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Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 f: /3 SINCLAIR'S DIVISION COURTS ACT: O'-'^XC, I'.EINC A FILL. CAHEFTL AND EXHAI STIVE ANNOTATION <>1' TIIK DIVISION (OUIITS ACT, RULES AND TARIFF, AITKK niK MANNRK OK (( HARRISOiN'S COMMON LAW PROCEDURE ACT, 11 Wirn INSTIiLCTIOXS TO CLEUKSAND liAfLlFKS ON QUKSTIONS MOST FRK(^UEXTi,Y AKISIXG IN TIIK COUHSK OF THEIH DUTIES. ^ BY J. 8. STNCLATE, Q. C. .TIlKiK. or TIIK COrXTY ('OIHT OK TUB COUNTY OK WRNTWOKTlf. 'i' ASSISTKD BV E. E. WADE, ESQ, llAI(l!I.STi:U-AT-r.A\V. T R O N T O HART & KAWLINSON, ■) KING STREET WEST 18 79. tijiiii accm-iiiii- to Act of tlic Parli sand ci-lit Imiuhvd ;iiid <f tile County Court of the Co iiiiicnt of Caiiadii, ill tlio year sevciity-nin,.^ Ijy j, .s. Si> iiiity of WcntHditli -^■••'•AUi, Q.C., ,J To I I THE li(>N(»ri;Al',|;K ATT()i;\i:v.(;|.:xi.:i'Ai, roii THE PROVINCE OF ONTARIO, TKIS WOlMv IS wmi ins I'KUMissioN RESPECTFULLY [NSCKIIIEO BY THE AUTHOR. W^ T PEE FACE It is now several years since any work on Division Court law has been imblislied, and tlio necessity for some work on that siibject is the best excuse I can give for publisliing tliis. After the thought lirst occurred to me of writing something to assist those actively interested in the adminis- tration of law in our Division Courts, I waited long for some one else to take up the subject which I had in mind. As no such work seemed to be forthcoming, 1 connuenced the present volume, not expecting it would iissume the proportions it has since attained to. I soon found that to be really useful, the work had to treat of a greater variety of subjects and assume a much wider range t)f authority than I at first anticipated. As our law so niucli depends on a vast mass of decided cases, I have tried, while avoiding an unnecessary citcation of authority, to give the latest and most authoritative decision on each question discussed. Tiie great point in legal researcli is to know idiere to find the authorities beariTig upon any ({uestion arising in practice, and with a viow of obviating the dithculty st> often experienced in that respect, I have as much as possible given the digests and text-works where such are to be found. The English Courts, and our own, have of late yeai's been so prolific of decisions, tiiat anything more than a general reference to the works in which notes of them are to be found, and to some leading cases, would in a book of this nature be impossible. I have endeavoured t(j bring into practical application every English and Canadian case having especial reference to Division Court practice, and I sincerely hope that in that and other respects the result of my labours will be of service and general utility. That many errors of a grave and serious nature, both omissions and mistakes, will soon be discovex'ed, I cannot but expect. For these I have to ask the kindly indulgence of the critic, pleading as my excuse my inexperience, an earnest desire to be as coiTect as I possibly could in any exposition of law, and the conscious timitlity that is so apt to seize one in his first attempt at book making. Those who are best acquainted with the intricacies of our law, its mazes and refinements, will, I am sure, be the first to overlook the imperfections of my work, and be most reiuly to pardon me if in many cases I have gone astray. I have to thank nu)st sincerely Mr. Wade, who has been associated with me from the first in this publication, and whose sei^ices have been so able and invaluable ; and later on, Mr. Trevelyan Ridout, Barrister- at-Law, of Toronto, who has ably seconded our efforts. i; K m J. S. SINCLAIR. Hamilton, June, 1S79. B LIST OF CONTENTS. • — Dbdication iii Preface v Tabi.k of Oasf,s C'Itkd or introduced ix List of Akbreviations xxxi DivjsioN Courts Act and Notes I Schedule to Act 23') (General Rules and Notes 2.S(5 Forms 27!» Schedule of Clerk's Fees 336 " Bailiff's Fees 337 Evidence Act and Notes 34(} lluLES AS TO Testimony 349 Table of Statutes bearing on D. C. Jurisdiction 301 Names of Judges and Clerks of the several Divisions, and their Addresses 3,-,2 Genkral Index 357 '■1 ■w.\ tA Jt'-,' tm •J? m TABLE OF CASES CITED OR INTRODUCED. V. fiiUovn the nntiif a/ the Plaintiff. Abbott V. Hicks. 120. V. I'artitt, 253. V. llk'hards, 216. Abcrystwiili 1'. I'icr Co. v. Cooper, 88. Ablcy V. Dale, l«;j, 194. 298. Abraliain v. Newton, 129. V. Taunton, 266. Adams v. Ackland, 17. V. Cortield, 129. V. (i. W. U'y Co., 86. Addey v. Deputy Master, 62. Adkin v. Friend, 80, 81. Agra, Ac, Bank, v. Leighton, 119. AlireuH V. Mcfiiiiigat, 46, 74, 87. Ainleyvillo W. M. Ch. v. Grower, 263. AiuHWortli V. Creeke, 182, 200. Alcinbrook v. Hall. 49. AUcod- " Royal Ex. Asa. Co., 130. Alden v. Boomer, 149, 152. Alder v. I'arke, 168. Aldred v. Hicks, 93. Aldridge v. Harper, 75. Alexander v. Brown, 110 V. Dixon, 124. V. Jones, 74, 87. Alison's case, 5. Allan V. Andrews, 128. V. Garrutt, 173. Allen V. Bussey, 100. V. Carey, 104. V. Chisliolm, 121. V. Gibbon, 214. -qui tam v. Jar vis, 17. V. Parke, 58. — V. Taylor, 269. V. Yoxall, 124 Allison, Re, 22. V. Davies, 119, Allman v. Kensel, 234. Allport V. Baldwin, 328. AUsopp V. Eyles, 196. V. Wheatcroft, 21. Alton V. M. R'y Co., 56, 57. Ames V. Birkenhead Docks (Trustees), 151. Amery v. Long, 125. Amor V. Hearon, 77. Ancoua v. Marks, 68. Anderson v. Callov ly, 214. V. (irace, 26, 2;)0. V. Shaw, lot, 113. Andcrton v. Johnstcn, 101. Andrew.^ v. Marris, 16, 17. V. Kusscll, 2115. Anglehart v. Ualliier, 229. Angnive v. Tippett, 159. Apotlu'caries Co. v. Burt, 60. Appelbe V. Baker, 18, 19, 139. Appiebee V. IVrev. 59, 60. Api'legarth v. Coll' y, 49. Appleton V. Lepper, 227. Archer v. Engli^il, 116. V. H-lr, 75. Archibald ilushey, 86. V. Flyiin, 59. Aris V. Orchard, 8.">. Arndt v. Porter, 80. Arnitt v. Garnetf, 219. Arnold v. Bainbrigge, 118. ' V. Higgins, 206. V. Robertson, 102. Arnott V. Bradley, 197, 228. Ashby V. White, 56. Ashewortb v. Heathcote, 165. Askew V. Hayton, 82. V. fijauning, 14. Assam Tea Co., Re. 120. Atkins V. Kilby, 228. Atkinson v. Newcastle, ifcc., Co. 25. Attack V. Bramwcll, 61, 147. Atterbury v. Jarvie, 119. Attorney -General v. Cast Plate, Ac Co., 88. Attorney -General v. Davison, 130, 13S, 134. Attorney-General v. Silleni, 234. Attwool V. Attwool, 118. Atwood V. Chichester, 94, 102, 172. V, Taylor, 137. Auburn Ex. Bk. v. Hemmingway, 345. Augusta (Mun.) v. Leeds ife GrenvilU' (Col.), 48. Auguptien v. Challis, 219. Auster v. Holland, 188. Austin V. Farmi'r, 24. V. Mills, 6, 61, 172. it l>' r ■■■■I TABLE OF CASES CITED OR INTRODUCED. I I Ikcon V. Lftngton. 74, 249. Baddeley, Re, 62. V. Gilmore, 129. Bahia & S. F. Railway Co., Re. 161 Raikion v. Walton, 159. Bailey v. Bidwell, 62. V. Bleecker, 51. V. Finch. 118. V. McAulay, 144. Baird v. Story, 141, 193, 194, 223, 298. Baker v. Clark, 43. V. Coghlan, 95, 126. V. Stephens, 168. Baldwin v. Casflla, 59. Balfour v. Ellison, 102, 130, 1*78. Ball V. G. T. Railway Co.. 50. Bamford v. Clewes, 9fi, 225. Barber v. Dnniell, 173. V. Maughan, 214. V. Wood, 123, 124. Bardell v. Miller, 100. Barnes v. Cox, 82, 83. V. Marshall, 85. V. Williams, 1'24. Barnuni v. Tarnb ill, 135. Barr v. Gibson, 67. Barrett v. Deere, 109. V. Long, 144. Barrow's Case, 137. Barrow v. Capreol, 201. Bartlett v. Wells, 60. Baxter v. Baynes, 121. V. Nurse, 77. Bayley v. Bourne, 138, V. Rimmell. 78, Baylis v. Lintott. 75. Baynard v. Giminons. 150. Bazeley v. Forder, 59. Beach V. Odell, 131. Beard v. Ilines. 52. V. Knight, 218, 220. V. Steele, 131. Beaty v. F<nvler, 34. Beaufort (Duke) v. Crawshay, 132. Bechervaise v. Lewis, 120. Becker v. Ball, 75, 249. Beckwith v. Bullen, 119, Bedwell v. Wood, 169, Beebe, Re, 196. Beekman v. Jarvis, 174. Beeston v. Collyer, 7'; . Bell V. Carey, 118, 119. V. Lamont, 138. Bellliouso V. Gunn, 217 V. McUor, 1«0. Benedict v. Bnulton, 104. V. Vaa Allan, 162. Benjamin v. Elgin (Corp'n), 64. Benner v. Currie, 121. Bennett v. Bayes, 180. V. Parker, 109. V. Potter, 101. V. Powell, 193. Berdan v. Greenwood, 116. Berkeley v. Elderkin. 6. Berniondsey (Vestry) v. Ramsay, 9S, Berry v. Henderson, 122. Bertram v. Pendry, 214. Bessela v. Stern, 348. Best 7. Hayes, 216. V. Hill, 120. V. Pembroke, 150. Beswick v. Boffey, 248. Betteley v. M'Leod, 125. Betterbee v. Davis, 111. Bettes V. Farewell, 135. Bevans v. Rees, ill. Beverley (T'p) v. Barlow, 239. Bickford v. G. W. R'y Co., 63. Biddlecombe v. Bond, 27. Bigelow v. Bigelow, 17. — v. Boxall, 67. Bigge v. Parkinson, 67. Bingham v. Allport, 109. Birch, Re, 43. v. Depeyster, 1 1 9. Bird v. Brown, 58. 60. Birdsell v. Johnson, 348. Birnie v. Janson, 129. Bishop V. Hinxman, 214. v. Holmes, U«0. Bissicks v. Bath Col. Co., 174, 345. Black V. Reynolds, 214. V. Smith, 110, v. Wesley, 82. Blackmore v. Higgs, 50. Blades v. Higgs, 61, 62. v Lawrence, 17, 23, 228. Blair v. Ellis, 56, 02. Blake v. Appleyard, 81. v. Beech, 31, 43, 194, 227. V. Done, 262. V. Jarvis, 151. V. Lawrence, 136. V, Shaw, 77. v. Walsh, 68. Blawey v. Hendrick, 137. Blaxton v. Pye, 49. Bleucarn v. Distillery Co., 77. Bletcher v. Burn, 76! V. Burns, 74. Blewitt V. Gordon, lu2, Bloor V. Huston, 217. Blundell v. Brettargh, 169, -A TABLE OF CASES CITED OR INTRODUCED. XI ".)S. ,«■ i':e. •jit J t ];..ii8t V. Firth, 78, 192. I'.iilenham v. Rickctts; 46. i'Delen v. Melladew, 131. IJolingbroke v. Towusend, 262. Jionaker v. Evans, 31. JJonsey v, Wordsworth, 70. fioorman v. Brown, 55. V. Nash, 147. liooth V. Clive, 16. T. Preston cfe B. R'y Co., 2 15, 216. Horries v. Imp., «fec.. Bank, 120. Uorthwick v. Ravenscroft, 239. V.Walton, 84. IJoswell V. Pettigrew, 214. V. Roberts, 93. Jloulton V. Smith. 176. Boiirdinv. Greenwood, 159. Bourne v. Fosbrooke, 62. Bowen, Re, 44. V, Owen, 112. Bowles V. Johnson, 123, 126. Bowman v. Bowman, lol. Jiowmanville M. Co. v. Dempster, 120. Box V. Green, 80. Boyce, Re, 194, 198. V. Warburton, 136. Boyd V. Hnynes, 100, 148, 149. Boyle V. Ward, 199, 201. Boyse V. Simpson, 149. Jirackenbnry v. Lawrie, 214. liradbnrne v. Botfield, 57. Bradlaiigh, Ex parte, 83. Bradley v. Copley, 59. Brad-haw v. Uutl'y, 45. Brady v. Jones. 111. Braine v. Ilu'it, 214. Brandon V Newington, 113. Brandt v. Craddock, 53. Branscombe v. Scarbrough, 147. Brush V. Taggart, 99. Brazier v. Jones, 6ft. Breedon v. Capp, 46. Hrega v. Hodgson, 106. Brice v. Bannister, 158, 161, 163. Bricker v. Ancell, 263. Bridge v. Branch, 43. Bridges v. Douglas, 45. V. Hawkesworth, 61. Briggs V. Calverly, 110. Biiijham v. Smith, 118. Brighton Arcade Co. v. Dowling, 187. Briiivsmead v. Harrison, 62. Bristow V. Binns, 169. Briti3h(Bankof,N.A.)v.Laii^hrey,151. V, Strong, 211. Brock V. McLean, 1()4. Brook V. Ewers, 139. Brook V. ITonk, 182. Brooks V. H()dy:kinsnn, 60. Broiighton v. Brantford, 78. Brown v. Black well. 107, V. Brown, 132. V. Cinqniars, 171. V. Cockburn, 67, 175. V. Croft, 77. V. Gossage, 98. V. L. <fe N. W. Rj'. Co,, 74, S6. V. McGuffin, 151, 158. V. Merrills, 151, 152. V. Muller, 147. V. Murray, 107. V. Paxton, 26. V. Ruttan, 218. V. Shaw, 51, 179. V. Tibbits, 119. V. Winning, 54. V. Wright, 27. V. Yat(^s. 5. Browne v. Smith, "J:'.?. Bruce v. Cromar, 28. V. Hunter, 137. Brune v. Thompi»on, 116. Brunskill v. Powell, 116. Bryant, Re, 175. v. Herbert, 63. Brydges v. Fisher, 128. Bryson v. Clandinan, lo4. Bubb v. YelviM-ton, 4 9. Buccleuch v. Met. Board of Work.*, 16S. Buchanan v. Frank, 173, 344, 345. V. Smith, 173. V. Young, 61. Buck V. Hurst, 64, 24o. V. Robson, 158, 163 Buckley v. Hann, 74, 85, 86. Buffalo & L. II. R. Co. v. Brooksbanks, 182. Buffalo <fe L. II. R. Co. v. Ilemming- way, 46. Builder v. Kerr, 152. Bull V. Parker, 112. V. Robison, 67. Bullen V. Moodie, 31, 40, 42, 127, 194 V. Sharp, 98. B'dlock V. Dunlap. 172. Bulwcr V. Home, 113. Bunker v. Emmany, '214. Bunnell v. Whitlaw, 181. Burgess v. Gray, 60. '■ v. Tully, 183, 184, Burke v. Glover, 75, 165. Burling v. Harley. 230. Burn V. Bleeher, 75, !04. Burnard v. Haggis, 54. Ni^; ,■'>^•| Xll TABLE OF CASES CITSD OR INTRODUCED. ii I! » ; • :::i Burns v. Butterfifild, 48. V. Steel, '215. Burroughes v. Bayne, 62. Biirrowes, Re, 44, 46, 83, 107, 135, 269. Burton V. Kt)berLs, 149. Burwell v. Edison, 28. Bustros V. Lenders, 165. Butterinerc v. Higgs, 1'22. Butterworth v. W iilker, 43. Butler V. Ablewhite, 87. V. Fox, 129. V. Knight, 147. Button V. Thompson, 75. Byrne v. Knipe, 189. Cadman v. Lubbock, 111. Caine v. Coulton, IK), 162. Caisse v. Tharp, 151. Calder v. Halkett, 17,42. Caledon (School Trustees) v. Caledou (Corporation), 96, 225. Callisiier v. Bis^choffscheini, 66. Galton V. Bragg, 137. Calverly v. Smith, r(4. Cameron v. Cameron, 121. V. Campbell, 95, 191. V. Holland, 173. V. Kerr, 170. V. aiilloy. 59, 274. Campbell v. Coulthard, 180, 188, 205, 211. Campbell v. Davidson, 45, 61, 179. V. Hill, 104. V. Imthurm, 173. V. Madden, 25, 184. V. Peden, 100, 149. V, Pettit, 262. Canada F M. 1. Co. v. Welsh, 88. Canada West F.. die, Co. v. Merritt, 28. Cannan v. Wood, 162. Canniff v. Bogart, 74, 75. Carey v. Lawless, 101. Carmarthen, &c., R. Co. v. Manchester, &c., R Co., 25, 32. Caron v. Graham, 202, 206, 208, 216. Carpenter v. Pearce, 216. Carr v. Bavcroft, 161. V. L.& N. W. R. Co.. 189. V. Tannahill, 5. Carrail v. Potter, 202. Carratt v. Morley, 42. Carrie v. Nicholl, 144. Carroll v. Lunn, 182. Carruthers v. Graham, 129. V. Reynolds, 175. Carus Wilson's case, 222. Carveth v. Fortune, 169. Cary v. Gcrrish, 64. Caspar v. Keachie, 12. Casswell v. Catton, 75. Castelli v. Boddington, 56, 118. V. Groom, 129. Castle V. Ruttan, 175, 177. Cataraqui Cera. Co. v. Burrowes, 82, Cater v. Chignell, 216. Caudle v. Seymour, 201, 227. Challiner v. Burgess, 217. Chamberlain v. King, 230, 231. Chambers v. Chambers, 83. V. Green, 46. V. Reid, 26. Chandler v. Grieves, 78. Chapman v. Davis, 123. v. Gwyther, 67. V. Hicks, 109. V. Shepherd, 158. V. Speller, 61, 175. Chappie V. Durston, 120. Charles v. Branker, 116. Charlton v. Hill, 119. Chasemore v. Tuiner, 169. Chatfield v. Comeford, 211. Ciieese v. Scales, 4. Ciieminant v. Thornton, 112. Chew V. Holroyd, 44, 60. Chichester v. Gordon, 86. Cliishom V. Prov. In. Co., 120, 187. Chivers v. Savage, 44, 53. Christie v. Unwin, 42. Christmas v, Kicke, 94. Cluirchill V. Siggers, 173. Churcliward v. Coleman, 17, 217, 248. Clark V. Chambers, 61. V. Woods. 228. Clarke, Re, 42, 44. V. Cookson, 141. V. Davey, 228. V. P^aston, 177. V. Fell, 1 19. V. Garrett, 182. V. Smith, 267. ■ V. Stocken, 168. Clay V. Oxford, 262. Cleave v. Jones, 169. Cleghorn v. Munn, 43. Cleland's case, 162. Clements v. Kirby, 200. Cle worth v. Pickford, 120. Clinton V. Peabody, 129. Coats, Ex parte, Re Skelton, 200. Coates V. Kelty, 58. Cobbett V. Hudson, 107. Cochrane v. Green, 118, 119. Cocker v. Musgrove, 218. i' TABLE OP CASES CITED OR INTRODUCED. XIU Cogi^s V. Barnard, 20S. Cogiilan V. Ottawa (City), 61. Cohen V. Hale, 99, 163. Coke V. if ones, 189. Colclough V. Smyth, 142. Cole V. Manning, 348. Colebrook v. Dobbs, 106. Coleman, Re, 8 Collingridge v. Paxton, 186. Collins V. Collins, 187. V. Rose, 228. CoUis V. Groom, 100. Collyer v. WiUock, 137. Colonial Bank of Austi-alasia v. Willan, 46. Colvia V. Buckle, 158. Commercial Bank v. Hughes, 104. V. Jarvis, 150. V. Vankoughnet,140 V. Williams, 149,160 V. Woodruff, 171. Comstock V. Burro wes, 131. V. Gulbraith, 131. V. Tyrell, 131. Congreve v. Evett:?, 218. Connelly v. Bremner, 20. Connors v. Darling, 227. Conradi v. Conradi, 5. Converse v. Michie, 174. Conway v. Shibly, 104. Cook V. Allen, 214, V. Cook, 218. V. Fowler, 136, 137. Cooke V. Birt, 196. Cool V. Switzer, 25, 37. Coolidge V. Bank of Montreal, 174. Coombes v. Dibble, 49. Cooper V. Board of Works, <fec., 31. V. Brayne, 150, 163. V. Johnson, 169. — V. Robinson, 119. Coore V. Callaway, 113. Copeman v. Hart, 79. Copping V. McDonell 83. Corbett v. Steam Navigation Co., 87. Cork & Bandon Railway Co. v. Goode, 158. Cornett v. Dompsey, 133, Cornish v. Hockin, 267. Corny ton v. Litheby, 59. Corsant v, Taylor, 6, Corsar v. Reed, 104. Costar V. Hetherin/ifton, 15. Cotton V. Vansittart, 149. Couling V. Coxe, 125. Coulson V. O'Connell, 44, 4*r, 60, 52. Cousins V. Bullen, 66, 91. Couston V. Chapman, 67. Coward v. Gregory, 253. Co well V. Edwards, 28. Cox V. Balne, 214, 219. Cox V. Brain, 108, 113, V. Burbridge, 59. Crabtree v. Messersmith, 69. Craig V. Craig, 218. Cramer v. Mott, 174. Crampton v. Walker, 118. Craven v. Sanderson, 46. V. Smith, 181. Crawford v. Beatty, 172, 193, 227, 229, Cripps v. Davis, 119. V. Hartnoll, 23. Crombie v. Davidson, 116, Crompton v. Huttou, 124. Cronshaw v. Chapman, 60, 177 Cross V. Durrell, 328. Cuckson V. Stones, 78. Culham v. Love, 75. Culloden v. McDowell, 174, 177. Culverhouse v. Wickeus, 151, 153, 160, 162. Cuming v. Toms, 231. Curamings v. Usher, 135. Cundy v. Lindsay, 175. Cunliffe v. Whitehead, 130. Curlewis v. Mornington, 267. Curtis v. March, 92. Cuxon V. Chadley, 119. Dalby v. Humphrey, 137. Dakins, Ex parte, 193, 194, 197, 198. Dale V. Cool, 26, 230. V. Heald, 100, 107. Daniel v. Fitzell, 202. V. Met. R. Co., 105. Danks, Ex parte, 110. Daragh v. Dunn, 478. Dare Valley R. Co., Re, 168. Dark v. Huron (Corporation), 8, Darling v. Rice, 54, Darnley v. L. C. & D, R. Co., 168. Dartnell and Prescott, Ac, Re, 39, 126, 338, 340. Davidson v, Douglas, 149. — — — — V. Grange, 175, V, Perry, 173. v. Reynolds, 178. v. Wat< .loo (Q. S.) 225, 344. Davies v. Fletcher, 193, 194. V. Morgan, 93. Davis V. Can. F. Ins. Co., 107. V. Lovell, 124. V. Moore, 177, 180, 230. m m 'i '\ m 'Ai r m% V. Smyth, 136. XIV TABLE OF CASES CITED OR INTRODUCED. H ! ■ 1 il * ii m ^1 Davis V. Thomas, 828. V. Vandecker, 51. V. Walton, 36, 51. 52. Davy V. Johnson, 96, 180. Dawkins v. Penrhyn, 160. Dawson v. M alley, 151. Day V. Wildook, 214. Dcadnian v. Ewen, 17. Deano v. James, 111, 113. Dearie v. Barrett, 108. Death v. Harrison, 217. De Bnsche v. Alt, 161, 189. Deoring v. Winchelsea, 28. De (rendre v. Bogardus, 26.3. De Ilaber v. Queen of Portugal, 43. Delatield v. Jones, 95. Delany v. Moore, 201. De la Rosa v. Prieto, 122. Delesdernier v. Burton, 76. Dempsey v. Winstanley, 122. Denham v. Brewster, 54. Dennis v. Weti'im, 174, 178. Dennison v. Knox, 82, 83, 120, 187. Dent V. Dunn, 110. I)enton v. Marshall, 48, 46, 50. V. Strong, 165. De Pothonier v. De Mattoa, 57, 187. Dewar v. Carrique, 173, 277. De Winton v. Brecon, 149. De.vs V. Riley, 12, 32, 194, 229, 293. Dick V. Tolhausen, 100. Dickinson v. Bunnell, 173. — V. Shee, 111. Dickson v. Neath & B. R. Co., 190. V. Reuters Tel. Co., 148. V. Swansea Vale R. Co., 120. V. Zizinia, 67. Diggle V. Higgs, 49. Dillaree v. Doyle, 65, 175. Dimes v. Grand Junction Canal Co., 17. Dingley v. Robinson, 149. Dinn v. Blake, 170. Dixon, Ex parte. Re Htnley, 120. V. Clark, 112. V. Lee, 125. V. Snarr, 44, 60, 262. Dobey v. Larkan, 109, 118. Doe d. Clarke v. Thomson, 123, 124. " Greenshields v. Garrow, 175. " Hay V. Hunt, 131. Doe V. Kelly, 126. Doe d. Lemoine v. Raymond, 131. " Lord V. Cmgo, 60. " Miller v. Tiffany, 175. " Park V. Henderson, 131. " V. Pattisson, 129. " V. Phillips, 128. Dolby V. Ih's, 116. Dollery v. Wlialey, 230, 231 . Donnelly v. Stewart, 6, 100, 173, 221.. Doswell V. Impey, 17. Dougall V. Moody, 128. Douglas V. Hutchinson, 82. V. Patrick, 109. Dover V. Childs, 172. Dowdell V. Australian, «feo., Nav. Co., 125, 827. Doyle V. Kaufman, 114. V. Lasher, 116. Drake, Ex parte, 62. Dredge v. Watson, 173. Dresser v. Johns, 100, 148, 199. Drew V. Drew, 169. V. Leburn, 169. Drummond v. Drunimond, 234. Drury, Re, 169. Duberly v. Gunning, 106. Dublin W. & W. ll'y Co. v. Slattery, 104, 105. Duck V. Braddyll, 218. Duddin v. Long, 214. Duggan V. Kitson, 177. Duignan v. Walker, 88. Dulmage, Re, 16. Duncan v. Cashin, 214. Duncombe v. Brighton Club, 138. Dunraore v. Taylor, 119. Dunn V. Irwin, 92. V. Murray, 167. Dunstan v. Norton, 166. Dunston v. Paterson, 87. Dutens v. Robson, 43. Dyce V. Sombre, 17. Dyer v. Best, 60. Early v. Bowman, 116. East Anglian R'y Co. v. Lythgoe, 120. East England Bank Co., Re, 137. Eastern Counties R'y Co. v. Marriage, 99. Eastland v. Burchell, 69. Eastmure r. Laws, 120. Eckstein v. Reynolds, 112. Eddie v. Davidson, 175. Edgar v. Watson, 116. Edgell V. Curling, 127. Edmondb v. Pearson, 124. Edmunds, qui tarn, v. Hoey, 121. Edwards v. G. W. R'y Co., 136, 137. Eggin^ton v. Lichfield, 22. EisdelTv. Coningham, 149. Elgin, Judge of. Re, 48, Elkin V. Baker, 119. Elkington's caee, 162. e TABLE OF CASES CITED OR INTRODUCED. XV 221. . Co., tery, 120. 5| is Flliott V. Sparrow, 40. Finch v. Brook, 110. Kills V. Loftiis Iron Co., 148. v. Miller, 111. V. Sheffield (Jas Co., 60. Findley v. Pedan, 125, 348. V. Watt, 43, 44. Finlayson v. Howard, 216. Elston V. Rose, 46. Finney v. Beeslcy, 128. Kly V. Moule, 138, 341. Fischer v. IJahn, 1-J8, 129, Emanuel v. Bridger, 150, 158. Fisher v. Grace, 127. Emerson v. Brown, 94. Emery v. Barnett, 50. ,r Cll.- uAn V. Mucklow, 57. Fiskcn v. (jordon, 98. Emma Silver Mininjy Co , Re, 125. Fitzgerald v. Johnston, 214. Englebank v. Nixon, 214. Fitz.>simnions v. Mclntyre, 43, 240, 2i')i England v. Cowley, 62. Fleet V. Perrins, 66. Erb V. G. W. R'y Co., fiO. Fleming v. Liviiig.stone, 81. Euphrasia, T'p Clerk of. Re, 48. Fletcher, Ro. 195. European & A. S. S. Co. v. Crosskey, • r n..l...„ 1 1 K 1 .1 1 161). Evans, Ex parte, 46. IF /"^..It \...^*» .4 f\ Inn ir 1? I'lnnrl t fi 1 Flitters v. AU'frey, 62, 81, 172. Florence v. Draysou, 138. V. Jones, 114, 174. V. Judkins, 112. Flower v. Gardner, 327. V. Prosser, 11 9. Flynn v. Robertson, 168. V. Rees, 167. Foord V. Noll, 111. Foot V. Baker, 49. Forbes v. Wells, 129. Eversfield v. Newman, 46, 51. Everton, Overseers of. Ex parte, 46. Ford V. Baynton, 214. Every v. Wheeler, 102. V. Crabb, 48. Ewing V. Thompson, 83. V. Spafford, 121. Eyton V. Littledale, 119, 120. Fordham v. Akers, 51, 74. Forsdike v. Stone. 34, 103, 223. Fair v. Bell, 163. Foster v. Geddes. 3. V. McCrow, 52. v. Glass, 176. Fairnian v. Oakford, 77. v. Hilton, 21». Farley v. Graham, 125. Foster v. Smith, 177. Farquhar v. Toronto, 163. Farr v. Robins, 184, 276. »T ^^i>»-*.»^l .. A 4 Foulger v. Taylor, 218, 220. V. Ward, 136. Fowler v. Perrin. 173. Farrant v. Thompson, 174. v. Vail, 158. Farrel v. Stephens, 129, 131. France v. Campbell, 186. V. O'Neill, 173. V. Gaudet, 62. Farrow v. Wilson, 77. Francis v. Brown, 202. Faviell v. Eastern Counties R'y Co., 165, 168. Frank v. Carson, 181. Fawcett v. Cash, 77. Franklin v. Gream, 26, 121. Fearon v. White, 129. Fraser v. N. Oxford, etc., R'dCo,, 104 Fell V. Whittaker, 147, 230. Frazee v. McFarland, 64. Fenwick v. Laycock, 214, 215. Freeland v. Brown, 140. rr C:nl..«r.1r. i^n .Til Freeman v. Cooke, 160, 175, 189. V. ociimaiz, i^u, Ji I. Ferguson v. Carman, 149, 155. Forgusson v. FyfFe, 137. Ferrer v. Oven, 66, 167. Ferris v. Cox, 76. « 'T'«,.««I, ■% t A French v. Andrade, 120. Field V. Newport, Ac, R'y Co. 112. V. Woods, 121. v. Weir, 165. Fieldhouse v. Croft, 186. Frith V. Donegal, 93. Financial Corporation v. Price, 151. Fromount v. Coupland, 120. Finch V, Boning, 109. Frontenac (County) v. Breden, 69. w m hi &^ 'V V i ^^ m ■ I i ''■li 1.1 1 XVI TABLE OP CASES CITED OR INTRODUCED. Fryer v. Sturt, 328. Gould V. White, 176. Fuller V. Mtickuy, 84. Gower v. Van Dedalzen, 67. V. Prentice, 124, Grace v. Walsh, 79, 80. Fulton V. Jiuiies, 49. Graham v. McArthur, 27. Furnival v. launders, 45. V TS'lrK'crnfifi 17^ ■WT C«^/inf lit AH AO OK Giiffney v. Kilien, 168. V. T. G. & B. R. Co., 60. Galiaii V. Latilte, 17. Grand June. Canal Co. v. Dimes, 17. Gulbraith v. Fortune, 219. Grant v. Eastwood, 166, 167, 169, 170. Gallaylu-r v. Hathie, 82. V. McDonald, 158. Galioivay v. Keyworth, 328. V. McDonell, 151, 155, 163. Gamble v. Russell, 174. Granthan v. Bi.-ihop, 124. Games, Ex i)arte, 188. Grass v, Allan, 43, 44. Garden v. Bruce, 158. Gray v. McCarty, 201. .T ^^l.i^^lllT^.11 1 OO V. Wilson, 166. Great N., Ac., Com. v. Inett,45, 51,179. Gardiner v. Jewson, 182. Garforth v. Cairns, 243. Great N. R. Co. v. Mossop, 105, 139. Garner v. Coleman, 17- Great W. R. Co., Ex parte, 82. Garnet v. Bradley, 168. Garnet, &c.. Mining Co. v. Su Garrard v. Gubilei, 263. V rliiidwirh 7-1 "18 tton, 118. .. Ai ; u .^» 1 an Green v. Beach, 86. Garrick v. Jones, 120. V. Brown, 214. Garton v. G. W. Railway Co. , 83, 94. V. Swann, 173. Gates V. Smith, 177. Greensill, Re, 100, 149, 150. Gay V. Matthews, 228. Gretton v. Mees, 111. Georgian Bay Lumber Co. v . Thomp- Greville v. Stultz, 129. son, 121. Griffith V. Hodges, 111. Geraghty v. Sharkey, 99. V Tiivliir "fi ''9ft Gibbon v. Budd, 122. Griffiths V. Grantham (Mu.), 14, Gibbs V. Cruikshank, 5, 148, 172, 249. Grill V. Gen. Iron S. C. Co., 131. V. Fremont, 137. Grimbly v. Aykroyd, 79. Gidley v. Falmerston, 1 50. Griswoid v. B. B. ife G. R. Co., 99, 149. Gilbert v. Gilbert, 79, 80. Grover, tfec , Sew. M. Co. v. Webster V. Gooderham, 127, 128. Gilciirist v. Conger, 74. Gunter v. M'Tear, 129. Gilding v. Eyre, 173. Gurr V. Cuthbert, 61. Giles V. Hemming, 94. Gutteridge v. Smith, 104, Gilmour v. Buck, 75. Gwynne v. Rees, 148. Girdlestone v. Brighton A. Co., 102, 172, 178. Haacke v. Markham (Municipality), 1 f>. Gladstone v. Padwick, 174, 188. Haggart v. Kernahan, 74. Gladweil v. Blake, 228. Haigh V. Ousey, 122. Glascott V. Day, 110. Haines v. East India Co., 197, Gleason v. Knapp, 64. Haldan v. Beatty, 217, ir ^Villi-imn ITi -i' Smith 169 Glen V. G. T. Railway Co., 168. Haldimand v, Martin, 97, 344. Godwin v. Francis, 59. Hale V. Bates, 66. Goggs V. Iluntingtower, 98. Hall V. Badden, 219. Gold V. Turner, 45, 84. V. Curtain, 46, 80. Goldinj- V. Bellnap, 75. V. Goslee, 175, Goldsniid v. Hampden, 49. V. Hill, 234, Golloghy V. G aham, 173. V. Kissock, 215, Goodland v. Blewith, 109. V. Pritchett, 150. Gordon v. Bonter, 161. Hallet V. Mears, 124, Go-iset V. Howard, 42. Halley, The, 56. Halliday v. Holgate, 62. Gough V. Miller, 124, 126. <Jould V. Close, 57, 92. Ham V. Lasher, 328. i r -"?! TABLE OF CASES CITED OR INTRODUCED. XVll 17. , 170. ,179, 139. ,24b. 149. ster. , If.. J. .w^^ .^^;? ». ^■ f i I Hambidge v. De 1ft Crouet;, 171 Hamilton v. Bonek, 176. V. Dennis, 3. Hamilton & N. W. Railway Co., Re, 48. Hammond v. McLay, 22. V. Stewart, 124, Hampden v. Walsh, 49. Hand v. Hall. 218. Uandley v. Franchi, 201. Hardcastle v. Netherwood, 118. Harding v. Barratt, 151. V. Davis, 110. V. Wickham, lf.8. Hardingham v. Allen, 112. Hardy v. Ryle, 267. I Fare v. Fleay, 167. V. Milne, 169. llargreaves v. Hayes, 83. V. Meyers, 75, 82. Harmer v. Cornelius, 78. V. Cowan, 216. Harrington v. Edison, 167. V. Ramsay, 43. Harris v. Andrews, 103. V. Jens, 40. V. Qiiine, 158, 169. V. Harris, 348. Harrison v. Barry, 218. V. Douglas, 5t, 116. V. Paynter, 186. ^v. Seymour, 27, V. Smith, 101. V. Wright, 46. Hart V, Denny, 1 16. V. Duke, 169. V. Reynolds, 176, 219. V. Ruttan, 201. Hartland v. Gen. Ex. Bank, 78, 147. Hartley v. Hearns, 49. Hastings v. Thorley, 112. Hatton V. Fish, 104. Hawkins, Re, 18. Haydon v. Crawford, 175. Hayes v. Keene, 175, 261. Hayley v. Grant, 106. Hayman v. Rugby School (Govs.), 17. Hay thorn v. Bush, 214. Hay ward v. Hague, 113. Hazlitt V. Hall, 174. Healy V. Young, 129. Heath v, Brewer, 26. V. Long, 85. V, White, 94. Helford v. Algar, 76. Heilbutt V. Hickson, 67. Keley v. Cousins, 74, 75, 249. ' Help V. Lucas, 83. Hemming v. Batchelor, 274. Heinsworth v. Brian, 168. Henchett v. Kimpson, 218. Henderson v. Dickson, 76, 184, 193. V. Sills, 74. V. Sq ire, 147. V. White, 263 llennell v. Fairland. 120, 123. Henricks v. Ilenricks, 78. Henwood v. Oliver, 112. Herbert v. Piggott, 67. Hermann v. Seneschal, 26, 230. Ilernnman v. Smith, 85. Herr V. Douglass, 189. Hertford Union v. Kiinpton, 51. Hesketh v. Fuwcett, 108. Hesse v. B. B. & G. R Co , 150, 168. Hewitt v. Cory, 117. Hewston v. Phillips, 52. Heyland v. Scott, 131. Heymann, Ex parte, 228. Hickey v. Renfrew, 78. Hicks, Re, 194. Higginbotham v. Moore, 45, 80, 206. Higgins v. Brady, 199, 200, 201. V. Sargent, 136. Higginson v. Simpson, 49. Iliggs V. Assam Tea Co., 120. Higham v. Badderly, 111. Hilberry v. Hatton, 60. Hill, Re, 45. V. Fox, 49, 50. v. Smith, 119. v. South S. R'y Co., 137. Hiortt V. Bott, 62. Hirsch v. Coates, 149, 151, 158, 163. Hitchman v. Stewart, 28. Hobson V. Thelluson, 148, 174. Ilochster v. De la Tour, 78. Hodges V. Bennett, 348. . V. Cobb, 131. Hodgson V. Gascoigne, 218, V. Graham, 45, 51. V. Towning, 195. Hodsoll V. Baxter, loO, Hoey V. McFarlaric, 16, 18, 19, 30. Hogg V. Skeen, 62. Holcomb V. Hamilton, 115. Holden v. Ballantyne, 263. Holland V. Phillips, 111. HoUier v. Laurie, 216. HoUis V. Marshall, 61. Holman v. Stephens, 110. Holme V. Guy, 12. Holmes v. Kerrison, 169. V. Kidd, 119. V. Reeve, 82. Wi ■U'M Vt T •■V,' •T'''l m ti t'A F ,. I W,,;i i^'i Mil I'll '■ . it! I. ; i' 'r lit XVIU TABLE OF CASES CITED OR INTRODUCED. Holmes v. Russell, 94. V. Siinrnons, 132. -- V. Tutton, 153. Jlolt, Re, 124, 143. Ro Frost, 214. Holton V. Guntrip, 214. Jlood V. Cronkite, 2(.iO, 269. Hooper v. Christoe, 1 0.5. Hoover v. Ziivitz, 75. Hope V. Graves, 184, 277. Hopkins V. Abbott, 187. V. Tanqueray, 66. V. Ware, 162. Hopper, Re, 166, 168, 169. . V. Warburton, 45. Horsley v. Cox, J50, 151, 154. Hoskius V. Knight, 218. Hoatrawser v. Robinson, 56, 92, Hough V. Kdwards, 149. Houklen v. Srnitli, 16, 42, 194. House V. House, 1 59. How V. Greek, 57. Howard v. Crowther, 59. V. Lovegrove, 147. V. Sheward, 68. Howell V. Coupland, 67. V. Dominion Oil, (fee, Co., 121. V. McFarland, 92. Howes V. Barber, 115, 124, 172, 327. Howkins v. Baldwin, 129. Howland v. Jennings, 137. Hudson V. Tooth, 142, 194. Huff V. Cameron, 171. Uuffer V. Allen, 172. Hughes v. C. P. L. & S. S., 78. V. Snure, 121. V. Towers, 219. Hume V. Peploe, 108. Humphries v. Cousins, 61. Huno;erford M. Co. v. City S. Co., 52. Hunt V. G. N. Railway Co., 52. V. N. S. Railway Co , 44, 53. V. Round, 76. Hunter v. G. T. Railway Co., 83. Huron (Corporation) v. Armstrong, 24. Huret v. Sheldon, 214. Hutchinson v. Sydney, 118. Hutt V. Gillelaud, 76. v. Keith, 75. Huttman v. Boulnois, 76. Hutton V. Ward, 136. Huxhara v. Wheeler, 142. lanson v. Paxton, 98. Iggulden V. Terson, 255. Imperial Gas Co. v. London Gas Co., 168. Imperial Land Co. of Marseilles, Re. 120. Inglis v. Wellington Hotel Co., lOO. 138. Innes v. East India Co., 148. Ireland, Bank of, v. Perry, 214. Irving, Re, Ex parte Brett, 158. V. Veitch, 159. Irwin v. Mariposa (Corporation), 25. v. Maughan, 1U4. Isaac v.»Spil8bury, 214. V. Wyld, 240 Isaacs V. Green, 57. Isberg V. Bowden, 118. Israel v. Benjamin, 116. Jackson v. Beaumont, 42, 46, 86, ~v. Grimley, 86. — V. Jacob, 110. -- v. Randall, 202. — V. Wooley, 159. Jacobs, Re, 125, 126, 192. Jacorab v. Henry, 97, 184, 277. Jacques Cartier (La Banque) Strachan, 92. James v. Crane, 169. v. S. W. R'y Co., 46. Jameson v. Schonswar, 88. Jaraieson v. Sherwood, 49. Jardiue v. Smith, 141, 146. Jauralde v. Parker, 149. Jeckyll v. Wade, 168. Jeff Davis, The, Re, 149. Jefferies v. G. W. R'y Co., 62. Jeffries v. Evans, 122. JeflFs V. Day, 120, 187. Jenkyns v. Brown, 110. Jenner v. Morris, 118. Jennings v. Major, 111, 112. Jessop V. Crawley, 216. V. Lutwyche, 49. Jewel V. Stead, 88. Jewell v. Christie, 167. v. Hill, 139. John V. Jenkins, 113. Johnson v. Credit Lyonnais Co., 160. V. Diamond, 99, 148, 150. V. Evans, 98. V. Holdsworth, 57. V. Lakeman, 140. V. Leigh, 196. V. Parke, 75, V. Prov. In. Co., 106. V. Stear, 62. V. Wardle. 106. Johnston v. Hastie, 60. McKenna, 174, 276. '■■? TABLE OF CASES CITED OR INTRODUCED. XIX Re, lOO, V. Joliffe V. Wallasey Local Board, 23U, Jolly V. Baines, 45. Jones, Re, 49. Re Ex parte Kelly, 162, 160. V. Bowden, 67. V. Brown, 76. V. Currey, 53. V. Gibbons, 69. V. Harris, 82. V. Herbert, 57. V. Jones, 184. V. Just, 67. V. Moore, 119. V. Owen, 44. V. Reid, 168, V. Thompson, 100, 148, 199. Joselyne, E.v- parte, In re Watt, 150. Joseph V. Henry, 44. Josling V. Kingsford, 67. Joule V. Taylor, 220. Juraulde v. Parker, 180. Kalar v. Cornwall, 228. Kay V. I'anchiman, 115. Kean v. Stednian, 138, 217. Keeua v. O'Hara, 181, Keene v. Keene, 136. Kehoe v. Brown, 184, 185. Kelly V. Gafney, 49. Kelner v. Baxter, 58. Kemp V. Finden, 28. V. Neville, 17. V. Owen, 43, 45, 85. Kenedy v. Panama, 68. V. Patterson, 60, 177. Kenny v. May, 205. Kent V. Tomkinson, 150. Kerford v; Mondel, 61. Kerkin v. Kerkin, 43. Kernot v. Bailey, 48. Kero V. Powell, 26, 180. Kerr's Policy, Re, 136. Kerr v. Cornell, 83. V. Fullarton, 26, 158. V. G. T. R. Co., 107. V. Haynes, 87. V. Kinsey, 177. V. Stripp, 54. Keynsham Blue Lias Lime Co. v. Baker, 88. Kidd V. O'Connor, 193. V. Walker, 115. Killens v. Street, 95. Kilshan v. Jukes, 98. Kimpton v. L. <fe N. W. Ry. Co., 126. V. 'VVilley, 43, 44, 79. King V. England, 189. King V. Hoare, 97. V. Macdonald, 177. V. Pinsuneault, 165, V. Smith, 173. Kinghorn v. Kingston, 269. Kingsmill v. Bank of U. C, 121. ^ V. Millard, 89. Kingston (city) v. Brown, 95. V Shaw, 218. Election Re, 179. Kinning, Ex parte, 193, 194. V. Buchanan, 193. Kirby v. Hall, 121. Kirk V. Dolby, 261. Kirkendall v. Thomas, 75. Kirtonv. Braithwaite, 1U9, 116. Kitson V. llardwick, 67, 91. Klein v. Klein, 139. Knight V. Burton, 167. V. Cambers, 49. V. Edgerton, 147. Knowles v. Hf)lden, 44. Korman v. Tookey, 32. Kraemerv. Glass, 21, 199. Kramer v. Waymark, 274. Krause v. Arnold, 110, Ladouceur v. Salter, 23, 37, 74, 87, 96. Laing v, Chatham, 119, Lake v. Butler. 88. V. Prince Edward Co., 15. Lamb v. Sutherland 92, 158. Lamont v. Crook, 125. Lanark, <fec., Plank R. Co. v. Bothwell, 207. Lang, Ex parte, 173. Langford v. Kirkpatrick, 230. Langridge v. Campbell, 168. Lane v. Bagshaw, 129. Lanman v. Audley, 114. La Pointe v. G. T. R. Co., 23. Latham v. Spedding, 44, 50. Law V. Garrett, 169. V. Thompson, 118. Lawford v. Partridge, 45, 51, 179. Lawrence v. Bristol & N. S. R. Co., 168. V. Hitch, 52. V. Ingmire, 848. Lawrenson v. Hill, 194. Laws V. Bott, 57. Lawson, Re, 173. V. Hutchinson, 166, 169, 170. V. Laidlaw, 54. Laycock v. Pickles, 240. V. TuflFneU, 119. Lea V. Rossi, 215. Leader, The, 16Q. i: i.T - K'.;J ^* *" .'I 'ii ft -i if I if ! ''' " :if 1 Hi i ! Ii t JH I ■ J'! ■''if XX TABLE OF CAFES CITED OR INTRODUCED. Leaf V. Tuton, 122. Leathcrdale v. Swecpatone, 110. Lechoniore v. HawkiriH, 1 19. Lococq V. S. K. R. Co., 133. Lee V. BuUen, 111). V. Howes, 175, 183. V. Lester, 118. V. ilorrow, 184,203. V. ll.xplejee, 08. V. Wil.ri'ol, 159. Lees, Ex ynvtc, and Judge of Carleton, 144, '222. Lees V. Carleton (County), 8. Leete V. Hart, 2B, 230. Loggo V. Tucker, 55 Le Grew v. Cooke, 1 1 3. Lehuin v. Philpot, 220. Leigh V. Hurd, 88. Leir v. Coyle, 40. Leith V. Willis, 49. Le Loir v. Bristow, 120. Leman v. Fletcher, 122. V. Housely, 122. Lemon v. Lemon, 192. Leslie v. C. C. R. Co., 62, V. Emmons, 18, 139. Lester v. Garland, 19. Lewis V. Teale, 74, 75. Levy V. Champneys, 215. V. Wilson, 101. Lexden, Ac, Union v. Southgate, 43. Lievesley v. Gilmore, 167. Light V. Lyons, 79, 80. Lilley v. Elwin, 77. V. Harvey, 50, 179. Limpus V. L. Omnibus Co., 60. Lincoln Election, Re, 234. Linden v. Buchanan, 48, 121, 179. Lines v. Grange, 176. Lintott, Ex parte, 137. Lipscombe V. Holmes, 116. Lisburne v. Davies, 89. Lister, Re, 49. V. Ferryman, 211. Liverpool A. L. Ass. v. Fairhurst, 60. Lizars v. Dawson, 169. Llado V. Morgan, 96, 111, 118. Lloyd V. Jones, 50, 52. V. Key, 129. V. Walkey, 116. Lockart V. Gray, 151, 186,218, 220. Locke V. McConkey, 219, 220. Lockridge v. Lacey, 111, 113. Lodge V. Thompson, 131. London v. Roffey, 114. London (Mayor) v. Cox, 48. Londoa <b N. W , B. Co. v. Lindsay, 1*7. London Tramways Co. v. Bailey, 65. Long V. Long, 110. V. Monck, 62. Longbottom v, Longbottom, 52. Lord V. Price, 62. Lossing V. Jennings, 177. LoHcks V. McSloy, 175. Lough V. Coleman, 26, 280. Love V. Culham, 75. Lovekin v. Podger, 61. Lowe V. Blakeraore, 150. Lucas V. Elliott, 63. V. Tarleton, 230. Luckie v. Bushby, 118. Lumley v. Gyo, 129. V. Musgrave, 137. Lutscher v. Comptoir d'Escompte de Paris, 158. Lyddon v. Moss, 65. Lynch v. O'Hara, 27. V. Wilson, 121, 140. Lyon V. Weldon, 205. Lyons v. Golding 228. Lyster v. Boulton, 76. M'Cance v. L. & N.W. R. Co., 116. M'Cann v. Waterloo Mat. F. Ins. Co., 116. M'Dougall V. Robertson, 169. M'Fee, Ex parte, 46, 247, 248. M'Gillivray v. Simpson, 119. M'Kinnell v. Robinson, 49. Maber v. Maber, 169. Macara v. Morrish, 45, 52. Macaulay V. Rumball, 159. Macbeath v. Iluldimand, 160. Macbeth v. Ashley, 165. Macdonald v. Macdonald, 87. Macdougall v. Paterson, 87, 234. Macfarlane v. Taylor, 67. Mackay v. Goodson, 198. Mackenzie v. Davidson, 124. Mackereth v. Glas^^ow <& S. W. R. Co., 94. Macklin v. Kerr, 66. Maclellan v. Howard, 113. Macrea v. Clarke, 27, 148, 197, 226. Magrath v. Todd, 184, 203. Mair v. Anderson, 128. V. Culy, 328. Malmesbury R*y Co. v. Budd, 169. Manley v. Anderson, 166. Mann y. Harbord, 183. Manning v. Lunn, 112. Mant V. Smith, 122. Mardall v. Thellusson, 118. Margrett v. Gregory, 28. TABLE OF CASES CITKD OK INTRODUCED. XXI J. 66. ipte de 116. aa. Co., R. Co., 226. 69. Marks V. Lalieo. '21H. McDowell V. McDowell, 174. 186. Miirpica V. Hartley, M9. McKdwards v. McLean, 215. Miirtin v, Andrews, 6t», McHdwards v. I'almer, 215. V. (;lnrk, 118. Mc(il(!e V. Bainos, 214. Mftrfldtn v. (Joodc, 112. V B'lird I'i't Mcdiiverin v. Mcl'ausland 177. Marsh v. CoiKiiiust, 87. V. Turnbull, 120. V. Dewes, 51. Mc(;rath v. Fox, 104. McCJregor v. (Juuliii, 135, 1:58. Marshall v. Jatniesori. 69, 114. Mc(iufHn V. Cayiey, 78. Mcintosh V Brill 63 - V. Y. N. <t H. il'v Co.. 55. V. Jarvis, 81. Marston v. Allon, 85. V. Mclnto.sli, 214. Marten v. Bnirnell, 178. Mclntyre v. Stata, 176. Martin v. Andrews, 121. Mc'.val V. Fee. 138. V. G. E. U'y Co., 65 MoK'-.y V. Grenley. 160. Mason V. Morijftn, 8:i. V. Mossop, OO, 122. V. Mugseridi^e, l.Tli. V M'tflwll H") .. ^r.iU 1 1 o McKelvey v. McLean, 75. Ma.S3ey v. Burton, 46. McKen/ie v. Harris, 91, 9.°., 100. V. Siaden, 15, TO!], 22.S. V. Keene, 8a, 138. Matheson v. Kelly, 96, 111, Ui^. Matthews, Ex parte. Re Angel, 173. Junction Railway Co., 158. Matthews v. Livesley, 328. V. Stone, 1('2. V rtvfin HI ^i(\ '*fi^ McKone v. Wood, «(), Maughan v. Blake, 263. McLachlan v. Blackburn, 189. Maiinsell v Ainsworth, 124. McLaren v. Baxter, 57. Maw V. Ulyatt, 140. V. Sudwortli, 150. May V. Bui'dett, 61. McLean v. Jones, 98. Mayer v. Farmer, llO. V Mf'rclliin l^** .. A4..1 1 A 4 1 OQ 1 C « Mayhew v, Crickett, 28. McLcod V. Fortune, 177. V. Herriek, 148. Mayo Count}', Re, 82. ■"■ ' '— T, IwliiiliLt'f iOl, McMortin v. Ilurlburt, 178, 230. McAnnany v. Tickell, 119. MoArthur v. Cool, 26, 216. McMaster v. King, 173. McArthur v. Smith, 88. McMurtry v. Munro, 45. McCance v. Batcman, 26. McNab V. Wagstaff, 104, 105. McCandy v. Tuer, 76. McNair v. Sheldon, 128. McCleverty v. Massie. 177. McNaughton v. Webster, 148, 151, 175. McCoUum V. Kerr, 248. 186. McCormick v. Park, 149. McPhadden v. Bacon, 201;. McCrae v. Waterloo Mutual Fire In- McPhatter v. Leslie, 202, 230. surance Co., 100, 114, 115, 138, McPhee v. Wilson. 66. 139, 188, 209. McPherson v. Forrester, 6, 100, 1 73, 2 19, MoCulloch V. Gore Mutual Fire In- McRae v. Robins, 45, 80, 81. surance Co., 127. McRoberts v. Hamilton, 345. McCuUoch V. Judge of Le«ds and Gren- McWhirter v. Bongard, 89. ville, 48. Meakin v. Swanson. 54. McCuUoch V. White, 167. Medwin, Ex parte, 17. McDermott v. Ireson, 67. Mein v. Hall, 176. McDonald v. Burton, 101. Mellish V. B B «fe G. R'y Co., 151. .. \irsll.-#^n 1 n 1 V. v^aiijciuil, lOO. Meloche v. Reaume, 75. «- 114^1^ \A low Meneilly v. McKenzie, 176. McDongall V. Waddell, 174. Mercer v. Graves, 149, 179. McOowall V. Plollister 148 ** C!4-nnU..H.. rtirt ■•^ ^^ ■ *.* ■ ■ *• ■ ■ ' § A ^fc x^ A ft ■ u V w If A ^K ^J « m I. ^i H.'.l ■''■'- w 'i ' * • ■ • m t^.r. xxii TAnr-E OK CASKS CITKD Oil INTllODUCED. :iii ■ ^'•hitil 'If' It ;i'l ' ; >'\\ 1 '' '5 !I : MHrclianIs' Hank v. Siiiiro, 119. Moi'cliiiiit's Suit Co,, V. Aniiituge, 137. Mcrlicli V. Clillord, 44. Moriicr V. Kltiii, 'i'-i. Mt-rrill v. licaly, I'-M. Mcrrvwi'ivtlicr v. Nixon, ft9. Mcyi'r V. Dresser, ll'.t, 121. McyerliDtr V. l"'rcclilicli, 159. Meyers v. Haker, 75, H'l. — '■ V. iV -hm, 74, 242. V. W .iiiiaeoU, 204. McyerHtoin v. 15arl)er, 75. Micliie V. Reynold.s, l;i5, 178. Middlefield V. IJould, 25, :{2. Middleton v. Krewer, 1(18. V. Pollock, 118. Miles V. Harris, ;i44. Milji^atc V. Kibble, 61. Miller V. I}. M Ins. Aas., 182. V. Corbott, 26. V. Ilaiiiilton, 104, V. My nil, 149. V. Nolan, 214 V. Tunis, 2;j, 24. Millignn v. G. T. R'y Co., IGl. Mills V. Scott, 262. V. Wellbank, 129. Milner, Ex parte, 48. Milson V. Day, 123, Milvrtiii V. Mather, 118. Minor V. L. & N. W. R'y Co., 87. Miron v. McCabe, 46, 80. Mitchell V. Foster, 92. V. Ilender, 87. V. Kinfj, 111, 112. . V. Lee, 1 60. V. MulhoUand, 138. Mody V. Gregson, 67. Mcffrtt V. Foley, 119. Moffatt V. Barnard, 197. V. Parsons, 109. V. Prentice, 327. Mondel v. Steel, 120, 128. Montaj^ue v. Harrison, 125. Moiitefiore v. Lloyd, 28. Montgomery v. Boucher, 137. Montreal (Bank of) v. Douglas, 171. V. McTavish,186. . V. Munro,174,177 V.Taylor, 182. v.Yarrington,161 Moone v. Rose, 196. Moor V. Roberts, 114. Moore v, Andrews, 121. V. Gidley, 201, 204, 280. V. McKinnon, 121, V. Met. Sew. Co., 118, Mnoro V, Vonijliton, 137. Mordon v. Widditield, 168. Moi'diKi V. rainier, Kiti. Morgan, Hx parte, 141, 146. V. Knight, 57. V. Leiich, 231. V. Uuvey, rtf). V. U ;\vlands, 159. ~ V. Tarte, Ki,'). Morison v. Ilarniei-, 328. Morley v. .Xttenborongh, 61, V. Inglis, 1 18. Morrell V. Cowan, (16. Morris v. Cameron, 63. V. Coles, '.)4. Mori'ison v. Mardey, 93. Mortiniore v. Wright, .")9. V. Cragg, 345, Moullet V. Cole, 88, 344. Mountnoy v. Collier, 50 Mowatt V. Londesborougli, 137. Miickle V. Ludlow, 131. Muckleton v. Smith, 214. Mulcahy v. The Queen, 144. Mullett V. Hunt, 123, 126. Mulliner v. Florence, 61. Mulvaney v. Hopkins, 75. Mungean v. Wlieatley, 76, 82. Munsie v. McKinley, 45, 51, 141, 142. 217. Murray v. Simpson, 149. Meyers v. L. & S. W. R. Co., 344. V. Wonnacott, 14. Nagla Gilhnan v. Christopher, 191. Kash V. Dickenson, 174. V. Hodgson, 159. V, Lucas, 229. Natal In. Co., Re, 189. Nathans v. Giles, 150. Nazer v. Wade, 114. Na/.ionale (La Banca) v. Hamburger, 262. Neale v. Ellis, 79. V. Withrow, 132. Neate v. Harding, 62. Nedley v. B. B. «fe G. R. Co., 150, 158. Neighbour v. Brown, 52. Neill V. McMillan, 26, 230, 231, Neilson v. Jarvia, 22, 164, 182, 183, 261, 342. Nelson, Re, 328. V. Baby, 27. V. Couch, 81. Ness V. Saltfleet (Mun.), 15. Newby v. Colt's P. F. A.. Co., 94. Newcomb v. De Rocs, 86. I.^i'i! ■■J i i i ■I I*; TAHl-R OF CASKS ClTEP OR INTBODUCRD. XXIll !K«wman v. Rook, 168. Nfwl.iin's cixM', 147. Nciwlon V. i;hii|illn, 107, V. l-'orstcr, 119. V. llurliinil, r24. Nia>,'iira District, .luilgc of. Re, 17. 82. — _.._ F. S. H. Co. V. fianincr, 136. Niohall V. CBrtwri';lit, 171. NiciiollH V. Cuiiiminj,', 31, 127. V. NichoUs, 139. V. Lnndy, 4fi, 51, 179. Niclioli-on V, IJro'okv, 107. V. (Junn, 173. Nicol V. Kwin, Hit. 202. Nohro, Kx |mrU!, 89. Noru-11 V. ilulU'tt, ino. Norris v. ('ari'iny;t(tii, 43. Nortlicrn R. ('(s. v. Ivister. 93. Nortlivitnbcrliind and Durham, .hulgc of, Uc, 45, 80. North wood v. Rcniiie, 147. NorUiti V. F-ll-iiii, 109, 159. V. Mciljournc, 129. V. Salisbury (Town Clerk), 9;^ 211. Norway, The. 1 1 2. Nowlan v. Ablctt, 77. Noxon V. Holmt's, 84. Nugent V. Chambers, 82. O'Brien v Welsh, 82. O'Caliusjhan v. Cowan, 214, 215. O'Connor v. Clarke, 137. V. McNamee, 5fi, 57, 92. O'Donohoe v. Wilson, 214 O'Donohue v. Wiley, 86. O'Neill, Ex parte, 194, 196, V. Leight, 78. Oakea v. Morgan, 104. OfFay V. Offay, 247. Ogilvie V. McRory, 262. Ogle V. Knipe, 187. Oldham B. & M. Co. v. Healcl, 87. Oliphant v. Leslie, 172, 217, 230. Ontario Bank v. Kirby, 183. (Corp'n of) V. Paxton, 27, 28. (Prov. of) V. Quebec, 160. S. Co, V. Merchants' a Co,, 4. 201. Oram v. Brearey, 43. Orme v, Galloway, 136. Ormrod v. Iluth, 67. Osborne v. Gillett, 62, Osgood V. Nelson, 22, 224. Ostler V. Bower, 214. Otis V. Rossin, 85. Oulds V. Harrison, 119. Onthwaite v. Hudson, 105, 142 Ovi'us V. iiiill, 175. Owfu V. WilkitiKon, 1 19. Owens V. Bieeie, 0. Pacavid v. McEwnn, 75. Page V. CowaHJce Hdnljoe, 62. Talk V. Kcnney, 'IW, 231. I'aliiier v. Haker, 173. V. Korsytli, S3. • V. McLennan. 60. I'ardco v. Lloyd, ICC. I'ardow v. Webb, 1 20. I'arkcT V. Bristol <fe E. R'y Co., 82. V. Croie. «0. V. GoRrtiige, 27. V. Molvpima, 148- V. Rolicrts, 171. V. Sniitli, 137. Parkiii.son v. Lee, ti('>. Parks V. Davis, 16, 23, 25, 4",. Par.sons v. Alexander, 49, 271 V. Crabb, 123. Part on v. Williams, 228. Partridge v. McLitoBh, 175. Passmore v. Harris, 131. Pater, Ex jtarte, 222. 223. Patcrson v. Todd, 1S8. Paton V. Schram, 20?. Patterson v. Fidler, 75. 182. V. McCarthy, 173. V. Scott, 78. Peachey v. Rowland, 60. Peacock v. Dickerson, 111. V. The Queen, 51, 179. Pears v. Wilson, 44, 52. Pearse v. Rogers, 144. Pearson v. Ruttan, 26, 99, 228, 230. Peck V. McDougall, 189, 261. ■ V. Peterborough, 48. Pedgrift v. Chevallier, 122. Pedley v. Davis, 194, 228. Pegg V. Nasmith. 165. v. Plank, 118. Peirse v. Bowles, 113. Pell V. Daulwny, 124. Penny v. Brice, 267. Pendlebury v. Walker, 28. Pepercorn v. Hauffman, 228. Perkins B. L. M. Co., Re, 181. Perlet v. Perlet, 76. Perren v. Monmouthshire R'y, <fec.,Co., 116. Perrin v. Bowes, 178. Perry v. Gibson, 125. Peters v. Beer, 181. Petit V. Ambrose, 98. Ti '*, ■♦I A» ,.] m ■1' ■ rC>-' ' '>'l V^:-l • .'if XJCIV TABLE OF CASES CITED OR INTUODUCED. ■' >',l 11. I'ttrc V. Duncombe, 28, 1S7. Putnam v. Price, 202, IVMicheii V. Lamb, lfi7, 168, 170. Pyke, Ex parte, 49. l'uwtrL'83 V. Harvey, 46. I'liillipa V. Foxall, 77. Qunckenbush v. Snyder, 201. IMiillpotta V. Clifton, 112. Quincey v. Sharpo, 169. Phipps V. Ingram, 168, 169. I'ickering v. Ellis, 78. Ramsay, Re, 223. I'iorce v. Fothergill, 137. Randall v. Newson, 67. I'itjeon V. Bruce, 98. Randegger v. Holmes, 168. I'igfrotfc V. IJirtlcL., 202. Randolph, Re, 98. IMgot V. Cadman, 122. V. Thompson, 169. Pigrim v. KnatchbuU, 87. Rapelje v. Finch, 209. Pillow V. Roberts, H. Rastall V. Atty-General, 24. Pimm V. Grevill, IIB. Ratcliffe v. Hall, 32S. Pirie v. Iron, 128. IMicher v. King, 124 .. iv;.,..u Ko Ravenscroft V. Wi.se, 1!6. Pitman v. Woodbury, 57. Rnwdon (Corp'n) v. Ward, 28. Polak V. Everett, 26, 27, 75. Rawatorne v. Gandell, 57, 138. I'olgluss V. Oliver, 110. Read v. Goldring, 109. Pollard, Re, 127, 165, 223. v. Wedge, 44, 80. Pomeroy v. Wilson, 35. Redhead v Mid. R'y Co., 147. Ponsford v. O'Connor, 130. Redmond v. Redmond, 78. I'ontifex v, M. ll'y Co., 55, 62. Redpath v. Williams, 93. Poole V. Gould, 95, 124. Reed v. Fairless, 124. V. Poole, 159. Reedie v. L. A N. W. R'y Co., 60. V. Tumbridge, 109. Rees v. Atty-General, 328. Portman v. Patterson, 52. v. Morgan, 249. Pott v. Clegg, 159. V. Waters, 167. Potter v. Carroll, 202. v. Watts, 118. V. Knapp, 166, 169. Reford v. McDonald, 131. v. Pickle, 101, 171, 269, Regan v. McGreevy, 76, 194. V. Rankin, 133. R. V. Aberdare Canal Co., 92. Polts V. Leask, 98. — V. AH Saints, &c., 42. Poucher v. Treahey, 66 — V. Ashton, 49. Poulton v. L. & S. W. R'y Co., 60. — V. Bannerman, 348. Pousset V. Lambton (County), 15, 340. — V. Benson, 149. Powley V. Whitehead, 45, 51, 179. — V. Black, 225. Pozzi V. Shipton, 56. — V. Brent, 35. Preston v. Wilmot, 26, 180. — V. Buchanan, 145. Price, Re, 150. — V. Br od hurst, 61. V. Bailey, 129. — V. Cambridge (Recorder) 17. V. Harwood, 239. — V. Chantrell, 82. V. Heviritt, 60, — V. Cheshire (Justices) 22. V. Messenger, 228. — V. Cheshire Lines Com., 31, 103, 141. V. Thomas. 94. — V. Collins, 202. Prichard v. Nelson, 118, — V. Cummings, 200. Pridee v. Cooper, 95. — V. Davidson, 178, 200. Prince v. Lewis, 182. — V. Davis, 35. v. Sarao, 133. — v. D'Eon, 106. Prior v. Hembrow, 169. — v. Doty, 102, 138,215,217. Proctor V, Jarvis, ^74, — V. Ellis, 199, 211. Proudfoot V. Harley, 101. — V. Everett, B2. Prov. Ins. Co. of Canada v. Shaw, 96. — v. Fenn, 125. Prudhomine v. Lazure, 82. — V. Fletcher, 32, 48. 179. Pryor v. West Ham. L. Board, 264. — V. Frost, 144. Purdy, Ex parte, 194. — V. Gamble, 76. Purser v. Bradburn, 51. — V. Gilberdyke, 83. I TABLE OF CASES CITED OR INTRODUCED. XXV R. V — V V — V, — V V, - V, — V — V — V V V — V — V. V. - V, - V, - V, - V, - V - V, - V, - V, - V, - V. - V. - V. - V. - V. - V. - V. - V. - V. - V. ■ V. - V. • V. ■ V. V, - V - V. V. ■ V. • V. V. V. V. V. V. V. V. V. (Jould, 25. 184. (t. W. R'y Co., U, 106. (Jriigorv, 146. Iliimnioiid. 86. Ilaiiilisliiro (Justices), 52. Harden, 50. lltirvev. .S8. llftlliiii,', 42. Hill, 11. .IdliMson, 200. ICi'iilini^, 40. Kt'iiyon, 83. Lcciiiiiiy;, '28. lA'ti'oy, 223. lieomiiisliT, 124. L. C. & D. R. Co., 12, 30. Mnrsdcn, 224. (ox rcl l-'larmgan) v. McMaliou,29. .Meyer, 17. Murray, 14, 106. Newboroup;!!, 82. Nicliol, 207. North Curry, 23. Oxford (V. C), 194. Pah Mah Cah, 126. Pawlett. 234. Pearcy, 318. Poor Law Board, 78. Potter, 18(5. Price, 15. Rand, 17. Riail, 83. Richards. 48, 247, 248. Rowland, 12, 31, 32. i:;5, 340. Salop (Justices), 19, 28. Savage, 144. Shaw, 204, 227. Sherlock, 196, 224. Shropshire (Jusiices), Sj2. Smith, 31, 144, 134. Staffordshire, 234. Stapleton, 248. Stepney (Guardians), 1 '^O. Stretch, 125. Suffolk (Justices), 17. Survey (Justices), 19, 28, 82, 207. Sutto:i, 144. Tithe Com., 234. Totness, 42. Twiss, 4,3. Wakefield, 83. Warren, 143. Wellings, 192. Widdop, 43. Wintersett. 78. Worcester (Justices), 15. W-Jithenbury (Inhab. ofj, 239. R. V. W. R. (Justices), 22, 48. Reid V. Dickons, 116. V. McDonald, 214, 215, 247. Reiffenstein v. Hooper, 92, Rennic v. RatcllfFo, P6. Rettinger v. Macdougall, 77. Revett V. Brown, 105. Keynolds v. Allan, HI. V. IJarford, 21 P. V. Strecter, 175. V. Wheeler, 28. Rhodes v. Siiiethiirst, 158, 266, Ricardo v. Board of Health, 43. Richards v. James, 1)9. Richardson v. C. W. F. In. Co., 144. V. (ireaves, 150. V. Jackson, 111. V. Shaw, 44. Richmond v. I'roctor. 171. Riddell v. McKay, 170. Ridley v. Sutton, 133. Rigg V. Lonsdale, 61. Ringland v. Lowndes, 165, 168. Riseley v. Rylo, 218. Ritchie, Re, 7,\ V. Smith, 49. River Steamer Co., Re, 159. Rivers v. Griffiths, 113. Roach V. Wright, 214. Roberta v. Brett, 15. V. Holland, 170. V. Humby, 43. V. Orchard, 26, 230. V. Toronto (Corp'n), 148. Robertson v. Cornwall, 86. V. Fortune, 176, 219. V. Jenner, 77. Robins v. Bridge. 124. Robin'-m V. Cook, 111. V. Davison, 178, 192. V. Emanuel, 65, 147. V. Gell, 138, 341. V, Harman, 113. V. Hindman, 77. V. Lawrence, 142. V. Lenaghan, 43. V. Nesbitt, 151, 155, 158. V. i'lece, 186. V. Rowland, 122. V. Shields, 120, 173. V. Shistel, 78. V. Ward, 113. Robson V. Waddell, 184. Rodger V. Oomptoir d' Ksconipte de Paris, 187. Rodgers v. Parker, 230. Rod way v. Lucus, 93. Pi if i .'}■:■ \m m (. , ;' ,1 iM' .,.,'f :; 4 i '^ ;i! > i| rl it i! i I ■•iii i;:«:ii I!: XXVI TABLE OP CASES CITED OR INTRODUCED. :; i'. Uodwc'U V. Phillips, 176. lloffey V. (Ireenwell, 137. iioixern v. Hunt, lnO. Roissier v. VVcstbrook, 101. Kolfe V. Lcarmonth, 87. Uolker v. Fuller, 178. Rolt V. Mayor, Ac, Ciravesend, 17*, 27ft. Ilooth V. Wilson, 208. lioscorla v. Thomas, 66. Ross, Re. 177. V. Bruce (Corp'n), 167, 169, 170. V. (Jandell, 289. V. Grange, 17H, S44. V. Hamilton, 177. V. McLay, 185, 230, 339, 343. V. Perrault. 135. V. Tyson, 58. Rosewarne v. Billing, 49. Rouse V. Meir, 169. Rowberry v. Morgan, 92, 100. Rowe V. Hopwood, 59. V. Jarvis, 174, 176. Roval Can. B'k v. Matbcson, 199. — V. Shaw, 138. Royal Mail S. P. Co., v. Braham, 94. Rumbelow v. Whalley, 116. Rusden v. i'ope, 214. Rush V. Smith, 125. Russell v.G. W. U'y Co., 129. V. Williams" 82, 217. Rutherford v. Stov.-l, 118. Ryall V. Rowles, HIS. Ryder v. Townsemi, 111. . V. Wombwell, 59. Salaman v. Donovan, loO. Salter v. McLeod, 4i), 270. Sampson v. Soaton & Beer R'y Co., 150. Samuel v. Coulter, 214. Sanders v. Stewart, 148. Sanderson v. Bell, lOii. Sandys v. Small, 67. Sangster v. Kay, 87. Sareh v. Blackburn, 60. Sargent V. Wedhike, 188. Sarjeant v. Dale, 46. Saunders v. (Iraham, 110. V. Pitman, l(i6. Sayer v. Dufaur, 57, 62, 91. Saxon V. Castle, 173. Searth, Re, 158. Schamehorne v. Traske, 216. Schmaltz v. Avery. 58. Schneider v. Agnew, 36, 189, 192. Schofield V Bull, lo2. V. Cor belt, 1 18. Scholesv. Hilton, 123, 126, 126. Schreger v. Cardcn, 116, Scott v. Bye, 82. V. Carveth, 176. v. Ebury, 58. v. Lewis, 215, V. Stansfield, 17. V. Uxbridge, &c., R'y Co., 112. V. Van Sandau, 168. Searles v. Sadgrave, 112. Segeer v. Duthie, 118. Seagram v. Knight, 266. Selmes v. Judge, 26, 230. Semenza v. Brinsley, 120. Serjeant v. Dale, 42. Sewell v. Jones, 43, 44, 50. Shanley v. Moore, 150. Sharp v. Matthews, 200. Sharpe v. Fortune, 218, 219. V. Leitch, 175, 186. Shaw V. Manvers (Corp'n) 14. V. Massey, 173. V. Shaw, 147, 148. Shea V. U. A. Society, 74, 87. Sheehy v. P. L. Ass. Co., 93. Sheffield N. Co. v. Unwin, 6. Shellard, Ex parte, 163. Shields v. G. N. R'y Co., 74, 86. Shirreff's Case, 78. Siddall V. Gibson, 43, 46, 134. Siirgers v. Lewis, 109. Sillence, Re, 323. Sills v. Hunt, 74. Simmons v. Chatham (Corporation), 15. Simms v. Henderson, 129. Simps .n v. L. .4; N. W. R'y Co., 147. Sinclair v. (»alt, 121. Sisted v. Lee, 102. Skeet v. Lindsay, 159. Skelton v. Seward, 328. Skillett V. Fletcher, 27. Slaght V. West, 60, 177. Sloan V. Croasor, 26. Small V. Nairne, 130. Snialley v. Gallagher, 75. Smart v. Bowmanville Machine Co., 121 . V. Cheli, 57. V.Miller, 149, 151. V. Niagara & D. R'y Co., 93, 100, 136. V. O'Reilly, 43, 86. Smith V. Barnham, 144, 228. V. Bernie, 174. V. Blundell, 102. V. C. & P. R'y Co., 175. V. Hallen, 131. V. Manners, UiO, 113. TABLE OF CASES CITED OR INTRODUCED. XXVll 6. [>.,112. ifi. on), 15. ,147. :!o.,l21. )3, 100, Smith V. McGill, 190. Stirling v. Maitland, 77. V Nichol.son, 118. Stoate V. Stoate, 5. V. RooiK-y, 18. Stocken's case, 137. V. Russell, 4. Stockton M. Iron Co., Re, 148. V. Smitli, 174. Stogdale v. Wil.son, 81, 240, 262. V. Tlioniiisou. 77. Stoker v. Welland R'y Co., 104. V. Truscott, 1 24. Stockoe V. Cowan, 1S6. V. T. & h. Co.. 149. Stoncss V. Lake, 227. V. W. Derby, L. li., 230. Storey v. Vea(!h, 105, 105. V. Wintle. 98. 94. Story. Ex parte, 46. Smyth V. NichoUs, 82. Stourbridge Canal Co. v. Whecley, 62. Siicljjrove v. liriice, 67. Straecy v. Deey, 120. V St('i'<*n'^ 1 ''5 Stratford, Ac, Railway Co. v. Pertli (County), 42, 48. Snider v. Bank of Toronto, 215. Solomon V. Howard, H)(). Strauss v. Francis, lu7, 165. ■XT Wlf »1, tirw til I 7i \ SH.-e"t V. Blay, 68. V. Sinicoe (Corporation), 64. South Australian In. Co. v. Ilandell, 175. Spain V. Arnott, 77. Strong V. Harvey, IU9. Sparkes v. Barrett, 127. Strutton V. Jolinson, 12, 135, 274, 340. Sparks v. Yoiini^, 148. 149. Stun:h V. Clarke. 228. Sparlins^ v. Savaj^e, 'j40. Sturgess v. Claude, 214. Sparrow v. Reed, 141. Sugg V. Silver, 141. Speck V. Phillips, 116. Sullivan v. Bridges, 122. Speers v. G. W. R'y Co., 107. Summers, Ex parte, 45, 82, 247. Spence v. Hector, 1H5. Sutibolf V. Altbrd, 186. Spencer v. Coaly, 158. Sunderland In. Co., v. Kearnev. 57. Spieer v. Todd, 188. Local M, Board v' Frank- Spiller V. i'aris S. R. Co., 58. land, 150. Spittle V. Walton, 2Mi. Supervisors v. U. S., 234, Spragge v. ^'ickerson, 78. Sutherland v. Dunible, 95. Spurr V. Hall, 116. Sutton V. Hawkins, 112. Spy bey v. Hide, 113. Sweetnam v. Lemon, 151. Squair v. Fortune, 175. Sweny v. Smith, 112. Stafford v. Clark, 110. Swilt V. Jewesbury, 147. Standard Bank v. Boulton, 54. V. Jones, 234. Stansfeld v. Hellawell, 76, '212. Stanton v. Styk-a, 118, 120. V Williiiin^' O'* Swire v. Francis, 60. Stapf V. McCarrow, 16H. V. Leach, 62. Staples V. Accidental Death la. Co., Sylvester v. McCuaig, 121, 82, 83. Sykes v. Brockville, Ac, R. Co., 151. V. Young, 81, 153, 16(1. Stebbins v. Ander.sou. 131. Symmons v. Kno.x, 118. Stephens v. Berr}', 121, Synionds v. Dimsdale, 82, 83. V. Stapleton. 