in these words, that is to sa}-: 
 
 {Copy the Writ and Notice, which latter may Ic as follows:) 
 
 Tnlfo notice that you will be required, if ordered by the Court or a Judge, to 
 give l|ail by yourself and two surtieicnt sureties, conditioned to pay the costs and 
 damages which shall be recove'^d in the action. 
 
 And C. D. has appeared by , his Attorney, {or in person), to the said 
 
 Writ, ond has been ordered lo give l)ail ])ur.suaiit to the Statute, and has failed so 
 to do; Therefore, it is coiu'Jorcd that the said {landlord's name) do recover jios- 
 session of the land in the ^aid Writ mentioned, with the appurtenances, together 
 vrith ^{pr £, ) for cosU of suit. 
 
 w 
 
 1 
 
 |^ 
 
 1, " 
 
 t. 
 
 f 
 
 \ V. ,. 
 
 
 fow 
 
 »f ^ ■.-■ 
 
 il. I 
 
COMMON LAW PROCEDURE AMENDMENT ACTS. 
 
 Stat. Can. 29 & 30 VicToniA, Cap. 42. 
 
 An Act to amend the Convmon Laio Procedure 
 Act of Upper Canada. 
 
 \AsHinkdUi Vdih Axigmt, 186C.] 
 
 Whereas it is desirable to make certain amendments in the preamUe. 
 Common Law Procedure Act of Upper Canada : Therefore, 
 Her 3Iajesty, by and with the advice and consent of tho 
 Legislative Council and Assembly of Canada, enacts as fol- 
 lows: 
 
 1. In addition to any cases in which a defendant in any A>Miii<mni 
 suit is now entitled to obtain security for costs from a plain- ^^M'iVthe 
 tiff, security for costs may be granted to tho defendant or lliily I'.i'tnk 
 applicant fn^'any suit or proceeding in which it is made to tvsts.""^ '"' 
 appear satisfactorily to the Court in which such suit or pro- 
 ceeding has been instituted or taken, or to any Judge in 
 chambers, that the plaintiff has brought a former suit or pro- 
 ceeding for the same cause which is pending cilho" in Upper 
 Canada or in any other country, or that ho has judgment or 
 rule or order passed against him in such suit or proceedinj?, 
 with costs, and that such costs have not been paid, and such 
 Court or Judge may thereupon make such rule or order stay- 
 ing such proceedings until such security be given as to such 
 Court or Judge shall seem meet, (a) 
 
 9. In any suit or action in which any verdict is renJerod r'i»< rest 
 for any debt or suui certain, on any account, debt, or pro- iniM tue 
 
 I i> 1 II I • 1 p • niiiliring ol 
 
 miscs, such verdict shall bear interest at the rate of six per th.^ wnUct 
 cent, per annum from tho time of the rendering of such ver- c;i.si's. 
 diet, if judgment is afterwards entered in favour of the party 
 or person who obtained such verdict, notwithstanding tho 
 entry of judgment upon such verdict has been suspended by 
 
 ('() See R. G. Pr. 23, and notes thereto. 
 
 l3i ' 
 
 
 4l% 
 
 m 
 
 i> '^\ 
 
586 
 
 COMMON LAW PROCEDURE AMENDMENT ACTS. [SS. 3-6. 
 
 
 
 As to Jiuii- 
 ageti. 
 
 Uouiits as to 
 till- cttWt of 
 judgments 
 on e<iuitablo 
 
 <l«ft'Il('('S 
 
 removed. 
 
 1' 
 
 Not toapjily 
 to i>unciing 
 <-ases, &u. 
 
 1 ■ f .' 
 
 
 ( 
 t 
 
 Stiiy of pr.i- 
 cenlings if 
 
 suit for 
 
 V 
 
 »:imo cause 
 is |>fiiding 
 "Utof U.C. 
 
 the operation of any rule or order of Court which may be 
 made in such suit or action, and in all cases damages shall be 
 assessed only up to the day of the verdict, (i) 
 
 3* Whereas doubts exist as to the e£fect of equitable 
 defences pleaded in suits at law, and it is desirable to remove 
 such doubts; — if the defendant in any suit at law shall plead 
 any equitable defence, and judgment shall be given against 
 such defendant upon such equitable plea, such judgment shall 
 be pleadable as a good bar and estoppel against any bill filed 
 by such defendant in equity against the plaintiff or represen- 
 tative of such plaintiff at law, in respect to the same subject 
 matter which has been brought into judgment by such equi- 
 table defence at law ; but nothing in this section shuil apply 
 to any suit or action commenced and pending before the pa.ss- 
 ing of this Act, which shall be decided upon as if this Act 
 had not been passed, and this Act shall not be construed as 
 declaring that such judgment at law on an equitable defence 
 has not been heretofore a good bar to a suit in equity on the 
 same subject matter, (c) 
 
 4. If any suit or action is brought in any Court of Law or 
 Equity for any cause of action for which any suit or action 
 has been brought and isi pending between the same parties 
 and their representatives in any place or country out of Upper 
 Canada, such Court or any Judge thereof may make a rule 
 or order to stay all proceedings in such first mentioned Court 
 of Law or Equity, until satisfactory proof is offered to such 
 Court or Judge that the suit or action so brought in such 
 other place or country out of Upper Canada is determined or 
 discontinued. (tZ) 
 
 3. [Repealed by Stat. Ont. 31 Vic. c. 25, s. 1.] 
 
 6. [Repealed by Stat. Ont. 31 Vic. c. 25, s. 1.] 
 
 If 
 
 (t) It is to be observed tbat nil verdicts do not bear interest, but only such as 
 are rendered " for any debt or sum certain, or any account, debt, or promises : 
 see note n to section 15 C. L. P. Act. 
 
 (c) Sec C. L. P. Act, section 124, notes p. 175. 
 
 {il) See notes to R. G. Pr. 23. 
 
 t-ir.'. 
 
 
 
 
 
 P'r 
 
 
 i> 
 
 
s.1.3 
 
 COMMON LAW PROCEDURE AMENDMENT ACTS. 
 
 587 
 
 STjkT. Okt. 31 Victoria, Cap. 24. 
 
 All Act to Amend the Cominon Law Procedure 
 
 Act. 
 
 [Assented to 4</t March, 1868.J 
 
 Whereas, it is desirable to amend the Common Law Pro- 
 cedure Act ; Therefore, Her Majesty, by and with the advice 
 and consent of the Legislative Assembly of Ontario, enacts 
 as follows : (e) 
 
 1. The three hundred and twenty-fourth section of the 
 Common Law Procedure Act is hereby repealed, and the 
 following section shall be substituted for and stand in lieu 
 thereof : 
 
 "If the Plaintiff, in any action of trespass or trespass on 
 " the case, recovers by the verdict of a Jury, less damages 
 '■ than eight dollars, such plaintiflF shall not be entitled to 
 '•'recover, in respect of such verdict, any costs whatever, 
 •■ whether the verdict be given on an issue tried, or judgment 
 '' has pa.ssed by default, unless the Judge or presiding officer, 
 '■ before whom such verdict is obtained, immediately after- 
 '■ wards, or at any future time to which he may postpone the 
 '' consideration of the matter, certifies on the back of the 
 •' Ilecord in the form hereinafter prescribed, to entitle tho 
 'plaintiff to full costs; and in case such certificate be not 
 '' granted, then the defendant in such action shall be entitled 
 " to set off his costs against such verdict and recover Judg- 
 " mcnt and issue execution against the plaintiff for the balance 
 " of such costs as between attorney and client, unless the 
 '• said Judge or presiding officer shall certify as hereinafter 
 ■' provided upon the Record, in manner aforesaid, that the 
 " defendant is not entitled to recover his costs in the cause 
 '• against the plaintiff." 
 
 (' ) See C, L. P. Act, section 324, and notes tliereto. 
 
 rreaiiiblf. 
 
 Sec. 321, 
 (Join. Law 
 I'riicciiiiie 
 A.t, ru- 
 puakd. 
 
 Ill tn spass 
 or case, 
 |ilaiiitiir t<> 
 ri'iiivir iKi 
 <'.sts if Mr- 
 
 llirt lie ll'SS 
 
 liiaii fi.S, iiii- 
 
 IvS.S .111(1(^1' 
 
 cfi-tilies ctr- 
 tuiu facts. 
 
 If.Juilp'.l., 
 not certify, 
 (k'fetiilunt 
 to set oir 
 liis rosts, 
 unless 
 .Tmlp- ccrti- 
 liis that Ill- 
 is not cilti- 
 tlea. 
 
 
 ^A 
 
 
588 
 
 COMMON LAW PROCEDURE AMENDMENT ACTS. 
 
 [s. 2. 
 
 Hi' 
 
 Ji?l| 
 
 Sec. 328, 
 Com. Law 
 Proccduro 
 Act, ru- 
 
 JK'Ullill. 
 
 In inferior 
 iiourt aiv 
 tiuii8 
 
 broiinlit ill 
 siiiH'iior 
 nourts : 
 
 If JudRG 
 
 fi'rtitiis 
 ci'rfaiii 
 fiu'ts jilaln- 
 tiir U) rc- 
 oovcr full 
 
 COJitS. 
 
 If .Indfre 
 crrtillcs rcr- 
 taiii facts, 
 plaintiff to 
 rocover 
 oosts of 
 Court in 
 wliicli ac- 
 tion hIiouKI 
 liavd iirjon 
 tirought. 
 
 3. The three hundred and twenty-eighth section of the 
 Common Law Procedure Act is hereby repealed, and the 
 following shall stand in the place thereof: (/) 
 
 " 1. In case a suit of the proper competence of a County 
 Court bo brought in either of the Superior Courts of the 
 Common Law, or in case a suit of the proper competence of 
 a Division Court be brought in either of such Superior 
 Courts, or in a County Court, the costs shall be taxed in the 
 manner following : 
 
 " 2. In case the Judge, who presides at the trial of the 
 cause, certifies in open Court, immediately after the verdict 
 has been rendered, or at any future time to which he may 
 then postpone the consideration of granting or re fussing the 
 certificate, that it is a fit cause to be withdrawn from the 
 County Court or Division Court, as the case may bo, and 
 brought in the Superior Court or a County Court, as the 
 case may be, the plaintiflF shall recover his costs of suit 
 according to the practice of the Court in which the action 
 is brought, in like manner and subject to the like deduction 
 or set-ofF for costs of issues upon which the defendant may 
 have succeeded, as he would have done and would have 
 been subject to in case his suit had been of the proper com- 
 petence of the Court in which the action is brought. 
 "3. In case the Judge, who presides at the trial of the cause 
 certifies at the time aforesaid that the plaintiff had reason- 
 able ground for believing he had the right of withdrawing 
 his cause from the County Court, or Division Court, as the 
 case may be, and bringing it in the Superior Court, or a 
 County Court, as the case may be, and that the defendant, 
 without just reason, defended the same, the plaintiff shall 
 recover his costs of suit according to the practice of the 
 Court in which the action should have been brought in like 
 ■janner, and subject to the like deduction or set-off for 
 costs of issues upon which the defendant may have suc- 
 ceeded, as he would have done, and would have been 
 subject to in case he had brought his action in such inferior 
 court. 
 
 (/) See C. L. P. Act, section .328, and notes thereto. 
 
83. 3, 4] COMMON LAW PROCEDUaE AMENDMENT ACTS. 
 
 689 
 
 Court, as the 
 
 « 4. la case the Judge, who presides at the trial, shall not irju.iprio 
 " ceitify as aforesaid, the plaintiflF shall recover only County liiit'itiV'to' 
 " Court costs, or Division Court costs, as the case may be, rT-riliurt'*' 
 <' and the defendant shall be entitled to tax his costs of suit Lim ^I'^u: 
 " as between attorney and client, and so much thereof as ex- twdtTll't 
 "cecds the taxable costs of defence which would have been i'" i"" togts. 
 « incurred in the County Court or Division Court, shall, on 
 '< entering judgment, be set off and allowed by the taxing 
 '• offieer against the plaintiff's County Court or Division Court 
 " costs to bo taxed, or against the costs to be taxed, and the 
 •' amount of the verdict if it be necessary, and if the amount 
 '< of the costs so set off exceeds the amount of the plaintiff's 
 « vcidict and taxed costs, the defendant shall bo entitlud to 
 " execution fur the excess against the plaintiff." 
 
 3 The certificates may be as follows : (g) 
 
 '' I certify to entitle the plaintiff to full costs." 
 "Or, 
 
 " I certify to prevent the defendant deducting costs." 
 " Or, 
 
 " I certify to entitle the plaintiff to County or Division 
 " Court costs." 
 
 Form of ccr- 
 
 tilli;at«.'S. 
 
 4 The two hundred and seventy-first section of the said srr. 2:1, 
 Common Law Procedure Act is repealed, and the following ivoowiure 
 shall bo substituted therefor : (A) y^liJa' 
 
 "1. In case a part only be made by the Sheriff on, or by in wimt 
 " force of any execution against goods and chattels, the siirntrx en- 
 " Sheriff shall be entitled, besides his fees and expenses of iluaudugv. 
 " execution, to poundage only upon the amount so made by 
 " him whatever be the sum endorsed upon the writ, and 
 " in case the personal estate, except chattels real, of the dc- 
 •• fendant or defendants be seized or advertised on, or under 
 '' an execution, but not sold by reason of satisfaction having 
 '' been otherwise obtained, or from some other cause, and no 
 " money be actually made by the Sheriff on, or by force of 
 '^ such execution, the Sheriff shall be entitled to the fees and 
 
 '. ^^ Km 
 
 J 
 
 ^^' 
 
 V j 
 
 P. 
 
 (g) See note w to section 824 of C. L. P. Act. 
 
 (/t) Sec C. L. P. Act, section 271, and notes thereto. 
 
590 
 
 COMMON LAW PROCEDURE AMENDMENT ACTS 
 
 [8.4. 
 
 C( 
 
 When 
 ShiTitr en- 
 
 tltll'fi.tO 
 
 iiiili'iip' and 
 fr.rs only. 
 
 ¥,. 
 
 
 
 expenses of execution and poundage only on the value of 
 " the property seized not exceeding the amount endorsed on 
 " the Writ or such less sum as a Judge of the Court out of 
 " which the Writ issued may deem reasonable under the cir- 
 "cumstances of the case; Provided, also, in cases of Writs 
 " of execution upon the same judgment to several Counties* 
 " vrhereia the personal estate of the judgment debtor or 
 " debtors, has been seized or advertized, but not sold by rea- 
 « son of satisfaction having been obtained under or by virtue 
 " of a Writ in some other County, and no money has been 
 " actually made on such execution, the Sheriff shall not be 
 " entitled to poundage, but to mileage and fees only for the 
 " services actually rendered and performed by him, and the 
 " Court out of which the Writ issued or any Judge thereof 
 " may allow him a reasonable charge for such services, in case 
 " no special fee therefor be assigned on any table of costs. 
 
 " 2. In case any person liable on any execution shaU be 
 " dissatisfied as to the amount of poun< age fees and expenses 
 who Mmy"'*' " of execution that any sheriff may claim under the tariff of 
 " fees and allowances now in force, or under this Act, be 
 " may before or after payment thereof, apply to the Court out 
 " of which such Writ issued, or to any Judge thereof, and 
 " if, upon a statement of the whole facts, the said Court or 
 " Judge, after notice to the Sheriff, is of opinion that such 
 " amount is unreasonable, notwithstanding it may be aocord- 
 " iug to the tariff, or this Act, the same shall be reduced or 
 " ordered to be refunded upon such terms as to costs or other 
 " wise, as the Court or Judge may think fit to impose." 
 
 If imity ilis- 
 sutislieil, he 
 niiiy iijiiily 
 
 ilui'c tho 
 
 UIM'Mint. 
 
EXECUTIONS AGAINST GOODS AND LANDS. 
 
 31 VicToniA, Cap. 25. ^ /^^ /^y / (-J^-wy^ '^'-> 
 
 vliv Act as to Executions Agaitist Goods and 
 
 Lands. 
 
 [Astcnted to iUt March, 1868.] 
 
 Whereas, by an Act passed in the session of Parliament, rrcuuWe. 
 hold in the twenty-ninth and thirtieth years of Iler Hajcsty's 
 reign, chapter forty-two, intituled "An Act to amend the 20&:iov.. 
 Common Law Procedure Act of Upper Canada," the prin- 
 ciple is recognized of allowing persons who have priority 
 executions in regard to goods, to retain the same in regard to 
 lunds; but difficulties exist in applying the said Act by 
 reason of its enactment that the Sheriff shall return writs 
 against goods only, in the order of priority in which thoy 
 come to his hands, whilst, nevertheless, a person having a 
 first execution against goods is entitled to renew the same 
 indefinitely without any return thereof : Therefore, Her 
 Majesty, by and with the advice and consent of the Legisla- 
 tive Assembly of Ontario, enacts as follows : 
 
 1. Sections five and six of the said Act, and the two MtiMW, 
 hundred and fifty-second section of the Common Law Pro- •'( anirt. 1'. 
 cedure Act, are hereby repealed and the following substituted njrau'.i"'^' 
 therefor: (i) 
 
 " Any person who now is or hereafter may become entitled Writ!. 
 
 .. . . till ii>.'(iin»t 
 
 to issue a writ of ex,££uUon against goods and chattels may, lamis may 
 at or after the time of issuing the same, issue a writ of execu- Hamc time 
 tion against the lands and tenements of the person liable, and aKuTnst" 
 deliver the same to the Sheriff to whom the writ against 
 goods is directed, at or after the time of delivery to him of 
 the writ against goods, and either before or after any return 
 thereof J Provided, always, that the Sheriff shall not expose 
 
 (t) See C. L. P. Act, section 262, and notes Ibcreto. 
 
 goiidf.. 
 
502 
 
 EXECUTIONS AGAINST GOODS AND LANDS. [ss. 2-5. 
 
 
 '!■■! 
 
 I'l'ovlso— 
 I^uikIm iii)t 
 
 t<> \n' Hllld 
 WltlllU li 
 
 ymir. 
 
 No s.ilii of 
 l.'in<l» until 
 ri>turii uf 
 nulla buiut. 
 
 Wlicn nulla 
 'hoiKi not to 
 1)0 retiiniud. 
 
 IttllLMlc'l)t 
 
 i.H roiilizeil 
 uiiilor writ 
 a^iiiiist 
 ^ciods. 
 
 Writs to 
 luivo same 
 (tllrct lis 
 
 heretofore. 
 
 the lands fur sale, or sell within less than twelve months from 
 the day on which the writ against the lands is delivered to 
 him." 
 
 12- No sale shall be had under any execution against lands 
 until after a return of nulla bond, in whole or in part, with 
 respect to an execution against goods in the same suit or mat- 
 ter by the same SheriflF. {j) 
 
 3- No Sheriff shall make any return of nulla bond, either 
 in whole or in part, to any writ against goods until the whole 
 of the goods of the execution debtor in his county have been 
 exhausted. (Jc) 
 
 \. If the amount authorized to be made and levied under 
 the writ against goods be made and levied thereunder, the 
 person issuing the writ against lands shall not be entitled to 
 the expenses thereof, or of any seizure or advertisement there- 
 under; and the return to be made by the Sheriff to the writ 
 against lands shall be to the effeci that the amount has been 
 Hu maac, and levied, as aforesaid. 
 
 S. The said writs against lands and goods shall have the 
 same operation and binding effect as heretofore, and the law 
 applicable heretofore on executions shall continue applicable, 
 except so far as variance is requisite, by reason of the enact- 
 ments hereof. 
 
 {j) A more simple procedure would have been to have authorized the /. fa, 
 to issue against both goods and lands at once, with a stay of proceedings against 
 lands till the goods were exhausted: see OUason v, Gleaton et al, 4 Trac. li. 119, 
 per Adam Wilson, J. 
 
 {k) Though the sheriff may be prevented by this provision from returning of 
 his own mei-o motion a second or subsequent writ in cases within the act, until 
 he returns tlie first writ the court is not necessarily excluded from directing or 
 coutroling its own process, and may, where the first execution practically 
 exhausts the goods, order the second to be returned nulla bona while the first is 
 in the sheriff's hands: Oleason v. Oleason et al, 4 Prac. R. 117. But now that a 
 Ji. fa, against lands may, under section 1 of this act, be issued at or after tlie 
 time of the issue of the fi. fa. against goods, and before or after any return 
 thereof, there will be no need to make this extraordinary jurisdiction in order to 
 enable a subsoqnont execution creditor to have execution against goods and lands 
 in the sheriff's bunds at the same time. 
 
 •V :. 
 
 § li 
 
 
shall have the 
 
 THE LAW REFORM ACT. 
 
 32 Victoria, Cap. 0. 
 
 The Law Reform Act of IS^S. 
 
 [AMentedto 19</i December, 1868.] 
 
 Whereas the multiplicity of Courts of inferior jurisdiction Prcamiiic. 
 entails great and unnecessary expense upon the country, and 
 it is advisable to amend the laws relating thereto, and to 
 make certain other provisions with a view to lessen such ex- 
 pense : Therefore, Her Majesty, by and with the advice and 
 consent of the Legislative Assembly of the Province of 
 Ontario, enacts as follows : 
 
 1. Sections thirteen and fifteen of chapter fifteen of the s^ph. 13 an.i 
 Consolidated Statutes of Upper Canada respecting County o;,K*8tat?'' 
 Courts, are hereby repealed from the time this Act shall take Jii/eaicd. 
 effect ; but nothing herein contained shall invalidate any pro- 
 ceeding theretofore had or taken in any of the County Courts 
 of this Province. 
 
 j}. The several County Courts of this' Province from the county 
 time this Act shall take eficct, shall hold two terms in each 
 year, to commence respectively on the first Monday in July 
 and January in each year, and end on the Saturday of the 
 same week ; except the County Court of the County of York, 
 which last mentioned Court shall hold three terms in each 
 year, to commence respectively on the first Monday in the 
 months of January and April and the last Monday of August, 
 in each year, and end on the Saturday of the same week. 
 
 3. The sittings of the said County Courts for the trial of Sittings for 
 issues of fact and assessment of damages, shall thenceforth be Umts, &o. 
 held semi-annually, to commence on the second Tuesday ia 
 the months of June and December in each year; except the 
 County Court of the County of York, which last mentioned 
 Court shall hold three such sittings in each year, to commence 
 respectively on the second Tuesday in the months of March, 
 July and December in each year. 
 38 
 
 ml 
 
 ■4 
 
 
 ■M 
 
594 
 
 TDB LAW REFORM ACT. 
 
 [88. 4-7. 
 
 ■ y •^' '" 
 
 * •} ■ 
 
 I' 4 U' 
 
 ilintioii abu- 
 
 How costs 
 regulated. 
 
 COUNTY COURTS* EQUITY JUHiaDICTION-nEPEAL. 
 
 County 4* SoctioDS thirtj-tbrcu, thirty-i'uur, tbirtv-fivo, thirty-six 
 
 equity juris- thirty-seven, thirty-eight, thirty-nino, forty, forty-one. forty- 
 two, forty-three, forty-four, forty-fivo, forty-six, forty-seven 
 forty-eight, forty-nine, fifty, fifty-one, fifty-two, fifty-tbrcc, 
 fifty-four, fifty-fiye, fifty-six, fifty-seven, fifty-eight, fifty-nine, 
 sixty, sixty-one, sixty-two, sixty-three, sixty-four, sixty-five, 
 sixty-six and sixty-nine of the said statute, chapter lit>ccD, 
 respecting the equity jurisdiction of tho County Courts, are 
 hereby repealed from the time this Act shall take oiTect, 
 except as t^ Afiy suit or proceeding then pending ; but any 
 suit or proceeding then pending may be prosecuted and pro- 
 ceeded with as if this Act had not passed. 
 
 2. In any suit or proceeding, which, before the passing of 
 this Act, might have been brought, instituted or carried on 
 under the equity jurisdiction of the County Courts, and 
 which may hereafter be brought or carried on in the Court 
 of Chancery, the stamps required, and the fees, costs and 
 charges payable in respect thereof, shall be on a scale bearing, 
 as far as practicable, tho same proportion to the stamps, fucs, 
 costs and charges payable in other suits or proceedings in 
 the said Court of Chancery, as the stamps, fees, costs and 
 charges in actions in County Courts bear to the stamps, fees, 
 costs and charges in actions in the Superior Courts of Com- 
 mon Law; and it shall be lawful for the Judges of the said 
 Court of Chancery to prepare a table of fees, costs and 
 charges applicable to all such proceedings. 
 
 S, [Repealed by 33 Vic. c. 7, s. 13.] 
 
 GENERAL SESSIONS. 
 
 See. 3, chap. ®» Section three of chapter seventeen of the Consolidated 
 stkt'ulc. Statutes of Upper Canada, relating to Courts of Quarter Ses- 
 r6i)eai«d. gjQpg gf ^q Peace, is hereby repealed from the time this Act 
 
 shall take effect, 
 ocnerai Ses- 7* The Courts heretofore known as the Courts of Greneral 
 heidVemif Quarter Sessions of the Peace in acd for the several counties 
 exccpt'in ^"^^ uniou of «ounties in this Province, shall, after this Act 
 Y^rk.^**' takes effect, be called and known as the Courts of General 
 
 SesstoDS of the Peace of the respective counties, and shall 
 
dfl. 8, 9.] 
 
 TUB TiAW RKFORM ACT. 
 
 1505 
 
 thenceforth bo held gemi-annunlly to commence oa the 
 second Tuesday in the months of June and December in each 
 ye»r; except in the County of York, in which Counfy (he 
 gaid Courts of General Sessions of the Peace shall he held 
 throe times in the year, to commence on the second TucKl;iy 
 in the months of March, July and December in each year, no 
 that said sittings may como as nearly as may be mid way 
 between the sittings of the Court."' of Oyer and Terminer and 
 General Gaol Delivery in and for th*. several Counties of this 
 Province- 
 
 8, The fees and charges payab'o and pertaining to officers 
 of the County Court, the Jury fees, the Law Stamps of fees 
 of office, and tho dues and duties payable to the Crown npon 
 all actions, suits or proceedings, brought in the County 
 Courts and tried or assessed in tho Superior Courts, shall bo 
 
 F'-os not 
 
 chargeable and paid as if the same were 
 
 being 
 
 tried 
 
 or 
 
 assessed in the County Courts as hitherto ; and no other fees, 
 stamps or dues, shall be chargeable thereon, and the CV^rk of 
 the County Court shall be entitled to receive and take such 
 part thereof as pertains to him, to his own use. 
 
 0. lu amendment of section two of chapter eight of the 
 Act of the Parliament of tho late Province of Canada, pas.sed 
 in the twenty-third year of Iler Majesty's reign, it i.s hereby 
 enacted that the appointment of constables and high con- 
 stables may hereafter be made at any sitting or adjorrncd 
 sitting of the said Courts of General Sessions of the I'eacc. 
 
 2. Section one of chapter one hundred and twenty-ono of 
 the Consolidated Statutes of Upper Canada, entitled " An Act 
 respecting the expenditure of County Funds for certain pur- 
 poses within Upper Canada," is hereby repealed; and in lieu 
 thereof it is hereby enacted, that all accounts and demands 
 preferred against the County, the approving and auditing 
 whereof heretofore belonged to the Quarter Sessions, shall 
 henceforth be audited and approved by the Board of Audit 
 hereinafter mentioned (a) of the respective counties and union 
 of counties; and in amendment of section three of the said 
 
 •j:n'i<'. iha}.. 
 
 S, S(;c. •.'. 
 
 .Sic. I, cliai' 
 iJI, I'mi. 
 .M it. V.i.'. 
 reiiciilfd. 
 
 («) The words in Ualiet were not ia the act as originally passed, bat hare been 
 slaoe added by amendment : see Stat. 33 Vic. c. 8, a 1. 
 
50G 
 
 nre law rriorm act. 
 
 [s.O. 
 
 ■.t! 
 
 M' 
 ^'> 
 
 ."tut 
 •iPir'ndcil 
 
 i.'imiity iic- 
 
 i;UUIltH llnW 
 
 mid wlii'ii 
 
 .n. Hinp. Act; it is licnby enQctod, that Buch account* and tlomands 
 
 'tut.'u""'. sliall hciiccftMth be doliverod to the Clerks of the l*',ace of 
 llio respective counties on or before the first day of each 
 General Scs^ions of the Teacc, and of each sittincj of the 
 Courts of Oyer .md Terminer and General Gaol Delivery in 
 the respective counties and union of counties. 
 
 3. (A) Such of the said accounts and demands as shall Ic 
 dclivcrod on the first day of the sittinps of the said Courts of 
 General Sessions of the Peace or of Oyer and Terminer and 
 General Gaul Delivery, shall bo audited by a Board of Audit 
 composed of the Chairman of the Court of General Sessions 
 of the Peace and two other persons, who shall be appointed 
 annually for that purpose by the County Council of such 
 county or union of counties, at their first meeting in each 
 year, not more than one of such persons being a member for 
 the time being of such County Council; and such accounts 
 and demand shall bo taken into consideration ia the week 
 next succeeding the week in which such sittings ended, and 
 disposed of as soon as practicable. 
 
 4. In amendmenC of sections one and four of chapter one 
 "'/, '('■nil'.''' ' hundred and twe'ity-four of the Consolidated Statutes of 
 
 Upper Canada, 'jntitled "An Act respecting the returns of 
 Convictions anU tines by Justices of the Peace, and of Fines 
 levied by Sherifis," it is enacted, that the returns of convic- 
 tions and fines by Justices of the Peace therein mentioned, 
 shall heiiccforth be made to the Clerks of the Pence instead 
 of the Courts of Quarter Sessions, and shall be made quar- 
 terly on or before the second Tuesday in the months of 
 March, June, September and December in each year, and 
 shall embrace in every instance, all convictions not embraced 
 in some previous returns, and shall be published and fixed up 
 by the Clerks of the Peace in manner in the said fourth sec- 
 tion provided, within two weeks after the times hereby limited 
 for the making of such returns; and in amendment of section 
 five of the said Act, the words " Minister of Finance of the 
 Province" shall be strnek out of the said section, and the 
 words "Trenfiirer of Ontario" inserted in their place. 
 
 Si.(M. 1, 4 
 
 ami 
 
 I 
 
 >Stut U.C 
 
 niiieiidetl. 
 
 (6) This sub-section was substituted by Stat. 33 Vic. cap. 8, 8. 2, for the original 
 section. 
 
as. 10-12.] 
 
 THE LAW RE»'ORM ACT. 
 
 m 
 
 a, 2, for the original 
 
 IlECOIlDEnS" roL'llTS UKrKAI, 
 
 10* Sections thrco hundred and sixty, three linndred n ' i!.^riirfi.r«' 
 gixty-eight, throe hundred and Hixty-tiino, three hundred and ■ 'iimiiH- 
 se.'cnty, three hundred and sevonty-throo, three liundrcd and rMr.'i, rnV.*^ 
 seventy-live, three hundred and seventy-six, three hundred J,','.,', ( .In rt, 
 and seventy-seven, three hundred and Heventy-ei;;ht, three '''"''"'''^■'' 
 hundred and seventy-nine, thrco hundred and eijjhtyone, 
 thrco hundred and eighty-two, three hundred and eii:hty- 
 threo, tlirce hundred and eighty-four, three hundred and 
 cighty-Cvc, three hundred and eighty-six, three hundrcil and 
 eighty-seven, thrco hundred and eighty-eight, and tliroe hun- 
 dred and niuety-fiiur of the Act of the Parlianiont of tlie l;ite 
 Province of Canada, passed in tlio session held in the twnity. 
 ninth and thirtieth years of Tier i^Fajesty's reign, entitled 
 '•An Act respecting the ]Munlclp:il Institutions of Upper 
 Canada," and all letters patent issued to any Recorder uinlor 
 the siiid section three hundred and eiglity-one, are hcnhy 
 repealed from the time this Act shall take effect; and the 
 several Recorders' Courts of the cities of Toronto, Ilainiltun, 
 London, Kingston and Ottawa, as well as also the Courts of 
 Assize and Nisi Prius, Oyer and Terminer and General (Jaul 
 Delivery for the County of the City of Toronto, are fruni 
 theiicefurth abolished ; and the said cities shall thenceforth, 
 for judicial purposes, be refipectively united to and form part 
 of the several counties ia which they arc respectively situate. 
 
 II. In lieu of the said section three hundred and seventy- chu-h 
 three, it is hereby enacted, that every Police Magistrate shall ,'.'ii!ii.s V.. 
 f'x of/icio be a Justice of the Peace for the city or town for I'mIs'i's'.'' ' "" 
 which he holds office, as well as also for the county (*r lUiion 
 of counties in which such city or town is Kituate; and no ii,",^'iTtrat. ■. 
 other Justice of the Peace shall adjudicate upon, admit to liO',.s'',,f'ii'i'.' 
 bail, discharge prisoners or otherwise act, except at the Courts i"^" ' 
 of General Sessions of the Peace, in any case for any town or 
 city where there i.s a Police Magistrate, except in ea.<o of the 
 illness or absence, or at the request in writing, of the Police 
 Magistrate. 
 
 la. Section three hundred and eighty of the said Act is invrsiipi- 
 hcreby amended by substituting the words '-Judge of the t,y i;,.mit'v 
 -County Court" for the words " Recorder of tJie Citj," and ''"''"'"' 
 
 }- I 1 !■ i;. 
 
 ■ iff'' 
 
 .1 
 
 
 
 i' K'^ 
 
 liii 
 
f ' '' 
 
 mMAsk 
 
 . %hf 
 
 Til/ 
 
 5^ 
 
 TOB LAW REFORM ACT. 
 
 [SS. 13-1&. 
 
 pUceofBe- the words "Judge of the said County Court" for the irord 
 ■ "Recorder," wherever they respectively occur throughout 
 the said section. 
 
 No rate- 
 payer, etc., 
 incoiupetvnt 
 •3 a witmiss, 
 but liable to 
 •jhalleiige 
 •s a jurur, 
 ••tc;. 
 
 Indict- 
 ments, etc., 
 pending in 
 Recorders' 
 Courts to be 
 transferred 
 to General 
 •Sessions, 
 
 County 
 Court Jtidse 
 nubstitutt'd 
 for llui'iirdcr 
 111 boaixl of 
 l>oli('e. 
 
 All matters 
 heretofore 
 don(! by lle- 
 eorders, to 
 Ijc done by 
 
 13. In lieu of section three hundred and eighty-seven of 
 the said Act, it is hereby enacted, that in any prosecution, 
 suit, action, or proceeding in any civil matter to which a cor- 
 poration is a party, no ratepayer, member, officer, or servant 
 of the corporation shall, on account of his being such, be 
 incompetent as a witness; but they and every of them sbal! 
 be liable to challenge as a juror, except where the municipal 
 corporation, the party to such prosecution, suit, action or 
 proceeding, be a county. 
 
 14, From the time this Act shall take etfect all intlict- 
 meuts, suits, proceedings and matters then pending, or com- 
 menced in any of the said Recorders' Courts, and not tried 
 and finally determined, ended and completed, shall appertain 
 and be transferred to the several Courts of General Sessions 
 of the Peace of the respective counties in which the said 
 cities are respectively situate ; and the said Courts of General 
 Sessions of the Peace shall have full jurisdictior and cogni- 
 zance of all such indictments, proceedings and matters ; and 
 all such indictments, proceedings and matters shall be tried, 
 proceeded with, conducted, done, performed and completed 
 in and by the said last mentioned Courts, as if such indict- 
 ments, proceedings, and matters had originated in or been 
 pending therein. 
 
 1«5. In amendment of the three hundred and ninety-fourtli 
 section of the said last mentioned Act, respecting the Muni- 
 cipal Institutions of Upper Canada, it is hereby enacted, that 
 the board of police in every city shall consist of the Mayor, 
 the Judge of the County Court of the county in which the 
 city is situate and the Police Magistrate; and if there be no 
 Police Magistrate, the council of the city shall appoint a per- 
 son resident therein, to be a member of the board of police 
 of such city. 
 
 16. After this Act shall take effect, the several powers 
 duties, matters and things which theretofore appertained to 
 or were authorised, or required to be exercised, done or per- 
 
 ..-> " »- f -A , 
 
 r, ' '. ?-'■'' ds^ 
 
[ss. 13-lG. 
 
 irt" for the word 
 occur throughout 
 
 id eighty-seven of 
 1 any prosecution, 
 ter to which a cor- 
 officer, or servant 
 lis heing such, be 
 rery of them sball 
 lere the municipal 
 DU, suit, action or 
 
 ce etibct all indict- 
 1 pending, or com- 
 urts, and not tried 
 ted, shall appertain 
 )f General Sessions 
 in which the said 
 1 Courts of General 
 isdictior and cogni- 
 i and matters ; and 
 tters shall be tried, 
 ned and completed 
 1, as if such indict- 
 ginated in or been 
 
 :d and nincty-fcurtb 
 ipecting the Muni- 
 lereby enacted, tbat 
 nsist of the flayer, 
 iounty in which tbe 
 and if there be no 
 shall appoint a per- 
 the board of police 
 
 the several powers 
 fore appertained to 
 (rcised, done or per- 
 
 8. 17.] 
 
 THE LAW RErOBM AOT. 
 
 599 
 
 formed in or by the said Recorders' Courts respectively, are County 
 hereby transferred, and shall appertain to and be exercised, jullgeg. 
 done and performed by the Courts of General Sessions of the 
 Peace of the counties in which the taid cities are respectively 
 situate, and the several duties, powers, acts, matters and 
 things theretofore authorized, or required to be exercised, 
 done or performed by the said Recorders shall thenceforth be 
 exercised, done and performed by the Judges of the County 
 Courts of the said respective counties. 
 
 TRIALS AND ASSESSMENTS. 
 
 17* All issues of fact and assessments of damages in the ccrUin 
 Superior Courts of common law relating to debt, covenant superior 
 and contract, where the amount is liquidated or ascertained by bo tried in 
 the signature of the defendant, (a) may be iricd nnd assessed ^-Xrte 
 in the County Court of the county where the venue is laid, if 
 the plaintiff desire it, unless a Judge of such Superior Court 
 shall otherwise order, and upon such terms as he may deem 
 meet, in which case an entry shall be made in the issue and 
 subsequent proceedings in words, or to the effect of form A 
 in tbe schedule to this Act, in place of the venire facias; 
 and in the roll the postea shall be entered in words, or to the 
 effect of form B iu the said schedule, (h) 
 
 2. All issues of fact and assessments of damages in actions County 
 
 _, _, I'll 111 Court oasM 
 
 in any County Court, may be tried and assessed, at the elec- to i.e tried 
 tion of the plaintiff, at any sittings of Assize and Nisi Priiis conru. 
 for the county in which the venue is laid, without any order 
 Mji ♦bat purpose, in which case an entry shall be made in the 
 issue and subsequent ^/locecdings in words, or to the effect of 
 
 (a) " Where the amount is liquidated or ascei cained bi/ (he sig lature of the 
 defendant." The v/ords of the County Courts Act, Con. Stat. U, C. cap. 15, s. 17, 
 Bub-s. 2, are " where the amount is liquidated or ascertained by the act of tht 
 parlies." Bearing this distinction in mind, reference may be made to tlie follow- 
 in:: easoK McMur.ry v. Munro, 14 U. C. Q. B. 1G6; Wallbridge v. Brown, 18 U.C. 
 Q. B. IR";. Millir v. The Beaver Mutual Fire Insurance Go. 15 U G. C. P. 75; In 
 re Furnwal v. Sounder :i, 20 U. C. Q. B. 119, decided under the County Courts 
 Act. The signature of the defendant is necessarj' in all cases under tliis section: 
 ifarPha-fion et al v. MacPherson, Chambers, June, 1870. A note made in the 
 United States and payable in American currenc}' is not an amount "liquidated 
 or nscertained," within the meaning of the act: Cushman et al v. Reid, 5 Prac. R. 
 121; 8. c. 20 U.C. C. P. 147. 
 
 (ft) The entry is sufficient if made on the issue boolt in place of the venire 
 facias: Walkem v. Donovan, 5 Prac. R. 118; s. c. 5 U. C. L.J. N.S. 181. 
 
 ' k^ 
 
 m 
 
600 
 
 THE JiATf REFORM ACT. 
 
 [S. 17. 
 
 
 •"4 t 
 
 Notice of 
 trial, etc., in 
 such casua. 
 
 1*10 viso. 
 
 How record 
 madcu]iiiud 
 judgment 
 entered. 
 
 Protrlso. 
 
 Motion 
 Aj^aiuHt ver- 
 dict, etc., to 
 1)1) iu the 
 Superior 
 Court. 
 
 tbe form C in the said schedule, and in the roll the postea 
 shall be entered in Trords, or to the effect of form B in the 
 said schedule, (c) 
 
 3. In any of the said cases, the notice of trial or assess- 
 ment shall state that the cause will be tried, or the damages 
 assessed, at such sittings according to the fact; and in cases 
 in the Superior Courts, where the trial or assessment is 
 intended to be had in the County Court, the issue shall be 
 delivered, and the notice of trial or assessment served, ten 
 clear days before the sittings of such County Court: Pro- 
 vided always, that nothing herein contained shall prevent a 
 Judge of the Court in which the action is brought, or after 
 the record is entered for trial or assessment, the Jud^e before 
 whom the trial or assessment is intended to be had, from 
 entertaining applications to postpone such trials or assess- 
 ments, (d) 
 
 4. Subject to the provisions herein contained, the record 
 shall be made up, and entered and tried as in other cases; 
 and in any of the said cases, judgment may be entered on the 
 fifth day after verdict rendered or damages assessed, unless 
 the Judge who tried the cause shall certify, on the record 
 under his hand, that the case is one which, in his opinion, 
 should stand to abide the result of a motion that may be made 
 therein in term, or unless a Judge of one of the Superior 
 Courts shall otherwise order : Provided always, that in any 
 such case the Judge may certify for immediate execution. 
 
 5. Any motion to be made in respect to any nonsuit, ver- 
 dict or assessment of damages in any County Court cause 
 had, tried or assessed at any sittings of Assize and Nisi Prius 
 shall be made, heard and determined in the Superior Court 
 of law at Toronto, which the party moving or applying shall 
 
 M- 
 
 i .' 
 
 fc' 
 
 h 
 
 i^-' - 
 
 1':..,. . I . 
 
 iv.1 • 
 
 
 >Ht, , 
 
 / . . 
 
 
 
 
 
 ^'$- 
 
 i.,, -4 
 
 UP^t ' 
 
 ♦ \"'' 
 
 ff^l " 
 
 I' 
 
 n-f ■ 
 
 ^-^ i\ 
 
 fh^' ' 
 
 >,■-' ■*-;' 
 
 \ \ ' 
 
 ' ) ' ' ^ 
 
 iiV'' " 
 
 !■' ■ 
 
 *^y- 
 
 -■ IriLl 
 
 Mi 
 
 \:'^ jtafe 
 
 i?^'' 
 
 h'^-^K 
 
 
 vM 
 
 (c) Tlie words of this sub-section embrace partition suits: Symcnds v. Symonds 
 et al, 20 U. C. C. P. 271. 
 
 (d) This section enables a plaintiff, at any time after tlio act came into opera 
 l.ion, to take down to the County Court for trial tiie issues joined in any of the 
 specified cases of action where the amount is liquidated or ascertained by tiie 
 signature of the defendant, whether the issues were joined before or after tlie act 
 oame into effect ; iirovided only, that notice of trial should be served und the 
 issue bo delivered as prescribed by this sub-section: Cushman et al v. lieid, ?.0 U. 
 C. C. P. 147. 
 
8. 18.] 
 
 THE LAW REFORM ACT. 
 
 601 
 
 lends V. Symonds 
 
 Rooks for 
 
 liiilcs of 
 tiial, etc. 
 
 rprtmeii 
 
 ccipy of 
 iwilfs of 
 cases. 
 
 elect, and according to the practice of that Court; and any 
 rale or order made in such cause by such Court shall bo valid 
 and binding, (c) 
 
 6. The Clerks of the several County Courts shall provide 
 books in which the Judges sitting in the Courts of Assize and 
 Msi Prills, where cases brought in any County Court shall 
 be tried or assessed under this Act, may enter their notes of 
 such trials and assessments ; which books, immediately after 
 such trials or assessments, shall be returned to and remain in, 
 the offices of such Clerks. 
 
 7. On the application of any of the parties, the County 
 Court Clerks shall, at the cost of such party, forward to the 
 Clerk of the Crown and Pleas at Toronto of such of the Supe- 
 rior Courts as such party shall designate, a certified copy of 
 the Judge's notes of the trial or assessment of any such cases, 
 together with the record and exhibits, to enable such Supe- 
 rior Court properly to dispose of any application made, or to 
 be made in or respecting such cases. 
 
 8. The costs on all such proceedings in the said several 
 Courts, shall be the usual costs of such cases in the Court in 
 which the action is brought. 
 
 18. In amendment of the second section of chapter thirty- Sip, 2,char. 
 one of the Consolidated Statutes of Upper Canada, entitled W.d. u. c. 
 An Act rcqyecting Jurors and Juries, it is enacted : — 
 
 1. That all issues of fact in any civil action when brought r^^iustobe 
 in cither of the Superior Courts of common law, or in any of .iuVi.i^'eM aa- 
 the County Courts in Ontario, and every assessment or judire alone, 
 enquiry of damages in every such action, may, and in the' 
 absence of such notice as in the next sub-section mentioned, 
 shall be heard, tried and assessed by a Judge of the said 
 Courts without the intervention of a Jury: Provided that if 
 any one or more of the parties requires such issue to be tried 
 or damages to be assessed or enquired of, by a Jury, he shall 
 give notice to the Court in which such action is pending, 
 
 (<^) The words in italics were not in the net na orijjjinally passed, but lirtvc been 
 since added by aniendment : see Stat. iJ;^ Vic. ca|). 7, 8. B, The decision under 
 this section is final: Stat, 33 Vic, cap. 7, s. 5. 
 
 Costs in 
 sucli cases. 
 
 Proviso. 
 
 " t 
 
 i J 
 
602 
 
 THE LAW BBVOBM ACT. 
 
 [8. 18. 
 
 
 ♦ Is 
 
 1 
 
 I 
 
 'A 
 
 Venlict of 
 Judge to 
 havu liko 
 effect ;i8 ver- 
 dict uf jury. 
 
 Proviso. 
 
 Gflfect of no. 
 tice requir- 
 ing a jury. 
 
 Proviso. 
 
 Proviso as 
 to Judt^o 
 dircntiiiR 
 trial V)j jury 
 
 and to the opposite party, by filing with his last pleading and 
 serving on the opposite party, a notice in writing to tlic effect 
 following, that is to say : " The Plaintiff (^or one or more of 
 them) {or the Defendant or one or more of them, as the case 
 may &e,) requires that the issues in this cause be tried, {or 
 the damages assessed) by a Jury;" and a copy of such notice 
 Bhall bo attached to the record. (/) 
 
 2. That the verdict or finding of the Judge by whom any 
 such issues shall be tried or damages assessed, shall have the 
 like effect, as the verdict or finding of a jury, and the like 
 fees and charges shall be payable in respect of the same : 
 Provided that the parties shall be entitled to move ajrainst 
 such verdict or finding by, motion for non-suit, new trial or 
 otherwise, within the same time, and on the same grounds 
 (including objections against the sufficiency or the erroneous 
 view taken of the evidence) as allowed in cases of trial or 
 assessment by a jury, {cj) 
 
 3. That whenever any one one or more of the parties to 
 any such action shall have given such notice, requiring a jury 
 as hereinbefore provided, the cause shall be carried down to 
 trial in the same manner and with the like effect as if this 
 section had not been passed : Provided always, that it shall 
 be competent for the parties present at the trial to consent 
 that the said notice shall be waived, and the case tried or 
 damages assessed, by the Judge, and to endorse a nieaioran- 
 dura of such consent upon the record, and thereupon the said 
 Judge shall proceed to the trial of the issues or assessment of 
 the damages without the intervention of a jury : Provided 
 qlways, that it shall be competent for the Judge in his dis- 
 
 
 (/) Action on a promissory note ; special plea on equitable grounds ; issue 
 taken thereon by plaintiff. Joinder of issue by defendant, with notice for a jury. 
 Held regular: Quebec Bank v. Gray, 6 Prac. K. 81. Where a joinder of issues 
 had been filed before tlio Law Reform Act, leave was given to plaintiff to with- 
 draw his replication joining issue, and to file a similar replication with a notice 
 requiring a jury: Synffe v. Aldwetl, 6 Prac. R. 94. The act applies to ejectment: 
 Humphrey a tt al v. Hunter, C. P. E. T. 1870. 
 
 (g) Judges of County Courts may try causes brought down from superior 
 courts without the intervention of a jury : Cushman et al^x*_R£iti^ Prac. R. l!il. 
 A judge's decision on facts is to be regardeS^flbrently from the finiling of a 
 jury: Smith v. Hamilton, 29 U. C. Q. B. 394. The court afterwards, on motion, 
 may pronounce the verdict which in their judgment the judge who tried the 
 cause ought to have pronouuced : Stat. Out. 33 Yic. cap. 7, b. 6. 
 
88. 19-22.] 
 
 THE LAW RSFORM ACT. 
 
 BvW 
 
 Cl.iusfs of 
 ctiap. ;)1, 
 Clin. HUit. 
 V. C, n- 
 pealeU. 
 
 29 Vic. ch»i>- 
 54, see. fil. 
 aniendvd. 
 
 crctiou to direct, tbat notwithstanding anything hereinbefoTO 
 contained, any such action shall be tried or the damages 
 assessed by a jury. 
 
 10. Sections ten, one hundred and thirty-two, one hun- 
 dred and thirty-three, one hundred and thirty-four, one hun- 
 dred and thirty-five, one hundred and thirty-six and one 
 hundred and thirty-seven of the said Act, entitled An Act 
 respect inff Jurors and Juries, are hereby repealed, 
 
 20, Section fifty-one of the said Act as amended by the 
 Act passed in the twenty-sixth year of Her Majesty's reign, 
 chapter forty-four, entitled " An Act to amend the Consoli- 
 dated Act of Upper Canada intituled An Act respecting 
 Jurors and Juries," is hereby further amended by inserting 
 next after the words " Deputy Sheriff of the county " in the 
 fifth section of the said last mentioned Act, the words " and 
 the Junior Judge of the County Court, and the Mayor of 
 any city situate in sucn county." 
 
 21, The words "The Governor" in section fifty-eight of 
 the said Act, shall be held to mean "The Lieutenaut-Gover- 
 nor of this Province, and the words "The Official Gazelle of 
 the Province" and "The Gazette" in the said section, shall 
 be held to mean " The Ontario Gazette." 
 
 CITY OP TORONTO RE-UNITED TO THE COUNTY OF YORK. 
 
 92. Sections one, two, three, four, five, six, seven, eight, {^j^.'^i^^'VyT' 
 nine, ten, eleven, twelve, thirteen, fourteen and fifteen, of the yj^' . ^^'^^v 
 Act of the Parliament of the late Province of Canada, passed 
 in the twenty-fourth year of Her Majesty's reign, chapter 
 fifty-three, entitled " An Act to provide for the separation of 
 the City of Toronto from the United Counties of York and 
 Peel for certain jut'cial purposes," and also the Act passed and of 26 
 in the twenty-fifth year of Her Majesty's reign, chapter 24,roi.eXi. 
 twenty-four, entitled " An Act to explain the Act to proviJo 
 for the separation of the City of Toronto from the United 
 Counties of York and Peel," are hereby repealed from the 
 time this Act shall take effect; and the City of Toronto shall 
 thenceforth, for judicial purposes, be re-united to and be part 
 of, the County of York. 
 
 Intnrprcta- 
 tiuu of oer- 
 taiu woiiU. 
 
 
 i' 4f 
 
 if 
 
604 
 
 THE LAW REFORM AGT. 
 
 [88. 23-26, 
 
 I '191 1' 
 
 
 CI 
 
 ir 
 
 
 
 % 
 
 
 ,.-.11. ,..*;.' 
 
 Condition of 2. All reoogtiizances conditioned that any person, Mrhether 
 'npiiMiuos. as witness, prosecotor, defendant or otherwise, shall appear at 
 any Recorder's Court of any city, to be held next after the 
 time this Act shall take effect, shall be obligatory to compel 
 the appearance of such party at the Court of General Sessions 
 of the Peace of the county in which the city is situate, to be 
 held next after this Act shall take effect, and the conditions 
 of all such recognizances shall be construed as if so expressed; 
 and all recognizances conditioned that any person, whether as 
 witness, prosecutor, defendant or otherwise, shall appear at 
 any sitting of the Court of Oyer and Terminer and General 
 Gaol Delivery for the County of the City of Toronto, to be 
 held next after this Act shall take effect, shall be obligatory 
 to compel the appearance of such party at the sitting of the 
 Courts of Oyer and Terminer and General Gaol Delivery for 
 the County of York, which shall be held next after the pass- 
 ing of this Act, and the condition of all such recognizances 
 shall be construed as if so expressed. 
 
 Former pro- 23. Nothing herein contained shall render invalid any 
 t^\fe1ij!"°* indictment, information, action or proceedings heretofore pro- 
 ^'''"'' socuted, had, taken or pending in any sitting of the Courts of 
 
 Assize and Nisi Prius, Oyer and Terminer or General Gaol 
 Delivery for the County of the City of Toronto ; but all such 
 indictments, informations, actions and proceedings shall be 
 transferred to, and may be continued, prosecuted and pro- 
 ceeded with, in the Courts of Assize and A7st I'7'ius, Ojcr 
 and Terminer and General Gaol Delivery for the County of 
 York. 
 
 Kxistiiis 
 Kiiol lUTiiiige- 
 iiient!* not 
 atTeoted. 
 
 Jnooiisistont 
 
 Huaeliiu'iitsi 
 
 riipealud. 
 
 Conunence- 
 ment. 
 
 SSA, Nothing in this Act contained shall alter or affect the 
 existing arrangements between the City of Toronto and the 
 County of York respecting the use of the gaol. 
 
 25, All enactments inconsistent with any of the provi- 
 sions of this Act are hereby rspealed, but no Act previously 
 repealed shall be thereby revived. 
 
 36. This Act shall take affect from and after the first day 
 of February next. 
 
I-ORMS.] 
 
 THE LAW BErOBM ACT. 
 
 FORM A. 
 
 60f> 
 
 And the plaintiff, in order to expedite proceedings in this case, having elected 
 to try the issues {or assess the damages or as well to try the issues as to assess 
 the damages, at the case nay be) at the sittings of the County Court of the County 
 of to be held at in tlie said County on the day of 
 
 18 , the said issues will bo tried (or the said damages will be assessed, or both, 
 as the case may be) at the said sittings accordingly. 
 
 FORM B. 
 
 And the Jury (or Judge) at the said County Conrt found that {stating the find- 
 ing on the issues, or) and the Jury (or Judge) at the said County Court assessed 
 the damages of the plaintiff at over and above his costs ; therefore it ii= 
 
 considered &c. {as the case requires.) 
 
 FORM C. 
 
 And the plaintiff, in order to expedite proceedings in this case, having elected 
 to try the issues {or assess the danmges, or both, as the case mag be) at the sittings 
 of Assize and Nisi Prius to be holden at in and for the County of 
 
 on the day of ,18 , the said issues will bo tried {or the said dam- 
 
 ages will be assessed, or both, at the case mag be) at the said sittings accordingly. 
 
 FORM D. 
 
 And the Jury {or Judge) at the said sittings of Assize and Nisi Prius found 
 that {stating the finding on the issues or) and the Jury {or Judge) at the said sit- 
 tings of Assize and Nisi Prius assessed the damages of the plaintiff at over 
 and above his costs; therefore, «fec. {as the ease requires.) 
 
THE LAW REFORM AMENDMExNT ACTS. 
 
 33 V) jTOBIa, Cap. VII. 
 
 ^k 
 
 
 .LM1..J1 
 
 Powers of 
 Judge of 
 Assize aa to 
 County 
 •Jourt i^nnsissi 
 trieii bol'ore 
 him. 
 
 TfVlien such 
 judge marks 
 record as a 
 remanet, 
 &c., it may 
 ]>e tried at 
 vubsequent 
 sitting or 
 .iHi^izn. 
 
 Entry of 
 remanet on 
 the record. 
 
 An, Act to rtuilce furtlvcr provisions for carrying 
 out the Act intituled "The Law Jicfortn Act 
 of ISGS," and to re^idcde proceedings on Writs 
 of Error and Certiorari. 
 
 [Assented to lith Beconhtr, 1869.] 
 
 Her Majesty, by and with the advice and consent of the 
 Legislative Assembly of the Province of Ontario, enacts as 
 follows : — 
 
 1. In any action in the County Court entered for trial at 
 any sittings of assize and nisi prius, under the said Act passed 
 in the thirty-second year of Her Majesty's Reign, intituled 
 The Law Reform Act of 1868, the Judge presiding at the 
 sittings shall have the same powers as to amendment of the 
 record, adding and amending pleadings, putting off the trial, 
 reference to arbitration, and making the cause a remanet, and 
 otherwise dealing with the cause and proceedings therein, as 
 if the action had been commjnced in a Superior Court of 
 Common Law. 
 
 S5. Whenever the said Judge endorses on the record in any 
 such action the word " remanet," and adds any words to the 
 effect following: "And the within cause may be entered and 
 tried at any County Court or Assizes," such cause may be 
 entered at any subsequent sittings of the County Court, or of 
 Assize and nisi prim, without any further entry or suggestion 
 whatever relative thereto, and may be tried and disposed of in 
 the same way as any other case entered at such sittings. 
 
 3- In the cases named in the next prior section, an entry 
 shall be made on the record next after the suggestion in the 
 form C. of the said Act, as follows: "And at the said sittings 
 the presiding Judge endorsed, or caused to be endorsed on the 
 record that this cause was a remanet, and might be entered 
 aad tried at any County Court or Assize ;" and the po$tea 
 
gS. 4-7.] THE LAW KEFOBM AMENDMENT ACTS. 
 
 607 
 
 shall then bo adapted to the finding of the issues, aa they may 
 be tried and determined before a Judge or a jury in the 
 County Court, or at the sittings of Assize and nisi print. 
 
 4. Whenever any such cause is referred to arbitration by powrrs of 
 the presiding Judge at such sittings, the County Court in omrtasto 
 which the action is brought, and the Judge thereof, shall wTu'u Judge 
 have the same power to enforce the award, and make orders yefcrT t!f 
 and rules relating thereto, and to setting aside of the award, •"'^''ration, 
 as if the order referring the case to arbitration had been made 
 
 by the County Judge> 
 
 5. The decision of the Superior Court of Law, at Toronto, Decision 
 on any motion made under sub-section five of section seven- 6, a. 17, to ' 
 teen, of the said statute, as amended by section eight of this 
 
 Act, shall be final, and shall not be subject to appeal to the 
 Court of Error and Appeal, or to any writ of error to that or 
 any other Court. 
 
 O- Whenever the verdict or finding of the Judge is moved Ser. is, 
 against under sub-section two, of section eighteen of the said amended ■ 
 statute, it shall not be obligatory on the Court before which ,)i?iiioti^ 
 such motion is made to grant a new trial when the objections 
 taken are against the sufficiency of the evidence, or the erro- 
 neous view taken thereof by the Judge, or on a mistaken 
 view of the law of the case; but the Court may pronounce 
 the verdict which, in their judgment, the Judge who tried the 
 cause ought to have pronounced, and amend the postea, and 
 enter the verdict accordingly, subject nevertheless to appeal 
 on the same grounds as if the decision of the Court had been 
 to grant a new trial, instead of ordering the postea to be 
 amended. 
 
 7. There shall be sittings of the several County Courts of County 
 this Province (except for the County of York), on the first tin"s with- 
 Monday in the months of April and October in each year, i*n Apru"^ 
 whereat all issues of fact in any civil action brought in the *^*=*"^'* 
 Court wherein the sittings shall be, and every assessment and 
 enquiry of damages in any such action may be heard, tried 
 and assessed by the Judge of such Court without the inter- 
 veatlon of a jury ia those oases where do jury is required f 
 
 ngainst 
 
 VlTlliot, &c, 
 
 may give a 
 verdict 
 
 H 
 
608 
 
 THE LAW REFORM AMENDMENT ACTS. [gg. 8-10. 
 
 i 
 
 i 
 
 t 
 
 1 
 
 
 i 
 
 f 
 
 ^ 
 
 J 
 
 i 
 
 
 || 
 
 t' 
 
 F 
 
 m 
 
 and on any such finding, assessment or enquiry, the poiUa 
 shall be to meet the facts. 
 
 8. Sub-section five, of section seventeen, of the said Act 
 is hereby amended by inserting the word "non-suit" after 
 the word "any" in the first line, and inserting the words 
 ''cause, had" after the word "court" in the second Hue. 
 
 onremovni O. In any case removed from the County Court to either 
 
 i)ro(ret;<iiii(,'ii of the Superior Courts of Common Law by a writ of Cer- 
 
 simii not tiorari, it shall not be necessary to declare de novo, but the 
 
 novo! * case shall proceed on the record as it stands when removed 
 
 into the Superior Court, and all subsequent proceedings may 
 
 be had and taken in the cause in the same way as if it had 
 
 been originally commenced and prosecuted in such Superior 
 
 Court, (/t) 
 
 10. Whenever it shall appear in any action otherwise of 
 the proper competency of the County Court that such Court 
 has not cognizance thereof from the title to land being brought 
 in question, or from the validity of any devise, bequest, or 
 limitation under any will or settlement being disputed, it shall 
 be lawful for any Judge of either of ^the Superior Courts of 
 Common Law or the Judge of the County Court before whom 
 such cause is pending, to order a writ of Certiorari to issue 
 out of one of the Superior Courts of Commou Law to remove 
 such cause into such court : and the Judge making suoh 
 order may in his discretion make and impose such terms on 
 the party applying for such Certiorari as to costs and other- 
 wise as the Judge may make under section eleven of this 
 Act; (t) Provided always when such writ shall be issued on 
 the order of a Judge of a County Court, a Judge of either of 
 the Superior Courts of Common Law sitting in Chambers at 
 Toronto, may rescind such order, or vary the terms thereof or 
 
 When 
 County 
 Court juris- 
 diction 
 ouHted, tlio 
 caso may l>o 
 ronioved by 
 Certiorari. 
 
 Imposition 
 nf terms on 
 granting 
 Certiorari. 
 
 Superior 
 Court Judge 
 may review 
 order for 
 Certiorari 
 of Co. Court 
 Jud ge. 
 
 i 1 
 
 (h) Before this act it was decided that after a cause had been removed by 
 certiorari it was necessary to begin de novo : see Fulton v. The Grand Trunk 
 Railway Co. 17 U.C. Q.B. 428 ; Uankey v. The Grand Trunk Railway Co. lb. 472; 
 Patterson v. Smith, 14 U. C. C. P. 526. 
 
 (»■) So it was decided that where the jurisdiction of a County Court was ousted 
 by title to lands coming in question, there could be no certiorari : O'Brien v. Wehh 
 et al, 28 U. C. Q. B. 394. 
 
Sfl. 11-13] THE LAW REFORM AMENDMENT ACTS. 
 
 609 
 
 III lit iinlcM 
 
 r..| oV(|-:J100, 
 mill mily ou 
 Icavu. 
 
 imposed thereby ; and tho cause when removed into the 
 Superior Court shall be proceeded with in the said court io 
 tho manner pointed out in section nine of this Act. 
 
 11. No writ of error from either of tho Superior Courts Kmirnoti* 
 of Common Law shall bo issued upon any judgment entered, t ..mt .juig 
 or in any suit instituted in any County Court of the Province 
 of Ontario, unless the debt or damages recovered or claimed 
 amount to upwards of one hundred dollars, and then only on 
 jffidavit and by leave of a judge of one of tho said Superior 
 
 Courts in cases in which the said Judge shall think it proper 
 to issue the said writ, and upon such terms as to payment of 
 costs, giving security for debt or costs, or such other terms as 
 he shall think fit. 
 
 12. The law and practice as to writs of error, and the pro- prixi-odinRi 
 ccediugs thereon, shall hereafter be the same as the law and IrnV'ti)'" 
 practice now in force in England in respect to writs of error K|"jil"h *" 
 from the Superior Courts of Common Law to Inferior Courts ; i"'"''"^". 
 Provided always that the Judges of the Superior Courts of i.ov.cr to 
 Common Law in this Province may from time to time alter or a" to!'"** 
 amend the same by rules of Court to be made and signed by 
 
 any four of the said Judges, whereof one shall bo a Chief 
 Justice, (y) 
 
 13. The fifth section of the said Act is hereby repealed, i-mii. ch.e, 
 and it is hereby enacted that under the sixty-seventh and " ''"^'^ 
 sixty-eighth sections of chapter fifteen of the Consolidated 
 Statutes of Upper Canada, parties suing or being sued in the 
 
 name of others, though not named on the Record, and parties 
 for whose benefit any suit is prosecuted or defended, and par- 
 ties suing or defending in the name of others, though not 
 mentioned on the Record as parties so named, shall, and may rr^i.tiocon 
 be considered and construed as " a party wishing to appeal " Cu. court. 
 under the said sections of the Consolidated Statute above 
 referred to, and may give, or cause to be given, to the opposite 
 party, the security referred to in the said sixty-eighth section 
 of the statute, by a bond executed by two persons, whether 
 
 (j ) This section is not retrospective so as to affect a writ of error in respect ol 
 costs issued before its passing: Fo^e v, Rcilly, 29 U. C. Q. B. 495. 
 
 39 
 
 •i'i 
 
 r 
 
 
 
 
 mmmm 
 
610 
 
 THE LAW REFORM AMENDMENT ACTS. 
 
 [8. 13. 
 
 t I 
 
 "■ J'il' 
 
 named as sureties or as parties interested, or otherwise, in such 
 sum as the Judge of the Court appealed from dircctM ; condi- 
 tioned that the plaintiff or defendant in whose name the appeal 
 is made, shall abide by the decision of the cause by the Court 
 to be appealed to, and to pay all sums of money and costs as 
 well of the suit as of the appeal awarded and taxed to the 
 opposite party; in which bond the parties executing the same, 
 shall justify to the amount of the penalty of the bond by 
 affidavit annexed thereto in like manner as bail arc required 
 to justify; and if such bond or affidavit of justification, duly 
 proved as the bond required under the said section of the 
 statute, are produced to the Judge of the Court appealed from, 
 to remain with the Clerk of the Court until the opinion of the 
 Court appealed to has been given, and then to be delivered to 
 the successful party, then, at the request of the person or 
 persons on whose behalf the appeal is made, the Judge of the 
 Court appealed from shall certify under his hand to either of 
 the Superior Courts of Common Law, na;iied by or on behalf 
 of such appellant, the pleadings and other papers in the cause 
 in the manner pointed out by the said sixty-eighth section of 
 the said statute, and the cause shall then be treated and dis- 
 posed of as appeals are directed to be disposed of under the 
 said section : and the time which the Judge may stay procpcd- 
 ings, at the request of cither party, under the sixty-seventh 
 section of the said statute, to enable the appellant to perfect 
 the necessary bond to appeal, is hereby extended to ten days 
 instead of four, as mentioned in the statute, (k) 
 
 (k) The Con. Stat. U. C. cap. 15, s. 68, provided that in " case the party wishing 
 80 to appeal gives security to the opposite party by a bond executed by himself 
 and two sureties, &c." Much difficulty had arisen on the construction of tiicse 
 words. They were originally construed as applicable only to the actual parties 
 to the record, and as excluding persons beneficially interested. It was then jiro- 
 vided by the 27 Vic. cap. 14. s. 2, that the words "party wishing to appeal" 
 should bo taken to mean, " as well parties sueing in the names of others though not 
 named on the record, as parties so named." Tliis was held to apply to beneficial 
 plaintiffs only, and to exclude beneficial defendants : Barling v. Sherwood, 2 U. C. 
 L. J. N.S, 130 ; see further In re Tozer qui tarn. v. Pretton, 23 U. C. Q. B. 310 ; Pent- 
 land v. Heath, 24 U.C. Q.B. 464. The sixty-eighui section was again nmencled by 
 the Stat. 32 Vic. cap. 6, s. B, which provided that the words " party wishing to ap 
 peal " should be held to mean " as well parties on whose behalf or for whose benefit 
 any suit is prosecuted or defended, and parties suing or defending in the name of 
 others, though not named on the record as parties so named." But a question was 
 raised as to the sufficiency of these words to extend the meaning of the words of 
 
14.] 
 
 THE LAW REFORM AMENDMENT ACTS. 
 
 Cll 
 
 14. The junior Judge of the County Court of the County Jnnior 
 of York is hereby authorized to transact such business in '< 'mrt in 
 Chambers, in the absence therefrom of the County Judjro, ns si'/'in clwm- 
 relates to matters over which the said Court has jurisdiction, ""*" 
 and as may according to the course and practice thereof, bo 
 transacted by the Judge of tho said Court. 
 
 section sixty-eight to all bonefioial partloa; see Ptnton v. The Grand Trunk Rail- 
 way Co. 28 U. C. Q. B. 3t57 ; and though no decision was given, the li'j,'isInturo havo 
 by the clause hero enacted endeavoured to make plain their apparently original 
 intention by declaring in express terms that parties suing or being Hiied in the 
 name of others, though not named on the record, and parties for whoso benefit 
 any suit is prosecuted or defendo<l, and parties suing or defending in the name of 
 others, though not mentioned on the record as parties so named, shall he construed 
 as "a party wishing to appeal." Mr. Justice Wilson, in McLellin v. McCltUan, 
 2 U C. L. J. N.8. 297, notwithstanding decisions apparently to the contrary, (see 
 Pcntland v. Ihalh, 24 U. C. Q. B. 4fi4, and Darling v. Shtrtoood. 2 IJ.C, L. J. N.S. 
 130, the latter of which was not cited in the argument,) refused to go behind the 
 judge's certificate certifying the proceedings, for the purpose of entortniiiing an 
 objection to the sufficiency of the appeal bond on a motion to strike out the 
 apptifd, and this ruling was afterwards sustained by the court of Queen's Bench 
 in Pcnton v. The Grand Trunk Railway Co. 28 U. C. Q. B. 3G7. 
 
 
33 Victoria, Cap. 8. 
 
 rreambic. 
 
 Ji Vio. ch.6, 
 %. 9, SHb-s. 2, 
 amuudtMl. 
 
 ■I 
 
 «2 Vio. cli. 6, 
 ■. 9, .sub-8. 3, 
 ioi>caled. 
 
 Comity an- 
 eoiints how 
 auid wlien 
 andited. 
 
 An Act to amend sub-sections two and three of 
 section nine of the Act passed in the thirty- 
 second year of Her Majesty Queen Victoria, 
 chaptered six, entitled " Tlie Lav Reform Act 
 of 1868," and to repeal section two of chapter 
 one hundred and twenty-one of the Consoli- 
 dated Statutes for Upper Canada. 
 
 [Assented to 2ith December, 1869.] 
 
 Wherec.' It is desirable to amend sub-sections two and three 
 of section nine of the Act passed in the thirty-second year of 
 Her Majesty Queen Victoria, chaptered six, entitled "The 
 Law Reform Act of 1868," and to repeal section two of 
 chapter one hundred and twenty-one of the Consolidated 
 Statutes for Upper Canada entitled " An Act respecting the 
 expenditure of County Funds for certain purposes within 
 Upper Canada :" Therefore Her Majesty, by and with the 
 advice and consent of the Legislative Assembly of the Pro- 
 vince of Ontario, enacts as follows : 
 
 1. That from and after the passing of this Act the word 
 " Magistrates," in the eighth line of sub-section two of sec- 
 tion nine of the first recited Act shall be struck out, and the 
 words " Board of Audit hereinafter mentioned" substituted 
 instead thereof." 
 
 3. That sub-section three of section nine of the first recited 
 Act shall be repealed from and after the passing of this Act, 
 and the following substituted in lieu thereof : 
 
 " Such of the said accounts and demands as shall be deli- 
 vered on the first day of the sittings of the said Courts of 
 General Sessions of the Peace, or of Oyer and Terminer and 
 General Gaol Delivery, shall be audited by a Board of Audit, 
 composed of the Chairman of the Court of General Sessions 
 of the Peace, and two other persons, who shall be appointed 
 annually for that purpose by the County Council of such 
 county or union of counties at their first meeting in each 
 
lie first recited 
 
 ig of this Act, 
 
 8S. 3, 4.] THE LAW REFORM AMENDMENT ACTS. 
 
 613 
 
 year, not more than one of such persons, being a member, for 
 the time being ot such County Council ; and such accounts 
 and demands shall be taken into consideration in the week 
 nes^ succeeding the week in which such sittings ended, and 
 disj/udcd of as soon as practicable." 
 
 3. That it shall and may be lawful for the County Council ^ivatoaniu 
 of any county or union of counties to pay the persons 
 appointed by them to serve on the Board of Audit consti- 
 tuted by this Act, any sum sot exceeding two dollars each 
 for their attendance at such audit. 
 
 4- That from and after the passing of this Act section two con. statu, 
 of chapter one hundred and twenty-one of the Consolidated I'r'erea^td' 
 Statutes of Upper Canada (now Ontario), entitled " An Act 
 respecting the expenditure of County Funds for certain pur- 
 poses in Upper Canada" be and the same is hereby repealed. 
 
 Act the word 
 n two of sec- 
 : out, and the 
 1" substituted 
 
 1 shall be deli- 
 said Courts of 
 Terminer and 
 loard of Audit, 
 meral Sessions 
 1 be appointed 
 )uncil of such 
 eeting in each 
 
 
REGULiE GENERALES. («) 
 
 
 1 *l « *' 
 
 REGUL^ GENERALES AS TO ATTORNEYS. (6) 
 1. (c) It is ordered that every person applying to be admitted a 
 member of either of the said Courts, shall leave or cause to be left 
 with the Clerk of the Crown and Pleas, at least seven days before he 
 shall apply to such Court for admission, his articles of clerkship, and 
 also any assignment that may have been made thereof, (tZ) together 
 
 (a) Thesfi rules were framed under section 313, C. L. P, Act, 1856 (section 333 
 of present C. L. P, Act), the notes to which fully explain the powers conferred 
 upon the judges. The rules are of two classes: the one relating to practice, the 
 other to pleading. The former came into operation when first made; but the 
 latter took effect only when laid before the legislature. Preceding the new rules, 
 two old rules with regard to the admission, Ac, of attorneys are given. 
 
 (6) An attorney is an authorized agent who conducts the litigation of parties 
 in the courts, and is treated in many respects as a quasi officer of the courts. He 
 is often dealt with summarily. He has some privileges now, but not so many as 
 formerly, and is subject to certain disabilities. His admission to practice is now 
 regulated by Con. Stat. U, C. cap. 35, as amended by Stats, of the late Province 
 of Canada 23 Vic. cap. 48 ; 28 Vic. cap. 21, and Stat. Ont. 32 Vic. cap. 19. It has 
 been decided in England that an attorney cannot practise in an inferior court 
 unless admitted to practice in a superior court: Evans v. P an attorney, 2 Wils. 
 382. This is the reason why the superior courts will proceed against an aUor- 
 ney for malpractice in an inferior court or elsewhere: lb ; sec also CarrutAers 
 r. , <fec. Tay. Rep. 243. 
 
 (c) This rule is the same as our old rule 51 of H. T. 1850. 
 
 (d) It is now provided by Con. Stat. U. C. cap. 35, s. 3, sub-s. 4, as ani^nded 
 by Stat. 28 Vic. cap. 21, s. 5, that no person shall be admitted and enrollct' ns 
 an attorney or solicitor unless " at least fourteen days next before the first day 
 of the term in which he seeks admission, he has left with the secretary of the 
 Law Society his contract of service, and any assignment tliereof, &c." So far 
 as the rule under consideration ia inconsistent with the statute, it is doubtless 
 si'Tseded: see fn re MacOachen, 20 U. C. Q. B. 321. It is, it will be per- 
 ceived, inconsistent not only as to the time within which the contract of service 
 mast l)e deposited, but as to the person witli whom the deposit should bo made. 
 The time is now at least fourteen days next before the first day of tlie term in 
 which application is to bo made, and not seven days as under the rule. The 
 person is the secretary of the law society of this Province, and not tlie clerk of 
 the crown and pleas. It may be held under the statute that where, owing to 
 peculiar circumstances, such as loss of articles, &c., a strict compliance with 
 its provisions ia iuipoasible, a ey pret compliance will be sufficient. Such was 
 
R. 1.] 
 
 REGULiG GENERALE8 AS TO ATTORNEYS. 
 
 615 
 
 with answers to the several questions hereunto annexed, signed by the 
 applicant, and also by the attorney or attorneys with whom he shall 
 have served his clerkship, (c) 
 
 the practice in England and in this Province under rules hitherto in force and 
 corresponding with the statute Such also is the practice to a great extent 
 under existing rules of the Law Society : see In re Loring. M. T. 2 Vic. MS 11. & 
 H. Dig. " Attorney," i. 3 ; Ex parte Radenhunt, Tay. Rep. 138 ; Ex parte Herbert, 
 2Do\vl. P. C. 172; Ex parte Ilulme, 4 Dowl. P. C. 88; Ex parte Blunt, 5 Dowl. 
 P. G. 231; Ex parte Cooper, lb 703; Ex parte Lyons, 6 Dowl. P. C. 517; Ex 
 parte Horner, 5 Jur. 463 ; Ex parte Jackson, 6 Jur. 35 ; Ex parte Outeris, 7 Jur. 
 1039; Ex parte Estcourt, 8 Jur. 985; Ex parte Udall, lb. 1007; Ex parte Chand- 
 kr, 1 Dowl. N.S. 814; Ex parte Cunliffe, 3 D. <t L. 348; Ex parte Young, 13 Q. 
 B. 662: Ex parte Makinson, 18 C. B. 661; Ex parte Bushe, 4 Ir. C. L. B. 434. 
 It is expressly declared that the society may, under certa.n circumstances, ilis- 
 peiise with the production of the contract, «fec. : Con. Stat. U. C. cap. 35, a. 5, as 
 amended by 28 Vic. cap. 21, s 6. Every person duly admitted, sworn, and 
 enrolled an attorney or solicitor of either of the Courts of Queen's Bench, Common 
 I'lt'iis or Chancery, is entitled, upon tiie production of a certificate of his admis- 
 sion to either one of the said courts, and that the same still continues in force, 
 nnd upon signing the roll of the other court, to be admitted as an attorney or 
 aolicitor in any other of tlie s;iid courts : Con. Stat. U. C. cap. 35, s. 20. In 
 England it has been held under Stat. 6 «fe 7 Vic. cap, 73, s. 16, tliat a person 
 admitted as a solicitor of the court of Chancery, upon service with a solicitor, 
 who had not been admitted an attorney of a court of law, might be admitted an 
 attorney of a court of law: In re Lucas, 2 Jur. N.S. 65. 
 
 (e) The Con. Stat, U. C. cap. 85, s. 7, does not make necessary the filing of 
 answers to questions such as those above mentioned. The Law Society is, how- 
 over, empowered to make such rules as they consider necessary for conducting the 
 examination of persons applying to be admitted as attorneys or solicitors, as well 
 loucliing the articles and service, and the several certificates hereinbefore men • 
 lidiied, as the fitness and capacity of such persons to act both as attorneys and 
 solicitors: lb s. 8. The judges of the courts of Queen's Bench, Common Pleas and 
 Ciiiincery are also empowered to make rules and regulations : lb. s. 25. Under the 
 authority of these sections a regulation has been made requiring a given number 
 of questions to be answered both by the applicant and the attorney or solicitor 
 witli wh6m he served his time. In England it has been held that an attorney 
 refusing to answer questions of this nature may be called upon by rule to show 
 cause why he should not do so: Ex parte Lewis, 7 Jur. 442; and be made to pay 
 Uie costs of the application: Ex paite Holland, 5 Dowl. P. C. 681. It has also 
 been held under the old rules that the answers may not only be received a day 
 Inter than that fixed for the receipt of them (see cases in preceding note), bvit 
 may in certain cases be entirely dispensed with. Thus where an attorney has 
 left tlie country for his health: Ex parte Cross, 2 Dowl. N.S. 692; or is unex- 
 pectedly absent: Ex parte Lyons, 6 Dowl. P. C. 517. How far the courts will 
 undertake to relax the provisions of the statute is a question. Every person 
 before being admitted an attorney or solicitor must prove by an nflidavit of him- 
 self, as well as of the attornej* or solicitor to whom he was bound, or his agent, 
 that he hath actually and really served and been employed by such attorney or 
 solicitor, &c. : Con. Stat. U. C. cap. 35. ss. 3, 4 ; 28 Vic. cap. 21, s. 5. It has been 
 held tluit an articled clerk can serve only one year with the agent of the attorney 
 in tliis Province: In re Oilkison. II. T. 7 Wni. IV. MS. R. & II. Dig. " Attor- 
 ney," i. 1. If the clerk carry on business in a place where the attorney does not 
 reside, the service will not be allowed: In re itclntos/iv. McKenzie, M. T. 7 Vic. 
 /«, L 2; Ex parte McLatyre, 10 U. C. Q. B. 294. Where the clerk during the 
 
 4 . 
 
C16 
 
 REGUL^ GENEUALES AS TO ATTORNEYS. 
 
 [R. 1. 
 
 •J it 
 
 QUESTIONS TO BE ANSWERED BY TUE CLERK. 
 
 1. What was your age ou the day of the date of your articles? 
 
 2. Have you served the whole term of your articles at the office 
 where the attorney or attorneys, to whom you were articled or assigned 
 carried on his or their business? If not, state the reason. 
 
 3. Have you at any time, during the term of your articles, been 
 absent, without the permission of the attorney or attorneys to whom you 
 were articled or assigned ? and if so, state the length and occasions of 
 such absence. 
 
 4. Have you, during the period of your articles, been engaged or 
 concerned in any profession, business, or employment, other than your 
 professional employment as clerk to the attorney or attorneys to whom 
 you were articled or assigned ? 
 
 5. Have you, since the expiration of your articles, been engaged or 
 concerned, and for how long time, in any and what profession, trade, 
 business, or employment, other than the profession of an attorney or 
 solicitor ? 
 
 QUESTIONS TO BE ANSWERED BY THE ATTORNEY. 
 
 1. Has A. B. served the whole time of his articles at the office where 
 you carry on your business ? and if not, state the reason. 
 
 2. Has the said A. B., at any time during the term of his articles. 
 been absent without your permission? and if so, state the length and 
 various occasions of such absence. 
 
 3. Has the said A. B. during the period of his articles, been engaged 
 or concerned in any profession, business, or employment, other than his 
 professional employment as your articled clerk ? 
 
 4. Has the said A. B. during the whole time of his clerkship, with 
 the exceptions above mentioned, been faithfully and diligently employed 
 in your professional business of an attorney and solicitor? 
 
 entire period of service was a pnlaried clerk attending a public office, the servics 
 waB not allowed: In re Ridout, T. T. 2 «fe 3 Vic. M.S. R. «fe U. Dig. i. 4. Absence 
 from ill health allowed: In re Ilngarty, 6 O. S. 188; In re Holland, lb. 441: 
 but not for other causes: In re Hume, 19 U. C. Q. B. 373; In re McGregor, 16 
 U. C. C. P. 54. Where there is good reason for discharging a clerk from his 
 articles, the court has power to allow the same to be done : In re Patterson, 
 18 U. C. Q. B. 260. There cannot be a legal partnership between an attorney 
 and his articled clerk: Dunne v. O'Reilly, 11 U. C. C. P. 404. The court wiil 
 not grnnt to the Law Society the costs incurred in opposing, even successfully. 
 the application of persons to be admitted attorneys: In re Kennedy, 3 Ir. JuV. 
 N. S. 120. 
 
I office where 
 
 ther tliaa his 
 
 R.2.] 
 
 UEQVLJE OENERALES AS TO ATTORNEYS. 
 
 617 
 
 5. lias the said A. B. since the expiration of his articles, been 
 eD<:!!iged or concerned, and for how long a time, in any and what pro- 
 fession, business, or employment, other than the profession of an attor- 
 ney or solicitor? 
 
 And I do hereby certify that the said A. B. hath duly and faithfully 
 served under his articles of clerkship (or assignment, as the case may 
 be) bearing date, «&c., for the term therein expressed; and that he is a 
 fit and proper person to be admitted an attorney. Rule 51, H, T. 
 13 Vic. 
 
 2- (ee) It is ordered, that whenever hereafter any attorney of this 
 Court shall be struck oflF the roll of attorneys, or be prohibited from 
 practising as an attorney therein, by order of this Court, for malpractice 
 or misconduct as an attorney, or other sufficient cause, (/) the clerk of 
 this Court shall forthwith certify such dismissal or prohibition, and the 
 
 {ee) The origin of this is our rule of Q. B. T. T. 15 Vic. ; and though placed 
 here among the general rules, it seems still to be restricted to the Queen's Bench ; 
 for it reads " Whenever hereafter any attorney oi this court, Ac. the clerk of this 
 court shall," &c. To the rule is added a memorandum to the effect that " a similar 
 rule exists in the Common Pleas." It seems that independently of any rule the 
 courts, out of courtesy tiie one to the other, may do all that this rule prescribes : 
 
 in re Collins, 18 C. B. 272; In re , 1 Ex. 463; In re Smith, 1 B. & B. 522; 
 
 In re Whytehead, 4 M. & G. 768. 
 
 (/) If an attorney disgrace himself by misconduct, so as to be an unfit person 
 to practice as an attorney, he may be struck off the rolls. In such a case the 
 courts exercise a discretion as to whether a man whom they have formerly 
 ndiiiitted is a proper person to be continued on the roll: Ex. parte Brounsall, 
 2C()\vp. 829. An attorney convicted of a disgraceful indictable offence: Stephens 
 V. IIM, 1 Dowl. N.S. 669; In re King, 8 Q. B. 129; such as larceny: Ex parte 
 Brounsall, 2 Cowp, 829 ; or of seditious practices : Ex parte Frost, 1 Chit. Rep. 
 558, n ; or of a conspiracy to extort money by means of libels : In re Ilawdonc, 
 9 Dowl. P. C. 970 ; is not a proper person to be continued on the rolls as an 
 attorney ; but a conviction for a conspiracy, unless aggravated, is not, it seems, 
 of sutHcient turpitude to justify the summary interference of the court: Anon. 
 1 Dowl. P. C. 174 ; In re King, 8 Q. B. 129. If an attorney misconduct himself 
 under circumstances affecting his professional character or course of business as 
 an attorney, though the circumstances do not constitute an indictable offence, 
 eucli attorney may be struck off the rolls: Re Aitkin, 4 B. <fe Al. 47; Ex parte 
 liode.nham, 8 A. <fe E. 959 ; In re Smith and Henderson, 13 U. C. C. P. 262 ; In re 
 Wriyht, 12 C. B. N. S. 705; or suspended from practising for a certain time; 
 thus, where he sends a threatening letter to extort money : Rex v. Southerton, 
 C East, 126; or conceals himself to avoid service of a rule for an attachment: 
 
 In re , 1 D. <fe R. 529; or refuses to answer interrogatories as to 
 
 misconduct imputed to him: Re Holmes, 12 Jur. 657. So an attorney may be 
 struck off the rolls for irregularities in his articles of clerkship or admission 
 as an attorney: In re Holland. 6 0. S. 441 ; but the application to be sue 
 cessful must be made within twelve months from tiie time of the admission of 
 the attorney or enrolment of his articles: Con. Stat. U. C. cap. 35, s. 19. The 
 Buminary interference of the court is not allowed if the matter of complaint, sup- 
 posing it to bo true, be indictable, especially if the charge be contradicted on 
 
 
 f f 
 
 t 
 

 618 
 
 REQUL^ GENERALES AS TO PRACTICE. 
 
 grounds thereof, expressed ia general terms, under the seal of this 
 Court, {g) and shall transmit such certificate to each of the other Supe- 
 rior Courts of Upper Canada, (Ji) and that this Court, on receipt of any 
 similar certificate from the Court of Chancery or the Court of Common 
 Pleas, of any attorney or solicitor of either of the said Courts respec- 
 tively, having been struck oflF the roll of such Court, or prohibited from 
 practising therein, shall thereupon take proceedings for striking such 
 person, being an attorney of this Court, from the roll of attorneys, or 
 for prohibiting his practising therein, according to the course and prac- 
 tice (and in like manner and under like circumstances) observed iu 
 similar cases in the Superior Courts in England. T. T. 15 Vic. Mtm. 
 A sioiilar rule exists in the Common Pleas. (Q 
 
 
 a.* L 
 
 m 
 
 REGULiE GENERALES A3 TO PRACTICE. 
 TBINITY TERM, 20th VIC. 0) 
 
 V. >iiiR7^48 tLe P'-actice of the Courts of Queen's Bench and Common 
 pleas ill arm lorljnper Canada has been to a great extent, super- 
 seded or altered by the Common Law Procedure Act, 1856, and it 
 is expedient that the written rules of practice of the said Courts 
 should be consolidated : (Jc) It is therefore ordered that all exist- 
 ing rules of practice in either of the said Courts in regard to civil 
 actions (J) — save and except as regards any step or proceeding takeo 
 before these rules came into force — shall be, from and after the first 
 
 afiELdavit : In re Patterson v. Miller, 1 U. C. Q. B. 256 ; or if an action or other 
 proceeding in respect of the same subject matter be pending and undetermined: 
 Anon. 6 Jur. 678. 
 
 (^) This court . i. « Q. B. : eee note ee on preceding page. 
 
 (A) ». «. Common Pleas and Chancery. 
 
 (i) The certificate should show the grounds on which he was struck off the 
 rolls : In re Tremayne, 1 4 U. C. C. P. 267. The application should be for a rule 
 to shew cause, and should not be moved on the last day of term : lb. 
 
 (/) Here follow the rules of practice framed by the judges under C. L. P. Act, 
 1866. They are for the most part copied from the English rules of Hilary term, 
 1863, framed by the English judges pursuant to the English C L. P. Acts. 
 
 (A;) Written rules of practice, Ac. The object of these rules is to repeal all 
 existing written rules of practice and to cousolidate them — such, for example, as 
 our rules of T. T. 2 Geo. IV.; M.T. 4 Geo. IV. ; H, T. 7 Geo. IV. ; E. T. 9 Geo. 
 rV. ; H. T. 10 Geo. IV. ; E. T. 11 Geo. I V. ; H. T. 1 Wm. IV. ; T. T. 3 & 4 Wm. 
 rV. ; E. T. 4 Wm. IV. ; T. T. 6 Wm. IV. ; M. T. 3 Vic. ; E. T. 6 Vic. ; II. T. 
 13 Vic; T. T. 15 Vic. Unwritten rules, if any such there be, remain in force, 
 except BO far as inconsistent with the rules here annotated: Begg v. Forbes, 
 18 C. B. 614. 
 
 (0 See Tolton t. Bishop of Carlislt et «!, 8 C. B. 41. 
 
 1 ,1 
 
Bs. 1, 2.] 
 
 TEINITY TERM, 1856. 
 
 619 
 
 day of Trinity Term, 1856, annulled, (m) and that the practice, to 
 be thenceforth observed in the said Courts with respect to the mat- 
 ters hereafter mentioned, shall be as follows, that ia to say: (n) 
 
 APPEARANCE, (o) 
 
 1, (p) The clerks and deputy clerks of the Crown shall enter, in 
 books to be kept by them for that purpose, (q) every appearance of 
 which a memorandum according to the statute shall be delivered to 
 them respectively, and shall file such memorandum on the day they 
 receive the same, (r) 
 
 3. (s) If two or more defendants in the same action shall appear 
 
 '■'A'i 
 
 (m) Shall be annulled This is a very strong expression. The meaning of it 
 as used in this order is that all written rules of practice in regard to civil actions 
 in furce when the rules here annotated took effect, shall be made void and of no 
 
 effect. 
 
 (n) In construing these rules of practice, the rules used in the construction 
 of acts of parliament, so far aa applicable, ought to be applied: sec Calvcri v 
 Gandy, 14 L. J. Uy. N.S. 141. 
 
 (o) It is the duty of a defendant who has been regularly served with process 
 tn appear thereto. Such is the command of the writ, viz. "that within ten days 
 after the service of this writ on you, inclusive of the day of such service, you ilo 
 cause an appearance to be entered for you :" Sch. A, No. 1, C. L. P. Act. Whure 
 the writ, specially endorsed, was served on 31st December, 1856, and execution 
 in default of appearance issued on IVth January, 1857, held too soon, and there- 
 fore irregular : Kerr et al v. Bowie, 3 U. C. L. J. 111. And per judicem, "Tlie 
 saramons was served on Slst December, and by it the defendant was told that lie 
 must cause an appearance to be entered for him within ten days after the service 
 of the writ, inclusive of the day of such service. We must therefore count ;{ I st 
 December as one of the ten days, and besides that day defendant had the lirst 
 nine days of January to enter his appearance. It would be impo.ssible to hold 
 that he had the tea days, if he were obliged to enter his appearance on 8th 
 January at latest. Having, therefore, 9th January as his tenth day, he has al! 
 that day on which to enter bis appearance, and judgment could not be legally 
 signed on that day:" lb. In computing the ten days for appearing, the day of 
 service is reckoned inclusive, not exclusive, so that if tlie writ be served on Sat- 
 urday, judgment may be signed one week from the following Tuesday: Ross et al 
 V. Johnstone et al, 4 U. C. L.J. 21. A defendant by appearing not only waives 
 any irregularity in the writ, copy, or service, but by so doing may waive even 
 the total want of a writ : see note k to section 5 1 C. L. P. Act. 
 
 [p) This rule is original, but in effect the same as repealed section 23 of 12 
 Vic. cap. 63. 
 
 (j) Where an appearance filed by defendant was by mi-stake indorsed with 
 letters "C. C." which misled the deputy Clerk of the Crown, who was also clerk 
 of the county court, and caused him to file the appearance among his county 
 «ourt papers, and plaintiff finding no appearance, signed judgment, the judgment 
 was set aside upon payment of costs by defendant : Dickie et al v. Elmslie, 3 U. 
 0. L. J. 107. 
 
 (r) See section 53, C. L. P. Act, and notes thereto. 
 
 (i) Taken from Eng. R. G. No. 2 of H. T. 1853, 
 
 1 .' 
 
 ( 
 
 
620 
 
 nEQVhm GENERALES AS TO PRACTICE. [Rs. 3-5 
 
 
 l^mm ■<}f 
 
 
 M0:i 
 
 by tlio same attorney and at the same time, (<) the names of all 
 the defendants so appearing shall be inserted in one memorandum of 
 appearance, (m) 
 
 ATTORNEY AND GUARDIAN, (d) 
 
 3. (w) An attorney not entering an appearance in pursuance of hi« 
 undertaking, shall be liable to an attachment. 
 
 4- (x) No attorney shall be changed without the order of a 
 Judge, (y) 
 
 5- (2) A special admission of prochein amy or guardian to prose- 
 cute or defend for an infant shall not be deemed an authority to prose- 
 cute or defend in any but the particular action or actions specified, (cj) 
 
 (<) Where an attorney without authority entered an appenranco and defendant 
 had not received any notice of the writ, on his application the appearance and 
 all subsequent proceedings were set aside: Wriffhl et al v. Hull el al, 2 Prac 
 R. 26. 
 
 («) As to the form and mode of appearance: see section 53, C. L. P. Act, and 
 notes thereto. 
 
 («) At one time all appearances were in person, but it is now the practice, 
 ■^Tilh a few exceptions, to appear by attorney. 
 
 (w) Taken from Eng. R. G. No. 3 of II. T. 1853, the origin of which was Eng. 
 R. G. No. 31 of II. T. 2 Wm. IV.: Jervis N. R. 06. An attorney by accepting 
 service of a writ of summons undertakes to enter an appearance for defendant: 
 Starratt v. Manning, 3 U. C. L. J. 10. Where an attorney undertakes to appear. 
 the court will compel him to do so although imposed upon when he gave the 
 undertaking: Lonjmer v. Hollister, 2 Str. 693. The appearance must be in a 
 manner agreeable to the situation of the defendant; thus, if the defendant be an 
 iflfant, the appearance must be by guardian: Siratlonv. Burgis, 1 Str. 114. The 
 punishment for non-appearance after an undertaking to appear is, as ordered by 
 this rule, attachment. Before, however, moving for the attachment, a request 
 «hould be made of the attorney to enter tlie appearance: Jacobs v. Mnynati, 
 1 Jur. 32t). It seems the undertaking need not be in writing: Anon. 2 Chit. R, 
 36 ; Loryiner v. IIoLliateT, 2 Str. 693. 
 
 (z) Taken from R. 6. No. 4 of H. T. 1853. 
 
 (,v) This rule, it is apprehended, only applies where the attorney acting ha? 
 authority to do so, and his authority has not expired: see Dot d. Bloomer elal 
 V. Bnnisom. 6 Dowl. P C. 490 ; Mai/ v. Pike, lb 607 ; and does not apply where 
 a party defends in person and afterwards appears by attorney : Jones v. King, 
 5 1). A L. 412; Kerrison v. Wallingborovgh, 5 Dowl. P. C. 564. An order under 
 this section has beee granted without an affidavit : In re Glatse v. Glassc, 2 U. 
 C. L. J. 218. 
 
 («) Taken from Enjj. R. G. No. 5 of H. T. 1853, the origin of which was Eng. 
 R. G. No. 2 of II. T. 2 Wm. IV. : Jerv. N. R. 57. 
 
 (a) In tlie English court of Common Pleas the admission was special to prose- 
 cute or defend a particular action, or general to prosecute and defend all actions 
 whatsoever; but it was said that the practice of the English court of King's 
 Bench, to which the practice of our Queen's Bench was made to conform^ a 
 
U 0-8.] 
 
 TRINITY TERM, 1850. 
 
 621 
 
 C. L. P. Act, and 
 
 aow the practice, 
 
 of which was Eng. 
 
 JOINDER OF PAHTIKS. (')) 
 
 6' (<") Whenever a plaintiiF shall amend the writ after notice by the 
 defendant, or a plea in abatement of a non-joinder, («/) by virtue of 
 the Common Law Procedure Act, 1856, section GO, (r) he shall file a 
 consent in writing of the party or parties whose name or names are to 
 be added, (/) together with an affidavit of the handwriting, and give 
 notice thereof to the defendant, unless the filing of such consent be 
 dispensed with by order of the Court or a Judge, (rj) 
 
 PLEADINGS. (A) 
 
 7. (0 No side bar rule for time to declare shall be granted. (J) 
 
 8. (Ic) The defendant shall not be at liberty to waive his plea, or 
 enter a rdicta verifirathne, (/) after a demurrer, without leave of the 
 Court or of a Judge, unless by consent of the plaintiff or his attorney. 
 
 ippciiil admission would be sufticient; in nil actions: Archer v. Frowih, \ Str. 
 305 ; .Jervis X. II. 57. In the rule hero annotated the practice of the Common 
 Pleas has been adopted, 
 
 (h) A consideration of the right of two or more persons to be joined as plain- 
 tiffs, or the liability of two or more persons to be joined as deffiidants in an 
 iction either upon contract or for tort, often presents questions of great nit-ety. 
 The f^ubject is discussed in sections 63 and 64, C. L. P. Act, aud notes thereto. 
 
 (c) Taken from Eng. R. G. No. 6 of II. T. 1853. 
 
 ((f) As to pleas in abatement: see note w to section 07, C. L. P. Act. 
 
 (f) As to when and under what circumstances the amendments may be made: 
 tee notes x to section 67 C, L. P. Act. 
 
 (/) The consent may be in this form — " Title of rourt and ciuxe I consent 
 to bi' joined as a defendant in the above cause together with the above-named 
 dcfenjaiit. Dated," &c, 
 
 {g) Relative powers : see note w to section 48, C. L. P. Act. 
 
 (A) See C. L. P. Act, section 90 et stq. and notes thereto. 
 
 (i) Taken from Eng. R. G. No. 7 of H. T. 1853. 
 
 (/) It is necessary for a plaintiff liable to judgment of nnn pros and desiring 
 further time to declare, to make application to a judge in chambers for that 
 
 purpose. 
 
 (/.) Taken from Eng. R. G, No. 8 of II. T. 1853. This rule, so far as it pre- 
 vents a defendant waiving his plea after demurrer without loave, is a rc-eiiuct- 
 ment of Kng. R. G. No. 46 of II. T. 2 \Vm. IV. Jervis N. R. 71, from which our 
 old rule No. 11 of E. T. 5 Vic. Cam. R. 22, was copied. 
 
 (0 In the Common Pleas and Exchequer of England the defendant could not 
 
 waiv 
 
 e his plea: Chit. Prac. 136; but in the King's Ik'ucii it was net 
 
 to 
 
 rule the defendant to abide by his plea, which occasioiietl delay and expense, 
 ind iitt'orded an opportunity to plead sham pleas: Jervis N. K. 71. Our prac- 
 tice hciny; that of the King's Bench, the object of our rule 11 of E. T. 5 Vic. and 
 of the rule here annotated, is to put an end to the practice of defendants plead- 
 
 r.t; 
 
 U.; 
 
 li 
 
 'll^li 
 
 < i 
 
 
 
iir 
 
 aii^i r 
 
 G22 
 
 REQULvE QKNERALES AS TO PRACTICE. [Rg. 9^ 10 
 
 O. (m) In case the time for pleading to any declaration or for an- 
 swering any pleading, shall not have expired before the first day of 
 July in any year, the party called upon to plead, reply, &o., fthall have 
 the same number of days for that purpose after the twenty-first day of 
 August, (n) as if the declaration or preceding pleading had beon deli- 
 vercd or filed on the twenty-first day of August, (o) 
 
 10. (p) When a defendant shall plead a plea of judgment recovered, 
 he shall in the margin of such plea state the date of such judgment, 
 and if such judgment shall be in a court of record, the number of the 
 roll (if any) ou which such proceedings are entered, and in default of 
 his so doing, the plaintiff shall be at liberty to sign judgment as for 
 want of a plea, (<j) and in case the same be falsely stated by the defen- 
 
 iiig, and often purpnsuly so, a bad jjlea, Tvhich on being demurred to, he nould 
 witlidraw by entering a relidn venjicalione, and upon whicii lie would not liave 
 to pay any costs unless tjie plaintiff afterwards got judgment in the action, when 
 they would be allowed to iiirn as costs in the causae. Such cannot now he dune 
 "without leave of the court or of a judge, unless by consent of the plnintitfor 
 liis attorney: see Davidson v. Bohn, 5 C. H. 170; see further Cooper v. I'ainler, 
 18 M. & W. 7;i4, n. The application to withdraw one plea and plead another, if 
 made bona fide and appearing to be reasonable, will be granted at any 8tn;,'e of 
 the cause : Free v. Hawkins, 7 Tftunt. 278. it is usual, however, for the court 
 or judge to impose terms, such as short notice of trial, «fec. : Taylor v. Jo'ldrtU, 
 1 \Vils. 254; Wt/kea v. Wood, 2 VVlls. 2o4. It seems that if a defendant without 
 leave, in violation of this rule, witlidraw his plea, plaintiff may sign judgment: 
 Fainter v. JJixon, & I). & K. 623. 
 
 (w) Taken, with modifications, from Eng. R. G. No. 9 of II. T. 1853, tbt 
 origin of which is Eng. R. G. No. 12 of M. T, S \Vm. IV: Jcrvis N. R. 97. 
 
 (n) See section 59 C. L. P. Act. 
 
 (o) This rule applies as well where a defendant lias further time to pleoil. 
 ■which does not expire before the commencement of vacation, as where the 
 original time to {)lead does not so expire : Wilson et al v. JBradx!ocf:e, 2 Dowl. 
 P. C. 416 ; Trinder v. Smedhy, 3 Dowl. P. C. 87. If the time for pleading expire 
 before 1st July, plaintiff may sign judgment whenever he chooses afterwards; 
 but if it expire on 1st July, he cannot sign judgment until the expiration oj the 
 time limited for pleading after vacation : Morris v. Hancock, 1 Dowl. N.S. 820 : 
 Saver;/ v. Llxter, 6 D cfe L. 257 ; Severin v. Leicester, 12 Q. B. 949. A plea filed 
 or served between 1st July and 2 1st August is a nullity : Alills v. Brown, 9 Dowl. 
 151. So if 30th June bo a Saturday, and a plea be filed and servetl after three 
 o'clock on that day, it will be considered as filed and served on 2nd July aiid so 
 a nullity : see Hharp v Jioe, I H. & N, 496 ; and R. G. Pr. 135. 
 
 {p) Taken from Eng. R. G. No. 10 of H. T. 1853, the o.'gin of which wa» 
 R. G. No. 8 of 4 \Vm. IV: Jervia N. R. 107. 
 
 {(f) This rule does not seem to apply to a plea by an executor of a judgment 
 recovered, for that is in effect only a plea of plene administravit : Power v. /Vy. 
 3 Dowl. P. C. 1 10. Indeed it is known that the rule when first passed was only 
 intended to apply to the usual sham plea of a judgment recovered by plaintiff 
 against defendant for the same demand : Brokeitshir v. Monger, 9 M. & W. 112, 
 
"•in of which wae 
 
 Rs. 11, 12.] 
 
 TRINITY TERM, 1856. 
 
 623 
 
 dant, the plaintiff, on producing a certificate from tlic proper oiScor or 
 person having the custody of the records or proceedings of the coait 
 where such judgment is alleged to have been recovered, that there is 
 DO such record or entry of a judgment as therein stated, shall be at 
 liberty to sign judgment as for want of a plea. 
 
 PAYMKNT OP MONET INTO COURT, (r) 
 
 II- (0 No nffidavit shall be necessary to verify the plaintiff's sig- 
 nature to the written authority to his attorney to take money out of 
 court, unless specially required by the master. (<) 
 
 12. (u) When money is paid into court in respect of any particular 
 sum or cause of action in the declaration, and the plaintiff accepts the 
 same in satisfaction, the plaintiff, when the costs of the cause are 
 taxed, shall be entitled to the costs of the cause in respect of that part 
 of Lis claim so satisfied, up to the time the money is so paid in and 
 taken out, whatever may be the result of any issue or issues, in respect 
 of other causes of action; (y) and if the defendant succeeds in defeat- 
 
 ftr Parke, B. It docs not apply to a plea that a cause of action was set off in » 
 previous action: lb. 111. 
 
 ()•) As to when and under what circnmstances money may be paid into Court 
 Bee section 99 C. L. P. Act, and notes thereto. And as to the effect thereof, see 
 notes to section 102 C. L. P. Act. 
 
 (s) Talvcn from Eng. R. G. No. 11 of 11. T. 1853. 
 
 (/) Tliis it is behoved was the well understood practice before this rule 
 was made. 
 
 («) Taken from Eng. R. G. No. 12 of II. T. 1S53. 
 
 (y) Hitherto when money was paid into court in satisfaction of part only of 
 plnintilTs demand, there being other issues upon which the parties were pro- 
 ceeding to trial, plaintiff was not held upon taking the amount out of court to 
 be entitled to costs : Cuu'.y v. Gyll, 4 M. «fe G. 907. In general, where plaintiflf 
 replies by accepting the sum paid into court on a specific plea, he is entitled to 
 his costs of suit (section 102 of C. L. P. Act) on that plea, whatever becomes of 
 the other issue or issues, if others there be : Humbelow v. Whalley, 16 Q. B. 397. 
 Su plaintiff is entitled to the general costs of the cause when defendant pays 
 money into court on a new assignment and it is accepted : Benn v. Bateman, 
 8M, & W. 666. A plaintifif brought an action for £12 .'is. T^d. for goods sold 
 and delivered. The defendant paid £10 on account, and before declaration took 
 out a summons calling on the plaintiff to show cause why the proceedings 
 should not be stayed on payment of the further sum of 6s. 4^d. and costs. The 
 plaintiff claiming more, no order was made. A declaration was afterwards doli 
 vered, and the defendant paid 7s. into court, which plaintiff accepted. Held, 
 dimulicnte Cresswell, J., that the plaintiff's acceptance of 7s. after his refusal of 
 69. 4id. did not disentitle him to the costs incurred subsequently to the offer: 
 ^liaw V. Hughes, 15 C. B. 660. To an action for more than £20, defendant paid 
 into court a less sum thau £20, which plaintiff took out in full satisfaction, and 
 
 
 ll.tJllrSi ill} , 1 
 
624 
 
 BEQULif! OENERALES AS TO PRACTICE. [Rs. 13 \t 
 
 
 ing tbo rcsiducof the claim, he will bo entitled to the costs of the 
 cause in respect of such defence commencing at *' Instructions for 
 Plea," but not before. 
 
 13- (lo) Where money is paid into Court in several actions wV '' 
 are consolidated, and the plaintiflF, wi hout taxing coHts, proccec 
 trial on one, and fails, he shall be entitled to co.sts on the others, up to 
 the time of paying money into court, (x) 
 
 DEMUUUEU. (;j) 
 
 14:. (3) The party demurring may give a notice to the opposite 
 party to join in demurrer in four days, (a) which notice may be 
 
 entered n tioUe proneipii as to the rcsiilue. Held tlint the money so [mid into 
 court and taken out entitled plaintiff to his costs of suit without tlu' oriior of a 
 jud^e: Chainhcru v. Wilex, 21 L. J. Q. 13. 207. Wiiere a plaintiff" refused 11 sum 
 of money tendered throui^h the medium of a judge's summons in satisfaction of 
 his claim, and afterwards took out of court a sum slif>;htly exceeding that m 
 tendered, his conduet was held not to be such prima facie evidence of o|)|)rc's,«ion 
 as to deprive him of costs: Shaw v. IJur/hcx, 15 C. li. CriO. To inquire wluilier 
 the sum ultimately accepted is suhstantialbj the sum which was offered woiil' ba 
 to introduce in many cases a very inconvenient discussion : lb. 065, per >' 
 J. Wiien money is paid into court after issue joined and ))lainliff elect 
 on with the action for the residue of the claim and fails at the trial, lu 
 entitled on taxation of costs to the costs of preparation for trial, even alliiou^u 
 partly incurred before the payment into court : Harold v. Uniith, 5 11. A N. liSl. 
 
 (if) Taken from Ena:. R- ^^- No. 1.3 of U. T. 185,3, the origin of which is Eng. 
 R. G. No. 101 of H. T. 2 \Vm. IV. Jervia N. R. 89, from which our Uule No, 
 27 of E. T. 5 Vic. Cam. R. 31, was taken. 
 
 (a;) Where several actions are consolidated, plaintiff is generally made to pay 
 the costs of the application : see Cecil v. Brii/gen, 2 T. R. 639. 
 
