V v^!^ ^^^ ^\^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I IA£12.8 ■so ^"^ m m ^ |i£ 12.0 2.5 2.2 11^ nil 1.4 V] (^ /2 ""^J^ ^J^ Y ^ 7 Photographic Sciences Corporalion 23 WiST MAIN STMET WEBSTER, N.Y. 14SS0 (716)872-4303 4!^. 4^ ■%- CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical MIcroreproductions / Institut Canadian de microreproductions historiques ;V Technical and Bibliographic Notes/Notes techniques et bibliographiques The totti The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. D D D D Coloured covers/ Couverture de couleur Covers damaged/ Couverture endommagde Covers restored and/or laminated/ Couverture restaurde et/ou pelliculee Cover title missing/ Le titre de couverture manque □ Coloured maps/ Cartes gdographiques en cou(v,.L'r □ Coloured init (i.e. other than bhm or Llack)/ Encre de couleur (i.e. autre que ^> ai^o ou noire) D D D D D Coloured plates and/or illustrations/ Planches et/ou Illustrations en couleur Bound with other material/ Reli6 avec d'autres documents Tight binding may cause shadows or distortion along interior margin/ La re Mure serr6e peut causer de I'ombre ou de la distortion le long de la marge int^rieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajoutdes lors d'une restauration apparaissent dans le texte, mais, lorsque cela 6tait possible, ces pages n'ont pas 6t6 filmdes. Additional comments:/ Commentaires suppl6mentaires: L'Institut a microf ilmd le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Les details de cet exemplaire qui sont peut-Atre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la mdthode normala de filmage sont indiquds ci-dessous. □ Coloured pages/ Pages de couleur □ Pages damaged/ Pages endommagdes Pages restored and/oi Pages restaurdes et/ou peilicul6es Pages discoloured, stained or foxei Pages ddcolor^es. tachet6es ou piqudes Pages detached/ Pages ddtachdes I — I Pages restored and/or laminated/ [~T1 Pages discoloured, stained or foxed/ I I Pages detached/ The posa of t» filml Orig begi the I sion othfl first sion or ill r^ Showthrough/ Transparence □ Quality of print varies/ Quaiitd indgale de I'impression I I Includes supplementary material/ D D Comprend du materiel suppi^mentaire Only edition available/ Seule Edition disponible Pages wholly or partially obscured by errata slips, tissues, etc.. have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure. etc.. ont dtd film6es d nouveau de fapon & obtenir la meilleure image possible. The shal TINI whi< Map difff entii begi righ reqii met This item is filmed at the reduction ratio checked below/ Ce document est film6 au taux de rMuction indiquA ci-dessous. 10X 14X 18X 22X 12X 16X y 20X 26X 30X 24X 28X n 32X Is J ifier le ige The copy filmed here has been reproducer! thenks to the generosity of: Moritset Library UniveriKy of Ottawa The Images appearing here are th« ^.st quality possible considering the condition b^ d legibility of the original copy and in Iceeping with the filming contract specifications. L'exempiaire filmA fut reproduit grAce A la gtnirositA de: Biblioth^ue Morisset UniveraM d'Ottawa Les images suivantes ont 6t6 reproduites avec le plus grand soln. compte tenu de la condition et de la netteti de Texemplaire f ilm6, et en conformity avec les conditions du contrat de filmage. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or Illustrated Impres- sion, or the bacit cover when appropriate, All other original copies are filmed beginning on the first page with a orinted or illustrated Impres- sion, and ending on the last page with a printed or Illustrated Impression. The last recorded frame on each microfiche shall contain the symbol -^> (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Maps, plates, charts, etc.. may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hend corner, left to right and top to bottom, as many frames as required. The following diagrams iliust ate the method: Les exemplalres origlnaux dont la couverture en papier est imprimte sont fiimto en commen^ant par le premier plat et en termlnant soit par la dernlAre page qui comporte une empreinte d'Impression ou d'lElustratlon. soit par le second plat, selon le cas. Tous les autres exemplalres origineux sont flim6s en commen^ant par la premlAre page qui comporte une empreinte d'Impression ou d'illustratlon et en termlnant par la dernlAre page qui comporte une telle empreinte. Un des symboies sulvants apparaftra sur la derniire image de cheque microfiche, selon le cas: le symbole — ► signifie "A SUIVRE". le symboie V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent Atre filmte A des taux de reduction dIffArents. Lorsque le document est trop grand pour Atre reproduit en un seul clichA, 11 est filmA A partir de i'engie supArieur gauche, de geuche A drolte, et de heut en bas, en prenant le nombre d'images nAcessalre. Les diagrammes sulvants illustrent la mAthode. ata slure. 3 12X 1 2 3 4 6 6 N TV Bat I ' .. THE Ll.b :bl5LAiivii LJ6HARY, ■ ^! DIVISION COURTS AQ^i, OF 1880.-=^- - ^iO. WITH NUMEROUS PRACTICAL AND EXPLANATORY NOTES; TOGETHER WITH APPROPRIATE FORMS. ALSO, A REPRINT OP ALL THE DECISIONS IN THE ONTARIO COURTS AFFECTINO DIVISION COURT LAW OR THE DUTIES OP OPFICERS, SINCE THE PUBLICATION OP " o'bRIBN's DIVISION COURT MANUAL, 1879." A TABLE OF DIVISION COURT OFFICERS, CORRECTED TO DATE ; THE RULES OF NOVEMBER, 1879. AND NEW TARIFF OF FEES, AND A FULL INDEX. BT HENEY O'BRIEN, Barrtater-ot-lrow; Compiler of "Harrison and O'Brien' " Caruxda Law Joumal.'j WILLING & W MDCOCLX; OVJPL-ICATC DISPOSED Entered according to the Act of the Parliament of Canada, in the year One Thousand Eight Hundred and Eighty, by Hbmrt O'Brun, in the Office of the Minister of Agriculture. JD9d FRINTBD AND BOUKO BT HUNTER, ROSE & CO., TORONTO. I >^' ,^ TO HIS HONOUJl JAMES ROBERT GOWAN, fifeauman of l^e J^oarb ol (Jounfj) lubges, HIS HONOUR JUDGE HUGHES, AND OTHER JUDGES WHO ADORN THE COUNTY COURT BENCH, TO WHOM THE EDITOR 18 INDEBTED FOR INVALUABLE AID IN THE PREPARATION OF THE SEVERAL EDITIONS OF THIS WORK, THIS VOLUME IS INSCRIBED. PREFACE The changes made in Division Court administration, by the Act of last session touch mainly upon the following points : — Increas>^d jurisdiction, with an appeal under cer- tain circumstances to the Court of Appeal ; a provision for the appointment of an Inspector of Division Courts; the appointment of clerks and bailiffs by the Government of the day ; a slight alteration in the mode of selecting jurors ; appeals under the Master and Servant Act ; to- gether with numerous miscellaneous provisions intended to facilitate the practice in the Courts, or to remedy some difficulties or anomalies in the working of the Act. The Act, as at first introduced, was not of an elaborate nature, but it rapidly grew as suggestions poured in. The result that might have been anticipated took place. Alterations were hurriedly made, and new sections were hastily adopted. Many perplexing questions have thus arisen, and there is an obscurity on many points which will probably require enlightenment either by Rules of the Judges or further action of the Legislature at some future time. It has been the aim of the Editor to endeavour, by a careful examination of the Statute, to throw as much light as he could upon the many difficulties that meet a careful reader in almost every section, whilst, at the same time, giving to those engaged in the working of the Divis- vi PREFACE. ion Courts — clerks, bailiffs, lawyers, and others — full, ex- plicit and practical directions, appropriate to the various matters legislated upon. Whether he has been successful in this effort, it is for others to judge. Time has been taken to do this thoroughly and carefully. Appropriate forms have been prepared for the various proceedings under the Act. And in an Appendix will be found a list of Division Court officers, corrected to date; a reprint of all the decisions in the Ontario Courts affect- ing the law of Division Courts, or the duties of officers, since the publication of the " Manual " of the author in 18 r 9, and the Rules and Tariff of Fees promulgated by the Judges in November, 1879. A suggestion to insert an interest table for the use of clerks and bailiffs, and some blank leaves at the end of the volume, for manu- script notes, has been adopted. The Editor desires here to express his thanks to several learned County Court Judges who have so kindly revised his proof-sheets, and thereby added largely to any merit which the volume may possess. TABLE OF COKTENTS. PAoa The Division Courts Act of 1880 1 New Jurisdiction 1 Appeals in such cases 39 Inspector of Division Courts and his duties 60 Clerks and Bailiffs 55 Appointment and dismissal 65 Other matters 56 Holdings of Courts 60 Juries 60 Appeals under Master and Servant Act 66 Miscellaneous provisions 75 Rules of November, 1879 103 New Tariff of Fees 106 Interest Table 113 Table of Division Court Officers 116 Table op Forms 130 Index 131 B RECEIPT DECISIOI^S EEPRINTED FKOM THE ONTARIO REPORTS. JURISDICTION. o. . _ , PAGE Stephens v. Laplante, ^ Prac. Rep. 5C o- King V. Farrell, 8 Prac. Rep. 119 "..!!....'.!."" 87 Hagel V. Dalrymple, 8 Prnc. ! op. 188 88 Holland v. Wallace 8 Prac. liep. 186 89 EXECUTION. Hincks v. Sowerby, 4 App. Rep. 113 gj BAILIFF. V Nerlich et al. v. Mallory et al. 4 App. Rep. 430 qq THE DIVISION COURTS ACT. 42 Vict., Chapter 8. An Act to extend the jurisdiction, and to regidate the offices of Division Courts. [Assented to March 5, 1880.] TTER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : I. This Act may be cited as " The Division short title. Courts Act, 1880." NEW JUKISDICTION. (a) ft. The jurisdiction of the Division Courts is jurisdiction ex- hereby extended by adding to the fifty-fourth (a) This heading might more ac- curately be referred to as an intioase of jurisdiction rather than a new jurisdiction. It is not here the place to discuss the propriety or otherwise of this step on the part of the Legislature. It may, however, be stated that a majority of the County Judges did not favour the increase, and many thoughtful men conversant with the subject think that this extended jurisdiction, combined with the right of appeal hereafter given, will tend to mar the symmetry of Courts, which have answered well for the purpose originally intended, 4$ BlRUOW«t Ot «.4'0- It 0.\i 12 NEW JURISDICTION. [Sec. 2. New section. section of the Division Courts Act, Revised Statutes of Ontario, chapter forty-seven, the following sub-section after the word " dollars " in the second sub-section of the said fifty- fourth section (6) : (3) " All claims for the recovery of a debt or money demand, the amount or balance of which does not exceed two hundred dollars (c), and the viz. ; -Courts for the collection of small debts by a simple and inexpen- sive process, not requiring the aid of skilled assistance, where disputes were to be finally disposed of accord- ing to equity and good conscience. This increase will not be felt as much at first a& it will in the course of a year or so, as it is thought the tendency on the part of merchants will be as far as possible to obtain signed acknowledgments of debt from their debtors so as to bring their claims within the Division Courts' jurisdiction. (h) This section will now be as fol- lows : " Sec. 54— The Judge of every Di- vision Court may hold plea of and may hear and determine, in a sum- mary way, for or against persons, bodies corporate, or otherwise ; "1. All personal actions where the amount claimed does not exceed sixty dollars; and " 2. All claims and demands of debt, account or breach of contract, or covenant, or money demand, whether payable in money or otherwise, where the amount or balance claimed does not exceed one hundred dollars ; " 3. All claims for the recovery of a debt or money demand, the amount or balance of which does not exceed two hundred dollars, and the amount or original amount of the claim is as- certained by the signature of the de- fendant or of the person whom, as ex- ecutor or administrator, the defend- ant represents ; " And except in cases in which a jury is legally demanded by a party, as hereinafter jjrovided, the Judge shall be sole Judge in all actions brought in such Division Courts, and shall determine all questions of law and fact in relation thereto, and he may make such orders, judgments or decrees thereupon as appear to him just and agreeable to equity and good conscience, and every such order, judgment and decree shall be final and conclusive between the parties.'' (c) The jurisdiction under this pro- vision is confined to claims for " a debt or money demand. " The increaspi of jurisdiction is given when the amount of the claim, or the original amount of the claim (if a balance is sued for) is ascertained by the signa- ture of the defendant. The words used in sub-section 2. (see note (b) to section 2, ante,) where the jurisdiction only extends Seo. 2.] NEW JURISDICTION. 18 amount,^ or original amount of the claim is as- certained by the signature of the defendant (d) to one hundred dollars, are "all claims and demands of debt, account or breach of contract or covenant or money demand." It will, therefore, be seen that this new provision giving jurisdiction up to $200 cannot be in- voked except in the same class of cases as are covered by section 79 of the Division Courts Act, under which judgment by default upon a specially endorsed summons might be entered. The words are the same in both these sections. A discussion as to the meaning of the words "debt or money demand " will be found in note (s) to the section referred to. (see O'Brien's D. C. Manual, p. 75.) The words 'money demand " are there shortly defined as including all claims which are not founded on damages for wrongs done ; and, therefore, all such claims, if the amount sued for, or the amount of the debt, a balance of which is sued for, is ascertained by the defendant's signature, can be col- lected, if not in excess of S200. It will be remembered that by section 59 no action can be brought on any unsettled account, even for §100, where such account exceeded in the whole $400. But by the operation of this enlargement of the jurisdic- tion, an action may be brought on an account up to §200, no matter how large the original claim, provid- ed only such original cUdm is ascer- tained by the signature of the de- fendant. Attention was called by the MTiLer in his Manual, p. 75, to the fact that the words of section 79 do not say that the amount must be liquidated, which is the requirement in a similar clause in the Common Law Pro- cedure Act. It is an error therefore to suppose, as some apparently have, that the cases decided under the last named Act are applicable. There is no reason, for example, why an unset- tled ba'auce between partners, or an unliquidated claim, if not too large, could not be proceeded on under sec- tion 79, nor even under this new sub- section if the original amount were as- certained by the signature of the defendant, and the claim sued on was for a balance. The extent of the jurisdiction of Division Courts, as it now stands, may be shortly summarized in general terms as follows, subject of course to the limitations in section 53 of the Division Courts Act. 1. Actions of tort or replevin up to $60. 2. All actions of debt, account, breach of contract, covenant, or money demand up to $100. 