2.30. Sympson v. Prothero, 14 9. Stephenson v. Raine, 51. Stephens v. Esling, lOtt. Tait V. Harrison, 102. V. Pennock, 177. Tancred v. Ley land, 173. Stevenson v. Rae, 131. Tanner v. European Bank, 216. V. Rice, 64. v. Sewery, 170. Steward v. Coesvelt, 68. Tapp V. Jones, 148, 156, 162. ^r \if\rtni 1'fft ^n t Tarner v. Walker, 66. Stewart v. Cowan, 228, 230, 231. Tarrant v. ]5aker, 230. V. Macdonald, 45, 6). Tasker v. Siiepiierd, 77. V. Webster, 138. Tate V. Toronto (Corp.), 148, 161, 163. 202. Still V. Booth, 44. Stimson v. Farnhani, 174. Tattan v. G. W\ R. Co., 55. .r tl, 11 1 1 1> Tayler v. Marling, 169. m '■fi'-- ;vi : ' 1 ill Ul \\ 1 ri'l 1 ,:1 i I .1 ,» I i ■! t xxvui TABLE OF CASES (UTED OR INTRODUCED. Taylor v. Addvmiin, G3. — ^ V. Ainslev, 182. V. Chiclu'ster K. Co., 58. V. Crowland G. & C. Co , 86. V. Holt, 137. V. Lanyon, 218. V. PariU'li, 'i6. V. Phillips, 95. V. Hose, 104. V. LSluittleworth, 169. Teal V. Clarksoii, «». Teale v. Young, 28. Teinpler v. McLaehlan, 65. Tennaiit, Ex parte, <J7, 98 Tessiiiioml v. Yardlo}', 46. Thellusson v. Ueiidleshain, 17. Theobald v. R. P. Ass. Co., 148. Thomas v. Evans, 110. V, Hudson, 16. V. Mor-^a!!, 61. V. Morris, 166, 168. V. Nokes, 15. V. Pearce, 93. Thompson v. Iiiifliain, 44, 50. V. Kave, 75. V. McLean, 27. V. Mosley, 125. V. I arisli, 140. V. Pheney, 94. V. Rutherford, 173. Tliomson v. Anderson, 169. V. Redman, 118. Thorburn v. Barnes, 31, 127, 133, 141, 155, -09. Thornton v. Maynard, 119, 120. Thorp V. Brown, 194. Thorpe v. Booth, i 59. V. Burtje^s, 112. V. Cole, 1G7. V. Gisborne, 124. V. Thorpe, 119. Throekniortoii v. Crowley, 179. Thurgood v. Richardson, 218. Tibbs V. Wilkes, 77. Tuffaney v. Bullcn, 151. Tilbury v, Brown, 153. Tildesiey v. Harper, 262. Tiley v. Courtier, 110. Tilt V. Jarvis, 177. Tilton V. McKay, 88. Timon v. Stubbs, 26. Timothy v. Farmer, 50. Tinkler v. Hilder, 46, 216. Tinley v. Porter, 126. Tobey V. Wilson, 114. Toft V. Rayner, 43. Toler V. Slater, 67. Tomlin.son v. Goatly, 98, 153, 155, 252. V. Jarvis, 218, 219, Toms V. Cumming, 228. V. Sills, 64, 240. V. Wilson, 15, 28, 103, 223. Topping, Ex parte, 160. Toronto (.Judge of D. C), Re, 222. (Bank of) v. Burton, 100, 148. V. McDougall, 49. Trainor v. Holeomb, 48, 51. Trent v. Harrison, 328. V. Hunt, 188. Trust <t L. Co. V. Cuthbert, 177. V. Dickson, 20. Tubby V. Stanhope, 12, 32. Tucker, Ex jjarte, 46. TuUy V. <-'hamberlain, 169. Tunno v. Bird, 169. Turley v. Williamson, 158. Turnbull v. Pell, 118. Turner v. Crossley, 113. V. Diaper, 1 ) 9. V. Jones, 150, 153. V. Mason, 77. V. Meryweather, 106. V. iWerson, 174, 175, 27f>. V. Reynall, 122. V. Thomas, 118. V. Wilson, 182. • Turney v. Dodwell, 159. Turquand v, Dawson, 106. Tyler V. -Tones, 169. Underwood v. B. & C. R'y Co., 166. Upper Can. ^Bank of )v. Wallace, 149. 161, Upton V. Mackenzie, 95. Van Allan V. Wigle, 104, 105. Vance V. Ruttan, 218. Vanderbyll v. McKenna, 165. Ventris v. lirown, 172. Victoria Mutual F. Ins. Co. v. Bethuno, 148, 157, 158. Vidal V. Bank of U. C, 101. Vines v. Arnold, 81. Vooght V. Winch, 5. Waddell v. Jaynes, 68. Wade V. Biirnham, 106. V. Simeon, 66, 102. Wagner v. Jefferson, 54. V. Mason, 144, Wakefield v, Bruce, 200, 201. V, Llanellv R. & D. Co,, 168. Walcot V. Botfield, 19, Walesby v. Gouldstoue, 81, 120. TABLE OF CASES CITED OR INTRODUOEI). IMX JO, 252. 22. )0, 148. ,49. 75. 160. ), 14iV ■huno, :m ir.8, Walker V. Barnes, 109, 137 V. Butler, 169. V. Constable, 136. V. P'airbairn, 189. V, OkUng, 216. V. Parkins, 2;H9. V. Rawson, 116. V. S. E. ll'y Co. Wallace, Re, 223. V. Allen, 46. V. Gilchrist, 56. 211. Wallbridge v. Becket, 49. Waller v. Joy, 106. V. Lacey, 159. Walley v. McConnell, 9,5, 190. Wallis V. Harper, 174. Walsh V. loiiicies, 41), S-"). V. youtiiwortli, 112. Walton V. Jarvis, 176. Wainholcl v. Footcs, 6ti. Ward V. Annstron-,', 184, 193. V. Dncker, inti, V. Freeman, 17. V. llobbs, 67. V. McAlpine, 166, 167, 170. V. Vance, 41. 151, 16a. V. Wilkinson, 106. Warren v. Dcslippes, 27. Warwick v, Foulkes, 158. V. Nairn, 68. Washington v. Webb, 216. Waterous v. Farran, 281. Waters, Kx parte, 228. WatHon V. Bocieli, 16. V. lienilerson, 175, 215. V. llethcriiigton, l(i9. V. Mid. Wales R'y Co., 1 20. 1 87. V. I'earson, 112. V. 8wann, 58. Watt V. Lii;ert\v()od, 141, 223. V. Van lU'ory, 4,'t, 85. Walts V. JertVeyes, 186. Waugh V. Conway, 80. V. Cope, 159. Weatlierly, He, 35. Webb V. knight, 67. V. Page, 124. Webster v. Brant Registrar, 185. V, Webster, 148. Weeks v. (roode, 61. V. Wray, 28, 100, 114. Weigall V. Waters, 119. Weller v. Wallace, 93. Wellington v. ChartI, 56. Wellingtou (Mun.) v. Wilinot (Miin.), 135, Wellock V, Coiistantine, 56. Wells V. Abrahams, 56, •'■2. Welsh V. O'Brien, 75. V. Seaborn, 64. Westbrook v. Callaghan, 20;;. Western B'k of S. v. Addie. 6(i. In. Co. V. McLean, 96, 111. Westlakev. Abbott, Km. 102. Westley v. Jones, 93, 124. Westloh V. Brown, 58, 182. Westmoreland V, Iluggins, 129. Weston V. Sneyd, .'i3, 82. V. Thomas, 182. Westover v. Turner, 45, 74, 87. Westwood V. Cowne, 2'ir). Wethertield v. Nelson, 234. Wharton v. Naylor, 218. Wheatcroft v. ilickman, 98. Wheeler v. Atkins, 130. Whiley v. Wndley, 101. Whi|)ple V. Maidey, 1">8. Whitaker v. Wisbey, 54. White, i^^x parte, 175. V. Bin stead, 218. V. Klliott, 59. V. Spettigue, 56. 61. V. 8teel, 46. Whiteliead v. hord, 159. — — V. Proctor, 248. V. Walker, 119, 159. Whitlock V. Squier, 109. Whittaker v. Jackson, 5. Whittcmore v. Macdonncll, H'>2. Whitworth v. llulr^e, l<i7. Whyte V. Tread well, 174. Wickens v. Steel, 26:i. Wickes V. Grove, 263. Wickliam v. Lee, 50, 19. WiUl V. Holt, 167. Wilde V. Sheridan, 86. Wiley V. Crawford, 148. V. Smith, 6i). Wilkins v. Casey, 162. Williams, Kx parte, 62. V. Bryant, 2;i9. — V. (jlrey, 1S9. V. Harding. lOO. V. Ilnskisaon, 147. V. Moor, 59. ._ V. Mostyn, 148. V. Reeves, 149. V. S. W. R'y Co., 144. V. Williams. 147. Williamson v. W'illiamson, 137. Willing V. Kir.ott, 66, 284. WiHis V. Ball, 94. V. Langridge, 108. Willows V. Bull, 180. m 4 ' > (,, i xxx TABLE OF CASES CITED <^n INTRODUCED. Si 1 ' 1 11! i i r ■ * ' '^' '■ 1 I: J ■ . 1 'Ik % llM ^!" '•I Wilmot V. Smith, 109. Woolen V. Wright, 177. ir ^Vfid -ii'drth 191 Wooster Coal Co. v. Nelson, 101, Worley v. Glover, 93. 102, Wil.son V. Cuttcn. 4tt. V (! ihfiil 1''n 1R7 Worsloy v. Bassett, 106. ■"^^~"~~^ V. VTtlUllLI, L^\Jf lOI. V Hnrnii At- (Cum) IfiS "'"7 Worthington v. JetlVies, 42, 46. V. Mason, t57, 175. Worden v. Date Patent Steel Co., 239. tT 1>*v«f T I<.«m 1 1 iR Wortley, Re, 264. Wright V. Child, 274. V TTnfill 1 1 i ,, "Xr-w-f 1*7!; V. Cook, 121. V AVil-rm '"^l? Wintiker v. Prinfjle, 83. WiiiircM- V. Sihhnld, 80, 81, 100, 240. Winks V llnldcii ^1^^ "Kf :../'*«. a;.. lilt! T Prnrl ^ ^i\ Winn V. InsiHiy, 174. \Vin.sor v. Duniord, 44. Yeates v. Palmer, 43. Winter v. Bartholomew, 216. Wisnier v. W'isiner, 78. ^' Rntlr'fli-r ^^ ^ Yeatmnn v. Dempsey, 125, 148. Wood V. Bowden, 104. Yelland's case, 78. V. Dunn, 151, 161, 162, YorkC. C, Judge of, 104. V. Foster, 18. Young V. Buchanan, 175. V. McAlpine, 56, 91. V. Fluke, 137. V. Perry, 79, ,r f|if»"-r)n "R 97 100 IH ,130-. V. Stevenson, 119. 145, 209, 230, 242. V. Woad, 141. V. Waggoner, 121. V. Wood, 186. Woodcroft V. Jones, 168. Zavitz V. Hooever, 140. Woods V. Rennett, 48. Zohral v. Smith, 43. Woodliains v. Is'owuiuu, 81. Zouch V. Empsey, 92. lii ,; ■I I ml •■■ ill ■'• / .1. 101, 102, 6. Co., 23$. LIST AND EXPLANATION OF THR ABBREVIATIONS, AND EDITIONS OF TEXT BOOKS, UKFEHUED TO. 14,139, Aild. on Con Addison on Contracts, 7tli Ed. .\dd. on Torts Addison on 'I\»rts, 2nd Ed. A. & E Adolphus & Ellis. Audr Andrews' Keports. Anst Anstruther. App. (^as Law Reports, H. of L. and Jud. Coin., New Series. App. R Appeal Reports, Ontario. .\rcli. C. E Archbold's Criminal Law. Arch. Pract Archbold's Practice, 12th Ed. liac. Abr Bacon's Al)ridgeraent. 1>. & Aid Barnewall & Alderson. \>. & Ad., or B. & A. . Barnewall & Adolplms. !>■ it C Barnewall & Creswell, B. C. C Bail Court Cases. B. C. R Bail Court Reports. Barnes Barnes' Notes, (!. P. Beav Beavan's. lienjaniin Benjamin on Sales, 2nd Ed. 15i"g Bingham. Bing. N. C Bingham's New Cases. Black., VV Sir Wm. Blackstoue. I Slack., H Henry Blackstone. [;• ,^ ^:-' ■■ Bullen & Leake's Precedents in Pleading, 2ud & 3rd Eds. Hull. N. P BuUer's Ni.i Prius. H- & P Bosanrjuet & Puller. H- & B Broderip & Bingham. B. & S Best & Smith. i|idst Bulstrode. "urr Burrows. Byles on Bills 9th Ed. < l^iiip Campbell. ' |- B . . Common Bench. ^' ^'- ^ • ^ Common Bench, New Series. Ciian. Cham Chancery Chamber lleports. ^ • "t J Cromptou & Jervis. Cham. R Chamber Reports, Com. Law. * ]■ "t M Crompton & Meeson. C. M. & R Crompton, Meeson & Roscoe. < '"'""n Kent's Commentaries. ]'\ ^i'^ Croke's Reports {temp. Eliz. Jas. Cha. ) ' • * ^ Carnngton & Kirwau. Car. & M., or) ^ . ^ ^„ < '. & Marsh, \ Carnngton & Marshman. * '• ^' Common Pleaa Reports, Upper Canada and Ontario. ••V i il^ "■%: ;l <■' I .if" !l ■>■ ,1 ,H .; l..l^ Iv' iC 1 '• ;i '■ ■■ ■i ■i* Li.;- '^ XX XII LIST AND EXPLANATION OF ABBREVIATIONS. C!. A, P (!arringt(m & Payne. (!han. D Law Reports, (Jhancery Division. C L. P. Act (Jonunon Law Procedure Act. (Jhitty Chitty's Ptcports. Chitt's Prec (Chitty's Precedents in Pleading, 3rd Ed. (^'hitty on Carriers. .. . Ist Ed. < '1. & Fin CLark & Finnelly. C P. D Law lleports, Common Pleas Division. ('o. Kep Coke's Reports. (^ou. Stat. U. C Consolidated Statutes of Upper Canada. Cowp Cowper. Davis' C. C Davis' Practice of the English County Courts, 3rd Ed. De Colyar on Cuarantecs, 1st Ed. De a. M. & (J Do (iex, McNaughton & Gordon. Den. C. C Deuison's Crown Cases. Dicey Dicey on Parties to Action. Draper, 11 Draper's Reports, U. C. Drew J )rewry. Dowl Dowling. D. & L Dowling & Lownde. D. & R Dowling & Ptylaud. Dowlg. N. S iJowling, New Series. Doug Douglas. Dwarris on Statutes by Potter (Amer.) E. & A l<>ror and Appeal Reports, Upper Canada. E. & R Ellis & Blackburn. K. R. & E Ellis, Rlackl)urn & Ellis. E. & E Ellis & Ellis. E. R. & S Ellis, Best & Smith. East East's Reports. E. T Easter Term, U. C. Reports of the Reign quoted. Esp Espiiiiissc. Ex. or Exch Exchequer. Ex. D Law Reports, Exchequer Division. F Form. Farr Farresley's Reports. F. & F Foster & Fiulason. I'^isher's Dig Fisher's Digest, 1756 to 1870. Freem Freeman. (}. & D Cale & Davison. (J ray on Costs 1st Ed. ( row (jow's Nisi Prius Cases. Oraut Grant's Chancery Reports. H. & C Hnrlstone & Coltman. H. & N Hurlstone & Norman. H. & VV Harrison & Wollaston. H. L. Rep. or Cases. . . Clark & Fiririell^'s H. L. Reports. Har. C. L. P. Act. . . . Harrisoiis (Jommon Law Procedure Act, 2nd Ed. Har. Mun. Man Harrison's Municipal Manual. Holt . Holt's Reports. H. T Hilary Term, U. C. Reports of the Reign quoted. Howard U. C. Supreme Court Reports. LIST AKD EXPLANATION OF AIIUKKVIATIOXS. XXXUI Ird Ed. Irish Oh. R Irish Chancery Reports. Iiish i'. L. R Irish Common Law Rejiorta. l.-i.sli Eij. R Irish Ktiuity lieports. John. & Hem Johnson & Hemming. .lur Jurist. Jur. N. S Jurist, Now Series. Kerr on Fraud 1st Ed. Kuy & J Kay & Johnson. -• I^. & C Leigh & Cave. J.. C. (t Local Courts Uazette, U. C. & Ontario. L. J. Chan Law Journal, Chancery. li. J. Q. B Law Journal, Queen's Bench. L. J. C. P Law Journal, Common Tleas. I.. J. Mag. Cas Law Journal, Magistiate's Cases. L. J. Mat Ijaw Journal, Matrimonial Cases. L. J. N. S Canada J^aw Journal, New Series. L. M. & P Lowndes, Maxwell & Pollock. L. R. A. & E Law Reports, Admiralty and Ecclesiastical. L. R. C. C Law Rejjorts, Crown eases, reserved. I .. R. Ch Law Reports, Chancery Appeal.s. L. R. C. P Law Reports, Common Pleas. L. R. Digest Digest of Cases, 18()() to 187;"). li. R. E(i Law Reports, Equity ('ases. L. R. Ex Ijaw Reports, Exchequer. ii. R. H. L Law Reports, English and Irish Appeals, H, L. L. R. P. C Law Reports, Privy Council Appeals. Ii. R. P. & D . Law Reports, Probate aud Divorce. L. R. Q. B Law Reports, Queen's Bench. I .. R. Scotch App Law Reports, Scotch Appeals. L. T Law Times. L. T. N. S Law Times, New Series. Ld. Raj' Lord Raymond. Lush's Pract Lush's Practice, 3rd Ed, Mac. & (t MacNaughton & (Jordon. Maeq. H. L Macqueen's Scotch Appeal Cases, Marsli Marshall. Max. on Stat Maxwell on Statutes, 1st Ed. Mfiyne Mayne on Damages, 3rd Edition. M. & S Maule & Selwyn. M. & W Meeson & Welsby. MolUe McCleland. McC. & Y McCleland & Younge. M- & G Manning & Granger. M. & R Manning & Ryland. Mioh. T Michaelmas Term, U. C. Reports of the reign quoted Mod Modern. 'Moore Moore's Reports. M- & M Moody & Malkin. Moore P. C Moore's Privy Council Cases. Moo. & R., or ) HT J iL T. 1 • -M. & Rob. \ Moody & Robmson. Moore, J. B J. B. Moore's Reports. M. & P Moore & Payne. I i XXXIV LIST AND EXPLANATION OF ABBREVIATIONS. if*.,. New Scss. Caa New Sessions Cases. N. 11 Bcwanqnet & Puller's New Reports. Nev. & M Neville & Manning. Nev. & P Neville & J'erry. O. S Old Series, U. C. Oliphant Oliphaut's Law of Horses, 3rd Ed. Paley on Con Paley on Convictions, 4th Ed. P. ]) Law Reports, I'robate Division. P. & D Perry & Davison. Peake Peake's Nisi Prius Cases. I'eake Ad. Cas Peake's Additional Cases. P. 11 Practice Keports, U. C. & Ontario. Price Price's Reports, Ex. Q. B Adoli)hus &. Ellis, New Scries. Q. B. D I>aw Reports, Queen's Bench Division. Rawle Rawle's Pennsylvania Reports. Raym Raymond. Hev. Stat ]{evised Statutes, Ontario. Jtol). & Har. Digest . . Rohinson & Harrison's JJigest. » Rob. & Jos. an<l | t> i • s t \ ' t\- t. H Ar T D' ' t ( • ■ • • Rooinson & Joseph a Digest. Roscoe Crini. Ev Roscoe's Criminal Evidence, 8th Ed. Roscoe's N. P Roscoe's Nisi Prius Evidence, 13th Ed. R. & R Russell & Ryan. R. & M Ryan & Moody. Russell Russell on Arbitration and Awards, 4th Ed, R Rule. Salk Salkeld. Sauud Saunders. Scott Scott's Reports. Scott N. R Scott's New Reports. Sess. Cas Sessions Cases. Smith's L. C Smith's Leading Cases at Law, 6th Amer. Ed. Stark. Ev Starkie's Evidence. Stark. N. P Starkie's Nisi Prius Reports. Stephen Stephen on Evidence, 2nd Ed. Story Eq. Jur Story's Equity Jurisprudence. Strange Strange's Reports. Sup. C. R Supreme Court Reports, Canada. Swa. & Tri Swabey & Tristram, Swans Swanston. Taunt Taunton. Tay. on Ev Taylor on Evidence, 4th Ed. Tay. R Taylor's Reports, Upper Canada. T. R Term Reports (Durnsford & East). Tidd Tidd's Practice. T. T Trinity Term, U. C. Reports of the Reign quoted. Tyrw Tyrwhitt. Tyrw. & G Tyrwhitt & Granger. %» LIST AND EXPLANATION OF ABDnPAIATIONS. XXXV U. C. Tj. J Upper Canada Law Journal. n. C, li Uppur Canada and Ontario Q. B. Kuports. Ves Vesoy's, sen., Reports. Waterman AVatonnan on Set-off, 2nd Ed. Watson on Sheriff. . . . 2nd Ed. W. J{ Weekly Reporter in all the English Courts. Wharton Wharton's Law Lexicon, .3rd Kd. Woodfall's L. & T. . . . Woodfall's LantUord & Tenant, 8th Ed. Wils Wilson. Wnis. on Exrs Williams on Executors, 5th Anier. Ed. Worcester Worcester's Dictionary, Unabridged Etlition of, 185y. W. N Weekly Notes. YoiL & Coll. I Y"""g« * Collyer. Y. & J Younge & Jervis. Younge Younge'a Reports, Ex. W'!: c'; d. \r , •■ 'W r •' i- 1 'Ml '/' v-iY^^^-* DIVISION COURTS ACT. KEVISKD STATUTES. ONTAUIO, CAl'. 47. I. This Act may be citeil us " Tha Dicislon Courts Sl'ort tillo ol Adt. (*) By the Statute of 4 & T) Victoriii, cliapter T)!?, wliat w.is then known and iiMuil as a nieau.s of collectiii!^ small flclits, the Court of lto(HR'sts, wan alioiisliud, and way siipiilanti'd hy wliat luus nincc l)uon familiarly known as tin; Division I'oiirt. That Act, and an)endnionts to it, continued in force until the year l,S.")(», when tlie Leginlature dctennined to consolidate and reduce into one Act the yeveral laws then in force referring to Division Courts in Cpper Canada; and on the *Jl)th flay of May of that year leave was granted in the House of Aasenddy of the old Parliament of Caiuula to bring in a l)ill for tiiat purpose. «»n tile same day Hon. Mr. Sherwood introduced a hill (afterwards sul)stantially adopted), which was then read a first time, aud was o.dered to he read a second time on the l!)th day of June foHowing. On this last mentioned day the hill was read a second time and referred to a Select (\inimittec, oomposed of the tlien Solicitor-(ieueral (the late John Sandtield Maedoiudd), Hon. Mr. Slier- wood, Mr. Itichards (the late Chief .lustiee of the Supreme Court), Mr. Fer- guson, Mr. Seymour, Mr. Flint and Mr. Thompson, with instructions to report thereon with all convenient speed. On the 17th of July, ISoO, Mr. Solicitor-( General Macdonald re])ortod the hill from the Select Committee, with amendments ; and it was ordered that the hill and report be committed to a Committee of the whole House for the then following Tuesday, aud that the l)ill shouhl be rej)rinted. On the .Slst of July, lSr>(), the bill being read, the House accordingly resolved itself into Committee. Notice having been taken that there was no quorum, Mr. Speaker resumed the chair, and the names of the members present were taken down as follows :— Mr. Speaker, Messieurs Attorney-(ieniral Baldwin, Hell, C'ryslcr, Do Witt, Flint, Foiiriiier, Hopkins, Laurin, Solicitor-(!eneral Macdonald, McConncll, McFarland, JUcharda, Ivobinson, Scott (of Bytown), Seymour, Smith (of Frontenac), Stevenson and Thompson ; and at a ([uartcr of an hour after midnight the House was adjourned by Mr. Speaker, without the 'piostion h ;ing first put. On the 2nd of August, 1850, the order of the day for the House in Comniittec on the bill being read, the House resolved itself into Committee, Mr. Laurin figain ill the chair. The bill was reported with amendments. On the 5th of August, 1850, when the amendments were read, it was moved by Mr. Solicitor-Geueral Macdonald, and seconded by Mr. McLean, aud the 'ill'".'" '.Vf': \ .'.'.V PASSING OF THE ACT OF 1850'. [,.1, ::!!•:: hi'' question l)cin<T proposed that the aincndments be then read a second time, Mr. Smith (of J)urhani) moved an amenthnent to restrict the incomes of certain Division Court Clerks, which, after del>ate, was negatived. On the (itli of August, ISoO, Mr. Lyon (the late (!eorge Byron Lyon Fellowcs) moved in amen<lnient to tlie (juestion, "that the bill V)e re-committed for the purpose of inserting a claus'3 for granting an appeal to the Courts of Quecn'.s Bench or Common I'leas, or a Judge of any of such Courts in Cliaml)era, in all cases of assum^jsit, debt, or contract, when the anunint claimed is between the sum of ten pounds and trt'enty-tive ])ounds inclusive, and in all cases of tort.'" This amendment was lost in a House of 4S nieml)ers by a division of 3 yeas to 45 nays. The minority was composed of Cauchon, Lyon and Smith, of Fron- tenac (the late Sir Henry). The bill, as amended, was read a second and third time that day. On the 7th of August, the House ordered that Mr. Solicitor-General Mac- douald sliould carry the l>ill to the Legislative Council and desire their con- currence. The bill i)assed the Legislative Council on the 9th of August, ISoO, and on the following (lay it received the assent of His Excellency (Lord Elgin); and that which has since become so familiar to the peo]>le of this Province, and which has l)ecome so interwoven with their bnsinesd interests, and forms such an important jiar*^ of our administration of justict., b;came law. A'^ery few of those now remain who twenty-nine years ago Were instrumental in consolidating and re-forming the Division Court system. Some are yet with lis to see the efl'ect of their handiwork, and to contemplate the a<lvantages or mischief that it has i)rod;iced. We know not whether this Act (which was known as the LS & 14 \'ic. cap. 5.S), met the hojjcs .and expectations of its friends and advocates of that day ; but with all its imperfections and defects, it may safely be said of it, that it forms so imjiiortant a part of our legal system that the disposition appears to be gaining gi'ound rather to extend the boun- daries of its jurisdiction tlian to narrow its limits or authority. If such a view is gaining ground among the laymen throughout the country, as it appears to be, it cannot be said that the law has not been productive of some gocjil residts, or that the fruition of the hopes of the Legislatu'-e of 1850 has not been attained. It is to be ol)served by what a decisive majority the proposition to give an ap- peal to one of the Superi(n' Courts of Connuon Law, or a Judge of either of them, was rejected. We think, after so many yeara' experience, that public oiiinicm would now sustain the view so uneiiuivocally pronounced at the jjassage of the bill ; and unhesitatingly declare that, with the (!Iourts as at present constituted, it is better to suiter an occasional wrong through the mistake of a Judge than that people should suffer the delay and expense of appeals, and be harassed by the litigation of small matters ui the Superior Courts. If the day has come for changing the character of these ('ourts from what they have been— the easy and rea<ly means, at comparatively little exi)ense, of collecting debts, </r of parties having their differences settled in tlieir own localities — it is also time for the ctmsideration of the broader (juestion, whether the vholc local Court system could no vith advantage be revised and reformed. Any material change in thi; Div;- on Court system appears to necessitate a reconstruction of the County Courts ; and if one should be attempted without the other, it will shortly be found out that, if reforms be neede<l, tlie mistake will be in not con- sidering both question'; together. The extension of the jurisdicticm of the Division Courts appear to us necessarily to raise the (piestion of extending the jurisdiction of the County Courts. The people, we feel assured, are quite pre- pared for and would accept this as legislation in a proper direction ; and aucli a measure is one which, it is hoped, will ere long be carried out. '9 [».l. (I time, Air. s of curtain tn Fellnwes) ;te(l for the of (^uecn'H iil)era, in all itetween the es of tort." )f 'A yeas to ;h, of Fron- iil and third snercal Mac- e their con- , and on the ) ; and that , and which ms auch an iistrumental vre j'et with vantagea or (which was btions of its d defects, it legal system d the boun- such a view appears to ood residts, not been give an a|)- ler of them, c opinion sage of the )nfltitute(1, udge than vrasscd by has conie -the easy bts, »/r of s also time )cal Court y material bruction of ler, it will in not con- ion of the ending the quite pre- aud 8uch SS. 2-G.] NUMBER AND DESIGNATION OF COURTS. 3 2. In the construction of this Act, " County " shall intorfc- inchule two or more Counties (a) imited for judicial pur])oses; jiiul in any form or proceeding the words "United Counties" shall be introduced where necessary. C. S. U. C. c. 19, s. 1. THE COURTS. 3. The Division Courts, and the limits and extent thereof courts existing at the time this i ct takes effect, {b) shall continue until altered by law. C. S. XJ. C. c. 19, s. 2. 4. There shall not be less than three or more than twelve Numbev of Division Courts in each County, (c) of which Division olll'inuJ" Courts there shall be at least one in each City (d) and '""^ ^''''*'*- County Town. C. S. U. C. c. 19, s. 3. 5. The Court in each divisior shall be called " The First Desi-nation Division Court in the County of (c) ", (or as the case viay he.) C. 8. U. C. c. 19, s. 9. '' ' Each Court 6. Every Division Court shall have a seal, (/") with which y",'/,''""' .■^' (rt) This is in efl'ect repeating the 12th sub-section of section 8, cap. 1, of the iievised Statutes (Interpretation Act). (/') The Kevised Statutes of On^'iirio (of which this is one) came into force on the ;^lst of December, 1877, by proclamation, under section o of the Act respect- ing the Revised Statutes of Ontario, passed on the 2nd day of March, 1877, and confirmed l)y the Act of 41 Vic. cap. 0. (c) Or union of Counties as the case may be. See section 2. (J) Should there be a City in the County other than that in which the court house IS situate and the Assizes are held (Rev. Stat. caj). 174, s. 2, sul)-sec. (i), a Court would necessarily have to be established there. Tlie word "City" here might be considered as equivalent to "County Town,'' but it is submitted that its meaning should not be so restricted. ((') Usually numbered in consecutive order, commencing with that at the County Town as Number One: 7 U. C. L. J. 147. (/') Chaucelliir Kent says, "The Common Law intended by a seal an impression upon wax or paper, or some otiier tenacious substance cjipable of being im- pressed : " 4 Comni. 452, 9th Ed. Lord St. Leonards was of opinion that sealing by an impression on paper was good at Comnum Law. Tlie same view has been e.xj)ressed by many of the State C^ourts in the United States, and also by the Supreme Court of that country in Pillow v. HobartK, 13 Howard, 472. In Ilamiltonv. Dennis, 12 Grant 32") atlirmed on appeal 14th March, 18f>7, it was held thab in an instrument, instead of wax or wafer being aitixed thereto for seals, slits had been cut in the parchment, and a ribbon woven through so as to appear on the face of the document at intervals opposite one of which each of the parties to the deed signed, that it was duly sealed. See also Fosttr V. Oeddes, 14 U. C. R. 23?» I mm •V.-.- Wi ''■■"V '*;'i '■■■yA ■.'I i NOT COURTS OF RECORD. [S. Not to l)p Courts of Uecoril. all process (q) of tho Court shiill be sealed or stamped, (A) and siicli s(^al shall be ])aid for out of the Consolidated Ee venue Fund (0- C. S. U. C. c. 19, s. 4. 7, The said Division Courts shall not bo held to consti- tute Courts of Record, {k) but the judgments in tho said Courts shall have the same force and eflect as judgments of Court,^ of Record {I). C. S. U. C. c. 19, s. Sj 32 V. c. 23, s. 1. The seals usually adopted by Division Court Clerks, l)y wliieh an impression is made on tlie process issued from their Courts, shewing tho mnnbcr of the Court and County in which it is, without any wax or otiier foreign substance, are no doubt vahd and \\'ithin this clause of tlie Statute: Ontario Salt Co. v. Mirchiuitu Salt Cu. 18 (irant, or)l. Shouhl a clerk use an improper seal, or one that does not clearly authenticate the Court from which the ])roeess purports to 1)0 issued, it would be tho (hity of the Judge to see that this mistake and omission were corrected : see Rule t). (;/) Moans in the interpretation of the Rules of Court "any summons, writ or wari'ant issued under tlie seal of the Court, or Judge's sumnunis or order." Kule 2. liut in this section it cannot [)ropcrly bo applied to Judges' sunnnonses or orders. (Ii) ShouM this not Ix; done, the process would be irregular and liable to he set aside {Siiiit/i v. h'ii.i.ir//, I Cliaiu. l\. lit.S), unless an amendment were allowe(?, whicli should bo done as a matter of course ; the mistake being a misprision of the Clerk : C/iccsc v. Sca/ci, 10 M. & W. 4S8 ; also, see iiulo 118. (l) The Clerk should render the account to the Provincial Treasurer for pay- ment. (^•) Such Courts are detineil to be those "where the juilicial acts and pro- i;eedings are enrolled for a por[)etual memorial and testimony, which rolls are called the records of tho (Jourt, and are of sucli high and su[)ereinincnt autho- rity that their truth is not to be called in (luostion:" Wharton's Law Lexicon, l>nd Ed. mi. {/) At pages 54 & o,") of Stephen's Digest of the T^aw of Evidence, it is laid down that "'all judgments whatever, are conclusive proof as against all the world of the existonc:e of that state of things which they actually atlect ; and they are relevant when their own existence or the existence of the state of things so ail'ected is a fact in issue or relevant to the issue :" see eases there citeil and illustrations given. At seetiim 1480 of Tayhn- on Evidence, that learned author says, "If the object he merely to prove t/ii' cdsffiirc of the jiidi/tnoit, itx dnlc or its Ici/dl con- .se'/»''//'V'.s', tho production of the reconl or the proof of an examined co[)y, is conclusive evidence of the facts against all the world. This rests on the ground that a juugment is a )>ul)lic transaction of a sohimu character, which nuist be pro-snuied to i)e faithfully recorded." lUit what parties are to bo alfocted by a judgment? It is said that "every judgment is conclusive proof as a'^ainst parties and privies of facts directly in issue in the case acbiially deeidiMl by the Court, and a))p3aring from the judgment itself, to he the ground on which it was basod : " SLuihen, 51). "Privity deiuites nuitual or successive relationship to the same rights of property ; and the roa^on wliy pjrs:ins standing in this relation to the litiuant, can rely upon and are bound by the proceedings to which he has be(;n a i)arty, is that they are identified with him in interest. Hence all privies, whether in blood, in estate or in law, are e3to[)p<jd themselves, and can estop others from ^ h: •' [s. 7. ;ainpo(l, (h) Dusolidated I to consti- u tin; .Siiid (Igiuoiits of c. 23, s. 1. 1 impression inbor of the 1 Hiihstanee, I Salt Co. V. seal, or one iss purports nistiike and anions, writ s or order." summonses liable to be linent were ike being a le Rule HS. rer for pay- ts and pro- li rolls are nent aiitlio- w Lexicon, e, it is laid nst all the ill'eet ; and le state of ases there ■s, "If the /(•(/(t/, cuii- il copy, is ;he gnmnd nnist be oetod l)y a a'l a','ainst ed l)y the whieh it rights of litigant, n a l)arty, huther in ihers from s. i •] KFFECT OF JUDOMENT. litigating that which would be conclusive cither against or in favor of him with whiMU they are in ])rivity :" Taylor on Kvid. s. 1.101 ; lloscoe's N. P. l.StI' 1m1. 'J()<i. But an important exception has been engrafted on this rule, which is, that if evi<lence was adnutted in the acfon in which judgment Nvas recorded, whicli is excluded in the action in which that judgment is oti'ered in evidence, then «uch judgment is irrelevant testimony. The illustration given by Mr. Stephen for this at i)age 57 is in these words: " A. (obtains a decree of judicial separation from her husband H. on the ground <if cruelty and desertion pn>)vd hi/ her oirn cnilcnrc. Aftprwards B. sues A. for disscdution of marriage on the ground of adultery, in which suit neither B. nor A. ean give evidence. A. charges B. with cruelty and desertion. The decree in the lirst suit is irrelevant to the second: " SUmtc v. Stoate, 2 Swa. & Tri. 223 ; :iO L. J. Mat. cases, 102 ; 3 L. T. N. H. ToC), s. c. Statements in judgments as to facts upon which the judgments are based, are iirelevant as between strangers, or as between a l)arty or privy and a stranger. Ta.vlor on Kvid. sec. 1505 ; Stephen on Evid. jip. 57 00; Uoscoe's N. P. 20(»; Alison's case, L. li. 9 Ch. 24. As against a stranger, a judgment is evidence of (he fttrt of itd recovery, but not of its contents : Uoscoe's N. W 207. As between parties and privies, in courts where written pleadings are recpiisite, a judgment is (udy a relevant fact, if not pleaded by way of estoppel whenever any nuitter which was or niUjItt hare heeii decided in the action in which judg- ment was given is in issvie, or relevant to the issue in any subbe<juent action ; (lil,!,.^ V. Cnilkshniil,; L. H. 8 C. P. 454 ; Conrm/i v. Coiinh/i, L. 11. 1 P. & M. at isage 518 ; Can- v. Taiiiiahill, 31 V. V. W. at page 21 1 ; Vilixjht v ]V\nch, 2 B. & Aid. (>li2. It is also conclusive proof of the facts wliich it decides or might have decided, if the party giving it in evidence had no oj)portunity of ])leading it as an est(tii])el : Stephen, 5!l ; R(»sc(»e's X. P. 205 ; Fem'KhniH, v. Enicr.tun, \\ Kx. 385 ; W/ii taker v. Jart-<oii, 2 H. & 0. 920, Then what is the effect in Division Courts where there are no pleadings of a judgment being given in evidence? It is submitted that its effect is the same as if tiie party giving it in evidence had been in a position to plead it, and had actually done so. A party should not be prejudiced by the procedure of the ('ourt not affording him the same rights .as in ftther Courts. The rule only applies where an " apjuirtunitji " of pleading the judgment in estoppel is given. " \\'e apprehend that the rule is now too well settled to be disturbed, that a ji\dgment containing the (tther elements of an estopjjel is conclusive, if pleaded where there is an opportunity of pleading it ; that where the frame of the \tleadings does not ail'ord any such opportunity, it is conclusive as evidence ; l)nt tliat where the party claiming its benelit has not chosen to plead it, although there was an opportunity, he is deemed to have waived the ai)solute estoppel, and to leave the judgment as evidence for the jury : " per Moss, J. A. in Bnuru, V. }'((^'.s', ef a/., 1 Ajip. II., at page 374. It is no default of a party's, and therefore it would be unjust that he should be prejudieeil. The law is not so unreasonable as to ask imjjiissibilities, and to take away the right wljieh a persou 2)ossesses by reason of the impossibility of its j)erformanee. "Tiie law tloes not seek to compel a man to do that which he cannot po sildy i)erform : '' Broom's Legal Maxims. The American Courts, as a rule, hold the judgment an estoppel, whether pleaded or not: Mar.s/i v. Pier, 4 llawle, 288 & 28!); 'i'ay. on Ev. s. 1487, Note 3 ; (Ir/enleaf on Kvidenee, Pith I'M. see. 531". The .author submits that the same ri le should ]irevail in Division Courts. The .sc' i m makes the judgments in Division Courts h.ave " the same force and eff'ect iudgments of Courts of ilecord." The section po.sitively declares that Division ^.urts shall wr)^ be Courts of Record, but th.at the judgments of suyh Courts thall have the same force and eft'ect " as if they had originally been recovered in Courts of Record. The latter part of the clause was not iu the ''.■k<>.v .»: m '^^. m. vU' TIME AND PLACE OF HOLDING COURTS. [S. 8. Time and Vliicc of iii>I<ling Courts. 8. A Courl shall be holdeu in each Division (m) once in every two months, (k) or oftoner (o) in the disci-etion of the Senior or the acting County Judge ; and the Judge may appoint and from time to time alter the times and places original statute, but was enacted iu the Act of 32 Vic, cap 2.3, to remove the doubt that existed of the judgments of Division Courts Iniing of any higher value than simple contract debts : see remarks of Lord Campbell, C. J., at page 809 of 1 E. & B. ; and of Hagarty, J., at page 399 of 2.'> U. C. K. In (Jomant qui tarn v. Taylor, 10 L. J. N. S. .320, the County Judge of Middlesex expressed the opinion, that Division Courts are by this section, necessarily Coiirtf of liccord. With all due respect, it is submitted that the pliun words of the statute, declare Division Courts not to be Oourta of Ri'cord, but for the purpose of enforcing the judgments of such Courts then ^mtered, or that might subsequently be entered, parties should have the same rights «.s' in Courtu of Record. By the third section of the English Statute, 'J & 10 Vic, cap. 95, a consolidation of The Small Del)ts' Courts Acts, and from which our Act was in a great })art taken, such Courts were, according to judici.-vl interpretation, only made Courts of Record for certain purposes. Tlie concluding words of that section are, " and every Court holden under this Act .s/utW /x; a Court of Jicrord." Yet in Owens v. Breene, 6 Ex. 91 G. a County Court was held not to be a Court of Record to which a writ of trial could be directed. In Berkeleu v. Elderkin, 1 E. & B. 805, it was held that an action was not maintainable on a County Court judgment. If it liad passessed all the strength of a judgment of a Court of Record, an action woukl have bjeu maintainable : Dicey on Parties to action, 10. In AuHthi v. Mills, 9 Ex. 258, the authority of previous casea was recognized, and it was again decided that no action w,)ukl lie on a County (.'ourt judgment. Such is analogous to a judgment under our Act. In Mc- Plicrsunv. Forrester, 11 U. C F\. 302, it was /««W that no action was maintainable in Superior Courts on Division Court judgments ; and in Donnellij el al. v. Stewart, 25 U. C. R. 398, it was decided that no action would lie in either a Sujierior or County Court on a Division Court judgment. It is therefore submitted that the Legislature, in giving to judgments of these Division Courts the force and eilect of judgments of Courts of Record, was giving a certiunty and stability to .such judgments, which from the remarks made by Lonl Campbell in Berkele.ij v. Hhlerlcin, 1 E. & B. 805, and by Hagarty, J. in Donmlli/ et al. v. Stutxirt, it was feared they did not then possess, but not making tliem for all purposes Courts of Record. A judgment in a Division Court is a bar to an action for the same cause in any other Court : A ustin v. Milh, 9 Ex. 288. {m) The sittings of the Court must be held within the division. One object in establishing the Division Courts was to afford easy and ready facilities, and at small expense, for litigants to have their disputes settled ; and in furtherance of that view, the holding of the sittings within the division was no doubt con- sidered an essential ingredient. The Clerk's oftice must also be within the division : Rule 70. (n) There caimot be a literal compliance witli the Statute. That would be impossible ; but a substantial comi)liance witli it would be the holding of the sittings in each division six times during the year, and as nearly as possible, at regular intervals. (o) In cities and towns there are usually required more than six sittings a year ; and any additional number which tlie business may reader necessary ia properly left to the discretion o| the Judge. [s. 8. m) once in ;ion of the udge may uid places remove the any hijjher 1, C. J., at C. K. In Middlesex necessarily iliun words >ut for the that might n Courts of , cap. 95, a iir Act was rpretation, ^ words of a Court of leld not to lit'rkeleji v. nal>le on a idgment of on Parties .^ious cases 1 a County ;. In Mc- lintainable V. ,S ft' wart, >uj)erior or litted that force and tahility to u licrkcleif StiiUHirt, it I jMirposen e cause in )no oliject lities, and irtherance oubt con- '^ithin the would be ing of the i jjossible, sittings a ceaaary ia 9.] COURT ACCOMMODATION, {p) within such Divisions, wlien and at which such Courts shall he holden. C. S. U. C. c. 19, s. G. 0* The Municipality (q) in which a Division Court is Division Cimits held shall furnish a Court room and other necessary acconi- ucioinnio- niodation (?•) for holding said Court, not in connection Avith any hotel (.«). 3G V. c. 48, s. 362. K (li) The Judge, from necessity, or for the convenience of tlie public, might liave to alter the times and especially the places of ludding Divison Courts. The want of i)roper accommodation is frecpicntly a ground for the latter ; but nevertheless tlie altered time or place can only be for sittings vnthin the division : .see note (//() to this section. It is important that the place of holding the < 'ourt sliould be changed .as seldom as possible ; not only that the place of sittings should l)e well known, but because (questions of jurisdiction frecpicntly arise which have to be determined by reference to the primary (question — the })lae(- of sittings : see section (53. At page 312 of 7 U. C. L. J., it is said : "In determining then where the sittings of tlie (Jourt are to })e hcM, it becomes necessary to ascertain what building accommodation can be secured for the decent and orderhj conduct of busines.'i. If a Town or Township Council chamber, school house or other public building in a division, will be placed at the disixisal of the officers of the Court (Ui court days, lighted and warmed as occasion requires, it shouhl be chosen. The appointment of two places in a division for holding the Court alternately seems warranted by the very broatl language used in section (5 (now sectimi 8). "The Juilge may appoint, and froui time to time alter, the time and l)laces within such divisions where and at which said Ccmrts shall be holden;" and althougli such an arrangement tends to produce errors and confusion in tlie business, cases may occur wliere the public convenience can .possibly be served by shifting the places of sittings from one place to another and back again. It will l)e seen from the foregoing consideration that no general rule can he proposed as to the place where the sittings of a (,'ourt should be held in a division ; the (piestion iut it arises in each case must be settled with reference to the particular circumstances involved." ('/) See Municipal Institutions Act, s. 7 (Rev. Stat, page 1589.) (/•) This was a most necessary provision. The court-room should be situate ao as to be free from n<tise or disturbance, and otherwise reasonably suitable f(n' the purpose required ; due regard being had for the circumstances of each place. It shouM also, uiuler this section, be duly heated and lighted, and have 8uita))Ie accommodation for seating the officers of the Court, professional gentle- men, litigants and otljers attendiug C(mrt, What is "necessary accommodation" cannot be particularly defined, for in a city better accommodation wouhl be expected than in a newly settled part of the country ; but it might in general terms be said to be that proper and becoming provision for the comfort and ••onvenience <if those attcn<ling ('ourt, which, under the particular circum- stances <(f a municipality, its Council would be expected to provide for that purpose. (v) The chief object of the Legislature no doubt, was to prevent Courts being annoyed or disturbed by the con8e({uences of too easy access to a place where intoxicating litiuors were sold, or the rights of parties prejudiced from any such eause. l'roba)>ly a Judge would feel warranted in holding that not only does the section prohil)it the holding of Courts at licensed liouses, but at all tavtrns, ijms or liouses of pubUc entcitaiument. pi m »v?*< <- 1 \ I 8 LIEUTENANT-GOVERNOR MAY REDUCE SITTINGS. [s. 10. ■ ill ,1 ,-i If there bp no priipcr ri.urt-iooin, ike, the .lud^o iiiiiv IidIiI L'diiit in any suit- able jilace. ICxpcnscs foi- rent. Tho Lieiitcnant- (iovcriKir iiiav in cer tll: :HSl'.S, regulate holilinj; of (.'ouits. 2. In case a proper CJourt-rooin, and other necessary accommodation for th(! holding of a Division Court are not furnished by tho Municipality in which the Court is held, {t) i\w Judge may hold tho Court in any suitable place in the Division, or in any other Division of the County in which suitable accommodation is provided; (n) and th(; ov/ner, lessee or tenant of the building in which the Court is so held, shall for the use of tho said buildi:?g be entitled to receive ( *>) from the Municii)ality whose (hity it was to provide i)roper accommodation for the Court, the sum of five dollai-s for every day (lo) on. which the Court is held in siiid building. 37 V. c. 7, s. 72. 10, If the Justices of the Peace for any County, in General Session;-! assembled, (x) certify to the Lieutenant- (rovernov tli. ny Division of the County, from the amount of .;> .-■ (■moteness or inaccossiliility, it is ex- pedient that the Court siiould not be held so often as once in every two n:i u'-lis. (y) ihn Lieutenant- (rovernor in Council may order the Coin i to i^l' hek! at such pei-iods tis to him seems meet, and may revoke the order at ple^asure, but a Court shall be held in the Division sit leiist once in every six months. C. S. U. C. c. 19, s. 7 ; 38 V. c. 12, s. 1. {() Where one division comprises more tliau one municipality, there is no provision for i»i;iking any other than that in ' ' which tiie Court is held " contribute a share of the expenses. {u) This is an exception (through the necessity of the case) to the rule, tliat Courts must ])e held witiiin tlieir divisions, according to section 8. ().") Without this provision, the only course to compel a delincpient munici- pality to fulril its duty in this respect woultl he hy DKindaniMs: Dark v. The Muii'uip'd L'aiiiiril of Huron A- Bntrc, 7 C. l^. 378. In Lccn v. 77(f' Cdrjxiraliun of the Count;/ of Cdr/cfoii, 33 U. C. 1{. 405), it was luhl, that Avhere a statute compelled a municipality to afford suitabh; acconnuodation to a Comity Attorney and Clerk of the I'eace, an action Wiis maint;unable for the expenses he incurred in conseouence of the default of the Municipal (!orpor<ation. {w) The right and remedy being statutory, no more thiui this sum could, under any circiunstauecs, be recoverable : 33 U. C. li. page -ll!}. (,r) Tiiat is at the sittings "commencing on the second Tuesday in the months of June and December respectively in each year:" Kev. Stat. caj). 44, s. 4. It must be done during tho Sessions : In re Coleman, 23 U. C'. 11. (51"). (//) "Where a judicial district is extensive, and ixirtions of it but thinly populated, the public interests may recjuire the formation of a Court Division in a remote or isolated settlement, perhaps approachable only at some seasons of the year, while to hold a (Jourt in such division six times in the year would be uncalled for and unnecessary, the local magistracy, who have the best meaois [s. 10. H. 11.] SESSIONS MAY ALTER NUMBER AND LIMITS. 11. Tho Justices of the Peace in eacli County in General ^^'I'^^^l Sessions assonibknl, may, subject to the restrictions (z) in ;;';;'>;•;,';,';;,,, this Act contained, appoint, and from time to time alter the 'j'j'.'^'j'VJj'^ number, limits and extent of every Division, (a) and shall of knowing, are made tlic judges of this, and may certify as to tlic expedieney of reducing the inimber of Court sittings. The considerations upoii which this (piestion of expediency is to he resolved are : 1 - The amount of l)U.siness for the particuhir Court ; 2 -The position of the division as to distance from the more settled parts, /.r.,its 'remoteness;' and .S ltsuna]iproachal)lcness. notahsoluteiy of course, l)ut its comparative inaccessil)ility. If, then, the particular locality would furnisli only a few eases in the year, or is far .".way from the liusiness part of the County, or from want of roads or other causes, is accessible by the ordinary modes of conveyance only in midsummer or in sleighing time, these or any one of these facts wouhl form grounds for a certificate under the section, and tvvo or all three of them ])revailing, wouhl shew the inexpediency of ludding more than two Courts in the year. To occu])y the Judge's time in holding such Courts, would l)e to provide for the possible accommodation of the few at a certain loss to the many. ]t will be seen that Magistrates acting in ((^tuarter) Sessions are invested with very extensive power for tiie ajijiointing new divisions, thus calling Courts into existence, as well as for altering from time to time the number, limits ami extent of existing divisions ; and this power, like all jxiwers in law, must he didy executed at the times, and in the manner, and to the extent prescrilied by the statute, and ^Lagistrates have no authority (uit of the Act in respect of the Division Courts. ^So that if the power be not duly followed u]i in any actor order of Session, it would be without authority, and so void :" 7 U. i\ L. J. 177 178. Since the law allowing Clerks to enter judgments by default in certnin cases, there is not tho same reason as formerly for having so many sittings of the Courts. NoTi'.— In till' Counf.v of Wontwnrtli, \hc sittinj;s of live nf (lu' Courts liavi' bfcii vcdiicofl under tliis si'i-tioii to four a yi'ar. and ouo Court to live sittings annually, witliout any injury to siiit(irs, or ilinilinition of tlie liiisiiu:ss.] {z) Under the 8th section of the old statute (('on. Stat. II. '' cap. 10), a change ccmhl not be made by any less nundjcr of Justices than were present when the order of Sessions proposed to be changed, was made. This is not luiw law, but instead of it, notice nuist be "made and proclainu'd in open Coiu't, at the next previous sittings" of the Sessions : s. 17, sidj-sec. 3 (and see notes thereto). (a) "Justices of the Peace, in altering oM divisions or f(U'ming new, can act only in Ceneral (Quarter) Sessions. It would not be conipetent for Justices, however numerous, to meet in SjX'ckil Sessions and apjioint or alter tlie Court limits ; but a < Jeneral (Quarter) Sessicms may, of course, bo adjtnirned to a time anterior to the first day of tho next (ieneral ((Quarter) Sessions for the purpose of acting under this clause. The ])owor conferred is to be exercised by the Magistrates assembled in Sessions, in other words, the business is an act of the Court, and must, it is ])resumed, be done in open Court, and recorded as provided for in section 15 (now section 18). In the exercise of this duty, a large discretion lias been given to Magistrates as miinsters of tho law and cus- todians of the public interests ; and tho Legislature evidently contemplated open deliberate action at periods when the Courts arc most numei-ously attendeil. If the ap])ointment or alteration of divisions is to be made at a general inljourned Sessions, public notice should be given of the business to be tran.sactcd at the Court:" 7 U. C. L. J. 112. mm i vs*y: i^-' '■'1 h. '■ .' mi S': i mmmm S 10 COURTS NOT TO BE ALTERED WITHOUT NOTICE. [S. 11. w Hfisointions nmnber the Divisions befjiiuiinfj at number one ; (h) but no as to Diyi- resohitiou or order made under the provisions of this section KIOMS not * t", ,'"• aitiTwi shall be altered or rescinded, unless public notice of the till alter . , ' . * autitu. intention so to alter (c) or rescind is made and prochiimed in open Court, (</) at the next previous sittings of such General Sessions of the Peace. C. S. U. C. c. 19, s. 8; 38 V. c. 12, ss. 2 & 3. (/*) " Tn appointing or altering divisions, the limits ami extent" of every < 'ourt division must ho ascertained and lixcd with precision. This may be done l>y tracing the outer boundary in each case, or by setting out the Towns, Town- sliii)s or <letached parts thereof, intended to he within the divisi(m ; but wliatever mode of description be adopted, the estabhslied territorial divisions of the country, and the authorized sub-divisions and description shouhl be followed. Thus, a division may he composed of so many Townships, or of one or more Townships and so many concessions or lots from another Township, and that is the usual meth-"' taken for fixing " the limits and extent," and the one evidently contemplated by the Legislature ; for if we look at the 121st and I'J'ind sections (now lllth and 112th sections) of the Act, we see at once a difficulty in carrying out their jjrovisions, unless the established and recognized divisions are adhered to. The Jurors are to be taken from the Collectors' lUdla for the Townships and places wholly or partly within the division ; and for thia purpose, the Collector for each place, wholly or partly within any division, .<hall furnish the Clerk of the Court with a list of .Turors ; and under the Con- solidated Assessment Act, the numlier of concession, lot or other authorized designation, or the local divisitm is shewn on the roll in connection with the name of the party .assessed. Moreover, in reference to the execution of process from the Courts, the lot or concession, &c., where a party resides being known, mere inspection of the order appointing Court limits shouhl show the Court that has cogniz.ince where residence enters into the question of jurisdiction :" 7 U. ( '. L. J. 140 & 147. (r) "Every division, when appointed, is to be numbered let, 2nd, 3rd, and so on. There is no clue given in the Act as to which should be ' the first ' or number otifi division ; but in i)ractice the division including the County Town is generally named the first division, and the others follow either in the order of importance or extent, or arbitrarily, as the Justices may determine, the numbers being consecutive from number one :" 7 U. C. L. J. page 147. (d) "To some extent Magistrates are made the sole judges as to the fitness or expediency of things upon which they are .authorize<l to act ; but, like all other judges, they must be governed by a sound discretion in the exercise of thia authority ; and should they act corruptly, a criminal information would lie : see Cole on Criminal Information, 26. Abireover, as the power conferred is for the public benefit — relates to the administration of justice— in cases of neglect to use it within the time prescribed, or within a I'eascmahle time, where the statute is silent on the point, a mandamm would he granted, and the Courts would compel the execution of the duty imposed : see Tapping on Mandamus, 9. Should Magistrates exceed their authority, or use it in an unauthorized manner, a writ of prohibition would lie in certain eases ; but the peculiar and appropriate remedy would be to quash the order of Sessions : Archhold's Crown Office, 178. This, there can be no doubt, the Superior Courts of Common Law would do, if an order was made without jurisdiction, or if the conditions ])recedent to an order, as set down in the statute, were not properly comi)lied with. Magistrates cannot aa/uire any more than they can exceed the jurisdiction given in respect to the Division Courts, their authority iu respect ♦? 8S. 12, 13.] ESTABLISIIMKNT BY JUDGE OF NEW COURT. i% The Judge of a CViinty Court may, in his discre- tion (e), upon the petition ( / ) of the Municipal Council of any Townsliip or United Townships in which no Division Court has already been estaltlished, praying that a Division Court may bo established in and for such Township or United Townships, establish and hold a Division Court therein, and the Court so established shall be numbered and called the Division Court of the County in which such Township or United Townships is or are situattnl, taking the number next after the highest number of the Courts then existing in such County. 2. No business shall be transacted in any such Court until after the establishment tlunvot (g) has been certified by the County Judge to the Lieutenant-Governor in Cotincil, together with the petition ]»raying for the same, nor until after an order has been passed by the Lieutenant- Governor in Council approving thereof. 29 V. c. 31, s. 1. 115, Where a Junior County separates from a Senior County (A) or Union of Counties, the Division Courts of the United Counties which were before the separation wholly within the territorial lijuits of t\\e^ Junior County, shall continue to be Division Courts of tho Junior County, 11 KstiiMisli- lllr'lt liy llio (Siiiiity .IiiiIki' of ^ Divjsinu Couit ill Towiisliiiis, 1)11 pclitidii iif Tiiwiisliip (Jijuucil. Court must tic <M)I1- liiimd liy LiiMiti'imiit- (invrlllol- in Cuuiicil. On sppiira- tiull III' ■Iiniiiir from Hi niiir (•■ unity, I'niirts to CnlltilllU'. siiiii' till iillcit'(l liy iJL'Ssiulis. to these Courts being purely statutory: Stones' Petty Sessions 11. Tlie proper mode of (juashing an improper order of Sessions would seem to be, by writ of rertiornrl to bring up the order, with a view to its being quashed, — a rule to show cause being first issued, ealling upon the Justices to sliow cause why the writ should not issue : Archbold's Crown Office, 178, 187 ;" 7 U. C. L. J. '228. (e) It is not compulsory upon the Judge, but no doubt he would "establish" a Division Court under this section where the put)lic interests required it. The "discretion" should not be capriciously exercised. (/) This is a corporate act of the Municipal Council, and should be adopted at a regidar meeting, or at a special meeting duly cf)nvened for the purpose, of which due notice should be given (Rex v. Hill, 4 B. & (J. 441, jwr Bayley, ,!.), and should properly be attested by the corporate seal : Graut on Corpora- tions, 55. (f/) This presupposes the appointment of the Cleik and Bailiff and the place of sittings. The Court should as such be complete before the certilieation to the Lieutenant-Governor, but the transaction of business is suspended imtil approved of by him. (h) That is the County in which the court house and gaol are situate : Muni- cipal Institutions Act, sec. 33 (Kev. Stat. 1599). '.'J. km 044 \0 ■\ ■ .. >% ■ „ A / i ''!!'