 (»/) A demurrer in pleading is an admission bj' one party of the fact or facts 
 charged in the pleading of his opponent, but referring the law arising on such 
 fact or facts to the judgment of the court. The only cause of demurrer now 
 allowable is that the pleading of the opposite party does not contain sufficient 
 ground of action, defence, &c. : C. L. I*. Act, section 1 20. Either party may 
 with leave plead and demur to the same pleading at the same time : Ih. section 
 109. Where a demurrer was signed " A. B. deiendant's attorney," A. B. being 
 both the counsel and attorney of the defendant, the signature was considered 
 sufficient, as the words " defendant's attorney" miaht be rejected a" surplusage: 
 Lemo'ue v. liaymoud, H. f. 5 Vic. MS. R. «fe H. Di^. "Demurrer," 7. However, 
 it is now enacted that the signature of counsel shall not be required t& any 
 pleading: C. L. P. Act, section 90. A demurrer commencing, "and the defen- 
 dant says that the said declaration is not sufficient in law," and then proceeding 
 to assign separate causes to each count, is in form a demurrer to the whole 
 declaration : Parrett Navigation Co. v. Slower et al, 6 M. & W. 564. 
 
 («) Taken from Eng. R. G. No. 14 of H. T. 153, the origin of which is Eng. 
 R. G. No. 3 of ^' T. 4 Wm. IV : Jervis N. R. 106. 
 
 (a) Neither party can bo compelled to join in the demurrer before the expir 
 fttion of the four days: Hall v. Fopplewell, 5 M. & W. 341. 
 
m 
 
 11. 15.] 
 
 TKIMTY TERM, 1850, 
 
 G25 
 
 •ally made to pay 
 
 >r before the expir 
 
 delivered separately, or endorsed on tho demurrer, (i) otherwise 
 
 judgment, (c) 
 
 1«5. f'O No motion or rule for a concilium shall be required, but 
 demurrers as well as all special cases, (^r) special verdicts, (/) and 
 appeals from county courts (7) shall bo set down for argument at the 
 request of cither party with tho proper officer, {(fij) four days before 
 tho duy on which tho same arc to bo argued, and notice thereof shall 
 be given forthwith by tho party setting tho same down to tho opposite 
 party. (A) 
 
 (J) Tho notice niny bo in tliis form — Title of Court and Came. Tako notice 
 tlmt unlcsi< you Join in tlio demurrer in this cause in four days' judjjmcnt will be 
 signed aijainst you. Dated, ikc, 
 
 (c) If either party obtain a rule which operatcg as a stay of procoodlnKs 
 after tl»o time for joininjj in demurrer 1ms expired, but bei"ore judufnient is 
 signed, he has tho wliolo of tho day on wiiich tho rule is discharged to join in 
 the demurrer: Vei-non v. Ilodgim, 4 Dowl. P. C. CCS ; Ilall v. Popplcucll, ,5 M. A 
 W, ."11. In trespass the defendant pleaded two pleas, upon one of which the 
 plaintiff joined issue, and replied to thootlier; tho defondan' rejoined and the 
 plaint ill' demurred to the rejoinder; tho defendant did not ji'in in demurrer, bnt 
 gave notice to the plaintiff that he should take no furtlier steps in respect of his 
 second jilea; tho court set aside for irregularity a judgment signed upon the 
 whole record : Hitchcock v. Walter, 6 Dowl. P. C. 457 ; see also Mclntyre v. Miller 
 tfa/, 2D. d:L, 708. 
 
 {d) Taken from Eng. R G. No. 16 of IT. T. 1853, tlio origin of which was Eng. 
 R, G. No. 6 of II. T. 4 VVm. IV. Jervis N. K. Iu6. with wJiich our old Kulo No. 
 20 of E. T. 6 Vic. Cam. II. 28 corresponded. 
 
 (c) As to special cases: see notes to section 154 of C. L. V. Act, 
 
 (/) As to special verdicts : see notes to section 25 of tho Ejectment Act. 
 
 (g) As county court appeals must be set down for argument for the first or 
 second paper days of each term, such day being the first paper day next after 
 the date of the appeal bond, unless leave bo granted by the court upon special 
 affidavit to set it down for a subsequent paper day: R.G, H, T. 30 Vic. 26 U. C 
 Q. B. 421, 
 
 (gg) Either party may sot down a demurrer for argument: Jones -y. Dunn, 
 1 U. C. C. p. 204. A demurrer was set down by the plaintiflf before the openine 
 of the court on the first day of Michaelmas Term for argument on the second 
 paper day, and afterwards about twelve o'clock on the same day it was set down 
 oy defendant for argument on tho first paper Jay. During tho same term in 
 Practice Court a rule to strike out the demurrer entered by the defendant was 
 discharged, on the ground that the plaintiffs entry was improperly made before 
 the court met. The court, however, heard the cause on tho duy for which it had 
 been entered by the plaintiff, holding that he had a right to set it down before 
 the opening of the court Moody v. Dougall, 3 Prac. II. 145. 
 
 (ft) The notice may be in this form — Title of Court and Came, Take notice 
 that the demurrer to be argued in this cause was this day set down for argu- 
 ment for the day of instant — In ordinary cof 3S the notice should be given 
 « sufficient time to enable the opposite party to prepare for the argument : 
 BriUen v, Britten et al, 2 Dowl. •.: C 239. Where a demurrer is manifestly for 
 40 
 
 I m 
 
 u 'r.\, 1 1 'I 
 
 'm;;|'..., 
 
 '!■ 
 
 
 'M'^ 
 
 11. !1 
 
 I ■ ■ ■ * . ?! 
 
 1.'; 1' 
 
 ^1 
 
& I 
 
 626 
 
 REGUL^ GENERALES AS TO PBACTIOE. 
 
 [R. 16. 
 
 16- (0 The party vihose pleading has been demurred to shall, with 
 his joinder in demurrer, or at any time within the time allowed for 
 joining in demurrer, (j) or within such further time as a judge on 
 application may allow, deliver to such opposite party a notice in writing 
 of all exceptions, intended to be taken on the argument to any preced- 
 ing pleading of the party demurring, and in default of such notice 
 shall be precluded flrom arguing any such exception, (^) and all excep- 
 tions whereof notice has been so given shall be entered on the demurrer 
 books, to be delivered to the judges, and if the party setting down the 
 case for argument shall omit to enter on the demurrer book any excep- 
 tion made by the opposite party, of which he has had due notice, the 
 court may, in its discretion, either give judgment in favor of suh 
 
 i 
 
 ^p!<.J 
 
 1 
 
 
 
 delay, the court may allow it to be set down for argnmont oven on tlie last day 
 of term: Wilson v. Tucker, 2 Dowl. P. C. 83 ; Cooper v. Ilawkes, 1 C. <fe J. 2lli. 
 The demurrer cannot be set down for argument before the opposite part}' has 
 joined in demurrer, and consequently notice that the demurrer has been set 
 down cannot be served at the time of the delivery of the joinder in demurrer ; 
 Gibbons V. Mottram, 1 D. & L. 815 ; Hall v. Foppleicell, 5 M. <fe W. 341 ; JIowoHh 
 V. Hnbbersty, 3 Dowl. P. C. 457. Where a rule with a stay of proceedings 1ms 
 been taken out and served to show cause why a verdict rendered should not be 
 set aside for irregularity, a notice of argument of demurrer and the setting' 
 do .vn the same demurrer subsequent to the rule, will be set aside with costs : 
 City Bank v. Ecclcs, 6 U. C. Q. B. 633. The demurrers are to be set down for 
 argument "four days before the day on which the same are to be argued. This 
 apparently excludes the day on which the argument is to take place. But tLc 
 practice is to include it as one of the four days. 
 
 (i) Taken from our Rule No. 27 of H. T. 13 Vic, 
 
 (;■) See R, G. pr. 14. 
 
 {k) After judgment has been once given on the r-'cord against a defendant 
 upon a demurrer to his pleas, and he has been allowed to add another jilei 
 which when demurred to he abandons, he cannot bo allowed on his second 
 demurrer to take exceptions to the declaration, the court having already ad- 
 judged it to bo good: Hobsony. Wellington District Mutual Fire Insurame Co. 
 1 U. C. Q. B. 19. Where defences were severally pleaded to the several couuts 
 of a declaration, and demurred to and not supported, and on the argument of 
 the demurrer an exception was taken to the whole declaration that it wns bad 
 for a misjoinder of counts, the first and third counts being in assumpsit ond tliu 
 third in case, the court though admitting the declaration to be bad for the 
 reason assigned would not give judgment against the plaintiff — the questiun 
 upon the consistency of the declaration as a whole not having been raised under 
 the demurrer: McLeodv. Eberts et al, lb. 251. Where no notice of exceptions 
 to the declaration after demurrer to a plea is given, the court will refuse to 
 entertain the exceptions of their own accord, unless the declaration shew that 
 on the facts stated the plaintiff really has no ground of action : Shouldict v. 
 Fraser, lb. 60 ; see also Ferrie et al v. Lockhart, 4 U. C. Q. B. 477. Where there 
 is a demurrer to a plea and exceptions are taken to the declaration, if the 
 plaintiff on the argument abandons the demurrer to the plea, the court will not 
 g;ive judgment on the exceptions: Martin v. ArUmr, 16 U. C. Q. B. 483. 
 
Rs. 17-19.] 
 
 TRINITY TERM, 1856. 
 
 m 
 
 >n on the last dav 
 <kes, 1 C. & J. 219. 
 opposite party bas 
 irrer has beeu set 
 inder in demurrer ; 
 & W. 341 ; IJoicorili 
 of proceedings \m 
 [ered should not be 
 er and the aettin:,' 
 jt aside with costs ; 
 |to be set down fijr 
 x> be argued. This 
 ike place. But tbc 
 
 against a defendant 
 
 add another \<h-\ 
 owed on his second 
 
 having already a'l- 
 il Fire Jiisurame i\ 
 .0 the several couut3 
 
 on the argument of 
 ion that it wns bad 
 in assumpsit and the 
 
 1 to bo bad for tho 
 laintiff— the question 
 ng been raised under 
 
 notice of exceptions 
 
 court will refuse to 
 
 leclaration shew that 
 
 action: Shouldictv- 
 
 B. 477. "Where there 
 10 declaration, if the 
 ■a, tho court will not , 
 
 C. Q. B. 483. 
 
 opposite party, or may strike the case out of the paper, and allow the 
 opposite party reasonable costs for attending to argue the demurrer. (Z) 
 
 17. (m) Four days (w) before the day appointed for argument, the 
 party setting down the case for argument (o) shall deliver a copy of the 
 demurrer hook, special case, or special verdict to each of the judges, 
 otherwise the case shall not be heard. (^)) 
 
 18. (j) When there shall be a demurrer to part only of the declara- 
 tion, or other subsequent pleadings, those parts only of the declaration 
 and pleadings to which such demurrer relates, shr.l' be copied into the 
 demurrer books, and if any other parts shall be copied, the master 
 shall not allow the costs thereof on taxation, c.ther as between p;irty 
 and party, or as between attorney and client, (r) 
 
 CHAXGE OF VEXUE. (i) 
 
 19. (m) No venue shall, unless upon consent of the parties, be 
 
 (l) Xotico of exceptions to the declaration having been duly served by the 
 defendant were omitted by the plaintiff in the demurrer books entered by him. 
 Tlie court refused to give judgment in favor of the defendant as allowed by the 
 rule of court, tho plea being clearly bad, but allowed the exceptions to be 
 w^jued : Curry v. AfcLeod, 12 [J. C. Q. B. 513. Scmhle, that such cases will in 
 future be struck out of the paper : lb. 
 
 (m) Taken from our old Rule No. 28 of II. T. 13 Vic. 
 
 (li) Sunday to bo included unless the last of the four days: Ilodfjins v. Han- 
 cock, 14 M. & W. 120. 
 
 (o) Either party may in this Province set down a demurrer for ar2;umont : 
 R. (t. pr. 1 5. The tenfrlish practice is different : R. G. No. 16 of H. T. 1853, taken 
 from 11. G. No. 7 of H. T. 4 Wm. IV : Jervis N. R. 107. 
 
 (/)) And the demurrer may be struck out: Abraham v. Cook, 3 Dowl. P. C. 
 215; Watson v. Scarlett, 1 D. «fe L. 810 ; see also Finherv. Siww, 3 Dowl. 1'. C. 27; 
 Sandall v. Bennett, 2 A. A E. 204; Sanghurst v. Haynes, 13 W. R. 2U1. 
 
 ((/) Taken from Eng. R. G. No. 17 of H. T. 1863. 
 
 (r) The object of this rule is a good one, viz.*, to save expense in the copying 
 of unnecessary pleadings. 
 
 (t) The county r.here the action is brought must be specified, so that there 
 niHy be process to the sheriff of that county to bring a jury to try the cause : 
 see Mostyn v. Fabripas, 1 Cowp. 1 76. This count}' wiiich is made to appear on 
 the face of tho declaration is called the venue {vicenetimn). If there be good 
 reason for having the trial in a county other than that specified, t!iere must be 
 a " change of renue." The change is always made " according' as it shall 
 appear to the court or judge that the cause may be more convcniiMitly and fitly 
 fried in the county in which the cause of action arose, or that in which the 
 venue has been laid." 
 
 («) Taken in part from Eng. R. G. No. 18 of H. T. 1853. The rule applies to 
 iclions commenced before the C. L. P. Act came into force, when the application 
 to change the venue ia made after that time : Smythe et al v. 2ower, 2 U. C. 
 L, J, 183. 
 
 mi 
 
 m 
 
 M 
 
628 
 
 RE(iUL/i; OEN'ERALES AS TO PRACTICE. 
 
 [R. 20. 
 
 Sf^t^lv . 
 
 .M.| 
 
 changed, (t) without an order of the court or of a judge, made after a 
 rule to show cause or a judge's summons; (lo) but such order may 
 nevertheless bo made before issue joined in those oases in which it 
 could have been so made before this rule; (x) and in all cases the 
 venue may or may not be changed, according as it shall appear to the 
 court or judge, that the cause may be more conveniently and fitly tried 
 in the county in which the cause of action arose, or in that in which 
 the venue has been laid. (^) 
 
 PAItTICUJ.ARS OP DEMAND OR OF SET-OFF. (.') 
 
 90. (fl) With every declaration (unless the writ has been specially 
 endorsed under the provisions contained in the 41st section of the 
 Common Law Procedure Act, 185G) (b) delivered, containing causes 
 of action, such as those set forth in schedule B of that Act, numbered 
 from one to eleven inclusive, or of a like nature, (c) the plaintiff shall 
 
 {v) The rule is proliibitory. It means that an order to change the venue sliall 
 not be tiKide of course, but only after a summons to show cause: Begg v. Forbts 
 et al, 13 C. B. 616, per Maule, .J. 
 
 [w) Formerly there were cases in which defendant might change the venue m 
 n matter of course, reserving to plaintiff the right to bring it back upon under- 
 taking to give material evidence. Now, to prevent the delays arising from such 
 a practice, no change can be made without the knowledge of plaintiff, and tlicn 
 only after an opportunity afforded him to show cause. As to when, in an appli- 
 cation to change the venue, a common affidavit is sufficient and when a special 
 affidavit is required : b;j3 note h to section 89, C. L. P. Act, 
 
 {x) It is a common practice to impose terms when granting the application, so 
 as to protect plaintiff from disadvantageous results : liowring v. Bignold, 1 Dowl. 
 P. C. 685 ; Keys y. Smith, 10 Bing. 1 ; At/wood v. Ridley et al, 2 M. «t G. 893; 
 see further note h to section 89, C. L, P. Act. 
 
 (;/) An order to change the venue was refused when applied for on the com- 
 mon affidavit, though defendant had proceeded by summons in a case where 
 plaintiff showed that he could give evidence in the county where the venue was 
 laid, and defendant did not show any special circumstances for a change: Car- 
 ruthem v. Diekry, 2 U. C. L. J. «L85. The practice is now to change the veniu' 
 to the county where it can be most conveniently tried: see note h to section 89, 
 C. L. P. Act. 
 
 («) The object of particulars of demand or of set-off is to explain respectively 
 the declaration and plea, where, by reason of generality, the exact demand or 
 defence is doubtful. Hence particulars are more especially required when the 
 declaration is on the common counts. It would seem that courts of common 
 law, independently of any statute or rule, have power to order particulars of 
 <leman(l and of set-off: Bidnois v. Mackenzie, 4 Bing. N. C. 132, /wr'Tindal, C. J. 
 
 (a) Taken from Eng. R. G. No. 19 of H. T, 1853, the origin of which was Eng;. 
 R. G. No. 6 of T. T. 1 Wm. IV. Jervis N. R. 43, with which our old Rule No, 7 
 of E. T. 6 Vic, corresponded : Cam. R. 19. 
 
 (6) Now section 15 of C. L. P. Act, which see, and notes thereto. 
 
 (c) i. e. Common counts or counts of a like nature. It may, however, bo iRid 
 down as a rule that although the declaiation contain only special counts, yet 
 
pecial counts, yet 
 
 R. 20.] 
 
 TRINITY TERM, 1856. 
 
 G29 
 
 deliver full particulars of his demand under such claim, where such 
 particulars can be comprised within three folios, and where the same 
 cannot be comprised within three folios, he shall deliver such a state- 
 ment of the nature of his claim, and the amount of the sutu or balance 
 which he claims to be due, as may be comprised within that number of 
 folios; ((/) and with every plea of set-off" containin;^ ciain)s of a similar 
 nature as those in respect of which a plaintiff is required to deliver 
 particulars, the defendant shall, in like manner, deliver particulars of 
 his set-off"; (e) and to secure the delivery of particulars in all such 
 cases, it is ordered that, if any such declaration shall be delivered, or 
 if any plea of set-off" shall bo delivered without such particulars or 
 such statement as aforesaid, and a judge shall afterwards order a deli- 
 very of particulars, the plaintiff' or defendant, as the case may be, shall 
 not be allowed any costs in respect of any summons, for the purpose 
 of obtaining such order, or of the particulars he may afterwards 
 deliver, (/) and a copy of the particulars of the demand and set-off" 
 
 where tlie cause of notion is not fully and specifically disclosed in the declara- 
 tion, mid whenever it appears necessary for the furtherance of justice tluit the 
 defendant siiould have some more speeitic information, j)articulnr3 will be 
 ordered to be given and the proceedings in the mean time stayed. Tiius in an 
 action for not repairing, particulars of non-repair may be ordered : tSowtcr v. 
 Hitchmck, 6 Dowl. P. C.'724; see also Roberts v. Jiowlonds, 3 M. & \\. 54 ;5. But 
 in an action for the breach of the warranty of a horse, an order for particulars 
 of llie unsoundness was refused: Piilk v SltjjJien, 8 Dowl. 1'. C. 771. In actions 
 fur torts or wrongs unconnected with contract the practice is in general to 
 refuse particulars, but under certain circumstances even ia these actions parti- 
 ciilai's have been ordered: see Ivcs v. Calvin, 1 Cham. R. 8. Thus pai-ticulars 
 have been ordered in an action for injury to the j'crson bj' negligent driving: 
 Wkks v. Macnamara ct al, 3 11, & N. 508. 
 
 [d] Notwithstanding this rule, when plaintiff made a statement of his claim, 
 ftvcning that particulars exceeded three folios, a judge in cljambers ordered 
 further and better particulars. The rule does not debar a judge from ordering 
 sucli particulars as he sees tit: Hall v. Bowes, 2 U. C. L. J. 'MS. 
 
 (() Particulars ordered of a plea of fraud: McCnhiht O.J/", v. Slcurns, ^I L. J. 
 Ex. 4.")."). So where in an insurance case the plea simply alleged that the pro- 
 poisiil which was the basis of the ];olicy was untrue : Marxhail v. The J-Jmjieror 
 Life Assuratice Sociefi/, L. R. 1 Q. U. 3.5. A judge's order requiring tlie defen- 
 dant to deliver a particular of his set-off, and ordering "that in default thereof 
 defendant shall be precluded from giving evidence in support of such set-off on 
 the trial," was held to render the evidence inadnussible at the trial: Hwain et al 
 V. Rijljcrts, 1 Moo. «fc E. 452. AVhero partioulars are delivered but not under a 
 judge's order it is no objection to the use of them tliat tliey are headed in a dif- 
 fi-'rerit court from that in which tiie action is brought: Lewis v. JJilton, 5 Dowl. 
 P. C. 207. 
 
 (/) This rule is not compnlsorj^ upon the plainfilf. The only consequence of 
 disDbu'ying the rule is that mentioned in it, viz., tliat plaiutifl" will not bo allowed 
 C'Mtg iu I'espect of particulars afterwards delivered; Jcrvis N. U. 43, note a, A 
 
 ,. ^ >'■ 
 
 '^i M;f 'J 
 
 -! 4 
 
* 1 
 
 
 630 
 
 REOULJE aENERALES AS TO PRACTICE. [Rs. 21-23. 
 
 shall be annexed by the plaintiff's attorney to every record at the time 
 it is entered for triiil with the proper officer. {(/) 
 
 91. (/t) A summons for particulars and order thereon, nuiy be 
 obtained by a dofondant before appearance, (/) and may be made if 
 the judfzo think fit, without the production of any affidavit. (/) 
 
 23. (/••) .'V defendant shall bo allowed the same time for pleadin"', 
 after the delivery of particulars, under a judge's order, which he had 
 at the return of the summons, (/) unless otherwise provided for in 
 such order. 
 
 SECURITY FOR COSTS, (m) 
 
 jiidg-inont of non pros, cannot it seems bo signed for disobedience: Snflonv. 
 Clarke, 1 Dowl. 1\ C. 'J.'jO. Unless aw -o'der for particulars bo expressly innde 
 with a stay of proceeding's, it does not so operate : Doc d. Roberts et al v. Iloe, 
 V-'j M. it W. t')91 ; and defendant cannot, at least until the order is rcscindeii, 
 }<ij;n jnd!j;uient of non. pros : Bitrr/cus v. >Siv"jptc, 7 B, it C. 485 ; Sitllnn v. C'l'trke, 
 1 j>o\v!. 1\ C. 2.")9; Sontcrs v. Kiii[/, 1 D. & 11. 125. The court cannot compel a 
 plainlilf to deliver his partieahirs : Kirby v. Snowdm, 4 Dowl. P. C. I'Jl. 
 
 {ff) AnnexiHg the particulars to the record dispenses with the necessity r-f 
 proof of delivery : ^fnvnrthji v. Siiiilh, 8 lUng. 145. If the plaintitT annex to the 
 record ]iiirtieulars Viiryin:i; from tiiosc delivered, .and the defendant is prepared 
 at the trial to prove the delivery, plaintilf may be non-suited: Morr/any. llnms, 
 I Dowl. 1*. C. 570. Defendant if not ])repart'd with such proof may be entitled 
 to a new trial : lb. ; and plaintitf's attorney bo niauo to pay the costs of the 
 former trial : Jb. 
 
 (h) Taken from En^. R. G. No. 20 of H.T. 1853, the origin of which was En;,'. 
 R. a. No. 47 of 11. T. 2 Wm. IV : Jervis N. II. 71. 
 
 ( J) The oi'der is generally obtained before plea pleaded, but may under special 
 circumstances be obtained aft(n'wards. The order when obtained is to tlie ellVct 
 that lilaintilf's attorney or agent shall deliver to the defendant's attorney or 
 agent the particulars required, and that in tlie meantime all further proceedings 
 be stayed. 
 
 (j) The affidavit is however usually required. 
 
 (k) Taken from Eng. R. G. No. 21 of 11. T. 1853, the origin of which was Eng. 
 R. G. No. 48 of U. T. 2 Wm. IV: Jervis N. R. 72. 
 
 (l) Some of the Judges in England adopted the practice of directing the parti- 
 culars to be deliveretl within a certain time. The_y had no power to do this, for 
 the court cannot by ride or order compel the plaintiff to deliver his particulars: 
 Kirbi/ V. S.iowdoii, 4 Dowl. P. C. 191 ; Jervis ^. R. 72 note a. The only eon?e- 
 tjuence of his non-compliance with tlio order for particulars is the delay of his 
 suit : Jb. 
 
 (ni) The application for security for costs is in general one in the discretion 
 of the court or a judge: McOullock v. Robinson, 2 B. &, P. N. R. 852; FMchcT 
 V. Lm\ 5 N. &. M. 851; Rnpcr v. Thillips, 3 M. «fe R. 84; Bristowe v. Ntcd- 
 hum, 2 Dowl. N.S. 658. Security may bo ordered where the plaintilf is an 
 infant or otlier irresponsible person: Doe d. Selby v. Alston, 1 T. 1?. 491,;'fr 
 BuUer, J.: VmiWinkle v. Clviplin, 2 Ch. Cham. R. 93; Slinson v. Mnrtin, lb. 
 PC; Leislim,in v. Eistwnod, lb. 88; Lees v. Smith. 6 II. A N. 632; or where 
 the plaintilf, wliether suing in his own right or in right of another, permanently 
 reaides out of the jurisdiction of the court; Lloyd v. Davis, 1 Tyr. 538; Bra]} 
 
R. 23.] 
 
 TRINITY TJiAM, 1856. 
 
 G31 
 
 diicli was Enc^. 
 
 wliicli was Eng. 
 
 (t alv. Elite, 1 T. R. 207; Fitzgerald v. Whitmore, lb. 802; Chevalier et al y. 
 Finnis, 1 B. & B. 277 ; Chamberlain v. Chamberlain, 1 Dowl. P. C. 360 ; Baker v, 
 Uari/renvea, 6 T. R. 597 ; DeMarneffe v. Jackson, 13 I'rice 603; Baxter v. iVor- 
 yan, 6 Taunt. 379; Ilenschen v. Garvia, 2 II. Bl. 883; /bss v. Wagner, 2 Dowl. 
 p, C. 499; jSryan v. Ejector, Ir. T. R. 385 ; Drummond v. Tdlinghist, 10 Q. B. 
 740; Youdev. Youde, 3 A. <fe E. 311; Mahony v. Kelcher, 6 Ir. Jur. O.S. 235; 
 lldiiiood et ux. v. Paw/, 8 Ir. C. L. R. App. xxxiii. ; and tliis although the action 
 be ciiructod to be tried by a court of equity : Lilly v. Stafford, 3 Ir. L. R. 800 ; 
 and on such an application the court ia bound to take judicial notice of the terri- 
 torial divisions of the Trovince: McDonald v. Dicarie, 1 Ch. Cham. R. 31. If 
 plaintiff's domicile be within the jurisdiction of the court temporary absence is 
 no trround for tl<e application ; hasten v. Platv et al, 1 M. & P. 30 ; Ilenschen v. 
 Gurves, 2 H. Bl. 383 ; Ford v. Boucher, 1 Hodges, 58 ; A'elaon v. Ogle, 2 Tiinnt. 
 2ur); Jacobs v. Stevenson, 1 B. ife P. 96; Anon. 2 Chit. 152; Cole v, Beale, 
 7 Moore, 013; Boustead v. Scott, 2 Dowl. P. C. 022, n ; Frodsham v. Mgcrs, 
 4 iJowl. P. C. 280 ; LeNormand v. Prince of Capua, 6 Jur. 04 ; Foss v. Wagner, 
 2 Dowl. P. C 499. There are cases which show that n plaintiff who comes 
 within the jurisdiction of the court merely for the purpose of attending to the 
 6uit is bound to give security for costs: Oliva v. Johnson, 5 B. tSt Al. 9o8; Gill 
 V. ILid'json, 1 Prac. 11. 381 ; Gurney v. Key, 3 Dowl. P. C. 559. But the weight 
 of authority seems to bo against ordering security in such a case : Dowlitig v. 
 Harman et al, 8 Dowl. P. C. 165; Tambisco v. I'acifico, 7 Ex. 816; Hawkins v. 
 Paterson et al, S Prac. R. 253; 0' Grady v. Munro, 7 Grant, 100; Wilder v. Hop- 
 kins, 4 Prac. R. 350 ; Allain v. Chambers, 8 Ir. C. L. R. Ai)p. vii. ; Redmond v. 
 Slooney, 7 Ir. Jur. N.S. 277; where the security has been ordered and plaintiff 
 afterwards comes within the jurisdiction of the court merely to get rid of the 
 order, tlie court will decline to interfere : Marsh v. Beard, 1 Ch. Cham. R. 390 ; 
 Knott V. Fiizgibbon, 4 Ir. Jur. O.S. 192. But if the absence be shown only to 
 have been teiiipornry, or the coniing within the jurisdiction to have been with 
 an intenticn p"rtuanently to reside, relief may be granted: Harvey v. Smith, 
 1 Ch. Cham. R. 392; Woodley v. Woodley, 3 Ir. L. R. 80; Palmer v. Lord Ash- 
 brook, 4 Ir. Jur. O.S. 193; Eyre v. Baldwin, 4 Ir. C. L. R. 270. The ownership 
 of real estate or other property of a permanent character within the Province is 
 in general an answer to the application: White v. White, 1 Ch. Cham. R. 48; 
 Limerick and Watcrford Railway Co. v. Eraser, 4 Bing. 394 ; Edinburgh and 
 Leilh Railway Co. v. Dawson, 7 Dowl. P. C. 573; Kilkenny and Great Southern 
 and Wc.itern Railway Co. v. Feilden et al, 6 Ex. 81 ; Swinhourne v. Carter rt al, 
 23 L. J. Q. B. 10 ; Gait v. Spenser, 2 Ch. Cham. R. 92 ; Nagle v. Power, 1 Jone« 
 Ir. 11. 420; Sisson v. Cooper, 4 Ir. L. R. 401. Foreign corporatioiis are bound 
 to civo security for costs: Limerick and Waterford Railway Co. v. Eraser, 
 i liiiig. 394 ; Kdkenni/ and Great Southern and Western Railway Co. v. Fcdden 
 e'. al, Ex. 81 ; The North American Colonial Association of Ireland v. Archer, 
 fi Ir. L. R. 509. So plaintiffs living abroad under sentence of transporta- 
 tion : Harvey v. Jacob, 1 B. &, Al. 159; Barrett v. Power, 9 Ex. 338. But 
 till: court refused to conijiel a prisoner of war suing for wages on an English 
 ship to give security: Maria v. Hall, 2 B. & P. 236. Though peers of the 
 i'oalru and foreign ambassadors are exempt from the operation of the rule: 
 F-'irl Ferrars v. Robins, 2 Dowl. P. C. 6;;0 ; Lord Nugent v. Harcourt, 2 Dowl. 
 P.O. 578; Duke dc Montellano v. Chrii'tin, 5 M. & S. 503; Marquis of Done- 
 gnl V. Ingram, 3 Ir. Jur. O.S. 395; The Earl of Kingston v. Sheehy, Hay 
 <t Jon. Ir, R. 358; but see Lord Ahlborough v. Burton, 2 Mylno ife K. 401; 
 foreigii potentates are not so: Emperor of Brazil v. Robinson el al, 5 Dowl. P. C. 
 522 ;' King of Greece v. Wright, Dowl. P. C. 12. The mere fact of the plaintiff 
 being an officer of the service of the crown is not suflieient to exempt him from 
 p:iving security for costs: Dickenson v. Diif/ill, 1 Ch. Cham. R. 108. It must be 
 sliewn that his domicile is within the jurisdiction, and that his absouco iu the 
 
 %^i~'. 
 
682 
 
 REGULiE QENERALES AS TO PRACTICE. 
 
 [R. 23. 
 
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 servico of tho crown is compulsory: Chapptll v. Watts, 2 E. <k E. 879- Qar- 
 wood V. Bradburn, 9 Dowl. P. C. 1031 ; Whiltall v. Campbell, 5 II. & N. coi • 
 3Iiller v. Young, 1 Ir. L. Rec. O.S. 338; Dawes v. Magrath, 3 Ir. l! Ree' 
 O.S. 30; Thorpe v. Murphy, 10 Ir. L. R. 332, Perry v. Maloney, Bl. D. & o! 
 Ir. R. 257. The foreign master of a foreign ship trading to and from En"' 
 land held bound to give security: Ny lander v. Barnes, H. »t N. 509; sw 
 further : Keller v. Slatlery, Hay & Jon. Ir. R. 577 ; Kerr y. Perry, 6 Ir. Jur. 
 N.S. 239. Where plaintiff is resident within the jurisdiction of tho court, 
 mere poverty or insolvency is not of itself any ground for asking for security : 
 Gregory q. t. V. Elvidje, 2 Dowl. P. C. 259; Ross v. Jacques, 8 M. & W. 135; 
 Armiiage v. Grafton, 10 Jur. 371; Mylett v. Hucker, 5 Dowl. P. C. 647; Pent- 
 land V. Carroll, 1 Hud. & Br. Ir. R. 332; Field q. t. v. Carron, 2 II. Bl. 27; 
 Golding q. t. v. Barloiv, 1 Cowp. 24; Evans v. /2«Vy, Jones <fe Car. Ir. R. 152- 
 Arbulhnot v. Leslie, Hay <fe Jon. Ir. R. 191; McCaffrey v. Brennan, 10 Ir. C. 
 L. R. 150; Sutton v. Pardon, 1 Ir. Jur. N.S. 324; Stead y. iriVZ/ams <>< a/, 
 6 C. B. C2S. But see Eng. Stat. 30 & 31 Vic. cap. 142, s. 10, and Wood 
 el al V. Riley, L. R. 3 C. P. 26, and Kimbray v. Draper, L. R. 3 Q. B. 160, 
 decided therennder. Where the plaintiff, being insolvent, has assiu;ni'd tho 
 debt for which the action is brought, and is suing for the benefit, of the 
 assignee, security may be ordered: Goatley v. Emmott, 15 C. B. 291; Reid 
 V. deal, 1 Cham. R. 128; Coatsworth y." Wellington, 11 Ir. L. R. 54. The 
 mere fact that the plaintiff is a nominal plaintiff, unless insolvent, is not 
 sufficient: Larsscn v. The Monmouthshire Raihoay and Canal Co. 16 L. T. N.S. 
 289. Where the plaintiff is an ofTicial assignee, and as such bound to collect 
 the accounts for the benefit of the estate, security will not be required: Den- 
 ston v. Ashlon ct al, L. R. 4 Q. B. 590. If there be no assets, and the assin-nee 
 is suing for his own benefit, the rule is different: Mason v. Jtffrey, 1 Cii. C'iiam, 
 R. 879. Security not ordered in an action by two executors, one of whom was 
 insolvent and the other out of the jurisdiction: Sykes et al v. Sykes et al, L. R. 
 4 C. P. C43; see further McConnell y. Johnston, 1 East. 431; Acton v. Grant, 
 12 Ir. L. R. 338; Smith y. Sandford, 3 Ir. Jur. O.S. 253. In an action by hus- 
 band and wife for personal injury to tho wife, plaintiff, resident abroad, was 
 required to give security, although his wife was within the jurisdiction of the 
 court: Ilanmer et ux. v. Mangles, 12 M. & W. 313. It was at one time held that 
 except in ejectment there was no power to compel a plaintiff in a second suit to 
 give security to pay the costs of the former suit : Danvers v. Morgan, ] 7 C. B. 
 530; Prou-se v. Loxdalc, 3 B. ife S. 89G; Cohbetl v. Warner. L. R. 2 Q. B. 108. 
 But as tho law on the point was not free from doubt: see Iloare y. Dixon, 7 C. 
 B. 164; Foltis v. Todd, 1 Ch. Cham. R. 288; it is now expressly provided that 
 security for costs may be granted to the defendant or applicant in any suit or 
 proceeding in which it is satisfactorily made to appear to the court or a jnclije 
 that jilninlitf has brought a former suit or proceeding for tho same cause, which 
 is pending in this Province, or in any other country, or that ho has judgment, or 
 rule, or order, passed against him in such suit or proceeding, with costs, and 
 that such costs have not been paid : Stat. 29 & 30 Vic. cap. 42, s. 1 ; and appa- 
 rently the statute is not confined to cases where the action is brought against 
 the same defendant, but extends to cases where a second action for tho same 
 cause is brought against another, whose liability is identical with that of the 
 former defendant: Elliott v. Pinker ton, 4 Prac. R. 86. A plaintiff suing m forma 
 pauperis is not liable to have his suit stayed until he has paid the costs of a suit 
 at law or former suit in Chancery, touching the same subject matter, unless it 
 be shown that the proceedings are vexatious: Casey v. McColl, 3 Ch. Cham. R. 24. 
 If any suit be brought by an informer for the recovery of a penalty, the court 
 or a judge, upon affidavit made by the defendant, showing, among other things, 
 that jilaintiff is not possessed of property sufficient to answer the costs, and that 
 defendant has a good defence upon the merits, may order security for costs to be 
 
R. 23.] 
 
 TRINITY TERM, 1856. 
 
 688 
 
 23- (n) An application to compel the plaintiff to give security for 
 costs, (o) must, in ordinary cases, (p) be made before issue joined. («/) 
 
 given : Stnt. 27 & 28 Vic. cap. 36. The law was formerly otherwise : Gregory 
 q t V. Elvidge, 2 Dowl. P. C. 259 ; sec further Powell v. Reynolds, 3 Ir. Jur. 
 O.S. 59; Browne v. Redmond, 11 Ir. C. L. R. App. xxvi. 
 
 (n) Taken from Eng. R. G. No. 22 of H.T. 1853, the origin of which was R. G. 
 No. 98 of U. T. 2 AVm. IV. : Jervis N, R. 87. 
 
 (o) A defendant cannot be compelled to give security for costs : Baxter v. Mor- 
 cian, 6 Tftiiiit. 379 ; Ford v. Stock, 1 Dowl. N.S. 763 ; WeMon v. SJwehan, 12 Ir. 
 L. R. 311. But this does not apply to defendants in replevin wlicn substantially 
 plaintiffs: Selbn v. Cruchleij, 1 B. & B. 605 ; Hiskett v. Bhldle, 3 Dowl. P. C. G34 ; 
 Macnmitara v. Booth, 1 Cr. & Dix. 84 ; Corscaden v. Stewart, 1 Ir. L. R. 110 ; or to 
 defendants in interpleader issues when substantially plaintiffs: Benazech v. Bea- 
 sH', 1 C. B. 313 ; Williams v. Crossling, 4 D. <fe L. 660; Ridprny v. Jones, 29 L. 
 .1. Q. B. 97 ; or to overholding tenants in ejectment, where application is made 
 for security under section 58 of Con. Stat. U.C, cap. 27 : see Doe d. Vauqhan ct al 
 V. ThncstoHt, 2 Hud. & B. Ir, R. 117 ; Doe d. Greer el al v. Kclli,, Ih. l"l8 ; lien- 
 dmon V. JIarjhcs, 1 Ir, L. R. 231, n ; O'Brien v. Dwyer, 4 Ir. L. it, 380. 
 
 (p) Security may be ordered in proceedings by audita querela: Holmes v. 
 I'cinberton, 1 E. dc E, 369; or scire facias: Archdall v. Supple, 3 Ir. L. R, 287; 
 but see Webber v, Fitzgerald, lb. 509. 
 
 {()) The a]iplication cannot be made until after appearance : De la Prenve v. Due 
 it Iliron, 4 T. R. 697 ; Carr v. Shaw et al, 6 T. R. 496 ; O'Reilli/ v. Vanever;/ d al, 
 2 Prac. R. 184; Cole v, Bcardy, 5 Dowl. P. C. 161 ; and must generally be made 
 before issue joined: Grace v. Mcighan, Dra. Rep. 196; O'Biernc v. Gouin, 1 Cham, 
 11. Id; Mancilly v. Hays, lb. 222; and this rule applies as much to ejectment as 
 to other forms of action: Crowe et al v, McGuire, 3 U. C, L. J. 205. If after issue 
 joined the application will be allowed only in cases where defendant apjilies 
 proinjitly, after being first made aware of his right to security: Waiwerii/htx. 
 liland ct al, 2 C. M. & R. 740; Young v. Rishworth, 8 A, & E. 479, n : Doe d. 
 ■Vojjo-s ct al V. Brood, 1 Dowl, N.S. 857; Torrance v. Gross, 2 U. C, L. J, 212; 
 Morijiin V. Eillcms, 1 Prac. R. 363 ; McDadc d. 0' Connors v, Dofoe, 1 C'iiani. R. 
 18: Wood V, BclUsle ct al, lb. 130; 0' Grady v. O Connell, 2 Ir. Jur. O.S. 94; 
 Kmtt V. Fitsyibbon, 4 Ir, Jur, 0. S. 192; Hodson v. McQueen, 7 Ir. C, L. R. 288; 
 Green v. McClintock, 1 Ir. Law Rec, N.S, 153; Tucker v. Horseman, Smythe, 90. 
 The defendant does not waive his right to security by obtaining leave to plead, 
 or taking a step in the cause, provided he applies Defore issue joined: Doiclingv. 
 Harmnn, 6 M. & W. 131 ; Iletcher v. Lew, 3 A. & E. 551 ; Frii v. Wills, 3 Dowl. 
 P. C. C ; Edinburhh cD Leith R. Co. v. Dawson, 7 Dowl. P. C. 573 ; Kiyig of Grccca 
 V. MVight; 6 Dowl. P. C. 12; West v. Cooke, 1 C, B. 312; Shaw v. Whitly, 3 Ir. 
 Law Rec. N.S, 57 ; StewartY. Ballancc, 10 Ir. C. L. R. App. i. In one case security 
 was ordered even after a cause had been referred : Gcll v. Lord Cnr.-.on, 4 Ex. 813; 
 when a defendant in Chancery being entitled to security for costs, has waived or 
 lost his right against the original plaintiff, he is not in the event of the suit being 
 reversed tiiereby, prevented from obtaining security agaiii.^.t the new plaintiff, if 
 without the jurisdiction: Jackson v, Davenport, 29 Beav, 212; lliompson v. Cal- 
 Ingoji, 3 Cii. Cham. R. 15. If all the costs have been incurred, the application 
 may b(! refused, Kcmble v. Mills, 1 M. «fe G. 565, It was at one time held that 
 an affidavit of information and belief as to residence was prima facie sufficient: 
 Ihwliny v. flarman, G M. «fe W. 131 ; Morgan v. Ilellcms, 1 Prac. R. 363 ; Cardwell 
 V. Biiyncs, 23 L. T. Rep, 179; Pessenaux v. Hench. Hay <fe Jon, Ir. R. 483. But 
 rts a defendant has only under section 50 of the C. L P, Act, to make a demand to 
 be furnished with the plaintiflTs residence, the better opinion appears to be that a 
 
634 
 
 REGUL.l! QENERALES AS TO PRACTICE. 
 
 [II. 24. 
 
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 DISCONTINUANCE, (r) 
 
 24. (s) To entitle a plaintiff to discontinue after plea pleaded, it 
 aball not bo necessary to obtain the defendant's consent, (/) but the 
 rule (?t) shall contain an undertaking on the part of the pluintiff to 
 
 a po.sitivo afFidavit must be filed: Joynci v. CoUbison, 2 D. & L. 410; SniiihiH v. 
 Ilohkr, f) Dowl P. C. 274; Noad ct al. v. The Frovinckd Ins. Co. 2 Pr.'if!. 11. '^Sl! 
 The alKdavit sliould .show the staf!;o of the proceeding.^ : Huntley v. liulvir el. al 
 6 Dowl. 1*. C. 0315 ; lorrance v. Groxsi, 2 Cliam. K. 55. But see Cole, v. JJcardi/, 
 6 Dowl. I'. C. 101 ; Jones v. Jones, 2 C. ife J. 207 ; ManeilUj v. Hays, 1 Cham. 11. 222. 
 The alKdavit need not, except when the application is made in a penal action 
 under 27 <fe 28 Vic. cap. 3(5, state tlio defence or show a good defence on the 
 merits: Tkc Edinburcih and Leilh Jiaihoay Co. v. Dawson, 7 Dowl. 1'. C.57,'i; 
 JSi/re V. Sparks, 3 Ir. C. L. 11. 542 ; Anon. 4 Ir, C. L. 
 1 Ir. .lur. N.S. 333; but see O'LoHrjhUn v. Eyre,1 
 V. MitchvUi, lb. 397 ; Spencer v. Campion, 3 Ir. 
 Carter, 6 Ir Jur. O.S. 236; Knnn y. Gossen, lb 
 
 R. 16 ; Fitzpatrick v. Jhuky, 
 
 Ir. Jur. 0.8. 118; I/mionim 
 
 C. L. R. 231 ; IWd^uie v. 
 
 268; Martin v. Titmanh, 
 
 lb. 26'.); Bell v. Shannon, 7 Ir. Jur. OS. 23; Lnekwood v. Lhuhcii, Ih. 3!!; 
 Caldwell V. Lord Kilworth, 9 Ir. C. L. R. App. vii ; Dickson v. linHer, lb. 
 Apj). xiii. ; Foz v. Atkinson, 7 Ir. Jur. O S. 259; Covtney v. Glbsfiii, 6 Ir. C. 
 L. R. 130; Shcppcrd v. Beamish, 8 Ir. C. L. R. lix. In order to entitle a defen- 
 dant to a stay of proceedings in his summons, a demand of security should be 
 made before tlie a[)plication: Bailie \. Dc Bernaks, 1 B. & Al. 331 ; J/iwcnck v. 
 Smi/h, 2 Chit 150 ; Jones v. Jones, 1 Dowl. P. C. 313 ; Fountain v. Steele, 5 Dowl. 
 P. C 331 ; Kiiir/ of Greece v. Wri</ht, 6 Dowl. P. C. 12; JIunlley v. Buhnr cl al, 
 6 Dowl. P. C. 033; Fletcher v. ZVw, 3 A. «fe E. 551. It was at one time sup- 
 posed tiiat a demand was in all cases necessary before making tlio application: 
 Bass V. Clive, 3 M. »fc S. 283 ; Adams v. Broton, 1 Dowl. P. C. 273. Tiic ajipli- 
 cation, if refused for defective materials, cannot, it seems, be renewed upon 
 amended affidavits: Torrance v. Gross, 2 U. C, L. J. 212. 
 
 (>•) If plaintiff after the commencement of a suit do not desire to jirocoed 
 furllier therein from any cause whatever he may discontinue and afterwards 
 begin de novo : Pott et al. v. Jlirst, 1 D. <fe L. 910. 
 
 (s) Taken from Eng. R. G. No. 23 of II. T. 1853, the origin of which was R. G. 
 No. 100 of II. T. 2 \Vm. IV. : Jervis N. R. 89. 
 
 (t) The court has refused leave to discontinue during a stay of proocodini^s; 
 Murray v. Sdvcr, 3 D. »t L. 26. Where an administratrix was made defendant 
 in an action commenced against the intestate by a suggestion under t!ie 13Sth 
 eection of Eng. C. L. P. Act, 1852 (section 134 of ours), and pleaded to tlie sug- 
 gestion, tlie court refused her leave to discontinue unless she paid all the cost.s 
 of the cause: Benge v. Swaine, 15 C. B. 784. And where the plaintiff tool; out 
 a judge's order to discontinue " on payment of costs," and afterwards acted upon 
 the order by attending taxation under it, the court refused to allow him to .aban- 
 don it: lb. Where plaintiff discontinues as to issues of fact after he lins suc- 
 ceeded upon issues at law, he is entitled to the costs of the demurrer and 
 defendant to the costs of the discontinuance: Elwoodv. Bullock, 6 Q. B. 411; 
 see also The Mayor .j-c. of Macclesfield v. Gee, 13 M. & W. 470. 
 
 (u) It would seem that the rule, if obtained before verdict or argument of a 
 demurrer, may be had at side bar: see Benton et al v. Polkinghorne, 10 M. & W'. 
 8. In other cases a motion is necessary. The service of the rule is not of itself a 
 stay of proceedings : Beeton v. Jupp, 15 M. it W. 149. Until payment of costs 
 there is no discontinuance: Edgington v. Proudman, 1 Dowl. P. C, 152. 
 
R. 25.] 
 
 TRINITY TERM) 1865. 
 
 035 
 
 hicli wa3 R. G. 
 
 pay the costs, («) and a consent, that if they arc not paid within four 
 days after taxation, (w) the defendant shall be at liberty to sign judg- 
 ment of non pros, (x) 
 
 STAYIXO rKOCKHDrNOS. (;/) 
 
 25. (-) In any action against an acceptor of a bill of exchange, or 
 the maker of a promissory note, the defendant shall be at liberty to 
 stay proceedings, on payment of the debt and costs in thiit action 
 only. («) 
 
 (r) Tlie dofondants in an action of replevin Iiavinnj obtained a verdict, a rule 
 for a new trial was gjranted on tiie i^round tlmt certain evidence liail lieen inipro- 
 perlv admitted. This rule was made absolute. The jdaintift" gave a fresh notice 
 of trial, but afterwards gave notice of discontinuance, and the cause was not 
 a^ain tried. On the taxation of costs, tiio costs of searches for documentary evi- 
 dence (not including the evidence objected to), wiiich had been made use of on 
 tiie first trial, were allowed to the defendants, as well as the charge for drawing* 
 snd cojij-ing old briefs. Held, that as these matters would havi^ been nvailablo 
 iftiic cause had been again tried, such costs were properly allowed: IJaiiiel v. 
 Wilkin et al, 8 Ex. 1.50. The rule would be diHerent if the discontinuance were 
 after notice of countermand: Heater v. Jlall, IJurnes, 807; see further, as to 
 apportionment of costs after discontinuance: Due d. I'o.itlelhwaile v. Nenh, 
 6 Dowl. P. C. ir)6; kivis v. Ilatlon, 8 Dowl. 1'. C. 164. If it be made clearly 
 to njii)ear that tlio discontinuance was rendered necessary by the conduct of 
 defendant, the court may relieve plaintifT from paj'ment of costs ; Fociif/jrn et ai 
 V. Chanter el al, 6 Scott, 300; Ames et al v. Ra<j(i et al, 2 Dowl. P. C. ;J5; J/er- 
 namann et al v. Barber, 1.5 C. B. 774. Where the first trial has been set aside 
 witliout costs, a plaintiff discontinuing will not have to pay the eo.-.ts of the 
 first trial: sec Jollife v. Mundy, 4 M.^tt W. 502. 
 
 (w) The taxed costs must be actually paid in order to comply' witli the con- 
 ditions of the rule: Edgington v. I'roudman, 1 Dowl. 1*. C 162. 
 
 (x) The plaintiff is not, it appears, liable to attachment for non-payment of 
 the costs: Stokes v. Woodeson, 7 T. 11. 6. I)efendant's remedy is that mentioned 
 in tlie rule, viz. judgment of non pros, IJeforo tliis rule, where tlie discontiau- 
 ance was before plea, defendant's only course was to proceed in the action: 
 W'hUmorc v. Williams, 6 T. R. 705. Where a defendant moved for judgment as 
 in case of a nonsuit, which was a special remedy given by statute under peculiar 
 ciroiuiistances only, his rule was dir^eharged: Cot per \. Jlolloivaij, 1 Ilodg. 76; 
 and where the plaintiff, instead of paying the costs, took the cause to trial and 
 obtained a verdict, the court refused' to set it oside: Edgington \. J'roadman, 
 1 Dowl. P. C. 152. 
 
 0/) A ride to stay proceedings operates, not merely from the time it is served 
 but from the time it is made: Patterson v. Altrill el al, 4 U. C. Q. li. 395. 
 When a rule was made in term that on payment of a certain sum and costs fur- 
 ther proceedings should be stayed on tlie verdict given in tiie cause at the 
 vssizes preceding the term, and "the rule, with an ai(])ointment to tax costs, •^■as 
 served on the plaintiff's attorney during tiic second Friday in term, it was held 
 that tlie rule did not stay proceedings till the money was paid or tendered: 
 For Iter v. Hodgson, 6 U. C. Q. B. 16. 
 
 (i) Taken from Eng. R. G. No. 24 of II. T. 1853, the origin of which was Eng. 
 11. G. of T. T. 1 Vic: Jervis N. R. 154. 
 
 (a) Tliis was formerly the practice wheu the action was brought against any 
 
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 G36 
 
 HEQVLJE QENERALES A8 TO PRACTICE. 
 
 [R. 26. 
 
 COGNOVIT; WAUUAXT OP ATTORXEY; JUDGE'S ORDER FOR JUDGMKNT. ((,) 
 
 20. («) No warrant of attorney to confess judgment (d) in any 
 action (e) or cognovit actionem, given by any person, (/) after the 
 first day of next Michaelmas terra, (^7) shall be of any force, (/<) 
 unless there shall bo present some attorney (i) on behalf of such 
 
 party to a bill or note other than the acceptor or maker: Smith v. Wood- 
 cock, 4 T. 11. (591 ; Vaiighan v. Harris, 3 M, & \V. 542. Where the holilor of a 
 bill brought an action a^jainst the acceptor, nnd at the same time cointin'ncecl 
 proceeilin;j;3 nj^ainst him in bankruptcy, nnd the action was afterwards stayed on 
 payment of tlio debt nnd costs, held not to include the costs in bankruptcy: 
 Cows V. Taylor, 18 Jur. 903. 
 
 (6) Neitiicr a cojrnovit nor warrant of attorney can bo given by nn infant: 
 Oliver y. Woodrnffe, 7 Dowl. P.O. 166; nor a married woman: Faithomcv. 
 Blaqnire, (i M. & S. 73. No action will lie on a warrant of attorney : Shcrborn 
 V. Lord II itidinfi tower, 13 C. B. N.S. 742. Nor in <i^eneral on a judge's order: 
 Hookpaylon v. liussell, 10 Ex. 24; Thames Iron Works Co. v. I'alcnl Derrick Co.: 
 
 1 John. & II. 93. Unless there be in the order somethinij in the shape of nn 
 agreement or undertaking on the part of the defendant ; Lievcsley v. Giliaore, 
 L. R 1 C. 1'. f 7U. 
 
 (c) The first part of this rule is taken from Eng. Stat. 1 ife 2 Vic, cap. 110, 
 9. 9. It is a substitute for our old Rule of E. T. 9'Geo. IV. : Cam. R. r>. The 
 object of the Eng. Stat, of Vietoria, as recited in the preamble, is " that provi- 
 sion should be made giving to every person executing a warrant of attorney to 
 confess judgment or eor/tiovit actionem due information of tiie nature and elfcet 
 thereof." The enactment has been held to apply to warrants and co^'novits 
 wherever executed, if attempted to be enforced in England: Uurin v. Tremiiion, 
 
 2 D. & L. 743. 
 
 ((/) A writ of summons having been issued but not served on the defendant, 
 who signed a document intitled in the cause and prepared by plaintiff's attorney, 
 whereby the defendant consented to a judge's order for payment of the debt and 
 costs, with liberty to the plaintitFs attorney to enter an appearance tor liim 
 and sign judgment and issue execution, no attorney attended on bclialf of defen- 
 dant when this consent was given; a judge's order having afterwards been 
 obtained on this consent, iinal judgment signed, and execution issued, it was 
 held that the consent did not rei]uire the presence of an attorney : Thome ei 
 al V. Mai, 2 Q. B. 726 ; seo also Bray v. Manson, 8 il. &. W. 668. and R. 0. 
 pr. 125. 
 
 (c) In any action, &(i. The English statute reads "in any personal actio 1,' 
 &c. • in consequence of which it was held not to apply to a cognovit in eject 
 mcnt: Doe d. Kiiiffstonv. Kingston, 1 Dowl. N.S. 263; see further Doe d. Ikes 
 Howell, 12 A, & E. 696. 
 
 (/) The rule does not apply when defendant is himself nn attorney; Doimes 
 V. Garbutt, 2 Dowl. N.S. 939 ; Chipp v. Harris, 5 M. «fc W. 430. 
 
 {g) M. T. 1856. 
 
 (/t) i- e. Shall be null and void. 
 
 (t) An attorney though uncertificated may attest : Holgate v. Slight, 2 L. M. 
 «fc P. 662; see further Frice v. Garter et al, 7 Q. B. 838 ; fox v. Cauwrn, 6 Dowl. 
 P. C. 625 ; and though not it seems an attorney of the court in which the judg- 
 ment is to be signed: Vilmott v. Barry, Barnes, 44. An attorney's clerk cannot 
 attest : Barnes v. Ward, lb. 42; Paul y. Gleavcr, 2 Taunt. 360. Nor a person not 
 
 
attorney. Downes 
 
 K. 2G.] 
 
 TRINITY TERM, 1856. 
 
 637 
 
 person expressly named by him, and attending at his rcf]ucst, (J) 
 to inform him oF the nature and effect of such warrant or cog- 
 novit, before the same is executed, (k) which attorney sliall sub. 
 
 an attorney, thouujli hmia fide believed to bo one ; Wallace v. Brocklcij, T) Dowl. 
 r. C. C'J5. But when tleferulant mala fide represented n person to be an attorney 
 who was not, tlie court refused to sot aside the judgment : Cox v. Canonu, Dowl. 
 P. C. 62.') ; Jeijcs v. Booth, 1 B. & l\ 97. 
 
 (J) Tiioro must be a separato attorney other than the pbiintiffs, employed 
 by defendant: JfaHOH v. Kiddle, 5 M. it W. 51:5; lUcc v. LInstcd, 7 Dowl. 
 r. C. 158; Durrant v. Blurton el al, 9 Dowl, P. C. IdIG; nUhou;;h defendant 
 consent tliat J)luintitr8 attorney shall act for him, defendant: Ihtlson v. Hut- 
 mn, 7 T. R. 7; Mamn v. Riddk, 8 Dowl. P. C. 207; Pnior ct nl v. Sirnhif, 
 2 1). «fe L. r,7; Sanderson v. Wesllct/ el al, ti M. & W. 1)8; Joel v. Itieker, 
 
 5 D. cw L. 1; Cooper v. Grant, 21 L. J. C. P. 197; Hirst v. Hannah, 17 Q. 
 
 B. 383. Tho attorney must in general attend at the request of defendant, 
 or there must be facts from which an exercise of defendant's discretion can be 
 inferred: G ripper el al v. Bristow, 6 M. & W. 807 ; Jiiee v. Lin.iicd, 7 Dowl. P. 
 
 C. 15;i. If a defendant finding an attorney present adopt him as his attorney, 
 this is sufKeient: Walton v. Chandler, 2 D. »fe L. fei>2; Ilalc v. Dale, 8 Dowl. 
 P. C. 599; 7'ai/lor et al v. Nicholh, 6 M. it W. 91 ; Lcnimon v. Bwr, 2 L. M. * 
 P. 557; Haley. Hale, 8 Dowl. P. C. 599; Walton v. Chandler, 2 D- & L. 802. 
 But whore a defendant in custody having airreed to give a cognovit sent for his 
 attorney to attest it, but the attorney being from home his clerk procured 
 another attorney who attended, tho court was of opinion that this attorney was 
 not named by defendant and did not attend upon his request : Mshcr v. Xicholan, 
 2 Dowl. P. C 251. So where plaintiffs attorney proposed another attorney 
 wliom he brought with him, and tho defendant acquiesced, but tho attorney so 
 introduced was not known to defendant or sent for by him, this was holdon 
 insufficient: Walker -v. Gardner, 4 B. & Ad. 371; Barnes v- Hendrci/, 7 Dowl. 
 P. C. 747. So where a warrant of attorney was attested by an attorney intro- 
 duced by the plaintiff, and who had on a former occasion acted for tlic plaintiff 
 and who afterwards acted as plaintiff's attorney on entering up tiie judgment ; 
 the court set it aside: Cooper v. Grant, 12 C. B 154. Where, however, the 
 defendant's attorney being from home, the plaintiff's attorney suggested to him 
 anotlier attorney, and defendant went to his office and said he wislied him to 
 attest the execution as his attorney, this was holden to be an express naming 
 within the meaning of the statute : Bllffh et al v. Brewer, 3 Dowl. P. C. 2(\(). Too 
 niucli reliance must not be placed on the earlier cases, such as Fishery. Ntcholat:, 
 2 Dowl. P.O. 251; Walker \. Gardner, 4 B. «fc Ad. 471; Barnes v. Pendrey, 
 1 Dowl. P. C. 747. These cases appear to hold that unless there bo an express 
 nomination originating with the party the attestation is insuflicient. The later 
 cases relax the rule, and decide that if an attorney be present, no matter how 
 procured, if defendant adopt him as his attorney the attestation will be suffi- 
 cient: see Taylor et al v. Nieholls, 6 M. &, W. 91 ; Joei v. Dicker, 5 D. «t L. 1 ; 
 Walton V. Chandler, 2 D. <fe L. 802 ; Olii^er v. Woodrofe, 4 M <fc "W. 650; Bligh 
 etalv. Brewer, 3 Dowl. P. C. 266; Levinson v. Syer, 2 L. M. & P. 557 ; Case T. 
 Benson et al, 3 UC L J. 132. An express adoption by defendant of the attorney 
 present not being plaintiff's attorney must be clearly made to appear : G ripper 
 el al v. Bristow, 6 M. & W. 807. 
 
 (k) The cognovit or warrant need riOt be read over to defendant if he be 
 informed of its nature and effect: Olivers. Woodroffe, 4 M. <fe W. 650. It is 
 not necessary that the informotion should be given in private : Joel v. Dicker. 
 
 6 D. & L. 1. If defendant be very illiterate the safer course is to read over the 
 instrument : see Taylor v. Parkinson, 2 H. Bl. 383 ; James v. Harris, 6 Dowl. P. C. 
 
 
 imm^-::^^^ 
 
 
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 . .v%. 
 
 f#-JI'l 
 
038 
 
 REQULiE QENERALES AS TO PRACTICE, 
 
 [R. 20, 
 
 HI i 
 
 siA 
 
 ■| 
 
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 x 
 
 acribo (/) hi.s name as a witness to the duo execution thereof, (m) and 
 thereby declare himself to bo attorney for the person esccutin" tbe 
 same, («) and state that he subscribes as such attorney, (o) [and in the 
 affidavit of execution, the attendance of such attorney, and the fact 
 of his beinj; a s'ubscribing witness, shall be plainly stated, which 
 affidavit and the warrant of attorney or cognovit, shall be fllcd at the 
 time of entering judgment thereon.] (/>) 
 
 184, Tlie no;,'loct of nn attorney expressly chosen by (IcfenJant to cxiilain the 
 instrument to liim will not vitinte it: JJ<ii;/h v. Front el al, 7 ])(nvl, 1'. C 74,3 • 
 Umc v. JiniKon el al, 3 U.C. L. J. 132 ; unless there be fraud or collusion • Tiudor 
 cl al V. Xirliolh, 6 M. it W. Dl 
 
 (l) Subscrii)tion and not mere attestation 13 required : Hnilci/ cl al v, IkUamu 
 I'i al, 9 ])()\vl. P. C. 507. Therefore wiiere 11 warrant of attorney was ])i'oj)trly 
 utte.stod, nil 1 waa afterwards ullered in a material particular by consent, and 
 the defendant retraced his signature with a dry pen and re-delivered the instru- 
 ment, and the attorney wlio was present wrote his initials opposite to the alter- 
 ation and drew a dry pen over the alteration and over each letter of his own 
 signature, held insufiicient : Jl>. 
 
 (?/i) In the affidavit of execution the attendance of such attorney and the fact 
 of his being a subscribing witness must be plainly stated : sue end of Rule here 
 annotated. 
 
 (n) The word " thereby" requires that the declaration fihoukl be made in 
 writing in the attestation: Poole v. Jlobbs, 8 Dowl. 1'. 0, 113 ; Potto' v. A'ichol- 
 son, 8 iM. it W. 294. 
 
 (0) Tlie requirements of the rule must bo expressly stated in the atte.stalion 
 clause : llilbert v. Barton, 2 Dowl. N.S. 434 ; or appear by necessary imjillcation ; 
 Elkinyton v. Holland, 1 Dowl. N. S. 643 ; Lewis v. Lord Kensington, 6 D. ife L. 
 637; Phillips v. Gibbs, 16 M. ife W. 208; Pocock v. Pickering et al, 18 Q. B. 780. 
 An attestation has been held sufficient, though it did not expressly state that 
 the attorney was appointed by the defendant: Oliver v. Woodriijfe^ i l)o\v\.V. 
 C, 166 ; or attended at his request and was named by him : Gay v. Hall, 5 D. (!: 
 L. 422 ; and did not expressly declare him to subscribe as defendant's attorney: 
 Knight V. Hastg, 12 L. J. Q. B. 293 ; Phillips v, Gibbs, 1 M. tfe W. 208 ; Holt el al 
 V. Kershaw, 5 D. <t L. 419. An attestation, however, not showing expressly that 
 the party attending was defendant's attorney and attending as sucii, has been 
 held insufficient : Hibbert v. Barton, 2 Dowl. N.S. 434 ; Everard et al v. Popt'i'ton 
 et al, 5 Q. B. 181, Had the courts given a form of attestation, muc' ilmih 
 trouble would have been saved. The following is in gener use d has bieii 
 held sufficient — "Signed by the above named C. D, in „.e. And I 
 
 declare myself to be attorney for the said C. D., and that 00 my name a- 
 
 such his attorney :" see Gay v. Hall, 18 L. J. Q. 15. 12 ; 1 d et al v. Thomi, 
 
 son, 11 M, cfe W. 40. It is not essential that the attesting a ney sign 'ds name 
 at the foot of the atto-'ting clause: Lewis v. Lord Kensington, 2 C. . 4*>3. If 
 the attestation be insufficient, a second may be added : Ledgard et v v. Thomp- 
 son, 11 M. t& W. 40. The provision requiring attestation, <kc., is for the benefit 
 of defendant only. A third party cannot object to a judgment that it is entered 
 up on a cognovit or warrant not formally executed : see Chipp y. Harris, 5 M. & 
 W. 430 ; Cocks et al v. Edwards, 2 Dowl. N. S. 55 ; Lewis v. Lord TankervilU, 
 1 1 M. & W, 109 ; Charlesworth v. Ellis, 7 Q. B. 678 ; Price v. Carter et al, 1 Q. B. 
 888; Hume v. Lord Wellesley, 8 Q. B. 521. 
 
 (/>) The latter provision of this rule, placed in brackets, is new, and not to be 
 found in the English Statute from which the rule is taken. 
 
', and not to be 
 
 Us. 27, 28.] 
 
 TRINITY T2RM, 1850. 
 
 G30 
 
 27. (7) Leave (?•) to enter up ju(];»ment upon any co/»novit or war. 
 rftnt of attorney (») above one and under ten yoars old, is to be obtained 
 by Older of a judge made ex parte {/) and if ten years old or more 
 upon a sunjnion«, to show cause. («) 
 
 2S. (v) Every person who shall prepare any cognovit or warrant of 
 attorney to confess judgment, which is to be subject to any defeasance, 
 shall cause such defeasance to bo written on the same paper or parch- 
 ment on which the cognovit or warrant is written, («') or cause a 
 
 (7) Taken from Eng. II. G. No. 2fi of 11. T. 1853, tlic ori<jin of wliich was Eng. 
 R. a. No. 7:5 of H. T. -i Win. IV. : Jervis N. U. 79. 
 
 (r) Tlic npplication for lenvo must bo made to a jiulijo in clmmbcrs and not 
 to the court : ILtndley v. Roberta, 17 Jur. IID. Tlio dcfoasance may, it ajiiicars, 
 hi! so iii'c[)ared as to di.spcnso with the neepssity of making the application: 
 ^hnriin v. Murshall (' al, 1 D. A L. (589. It is, however, irregular to .sign judg- 
 ment witliout leave where leuvo is necessary: Joties v. Jones, 1 D. dt U. 5.'58 ; 
 but no one besides the defendant or his representative can take advantage of tlio 
 objection. 
 
 (») Leave is required to enter up judgment against husband and wife on a 
 warrant given by tlie wife dum sola : Uubhard v. Ilaggart et ux, 6 Jur. 950. Filling 
 iu the date of a warrant when it is loft in blank after e.xecution is not sucli an 
 alteration as avoids the in.strument: Keane v. Smallbone, 17 C. B. 179. Tlio 
 judgment must be entered on the original instrument and not on a copy : Anon. 
 2 Jur. 914 ; Jacobs v. Neville, 8 Dowl. P. C. 125 ; but leave to sign judgment on 
 a copy may under sj)ecial circumstances bo obtained : Doe d, Beaumont v. Beau- 
 mont^ '1 Dowl. N.S. 972. 
 
 (/) This order may bo obtained thougli the defendont bo insane; Piggot v. 
 KiUkk, 4 Dowl. P. C. 287; and under special circumstances, notwithstanding 
 this rule, the judge may retuse an ex parte order tliough the instrument bo not 
 ten years old: Lushington v. Waller, 1 II. Bl. 94; Edwards y. Holiday et at, 
 a Dowl. P. C. 1023. 
 
 («) Where the instrument is more than ten years old the summons to show 
 cause ciinnot bo dispensed with, though defendant shortly before application 
 acknowledge tlio debt to be due: Nicholas et al v. Merit, 9 Dowl. P. C. 101 ; or is 
 resident abroad: Fletcher v. Everard, IS L. J. Q. B. 44. In cases wliere defen- 
 dant keeps out of the way to avoid service of tlio summons, service may be 
 dispensed with: Croft v. Lord Egmont, 8 Dowl. P. C. 95; Wortham v. tuck, 
 9 Dowl, P. C. 835. It should be shown that tlie defendant is olive : Stocks ct al 
 V. Willes. 5 Dowl. P.C. 221. If abroad greater latitude maybe allowed : Johnson 
 V. Fn;, lb. 215. If defendant show a bar prima facie valid as a certificate of 
 discharge by bankruptcy it is for tlie plaintiff to shew sufficient ground for 
 avoiding or defeating the same: Sherburne v. Lord Hunting tower, 11 W. R. 
 148 ; see further note 6 to section 236, C. L. P. Act. 
 
 ' ^ Taken from Eng. R. G. No. 27 of II. T. 1853, the origin of which was 
 E , llule of Q. B. <fe C. P. 42 Geo. III. 
 
 («•) If an attorney neglect to comply with this rule the omission will not avoid 
 the instrument, but only render the attorney liable to punishment on motion for 
 neglect of duty imposed by the court : Shaw v. Evans, 14 East. 576 ; Partridge 
 V. F-aser et al, 1 Taunt. 807 ; see further Sansom et al v. Goode, 2 B. & Al. 568 ; 
 
 
 i fiiii 
 
 f 4 
 
 
640 
 
 REQUL^ GENERALES AS TO PRACTICE. 
 
 [R. 29. 
 
 memorandum in 
 
 writing 
 
 to be made on such 
 
 cognovit or 
 
 warrant 
 
 
 
 m ' '/' 
 
 
 
 '*mSi 
 
 ih It- 
 
 containing the substance or effect of such defeasance. 
 
 (X) 
 
 (y)EVlDKXCE; ADMISSION AND INSPECTION OF DOCUMENTS; SUBP(£NA To 
 rnCbUCE UECOUUS; DEPOSITIONS ON INTEUUOGATOUIES. 
 
 20. (;.) The form of notice to admit documents referred to in the 
 Common Law Procedure Act, 1856, section 165, (a) may be as fol- 
 lows : (1) 
 
 ^ A. B., Plaint:/, 
 
 In the Q. B. or 0. P. K v. 
 
 ) C. D., Defendant 
 
 Take notice that the plaintiff (or defendant) in this cause proposes 
 to adduce in evidence the several document^ hereunder spccified,?(cj 
 and that the same may be inspectefl by the plaintiff (or defendant, Lis 
 
 attorney or agent, at , on , between the hours of . 
 
 And the defendant (or plaintifiF) is hereby required, within forty-eight 
 hours from the last mentioned hour, (e) to admit that such of the 
 documents as are specified to be originals were respectively written, 
 signed, or executed, as they purport respectively to have been, (/) that 
 such as are specified as copies are true copies, and such copies as are 
 stated to have been served, sent, or delivered, were so sent, served, or 
 delivered respectively, saving all just exceptions to the admissibility of 
 all such documents as evidence in this cause. (7) Dated, &c. 
 
 Barber v. Barber et al, 3 Taunt. 465. Part of the defeasance may bo written on 
 a separate paper annexed: Burdekin v. Potter et al, 1 Dowl. N.S. 131. 
 
 {x) Where a defeasance stated that the instrun: nt was eivcn to secure 11 
 specific sum, and the plaintiff nevertheless issued execution r)r a furtliur sum, 
 the court at the instance of the assignees of the defendant who became a bank- 
 rupt after the execution was executed, ordered the plaintiff to refund such last 
 mentioned sum, although the plaintiff swore that it was understood between him 
 and the defendant that the instrument was given as a security for it : Bell v. 
 Tidd, 9 Dowl. P. C. 949 
 
 'y) See C. L. P. Act, section 198, and notes thereto. 
 
 (?) Taken from Eng.-R. G, No. 29 of H. T. 1853, the origin of which was Enf 
 R. G. No 20 of H. T. 4 \Vm. IV. : Jervis N. R. 110; with which our rule ^■o 
 28 ol E. T. 5 Vic. corresponded: Cam. R. 32. 
 
 (a) Section 1 98 of present C. L P. Act. 
 
 (6) It is apprehended that some latitude may be allowed when circumstance? 
 render a departure from this form necessary : Butler v. Chapman, 8 M. & W. 
 .S93, per Parke, B. 
 
 (c) Documents, &o. See note / to section 198, C L. P. Act. 
 
 («) The limit as to time here made makes good the omission pointed out in 
 note n to section 198, C L. P. Act. 
 (/) SeftiVeeman v. Steggall in note m to section 198, C. L. P. Act. 
 {g) Saving all jutt exceptioni, &c. See note m to section 198, C. L. P. Act. 
 
■when drcumgtancet 
 Ihapman, 8 M. <& W. 
 
 liasion pointed out in 
 
 R. 30.] 
 
 TRINITY TERM, 1856. 
 G. H. 
 
 Altornei/ or agent for {j^lainti^ or defendant'). 
 Uere describe the documents, the manner of doing which may be as 
 
 follows : — 
 
 ORIGINALS. 
 
 DESCRIPTION OF DOCIHIENTS. 
 
 DATE. 
 
 Deed of Covenant between A. B. and C. D. of the first 
 part, arid E. F. of the second part 
 
 Indenture of Lease from A. B. to C. D 
 
 Indunture of Release between A. B., <fec., of the first part, 
 C. D. , <tc., of the second part, &a 
 
 Let tor, defendant to plaintiff 
 
 I'olicy of Insurance on 
 
 3Ieniorandum of Agreement between C. D. and E. F. . . . 
 
 Bill of Excliange for £100, at three months, drawn by A. 
 B., on and accepted by C. D., endorsed by E. F. & G. II. 
 
 COPIES. 
 
 DESCEIPTION OF BOCUMEUTS. 
 
 Register of Br.ptism of A. B., in 
 tlie Parish of 
 
 Luttur, plaintiff to defendant , 
 Notice to produce papers . . . ■ 
 
 DATE. 
 
 Record of Judgment of the Court 
 of (iiieen's Bench, in an action 
 
 (I. O' V. J* iN*. ...... ....... 
 
 Letters Patent of KingGeorgelll 
 
 1st January, 1808. 
 let February, 1838 
 
 Ist Mar li, 1856. 
 
 ! Trinity Term, 
 15 Victoria. 
 
 1st January, 1800. 
 
 ORIGINAL OR DLTI.ICATB 
 SEttVKD, .SENT, OR l>KLIVERaD, 
 
 w}iEx, now, AND iiy wnoM. 
 
 1st January, 1856 
 1st February, 18oG 
 
 2nd February, 1856 
 3rd Febr-iary, 1856, 
 1st January, 1856 
 2nd January, 1856 
 
 3rd January, 1856 
 
 ( Sent by post, 2nd Febru- 
 \ &vy, 18:38. 
 
 ( Served 2nd March, 1856, 
 \ on defendant's attorney, 
 ( by E. F. of . 
 
 30- (/i) In all cases of trials, assessments, or inquisitions of any 
 kind, (t) either party may call upon the other party by notice, to 
 admit documents in the manner provided by and subject to the provi- 
 
 {h) Taken from Eng. R. G. No. 30 of H. T. 1853. This rule is substantially 
 the isauie as section 117 of Eng. C. L. P. Act, 185? with which section 198 of 
 our C. L. P. Act corresponds. If there be any difference between the rule and 
 the statute, it is that the rule, which extends to " inquisitions of any kind" has 
 a more extensive operation than the statute. 
 
 (t) Or i'nmusitioru of any kind, d'c. The extreme generality of these words 
 may bt lield sufficient to embrace investigations before arbitrators or otficera of 
 the courts, or other persons deputed by the courta to hold inquieitionB. 
 41 
 
 
642 
 
 REQlL^i: GENERALES AS TO PRACTICE. [Rs. 31 32. 
 
 I' I 
 
 .sions of tlio Comraon Law Procedure Act, 1856, (/■;) and in case of 
 the refusal or ncgltct to admit, (I) after such notice given, (m) tiie 
 costs of proving the documents shall be paid by the party so neglecting 
 or refusing, (n) whatever the result of the trial may be, (o) unless, at 
 the trial, assessment, or inquisition, the Judge or presiding Officer shall 
 certify that the refusal to admit was reasonable, (^) and no costs of 
 proving any document shall bo allowed, unless such notice be given, (q) 
 except in cases where the omission to give the notice is, in the opiiiioa 
 of the taxing officer, a saving of expense, (r) 
 
 81. («) No subpoena for the production of an original record, (f) [or 
 of an original memorial from any registry office,] («) shall be issued, 
 unless a rule of court, or the order of a judge, shall be produced to the 
 officer issuing the same, and filed with him, (v) and unless the writ 
 shall be made conformable to the description of the document men- 
 tioned in such rule or order. 
 
 33. (jo) All depositions of witnesses taken under the order of a 
 
 {k} See section 198 C. L. P. Act. 
 
 {I) The admission may be signed by the attorney or his managing clvrk; 
 .see Taylor v. WUlatis, 2 B. & Ad. 845. 
 
 (»i) Time, forty-eight hours : see preceding rule. 
 
 ()i) See note o to section 108, C. L. P. Act. 
 (o) See note p to section 198, C. L. P. Act. 
 (p) See note q to section 108, C. L. P. Act. 
 ((/) See note iS to section 198, C. L. P. Act. 
 (r) See note r to section 198, C. L. P. Act. 
 
 (.-i) Token from Eng. 11. G. No. 32 of II. T. 1853, the origin of which is Rule 
 of Eng. Q. B., 11. T. 11 Vic. (11 Q. B. 876.) 
 
 (t) A document in the Crown Lands department or any other public depart- 
 ment ia not an original record within the meaning of this rule : McOuirev. 8iicath, 
 2 U. C. L. J. 181. An ex parte order was granted under this rule for a subi.cna 
 to issue to the registrar of the Surrogate Court of the United Counties of Vork 
 and Feel for the production of the original last will and testament of A. B. 
 dei'oiised : Sluiiikn v. Smith, 2 U. 0. L. J. 233. The affidavit upon which the 
 order is made is fully set forth in the report of the case; 76. 
 
 (ft) The words in brackets are not to be found in the corresponding En:j,lisli 
 rule. 
 
 (w) Shall be insued, tt'c, unless a rule of couii, dbe., shall be produced, it'c It 
 may be that these words are only directory, and that o. subpccna, though issued in 
 c jntriivention of the rtde, would, when issued, be prima facie good. At all events, 
 t'lcre is nothing to say that a writ so issued shall be void. It may bo irregular; 
 but if so nuist bo obeyed until moved against and set aside upon the ground of 
 irregularity. 
 
 (ic) Taken with modifications from Eng. R G. No. 33 of 11. T. 1853. 
 
f which is Rule 
 
 Rs. 33-35.] 
 
 TRINITY TERM, 1856. 
 
 643 
 
 judge, rule of court or commission, shall be returned to, and filed in, 
 the office of the clerk of the Crown and Pleas of the court in which 
 the action or proceeding is pending. 
 
 ISSUE BOOKS, (i) 
 
 33. The Common Law Procedure Act, 1856, having dispensed 
 with the sealing and passing of the Nisi Prius Record, (2) the practice 
 ia England as to making up and delivering paper books and issue 
 books is to be followed in future, (a) 
 
 TRIAL ; TRIAL BY PROVISO ; ASSESSMENT ; NOTICE OF TRIAL ; (&) &c. 
 
 34. (c) The expression " Short notice of trial," or " Short notice 
 of assessment," (d) shall in all cases be taken to mean four days' 
 notice, (e) 
 
 35. (/) On a replication or other pleading denying the existence of 
 a record pleaded by the defendant, a rule for the defendant to produce 
 the record shall not be necessary or used, (^) and instead thereof a 
 
 (x) The is3ue book is a transcript of the pleadings with the dates of pleading 
 and the order in which pleaded: see note v to section 203, C. L. P. Act; con- 
 cluding ordinarily with the words " Therefore lot a jury," «fec. : see No. 1 in 
 Schedule of Forms to these rules. An issue book served in a case where there 
 were issues in fact and in law, and the latter had been decided in plaintiti's 
 favor, contained no notice of the judgment and the usual venire only. The iilain- 
 tiffs, under a judge's order, amended on payment of costs by inserting a sugges- 
 tiou of the decision on demurrer, and the usual stay of entry of judgment until 
 the trial of the issues in fact ; but it concluded with a venire only to try the 
 issues. On motion to set aside a verdict taken for irregularity, it was held that 
 the issue book having been amended before trial, and the nisi prius record being 
 correct, no objection would lie on that ground, and that the defect in the venire 
 in the amended issue was not fatal : Wdth et al v. O'Brien et al, 29 U. C. Q. B. 
 474 ; see further note v to section 203, C. L. P. Act. 
 
 (z) The record need not be sealed, but must now bo signed and passed: 
 section 203, C. L. P. Act. 
 
 (u) See note v to section 203, C. L. P. Act. 
 
 [h) See notes to section 201 of C. L. P. Act. 
 
 (c) Taken from Eng. R. G. No. 35 of PI. T. 1853, the origin of wliich was Eng. 
 R. G. No. 58 of H. T. 2 Wm. IV. : Jervis N. R. T4. 
 
 {d) The defendant is not bound to accept short notice of trial or of flsscssment 
 unless under terms to do so by order of the court or a judge: see note « to 
 section 202 of C. L. P. Act. 
 
 [t) It seems that a defendant cannot bo compelled to take short notice of trial 
 if the pleadings be incomploto : Lamon v. JioUnson, 2 Dowl. P. C 69. 
 
 (/) Taken from Eng. R. G. No. 88 of H. T. 1858. 
 
 (;;) " On a replication, Ac, denying the existence of a record pleaded by 
 defendant, &c., a rule for the defendant, <tc." This rule doea not opply to a 
 
 1 
 
 .'■^y 
 
 li\ 
 
 ■ -J- 
 
 
■^:\ 
 
 V''^ 
 
 y^\ 
 
 W'- 
 
 644 
 
 REQUL^ QENERALES AS TO PRACTICE. 
 
 [11. 36. 
 
 four days' notice shall be substituted, requiring the defendant to pro. 
 duce the record, otherwise judgment. (A) 
 
 3G. (0 In all cases where the plaintiff's pleading in in denial of the 
 pleading of the defendant, without joining issue, (j) the plaintiff's 
 attorney may give notice of trial at the time of delivering his replica- 
 tion, or other subsequent pleading, and in case issue shall afterwards 
 be joined, such notice shall be available, (Jc) but if issue be not joined 
 on such replication or other subsequent pleading, and the plaintiff &",nll 
 sign judgment for want thereof, and forthwith give notice of assess- 
 ment of damages, such notice shall operate from the time that notice 
 of trial was given as aforesaid; (Z) and in all cases where the defendant 
 demurs to the plaintiff's declaration, replication, or other subsequent 
 pleading, the defendant's attorney, or the defendant, If he plead in 
 person, shall be obliged to accept notice oF assessment on the back of 
 the joinder in demurrer; (m) and in case the defendant pleads a p!ea 
 in bar or rejoinder, &c., to which the plaintiff demurs, the defendant's 
 
 notice by plaintiff that he will produce his own record : see Maguire v. Kincaid, 
 
 1 Ex. 608, 
 
 (h) The notice may be in this form — Take notice that yon are required on, 
 «Jrc., to produce the record pleaded by you in this cause, otherwise Judgment 
 will be entered for the plaintiff. 
 
 (i) Taken from Eng. R. G. No. 40 of H.T. 185,S, the origin of which was Enj;. 
 K. G. No. 59 of H. T. 2 \Vm. IV : Jervis N. R. 75 ; with which our Rule No, 23 
 of 13 <fe 14 Vic. corresponded. 
 
 (J) ^^ general, notice of trial, «fec., cannot be given until issue is joined: 
 Ginger v. Pycroft, 5 D. «fe L. 554. The exception under this rule is wliero 
 plaintiff's pleading is in denial of the pleading of defendant, <fec. Issue mint be 
 completely joined on the day for which notice of trial is given : Fook v. Fain et a!, 
 
 2 L. M. & P. 609. 
 
 (i-) This rule is framed with a view to the benefit of a plaintiff by enabling 
 Lim to proceed to trial with as Utile cle'.ay as possible. The notice may bo 
 given either at the time of delivering plaintiff ^ pleading, or afterwardi bef'.'re 
 issue joined: MuUins et al v. Ford, 4 D. <fe L. 765. 
 
 (?) The effect of this part of the rule is merely to throw the notice of assoss- 
 rcent back to the time — not when the pleading is delivered, but when the notice 
 of trial is given. This provision seems to uphold the construction mentioned in 
 the preceding note, viz., that the notice of trial may be given at a time distinct 
 from the delivery of the issue : Mullina et al v. Ford, 4 D. <& L. 765. 
 
 (m) If the defendant demur and the demurrer be not sot aside as frivolous, 
 the notice of trial is nugatory : Foole v. Fain et al, 2 L. M. <b P. 609. But if the 
 demurrer be set aside as frivolous, the judge may order the issue to stand .ind 
 the case to be tried according to the notice delivered; HegingbotJtam v. Tlie 
 Eatlfni and Continental Steam Packet Co., 8 C. B. 337. 
 
uire v. Kincaid, 
 
 Rs. 37-39.] 
 
 TRINITY TERM, 1856. 
 
 645 
 
 attorney, or the defendant, if he plead in person, shall be obliged to 
 accept notice of assessment on the back of such demurrer, (n) 
 
 37. (o) Notice of a trial at bar shall be given to the Clerk of the 
 Crown and Pleas of the Court before giving notice of trial to the 
 party, (p) 
 
 38. (2) No rule for a trial by proviso shall be neceessary. 
 
 VIEW, (r) 
 
 39. (s) Upon any application for a view, there shall be an affidavit 
 stating the place at which the view is to be made, and the distance 
 thereof from the Sheriff's office ; and the party obtaining the order for 
 the view, shall deposit with the sheriff the sum of six pounds and five 
 shillings in case of a common jury, and eight pounds and ten shillings 
 in case of a special jury, if such distance do not exceed five miles, 
 and seven pounds and fifteen shillings in case of a common jury, and 
 ten pounds fifteen shillings in case of a special jury, if the distance be 
 above five miles; and if such sum shall be more than sufficient to pay 
 the expenses of the view, the surplus shall forthwith be returned to 
 the party who obtained the view, or his attorney, and if such sum 
 shall not be sufficient to pay such expenses, the deficiency shall forth- 
 with be paid by such party or his attorney to the Sheriff; (/) and the 
 
 ()() This is in perfect Ivcoping with the preceding provisions, the object cf 
 wliidi is to facilitate trials, Ac. 
 
 (0) Taken from Eng. R, G. No. 41 of H. T. 1853. 
 
 (;)) Eight days' notice is sufficient in all cases whether at bar or at nif?i prius : 
 section 2ul, C. L. P. Act. The first and last daj's are now inclusive, so tliat 
 llonilay for Monday is sufficient: Morell v. Witmot, C. P. E. T. 1870. The 
 Attorney-General, acting for the Crown, has a right to demand a trial nt bar: 
 liij: V. llalcs, 2 Str. 816 ; licgina v. Banks, 2 Salk, 652. In other cases the Court 
 cxffcises its discretion: Hex v. 27ic Burgesses of Caermarlhen, Say, 79 ; Holmes v. 
 Broim, 2 Doug. 437. 
 
 (y) This rule is in effect the same as the latter part of section 227 C. L. P. 
 Act : see note e to that section. 
 
 (/•) The practice of granting views as it now exists is founded upon Eng. 
 Stat. 4 Anne, Ciip. IC sec. 8; 3 Geo. II. cap. 25: and Con. Stats, U. C. cap. 31, 
 sees. 124, 126 : see note b to section 196, C. L. P. Act. 
 
 (s) Taken from Eng. R. G. No. 49 H. T. 1853, the origin of which was Eng. R. 
 Q. B. of T. T. 7 Geo. IV. ; 5 B. A C. 795. 
 
 (0 The order for a view in England is in this form : " It is ordered at the 
 iiistniico of the plaintiff {or defendant) that the slieriff of, itc , according to tlie 
 fui'm of the Statute in that case made and provided, shall cause the place in 
 question to bo shown to six or more of tlio jury {or, if specinl jury, " s^ix or 
 more of the first twelve jurors"), summoned and empanelled to try the i-:sues 
 
 ■■ii' 
 
 m 
 
 lu 
 
fj'ffl 
 
 t 
 
 ■ ■ ^' 
 
 ^^^ i 
 
 
 
 i 
 
 1 ' 
 
 646 REQULiB OENERALES AS TO PRACTICE. [R. 40. 
 
 Sheriff shall pay and account for the money so deposited, accordinfr to 
 the scale following, that is to say : — 
 
 For Travelling txpenses to the Sheriff, Sheioers, and Jurymen — expenses achtallu 
 
 paid, if reasonable. 
 Fee to the SheriflF, wheu the distance does not exceed five miles £ s. d. 
 
 from his office 10 
 
 Wliere such distance exceeds five miles 15 
 
 In case he shall be necessarily absent more than one day — then for 
 
 each day after the first, a further fee of 15 
 
 Fee to each of the Shewers, the same as to the Sheriff, calculating, Ac. 
 
 Fee to each common juryman, per diem 5 
 
 Fee to each special juryman, per diem 10 
 
 Allowance for refreshment to the Sheriff, shewers, and jurymen, 
 
 common or special, each, per diem 5 
 
 To the Sheriff for summoning each juryman, whose residence is 
 
 not more than five miles distant from the Sheriff's oflico 2 
 
 And for each whose residence exceeds five miles from Sheriff's 
 
 office 3 
 
 XEW TRIALS-MOTIONS IN ARREST OF JUDGMENT— JUDGMENT NON 
 OBSTANTE VEREDICTO, (u) 
 
 40. (v) No motion for a new trial or to enter verdict or non-suit, 
 motion in arrest of judgment, Oi for judgment non obstante veredicto, 
 shall be allowed, after the expiration of four days from the dtiy of trial, 
 nor in any case after the expiration of the term, if the cause be tried in 
 term ; or when the cause is tried out of term, after the expiration of 
 the first four days of the ensuing term, (?<;) unless in either case 
 
 between the parties, or as many more of them as he shall think fit, to tako a 
 view of the place in question on, &c., at, &c., of tlie clock in tlie forenoon of the 
 same day, which said jurors shall meet at the liouso of A. B., known by llie 
 name or sign of, «tc., in, &c., and shall then and there be rt'freslicd nfc tiio cqiml 
 charges of the said parties ; and th.at C. D. on the part of the plaintiff, and II. F. 
 on the part of the defendant, shall show the place in question to the said jurors, 
 but that no evidcnci" shall be given to the said jurors on either side. And it is 
 further ordered that the plaintiff {or defendant), his attorney or agent sliall 
 deposit in the hands of the sheriff of the said county the sum of, Ac. for pay- 
 ment of the expenses of said view, to be accounted for by the said sheriff pur- 
 suant to the statute and the rule of this Court; the plaintiff (or defendant) lieruby 
 consenting that in case no view^ be had, or if a view shall be had by^ any of the 
 said jurors, whether they shall happen to be six or any particular nunibor, yet 
 the said trial si: ill proceed and no objection shall be made on account tliorcof. 
 By the Court, <fec." Differences existing between ours and the Lnglish law 
 pointed out in note b to section 196, C. L. P. Act, must, however, be observed in 
 proceedings under the rule here annotated. 
 
 («) The six following rules provide in detail for subjects of practice, for wliieli 
 provision is in some degree made in the C. L. P. Act. References hereafter made 
 will point out places where these provisions may be found. 
 
 («) Taken from Eng. R. G. No. GO of II. T. 1853, 
 
 {»«) The power of the court before the new rules to entertain a motion for a 
 new trial at any time before judgment actually entered, was uudo ibted: Bens v. 
 
 w- 
 
acconlinr; to 
 
 lENT NON 
 
 R, 40.] TRINITY TERM, 1856. 647 
 
 entered in a list of postponed motions, by leave of the Court, (x) 
 
 Stover et al, 12 U.C.Q.B. 62i, per Draper, J. It lins since been thought thnt the 
 rule being as it were a statutory rule, has left tlie court no discretion. In Ellaby 
 V. Moore, 13 C. E. 90S, Jervis, C J., said, " The rule is imperative, and it is safest 
 to adhere to it strictly;" see further Pain v. Km/, 31 L. J. Ex. 22 1; Copcutt v. 
 Gnat Western Railway Co. L. lU 2 C. P. 46.5. But upon tliis argument being 
 pressed on the court \n Johnson \. Warwick, 17 C- Y>. 518, where the luic nisi 
 had been granted after the time, subject to any objection being made on the 
 ground of its being made out of time, Jervis, C. J., is reported to have said " It 
 has never been the practice to make objections of this sort." And Cresswell, -J.. 
 " I for one am very unwilling to suppose that my lord and my brothers at all 
 exceeded their authority in allowing the rule to be moved under the peculiar 
 circumstances." In a late case the Court of Exchequer were against the 
 existence of the power: Sutton v. Craig, 4 L. T. N. 8. 217. I?ut it would 
 3tin appear to bo ' matter of discretion exercised sparingl}- in particular ea.ses. 
 Keference therefore will here be made to cases decided as well before as sina? 
 the rule. In Willitv. Bennett, Barnes, 443, decided in M. T. 11 Geo. H. the 
 court granted a rule after the time limited, but declared " that for the future 
 no such motion should be received after the four days, unless the foundation 
 of the motion be a fact not disclosed to the party till after that time :" liyles, 
 J., in Gambert v. Mayne, 14 C. 13. N.S. 321, said "I believe this has never been 
 allowed since Barnes' time, except where counsel has by mistake moved in 
 the wrong court and so inadvertently let the time for moving slip by." In 
 Birl V. Barlow, 1 Doug. 171, decided in 1779, where counsel erred as to the 
 computation of the time, and the learned judge who tried the cause desired at 
 the trial that the opinion of the court should be taken, the motion though 
 late was allowed. In another case, the application was allowed after the time 
 to :^et aside a verdict for aplaintiff, the learned judge at the trial being of o[iinioa 
 that the law was with defendants, but permitted the verdict to be entered for 
 the plaintiff on condition that if the court above agreed with him it should be 
 entered for the defendants, so that there should be an end of litigation : As- 
 signecs of Smyth v. Sayers, Howe's Ir. R. 571. In a case tried before an under- 
 6herilf, who delayed to furnish his notes in the proper time, the matter having 
 been mentioned within the four daj-s the application was allowed afterwards : 
 Tliviucs V. Edwards, 2 Dowl. P. C. 6V)4. The application should be made witliin 
 the time for further time: Williams v. Andrews, 9 Dowl. P. C. 122 ; Wliffler v. 
 Whltmore, 4 Dowl. P. C. 235. So where by mistake the motion was within the 
 four days made in the wrong court, the right court under the circumstances 
 allowed the rule to stand good as of the right court : Piijyott v. Kemp, 2 Dowl. 
 P. C. 20 ; see also Bois v. Stover et al, 12 U. C. Q. B. 623 ; Johnson v. Warwick, 
 17 C. B. 516. The court by consent has enlarged the time for moving in arrest 
 of judgment until after the determination of issues in law : Harrison et al v. Thv 
 Gi\'it Xorthcrn liailway Co. 11 C. B. .")12. Pint where a cause was trii'd on the 
 last, day but two of Easter Term, the court refused to allow a motion for a new 
 trinl to be suspended until after the first day of Trinity Term, on the ground 
 that the attorney had not had time since tlie trial to prcjiare himself with allida- 
 vits of surprise : Cooper v. Lloyd, 6 C. B. N S. 519. A suggestion of perjury on 
 the part of the defendant and his witnesses, and that fresli evidence has been 
 discovered by the plaintiff since the expiration of the time for moving for a new 
 trial, is now held to afford no ground for asking for an extension of time : Gam- 
 hart V. Mayne, 14 C. B. N.S. 321. Where the case is not one of much impor- 
 tance and the verdict in no way binds title to property, the rule will not be 
 relaxed: Price v. Duggan, 2 M. cik G. 641. The court will not break through a 
 good rule for a partv who has no merits: Smith v. Robinson, 2 Ir. L. llec O.S. 
 2;i9; Uunty. Blomfield, 3 Ir. L. Pwcc. OS. 18. 
 
 (r) See R. G. pr. 41. 
 
 .'■H '■! 
 
 \3- 
 
 •>'h 
 
 
 
648 
 
 REGUL^ GENERALE8 AS TO PHACTICE. [Rs. 41-44, 
 
 41- (c) No suitor who appears in person, shall be at liberty to set 
 down any motion in such list of postponed motions, without the express 
 leave of the court. (fZ) 
 
 43. (/) No affidavit shall be used in support of a motion for a 
 new trial in any case, unless such affidavit shall have been made within 
 the time limited for the making of such motion, («/) without the 
 special permission of the court for that purpose, (/t) 
 
 43. (i) If such motion as above mentioned (/) be entered in such 
 list of postponed motions, the attorney, who has instructed counsel to 
 make the motion, shall give notice of it to the attorney of the opposite 
 party, otherwise judgment signed on behalf of the opposite party 
 shall be deemed regular, and every suitor who appears in person, shall 
 give a similar notice. (T) 
 
 44. (ni) If a new trial be granted without any mention of costs in 
 
 li^HKi 
 
 lij 1 
 
 
 fig |- 
 
 (c) Taken from Eng. R. G. No. 51 of H. T. 1853. 
 
 (o') See note w to R. G. pr. 40. 
 
 ( /■) Taken from Eng. R. G. No. 52 of II. T. 1853, the origin of which was Eim. 
 E. i^. B. of T. T. 5 Geo, IV. : 3 B, & C. 176. 
 
 (i') The English Court of Exchequer refused to allow an affidavit to be read 
 w lich was sworn after tlie first four days of tlie term, in sui)i>ort of a rule 
 oltained upon it for a new trial, although the rule had been in fact obtained 
 ftfter the affidavit was sworn, in consequence of the motions for new trials extend- 
 ing beyond the four da3-s: Williams v. Mortimer, 11 M. & W. lOi; and the 
 English Court of Common Pleas has refused to allow additional affidavits to be 
 filed in support of a motion for a new trial after the expiration of the time for 
 moving : 6-'«66s v, Tunaley, 1 C. B. 640 ; see further, Allum v. Boultlce, 2U L. J. 
 Ex. 208. 
 
 (A) Upon motions founded upon affidavits, either party may with leave file 
 affidavits in answer upon any new matter arising out of such affidavit : C. L. P. 
 Act, section 183. « 
 
 (»■) Taken from Eng. R. G. No. 53 of U, T, 1853, the origin of which was Ens;. 
 R. G. of M, T. 12 Vic, : 12 Q, B, 855, 
 
 {j) In rule R. G, pr, 40. 
 
 {I) If in such a case judgment bo regularly signed, the party obtaining the 
 rule cannot be heard until the judgment is set aside : Doc d. Whitty ct cd v. Carr, 
 16 Q. B. 117 ; see further Einblin v. Dartnell, 12 SI. <fe W. 830. Leave was given 
 to a defendant to move for a new trial after the first four daj's of terra, but no 
 notice was given to the jdaintiff, and plaintiff signed judgment on the fifth day 
 of term. A rule for a nonsuit or a new trial was afterwards served on the plain- 
 tif^'s attorney. A rule was granted to discharge that rule, but was ordered to 
 stand over till the merits of the first rule should be disposed of. Defendant's 
 pro])er course in such a case would have beeu to have moved to set aside the 
 judgment; Lloyd y. BerkoviU, 16 M. & W. 31. 
 
 (»«) Taken from Eng. R. G. No. 54 of H. T. 1953, the origin of which was Eng. 
 R, G. No. 64 of H, T, 2 Wm. IV, : Jervis N, R, 76, 
 
 IlK'l 
 
 ^ ' 
 
R. 45.] 
 
 TRINITY TERM, 1856. 
 
 649 
 
 an of costs in 
 
 diicli was Enj. 
 
 vliicli was En;;. 
 
 vhich was Eag. 
 
 the rule, the co,sts of the first trial shall not be allowed to the success- 
 ful party, though he .succeed in the second, (u) 
 
 43. (j)) No rule granting a new trial to a party, on condition of 
 payment of costs, or other condition, shall be discharged, on account 
 of default in performing such condition by a rule absolute in the first 
 instance ; (p) but a rule for such discharge shall issue, which shall 
 make itself absolute, unless cause bo shown on or before the day men- 
 tioned for that purpose in the rule, and which shall in no case be 
 earlier than the fourth day inclusive, after service thereof, (ji) 
 
 (h) Tills rule it nppears only applies where a now trial is granted on the whole 
 record: Bower v. Hill et al, 5 Dowl. P. C. 183. It extends to issues in prohibi- 
 tion : Craven v. Sanderson et al, 7 A. cfc E. 897, n. Where a cause was referred at 
 Li?i prius and an award made, which was set aside, and the cause tried a second 
 time, it was held that the party ultimately succeeding was not entitled to the 
 costs of the first trial: Wood v. Duncan, 5 M. & W. 87. A party objecting to a 
 rule for a new trial on the ground of its not mentioning costs, should apply to 
 the court to amend it before going to trial: Earl of Eomney \ . The Jiulonui-e 
 Comininnioncr,^, 2 C. L. R. 1651. If a new trial be granted on the ground that 
 the verdict is against evidence, the coats of tlie first trial abide the e\ ent unless 
 otherwise ordered : section 232 C. L. P. Act. 
 
 (o) Taken from our Rule Xo. 39 of II. T. 13 Vic. 
 
 (/j) This was at one time our practice : Drcan v. Smith, T. T. 1 & 2 Vic. MS. 
 R. «t II. Dig. " 2sew Trial," ix. 2. The rule in England was absolute in the 
 first instance in the (Jueen's Bench: Champion \. Grit/llhs, 1 Dowl. X.S. 319. 
 la tiie Common Pleas it was a rule nisi only : Lord v. Wardlc, 3 C. I?. 21K'). But 
 ill the Exchequer it was as here provided a rule nisi, which made itself iihsoh'to 
 it' no cause were shown: Phillips v. Warrtn, li M. it W. 730; see also Solli/ v. 
 Laiiford, 13 M. iSs W. 151. 
 
 ('/) It is the duty of a party obtaining a rule for a now trial on payment of 
 costs to proceed witii the taxation of costs and with the payment thereof, so as 
 to (Miable the cause to be tried at the next ojiportunity ; Prondj'oot v. Iloldcn, 
 
 1 Cham. R. 22 ; Johnson v. Sparrow, 1 UC. Q B. o'JO ; Chaso cl al v. Gobic, 3 M. 
 it (i. 635. But the omission to do so will not necessarily deprive him of the 
 bi'iiutit of the rule : Grantham v. Powell, 1 Prac R. 256 ; Jiahidon v. JIarhin, 
 
 2 I'rac. R. 129; VanEvenj v. Drake, 3 Prac. R. 8-1. Plaintiff cannot treat tho 
 omission of the defendant to take out and servo the rule in what they consider 
 diiu time as an abandonment of it, so as to justify him in signing judgment: 
 Li/iiiiiH it al y. Sitarr, lb- 86. Where a i)laintitf set aside a noiisuit (iii pay- 
 mt'iit of costs, and proceeded to trial w'ithout j)aying the costs, and olitained 
 a vtrdict, the verdict was set aside: Nichols v. Ihr.on, 13 East. 185. But where 
 a new trial is granted to a defendant on payment of costs, if plaintiff proceed to 
 a sifond trial without payment of the costs he cannot afterwards recover them : 
 y,ir,\r V. DcFlinn, 8 .Jur. 779. There is nothing to prevent either ]iarty 
 taking out the rule and having tho costs taxed : Lyman el al v. Snarr, 3 Prac. 
 K. S'i. When a plaintiff obtains a new trial on payment of costs he is not bound 
 to pny them before tho then next assizes: Staeeij v. Mcln/tjre, 6 U. C. L. J. N.S. 
 I'll- Under special circumstances the rule, though become absolute, may be 
 disi'harged, and further time given to defendant to pay costs : Jiccucs v. JJyera, 
 T. T. 4 & 5 Vic. 31S. R. & U. Dig. " New Trial," ix. 6. 
 
 4 ' 
 
 f-i ;(»■.' i, 
 
 t 
 
 4" 
 
050 
 
 REGUL.L OENERALES AS TO PRACTICE. [Rs. 4(j-43. 
 
 Mfm 
 
 
 
 
 ft j^*»»¥* ^ 
 
 
 JUDGMENT, (r) 
 
 46. (s) No rulo for judgment shall bo necessary. 
 
 47. (0 All judgments, whether interlocutory («) or final, (v) shall 
 be entered of record of the day of the month and year, whether in term 
 or vacation, when signed, and shall not have relation to any other 
 day, (jc) but it sliall be competent for tho court or a judge to orJei' a 
 judgment to bo entered nunc j^'o time, (.x) 
 
 COSTS : SETTING OFF DAMAGES OR COSTS, (y) 
 
 (r) Jiuliirnients nre either interlocutory or final. Interlocutory jndfrinc:,;^ arc 
 occasionally given upon some plea, proceetling or default occurring in the cinirso 
 of tlio action, and wliich does not terminate tho suit. But tlie most ccinnion 
 kind of interlocutory judgments are those wliich are given when the ri;;'lit dt'thc 
 plaintiff is indeed established, but tho quantumoi damages sustained by him is not 
 ascertained: Smith's Action at Law, loth ed., 170. As to final judgments, they jmt 
 an end to tho action altogether by declaring eitiicr that tho plaintilf is or is not 
 entitled to recover, and if entitled to recover, specifying what : Ih. 1 !S3. It rn.iy be 
 mentioned that interlocutory judgments and judgments by default are soMU'ti'ines 
 spoken of as synonymous. Though often identical in effect, as where some ulti rior 
 step, such as assessing damages by a jury, referring bills, bonds, not' s, itc. to tlic 
 master is necessary before final judgment; still there is this distinction, n jiid:;- 
 ment by default or nil (licit is sometimes final, whereas an interlocutory jiidniauut 
 is always ii;cIioate and imperfect, always requiring ulterior steps to be tiikfu. 
 
 («) Taken tVom Eng. R. G. No. 55 of II. T. ISu.-]; but in this rroviii.-,; is in 
 fact as old as ruie 10 of T. T. 3 it 4 Wra. IV. : Cam. 11. 10. 
 
 (0 Taken from Eng. R. G. No. 56 of II. T. 1853, the oriuin of which wns En?. 
 R. G. No. 3 of II. T. 4 Wm. IV. : Jervis N. II. 116; with'whicli our rule No. lii 
 of E. T. 5 Vic. corresponded : Cam. R. 28. 
 
 (?<) See riOte r to R. G. pr. 46. 
 
 («) Taxation of costs and entry of final judgment are contomporaiieou.s acts, 
 and judgment is not final until costs have been taxed, unless, it seems, the party 
 entitled to them intends to waive tliem: Peirce v. Dcrnj, 4 Q. B. 033. 
 
 (w) .Judicial proceedings are considered as taking plnee at the earlie-it [u'riod 
 of the day on which they are done. Therefore where judgmiMit was signed nt the 
 opening of the office at its usual hour, 11 a.m. and tho defendant died iit half past 
 nine a..m, on the same morning, the judgment was held regular: Wn:;ki it at v. 
 Jilills, 4 II. & N. 488; see also Converse el al v. Michie, lU U. 0. C. i'. li'.T. 
 
 {x) This provision applies only to cases where the delay is the act of tlie court 
 and not of the parties : Lawrence v. Hodgson, 1 Y. & J. 868 ; Freeman v. 'IVdnah, 
 12 C. B. 406 ; Miles v. Williams, 9 Q. B. 47 ; Ilcalhcole v. ^Yynn, 25 L. T. Rep. 247; 
 Denixon v. Holiday, 26 L. J. Ex. 227 ; Bates q. t. v. Lockicood, 1 T. R. 637; Lnimart 
 V. Lord Audtci/, 2 M. <fc W. 535; Doc d. Tri/lor v. Crisp, 7 Dowl. V. C. .Wl ; The 
 Fishmonqcrs' Co. v. Robertson et al, 3 C. B. 970; Blackburn v. Godrick, U Dowl. 
 P.C. 837; Neil v. McMillan, 27 U, C. Q. B. 257. 
 
 (y) Incident to the judgment ai'O the costs which are awarded therein to tlie 
 successful party. Costs are either interlocutory or final. luterlocutury costs 
 arc given upon matters arising in the course of the suit; they are goiierally 
 awarded upon motion, and lie in the discretion of the court, which exoreisis its 
 equitable jurisdictio.'i either in granting or refusing them. Final costs are givca 
 by statute, and depend on the event of tho action : Smith's Action at Law, lOtli 
 ed. 189. 
 
Rs. 48-51.] 
 
 TRINITY TERM, 1850. 
 
 651 
 
 3 Province is in 
 
 48. (~) Ono (lay's notice of taxing costs, together with a copy of 
 the liill of costs and aflidavit of increase, if any, shall bo given by the 
 attorney of tho party, whose costs are to bo taxed (a) to tho other party 
 or his attorney in all cases where a notice to tax is necessary, (h) 
 
 49. (c) One appointment only shall bo deemed necessary for pro- 
 ceeding (d) in tho taxation of costs or of an attorney's bill. {(•) 
 
 50. (/) Notice of taxing costs shall not be ncce.*sary in any case {g) 
 wlicre tho defendant has not appeared in person, or by his attorney or 
 guardian. ^ij^/ 
 
 51. (Ji) When issues in law or fact are raised, tho costs of the ^^ 
 several issues both in law and fact will follow the flnding or judgment, 
 
 and if the party entitled to the general costs of the cause obtain a 
 
 (-') Taken from Eng. R. G. No. 59 of 11. T. 1853, tho origin of which was Eng. 
 R. G. No. 10 of M. T. I Wm. IV.: Jervis N. R. 10. 
 
 {a) Where by the practice of tho fourt costs need not be taxed, it is unnoces- 
 gavy to give ono day's notice of taxation : Griffiths v. Liversedge, 2 Dowl. P.O. 113. 
 
 {/)) It soenis to have been at one time donbted wliether non-coniiiliance with 
 a rule similar to this was a gronnd for sotting aside a judgment: si'e Perrij v. 
 Turmr ct al, 2 C. «fc J. 89 ; RoulMge v. Giles, lb. 163. But it is now suttlod that it 
 is niorely a ground for reviewing tho taxation: Taylor v. Miirrai/, 3 SI. tt W. 
 141 : Wtlkins v. Perkins, 2 M. ct W. 315 ; Lloyd v. Kent, 5 Dowl. P.O. 125 ; Ibkrton 
 r. i^ill. 2 C. B. 249; Field \. Partridge, 1 Ex. C89; Fellony^onlgf^ VvjXSl^Mu^^ 
 :il!K The rule does not apply to judgment ou demurrerTT'f/^/or v. Murray, 
 S il. & W. 141. 
 