3. Actions of debt or money de- mand up to $200, when the amount sued for, or the original amount, a balance of which is sued for, is ascer- tained by the defendant's signature, or by the signature of the person whom the defendant, as executor or administrator, represents. ('/) The words " ascertained by the signature of the defendant, &c. ," would refer, for example, to a prom- issory note, bill of exchange, mort- gage, money bond, agreement, lease 14 NEW JURISDICTION. [Sec. 2. letter, memorandmn, I. O. U., settle- ment of accounts, &c., signed by the debtor. If any part of the claim sued for is not ascertained by the signature of defendant, there would be no juris- diction u^der this section. In this view the case of Elliott v. Ofay was recenliy decided by Mackenzie, Co. J. {not reported). This was an action brought in the County Court of the County of York, on a note for $95, and an unsettled account for $9. Verdict for full amount. Upon an application for a certificate for full costs, the question arose whether the action could not have been brought in a Division Court. The learned judge very properly held that the section did not give a Division Court jurisdiction under such circumstan- ces. After referring to the wording of the County Courts Act, he said : — " I find no decision so far pronounced in respect of the new Division Courts Act . It will be seen that the language of the Division Courts Act differs from the language of the County Courts Act. The word * balance' is nol used in the County Courts Act. The word 'liquidated' used in the County Court Act is not used in the Division Courts Act. The word ' claim' as used, I understand, means the demand such as one man has against another for money, goods, notes, &c., and the word ' balance' in accounts signifies the difference of two sums, as upon an adjustment of accounts a balance may be found against A. in favour of B. Hence to pay a balance is to pay the difference. The extending Act confines the juris- diction of the Division Court to ' all claims for the recovery of a debt or money demand the amountor balance of which does not exceed $200, and the amount or the original amount of the claim is ascertained by the sig- nature of the defendant.' Now the claim in the present case at the com- mencement of the suit was made up of a promissory note for $95, and an open unsettled accouut for $9, that is making the amount of the claim $104. The statute is imperative ; the amount of the claim must be ascertained by the signature of the defendant, and in the present case a part of it only is ascertained — a part within the old jurisdiction is ascertained by the sig- nature of the defendant. It appears to me that, under the statute, the whole amount of the claim must be ascertained by the signature of the defendant to bring it within the Division Court jurisdiction. The words used in the extending Act, ' The amount, or the original amount, of the claim, as ascertained by the sig- nature of the party,' are significant. The word ' original' must mean the original claim upon which pay- ments are made and credits given, leaving a balance. The amount of the balance is the claim. The amount of the present claim has not been as- certained by the signature of the de- fendant—only a part of it. If it was intended to be otherwise surely Par- liament would have said so. But what it has said is, ' that the amount of the claim or the original amount of the claim must be ascertained by the signature 'oi the defendant.' That has not been the case here. In this Court, until otherwise directed by superior authority, the rule will be that where there is a claim for an amount ascertained by the signa- Sec. 2.] NEW JURISDICTION. ture of the defendant, and for an amount, uuch as an open unsettled account, not ascertained by the signa- ture of the party, and both amounts put the claim over $100, the plaintiff will be entitled to a certificate for full costs. When the claim is over 9100 it must be ascertained by signa- ture to bring it within the new Divi- sion Courts Act operation. I think the certificate for costs should go." This principle, that the whole amount of the claim must be ascer- tained by the signature of the defen- dant to bring it within this section, being established, other points arise for discussion, much more difficult of solution than that in the case just cited. For example let us sup- pose a claim for the amount of a pro- missory note exceeding $100, and for notarial charges thereon. Could such a claim be sued in a Division - Court under this section. The notar- ial charges although only a very small part of the whole amount are not, in the case supposed, which is a very common one, ascertained by the signature of the defendant. Such charges are only recoverable as dam- ages, and were it not for the enact- ment in Rev. Stat. O. cap.50, sec. 144, a special count would be necessary to cover them in a declaration in a Superior or County Court. A form of such count is given in BuUen & Leake's Free, on this supposition. This ascertaining of the amount by the signature of the defendant con- fines the plaintiff to the recovery of the amount so evidenced. Should he seek anything beyond this, as for breach of contract, or damages for non payment of the amount so ascer- tained, he would, if this view be cor- rect, be obliged to resort to another tribunal. This may be perhaps a technical way of looking at the sub- ject, and many of the County Judges do not adopt it, thinking that dam- ages which flow as a consequence from the non-payment of au ascer- tained amount, such as interest or notarial charges, are to be considered as part and parcel of the original as- certained claim, and moreover that the Legislature could not reasonably have intended to restrict the opera- tion of the enactment in this way. It is submitted however that nothing will be intended in favour of the jurisdiction of an inferior court. The intent of a statute must be gathered from the law as it stood in its previous exactittide, and from the words used by the Legislature in the Act, and not from what might be sup- posed to have been the aim of indi- vidual members of such Legislature. The signature of a person is of course generally found at the foot of a document, but it is laid down as law that " if a man writes his name in the first person, as 'I, J. C. agree etc., or intlie third person, as, Mr. S. agrees,' this is a sufficient signature. But the mere insertion of the name of the contracting party in the body of a written contract is not of itself a sufficient signature. For, though the signature need not be placed in any particular part of the instrument, yet it must be so introduced as to govern or authenticate every material and operative part of it. Therefore where the defendant Moore wrote in- structions for a lease to the plaintiff in these words, 'The lease renewed ; Mrs. Stokes to pay the King's tax, also to pay Moore £24 a year, half ■^0'mmtmmtmmmtnm 16 NEW JURISDICTION. [Sec. 2. yearly. Mrs. Stokes to keep the house in good and tenantable repair,' etc. , it was held that Moore by writ* ing his own name in the body of the instructions had not signed an agree- ment for the renewal of the lease within the intent and meaning uf the Statute of Frauds. If the agreement concludes 'as witness our hands,' or contains any words showing that the names of the contracting parties were to be subscribed, there is no signing within the statute, unless the names of the parties are duly subscribed at the foot of the instru- ment. The civil law did not require the signature of a party to a written contract if the contract was in his own handwriting. But in our own law, if the defendant has written the whole of his contract with his own hand, without signingitas a concluded agreement, this is not sufficient, as the statute has made signing absolutely necessary for the completion of the contract. A party maj' iinder cer- tain circumstances be bound by his signature, a/lthough he subscribed in form as a witness. What within the legal intent of the statute will amount to a signing, is the same question in equity as at law. Where an offer was accepted by the defendant by tele- gram and the instructions for the mes- sage were signed by the defendant, and the telegram received by the plaintiff contained the message with the names of the sender and receiver written by the telegraph clerk on the usual printed form, it was held that there was a sufficient signature within the statute. If a man write his name in the vendor's order book, in- tending it as an order or authority to the vendor to send him certain goods specified therein, with the prices, this is a sufficient signatnrc ; so if he writes his name against the entry or memorandum in a book or ledger, or indorses his name on print- . ed particulars of sala, printed hand- bills or printed descriptions specifying the goods and the price, with intent to denote that he has purchased the contents, this is a sufficient signature, and the name may be written in pen- cil as well as in ink. A man may sign also by his initials or by hia mark, or by a stamp, and it is quite immaterial upon what part of the paper the mark or siernature is to be found. But the signature must of course be made Mrith a view of authenticating the document as a concluded contract, and not with a view merely of altering or settling a draft or approving of propositions and proposals not finally armnged xnd decided upon. A written admis- jion by a purchaser to his agent that he had bought certain goods for time, is a sufficient note or memorandum of the bargain between him and the vendor." — {Addison on Contracts, 159). Difficulties sometimes arise as to the execution of documents by illit- erate persons. It is usual and pro* per in such a case that the paper should be read over to the marksman and then witnessed by some person who can write his name. But it has been held that the mere omission so to read it does not invalidate the deed (Doe d, Biggard v. Millard, E. T,. -■• Y • ' But the evidence of ex- }•::;'• >-;aId fail if the witness vfiic '■ . . ;;i.r *hat the document had nof, ' i rsad correctly {Haiton v. Fish, oQ.B. 177). It has been laid Sec. 2.] NEW JURISDICTION. 17 or of the person whom, as executor or admin- istrator, the defendant represents (e) ;" down that it would be no execution if an illiterate person were induced to make his mark without the docu- ment being read to him, although he requested that it might be {Owens V. Thwnaa, 6 C. P. 383). The signature of the party sought to be charged with liability under the words of this section, would be suffi- cient if made by some one having ex- press or implied authority to sign his name. It has been laid down that, " where the note or memoran- dum is signed by an agent it is not necessary that the agent should obtain his authority by any written instrument. " It has been held, consequently, under the Statute of Frauds, that the name of the party sought to be charged, printed by a printer in par- ticulars of sale, or in any other printed paper embodying the terms of the contract, may be a signature by a person lawfully authorized. If the party has recognised and adopted his printed name or signature— if , fov instance, he has sanctioned or per- mitted, the distribution of printed handbills or printed particulars of sale in which his name appears, there has been a signature by an agent duly authorized, upon the principle that the subsequent sanction or adop- tion of the printed name or signature is equivalent to an antecedent author- ity to the printer to print it. If an agent has signed a contract without authority, and the principal subse- quently adopts the contract or rati- B fies the transaction, he' is bound by the agent's signature. But the mere introduction of a name into a writ- ten or printed paper unrecognised by the party, and not brought home to him as having been written or print- ed by his authority, is of course no signature within the meaning of the statute. A mere clerk or traveller of one party cannot be treated as an agent to bind the other unless it be shown that he has received specific and express authority so to do. " One of two or more partners may bind the others by signing the cus- tomary trading name of the firm to contracts for the purchase and sale of articles usually dealt in by the firm in the course of its business. "An auctioneer effecting a sale by auction, or an auctioneer's clerk tak- ing down the biddings in the pres- ence of the purchaser, is, during the continuance of the sale, but no long- er, the anthorized agent of the ven- dor and purchaser, and is enabled to sign for both or either of the parties, so as to satisfy the Statute of Frauds, And so is a broker, who is employed to sell goods and who signs and de livers bought and sold notes. Neither of the contracting parties themselves can be the agent of the other for such a purpose. The agent contemplated by the Legislature, who is to bind a defendant by his signature, must be some third person."— (Addison on Contracts, 160). (c) That is, in case of the death of the debtor, where an action is 18 APPEALS. [Seo. 3. I R. 8. 0. c. 47, S8. 54 and 66 amended. 2. There shall be an appeal when the sum in dispute on such appeal — exclusive of costs — exceeds one hundred dollars, subject to the pro- visions of this Act (/). 3. The word " forty, " where it occurs in the first sub-section of the said fifty-fourth section, and in the fifty-sixth section of the said Divi- sion Courts Act, is hereby repealed, and the word " sixty " is substituted therefor {g). brought against his executor or ad- ministrator, and the evidence of the debt is the signature of the deceased. (/) By sec. 6 there will be no appeal if before trial the parties agree not to appeal. Sections 17 &c., provide for the mode of conducting these ap- peals. The words " the sum in dispute on such appeal " are singularly obscure. Does the expression mean the amount of the claim as stated by the plain- tiff, or the amount of the judgment appealed from, or the difference be- tween the plaintiff 's claim and such amount, if any, as the defendant may admit a liability for, or for which judgment may be entered. It is clear that what is meant is not a case where the claim exceeds 8100, for that may not be " the sum in dis- pute on such appeal." The words " exclusive of costs" moreover show that the amount in the mind of the Legislature was an amount arrived at after the costs had been awarded. In the opinion of the writer the sec- tion means that there may be an ap- peal when the amount objected to by the dissatisfied party, after the hear- ing, exceeds $100, exclusive of costs. Suppose, for example, a claim on a note for $150 and judgment for plain- tiff for $101 and costs. In this case, if a new trial were refused, the de- fendant would have a right of appeal, but the plaintiff would not. But if the judgment were for the plaintiff for $49 only, he would have a right of appeal, but the defendant would not. In County Courts there is no such limit, and the appeal may be on any amount. The curious result is thus obtained that the increased jurisdic- tion of the Division Courts, combined with the limitation in this sub-section, deprives parties of the right to appeal in cases where such right before ex- isted. Again, it will be noticed that the right of appeal is confined to the in- creased jurisdiction given by this Act in matters of debt or contract. There is no appeal in actions of tort or re- plevin ; and these are cases where, as a general rule, appeals would be more beneficial, and in such cases there are generally more difficult points of law involved. {g) Hiese sections referrespectivel Sec. 6.] ABSCONDING DEBTORS. 19 4. In the class of cases provided for by the ^^J^^^J.^'^^^ second section of this Act, the increased juris- diction conferred by the said second section shall apply to claims and proceedings againstabscond- ingdebtors under section 1 90 (^), and subsequent sections ot* the Division Courts Act ; and in such cases the attachment may issue :>n(*. pro- ceedings may be had on a claim of not less than four dollars, and not more than two hun- dred dollars. 5. The clerk shall place all suits in which order in which ^ suits to be tried. the sum sought to be recovered exceeds one hundred dollars, at the foot of the trial list, and the other suits on the list and business of the court shall be disposed of before enter- , ing upon the trial of any of such firsjt men- tioned suits (i), unless the judge shall, for spe- cial reason or reasons, otherwise order. The Evidence to be taken down. judge shall, in such cases, when no agreement not to appeal has been signed and filed, take . ' to actions of tort and actions of re- plevin. In the former case the juris- diction now extends to actions where the amount claimed does not exceed 360, and in the latter to actions where the value of the goods taken does not exceed that sum. (h) The words used in the section referred to are " for any debt or da- mages arising upon any contract ex- pressed or implied." Proceedings can now be taken against absconding debtors up to $200 where the claim is a debt or money demand and the amount is ascertained by the signa- ture of the defendant as herein pro- vided. (i) This provision is doubtless in- tended to remedy as far as possible the difficulty that was suggested as to this increased jurisdiction keeping a large number of suitors and wit- nesses in suits for smaller amounts remaining in Court during the trial of the heavier cases. r*^ ' I I'l ; 1 ! I APPEALS. [See. 6. Parties may agree not to appeal. down the evidence in writing (J) and shall leave the same with the clerk of the court ; but in the event of application for a new trial it shall be forwarded to the judge by the clerk for the purposes of such application (k). 6. No appeal shall lie to the Court of Appeal if before the court opens, or if without the in- tervention of the judge before the commence- ment of the trial, there shall be filed with the clerk, in any case, an agreement in writing (I) not to appeal, signed by. both parties, or their attorneys or agents (m), and the judge shall note in his minutes whether such agreement was so filed or not, and the minutes shall be conclusive evidence upon that point. (;') This provision 18 manifestly ne- cessary so as to enable the appellate judge to have before him as nearly as may be the evidence as it was before the County Judge. It will necessarily lengthen the sittings and will in most Courts be a serious tax upon the judge who will thus be compelled, together with other interested parties, to en- dure the pestilential atmosphere of Courts which are as a rule even more ill-ventilated and impure than the majority of Court Houses. Judges will doubtless feel it their duty under this section, although not so expressly required, to take notes of any motion, or of any questions of law arising on the trial, which would be of impor- tance in case of an appeal, as well as a note of the charge to the jury, should one be impanelled. [k) See section 20. (1) This agreement need not be in any specified form. If attorneys are engaged (and it is presumed that iu most cases under this increased juris- diction they will be) a suitable form would at once occur to them ; if not, it need only be said that it should set out the name of the court, the style of the cause, and then state shortly that the parties thereby agreed not to exercise their right of appeal, but that the decision of the presiding judge should be final. This memorandum might, if the parties should so desire, be made ap- plicable to the contingency of a new trial ; but parties would not in gene- ral care about tying their hands to that extent. (m) See note (v) to section 8, sub- sec. 5, post. Sec. 8.] SECURITY BY OFFICERS. 