! |i|!(fr 1 2 SKPAHATTOX OF COUNTIES— WIIEHE SUITS TO BE CONTINUED, [s, 1 i. and iill in-ocoodin^.s (/) aiul JmlLjnionts (k) shall be Iiiul therein, and shall continuo |»ioc(M>din^s and jiidyincnts of tlio said Division Conrts res])ectiv(;ly ; and nil such Division Courts shall \n) known as Division Courts of such Junior County by the sann; nuniljors resj»(!ctiv(dy as they wort- before, until the Justices of the Peace of tlie Junior County, in Ceneral S((ssions assembled, (l) appoint the num- ber, limits and (extent of the Divisions for Division Courts within the limits of such Junior County, as jtrovided in the eleventh section of this Act. C. S. XJ. C. c. 19., s. 10: 38 V. c. 12, s. 2. 14. Where v(!r the Justices of the Peace of any County, in Ceneral Sessions asscMubhid, alter the numbiu', limits or extent of the Division Courts within such County, all pro- Oii altfr- aliiiii of Divisiiiii.s, .liid},'i' ti) (lircitt ill wli.il Court 1 • 1 \ 1 1 • .... )ircMiMMiiiij,'s e'(!ilinj,'s and juili^ments (lu) had in any Division ( ourt coiitiuudii. befoiv the day when such alteration takes ell'ect shall b;^ continued in such Division Court of the County as the Judge directs ; (/<) and shall be considered [)roceedings and (I) Taxation of coits would he a praccoiliiig iimler this aectiou : L'cij. v. The Loll Ion, Vhdthiiiii aiiL Doirr Jidilinii/ Co., L. II. '.i Q. Jl 170. ,So would a writ of revivor or «uggj.stiou: (Jii-ijrir v. Kcarhlc. ct a'. 41 IJ. Vj. II., page (JOI. This case was overruled, hut not on this point : see also Ifolini' v. <»'/'//, oCh. 1). !>0I. (k) The decision of the Jiulge oidy itecomes a "judgment" Avhen duly entered in the proeedure hook hy tlie ( 'lerk : Stnittoii v. Joliii.^on, 7 L. ( '. (J. 141. Tlu' proceedings of the Court can only l)e proved hy sueh entries (licij. v. Itoivliiiid, 1 F. & F. 72, piT Brainwell, 15. ), or a eertilie<l copy under see. H7, and cannot be contradicted even liy the evidence of the Juilge : Ih'inn v. lillcii, 11 (!. B., per Jervis, C. J., at page 443. Where the entry was, "struck out for want of jurisdiction, a disputed title having been sworn to," held, not a judgment: 'Tubhi) V. Stanhope, 5 t;. U. 790. (/) Thus by operation of law cert.aiu Court Divisions may be established, as for a ju >.ior county, and will continue as they were before the separation, until altered by order of Sessions. Hut Jis the nund)er, limits, and extent of Kuch Divisions, and the designation of the Courts, will in general but ill accord with the new order of things, tlie obvious duty of the Magistrates assembled at thejirnt (Jeneral ((j|,uarter) Sessions of the I'eace for the new (junior) county is to exercise the power given to tliem by the Act for the appointment of new <livisions for the (Jounty. The words " un/il the Justices," &c., jdainly assume that such i.s to ))e done at an early day; in the "meantime jjrovision is made by the clause for continuing the Courts as established and the business thereof :" 7 U. C. L. J. 1 70. {m) See notes to section 13. {n) It is submitted that the most convenient course ip to allow the proceed- ings and judgments to be contiuueil in the Court iii which they have been iiutcred or recovered. ss. l-'»-17.] f'LKRKa AN'D OFFirmS TO DKMVKR t'P PAPKRS. 13 IIIHl I jiidiTiiKMits of such Court (o). 0. S. U. C. c. 19, s. 1 1 ; ••'.S v. c. 12, s. 2. 15. In csiso ii Junior County ih scpanUod from a Union f,'/,;,'.,':,;";';,"' nf Coiiiitics. or tlid i>roc(!0(UugH of any of tlic •^''^■i'^*'^'^ )!!;',i','|.'i't,, Courts of a Senior County iiro tran.sfcrrod to any "f^"'"' p^'.',!!,',,,^ ,,^ Division Court within the County upon tho order of tlio •"'"'«" •lud^o, the Clerks or otlior offie(<rs of siu-li l^i vision Courts who hoM any \v -its or docuinents iippertiiinin^ to any sucli Courts or tho husiness thereof, sludl (leliv<M' U]) tlio same to sucli ])ersons as tho Judgo directs, and any person refusing to (Udivcr up the anmc shall be liid»lo to l>e pro- ceeded a,!;ainst (p) in the same manner as persona wrongfully holding papers and documents \uii- -r the provisions of the p. g u e, forty-eiglith section of chapter nineteen of the (Consolidated s,,.p.%.>\' Stutut(>s of Upper Canada.' C. S. U. C. c. 19, s. 12. (Ucv.atut.* Hi, If, after the seiiaration (7) of a Junior (V)untv from AitiTHoi.a- a Union of Counties, the territorial limits of any of tlu; .luuior iVoju Division Courts of the former Union are ]»artly witlnn the CDunty, •Junior and partly within the Senior County, all proceeduigs in (citiiiii commencc^l in such Division Courts of tht* foi'mev Union ((nitiiiiua shall ne continued to completion in tiie Court wiuM'e tlie county, proceedings were originally counneneed, (r) or in such otlu-r Division Court of the Senior County as the Judge tlnn-eof directs ; and the Clerks and other otticers of the said Division (Courts of such Senior County in posscssi(jn of any writs or documents appertaining to any such Court or to the business thereof, shall deliver over the same to the Clei'k of such Division Court of such County as" the Jiuig(^ thereof directs. C. S. U. C. c. 19, s. 13. 11, At the first sittings («) of tho Geueiml Sessions of Gennral the Peace for any Senior County, after the issue of any pro- seirior"' " (o) That is, the Court in which the Judge directs proceedings to be cohiLuiod. ip) Sec section 48 of Consolidated Statutes U. C, and notes thereon, inserted between ss. 4-1 and 4o of this Act. (7) See Municipal Institutions Act, a. 40, ct tir(/. (r) That is, iu tlie ( 'ourt from which the first process issued : Rule 10, {,<;) "Tho language of this section is, it will be noticed, exi)ress and positive. The Justices of the Senior C!ounty A7wt//(the direction is imperative), at the first sittings of the Court of ((Quarter) Sessions, appoint new Court divisions, &s> ." ■<•;• "IT'-'- p>',' m mm m u SESSION'S TO ItEOULAfE DIVISIOVS. [s. 17. County to clainalion (t) for .scpivratiu'' a Junior from a Srniior County, r,.(,iil;,t|. \ / I .-5 ^ J Divisii.iiM tlu! .InsticcH thnro nroHoiit Hliall a|)|)()int tlm luuulicr (not Cmiiiy jidir l(.ss than tlu'C(\ nor more than twolvo), tho limits and Bepiinitiijii. .... . . extent of tlur s()V(n'al DiviHionH within hucIi County, and till* timo when such chan<^o of Divisions shall take offtjct. 2. If tho Justices do not make such change at the first sittini^s they may do so at any other sittings {ii) of such Court. 3. No resolution or order made under the provisions of this section .shall \m altered or rescinchnl unless public notice of the intention so to alter or rescind is made and niisdliitiiitia ainl oi'ili lit IIS til Pivisions llllt to III! iilU'rcil till 1 • 1 / \ • /~i 1,1 • • • aftur initio! proclaimed (r) in open Court at the next previous sittings of such Ceneral Sessions of the Peace. C. S U. C. c. 11), s. U; .38 V. c. 12, fls. 2 ct 4. under section 8 (now secticm II); and, moreover, slinll appoint the time when such change of divisions is to take ettcct. The .luatices neglecting to nuike the change at the pni[ter time arc not indeed f'o»(7//(/f'r/ from acting; hut tiie per- miasioii to <lo so at ani'tlier sittings Mould not justify tlic omission to perform the (hity at the lirst sittings of the Court. Fiveiy oilier of Scs-simis altering Court divisions ought to be made to take effect at ;i future day, and so appear on the face nf the order. .Sudden cliangcs in the (Jourt divisions would produce confusion in the business <»f tlio Courts, and cause pubUc inconvenience ; and a reasonable interval should be allowed between the publication of tlic order and the time it is to take etVect, to enable pi-oper arrangements to be made for continuing to completion pemling liusiness, .and to give the otUcers of tlie Courts ah'ectcd, and to the jtublic resorting to the (\uirts. timely notice of tl\c change. That such orders were not designed by the h 'nisiaturc to come into force at once, may be collected from the lan- guage used in the 11th (now 14th) and 14th (now 17th) sections; and indeed the practical difficidty attendant on an abrupt change is so obvious that it need not be enlarged upon":" 7 l'. 0. L. .1. 177. (/) See Miuiicipal Institutions Act, Sec. 44, («) Without this provision, the change could not be made at any sittings but the Hrst after the dissolution : Jfcif. v. Murraij, 27 U. C. K. 134 ; Rfg. v. Orcat WcMern Itoihraii Com./xinn, 32 U. C. R. 506. (v) The giving of this notice is a condition precedent to the alteration of any previous resolution or order affecting the limits and extent of any Division Court : Miiem and Wonnacott, In re, 23 U. C. K. 611 ; GriffillM V. The Mutii- cipal'dii of Grantham, 6 C. P. 274 ; Shaw ft aL v. The. Corporation of Manvf,rs, 19 U. C' 11. 288 ; Askew v. Mannhuj H al. 38 U. C. K. 349. "Public notice " is to be made and proclaimed. The section does not say at what time or times during the Sessions that is to be done. It .should be given in the most public manner, and at a time when the information would likely be most widely com- municated. After the delivery of the charge to the (iraud Jury (see Rev. Stat., cap. 2"), s. 17 ; 31 Vic. cap. 66, s. 5, Canada), and again at the close of the Court, would, it is submitted, he the most appropriate times for making pro- clamation of such notice. The notice should set out particularly the changes or alterations proposed, and the "limits and extent of each division to be t w [h. 17. «H. 18, 19.] CLKHK OP THE PEACfl TO KEKI' UECOIID OE COl'UTS. IT* IS. The (!lork of tli<< Poiic, (w) in a book to l.c by him ;;;:;;;';,V;/ ''''' kept, shiill HH-onl the DiviHioiis (h'cbm-d iiud iippointctl, hihI !;','',;'|;[,'',''''' the times and places of hokling the; (Jourts, and the altera j',',',,',";'^'""*'' tioiis from time to time made therein, (./;) and h(> .shall foi'thwith (//) transmit to the Lieutonant-Uovernor a copy of the Record. (J. 8. IT. C. c. lU, 8. 15. THE JUDOE. County ('ii\iit It). The Division Couits shall be ])rcsidod ov(?r by the \,'i-ImI. " atrcctcd hy it ; fTancb- v. The Miiwr'ipnlUn of Mnrkham, 17 U, C. I{. 5(i2 ; //( n- Siniiiidin V. 77/'' Corjiorn/ioii i>f Clmlhani, L'l U- ' '. Ju 7"); Thi' VIi'kJ' SxpiT- intfiiilcht. III re Slicni/ v. Thrnslur ct al , ,<»» U. ('. II. r)()4. Till' iidtiue ;iiiil itw itrocljiination sli 'aid Ix' cftrofuUy entered }>y tlio Clork of the IV'ace in a hooli to )>u kept by him, so that in the cve)it of any change being niad(\ tiu'i'e would he a record of what was done ; also, that at tlie Miil)se(|iient Bittinu's (if (ieneral h'es.sions the .Tnstices of the I'caoe might see that the giving of notice had l)een complied witli. The order of Sessions need not recite the notice (In rr N<'.■^s ami Tin- Miiiiinpnliln of Snlljliif, Ki IJ. C. U, 408), hut it would be better to do so. Tlie order shouhl follow the notice in deliuing "the limits and extent" of the divisions aflected by it. (((•) As to appointment of this offit^er, see Rev. Stat., cap. 44, s. 11. {x) "This record may Ik; made by entering the ord'i's of .ScBsiona with a projicr cajition, shewing the Court at which they were made, and the nam<m of the Magistrates pr(!S(?nt. The jilacen of /lo/i/imj f/n' t'luirtu cannot be entered by the ( 'lerk of the i'eace till he is informed thereof Ijy the Judge, whose iluty it is, under the (ith section (now 8th), to appoint them. Ax to tin' funis if liiiliHiiii tin- Courts, it is not so clear what is the [)roper course ; it may be that instantly the entry is to l)e made 'once in every two niontlis ' in such and sueli Courts, and 'once in every six months' (or, on th<' ciisi mini he), in such divisions as the .Justices, acting under section 7 (now section 10), may certify to the expe- diency of holding a Court less frequently than once in every t<i'i> months ; or that the Clerk of the Peace lirst receives information from the Judge, and tlieu makes the entries. * * * 'pj^^, entries in this l>o(>k are of Buch a })ublic nature that an examined copy or extract therefrom, certilied as such, and signed by the Clerk of the Peace, would be admissible in any court of justice, or before any person having, by law or consent of parties, authority to hear, receive, or examine evidence:" 7 U. C. L. J. 177. (y) This means within a reasonable time : Rcq. v. The JhMicps of Worcester ^ 7 Dowl. 78!) ; Toms v. Wilson, 4 B. k S. 4;-).-) ; c'ostar v. IJit/ieruu/ton, 1 E. & E. 802 ; lie,/, V. Price, 8 Moore P. C. 203 ; fi'oherts v. Brett, 6 C. B] N. S .p, 631 ; In re Lake and The Corjwration of the t'oiutty of Prince Edward, 2G C. P. 173 ; Thomas v. Noke.% L. R. G Va[. 521. The words "immediate" and " forthrvith " occurring in a statute are not construed in their strictest sense, "on the instant," but mean with reaso)iable promptness, having regard to all the cinumstances of the particular case : Paley on Convictions, 4th ed. 45, and cases cited in note (a;) ; Maxwell on Statutes, 311 ; Masse;/ v. Sladen, L. R. 4 Ex. 13. The Clerk of the Peace is not obliged to notify the Lieutenant-Governor of anything but the acts of the General Sessions as to the limits of the different divisions, nor the orders of the Judge as to the times and places of holding the Courts ; and if the latter is done, nothing can be allowed the Clerk of the Peace for it : Poussett and the Quarter Sessions of Lambton, 22 U. C. R. 412, '!■•'■*■,' >)■ .'.■*tf. 'f'-''*'j m. F 16 COtJKTV JUDGES TO PRESIDE OVEIl COURTS. [a. 19. ■■■.. .1. •' 111,101' ■liid^'c to liold Divi- t'iou t.'iiiiits County Court Jiul^yos or Junior (z) or Deputy Judges (a) in their respective Counties, (b) C. S. IF. C. c. 19, s. 16; 40 V. c. 7, Sr/i.e</. J ((17). See Hev. Stat. c. 42. 2. Tlic ,)nnior Judge for any County Bliiill (sui)ject to any other arrangement from time to tinu; made with the Seiii(fr Jud™ or made bv the Jud''<'S of a County Court {?.) As to the .appointment of Senior or .Junior Judge, see Rev. Stat. c.aj). 42. They hold otheo during good heliiiviour, hnt suhject to l)e removed l)y the I/'eutenant-(i()vernt)r "for inaliihty, ineai)aeity or misbehaviour, established to the satisfaetion of the Governor in Couneil :" sec. 2. {(i) T))(! Deputy Judge hoMs Inn office during pleasure, and in ease of "the death, illiie.ss or aliaenee of the .ludge," lie lias authority to jierfonn all the duties of County Court Juilge: JJev. Stat. eap. 42, s. 7- He may also praetiso ilia profession: see. 8. Unlike the Senior or Junior Judge he is not cx-offirio a J. 1*. for "every County and jiart of Ontario;" sec. 10. The prohiliitiou on the apj)ointnient of Junior .Judges, unless tlie po])ulatiGh of the ( 'ounty or union of Counties exceeds forty thousand, under thi« Act does not apply to the ajipoiut- ment of a Deputy .Judge: see see. (1. He cannot give judgmciit alter the e.xpiration of the perioil for Avhieh he M'as ajipointed Deputy : llocy v. M'Fui-Uuk; 4 C. B. N. S. 7 18. (h) A ('ounty .Tudge is not .answerable in an action of tresi)a9s for an erroneous judgment or fiu- the wrongful act of his oiHcer, done not in pursualice of, though under color of, a judgment ; but he is responsiiile for an act done by his command and authority wlien he has no jurisdiction: llonhUn \. Sniitlt, 14 (^). \\. 841. li an order of cominitment were made under the judgment summons clauses, to any but the gaol of the County in whicli the pa'ty summoned resided or carried ou business, trespass would lie against the .Judge if Warrant issued by his authority, So a'so it would be a want of jurisdiction to summon a person under sucll circumstances : Jli. So,']. See also />i rr ])iilniaijc v. Jiidijf <if Lmln mill (I'n iii'il/c, 12 I'. ( '. li. :{2. He is also entitled to notice of action if he acted hmiestly believing that his duty as .Judge called iijion him to do so : Jimi/k v. Clirc, 10 C. B. 827. If a .Ju<lge allows a t'lerk to enter upon his duties without giving security, he is lial)le to any party grieved : Park'^ v. DacU, 10 C. P. 229. Want of jurisdiction nnist be made to ajipear to the Judge, and if there is no evidence of that either on the face of the jiroceedings {/foiililcii v. Siiii/li, 14 Q,. B. 8.")l, jicr I'atterson, .1.), or given before the .Judge, he is not liable in trespass {(hrjuini v. S)ii<'rt <t af, 18 V. C. U. 482). nor are the Otlicers of the Court acting in exi'cutiou of tlie order, Jh ; Andrcirx v. Mnrrh, I (). W. .'! ; Watsim v. lioili-ll, 14 M. & W. .'>7; T/ioiintsY. J/ii,l.soi,, 14 M. & W. 'Ar^.i, in Kx. Cham. l(> M. it \V. 88.1. "The .Judge of tiie Division Court," says Itobinson, C. .1., at p. 487 of 18 U^. T', ]{., "was bound to act upon what appeared before him, and cannot be made a trespa -ser by proof of facts given at any other time or in .•my other ( "ourt." At iiagc 48i( of the same report, IJurns, J., s.ays : "It appears t.) me the ])laiutiH', by sutleiing judgment by default against him, is not in a position to dispute the jurisdiction of the Court. If the want of jurisdiction was apjiarent upon the jtroceedings, then (if (jourse it would be open for him to (pu'stioii the right ujion any steps taken ujion a proceeding in that manner, as roniin von jndke ; luit 1 do not think he can questiiui the jurisdiction, by bringing evidence to disjiute the iilacc where the c.uise of iiction arose in whole or in part, after he has acquiesced in it by sutl'ering judgment Jiy default ; and in an aetiou against the Judge, the Judge of the County Court would be in a serious jirediea- inent if he were obliged to be prepared with evidence to sustain his judgments [a. 19. 19.] AUTHORITY AND LIABILITY OP THE JUDGE. 17 1110 the itioii to liparcnt tii)ii tlic mil lion vidence t, after 1 iiotiou iredica' Igaicnts uirainst persons simply because it be shewn that the parties sued do not resid»> w''ithiii Ilia ( 'ouuty. The urt'ect of what tiie jilaintitt contends for in this case vould oiiinpel tlio .Judge to do that, if auoh a i>roposition be established. The plaiiititf should liuvu appeared to the siimmous, and have r.-vJsed the ([uestion. and t!ie .Judge would then have tried the (juestion of jurisdiction ; or if he did not wish the Judge of the (J(Uint.y ('(uirt to have determined the point, he might liave applied to one of the Superior Courts for a prohibition." As regards Judges and judicial officers, the general rule is, that if they do any act l)eyoud the limit of their authority, causing injury to another, they are lialile for it ; l)ut if the act Ije done within that limit through an erroneous or mistaken judgment, they are not liable : DonwcM v. Impeii, 1 B. & 0. ItJS ; Gahiin v. LojiUc, "> Monro' P. C. 382 ; (niriier v. (Juh'man, 1!) C P. lOG. Trespass will not lio tor a judicial act done without jurisdiction, unless the Judge knew or had the means of knowing of it : Calihr v. Hnlkctt, 3 Moore P. C. 28 ; Garner V. a>l<'ni(iM, 19 0. P. at page 10!) , Kemp v. JVcril/r, IOC. B, N. .S. oiii, and oases there cited; Davis' < !. 0. Acts, 3rd Kd. 180, H acq. Judicial functions cannot bo delegated: Amlrcw.'< v. Marrix, 1 (^). B. 3. A Superior Court can order a County .ru<lgo t(» jiroceed with the hearing of a case, but cannot deal with ;uiy order which he may make : C/inrc/iirnril v. Coleman, L. U. 2 Q. B. 18. The signature to a .Judge's order need not be by the hand of the Judge himself. If impressed with a stamp by the Ch'rk in his presence it is good : Bladen v. J.iiirrei.rr, L. R. Q. F3. 37-4. Words spoken Jjy a County .Judge sitting on the trial ot a cause, though irrelevant to that matter, are not .actionable : Scoff v. Stunstield, \j. Iv. 3 Ex. 220. No action lies .against the Judge of a Superior ( 'ourt for a judicial .act, though alleged to have been done njaliciously and corruptly ; Fnni V. lihrkliiini, 3 B. & S. ".70 ; Ward v. Freeman, 2 Irish C. L. R. 460. A Judge cannot try a cause in which he is interested ; The Queen v. Meijer, 1 (). B. J>. 173. But even in a case of imputed interest he is not incapacitated from making an order if refusing to do so W(mld lie .a denial of justice : Grand diiurf'icn Canal Coiiipaiii/ v. I)lme/<, 18 L. J. Chiin. 30.") ; 19 L. J. Clian. 34.'>, s. c. 'I'lic Lord Chancellor was held disqualilied to hear a case in which a company were plaintiti's, owing to the fact that he had an interest as a shareholder : Dime" V. Granil Jinirtlon Canal Compnnij, 3 H. Ij. cases, 7'>i) ; see iilso London iL' Nortli We-ffern JlaUmtij Conipanji v. Lindnai/, 3 Mact^ueen H. L, „ase8, 99 ; Medwin, ex parte, 1 K. &'B. 009; Jieif. v. Canihridqe (Recorder), 8 E. & \^. 037 ; A'-'/, v. The Jiistiee.^ of S,{[fha; 18 g". B. 410 ; Rei/. v. Hand, L. R. 1 Q. B. 2.30 ; Hai/man V. The Gorernorn of limjlii/ School, L. R. 18 Kij. 28 ; Biijeloio v. liiijelow, P. R. 124. A counsel in a cause, 1)eiiig afterwards raised tr. the Bencli, is not jjre- cluded from taking part in the hearing and discussion of that cause, but he may properly decline : Thelliixxon v. liewllesham, 7 H. L., cases 429. I'rivate com- munications to a Judge upon a matter publicly before him are highly improper, and amount to contempt of Court : Dijce v. Sondire, In re, I Mao. & (J. 110 ; 13 Jurist, ».")7, s. c. An attachment will not lie ag.ainst a County Court Judge for not obeying a rerf'iorari, unless it olcarly appears that he a<'ted contumacicmsly : In re Jtidije of y'laijara JJistricf, 3 O. S. 437. Nor can he be arrested on nusnc; or final process: Adaias v. Ackland, 7 U. C. II. 211. A County Cou -t Judge cannot refuse to attend uiuler a subpiena ilncex hcitni to produce a deed, on the ground of private busuiess, or that he obtained the deed or became possessed of his information as an Attorney, or th.at he had a lien on the deed or was entitled to witness fees as an Attorney : Ihudman v. L'iren, 27 U. C. R. 17<>. He cannot directly or indirectly practice as a Counsel, .Vttorney (u- Solicitor, Notarj' Public ur Conveyancer, under penalty of forfeiture of oltice and further penalty of ^400: Rev. Stat. cap. 42, s. o; see also Allen </ni tain. v. Jarris, 32 U. C. R. M. Change of venue was ordered in ejectment where County Court Judge was de- fendant, where plaintiff might otherwise have proceeded under Overholding Tenants' Act; Anon, 4 P. R. 310. Where a refereuoo is made at Nini Priiis ^M^ mi mm wm ^'^■.^\' t'*..*.'...'* I >;■ .'.'Hi K- iTii 'If '>>''' 18 JUDGES AND DEPUTY MAY HOLD COUUTS. [s. 20-. I', Senior Judge to liDlil Divi- Hioii CuiU'ts ■wlii'ii expedient. Will) to \nv- side in ciisi! of illiie.ss or iilpsenee of Judge. District (c) wliich includes such County) preside over the Division Courts of the County. 40 V. c. 7, S<;/ied. A (67). ,yee ;}2 V. c. 22, s. 4 ; 30 V. c. 8, s. 47 ; 37 V. c. 7, s. .58. 3. The appointment of a Junior Judge shall not prevent or excuse the Judge of the County Court from presiding at any of the Division Courts within his County when the })ublic interests ((/) require it. C. S. U. C, c. 15, s. 7. *Z0. In case of the illness or absence (e) of the Jr Ige, a Judge of the County Court (/) of any other County may hold the Court, or the first mentioned Judge may appoint some baii'ister of the Bar of Ontario to act lus his Deputy ; and the barrister so appointed shall, as Judge af the Division' ti) a County Judge l)y name, tliougli liis description as Judge is added, he is entitled to his fees as arl)it'ator : Wand v. Fonkr, 1'. 11. 175. As to the effect of tlie death of Judge on cases pending, see L(^Me v. Eittmuiin, 25 IJ. (1 11. 243, and //<»('// V. M'Farhiic, 4 C. 15. N. S. 718 ; Appdbc v. Baker, 27 U. CJ. 11. 486.. See Siiii/h v. IlitiDicji, 12 U. C. II. (Kil, as to iiTeguIar practice of Com' ty Judge concerning Term husiness. {c) See Kev. Stat. caj). 42, s. IG, d .wij. (d) Should tlie Junior Judge be sick, absent, or otherwise unable to hold the Division Court, it would be the duty of the Senior Judge, luider this subsection,^ to hold such Court. ((') Ihider the Consolidated Statutes of Ui>i)er Canada, cap. 19, s. 17, the absence of the Juilge was reipiired to be " unavoidal)le." It is not so nftw. It is not iieeessary that any order made l>y the Uarrister so appointed Dejjuty Judge sluuihl shew the reason for such apiwiintnient. The maxim, "all acts are presumed to Ije rightly done," ai)plying : Jii re J/aivkhis, 3 P. R. 239. ( /■) By Rev. Stat. cap. 42, s. 13, such Judge "may, if he sees fit, iierforin any judicial duties in any ('ounty other tlian liis own, on l)eing reipiested to do so by the Judge to wlioni the duty for any reason belongs." By the ir)th section of the same statute, full jjower and authority is given such Judge to perform all judiciiil duties which could have l)een performed by the .Fudge of the County, so that in that ease another County Judge could act whether there was "illness or al)sence " of the Judge or not. By section 11 of th« Act just referred to, in such a ease, as well as in all ithers, the Junior Judge would have oipial powers. It is submitted tliat "abscsnee" in this section does not mean being ;it of the County, but absence of the Judge from the Court. In tlie event of there being a Junior Judge of a ('ounty, does the " illness or absence " apjily both to the Judge diid Junior Judge (See Hev. Stat. cap. 1, s. 8, 8.S. 23, Interjiretation Act), and if not, to which one of them? We think, in view of suh-seetion 2 of section 19 of this Act and sec. 11 of cap. 42, it in clear tliat the Junior Judge w(mld have power to appoint a Barrister as his Deputy to hold a Division Court. The Latter is to "have all the powers ami privileges, and be svbjcet to all the duties vested in or impoi^ed hif Uw OH the Jiiihje 1)1/ irhoiit he has been ai)pointed." When there is a Junior Judge, he shall (subject to any arrangement with the Judge) premie over the Division Courts. A duti; is therefore "imposed by law" on the Junior .fu'ige, and as such is imposed on him, a reasonable construction would be that he has, in the event of either coutingeuey mentioned iu the statute, ss. !1,22.] LIRL'TSVA\r-GiOVERKOR TO BE NOTIFIED. 19 Court, during tlie time of liis appointment, (r/) have all the powers and privilcj^os, and he suVyect to all the duties vested in or iini)aspd by law on the Judge by whom he hiis l)een nppointed. (/«) C. S. U. 0. c. 19, s. 17 ; -iO V. c. 7, Srhecl A (GS). *Z\. Tl<e Countv Judge (i) so apiiointing or the barrister T-ii''it<tnnnt- SO ai)i»ointc-d Dei)uty sliall forthwith (k) send to the Lieu- '';; ""tiik'd tenant-CJovernor notice of such appointment, specifviug the "K'ntof name, residence (/) and profession of such Do[)uty Judge, and the cause of his appointment. 0. S. U. (\ e. 19, s. 18, ?JI?. ^0 such appointment shall be continued for more Aiipnint- ' ' _ _ iiitMit, how than one mouth (//;) without a renewal of tlie like notice; I'm^'to continue. and in case the Lieutenant-Governor disapproves of such the power of ai)pointing a Deputy to hold a sitting f(tr him. A dilFerent con- struction woulil leail to tlie auoinaloiis position tliat a Junior Judge doing all the work of hoth County and Division Courts, owing to the absence of the .Fudge on leave or through illness, couM not appoint a barrister to hold a Division Court for him ; nor even if, in sueh a case, the Junior were himself ill, could an appointment he made by him. This might work great injustice to suitors, which Courts should avoid: per Morrison, J., in Aj>j>ill/c v. Baker, '27 U. C. K. 489. (;/) A rpiestion frequently arises whether a Deputy Juflge, appointed under this section, can reserve his decision under the lOlJth section to a sul)seipient (lay, or whether his autliority ceases at the close of the sittings. It is sub- mitted tliat he can. He has luuler this section " all t' powers and ])rivileges " of the . fudge, and, by tiie lOOth section, judgment delivered by the .ludge on a subseipient day "shall be as etfectual as if remlered in Court at the trial." If lie possesses all the powers, it w(ml(l be a fallacy to say he could not exercise them. The death of the Judge ends the authority of such a Deputy : Jloey v. M'Furliuie, 4 C. B. N. S. 718 and 732. {/i) The appointment had better be in writing, but is it necessary to be so? See Hex V. JaMiri'n of Salop, 4 H. & Aid. (»2(>, per Hay ley, .1., at page G2!), and Jiex v. Jiifitice,i of Surrey, ,'j li. & Aid. 539, ]>er Abbott, C. J. (() The Judge usually sends this notice. He is best able to give "the cause '" of such appointment. (k) See notes to section IS. (I) See notes to section ()'2. A person may be said to have more than one residence. If he have houses at ditt'ereut places, at each of which he keeps an establishment, such nuiy be called his residence, thougli he may not go there for years. But the meaning of the word rexhiener is ditlerent from domicile, for an infant has the domicile of his parents until he attains twiuty-one years, and (Iocs some act to ac([uire a new one, and thus his domicile may be in a country in which he has never j)ersonally been ; whereas residence implies i)ersonal presence at some time or other ; Walcot v. Buffield, 18 Jurist, 570. (m) This is a calendar month: Kev. Stat. cap. 1, s. 8, s.s. 15. The day tm which the appointment was made would be included: Ledar v. Garland, 15 Vcsey, 248. y^i-r *.;• 20 CLERKS, DEPUTY CLERKS AND BAILIFFS. [sS. 23, 24-. appointment, lie may annul the same, C. S. U. C. c. 19, S.19. Clerks or ^J Jn case the Juflije or the acting Judtje, (n) from Deputy . . . ? . Clerks may iHnoss or any casualty, (o) docs not arrive in time or is not adjourii ... able to open a Division Court on the day appointed for that purpose, the Clerk or Deputy Clerk (p) of the Court shall, after eight o'clock in the afternoon, by proclamation, adjourn the Court to an earlier hour (q) on the following day, and so from da;y to day adjourning over any Sunday or legal holiday, (r) until the Judge or acting Judge arrives to open the Court, or until he receives other directions from the Judge or acting Judge. C. S. U. C. c. 19, s. 20. Court if .Juilt,'t; ilocH nut arrive in time. THE CLERKS AND BAILIFS, &c. to have °^ ^4t For cvery Division Court there shall be a Clerk and BaHiirl!" ^ Bailiff or Bailiffs, (s) who shall be British subjects, and (n) This means the Judge of any other County, the Junior Judge or a Deputy appointed under section 20. {(>) The ditferencD in tlie words used in section 20 and this, is to be observed. "Casualty" here may, we submit, be taken to mean some unforeseen accident or otlier cause preventing the Judge's attendance. (p) See section 3i). ('/) ('. e., than eight o'clock p.m. (r) By section 8, sub-section IG, of the Interpretation Act (Rev. Stat. cap. 1), this includes "Sundays, New Year's Day, (iood Friday, Easter Monday and (/hristmas Day, the Anys appointed for the celebration of the birthday of Her Majesty and of her royal successors, and any day apixtinted by proclamation of the (TOvernor-(Jeneral or Lieutenant-( lovernor as a pul)lic holiday or for a (Jeneral Fast or Thanksgiving." A judgment entered on any of such days would perhaps be ([uestioned : Truiit d- Loan Coiiipamj v. Did'non, 2 L. J. N. S. KiG ; Connellii v. Bronncr, L. R. 1 C. P. 557. As to holding Division Courts in Territorial Districts, see Rev. Stat. cap. 7, s. 18, ct m'(j. (.s) In the administration of law it is necessary that there should be officers for its execution. This section renders it imperative that there shall b - a Clerk and "a BailitiOr Bailiffs" for every Court. The qualification is that each be a British subject. As a general rule, all persons of sane mind are capable of holding office : .2 U. C. L. J. (53. A Clerk and Bailiff couhl not be in the same person : 2 U. C. L. .1. 04. " Want of skill is either implied hy law, as in the case of minors, or is apparent in fact. Persons under 21 ycivrs are deemed by law incapable of the skill necessary in such an office" : 2 U. C. L. J. 64. "Skin and ability in f'aet are matter of determination for the Judge : " lb. ; see also 8 IJ. C. L. J. 34. If more than one Bailiff, each should do his work indepen- dently of the other: 2 U. C. L. J. 64, and cases there cited, where a fonn of appointment is also given. At page 108 of 4 U. C. L. J., the following admir- able advice is given : " If it be the duty of the Judge to select men fitted for s. JD.] DUTIES OF CLERKS AND BAILIFFS. 21 same I i I sliall respectively perform the duties (t) of their office as J?;^|;!'; ^,^ ^ regulated by Act of the L:;gishiture and by Rules or Orders B""'"'*. made by the Board of County Judges. C. S. U. C. c. 19, .s. 21 ; 32 V. c. 23, s. 23. 25. ' No County Gouft Clerk (? *) or ^, practising barrister wim.iis- or solicitor (v) shall be appointed Clerk of a Division Court, ''"" ' ^ ' C. S. U. C. c. 19, s. 22. the offiee as well as they ran be in such cases at first, it can be wo lees eo to see that they take measures to cjualify themselves more fully, and to keep pace witii the continual develojjment of the laws that they assist to ail- minister." (<) A refusal to do so without a colour of right would be a misdemeanor, punishable with fine or ii mrisoument, or both : lloscoe's Crim. Ev., 8th Ed., SI I. So also would acts totally illegal committed by a Bailiff under color of his ofhce : Idem, tilO. (u) Appointed under Rev. Stat., cap. 43, sec. 4. ((?) As a rule of exposition, statutes are to be construed in reference to the ^•irliiclples of the Common Law, " for it is not to be presumed that the Legis- lature intended to make any innovation upon the Common Law further than the case absolutely reiiuired : " Potter's Dwarris on Statutes, 185. It is against principle and authority to iufriuge any further than is necessary for obtaining the full measure of relief or benefit the Act was intended to give : jtt-r Draper, O. J., in Kraemir v. Glana, 10 C. P., 47"). "When a statute alters the Connnou Law, the meaning shall not be strained beyond the words, except in casus of pahlk utUitij, when the end of the Act appears to be larger than the enacting words" : Dwarris, 180. Again, at page 187, it is laid down that "This cause and reason of the Act, or, iu other words, the mi'<c/ui'/ rci/uiriinj a rcini'dj/, may either be collected from the statute itself or discovered from circumstanees e.xtrinsic of the Act." The general principles of constmction of contracts -•should be applied in construing statutes : Dwarris, 178. Then what construc- tion should be placed ou the jjrohibitive words of this section? How long must a Barrister or Solicitor have ceased to practice before be is eligible for appoint- ment? the day previous, or when? Can an Attorney be appointed durmg the furreijcy of his certificate, and does the existence of that prevent his app<dnt- ment ? This is a Statute in restraint of a citizen exercising a calling for which he is otherwise qualified. It should not, it is submitteii, be extemled beyond its object and scope, being to a very great extent akin in principle to Statutes or coutracts in restraint of trade (Harrison's Municipal Manual, notes to section .S84: AUmpp v. Whcatrro/t, L. li. 15 Kq, 59), but should receive that conKtnic- tion as the "mischief requiring a remedy may demand." Now, the " mischief " which the Legislature meant to provi<le against M'as, that a practicing Barrister or Solicitor might use his position as Clerk to further his pndeseional interests. In view of the principles of constructitm which (tbtain in such cases, it is sub- mitted that it does not matter how short a time before the appointment of a Barrister or Solicitor to a Division Court (Uerkship, he has ceased to practice bis profession ; and if from the moment before his appointment he declares his intention of not practicing, and acts accordingly, then he is not prohibiteil from accepting. It is further subnntted that the tact of his certificate being in existence makes no difference. That confers a personal right which he might waive ; Broom's Legal Maxims, ^•v •■.•■■' .-il '(i^-.^* '.■ >,r ^ ■./,{*■' / mM :M MO OFFICEUS AND THEIR SECUUITIKS. ■■:3 i [ss. 26, 27. jiidcro to ^(» 'f ije Judnre sliall (lo) from tinio to time (x) fiT)i)oint (y) rmiK.vc and may at liis i^lejisiiro remove (.-.) any Cllerk or BuiliiF. Clerk and '' ' \ ' J uuiiitts. 0. S. U. C. e. 1<», s. 23. Cli'iks and Uiiilifls of Uivisiiiii Couits to give .si'cunty. Secuuities, 31, Subject to the provisions of section twenty-four of T/ie Act respecting rtthlic Officers (a) every Clerk und Bailiff of a Division Court shall give security, (/;) by a covenant (c) according to the form of the Schedule to this Act, or in words to the same etfect, {d) with so many sureties, (e) (»•) Iiiii)enitive on tlic Juilge, and if he omitted to make appointment in tlio event of a vacancy, iiKtndniiiiiH must lie. It would go to eommand tlie per- formance by tlie .Indge of a puhlic <Uity, for which there is no s])ecitie remedy r Tai)ping on Mumluviux, page \'l ; ii'c/. v. W. li. Jtixtia's, 1 IS'ew Sess. (Jas. •247. (.;•) See the cnnsti-uction placed on a statute where such words Avere omitted : y<ul.wn\. Jarrui, 13 C. l\ 182. (//) This means also the power of removal: Inter})retati<m Act, s. 8, s.-s. 2.")- See excellent article at i)age 03 >.'t sa/. of 2 U. C. I^. .1. as to appointment of Bailiff and form of appointment ; and further, at pages 34, 121 & 202 of S U. C. L. J., will be found an ecjually instinictive article oil the ap}X)intnient and duties of Clerks and Bailiffs. At })age 202 will l)e foun<l a form of ai)point- ment of Clerks. It is submitted that the seecmd order is unnecessarj'. (,-.) Jndefjendently of the Interpretation Act, express power is given to tho Judge to remove any Clerk or Bailiff at ])leasure. Although no Judge would remove an officer without cause, yet he can <lo so. He is not bound to give any reasons, take any evidence of misbehaviour or neglect on the part of the- othcer, or assign any cause for his action. This subject will be found fully dis- cussed in the case of Dr. Hay man against the (lovernor of Kngby School r L. II. 18 Eq. 28 & 08, and the cases there cited ; and Oki/iukI v. AV/.so«, L. K. T) H. 1,1. 030. See also Jfmnnictiid v. McLmj (in Appeal), 28 U. C li. 401^, and notes to secticn 12. («) See Kev. Stat. cap. 15, ss. 24 27 inclusive. {!)) "The word KiruvUy shall mean sufficient security ; and where these word.* are used one person shall be sufficient therefor, unless otherwise expresslj required :" Itev. Stat. cap. 1, s. 8, s.-s. 18. As to the object of this security, see 8 U. C. L. J. 203, and 9 U. C. L. J. 9. (v) It is a joint and several covenant, and enuros to the benefit of any persoi* "suffering damages by the default, breach of duty, or misconduct" of the Clerk or Bailiff' : sec. 29. All can be sued together, or any one separately, on this lovenivut, but iuiy two uf them caimot be sued m the one action : Dicey ou Parties to Action, 11, 12. (d) A substantial compliance is all that is r€(piired : Be Alli-wn, 10 Ex. at itage u(>8, ncr Varke, Baron ; R('(j. v. Jfi/ilr, 7 E. & B. 8r»9 (note) ; EtpjiiKjItm v. Lklijield (Mayor, &c.), 5 E. & B. 100 ; liaj. v. JuMint^^ of Cltestun-, 3 D." iS: L. 337 (e) "The word .siurt'u'fi shiUl mean sufiiciout sureties:" Interpretation Act»- 8. 8, s.s. 18. The contract or undertaking of a surety is a contract by out- person to be answerable for the payment of some debt, or the performance of some act or duty iu case of the failure uf another person, who is himself i^Krimarilji •r. M ■■■5!% i. 27.] SURETIES TO BE FREEHOLDERS AND RESIDENTS. 23 l)ein<,' freeholders (/) and residents (rj) within tlio County, (A) J'';;;^,'"^^ and in such sums, (i) as the County Judge {k) directs, (/) and, under liis hand, (in) approves and dechires sufficient, (n) C. S. U. C. c. ] 9, s. 25. lonsiUIe for the if such deb th rformaucc of the act ^ duty Kiel Kd. lanls, lytneiit i Addi.son on Contracts, crip. V.; Mirnn- v. Kh'tu, 17 C 1'. -!'.'{, /"r C. J. ; ('r!j>j>.t V. Jfniinoll, 4 li. & S. 414, and the notes to the Anier. (f) A freehidder is one who is |)03^e3se(l of au estate for life or in feu siniph) in land, or in some interest issuin',' out of or annexed to laml : W'liarton, ',V1\ . Alth()uj,di tlio sureties are not frejludilers of tlie County they are liable : Park-^ V. Davis, 10 C. P. 229. (//) In the case of Ihx v. liihahitunlx NvrHi Cnrri/, 4 B. & C., at l)agc OiVJ, Hayley, .1., said : " What is tlie meaning of the word rcshlt'.i .' I take it that that wonl, where there is n(jtiiing to slle\^■ tliat it is used in a more extensive sense, denotes the place where an individual eats, drinks and sleeps, or where his family or his servants eat, drink and sleep." "The term resident does not iiecess-irily import permanence, nor yet any definite stay:" jx'r Draper, C. J., in Ln /'oiii/ev. (Irand Triinh Jt'iiUinti/ Cui)ip<iiii/, 2(5 IJ. C H. 487 ; /« re Ldt/oiireur V. Sii/ter, (5 P. 1{. at page .S(>7. Sureties who are non-residents are nevertheless lialde: Parks v. Diiiis, IOC. V. 22'.}. They are also liable altliough their principal has neglected to e>:eeute! the covenant: Milh-r v. Tunis, U) C. P. 42.S. So also are they liable if the covenant has not l)cen tiled : Parks v. JJaris. 10 C'. 1'. 220. (/() This simply moans that the sureties should be " freehcdders " residing within the Count}'' or union of Counties, as the case may be. (i) It is the duty of the Juihge to lix tlie amount for which the sureties become bound, bef(jre the Clerk or lliilitf enters on his duties : P(fr/>-'iv. Daris, IOC. P. 229. And if the Judge should fail to perform his duty under tliis section, an action is maintainable n,gainst him, but not unless there is actual damage : Parks V. Daris, snjira. {Ic) That is, the Senior .ludge wliere there is a .Junior Judge in the County. (/) "In practice two sureties are commonly required to join in the covenant, but where the amount is large, it is not uiuisual to have three or four. The sums in whieh the sureties are to be bound will be regulated by the probable amount of business in the particular Court :" 8 U. C. L. J. 121. It is the duty of the Judge to tix the ninnber of sureties : Parks v. Davis, 10 C. P. 229. {)ii) The Judge usually approves and declares the covenant sufficient, in his own handwriting, but it could be done iu his name by the hand of another in bis presence : lilndes v. Lawrence, h. R. 9 Q. B. 374. (n) The Judge should carefully examine the covenant to see that it is a sub- rtt.antial (10 (3. P. 424) compliance %vith tlie statutory form. It is submitted that there should be an affidavit of execution of the covenant and of justihcation of the sureties. The following are given as forms of both, for either Clerk or Baililf (Rev. Stat. cap. 63, g. 9); < 'ounty of I We of the of in the County To wit. ij of and of the of in the County of within named, severally make oath and aay : 1, And first, I, this deponent (naniiii;/ him), for myself, say, that I am a freehohler and resident within the County of 2. That I am one of the sureties mentioned in the annexed covenant, for the due performance by [name of the Clerk) of the duties of the office) ol Clerk of the Division Court for thg County of p.. •'1 '■ 'I i 24 COVENANT AND AFFIDAVIT OF JUSTIFICATION. 13^! .1 -i Ui [a. 28. "■'bail ill''"'' ^^' ^-foi'G (o) any such Clerk or Bailift" outers upon the tuttisouiiis duties of his office, the covenant of himself (p) and sureties, 3. That I reside at in the aaiil and am worth real i>roi)urty to the amount of dollars over and alK>vf all encunihranoes, and over and above what wll jtay all my just debts, and every other sum for which I am now bail, or for which 1 am surety. 4. That I am not surety for any public officer except for the said 5. And I, the said {iianunii film), for myself, say, that I am a freeholder and resident within the County of 6. That I am one of the sureties in the annexed covenant, for the due psrfonnance by (iimne of th- C"ik), of the duties of the office of Clerk of the Division Court for the County of 7. That I reside at , and am worth real projierty to the amount of dollars over and al)ove all encumbrances, and over and al>ove what will pay all my just debts, and every other smn for which I am now bail, or for which 1 am surety. 8. That I am not surety for any public officer except for the said The alx>ve-named dei><>nents (iuidi'iikj t/iciii) were sevenUly sworn before me at in the County of this day of A.D. 18 . A Coiamissipner for tal-iuij Ajfulavits in and for the Countij of County of To wit. of in the County of I, of the make oath and say : 1 . That I was personally present, and did see the foregoing covenant duly signed, sealed, and executed, by (itamimj tfwui all), the obligors therein named, on the day of the date thereof, at 2. That I am a subscribing witness to the execution of siich covenant, and the signature " " tliereto affixed is in my OAvn proper handwriting. 3. That I am personally acipiainted witdi the said {nainhifi the sureties), who severally reside at the of in the County of Sworn, &c. (o) "The covenant so given must be approved of by the Judge, and be filed in the office of the Clerk of the I'cace for the County before the Biiiliff can enter on the duties of his office, or can be said to be completely appointed ; but even if he M'ere to act befoie such an ai>proval, and in case such approval were not afterwards obt.iined, his acts would be good for some purposes : I^d. Raymond, (501 ; Cro. Eliz. GGD, pi. 13, 2, s. 184; 2 Inst. 381. In case any of the sureties in the covenant die, remove out of I'pper C!anada, or become insolvent, it is obviously the <luty of the Bailiff to inform the Judge of the fact ; and should the officer, after receiving a fornjal notice thereof from the Judge, neglect to renew his security within one nnmth, he incurs a forfeiture of office :" 2 U. C. L. J. 65 ; see also 9 U. C. L. J. <). ip) Properly the covenant should be execute<l l)y the Clerk or Bailiff; but his »)mission to do so does not discharge the sureties who have executed it : Miller V. Ttumet al., IOC. P. 423; Ifasfall v. The Atturney-Goiwral, 18 (Jrant, 138; see, however. The Corporation of' Huron v. Armstrong, 27 U. C. K. 533 ; ^4«a<in V. Farmer et al., 30 U. C. R. 10. S. 29.] COVENANT TO BE FILED AND AVAILABLE TO SUITORS. 0.', approved (7) as aforosaitl, sliall be filed (/•) in tlie office of ;!;;,{;;';'•,;;';:; the Clerk of the Peace in the County in which the Division {l',';;,'|.'';;|.'j,„, tJourt is situate ; and for filing and granting a certificate I'^'iti- thereof the Clerk of the Peace may demand from such Clerk or Bailiff" the sum of one dollar. C. S. U. C, c. 19, s. 26. *49. Such covenant shall be available to (s), and may be To be avail- sued upon in any Court (<) of competent jurisdiction by any suitors, k>: person suffering damages (ti) by the default, breach of duty or misconduct of any such Clerk or Bailiff" (v). G. S. U. C c. 19, 8. 26. (7) See notes to section 27. {r) Tlie Judge is not legally responsible for the filing of the covenant : Parkin V. JJftris, 10 C. P. 22!). But it is submitted that he sli(»uld, for the protection of the public, see that it is done. No pajier is properly filed, until marked "tiled" by the public officer: Camphellv. Madden, Draper 11. 2 ; but see Jimj. v. iluidd, Mich. Term, 3 Vic. (n) The previous words "available to" mean that the covenant may be used to the success or advantage of any one having a right to sue (Worcester, 101), and taken in connection with the words "sued upon," the right and remedy arc complete : Alk'mmnw The Netvcastle and Gatenhead Watencorkis t'ouqtani/, 2 Ex. D. 441. (0 The ((uestion of which Court to sue in depends on the amount which the person claims under the covenant, and the nature of the action ; and if in a l)ivisi()n Court, with reference also to where the action should be properly brought. (u) This does not mean merely sustaining damages as for a tort, but is intended to cover damages or injury in the most comprehensive sense of these words as applied to civil action. "Damages are the pecuniary compensation which a plaintiff may obtain in a civil action : " Mayne on Damages, ,3rd Ed. 1. (r) The Clerk's sureties are liable to be sued on the covenant for Bailiff's fees of service of process received by the Clerk and not paid over ; and in such action the declaration need not specify the names of the parties from whom or suits in which the Clerk received such moneys: Cool v. SirHz(fr ct nl., 19 U. Vj. R. 199. At jiage 202 of that report, Robinson, C. J., says: "Whether m each case the money received for the Bailiff had become before this action money which the Clerk was bound to pay over to him, or whether the Clerk was justified in withholding it, as he might be, either ff)r a time or entirely under some of the provisions of tli£ statute, would be a matter of evidence to be gone into in regard to eacli charge." In an action against a Division (Tourt Clerk for moneys received by him by virtue of his office, the entries by him in books which, by law he is bound to keep, are evidence against his sureties: Middlejie.ld v. Gould et al., 10 C. I'. 9; The Carmarthen and Card'ujan Railwaij Companij v. 'The Manchester and Milford Railway Company, L. R. 8 C. V., G80; Irwin v. The Corporation of Mariposa, 22 C. P. , at page ,37 1 , l^er Hagarty, C. J. 'The action on this covenant may be brought against the Bailiff and his sure- ties jointly though the latter may be bound in different sums ; but the wrongful act of the Bailiff in seizing the goods of a stranger by mistake was held not m 26 RIGHTS AND LIABILITIES OF OFFICERS. [S. 29. \:"A witliiii tlio ciivouaiit ; Mc Arthur v. Cunl, 10 U. ("'. W. 47('> ; see alan Prcntou V. ll';/mrV w r//., 'JM U. C'. ]{. ;{4«. Money recuivod l>y a HaililV, tlioiiKli not icouivi'tl in virtuu of liiH ortici;, may boconio money ht'ld hy liim an Hiiilill', and for the noM-|iaymeMt of whieli the sureties would ho liahle ; Mr Arthur v. Cool, ■luftrii,; In Fniii/c/iii v. (Iniuii it nl., 'JO II. ('. J{. >S4, it was h<lil in an .-letion ai,'ainst a Clerk's sureties for money received by the Clerk, that they eould not oht;iiu credit for a sum of i'.'i(» O.v. 8'/., Clerk's fees set oil' in a fornmr action hy the ]ilaintill' a'^ainst tiie Clerk for goods sold, and tiiat as the Clerk c(Mild not take credit a second time for this sum, neither eould his sureties. The plaintill' having jjreviously sued the liailitl" alone for misconduct in selling his goods, and J'ecovered damages, for which a jl. /<i. was issued and returned nulla Iioiki, then sued the iiailill' and his sureties for tlie same misconduct, it was hrltl tiiat t!ie i)laintitl', having sued the Bailitl' alone for the tort c(mld not afterwards sue on the covenant for the same cause of action: Sloiin v. Cntisor I't al., 'J2 II. C. It. 1-7; !> r. C. L. .J. 1(» s. e.: see also MilUr v. Corhctt et al., 20 U. V. H. 478. Tlu' fact of a Hailill's sureties being nnn-rcsidents does not avoid the covenant into wliich tiiey have entered. That ])rovision is merely directory and for the guidance' of the .luilge: I'cur.^on v. h'uttiui ct al., 15 C. P. 7!). In that case it was also hclil that in an action against a l^ailiti" for his own torts, a demand of perusal and coi)y of warrant is not requisite under sec. 2'JG. Also that a IJailitl" is entifled to notice of action, even if action is on the covenant for tort. It was also ht-h/ in this last mentioned case that the action had been brought against prin- iMpal and sureties jointly, and that as the recovery must be against all or none, tliu discharge of the principal was a discharge of the sureties. (As to tlisciiargc <if sureties, see Fisher's Digest, from pages 8270 to 8282; Kob & .Jos. Digest, from pages Mi\ to .".O,")! ; L. K. Digest, fnmi pages 1019 to 1027; and Polak v. h'i'i'rcff, 1 (). li. D. ('((»;)). A Hailirt' is cntitleil to notice of acti(m for a seizure and sale of goods under execution even though indemnitied: Loid/h v. Coleman (■/ a'., 2!» IT. (!. R. 8(17; MrCanrc v. Batrmnii, 12 C. V\ 4()9. Where a Bailitl" acts in what ho believes to be the bona Jhlc j^erformance of his duty, he is entitled to notice of action : /fcrinaini v. S(n('.'<chal, 13 C. B. N. S. 302 ; JMx'r/.t v. Orrhanl, 2 H. Si C. 700; Cliamhrr.'i v. JM>1, 18 L. T. N. S. 708; A'eUl v. MrMillaii, 25 U. C. 1'. 48.5. But he must have reasonable ground for so believing: Lrctr v. Jfurf, L. K. 8 (!. P. 822; (h-ijiith v. Tai/lor, 2 C. P. D. 104; Hi'ih'h V. lin u-i'r, 15 C, B. N. !S. 808, aiul the honesty of this belief must, if the lilaintitl' desire it be left to the .Jury: Itohcrtt v. Orchard and Ncill v. McMillan, ■tuj)ra. " I agree," says Blackburn, .J., at l)age 727 of 0, L. II. Q. B. in Si'lme.<i V. Juflijc, " that if a person knows that he has not under a statute authority to do a certain thing, and yet intentionally does that thing, he cannot shelter himself J>y pretending that the thing was done with intent to carry out that Statute." The later cases qualify the rule as broadly Laid down in Dal" v. Cool, 4 C. P. 4110. An action brought against a Bailiff to recover excess of money levied on execution tloes not entitle him to notice of action; Dale r. Cool, G C P. 544. He is entitled to sucli notice if he acts on warrant without a seal: Au- ili'rson V. (I'racc, 17 U. C. II. 0(1, Want of notice can be given in evidence under the ]ilea of not guilty "by statute," see section 282; and in Division ( 'i)urt actions by noticj (tf statutory defence. The plaintiff in the execution under which the Bailiff commits tlie supposed trespass is not entitled to notice of action : Tinton v. Stuhli.'<, 1 U. 0. II. 847. To render liable the sureties of a Clerk for money received by him, it must be shewn that he received snch money by virtue of /t/.s' oUcc: Preston v. ]Vihnot et al., 28 U. C 11. 848; Kero v. Powell et al., 25 C. P. 448. A Bailiff would be liable for neglecting to execute a warrant of counnitment (2 L. C, (1. G2), but not necessarily for the full amount of debt and costs: Hrou'n et al. v. Pa.nton et al., 10 U. C. II. 42G ; but see Kerr v. Fullart- '>, 10 C. P. 2.50. Not only the debtor's own resources would have to be conbulercd, but all reasonable probabilities founded on hia f [s. 29. I SS. 30, 31.] COPY OF COVENANT RECEIVADLE IX EVIDENCE. 27 I •ill 7! ■ vV I ^ ,:.« ■I .i*\ # .'^*. liO. A tMipy of ovory such cnviMuint, cortificd l)y tlui n,ny o('',.,,v. Cl.sik of tht) P('!ic(s (lo) shall Ix^ rctciMvcd in all Courts, (,r) ;:;.';';! |.^f;,\|'; as siitliL-it'ut isvidciiw! of the duo cxocutioii and of tlic con- ivi.luiuo. tents thereof, without further proof, (i/) C. 8. U. C. c. 19, s. 28. lit. If any surety in any sueli covenant dies, becomes (,:;) ',i,!'"7i'*,fL.v/ resident out of Ontario, or in.solvent, (a) the Conntv Jud<'e «iir.ty tobc shall notify the Clerk or Bailiff for whom such jMsrson position in lifu that the de})t would havo l)een discharged if the UaililF liad done liis duty: Mn'-Rnc v. Clarke, L U. 1 C W 40.3; suo also An/in v. (,'iiinliirrr, 11 C. 15. H71. Witliout negligence of the Baihtl' in not arresting, luider warrant iif cDMiniitinunt, iiis sureties would not l)e liahle : X<-l/«)ii v. /in/ii/ cf ol., 14 U. ( '. U. '2'.i't. Ihit for neglect in returning process tliey woui<l : /f'. It is sul)initted tint, in the event of any cliaiigc in the limits, extent or nunil)or of a division Court, a fresh coveniuit slnuild he entered into hy the Uailitf, to save all ((uestions on the point that arose in The Cor/Kini/ioii <i/ (hi/nrio v. /'lutnii ct (iL, "7 C I'. 