 (c) Taken from Eng. R. G. No. GO of U. T. 1853. 
 
 ('/) One half hour's grace is always allowed by tho practice of tho courts for 
 both parties to appear before proceeding to taxation: Landon v. Stiibhs, 
 3 U. C. L. J. 70. This is the practice as much whore an appointment is 
 taken out as where a notice of taxation is given: lb. When a party fails to 
 attend tho taxation pursuant to notice or appointment, he may perhaps be pro- 
 chuk'd from objecting to the amount of an item in tho discretion of the master, 
 but not from objecting in toto to items, upon the allowance of which the master 
 has no discretion at all: Conger v. McKeclmie, 1 Cham. R. 209. 
 
 (ej " In the taxation of costs or of an attorney's bill," etc. apparently intend- 
 ing costs as between party and party, and as between attorney 'ind client. 
 
 ( f) Taken from Eng. R. G. No. 61 of II. T. 1853, the origia of which Avas Eng. 
 R. G. No. 11 of II. T. 4 AVra IV.: Jervis N. R. 110. 
 
 (//) In any case, etc. This rule is express, thot no notice shall be necessary 
 when no appearance is entered: Bolton v. Manning, 5 Dowl. P. C. 709 ; Pope v. 
 Mann, 2 M. & W. 881. Notice, however, will bo necessary when defendant has 
 done that which is equivalent to appearing, as whore lie has assented to a judge's 
 order for a stay of proceedings: Lloyd v. Kent, 5 Dowl. P. C. 125; Perry v. 
 Turner ei al, 2 C. & J. 89. But a mere summons for time to plead, though taken out 
 by defendant, is not tantamount to appearing: Welch v. Vickery, 15 M. <L' W. 59. 
 
 {h) Taken from Eng. R. G. No! 62 of H. T. 1853, the origin of which was Eng. 
 R. G. No. 7 of H. T. 4 Wm. IV. : Jervis N. R, 121 ; with which our Rule No. 26 of 
 
 m 
 
652 
 
 UEGULiE OENERALES AS TO PRACTICE. [Us. 52, 53. 
 
 
 ^> IJ 
 
 Mil!l! 
 
 \ 
 
 
 i 'J '■ 
 
 
 lild 
 
 
 
 
 
 
 ^v 
 
 
 ' > 
 
 
 verdict on any material issue, ho will also bo entitled to the {,'oncnil 
 costs of the trial j (?) but if no material issue in fact bo found for the 
 party otherwise entitled to the general costs of tho cause, the costs of 
 the trial shall be allowed to the opposite party. (,/) 
 
 Sm. Qc) No set-oflF of damages or costs between parlies jshall bo 
 allowed to the prejudice of the attorney's lien for costs in the particular 
 suit against which tho set-off is sought; {I) provided, nevcrtholcss, that 
 interlocutory costs in tho same suit awarded to tho adverse party may 
 bo deducted, (vi) 
 
 tS3. (w) No privilege shall hereafter be allowed to any person to 
 exempt him as plaintiff from the operation of any statute or rule of 
 court which restrains costs on any causes of action of the proper com- 
 petence of the county court, (o) 
 
 E. T. 6 Vic. corrospondcd : Cam. R. 29. The latter part of section 1 Ki, C. L. P. 
 Act, whicli is to tho offoct tliat " tlie costs of any issue, citlier of fnct oc of hiw, 
 shall follow tho finding or jud^jment on snch issue, find bo adjudi^ed to tho 
 successful party, whates'cr may be tho result of tho other issue or issues," is ia 
 substance tho same as this rule. See the notes thereto. 
 
 («') Tiie rule does not apply to a case where the pleadin<TS in one action ii;:iiiiigt 
 two or more defendants are at common law and each pleading separately, one 
 defendant succeeds on his single plea, so as to prevent the ])laintitf Imvinc;' jiulji- 
 ment against his co-defendant or co-defendants who have failed on the irrsini un 
 the other pleas: Cazneau v. Morrice et al, 25 L. J. Q. B. 126. 
 
 (j) For a review of tho decided cases bearing upon tho subject matter of lliis 
 rule, see note i to section 110, C. L. P. Act, 
 
 (k) Taken from Eng. R. G. No. 63 of H. T. 1853, the origin of which was En?. 
 R. G. No. 93 of IT. T. 2 Wm. IV. : Jervis N. R. 86. The history of the latter nilo 
 is explained by Jervis, C. J., in Dunn y. West, 1 L. M. & P. 615. 
 
 (1) This rule is inflexible, and applicable to all cases: Ilumbletonv. Ilif/gin- 
 botham, Ex. H. T. MS. 1832. It cannot bo affected by tho private agrconuiit of 
 the parties to a reference: Cornell v. Betteley, 2 Dowl. P.O. 780. Where, liowcver, 
 an arbitrator awards a sum to be paid to A., in respect of matters in diUVreiice 
 between him and B., and the costs of the action (a smaller sum) to be paid to B. 
 nt the same time and place, the court has not, it appears, jurisdiction to order B. 
 to pay the whole sum awarded to A., to A.'s attorney on account of his litii for 
 costs: Dunn v. West, 10 C. B. 420. The rule extends only to tho costs of tho 
 particular cause to be taxed as between attorney and client: Watson v. Muslcell, 
 1 Bing. N. C. 366. It applies to cases where there is a cross claim in sep.irate 
 actions: George v. Elston et al, lb. 513 ; Lees v. R^ffitt et al, 3 A. & E. 7<>7 ; see 
 also Latham v. Hyde, 1 C. <fe M. 128 ; Seott v. DeRichebourg, 1 1 C. B. 447 ; Simpson 
 et al V. Lamb, 7 EI. «fe B. 84; Lloyd v. Manseil, 22 L. J. Q. B. 110; Dninsdon v. 
 Allard, 2 E. cfe E. 19; Shawy. Neale, 20 Beav. 157; Sympson v. Frolhcro, 215 L 
 J. Ch. 671 ; Verity y. Wild, 28 L. J. Ch. 561 ; In re Marsack and Webber, 2 E. ife 
 E. 637 ; SCandeven et al v. Murgatroyd, 27 L. J. Ex. 425. 
 
 (m) As to interlocutory costs, see note y to R. G. pr. 48. 
 
 (n) Taken from our R. G. pr. 43 of H. T. 13 Vic. 
 
 (o) See C. L. P. Act, section 328. 
 
 4 i 
 
lis. 52, 53. 
 
 the general 
 mnd for tbo 
 tbc costs of 
 
 tics sh:ill bo 
 he particular 
 rthole.ss, that 
 ic party may 
 
 ny person to 
 ,0 or rule of 
 proper coin- 
 
 n 11(1, C. LP. 
 fnct or of law, 
 jiuliji'd to the 
 ir issuer," is ia 
 
 fiction iiijainst 
 5cpnriit(>ly, oiio 
 [■ having; jiul^- 
 n the ir-siKi on 
 
 matter of t'lia 
 
 lich was Eng. 
 the Litter rulo 
 
 eton V. Ilifigin- 
 
 ngreemcnt of 
 
 here, liowevor, 
 
 in dilfei't'iico 
 be paid to B. 
 on to order B. 
 of his lieu for 
 lO costs of tlio 
 ion V. Miiskell, 
 im in separate 
 & E. 707; see 
 447; Simpson 
 
 Bnmsdon v. 
 'rolhero, 2ti L. 
 Vebber, 2 E. & 
 
 Rs. 5 1, 55.] 
 
 TRINITY TERM, 1S5G, 
 
 G53 
 
 KXECUTK^N. (y.) 
 
 ii\- i'j) No writ of execution shall issue until the proceedings to the 
 end of the judgment are duly entered on the roll ; (r) nor shall any- 
 writ ngninst Iand.s issue until the judgment has been duly minuted and 
 docketed. («) 
 
 an. (t) A prsccipe for every writ of execution shall be filed with the 
 proper officer, (m) and the endorsement upon every such writ, for debt 
 or damages, shall be to the effect, and as nearly as the circumstances 
 will allow, in the form following : (y) " Levy (or take) the sum of 
 
 £ , being the debt (or damages), and the sum of £ , being the 
 
 costs taxed in this cause, with interest (according to the circuinstancc»)'i 
 
 also the aura of £, for this writ (and former writs, if avi/, and 
 
 ShcrilT's fees thereon), together with your own foes, poundage and 
 incidental expenses:" and shall also (w) be endorsed with the name 
 and place of abode, or office of business, of the attorney actually suing 
 
 (p) The jud{jincnt of the court ig the sentence ns between the parties to a 
 enuse. The next step ia to put that sentence into operation, which is done by 
 Issiiin:^ execution. 
 
 (q) Tliis rulo is original, and lays down a prnctico at variance witli that of 
 England : see Eng. R. G. Nos. 70, 71 of II. T. 1853. 
 
 (r) No execution can issue until final judgment is entered : Finch v. Brook, 
 5 Dowl. P. C. O'J ; and when issued, must conform to the judgment roll : Kiny v. 
 Jiircli, 3 Q. B. 425; Phillips v. Birch, 2 Dowl. N. S. 97. Execution cannot issue 
 pending an action on the judgment: Durdua v. Satchwcll, Barnes, 208. 
 
 («) See C. L. P. Act, section 243. 
 
 (/) The first part of tiiis rulo appears to bo taken from our rule No. 44 of II. T. 
 13 Vie,, and the last part from Eng. II. G. No. 73 of II. T. 1853. 
 
 (m) Tlie prceeipe may be in this form : Required a writ of, tfec, directed to the 
 sheriff of, tfcc, returnable immediately after the execution thereof, Ac. 
 
 (i') If money have been paid on the judgment before the issue of execution, tlie 
 levysiiduld be restricted to the balance unpaid: I'levin v. Ihnshallet al, 10 Bing. 
 24 ;" and though the action be on a bond conditioned for tJie payment of a sum 
 of money in gross, and judgment be had for tiie penalty, the indorsement on the 
 execution should not be for a sum greater than the principal or true debt, interest, 
 nominal damages and costs : Ameri/ v. Smalridge, 2 W. BI. 700. AVlien execution 
 is frandulently issued and indorsed for the wliole sum named in a judgment whea 
 part Ims been already paid, the defendant's remedy (unless malice, <fec., can be 
 proved) is by motion to set aside the execution: De Medina v. Grove etal, 10 Q.B. 
 152. In the absence of fraud, «tc., th3 court will only direct the levy to be 
 reduced: McCormackv. Melton, 1 A. A ^. 331; and when the sum indorsed, if 
 too much, has been really levied, the court may direct the overpluij to be refunded : 
 Bareheiid v. ffall, 8 Dowl. P. C. 796, n. So it too little have been levied, the court 
 may allow plaintiff to amend his indorsement: Hunt v. Piitmore, 2 Dowl. P. C. 
 414; Smith v. Dickinson, 13 L, J. Q. B. 151. 
 
 (tc) This part of the rule U taken from Eng. R. G. No. 13 of H, T. 1S33. 
 
 'Is 
 
 ■ !■'< .1'. 
 
 li 
 
 tliir^ 
 
 jlit;: ti 
 
 V 
 
654 
 
 REaUL^i: GENERALES AS TO PRACTICE. [Rs. 50-58. 
 
 5^ 
 
 r^ 
 
 out the same; (x) antl when the attorney actually .suing out the writ 
 shall sue out the same, as agent for any attorney in the country, the 
 name and place of abode of such attorney in the country shall also 
 be endorsed upon the said writ; (.y) and in case no attorney shall he 
 employed to issue the writ, then it shall be endorsed with a uicmoran- 
 dum expressing that the same has been sued out by the plaintiff or 
 defendant in per.son, as the case may be, (z) mentioning the city, town, 
 ncorporated or other village, or township, within which such plaintiff 
 or defendant resides, (a) 
 
 SG. (h) Every writ of execution shall be tested in the name of the 
 Chief Justice of the Court from which the same shall issue, or in case 
 of a vacancy of such office, then in the name of the senior puisne 
 judge of the said court, (c) 
 
 rilOCEEk)INGS AGAINST GARNISUEE. {il) 
 
 57. (e) All writs, rules, orders, or other proceedings against a Gar- 
 nishee, shall be issued, taken, and had (/) in the Court in which the 
 j.::dgment was rendered in favour of the party applying to attach the 
 debt due to his judgment debtor, {(j) 
 
 58. (Jt) The entries of the proceedings against a Garnishee, in tiis 
 debt attachment book, (/) shall be made according to the form here- 
 after given. (^' ) 
 
 {x.) Sco note s to section 12, C. L. P. Act. 
 (y) See note t to section 12, C. L. P. Act. 
 (z) See note m to section 13, C. L. P. Act. 
 
 (a) See note ?o to section 13, C. L. P. Act. 
 
 (b) Taken from Eng. R. G. No, 72 of H. T. 18.')3, and corresponds witli sec- 
 tion 24 of C. L. P. Act, which relates to writs of mesiio process. 
 
 (c) See note I to section 5 C. L. P. Act. 
 
 {d) It is in effect enacted in the C. L. P. Act, that It shall be lawful for n jiidg- 
 ineut creditor to make application to a jutlge, setting forth that a judgraciit has 
 been recovered against a debtor, and is unsatisfied, and that any other per.son is 
 indebted to the judgment debtor, whereupon the Judge may order tiie debt 
 accruing from such third poison to be attached, Ac. : section 288. The " dtlier 
 person" of whom mention is made '.n this section is the person described in legal 
 proceedings as the " garnishee." 
 
 (c) This rule is original. 
 
 (/) " Issued" refers to the act of the ofllcer of the Court, " taken and had" to 
 the act of the attorney. 
 
 (g) See notes to section 288, C. It, P. Act, 
 
 (A) This rule is original, 
 
 (t) See section 298, C. L. P. Act. 
 
 {j) See form No. 60, in Schedule to these rules 
 
 t^?^■^M^ 
 
• m' H 
 
 Rs. 59-62.] 
 
 TRINITY TERM, 185G. 
 
 G55 
 
 *! 
 
 Garnishee, in die 
 [0 the form liere- 
 
 " taken and had" ^'^ 
 
 REVIVOR AND SCIRE lAC'IAS. (/:) 
 
 59- (J) A plaintiff .shall not be allowed a rule to quash his own 
 writ rcire facias or revivor, (m) after a defendant has appeared, except 
 on pnynient of costs, (n) 
 
 G^&. (o) A scire facias upon a recogiiizaneo taken before a judge 
 or !i couiuiissioner in the country (p) and recorded at Toronto, (q) 
 shall ho brou<iiit in the County of York only, and tho form of the 
 recognizance shall not express where it was taken, (s) 
 
 di. (0 No judgment shall be signed for non-appearance to a scire 
 facias, without leave of the court or a judge, unless defendant has 
 been fiunnuoned, but such judgment may he signed by leave after eight 
 Jays from the return of one scire facias, (m) 
 
 GiS. (v) A notice in writing to the plaintiff, his attorney, or agent, 
 
 (/,) Tho writ of revivor is the old writ of .mre fac/aa, or more properly an 
 imiiro\eii fonii of .tcirf facias : see notes to section yn5, C. L. 1'. Aet. Owing 
 to till' <;ireuiiistancc of tlie old scire facias in certain cases beint^ retaimil, tiio 
 mrc f'tcms niul writ of revivor arc prncticiilly distinct writs. Eillier pioceed- 
 ini; is in tlie nature of an action, because the defendant can plead to tlie writ: 
 'i Will, Saunders, n. 
 
 (/) Tal<en from Eng. R.O. No. 78 of TI.T. IS.'i;!, the origin of wliich was Eng. 
 R. V,. N„. 78 of II. T. 2 Wrn. IV. : Jervis N. R. 81. 
 
 ()/() The Rule is nisi, only: Ado v. SuMs, i Dowl, P. C. 282; Oliverson v. 
 LaLinr, 7 Dowl. P. C. 605. 
 
 ()') Tho application to quash is generally founded upon nn error of the i>arty 
 is.siiiiii^ the writ. In such a CMse the opposite party is always put to some ax- 
 peiise in consequence of the error. It is therefore oidy reasonable tiiat hv .~li(jiild 
 be jiuid the costs incurred thereby: Pickrnan v. Jiohson, 1 L. ct Al. 4bC; see 
 note ,' to section 320, C. L. P. Act. 
 
 (o) Taken from our Rule No. 2 of H. T. 10 Vic. ; 4 U. C. Q. B. ys. 
 
 [ji) See note p to section 33 of C. L. P. Act. 
 
 ('/) N'o bail piece is perfect as a recognizance till filled : Gillespie el al v. Grant, 
 3 Ij. C. Q. B. 400. 
 
 (.i) As to proceedinfjs b3' scire facias ajrainst bail, sec Potersdorff, Bail, "71. 
 
 [t] Taken from our Rule No, 3 of H. T. 10 Vic. : 4 U. C. Q. B. ;i3 ; tlie origin 
 of whicli was Eng. R. G. No. 81 of II. T. 2 Win. IV.; Jervis N, R. 82. 
 
 (") Tlie object of this and tho succeeding rule (02) being retained is not 
 apiiai-LMit ; for it is provided by tlio C. E. P. Aet, tliat "the writ of revivor 
 shiill be directed to tiio party called upon to sliow cause, Ac.:" seelioii 3O0 ; 
 and tiiat " all writs of scire facias, tfce. (siiecifying all tlie forms (*f writ in general 
 nso), xhdH he tested, directed, and proceeded upon in like iiiaiuicr as writs of jv vlnor :" 
 soelioii :31l. 
 
 (i') Taken from our rule No. 4 of II. T. 10 Vic. : 4 U. C. Q. B. 93 ; the origin 
 of wliieli was Eng. R. G. No. 82 of II. T. 2 Wrn. IV. : Jervis N. R. 83. 
 
 f ■ ';r 
 
li 
 
 1 
 
 i 
 
 1 
 
 > ? 
 
 -^ 
 
 ■ I 1 
 
 ■ ' it 
 
 REGUL^i; GENEEALES AS TO PRACTICE. [Rs. Go G4 
 
 shall be sufficient appearance by tlie bail or defendant on a scm- 
 facias, (jo) 
 
 63- (a) In all suits, actions, or proceedings, by scire facias, infor- 
 mation ov otherwise, by or at the suit of, or in the name of the Queen 
 or of the Attorney or Solicitor General for the time being, commenced 
 or taken to enforce or protect any of the civil rights of the Crown, or 
 concerning any matter or thing affecting such rights, or for any penal- 
 ties or forfeitures under any Customs' Act, or other Act of Parliament 
 in force in this Province — rules to appear, plead, rejoin, join in 
 demurrer, &c., may be had and issued on filling a prBedpc eithu; 
 term or va( ^tion, (h) and all such rules, excepting rules t i^ .A 
 
 shall be eight day rules, (d) and the party or parties named in any such 
 rules shall be bound to appear, plead, rejoin, join in demurrer, ifcc. 
 within the time mentioned in such rules respectively, but the Court rr 
 a Judge may extend the time mentioned in any such rules in their or 
 his discretion ; (c) Provided that nothing in this rule shall affect or 
 restrict any right, privilege, or prerogative now enjoyed or possessed 
 by the Crown. (/) 
 
 EXTRY OP SATISFACTION' ON ROLL, (j) 
 
 (w) See note w to preceding rule. 
 
 (a) Taken from our Rule No. 53 of II. T. 13 Vic. 
 
 (6) Tiiis rule must be read in connection witli Con. Stat. U. 0. cap. 21— that 
 every commission, extent, writ or other process issued, d:c. may be tested, made 
 returnable and bo returned on any day certain in term or vacation, to be named 
 iu such commission, extent, writ or other process: section 1; and that at tlie 
 return of any such commission, extent, writ, or other process, the like rules may 
 be given, and such other proceedings had, and such subsequent writs ami pru- 
 cess issued at any time in vacation, as may be given, had, or issued in term time ; 
 section 2. It is by the same Statute provided that it shall and may be lawful 
 for the Judges of the Superior Courts of Common Law in Upper Canada, Ac, 
 to make all such general rules and orders for the regulation of the plcadins;^ a:id 
 practice on sucli informations, suits, and other proceedings, and may frame siieh 
 writs and forms of proceedings as to them may sccni expedient: section 8; ia 
 order that the procedure and practice in informations on suits and other prnceei' 
 ings instutcd on belialf of the Grown, Ac, should be assimUattd as marly as may 
 be to the course of practice and procedure now ia force iu actions hdveeii suiiji/.i 
 and fulijcct. 
 
 (c) Which are in general four day rules: Tidd Prac. 1141. 
 
 (d) All such, were formerly four day rules: West on Extents, 317. 
 
 {«) Court or a Judge — relative powers, see note w to section 48, C. L. P. Act. 
 
 (/) TIio Crown has various prerogatives iu replying to its defendants traveric 
 or plea : Chit. Prerog. 369. 
 
 ((?■» When plaintiff's judgment is satisfied in order that defendant may not be 
 harassed a second time oa the satae account, it ia necessary that satisfiction be 
 
'n 
 
 II. 64] 
 
 TRINITY TERM, 185G. 
 
 667 
 
 64. (A) In order to .acknowledge satisfaction of a judgment, it shall 
 be requisite only to produce a satisfaction piece in form as heraiaafter 
 mentioned, (t) and such satisfaction piece shall be signed by the party 
 or parties acknowledging the same or their personal representatives, 
 and their signatures shall be witne,':sed by some practising attorney, (J) 
 expressly named by him or them, and attending at his or their request, 
 (1-) to inform him or them of the nature and effect of such satLsfaction 
 piece before the same is signed ; (/) which attorney shall declare himself 
 in the attestition thereto to be the attorney for the person or persons so 
 signing the same, (m) and state he is witness as such attorney (pro- 
 vided that a Judge at Chambers may make an order dispensing with 
 such signature under special circumstances, if he think fit) j (n) and 
 in cases where the satisfaction piece is signed by the personal represen- 
 
 intcred on the judgment roll: see Lambert Parnell, 15 L. J. Q. B. 5.5; Simpson 
 V. Jliinley et al, 1 M. & g. 695 ; Coombe v. Sansom, 1 D. «fe R. 201 ; Voe d. J)rax 
 V. Filliler, 11 M. tfe W SO; Crafts v. Wilkinson, 4 Q. B. 74 ; Ward v. Broomhead 
 a al, 1 Ex. 726. An order to enter satisfaction will not bo made though dcien- 
 datit swear that tlie judgment is satisfied if tlie plaintiff deny the fact, and it be 
 nut otliLTwise dear that the judgment is in truth satisfied : Lewine et al v. Sav( ge, 
 3 U. C. L. J. 89. 
 
 (/<) Taken from Eng. R. G. No. 80 of H. T. 1853, the origin r.i wliich was R. G. 
 of E. T. 7 Vic. : 5 Q. B. 8^2. The object of the rule is to make it necessary fur 
 l>laintitt' lilmself to sign a satisfaction piece; but before doing so to see that he 
 ij well infurmed as to the eff'ect thereof. Many of tlie requirements of the rule 
 resi'iiihle those contained in Hule No. 26 as to cognovits and warrants of attorney, 
 to which references are liereafter made. 
 
 (i) Where an Act of Parliament or rule of Court expressly provides that a 
 thuig is to be doiiL' in a given form, that form must be ciosdy followed : see 
 Warrm v. Love, 7 Dowl, P. C. CU2 ; Codringlon v. Curletvis, '.< Dowl. P. C. 968. 
 
 (;') See note t to R. G. pr. 26. 
 
 {k) See note j to R. G. pr. 26. 
 
 (/) See note k to R. G. pr. 26. 
 
 (m) See notes m, I, and n to R. G. pr. 26, 
 
 (n) Before a judge will under any circumstances c!ispen80 with the .^igiiature 
 of plaintiff, clear proof of satisfaction must be adduced. Where the plaiutifT 
 was abroad, an affidavit of the sheriff's officer that lie had levied the amount 
 was lii.'ld insufh';ient unless accompanied with an affidavit of the plaintiffs attor- 
 ney to the same effect: De Bastos \. Willmott, 1 Hodg. 15. So where ])laintiff 
 was dead, and no administration had been taken out, an affidavit of the defendant's 
 attorney that the plaintiff had been paid in full was held of itself insufficient : 
 Speach v. Stade, 8 Moore, 461. So where four out of five plaintiffs consented to 
 Eati^faetion being entered, but the fifth was abroad and could not be found, tlie 
 npiilication failed, thougli the attorney of the fifth assented to satisfaction : Davis 
 dal V. Jones, 5 Dowl. P. C. 503. In one ca. o in Uj)per Canada where plaintiff 
 was resident abroad, the Court relaxed llie rule under consideration in favour of 
 a satisfactii-n piece signed by his attorney ; rawson el al v. Wightman, 2 U. C. 
 42 
 
 ¥ 
 
 m 
 
 '^ 
 
Pit ' ' 
 
 4 
 
 ^. 
 
 
 ifr H" 
 
 
 r,t 
 
 li , M ;.; 
 
 658 
 
 REGUL.TE GENEBALE8 AS TO PRACTICE. 
 
 [R. 05. 
 
 tative of a party deceased, his representative character shall be provi d 
 by the production of tho probate of the will, or of the letters of adminis- 
 tration, to the officer in custody of the judgment roll, (o) 
 
 Form of Satis/action Piece. 
 In the 
 
 day, the day of A.D. IS : to wit : 
 
 Satisfaction is acknowledged between plaintiff, and defen- 
 
 dant, in an action for £ and costs. And do hereby expressly 
 nominate and appoint , attorney-at-law, to witness and 
 
 attest execution of this acknowledgment of satisfaction. 
 
 Judgment entered on the day of in the year of our 
 
 Lord, 18 . Roll So. 
 
 Signed by the said in the presence of ' 
 
 me of one of the attorneys of the 
 
 Court of . And I hereby declare myself 
 
 to be attorney for and on behalf of the said 
 expressly named by and attending at request 
 to inform of the nature and effect of this acknow- 
 ledgment of satisfaction (which I accordingly did 
 before the same was signed by ). And I also 
 
 declare that I subscribe my name hereto as such 
 attorney. 
 
 65. (?') Every satisfaction piece must be entered in the principal 
 office of the proper court at Toronto, (g) and every deputy clerk 
 
 L- J. 1 84. So where plaintiff being abroad, a letter of recent date fully author- 
 ising his attorney to settle the suit was produced : Rudall v. Hard et al, 3 U. C. 
 L. J. 14. So also where plaintiff was a resident of Lower Canada, ami the 
 omount of the judgment small : The Bank of Montreal v. Cronk et al. lb. 32. 
 So where the attorney produced an express authority from his client, the plain- 
 tiff, who resided in Lower Canada: Darling v. Wright, lb. 50. If the satisfaction 
 be executed in Lower Canada, and attested by a practising attorney of that 
 section of the Province, the signature of such attorney should be verified by a 
 certificate of one of the judges of Lower Canada, or by an 8ffid.ivit made before 
 a comn.losioner for taking affidavits appointed under Stat. 12 Vic cap. 77: ilou 
 V. Dayhj, 3 U. C. L. J. 74, per McLean, J. 
 
 (o) It is not said that probate shall be filed with, but produced to the officer 
 in custody of the judgment roll. The object of doing so is to prove tlio repre- 
 sentative character of the person who assumes to sign as " the personal repre- 
 sentative of a party deceased." 
 
 (j9) This rule is original. 
 
 {q) Proper court, i. e. the court in which the suit has been instituted and pro- 
 ceedings had. 
 
 {Signature) 
 
 the above named 
 
 plaintiff. 
 
 Date. 
 
[R. 05. 
 
 1 be proved 
 of adminis- 
 
 to wit ; — 
 
 defen- 
 
 by expressly 
 
 witness and 
 
 tion. 
 
 3 year of our 
 
 Sljnaturr:) 
 above named 
 plaintiff. 
 
 te. 
 
 the principal 
 deputy clerk 
 
 ate fully nuthor- 
 rdetal, 3 U.C. 
 !anada, and the 
 
 k et aL lb. 32. 
 client, tlie plain- 
 
 the satisfaction 
 ittorney of that 
 
 je verified by ft 
 ivit made before 
 
 .0. cap. ( ( : 
 
 J/OJI 
 
 id to the officer 
 
 prove tlio rt'pre- 
 
 peruouul rcpr*-'- 
 
 tituted and pro- 
 
 Rs, 6G-68.] 
 
 TRINITY TERM, 1856. 
 
 '.in 
 
 659 
 
 of tbe Crown shall transmit the judgment roll and papers belonging 
 thereto for that purpose, upon the satisfaction piece being exhibited 
 to him, (r) unless such roll shall liave been previously transmitted 
 uuder the direction of the Common Law Procedure Act, 1856, section 
 fifteen, (.s) 
 
 BAILABLE PROCEEDINGS AND BAIL. (/) 
 
 66- (m) Where the defendant is duscribed in the writ of capias or 
 affidavit to hold to bail by initials, or by wrong name, or without a 
 Christian name, the defendant shall net for that cause be discharged 
 out of custody, (v) or the bail bond be delivered up to bo cancelled on 
 motion for that purpose, if it shall appear to the Court that duo dili- 
 gence has been used to obtain knowledge of the proper name. 
 
 67. (w) An action may be brought upon a bail bond by the Sheriff 
 himself in either Court, (a;) 
 
 (r) Upon the satisfaction piece being exhibited to him, <fcc., which it is presumed 
 means, upon the satisfaction piece (regularly signed and attested) being exhi- 
 bited, <fec. 
 
 («) See notes to sections 243, 245, C. L. P. Act. 
 
 (0 For a review of the practice as to bail in civil cases, see notc^ to section .3^, 
 C. L. P. Act. 
 
 («) Taken from Eng. R.G. No. 82 of H.T. 1853, the origin of which was Eng. 
 R. G. No. 32 of U. T. 2 Wm. IV. : Jervis N. R. 67. 
 
 (v) Ecforo Eng. R. G. No. 32 of H. T. 2 Wm. IV., a defendant arrested, if 
 summoned, might be discharged out of custody, and have the bail b(ind delivered 
 up to be cancelled, on entering a common appearance. It was at first doubted 
 wliither the rule did not deprive the defendant of his remedy : Galium v. Leeson, 
 ? Dowl. P. C. 381 ; but it was afterwards settled that ho might still do so, unless 
 the plaintifif couid show that he had used due diligence to ascertain the right 
 name of the defendant: Ladbrook v. Phillips, 1 H. & W. 109 ; Rosset v. Hartley, 
 7 A. & E. 622, n. In determining whether or not a case falls within the rule, the 
 court will have regard to various circumstances ; and if it appear tliat the defen- 
 dant countenanced the plaintiff in calling him by a wrong name, or was likely to 
 abscond if inquiry were made of him personally, it will not interfere to the pre- 
 judice of plaintiff; see Hicks v. Marreco, 1 C. «fe M. 83; Newton v. Maxwell, 
 1 Dowl. P. C. 315; Lyon v. Walls, 2 M. & Scott. 393; Lindsay v. Wells, 3 Bing. 
 N. C. 777 ; Finch v. Cocken et al, 2 C. M. & R, 196. 
 
 (tt) Taken from Eng. R. G. No. 83 of H. T. 1853, the origin of which was Eng. 
 R. G. No. 28 of H. T. 2 Wm. IV. : Jervis N. R. 66. 
 
 (r) Before thd Eng. R. G. of "Wm. IV., the sheriff could only bring an notion 
 in the Queen's Bench upon a bond taken upon process in that court: Donally v. 
 Barclay, 8 T. R. 152; but it was otherwise in the English Court of Common 
 Pleas; Newman et al v. Faucitt, 1 H. Bl. 631; and Exchequer; Yorke v. O'/den <t 
 al, 8 Price, 174. The rule only enables the " sheriff himself" to bring the action 
 in either court. His assignee, it would seem, must still, as formerly, bring the 
 actiou in the court from which process issued upon which the bond was taken. 
 
 
 :;^ \ ^ 
 
660 
 
 REGFUL.E GENERALES AS TO PRACTICE. [Rg. 68-72. 
 
 
 68. (ji) In all cases where the bail bond shall be directed to 
 stand as a security, the plaintiff shall be at liberty to sign judgmect 
 upon it. (z) 
 
 69. (a) Proceedings on the bail bond may be stayed on payment of 
 costs in one action, unless sufficient reason be shown for proceeding in 
 more. (6) 
 
 70. (c) When bail to the Sheriff becomes bail to the action, the 
 plaintiff may except to them though he has taken an assignment of 
 the bail bond, (d) 
 
 71. (c) A plaintiff shall not bo at liberty to proceed on the bail 
 bond pending a rule to bring in the body of the defendant. (/) 
 
 73. (^) No rule shall be drawn up for setting aside an aitachment 
 
 (y) Taken from Eng. R. G. No. 84 of H. T. 1 8,53, the origia of which was Enf, 
 E. G. No. 29 of H. T. 2 \Vm. IV. : Jervis N. R. 66. 
 
 (s) In the English Court of Common Pleas, though it was at one time ustinl to 
 sign judgment on staying proceedings in an action on a bail bond, when thu bail 
 consented that it should stand as a security, yet it was afterwards held tliat the 
 bail in such a case were at liberty to plead to the action on the bail bond, and 
 were consequently entitled to a demanc^ of plea before judgment could be signed 
 against them: see Tidd's Prac. 304, 806. 
 
 (a) Taken from Eng. R. G. No. 86 of H. T. 1853, the origin of which was Eng. 
 E. G. No. 30 of H. T.''2 Wm. IV. : Jervis N. R. 66. 
 
 (i) Where several actions on a bail bond were brought and carried to verdict, 
 the English Court of Exchequer held that it was too late to apply to stay the 
 proceedings upon payment of the costs of one action tmly : Johnson v. Macdonuld, 
 2 Dowl. P. C. 44. 
 
 (c) Taken from Eng. R. G. No. 8« of H. T. 1853, the origin of which was Eng. 
 R. G. No. 15 of H. T. 2 Wm. IV: Jervis N. R. 62. 
 
 {d) Vrhere bail below became bail above, no exception could be taken m the 
 English Court of Qu'~:!n'8 Bench after an assignment of the bail bond : Fish v. 
 Horner, 7 Mod. 62. But in the Common Pleas the same bail might be exii'iited 
 to after an assignment of the bail bond : Claxton v. Hyde, Barnes, 90. This rule 
 follows the practice of the Common Pleas. 
 
 {e) Taken from Eng. R. G. No. 87 of H. T. 1853, the origin of which was Eng. 
 R. G. No. 23 of H. T. 2 Wm. IV: Jervis N. R. 64. 
 
 (/) This has been the practice of the courts from an early period : WJuttle v. 
 Oldaker et al, 7 B. & C. 478 ; Blackford v. Hmvkius, 1 Bing. 181. TI e objert of 
 the rule to bring in the body is for the purpose of compelling the sheriff to have 
 the defendant in custody or to put in ball, so that the plaintiff can declaru and 
 proceed with the suit to judgment. But plaintiff may waive it if he pleases, 
 and proceed with his suit if he can, without the defendant being in actual cus- 
 tody or putting in special bail: see Dusolme v. Hamilton, 16 U. C. Q. B. 1S3; 
 8. c. lb. 574 ; Eeffinc v. The Sheriff of Perth, 2 Prac. R. 298. 
 
 {q) Taken from Eng. R. G. No. 68 of H. T. 1853, the origia of which was E.G. 
 Q. B. of M. T, 69 Geo. III. 
 

 i'^ 
 
 Ks. 73, 74.] 
 
 TRTNITY TERM, 1856. 
 
 GGl 
 
 liich was Ed<;. 
 
 vbich was Eng, 
 
 ivhich was Eng. 
 
 ^hlcb was R. G. 
 
 regularly obtained against a sheriff for not bringing in the body (Ji) or 
 for staying proceedings regularly commenced on the assignment of any 
 bail bond, unless the application for such rule shall, if made on the 
 part of the original defendant, be grounded on an affidavit of merits, (i) 
 or if made on the part of the sheriff, bail, or any officer of the sheriff, 
 be grounded on an affidavit, showing that such application is really 
 and truly made on the part of the sheriff, or bail, or officer of the 
 sheriff, as the case may be, at his or their own expense, and for his 
 or their indemnity only, and without collusion with the original defen- 
 dant. (7c) 
 
 73. (0 Whenever a plaintiff shall rule, the sheriff on a return of 
 ccpi corpus to bring in the body, (m) the defendant shall be at liberty 
 to put in and perfect special bail at any time before the expiration of 
 such rule, (n) 
 
 74- (o) In case a rule for returning a writ of capias shall expire in 
 
 (/() "Where the plaintiff at the inatance of the sherifTa officer forbore for ten 
 dajs to enforce an attachment, it was held that the shervif was not diechargcd 
 by such indulgence : PojAe el al v. Wyatt, 15 East. 216. 
 
 (i) The application to stay proceedings cannot in general be made until ba;i 
 is perfected : HcaUi v. Gwlei/, 4 Moore, 149. If the application be made at the 
 instance of the bail the court will not impose terms on the defendant : Gale ct al 
 V. llayworth, 6 Dowl. P. C. 323. 
 
 (/■) The object of this rule is throughout to prevent collusion between the 
 party applying and the original defendant. Plaintiff obtained an order to hold 
 the defendant to bail in an action for seduction for £50. The defendant diil not 
 put in special bail and the sheriff was ruled to bring in tlie bodj- and an attach- 
 nuiit issued against him. Tlie sheriff applied on aftidavit to be relieved on ]iay- 
 iiiint of the £nO and costs, held that the application must fail because he had not 
 iicgatived collusion between himself and the defendant: Ilejina v. 27ie Ulurirf' of 
 Uasthign, 1 Cham. R. 230. 
 
 (/) Taken from Eng. R. O. No. R9 of H. T. 1853, the origin of the latter part 
 of which was Eng. R. G. No 23 of H. T. 2 Wm. IV : Jervis N. R. 64. 
 
 ())i) This is a side bar rule: see K G. pr. 102; and should be issued promptly: 
 ./lox V, Sheriff of Middlesex, 1 Dowl. P, C. .'iS. But cannot be i.ssued befme 'lie 
 dny oil whicli tlie writ is returned or before the time for putting in bail lias 
 exjiircd: llutchins v. Ilird, 6 T. U. 40; Folkr\. Marsden, 8 East. £25; r<iiu-hie 
 T. Liiven, 4 M. & S. 427. It cannot issue after judgment recovered against the 
 sliM'ilf for an escape: Bonoick v. W(dton, 2 B. & Al. 623; nor after disciiarge 
 of the defendant by order of the jdaintiff; 76. The rule nlicn issued must be 
 ?''rvtd within a reasonable time: Hex v. T/ce Sheriff of JJiddlaex, 1 Dowl. P. 
 I'. .-.:i. 
 
 (m) The sheriff obeys the rule by merely showing that defendant is in his 
 ou^tiidv; Jfacl.ecd y. J/(t/-S(/c7(, Barnes, 32 ; or that bail has been put in: llezw 
 Hhu'iff of Middlesex, 8 T. R. 464. 
 
 (o) Taken from Eng. R. G. No. 90 of H.T. 1853, the oriyiu of which wus Eng. 
 ?v. G. of 11. T, 3 Wja. IV ; Jervis N. R. 103. 
 
 
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 ^^jigm 
 
 tt 
 
 ilSli 
 
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662 
 
 REaULiE GENERAIiES AS TO PRACTICE. [Rg 75^ 7(J 
 
 mm ! 
 
 Is S ."' 
 
 ftlx, ' 
 
 
 
 vacation, and the sheriff or other oflScer (p) having the return of such 
 writ shall return cepi corpus thereon, a rule may thereupon issue 
 requiring the sheriff or other officer within the like number of days 
 after the service of such rule, as by the practice of the Court is pres- 
 cribed with respect to rules to bring in the body, issued in term, (q) 
 to bring the defendant into Court, by forthwith putting in and per- 
 fecting bail above to the action, and if the sheriff or other officer shall 
 not duly obey such rule, an attachment shall issue in the foliowin" 
 term, for disobedience of such rule, (r) whether bail shall or shall not 
 have been put in and perfected in the meantime, (s) 
 
 75. (0 Notice of more bail than two shall be deemed irregular, 
 unless by order of the Court or of a Judge, (m) 
 
 76. (y) The bail ofwhom notice shall be given, shall not be changed 
 without leave of the Court or a Judge, (lo) 
 
 (p) " Or other officer," i. e. Coroner, <fec. 
 
 {(]) The courts ought as far as possible to assimilate the practice in vacation 
 under this rule to that which i>revailed in England before the passing of the 
 rule of 1 M. T. 3 \Vm. IV: Jiex v. Sheriff of Jisscx, 1 M. & W. 721, per Alder- 
 son, B. In vacation, if the plaintiff mean to make the sheriff liable for interme- 
 diate damages in consequence of his default, he should give the sheriff notice to 
 that effect, and then should receive such damages as may occur between the 
 notice and the notice which the sheriff must give when the defect has been cured : 
 Ih. The expense of the notice to the sheriff will be part of the costs of the 
 attachment obtained against the sheriff during the next term : Jb. 
 
 (,s) If bail be put in and i^erfected after the contempt and before the issuing; 
 of the attachment under the above rule, the court will set aside the attachment 
 upon payment of costs: liegina v. Sheriff of Middlesex, 2 Dowl. P. C. 432. 
 
 [t) Taken from Eng. R. G. No. 91 of H.T. 1853, the origin of which was Eng. 
 R. U. No. 18 of H. T. 2 Wm. IV: Jcrvis N. 11. 6,3. 
 
 (m) "Where the sum is large the judge will allow several to become bail in 
 different sums amounting together to the required amount: Anon, 13 Price, 448; 
 Easter V. Edwards, 1 Dowl. P. C. 39. 
 
 ((,') Talten from Eng. R. G. No. 92 of H. T. 1853, the origin of which was Ling. 
 R. G. No. 5 of T. T. 1 Wm. IV: Jervis N. R. 42. 
 
 (?o) Bail cannot be changed without a sufficient reason, and then only upon 
 payment of costs and putting plaintiff in the same situation as before : WhiklimJ 
 V. Min7i, 2 G. & J. 54 ; E/Uott v. Gnttmdgc, 6 Dowl. P. C. 255. An expectation 
 that a cause would be settled is not a sufficient reason for change of bail: 
 Orchard v. Glover, 1 Dowl. P. C. 707. In Stroud v. Kenny, Taunton, J., decided 
 that the English rule of Wm. IV. applied to bail for pi-isoners in custody and 
 rejected bail who had been changed without leave: KB. 17th April, 18:i2, -'/*'•; 
 Jervis N. R. 43 ; but in Bird's case, 2 Dowl. P. C. 583, Patteson, J. held that iJ 
 did not. The rule applies to bail put in by the sheriff: Rex v. Sheriff of Exht, 
 2 Dowl. P. C. 782 ; as well as to that put in by a party : Jones v. Vcs'tris, 3 Biug. 
 N. C. G77. It has been held not to be necessary to give a four davs' notice of 
 added bail : Pemfs Bali, 1 Dowl. P.O. 564 ; luyy. Mackyntire, 5 Dowl. r,C..54S 
 
 
,?:. .:ii 
 
 (vliich was Eng. 
 
 which was Eng. 
 
 Rs. 77-80.] 
 
 raiNITY TERM, 1856. 
 
 663 
 
 77. (x) No person or persons shall be permitted to justify himself 
 or themselves as good and sufficient bail for any defendant or defend- 
 ants, if such person or persons shall have been indemnified for so doinp; 
 by the attorney or attorneys concerned for any such defendant or 
 defendants. (?/) 
 
 78. {z) No attorney shall take any recognizance of bail in a case in 
 which he is cn.«ployed as attorney or agent for either parly. («) 
 
 79- (6) If any person put in as bail to the action, except for tho 
 purpose of rendering only, be a practising attorney, (c) or clerk to a 
 practising attorney or sheriff's officer, bailiff, or person concerned in 
 the execution of process, (d) the plaintiff may treat tho bail as a 
 nullity, and sue upon the bail bond as soon as the time for putting in 
 bail has expired, unless good bail be duly put in, in the meantime, (c) 
 
 80. (/) When bail which has been put in, in the country, (</) is to 
 be justified in Court, (h) the bail piece, with the affidavit of the due 
 
 But wliero the order to change the bail was not obtained until the day on wliich 
 the bail were to justify, tlie court tjave tlie ))liiintitf time to incjuire into their suf- 
 S^ieiicy: Perry's Bail, 2 C. <t J. 475. If the order be ijranted upon payment of 
 costs, the costs must be paid before tho bail justify : Jourdain v. Gunu, 2 Ty r. 
 41)1. 
 
 (.(■) Taken from Eng. R. G. No. 93 of II. T. 1853, tho origin of which was Rule 
 11. T. 37 Geo. Ill: 1 B. A P. 103. 
 
 (-y) This has been for some time tho well understood practice: Oreensill v. 
 Ihplcy, 1 B. &. r. 103 ; Anon. 1 Dowl T. C. 1 ; Hunt v. lHaijukre, 4 Biiig. 583. 
 It lias iiowever been held no objection to bail that they are indemnified by the 
 sheritFs officer: Chick'i case, M.T. 56 Geo. III. Nov. 17, 1815, 1 Chit. Rep 714 n. 
 
 (2) Tliis rule appears to be original, though simply declaratory of a previ- 
 ously existing practice. 
 
 («/) An affidavit to hold to bail before action commenced maybe sworn before 
 plaintiff's attorney: Brett v. Sniiih, 1 Prac. R. 3u9 
 
 (/-) Taken from Eng. R. G. No. 91 of H. T. 1853, the origin of wliieli was V.nj; 
 R. G. No. 13 of 11. T. 2 Wm, I\ : Jervis N. R. 62. 
 
 ((•) An attorney who had not practised for six years was allowed to justify 
 bail: Anon. E. t. May 16, 1815, 1 Cliit. Rep. 714 n. 
 
 (7) It was a rule of all tho English courts of common law tliat an atturnoy : 
 2 Doug. 466 n; or attorney's clerk; Bolo>/iu< v. Vnntrin, Cowp 828; hiin;/ v. 
 CnnilnU; 1 II. Bl. 76; Cornish v. Boss, 2 H. Bl. 349; whether articled or not; 
 Cakish V. Boss, 1 Taunt. 164 u. ; should not be bail to the action. 
 
 (f) A practising attorney or a clerk may be allowed to become bail to sur- 
 rciuler a defendant; 1 Chit R. 714, note a. 
 
 (/) Taken from our old Rule of T. T. 3 & 4 Wm. IV; Cam R. 4. 
 
 {(j) See note q to section 34 C. L. P. Act. 
 
 (h) See note q to section 34 C. L. P. Act. 
 
 
664 
 
 REnUL.K OENERALES AS TO PRAOriCE. 
 
 [R. 81. 
 
 L 
 
 
 
 I - 
 
 taking thereof, and the affiJavit of justification, (t) shall bo transmitted 
 by the deputy clerk of the Crown for the county in which they have 
 been filed to the principal office in Toronto, to be filed and produced in 
 court, upon the laotiun fur allowance, on proper notice being given to 
 such deputy clerk to transmit the same. (J) 
 
 81. (fc) If the notice of bail shall be accompanied by an affidavit of 
 each of the bail, according to the following form, (/) and if the plainlilT 
 afterwards except to such bail, he shall, if such bail are allowed, pay 
 the costs of justification ; and if such bail arc rejected, the defendant 
 shall pay the costs of opposition, unless the Court or a Judge thereof 
 shall otherwise order. (?«) 
 
 F(JKM OF A I'll DAVIT OF JUSTIFICATION OF HAIL. (») 
 
 Ja the 
 
 Between A. E., Plaintiff, and C. D., Defendant. 
 B. B., one (o) of the bail for the above named defendant (p) makcth 
 
 (»■) Aa to which, see 11. G. \n\ 81. 
 
 (y) If bail bo put in niul justified before a commissioner, nny justioe (if tho 
 court from wlilcli procofs issued, or of eitlicr of the superior courts sittiiv;- in 
 clmtiibci's, uj)on recuijjt of tlie saiii bail piece or recogiiiziince from such c 'ininid- 
 siotier, may, if lie sliali tbinli tit (after proof of clue notice of justitiealion or upon 
 cause sliown), order a rule to issue for tlie allowance of sueli bail; C.L.I'. Act, s. o6. 
 
 {k) Taken from Eno-. R. G. No. 08 of 11. T. 1853, tho origin of wliich was Eiig. 
 R. G. No. 3 of T. T. 1 Wm. IV : Jervis N. R. 40. 
 
 {'■) This form must be strictly followed: Miller's Bail, 5 Dowl. P. C. 602; 
 Wdkr's Bail, « Dowl. P. C. 312. 
 
 (m) Tlie object of the affidavit being to enable plaintiflF to sntisfj' himself ns 
 to tlie bail offered if the affidavit bo vague, he may obtain furtlier time to make 
 inquiries: Anon., 1 Dowl. P. C. 159. Tlie court may allow an ameiidiiieiit: 
 Warren v. De Burgh, 7 Dowl. P. C. 96 ; and tliough the bail may, if sufficient, 
 justify: De Bodc's Bail, 1 Dowl. P. C. 368; Anon. lb. 126; Popjoi/'s lUiil, 
 o Dowl. P. C. 170; tho defendant will not be allowed tho costs of justification: 
 IhnUrn Bail, 3 Dowl. P. 0. 423 ; Miller's Bail, 5 Dowl. P. C. 602. The rule is, 
 ttiftt if the notice of bail be accompanied by an affidavit according to the /nrm 
 tliereti) subjoined, the jdaintiff, if the bail be allowed, shall pay the costs of justi- 
 fieation: J/j. if the aftidavit be not in that form — and tho better way is not to 
 lieviate from it — the defendant cannot have tho costs of justification, though his 
 bail be sutHcient: lb, 
 
 (n) See note I, stipra. 
 
 (o) Though the affidavit is in form several, the bail may justify by a joint 
 aHidavit: Anon. 1 Dowl. P. C. 115. 
 
 (f>) By G. 11. pr. 109, it is provided tliat " the addition and true place o<" abode 
 ni" eiurif j'erson making an affidavit shall be inserted therein." Though the form 
 (■i atliiliivit omits the addition of tlie deponents, it is only proper that it should 
 ■Lie inserted : Treasure's liuil, 2 Dowl. P. U. OTO; Brown's Bail, 5 Dowl. P. C, 2:ii'. 
 
 
[R. 81. 
 
 ! tTanHmitfed 
 
 ;b tlioy liave 
 
 proJueotl in 
 
 ing given to 
 
 n fiffiJuvit of 
 f the plaiiitifT 
 allowed, pay 
 lie defendant 
 ud)^o thereof 
 
 ») 
 
 it. 
 (p) makcth 
 
 y justice of tl>o 
 jurtrt sittin;;' in 
 m snoh c >Tinni:i- 
 ticatioii or upon 
 I'.L.r. Act, s. ;J6. 
 
 vliich was Tng. 
 
 iwl. P. C. 602; 
 
 sfy himself as 
 
 time to uiake 
 
 nnit'udniL'iit : 
 
 ^ , if sutiieic'ut, 
 
 "I'opjoi/'s Hail, 
 
 jf justitication: 
 
 The rulu is, 
 
 ng to the form 
 
 costs of justi- 
 
 way is not to 
 
 on, though liis 
 
 *y 
 
 3tify by a joint 
 
 '\ 
 
 ilacc of nhoile 
 imif^li tlu' form 
 
 that it sliould 
 )o\vl. 1'. C. 2-ja 
 
 R. 81.] 
 
 TRINITY TKUM^ 1850. 
 
 605 
 
 oath and saith, {q) that he ia a housekeeper (r) (or freeh(ddcr, as the 
 case viaiy he), residinj* at {give particular description of the ■place of 
 
 residence,) (s) that ho is worth property to the amount of £ 
 
 {(louble the amount sworn to) over and above what will pay all his just 
 dtbtfj, (;) (if bail in any other action, add, and every other sum for 
 which ho ia now bail), that he is not bail lor any (w) defendant, except 
 ill this action (or if bail in any other action or actions, add, except 
 for C. D., at the suit of E. F., in the Court of , in the sum of 
 
 £ , for G. II., at the suit of J. K., in the Court of , in the 
 
 sum of £ , specifying the several actions xoith the Courts in %ihich 
 
 thn/ are brought, and the sums in which the deponent is hull), (v) 
 Sworn, (to) (&c., as usual.) (x) 
 
 (q) TIlis is not in necordanco with R. G. j)r. 112, which provides tliat " cvn-y nffi. 
 davit sworn within tiiis Province . . . ahull be drawn up in the first jicrsoii, and 
 ihitll ]){> divided into jmragraphs, itc. ;" but the object of that rule was to prevent 
 prolixity in aifidavits, when prepared by suitors or their attorneys. Tlie juilges 
 Imviui^ themselves the framing of this form, the objection against wiiich the rule 
 was dinjcted cannot arise. 
 
 (r) llouaekceper. There appears to be some difTerence between " householder" 
 ami " liousekeeper : " Sec Anon. 1 Dowl. P.C. 127 ; Gablcnlz'a Hail, 1 IJ. & W. 111. 
 
 (s) Where the deponent described himself as a housekeeper but did not go 
 on to say where he resided, the affidavit was held insufficient; J/euld's Bail, 
 3 Dowl. P. C. 423 ; Welsh v. Lyviood, 1 Bing. N. C. 258 ; Wilson' a Bail, 2 Dowl. 
 P.C. 431. 
 
 [t) As to what is n sufficient comjiliance with this part of the affidavit: eee 
 L'lnyan's Bail, 3 Dowl. P. C. 85; Hunt's Bail, 4 Dowl. P. G. 272; Stevnia v. 
 illlhr, 2 ]M. A W. 368; Miller's Bail, 5 Dowl. P. C. 602; Edmunds v. Keats, 
 C Dowl. P. C. 3.59; and as to the eff"ect of non-conipliarce: see Hutchinson's 
 Bail, 1 ])owl. P. C. 571; Simpson's Bail, lb. 605; Jiot/ers v. J/ncs, lb. 704; 
 Thompson's Bail, 2 Dowl. P.C. 50; Worlison's Bail, lb. 53; Harrison's Bail, 
 lb. 108; Naylor's Bail, 3 Dowl. P.C. 452; /'e««on'« iJai/, 4 Dowl. P. C. 027 ; 
 Carter's Bail, 5 Dowl. P. C. 577; Edmunds v. Keats, 6 Dowl. P. C. 359 ; ^Yeller^'t 
 Bail, lb. 312 ; see also R. G. pr. 84. It is not a sufficient ground to reject one of 
 two bail as insufficient that one of his creditors agreed to comi>ound for his debt 
 for two shillin,^3 in the pound: Baniell v. James, 2 Prae. R. 195. Tiie inquiry 
 must be as to the sufficiency of property of and not as to the character of the 
 proposed bail, whether brothel house keepers, Ac. : see Gouge's Bad, '6 Dowl. 
 320; Anon. 1 Dowl. 160; Hatfield's Bail, 2 Chit. Rep. 98. 
 
 («) In a case where the deponent stated that he was not ball for " any." omit- 
 ting; "defendant," the affidavit was still held suflicieut: Smith's Bail, 1 Dowl. 
 P.C. 514. 
 
 (v) The form of affidavit in the Eng. R. G. No. 98, hero goes on to specify th** 
 property upon which the bail justify ; thus, " that deponent's jiroiierty to the 
 amount of, Ac. consists of," Ac.: see Anon. 1 Dowl. P. C. 159; Lnni/nn's Bail, 
 SI'owl. P. C. 85; Cooper's Bail, lb. 692; Pierpoint v. Brewer, 3 D. & L. 487. 
 
 («•) The affidavit of justification cannot bo sworn beforo defendant's attorney: 
 Eoijlex. Wilcox, 2 O.S. 113. 
 
 (•r) In every affidavit made by two or more deponents, the names of the several 
 porsous making such affidn'.it must be written in the jurat: R. G. pr. llu. 
 
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 BEaUL/E QINKRALBS AB TO PBAOTIOB. [Rs. 82, 83. 
 
 83- (v) If ^^6 plaintiff shall not give one day's notice of exception 
 to the bail by whom such affidavit shall have been made, («) the recog- 
 nizance of such bail may be taken out of court without other justifica- 
 tion than such affidavit, (a) 
 
 83- (&) Where notice of bail shall not be accompanied by such 
 affidavit, (c) the plaintiff may except thereto within twenty days next 
 after the putting in of such bail, (d) and notice thereof (e) given in 
 writing *o the plaintiff or his attorney, (/) or where special bail is 
 put in before any commissioner, ((/) the plaintiff may except thereto 
 within twenty days next after the bail piece is filed (K) in the proper 
 
 .35 
 
 
 (y) T'l' -n from Eng. R. O. No. 99 of IT. T, 1863, the origin of which wna R.G. 
 No. 4 of 1. 1 Wm. IV: Jervis N. R. 42. 
 
 (r) Whe.-o bail to the sheriff becatno bail to the action, the plaintiff may 
 ezi< :pt, tn H'ljl hi har taken an assignment of the bail bond: R. G. pr. 7<>. If tho 
 r'<»!.:tiir do • ^ ^evi 'O tl.a bail in proper time he waives all objections to the 
 regular: I V o" ' , iiceedings: Jiell y, Oate, 1 Taunt. 162. 
 
 {a) Tiiin r-^e .' .es not apply where tho ball must have justified without excep- 
 tion hftil the rule not been made: Webb's Bail, 1 Dowl. P. C. 44 fi; Rex v. WiUon 
 tt al, 3 Dowl. P. C. 266 ; Itex v. The Sheriff of Middlesex, 4 M. A W. 629. In the 
 case of added bail no exception is necessary: Gregory v. Ourdon, Harni's, 74; 
 nor whi-re bail lias been put in after tiie proper time : Turner v. Cary, 7 East. 
 «07 ; -A'«n« v. Royera, 2 Chit. Rep. 108. 
 
 (A) Taken from Eng. R. G. No. 100, the origin of which is R. B. R. of M. T. 
 
 3 Atiii : 1 iSalk. 98. 
 
 (e) i.e. Affidavit of justification : see R. G. pr. 81. 
 
 (d) When the last of the twenty days happens on a Sunday the expiption 
 may be regularly made on the following Monday : Oldham et al v. BurrtU, 
 V T. R. 26. 
 
 (e) And notice thereof, Ac." Entering an exception without serving a cor 
 ro8{Hmding notice is nugatory : Salchwell y. Lawei, Barnes, 88 ; Gotwell v. Hunt, 
 lb. lUl. The notice is usually served immediately after the entry of the excep- 
 tion : Oldham et al v, Burrell, 7 T. R. 26. 
 
 (/) Ti>o notice of exception must not only be in writing : Cohn y. Davit, 1 
 n. Bl. 80, but bu correctly intitled both as to tho Court and the name of the 
 cause : Anon. 1 Chit. Rep. 374 ; see also Harvey et al v. Moryan et al, 2 .Stark, 17. 
 Where a notice of exception was entitled " in the Lord Mayor's Court" instead 
 of " in t!io King's Bench," it was considered a nullity : Anon. 1 Chit. Rep. 374. 
 So a notice of exception not inlitled in any cause is a nullity : Rex v. Shenj 
 of Middlesex, Ih. 742. The circumstance of a notice not so intitled beint; 
 delivered with tho declaration will not aid the omission : lb. And pur Al)butt, 
 C. J., " The notice of exception must be a perfect instrument in itself, and the 
 mere delivery of a notice not intituled in any cause with a declarntioti is nut 
 auffiuient. We ou)^ht not to encourage a pluintitf under these circiiiu;itanc«!), 
 because the step he takes almost inevitably loads to some application to tiie 
 Court." 
 
 (j7) See note q to section 34 C. L. P. Act. 
 (A) See note d, tupra. 
 
CE. [Rs. 82, 83. 
 
 Rs. 84-86 ] 
 
 TRINITY TBRM, 1850. 
 
 m 
 
 'in of which was R. G. 
 
 office, (i) and notice thereof given as aforesaid; (J) and no exoeption 
 to bail shall be admitted after the time hereinbefore limited, {k) 
 
 84' (Ji) Affidavits of justiflcation shall be deemed insufficient, unless 
 they state that each person justifying is worth double the amount 
 sworn to over and above what will pay his just debts and over and 
 above every other sum for which he is then bail, (c) except when the 
 sum sworu to exceeds one thousand pounds, when it shall bo sufficient 
 for the bail to justify in one thousand pounds beyond the sum sworn 
 to. (rf) 
 
 8tS. («) It shall be sufficient in all cases if notice of justification of 
 bail be given two days before the time of justification. (/ ) 
 
 80. (g) In all oases, bail to the action shall be justified, when re- 
 quired, within four days afler exception, before a Judge at Chambers, 
 both in term and vacation. (A) 
 
 ch is R. B. R. of M. T. 
 
 («■) i.e. PuFBuant to R. G. pr. 80, 
 
 (/) See notes t and/, ante. 
 
 (k) See Bologne v. Vantrin, 2 Cowp. 828 ; Hugqint v. Bamhridge, Barnes, 81 ; 
 Ftnton V. liuggki, 1 B. A P. .S60; liez v. Sheriff 'of Surrey, 2 Eabt. 181 ; JSell v. 
 Gate, 1 Taunt. 162; Wallace v. Arrotetmith, 2 B. A P. 49. 
 
 (A) Taken from Eng. R. O. No. 101 of II. T. 1853, the origin of which was Eng. 
 R. G. No. 19 of II. T. 2 VVm. IV. : Jervis N. R. 03. 
 (c) See form to R. G. pr. 81. 
 
 ((/) If the affidavit be insufficient the bail may justify in person : Shave v. 
 Spode, 2 M. A. W. 42 ; but in such n case the defendant will not be entith-d to the 
 costs of justification : Stevens v. Miller, lb. 3fi8. If the sum for wliich the bail 
 is re<]uirL'd be very large, the Judge has a discretion to admit more than two 
 bail : R. G. pr. 76. 
 
 (c) Tnlten from Eng. R. G. No. 102 of H. T. 1863, the origin of which was Eng. 
 R G. No. 16 of U. T. 2 Wm. IV. : Jervis N. R. 63. 
 
 (/) The [notice ought in strictness to be served personallv "pon plnintiflTs 
 attorne}', or on some clerk or servant in his office: Saunder'e Bail, 1 Chit. Rep. 
 77; Fowltr'i Bail, lb. 78. Depositing it in a letter box is unavailable: lb.; 
 uuless the receipt of it be at a subsequent |>eriod : Saunder't Bail, lb. 77 ; Jamt- 
 ton' I Bail, lb. 100; Jonet' Bail, lb. 294; distinctly acknowledged by the 
 attornoy or some authorized clerk: lb ; see also Bailey v. Davy, Ih. 77, n. 6; 
 Amnviitnith v. Ingle, 3 Taunt. 284. The notice is as between the jjurtit'su waiver 
 of nny irregularity in the notice of exception: Cohn v. Davis, 1 II. HI. 80; 
 thnuirii it would not be a waiver with respect to the sheritT to prevent him from 
 ohjt'cting to the irregularity when ruled to bring in the body: Rogers v. Maple. 
 hack, lb. 106. 
 
 (.'/) Taken from Eng. R.O. No. 103 of II.T. IS.IS. the origin of which was Eng. 
 R. G. No. 17 of H.T. 2 Wm. IV. : Jervis N. U. 63 ; and Eng. R. G. 1 Vic. : lb. 163. 
 
 (hi) If one of the bail, from sudden illness or other unforeseen casualty, bo 
 nntibie to attend, it seems that the time may be extended: Oillbank's Bail, 
 9 D. «& R. 6 ; Owillim t. Uowet, 2 Chit. Rep. 107. A summons for the purpose 
 
068 
 
 REQULA 0BNEBALI8 A8 TO PRACTICE. [Rs. 87-89. 
 
 87. (0 Bail, though rejected, shall be allowed to render the prin- 
 cipal without enteriog into a freih reoognizanoe. (J) 
 
 8H. (k) When tho plaintiff proceeds by action on the recognizance 
 of bail, the bail shall be at liberty to render their principal at any time 
 within the space of eight days next after the service of the procesi 
 upon thorn, (/) but not at any later period, (m) and upon notice 
 thereof given, the proceedinp;s shall be stayed upon payment of the 
 costs of the writ and service thereof only, (n) 
 
 89- {'>) Bail shall only be liable to the sum sworn to ^^ihc nflidavit 
 of debt and the costs of suit, not exceeding in tho whc 'o tho amount 
 of their recognizance. ( p) 
 
 mAj bo obtained, and when obtained should contain a stny of procpodintrs: Ih. 
 When an order is obtained it aliould be served with a new nnticuof justitlcatioa: 
 yetetont Hail, 4 Dowl. P. C. 270. It sometimes happens that extcMiili-d tiino it 
 
 frautod nt the time of justification, owing to defects in tho affidavit or notice: 
 )rabhlt V. Denham, 2 Chit. Rei). 92. If one judge in chambers grout an order, 
 another will not interfere: Tomlinton v. Ilnrvey, lb 88. When an order in 
 issued the bail must justify, though no exception be entered by plaintiff: Tunur 
 T. Gary, 7 Eost. C07 ; Jfunn v. Hogtrt, 2 Chit. Rep. 108 ; Ktt v. Wilton el al, 
 8 Dowl. P. C. 266. 
 
 (i) Taken from Eng. R. G, No. 104 of H. T. 1853, the origin of which wns Eng, 
 R. G. No. 20 of H. T. 2 Wm. IV.: Jorvis N. R. 63, 
 
 (i) This was always the practice in the English court of Queen's Bonch : Ra 
 T. The Sheriff of Entx, 6 T. K. 633 ; see also J Chit. Rep. 446, n. a; from wliich 
 our proctice was adopted. Bail may render without justifying: Wiugint v. Sit- 
 phtnt, 6 East. 633; and if one of the bail only justify, the other may render: 
 Anon. 1 P. <b B. N. R. 138, n. Before render can bo made special bail niu^t b« 
 put in, cither by the defendant, the sheriff, or tho bail below: Bcrcher v. CoUon, 
 2 Str. 876 ; Taylor r. Evans, 1 Bing. 367 ; Uodgton et al v. Met, 3 A. A E. 765. 
 
 (*) Taken from Eng. R. G. No. 108 of IT. T. 1863, the origin of which was Eng. 
 R. G. No. 3 of T. T. 8 Wm. IV. : Jervis N, R, 104. 
 
 (/) Intervening Sundays are to be counted : Cruv*ll v. Green, 14 East. 687. 
 
 (m) No render can be allowed at a subfloqncnt period: Bird v. Atkins dal, 
 1 Dowl. P. C. 769; MePherson et al v. Bail of Mosier, 2 O. S. 491. As to tlie 
 Bufflciency of tho render: see Read et al v. Scovill et at, 16 U. C. (i. B. 463; 
 Arnold V. AndreiM, 8 U. C. C.P. 467 ; Scatcherd v. Andrem, Ih. 478 ; BInckman v. 
 &Gortnan, 6 U. 0. L J. 161 ; Kennedy et al y. Brodie, 4 U. C. Q. B. 189. 
 
 (n) The payment of costs is a condition upon which the proceedings are 
 stayed : /torn v. Whiteombe, 6 Dowl. P. C. 828 ; and if not paid pluiutitf may go 
 on with his action : Jb. Seo further, Wr^M tt al v. Tucker, 6 U. C. Q. B. 24. 
 
 (o) Taken from Eng. R. G. No. 109 of II. T. 1863, the origin of which was Eng. 
 R. G. No. 21 of H. T. 2 Wm. IV: Jervis N. R. 64. 
 
 (p) TI.J meaning of the rule is that at the utmost bail are only liable for the 
 •am mentioned ^n each of their reoognixanccs, although the sum recovered with 
 coats of suit amounts to more : Vantandau et al v. AmA, 2 Dowl. P. C. 767 ; Jonas 
 ttalr. Tepper etal,lE.iiE. 827. 
 
Bs. 90-92.] 
 
 TRINITY TBRM, 1856. 
 
 6w 
 
 r which was Eng. 
 
 ' which was Eng. 
 
 ' whicli was Eng. 
 
 90. iq) To entitle bail to a stay of proceedings pending a writ of 
 error or appeal, the application must be made before the time to sur- 
 render is out. (r) 
 
 91. (0 Whenever two or more notices of justification of bail shall 
 have been given before the notice on which bail shall appear to justify, 
 DO bail shall be permitted to justify without first paying (or securing 
 to the satisfaction of the plaintiff, his attorney, or agent) the reason- 
 able costs incurred by such prior notices, although the names of the 
 parties intended to justify, or some of them, may not have been 
 changed, and whether the bail mentioned in any such prior notice shall 
 not have appeared, or shall have been rejected. (<) 
 
 EJKCTMRNT. 
 
 93. (t^) No judgment in ejectment for want of appearance or 
 defence, whether limited or otherwise, shall be sign^ without first 
 filing an affidavit of the service of the writ, according to the Com- 
 mon Law Procedure Act, 1856, (w) together with the writ or a copy 
 
 {q) Taken rrom Eng. B. 6. No. 1 10 of 11. T. 1853, the origin of which was Reg. 
 B. G. No 84 of U. T. 2 Wm. IV : Jorvis N. R. 83. 
 
 (r) The English oonrt of King's Bench used, without regard to the time when 
 the npplicatiun was made, to stay proceedings against bail whoro a writ of error 
 was allowed, before the expiration of the time allowed to render, until the 
 determination of the writ of error, the bail undertaking to pay the condemna- 
 tion money or render the principal within four days after the determination of 
 the writ of error. The Common Pleas would not grant time to render ; but 
 merely to pay the money if the application were made after the time for render* 
 ing had expired : Tidd. l*rac. 265 ; Bennett v. Forester, 2 Price, 290 ; Edward* r. 
 JamtKon, Forrest, 28; Hof/e etal v. Cheetham, Wightwick, 79. 
 
 (t) Taken from Eng. R. Q. No. Ill of H. T. 1853, the origin of which was R. 
 (l B II. T. 1822. 
 
 (0 Where several notices of justification are Texatiously given, the court may 
 eoupel defendant to pay the costs occasioned by them, tliough the bail do not 
 
 Spear to justify: Aidiu T. Bnrgeu, 8 B. dc Al 759. And in some cases it is 
 B duty of the defendant*! attorney to see that bail attend pursuant to notice, 
 or else himself bo subjected to the costs: lb. ; ace also BtundiU t. BlundtUf 
 6 B. <b Al 633. 
 
 (v) Taken from Eng. R. O. No. 112 of H. T. 1853. The object of the rule is 
 to supply an omission in the Ejectment Act, which contains no provision requir- 
 ing an affidavit of aervice of the writ of ejectment to be tiled before signing 
 jadgroent for non-appearance: see section 15, Ejectment Act 
 
 (w) C. L. P. Act 1856, sec. 231, is now sec. 16 of the Ejectment Act. In many 
 respects tiie affidavit required must resemble the affidavit formerly required as 
 to service of the declaration in ejectKont, when ejectment was commenced by 
 a declaration, and not by a writ, as at present. This being the case, refe- 
 rence is made to some of the canes decided under the old practice. Tha 
 ■ffidavit may be sworn before a judge or commissioner not being an attorney in 
 the cause : J)o« d. Walktr t. JZm, T. T. 2 ifc S Vic. MS. R. <fc H. Dig. " Ejectment," 
 
 i 
 
 iff 
 
 Vfifll 
 
670 
 
 REGUL^G GENCRALBB AB TO PRACTICE. 
 
 [R. 03. 
 
 thereof, (x) where there u a limited defence, (y) or where personal 
 service has not been effected, (z) without first obtaining a Judge's order 
 or a rule of Court authorizing the signing such judgment ; (a) which 
 said rule or order, or a duplioate thereof, shall be filed together with 
 the writ. (2*) 
 
 03- (c) Where a person not named in the writ in ejectment has ob- 
 
 iil 9 ; and should be made bj the parson who effected the serriee, althongh in 
 some coHi-s the conrts have bocn satisfied with the affidavits of persons who uw 
 the service : OoodtilU d. Wanklen v. BadlitU, 2 B. tfe P. 120. The time of service 
 ahonid be made to appear on the face of the affidavit: Dot d. Sherwood v. Rot, 
 6 U.C. Q.H. 319; and the party served must be positively sworn to be the persoa 
 in possession : Dot d. Dunn v. Roe, E. T, 2 Vic. MS. R. A U. Dig. " Ejectment," 
 iii. 7 ; Doe d. Dolby v. Uiteheoek, 2 Dowl. N.S. I ; and where it was so sworn, the 
 court refused to set aside the service upon affidavits alleging the service to liave 
 been on a stranger: Doe d. Dunlop t. Rot, Tay. Rep. 480, ted qu. Where the 
 affidavit is as to service on a person in possession of part of the premises, judg- 
 ment may be signed as to that part: Doe d. Davidson v. Roe, M. T. 1 Vic. i/5. 
 B. A U. Dig. " Ejectment," iii. 0. If the affidavit be as to the service of two 
 persons, tenants of different parts of the premises, a service on each of the ])cr6ong 
 must be distinctly alleged : Doe d. Coek v. Rot, 6 M. d G. 273. If tlie service 
 were on the wife of the person in possession, it must bo stated that the service 
 was on the premises or at the husband's house : Doe d. Morland v. Baylies, 6 T. R. 
 76S ; or that the husband and wife were at the time of service living together: 
 Jenny d. Prttton et al r. CuUi, 1 ii. AV. N. R. 308 ; and the deponent's belief 
 that tiie person served is the wife of such person : Doe d. 8 ,nderton v. Rot, T. T. 
 a <b .*t Vic. MS. R. A A. Di^. " Ejectment," iii. 8. If tb ervice be on a child, 
 servant or other employee, it must generally be made tu ippear that the person 
 in postession has since service acknowledged the service : see section 6 Eject- 
 ment Act, and notes thereto. The affidavit need not state that the copy starved 
 was endorsed with the name and residence of the attorney, nor that an endorse- 
 ment of service was made on the writ within three days after service: Martin 
 T. MeCharltt, 26 U. 0. Q. B. 279. 
 
 (x) " And a copy thereof," Ac, in Eng. R. G. No. 112 of H. T. 1853. 
 
 (y) The rule appears to be divided into two branches, the first making pro- 
 Tision for cases where the writ has been personally served, and there is no 
 defence, in which cases judgment for non-appearance may be signed without 
 leave ; and the second, for cases in which there has not been personal service, 
 or there is a limited defence, in wliich cases leave to sign judgment must be 
 obtained. 
 
 (a) As to when personal serriee can be said to have been effected : see Eject- 
 .ment Act, s. 6, and notes thereto. 
 
 . (a) An application for a judge's order, Av., intends the exercise of a discretion 
 by the judge to whom application is made. Sucii judge must be satisfied that 
 the persons in possession have been notified, or facto must be adduced from 
 wUcn it is reasonable to infer the aame. 
 
 (b) Where an order has been made ex parte without all the facts having been 
 known or considered, it will be set aside : VanNorman v. McLennan, 2 U. C. 
 L. J. K.S. S07. 
 
 (c) Takee from Sng R. O. No. 113 of H. T. 1853. 
 
R. 05.] 
 
 TRINITY TERM, 1856. T T" ;Tn 
 
 671 
 
 letment has ob- 
 
 effected : see Eject- 
 
 taioed leave of the Court or a Judge to appear and defend, (d) he shall 
 enter an appearance acoording to the Common Law Procedure Act, 
 1856, entitled in the action against the party or parties named in the 
 writ as defendant or defendants, («) and shall forthwith give notice of 
 such appearance to the plaintiff's attorney, or to the plainti^i, if he 
 sues in person. (/) j;(i 
 
 94- (^g) If the plaintiff in ejectment appears at the trial, and the 
 defendant does not appear, (K) the defendant shall be taken to have 
 admitt d the plaintiff's title, and the verdict shall be entered for the 
 plaintiff without producing any evidence, (t) and the plaintiff shall 
 have judgment for his costs of suit as in other cases. (J) 
 
 PBKAL ACTIONS, COMPOUNDINQ OF. (k) 
 
 ((f) i. e. Under section 9 of the Ejectment Act. 
 
 {t) As to what manner of persons though not named in the writ are entitled 
 to apply for leave to amend : see note o to section 9 of the Ejectment Act. 
 
 (/) It is necessary in such cases not only to enter an appearance in the 
 manner prescribed, but forthwith to give notice thereof. This is a convenient 
 practice, where a stranger to the writ if> admitted to defend. It is not declared, 
 as in section 61 C. L. 1'. Act, that a defendant appearing after the time limited 
 fc nppuarance shall give notice of hid appearance- The want of such a provi- 
 sion may in some coses lead to difficu^v : seel'tin Komian v. McLennan, 2 U. 0. 
 L. J.N. S. 207. 
 
 (n) Taken from Eng. R. 6. TSo. 114 of U. T. 1853. 
 
 (A) t. 0. Any person who having lawfully appeared to the writ and *nade 
 himself a defendant. 
 
 (t) This is in effect the same as judgment for not confessing lease, entry, and 
 ouster, when ejectment was a fictitious form of action. The rule under conside- 
 ration is substantially the same as section 24 of tlio Ejectment Act, which 
 provides that " if claimant appear (t. «. at the trial) and the defendant does not 
 appear, the claimant shall be entitled to recover without any proof of his title." 
 
 {j) On the other hand, if the defendant appear at the trial and the claimant 
 do not, the claimant shall be nonsuited : section 24 of the Ejectment Act, and 
 defendant be entitled to judgment for costs of suit : R. G. pi. 24. 
 
 (*) In ordinary actions, the parties thereto being the only persons directly 
 interested, may compromise at such time and upon such terms as tliey Hee fit ; 
 but in penal actions the puV lie, and the crown representing the public, being 
 interested, no compromise c in be made without the leave of the court : 1 S Eliz. 
 cap. 6, 8. 8. The statute cf Elizabeth is in force in this Province: Bletker v. 
 Mtyere, 8 U. C. Q. B. 134. It extends to suits by common informers, but not 
 to those by parties aggrieved : Kirkham v. Wkttley, 1 Sollc. 80. Where it clearly 
 appears on the face of tite declaration that the consideration of the defendant's 
 
 trumise is the compromise, without the leave of the court, of a penal aotioo 
 fought by the plaintiff as a common informer against the defendants, the cua- 
 liduration will be held illegal, and the declaration bad: Hart v. Meyert, 7 U, C. 
 Q.B. 416. -■ ■- ' • ■ '^''"'' '"^ ■•■•■'.'•'- V'J 
 
 f 
 
672 
 
 REQUL^ OENERALKS AS TO PaAOTICE. [Us. 95-07. 
 
 9S. (0 Loavo to oonipound a penal action (m) shall not be given 
 in cases where part of the penalty goes to the Crown, (n) unless notice 
 shall have been given to the proper oiBoer, (o) but in other cases it 
 may. (p) 
 
 00- («?) The rule for compoundin,'» any qui tarn action (r) sliall 
 express therein that the dcfuniiant thereby uiidertukcs to pay til's 
 sum fur which the Court has given hi<u leave to compound such 
 action, (s) 
 
 97- (0 When leave is given to coiupout>d a penal action, tho 
 Queen's proportion of the composition shuU be p^id into tho hands uf 
 the Clerk of the Crown of tho Court granting such leave, for the use 
 of Her Majesty, (u) 
 
 (/) Tiiken from Enc. R. O. No. 118 of II. T. 1853. tho origla of which was Eiig. 
 R. O. No. dd of II. T. 2 Will. IV.: Jervis N. U. 88. 
 
 (m) Tlio lenvo cnnnot bo obtained until t.iti'r plea pleaded: Rfx v. Collier, 
 2 Dowl. r. C. 581 ; see also Hex v. Orhp el at, 1 B. &, Al. 'iSii. It is discretioniiry 
 witlj tho court to grant or refuse it: Maughan q. t. v. Walker, 6 T. R. 08 ; HhelJon 
 T. Mumford, 5 Taunt. '268. Where tho sum agreed to bo paid is so small as to 
 appear manifestly collusive, tho court will refuse: Wood q. t. v. Caitin, 2 W. Bl. 
 1167. The motion may bo made and leave granted after verdict: Maughan q. t. 
 V. Walker, 6 T. II. 98 ; or when defendant is in execution ; Jiradthaw v. Motlnm, 
 1 Str. 167 ; but in such cases tho defendant must sliow circumstances that cutitit 
 him to tlio iudulgouce, or tho court will refuse: Crowderv. Wagstaff, 1 li. <k I'. 18. 
 
 (n) Leave was given to compromise a penal action on tho statute 32 Hen. 
 VIII. cap. 3, for buying pretended titles, tiio crown's share being paid into 
 court: Gray q. t. v. Deltrtck, II. T. 6 Win. IV. MS. R. A H. Dig. " I'enal Ac 
 tion," 2. In a qui tarn action to recover penalties under the English statute 
 6 Geo, IV. cap. 114, which gives the penalty one-third to the king, ono-tliird to 
 the lieutenant-governor, and one-third to the informer, the court refused toarreit 
 judgment on the ground that the plaintiff clai icd the penalty for himself and 
 the king only: Jonu q. t, v. Chace, Dra. Rep. 334. 
 
 (o) Tiie " proper officer " is the attorney -general : Howard q. t. v. SoKerly, 
 1 Taunt. 103. 
 
 (p) It is provided that leave shall not be given in eaiet where part of tht 
 ptnaltg goe» to the crown, unless notice. Sic. but in other catet it may. The 
 meaning is, that in cases other than those specified tho leave may be obtained 
 without showing notice, &c. 
 
 {q) Taken from Eng. R. G. No. 119 of U.T. 1863, the origin of which wasEng. 
 R, G, No. 2 of E. T. 33 Goo. 111. 
 
 (r) Qui tarn action. From the words in the old form, it is so called because • 
 moiety of the penalty is generally forfeitable to the crown and the other isgiTCD 
 to the informer, " qui tau pro domine rege quam pro leipio teqaitur." 
 
 (t) Tho payment may after such an nndertaking be enforced by attachment: 
 Hex q. t. v. Clifton, 6 T. R. 267. 
 
 (<) Taken from Eng. R. G. No. 120 of H. T. 1863, the origin of which was Eng. 
 R. O. of M. T. 7 Geo. III. : Brown q. t. v. Bailey, 4 Burr. 1929. 
 
 (u) The Queen's Bench and Common Pleas have concurrent jurisdiction. 
 
Rs. 98, 99.] 
 
 TRINITT TBBM, 1856. 
 
 073 
 
 of which was Eng. 
 
 rd q. t. V. SoKerly, 
 
 I of which was Eng. 
 
 ruiaoxEiis. and puocEEUiNaa AaAiNST tiiesl 
 
 98. (w) Every rule or order of a Judge directing the disch&rpe of 
 A dot'undunt out of ouBtody, upon special bail boinp put in and per* 
 fcctcd, (x) oball also direct a supertedeas to issue fortliwith. (i/) 
 
 99. (i) The plaintiff shall proceed to trial or final judgment (a) 
 against a prisoner (6) in the term next after issue is joined, or ot the 
 gillitipsor assizes next after such term, (c) unless the Court ora.Tudge 
 gbull othcrwi!<e order, (d) and shall cause the defendant to be charged 
 in execution within the term next after such trial or judgment. («) 
 
 (tv) Taken from Enff. U. G. No. 128 of II. T. 1853, the origin of which was 
 Eng. R. C. P. '1. T. 1 Vic. : 4 Bing. N. C. 366. 
 
 (r) " Put in" and " perfected." These words refer to separate and distinct 
 3tc|is, each of which is explained in note q to section 84 C. L, P. Act. 
 
 (y) Wlicre a prisoner is supersedable, ho should take advantage of it in due 
 timu. Though there is a rule that a prisoner onco supersedable is always 
 lapcrsedable, it only holds good ho long as the prisoner remains in custody 
 under the same process: London Asturanet Co. v. Per hint, 1 T. R. 691 n. 
 
 («) Taken from Eng. R. O. No. 126 of II. T. 1868, the origin of which was Eng. 
 R. G. No. 86 of H. T. 2 Wm. IV. ; Jervls N. R. 84. 
 
 (a) " Trial or final judgment" The words " final judgment" as contradis- 
 Un/luisheU from the word " trial" mean a fiual after an interlocutory jutlgtuent : 
 Ke JJeaton v. Whi/laker, 4 East. 849; Foulkei v. Burgtu, 6 Dowl. P. C. 109; 
 Bazttr T. Bailty, 8 M. «it W. 416. Where a defendant was arrested on a cupiat 
 onder the Eng. Stat. 1 tfc 2 Vic. cap. 110, and judgment was signed for want of 
 tplea, such judgment was held to be final within the meaning of the English 
 nue of William, though no coats were taxed : Walttr v. D$ Richemont, 6 Q. B. 644. 
 
 (i) This rule does not apply to prisoners in criminal custody, nor to prisoners 
 on bail: Bratk v. LatUi, 6 U. C. L. J. 226; Curry r. Turntr, 9 U. C. L. J, 211. 
 
 (c) Where a cause though entered for trial within the time prescribed by the 
 role of Wm. IV. was not tried owing to the amount of business to be transacted 
 It the Court, the delay being the delay of the Court, plaintiff was held suOii'ieutly 
 to have complied with Uie rule : Mytri y. Cooper, 2 Dowl. P. C. 423. 
 
 ((/) Court or Judge. Relative powers : see note v to section 48, C. L. P. Act. 
 
 (() A plaintiff need not charge a defendant in execution until he has been in 
 eastody for the prescribe period at his suit : Hall t. Wetkarell, 2 Scott, .V. R. 
 196, The time is calculated from the signing of judgment: Colbron t. Hall, 6 
 Dowl. P. C. 634; and if judgment be signed in term or vacation, plaintitT must 
 in either case charge defendant in execution in the following term : TKorn y. 
 Lttlie, 8 A. 4 E. 195; Bortr v. Baker, 2 Dowl. P.C. 608; Buxter v. Badey, 3 M. 
 A W. 416. Upon an affidavit of defendant that he was aued as induraer uf a 
 proniiasory note, arrested and in cloae custody, that the cause was tried at, <Icc., 
 on, dic, and that although more than a term had elapsed since said trial, plaintiff 
 hsd not entered up judgment or charged defendant in execution, a summons for 
 t> tuptntdtai waa made absolute, no cause to the contrary having been shown: 
 Wright tt al T. Hull, 8 U. C. L. J. 68, per Bichards, J.; see further, C L. P. 
 Act, section 248 and notes thereto. 
 48 
 
 If'liW 
 
674 
 
 RKOULii! QENERALES AS TO PRACTICE. [l{». 100, 101. 
 
 100- (/) III oil cases in which a defoiidaDt shall Iiave been or Hhal) 
 be detained in prison on any writ of capias, or being arrested thereon 
 shall }?o to prison for want of bail, and in all cases in which he shall 
 have been or shall bo rendered to prison before declaration on any 
 f.iich process, (f/) the plaintiff in such process shall declare against 
 such defendant before the end of the next term aftei' such arrest or 
 dcttiincr, or render and notice thereof, (A) otherwise such defundant 
 shall bo entitled to be discharged from such arrest or detainer, upon 
 «nterinp; a common appearance, (t) unless further time to declare .sliall 
 have been given to such plaintiff bj rule of Court or order of a 
 Judge, (j) 
 
 SIIEUIFFS, RULES TO RETURN WRIT8, Ac. (fc) 
 
 10l< (I) All rules upon sheriffs to return writs, or to bring in the 
 
 (/) Taken from our Rule No. 3 of E. T. 6 Vic: Cam. R. 18. 
 
 (p) Tlic object of this rule is to hnsten procoedinss af^ninst prisoners in (^aol: 
 see'OVenn v. Box, 3 U. C Q. B 182. Tiierefore if defendant bo out on bail, 
 plaintiff is not bound to declare against tiio defendant before the end of the term 
 next after the arrest or detainer, Ac. : Ih. 
 
 (A) " Rhall declare, Ac." ThouRh section 32 C. L. P. Act reads " may before 
 the end of the next term after the arrest, <bc.," 'may" should be construed 
 "slioll:" Tytonv. McLean, 1 Prac R. 339. The declaration must be served »« 
 well as fiieii so as to " declare" within the meaning of the rule : lb. The fact 
 that defendant had during the term made application for his discharge from 
 cnstod}', which application was refused before the end of the term, is no excuse 
 for not declaring during the term : Olennie v. Jioi$, 10 U. C. L. J. 106. 
 
 (i) Upon an affidayit of a defendant that he was in close custody on a writ of 
 capiat issued, dec, that although two terms had elapsed since said arrest, 
 plaintiff had not declared, a summons for the prisoner's discharge, was made 
 absolute upon entering a common appearance : Bambtrg v. Solomon, 3 U < ! L J. 
 69. If defendant be supersedable because plaintiff has not declared, sub.scquent 
 offers of settlement cannot interfere with Lis discharge : see 7'jfion y. JUciMn, 
 1 Prac. R. 339. 
 
 {j) Court orjitdgc. Relative powers : see note w to section 48 of CLP. Act. 
 
 {k) The sheriff as the chief ministerial officer of the conrts has the execution 
 of nil writs of final process. The command in each writ is to execute the same, 
 and at a fixed time or "immediately after the execution thereof" to maket 
 return to the court. If the sheriff do not return the process within the time 
 limited by the practice of the court plaintiff has a right to call upon him by 
 rule to know why the return is not made as directed. The sheriff failing to 
 show good cause brings himself into comtempt and is liable to attachment. 
 And a sheriff may be called upon to return process not only at the instance of 
 plaintiff but at the instance of defendant, if able to show special gro\mds for the 
 same: WilUamt v. Webb, 2 Dowl. N.S. 004; Danieh v. OomperU, 3 Q B. 822. 
 
 (l) This rule appears to be original. 
 
[Its. 100, 101. 
 
 Es. 102-101] 
 
 TIIINITY TERM, 1856. 
 
 G75 
 
 e been or n\n\\ 
 •cstcd thereon, 
 which he hhall 
 aration on any 
 declare a^:>in8t 
 Buch arrest or 
 such defendant 
 
 detainer, upon 
 to declare .shall 
 
 or order of a 
 
 to bring in the 
 
 18. 
 
 prisoners in rroI : 
 it bo out "M bail, 
 ,b8 end of tlic torm 
 
 reads " may before 
 loulil be construed 
 must be served m 
 ule: lb. Tliefftct 
 his discharge from 
 term, is no excuse 
 J. 105. 
 
 ustody on a writ of 
 since said arrest, 
 iscliarge, was made 
 lotomon, 3 U *' L J 
 eclared, subsenuent 
 se lyton v. ilcLtan, 
 
 in 48 of CLP. Act. 
 
 Is has the execution 
 |o execute the same, 
 Ithereof" to malcea 
 >8s within the time 
 L call upon him by 
 [he sheriff failing to 
 kble to attachraent. 
 fy at the instance of 
 Icial grounds for the 
 \perU, 3 Q B. 822. 
 
 bodies of defondiintd, shall be six daj rules, (m) and shall be issued 
 from the same office whence the writ was sued out. (n) 
 
 103. (o) No Judge's order shall issue for the return of any writ or 
 to bring in the body of the defendant, but a side bar rule shall issue 
 for that purpose in vacation as in term, (p) which shall be of the same 
 force and effect as side bar rules made for that purpose in term, (g) 
 
 103. (r) The sheriff shall file the writ in the office from which the 
 rule to return the same was issued, («) at the expiration of the rule, or 
 as soon after as the office shall be open, (f) and the officer with whom 
 it is filed shall endorse the day and hour when it was filed, (u) 
 
 104- (v) In case a rule to bring in the body of a defendant shall 
 expire in vacation, having been duly served, (w) but not having 
 
 (ill) This has always been the practice in Upper Canada : see Bilton et al v. 
 }fiiit/onell, 1 Cham. 11. 207. As to the computation of time: see Regina v Jarvit, 
 3 IJ C. Q B 125. The time may be enlarged beyond the six days: Jones v. 
 Robinson, 2 Dowl N S. 1044 ; see iurther note < to section 276 of C. L. P. Act. 
 
 (n) Every deputy clerk of the crown and pleas may sign and issue rules on 
 the sheriff or coroner to return writs and process issued out of the office o'' 
 such deputy : C. L. P. Act, section 275. And it is the duty of each sheriff and 
 coroner to return such writs to the office from which sucL rule issued : lb. 
 
 (o) Tak^n from Eng. R. G. No. 132 of H. T. 1863, the origin of which was Eng. 
 R. G. of U. T. I Vic. : Jervis, N. R. 168. 
 
 ( p) Formerly in vacation a party might obtain a judge's order instead of the 
 rule here mentioned. 
 
 iq) A sheriff cannot be ruled by the plaintiff to return a writ when it has 
 been executed by a special bailiff duly appointed by such plaintiff or his agent : 
 Hamilton v. Dahiel, 2 W. Bl. 962; PallisUr v. Pallister, 1 Chit. R. 614 n. ; or 
 where there has been collusion between the sheriffs officer and plaintiff or his 
 attorney : Ruston v. IlcUfield, 3 B. A Al. 204 ; or where the action or return of 
 the writ has been compromised : Hedges v. Jordan, 5 Dowl. P. C. 6 ; or where 
 the writ is a nullity : Brown v. McMillan, 7 M. A W. 198 ; but not so however 
 if only an irregularity : Jones v. Williams c< a/, 8 M. «k W. 357. 
 
 (r) Taken from Eng. R. G. No. 131 of H. T. 1863. the origin of which was Eng. 
 R. G. Nos. 11 and 12 of H. T. 2 Wm. IV: Jervis, N. R. 61, 62. 
 
 («) See C. L. P. Act, section 280, and notes thereto. 
 
 (0 See R. G. pr. 101. 
 
 (u) Where the writ was enclosed to the clerk of the crown three or four days 
 before the expiration of the rnle, so that it was not on the files when the search 
 was made, but was produced in open court by the clerk, an attachment was 
 refused though asked for the purpose of making the sheriff pay the costs : 
 Andrtvs v. Robtrtaon et al, 8 0. S. 304. 
 
 {•j) Taken from Eng. R. G. No. 133 of H. T. 1863, the origin of which was Eng. 
 R. G. of H. T. 3 Wm. IV : Jervis, N. R. 103. 
 
 (w) I. ';. Personally served. 
 
 ■If 
 
 m 
 
 
 r^^ 
 
 
676 
 
 RIOULA 0ENERALE8 AS TO PRACTICE. [Rfl. 105, lOG. 
 
 been obejod, (z) an attachment shall issue for disobcdionco of suuh 
 rule, whether the rule shall or shall not have been obeyed in the 
 meantime. (^) 
 
 lOtS- (z) Whore any sheriff, before his going out of office, shall amnt 
 toy defendant and take a boil bond and muke return of c^pt corpus, ho 
 shall and may, within the time allowed by law, (a) be called upon to 
 bring in the body by a rule for that purpose, notwithbtanding he may 
 be out of office before such rule shall be granted. (2*) 
 
 IRREOULARITY. fe) 
 
 100- (d) No application to set aside process or proceedings, (e) for 
 Irregularity shall be allowed, unless made within a reasonable time, (/) 
 
 (x) The sheriff to obey the rule mnst within the time limited bring the defen- 
 dant into court either by having him in legal custody or by causing hltu to put 
 in and perfect special bail. It is not enough to render the defendant or put 
 in and perfect special bail afterwards, though before motion for attachuieot : 
 R. O. pr. 74. 
 
 (y) Before the passing Oi Provincial statute 7 Vic. cap. 8.t, it was held that a 
 judge in chambers had no power to issue an attachment against a shoritT for 
 disobedience of r rule or oraer for the return of a writ: Rez v. The Shmff o/ 
 Niagara, Dra. Rep. 348. Even since the statute, it has been doubted wln'tlu'r s 
 single judge han power to pass judgment on a sheriff for contem|it, wlien the 
 object of the statute has been attained by the return of the process: lirifina t. 
 Jarvi$, « U. C. Q. B. 668; see further C. L. P. Act, ss. 280, 261, and notes thureto, 
 both of which sections are taken from sections 1 and 2 of the 7 Vic. cap. .".3. 
 At to the time to move for an attachment after a rule to bring in the body : aee 
 Rti T. Tke Sheriff of Middlesex, 8 T. R. 464 ; Jiex v. The Sheriff of Surrey, 11 Eaat. 
 691 ; Rex v. The Sheriff of Middlesex, 1 Dowl. P. C. 63. 
 
 (f) Taken from Eng. R. G. No. 134 of H. T. 1868. 
 
 (a\ The rule cannot issue earlier than the day on which the writ is returnable, 
 nor Defore the time for putting in bail has expired : Pouehte v. Lieven, 4 M. A 3. 
 427 ; Potter y. Marsden, 8 East 626 ; Hutehins v. Bird, 6 T. R. 479. 
 
 (i) The rule should be served within a reasonable time: Davis v. Allen, 
 1 Dowl. P. C. 63. 
 
 (e) An irregularity is defined as vhe want of adherence to some prescribed 
 rale or mode of proceeding: see note u to section 48 of C. L. P. Act 
 
 ((f) Taken from R. O. No. 136 of H. T. 1863, the origin of which was Eng. R. 6. 
 No. S3 of H. T. 2 Wm. lY. : Jervis, N. R. 67 ; with which our rule No. 22 of II. T. 
 13 Vic. corresponded. 
 
 (e) This rule applies in the case of prisoners as well aa in other cases ; Claridgt 
 T. Mackensie, 6 M. A O. 861. The first irregular proceeding must be attacked in 
 the motion: Cinqmari st al t. 7%< EquitabU Fire Insurance Co., 2 Prao. R. 207. 
 
 (/) The time begins to ran from the time when the party complaining had tiw 
 means of knowledge, though in fact he did not know of the irregularity till after- 
 wards: Tarber t. Trenek, 6 N. A M. 668; Brooks et al ▼. Hodgson, 1U.&G. 629; 
 JBatt V. Lawrence, lb. 406; Bamms r. Duncombe, lb. 426; Levis v. JDaviton, 
 
U 107, 108.] 
 
 TRINITY TERM, 1856. 
 
 677 
 
 nor if tho party applying has takco a fresh step after knowlorlge of tho 
 irrcpularitj. (j) 
 
 107. (A) Whore a saratnons is obtained to sot aside proceedings for 
 irrc:4ulurity, (i) tho several objeofions intended to be insisted on shall 
 be titatod therein. (J) 
 
 108. (k) In all oases where a rule is obtained to E^how cause why 
 
 1 C. M. A R 656 ; S(tymour r. Maddox, 1 L. M. A P. 643; Robtrtt tt al v. T - »( nl, 
 1 Chitiii. R. Un. An irregularity in ft writ of oummnnt iliould be coinf > tined 
 of l)uf()re tho time fur entering an appearance has uxpirud: Chubb v. iVieAo/.> >n, 
 1 11. A \V. 666; Tyler v Oretn, 3 Dowl P. C. 439; Ilinton v. St^vrnt, 4 Dowl. 
 P. V. 233 ; Edwardt v. CoUint, 6 Dowl. P. C 227; Child y. Marth, 3 M A W. 4:i3. 
 Su ill an affidavit to hold to bail or capias, before the time for putti'. . n bail has 
 exi>ind : Tucker v Colegate, 1 Dowl P. C 674 ; Firley v. RalUH. 2 lV)wl. P. C, 
 70S, Johnson v Kfnnfi/. 4 Dowl P C 346; Fovell el at v. Petrt, 6 Dowl 1 .'. 
 27ii ; Fonfe t Dick, 1 U A W. 207 ; in the declaraMon before the expirittioi. of 
 till" time fop pleading: Ilinton v. Stcveni, 4 Dowl. P. C. 288 ; Ootdtng y Srurbo- 
 rouf/fi, 2 11. X \V 94; Ramme t Duneombe, 7 M. A O. 426; Cooper ▼ H'/Mon, 
 6 1'rac R. .SO: in the pica on tho ground of its not being issuable before obtaining 
 time to reply: Trolt v. Smith, 9 M AW. 760; in an issue boolc promptly: 
 Hclleitn V. IJiiffy, 4 Prac R 338; in an interlocutory judgment, within aruason- 
 ihli' time after defendant has notice of it; and qu. if not now witliir. a rtmsun- 
 able time after its entry? see Lewit v. Browne, 3 Dowl. P. C 700; Hnljerii v. 
 Cuitill. 4 Dowl P. C. 204; Grant v. Flower, 6 Dowl. P. C. 4H»; see also Scott 
 T. Cogger, 8 Dowl. P. C. 212; IJill V. MilU, 2 Dowl. P. C. 696; Hale v Law 
 Tinee. 7 M. A O. 406; McKemie et al v Mc^aughton, a Prnc R U6; llerr v. 
 Doughtsu, 4 I'rnc. R. 102. In an application to set aside a tinal ju(li.;mL'iit, siijned 
 on II writ not specially indorsed, or so indorsed improjiorly, on the ground that 
 the jiuigmunt should have been interlocutory, pliuntitf should produce tho writ 
 or copy shewing that it was not so indorsed, or that it was nut a proper caso for 
 spL'ciiil endorsement: Kerr et al v. Bowie, 3 U. C. L. J. 150. 
 
 {ij) The application must in all cases be made before tho applicant takes a 
 frisli step, even though that step bo irregular: Rutty v. Arbur, 2 Dowl. P. C. 
 8fi; Smith v. Clarke, lb 218; Fynn v. Kemp, lb 620; Doe d. McLean v. J/c- 
 honnld, ,3 U. C. Q, B. 126; Proctor v. Young, II. T. 4 Vic. MS. R. A II. Dig. 
 "Irregularity," 16. 
 
 (A) Taken from Eng. R. O. No. 136 of II. T. 1853. 
 
 (i) It has been held not to be necessary in n rule niii to set aside proceodings 
 for irregularity to specify tho grounds of irregularity on which the party relies: 
 Rtnnie v. Bruce, 2 1). A L. 946. 
 
 (;') Irregularities in technicarapplications, where there are no nieritH, cannot 
 in general be remedied: Woolly v. Twedle, 3 U. C L.J. 185. An enlargement 
 of a summons for the purpose of remedying them will not in general be granted : 
 /''. Writ of summons in Common Pleas: T.HBPurdy v. Rowland*; declara- 
 tion by mistake in the Queen's Bench: J- T U^I'urdy v. Rnwlande ; motion 
 to set aside declaration for irregularity properly made on affidavits entitled in 
 the latter court: Purdy v. Rowlands, 4 Prac. R. 308. 
 
 [h) Taken from Eng. R. G. No. 137 of IL T. 1853, tho origin of which was R. 
 K ]}. 37 Geo. III.: 7 T. R. 82. 
 
 
 .J 
 
 m 
 
 
 
 \% 
 
 , { 
 
 9/^A 
 
 / X. 
 
678 
 
 REQUL^ OENERALES AS TO PRACTICE. 
 
 [R. 109. 
 
 Mh 
 
 proceedings should not be set aside fur irregularity with costs, (/) and 
 such rule is afterwards discharged generally without any special direc- 
 tion upon the matter of costs, it is to be understood as dischargod 
 
 H-^ 
 
 ^Yfh^^ 
 
 5 AFFTDAVITS. 
 
 100- (o) The addition and true place of abode of every person 
 making an affidavit shall be inserted therein. ( p) 
 
 (I) A judge in chambers has the snme power to grant or refuse costs as the 
 court: iiavt/ v. Brown, 1 Scott, 384; Doe d I'reacoil v. Hoe, 1 J)owl. P. C. 2H. 
 ]f costs be asked and the rule be made absolute, it is usually mnde absohite with 
 costs. Titlei/ V. Ilenly, 1 Chit. R. 136; EdteanU y. Danks, 4 Dowl. P. C. ;i57. 
 If not so asked, it is made absolute with or without costs, in the discretion of 
 the court or judire, but generally without costs: Duneombe v. Crisp, 2 Dowl. P. 
 C. 5 ; Ex parte Morriton, 8 Dowl. P. C. 94. If made absolute with costs tlioy are 
 payable olone to the person who obtains the rule, though one of several di-fen- 
 donts: Showier v. Stoakes et al, 2 D. «fe L. 2. 
 
 ("') If a rule is discharged on r. preliminnry objection, such us an error in Iho 
 intitutling of an affidavit or defect in the jurat, it is not usual to give costs: 
 IJiiyhes V. Hamillon et al, 2 U. C. Q. B. 172; Duke of Brunswick v. Sloni'in et 
 al, 8 C. B. 617; but see Blackwell v. Allen. 7 M. & W 140; Frost v. lloyward, 
 10 M & W. 673; Cobbett v. OUfidd, 16 M. & W 469; In re Robertson el al, 
 6 Prac R. 132 Where a rule or summons is moved with costs, when dis- 
 charged it is usually discharged with costs: M'lllis v. Ball, 1 Dowl. N.S. 3(i3; 
 Becket V. Durand, 6 U. C L J. 15. If too much be asked for, the rule or sum- 
 mons may bo made absolute as to part without costs: I'oiterson and the Corpo- 
 ration of Grey. 18 U. C. Q. B. 189. If the point be new, the ap})licotion miiy be 
 refused without costs: Boulton v. Rutlan, 7 U. C. L. J. 151. Where the piirly 
 complaining of an irregularity himself committed the first error, no costs will be 
 givin: Ross v. Frater, 6 U. C. L. J. 282. Costs not given unless asked for: In 
 re Marriott v. The London and 'iottth Western Railway Co. 1 C. B. N.S. 499; and 
 not allowed on an ex parte application: Nokea v. Gibbon, 3 Jur. N.S. 282; or 
 where cause shown in the first instance: Harvey v. Divers, 16 C. B. 497. Ho if 
 each party foil on a material part of the application : Sullivan v. Ktng, 24 U. C. 
 Q B. 161. Whore the court is fqually divided, costs not ollowed: Archer r. 
 James et al, 2 B. <fe S. 61. A judge in chambers may himself fix the amount of 
 costs: Collins v. Aaron, 6 Dowl. P. C. 423, Tliere can be no appeal on the deci- 
 sion of a judge as to costs: Former v, Forster it al, 8 L. T. N.S. 661. 
 
 (o) Taken from Eng. R. O, No. 138 of H. T. 1853, the origin of which was 
 Eng. R. O. No. 5 of 11. T. 2 VV m. IV. Jervis N. R. 58, with which our Rules of T. 
 "i. 3 & 4 Wm. IV. and E. T. 4 Wm. IV. Cam. R. 1, in part corresponded. " Tlie 
 new rule is precisely similar to he old one:" In re I'hilp, 21 L. T. Rep. 170, 
 per Wightman, J. It was decide i u ider the old rule that if deponent described 
 nimself as "defendant," he need not also give his addition and place of abode: 
 Foole v. Penibrey et ux. 1 Dowl. i\ 0. 693 ; Jackson v. Chard, 2 Dowl. P. C. 4{i9 ; 
 Sharpe v Johnson, 4 Dowl. P. C. 824 ; Brooks v. Farlar, 5 Dowl. P. C Stil : 
 Lyman v. Breihron, 2 Cham. R. 108 ; and it. would seem that a similar construc- 
 tion would apply where the affidavit is made by a person describing himself as 
 "plaintiff in the cause:" Ewini; et al v. Lockhart, 3 U. C. Q. B. 248. 
 
 (/)) The requirements of the rule are of two kinds — addition and place of ahoJt. 
 1. Addition — The following have been held sufficient in England : — " Mer- 
 chant:" Vaissier v. Alderson, 3 M. «fe S. 165; "lute clerk to, &c.i" Simpson x. 
 
:. [R. 109. 
 
 th costs, (/) and 
 my speciul direc- 
 )d as dischartrod 
 
 of every person 
 
 refuse costs ns the 
 1 Dowl. V. C. -274. 
 nindb absoluti! with 
 4 Dowl. r. 0. ;{57. 
 in the discretion of 
 ,'. Crisp, 2 Dowl. P. 
 with costti they are 
 lie of seveial defcn- 
 
 h us an error in the 
 usual to give costs: 
 iswick V. Sloni'in et 
 ; Froft V. Iliiyward, 
 
 re Robertson el al, 
 
 th costs, when dis- 
 
 !, 1 Dowl. N.S. Sii3; 
 
 for, the rule or sum- 
 
 •rson and the Corpo- 
 
 ! application min* be 
 
 . VVhere the parly 
 
 ror, no costs ■s'ili be 
 
 inless asked for: In 
 
 C. B. N.S. 490; and 
 
 3 Jur. N.S. 282; or 
 
 16 C. K. 497. «o if 
 
 in V. King, 24 U. C. 
 
 allowed: Archn t. 
 
 If fix the amount of 
 
 appeal on the deci- 
 N.S. 661. 
 
 iriffin of which was 
 
 idi our Rules of T. 
 
 irresponded. " The 
 
 ,21 L. T. Kep. 170, 
 
 deponent described 
 
 knd place of abode : 
 
 2 Dowl. P. C. 4()& ; 
 
 Dowl. P. C 3bl : 
 
 t a similar construc- 
 
 scribing himself as 
 
 B. 248, 
 
 I and plnte of ah»h. 
 England : — " Mer- 
 it c. :" Sioipsunx- 
 
 R. 110.] 
 
 TRINITY TERM, 1856. 
 
 no. ('/) In every affidavit made by two or more deponents, the 
 Dailies of the several persons tuaking suuh affidavit sliull be wiIikmi in 
 the jurat. (/•) 
 
 Dnimmond, 2 Dowl. P. C 473 ; "managing clerk to, etc 
 
 6 A. »t E. 81)6; " agent and collector to the plaintiff, an hotel keeper:" ,S/ii>r/ v. 
 CauijMl, 3 Dowl. P. C. 487; "agent of the ibove named plaintiff:" Liixfutd 
 V. Uroombrhhje, 2 Dowl. N. S. 332; Matlheitmony. liaintow, 3 D. A L ;;27 ; 
 "j)roce8s server:" Phillips v. Baxford, 4 Jur. 62. The following huve been 
 held insufficient — "Assessor:" NathaH\. Cohen, 3 Dowl. P C. ;<7i>; "ncling 
 a.< niana'^iiig clerk, Ac," or " articled clerk, «tc.," without saying to whom or 
 in whose office: Repilia v. Reeve, 4 Q. B. 211. It is doubtful whether a joint 
 uHidiivit in which the additions and places of abode of some of the defeiuiants 
 are correctly stated and othr'rs not, can be used: Rix v. The Jiintinn of the 
 Cmiiti/ of Cnrnarvoii, 6 N. «fe M. 364 ; Nathan v. Cohen, 3 Dowl. 1'. C. 37o'; /ix 
 parte EdinomU, 6 Dowl P. C 702. 
 