21 T. The judge shall require such additional f,®"',Jg2^Jy security to be given by the clerks and bailiffs *»"'*'»• of the Division Courts within his county as 4 shall, in his opinion, afford sufficient security to any and all persons being parties in any legal proceedings in the said court, having re- gard to the increased jurisdiction by this Act H DISPUTING JURISDICTION. [Sec. 12. IS Rndoniin^ upon ■ummona. i i in the court holden for the division in which the cause of action arose, or in which the de- fendant or any one of several defendants re- sided' or carried on business at the tirae the action was brought, 13. There shall be endorsed upon every summons a notice informing the defendant that in any case in which an order may be made changing the place of trial, application must be made to the judge within eight days after the day of service thereof (where the service is required to be ten days before the return), or within twelve days after the day of such service (where the service is required to be fifteen days or more before the return) Notice where 14. In all cases whcre a defendant, primary jurisdiction of _ , . Court disputed debtor or garnishee intends to contest the jur- In g^amisheo ° *' cases (»). isdiction of any Division Court to hear or de- termine any cause, matter or thing in such court, he shall leave with the clerk of the court, within eight days after the day of service of the summons on him (where the service is {k) As to the order for changing the place of trial, see section 8 and notes. The notice here referred to should be on every summons, whether spe- cial or ordinary, The reference as to the change of place of trial is evident- ly to section 8, which refers to cases which would ordinarily be commenc- ed by special summons. But this is not necessarily so ; see also Bule 31. The form of notice would simply follow the wording of the section. (i) This marginal reference is mani- festly wrong, as the section is not confined to garnishee cases. !il|!' Sec. 14.] DISPUTED JURISDICTION. required to be ten days before the return), or within twelve days after the day of such ser- vice (where the service is required to be fifteen or twenty days before the return), a notice to the effect that he disputes the jurisdiction of the court (j), and such clerk shall forthwith give notice thereof to the plaintiff", primary creditor, or their attorney or agents in the same way as notice of defence is now given, and in default of such notice disputing the jurisdic- tion of such court, the same shall be considered as established and determined, and all proceed- ings may thereafter be taken as fully and ef- fectually as if the said suit or proceeding had been properly commenced, entered or taken in such court (/<;). {j) See note (e) to section 10. The form of notice might be to the following effect : — {Style of Court and Cause). "Take notice that I dispute the jurisdiction of this court, on the ground that ffiere state the ground). ISee Form P., p. 421 of O'Brien's D. (J. Manual.] Dated, &c. - — , Defendant, or , Defendant's attorney. To the above plaintiff, and ) to the clerk of said court. " ' The statute does not require the de- fendant to give the ground of objec- tion, but it would be very desirable that this should be done, so as to pre- rent the necessity of an adjournment, which might, under certain circum- stances, reasonably be asked for by the plaintiff, if no information on the subject were given. {k) A hasty glance at the words used in this section, might lead to the supposition that the mere omission to give the notice spoken of in this section would establish and determine the jurisdiction to the court to the ex- tent of the claim made, although that claim might be largely in excess of its jurisdiction; so that a judge might be compelled, by operation of this see- tion, and by reason of the defendant not giving a notice* disputing the ju- risdiction, to adjudicate upon a claim in a Division Court which otherwise could only be sued in one of the Su- perior Courts. fm •f :,li^- 111! :■!: M SUITS AGAINST OFFICERS. [Skc. 15. Place (if trial In HulU nffaliiHt ulerk or balliO. ItJ. Notwithstanding anything in the Divi- sion Courts Act contained, any clerk or bailiff of a Division Court may be sued in the court of an adjoining county, the place of sit- ting whereof is nearest (l) to the residence The writer submitH that Huch a view of the operation of this Bection is er- roneouR and will not bear the test of close examination. It ia a well ea- tabliHhed principle that an inferior Court can have no juriadictiou be- yond that expressly given it by sta- tute. We have seen, oreover (see O'Brien's D. C Manual, p. 39), that statutes which relate only to practice and procedure ' ' cannot be called in aid for the purpose of giving a jurisdiction which cannot be shown to exist independently " l^hre7}H v. McaUUyat, 23 C. P. 174). This section, it will be observed, ia one of several, beginning with section 9, and ending with section 15, affecting the locality where auits may be en- tered or tried, and the change of the place of trial from one to another. The only question in these sections, BO far as jurisdiction is concerned, is as to the local forum of jurisdiction ; there ia nothing aaid as to the amount of jurisdiction. This had already been defimitely set forth in previous enact- ments. This section does not refer to the question of amount at all, and there is only, M anything, an impli- cation to covniter^'nil a precise, ex- press and exac*. deJinition of the gen- eral jurisdiction .»f these courts. It is much more reasonable to conclude that this aection 14 refers only, as do those by which it is immediately surrounded, to the question of lo- cality. It ia also thought that the word- ing the section when examined, leads to the aame conclusion. It speaks of a defendant, &o. , contesting " the jurisdiction of any Division Court to hear or determine any cause, matter, or thing, in such court," and again, in the last sentence, the word» imply that the intention was to cure, not a defective jurisdiction as to the amount of the claim, but an im- proper commencement or entry of the suit, or proceeding talten "in »uch court." Again, even if there were any weight in the view that the mere omission to give the notice would give jurisdiction to any sum the plain- tiff chose to claim, it would only amount to a jurisdiction by eonsent ; but we find that this is already pro- vided for by the express enactment of section 10, which requires the active consent of all parties to the suit. It surely was not necessary by a side- wind to do that which had already been expressly provided for. (t) That is, nearest *' as the crow flies," which is the interpretation giver in several of the cases. No other mode of measurement would be certain or exact. This question was discuased in a recent case not yet re- ported (In re Mcintosh) on a proceed- 'KC. IR.] SUITS AGAINST OFFICERS. 87 (m) of the defendant witliout the county in which he holds his office as such clerk or bailiff (n). And upon a transcript (jf any judgment which may be recovered against any clerk or bailiff in any such suit being sent to and received bythcrlerk of the court of any division adjoining the division for which the defendant was or is clerk or bailiff in the county in which the last named division is situate with a certificate of the amount due on such judgment as provided by the one hundred and sixty-first section of the Division Courts Act, such proceedings for enforcing and collecting the judgment by way of execution and otherwise may be had and taken in the Division Court to which such transcript has been so sent by the officers there- of as may be had or taken for the like purpose upon a judgment regularly i-ecovered in any Division Court (o). ing by prohibition from a Division Court in Elgin. The defendant's re- sidence was nearer as the crow flies to the place where the court was held than it was to the place in the divi- sion to which the defendant should have been summoned, although the distance by the road was greater. The county judge had taken evi- dence of this fact. The judge in chambers, on application for pro- hibition under these circumstances, held himself precluded from inter- fering, (m) As to the meaning of the word " residence " see O'Brien's D.C. Man- url, p. 61. (n) This gives additional privilege to the plaintiff. Under section 65 of the old Act, the officer might be sued, at the option of the plaintiff, in the court of his own division, or in the court of any next adjoining division in the same county. It was thought proper by the Legislature to allow the plaintiff the right of having the case tried before the judge of another county as well. (o) This provision is necessary to enable an execution to issue and be ! " : ;;'!! \iv COUNSEL FEES. [Sec. 16. Coita. 16. Where in a contested case (p) for more than a hundred dollars, a counsel or an attor- ney or agent (q) has been employed by the enforced by some officer of the county in which the defendant resides, the jurisdiction of bailiffs not extending beyond their own counties, except under section 62 of the Div. Courts Act. {p) In the taxation of costs in the Superior Courts, the test whether or not the unsuccessful party is liable to payment of a counsel fee, is not, whethrr the case has been actually contested in court, but whether it has been entered for trial, and the cr-imsel has presumably spent time in preparing for it; And this is quite reasonable for the time occupied dur- ing the progress of the case before the judge represents generally a very small portion of the time actually lost by counsel by reason of holding the brief. And so if a suitor pays a fee to a lawyer in a Division Court case in which a notice of defence had been filed, there should be no reduc- tion (except as a matter of grace) eimpi^ because the case is settled in court, or ia then abandoned either as to the claim or defence, or requires proof of a formal kind only. If the plaintiff is notified by the defendant that the latter intends to defend the action, it would be qiute proper for the former immediately thereupon to engage the services of counsel, and it would be unreason- able that he should be a loser if the defendant should subsequently with- draw from a contest which he had initiated, and the same argument holds good in the converse case. It is thought, therefore, that the words " contested case " mean a case wherein the defendant has not only formally announced his intention of contesting the claim by the ordinary notice, but a case where the parties have evidenced such intention by con- duct or proceedings sufficient to con- vince the judge that a contest between the parties has actually existed, al- though it may not have culminated in an actual trial before him. There must be some latitude al- lowed to the judge, and it would be impossible to detail all the circum- stances under v^hich he would be jus- tified under a reasonable interpreta- tion of this section in exercising his discretion in the allowance of the fee. It is somewhat remarkable, and an instance of not very thoughtful legis- lation, that this provision is not ap- plicable to actions of tort and reple- vin, the jurisdiction in which does not extend to $100, but which, in general, involve more difficult ques- tions of law, and are of a more com- plicated nature than matters of debt or account ascertained by the signa- ture of the defendaiit. (q) The interpretation which should be given to the word " agent " has already been discussed at some length in note {v) to sec. 8, subsec.5. That sec- tion did not refer to the conduct of a case in court, but most of the reasons there advanced have weight in connec- il -11! ■- Sec. 17.] APPEALS. 39 successful party in the conduct of the cause or defence, the judge may, in his discretion, direct a fee of five dollars, to be increased, according io the difficulty and importance of the case, to a sum not exceeding ten dollars, to be taxed to the successful party, and the same, when so allowed, shall be taxed by the clerk and added to the other costs. APPEALS IN SUCH CASES. 17. In case any party to a cause (r)^ Appeal. wherein the sum in dispute upon the appeal exceeds one hundred dollars exclusive of costs (s), is dissatisfied with the decision of the judge, upon an application for a new trial, he may appeal to the Court of Appeal (t), and, in tion with the words in the present sec- tion 16. It is true that an J/ person may appear at the trial as agent for a sui- tor, but it does not necessarily follow that the suitor is entitled to claim a fee for anp person who may conduct his case, unless such person be one of those referred to in the section before us. It is certainly thought that a judge would be exercising a reason- able and just discretion by refusing to allow a fee under this section, ex- cept to a bariister or the attorney for the suitor, or the legal agent of such attorney — possibly also to the man- aging clerk of the attorney. (r) The interpretation to be put on these words will he seen by reference to section 34 of thv. County Courts Act {post p. 42). The provision there referred to was the result of several changes in the law tending towards allowing the party bene- ficially interested to appeal from an adverse judgment. (See Harr. C. L. P. Act, p. 610, note*.) (s) See note {/) to section 2, sub- section 2, as to the meaniag of the words " the sum in dispute upon the appeal, exclusive of costs." (t) There can, therefore, be no ap- peal until an opportunity has been given to the judge to reverse his de- cision on a second trial, should he so desire ; but whatever his ruling may be on the application for a new trial, the unsuccessful party on such appli- cation has a right to appeal — not necessarily the party who was un- successful at the trial. If on a second 40 APPEALS. [Sbc. 17. ii ^1 r such case, the proceedings, in and about the appeal, and the giving and perfecting of the trial, the judgment is the same, and the unsuccessful suitor wishes to take the opinion of a higher court, he must again apply for a new trial ; and if this is granted a second time, he is as far off an appeal as ever, as he must then go to trial a third time, though this is an unlikely case. But sliould a new trial be refused, he can then proceed under this section. It is qmte possible that a new trial may be refused, on grounds which do not touch the merits of the case, or the point of law involved therein ; for example, the materials on which the application is based may be de- fective, or the application may be made too late. Can there be an ap- peal in such case, neither the merits nor the law being involved? The Act is silent on this subject, and the word- ing is apparently large enough to in- clude all cases. This is not the case in the higher courts. There can, for ex- ample, be no appeal from a County Court on a point of practice. The right is there limited to " points re- served, or points of law arising upon the pleadings, or respecting the re- ception or rejection of evidence, or in reference to the judge's charge to the jury, or on motions for nonsuit, or new trial, in arrest of judgment or judgment non obstante veredicto. (R. S. Ont. cap. 43, sec. 34) ; and an ap- peal will not be allowed where the decision turns wholly on the evi- dence and involves no points of law (see cases cited in Eob. & Jos. Dig. p. 848) ; and so it has been held, that the appellate court will not interfere where only costs are in- volved, or on a question of amend- ment, or as to the right to begin, or in any matter of simple discretion, &c. (lb. p. 849.) It was not, per- haps, intended that there should be appeals from decisions in Division Courts on questions which would not be appealable in County Courts or Superior Courts. But the section is so carelessly worded as to leave grave doubts on the subject. The latter part of it, which provides that "the proceedings in and about the ap- peal, &c., shall be the same as on an appeal from the County Court," do not help, as the question is not as to the proceedings. The words used are very compre- hensive, and include more than those used in the County Courts Act. We are, therefore, inclined to think that the words " dissatisfied with the de- cision of a judge " would be construed as referring to his decision on the merits of the case, and on the law involved, including the reception or rejection of evidence, and on such question as might have come up for adjudication on the application for the new trial, even although such question might have been as to the sufficiency of the materials then pro- duced, or as to whether there were delay on the part of the applicant, &c.; in fact, any matter which would legitimately weigh with the judge in forming his decision as to whether a new trial should or should not be granted. Section 21, which would seem at £111 ,1 ■i!j ; .| ^ Sec. 17.] APPEALS. 