101. Should the limits of the new division hv more extensive than tlie old, it is ditlicult to see how the sureties could remain liahle after the change; ,S7,v7/f-^/ v. Fletcher, F.. 11. 2 V. P. 4()() ; Tbiuitpxat) el nl. v. MrLenu e( ul., 17 U. ('. 1!. 4!>"); see alKo lIiLrrimni v. Sei/nioiir, \j. H. 1 ('. I'. i\\H\ Addison on Contracts, 7th Kd. 8ti2, ef se,/. ; Po/id- v. 'j'Jrer.ff, 1 Q. K D. ()0!». A Mailitr and his sureties are not liahle for not selling goods under seizure hy him when the defendant hecame insolvent, as the goods passed to the Assignee; inider the Insolvent Act: Brown v. Wrhjlit et ul., .'{.") C. C. R. .378. See a very instructive article on the liahility of oflieers and their sur.'ties at pages 180 "201 and 'J07 of 4 U. ( !. li. .f . As ti) the p:irticulars of claim in actions against oHieers and their sureties, see liule (5 and Form 18. (('•) The certilicatc could he in this form : "I herehy certify that the within is a true copy of the covenant of A. II. {Clerk' or /idiUjl') of the Division Court for the County of and ('. /). and A'. /''. his sureties, together with all cojiies of atlidavits of execution and justilication and endorsements thereon, tiled in the otHce of the (Jlerlv of the I'eace for the said County of on the day of A.D. 18 Given under my hand, this day of A.D. 18 Clerk of tin' Pence in nn<lfor Ike County (or United Count'iex) of (x) As this provision was in force in the Consolidated Statutes U. C, l)efore the passing of the British N<irth America Act, it would apply to Crhninal as well as Civil Courts under the I'JUth sec. of that Act. (//) This mode of proving the covenant is only cumulative evidence, not suh- stitutionary : Tay. on Kv. 4th Kd. s. 1391 ; .see also l.iinch v. OUarn, (5 C. 1'. -2-)!); Graham v. Mc Arthur, '25 U. C. R. 478; Warren v. J)esnp,K>.% IV.i U. C. R. 5!). (z) See note to section 27 as to the meaning of "resident." (a) The term "insolvent" here means agen:;ral iuihility to pay debts, and does not signify taking the hcnelit of any Act for the relief of insolvent del>tors : liiddleromhe v. Bond, 4 A. & K. ;wl' ; Parker v. Oos.saue, '2 C. M. & R. G17. Jn speaking of a man being in "iuaolveut circuniatauees," Craham (Baron) *■> ■»'"'.'l..1'. ft, I 28 SrRETlES MAY DISCONTINUE SUUETVSIIIP. [s. 32. bnciimo surety, of hucIi dciitli, (Icparturo or insolvoncy, and such VAi'vk or H;iilitl Hliall, within oiu) niontli after Ixiinj,' (/^ BO notilioil, givo iinovv the like .soourity, and iu the same manner us luireinl»<>fore provided, oi' forfeit his otliee (r) of Ch'rk or Bailiff. (J. S. U. C. c. 11), s. 29. Sureties of J^*^, Anv i)ersou who has become surety (d) for anv Clerk H.iiliiis of or Uaihtt, and who IS no longer dispo.sed to continue sucli Division ., •!. ■ ■ , \ I ,' 1 / (1 1 Odiiits iii.iy res|»onsil»ility may give notice («) thensot to the Llerk or .(iiivty.siiiii. Bailili', and to the Judge of the County Court, and in sucli cii.se the said Clerk or Bailiti" shall, under penalty of for- ft.'iture of his office, furnish the security of a new surety in lieu of the surety .so giving notice, and shall- have the nec(!ssary bond or covenant approveil by the Judge and said, ill 'J\'tih'\. Yountje, MoClel. & Younge, 500, "One must untlerstand that iu the ii(t])ular si'iusc of tlie words, tlic man was not iu a condition to pay readily when called upon ; in otlier words, tiiat he was iu tottering circuui- stances." (iarrow (Maron) says, at page .lOU of the same report, "My under- .staudiiig of insolvency is a man's not being iu a condition to i)ay twenty shil- lings in the p(mud in satisfaction of all denumds." (h) The month would not commence to run until the day after the notice was given: Wi-<kH\'. Wraij, L. 11. .S C^. li. 21 'J ; YoHmj v. Jrnjijoii, M. & W. 4!l. (t') By u6glect of tlie ottjcer iu furnishing the fresh security, his ottice becomes forfeited: see page 10 of U. ('. L. J. ((/) .See the nature and relationship of this contract at page 854 and suhse- • pieut pages of Addison on C'onii'acts, 7th Kd., title, " Bonds t(» secure faith- ful services:" (.'orjwnttioii of Oiituvio v. Pnxton et al.,21 V. V. 104. The executors of tlie sureties would be liable on this covenant : Jhij. v. LccmiiK/ ct al., 7 U. C. R. 30(5 ; PrurisioiKil C'orintrafioii of Jirucf v. Croma'r, '22 V. V. R. '.i2\, The covenant only Iniids the sureties for moneys received : Camnla Wi^t Farmcru' Mutual <iml Stock Jn.nirittice Compaiuj v. Mcrritt ft al, "20 U. C. R. 444; i'urpomtiuii of Jhucilou v. Ward et al., 27 U. C. R. 009; Montcfiore v. Lloijil, 15 ('. B. N. S. 20;{. A person having a right of action on the covenant by discharging one of the sureties would discharge both : Evana v. Brcmrldiie, 2"Jur. N. S. 134 ; 25 L. J. (!h. 102 s. c. But see Burwell v. Edlwn, M. T. 3 Vic. There is a right of contribution between co-sureties, whether l)y separate instruments or by the same instruments: Mai/hcw v. Crickctt, 2 Swanst, 189, 192 ; Pi'Hilhihuni v. Walbr, 4 Y. & C. 424; DiWhuj v. Wbwhdsm, 2 B. & P. 270 ; liniuoldx V. W'/K't'/ci; lU C!. B. N. S. 5GI ; White & Tu(h)r's L. C. 1(M5, et sn/. The amount recovered is the ah(iuo,'; proportion of the money paid by him mider the covenant, regard being had to the number of sureties (Coi '' ' J'Jduianin, 2 B. & 1*. 2l)S), and it is recoverable under the comnum money paid: Ketti/j v. Finden, 12 M. &, W. 421. Wliere a surety p.i ley for his priuciiial, he is entitled to interest from the time of payment tre v. JJuiirom'x', 2 li. M. & r. 107. So also is he entitled to recover interes. mm a co-surety: llUrhiiian v. Stewart, 1 .^ur. N. S. 839, s. c. 24; L. J. Ch, ti90 ; ManjreU v. Greijari/, C L. T. N. S. 543 Ex. See Rob. & Jos. Dig., 3048, et .'<e,/. {<') The uoticj use I uit b^ in Wi-itiug (//";/. v. Justic:'-i of Salop, 4 B. & Aid. C2(i ; Jieij v. Jasticen of Surrci/, 5 B. & Aid. 539), but for safety had better be so. SH. 33-3.-).] OFPICEIIS MAY fJIVK OITARANTKK nONDS, 29 i roiiiplotod (/) within ono month aft«H- (//) stich uotic(! ; iind all accruing n'sj)onsil)ility (/') <>ii tin? piirt of the person giviu",' such notice shall cwise upon and after the perfecting ami a|)])roviil l)y tho Judge of the iww HC(;urity. 3U V. c, 17, s. 3 ; 40 V. c. 7, Sc/ml. A (UD). llli. Sections tift'.-en to twenty l>oth inclusive of y/ir Aet •"•■' *"','; Z.^. t'rupi-ct'uKj Pithlic OJlvrs, shall, with th<; sid^stitution of "flic V. !Sli«J, !■ i:. I.) The Judge of the Court" for "The Lifuitenant-Governor," ai.i.i.v t o hI'Cllliticf apply to securities given l>y a Olerk or BaililV of a Division ^'iv.n i,y (.\jurt. (/) 31) V. c. 17, H. 4. >See also s». 24-27 of licv. ('mTt'"" „ t'lt'ikH mill Stat. e. 15. Biiiiiitit. J54, Nothing hereinbefore contained shall discharge or l-iniiiHty of , ■ IciriiMT exonerate any of tlie parties to such former covenant tron\ suaik». their liability on account of any matter done or oniitted l)efore the renewal [k) of the covenant as aforesaid. C, S, IL (J. c. 19, 8. 30. /■f V. olll il 'h, i.'.IO; 18, >'( si'i/. & Aid. er be so. 4 ^1 'Si' Clerk's Ditties, (/) Si», The Clerk may (witli tlie approval of the Judge) Wlim cu-rk troni time to time, when prevented iron> acting, by illness Deviity. (/) i. e. , When duly filed uiuler sec. 28. (</) Sec notes to section .31. (//) This means that the lialrility of the sureties sliall cease, evcept .is to .ill past transactions and matters, when the new security is duly executed, approved and filed. (/) Ah to Clerks .and Bailiffs giving security in this way, ace Rev. Stat, cap. 1."), anil especially sections '24, 'Jo, 2(i and 27, {k) It is subniittetl that this section is only rlecl.iratory of the Common Law s AV|/. I'x ril FlaiuKjitn v. McMalion, 7 U. ('. b. J. l.")5; see also <) U, C. L. ,J. 10. The taking of a fresh covenant could not discharge any liability on the former one. (/) It would be impossible to give in a woi-k of this nature any proper idea of tlie different and varied duties of Clerks and Bailitl'a of Divisit^m Courts. They are so multifiirioub that the spare at command renders it impossible to give the su 'ject anything more tli.an a passing notice. The writer has examined the early volumes of the Upper Canada J^aw Jcmrnal, and there finds that which, if reatl by Division Court ofticers, will be of more practical service to them, and better point out their duties, than anything that can be said here. In most of the articles and answers to corresixnident.'* which we are alnrnt to refer to, the writer thinks he can discover the careful opinion of one deservedly at the hejvd of the County Court Bencli ; one who has (hme moie to popularise and raise the standing of Division Courts than .any other man in the Pro- vinee. Tlu-se opinions in matters of Division Ctairt law and practice are given as authori : and from the high position that the Law Journal haa always av »-, k'.'S mm 30 APPOINTMENT OF DEPUTY CLERKS. [s. 35. or otlier UMiivoicliible accident, appoint a Depnty(»ri) to act fur him, with all the powers nntl privileges and subject to lik(! duties, and may remove such Deputy at hi;.' ph'asuro, and the Clerk and his sureties shall be jointly and severally res[)()nsil)le for all the acts and omissions (.»/) of the Deputy. C. S. IJ. (,. c. 11', s. 33. (luscrvedly ocdiiliiod ;uuoiig lawyers as well as laymen, the writer Drt'ers no aptilogy fur here citing tliem an autliority. 'J'o any ("lerk or Baililf who has an an.vious desire to learn and under.-itand tlie iluties of liis otUee, wo commeml a eart;tid perusal of tlie articles and ojiinions given at pages '2, "Jl, '2'2, 41, 4'J, (i'J, 81, iOl, I'-M. 141. 'J((l and •_"_'! of Vol. 1, ; and (>age.^ 1, 41, 4.-), (il, 81, 85, 1)4, 101, Kil, li;:{, 182, 201, 202 and 220 of Vol. 11.; and page 1 of Vol. 111.. U. C. L. J. {in) It is only in case of " iinni'oiilohlr accident " that a Dejmty can be a]t- pointed. (See the ditlerenee in section 20). The oHice of Division (.'onrt Clerk is )'.ot intended to l)o a sinecure, the Clerk receiving the eniolunients an<l another jjeifoi^nun;.; the duties. The begislature purposely prevents this by allowing the a[)[iointMient of a Deiuity in these two cases only. "Thei'lcrk iniy have as many assistants as he tliinks necessary in doing the work of his oOice, receiving ])apers. lillirg in i)rocess, copying paj)ers, receiving moneys or the like, under his direction •, I/.it they are not recognized as Deputy Clerks in the proper signilication of the word, though they w udd be held in law to be the principal's dj]>uty wiien doing any particular a(;t under his direction. In signing proc<'ss, administering aliidas its, api)roving instruments, taking confes- si.ms, I'ccording juilgmeiits, or tloing such matters as the begislature evidently trusted to t>c done by the (,'lerk por.'-onally, it is doubtful if assistants would liave the power to act ; but in carrying out the mere manual work of the ofKce, mider the Clerk's directions, tliere seems to be no objection to tlieir employ- nu^nt. (Such Ai^sistant ( "lerks are employed in the ofhces of tlie Superior (•ourts and County Courts ; but any writs or documents they issue are previ- ously signed by the principal otKnjer, whose agents they are for the particular act). Tlie term deputy apjilies only to one «ho has all the authority which the principal has hy virtue of his otiice. A deputy, then, is one who acts by the right, in the name of, and for the benelit of some one else : he is a mere 81'vvaiit of 'lis princi[)al, though he has the power, by operation of law, to do any act which bis jirincipal might <1(» ( I Salk. 0.')) ; and by making a deputy, the whole power of tin." ])rineipal passes to him : 2 Salk, 408; and see 1 Salk. 96; AVy. V. 'Sill nil, l''arr. 78." "Ministerial otlicers can, by Conmum Law, make a d;^.!' y ; 4 Bulstr, 78; ."i Mod. l.")0. Whether Division Court Clerks come withi.i the general rule is not material to be considered, for the statute has c.Kpressly provided for the appointment of di-puties, thus rather diminishing than enlarging any Common Law power, for the exiiress provision Mould appear by imjilication to exclude the ])ower of appointment, excejit as provided for:" 9 U. C. L. J. .'{2 & .S3. The death or removal of the Clerk would put an end to appointment of the deputy: Jii >r l/oci/ v. M'Farlam, -1 C. B. N. S. 718. (h) As the Clerk has the appointment of this Deputy, it is but right that he should be held resp(uisible for his acts. It is suggested that a (Terk desiring a Deputy appointed should ju'oduce to the .Judge the consent of his sureties. As they are by this section resiiousible for "all the acts and onussions" of the Deputy, they should know for whom they ctnitinuc their responsibility. It is to be observed that it is the (Terk, aiul not the Judge, who anpoints the Dej)uty. V , fis. 36, 37.] DUTIES OF CLERKf?. 31 r iiflbrs Ti<i I' ttlio hiivs i commend 41,4-J, ()*2, 81, 85, 94, Vol. Ill,, nan be aji- 'oiirt Clork meiits and itp- tliis by ■TlioCkTk .'ork of iiis moneys or \' Clerks in law to be jctior.. In ing oonfes- i; evidently lilts would the office, 'ir employ- J Su{)enor are previ- larticiilar ity which acts by IS a more law, to <li' .'l>uty, the .Salk. 9G; lUilstr, 78: ral rule is ed for the ('.ommoii o exclude .{•J & XI ent of the it that lu^ desiring a eties. As ' of tll(^ ity. It is lointa the ■I :{(». Tlie Clerk shall issue all summon.ses, (o) which sum- !^'''''< t" monsoH shall be by him filled up aud shall bo without blanks |.""":^';^ i">'i •' ' _ lililllsli either iu date or otherwise (p) at the time of delivery for <oi,iis. .tc .service; he shall also furnish copies of the same with the notice thereon, (</) according to the form prescribed by the (renoral Rules or Orders from time to time iu force relating to Division Courts. C. S. U. C. c. 19, s. 34. . - III, The Cleric siiall cause a note of all summonses, orders, f.''y,')''.,'" iudirmentH, executions and returns thereto, to be from time ricnid df " " ' _ _ wilts aii'l to time fairly entered {>•) in a book (s) to be kept in iiis ,i»''i,'"iL"it3. office ; aud shall sign {i) his name on every page of such book ; aud such signed entries, or a copy thereof certiHcid as a true copy {») by the Clerk, shall be admitted in all (o) The summons is the commencement of the action (liulcs 9 to 17 inclusive ;l and no valitl decision or judgment can be given unless a summons is issued and served {'J'liiirliiini v. Iiiinif<, b. R. 'IV. V. at p. 401), or Maiveil iiy the defen- dants' ajipearance : llcij. v. Smith, li. R. 1 ('.(,'. 110; lil<ikr \\ HkcIi, 1 Kx. I). :J:*0. In Hiiimbr v. Kvuvn, Hi Q. B. 171, Parker, Baron, says: "No proposition can l)e more clearly e8tablislie<l than that a m;in cannot incur the loss of liberty or jinmerty for an otfeiice, by a judiei:il proceeding, until he has had a fair ojipoitnnity of answering tlie charge against him, lui/i sm uuhitl t/ir /jti/is/aturr liiih ('.K/iirsKlii or iMjiltnlli/ ifircn an autliaritii to net irltlniut llntt iKct-xsitri/ jijulhui- vdi'i/." In CoDjirr V. 'I7ii' Bmiril of WovL't for tin' Wmiil.^irorfh hixirirt, at ji. 190 of 1 I <'. B. N. S., AVillcs, J. says : "] apinehend that a tribunal. Mhicli is by law invested -with power to alt'ect the pro])erty of one of iler Mjvjesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds, and that that rule is of loiiri r.-ml itjijilirtifion and founded on the plainest ])rinciples of justice :" see also Iiii//( n v. Moodii- <( <tf., l.S ('. 1". l'J() ; aiid in Appe;il, 2 K. & A. .S79 ; Xirliol/.'< v. (^imni'nuj, 1 Sup. Court, R. ;^9.') ; Rcii. V. Ch'.-hirr Liiii-.'i Cotiimillc; L. K. 8 (.). B. 344. (/>) It should be a perfect process when delivered to the ofTu-ei lor service. It is submitted tliat after that an amendment can only be made by order of the •ludge. (7) See Forms 22, 23, 24 and 2(5, and Kule 15. ((•) K'lch entry should bo made so as to show plainly its purport and meaning. As to the nuidc of entfsring, see Foim 4, (,s) As to the form of the Procedure Book, see Kule 148 and Form 4. (/) This is imperative, and its omission is one of the most serious cases of neglect on the jtart of a ( 'lerk. If omitted, jierhaps neither the original entries, certainlv not copies, ctiuhl be given in evidt iice. The statute says '' siic/i signed entries :"" see /.Vr/. v. lio^rland, 1 F. & F. 72. ((() The certilicate may be in the following form :— "I hereby certify that the annexed {or irit/iiii) paper is a true copy of the signed entries ap|tearing in the Procedure Book of tiie Divisiiin Court for the County of , as there noted, of all summonses, orders, judgments, executions, and returns thereto, in a certain cause in said Court of {A. /i.), plaintitl", against (C. J).), defendant; and on the ])age of the said l)o()k in which said entries were so noted is the name of me, the present Clerk of said C..'vf%4i..„.'; W\'-'i'%' '. ■ fe'f. y • »?••,■- 32 CLERK To ISSUE WAtlRANTS AND EXECUTIOKS. [s. 38. Clerks to issiu: fXc(Mitiiin«, t.ix rusts (Hid koi:]! Courts and places as evidence of such entries, and of the I)rooeediugs (i)) referred to thereby, without any further proof. C. S. tr. C. c. 19, 8. 42. J58, The Clerk shall also issue all warrants, {lu) precepts and writs of execution filled up and without blanks ; he shall tax costs (a?) sidiject to the revision ot the Jiulge, (y) Court {nr E. F., the Clerk of k/i'kI Court v^hen such entries were viadr), written in my own proper haiulwritiug (or in the proper handwritinfl of the aa'ul E. F.) (Tiveu luider my hand and the seal of the aaid Court at this day of A. !>. 18 [Seal.] Division Court Clerk of the for the County of ((') This section is a pretty close transcript of section 111 of the English »tatnte of 9 & 10 Vic. cap. t)."). It has been decided under that Act that a minute of the proceedings made by the Clerk pursuant to this provision is con- clusive evidence of them, even though the Judge gives evidence to the contrary ; J)iit'A V. Jill( !i, 11 C. B. 431. The Clerk's book, or a certified copy of entries from such ))0ok, is the best, and therefore the only evidence of jjroccedings : lieif. V. /iou'hinil, 1 F. & F. 7*2, jier BranuVell, B. ; Koscoe's Crim. Ev., 8th Ed. pp. 2 and 170. An entry in the Procedure Book, "struck out for want of jurisdiction on tlie ground of a disputed title having been sworn to," is not evidence of a judgment in replevin: Tiihhi/ v. Stanhope, H C. B. 790. The entries made by a Clerk in pursuance of this section are evidence against the sureties of such Clerk: MUldlifild v. Coidd rt at. U) C. P., at page 14; see Canndrthi-n and Curdhjan JiitUwdi/ Companii v. The Manchester and Mil/ord liaUimi/ Coinpaiii/, L. 11. 8 C. P., at page G91, per Bovill, C. J. (w) In Common Law matters, usually applied to a proceeding against the person : Wharton, 775. (x) "As soon after the Court as possible, the Clerk should receive from the successful party an alHdavit of his disljursements to witnesses. The attidavit can be made before the ('lerk of any Division ('oui't, and forwarded by mail or otherwise to the Clerk in whose Court the judgment was rendered, ami may l)e l)y the party or his a^cni, At latest, the Clerk slio.ud be put in possession of it tlie (lay before the execution is <lue, according to the order of the Court ; as he has conunoidy general directions at the time of entering the suit, to proceed and collect the amount claimed, which disj)enses with a special direc- tion to sue out execution, when the time given by tiie Judge has expired:'" 1 U. C. b. J. 81. For form of athdavit of disbursements, see Form 112. Where execution is "forthwith," the Clerk should atl'ord the succes.sful party a reason- able time in which to put in this afHdavit ; and in ease of a nonsuit or judgment for defendant, the defendant is not, it is submitted, restricted to time. A mandamus will lie, to compel a Clerk to issue execution : Jt'iy. v. Fletcher, 2 E. & B. 1'79. (//) It is submitted that the proj)er practice for revision of taxation is for the party dissjatislied to give notice to the opi)osite [)arty and the Clerk of the Court of his intention to iiave the Judge revise the taxation of costs on a certain day and hour. A reasonable time should be allowed. The papers in the case should be laid liefore the Judge, and in the event of the parties not appearing, an all" davit of service of notice of revision. (In anah>gy, see secticm 353 of the Common Law Procedure Act.) Payment of costs icithout protest does not prevent a )uvision : Kornuvm v. Tookey, G P. 11. ll'J. ■1 HH. 39^41.] CLERK3 TO MAKE RETl'RN-S TO C. C. ATTORNEY. sa ro,f,'iHtor all orders and judgments of the Court, and keep an account of all fines payable or paid into Court, and of all suitors' moneys jtaid into and out of Court, and shall outer an account of all such fines and moneys in a book («) to be kei)t by him for that i)urpose, which book shall be open to all persons desirous of searching the Si,me, and shall at all tiiries be accessible to the Judge, who shall examine the same quarterly or oftonor and compare the accounts herein- iifter mentioned with such book, and shall ceu'tify on each such account that he has examineil the same, and believes it to be cox'rect, or if he doe x^^t believe it to be correct, he shall state his olyections t .v .. ^to, and the Clerk shall there- upon forward the account with such certificate to the County Crown Attorney. C. S. IT. C. c. 19, s. 30. Hi). The Clerk, at the periods from time to time appointed by the Lieutenant-Governor, shall submit liis said accounts to be audited or settled by the County Crown Attorney. C. S. IT. C. 0. 19, s. 37. 40. The Clerk of every Division Court shall, t(\>m time to time, as often as required so to do by the (Jouuty Crown Attorney of his County, and at least once in every thi-ee mouths, deliver to him, verified by the aftidavit of such < 'lerk, sworn before the Judge or a Justice of the Peace of the County, a full account in writing of all fines levied by the Court, accounting for and deducting the reasonable expenses of levying the same, and any allowance which the Judge may make out of any such fines, in pursuance of the J lower hereinafter given. C. S. U. C. c. 19, s. 38. 41. The Clerk of each Division Court, when .equired l)y the Jiulge, shall from time to time, furnish him with a full account in writing, verified by the oath of the Ch^-k sworn before the Judge or a Justice of the Peace, of the moneys jeceived into and })aid out of the Court by any suitoi-s or other parties (a) under any orders, judgments or process of the nnmiint of liiius. &l'. CIrrks tc .SIlllMlit lU'ciiimts to Counts Crown Atloniey.s. Clerks of County amt Division Courts to deliver to County Crown Attorney a verilH'il aeeonnt of linea. Clerk of Division Court, to t'urnisli Juil«e with a verilied ai lilt <)f moneys paul ill and out of Court. {z) Sec Form 5. {a) This refers to moueyB received from all sources, as well as fines or ti»rfeituro8. i ^■tP\ .<'?,';;»Tm*'m'' ,.'t*''--W.',y.s ^ i" kT-'-ii'm:' ■ mm 34 CLERKS TO FURNISH JUDGE WITH ACCOUNTS. [sS. 42-44. Division Court Clfrks to fiiniisli tliu Jiidijc with suiiii-aiiniiai ai^ciiuirts uf iVcs ami emoluments. Cl(«ik aniHially to iiial<e list of suitors' IIIDIII'V iu Court. Copy of list to be put uji iti Court House ami in Clcrli's otllce. Court, and of tha balance in Court belonging to any .sucli suitors or parties. C. S. U. C. c. 19. s. 40. 41?, The Clerk of every Division Court shall, half-yearly at least, furnish to the Judge of his Court a detailed state- ment (/>) of all fees and emoluments of his Court ; which statement shall be sworn to before such Judge, and it shall be the duty of such Judge to require such statement and to file the same with the County Crown Attorney. C. S. U. C. c. 19, s. 41. 4*{* The Clerk shall, annually in the month of January, (c) make out a correct list (<I) of all sums-of money belonging to suitors in the Court, which have been paid into Court and have remained unclaiuied for six years before the last day of the mouth of Deceml)er then last past, specifying the names of the parties for whom or on who,se account the same were so paid. C. S. U. C. c. 19, s. 43. 2. A copy of such list shall l)e put up and i-emain at all times (e) in the Clerk's OlHce and during Court hours, iu some cous[)icuous part of the Court House, or })hice (/") where tlie Court is held. C. S. U. C. c. 19, s. 44. Upon resignation, removal or (ieatli of Clerk, County l.'rown Attorney to become Disposal of Books axd Papers when Clerk Changed. 44t All accounts, moneys, books, papers, and other matters in the possession of the Clerk, by virtue of or ai)i)er- tainiug to his office, shall, upon his resignation, (y) removal or death, immediately (h) become the property of the County Crown Attorney (t) of the County in which the Division is {h) See Rule 83 ; autl as to the form of this statement, see Form X;*. 115. As ti> the .stati^ments wliich have to he maile hy Clerks in Cities, on or before the 15th (lay uf .January in eaeli year: see 41 Vie. eap. '2, s. ,'i4. (<•) That is iliu'iiijj that mouth, and jiroperly not before it commences nor after it expires : Jlufi/ v. FowUr, 10 U. C. 11. 382. ((/) See Form 1 Ki. (e) For the purpose of ascertaining the person entitled to it. (/) See the notes to section 9. ((/) See section 2(5 and notes. (//) It is submitted that from the object and context of this clause "im- mediately," must here he rea<l iuMnutlij. There can be no intervening owner- ship: see the remarks of iJyles, J., in Foritdike v. Utoiie, L. 11. 3 C. 1*. p. Gil. (j) liev. Stat. cap. 7S. "'A •A S. 45.] DISPOSAL OF BOOKS AND PAPERS ON CHANGE OF CLERK. 35 Kituate, wlio sliall holil the same for the benefit of the ])ublic P"ssesaod until the appointment (k) of anotlier Clerk, to whom he shall deliver over the same, Vmt not until such Clerk and liis sureties have executed iind filed (l) the covenant liereinbeforo mentioned. C. S. U. C. c. 19, s. 47. [.Section 48 of C. S. U. C. c. ^ 9, is m follows : — 48. Any person wrongfully (in) holding o'- getting possession of Punish-nsnt such aceouuts, moneys, books, papers and matters aforesaid, or any wn'n'iL'fuiiy of thum shall be guilty of a misdemeanor (;i) ; and upon the deolara- IioMinK tion in writing of the Judg^ presiding over the Division Court for iVx'iks "*' the time being, that a person has obtained or holds sueh wrongful "'' I'^P^^.s, possession thereof, and upon the order of a .Judge [o] of either of Her Majesty's Superior Courts of Law, founded thereon, such person shall be arresteil by the .Sheriff of any County in whiuli he is found, and shall by such .Sheriff be comnutted to the Common Jail of his (,'ounty, (p) there to remain without bail luitil one of sueh Superior Courts or a .Judge thereof be satislied that such {)erson luia not and never had nor held any such matters or moneys, or that he has fully accounted for or delivered uj) the same to such County Crown Attor- ney, or until he be otherwise discharged by due course of law. 13, 14 V. c. 53, 8. 13.] * Duties of Bailiffs. (7) 45> The BailiflTs shall .serve (?•) and execute all summonses, BaiiifTs to , . . , .serve writs, ordcu's, warrants, j)recepts and writs delivered to them by [k] See section 26. (I) See sections 27 and 28 and notes. (;;() The gist of the offence consists in the word " wrongfully :" /i\v/. v. Dav'ni, 4 L. T. N. S. 55Jt; AV7. v. Brvnt, 1 Den. C. C. Uu. ()i) l'unish;d)le by tine or imprisonment or both : Pitincroi/, ajjp., and Wilson, resp., 2t) U. C. li., at p. 48; Russell on Crimes, V(d. 1, p. 45, 3rd Ed. (()) It must not be conditional: ChichcMir \. Gordon et nl., 25 U. C. R. .527. (;*) Oannot be to anv other than the g.iol of tlic County of the Sheriff arrest- ing him: Sinfjn- v." Bruwii, 20 C. P. 1<>3; In re Wmtlurlii, 4 P. 11. 28; Schmhlcr v. Aijnetv et al., 6 P. \\. 338. The person charged must either disprove the charge in the way pointed out by this section or stand his trial or be discharged on Ihibi'd-s C'orpi(,-<. (7) Tiie remarks made in the notes to section 35. and tiie pages of the Ui)per Canada Law Journal there referreil to, have special application to the duties of the Bailiff; we also refer to S) IJ. C. L. J. 20»J & 234. An important duty of the Haililf is his cimduet at Court : see 1 V. ('. \j. J, 101. He should ojjen the (!ourt in these words : " Jfair i/f ! Hvar jfc ! All mdnncr of' />< rson.s ic/w /luve (un/tltiiKj to do al this DlrWiou Cmirt for tin- Coiinfi/ of , let tloni draw near and (I'lvc their attendance and llay nhall lie heard. God nave tfie Queen:" 1 U. C. L. J. 101. (r) "Bailiffs should sf) regulate their proceedings that at proper intervals they may attend at the Clerk's ollice to receive aummouaes intended for service. mm '^^ .\r-\,t ■■■'k;.'''«'.'.'^4,'*'<« 'I , *,V' :xt :il'^ mm 36 DUTIES OF BAILIFFS. [s. 45. Clerks should assist Bailiffs of their Courts in seeing that the originals and the copies of suninioiises and claims correspond. » » » » * Every care sliould be given to ascertain where the several defendants live, and, if there he more tii.an one person of the same name in the locality, which person the sununons is intended for. This information is usually given hy jilaintitt's to the Clerk, or is noted in tiie claim handed in for suit, and before the pajiers are taken from otHce, should be obtained. In Courts where the business is large, it will be absolutely necessary for the Bailiffs to make out a list of the summonses received, with columns for date and mode of service ; it would otherwise be impossil)le to work to advantage, or to make pro])er returns to the Clerk:' '2 U. C. L. J. H.'). 'Tlicreis no provision in the Statute authorizing Hailitl's to appoint deputies. ]f the right to appoint was a (picstion to be determined (m Connuon !.,aw grounds merely, the liailiff' would prol)ably be held to liave the power ; for, as ahead}' observed, the gci'.cral rule with regard to all ministerial oHicers is, tiiat tliey may appoint diputies. But the ex])ress provision enabling Clerks to do so, j)iainly implies that liailiffs are not authorized to exercise any such j)ower. Botli Clerk and Bailiff are ministerial otticers ; but to a certain extent the Legislature may be supjjosed to have trusted the j)rincipals -Clerk and Bailiff -in the execution of both oflices, making special provision, however, in the case of the Clerk, that tlie duties of his office might, (ui special contin- gencies, be executed by deputy. A Bailiff, doubtless, may call in assistance, when necessary, in the executitm of his duty ; and every such assistant, acting under the directions of his [irincipal, will be within the })roteetion of the statute, and be hehl in law to be the principal's deputy (though not Deputy-Bailiff") while doing any jyarticidar act —as in securing, kee}»ing possession of pro[)erty seized, or the like, under the Jiaiiitf's direction ; indeed such assistants are recognized in several sections of the statute. Section l!*;") (now '2'2()) provides that no action is to be brought against a Bailiff" 'or against any person acting by his (U'ders and in his aid," &c. ; and in sectimis 184 (now between ss. '217 and 'JKS), \W> (now '227) and li)7 (now 228) assistants are referred to. It does not appear essential to due service of tiie onlinary sununons, that it should be nuide by the Bailiff of the Court; if duly served by any literate person it is aiiprehcnded it would be suHicient, thougli no cliarge could be taxed for tiic service or mileage, unless effected by an autliorizi'<l person. Jn prac^tice it is not unusual to ap])()int a person a l)ailiff (/>n> /kic rier; to cli'cct a particular service, where the circum- stances warrant such a coinsc ; and in that case the regular expense of service would be cliargeal)le in the usual way. But all process of execution !>nd w.vrrants must be executed l)y tlic liaibff personally : ' U. C. L. J. <)8 & «•<). " As before observed, a deputy is one who acts by the right and in the name of anotlier, having the ])ower to do any act that his princi))al miglit do ; and althougli the gcueral rule is, that ministerial ollicers can make a deputy, the Division Court Bailiff does not appear to have any such power. While the statute exi)rcs8ly authorizes the aiijinintment of a l*ei)utv Clerk under certain circinnstunces and upon certain conditions, it is silent on this head as to Bailiffs ; and the presumption is, that the intention of tiie law is to disable them from passing tlieir power to a <leputy. And it is to be observe<l that the oHiee is one of considerable trust, is held during pleasure ; and it nuist be presumed that the Judge in appointing trusted the Bailiff, and him alone, so that in the case of process directed to liim by name or name of oHice, he alone can execute it. But the ordinary summons is addre.sed to the party, and it may be said that the reasons against ajipointing a deputy do not apjily, at least with the same force. On the other hand, tiie whole tenor of the statute goes to show that the Legis- lature contem))lated service by the I?aili(l' himself ; and looking at the rules it would .appear that the Board of .fudges so construed the law. Then due service lies at the foundation of the .fudge's jurisdiction ; and although the (picstion, what is due proof of service, rests altsolutely and entirely on the discretion of the Judge (Davis v. Walton, 10 Jur. 951), the rule wouhl be not to admit service 8. 40.] BAILIFF TO KXERCI3E DUTY OF CONSTADLE. 37 the Clerk for sorvicc, whetlier BailiHs of the Court out of wliicli the same issued or not, uud shall so soon as served icturii (*) the same to the Clerk ot iho Court of which they are r('S|>ectively liailiHTs ; but, subject to the provisions of the .sixty-third ssction, they ^hall not be rtiquired to travel lK!Votid the limits of their Division, or l>e -vllowed to charge mileage for any distance travelled beyond the limits of the (,'i)uiity in which the Courts of which they are respectively BailiUs are situated, (t) C. S. U. C. c. 19, s. 79. 4U. Kvery B.iilitf shall exercise (ti) the authority of a nuiiiirto . , fxi'ifise Coustable (v) during the actual holding (w) of the Court of <iui.v df which he is a Bailitf, with full power to prevent breaches of lUmun unless by a Bailiff. The Judge in h'm tUticrction may liold service hy a person «»t!ier than the Bailiff tu be a good service, the object l)eiiig to bring tlie sunuuoiis to the notice of the defendants ; but the Bailiff has no rhjlu to aiipoint a deputy to effect service. It is not unusual in practice for the .Judge to apjwiiit or sanation the apimiutnijut of some proper parson to serve summonses in cases of tiiujrg.'ucy, f>ut then tliu jurson so appiinted is for the occasion and purixtsea named a Bailiff of the ( "ourt. But a Bailiff may have a.ssistants wlieu necessary in (biing the work *»f his ofHce, under his directions and in driving away or securing cattle or propjrty seized there seems to be no ol)jection to their ♦ inployiueut. And in tins sense such assistants are Deputy Bailiffs, that is, they would be lield iu law to be the principal's deputy when doing any particular act nailer his direction ; and it wouM appear that the word ' Deputy,' used in the 184th section (now betweeeu '217 and '2KS), if a])plied to Bailiffs, is employed iti this sense. The language, however, of that secticui is, ' If any ofKcer <»• Bailiff (or his deputy <»r assistant) be assaulted,' &c. ; and 'Deputy' ivould appear t<t apply to otKcers other than Bailiti's— 'assistants ' to Bailiffs. Assistant Bailiffs are also recr)gnizjil in sees. UK') (now 'I'M], W6 (now '227) and Uf7 (now 22S), as persons acting by Bailifi"s order and in their aid :" 9 U. C L. J. '234. (,s) If not returned within six days after service, the Bailiff forfeits his fees (RuleitO), ami they belong to the Fee Fund: '2 IJ. ('. L. J. 1'24. This is r.c- flaxire. of the day of service : Voiunj v. Hhjijon, (> M. k \V. 4!). The Clerk and his sureties are liable to the Bailitf on their covenant for his fees received by the Clerk on suits : Cuol v. Switzer, II) U. ('. R. IDS). (t) A Bailiff is not hoiinil to travel beyoml the limits of his own division. If he (h»es so, he is entitled to mileage for necessarily travelling anywhere in the County, but should he go out of the County, he is not entitled to the extra mileage: see {) U. C. L. J. 207 ; In re Ladmu-iui- v. Salln-, 12 \., .1. N. S. 18'2, and i)\\ R. 805. (u) It is imperative on the Bailitf to exercise the authority here conferred on him. ((•) He is an officer charged with the preservation of the peace and the execu- tion of warrants iu furtherance of that object : \V(U'cester, 300. (w) "If the Court l)e sitting at the time of the offence committed, or its sit- tings are inunediately about to take place, it will be better that the offender should be taken l)cfore the Court, that the law may be promptly and publicly vindicated and a final decision obtained ; but in any case in which the oft'emler is arrested without warrant, uidess the hour be unreasonal)le, as at night, iu which case he may be secured in a lock-up, or other convenient place tdl the m m U. r-'V. tm ■■■'•('^K'Iks'*-'' -J ,,, ^W^Nl*.. .J pi. 98 FEES OF CLERKS AND BAILIFFS. [s. 47. ,,4 of clvtu *'^® poace, (x) riots (?/) or (listiirbanees (z) within the Court- room or l)uil(lin<^ in wliidi tho Court is lufld, or in tlie puldic streets, stjuares, (a) or otlier places witliin tlie hearing of the Court, and may, with or without warrant, (6) arrest all parties offending against the meaning of tliis clause, and forthwith (c) bring sucli offenders before the nearest Justice of the Peace, (d) or any other judicial offic»!r (e) having power to investigate the matter or to adjudicate thereui)on. C. S. U. C. c. 19, 8. 183. Fees of Clerks and Bailiffs, &g. ('Inks and 4K. The Clerks and Bailiffs shall l>e psiid by fees, (/) as jpiiidbyfees. provided and allowed by the General Rules or Orders next day, the p<arty should be l>r()ught promptly before the Court, or Ijoforo a Magistrate, and a complaint l)e formally lodged, as any unreasonable detention would not be justiHable:" 4 U. C. L. J. 110. (x) These are offences against the public, which are cither actual violations of the law, or constructively so, by tending to make others break it: Whar- ton, 108. (//) A riot is defined to be a tumultuous disturbance of the j)eace by three persons or more Jissembling of their own authority with an intent mutually to assist one another against any one who shall oppose them in the execution of some enterprise of a private nature, and afterwards executing the same in a A'ioleiit and turbulent manner, to the terr»r of the j>eople, whether the act intended were of itself lawful or unlawful : Wharton, 0(59. {z) Anything M'hich would annoy or interfere with the Judge, or any of the officers of the Court, or otliera ei\gaged in any business before the Cfuirt, would be a " disturbance " within the meaning of this pmt of the section: Whar- ton, 240. {a) It was lielil, under the Statute 27 Qcn. III. cap. 28, section 5, in respect to the word "scpiare," that such word meant all rectangular figures only: Attorncii-Oi'noral v. (Jaxt PItifc (UdMCompami, 1 Anst. 39. But it is submitted that any open area in a City, Town or Village dcilicated to the uses of the public would be a "square " within the meaning of this clause. (/i) The fullest powers of a Constable are hereby conferred on the BailifT. See Roscoe's N. I*., 13 Ed., 1168, title, "Acticms against (Constables," for a digest of the law in reference to the duties, rights and liabilities of Constables (f) Within a reasonable time : Toinn v. Wihon, 4 B. & S. 455 ; Maxwell on Statutes, 311. (il) This, being a penal statute, must be construed with reasonable strictness. Tn lifxv. Harvi>>f, 1 Wils. "near" was so construed in a ])eniil statute, yet not equivalent to "next," the Court remarking that "there must he ;i reasonable vicinity of which the Court will judge." (e) In Cities and Towns where there is a Police Magistrate, he would be the 2>roner person : Rev. Stat. caj). 72, ss. 4 & G. Where the offence is one not triable summarily, then of course he is to "investigate the matter" only, but if the subject of summary conviction, then he should "adjudicate" upon it. {f) See the notes to the tariff of fees of Clerks and Bailiffs. The table of fees contains all the services for which Clerks and Bailiffs are entitled to charge. No ss. 48, 49.] FEES OF JURORS AND APPRAISERS. 39 .ippHcable to Division Coiivts, heretofore in force or here- .it'tcr tube inado by the Board of County Judges, and approved under the provisions of the two hundred and thirty -eighth hoctiou of this Act. 2. Until otherwise provided by such General Rules or FocRof ■ '' _ jtirois and Orders, the fees to be taken and i-eceived by Jurors and iiiipiiiiHers. Appraisers shall be as follows : — • Each Juror sworu (y) in any cause, {oiif uf the money depnsiteil with the Clerk fur Juror'tt Fveji) Ten Cent.'<. To each Appraiser, during the time actually employed (/t) in apprjvising goods, (to he }taid in Jir.it intitunee hij the plaintiff and nllonrd in costs of the cause) ^\fly Cents jwr day. See C. S. U. C. c. 19, ss. 32 & 49 ; 32 V. c. 23, s. 22. 48. A tabu- of all .such fees shall be hung ui) in some 7,''''°"'! «'onsi)icuons place (/) in the oifices of the several Clerks. I'miK'ui' ' ' ^ 111 Clerk's C. S. U. C. c. 19, s. 49 offlcf. 49, The fees upon every proceeding shall, on or before Ft'i's to bo, .such proceeding, {k) be paid in the tirst instance by the iiiaintitror local tariff or user in any particular County can give any additional right : In !••' Dartnell and the Court of (lineral Quarter Sesf<ioiis of I'nsroff <tnd Jiiis.stdl, 2() r. C if. 4,S0. As to tlie punishment of Clerks and Bailiffs for e.vtortion, sec notes to section 'J18. ((/) A Juror uuist be uctiudhj sworn in a cause before ho is entitled to the small fee here allowed. (/y) It is seldom that an appraisement will take more than part of a day to make ; if tlie whole or only )>art of a day, in either case the appraiser would lie entitled to the fee. and the Scanie for the whole or jiart of any suliseipient day in which he migl't Ihj "actually" and, we will say, neeet.<<arily employed : nee n<»te8 to section 1!)2. ((■) This provision is made for the purpose of giving information to the pubUc. ik) It is submitted that the word " jiroceeding " liere sliould receive a lil»eral luterjiretation, and must be lield to apply to every act done by a ( 'Icrk to irhieh 'I f'ee is by the tariff attached. For instance, taxing costs lias been hehl to l)e a "proceeding" umler a statute not more extensive in its meaning than this: /i"','/. v. The London, Chatham aial Dorer Railway ('"nijiany, I-. U. .3 Q. I?. 170. I'nleas the fee is tirst paid, the Clerk need not perfurm the work. \\ here the Clerk is entitled to a fee which has n<>t Ijeen paiil him, and which he may not have given credit f()r, the Judge would probably refuse to hear the matter: 4 C^. C. L. .J. 81 & 82. If the Clerk gives credit for fees, he trusts to the promise of the party and waives the benefit of this section. It is submitted, however, tiiat moneys coming into his haiids for a p.articular ijerson would, as against that person, be deduetable from or chargeable with the fees so due by him t() such a Clerk : 10 1', ( '. I,. J. 21)1. It is better, however, for Clerks to adopt the cash system, and save any diificulty that might arise in this way, or have the right to retain moneys under special agreement. A person entering a suit ,1, ,( V«^\i,.-V( ■ '••T'k. '"•■ • • •'■•■ij.» '*.,.> . ., k 40 Sr.MMARY MODE OF ENFORCING CLEUK S FEES. [s. 50. (Irfi'iidant III lirst Ill.StUIICt'. Ilnw mforowl if ii'jt imitl. ])liiititiir, or other party (/) at Avhost^ instance the pi'oct-'edinii takes phice. (.'. S. U. C. c. 19, s. 50. »»0. If the fees are not paid in tlie fii-st instance by thf phiintiff or party on whoso hohalt' siU'h proceeding is to !»•' liad, the ]>ayMient thcu'eof may, by onhn- of the; .Judj^e, (//*) Ih! enforced by execution in like inanncn* as a judguient of the Court, by such ways and means as any debt or damagc^s ordered t(t be paid by tlie (Jourt can be recovered. C. S. U. C c. 19, s. 51. ;.. .4 No. Ill the Tk'twecii for another ami becoming responsible for cctsts, sliould receive the money wlien m.ide indcjiendently of any claim tlie ('lerk niiglit have against the .suitor. The Clerk is n<it bound to jiay a defendant, wlio has sueeeetled, hi.s witness fees out of money dejiosited by plaintitl' towards costs: 4 U. C b. J. 178. (!) I'his is intended to cover such a case as the assignee of a judgment seeking to eiift)ree it. (i)i) This is a summary proceeding and must be strictly exercised : F/cfr/icr v. <'alt/in>i>, (i l^. B. 880 S'.H. The <lefaulting Jiarty must have an opportunity of being beard: see notes to section 'Mi. 'I'bere should lie a suumions to shew cause: Jiiil/i-n v. Mmxlh; V.i ('. V. |L>(5; In Appeal, 'J K. & A. .S7!> ; Maxwell on tStatutes, 3'i.">. It may be in this form and entitle<l in the original suit: ICHlott V. S/xirroii; I H. &'\V. H70; Lelr v. Voi/le, 1 Dowl. N. S. 93*2; SiiUir v. McLiod, 10 r. ('.. L. J. L'!M>. Division Court for the Comity of A. I). 187S>. A.li. riaintitt", and ( C. D. Defendant. To the abov" named I'lantiff : You are bereby summoned to he .and appear at the next sittings of this Court, to be holden at the Town Hall (or <tK the rase niaij he) in the of in the County of on day, the day of A. I). 18 at the hour of of the clock in the noon, then an<l there to shen cause why an order should not ho made .against you to ]»ay the fees now remain- ing unpaid of the above mentione<l suit, amounting to the sum of dollars and cents, .according to the provisions of the fiftieth section of the Division Courts Act, and in the event of your not so apj)earing an order to pay the same in to the Clerk of the said Court may nevertheless he made against you. Dated this day of A. D. 18 . Jixhfi-. Tliere is notliing in the section to prevent the summons being made return- .•ible at the Judge's Chaml)ers, in the County Town ; but it is more consistent with the spirit of Division (^ourt law to make it returnable .at some sittings of the Court in which the suit was entered or proceeding taken, or in tlie party's own division. The summons is usually applied for on behalf of tlie Clerk, and should be founded on an attidavit of facts. If an «>rder be niiwle, then execution may, after the entry of such order in the procedure Ixiok, issue u])(m it, in the same way as on an ordinary judgment; see notes t<i section !')(>. The summons shcmld he served a reasonable time before its return. It is submitted that the law regul.ating the time of service of other summonses does not api)ly to a case under this section. What is a reasonable time must be <letermined with refereuue to the circumatauces of each particular case. There should be au s. 51, 52.] bailiff's fees to be i'AID in advance. 41 Hfi, (}i) At tho time of the issue of the execution, the 1',','.!,'',^, J*^. lliilitr's fees thereon shall bo paid to the Clerk, uiitl shall i;'i'i •',' , 1)V him be i)ai(l over to tho Bailift', upon the return of the <■>''""''"" (txeciution, and not before, but if the IJaililV does not become entitled to any part, or becomes entitled to a part only, of !-ut'li fees, the whole or surplus shall on demand be by the Clerk rt'paid to the plaintifl' or party from whoiU the f(;es were received. C. S. U. C. c. 19, s. 52. H'i. If the Bailiff neglects to return any process or exe- H.iiiiirto ciition within the time reipiired by law, (o) he shall for (!ach Ur m-iiM ts such neglect forfeit his fet!s therc^on, and all fees so forfeited wiit, aHii'ivvit <»f jiLTSonal servioe of the sununoiis, or tliat it came to tlio kiiowlcilgt! of tuo I'laintiH' or "party ou whoso behalf" tlio i)rocce(liiig was taken: WarU V. Wince, [i 1*. If. 130. The order may be in this form: (Title of Court ami Cause). V\)i'n reading the sunimoaa herein granted on the day of last {or iiiMiiiut) the alKdavit fileil, the atHdavit of service thereof, and ujKin hearing the C'krk of the saiil Division <!ourt, and tlie said {/'litiiitijl', or ax the ram 111(11/ he) or {" tiiid no c.ausr hc'ui;/ nhrwii,") I do order that the said do pay to the ('lerk of this Court the sum of dollars within days from this date, as the fees which should liave been paid by him to the Clerk of tliis Court on the proceedings herein, and which now venuiin unpaid. Dated thia day of 18 . Jh(I<i<\ As the order can be enforced in the same way as an order under the 1 ofith section, there is no need of its being served. No provision is made for the costs of this i)rocceding; therefore the order cannot include costs. As Clerks are freiiuently wronged of their fees, this section was evidently intended to give them a sununvry remedy therefor. Otherwise they would have to sue for them in an adjoining division. [n] This section is intended to protect tho BailifF. What "the Bailiff's fees" on an execution may be is a matter of uncertainty. If he can find nothing; to seize, his fees must be trifling ; mileage in such cases not l)eing allowable. iSliouhl he seize any property, it is usually sutiicieut to meet his fees. The clause, however, has more especiai reference to a case where, after seizure and l)efore sale, the ease is settled between the parties to the j)rejudice of the Bailiff. In some cases, Clerks have abused the power conferred by this section, and have extorted large sums in cases where there was every reasonable proba- bility of the debt being paid the Bailiff instantly ou demand, or tiie execution returned nulla bona. It is the duty of tht t.!lerk in this, as in other cases, to tax the Bailiff's fees, and prevent any charges ';eing ma<le not sanctioned by the tariff. In many cases, too little regard is paid to this part of their duty by Clerks. On the execution being returned by the Bailitt", the Clerk shouKl forth- with make a return of the mcmey, if returned "money made," to the party entitled ; and if on foreign transcript, to the proper (Jlerk. If returned itnlla bona, then also, should he duly notify the parties entitled : sec Rides 95 and {)(}. (y) See notes to section 1(53, as to whom an execution should be returned. The penalty of forfeiture of fees is intended to compel Bailiffs to duly make their returns. As to the return of summousos, see Rule 90. As this section •■■•.'■»«•, 'i.V* *» ■ r'/.t ■^/J!:-- 42 JURTSnif'TION OF COURTS. [s. r)3. shall 1)0 hold to liiivo hoon roooivod hv the Clork, wlio hIiiiII k(H>|) a H]M!ciul iic(!ount thovoof, and account for and pay over . , , tho sanuf to tin* (!ountv Ci'own Attornt^y, to Ito l)y him iiaid And Hurli - ^ ^ J I foi'stciio over to tho Provincial TrcasurcM', to form i)art of tlui Con- to (j.m. ' Ur\: Fiiud. Holidated Rovonuc Fund. C. S. U. C. c. ID, s. r)3. JURISDICTION OF DIVISION COUIITS. uiiicii (.'(.mt 5*J. Tlio Division Courts .shall not have juri.sdiction (/>) jiirisaictlon. in ^ny of the following cases : hiifl for its (tl)juct tlic cnmyiclline of MailiffH to mako their retuma with proper liiHpiiteli, it is tho duty of (Uurka to oxivct the penalties, keejt a proper account <'f same, ami return the moneys to the ('ounty (Jrown Attorney. (/>) The Division Courts are from their nature f Courts of limited jurisdiction. They are the creatures of the statute ; and to the Act of Parliament to w!iieli tli(!y owe their existence, am! from whieli they derive their powers, nuint we look for their jurisdiction over persons and matters. They possess no coiiunon \:i\y authority .as the (-ourts of the Sovmeign, hnt on the contrary, their authority is delined and restricted in their creation. Jutljjtes of tiiese Coiu'ts. and tlie oHlcers executing their process, cannot exceed the statutory jurisdiction with impunity. A .ludge may he entirely erroneous in his opinion of law on a • piestion ivitliin his jurisdiction, and tluire is Jin entire inununity from conse- • (ueiices at the suit of the injured party ; l>ut the very moment lie transgresses th:vt lioundary which the Legislature has thought proper to jilace on his power, then he is lialile for any wrong conunitted, in the same w.iy an any other imliviilual, if he knew or had the means of knowing the want of jurisiliction. ■'The jurisdiction which lie exercises is a jurisdiction conferred ami linuted hy statute, and if the conditions preceilent to its exercise do not exist, the whole proceeding in the Court is I'unini iioii jiiilici' : /irr Lush, J., in Serji'tiut v. Dale, •_• g. r>. 1),, at page ,")(;(); t',tl<l<r V. Ilalbl, 3 Moore V. C. 28; Ctirnifl v. Mi>rh>y, I Cl H. 18; llunhlin v. Sniith, 14 Q. B. 841; and Onihnmw Smart H ,i/., IS v. C. H. 482. The Diiilssiiin of a duty cast ui>on the .Judge renders hiin liahle at the suit of a jjcrson injured : J'nrks v. /^rnv'.f, 10 C. 1*. '229. The law makes no presumption in favour of inferior jurisdictions, Ijut it will intend iiothing .igainst them: Christie v. rnirin, 11 A. & E. JITO, ;'"/• ('oleridge, J. ; an(^ Li re (%rb\ 2 Q. H. (>;W, per Lord Deiiman ; Hiifh,, v. Moodie, 13 C. P., at i>age 138, per Draper, (!. J. And as a general rule every circumstance required hy tha statute to give jurisdiction inn4 appear on the f.ace of the proceedings or hy reasonahle uitendment: lie.r v. All Stunts, Situthninpton, 7 H- & C. 7!M), ])er Hidroyd, J.; Gosset v. Unwunl, 1(1 (). li. 411; Hei]. v. lleUimj, 1 Strange, 8 ; and lieij v. Tutneas, 11 Q. B. 80. Should a Division Court ausume jurisdiction where it has none, the remedy is Prohibition. Should the .Judge refuse to consii'.er or adjudicate on a matter witlun his jurisdiction, the remedy is iiumilamitH. These have been considered prerogative writs. In a late case of 111 re Stratford and Huron Ji'nilwa;/ Couipatni, anil the Corporation of the Couiiti) of Perth, 38 U. C. K. 112, in api)eal, the present Chief Justice of that I'ourt appears to think that the writ uf mandamus is not invested with its ]irerogative chariveter in this Province. I'rohihition. — In the first place, as to the writ. The origin of this writ will he found fully and lucidly iliscussed hy Brett, J., in Worthinijton v. Jeffries, at page 381 of L. R. 10 (J. P. It is a writ of right: Jackson v. Beaumont, 11 Kx. 300. This writ will not lie to an Inferior Court where the subject of a suit there is within its jurisdiction, though in the proceedings matter ia stated s. r)3.] PRoirmiTiov. 48 whic'li is out of its jurimlictioii, iinlt'SH flu; Court is ^ninjr on to try such matter: l)u/>ii.iv. Jiiihutin, I II. hliick, 1(H). 'I'lic writ iiiij.'lit not tn lu- «r;uiti'<l, niilcss it lie uimU' eli'iirly to iviipoar tluit iiinU'r no view of tlie f.'vits Iwih the Inferior < 'ourt jiiri.Milietion. It wns In hi that the writ ilid not lie where tlit; liif«'rior ( 'oiirt liiiil only juri«<liotion over ]»art of the inatttir: Vnrslnkr v. Mnpliilnrdin, '2 T. 11. 4T,i; itut see FUz-^iiiniinn/i v. Mi'luliir>\ A W \\. Il!