 2 iiai'c of abode — The following have been held sufficient in I-nyhiiiil 
 '■ 'Ity of London :" Vassier v. Alde^'son, 3 M. A S. 16.5 ; Miller v. Millrr, 2 Scott, 
 118 ; " Bath, in the County of Somerset:" Coppin et ux. v. Pott£r, 2 Dowl. P. C. 
 78.) ; " Ken.sington, in the County of Surrey :" WiUon v. Chanihtrn, I II. A: W. 
 116; "Ely, in the County of Cambridge:" IltmCs Bait, 4 Dowl. P. C. 272; 
 "late of Tyrone, in the County of Tyrone, in Ireland, but now in Dublin 
 Castle:" Stuart v. Gaveran, 1 if. <fe W. 699. Ho where a foreigner, who was 
 teuiporarily in England described himself as of his residence abroad: liouhet 
 , V. Klltoe, 3 East. 154 So when an articled clerk without stating his residence 
 stated the place of business of his employer: Alexander v. Milton, 1 Dowl. P. C. 
 67"; Boitomlei/ v. Belchamber, 4 Dowl. P. C 26; Striker. Blnnchard, 5 Dowl. 
 r.C. 216; see also Ilaslopev. Tliorne, 1 M A S 103 ; Anon. 2 Chit. 11. 15. ^'ut a 
 mere description of " a clerk to defendant's attorney," without stating residence 
 or place of business of himself or master, is insufficient: Dduivh v. .)/<///, 5 Dowl. 
 P. C 83 ; but see Simpson v. Drummotid, 2 Dowl P. C. 473. It should be ob- 
 served that the "true place of abode" nuist be stated. Therefore a description 
 a3 "kite of, itc," without showing aefuul residence at the time of making the 
 affidavit, is insufficient: Sedley v. While. 11 East. 528. Where the defendant 
 de.seribed himself as of " Dorset place, Clapham road, .Middlesex," and his true 
 place of abode was " Dorset place, Chapman Road, Surrey," the affidavit was 
 held insufficient : Collins v. Goodyer, 2 B. it C. 563. 
 
 (q) Taken from Eng. R. G. No. 139 of H. T. 1853, the origin of which was Eng. 
 R. K. B. No. 6 of M. T. 37 Geo. IIL: 5 M. & G. 291. n. b The rule mu.it 
 be strictly observed: Lackinglon v. Athe.lon, 6 Scott, N. P. 240. The priietice 
 in this Province was, before this rule, in effect the same as that pre.seribccl in 
 it: Nicholson d. Spnfford v. Eea, SOS. 84. 
 
 (r) The court has refu.sed to allow an affidavit framed contrary to the (dil rule 
 to bo read: Nicholson d Spajford v. Riit, 3 U.S. 84. If iiuidvertently allowed 
 to ho read, any rule or affidavit obtained upon it may be discharged with costs: 
 Cubhett V. Oidfield, 16 M. A W. 469. A jurat thus, " Sworn at O. the 2:Jrd 
 January, 1843, being read over to and fully understood by the said J. A. and 
 A. M A., before me, Ac, a commissioner, Ac ," is not a sufficient compliance 
 with the rule: Pardoe v. Terrett, 2 Dowl. N.S 903 The court has a discretion 
 to ntnend affidavits defective in the jurat: see Fisher y. Thayer. 5 () S 513. 
 So as to the place of swearing: Cass v. Cass, 1 1». A L 698 So where the 
 judge's clerk has inadvertently omitted the names of deponents : Fx p'irie Smith, 
 2 Dowl P C. 607; Wilson y Blakey, 9 Di 11. C 352. But in many cases 
 the courts have refused to amend: Goodncke \. Turlry et al, 4 Dowl P. C. 392; 
 
«80 
 
 BEGUUB 0ENKRALK8 AS TO PRACTICE. [Rs. Ill, 112 
 
 111- (s) No affidavit shall be read or made use of in any matter 
 depending in court, in the jurut of which there shall be any interlinea- 
 tion or erasure, (t) 
 
 113. (0 Every affidavit [sworn within this Province] («) to be here- 
 after used iu any cause or civil proceeding, (r) shall be written in a 
 plain, legible hand, and shall bo drawn up in the first person, and shall 
 be divided into paragraphs, and every paragraph shall be numbered 
 consecutively, '"'id, as nearly as may be, shall be confined to a dit^tinct 
 portion of the subject. No costs shall be allowed for any affidavit 
 or part of an affidavit substantially violating this rule; [nor shall 
 any affidavit violating this rule be used on any motion to obtain or to 
 show cause against a rule 7ii«t, without the express permission of the 
 court.] (y) This rule is not to be in force till Michaelmas term next, [z) 
 
 Anon. 2 Chit. R 20; Frott v. Ilayward, 2 Dowl. N.S. 666; Holmes v. London 
 and South Western Railway Co 13 Q. B. 211; Re Lloyd, 15 Q B C82 A 
 jurat stfttiiig thut two deponents (naming them) were sworn, is a sufficient com- 
 pliance with the rule: Kee/er v. liawley, 1 Prac. R. 1. 
 
 («) Taken from Eng. R. G. No. 140 of II. T. 185.3. the origin of which was 
 Eng R. G. K. B. of M. T. 37 Geo. Ill : 7 T. R. 82. Tliis rule ai)i)lies to uffida- 
 ▼its sworn al)roa(l: In re Paye, 6 D. <b L. 476; In re Fagan, 5 C. B. 430; In 
 re Tieiney, 15 C. B. 761. 
 
 (t) The rule does not apply where the jurat is altogether erased and a new one 
 written : Dawson v. Wills, 10 M A VV. 663, per Lord Abinger, C. B. Wlicre 
 any word is struck out which in any degree alters the sense, tiie whole is bud: 
 lb. The rule does not apply where the words " before me" are erased, and " by 
 the court" substituted: Austin v. Orange, 4 Dowl. P. C 576; nor to an erasure 
 over the jurat: Atkinson v. Thomson, 2 Chit. R. 19; nor to an interlineation in 
 the atKdavi., itself, which need not in fact be noticed in the jurat: Lister \. liouU 
 ton, 5 U. C. Q B. 682. But the rule does apply if a word in the jurat be scored 
 through : Williams v. Clough, 1 A. <& E. 376. Therefore a line drawn throiii^h 
 words in tlie jurat, thaugh leaving them perfectly legible, is an erasure: lb. 
 Part of the jurat was written on one side of the paper, and below it the words, 
 " a commissioner for taking affidavits in this court," were erased, and the remain- 
 der of the jurat written on the other side of the paper, held that the affidavit 
 was not vitiated : Wills v. Dawson, 2 Dowl. N. S. 465. 
 
 (0 Taken from Eng. R. G. No. 2 of M. T. 1854. 
 
 (m) It should be noted that this, unlike the preceding rule, does not extend to 
 affidavits sworn abroad. The words in brackets constitute a restriction which is 
 not to be found in the Eng. R. G. from which the rule under consideration is 
 taken. 
 
 (v) The express restriction to "any cause or civil proceeding" is also deserv- 
 ing of note. 
 
 (?/) There is no such provision as that here enclosed in brackets to be found in 
 the Eng R G. The only penalty of contravening the English rule appears to 
 be the loss of costs. 
 
 (z) M. T. 1856. 
 
[Rs. Ill, 112 
 
 Rs. 113, lU.] 
 
 TRINITY TERM, 1856. 
 
 681 
 
 in any matter 
 any iutcrlinea- 
 
 ] («) to be here- 
 bc written in a 
 jrson, and shall 
 I be numbered 
 led to a distinct 
 »r any affidavit 
 lie; [nor shall 
 I to obtain or to 
 'rmission of the 
 IS term next. (:) 
 
 Holmes V. London 
 15 Q B 682 A 
 L3 a sufficient com- 
 
 jT)n of which was 
 e a])plies to affitla- 
 . 5 C. B. 43(1; In 
 
 sed and a new one 
 er, C. B. Where 
 the whole is bad: 
 e erased, and " by 
 nor to an ernsiire 
 interlineation in 
 Lister y. liouU 
 the jurat be scnrtd 
 le drawn through 
 . an erasure: lb. 
 slow it tiie words, 
 . and the remain- 
 that the afliilavit 
 
 iocs not extend to 
 f>striction which is 
 r consideration is 
 
 t" ia also dcserv- 
 
 kets to be found in 
 h rule appears to 
 
 113. (a) When any affidavit is sworn before any Judge or any 
 conimisisioncr by a person who from his or her signature appears to be 
 illiterate, (b) it shall be certified in the jurat that the affidavit was read 
 in the prcscn^.e of the party administering the same to the party making 
 the suuie, (r) and that such last mentioned party seemed perfectly to 
 understand the same, {d) and also wrote or made his or her signature 
 or mark in the presence of the party administering the oath, (e) 
 
 114. (/) No affidavit shall be read or made use of for any purpose, 
 if swum before the attorney of the party in the cause on whose behalf 
 Buch affidavit is made, or before the clerk or partner of such attorney; {g) 
 but this rule shall not extend to affidavits to hold to bull. (1i) 
 
 (<;) Taken from Edjj R. G. No. 141 of II. T. 1853, the origin of which was Eng. 
 R. K B of 31 Geo 111. 4 T. R 284. The practice ordered by this rule has 
 for a long time prevailed in this Province: Moore v. James, Dra. Rep 246. 
 
 (h) Wliere deponent makes his mark, it should appear from the jurat that the 
 mark was made : Wilton v. Jilakey, 9 Dowl. P. C 352. 
 
 (f ) The officer administering the affidavit ought himself to explain it : Disney 
 T. Anthony, 4 Dowl. P. C. 765. 
 
 {(/) Tills statement must be made in the jurat, whether or not the deponent be 
 SWora in court: Ilaynes v. Powell, 3 Dowi. P. C. 699. 
 
 (f) The person who administers the affidavit must in all cases sign the jurat: 
 BUI V liameU, 9 Dowl. P. C. 810. The signature of the commissioner without 
 the addition " a commissioner, Ac," held insufficient: liabcock v. The Municipal 
 Council of Bedford, Ac , 8 U. C. C. P. 627; but the designation " a com'r, Ac ," is 
 eufficient : I'awson et al y. Hall et al, 1 Prac. R 294 ; Brett y. Smith, Ih 309. 
 "Sworn before me at Belleville " (not saying in what district or county) sufficient: 
 Ridlcn V Wtlkins, I Cham. R. 26 So "sworn before me at Toronto" (not 
 BPying whether in the city or township uf that name) : Regtna v. Brown, E. T. 
 16711, C P. 
 
 {/) Taken, with modifications, from Eng. R. G. Nos. 142, 143 of II. T. 1853, 
 the origin of wliich was Eng. R. G. Nos 3, 6 of H T 2 Wm. IV. : Jervis N. R. 
 68, 59 The rule does not appear to apply to proceedings on the Crown side of 
 the courts: Reyina y. Mizen, 1 Dowl. N.S. 866; nor to revenue cases: .'6. 
 
 {g) The fact that the commissioner is the attorney or the clerk or partner of 
 the attorney in the cause, may be shown by affidavit: IJodysnti y Walker, Wight. 
 62; or by the statement of the party himself: Haddock y Williams el al, 7 Dowl. 
 PC 327 The person objected to must be the attorney in the cause or his partner 
 or clerk: Wi'hans y. Hockin et al, 8 Taunt. 485; Doe d Grant v. Roc. 5 Dowl. 
 P. C 409; //. re Gray, 21 L. J Q. B 380. It is no objection that he is the 
 general low adviser: Williami y. Hoekin et al, A Taunt. 435. It roust appear 
 that he was acting as attorney in the cause when taking tlio affidavit : Kidd v. 
 Davif. 6 Dowl. P C. 568. An affidavit sworn before a clerk of the attorney of 
 the landlord, on an application to set aside judgment against the casual ejector 
 under the old ejectment practice, was held not to be within the rules : Voe d. 
 Oram y Roe, 6 DowL P. C, 409; see also Doe d. Cooper y. Roe, 2 Y. A J. 284. 
 
 (h) Sucli also was the prnctice in this Province before this rule: Brett y. 
 Smith, 1 Prac. R. 309. 
 
 ■-'S^r 
 
 ^ 3| 
 
 1 'fe t 
 
 t ii ' 
 
682 
 
 UEGUL^ QZNERALE8 AS TO PRACTICE. [Rs. 115-118. 
 
 tlS, (0 An affidavit sworo before a Judge of either of the Courts 
 sbali be received in the Court to which such Judge belongs, though 
 not entitled of that Court, but not in any other Court, unless entitled 
 of the Court in whicb it is to be used, {j) 
 
 116. {k) Where a special time is limited for filing affidavits, no 
 affidavit filed after that time shall be made use of in Court, or before 
 the Master, unless by leave of the Court or a Judge. (/) 
 
 117'. (»») No rule, which the Court has granted upon the founda- 
 tion of any affidavit, shall be of any force unless such affiilavit shall 
 have been actually made before such rule was moved for and produued 
 in Court («) at the time of making the motion, (o) 
 
 818. (i>^ In all cases in which a defendant appears in person, (q) 
 
 (0 Taken from Eng. R G. No. 144 of H. T. 1853, the origin of which was Kng. 
 R. G. No 4 of H. T. 2 \Vm. IV. : Jervis N. R. 68. 
 
 [J) This is an exception to the general rule, that whenever there is a cause in 
 court all affidavits made in that cause must be entitled in the court: see fhhnrn 
 v. T'ltum, 1 B. ttP. 271; Wigden v Dirt, 1 Dowl N.S. 93; also Rolfex. Burke, 
 4 Bing. 101; Uund» v. Clements, 11 M. «fe W. 816; Ex parte Randall, 17 L. J. 
 Q. B.'232. 
 
 (A) Taken from Eng. R. G. No. 145 of H. T. 1853, the origin of which was Eng. 
 E. G. of M. T. 30 Geo. III. 
 
 (t) Affidavits when once filed by a party to a cause may be made use of by 
 the opposite party, even tliough the party filing them decline to use them: I'rict 
 V. JIat/man, 7 Dowl. P C. 47- An attorney who is bound but refuses on demand 
 to file affidavits may be compelled to do so by the court: Ex parte Dicas, 2 Dowl. 
 P. 0. 92; Pilviore v. Ilood 8 Dowl. P. C. 21. Where an exhibit is not fik-d by 
 the one party to a suit, his opponent is entitled to a copy: Tebbutt v. Ambler, 
 7 Dowl. P. C. 674; see also Daoenport v. Jones, 8 Dowl. P 497- When once 
 filed for a particular purpose, the court may refuse to allow it to be taken off the 
 file to be used for any other purpose: Price v. Seeley, lb. Cu3. 
 
 («) Taken from Eng. R G. No. 146 of II. T. 1853, the origin of which was Eng. 
 R. G. of U. T 36 Geo. III. 
 
 (n) No affidavit made on a Sunday is of any force: Doe d. Williamsnn el nlv. 
 Roe, 3 D. & L. 828. Extracts from a letter contained in an affidavit cannot be 
 read: Vaughan v. Roso tt al, 8 U. C, Q. B. 506. Papers are suffitiintly 
 desciibed as being annexed without further description: McKay v. McDearmid, 
 2 Cham. U. 1. 
 
 (o) Under special circumstances the court may allow tlie affidavit to be made 
 afterwards: Perring v. Kymer, 4 N. A M. 477; Davits \. Skerlock, 7 Dowl P. 
 C 592; Bury v. Clench, 1 Dowl. N.S 848. If there be merits, the court may 
 allow a rule to be drawn up on readmg a supplementary affidavit : see Ildcrton 
 V. Burt, 6 C. B 433. 
 
 {p) This rule is original and framed to meet the peculiar circumstances of 
 this province, in which for some purposes judges of county courts have p jwer 
 to grant rules and orders in causes pending in the superior courts. 
 
 {(j) Every appearance by a defendant in person must give an address, at 
 
Rs. 119-121 ] 
 
 TRINITY TERM, 185G. 
 
 683 
 
 )f which was Kng. 
 
 of which wns Eng. 
 je made use of by 
 
 of which was Eng. 
 
 and :in application is made to the Judge of the proper County Court 
 for any summons under the authority of the Common Law Procedure 
 Act, 1856, which ought to be served on the defendant, (r) the 
 affidavit on which the plaintiff grounds his application Bhajl, an)ong 
 other things, state that the defendant resides at some place within the 
 jurii<diution of sucR County Court. 
 
 HULKS, SUMMONSKS, AND ORDERS. 
 
 110. (m) Every rule of Court shall be dated the day of the month 
 and year on which the same is drawn up, and need not specify any 
 other time or date. 
 
 IdO. («•) All rules which by the English practice may bo had as a 
 matter of course upon signature of counsel at side bar, or are given by 
 the MastiT, Clerk of the Papers, or Clerk of the Rules in England, (x) 
 are to be given by the Clerks of the Crown and Pleas, or their deputies, 
 in the same manner, and the same may issue on any day in term or in 
 vacation, (.r) 
 
 131. (a) A rule may be enlarged if the Court think fit, without 
 notice. (6) 
 
 wliieh it shall be sufficient to leave all pleadings and other proceedings not 
 requiring personal service : section 62 C. L. P. Act. 
 
 {)•) The judge of the proper county court must be determined upon according 
 to the circumstances. One test ns regards this section is tliat he mist be the 
 judge of the county in which defendant resides. 
 
 (h) Taken from Eng. R. G. No. 149 of II. T. 1853. 
 
 (w) Tiiis rule is original. 
 
 (.r) Side bar rules are those which are said in England to have been moved 
 at the side bar in court, but they were afterwards obtained <if the clerk of the 
 rules upon precipe. The reference in this rule to rules which according to the 
 Eiii:;lisli practice may be had as a matter of course upon sigtiature of counsel at 
 side bar is not strictly correct, a» it does not aj)pear there are any rules which 
 issued on the signature of counsel at side bar Side bar motions were made by 
 till' attorneys and not by counsel, nor upon the signature of counsel : AiMirdd v. 
 I'pUm et al, 22 U. C Q. B. 437, per Wilson, J. 
 
 (z) It is ordered in England that " side bar rules may be obtained on the last 
 as well as other days of term:" R. G. No. 150 ot II. T. 1853. 
 
 ((() Taken from Eng. R. G. No. 161 of II. T. 1853, the origin of which was Eng. 
 R. Ci. No 97 of II. T. 2 Wra. IV: Jervis N. R 87. 
 
 (ft) An enlargement may be asked either on the part of the party who is called 
 upon to show cause, or of the party who obtained the rule. If the former, it 
 will be sufficient for him to show that the rule was not served in sufficient time : 
 Awm. 1 Smith, 199; Jieginav Andemon, 9 Dowl. P. C. 1041. If the latter, 
 thirc must be some special ground. A rule cannot be enlarged after the day oa 
 
 H 
 
 
684 
 
 BEGULA GENERALES AS TO PRACTICE. [Rs. 122-125. 
 
 ltS9* (c) All enlarged rules shall be drawn up for the first day in 
 the ensuing term, unless otherwise ordered by the Court. ('/) 
 
 133. (e) It shall not be necessary to issue more than one suninions 
 for attendance before a Judge upon the same matter, (/) and ibe party 
 taking out such summons shall be entitled to an order od the return 
 thereof, unless cause is shown to the contrary. (^) 
 
 134- (fi) An attendance on a Bumra'.«ns or on an appointment be- 
 fore a Master for half an hour next immediately following the return 
 thereof, shall be deemed a sufficient attendance, (t) 
 
 13«i. 0) All written consent^upon which orders for signing judg- 
 ment are obtained shall be filed and preserved by the clerk of the 
 Judge's chambers. (^) 
 
 which it is returnable upon the « parte application of the person who obtained 
 it: aee Abrahatns v. Davinon, 6 C B 622; Price et al v. Tlwmax, 11 C H ."iiB. 
 It is not the practice either of the Queen's Bench or Exchequer in Kngland to 
 serve an enlarged rule : Anon. 1 Smith, 199 ; though it is of the Common I'kas: 
 BaUy V. Marriott, 6 C. B. 420. 
 
 (e) Taken from Kng. R. G. No. 1 52 of H. T. 1853, the origin of which was Eng. 
 R. G. of M. T. 4 Vic.: 12 A. <fe E. 586. 
 
 {d) Enlarged rules for a particular day come on for argument as if they had 
 been originally drawn up for that day. When drawn up for the first day of the 
 ensuing term they are generally di.sposed of within the first two days of that 
 term : Pat. MacM. <fe M. Prac. 1096. 
 
 (e) Taken from Eng. R. G. No. 163 of H. T. 1853. 
 
 (/) Though in England before 1853 it was necessary so to do, it was never 
 necessary in Upper Canada. 
 
 {g) To obtain such an order it is requisite that there should be either an 
 admission or affidavit of service 
 
 (A) Taken from Eng. R. G. No. 154 of H. T. 1853, the origin of w(. : -'.3 
 Eng. R G. of T T 36 Geo. Ill: 6 T. R. 402. 
 
 (i) As to the effect of the party arriving a few moments after t'tc k:r <•■.<:■ a 
 of the halt hour : cee Moyie v. Dingle, 23 L J. Q. B. 305 
 
 (j) Taken from Eng. R. G. No 156 of H T. 1853, the origin of whicii was 
 No 1 of the "Orders of the Judges." dated 12th June, 1846 (14 M. A W. 3^,5,) 
 the history of which is given by Parke, B , in Dixon v. Sleddon, 15 M. A W. 4.S0. 
 
 (A) This and the two following rules seem to have in view a practice which, 
 though common in England, has never prevailed in this Province It is that 
 which enables a defendant, after the commencement of an action, when havin 
 no defence, to assent to a judge's order that upon proceedings being stayed tin 
 judgment shall be signed if the debt and costs be not paid within a time speci- 
 fied The proceeding is one by consent, and gives jurisdiction to a judi^e in 
 chambers only where both parties assent to the exercise of such jurisdiction: 
 Bee Kirby v Elliton, 2 Dowl. P. C. 219; Reynoldi v. Sherwood, 8 Dowl. V C 
 ISS; Norton v. Fraier, 2 M. dc G. 916. This order does not operate as a stay 
 
Rs. 122-125. 
 
 Bs. 126-128.] 
 
 TRINITY TERM, 1856. 
 
 685 
 
 136- (0 ^^ actions in which the defendant has appeared by attor- 
 ney, no such order shall be made unless the consent of defendant be 
 given by his attorney or agent, (m) 
 
 127' C») Where the defendant has not appeared, or hns appeared 
 in person, no such order shall be made, unless the defendant attends 
 the Judge, and gives bis consent in person, (o) or unless his written 
 consent be attested by an attorney acting on his behalf, (p) unless the 
 defendant is a barrister or attorney, (j) 
 
 138- (r) Where a Judge's order is made during vacation, it shall 
 not be made a rule of Court before the next term, unless in any case 
 otherwise provided for by Statute. («) 
 
 of proceedings unless so expressed: Michael v. Myers, 6 M. <& G 702; Filmer y. 
 Buinby, 9 Jjowl. P. C. 466 ; and is not a cognovit so as to require all the for- 
 malities necessary in the case of a cognovit: see Baker v. Flower, 8 M. & W. 
 67o; Bray v. Mamon, lb. 668; Thorne et al v. Neal, 2 Q. B. 726. The order, 
 if made, is not revoked by defendant, a feme sole, marrying: Thorpe v. Arglei, 
 1 1). (& L. 831. It may, however, be set aside in case of fraud: Thorne v. et al 
 Neal, 2 Q. B. 726; or under other special circumstances: Wade v. Simeon, 2 D. 
 & L. 658. If default be made, final judgment may be signed as agreed upon : see 
 Bell et al y. Bidgood, 8 C B. 763 ; Andrews et al v. Dtggs, 4 Ex. 827. 
 
 (/) Taken from Eng. R. G. No. 156 of H. T. 1863, the origin of which was No. 
 
 2 of the "orders of the judges," dated 12th June, 1845: 14 M. A W. 335. 
 
 (m) Where a judge's order for judgment had been obtained on a written con- 
 sent, signed by a defendant and .Utestud by an attorney acting also for the 
 plaintiff, the court refused to set aside the order and judgment signed thereon: 
 Dixon y. Sleddon, 16 M. 4 \V. 427. 
 
 (n) Token from Eng. R. G. No. 157 of H. T. 1863, the origin of which was No. 
 
 3 of the "orders of the judges," dated 12th June, 1845 : 14 M. «fe W. 335. 
 
 (o) One partner has no implied authority to bind his co-partner by such a 
 consent: Uambidge y. De la Croufe et al, 3 C. B. 742. 
 
 {p) The attestation had better be as nearly as possible the same as that 
 required in the case of cognovits and warrants of attorney : see 11. G. pr, 26 
 sad notes thereto. 
 
 (q) "Which is also the rule as to cognovits and warrants of attorney : see note 
 /to R. G. pr. 26. 
 
 (r) Taken from Eng. R. G. No. 158 of H. T. 1853. 
 
 (s) No action lies for disobedience of a judge's order: Dent v. Basham, 9 Ex. 
 469 ; Hookpayton v. Busaell, 10 Ex. 24. The only mode of enforcing it is by 
 making it a rule of court with a view to an attachment : Swaine et al y. Stone, 
 
 4 M. & Scott, 584 ; WiUon v. Northop, 2 C M A R. 326 ; Black y. Lowe, 4 D. 
 4 L 286. The rule is absolute in the first instance : lb. Where from the mis- 
 conduct of an arbitrator the original order could not be obtained, a duplicate 
 order was made a rule of court: Thomas v. Philby, 2 Dowl. P. C. 146. The 
 order, if obtained by fraud, or Jn a case where there is no jurisdiction, appears 
 to be ipso facto void : see Woosnam y. Price, I C. <b M. 862 ; Lander v. Gordon, 
 7 M. <b W. 218. 
 
 
686 
 
 REQULit: GENERALES AS TO PRACTICE. [Rs. 129-131. 
 
 130- (<) When a Judge's order, or order of Nisi Prius, is made a 
 rule of Court, it shall be a part of the rule that the costs of making; the 
 order a rule of Court shall be paid by the party against whom the order 
 is made, (u) provided an affidavit be made and filed that the order has 
 been served on the party, his attorney or agent, (v) and disobeyed. («>) 
 
 130- (x) Rules to show cause shall be no stay of proceedings unless 
 two days' notice of the motion shall have been served on the opposite 
 party, (y) except in the cases of rules for new trials, or to enter verdict 
 or non-suit, motion in arrest of judgment, or for judgment non obstante 
 vereiUcto, or to set aside an award, or to enter a suggestion, {z) or by 
 the special direction of the Court, (a) 
 
 NOTICES-SEUVICE OF, AND OF RULES, PLEADINGS, &c. (/.) 
 
 (t) Taken from Enj^. R. G. No. 159 of H. T. 1853, the origin of wliicli was Eng. 
 R. G. of T. T. 3 Vic: 12 A. & E. 1 ; 1 M. & G. 278; 6 M. &. W. 6()2. 
 
 (m) I'ven thongli sucli party be an infant: Beames v. Farley, 5 C. B. 178. 
 
 (v) Service upon a Toronto agent is a sufficient service : Thompson v. Uijlinj, 
 11 M. <fe W. 861 ; Martin v. Stinson et al, 7 U. C. L. J. 184; In re Robertson 
 «t al, 5 Prac. R. 132. 
 
 (w) The order would appear to be " disobeyed " if upon application to tlie 
 Toronto agent, by virtue of tlie master's allocatur, he refuse to pay, uj)on the 
 ground tliat he has received no instructions, though he promise to write and 
 advise payment: Thompson v. Billing, 11 M. <fe W. 361. Wlien the demand is 
 • on the town agents, and not on the principal, an interval of some days should be 
 allowed to elapse after a demand for money, to amount to disobedience, so as to 
 entitle a party to the costs of malting the order a rule of court : In re Robertson 
 et alf 5 Prac.'R. 134, per Morrison, .1. If the party have not disobeyed at the 
 time the order is made a rule of court, so much of the rule as relates to costs 
 may be rescinded: In re Farrant and Goodrich, 21 L. J. Q. B. 272. If, without 
 a previous demand, the order be made a rule, the costs of the application will not 
 be given : Carter v. The Burial Board for the Township of Tong, 6 II. «fe N. 523. 
 
 (x) Taken from Eng. R. G. No. 160. 
 
 (y) The notice may be in this form: — Title of Court and Cause. Take notice, 
 that this Honorable Court will be moved on, <Scc , or as soon thereafter as counsel 
 can be heard, for a rule to show cause, &c. Dated, i&c. 
 
 (z) In each of which the inference is, that without a notice of motion tlie rule 
 to show cause operates as a stay of proceedings, or rather will be granted with a 
 stay of proceedings as part of the rule. 
 
 (a) When there is a stay of proceedings, no step can be taken by the opposite 
 party until the rule is disposed of: Wgatt v. I'rebble, 6 Dowl. P. C. 268 ; Anderson 
 V. Southern, 9 Dowl. P. C. 994; Murray v. Silver, 3 D. AL. 26. 
 
 (b) When proceedings of any kind are taken by el'.,her party to a cause, which, 
 if unopposed, would prejudice his opponent, it is generally necessary tliat the 
 opponent should have notice of the same. The ordinary mode of notifying an 
 opponent of a proceeding such as a writ, rule or pleading, is by serving him with 
 a copy thereof. In England pleadings, though delivered, are not actually filed. 
 
Rs. 131-134.] 
 
 TRINITY TERM, 1856. 
 
 687 
 
 131- (c) All notices required by these rules or by the practice of the 
 Court shall be in writing, (jl) 
 
 139. ('') A copy of every declaration and sabscquent pleadin^r shall 
 be served upon the opposite party, (/) whether the case be bailable or 
 not bailable, (</) and whether the action bo against any person having 
 privilege or othcrwi.se, and as well where the plaintiff has entered an 
 appoaranc ' for the defendant, as where ih6 defendant has appeared in 
 person or by attorney, (/t) 
 
 133. (0 Whore the residence of a defendant is unknown, (_/) 
 pletidinfrs, rules, notices, and other proceedings may be stuck up in the 
 proper olHce, (/•;) but not without previous leave of the Court or of a 
 Judire. (/) 
 
 134. («i) It .shall not be necessary to the regular service of a rule 
 
 At ono time it wns held in this Province to bo unnecessary to servo jilnns : 
 McKinnon v. Johnston, 3 O. S. 298; Kingy. Dunn, MS. E T. 2 Vic R. & H. 
 Die; " Practice, i. 8 ; but now service of pleadings is generally deemed essential 
 to due filinjy, that is to sav, n pleading to be duly filed must be both tiled and 
 served: Tyaon v. Maclean, 1 Prac. K. 339; R. G. pr. 132. 
 
 (c) Taken from Eng. R. G. No. 161 of H. T. 1853. 
 
 (d) It is well to observe that " all notices required by these rules or the prac- 
 tice of the court," in other words, every notice made necessary during the pro- 
 gress of the cause, must be in writing. Where in England a writ issued for a 
 sum under £20, tl»e notice mentioned in the endorsement thereon, pursuant to 
 Eng. R. G. E. T. 18fi7, of the defendant's intention to oppose the plaintiff's 
 application for costs, was held to be a notice within the meaning of the English 
 rule corresponding with the one here annotated : Woodward v. North, U. <& 
 N. 7'Ji). 
 
 (e) This is a reprint of our old rule Q. B. No. 4 of E. T. 6 Vic.: Cam. R. 19. 
 
 (/) Shall he served, Ac. From this it is seen that every pleading, to be avail- 
 able, must " be served upon the opposite party." Before 1842 the practice was 
 otherwise: see note b to R. G. pr. No. 131. 
 
 {g) As to bailable proceedings: see section 34, C. L. P. Act, and notes thereto. 
 
 (/i) Appearances by plaintiffs for defendants are, since the C. L. P. Act, ren- 
 dered unnecessary if not abolished: section 54, C. L. P. Act. 
 
 (i) Taken from Eng. R. G. No. 162 of II. T. 1853. 
 
 (j ) And he has not, it is presumed, appeared by attornej'. 
 
 [!:) See section 61, C. L. P. Act. 
 
 (/) This rule is in effect similar to rule Eng. R. G. No. 49, H. T. 2 Wm. IV. 
 .Jcrvis N. R. "72 ; and under it, as well as this rule, the previous leave of the 
 court is necessary to make the service allowed a good service : O'Neill el al v. 
 Everett, 3 Prac. R. 98. 
 
 (m) Taken from Eng. R. G. No. 163 of H. T. 1853, the origin of which was Eng. 
 R. G. No. 61 of H. T. a Wm. IV. : Jervis N. R. IS. 
 
 
 ■3 
 
 i 
 
 M 
 
 ■if 1 •. 
 
688 
 
 nr.OVLJE QEN£aALE8 AS TO PaACTICE. 
 
 [u. m. 
 
 or order that the original rulo or order shall be shown, unless sight 
 tacrcof bo demanded, except in cases of attachment, (o) 
 
 ItiS- (i>) Service of pleadings, notices, summonses, orders, rules 
 and other proceedings, shall, after the first day of Miohuolmas Term 
 next, (<]) bo made before seven o'clock, p.m., (r) except on Saturdays, 
 when it shall bo made before three o'clock, P.M. («) If made after 
 seven o'clock, p.m., on any day except Saturdays, the service shall be 
 deemed as made on the following day; and if made after throe o'clock, 
 P.M., on Saturday, the service shall be deemed as made on the following 
 Monday. (/) 
 
 (o) In order to bring a party into contempt for not obeying a siibpcEna, th« 
 original sultpcena must bo shown to tlie partv at tlie time of service : I'iiehtr 
 V. Kinq. 14 L. J. Q. B. 99; Wadiworth v. Marshall, 1 C. 4 M. 87; even thoui^li 
 the defendant be an attorney, and have previously evaded service of the writ: 
 Smith V. IVtueott, 6 M AG. 267 ; but if there be no other remedy tlian by 
 attachment and the court be satisfied that the party is avoiding service, such 
 service may, it seems, bo dispensed with: In re Whalley, 14 M «fe W 731. 
 Service by placing tlie paper under the door of the attorney's oflice, without 
 some evidence of its having come to hand, is not good service : Bitniett et til v. 
 Lewis, 7 C. B. N.S. 791. But where a defendant had left the country, and had 
 not since been heard of, service at bis last place of residence was allowed as 
 good service: Styrling v. Lloyd, 9 L. T. N.S- 730. There may be a good ser- 
 vice by post: Smith v. Campbell et al, 6 Dowl. P. C 728. Wliere such a mode 
 of service has been agreed upon, the time counts from tho mailing of the notice, 
 and not merely from the time of its receipt: Robson v. Arbulhnot, 10 U. C. 
 L. J. 186 The paper mailed is entirely at the risk of the attorney to whom it 
 is sent : lb. 
 
 (p) Taken from Eng. R. G. No. 184 of H. T. 1853, for which was substituted 
 Eng. R. G. 8tli May, 1856. 
 
 iq) M. T. 1856. 
 
 (r) The hour hitherto was understood to be nine o'clock, p.m. though this was 
 by no means uniform. The time varied in each of the English courts of Queen's 
 Bench, Common Pleas and Chancery. It is now the same in all, viz. 7 p m. 
 
 (») This was a step towards the introduction into this Province of the Satur- 
 day half-holiday allowed in England. The last hour for service on Saturday in 
 England is two, not three o'clock as in our rule. In England the long vacation 
 extends from 1 0th August to 24th October, and it is ordered that no pleading 
 shall be delivered between these dates. In a case where the last day for a plead- 
 ing expired on a Baturda^ (9th August) a plea delivered after 2 o'clock of that 
 day was held to be as if delivered on Monday (11th August) and therefore a 
 nullity : Sharp v Fox, 28 L. T. Rep. 127. A plea delivered in England betweea 
 10th August and 24th October, is a nullity; Afilli y. Brown, 9 Dowl P. C. 151; 
 where the time for pleading expired on luth August, it was held that judgment 
 for want of a plea signed on 11th August was too soon: Morris v. Uaucock, 
 I Dowl N.S. 320; Severin v. Leicester, 12 Q. B 949; see further, Wilson et al 
 V. Bradslocke, 2 Dowl. P. C. 416; where a month's time to plead had been given, 
 and twentv-five days of it were unexpired on 10th August, it was held that 
 defendant had twenty -five d.-.ys after 24th October : Trinder v, Smedley, 3 DowL 
 P. C. 87. 
 
 (/) Service of a summons in this Province on Saturday, after 8 o'clock, p v., 
 returnable on Monday following, is not good service, as being in effect service 
 
R. l.'iG.] 
 
 TRINITY TERM, 1850. 
 
 689 
 
 [U. 135. 
 
 , unless sijiht 
 ) 
 
 , orders, rules, 
 ;huelaia9 Term 
 on Saturdays, 
 If made after 
 icrvicc sUall be 
 r three o'clock, 
 n the following 
 
 g R 8ubp(Bna, the 
 service : I'iieher 
 87 ; evon lliough 
 •vioe of the writ: 
 remedy tlian by 
 line; service, such 
 14 M & W 731. 
 y's oflice, without 
 ; B'tnielt e( nl v. 
 ) country, and had 
 CO was allowed as 
 lay be a j^ood ser- 
 'here such a mode 
 ilina; of the notice, 
 rhtithnot, 10 U. C. 
 torney to whom it 
 
 oh was substituted 
 
 H. though this waa 
 I courts of Queen's 
 all, viz. 7 P M. 
 .vince of the Satur- 
 icc on Saturday ia 
 
 the long vocation 
 „ that no pleading 
 [ast day for a plead- 
 sr 2 o'clock of that 
 it) and therefore a 
 ,1 England between 
 9Dowl P.C. 161; 
 Lid that judgment 
 alorri* V. Hancock, 
 Irther, ^Tilson et al 
 
 id had been given, 
 it was held that 
 
 ■. Smedley, 3 DowL 
 
 Iter 8 o'clock, p >» • 
 Ig in effect service 
 
 130- 00 A book shall be kept by the clerk of the Crown of each 
 of the Courts in Toronto, at his office, to be there inspected by uny 
 attorney or his clerk without fee or reward ; (i>) and every attorney 
 practising in the said Courts and residing within the city of Toronto or 
 the liberties thereof, or having an office and "arrying on his business 
 within the said city, (w) shall enter in such hook (in alphabetical order) 
 his name and place of business or some other T;roper place within the 
 city, where he may be perved with pleadings, notices, summonses, 
 orders, rules and other proceedings; and as often as any such attorney 
 shall change his place of business or the place where he may be so 
 served as aforesaid, he shall make the like entry thereof in the said 
 book ; {x) and all pleadings, notices, summonses, orders, rules and other 
 proceedings which do not require a personal service shall be deemed 
 sutSciently sewed on such attorney, if a copy thereof shall be left at 
 the place lastly entered in such book with any person resident at or 
 belonging to such place ; (z) and if any such attorney shall neglect to 
 make such entry, (a) the fixing up of anyjnotice or of the copy of any 
 
 of a summons on the day on which it is returnable, which is unreasonable : Ball 
 tt at V. Cowdley, 3 U. C. L. J. 131 : see also Connelly v. Bremner, L R. 1 C. 
 P. 557. 
 
 (m) Taken from Eng. R. G. No. 165 of H. T. 18.53, the origin of which was Eng. 
 R. G. No. 8 of M. T. 1 Wm. IV. : Jervis N. R. 9. 
 
 [v) The clerk of each of the Courts, i. e. Queen's Bench and Common Pleas, is 
 required to keep a book, and in each of these books the necessary entries must 
 be nuido. 
 
 (k) This is as regards this Province an entirely now provision. No former rule 
 ever required more than the entry in a book to bo kept for tiio purpose in 
 Toronto, of the names of agents of attorneys " not resident in the Home District:" 
 R. No. 2 of M. T. 4 Geo IV. Cam. R. 1, which was afterwards extended to 
 attorneys " residing in the Home District, and not having an office in the city of 
 Toronto :" R. of H. T. 10 Vic. 4 U. C. Q.B. 92. Of these rules the rule here anno- 
 tated which is made to apply to attorneys " residing within the city of Toronto, 
 or the liberties thereof, or having an office or carrying on business within the 
 said city," is an extension. 
 
 (ar) In the old rule of Wm. IV. the word "pleadings" was omitted, but not 
 withstanding the rule was understood to embrace pleadings and other proceedings 
 in a suit: see Blackburn v. Peat, 2 Dowl. P. C. 293. 
 
 («) "With any person resident at or belonging to such place, <tc." It may 
 be a question whether service on a menial servant or other person not engaged 
 la the attorney's business would be sufficient. 
 
 (fl) It is provided that every attorney practising, Ac., shall enter in such 
 book, Ac , his name and place of business, Ac, and as often as any attorney 
 shall change his place of business, Ac, he shall make the like entry thereof in 
 the book, Ac. It ia conceived that the neglect of an attorney to make eitlur of 
 
 44 
 
 ' u 
 
 \[ 
 
 % 
 
 TJ 
 
 ,\ 
 
 i' I' 
 
 th '■ I 
 
 ' < hi 
 
 
GOO reoui.;e generale8 ah to puactice. [R. l.j;. 
 
 pleadings, notice, Buminonfl, order, rule, or other procccdingH fur such 
 attorney in the ufHuo aforesaid ahull bo deemed a suQlcient service, (b) 
 
 137- ('') Every other attorney practising in tho said Courts (d) hIiuII 
 «nter in the suid book (in like alphabetical order) his name and place 
 of buHinens, and also in an opposite column tho name of some attorney 
 having un ufiice and carrying on business in the city of Toronto as 
 his agent; (/) and all pleadings, notices, summonses, orders, ruIcH and 
 other proceedings which do not require a personal service shall be deemed 
 sutficiently served on such first-mentioned attorney, if a copy thcrcut' 
 shall be Hcrved on his booked agent in manner mentioned in the next 
 preceding rule. (</) And if any such attorney shall neglect to make the 
 
 these entries would bo a Bufficlcnt excuse for tho opposito pnrty to fix iip a 
 paper requiring service in tho otiico of the proper court at Toronto. 
 
 (b) Wiietlier necesearyor not it would be well in this cnse to mark the papers 
 on the outuido as papers left for such attorney : see C. L. 1'. Act, section 01. 
 
 (f) Tliis rule appears to be original. 
 
 ((/) "Every other attorney, Ac," ». e. every attorney other than attoniftys 
 " residing witi.in tho city of Toronto or the lilicrties tliercof, or having an oHice 
 and carrying on business within the eaid city:" R. G. pr. 13U. 
 
 (/) Tlie agent at Toronto is a general agent upon whom papers may be 
 served in any cause, no matter when, where, or how commenced : si'*t J\trh: v. 
 Audcriton, 'i U. C. Q. B. 2 ; Clemow v. Jler Majesty'n Ordnance, lb. 458; Ilmml 
 ton v. Brown ct al, 1 Cham. R. 267; Nmtt/hton et al v. Hudson, 1 Trac. R 160; 
 Smith v. Roe, 1 U. C. L. J. NS. 164. A defendant who had been sued in tiie 
 county of Wentworth, but who lived in tho county of York, employed an 
 attorney in Toronto to defend him. This attorney instructed another attorney 
 in Hamilton to enter an appearance. A declaration was then offered to tliu 
 attorney in Hamilton, and declined on the ground that he had only been enijiioyed 
 to enter an appearance. Interlocutory judgment was afterwards signed and 
 damages assessed. An application to set aside the judgment failed on the ground 
 of Inches and other reasons: Hamilton v. Brown el al, 1 Cham. R. 267- Wliere 
 defendant's attorney, livine in St. Thomas, sent an appearance to attorneys in 
 London whence the writ of summons issued, to enter there for him, which was 
 done, and plaintiff afterwards (on 24th January) served the London attorney witii 
 a declaration and demand of plea, which did not reach the defendant's attorney 
 till 25th January. Jleld that the time for pleading did not count till the 25th 
 January: Smith v. Koe, 1 U. C. L. J. NS- 164. Where an attorney rcsidini,' and 
 practising in the county where the action is brought appeared there for tlie de- 
 fendant, formed a partnership with another attorney carrying on business there 
 in their joint names, and then changed his actual residence to another county, 
 leaving his name in the proper books in Toronto as still of the former county, 
 and occasionally afterwards attended and did business in the former county, ser- 
 vice of notice of trial on his partner there wos held to be a good service, not- 
 withstanding a private arrangement between the parties that tlie partner should 
 only attend to new business : Baby v. LangJois, lb. 209. Delivery of a rule nisi 
 to the town agent of an attorney who had left the country, and leaving copies at 
 his place of residence and office, were held sufficient on an application to dis- 
 charge an articled clerk from his articles: In re McGregor, lb. 18. 
 
 {g) R. G. pr. 136. 
 
R. 138] 
 
 TRINITY TERM, 1850. 
 
 601 
 
 lings for such 
 it service, (l) 
 
 ourta ((/) »\\fx\\ 
 aiue and place 
 Bome utturne]/ 
 of Toronto as 
 ders, rules and 
 ilihll bo deemed 
 a copy tiioreof 
 jed in the next 
 lect to make the 
 
 )m papers may be 
 [iced : Bi't» Pitrl'C v. 
 ve, lb. 468; Il'imil- 
 ,n, 1 Prnc. U 160; 
 , been sued in the 
 ork, employed an 
 d another attorney 
 hen offered to tbo 
 jnly been employed 
 rwnrds signed and 
 ailed on the ground 
 tn. R. 267. Wliere 
 mce to attorneys in 
 for him, which was 
 )ndon attorney with 
 defendant's attorney 
 count till the tJ5tli 
 [torney residin;; and 
 jd there for the de- 
 ,g on business there 
 to another county, 
 the former county, 
 former county, ser- 
 good service, no^ 
 „ the partner should 
 [livery of a rule nisi 
 nd leaving copies at 
 \\ application to dis- 
 6. 13. 
 
 entry in thi.s rule mentioned, tho fixing up of any notice or of the copy 
 of any pleading, notice, Huwmons, order, rule or other pricecding for 
 sach attorney in tho Crown office at Toronto, ahull bo deemed a sufficient 
 service. (A) And as often as any such attorney shall change his place 
 of business or his ogcnt, he shall make an entry in the said books of 
 such change, which last entry shall supersede all former ones. (0 Pro- 
 Tided always, that in all cases service on the attorney at his office or 
 usual place of business, in tho manner mentioned in the next preceding 
 rale, instead of on the booked agent, shall be deemed good service, (j) 
 
 138. (,k) In all cases where a party sues or defends in person, (F) 
 he shall, upon issuing any writ of summons or other proceeding, or 
 entering an appearance, (m) leave a memorandum with the clerk or 
 deputy clerk of the Crown, who shall file the same as a paper in tho 
 cause, stating an address or place in the county, within which the first 
 process in the cause shall have been or shall be sued out, (n) at which 
 all pleadings, notices, summonses, orders, rules, or other proceedings 
 Dot requiring personal service may be lefl; such address or place to be 
 not more than two miles from such office, and if such memorandum 
 shall not be left, or if such address or place be more than two miles 
 from the office aforesaid, then the opposite party shall be at liberty to 
 proceed by sticking up all pleadings, notices, summonses, orders, 
 rules, and other proceedings, in such office, (o) 
 
 (h) See notep to 0. L. P. Act, section 61. 
 
 (0 See R. 6. pr. 186. 
 
 (j) If the attorney of either party do not reside, or have not a duly authorized 
 agent residing in the county where the action has been commenced, service may 
 be made upon the attorney wherever he resides, or upon his duly authorized 
 agent in Toronto: C L. P. Act, section 61. 
 
 {k) Taken fiom Eng. R. O. No. 166 of H. T. 1853. 
 
 (0 See notes to section 62, 0. L. P. Act. 
 
 (m) As to appearance in person : see section 62, C. L. P. Act and notes thereto. 
 
 (n) With reference to an appearance, if it sufficiently show defendant's addi- 
 tion, an objection that the address does not appear on a separate memorandum 
 will not be entertained : Jonet y. Oner, 3 U. C. L. J. 91. 
 
 (o) In an action by an infant the writ was sued ont in person, and one E. B. 
 being appointed next friend, a copy of the order for that purpose was served on 
 tho defendant's attorney, endorsed "£. B. next friend, at S. N. C's, No. 8, 
 Symond's Inn, Chancery Lane," and a declaration was afterwards delivered with 
 a notice to plead similarly signed. The plaintiff having obtained a verdict, it 
 was held that the above was a safflcient notice to the defendant that S. N. C. 
 was authorized by the next friend to act as attorney : Bryant v. WHton, 3 C. B. 
 N.8.722. 
 
 Hi 
 
 «v?. 
 
 O 
 
 m 
 
 ■•i Kl 
 
 :! ..I 
 
 >;..« 
 
 
 iiii 
 
 1^ 
 
 
692 
 
 REGULiG QENERALES AS TO PftACTICE. [Rs. 139, 140, 
 
 !■'£■ s 1 
 
 m. 
 
 M U 
 
 • 1 
 
 130' («) Id all cases where a plaintiff shall have sued out a writ ia 
 person or a defendant shall have appeared in person, and either party 
 shall by an attorney of the Court have given notice in writing to the 
 opposite party, or the attorney or agent of such party, of such attorney 
 being authorised to act as attorney for the party on whose behalf such 
 notice is given, (t) all pleadings, notices, summonses, orders, rules, and 
 other proceedintd, which, according to the practice of the Courts, are 
 to be delivered to or served upon the party on whose behalf such notice 
 is given, shall thereafter be delivered to or served u^on such attor- 
 ney, (u) 
 
 ATTACHMENT. 
 
 140. (w) Rules for attachment shall be absolute in the first instance 
 in the two following cases only : 1st, for non-payment of costs on a 
 Master's allocatur ; (y) rnd 2nd, against a sheriff for not obeying a 
 rule to return a writ or bring in the body, (z) 
 
 (a) Taken from Eng. R. G. No. 167 of II. T. 1853. 
 
 (<) Of course if either party sue or appear by attorney the rule here annotated 
 will not apply. It has in view the appointment of an attorney after the suing 
 out of process, or the appearance of a defendant in person respectively. A 
 defendant may appear at any time before judgment : section 51 C L. P. Act. 
 
 (m) " Shall hereafter be delivered," Ac. It is not intended that a party avail- 
 ing himself of this rule shall by so doing gain any undue advantage over hia 
 opponent. 
 
 {w) Taken from Eng. R. G. No. 168 of H. T. 1858. 
 
 (y) It is no objection to the rule absolute that the party had only been served 
 with the original rule and allocatur immediately before the application : Steely. 
 Compton, 9 Jur. 181. If that rule direct more than the payment of costs the 
 the rule for an attachment can only be nisi : Ex parte Townley, 8 Dowl. PC 39; 
 Hatfield v. Ilatherfield, 1 D. <& L. 809 ; as where the costs are payable under an 
 award: Daniel et al v. Beadle et al, 2 Scott, N. R. 156; but see Daniels v. 
 Wealds et al, 9 Dowl. P. C. 44; Thornton v. Billingsey, 2 Chit. R. 57 n; or 
 where the rule is a side bar rule by a clerk of assize: Anon. 3 Jur. 864; Ashmon 
 V. Rvpley, 2 Scott. N. R. 203. The rule may be made absolute in the first 
 instance, though the party be a married woman : Regina v. Johnson, 6 Q. E. 335; 
 or a prochein amy : Newton v. London, Brighton and South Coast R. Co., 
 7 D. & L. 328 : where a rule of court ordering payment of costs, was a rule 
 making a Judge's order ordering a party to do en act a rule of court, and tiie 
 applicant would not abandon the right to apply for <iq attachment on the other 
 party for disobedience of the order, a rule absolute in the first instance was 
 refused: Crisp v. Oroombridge, 27 L. J. Q. B. 183. But process of contempt 
 for non-payment of money or for non-poyment of costs is now abolished : Con. 
 Stat. U. 0. cap. 24, a. 13.' The remedy is a writ ogainst goods: lb s. 19; see 
 Clifton V. Durand, 3 Prac. R. 60 ; In re Thomas and Brooke, lb. 78 ; Niagara 
 A- Detroit Rivers R. Co. v. Buckwell, /6. 82: The Queen y. Simpson, lb. 339; 
 In re Judge of Elgin, 8 U. C. L. J. 70 ; Dickey et al v. Mulholland, 2 Prac. 
 R. 169. 
 
 (2) If a sheriflf having returned eepi corpus go out of office, he moy notwith- 
 standing be ruled to bring in the body: see R. G. pr. 106. 
 
 - »— - 
 
Bee, he may notwith- 
 
 Rs. 141-143.] 
 
 TRINITY TERM, 1856. 
 
 693 
 
 AWARDS. 
 
 141. (h) Where a rule to show cause is obtained to set aside an 
 award, (c) the several objections thereto intended to be insisted upon 
 at the time of moving to make such rule absolute shall be stated in the 
 rule to show cause, {d) 
 
 143. (e) Costs may be taxed on an award, although the time for 
 moving to set aside the award has not elapsed. (/) 
 
 INSOLVENT DEBTOUa. 
 
 143. The affidavit on which a debtor in close custody in execu- 
 tion shall apply under the Common Law Procedure Art, 1856, section 
 800, for his discharge from custody, shall not be sworn sooner than 
 tno day after that on which the notice of application shall expire, 
 and shall in all cases state whether any interrogatories were served 
 before the expiration of the fifteen days' notice, and if so, whether 
 answers thereto upon oath have been duly made and filed, and when 
 notice thereof was given. 
 
 (?') Taken from Eng. R. G. No. 169 of H. T. 1 853, the origin of which was Eng. 
 R. K. B. of T. T. 2 Geo. IV : 4 B <t Al. 539, with which our R. Q. B. No. 3 
 of E. T. 6 Geo. IV. : Cam R. 3, corresponded. 
 
 (c) Tlie rule seems equally to apply to certificates of an arbitrator : Carmichad 
 V. Ilouclien, 3 N. <fe M. 203 ; see also Atlcnby v. Proudlock et al, 4 Dowl. P. C. 54. 
 
 ('/) No ground, though valid, can be relied on if not so stated : Gretifell et al 
 V. Eihjcome et al, 7 Q. B. 661. Th. jjections must be specific : see Boodle v. 
 Davieii, 4 N. &. M. 788; Gray v. Leaf. 8 Dowl P. C. 654; Staples v Ilaij, 
 1 1), cfe L. 711; see further Allenby v. Proudlock et al, 4 Dowl. P. C. 54; Dunn 
 V. Wiirl.lers, 9 M <fe W. 293. IIow far rule defective as to the grounds is iu-Iped 
 by affidavits: see Rawsthorn v. Arnold, 6 B. <fe C. 629; Dunn v. War lers, 
 
 1 Dowl. N S. 626; Staples v. Hay, 1 D. & L. 711. The rule should bo drawn 
 up on reading the anard itself or a copy of it: Sherry v. Oke et al, 3 Dowl P.C. 
 340; Barton y. Random, 5 Dowl. P. C. 597; Carmichael v. Hunter, 1 II & W. 
 120, n; Davis v. Po'ler, 21 L. J. Q. E. 134. It should also be drawn up on 
 reading the rule making the submission a rule of court: Browne v. t'oUyer. 2t> L, 
 J. il B 426; Oswald v. Earl Grey, 24 L. J. Q. B. 69; Jacobs v. Rattan, 
 
 2 Ciiam. R. 138. 
 
 (<■) Taken from Eng. R. G. No. 170 of H. T. 1853. 
 
 (/) If it bo intended to sign judgment for the costs of the cause, they should 
 in general be taxed separately from the costs of the reference: Biyiall v. Gale, 
 4 Scott, Jf . R. 570. The costs up to the reference Jire costs in the cause : Brown 
 V. Nelson, 13 M. &. W. 397 ; Including the costs of making the order a rule of 
 court or any proceeding in the cause after the award : Goodall v /^'.v 4 Dowl. 
 P. C 1 ; Fryer v. Slurt. 16 C. B 2H Cos*3 of reference may be taxed as costs 
 in the cause when directed to abide the event of the action : Deere v A' rk/i"iiae, 
 20 L. J. Q. B. 195 So if it bo the duty of the arbitrator merely to certify: 
 Brou-n v. Nelson, 13 M A W. 397; Dceie v. Kirkhouse, 20 L. J. Q.'B. 195. As 
 to juilgment :*■ a verdict has been taken subject to a reference, the judgment 
 
 :^i:- 
 
 
 
 m 
 
 
 'Hi 
 
694 
 
 REQ'JLiE OENERALES AS TO PRACTICE. [Ra. 144-14G. 
 
 
 CLERKS AND DEPUTY CLERKS OF THE CROWN. 
 
 144. On every appointment made by the clerk or deputy clorka of 
 the Crown, (wi) the party on whom the same shall be served shall 
 attend snch appointment without waiting for a second, («) or in 
 default thereof, such clerk or deputy may proceed ex parte on the first 
 appointment, (o) 
 
 14«S« (p) No business shall be transacted in any of the offices of the 
 Court, (q) either in procuring or suing out process, or in re-enterinc; 
 judgments, or taking any proceeding whatever in a cause, unless upon 
 the personal attendance of the party on whose behalf such business is 
 required to be transacted, or of the counsel or attorney of such party, 
 or the clerk or agent of the attorney, or the clerk of the agent. (/•) 
 
 146* (s) The oflSces of the clerks of the Crown and Pleas shall be 
 kept open as follows, that is to say : (0 during term from ten in the 
 
 may be sign'ed in the ordinary course ; but if no verdict has been taken, the award 
 may be enforced at any time after publication: 0' Toole et al v. Pott, 7 El. A- B. 
 102; 3 8. c. Jur. N.S. 261. 
 
 (m) Taken from Eng. R. G. No. 172 of il. T. 1853. 
 
 (n) It was never the practice in this Province to make it necessary for either 
 party to wait for a second appointment. 
 
 (o) It is the usual practice for the master upon an appointment to allow one 
 half hour's grace before proceeding with the taxation : Landon v. Stubbs, 3 U. 
 C. L. J. 70. 
 
 (p) This rule is original. 
 
 (q) Before the C. L. P. Act, 1856, a writ of execution issued by an officer at 
 his own house was decided not to be illegal: Rolker et al v. Fuller, 10 U. C. Q. 
 B. 477. The practice of so doing was, however, censured: lb. It has been 
 held to be irregular for a deputy clepk of the crown to file papers at his own 
 residence apart from his office and out of office hours: Fralick v. Uujfman, 
 1 Cham. R. 80. 
 
 (r) The object of this rule is, it seems, to prevent unqualified persons trans- 
 acting business " in the offices of the courts," by providing that it shall be done 
 only upon " the personal attendance of the party on whose behalf such business 
 is required to be transacted, or of the counsel or attorney of sucli party, or the 
 clerk or agent of the attorney, or the clerk of the agent." The effect of tlie rule 
 may be to prevent the clerk or deputy clerk of the crown from transacting busi- 
 ness even on the written request (letter) of a solicitor. Both in town and coun- 
 trj' a personal attendance appears to be necessary. The court in one case grantei' 
 an attachment against a deputy clerk of the crown for having issued process 
 witliout authority: Rex v. Fraser, 3 O.S. 247 Afterwards he was dismissed 
 from office and made to pay costs : 76. 
 
 («) The origin of this rule appears to be R Q B No. 18 of M. T. 13 Vic It 
 h.is been several times amended. It is published hero as amended by U. G. of 
 T. T. 24 Vic. 20 U. C. Q. B. 123. 
 
 {t) Tliis rule seems to bo restricted to " the offices of the clerks of the crown 
 
[Rs. I44-14(>. 
 
 sputy clerlca of 
 le served shall 
 nd, (><) or in 
 irte OD the first 
 
 he offices of the 
 r in re-entering 
 se, unless upon 
 iuch business is 
 of such party, 
 le agent. (/•) 
 
 d Pleas shall be 
 from ten in the 
 
 n taken, the award 
 f. Pott, 1 El. i B. 
 
 ccessary for either 
 
 tment to allow one. 
 ion V. Stubbs, 3 U. 
 
 ed by an officer at 
 Fuller, 10 U. C Q. 
 lb. It has been 
 papers at his own 
 Itck V. JJi'ffiii'in, 
 
 fiod persons trnna- 
 liat it shall be done 
 ehalf such business 
 such party, or Iha 
 ,ie effect of tl>e rnle 
 m transacting busi- 
 . in town anil coun- 
 in one case grantet' 
 ing issued process 
 he waa dismissed 
 
 fM. T. 13 Vic.^ It 
 mended by U. tl. of 
 
 clerks of the crown 
 
 R. 147.] 
 
 TRINITY TERM, 1856. 
 
 morning to four in (he afternoon, (w) and (except between the first 
 day of July and the twenty-first day of August) (v) at other times 
 from ten in the morning until three in the afternoon («') — Sundays, 
 Christmas-day, Good Friday, Easter Monday, New Year Pay, (.c) and 
 the birth-day of the Sovereign, and any day appointed by general 
 proclamation for a general fast or thanksgiving, excTjpted j (;/) and 
 between the first day of July and the twenty-first day of August, both 
 day? inclusive, the said ofiices shall be open from half-pist nine in the 
 forenoon until twelve o'clock noon. 
 
 1'17. (2) All rolls and records (a) shall be upon parchment or paper 
 of such width and length as the clerks of the Crcwn shall prescribe by 
 written notice, to be put up in some conspicuous place in thoir respec- 
 tive ofiices and in the offices of the several deputy clerks of the 
 Crown, (c) and none of these officers shall be bound to receive any 
 roll or record not made up in conformity to such notice, and such rolls 
 
 ftn<l pleas." With reference to " the ofTices of depiiti/ clerks of the crown and 
 pleas" a similar provision exists: Con. Stat. U. C. cap. 10, s. 38. 
 
 (!/) The offices of the deputies are not required to be kept open later than 3 
 o'clock during term more than at any other period of the year: Con. Stat. 
 U. C. c 10, 8 38 Tiie reason ai)pnrently is that as the courts during term sit 
 at Toronto, in tlio county of York, the business of the outer counties is not 
 directly affected thereby. 
 
 (v) Special provision is hereafter made for tlio long vacation. 
 
 (iv) Upon this point the Con. Stat. U. C. cap. 10, s. ;j8 and the rule here 
 annotated, accord. 
 
 (r) 'N'ew Year's day is made n holiday for deputy clerks of the Crown, Con. 
 Stat. U. C. c. 10 s. 38. 
 
 (//) By the Interpretation Act, the word " holiday" includes Sundays, New 
 Year's da}-, the Epiphany, the Annunciation, Good friilay, tlie Ascension, Cor- 
 pus Christ i, St. Peter's and St. Paul's days, All Saints' day, and Christtuas day, 
 and any day appointed by proclamation for a general Fast or Thaidisi^iving : 
 
 was set aside witii costs: The Trust and Loun Co. v. Uickson, 2 U. C. L. J. 
 
 Con. Stat. Can. cap. 5, s, 0, sub-s. 12, A judgment entered on Easier .Monday 
 
 fA " ~ • " ~ ' 
 
 N.s. ititj. 
 
 (j) The origin of this rule appears to be 11. K. li. Xo. 3 of II. T. 1 Wm. IV. : 
 Caui. 11. 13. 
 
 (") All rolls and records, ^c. The ordinary roll is a judgment roll. About 
 it there can be no doubt. There may also be a roll whei: a recognizance of bail 
 is enrolled. This too is clearly within the meaning of the rule — if not as a 
 " roll" certainly as n " record." Whatever is enrolled in a Com-t of Record may 
 be said to be recorded, so that " roll" and " record" may bo considered us cover- 
 tible terms. 
 
 (f) Qu. Must the act of the clerks of the Crown bo joint, or nan either one 
 wiUiout reference to the other prescribe, &c ? 
 
 1 ' 
 
 ^ #' 
 
696 
 
 REGUL^ GENERALBS AS TO PRACTICE. [Rs. 148-150. 
 
 and records shall not exceed, when folded, fourteen inches in length (e) 
 and four in breadth, (/) written upon at least a sheet of paper, and 
 folded accordingly. 
 
 148. (A) Whenever a deputy clerk of the Crown is required to 
 transmit any roll, record, or paper in any cause {«) to the principal 
 6flBce in Toronto, he shall enclose and seal up the same in an envelope, 
 and shall address such envelope to the Clerk of the Crown in the pro- 
 per office, (,/) and he may thereupon deliver such sealed envelope to 
 the attorney who has required the transmission thereof, (taking a 
 receipt from him), or may send the same by post, (/c) and in no case 
 shall any original papers be delivered out of the custody of the deputy 
 clerk of the Crown, except for the purpose of being transmitted to 
 Toronto, unless by order of the Court or a Judge. (/) 
 
 140. In counties where the petit jurors are paid by the county 
 or united counties, the marshal or clerk of assize, or person dischartring 
 his duties, shall, previous to the entry of each record, be entitled to 
 demand and receive from the party entering the same the sum of peven 
 shillings and sixpence for each record marked "inferior jurisdiction," 
 and the sum of fifteen shillings for every other record, (o) 
 
 CLERK OF THE PROCESS. 
 
 IcSO. (7) The clerk of the process shall, on receiving a pr/B<'/))e to be 
 filed by him, issue any writ of summons required for the com- 
 
 (e) " Thirteen inelies" was the prescribed length under the old Rule No. 3 of 
 H. T. I Wm IV.: Cam. R. 13. 
 
 (/) Tliis agrees with the old rule. 
 
 (/() This rule appears to be original. 
 
 (?) Ench deputy clerk of tlie Crown is ex officio clerk of assize in his county: 
 Con. Stat. IT (J. cap. 11,8. 9; and it is his duty "within twenty-four hours after 
 notice in writing delivered to liini in his ofHce for that purpose, and payment of 
 the necessary l)ostage, to enclose, senl up, and transmit by post to the ])rii|icr 
 principal otHce at Toronto, addrci?sed to the clerk thereof any record of iMsi 
 Prius in his custody mentioned iu such notice, together with all exhibits tiled at 
 the trial :" C. L. P. Act, s. 228. 
 
 (j) This quite accords with C. L. P. Act, section 228. 
 
 (fc) The party requiring nnj' record, exhibit, or other paper, to be sent to tlie 
 clerk of the judge's chambers, must, with the notice pay the postages incident to 
 the transmission of the paper required by him : C L. P. Act, section 228. 
 
 (/) A deputy clerk of the crown is forbidden to deliver to any party any 
 exhibit filed without a judge's order to that effect: C. L P. Act, section 221). 
 (0) Inferior jurisdiction of superior courts is now abolished. 
 (7) This rule is originaL 
 
Rs. 148-150. 
 
 Rs. 151, 152] 
 
 TRINITY TERM, 1856, 
 
 697 
 
 meiiceraent of an action j and on receiving aprxripe with the affidavit 
 of debt required by law, or a prsccipe and affidavit with a Judge's 
 order for the arrest of a party, to be also filed by him, (?<) shall issue 
 any writ of capias for the commencement of an action ; (i-) and on 
 receiving a prsecipe, affidavit, and a Judge's order, to be also filed 
 by him, shall issue any writ of attachment against an absconding 
 debtor. (?«) 
 
 I«SI. (.i) After issuing either of such writs for the commencement 
 of an action in one of the Superior Courts, (^) he shall issue the next 
 writ, whatever "♦; may be, for the commencement of an action in the 
 other of such Courts. (2) 
 
 \5a. («) All other writs required by the Common Law Procedure 
 Act, 1856, to bo issued by the clerk of the process to the parties or 
 their attorneys, shall be issued according to the established practice. 
 
 J ■•#■1111 
 
 ii. f. 
 
 old Rule No. 3 of 
 
 [ii) The pracipe must not only be received before the issue of the writ,, but 
 be, it is presumed, filed in the proper office and during oitice hours : see Fralick 
 V. llufman, 1 Cham. R. 80. 
 
 (v) It is necessary that the clerk of the process, before issuing a writ, should 
 inform himself that the party applying is entitled to receive it. Process for the 
 commericenient of an action is citlier bailable or non-bailable. If bailable, it may 
 be asked eitlier for a "debt certain" or for "a cause of action other than a debt 
 certiiin." If for a debt certain there must be, first, a pracipe, and, second!}-, an 
 atiiilavit of debt. If for a cause of action other than a debt certain, tliere must 
 be, first, a prwcipe, secondly, an affidavit, and third!}', a judge's order. When 
 the writ asked for is non-bailablo, it may be issued upon a prwcipe only. 
 
 (»•) The affidavit may be made by the plaintiff, his servant, or agent, and 
 must be to the effect that the perso so departing is indebted to the j>liruitiff in 
 a sum exceeding filOCi, and stating the cause of action, and that the deponent 
 halligood reason to believe and doth verily believa tliatsneh person liath departed 
 from this Province and hath gone to (stating some place to which tiie ab^oond- 
 inq; debtor is believed to have fled, or that the deponent is unable to obtain any 
 infi-.-malion as to what place he hath fled) with intent to defraud the plaintiff of 
 his just dues, or to avoid being arrested, or served with process, Ac. : Con. Stat. 
 U. C. cap. 2.5, s. 2. This affidavit must be accompanied with corroboratory affi- 
 davits of two other credible witnesses : lb. 
 
 {x) This rule is original. 
 
 (.'/) The writs must not be issued in blank: Grimshaive v. White ef al, 3 Prac 
 R. o20. The fact that the writ in some respects differs from the pracipe is no 
 ground for setting the writ aside: Cotton v. McCuUey, 1 U. C. L. J. 272; Grim- 
 thawe V. White el al, 3 Prac. R. 320. 
 
 (z) The clerk of the process receives all fees on writs issued by him, and tliey 
 form part of the consolidated revenue fund of the Province : Con, Stut. U. C. 
 cap. lo, ss. 40, 41. , 
 
 (0) This rule ia original. 
 
 
 
 m 
 
 "H 
 
 
 1 
 
 W'W ' 
 
 
 Km '^■ 
 
 
 |t^';i; 
 
 
 ||; 
 
 \ 
 
 il;:;l 
 
G98 
 
 REGULiE GENERALES AS TO PRACTICE. [Ra. 153-155. 
 
 I 
 
 
 lt>3. ('0 The clerk of tbe process shall attend iu his office at all 
 times when the clerks of the Crown and pleas are required to attend 
 in their respective oflSces, (e) and shall permit all necessary searches 
 respecting writs so issued by him, and the affidavits and papers whereon 
 such writs are grounded, and shall grant office copies of all such affida- 
 vits and papers on payment of the usual fees. (/) 
 
 TAXATION OF COSTS AND DIRECTIONS TO TAXING OFFICERS. 
 
 1«S4. The practice of the Courts as to costs and the services to be 
 allowed for in all proceedings in the taxation of costs, (/t) shall be 
 governed, in all cases not otherwise provided for, by the established 
 practice of the Court of Queen's Bench in England. (<) 
 
 155- O) In any action of the proper competence of the County 
 or Division Courts respectively, (Jc) in which final judgment shall 
 have been obtained by a plaintiflF without costs, or in which a plaintiff 
 shall obtain execution on proceedings in the nature of a final judg- 
 ment, (/) no more than County or Division Court costs, as the case 
 may be, shall be taxed, without the .special order of the Court or a Judge; 
 but this rule shall not extend to costs on interlocutory proceedings. 
 
 {d) It hns been held that a writ of mand'imus may bo sealed and signed by the 
 cler^ of the i^rocess: Burdett v. Sawyer, 2 Prac. II. 398. 
 
 (e) See R. G. pr. 146. 
 
 (/) The charge for an exemplification or office copy of proceedings is 6d. per 
 folio. So for every search, if not more than two terms, 6d. If exceeding two 
 and not more than four terms, Is. If exceeding four terms or a general search, 
 2s. 6d : see Table of Costs. 
 
 {h) The origin of this rule appears to be our R. K. B. N"o. 1 of M. T 4 Geo. 
 IV. : Cam. R. 6. 
 
 (i) In cases not otherwise provided for by statute or rule of court, tiic allow- 
 ance of costs to either party in suits and penal actions is regulated by the lawn 
 of England: section 313, 0. L. P. Act 
 
 {j) The origin of this rule appears to be our R. K B. No. 9 of E. T. 11 Geo. 
 IV. : Cam R. 6. It is published here as amended by R. G. of T. T. "24 Vic. 
 20 U. C. Q. B. 123. 
 
 {h) Where the plaintiff's claim is within the jurisdiction of a, county court, it 
 is no ground for a certificate for full costs that the defi-ndant's set-otF cannot be 
 tried iu the county court: Gooderham v. Chilver, 5 O.S. 496. 
 
 [I) It is necessary in the case of a verdict by consent without taking of evi- 
 dence or other hearing, where the amount is within the jurisdiction of an inferior 
 court, to apply under this rule for an order for full costs : see note j to section 
 328, C. L. P. Act. The order may be made unless it appear that the eaufe is 
 one which the plaintiflF was bound to sue in the inferior court : Geroux v Tf/^"", 
 8 U. C. L J. 19. The order should not be ex parte: lb. The rule was extended 
 to cases in which a " plaintiff obtained execution on proceedings in the niituro 
 of final judgment," in consequence of doubts which arose as to the construction 
 
Rs. 153-155. 
 
 is office at all 
 ircd to attend 
 ssary searches 
 apers wlicrpon 
 all such ailida- 
 
 FICERS. 
 
 services to be 
 , (/t) shall be 
 t.be established 
 
 ) 
 
 of the County 
 judgiueiit shall 
 rhich a plaintiff 
 f a final judg- 
 its, as the case 
 jurt ora Judgej 
 proceedings. 
 
 and signed by the 
 
 eedings is 6d. per 
 
 If exceeding two 
 
 ft general searcli, 
 
 1 of M. T. 4 Geo. 
 
 court, tlie allow- 
 lated by the law8 
 
 of E T. llGfO. 
 of T. T. 24 Vic. 
 
 a county court, it 
 set-otf cannot be 
 
 out taking of evi- 
 ction of an inferior 
 , note J to section 
 tliat the caufe is 
 Geroux v r«/7""< 
 rule was extended 
 ings in the nnturo 
 ,0 the construction 
 
 Rs. 156,157.] 
 
 TRINITY TERM, 1856. 
 
 699 
 
 ItSG. (o) In onj action of the proper competence of the County 
 Court, (jo) in which the venue could not, according to the law and 
 practice of the Superior Courts, be changed upon the u.sual athdavit 
 only, (q) it shall not be a sufiicient ground to certify at the trial thereof 
 that it is a fit cause to have been withdrawn from the Countv Court, 
 and commenced in either of the Superior Courts, or for either of those 
 Courts, or for a Judge in Chambers, to order the allowance of any 
 other than County Court costs, that the defendant or defendants, or 
 any of them, had removed from the county in which the debt was 
 contracted, or the cause of such suit or action accrued, into any other 
 county or elsewhere out of such county, or that he or they resided 
 or were served with process in any other place than within such 
 county, (m) 
 
 l*i7. (v) Fees shall in no case be taxed as between party and party 
 to more than two counsel upon any trial or argument, (w) 
 
 R. 32; Jones v. Rcid, 
 Oarrett et al, 2 rrnc. 
 
 of tlie old rule : see Cochrane v. Scott et al, S Prac. 
 1 I'rnc. 11. 247; lUorse y. Teelzel, lb. 376; Watson v. 
 R. 70. 
 
 (o) The origin of this rule appears to be our R. Q. B. No. 42 of H. T. 13 Vic. 
 
 {p) See note k to preceding rule. 
 
 (q) See note h to section 89, C. L. P. Act. 
 
 (!() Unless otherwise provided b}- statute or rule of court, declarations and 
 otliur pleadings and notices required to be served in any action, whether in the 
 auiiciior or county courts, may be served in any county: C. L. P. Act, sec- 
 tion 84. 
 
 ((.') The origin of this rule appears to be our R. K. B. 10 of E.T. 11 Geo. IV. : 
 Cam. R. 6. 
 
 (iv) It is to be observed that there is no power reserved to the court or a 
 judge by rule or order in any case to allow fees to more than two counsel as 
 bftufen party and party. There is no such rule in England: Morris v. Ilur.i, 
 1 t'liit. II 544. If the master allow only one counsel in a case in wliich the 
 court or a judge tliink two should be allowed, there may be a revision of taxa- 
 tion : GrindaU v. Godman, 6 Dowl. P. C. 378; Sharpe v. Ashbi/, 12 M. & W. 
 7o2. The fees of a second counsel may in many cases be allowed if it were pro- 
 per tliat lie should be employed for the purpose of taking notes : Dax Prac. 207 ; 
 Marshall on Costs, 2nd ec. 291. It is not usual to allow more than one counsel 
 on a reference : Hawkins v. Rigby et al, 8 C B. N.S. 271 But the rule is not an 
 inticxible one: lb. ; and where the court thought more than one counsel should 
 have been allowed, a revision of taxation was directed : Sinclair v. The Great 
 E'lstern Railiuay Co. L. R. 6 C. P. 135. The master's direction is subject to 
 the control of the court where a proper case is shown for its interference : In 
 re Titletl and Stracey, lb. 185 Where on the taxation of costs in an action on a 
 policy of insurance, where the questions involved were of an extremely compli- 
 cated and important character, the master having duly considered all the cir- 
 cumstances, allowed the expenses of sending a barrister as commissioner to 
 
 
 S^IP 
 
 ■'■'I' 
 
 
 ' , m 
 
 
 4'1 
 
700 
 
 REGULJE GENERALES AS TO PRACTICE. [lis. 1 58-101. 
 
 1«58. (t) No counsel fee shall be taxed on any rule which may bo 
 obtained without filing a motion paper in court in term, (y) 
 
 139. (s) At the foot of, or accompanying every bill of costs, [when 
 the action is special and the disbursements are large, and the fees 
 paid to counsel exceed those which the taxing oflScer is permitted to 
 tax,] («) there shall be an aflSduvit of the attorney in the cause or the 
 agent or clerk having had the management thereof, that the di.sbur.se. 
 ments charged in such bill are correct and were actually paid, and that 
 the several sums charged for mileage were actually paid (naming the 
 
 party to whom payment was made), that the sum of £ with brief 
 
 at trial or argument, or as the case may have been, was paid to Mr. — , 
 and that the pleadings were special and were revised by Mr. — . (c) 
 
 160- (fi) In all cases an affidavit of payment of mileage, and to 
 whom paid, is required. («) 
 
 101. (/) When judgment is signed on a cognovit, (7) or on a 
 Judge's order authorising the plaintiff to sign judgment, (/t) no decla- 
 ration to ground judgment shall be necegsary or allowed on the taxa- 
 tion of costs. (?) 
 
 examine witncssea in tlie Canaries, and the court refused to interfere with his 
 discretion: Y;/lesias el al v. The Royal Exchange Assurance Corporation, Ih 141. 
 Counsel fi-es should in cjeneral be exclusively as for fee with brief at the; trial: 
 Doe d. Boulton v. Switzer, 1 Cham R. 83. The fee may, however, be taxed, 
 even though counsel did not attend the trial : Henderson v Comer, 3 U. C. L. J. 
 29. Counsel cannot tax a counsel fee in his own case against his opponent, but 
 this rule does not extend to his partner: lb. It is now held that no single jud^e 
 is authorized to grant an oi'der for a larger couusel fee than the tariff specities: 
 Ham et ux. v. Lasher, 24 U. C. Q. B. 357. 
 
 (a;) The origin of this rule appears to be our R. K. B. of E. T. 11 Geo. IV. : 
 Cam. R. 7. 
 
 (»/) See note x to R. G pr. 120. 
 
 \z) The origin of this rule appears to be our R. K. B. No. 18 of E. T. 11 Oeo. 
 IV. : Cam R. 7. 
 
 (a) The old rule was unrestricted in its application. The words above plnrcd 
 in brackets show the cases to which the rule here annotated is restricted The 
 master is in general the judge within certain limits of the amount to be allowed 
 counsel: Fuzokerley y. Rogerson, 1 L M Ac P. 747; Cheshire \. Mumford, 2 C. 
 L. R 746 ; Knight et al y. The Oravesend Railway Co. 27 L. J. Ex. 8. 
 
 (rf) This rule appears to be original. 
 
 (e) See C. L P. Act, section 315. 
 
 {/) This rule appears to be original. 
 
 \g) See R G. pr. 26 c< seq. 
 
 (h) See note * to R. G. pr 125. 
 
 (j) Nor is a writ of summons necessary to ground a judgment on a cognovit: 
 see note b to section 236, G. L. P. Act. 
 
Rs. 158-101. 
 
 T. 11 Geo. IV.: 
 
 ! of E. T. 11 Oeo. 
 
 at on a cognovit: 
 
 Ks. 1C2-1G5.] 
 
 TRINITY TERM, 1S5G. 
 
 701 
 
 163. (J) The costs of attendance by counsel before a Judge ia 
 Chambers shall in no case be allowed as between party and party 
 unless the Judge shall certify for such allowance, (/c) 
 
 163. (0 Any number of names may be included in one Subpoena, 
 and no more than one shall be allowed on taxation of costs, unless a 
 sufficient reason be established to the satisfaction of the taxing officer 
 for the issuing more than one. (m) 
 
 IGl. (h) The same fees shall be taxed and allowed to coroners for 
 services rendered by them in the execution and return in process in 
 civil suits as would be allowed to a sheriif for the same services, and 
 when, according to the nature of the process and the service rendered 
 thoreon, the sheriff, if he had discharged the same duty, would have 
 been entitled to poundage, the same poundage shall be allowed to 
 coroners, and each coroner shall be allowed one shilling for every juror 
 necessarily summoned, and whose name is returned to the clerk of 
 assize, (p) in lieu of any other fee for summoning jurors. 
 
 16«>. ()') All affidavits of increase must be made by the attorney in 
 the cause or some clerk having the management thereof, or by the 
 client, (s) They must set forth the sums paid to counsel, naming 
 
 (y) Tliis rule appears to be original. 
 
 (Jc) The practice before this rule was to allow the item if, in the opinion of 
 the master, counsel were necessary, and it were shown that counsel did really 
 attend. It is difficult to understand on what sound principle the rule has been 
 changed. It is not pleasant for counsel to apply to a judge for an order for a 
 coiin«el fee. It ia not proper that a judge should be troubled with tuch an ajipli- 
 cation. The discretion should be with the master. 
 
 [1) The origin of this rule appears to bo R. No. 8 of E. T. 11 Geo. IV. : Cam. 
 R. 14. 
 
 (m) The second part of this rule grows out of the first part. If any number 
 of names may be included in one subpmna ordinarily, one subp(Ena oidy in a 
 cause may suffice, and if more than one be issued the onus is upon the party who 
 issued it to show a reason for so doing to the satisfaction of the taxing officer. 
 
 (n) This rule appears to be original. 
 
 (/>) On an execution against the person, lands or goods of any debtor, the 
 sheriff may levy the poundage fees and the expenses of the execution over and 
 above the amount recovered by the judgment, d:c. : C. L. P. Act, section 270. 
 
 (r) This rule appears to be original. 
 
 («) The master is empowered to tax costs on view of the proceedings : but if 
 there be any expense incurred which cannot in that manner be ascertained, such 
 OS fees paid to counsel, witnesses, <&c. there must be an affidavit of the extra 
 costs, therefore termed an affidavit of increase. Where the affidavit is in sup- 
 port of the claim of a party entitled to the costs of particular issues, the affidavit 
 
 Mil ! 
 
 n 
 
 i i; 
 
 I III 
 
 
 ;i ' ; 
 
 1'1 
 
702 
 
 REOULJE QENERALES AS TO PRACTICE. 
 
 [U. 105. 
 
 ^^i 
 
 them, and for what service, (/) the names of witnesses, their plupos of 
 abode, the places at which they were subpoenaed, and the dintance 
 which each such witness was necessarily obliged to travel, in order to 
 attend the trial, that every such witness was necessary and material 
 for the client in the cause, that they did attend, and that they did not 
 attend as witnesses in any other cause, (or itherwisc, as the case nwy 
 be). (»«) The number of days which each witness was necessarily 
 absent from home in order to attend such trial must also be accurately 
 stated, (v) If an attorney attends as a witness, it must be stated 
 whether or not he attended at the place of trial as attorney or witness 
 in any other cause, and whether or not he had any other business 
 
 ought to state that the witnesses were called exclusively in support of the issues 
 upon which he succeeded : Pilgrim v. The Southampton and Dorchester Kailway 
 Co. 8 C B 25. The payment should bo money, and must bo made at tlie time 
 the affidavit is sworn : Freeman v. Hasher, 6 D. «fe L. 617 ; Doc d. Mence el al v. 
 IJadlt!/, 17 Q B. 571; Pembrey v. Jones, 11 Jur. 589; Trent v. Harrison, 2 D. 
 & L. 941. 
 
 (<) Fees should in no case as between party and party be taxed to more than 
 two counsel upon nny trial or argument: 11. G. pr. 157. 
 
 (m) It is not usual to allow the costs of witnesses not in attendance : Fryer v. 
 Sturt, 24 L. J. C. P. 154. But where a witness is in attendance and not called 
 because, by reason of something that took place at the trial it was unnecessary 
 to call him, his expenses may be allowed : Miller y. Thomson, 4 M. & G. 260 ; 
 Adamson v. Noel, 2 Chit. R. 200; Empton v. Fairfax et al, 8 A. A E. 269; 
 Bagnallw. Underwood, 11 Price, 610; Allport v. Baldwin, 2 Dowl. P. C 599. 
 The expenses may be allowed where material evidence is given, although the 
 witness was not subpoenaed : Stenhouse v. Barnes, Cas. Prac. C. B. 98 ; and 
 though called by the other side when subpoenaed : Crompton v. Ilutton, 3 Taunt. 
 230 ; Benson v. Schneider, 7 Taunt. 337. A party giving evidence on his own 
 behalf may be paid as a witness: Howes v. Barber, 21 L. J. Q. B. 254; Flower 
 V. Gardner, 3 U. B. N.S. 185 ; Clothier v. Oann, 13 C. B. 220. So the costs of 
 the partner of the plaintiflf's attorney or of his town agent, when material: 
 Butler V. Hobson, 5 Bing. N. C. 128; Chapman v. Rodway, 27 L. J. Ex. 7. 
 The evidence of a witness refused by the judge cannot be allowed : Galloway tt 
 al V. Keyworth et al, 15 C. B. 228; but see Rushworth v. Wilson, 1 B. & C. 267. 
 
 (t)) The witness is entitled to a reasonable sum for going to, remaining at and 
 returning from the place of trial : Dixon v. Lee, 1 0. M. & R. 646 ; Bettley v. 
 McLeod, 5 Dowl. P. C. 481 ; JUartiny. Andrews, 7 El. <fe B. 1. Allowance when 
 subpoenaed by both parties: see Allen v. Yoxall, 1 C. <& E. 315; Bettley v. 
 McLeod, 5 Dowl. P. C. 481. The travelling expenses are to be allowed accord- 
 ing to the sums reasonably and actually paid: Hunter v. Liddell, 16 Q. B. 402; 
 Radcliffe v. Hall, 3 Dowl. P. C. 802. So subsistence money is that which is 
 reasonably and actually paid : Thomas v. Saunders et al, 3 N. <& M. 572 ; Piatt v. 
 Oreene, 2 Dowl. P. 0. 216. A witness who does not arrive until half-past ten of 
 the evening of the day on which the cause is tried cannot be allowed his 
 expenses: Fryer v. Sturt, 16 C. B. 218. Where a cause is over at three o'clock 
 the witnesses may reasonably be allowed the following day to return home, 
 though living only fifty miles off, and accessible by railway trains on the same 
 evening: Jb. The contingent losses which witnesses may have suffered by 
 
[II. 105. 
 
 icir pliipcs of 
 the distance 
 , in order to 
 and ninterial 
 , they did not 
 the rase may 
 xa necessarily 
 bo accurately 
 ust be stated 
 ley or witness 
 )ther business 
 
 ort of thi^ issues 
 rchester Railway 
 nadt* (it tlie time 
 d. Mcnce id id v. 
 Harrison, '2 D. 
 
 :ed to more tlian 
 
 idance : Fryer v. 
 le and not called 
 was unnecessary 
 , 4 M. & G. 260; 
 8 A. A E. 269; 
 Jowl. P. 599. 
 
 en, although the 
 . C. B. 98; and 
 
 Ilutton, 3 Taunt. 
 
 enco on his own 
 
 , B. 254; Flower 
 
 So the costs of 
 
 when material : 
 
 27 L. J. Ex. 7. 
 
 'ed: Galloway et 
 1 B. & C. 267. 
 
 Iremaining at and 
 :. 645 ; Bettlcy v. 
 
 Allowance when 
 
 315; liettley v. 
 
 allowed accord- 
 III, 16Q. B. 402; 
 lis that which is 
 JM. 572; Plait y. 
 [a half-past ten of 
 be allowed his 
 
 . at three o'clock 
 J to return home, 
 [ains on the same 
 
 lave suffered by 
 
 R. IGG] 
 
 TRINITY TERM, 1856. 
 
 708 
 
 there. (ir) The day on which the trial occurred should bo .stated, (x) 
 If maps or plans wore used at tho trial, the necessity for them must be 
 shewn in the affidavit, or no allowance will be mado for them ; the 
 sum paid for them must also be set forth, and that they were prepared 
 or procured with a view to the trial of tho cause. Tho taxing officer 
 is authorised in such case to make a reasonable allowance for maps and 
 plans. (//) 
 
 MISCELL.\XKOU.S. 
 
 I6G. (s) In all cases («) in which any particular number of days, 
 not expressed to bo clear days, (6) is prescribed by the rules of prac- 
 tice of tho Courts, (c) the same shall bo reckoned inclusively of the 
 first and last day, (jlV) unless the last day shall happen to fall on any 
 
 oheying the fiubprnnn cannot be allowed: Thelluxson v. Staples, 2 Douf;. 4.18; 
 Moor V. Adiim, 6 M. 4 8. IfiO; Wiliis v. I'eckham, 1 B. «fe IJ. 515; /.o/*c.w v. De 
 Titslc/, 3 B. tt IJ. 21*2; Collim v. God'-froy, 1 B. & Ad. 950; Trent v. Harrison, 
 14 L. J. Q. B. 210. 
 
 (w) See note u on preceding page. 
 
 (x) As to allowance for attendance of witnes.ses before the day appointed for 
 the oj)ening of tiio court: see Braun v. Molletl, 16 C. B. 514; Cosyrave v. Evans, 
 2 Dowl. P. C. 44S. 
 
 {y) Survej-s and experiments made by scientific persons in order to qualify 
 themaelvea to give evidence are not in general taxable as between party and party: 
 Har. Man. Costs, 50; but plans, models, Ac. useful to aid tho court and jury in 
 coming to a right conclusion, are not looked upon in the same light; I'ilyrim v. 
 The Southamplori and JJorchester Jtailway Co. 8 C. B. 25. 
 
 (z) Taken from Eng. R. G. No. 174 of II. T. 1853, the origin of which was Eng. 
 R. G. No. 8 of H. T. 2 Wm. IV. : Jervia N. R. 93. 
 
 (rt) This rule seems to apply to pleas in abatement: see Ryland v. Wormald, 
 2 M. & W. 393. 
 
 {h) When expressed to be clear days, both the first and last days are excluded : 
 see Liffin v. Pitcher, 1 Dowl. N.S. 767; Regina v. The Justices of Shropshire, 
 8 A. & E. 173 ; Mitchell v. Foster, 9 Dowl. P. C. 527; Youny v. Higgon, (5 M- & 
 \V. 49; Chambers v. Sr)iilh, 12 M. &. W. 2; Blunt v. Haslop, 9 Dowl. P.O. 982. 
 
 (c) Eng. R. G. reads " is prescribed by the rules or practice of the courts," 
 ic. The difference in language deserves attention. These rules were made 
 with a view to the interpretation of the practice of the courts, and not to the 
 interpretation of the language of the C. L. P. Act: Rowherry v. Morgan, 9 Ex. 
 736, per Parke, B. ; Phillips v. Merritt, 2 Prac. R. 233; Cameron v. Cameron, 
 lb. 259. The C. L. P. Act has its own interpretation clause, which is, however, 
 quite in accordance with the rule here annotated : C. L. P. Act, section 342. 
 
 [d) This mode of computation differs from that prescribed by the EnglLsh rule 
 No. 174, which prescribes that the first day shall be exclusive and the last inclu- 
 sive: see Weeka v. Wray, L. R. 3 Q. B- 212; see also Young v. Higgon, 6 M. <k 
 W. 49 ; Gibson et al v. Muskett, 3 Scott. N R. 429- Three days' notice, first and 
 last inclusive, is really only one day. Two days' notice, first and last inclusive, 
 is not one day's notice. But where the meaning of the statute is plain, however 
 
 
 >=■!!*» 
 
 &A 
 
 vf; { ^,,i-; 
 
 
 ;;=r,-4i 
 
704 
 
 REGULiE GENEBALES AS TO PRACTICE. [Us. 107-109. 
 
 day on which the Crown offices are not required to bo open, (e) ia 
 which case the time shall bo reckoned exclusively of the lust day. (/) 
 
 107. (i/) Whenever the word folio is used in any rule or order, ii 
 shall bo dueuicd to mean one hundred words, (/t) 
 
 16H, (0 In all cases unprovided for by statute or rule of Court, the 
 pructicc as it existed in these Courts before the passing of the Cuminon 
 Law Procedure Act, 1856, shall be followed, (j) 
 
 F0RM8 OP PU0CEKDING8. 
 
 100. (/) The forms of proceedings contained in the schedule an- 
 nezed, marked A, may be used in the cases to which they are appli- 
 
 unrcftsonablc it may bo, effect must bo given to it. Monday for Monday is oii-ht 
 days' notice of trial nnder the €■ L. P. Act, as interpreted by section ol2 of tiic 
 act: Moretl v. Wilmott, 20 U. C. C. P. 378. 
 
 (e) See R. G. pr. 146, and notes thereto. 
 
 (/) There are coses which show that where a party who has a certain number 
 of days to do an act, by the practice of tlio court, and the last day for so Joing 
 falls on a holiday, that such day is not to be excluded from the computation 
 unless the offices be closed on that day, in which cnsn the day is to be excludod: 
 see Buddeleuv. Adams, 5 T. R. 170; Wilkirnon v. lirillon, 8 Dowl P. C 82.5: 
 Mesure v. Britten, 2 H. Bl. 61B; Wheeler v. Green, 1 Dowl. P. C. 19t; 7/wm v. 
 Color, 1 F. ife F. 306; Ilugkei et al v. Grffiths, 13 C. B. N.S. 324; Mum/ord v. 
 Hitcheocks, 14 C. B. N.S. 365; Morris v. Barrett, 7 C. B NS. 139; Ittgina v. 
 The Justices of Middlesex, 7 Jur. 396 ; Rowberry v. Morgan, 9 Ex. 730 ; Connelly v. 
 Bremner, L. 11. 1 C. P. 557; Mayer v. Uarding, L. R. 2 Q. B. 410. But tl'iere 
 are cases quite inconsistent with this position: see Eoans v. Junes, 2 B. & 8. 
 46; Flower y. Bright, 2 Johns. «fe II. 590; Feacock v. The Queen, 4 C. B N.S. 
 264 ; WomJhouse v. Woods et al, 29 L. J. M. C 149 ; Pennell v. The Uxbridgt 
 Churchwardens, 31 L. J. M. C. 92; Moore v. The Grand Trunk Railway Co. 
 2 Prac. R. 227; Cameron v. Cameron, lb. 259. The rule here annotated so far 
 as time undti' tlie rule is concerned, has removed all doubt by declaring tiiat if 
 the last day " shall happen to fall on awy day on which tiio crown ofHcus are not 
 required to be open, the time shall be reckoned exclusively of the last day." 
 
 {g) This rule appears to be original. 
 
 (h) In England, for many purposes, a folio means seventy-five words. 
 
 (t) This rule appears to be original. 
 
 (y) This is a very important rule. So far as it operates at all, it qualifies the 
 rule which orders that " all existing rules of practice in either of the said courts 
 in regard to civil actions, save and except as regards any step or proceeding 
 taken before these rules come into force, shall be, from and after the first day of 
 Trinity term, 1856, annulled:" R, G. pr. 1. The object of the present rule is to 
 render the practice of the Queen's Bench in England still applicable to this Pro- 
 vince in cases otherwise unprovided for. When the English courts differ as to 
 the practice, it is proper to follow the practice of the Queen's Bench in prefer- 
 ence to that of the other courts: see Gill v. Hodgson, 1 Prac. R. 381. 
 
 {I) Taken from the rule which follows Eng. R. G. No. 176 of H. T. 1853, but 
 which itself bears no distinct number. 
 
Us. 107-1 GO. 
 
 open, (e) in 
 list day. (/) 
 
 e or ordur, ic 
 
 I of Court, the 
 ' tho Cuiumon 
 
 3 scliodulo an- 
 tbey arc appli- 
 
 Montliiy w eiiiht 
 cliou ai2 of Iho 
 
 a, certain number 
 day for so iloiiig 
 the comj)Utation 
 9 to be exehuled ; 
 Dowl r. C 825: 
 C. 194; Lcn-isr. 
 12-t ; Mumford v. 
 , 139; Regina v. 
 
 730; Conncllyv. 
 
 410. But there 
 Junes, 'ili- & 8. 
 sen, 4 C. B NS. 
 The Uibridgt 
 mk Railway Co. 
 
 annotated so fur 
 
 declaring that if 
 wn offices are not 
 
 ,he last day." 
 
 words. 
 
 dl. it qualifies the 
 of the said courts 
 ep or proceeding 
 ^r tho first day of 
 jresent rule is to 
 cable to this Pro- 
 iourts differ as to 
 Bench in prefer- 
 381. 
 
 R. 170.] 
 
 TRINITY TKUM, 1850. 
 
 705 
 
 cable, with such alterations ;is tho nuturo of tho action, the dc.scrintion 
 of tho Court, tho charnctcr ol' tho parties, or the cirouin.stanccH ot the 
 case may render necessary; (m) but any variance therefrom, not being 
 in matter of substance, shall not affect their regularity. («) 
 
 170. (o) From and after tho last day of thi.s term, (;;) tho tables of 
 costs in civil actions in tho Courts of Queen's Bench and Common 
 Pleas shall bo rescinded, (q) and tho costs sot down in tho schedule 
 annexed, marked IJ, shall be those allowed in taxation. 
 
 (m) In cases to which the forms do not apply, other forms may be framed by 
 analogy: see Smith v. Weddcrburne, 4 1). &, L. 'JUG. 
 
 (n) This would seem to order that no variance, "not beiiii; in iiiattcr of sub- 
 stance," slinll be a ground for sotting aside the particular proceeding for irregu- 
 larity. 
 
 (o) This rule is original. 
 
 {p) Trinity term, 1856. 
 
 (q) Ttiis seems to apply to rules E. T. 11 Geo. IV. and T.T. 7 Wni. IV. ns to 
 costs allowed to attorneys and counsel, llules T. T. 7 Wm. IV. and :i7 II T. 
 13 Vic as to costs in clianibers and to tho clerii in chiimbers. Rule .M. I. 3 V'lc. 
 as to fees to tho clerks of the crown and jileas, Uulo II. T. in Vie. as to costs 
 to sheriffs. Rides T T. 6 VVm. IV. and II. T 12 Vic. as to fees to coroners. 
 Rule E T. 2 Geo. IV. as to fees to criers. Rule T. T. 5 Wm. IV. ns to fi'es to 
 witiie.sses — for all of which provision is made by the schedule B, to which refiv 
 reuce is made. * 
 
 45 
 
 ill*' ^ ^'i 
 
 fwm 
 
 iiiL, 
 
 f H. T. 1853, but 
 
EEGUL^E GEXERALES AS TO PLEADING, 
 
 VADE BT THE JDDORB W PUBSUANCE OF 
 
 THE COMMON LAW PROCEDURE ACT, 1856. (.s) 
 
 TKIXITV TERM, 20 VIC. 
 
 Whereas, under the authority of the Statute of Upper Canada, 
 7 Wni. IV. chap. 3, the Judges of the Court of Queen's Bench in 
 Upper Canada made certain rules, orders, and regulations as to the 
 mode of pleading and other matters, which, by a statute passed in the 
 sixth year of Her Majesty's reign, chaptered 19, were confirmed. Q) 
 
 And whereas it is provided by the Common Law Procedure Act, 
 185G, (m) among other things, that it shall be lawful for the Judges of 
 the Superior Courts of Common Law in Upper Canada, or any four or 
 more of them, of whom the Chief Justices shall be two, by any rule or 
 order to be from time to time by them made in term or vacation, at 
 any time within five years after the Common Law Procedure Act, 
 1850, shall come into force, to make such further alterations in the 
 time and mode of pleading, and of entering and transcribing pleadings, 
 judgments, and other proceedings in actions at law, and in the time 
 and manner of objecting to errors in pleadings and other proceedinjrs; 
 and in the mode of verifying pleas and obtaining final judgment with- 
 
 (a) The powers conferred upon "the judges of the superior courts of conimon 
 law, or any four of them, of whom the cliief justices sliall be two," by the C L. 
 I* Act, 1856, were to frame rules of practice and pleading: section 313. See S3. 
 333, 334, of tlie present C L. P. Act. The foregoing rules, numbering 17ti, are 
 those which relate to practice. The following, numbering 23, are those which 
 s-elate to pleading. The rules as to j)leading are, like the rules as to practice, for 
 the most part taken from the English Keyulce Generales of Hilary and Trinity 
 Term, 1853. 
 
 (0 The rules to which reference is here made are those of Easter Term, 1812- 
 framed b\- the judges under and pursuant to Statute 7 Wm IV. cap. 3, s 1. To 
 make them of binding effect t!ie statute contained a provision that they should be 
 laid before the legislature "if they (the legislature) shall be then sitting, iiniiie- 
 diately upon the making of the same, or if the legislature be not then sitting, 
 then within five days after the next meeting thereof." The legislature were not 
 sittin^^ when the rules were made; and when the legislature did sit the rules 
 were not laid before them within five days. To contirm the rules, notwith- 
 standing this objection, the Statute 6 Vic. cap. 19, was passed. 
 
 (fi) Section 313 : now C. L. P. Act, ss. 333, 334. 
 
TRINITY TERM, 1856. 
 
 707 
 
 Ipper Canada, 
 jn's Bench in 
 tions as to the 
 J passed in the 
 mfirmed. (0 
 Procedure Act, 
 : the Judges of 
 or any four or 
 by any rule or 
 or vacation, at 
 Procedure Act, 
 orations in the 
 )ing pleadings, 
 d in the time 
 ir proceedinirs; 
 udsiment with- 
 
 •ont trial in certain eases, as to them may seem expedient, anything in 
 the said Act to the contrary notwithstanding ; and that all such rules, 
 orders, or regulations, shall be laid before both Houses of the Parlia 
 ment of this Province, if Parliament be then sitting, immediately upon 
 making the same j or if Parliament be not sitting, then within twenty 
 days after the next meeting thereof; and that no such rule, order, or 
 regulation shall have effect until three months after the same shall have 
 been so laid before both Houses of Parliament ; and any rule, order, 
 or regulation, so made shall, from and after such time as aforesaid, be 
 binding and obligatory on the said courts and on all courts of error 
 and appeal in this Province into which the judgment of the said court, 
 or either of them shall be removed, and be of like force and effect as 
 if the provision contained therein had been expressly enacted by the 
 Parliament of this Province : (c) Provided that the Governor of this 
 Province by proclamation, or either House of Parliament by any reso- 
 lution at any time, within three months next after such rules, orders, 
 or regulations shall have been laid before Parliament, may suspend the 
 whole or any part of such rules, orders, or regulations. 
 
 And whereas it is expedient, for the effectual execution of the said 
 Common Law Procedure Act, 1856, that the said rules, orders, and 
 regulations respectively made in pursuance of the said Act of the Par- 
 liament of Upper Canada should be repealed, and that other rules, 
 orders, and regulations should be framed in lieu thereof, (e) 
 
 It is therefore Ordered, that from and after the first day of 
 Easter term next inclusive, (/) unless Parliament shall in the mean- 
 time otherwise enact, the said rules, orders, and regulations, made in 
 pursuance of the said Act of Upper Canada, shall be and the same are 
 hereby repealed; (g) excepting so far as the same, or any of them are 
 necessary or applicable to any pleadings, proceedings, or other nntters 
 
 (c) The English gpt'crnl riilee of H. T 1853, were not laid before Parliament, 
 as was the case vith those of T. T. 185:5, which were iiromulffated urnler 
 section 223 of the C. L P. Act The latter rules, therefore, have the force and 
 cfftc. .,! an act of parliament: per VVilles, in argument of llowberry \. Monjan, 
 9 Ex. 731. 
 
 (f ) The Statute of Wm IV. only authorised the judges to make alterations in 
 "the mode of pleading, <fec :" 7 Wm iv'. cap. 3, s. 1 ; but the C. L P. Act, 
 IS.iH, authorised alterations in " the time and mode of pleading, «tc :" section 
 313, now C. L. P. Act. 8ect=on 834. 
 
 (/) E T. 1857. 
 
 ((j) Parliament did not " otherwise enact," so that the rules of E. T. 1842, are 
 repealed, and those here annotated substituted. 
 
 ^'■+:|' 
 
 '■\^^ 
 
 •.^^'tT 
 
 
 
 
 -% 
 
 ■ i ■ : 
 
 \ •! : # 
 
 All 
 
708 
 
 REGUL^ CSNERALES AS TO PLEADING. 
 
 [R. L 
 
 to which they relate, had or taken previous to the said first day of 
 Easter term next, (h) and the following rules, orders, and rep 'lationa 
 shall be in force, that is to say : 
 
 1. (J) Except as hereinafter provided, several counts on the same 
 cause of action, (/<;) shall not be allowed, (I) and any count or counts 
 
 L\'i 
 
 {h) E. T, 1857. 
 
 (J) Taken from Eng. R. G. pi. No. 1 of T. 1. 1 853, the oriijin of which was En<r. 
 R. G. No. 6 of H, T. 4 Wm IV. : Jervis N. R. 116; with which our old U. Q. 13. 
 No. 32 of E. T. 5 Vic. Cam. R. 38 in part corresponded. 
 
 (h) Several counts, though in certain cases allowable, wh«n "on the same 
 cause of action shall not be allowed." It is not a correct test to ascertain that 
 nothing can be recovered under one set of counts which cannot be recovered 
 under another: see Gilbert v. Hales, 2 D. <fe L. 227; Bulmer v. BowfieM, 9 Q. 
 B. 986 ; nor can particulars of demand be taken into consideration as aftbrding 
 any test: see Cahoon v. Burjord, 13 M & W. 136; Gilbert y. Bales, 2 I). & 
 L. 227 ; Wtlliams et al v. Vines et al, 6 Q B. 355 ; Bulmer v. Bomfield. 9 Q. 
 B. 986. The true criterion would appear to be this : Are the counts different 
 on the face of them ? Can it be said by looking at them, that the same evidence 
 w'll apply indifferently to either count? Gilbert v. links, 2 D. tt L. 'I'll; 
 Ramsden v. Gray et al, 7 C. B. 961. It may, however, bo shown by affidavit 
 or otlierwise that the counts, though apparently for the same cause of action, 
 are not so in fact: Dewar et al v. Swubey et al, 1 G. ifc; D 397. Two counts 
 upon the same agreement, framed for the purpose of removing the diflicuhy as 
 to its legal effect, not allowed: Smith y. Thompson, 5 C B. 486. So t vo counts 
 upon the same contract, one count alleging the defendant to be jointly liable 
 witli arotker, and a second count cliarging him alone; not allowed : Cholmviidelej/ 
 V. Payne ct al, 4 Scott, 418. Two counts, the one charging defendant as prin- 
 cipal and the other as agent; not allowed: Roy v. Bristow, 5 Dowl. P. C 452, 
 Different modes of stating the consideration for the same promise r r grant, 
 not allowed : Jenkins v. Treloa^, 4 Dowl. P. C. 690. Separate counts on e.xpress 
 and implied contracts allowed only if they differ one from another: SicUl v. 
 Slurry, 3 Dowl. P. C. 133; Jenkins v. Treloar, 4 Dowl. P. C. 690; Curnc v. 
 Almond, 5 Bing. N. C. 224; Temperley v. Brown, 1 Dowl. N S. 310; Arden v. 
 Fallen, lb. 612; Thornton y. Whitehead, 4 Dowl. P. C. 747; Vavyhan v. Glam 
 et al, 8 Dowl. P. C. 396 ; Iloare v. Lee, 5 D. <fe L. 765 ; Grissell v. James, 4 C. 13. 
 768; Ramsaen v. Gray et al, 7 C B. 961. Where there are different contracts, 
 th lugh in respect of one and the same transaction, a count allowed upon each: 
 James v. Bourne et al, 4 Bing. N. C. 420; Williams et al v. Vines, 1 D. ct L. 71ii. 
 So the plaintiff may declare upon a bill of cxclinnge and also on the original con- 
 sideration for the bill: Pat. MacN. & M. Prac. 141. Counts in detinue and trover 
 for the same cause of actiflu not allowed: Mockfordy. Taylor, 19 C. B. N.S. 209. 
 Wliere a contract had been altered a count was allowed on the original contract 
 and another on the contract as altered : Uemming v. Trenery et al, 9 A. &, E. 926; 
 •Hernod v. Wilkin et al, 11 Q. B. 1. So several counts allowed on bills of excliaiige, 
 Btating the liability in different forms: Gilbert v. Hales, 2 D, <fe L. 227. i?o « 
 count for a breach of warranty on the sale of a horse, and a count for the price, 
 as money had and received : Cahoon v. Burford, 2 D. <i L. 234. So a common 
 count and a special count, for work done: Bulmer y. Bounjield, 9 Q B 686. So 
 a_8pecial count and a common count for money paid : Simpson v. Kuni. 1 Ex. 088. 
 So a count for double rent ond a count for use and occupation : Thornton v. 
 Whitehead, 4 Dowl. P. C. 747; Lawrence v. Stephens, 3 Dowl P. C. 777. i^o a. 
 count in detinue for a note with a count for the amount of it: Kirkpatrick v. 
 
fc^M 
 
 |o be jointly liable 
 
 R. 1.] 
 
 TRINITY TERM, 185^. 
 
 709 
 
 used in violation of this rule (m) may, on the application of the party (n) 
 objecting, within a reasonable time, or before an order made for time 
 to plead, (o) be struck out or amended by the Court or a Judge (/)) on 
 such terms as to costs or otherwise as such Court or Judge may think 
 fit. (q) 
 
 The Bank of England, 8 Dowl. P. C. 881 ; Gilbert v. ITales, 2 D. 4 L. 227. 
 Ditl'erent statements of the contract of a carrier allowed on different counts : 
 Jiimes et al v. Bourne et al, 6 Dowl. P. C. 603. So different stateraenta on 
 diffurent counts in regard to the defendant's duty as to a vessel hired to him 
 by the plaintiff: Blca'len v. Rupallo, 9 Dowl. P. C. 857. Trover for a boiler, 
 with a special count allowed : Weeton et al v. Woodcock et al, 7 Dowl, P. C. 384. 
 