41 security, shall be the same as on an appeal first glance to throw some light on this subject, does not however do 80 ; it gives the Judge of appeal power " to give any judgment, and make any order which ought to have been made," but adds that he shall give such order or direction to the court below " as the law requires ; " one would rather have expected to have seen "as the justice of the 4^e requires." One sentence indi- cates that the judge of appeal should decide as to the merits of the whole case, whilst the other would seem to show that he is limited to the legal question involved. It may be, how- ever, that the words, "a» the law re- quires," do not refer to the lawoi the case, as distinguished from the equity of it, but that they are equivalent to such words as " according to the statutes in that behalf," or, to ex- press it otherwise, that the words " as the law reqxiires," refer to the nature of the adjudication required by sec- tion 54 of the Division Courts Act ; that is an adjudication based, not on strict law, but on equity and good conscience. (See note {v) thereto at p. 48 of O'Brien's D. C. Manual. And see also Public Schools Act, R. S.O.cap. 203, ss. 7, 13.) It is difficult to prophecy what view will be taken by the judges of the Court of Appeal as to the powers conferred on them by sections 17 and 21. But it is thought that un. der the words " to give any judgment, and make any order which ought to have been made," they will feel con- strained to put themselves, as it were, for the time being, in the position (so far as the record will enable them to do so) of the judge who tried the cause, and consider the whole case, so as to be able to give full and explicit directions for a complete adjudica- tion of the questions involved, not confining themselves to the particu- lar question upon which the applica- tion for the new trial hinged, nor to such merely legal point as might pre- sent itself, but go into the merits of the case, so as to be in a position to order that to be done, which should of right be done between the parties according to equity and good con- science. It will doubtless often hap- pen that the record is not sufficient tu enable this to be done satisfac- torily. In such case it would be neces- sary to apply for further information, or to order evidence to be taken on some particular point requiring elu- cidation. The words " dissatisfied with the decision of a judge " are not to be read in connection with the words " upon an application " so as to make the subject of appeal his ground for granting or refusing a new trial ; that is, that these latter words simply indicate the stage of the suit when an appeal may be had. It is not necessary to discuss at length the principles which govern judges of appellate courts in relation to cases coming before them, as they would be of no practical importance to those concerned in the adnainist;a- tion of justice in Division Courts. It may, however, be as well that suitors should understand that an appeal on any question which involves any con- flict of evidence is not likely to suc- ceed as against the opinion of th* u 42 See p. 39, note APPEALS. [Sec, 17. from the County Court (u), except where other- wise provided by this Act, and the terms " party to a cause " and" appellant " in this sec- tion and hereafter used, shall have the mean- ing attached thereto in and by section thirty- four of the County Courts' Act. ! i M / li ii judge who heard the viva voce testi- mony of the witnesses, unless the ap- pellant "can show irresistibly that the opinion of the judges on the question of fact was not only Mnrong, but entirely erroneous " (Gray v. Tumhull,!,. R. 2 Sc. App. 54). The courts lay great stress upon the greater knowledge a judge has of the truth or falsity of thetestimony from observing the character and de- meanour of the different witnesses* (u) The sections of the County Courts Act which are applicable are as follows : — 34. The terms " party to a cause" and "appellant" hereinafter used, shall include persons suing or being sued, in the name of others, though not mentioned in the record, and persons on whose behalf or for whose beneiit any suit is prosecuted or de- fended, as well as parties named in the record. (33 V. c. 7, s. 13. See 27 V. c. 14, s. 1.) 37. The appellant shall give or cause to be given to the opposite party security either (1.) By a bond, executed by two persons whether named as sureties or as parties interested or otherwise, in such sum as the judge of the court appealed from may direct, con- ditioned that the appellants shall Abide by the decision of the cause by the Court of Appeal, and pay all sums of money and costs, as well of the suit as of the appeal, awarded and taxed to the opposite party : orj^ (2.) By paying into the court ap- liealed from, in the manner provided by law, within the time herein limi- ted, for the perfecting of an appeal bond, the sum of four hundred dol- lars, or such other sum as the judge may direct. (C. S. U. C. c. 15, s.* 68; 27 V. c. 14, s. 1 ; 33 V. c. 7, s. 13 ; 39 V. c. 7, s. 6.) 38. In case of security being given by 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 are required to justify. (C. S. U. C. c 13, s. 68; 33 V. c. 7, s. 13.) 39. Such bond and affidavit of jus- tification, and an affidavit of the due execution of the bond shall be pro- duced to the judge, to be approved of by him, and upon being approved of, shall be filed in the office of the court appealed from, until the opinion of the Court of Appeal has been given, and shall then be de- livered to the successful party. (C. S. U. C. c. 15, 8. 68 ; 33 V. c 7, s. .13.) 40. In case security is given by de- posit of a sum of money in court, such sum shall remain in court as !.;! 8eo. 18.] ' APPEALS. 43 18. Any iudge of the County Court of the suy of Pro- county in which the cause was tried, on the application of the person proposing to appeal (w), his counsel, attorney or agent shall stay the proceedings in the cause (x) for a time not security for the payment of all sums of money and costs, as well of the suit as of the appeal, awarded and taxed to the opposite party. (39 V. c. 7, s. 6). (w) What is " any party to a cause," is defined by section 34 of the County Courts Act, (see ante p. 42). The first step in an appeal from one of the Superior Courts is a notice of appeal ; but there is no such re- quirement in appeals from County Covurts ; and by the last section the proceeding in and about appeals, &c. , shall be the same as on County Court appeals, except when otherwise pro- vided by this Act. But it will be noticed that section 19 which pro- vides for the appointment of an agent speaks of the service upon him of "the notice of appeal, and all other papers thereafter requiring service." There is certainly a notice spoken of in section 21, which however is not a notice of appeal, but a notice of set- ting down for argument, and besides this notice is at the end of the pro- ceedings, and not at the beginning, as the notice mentioned in section 19 would seem to be. It would there- fore be safe to give a notice of inten- tion to appeal. It certainly would be a convenient and proper priustice. It might be in the following form : (Style of Court and Caitae.J " Take notice that it is the inten- tion of the said plaintiff (orMefen- dant) to appeal from the judgment herein, on an application for a new trial, to the Court of Appeal, pursuant to section 17 of the Division Courts Act, 1880. To the Yours, etc. . above in person Dated, etc. or by his attorney, or his agent." (x) It is not said whether an affi- davit is necessary, but it would be more convenient to the judge, and he would probably require to be filed a short affidavit, showing the nature of the claim, the fact of judgment having been given adversely to the appel- loiat on an application for a new trial, the amount of the judgment, and the amount in dispute on the appeal, exclusive of costs, the desire and in- tention of the applicant to appeal, and any other facts which the cir- cumstances might require. The order would be ex parte, and in a proper case would go as a matter of course. It might be in the following form : — (Style of Court and Cause). " Upon reading the affidavit of {the appellant himself, or his attorney or agent), and upon hearing the (ap pellant or his attorney or a^ent), I do order that proceedings in this cause be stayed for ten days from the day of being the day of giving judgment on an application for a new ii: 44 /PPEALS. [Sec. 18. exceeding ten' days from the day of giving judgment on the application for a new trial, in order to afford tiie party time (y) to give the security required to enable him to appeal (z). trial herein, in order to afford the said time to give the security requir- ed to enable him to appeal. And I furth'ir order and direct that such security shall be a bond in the sum of $ or that the sum of $ be paid into Court." Dated, &c. A copy of this order must be serv- ed at once on the opposite party, or on the person named for that purpose in section 19. If no person has been named the notice may be left with the clerk of the court where the suit was tried (sec. 19). (w) The statute t-ves no directions at. ' the time within which this secu.cy mist be given, but the praociue relating thereto must be the same as on an appeal from the County Court (sec. 17). The proceedings, however, are in some resi)ects ne- cessarily different inasmuch as in County Court cases a formal judg- ment has to be entered up before exe- cution can be issued, whilst in Division Courts the judgment is contemporan- eous with the verdict or finding of the judge. In the County Court if the security be not perfected within the time limited, the successful party may sign judgment and issue execu- tion. It would be highly undesirable that there should be any unnecessary delay ; and therefore it is suggested that the proper rule would be that no bond should be allowed after the ten days given by the statute has ex- pired. It is not well to encourage or facilitate ai)pea1s. It is much more desirable that there should be a speedy end to litigation. The ten days give ample time to tht appellant to complete his appeal. (^) The security must be that pro- vided by section 37 of the County Courts Act [ante p. 32), that is, either by bond or by deposit of money. If the appellant desires to take the latter course he can pay $400 to the clerk of the court, or such other sum as the judge may direct, in which case he must get an order from the judge for that purpose on bring- ing before him such facts as would warrant a reduction of the amount. If he elect to give a bond, he must get a direction from the judge as to the amount to be named in it (sec. 37 of C. C. Act, ante p. 42, and see form of order (ante p. 43), and then prepare a bond to be executed by the appellant and by two persons who may not be interested as parties. This bond is usually executed by the appellant, as well as by his sure- ties, though this does not appear, from sections 37 and 38 of the Act referred to, to be strictly necessiry. It may be in the following form : " Know all men by these presents that we (naming all the obligort loith their place of residence and additions, the appellant being one of them) are jointly and severally held and firmly bound unto (naming the respondent Sbc. 19.] APPEALS. 45 19. Upon any application for a new trial in y,^|"* '*"' *'"• with his place of residence and addi- tion) in the penal sum of dol- lars; for which payment well and truly to be made we bind ourselves and each of us by himself, our and each of our heirs, executors, and ad- ministrators respectively by these presents. Dated this day of 18 . Whereas the said (appellant) is dis- satisfied with the decision of the Judge of the County Court of the County of on an application for a new trial in a certain cause in the Division Court of the County of wherein the (appellant »r respondent, as the case muy he) was plaintiff, and the said (appel- lant or respondent, as the case may be) was defendant, and desires to appeal from such decision to the Court of Appeal ; And whereas the sum in dispute on such appeal exceeds one hundred dollars, exclusive of costs ; Now the condition of this obliga- tion is such that if the said (appellant) do and shall abide by the decision of the said cause by the Court of Appeal or a judge thereof, and pay all sums of money and costs as well of the suit as of the appeal awarded and taxed to the opposite party, then this obligation to be void, otherwise to remain in full force. Signed, sealed and delivered i the presence I in I of J" Sec. 38 of the County Courts Act directs that the parties executing the bond shall justify by affidavit to the amount of the penalty of the bond in like manner as bail are required to justify. A form of such affidavit i» given in County Court Eule 84, and may be adapted to the present sec- tion, as follows : — (Style of Court and Cause.) of, &c., make oath "I, and say : 1. That I am one of the sureties for the above plaintiff (or de f endant) in this cause in the annexed bond mentioned. 2. That I am a householder (or freeholder, or as the case may 6e) resid- ing at (ffive particulars). 3. That I am worth property to the amount of dollars (the amount of the penalty of the bond) over and above what will pay all my just debts (\i hail or secunty in any otlier action add and every other sum for which I am now bail or security). 4. That I am not bail or security for any plaintiff or defendant except in this action (or if lie is, add, except for the sum of $ ). Sworn, &c. " There must also be an affidavit of execution, which may be as follows : (Style of Court and Cause). "I, , of &c., make oath and say : 1. That I was personally present and did see the annexed bond duly signed, sealed and delivered by the obligors therein named. 2. That I am a subscribing witness to the execution of the said bond by the said parties, and tliat the signa- I 46 APPEALS. :9ko. 19, A?ent(orier. ^ny causc whcrein either party may appeal (a) each party to the suit (6) shall leave with . the judge by whom the application is heard, a memorandum in writing of the name of some person resident within the county town of the county or united counties in which the cause was tried, with his place of abode (c), upon whom the notice of appeal (d) and all other papers thereafter requiring service, may be served upon him, and service upon such person, or, in K ture " " affixed thereto as a witneaa is in my proper hand-writing. Sworn, &c. " The respondent should have an opportunity of objecting to the suf- ficiency of the bond ; and to this end the appellant should serve a notice upon the opposite party that he will, on a day named, apply to the judge of the court at a certain hour and place for the approval of the bond, and in his notice state the names, re- sidences, and additions of the sure- ties. On the day named in the notice the appellant or bis attorney will apply to the judge to have the bond ap- proved. The opposite party can then take exception to the sufficiency of the bond, or to the sureties, setting out by affidavit any objection that may not be apparent on the face of the document. Should the bond be held to be suf- ficient, the judge will ndark it ap- proved, and it must then be filed in Court, until such time as the appel- lant might, if successful, apply to have it cancelled, or until the respon- dent might, if necessary, obtain it to sue upon. (a) That is in a case " wherein the sum in dispute ujwn the appeal ex- ceeds 9100,exclusive of costs" (sec.l7). (6) See note (r) to section 17. (c) This memorandum, is incon- veniently enough to be left "with the judge." It does not say what he is to do with it ; but he would pro- bably give it to the clerk, to be filed with the papers in the suit. It is not apparently intended that this "person" should necessarily be an attorney, though it would proba- bly be so in most instances, at least in places where they are to be found. {d) See note (w) to section 18. It is thought that the notice here referred to must be a notice of inten- tion to appeal, not the notice of set- ting down the appeal for argument referred to in section 21 ; for it will be observed that this section 19 goes on to speak of " all other papers thereafter requiring service." The notice spoken of in section 21 is one of the last requiring service in tha course of an appeal. Sec. 20.] APPEALS. 47 his absence, at his place of abode, shall be suffi- ) cient service thereof ; and, in the event of fail- ure to leave such memorandum by either par- ty, all papera requiring service upon him may be served upon the clerk of the Division Court where the suit was tried, or left at his office^ for the person so failing to leave such memo- randum, and such service shall be good service. The clerk shall, in such case, forthwith mail» by registered letter, all such papers so served upon him to the person entitled to the same (e). 90. Upon the bond being being approved ^'g*rtm*ed*'"' *** by the judge, or the deposit being paid into court, the clerk of the court in which the suit is pending, shall, at the request of the appel- lant, his counsel, attorney, or agent, furnish a ■duly certified copy of the summons with all notices endorsed thereon, the claim, and any notice or notices of defence, and of the evidence and all objections and exceptions thereto, and A' of all motions or orders made, granted or re- fused therein, together with such notes of the judge's charge as have been made, the judgment or decision when in writing, or the notes thereof, and all affidavits filed or used in the cause, together with all other papers filed in the cause affecting the questions raised by («) If the provisions of Rule 125 have been complied with, it will give clerks the proper address to which the registered letter, here spoken of, may be forwarded. 