(;iin(l In /r Wuhh v. /miiilci, 1 Iv it H. :\H:\; Kfiiiii v. K'liiii,'^. H. & H. Si«». Nor where the matter is iiiiinaterial: Jiiiltirirortli v. H'r/Z/vr, 'A Hurr. KiHIt. Nor for nii.stake in law if within the jurirtdiotion of the ('(mrt: 'I'nt'f v. Hninnr, "> ( ', |{. Iti'J, Li.nlin diid Minis/i)- Union v. Sonthijittc, II) Kx. 201 ; tJllix v. Wntt, « C. H. (iU; In r<^ i/msH V. Minn H al., '2t) IJ. ('. H. I'-'.l; Zo/inili v. Snil//i, '» |). ,t l>. ti.S'); A'o/vw v. rVu-- W/;/M., !()('. H. N. S. :«»(>; y^;/- V. TwUs, T.. |{. 4 i). H. 407. Where the want III jurisdiction appears on tlie face of the; jjroeeedinj^s, the ( 'ourt will not grant a 1 rohihition after sentent'e or judgment: liulnrtu v. Ihtnthji, ',\ M. & \V. I'-'O. lilt reason for it is given l>y Tonl Ahinger, ('. H., at page l'2'J. He says, '''rhe principle of the rule soonis to he this, that if you wait and take the chance of a sentence in your favour you cannot afterwards ohjeet to the jurisdiction, unit ss it ain)ears on the face of the proceedings that the Court had no jurisdiction." it is said to he doulitful if it will he granted after execution levied ; IhihUitmn v. /jiiiiiiilidn, '2 Kx. 'AXi. Hut it was Ik /il not too late in the later case of Kiniptmi v. ll'/ViV//, !> C. H. 711); see also (iniluim v. Swart it al., 18 U. C. 1!. 482. In cases wliere there is an ii])peal, it has heen Inlif. that this writ can even he moved for then: Ifarrhii/ton v. J{ani.^(ti/, 8 Kx, 87!). It will not l)e granted ;ifter judgment unless it is ])erfectly i:lear that there has been an excess of jurisdiction: Jfinirilo v. Maiih iiliiiul linanl of llntlth, 2 H. i"fe N. 2.")7. Nor will it he granted where the jurisdiction is doubtful: In re Hirrli, 15 C. 15. 74H. The Court is hound to interfere and grant tliis writ at the instance of a stranger as freely as to a party to the suit: De llnliir v. 'I'lii' (Jneen af Partmial, 17 C^. H. 171; li<drr v. (.'lark, L. H. 8 C. IV 121, note 1: lirhhje y. lirum-h, \ C. 1'. I>. (iHh, in-r Brett, J. Where an Inferior Court proceeds in a cause properly within it; jurisdiction, no prohibition can be awarded until some ((uestion is laistd which the Court is incompetent to tiy. but where the foundation for tho jurisdiction is defective, a prohii)ition may be applied for at once: Lavilon i.Miiilor, A-.) V. Coj; L. K. 2 H. L. 2.S!). If defect of jurisdiction is distinctly hrought to the notice of the -ludge. it is eipiivalent to its appear'ng on the face of tlic proceedings, /ley Pollock, C. IJ., in the case of Denton v. Mar.sliall, 1 H. & C. (i.'id. Where a defendant apjtears at the trial, and whilst the cast) is ])roceeding makes no objection to the jurisdictifin, but suHers the (,'ourt to act without jirfi- tcst or objection, as if it ha<l jurisdiction down to actual payment of damagea and costs, it is too late to ai)ply for a ]»rohibition, even though the ])arty had no oiiportunity of apjilying sf)oner, uidess the want of jurisdiction api)ears on the face of the proceedings: Vate.t v. Pahner, (J I >. it L. 283; lieij. v. IVidilo/), L. R. 2 C. C. 3; lilake v. lieerli, 1 Ex. 1). 32r), per Cleasby, H. Material delay will be a bar to the writ: In re Denton v. Mar.iliall, I H. & ('. 054. In a case of Smart V. O'Ji'e'illfi et al., from the lirst DiN-ision Court of the ("ounty of Wentworth, fier Armour, J., it was held that where a person submits to the jurisdiction assumed by the Judge without objection or protest, he is not entitled to j)rohibition two months after judgment even though debt and costs remain unpaid : stse also /m ;•<■ Cle<ih<>rn and Mnnn, 2 K. .1. X. S. 133. A defendant is not Ixmnd to wait for trial in a Division Court, he m.ay at any time tluring the action move for a jiroliibition : Senrll \. Jone.s, 1,5 Jur. 1.53; 1 L. M. & P. ")2r>, s. c. Formerly ,,. •ludge in Chambers had not power to oi-der writ of prohiliition : In re Kemp v. Oiirn, 10 U. C. L. J. 269. But he has now, Kev. Stat. Cap. .V2, section 3. The right to prohibition is only taken away by express statutory enactment : Oram v. Itreareij, 2 Ex. D. 34(5. It is no ground for granting the writ, that the .Judgti decided against law and good conscience : Shhlall v. Oihxon et al., 17 V. < '. H. J)8. Where facts disputed in apitlication for prohibition, the certifioate of the Jutlge ;v; . ;•;.■ •■'■ff-' •^i,- ■• .. ■ >'iU Vi ''tit K 44 ruoiiiniTiox. [s. 5:{. was licld to giiverii : //( ri' iUnrkr, '1 \,. J. N. S. '.?()(>. A jKirty applying fur |iriiliil(iti()ii must lay lict'ori; the Court all tlu; materials on wjiicli ordor in IntVriiT Court was ji;ranti'il ; /// n- </;•((,« v. Alhiii d a/., M [J. C. I{. I'J.'J. Where a)i)iii- cant iiad er.iss-examined witnesses, urj,'ued the ease, and had taken no exuep tion, he was liei<l preeluded fnmi nbjectini,' to jurisdiction : In /•<■ /iiirrairiK, IS ('. I*. 4!(.S. Where .lud'^e has jmisdietion, proliihition will not pi for mere mat- ters of praotiee : /'J/lis v. l^<(/^ ,S I ". 15. (il4 ; /.V MrLmii v. MrLv„l, A 1'. 15. 4(57. Wiieii (pU'stioii of jiirisdii'tion not raisi'd in I'oui't lielow, »,i^vyi r/if/i v. Clijlunf, • J I'. !!. '_'l'_'. Wlu're a.lud^'i' niakei an order whicii, thonj.,di jiossilily errtineous in itsidf, is made at the recjuest of one of the parties and is acted on, such Jiarty cannot oiitain i»roiiil)itioii : H'lrlnirilsmi v. S/i<tir, (i I'. \\. '2\Hi. ("overture is no fjrouiul for prohihition ; it should he set up in th<! Court lie..)W : Jt'<ititv. Wcdi/f, 'JO r. ( '. !!. 4M Where the title to land comes in ipiestion, it is tiie duty of the Judge to en(|uiix; int<» the fact, and it is only where siu'ii t(Uestion nr/iin/h/ ((/v'.sr.s that the jurisd.iction of tiie ( 'ourt is ousted : LiiIIkhii v. Sjiidilinii, 17 (}■ H. 4-U) ; hut see ( 'iiii/soii V. ft'<'i>iuii /', 'J!M '. 1'. .Sll. illustrative of the same principle, see /« /■)' hi.ioti V. Siiari\ (i I'. It. .'{.'{(J, and cases cited. If acjuestion of title to land arises, the -Judge must of necessity determiae that point lirst, yet the <|Uestion is still ope'i to a party on prohibition : TIk mi />■•<( m v. /ikj/kihi, 14 (). H. 7HI ; and if determiiied wrongly prohilution lies: /A liotnii, ir> .Jur. ll'.H); Sv,i;ll V. /(,/(-.., I L. .\1. & r. o^io; Kiin/itoti v. Willr,/, !) C. li. 7I!»; o i>. & I.. <i-lS, s. c. A ('ourt cannot give itself jurisdiction hy a false recital or finding of fa(;ts ; sec the .American .Notes to ('In ir v. Ilnlrinjil, S lOx. '1A\) (.Vmt'rican l']d.). I'rohiliitiou will not go w liere the jilaint stated a matter within the Judges jurisdiction, and the ohji'ction to the jurisdiction arose on contested facts which the Judge had |)owir to eni|uire into, and the decision on the merits turned on the very jioiut on which the (piestion of jurisiliction arose, and the atlidavits wcp' conllicting : ./',«(//// v. //inr/i, I I,. .M. »V I'. ;{iSH. Intil the Judge has had an i»|tportunity 'if intpiiring into the disjiuted facts relative to jurisdiction, prohiliition will not lie: Di.iim v. Siiarr, (i I'. I!. .'{.'{(J. Trespjiss for false iiii- iirisonment is within the jurisdiction of a jtivision Court : C/iinrs v. SunKjc, ,') •]. & 15. ((((7 ; an<l where in that ease the Judge, in his judgment, us('d expres- sions from which it appcareil that he had de;i.lt with the facts ujton the (|uestion of damages, as if it were a case for malicious prosecution, it was held there was no gic uud f(>r prohihition. Ihit a Supi-rioi ('ourt is not ccuilincil t'- the jiai'ticu lars, hut may look at actual facts to ascertain if jurisdiction in Inferior ( ou?t exists, and if not. prohihition will go : /hiiif v. \orlli Sti<(}'iirilxliirf Itnihrni) Coiiijiiini/, '2 H. it N. 4.">1. A piohiiuti'tn will not he granted hecause the Judge has received impro|iei' evidince : ir/;/.'«(C v. Diinjurd, ''2 (,|. H. ()()J. An appli- (■ation for plaint was correctly made, .and correctly eiitcri'd against defendant ad (executor :'f 1'". W. 'J'aylor. hut the summons descriluul him as execut<u' of W. 'Thompson. At the heai'ing, tlie .iiiilgc, u|)on it lieiug repri'sentinl to him that the Statute of Limitations woiiM inteivcue to har the el; iim directed a fresh Mummons to issue, hearing tlie same date and ntimher as the lirst. //(/(/, thi.t the Court would not interfere with the course taken hy the Jnilge : Fosf.r y. Tciiipit', r> I), it li. ()."),"). A defoidaiit oniinitted on a judgment summons .after ilischarge under Insolvent Act in entitled to he discharged, hut prohihition will Jiot lie : S/illy. limilli, \ L. .M. & I'. 4i(). A tufa/ innif of jurisdiction cannot he cured hy the assent of parties ; ./o//(.v v. Oirrn, ."> U. & I.. ()(>'.(. A statute giving appeal, or taking .av.iy rirlioniri, does not prevent prohihition : I'lnrn v. iV.U ■J L. M. it I'. .')1"\ The same oiise deeifles that where an (J)je('tion is taken to the jurisdiction, tin; Judge ought to enter it on the proceedings, in order that a Superior Court may see if there is ground for prohihition. Wlwre a cause is referred hy consent without any ohject.ins to •luisdiction, hut during progress of the reference, title ti» land came in i(ii 'stioii :'!id one of the partii's ohjected, hut the arhitratois proccedetl. iirohiliitiou was held to li'; : A'/(o(/7(.s' v. JJuldiii, -4 L. J . Ex, '2'23. A party who objects to juriadictiou does n( t iii England s, r)3.1 pnoirtniTiov, 49 waive ri^lit to prohilntioii by ohtriiniii^' from tlio Judgo a stiitt'iiieiit of case for issue on of Supi'rinr Ciiurt : Jdi-ksmi v. />V ,'/, II Kx. .SOU, I'lnliil.if.ion inav ifter jmlgiiii'iit fur an i>xcfs,s of jnrisfliction, nut apjjcarinj; on tlii' faix' of tlio iPiin'ci'diiigN : MiiiK</( II V. Wiii'ilh', .'{ Iv & |{. (}!(.">. It is nojjrfMuiil foi' jiroliiliitioM tliat iiiuler profcsH to levy a sum wiMkiii its jnrisdii-tion tlic oliii'ir lias «ei/,e<i pn pi'i'ty to a >,'n'atiT animuit : S I ,r jnirti IH .1 mist, "t'J'J. A .Iiidxe took tiino to conBiilor as to nonsuiting mi tin; ground of want of jurisdiction, and prohibition issued hefore he decidvd, and he then nonsuited the piaintill', and awarded coyts against him. A rule for prohibition was mad" .altsolnte : Linri'uril V. I'lirir'nlijc, I II. k N. (i'JI ; anil when the jnrisdiction is ousted, the Judges can do nothing. I'ovli ij v. WhUdinui, l(i l'. (,'. 11. oS!* ; Ln'r/ur,/ v. I'mlr'nhii , \ W. k N! ()-M ; *'nw)>h<n V. /)<in>/si,ii, H» U. (', It. '-"-'•_'; \!r/i<,//H v. Lnwlii, MIC. r. MiO; Uixlijxnii V. (•'niliiiin, '_»() I', ( ". I!. 1'_'7 ; /" '•'■ Kingston td( ction. .Sfiinirt V. " n/diKild, 41 i. ('. 1!., at page .'tl.'^; hut sei^ <!riiit XnriliTii diitt Limdou (iiiit Xortli-W<i<fi'ni Jaiiit CtiiinitUlu v. IikII, 'J t.). \\. |). '_'S4. VVhero it /rriiiK r jiic'ic ajipears, and is not denied, that title to land will conie in (pusti( 111 prohihition Mill go : ^f'lrani v. Morr'ish, 1 1 « '. I'. 74. Tlven though title to land may come in question in an intei'|d*'ader suit, jirohiliition <liies not lie ; Mini'ii< \. MiKhiliji it (il., 1") (' I', ."id. .\s to an action of tiesji.i.vs for ri'inov.'il of raii>* of a fi'uct' raising title lo land, sec Jii n- liriulslnnr v. /iii[l)i, 4 I'. 15. .")(). I!ail- way companies " live and carry on husineiss ' only .at their head ollicc, and garni- shee proceedings c<innnt'nce<l elsewlier<! will he prohiliited : Ahi'< nx v. M<<,'i//i</(tf, firand Trunk Itailw.'iy ('om]i;niy, (Jarnishecs, '2'A ('. I'. 171. In W<s/i,ri r v. Turner, (irand Trurdc 'i.iilw.iy ComjKiny, •iarnishees. '2(! • '. |'. filO, it was lud.' that the garnishees having a factory for the niakin;; and npair of lolling stock iiscil on the roa<l, and eni]iloying a nnmher of workmni there in, did not render the garnishee jiroceedingK at any place hut the heail otiice valid, ami prohihition was grinteil. j\n irngnlarity in a matter of practice merely is not a }."'ouml for interfering l>y jirohihition : Jo//;/ v. IIu'iiks, I'J A. A; K. 'ji'l ; /// re l/iiiijiii- /iiiI/kiiii v. M(iiir','2\ r. ( '. 1!. .'i'_'(). A plaintilliannot, by giving defendant <redit for a Kct-otl', compel him to set it u]i, nor tlnis give juris''ietion to tln^ ( 'ourt : Fur- ii'ri/y. S(niii'/i r.'^, '2(\V.C. It. I l!» ; nee also Mr Mmirii v. Minnn, 14 V . ('. 1!. KKi. I'laintitl, \\ ho had iieen employed !»y defcmliints to piireiiase wool on comniissioii. sued tliem iu I)ivision ('ourt for commis.sion, .and .'^'O ]iai(l to an assistant. Jt ap]ieared that defendant had furnished )>l.'iiiitiir with .'51,1111), and piaintill' had eN|ieudeil .S.StJ beyond that sum in ])urchasing wool, but no (|uestion \\•,\.:^ made lit the trial as to tlu' due e\))endituri' of .<l, 1(10 ; the only (|i:estion being Mhether |i!aiiitiir was entitled to any <'onmiission at ;dl. and no claim was made for the if-'M't or any part of it, the ])l;iiiitill s deiiiiind being > niihueil to tiie commission 'dainied oil the (pi.antity of wdol pun hased, aicl not on the jiricc paid ; it was A- A/ not to Ik- an action for the balance' of an unsettled account excceiiing .?'.'; u;, the h;d;ince of nnaettled account being the >^'M, w hieh was not in (picHtion, .:> ;.ro- hihition was refused. Ih /il also, that this was not a s]ilittiiig of a ileUiaiid, but two separjite <";iuses of action : .I/cA'.k v. A'- /'////•< <> o/.. '_*0 ( '. 1'. ],■("). Where suit is drought in wrong division, |iidhiiiition is the remedy : Wnit v. VmiEri ru 'till., •_':{ r. ('. It. I!tt); Kiiii/)\. Oimi, 14('. I'. 4.'{'.' ; t'a'rs/iji v. /■';.-./•'» ,/„/.', ■k V. I!. •J.'i.') ; <lo/i/ V. Tin-Ill r, \j. K. 10 ( '. \'. NK ; or for an .imount beyond jurisdiction of the Court: In >•'■ 77(c Jiii/iji' nf l/n Cniinti/ Cnur/ iif' f/ic ('. ('. of Snrtliuiiiliir/oiii/ it' J)iir/ifiiii, l!( (.', 1*. '2!Mt. 'I'he hohler of a proniissory note payable to "A. li. or bearer," endorsed it ovi-r to a third party. It was held tiiat an action could be brought against boili ni.akcr ,and endorser in the l)i\ision Court for the division in which the emlorser r< sided, and that the i[ueNtion of whether or not the endorsement was made in ordei to give jurisdiction could not he enijiiired into ; lli ii/ifs v. />o (/;//<( >, l,'{ I,, .f. N. .S, .SoS. Should a .ludge of his own accord, and ag.iinst the will of the defendant, amend the particulars hy reducing the claim (o an amount within tin' jurisdiction of the Court, pro- hibition would lie : J/i//, In n , 10 Ex. 7-0 ; Unjijn r \. Wurburtun, 3'J L. .J. (j. B, .1. ■','•'■* ■■■.^":-Bi^'f| ■'riJ**."'*".!-:'.- '.'.■•i!.:';'iH\.i , J •'/('.■ .S'^' "i.'V '• . ■>'>•..;■;' 'y:~ ..' ./•^^■■-:;"-^'- • ■ -'¥^^ ,•■ '• . ■. • ;. v'-'S ;;„■.,■'•>• ■ -v ■ ■V> •'..,;• . '■f'&M.'^ ..( .'*' '.1* ■ '. ' ': . ■'v.'.'i'Hi 5>. ■.,"'. v;v'''i 46 PROHIDITIOK. [s. 53. .. .1 104 ; 7 Ti. T. N. S. 7'22. Where ft party takes a beticfit under a Jmlge's nnlir, lio cannot aftorwanls ohject that it was made withmit jurisdiutidu : T'lnkdr \. //i/dir, 4 I'lx. 187; linilnln mid Liilcf Hmun /I'tii/iiuii/ ('dnipdin/ v. If<iniuiiiij\i'(tij. 22 IJ. ('. H. 5()2; J/an-is„ii v. iVriij/it, i'A M. & \V.' 81(>. If a dudgo, in ilia- regard (if a statute or rule of Court, proceeds iti v. cause, lie will be prohiliited : Ex jinrti- ArFic, \) Kx. 2(11. Ohjections on tiie gr:>un<l of defect of jurisdiction may lie foiindi;d on tiie cliaracter and constitution of the Inferior Court, the nature of the sulijret matter of the iiiijuiry, or the ali-.ence of sonu' preliminary jinxerding wliich was necessary to ;;ive juriadieti'iu ; hut the objection of defect of jurisdiction cannot be entertained if it rests solely on the ground, that tlu' .lud;j;e lias crnuu'iuisly found a fact which was ('ssential to tlie validity i>f his order, but which he was competent to try ; Tin- ('n'oniiil Ihttik of Aii.ilrnld-iin V. Williiii, I,. 11. ."» 1'. (!. 417. Kor iustancc, if a defendant was Hervotl tin; day before any sitting's with an ordinary summons, should the tiudge insist on jtro- cecdiii^,' with tile hearini,' ..t such sittings, prohibition would Ue : E.r inir/i M'Fi'. !• i'lx. 2(il ; K.r i>iirti- Sfori), 12('. \'>. 7<)7 ; Jmnrx v. '/'/if Simt/i-\Vi!>t< ri, liii'ilicnii ('oiiijiiiiii/, [j. K. 7 Kx. 2iS7 : Srrjcinit v. /)it/c, 2 (). \'>. !>., page "MiH, jji')' Lush, .}. Where a Judge assumes jurisdiction, not by (deciding on conllict- ing facts, l)ut on a wrong assun'ption of a point of law, his decision will be rtvuwed by proiiibition : /'llston v. /»'(/.<«, F,. Iv. 4 Q. B. 4. Where a Superior Court is I'learly of iijiinioii, both with reference to the facts ami law, that an Inferior Court is exceeding its jurisdiction, it is Itoinid to grant a wi'it of proiii- bition, wliethiir a]>)ilied for by defendant or a stranger; or even after a new trial, where no (piestion of jurisdiction previously raised, (5 1*. II. 177. In such a ease, neither t!ie smallness of th(; claim in the suit below nor delay on the jtart of th( -iplicant is a reason for refusing the writ. The ])laintitr in tin- Inferior C.uiiL h;i^ in lui case an absolute right to have the plaintill' in prolii- hitiou put to declare in prohibition : W'nrtliiiHjtini v. Jijt'rii'.i, L. \{. 10 C. I'. 37!'. Hut see ('liiU)iliirK Y. (.'ncii. \.. It. 20 I'iip 'm'2. As to tin; costs in ]irohi- bition, see i'ev. Stat. cap. ^)'2, s. 2, and //u v. K'nHiuu 1 l>owl. 440 ; Ti-ixIiiiiukI V. Ynnlliii, ,") H. & Ad. 458 ; /'I'wtns.s v. //uri'cy, 1 B. & Ad. ir)4 ; (Jnin-n v. S<uii/>rso,i, 7 A. & K. S<>7 n. ; Ax- parh' Tiirkrr, 4 M. &(J. I07!t ; Wliife v. Slii-l, Mi C. B. N. S. 2:11 ; Expnrtv < h-r ):■«■<',•■■< »/ Errrton. L. W. (> « ". I'. 24r. ; Witihir, V. Alliii, L. K. IOC. I'. »}07. AOidavits in sujiport of ;in aitplicatioii for juohi- liition should be entitleil simply in the ( 'ourt, and not in anv cause (/'Jrnii-'*, rx f)nrf\ 2 l>owl. N. S. 410; Sidda/I v. (IVisnii, 17 V. C W- !>« ; In r<- M'inm v. MrCiihi. 4 r. 1;. 171) ; but .itlidavits entitled " In the (,>ueen's Bench, between M. A. /i., plaiutitl', and 11'. /'., defendant, in ])r<ihibitioii," wen- allowed to be read: /{niilmi v. ('ii/>/>, S> .lur. 7H1. So also were allidavits entitled "In the matter of a certain cause in t\w '.'irst Division Court of tin; ( 'ounties of L. & A., ill which /J. .1. .)/. is pl...ntiir a'ld /t. />. is defendant," ludil unobjectionable: III rr //iirri'iois, jH ( '. P. lll.'i. There is im authority in this country for staying jtroceeilings in the Court below |)en<ting prohibition, />' r Wilson, .!., in .\/irini v. MrCaIn, 4 I*. B. 171. Tiiis case was overruled (/// /•« //,ill v. Cnrtniii, 2H V . C. II. W,VM ; but not on any of tlie formal points di'cided on the (piestion of pn.i.il.ition. ReHtitution will not !><■ ordered in prohibition wli«?n the ■^ubject matter of the suit is no longer \Mtliin tlit; control of the Inft'i'ior Court : /)iiit,<ii v. M ir.tliull, III rr, 1 II. it C. (i."i4. When a rule iii.si for a prohibition has been discharged, the ( 'ourt will i.ot allow the motion to Ihi renewed upon atiidavits stating iii.attei not before presented to the Court, but existing at the time of the original .iiipli- oation : /imli iifunn v. /'irhlts, li N. it M. r).'17. It in not necessary that the groundH for i.ssuing a prohibition should a|)pear in the rule or order: Er< fK/iild v. y'li'ii'iui. 4 ( '. B. N. S, 4IS. Where a rule for [irohibition was directed to be servedoii the jilaiiitill'and the .ludge, service of the .ludge and plaiutitl" 's Attorney was held insutiieiciit : J/rr.sv. // v. linrtiii, H Am: N. S I IdS ; 2 H. fi N. r.!(7, 8. c. The defendant slioiild consider th.at the obt:iiiiing!i writ of prohibition, 111 many uusuti will force the plaintill' to sue in a Superior or County (ourt, where he will, %i. 11 V, •ihiri Idlii- (X. ini V. ween th.- it A., >■'">-' (/( V. I{. timi. if tlie I'P'i- the i/irM tn l)e •rncy 8. c. s. 5X] AFFIDAVIT FOR PROHiniTIOK. if lie sHcccctls, lie cntitlod to the costs of that Court : C<>itlnon v. O'Conne//, '2!t ( '. 1'. 'M\. Whore a (luestion of title to livinl arises, the better course ia not to apply lii'fore the heai'iug, for in that case the ilefemlant must ostahlish by atiiil.ivit, not nu'rely that the claim //♦<(// involve a (|uestiou l»e,\ '1 or out of the jurisdiLtioii uf till! (Jourt, hut that it iniisf. iitriMitri/i/ ilo so; otii. rwise the Supci-inr Tnurts will not interfi^re : Davis' ('. (,'. Acts, 8.S. 'I'he application is usually made to a. Indite in Chambers (ivev. Stat. cai). '>2, sees. 'J it .S), and is founded on in allidavit disclosing; all the material tacts. The followinj; form of atiidavit is .suliuiitted as souu'what of a guide, but in every ease the atiiilavit will necessarily he ditForent accordini; to the dilKcrent circumstaiijes : In the C^ucen s Bench (or l-'ommon I'leas). in the ( ounty of and Province of 1, A. li., of the of Onturio make oath aiul say 1. That on the day of \.V-. IH , I was served with annexed copy of summons and particulars of demand tlicn.'to attached, m.arked " A." 'J. 'i'hat 1 am the defendant (nr oiu' uf tin' ilcfi iiilinit'<) in the suit menti>)ued in the said aumJU'ris of against myself (if otlivrH, nainiiKj thtm also), in the l»(,ision (,'oiirt for the [hh'uI) County of 3. Ill attended at tile sittrn^^s of the said Division Court lield on the (hiy of A.D. \H , and ilid there ami then {Hinniijli ('. I)., mil Coiniml or Aijtiit, (in thi' rase mill/ hr) objcet to the jurisdiction of the saiil Division < 'ourt to entertain the sai<l suit, inasniiicli as I ciaiinrd to justify the said alleged trespass by right and title ti 'ii lid close at the time when the said trespass was alleged to have been comnnlteU («/• Ac/v ,■<*•/ <;«< iitiij other ij round of ohji'ction which thr <li']i(>iiriit inmlr, iirroriliilij to thi' rirrumnffliiri'.i of thr rnsi'). 4. That f did there and then oiler to prove before the .Judge of the said (.'ourt that I clid li'iimfili' claim the I'ight and title to the saiil close, ami that the same was my close. ' ..:'d freehold (or irlnitn-rr olhrr J'urt or fiirtn if re n Union hi-fiire the J mi ■ an f^-^i loimj a wunt ifjiiriiilirtion, or what the dafcndanl nthi nrixr oji'i fill to proi'i) 5. 'I'hat the said close in which the said sujiposed tresjiaso was connnitted is j)art ef Lot munber in the concession of the Township of in the Coanty of (i. That I ilid, at the tim;- when the said siijtposed tresjtass was committed, hiiiiii fi'li claim, and fi<ini thence continually liithei-to, have hono I'di- claimed, the soil or freehold of the said land, by virtue of a conveyance (or us the cuni' 111111/ III') thereof, heretofore inaile to me by one (/, //., bearing date the dav of A.D. 18 (or in such other waij an the defenlant r-iinm title to the (ii'iiil). 7. That the said close is part and jtareel of the said land so ccmveyed (or n.* thi ruse ini.i/ lie) as aforesaid, and that the said , the plaintilV in saitl Division Court suit, claims the said close iulversely to jiie, and coi.temls, as I belieM', that the s.ud ;'lose belongs to liiiii, but which I say is not the case. S. That the said .ludge, notwithstanding my tirst objection, and notwith- st.'indiiig my said oH't r to prove my said title as aforesaid, did |iroceed to hear and detei'iniiH! the said cause and gave judgment against nu^ fi'i .«< damages, togi'tlier with costs (or ox the e,ixi null/ lie) on tile said day .A.D. IS , payable in days i 'e I'mihiri/h i>r othi neis, , or ns the !*. That 1 have not j»aid the s.iiil damages or eosts. 10. That execution has (or hsii not) inHUtd against me theref«tr. Swoi- ;, fiC. If prohibition is appliu<l for cm any of the other gronmls of want of jurisdiction, melltiolKMl in sub-seetions I to 7, inellisive, of this seetion, or where the suit is for an amount beyond tin; jiirisdietion of the ( 'lUirt, or where cause of .•letioii is being divided, or where action is brought in the wrong division. A'< . the above allidavit I'aii be altered so as to make it conform to the eircumstances. Tin: allidavit should fully set out ull tuuM aud circumstiiuces of the cuae ; aud it it of eii.-ii iililll he). .'..)• . ■■ /;■.■'.■ ,.r... ,' .V . • .- •■■;•' '■•O' •':•'•' .,;• , I, >,«... -, ,, •, .>'•>'•.•,■..•; ■*•;. .■■•iv'.-'-' •:;^;:i '■ ■ 'I' ^ "^ ■' ■ .,•■•:■<'■. .♦'^"■•." -.i;:.r '■*.{■. *■■ .>:■■•. :V/r "'■.' ■ .. ■.">.•;•*•.,,•'•„• •. ■ ,':. '.l.";!.>k,.-'J'« ■'," • <■■'■'':-'.{ '/•-. . . . • "v ' . , ", • < '.^;^^.'•^^ '» . •^.■ "■V^T- «;• 't .' W""' 'i' . v/".. '«■,..• .' •«/■>•■; • > .•• V B^K^-i \i: u W^^^f ■/:-. ■ * r i ■IS MANDAMUS. 1. Actions for miiv jiXiunl)lini^ debt ;{'/) OV [s. 53, t';u\ he c<irr<il)(ii;itiMl this hIidhIiI he; ddDO in cvory essential ji.ii'ticiil.ir. .linl l)y ;is many atliildv it« as can rcasimalily 1)1- jji-ocuvimI, for it iios on tlic a]t]»ii(;anc ti> malvc "lit a case rfinrhi ui want of jurisdiction it" )>*.' wish. :i ;i,'(iiiiliition on atii.lavit : 'J I.. .?. N. S. •_'(!(; ; '.Mi U. ('. i;. J-JH ; .' H. & N. '.'(i.'l. Mitii'liiiini^. — 'riiis is a lii:^!! iirero^ativt; writ of a most cxti'iisivc rcmeilia' eliara(^tt'r, issnaMc out of fitluT of tln^ Superior Courts of ( 'oinmon Law, <lirecte'l to any ' 'or]ior;'.tion or < 'oinpanv. Infei'ior ( oiirt of jiiilicatun', or ]ii"rson, rec|iiirinf( tlieni to ilo scnne particuiar lliinij s]n'('ilieil tliereiii, wliicli .v|)pertaiiirt to tiieir ollicc anil wliioli it is tiieir duty to perform: Imiiey on Mitndnunix, 1 ; Tapping on Miiitiliiimi.i, passes 4 & .1. As ti' tlie jiriiiciples on wliicii tiiis writ isgr.'Hitcd, see Harr. Coin. Law I'ro. Act, 4(i(> & -Kii ; /// n Tin Slnitfonl uml llin-nii J'ni/iriii/ ('iiiii/iiiiii/ (ind Till' Corjionltiiiti of fhc ('niinfi/ of P( r//i, .'{S l'. ( '. K. 1 I'J; .-end Ifr Till- Iliiiii'illiiH ntiii North WiMitii lln'ilii'iiii ('Diti/iiiii!/, IV.) V. C. it. !(."<. In V.i)^- land, hy virtue of tiie .Statute !!• i^' 'JO \'ic. cap. I(IS. s. ■'',], a summary inoilt; hy summons and order is jirovidcd for eompellini.' a County Court .liidye to do any act ix^lonu'in;; to tile iliities of Ids ottice, liut iicre ♦'lie onl\' renu'dy is liy dkiii- il'iiiiiis. 'I'liis writ will not lie directed to the .fudge of an inferior triliunal, 'inle.-'s he li.is refusi-d to exeri'ise the duty which the iiiinnlii niny .iceUs to coiniiel him to pcrf(U'm : !'■ Mci'nltin'li iiml Tin Jiiili/r i<i' /,ii'ils iiiiil H i-<iinUi\ .'{.") U. C. it. 440. Where the .Indgo, havinjj; Imard the evidence as to jurisdiction, thinks that the cause of .action did not arise within the jurisdiction, it Mas In-hl that lie havini,' hcanl the cause, no nuniilitiiiin would issue to compel him to rehear it. Having exercised his jnrisdietioii his ditcision was tiiial: h'l nm/ v, /ini/ri/, <t nl., 'J I'. < ', ij. ,F. I7>S. Where u|)on an interple.Kh'i- siimmDUs a .liidge ernuieously ilecides ag.ainst a claimant on the ground th.at tin' notice of claim was iiiMillicient (see our itule of Court, No. .'iS), .", iiuimlititiii.t will issue to emnpel him to .idjudieate upon tlu claim: linj. v. li'nlinrili, 2 L. .M. & 1*. U().'{. lint when a .liidgc enters upon tlio hearing of a a.-e, .and from tlu; evidence decides he h.is no jurisdiction to adjudicate upon ii, a ii<iiiiiliuiiii'* will not lie to eoinpcl him to do so; Mlhnr, i-.r /nirti' .").)ur. lO.'li"; AV,/. v. W'l sf /liiliiuj .III si ins. I New. Sess. Cases. '_'47, Q. i>. 'he wiit will luily go to a County Cdiirt .liidge where his jurisdiction i.seliar: Tniinor \. //"Ironil", 7 I'. C. 1{. r»4S. Miiiiiliiiiiiis was refused, to compel a County Court fudge to a]>prove of the security tendered for appeal after the time for giving it had ex|tire(l (Fortl \. Crn'ili, .S U. C. it. 'J74); hut it will go to CKiiipel him to hear and determinu a matter hefore him(//' /( llnrii-i v. liuttirjlilil, VI IJ, C. it. I4(t) ; Imt not to c(»rrect his jiidgmeiit when gi\-en (I Ik), nor to reverse his judgment on a point of practice: In r< ll'/oi/.s v. Itiiimtl, \'l V . ( '. It. M»7. Where a .fudge is interested in a suit, iiiiiiiilnniiif will he refused to compel him to try it; Jii /■' Jinl^ic of • ''(jhi, '20 [' . C. It. ."tSS. It will issue to a Division < 'oiirt Clerk to ciiinpil him t' issue an exoeiition (/i'<;/. v. Flilrlnr, 'J \<]. Ik. B. 'J7'.l; /" /"'' Liinlin I't ii.r. v. Hrchiiiinu, '2!) I'. C. U. I); luit his fee should tirst he tendered him: In ri' 'I itrtisli'ip I'll ih of Kiijiliriisiii, 12 V. C. it. «■»'-"_'. \ demand and nftisal. or what IS e(|uivaleut to tlie Latter, is re(|uired: A'*' /'irl: mid Tin (.'urpio-nliim of tin'. CiHiii/ii of /'i /i rliiiriiiiijli, l\l I'. C. It. \'2\K .\liidavits for iiiiiiiilniiiiis shiuihl propeily he intitled only in the Court in which tlii-y are to he used: /« rr Afiiniri/iiiUliI I'J Aiiijiislii v. Tlir Miiii'iri/>iil ('niiiiril of Linls miil (iri'iirillr, I 1*. It. I'JI : itev. Stat. cap. 5'J, 8. 'Jl. 'I'he application can he m.ide toii.ln<lg(! in Clijiinl rs : Itev. .Stat. caji. .'i'2. s. 17. '/•-'"/. .\s to the apjilication to the ( 'mirt and what must he shewn l»y atiidavit, see Tajiping on Muiiiliiiniis, 'JH'J, chapter l\'. ('/) This may he sivid to he any deht arising from the playing of any game for mom\y or other valualiles : Worcester, (iOIi. A distinction must he kept in view hetween wagers that are leg.al and those that are not. .At ( 'oinnion |,aw most wagers were legal, hut statute law liuu very much circuiiiijurihed them : huc 53.] CJAMHLING DEBTS AND MQUOIIS DRUNK. 49 2. Actions for spirituous or malt li(|Uors drunk in a tiivcrn or alehouse ; (/•) or .'{. Aotioiis ou notes of hand j;jiven wholly or partly in consideration of a gambling debt or for such licpiors ; (s) rutiisi; til pay it ovor on tlu' gnniinl tliiit tin; plaiiitill' liiid nlitaincil tlu- liorsos by fjiiiiililiiiL,' : ./iiiiiii.-xiii V. S/icriroDi/. 14 U. (". I!. '2S'2. A ilot)t uinlfi' a lutti-iy and a ;,Minliliiit; drlit aro vory ditiiirciit : W'lllliriilijf v. Ilnh't. l.'{ \' . ( '. p. ;{<),'>. li :.. .1... I. *»■..! ;f i.i: ;. i i i .. ii. . i' i i. \ i. i i f» L^lbllll'ltlll,^ 'I'. ' f\l IVIVj VV^l T lllllV.lV.llli . IT ''tf'rfdllfl t, f#.'f)''. It is (loiihtfid if ganil)lin;^ is framl ini'ltT tlu; Insnlvciit Act: //( re ./imis, an iiisoKi'iit, 4 I', iv. ,'117. Money lent to enable a pvTsiiii to j,'aiiilile is not recovor- ablf baek (Font V. linbr, .'"> M. & <!. .S.S.")) ; but money lent for the purposes of ii law till ^aiue is : M'K'hi.'k II v. /'Dhlnstui, 'A M. & \V. 4,'U. Money lent to a fiii'nd to piy a ganiblin;^ debt is I'eiioverable back (AlvUihnnik \\ Hull, 1* W'ils. .'{O") ; Kniiilitw t'dinhifs, !")('. i>. .Id'J ; ,/i'y.^i)/>/i v. Ijitluiirli<\ 1(( Kx. til."), /«'/• I'arke, H. ; liiis, iniriw \. /Silliiii/, KtC. li. N. S. .'{Ki; /-J.r /mrlr /'///"". /" '"'■ />'•-''■'■, S ( 'h. D. 7.")4 ; //ill V. /A,.,; i H. & N. ."{."I'.t) ; and is provable a^iinst tlie estate of the borrosNur: Jinhh v. Yilnrlun, \i. K. \) Imj. 471. As to lf;;al ami illc;;al wager.'s and till) recovery of nioiu-y hack, see /iituk of Tonniti) v. Afr/hiininll, '_'S <!. IV :U."); Coinnlifs V. />il>'>li, L. I{. 1 Kx. 'JtH; Jlami>:lni v. ir(f/.-,A, I (,). H. D. |8<J ; /Jiijillc V. //ii/ijs, '2 Kx. 1). 42'2 ; //i'jiiiii><(m v. Sliniixon, 2 ('. P. J). 7<». (/■| It is snbniittori that these words mean liriiisii/ jjlaeea. No (/ihf could be createil for the sale of li(juois druidv anywhere, without there being a license to sell : Kev. Stat. cap. ISI, s. .'{'.» ; Ji'itrliic'v. Sinilli, (". H. 4(»'_'. Whether liciuorn are "spirituous" or "nuilt," i.s a <|uestion of fact, which is bitter to have established by the evidence of a practical chemist : //iir<i,s v. J>ini'<, !( < '. 1$. N. S. \W1. Qitdiir . Would not such a claim be recoveralile in a luLdier ( 'ourt V /.,i-ith V. n'illh, K. T. (1 Will. IV.; //artir;/ v. //r,inis, T. T o .^ (1 \ i.'. As to what is drinking "on the prcnnses," see (frons v. Wdlfs, l.'l ('. H. N. S. '_'.'{'.». [■■<] It is subnutteil that the jurisdiction of the Court is ouste<l, m> matter uhether or not the note is .sueil by the original payee or a lumu jidi holdi'r. It is ipustiouable if in any Oourt the latter wnuhl have the right to recover hi this Province: (;<,l,l.i)iiid w' /fiimi>l.,in, .') ( !. U. N. S. IM; I'.yles on I'.ills, !)th lid. Mi't, \',U\, and Ciuses there citeil. (»f course the Kiiglish Statute of o it ll Will, IV. cap. 41, is not in force in this. Country. That .statute eid.iiges the Common Law Law )ur ea|i. ti, IS noi in iorce in mis i ountry. i nai.siaiuie eiu.iiges iiie i. onimon r right of IniiKt Jide holders of ])roniissory notes for valui; without notice, but om statute does not go so far. I''urtlier, it is submitted that the legislature intended to prevent as much as possible the taking of notes for such considerations, and with that view entirely prohibited the Division C'ourt entertaining suits foi- them. If u notu uhuuiil iu (urm bu givuu fur •* luau uf money, but in reality fur mkm ■li'i;-: .../.■,'■••■>.■■.■■■■ <--^^X-:c ■■■■■' ■;;•':••.:' vr.v':' .■.•.,X>.,;.':-!-;-." ' ' ■ I* ^ ■- . , " ■ ■. ■.' V ' ... ' ■.■'.:'■•.), .' ,•.♦••■ . ■' i" "-i ■•' ) ■ :-'^:^vv ACTIOXf? AFFKOTINO LANDS. [s. 53. 4. Actions of ('.jootinoiit or .actions in whicli tl)o right or titl(! to any corporeal or inc - •{)orcal liereditaments, (t) Olio of the ]troliil)itoil considerations, it would he within this section : /fill v. Fax, 4 11. t^' N. .'{.")!); sou noti's to «uli-si'ction I of tliiK sci'tion. A writing in those words would not Jic a promissory note : "(iood to Mr. I'ahner for $850 on .Icniand :" /'n/„i>r v. McLiniian, 1?2 C. 1'. L'oS. {f) " Hi'Miditanicnt " is ddined in the text Itooks of aiitiioiity to signify "all siieli tilings, wiiftiier I'orpiiiral or ineorpnival, wldrh a man may have to iiini and his licirs, hy way of inheii^anet:, and wiiich, if they he not otheTwise he<pu'atlied, come to iiim which is next of hlood, ;ind not to the executora or administraturs, as diattels do:" see JhxtL Loril v. ('y-iii/it, (> (^. B. p. 'M). In order to oust the jurisdii tion on this ground tlu-re must he /lonn Jiifr a (jucstion of title in dispute. A mere assertion of title is not sullicient: LUIrii v. Ilitrreii, 5 I), it ii. t)4iS ; Enii rji v. Jlnniitf, In re, 4 ( '. !•. N. S. \'1'.\. Nor a suggestion that title cnmis in (picstion: Itdll v. <!riiinl '/'nad- /idi/irni/ ('niii/xniii, Itt ('. I*. 'Jil'i. Till! .ludgi' has juiisdiction to eiKpiiri' and decide Mhetlie'' title really is in dispute, hut his decision is not linal ; anti if he erroneoiisly decides that title to land docs not come in (piestion, he can he |troliil)ited ( 7'/i(i)iii"«>>i v. /ihj/kidi, 14 i}. H. 710) ; hut a Superior Court won't interfere until the Judge has iu(|uiie<l into it: Dixon V. Snarr. (i I'. It. .'{."(i. The claim set up of title to lam! nuist \w t\, hnmi Jiilc one, and the right one that can exist in puintof law: fJui/il v. Jonin, <> ('. I>. SI ; lilnrkniiifc V. Il'tijiis. loC'. I>. N. S. 7!I0. A ])erson sued for rent and douhh; value eaimot oust the juiisdii'tion of the Court liy alleging title in himstdf, if it is proved that he has admitted himself to have heeii tenant to the plaintitl' at the time the rent accrued and from which tlu; holding over emnmenced: Wirhliiini V. L(< , I- (,). 1>. o'Jl. In I'jigland a pli-a of not jiossessed to an :u:tion of tresjiass ijiiiirc claiistnn frai'il takes .a c;ise (Hit, of the jurisdiction of the ( 'ounty Courts {Tinin/lifi v. Fiinmr, 7 C. I». HI4); hut ordy in case a ipiestion of title act UK 1/ n coiiws in iiuestion: l.allnun v. Sjni/ilinii, 17 (,>. 15. 440; hut .sci! ConUou V. O'Cunncll, '2'.) C. I'. ."Ui. .After exeeutnui issued and defendant's goods seized, prohihition would he granted to restrain the Division < 'ourt from pro- ceeding further, if it appeared hy athdavit. though not on the face of tin; pro- ceedings, tliat title to eorpi'real hereilitaments canu^ in (juestion so that the Judge had no jurisiiietion (Mur^ilni v. ]Vi\rill(\ ',\ Iv & !>. (')!).''»); hut not if hy his acts or condin:t he had waived it: In re Dcnhm v. Murshitll, I H. & (!. ()r>-t. Where an action was eoimneiieed for an injury to plaintiff's reversionary intiMcst in lan<i, hy the removal of a houmlarV fence hetwien the lands of plaintitl' and defendant, aiid the defendant cutting down trees, ,^e , and the erection of a new fence in such a m:inner as to make it appe;ir that a portion of the i)lauitiir's liud helonged to the difendant , it w.is In hi that the jurisdiction was ousted on the defendants sin wii\g tiiat the title to land was hithd Jiilc \n dispute, and that he was not houutl ti wan until the Court had pn.eeedcd to hear thi! case: Siinll \. ,/o/(r.s'. 1 I, M. ,V 1'. rvif). A ten.ie.t sued for use and occupation is at liherty to shew that the tith) of tlu' plaintitl (the jiersun of whom he took the ])remises) expired during tin tcnanc; , even tlmugh the tenant con tinned to enjoy oi' o'cujiy the premises foi the whole term w illmut heing suhjeeted til eviction hy the owner ; and if the tenant sets vip sm li a defence, the Court has no longer jurisdiction, as the title to i:,nd comes in rpiestion: Monntnoii v. CoU'n r. I Vt. & B. (VMl Where a party is charged with a li;ihility ari.-ing from his heing owner of land, which ownershi[i he disclaims, this raises a (juestinn of title: /fi'ij. ". J/<ir<li'n, 'J K. & H. 18!). On the tri.al of a case for tn-spaHs com- mitted hy hreaking the doors of cert:iin rooms in a eotta'.'c. the plaintid's e.ase was, that lie had let tu th'- defenilant ,a portitHi only of the .ottage, ami had reaervtid to himself the n.nms in which tlu; trirjipass was eomnnttcd 'i'ln defendant contended tli.it plaiiititt" had let him the whole cottage. It waa h< hi that title to au incorporeal hernditament came in qi»eation : Chao v. Holroyd, 8 .s. r>3.] COSTS IN AnSENOK OF JURISDR'TIOX. 51 ]]\. 240. The jmisdicition is ousted no matter liow fr.auiliilont fir main fuh' tin ■\\\u\\ of eitlicr ]t,iity m.'iy 1) ilic't /v 17 -lur. ■>r).S. Will Ti: a statute irives a special statutory juriKilietion to a hivisiou ( 'ourt. a ((uestion of title to laud would not oust it; Ihrtfur'l Cninii ( iiiiirtiiiiiis V. Kliii/itii II Kx. -JO.".. .1. was found taking san<l from uremises in the oceupation of J{. (under a lease), and was LHven into custody hy li. on a eharLfe of stealinu it. ( >n appearinji ln'fore a .Mau'istiate, .1. denying that Ji. had any right, the charge was dismissed aa involving a ijuetition o f titk A. afterwards sued in I'inglish ( 'oiinty ( 'ourt for false iui|Misonnient ; it was /n/i/ that no (piestion of title arose: hlnrsjiild, v. 4 ('. li. X. 4KS. It is to 1. )served that an action for fals iuijirisoninent in Oivision (/Ourt is imf prohiliited l>y this section. It was lidd that, when on the hearing it ajipears tli.it title to land eomi;s in ([uestion, the .Judge had no j)ower to nonsuit cu' award costs against the iilaintill': In rr Law- I'linlw l*(irtii<lii<\ 1 }f . it N.O'JI. .Mncli to thesauu' eliect in our own < 'oui-ts : se«' l>,„n'<'ii V- iy/''''/i<a>/, 10 V. ('. i;. .''S!»; .V/-Ao//.s- V. /.ii,„/,/, hit'. I'. l(;0;r^;wy>- h'll \'. l),irhl.<oi>, W) V. v.. W. ':il\ //,„/;/sun \. t.nihniiu'H; IJ. ('. I!. IL'T; AV Kingston I'lleetion, .V/<'*(V(rt v. MncltiiHtl'l, ■\\ I'.C. I!., at jiagr '{].'{, //»';■ Harrison, ('. .1. Hut .see Th" (Jrrat Ni>rthi-rn ('i>iiii/iif/ri' v. /ii't/, '2 (). IV |). •JS4. The KiiiL'ston ease was decided on the ])ower to award cost.s wlu'ri; there was no jurisdiction upon the authority of liruirn v. Sfunr, I Mx. 1). 4'_'.'). Tins ease, as /' (•/.• V. Thi^ Oh 4<'. 15. .v. S. '2i\i, was eiteil in th e ease at p.v^ •_'S}of •_' t^. |{. I)., and disregarded. Cockliurn, ('. J., says: The respondent is entitled to avail himself of this ohjeetiiui, ;inil he is oliliged to comi; here to infoi-ui us of the iihsenee of jurisdiction, for if he did not tin; ohjection would not appear, and indgnu'ut would lie given against him. As he is oliligt;d to eoine luu-e hy tile act of the aj)pi Hants, he is entitled to his costs. It is elear that to some extent there is jurisilietioii over the suhjeet mattei', for tlu? Oourt has power to hear and determine whether the ap]>eal will lii' or not. 1 am of o|)inion th;it under tliese eircumstanees there is jurisdiction to give eosts. That heinj^ so, it seems to me to make no ditrerence in the praeticid result, whether tin; respondent comes to inform the Court of the olijeetiiin, hy means of a separate application, as in the jiresent case or at tin' /(mriii;/." It is sidi"::itteil that the ojiinioii expressed in this last ease is the correct one, and will he ultimately adopted, l)iit up to tlie present time the general opinion among ( 'ounty diidgea .■1 that wleuv there is no jurisdiction tlu-re is no power to award eosts, following /// /•' l,i\irii>nl V. /'nrfi i</ii< , \ \\. it N. (>"J1, and th.at class of eases. Should the title to land arise in ..u action of replevin in Division Court, the ('ourt woidd still have jurisdiction: Fiird/iaiii v. Ahr.'<, 4 15. & S. 'uH. So also wouhl there ht! jurisdiction in an interpleader issue: ^fllll■1i)■ v. McKiiilfif, !')(.'. 1'. T)!). In an action hy ;i tenant against his landlord for hreach of covenant for (piiet eiijoynu'iit, when ;/o;) ili'iiiltit is jdeaded, tiie jurisdiction of County ami Division Courts is ousted (I'lir.irr v. Jiraillnini, l.'> L. d. N. S. 40), and plaintitl' oi titl ed to Superuu- ' ourt eos ts: //.. ; />.! v. ViDiilirk'i \•^ \.. d. M. !)•> >n Sli-),l, pill limiH V. /; 'J Iv it M. 744, it was In lil that the oilice of a parish clerk in Kngland w.as an " hereditament " within the meaning of that word ii« ««ed in the County Court Act if !> k 10 Vic. cap. !•"), s. .18, from which this )>art of the section in ((uestion w.as taken. Title to land may conu- in (iiu'stion ami oust the jui'isdiction of the Court in an action of tort to personal chattels; 7 rniiiiir v. //-.//• V. C. H. r.»8. (hie //., sold to defendant timber standing <mi his land, .lU 1 aft«'rwards conveyed and gave possession of the land to the plaintitl' ; /"Id that title to laml did not ciune in question, anil aetimi was iaint;iinaiile in ('ountv Court: Hiulni v. Hliirhn L. .1. N. S. !»!». Th prin- eiple of such eases as this would apply to Division Courts, per Alderson, H. in Ihinn V. M'lilfim. S K\. I,')!). In iin .i.;tion for oiuiverting tin; plaintiH"'.H dwellirig house with doors, windows, ite., the defence w.as that the goods won; not 'lie idaintitl's. At the trial i' apjieared that tlit; jilaintill (daimed as ;tiuiiguec of a mortgage of the land on whieh the house utood, and the di,spu' •w^:;!l.''J^l »;'.,-ile'. ■H,.^ i I ;'«o.v;,A,; j- ■. ..;•,;.>;••■•, iN'.-ji ■ . % ..•,■». •.i.-.i • " ■ ■'■.■■•»•• •'.' ■> ;.?.ivU-,'*-'' ■: -•-.'•■;',■ .-v .':■ . -J •!;(.'•- . »•,•»*.■ , '•.VV.',V' '<*■*..•. m 't .-.,■••■ ;« M ' I 1 ^"-'I'v- V ' ^ 1 ^ £'•■■••.,••' ;'-i;ll b'Z TOLL, CUSTOM, FRANCHISE OK DEVISE. [s. 5.^. or any toll, {i<) custom or fninchiso (v) comes in ques tion ; or 5. Actions in wliicli thn validity of any devise, bequost or limitation (((") luuU'i' iiny will or settlement may be dis puted ; or was, wlu'thcr the liouao was jwrt of tlu' freulioM or not. /fi/il, that <i (itustioii of title to laiiil an>s(,': I'lirtni'in v. /'uttti-fion, '21 [' ('. H. L'.ST ; .see also Fnlr d nl. V. MrCritir, .'{I L' . ('. K. ."I'.C.l. J'liiiiii fiiilr iiiouf, of title to laud arising in the ease lieiiij,' giv(Mi, and no (;ause lieing shewn to tlu; eontrary, would oust tlio jurisdietion: M<tc(trn v. M(irri-<li, II < ', I*. 74. 'Die title of a " eor[toreal hereditanu^nt " is in (luestion whetlicr its existence or the rijiht of the elainiant to it is denied-, y/cr Lord < 'anipliell, ('. .1., in A'liln/ v. T/n Ih'imtii Mtisti r nf t/ir TrhiUii Hoiist', -J'J b. .(. (,». r. .S, s. e. nom. ; /.vl/. v. h'n,f-fl, \' K. & li."'273. Paving rates, assessed under autliurity of an .Aet of Parliament, are not ineor- [»or(!al hei'editanients, and may he sued for in Division Court; /;/ rr /im/i/ilii), 4 lOx. .'(OS. Wiiere tlm jurisdietion would he ousted under tln.s si'etion, a plain- tiff would he entitled to full costs in a Superior (.'mirt: Coiilsuii v. O'Vuniul/, ].'> b. J. N. s. :{i. (a) A toll is delined to he a tax paiil for any lihcrty or jiriviiegt'. It is the t'Uli' to the toll that nnist eome in ({Uestion to oust jurisdietion : /////(/ v. '/'//c (Jirat A urthi ni h'aihnn/ ('iiih/hiiii/, IOC. H. i)04, jur Jervis, C. .). and Williams, J. The charges of a railway eompany for convey.anee of goods is not within this part of the sertion : II). Jn a suit against ji colh'ctor of the trustees of ,h harhour <'oni](any to ret'over Itack a sum paid as a duty im])osed hv Statute on vossi'ls passing within certain limits, the (pustion was rai.sed as to the right of the trustets t.> take a second rate on vessels ri'-passing as wtdl .is p.assing, it was /*(:/(/ that the title to a toll came in (piestion : /i'<;/. v. Knr'ilt, \ Iv & H. 'JT.'V The right to take toll under an Aet of Parliament must cle.arly appear, and any doubt is given in fav(tur of the pid)lic: Slttiirlir'nliii- I'minl (.'niiijKini/ v. IV/nf/t'i/. 2 H. it Ad. 7'.*-. A mere (daini of right to tolls without shewing that it is a /i(/;((( ^j'/'' claim would not oust jurisdit'tion of the Court : I'rj- v. Ilniiijishin.hidicif, li I)owl. 47. Tlu re can he no toll for the nu're ust; of a jiiddic way : lAvrniiri- V. //il'-li, I.. !!. ." i). P>. "I'il. .\ t(dl may vavy from time to time, acconliiig to the valiu! of inoiu'V, and he good : /h. Where toll is authorised to he t.akcn hy Aet of Pailianuiit, tlu; rates need iu)t be uniform uide.ss there is an enactment to that eU'ect : Hiiik/i rforU Market Cuiiijkiiu/ v. Cili/ HtKUiiliont Cuiiijniiii/, '.i E. & H. ;{()">. {v) It is sidunitted that of the \arious meanings attached to tlie word "cu.stom," it here means a right estahlished hv inuncnnorial usage as a custom : Llo;/<l V. Ji»ies, «C. R 81. A claim of custom is triahle luider the English County ( 'ourt A<!t {/hmin v. Wdl/nii, M ]]k. l.'jli); hut the words of our Statute exclude the right to try such in the Division ( 'ourt. " Franchise " is a light reserved to the people by the constitution, or a certain privilege or exemption hestowed hy the (jiovernnient : Worcester. («') It is dillieidt to give a nu-aning to these words. It is .suhmitted, lu)W ever, that jurisdiction is excluded where there is any ilisjinlii/ fluim under a "devise, he(|Uest or linntation," under any will or settlemeut. A claim to a residuary he((ucst would he within this ))art of the section : J'liirx v. lyU/mii, a Kx. H'.V.i. Under this part of tl'.e clause gener.ally, sei- //( irstoii v. I'liilHiis, 1 1 Ex. «<>!» ; JicnnI v. f/iii,; li» W. K. 4.") ; LoiKjImttiim v. Lowilniltoin, 8 Kx. 'Jd.'t ; Rat Wi/p v. Which, 2-1 b. J. Chan. <»I5 ; JS (ihj'hbour \ . Jirowii', 20 b. J. Ch. 070 ; Addi- 8011 uu Torts, '2nd Ed. cap. 23. S. 54.] MAI,MIOt;S PROSECUTION. 53 ing to 111 >>y tlllCIlt '".'/. n Liitaiii liow miilor .aim ti> II Kx. ; /i'ltl AdUi 0. Actions for iiialiciouH prosecution, (x) lil)ol, slander, niuiinjil conversation, seduction or breacli of pronuso of niur- riugo; or 7. Actions against a Justice of tlie Peace for anytliins^ done \>Y liini in the execution of his office, if lie oljcct.s tlieiet(>.(//) ('. S. U. (!. c. 19, s. T) t. !i4. Tht? .Iud''e of every Oivisiou Court may hold i)lea •■'.■i>"^in • _ Wlllrll the of, and niiiv hear and (h'terndne in a suniniary way, for or •'"'nt ims ... 1 ■ \ ' JMllJi'littiOII. against persons, liodies corporate or otherwise : (;;) (:r) '"To ]iiit till' ( 'riiniiiiil L;i\v in turn; iii;ilici(insly, and witliout any loii.soii- alilc <ir |ii'<>li;ililo canst', Ih wronj^'t'iil ; ■•uid if tluMcljy aiinther is j>njnili<'(;<i in |ir(i|H rty <<i' pciviDii there is tli:it (•(injunctimi of injury and los.s wliicli is tlie t()iiiiil.\tii)n of an action:" Aililisctn on Torts. If the ji.irtitulars of ;i cliiiin sIkhiIu sIkw ^'ooit canst! o f acti for false inlI»l'i^^onnlcnt. tli iMv ision ('ourt \vo\il(l not lie restrained, Ih'cuisc tlie .1 iroceeUini's udgi.', Ill ^'iviii^' jniijinieiit, used expressions iiidicatiii;^ that he ^'jivi^ tlainaucs for nialicioiis prosecution i'liiiYi-i V. Siirmji', r> Iv iV 1>. tilt". SlioiiM the jiarliculais he friinuMl so as siih- staiitinlly to shew a case of malicious prosecution the ( 'ourt cannot entertain it : .l„u<s V.' Ciirri'ii, '2 \.. M. it I'. 474. In //««' v. Xnitli Slnfonlsh I nil)/' UlillU mill, 'J H. it N. 4.')!, the particulars were as f ollows ; 'iifi' /KiiUnii/ •r 't;i7 \'2s. (i//.. heiiiu' f< ys pail! for loss of time and attendance b'for.' the niairistratvs, upon a complaint and information of H'. on liehalf of the defendants." The plaintitf had hcen siinimoneil heforo the iiia|.;istrates for ridini; in a railway carriaj^e witliout haviiij; paid his fare, and the summons was dismissed with costs, and the at^tion was iinuiuht to recover tiie < xpeiisus occaKioned l>y such summons. It was /((/7 that the action was, in suhstance, for malicious ]iiosecution, and was Iicyond the jurisdiction. .A count tli;it the defendant caused plaintitl' to lie .-irre^ied and imprisoned Mitlioiit reasonahle or proliahlt> cause, on a false and malicious charge of felony, is a count in trespass for assault and false iniprison- iiieiit, and not a count for malicious prosecution : /innn/f v. l'ruililiirk\ '11 \,. J. K.\. .'<14 (.\iner. rt-print ."{ H. & N. U.kS. ) The dtftmlant's wife ^'ave the jdaintiff into the ch.-iri^e of a cotistiihle on an unfounded cliarj;e of felony. The defeiid- .•iiit attiiided at tile p(dice station, and, after havin;^ lieeii cautioned hy the inspector on duty that he Would not iiiciir the n sponsilulity of di taiiiiiij,' the pl.iintitl' unless the dcfciidaiit distinctly charp'd him with felony and siL'iud the cliar.i^e sheet; the ilefi ndiUit signed the diar^e sheet, ami the plaiiitill' Wiis dct;iiiied, and taken next morning hefore the magistrates, who discharged him. The plaintitf took tint a ]il.iint in a ( 'ounty ( 'ourt for false imprisonment, ac- .•i>mp:uiying it with a notice, wherehy he expressly disclaimed any cause of tiun, in res))ectof tile malicious prosecution. The.ludge, ertoneoiisly treating; e si;rniiig of the charge she( ' as the comnieiic(>nieiit of a in;dicious pnisecutinn th. ruled til it the wliide was one coutiiiuoiis transacti and that the false iin- prisoiiiiieiit eouhl not lie separated from the re.st, and conse(|Uciitly, that he had no jiirisiliction and non-suited the iilaintill'. The Court of ("omiuon I'leas, on apjieal. directed a new trial : Au.i/iii v. Dnirliiuj, L. U. .') ( '. 1'. '),'{4. (//) If a uianistratc should he sued in the |)i\ision ('ourt for an act done in the execution of his othce, and has given notice of his olijection thereto, he c'uinot remove the suit hy n rtiordri into a Superior Court : U'l-^tini v. Smi/i/, | M. «t. N. 7<>."{. At ]>age 70r> Pollock ( '. I>. is reported to have said ; " The notice given juit an end to the ]»roccediii;.'s in the ('uuiity ('ourt, and the plaintitl' was in the same position as if the action had never been brought." iz) "The general jirinciple of law is, that as the law grants redress for all injuries and give.4 a remedy for uvcry kind of right, so it ij open to all kinds of ,'var,:- ■lc^*.•-•,■ 'Vv^'^.•*^«^'' ■; 'Ji v^'.-IJ 'i.vi ■ .■■••1 '■..I' . '• !f' f .'•/.•,• «1-, ' ■•r,'%'VJ -..',.••. ■ '^•'t^:' ■'■•:•■'. ■'■■.•"'If v *■ ■\^. I < ■'*• '■<■>■' .f ♦■•vV?.!-*.' .>/:».'• ■■* . :.,'■' ■Vi-'^'iV-Jl i' 1 H JI'HIHDK'TION. [s. 54. pcrsfpiis, mill TKinc an" cxcluilcd from luiii^'iii^ an .action :" I5;u\ Alir. Action, U. 'I'd this rule tlicro arc cxiiptioiiH. As a Ljciuial rule a person eonvictitl ol tdony uannot Hiie until lie ohtains a pardon or siillcr his punishment : Dieey ou I'artieH to Action, 'J : \Vhiliik<r v. Wishti/, 1'2 (!. li. 44. An outlaw cannot sue so lonj; a8 his outl.iwrv lasts, nor can in alien eneiiiv Hiie Di cev, I'h er»' art! iiilv "two kinds of ( "onimoii Law actions : one for injury to pi^rson or iii(>|iirty, iiiul the other for liieaeh of contract. N<iw tlu^ ordinary case of alueacli of conti'act id wl lere l.oth parties have a;: .'reed to do ;i cert;! thin did one lireaks tho jtntiiiisc which he has made. lUit for a lon^,' time iiiijiliiil rmilrarls have houu jidmittt'd into the law when; a transaction haviiij^ taUeii plaio lietwceii the; parties, (I .-it'itioi thiims has aiiscii in referciu'e to it which was not cunteni plated by tl lem, llllt Ut IS sllcl that le party oiiLiht, in justice an il f.i deal certain sum of nioiiey to tho other: " /mi- .Martin, 15., in Fru nidii v. iii.u', to pay a .A ri, \. H. 4 Ivv. \W. .Vii action oil contract is an action hioiif^'ht for tiic iion]>«'rformancj' or lirciich of any contract or promise, whether expressed or implied, whether made hy deed, simply in writing.', or word of mouth :" l)icey, 8. " An action for tort is an action for a wronj< iiidi pmdeiit of coiitiiict. * * * In other words, a wriiiij,' or a tort is a siolaliim l>y one pei-soii of any of the ri<^hts possessed li\ another [ii'isoii, independently of .uiiy avrit'ciiitnt with tiie wrong- ir a tort, is an a<'tion on account of the violation <loer ; and an action for a ' of or iiitci fcreiice with such riulitj^ I) IceV, '.». 'i"wo thi!.i;:s mii.-.t concur for the iii;iiiit.'iiaiice of an action for tort, a ri^'lit independently of any airrcemenl with the defendant, and a violation or interference with such rij^lit : //». 'I'lus chief diirereiu:cs hetwceu tho two forms of action are these ; .No one can sue or he sued for the hreach of a contract who is a wtrangur he contract, or, as it is sometimes exintssed, is not privy to the contract. to tl le contract, or, as it is sometimes ex|Htssed, is not privy * * * .\iiy person, on the other hand, who is injured hy ii wron'jful .act, may bring an action for tort against the w roiiLjdoer, even tlicuigli the injury ht- an indirect oiii' ; as wherc! a iiiiuster is injured in eoiise(|Uenee of an injury done to his servant: " Uicey, l((. In an action on contract, all the jhms.iiis with whmii the contract is (in the oyo of the law) made, shoidil join as phtintitls, sijice A. 4!annot recover damaL'cs for the hreach of a contract m.ide with .1. and />. In an iiotioii of tort a plaintill' may suc! any or all of the w rongdoers. .Ml persons jointly liahle on contracts must he .-iied together (except as is provided for hy section 77): l>ieey, il. In an action of tort no ohjection can he made to the nonjoinder of a joint wronuihu'r a.s defendant, hut in !tctioiiH of contract tin- non-joinder of a co-contractor is fatiil (Dioi'y, I-) unless aiuended, if thia in aniendahlc, sec llnlo No. I(>r», (f xnf. At ( 'omnioii l,aw a woman could not 1k' sued on contracts minU' hy her during ooveriiire >ut a niarriei 1 W'Ol nan an< 1 infant s were in geiienvl rcsjMHi! ihle f or their torts : i>iicy, I "2 and l.'{. In this Province a married Woman can rendei- herself liahle so as to nti'ect her sepanite property hy a contract made with refereiioo to her separate estate, and when she ilocs iUisiiinu to contract, it is pn-i^iiiiiii/ tliiit she does so with refereiu'e t<i Inn" separate ]»roperty ; and at tin; trial it must he shewn that at tht,' time of the traii.s.ii'tion slit? had S( [wirate property, or that she trailed separately from her luishand : llynini (t ill. v. Wlnniwj.-i-.i V. ('. II. .Sl'7 ; H't.//. ./'://'■ •MV. (■ Ik. .1.1 if ol. Stri/i/) (t III. 40 U. ('. I!. fj.">; Krrr v. St, !/>/>. 24 <iraiit I'.fS ; Jhini.son v. Doiiiflti-is, 40 II. (!. \l. 410 ; Miith'in v. Snnistn,, <l <il. L\S t ;. 1'. ;{.'),") ; Friir.if tf at. V. MrFnrland, Hat. 43 U. C R. '-'81 ; Ihirliiiif \. Jiitr, I App. I!ep. 4;i ; .S7(Im- (lanl lliink- v. lianllon, 3 Ajip. itep. O.S ; Ldir.sitii v. Ld'nUmv, 3 App. Ue)). 