 {I) " Shall not bo allowed " (in taxation of costs). The words in italics were 
 in our old rule Q. B. No. 32 of E. T. 5 Vic. : Cam. R. 38 ; the consequence of 
 which was that the only penalty for using several counts in violation of the rule 
 was the loss of costs : Johnson v. Hunter, 1 U. C. Q. B, 280. These words hav- 
 ing been omitted from the rule here annotated, the penalty is now in this Pro- 
 vince the same as in England, viz. the counts improperly pleaded may be struck 
 out. 
 
 (w) It is not usual for the court to construe these rules very strictly. Counts 
 in the same cause of action are allowed whenever necessary for determining the 
 real question in controversy between the parties on the merits : see Cahoon v. 
 Burford, 13 M. & W. 136; Oilbert v. Hales, 2 D. <fc L. 227; JDewar et al v. 
 Swabey et al, 11 A. <fe E. 913; Chapman v. King et al, 16 L. J. Ex. 15; see 
 R. G. pi. 2. There is still the penalty as to costs : see R. G. pi 3. 
 
 (n) The application should in the first instance be made to a judge in cham- 
 bers, and the order if obtained be drawn up on reading the declaration and affi- 
 davits filed: Roy v. Bristow, 5 Dowl. P. C. 452 ; Daniels v. Lewis, 1 Dowl. N.S. 
 844; The South Eastern Railway Co. v. Sprott, 8 Dowl. P. C. 493; The South 
 Eastern Railway Co. v. Barnes, 4 Jur. 1185, From the decision of the judge in 
 chambers an appeal may be made to the court in term : Jenkins v. Treloar, 
 4 Dowl. P. C. 690; Johnstone v. Knowles, 1 Dowl. N.S. 30; Grissell et al v. 
 James, 4 C. B. 768; Slack v. Clifton, 8 Q. B. 624; Chapman v. King et al. 
 If) L. J. Ex. 15. When an order has been made the application should be 
 to rescind it: The South Eastern Railway Co. v. Sprot, 8 Dowl. P. C. 493. 
 Although no application be made to ..trike out counts pleaded in violation of 
 this rule, plaintiff may ultimately have to pay the costs incident to such 
 counts : R. G. pi. 3. Generally if there be several counts on the same cause 
 of action, plaintiff will be entitled to a verdict on one count only : Ward v. 
 Bm, 1 C. «k M, 848; Holford v. Dunnelt, 7 M, «fe W, 348 ; Deere v, hey, 4 Q, 
 B. 379. 
 
 (o) The application should as a general rule be made before plea pleaded : see 
 Wilkma V. Perry, Temp, Hardw, 129. 
 
 [p) The application should, when possible, be made in the first instance to a 
 judge : Ward v, Graystock, 4 Dowl. P. C. 717 ; see also Morse v. Apperley, 6 M. A 
 \V. 145. The party dissatisfied with the order may appeal to the court: Dewar 
 ti al v. Swabey et al, 11 A, & E. 917; Griffith v, Selby, 9 Ex, 393. So where 
 the judge refuses to make an order striking out a count application may be 
 made to the court: G'isiell et al v. James, 4 C. B. 768; but see Slack t. Cltfton, 
 8 Q. B. 624, 
 
 ($) Court or Judge. Relative powers : see note w to section 48, C. L. P. Act. 
 
 '•'Si 
 
 
 it! 
 
 
 u 
 
 M I 
 
710 
 
 REaUL^ G1ENERALE8 AS TO PfiEADINa. [Rs. 2, 3. 
 
 
 .i;!i 
 
 V 
 
 fi. (r) Several pleas, replications or subsequent pleadings, or several 
 avowries or cognizances founded on the same ground of answer or 
 defence, (s) shall not be allowed, (f) provided that on application to 
 the Court or a Judge (u) to strike out any count, (f ) or on an objection 
 taken before the Judge (w) ou a summons to plead poveral matters to 
 the allowance of several pleas, replications or subsequent pleadings, 
 avowries or cognizances, on the ground of such counts or other plead- 
 ings being in violation of this rule, (x) the Court or Judge (y) may 
 allow such counts on the same cause of actioQ, or such pleas, replications 
 or subsequent pleadings, or such avowries or cognizances founded on 
 the same ground of answer or defence as may appear to such Court or 
 Judge to be proper for determining the real question in controversy 
 between the parties, on its merits, (z) subject to such terms as to costs 
 and otherwise as the Court or a Judge may think fit. (a) 
 
 3- (b) When no sucb rule or order has been made as to costs (c) by 
 the Court or Judge, and on the trial there is more than one count, (d) 
 
 (r) Taken from Eng. R, G. pi. No. 2 of H. T. 1853, the origin of which waa Eng. 
 R. G. No8. 5 and 6 of H. T. 4 Wm. IV. : Jervis N. R. 116, 120; with the former 
 of which our old R. Q. B. No. 33 of E. T. 6 Vic. : Cam. R. 40 ; la part cone* 
 ponded. 
 
 (s) See note e to section 110, C. L. P. Act. 
 
 (<} It has been held that a special replication may be allowed together with a 
 general traverse of the plea, though it do not raise a distinct defence, where the 
 special replication enables the parties to raise by demurrer the substantial ques- 
 tion to be decided in the cause : Williams v. Tfie African Steam Navigation Co, 
 1 H. dt N. 19. 
 
 (a) Court or ajud^e: see note w to section 48, C. L. P. Act. 
 
 («) Under the preceding rule. 
 
 (u>) The judge: see note e to section 110 C. L. P. Act. 
 
 (x) A pleading may also be struck out when calculated to embarrass, &c. : 
 see Bection 119, C. L. P. Act. 
 
 (y) See note w to section 48, C. L. P. Act. 
 
 (z) See note m on preceding page. 
 
 (a) When a rule is made absolute to strike out or amend a pleading as framed 
 to prejudice the fair trial of the action, the party obtaining it gets costs as costs 
 in the cause : Barnes v. Hayvtard, 1 H. <fc N. 242. If when cause ia shown the 
 rule be varied, the party does not get costs unless the rule expressly give them 
 to him : lb. 
 
 (b) Taken from Eng. R. G. pi. No. 3 of H. T. 1863, the origin of which was Eng. 
 R. G. No. 1 of H. T. 4 Wm. IV. : Jervis N. R. 121. 
 
 (e) t. «. Under the preceding rule. 
 
 (d) The general issue, if pleaded to several counts, raises a distinct issue on 
 each count: Cox y, Thomaton, 1 Dowl. P. C. 672; Knight t. Brown, lb. 730. 
 
embarra33, Ac : 
 
 R. 4.] 
 
 TRINITY TERM, 1850. 
 
 711 
 
 <plea, replication or subsequent pleading, avowry or cognizance on the 
 record, (c) founded on the same cause of action or ground of answer or 
 defence, (/) and the Judge or presiding oflScer before whom the cause 
 is tried shall at the trial certify to that efiFcct on the record, ((/) the 
 party so pleading shall be liable to the opposite party for all costs occa- 
 sioned by such count, plea or other pleading, in respect of which he 
 has failed to establish a distinct cause of action, or distinct ground of 
 answer or defence, (/t) including the costs of the evidence, as well as 
 those of the pleading, (i) 
 
 4. (7) The name of the county shall in all cases be stated in the 
 
 So if there be several closes mentioned by abuttals in one count in trespass, 
 the allegation is divisible, and the defendant is entitled to costs as to tliose 
 closes, of the breaking of which he is not guilty : Phythian v. White el al, 1 M. 
 <fe W. 216. So if there be one count for a libel with several inuendoes, the 
 defendant will be entitled to the costs incurred by disproving the inuendoes nega- 
 tived by the jury, though the plaintitf succeed upon some : Frudhomme v. Fraser, 
 2 A. <& E. 646. 
 
 (e) The costs of several pleas were, before the English rule of Wra. IV. re2;u- 
 lated by the Statute 4 Anne, cap. 1 6 : Cartwright v. Cook, 1 Dowl P. C 529 ; 
 Vallance v. Evans, 1 C. A M. 856; Hart v. Cutbush, 2 Dowl. P. C. 46fi; Bird v 
 Bigginson, 6 A. <fe E. 83: Spencer \. Hamerlon, 4 A. <fe E. 413; Middlelon v. 
 Mucklow, 10 Bing. 401. That rule was held to apply to actions commenced 
 before it came into operation : Allenby v. Proudlock et al, 4 A. & E. 326. And it 
 was also held to apply when the cause was referred to an arbitrator wlio was to 
 certify : Woof v. Hooper, 4 Bing. N. C. 449. It is further provided that " the 
 costs of any issue either of fact or of law shall follow the finding or judgment 
 on such issue, and be adjudged to the successful party, whatever may be the 
 result of the other issue or issues:" see section 110 C. L. P. Act. A perusal of 
 the notes to that section will throw additional light upon the meaning of the 
 rule now under consideration. 
 
 (/) See note e to section 110 C. L. P. Act. 
 
 {g) A party pleading in violation of this rule is only deprived of costs, and 
 that only when the judge certifies. A party pleading in violation of New Uules 
 1 or 12 is subject to have his pleadings struck out or amended upon an interlo- 
 cutory application. But under the Statute of Anne, taken in connection with 
 section 110 of C. L. P. Act, the costs upon an issue follow the finding upon tliot 
 issue, whatever be the result of the other issue oriasues, and tliis witliout the 
 judge's certificate. 
 
 (/t) The rule is inconvenient in this respect that each party has a riglit to tlio 
 opinion of the jury on each issue, though upon one or more of the issues the 
 result of the cause may be certain : Jiex v. Johnson, 5 A. «fe E. 488 ; but see 
 Duckworth v. Harrison, 4 M. dc W. 432. 
 
 (»■) In allowing the costs of witnesses tlie clerk exercises a discretion whetlier 
 the witnesses were called solely to prove that issue upon wliich tlie part}' suc- 
 ceeded: Eades v. Everatt et al, 3 Dowl. P. C. 687; Urowther v. Elwcll, 4 hi. <fe 
 W. 71. 
 
 (^■) Taken from Eng. R. G. pi. No. 4 of T. T. 1853, the origin of wliich was 
 Eng. R. G. No. 8 of T. T. 4 Wm. IV. Jervis N. R. 122, with which our old Rule 
 Q. B. No. 31 of E. T. 6 Vic. Cam. R. 36 corresponded. 
 
 K 'jr-jr 
 
 i 
 
 m 
 
 '. (^' .' 
 
 i'^^ 
 
 
 rA\ 
 
 i m 
 
712 
 
 '> I 
 
 REOULiE OENERALES AS TO PLEADING. [Rs 5, 6. 
 
 
 ft* 
 
 margiD of a declaration, and shall be taken to be the venue intended 
 by the plaintiff, (A;) and no venue shall be stated in the body of the 
 declaration, or in any subsequent pleading; (I) Provided that in cases 
 in which local description is now required, such local description shall 
 be given, (m) 
 
 S- (n) Id &I1 actions by and against the assignee of an insolvent 
 debtor, (o) or against executors or administrators, or persons authorised 
 by Act of Parliament to sue and be sued as nominal parties, (j?) the 
 character in which the plaintiff or defendant is stated on the record to 
 sue or be sued shall not in any case be considered as in issue unless 
 specially denied, (g) 
 
 fl5. (r) In all actions on simple contract, except as hereinafter ex- 
 -tpi^rl, the plea of non assumpsit, (s) or a plea traversing the contract 
 
 (k) Tlie meaning of this rule is that the county named in the margin shall 
 bo tlie pi.ce where the plaintiff intends to allege that the matters of fact took 
 pi 1 • It ■.mmaterial to prove that those facts took place in the place named 
 
 as the veiut 'bev leed not be proved, but if material they must be proved: 
 Boydell et at v. Harkne»», 4 D. (fe L. 181, per Maule, J. As to the mode of stating 
 the venue in the margin of a declaration : see Atkinson v. Hornby, 2 G. <fe K. 335; 
 Thompson v. Hornby, 9 Q. B. 978. It has been held that if no venue be stated 
 when necessary, the declaration is subject to demurrer: Jtemington v. Tayler, 
 1 Lntw. 235. 
 
 (/) See liichardson v. Loeklin, 6 B. «fe S. 'IVT. 
 
 (m) See note n to section *J C. L, P. Act. 
 
 (m) Taken from Eng, R. G. pi. No. 5 of T. T. 1853, the origin of which was 
 Eng. R. G. Ko. 21 of H. T. 4 Wm. IV. : Jervis N. R. 126. 
 
 (o) In trespass for taking goods the defendants in England justified as assig- 
 nees of a bankrupt; the plaintiff replisd that the goods belonged to him: the 
 court held that the defendants were not required by this replication to prove 
 the bankruptcy and their appointment : Jones v. Brown et at, 1 Bing. N. C. 484; 
 see also Hemamann v. Barber, 2 C. L. Rep. 825. 
 
 (/>) An executor or administrator may be called upon to give security for 
 costs like any other plaintiff: Chamberlain v. Chamberlain, 1 Dowl. P. 0. 366. 
 
 (q) To understand fully the effect of this rule, it is necessary to remember 
 that a party to a suit by taking issue on one or more traversable allegations in 
 a pleading, in effect admits all others not traversed. Thus if in a declaration or 
 other pleading either party be alleged to be an executor, administrator, or other 
 person suing in a representative capacity, and that allegation be not traversed, 
 it is for the purpose of the suit admitted : see Jones v. Brown et al, 1 Bing. N. 
 C. 484. 
 
 (r) Taken from Eng. R. G. pi. No. 6 of T. T. 1853, the origin of which was 
 Eng. R. G. pi. No. 1 of H. T. 4 Wm. IV. Jervis N. R. 126, with which our old 
 Rule Q. B. pi. No, 1 of E, T. 1 Vic. Cam. R. 52 corresponded. 
 
 («) The plea of non assumpsit denies the express contract or the facts from 
 which an express contract is implied. Defendant may under the general issue 
 
 t'-?l ' 
 
LDING, [RS 5, 6. 
 
 J the venue intended 
 d ia the body of the 
 'rovided that in cases 
 local description shall 
 
 Bignee of an insolvent 
 1 or persons authorised 
 minal parties, (p) the 
 stated on the record to 
 red as in issue unless 
 
 cept as hereinafter ex- 
 traversing the contract 
 
 R. 6.] 
 
 lamed in the margin shall 
 at the matters of fact took 
 ok place in the place named 
 jrial they must be proved: 
 As to the mode of stating 
 n V. Hornby, 2 C. & K. 335; 
 I that if no venue be stated 
 irrer: Remington v. Tayler, 
 
 the origin of which was 
 125. 
 ^ England justified as assig- 
 .•oods belonged to him: the 
 bv this replication to prove 
 omcta?, lBing.N.C.484;l 
 
 I upon to give security fot 
 berlain, 1 Dowl. P. C. 366. 
 Lt is necessary to remember I 
 re traversable allegations m 
 Thus if in a declaration or I 
 utor, administrator, or other 
 allegation be not traversed, 
 18 V. Brown et d, 1 Bing. N.[ 
 
 63, the origin of which wmI 
 
 R. 126, with which our oW| 
 
 esponded. 
 
 I contract or the facts froml 
 
 lay under the general issue 
 
 TRINITY TERM, 1856. 
 
 713 
 
 or agreement alleged in the declaration, shall operate only as a denial 
 in fact of the express contract, promise or agreement alleged, or of the 
 matter.? of fact from which the contract, promise or agreement may be 
 implied by law. 
 
 Exempli gratia : — In an action on a warranty, puch pleas will 
 operate as a denial of the fact of the sale and warranty having 
 
 show that the contract was made not with the plaintiff but with another : 
 Sutherland v. Pratt et al, 11 M. &, W. 296 ; a misjoinder of plaintiffs: Chanter v. 
 iffsc d al, 4 M. & W. 295 ; or defendants : Cooper v. WhitehouM et al, 6 C. & P. 
 545 ; Jackson v. Nunn et al, 4 Q. B. 209 ; though not the wowjoinder of a defen- 
 dant: Rice V. Shute et al, 5 Burr. 2611 ; Cocks et al v. Brevier tt nx. 11 M. tfe W. 
 51. So he may show tliat the agreement was not as alleged : De Pinna v. Polhill, 
 8 C. & P. 78; Bennion v. Davison e< a^ 3 M. <& W. 179; Brind v. Dale, 2 M. & 
 W. 775 ; Sharland v. Lcif child, 4 C. B. 529 ; Williams et al v. Vi7i(s et al, 6 Q. B. 
 S55 ; Mounsey et al v. Perrott, 2 Ex. 522 ; or that the consideration was different 
 from that alleged: Raikes et al v. Ihdd, 1 P. & D. 138; Lyall et al v. Iliqgins, 
 4 Q. B. 528 ; Beech v. Wliite, 12 A. & E. 670 ; Snthtrland v. Pratt et al, 11 'M. & 
 W. 296; Weedon v. Woodbridge, 13 Q. B. 462; but an after stipulation by which 
 the parties agreed to vary the agreement, must be specially pleaded : Heath et al 
 V. Durant, 12 M. <fe VV". 438. So defendant may show under this plea that con- 
 tract was under seal : Weston v. Foster, 2 Bing. N. C. 693 ; see further Edwardi 
 V. Bates et al, 7 M. «fe G. 590. But a defence of merger must be specially 
 pleaded : Filmer v. Burnby, 2 M. <b G. 529 ; or that the agreement, though 
 bigned, was not to take effect till the happening of something which has not 
 happened; Pym v. Campbell et al, 6 El. <fe B. 37u ; The Liverpool Borough Bank 
 V. Eccles et al, 4 H. <fe N. 139 ; Furness v. Meek, 27 L. J. Ex. 34 ; Boyd v. Hind, 
 
 1 H. ik N. 938. So defendant may show that the plaintiff, an attorney, agreed 
 to do the work for costs out of pocket: Jones v. Nanney, 1 M. & W. 333 ; or that 
 goods were sold subject to an express condition not complied with : Gardner v. 
 Alexander, 3 Dowl. P. C. 146 ; Brind v. Dale, 2 M. & W. 775 ; Hannuic v. Ooldner, 
 11 M. & W. 849 ; see also Sieveking et al v. Dulton, 3 C. B. 331 ; or that a machine 
 sold was to be paid for only if it worked well : Orounsell v. Lamb, 1 M. it W. 352 ; 
 or that the goods delivered were not such as were ordered : Cousins v. Paddon, 
 
 2 C. M. <fe it. 547 ; or that the work was to be paid for only if it were suc- 
 cessful: Hayselden v. Staff, 5 A. <fe E. 153 ; or that the contract declared on is in 
 any respect different from that which in truth existed between the parties : 
 Morgan et al v. Pebrer, 3 Bing. N. C. 457 ; Mounsey et al v. Perrott, 2 Ex. 522 ; 
 or liny other qualification or condition which defeats the contract as sued upon : 
 
 \ Brind V. Dale, 2 M. & W. 776; Nashr. Breeze, 11 M. & W. 352; Sharland v. 
 
 Leifchild, 4 C. B. 629 ; Heath et al v. Durant, 12 M. A W. 438 ; Smith v. Dixon, 
 1 7 A. & E. 1 ; Whittaker et al v. Mason, 2 Bing. N. C. 859 ; Metzner v. Boltan, 
 1 9 Ex. 518 ; Kemble v. Mills, 1 M. & G. 757 ; Weedon v. Woodbridge, 13 Q. B. 462; 
 
 Wallis V. Littell, 11 C. B. N.S. 369; Yates v. Nash, 8 C. B. N.S. 581 ; or that 
 I there was no sufficient memorandum in writing to satisfy the Statute of Frauds : 
 iButtemcre v. Hayes, 5 M. & \V. 456 ; Leaf et al v. Tulon, 10 M. & W. 393 ; Reade 
 1 V. Lamb, 6 Ex. 130 ; see also Johnson et al v. Dodgson, 2 M. <fe W. 653 ; Elliott v. 
 
 Thomas et al, 3 M. <fe W. 170 ; Eastwood v. Kenyon, 11 A. & E. 438 ; Fricker v. 
 IThomlinson, 1 M. dc G. 772; or Lord Tenterden's Act: Turnley v. Macgregor, 
 |6M. dc G. 46. 
 
 It has been holden that a partnership may be given in evidence under the 
 I general issue: Worrall v. Grayson, 1 M. & W. 166 ; Payne v. Hales, 5 M. & W. 
 1598 ; or the fact that defendants were only competent to make the promise under 
 Iseal : Frend v. Dennett, 4 C. B. N.S. 676. 
 
 %i 
 
 ii 
 
 
 'r^^\ 
 
 im 
 
 n 
 
 S">% 
 
 \i kX 
 
 
714 
 
 REOULi^ OENERALES AS TO PLEADINO. 
 
 [R. 6. 
 
 been (w) given, but not of the breach ; (y) and in an action on a 
 policy of insurance, of the subscription of the alleged policy by the 
 defendant, but not of the interest, to the commencement of the risk, 
 of the loss, or of the alleged compliance with warranties. (?(?) 
 
 In actions against carriers and others bailees, for not delivering or 
 not keeping goods safe, or not returning them on request, (x) and in 
 
 (m) Tlie words "upon tho alleged consideration" used in the old rnlos are 
 here omitted. Tiio object of the omiasion is not manifest. A distinction lias 
 hitherto been drawn as to the cflfect of non assumpsit upon the proof of a consi- 
 deration executed and one executory. In all cases it is necessary to prove the 
 consideration as stated : yVallis et al v. Broadbent et al, 2 U. «fe W. 40. Wliere it is 
 executed, the promise results from the performance and the plea of won asmmpmt 
 clearly puts in issue all tho circumstances necessary to raise that promise, but 
 only those material for that purpose : Wriffht v. Newton, 8 Scott, 595 ; Bmnion v. 
 Davison ct al, 3 M. & W, 179. Where the consideration is executory, however, 
 the point is not so clear, though the principle is when considered quite as intel- 
 ligible : .Jervis N.R. 127 n. An executory consideration imports that something 
 is to be done by the plaintiff. If tho defendant admit, that, relying upon that 
 which was to be done by the plaintiff he made the promise and did not fulfil it, 
 merely because the plaintiff did not or could not keep his part of tho engajre- 
 nient, he in fact admits his own promise, and also the consideration wliich 
 induced him to make it, or in other words confesses and should avoid it by 
 pleading specially the ground of defence. The general issue merely denies that 
 the promise was made for the consideration stated : lb. For instance, where 
 the declaration stated that the plaintiff was the composer of an opera and had a 
 right to sell it as such, and that in consideration of tho premises, and that the 
 plaintiff would sell it to the defendant, he promised, &c,, it was held that under 
 the plea of 7ioji assumpsit the defendant could not dispute that the plaintiff was 
 the author of and had a right to sell, and did in fact sell the music to the defen- 
 dant : JDePinna v. Polhill, 8 C. <& P. 78. So where the declaration stated that P. 
 had agreed to grant a lease to the plaintiflf, that the plaintiff had agreed to 
 grant it to S. upon the payment of a sum of money, that S. had sold his interest 
 to the defendant, that S. had not paid the plaintiff, and that in consideration of 
 the plaintiff granting lease to the defendant, the defendant promised, &c. It 
 was held that the defendant could not under the general issue show that the 
 plaintiflf was bound to grant the lease to the defendant without payment of the 
 money : Pa&senger v. Brooks, 1 Scott, 560 ; see also Gibson v. Harris, 8 C. A 
 P. 378. 
 
 (r) The contract only and not the breach'is traversed by the general issue : 
 Smith V. Parsons, 8 C. 4 P. 199 ; Warre et al v. Calvert, 7 A. <fe E. 143 ; King et 
 al V. Walker, 2 H. & C. 384 ; s. c. in Error, 3 H. & C. 209 ; see also Smart v. 
 ffyde, 8 M. & W. 723. 
 
 (m) Non assumpsit puts in issue not merely the subscription to tho policy con- 
 taining the particular terms alleged, but to a policy earned to be made by the 
 plaintiff, and containing those terms: Sutherland v. Pratt et al, 11 M. «& W. 314, 
 per Parke, B. 
 
 (x) In an action of assumpsit brought to recover the value of goods delivered 
 to defendant as a common carrier to oe taken care of and safely carried by him 
 for the plaintiff, but which were lost through negligence, a plea that when the 
 defendant received the goods an express condition and agreement was made 
 between him and plaintiff, that the plaintiff should accompany the cart and 
 
R. 6] 
 
 TRINITY TERM, 185G. 
 
 715 
 
 actions acjainst agents for not accounting, such pleas will operate as a 
 denial of any express or implied contract to the effect alleged in the 
 declaration, but not of the breach, (y) 
 
 To causes of action to which the plea of " never was indebted" is appli- 
 cable, as provided in Schedule B (32) of the Common Law Procedure 
 Act, 1856, and to those of a like nature, the plea of non ossumpsi't 
 shall be inadmissible; (z) and the plea of " never was indebted" will 
 operate as a denial of those matters of fact from which the liability of 
 the defendant arises, (a) exempli gratid, in actions for goods bargained 
 and sold, (h) or sold and delivered, (c) the plea will operate as a denial 
 
 ! 11 
 
 
 % M 
 
 watch and protect the goods from being lost or stolen, but that he neglected and 
 refused so to do, by reason whereof and not by reason of any negligence of the 
 defenuiint the goods were lost. Held bad as amounting to the general issue : 
 Brind v. Dale, 2 M. & W, 775, 
 
 {y) See Benett v. Tlie Peninsular and Oriental Steamboat Co. 6 D. <b L. 387. 
 
 (^) In all actions upon bills and notes, the plea of " non assumpsit"' is inad- 
 missible: B. 6. pi. 7. 
 
 (a) It seems that the plea of " neyer indebted" to an action by a landlord 
 against a tenant for not giving him notice that he had been served with a 
 declaration in ejectment, is a material issue : Lount v. Smith, 5 U. C. Q. B. 302. 
 Never indebted has been held a sufficient plea to an action for calls by a com- 
 pany incorporated by an act of a colonial legislature : The Wdland Railway Co. 
 V. Blake, 6 H. & N. 410. 
 
 {h) Where goods are sold on condition that if they are not paid for at a speci- 
 fied time, the owner may re-sell them and that the vendee ehull be answerable 
 for any loss on such re-sale, such sale is conditional and not absolute : Lamond 
 et al V. Davall, 9 Q. B. 1030. Therefore if the vendee do not pay at the time 
 and the vendor re-aell, he cannot maintain assumpsit for goods bargained and 
 sold, or sold and delivered : lb. It has been held that the defence miglit be 
 raised under non assumpsit : lb. But now that nunguam indebitatus is expressly 
 made applicable to counts for goods bargained and sold, <fec. (C. L. P. Act, Sen. 
 B. No. 32), and being such, it is ordered by the rule under consideration that 
 "non assumpsit" shall be inadmissible, the proper plea would appear to be 
 "nuvquam indebitatus:" lb. Where the sale was on credit defendant under 
 never indebted may show that the credit has not expired : Broomfield v. Smith, 
 1 M. «fe W. 542 ; or where delivered under a contract of barter : Harrison v. 
 Lxike, 14 M. A W. 139 ; Sheriff v. McCoy, 27 U. C Q. B. 697 ; or where to be 
 paid for out of a particular fund only: (Jarey v. Pyke, 10 A. <fe E. 512 ; or that 
 the goods were sold with a warranty and did not agree with it and were of no 
 value more than the money paid : Dicken v. Neale, 1 M. «fe W. 656 ; or that the 
 goods were worthless : Comins v. Paddon, 2 C. M. <& II. 647 ; Dawson v. Collia 
 rt al, 10 C, B. 523. 
 
 (c) In an action for goods sold and delivered where there has been a sale, in 
 point of fact the defendant cannot under the general issue show that the plaintiff 
 nad no title to the goods at the time of sale: Walker v. Mellor, 11 Q. B. 478 ; 
 nor can he under such an issue insist that the contract of sale was illegal and 
 void: Fenwick v. Laycock, 1 Q. B. 414. 
 
 m 
 
 iji 
 
 1 ■■ 
 
ri6 
 
 REQUL^ QENERALRS AS TO PLEADINO. 
 
 tR. 6. 
 
 ►, 'It. 
 
 H\ 
 
 of the bargain and sale, or sale and delivery in point of fact; (d) in 
 the like action for money had and received, it will operate as a denial 
 both of the receipt of money and the cxiHteneo of those facts which 
 make such receipt by the defendant a receipt to the use of the 
 plaintiff, (e) 
 
 ((/) Where goods are sold for ready money and payment 5a made nccordincrly^ 
 no debt orises, ond such payment is tlierefore provaule under the goncrn! issue; 
 JJuase,v V. Burnett, I Dowl. N. S. 646 ; Dicken v. Neale, 1 M. A W. 656 ; Wood et 
 ux. V. Bellcher, 4 W. 11. 666 ; but see LUtlechild v. Banks, 7 Q. B. 7:59 ; Timmini 
 et vx. V. Oibbim, 18 Q.B. 722. So wlicro a transfer by deed is tlio consideration 
 and tlio deed itself aclinowledges the payment of tlio consideration niuriuy; 
 Baker v. Heard, 5 E.x. 959. So where there was an antecedent debt wiiich was 
 accepted ns payment: Smith v. Winter, 12 C. B. 487; Littlechild v. Bankn, 7 Q. 
 B. 7a9. Quwre, if a co-operative association only anthorized to buy for cisli can 
 avoid payment under the general issue when sued for goods sold : see Fiizi/cmld 
 et al V. i'he London Co-operative Atsoctation (Limited), 27 U. C. Q. B. 605. iJe- 
 fendant may under this plea sliow that he was a partner with plaintiff: Pin^ne v. 
 Hales, 5 M. it W. 698; Brawny. Tapscott, 6 M. &. \V. 119; Worrall v. Grayson, 
 1 M. & W. 166. 
 
 (e) In an action for money had and received, defendant may under nevrr in- 
 debted show that the money never was received or held by him to the use of 
 the plaintiff: Mileham v. Eicke, 8 M. <fc \V. 407; Owen v. Challis, 6 C. B. 115; 
 Couvland v. Challis, 2 Ex. 682 ; or may show eitlier that he received no money : 
 Simms V. Beniaon, 28 U. C. Q. B. S23 ; or that the defendant has a lien upon fhc 
 money received : Williams et al v. Vines et al, 6 Q. B. 335 ; Brownrigg et al v. Rae, 
 6. Ex. 489. 
 
 In an action for money paid, defendant may show under never indebted either 
 that no money was paid or that the payment of it did not in law raise a request ; 
 Power et al v. Butcher, 10 B. «t C. 329 ; Stokes et al y. Lewis et al, 1 T. R. 20 ; 
 Exall V. Partridge et al, 8 T. R. 308 ; or that it was not to be repaid till a future 
 time: Maude v. Meesham, 6 Dowl. P. C. 670; or paid in respect of transa tions, 
 which gives the plaintiff no right to sue for it in a court of law : Morgan el al 
 V. Pebrer, 3 Bing. N.C. 457; Worrall v. Grayson, 1 M. <fe W. 166; Brown v. Tap- 
 ecott, 6 M. & VV. 119. 
 
 In an action for money lent, defendant may show under neVer indebted either 
 that no money was lent, or if lent, that the loan was secured by deed : Mathew 
 V. Blackmore, 1 H. & N. 762; Browne v. Price, 4 C. B. N.S. 698; contra wliere 
 the deed contains no covenant to pay : Yates v. Aston, 4 Q. B. 182. 
 
 In an action for work done, defendant may show under never indebted either 
 that no work was done or was done so unsliilfully as to be valueless: Hill v. 
 Allen, 2 M. & W. 283 ; Uayselden v. Staff, 6 A. <fe E, 153 ; Braeey v. Carter, 
 12 A. «fc E. 373; Symes v. Nipper, lb. 377 n; Long v. Orsi et al, 18 C. B. 610; 
 Lewis V. Samuel, 8 Q. B. 685; Cox v. Leech, 1 C. B. N.S. 617; that it was done 
 under an agreement that there should be no pay for it: Jones v. Nanney, 1 M, 
 (fe W. 333 ; Jones v. Reade, 5 Dowl. P. C. 216; that it was to be paid for other- 
 wise than in money : Collingbourne v, Mantell, 6 M. <fe W. 5i89 ; Bracegirdle v. 
 Hicks, 9 Ex. 361 ; that it was only to be paid on certain conditions with which the 
 plaintiff has not C9mplied : Morgan v. Birnie, 9 Bing. 672 ; Milner v. Field, 5 Ex. 
 829 ; Orafton et al v. The Eastern Counties Railway Co. 8 Ex. 699 ; Batterbury 
 V. Vyse, 2 H. <fe C. 42; Russell v. Viscount Sa da Bandeira, 13 C. B. N.S. 149; 
 or that defendant himself did a portion of the work : Turner v. Diaper, 2 M. <& G. 
 241 ; Newton et al v. Forster, 12 M, <fc W. 772. 
 
It. 7.] 
 
 TRINITY TERM, 1856. 
 
 717 
 
 lado ncconliiii^ly, 
 .hognnernl issue; 
 W. 656 ; llWi el 
 B. 739 ; Timmim 
 the consiiU'rution 
 deration inDiioy; 
 t debt which was 
 \ld V. lidiik^, 7 Q. 
 I buy for ciish can 
 Id: see Filzijerdd 
 1 Q. B. 605. he- 
 [)laiutitr: I'nyne v. 
 orrall v. Grayson, 
 
 rer indebted eitlier 
 
 by deed: Mnthew 
 
 698 ; contra where 
 
 182. 
 
 rer indebted either 
 valueless: HM v. 
 Draeey v. Carttr, 
 ial, ISC. B. 610; 
 ; that it was done 
 \ea V. Nanney, 1 M. 
 1 be paid for other- 
 f.89; Braeegirdlev. 
 ions with which the 
 in«r V. i^t«W. 5 Ex. 
 X. 699 ; Batterbury 
 13 C. B. N.S. 149; 
 Diaper, 2 M. <fe G- 
 
 7, (/) In all actions upon bills of exchunsc and promissory iu)tc8, 
 the picas of »ion o8.<(?«m/).s/< and "never indobted" Bbnil bo inndinis- 
 siblc. (//) In such actions, therefore, a plea in denial must traverse 
 sonio matter of fact, exempli f/ratid — the drawing or niakiiifr, or 
 intlur.'^ing or accepting, or presenting, or notice of di.>!bonour of the bill 
 or note, (/t) 
 
 In nn action on an account stated, dufundnnt may sliow uniler never indebted 
 tliat there was no account stated — that the statement was not correct: Thinnax 
 V. llnwkcs et al, 8 M, A \V. 140; Dniln v. lAoyd et al, 12 (I B. fi:!! ; timt it wnft 
 stated in respect of n debt for which defendant was in no way liable: WfH.t v. 
 Girliiif), 8 Taunt. 737 ; Pierce v. Evans, ti C. M. & R. '294 ; or for debt for which 
 there was no consideration: Clarke et ux. v. Webb et al. 1 C M. <t 11. 20 ; Frmch 
 V. I'mic/i, 2 M. & G. 644; or that the consideration had failed: Jacobs v. Fisher, 
 1 C. B. 178; Wilson v. Wilsvn, 14 C. B. 616. 
 
 (/■) Taken from Enjv. R. G. pi. No. 7 of T. T. 1853, the origin of which was 
 En),^ R. G. pi. No. 1 of li. T. 4 Wiu. IV. Jervis N. R. 128, with which our Rule 
 Q. J5. pi. No. 1 of E. T. 5 Vic. Cam. R. 54, corresponded. 
 
 ((?) This rule does not npply where the bill or note is but Ihe inducement to 
 the promise; as where upon a note jjiven to a testator in his lifetime the pro- 
 mise is lai<l to the executor after his decease: Tinimis et al v. I'lalt, 2 M. & \V. 
 72<i; see also Donaldson v. Thompson, fi M. AW. 310; Rolleston v. Diion, 14 L.J. 
 Kx. 3o4. Nor does it apply if the instrument bo not in fact a l)ill or note, 
 thoui^h the words "note of hand" be used in the body of it: Worlfi/ v. IJar- 
 risnn et al. 3 A. & E. 669. On the other hand, though the declaration profess to 
 proceed on some other jjround, if the cause of action bo in tact a bill or note, tho 
 rule will apply, and the pleadings should be framed accordingly: J/ai/ et al v. 
 Fi-ilier, 2 M. & W. 722. If tho defendant ])lBad the general issue to an action 
 on a bill or note, the plaintiff may sign judgment: Kiilij v. Vtllcbois 3 Jur. 
 1172; Sewell v. Dale, 8 Dowl. P. 0.309; Harvey v. Hamilton, 4 Ex. 43; but if 
 he do not, and the cause go to trial, it may be tried : liny el al v. Fisher. 2 M. 
 dc W. 722; and defendaet may avail himself of any defence applicr.ble to the 
 e.vtended issue: Finteyson v. Mackenzie, 3 Uing. N. C. S24 ; but see Neale v. 
 Proclor. 2 C. & K. 456. Where in assumpsit on a bill of exchange against tho 
 acceptor the defendant pleaded non assumpsit, the plaintiff was held entitled to 
 a verdict without calling any witnesses: lb. Where to an action on a bill of 
 exchange, together with the money accounts, the defendant pleads non as.tumpsil 
 to the whole declaration, the plaintiff may sign judgment as to the count on the 
 bill and enter a nolle prosequi ns to the other counts: Fraser v Newton, 8 Dowl. 
 V. C. 773; Eddison v. Ptyram, 16 M. & W. 137. Where the first count of a 
 declaration was on a bill of exchange, and the second on an account stated, ;'nJ 
 two pleas were pleaded, and there had been judgment on demurrer for the ))1 lin 
 tilt" on the plea to the count on the bill and issue joined on the other, which waa 
 not a plea of payment: Held that upon a venire tarn ad triandum quam ad inqui- 
 rendum et unica taxafio it was not necessary to produce the bill; Lane v. Mulling, 
 1 Dowl. N.S. 562. This rule does not prohibit the plea of the general issue to a 
 count on a bill where the plea is given by statute: Weeks v. Argent, 16 M. «fe 
 W 817. Where the legal effect of tho instrument is disputed it may be conve- 
 nient to set it out verbatim in the plea, leaving the plaintiff to demurrer: seo 
 Tales V. Nash, 8 0. B. N.S. 681. 
 
 (/() The effect of the rule is to compel the defendant to traverse or admit each 
 Kiiiterial allegation from which his liability arises : Sibley v. wisher, 7 A. A E. 444. 
 In on action by an indorsee against an indorser of a bill, the defendant cannot 
 
 
 ■if 'S!! 
 
 ■1 j '» 11 
 
 I ■■'» ll 
 
 %:■■ "-4 
 
 l'\:.yS8 
 
718 
 
 REQULiE 0ENERALG8 AS TU PLEADING. 
 
 [U. 8. 
 
 8. (0 In every epecica of actions on contract, all matters in confeii. 
 fiion and avoidance, including not only those by way of diacharfjo, but 
 those which show the transaction to bo either void or voidable in point 
 of law, (,/) on the ground of fraud or otherwise, shall bo sp- -'lly 
 pleaded, exempli gratid, — infancy, 30verture, release, paymori 
 formance, illegality of consideration either by statute or common law, (») 
 drawing, indorsing, accepting bills, &c., or notes, by way of nocommo. 
 
 deny tlie making because tlio indorsement admits it : Alien v. Walker, 2 M. A 
 W. 317, So tlie acceptor of a bill payable to tl»e order of tlie drawer cannot 
 deny tiio authority of tiie drawer to draw or indorse such bill : I/ullifax el nl v. 
 Lyle, 3 Ex. 446 ; see also PliiUlpn et al v. im Thnrn, L. R. 1 C. l". 4(13. ]Jiit if 
 the defendant charajed as maker deny it, he may succeed if he show that he was 
 indorser only: Oieuinell v. Ilerb'.rt, 5 A. & E, 436. A ph-a denyinj; the indorsn- 
 ment puts in issue not only the fact of the siynaturo but also a delivery with 
 intent to transfer : Mnrstoti v. Allen, I Dowl. N. 8. 442 ; see also Bell v. Zon/ lih 
 gestre, 12 Q.B. 317 ; Unrrop v. Fisher, 10 C. B. N.S. 196. And as to the etfeit of 
 a plea denying plainfiif to be the holder: see h'nnp v. Walt, 15 M. & W. tj72. 
 Any i>leii which compels the plaintiff to produce the bill or note will enable the 
 defendant to take advantage of any defect ai)parent on the face of the inslru- 
 niei\t: Cock v. Coxwdl, 2 0. M. <fe R. 291 ; C'llverl v. Baker, 4 M. AW 417; 
 DawHon v. MacJonald, 2 M. <t W. 26; MeDowall v. Li/ster, Ih. 52; Jv v. 
 
 Crevrh, 5 Dowl. P. C. 293 ; Field et nl v. Wooih, 7 A. & E. 114 ; but s on 
 
 V. Bradtvi/, 1 D. «fe L. 38(». Except want of stamps, which in this c<>ur t 
 
 bo specially |)leaded : Baxter v. Baynes, 15 U. C. C. P. 237 ; see also Siejui'ni v. 
 Bern/, lb. 548 ; Henderson v. Gemcr et al, 25 U. C. Q. 13. 184; Ritchie v. I'mU, 
 16 U. C. C.P, 426 ; Lowe v. Hall, 20 U. C. C. P. 244. 
 
 (i) Taken from Eng. R. G. pi. No. 8 of T. T. 1853, the origin of which wna 
 Eng. R. G. pi. No. 1 of II. T. 4 Wra. IV. Jerv. N. R. 129, with which our old 
 Rule il B. pi. No. 1 of E. T. 6 Vic. Cam. R. 65 corresponded. 
 
 (_;■) The meaning of this part of the rule is to require matter to be sppcinlly 
 pleaded which would have been the subject of proof on the pai ^ of the defen- 
 dant, as usury, fraud, <fee., and not to exempt the plaintiff from proving anylliirig 
 which he would formerly have been required to prove : BuUemere v. Iliifts, 
 5 M. & W. 456. 
 
 (n) Illegality must be specially pleaded : Potts v. Sparrow, 1 Blng. N. C. 594 ; 
 Martin v. Smith, 4 Bing. N. C. 436 ; though it appear from the plaintiff's owu 
 case: Fenwick v. Laycock, 1 Q. B. 414 ; Daintree v. Hutchinson, 10 M. tfe W, So; 
 Bennett v. Bull, 1 Ex. 593 ; Allport v. Nutt, 1 C. B. 974 ; for instance, that tlie 
 attorney was guilty of maintenance in the suits in respect of which he Mies: 
 Potts V. Sparrow, 1 Bing. N. C. 694; in an action for demurrage that the jdaintiff 
 defrauded the customs : Alcock et al v. Taylor, 6 N. <fe M. 296 ; in an action for 
 money had and received that it was the produce of an illegal wager ; Martin v. 
 Smith, 4 Bing. N. 0. 446. The particular facts must be stated from which the ille- 
 gality arises : Hansford v. Copeland, 6 A. <fe E. 482 ; Grizewood v. Blanc, 1 1 C. B. 
 838. But where the facts sufficiently appear in the pleadings of the adversary, 
 the objection may be raised by demurrer: Ferazv. Nicholls, 2 C. B. 501. So par- 
 tial failure of consideration must be pleaded: Heady. Baldrey, 6 A. tfe E. 459. 
 If a simple con'-oct debt be merged in a specialty subsequently given it inujt 
 be specially pi .aded : Weston v. Foster, 2 Bing. N. C. 693. So if a subsequent 
 account be stated upon which the defendant relies : J'Mgett v. Penny, 1 C. M. •& 
 R. 108. 
 
■\i 
 
 W.ilker, '2 M. A 
 
 > ilriiwfi" cftiiiiot 
 liiH'fax el id V. 
 
 . I'. \iV,\. But if 
 liow tbfit lie was 
 yiiii; the iiulorse- 
 
 > u ilulivery willi 
 » Bell V. Lii-tl In- 
 19 to the etfuL-t of 
 15 M. & W. 6?2. 
 e will eiinlile the 
 iCe of the iiistru- 
 4 M. & W 417; 
 7;. 5'2 ; Ji V. 
 I; but s "'« 
 this com t 
 e also 6'Y/'rt' "•■< v. 
 [ llUchie V. i'ctt"', 
 
 K 9] 
 
 TRINITY TERM, 1856. 
 
 719 
 
 Jaticn, (o) set off, inutuiil credit, unseaworthiness, misrepresentation, 
 concculincnt, deviation, and various other defences Uiust bo pleaded. 
 
 0. (</) In actions on policies of insurance the interest of the assured 
 
 (o) If the defences bo tlmt the bill or note was drawn, etulorHod <>r ac'(t'|>tcd by 
 way of ftceoiimiodatioii, or that it was obtained by framl or under any eircuin- 
 gtimt'cH which disentitle the pluintiff t.> sui^ upon it, this defence must be specially 
 ]iUaded. Tiie plea of want of consideration must be proved by the defendant: 
 Lore}/ V. Forrester, '2 C. M. A K. 61» ; ^'oet v. JJ'>itd, 4 I>owl. 1'. C. 41.'»; unless 
 indeed tlie plaintiff state the consideration in his replication in answer to tho 
 pltii and nuike it part of tho issue: J,nw v. liurrowt, 2 A. & E. 48;i This ploa 
 111 fonu must show the real j^rounds of defence, and state tho circumstances under 
 wliich tlie bill or note was j^iven, for it is not siitH(!ient to state p'ni'raily that 
 the (Kfciulant received no consideration for the bill or note: JStotii/hlon v. I'J'irl 
 of Ki'iiiorn/, 2 C. M. & 11, 72; Graltam y. I'ilman, 8 A. & K. 621; Triwhr y. 
 SiH/'dIr!/. lb. r>22; Low y. Chi/nei/, 1 Hin;;. N. C. 2(J7 ; French v. Archer, ;i Dowl, 
 P.C liio; liri/n»l<la v. Ivemei,; lb. 45:i; Kearim y. Hurell, 6 C. IJ. nDti. If. how- 
 ever, the plaintiff take issue on a plea that " there was not consideration for tho 
 bill," llie defendant will bo at liberty to give in evidence all matters of defence 
 to wliieh such plea is applicable: Eauion v. Fratchett, 1 C. M. «& 11. 7i)8 ; Mills y. 
 Oil'/i/. 2 C M. ife 11. loa. So it is not sufticient to cast o susimion on the plaintilFa 
 tith — tlie circumstances which constitute the defence must bo specially pleaded: 
 Sifin V. Vylenius el al, I C. M. i& R. 6(15 ; JJramak etaly. Roberts et til, 1 Him;. N.C. 
 40'.'. If the plea alleges tho circumstances under which tho bill was given, and 
 conclude that there was no consideration, a traverse of iho first avennent will 
 be siitficient: Atkinson etaly. Dauies, 11 M. dt W. 2:!rt. It is a general rule that a 
 dffeiidant cannot, in defence to an octlon on a bill nr note, set up a contract dif- 
 ferent from that which the bill or n ite imports: Besant v. Cross, 10 C. B. 895. 
 He may, however, impeach tho consideration or set up a collateral agreement 
 furnishing an answer to the demand for payment: Foster v. Jolly, 1 C. M. ct R. 
 70;>. For instance, he may show that the bill, «tc. was to be renewed : Thompson 
 V, Chuhli'if, 1 M. ife W. 212 ; either generally or upon a condition broken : Biius y. 
 Willie, 1 G. M. ik U.686. It was at otie time sulHcient to cast a susi)i('i(m upon 
 a hill in order to require the plaintiff to prove consideration. The rule is now 
 JillVrent. Tho onus lies on the defendant to prove want or illegality of consid- 
 eration, and in each case to trace the vice of the bill to the plaintiff, although 
 in one case: Mills v. Barber, 1 M. & W. 425; it was doubted whether this was 
 necessary where the bill had been obtained by fraud : Fercival et al v. Framp- 
 ton, 2 U. iM. & R. 180; Lewis v. Parker, 6 N. & M. 294; Whiiaker v. Edmunds, 
 1 A. <t K. 6:^8 ; Edmunds v. Groves, 2 M. & W. 642 ; see also Smith v. Martin, 
 'jM. & W. 304; Binijhain y. Stanley, 2 Q. B. 117. Wheie the defendant jileads 
 illegality or fraud of tho original party to the bill: Masters v. Ibberson, 8 ('. B. 
 lOi); and that the plaintiff took the bill without value: Brown v. Phil/intt. 2 Moo. 
 k R. 28-5; on proof of tho illegality or fraud, the onus is thrown upon tho jilain- 
 tiff. Upon the trial of such an issue it is not the duty of tlie judge to deter- 
 mine as a preliminary fact whether fraud is sufUciently proved to cast on the 
 plaintiff the onus of proving consideration, but only wliether there is evidence 
 of fraud for the jury. And it is correct for him to direct them that if they think 
 the fraud proved in tho absence of proof by tho plaintiff of consideration, the 
 (lofeiidant is entitled to a verdict: Bailey y/Bidwell, 1,3 M. &, W. 7:^ ; Harvey v. 
 Towers. 6 E.\. 65H. Payment or tender by the acceptor after the bill becomes 
 due is no answer to tho action : Poole v. Tumbridge, 2 M. «t \V. 223 ; Chapman 
 (I ux. y. Vandevelde, 1 H. <fe W. o6„. 
 
 (q) Taken from Eng. R. G. pi. No. 9 of T. T. 1853, the origin of which was 
 
 '1- 
 
 1 
 
 m 
 
 . u 
 
 '\■'^i^ 
 
 t \ 
 
 m 
 
 'i 
 
 V ...J 
 
720 
 
 REQUL^ GENERALES AS TO PI,EADING. [Rs. 10,11, 
 
 "/f 
 
 may be averred thus : " that A. B. C. and D. (or some or one of them) 
 were or was interested," &c. (r) And it may also be averred " that 
 the insurance was made for the use and benefit and on the account of 
 the persons so interested." 
 
 10- (s) In actions on specialties and covenants, the plea of non est fac- 
 tum shall opera*:e as a denial of the execution of the deed in point of fact 
 only; Q) and all other defences shall be specially pleaded, inclmlinf 
 matters which make the deed absolutely void, as well as those which 
 make it voidable, (m) 
 
 1ft. (?') The plea of nil debet shall not be allowed in any action, (w) 
 
 Eng. li. G. ]il. No. 1 of H. T. 4 Wra. IV. Jervis N. H. 130, with which our old 
 Rule Q. B. pi. No. 1 of E. T. 5 Vic. Cam. R. 55 corresponded. 
 
 (r) In a declaration on a policy of insuranne it is necessary truly to discrlbe 
 the interest on which the policy is effectec'. : Cohen v. llannam, 5 Taunt. 101. 
 If, therefore, A. and B. jointly interested, effect an insurance, and there be two 
 counts, one avcrrin;; interest in A. and the other in B. plaintiffs cannot recover 
 on either count: lb. An averment that A. and B. and certain other jmrsons 
 trarling under the firm of A. B. & Co. were interested in the property, is siiffi- 
 ciet.t, on a motion in arrest of judgment: Wright et al v. Welbie, 1 Chit. Hep. 49. 
 
 (») Taken from Eng. R. G. pi. No, 10, of T. T. 1853, the origin of whicii was 
 Eng. R. G. pi. No. 2 of II. T. 4 Wm. IV. Jervis N. R. 130, with which our old 
 Rule Q. B. pi. No. 2 of E. T. 5 Vic. Cam. R. 55 corresponded. 
 
 (/) Defendant may show under this plea that he delivered the deed as an 
 escrow : Millership v, Brookes, 5 II. & N. 797. So defendants, a corporation, may 
 show tliat the deed is not binding on them ; Hill v. The Manchester and Sulfurd 
 Water Works Co. 5 B. A Ad. 866 ; see further Chambers v. Manchester and Mil- 
 ford Railway Co. 5 B. &, S. 588 ; Royal British Bank v. Turquand. 6 El. & B. 
 327. Besides, even if binding on defendant, a variance between the deed exe- 
 cuted and the deed declared upon may be taken advantage of under this plea: 
 Trott V. Smith, 12 M. & W. 688; and defendant may dispute the legal effect uf 
 the deed : lb. ; North et al v. Wakefield, 13 Q. B, 530 : Smith v. Scott, 6 C. B. 
 N.S. 771. 
 
 (m) If the defence be matter which renders the deed void or voidable, such n? 
 infancy, duress, alteration or fraud, there must be a special plea : Whelp'/ale's 
 Case, 6 Coke, 119 a. But wherever the contract is declared on in its altered rorm 
 the defence may be raised under the general issue: Waitf/h el ux. v. Biissell. 5 
 Taunt. 7<'7; Hemming v. Trenery el al, 9 A. tSc E. 926; Davidson v. Cooper et al, 
 11 M. & W. 778; s. c. 13 M. & W. 343; Heath et al v. Durant, 12 M. & W. 438; 
 Mason v. Bradley, 11 M. &. W. 590. 
 
 (w) Taken from Eng. R. G. pi. No. 11 of T. T. 1853, the origin of which was 
 Eng. R. G. pi. No. 2 of II. T. 4 Wm. IV. Jervis N. R. 130, with which our old 
 Rule Q. B. pi. No. 2 of E. T. 5 Vic. Cam. R. 56 corresponded. 
 
 («') It was at one time doubted whether the rule of Wm. IV. (with which the 
 rule here annotated corresponds) in terms applied to actions of debt on penal 
 statutes: Faulkner v. Chevell, 5 A. <fe E. 213. It was, however, afterwards 
 decided that it did not, and that nil debet is still a goocl plea in such actions: 
 Furl Spencer v. Swannell, 3 M. & W. 154 ; Jones v. Williams, 4 M. & W. 37.") ; s'.'c 
 
ith which our uld 
 
 rigin of which was 
 iiih wliich our old 
 
 Ss. 12, 13.] 
 
 Trinity Tbrm, 1856. 
 
 721 
 
 1^. (x) All matters in confession and avoidance shall be pleaded 
 specially, as above directed in actions on simple contracts, (y) 
 
 13. (z) In all cases in which the plaintiff (in order to avoid the 
 expense of the plea of payment or set-oiF) shall have given credit in 
 the particulars of his demand for any sum or sums of money therein 
 admitted to have been paid to the plaintiflF,or which the plaintiflF admits 
 the defendant is- entitled to set-off, it shall not be necessary for the 
 defendant to plead the payment or set-off oi' such sum or sums of 
 money, (a) But this rule is not to apply to cases where the plaintiff, 
 after stating the amount of his demand, states that he seeks to recover 
 a certain balance without giving credit for .my particular sum or sums, 
 
 also Williams v. Bryant, 5 M. & W. 447. If nil debet be pleaded to a declaration 
 containing a count on an account stated, it is bad for the whole declaration, 
 although to the other counts it is a good plea by statute : Calvert v. Moggs, 
 10 A. & E. 632. 
 
 {x) Taken from Eng. R. G. pi. No. 12 of T. T. 1853, the origin of which was 
 Eng. R. G. pi. No. 2 of H. T. 4 Wm. IV. Jervis N. R. 130, with which our old 
 Rule Q. B. pi. No. 2 of E, T. 5 Vic. Cam. R. 57 corresponded. 
 
 (y) See R. G. pi. 6. 
 
 (z) Taken from Eng. R. G. pi. No. 13 of 11. 7. 1853, the origin of which was 
 Eng. R. G. pi. of T. T. 1 Vic. as extended to set-oflF, Jervis N. R. 156, with which 
 our old Rule Q. B. pi. No. 15 of E. T. 5 Vic. Com. R. 23 corresponded. With 
 respect to the extension to cases of set-ofF, see Shirley v. Jacobs, 2 Bing. N. C. 88 ; 
 Ernest v. Brown, 3 Bing. N. C. 674 ; Kenyan v. Wakes, 2 M. & W. 764 ; Nicholl 
 V. Williams, lb. 758 ; Coates et al v. Stevens, 2 C. M, «fe R. 118 ; Booth v. Howard, 
 5 Dowl. P. C. 438 ; Eastwick v. Barman, 6 M. «fe W. 13 ; Rowland v. Blaksley 
 ct al, 1 Q. B. 403. 
 
 (a) A plaintiff is not bound to give the defendant a statement of the items of 
 payment admitted : Afyatt v. Green, 13 M. & W. 377 ; see also 7'owtison v. Jackson, 
 Jb. 374 ; Lamb et al v. Micklethwait, 1 Q. B. 400 ; Nosolli v. Page, 20 L. J. C. P. 81 . 
 When the payments are admitted in the particulars, the effect of the rule is to 
 put the admission on the same footing as if there had been a plea of payment, 
 and no evidence cf it except the admission in the particulars : Goatley v. Her- 
 ring, 12 L. J. C. P. 32, per Maule, J, ; Russell et al v. Bell et al, 10 M. «fe W. 340 ; 
 Turner v. Collins, 2 L. M. <& P. 99. Where the plaintiff in his particulars of 
 demand admits a payment generally, as "Cr. by bills," ifec, this is to be taken 
 as a payment admitted to have been made to the plaintiff by the defendant : 
 Smethurst v. '^nylor et al, 12 M. (& W. 545. But that admission may be explained by 
 showing on what account such payments were made: Mercy v. Oalot, 3 Ex. 851. 
 Where the plaintiff gave credit for a bill and then debited it as dishonored, it 
 was held that these statemeuts must be taken together and that there was no 
 admission of paj'ment : Green v. Smitliies, 1 Q. B. 796, It has been held by 
 Pollock, C. B., that if a plaintiff in his particulars of demand delivered in a cause 
 do not give credit for any sum paid, but in it refer to " full particulars" already 
 delivered, and those full particulars do give credit for § sura paid by defendant, 
 this would not dispense with the necessity of the defendant's pleading such 
 pnvment : Hart v. Mddleton, 2 C. <& E. 9 ; see also Bosley v. Moore, 8 DowL 
 P/C. 375. 
 
 40 
 
 % 
 
 m 
 
 I'W:! 
 
 ill 
 
 % 
 
 '-hM 
 
722 
 
 REGtTLiE GENERALKS AS TO PLEADTNO. [Rs. 14-16^. 
 
 
 
 or to cases of set-off where the plaintiff does not state thn particulars 
 of such set-off, (&) 
 
 14. (0 Payment shall not in any case be allowed to bo piren in 
 evidence in reduction of damages or debt, but shall be pleaded in bar. (J) 
 
 15. (/) In notions for detaining goods, the plea of non detinet shall 
 operate as a denial of the detention of the goods by the defendant, but 
 not of the plaintiff's property therein, (/) and no other defence than 
 such denial shall be admissible under that plea, (y) 
 
 16. (h) In actions for toris, the plea of " not guilty " shall 
 
 {h) Where a party demnnds a balance without stating how it arises, if tlio 
 defendant plead payment, the plaintiflf may show that in his balance credit hag 
 already been given for the sum pleaded: see Lamb y. 3ficklet/noaitc, 9 ])ij\\\, 
 r. C. 631; Towmon v. Jackson,. '2 D, & L. 869; Morris v. Jones, 1 Q. B. aOT. 
 
 (c) Taken from Eng. R. G, pi. No. 14 of T. T. 1853, the origin of which was 
 the latter part of Eng. R. G. pi. of T. T. 1 Vic. Jervis N. R. 167, with whicli tlic 
 latter part of our old Rule Q. B, pi. No. 15 of E. T. 5 Vic. Cam. R. 24 corres- 
 ponded. 
 
 (d) Payment cannot be given in evidence even for the purpose of showinij 
 that the jury ought not to give damages in respect of interest : Adams v. PalL; 
 3 Q. B. 2 ; see also Lafie v. MhIUhs, 2 Q. B. 254. V/hen pleaded generally to an 
 indebitatus count it means payment to any amount which the plaintiff can prove: 
 Freeman v. Crafts, 4 M. <fe W. 4; Alston et al v. Mills, 9 A. & E. 248 ; James v. 
 Lingham et al, 5 Bing, N. 0. 653; Moses v. Levy, 4 Q. B. 213. 
 
 (e) Taken from Eng. R. G. pi. No. 15, T. T. 1853. the origin of which wa;? 
 Eng. R. G. pi. No. 3 of H. T. 4 Wm. IV. Jervis N. R. 131, with which our old 
 Rule Q. B. pi. No. 3 of E. T. 5 Vic. Cam. R. 67 corresponded. 
 
 (/) The word " detention" in this rule or " detained" in a plea, mcang an 
 adverse detention: Clements v. Flijht, 16 M. «fe W. 42 ; AFason v. Farntll, 12 M. 
 <fe W. 674 ; Wliitehead v. Harrison, 6 Q. B. 423, 429. Defendant may sliow umkr 
 the general issue deliverj to a third person with the plaintiffs consent : Amlcr- 
 son V. Smith, 29 L. J. Ex. 460 ; or that the (fjoods were legally sold : Morgan d 
 al V. Marquis et d, 9 Ex. 146, 
 
 {g) If the defence be that plaintiff is^not possessed of the goods, or that defen- 
 dant is justified in detaining them, such a defence should be specially pleadeil: 
 Jiichards v. Frankum, 6 M. die W. 420. The defendant cannot either under a 
 plea of non detinet or of raot possessed, set up a tenancy in common with the 
 plaintiff: Mason v. Famell, 12 M. & W. 674 ; nor upon a plea denying property 
 in plaintiff, can defendant as a defence set up that there are other persons co- 
 tenants with the plaintiff who are not joined in the action : Broadbent v. Ledward, 
 11 A. A E. 209; but under a plea that the goods arc not the goods of the 
 plaintiff defendant may sfet tip a lien: Ixine v. Tewson, 12 A. «fe E. 116 n. For- 
 merly the defendant could not trayerse the bailment ; Walker v. Jo7ies, 2 C. i- 
 M. 672 ; Clements v. Flight, 16 M, 4 W. 42 ; W/iitehead v. Harrison, 6 Q. B. 423, 
 
 (/i) Taken from Eng^R. G. pi. No. 16 T. T. 1853, the origin of which was Eng, 
 R, G. pi. No. 4 of H. 1*. 4 Wra. IV. Jervis N P.. 131, with which our old Rule 
 Q. B. pi. No. 4 of E. T. 5 Vic, Cam. R. 57. corresponded. 
 
 (<■) The plea of " not guilty" which operates as a denial of tins breach of duty 
 
[Rs. 14-16. 
 hn particulars 
 
 ;o bo [tiven in 
 ided in bar. {d) 
 
 m (Jetinet shall 
 defendant, but 
 jr defence than 
 
 ilty" (0 shall 
 
 ' it arises, if the 
 valance creilit Ims 
 'detkwo'de, 9 Dowl 
 ,,, 1 Q. B. ;597. 
 
 igiQ of which was 
 )7, with whicli the 
 Cam. li. 24 cories- 
 
 nrpose of pho\vin;T 
 t: Adams V. P<dl:, 
 loci gcperally to an 
 plaiiititYcan'^pnjve'. 
 is E. 2-lS ; -hiiK^ V. 
 
 <i<rin of which was 
 'ith which our old 
 
 I a plea, means an 
 
 ^t may show unaer 
 
 Fs consent: ^l»(^i'- 
 
 ly sold : Morgan d 
 
 [cods, or that ilefen- 
 specially pleailed : 
 
 act either under n 
 ,1 common with the 
 la denying property 
 lo other persons co- 
 \roadbentv.Ledwanh 
 the goods of tlie 
 .. &E. lien. For- 
 [ker V. Jones, 2 C.& 
 \rrison, 6 Q. B. 423. 
 
 . of which was En?. 
 
 [which our old Kule 
 
 tlio breach of duty 
 
 R. IG.] 
 
 TRINITY TERM, 185G. 
 
 r23 
 
 operate as a denial only of the breach of duty or wrongful act allGfi;ed 
 to have been committed by the defendant, and not of the facts stated 
 
 or wrongful act and admits the inducement, docs not admit eircuinstanccs irre- 
 levantly stated, nor preclude the defendant from disi)ut'iig under that pica the 
 character of the act upon which frequently the action is founded. Thus in an 
 action for malicious arrest, " not guilty" denies tlio malice and want of proti.'ible 
 cause, though it admits the arrest : Cotton v. Broiimc, 3 A. <fe E. !i 1 2 ; Dnun- 
 moudv. I'iyoH, 2 Bing. N.C. 114; Watkim v. Lcc, 5 M. ct W. 270; Uouitsjiild v. 
 Drnry ct a', 11 A. & E. 98; Coles ct al v. The Crovcrnor and Coiiipmn/ of the 
 Bank of England, 10 A. & E. 437. So in an action for keeping mischievous ani- 
 mals, it denies the scienter: Thomas v. Morgan, 2 C. M. it 11. 40G; Card v. Case, 
 5 D. <fe L. 509. So in an action for a deceitful representation, it puts in issue 
 both the representation and the deceit : Mummery v. I'aul, 14 L. J. C. P. 9. So 
 in an action for erecting a cesspool near a well and thereby contaminating the 
 water of the well, not guilty puts in issue both the fact of the erection of the 
 well and the averment that the water was thereby contaminated : Kurlon v. 
 Scholejield, 9 M. it W. 605. So in an action for running down tiie plaintiff's 
 carriage, it may under not guilty be proved to have resulted from accident or 
 from the plaintiff's negligence: see Cfongh v. Bryan, 2 M. & Vt . 77o ; ^odd 
 v. JJolme, 1 A. ife E. 493 ; Dawson v. Moore, 1 0. & P. 25 ; Whallcy v. Pepper, 
 lb. 506 ; Bridge v. The Grand Junction Raihcay Co. 3 M. &, W. 244 ; Uakin 
 V. Brown ct al, 7 D. <fe L. 151 ; 7'he South Shields Waterworks Co. v. Cookson, 
 15 L. J. Ex. 315 ; Ilolden v. I'he Liverpool Xcw Gas and Coke Co. 3 C. 
 B. 1. 
 
 It is, however, to be observed as an established rule of pleading not affected by 
 the New Rules, that matters of inducement not material to the action cannot be 
 traversed, and therefore are not admitted by the plea of not guilty : see Jfum- 
 mery v. Paul, 1 C. B. 316 ; Mitchell et ux.y. Crasswcller ct al, 22 L. J. C. P. 100. But 
 it must not be supposed that not guilty admits only so much of the inducement 
 as is necessary to found tlie action if the wrongful act be done. Additional 
 duties may be created by subsequent and additional facts, and if such subsequent 
 statement raise an additional duty, it is admitted by not guilty, even tliough 
 without it an action might be maintained. Thus in an action ag.-'.iiist a slicriff 
 for breach of duty in executing process upon the delivery of the writ a^-ninst 
 goods, he is bound to look out for the goods, if he find them he is bound to levy, 
 if he levy he is bound to pay over the money ; for the breach of each of these 
 duties an action would lie, but if all are stated all the duties but not the breaches 
 thereof, are admitted by the general issue: see Wright v. Laimon ct al, G Dnwl. 
 P. C. 146 ; Leicis v. Alcock, lb. 389 ; Rowe et al v. Ames, 6 M. & W. 747 ; Xcalham 
 V. Frascr, 1 C. B. 815 ; Aikinsoti v. Raleigh et al, 8 Q. B. 79. It has been decided 
 in an action for running down the plaintiff's chaise that if the declaration allege 
 that the defendant by his servant was possessed of a horse, «tc., such p()sses>i()n 
 is admitted by not guilty : see Wheatley v. Patrick, 2 M. & W. 650 ; Hart v. Crow- 
 ley, 12 A. «fe E. 378; Tavernerw. Little, 7 Scott, 796; Dunford ct al v. Trattlm, 
 12 M. <t W. 529. So to a declaration that the defendant was employed hy 
 commissioners of sewers to make a sewer in a public highway, that ho kept and 
 continued in the highway two iron gratings lying tiiereon in the ctistody and 
 care of the defendant in forming the sewer, without placing any light to shmv 
 that the gratings were there, ncv guilty does not put in issue the averment tli.it 
 the gratings were in the custody and care of the defendant, for it is an iiiiniate 
 rial averment: Grew v. Hill, 6 D. «fe L. 664 ; see also Atkinson v. RaUigh ct at, 
 3 Q. B. 79 ; Greenell ct al v. Edgcome et al, 7 Q. B. 661 ; Bniett v. The Pen'msnlar 
 and Oriental Steamboat Co. 6 D. «fe L. 387. Every material allegation in the in- 
 ducement must bo specially traversed, even though improperly incorporated with 
 
 
 % 
 
 m 
 
 :• .^ 
 
(2-1 
 
 REGULiE GENEttALBS AS TO PLEADING. 
 
 [R. 16. 
 
 
 in the inducement, and no other defence than such denial shall bo 
 admissible under that plea; all other pleas in denial shall take issue 
 on some particular matter of fact alleged in the declaration. 
 
 Exempli yratid. In an action for nuisance to the occupation of a 
 house, by carrying on an offensive trade, the plea of " not guilty" will 
 operate only as a denial that the defendant carried on the alleged trade 
 
 th„ breach: see Frankum v. Earl of Falmouth et al, 2 A. <fe E. 4.')2 ; Dukn v. 
 Gosling, 1 Bing. N. C. 688; Drummond v. Pir/ou, 2 Bing. N. C. 114; Ihwfurd 
 ft al V. Trattles it al, 1 D. <fe L. 554; JIaddrick v. Heslop et al, 12 Q. B. 267; 
 Brink ct al v. Wlnffward, 2 C. <fc K. 656. In an action for negligently driving 
 a horse nnd cart against the plaintiff's horse, defendant cannot under not 
 guilty show that he was not the person driving when the injury happened, 
 and that the cart did not belong to unu ; Taverner v. Little, 5 Bing. N. (J. GV8. 
 Where the plaintiff's possession of the cart is alleged by way of inducement 
 it is admitted by the plea of not guilty: Emery v. Clark, 2 Moo. <t It. 200; 
 see also Hart v. Crowley, 12 A. <fe E. 378. Leave and license may be given in 
 evidence to an action for an assault: see Chrintopfierson v. Bare, 11 Q. B. 473; 
 Bivf/ham v. Clements, 12 Q. B. 260 ; see further Bennion v. Davison et al, 'i M. 
 & W. 179; Bingham y. Stanley, 2 Q. B. 117; Coward \. Baddeley, 4 H. & N. 
 478; or that the act complained of was the result of accident: Gihlom v. 
 Fepper, 1 Ld. Rayd. 38 ; Wakcmaii v. Robinson, 1 Bing. 213 ; Hall v. Fmmky, 
 3 Q. B. 919 ; but in an action for keeping a mixen near the plaintiff's house, 
 whereby the air was corrupted, defendant was not allowed under not guilty 
 to give in evidence an uninterrupted user for twenty years: Flight el al v. 
 Thoinas, 2 P. & D, 631. In trover not guilty puts in issue the wronf;:fiil 
 conversion : Young et al v. Cooper, 6 Ex. 259 ; overruling Stancliffe v. Hanlwkk, 
 2 C. M. tfe R. 1 ; and tlie defendant might under that plea prove a tenancy in 
 common with the plaintiff unless he destroyed the article : Jb. ; Fnrrur v, 
 Bct.u'ick, 1 M. <fe W. 682. Under not guilty the defendant cannot set up an 
 absohite property in himself by purchase from the plaintiff: Barton v. IJromi, 
 
 5 M. & W. 298 ; nor a right to detain the goods on a delivery of them to him by 
 the plaintiff as a security for rent : WJdte v. Teale, 4 P. <fe D. 43. The plea of not 
 possessed puts in issue the right of the plaintiff to the possession of the goods i»t 
 the time of the conversion : Jsaac v. Bekher et al, 7 Dowl. P. C. 516. A lien may be 
 given in evidence under a plea that " the plaintiff was not lawfully possessed:' 
 Bramlcio v. Barnett et al, 1 M, & G. 908. In general, under this plea defendant 
 may show that plaintiff has no right to immediate possession : Owen v. A'nialU, 
 
 6 Dowl. P. C. 244. Thus he may show that the goods were with the consent of 
 the plaintiff handed over to a third party : Vernon v. Shipton, 2 M. «fe AV. 9 ; or 
 pledged by the plaintiff to a third party because the plea raises in question the 
 right of possession as well as the right of property : Samuel v. Morris et al, C. <fc 
 P. 620. But under such plea the defendant cannot show an execution as hi? justi- 
 fication for making a seizure of the goods : Samuel v. Duk^ et al, 3 M. <fe W. 022 ; 
 nor a claim to seize the goods for toll dues for landing them at a particular 
 wharf: Webb v. Tripp, 1 Dowl. N.S. 689; which defences must be spceially 
 pleaded: Knapp v. Salsbury, 2 Camp. 500; Hall v. Fearnly, 8 Q.B. 919; Kiitrid- 
 V. Harder, 29 L. T. Rep. 92. He may, however, show that the sale of the (roods 
 to the plaintiff was fraudulent : Ashbyv. Minnett, 3 N. A P. 231 ; Nicolla v. JJnslanl, 
 2 C. M. <fe R. 659. The plea of not guilty and not possessed together make up 
 the old plea of not guilty, and whatever might be given in evidence under not 
 guilty before the New Rules of Pleading were first framed may be proved under 
 one or other of these pleas : miiimore et cd v. Greene et al, 18 M. <fe W. 107, />«' 
 
1. 452 ; DidrH v. 
 j 114; Dniiford 
 il, 12 Q. B. ;267; 
 rligently ilciving 
 nnnot under not 
 injury happened, 
 ) Bing. N. C. 078. 
 ay of inducement 
 2M00.& 11.200; 
 may be given in 
 are, 11 Q. B. 473 ; 
 )ai>i'<on et al, 'A M. 
 ddeley, 4 H. & N. 
 ident: Gibbons v. 
 ; Hall V. Ftimilnj, 
 3 plaintiff's lumse, 
 . under not guilty 
 rs : Fliglit et al v. 
 ssue tlie wrongful 
 ncliffc V. IlnrJwkk, 
 )rove a tenancy in 
 1 ; lb. ; Farrur v. 
 cannot set up an 
 ; Barton v. Bi-owv, 
 of them to him by 
 13. The plea of not 
 lion of the goods at 
 516. A. lien may be 
 iwfully possessed ^' 
 this plea defendant 
 n : Owen v. KnujU, 
 with the consent of 
 n, 2M. &W. 9; Of 
 ises in question the 
 , Morrix et al, OC.a 
 ecution as lu ? .i"**'- 
 ia;, 3M.<feW.02'2; 
 
 lem at a particu ar 
 must be speciallv 
 oQ.B. 919; AVmirt 
 ;he sale of the irood3 
 ,1 ; Nicolh V. 7)'"s((iir((, 
 sd together make up 
 evidence under not 
 av be proved under 
 ;3 M. & W. 107, pa 
 
 R. 16.] 
 
 TRINITY TERM, 1856. 
 
 725 
 
 in such a way as to be a nuisance to the occupation of the house, (») 
 and will not operate as a denial of the plaintiff's occupation of the 
 house. 
 
 In an action for obstructing a right of way, (0) such pica will 
 operate as a denial of the obstruction only, and not of the pl.iintitT'.s 
 right of wa}'. 
 
 In an action for slander of the plaintiff in his ofHce, profession, or 
 trade, the plea of ''not guilty" will operate in denial of speaking the 
 words, of speaking them maliciously, and in the defamatory sense 
 imputed, (p) and with reference to the plaintiff's oflice, profession, or 
 
 Aldcrson, B. ; see nLso Kijnastoii v. Crowh, 14 11. &. W. 260; Unwin ct al v. St 
 Quintin, 11 M. tfe W. 277. 
 
 [n) In an action for erecting a cesspool near a well and tliGreb}- contaminating 
 the water of the well, the i)lea of not j^uilty puts in i.ssue both the fact of the 
 erection of the cesspool and that the water was thereby contaminated: Norton 
 V. Scholofield, 9 II. & W. C65. But under this ])lea defendant cannot set up a 
 right bj' prescription to continue the nuisance: Fhgld et al v. Thamis, 10 A. it E. 
 690. It was at one time held that under the general issue defendant miglit show 
 tluit his trade was carried on in a proper and convenient place: Hole v. Barlow, 
 4 C. B. N.S. 334. But the contrary is now held to bo the law: Bamford v. 
 Turnley, 3 B. a, S. C2. 
 
 (0) An individual cannot sue for the obstruction of a public way unless he has 
 suffered a particular and special damage from the obstruction: Wilkes v. The 
 Ilungerford Market Co. 2 Bing. N. C. 281 ; AV,.9c v. Groves et al, .> M. .t G. 613; 
 Simmons v. Litlj/stone, 8 E.k. 4;)1. A reversioner mu\- maintain the action where 
 the obstruction is of a permanent character and injurious to his reversion: Bax- 
 ter V. Tai/lor, 4 B. A Ad. 72 ; Kidyill v. Moor, C. B. 301 ; Bell v. Tim Midland 
 Railway Co. 10 C. B. N.S. 287. 
 
 (/)) In an action for libel or jlander the plea of not guilty puts (he malice in 
 issue: Hoarc v. Silverlock, 9 C. B. 20. But the malice, e.vcept in the case of a 
 privileged comnuinication, is to be presutiieti if tiie Tiialter publisluMl l)e defama- 
 tory and false: Bromage et al v. Prosser, 4 B. it ('. 217 ; Haire v. Wdxon, 9 B. it 
 C. 043; Fisher v. Clement, lU B. it C. 472. The inference of malice nuiy he dis- 
 proved: McNab V. Magrath, T. T. 7 Wm. IV. MS \i. .t II. Dig. " Libid and 
 Slander," i. 8. Under the general issiu^ in libel the defendant may disprovis the 
 fact of publication, or show thiit it is not of an injurious character: Pannilcr v, 
 Coujdand et al, 6 il. it W . 105; Baiilis v. Laurence. 1 1 A. it K. 920; O'/lrim v. 
 Cliiiiel.t, 3 I), it L. 676 ; but the truth of the defendant's remaiks on the report 
 of a trial and the evidence given thereat cannot be i;iven in evidence under not 
 guilty: Small v. McKeii.zie, l)ra. Uej). I>i3; Jiiimnri/ v. Weld, et u.t. Car. it M. 104; 
 Under/rood v. Parks, 2 Str. 1200; Smith v. liichard.'^un, Willes, 20; and if com- 
 ment be made the defendant may plead ihat the snjiposed libel was a fair and 
 bona fide comment witliout nudice, on the conduct of the plaintiff in a |iublic 
 ciipacity: Earl of Luc an v. Smith, 2 Jur. N.S. 117<>. if llie action be for slander 
 all the circumstauces immediately attending and preceding the speaking (jf the 
 words may be given in evitlence under the general issue: Keegan v. Rob.ion, 3 U. 
 Q.(l. B. 375. So the defendant may give facts and circumstances iu (evidence 
 in mitigation of damages; Johnson v, Eastman, Tay. IJep. 243. If the woj'd.ii bu 
 
 i-li 
 
 i 
 
 ■ t 
 
 :M 
 
 •% 
 
 mm 
 
726 
 
 reoul.t: qknerales as to pleading. 
 
 [R. 16. 
 
 trade, {q) but it will not operate as a denial of the fact of the plaintiflf 
 holding the office, or being of the profession or trade alleged, (r) 
 In actions for an escape, it will operate as a denial of the neglect 
 
 ioiKiblo per ae the pli'fi of not guilty puts in issue the spocinl damafo 
 ns wi'll fls tije uttering' tlie words: Wi/dr/ v. Elslon, 8 C. ]i. 142. In such 
 
 not actionablo 
 alic^i'd 
 
 nn action the plaintiff oannol jirove general damage bej-ond the special dainago 
 laid: Dlzon v. Smith, 5 II. & X. I.jO. In an action for words alleged to have 
 been spoken in a particular <lcfamatory sense, the plea of not guilty not only 
 denies the speaking of the words but the speaking of them in the sense alleged: 
 Wiilkin V. JIall, L. 11. 3 Q. IJ, aOtj. When the declaration contains i>refatory 
 allegations the defendant will not be allowed under uot guilty to go into evi- 
 dence ns to the prefatory al!cc;ations: (jwynne v. S/iarpe, Cur. it M. H'ti'l, per 
 Palteson, J. ; J/eminy et iix. v. Power, 10 M. ct \V. 501. The defendant ma}-, how- 
 ever, show that the words sjinken were used in a j)rivileged communication: 
 Richardu v. Boulton, 4 O.S. 95; Lillie v. Price, 6 A. & E. M'l; Jloare v, Silver- 
 lock, 9 C. B. 20; Earl Lucan v. Smith, 1 II. &, N. 481. Privileged commuiuca- 
 tions comprehend all statements made bona fide in the performance of a duty, 
 or with a fair and reasonable i)urpose of ])rotecting the interest of the person 
 making them: Somerville v. Hinckinn, 10 C. 1>. 583; see also Tuaon v. Evans, 
 12 A. & E. 733; Coxhead v. Richards, 2 C. B. 5(30; Blackham v. Ptigh, lb. Oil; 
 Benvcltv. Lcacon, lb. f)28; WHkoh v. Robinunn, 1 (}. B. 08; Gri/fifhx v. Lewis, 
 i6. 01 ; Ifopicood v. 'J'hom, 8 C. B. 293 ; 7ai/lor v. Jfaivkins, 10 Q. B, 308. But 
 the ])liiintiti' may in answer show actual malice : Fountain v. Boodle et ux. 3 Q. B. 
 6; Taylor v. Hawkins, 10 Q. B. 308. 
 
 {</) In a count for slander the plaintiff alleged that he was a commission mer- 
 chant buying wheat, and that defendant .sjioke of him in relation to his trade 
 the words " I sold wheat to Mr. Marsden, and he cheated mc out of two bushels 
 of wheat, and when I went to try the scales he finger-rigged some screw about 
 thq scales and threw on som^? weight at the same time, and I will not patronize 
 liim any more:" Held clearly a slander of the plaintiff in his business: ^[arfden 
 V. Ileiithrson, 22 U. C. (i. B. 5S5. Where in an action by a person describing 
 himself in the declaration as a druggist^ vendor of medicines and apothecary, 
 the witnesses j)roved that several persons practising phj'sie had purchased 
 medicines from him, this evidence upon a motion for a nonsuit waa considered 
 sufiicieiit to support the verdict: Terry v. Starkweather, Tay, Rep. 57. But 
 where the plaintiff described himself as "a physician and surgeon licensed to 
 practice according to the laws of the province," it was held that proof that he 
 acted as such was insuflicient without showing a license : Burwcll v. Hamilton, 
 II. T. 2 Wm. IV. MS. 11. & II. Dig. " Libel and Slander," ii. 8. 
 
 ((•) In an action for a libel the defendant at first pleaded not guilty, but after- 
 warils jileaded to the furtlu-r maintenance of the action that the ]>laintitf had re- 
 covered damages against another person for the same grievance. New as-signnicnt 
 that the {lending action was brought for other and different grievances. I'lci 
 to the new assignment not gnilt\-. Held that this did not admit the inuendoes, 
 and that by pleading not guilty to the new assignment the defendant had raised 
 precisely the same issue, as if the libel had been set out in the declaration and 
 the defendant, had pleaded not guilty to it : Dake of Brunswick v. Pepper, 2 C. cfe K. 
 083, we Rrlo, J. To an action for words imputing to the plaintiff in the way of his 
 trade that he was dishonest and a cheat, the defendant pleaded a judgment reco- 
 vered in a former action. Upon the trial of the issue upon mil ticl record, the 
 record when produced showed that the former action had been brought for call- 
 ing tlie plaintiff a thief simply and not ia the way of his trade: Held, no bar: 
 Wudsimrth v. BtiUloj, 23 L. j". (I. B. 3. 
 
R. 16.] 
 
 TRINITT TERM, 1856. 
 
 
 p-nilty, ^i"t nfter- 
 "pliiiiilirt' Imd re- 
 New assignniont 
 Trievanccs. I'lei 
 lit the inueneloes, 
 iidant lintl rniaed 
 doclaration and 
 Pepper, 2 C. & K- 
 in tlie way of his 
 ft jud^^ment I'oco- 
 ;/ tiel reconl, the 
 bvouj^ht for call- 
 b: Held, uobar: 
 
 or default of the sheriff or his oflScers ; (s) but not of the debt, (0 
 judgment, or preliminary proceedings, (m) 
 
 In actions against a carrier, the plea of " not guilty" will operate as 
 a denial of the loss or damage ; (i>) but not of the receipt of the goods 
 as a carrier for hire, or of the purpose for which they were received, (jc) 
 
 (s) An action for an escape should bo brought against the sherifF, and not 
 against tlie I)ailiff who arrested, unless the defenilant has been guilty of a rescue ; 
 Wilson V. McVtUloiigh, 5 0. S. 680. But defendant may show under not guilty 
 that tlie bailiff guilty of the default was specially appointed by the plaintilf : 
 Ford V. Lechc, 6 A. i E. 699 ; but cannot siiow under it an authority from 
 plaintilF not to execute the writ : Ilowden v. Standish, 6 C. B. .504. lie may show 
 tlie discharge of the defendant under the Insolvent Act; Wallinger w. G'lrnei/, 
 11 C. B. N.S. 182. The plea denies actuardamago as well as tlie default alleged 
 as the cause of damage : WJIlimns v. Mostyn, 4 M. (k W. 145 ; Wylie v. JJirfh, 
 4 Q. B. 56C ; Bales v. Wingficld, lb. 580 n. 
 
 (0 The plea admits all matters stated as inducement in the declaration t 
 Wrir/ht V. Lahmon, 2 M. & W. 739 ; Lewis v. Akovk, 3 M. <fe W. 188 ; Jiowe ct at 
 y. Ames, M. & W. 747. In an action against a sheriff for the escape of A. B., 
 arrested on a ca. re. at the instance of the plaintiff, the declaration averred 
 "that lie (A. B.) was indebted to the plaintiff in a large sum of money, to wit, 
 <tc., upon and in respect of certain causes of action before then accrued to the 
 plaintiff against the said A. B.," ttc. Pleas, 1st, not guilty, 2d, denying tiiat 
 A. B. was indebted to tlie plaintiff modo et forma, <fec. Held that under these 
 pleadings i)laintiff was entitled to recover if he showed that ami debt accrued to 
 him against A. B. before he sued out the writ : O'Rcilhj v. Moodic, 4 U. C. Q. B. 
 2G6. In debt for an escape the slieriff cannot plead in bar of the action satisfac- 
 tiou previous to the issuing of tlie writ: Mamon v. Hamilton, 5 O. S. 118. 
 
 («) It is not open to a sheriff sued for an escape to set up technical objections 
 iu regard to forms of action and jiointe of practice having nothing to do with 
 the fact of the existence of a debt: O'Reilly v. Moodie, 4 U. C. Q. B. 266. To 
 an action against a sheriff for the escape of a party attached, the sheriff will not 
 be allowed to deny the submission or tlie award, or to set up any defence which 
 might have been taken in the proceedings upon the award — he cannot go fur- 
 ther back than the order authorizing the attachment: Hantky v. Smilh, 4 U. C. 
 Q. B. 181. 
 
 ((') A person engaged to transport goods for hire is not by virtue of such 
 engagement merely a common carrier and as such liable for all accidents, 
 wlietlier negligent or not : Benedict v. Arthur, 6 U. C. Q. B. 204 ; Benett v. Tlie 
 PciiinsHlar nnd Oriental Steamboat Co. 6 1). <fe L. 387. AViicre several defendants 
 are charged as common carriers andjdead, traversing only the delivery to tiiem 
 of the parcel without saying "or any or either of them," the plea notwithstand- 
 ing is good: Parke et al v. J)avis et al, 6 U. C. Q. B. 411. 
 
 (w) The defendant under not guilty cannot set up that the goods were lost 
 through the negligence of the plaintifl: Webb v. Page, 6 M. & G. 196 ; nor is it 
 competent for defendant under sucii apl?a to set up as a defence that the jijalntiff 
 misrepresented the weight of the goods which the defendant agreed to carry : 
 Webb V. I'age, 6 Scott, N. R. 951. In an action (by the plaintiffs in ejectment) 
 against defendants as common carriers for not delivering within a reasonable 
 time the record of A'm Prins at tlie assize town, it was held not open to the 
 defendants to put in issue the plaintiff's title to the land, the subject of the action 
 of (jeetment: Parke et al v. Davis et al, 6 U, G. Q, B. 411. 
 
 ';■•)>: I 
 
 i.-i 
 
 
 1'^ i 
 
728 
 
 R^GVLJE GENERALES AS TO PLEADING. [Rs. 17, !&. 
 
 17. (x) All matters in confession and avoidance shall be pleaded 
 specially, as in actions on contract, (y) 
 
 18. (z) In actions of trespass to land, the close or place in wliich, 
 &c., must be designated in the declaration by name, or abuttals, or 
 other description, (a) in failure whereof the plaintiff may be ordered to 
 
 YU 
 
 (x) Taken from Enfr. R. G. pi. No. 11 of T. T. 1853, the ovii,'in of wliich was 
 En^. H. G. pl. No. 4 of 11. T. 4 Win. IV. Jervis N. R. 133, with which our old 
 Ruiu Q. B. pr. No. 4 of E. T. 5 Vic. Cam. R. 60, corresponded. 
 
 (?/) If the breach or wrongful act bo admitted, and the defendant seek to pro- 
 tect himself from the consequences thereof by other circumstances, he nniat 
 plead specially. Thus it has been l^eld that a carrier to avail himself of a 
 statute which requires notice, must plead it : Si/7>is v. Chaplin tt al, 5 A. «t E. Cu'A ; 
 Webli V. J'dffe, 6 M. & G. 196. Formerly in trover a lien could not be {^iven iu 
 evidence under not guilty : Mliiic v. 2\al, 12 A. A E. 106 ; StancUffe v. Hanlniche, 
 3 Dowl. P. C. 762 ; see also Kynai^ton ct al v. Crock, 14 M. <fe W. 266: but now it 
 seems it may, and is at all events clearly admissible under not possessed : Ukharda 
 V. Symons, 8 Q. B. 90. 
 
 {z) Taken from Eng. R. G. pl. No. 18 of II. T. 1853, the origin of which was 
 Eng. R. G. pl. 5 of II. T. 4 Wm. IV. Jervis N. R. 134, with which our old Rule 
 Q. B. pl. No. 5 of E. T. 5 Vic. Cam. R. 60, corresponded. 
 
 (a) The plaintiff must prove the abuttals as .lUeged, and though he will not 
 bo defeated by a minute variance, yet he must show that the close in whicii tlie 
 trespass was committed is faithfully described in substance, so as to give the defen- 
 dant full information : Webber v. liicharJs, 1 Q. B. 439. A statement of two abut- 
 tals oidy may be sufficient : North v. Ingamelh, 9 M. «fe W. 249. The descrip- 
 tion, as of a particular township, must be proved as laid : Mnttice v. Farr d al, 
 Tay. Rep. 218. A house, in one part of which the plaintifFs shop was kept, 
 and in the rest of which the plaintiff's clerk and his family resided, although 
 the plaintiff never resided there, was held to be properly described as pInintifFs 
 dwelling-house: Bcatfy v. McMasters et al, T. T. 2 & 3 Vic. MS. R. & li. Dig. 
 " Trespiss," ii. 10. Where the declaration stated that the defendant broke and 
 entered " certain lands of the plaintiff covered with water, being the bed and 
 channel of the river T, and under the same in the several parishes of L. in L, in 
 the county of G." it was held that the locus in quo was suttieiently described by 
 name : JMkc of Beaufort v . Vivan, 7 Ex. 580. The locus in quo should be desigiiatei 
 by abuttals or other description as it was at the time of the trespass and not at 
 the time of the declaration filed : Ilumfrey v. lite London and North Wed liail- 
 viay Co. lb. 325; see also Lempriere v. Umnfrey, 3 A. ife E. 181. In trespass to 
 a dwelling-house it has been held a bad plea to plead that the close in which, 
 &c., is the close of the defendant : Vail v. Noble et al, 2 U. C. Q. B. 142. So in 
 trespass for breaking and entering the close of the plaintiff, it was held a bad 
 plea for the defendant to plead that the closes in which, tfec, was not nor was 
 either of them the close of the plaintiff: Woodruff et al v. Davis, lb 4u4. 
 To a declaration setting out the close by metes and bounds, the defendant 
 pleaded that the part of the close on which, <fee., was his close, and not the close 
 of the defendant, as stated in the plea, the replication was held good : Hiscott v. 
 Cox, 1 U. C. Q. B 489. To support an action of trespass upon the plea of tha 
 close not being the close of the plaintiff, the plaintiff must prove an actual and 
 immediate occupation of the loc\is in quo: McNeil v. Train, 5 U. C. Q. B. 91.. 
 And under that plea the question of possession is a fact for the jury : Ib^ 
 
<Tjin of wliich wns 
 hich our old Utile 
 
 liougli lie will not 
 ;lose in wliich the 
 ( to give the cli'fun- 
 ment of two nbut- 
 49. The doscrip- 
 lU'we V. Fan- d al, 
 8 shop was la'pt, 
 resided, nlthoii<rh 
 [•ibed as pkintitfs 
 )[S. R. & H. Dig. 
 [cndnnt broke and 
 cing the bed and 
 .hcs of L. in L, in 
 ntly described bv 
 ould be designate i 
 ospasa and not at 
 I Xorth Wtst Rail- 
 ,. In trespass to 
 he close in which, 
 (l B. 142. So in 
 it was held a bad 
 , was not nor was 
 ,. Davh, lb 'liJ4. 
 ds, the defendant 
 and not the close 
 d good : Hiscolt v. 
 )n the plea ot tha 
 ove an actual and 
 5 U. C. Q. B. 01.. 
 e jury : Ib^ 
 
 Rs. 19, 20.] 
 
 TftlNITY TERM, 1856. 
 
 r2a 
 
 amend with costs, or give such particulars as the Court or Judge may 
 think reasonable. (Jj) 
 
 10. ((■) In actions of trespass to land, the plea of " not guilty" shall 
 operate as a denial that the defendant committed the trespass alleged 
 in the place mentioned ; (tr) but not as a denial of the plaintiff's pos- 
 session, or right of possession of that place, which, if intended to bo 
 denied, must be traversed specially, {d) 
 
 20. (e) In actions for taking, damaging, or converting the plain- 
 tiff's goods, the plea of " not guilty" shall operate as a denial of the 
 
 {h) Court or Judge — Relative powers, see note w to section 48 C. L. P. Act. 
 
 (t) Taken from the Eng. R. G. pi. No. 19 of T. T. 1853, the origin of which 
 was Eng. 11. G. pi. No. 6 of II. T. 4 Win. IV. Jervis N. R. 134, with which our 
 old Rule Q. B. pr. No. 5 of E. T. 5 Vic. ; Cam. R. 60, corresponded. 
 
 {('(■) Where in trespass qunre dansum frcgit by one of two defendants in 
 common it was proved that the defendant entered on the land under a writ of 
 execution against the goods of the other tenant, it was held that such entry 
 could qot be given in evidence under not guilty : Newkirk v. Payme, O, S. 453. 
 
 {d) The plea of not possessed denies the possession stated in the declaration, 
 i. e. a sufficient possession to sustain the action : Heath v. Milward, 2 Bing. N.C. 
 OS ; Harrison v. Dixon, 12 M. & W, 142 ; that is to say, as against a mere wrong- 
 doer the actual possession ; as against a defendant alleging title the legal right 
 to possession : Graham v. Peat, I East. 244 ; Pugh v. Roberts, 3 M. it W. 458 ; 
 Browne V. Dawson ct al, 12 A. <$e E. 624 ; Asher et tix. v. Whitlock, L. R. 1 Q. B. 1 ; 
 Purnell v. Young, 3 M. <fe W. 288 ; Harrison v. Dixon, 12 M. <k W. 142 ; Jones v. 
 Chapman et al, 2 Ex. 803. The plaintiff complained of an injury to o messuage 
 and premises in his possession, and the defendant pleaded not possessed ; and it 
 being found that the plaintiff liad only part of the house, the defendant occupying 
 the rest, it was held that the plaintiff was entitled to a verdict: Fenn v. Grafton 
 ct al, 2 Bing. N. C. 617. The plea of not possessed puts in issue the possession of 
 the close described in the declaration: Bond v. Downton, 2 A. <fc E. 26; and if 
 more than one close be described, the issue upon the plea is divisible, and the 
 defendant will be entitled to a verdict as to so much as is not proved : Vhythian 
 v. M'hile et al, 1 M. <fe W. 216; Wilcox v. Montgomery, 5 O. S. 312. The owner 
 legally entitled cannot maintain trespass before entry : Litchfield v. Ready, 3 Ex. 
 9;JH ; Turner v. The Cameron's Coalbrook Steam Coal Co , lb. 932; Ryan v. Clark, 
 14 (i. B. 65 ; Harrison v. Blackburn, 17 C. B. N.S. 678. But an actual entry, when 
 luade, relates to the time of the legal right to enter: Barnett v. Earl of Guildford, 
 11 Ex. 19 ; Anderson v. Radcliffe et al, E. B. & E. 806. The plea of liberum tene- 
 mentum admits the possession, and renders it incumbent on the defendant to 
 prove title either by deed or by showing twenty years' actual possession: Brest 
 v. Lever, 7 M. & W. 593. On this plea the plaintiff is entitled to a verdict if he 
 establish a title to that part of the close on which the trespass was committed, 
 and is not bound to prove title to the whole close: Smith v. Royston, 8 M. & W. 
 381. To a declaration in trespass quare clausam fregit, and for carrying awaj* the 
 plaintiff's hay and corn, the plea of liberum tenementum was held bad: Wilcox v. 
 Montgomery, 5 O.S. 312. 
 
 (e) Taken from Eng. R. G. pi. No. 20 of T, T. 1853, the origin of which was 
 Eng. R. G. pi. No. 5 of H. T. 4 Wm. IV., Jervis N, R. 134, with which our old Rule 
 Q. B. pi. No. 5 of E. T. 5 Vic,, Cam. R. 61, corresponded. 
 
 i 
 
 i 
 
 1 ( 
 
 \:. % 
 
 •I ' '11 
 
 B,. 
 
730 
 
 REOULiU aENERALES AS TO PLEADING. 
 
 [R. 21. 
 
 defendant having committed the wrong alleged, by taking, daninging 
 or converting the goods mentioned; (ee) but not of the plaintiff's pro- 
 perty therein. (/) 
 
 21 {(J) In every case in which a defendant shall plead the general 
 issue, intending to give the special matter in evidence by virtue of an 
 Act of Parliament, ho shall insert in the margin of the plea the words 
 "by statute," (/t) together with the year or years of the reign in which 
 the Act or Acts of Parliament upon which ho relies for that purpose 
 were passed, and also the chapter and section of each of such acts, (i) 
 
 ■t 
 
 n 
 
 ^K 
 
 n 
 
 rA; 
 
 1 H 
 
 'i'-B' 
 
 ■ n. 
 
 ■fcev. Uiirham et ai, K. T. 3 Vic. MS. K. it ll. l)i<r. "TrestmHs," ii. 
 16; Carey v. Tale, 6 O.S. 147; Abrama v. Moon, 1 U. C. Q. B. 552; J^unn v. 
 Turner el al, i U. C. Q. B. 282. 
 
 (/) Tlic plea of no property puts in issue the property ns well ns the jjouses- 
 eion : Harrison v. Dixon, 12 M. & W. 142 ; Ashmore v. Hardy et al, 7 C. & P. 501. 
 Plaintiff to maintain the action should have had the possession of tlie goods: 
 Ward V. Macaulai/ et al, 4 T. 11. 489 ; Young v. llichem, C (^ B. (iotl ; eitluir actual 
 or constructive: Smith v. Mills, 1 T. R. 675; or a legal right to the immediate 
 possession: Balmc et al v. Uutton et al, 9 Bing. 471. But possession ns a bailee 
 is sutKciunt even against the absolute owner for a wrongful taking of the goods: 
 ColwiU V. Reeves, 2 Camp. 575; lirierly v. Kendall et al, 17 tj. B. 037; Turner 
 eta! V. Ilardcastle, 11 C. B. N.S. 683. Possession \b prima facie evidence of title 
 against a wrong-doer : Elliott et tix. v. Kemp, 7 M. & W. ^12, per Parke, .1. If tlie 
 defendant claim the goods he may under this plea show his title and that tiie 
 plaintiff's title is fraudulent; for in such a case as against the defendant the 
 plaintiff lias no property: Ificolls v. Bastard, 2 C. M. ife R. 659 ; Ashbi/ v. Minniit 
 el al, 8 A. cfc E. 121. It has been held that if the defendant justify taking tlie goods 
 as assignee of a bankrupt, and the plaintiff reply that the goods are not the goods 
 of the assignee but the goods of him, the plaintiff, he cannot under that rcplicauon 
 dispute tile bankruptcy : Jones v. Brown et al, 1 Bing. N. C. 484. 
 
 {(/) Taken from Eng. R. G. pi. No. 21 of T. T. 1853, the origin of which was 
 Eng. R. G. of T. T. 1 Vic. Jervis N. R. 156, with which our old Rule (J. B. pi. 
 No. IG of E. T. 5 Vic; Cam. R. 24 corresponded. 
 
 (A) " According to the statute " instead of " by statute " written in the margin, 
 may be sufficient : Robertson v. Cooley et al, 7 IT. C. Q. B. 305. The court will 
 not in general with this plea allow other pleas: Neala v. McKemie, 2 Dowl. P. 
 C. 702; Fisher v. The Thames Junction Railway Co. 5 Dowl. P. C. 773; O'Brien 
 V, Clement, 15 M. & W. 435; Leffffe v. Boyd, 1 M. & G. 898; but sec Langjord 
 V, Woods, 7 M. «fe G. 625; Bartholomew v. Carter, 9 Dowl. P. C. 896. 
 
 (•) Under our old rule the words "by statute" in the margin were sufficient. 
 It was not necessary to give the year of the passing of the statute, much less the 
 chapter and section. The old English rule was not more exacting. But where 
 in an action of trespass for hunting over plaintiff's land, the defendant pleaded 
 not guilty by statute, the court on an affidavit of the plaintiff that he could not 
 discover the statute under which the defendant meant to justify, made absolute 
 a rule upou the defendant to point out within three days the statute under wliich 
 the plea was pleaded, or else that the words " by statute" should be struck out 
 
■U as the posses- 
 (//, 7 C. & r. 501. 
 in of the goods: 
 0(1; cithci'uctual 
 o tiic immediate 
 ;ssion ns a bailee 
 n;^ of the goods: 
 I). Vto7; Turner 
 (iviik'iu'O of title 
 rarko, .1. If the 
 itle and that the 
 lie dt'ieiuhuit the 
 An fib;/ V. Minnitt 
 taking the goods 
 are not the goods 
 that roplicalion 
 !4. 
 
 in of which was 
 d Rule Ci. B. pi. 
 
 en in the margin, 
 The court will 
 :cnzic, 2 Dowl. P. 
 
 C. 773; ffBrien 
 3ut sec Laiiff/ord 
 
 896. 
 _in were sufficient, 
 ite, much less the 
 ting. But where 
 lefendant pleaded 
 that he could not 
 fj', made absolute 
 itute under wliicU 
 uld be struck out 
 
 Rs. 22, 23.] 
 
 TRINITY TERM, 185G. 
 
 731 
 
 and shall specify whether such acts are public or otherwise, otherwise 
 such plea shall bo taken not to have been pleaded by virtue of any 
 Act of Parliament; (J) and such momorandum shall bo inserted in tho 
 margin of the issue and of tho nisi prius record, (/i') 
 
 2!5. (0 -^^ P^ca containing a defence arising after the cominenconicnt 
 of tho action, may be pleaded, together with pleas of defences arising 
 before the commencement of tho action ; (w) provided that the plaintiff 
 may confess such plea, and thereupon shall be entitled to tho costs of 
 the cause up to the time of pleading such first mentioned plea, {i>) 
 
 33. (<>) When a pica is pleaded with an allegation that the matter 
 of defence arose after tho last pleading, (/j) the plaintiff shall bo at 
 liberty to confess such plea, and shall bo entitled to the costs of the 
 cause up to tho time of pleading such plea; (q) provided that this and 
 
 of the margin of his plea ; Co;/ v. Lord Forester, 8 M. »t W. 312, Tho comprehen- 
 siveness of the general issue " by statute " is not affected by any of the ucw 
 rules; lioss v. Cliflon et al, 11 A. «fe E. 631. 
 
 (/) If tho defendant omit to follow tho requirements of this rule, ho cannot 
 give special matter in evidence to bring himself within the terms of an act of 
 parliament which allows a plea of not guilty : Co;/ v. Lord Forester, 8 M. & W. 312. 
 All amendment may be allowed even after verdict: Edwards v. llodijes, 15 C. B. 
 477. or appeal : VaiiNattcr v. The Buffalo and Lake Huron liailiefi;/ Co. 27 U. C. 
 Q. B. 581. 'J'he parties may so act at tho trial and subsequently as to t>e pre- 
 cluded from raising tho objection of the omission of a particular statute in tho 
 margin o( a plea; Bur ridge v. Nicholelts, 6 U. &, X. 383. 
 
 (/r) Whore a defendant pleaded not guilty, intending to justify under a statuto, 
 but the nisi prius record had not the words "by statuto" added to the margin, 
 the judge at nisi prius refused to allow an amendment by the adiiition of these 
 words, as it eoidd not be shown that they were in the margin of the defendant's 
 plea: Fur man v. JJawes et al, 1 Car. &, M. 127. 
 
 (I) Taken from Eng. R. G. pi. No. 22 of T. T. 1853. 
 
 ("0 It is enacted by the C. L. P. Act that "any defence arising after tlie eora- 
 meneement of the action shall be pleaded according to the fact;" section 1)7. 
 The notes to that section may be read with reference to the rule here annotated, 
 and in addition to the cases there cited see Jones v. IlUl, L. R. 5 (I. B. 2;!i). 
 
 («) "Where the defendant after pleading by leave of a judge withdraws Ids plea 
 and pleads matter of defence arising afterwards, and the ]'laiiitilf confesses such 
 plea, the plaintiff is entitled to his costs up to the time ul pleading such plea: 
 Howarlh v. Brown, 1 II. &, C. 654. 
 
 (o) Taken fi'om Eng. R. G. pi. No. 23 of T. T. 1853. 
 
 (/)) Commonly known as a plea jsuw darrein continuance : see section 08 C. 
 L. P. Act, and notes thereto. 
 
 (?) If tho plea go to part only of tho action, tho iilaintifT may enter a nolle 
 prosdjui or discontinuance; but if he reply or demur, and the defendant succeed, 
 the defendant will be entitled to his costs up to the time of pleading : Lytllelon 
 V. Cross et al, 4 B. tt C. 117. 
 
 
 '1 W' li" 
 
 m 
 
 1 ■.?; 
 
 j^,, ■-;. .,;iV 
 

 782 REQULiE GENERALES AS TO PLEADINQ. [1*8. 21,23. 
 
 the preceding rule sliall not apply to tho case of such plea pleaded by 
 one or more only out of several defendants, (r) 
 
 SI4. (s) If a plaintiff in ejectment bo non-suited at the trial, fho 
 defendant sliall bo entitled to judgment for Lis costs of suit, (f) 
 
 ftS. (n) No pfitry of continuances by way of imparlance, curia adris- 
 art vult, vicecomes non miait breve, or otherwise, shiill bo made on any 
 record or roll whatever, or in the pleadings. («•) 
 
 (r) It 1ms boea held tlmt if ono of several ilcfendniits plead a ])lfiii of l)niil<- 
 ruptcy nt nisi prius, tho piiiiiitifT cannot confess such pluii and go to trial witli 
 tho other dofeiumnts : Pascall v. Ilordey el al, 3 C. A P. a72. But hnnl<nipt('yor 
 composition in tho caso of a solo defendant may be pleaded since tiiu lust pli'iul- 
 ing: SCO Barnetl v. The London and North Western Jiailwa;/ Co. 5 II. ct N. »)i)4 ; 
 The Slnffitrdshire Banking Co. (Limited) v. Eiiimott, L. R. 2 Kx. 208 ; Murgan et ■.il 
 V. fhrdin;/ et al, 11 W. R. 65 ; Brooks v. Jennings, L. 11. 1 C. P. •ITG ; Tctley el ul 
 V. Wanless, L. R. 2 Ex. 21 ; a. c. in error, lb, 275. 
 
 (») Taken from Eng. R. G. pi. No. 29 of T. T. 1853. 
 
 (C) If tho defendant appear, and tho claimant do not a^ipear at tho trial, tlio 
 claimant shall bo non-suited: Con. Stat. U. C. cap. 27, 8. 24. 
 
 (m) Taken from Eng. R. G, pi. No. 31 of T. T. 1853, the origin of which was 
 Eng. R. (\. No. 2 of H. T. 4 VVm. IV. Jervis N. R. 115, with which our oh' I'nle 
 Q. B. pi. No. 23 of E. T. 6 Vic. Cam. R. 29 corresponded. 
 
 (v") These forms, all of which have been long disused, may, as a matter of 
 curiosity, bo found upon reforenco to 2 Wms. Sauiid. 2 a, n. 
 
 i.t;f. 
 
 I- 
 
7:r:J 
 
 FORMS TO THE COMMON LAA7 rROCEDTTvE ACT. 
 
 f I 
 
 h'li 
 
 at the trial, tlio 
 
 y, n3 a mattur of 
 
 SCHEDULE A. 
 
 1. — Form of an hmic in general. 
 
 In the Q. B. (or C. P., as the case majt he.) 
 
 The^ day of , in the year of our Lurd 18 . (<late of Dcclaralion.) 
 
 {The Venue.) A. B., by P. A., his Attornoy [or in person, as the cn.^e mat/ 
 be), sues C. D., who has been summoned to answer the said A. B., by 
 virtue of a writ issued on the day of , in the year of our Lord 
 
 (the date of the first writ), out of Her Majesty's Court of Queen'n Bench {or 
 Common Pleas, as the case may he), for, &o. {copy the Declaration j'roin these 
 tcorJs to the e)id, and all the Pleadings tvith their dates, writing each I'lca or 
 Pleading in a separate paragraph, and numbering the same as in the Pleading 
 filed, and conclude thus) : Therefore let a Jury come, &c. 
 
 ■Special Case for the opinion of the Court, under See. 85, (a) tnhere the 
 allowance or disalloicance of a i)articular item or items depends on 
 a question oflaio. 
 
 In the Q. B. {or C. P.) 
 Between A. B. 
 
 CD.. 
 
 and 
 
 Plaintiff, 
 
 Defendant. 
 
 The following case is stated for the opinion of the Court under a rule of 
 Court {or order of the Hon. Mr. Justice ), dated the day of 
 
 18 , made pursuant to the eighty-fifth section of the Common Law Pro- 
 cedure Act, 185G, {here state the material facts of the case bearing upon tlie 
 question of law to be decided.) 
 