48 APPEALS. [Sec. 21. the appeal (/). The clerk shall also furnish to the respondent, when required so to do, a du- plicate copy of the proceedings so furnished to the appellant, or such portion thereof as may be required by him, and for every copy he shall be entitled to receive the sum of five cents per folio of one hundred words. ScttiiiK down appeal 8. 9t. The appellant shall within two weeks after the approval of the security or deposit being paid into court, or at such other time as the judge of the said County Court may order in that behalf provide, file the said certified copy with the registrar of the Court of Appeal, and shall thereupon forthwith set down the cause for argument before a judge of the said Court of Appeal, and shall forthwith give notice thereof and of the appeal, and of the grounds {/) The certificate would be a gen- eral one that all the papers thereto annexed were true copies, &c. It would not be necessary to certify each separately. This certificate should be signed by the clerk and have the seal of the court afHxed thereto. There will often be " diflBculty in practice in deciding what papers or information are to be covered by this provision. To obviate this, as far as possible, a time and place should be named for settling the case that is to go before the appellate court, so that the opposite party may have an op- portunity of being present. The certificate may be as follows : (Stffle of Court and Cause.) "I, , clerk of the above-named court, hereby certify that the papers hereunto annexed are true copies res- pectively of the summons in this cause with all notices endorsed there- on, &c., {following the words of the sec- tion, and in accordance with the facta), being all the papers filed in this cause affecting the questions raised by the appeal from the judgment herein. Given under my hand and the seal of the said court, this day of , A. D. 18 :" (Seal of Court.) Clerk. Sio. '21.] APPEALS. 49 thereof (flr) to the rospondont, his counsel, attor- ney or agent, at least seven days before the day for which the same is set down for hear- ing (fi), and the said appeal may be heard and Hearing, disposed of by a single judge of the Court of Appeal, and he shall have power to dismiss the appeal or give any judgment, and make any order which ought to have been made, and he shall give such order or direction to the court below i uching the decision or judgment to be given in the matter as the law requires (i), and cosu shall also award costs to the party in his dis- cretion, which costs shall be certified to and form part of the judgment of the court below, and upon receipt of such order, direction and certificate, the court below shall proceed in ac- cordance therewith (j). (g) The words " and of the appeal " are rather indefinite, and apparently unnecessary. The respondent has already had notice of the appeal. This notice of setting down may be in the following form : *' In the Court of Appeal. In the matter of an appeal from thtf Division Court of the County of in a cause in which is plaintiff and is defendant. Take notice that this cause has been set down for argument, to be heard on the day of next, before a judge of the Court of Appeal, on an appeal from the judgment given on an application for a new trial herein, for the day of next, and further take notice that, the D grounds of such appeal are as fol- lows : (Here set them out, separately if more than one.) Dated, &c. To the above respondent and — his attorney or agent. j or, 11 the above appellant or, — — his attorney." (h) " At least seven days," would mean seven clear day • thereof (w). {Style of Court and Cause). "I of the of in the County of , the above plaintiff {or attorney or the agent of the above xilaiutiff) make oath and Hay : 1. That I did on or about the day of 18 , obtain a judgment of this court (or obtain a judgmer t in the Division Court of wl: >.'h has been removed into this court by transcript) against the defendant for the sum of $ for debt (or dam- ages) and costs. 2. That the said judgment is still unsatisfied (or, unsatisfied to the amount of $ )." 3. That I believe the said defen- dant (or the defendant— sought to be examined herein) is able to pay the amount due in respect of the said judgment or some part thereof. (or, in place of this last clause, say) 3. That I believe the said defen- dant (or the defendant sought to be examined herein) has rendered himself liable to be committed to gaol under the Division Courts Act." Sworn, &c. Should the judgment be in favour of the defendant against the plaintiff on a set-off it would be necessary to alter the affidavit to meet such case. It would not be proper to state the latt two clauses in the alternative. There might be no objection to both being stated, should the facts warrant it, but there must be a definite state- ment of one or other before the statute is satisfied (see Quackenbush et al. v. Snider, 13 C. P. 201, referred to at length, at p. 180 of O'Brien's D. C. Manual). The last part of this section seems to refer to section 182 of the Division Courts Act, under which a d'ifendp.nt would be liable to be committed if he (1) obtained credit from the plaintiff, or incurred the debt or liability under false pretences or by means of fraud or breach of trust ; (2) Wilfully contracted the debt or liability without having bad at the time a reasonable expectation of being able to pay or discharge the same ; (3) Has made or caused to be made any gift, delivery or transfer of any property or has removed or concealed the same with intent to defraud his creditors or any of them ; or (4) Has had at some time since the judgment obtained against him (though he may not still be in that po:iition) sufficient means and ability to pay the same, and has refused or neglected to pay it at the time or- dered. (w) Under that section a judgment debtor was not liable to commitment for default in attending examination unless the judge were satisfied that his non-attendance was wilful or that he had failed to appear after being twice summoned. The Legislature has now very properly gone back to t\ 80 SUBSTITUTIONAL SERVrCE. [Sec. 61. i0)ia_/ic/e and reasonably incurs expenses, in procuring wit- nesses or in attending at court (d), the judge summons and claim herein together with this order by (here insert the di- rection as to »en:ice yiien by thejud'je) and that thi^ shall be sufficient as a Bervice on the said defendant, jnirsu- ant to section C2 of the Division Court Act, 1880. And the said plain- tiff may thereupon in due course proceed herein as if personal service bad been effected. Dated, &c. Judge, &c.'" The proceedings thus directed by the judge should then be carried out in strict accordance with the order, and an affidavit made thereof, which shoidd then be filed in the or- dinary manner. It must be I'emarked that under this section the necessity for issuing au attachment against a contea'ed or absconding debtor under section 190 of the Division Courts A •: s'trn} largely superseded, inasmuch a- Uat proceeding was heretofore the only mode to which the creditor could resort to effect substitutioual service, (a) See O'Brien's D. C. Manual, pp. 77, 270. \h) See O'Brien's D. C. Manual, p. 142. ((•) That is, under section 5G of this Act, or under rule 95. ((/) The party must, have incurred the expc nse in good faith, before re- ceiving notice of the confession or payment, and in the reasonable belief that these witnesses woidd be re- quired. The witnesses must have been necessary and material to estab- lish the plaintiff's casi; or to rebut the defence. That they were not called, Sec. 65.] GARNISHEE COSTS. 83 muy, in his discretion, order the defendant to pay such costs ot such portion thereof as to him niay seem just. 64. Section one hundred and sixty -three is see m •^ anieuded : amended by striking out the words "thirty j;^'^^JJ'^|j°* davs" where the same oecui's in the fourth line thereof, and by substituting therefor the words " six months" (c), 6«5. The iudfje in any case broug-ht to ffamish costs in Kam'- <^ ° '' ^ o o shcT cases. a debt, may, in giving judgment on behalf of the primary creditor, award the costs of the proceeding to the primary creditor out of the amount found due from the garnishee to the primary debtor, anything in the Division Courts Act to the contrary notwithstanding would be no reason against the al- lowar'ce of the fees. (>>ee note (p) to Kule i47 in O'Brien's D. C. Manual, p. 315.) The ^'eneral rule is that the clerk is to determine, subject to ajjpeal ta the judge, what number of witnesses should be allowed on taxation of costs. (See Rule 147, and section 88 of the Division Courts Act. See also sec- tion 154 of the Division Courts Act, and Form Q, in O'Brien's D. C. Manual, p, 422, which may easily be adapted to the object of this section.) (c) The writer pointed out, on page 153 of his Manual, some difficulties in reference to the procedure undev the section here referred to, but sug- gested that the true remedy was for the»bailiff to act promptly. It is, in fact, his direct interest to do so, for otherwise he might forfeit his fees. This provision does not give the bai- liff any longer time to act under the writ unless the creditor chooses to extend the time by exercising the right of renewal, which is entirely in his own power. The change seems beneficial. ( /) See section 133 ot that Ac:. This is a very proper provision .vnd would reasonably be enforced when- ever theiv is money enough due by the garnishee to the primary debtor to cover the "^osts which the primary creditor has been put to in the garni- shee proceedings. This acction api)arently applies only to cases which come before a judge for judgment ; so that in other :»;■ I'! SI 84 Board of County Judges to make rules. BOARD TO MAKE RULES. [Sec. 66. Pending pro- ceedings not af- fected. Act part of D. C. Act. 66. The Board of County Judges, or any three of them, may frame general rules and forms concerning the practice, and in relation to the provisions of thiis Act, in as ample a manner as they may now make and frame such rules and forms under the powers conferred by the Division Courts Act, but subject nevertheless to the like restrictions and conditioas, and to the approval, disallowance or amendment thereof by the judges of the Superior Courts of law, as in the case of rules and forms framed by them by virtue of the powers conferred by the said Division Courts Act. 67. This Act shall not affect any action or proceeding pending at the time of the passing thereof ((/). 68. This Act .shall be read with and as part of the Division Courts Act.and the general rules, forms, practice, procedure and fees applicable to Division Courts shall apply thereto, and to proceedings thereunder. ca«ie8 the law remains as it was be- fore this section was passed. (f/) An action is " pending " from the issuing of process until judgment has been pronounced ; and so it is con- sidered that when the latter event takes place the retainer of an attor- ney ceases. The word " proceeding" may be supposed to refer to some steps taken in the cause, subsequent to the hearing. It would seem, there- fore, that this Act would not apply to a proceeding before judgment in any action in which the summons was issued before the 5th March, 1880, when the Act was assented to, nor to any proceedings subsequent to judg- ment commenced before that date. If, for example, a judgment summons had been issued before the •5th March, no afhdavit would be necessary undet section 59, but if such a summons were issued after that date, it would be necessary, although the suit might have been commenced before th* passing of the Act. APPENDIX OF RECENT DECISIONS. JURISDICTION. Stephens v. Lai-laxte. Prohiliition. On an ai^plication for prohibiMoii to a Division Court, after judginent and execution, where the question ')f iurisdiction depends upon disputed facts, — as, in this c:ise, upon whether ; he person, by whom the bargain sued upon was made, acted as plaintiff s or defendant's agent ; if the Division Court Judge has decided this question on evidence, and found in favour of his jurisdiction, the Court will not interfere with his finding ; but here, there having been no such decision, and the want of jurisdiction being clear upon the affidavits filed, a prohibition was granted. [8 Prac. Rep. 52.] In November, 1873, the plaintijf, as assignee of the estate of McMichael & Hughaon, sued the defendant in the Fourth Division Court of the County of Kent fa- the price of certain goods. De- fendant filed a dispute note, and in the note took objection to the jurisdiction of the Division Court in wiiich the case was entered, claiming that the whole cause of action arose within the jurisdic- tion of the First Division Court of the County of Peterborough. Judgment was given in favour of the plaintiff, and an execution was issued against the defendant for the amount of the claim. Shepley, for defendant, obtained a summons for a prohibition t JURISDICTION. 89 rities were the defundaut's agents to deliver his letter to the plain- tiff at Toronto, and that the contract was by these means as fully completed at the latter place as if tlia defendant had come person- ally and given instructions. G. T. Blackduck supported the sinnmons, and claimed that the whole cause of action did not arise at Toronto, and that conse- quently the action should have been brought where the defendant resided. He cited Noxo)t. v. HvlmeH, 24 C. P., 541 ; and Watt v. Van Every, 23 U. C. R. 196. Hagarty, C. J., held, that to entitle the plaintiff to succeed in the suit he would have to prove the writing of the letter at Port Elgin, and the writing of it there became part of plaintiff's cause of action. The whole cause of action did not, therefore, arise in Toronto, but partly in each place. SiimmoHS made absolute, hut v:ith'mt costx. In Re Holland v. Wallace et al. Garnishee. A plaintiff in a Division Court, proceeding against a primary debtor and a garnishee in a Court which would not have jurisdiction against the primary debtor alone, must prove a garnishable debt in the hands of the garnishee ; otherwise, a prohibition will lie. A garnishee is not a defendant within the meaning of U. S. O. ch. 47, sec. 62. [8 Prac. Rep. 186.] On the 29th of August, 1879, a summons •was issued from the First Division Court of York, calling on the defendant Wallace, as the primary debtor, and on Hallam as garnishee, in the usual form, to appear at the Toronto Court House on the 30th September following. By affidavits indorsed, it ajtpeared that service was made on the garnishee on the 30th of August, and on Wallace on the 17th of September. The plaintiff lived in Toronto^ where Hallam the garnishee also rijsided. The defendant Wallace lived in Lindsay, where a note, the cause of action, was dated. The note was made payable at the plaintiff's office, in Toronto. Wallace, on ;• Il 1 1 l< 1 1 ' 1 1: ■ 90 JURISDICTION. being servetl, was advised by his attorney that the service was void, as he ought to have been served twenty days before the return day. He therefore took no notice of it. Defendant's affidavit stated that on the 3rd of January he w.vs casually iitformed by the clerk of the Lindsay Court that a transcript of a judgment a< the roads being blocked up with snow. Another part of the irfxhiao was on the premises of the plaintiff, and the bailiff went to i., anvl told the parties that he seized it. He did nothing further unril the 23rd of June, when he took it into his possession a few days before he advertised the sale. Ralph Hincks made no objection to the sale taking place, and asked his father to attend the sale for the purpose of purchasing the machine, which, however, lie did not do. One Salkeld bought the machine, and subsequc ! .tly sold it to the plaintiff. Ralph Hincks had urged the plaintiff to buy it, offering to give him certain parts of the machine which he had concealed from the bailiff. The machine, which had been injured, was repaired at the plaintiff's expense. It was shewn that Ralph had had the use of the machine afterwards, but it ap- peared that he had used it with the plaintiff 's permission. On the 18th June, 1877, Ralph Hincks made a chattel mortgage of the machine to the defendant. The learned County Court Judge Squier, before whom the case was tried, entered a verdict for the defendant. Subsequently a rule vid to set aside the verdict was discharged, on the ground that there had been an abandonment of the seizure. The plaintiff appealed. The case was argued on the 5th of March, 1879. EXECUTION. 93 F. Older (Oarrow with him) for the appellant. The evidence shews a valid seizure, and sale thereunder : Gladstone v. Padwick, L. R. 6 Ex. 203; Hayden v. Crawford, 3 O. S. 583 ; WaWm v. Jarvis, 14 U. C. R. 640 ; Hamilton v. Botiek, 5 O. S. 664. The question of abandonment is one of intention, and there was clearly no evi- dence of intention to abandon the goods in question here : Gould v. White, 4 O, S. 124. The presumption is in favour of the regularity of the bailiff's proceedings, and nothing was shewn here to rebut this presumptioii : Mitchell v. Greenwoo.