7" : ih-uhnin V. liicii-slir, 28 ( !. I'. (107. If the luishand li.id an interest in the land as tenant hy courtesy, at the time of the alh gc'd contract, the wife cannot he reinlered liahle: Ilrdini it til. v. Wnnninj, W\ V. ('. \{. at puge ,S!VJ, .'iinl cases thert! cited. The married woman must luive iiii interest in the property at ffit t'liiic the (contract was made jau'itiiu V. LnUlliiw, ,S A VV J! ■P' <.)1. All infant is liable for hia torts : liurnard v. JJaijijis, 14 0. B. N. Sj 45, Ad tlic juriadii;- K. 54.] JUIUSDICTION. Moil of the Diviuioii C'/onrtH varitiH in <Miiitr!u:l mikI tort an to .iinouiit, it is iic- cosHftry to kcoji ohiirly in viow tho (li.stiimuisliiii;^ clianutfristicH of tlu: two actions. Jt iu laid down, "tiiiit if a «M)ntriu't inipoHt-s .i Ic^'al duty upon a |K'i'son (lie uinh'it of tliiit duty iH A tort foumlfd on <;oiitriii't, hh that an action i.r-nm- trivlii foe till! hri'jK'h of oiuitract. oi' an a«:tion ix ili/idn for the lirrufli of duty, may !*•' l>ron;;ht at tlu: option of the plaintill : " Adilison on Torts, ,'{rd lid. I.'{. An at'tioii aj,;ain-st a coninion ivarriir on thi; ('nstoui of the realm has cvci' isince {I'lr.zi V. ,Sliljitoii, H A. it K. Uti.'l), until latidy hcen lon.-idcrcd Mtriitly in tort; jtfi' also JidiiiiiKiii V. Jiroirti, H y. |{. ,'t|(». Tlic case of Jinj/lis v. lAntntl, L. K. H, <'. I*. .'{•"», was founded on a cause of action aj^iinst a hackney carriage pro- tirictftr f<H' not wecurcly carrying' certain in^'yajie lielonj^ini,' to a person « ho had lircd liiH carriage. The declaration alleged that in c<in.siih'i ation t iiat the plaintitF Hciild, with hej- luggiige, licconie a passenger in such carriage, .and of certain I'cw.'trd to lie paid hy liie jilaintdl to the defend.int in that liehalf, the dt fend.ant pniuiini'd to carry the plaintill' and hei luggage tafely ; and that the defend.int, not regarding his duty as lnu:kncy carriage: piviprietor, nor iiis said pi'onii.s<:, did not -safely carry the plaintill's luggage, hut so carelessly and ni'gligcntly <(iiiducted himself that |»art of the luggage w.is lost. Ihlil, that the a'tion \sas fdundeil <»n contract. Tlu' tendency of the < Courts is to hold that damages re- Midtiiig frmu a hreach of duty, under contract, are the sulijccl of an action <x oii/rnrlii : fiir |{(»vill, ( '. .1., at p. .'U.S of I,. It. Sd. 1*. ; see also /.'.'/.'/' v. Tmhi r. J II. it N. nOO; Tulloii v. (hnit \V, st< C •2 K. & !•;. Si4 ; J/o,;/« Jiiiitij, (> II. & N. -(».'• ; Ihillen «t Leake, ,'hd Md., llil ; hut sou J'lui/i/ix v. M'lilhiml liij. Cii., :i (). r.. I). '2:\. Mr. Dicey in his valuahle l.ook, at page '_'(», Kays In s|(ite (if ciMilJieting decisions the doctrine laid ilown liy Sir .1. .\l ans- ticlil, ( '. .).. is, it is siilnnitted, in theory correct. Actions iin tort fniiiided on «'iuiir,tct, though in form actions for tiu't are. in yi it/i/i/ actions for hieach of iciiitiact ; they owe theil' exi.stelice to the fact that fol' technical re.-isolis (some of iviiich still exist) declarations are often framed in tort where the real cause of action waa the hreiich of a contract." Hy suing in tort, the plaintill avoids the <lefciice of .set-oil' ( I iC.ake on ( 'ontracts, 4.S) ; hut he cannot hy so doing all'ei't the Kiihstautial lighLs of the parties : Altmi v. Miillitml /'ui/inn/ Co., I !) ( '. !'.. .N. S. -M:{ : Mn,\-<li<ill V. )'((/•/•, Amriistlr ,i„il II, ./• / ' .'/ lie. 1!. ( ).).! M<irti V. (,'i-ritt hti/tJin It'll Co, L. It. .'{ \'.\. !>. Although there .are \ut jOnns of acticin in Oivi.sion ( 'oiirts, yet, with a view to understand the rules as to parties, it i.s Well to iie.ar in mind the distinction hetween dillureut forms. 'J'he nature of the dill'i'rent forms of action.s are these : C'jn'iiiiiit lies where a pai'ty claini.s daiu.ages for a hreacli of covenant, /. c, of a promise nmler sea A.isuiu/*si/. lies where a party claims damages for a hreaeh of siuqile e 'Oil- tract, /', c, a pr(Uiiis<: not under seal. y'/v.¥y««.v.s licH where a j>arty claims damages for a trespass committed hikmi liini, i. ,'., for an injury of a dircrt iiwl iuuii'dinh /^-///i/ i:omniitted on the peri 'on. >r t.ingihie anil cm-pori'al property of the jilaintill Citu,, or 'J'rrs/Ki.s.i OH (In' cii.sr, lies where a p.irty claims il.iuiages for any wvong not included under the head of trespass. ^Wii' includes under it the {jrcatur immher of torts, ' ;/., torts arising fnuii ncgligenc<'. fraud, ite. .As distinguished from trespa.«s, it lie.s for .an indirei't as contrasted with a direct and immediate injury ; hut tin: distinction lictweeii the one form and the other is in many cases very tine, aiul there are instances wherein hoth or either trcspiiss or lase will lie. Tiorcr lies where the plaintill" sues for dainagcH for the interference with his right to the possessjim of spccilic goods and chattels. .Such interference in technically caihd " ( 'oiiver.'^ion." I)ilhiiii lies where the plaintill' claims to recover sjn'cilic goods or chatlels wrongfully detaincil by the ilefendaut. This action dilleis in practice little from I, ", '/ I") 'l¥>i/i7S~i ■V'Vv-'v.'.>i;fili k •• ■V^'t'-'*^? fil >.;■•; V'-'-'i^.^ >^^'^.:^ .'.•L .'';,'vtv.:r»!' ,.1 : ■•• ^ ■ ■^; ■;■■' . ■■:■■',"• '■■"■•'■•'. 'II ■ ."■■:■?■!. , • ■-♦■/ ■:'■:'■'.' U I '. ■ • v.*'-.-, . '\i,.y i\^: ■;.*.,,' 'I -»•■■»■)■■ '■ii"'-'"T-*S'' ;' ■ v'.'.v ■■. ,';■ ■ ;,.'fi;-§^f|;.-' 4.'.j v';'M.;v:Aj;;^- .1 '■■T--': ,v.. 1 I «^*;,■^'■ !'<.::''''--1 ... \ ^ ..,.,^-fi-.jl.,, *tl ■ . . '■'2 A, •m-' IMAGE EVALUATION TEST TARGET (MT-S) 1.0 If i- IM 12.2 I.I •a 1^ 1.8 1.25 1.4 1.6 ■• 6" ► V] <^ /a /j '/ /A Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (7;6) 872-4503 % o 4lo i/.x k ill" '« 5C) JURISDICTION. [s. 54. 'til I'l .. ■■' ill ' I; 'I ,-k- Trover. The chief differences are, that a plaintiff can in an action for detinue obtain the return of the goods, and tliat the gist of detinue is the wrongful detainer of the goods and of trover, the wrongful dealing with them : l-)icey, pages 24 and 25. Ji('l)lei-h) lii's under our statute where, under the laM' of England, on the 5th December, 1859, it could be maintained for a wrongful distress, and also in cases where tresi)as3 to gofxls or trover could be maintained for a wrongful taking or detention : l!ev. Stat. cap. 53, s. 2. The following general rules are appliciible to all actions : 1. That no action can be sustained where there is no infringement of a right. 2. That mere damage will not support an action : Dicey, 28. The rule applies to actions of contract ; Ih. Si). "Where one person has a legal and another an equitable interest in the same property, any action in respect of such property must be brought by the person who has the legal interest :" Dicey, 4.3. As the Administration of Justice Act has been hctd not to apply to Divisi(m Courts in certain cases : ( WiU'mff ■< . EUioU, R. & J.'s Digest, 11()()) ; it is su])mitted Miat this rule must, when such rights exist, apply to sucli Courts: Cast ill! v. J^oddinijfon, 1 E. & B. ()6, 87!>. As a rule in all actions for breaches of contract, if maintainable, some dam.ages are presumed (IJicey, 52; Maj'ne on Damn i, i Ed. p. 4) ; but not when (lamage is the L^ssence of the action : Pages 5, 31; , 40'.), 413, 416, and 478. Aliens have the right to sue in our Courts on contracts mai'e or torts committed beyond the limits of the Trovince (Dicey, 55) ; but the ' ■ .egulating such contracts must be that of the country where coiitra(^t made, . r ' e procedure must be according to "our law : Ih. 5(5. In cases of tort there r. is. -e a cause of action according to the law of both countnc.'^ : The J/al/eu 2 P. C. 193. "A person who :,., 'th- is wronged by another cannot, if the wrong amoiiits to a felony, bring an action against the wrongdoer until lie has prosecuted him for felony :" Dicey, (>4 ; Ashhy v. WJnte, 1 Smith's L. C. (ith Ed. 207 ; Welhvkv. Vomtcuithie, 2 H. & C. 146. Th« rule does not [irevent actions against others than the felon himself. Thus, if X. steals goods from A. and sells them to V. who buys them without knowing they were stolen, A. may bring an acti<m of trover against Y. although he has not prosecuted X. : White v. SpcUhjue, 1." M. & W. 603 ; Well.'i v. Ahrahani.% h. K. 7 Q. B. 554 ; O'ihorn v. GiUett, L. II. 8 Ex. 88. In an action against the thief, it appears he must ])lead tiie felony in order to raise such a defence ; if not pleaded, the Judge is bound to try the case on the issues raised : Wells v. AhrahatnK, L. K. / (»). B. 554. Another rule is, "that tlie same person cannot lie both plaintiff and defendant :" Dicey, ^j^^. This rule has the further application that where two or more persons must join as jdaintiffs in an action, they cannot bring any action in which it would be necessary to make one of them defendant : Ih. At Common Law the right to bring an action could not be transferred or assigned • Dicey, 66. Choses in aciioii are .assignalde in this Province by virtue of 4ev. Stat. cap. 116, s. 6, et se(/. A chose in action has been described as "a right to be asserted or pro- perty reducible into possession either by action at law or suit in equity," and this definition has been approved of in Fleet v. Perrins, L. K. 4 Q. B. 500, 505; see also L. K. 3 Q. B. 536. Under our statute the action ?rt».s'< be brought in the name of the assignee ( Wellihiiton v. Chard, 22 C. P. 518), and the defendant can plead the plfiintiff's assigninent to another : Ih. It is sufficient to allege that the chose in action ' ' was duly assigned in the manner required by the Act : " Cou.sin.'i V. liullen, 6 P. R. 71. The assignment must be absolute : Ilmlraw.fer et III. V. Rohih.'ion, 23 C. P. 350. A person can, under our statute, assign to his partner and himself a debt due to him individually : Blair et al. v. Ellis, 34 U. C. R. 466. The Act applies to assignments mr.de before as well as since its ^)as8ing : Wallace v. (lilchriM, 24 C. P. 40. An assignment cannot be made for the mere purpose of enabling the assignts to sue in his own name : Wood v. McAlpine, 1 App. Rep. 234. As to pleading assignment, see O'Connor v. 54.] JURISDICTION. McName.e, 28 C. P. 141 ; see notes to sec. 68. Tlio purchaser of a debt from an assignee in insolvency can sue for it in his own name : Insolvent Act of I87t'J, a. 6!). >So Jilso, it is submitted, munt the action he brought by the assiynee after attachment or assignment in insolvency for the recovery of debts due the estate : Soiii'f V. Diifaiir, 11 Q. B. 82") ; Morgan v. Kni</ht, If) ('. \i. N. S. (Uiil ; Kitaon y.'/fitnliricl; L. H. 7 0. P. 473, 477; O'Connor v. McNamce, 28 (J. P. 141. Under either the Insolvent Act or the Eev. Stat., it is submitted that the assiguee would taiie, subject to all equities between the original parties : Gouhl v. 67')i7', 21 (rrant, 273. Another rule is that "no person can })e sued who i .i not infringed upon the right in respect of wliich the action is brouglit :" Dice} 73. Of course the right of action for damages in tort cannot be assigned : IMcej, 76. "No one can sue for breach of a contract who is not a party to thi contract, or who does not derive rights from an original party to the contract :" Dicey, 78. For instance, X enters into a contract with A, ami his non-[)erformance of it indirectly injures M. il/ cannot, but A can, sue A' : T)icej% 7!) ; Alton v. Mid- land Railway Compani/, 19 C. M. N. S. 219. "The person to sue for the breach of a simple contract must l)e the person from whoTn the consiileration for the promise moves :" Dicey, 81 ; Smart v. Clwll, 7 Dowling, 785. In suing a public carrier for loss of goods, he at whose risk the goods are carried should bring the action. This is ordinarily the consignee, but may be the consignor : see Dicey, page 87, ct tiPq. " The person to sue for the breach of a contract by deed, is the person with whom the contract is expres.sed by the <leed to be m.ade, i.e., tlie covenantee or ills representative" (Dicey, 101) ; even though he <lid not execute h : Pitman v. Woodhnnj, 3 Ex. 4 ; Hoiu v. (IroA; 3 H. & (J. 3!>1 ; Tohr v. Hlatn\ L. H. 3 (,>. B. 42. " No one can sue on a covenant in <an indenture, wlio is not mentioned among the parties to the indenture :" Dicey, 103. It is enough, however, if tlie chis3 to whicli he belongs is sufficiently designated among the parties : ftianciv. llrcmi, \t. 1». 2 Ex. 352 ; McLaren v. Baxter, L. R. 2 0. P. 55!) ; Sunderlan<l /n.'iiiravrp Compan// V. Kcarnei/, 16 Q. B. 025. " All the persons witli whom a contract is made nmst join in an action for the breach of it :" Dicey, 104. One of two co-plaintiffs lias the right to bring an action in the name of both ; nor has the Court any ]«)wer to interfere, unless the co-plaintiff's name be used not only against his will ]>ut fraudulently: Enwrii \. Mnvklon\ 10 Bing. 23. He may apply to the C(mrt to have the proceedings stayeil until he gets security for costs : Law.i v. liott, IG M. Si W. 300. He is not always entitled to such security : Emerij v. Mnrklov, 10 Bing 23. He may release or settle the action : Crook v. Stephen-'i, 5 Bing. N. 0. 688 ; Jo/in--<on v. liold-vmrth, 4 Dowl. 63 ; Herbert v. Pi;i',/off, 2 C. & M. 384. Anj' one of several jdaintifl's can give a release which is good ami can be pleaded, unless it is fraudulent : Baic-'itorne v. (landell, 15 M. & W. 304. If release fraudulent it will be set aside (Jone.^^ v. Herbert, 7 Taunt. 421) ; but a strong case must be made out : lb ; see further, DePothonicr v. DeMatto,'*, E. B. &E. 461. "One and the same contract, whether it be a simple contract or a contract hy deed, camiot be so framed as to give the pron»isees or covenantees the right to sue upon it both jointly and separatelj' :" Dicey, 111. and cises there cited. Covenantors may make themselves by the same covenant jointlij k.s' well ax ftereraUji lia/de, but they cannot ))y the same covenant give the covenantees join< as well as several rights of action : Bradhnrne v. Bottield, 14 M. & W. at ])ago 573. As to the rule for interpreting whether covenant joint or joint and several : see Dicey, 113, (/.sYf/. As covenants which run with the land may be the subject of Division Court jurisdiction, we refer to Dicey on Parties to Action, page 127, note (./'), which contains vei"y full mention of them. " The right of action on a coiuract made with several persons joii\tly pasaea on the death of each to the survivors ; and on the deatii of the last to his repre- sentatives :" Dicey, 128. •'••V'. '?',%':^r,.; *'':■ ■ ■'v.*-v.VV<r '■'.♦■; ♦.•'! ■■■V-i*i-'">.'.r','J* '-', . ■ - A' ■>..>• > >■-.».■' ■ ■- . i .*■ .-■i,'/t.':f.y.5*r<>nil *#% iV ' <ii| •JiW,;, ■^,Ml, '■■■•'; li^ I ■'■'^^, m* ■ „ ' •HI I t (i^it'^ii; llfllil^'V^i'i •'r ■«■.. V : ' ;;!ll!!i 68 JURISDICTION. [S. 54. "A contract entered into with a principal, through an agent, is in law made with the princi2)al ; and the principal, not the agent, is the proper person to sue for the breach ot" it:" Dicey, KiO. Or he may sue on a contract made in his name without authority, if afterwards I'atified, even after action : Bird v Brown, 4Kx. 780; Anconav. Marks, 7 H. &. N. 680; Vuates v. Kcltii, el ul. 127 U. (J. H. 28i ; B/tdc v. U'uM, ct id. '2911. (J. 11., p. 545 ; Runs v. Tii^on, 19 0. I'. 29-t ; Wi'Mloh V. Brown, 43 U. C. 11. 402 ; WaLwnv. Swann, 11 C. 15. N. S., 709 ; and the contract nuist be made on ])eluilf of a person cajjable of being ascer- tained at tlie time it was made, and cannot, therefore, be ratified by a person not tlieu in existence : Watwnx. Swann, 11 C. B. N. S. at page 771, jn'r W'illes, J. ; and Kdncr v. Baxttr, L. 11. 2 C. P. 174 ; Scott v. Ehwrn, L. 11. 2 C. P. 255; and esiiecially Sj/i/lcr v. Paris SL-atimj Rink Conipani/, 7 Oh. D. 308, and cases cited. It caimot be ratiliod in part : Dicey l.'!3. >«or can an agent sue on a contract made by liim as sucli, except in tlie following cases, in the first three of which he nia-st sue in his own name : (1), where an agent is contracted with by deed in his own name ; (2), where tlie agent is named as a party to a bill of exchange, &c. ; and (3), where the right to sue upon a contr.n.ct is by the terms or circumstances of it expressly restricted to the agent : Dicey, 134, 135. lu ihe following cases either principal or agent may sue : (1), wlierethe contract is made witli tlie agent hinjself, c. ,'/., where the agent is treated as the actual party witli wliom tlie contract is made ; (2), wliere the agent is the only known or ostensible principal, or where the agent has made a contract, not under seal, is his own name, for an undisclosed principal ; (3), where an agent has made a contract in the subject-matter of which he has a special interest or property ; and (4), where the agent has paid away money of the principals under circum- stances which give a riglit to recover it back ; Dicey, 134 to 140. A person who enters into ciuitract in rcalit// for liimself, but apparently as agent of an- otlier, whom he does not name, can sue on the contract as principal : Schmaltz V. A eery, 10 Q. D,, 055 ; but a jiersoii who contracts in reality for liimself, but ••ipparently Jis agent for another, wliose name he gives, cannot sue on the con- tract as princi[)al : Dicey, 144. A linn or unincorpoiated company cannot sue in its name as a lirm or as a c iiiiaiiy, but must sue in the names of the indi- vidual members r)f tlie lirm . i comjiany : Dicey, 148. Clerks should not in sucii cases issue the summt)ns without having the names of all the members cf the partuership lirst inserted. All who were partners or members of a com- pany at the time wlien contract made must join in the action for breach of it: Dicey, 181. A dormant partner may, but need not be joined : Dicey, 151. A partner should not be joined in suing on contract made before he joined the firm : Dicey, 152, A partner would have to sue alone on contracts made with him on be- half of the firm, in the same cases in which an agent would have to sue in his name on contracts made by him on behalf of bis principal : Dicey, 154. A corpora- tion must sue in its corporate name (Dicey, 103) ; but cannot sue on contracts ultra vir"n : Taijlor v. Chirhcfilcr Raihcay C'onipani/, L. It. 2 Ex., page 379 ; judg- ment of Blackburn, J. same ease, L. 11. 4 H. L. 028. (Jo-executors or co-adminis- trators must all join as plaintiffs : Dicey, 219. An executor renouncing should not be joined : page 220, llev. Htat. caj). 40, s. 59 Allen v. Parke, 17 0. P. 105. On the death of a co-executor or eo-administrator, his rights of action pass to the survivors, and ultimately to the last survivor: Dicey, 221. The executor of a sole or of a sole surviving executor represents the original testator ; but the administrator of an executor, or the administrator of an administrator does not ; Dicey, 221. No person can be sued for a tneaeh of contract who is not a party to tlie contract : Dicey, 223. The person to be sued is the person who promises or allows credit to be given to him : Dicey, 225. The exceptions to the rules that joint contractors must all be sued are : where a co-contractor has become bnikrupt, or where a claim is barreil against one or more joint debtors and not against others ; wliere co-contractor is resident out of the jurisdiction, (or in cases uieutioued in section 77) ; where an action is brought against a lirm, 3. 54.] JURISDICTION. 59 some of Avhich are nominal or dormant partners ; or where a co-ooiitractor is an infant or married woman : Dicey, 2.'J0, '233. An agent wlio, without having authority, enters into a contract on beha?*^ of a principal, cannot hiiuself he sued on the coittnivl, hut is liable otherwise (see (loilwin v. Fi<ui<ts, \j. il. ;"> (J. P. L'iK"), and cases cited) except where his authority has expired, as for instance hy deatli, without his knowledge : Dicey, 264. An infant cannot he sued on any contract made by him, except for '• necessaries." This word is one of relative meaning: everything must depend ou the infant's positior. and station in life. For cases on this point, see Dicey, 286 ; Itoscoe's N. 1'. 13th Ed. (KSo ; Huh. & Jos. Digest, 1722. It is doubtful if those can be necessaries with whicii an infant is already supplied : Jiijdcr v. IVumbwt'/l, L. II. 4 Kx. 42 ; see Ari/iiha/il v. Flipin, 32 U. ( '. U. 023 ; Eastland v. Burchell, 3 Q. K. D. 432. A father is as such under no legal liability to pay for necessaries supplied to his chihl. " In point of law, a fatlier \\lio gives no authority and enters into no contract, is no more liable for goods supplied to his son than a brotlier or an uncle, or a mere stranger would he. From the moral obligation a parent is under to provide for his children a jury are, not unnaturally, disposed to infer against him a liability in respect of claims upon his son on grounds which warrant no such inference in law :" iwr Ahinger, (J. B., in Murthiiurc. v. Wrhjht, 6 M. & W. 486. To ler.d r the father liable he must have contracted to be bound just the .same as a stranger : Leake on Contracts, 27, 28 ; liazelcij v. Furdcr, L. 11. 3 Q. B., ')'>[). An adult cannot he sued on contracts made by him during infancy [not necessaries | unless ratified in writing after he attains 21 years of ago ; and no fresh consideration is re- <[uired : Wiltiainsv. Moor, 1 1 M. & W. 256 ; Rome v. Ilopwood, L. U. 4 Q. H. 1. If one of several co-contractors is an infant and the others are adults, the latter alone must be sued : Dicey, 294. An executor or a<lministrator nuist bo sued in his rejjresentative character on all contracts made by deceased ; but in his ])ursonal character on contracts made by himself : Dicey, 317, 318. All co-exe- cutors or co-administrators, who have administered, shtmld be j(jined as defend- ants in an action : Dicey, 322. An executor de nun tort nuiy be sued jointly with a lawful executor,or they may each be sued separately ; bub an adminis- trator cannot be sued jiuntly with an executor (Zc kuii tort : Dicey, 32.'i. 'i'rover canut)t be maintained unless the phiintifl' has the right to iiuiui-iiuife possession (Bradleji v. Cojileij, 1 C. B. 685) ; but he may bring an otion for damage done tf) a reversionary interest : Dicey, 367. Persons who have a sei)arate interest, and sustain a joint damage, may sue either jointly or separately, and persons who have a joint interest must sue jointly for an injury to it : J )ice}', 380. The right of action for a tort cannot be transferred or assigned : Dicey, 3S2. A master cannot sue for mere injury to the servant, nor a servant for mere injui-y to the nuister : Dicey, 383. Partners must sue jointly for wrong to the lirm, and all should join who were partners wiien wrong eonnnitted : Dicey, 384, 385. For debtn due to an insolvent before insolvency, we have shewn that the right of action is vested in the assignee ; hut for injuries to his personal feelings, or reputation, the insolvent himself must sue .• Ilomml v. t'roirther, 8 M. & W. 604, per Ahinger, (J. B. ; W/iite v. Elliott, et al. 30 IJ. C. 11. 253. An action for a personal wrong dies with the person : Broom's Legal Maxims, 4th Ed. 876 ; Cameron v. Milloij, 22 (J. P. 331. The personal representatives of deceased can sue for injuries to his personal pro2)erty, committed after his death : Dicey, 406. An owner is liable for damages done by an animal known to be dangerous : Ajiplebee v. Pernj, L. 11 !) C P. 647, and cases tlu re cited ; also lloscoe's N. P. 739, 740. Knowledge is essential [Cox v. liur'irhlije 13, 0. B. N. S. 430) ; and by the servant is knowledge of the master (Jialdirin v. Casella, L, R. 7 Ex. 325) ; and slight evidence of knowlege is suUicient : Applehee v. Percy, supra. One, or any, or all of several joint wrongdoers may he sued, and there is no right of contribution between them : Jiferri/iceafher v. Xixan, 2 Smith's L. C. 6th Ed. 481. It several are sued jointly in tort it is t^aeutial that the wrong complained of be joint : Dicey, 431 ; Cornyton v. . r • U . «■); v.- vV* I' ■ "•■'''' '-R-ia^ I ■ n 60 JUKISDICTIOJT. [s, 54. <iU^lu y l'_A.ll personal actions (a) where the amount claimeil does not exceed -festyldollars ; and ,.. '. ■■« fin !iii' r •('! ■■»• Lithchij, 2 Wins. Saund. 117, c. note (ij). Every person who interferes with the liberty of anotlier is prima facie a trespasser, and must justify his act : lirookn V. ll»<l(jkiax(jH, 4 H. & N. 712, and cases cited. A master is liable for a wrongful act committed by a servant in the usual course of his employ- ment, though there be no express command to do the act : Smitli's Master and Servant, 2d VA. 208 : Hirlri' v. Francis, ',i App. Oas. 10(5 ; IJrh v. (ircat \Vei^t(n-7i Itailwdji ( 'iniipaiiji, 3 App. Rep. A person ratifying a tort is liable as a wrong- doer from the beginning: Bird v. Bruxcn, 4 Kx. 78(1; Ullhcrii v. Hiillon, 2 H. & C. 822, and cases cited. .See also on the same point, Crouttlmw v. (iiap- man, 7 H. «& N. 911 ; Kcnncdii v. PattcrwH, ct id. 22 U. C. H. Sfit) : Slanfd v. IVe-it ft ai, 25 U. C. R. 3!H. An employer of a contractor is not liable for con- tractor's servants : Rccdle v. L. & i\'. W. Bailvmij Company, 4 I'^x. 244 ; but see Jvlttistiin v. llnatic, 30 U. C. R. 232 : Graham v. Toronto, Orcij & Bruce Railwai/ C'oin/xnii/, 23 C. V. r)41. The contractee is liable when he personally interferes witli the contractor's workmen ( Bunjess v. Gray, 1 C. B. 578) ; or when the act contracted to be done is in itself unlawful : Pcachey v. Roidand, 13 C. B. 182 ; anil ElIU v. Sheffield Gas Company, 2 E. & B. 707. A master is not liable for a mistake, in law, of a servant in doing that which by law he had no right to do : Poidfon v. London and South Western Ralhcay Company, h. II. 2 (.},. B. 534. A servant or other agent is liable to the person wronged for acts of misfeasance or positive wrong in the conrse of his employment {Swire v. Francis, 3 App. Cas. 10(5) ; but not for acts of nonfeasance or mere omission : Story on Agency, ss. 308, 312. One or any, or all of the partners in a firm may be sued jointly for a wrong committed by the firm : Dicey, 468. A cor- poration can be sued for torts ; Llmpus v. London General Omnllnis Company. I H. & ('. 52(5; and for fraud: Western Bank of Scotland \. A<ldle, L. R. 1 Scotch A])p. 107. An infant may be sue<l for torts committed by him, bnt not for torts founded on contract: Dicey, 474 and 475. An action will not lie against an infant for representing himself of full age, and thereby getting credit : Price V. llewctt, 8 Ex. 14(5 ; IAr"r})<)ol Adelphl Loan Association v. Fairlinr.'^t, 9 Ex. 422 ; Bartlett v. Wells, 1 B. & S. 836. A discharge in insolvency would be no bar to an action of tort : Parker v. Crole, 5 Bing. 63. See also Rob. & Jos. Digest, 38 et seq. Further, as to parties to actions ex delicto ; see Addison on Torts, cap. 20 ; Rob. & ,Jos. Digest, 38, 1102. (a) This means actions for tort as contradistinguished to the class of actions enumerated in the next sub-section. In the cases under sub-section 1, the jurisdiction is limited to §40 ; under this, to $100. We will give an epitome of the dii'Ferent kinds of action usually brought in Division Courts under this sub- section with one or two leading leferences under each head. A penalty under statute of not more than .$40 is recovei'able in Division Court, mdess the statute declares, or it can be inferred that it shall only be recoverable in some other Court: Li re Apothecaries Co. v. Burt, 5 Ex. 3(53. The onus is on the plain- tiff of shewing all necessary facts to bring such a ease within the statute: Mason qui tarn v. Mossop, 29 U. (J. R. 5i)0. And generally the action must be brought within a year : lb., and Dyer v. Best, L. R. 1 Ex. 152. A person who keeps a dog or other animal accustomed to bite mankind, with knowledge of its dangerous propensities, is liable for damage dime by such animal ; and very slight evidence is necessary now to establish such knowledge on the part of the owner: Appleliee v. Percy, L. R. 9 P. 647. As soon as the owner knows of the animal's propensity lie should destroy it or send it away (McKone v. Wood, o C. & P. 2) ; and notice of the propensity of the animal will not be a protectiim unless the person injured saw it : Sarch v. Blackburn, 4 C. & P. 300. Our statute has made the owner of a dog liable for killing or injuring sheep whether he knew of the dog's propensity or not: Rev. Stat. cap. 194, s. 16. The s. 54.] JURISDICTION. Gl remedy, if sought under that statute, must be before a Justice of the Peace (s. ]'2), it being the prescribed forum' JIolILt v. Marshall, 2 H. & N. ITnt; Jicg. V. liri'ilhiirnt, S2 L, J. M. C. 1(58. A jjersun who harbour.'* a d;ingorous animal is hable: Achlison on Torts, 2nd Ed. ISS, 177; Mail \. Bnnbtt, S) (). li. 110. A promise afterwards to make coni[»eiisati()n is only s'ight evidenee against a defendant: Addison, 178, 17!); 'J'hoiiuw v. Morfian, 2 C. M. & U. 002. A tenant's trade or domestic fixtures are removal)le without giving a cau.se of action: Addisfm, 202, el .sc*/. A person who ])ut.s out lire on his ov. n premises, that may spread and injure the property of his neiglibour, is bound to exercise due, but not extraordinary caution: Buchan<tn v. Yohii<i it al., 2,'} ('. 1'. 101; see also Cof/Z/VftH V. CHii of Ottawa , I App. Rep. at page (iO; (Jlarkx. Chdnihtm, 3 Q B. U. 827. One who collects water or anything else of a dangerous nature on his land, in a maimer inconsistent with its natural course or state, is liable for damages should it escai)e : Flrtrher v. Rijlaudii, L. W. 3 H. L. 330; Hniiiphrii'if v. Cotains, 2 0. P. D. 239, and cases there cited. Every entry upon land in the possess' n or occupation of another constitutes a trespass, and is actionable unless \he act can Ijc justitie<l: Addison cm Torts, 220, cap. 6, sec. 1. Au entry under landlord's distress warrant by breaking through a window, or in any other such way, is a trespass ah initio: Attarlc v. Brain well, 3 13. & S. 520. As to trespasses by cattle and domestic animals, see Addison on Torts, 222, ec seq., cap. 6, sec. 1. Trespass to personalty consists in one f)erson meddling "with the goods and chattels of another, either by laying lold of, removing, or carrying aw.ay inanimate tilings, or by striking, chasing or driving cattle, sheep, and domestic animals in which the owner has a valu- able property:" Addison 2G7, cap. 7, sec. 1. A person who lawfully obtains possession of goods, but unlawfully withholds them against the Avill of the owuer, without lawful cause, is guilty of conversion and is liable in Trover. As to this form of action generally, see Pioscoe's N. P. 13th Ed. 928, et Kcq. ; Addison on Torts, 2nd Ed. 2(59, et ,sei/, ; and Lovckih v. Poihjer, 2(5 U. C. 11. 15();'Rob. & Jos. Digest, "Trover." Lien is the right of one nuin to retain that which is in his possession belonging to another, until certain demands of him, the person in possession, are satislied , it gives no right of action in the chattel ; and is either partifiiJar, that is for some charge growing out of or connected with the identical thing ; or ijenerat, that is a right to retain for a general demand: Wharton, 443. If a person having a lien claim goods as his own, his lien is at au end, and he is liable for a conversion: Wcekt v. Ooode, 6 €. B. N. S. 3G7. The omission to mention a lien when goods demanded is not a waiver of it, and if the person who has possession claims a right to detain them in respect of two separate sums claimed to be due to him, and he has a lien only in respect of one of these sums, his refusal is no evidence of a con- version, unless the sum in respect to which lien exists is tendered : Addison on Torts, 279. Where a party claims to detain goods upon two causes of lien in such way as to dispense with tender of either, he is guilty of conversion unless he can sustain both: Kcrfordx. Mondel, 28 L. J. Ex. 303; same case, 5 H. & N. 931, Amer. Ed. Sale of goods puts an end to lien; White v. iSjwttiffiie, 13 M. & W. 008; Gurr v. Cuthhe.rt, 12 L. J. Ex. 309; MuUiwrv. Florence, 3 Q. B. D. 484. A &ale for unpaid purchase money is not a'conversion : Milijate v. Kihhle, 3 M. k (r. 100. The finder of a chattel can maintain trover against any one but the true OM'ner: Bridijes v. Hawkenworth, 21 L. J. Q. B. 7"). 'J'he title to game, as well as birds or other animals, is generally in the owner of the land where killed: Hijjcf v. Lonsdale, 1 H. & N. 923; but see Blailen v. Ifi'j'js, 12 L. T. N. 8. Glo (H. L). In England a title to a chattel is often acquired by purchase in market overt. Such is not the law in this Province. A purchaser of a chattel at Sheritt''s or Bailiff's sale only gets such title to it as the execution debtoi had, and with.out any warranty of title, unless expressly made: Chapman v. Speller, 14 Q. B. 621; Morleijv. Attenhorotii/h, 3 Ex. 500. When a bill or note has been proved to have been stolen or lost, or to have -'.■1 ■;■ -1 f ".*'.v" ■ ,i tf ^.■. .. ■^^ •'■ ' ''■ .:■•v::>,^n^v•: .( •■ ;.-■»■ ".!w -.■..■»: 62 JURISDrCTION. [s. 54. 11,'.*;;; ■ ■«'■„ ;■ ■>;:« 4 "»r" ■■1 .[■:H' ■' ' ■|ii :' been olitained ])y fraud, this affords a presumption that the thief f)r the finder, or the fiviudidi'iit pussessor of the security, would dispose of it, and would place; it ill the hands of another to sue on it. Such proof on the ])art of the dcfend;iiit casts upon the ])laintitl the burthen of shewing tliat he gave value for the note: Jldi/ci/ v. JiiiiwcH, ].'{ M. &, W. 7.S. So also, if note given by a man in fraud of his partners, and transfeiTcd: Hor/fj v. Sboi, 18 ('. B. N. S. 42<5. The right of action for trespass or trover to goods after insolvency is in the .Assignee: Insulvent Act, 187"), s. 10; Sai/rr v. /JiiOnir, 11 i^. B. .S'if). A judgincnt in trover or detinue only irh'T satisfied vests the property in the defendant (liriustiicad v. llarrisoii, L. B. (5 (J. V. 584, in K.\. (Ihainb. L. 11. 7 C 1'. 047, and ex jKirtr Drake, 5 Chan. I). 8()(); though a judgment against one of several joint tort feasors is a bar to an action against the others for the same cause, notwithstanding such judgment remains unsatisfied : lirUimiicad, v. l[arriHon, L. R. 7 C V. 547. And a judgment in a Division Court wt>uld be an estoppel in any other Court: Flitters v. Atlfrei/, L. R. 10 C. P. *2'J: Aii.'-tin v. Mills, I) Ex. 288. If goods are sold by a trespasser the owner can either sue in trespass or waive it, and sue for the purchase money: Neate v. Unrdinij, 6 Kx. 849. An owner of a chattel taken by one who has no right to it, and who refuses to give it up on demand, can use force sufficient to enable him to retake his property: Blades v. Hii/gs, 10 C. B. N. S. 713. As to the action fer etmversion, see further: Addison on Torts, 2nd Kd. 304. Where chattels have lawfully come into the hands of a person, a demand of the pro- perty and a refusal to deliver it up are necessary to prove: BiirroiKjhes v. lidj/ne, 5 H. & N. 2i»G; Roscoe's N. 1'. P^vidence, 13th Ed. 1)47. A teiniiorary interference with chattels is not sutHcient; it must appear that the owner has been entirely deprived of the use of them: Eiujland v. Coir ley, L. R. 8 Ex. 12(5, 130; J/iorl v. JJutt, L. R. 9 Ex. 86. Though goods purchased, yet, if '.endee not entitled to iiuiiiedinte possession, trover will not lie.- Lo?'d v. Priec, L. R. 9 I'jX. 54. Where goods are stolen, trover lies against any one but the thief, without tae latter being first convicted: Wells v. Abrahams, L. R. 7 Q. B. 554; Oshorn v. O'illeff, L. R. 8 Ex. 88. A Bailitf, after seizure under execution, would have a right to maintain trover: Watson on Sheriff, 2nd Ed. 302 ; Ex parte iVilliams, L. R. 7 Chy. 138. Evidence of possession is sufficient against a v/rong doer: Jetferiesw Great Western, liailway Company, 5 E. & B. 802; Bourne v. Fosbrooke, 18 C. B. N. S. 515; Patjev. Cowasjee Eduljec, L. R. 1 P. C. 127, 145. \n conversion of goods, the general rule is that the damages should be the value of the thing converted at the time of conversion and interest (Leslie e.t al. V. Canada Central Railway Company, 44 U. C. R. 21) ; and jiroof of a bona fide. sale to a solvent customer is evidence on which a Judge or Jury should act: France v. Gaudet, L. R. 6 Q. B. 199, 204; Mayne on Damages, 339, etseq.; Addison on Torts, cap. 21. Where a defendant will not produce the ar^'icle, it will be presumed against him to be of the greatest value that an article of that species can be: Mayne on Damages, 3rd Ed. 346. As to special damage, see Mayne 349, 350; Roscoe's N. P. 13th Ed. 954. Where a person, even with a limited interest in goods sues a stranger, he has a right to recover their full value [Sivire, v. Leach, 18 C. B- N. S. 479) ; but if the defendant has an interest in the gooils, the plaintiff can only recover to the extent of his interest: Johnson V. Stear, 15 C. B. N. S. 330; Halliday v. Ilolijate, L. R. 3 Ex. 299, 301 ; Lomj V. Monck et al., 22 C. P. 387. Damages may be given in the nature of interest in trover or trespass to goods: Rev. Stat. cap. 50, sec. 268. As to actions of trespass, and for injuries from negligence, and the negligent management of chattels, see Addison on Torts, cap. 8; Saunders on Negligence, cap. 1. As to negligence on the part of bailors and bailees, see Addison on Torts, cap. 9 ; Saunders, 165. As to negligence on the part of common carriers, and the form of action, see Pontife.x v. The Midland Railway Company, 3 Q. B. D. 23. common ferrymen and innkeepers, see Addison, cap. 10. Of wrongful distress, distress for rent, and distress damage feasant, see Addison cap. 11. As to li ' '■ je, see with a ir full iterest ohnson Lov(j iterest ons of ent of As to ap, 9; d the 23. tress, As to • . •• I'-i ■*; ■•If -.vt - s. 54.] JURISDICTION. 63 2. All cliiims and dpinatula of debt, account or breach of contract, or covenant or money demand, {h) whether payable in money or otherwise, whore the amount or balance claimed does not exceed one hundred dollars (41 Vic. c. 8, s. G, s.s. 2); and except in cases in which a jury is le_s;ally de- manded by a pai-ty as hereinafter provided, the Judge shall l)e sole Judge in all actions brought in such Division Courts, and shall determine all questions of law and fact in relation tliereto, 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. ('. S. U. C. c. 19. s. 55. actions for assault and battery and wrongful imprisonment, see Addison, cap 12. As to actions for malicious arrest, sec Addison, cap. 1,3. Of trespass \n execution of void or irrej^ular process, and the responsibility of Judges and ministerial ofticers of justice, and parties setting th'jiii in motion, see Addison, cap. 14. As to trespasses and injuries committed in execution of warrants and order of .Justices, and the respon.sil)ility of Magistrates, f 'onstaliles and their assistants, and parties setting them in motion, see Addison, cap. 15. As to injuries from the exercise of statutory jiowers, see Addison, cap. 10. Aa to fraudulent misrepresentation and deceit, see Addison, cap, 18. An action of detinue is a personal action within this sub-section (Taijhi'v. Addyinun, IS ('. B. 309; liriiantv. Ifirherf, 3 0. P. D. 389), and so i.s replevin : "//«(•«« v. Elliott, 9 U. C. L. J. 147. Ab to limitations of actions ex delicto, sec Addison, c\p. 21, sec. 1. (h) It is submitted that this means all actions ex r.ontrnrfu, whether founde«l upon specialty or simple contract debts, .and whether the damages are liquidated or not : Morris »^ Cameron, 12 C. P. 4'22. In all contracts there must be a concurrence of intention : Benjamin on Sales, 2d Ed. 33 ; Mclnto.^h v. Brill, 20 C. P. 426 ; liickford v. G. W. R. Co., 28 C. P. 510, and cases there cited ; Koscoe's N. P. 13th Ed. 494. Parol, or simple contracts, are those " M'hich are either made by word of mouth, or are inferred from the silent language of men's conduct and actions, or are put into writing and signed by the parties to them ; but are not sealed and delivered, and cannot be enforced, luiless they are founded upon some good or v'aluable consideration : " Addison on Contracts, 7th Ed. p. 2. Specialty contracts, or contracts made by deed, are those put ' ' in writing, sealed and delivered, by the parties to them ; " Addison, 17. It is proposed to refer to the different forms of action which arise under these two heads, and which most frequently become the subject of litigation in l>ivision Courts. Goods sold and delivered. — The plaintiff must prove three things: the con- tract of sale, the delivery of the goods according to the contract, and the value of the price of the goods delivered : see Roscoe's N. P. 1,3th Ed. 494, 521 ; Bullen & Leake, title, "Goods sold and delivered ; '" Rob. & Jos. Digest, 2698 ; Addison on Contracts, title, ' ' Sale of goods and chattels ; " Fisher's Digest, 7570. Goods bargained and sold. — On a contract of sale of goods the obligations of the seller are : 1, to deliver, or preserve for delivery, to the buyer ; 2, to per- /^'\i!.6iUi'-^ -7. ciA"- ■•.....:'...-'■....'';'•'.■■,•;■• >' .■ ,■ • , "^ i-;-* /:• ■ , .I.-'. •■ , '" , .'■y:\U^i^ ■■■:€:■■ ^ 64 .lURISDlCTION. [s. 64. a. >*> ..''I •'■':yv '■ . 1(11' ■ 'III ' '>M •4 "t ,j^; form Wiirranties, express or implied ; 3, neither wilfully to miarepreaent nor fniudiilitntly to coiiecal anything relating to tiie thing sold ; and the ohligationw of the Uuyer are ; ), to ae(;ept the artiele Hold ; and li, to pay the priee ; Itoscoe, 13th Kd. 4i(3, ct xf(i. The property passes if tlie intention of the parties is that it should jiaas : Shiriimn ft al. v. h'trc, '24 i'. P. 245 ; Gkdxoii v. Knaj)/), 'JO C. I'. n.M. At Common Law a sale of ehattels was good, though the hargain was hy parol ; hut hy the 17th sec. of the Statute of Frauds, it is enacted that " No enutiMet for the Hale of any goods, \\ ares and merchandises, for the priee of £10 sterling, or upwar<ls, siiall l)e allowed to he good, except the buyer shall accept ]>art of tiie goixls so sold, and actually receive the same, o*- give some- thing in earnest to hind the hargain, or in part payment, or that some note or memorandum in writing of the said hargain he made and signed hy the parties to he charged hy such contract, or tlieir agents thereunto lawfully ant orized." In this Province this section applies to sales of goods, of the value of i^H) ami upwards ; Kev. Stat. cap. 117, s. 11. For the c/isea on this form of .action sec lloacoo'a N. P. 13th E<1. 493. H .scy.; Hob. & Jos. Digest, title, " Sale of goo.;s," at page 573: Addison on Contracts, 7th Ed., title, "Sale of goods and ehattels ;" BuUen & I/cake, title, "(ioods bargained and sold : '' Benjamin on Sales, '2nd I'^d. 12 to 14'J inclusive ; Fisher's Digeat, 7570 ; L. 11. Digest, 2361). Mow II lent. — The plaintiff will have to prove the loan of the money. It is not sufficient, merely, to prove the ))ayment of money to the defendant, for in Bueh case the preaumption is that the money is paid in li(pn<lation of an ante- cedent debt ; but if tiio plaintiff' can shew any money transactions l)etween him and the defendant, from wliich a loan may ho inferred, or any a])plication by the defendant to borrow money at the time, this, coupled with the payment, will be evidence of a loan : Welch v. Seaborn, 1 Stark, 474 ; Vary v. (Jerrwh, 4 Esp. !> ; Roaooe'a N. P. 13th Va\. 5()5 ; Addi.son on Contracts, title, "Bor- rowing and lending ;" Hob. and .Jos. Digest, title, "Money counts ; " Bullen & Leake, title, " Mimey lent ;" Fisher's Digeat, 5890 ; L. H. Digest, 1783. Moneif paid. — In order to maintain this action the plaintiff' must, if denied, prove : 1, the payment of the money bj' the plaintiff' ; 2, that it was paid at the request of the defendant, and to his use : see Boacoe's N. P. 13th Eil. 559 ; Bullen & Leake, and Addison on Contracts, title, "Money paid;" Fisher's Digest, 5894 ; L. R. Digest, 1783 ; Hob. & Jos. Digest, title, " Money counts." Moncij luid and received. — This is the most cf)mpre)ienaive form of action of all the money counta : see Koscoe's N. P. 5(50, 13tli Ed. ; Addison on Contracts, and Bullen & Leake, title, "Money had and received;" Fisher's Digest, 5903. Money is not recoverable back simply because paid under protest : Street v. Tlie Corporation of Siincoe, 12 C, P. 292; Benjamin \. Tlie Corporation of Elgin, 26 U. 0. B. l>age 664, and cases there cited. It must be paid under circumstances amounting to oppression, imposition, extortion, deceit or fraud : Addison on Contracts, 7th Ed. 1063; Hob. & Jos Digest, title, "Money counts;" L. B. Digest, 1783. Merest.— See Roscoe's N. P. 13th Ed. 584 ; Rob. & Jos. Digest, 1884 ; Fisher's Digest, 4956, and notes to section 106 of this Act ; Addison on Contracts, and Bullen & Leake, title, "Interest;" L. R. Digest, 1495; Rob. & Jos. Digest, 1883. Account stated. — In order to recover in this form of action, the plaintiff must prove an absolute acknowledgment by the defendant of his claim. A qualified acknowledgment is not sufficient : Roscoe's N. P. 13th Ed. 588 ; Bullen & Leake and Addison on Contracts, title, "Account stated ;" Rob. & Jos. Digest, "Money counts ;" Fisher's Digest, 59.38. To support the claim there must be an antecedent and subsisting debt between the parties : Toms et al. v. Sills, 29 U. C. R. 497 ; see Buck v. Hurst, L. R. 1 C. P. 297 ; L. R. Digest, 28 Work and materials. — In an action for work done, the plaintiff must prove : 1, The contract, express or implied ; 2, the performance of the work and supply of materials, if any ; and 3 the value, if the remuneration is Dot ^:;certained by the tit! ( s. 54.] JUIUSDICTIOX. 66 tlie contract : Roscoe's N. P. 13th Ed. !"»! ; Bullon & Lnake anil Addison on (!i)i)tracts, tlt)i 4, "Work d'nu!," and "Work and survicus;" Hob. & Jos. Digest, title, "Work and labour;" L. R. Di^'cst, ;i()2l. On (VI amtril. — In an action on an award tlie plaintilF muat jirovc the sub- mission and award, and the |ierfornianee by himself of any conditions j)recedent; Ko.'Kjoe's \. 1*. IHth Kd. 470. If the aubniission should Ix; by mutual bonds, then in action on the. awnrd tlie execution of both bonds mu.st be jiroved : Ferrer V. Oiy», 7 13. & 0. 427 ; /Jrnzier v. Jones, 8 B. & (J. I'i4 , l!ob. & Jos. Digest, i\4, el seif. ; Addison on (Contracts, and Hullen & Leake, title, "Arbitration;" ilusHcU on AAvards, 4tli Kd. 4<)8, and title, "Action ;" L. 11. Digest, l.»()(). Oil (III Aftuniei/'-s hill of aisl.i.- The plaintiff must prove: 1, His retainer aa attorney by the (U'fendaut, wliich may be rlone by sliewing either an e.vpresa retainer, or that the defendant attended at his olKce and gave <lireetion,s, or in other ways recognized his eniploynient ; 2, Tiiat the business was (h)ne, which may be proved by a clerk or other agent, who can speak to the existence of the cause or the l)usiness in respect of wliieh the charges are made, and can prove the principal items: lio.scoe's N. V. \'M.\x Ed. 473. If the work charged for was ridirelj/ useless to the defendant tlirough the negligence of the Attorney, the latter cannot recover anything : Teui}der\. McLae/ilaii, 2 N. H. l.'-Kj ; li(>ln)in(>n W.Emanuel, L. It. it C. P. 41."); Rob. & Jos. Digest, 322; Areli. Tract., title, "Attorneys, their remedies for their bills ;" L. R. Digest, 2i>'M). The bill does not carry interest during the pendency of the suit or proceeding : Lyddun v. Mox.% 5 U. C. L. J. 23!>. The defence of ncni-delivery of a signed bill for one month befoic action is a statutory defence, and notice of it must be given : 7 U. C. L. J. ISo, 13(i ; see also notes to section 92. BdllmentH. — For actictn under this head, see Bullen it Leake, titles, " Bail- ment," "Carrier" and " Livery Stable Keeper ;" Rob. & .Jos. Digest, 3G8 ; Addison on Contracts, titles, "Bailment for Hire," anil "Bailment without Ueward." The increase generally behmgs to the Ijailjr : Dillaree v. JJoijle, 43 II. 0. R. 442 ; Fisher's Digest, .VGO ; Roscoe's N. P. 13th Ed. Ol.'i. Aijhtment of entile. — See Bullen & Leake, title, "Agistment;" Addison on Contracts, "Agisters." Bills of exchanfje invl promksory notes. — For actions on these, see Bullen &, Leake, under this title ; Roscoe's N. P. 13th Ed. 350, et .scr/. ; Rol). & Jos. Digest, 475 ; Addison on Contracts, under title, "Bill of Exchange ;" Byles on Bills ; Story on Promissory Notes. Chejiaes. — In respect to actions on cheques, see last j)aragraph. Bonds.— For action on bond, see Bullen &, Leake and (Jhitty's Precedents in Pleading, title, "Bond;" Roscoe's N. P. 1.3th Ed., same title; Addison on Contracts, title "Bonds ; " Rob. & Jos. Digest, 598 ; L. R. Digest, 340 ; notes to section 56. Board mid lodging. — A contract for board and lodging does not require to be in writing : )Vr'i<jht v. Stacert, 2 E. & E. 721. Under title of " Board and Lodging," see Bullen & Leake ; Chitty'a Prec. ; Addison on Contracts ; Ros- coe's N. P. Carriers. — See Bullen & Leake ; Chitty'a Prec. ; Addison on Contracts ; Addi- son on Torts ; Roscoe's N. P. ; Taylor on Evidence ; Saunders on Negligence ; Campbell on Negligence, under the title "Carriers ;" Rob. & Jos. Digest, 634 ; Fisher's Digest, 1409 ; L. R. Digest, 438. Calls for stock. — In this action, see Bullen & Leake, titles, "Calls" and "Company;" Roscoe's N. P., "Joint Stock Company;" Addison on Con- tracts, " Calls ; " Rob. & Joa. Digest, " Corporations ; " Fisher's Digest, 7161 and 9686. Forbearance to sue. — The forbearance of an action commenced for a honafde claim IS a sufficient consideration for a promise, as the forbearing a suit in iti- tuted to try a doubtful question of law ; but forbearing a suit in which tbe 6 • fi ■■,»,, • , ■ 1 ■'' '."^.w^'' ""I »•' *^ : **"* '.■'!■■ '' ,»,'/^ • .-• i» *, \ t"i!i:-'M>i\>tt:-"\ 'J V 'ill,' •' •» • •■• I •;•>,.,>.■■■•?/•.-' VH-'^ • . ' ■■•■i'''4.'''"^lt-.';' ' ■'V i»'^"t« «6 ji;risdictiox. [s. 51. ■ill plaintiff liatl no cauHO of action, anil hian it, will not Hupjxirt a promise : Wmlr V. Siiiixm, •_»(', li. .'itS; Colli.'ilin- V. lii.srfioth/i'iiii, L. II. 't Q. H. 44! > ; Mttrkl,,, V. A''/-/- »/ rf/., 27 C. 1*. 47 ; Aildison on Contracts, titln, " Forln-'arancu." (Ji)iin(iifci'.i. - A guarantee is a oimtract to an.swur for the i)aynit!nt "of u delit or i)t!rforin vufo of a duty by anotlior jwrHon :" Jloacou's N, 1'. l.Stli Kd. \^^U : Hce also AddiH m on (';intracts, title, "(liiarantee ;" Uol). k.. Jos. Digest, lt)2fS l>e (;i>lyar on (iuarantee» ; L. II. Digest, \\\m ; Kishor's Digest, 4'2()r>. Tlie liability of tiie pnncipal debtor innst continue : Puiichirw '/'nnfiri/, ,S7 U. ('. H. 3t)7, and cases cited. A guarantee tliat a promissory note made l>y anotlior will be paid at maturity is within the 4tli seetioa of tiie Statute of Frauds, and must bu in writing : Wdnihald v. Fuotc et til., '2 App. liop. r)7!>. As to the eoustruction of guarantee for future and past debt.s, see Morrell v. Oui/mn, 1 Ch. D. 151, and eases cited. J/lrc of t/in>!lti. — One who hires goods and chattels, and negligently uses them, is liable for damage : BuUeu & Ijeake, '2ud Ed. 140 ; see Bailment, auimu and note J the 'eto. /iidciwiitii's.- -For actions brought on indemnitiea, see "guarantee," suprti, and authorities there noted. Lnnillortl and tenant. — In actions l)etween landlord and tenant for rent, use and occupation, &e., see lloscoe's N. 1'., title, " Rent," " Ijandlord," " Use and Occupation ;" Uob. & .los. Digest, 2()()S ; Fisher's Digest, 5I))4 ; Wood- fall's Lanillord and Tenant : Addison on Contrjvcts, title, " Landlord and Tenant." Ijli/iiidafi'd damaijeH. — See BuUcn & Tjeake and (^Ititty's Prec, and Addison on Contracts, under above title; MrPliec v. Wihon, 25 IJ. C R. 1(5^; also cases at 23 C. I'. 1<)5, .32 U. C. R. 590, 33 U. (?. R. 520, 38 U. O. R. 35 and 333. 17 (1 P. I35», L. R. 3 C. P. 1()1, 4 H. & N. 501), L. R. 8 C. P. 70, L. R. 2 Eq. 221, T>. R. J» C. P. 114 and 115; Roscoe's N. P. 13th Ed. .327. Medical attendanee. — See Bullen &. Leake under this head; also Rev. Stat. cap. 142. See notes to section 92. lieplerln bond. — F^*" actions on, see Bullen & Ijeake, Chitty'a Prec, under above title ; Roscoe's N. P. 711, and section 56 and cases noted. Reward. — In action for reward offered, see Bullen & Ijeake and Cliitty's Prec, title, "Reward;" Addison on Contracts, 7th Ed. pp. 8, 657; Turner v. Walker, L. R. 1 Q. B. 641 ; L. R. 2 Q. B. .301 (Ex. Chamb). Witne.^H. — An action can be maintained by a witness against the party that Bubpoen.ied him for his expenses (Hale v. Bates, E. B. & E. 575) ; and if pai<i his fees and does not attend, or the cause is settled and subpoena not acted upon, the money is recoverable back as money had and received : Martin v. A ndrewi. 7 E. & B. 1. Warrant;/. — "A warranty in a sale of goods is not one of the essential elements of the contract, for a sale is none the less complete and perfect in the absence of a warranty ; but it is a collateral undertaking, formmj pari, of the contract by the agreement of the parties, express or implied. It follows, there- fore, that antecedent representations made by the vendor as an inducement to the buyer, but not forming part of the contract when concluded, are not •varranties. It is not indeed necessary that the representation, in order to •constitute a warranty, should be simultaneous with the conclusion of the bar- gain ; but only that it should be made during the course of the dealing which leads to the bargain, and should then enter into the bargain aa part of if : " Benjamin on Sales, 2nd Ed. 497. A warranty given after the sale requires a new consideration : Roscorla v. Thoma.% 3 Q. B. 2.34. No warranty of quality is implied by the mere fact of sale : Hopkinn v. Tanquerwj, 15 C, B. 1,30 ; but this is subject to some very important exceptions. There is, however, no exception where an existing specific chattel, inspected by the buyer, has been Bold : Parkinnon v. Lee, 2 East. 314 ; Chanter v. Hopkins, 4 M. & >V. 369. Where ■a chattel is to be made or supplied to the order of a purchaser, there is an im- ;' ,>'iit'i-"' 54.] JURISDICTION. jilied warranty that it is reasonably fit for the purpose for which it is ordinarily used, or for the particular purpose intended I y the buyer, if that purpose be •DUinHinicated to the vendor when the order is given ; Jiarr v. <fihfion, li M. &, W. ;<!H); JosliiHj V. KwtjKford, 13 0. B. N. S. 447 ; llundallv. Ncicmn, 2 Q. B. I). 102. In a sale of goods by sample, the vendor warrants the (luality of the hulk to he equal to the sample yliiilhutt v. J/irL\w)i, Ij. R. 7 C P. 4.'W ; C'nunton V. ('/i(t/Hi'an, Ij. 11. 2 Sc((tch Ai)p. 250) ; and if the goods are not up to the sample, the purchaser nuiy refuse to aceejtt them ; Ih. He cannot aecejit part and refuse the rest ; he must accept or refuse all or none of an entire lot : //>. As to a sale of part of specilic crof*, see Itowell v. Vimpldiid, 1 Q. H. I). 2;">8, and cases cited. Sduietimes a warranty is inijilied from the usage of a particidar trade : Joncn v. Hiiwdin, 4 Taunt. 847. In a sale of goods by description, and not inspected by the buyer, there is an implied warranty that they are saleable {Jones v. Jimt, I,. 15. 