 The question {or questions) for the opinion of the Court is {or are) 
 
 First,— Ayhether, &c. 
 
 Second, — Whether, &o. 
 
 *•/) 
 
 _ M-tt^C 
 
 /'' 
 
 f 
 
 ii*}! 
 
 3. — Issue to be tried by a Jury where the Court or a Judge has directed it 
 under Sec. 85, (b) where the alloicance or disallowance of a parti- 
 cular item or items depends on a question of fact. 
 
 In the Q. B. {or C. P.) 
 
 The day of 18 , {date of Issue when delivered by the plaintiff.) 
 
 {Vcmie.) A. B., by his Attorney, sues C. D,, and the plaintiff {or defen- 
 dant) affirms, and the defendant {or plaintiff) denies, that, &t'., {here state 
 "^ question oj fact to be tried, as directed by the Court or a Judge. In some 
 cu.ses it may be advisable to state an inducement before stating the question in 
 dispute, if there be more than one question to be decided, state it tJnis) : and 
 
 (a) C. S. U. C. cap. 22, s. 159. (6) C. S. U. C. cap 22, s. 169, 
 
 ,! »' 
 
734 
 
 FORMS TO THE COMMON LAW PROCEDUREACT. 
 
 the said plaintiff {or defendant) also afiSrms, and the defendant (or plain- 
 tiff) also denies, that, &c. And it has been ordered by the Court {or by 
 the lion. Mr. Justice ) that the said question [or questions) shall be 
 
 tried by a Jury. Therefore let the same be tried accordingly. 
 
 4. — Special Case stated hy an ArMtrator under Sec. 8'^. [c) 
 
 (In tlic Special Case the Arbitrator must state whether the Arbitration is 
 under a compulsory reference under tJie Act, 0/ whether it is i'pon a reference 
 by consent of the parties lohere the submission has been or is to be .•lade a little 
 of one of the Courts. In the former case the Aicard must be entitled in ilie 
 Court and Cause, and the Rule of Court must be set forth. In the latter case 
 llij terms of the reference relating to the submission, being a little of Court, 
 must be set forth. ) 
 
 5. — Form of a ^Hsi Prius Record in ordinary cases. 
 {Tlie Nisi Prius Record ivill be a copy of the Issue, as delivered in the action.) 
 
 6. — Fo7'm of a Postea on a verdict for the plaintiff on all the issues, and 
 where the defendant appears at the trial. 
 
 Afterwards, on the day of A. D. , at , in the County 
 
 (or United Counties) of , before , one of the Justices of our 
 
 Lady the Queen, assigned to tako the Assizes in and for the within County 
 (or United Counties), come the parties within mentioned, by their respective 
 Attornies within mentioned ; and a Jury of the said County [or United 
 Counties) being summoned also come, who, being sworn to try the matters 
 in question between the said parties, upon their oaths say, that {state the 
 negative or affrmatice of the issue as it is found for the plainti/J: and in the 
 term's adopted by the pleading. If there be several issues Joined and tried, then 
 say), ns to the lirst issue joined, upon their oath say that, &c. {state the 
 affirmative or negative of the issue, as it is found for the plaintiff) ; and as to 
 the second issue within joined, the Jury aforesaid, Mpon their oath afore- 
 said, say, that, »fec. (so proceed to state the finding c/ the Jury upon all the 
 issues. Conclude by stating an assessment of the damages thits) : and they 
 assess the damages of the plaintiff on occasion of the premises within com- 
 plained of by him, over and above his costs of suit, at £, . Therefore, &c. 
 
 7. — Post a on the Issue nunibered 3, ante. 
 (TJie .,ame as in ordinary cases, except thai there is no assessment of damages.) 
 
 8. — Postea where a Judge, vpon a trial before him, directs a reference on 
 some oftlie issues, and of the accounts involved therein, and tales a 
 verdict on others oj the issues, referring the amount of damages 
 under Sec. 15G. {d) 
 
 Afterwards, on the day of 18_ , {the Commission day of the 
 
 Assizes,) at , in the County {or United Counties) of , at the 
 
 Assizes there bolden before the Hon. , one of Her Majesty's Justices 
 
 (c) C. S. U. C. cap. 22, s. 162. 
 
 {d) C. S. U. C. cap. 22, s. 160. 
 
CT. 
 
 ndant {or plain- 
 be Court (or by 
 jstion?) shall be 
 
 X. 8''). (c) 
 
 'he Arliirnfion is 
 ? ('i)on a reference 
 to be . 'lade a Rule 
 t he entUled in ili£ 
 In the latter case 
 a Hide of Court, 
 
 cases. 
 
 ■ered in Hie action.) 
 
 all the issues, and 
 al. 
 
 , in the County 
 he Justices of our 
 • the within County 
 , by their respective 
 County [or United 
 n to try the matters 
 
 say, that [state the 
 plaintilJ-. and in the 
 oined and tried, then 
 r that, &c. [state the 
 Mnti(f) ; and as to 
 )n their oath afore- 
 \e Jury upon all the 
 \es thus): and they 
 
 emises within com- 
 . Therefore, &c. 
 
 \nte. 
 
 essment of damages.) 
 
 Vrccts a reference on 
 
 \thercUi, and taVes a 
 
 imoiint of damages 
 
 [nniission day of the 
 L) of , at the 
 
 |jr Majesty's Justicea 
 
 cap. 22, 8. 160. 
 
 SCHEDULE A. 
 
 735 
 
 of the Court of for Upper Canada, come the parties within mentioned, 
 by their Attorneys within mentioned ; and a Jury of the said County (or 
 United Counties) being summoned, also come and are sworn to try the 
 matters in question between the said parties: and as to the plaintiff's 
 claim in the count of the Declaration within mentioned, it appears 
 
 to the said Jud<!;e that the questions arising thereon involve the investiga- 
 tion of lon^ accounts on the plaintiff's side ; and that the questions arising 
 on the defendant's plea that the plaintiff at the commencement of this suit 
 was and still is indebted to the defendant in an amount equal to [or 
 greater than, as the case may be) the plaintiff's claim within mentioned, 
 involve the investigation of long accounts on the defendant's side, which 
 cannot be conveniently tried before him. And hereupon the said Judge 
 orders and directs that a verdict be entered on each of the issues on tho 
 said count of the Declaration, in favor of the plaintiff, o . upon 
 
 the issue on tho plea to the said 
 
 count . that the a' 
 
 . cause 
 of action did not accrue within six years before this suit ; and wiat such 
 verdict shall be subject to, and that the matters in difference between the 
 said parties on the said count (except as to the said last mentioned 
 plea) be referred to the award of upon the terms that (set forth the 
 
 terms of the order) ; and as to the said plea so excepted, the Jurors 
 
 aforesaid upon their oath say, that the alleged cause of action in the 
 said count did accrue within six years next before this suit. And as 
 to the plaintiff's claim in the count [or counts) within mentioned, the 
 Jurors aforesaid upon their oath say, that the defendant did not promise 
 as alleged. Tliererore, &o. [This is only given as a general guide, and must 
 be varied according to the pleadings, terms of rcferciice, and circumstances of 
 each case) 
 
 9. — Form of Judgment for Plaintiff on a Verdict. 
 
 [Copy the Kisi Priiis Record, and then proceed thus): Afterwards, on 
 the day of , in the year of our Lord , [day of signing final 
 
 Judgment,) come the parties aforesaid, by their respective Attorneys afore- 
 said [or as the case may be), and the Il^n. Mr. Justice , assigncil to 
 take the Ai-sizes in and for the said County (or United Counties), before 
 whom the said issue was [or issues were) tried, hath sent hither his record, 
 had before him, in these words, &c. (copy the postea). Therefore it is con- 
 sidered, that the plaintiff do recover against the defendant the said moneys 
 by the Jurors aforesaid in form aforesaid assessed [or if the action be in 
 debt; and the Jury do not assess the debt, but only the damages, then say, do 
 recover against the defendant the said debt of jG , and the moneys by 
 the Jurors aforesaid in form aforesaid asFessed) ; and also £ , for his 
 costs of suit, by the Court here adjudged, of increase to the plaintiff; 
 which said moneys and costs [or debt, damages and costs) in tho whole 
 amount to £ . [In the margin of the roll, opposite the words " therefore 
 it is considered," write Judgment signed the day of , A. D. , 
 stating the day of signing the Judgment.) 
 
 10. — Form of Postea, on a verdict finding a balance in fator of a Defen- 
 dant, on a plea of Set-off, and on other pleas. 
 
 Afierwards, on tho day of , A. D. [the Commission day of 
 
 the Assizes), before the lion. , one of the Justices assigned to take 
 
 the Assizes in and for the within County [or United Counties), come the 
 
 il'i ■''ill 
 
 \u 
 
 V''\ 
 
 
736 
 
 rORMS TO TUB COMMON LAW PROCfiDUttE ACT. 
 
 1 ) ^i^fl 
 
 partioa within mentioned, by their respective Attorneys within mentioned ; 
 and a Jury of the said County {or United Counties) being summoned, also 
 come, who, being sworn to try the matters in question between the said 
 parties, upon their oath say {if non-assumpsit toas the first plea), as to the 
 first issue within joined, that the defendant did not promise as within 
 alleged {or if the first plea was, that he never loas indebted, say tliat the 
 defendant never was indebted, as within alleged). And as to tho second 
 issue within joined, the Jurors aforesaid, upon their oath aforesnid, say 
 that the plaintiff was and is indebted to the defendant, as within alle<;ed, 
 in an amount greater than the plaintiff's claim in the declaration within 
 alleged ; and they further say, that the bal^ince due from the plaintiff to 
 the defendant, upon the matters contained in the said declaration and the 
 said second plea, amounts to £> . Therefore, &o. 
 
 L^ 
 
 11. — Form of Judgment for Defendant thereon. 
 
 {Proceed in the usual form to the end of the Postea, and then thus) : There- 
 fore it is considered that the plaintiff do take nothing by his said writ, 
 but that the defendant do recover against the plaintiff the sum of £ , 
 in form aforesaid, found to be due from the plaintiff to the defendant, 
 together with £> for his costs of defence, — amounting in the whole 
 to <£ . 
 
 {In the margin of the roll, opposite the tcords " therefore it is considered," 
 IP) i7e Judgment signed the day of , A. D. ). 
 
 
 U3 S 
 
 
 12. — Fo7'm of Judgment on a Special Case stated ly an Arbitrator, 
 
 {vide ante jVo. 4). 
 
 {Copy the special case, and then proceed thus): Afterwards, on tiio 
 day of , 18 , come here the parties aforesaid, and the Court is of 
 
 opinion that {state the opinion of the Court on the question or questions stated 
 in the case, in the affirtnative or negative as the case may be). Therefore it is 
 considered that the plaintiff do recover against the defendant the said 
 £> , and £ for his costs of suit. 
 
 {In the margin, opposite the words *' therefore it is considered," d-c, write 
 Judgment signed the day of 18 , inserting the day of signing 
 
 final Judgment. ) 
 
 1* ' ■ 
 
 
 ,r? 
 
 
 1 
 
 Wi. 'r 
 
 ( 
 
 13. — Form of an Issue when it is directed to ie tried ly the Judge of the 
 
 County Court. 
 
 {Commence the issue as in Form No. 1, above prescribed, then copy all the 
 pleadings, and after the joinder of issue proceed as follows) : And forasmuch 
 as the sum sought to be recovered, and endorsed on the copy of the ori;;;inal 
 process served, does not exceed £> , {or and forasmuch as the debt or 
 demand sought to be recovered is alleged to be ascertained by the signaturfi 
 of the defendant,) hereupon on the day of , in the year 18 , 
 
 {date of the Writ of Trial,) pursuant to the statute, the Judge of the County 
 Court for the County {or United Counties) of is commanded that he 
 
 proceed to try such issue {or issues) at the first {or second) sittings to be 
 next hereafter holden of the said County Court, by a Jury returned for the 
 trial of Issues joined in the said Court ; and when the same shall have 
 been tried, that ho make known to the Court here what shall have been 
 
)T. 
 
 n mentioned ; 
 inmoned, also 
 reen the said 
 )Iea), as to the 
 ise as within 
 say that the 
 to tho second 
 aforcsuid, say 
 irithin alleged, 
 aration within 
 the plaintiff to 
 iration and the 
 
 on. 
 
 n llius) : There- 
 y his said writ, 
 B sum of £> , 
 , the defendant, 
 ig in the whole 
 
 t is considered," 
 
 an Arhitrator, 
 
 ■ards, on tho 
 
 the Court is of 
 
 r questions stated 
 
 Therefore it is 
 
 [fendant the said 
 
 dered," d'c., lorite 
 \e day of signing 
 
 the Judge of the 
 
 \, then copy all ik 
 : And forasmuch 
 ppy of the original 
 fch as the debt or 
 k by the signaturfi 
 In the year 18 , 
 [dge of the County 
 [ramanded that he 
 Ind) sittings to be 
 \y returned for the 
 I same shall have 
 It shall have been 
 
 SCHEDULE A. 
 
 737 
 
 done by virtue of the writ of our Lady the Queen, to him in that behalf 
 directed, with the finding of the Jury thereon endorsed, within ten days 
 after the execution thereof. 
 
 U.— Form of the Writ of Trial 
 
 Victoria, by the Grace of God, of the United Kingdom of -^reat Britain 
 
 and Ireland, Queen, Defender of the Faith. 
 To the Judge of the County Court of : 
 
 Whereas A. B., plaintiff in our Court of Queen's Bench {or Common 
 Pleas) in and for Upper Canada, at Toronto, on the day of , 18 , 
 
 (the date of the summons or other first process,) impleaded C. D in an aation 
 for, &o. {here recite the Declaration in the past tense.) And whereas the 
 defendant, on the day of last {date of the plea), by his Attorney 
 
 {or as the case may be), came into our said Court and said {here recite the 
 pleas and pleadings to the joinder of issue). And whereas the sum sought 
 to be recovered in tho said action, and endorsed on the writ of summons 
 {or as the case may be) thereon, does not exceed £ . {Or) And whereas 
 tho debt or demand sought to be recovered in this action is alleged to be 
 ascertained by the signature of the defendant, and it is fitting tha*- the 
 issue {or issues) should be tried before yoa the said Judge : We, therefore, 
 pursuant to the statute in such cases made and provided, command you 
 that you do proceed to try the said issue {or issues) at the first {or second) 
 sittings of the said County Court, to be holden next after the date of this 
 our writ, by a Jury returned for the trial at the said sittings of Issues 
 joined in the said County Court: and when the same shall have been 
 tried in manner aforesaid. Wo command you that you make known to our 
 Justices of our said Court of Queen's Bench {or Common Pleas), at Toronto, 
 what shall have been done by virtue of this writ with the finding of the 
 Jury, hereon endorsed, within ten days after the execution hereof. 
 
 Witness, &o. 
 
 15. — Form of Endorsement of the Verdict on the Writ of Trial. 
 
 Afterwards, on the day of i 18 , {the day of trial,) before 
 
 me. Esquire, Judge of the County Court within mentioned, came as 
 
 well the within named plaintiff as tho within named defendant, by their 
 respective Attorneys within named {or as the case may be), and the jurors 
 of tho Jury whereof mention is within made being summoned also came, 
 and being duly sworn to try the issue {or issues), on their oath said that, 
 kj. {state the fi,nding of the )ury as on a posted on a trial at Nisi Prius.) 
 
 16.-^The like in case a JSi'onsuit takes place. 
 
 {Proceed as in the above Form, but after the]words " duly sworn to try the 
 issue within mentioned," proceed as follows) : and were ready to give their 
 verdict in that behalf; but the plaintiff being solemnly called, came not, 
 nor did he further prosecute his suit against the defendant. 
 
 17. — Form of Judgment for Plaintiff, after Verdict on Writ of Trial. 
 
 {Copy the Issue, and then proceed as follows) : Afterwards, on the day 
 of , 18 , {day of signing final Judgment) come the parties aforesaid, 
 
 by their respective Attorneys aforesaid {or as the case may be) ; and the 
 47 
 
 '*: 
 
 .'I 
 s. 
 
 1^ 
 
 M 
 
(38 
 
 FORMS TO THE COMMON LAW PROCEDURE ACT. 
 
 4^ . 
 
 said Judge, before whom the said issue (or issues) came on to be trieof, 
 hath sent hither the said last mentioned writ, with an endorscinent 
 thereon, which said endorsement is in these words, to wit: (copy iJie 
 endorsement) Therefore it is considered, &c. {conclude as in other ca-ia. 
 See (he Form Supra No. 9.) 
 
 IS. — Form of Entry after Judgment ly Default or on Demurrer, where 
 the Damages are to he assessed before a Judge of a County Court. 
 
 ( Copy the pleadimjs commencing the Issue, as in Form No. 1, aiid proceed) 
 and the defendant, in his proper person (or by , his Attorney), saya 
 
 nothing in bar or preclusion of the said action of the plaintiflP, whereby the 
 plaintiff remains therein undefended against the defendant (or copy to the 
 end of the Demurrer book, and then proceed) : and hereupon, on the day 
 of , 18 , (the day of giving judgment on the demurrer,) came he. 3 as 
 
 well the plaintiff as the defendant, by their respective Attorneys aforesaid ; 
 and it appears to the Court here that the declaration (or replication) is good 
 in substance (or that the plea aforesaid is bad in substance). Wherefore 
 the plaintiff ought to recover against the defendant his damages on occasion 
 of the premises above complained of by him. But because it is unknown 
 to the Court here what damages the plaintiff hath sustained on occasion of 
 the premises, hereupon, on the day of , 18 , (date of writ of 
 
 inquiry,) the Judge of the County Court of the County (or United Counties) 
 of is commanded that he diligently enquire what damages the plain- 
 
 tiff hath sustained by reason of the premises, at the first (or second) sittings 
 to be next hereafter holden of the said County Court by a Jury returned at 
 such sittings ; and that he make known to the Court here what shall have 
 been done by virtue of the writ of our Lady the Queen to him in that 
 behalf directed, within ten days after the execution thereof. 
 
 19. — Form of Writ of Inquiry. 
 Victoria, &o. (as in Form No. 14.) 
 To the Judge, &c. (as before.) 
 
 Whereas, &■). (as in Form No. 14, setting out to the end of the Declaration, 
 and proceeding as in Form No. 16, according as it is on Judgment by default 
 or judgment on demurrer, and proceed). But because it is unknown to the 
 said Court hero what damages the plaintiff hath sustained by reason 
 thereof, and it is fitting the same should be enquired of by you the said 
 Judge, We, therefore, pursuant to the statute in such case made and pro- 
 vided, command you that you do diligently enquire what damages the said 
 plaintiff hath sustained by reason of the premises, at the first {or second) 
 sitting!) to be next hereafter holden of the said County Court, by a Jury 
 returned at such sittings for the trial of Issues joined in such Court. And 
 we further command you that you mak? known to our Justices of our said 
 Court of Queen's Bench (or Common Pleas), at Toronto, what shall have 
 been done by virtue of this Writ with the finding of the Jury hereon 
 endorsed, within tea days next after the execution hereof. 
 
 Witness, &c. 
 
 20. — Form of Return to lo endorsed. 
 
 Afterwards, on the day of , 18 , (day of Assessment) before 
 
 me, t Csquire, Judge of the County Court within mentioned, came 
 
r.'.n 
 
 SCnEDULE A. 
 
 739 
 
 ,n to be tried, 
 
 endorsement 
 
 fit: {copy the 
 
 in other cases. 
 
 imirrer, wliere 
 nty Court. 
 
 1, and proceed) 
 &.ttorney), saya 
 iff, whereby the 
 it {or c(pil to the. 
 , on the d'.vy 
 •,) came he. 3 as 
 rneys aforesaid ; 
 dication) is ROod 
 ee). Wherefore 
 lages on occasion 
 36 it is unknown 
 ed on occasion of 
 
 {date of writ of 
 United Counties) 
 imaRca the plain- 
 ),• second) sittinss 
 
 Jury returned at 
 e what shall have 
 n to liim in ^'^^''^ 
 
 of. 
 
 of the Declaration, 
 idcjment by default 
 s unknown to the 
 tained by reason 
 • by you the said 
 vse made and pro- 
 damages the said 
 le first (or second) 
 Court, by a Jury 
 such Court. And 
 ustices of our said 
 what shall have 
 the Jury hereon 
 
 )f. 
 
 the within named plaintiff by his Atiorney within named, and the jurors 
 of the Jury whereof mention is within made, being summoned, also came 
 and being duly sworn to assess the damages sustained by the plaintiff by 
 reason of tlie premises within mentioned, say on their oath, that the plain- 
 tiff hath sustained damages on occasion thereof over and above his costs 
 and charges by him about his suit in that behalf expended to £ 
 
 21. — Form of Judgment tltereon. 
 
 Afterwards, &c. (a.s in Form No. 15), came the plaintiff by his Attorney 
 aforesaid, and the said Judge before whom the said damages were assossod, 
 hath sent hither the said last mentioned writ, with an endorsement thereon, 
 in these words, to wit {cop// the Endorsement). Therefore it is considered, 
 -ic. {conclude as in other cases). 
 
 Assessment) before 
 mentioned, came 
 
 22. — Form of Issue, where there are Issues in fact to he iried, as well ns 
 damages to he assessed on default^ or on issues in law before the 
 County Court. 
 
 {Commence as in No. 1, copying the pleadings, the Joinder ofLsue, adding 
 the similiter, and inserting the Joinder of Issue to be tried by the record or the 
 judgment by default as to part of the pleadings, or the Judgment by the plain- 
 tiff on demurrer, as the case may be, and if there be Judgment by default, or 
 judgment fur plaintiff on a trial by the record or upon demurrer, iwoceed thus.) 
 Wherefore the plaintiff ought to recover against the defendant his damages 
 on occasion of the premises, &c. And because it is at present unknown to 
 the Court here whether the defendant will be convicted of the premises 
 upon which issue is above joined between the parties or not, and because 
 it is also unknown to the Court here what damages the plaintiff hath 
 sustained on occasion of the premises, wheroof it is considered that the 
 plaintiff ought to recover his damages as aforesaid, and it is convenient 
 and necessary that there be but one taxation of damages in this suit, there- 
 fore let the giving of judgment in this behalf against the said defendant 
 be stayed until the trial of the said Issue {or Issues) above joined between 
 the said parties be tried by the Country {or if Judgment on demurrer, or on 
 the trial by the record has not been given — then after the entry of the Joinder 
 of issue in fact and the demurrer or on the trial by the record — proceed.) And 
 because the Court here are not yet advised what judgment to give upon 
 the premises whereof the parties have put themselves upon the judgment 
 of the Court (or as the case may be). And because the Court hero are not 
 advised what judgment to give upon the premises whereon issue is joined 
 between the said parties to be tried by the record. And because it is c;in- 
 venieiit and necessary that there be but one taxation of damages in this 
 suit, and forasmuch as the sum sought to be recovered and endorse 1 on 
 the copy of the original process served, does not exceed £, , {or foras- 
 much as the debt or demand sought to be recovered is alleged to bo ascer- 
 tained by the signature of the defendant,) hereupon on the day of 
 18 , {date of the Writ of Trial and enquiry) the Judge of the County Court 
 of the County {or United Counties) of is commanded that ho proceed, 
 
 as well to try the issue {or issues) joined between the parties to be tried 
 by the Country, as also, diligently to enquire what damages the said plaintiff 
 hath sustained on occasion of the premises whereof it is considered that 
 the plaintiff ought to recover against the defendant oa occasion thereof ar 
 
 I-'"- 
 
 v- 
 
 
740 
 
 FORMS TO THE COMMON LAW PROCEnCJRE ACT. 
 
 
 nforoaaid, {or according to the facts the premises whereof the parties have 
 put themselves upon the judgment of the Court as aforesaid, or the premises 
 vrberein issue is joined between the parties to be tried by the Reconl, if 
 judgment shall happen to be thereupon given for the plaintiff) at the firijt 
 (or second sittings) to be next hereafter holden of the said County Court, 
 by a Jury returned at such sittings for the trial of issues joined in the suid 
 Court, and that he make known to the Court here what shall have been 
 done by virtue of the Writ of our Lady the Queen to him in that behalf 
 directed, with the finding of the Jury thereon endorsed, within ten days 
 next after the execution thereof. 
 
 23. — Form of Writ of Enquiry to try the issues and assess damages contin- 
 gently on demurrer or issue by the record or where there isjiuhjmerd 
 by default or on demurrer as to i^art. 
 
 ( Commence the Writ as in number 17, setting out the pleadings, Joinder in 
 issue, t&c, as the case may be, and according to the suitable form given in 
 number 20, and then proceed.) We, therefore, pursuant to the statute in 
 such case made and provided, command you that you do proceed to try 
 the issue (or issues) joined between the parties, to be tried by the Country, 
 and also diligently enquire what damages the plaintiff hath sustained by 
 occasion of the premises, whereof :» is co.sidered that the plaintiff ought 
 to recover against the defendant his damages on occasion thereof as afore- 
 said {or the premises whereof the parties have put themselves upi>n the 
 judgment of the Court as aforesaid or the premises whereon issue is joined 
 between the parties to be tried by the record as aforesaid, as the case may 
 be) if judgment shall happen to be thereupon given for the plaintiff, at 
 the first (or second) sittings to be ntyt hereafter holden of the said County 
 Court by a jury returned at such sittings for the trial of issues joined in 
 the said County Court — and that you make known to us in our said 
 Court of Queen's Bench {or Common Pleas) at Toronto, what shall have 
 been done by virtue of this Writ with the finding of the jury hereupon 
 endorsed, within ten days after the execution hereof. Witness, «&c. 
 
 24. — Form of Endorsement of Verdict thereon. 
 
 Afterwards, on the day of ,18 , {day of the Trial, dx.) hdnx^ 
 
 me, , Esquire, Judge of the County Court of the County {or United 
 
 Counties) within mentioned, came as well the within named parties by 
 their respective Attorneys within named {or othenoise, as the case may he], 
 and the jurors of the Jury, whereof mention is within made, being 
 summoned also come and being duly sworn to try the issue {or issuci<), 
 and also to assess the damages sustained by the plaintiff on occasion of 
 the premises within mentioned, on their oath, said (&c., according /<> ih 
 finding of the Jury on the issues, and if for the plaintiff, proceed), and the 
 said jurors upon their oath aforesaid said that the plaintiff hath sustained 
 damages on occasion thereof, and on occasion of the other premises within 
 mentioned, ovcr and above his costs and charges by him about his suit in 
 this behalf expended, to J& 
 
 25. — Form of Nonsuit thereon. 
 
 {Proceed as inform Ko. 24, to tJie statement that the Jury were sworn, tfc— 
 qfier the end qf which statement, proceed as follows) — were ready to give their 
 
SCBEDJLE A. 
 
 741 
 
 verdict in that belialf, but tlio pljuntiff, being solemnly called, came not, 
 nor did he further proijecute bis £>aid suit ugainst the defendant. 
 
 26. — Form of Judgment thereon. 
 {This will be mutatis mutandis, according to the diredions given in No. 21.) 
 
 27. — Form of Entry of Judgment, where the Court or n Judge decides in 
 a summary manner, under section 84, {a) before declaration. 
 
 In the Queen's Bench (or Common Pleas; 
 Upper Canada, ] The day of , 18 , (the day on which Judgment 
 
 to wit, J is signed) A. B. in hifi own person {or hy liis 
 
 Attorney,) on the day of , 18 , sued out a Writ of Summons 
 
 aiTiiinst C. D., and tho said C. D., on the day of , 18 , by his 
 
 Att:irriey {or in person) caused an appearance to be entered for iiim to the 
 said Writ {or and tlie said C. D. did not cause an appearance to be entered 
 for liiin pursuant to the esi>]^eriey "f the said Writ) and afterwards by a 
 rule (if the said Court of Queen's Bencdi (or Common Pleas) {or by an order 
 of tho Honorable one of the Justices of tho Court of ), dated 
 
 tlio day of ,18 , made iu pursuance of the eighty-fourth section 
 
 of tho Common Law Procedure Act, 185G. It was ordered tlint the said 
 C. D. should pay to the said A. B. the sum of £ {setting out the terms or 
 suhdance of the rule or order, and if costs itcre ordered, proceeding thus) toge- 
 ther with tlie costs of the said A. B., by him expended in and about tho said 
 Writ and the proceedings thereupon. And now on the day of , 
 
 18 , {tlic day of signing Judgment) it is manifestly shown that tho said 
 C. D. liath not paid the said sum of .G , and the said costs, therefore it 
 is considered that the said A. B. do recover against the said C. D. tho said 
 sum of cC so ordered to bo paid as aforesaid, and also £ for his costs 
 of suit by tho Court here adjudged to tho said A. B., wliich said moneys 
 and costs in tho wliole amount to £ , {in the mar:/iu <f the rule opposite 
 the ivords " therefore it is considered " icrile "judgment signed tho day 
 of , A. D. ," stating the day (f signing Judgment). 
 
 28. — The like, where the case is referred to an Arbitrator. 
 
 ( Proceed as in foregoing form, Xo. 27, doivn to the v}ords " It was ordered," 
 and then proceed as follows) — It was ordered that the claim of the plaintifl' 
 be referred to (^stating the name of the referee, and the suhntance of the rule or 
 order of reference) — And afterwards tlio said {n-feree) by his award {or 
 certificate) did award {or certify) that there was due and payable from the 
 Haid C. D. to the said A. B. the sum of £ and now on this day 
 of , 18 , {the day of signing Jtulgmmt) it is manifestly shown that 
 
 t!io said C. D, huth not paid the said sum of £ . Therefore it is con- 
 sidered that the sai 1 A. B. do recover iigainst tho said C. D. the said sum 
 of jC , {the amount awarded or cert i lied; and i J' coats were given by the 
 rule or order or iccre directed to abide the event if the refoence, and also £ 
 fur his costs. Conclude as in the joecedingfonn Xo. 27). 
 
 ( These two Forms Xos. 27 and 28 may be so altered and modeled as to suit 
 dhcr cases arising under section 8-1,) (6) 
 
 ^l'?h 
 
 (a) C. S. U.C. cap. 22, s. 158. 
 
 {b) C. S. U. C. cap. 22, 8. 158. 
 
742 
 
 FORMS TO THE COMMON LAW PROCEDUEE ACT. 
 
 i 
 
 WRITS OF EXECUTION. 
 
 29. — Fieri Facias on a Judgment for Plaintiff in cin,vimpnit. 
 
 Victoria, by the Grace of God, of the United Kinj^cTorn of Great Hritain 
 and Irehmd, Queen, Defender of the Faith. 
 
 To the Sheriff of , Greeting. 
 
 We command you that of tlio goods and chattels in your Bailiwick 
 of , you cause to be made £, , which hitely in our Court ot 
 
 Queen's Bench {or Common Pleas) beforo the Justices of our said Court at 
 Toronto, recovered aj>ainst for damages which had sustnined, 
 
 as well by reason of tiio not performing certain promises and undortnkin^s 
 then lately made by the said to the said as for costs and chargce 
 
 by about suit in that behalf expended, wliereof the said 
 
 is convicted as appears of record, and have that money before our Justices 
 aforesaid at Toronto immediately after the execution hereof to be rendered 
 to the said , and in what manner you shall have executed tiiis our 
 
 Writ make appear to our Justices aforesaid at Toronto immediately afior 
 the execution hereof, and have you tiiero then this Writ. 
 
 Witness at Toronto, the day of , in the year of our Lord, 13 . 
 
 dO.—T7ie UleinBeU. 
 
 {Coimncnce as in No, 29, and proceed down to "cause to be made," ilien 
 proceed as fullotos,) as well a certain debt of £ , which lately in 
 
 our Court of Queen's Bench {or Common Pleas) before the Justices of our 
 said Court at Toronto recovered against , as also {if the Jiul;jnii:nt be 
 
 in that form) for damages which had sustained, as well by oix-iision 
 of he detaining of that debt as for his costs and charges, &c. (cunclude as 
 in ihe forci/oing form, which may he varied to suit cases in tr€S2)ass and other 
 kinds of action, except fjcctmeni.) 
 
 .31. — The nice against Lands. 
 Victoria, &c. 
 
 To the Sheriff, &c. 
 
 We command you that of the lands and tenements of , in your 
 
 Bailiwick, you cause to be made, &c., {as hfore) and have that money 
 before our Justices aforesaid at Toronto immediately after the expiratiua 
 of twelve months from the day of your receipt hereof, and in vt'hat manner, 
 &c. ((ts hifore to the end,) 
 
 82. — Fieri Fiicias on a rule for payment of money under a pidgment in- 
 
 Form Xo. 27. 
 Victoria, &c. 
 
 To the Sheriff, &c. 
 
 We command you that of the goods "and chattels of C. D, in your 
 Bailiwick, you cause to be made £> which lately in our Court of 
 
 Queen's Bench {or Common Pleas) by a rule of our said Court {or by an 
 onler of the Honorable , one of the Justices of our Court of .) 
 
 drted the day of , 18 , were ordered to be paid by the said C. D. 
 
 to A. B,,* as appears of record, and have that money before our Justices af 
 our said Court of at Toronto immediately after the execution hereof^. 
 
our Lord, 13 
 
 ;?■ a jii'lgmcnt in- 
 
 SCHEDULE A. 
 
 143 
 
 and in what manner you shall have exocutoJ this our Writ, malco appear 
 to our Justices aforesaid at Toronto immediately after the oxecutiou hereof, 
 and have you there then this Writ. 
 Witness, &c. 
 
 33. — Fieri Facias on a rule for pfii/ment of Money and Costs. 
 
 Victoria, &c., (as in form No. 32 down to the)* together with certain 
 costs in the said rule mentioned, which said costs have been taxed and 
 allowed by our said Court at £ , and have those moneys before, &i;. 
 [concluding as in preceding form No. o2.) 
 
 Qi.— 'Fieri Facias on a rule for payment of costs only. 
 
 Victoria, &c., (same as inform No. 32, to "made £ ,") for certain 
 costs which by a rule of our Court of Queen's Bench (or Common I'loas) 
 dated the day of , 18 , were ordered to be paid by the said C. D. 
 
 to A. B., which said costs have been taxed and allowed by our said Court 
 at the said sum as appears of record, and have that money before, &c. 
 {concluding as in preceding form No. 32.) 
 
 35. — Writ of capias ad satisfaciendum on a Judgment for Plaintiff. 
 
 To the Sheriff of, &c. 
 
 We command you that you take C. D., if he shall be found in your 
 .Bailiwick, and him safely keep so that you may have his body before our 
 Justices of our Court of Queen's Bench {or Common Pleas) at Toronto 
 immediately after the execution hereof, to satisfy £ ,* ( the amount of' 
 all moneys recovered by the judgment) which the said A. B . lately in our 
 Court of Qiioon's Bench (or Common Pleas) recovered a^ijainst t,ho said 
 C. D., for his dama;;;es (or del)t and damages, or otitei'wise according to the 
 form of action) whereof the said C. D. is convicted, as appears to us of 
 record, and have you then there this Writ-. 
 
 Witness, &c., (as in preceding form No. 3:1.) 
 
 30. — Writ of capias ad saiisfaciendum on a rule for payment of money. 
 
 Victoria, &c., {same as inform No. 35, to the*) which lately in our 
 Court of Queen's Bench [or Common Pleas) by a rule of our said Court 
 (or by an order of the Honorable , one of the Justices of our Court 
 
 of ,) dated the day of , 18 , were ordered to be paid by the 
 
 said C. D. to A. B., as appears to us of record, and have you then there 
 this AVrit. 
 
 Witness, &c. 
 
 J7. — Writ of capias ad satisfaciendum on a rule for payment of money 
 
 and costs. 
 
 V'ictoria, &c., (same as No 3G, down to the icords "were orderel,") were 
 ordered to be paid by the said C. D, to the said A. B., together witii certain 
 costs in the said rule mentioned, which said costs have been taxed and 
 allowed by our said Court at £ , {the amount of the allocatur or allocaturs. 
 
 % -''I'l 
 
 ■"■ a 
 
 r :t i 
 
 :i 
 
744 
 
 FORMS TO THE C0M5I0N LAW PROOEDUUE ACT. 
 
 Ill ^-'i 
 
 iii 
 
 m • 
 
 7 
 
 n3 -^ 'i' 
 
 ifninre than one,) as appears to ua of record, and further to satisfy tho said 
 A. li. tho said last meotionod sum, and have you then there this Writ. 
 Witness, &o. 
 
 38. — Writ of capias ad satisfaciendum on a rule for the 2}(ty>nent of 
 
 costs only. 
 
 Victoria, &c., {same as in No. 35, doion to the word "immediately," 
 immediately after tho execution hereof, to satisfy A. B. £ for certain 
 coatH, which, by a rule of our Court of Queen's Bench (or Common Plciis 
 Of by an order of the Honorable , one of tho Justices of our Cuurt 
 
 of ), dated the day of , 18 , were ordered to be paid by 
 
 the said C. D. to the said A. B., which said costs have been tnxod and 
 allowed by our said Court at tho said sum, as appears to us of record, and 
 have you there then this Writ. 
 
 Witness, &c. 
 
 89. — Writs of execution, where the Court or a Judge decides on matters of 
 account, under section 8-t. (a) 
 
 ct 
 
 {All these may be framed upon the forms already given, vide forms No. 32, 
 scq. to No, 38, inclusive.) 
 
 40. — Writs of execution where matter of account is referred to and decided 
 on hy an Arhitrator, Officer of the Court, or Jtidge of the County 
 Court. 
 
 {'I7ie same as directed in the next preceding form, hut instead of stating the 
 levy to be of money oi'dered by a rule or order to he paid, say) £ , wiiich 
 by an award (or certificate) dated the day of , 18 , {date ofaicard' 
 or certificate) made by E. F., an arbitrator appointed by the parties, or by 
 E. F., Clerk of the Crown and Pleas {or other officer, naming his office), of 
 our Court of or by E. F., Esquire, the Judge of tho County Court 
 
 of , {or otherivise, as the case may be) was awarded (or certified) to be 
 
 due and payable from the said C. D. to A. B. as appears to us of record, 
 and have jou there then this Writ. 
 
 Witness, &c. 
 
 41. — Writ of habere facias in ejectment, upon a Judgment by default. 
 
 Victoria, &q. 
 
 To the Sheriff of, &o. _ 
 
 Whereas A. B., lately in our Court of Queen's Bench (or Common Pleas) 
 by the judgment of the said Court recovered possession of , {describe 
 
 the property as in the Writ of ejectment, or if part only of the land has been 
 recovered, describe such part as in the judgment) with the appurtenances in 
 your Bailiwick. Therefore we command you that without delay you cause 
 the said A. B. to have possession of the said land and premises, with the 
 appurtenances, and in what manner, &c. (as inform No. 29.) 
 
 42 
 
 Writ of habere facias and fieri facias for costs upon ajudgmeiitfor 
 Plaintiff in ejectment where defendant has aiJjyeared. 
 
 Victoria, &c. Whereas A. B., lately in our Court of Queen's Bench (or 
 Common Pleas) recovered possession of {describe the property as in the Writ 
 
 (a) C.S. U. C. cap. 22, s. loS. 
 
■ ' I. I 
 
 SCIIBDULE A. 
 
 :45 
 
 liciymcnt oj 
 
 of ejectment, or if part onhj of the land has been recovered, deserllin mrh part 
 as in the judgment), with the iippurtonances \n your IJniliwiok, in an 
 action of ejectment at the suit of tlie Muid A. IJ. a^^iiinst C. D. Therefore 
 wc command you thiit without delay you cause the said A. B. to have 
 possession of the said land and premises, with the appurtenances — and wo 
 also command you that of the goods and chattels of the said 0. I), in your 
 Bailiwick, you cause to be made £, , which the said A. B., lately in our 
 said Court, recovered aj^ainst the said C. i),, for the said A. B.'s costs of 
 the said suit, whereof the said C, D. is convicted, and have that money in 
 our said Court imaietliately after the execution hereof, to be rendered to 
 the said A. B., and in what manner, &c. («s inform, Nu. 2'J.) 
 
 40. — Writ of fieri facias for costs only on a jndijment for I'luintijf in 
 ejectment where dej'endant has ajipearcd, 
 
 Victoria, &c. (as inform No. 20, down to iiic word " recovered,") recovered 
 against him for the said A. B.'s costs in an action of ejectment hrouj^ht by 
 the said A. B. an;ainst the said C. D. in that Court whereof the saiil C. D. 
 is convicted, and have that money, &c. {as in the next prccedinj form to 
 the end.) 
 
 44. — Writ ofhaljcrc facias possessionem on a rale to deliver possession of 
 
 land pursuant to an award under section OG. (a) 
 Victoria, &c. 
 
 To the Sheriff of, &c. 
 
 We command you that without delay you cause A. B, to have possession 
 of {here describe the lands and tenements as in the rule for the delicery of 
 possession), and of which lands and tenements by a rule of our Court of 
 Queen's Bench {or Common Pleas) dated the day of , 18 , made 
 
 pursuant to the 90th {!>) section of the Common Law Procedure Act, 1850, 
 E. F. (r/te party named in the inde) was ordered to deliver possession to the 
 said A. B., and in what manner you have executed this our said Writ, 
 make appear to our said Court at Toronto immediately after the execution 
 hereof, and have you there ^then this Writ. 
 
 Witness, &c. 
 
 45. — Fi. Fa. against a garnishee tinder the 19C<A (c) section when the debt 
 
 is not disputed or garnishee does not aj^pear. 
 Victoria, &c. 
 
 To the Sheriff, &c. 
 
 Wo command you that of the goods and chattels of E. F. in your 
 Bailiwick you cause to be levied £ , beinj; the amount of {or part of 
 the amount of. If the debt be more than the judgment dibt) ii debt duo from 
 the said E. F. to C. D. heretofore attached in the hanus ji the said Yj. F. 
 by an order of the Honorable , one of the Justices of our Court of 
 
 Queen's Bench {or Common Pleas) dated the day of , 18 , pursuant 
 to the statute made in such case, to satisfy {or if Ih", debt be less than the 
 judgment debt) towards satisfying & , which A. B. lately in our Court 
 of Queen's Bench {or Common Pleas) recovered against the said C. D., 
 
 (•'0 C. S. U. C. cap. 22, 8. 174. (i) C. S. U. C. c. 22, s. 1T4 
 
 (c) C. S. J. C. c. 22, 8. 290. 
 
 Ill 
 
 (■ • , r 
 
 I ■ 
 
 ,] -Is 
 
740 
 
 FORMS TO THE COMMON LAW PaOCEDURE ACT. 
 
 
 V 't 
 
 vrhereof tlio snid C. 1>. ie convifitod, nn appears to ua of rocord, and tha 
 you liavo that sum of jC boforo our Hiiid Court iininfidiatoly nfror the 
 execution hereof to bo rendered to the said A. B. and ia what manner, &,a. 
 (concluding as in form No. 29.) 
 
 40. — Ca Sii in the like case. 
 Victoria, &o. 
 
 To the Sheriff, &o. 
 
 Wo CDnun mil you that you take E. P. if he bo found in your B liliwiok , 
 and him safely keep so that you may have his body before our Justices of 
 our Court of at Toronto, immediately after the execution hereof, to 
 
 satisfy A. B., £> being the amount (or part of the amount if tlin dtbt be 
 vioic than the judgment debt) of a debt due from the said K. F. to 0. I), here- 
 tofore attached in the hands of the said E, P. by an order of the II morable 
 one of the Justices of our Court of , dated the day of , 18 , 
 pursuant to the statute in such case made to satisfy {or towards sati-ilyinj;;, 
 if the debt he less than the judgment debt) £, which the said A. I>. lately 
 in our said Court of recovered against the said C, D. whereof tiio said 
 
 C. D. is convicted as appears to us of record, and have you there then this 
 Writ. 
 
 Witness, &o. 
 
 47. — Writ against garnishee to shew en)isc irhij the judgment creditor 
 should not have execution against Juia for the debt disimtcd by him, 
 under section 197. (a) • 
 Victoria. &c. 
 
 To E. P. of in the County of 
 
 Wo command you, that within eight days after the service of this Writ 
 upon you, inclusive of the day of such service, you appear in our Court of 
 Quecn't) Bench {or Common Pleas) to show cause why A. B. should not 
 have execution against you for £, , being the amount {or part of the 
 amount if the debt exceeds the judgment debt) of a debt due from you to C. D. 
 to satisfy {or towards satisfying if the debt be lois than the judgment debt) 
 £> , whicii on the day of , 18 , {date of judgmenl) the said 
 
 A. B. by a judgment of our Court of recovered against tlie said C. D. 
 
 and for costs of suit in this behalf, and take notice that in default of your 
 not so doing the said A. B. may proceodjo execution against you. 
 
 Witness, &c. 
 
 The following endorsement must be made on the Writ — This Writ was issued 
 by K. A. {Plainti/f's Attorneifs name in full) of {place of abode in full, 
 
 also if sued out as agent for another Attorney here say " as agent for A. A. 
 of ,") Attorney for the said A. B., or if sued out by the Ptaintijf in 
 
 person, "Tiiis Writ was issued in person by the Plaintiff within named 
 who resides at ," [mentioning the City, Toivn Incorporated or other 
 
 Village, or the Township within which such Plaintiff resides.) The Pliuntiif 
 claims £> {the amount of the debt claimed from the garnishee) and £ 
 for costs, and if the amount thereof be paid to the Plaintiff or his Attorney 
 within eight days from the service hereof, further proceedings will be 
 stayed. ( Within three days after the service fill up thefolloiving endorsement,) 
 This Writ was served by me X. Y. on E. P. on the day of , 18 . 
 
 (a) C. S. U. C. cap. 22, s. 201. 
 
■•if J 
 
 CT. 
 
 icnnl, and tha 
 iitoly iifror the 
 lit uiiinner, Sco, 
 
 liar 1) lil'iwlok , 
 our Justices of 
 ition herei>f, to 
 it if Ihi'. (Icbl be 
 ?. to C. n. here- 
 
 tho llononible 
 yof , 18 , 
 iirds siiti'il'vinK, 
 lid A. 15. liitoly 
 ?liercol' tlie sulJ 
 
 there thou this 
 
 fr/mcnt creditor 
 'ittintted by him, 
 
 ice of this Writ 
 
 in our Court of 
 
 . C. sliouM not 
 
 (or piirt of the 
 
 on) you to C. D. 
 
 Ju(h/!ncni debt) 
 
 ineiil) tho said 
 
 jt the said C. D. 
 
 default of your 
 
 ist you. 
 
 Writ was if5suc(l 
 of abode in full, 
 ajjcnt for A. A. 
 
 the Ptaiiitijf ill 
 
 within named 
 
 pornied or other 
 
 Tho Plaintiff 
 
 jAee) and £> 
 
 or his Attorney 
 
 edings will be 
 ng endorsement,) 
 
 of ,18 . 
 
 SCIIEbULE A. 
 
 717 
 
 48. — Dechirdtini thereon. 
 
 In tlio (iuocu'8 Bench {or Common Ploaa.) 
 
 Tho day of , A. D. 18 . ^ 
 
 ( Ve)U(e) A. 15. hy his Attorney {or in person) suns E. V. liv a Writ 
 
 issued out of this Court in these words — Victoria, ito. ('''-/v/ the Writ) and 
 the Haid K. l'\ 1ms appeared to tho said Writ, and tiio »aid A. 15. hy his 
 Attorney aforesaid says that tho said dobt due from tho said K. T. to tho 
 said 0. i>. is for, ifeo. {here state the debt an in a dedarntion in urdimiri/ cdses), 
 and tho said A. B. prays that execution may bo ad.jud;.;ed to him accord- 
 ingly for tho said JC , and for costs in this behalf. 
 
 40.— Pica thereto. 
 
 In tho Queen's Bench (or Common Pleas). 
 
 Tlio day of , 18 , 
 
 E. F. I Tho said E. F. by his Attorney, says that ho nevor was 
 
 ats. > indebted to tho said C. D. as allcjjed [or lilead such other defence 
 A. B. j or several defences as in other cases.) 
 
 50. — Issue thereon. 
 
 {Copij ike Declaration and^Plcadings, and conclude thus), Therefore lot a 
 Jury como, &c. 
 
 51. — Postea thereon. 
 The same as in ordinary cases, omitting the assessment of damages. 
 
 52. — Judgment for Plaintiff therein. 
 
 The tiUiiie (ts in o)dlnarij cases to the statement of the Judgment, u-hich may 
 be thus, Ihcrelore it is considered that the said A. U. have oxocution 
 Hfi^ainst tiio said E. F. for the said £ , tho amount {or part of the 
 amount) of tho said debt due from him to the saiil C. D., to sati^fy {or 
 towards satisfying, if the debt be less than the Judgment ilcbf.) tho said ii , 
 which tho said A. B. on tho said day of , 18 , {date of Jud.jment 
 
 aguiimt Judipnent debtor) by the judgment of this Court rccnvored against 
 tlio'said U. i)., and it is further considered that the said A. V>. do recover 
 against tho said E. F. ii , for his costs of suit in this behalf. 
 
 53. — Fi. I'd. therein. 
 
 Victoria, &c., {as in No. 29, down to) that of the goods and chattels of 
 E. F. in your Bailiwick, you cause to be made £ , the amount (or part 
 of the amount, if the debt be more than the Judgment debt,) of a debt due from 
 the said E. F. to C. D., to satisfy {or towards satisfying, if the debt be less 
 than the Judgment debt) £ , which A. B. on the day of , 18 , 
 
 (date of Judgment against Judgri'.ent debtor,) by the judgment of < ur C>iurt of 
 Queen's Boncii {or Common Pi nis) recovered against tlie said C. D., and 
 whereupon it has been adjudge! by our said Court that the said A. B. 
 should have execution against th/i said E. F. for the said £ , and also 
 £ , which in our same Court ;vere adjudged to the said A. B. for his 
 costs of suit which he hath been put to on occasion of our said Writ, sued 
 
 HI : ftSd 
 
748 
 
 FORMS TO THE COMMON "LAW PROCEDURE ACT. 
 
 ■I 
 
 J 
 ■•1 
 
 out .awfiinst the said E. F. at the suit of the said A. B. in Ihiit liehalf, 
 whereof the said E. F. is convicted, and have the said moneys tjelbre our 
 said Court at Toronto immediately after the execution hereof, to be 
 rendered to the said A. B., and in what manner, &c. 
 
 5-i. — C'a. Si I. therein. 
 
 Victoria, &c. [beginning as in the preceding form) that you take E. F., if 
 he bo found in your Bailiwick, and him safely keep, so that you may have 
 his body before our Court of Queen's Bench (r;/- Common Pleas) at Toronto, 
 immediately after the execution i'oroof, to satisfy A. B., £ , the amount 
 {or part of the amount, :fthe debt be more than the judgment debt) of a deljt 
 due from the said E. F. to C. D., and for the levying of which it has been 
 adjudj^ed by our Court of (Jueen's JJench {or Common Pleas) that the s;ii'l 
 A. B. should have his execution against the said E. F., to satisfy {or ^mvards 
 satisfying, if the debt be let;s than tlie jndgment debt) £, , which the said 
 A. B. on , {date of the judgment against the judgment debtor) by tlie 
 
 judgment of the said Court, recovered against the said C. D., and furtlier 
 to satisfy the said A. B., £ , which in our same Court wore adjuiigcj 
 to the said A. B. for his costs of suit which he hath been put to on occasion 
 of our Writ against the said E. F., at the ?uit of the said A. B. in that 
 behalf, whereof the said E. F. is convicted, and have you there then this Writ. 
 
 Witness, &o. 
 
 55. — Judgment for Flaintij)-' after verdiet that a Mandamus do issue 
 
 unde^ section 277. («) 
 
 {The same as in the ordinary form of an entry of jud.gmcnt to the end of the 
 postca and then proceed,) Therefore it is considered that a Writ of Manda- 
 mus do issue, commanding the defendant [state the duty to be perfor ined, or 
 the tiling to be done as claimed by the declaration), and it is also considered 
 that the plaintiff do recover of the defendant the said moneys by the Court 
 aforesaid, in form aforesaid, above assessed, and also £ , for his costs 
 aforesaid in that behalf. 
 
 {In the margin of the judgment opposite the icords, Therefore it is cnn- 
 eidered, &c., write judgment signed the day of , 18 , inserting 
 
 the day of signing final judgment.) 
 
 50 
 
 Writ of Inqviry to ascertain the expense incurred by the doing of an 
 act for the doing of ichich a U^rit of Mandamus was issued under 
 section 280. (i) 
 Victoria, &c. 
 
 To the Sheriifof the Couuty {or United Counties) of , greeting. 
 
 Whereas upon an application by A. B., the plaintiff, in an action agairist 
 C. D., in our Court of Queen's Bench [or Common Pleas) at Toronto, our 
 said Court did, on the day of i 18 , [date of order) direct that 
 
 {state the terms of the order directing ih- act to be done at the defendant'.'-: 
 expense), and the said A. B. {or and E. F. if another jfcrson than the jdain- 
 tiff has been appointed by the Court to do the act), has done the said act so 
 directed to be done, and in order to enable our said Court to ascertain the 
 
 [a) C. S. U. C. cap. 23, s. 3. 
 
 (6) C. S. U. C. cap. 2R, s. G. 
 
 i ^' 
 
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 ifi 
 
 
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 CT. 
 
 SCHEDULE A. 
 
 749 
 
 II that liiihiilf, 
 3ys Lelbre our 
 hereof, to be 
 
 1 tiilte E. F., if 
 you iii:\y have 
 as) at Toronto, 
 , the auiouiit 
 debt) of a debt 
 oh it has been 
 i) that tho said 
 iofy (iir towards 
 which tiic said 
 : debtor) by the 
 D., and further 
 were adjudged 
 t to on oecaision 
 d A. B. in that 
 3 then this Writ. 
 
 lamns do issue 
 
 1o ill'! end of the 
 Writ of Manda- 
 te licrfoviiwl or 
 also considered 
 ys by the Court 
 , for his costs 
 
 ?fore it is con- 
 .8 , inserting 
 
 the dolf)(i of an 
 IS issiiL-d under 
 
 , greet in ji;._ 
 
 action a;^aiiiBt 
 
 ■\t Toronto, our 
 
 kr] direct that 
 
 the defend (uii'^- 
 
 than the plain- 
 
 the said act so 
 
 :o ascertain the 
 
 1, 2?, s. (5. 
 
 amount of the expense of doinp; tho same, we oomniand you that by the 
 oath of twelve good and lawful men of your Ijailiwiek, you do proceed 
 dili<;ently to enquire what is the amount of the expenses incurred by tho 
 said A. 13. {or by E. F., as the case may be) in the doing of the said act, and 
 that you send to our Justices of our said Court at Toronto, on the day 
 of , now next onsuing, the inquisition, which you shall thereupon 
 
 take under your seal, and the seals of those by whose oath you shall take 
 the inquisition, together with this Writ. 
 Witness, &c. 
 
 57. — Writ of Kcccution in detinue under section 201, {a) for the return of 
 the chattel detained, and for a distringas until returned^ separate 
 from a Writ of execution for damages or costs. 
 
 Victoria, &c. 
 
 To the Sheriff, &c. 
 
 We command you that withou j delay you cause tho following chattels, 
 that is to say [Itere enumerate th chattels rcmrcred by the Judymentfor the 
 return of which execution has been ordered to issue) to be returned to A. B., 
 which tlie said A. B., lately in our Court of at Toronto, recovered 
 
 against C. D. in an action for the detention of the same, whereof the said 
 C. D. i.^ convicted.* And we further command you that if the said chattels 
 cannot be found in your Bailiwick you distrain the said C. I). V)y all his 
 lands and chattels in your Bailiwick, so that neither the said C. D, nor 
 any one for him do lay hands on the same until the said C. D. render unto 
 the said A. B. the said chattels and in what manner, &c. {concludiny as in 
 Form No. 29 ) 
 
 58, — The like, but instead of a distress until the cJiattel is returned^ com- 
 manding the Sheriff to levy on defendant's goods the assessed xalue 
 of it. 
 
 [Follow the preceding form until the*, and then proceed) and we further 
 command you that if the said chattels cannot be found in your Bailiwick — 
 of the goods and chattels of the said C. D. in your Bailiwick, you cause to 
 he rnaJe £ {the assessed value ofiJie chattels) whereof the said C. D. is 
 also convicted, and that you have that sum of £ , &c. {concluding as in 
 Ko. 20.) 
 
 59 — Indorsement on Writ of Sumvions of claim of a Writ of Injunction 
 
 under section 283. Qi) 
 
 The plaintiff intends to claim a writ of injunction to restrain the defen- 
 dant from {here state concisely for ivhai the Writ of Injunction is rerjuired — 
 as for example thus) " fellirg or cutting down any timber or trees standing, 
 growing, or being in or upon the land and premises at in the dtunty 
 
 of , and from committing any further or other waste or spoil in or 
 
 upon the said land and premises." And take notice that in default of the 
 defendant's entering an appearance as within commanded, the plaintiff 
 may, besides proceeding to judgment and execution for damages and costs, 
 apply for and obtain such Writ. 
 
 (a) C. S. U. C. cap. 22, s. 300. 
 
 (6) C. S. U. C. cap. 23, a. 9. 
 
750 
 
 FORMS TO THE COMMOX LAW PROCEDURE ACT. 
 
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 60. Form 
 
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 SCHEDULE B. 
 
 TABLE OF COSTS. 
 
 General Allowance for Plaintiff's and Dcfcmlmlit, as ^oell between Attorney cirul 
 Client as between I'artij and Party. 
 
 TO THE ATTORNEY. 
 
 Summons, inchuliny attendance 10 
 
 Conciirrcnt Summons 7 6 
 
 llenowod Summons 7 fi 
 
 Caiiias , 10 
 
 CDUCurrent Ca^)ias 7 6 
 
 RuncwLMl Cajiias 7 6 
 
 Cajiias ad satisfae'uindum 10 C 
 
 llcnewcil Capias ad saiisfaciondum 7 
 
 Capias ad aatisfaciendum for the residue 10 <) 
 
 Renewi'd do. do 7 6 
 
 Fi jri Faoias 10 
 
 Rericwi'd Fieri Facias 7 G 
 
 Concurrent Fiui i Facias 7 
 
 Fieri Facias for the residue 10 
 
 Renewed do. do 7 6 
 
 Habere Facias possessionem and Fieri Facias or Capias ad satisfacien- 
 dum for costs in one writ 15 
 
 Habere Facias possessionem alone 10 
 
 Special endorsement of deraantl on Writ of Summons 5 
 
 Writ of Revivor 10 
 
 Ejectment, (summons in) 10 
 
 Writ of Trial, drawinc^-, if under seven folios 6 3 
 
 if above, 6d. per folio for all above. 
 Writ of Kni|uiry the same. 
 
 SubpuMia ad testiticanduni 5 
 
 Subp<ena duces tecum 6 3 
 
 and if above four folios, additional jier folio, Od. 
 
 Attachment aii;ainst Goods of absconding; debtor 10 
 
 Attachment aj^ainst Garnishee 10 
 
 Habeas O'rpus obtained by i'laintiff, including allowance thereof .... "i lo 
 
 Procedendo 10 
 
 Venditioni exponas 10 
 
 Supersedeas 6 3 
 
 Mandai.'us 10 
 
 lujunctii.n 10 
 
 Noi'i:,— Tlie alujve allowances inchiJo all uliaryes for attendance for the writ, 
 v\<\ iklivci'iiig it to the olllecr. 
 
752 
 
 TABLE OF COGTS. 
 
 f. ', 
 
 ''i?h 
 
 COPY AXD SERVICE OF WRITS OF SUMMONS AND OTHER 
 
 PROCKSS. 
 
 •i «. d. 
 
 For eaoli copy, including copies of all iioticos required to be endorsed . (j 5 o 
 Service of encli copy of Writ, if not done by tlie Sheriff, or au officer 
 
 employed by him, when taxable to tlie Attorney 2 i\ 
 
 Mileaffi! per mile, for the distance actually and necessarily travelled, 
 
 when taxable to tlie Attorney (i 
 
 Copy and service of Writ of Subpoena ad Testificandum, exclusive of 
 
 mileage (a) , . 2 6 
 
 INSTRUCTIONS TO THE ATTORNEY. 
 
 Taking Instructions to sue or defend 10 
 
 Instructions for rieadiuff : 
 
 For Special Affidavits, when allowed by the Master, and instructing 
 
 Counsel on special matters 5 
 
 Instructions to Counsel in common matters 2 ri 
 
 NoTR— Xo I'Ve iiUdWfd fur instructions to'Comisi.'l, where such Cduiistl is at- 
 torney in tlio suit, or liis partner. 
 
 Instructions for Brief 3 
 
 I>o. if difficult and many witnesses or dficunicnts, the taxing 
 
 officer, on sight ot the Brief, may allow 10 
 
 Do. for every suggestion ."'> {> 
 
 Do. for issue of fact by consent 7 
 
 Do. for suggestion to revive, or for wi'it of revivor, when no 
 
 rule necessary Ti 
 
 Do. • for rule for writ of revivor when necessary . . . .* 5 
 
 Do. to defend for Executor, after suggestion of death of 
 
 original defendant i) 
 
 Do. for agreement of damages 3 
 
 Do. for confession of action in ejectment, as to the whole or 
 
 in part ,5 
 
 Do. to strike or reduce a Special Jury 10 
 
 DRAAVING PLEADINGS, Ac. 
 Declaration, inclusive of instructions and Engrossing, and of attend- 
 ance to file or serve, but not inclusive of copies to serve 12 C 
 
 If above ten folios, for every folio above ten, in addition 1 
 
 One or more Pleas, if three folios or under, exclusive of instructions, 
 
 but inclusive of engrossing, and copies to servo 3 
 
 If above three folios, for every folio in addition, exclusive of copy to 
 
 serve 1 
 
 Joinder of Issue, inclusive of copies and engrossing 2 6 
 
 Demurrer, inclusive of engrossing, and copy to serve .5 
 
 Joinder of Demurrer, inclusive oif copies and engrossing 2 6 
 
 Marginal statement of matters of Law for argument, exclusive of copies 
 
 for the Judges 5 
 
 Replications, new Assignments, and f.Uicr Pleadings, the same as the 
 foregoing charges f(n' Pleas. 
 
 Postoa, including engrossing 5 
 
 Judgment, wlietlier by default or final 2 
 
 Authority to Receive Moneys out of Court. 2 6 
 
 Suggestions, Pleas to Suggestions, and subsequent Pleadings of three 
 
 folios or under, inclusive of engrossment and copies 1 
 
 («) See R. G. No. 1 of M. T. 29 Vic. page 763. 
 
 
£ s. '!, 
 
 2(1. 5 
 cer 
 
 . .. -2 tl 
 led, 
 
 ... 6 
 
 B of 
 
 . . 2 6 
 
 10 
 
 itiiiK 
 
 ;at- 
 
 5 
 •! *'' 
 
 SCHEDULE n. 753 
 
 £ .S-. rf. 
 
 If above three folios, for every folio, (Irnwinj,- iintl en^jrossir)!;;' (» i o 
 
 Issue for the trial of facts by agreenu it, for every folio I 
 
 Special Case, per folio U l o 
 
 Drawiii^j: iiiterrofi;atories or answers for any purpose required by Law, 
 
 iiiehidin;^ engrossing, per folio 1 
 
 Agreement of Damages, and copy, if five folios or under 5 
 
 Above live folios, for every folio, drawing and engrossing 10 
 
 Copy, per folio o 
 
 Special jiarticulars of demand, or set-off, i.ieluding copy, per folio. .. , 10 
 
 Short ditto and copy ;{ 6 
 
 Bill of Costs and copy for taxation 5 
 
 Co\)y for the opposite party 2 (i 
 
 Taking Cognovit, and entering Judgtrient tliereon, when there has been 
 
 no previf)us proceeding, and the true debt does not exceed £50 . . 2 
 
 For the same services, when the true debt exceeds £50 o 
 
 Drawing and Engrossing Cognovit, and attending execution, where 
 
 tliero have been previous ])roceeding3 5 
 
 Replication, accepting money out of Court, in full of demand, inclusive 
 
 of instructions , 3 6 
 
 In all the above items Engrossing included, unless separately allowed for. 
 
 COPIES. 
 
 Declarations, when not exceeding ten folios 6 3 
 
 Do. above ten folios, per folio (i 
 
 Other Pleadings before enumerated above three folios, per folio fi 
 
 Issue (Pleadings), if fifteen folios or under , 1 G 
 
 If above fifteen folios, for every folio C 
 
 All proceedings. Interrogatories, Answers, and other papers, of which 
 
 copies are to be delivered, per folio (i 
 
 Judgment for non-appearance on specially Endorsed Writs, or Writs 
 
 of Revivor, and in Ejectment, to be taken as nine folios, im hiding 
 
 the Writ. 
 
 NOTICE. 
 
 To declare, reply, and subsequent pleadings, copy and service 2 6 
 
 By defendant to brirg issue to trial, copy and service 3 G 
 
 To Executor or Administrator of sole Defendant deceased, to appear 
 
 to writ and suggestion .3 6 
 
 Of appearance, when appearance duly entered and notice given on the 
 
 day of appearance, but not otherwise 2 G 
 
 Of appearance to Writ of Revivor 2 6 
 
 To Plead 2 ft 
 
 Of Declaration, when necessary, copy and service 2 6 
 
 Of objection for mis-joinder or non-joinder of plaintifT, copy and service 2 ft 
 To Sheriff to discharge a prisoner out of custody, cofjy and service. ..030 
 
 Notice in ejectment to defend for part of the [ireinisea, and service ... 5 
 
 If above three folios, for every folio additional 1 G 
 
 Notice of claimant's or defendant's title, under sections 222 (a) and 
 
 22 1, {I') the same fees. 
 Notice of admission of right, and denial of ouster by a Joint Tenant, 
 
 ttc., and service 3 G 
 
 If al)ove three folios, for every folio it 1 
 
 Of discontinuance by claimant in ejectment, and service o 3 6 
 
 Uf confession of action of ejectment, as to the whole or in part, and 
 
 service 5 
 
 48 
 
 (a) C. S. U. C. cap. 27, s. 4. 
 
 (A) C. S. U. C. cap. 27, s. 8. 
 
751 
 
 TABLE OF COSTS. 
 
 
 'I :r 
 
 F^mt ' 
 
 I <jk ' !3''/: 
 
 
 ) 
 
 £ s. .?. 
 Of trial or assessment, copy and service 3 
 
 Demand of rcsidtrnce of plaintiff and all otlior common notices, copy 
 
 and service 2 
 
 To admit or produce, if not exceeding two folios, copy and service. . . 2 t! 
 
 For each folio above two (j 1 
 
 Note.— Cojiy and service iiidudeil in the al)iive itcm^i, when not otherwise expressed. 
 
 COPY ANIi SERVICE. 
 
 Of special and comm.Mn rnles .3 'j 
 
 Of special rule, above three folios, per folio additional 1 
 
 Of summons or order of a Judi^e u 2 6 
 
 Of order to char;.;e a prisoner in execution 'i 6 
 
 Mileage on services, as on a writ of summons. 
 
 E.JECTMENT. 
 Instructions to sue and examining deeds, as in other cases. 
 If title contested 1 i) 
 
 ATTENDANCES. 
 
 Attendance at Judges' Chambers, at the Crown offices, and all other 
 
 common attendances in the course of a cause 2 6 
 
 Fee on every record, writ of trial, or enquiry 5 
 
 Fee on every rule of Court, or Judge's order 6 n 
 
 Attending Assizes if cause entered, where no fee is charged by the at- 
 torney as counsel 5 
 
 Attendance on Master on special matters 5 
 
 For every hour after the first 5 
 
 Taxation of costs on postea 5 
 
 Of costs of cause, otherwise than on postea 2 6 
 
 Of interlocutory matters 2 ti 
 
 BRIEFS. 
 
 For drawing per folio of original and necessary matter 1 tJ 
 
 Copies of the pleadings or documents when required 6 
 
 Copy for second counsel, where fee taxed to him, por folio fi 
 
 TERM FEES. 
 
 Term fee, after declaration filed 3 <) 
 
 Every necessary letter on the business of the cause 2 li 
 
 AFFIDAVITS. 
 
 Drawing Special Affidavits, per folio, including engrossing 1 
 
 Copies of Affidavits, where necessary, per folio fi 
 
 Common Affidavit of five folios or under, including copy and oath. . . 5 " 
 
 DEFENDANTS. 
 
 Entering appearance 3 6 
 
 For each additional defendant j 1 '^ 
 
 A second summons, and order for time to plead, shall be allowed in 
 special cases where necessary, 
 
 COUNSEL FEES, (a) 
 
 Fee on motion of conrse, or on Motion for rule nm, or on motion to 
 
 make rule absolute 10 't 
 
 (a) There fees are printed aa amended by R. G. No. 1 of H, T. 22 Vic. p. 753. 
 
£ s. ,'. 
 
 3 
 
 . copy 
 
 2 
 
 ico... 2 f) 
 'J 1 
 
 expressed. 
 
 .... 3 'J 
 
 ...010 
 
 *"'.... 2 6 
 
 '. 3 6 
 
 1 
 
 ill other 
 
 .026 
 ' 5 
 
 .....'■ *J ^ " 
 )V the at- 
 
 .050 
 
 ..050 
 
 ,050 
 
 .050 
 
 2 6 
 
 f "-".*.'... 2 f. 
 
 ... 1 
 '" .. 6 
 ,*.'.'... t) 
 
 . 5 tt 
 ".".'.'... 2 « 
 
 1 
 ftdoath".'.. 5 " 
 
 3 6 
 allowed in 
 
 motion to 
 10 " 
 
 H, T. 22 Vic. p. 'J^''- 
 
 SCHEDULE B. 755 
 
 £ s. a. 
 
 On special motion for rule ms't, only one counsel fee to bo taxed 1 5 
 
 To attend reference to Master wlien counsel is necessary 1 5 
 
 For argument on sujjportinfj or opposing rules on return of rule nisi, 
 
 on argument of demurrer, special case or appeal 2 10 
 
 To 1)0 iiiPi'cased in tlie disRretiim of tlio Jfiisti'i' iit Toronto, to a snm not to exceed 
 to O.S., subject to aiiiieiil to the Court or ii Juilge, to reduce tlie amount allowed. 
 
 Fee with brief on assessments 1 5 
 
 Fee with brief at trial, in cases of tort or in ejectment, or in matters 
 
 of contract, when tiio sum to be recovered exceeds £100 2 10 
 
 To be increased by the taxing ofBcer, in his discretion, to a sum not exceeding 
 €5, to senior counsel, and il'i 10s. to junior counsel, in actions of a siieciiil and 
 iiuijortaut nature, subject to in apjical to llie llaster (at Toronto) of the Court 
 wiiere the actinu was bmui^lit, wlio shall have power to tax fees to the senior 
 counsel, to auy suui not exceeding tlO, and to tlie junior couusel, tU)t exceeding 
 £.0, jirovided that more thau one counsel fee sliall not be allowed in uuy case not of 
 a sjiecial and iniporUmt nature, (a) 
 
 Fee with brief in other cases 1 5 
 
 Fee to counsel on argument or examination in chambers, to bo allowed 
 
 by the Judge at the time, when he considers the attendance of 
 
 counsel necessary, not less than 10s., no more thau 25s. 
 
 FEES 
 
 To be taken and received by the Clerks of the Crown and Pleas, or their 
 Deputies, or by the Clerk of the Proecss. 
 
 In addition to all fees expressly imposed by statute — 
 
 Every Writ 2 6 
 
 Every concurrent, alias, pluries, or renewed writ 2 6 
 
 Ever}' appearance entered, and filing memorandum thereof 1 
 
 Every appearance, each defendant after the first ,. 6 
 
 Filing every affidavit, writ, or other proceeding , 4 
 
 Amending every writ or other proceeding 1 3 
 
 Every ordinary rule 1 .3 
 
 Every special rule not exceeding six folios, per folio 1 
 
 Every judgnaen*- by default , 2 (> 
 
 Every final Judgment otherwise than judgment by default 2 6 
 
 Taxing every bill of costs, and giving allocatur 3 4 
 
 Every reference, inquiry, examination, or other special matter referred 
 
 to the Master, for every meeting not exceeding one hour 5 
 
 Do. do. for every additional hour or less , 5 
 
 Upon payment of money into Court, for every sum under £50 5 Q 
 
 Do. :50 and under £100 10 
 
 Do. £100 and above that sum 10 
 
 Every certificate made evidence by law, or required by the practice, 
 
 including any necessary search , 2 6 
 
 Exomplificatioii, or office copy of proceedings, per folio ., 6 
 
 Every search, if not more tlian two terms 6 
 
 Every search exceeding two, and not more than four terms 1 
 
 Evory search exceeding four terms, or a general search 2 6 
 
 Every affidavit, affirmation, &c., taken before tliom 1 
 
 Every allowance and justification of bail 1 3 
 
 Taking recognizance of bail 1 3 
 
 Filing affidavit and enrolling articles previous to the admission of an 
 
 attorney 2 6 
 
 Every admission of an attorney 10 
 
 («) See Ham ct uz. v. Lasher et al, 24 U. C. Q. B. 357. 
 
 'M 
 
W'^ 
 
 
 75G TABLE OF COSTS. 
 
 £ s. <l 
 Entering; satisfaction on record, and filing satisfaction piece, including 
 
 any necessary search () 2 
 
 Every commission for the examination of witnesses o 5 o 
 
 Every commission for takini^ bail and affidavit (to be on parchment), 10 
 
 Entenrii^ exoneretur on bail piece .0 1 3 
 
 Makin;^ up records of conviction, or of acquittal, per folio G 
 
 Entei'in;;; and docketing judgment 2 
 
 For maliing the entry required in the debt attachment book 2 6 
 
 CLERK OF ASSIZE AND MARSHALL. 
 
 The Fees provided by 14 & 15 Vic. cap. 118, to be accounted for to 
 
 the Fee Fund. 
 
 CLERK IN CHAMBERS. 
 
 Every Summons I ?, 
 
 Every Order • 2 6 
 
 For receiving and taking charge of Nisi Prius records and exliibits in 
 
 each cause 2 6 
 
 Filing each paper 4 
 
 Every Fiat for a Rule of Court 1 3 
 
 Taking every offidavit or affirmation 1 
 
 Office copies of papers, per folio 6 
 
 For searching, the same allowance as to the Clerk of tlio Crown and 
 
 Pleas. 
 
 SHERIFF— (CIVIL SIDE), (a) 
 
 Every warrant to execute any process, mesne or final, when given to 
 
 a bailiff 2 6 
 
 Arrest, when amount endorsed does not exceed £50 5 
 
 Do. do. do. over £60 and under £100 10 
 
 Do. do. do. £100 and over 1 
 
 Mileage, going to arrest, when arrest made, per mile 6 
 
 Do. conveying party arrested from place of arrest to the Gaol, per mile 6 
 
 Bail bond, or bond for the limits , 5 
 
 Assignment of the same 5 
 
 For an undertaking to give a bail bond 5 
 
 Service of process, not bailable, scire facias, or writ of revivor (includ- 
 ing affidavit of sei'vice), each defendant 5 
 
 For each summoner on writ of scire facias, to be paid by the sheriff. .026 
 Serving subpoena, declaration notices, or other papers (beside- aileago 
 
 for each party served) 2 6 
 
 Receiving, filing, entering and endorsing all writs, declarations, rules, 
 
 notices, or other papers to be served, each 13 
 
 Return of all process and writs (except subpoenas) 2 6 
 
 Every search, not being by a party to a cause, or his attorney 1 
 
 Certificate of result of search, when required 2 6 
 
 Fee on striking special jury , 1 
 
 Serving each special juror , 1 3 
 
 Summoning special jury, each mile's travel from the Court House ... 006 
 
 Returning panel of special jurors 6 
 
 Every jury sworn 5 
 
 Poundage on executions, and on attachments in the nature of execu- 
 tions, where the sum made shall not exceed £100, five per cent. 
 Where it exceeds £100, and is less than £1,000, five per cent, for the 
 
 first £100, and 2^ per cent for residue. 
 Over £1.000, IJ per cent, on whatever exceeds £1,000, in addition to 
 the poundage allowed up to £1,000, in lieu of all fees and charges 
 
 (a) See also R. G. Nos. 1 «t 2 of H. T. 25 Vic. p. 761. 
 
 ■a ■'»- 
 
SCHEDULE B. 
 
 £ s. <h 
 luVing 
 
 2 
 
 5 
 
 lent). 10 
 
 1 3 
 
 6 
 
 2 
 
 '.' .. 2 6 
 
 for to 
 
 1 3 
 
 ^.' 2 6 
 
 libits in 
 
 2 6 
 
 4 
 
 .... 1 3 
 
 .... 1 
 
 ■ 6 
 
 )wa and 
 
 civen to 
 
 ..026 
 
 .. 5 
 
 . . 10 
 
 .10 
 
 permilo 6 
 ,060 
 ' .. 5 
 "!.. 5 
 |r (includ- 
 
 ... 5 
 
 sheriff.. 2 6 
 jileago 
 
 ....!. 2 6 
 3na, rules, 
 
 ..013 
 
 .026 
 ev ;*.".*... 1 
 
 1 
 
 1 3 
 
 House'... 6 
 .060 
 
 '.'.'.'''.'.' 5 
 
 of execu- 
 per cent, 
 lit. for the 
 
 ddition to 
 id charges 
 
 757 
 
 £ .5. d. 
 
 '■■m 
 
 for services and disbursements, except mileage, in going to seize, 
 and disbursements for advertising, and except disbursements 
 necessarily incurred in the care and removal of pro])erty, in cases 
 exceeding £1,00(), to be allowed by tlio Muster in his discretion. 
 Schedule of goods taken in execution, including copy to defendant, if 
 
 not exceeding five folios 5 
 
 SCHEDULE (B). 
 
 Each folio above five 6 
 
 The sum actually disbursed for advertisements required by law to be 
 
 inserted in the official Gazette or other newspaper. 
 Drawing up advertisements, when required by law to be published in 
 the ofHuial Gazette or other newspaper, and transmitting the samo 
 
 in each suit '■> 
 
 Every notice of sale of goods in each suit 2 6 
 
 Every notice of postponement of sale on execution, in each suit 1 3 
 
 Service of writ of possession or restitution, besides mileage 1 
 
 Bringing up prisoner on attachment or habeas corpus, besides travel 
 
 at Is. per mile 5 
 
 Actual mileage from the Court House to the place where service of any 
 
 process paper or proceeding is made, per mile 6 
 
 Seizing estate and effects, on attachment against an absconding debtor 10 
 Every inventory to be charged as on executions. 
 
 Removing or retaining property, reasonable and necessary disburse- 
 ment.; .ind allowances to bo made by the Master, or by order of 
 tlie Court or a Judge. 
 Presiding on execution of writ of enquiry, under sec. 280 (a) of the 
 
 Common Law ProcedurcAct, 1856 10 
 
 Summoning jury 5 
 
 Bailiff 's fee, summoning jury, mileage per mile o 6 
 
 Hire of room, if actually paid, not to exceed 10 
 
 Mileage from Court House to place where writ executed, per mile. .. . U 6 
 Bond to secure goods taken untler an attachment, under sec. 50 (b) of 
 
 the Common Law Procedure Act, lb56, if prepared by the sheriff 5 
 
 IN REPLEVIN. 
 
 Precept to the bailiff 2 6 
 
 Notice for service on defendant ■ 2 6 
 
 Delivering goods to the party obtaining the writ 10 
 
 For writ, etc., de retorno habendo 5 
 
 Replevin bond 3 
 
 CRIER. 
 
 Calling and swearing jury 2 C 
 
 Calling plaintiff' on non-suit 1 
 
 Proclamation and calling parties on recognizance, each person 1 
 
 Swearing each witness, or constable 6 
 
 JURORS. 
 Where not specially provided for by Statute. 
 
 Special jurors, each day's actual attendance, to be paid to those only 
 
 who are sworn 5 
 
 Common jurors, when not paid by tiie county, every cause in the infe- 
 rior jurisdiction, each juror 7^ 
 
 Iq every other case, each juror 1 3 
 
 yi> ' 
 
 
 p. 761. 
 
 (a) C. S. U. C. cap. 23, a. 6. 
 
 (i) C. S. U.C. cap. 25, 8. 15. 
 
 li 
 
758 
 
 TABLE OP COSTS. 
 
 1^^ 
 
 1^^ ^V 
 
 
 
 
 
 ALLOWANCE TO WITNESSES. 
 
 £ n. a 
 To witnesses residing witliin Uirco miles of tlio Court. Ifouso, per diem .'i <t 
 
 To witnesses residing over three miles from tiic Court House o ■'5 o 
 
 Barristers and attorneys, physicians and surgeons, when culled upon 
 to give evidence, in coiisequonec of any professional service ren- 
 dered by them, or to give professional opinions, per diem 1 
 
 Engineers and surveyors, wlien called upon to give evidence of any 
 professional service rendered by them, or to give evidence depend- 
 ing upon tlieir skill or judgment, per diem 1 
 
 If the witness attend in one cause oidy, they will bo entitled to the 
 full aUowanco. If they attend in more timn one case, tiiey will 
 be entitled to a proportionate part in each cause only. 
 
 The travelling expenses of witnesses, over ten miles, shall bo allowed, 
 according to the sums reasonably and actually paid, but in no 
 case shall exceed one shilling per mile, one way. 
 
 COMMISSION. 
 
 For taking every affidavit 1 
 
 Taking every recognizance of bail 2 •' 
 
 prr 
 
 \l 
 
 
 
 si- 
 
 -J 
 
II E G U L .E GENE E A L E S . 
 
 4 
 
 niLARY TEUM, 'Jl'nd VICToniA. 
 
 lOth February, 1850. 
 
 It is orJercd that so much of the rule of thl.s Court and of the tiihlo 
 
 of fees as rehitcs to the tuxinc of fees to counsel bo rescimlcd, ujion, 
 
 from, and after the first day of Easter Term next, and t!i;it the I'uliow- 
 
 ing be substituted: 
 
 COUNSEL FEES. 
 
 Fee on motion of courso, or on motion for rule niii, or on motion to 
 
 iiiiilco rule absolute £0 10 
 
 On ?iiei;iiil motion for rulu itini, only one counsul fee to bo taxed 1 5 
 
 To alU'iul reference to Master wlien counsel is necessary 1 5 (» 
 
 For ar!4'ument on supiiortin;^ or opiiosinu; rules on return of rule niti, 
 
 on argument of demurrer, si)eiial case or appeal 2 10 
 
 To lie iiicrt'iiHcd in tlu; (liscri'tlm of tlip .Miistcr at Tnninto, tii a aum not tn pxopt'd 
 £,6 an., sulijrct to aiipeal tu tlif Court or a Ju(lt;i', to ri.'clucu tin; uiiiouut allowed. 
 
 Fee with brief on assessments 1 .5 
 
 Fee with brief at trial, in cases of tort or in ejeetruent, or in matters 
 
 of contract, when the sum to be recovered exeeeils I'luo 2 10 
 
 To lu' iiKMvasL'il by the tuxiiij; ofllccr, in liis iliscrctiijii, to n siini not pxi'ciidiiij; 
 M^, to si-iilor counsel, uud .tl'J 10s. to .junior coinisri, in ai-tioiis of a Kpuciiil and 
 inii)(prtant iritinv, subject to nu apiical to t)ie Master (at Toronto) of the Court 
 where the action was bnmxlit, who shall have power to tax fees to the senior 
 eouusi. 1, to any sum not excei-din^' ,CHl, and to the Jnnior C'lunscl, not excecillrij,' 
 £5, provided that nnire than one counsel tee sliall not be alloweil in any ease not v( 
 ;t special and important uatu.'u. (n) 
 
 Fee with brief in other cases , , 1 5 
 
 Fee to counsel on argument or exainiuatiou in clinmbcrs, to be allowed 
 by tiie judge at tlio time, when he consiilers the attendance of 
 counsel necessary, not less than 10s., iu)r more than 2js. 
 
 It is ordered, that from and after the last day of this present Terni 
 the Clerk of the Proce.ss shidi, on the openinj^ of the respective Crown 
 ofBcos each morning, or as soon thereafter as may be, deliver to the 
 Clerks of the Crown of the respective Courts in which the process has 
 has been issued all processes on which summonses were issued, and all 
 orders and affidavits on which writs of capias were issued by hini on 
 
 (a) See Ilam ct nz. v. Laslicr d al, 2-1 U. C. Q. B. 357. 
 
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 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. MS80 
 
 (716) 877-4503 
 

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 •fi^ 
 
760 
 
 niUVLJE OENZRALES. 
 
 tho prcccdlnj; dny, that the saiue m.iy be filed with the papers in the 
 respective suits to which such processes, affidavits aud orders belong. 
 
 It is ordered, that tho Clerk of tho Process shall deliver to each of 
 tho Clerks of the Crown of tho respectivo Courts on tho first day of 
 January, tho first day of April, tho first day of July, and the first day 
 of October, if not a Sunday or lej^al holiday, and if so then on tho first 
 dny thereafter not being a Sunday or legal holiday, in each and every 
 year, quarterly returns of all writs issued by him during the preceding 
 quarter to the respective Crown oflTices, naming each description of 
 writ, and ♦' -^ 'latcs on which the same were issued, to each of the 
 Clerks of ti ; Orown requiring the same, tho first return thereof to be 
 made on tli-. first dny of April next ensuing. 
 
 TRINITY TKRM, 24th VICTORIA. 
 
 27th August, 18G0. 
 
 1. It is ordered that from and after the first day of this present 
 Trinity Term, 21th Victoria, llule No. 155 of this Court, of Trinity 
 Term, 1856, be rescinded, and that the following be substituted therefor: 
 
 No. lt^5. — In any action of the proper competence of the County or 
 Divi.sion Courts, respectively, in which final Judgment shall have been 
 obtained by a IMaintifi" without Trial, or in which a Plaintiff" shall obtain 
 Execution on proceedings in tho nature of a final Judgment, no more 
 than County or Division Court costs, as the case may be, shall be 
 taxed without the special order of the Court or a Judge, but this Rule 
 shall not extend to costs on interlocutory proceedings. 
 
 2. It is also ordered that Rule No. 1-16 of Trinity Term, 20th 
 Victoria, be rescinded, and the following substituted therefor : 
 
 The Oificcs of the Clerk of the Crown and Pleas shall be kept npen 
 as follows, that is to say: — During Term, from ten in tho morning to 
 four in the afternoon, and (except between the first day of July and 
 the twenty-first day of August) at other times, from ten in the morning 
 until three in the afternoon, — Sundays, Christmas Day, Good Friday, 
 Easter Jlonday, New Year Day, and tho Birthday of the Sovereign, 
 and any day appointed by general proclamation for a general fast or 
 thanksgiving, excepted ; and between the first day of July and the 
 twenty-first day of August, both days inclusive, the said Offices shall 
 be open from half-past nine in the forenoon, until twelve o'clock noon 
 
HILARY TERM, 25tii VIC. 
 
 7G1 
 
 IIILAIIY TEHM, 25tu VICTOIUA. 
 
 14th February, 1SG2. 
 It is ordered, that the several Sheriffs ia Upper Cunuda shall be 
 allowed, in addition to the Fees and Disbursements heretofore autho- 
 rized, for services rendered by them, in the County Courts, to charge 
 and receive the Fees and Disbursements follo\> ing : 
 
 For ret urn of Writ of Execution ngainst Lnnik or Gooils, wlicro notliini^ 
 
 Ims i)ffn iniidu unilor tiic Writ 2s. Gil. 
 
 For ninoviii^ or rt'taiiiinfj property fakcii under anj' Stntuto of this 
 Proviiu'c ri'Iiitinji to Ueplfvin, re(isoiiiil)lo nnd nccossury ilishiirsc- 
 iin'iitH nnij allowunct's, to bu iipproved by the Clork, or by orUur of 
 tlii; iliidgo. 
 
 HILARY TERM, i-'dTll VICTORIA. 
 
 lath February, 18G2. 
 
 It is ordered, that hereafter the several Sheriffs in Upper Canada 
 shall bo permitted to charge reasonable and necessary di.-?bursemen*.a 
 and allowances, to be approved by the Master, or by order of the 
 Court or a Judge, for removing or retaining property taken under any 
 Statute in this Province relating to Replevin. 
 
 Victoria, by the Grace of God, &c. 
 
 It is ordered, that the Form of Writs of Assignment of Dower to be 
 used under the Statute 2-lth Victoria, cap. 40, shall be a.s fullow-i : 
 
 The Writ of Ai-signment of Dower required to be is.«ued after a 
 Judgment, in an Action of Dower, has been entered in favor of the 
 Demandant, shall be in the form hitherto in use in Upper Ciinaila. 
 
 And the Writ of Assignment of Dower, required to be i.ssuod under 
 the second clause of the said Statute, when the right of Dower is 
 acquiesced in by the owner of the Estate, may bo as follows : 
 Upper Canada. 
 
 County of 
 
 To the Sheriff of the County of , Greeting : 
 
 Whereas, A. B., widow, who was the wife of C. D., deceased, 
 deniand.s against E. F., the third prrt of (here describe the Kstato in 
 which Dowor is claimed, as in other Writs of A.ssignmcnt of Dower)) 
 as the Dower of the said A. IJ. of the endowment of tho said C. D., 
 heretofore her husband ; and whereas it has been made to appear to 
 us in our Court of Queen's Bench, (or Common Pleas, as the case may 
 be,) in Upper Canada, that the said E. F. is tho owner of tho said 
 Real Estate out of which such Dower is claimed, and that he acquiesces 
 in the said claim, and is willing to assign to the said A. B. hor proper 
 
 
 ii 
 
 '1 
 
 V 
 
 -■■ If 
 
762 
 
 REQCLiE OENERALES. 
 
 Dower, but that the said A. B. and E. F. nro not agreed as to the 
 admeasurement thereof: Wo therefore command you, that without 
 delay you do deliver to the said A. B. seizin of lier tliirJ part of the 
 said with the appurtenances, to hold to her in severalty ]jy metes 
 
 and bounds; and that you do proceed in the execution of this oar 
 Writ, according to the provisions of ihe statute in that behalf, passed 
 by the Legislature of our Province of Canada, in the twenty-fourth 
 year of our Reign. 
 
 Witness, &o. 
 
 (When the demandant has married again, since the Joath of her 
 late husband, under whom she claims Dower, her name and description 
 must be made such as to suit the circumstances.) 
 
 TIUNITV TKUM, '.'Oth VICTOUIA. 
 
 It is ordered, that in appeals from the County Courts, in all cases 
 when the Bond required by the sixty-seventh and sixty-eighth sections 
 of the County Courts Act is executed, perfected and produced to the 
 Judge of the County Court, whose decision is appealed from, as re- 
 quired by tlio said Statute, on or before the first day of the Term of 
 the Court appealed to, next after the date of such Bond, the case 
 appealed shall be set down to be heard on the first or second paper day 
 of such Term; (a) and that if the case bo not so set down, the appeal 
 shall be considered and treated as abandoned, and the party in whose 
 favor the decision of the Court below has been pronounced shall be at 
 liberty to proceed in the cause as if no proceeding to appeal the same 
 had been taken. 
 
 MICHAELMAS TEItM, 27tii VICTORIA. 
 
 28th November, 18G3. 
 PLEADING SEVERAL MATTERS, AND DEMURUIXf}. 
 1. In all eases in which a Judge's order to plead and demur, or to 
 plead several matters, is rendered necessary according to the Consoli- 
 dated Statutes of Upper Canada, chapter 22, sections 100 and 110, the 
 original order, or a copy thereof, shall either be attached to the Xisi 
 Prius Record or Demurrer Book, or shall be copied on the margin 
 thereof; and in case of non-compliance with this rule, the Clerks or 
 Deputy Clerks of the Crown shall not pass the record, nor shall the 
 demurrer be argued. 
 
 (a) See R. G. No. 2 of U. T. 30 Vic. p. 1G5. 
 

 TRINITY TERM, 2!)tii VIC. 
 
 782 
 
 TIUNITY TKUM, 2i)Tii VICTOIUA. 
 
 9th September, 15J(;">. 
 
 The Rules of Court, under the bond of '* New Trial List," miiiibcrs 
 one, two, tbree, four, five, six, seven, cijrht, nine, ton, eleven, and 
 twelve, passed in Michaelmas Term, 27th Victoria, shall be, from and 
 after the first day of Michaelmas Term next, annulled, and the follow- 
 ing liulos shall come into force and take effect upon and after the first 
 day of Michaelmas Term next : 
 
 NEW Tlll.VIi LIST. 
 
 1. The party who obtains any Rule Xisi for a now trial, or for enter- 
 ing a nonsuit, or a verilict, or for increasing or reducing a vcrdiut, on 
 leave reserved, may, on or after the fourth day, inclusive, alU-r the 
 serving such rule, file the samo, together with an affidavit of service, 
 with the Clerk of the Court granting such rule. 
 
 2. Tho party served with any such rule may, (if the same has not 
 been already tiled by the party who obtained the same,) on or after tho 
 fifth day after tho granting of tho rule, file the copy served, with an 
 affidavit of tho fact and time of such service, with the Clerk of the 
 Court granting such rule. 
 
 3. In case tho party to whom any such rule is granted shall neglect 
 or delay to draw up and serve the same, tho opposite party may, on or 
 after the third day after the granting such rule, and upon filing with 
 the Clerk an affidavit that the rule has not been served, enter a ne 
 reci'piatitr with su;ih Clerk, after which the Clerk shall not receive or 
 enter such rule in the book hereafter required to be kept by him, and 
 such rule siiall be deemed to be abandoned, and the opposite party 
 may proceed as if no such rule had been moved for or granted. 
 
 4. The Clerk shall, immediately on tho receipt of any rule or copy 
 under the first or second rules, enter a memorandum thereof in a book 
 to be kept for that purpose, in the order in which the same shall bo 
 delivered to him, such memorandum to be according to the form fol- 
 lowing ; — 
 
 . TEUM (TEAU). 
 
 Plaintiff's 
 Naiiio. 
 
 Defendant's 
 Kaine. 
 
 Descrijition 
 of Utile. 
 
 When filed with 
 tiie Clerk. 
 
 How disposed 
 «)f. 
 
 I 
 
 f?; 
 
 ■^i 
 
 ■i !. 
 
 4,- 
 
704 
 
 REQULiC: aENERALES. 
 
 5. Oi\tliO fn'»t Sutiinlai/, the second Tundat/, and the second Fri- 
 day of every Term, the Court of Queen's Ucnch, after going through 
 the IJar to hear motions for rules nisi, or motions of course, will hear 
 tho rules so entered, according to the order in which they stand, in 
 preference to any other business; and on tho first Fridai/, second 
 Mundai/, and second Ucdcsdaj/ of every Term, the Court of Common 
 Pleas will, after going through tho bur to hear motions for rules nisi, 
 or motions of course, hear the rules so entered, according to tho order 
 in which they stand, in preference to any other business. The causes 
 to be heard eacb day to be those on the list as it stands at the opening 
 of the Court. 
 
 6. Each Court, in its discretion, will hear any rule so entered, when 
 both parties are present, and prepared to proceed. 
 
 7. If, when a rule is called on in its proper order, the party who 
 obtained the same does not appear to support it, and the opposite party 
 attends and applies to have it discharged, such rule may be discharged 
 accordingly. 
 
 8. If the party called upon to show cause docs not appear when the 
 rule is called on in its proper ordor, the Court will hear the other siJe, 
 ex 2^(ir(e, and dispose of the rule. 
 
 9. If neither party appear, the rule may, in tho t'" rction of the 
 Court, be treated as having lapsed, and be struck out of tho Clerk's 
 books. 
 
 10. In the absence of other business tho Courts may, in their dis- 
 cretion, hear rules so entered on any other days during Term besides 
 those mentioned in the fifth rule, tho parties to the rule being present 
 and desirous to proceed. 
 
 11. Each Court will, on sufficient ground shown, upon nlBdavit, 
 enlarge a rule so entered to a subsequent day in the same Term, or to 
 the following Term, and tho Clerk shall alter the entry accordingly 
 and place the enlarged rule at the foot of the list. 
 
 12. All rules entered by tho Clerk as aforesaid, which remain un- 
 heard at the end of any Term, shall be enlarged as of course, on filing 
 a motion paper to that effect, to the following Term, and shall be forth- 
 with re-entered in the Clerk's book, in the order in which they then 
 stand, for hearing in the next ensuing term. 
 
 13. The Court may, nevertheless, in any case, if it shall see fit so to 
 do, make any special rule or order, or give any special direction upon 
 or with respect to any such rule, or the entering, taking out, or service 
 
HILARY TERM, Mm VIC. 
 
 765 
 
 remain un- 
 
 thcroof, or with respect to any supposed lapse or abandonment thereof, 
 or otherwise, as it might have done before the passing of these or the 
 rescinded rules. 
 
 MIcnAEI.MAS TERM, 2DTII VKTOIUA. 
 
 2nd December, 1 S05. 
 It is ordered, that the Table of Costs established by the Rule of this 
 Court, of " Trinity" Term, 20th Victoria, be amended ia that part of 
 it 1 lating to Attorneys, and headed ** Copy and Service of Writs of 
 Summons and other Process," by adding as follows : — 
 
 Coj)y nnd Service of "Writ of Subpopim ad TcsliHcaiuluin, exclusive of 
 
 niilea'Tu 50 cents. 
 
 It is ordered, that in all cases where leave is given to raise an Issue 
 or Issues of Law, together with an Issue or Issues of Fact, to any 
 Declaration or subsequent Pleading, the Lssuo or Issues of Law shall 
 bo determined before the Trial of the Issue or Issues of Fact, unless 
 otherwise expressly ordered by the Court or Tudgo in the Uulo or 
 order permitting such Issue or Issues to be raised. 
 
 HILARY IKUM, 30TII VICTOIUA. 
 
 12th February, 1SG7. 
 
 It is ordered, that the following Rules shall come and be in force in 
 the Courts of Queen's Bench and Common Pleas, from and after the 
 last day of this present Hilary Term: 
 
 1. In "Easter" and "Michaelmas" Terms, the first Friday, the 
 second 3Ionday, the second Wednesday, and the third Monday, will 
 be " Paper Days " in the Court of Queen's Bench ; and the first 
 Saturday, the second Tuesday, the second Thursday, and the third 
 Tuesday, in the Court of Common Pleas. 
 
 2. County Court appeals (a) must be set down for argument for the 
 first or second Paper Drys of each Term, such day being the first Paper 
 Day next after the data of the Appeal Boad, unless leave be granted 
 by the Court, upon i-pecial affidavit, to set it down for a subsequent 
 Paper Day : and the Court will hear County Court appeals on the first 
 and second Paper Days of each Term in preference to the other cases 
 set down upon the Paper. 
 
 '■n 
 
 npfiftr 
 
 |Ml 
 llitj 
 
 (a) See R. G. of T. T. 26 Vic. p. 762. 
 
766 
 
 regul.t: oenerat.es. 
 
 3. On tho last Tucfdiiy and Friday in * Easter" and " Michaelmas" 
 Ternip, tho Court of Queen's Ucnch ; and on tho last Monday and 
 Wednesday, in the said Terms, the Court of Common Pleas, will take 
 the New Trial Paper, and proceed therewith, in like manner as on the 
 other days appointed by Rule of Court for that purpose, (a) 
 
 FASTER TERM, 3l8T VICTORIA. 
 
 Gth Juno, 18G8. 
 It is ordered that a certain Ilulo of tho Court of Queen's ]5(M)eh of 
 Upper Canada, now Ontario, made in Michaelmas Term, 9 Victoria, on 
 Saturday, the fifteenth day of November, A. D. 1845, be amended by 
 strikiiii:; out so much of the tariff of fees annexed thereto as applies to 
 Sheiiffs and by substituting therefor the tariff of fees hereto anne::ed. (i) 
 
 TARIFF OF FEES— CRIMINAL JUSTICE. 
 
 Notice of appointment to tho associato Justices of Oyer and Terminer, 
 
 each >!0 ."iij 
 
 Attending the Assizes, per diem 5 00 
 
 " Quarter Sessions, per diem 4 00 
 
 Sumnionin;! each firand Jury for tho Apsizes or Quarter Sessions 12 00 
 
 Suninioiiing eaeli I'etit Jury for tho Assizes or (Quarter Sessions 24 00 
 
 For every Prisoner diseliarged from Gaol, haviny been committed by 
 
 A\ arrant for trial at tho Assizes, Quarter Sessions, Mayor's or 
 
 r.ceordcr's Courts 1 00 
 
 Bringing,' up each Trisoner for flrraifjnment, trial aftd sentence, in all for 
 
 eaeii Prisoner, whether convicted or ocquitted , . 2 00 
 
 Drawiti:; Calendar of Prisoners for trial at the Assizes, including copies. . 00 
 
 Advertising the holding the Assizes 4 00 
 
 " " Quarter Sessions 2 00 
 
 Every Annual or General Return required by law or by tho Government 
 
 resiiccting the Gaol or tho Prisoners therein 6 00 
 
 Every oilier return made to the Government 4 00 
 
 Every return to the Sessions required by Statute or by Order of tho 
 
 t'ourt 2 00 
 
 Drawing Calendar of Prisoners for trial at tho Quarter Sessions or 
 
 Recorder's Court, including copies 3 00 
 
 Returning Precepts to tlie Assizers or Sessions 4 00 
 
 Conveying Prisoners to the Penitentiary or Reformatory, or to another 
 
 County (exclusive of disbursements), for each day necessarily 
 
 employed 6 00 
 
 Arrest of each individual upon a warrant to be paid out of the public 
 
 funds or by the party, {as the case tnaij he) 2 00 
 
 Serving subpcuna upon each person, to be paid out of tho public funds or 
 
 by tho party, (as the case may be) 60 
 
 (a) The first Wednesday in Hilary Term in tho Queen's Bench, and the first 
 Thursday in Hilary Term in tho Common Pleas, aro Now Trial Paper Days. 
 See R. G. of M. T. 33 Vic. p. 677. 
 
 (6) This tariff has been confirmed by Stat. Ont. 32 Vic. cop. 11, s. 3. 
 
and the first 
 
 HILARY TEEM, 33 VIC. 767 
 
 Trnvclliii;: in ffolng to oxncuto wnrrnnt or servo subpoenft, 10 cents per 
 mile, mill the Hunie eliary;e per mile aetimlly trnvelled in returii'm;j 
 vith n prisoner; where the service iiua not been effected, the Jiistieus 
 ill Scsnions to 1)0 sftiiKfii'd thiit duo dili^;ent'0 lias been used ; to bo 
 jialil out of tile public funds or by the l)nrty, (as (he case mail hi). 
 
 Convcyini^ prisoners on nttucbment, Judj^e's order, or Hnlicas Corjnm, to 
 iinotlier County, exclusivo of disbursements, when no chnr^o allowed 
 by law, for ench diiy necessarily employt'd, to bo paid out of iho 
 ]mblic funds or by the party, {nn the rase huh/ he) 6 00 
 
 Slakin;^ return upon attachment on writ of I/nhean C'orpm. To be paid 
 
 out of the public funds or by the party, {an the caxc uitii/ be) 2 00 
 
 Lovyiui^ tines or issues on recof;niznnces estreated, or otlier process, £'t 
 jici- .t'loo on the first £100 of the sum levied, exclusive of mileni^e at 
 10 cents jM'r milo, to be levied under (^nsolidated Statutes L pper 
 Canada, chapter 11'.), sec. 3; and on nil sums above £100 the samo 
 allowance as on executions in civil procoedin;^8, 
 
 Carryiiiu; into execution the sentence of the Court iu capital cases, all such 
 sums 08 shall be unavoidably disbursed, to bo tax -d by the Court or 
 Judiro w'lO passed the sentence. 
 
 Alteiiiliii^ and superintending the execution in such coses 20 00 
 
 Summoiiini; each constable to attend tho Assizes or Quarter SuS'sioiis, 
 
 exclusive of mileage at 10 cents a mile 50 
 
 Keeping a record of Jurors who have served each Court 2 00 
 
 All disbursements actually and necessarily made in guarding prisoners, 
 or ill their conveyance to tho Penitentiary, to any other district, or 
 tl>( where, or for other ))urpo8es in the discharge of tho duties of his 
 otheo (when not provided for by law, nor hereinbefore specitically), 
 to be rendered in account in detail, with proper vouchers, to {ho 
 satigfaction of tho Justices in Sessions, and to bo by thorn allowed. 
 
 MICHAELMAS TEUM, 33kd VFCTOniA. 
 
 2Dd December, 1SG9. 
 It 13 ordered, that the first Wednesday in Hilary Term, in the Court 
 of Queen's Bench, and tho first Thursday in the said Term, in the 
 Court of Common Pleas, shall be Now Trial Paper Days, (a) 
 
 HILARY TEUM, 33ud VICTOniA. 
 
 9th February, 1S70. 
 
 Whcroos by the Statute made aud passed in the Session of the 
 Lcgislafuro of Ontario, held in the thirty-third year of tho reign of 
 Her Majesty, intituled " An Act respecting proceedings in Judge's 
 Chambers at Common Law." 
 
 It is enacted that it shall bo lawful for a majority of all tho Judges 
 of the said Courts, which majority shall include the two Chief-Justices, 
 or one of the Chief- Justices, and the senior of the Puisne Judges oi' 
 the Superior Courts of Common Law, from time to time, to make and 
 publish general rules for certain purposes therein mentioned. 
 
 ■i- 
 
 ''I H 
 
 vM 
 
 I,. 
 
 (a) Seo R. G. No. 3 of H. T. 30 Vic. p. 676. 
 
7G8 
 
 requl/t: qgnebales. 
 
 
 It is tlicrofore ordered that tho Clerk of the Crown and Picas uf the 
 Court of Quoon's Bonch bo and ia hereby empowered and rcquirod to 
 do all such things, and to transact all such busiuess, and exercise all 
 such authority and jurisdiction in respect of tho suino ns by virtue of 
 any Statute or custom, or by tho rules and practice of the said Courts 
 or any of thein respectively, were, at tho time of the passin;» of the 
 Baid Act, and are now done, transacted, or exercised by any Juih^Q of 
 tho suid Courts sitting at Chambers, except in respect of matters rela- 
 ting to the liberty of tho subject and to Prohibitions and Injunctiuns, 
 and except (unless by consent of the parties) in respect of the fullmTing 
 proceedings and matters, that is to say : — 
 
 All matters relating to Criminal proceedings. 
 
 The removal of causes from Inferior Courts other than the removal 
 of Judgments for the purpose of having execution. 
 
 The referring of causes under the Common Law Procedure Act. 
 
 Reviewing taxation of costs. 
 
 Staying proceedings after verdict. 
 
 Appeals in Insolvency. 
 
 In all such excepted matters, not being matters relating to the 
 liberty of the subject, the said Clerk may issue a Summon.s relurnablc 
 before a Judge. 
 
 That in case any matter shall appear to the said Clerk of the Crown 
 to be proper for tho decision of a Judge, the Clerk may refer the same 
 to a Judge, and the Judge may either dispose of the matter or refer 
 the same back to the Clerk with such directions as he may think fit. 
 
 That appeals from the Clerk's order or decision shall be made by 
 Summons, such Summons to be taken out within four days after the 
 decision complained of, or such farther time as may be allowed by a 
 Judge or the said Clerk. 
 
 The appeal to be no stay unless so ordered by a Judge or the said 
 Clerk. 
 
 The costs of such appeal shall be in the discretion of the Judge. 
 
 That the scale of costs for all matters done by and before the Clerk 
 shall be the same as are fixed for business done by and before the 
 Judges. 
 
 That the same fees shall be taken in respect of business transacted 
 before the said Clerk at Chambers as are now taken when the same 
 business is transacted before a Judge. 
 
 That these rules take effect on the 21st day of February, A.D. 1870. 
 
INDEX OP SUBJECTS. 
 
 ABATEMKN'T. 
 
 J)('iilli III" i)1ain(i(T not to cftuso action to abate, 1ST. 
 
 Sir Costs — lli'.vivon. 
 
 rii'R in. — See .loiNKKR OF Parties. 
 
 ADSCON'DING DKHTOR. 
 
 AUaciiiiK'iit iii^iiinHt q;oo(]3 of, issue of, 4T8. 
 Definition of an. 47(i. 
 
 " of, conrtiikred, 47C c, 477 (/, e, 
 Sec Atta(iiment — Attaciimknt ok Goods, itc. 
 AUSENTEE. 
 
 Laikij a lirillnJi luhjcct. 
 
 Writ of sutninons nsfain.st, 41. 
 
 Service of Hunmions or, when allowed to lio substitutional, 43. 
 PlaintifT's cose must be proved uyauist, before judgment eulex'ed. It. 
 iVoi a Itrilish mljerl. 
 
 Issue of writ asjninst, 40. 
 
 Ailidavit to enable plaintiff to proceed against — Before whom to be 
 
 taken, 47. 
 Sec Sl'.m.mons, "Wkit or. 
 
 ACCOUNTS OF COUNTY. 
 Auditing of, 595, 506. 
 
 ACTION. 
 
 Bail to. — See BAin. 
 
 Of dower. — See Dower, 
 
 Joinder of. — Sec Joinder of Caises of Action. 
 
 On judgments. — See Costs. 
 
 ACTION ON RECOGNIZANCE. 
 
 Vonuo to be laid where recognizance remains of record, 7, n. 
 
 ACTIONEM NON, ACTIONEM ULTERIUS NON. 
 Use of, in pleading abolished, 113. 
 
 ACTIONS. — See Local Actioxs — Real Actions — Pexal Actioxs — Personal 
 Actions — Real and Mixed Actions — Transitort Actions, 
 
 ADMISSION OF ATTORNEYS.— &c Attorneys. 
 
 ADDRESSES OF COUNSEL. 
 How regulated, 291. 
 
 The party on whom burden of proof lies has the right to begin, 291, o. 
 Burden of proof, on whom it lies at trial, 292, c. 
 When counsel may address jury a second time, 293. 
 When the right to reply exists, 203, e. 
 
 ADJOURNMENT OF TRIAL..— /&e Assizes, Psockkdings at. 
 49 
 
 ■'■f^ 
 
770 
 
 INIJEX OF SUnjECTS. 
 
 If :: 
 
 •:^-ii 
 
 ADMISSION OF DOCUMKNT.S. 
 
 Co-itrt of itniviny^ (lociiiiK'nts to bo |mi(l 1>\ piirty refusing to nilmit, link's^ 
 
 tlui jiul'^f ccTtitien lliu refusal r('UHoiii»')lc, 'II'J. 
 C(i!<t of proof, wlifn no nolit-o to iidmit lias been served, to lie in the 
 
 Master rt dirtcretioii, '^7".'. 
 Kvlileiico of mliiiisnion, wlint eoiiHtiliiloH, 2S0. 
 
 " of Hervieo of notice to produce, in respect of wliicli notice V> 
 ndmit has been servetl, ii80. 
 Notice to admit, Huviri-,' just exceptions, ninv li^^ nerved by either pnrty, 277. 
 " " just except ioiii iu, what are, '^IH. ui. 
 