% 3 C. P. 465 ; Buidton v. Ferguson, 5 U. C. R. 515. But in any event the evidence estab- lishes that Ralph Hincks waived the irregularities, if any : Hurley v. McManus, 1 U. C. R. 141 ; Tiffiny v. Miller, 6 U. C. R. 426. Moreover Ralph Hincks is estopped by his conduct in connection with th« sale to the plaintiff from disputing the plaintiff 's title or asserting any title in himself to the machine : Pickard v. Sears, 6 A. & E. 369 ; Gregg v. Wells, 10 A. & E. 90. C. Robinson, Q.C., for the respondent. The chattel in question was under the value of $60, and an article by which Ralph Hincks obtained his living and, therefore, was exempt from seizure : R. S. O. ch. 66, sec. 6 ; R. & J.'s Digest, 1417. The plaintiff must claim through a valid sale ; Clarke v. Garrat, 28 C. P. 75 ; the facts, however, did not prove a valid seizure or anything approachinfj a seizure till the 23rd of June, when the execution had expired ; Ctdloden v. McDowell, 17 CJ. C. R. 359 ; Carroll v. Lunn, 7 C. P. 510 ; Mclntyre v. Crysler, 4 C. P. 248 ; Atkinson on Sheriffs, 192, 193. If, however, it is held that there was sufficient to constitute a valid seizure then we submit that the evidence shews that it was abandoned : Craig v. Craig, 7 P. R. 209 ; R. & J.'s Digest 1436- 1455. Tf Ralph Hincks's conduct created any estoppel it is met by an estoppel on the part of the plaintiff, who allowed him to deal with the machine as his own ; but there was no estoppel proved : Lines V. Grange, 12 U. C. R, 209. March 22nd, 1879. Moss, C. J. A., delivered the judgment of the Court. We think that what was done by the bailiff was sufficient to con- stitute a seizure. In considering what acts must be done to amount M I" ■4 94 EXECUTION. i hlVti, I I ■'* ' ?*U:. ill; .^ItjS, ill :,(!': to an actual seizure, regard must be had to the circumstances. For example, in Nash v. Dickumon, L. R. 2 C. P. 252, it was held that the mere production of the warrant to t]ie defendant upon his pre- mises, and demand of the debt and costs without doing or saying anything more, was not a seizure. There it did not appear on what he could well have levied ; and he did not even profess to make a seizure. In Balls v. Thick, 9 Jur. 304, Lord Denman expressed the opinion that any act done by a person having authority which distinctly intimates to the party that he intends to execute the writ, is sufficient to constitute a seizure. That would seem to shew that much depends upon the nature of the chattels, their position and other surrounding circumstances. In the important case of Oladstoiie v. Padwick, L, R. 6 Ex. 202, it was said by Bramwell, B., to be clear that the sheriff need not lay his hand upon a single article. Here, part of the machine was in the premises of a person named Salkeld, and the bailiff marked that part with the word "seized." Another part was in the premises of the present plaintiff, with whom Ralph Hincks was then residing, and the bailiff went to it and told the parties that he seized it. The roads were blocked with snow, and it was impossible for him to re- move the machine at that time. He could not be expected to have slept in the open air himself and to have kept another man in order to watch and keep physical control over these parts of a machine, which was scarcely worth $15. In this connection, the remarks of Brayley, J. , in Swann v. The Earl of Falmouth, 8 B. «& C. 456, are very pertinent. There are authorities in our ©wn Courts to the same effect, but it is riot necessary to pursue that enquiry further for we collect from the ob- . seryations of the learned Judge of the County Court that in his. opinion there was a seizure, but that there was an abandonment. As that is generally a questi(m of fact, we would not readily dissent from the conclusion of the learned Judge. But it appears to us to be open to serious question. There certainly was no intention by the bailiff to abandon, and it is equally certain that the execution debtor did not suppose th&t there was an abandonment, for the EXECUTION. 95 bailiff was permitted to remove the machine without objection or remonstrance. The subsequent conduct of the execution debtor, to which we shall have occasion presently to direct attention, shews conclusively that he supposed the seizure to be continued. The case seems to closely resemble that which was present to the mind of Lord Den- man, when he suggested in Balls v. Thick, 9 Jur. 304, that there ought not to be an abandonment if the position of the parties ia not altered, and the defendant had full notice that it was to be con- sidered a seizure, and not claim the chattel. But even if Ralpli Hincks had the right to insist that there had been an abandonment, he seems to have waived it in the most distinct manner. He knew the sale was about to take place, and instead of objecting to it, he requested his father to attend and purchase. With this request his father did not comply, and accordingly Salkeld became the pur- chaser. It is no strained conjecture from what the evidence dis- closes of their previous and subsequent dealings, that this was done with the full privity of Ralph Hincks. Then the plaintiff is urged by Ralph to buy from Salkeld, and as an inducement, Ralph offers him certain parts of the machine which he concealed from the bailiff, confessedly with the object of rendering it useless and valueless. His father then consents, and the machine is bought. The object which Ralph had in view was no doubt that he might, through his father's bounty, enjoy the use of the machine, when it was repaired and fitted to work ; but it is clear that this was all the advantage he expected, for ho was then embarrassed, and had no idea of becoming the owner. The machine was repaired at the plaintiff's expense, Ralph not only being cognizant of tiiis, but assist- , ing in the work. After all this he could never be heard in a court of justice, to urge that Salkeld did not acquire a good title at the bailiff's sale, and transfer such a title to his father. If he still had any interest in the chattel, he constituted Salkeld his agent, to transfer it to the jilaintiff, and the transfer was completed bj' the delivery of possession. He was not simply estopped from denying his father's title, but he had empowered Salkeld to transfer to him an absolute title. The circumstance that he was afterwards per- il I tit: OG BAILIFF. mitted by his father to use the machine, and enjoy its full benefit, does not destroy that title, for there is nothing in the evidence upon which to ground an inference that this was in consequence of any gift of the machine itself. Upon these fiicts it requires no argument to establish that nothing passed to Sowerby by his chattel moriigage. We think, therefore, that the plaiutiif was entitled to succeed, and that the appeal must be allowed ; with costs, and the rule nid in the Court below made absolute to en'er a verdict for the plaintiff. We do not know what opinion the learned Judge formed with re- gard to the actual value of the machine at the time the defendant took it out of tlitj plaintiff's possession, but upon that will depend the plaintiff's right to recover his full costs of suit. Appeal allowed. i!' .; ■ I ■■) t ■! ■ I: i 'IT Hi BAI^TFF. 1 Neklich et al. v. Malloy et al. Action for false return' I'd an action against a Division Court Bailiff and his sureties for neglect to execute a writ or return it in due time, and for a false return, the defen- dants pleaded that the execution was not enforced owing to a threat by the principal creditors of the debtor to place him in insolvency if it was proceeded with, and that while the goods were being advertised for sale an attachment was issued against the debtor, and the plaintiffs suffered no damage in consequence of the breaches alleged. At the trial the jury were directed to find a verdict for the defendants, on the ground that this plea and another had been proved. Held, reversing the judgment of the County Court of York, that it was for the jury, and not ior the Judge, to say whether the bailiffs inaction had caused the plaintiffs damage, and a new trial was therefore ordered. Semble, also, that under section 221 of the Division Courts Act, B. S. 0. ch. 47, the plaintiffs were entitled to nominal damages upon proof of a breach of duty without shewing any actual damage. Before the commencement of this action the plaintiffs had taken summary proceedings against the bailiff for neglecting to levy under section 220, when their complaint was dismissed. Held, no bar to this action, which was brought under sec. 221. [4 App. Rep. 430.] BAILIFF. 97 Appeal from the County Court of the County of York. The appellants, who were plaintiffs in a Division Court suit, iu which an execution had been delivered to the defendant Malloy, as bailiff, declared against him and his sureties, alleging as breaches of the statutory bond neglect to execute the writ, neglect to re- turn the writ within three days after the return day, and a false re- turn of no goods. Several grounds of defence were set up by various pleas, of which it is only necessary to notice the third and the fourth . ' The third plea alleged that the defendant Malloy received the writ on the 13th May, 1876 ; and before the alleged grievance, and on the same day, levied upon the goods of said Henderson, and I jfore the same were removed and sold, and immediately after the seizure the said defendant was notified in writing by the attor- ney for one of the principal creditors of the said Henderson, that if Malloy proceeded with the sale of said goods immediate pro- ceedings would be taken to place Henderson in insolvency ; and afterwards, and b'jfore said goods were sold, and while they were being advertised pursuant to the statute, a writ of attachment duly issued against Henderson, who duly made an assignment of his estate under the provision? of the Insolvent Act of 1875, and the goods under seizure ^lecame the property of the assignee, and there- upon Malloy gave \'p the seizure and returned the writ according to law, and that the plaintiffs suffered no damage by reason of the alleged breaches. By the fourth plea the defendants set up, that, after the return of the execution, a summons was obtained in Chambers in the Di- vision Court suit, calling on Malloy to shew cause why he should not be ordered to pay into Court to the credit of the cause the amount of damage alleged to be sustained by the plaintiffs by rea- son of his neglect, connivance or omission ; and that both the par- ties appeared, and the Judge, after hearing them, discharged the summons with costs ; and that the order still remained in force, and the cause of action mentioned in such summons, and the breaches alleged in the declaration, were the same. ' h ;■! 1 a 'it I •1 n ^''1 I:- '4;; D8 BAILtrF. At the close of the evidence the learned Judge practically with- drew the case from the jury, and directed a verdict for thv defen- ■dants, on the ground that these i)leaa had been completely proved. In Term he refused a rule nisi, which was moved for on th& ground that the verdict was contrary to law and evidence, and for the re- jection of evidence. His judgment upon that motion was founded upon the view he entertained of the effect of the fourth plea. At the trial proof was given of the copy of the summons served upon the baili£f, which was substantially in accordance with the state- ment in the plea, and upon which was endorsed the Judge's orde'^ of dismissal. The plaintififs counsel desired to adduce evidence to shew that the discharge of the order had not proceeded upon any consideration of the merits, but the learned Judge ruled that such evidence was inadmissible. No proof was given of the identity of the complaint then urged by the plaintiffs with their present cause of action beyond that suggested by the terms of the summons. In banc the learned Judge held that the order was in the nature of a judgment, and concluded the plaintiffs. The plaintiffs appealed. The case was argued on the 11th November, 1879. J. O^Donohoe, for the appellants. The learned J udge was wrong in refusing to admit the evidence tendered to shew that the order made by the Division Court Judge was not conclusive, owing to its having been made without hearing evidence. But the order could not, in any event, have acted as an estoppel, so as to preclude the plaintiffs from bringing this action, as the order only dealt with the damages sustained by the plaintiffs by reason of the neglect in not levying, while this action is for neglecting to return, and mak- ing a false return of the writ, under the 221st section of the Division Courts Act, R. S. O. ch. 47. The order was not proved in the manner pjinted out by R. S. O. ch. 47, sec. 37 : Begina v. Bowland, 1 F. Ac F. 72 ; Dewes v. Bily, 11 C. B. 434. Br culty in Hobaony. Thelbtsson, L. R. 2 Q. B. 642, because they were at liberty to draw inferences of fact, and, acting as jurymen, they found that the plaintiff had sustained no damage. The case of Brown v. Wright, 35 U. C. R, 378, was even clearer in favour of the defendant, for the assignment in insolvency had actually been executed before the execution was issued. There were, there- fore, no goods, the property of the execution debtor, upon which a levy could be made. The proper course was for the learned Judge to have held that the fourth plea was not proved, and to have left it to the jury to say whether, if the bailiff had proceeded regularly upon the execution, the debtor would have been placed in insolvency, and a. recovery thus prevented ; and to have directed them that if this would have been the result, the plaintiffs could only recover nominal damages, under the 221st section ; but that otherwise, as there were goods of ample valu^to satisfy the execution, the plaintiffs were entitled to a verdict for their full claim. The appeal must be allowed, with costs, and a rule must issue in the Court below for a new trial, without costs. i.i ADDITIONAL RULES AND ORDERS FOR '11 THE DIV^ISIOI^ OOUHTS. PROVINCE OF ONTARIO. » We, the undersigned, " the Board of County Judges, acting un- er and in pv -s" >, ice of the powers vested in us by ** the Divi. on ourts Act," have framed the following additional Oener:J Rules and OiUora, to be in force from and after the first day of January, A.D. 1880, until otherwise ordered ; and we do certify the same to the Honourable the Chief Justice of the Court of Queen's Bench of the Province of Ontario accordingly. RULES. Rule No. 171. — From and after the first day of January,' A.D. ] 880, Rule No. 170, of the Supplementary General Rules of the 26th June, 1874, and Schedule of Clerk's Fees (Form 127), and Schedule of Bailiffs' Fees (Form 128), shall be rescinded ; and from and after the said first day of January, 1880, the fees set forth in the tariff hereto annexed, marked " Schedule of Clerks' Fees " (Form 130), and " Schedule of Bailifls' Fees " (Form 131), shall be the fees to be received by the several Clerks and Bailiffs of Division Courts in Ontario, for and in relation to the duties and services to be per- formed by them, as officers of the said Courts, and shall be in lieu of all other fees heretofore receivable. n ■ I'll Ij lii i ' \ 1 > 104* ADDITIONAL RULES AND ORDEBS. Rule No. 172. — At the opening of every Court, and at such other times as the Judge shall require, the Clerk shall lay before the Judge the returns of Bailil!^, under Rule 93, duly certified under Rule 94. Rule No. 173. — The Clerk shall, at every sitting of the Court, report in writing to the Judge as to the several sureties of himself and the Bailiff or Bailiffs of his Court, whether any of them have died, become insolvent or left the County since his last report, and mentioning any facts connected therewith which ought to be made known to the Judge. Rule No. 174. — Every Clerk is expected and enjoined to answer promptly all reasonable inquiries made touching their suits by the parties thereto, their attorneys or agents ; if no postage stamp is sent him for reply, then such answer may be by post card. Rule No. 175. — On payment of a fee of 5cts. every Clerk when required by parties paying costs, shall give a statement, in writing, of items iu decail, or transmit the same by postal card. Role No. 176. — The Bailiff receiving an execution shall im- mediately endorse on the same a correct statement of the day and hour of the day when he received such execution, and in addition to the formal return (Form 124) on every execution returned, he shall give a correct and full statement of the particulars, in detail, of all his charges made for fees and disbursements in the execution thereof ; and a similar statement in making returns of Writs of Re- plevin and Wai'rants of Attachment. Rule No. 177. — In case of any process or paper received for ser- vice or execution from a " Foreign Court," the Clerk so receiving the same and procuring the service or execution thereof shall, on returning the same, give a full and correct statement, in detail, of the items of all charges made for fees and disbursements in respect of such service or execution of process, and the Clerk who receives the same shall report to the Judge of his own county any charge made by the Clerk of the " Foreign Court " in excess of the allow- ance for fees made by the tariff. Rule No. 178. — Rule 89 of the General Rules of the Ist of July, 1869, is amended as follows : — All the words after the word " Sum- ADDITIONAL RULES AND ORDERS. 