3 Q. B. 1S>7; Bitjdom el al. v. Jioxnll, .38 U. C. R. 4.'52 ; but see Ward v. JMhs, 3 Q. B. D. l.')0; Francis v. Mans, 3 Q. B. \). .341 ; Snudi/s v. Ninali, 3 Q. B. D. 449) ; but the warranty does not extend to necessary depreciation resulting from transit {Bull v. Jioliinou, 10 Ex. 342) ; nor to the packages in wliicli tlie merchandise is contained : Gowcr v. Von Di'dahm, 3 Bing. N. C 717- Where an article is bought for a particular purpose known to the seller, and the buyer relies on the seller's skill, there is an implied warranty {liiijye v. Parkbimn, 7 H. & N. (too ; Macfartane v. Tai/hr, L. K. 1 Scotch App. 245 ; but see Swhjrmie, v, Bnice, 10 C. i\ 5G1) ; but where there is an express war ranty, an implied warranty is excluded : Dickson v. Zizinia, 10 0. B. 602. Although goods aohl by sample are not in general to be deemed as sold with an implie<l warranty, yet the facts and ci' Vi:- > -tances may justify the inference that an imi)lied warranty is superadded to the contract : Mmhj v. d'ny.'ion, L. R. 4 Kx. 4'J. The existence of the thing sold is not properly an implied warranty hut a condition : lienjamin on Sales, 2nd Ed. 62. The seller of provisions impliedly warrants them to be wholesome, or rather he incurs that responsibility l)y the old statutes : see Benjamin on Sales, 2ud Ed. 550 ; Webb v. Kniijht, 2 Q. B. I). 530. It appears to be now established, that in every sale of goods not by a public officer there is an implied warranty of title : lirown v. Cockburn, et al., 37 U. C. 11. 592 ; Wilxon, et al. v. Ma^on, 38 U. C. R., at p. 24. No jmrticular form of words is necessary to create a warranty : Benjamin on Sales, 2nd Ed. 496, c< .lei/. The test appears to be whether the vendor assumes to assert a fad of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may he expected also to have an opinion and to exercise his judgment. In the former case there is a warranty, in the latter not : Benjamin, 499 ; Addison on Contracts, 7th Ed. 500, et .seq. ; Oliphant on Horses^ 113. The warranty of an agent entrusted to sell is that of the principal : Addison, 503 ; see McDermott, et al. v Ireson, 38 U. C. R. 1 ; Howard v. Sheward, L. R. 2 C. P. 148. "A general warranty does not usually extend to defects apparent on simple inspec- tion requiring no skill to discover them, nor to defects known to the buyer. But the warranty may be so expressed as to protect the buyer against the con- 8e(piences growing out of a patent defect : " Benjamin, 502. Warranty of horsen.— As horses are subject to secret maladies, it is beat to take a warranty to provide against hidden defects, and a purchaser is not pro- tected otherwise unlesa he can make out fraud : Orrnrod v. Uuth, 14 M. & W. 661 ; Oliphant on Horses, 113. The general rule is, that whatever the vendor represents, and which can reasonably be intended to form part of the bargain, is a warranty : Benjamin on Sales, 497 ; Oliphant, 113, 134. A sound price is not tantamount to a warranty : Oliphant^ 114. A warranty of a horse is either general or qualified : lb. ; Cfiapman v. Owyther, L. R. 1 Q. B. 463. The buyer of a horse should always take care to distinguish between a warranty and a representation : Oliphant, 116. If the vendor give a written warranty, that ■'.V •:;•' ;;,:•■ • '.vv- -■.;■ '■■:' '. .• ■'.';< '•it. :■ ■•,.♦5;' ":;i .1 . •'■/■-AN/- ■:■.. 1 •■ .•.f-yr.: ' ■ ,•■■•.* ."■,1."" -■ ••'• ■ ,' ■ ■• •, -:• ■ , • , • 'ii .■ ■;.^, ■;!' ■*! 4.:; •; , • , •' ", • > •i ; V.V ■••i.- ' 'i) ■. ^^!v^' ■'¥"•■■ 1 ■' > ,;, ..' iill 1- lii .:■ i'' I 68 JURISDICTION. [a. 54. must govern (Tb.); auil it cannot be extendri by implication : Oliphant, IKJ. When several horses arc sold at an entire price and a warranty is given as to all. the contract of sale is entire, but the warranty is several : Ih. A waiTanty onlj extends to the state of the horse' at the time of the sale, unless the warrantor exjyreitshj fixes some future jjeriod to which he undertakes to extend it : lb. If a horse were sold as lit for a carriage, and he was not fit for that purpose, then- would be a breach of wa'-ranty (Chanter v. HopkiriK, 4 M. k W. 40G) ; but unfit- ness must be clearly proved : Oliphant, 118. Though a horse is sold with a warranty, yet any fraud at the time of the sale will avoid the sale, tlicmgh it i» not any point included in the warranty (Oliphant, 11!), 142 to 158 inclusive ; Steward v. Coesvelt, 1 C. & P. 23 ; Ktnncdij v. Panama, <£r., Mail (Joinpany, L. R. 2 Q. B., at page 587) ; but any immaterial representation proving untrue will not avoid the sale : lb. As to the sale and warranty of a horse by an agent, see Oliphant, 120 to 127 inclusive ; Hotvard v. Sheward, L. 11. 2 C. P. 148. A general warranty of a horse does not cover patent defects obvious to the buyer (Olii)hant, 127), or such as he knows of : page 129. In the case of breach of warranty of a horse, the buyer is neither bound to tender the horse nor give notice to the vendor of the defect (Oliphant, 159) ; nor is the seller bound to take back the horse unless it Avas so agreed (page 1(50), or unless the contract was executory only : Street v. Blai/, 2 B. & Ad. 45G ; Oliphant, 160 to 162 ; Addison on Contracts, 7th Ed. 464, 504. A breach of warranty may be given in miti- gation of damr.ges in an action for the price : page 162. Where there is fraud the purchaser lias a riglit t » return the horse : Oliphant, 164. If there is an agreement that a horse is to be returned if unsound or unsuitable, the buyer must return him as soon as he discovers either : page 165. So also if he is unfit for a particular purpose : jiage 166. A mere verbal offer after the sale to take back the horse amounts to nothing : Oliphant, 166. If a horse should be sold subject to return, and not returned within the stipulated or a reasonable time, the sale would be complete : page 166. " Where a breach of warranty has taken place, it is prudent for the buyer in an ordinary case to tender the horse back to the seller iitinu'dkiteli/ on discovering such breach, and so entitle himself to to be repaid the expenses he has been put to in keeping him ; and if the seller receives him back there will be a mutual recission of the original contract" ; Oliphant, 167. Should the vendor not take back the horse he can be sold, but it should be to the best advantage : fb. If the purchaser does not wish to tende.- the horse he should at once give notice of the defect : //;. The seller, on receiving notice of a breach of warranty, should have the horse examined (page 168) ; and so should the purchaser. A breach of warranty is no answer to an action on a note for the price; but if an action be brought by the seller ov, the note, and /ra»(/ can be proved, that is an answer in toto to the action on the note, provided the purchaser repudiated tlie contract in time : Oliphant, 168 ; Byles on Bills, 9th iild. 127 ; Warwick v. Nairn, 10 Ex. 762 ; Sheffield Nickel Company v. l/nwiii, 2 Q. B. D. 223 ; Waddell et al. v. Jaynes, 22 C.'P. 212. What is " linmHndne.ss" in a horse is difiicult to define. Mr. Oliphant says, at page 66, "The rule as to unsoundness is, that if at the time of the sale the horse has any disease, which either actually does diminish the natural usefulness of the animal so as to make him less capable of work of any description, or which, in its ordinary progress, will diminish the natural usefulness of the animal ; or if the horse has, either from disease (whether such dis^^ase be congenital or arises subsequent'y to its birth), or from accident undergone any alteration of structure, that either actu- ally does at the time, or in its ordinary effects will, diminish the natural use- fulness of the horse, such a horse is unsound." Temporary disease or accident is unsoundness: Oliphant, 69. "A vice is a bad habit, ar;l a bad habit, to constitute a vice, must either be shewn in the temper of the horse, so as to make him dangerous or diminish his natural usefulness, or it must be a habit decidedly injurious to his health :" Oliphant, 69. For what are cases of nn- Houndneaa and ince coming within the usual warranty of horses, we particularly 8S. 65, 56.] REPLEVIN. 69 55. Upon any contract for tlie payment of a sum certain ^",j'|]r,,^^y.^ ill labour or in any kind of goods or commodities or in any >ii<:"it "i other manner (c) than in mone\, the JudM, after the day aitinm-h ^ ' •' ' . . contract not lias passed on whicli the goods or commodities oiight to have for payment 1 ° . ^ in iiiouey. lioeu delivered or the labour or other thing performed, may give judgment for the amount in money as if the contract had been originally so expressed. C. S. U. C. c. 19, s. 5(5. 50. The said Division Courts shall also have jurisdiction JurisiJiction <• 1 • / i\ 1 1 1 <• ii 1 '" replevin. in all actions of replevin, (a) where the value oi the goods or other property or effects dis|,rained, taken or detained, does not exceed the sum of fbrty^uollars, as provided in rcv. stat " The lieplevin Act." 53 V. c. 45, ss. G & 7. "■ '^^' "■ ^ refer to Oliphant on Horses, 64 to 108 inclusive ; Addison on Contracts, title, '• Warranty ;" Fisher's Digest, S.loJ ; L. R. Digest, 21)28; Kob. & Jos. Digest, "Warranty;" Koscoe's N. P., title, "Horse." Paiimcnt. — " In general the party who pays money has a right to direct the application of it ; but where money is paid to a creditor, generally, without any specific appropriatioji by the party paying, and the creditor has several d.^mands .ii,'aiust the party paying, he may apply the money paid to whichever of those demands he pleases. The appropriation by the debtor need not be express; it may be inferred from conduct or circumstances indicating his intention : " lUtscoe'd N. P. 13th Ed. 039, et seq., and cases cited ; Hob. & Jos. Digest, 2715; Addison on Contracts, "Payment;" County of Frontenae v. Bredtn, 17 ♦Jraiit, G45. J^lopfxtye in transitu.— See Wlky v. Smith, 2 Sup. Court R. 1 ; Addisou on Con., 7th Etl., pp. 47(), 485 ; Benjamin on Sales, p. 089, et seq. (t) The object of this sectioa is to provide for a class of cases which fre- <}uetit)y arise in the country. Agreements are frenuently entered into by which, ill tlie form of a promissory note, a person un<lertakes to pay a certain sum ill some designated commodity. According to the well known principles of law, this would in the higher Courts have to be declared for and recovered upon as, nil ordinary simple contract debt, the consideration necessarily being alleged and proved. The section in question appears to place such a transaction, after the <l;vy for performance has expired, much in the same light as a liability ujion a jiromissory note, and the Judge may view the transaction and give judgment as if the contract had originally been expressed as payable in money. A demand would not be necessary by the plaintiff before tlie suit, it being incumbent on the defendant to offer to perform the work or otherwise fulfil his promise: Teal v. Clarknon, 4 0. S. 372 ; Jouea v. (/ihhonn. 8 iix. 920 ; Crahtree V. McMersmith, 19 Jowa R. 179; 1 Araer. Law Review, 538. Should the con- tract be to deliver wheat "F. (). B." it would be the duty of the buyer to pro- vide cars for the shipment, and if not done there would be no breach : Mar-shnU V. Jamiesun, 42 U. C. 11. 115. ((/) In what cases goods are reple viable, pjb Rev. Stat. cap. 53 (which we qu(.te as follows), and cases cited in Rob. & Jos. Digest, 3296 to 3299. REPLEVIN ACT. " Heij Majesty, by and with the advice and consent of the Legislative Aa- sembly of the Province of Ontario, enacts as follows : L This Act may be cited as " The Replevin Act" .•;yt,J|;ii.V;,;tvW^:' IP* ■■A ;" '*ii-M: ■ '■"'^■" *"■■"!"■ .. : , "" ■"1 ifllj^ %•)!, I,'". ' •< ». ■' tllll -;■ ."■ !'' „ • Jil, ■•'■* • ■■'■'••"''■ ' -h If ID " 'l''',;i" ,',«:iif :4, -'■:■:*■• ^t' '■■■ t'. •■.■■■ ■ \ I I ■ 'k*" ■ ■ "■ ■ *!■*;;[■ 1. ■'■1,1 •'"•:d!;i: iir.'!ii: iUilt "..^'tti, 70 REPLEVIN ACT. [s. 5C. WHEN GOODS REPLEVIABI.K. 2. Wherever any goods, chattels, deeds, bonds, debentures, promissory notes, bills of exchange, books of account, papers, writings, valuable securities or other personal property or effects have been wrongfully distrained under circum- stances in which by the law of England, on the fifth day of December, one thousand eight hundred and fifty-nine, replevin might have been made, the person complaining of such distress as unlawful may obtain a writ of replevin in the manner prescribed by this Act ; or in case any such goods, chattels, property or effects have been otherwise wrongfullj' taken or detained, the owner or other person, or corporation capable of maintaining an action of trespass or trover for personal i)roi)erty, may bring an action of replevin for the recovery thereof, and for the recovery of the damages sustained by reason of such un- lawful caption and detention, or of sucn unlawful detention, in like manner as actions are brought and maintained by persons complaining of unlawful dis- tresses. C. S. U. C. c. 29, s. 1. 3. No party to a suit or proceeding, in any Court, shall replevy or take out of the custody of the Sheriff, Bailiff, or other officer, any personal property seized by him under process against snch party in such suit or proceeding, 40 V. c. 7, Scked. A (92). REPLEVIN IN COUNTY COURTS. 4l. In case the value of the goods or other property or effects distrained, taken or tletained, does not exceed the sum of two hundred dollars, and in case the title to land is not bi-ought in question, the writ may issue frcan the Coimtj Court of any County wherein such goods or other property or effects have been distrained, taken or detained. C. S. U. C c. 29, s. 3. REPLEVIN IN DIVISION COURT.S. 5. In case the value of goods or other property or effects distrained, takerj or detained, does not exceed the sum of forty dollars, the writ may issue fron>i the Division Court for the Division within which tlie defendant or one of the defendants resides or carries on business, or where the goods or other j)ropertv- or effects have been distrained, taken or detained. 23 V. c. 45, s. 6. 2. The matter shall then Ikj disposed of without formal pleadings, and. the- powers of the Courts and officers, and the proceedings generally in the suit, shall be, as nearly as may Ihj, the same as in other cases which are withhi the juris- diction of Division Courts ; and this Act shall, so far as any such suit is con- cerned, be read aa if it formed {lart of " The. Dirliiun fJaurts AcL" 23 V. c. 45, s. 7. PROCEDURE. 6. No writ of repIcA-in ^all issue out of either <rf the Superior Courts of law or any County Court. 1. Unless an order is granted for the writ on an affidavit by the person claim- ing the property, or siome otlier i>erson shewing to the satisfaetiim of the Court, or Judge, the facts of the wrongful taking or lietentioii which is complained of as well as the value and description of tho property, and that the person claim- ing it is the owner thereof, or is lawfully entitled to the possessiou thereof (a» the case may be) ; 23 V. c. 45, s. 1. 2. Or unless the person claiming the property, his servant or agent, makes ait affidavit which shall be entitled and tiled in the Court out of which tlte writ in to issue, stating : (a) That the jKjrson claiming the property is the owiier thereof, or that he is lawfully entitled to the possessiou thereof (describing the property in the afii davit) ; (h) The value thereof to the best of his belief ; (c) "riiat tho property was wrongfully taken out of the possessi<Tn>f tho claim- ant, or was fraudulently got out of his posaeaaion, within two calendar montLs next before the making of the affidavit ; 8. 56.] REPLEVIX ACT. 71 (d) That the deponent i8 advised and believes that the claimant is entitled to ail order for the writ ; {e) And that there is good reason to apprehend that unless the writ is issued without waiting for an order, the delay would materially prejudice the just rights of the claimant in respect to the property. C. S, U. C. c. 21), s. 4; 23 V. c. 45, 8. 1 (2). 3. Or (.in case the property was distrained for rent or damage feasant), unless the person claiming tiie property, his servant or agent, makes an affidavit (wliich sliall be entitled and filed in the Court from which the writ is t«i issue) stating: {(i) That the person claiming the property is the owner theret)f, or that he is lawfully entitled to the possession tLereof (describing the property in the affi- davit) ; {!/) The value thereof to the best of his belief ; (r) That the property was taken under colour of a distress for rent or damage feasant, and in such case the writ shall state that tlie defendant has taken and unjustly detain.* the property, under colour of a distress for rent or damage feasant (as the caae may Imj). C. S. U. C. c. 29, s. 4 ; 23 V. c. 45, s. 1 (3). 7. Where an ajr plication for an order is made, the Court or Judge may pro- ceed on the ex parte api)lication of the plaintiff, or may grant a rule or order on the defendant to show cause why tlie writ should not issue ; and may, on the <'z parte, application, or ou the return of the rule or order to shew caiuso, grant or refuse the writ, or direct the Sheriff to take a l>oiid in less or more than treble the value of the property, or may direct him to take and detain the property until the further order of the Court, instead of at once replevying the same to the i)]aintiff ; or may impose any terms or conditions in gianting tiie writ, or in refusing the same, on the return of a rule or order to show cause, as under the circumstances in evidence appear just. 23 V. c. 45, s. 3. 8. Except in the (.bounty of York, a Judge of the County Court of the County where the goods are which are sought to be replevied shall have tlie {K)wer of issuing the order in the same manner aa by law tlie Judges of the Sujierior < '(turts of Law are empowered to issue the same. 34 V. c. 12, s. 6. 9. In case a writ of replevin is issued, whether with or without an order, or In case any rule or order is made under the seventh or eighth sections, tlie defendant may, at any time, or from time to time, apply to the Court or Judge-, on alhdavit or otherwise, for a rule or order on the plaintiff to shew cause why the writ, or why the rule or order respecting the same, should not be <liec)iargc(i, <ir why the same should not be varied or modified, in whole or in part, as therein specified, or why all further proceedings under the writ should not be stayed, or why any other relief, to be refeired to in the rule or order so applied for, should not be granted to the defendant, with respect to the return, safety or sale of the property or any part thereof, or otherwise; and. the Court or •Judge may make such rule or order thereon aa, under all the circumstances, best consists with justice between the parties. 23 V. c. 45, a. 4. 10. The writ shall state the description, and value of the property, and shall be tested in the same manner as a writ of summons under " Thr Common Loir I'roccdurc Aft" and shall be returnable on the eighth day after the service of a copy thereof, and may be in the worils or to the effect of Form 1 in the ? .ohe- «lule to this Act, or otherwise adapted to the cii^cumstanees of the caae. C. S. ir. C. e. 29, S8. 5 4 4 (2). 11. Before the Sheriff acts on the writ he shall take a bond in treble th» value of the property to })e replevied, as stated in the writ; which Ixmd shall be assignable to tlie defendant; and tlie b <id a*id assignment thereof may 1 e in the words or to the effect of Form 2 in tht' Schedule to this Act, the condition being varied to correspond with the writ. C. S. U. C. c. 29, s. 8 ; 23 V. c. 45 h. 5. 12. Such bond shall be subject to the provisions of the eighth section of the Act passed by the Imperial Parliament in the eighth and ninth years of the ... 'i'.. mrnm. -.•*..>.;<ir-j'?;*.!..i V ■.'»■'<•< ••(■»■• '^ • • ■J '^^vjF^^ ■.I'f 72 REPLEVIN ACT. [S. 56. ■ ■■'.," str •■■'■! !i-- ■ -i 11 , *, *' " 1 ■i ■ ■ . ■■ ■*l(l- '.■•^■•■'li reign of His Majesty King William the Third, and chaptered eleven. 39 V. c. 7, s. 8. 13. The Sheriff shall not serve a copy of the writ until he has replevied the property, or some part of tlie property therein mentioned, if he cannot replevy t e whole in consequence of the defendant having eloigned the same out of his County, or because the same is not in the possession of the defendant, or of any person for him. C. S. U. C c. 29, s. 7. 14. In case the writ issues without an order, the Sheriff shaJl take and detain the property, and shall not replevy the same to the plaintiff without the order of a Judge or a rule of the Court in that behalf; but m<ay, within fourteea days from the time of his taking the same, re-deliver it to the defendant, unless in the meantime the pliiintiff obtains and serves on tlie Sheriff a rule or order directing a different disposition of the property; but this sectioji shall not apply in case of a distress for rent or damage feasant, under the tliird subsec- tion of tlie sixth section of this Act. 2.S V. c. 45, s. 2. 15. In case the property to he replevied or any part thereof is seeuretl or con- cealed in any dwelling house or other building or enclosure of the defendant, or of any other person holding the same for him, and in case the Sheriff publicly demands from the owner and occupant of the premises deliverance of the pro- perty to be replevied, anil in ease the same is not delivered to him within twenty-four hours after such demand, be may, and if necessary shall, break open such house, building or enclosure for the purpose of replevying such property or any part thereof, and shall make replevin accordixig t*> the writ aforesaid. C. S. U. C. c. 29, s. 9. 16. If tlie property to be replevied, or any part thereof, is concealetl either about the person or on the premises of the defendaat, or of any other person holding the same for him, and in case the Sheriff demands fnuia the defendant or such other person as aforesaid dehverance thereof, and deliverance is neg- lected or refused, he may, and if necessary shall, search and examine the person and premises of the defendant or of such other person for the purpose of repl'jvyiug such property or any part thereof, and shall make replevin according to the vrAt. C. S. U. C. c. 29, s. 10. 17. The Sheriff shall return the writ at or before the return day thereof, and shall transmit annexed thereto, 1 . The names of the sureties in, and the date of the bond taken from, the plaintiff, and the name or names of the witnesses thereto; 2. The place of residence and additions of the sureties ; .3. The number, quantity and quality of the articles of property replevied ; and in case he has replevied only a portion of the property mentioned in the writ, and c^onnot replevy the residue by reasoii of the same having beeit elcMgned out of his County V>y the defendant, or not being iu the possession of the defend- ant, or of any other person for him, he shall state in his return the articles which ho cannot replevy and the reason why not. C. S. U. C. c. 29, s. 11. 18. If the Sheriff makes such a return of the property distrained, taken or detained, having been eloigned, as would warrant the issuing of a caitins iu withernam by the law of Knglaixl, on the fifth day of Deceml^er, one thousand eight hundred and lifty-nine, then upon the filing of such return, such a writ shall be issued by the officer who issued the writ of replevin, in the words or to the effect of Form 3 in the SchediUe to th's Act, and before executing such writ the Sheriff shall take pledges, according to the law of England oji the said day in that behalf, in like manner as in oases of distress. C. S. U. C a. 29, s. 20. 19. A copy of the writ shall be served on the defendant personally, or, if he cannot be found, by leaving the copy at his usual or last place of aliode, witli his wife or some other grown person, being a member of his househohl, or an iumte of the house wherein he resided sua foresaid. C. S. U, G. c» 29, a. Ck 8. 56.] REPLEVIN ACT. 73 20. In case it is shewn by affidavit to the satisfaction of the Court, or of j Jutlgc having jurisdiction in the case, that the defendant cannot be served with a copy of the writ in any of the modes autliorized by the prece;ling section, the <Jourt or Judge, if the defendant has not appeared, may either recpiire some fur- ther attemjjt to effect service, or appoint some act to l)e done or some notice of the proceedings to be published in such manner as the Court or Judge deems proper ; an'l thereupon (or upon the first application if the Court or Judge thinks lit) the Court or Judge may authorize the plaintitt" to proceeil in the action in such manner and subject to such conditions as the Court or Judge directs or imposes, 37 V. c. 7, s. 37. 21 In case tlie defendant has been duly served with a copy of the writ, and does not enter his appearance in the suit at the return thereof, it shall not be necessary for the plaintitt" to enter an ajtpearance for the defendant ; but the plaintiff on filing the writ and an affidavit of service thereof, or a rule of Ctmrt or a Judge's order for leave to proceed, may proceed in the action in the same manner as in an action commenced by an ordinary writ of summons. C. S. U. C. c. 29, s. 12; 37 V. c. 7, s 38. 22. Ill a»y such case, or upon an appearance being duly entered by the defendant in the office of the Clerk or I)eputy Clerk of the ('rown, or of the (^lerk of the County Court from whose office the writ of replevin issued, the plaintitf and defendant respectively shall (in tlie absence of any jirovision herein or in any rules of the Superior Courts of (Jomnum Law to the contrary) declare, avow, reply, rejoin and otherwise plead to issue and take itU subsi'({uent pro- ceedings to trial and judgment according to the practice in replevin in l'!ngland, on the said iifth day of December, 1859, so far as ai)plicable to the Court having cognizance of the ease, but all such proceedings sliall be taken resi)ectively within the same time as in other [personal actions in the same Court ; and in case of default so to do, the parties resjiectively shall Ijc liable to the like judgment and proceedings as in such personal actions under the " The Voinmon Law Pro- cedure Act." C. S. U. C. e. 29, s. 14. 23. Where the replevin is brought for goods, chattels, or other personal pro- perty distrained for any cause, the venue shall be laid in the County in whicli the distress has been made, but in other cases it may be laid in any County. C. S. U. C. c. 29, 8. 13. 24. Where the action is founded on a wrongful detention, and not on the originni taking of the property, the declaration shall conform to the writ, and may be the same as in an action of detinue. C. S. U. C. c. 29, s. 17. 25. VVhere the action is founded on a wrongful taking and detention of the property, it shall not be necessary for the plaintiff" to state in his declaration a place certain within the City, Town, Township or Village, as the place at which the property was taken. C. S. U. C. c. 29, s. 18. 26- If the defendant justifies or avows tlie right to take or distrain the pro- perty, in or upon any place in respect of which the same might b(; liable to for- feiture, or to distress for rent, or for damage feasant, or for any custom, rate or duty, by reason of any law, usage or custom at the time existing and in force, he shiill state in his plea of justification or avowry a place certain within the City, Town, Township or Village within the County, as the place at wh-'ch such property was so distrained or taken. C. S. C C. c. 29, s. 19. 27. I'he foregoing provisions as to pleading ai"e in addition to the provisions of " TliP. Common Law Procedure Act." 28. In case the plaintiff becomes entitled to sign judgment by default, he shall be at liberty to sign final judgment for the sum of five dollars and costa according to the proper scale, but shall not be entitled to recover a larger sum except upon an assessment before a Judge or jury, or upon filing the written consent of defendant or hia Attorney, and an afiidavit verifying the signature to such coasent. 37 V. c. 1, s. 39. ■','•: ■..■•v5-"vt-'.^ ,•.; '"•■^ii'-'-'n'-.-*^*^ •■\ '^^■^-S.^:;.^'-- .!:■•>.■ ill' *if 74 REPLEVIN. [s. 56. l}^ • < ' ' ■■.:»iij„ ':... ■..::r;:d'f MI '" ;i ■,l.t. ■■ i ' * .; ;». 29, III case upon an assessment aforesaid, after interlocutory judgment by ♦lefault, the plaintitt' does not recover a larger amount than the said sum of live dollars, he shall tax such costs only as he would h.ave obtained had he signoil final judgment for the said sum under the preceding section, unless a Judge otherwise orders. 37 V. c. 7, s. 40." If the value fif the goods, or other property or effects, distrained, taken or detained, r/w,s not crrci'd ,*;40, the writ may issue from Division Court for the division within which the defendant, or one of the defendants, rcHidex (Brown v. London and North WtHtcrn liaUwny Company, 4 B. & S. 82G ; Alexander v. Jonex, I.. 11. 1 i-"x. ]'Mi ; In re Ladouceur v. Salter, 6 P. R. 305), or carries on huMness {Buckley \. Ifann, 5 Ex. 43 ; Brown v. London and North WeMern liailway Company, 4 H. & 8. 326 ; Sltea v. United Assurance Society, L. K. 3 C P. 21 ; Shields v. Great Northern Uailway Company, 8 U. C. L. J. 195 ; Ahrens v. McGilUffat, Grand Trunk Railway Company, Garnishees, 23 C. P. 171 ; followed in Westover v. Turner, Grand Trunk liailway Company, Garnishees, 2(5 C P. 510 ; see also notes to ss. G2, 63), or where the goods or other property or effects have been distrained, taken or detained : Eev. Stat. cap. 53, s. 5. By subsection 2 of the same section, the matter shall be disposed of in the Divi- sion Court without formal pleadings, and the powers of the Courts and officers, and the proceedings generally in the suit, shall be as nearly as may be the same as in other cases which are within the jurisdiction of Division Courts ; and that the Replevin Act shall, so far as any suit in the Division Court is concerned, be read as if it formed part of the Division Courts Act. Section 6, and subse- quent sections of the lleplevin Act, just mentioned, prescribe the procedure in such cases. Where l)y tliat statute any duty is prescribed to be performed by " the Sheriff," in Divi.sion Court proceedings, it may generally be re.ad as "</ic Bailif." For affidavits on which to issue writs of replevin, with or without Judge's order in ilrst instance, see Forms 13 and 14. No other cause of action can be joined witli it: Rule 41 ; Great Western, Railway Company v. Chadwick, 3 U. C. L. J. 20. iiut the questicn of title to Land does not oust jurisdiction in replevin : FonUunn. v. Akers, 4 B. & 8, 578. As to the findings of Judge and procedure generally, see Rules from 42 to 50 inclusive. As to tlie duties of the Bailiff", see Rules 46 to 50 inclusive. The plaintiff must make claim according to Form 15. Goods in the custody of any Sheriff, Bailiff or other officer, under process are not repleviable at the suit of the party against whom audi process issued : Rev. Stat. c. 53, s. 3. As to the right to maintain this action to goods in the custody of the law, see the cases mentioned at pages 3299 to 3302 of Ro'). & Jos. Digest. In replevin, a vcdict or judgment is divisible, so that the plaintiff may recover for whatever part of the goods he proves himself entitled to, and defendant for the rest : Hunt et al., 16 U. C. R. 521 ; Haijyart v. Kernahan, 17 U. C. R. 341 ; Henderson y. Sills, 8 C. P. 68 ; Canniffv. Bogart, 6 U. C. L. J. 59. As to the service of summtms in replevin, see Rules 47 and 48. Notice of action is not necessary, in replevin : Lewis v. Teale et al., 32 U. C R. 108. Whether there has been a taking or detention is a matter of defence at the trial : Gilchrist v. Conner, 11 U. C. R. 197. As a rule, the Court of Chancery will not interfere to restrain replevin proceedings, imless it can be shewn that complete security could not be got at law : Bletcher v. Burns, 9 Grant, 425. There may be more than cwo sureties in the bond, even where the statute says there should be two : Meyers v. Maybee, 10 U. C. R. 200. The 11th section of the Replevin Act does not prescribe the number of sureties ; but it is submitted that as a matter of security there should not be less than two. By this section and Rule 46, the bond is assignable, and the assignee may sue on it in his own name : Bacon v. Langfon, 9 C. P. 410. The bond need only be attested by one witness, but a subscribing witness is neces- sary to its validity : Heley et al. v. Cousins et al. 34 U. C. R. 63. Proof of the execution of a replevin bond is not within chapter 62, section 50, of the Rev. fc^tat. : see H. 0. L. P. Act, note (c) to aetion 2P2. The rule as to proof in such 8. 56.] REPLEVIN. 75 cases will be found in .Stei)hen on Ev., 2n<l Ed., Articles 67, 69, 70, 71, 88. If Biiiliflf wrongfully refuse to assign bond, an action would lie against him : Pnmud V. McEwan, ,31 U. 0. II. 328. The bond cannot be assigned while suit pending: licrbr ft al. v. Ball ft al., 18 U. (J. 11. 192. The bond is forfeited and assignable when the Court in which replevin suit was brought refused to try the case for want of jurisdiction : Weftih ft al. v. O'lirUn ft al., 28 U. (J. K. 40.5. Where the defendant succeeds on the pleas of von lifthift and not guilty, he is entitled to an .assignment of bond, and to maintain action for his costs of clefence : Afuli'onci/ y. IJopkinn et ai, 18 U. C. R. 174. Where the writ of replevin and subsetpient proceedings are set aside by Judge's order, the defendant has still a right to take the benefit of the bond : Mflorhf v Hfainnf ft al. S4 U. ('. 11. 606. If a ])laintitf in replevin prosecutes his suit without delay, there is no action on the bond (CaHHWfll ft al. v. Catton ft al., 9 U. C. K. 282) , but tlie inability of the plaintiff's Attorney in the replevin suit to communicate with his client does not prevent a forfeiture of the bond : Blftchfr v. B\trn, 24 IJ. V. 11. 124. It is no answer to an action on the bond, for not prosecuting the suit with effect and making return of the goods, to say that a return was made according to the condition, but that the plaintiff refused to accej)t the same. It oidy answers one breach: Goldlrifj v. lifllnap ft al. 2(5 IJ. C II. 163. Where a plaintiff succeeds only for part of the goods replevied, and a return is adjudged of the rest, he is liable upon the bond for not prosecuting tiie suit with effect as to the goods for which he f.ailed, and for not returning them : Paticr.-ion etal. V. Fuller ft al., 31 U. C R. .323. A set-off may be pleaded to an action by the assignee of a replevin bond: McKflrfi/ v. McLean et at., 34 U. C. R. (}3.'>. A (0, payment into Court : Thompson v. Kai/e ft al., 13 C. P. 2.'>1. As to the d nages recoverable, see Rule 44. The plaintiff may recover as damages the value of any of the property in defendant's hands at the time of issuing the writ to which the plaintiff proves his right, though not actually replevied : Lewis V. Teale et al., 32 U. C. R. 108 ; see alao Burn v. BMur, 14 0. P. 41.') ; Bli'frlier v. Burn, 24 U. C. R. i.W ; and Pattermn et al. v. FiiVer et at., 32 IJ. ('. R. 240. The actual damage is all plaintiff is entitled to recover on the bond: Helfji ft al. v. Ciuinln.H ft al., 34 U. C R. 63. Courts are averse to staying proceedings on replevin bonds, and prefer leaving tlie question of damage to be tried in the ordinary way : Hoover ft al. v. Zarltz, T. T. I k 2 Vic. ; Culham et nx. v. Loi:f et al., and Lore v. Culham ft al., .30 U. C. P. 410; Meyers et al. v. Baker, HargreareH v. Mei/ers et al., 26 U. C. R. 16 ; Melochev. Rpcmme et al, .34 U, C. R. 606 ; Johnmn et al, v. Parke et al, 12 C. P. 179. A release by plaintiff to one of several obligors in a replevin bond to a Bailiff, after an assignment by him to the plaintiff in replevin, wouM release all the sureties, and would also preclude him from suing the Bailiff for taking insuffi- cient sureties: Klrkendall v. Thomas, 7 U. C. R. 30. So a reference to arbi- tration of the replevin suit, without the .assent of the surety, will discharge him: Russell on Awfirds, 4th Ed., 83; Archer v. Hale, 4 Bing. 464; Huttv. (rilUdanu. Hue: v. Keith, 1 U, C. R. 540. But it is otherwise if the surety coiaei ■ /'», Enlarging time for making award does not discharge the sure- tic> . ./■'•'- V. Harper, 10 Bing. 118. A postponement of the trial of a rep'v \ .1 ...r. without the direct assent or concurrence of tlie sureties, discharges thi'.rc ; tl [H&stion being, not whether the sureties are injured by the delay, but s^h : \ 1;hey mvjht h.ave been : Cannif v. Bot/ert, li C. P. 474 ; Polak V. Everett, 1 Q. B. D. 669; Russell on Awards, 4th' Ed., 136. Nor will the attendance of the sureties at an arbitration imply consent to the reference : Burke v. Glover et al, 21 U. C. R. 294 ; see nistructive article on L.aw of Replevin, commencing at page 169 of 10 IT. C. L. J. Replevin can bemaintiiineil against a wrongdoer by one who has a bare possession : Gilmour et at. v. Buck, 24 C. P. 187; Meyerst'ein v. Barber et al, L. R. 2 C. P. 38, 661, and L R. 4 H. L. 317. The same evidence .as in trover of demand is necessary in replevin for same cause : Smalley v. Gallagher, 26 C. P. 531. The proceeding of certto- 3*^' ':■■ ..i.'C-'''.. r'.'"!-''-!" I ^.^v^;?■^4i.•a.:;^^•| 7G MINORS MAY SUE FOR WAGES. [ss. 57, 5R. ■ I h. ■'■^•■' ■ 4'V •• ■- 111*. ■'::"■' "n r-;- •i| ! ■• . ^'iHf '1(1 ^r'vic t ••^' ^" privilfigc shall be allowed to any person to ex - «;x(!iiiiitty.im empt him from suiuij and heinji sued in a Division Court : (e) of Court. and any executor or administrator may sue or be sued therein ; and the judgment and execution shall be such as in like cases would be given or issued in the Superior Courts. C. S. U. C. c. 19, s. 57. Minors iniiy proHOMllO ibr wagi!s. 58, A minor (/) may sue in a Division Court for any sum not exceeding one hundred dollars, due to him for wages, (j/) in the same manner as if he were of full age. C. S. U. C. c. 19, s. 58. rari does not .apply to replevin : Mmxjenn v. Whralhi/, Kx. 88. An informal replevin bond would be enforceable by the Bailiff as a voluntary bond, and he would stand as a trustee for the defendant : Stansfelil v. Hcllativll, 7 Ex. .373. As to an action against the Bailiff for taking an insufficient bond, see Fisher's Digest, '21 1)1). Tlie two sureties in a rejilevin bond are together liable only to the amount of the penalty in the bond and the costs of the suit on the bond : Hcffonl V. Alijcr, 1 Taunt. 218. In replevin for distress for rent, the sureties are only liable for the value of the gooils seized ; and if that value exceeds the amount of rent due, they will be only liable for the rent : Hunt v. Round, 2 Dowl. 558. (e) At one time certain classes were privileged from service of summons or arrest, and under certain circumstances, and to a certain extent, this is so yet in proceedings in the higher Courts, but this section abolishes any privilege in Division Courts. As examples of the law formerly, see Lysttr v. Boulton, 5 U. V: Iv. iSW'l, and Rci). v. Gamhle. a>d Boulton, 9 U. C. R. 540. No privilege could be claimed on contempt of Court: Henderson v. Dickson, 19 U. C. 11. 59'2; H3e also li('//(in v. McGreeri/, 5 V. li. 94. As to the privilege of Attorneys in England under a somewhat similar provision, see Jonan v. Brown, '2 Ex. .329, and cases cited. As to the right of a married womau to sue for her wages, see McCandy v. Tmr tt al., 24 C. P. 101. (/) That is a person under twenty-one years of age. [g) This does not restrict infants from suing in the Division Courts for any- thing but wages, but was intende<l only to enable them to recover for their own labour, contrary to the principles of the Common Law : Ferris v. Fox, 11 U. C. li. 612. An infant has six years to bring such action after attaining his majority : Taylor v. Parmll, 43 U. C. 11. 2.39. In suing for anytliing but wages, an infant must procure the attendance of a next friend at the office of the Clerk of the Court, at the time of entering the suit, who must undertake to be responsible for costs : Rule 126. The form of such undertaking will be found at No. 7 of the Forms. It is doubtful, if an infant can hire himself for wages to his parent, and whether the contract is binding on the latter : Pcrlet v. Perkt, 15 U. C. R. 165. The wages which a minor earns under a contract of hiring belong to himself, and not to his parents : Bidcudarnler v. Burton, 12 Grant, 569. As to the right and liability of infants generally, see cases in Rob. & Jos. Digest, 1722, et seq. ; Roscoe's N. P. Ev. 1,3th Ed. 634, et seq. ; Addison on Contracts, 7th Ed. 115, et seq. ; Law Reports Digest, 1452. The right of a servant to recover his wages, when recoverable on an entire contract of service and payable in an indivisible sum, depends on the complete performance of his terra of service. If hired, for instance, for a year, for .a lump sum as wages, and he leaves before his time has expired without just cause, he forfeits his wages: Huttman v. Boulnais, 2 8. 58 ] MASTER AND SEUVANT. C. & P. 510; Lillpj/v. Elwln, 11 Q. B. 742; Blake, v. Shaw, 10 U. C. R. 180. But if the sorvftufc has been paid any portion of such year's salary the employer is not entitled to recover it back, neither is he entitled to have it applied on account of nionciys payable in respei.-t of a previous year's ser- vice ; anil although the employer, on dismissing his servant, may have assigned one ground therefor, he is not j)reeluded from afterwards sliewing tiie entire grouTid for such dismissal : Tthh.i v. WU/cck, 23 (Jiant, 43i). Tlie rule that an indefinite hiring is to be taken as a yearly one ( lit'ttiii'jc.r v. MdcdoiKjall, 9 C. V. 485), is not a rule of law, but the jury are to say wiiat the terms of tlie hiring were, judging from the circumstances of the case ; thus, on an indelinitf hiring at certain weekly wa<jes, the jury may infer the hiring was weekly : Hdxtir V. Narne, 6 M. & (}. 935. So a hiring at "two guineas a week lor one year" is a weekly hiring (Rohcrti^on v. Jviiwr, 15 L. T. N. S. 514, per Bramwell, B.), or at " £2 a week and a house" (Eoaim v. Rof, L. R. 7 C P. 138), is a hiring by the week and not by the year. There is no indexible rule that an indelinite hiring of a clerk must be construed as a hiring by the year : Fnirnmn v. Oakford, 5 H. & iV. 635. In this case the plaintiff entered the defendant's em])loyment at a salary of £250 a year, which was paid weekly. The jury found it a weekly hiring and tlie Court refuriied to interfere : see also /t<tfhii/<:r v. Mdaloiujall, 9 C. P. 485. Should a person be hired for a year, his wages payable at the rate of HO much per month, it is submitted, on the authority of 'J'dt/lor v. Laird, I H. & N. 26f) ; Falrtiian v. Oakford, 5 H. & N. 035 and Button v. Thonipmri, \j. R. 4 C. P. .330. to be clearly established that each montli's wages would become vested at the end of each month and could not be divested by any mis- conduct of the servant, and that the nde aV»out foi-feiture of wages does not apply to such a case. The case of Walnh v. Walleij, L. U. 9 Q. B. 3()7, is clearly di-stinguishable from the others. Where a master, having a right to discharge liis servant for misconduct, condones the act and retains the servant, he cannot afterwards discharge him for the same act : PhlUipn v. Foxall, h. R. 7 Q. B. 080, per Blackburn, J. With regard to menial or domestic servants there is a common understanding, though the contract is for a year, that it may be dis solved by either party on giving a month's warning or a month's wages ; Beeston v. CoUijer, 4 Bing. 313, per (iaseleo, J. ; FawcHt v. Vanh, 5 B. & Ad. 908 ; Nowlan V. Ahlett, 2 C. M. & R. 54. If the master should, without just cause, turn the servant away without notice, the latter wouhl be entitled to recover a month's wages beyond the arrears : Jiobinnon v. Hindman, 3 Esp. 235. If a servant misconduct himself, the master may turn him away without any warning : ^pa'm V. Arnott, 2 Stark, 25(5. A refusal to obey a lawful order (as to remain at home at a certain time, or to do a proper da3''s harvest v/ork, &c. ), is a good ground of dismissal: s. c., and Lillei/ v. Elwln, 11 Q. B. 742. Audit matters not how reasonable or urgent the excuse for the servant's wilful absence may he : Turner v. Mason, 14 M. & W. 112. If a clerk claims to be a partner he can be forthwith dismissed : Amor v. Fearun, 9 A. & E. 548. So where a clerk disobeys a direction to apjdy remittances in a particular way {Sm'ith'v. Thompmn, 8 C. B. 44) ; or a traveller neglects immediately to remit sums collected in accord- ance with the terms of his engagement (Blencarn v. Hod(je,t' J)iitillerj/ Vompany, 16 L. T. N. S. 608) ; or sells his employer's goods to a brothel keeper {Ih.) ; or where a servant embezzles, though his wages due exceed what he has embezzled : Brown v. Croft, 1 Chitty's Practice of the Law, 82. Where a person is engaged by a firm, the death of one of the partners puts an end to the contract, and no action can be brought against survivors for not employing the plaintiff { Tasker V. Shepherd, 6 H. & N. 575) ; but a voluntary parting with the business is a breach of the contract to employ : Stirlinij v. Maitland, 5 B. t S. 840. It is different with a person pai<l by commission : Ex parte Afaclure, L. R. 5 Chan. 737. It is an implied condition on C(mtracts for personal service, that the death of either party shall dissolve the contract : Farrow v. Wilson, L. R. 4 C F. 744. Incapacity in a servant from illness arisuig after a contract for personal service, 'V'-.VH''^:'''"''!-*-*-.- : I 78 MtRINO AND 8KRV1CE. [s. 58. ! ,11! ^^'v, m--'- I •1 ^'l.';" ,„ , ■„■* ■inr.-:-'-- "■1:'''|K: "!(-,■ J. .If l"''^^^. ''-'■;i«i ■i "i. '■'"'"tilSf' ,a ■■''111 " ' .i.'i "• ■■■."■" ■"'."■ii ■■I ■«.■-, "#'*''l If" I 'W;- •,■■*]!'■< ■V ■ it ■ ".■■'K.i'' ■ .,., ■;.■'■.;;:!•'■■# ' ■ ■..!■',■,■- . ..iM .. itli ^•.■'.1 absolute in its terms, liaB been entered into, is an answer to an action for itn breacli : Jiwmt v. Fiith, L. II, 4 C. P. 1 ; /iolniimn v. Dai'imu, L. K. (» Ex. UUy. Incapacity of the servant from sickness docs not determine the contract, nor will it justify dismissal without regular notice : Hex v. Witdcr/tdf, Cald. 298. A person entered into service as a brewer for a term certain at weekly wages, and became disabled by illness for several months, but afterwards returned to work and M'as emjiloyetl by the defendant as before ; it was hcfd that the inability did not suspend the rigiit to wag .8 : Cuck'.son v. SIoiu'h, 1 E. & E. 248. But per- manent disability, such as paralysiis, &c., would have justified putting an end to the contract : s. c. Total inability *^^o ;>erform his duty will not prevent a servant from recovering wages for the time do actually served, where the agreement is not for any specific term : BiujUij v, uiinmcll, 1 M. & W. 60G. A saih)r, disabled in the course of his duty, is entitled to wages for the whole voyage : Chandler V. G'ricv;'*!, 2 H. Black. iiOO (note). Inability to perform his duty by an artificer, by reason of incomiteteiice or ignorance, will justify his dimissal, notwithstanding a contract for a term, where he was hired on the understanding that he had the requisite skill: llarmer V. Cornelius, 5 (J. B. N. S. 230; and the same case decides that there is an implied warranty that he possesses that skill. A dis- missed servant, if he can, ought to enter into another service : Hoc/inter v. JJi la Tour, 2 E. & B, 091. He is not entitled to his full salary for the unexpired period of the contract for service, but that is to be reduced by the probabilities of his having other employment during such service : Hnrtland v. The General Exchange Bank, 14 L. T. N. S. 803 ; Yelland's cam, L. R. 4 Eq. 350 ; see Broiujhton v. The Corporation of Brnntford, 19 C. P. 434 ; Jteg. v. The Poor Law' Board, L. li. Q. B. 785 ; tihirreff's caw, L. R. 14 Eq. 417. A new County (Council may, before recognition, dismiss officers appointed by previous council : Hickey v. Corporation of Jieiifrew, 20 C. P. 429. A clerk taken into an office at "three months on trial, at a salary of §800 per annum," hfUl, not a yearly hiring : Ifaghes v. The Canada Permanent Loan and Savine/s Societ;/, 39 U. C R. 221. Unless aspecific contract of hiring be proved, the Court will discountenance an action by child against parent for services rendered while living in parent's house : Si)rague et iix. v. J^fickemon, 1 U. C. R. 284 ; see also Wisiner v. Winmer, 23 U. C. II. 519. The plaintiff sued her brother for wages during several years that she had liyed with him on his farm keeping house for him while he was unmarried. Jleld, no evidence of implied promise to pay : Redmond v. Redmond, 27 U. C. 11. 220. But in an action by a .son againot his father for wages, the only evidence tending to establish the plaintiff's claim, beyond the fact that he had worked, was that of a witness who swore that six or seven years before, the father had asked him what wages he was getting, and said that plaintiff wanted $12 50, and that he would give him $12, it was held sufficient evidence to be submitted to a jury : Henrickn v. Henricks, 27 U. C. R. 447. The mere fact that one brother performs several years' work for another raises no pre- sumption of a pronuse to pay : Re Ritchie, Sewery v. Ritchie, 23 Grant, 66. In an action for wages of plaintiff's son as defendant's servant, it was proved that defendant had said he would give the son what was going ; that the son went to him at 12 years of age and worked for him four years, and that on his leaving, defendant told him to send his father and he would settle with him. HeM, evidence of an agreement : Pickering v. Ellis, 28 U. C. R. 187. Where services rendered by plaintiff" under expectation of marriage, but no contract of hiring, held that refusal to marry did not entitle plaintiff to maintain action for wages : Robinson v. Shistel, 23 C. P. 114. In order to justify the dismissal of a servant, the particular facts relied on must be shewn, and not mere suspicions : O'Neill €t al. v. Leight, 2 U. C. R. 204 ; Patterson v. Scott, 38 U. C. R. 645. A dismissed servant can sue for wrongful dismissal before his original term of service has expired. He can only sue for his wages after such expiration : McGuffin v. dayley, 2 U. C. R. 308. t' - * - 8. 59.] CAUSE OF ACTION NOT TO BE DIVIDED. 79 50i A cause of action shall not bo divided into two or f «"«"" "[ more Hiiit.'^ for the purpoHo of bringing the sanie within the Ij« iiiviae<». jurisdiction of a Division Court, [h) and no greiitor sum than one hundred dollars shall be recovered in any action for the (//) It has frofjucntly been found i\ difficult matter to s.ay what is " dividing a cause of action" witliin the meaning of tins section imd tlie eoriesiiouding sec- tion in the English Act of & 10 Vie. cap. yf), s. (i3. The expression "cause of action" in this scotictn, in general, means "cause of one action," and ia not limited to an action on one separate contract : (Jv'uiihlji v. Aiikrojid, 1 Ex. 479. In this case it was hid that where a tradesman hail a hill again.-/ a party for an amount within the jurisdiction of the C(mrt, in which bill tht items were so connected with each other that the dealing was not intended to to' ni'Tiate with one contract, but to be contimious, ao that one item, if not jtaid, s iiould be united with another, and form one continuous demand, that it was !>. contra- vention of the corresponding section of the English Act ; nor does the fact that one item in a tradesman's bill is separated from the rest by an interval of tteveral ynif'^ prevent the statute from operating; (Jopeman v. Hart, 14 (". B, N. S. 7.SI ; see also Inre Grme v. WaMi, 10 U. C. L. J. 0.'); s. c. .S I'. U. 1!>«. In Wkkham v. Lee,, 12 Q. B., at p. a'li), Erie, J., gives a test by which to determine whether or not a cause of action is being divided within the meaning of this section. He aays, "It is not a splitting of actions to bring distinct plaints where in a Suj)erior Court there would have been two counts. I am not sure whether the Court of Exchequer puts it so ; but that is clearly the true con- struction of the Act." In that case it was hdd lU) contravention of the section to bring separate actions for rent of premises, and also for df)uble value for over- holding after notice to quit. In Kimpton v. Willcj/, 9 C. B. 719, the facts were these : A. having a cause of action against Ji. for £19 0.-(. Sd. for nutuey lent between the years 184G and 1849, and also a cause of action against him on a separate account for goods sold and delivered, work and labour, and money paid, between the years 1845 ami 1849, amounting to £19 19.s'. 0^/., after deducting a payment on account of £8 5.'*. Hd., levied two plaints in respect of them in the County Court. Ileld, that this was not a splitting or dividing of " a cause of action" within the meaning of the section. Wilde, C. J., puts the case on the ground that there were different causes of action, and consequently not one entire debt, page 728. The case of Bonseij v. Wordaworth, 18 C. B. .325, fol- lows Grimhlii v. Aj/kroi/d, 1 Ex. 479, and Wood v. Pcrri/, ,3 Ex. 442, and decides that a tradesman's bill for a series of articles (even though the claim was con- tracted within the jurisdiction of different Courts), cainiot be split up into different causes of action. So in Brunskill v. Powell, 1 L. M. & P. 550, it was held that goods sold and delivered, and money lent, though entered in plaiutiflF's books as one account, were not one cause of action. In Nenle v. Ellh, 1 1). & L. 163, under a statute containing a clause very closely resembling this, it was held that a demand for a horse sold, another for rent due, and a third for gowls sold and delivered, were separate and distinct causes of action, and were not one cause of action ; and that a recovery for one was no bar to a recovery on either of the others. In Gilbert v. Gilbert, 4 L. J. N. S. 229, Logie, County J., held that diflferent sums of money paid by an endorser of two promissory notes were, as against the executrix of the maker, one cause of action ; ami that the plaintiff, having sued for and recovered one sum, could not bring another action for the amount of another payment made by him. Where plaintiff sued defend- ants on an alleged promise to return a yoke of oxen in as good condition as when hired, alleging that they were not so returned, but were injined, and it appeared on the trial that defendants had been before sued by plaintiff for the hire of same oxen, on the same contract of hiring, which resulted in a judg- ment for plaintiff, lieUl a splitting of the cause of action : Light v. Lyona et al. 7 80 BALANCE OF UNSETTLED ACCOUNT, •■ ,-,^','i 4' .. 1 ,■■• ''■*'■.., V! m! il ^. . ,. rf'-lh- ■■ ■;'V'li ..r .,. "<.* ' ■ m. .J; It [8. 59. balanc(! of an uiisottlod acrount, (i) nor hIihII any action for any such Italancc ho snHtiiincd wluu'o tlio unHottl(Ml account, ill tli(! wliolo exc(!0(l8 four hundred dollars. C S. U. C. c. 11), s. ;VJ ; ;{I) V. c. 1."), H. 2. IT. 0. L. J. 74, per Huyhca, ( Jo. J. In Mr/iur v. KoIhum rt ai, 20 ( '. P. I'.ir), it was /id<l tliiit ii j)liiiiitill' liiiil fi riylit to hrini; two actions, oiio for work ivml liilxuir, and tho otluM- tor ii haijunx- (hio for money paid by iiini for goods in oxcch.s of the amount fnriiisiit'il to liim. (n th tsos siipr<i of lAijIit v. /ji/oiim, vt id. and (lilhi'rt V. (Ullurl, it wa.s In hi that a deiondaiit has a riglit to say that tiiurc Wiw a Hj)Httini^ of tin; aotion on tlie trial of tlie socond action. In the case of Oran V. Wdlih, .S 1*. ii. l!lli. Draitcr, (!. J., exi)reH.scs a doubt wliotiior or not a prohi bition can lie movrd for as for a contravention of tliis ohaiiso, if not moved for to i)rohil)it the lirst suit. It is su))i»itted on tlie authority of Ailk'ni v. Friend, 38 Ii. T. N. S, ',\\)',\, tiiat proliibition should bo moved for in tlie iirst auit. As bearing on this question, see Whiiic' v. Sihhahl, ct al. U App. II. (ilO ; //* re liox V. (Jrccn, 9 lOx. HOM. On tho (piestion generally of fl[)litting causes of action. SCO pages y5 ami 'JS'i of 7 U. (J. L C. L. J. J., and at pages OCi, 9 1, and '231 of 8 IJ (i) As is well known, the amount of an unsettled account im(uirable into in Divisicm ('ourts was by 3!