 " " form (if uflidavit <if .service of, 'Jh2, /. 
 
 " " for one A.ssizes, good for the next, 'J SO </. 
 
 >SC€ NoTICB TO AllMlT. 
 
 AFFIDAVIT. 
 
 Aiiode nnd addition of deponent to bo stated in, 678. 
 Abode of deponent, what is sullii'ient Htut;'ntent of, »j7'.i, p. 
 Addition of dep(<nent, what i.s Hutlicient Htatenient of. «7tf, />. 
 Name of ea"h deponent, if several, to be inserted in jurat, 670. 
 Jn'ot to be read if there are erasiWf.'H or interlineations in the jurat, CS(). 
 Is'ot to bo Mworn before tlio attorney or clerk of party on wlio.<e behalf i; 
 is to be used, 6H1. 
 
 This rule does not extend to Hftiduvits to hold to ball, dSl. 
 Of an illiterate jierson. Coininis.-iioner to certify sjiecially in jurat, fi.Sl, 
 On iu<itioii to County Cout-t judi^e under C. L. 1'. Act, to .state that detVii- 
 
 datit resides in the county, •i'^Il. 
 Sworn before a judi^o may bo received in that judge's court, thouijh nut 
 L-nliilediu it,'«82. 
 
 If not sworn before a judj^c, onl}' to be used in the court it is enti 
 tied in, (.82. 
 To be divided into parn^rniih.s, which nre to be numbered, 08:1. 
 
 Violatinj^ this rule not to be read, aud cosl.s of not to be allowed, 
 fi80. 
 To be fded within time limited, 082. 
 When tiled, may b'j read by the opposite pnrt}', fi.S2, /. 
 To be produced when niovin<j for a rule, anil to be nnule before movinu; 
 
 or rule to bo of no force, 1182. 
 To be written in n plain hand, 080. 
 
 Sir (iKNKKAL UtLK.S .\S TO I'll.VCTlCiS, 
 
 Motions on. — Hie Motions on Akkii>avits. 
 
 AFFIDAVITS TO HOLD TO BAIL.— AVc Akfid.avit. 
 
 AFFIDAVITS OF IXCIiEASE OF MILEAGE.— 6Vc Incueask, Mile.\6K. 
 
 AGREEMENT TO REFER TO ARBITRATION. — &c Auuitiiation a.m. 
 AwAiiii — Staving Puocekuings. 
 
 ALIEN ABSENTEE. 
 
 Action aijfainst, how commenced nnd proceeded with, 45. 
 Sic AiisENTEE — Summons, Wiirr ok. 
 
 ALLOWANCE OF BAIL.— &c Bail. 
 
 AMEND^IENT AT THE TRIAL. 
 
 0/ variance between any document as proved, and as set out in pleadhig.i. 
 
 Practice ns to, considered, 307, a. 
 
 What variances may bo amended under section (216), 808,/. 
 Of variance between any contract, &c., as jirovcd, and as set out in p/cadinf/s 
 
 Amendments under section (217) fhonld be libcrolly allowed, liOi',/. 
 
 Not to be in matters material to the merits, 311. 
 
m 
 
 INDEX OP 8UlUi:CTS. 
 
 < I 
 
 1 
 
 iilinlt, unlofes 
 to be 5» lln" 
 
 Ich notice t'» 
 luriuH-ty.a"?. 
 
 670. 
 
 I., jurnt. 680. 
 vliosc bchiilf i! 
 
 ,11, f.8l. 
 ill jurat, 6H1. 
 lute lliat Uffcn- 
 
 urt, tliougli not 
 
 ! court it is cnti 
 
 I. fiS!^ 
 
 t to be ttUoweil, 
 
 before moviii',' 
 
 <:, MltKAGK. 
 UUITUATION ASI' 
 
 m pleadhir/i- 
 
 |l6), 308./. 
 
 I o«« «■« pkadDKj^ 
 
 ly allowed, 3U'.>, /• 
 
 AMr.Nl»MK.NT AT TlIK TIUAL— (('.'«/<«."./.) 
 
 'I'lTliH Iiiiiy be 'mi|Mni'il, "ill, 
 
 ir ii|i|icisiii' |iiiiiy inijuiUcitl by, jiiilgo may order postponeinent of 
 trial (III |iri>|i<'r trriii!i, !ill, 
 0/ vtir'i'iiiir* <itiinui!l;i. 
 
 ill-lead iif anifiiiiiiii;, the jiu];^o iiiny ord r flio jury npcclidly to 
 tiiid tJH! factH, .'til. 
 
 i^iii'li tliiciinjjf fii be cnti'rc'd on the rci'ord, 31 I. 
 If vnriMiic(( iiiiiiiatrrlul, tbc iMnirl is to I'ivd jiidLjiiifiit 
 nci'iiriliiiy; to iiicrit, iiot.witli.'^taiiiliii:' Iho liiidini;. Ill I. 
 New trial may lie '^rniiti-d if aiiiciidiiu'iit iiiii>n>prrly nllowcd, '.W'A. 
 OrdiT for, if iiiado at .Ni.si I'rius, t(j be t'lidor.-ied w\ the 
 rccortl, .'H'J. 
 Power of jiulijc as to ninendiiient nt Nisi I'rius, '<\\'<',, d. 
 
 I'l diii!;.s at'tcr order to aiiiciid, \'>\'\. 
 
 Siii'cial liiniiiiL; of jury, !il I, /'. 
 
 TiTiim may be imposed "ii u:raiifinij, .^o'.t. :',1 1. 
 
 l!ut not wbcre jury tiiul siK-cially, :!1 I, _;. 
 Trial aft«r nniendment to i»roueed n^ if no v.irlaiieo bad apiienrcd. 
 
 ;;u'.t, :ui. 
 
 .SVe ^"ew Tuial. 
 
 AMnXDMi:^"'' (;i:NHUAr,LV IX CIVIL CASKS. 
 
 All mil iidiiu'uls necessary to determine tlie real (lueslion at i^sue to be 
 
 made, 3-Jl. 
 AiiiciKlnicnts of writ of summons, .18, W), M. 
 Costs of, to be ill discretion of tin- jucii^c, 8iy, r. 
 
 Kitlirr parly niay apjily to nineiid IhtMrown or tlieir ojnionont'a error, ^19. 
 May be made at all liiiii's, ;il.'i, >i. 
 
 '" " witli or without tcrniH or co^ts. ".lit. 
 " " wiu'tliertliereisanytliitii; in writhiij to ftinciid by or nut, 31 'J. 
 Opj)o-ilo party not to be prcjudiecil by, iliJo. x. 
 I'ower to anu-nd extends to all defeets, Ijltl, u. 
 See MisNoMKii — l'LEAi>ixa — Summons, Wurr ok. 
 
 AMEXDMKNTS TO STATl'TES. 
 Of C. L. 1*. Act, .^)S.-), oj?. 
 Of L. U. Act, COG, 611i. 
 
 Arri:AL. 
 
 j'rum Count}' Court, 10. 
 Bond to be tjiveii on, GIO, 
 Tract lee as to, (ilO. 
 ]jy jierson not named in the record, C09. 
 Time tor settin;; down, 70'-', 705. 
 AS' bo may appeal, 0(Ui. 
 
 AITEAUANCr:. 
 lij nltofnti/. 
 
 The attorney's nami' must be ijiven, fi'^, r. 
 
 Attoriiev uiiderlakiiig to enter, and failiii:^, is li.ibio to atfntlirnent, 
 
 020. 
 Clerks akid depnt}' elerks to enter metn (ramliim of in a book, (Ji;» 
 Date of entry of, to be tilled iu, 00, i. 
 Defective, effect of, 00, //. 
 
 " , may bo aiueuded, 50, 1, 
 Lj dc/t>i(hnit in pemon. 
 
 To file memorandum of place of service of papers, 68. 
 Not to be received without such memorandum, 58, 
 May be set aside if fictitious address is given, 68. 
 
772 
 
 INDEX OF SUBJECTS. 
 
 APPEARANCP;— (C'o»/<in««/.) 
 
 WImt i>Iniiitiff must aliow on an application to proceed against, for 
 
 non-appearance, 592. 
 When j)liiintiff may proceed by striliing out proceedings, oS,u,w,t/. 
 Eninj of, 
 
 After time limited, effect of, 66, in, k. 
 " no furtiier time to plead to be granted, 57. 
 " notice of, 67, 57 o. 
 
 " " if omitted, judgment may be signed, 57. 
 " practice as to, 57, 57 m. 
 By defendant sued in wrong name, CC, d. 
 General rules as to, 619, o, </. 
 
 Infants must be by guardian, not pmrhcin ami, 50, k: 
 Way be entered at any time before judgment, 56. 
 Mode of, 59, a, h, c. 
 
 Operates as a submission to the jurisdiction of the court, ."jO, I. 
 Waives irregularities in writ, copy and service, 56, I. 
 Form of, 60. 
 Sk'iiiorandum of, to be filed same day as entered, 619. 
 
 MuHt be stamped when entered, 56, k. 
 No appeal from final judc;ment for non-appearance allowed, 62. 
 yon-itpptarance to upecialli/ endorsed writ, final judgment may be signed 
 for, 61, 62, p, q, r. 
 
 Execution may issue nn such judgment after eight days. 6:>. 
 Xonappmvmice to writ not i\pecially endorsed, plaintiff may oljtain leave to 
 proceed, 65. 
 
 riaiiitiff may file declaration, and in default of plea, may sign 
 
 judgment, 65. 
 When such judgment is final, 66. 
 
 Setting aside, defence on merits must be disclosed, 04, /. 
 Oliject of, considered, 56, k. 
 Old practice as to entry of, 56, k. 
 
 By one of several defendants, proceedings in case of, 67 m, 68 ji. 
 By ])erson not an attorney, effect of, 60, /. 
 ri.'iintiff may proceed in case of non-appearance at expiration often days, 66. 
 
 " not to enter an appearance for defendant, 61. 
 Of several defendants by one attorney, to contain tlio names of all the 
 
 defendants, 620. 
 Time of appearing when Sunday or a holiday is the last day for, 66. 
 
 '• " when writ is served in long vacation, 67. 
 
 ■\VIien some defendants appear, and plaintiff signs judgment and issues 
 execution against the others, he abandons the action as to tlio defen- 
 dants who appear, 67. 
 In ejectment. — See Ejectment. 
 
 APPOINTMENTS BEFOP.E CLEUKS OF THE CROWN, &c. 
 
 AND DePUTV Ci.EURS. 
 
 ARBITRATION AND AWARD. 
 
 Agreement to refer 
 
 Does not oust the jurisdiction of tlio court, 232, q. 
 
 Future causes of difference, .S;J2. 
 Appointment of third arbitrator, 236, e, f. 
 A ward, 
 
 Execution of, 239, h. 
 
 When to be final, 231. 
 
 May bo attacked if sued or, ftlthough final, 231, x. 
 Compidsory reference. 
 
 Applicatioa for, to bo on affidavit, 209, h. 
 
 S,.C Cl-EUK* 
 
INDEX OP SUBJECTS. 
 
 778 
 
 plea, may si^-n 
 
 [c_ — Sic Clerks 
 
 ARBITllAriON AND AV,'A\U)—(Cout;nw'J.) 
 
 C:»so9 which may bn referred, 210, e. 
 
 Cn.«L'3 wliich cannot otherwise bo conveniently tiicJ may bo re- 
 ferred, 210, c. 
 Costs of serviees as to, to be fixed, 211. 
 " arbitrator has no riglt to deal with, if the order is silent as 
 to, 211, /. 
 County Court jnd;;e duty of, under order of, 211, k. 
 
 referenc'- to, GUT. 
 Court or judije may refer matters of mere account, 20'.>. 
 
 " " may order issues of facts to bo tried by a jurj', 213. 
 
 " " may dei'ido incidental matters of law on special 
 
 case stilted, 212. 
 " " may refer to arbitrators chosen by parties, or may 
 
 try tiie ease summarily, 210. 
 " " decision of, to be conclusive on arbitrator, 21". 
 
 " " " to be enforced by same process as finding of 
 
 jury, 211. 
 Duties of arbitrator, 2'0, h. 
 Enforcing the award, I J, vi, 
 
 " to be by same process ns finding of jury, 211. 
 
 " to be as on a consent reference, 220. 
 
 Matters of mere account, what are, 20'.>, </. 
 I'owers of arbitrator, 210 i, 213 r. 
 
 liefc'ence, order for, should not embrace all matters in dispute, 210 </. 
 " I'ower to refer exists oidy after suit is counuenced, 209 a. 
 '• To wlioiu to be made, 210. 
 
 " Proceedings on, to be as on consent references, 220. 
 Coxlx of tlic afi'ard 
 
 Defined and considered, 226, /•: 
 of the cause " " 226, k. 
 
 May bo taxed before tlie time for moving against the n vard ex- 
 pires, »)',•:>, /. 
 No costs are to be taxed under a submission except as therein 
 
 given, 22i>. k: 
 I'ower of arbitrator as to, 226, /•. 
 County Court judge in his own coiu't, powers as to reference, 243. 
 Death of arbitrator, effect of, 'I'M c. 
 .Eii/ureiiifj an nimird. 
 
 By action considered, 223, i. 
 
 By action of assumpsit, case, covonant and debt, 22", i. 
 
 liy attachment, 221, /. 
 
 iSlay be enforced by the authority of a judge before time for moving 
 
 against expires, 2!il. 
 Such order to enforce to bo absolute in first instance, 231, b. 
 JSuhirifliiij a rcfcrenrr. , 
 
 r>y ci>nsent, 210, n. 
 Dv tlie court, 217. 
 (ienerally, 241 /, 24? c 
 Ride for, not to he made r.r jiarfe, 241, r. 
 " not to be made until submission is made a rule of court, 241, p, 
 Mfding a nuhmhsion a rule of court. 
 
 Agreements and submissions may be made rules of Superior, Equity 
 
 and ('ounty Courts, 24:>. 
 Courts have no jtu'isdiction over award until made, 244, o. 
 Not to bo made wliero subniii-siou contains words to the coutrnry, 
 214. 
 
 I 
 
774 
 
 INDEX OF SUBJECTS. 
 
 ARBITRATION AND AW ART)— { Continued) 
 
 Oral awards not included under the ordinary rule, 244, n. 
 To bo made of the court mentioned in submission, 244, o. 
 
 " " " " in which speeiiil case has been stated, if 
 
 mentioned in the award, 245. 
 "When submission is to bo made a rule of court, 244. 
 Matters in dispute, and matters of account, di.stin^^uislied, 209 d, 212 o. 
 iV'ist I'rius, lieferences at. 
 
 Agreement as to names of arbitrators ne<'d not be in writing, 214, a. 
 Arbitrators' names, if ajjrecd upon by tlie parties, to be inserted 
 in the order, 214. 
 
 If not agreed upon, to be fixed by the judije, 214. 
 Award may be moved against in first four days of the Term after 
 
 it '° made, 214. 
 Jndffe at Nisi Prius may refer long accounts of demand and set-oti", 
 213, M. 
 " is to determine what are long accounts, 213, I. 
 " may refer the whole suit or part, 214. 
 " may order the other parts to be tried in case of a partial 
 
 reference, 214. 
 " or may leave issues of fact to the jiuy, and the amount of 
 damages to the arbitrator, 214, 
 May be made at any time before venlict, 214, w. 
 Must not be made before entr\' of record, 211!, v. 
 Tower of arbitrator under, 215. 
 
 " of judge to refer, 215. 
 Time for moving against award, 214, (/. 
 Verdict to be entered, subject to reference, 214. 
 Posscstion, award of, • 
 
 May bo enforced as a "judgment in ejectme.it, 242. 
 
 When made, delivery of possession may be ordered by the court, 
 
 242 
 When such order is made, execution may issue thereon, 21", 
 Proceedings on an award, how conducted, 221, gi. 
 Publication of an award, meaning of, 230, x. 
 Jiummion back to arbitrator. 
 
 Application to remit award, when granted, 228, p. 
 Judge or court may remit from time to time the matters referred, 
 or part, 228. 
 " " may impose terms as to costs, 229, 230. 
 
 AVhat may be remitted, 228, y. 
 Revocation of jxiwer of arbitrator. 
 
 Ajjplication to revoke to be by rule or stmimons to show cause, 247 c. 
 Arbitrator's i)0wer, when not revocable witliout judge's order, 24(5. 
 Arbitrators are to proceed notwitiisfuiiding a revocation, if made 
 by a i)arty without leave, 247. 
 • " in such case'to proceed in absence of party revoking, 2 17. 
 
 " party so revoking is still entitled to notice, 247, d. 
 
 Setting oxide an award. 
 
 Application to set aside an award under a compulsory reference, 
 
 when to be made, 230. 
 Practice as to, considered, 225, j. 
 
 Rule tiisi to set aside an award to state the objections intended to 
 bo insisted upon, 693, d, 
 tip'^cial cases. 
 
 An arbitrator in proper cases may state his award in whole or in 
 part, as a special case for the court, 220. 
 " is not bound to state special cases, 219, «. 
 
INDEX OF SUBJECTS. 
 
 775 
 
 1 and set-off, 
 
 tiers referred. 
 
 19 intended to 
 
 ARBITRATION AND AVi KUD—{Conlmned.) 
 
 An arbitrator may decide lej^ul questions, whether of legal profes- 
 sion or not, 219, z. 
 Judgment on, is to bo entered according to the opinion of the 
 
 court, 220. 
 ■When special cases may be stated, 220, a, c. 
 Stayh^g procccdhigs in an aetioti. 
 
 Where an agreement to refer future causes of difference exists, when 
 
 application for, to be made, 21^2, 233. 
 To be after appearance and before plea, 233, o. 
 "What must be shown on the application, 2:M, r. h. 
 Rule to stay proceedings and refer may bo varied or discharged, 235. 
 Submission, &c., must bo proved as other contracts, 243, /. 
 JSubstiMe for arbitrators. 
 
 Appointment of substitute for single arbitrator, 23.'}, 
 
 " '• when the reference is to two arbitrators 
 
 and a vacancy occurs, 237. 
 Notice for appointment of substitute must be given to opposite 
 
 party seven days before the motion, 237. 
 Ni)tice, form of, 237, /. 
 
 I'ractice when arbitrator refuses to act, becomes incapable, or dies, 
 23.-.. 
 Survivor of two or more arbitrators, when he may make a valid award, 23S. 
 7'ime for makiiuj award, &,c. 
 
 Awards must be made in three months, unless the time is enlarged, 
 
 23i>, ;. ./. 
 
 Award under compulsory reference, when to be made, 230. 
 Court or judge may eidarge the time of making an awanl, 240. 
 If no time is stated, the eidargement to be for one month, 240. 
 Time for moving against award, 2oO, y. 
 Umpire. 
 
 Appointment of, bj' court or judge, 237, o. 
 
 Arbili ators ma\- appoint, unless tlie submission, <kc. prevents, 238, f). 
 
 I'ower of arbitr.ators as to appointing, 23(1, </. 
 
 Practice wiien parties do not appoint an umpire or third arbitrator, 
 
 23C.. 
 Practice when umpire or third arbitrator dies, 236. 
 When an umpire may enter on a reference in lieu of the arbitra- 
 tors, 242. 
 minetsen. 
 
 Attendance of, before arbitrators, 221 h, 249 /. 
 
 Disobedience of, to a rule or order, is contempt of court, 249. 
 
 Documents may be ordered to be produced b\', 219. 
 
 Wiiat documents a witness need not produce, 249. 
 Production of, 221, Ii. 
 What must be shown on an applicatidi to compel attendance of, 24S /. 
 Swearing of, to be by arbitrator or umpire, 250. 
 
 Even tliough tlio submission, «fec., limits the power otherwise, 
 
 250, o. 
 See CouxTV Court. 
 
 ARBITRATORS.— Sec AiuuTaATiox and Award. 
 
 ARGUMENTS IN TERM. 
 
 Setting down causes for. — See Setting dow.v Causes for Auoument, «tc. 
 
 ARREST. 
 
 Discharge from, SI, !i2. 
 See Capias, Writ of. 
 
 ir« 
 
 Ii 
 
 
776 
 
 INDEX OF SUBJECTS. 
 
 « 
 
 ARREST OF JUDGMENT — See Costs— Judgment, Auuest of. 
 
 ARREST. MALICIOUS.— See JIaucious Aurest. 
 
 ASSAULT AND BATTERY. 
 
 rnyment into court is not allowed in actions for, 118. 
 
 Exceptions, 118, k, I, 
 See Pleaui.ng. 
 
 ASSESSMENT OF DAMAGES. 
 lii/ the Clerk of the Court. 
 
 The clerk is to endorse his finding on the rule or order of refer- 
 once, 217. 
 is to deliver the rnle or order so endorsed to plaintiff, 217. 
 may appoint a day for liearinj^, 217. 
 may adjourn the heariujj, 217. 
 The direction for clerk to assess is to be moved for on affidavit, 21G m. 
 Form of affidavit, 216, m. 
 Form of order, 216, rn. 
 Interlocutory judgment is to be signed before the order is made 
 
 210 n, 211 q. 
 Judgment is to be entered and costs taxed, as on finding by a jury 
 
 217. 
 Matters of calculation, what are, 215, k. 
 
 I'roduction of documents to be enforced, as before a jur}', 217. 
 lleferences are only to be made at instance of plaintilf, 217, s. 
 Reference is to be to clerk of that court in which proceedings liad 
 
 been commenced, 21C. 
 AVitnesses, the attendance of, is to be enforced as before a jury, 217. 
 Iji/ a Jury. 
 
 To be assessed to day of verdict only, 586. 
 
 May be dispensed with when the amount is one of calculation only, 
 
 215. 
 "What are matters of calculation, 215, k. 
 See Judgment by Default. 
 
 ASSESSMENT, NOTICE OF.— 5ee Notice of Tkiau 
 
 ASSIGNMENT.— y&e New Assignment— Pleading. 
 
 ASSIZE, JUDGE OF.— See Judge of Assize. 
 
 ASSIZES, PROCEEDINGS AT. 
 
 Judge may order the business to proceed peremptorily the first day, 285. 
 
 " may postpone trial when necessary, 290. 
 See Record, Entry of. 
 
 ATTACHMENT FOR CONTE?'PT. 
 
 Against a sheriff for non-return of writ, 692. 
 For costs abolished, 692, ;/. 
 When absolute in the first instance, 692. 
 See Sheriff. 
 
 ATTACHMENT OF DEBTS DUE ABSCONDING DEBTOR. 
 Action hji sheriff to recover. 
 
 When it may be made, 499. 
 Averments necessary in declaration, in, 502, d. 
 Debts and demands, what, may be sued for, •197/)', 49SJ. 
 Defences that may be sot up to sueii suits, 5U0, 501 y. 
 Form of averment in declaration, 501. ' 
 
 Recovery by sheriff in such action to discharge the abscondinir 
 debtor, 501. 
 
INDEX OF SUBJECTS. 
 
 
 lRlavit,216m. 
 
 ilculrttion only, 
 
 first day, 2S?. 
 
 I the abscontli!:»r 
 
 ATTACHMENT OF DEBT3 DUE ABSCONDING DEBTOR— {Couiluued). 
 
 Shcrif. 
 
 Mny notify' (lol)tors not to pay tlio absconilitiiif debtor, luT. 
 
 If (Ifbt is paid after siicli iioticu, it siiall bo dt'oincd fraudu- 
 lent, 41»8. 
 Debtor sued after such notice may obtain a stay of proceed- 
 ings, until it is ascertained if tiiere in a deticieiicy, -liii). 
 And an issue may bo directed, 4lt9. 
 May sue for debts of abseondin;^ debtor, 500. 
 
 I'roceeds of suit, how lie is to deal with it, r)01. 
 
 Requisites of sheriff's indemnity, ."jtia. 
 
 Not bound to sue until indenmitied in double amount of debt, 
 
 5it2. 
 If iilaintifT recovers judi;;mont nijainst tlie abspondiiiij debtor, 
 and his debtor pays liim after notice, lie will be liable for 
 any deficiency, VJS. 
 In case of slieritF's death, the bond is to revert to his succes- 
 sor, r>os. 
 
 Action not to abate, but to be contimied by his sue 
 cessor, .")(»;>. 
 Snjjgostion of facts to be entered on record, 503. 
 
 Sec GaUNISUEE ruoCEKDlNOS. 
 
 ATTACHMENT OF GOODS, Ac, OF ABSCONDING DEBTOR. 
 In the County Court. 
 
 Proceedings in County Court to be as in Superior Court, ISO. 
 Who may grant, in County Court, 479. 
 In tue Sui'ERioii CouuT. 
 
 Affidavit required to obtain writ of, against absconding debtor, 478, 
 iia I, m. 
 Concurrent Writ. 
 
 Dur.ation of, 48.5, 1: 
 
 May be obtained, directed to other sheritTs than the original, 4S5. 
 Iklemorandum required on, 4.s5, h. 
 Need not be served or sued out in duplicate, 485. 
 To be niarlvcd " Concurrent," 4t*5. 
 To be tested as of same day as the original, 485. 
 Use to be made of, 185. 
 "When to be obtainable, 483. 
 CostH of sninrj out attachment. 
 
 May be ordered to l)e paid before prior judgment, 49('i. 
 Defendant is entitled to costs prior to execution, if prijved that lit- 
 was not an abscondini;- debtor, lOl. 
 Debt must be proved before a jury by assessment or on a reference, 484. 
 How to be proved, 484, b. 
 
 Distribution of pro(cv<h. 
 
 Persons furnisliing certificates of judgment in Division Court to 
 
 participate, 504. 
 When several persons sue out attachments to be ratable, oO:5 m. 
 Who may participate when tlie projjerty is insufficient to pay all, 
 
 504. 
 Wlien distribution may be delayed, 504. 
 
 Division Cotirt. 
 
 Creditors in, to share ratably on serving memorandaof judgment,492. 
 Creditors wiio liave attached in, may j'l'oceed to judgment, not- 
 withstanding seizure by sheriff, 49;i. 
 
 M 
 
r78 
 
 INDEX OF SUBJECTS. 
 
 ATTACHMENT OF GOODS, <feo., OF ABSCONDING BEnTO[l—{C<»itlnnecl.) 
 Officers to give up fjDodH to sheriff on demand under penalty of 
 double value of the goods. 4U1. 
 Ejcccution, 
 
 How to be endorsed, 484. 
 
 Not to issue without an affidavit of the time, debt, «fec., 4''4. 
 When verdict is less than costs of defence, defendant to have exe- 
 cution for the balanre, 494. 
 Food for cattle seized, who liable for, 401, v. 
 Inventory and ajipraiseinent, only one to bo allowed for, 4',)!?. 
 
 The issue of a new writ not to make a new inventory, itc, neces- 
 sary, 4i).'3. 
 Judgment, bef>)re a plaintiff obtains, he must prove the debt, 4 Si. 
 I'erUhnblc projierti/. 
 
 Definition of, 488, /. 
 
 Sheriff may demand bond for, from jdaintiff, and sell, 4S9. 
 Bond, amount for which it is to bo given, 488, 
 Sale to be by public auction, 489. 
 Siieriff 's discretion as to receiving bond, 490, t. 
 Sheriff is not to bo liable if proper bond is not given within four 
 days after demand, 489. 
 " is to restore goods if plaintiff fails to give a bond, 491. 
 Time within which bond is to be given, 490, w. 
 Valuation of, by sheriff, 488. 
 Persons having possession of goods of an absconding debtor are 1' ble in 
 
 the san-.i way as the debtor, 497, 
 Prior actioii.1. 
 
 Actions commencod previous to issue of writ of attachment are to 
 
 be proceeded with to judgment and execution, 495. 
 If judgment is obtained in snciii acUon before the writ issues, such 
 
 judgment shall have full priority, 496. 
 If such JudgmcMit appear to bo collusive or fraudulent, it may be 
 
 set aside, 490. 
 What must be shown on motion to set aside such judgment, 496, c. 
 Sheriff. 
 
 Costs under writ of attachment, action for, in what court to be 
 maintained, 49,3, /*. 
 
 Of appraising and inventory to be one dollar per day, 493. 
 May be recovered in an action after taxation, 493. 
 To be recoverable in first instance from plaintiff, 493. 
 To be ta.ved as disbursements to party paying the same, 493. 
 Disbursements for keeping g )ods seized to be allowed him, 487. 
 Division Court, goods received from, are to be accounted for after 
 his costs are deducted, 49*2. 
 " " sheriff may demand goods seized by officer-; of, ill 
 
 Inventory of goods seized is to be made by, 487. 
 Practice as to, considered, 487. i. 
 
 Two freeholders are to be calletl in to assist in making. .S-, 
 To bo returned by sheriff, signed by himself and the I'e 
 holders, with the writ, 487. 
 Seizure by,' of goods attached in the Division Court, 492^ d. 
 What sheriff may seize, 487. 
 Special bail. , 
 
 Application to put in, when it must be made, 486, o. 
 
 " what must be shown on, 480. 
 
 Court or judge may refuse the application to put in, 486. 
 How to be put in and perfected, 486. 
 
INDEX OP SUnjEOTS. 
 
 :79 
 
 tor arc 1' bio in 
 
 ATTACHMENT OF GOODS, .tc, OF ABSCONDING T)ETiTOR—{Cont!,mal) 
 
 Whon boil is perfected, defendant's gjoods, or tlio proceeds if sold, 
 
 nre to be restored, 480. 
 " " defendiint is to be let in to plead, and the 
 
 action is to proceed as on ii capias, 486. 
 " " slieritF may witltliuld goods on any lawful 
 
 ground, 48t5. 
 Time for putting in, 479. 
 iSVc Bail, f?i'EciAL. 
 Hiirpliin. 
 
 When to be returned tn defendant, 504. 
 Not to be returned if other writs concur, 605. 
 Writ of. 
 
 'Contents of, 4S0. 
 Date of, 481. 
 Form of. 480. 
 Issue of. to be in duplicate, and to bo so marked, 482. 
 
 One copy to be given to the sherilf, and the other u-.ed for 
 
 service, 4S2. 
 Only one writ to 1)e cliarged for, 482. 
 When writ may issue, 471). 
 JlcmoraniUun to be endorst'd on, 481. 
 Procedure upon, after personal or other service, 482. 
 Kenewal of, 482. 
 
 Tlule for, nuiy contain directions for putting in special bail, ITO. 
 Service of, other than personal. 
 
 Application for allowance of, 482. 
 Affidavits, required on, 483, m. 
 Further attempts to serve may be orderad, 48". 
 The judge juay order some act to be done to make service 
 good, 4SU, n. 
 To rcmirin in force six months, 481. 
 
 What plaintiff shall recover when the issue of tlie writ proves to 
 l)e unauthorized, 494. 
 See Attachment ok Deuts. 
 
 ATTORNEY. * 
 
 Admission of. 
 
 Arlides of clerkship to be left with Law Society, 614, (/. 
 
 Time witliin winch they are to be left, 014, d. 
 Attachment of, for not appearing, pursuant to his undertaking, 020 ni. 
 Change of, not to be made without an order, O'io, y. 
 Persons applying to be admitted to answer (pieslions, t'll.'i e. 
 Questions to be answered l)y persons api)lying to be admitted, 616. 
 " " " by person with whom clerk served, 016. 
 
 General rules as to, 614. 
 
 Lien of, set-off not to be allowed to prejudice, 652. 
 Name and reshleiice. 
 
 To be endorsed on writ of attachment, 481. 
 " " " summons, 10. 
 
 " " " ejectment, 510, s. 
 
 Striking off the roll for misconduct, 017, /. 
 
 U'hen struck otF rolls of one court, to be removed from the other, 618. 
 See Costs — C<k;n"ovit. 
 
 AUDITA QUERELA. 
 Defence by, 177. 
 Practice as to, considered, 177, m. 
 
 
 1 K 
 i I 
 
780 
 
 INDEX OP SUnJEOTS. 
 
 AUDITING COUNTY ACCOUNTS, 695, 5'.»(5. 
 
 AUDITORS OF COUNTY COURTS. 
 Fc-o to, fiin. 
 
 AAVARl). — Sec AiiiiiTnATioN and Awaiid. 
 
 BAIL TO Till-: ACTION. 
 ]»('tiiiit.i<>n of, ;{7, v, 
 
 Her 1>AII., Sl'KCIAL. 
 
 BAIL TO Tlli: LIMITS. 
 Dcliiiiiioii of, ;>.5, p. 
 
 BAIL TO TUr: SHERIFF. 
 Definition of, ;M, p. 
 ] n the County Court, to be regulated by the prnctico of Superior Courts, 3". 
 
 BAIL, aiM:(MAL. 
 
 Allowiinco for bail when order for inado, 3(5. 
 
 Amount for which bail are Ruble, 668. 
 
 Costs of opposiiii^, (U')4. 
 
 Not allowud if indemuified by defendant's nttornoj', 6(53. 
 
 7/'((i7 bu)i(I. 
 
 Condition of, 36. 
 
 Itcfore whom taken, 33, 30 r. 
 
 Exceptions to, may be taken, although plaintiff has ta! ■n an assign- 
 ment, <>00. 
 
 Time within which exceptions to be taken, 000. 
 
 Juili^muut may be signed by plainlitf on bond standing as security, 
 COO. 
 
 ]\Iistiikc in name of defendant, effect of, 0!)9. 
 
 Fending rule to bring in the body, plaintitf is not to proeeedon, 660. 
 
 i'roeeedings, when stayed on i)ayment of costs, 000. 
 
 Sheriff may sue on, in either court, 059. 
 Change of, not to I e made without leave, 062. 
 
 Of opposing allowance of bail, 604. 
 
 In aetilns where defendant is held to bail, 422, 42.5 ami riolcx. 
 Of former notice of justilieation, to be paid before bail justify on 
 a subsequent notice, 66'J. 
 Conntij Court actions. 
 
 I'nictice to be governed by that of Superior Courts. 4(). 
 Recognizance in, may be entered of record and nei./n. or debt lie 
 
 on it, 39. 
 Surrender of defendant in, 39. 
 llic'aralioii. 
 
 Against a person in custody, practice as to, how governed, 33. 
 Must bo served, 687. 
 Time for delivering, 674. 
 Definition of, 34, y). 
 
 ] )iHcharge of bail, when judge may order, and exoneretur to be entered, 38 .r. 
 Dischai'i/c of defendant. 
 
 Application for, not to be ex parte, 38, y. 
 
 Query, if in Chambers, 38, z. 
 Defendant not to be discharged because described by wrong name 
 . or initials, 05(1. 
 " when entitled to discharge on entering common appear- 
 ance, 674, 
 
norCourlH, 3:'. 
 
 tii.v'ii an assiu'u- 
 
 linjr a3 security, 
 
 ) mill iiotcx. 
 
 I bo entcreil, ^iS .'•. 
 
 INDEX OF SL-mrcTs. 
 
 781 
 
 15AIL, SPECIAL— (Cow/o./W.) 
 
 Jiul;;c', wlion to oril(<r, '»y writ of Buiiersciloas, ;;". 
 Uulo dirtclinri^iiiij; (k'foiuliuit to direct u suiifr^cilias to i--iif'. 073. 
 Di'lVtiiluiit should act promptly in luoviiiy; Ibr rule, iJ7i>, y. 
 Jiistif cation of fiiiil. 
 
 Adidavit of, form, C61. 
 
 Not to be sworn before defendant's attorney, .lO. t. 
 AVlien deemed insutlieient, P)('>7. 
 Allowance of, not to be allowed if bail arc indemnilU'd I'y defen- 
 dant's attorney, (KJIi. 
 Costs of, 001. 
 Excei)tion to. 
 
 riiiintiir to 'j^\\o two days' notico of, GOG. 
 
 Efl'eet of failure to do so, COO. 
 To 1)0 made in twenty days if no atlidavit aecompniiies, COO. 
 Xo exception to bo allowed afterwards, COO. 
 Notice of. 
 
 Costs of former notices to bo paid before bail justify under 
 
 a subsequent notice, tiOl). 
 Two days' notice sulHcient, 607. 
 Practice as to eirectinir, before Jud;;e or court, 30. 
 
 ."May be etfeeted before coniini.ssioners in some cases, ;;0, n. 
 Time fi>r ellectini:. 
 
 To be ju^titied within four days after exception, :;<j, Oi;7. 
 Transmission of bail -piece, »fce. 
 
 AVhen bail i's taken in country, ond the justificaticu is before 
 the court, 00-1. 
 Xotkc of. 
 
 Ktfect of, as to costs, '(i64. 
 Of more than two irrefjular, 062, 
 
 I'arties tirsl named in, not to be ehanjCfcd without leave, f.t',2. 
 Overholdiuij tenants, practice as to bail in actions against, 501, 005. 
 Perfectitiij, dctinition of, •Ut, (/. 
 
 Proceedings, when to be taken by plaintilf against the prisoner, C7:i. 
 Putl'tn'j in. 
 
 Definition of, ."5, q. 
 How put in. 35, 35 q. 
 
 I'laintitf may declare and proceed to judgment when put in, 35. 
 Wiien it maybe put in if sheriff is ruled to return cvpi cidjius, 661. 
 AVhen it may be put in, in actions commenced by writ of attach- 
 ment, 485. 
 In such cases, practice as to putting in to be as if commenced by 
 
 cajiias, 480. 
 Proceedings after bail is put in in such cases, 4S6. 
 
 JieCOr/nizilHCC. 
 
 Not to be taken by attorney for cither party, CC3. 
 Etl'eet of so taking, CO)?. 
 
 When treated as a nullity, OCo. 
 JSherlJ'. 
 
 Attachment to issue against, for disobedience of rule to bring in 
 the body, 602. 
 
 Rule to set aside attachment, if made bj' defeiulant, to bo on affida- 
 vit of mei'its, 001. 
 
 Further athdavits rei|uired on such motion if made by sheriff, CCl. 
 
 Certificate of, on surrender, 37. 
 
 Duty of sheriff as to surrender, 37. 
 
 Fees on surrender, 38. 
 
 k 
 
 I*' ' 
 ■It iiL,lJ 
 
 t* ' m 
 
782 
 
 INDEX OF SUBJECTS. 
 
 * * 1ft. 
 
 BAIL, Sli'X'IAL— (Cw«/;«M«/.) 
 
 lliil(! ngninst, to bring in the body, may issue in f orni or vncnii.jn. 6(V2. 
 
 " " to rotiirn writ, iimy issuo in viicatinii, fiTil. 
 
 ■\Vlien nilo will issue ngninst liiin aftiT in- lius lilt liia ollici.', 07(5. 
 Miiy sue on Imtl liond in citlicr Court, C5'J. 
 Mny UiUo bnil from porson urrestcd, Uo. 
 Muy assign bail bond, iiS. 
 til III) of proreedijiffs. 
 
 On notice of, rendering principal, terms on wliieii granted, OC'l 
 rending writ of error or appeal, wiien to be made, CC'.t. 
 iSurreiufcr. 
 
 iiail may surrender defendant to slieritf, 37, 
 C'ertitiente of, to be given liy HJierill, •il. 
 
 Fees of slieritf fur, ;;s. 
 Duty of slieritf as to, ccui.^idered. 07, ja. 
 Transfer of jierson Hurreudered in dilfcrcnt county from liis own. 
 
 terms of, '6'.\ 
 To sheriff not named in the writ not to require elianr^je of venue, HS. 
 AVIicn bail may render tlieir principal, if plaintilf sue.i on tlie 
 
 recognizance, tUJbl. 
 "When bail is rejected, surrender niaj- bo made without liew rocog- 
 nizanee, COS. 
 U'/'/V of f.rn-i(lio)i. 
 
 To Hx, may issue in vacation, 378. 
 Usually a ca. m., ;{7.S, x. 
 
 8ef' Attaciimknt — Capias, AVnir ok — Cattas a» S.vtisfaciesuum. 
 Ill I'.clioiis against overliolding tenants, fi(J2, hiVi. 
 t<ic 1']ji-:<;t.vikxt — Ovkiiiiolui:<u Te.na.nt. 
 
 li.VILEKS AND AGENTS. 
 
 Aclion against. — Si-i Non-Assumi'Sit. 
 
 BANK'S AND INCORPORATED COMPANIES.— 6Vc Revivor, Whit ov. 
 
 BILL OF EXCEPTIONS. 
 
 May be tendered by eitlier party in ejectment, 533, m. 
 
 »b'((' Ejr.CTME.NT. 
 
 BILLS OF EXCHANGE. 
 
 In actions on a plea of denial, must apecially traverse the fact of drawing 
 
 making, «fcc., 717, h. 
 See Nox-AssijMrsiT — Pleading. 
 
 BURDEN OF PROOF. 
 
 On whom it lies, 219, 0, 
 Hce Evidence. 
 
 CAPIAS, WRIT OP. 
 Co.mmi;n(ixu an Action. 
 Hall. 
 
 Jlaj- be taken by sheriff for party arrested, 33. 
 
 Practice as to, treated, 34, q. 
 
 County judge may aako an order to hold to bail, 33. 
 Concurrent writ may be issued, to remain in force while original does, 30. 
 Copies, 
 
 For each defendant arc to bo delivered to tho sheriff, SO. 
 
 Or to the coroner, 30 u. 
 Jjide, ti^le, li'c. 
 
 To be same as for writs of summons, 4. 
 
 To bo of day of issue, 2i). 
 
INDKX or SUUJKOTS. 
 
 'm 
 
 vnonti.)n,0(iO. 
 
 from his own. 
 
 o\it iR'W roco;;- 
 
 ISFACIENDCM. 
 
 fact of drawing: 
 
 CAPIAS, WRIT ()V—{Co,,l!„nfi/.) 
 
 l)icliiiatioii a;;aiiiHt, ilufciidaiits nrrostod under, v/Iumi to lii; iiiadi', ",". 
 ])iriiti()ii (if, iiiay In- to any Hlierilf in Ontarii), 1. 
 Jjischttrife friiin nfvint. 
 
 Wild may iipi'ly fi>r. .'U. 
 
 Aiiplicatioii may bo to n diffori'iit jnd'^o from tlio one that issued 
 lilt! order for, '•Vl. 
 
 Apiilication for irrL';j;iilarity to bo mado promptly, lil. 
 
 Mode of proct'C'din:;, !il, \V1, 
 Jjni'iUimi. 
 
 Of concurrent writs, 30, 
 
 To remain in force when writ set aside, 02 ' 
 
 uf ori'i'inal writ, 2l>. 
 I^iiiJorix'iiiitit on. 
 
 l)f name and residence of plaintiff's r.ttornej', 2'.». 
 
 " " of plaintiff in person, rcjuisites of, 2!>. 
 
 I'orm of endorsement, 41it, 4M. 
 Kn'^lisli writ ilintinguiohed from writ in tins country, 4, i. 
 J/ixtie of. 
 
 To lie by Process Clerk in Toronto, or Deputy Clerk of Crown else- 
 wliere, 5. 
 
 Not to lie issued except for money demand or debt, 4, /'. 
 
 To I" from each court nlternatelj', 5, 
 Plaintitf or ids attorney may order (Icfendant's arrest under, \'>\. 
 lliiuwul not necessary, but now writ to bo taken out, til). 
 Utrvii-f of. 
 
 Copy to lie served immediately after arrest, 00 v, 31, 
 
 To 1)0 served within two montlis from date <>idy, 'U. 
 
 To luive tlio effect of the service of ii writ of summons, 31. 
 AKfrr. .VcTMN ('OMMKN'ci:r>. 
 Costs of, 40 /, 41. 
 Fiirm of, l.i". 
 
 Cducuri'erit writs ma\' bo obtained, 40. 
 ]>;ite of exeeulion to l)e endorsed on, 41. 
 I'l-aetlce as to issue of, 41, )(, o, p. 
 Prtjeeedinirs to judgment to bo carried on without regard to issue of 
 
 caiiias, 41. 
 
 CAPIAS AD SATISFACIENDUM, WRIT OF. 
 
 Debtor nuiy be diseharj^ed cm the written authority of attorney, C79. 
 
 As to attorney's authority, <fcc., 87'.», n. 
 Discliar},fe should not bo granted by the attorney without tho consent of 
 his client, OT'.I. 
 
 Such consent should be in writing', 3S0, x. 
 
 Kot to bo •jjranted on attorney's authority if client notifies sheriff 
 to tho contrar}', 379. 
 Kew writ in case of e.xpiry, mode of obtaining, 378. 
 lleuowal of, not necessary, 378. 
 Teste of, to bo of day writ issued, 377. 
 ^Vrit of execution to fix bail may issue in vacation, ;i78. 
 Usually a ca. xa., 378, s. 
 
 CARRIli:RS.— 6'ec Not Guilty, Plea ok. 
 
 CASE. 
 
 When the verdict in an action of, is less than ^'s, plaintiff is not to recover 
 costs unless judge certify, 587. 
 
 Proviso if judge do not certify, 587. 
 S(c Costs. 
 
 » 1*'' 
 
 > ' '<(' I 
 
 
 '■i 
 
 
784 
 
 INDEX OF SIJllJECTa. 
 
 
 CASES. Sl'KCIAL.— .<?<■(• Ki-KriAi, ('a«<m. 
 
 CAUSIN or A(T[()X AIUSINM} OITT OF JUlUSDrCTFO.V. 
 
 Ai'iiliiNitioii for order to iirocfcd in uctioii!* for, iimU'riuli iiocessory for, 1 1, v 
 
 I'l-oci'diirc coiiHiilfivd, i;!, I»:i «•. 
 
 Wlii'ii dufoiidiiut U t'sloppcd tVoiii nsscHini;, U!, w. 
 
 .loindtT of. — Sif iloINDKIl OK CAlXK.i OK AlTlO.V. ^ 
 
 CEUTIl'K'ATKS OF COSTS. 
 Fofliirt of, TiHlt. 
 Sir C'oKi'rt. 
 
 CERTlORAUl TO REMOVE CAUSES. 
 Couiily Court jiidijo may ;;riiiit., C.nS. 
 
 His ordor for iimy lii' rcvicwi'd, etc.. by Siiiicrior Court judj^'o, (108. 
 l)i'fliiriition (/(■ ?/"ii') is not ni'i'cssui'y in cast's rcniovcii, 0ns. 
 Siipcrior (.,'onrt jiidy;i's may ordiT and may imiioso terms, COS, 
 ■\V hen causes may be removed, (108. 
 
 CIIAMriEllS.— ,<ste .kmiK in Ciiamiu;u»» — Jiikjks' Ciiamheiis. 
 
 CllANdi': OF ATTOIIXEY.— «« Attuunev. 
 
 ClIAN(;i: OF VEXUE.— .SVc Vknik, 
 
 CHATTELS, SPECIFIC DELIVEIIV OF. 
 
 In aclions for detention, return of liio s])(>cific chattel may bo ordered, lOiV 
 
 In what actions sucii order is made, -loti y. In? v. 
 
 Ill siieh cases dereinhint has not the option of payiiijj tlie vahie mid retain 
 
 iny; the chattels, 40(5. 
 Jloic cvforccd. 
 
 iJcfendant's fjoods and lands may bo distrained until be return the 
 clmttol-, 4otJ. 
 
 Or an execution may issuo for tho value of chatti Is, '100. 
 At tlie same time with tlio order, tiio plaintilf may have nn 
 execution for damages, interest and costs, 400. 
 CITIES. 
 
 Certain cities to be united to counties for judicial purnoses, 597. 
 
 CITY OF TORONTO. 
 
 United to County of York for certain purposes, 003. 
 
 CLERK OF ASSIZE.— .See Marshall. 
 
 CLERK OF COUNTY COURT. 
 
 Fees to, in cases tried in Superior Court, 005. 
 <SVc County Couut. 
 
 CLERK OF THE CROWN. 
 
 General orders as to his jurisdiction in Chambers, "JOS. 
 
 CLERKS AND DEPUTY CLERKS OF THE CROWN. 
 AppoinUncnh before. 
 
 Only one need be taken out for the same matter, G9t. 
 Proceedings on, may be ex, parte if party served with, do not 
 appear, 094. 
 Business, by whom only to bo transacted, in the offices of, 694. 
 Hours. 
 
 For keeping offices of, open, 694. 
 Rule repealed, and now rule substituted, "760. 
 Interpretation of words. Clerks, ifcc, 448. 
 Jiolls and reconh. 
 
 Forms of, to bo settled by Clerks, and notice of, conapicuously dis- 
 played in their offices, 695. 
 
 Wk 
 
;^i 
 
 INDEX OF hlJHJKClS. 78" 
 
 CLERKS AM) bKPrTY CI.KIIKS (iK Tlli" niO\'r.;~(Couih,ue<r.) 
 Not In HCfdrtliwu'c witli tlic notice*, not fo lie rt'cflvt'd, r,'.'5. 
 TinnKiii.Hsion of imiicrs to liouil olliuo by l>oiiuty, inoilo of, OUti. 
 
 Sni' lioi.i.w AMI llr.coiiim, 
 
 CLERK OF riiOCKSS. 
 
 JJiitiin iif, iix to ixfihiif wrilx. 
 
 To issue utiiii'liiiit'iits iii^iiiiiit n^aconiliiit; (i.'litoi's, 097. 
 
 " ciniiiis to (•iiiiiiiiciiic an action on iL'Ccivin;^ tlio jirojior 
 
 |m|icis, o'.tT. 
 " writ of Munnnons on rcccivin;^ iHMciiic, rt'.'rt. 
 " writs to c<iinin. iii c nction;* aiti'rn;itci y, OUT. 
 " oIIht wril.t, uc<:or(lini^ to cstMliii-licii practico, 6'.»7. 
 Jliill'n <</, an to iLlivfri/ of /iii/x rn, on wliicli lliiiicus I'orjnis, «tc., issued 
 
 daily to (.'riiwn ollicrs, ','.'i'.t. 
 f>ii/iis of, (M tit iftiitfti'rhj rrliirii of wrils issued, 7'W>. 
 Fees for (!Ncni|diliciitions, tins, /. 
 Hours of attcndanci! of, iliiH. 
 
 Ollicc copies of papLTs, on pn\ lucnl of n-'Miil fees, bt bu grunted, C'JS. 
 fSuiirciics wliiuli iiru proper fo Ijc uHowimI by, fi'JS. 
 
 COGNOVIT. 
 
 A!li iavit of execution, requisites of, filJS, o. 
 
 Alloniei/. 
 
 J''or defendnnt must l)e pres(Mit to explain it to defendant, 636, i. 
 Wlio nuiy act as su<;li attorney, (i!i7, j, 
 J)utie8 of atlornuy, f>;{7, k: 
 
 Aro to bo kept, in wbich particidurs of coirnovit nro entorod, S13. 
 'I'o bu open to inspection on payment of ii fee of twenty (rents, UM, 
 Copy, duly sworn, must be lilml in Ihi' projier olllcu witliin ono moiitb, or 
 
 co;;novit Invaliil, 31;{. 
 Defcasanco, if any, to wliich coijnovit is subject, to bu written ou auini.' 
 pajier with it, 6.'59 to, (JiU x. 
 
 Eulrij of final jitilr/tiinit on. 
 
 How leave for, is obtained, 039, r, s, t, u. 
 
 Entry of, in Superior Courts, 341. 
 " in County Courts, 343. 
 Warrant of attornej' distinguished from, 311, f). 
 
 COilMON LAW PIlOCEDl'RE ACT. 
 
 Acts ami'ndinjj, 585, 587. 
 
 Applit's to personal actions removed from Inferior Courts b}' cevtiorari, 1, h. 
 
 Courts bound to follow spirit of, 1, b. 
 
 Discretion of Courts under, 1, b. 
 
 Origin of, 1, 6. 
 
 lirpviilnl, 
 
 Section 252; amendment, ,i'.»I. 
 
 271 ; " r.h',1. 
 
 " 324; " 587. 
 
 " 328; " :)M. 
 
 Short title by which it may be cited, 1, a. 
 
 COMMISSIONERS IN OVERlIOLUlNtJ TENANT CASES.— iVt Ljkciment 
 
 COMPOUNDING PENAL ACTIONS.— .Ste Gkneral Rules ok Coliit— Pe.v.m, 
 AcrioNs. 
 
 COMPULSORY REFERENCE.— .S<-e AnDiTaATios and Award. 
 50 
 
 
 i 
 
 11 
 
786 
 
 INDEX OP SUBJECTS. 
 
 COMPUTATION OF TIME. 
 Cases as to, 704, /. 
 Clear days, how reckoned, 703. 
 County Court, Rules as to — See County Cocar. 
 
 In matters under C. L, P. Act, first and last days to be incluaive, 4t6, a, h. 
 How computed when last day falls on a day when Crown oiHces are 
 closed, 703, 
 
 CONCRSSION. 
 
 No rule for, required, 625. 
 
 CONCLTRRENT WRITS OF ATTACUMENT.— 5ce Attachment of Goods. 
 
 CAPIAS.— See Capias, Writ of. 
 
 " " SUMMONS.— &e Summons, Writ or. 
 
 CONFESSION OF ACTION IN EJECTMENT.—- See Ejkctment. 
 
 CONFESSION AND AVOIDANCE. 
 
 i\tatters of, to be pleaded specially, 721, 728 y. 
 See Pleading. 
 
 CONFESSION OF JUDGMENT. -&e Cognovit. 
 
 CONSOLIDATION OF ACTIONS.— &e Husband and Wife. 
 
 CONSTABLES. 
 
 Appointment of, when to bo made, 595. 
 
 CONTEMPT, ATTACHMENT FOR.— S^e Attachment for Contempt. 
 
 CONTINUANCES, ENTRY OF.— See Geneual Rules of Court. 
 
 CONTR.\CT. 
 
 Matters of confession and avoidance in actions on, to be ppeciallv pleaded 
 
 718 n, 719 o. 
 See Pleading. • 
 
 CONVICTIONS AND FINES. 
 
 Returns of, when to be made, 596. 
 
 CONVICTION OF "WITNESS. 
 
 How proveablc. — See Evidence at Trial. 
 
 COPIES OF PLEADINGS. 
 
 How certified. — Sec Pleadings. 
 
 CORONERS. 
 
 Fees for returning process, Ac, to be same ns for sheriff, 701. 
 Fee for summoning juries to be twenty cents c.ieh, 701. 
 Poundage to be same ns for sheriffs, 7lil. 
 See Sheriff. 
 
 CORPORATION, AGGREGATE. 
 
 Service of, Ac. — See Summons, Writ of. 
 
 CORPORATIONS. 
 
 la suits by or against, no ratepayer or employee is to be incompitenl at 
 witness, 598. 
 
 But may be challenged ns jurors. 598. 
 
 Except when corporation is a countr, 508. 
 See Evidence at Trial. 
 
 CORPORATION SOLE. 
 
 Service. — See Summons, Whit or. 
 
INDEX OP SUBJECTS. 
 
 
 pe ppecially pleaded, 
 
 to be inconip'.tenl h« 
 
 COSTS. 
 
 Peactice as to. 
 
 Abatement, recovery of costs for not proceeding after, 198, 
 Attorney's routs. 
 
 table of, 751. 
 
 Lien for, not to be prejudiced by set-off of costs or damages, 652. 
 Bail. 
 
 When defendant held to special bail may recover costs, 422, b, 
 
 428, 424, .;. 
 Defendant must be arrested before this section applies, 423, c. 
 Defendant must t"ke out a rule for such costs, 423, d. 
 When such rule is taken out plaintiff is not to issue execution 
 
 except for the balance over such costs, 425. 
 Defend -it may issue execution for balance when in his favor, 425. 
 Certificates for costs. 
 
 Form of, 480, w. 
 In actions of trespass, 427, 431. 
 
 In actions of proper competence of inferior Court brought in Supe- 
 rior Court, 433, 688, 589. 
 Clerk of Assize, fees of, 096. 
 
 Cognovit, costs of declaration on signing judgment on, 700. 
 Corotw. 
 
 Fees and poundage to be same as sheriffs', 701. 
 Fees for summoning each juror to bo Is., 701. 
 Counsel fees. 
 
 For attendance of counsel before a judge in Chambers not to be 
 
 allowed unless certified, 701. 
 No counsel fee to be taxed on a rule which can be obtained without 
 
 filing a motion paper in term, 700. 
 Only one counsel fee to be allowed between party and party, on 
 
 one argument, C99. 
 Table of fees allowable, 754. 
 
 When disbursements for, are large, affidavit of pa3'ment of, is to 
 accompany bill of costs, 700. 
 County Court or Division Court costs, when only allowed, 698. 
 Day, costs of. 
 
 When party giving notice of trial is liable for, 823. 
 None allowed wher^ there has been a countermand, 323,/. 
 14 Geo. II. ch. 1 (, not to be in force so far as relates to judgment 
 in case of non-suit, 323. 
 Demurrer, costs to be given to successful party on, 418. 
 Division Court. 
 
 Bailiffs and clerks of, in actions against, when plaintifT must obtain 
 
 a certificate for, 438. 
 Where action is of proper competency no privilege to be allowed 
 
 plainlitr, C,h2. 
 .^■■^ Infehkir Court. 
 Documents, costs of proving. — See PRonccTros- of Documents. 
 Ejectment. — See l)ocn.MEN"rs — Ejectment — Landlorh and Tenant. 
 Endorsed on terit of suttiinnns. 
 
 Maj' be taxed at defendants instance, 14. 
 
 Costs of taxatlcii to be paid by plaintiff if one-sixth is disallowed, 14. 
 English practice to prevail in cases not provided for by the C.L.P. Act,417. 
 Examinations and inspection, costs of, 272. 
 lExecufors. 
 
 When liable for, to defendant, 422. 
 
 " " they are to be recovered as in other cases, 422. 
 
 When relieved from pay'ng costs, 422. 
 
788 
 
 INDEX OF SUBJECTS. 
 
 3 
 
 COSTS— {Continued.) 
 
 Garnishee proceecTmgs, 
 
 Discretionary with jucl^e, 405, n. 
 See Garnishee Procekdisgs. 
 General rule as to costs, 650. 
 
 Istuet of law or fact 
 
 Costs of, to follow finding or judgment, 142, t, 143, C51. 
 
 If party entitled to general costs of the cause obtain a verdict on 
 a material issue, he is entitled to costs of trial, 652. 
 Otherwise not, 652. 
 Inferior Court. 
 
 When the action might have been brought in, plaintiff is not enti- 
 tled to Superior Court costs, 432, 437, o, 588, 699, 7G0. 
 
 This applies to Replevin suits, 433, h, 433, i. 
 
 When judge certifies that plaintiff had reasonable ground for pro- 
 ceeding in higher court Superior Court costs can be taxed, 
 436, 588. 
 
 Judge may certify to prevent defendant deducting costs, 436, m. 
 
 When judge certifies the case proper to be withdrawn plaintiff to 
 recover costs of court in which the action is brought, 433, ^•,434. 
 
 When judge does not certify plaintiff to recover only Inferior Court 
 costs, 437, o, 589. 
 
 When plaintiff is liable for act-off of costs, 435. 
 
 What is necessary to obtain a certificate, 434, u. 
 
 Judges of Superior Courts. 
 
 May frame rules for costs of County Court, 418, o, 439. 
 
 " " for fees to sheriffs in County Courts, 439, 
 
 May amend tariff of fees, <tc., in County Court, 44i). 
 May in such work associate with them certain County Court 
 judges, 440. 
 
 Judgments, nctiovs on. 
 
 Ajiplication for, when to bo made, 426, I. 
 
 Kule of court necessary for, 425. 
 
 Such costs not usually given, 426, m. 
 Judgment, arrest of, or 7ion obstante veredicto. 
 
 To be given to successful party as to the defect in pleading, 420. 
 
 Such costs may be set-off, 421. 
 Judgment by default, plea pleaded or demurrer Joined. 
 
 Costs to be given to plaintiff if successful on sci. fa. or writ of 
 revivor, 421. 
 Law Reform Act, costs of cases brought down under, 601. 
 Marshall, fees of, 696. 
 
 Mileage, affidavit of, required on taxation, 418, s, 700. 
 Nolle prosequi. 
 
 If entered when there are several defendants, each is entitled to 
 costs, 419. 
 
 W^luMi costs are apportioned, 419, b. 
 
 When defendant may hare costs as to part of declaration only, 420. 
 
 Judge may certify to deprive one of several defendants of costs, 419. 
 
 See Payment into Court. 
 Pleadings, costs of, when there are several on same ground of answer or 
 
 cause of action, 711. 
 Remand. 
 
 Costs of. to be costs in the cause, 823, g, 
 
 " to be same as paid on withdrawal of record, 323, h. 
 
^-li 
 
 INDEX OF SUBJECTS. 
 
 789 
 
 fa. or y>nt of 
 
 :h is entitled to 
 
 nd of answer or 
 
 COSTS— (Con/in««?.) 
 
 Costs of, rule for, to bo drawn up on affidavit without notice in 
 court, 325. 
 
 Form of rule, 325, j. 
 
 affidavit, 32fi, k. 
 Return of writ by sheriff, costs of enforcing, in discretion of the judge, 3SS,i\ 
 Scire facias. 
 
 Costs in, on award of execution, when to be given, 421. . 
 Only in civil cases, 421, I, 
 Sketch of law and practice as to, generallj', 41G, I. 
 Revision of taxation. — See Costs, Tax.ition of. 
 Several suits for one cauae of action. 
 
 Costs of one and disbursoinenti in others only taxable, 437, 4C8 r. 
 Exceptions, 437, q. 
 
 Provision not to apply to interlocutory costs, 433. 
 Sheriff's costs under attachments. — See Attachments ok Goods. 
 
 Suhpmna. 
 
 Only one allowed, unless reasonable cause is shown, 701. 
 Fee to attorneys on, exclusive of mileage, to bo fifty cents, 705. 
 Taxation of. 
 
 Affidavits of increase, what they must contain, 70l. 
 
 Who must make them, 701, 
 Appointment for, onlj' one necessary, 651. 
 
 Half an hour's grace allowed on, 651. d. 
 Attorney's witness fees cannot be taxed without an affidavit, 702. 
 Copy of bills of costs and affidavit of increase to be given with 
 
 notice, 651. 
 English Queen's Bench practice to govern in cases not provided 
 
 for, 698. 
 Notice of, when unnecessary, 651. 
 
 One day's notice sufficient, 651. 
 Principles of, discussed, 14, /. 
 Revision of, by Deputy Clerks, taxation may be had on two days' 
 
 notice, 438. 
 Deputy Clerk may be ordered to pay costs of revision, 439, 439 c. 
 Trespass, action of. 
 
 When verdict is less than eight dollars, no costs are to be given 
 unless judge certifies. 427, 587. 
 
 Wlien defendant may set off costs, 587. 
 When certificates will be granted, 427 , 427 r, 428 t. 
 
 When certificate is refused, defendant may issue execution 
 
 for balance, 431. 
 Certain trespasses not included, 431, 431 (/. 
 Writs, costs of, to remain as at present until altered, 418. 
 Tables of. 
 
 In Schedule B, to be used, previous tables being rescinded, 705, g. 
 Attornci/'s rosts. 
 
 Artidavits, 754. 
 Attendance, 754, 
 Briefs, 754. 
 
 Copies and service of notices, 753, 
 " " pli'adini,'s, 753. 
 
 " " writs, 751. 
 
 Counsel fees, 754. 
 Defendants, 754. 
 iJrawing [ileadingB, 752. 
 
 "r '"!']• i 
 
 ;i m 
 
 HM 
 
 'i :'■ 
 
 t T -:1 
 
 { i:v. 
 
790 
 
 INDEX OF SUBJECTS. 
 
 
 "-If,^ 
 
 COSTS— {Continued.) 
 
 Ejectment, 763. 
 
 Instructions, 762. 
 
 Notices, 753. 
 
 Subpoenas, 765. ■■» 
 
 Term fees, 763. 
 
 Writs, 761. 
 Clerks of Assize and Mar»hal, 
 
 In Chambers, 766 
 
 Of Crown and Pleas and Deputies, 755. 
 
 Of Process, 755. 
 Commissioners, 768. 
 Crier, 757. 
 Jurors, 757. 
 Sheriff. 
 
 Civil side, 756. 
 
 Schedule B, 757. 
 
 In replevin, 757- 
 "Witnesses, 758. 
 
 See Costs of the dat — Rulb to return Writ — Secckitt for Costs- 
 Sheriff. 
 
 GGUXSEL. 
 
 Addresses of. — See Addresses of Counsel, 
 
 COUNSEL FEES.— fi-ee Costs. 
 
 COUNTY ACCOUNTS. 
 
 Act amending Law Reform Act as to auditing, 612. 
 
 COUNTY CENSUS.— 5fie Town and County Census— Records. 
 
 COUNTY COURT APPEAL.— 5ee Appeal from County Court. 
 
 COUNTY COURTS. 
 Arbitration. 
 
 Judge to have same powers as Superior Court, 243. 
 
 See Arbitration. 
 Attachment of goodit. 
 
 Proceedings to be ns in Superior Court, 480. 
 
 Who may grant, 479. 
 
 See Attachment of Goods. 
 Certiorari. 
 
 When actions removed by, not necessary to declare de novo, 608, 
 
 When cases may be removed by, 008. 
 
 Coats in cases tried in Superior Court not to be increased, 695^ 
 ■Equity jurisdiction. 
 
 Repealed, 594. 
 
 Provision as to suits pending, 694. 
 
 Transferred to Court of Chancery, 594. 
 Jtcdffe. 
 
 Compulsorj' reference may be made to, 210. 
 
 Powers and duties of, under order of reference, 211, k. 
 
 Power of, to grant ii.torlocutory orders in Superior Court cases, 187. 
 Garnishee proceedings in, — See Garnishee Procekdinos. 
 Judgment debtor, County Court judge to have same power to examine 
 
 debtor as Superior Court judge, 390. 
 New trials, setting aside verdicts, Ac, practice of Superior Court t& 
 apply, 838. 
 
 See New Trials, 
 
''■9 
 
 INDEX OP SUBJECTS. 
 
 (91 
 
 roR Costs — 
 
 COUNTY- COURTS— iConthincd.) 
 
 Record, entry of. — See Record. 
 
 Rc'penl of certain enactnienta respecting, 693. 
 
 ILuleii in term. ■ 
 
 To be two days only when four days allowed in Superior Court, 447. 
 
 When to be made absolute, 447. 
 
 Wlien returnable, 447. 
 
 One lialf the time given in Superior Court to be allowed for, 447. 
 TariiT of costs may be framed by Superior Court Judge, 439, 440. 
 Siitiuffs. 
 
 For trial of issues, when to be held, 593. 
 
 Without jury, to be held in April and October, except in York, 607. 
 Terms. 
 
 Duration of, 447, f. 
 
 AVlien to be held.'oOS. 
 Trial of actions in a Superior Conri. 
 
 Power of Judge of Assize as to, fiOG. 
 
 Wlien made a remanct it may be tried at next County Court or 
 A -'ize, 606. 
 
 Form of entrj' of renianet, 606. 
 
 When vSuperijr Court j',' ' 's decision is final, C07. 
 Writs of error, practice as to, CO'J. 
 
 COURTS OF RECORD.— Sf-c Sbal. 
 
 COVENANT. 
 
 Action on. 
 
 Non est factum, effect of plea of, 7'20. 
 
 Other pleas must be specially pleaded, 720. 
 
 Ste Pleadi.so. 
 CRIME.— 5fe Evidence at Trial. 
 
 CROWN. 
 
 Power as to venue. — See Ven«e. . 
 
 CURIA ADVISARE VULT, ENTRY OF, ON RECORD.— ^^e Gk.veeal Rules 
 or Court. 
 
 DAMAGES. — Sec Assessment of Damages. 
 
 DAY, COSTS OY.—Sce Costs. 
 
 DEATH OF ARBITRATOR.— ^f'e AnniTRATioN and Award. 
 
 DEATH OF PARTIES (Plaintiff or Dkfenpant). 
 Not to cause action to abate, 187. 
 Suggestion of, to be entered o. record, 183. 
 Prat tice as to reviving, 18S, w, z. 
 See Revivor. 
 
 DEBTOR, ABSCONDING.— ^cc Absconding Dedtor. 
 
 DEBTOR, EXAMINATION OV.—See Examination of Judgment Debtor. 
 
 DEBTS, ATTACHMENT OF.— See Attachment of Debts. 
 
 DECLARATION. 
 
 Causes of action. 
 
 Several may be joined ia, 9(5, (j. 
 
 Wlien there may bo several counts on tho samo cause of action, 
 708, 7o9. 
 Commencement of. , 
 
 Form of, 100. 
 
 After abatement for non-joinder, 102. 
 
 Im 
 
 ' l. 
 
 \:-!-" 
 
 1(1 V, 
 
 Si- 1 
 
 1 
 
 M 
 
 1 
 
 1 
 
 1 
 
792 
 
 INDKX OP SUBJECTS. 
 
 & 
 
 DECL AR ATION— Conlln iicd. 
 Count II Court. 
 
 Declfirntion not invalid becnnse the total of all counts exceeds the 
 jurisdiction of ihu (.-ourt, 104, o, p. 
 Conclusion of, form of, lo], o, />. 
 Defendant may traverse \n\vt or whole of, ]'20. 
 
 Must be fded and served within twelve calendar months, d1, i,f. 
 From return of writ, US, k. 
 ForiM of, 100, 1(1 1. 
 
 On contract, 455. 
 
 For wrony;s indejjendent of contract, 455- 
 
 Departure from foiMns niven, effect of, 1 i'2. 
 
 Forms only inten(le(l as examiiles, 102, m. 
 
 Irrefjularities in, 1()0, }•, .s, t, n. 
 Lon^ vacation not to count for time to [dead, 99, p. 
 Kotice to declare pore:..jitorilj' sulUcient without rule or order, 98, I,m,n, 
 
 9'.), o, 00. 
 Service of, may bo mi>de in any county, 99. 
 Prolixity in, should be avoided, 103, n. 
 I^imc for declaring. 
 
 Declaration must be filed, ttc, in one year, 97 x, j, 98 k. 
 
 Exceptions, 97, h. 
 
 Time for declaring, 90, q. 
 Not to be filed in long vacation, 99. 
 Venue, how to be stated, 100. 
 Vexatious counts may be struck out, 96, q. 
 
 DEFAMATION.— &c Libel and Slander. 
 
 DEFAULT, JUDGMENT 'RX.—See Judgment by Default. 
 
 DEFENCE ARISING AFTER ACTION BROUGHT, 
 ilay be pleaded with defences arising before, 731. 
 
 If plaintiff confesses the plea, he is entitled to costs up to time of plend- 
 inr,, 731. 
 
 When not to npply, 732. 
 See Pleadino. 
 
 DEFENDANTS. 
 
 Entry of appearance by. — See Appearance. 
 Death of — Sec Reviv,.l of Judgment — Revivor. 
 
 DELIVERY OF INTERROGATORIES.— &c Inteurooatories, 
 
 DEMAND, PARTICULARS OF.— ^ee Particulars of Demand, 
 
 DEMAND OF PLEA. 
 
 Notice substituted for, 112, 5. ' 
 
 See Pleading. 
 
 DEMURRER. 
 Books. 
 
 What parts of pleading arc to be copied in, 627. 
 
 To be given to judges four days before the argument, 027. 
 Costs to be given the successful party, 418, a. 
 Defective, may be amended, 160,/. 
 Either party may demur for defect in substance, 159. 
 Frivolous demurrers may bo set aside, 166. 
 Form of, 165. 
 Joinder in, form of, 167. 
 
INDEX OF SUBJECTS. 
 
 793 
 
 exceeds the 
 
 DEMURRER— (CoH<;mW.) 
 
 Jiidumcnt on, to bo given accordintr to very riglit, 107. 
 Mnrguml Htiitements consiiJcred, 105, d, 
 
 lin]n'rfect, 165. 
 Notiee of exception, when to be given, C26. 
 A'olicc. 
 
 To join in demurrer to be in four daj's, 624, //. 
 
 May be delivered sepiinitely or endorsed on demurrer, 625. 
 
 Kli'eet of default, G'^."). 
 Ploadini; nnd dennirring togcHicr. — See Pr.EADiNO. 
 I'ritifipk's of demurring considiTed, 159, y. 
 Setting down for argument, 625. 
 Special objections formerly taken by, not to be regarded, 167. 
 
 Sec Pleading. 
 
 DEPOSITIONS. 
 
 Taken under order of a judge or commission to bo returned to clerk of 
 Crown and Pleas in which cause is pending, 643. 
 
 Ste I'^XAMIXATIO.N, ttc. 
 
 DEPUTY CLKRKS. 
 
 Duties of, as to transmission of records, 331. 
 " " delivery up of exhibits, 333, 0. 
 
 " records, 333. 
 " clerks nnd deputy clerks of crown. — Sec Costs — Records. 
 
 DESCENT CAST.— See Ejectment. 
 
 DETAINING GOODS. 
 
 Action for. — See Non Detinet, Plea of. 
 
 DILATORY PLEAS.— &(! Pleading. 
 
 DISBURSEMHNTS. 
 
 Aflidavil. of, required on taxation, 700. 
 
 Sec C'liSTS. 
 
 DISCHARGE FROM ARREST.— &'ee Capias, Writ of. 
 
 DISCONTINUANCE. 
 
 Defendant's consent not necessary to, 634, 
 Rule to contain undertaking to pay costs, 634. 
 
 If such costs are not paid in four months after taxation defendant 
 mtiy sign judgment of non jiros., 635. 
 See E.rKCTMENT — General Rules of Court. 
 
 DISCOVERY OF DOCUMENTS. 
 hiferrof/nfiirien for. 
 
 Ajjplication for, what must be shown on, 2.')9, u\ 261, o, 268, z. 
 Should be made on aflidavit, 268. 
 Jlust be founded on merits, 268, z. 
 When affidavit may be dispensed with, 268. 
 When affidavit of third party may be UHed, 262, «. 
 Corporation, ofticer of, may be ordered to state on oath the docu- 
 ments in his possession, 262. 
 Examination of parties and witnesses as to, 269, 270, 271. 
 Interrogatories. 
 
 Delivery of, 263, 264, p. 
 How to be answered, 266, r. 
 
 Refusal to answer what is sufficient cause for, 266, s. 
 Party refusing is guilty of contempt, 267. 
 When attachment will be granted for, 207, t. 
 
794 
 
 INDEX OP SUBJECTS. 
 
 
 DISCOVERY OF DOCUMENTS— (Con<JH»««f.) 
 
 Riijht to deliver wliere discovery could not bo obtained in 
 
 Ei]iiity, 264, y. 
 Should bo verified by affidavit, iCA, o. 
 To bo answered in tun days, 2l55. 
 Time for delivery, 2(53, v. 
 
 See ISTBRROOATORIKS. 
 
 DISCREDITINfr WITNESSES.— 5^fe Evidexcb at Trial. 
 
 DISTRTRUTlVi: PLEAS.- 5fl« Pleadixo. 
 
 DIVISION COURT— See Attaciimexts of Goods- Costs. 
 
 DOCIJ.MENT.'^. 
 
 Adiui-isidn of. — Sfe Admission of Doci:ments. 
 ])isc()V(ry of. — See Discoverv of Documf.nts. 
 Iiispt'cLion cf. — See Inspection of Docu.\iests. 
 Proof of. — i 'fl Evidence at Trial. 
 
 DOWER, ACTION OF. 
 
 Foi'in of writ of nssignmont of, 761. 
 
 Not to bo coininenced by writ of summons (soo however Dower Act of 
 
 1868), 2, e. 
 Writ of dower under nihil hahet abolished, 2, e. 
 
 DURATION OF WRITS. — 5ee Attachment, Writ of — Capias, Writ of— 
 Ejectment, Writ ok — Execution, Writ of — Summons, Writ of. 
 
 DUTIES OF ARBITRATOR.— See Arbitration and Award. 
 
 eject.ment. ^4iX£i^ Sll^ Th9< - C<ru 
 
 Action, of. ( 
 
 Commencement to bo by writ, 507. 
 Definition of, 606, a. 
 Who may maintain the action, B07, d, 
 " defend the action, 503, e. 
 Appcav(yvra. 
 
 May be entered within the time limited, 617, m, n. . 
 
 Koiice of title to be filed with, 517. 
 
 To be entitled in the office from which tho writ issued, 520. 
 Ey landlord, 618 o, 521 u. 
 
 15y person not named in tho writ, how allowed, 518. 
 Application by, to bo on affidavit, 618. 
 Notice of such appearance must bo served, 620, q. 
 Party so applyintr must show tliat ho is in possession, 619. 
 By person not in possession may bo struck out, 621. 
 
 Cu»fes.iinn of artioti. 
 
 By one of several defendants, 648. 
 
 How defendant may confess, 5't7. 
 
 Judgment on confession, 647, r. 
 Costs, ])laintiff to have costs if defendant fails to appear at the trial, 671. 
 Defence, practice as to limiting, 522, 623. 
 Descent cast, since 1834, not to bar toll or defeat any right of entry, 582, k. 
 
 DeKCfiption. 
 
 Jlay be amended on an application for better particulars of, 624, y. 
 
 If not reasonably certain, not to nullify the writ, 528, e, f. 
 Disconli nuance. 
 
 After notice of, defendant may sign judgment for costs, 646 e. 
 
 By one of several claimants, 546. 
 

 INDEX OP SUBJECTS. 
 
 705 
 
 wer Act of 
 
 EJECTMENT— {Co«<;;((m?.) 
 
 Miiy bo ninde on notice, 54 B. 
 AVliun it may bo niinle, 545, e, 
 EnroUivc/ jirocecd'niriK in. 
 
 IJc'foro judjjmcnt, not nooossnrj", 548, 549,/. 
 rrocecHJings in lieu of, 519, //. 
 
 " to bo enroUuil in case of appeal or eviilonce, 549, h. 
 
 Execitthn. 
 
 For costs or possoi3sioii, nmy bo in one or two writs, 53(), b, 
 I'lainfiff may oloct to liavo one or two writs, 530. 
 Formal ck'focts in plaintiff's title, wlien aiiieil, 5'J7. 
 hsni. 
 
 Issue Book, not necessary to attach notice of letter to, 626. 
 Forms of, for whole (No. 8) part (No. 4), 683. 
 To bo made np without pleadings, 625. 
 
 How to bo made up, 5-.5, <j. 
 To direct sheriff to summon a Jiu-y, 62ti. 
 Joint tenavtH and tenants in common. 
 
 Notice to bo given in actions by or ai^ainst, 5157, x. 
 Affidavits to be filed with, 537. 
 Entr}' of rule on, 637. 
 
 How j)arties are entitled according to finding. 538. 
 Time within which notice ia to be given, 537. 
 Judgment. 
 
 Effect of, 549, j. 
 
 Execution, on finding for defendant, to bo entered as for claimant, 
 
 535, iv. 
 For claimant, effect of, 536, b. 
 Forms of. 
 
 J3y default for part of land, 583. 
 whole lands, 582. 
 of bail, 584. 
 In case of discontinuance, 583. 
 For claimant not proceeding to trial, 584, 
 On confession, 584. 
 Time to be limited for entry of, by judge, 535, r. 
 
 Not to exceed fifth day of succeeding term, 535, s. 
 If no time is limited to bo fifth day of succeeding term, 535. 
 By Default. 
 
 When it may be signed for whole land or part, undefended 
 
 for, 524, /, m, 525, n. 
 AVlicu service is not j)ersonal, order is required for, 070. 
 \Viien service is personal what must be filed on, 670. 
 Jurisdiction of court as to proceedings in, to bo same ns under old act, 
 
 580, t, V. 
 Landlord. 
 
 Aiijiearance b}', 518, o, 
 
 " to state that he appears as landlord, 621, u. 
 
 Notice of, must be given, 52o, (j. 
 Other remedies of, not affected by, 573. 
 AVhat defences may be Set up by, 521, «. 
 When he may bring ejectment in County Court, 673, p. 
 Limiting defence. 
 
 Defence may bo limited to part of the property claimed, 522, xti. 
 
 Part claimed must be described with reasonable certainty, 522, 
 Notice, form of, 522, ?/. 
 
 to be served in four days after appearance, 522, 623, t. 
 
roG 
 
 INDEX OF SUBJECTS. 
 
 ■A,^ 
 
 EJECTS! ENT— ( Conthntc.l. ) 
 
 Si'i'vico (if, when tliero is no nttornej', 523. 
 
 ilexne profif.t. 
 
 WiiiMi itroof of, niny be offered, TiOS 
 
 Wlien jud^nient fur. iiiay bo signed, 50(3. 
 See Mesnk I'uokits. 
 
 li^vii-snif. 
 
 Defendant to be entitled to costs of, 532 //, T32. 
 
 To be entered if defendiint iijipenr and pliiititilf do not, M2. 
 Notico of iipiiearftnco by piirty not named in tiio writ must be .served, 520, </. 
 
 Nutice of p/iiiiitiff's cla'nii. 
 
 Wiiut it is to contain, 511, b, 512, c. 
 
 Not to contain more tlian one mode of title \;itliout leave of a 
 
 judge, 512, e. 
 Not to contain pnrticulnra of deeds claimed under, &c., unless by 
 
 jndyie's order, 513, y. 
 Plaintilf is to be confined at trial to proof of the title set up in his 
 notice, 513. 
 Kot'ice of defendanCs title. 
 
 Notice of, and denying plaintiffs title, to be filed with appearance, 
 517, 517, n. 
 Defendant to be bound by his notioe as plaintilTby his, 517. 
 
 Ovcvholdhiff tenants. 
 
 Bail, op])iication for, to bo by rule or aninmons, 504. 
 
 What must bo shown on, by landlord, 563, I, in, h. 
 Condition of, to be for payment ol'co.-itH aTul (liiiiiagcs, 5C4. 
 Form of bail piece and aeknowlegment, ."itl."). 
 Enlargement of time to find bail, how obtained, 5()S, c. 
 If not obtained, and bail not put in in time, judgment may be 
 
 signed, 505, c. 
 Tenant nuiy be required bj' notice to find, 502, 7i. 
 Commissioner. — Judge or court may order a writ appointing 
 o commissioner, 670. 
 
 Duties of jury and witnesses on inquisition before to be 
 
 sworn, 571. 
 To issue precept to sheriff to summon a jurj', 570. 
 Verdict to be in writing, 571, s. 
 
 "Writ and evidence taken by, to bo returned when the inqui- 
 sition is completed to clerk of Crown and I'leas at Toronto, 
 571. 
 Demand of possession must be made, 671. 
 
 Form of, 502, e. 
 Execution may be ordered in six days after verdict in some cases, 
 
 567, V. 
 Inquisition, notice of holding, to bo served three days before the 
 
 inquisition is held, 570. 
 Issue. — What issue is to be tried by jury, 570. 
 I'ossession, when landlord may be placed in, 571. 
 
 Precept to place landlord in possession may be set aside, 572. 
 
 Time for moving against, 572. 
 Tenant to be restored if precept set aside, 572. 
 Rules to regulate proceedings against, may be made by judges, 572,(7. 
 Summary remedy against, 568. 
 
 Application to be on aflidavit and to bo made in vacation, 569. 
 
 What must be shown on, 569, h 
 
 Judge or court may order writ to issue, 569. 
 
 To what tenancy this applies, 568/, 569 </, 
 
INDEX OF SUIUECTS. 
 
 707 
 
 jet aside, 572. 
 
 k,iect.mi:nt— (f.'o„/;,.„«/.) 
 
 WiuK's.'Jos (III iixiuisitioii to he mihji'ct to jx'nalty for fulso flwcaring. 
 n~■^, ti. 
 May l)i; ('(imtnitte<l for non-alli'inlaticp, f)":-!. 
 I'arliculiirs ofclainior (li'fi'iisi- t,ol)i' aiiiii'xiMl Id rrcord l)y clainiaiil.ftSO.n. 
 I'l'i-oii not iiaiiu''(l ill writ ohtaiiiiii;.;; Icavi' to ajipfar to j^ivii notice of 
 
 Mii|ii'araiu'(', (17 1 . 
 riCTo^ni/aiicc to 1)1- taken as in i)ail in Superior Conrts, 5fiS. 
 
 Limitation of action ii|ion, 5i'>s. 
 lli^lits of perilous saved wliose riyiit of entry liad been taken away 1st 
 
 .lannary, l.s;ii'i, 581, h. 
 Security for coMts, ft7H. 
 
 Special cases, on consent and by leave, may be had ns in ollior actions, 528. 
 ,^jiif'!cil reriltrt. 
 
 May be rendered by jury in eieetment, 532, I. 
 \\\\\ of exceptions may be tendered to, 6U2, m. 
 Slit;/ o/ prnrri'dii'i/.l 
 
 in action liy landlord, wlieii rent is paid, .059. 
 M'ben application iiui.st be made, 5iiO. a. I. 
 'J\nmd. 
 
 rcnalty for not informing; liin landlord of service or issue of writ, 
 
 551, 552, <i, r, «. 
 Notice b}' tenant, form of, 651, p. 
 1 r'dd i)i. 
 
 ihirv may lind verdict for claimant in spito of formal defect in title, 
 
 527, e". 
 IMaiiitilF may recover without jiroof of title in certain events, 532. 
 To proceed as in other actions, if no s])ecial ease is aj^reed on, 52'J, 7i. 
 Wlien defendant may i^ive notice to |ii'oceed to, Cltl. 
 
 '• " may si^;ii judii'incnt for not jirocccdiiii; to, 547. 
 
 When tlu^ jnd^'c may direct tlie jury to find for ehi.maiit, notwith- 
 standing;- (h'fect in title, 527, 52H, </. 
 
 \'erdict in sncii case, how to be endorsed, 5'JS. 
 Such verdict not to be evidence in action for mesne profits, 
 528. 
 What ([uestioii is to bo tried, 52'J, j>. 
 
 FiU'in of summons, 53], e. 
 
 " sug'ii,-estion, 5.31, /. 
 
 Practice ns to, 531, h, d. 
 To be sugijested on tiie roll, 531. 
 ViriVd. 
 
 Form of entry of, 530 <y, 5^3. 
 
 To 1)0 accordin;:^ to the tact when tiile that existed when writ issued 
 lias ceased to exist at trial, 5.'lo /, u. 
 
 In such case claimant to have judgment for costs, 6S0, u. 
 ViX't/ioii.s (/r/'('»('(,v. 
 
 Form of notice when defeiulanls are mere intruders, 527. 
 How to be prevented, 520, u. 
 Writ of. 
 
 Not abolished, 2, c. 
 Certain old writs al)olished, 580. 
 
 Contents of. — To contain names of all persons in whom title is alleged 
 to be, 508, h. 
 
 To command defendants to appear in sixteen days, 510, k, I 
 To contain notice that in default judgment will be signed, 
 (tc., 510, m. 
 
 i -ml 
 
ros 
 
 INDKX OF hUHJKCra. 
 
 life', i: 
 
 ■■■! 
 
 MS y 
 
 EJECTMENT— (Con<;«Mf</.) 
 
 l)fNcrij)ti()ii of property in, to be reasonably cnrtikin, fiOS. 
 Dirt'i'tion of, to bo to pcrsiins in aetUHl jtossession, 607, /. 
 Duration of, to remain in force three months, 510, y. 
 Endorsements. — Name nnil abode of attorney, ifcc, to bo tndoraod 
 on, CI 1. 
 
 Or of party if not Issued by attorney, 511. 
 Other eDdorsemeuts to be made, as in poraonal actions, Bl I 
 Form of, 682. 
 
 " to be closely followed, 610, )•. 
 Infants, liow to bo sued out by, rAH, c. 
 Issue of, to be from otiieer of county where landd lie, 610, p. 
 
 I'roeetjdinjTM to ascertain whether the issue is by iiu'''oi-ity 
 to be hiul as in personal actions, 511. 
 Notice of plaintiff's title is to be attaelied to, and to every coiiv of 
 
 it, nil. A. ^ 
 
 Projierly ehiimed in.is to be described with renso:iaI>le cert)ii:ity,508 
 .Service of, to bo served as declaration in old practice, ol.'i, i. 
 Or as a judi;e niny direct, 614. 
 On com[ianie8, 510, /. 
 TerHonid service, what is, 51-1, i. 
 Substitutional service on dau-'hter or other member of tie; f.iuiily, 
 
 oin, /. 
 
 On sorvnnt, nsont, clerk or employee, 615, i. 
 
 On wife of defendant, 514, 7. 
 
 ■\Vhen there is no precedent to be provided for by judge's 
 
 order, 610, i. 
 ■Where there are several defendants, 515, 
 AVhere possession is vacant, 51G, /c. 
 Teste of, 5Ui. 
 See Lanulokd .\nd Tenant — Mortgagee — Revivor — Security nm Costs, 
 
 EMBARRASSING PLEADINGS.— See Pleapinos. 
 
 ENDORSEMENTS ON WRITS —5ce ArTACiLMuyT, Writ or— Cai-:as, Writ 
 OF — Summons, Writ of. 
 
 ENFORCING AWARD.— 5ce Arbitratio;? and Award. 
 
 ENLARGING REFERENCE.— See Arditration and Award. 
 
 ENQUIRY, WRIT OF.— See Writ of Enquirv— Sheriff. 
 
 ENROLLING PROCEEDINGS IN EJECTMENT.— See Ejectme.nt. 
 
 ENTITLING PROCEEDINGS.— See Pleamnos. 
 
 ENTRY OF APPEARANCE.— See Aitearance. 
 
 ENTRY OF JUDCiilENT.— Sec Judgment, Entrv of. 
 
 ENTRY OF RECORD AT NISI PRIUS.— Sec Records. 
 
 ENTRY OF VERMCT.—S.c Verdict, 
 
 EQUITABLE DEF E N C ICS. 
 
 Judgment on, 'pleadable in bar or estoppel at law or in equity, 5S). 
 
 EQUITY JURISDICTION. 
 
 In County ('Ourt, rejjealed, 504, 
 Transferred to Court of Choneery, 504. 
 See County Court. 
 
 EQUITABLE PLEADINGS.— See Pleadings. 
 
INDEX OF SUIUECVS. 
 
 709 
 
 ERROR, WRIT OF.— S-^e Writ of Enma. 
 
 ESCAl'K, ACTION I"01l.— &« Not Guiltt. 
 
 EVIDENCK. 
 At the Tisial. 
 
 linrik'u of proof, on whom it lies, 291, c, 
 C)'oas-cxiiminaliim of vUikmis at Irotl. 
 
 Wlii'ii uitiicsH miiy bi; cxainiiii'd ns to pruvious Btijtcinpnts ruJuced 
 to writinyf, wUlumt bt-iiifj; mIidwh the writitij^, '2',i5, 'I'.t^, /. 
 
 The wrUiiiy- iiuist ho sliowri if it \n iuteniled to {"(nilrailii't him, 296. 
 
 'J'lie judge luiiy require production of such writinjj, '200. 
 Convietlou. 
 
 How provious conviction of witiii-s? inny be proved, 'i'Jl. 
 
 l\'c to clcrli for certiticiitu of conviction, 2'.'8. 
 Wliat curtiticate siiould contain, 208, r. 
 
 Evidonci) of, bcsiilcs curtillciitc, 2'.*8, u. 
 Cori)i)n'.ti()n, i-miilo^-cus of, not inconii^ctent to give evidence, OOH. 
 C<uin.-ii'l, ri^'ht of, to sum up, 2'.lt. 
 C'rimti, witness) not to be excluded for, 297, p. 
 J/itcreditiuf/ viliit'n.i. 
 
 A party cannot impeach liis own witness by jji'run'al evilonco of 
 had conduct, "ii2, /. 
 
 Wlien adverdo witness inny ho contradicted, 303, 
 
 Wlien contradictory .statements may be provetl njyainat, 303. 
 
 Wliat is an adverse witni.'ss, .".OS, _;, k. 
 
 AV lien witness may be contradicted, und practice as to, 301 in, 305 r, u. 
 Docuimnts, proof of 
 
 How documents may he proved when attesting witness is not needed, 
 2y8, 21)'.). 
 
 Wlien attestation of documents is necessary, 302, [/, 
 
 Wlien comparison of handwritinij is allowed, 3Ut», oOl, e, f. 
 
 VVlien submitted to the jury, 302, r/. 
 
 Intention to adduce, vhen it nuist bo manifested, 290, (I. 
 See Admission of Documents — Witnesses. 
 
 EXAMINATION OF JUDGMENT DEBTOR. 
 Conduct of, 300. 
 
 Corporation officers, examination of, not allowable under 2S7tli sec, 889, ». 
 County Court judo'es, powers as to, in County Court cases, 300. 
 Docuinents may he ordered to lie produced on, 389. 
 When application may be nuidu for, 3S9. 
 What should he shown on, 38!), (. 
 To whom api)liciition to be made, 3S9. 
 To be as to debts owing to debtor, 880. 
 
 EXAMINATION OF PARTIES OR V; I IN ESSES. — /See Intkrhooatories — 
 Motions on Akfidavits. 
 
 EXECUTION. 
 
 Completion of, 372, v. 
 
 Dii-ection of, to be to any sheriiT, '.JA. 
 
 Dischni'ge of debtor, payment to sheriff to discharge debtor to extent of 
 
 payment, 3f)8. 
 Divlslun Court. 
 
 Not to issue in, in actions within the competence of, on judgmenta 
 
 of less than forty dollars, 358. 
 Mode of issuir"'^ on judgments over forty dollars, 358, e. 
 Dov.'er, writ of assiguinent of, included in writs of, 355, I. 
 
800 
 
 INDEX or SUBJECTS. 
 
 ■■:^f^— - 
 
 
 EXECUTION— (Co«//n«c</.) 
 
 liiiratiori of wi-its of, 355. 
 
 Elfoi-t (if, iKit i;lian<^e(l by .31 Vic. cap. 25, 592. 
 
 Endorsi'iinMit, on writ of, 653. 
 
 Wliat it should contain, 653, v. 
 AVIrmi not sued out by an attornc}-, 654. 
 E.Keniplion from seizure, what goods are inchided, 360. 
 
 Cooih, mtle of, under. 
 
 To be advertised, 360. 
 
 Effect of want of proper advertisement, o60, ' 
 Ei;;l>t days' notice of sale to bo given, 3G0. 
 Inventory of, to be made out, 30O. 
 
 Lnmedlate execution. 
 
 Cost.i of taxation on, 347, z. 
 
 Wlien to be ordered, 346, v. 
 
 AViit'n juilge of County (?ourt may order, 346, w. 
 
 ^Villlt alfiduv't:-: are required in support of, 347, x. 
 
 Agiiinst overhoiding tenants. — .SVc K.uxtme.nt. 
 Incipit lit att'p of an execution, what is, 371, t. 
 
 Issue of. 
 
 "Cases collected as to, 351, 352, 853, 354, c. 
 "Wliere to be issued from, 351. 
 
 When necessary to sue out, in particular count}-, to cliiinge bail, 355. 
 Of writ of lands and jjoods, may be simultaneous, 358, o'Jl. 
 When Ji. fa. goods may issue, 653. 
 " " lands " t>53. 
 
 Prtcc'ipc to be tiled on issuing, 633. 
 La;uh, nnlc of, under. 
 
 Adverlisement of, to bo published six months in G.izctte, 370. 
 And in a paper in the county where the land ies, 371. 
 ■\VIiat it nnist specify, 37), q. 
 Not to take place until ,/?'./'/. goods is returned nnlla hoiui. 592. 
 XuUa hoiia not to be returned until goods iire exhausted, 592. 
 Not to be exposed for sale until twelve months after writ was deli- 
 vered to sheriff, 359, 592. 
 What estates may be sold under, 358, q. 
 " lands " " " 359, fi. 
 
 Money and securities, sheriff's duties, itc, as to seizing, 367. 
 Morti/iii/or. 
 
 ills interest in lands may be sold under, 363. 
 
 Construction of word " mortgagor," in 257th section, 363, d. 
 
 Effect of such sale, 363. 
 
 I.iiability and duties of purchaser, 364. 
 
 Etl'ect of purchase by mortgagee, 365, k. 
 
 Etl'ectof mortgagee enforcing pay nientof mortgage aftersuch 8alc,365 
 
 Ills interest in goods may be sold, effect of, 366. 
 
 His discharge of mortgage, certitieatc of, 364. 
 
 AV'ho is to discharge in ease of death of mortgagee, 364, h. 
 Payment to sheriff. 
 
 To discharge debts to amount of payment, 308. 
 
 Sheriff to pay over to e.vi^cutiou creditor monej's received until 
 
 debt is i)aid. 368. 
 If any durplus, it is to be paid to execution debtor, 868. 
 Priorilt/ of. 
 
 As between Division, Superior and Countj- Courts, 369. 
 Practice aa to, 369, 370. 
 
INDEX OP SUBJECTS. 
 
 801 
 
 ihange bail, SSn. 
 358, o'Jl. 
 
 a/ctte, 370. 
 id Aus, oTl. 
 
 r//,t hn),.i, 502. 
 mnlwl, 5V»2. _ 
 ,cr writ was deli- 
 
 ;;r,7. 
 
 lion, R«2, t^ 
 
 lu"tersiu'lisale,36.j 
 Irttragee, 364, h. 
 
 [fa vc'cc'ived until 
 |r, 308. 
 309. 
 
 EXECUTION— ( Continued. ) 
 
 ■\Varrant of execution in Division Court binds goods only from time 
 of levy, 369, I. 
 Property. 
 
 What is sei/able under, 344. n. 
 
 Judge may order immediate sale of, 847. 
 Renewal of. 
 
 To be during continuance, 356. 
 
 Memorandum of, to be made in margin of writ by proper clerk, 357, o. 
 
 Effect of renewal, 357. 
 
 Writ may be renewed more than once, 367, «. 
 
 Production of writ to be evidence of, 358. 
 Mcriff. 
 
 Not bound to sue on securities unless indemnified, 309. 
 
 Expenses of bond of indemnity to be deducted from amount real- 
 ized, 309. 
 
 Effect of slieriff leaving office before execution completed, 373, b. 
 
 When sheriff dies during pendency of writ against lands, 373 c. 
 Slock in Banks and Corporations. 
 
 How seized and sold, 361, 361 r. 
 
 When seized and sold, to be transferred by proper officer to pur- 
 chaser, 362 
 
 Purchaser, after transfer, to bo entitled ta all dividends, &c., 362. 
 
 Mode of transfer of stock sold, 302, /, m. 
 Teste of writ. 654. 
 
 Day of teste inclusive in computing duration of, 355, m. 
 Writ of, to fix bail. — See Bail — Capias ad sat. 
 See AxTAciiiiEKT of Goods — Ejectment — Revival of Judgments. 
 
 EXECUTORS. 
 
 Proceedings as to assets in/uluro to be in nature of writ of revivor, 414, w. 
 
 See Co£T8. 
 EXHIBITS. 
 
 Not to be delivered out of court except on judge's order, 333. 
 EXONORETUR. 
 
 Practice as to entry of, on bail-piece, 38. 
 
 See Bait,. 
 
 EXPRESS COLOUR. 
 
 In pleading, abolished, 113. 
 See Pleading. 
 
 FALSE IMPRISONMENT. 
 
 Payment into court not allowed, 119. 
 
 Exceptions, 119, m. 
 See Pleading. 
 
 FEMALE PLAINTIFF OR DEFENDANT.— Sec Reti''ou. 
 FEMME SOLE AND COVERT.— &e Revivor, 
 
 FINAL JUDGMENT.— See Cognovit— Judgment. 
 
 FOLIO to mean 100 words, 703. 
 
 FOREIGNER. — /Tjc Alien — Absentee — Summons, Writ of. 
 
 FOPM. 
 
 Affidavit. 
 
 Of justification of bail, 664. 
 
 On motion to refer assessment of damages to clerk of court, 216, m* 
 Of service of notice to aOmit, 282,/. 
 61 
 
 
802 
 
 INDEX OF SUBJECTS. 
 
 Ik 
 
 i,' 
 
 TORJA— (Continued.) 
 Appearance, 60. 
 
 Averment in declaration ia an action by sherff for debts duo an abscond- 
 ing debtor, 501. 
 JJail-pieco and acknowledgment in proceedings against overholdini; 
 
 tenants, 565, w. 
 Capias. 
 
 And of endorsements, 449, 450. 
 After action commenced, 40, 1, 
 
 Ad satisfaciendum on rules for payment of costs, Y44. 
 On rule for payment of money, 743. 
 On rule for payment of monej' and costs, T43. 
 On judgment for plaintiff, 743. 
 Commencement and conclusion of declaration, 100, 101, a, b. 
 
 Costs. 
 
 Certificate of, 430, w, 589. 
 Tables of, 752 to 758. 
 Debt attachment book under sec, 199 C. L. P. Act, 750. 
 Declaration. 
 
 On contract, 455. 
 
 Wrongs independent of contract, 455. 
 Commencement of, 100. 
 Conclusion of, 101, a, b. 
 Demand in proceedings against overholding tenants, 562, e. 
 Demurrer. 
 
 Of entry after judgment by default on demurrer, when damngci' 
 
 are to be assessed by County Court judge, 738. 
 Of joinder in, 167. 
 Dower, of writ of assignment of, 761. 
 
 Endorsements on writ of summons of plaintiff's claim, etc., 13, 451, 452. 
 Fi.fa. 
 
 On judgment for plaintiff in assumpsit, 742. 
 " " in debt, 742. 
 
 " " against lands, 742. 
 
 Against garnishee, when defendant has appeared, 745. 
 
 " " " " has not appeared, 745. 
 
 On rule for costs only, 743, 
 " " money and costs, 743. 
 
 " " costs under summary rule, under 84th section, 7t2. 
 Oarnishee. 
 
 Of Fi. fa. where debt is not disputed or garnishee does mt 
 
 appear, 745. 
 Of Ca. sa. in above case, 746. 
 
 Of writ against garnishee to show cause why execution should not 
 issue for debt disputed by him, 746. 
 Ca. sa. therein, 748. 
 Declaration thereto, 747. 
 Endorsement on above writ, 746. 
 Fi. fa. thereon, 747. 
 Issue thereon, 747. 
 Judgment for plaintiff, 747. 
 Plea, 747. 
 Postea, 747. 
 LijuHction. 
 
 Endorsemont of, on writ of summons, when an iujunction is claimed, 
 V49. 
 
INDEX OF SUBJECTS. 
 
 80:; 
 
 10 an abscond- 
 t overholding 
 
 [. 
 5. 
 
 ,€. 
 
 , ■when damage? 
 c., 13, 451,452. 
 
 I, 745. 
 .red, 745. 
 
 II section, H'^i. 
 •nishco does mt 
 
 tcution should not. 
 
 juncUonia claimed, 
 
 VOB,yi—{ContimieJ.) 
 
 Issue. 
 
 Ill general, 73.3. 
 
 "When ordered to be tried by County Conrt judge, 736. 
 
 When there are issues of fact and hiv\", 739. 
 
 In ejectment, for whole (No. 4), part (No. 3), 5S3. 
 ■Joinder. 
 
 Of issue, 132. 
 
 Parties, consent to add parties at trial, 621, /. 
 Judf/mcnt. 
 
 15y default of appearance, 454. 
 
 On confession in ejectment, 584, 
 
 For defendant on plea of set-olf, 73fi. 
 
 IJy default in ejectment for wliole lands, 582. 
 " for part of lands, 583. 
 
 " in claimant not going to trial in ejectment, 584. 
 
 " of bail in ejectment, 584. 
 
 For issue of mandamus after verdict, 748. 
 
 On reference to an arbitrator, 741. 
 
 On special case under 85Mi section, 73t). 
 
 On .Nummary decision under S4th section, 741. 
 
 On a verdict for plaintiff, 748. 
 New assignment, 458. 
 Nisi Prius record, 734. 
 
 Notice. 
 
 To appoint an arbitrator where a vacancy occurs, 237, L 
 
 To defendants, in ejectment, who are mere intruders, 527. 
 
 Limiting defences in ejectment, 522, y. 
 
 Of tenant to landlord, that writ of ejectment had issued, 551,^. 
 
 Of issue of writ of summons against an alien defendant, 451. 
 
 To deputy clerk to transmit record, 332 7. 
 
 Of aiiidavit of service of, and paj-ment of postage, «fec., 332, f:. 
 
 For a jury, 202, h. 
 
 Limiting the defence in ejectment, 522, y. 
 
 Of setting cases down for argument in Term, 025, h. 
 
 Under Law Reform Act, that trial will bo had in County Court, C(i5. 
 Form (rf judge's finding in such cases, 6(J5. 
 
 Under Law Reform Act, of intention to try County Court case in 
 Superior Court, 605. 
 Pavmcnt of money into court, plea of, 122. 
 J'ka. 
 
 Commencement of, 457. 
 
 In actions on contract, 457. 
 
 For wrongs independent of contract, 458. 
 Pleadings, 455. 
 Policy of insurance, averment of interest, 719, 720 r. 
 
 Poslea. ■ 
 
 To plaintiff wlien defendant appears, 734. 
 
 On ajieeial case^ 734. 
 
 AVhere verdict is on some issues and a reference ordered as Ut 
 others, 734. 
 
 On verdict for defendant on plea of set-off, 735. 
 Order of reference to clerk of court to assess damages, 216, m. 
 liemanet. 
 
 Affidavit on application for rule for costs of, 326, k. 
 
 Entry of case sent from County Court for trial, 606. 
 
S04 
 
 INDEX OF SUBJECTS. 
 
 ft 5 
 
 FOin^l—iCoutinned.) 
 
 Replication, 438. 
 
 Rule for costs of, 325, j. 
 licvivor. 
 
 W rit of, 455. 
 
 Suggestion to proceed, 197. 
 Summons for, 198, g. 
 
 Suggestion of deatli of sole defendant, 191, o. 
 
 Of judgments, summons to enter suggestion, 454. 
 
 Summons to entitle judgment creditor to execution, 455. 
 Rule for execution against judgment debtor, 454. 
 Rule nm to discharge a mortgage where money i3 paid into court under 
 
 section 74 of Ejectment Act, 576, c. 
 Special case. 
 
 For trial of question of fact, 454, 733. 
 law, 733. 
 
 Stated by arbitrator, 734. 
 Special endorsements on writ of summons, 450. 
 Suggestion that plaintiff is entitled to judgment, 455. 
 Trial, suggestion in case of neglect to go to, 329, a. 
 
 Venue, chanr/c of. 
 
 Suggestion to change venue, 531, /. 
 Summons to change venue, 531, c. 
 View by jury, order for, 045, t. 
 Writ. 
 
 Of attachment, 480. 
 
 Capias to commence action, 449. 
 
 " after action commenced, 40 I, 453. 
 " ad sat., 743, 744. 
 Of enquiry, to try issues contingentlj', 740. 
 Endorsement on verdict in, 740. 
 Judgment on, 738, 741. 
 Non-suit on, 740. 
 
 To ascertain damages caused by issue of mandamus, 748. 
 Of return to be endorsed on, 738. 
 Of execution, when the arbitrator decides on matters of account, 744. 
 Wlior. the court, »tc., decides on matters of account, 744. 
 Iii detinue, and commanding sheriff to levy value of chattela 
 
 iletuined, 749. 
 In detenue, and commanding issue of distress for, 749. 
 Of Uab. Fac. I'oss. on judgment by default, 744. 
 
 On rule to deliver i)os3ession pursuant to an award, 745. 
 And writ of Ji. fa. for costs in ejectment, 744. 
 Of revivor, 455. 
 Of sunmions. 
 
 Where defendant is in the jurisdiction, 449. 
 
 Memorandum and endorsements on. 449. 
 Where defendant, a British subject, lives out of jurisdic 
 
 tion, 451. 
 Where defendant is not a British subject, and lives out of 
 the jurisdiction, 451. 
 
 Endorsements on, 13, 449. 
 Of trial. 
 
 To try in County Court, 737. 
 Of endorsement of verdict on, 737. 
 Of judgment on, 737. 
 Of non-suit on, 737. 
 
**- J 
 
 -nt^.,- 
 
 INDEX OP SUT5JECTS. 
 
 SOf) 
 
 ind lives out of 
 
 FORMAL DEFECTS IX PLAINTIFF'S TITLE.— 5« Ejectmknt. 
 FORMAL DEFENCES.— &e Pleadings. 
 
 FORMS. 
 
 Contained in Schedule to C. L. V. Act to bo u.^ed when applicable, 701. 
 May be altered to suit circuinstaiiocs, 705. 
 
 Variance from, not in matters of substance, not to be an irregularity, 7*^-'). 
 Sec Ge.neral Rules of Couut. 
 
 GARNISHEE PROCEEDINGS. 
 
 Application to at'aeJi (lehta. 
 
 Court in whicli to bo taken, G54. 
 
 Maj' be made ^.r parte, o9(>. 
 
 AVhat must be sliown on, JiOO. 
 
 Indebtedness of tliird party must be shown positively, 801, /. 
 
 Who may attach, :>01, (/-/. 
 
 What may be attached, :)01, c. 
 
 Money out of the jurisdiction may be attached, S92, q. 
 
 Judge may use his discretion as to grantin;;', KU'2, i. 
 
 "What debts due or accriiinn- due may be attached, S92, j. 
 
 Service of the order or notice of, to bind garnishee, 396, 397, n. 
 
 Personal service is not indi-^pensablc, ;^96. in, 
 
 No order to be granted in actions counnenced against absconding 
 debtors, 397. 
 Attachment Itooh. 
 
 To be kept by Clerks and Deputy Clerks of the Crown, 404. 
 
 Form sanctioneil by court, 4u4, A. 
 
 Form of enti-ies, 054. 
 
 To be kept uniforndy, 404. 
 Costs to be in discretion of jiidgo, 404. 
 
 How ilisposed of generally, 4(15, n. 
 
 County Court. 
 
 Practice when judgment is in this Court, and amount garnished is 
 
 ■witliin tiie Division Coui't, 4i>2. 
 Execution in sucii case to issue out ot Division Court, 402. 
 Where ilebt is disputed in such case Division Court practice to be 
 
 followed, 4i»3. 
 Wlien the amount gariushcd is within jurisdiction of Connty or 
 
 Division Coiu't, executi(;n is to issue according to Superior 
 
 Court practice, 401. 
 la sucli case, if garinshce disjmtes the debt proceedings to be 
 
 according to Division (^ourt pra<'tiee, 4nl. 
 In such cases, garnisiice is to appear before Judge of County where 
 
 he resides, 4oO. 
 Time and ]ilace to appear in, 400. 
 
 Notice of, to be given to garnishee, 400. 
 Di^ndiiiri the ihlit. 
 
 If the(k'l)t, is within the jurisdi(;tion of Division Court, the practice 
 
 of that court is t(» be followed, 4i)l. 
 In Sui)i'rior Court cases judge may order to proceed against him 
 
 by writ, K99. 
 What such writ, sliall call on garinsheo to show, 899. 
 Proceedings on such writ to be as on writs of revivor, 399, 4()0_y. 
 AVlieii writ, will be ordered to issue, 399, e. 
 Execution. 
 
 As to issue of against garnishee, 398, z. 
 
 It gurulshee do not appear, executiou is to issue forthwith, 398. 
 