105 mons " in the said rule are struck out, and the following are substi- tuted in lieu thereof : — " And the Bills given under Form 129 show the forms in which such Bills may be made out, and are to be taken as guides in framing and taxing such Bills." Rule No. 179.— Form 114 in the Schedule of General Forms is hereby rescinded, and Form 129 is substituted therefor. Rule No. 180. — When any notice required to be given to any' of the parties to a suit is sent through the Post Office, the Clerk shall register the letter containing such notice, and shall obtain and pre- serve with the other papers in the suit, a certificate of such regis- tration. Dated 28th November, 1879. JAS. ROB'T GOWAN, Senior Judge C. S., Chairman. S. J. JONES, County Judge, Brant. D. J. HUGHES. County Judge, El^gin. Approved. John H. Hagarty, C.J., Adam Wilson, C.J., C.P, Thomas Galt, J., M. C Cameron, J.Q.B., F. OSLEE, J.C. P. '1 ':' ■ !. f I ; I :< FOEMS OF BILLS OF COSTS. FORM 129. • ' "■'■' Bill of Costs upon a claim for, say, $20 up to and including judgment entered by the Olerk, upon special summons, no no- tice of defence being given. V Clerk's Fees. ' ' Receiving claim, numbering and entering in Procedure Book 90 15 Issuing summons, with necessary notices and warnings thereon 30 Copy of summons, including all notices and warnings thereon 20 Receiving and entering Bailiff's return to summons. ... 10 „. ■ Affidavit of -^rvice and administering oath to the depo- , nent 25 Notice to plaintiff, when defendant has failed to give notice of defence, 10c. ; postage and registration, 5c . 16 Entering final judgment by the Clerk 40 Total Clerk's fees $1 65 Bailiff's Fees. Service of summons ^20 Return of service, and attending Clerk's office to make necessary affidavit 10 $0 30 Total Bailiff 's fees Total coats $1 35 Taxed this day of , 18 . Clerk. II ii 'I I FOBM129.] FORMS OF BILLS. 107 Bill of Costs upon claims for, say, $60.00, defended, cause tried, and judgment entered for plaintiif, with costs. ClerVs Fees. Receiving claim, <&c 00 15 Issuing summons, &c 40 Copy of summons, &c. . ■ . 20 lieceiving and entering Bailiff's returns, &c 10 Affidavit of service, &c 25 ' Subpoena to witness 10 Three copies ' 15 ' Notice of defence, <&c., to plaintiff, and mailing same, 10c. ; postage and registration, 5c 15 Recording and entering judgment rendered at the hear- ing 40 Total Clerk's fees $190 Bailiff 's Fees. Service of summons, a 118 OFFICERS OF THE DIVISION COURTS. FRONTENAC. 2nd. 3rd. 4th. .Kingston Clerk. . .Wolfe Island Bailiff. << << ICataraqui. Clerk. .Kingston Bailiff. .Loborough Clerk. •« Bailiff .Verona Clerk. •' Bailiff. Ist John Duff M. Furlong J. A.Gardner ..P.McKim John A. Gardiner . . C. Ruttan J. W. Freeman. , ..A. Grant , Henry Sly S. W. Davey M.W.Price Arden " 5th D. J. Walker Inverary Clerk. W.Walker " Bailiff. III' -1, Iki; I j{; I-*'.: 1st.. . 2nd.. 3rd.. 4th.. 5th.. 6th.. GREY. .John Stephens Owen Sound Clerk. Robert Edgar " Bailiff. . David Jackson Durham Clerk. Thos. Meredith " Bailiff. .Thos. Plunkett Meaford Clerk. A. Watt " Bailiff. .T. J. Rorke Heathcote Clerk. A. Mitchell Clarksburg Bailiff. . J. W. Armstrong Flesherton Clerk. A. S. Vandusen. " Bailiff. .John McDonald Chatsworth Clerk. Wm. B.Simpson " Bailiff'. Ist.. 2nd. 3rd. 4th. 5th. 6th. HALDIMAND. . Wm. Jackson Caledonia H. J. Ince Willow Grove. .Wm. Mussen Cayuga Andrew Finlen " .Thos. Armour Dunnville J. Clemmo " .J. Plonsberger Rainham Jacob Fite " .S. K. Smith Canboro E.W.Robins " .C E. Bourne. Jarvis M. Atkinson Cheapside .Clerk. .Bailiff. . Clerk. . Bailiff. . Clerk. .Bailiff. . Clerk. .Bailiff. .Clerk. . Bailiff. . Clerk. .Bailiff. 1st.. 2nd. HALIBURTON. .C. D. Curry Minden. . . . R. C. Garratt " .... .C. A. Wastell Haliburton. W. Crosstliwaite '* .Clerk. . Bailiff. . Clerk. .Bailiff. let., HALTON. .Wm. Panton Milton. Jas. H. Fraser " . Clerk. .Bailiff. I OFFICERS OF THE DIVISION COURTS. 119 2nd R. Balmer Oakville ^ Clerk. S.Bell " Bailiff. 3rd J. Hols^ate Georgetown Clerk. John Hayes " Bailiff. 4th Jas. Matthews Acton Clerk. Wm. Hemstreet " Bailiff. 5th S. R. Lister Nassagaweya CUrk. E. Chapman " Bailiff. 6th W. S. Bastedo Burlington Clerk. J. W. Henderson. " Bailiff. HASTINGS. Ist R. C. Hulme Belleville Clerk. John Bull & W. H. Sfcinson " Bailiffs. 2nd D, R. Ketcheson Wallbridge Clerk. J. E. Bleecker Frankford Bailiff. 3rd H. Holden Shannonville Clerk. , Bailiff. .Tweed .' Cleric. . " Bailiff. .Stirling Clerk. " Bailiff. .Madoc Clerk. . " Bailiff. .Ivanhoe, Clerk. " Bailiff. .Cauifton Clerk. .Belleville Bailiff. .Trenton Clerk. . " Bailiff. .Marmora Clerk- W. R. Lazier 4th Jas. Reid W. J. Bowell. 5th Geo. E. Bull.. C. Butler. 6th G. D. Rawe.. Henry Bull. . . 7th Thos. Emo... JohnB. Fox. . 8th Jacob Sills. .. . W. H. Stinson 9th J. Simmons . . Thos. Warren 10th D. Bentley.... L. Cruickahank " Bailiff. 11th E. James Bridgewater Clerk. Washburn Ashley " Bailiff. 12th J. Wilson L'Amable aerk. Gto. McLean " Bailiff. . • I'i m M .«iii HURON. Ist 0. S. McDougall. • J. C. Currie 2nd L. Meyer J. Brine 3rd W. W. Farran... D. Dickenson. . . . 4th A. Hunter F. S. Scott 5th R. Trivett J.D.Ellis 6th Jno. Cooke Robert Hagen . . . 7th W. W. C^nuor. J. FergU8,.»n 8tk.,....D. Watson W. McConnell.. .Goderich Clerk. " Bailiff. .Seaforth Clerk. . '« Bailiff. Clinton Clerk. Bailiff. .Brussels vlerk. " Bail^. .Exeter Clerk. " Bailiff. . Dungannon Clerk. Bailiff. .Bayfield Clerk. " Bailiff. .Wingham Clerk. " Bailiff. l }'• 120 OFFICERS OF THE DIVISION COURTS. S:<4t 9th. 10th. 11th. l8t .A. Gibson Wroxeter . Jos. Cowan " . M. Zeller Zurich . . , E. Bossenbury " . A. A. Hobkirk Crediton . . J. D. Ellis Exeter.... KENT. .Clerk. . Bailiff. .Clerk. . Bailiff. .Clerk. .Bailiff. Clerk. Bailiff. << . . W. B. Wells Chatham T. H. Nelson " Chas. J. Moore " 2nd J. Duck Mori)eth Clerk. Wm. Teetzel *' Bailiff. 3rd S. Wallace Dresden Clerk. Chaa. Stephens " Bailiff. 4th Geo. Young Harwich Clerk. J.A.Little&W.R.Fellowes " Bailiffs. nth John Lillie Wallaceburg Clerk. L. A. McDougal ' Bailiff. John Broderick " \ *' 6th J. Taylor Bothwell aerk. S.J.Thomas " Bailiff. H.F.Smith " " 7th D. R. Farquharson Tilbury East Ckrk. M. Dillon Merlin Bailiff. m; :M LAMBTON. Ist H. M. Pousette Samia R. Miller " 2nd A. D. Elliott Watford . . . J.T.Elliott " ... 3rd W. Webster Florence . . . Thos. Mead " ... 4th P. Cattanach Sombra W. Cornwall " .... 6th T. R. K. Scott Ogema . . . . John Edmiston " 6th T. Kirkpatrick Thedford . . J. S.White &Jno. Allen.. 7th Robert Dale Mooretown R. Richmond " 8th W. G. Eraser Petrolia . . . John Sinclair " 9th J. N. Brennan Alvinston . . T. Cahill ...Ckrk. ...Bailiff. . . . Clerk. . .Bailiff. . . . Ckrk. ..Bailiff. ...Clerk. . .Bailiff. ...Ckrk. . . Bailiff, . . Clerk. . Bailiffs. .,. Clerk. . .Bailiff. ..Ckrk. ..Bailiff. ..Ckrk. . .Bailiff. LA.NARK. Ist R. Jamieson Perth Clerk. Jas. Patterson *' Bailiff. D. McKerracher " " 2nd W. A. Field Lanark Ckrk. Peter Kerr " Bailiff. 3rd James Poole Carleton Place Ckrk, George McPherson *' Bailiff. J. McPherson Almonte " i: OFFICERS OF THE DIVISION COURTS. 121 4th. 5th. 6th. .W. M.Keith.... H. D. Chalmers . .rohn Cowan .... Wm. Scott . J. Patterson J. McPheraon . . , .Smith's Falls Clerk. " Bailiff. . Packenham Clerk. Bailiff. .Almonte Clei-k. " Bailiff'. 1st . . and. 3rd. 4th. 5th. 6th. 7th. 8th.. 9th. 10th. nth. 12th. LEEDS AND GRENVILLE. .D. B. Jones Brockville Clerk. H'y McPhall & N. Marshall " Bailiffs. .B. White Prescott Clerk. J. Jenkinson " Bail^. .S, McCammon Gananoque Clerk. S. F. Greenizan " Bailiff. .11. Leslie Kemptville Clerk. J.Dickinson " Bailiff. .E. H. Whitmarsh Merrickville Clerk. P. DowdeU '• Bailiff. .W. H. Denaut Delta Clerk. ' W. H. Denaut, jr " Bailiff. .II. McCrae Franfeville Clerk. R. Richards & Uriah Stone " Bailiffg. . H. Kilbom Newton Clerk. J. McGregor. West Port Bailiff. W. G. Mitchell Newboro' " .D. Mansell Farmersville Clerk. R.Johnson ' " BoMiff. .D. H. Keeler Spencerville Clerk. Wm. Stittjr " Bailiff. .B. Colbom N. Augusta Clei'k. S. J. Whaley " Bailiff. . F. A. Munro Mallorytown Clerk. F.Thomson " Bailif. ■Ik Ist. 2nd. 3rd. 4th. 5th. 6th. 7th. LENNOX AND ADDINGTON. .Charles James Napanee Clerk. Zina Ham " Bailiff. .C. L. Rogers Bath Clerk. R. R. Finkle " Bailiff. .J. J. Watson Adolphustown. '. Clerk. D. Davem " Bailiff. .P. Johnstone... Camden East Clerk. Zlna Ham Napanee Boiliff, .Wm. Whelan Centrevilie , P. Vanderwater " H. Pultz Wilton. . . . John Simmons " .... .T. Miller Tamworth. P. T. Carscallen T. F. Dunham Kaladar... . Clerk. .Bailiff. . Clerk. . Bailiff. . Clerk. . Bailiff. << ».V|i LINCOLN. Ist W. S. Winterbottom Niagara Clerk. P. Hennigan '* Bailiff. R i. i', ■■i.: '(■ ■ J:! I : ■ i;. : 11'^ hi 1 I mi 1 I / 122 2nd.., 3rd... 4th. . . Ist... 2nd.. 3rd.. 4th... 5th.., 6th.., 7th... 8th... 9th.., OFFICERS OF THE DIVISION COURTS. .Thos. Pearson Smithville Clerk, Alvin D. Lacey '* bailiff. .W. A. Mittleberger St. Catharines Clerk. Wm. Brownlee " Bailiff. .J. C. Kerr Bearasville Clerk. F.B.Rogers " Bailiff. MIDDLESEX. 1st . . . 2nd .. 3rd... 4th.., 1st... iBt. 2nd. 3rd. 4th. 5th. .J. C Meredith.. J. Harris .G. G. Hamilton. Thos. Priestly . . .J. Flanagan G. W. Hodgins. C. J. Fox J. Fitzallen . Geo. Wilson .... P. Deming . Jno. English... . F.Wilson .Thomas Smith. . A.Smith .James Grant . . . A. Cummings . . . Henry Imlack . . Jno. Beverly . London Clerk. " Bailiff, . Ailsa Craig Clerk. " Bailiff. .McGilHvray Clerk. Bailiff. . Delaware Clerk. Bailiff, . Glencoe.. . Clerk. .Newbury Bailiff. . Strathroy Clerk. , " Bailiff. . Nilestown Clerk. Bailiff. .Avon Clerk. . " Batliff. . London East Clerk. .Dorchester Station Bailiff. MUSKOKA. . T. M. Bowerman Bracebridge Clerk. R. H, White " Bailiff. . J. H. Jackson Severn Bridge Clerk. Joseph Nelson Gravenhurst Bailiff. .B. Phillips Huntsville Clerk. William Hanes " Bailiff. .R. G. Penson Port Carling Clerk. Robert Giles " Bailiff. NIPISSING. . JohnMcMeekin Mattawa Clerk. Xavier Ranger " Bailiff. NORFOLK. W. R, Griffin Simcoe Nathan Pegg " .Ed. Matthews Waterford Ed. Grace " . R. Greene Windham Centre , D, 0. Wood Simcoe .C. S. Harris Courtland R. Power Delhi . W. Hewitt Vittoria W.C.Doyle " .Clerk. . Bailiff. . Clerk. . Bailiff. . Clerk. .Bailiff. .Clerk. .Bniliff. . Clerk. .Bailiff. OFFICERS OF THE DIVISION COURTS. 123 6th.. 7th.. 8th.. , .S. P. Mabee John Tolmie . .T. C. Chamberlain. Thomas Pierce . . . , . Lawrence Skey . . . Hiram Fairchild... .Port Rowan Clerk. " Bailiff. . Houghton Clerk. .Clear Creek Bailiff. .Port Dover. Clerk. " Bailiff. NORTHUMBERLAND AND DURHAM. Ist. 2nd. 3rd. 4th. 5th. 6th. 7th. 8th. .Bowmanville Clerk. BaiMJ. 9th.. 10th. 11th. Ist. 2nd. 3rd. 4th. 5th. 6th. 7th. 1st. 2nd 3rd. ..F. Cubitt Charles Coleman PeterColeman " ..S. Wilmot Newcastle Clerl. James (.'oleman '* • • • Bail ff. Gr. M. Furby Port Hope Clei k. J. T. Henwood " Bailiff. .John Hunter Millbrook Clerk. Henry Atkins " Bailiff. .A. G. Boswell Cobourg Clerk. Orrin Dean " Bailiff. . .T. Bingley Grafton Clerk. Thomas Patterson " Bailiff. . .W. Johnston Colbome Clerk. . .G .S. Burrell Brighton Clerk. P. M. Dulmage " Boiliff. .R. R. Hurlburt Warkworth Clerk. G.H.Boyce " ...Bailiff. . .C. W. Smith Wooler Clerk. T.P. Garrat " Bailiff. . .D. Kennedy Oampbellford Clerk. Robert Cock " Bailiff. ONTARIO. .D. C. Macdonell Whitby Clerk. J. W. Palmer " Bailiff. .M. Gleeson Greenwood Clerk. G. W. Matthews Brougham Bailiff. . . J. Bumham Port Perry Clerk. James Paxton " Bailiff. . .Z. Hemphill Uxbridge Clerk. J. E. Widdifield " Bailiff. . .C. Bumham Canninglon Clerk. S. Baird " Bailiff. . . George F. Bruce Beaverton ... Clerk. Donald Ross " Bailiff. . H. E. O'Dell Atherly Clerk. C.E.Hewitt " Bailiff. OXFORD. .F. W. Macqueen W. H. McKay . . .C. D. Rounds ... O.W. Cowan.... . D. Matheson . . . . Thos. Cowan. . . . .Woodstock Clerk. " Bailiff. .Drumbo Clerk. " Bailiff. .Embro Clerk. . Ingersoll Bailiff. ■? -.1 11 r ■■■Ml (::| I II!'' 1 W'' If ' i i • 1 ' 1 if ' 1 ' r 1 1 \ r \ ( iB,;;- ■ t #'► M ll 4 1 ffi'f- % lii ■ ' ' *- -J i ( '^hI ■i n 124 4th. OFFICERS OF THE DIVISION COURTS. .James Barr Norwichville Clerk. Wm. Stroud " BaiHff. 5th "[). Canfield IngerBoU Ckrk. ThoH. Cowau " Bailiff. 6th J. Hodgson Tilsonburg Clerk. M.Dillon " Bailiff. PARRY SOUND. Ist, 2nd .R. H. Stewart Parry Sound Clerk. T.W.George " Bailiff. .Henry Armstrong McKellar P. O Clerk. W. J. MoflFat " Bailiff. 3rd E. Sweet Ashdown Ckrk. John Horton " Bailiff. 4th J. McKenzie Beggsboro Clerk. John Boys " Bailif. 6th S. G. Best Magnetawan Clerk. D. J. Brodie " Bailiff. Ist. 2nd 3rd. 4th. Ist . 2nd 3rd. 4th. 5th. €th. Ist. 2nd 3rd. 4th. Sth. PEEL. .T. A. Agar Brampton . . Wm. Broddy . A. Simpson Streetsville G. E. Hawkins . Jno. Harris Caledon. . . . Jas. McQuarrie " .L. R. Bolton Albion J. C. Switzer " -' PERTH. .D. B. Burritt Stratford . . . T. Tobin . Thos. Matheson Mitchell J. S. Coppin.. •' .... .E. Long St. Marys. . . Wm. Box " . George Brown Shakespeare Chas. Lehman " .Thos. Trow Milverton. . . H. Tauber .D. D. Hay Listowell . . . R.Hay J. B. Loree " . . . . PETERBORO'. .R. W. Errett Peterboro. Chas. Stapleton " .J. H. Butterfield Norwood . A. R. Anderson " .T. Campbell Keene A. W. Mclntyre " . . . . . S. Sherin Lakefield . Chas. Payton " .C. R. D. Booth Apslejr. . . . A. Brown Burleigh , . ..Clerk. ..Bailiff. . . Ckrk. ..Bailiff. ..Clerk. .Bailiff. .Clerk. .Bailiff. .Clerk. .Bail iff". .Cleik. .Bailiff. .Clerk. .Bailiff, . Clerk. .Bailiff. .Clerk. .Bailiff. .Clerk. .Bailiff. ^^^p'ipy-- Newmarket W. M. Malloy Sharon 6*h Wm. Fiy Sutton *xi. A ?• Sheppard Georgina BailifT «*" A.. Armstrong Lloydtown oUrk' J. W. Crossley Kins.. »«.•«# 7*^ L^irw\°ri wofdbridge: ;;;;;;;;;;;;;;;;:?Kr Jaa. Stewart Toronto Uniin^ 8th John Paul Weston.. ..:: g&' Jas. Stewart Toronto. . RnAU0 9tl» J- H. Richardson Highland (ireek ." ." ." .' .' .' .' ,' .' ." " " ' ' Si loth E;Ri>uggai::::::::;::;Toronto.;;.v;.;.;.v.v.v;.:--cS?f* Ed'G««» " ::::::::::Mff. !!.^ r. wmm i; (ill TABLE OF FOEMS. Ill : ■ AFFIDAVIT. for change of place uf trial, by defendant. 13. by defendant s agent, 14. of justification, 35. of execution of bund, 36. for judgment aummons by plaintiff, 68. by defendant, 68. ( BILLS OF COSTS. for clerks and bailiffs, 106. BOND. on appeal under extension of jurisdiction, 34. on appeal under Master and Servant Act, 62. CERTIFICATE. of Clerk, to Court of Appeal, 38. CONSENT. to place of trial, 22. NOTICE. of motion for change of place of trial, 15. disputing jurisdiction, 25. ^ of intention to appeal, 33. ~ staying proceedings on appeal, 33 of setting down appeal for argument, 39. of appeal under Master and Servant Act, 61. requiring jury under Master and Servant Act, 64. ORDER. for change of place of trial, 16. allowing substitutional service, 71. PROCEDURE BOOK. entry in, of appeal under Master and Servant Act, 63. SUMMONS. for change of place of trial, 15. m GENERAL INDEX. ABANDONMENT. See Executiov. ABSCONDING DEBTOR. increased jurisdiction applies to proceedings against, 9. extent of such application, 9. ACKNOWLEDGMENT, ^ee Jurisdiction (Extrnsion ow). ;!i ERRATUM. ' Owing to a change in the paging »f the volume, it will he neiieswiry, iu reading this Index, to add 10 to each number given therein. ! f': AGENT. — — - signature by, to bring case under new jurisdiction, 7. meaning of the word discussed, 18. for service in appeal proceedings, 35. APPEAL. (Under Master and Servant Act.) See Master and Servant. APPEAL. (Under Extended Jurisdiction.) right of, practically reduced by this Act, 8. lies to Court of Appeal, 29. under what circumstances, 20. allowed when sum in dispute on appeals exceeds $100, 8, 29. *fcV' TABLE OF FORMS. AFFIDAVIT. for change of place of trial, by defendant. 13. by defendant's agent, 14. of justification, 35. of execution of bond, 35. for judgment summons by plaintiff, 68. V» - «^««%/X/\. . „ ^ ^v4uj^a uii appeal, 33 of setting down appeal for argument, 39. of appeal under Master and Servant Act, 61. requiring jury under Master and Servant Act, 64. ORDER. for change of place of trial, 16. allowing substitutional service, 71. PFOCEDURE BOOK. ntry in, of appeal under Master and Servant Act, 63. SUMMONS. ^ for change of place of trial, 15. GENEBAL INDEX. ABANDONMENT. See Execution. ABSCONDING DEBTOR. increased jurisdiction applies to proceedings against, 9. extent of such application, 9. ACKNOWLEDGMENT. See Jukisdiction (Extbn8I0N o»). ACTION. where may be brought under new jurisdiction, 11. where cause of, ai'ises I'nder same, 11, 12. against Bailiff for false return. iSfee Bailiff. AFFIDAVIT. for change of place of trial, by defendant, 13. by defendant's agent, 14. . of justification, 35. of execution of bond, 35. "^ for judgment summons by plaintiff, 68. • by defendant, 68. , for order for substitutional service, 71. AGENT. signature by, to bring case under new jurisdiction, 7. V meaning of the word discussed, 18. for service in appeal proceedings, 36. ' APPE2..L. (Under Master AND Servant Act.) See Master and Servant. ' y APPEAL. (Under Extended Jurisdiction.) right of, practically reduced by this Act, 8. lies to Court of Appeal, 29. under what circumstances, 29. allowed when sum in dispute on appeab exceeds ^100, 8, 29. >•:? - n ... i ! t I m ■m .