806 
 
 INDEX OF SUBJECTS. 
 
 
 GARNISHEE PROCEEDI]S,OS- (Co«<;M«crf.) 
 
 If garnishee appear and cloo3 not dispute debt and does not pay 
 over, execution niny issue tortliwith, ;J98. 
 Notice of, to bo givon to debtor, 'MT,p. 
 Order to paji over. 
 
 Giirnirfliee may be called upon in same or subsequent order to 
 
 sliow cause why he should not pay over, 397. 
 AVlien order will be nuide, 397, o. 
 Usuallj' inelu<led with order to attach, 400, m. 
 Payment by gnrnisiieo or execution levied to be discharge against 
 the dcbtmC 403. 
 
 Even thoujjh proceedings arc set aside, 404. 
 When garnishee is protected by the attaching proceedings, 403, d.e.f. 
 See Attacumknt of Debts — County Couiit. 
 
 (iAZETTE. 
 
 To iiitin "^ nvio Gazette, COS. 
 
 (JENEU.il- ^ i<'. 'Y STATUTE. 
 
 When I •('.. lo words " by statute" and the act relied on to be inserted 
 
 in nmigin ui' plea, 730. 
 Memorandum, Ac, of act relied on to be inserted in margin of record and 
 
 ISa.i , '',?>] . 
 
 (JENERAL kULEri v)F L.v.i.ilT. 
 Admission of docume its, oli, 
 AtKdavits, 678. 
 
 Appeals from County Court, 762, 765. 
 Appeni-anco, 619. 
 Assessment, 643. 
 Attaclmient, 692. 
 Attorney and guardian, 620. 
 Attorneys, 614. 
 Awards, <)'.)3. 
 
 Bail and bailable proceedings, 658. 
 Change of venue, ()27. 
 Clerks of tiie Crown, 694. 
 Clerks of the Process, 696. • 
 Cognovit, 636. 
 Computation of time, 703. 
 
 Confession and avoidance, pleas of in actions of contract, 718. 
 Continuance, entry of, 732. 
 
 Costs, when action is of competence of Division Court rule substituted 
 for rule 155 (jiage 698), 760. 
 
 " fees to attorneys for copy and service of subpoena, 765. 
 
 •' of nonsuit in oj(!ctment, 732. 
 
 " taxation of, 698. 
 Crown otlices, hour for keeping open (rule 146, p. 694, repealed), 760. 
 Council fees, 759. 
 Demurrer, 621. 
 
 When there are issues of fact and law, latter to bo first disposed 
 of, 765. 
 Depositions or interrogatories, 640. 
 Deputy Clerks of the Crown, 694. 
 Discontinuance, 634. 
 
 Dower, form of writ of assignment of, 761. 
 Ejectment, 669. 
 Evidence, 640. 
 Execution, 653. 
 
INDEX OF SUBJECTS. 
 
 807 
 
 J substitutoil 
 
 GENERAL RULES OF COURT— {Continued.) 
 Folio, meaning of, 7fil. 
 Form of afHilavit of justification of bail, 60 1. 
 Form of proceedinjjs, 704. 
 Garnisliee, procce(lin2;a against, 654. 
 General issue by statute, 731. 
 Guardian, 620. 
 Imparlance, euria advimri vuU vicecomes jiisl mis'it breve, entry of, not to be 
 
 made on record, 7.32. 
 Inspection of documents, ]640. 
 Irregularity, 676. 
 Issue books, 643. 
 Insolvent debtors, 6!>3. 
 Joinder of parties, 621. 
 
 Judge's cinuubers, rules as to jurisdiction, ifec, of Clerk of Crown, 768. 
 Judge's order for judgment, 636. 
 Judgment non obntanle vcred'iclo, 646. 
 Motion in arrest of judgment, 646. 
 New trials, 646, 
 
 Rules (1 to 12) Mich's term, 27 Vic. repealed and new rules sub- 
 stituted, 763. 
 
 Additional days for disposal of, 760, 767. 
 Nil debit not allowed to be ])leaded, 721. 
 Non assumprit. j)lea of in simple contracts, 712. 
 Non detinet, etlect of plea of, 722. 
 Not guilty, plea of, in action for torts, 722. 
 
 In action for trespass to land, 72',t. 
 
 In action for taking and converting, 729. 
 Notice of trial, 643. 
 Notices, service of, 686. 
 Orders, service of, 683. 
 Particulars of demand or set-ofF, 628. 
 Payment to be pleaded in bar, 722. 
 " of money into court, 623. 
 Penal actions, coniimuiiding of, 671. 
 Plea in actions on l)ills and notes, 717. 
 
 Of defense arising after action commenced, 731. 
 Pleadings, 621. 
 
 Service of, 686. 
 
 General rules as to, (700-732) by person suing, &c., in representa- 
 tive character, 712. 
 Pleading and demurring at same time. 
 
 Order for, to be attached to record, 762. 
 
 In default, demurrer not to l)e argued or record passed, 702. 
 
 Demurrer to be arf^ucd first, 70,5. 
 Policies of insurance, pleas in an aetinn on, 719. 
 Practice to be followed when not been provided for, 704. * 
 
 General rules as to, 018, 7i>5. 
 Prisoners, proceedings against them, 673. 
 Power of judges as to general rules, 1. 
 
 Extent of jurisdiction, 441, 442. 
 
 Rules to be transmitted to (Jovernor in Council, 443. 
 
 To be submitted to rarliament, 443, h. c. 
 
 To come in force 3 monllis after laid before Parliament, 443. 
 
 Suspension of by Parliament or Governor General when allowed, 
 444. 
 
 As to framing rules as to writs, 444.. 
 
808 
 
 INDEX OP SUBJECTS. 
 
 GENERAL RULES OF COURT— {Continued.) 
 
 Rules may be extended to County Courts, 445. 
 
 Power as to framing County Court rules, 445. 
 
 Superior Court Rules, how far to apply to County Courts, 445. 
 
 County Court practice to conform to Superior Court Practice, 446. 
 Process Clerk, duties of, as to delivery of papers, 759. 
 
 As to granting returns, 760. 
 Procliain ami, 620. 
 Puis darrein, continuance, 731. 
 
 When rules 22 and 23 not to apply, 732. 
 Rules, 683. 
 
 Service of, 686. 
 
 To return writs, 674. 
 Satisfaction, entry of ou roll, 656. 
 Security for costs, 630. 
 Set-off when necessary to plead, 721' 
 Several counts on same cause of action, 708. 
 Several pleas ou same cause of action, 710. 
 Sheriffs-, 674. 
 
 Tariff of fees for in criminal matters, 766. 
 Specialties, actions on, 720. 
 Staying proceedings, 635. 
 Subpoena to produce records, 610. 
 Summonses, 683. 
 Tables of costs rescinded, 705. 
 Taxing officers, directions to, 698. 
 Trial, 643. 
 
 By proviso, 643. 
 Venue to be stated in declaration in the margin, 71 2. 
 
 Change of, 627. 
 View, 645. 
 Warrant of Attorney, 636. 
 
 GENERAL SESSIONS. 
 
 Former law respecting, repealed, 694. 
 To be hold semi-annually except in York, 594. 
 In York to be held 3 times a year, 595. 
 To have powers of Recorders' Court, 599. 
 
 GOODS. — See Attachment of Goods — Execution against Goods. 
 
 GOVERNOR. 
 
 In act respecting jurors and juries to mean Lieutenant-Governor of On 
 tario, 603. 
 
 GUARDIAN. — See Piiochain ami. 
 
 HABEAS CORPUS. 
 
 May be issued to bring up prisoners to give evidence, 256. 
 Application for to be made in Chambers, 257. 
 
 HABERE FACIAS POSSESSIONEISI, WRIT OF.— See Ejectment. 
 
 HIGH CONSTABLE. 
 
 Appointment of, 695. 
 
 HUSBAND AND WIFE. 
 
 Joinder of actions by, 86, 87. 
 When necessarily co-plaintiffs, 87, c. 
 
 When husband may add his own claims and those of his wife's separate 
 estate, 88. 
 
•v^ii., .. 
 
 ts, 445. 
 ■aclice, 446. 
 
 ivcrnor of On 
 
 ENT. 
 
 (rifc'3 separate 
 
 INDEX OF SUBJECTS. 809 
 
 HUSBAND AND VflFE—iContinunl.) 
 
 ■\Vhcn suits by nmy be consolidated, 88. 
 
 EtTect of death of one party in such suit, 89,/. ff. 
 See lltvivoR. 
 
 IMMEDIATE EXECUTION.— -See Execution. 
 
 IMPARLANCE, ENTRY OF, ON RECORD.— Si-e General Rules of Court. 
 
 INCORPORATED COMPANIES.— &e Banks. 
 
 INCREASE. 
 
 Aflidavit of, by wliom to bo made, 701. 
 Contents of, lol. 
 See Costs. 
 
 INFANTS, WRIT SUED OUT BY.— STec Ejectment. 
 
 INFERIOR COURT COSTS.— >SVc Costs. 
 
 INJUNCTION, WRIT OF, 
 
 Claimed icith writ <\f summons. 
 
 In wliat actions it may be claimed, 408, in. 
 
 Action must bo first brought, 4H'.t, n. 
 
 Attachment may i.ssue to enforce, 472. 
 
 Danina'cs may be claimed in same action, 471. 
 
 Endorsement on writ of simitnons, 471. 
 
 Jud(rnient as to may be <;;iven separately, 472. 
 
 •Jurisdiction of court as to, 472, </. 
 
 AVrit of summons in such case to be in same form as in personal 
 actions, 471. 
 After action hroiirjht. 
 
 In what cases and on what terms ijrantod, 472, 473, ('. 
 
 May be enforced by attachment, 475. 
 
 Writs or orders for, to be subject to be varied or set aside, 475. 
 
 When granted e.\ parte, 473, 475, .?. 
 
 INSOLVENT DEBTOR. 
 
 Aflidavit for discharge of under section 300 C. L. P. Act, contents, Ac, 
 
 of, C".l3. 
 See CJE.s'EnAL Rules of Court. 
 
 INSPECTION OF DOCUMENTS. 
 
 Iti what cases the order for may be made, 274, 276, g. 
 
 Who may grant, 274. 
 
 Jurisdiction of Connnon Law Courts, Sl5,f. 
 
 INTEREST. 
 
 When allowed from verdict, 5s3. 
 See Veuoict. 
 
 INTERLOt^UTORY MATTERS AND PROCEEDINGS. 
 Certified copies of pleadings may be used on, 1S5. 
 In the County Court may be granted by the County Court judge, 187. 
 Sec Motions. 
 
 INTERPRETATION CLAUSES. 
 
 In Common Law Procedure Act, 448. 
 Law Reform Act, 603. 
 
 INTERROCATORIES. 
 
 Delivery of, 263, 204, p. 
 How to be answered, 206. 
 
810 
 
 INDEX OP SUBJECTS. 
 
 
 INTERROGATORIES— (Co7i//«Me(/.) 
 Timo to answer, 263, v. 2(15. 
 Sliould 1)0 verified by nffiiliivit, 264, o. 
 Refusnl to onswer, when justified, 2t)6 s. 
 Pnrty refusing when guilty of contempt, 267, /. 
 lUglit to deliver when discovery could not bo had in equity, 264, (j. 
 Examination of parties when allowed, 260, ff. 
 
 Costs of, in discretion of judge, 272. 
 
 Terms as to jiroductioa of i)apers, ifec, may bo imposed, 270. 
 
 When to be filed, 270. 
 
 Office copies of to be given, 270. 
 
 May be read without proof of signature, 270. 
 
 Officer taking examination may report specially, 271. 
 
 Reading examination in evii'^nce, 271 rr. 
 
 See DisoovERV of Documents. 
 
 IRRECxULARlTY. 
 
 Application to set aside proceedings to be made promptly, 076. 
 Application not allowed after a fresh step is taken by party knowing the 
 
 irregularity, 677. 
 
 When knowledge is presumed, 676,/. 
 Summons to state objections, t>77. 
 When rule to set aside proceedings for irregularity is to be discharged 
 
 ■with costs, 678. 
 See Summons, Writ of. 
 
 ISSUE. 
 
 Forms of, 583, 733, 736, 739. 
 
 Book, English practice as to, to bo followed, 613. 
 
 In ejectment. — See Ejectment. 
 
 Joinder of. — See Joinder of issue. 
 
 JOINDER OF CAUSES OF ACTION. 
 
 Actions that may be joined, 84, 85, t. 
 
 Causes of action imperative on ])laintifFto join, 86. 
 
 Ilusband and wife, rule as to joinder of causes in action by, 86, 87. 
 
 When not compulsory, 84, r. 
 Local causes of action arising in different counties, where venue may be 
 
 laid, 86. 
 Local causes of action in County Courts, 85, 86, tl. 
 Personal representatives, rule as to action by, 84, p. 
 
 See IIUSDAND AND WiFE. 
 
 JOINDER OF ISSUE. 
 Form of, 132. 
 How construed, 133. 
 Plaintiff may add for defendant in certain cases, 133. 
 
 JOINDER OF PARTIES. 
 At the trial. 
 
 Terms may bo imposed on adding, 72, h. 74, s. 
 When to be made, IS, p. 
 Be/ore trial. 
 
 When allowed, 75, w. 
 
 When defendant may plead de novo, 75. 
 
 Costs occasioned by non-joinder, 82, hi. 83, jH. 
 
 Defendants improperly joined may bo struck out, 75 x, 76 //, i, j, i: 
 
 Terms may be imposed, 76, h, i, j, k. 
 
INDEX OP SUBJECTS. 
 
 811 
 
 JOINDER OF VARTlK^—iCon/iniml) 
 
 Where plnintifTmay ninciid when defendant hns pleaded nonjoinder, 
 
 78, p, f], s. 
 riaintifFs improperly joined niny be struck out, "71. 
 What plnintifF must liie on obtaining leave to amend, C21. 
 Form of consent to bo filed, 021,/. 
 Kon-Joindcr. 
 
 Wiien nonjoinder of joint obliger is not ground of abatement, 79, 
 
 80. 81. 
 AVhat plea of non-joinder must show, 79, a, b. 30, c. 81, e. 
 
 JOINT OBLIGOR. 
 
 When joint obligation may bo given in evidence, 83, n. 
 Effect of giving in evidence, 84. 
 See WttiT OF llEvivou. 
 
 JOINT TENANTS.— 5cc Ejectment. 
 
 JUDGMENT. 
 
 Arrest of 
 
 Costs of motion, 420. 
 When motion may be made, 339, h, k, I. 
 
 On motion in arrest of jmlijnient und non ohntante veredicto, party 
 whose pleading is defective may suggest material to cure the 
 defect, 840. 
 
 Such suggestion is to be made by leave of court and on 
 
 affidavit, 340, n. 
 When suggestion is to bo pleaded to, 340. 
 Trial thereupon, 341. 
 
 EtTect of finding that the facts suggested are true, 341, 
 Effect of facts being found untrue, 341, 
 See Costs — New Tki/l. 
 Debtor. — Sec Examination ok Judgment Debtor, County Court, 
 
 By default of appcarnncc. 
 
 Practice as to, 61, 62. 
 
 For wiiat amount signed, f)2, p. 
 
 No appeal from, 63. 
 
 IIow set aside, 64, t. 
 
 Roll, form of, 454. 
 By default of plea. 
 
 Practice when writ not specially endorsed, Co. 
 
 Assessment of damages, what the roll should contain, 201, w, 
 
 AVhen judgment is final, 06. 
 
 When execution may issue, 06. 
 
 Against one of several defendants, 07. 
 
 By default generally. 
 
 Former practice as to, 198,7, ^'^^< "'• 
 
 No rule or order to compute to be used, 198. 
 
 When to be final, 199. 
 
 8 & 9 Win. III., ch. 11, sec. 8, to continue in force, 200. 
 
 Provision as to assessing damages iuHtead of writ of enquiry, 200. 
 In ejectment. 
 
 Forms of, 582, 583, 684. 
 
 See Ejectment, 
 Entry of. 
 
 Eooks to be kept in ofTices of clerks of the Crown, deputy clerks, 
 and clerks of the County Court, to enter particulars of, 350. 
 
 Judgment also to be docketed in Toronto within three months, 861. 
 
812 
 
 INDEX OF SUnJEOTS. 
 
 f't^S*' 
 
 M 
 
 JUDGMENT— ( Continned.) 
 
 Copy of entry to bo cviclonco when roll is lost and no oxcmpUflca- 
 
 tion van bo liftd, I).")!. 
 No rule for, neccrsnry, 650, r. 
 
 To bo eiulorsod of record of tlie day when eignod, 660, 
 But limy bo entered nunc pro tunc, by order, CfilJ, 
 On cquiliihk pleas. 
 
 i'loadiible at bar in Inw and oquity.^SO. 
 Cases before the act not ineludud, 680, 
 
 Application to revise or vooato, when to bo made, n49. 
 
 Tor new trial or in nrrcst of judj^tncnt, ,'!40. 
 
 When set aside defendant to bo restored what has been taken in 
 
 execution, 849. 
 Power of jiu1|Ljo at the triid is at nn end when sii^ned, 018. a. 
 When signed before term to bo valid tliougii tlie court bo not sit- 
 ting when signed, .'<48. 
 Time for signing in Superior nnd County Courts, 34r.. 
 
 May bo loosened nnd speedy execution ordered by the 
 
 judge, 347. 
 Wlien such speedy oxecution is ordered the judgo is to 
 certify on the record, 847. 
 Non obstanfe vrfrdlcto. — Srr Custs — .Ii'domknt, Arkest of — New Triai. 
 I'rayer of — aSVc I'tEAPixti — 1'uayer of Judgment. 
 llcH'overcd, plea of. — Src Pleammi. 
 llevival of — See Revival ok Ji-iximent ant> Execution. 
 Satisfaction of — See Satisfaction <>f Judgment. 
 
 JUDGE. 
 
 0/ Assize. 
 
 Power of as to County Court cases tried before liim, COO. 
 In C'haiiiltcrs. 
 
 Application to rescind order of, within what time to bo made 
 
 51, w. 
 May set aside his own order, 50, w. 
 
 '■ " order of anotlier judgo, 60, w. 
 
 Irregular proceedings before, 51, 5'J, w. 
 
 Time for moving against mesne process for, 52, w. 
 ElFect of fresli step in such motion, 52, if. 
 Rules ns to transaction of business by (^'lerk of Crown, 708 
 Rules as to transaction of business in, by Clerk of the Crown, 708. 
 Notes of judges in actions tried according to Law Reform Act; how 
 
 attainable, 601. 
 Sec Motions, Inteklooutory. 
 0/ Couvlii Court. 
 
 Substituted for Recorder in certain cases, 597, 698, 599. 
 Interpretation of word, 448. 
 
 JUNIOR JUDGE OF THE COUNTY COURT OF YORK. 
 Jurisdiction conferred on, 611. 
 
 JUUAT.— >Sfc Affidavit. 
 
 JURISDICTION. 
 
 Of Superior Court as to territory, 2, /. 
 
 Queen's Bench and Common Pleas territorially co-ordinate, 2, /. 
 
 In ejectment, 580. 
 
 JURORS AND JURIES. 
 
 Cctain clauses of act respecting, repealed and amended, 603. 
 
INDEX OF SlUJECTB. 
 
 818 
 
 cxcniplifica- 
 
 icen taken in 
 
 ni8. a. 
 
 irt bo not fiU- 
 
 tiered by tho 
 10 judjjo ia to 
 New Trial. 
 
 1, COfi. 
 
 110 to bo made 
 
 62, w. 
 
 vn, 768 
 
 ue Crown, 768. 
 
 ,cform Act; how 
 
 599. 
 
 c, 2,/. 
 
 603. 
 
 JURY, TRIAL r.Y, 
 
 In nhsiiico of motion for trial by, trial may bo had by jud};o alono, 601. 
 
 /SVfi AliIiIll'.ftSK.S OK CoUNSKL. 
 
 Vii'W l)y. — .SV'' ViKW. 
 
 Trial witlioiit. — Si Tuial and Arhkssments. 
 
 JUSTIFICATION OF HAIL.— .V,r Bail, Spkcul. 
 
 LANDLORD AND TENANT. 
 
 J'JJeclmciif 1)1/ Idiidlortl. 
 
 When landlord may eject tenant, 552, p. 
 
 Demand of jiosHcssioti in such ease, when necessary, 553, q, 054, «. 
 
 Hervico of writ in sucii cases, 653, r. 
 Judgment. 
 
 Wlint must 1)0 shown to entitle lundiord to, 555, w. x. 
 
 Not to bar riglit of mort;j;a^('o of (h'fcntlant, 530. 
 
 To bar lessee of all riglits except ap^ieal after a certain time, 650. 
 AonxuU, 
 
 In case landlord is nonsuited, defendant to have costs, 555. 
 Other remedies of, not affectud by Mjectment Act, 678. 
 (SV(; K.IKCTMK.NT — Lessee — Tenant. 
 
 LANDS, EXECUTION AGAINST.— fiTtc Execution. 
 
 LAW REFORM ACT. 
 
 Law Reform Act, 693. 
 
 Amendments of, COO, 012. 
 Forms under, 005. 
 
 Not to aileet gaol arrangements in York, 604. 
 Not to invalidate proceedings in any court, 001. 
 Enactments inconsistent witii repealed, 004. 
 When to take effect, 004. 
 LESSEE. . 
 
 Judgment against, effect of, 566. 
 
 I'rocecdings at law when lessee seek'? relief in equity, 657, «'. 
 "When an injunction will not be continued, 557. 
 Must pay rent and costs into court, 558. 
 
 Proviso where proceedings aro not taken in equity until execution 
 executed, 658, I. m. 
 
 In such case what lessor is accountable for, 659, n. o. p. 
 See Ejectment — Landlord and Tenant. 
 
 LIBEL. 
 
 Payment into court in actions for, not allowed, 119. 
 Exemption in caso of newspaper libel, 119, n. 
 See Payment into Couut — Pleading. 
 
 LIMITING DEFENCE.— See Ejectment. 
 
 LIMITS, BAIL TO.—Sce Bail. 
 
 LIQUIDATED AMOUNT. — See Particilaus of demand — Summons, writ of— 
 Trials and Assessments under Law Reform Act. 
 
 LOCAL ACTIONS. 
 
 Definition of, 7, n. 
 
 LONG VACATION. 
 
 Not to count for time to plead, 99, p. 
 
 MAKING SUBMISSION RULE OF COURT.— ^See Arbitration and Award. 
 
 MAKING ORDER RULE OF COURT.— &e Rules, Suumonseb and Orders. 
 
814 
 
 INDEX OP SUBJECTS. 
 
 
 A 
 
 .'"? 
 
 MALICIOUS ARREST. 
 
 In actions of payment into court not allowed in, 119. 
 See Pleading. 
 
 MANDAMUS, WRIT OF. 
 
 Declaration claiming, form of, 462. 
 Direction and return of writ, 4C4. 
 Enforcing in case of disobedience, 465. 
 
 Instead of enforcing, the court may order the duty to be performed 
 
 at expense of defendant, 466. 
 How this expense is to be recovered, 400. 
 Form, »tc., of writ, 464. 
 
 Issue of. 
 
 Principles discussed, 459, a. 
 
 For what it shall issue, 461. 
 
 Notice of claim for, to be endorsed on writ, 460. 
 
 In what actions it may be claimed, 460. 
 
 Mode of obtaining, 461. 
 
 Great particularity required in, 464, d. 
 
 To issue with usual execution after judgment for plaintiff, 463. 
 Origi'ial jurisdiction of courts, 466, 6. 
 Plaintiif must be interested in duty to be performed, 461. 
 Pleadings to be as nearly as possible in othc. actions for damage?, 462. 
 I'roceedings under this act not to interfere 'vith the original jurisdiction 
 of the court, 466. 
 
 To apply as far as possible to prerogative writs, 467. 
 Iiulo for prerogative writ may be absolute in first instance, 4GS. 
 
 May be returnable in term or vacation, 468. 
 Teste of, 468. 
 Tine for returning may bo extended, 468. 
 
 MAPS AND PLANS. 
 
 Taxing officer may allow reasonable sum for, on taxation, 703. 
 Sei: Costs. 
 
 MARRIAGE OF FEMALE PLAINTIFF OR DEFENDANT.— &« Revival of 
 
 JUDGMKNT ReVIVOK. 
 
 MARSHAL OR CLERK OF ASSIZE. 
 
 Fees to which he is entitled before entry of record, when petit jurors are 
 
 paid by the county, 696. 
 See Costs. 
 
 MESNE PROFITS. 
 
 In ejectment, when proof of, is allowed, 565, 666, j. 
 
 Notice must be served before trial, 505. 
 When verdict is for claimant, he may have judgment for, up to verdict, 666. 
 Effoct of such judgment, 566, p. 
 
 Claimant may bring an action for mesne profits accruing subscquentlj', 
 566, 566, ;). 
 
 Judgment by default in action for, 525, n. ,^ 
 
 See Ejectment, '' 
 
 MILEAGE. 
 
 Affidavit of required on taxation, 700, 
 
 Not to be taxed without, 418, 
 When Sheriff is entitled to, 590. 
 See Costs — Sheriff's Fees. 
 
 MISJOINDER OF PARTIES.— /See Joindbu of Paeties. 
 
INDEX OP SUBJECTS. 
 
 815 
 
 e performed 
 
 M, 463. 
 
 iin^e?, 462. 
 ,1 jurisdiction 
 
 468. 
 
 I'c Revival of 
 
 jUt jurors are 
 
 |o verdict, 566. 
 Bubscquently, 
 
 MISNOMER OF PARTIES. 
 
 Amendable at plaintiff's cost, 10, n. 
 Application as to when to be made, 70. 
 Not a ground for a plea in abatement, 70. 
 Sec Amkndment — Revivor. 
 
 MIXED ACTIONS.— /See Real and Mixed Actions. 
 
 MONEY. 
 
 May be seized by sheriff, 367. 
 See Execution, Wnrr of, 
 
 MORTGAGEE. 
 
 In action of ejectment, by the owner of the "quity of redemption, may 
 
 pay the amount due to him or into court, oi4, 575. 
 Such paj-ment shall be deemed to bo in full satisfaction and mortgage 
 
 ordered to be discharged, 575, 576. 
 Form of rule nisi for discharge, 576, e. 
 In such case mortgagee may be ordered to reconvcy and deliver up 
 
 deeds, <tc., 576. 
 Rights of in action of ejectment, 574, 675, 576, notcn. 
 
 Not barred by judgment at suit of laudloi'd, 657, i, i. 
 When such action not to apply, 577, h. I. 
 
 MORTGAGES.— /See Moiitgaoees. 
 
 MORTGAGOR. 
 
 Interest of in land, Ac., may be sold under fi fa lands and conveyed as 
 
 other interest in lands, 303. 
 Effect of such sale, 363. 
 
 Sec Mortgagee — Execution, Wu'r of. 
 
 MOTIONS. 
 
 On affidavit. 
 
 Ajiplication to compel persons refusing to make affidavits to do so, 
 and to produce papers, to be by sunimons, 257. 
 
 "When afiidavits may be used in .Miswer to atiidavits, 251. 
 
 AVhen affidavits in reply to affidavits in answer are permitted, 252. 
 English practice as to, 251, /. 
 
 What is new matter on, 252, u. 
 Examination of wittiesscs and production of papers on. 
 
 Application for, to be made on I'/iidavit, 253, e. 
 
 Disobedience of order for, to be contempt of court and attachment 
 issue for, 255. 
 
 Documents, what are protected, 255. 
 
 Examination may be adjourned, 255. 
 
 Fees to be allowed witnesses, 255. 
 
 Ovder not to be absolute in first instance, 252, y. 
 
 When witnesses are to attend, 254. 
 
 Before whom witnesses must attend, 253. 
 For new trial. 
 
 In cases brought down under the Law Roform Act, 600. 
 
 Judges may give a verdict instead of new trial, 607. 
 
 See New Tkial. 
 
 MULTIPLICITY OF SUTTS.— 5fc Costs. 
 
 NEGLECT TO GO TO TRIAL.— /See Trial and Assessment. 
 
 NEVER INDEBTED. 
 
 Effect of plea of, in actions for goods bargained and sold or sold and 
 delivered, 715, 6. 
 
 In actions for money had and received, 710, d, e. 
 
816 
 
 INDEX OP SUBJECTS. 
 
 NEVER WDEBTED— {Continued.) 
 
 Inadmissible la actions on bills and promissory notes, 111, q. 
 See Pleading. 
 
 NEW ASSIGNMENT. 
 Forms of, 458. 
 See Pleading. 
 
 /K(%<tJj-u, ^^^^-^^-^V, ^-JS' 
 
 NEW TRIALS. ' 
 
 Application fir rule nuii. 
 
 Affidavits io be used on application, where to be sworn, 648. 
 
 When to be made, S33, n. 
 
 When and to whom granted, 834, t. 
 
 In what court to be made, 334, r. 
 
 Rule nisi for to state grounds shortly, 334. 
 
 May be amended in case of omission, 336. 
 In cases brought down under Law Reform Act, 600, 60Y. 
 In County Court, Superior Court practice to be followed, 338. 
 
 In such cases not to bo made after rising of court on third 
 day of ensuing term, 338. 
 Filing rules. 
 
 Rule nisi to bo filed within foui* days after service with clerk of 
 
 proper court, '763. 
 If not so filed, opposite party may file copy served on fifth day, 
 
 T63. 
 If not drawn up on third day after granted, a ne recipiatur may be 
 entered, and motion treated as abandoned, 763. 
 
 Unlnj of. 
 
 When filed, clerk is to enter memorandum of in a book, 7(53. 
 
 Form of book, 763. 
 When so entered notice is to be given to opposite counsel, 048. 
 Otherwise judgment signed will be regular, 648. 
 And in such case the rule cannot be argued until judgment is set 
 aside, 648. 
 
 Order in which motions are heard. 
 Practice as to, 764. 
 
 Additional days for hearing motions, 766, 767. 
 Motions may be hoard at any time when both parties are present, 
 
 764. 
 Practice when party moving a new rule does not appear when it is 
 called on in its turn, 764. 
 
 When party called upon to show cause does not appear, 764. 
 When neither party appears, 7G4. 
 
 In absence of other business the court may hear such motions 
 on other than new trial days, 764. 
 Motions may be enlarged, 764. 
 
 " unheard r.t end of term to be enlarged as of course on filing 
 a motion paper, 764. 
 Time for making motions, practice as to, 648, w. 
 When not entered in postponed list, 646. 
 Cases are not to be set down in postponed list without 
 leave, 648. 
 Taking out rule, practice when the rule is silent as to costs, 049. 
 Rule for payment of costs in case of default, 649, o, p, q. 
 Rule for discharge, wiicn absolute, 649. 
 See CocNTT Court. 
 
 NEXT FRIEND.— /Sfee Peochain ami. 
 
,..1?&.v-. 
 
 INDEX OP SUBJECTS. 
 
 817 
 
 I r 
 
 648. 
 
 07. 
 
 ed, 338. 
 irt oa third 
 
 ?ith clerk of 
 
 on fifth day, 
 
 jialur may be 
 
 )ok, 763. 
 unsel, Gt8. 
 adgmcat is set 
 
 are present, 
 )ear when it is 
 ot appear, 764. 
 ir such motions 
 
 course on filing 
 
 ed list without 
 
 to costs, G49. 
 649, 0, p, q- 
 
 NIL DEBET, PLEA OF. 
 
 Not allowed in any action, 720. 
 See Pleading. 
 
 NISI PRIU3, ENTRY OF RECORD AT.—- See Ricconns. 
 
 NISI PRIUS, REFERENCE AT.— 5«e Arbitratiox and A\vAr.D. 
 
 NOLLE PROSEQUI. 
 
 Defendants' costs on entry of, 419. 
 See Costs — Pleading. 
 
 NON ASSUMPSIT, PLEA OF. 
 
 In action against bailees and agents, 714, x. 
 
 on bills and promissory notes, not allowed, 717, ff. 
 
 wliere never indebted, can be pleaded, not allowed, 715. 
 
 on policy of insurance, effect of, 71 S, v. 
 
 on simple contract, effect of, 712, s. 
 
 on warrants, effect of, 713. 
 
 See Pleadings — General Rules of Court. 
 
 NON DETINET. 
 
 In actions for detaining goods, effect of, 722, /. 
 Evidence admissible under, 722, g. 
 See General Rules — Pleading. 
 
 NON EST FACTUM, PLEA OF. 
 
 In action on covenants and specialities, 720. 
 Sec Pleading. 
 
 NON JOINDER OF PARTIES.— 5<e Joinder of Parties. 
 
 NON OBSTANTE VEREDICTO.— See Costs— Judome.vt, Arrest of— Nkw 
 Trial. 
 
 NON-SUIT. 
 
 In ejectment, costs of, 732. 
 
 See Costs — Ejectment — New Trial. 
 
 NOT GUILTY, PLEA OF. 
 
 Effect of, in action against a carrier, 727. 
 " for escape, 726. 
 
 « 
 
 (C 
 
 (I 
 
 See Pleading. 
 
 for nuisance, Ac, 725, n. 
 
 for obstructing right of wa3'', 725, o. 
 
 for slander of plaintiff in his trade or ofTice, 725, /). 
 
 for taking and converting plaintiff's goods, 729. 
 
 for costs, 722, i. 
 
 for trespass to land, 729. 
 
 NOTICE. 
 
 7u admit. 
 
 Either party may call on the other by notice to admit documents, 
 
 641. 
 Consequences of, neglect to admit, C42. 
 
 Co.-ts of proving documents not to be ta.xed unlesa such notice Ims 
 been given, 042. 
 Exception, 642. 
 See Admission of Documents. 
 Of assessment. — See Notice of Trial and Assessment. 
 Of bail. — See Bail, Special. 
 
 52 
 
818 
 
 INDEX OP SUBJECTS. 
 
 i 
 y 
 
 NOTICE— ( Co)(<mM«7.) 
 
 To declare. — See Declaration'. 
 
 To join in demurrer. — See Demcruer. 
 
 Ji'o)' a jury under the Law Reform Act. 
 Form of, 602. 
 When to be given, 602, 
 
 Judges who preside may direct trial by jury, 602. 
 Parties may consent to waive notice, 602, 
 
 Of trial, under the Law Reform Act. 
 
 Tlmt trial will be heard in the County Court, form of, 606, 
 
 Form of finding of judge or jury in such case, 605, 
 
 F'orm of notice to try County Court cases at Nisi Prius, 606, 
 
 Form of finding of judge, 005. 
 Limithifi a defence in ejectment. 
 
 Form of, 522, y, 
 
 Sfe Ejkctmknt, 
 Of plaintiff's title in ejectment. — See E""TrMENT, 
 Of trial and assessment at bar, when to be given to Clerk of Crown and 
 
 Pleas, 645, 
 Continuance of, time within which to be given, 286. 
 
 " " when defendant is under terms to take short notice, 286. 
 
 Under Law Reform Act, 600. 
 Form of notice of trial of Superior Court cases at County Court, and of 
 
 County Court cases at Nisi Prius, 605, 
 Number of daj's when to be given, 282, 
 
 Computation of time for, 282, _;'. 
 Notice of assessment, service of, 283 k, 284 I. 
 By proviso, not necessary, 645. 
 Short notice, what is meant by, 286 », 64r.. 
 Terms of notice of trial, 282,^'. 
 When it may be given with replication, 644. 
 When judgment may be signed after it is given, 644, 
 When defendant is to accept, on back of demurrer, 644, 645, 
 Sec Trial and Assessments, 
 
 NUISANCE, ACTION FOR.— See Not GuiLTr, Plea of. 
 NULLITIES.— 5ec Irregularities, 
 
 OFFICIAL GAZETTE, 
 
 To mean Ontario Gazette, 603. 
 
 ORDER OF REFERENCE.— S'tfe Arbitration and Award, 
 
 ORDER TO PAY OVER,— ^ec Garnishee Proceedings, 
 
 ORDERS. — Sec Rules, Summonses or Orders, 
 
 ORIGINAL JURISDICTION AS TO MANDAMUS.— -See Mand.vmus. 
 ORIGINAL PROCESS, 
 
 Bailable. 
 
 Writ of capias, issue of, 4. 
 
 See Capias, Clerk of Process, 
 Non-bailable, — See Summons, Writ of, 
 
 OUTSTANDING DEBTS. 
 
 Suit for, by plaintiff, — See Attachment of Debts. 
 
 OVERHOLDING TENANTS,— See Ejectment. 
 
INDEX OF SUBJECTS. 
 
 819 
 
 ,06. 
 .606. 
 
 ; Crown and 
 
 t notice, 286. 
 Conrt, and of 
 
 JAMU8. 
 
 PARTICULARS OF DEMAND. 
 
 For liquidated nmount may be endorsed on writ of summons, 16, o. 
 Endorsement when the claim is on a bond or contract, 15 p. 
 Actions in wliich writ may be so endorsed, enumerated, 15, m, n, 16. 
 Such endorsement is discretionary, 16, q. 
 Plaintiff may give credit in, 16, n. 
 
 "W'iien 80 endorsed, no otliers need bo given except by judge's order, 17. 
 When to be delivered, with declaration, 175, 628, 629. 
 Rule when they exceed three folios, 629. 
 
 If not so delivered, the costs of the declaration is not to be allowed, 
 629. 
 Summons for, may be obtained before appearance, 630. 
 Order (ur, may be made without affidavit, 630. 
 Time for pleading after delivery of, 630. 
 See Summons, Wuit of. 
 
 PARTICULARS OF SET-OFF. 
 
 With what pleas to be delivered, 629. 
 
 If not delivered when necessary, costs of the plea to be disallowed, 
 629. 
 
 PARTIES. 
 
 Examination of. — See Examination of Parties and Witnesses. 
 
 Joinder of — See Joisdeu of Parties, 
 
 Misnomer of. — See Amendment — Misnomer of Parties. 
 
 PAYMENT, PLEA OF. 
 
 To be pleaded in bar and not to be given in evidence in reduction of 
 
 damages or debt, 722. 
 See Pleading. 
 
 PAYMENT OF EXECUTION TO SHERIFF.— z&e Execdtion, 
 
 PAYMENT OF MONEY INTO COURT. 
 Payment in, by sole defendant, 118. 
 
 " by one of several defendants, under order of court or judge, 1 20 
 Actions in which it is not allowed, 118. 
 Rule of court for unnecessary, but may be moved for if judge's order is 
 
 refused, 145, k. 
 When order for necessary, 119,/), 120, q. 
 Who may pay into court, 120, t. 
 Payment. 
 
 To whom to be made, 120, v. 
 
 Effect of paying in less than is admitted by the plea, 123, 1: 
 
 Percentage of olHcer receiving, 121. 
 
 Fee of officer receiving, 121. 
 
 Officer to give receipt for on margin of plea, 121. 
 Flea of. 
 
 Effect of, 121, d. 
 
 Form of, 122. 
 
 Money sliould be paid in before pleaded, 122, d. 
 
 When presumed paid, 121, d. 
 
 Replication to plea, 123. 
 Subsequent proceedings. 
 
 Plaintiff may accept sum paid in in forty-eight hours, and sign 
 judgment for costs, 124. 
 
 Practice in such case as to costs, 124, p, 623, v. 
 
 Plaintiff may reply that the sum paid in is insufficient and take 
 issue, 124, 
 
 I 
 
 
820 
 
 INDEX OF SUBJECTS. 
 
 PAYMENT OF MONEY INTO COURT— (Co«</«m«/.) 
 
 What costs defendant gets if successful on the issue, 124, s. 
 Practice as to costs when defendant succeeds as to residue, 624. 
 " " " when plaintiff succeeds in one of several con- 
 
 solidated actions, 624. 
 
 PENAL ACTIONS, COMPOUNDING. 
 
 When leave for may be granted, if part penalty goes to the Crown, 672. 
 When gained, the same proportion of the penalty is to be paid into court, 
 
 672. 
 Such money to be held to the use of her Majesty, 672. 
 Qui tarn actions, rule to ccnipound, to provide for payment of sum, com- 
 pounded for, 672. 
 
 PERISHABLE PROPERTY.— /Sec Attachment of Goods, &a. 
 
 PERSONAL ACTIONS. 
 
 What they include, 2, e. 
 
 PLAINTIFF'S CLAIM. 
 
 Endorsement of. — See Paetioulars of Demand — Summons, Writ of. 
 
 PLAINTIFF, DEATH OF.— See Revival of Judgment, Ac— Revivor. 
 PLAINTIFF'S NOTICE OF TITLE IN EJEC^TMENT.—- See Ejectment. 
 PLANS.— /S<« Maps and Plans. 
 
 PLEADINGS. 
 
 Amendment of. 
 
 Practice as to, 153. 
 
 No notice required, 15.3. 
 
 Time for pleading to amended plea, 154. 
 
 Further time may be granted by a judge, 154. 
 
 When the original pleading is to stand, 154. 
 Copies of. 
 
 When certified by clerk, where filed, to be received by the court 
 in lieu of the originals on interlocutory proceedings, 185. 
 
 May be demanded from the deputy clerk, 185. 
 Declarattoti, 
 
 Forms given to be followed in substance, 102. 
 
 Local description to be used when necessary, 712. 
 
 Prolixity into to be avoided, 103, n. 
 
 Representative character of party sueing to be stated in, 712. 
 
 Tresspass to lands, the close or place is to be designated by sufficient 
 description, 728. 
 
 Effect of default in so doing, 729. 
 
 Several counts for same cause of action are allowed in, 708, k. 
 
 Counts used in violation of this rule may be struck out, 709. 
 
 Application to strike out should bo to Judge in Chambers, 709, n. 
 
 When application should be made, 709. 
 
 Policy of insurance, forms of averment of interest, 719, 720. 
 Demurrer. 
 
 When allowed, 159. 
 
 Form of, 165. 
 
 Frivolous, may be set aside, 166. 
 
 When this objection should bo taken, 166, x. 
 
 Joinder in, form of, 167. 
 
 Judgment on, 167. 
 
 Marginal statement to contain substance of the matter of law to be 
 argued, 165, d. 
 
INDEX OF SUBJECTS. 
 
 821 
 
 ,624. 
 eral con- 
 
 wn, 672. 
 into court, 
 
 gum, com- 
 
 T OF. 
 
 IR. 
 
 rMBST. 
 
 )y tbe court 
 1S5. 
 
 by sufficient 
 
 L, 108, k. 
 tt, 709. 
 Qbers, 709, n. 
 
 720. 
 
 PLEADINGS— ( Continued.) 
 
 Delivered without marginal statement, may bo sot aside, 166. 
 
 When defective, may be amended, 166,/. 
 
 Special demurrers abolished, 167. 
 
 Substance of, discussed, 159. 
 Demurring and pleading at the same time. 
 
 Leave for may be granted, 131. 
 
 Affidavit may be required, on application, 134, w, 
 
 Issue of law to be tried first, 135, 135, ij. 
 
 Without leave, a nullity, 134, v. 
 
 Order for, is to bo attached to the record, «fec., or tho cose cannot 
 bo heard, 702. 
 Embarrassing pleadings may be struck out, 156, v. 
 
 Equitable defences. 
 
 Commencement of plea, 171. 
 
 In replevin, 169. 
 
 Not appliable to ejectment, 168, q. 
 
 Decisions of Q. B., C. P. and Exchequer in England, as to what 
 
 are, 170, 171, r. 
 Cases in which equitable pleas have been allowed aud disallowed, 
 
 172 r, 173 n 
 May be struck out, 184, z. 
 
 Equitable Replication. 
 
 Cases as to, collected, 180, n. 
 
 Commencement of, 180. 
 
 May be pleaded to legal or equitable plea, 180, x. 
 General rides as to pleading, (706-732) 
 
 Other rules repealud, 706. 
 
 Joinder of Issue. 
 
 Either party may plead, 132. 
 
 Form of joinder of issue, 132. 
 
 "Joins issue" and "takes issue" distingnished, 132, 9. 
 
 When plaintiff may add a joinder of issue for defendant, 133, )•, «. 
 
 Rejoining double, 137, d. 
 
 New asHiynment. 
 
 Only one allowed to same cause of action, 149. 
 Pleas to be picaded to, 1 53. 
 To have effuct of a new declaration, 151, y. 
 Statementri, etc., required in, 150. 
 Particulars of demand, effect of giving, 150, x. 
 
 Pleat. 
 
 Ir of law to be 
 
 Actionem non, actionem nlterius non, allegation of unnecessary, 113. 
 Application of, to be to whole declaration, unless specially limited. 
 
 114, 0. 
 Attorney, plea by other than for a defendant, not a nullity, 114, n 
 Audita querela, defence by, 170, 177. 
 
 Practice as to. reviewed, 177, w. 
 In bar, how divided, 153, b. 
 Bills of exchange and promisory notes- -in actions on, a plea in 
 
 denial must traverse a matter of tact, e. g. drawing, making, 
 
 &c., 717, h. 
 Commencement of. form of, 1 14. 456. 
 Confession and avoidance — matter of, must be pleaded specially, 
 
 721. 
 Contract or tort — in actions on, where plea is doubtful, it shall be 
 
 held good if good in substance, 125, u, v. 
 
822 
 
 INDEX OP SUBJECTS. 
 
 m. 
 
 
 PLEADINGS— (Con<;njw(/.) 
 
 Matters in confession and avoidance should be pleaded specially, 
 
 718, n, 719, 0. 
 Defence arising after action brought, distinguished from plea of 
 Puis Darrein continuance, 1 1 6, w. 
 
 No formal commencement or conclusion necessary, 116. 
 Plaintiff may confess and then is entitled to costs up to time 
 
 of pleading it, 731. 
 To be pleaded according to the fact, 115. 
 Dilatory plea, effect of judgment by plaintiff on, 156. 
 
 General demurrer not held a dilatory plea, 155, m. 
 May bo set down for argument by plaintiff, 155. 
 Argument not to be before judge in Chambers, 156, /j. 
 Two days notice of setting down to be given, 155. 
 Memorandum books for argument should be provided, 155, n. 
 Practice, if not set down in term, 155. 
 Substance of, 162, y. 
 Distributive pleas which can be construed distributively to be so 
 treated, 127, z, a. 
 
 Pleas of set-off, payment, <tc., to be construed distributively, 
 120. 
 Entitling pleas, to bo entitled in the proper court, 114, /. 
 On equitable grounds, commencement of, 114, p. 
 
 Not necessary to state that it is by leave of a judge or 
 according to the form of the statute, 114. 
 Forms of, commencement of, 114, 456. 
 Pleas in action on contract, 467. 
 
 " " wrongs, independent of contract, 458. 
 
 Pleadings, 455, 458, 
 Formal defence not necessary to plea, avowrj-, &c., 114. 
 General issue by statute, memorandum of statute relied on to be 
 
 inserted in margin of plea, issue and record, 730. 
 Good in substance, not to be objected to for want of form in certain 
 cases, 125. 
 
 Good in substance, not to be objected to where doubts arise 
 as to whether action is in contract or tort, 125. 
 Infants can only plead by guardian, 114, m. 
 Judgment recovered, if plea of is falsely stated, plaintifif may sign 
 
 judgment, 623. 
 " Never indebted," effect of, in actions for goods bargained or sold, 
 715, h. 
 
 " Never indebted," effect of, in actions for goods sold and 
 
 delivered, 715, c. 
 In an action for money had and received, 716, d, e. 
 Inadmissable in actions on bills and notes, 717, q. 
 Nil debet not allowed in any action, 720. 
 
 Non-assumpsit, effect of, in actions against bailees and agents, 714, x. 
 In a policy of insurance, 713, v. 
 Simple contract, 712, s. 
 On warrantry, 713. 
 Inadmissible in actions on bills and notes, 717, [/. 
 
 " when never indebted, can be pleaded, 715. 
 
 Non-detinet, effect of, in action for detaining goods, 722, /. 
 
 Evidence admissible under, 722, <j. 
 Non est factum, eflfect of, in actions on specialties and covenantSj, 
 
 120, t,u. 
 "Not guilty," effect of, in actions of escape, 726. 
 
^££^^ 
 
 INDEX OF SUnjECTS. 
 
 823 
 
 specially, 
 
 n plea of 
 
 ,116. 
 
 ip to time 
 
 56, /J. 
 
 5. 
 
 led, 155, n. 
 
 ;ly to be so 
 tributively, 
 
 a judge or 
 
 act, 458. 
 
 1. 
 
 ed on to be 
 
 m in certain 
 
 doubts arise 
 5. 
 
 ;iff may sign 
 
 ined or sold, 
 
 ods sold and 
 
 \d, e. 
 1- 
 
 [gents, 714,0'. 
 
 [cfe"d,715. 
 22, /. 
 
 Id covenants,, 
 
 PLEADINGS-(CoH/;n»c(7.) 
 
 "Not guilty," effect of, in actions for nuisance, 722, /. 
 
 " " " olistructiiig ri^rlit of w.iy, I'.'.', o. 
 
 " " " sliiiider of ])laiiilitf in lii:i otlicc, 
 
 7 'J 5,/). 
 " " " takiiii; and converting i)laintiiy'.s 
 
 goods, 7 2',). 
 " " " for costs, 7'2'J, i. 
 
 '' " " trosp.iss to lands, 7i'0. 
 
 Payment must be pleaded in bar, 722. 
 
 Cannot be given in evidence in reduction of daiiMgen or 
 
 debt, 722. 
 Wlien neces.sary, 12B, x. 
 Payment into court, form of, 122. 
 Effect of, 121, (/. 
 Should show whether party appears in person or by uttoriiey, 
 
 122, h. 
 Replication to, 12."?. 
 Prayer of judgment, allegation of, not necessar}', 11.3, 
 ,,. Frecludi non, allegation of not neeessiiry, 114. 
 
 Puis darrein coittinuavce, affidavit to accompany, 1 1 0. 
 Substance of, 118, /t.. 
 Distinction between, when pleaded at bur and Ni.si Prius, 
 
 116, (/. 
 Effect of, in England, 117, c. 
 Examples of, 116, c. 
 Origin of, 110, 6. 
 Plaintiff may confess, and is then entitled to costs up to date 
 
 of pleading plea, 731. 
 "When pleadable, 116. 
 On same ground of answer, when allowed together, 710. 
 
 Costs in such case, 'J\l,e, ff. 
 Set-ofF, remarks on statnto governing, 126, y. 
 
 Right of defendant to costs uiuler, 121), d. 
 When not necessary to plead it, 721. 
 Specialties and covenants in actions on all pleas must be plc.ided 
 
 specially, except non est factum, 720. 
 Traverses by defendant, defendant may traverse generally, 129. 
 " " " " separately any ma 
 
 terial allegation, 129. 
 Rule as to traversing considered, 129,/, 1S.'">, ^r. 
 Special, abolished, 113,/, ff. 
 Practice in. 
 
 Commencement of pleas, Ac, 115. 
 
 Conditions, precedent, how to be observed, 9j, d, e,f, 96, g 
 
 " pleading to, 96, ff. 
 
 Dating, omission to date, 92, uii, 93, j', w. 
 Declaration, time and manner of making, 90, ff. 
 Demurrer, a defendant is not allowed to waive plea or enter relictu 
 
 verificatione witliout consent of iilainlifT, 621. 
 Document may be set out in plea, 94, b, c. 
 Entitling, 92, u, t. 
 
 Express colour, what is, 113, 113, c, d. 
 
 Entry to be made on margin of ple.a,. of judgment recovfivd, 022. 
 Filing in long vacation, 99. 
 General averment, pleading to, 96, ff. 
 2fotico to declare, 99. 
 
 
824 
 
 INDEX OP SUBJECTS. 
 
 PLE aDI NG S— ( ronthmcil) 
 
 * Nolic'o to pU'nd niny be ondorsed on doclarotion or served sepa- 
 
 rately, 111, 112. 
 
 To re[)ly, suflicient without dcmnnd, 112, z, 
 Profert not necessary, 937, 942. 
 Si^natiiro of counsel unnecessary, 110, 
 Special traverses aholislicd, 113, 
 
 Form of, 113,/, </. 
 Tiuie to plead in bar, 111. 
 
 To new asslsnineiit. 111, (. 
 Extension of, 111, ». 
 AVlien Sundaj' reckoned in. Ill, <. 
 "When tinio had not exi)ired before 1st July, 622, o. 
 Side bar rule for, not to be granted, 621. 
 Time to reply, 111, t, 
 lieplication. 
 
 riaintiff may travorse goncrnlly, 131, 
 
 Or may admit part and traverse the rest, 182. 
 General form of replication considered, 131,^'. 
 Ropliealion ik injuria, substitution for, 131,^. 
 Material allegations traversable and not traversed, are admitted 
 
 131, k. 
 Rejilying double, 137. 
 Several jilc((/i. 
 
 Abstract of pleas pleaded to be produced on the application, 138, e. 
 Application to plead, affidavit may bo required on, 141, <f. 
 
 Truth or falsity of ploas not to be tried on affidavit, 138, e. 
 To be made to a judge in Chambers first, 137. ' 
 Rule of court is not required for, in first instance, 145, 
 Eut may be obtained if the order is refused by jndge in 
 
 Chambers, 145, I: 
 Objections are to bo heard on summons, 148. 
 Order for, is to be attached to record, 145, it, '702. 
 
 In default, record not to be passed, 762. 
 Order may be appealed to full court, 148, rt. 
 Effect of pleading without an order, 147, nii. 
 Judgment may be signed for pleading without leave pleas that 
 require an order, 147. 
 
 If contrary to effect of order, 147, r, s. 
 So signed, may be set aside on terms, 148, s, s. 
 Picas allowed together, distinct ijrounds of defence, 140, e. 
 
 When possibly a new defence is raised, though apparently 
 
 the same as another plea pleaded, 140, e. 
 Not necessarily inconsistent, 140, e. 
 Showing different legal conclusions, 140, e. 
 To the several counts of the declaration, 141, e. 
 "Which taken together amount to one answer, 141, e. 
 Pleas disallowed, pleas substantially the same, as others on tht^ 
 record, 140, e. 
 
 Inconsistent pleas, 140, e. 
 Immaterial pleas, 140, e. 
 Pleas doubtful, whether allowed or not, 141, «, 
 Specially traversing material facts are allowed, 130, k. 
 St>'iki!i>;i out. 
 
 Pleas improperly framed may be struck out, 15G, 
 Trial of questions by consent, without pleadings, 201, 
 Substance of pleadings. 
 
 Considered, 158, v. 
 
INDEX OP SUBJECTS. 
 
 825 
 
 cd Bopti- 
 
 3 admitted 
 
 tion, 138, c. 
 
 ivit, 133, c. 
 
 I 
 
 3, 145, 
 
 jy jndge in 
 
 pleas that 
 
 apparently 
 
 ^1, e. 
 
 Ihers on the 
 
 PLEADINGS— (Co«</«»«/.) 
 
 Arffumentiitiveness in, 158, v. 
 
 Dupliulty, 158, V. 
 
 Iinnmtoriality in, 90, k, I, m, n, o, p, q. 
 
 Inconsistency in, 158, v. 
 
 Issuable ploadinsrs, what are, 158, v. 
 
 Uncertainty, 158, v. 
 
 Declaration, 161, y. 
 
 riea, peremptory, 162, v. 
 
 " dilatory, 1G2, 163,3/- 
 Replication, lf)4, y. 
 Rejoinders, 165, y. 
 Surrejoinder, 165, y. 
 
 May bo struck out if improperly framed, 156. 
 Plaintiff may traverse part or whole of plea, 130, 
 
 POLICE MAGISTRATE. 
 
 To be ex officio justice of the peace, 597. 
 
 POLICY OF INSURANCE. 
 
 Averment of interest of assured in action on, 719, 720 r. 
 See Non-assumpsit, Plea of — Pleading. 
 
 POSSESSION OF LAND. 
 
 Award of.— See AaniTnATioK and Award. 
 Writ of, — See Ejectme.nt. 
 
 POSTEA. 
 
 Attorney of party entitled to draw it up, 333. 
 When plaintiff is generally entitled to, 333, q. 
 Forms of, 734, 735. 
 See Forms. 
 
 POSTPONEMENT OF TRIAL.— 5ec Trial and Assessment. 
 
 POUNDAGE. 
 
 On executions, date from which charKcnble, 874. 
 When sheriff is entitled to, 874 g, 375, 589. 
 
 " " " fees and mileage only, 376. 
 
 " " " fees and poundage, 37C, k. 
 
 Reduction of, by court, 377, 377 m. 
 See Costs — Sheriff. 
 
 PRACTICE. 
 
 As to abatement. — See Abatement — Revivor. 
 
 Absconding debtors. — See Attachment of Debts — Attachment ov 
 
 Goods, Ac. 
 Absentees — See Summons, W^rit of. 
 Addresses of counsel. — See AnDRKsst:s of Counsel, 
 Admission of documents. — See Ad.mission ok Documents. 
 Affidavit. — See Affidavit. 
 Amendment. — See A mendment. 
 
 Appeal from County Court. — See Appeal from County Court. 
 Ajtpearanco. — See Appearance — Ejectment. 
 Arbitration and award. — See Arbitration and Award. 
 Arbitrators. — Ste Arbitration and Award. 
 Assessment of damages. — See Assessment of Damages. 
 Assizes, proceedings at. — See Record, Entry op. 
 Attachment for contempt. — S(e Attachment. 
 
 " of goods and debts. — See Attachment of Goodb, <fec. 
 
820 
 
 INDEX OF SUBJECTS. 
 
 tt ^ 
 
 PR ACTICE— ( Continued.) , , 
 
 Attorney. — »S'a' Attornkv. 
 
 And miardian.— <SVc PnociiAis Ami. 
 Audita qiiirola. — Hce Audita Qikhkla. 
 Award. — See AnuiTnATiON and Awaud, 
 Bnil. — See Bail — Bail, Spkcial, 
 Bills of exchange. — Set 1'leadino. 
 Cnpiiis, writ of. — See Capias ad Satlsfacienduu. 
 Cnse, action of. — See Costs 
 Cause of action. — See Cal'he ok Action, 
 CertiricatC'S of costs. — See Costs. 
 Certiornri. — See Certioraui. 
 Change of attorney. — See A rTonNEV. 
 
 " of venue. — See Venue. 
 Clmttols, spt'cifie delivery of. — See Chattels, Specific delivery of. 
 Clerks and Deputy Clerks. — See Clerks and Deputv Cmuus. 
 Clerk of Process. — See Clerk ok Process. 
 Cognovit. — See Cognovit, 
 
 Computation of time. — See Computation of Time. 
 Confession of judgment. — See Cognovit. 
 Coroner's fees. — See Siierikf. 
 Costs, — See Costs. 
 County Court. — See County Court. 
 
 Interlocutory orders by judge of County Court, 186, 1S7. 
 Crown, venue in actions by. — See Crown. 
 Death of jiartios. — Sec Revivor. 
 Debtor, examination of. — See Examination ok Debtor. 
 Doclarati< )n. — See Declaration. 
 Defence after action brought. — See Defence, after Action Broucut — 
 
 Pleading. 
 Demurrer. — See Demurrer. 
 Depositions, — See Depositions, 
 Discontinuance. — See Discontinuance — Ejectment, 
 Discovery of documents, — See Discovery of Documents. 
 Dower. — See Dower. 
 Ejectment. — See Ejectment, 
 Enrolling proceedings. — See Ejectment. 
 Equitable defences. — See Equitable Defences — Pleading. 
 Evidence. — See Evidence, 
 
 Examination of judgment debtor, — See Exami.nation of Judgment Debtor. 
 Execution, — See Execution. 
 Exhibits. — See Exuidit. 
 Exonoretur. — See Bail, 
 Female plaintiff. — See Revivor. 
 Femme sole and covert. — See Revivor, 
 Foreigner. — See Absentee — Summons, Writ of. 
 Forms. — See Forms. 
 
 Garnishee proceedings. — See Garnishee Proceedings, 
 General rule of court as to practice, 014, 705. 
 General Sessions. — See General Sessions. 
 Guardian. — Sie Prochain Ami. 
 Habeas Corpus. — See Habeas Corpus. 
 Husband and wife. — See Husband and Wife. 
 Increase, affidavit of, — See Increase. 
 Injunction, writ of, — See Inj 'nction. 
 Insolvent debtor. — See Insolvent Debtor. 
 Inspection of documents. — See Inspection of Documents, 
 
.::mbr^4^ 
 
 INDEX OP SUHJECTS. 
 
 827 
 
 ov. 
 
 BnououT— 
 
 EST DEBTOn. 
 
 PRACTICE— (Co«/i««f</.) 
 
 Interest. — See Intkrkst. 
 
 Interlocutory i)rocoudingH. — See [NTEnLO( rronY Mattkrs and ruocr.iiDl.xo* 
 
 — MoTIONH. 
 
 Intorronntorlcs. — See IsTEiinodATomES — DisfovKRY ok Doc.mkvts. 
 
 Irrcfjiilarity. — See lunKdfi.AinTY, 
 
 Issue book. — iSVe Issi'e Hook. 
 
 Joiiuler of causes of action — See Joinder of Cavses of Action. 
 
 " of issue. — See .Ioindku ok Issik. — I'r.KADDiNO. 
 
 " of jxirties, — See .Ioinm:;ii ok I'autiks. 
 Joint obligation. — S'-e Wuir ok Uevivou. 
 
 " tenants. — See Ejectme.nt. 
 Judgment. — See Ji'iximent. 
 
 Juiiginent debtor. — See Examination of Jidoment Ueiitor. 
 Judges' rbanibers. — See JuuuEs' CiiAMiu:iirt. 
 Jurat. — See Affidavit. 
 Jury, trial by. — See Jiry. 
 Liiiuilord ond tenant.— iS'ce Ejectment — Landlord and Tenant — Lessee 
 
 Tkna.nt. 
 Lessee. — See E.i ectm knt — Less k k. 
 Long vacation. — See Ti.me to I'i.kad. 
 llandoinus. — See Mandamus, \V rit of. 
 Haps and jilon. — See Costs. 
 Marshal and Clerk of Assize. — Ses Costs. 
 Mesne [irofits. — See Ejectment — Mesne Profits. 
 Mileage. — See Costs — MasAtiF. — Sheriff's Fees. 
 Misjoinder. — See Joinder ok Parties. 
 Misnomer of parties. — See Misnomer ok Parties. 
 Monej'. — See Execution. 
 Mortgage — See Ejectment — ^Iortoaoe. 
 Motions on aflidavits, &c. — .SVe Motion.s. 
 
 " for new trial. — See Motions kor New Trial — New Trial. 
 Multiiilicity of suits. — See Costs. 
 New trial. — See New Trial. 
 Nolle prosequi. — See Costs. 
 Notice for a jury. — See Notice kor a Jury. 
 
 " of trial under Law Reform Act. — See Notice ok Trial, Ac. 
 
 " limiting defence. — See J'2jectment, 
 
 " of title. — See Notice of Title. 
 
 " of trial and assessment. — Sec Notice of Trial and Assessment. 
 Order of reference. — See Arbitration. 
 Orders. — See Rules, Orders and Summons. 
 Original process. — Sec Cafias, Writ of — Clerk of Process — Summons, 
 
 Writ of. 
 Outstanding debts, suit for, by sheriff. — See Attachment of Dedts. 
 Overholding tenants. — See Ejectment. 
 Particulars of demand. — Sec Particulars of Demand. 
 
 " of set-off. — See Particulars of Set-off. 
 
 Payment of money into court. — See Payment of Money into Court. 
 Penal actions, compounding. — See Penal Actions, Comi'oundixo, 
 Perishable property. — See Attachment of Dedts. 
 Plaintift''8 claim, endorsement of. — See Summons, Writ of. 
 I'loading. — See Pleading. 
 
 Possession of laud, award of. — See Aruitration and Award. 
 Postea. — See Postea. 
 
 Poundage. — See Poundage — Sheriff's Fees. 
 P ' yer of judgment. — See Pleadi.no. 
 
828 
 
 INDES OF SUBJECTS. 
 
 l'"t 
 
 PRACTICE— (Coiifinued.) 
 
 Prisoners. — See Prisoner. 
 
 Proceedings nt Assizes. — See Address of Counsel — Evidence — Exayina- 
 
 TioN OF Witnesses — Record. 
 Process Clerk. — See Clerk of Process. 
 
 " original. — See Ouioin\l Process. 
 Production of documents. — See Production of Docitments. 
 Qui tarn actions. — See Penal Actions. 
 Beal and mixed notions. — See Real Ai»D Mixed Actions, 
 Recognizances. — See Recognizances, 
 Records. — See Records. 
 
 Referring matters of account. — See Arbitration and Award. 
 Remanet. — See Remanet. 
 Replication. — See Replication, 
 ReplJ^ — See Addresses of Counsel. 
 Revision of taxation. — See Cost.^. 
 Revival of judgments and execution, — See Revival of JoDa.MnNT8 and 
 
 Execution. 
 Revivor. — See Revivor — Rf.vivor, "Writ of. 
 Revocation of awiird. — Sef Arbitration and Award, 
 Right to reply. — See Addresses of Counsel. 
 Roll. — See Records. 
 
 Rules of Court. — See Gener.\l Roles of Cofrt. 
 Rtilc^, summonses and orders. — See Rules, fejjMMONSES and Orders. 
 Satisfaction of judgment. — See Satisfaction of Judgment, 
 Scire facias, writ of. — See Scire Facias. 
 Security for costs. — See Security for Costs, 
 Service of writ.:, papers, ttc. — See Service. 
 
 Setting down causes for argument. — See Setting down Causes for Argu- 
 ment, 
 Set-off. — See Set-off. 
 Sheriff, bail to. — See Sheriff, Bail to. 
 Sheriff's fees. — See Sheriff's Fees. 
 
 Poundage. — See Poundage. 
 Sheriff's rules, &c. — See Sheriff's Rules. 
 Special bail. — See Attachment of Goods — Bail, Special, 
 
 " cases. — See Special Cases. 
 
 " endorsemen> . — -See Summons, Writ of, 
 
 " verdict. — See Special Verdict. 
 Specialties, actions on. — See Specialties, Actions on. 
 Specific delivery of chattels. — See Specific Delivert. 
 Stay of proceedings. — See Stay of Proceedings. 
 Stock in bank. — See Execution, Writ of. 
 Subpoena. — See Subfcena — Costs. 
 Summons, writ of. — See Summons, Writ of. 
 Tenant. — See Landlord and Tenant. 
 Tenants in common. — See Ejectment. 
 Teste. — See The Several Wkts, under proper heads. 
 Time, mputation of. — See Computation of Time — Pleading. 
 
 " to plead. — See Pleadinc, 
 Title of claimant in ejectment. — See Ejectment. 
 Town and County causes. — See Town and County Causes. 
 Trespass or case. — See Costs. 
 Trespass to lands. — See Trespass to Lands. 
 Trials and assessments. — See Trials and Assessments. 
 Trials of questions of fact without pleadings. — See Trials of Questions ok 
 
 Facts, ao. 
 
INDEX OP SUBJECTS. 
 
 829 
 
 SXAYISA- 
 
 MBNT9 AND 
 
 >ER9. 
 
 8 Foa Abgu- 
 
 QUESTIOXS OK 
 
 PRACTICE— (C7oji«m««(7.) 
 
 Ti-iiil by proviso. — See Trial by Puoviso. 
 
 Uninlre. — See Ahbitration and Awakd. 
 
 Vacation. — See Vacation — Decl.vratio.n — Pleading. 
 
 Variances — See Ame>dsiivST. 
 
 Vumio. — See Venue. 
 
 Venire. — See Venire. 
 
 Verdict. — See Verdict. 
 
 View liy jurj". — See View. 
 
 ■NN'itnesses. — See Arbitration and Award — Exaj!ination of AVitnesses. 
 
 AVrits of capias. — See Capias. 
 
 Writ of ejectment. — See Ejectment, 
 
 Writ of enquiry. — See Sheriff. 
 
 Writ of error. — See Writ of Error. 
 
 Writ of execution. — See Bail — Execution, 
 
 Writ of revivor. — See Revivor, Writ of. 
 
 Writ of Summons. — Sec Summons, Writ or. 
 
 PRAYER OF JUDGMENT. 
 
 Use of, in pleading, abolished, 113. 
 See Pleading. 
 
 PRECLUDI NON. 
 
 Allegation of, in pleading, not necessary, 114. 
 See Pleading. 
 
 PREROGATIVE MANDAMUS.— See Mandamus. 
 
 PRIORITY OF EXECUTION.— See Execution, 
 
 PRISONERS, 
 
 I)ischarr/e of, 
 
 Kule uischarginnf to direct a snpovsedeas to issue, 6'73. 
 
 Time for proceeding against, Q'i'4, c, c. 
 " within which to be declared against, 6*74. 
 Examinntio", of. 
 
 l^^.y be examined, being bronglit up on habeas corpus, 250. 
 
 When habeas corpus for that purpose may be granted, 2o6, notes. 
 
 See Bail — Habeas Corpus. 
 
 PROCEEDINGS AT ASSIZES.— See AoDREasiia of Counsel-Evidence— Ex- 
 amination of Witnesses. 
 
 PROCESS CLERK.— See Process Clerk, 
 
 PROCESS, ORIGINAL.— See Original Process, 
 
 PROCHAIN AML 
 
 Authority to prosecute or defend for an ir.f.nt only to extend to suit 
 
 specilied, 020. 
 See Infant — Ejectment. 
 
 PRODUCTION OF DOCUMENTS. 
 
 No subpiiena to issue for original records exqept by order of court, 642, 
 See Inspection of Documents. 
 
 PROMISSORY NOTES, ACTIONS ON.— See Non Assumpsit, Plea «,^f. 
 
 PROVISO, TRIAL BY.— See Trial bv Proviso. 
 
 PUBLICATION OF AWARD.— See Arbitration and Award. 
 
 PUIS D.\RREIN, CONTINUANCE. 
 Wlien pleadable, 116. 
 
 't; 
 9 
 
830 
 
 INDEX OF SUBJECTS. 
 
 i. 
 
 PUIS DARREIN, CONTINUANCE— (Cow^mwrf.) 
 
 Plea of, to be accompanied by aa affidavit, 117. 
 
 Contents of affidavit, 118, h. 
 
 Time for pleading, 118, t. 
 
 Plaintiff may confess plea when pleaded, and enter up judgment for costs, 
 
 731. 
 When not to opply, 732. 
 See Pleading, 
 
 PUTTING IN BML.—See Bail, Special 
 
 QUESTIONS OF FACT, TRIAL OF, WITHOUT PLEADINGS. — S'ee Trial 
 OF Actions, &c. — Ejectment. 
 
 QUESTIONS. 
 
 To be answered by clerks and attorneys on examination for admission as 
 attorneys, 616. 
 
 QUI TAM ACTIONS.— 5cc Penal Actions. 
 
 REAL ACTIONS. 
 
 Certain actions and writs abolished, 580. 
 What are not abolished, 581, b. 
 See Real and Mixed Actions. 
 
 REAL AND MIXED ACTIONS. 
 
 Abolished except three, viz.. writ of dower, dower undd mhil habel, and 
 ejectment, 2, e. 
 
 RECOGNIZANCE. 
 
 To appear at Recorder's Court, 604. 
 In ejectment. — See Ejectment. 
 See Bail, Special. 
 
 RECORDS. 
 
 Entry of, at Nid Prius. 
 Generally, 287, v. 
 
 Time for entry of, in county causes, 288. 
 " " in town causes, 289. 
 
 The judge may permit after the time limited, 28S, v. 289. 
 In County Court cases, 290. 
 "Venire, form of, 290, 
 
 Clerks and deputy clerks are to make two lists of records entered. 
 288, 289, 
 Must be paFsed and signed by the proper clerk, 287. 
 Entries on certain, not to be made, 782. 
 Form of, to be prescribed by clerk of the crown, 695. 
 
 To be not more than 14 inches by 4 when folded, 696. 
 To bo written on at least a sheet of paper or parchment, 
 695, 696. 
 Not to be received except in proper form, 695. 
 New trial, when time for moving for expires, the record may bo delivered 
 
 to the proper attorney, 333. 
 Jlule to produce, when existence of is denied, not necessary, 643. 
 But in lieu thereof a four day notice is substituted, 643. • 
 Transmission of. 
 
 Deputy clerks arc to transmit to head officer with all exhibits iu 
 
 24 hours after notice, 831, 332, h. 
 In default, they are guilty of contempt, 332. 
 Form of notice to transmit, 332,5'. 
 
 Form of affidavit of service of notice and search, <bc., 382, k. 
 Practice when record is not produced, 333, /. 
 
 ii 
 
 it V^' 
 
INDEX OF SUBJECTS. 
 
 831 
 
 ;or costs, 
 
 See Trial 
 
 aission as 
 
 ll hahd, and 
 
 v. 289. 
 Irds entered. 
 
 Iment, 
 
 I bo delivered 
 
 343. 
 143. 
 
 exhibits in 
 |S82, k. 
 
 RECORDER. 
 
 County Court judge substituted for, 698. 
 
 RECORDER'S COURT. 
 Abolition of, 597. 
 
 Indictments in, how disposed of, 698. 
 Recognizanco to appear in, how disposed of, 604, 
 
 REFERRING MATTERS OF ACCOUNT.— 5ee Aebitratiox and Award. 
 
 REGUL/E GENERALES. 
 As to attorneys, 614. 
 In practice, 618. 
 In pleading, T06. 
 See General Rules, 
 
 REJOINING DOUBLE.— See Pleading. 
 
 REMANET UNDER LAW REFORM ACT, 
 Entry on record, as to, 606, 
 Provisions as to, 606. 
 See Costs. 
 
 REMISSION, BACK OF AWARD,— 5ee Arbitration and Award. 
 
 RENEWAL. 
 
 Of attachment. — See Attachment. 
 
 Of execution. — See Execution. 
 
 Of writ of summons. — See Summons, ^YRIT of. 
 
 REPLICATION, 
 
 Equitable commencement of, 180, 
 
 " pleading, 180, 
 Forms of, 458. 
 
 When there may be several of the same cause of action, TlO. 
 Whole or part may be denied by defendant, 132. 
 See Pleading. 
 
 REPLY. 
 
 When right of counsel to reply exists, 293, e. 
 
 See Addesses of Counsel, , 
 
 REPRESENTATIVE CHARACTER, 
 
 Of a plaintiff or defendant must be denied to be put in issue, Tl2. 
 See Pleading, 
 
 RESIDENCE, 
 
 Definition of, 23, ^. 
 
 REVISION OF TAXATION.— ^-ee Costs, 
 
 REVIVAL OF JUDGMENTS AND EXECUTIONS, ,v: '' 
 By $ uggestion. , • ? ' ■ • ' 
 
 Application to be by rule or sumraona'to show cause, 110. 
 Form of summons to enter suggestjoii, 454. 
 
 " " to entitle judgDient creditor to execution, 4.55. 
 
 During lives of parties to judgment it may issue for 6 years from 
 
 date of judgment w'ltXxovAficiri facias or writ of revivor, 408 
 Common Law presumpiiion as to satisfaction of, after one year, 
 
 407, a. 
 Proceedings whoimecessary to revive by reason of lapse of time, 
 
 409, t. 
 Upon entry of suggestion, issue of writ, execution may issue, 409. 
 
 to 
 
832 
 
 INDEX OP SUBJECTS. 
 
 REVIVAL OF JUDGMENTS AND EXECUTIONS— (Co««>mcrf.) 
 When summons is to be refused, 410. 
 Costs in such cases, 411. 
 If summons is discharged parties are at liberty to proceed by writ 
 
 of revivor, 411. 
 When unnecessary to revive, 408. 
 See Revivor, Wkit of. 
 
 REVIVOR BY SUGGESTION. 
 Death of parly. 
 
 Not to abate suit, 187. 
 Suggestion of, 188 ?<, «, 189 a. 
 
 When party dying is one of several plaintiffs or defendants, 188. 
 Death of sole plaintiff. 
 
 Practice in such case, 190. 
 
 Suggestion to revive in name of representative, 189. 
 Affidavit required to obtain, 189, e. 
 Truth of suggestion to be tried, 189. 
 Death of sole defendant. 
 
 riaintifF may suggest, 190. 
 When suggestiou traversable, 190, i. 
 
 Action may bo revived in name of executor or administrator, 191. 
 Notice of suggestion to be served on executor or administrator, 191. 
 Form of. 191, o. 
 
 Proceedings in case of non-appearance, 191. 
 
 In case of death before pleading, declaration, notice to plead and 
 sugj^estion to be served togctlier, 192. 
 
 Defendant to plead to declaration and suggestion together, 
 192. 
 In case of death after declaration, time for new defendant to plead, 
 when dcfendaiitr had not pleaded before his death, 192. 
 
 New defendant, what pleas he may plead without leave, 192. 
 He may plead forthwith by leave, 192. 
 In case of death after plea, and before issue joined, pleading by 
 
 now defendant, 192, w. 
 Rights of plaintiff as to costs, 193. 
 
 defendant " " 193, r. 
 ♦ Death ofpnrlitx between verdict and judgment. 
 
 Not to be alleged for error, 193. 
 
 Entry of judgment tnunc pro tunc, to avoid abatement, 193, b, 194, e. 
 " Judgment,'' meaning of, 193, c. 
 Remedy, when not under this section. 193, d. 
 Verdict, when to bo entered, 194. 
 Death of plaintiff or defendant between interlocutory and final jtklgment. 
 When the action does not abate, 194, h. 
 
 " Such defendant," includes sole or surviving defendant. 194, i. 
 Compelling parties to proceed. 
 
 Form of suggestion, 198, g. 
 
 " summons to proceed, 197. 
 Defendant, &c., may enter suggestion of defavlt and have judgment 
 for costs, 197, 198. 
 Marriage of female party. 
 
 Attorney appointed by wife to continue after marriage, unless the 
 
 husband countermands or ho is discharged by order, 197. 
 Not to abate action, 192. 
 Action may proceed to judgment after, 196. 
 ^ Judgment may be executed against wife or wife and husband, by 
 
 f suggestion or writ, 196. 
 
INDEX OP SUBJECTS. 
 
 833 
 
 by writ 
 
 ,8, 188. 
 
 rator, 191. 
 rator, 191. 
 
 plead and 
 a together, 
 ^t to plead, 
 leave, 192. 
 leading by 
 
 ■A, h, 194, e. 
 
 gment. 
 194, i. 
 
 c judgraent 
 
 unless the 
 197. 
 
 lusband, by 
 
 REVIVOR BY SUGGESTION— (Co«<(nwerf.) 
 
 Judgment in favor of wife, husband may issue execution on, 196 
 Proceeding against executors as to assets in.fuluro to be in nature of writ 
 
 of revivor, 414. 
 In ejectment. 
 
 Death of claimant or defendant not to cause abatement, 5.38, r).'}9, m. 
 Suggestion, where right of deceased claimant descends to another 
 
 chiimant, 639, o. 
 Such suggestion not to be traversable but may be set aside if un- 
 true, 539. p. 
 Proof to entitle surviving claimant to verdict, 540, .*. 
 Suggestion, where riglit of deceased does not survive to surviving 
 
 claimant and legal representatives are not,added, 540. 
 After such suggestion, surviving claimants may proceed to judg- 
 ment for ilieir shares, 540. 
 Sugfjcstion, where one of several claimants dies after verdict and 
 
 before execution, 540, y. 
 Effect of such suggestion, 641. 
 
 Possession of deceased share may bo ordered to the legal represen- 
 tatives, 541. 
 Suggestion of death of sole claimant, or of claimant whose share 
 
 does not survive to otlier claimants, 541. 
 Proceedings thereon, 642. 
 
 For whom judgment and execution to issue, 542. 
 Suggestion of death of one of several defendants before or after 
 
 judgment, 542. 
 Suggestion of death of sole or all defendants before trial, 548. 
 
 ^Yhen such deatii takes place after verdict, claimant is 
 entitled to judgment as if no death occurred, 544. 
 Death before trial of defendant, defending for part which others do 
 
 not defend for, 644. 
 Defending separately for part which others defend for, 645. 
 When legal representatives may appear, 546. 
 
 REVIVOR, WRIT OF. 
 
 In what cusc to mue. 
 
 In case of death of one or more defendants against whom a joint 
 
 judgment is recovered, 415. 
 May be issued if some defendants are alive, 415. 
 Banks and incorporated companies, under this section, 416. 
 Joint obligor, death of, 415, i. 
 When isKuable, 195. 
 Should follow the judgment, 411, e, 
 
 Writ, issue of, and subsequent proceedings. 
 Practice as to issue, 411. 
 Sec Revival ok Judg.mk.nts and Executions. 
 Appearance, 413. 
 Contcnt.s of, 411. 
 Costs ui)on, 412. 
 Direction of, 411. 
 Form of, 412, 455. 
 
 To be similar to icire facias, 195, e. 
 How sued out, 412. 
 IIow proceeded upon. 195, 412. 
 Pleadings upon, 412. 
 
 Proceedings in case of default in appearance, 195. 
 Rule or judge's order for, when uecessury, 413. 
 53 
 
834 
 
 INDEX OF SUBJECTS. 
 
 a 
 
 '4 
 
 REVIVOR, WRIT GF— {Continued.) 
 
 Rule to show cause, when necessary, 41 8j 
 
 " to call on party to show cause in ten days, 411. 
 Teste of, 411. 
 
 Practice, when judgment is less than ten years old, 413, 
 " when more than 10, 413. 
 " " " 15, 413. 
 
 " " " 20, 413, r, a. 
 
 See Scire Facias — Revival of Judgments and Executions. 
 
 REVOCATION OF AWARD AND REFERENCE. — /Jec Arbitration and 
 Award. 
 
 RIGHT OF WAY.— ^ee Not Gujlty, Plea of. 
 
 RIGHT TO REPLY.— 5ee Aodresses of Counsel. 
 
 ROLL AND RECORD. 
 
 Certain entries not to be made on, 782. 
 
 See Clerks and Deputv Clerks of the Crown — Rbvivor. 
 
 RULES OF COURT.— 5ee General Rules of Court. 
 
 RULES IN TERM.— 5ee County Court. 
 
 RULES, SUMMONSES AND ORDERS. 
 Mules. 
 
 Date of, 683. 
 
 Certain, maybe obtained from Clp-bi .."■d Deputy Clerks of the 
 
 Crown, 683. 
 Enlarging, 683, 
 
 When enlarged rules are to be drawn up for, 684. 
 To show cause, when to be a stay of proceedings, 686. 
 Making judge's order a rule of court, 685, 686, 686 w, 
 
 " submission a rule of court — See Arbitration and Award. 
 Not required to plead several pleas, &c., when judge's order is 
 obtained, 145, 
 SummoiiKcs. 
 
 Only one for the same matter is required, 684. 
 
 Party obtaining, entitled to an order on the return, unless cause is 
 
 shown, 684, 
 Half-hour's grace on attendance before a master, 684. 
 Orders. 
 
 Judge's order, how enforced, 685, », 
 
 What amounts to disobedience of, 686. 
 To sign judgment by consent, what must be done to obtain, 684. 
 Rule in such case, when defendant has appeared by attorney, 685, 
 " " " " does not appear, or appears in 
 
 person, 685. 
 See Motions on Affida tits, &o. 
 
 SATISFACTION OF JUDGMENT. 
 
 Common law, presumption as to, 40*7, a. 
 Mode of Acknowledging, 657. 
 Satisfactmi piece. 
 
 Declaration of attesting attorney, 657. 
 
 Entry of, 063 
 
 Form of, 658, 
 
 Signing, who to be signed by, 667. 
 
 By plaintiff may bo dispensed with, 667, n. 
 By personal representative, 657. 
 TrausmissioQ of, 657. 
 
fwmt I PI ( V Jii ygi. i.-'i^p " f ^ 
 
 INDEX OP SUBJECTS. 
 
 805 
 
 N8. 
 
 UTION AND 
 
 irks of the 
 
 ND Award. 
 I'a order is 
 
 ess cause is 
 
 atain, 684. 
 torney, 685. 
 r appears in 
 
 SCIRE FACIAS, WRIT OF. 
 
 Against whom to be issued, 414. 
 
 Public companies, 415, c. 
 
 In England, 416,^. 
 Appearance to, wliat is sufficient, ■6.')6 
 Icste, du-ection, &c.., as in writs of revivor 414 
 On a county recognizance to be brought in York onW rkk 
 Form, of not to express when taken, 655 ' '^' ^^^• 
 
 Judgment on, liow to be signed. 655 
 
 PhiinHff°!."'°T'"'^ ^° revive judgm'ents, 408, 408 i 
 
 ^ni creris giro rrtrbcTz fr^--* «^ -^«- ««^- 
 
 .pear, 656, 656<-. ° *° ''^ ^ ''"•5' '"^'''3, except rules to ap- 
 
 Time to appear to, 656. 
 rrerogative of crown not to be affected, 656 
 See Revivor, Writ of. 
 
 SECURITIES FOR MONEY. 
 
 May be seized and sued on bv sheriff SfiT 
 See Execution, Writ of. ' "* 
 
 SECURITY FOR COSTS 
 
 When to be made, 633. 
 
 Not until after appearance in eiectment KTq « 
 Pi-ecedents „s to, ^30, m. 631.13?*' ''^^'^• 
 
 678, m. ^"^ '"'* '° ejectment, for same cause of action 
 
 SEAL. 
 
 A Court of Record may appoint one. 6 / 
 SEDUCTION. 
 
 SERVICE. 
 
 Of writ of attachment._^.«;ATTAcnME.VT ok Goods 
 ty Uapias. 
 
 Sjct'ottvS:?!."'*'" ^"'^ "°""^^ ^-- ^-^t^. 31. 
 Af « .,^<^"'.ce of capias, wJiere to be made 8i) « qi 
 Of wnt of cjectment-^ee Ejectment. ' ' ' 
 
 Of pleadingn, orders and notices 
 
 Agent at Toronto, when to be allowed on 60 « ,. 
 
 H„. .„lc. 1, .. u cerecW ,. ^ „u.A entry .«, M.^ made 
 
 Hours for service, 688. 
 
 When fn^l° * of serving after hours, 688. 
 
 When to be oa defendant and when to be oa his attorney. 69, o, s. . 
 
 I 
 
 ill 
 
836 
 
 INDEX OF SUDJEOTS. 
 
 SERYlCE—(Cont!nucd.) 
 
 Service may be effected in nny county, 99. 
 
 When originals must be shown, 688. 
 
 When party sues or defends in person, a memorandum of place for 
 
 service not more than two miles away, is to be left wtth clerk, 291 , 
 Practice when no such memorandum is left, 691. 
 When such party afterwards employs an attorney and gives notice 
 
 of the fact, the attorney is to be served, 692. 
 Summons for attachment for non-return by sheriff, 383, p. 
 0/ writ of summons. 
 
 Affidavit of service, 24. 
 May be effected in any county, 17. 
 When to be personal, 17, v. 
 
 Leave to proceed when personal service has not been effected, 19. 
 On corporation aggregate, 21, 22. 
 Memorandum of service to be endorsed, 23. 
 See Summons, Writ of. 
 
 SESSIONS. — See General Sessions. 
 
 SETTING ASIDE AN AWARD.— 5tfe Arditratiok and Awasd. 
 
 SETTING DOWN CAUSES FOR ARGUMENT. 
 In term, 625. 
 Form of notice, 625, A. 
 
 SET-OFF. 
 
 Where plea of is unnecessary, 721, 721, a. 
 
 Of damages or costs not to be allowed to prejudice of attorneys lien, 652. 
 
 Particulars of — See Particulars of Set-off. 
 
 See Pleading. 
 
 SEVERAL COUNTS AND PLEAS TO SAME CAUSE OF ACTION. — .^fcf 
 General R jles of Court. 
 
 SEVERAL MATTERS OF PLEAS.— -See pLE.tDiNO. 
 
 SHERIFF. 
 
 Bail tc. — See Bail to Sheriff. 
 
 Sheriff's fees. 
 
 When the sheriff is entitled to fees only, 590. 
 
 Reduction of, if unreasonable, 590. 
 
 In cases unprovided for, may be allowed by a judge, 690. 
 
 Reasonable fees and disbursements allowed in Replevin suits, 761. 
 
 Tariff of. in criminal justice, 7G6. 
 " additional, 761. 
 See Poundage. — Sheriff' Rule to Return Writ. 
 
 Rule to bring in body. 
 
 To be a side bar rule, 675. 
 
 May be issued after he has left the office, 676. 
 
 " " iij term or vacation, 675. 
 Attachment for disobedience to, issue of in vacation, 676. 
 See Bail. 
 
 Rule to return writs. 
 
 To be six day rules, 675. 
 
 Whence issuable, 675. 
 
 When and where writ is to be filed, 675. 
 
 Endorsement to be made when filed, 675. 
 
 Who may issue, 880. 
 
INDEX OF SUBJECTS. 
 
 837 
 
 place for 
 .erk,291. 
 
 69 notice 
 
 "ected, 19. 
 
 alien, 652. 
 
 ION. — 'f'fif 
 
 .90. 
 
 in suitB, T61. 
 
 i16. 
 
 SHERIFF— ( Continued. ) 
 
 Duty of sheriffs, &c., wlicn sorved with writs, 380. 
 
 " wlien served with a demand to return writ, 380, h. 
 Effect of rule as to loss of fees, 3S1, 881, e. 
 When sheriff may be liijjle to, 388. 
 Costs for non-return of writs, 382. 
 
 When costs of application for, may be given to sheriff, 383. 
 Summons for an attachment for non-return when granted, 383. 
 Service of such summons, 383,/). 
 Disposal of an return, 384. 
 When attachment may issue, 385. 
 To whom to be granted. S85, ». 
 When habeas corpus may bo granted and sheriff admitted to bail, 
 
 8&6. 
 Proceedings on return of cepi corpwt to writ of attachment, 386, n, 
 Wliero attaeliment and habeas corpus are returnable, 387. 
 Wliere slieriff 's non-return renders him liable to forfeit his ofiicc, 
 
 387. 
 Wliere he may bo sued for forfeit of $400, 387, 388, ?. 
 Who may sue for such forfeit and time limited for bringing suit, 
 
 388. 
 Sureties of sheriff are liable for acts done colore officii after forfeiture, 
 
 387, ir. 
 What other remedies exist, 388, n. 
 Sale ot lauds. — See Attachment of Goods — Execution, Writs or. 
 
 SHORT TITLE OF COMMON LAW PROCEDURE ACT, 448. 
 
 SIMPLE CONTRACT, ACTION ON.— /See Non-assumpsit Pleading. 
 
 SITTINGS IN COUNTY COURT.— 5ce Cou.vty Court. 
 
 SLANDER. 
 
 Payment into court in actions not .allowed in actions of, 110. 
 Pleading of pleadings in respect of the trade. — See Not Guiltt, Plea of — 
 Pleading. 
 
 SOLE PLAINTIFF OR DEFENDANT, DEATH OV.—Sce Revivor in Eject- 
 ment. 
 
 SPECIAL BAIL. — See Attachment of Goons — Bail, Svecial. 
 
 SPECIAL CASES. 
 
 Before issue joined. 
 
 Questions of law maybe stated for opinion of the judges after issue 
 of writ and before judgment, 204. 
 
 What questions of law can be raised by, 20.5, c. 
 Questions of fact, necessarily involved, will be sent for trial, 205, </, 
 Consent and order of judge necessarj- for judgment on, 205, 
 Agreement as to ))aynient of a ti.xed sum after judgment on, 207. 
 Agreement allowing court to ascertain amount, 207. 
 Setting down for judgment, 625. 
 Costs, judgment may be with i)r without, 207. 
 
 To follow the event in absence of agreement, 207. 
 Under the old practice, 2t)7, p. 
 To successful party, meaning of, 207, q. 
 After issue joined. 
 
 How to be stated, 208, 
 
 Agreement as to entrj' of judgment, 208. 
 
 When judgment may be entered, 208. 
 
838 
 
 INDEX OP SUBJECTS. 
 
 SPECIAL CASE— (Con^nufrf.) 
 
 Stated by an arbitrator, 220, a, e, 
 
 See Akbitration ask Award. 
 
 Stated in ejectment. — Sec Ejectmk.nt. 
 SPECIAL OBJECTIONS BY DEMURRER.— 5«c Demurrbb. 
 
 SPECIAL ENDORSEMENTS ON WRIT OF [SUMMONS- — 5(;e Si;mmon.s, 
 
 Writ ok. 
 SPECIAL TRAVERSES. 
 Abolished, 133. 
 
 See Pleadiko. 
 
 SPECIAL VERDICT. 
 
 May be found in ejectment, 532, l. 
 See Ejectment. 
 
 SPECIALTIES, ACTIONS ON. 
 
 Effect of ploa oinon est factum, 720. 
 
 Other pleas to be pleaded specially, 720, 
 See NoN est Factum — Pleadi.no. 
 
 SPECIFIC DELIVERY OF CHATTELS.— 5fce Chattels, Specific Delivert ok. 
 
 STATUTE, GENERAL ISSUE W£.—See General issue by Statute, 
 
 STAY OF PROCEEDINGS. 
 
 Wlierc there is an agreement to refer all matters in dispute to arbi( ra- 
 tion, 232. 
 
 By landlord, when rent paid, 559. 
 
 When allowed on payment of debt and costs, 635. 
 
 When the rule operates from, 635, ?/ 
 
 When same cause of action, between same parties, is pending out of On 
 tavio, 586. 
 
 See Arbitration a.vd Award — Bail, Special — Ejectment — Landlord and 
 Tenant — Security for Costs. 
 
 STOCK IN BANKS AND INCORPORATED COMPANIES. 
 May be taken in execution and sold, 361. 
 Transfer of to purchaser, how efifected, 362. 
 See Execution, Writ of, 
 
 STRIKING OUT PLEAS.— ^e«> Pleading. 
 
 SUBMISSION TO ARBITRATION.— 5e8 Arbitration and Award. 
 
 SUBPCENA. 
 
 Any number of names may be included in, 701. 
 
 Costs of, only one allowed generally, 701, 
 
 When more than one may be paid, 701, 
 
 See Costs, Taxation of. 
 
 SUBPCENA TO PRODUCE RECORD See General Rules of Court. 
 
 SUBSTANCE OF PLEADINGS.— /See Pleadings. 
 
 SUBSTITUTE FOR ARBITRATOR.— -See Arbitration and Award, 
 
 SUGGESTION TO REVIVE.— 5ee Revivor— Revival of Judgment, Ac. 
 
 SUMMARY REMEDY AGAINST OVERHOLDING TENANTS,— /See Eject- 
 ment. 
 
 SUMMONS, WRIT OF. 
 
 Actions which are to be commenced by, 2, 
 
 Where defendant la held to special bail actions are not to be com- 
 menced by, 2, 
 Must be carried to judgment la the offices commenced in, 7. 
 
INDEX OF SUBJECTS. 
 
 889 
 
 UMMONS, 
 
 LIVERT OK. 
 
 iO arbilra- 
 
 out of On 
 
 snLonP ASP 
 
 JURT. 
 
 |ID. 
 |T, «feC. 
 
 -See Eject- 
 
 \,i to be com- 
 1 in. "J- 
 
 SUMMONS, WRIT OT—iConlinncd.) 
 Amendment of irregnlnritm. 
 
 In (Inte, cndoiscincnt, or teste, 60, v. 
 In names of iinrties, 40, v. 
 Costs of arocndmeiit, 52, w. 
 Where wrong form has been used, 5.3. 
 As to Bdttiiiij nsi<lc for irregulurity, 48, x, «. 
 Wlien allowed, 49, v, 50, a. 
 Time within which allowed, 62, %o. 
 Allornrjf. 
 
 May be called upon to Jei-larn whether the writ issued with his 
 
 privity, 04, x. 
 And if writ did not so Issue iiroceedina;s will be stayed, 55,7. 
 May be called on to disclose place of reaiilunco of plaintiff, 64, (/, i. 
 Concurrent writs. 
 
 Issue of, 25, <. n. 
 
 Time for such issue, 25. 
 Duration of, 2(5. 
 
 Memornndum of officer as to writ of, 26, w. 
 Renewal of, 27. 
 Contents of. 
 
 Date of writ, 8, 7, 9. 
 
 Form or cause of action need not bo stated in, 8, 0. 
 Names of defendants to be included, 8, p. 
 Residence of defendants, 2, H, r/, h. 
 
 When incorrectly stated, 3, 7i. 
 Copy served will bo assumed /)r /ma /ac/c to bo a true copy, 12, 2. 
 Duration of. 
 
 To continue in force six months, 20, 
 Eut may be renewed, 27. 
 Endorsement on. 
 
 Attorneys name and abode to be endorsed, 0. 
 
 Also the name and abode of the ju-incipal if issued by agent, 9 rr, s, (. 
 
 Either the name of the individual attorney or of the firm may be 
 
 endorsed, 9, s. 
 Of plaintiffs in person, memorandum to bo evidence as to resi- 
 dence, 11. 
 
 Such memorandum to bo full, d'C„ 11, m, w. 
 Attorneys costs, endorsement of, 11. 
 Taxation of such costs, 14, i. 
 Abatement of such costs, 12, b. 
 Of plaintiff's claim for debt, costs, &c., 11. 
 
 Form of, LS. 
 If amount so endorsed is paid in eight days proceedings will bo 
 
 stayed, 12. 
 So if too large an amount is endorsed the action will be stayed on 
 
 payment of the amount due, 12. 
 Computation for the time of payment, 1 2, c. 
 Object of endorsement considered, 12, d, e. 
 Irregularity in and amendment of, 13, g. 
 Manner of, 13, A. 
 Form of, and of endorsement, 449. 
 
 Is&ue of, in the Superior Courts. 
 
 To be by process clerks and deputy clerks of the Crown, 5. 
 To be alternately from Queen's Bench and Common Pleas, 5. 
 At officers house irregular, 5, k. 
 
840 
 
 INDEX OP SUHJECT8, 
 
 1 i. 
 
 h - '< 
 
 h J 
 
 SUMMONS, WRIT OT—{Con(mMr<l.) 
 
 Without nuthority, piinislinblo by attachment, 6, k. 
 
 To bo utiilcr senl of court, (1, I. 
 
 OlRco from whence issued to be noted in margin, 6. 
 
 Teste of, C. 
 
 In transitory actions moy issue from any office, 7. 
 
 In local actions from proper county, 7. 
 
 In County Court actions, to be issued by County Court Clerks, 5, 
 
 Leave to proceed lohen service in not pertonnl, dr. 
 
 When leave to proceed may be granted, 19 a;, 20. 
 
 When the writ comes to defendants knowledge, 19, x. 
 
 When defendant keeps out of the way purposely, 19, x. 
 
 Order may bo granted on affidavit in first instance and does not 
 require service, 202. 
 
 Order for, must be applied for promptly, 20, a. 
 
 Wlien the cause of action arose in Ontario, 43, v, 44, 
 
 Affidavit on motion for, before whom to be sworn, 47, k, e. 
 
 Cause of action, meaning of, 43, «i. 
 
 Plaintiff must prove his claim before entering judgment under, 44. 
 
 Materials for obtaining, 44, ;/. 
 
 Against on alien out of the jurisdiction, 45, </, e. 
 
 Notice to be served, 46, g. 
 Jiencwal of. 
 
 May bo renewed at any time before expiring, for six months if not 
 served, 27. 
 
 To have a memorandum on margin, 28. 
 
 What shall be evidence of renewal, 28, h, i, 
 
 Prjccipe for, 28, x. 
 
 Service of — Personal. 
 
 Affidavit of, what it should show, 24, ff. 
 
 To be personal when practicable, 17, v. 
 
 English practice as to, 17, v. 
 
 Old practice as to, 17, u. 
 
 What are reasonable efforts to serve, 19, x. 
 
 Where it may bo effected, 17. 
 
 Endorsement of date of service to be made on writ, 32, ii. 
 
 To be mentioned in affidavit of service, 24. 
 
 Object of, 24, o. 
 
 When to be made, 24, 24^. 
 Sheriff, duties of as to, 22. 
 When another than the sheriff may serve and obtain the fees, (fee, 
 
 therefor, 22, ?. 
 Practice when the sheriff fails or neglects to serve witiiin fifteen 
 days, 22. 
 Service on corporations. 
 
 On corporation aggregate, how to be effected, 21 d, e, 22, /. 
 On station master for a railway corporation bad, 22,/. 
 On corporation sole, how to bo effected, 21, c. 
 
 Service out of the jurisdiction. 
 
 Difference from ordinary writ, 42, s, f. 
 
 Form of endorsements, 451, 452. 
 
 Indorsement required, 42. 
 
 Issue of, 42. 
 
 May be concurrent with one for service in the jurisdiction, 45, d. 
 
 Time for appearance, how regulated, 42. 
 
 Service of, 43. 
 
 H 
 
-, A 
 
 INDEX OF sunjKcrs. 
 
 841 
 
 ction, 45, d. 
 
 SUMMONSES.— 5f<; Rli-ks, Simmonses and Oudkks. 
 
 SLTEUSHDKAS. WHIT OF. 
 
 Wlicii tk'fondant ill... luirged bj', 37. 
 iS'cc L't.wt. — Uecoqnizanck. 
 
 HURRKNDini OF BAIL.— -SVc Bail, Spkcial. 
 
 TABLE OF COSTS.— .Sro Costs. 
 
 TAKING AND CONVEUSION.— Sf<>.? Not Guiltt, 
 
 TARIFF OF COSTS AND FEES IN COUNTY COURT.— 5ce Fonus. 
 
 I'owor of judges to fraiiit;. — See Costs. 
 TAXATION OF COSTS.— See Costs. 
 
 TENANT. 
 
 Penalty for not informing his Inndlord of issuo of writ of ejectment, 551. 
 &e Eject.ment — Landloud anu Tenant. 
 
 TENANTS IN COMMON IN ACTIONS OF EJECTMENT.— &« Ejectment. 
 
 TERSI MOTIONS.— 5<?c New Tuial. 
 
 TERRITORIAL JURISDICTION OF SUPERIOR COURTS. 
 Ddint'd. 2/. 
 
 TESTE. — See Capias, Wuit ok — Ejectment, Writ of — Summons, Writ or. 
 
 TIME, COMPUTATION OV.—See Ariiitration and A\vari>— Computation of 
 Time — Declaration — Pleauixq. 
 
 TITLE OF CLAIMANT TN EJECTMENT. 
 Whion forninl defects will be aided, 527. 
 S(.e Ejectment. 
 
 TORTS.— .Sf^ Not Guiltv. 
 
 TOWN AND COUNTY CAUSES. 
 
 What are town causes and wliat county causes, S20. 
 See Records. 
 
 TRANSITORY ACTIONS. 
 
 Definition of, 7 n. 
 TRANSillSSlON OF JIXIL.— Sec Bail, Special. 
 
 RECORDS.— Ste Deputy Clerks of Crown. 
 TRAVERSES.- 5i<! Pleading. 
 
 TRESPASS AND CASE. 
 
 Costs when verdict under *8, 587. 
 
 Provision if judge refuses to certify, 587, 
 
 See Costs. 
 TRESPASS TO LAND. 
 
 Tlie close or place to be designated by snffici.-nt description, 728. 
 
 In default, plaintiff will be bound to amend with costs, 729. 
 
 Effect of not guilty in such action, 729. 
 
 See Not Guiltv — Pleading, 
 
 TRIAL AMENDMENTS AT —See Amendments at Trial. 
 
 TRIAL AND ASSESSMENT. 
 
 Extension of time for going to trial, 330. 
 l-isucs of/act and law. 
 
 Priority of trial of, 135, ij. 
 
 Latter must be first c'isposed of unless expressly ordered 
 otherwise, 765. 
 
842 
 
 INDEX OP SUBJECTS. 
 
 I 
 
 (it 
 
 TRIAL AND ASSESSMENT— (Co«^in»wfl?.) 
 Neglect to go to trial. 
 
 In Superior Court, proceedings in case of, 326, 327. 
 
 When there are issues of law, prictice as to trial of issues of fact. 
 326. 
 
 What amounts to suoh neglect, 327, n. 
 
 In County Court, proceedings in case of, 328. 
 
 Notice to plaintiff to proceed, 328. 
 
 In case of default after notice defendant may suggest default, 329. 
 
 Such suggestion traversable, 329. 
 
 Form of suggestion, 329, a. 
 
 After entry of suggestion defendant may sign judgment for costs. 
 330. 
 
 See TuiAL by Proviso. 
 Notice of trial. 
 
 ■\Vhen a countermand is given no costs of the day are allowed, 323,/. 
 
 Sec Notice of Tuial. 
 Postponement of. 
 
 At the trial, 291, ^ 
 
 Terms may be Imposed, 291. 
 Proceedings at. — See Assizes, Puocefpivos at. 
 Under Law Reform Act. 
 
 What Superior Court cases may be tried in County Court without 
 an order, 599. 
 
 Superior Court judge may order otherwise, 599. 
 
 AVhat County Court cases may be tried in Superior Court without 
 an order, 599. 
 
 Beoks to be provided by County Court clerk for latter cases, 601. 
 
 On motions for new trials certified copies of such notes may be 
 taken, 601. 
 
 Notice of trial in cases under this act, 600. 
 
 Records, entry of, 600. 
 
 Motions for new trial, &c., 600. 
 Without a jury. 
 
 Effect of finding by a judge, 602. 
 
 Such finding may be moved against, 602. 
 
 May be had without a jury unless notice is filed with the last 
 pleading, 202 h, 601. 
 
 Form of notice, 202, h. 
 See Amendment at Trial — Evidence — New Trials. 
 
 TRIAL IN EJECTMENT.— fi-ee Ejectment. 
 
 TRIAL OF QUESTIONS OF FACT WITHOUT PLEADINGS. 
 When it may be ordered, 201. 
 Consent necessary to, 201, b. 
 Time of statement of, 454. 
 Questions to be tried, 201, d. 
 
 How to be stated, 202. 
 Proceedings at trial, entry of issue, 202. 
 
 To be subject to ordinary conti'ol and jurisdiction of the court, 202. 
 Parties may agree to pay according to the finding of the jurj', 203. 
 Or a fixed sum in event of the jury finding the affirmative or negative of 
 issues, 203. 
 
 Effect of finding of jury in the latter case, 203. 
 
 Such agreement not compulsory after verdict, 203, k. 
 
 And need not be embodied in the issue, «fec., 203, 1. 
 
 Costs when such agreement exists, 203, o. 
 
INDEX OP SUBJECTS. 
 
 843 
 
 f fact, 
 
 t, 329. 
 : costs, 
 
 „ 823,/. 
 
 , without 
 
 ; witllOVlt 
 
 lases, 001. 
 3 may be 
 
 Lh the last 
 
 court, 202. 
 
 203. _ 
 luegativo ol 
 
 TRIAL OF QUESTIONS OF FACT WITHOUT TLEADllsGS— {Continued.) 
 
 Execuvion, issue of, 204. 
 
 "When immediate execution is not allowed, 204, t. 
 
 Form 01 venue in such case, 203, m. 
 
 Judgment, entry of, 203, 204. 
 
 Effect of judgment, 204. 
 
 llecordiug proceedings upon issue at instance of either party, 204, i\ 
 
 TRIAL BY PROVISO. 
 
 No rule is necessary for, 330. 
 
 When plaintiff may obtain extension of time to go to trial, 330, d. 
 Wlien defendant may sign judgment for default of going to trial, 329, b. 
 AVhere defendant may bring case to trial by proviso, 331, e. 
 
 UMPIRE. — See Arbitration and Award. 
 
 VACATION. 
 
 Declaration not to be filed in, 99. 
 
 The long vacation does not count in time of pleading, 99. 
 
 See Declaration — Pleading, 
 
 VARIANCES. 
 
 Amendment of, 307, 308, 309 
 
 Sfp Amendment at Trial — A iendment of Variances. 
 
 VENUE. 
 
 The Crown may lay the venue in any county, 7, n, n. 
 
 The name of tlic county stated in the margin shall be the venue, 712. 
 
 No otlier venue required in body of declaration, 712. 
 
 Local description to be still given when required, 712. 
 
 Change of. 
 
 When it may be had, 105 h, 628. 
 
 Not to be changed except on order or consent, 628. 
 
 Proceedings after a change to be carried on in original office, 106 
 
 The judge may order a change, 109. 
 
 Entry of suggestion of ciiange on record, 109. 
 
 Practice as to, in criminal matters, 109, 1. 
 In local actions, 109, 1. 
 See Ejectment — Pleading. 
 
 VENIRE. 
 
 Form of, 290. 
 
 May be altered to suit particular cases, 290. 
 
 See Trial. 
 
 VERDICT. 
 
 By judges instead of a new trial, 607. 
 
 Entry of for plaintiff, on v/hat issues allowed, 128. 
 
 Defendant, in respect of which pleas, 129, b. 
 On plea of set-off when larger sum is proved due him, 129. 
 Interest on, in what cases allowed, 585. 
 
 To what date allowed, 580. 
 Rule to enter — See New Trials. 
 
 VEXATIOUS DEFENCES IN EJECTMENT.— 5fe Ejectment. 
 
 VICE COMES NON MISIT BREVE, ENTRY OF ON RECORD. — Scr 
 General Rules of Court. 
 
 VIEW BY JURY. 
 
 Form of order for. 6)5, t. 
 Fees to be deposited for, 615. 
 
844 
 
 INDEX OP SUBJECTS. 
 
 a 
 
 
 '"'#' 
 
 ill 
 
 if 
 
 VIEW BY JURY— {Coniimted.) 
 
 How order is to be obtained, 645. 
 Inspection by the jury, 272, b. 
 Table of travelling fees, 646. 
 
 WAGER OF LAW.— .%« Pleading. 
 
 WARRANT OF ATTORNEY-— ^ee Cognovit. 
 
 WARRAN'i'V. — See Ejectment — Non Assumpsit. 
 
 WITNESSES. 
 
 Attendance of, before Arbitrator. — See Arbitrator and Award. 
 Examination of — See Evidence — Examination of Parties and Witnesses. 
 
 WRIT OF CAPIAS— -S'ee Capias, Writ of. 
 
 WRIT OF EJECTMENT. 
 
 Certain old writs abolished, 580. 
 
 Sec EjECTilKNT. 
 
 AVRIT OF ENO.UIRY. 
 Abollsl.„a, 207. 
 See SnERiKF. 
 
 WRIT OF ERROR. 
 
 When to lie on County Court judgment, 609. 
 Proceedings on to conform to English practice, 609. 
 Judge to have power to make rules as to, 609. 
 
 WRIT OF EXECUTION TO FIX BAIL. 
 May be issued in vacation, 378. 
 See Bail — Capias ad satisfaciendum. 
 
 WRIT OF REVIVOR.— /Scc'Revivor, Writ of— Revival of Judgments. 
 
 WRIT OF SUMMONS.— /Sec Summons, Writ of. 
 
 YORK. 
 
 Re-united to City of Toronto for certain purposes, 603. 
 
 COrP, CLARK & CO., PnlNTEBS, 07 k 09 COLDOnNE STREFf, TORONTO. 
 
fD Award. 
 
 TIES AND "Witnesses. 
 
 JunGSIEN'TS 
 
 RONTO.