^li iff 111 i ! i i 132 GENERAL INDEX. Il'i APFEAL— Continued. meaning of " sum in dispute on such appeal," 8, 29. ■ none in case of tort or replevin, 8. evidence at trial to be taken down, 10. agreement may be made not to appeal, 10. when may be made and effect of, 10. '• only lies after application for new trial, 29. reason and effect of this, 29. grounds on which parties may appeal, 30. \ /. extent of the right to appeal discussed, HO, 31. meaning of words "dissatisfied with the decision of a judge," 30. where question involves conflict of evidence, 31. proceedings in, to follow County Court Act, 30, 31, 32. sections of County Court Act applicable, 32. meaning of " party to a cause " and " appellant," 29, 32. notice of appeal should be given, 33, 35. - form of, 33. stay of proceedings pending appeal, 33. " order to be obtained, 33, 34. form of, 33. ■ service of, 34. security to be given on, 32. within what time, 34. may be by payment of money, 32, .34. by bond, requisites of, 32. form of bond, 34. affidavit of justification required, 32, 36. form of, 35. affidavit of execution required, 32. form of, 35. practice on perfecting, 34, 36. ' execution of and parties to, 34. excepting to sufficiency of , 36. to be filed in Court, 36. ^ appointment of agent for service of appeal papers, 35, 36. service of papers if none appointed, 37. clerk to transmit papers, 37. to give certificate of pleadings, evidence, etc., 37. form and requisites of, 37. to give duplicate if required, 38. GENERAL INDEX. 133 APPEAL— Continued. > ' setting down appeals, 38. notice thereof to be given, 38. form of, 39. to be heard before a Judge of the Court of Appeal, 39. powers of appellate judge, 30, 31, 39. costs provided for, 39, 40. limited to $15 and disbursements, 40. APPOINTMENT. -Sfee Clerk— Bailiff. ARREST AND IMPRISONMENT ACT. provisions as to judgment summons do not apply to, 70. ATTACHMENT. procedure by substitutional service partly supersedes, 72. duties of bailiff on receiving warrant of, 104. ATTORNEYS. their position under this Act, 18, 19. AUCTIONEER. signature by, to bring case within new jurisdiction, 7. BAILIFF. appointment and dismissal of. See Clerk. additional security by, 11. suits against— where may be brought, 26. proceedings on transcript, 27. subject to inspection by Inspector, 41. to produce books, etc., when required, 43. to inform him of appointment, 43. V to inform him as to sureties, 43. to have and produce certificate of Clerk of the Peace 44. fees— forms of bills and tariff, 106, 107, 109, 111. to keep book of fees, 44. to make return of fees earned, 44. ; meaning of " fees earned," 44, 48. not to collect claims on commission, 47. necessity and effect of this enactment, 47. action against for false return, 86. inaction of, a question for the jury, 86. ' [1 "if ^M A'. I a V. |;i; 134 GENERAL INDEX. I! ■ BAlLlEF^Continned. breach of duty without actual damage, 86. summary proceedings under sec. 220 no bar to action, 86. additional duties under Eules of November, 1879, 104. BALANCE— meaning of, 4. BILLS AND NOTES. up to $200 are within new jurisdiction, 3. forms of, 106. BOARD OF COUNTY JUDGES. may make rules under Act, 74. . BOND as security on appeals. See Appkals — Master ani> Servant. CAUSE OF ACTION. ' where it arises, 11. cheque drawn in one Division, payable in another, 12, 17 arising on agency of party making contract, 76. part of contract by letter, 78. CHANGE OF PLACE OF TRIAL. See Venue. CLERK OF THE PEACE. to give certificate to Clerk and Bailiff on demand, 44. CLERK. appointment and dismissal of, power given to Lieut. -Governor, 45. power of Judge to suspend or remove, 45, 46, 47. duty of Judge in supervising, 46. ' additional security by, 11 , 104. suits against — wheie may be brought, 26. enforcing same by transcript, 27. list of books to be kept by, 41. provision as to attending office, 41, 42. how far entitled to holidays, 41. , subject to inspection by Inspector, 41 . . > to produce books etc. , for his inspection, 43. to inform him of appointment, 43. to inform him as to sureties, 43. , GENERAL INDEX. 135 CLERK— Continued. to have and produce certificate of Clerk of Peace, 44. to make return of business to Lieut. -Governor, 44. County Court Clerk eligible for office, 46. not to collect debts on commission, 47. necessity and effect of this enactment, 47. when not disqualified as members of Provincial Parliament, 47. fees to, limited, 48. mode of payment discussed, 48. forms of bills and new tariff, 106, 107, 111. to pay excess to Provincial Treasurer, 49. to keep book of, 44. to make return of fees earned, 44. meaning of "fees earned," 44, 48. to return jury fees to County Treasurer, 53. to enter appeal under Master and Servant Act in procedure book, 63. , • * . to mail notice of payment of money, 66. 1 and to procure and file P. O. certificate, 66. no fees provided for this, 67. ^^ notice to be noted in procedure book, 67. duties of, in case of appeal. See Appeals. additional duties under Rules of November, 1879, 104. COMMISSION. ^ officers not to collect debts on, 47. COMMITMENT, fifee Judgment Summons. CONSENT— trial by, in any Division, 21. CONTESTED CASE. N meaning of words discussed, 20. COSTS. See Appeals — Bailiff — Clerk — Counsel Fee — Gar- nishee — Inspector— Master and Servant — Witness Fees. ■A 'Ml * III $ COUNSEL FEE. allowed to successful party in certain cases, 28. rules which should guide as to granting, 28. not allowed in actions of tort or replevin, 28. a- i i4. ■ '. 136 GENERAL INDEX. ' ,i, COUNTY ATTORNEY. to renew executions when no clerk, 67, 73. entitled to fees, 68. COUNTY COURT ACT. sections of, applicable to appeals, 32. how far practice of, to be followed, 30. . COUNTY COURT CLERK. eligible for oflSce of Division Court Clerk, 46. COURT OF APPEAL. Judge of, to hear appeals from Division Courts, 39. COURTS. where suit tried to have full jurisdiction, 23. holding of, in cities, 60. ' ' ■ , both clerV«< may have offices in same Division, 50, in Com vns may be held in Court House, 60. DEBT— meaning ot word, 3. DISMISSAL. &*; T^AiiiF^ Olbek. DISTANCE to be measured as crow flies, 26. DIVISION COURTS ACT. this Act to be read as part of, 74. ENTRY OF SUIT in wrong Court by mistake, 22. EVIDENCE to be taken down by Judge in certain cases, 9, 10. to be used on application for new trial, 10. and for use of appellate court on an appeal, 10. EXECUTION. ^ ^ seizure by writing " sold " on article, and then leaving for 3 months, 81. evidence of abandonment of, 81. ' waiver of abandonment of , 81. . 1' GENERAL INDEX. 137 EXECUTION-ConeJuRY. " JUSTICE OF THE PEACE. Jurisdiction under Master and Servant Act, 66. JUSTIFICATION, (Affidavit of), form of, 36. LEGISLATIVE ASSEMBLY. clerks heretofore appointed may be members of, 47. LIEUTENANT-GOVERNOR. . may appoint and dismiss officers, 46. MASTER AND SERVANT. Act respecting, R. S. O. cap. 133, 67. voluntary contracts of service, 57. workmen may share in profits of business, 67. / verbal agreement to be binding, 68. servants' wearing apparel kept in pledge, 68. justices to decide disputes, 68. agreements made out of Ontario, 69. summary proceedings before justices, 69. justices to take evidence, 59. county where complaints to be prosecuted, 69. servants may summon employer before justices, 69. justices to determine complaints, 60. provision as to appeals, 60. , appeal from convictions under, 56 to be made to Division Courts, 66. formerly to (leneral Sessions, 66. GENERAL INDEX. 141 MASTER AND SERVANT— Confinnerf. * what matters may be appealed, 61. to be made to Division Court where cauae of action arose, 61 . rule governing in such case, 61. notice of appeal to be given and by whom, 61. form of, 61. when to be given, 61. how to be served, 62. -» affidavit of service to be made, 62. notice and affidavit to be filed, 62, 63. bond to be given to opposite party, 62. . form of, 62. • condition of, 63. affidavits required, 63. when may be delivered to respondent, 62. " cause to be entered in procedure book, 63, form of entry, 63. ' - appellant to appear personally, 63. jury may be had if required, 64. proceedings if appeal dismissed, 64. ,, • execution for money awarded or for costs, 64. not to apply to orders under sec. 12 of M. & S. Act, 65. , MISTAKE. entry of suit in wrong Court, 22. MONEY DEMAND. meaning of, 2, 3. ' ' I NEAREST. means nearest as the crow flies, 26. NEW TRIAL. must be applied for before appeal allowed, 29. NOTICE. of motion to change venue, 15. to be endorsed on summons of right to apply to change venue, 24. of intention to dispute jurisdiction. See Jubisdictiox. of appeal. See Appeals. H . '.. ii 142 GENERAL INDEX. 1!, f It ^ ORDER. in which suits are to be tried, 9. PARTNER. signature by, to bring case within new jurisdiotion, 7. PAYMENT— notice of, to be sent by clerk, 06. PENDINa PROCEEDINGS, what are, 74. Act not to affect, 74. PLACE OF TRIAL. See Venue. PROCEDURE BOOK. entry of proceeding on appeal under Master and Servant Act, 03. entry of mailing notice of iiioney received, 67. PROHIBITION.^ after judgment and execution, 75. if case decided in court below after evidence taken, no prohibi* tion lies, 75. otherwise if no such decision and facts clear on affidavit, 75. PROMISSORY NOTES. up to ^200 are within new jurisdiction, 3. RENEWING EXECUTION. See Executiok. RESIDENCE— meaning of, 27. REPLEVIN. jurisdiction extended to ^0, 8. no appeal allowed in, 8. counsel fee not given in cases of, 28. when jury may be had in, 51. duties of bailiff on receiving writ of, 104. RETURNS. See Bailiffs— Clerk— Judgment Summons— Jury. RULES AND FORMS. may be made by Board of County Judges, 74. additional rules of November, 1879, 103. GENERAL INDEX. US SEOURlTy. See ArreALs— Bailiffs— Clbkks—Mastbb and Ser- vant. SERVICE. See Appeals — Judgment Summons— Mastkr and Ser- vant — SuaSTITUTIONAL SeHVICE — SUMMONS — VeNUE. SET OFF. proviBion where set off exceeds amount due plaintiff, G5. SIGNATURE. See Jurisdiction (Extension of). STAY 01" PROCEEDINGS. on appeal under new jurisdiction. Se^ Appeals. SUBSTITUTIONAL SERVICE. order for, may be granted in certain cases, 70, what plaintiff must first shew, 70. what reasonable efforts must be shewn, 70. aftidavit required shewing good ground, 71. ; if order improvidently iasuod, defendant can apply for re- lief, 71. form of order, 71. must be strictly followed, 72. proceedings by attachment partly superseded, 72. SUMMONS. service of, purpose thereby intended, 20. See Judgment Summons. » TALES. See Jury. TARIFF OF FEES, 106. TORT. jurisdiction extended to $60, 8. no appeal in action of, 8. counsel fees not given in case of , 28. S. when jury may be had in action of, 51. 1 TRANSCRIPT— enforcing judgment against officer by, 27. TRANSMITTING PAPERS, on change of venue, 19. on entry of suit in wrong court, 22. 11 ''i.ii if!' I 144 GENERAL INDEX. I: ¥ :% il< ^ ii TREASURER, PROVINCIAL. excess of clerks' fees to be paid to, 49. TREASURER OF COUNTY. to keep account of D. C. jury fund moneys, 53, 54. TRIAL. order in which suits to be tried under increased jurisdiction, 9. place of, on claims exceeding $100, payable at certain place, 11. change of place of trial in such case. See Venue. by consent in any court, 21. VENUE. place of trial under extended jurisdiction, 11. subject to change in certain cases, 11. change of und^vr extended jurisdiction, 11, 21. order for, to be obtained, 12. when application to be made, 13, 17. ' / affidavit, requisites of, 17. ^ •r": by whom to be made, 18. form of, by defendant, 13. form of, by defendant's attorney, 14. to be filed, 15. whether or not application ex parte, 12, 13. under what circumstances granted, 12, 13. notice of application and service, 16. t, , form of notice, 15. ' . proceedings by summons to show cause, 13, 15. form of summons, 15. shewing cause to application, 15, 16. requisites of order, 19. form of, 16. service of order, 17, 20. when more than one debt in di£ferent divisions, 16. propriety of serving notice disputing jurisdiction, 15. papers to be sent to proper clerk, 19. and entered in procedure book, 20. entitling of thereafter, 20. WirNESS FEES. when confession, i&c, given shortly before court, 72. # GENERAL INDEX. 145 ition, 9. ace, 11. WITNESS F-EES— Continued. under what circumstances allowed, 72. clerk to determine, subject to appeal to a Judge, 73. WORDS. Meaning of "Agent," 18. " Appellant," 29, 32. " Ascertained by signature of defendant," 3. "Balance," 4. " Cause of action," 4. "Debt," 3. " Dissatisfied with the decision of a judge," 3 " Fees earned," 44, 48. " Money demand," 2, 3. " Nearest," 26. " Party to a cause," 29, 32. " Pending proceedings," 74. " ^^'.'i in dispute on such appeal," 8, "Talts,"56. ' I Mi^An W^w MmxM^h oo3Sd:3id:E3sroE3D iisr is Tbe Recognised Medium of tbe Profession in Ontario. ^■W^XX^'W'VVW'VWW^ ^1 Each number contains valuable orig;inal articles on Legal Subjects of interest to Lawyers and Students, I Ml With careful selections from other legal periodicals. In it are published early notes of all cases decided in the Supreme Court of Canada, and the Superior Courts of Onta- rio, also reports of cases not to be found elsewhere ; full statement of the proceedings of the Benchers in Convocation ; Law Student's Department, Correspondence, &c. lPoc'±oe - - $5.00 ±33. -A-a--^aiia.oe. • WILLING & WILLIAMSON, TORONTO. N. B.— Complete Sets and Back Numbers can be had on applica- tion at reduced rates. m AIKINS, MOJ^KMAN & OULYEE, i- «; J. A. M. AIKINS. WINNIPEG-, MANITOBA. A. MONKMAN. W. H. CULVEH. t:i.'i Willing A Williamson, LAW AKD GEjSTEEAL BOOKSELLEES, Supply all Books publiHhed and in print at the Lowest Prices. > REDUCED PRICE LIST OF PUBLICATIONS: O'BRIEN'S DIVISION COURT MANUAL, 1879. The Division Courts A.ot, Rules and Forms : with all other En- actments affecting proceedingn in DiviHion f Joints, nuinerons practical and explanatory Notes, Forms, a Tal)le of Division Court Limits, a chap- ter on Prohibition, Mandaums and Certiorari, and a very complete Index. By Henry O'Brien, Enq., Barrister-at-law, Editor -if " ("!)»nada Law .four- nal." Second Edition. 8vo.,C35pp, Half calf, $4 60. Cloth extra, $4 00 O'BRIEN'S DIVISION COURT MANUAL, 1830. The Division Court Act of 1880. Very fidly annotated, with ap- propriate Forms ; aluo, the new Tariif of Fees, list of Division Court Offi- cers corrected to date ; reprint of recent decisions. Half calf, 2 00 Cloth extra i kq BOTH VOLUMES : half calf, $6 50 ; cloth extra .■■.■.■.■ 6 00 TAYLOR'S EQUITY JURISPRUDENCE. Commentaries on Equity Jurisprudence. Formded on Story. By Thomas VVardlaw Taylor, M. A., C^.C, Master in Chancery. 8vo. 564 pp. Half calf 5 00 TAYLOR ON TITLES. The Investigation of Titles to Estates in Pee Simple. By Thomas Wardlaw Taylor, M. A., Master in Chancery. Second edition. 8vo. 210 pp. Cloth 3 OO TAYLOR'S PRESBYTERIAN STATUTES. The Public Statutes Relating to tht> P- esbyterian Church in Canada : with Acts and Kesolutions of the (Jeneral Assembly, and By-laws for the government of the Colleges and Schemes of the Church. By Thomas Wardlaw Taylor, Esq., M. A., Q. C, Master in Chancery. 12 mo. 244 pp. Cloth, $1 00 ; paper 75 WALKEM ON WILLS. A Treatise on the La-w Relating to the Execution and Re- vocation of "Wills, and to Testamentary Capacity. With an Appen- dix containinj'" The Wills Act, 1873," and a number of useful Forms of Wills. By Richard Thomas Walkem, Barrister-at-law. 8vo., 488 pp. Half calf 5 00 WALKEM'S MARRIED WOMEN'S PROPERTY ACTS. The Married Women's Property Acts of Ontario. With Notes of the English and Canadian cases bearing on their construction, and observations respecting the interests of husbands in the property of their wives ; together with the Statutes relating to the conveyance, by married women, of their real estate. By Richard Thomas Walkem, Bar- rister-at-law. 8vo. 95 pp. Cloth 2 00 .^^* Mailed Post free on receipt of price. Catalogues in Law, Theology, Medicine, Education and Miscel- laneous Literature supplied free on application. WILLING & WILLIAMSON, % 10 4 12 KIN(} ST. EAST, TORONTO. I' I' I; ,' RECBMTLiY PUBZiISHED. Harrison's Municipal Manual, FOURTH EDITION, REVISED AND ENLARGED. , EDITED BY F. J. JOSEPH, « BARRISTER-ATLAW. Over 1,200 Pages Domy, 8vo. Full boiuul in Bheop. Price ^7.00. %'V\.'V'^-vv\"\.'VV\,"^'V%";,'\.%v\,%'\-^'\.\.\\v\x-v%X"\.-^- ONTARIO LEGAL DIRECTORY, BY W. E. HODGINS, BARRISTER- AT-LAW. A complete Law List for the Province of Ontario ; with Rules of the Ijaw Society, Acts relating to the Profession, liists of Division (Joiirt Clerks, Coroners, Police Magistrates, County and Judicial Officers, Foreign Correspondents, &c., &c., &c. Price 50 cents. PuMished and for sale by ROWSEIiLi A HUTGHISOnr, Law and Municipal Printers and Stationers, 76 KING ST. EAST, TORONTO. WESTEBN CANADA Loan and Savings Company, TORONTO. CAPITAL $1,000,000. RESERVE OONTINO-ENT FUND, . . . $401,800. TOTAL ASSETS $3,248,000. MONEV TO LEND. Money advanced on improved Oity or Farm Property on +^** most liberal and advantageoud terms. Money received on deposit and interest allowed, compounded half-yearly. WALTER S. LEE, MANAGER. J. RORDANS i lsrox'-v^7-±cItL3 "F!-n gla^x^d- ESTABLISHED 1T9T . . CAPITAL S5,500,000. $100,000 Deposited with the Canadian Government. " The original Stock is worth the fabulous sum of 1700 per cent." — Insurance Monitor. All sums adjusted and paid without reference to the Head Office in England. ADVISOKT BOAKD FOR CANADA : W. B. SCARTH, ESQ., and T. G. PATTESON, ESQ. Solicitors- -'RoBmsoa, O'Brien & Scott. Alexander Dixon, GENERAL AGENT, 32 & 34 Toronto Street, TORONTO. \