> Vic. cap. 15, section 2, increased from !?•_'()() to .^400. The cases decided before the change in the law must now bo read with the word " four" instead of " two" hundred dollars as the maxinuim amount of an unsettled account. Tlie plaintifl' sued defendant on a demand exceeding §200, but abandoned tho excess above $!U) 75. Defendant claimed a set-olf exceed- ing |4U0, consisting of various unconnected items. Jfi/.i/, within tho jurisdiction of the Division Court: /fend v. IVrdjic, 20 IJ. 0. R. 4r)(). Where the plaintiff claimed a balance of ,f-t!) on two notes of ;tl5 each and interest, gave credit tor £23 and abandoned the excess over £25, it was held tho Division Court had juris- diction : III ir Uliiii'iidiolliani v. Moore, 21 IJ. C. K. 32(J. An unsettled account exceeding 8200 (now $400), reiluced by jjayment to $100, is not \vithin tho juris- diction : WaiKjh V. Vonicaji, 4 L. J. M. S. 228, per Ijogie, County J. The plain- tiff in a Division ('ourt may recover $100, being tho balance of an unsettled account not exceeding §200 (now S4v)0) ; but when the whole account exceofls that sum, there is no jurisdiction. An unsettled account means an account the amount of which has not been adjusted, determined or admitted by some act of the parties. The i)laiiititt' here sued for §84, being the balance due for rent of premises occujtied l)y defendant, as his tenant, for several years, at .fUiOayear, after deducting tho payments made from time to time. Held, not within the jurisdiction : In re Hall v. (Jurtain, 28 U. C. 11. 533, overruling Miron v. McCabe, 4 1*. 11. 171. The plaintiff claimed §94 88, ainiexing to his summons particulars of his claim, shewing an account for goods for §384 23, reduced by credits to the sum sued for ; but nothing had been done by the parties to li(iuidatc the acc(mnt or ascertain the b.alance, except a small amount admitted to have been paid, and a credit of §33 given for some returned barrels, but which still leftau unsettled balance of upwards of §300. Jlcid, not within the jurisdiction : In re the Judge of Korthumherland and Durham, 19 C P. 299. The plaintiff, who was employed by tho defendants to purchase wool for them on commission, sued them in the Division Court for this commission, and for §10 paid to an assistant. It appeared that defendants had furnished the plaintiff with §1,100, and that the plaintiff had expended §3G beyond the sura in the purchase of the wool ; but no question was made at trial as to the due expenditure of §1,100 ; the only ques- tion being whether plaintiff was entitled to any commission at all, and no claiui was made for the §36 or any portion of it, the plaintiff's demand being confined to the commission claimed on the quantity of wool purchased, and not on the price paid. Ueldf not au action for balance of an unsettled account exceeding ss. (50, r.i.] CEUTIOUAUI. 81 <»0. A iufli'mout (k) of ii Division (\>urt uiioii a suit •'""•';";<\'|i ^' • .» .-« ^ y I to |„, lull linm^'ht for tlio balance of an account hIuiII 1)(> a InM dis- i)iH<iiiir«r, cliaruo of all (Icinands in rcHpcct of the account of which Hiich suit was f»tv the liitlancc, and the entry of judgnu'iit .sliiill be Hjado acc(>rdinj,dy. C o. U. (.'. c. ID, s. 00. (»|. Tn case the debt or damages (/) claimed in any suit (ri.mtMnmy liiought in a Division Court amounts to forty dollars and to superior 1 1 • • !• 1 T 1 1> 1 t'DIIlt llV Upwards, and in case it a|t,(('ars to any of tlie .Judges of tlio vnuom'ri Superior ( ourts of ('omiunii J^aw that tlie case is a fit one cisus. lo 1h' tried in one of the said Suj)erior fJoiirts, and in caso any Judge theniof grants leave for that purpose, such suit %'1W\ ; the balance of the iinaettled acconnt being ^'M\, which waa not in (piea- tiim : Mcliiii' V. lidhliiti, I't 111. '20 C V. 1H.">. Tliu iihiiiitiir, in a suit in a Division Ciiurt l)r()uj,'ht Ijufoio tliu jiassing of ;{!> Vit:. c.i]). 1"), sued for $'M, duu jw a l(iilance of an account for lioard for self and horse, wliicb ajjjiearod at the trial to 1)0 a balance of an unsettled account exceeding .§200. fie also sued for $H'2 for board for self and horse for a sid)se(|uent jteriotl, and abandoned the excess of Jill 'J over $100. On objection being taken to the jurisdiction of the Division Court, the Judge allowed an anieiulnient. The jtlaintilV then altered his (-laini, reducing it to the $S'2 only, and the case was again tried and judgment reserved, whereupon application was made for prohibition.. Jli/d, that the Division Court had no jurisdiction independently of the H!> Vic. cap. Ifi, s. 'J, which gives jurisdiction in unsettled accounts over .^+00 ; but that under that Act the claim (night have been investigated, as the subse(|uent j)rocejdings took place after it^l ])as»ing, and there was, therefore, no necessity for any anieiKlnient. A |iiiiintitf', to give a Division Coiu't jurisdiction where his claim is excess, must ■vliiiudon the excess in his claim, and cannot wait until the Imaring, and then ilo it.' in re McKcnzU' v. lijian, (5 P. 15. 3'i8. We find that the decision of the Chief Justice of the Queen's Bench, in SUiiidnk v. Wilxim, 8 1*. li., wjvs that there had been a sufficient abandonment of the excess, and that at any rate MrKcnzie v. Ihinii was distinguishable, as the amount there claimed was uu- iKluidated. A claim reduced by set-otFis not within this section : WooiIIkuiihw Xiwinan, 7 C. li. 054. It is the balance of an unsettled account : Jh. ; see Wah-shij v. G'oitf(fsloue, 2 L. J. N. S. 223 ; Flnnlmj v. Lirini/slone. P. II. 03. The cases of Stoplen v. Yonmj, 2 Ex. D. 324, and lilakt v. Applei/ard, 3 Ex. D. lit"), do not apply. [It is a pity there could not be some amendment of the statute by which the law could be the better defined on the many cases which arise, for at best the decided cases go only a short way in elucidating questions tliat arise almost every sitting.] (^•) The judgment must of course be between the same parties or privies: Mcintosh V. Jarviii tt al., 8 U. 0. R. 535; Stephen on Evidence, 00. In Wiiujer V. Siblnild et al., 2 App. Kep. 010, it was held that the commencement of a suit in a Division Court for part only of an entire claim, and endorsing an abandonment of the balance on the summons, is not jicr .^c a release of the excess; but the part so abandoned cannot be sued for after the recovery of judgment in such suit: see also Vinea v. Arnold, 8 C B. 032; Ndmn v. Couch, 15 C. B. N. S. 99; Flitters \. All/rei/, L. R. 10 C. P. 29; Adkln v. Fritnd, 38 L. T. N. S. 393; Fisher's Digest, 5023; Rob. & Jos. Digest, 1938. (I) See notes to section 54. ■1;i v;. 'V.J'.," Tr .,v ,, " '• ■■ ' 'J ' - J* , ' r' ■ ■ ■yi.'^ ■•>fi ■ ■ - . i«v. :••• -T-' • ■ ■] ' '.'' V. ;■"!'•••}■*,'*'• ','•'1 ,- '■ '■■',•: v'j. '> i.'.l ..--,V *i\r''' I '• . -i • ».-V"-i ■a- ' ■ *•■'".;--■ ■•■: '"if. 'r I v .-•.v'V'. ■/,*-•••. 'I ^r ■'■■!'. 't,r :^^:^; 82 RRMOVAL BY CKRTIORARI. [s. 61. may by writ of certiorari (vi) be removed from the Division Court into either of the said Superior Courts u]X)u sucli terms as to ijayment of costs or other terms as the Judge C. S. U. C. c. 19, s. 61. making the order thiuks fit. ()h) This is a discretionary writ (AV/. v. NnnhoroiKjh, L. R. 4 Q. B. 585 ; Bcff. V. The Jiixtircx of Slim;/, L. IL 5 Q. B. 4G(5; Mai/oCuiiufi/, In re, 14 Irish U. L. li. 81)2 Q. B. ) ; but is never tiiken away exce])t by express words : Scott, v. Biii', 2 Bing. 344 ; Riii. v. Vha.drdl, L. If. 10 Q. B. 587 ; Parker \. Brii^t.ol and Exker Raihc'ii/ Co., () Kx. 184. When a Judge has declined to grant a n'rttoniri, the Court will not do so merely because it appear? that possil)ly a serious cpiestion of law may arise, nor merely because the decision in the particular c:ise, though in- volving directly only a small sum, may be of great importance to the ai)plicant iis likely to affect other cases of a similar nature : Stapli'n v. Acr'nlcntal Death Insurance Cunipani/, 10 W. 11. 59 Ex, A Justice of the Peace sued in the Division Court, and having given ni>tice of his objection under sec. 53, sub-sec. 7, cannot afterwards move for certiorari : \ye.'<ton v. Sneijil, 1 H. & N. 7I>3, Interplead!, r proceedings cannot be removed : E.r parte Siun)ner.'<, 18 Jur. 522 ; Jonrx V. JIarri.-, G U. C. L. J. 15 ; Ji'u.s.-^ell v. iVil/iani-s, 8 U. C. L. J. 277. And it is submitted that under our statute it docs not apply to replevin : Miuajeau V. Wheatleij, () Ex. 88. We have no provision such as section 121 of the English A-?t, 9 & 10 Vic, cap. 1)5, for renu)ving actions of reiJcvin by certiorari. All the material facts relative to the state of the cause should be brouglit before the Judge, and where a writ has been obtained without the Judge having been informed that the cause had already been heard for several days in the County C<uirt, the writ was .set aside as imi)rovidently issued: Parker v. liriMul li.' Kieter Pailicaji Vnnipanij, Kx. 184. Certiorari will not lie after verdict (Tnllji v. Glunii, 3 0. S. 14!)), or after judgment and execution {Douglas v. ffntc'/tin.-<on, 5 0. IS. 3-11 ; McKenzie v. Ke.ne, 5 U. C. L. J. 225), or wdiere a defendant knows all the facts before a trial, luit, nevertheless, argues the case and obtains an opinion from the Judge, even though the Judge desire it: /lofnus V. Reeve, 5 P. K. i^^. The expression of a wrong opinion by a Judge is no cause forreuioval: lit. Certiorari is too late, if delivered to tiie Judge after verdict rendered ; and the spirit of the English statute, 43 Eliz. cap. 5, applies where plaintiff's witnesses were sworn and no jury called : Black v. Wesleii, 8 U. C. L. J. 277, per ilichards, J. If the Judge has entered (m the hearing of the cause, certiorari is too late : GnUaijher v. Batliie, 2 L. J. N. S. 73 ; Barnes v. Vo.v, 16 C. P. 23(); s. c, 2 L. J. N. S. 67. Certiorari will not lie at the instance of the plaintiff' to determine whether inferior Court had jurisdiction. The writ imports jurisdiction: Jfei/ira v. Baker, Ilanjreave.^ y. Mj/er.'i, 26 U. C. R. l(i ; O'Brien v. We!.t/i, 28 U. C. R. 394. A suit brought by an incorporated company will be removed where difficult questions of law are likely to arise : Ca'araipii Cemetenj Conipnni/ v. Bnrroii\'K, 3 U. C L. J. 47. Also where defendant resided ni a part of the Province far distant from the division in whicli the suit was commenced, and also on account of a difficult question of law . ymjeut v. Chainher.i, 3 IJ. C. L. J. 108. A plaintiff' is not entitled to remove his own suit : Prinlliuninie v. Lazure, 3 P. R. 355 ; Doini.toa v. Knax, 9 U, 0. L. J. 241. A Judge cannot be attached for disobeying n certiorari, unless be acted contumaciously in order to vex the party or shew contempt for the Court : Be Judije of Niaijara Diatrict Court, 3 0. S. 437. The order for certiorari may be made e.r parte {Si/niondft v. Dinisdale, 2 Ex. 533); but it is very unusual in this Province to tlo so. In the case of Ex parte Great Western Baihray Co., 2 H. & N. 557, the Court refused to make it a condition that defendant, if successful, should have no more than Inferior Court costs. Affidavit for order for M'rit of " 'rtiorari must be entitled in the Court /» which the ap/>ficationi.i to he made, and *iot in the Division Court (Ex parte Nokro, I B. & C. 267 ; Smyth et al. v. NkholU, s. 61.] CERTIORARI AND PROCEDENDO, 83 1 V. H. .S'}5) ; an<l if entitle<l in any cause, possilily cannot be read: //*. But see Hiuyn-drc" v, Ifai/''.", f) \]. & li. 272, from wliicli it would appear that the style «if cause would be surplusage : Jic BiirniWfx, 18 C. P. 493. If the writ has ini- jirojierly or iniprovidently issued, jirDCcdi-ndo is, i\ni vavcmAy [Ihxx. Wnkijiilil, I liiirr. 48!) ; Wimtki'i' v. PriiKjlt', 1 I*. 11. 357; and affidavits for rule or order for sucli should be entitled in the Court only in which they are to be used: Jainisoii V. Srlioii/'Wiir, 1 Dowl. 1T">; /i"';/. v. fJilhcnhikc, ;") Q. B. 207. The writ should be ;ii)plied for in first instance in (^liumoers [Stuplei^ v. Accidoital Death Inniiniin'i' i'viiijiiiiii/, 10 W. K. o!)), and must be tested on a day in term : Si/tiiomls v. iJtiiif- •liiti; 2 Mx. p. n'M). Application for the writ must bo m;tde liy the party himself, t-itlier in person or by attorney, and cannot be made by another person in his name: lict/. v. J(ia/f, 11 Irish C. L. 11. 280. A section in an Act taking away w/V/- iiniri does not apply to the case of a total absence i>i jiirifi'lirtion : Ex juirtf Brad- litidjli, 3 y. B. 1). r)05>. Tile return to the writ should l)e under seal : J{i'x v. Ki'iii/on, «; B. & ( '. 640. The original record must be returned : AKh'w v. /Ia>/toii, I Dowl. olO ; Palitt'i- V. For-fjitlt, 4 B. & C. 401. The Court will not direct how pro- ceedings are to be ...an'ied on after removal {('(tjipitii/ v. MrDnucll, 5 O. 8. 311), liut might direct that the amount of the plaintifl's claim be j)aid into Court: Siiinoiidf V. Dinisihilc, 2 Ex. p. 538. Where cases are removed from a Division Court of an outer County into one of the Sujierior Courts hy rcrtiorari, the papers should be filed in the Crown Office at Toronto ; but the venue need not be laid in the (."ountj^ of York : Chainhci-s v. Chamhir-t, 3 V. C. L. J. 20r), //'/• Draper, J. Where (v/Viora/'i reguhirly issued after new trial granted, a previous alleged understanding that the cause should be tried in the Division Court is no ground for interfering with the cciilorari : Help v. Liiai.s, 8 V. C. L. J. 184. After removal, there is no way o*^ compelling a plaintili to proceed in the higher Court: JJoNiison v. Kiio.r, 3 T. R. 150; 9 U. C. L. J. 241 ; f.'nrton v. Tin (Inat Wcfftrn lialhrdii Canqxttii/, 1 E. & E. 258. After removal, a plaintiff cannot declare fc' a different cause of action than that sued for in Court below : Miimii V. Monjiin, 3 P. 11. 325 ; JIindiT v , drand Trunk Jinilwtn/ Cohijnini/, (1 P. R. G7. Judge in t'ourt beh)W hos no right, after crrtiorari, to interfere with case until it goes back to his Court by procidendo : BttrwK <'t ttl. v. Vo.r, Hi C. P. 236 ; Eivhnj v. Thorn ]>wn, 8 U. C. L. J. 332. An order for nrtiumn, to bring up a case into a Superior Court, entitles defendant t(» full costs of that Coiu't if he succeeds in the action without any certificate from the .ludge who trios the cause: Corli'// v. Rohlin, 5 U. C. L. J. 225. A defendant will not, however, get the costs of I'emoval unless the order provides for them : Kerr v. Vormdl, I L. J. N. S. 326. The following is a general form of affiilavit for certio I, which can be adapted to meet the circumstances of an^^ case : In the Queen's Bench (or Common Pleas). 1. .1. B., of the of in the Ciunty of in the Province of Ontario make oath and say : 1 That on the day of last past, T was seived with a summons and particulars of claim thereto attached (or indorsed), in a suit entered in the Division Court for thi (said) county of in which suit is plaintiff, and A. B. in defendant. 2. That the annexed papers, marked respectively "A" and "B,"are true copies (or the copies) of the said summons and particulars of claim so served oi\ me. 3. That I am thi^ said A. B. mentioned .and described as the defendant in the s lid suit in the said Division Court, and in the said summons so served on me .IS aforesaiil. 4. That this action is brought against me for the purpose of recovering the Slim of dollars for (here wl out partkalarlii the caune of action aacd for ; ij the particular s of clo':>n attached to or inioraed on tfie sunimona do not do so.) -/ 'i *••-..•• •'•'•■ •*■• Mm. ' : l"l 'If '".ir ■'■'■■■ ■;■ - I r'' ■■■.•■•;:■ ■■■ ■■" ;t ■ ■ ■ „> .3:-« . ■ i . . -iif « ., ■„■ ' ^ I'i » .1 ,;.,:. ,'K.|i|; .,•1. *L! ■' m:"'} |:1' ■j't ■•■ -..-n- ' 1 '3' ■ ,.■ * . II- .; ;. \';.---'r:-!l", I" *tl '■I I- ■'' , ^ ■ M': 84 WHERE SUITS TO BE ENTERED. [s. r>2. PROCESS AND PROCEDURE. Division in which Suits to be Entered. fnwhat ^^, Any suit cosjnizable in a Division Court may be Courts suits , . , . 1 Tx- • • • may be entered and tried in the Court liolden for the Division in and tried, which the cause of action arose, (n) or in which the defend- 5. That I am advised, and verily believe, that several difficult questions of law are likely to arise on the hearing of the said cause, and amoug others the following (/(ere .state d'iMinctly and full ij the <iuedion.s of law likelij to arise; also state in the aifidauit all facts tending to show that such t/nestions are likebj to arise). G. That 1 have been advised, and verily believe, that I have a good defence to the said action so brought against me on the merits. 7. That the ajjplication for writ of certiorari to be ma<le herein, is not made for the purpose of delaying the fair or speedy tri.il of the said action, or in any way to prejudice or delay the said in the prosecution of any cause of action he may liave against me in any suit, nor in the recovery of any sum of money he may be found entitled to in the said suit ; that the said application will be made hona fide, and for the sole purpose of the better determining my liability on the said alleged cause of action, and with no other object or purpose whatsoever. Sworn, &c. The manner of making a return to the certiorari is as follows. Inscribe the following on the back of the certiorari : " In the Queen's Bench (or Common Pleas). ' ' The answer of me,' A. B., Judge of the County Court of the County of who, by virtue of this writ, to me directed and delivered, do, under my hand and seal, certify unto Her Majesty, in Her Court of Queen's Bench (or Common Pleas) for Ontario, at Toronto, the [here describe lohat the writ calls for), of which mention is made in the same writ. The return of this writ appears by a certain schedule annexed thereto. "In witness whereof, I, the said A. B., have to this affixed my hand and seal, this day of 18 "A.B." [L.s] The following schedule will be annexed to the certiorari : "Schedule. Referred to in the return to the annexed writ of certiorari indorsed thereon. (Here (jive in rej/ular order the papers in the suit returned with the certiorari, and annex live oriyinal jHipers to the schedule.) A. B. Judge of the County Court of the County of ." (n) There have been many decisions on the meaning of the words "cause of action." These words in this section were taken from the English County Court Act of 9 & 10 Vic. cap. 95, s. 60. and the decisions upon their meaning there have a direct application here. They mean "the whole cause of action : " Noxon et al. v. Holmes, 24 C. P. 541, and the cases there referred to. Where a debt matures after the death of the intestate, the grant of letters of adminis tration is part of the cause of action : Fuller v. Mackay, 2 E. & B. 572. The plaintiffs, carrying on business at Manchester, sold goods by their traveller to defendants in Oxford, which goods were sent by plaintiffs to the railway station at Manchester for shipment to the defendants. It was h'.ld that the "whole cause of action" did not arise at Manchester: Borthwick v. Walton, 15 C. B. 501 J Bee also Gold v. Turner, L. R. 10 C. P. 149. The defendant resided at M , 62.] WHERE CAUSE OF ACTION AROSE. 85 in the County of Hereford. An association, of which he was a member, offered .1 reward for the apprehension, and prosecution to conviction, of persons com- iiiittiug certain offences, and the plaintiff, within a district of the County Court /pf (r., apprehended an olFcnder, who was tried and couvicted witliin a district <if tiie County Court of H. Nild, that the County Court of G. had no juris- «lictiou to entertain a phiint for the recovery of the reward : J/eninman v. Sniilh, 10 Ex. G59, In this case Parke, B., remarked, "the terra cause of action Mieans all those f/iinifs necessary to give a right of action." A hill of exchange vas drawn and accepted, and the endorser put his name on it within the City ■ if London, but it was delivered to the endorsee in the County of Middlesex. It was li'Cld that the cause of action did not arise in London (Biirkli'ij v. JIaini, r» Ex. 43), the endorsement not being complete until delivery (Marnton v. Affeii, 8 M. & W. 494), and a material part of the cause of action : Ileafh v. Lo>i(f, 1 L. M. & P. 333. On a contract for the carriage of timber by a barge from a wharf at 8windon to London, it was hfld that the contract was not complete Mil Ml the delivery of the timber in London, and that the Ci^unty Court at Swindon hill] no jurisdiction : Barnet v. Marnhall, 18 Q. B. 785, AVhere goctds were ordered at Leeds, deliverable at Manchester, the County Court at heeds was held U* have no jurisdiction to try the case : Jarkyon v. Bi'diniiont, 11 Ex. 300 ; 24 L. J. Ex. 391, s. c. The plaintiff went to tlie defendant's residence, which was beyond the jurisdiction of a particular County Court, and there agreed to jiurchase a horse for £18, to be delivered the next day at the plaintiff's residence, which M'as within the jurisdiction of that County Court. The defendant bnmght the liorse to the plaintiff's residence, where he required and obtained a \varrauty. Held, that the whole cause of action arose the second day when die warranty was given, and not until then ; and that the suit brought for breach of warranty was withi" the jurisdiction of plaintiff's County Court : Ariiv. Orchard, OH. & N. 160. The plaintiff, within tlie jurisiliction of a i'ouuty Court, made a contract with a broker who professed to act for the <le- feiidaut, in these terms, "Sold the cargo of corn per T., now at Q., at 27 shillings per quarter, including cost, freight and insurance, to a safe port in the United Kingdom. Payment, cash in exchange for shipping documents and policy of jiisurance." Q. was out of the jurisdiction, so was the ship, also the port to which she was desired to be sent. /i(d(l, that the non-delivery of the cargo was a breach of contract and a cause of action, but out of the jurisdiction of the il'ounty Court : In re WaUh, 1 E. & B. 383. One Patterson sued Graham, the plaintiff, who lived in the County of Grenville, for the price of a reaper, in a Division Court in the County of Hastings. At the trial no defence was otfere<l, ;iud Patterson's witness swore that the machine had been ordered by (Jrahani in Hastings. The Judge entered judgment for Patterson. Held, in an action of tres])ass against the Judge, Clerk, executicm creditor, tc. , that the Jiulge who tried the tresjtass action rightly declined to hear further evidence as to where the cause of action arose ; that the Judge of the Divisiim Court could »»nly be guided by what appeared before him, ami that he rightly decided on the eviilcnce given, that the cause of action arose within his jurisdiction : (Jmkam V. ,'^inart et at., 18 U. C. H. 482< Defendants, residing at (ioderich, made a t-mtract at Bnint/ord to deliver goods at the railway station at (joderich. I'laintifl" brought acti(m for the bad quality of the goods at Brantford. Held, icliat the cause of action was not the contract only, but the contract and the breach ; and that .as (»ne arose in Brantford and tlie other in Coderich, the plaintiff must avail himself of the other alternative of this scctioji, and sue where the defendants resided: Waft v. Vaiwrer}! el at., 23 IT. CX K, 19(» ; Kemp v, Owen, 14 C. P. 432, and Carnleif v. Fixken et al., 4 P. R. 2.")"), are to the same effect. The defendant, residing and carrying on V)U5ine8s in London, wrote to plaintiffs, residing and carrying on business in S., ordering them to do certain work for him. The letter was received, and the work was done in S, lu aa action in the County Court of S., it was held that the whole cause uf -„♦ '■:-^--Tjt *■■i:i■'^■'''■ :f V ,.rf.'.v-;;V,'. .' V if :. » -J. I-., rt !►'■•■: . '■ ' •■. ■■.'•» Kf, .•■..*>■.<■'■ ,j _ rw ■*'■ ; , «, 'if I " ' ;■':: ■■■ ■■.:,!'";'> " '''. ■ )!•''' I •^ ■ ''iiJii"'* ►■'If*''- ■(* ■!f'ii^s',;.ii!-i! - *'i! ::ife;'- ,..,r ,|f.i J ': ,. -.:K i »'■ i*'.f3' '■■ [■It i :*.' . : ■*^, ■•• . .. ■■ ■< 1 .1 'I ' ■ \ . ■■ r ■ ■ ■ d"^i$ 86 WHERE CAUSE OF ACTION AROSE. [s. G2. ant or any one of several defendants resides or canies on business (o) at tlie time tlie action is bronjfht, notwltli- standin<f that the defendant at such time resides in a C'ounty or Division different from the one in which the cause of action arose. C. S. U. C. c. 19, s. 71. action arose within tlie district of S. and that tlie Connty Court there hii<l jui'isdietion : Xctrcomh ct nl. v. Dcliuwi, 2 E. & E. '271. ( '(x.-khnrn, C. J., says. "The re(iuest of the defendant was made in London by letter ; bnt it was not such a request iis cifjated a contract until it was i-ecei\'ed and accepted by the plaintiffs, ami that took place at Stanifonl, where also the work was done. Tlie whole cause of action therefore, both the work and contract under which it wr.s performed, arose at Stamford." Hill, J., says, "Supi>ose the two parties stood on different siiles of the boundary line (»f the district, and that the order \vas then verbally given and accepted, the contract would be made in the district in which the order was accepted :" page 275. The principle of this case ai)i)ears to be that, from the moment the letter was sent until it reached the plaintiffs' hantls, there was a reiteration of the re({uest to do the work, and that as it reached the hands of the ijhiintiffs In S'fdiiifunl, the order was takert to have been made as ^^^ell as accepted there : see also (Ircen v. Ihach, L. 11. S Ex. 208. The [>laintift', residing at N., drew a bill of exchangTi njion the defend- ant, who resiiled at L. The defendant accepted the bill at L., and returned it to the jilainti tt' fit N. Ft was hcJd that the County Court at N. liad no furis- dicticm : Wihlc v. l^hcrhlan, 1 B. C. C. oG ; 21 L. .1. (J. B. 260 ; see editorial on this subject at page M of 10 U. C. L. J. ; licHmfi v. Ratclifp, m L. T. N. S. 833; O'DonofiKr v. Wiinf rf al., 4;{ U. C. R. SoO. Where the evidence of tin- delivery of goods as part of the cause of action is doubtful, they will be presumed to have been delivered at defendant's residence : Anult v. PorUi; 30 L. J. Ex. lit. The retainer of an attorney in one division to draw a mortgage and its execution in another would shew <a cause of action an'sing j/artly in each di\i- sion : Jnch-^ni v. (trimftji, 1(> C B. N. S. 380. Where an action i.s brrmght in. Dixasion Court, in a tHmnty in which defendant does not resi<le, nor the cause of action arose, the defendant is entitled to jirohibition ; but if the cause pro- ceeds to judgment, with his an/iiicsrf'i/cp, he Iraes his right : Jfafxiii^on v. Caini- irt'ff, 7 P. R. 2!)7, I'cr Hagarty, C. .). " Parties ought not to lie l)y and defeiuf ini the merits, and after judgment disclose the facts which liar the right t>f the Court below and ask our intor^'ention : " Arclnhdld v. Buxheif et at., 71*. K. 304 ; see also I{< Smart and iriMUn, 7 P. It. 304. {<)) These words are partly taken from the same section of the English statute as are the wctrds refei-red to in the preWous note. Where a i-ailway company' had their principal office in Jjondon for the regulation and guidance of their undertaking in the \arious ])laces through which tlieir i-ailwny passed, and a station at A., ftctil, that they carried on business in liOndon, and not at A.: ShicliLf V. The ar<at yfortJnni Jfaihmji Co., 30 L. J. Q. B. ;«l ; 7 Jur. N. S. 631 ; and 8 l^. C. L. J. IIKI. A corporatitm has been held to "dwell" where its business is carried on : Tai/for v. IVic Crnwhwd Oaa and Coke Compamj, 1 1 Ex. I. The (ireat Western Railway Co. has its principal station at Paddington. where the directors meet, the secretary resides, and general met^tings are hehl. and whence onlers emanate. Ifild, that the company "dwells " at Paddington, within the meaning of n & 10 Vic. cap 9,"), s. 128: Adanmv. Tlie O. If. A*. Co.. 6 H. & N. 41)4. See tlie difference between a person's ir.sldfnrc and place nf business: Rnj. v. Hammond, 17 Q. B. 772. In liurkli-ifv. Ifann, 5 Ex. 43, it was hi'ld that where the defendant, a clerk in the Admirality, lived in Green- wich, but attended daily at his office in London, he did not "carry on his business " iu London. It was held^ in Brown v. L. it-. X. W. R. Co., 4 B. & S s. G2.] RESIDES OR CARRIES ON BUSINESS, 87 320, that a railway corporation "dwells" at the place it carries on its business, thnt is, its unirral business, and not where the}' carry on a part, (n- even a material part of their business. A person who has no [lernianent place of abode "dwells" at the place at which lie may be temporarily residing: Afixiiniii'V V. Jitnrt, \t. R. 1 Kx. 133. The domicile of the husband is that of the wife: Maaloimlil v. Mnc({i»i(il<l, 5 U. ('. L. J. (i(). S/icti v. l^iiifi'il A^xnnnin' (Ji)., L. 11. 3 C. P. 21, was under a very ditfcrently worded section to this. Defendant worked in the Province of Quebec, but his wife and family lived across the river, in Ontario, where his wife kept a stoi-e, and where he often c:i!ue to see her. fftltl, tliat the defendant's residence was witii his family, ami that h(! was subject to be sued in the proper Division Court in Ontario: /;/ tr /jiidoiici'iir V. Suiter, (> P. 1!. 30"). \n Aliri'ini v. MrGil/iijaf, The (Irdinl Trunk Jinihrrt;/ Companij, (hirnisliit'x, 'J3 (\ P. 171, it was hild, on tiie construction of 32 Vic. cap. 23, s. 7 (now sectifui 133 of the present Division Courts Act), tiiat a railway company did not "live and carry on business" at any other 2dace than its head office, .at which its business was managed ; f(dlowed in If* ^/o/v-/- v. Tiiriwr, Ortviil Trunk RdllirKi/ CoiiipiiDi/, Gtirni.'ihcc-i, 2(5 C. P. 510, in which case it was also held tliat the fact of the railway c(unpany having, in adilition to its local station, a factory for the making and repair of tiie rolling stock used on the road, and employing a nuudjer of workmen therein, did not bring such place within the statiite. See also, T/w Ohlhimi liiilldinii (vul MiinufacUtriiKj Cinupniiji fj/uiii/i'il ) V. Henid, 3 H. it. 0. 132. The words " carries on business " were said by Coleridge, J., in Itolfc \. /.carniotifli, 14 Q. B. 1<)!), to mean " s( me lixed place at which the party's business is carried on, at least for a certain time." A clerk to the Privy Council was held not a perso?i "wlio carried on his business" at tiie Privy C(uincil : SdiKj'ftfr v. Kdij, 'i Kx. 3iS6. Where a man, having his permanent residence at one place, has ahxlgiug for a temporary purpose only at another place, Ac/f/, that he does not " (IweU" at the latter ])laue : MnrdounaU v. Pntcr.fO}), 11 C. B. liM. In the argument and from the remarks of Maule, J., at page 7<)3 of the report of titis case, it ajipears to have liecn taken for granted that a " residence " and " dwelling " were synonymous teriua. The same view was taken by Cockliurn, C. J., in linflcr v. Ahh-irli'ifi-, <I (X B. N. 8., 747. A temporary or a compulsory residence at tlie time of the commencement of an action in a gaol does not constitute the iilaee of detention the dwelling of the party : Diiuttoii v. Pdtfrson, ^^ C. B. N. S. 2(57. 'I'iie "residence " must be of a pcrni'iiK-nf. character, and not merely for a tiiii- pjntrji purpose: Murxh v. Cov'iin'.if, 17 C. B. N. S. 418. A man may have two pr'rm<ini')it. placcx of residence (linthr v. Ah/cirhifi', (> C. B. N. 8. 740), and the question of jurisdicti(m must depend on the fact " where his actual residence at the time of actiim brought was:" per Cockburn, C. •)., page 747 ; Pi'jriiii v. Knntrhlinll, 18 C. B. N. S. 708. A plaintiff, having hireil a house at Margate, o;;cupied it with his wife, family ami servants, as their home ; at the saine time the plaintiff, carrying on business in London, occuiued two houses there for the purjiDse of his business, and passed three or four days and niglits of each vreek there, occupying two rooms in one of the houses, which ha '. i>een fitted up for his residence while staying in London, /{ild, that he "dwelt" at Margate alone: Kerr v. Ha;/m's, 29 L. J. Q B. 70; 2 L. T. N. 8. 211. Most of the preceding cases are on the (|uesti(m of "residence" or "dwelling" of a jdaintiff; but Erie, C. J., says, in P!;irim v.Knnfr/dtiiH, 18 C. B. N. S., at page 804, that as regards a defendant Mie same principle applies. A surgeon and apot lecnrv has been held to "carry on business" where he daily attends patients, although resident cnit of it: Mitrlip/I v. Hoidrr, 18 Jur. 4.30 ; 23 L. J. Q. B. 273 A railway ctunpany does not "carry cm business" at a receiving house or a booking ollice, kept by an agent for the receipts an<l booking of packages for .all the railways generally : Minor v. L. <{• N. W. lia'dwaji Company, 1 C. B. N. 8. ,325. By the appointment of a gener.al agent to do business in a place, a corporation gaunot be held to be carrying on business there : Corbett v. T/ic General Stemn .;, ♦ -■..):,.-,-'vt-''v ■•• . I ''.,■■ -r* ■%•. .' ,:•!'•:•■■» •' * ■'.'>" 4^ • ,•*/ •% I .■ !■ ■ S. " ■ *. I *■ >-'\'jt^^ ^^■^■* T-'r*-'" ..J ./:.'.SiM\.V. V'!;., . -<i;.',!'/.V<l»!£.'-" 1 '.' / • . ■ 88 NEAREST TO DEFENDANTS RESIDENCE. [s. (i;5. Suits mny lii^ tiniUL'lit •*! !' - ...r- ■••' '■" lit l«r •■':;■,■ J- - ■*■",, ;.; .," . "ii." "<S«'i J ■ >. vHit ;;v;;;| 1.. ■ . i'-i.»r ■;■■ ■'■■'n " ,ll , :;VA' '■■■:>'' ■4 I . ^<«' ' '-'r *'v- .... ^ j;,.^ . 'II - . '••»"l(( ■ - .1 ' '. t ' •' ■;# .■ t_.. -^ ' . i' ' . •iU^' " mi '.' .r- ,1* ' 4 ''■Vi ;' ' It' v'a! IK "^"il t nciircst ti tlu' (luft'iiil i.nt's resi- ilrlU'i". 03, Any such suit may l)e eutereil and tried and deter- iii.i tiic.i in niine* in tlie Court tlie place of sitling wliei-eof is the nearest to the residence (^p) of the defemhint, and such suit may be entered, tried and detei'mined irrespective of tlie place where the cause of action arose, and notwithstanding^ that the defendant at such time resides in a County or Division othei than the Coui»ty or Division in which such Division Court is situate, and such suit entered. 27-8 V. c. 27, s. 1. Service of 2. It shall be sufficient if the summons in such case l)i' sumnioiis in «uuh cases, served by a Btiiliff of the Court {q) out of which it issues, in the manner provided in the seventieth section of this Act ; and upon judgment recovered in any such suit a writ oi fieri facias against the goods and chattels of the defendant, and all other writs, process and proceetlings to enfoix;e the pay i:-V XavUjatlon Companif, 4 H. & N. 482. A company incorporated for the mfvnii- facture and sale of goods " dwells " at the place of manufacture anil sale, and not at its registered office { K^'i/n-iltaui li/iic Lias Lime Cmnpanij v. Baker, 2 H. & C. 7-9) ; distinguishing this case from that of a railway comjjany. A joint stock company "dwells" where the substantial business of the comi»any and its negotiations are carried on, anil not necessarily in the locality where its property is situated and its immediate objects carrioil on: AhfnjKtw'ilh l^romenadc Pier Company v. Cooper, 13 L. T. N. S. 273. Cockburn, C. J., says the company " cannot l>e said to dwell at the pier at Aberystwith." {p) By Rule r», the plaintiff must in his claim set out that he enters the suit and desires to have it tried because the pliice of sitting is nearest to tlie defend- ant's residence. In determining the distance, the measurement must be made in a straight line from one point to the other on the horizontal jilane : Leigh v. J find, «) B. & C. 774 ; L,d-e v. Butler, 3 E. & B. 92 ; Jewel v. Stead, 6 E. "& B. 350 ; DnUjnai v. Walbr, Ti Jur. N. S. 976 ; 28 L. J. Ch^n. 867. The distance should 1x3 measured "as the croAv tliea :" Afoujtet v. Cole, L. 11. 7 Ex. 70; in Ex. Cham. L. R. 8 Ex. 32 ; Maxwell on Statutes, 173. As to the meaning of the word "residence," see notes to sections 27 and 62. This makes the resi- dence of dcfencbant the sole test of jurisdiction. It is submitted that " placi- of sitting " means the actual building in Avhich the Court is held, and not the mere municipality. There is a section of the Mutual Insurance Companies Act which is proper to insert here, ('hapter 161, s. 71, of the Revised Statutes is as follows : "Any suit cognizable in a Division (^ourt, upon or for any premiun\ note or undertaking, or any sum assessed or to be assessed thereon, may be en- tered and tried and determined in the Court for the division wherein the head office or any agency of such company is situate." It has been held that this section does not apply to the suing of a premium note taken under the 46th section of that Act for the cash payment on the insurance : Tlu> Canada Far- mer'-H Afutuiil Inauranre Company v. Welsh, decidetl in 1876 (not reported), per Hagarty, C. J, P' '.ir.issory notes to mutual insurance companies or their V- Arthur V. Smith, etal, 1 App. R. 276. !" papers, see the notes to section 70. If a defendant :, 1- J waives any irregularity as to the manner of service : offioers ar( (7l^ gives nt . Tiiton V. '■ 'hij i'lCVV ■ ' li ' : 'H "' -. > ,' .;•'■■ ,■•■ . ki^.'.itliilffli,:' ■::!,-i' SS. G4, 65.] WHERE CLERKS MAY SUE AND BE SUED. 89 mont of the said judgment, may be issued to the BailifF of tlid Court, iuid be executed ami enforced by him in th(j Execution. County in which the defendant resides, as well as in the County in wliich the judgment was recovered. 27-8 V. c. 27, s. 2. 04. In case any person desires to l>ring an action in a When suits Division other than as in the two next preceding sections hrcuiriit in mentioned, any County Judge (?•) may by special order au- tht; icgu'iai thorize a suit to be entered and tried in the Court of any Division in his County adjacent to the division in which the (lefcndaut or one of several defendants resides, (s) whether such defendant resides in the County of the Judge granting tlie order or in an adjoining County. C. S. U. C. c. 19, s. 72 05. Every Clerk or Bailiff may sue and be sued for any OIpiI^h and 111 11- 1 Hailitls iniiv del )t due to or by luni, as tlie case may be, separately or sue. and t)f ,.,,., ,, • ii /~i 1 /. 1 sned in iid- jointly with any otlier person in the Court ot any next ad- joinin),' ', . . ■ -1^. . . . , ^ i. • i.1 Divisions, joining Division in the same County, iii the same manner, to all intents and purposes, as if the cause of action had arisen within such next adjoining Division, or th(! defendant was resident therein, and no Clerk or Bailiff shall bring any suit in the Division Court of which he is such Clerk or Bailiff, (t) a S. U. C. c. 19, s. 83. (*•) The order must be grunted "by the Judge before whom the action is to be tried under the order ;" Kule 123. Formerly this was differeiit ; J/c Whii-tcr V. Iion(janl, 14 U. C. R. 84. As to the mode of procedure to ol>tain the order, see Ivule 1(>, and Forms 8 and 9. " No leave shall be given to l)ring a suit in a division, other than the one ndjnccnf to the <Uvision in which the party to he Hued resides, but the division may be in the same or an adjoining (.ounty :" Rule 123. The word "a<ljacent" here means, it is snbmitto'l, " contiguous or bordering ujiou :" see KluqsmUl v. Mllhird, 11 Ex. 313 ; Earl of LlMiurne v. J)arie^, L. II. 1 O. P. 259, and^^^'r Erie, C. J., at page 2G4. {n) See notes to sections 02 and 72. (/) It would be highly improper for ollicers of the Court to have control of suits against themselves agamst the will of a plaintiff, and to be allowed to sue in their own Court. For a cause of action in the shape of "any debt " against a Clerk or Bailiff, the plaintiff has his option of suing in his own division or ill one "next adjoining (that is, no other division intervening.) The prohi- bition as to a Clerk or Bailiff bringing in his own division "any suit" is oimj- ])lete. In other words a Clerk or Bailiff can be sued for a "debt" in his own division, but he cannot himself sue for unything there : 4 U. (J. J,. J. 157 ; 9 IJ, C. L. «T, 99 ; I L. C. G. 54. In au excellent article on this subject in the latter volume, these words are used, which we entirely endorse : "The right here given is permisKlvc, whilst the language prohibiting officers from suing in tlieir own division is im^tratioe \' page 54. For any other cause of action out x^UA-,'".'..,.-'- ♦•.• '■■ ;-v ;♦';;• V'^' ■•■•.••■ ■K^vM-i-.^^'^-' -J .■■■ ;..>.";••■•-.?-*. '-' '•■■•■V.".-.*''-lV<-r .'!••' ■ 1 >| 'i^'Vt^iV";;- -;■*;;■;• ■■.J 1 .1 90 CLERK TO FORWARD SUMMONSES. [ss. OG-68. li'i' 1 ■ 'V ,i!.;''''-"Hi ,,"-r|.*..„- ■ : ' A<-tions |»|» ^j^y fjni^ Qj, action, by or uyaiust a Jiulge or Junior o.uiiiy Ju(l''e of a (!ounty Court, which is within tlie conii)etenco stiiiiiiiiiiiry of H J^ivision Court, may be lu-out'lit in a Division Court of Mii^ist rates . for aiiiomits any Couuty adjoininff (ti) tliat in wliich such Judm; or Ju nior Jiulgo rosi(bs ; and any suit or action by or against any Stijiondiary Magistrate, if the same is within the jurisdic tion of any Division Court of his District, may be brouglit in any Division Court of any adjoining County or District. 40 V. c. 8, s. 14. See also lieo. Stat. c. 90, s. 45. sioii Cour* .Juri.sdiction Clerk to forward 01. The Clerk of any Division Coin-t sliall, wlien rc- smiiiiioiisc's nuireil, forward all sununonses to the Clerk of any other for service ' . . . ill otiifir Division Court for service, and the Clerk of any Division Divisions. /■< 1 II . 1 • , Court shall receive (v) any sununonses sent to him by any other Division Court Clerk for service, and he shall hand the same to the Bailiff for service, and when returned, shall receive the same from the Bailiff and return them to the Clerk (w) from whom he received them, and every Clerk shall enter all such proceedings in a book to be by him kept for that ])urpose. C. S. U. C. c. 19, s. 73. li ' n II ■ ,..''"' .. 'm-% '*. -;,■ . ■■ ■::% Entry of Claim, Service, &c. Plaintiff tn 08. The plaintiff .shall enter with the Clerk a copy (and, .■liter coi.y . ■ \ c 1 ■ xl- i i- of iiis <iaiin it uecessary, copies) ot ins account, claim or denumd in writing in detail (and in cases of tort, particulars of his de- mand), (a;) and each such copy shall be numbered according a "debt" must U(it a Clerk or BaiUff sue iu a higlier Court, if cause of action arose and defendant resides in his (Uvision? He cannot sue in lii.« own divi- sion for anything whatever, and he can only sue in " the next adjoining divi- sion " where it is for a "debt" <Uie him : see 2 L. C. G. 142, («) It is submitted the word " adjoining" here means "contigucms," or"meet- in^' so as to touch :" see notes to section 04. Tliis is comparatively a new pro -ision to prevent the necessity of a Judge suing or being sued in a higlier Court. Should such now be done, costs on the higher scale would probably he withheld. (r) He may, under sections 49, .50, and ol, insist on prepayment of his own and Bailiff's fees : see notes to these sections. (w) If a Bailiff omit to return to the Clerk .".uy summonses within six day.s after service, he forfeits part of his fees upon it : Rule 90. (;r) It will be observed that the plaintiff" is to enter with the Clerk "a cojn' (and, if necessary, copies) of his account, claim or demand," These words comprise all causes of action within the jurisdiction of the Division Court. The particulars in all actions must come under one or more of these heads. One would have supposed that a plaintitf should furnish the Clerk with a copy of ^•Ti w- s. 08.] ENTRY OF CLAIM. 91 to tlio order in wliicli tlio copies are entered, and tlierenpon a .suinnions sluill l)e issued, beii.-ing the nund)er of the iioconnt, cliiini or deniand on the nnirjL^in thereof, and corres- poncHng in substance witli such form as may be prescribed l)V the General Rules or Orders relatinir to Division Courts his "account, claim or deinaiid" for service on the defemlant ; otherwise it in ilitHcult to see the necessity of making provision tliat "copies" should ))e fur- uijilied "if necessary." It nny refer to copies of notes rendered necessary by tlie danger of sending oft' tlie original note with summons for service. However, tiie editor of tlie L<iir Jaiininl thinks tliat one copy is all. that in ordinary actions tlie plaintiii' is Ixmnd to furnisli the Clerk with ; and wc will accept that view (if it : G U. C. L. J. 38. Hy Uule 3, "the claim slumld shew the names in full and the present or last known place of abode of the parties." The words "place (if ahode" here should, it is submitted, receive the same meaning as "residence :" .sec notes to sections 02 and 72. Hy Kule 4, "the claim shall in every case, admitting thereof, shew tiie particulars hi ilrfai/, and in otlier eases shall contain a .it.itenu'nt of tlie particulars of tfii- cfdiin, or the facts constituting the cause of action, in ordinary and concise language." The claim, wlieii brought to the ('lerk, shoidd contain ^/// the re(juisitcs of this section, and the rules adverted to, and would not be complete witliout it: see also Forms 1."), Hi, 17. Some Clerks are in the habit of eh.arging defendants with the claim attached to the (iriiiinal summons, if made out by themselves at the i)laintitt"s instance. Wiietiier made out l)y them or not, it is irroii;/ to do so. As shewn l)y this section, Hule .3, anl section (iO, the piaintift' "sliall enter "with the Clerk a copy of his <acc(mnt, claim, or demand, in writing, and he "shall furnish the Clerk with particulars " of it. By I'ule 80, "the Clerk shall annex to every summons," that is, the original summons, "the cop;/ enteral witli liiin according to the .3rd Rule." When the original summons and claim attached to it are therefore complete, there is nothing to be charged the defendant for ropie.-i. As to tiie eoi<y of summons and claim, oiih/ firo are, in the case of one defendant, chargeable under any circumstances. Some t'lerks .ire in the liab-it of charging, II.-: fur a ropji, that part of the claim which gives the n.ames of the 2)arties, and tiieir places of al)ode, under Rule 3, and iilm for the particulars of claim or demand, as another copy, and tlie copy of summons as a third ; in eti'ect making tliree copies. This is a device to increase the number of copies, and entirely unwarranted by the statute. Rules of Court, or the tariff.- It takes the names of the parties, their place of abode, (duI the subject matter of the suit, to con- stitute "the claim" mentioned in the lirst and hftli items of the tariff'. Neither one would be complete without the other. For instance, in Form Ki, it will he seen that it is merely given as an example; and, if necessary, ^'fhe r'liiin must shew such further particulars as the facts of the case re(iuire :" Chitty's Forms, title, " Particulars of Demand." Fisher's Digest, ()'2'J4, may also be referred to on the same subject, and Forms 15, !(!, 17. 'I'hc Clerk is not hound to ])repare a suitor's claim (2 U. C. L. J. <)1), and it is submitted that Clerks would exercise a wise discretum in not doing so, and thereby })e acting within the spirit, as Avell as the lettei", of the lOOtli Rule. A number of valuable Forms of particulars of claim will be found at pages 21 and 41 of 1 U. C. L. J. ; see <ilso Rob. & .Jos. Digest, 2()r>4, .and Bullen & Leake's Prec. , and Chitty's Free, in Pleading, under the different heads. As to claim for interest, see McKenzie ft (il. V. tlarrlx, 10 U. C. L. J. 213. If debt is assigned, the action slumld be hrought in the name of the assignee ( WellhKjfon v. Chanl, 22 C. P. 518 ; Couxinn V. Jinllen, 6 P. R. 71), and assignee must take the full beneficial interest : Wood V. MrAljiine, 1 App. R. 2.34. If action brought in the name of insolvent after insolvency, it is wrongly entered (»b'a(/er v. Du/'aur, II Q. B. 325; Kitmu v. 5-H^ Vj;! m m 02 SERVICE OF SUMMONS. [ss. G9, 7(». M -yh 1 11.1 k.-i;,::!;' ■ ■•'■.:,i ' ii.'!'-': ■ -■;;:i 1::- -.,T" /Is-.. y /i^ «^-.^ a^^^ from tinio to tiiuo in force, according to tlio nature of tin- account, claim or tlomancl, and on the trial of the causfs wn evidence shall be given by tlio plaintifi' of any cause of action (i/) except such as is contained in the account, claim .^ or demand so entered. 0. S. U. C. c. 19, s. 74. I'lftiniifrto 4;j>. The plaintiff' shall furnish the Clerk with the par fiiniisli par- . . . ticniiirsdi ticulars of his claim or demand, (z) and the CJlerk shall annex I'laiiii to the . . , . dtrk for the plaintiff's particulars to the summons, and ho shall BlTVicO. /• • 1 • 1 p 1 lurnisii co})ies thenjoi, to the proper person to serve tlic same. C. S. U. C. c. 19, s. 35 Service of 'J^^ The summons, with a copy of the account or of tlic Kiiininoiis to _ , betoniluys. particulars of the claim or demand attached, (rt) shall In- served (i) ten days at least (c) before the return day thereof, (ri) C. S. U. C. c. 19, s. 75. llardwick, L. R. 7 0. P. 477, per Willes, J. ) ; but if brought in iiiime of insolvent btiforc insolvency, it can bu oontinued aftcnrardu in his name : J)iinn v. Incii) if af., 2r> (!. P. 111. 'i here can be an equitable assignment of a smaller sum out of a larger amount : ISrirc v. BtDuiiMcr, S Q. B. D. 569. As to the assignment of cboses in action, see Rev. Stat. 1117 ; Iloxtrawncr c< al. v. liohinmn, 2'^ (J. I'. .S.IO ; BMr ft al. v. Ellix, M U. (). R. 400 ; Lawh ct al. v. ^uthcrlaml, Wl U. C. li. 143 ; J{<iirrii.s/>in V. Jliiupir H al., ,•?(> U. (J. R. liJlo ; O'Connor v. McXaiiwc, L'S <;. P. 141 ; Ooiild V. r/wY', '21 (Jrant, 278 ; Jlowell v. McFarland, 2 App. R. 31. In the last mentioned case, it was //'/(/ that one partner hail a right, without the consent of his co-i)artner, to sell and assign a partnership debt. Before suing on a lost note, the plaintitl' should tender sufficient security, otherwise he wrmld be made to pay the costs of the suit : La lianque Jacquen Carder \. Strachan, f) P. R. lAJ). (//) Subject, of course, to the power of amendment : Rule 104, ef. seq. (z) It will be seen from this and the next preceding section, that the plaintitl is at least to furnish one copy of his claim or demand to the clerk, who shall annex the same to the original summons : see Rules 1 ('*), 80. (a) See Rule 80, and notes to section 68. {h) See notes to sections 62 and 72. (c) This means ten days, t'xrlud'uiij the day of service and the Court day : see Rule 82. " Fourteen days at least must mean fourteen clear days : " Zouch v. Emjh'icy, 4 B. & Aid. 522 ; Rcq. v. Jud[cv>i of ,S/irop.sfurr', 8 A. & E. 173 : Mitrhidl\. Fonter ct al., 12 A. & E 472; Norton, App. v. The Toimi Clerk of Salhibnrii, Resp., 4 C. B. 32; R<'(f. v. Abcrdare Canal Com pang, 14 Q. B. 854; aVIaxwell on Statutes, 310. Sunday is reckoned as one cf the ten days, whether it be the first, last or any intermediate day : liowherry v. Morgan, 9 Ex. 730. The time appointed for the sitting of a Court must be understood as the mean time, at the place where the Court sits : Curtis v. March, 3 H. & N. 866. In this case, Greenwich time was held not to govern. (d) In the higher Courts process is returnable for some purposes from the time of service : Swift v. Williams et al., 5 U. C. L. J. 252. But here the " return day " is meant the day for which the defendant is summoned for the hearing of the case, aud cannot be sooner than ten clear days from the day of service. If A,> tc<-X<-^>A /: ' ^- (X. 't; '!'■■< ^i' ^Z- 1<U^ hai^ ' \^ (l^^,^ ^^^.^ /--^/^ mg cit fte. If SS. ( 1, 72.] WHEN SKUVICR TO HR PEKSONAT,. 93 71. Ill caso none of tho (Irfciidiiuii reside (fi) in tho Oonntv ^'"T "f" ill which the iictiou is brou'dit, but one of them resich's in iS'iiiyfunJ , when "JO iiii adjoining (Jounty, (/) the summons shall be S(;rved fif- <ii>y» teen days, and in case; none of the deftnulants reside in the ('oiuity within whicli the action is brought, or in an adjoin- ing County, tho summons shall be served twenty days at least hefore the return day thereof (//). C. S. U. 0. c. It), s. 70. Tdi, In case the amount of the account, claim or de- When sir- ' vice to tio iiiand (h) exceeds eight dollars (i) the service shall be j)er- piinomii or sonal (k) on the defendant, and in case the amount does not a atiinmons is made returnable on a Sunday, it would be a nullity : Murrinon v. Munlci/, 1 U()wl. N, H. 773 ; Kciiwurt/ii/ v. Peppiat, 4 B. & Aid, ^88. ((') See notes to sections 02 and (>;;. ( /■) (bounties here referred to mean those bordering on each other. (//) As to caleulation of time when summons returnable, see notes to section 7t) and Rule 82. (//) A sum included for interest will form part of the "claim or demand:" Jtixliraii V. Luca.i, 10 Ex. (570, prr Pollock, C". H. ; Smart v. Nhui<irn ami l)e- Innf Ma'dway C'oiiipaiiy, 12 (.!. P. 400, })()• Draper, (!. J. ; Nurtkern Jiailirai) Compnnij v.' Lister, 4 P. K. 120 ; McKeiizir et al. v. Harris 10 U. C. L. J. 21.i (/■) Should the claim lie one cent over iiJiS, service woidd have to be personal. As to service at defendant's I'esidence or place of al)Otle, see notes to section 02. (k) Personal service means serving the defendant with a copy of the process, and shewing him the original if he desire it : ('Oiji/'S v. Lord J/initiiii/tower, 12 M. & W. r)03 ; 1 J). & L. 590. Merely shewing the summons to defendant would not l)u good service. A copy must be left with him : Worlcij v. (llorvr, 2 Strange, 877. I f, on the refusal of a defendant to take the copy of the summons, the otlicer brings it away with him, the service is not good : J'iijcun v. Jirure et al., 8 Taunt. 410 ; I'Jnrln v. Powfci/, 2 U. C. K. '270. Unless the defendant, within a reasonable time, asks to see the original summons, it need not be shewn him : J\ttt v. Amhrasc, M. & S. 27 1 ; Thomas v. Pcarcr, 2 H. & 0. 701. It has been held that fifteen minutes was not an unreasonable time : WcHtki) v. Jones, 5 Moore, 1(52. If inspection of the original is demanded and refused, the service is bad : Weller v. Wallace, Uob. & Jos. Digest, 2872. Notice of the sumnu)n8 and claim is the primary object of service : Slieehi/ v. Pru/e.snioiKil Life An/iurance Corn- pnuji, 13 C. B. 787. The following have been hel<l to be cases of "personal" service. In Smith v. Wintle, Barnes, 405, the writ was put through the crevico of a door to the defendant, who had locked himself in, and it was held good personal service. In Boswell v. Poherts, Barnes, 422, the writ and copy had been enclosed in a letter to defendant, which he had read, and from which he took out the copy; it was held good pei'sonal service. See also Aldredv. Ifickn, 5 Taunt. 180 ; but see the later case of Jiedpath v. WilliamH, 3 Bing. 443. but service at a man's house is not personal service, even to save the Statute of Ijiinitations : Frith v. Lord Donegal, 2 Dowl. 527. In Davies v. Morgan, 2 C. &. J. 587, one of several defendants in an action ex contractu was abroad ; .the IJourt refused to order that the service of jjrocess on his wife should be good, or to restrain the other defendants from pleading in abatement. The facts were peculiar in Goggn v. Hunlingtower, M. & W. 503, 1 D. & L. 599. In order to nerve defendant, a person went three times to his residence, when he saw a female servant, who said her master was not at home. On the third occasion, • • ■« ■ J<^ ■ »'■•• •■ •1 v-'.-<4'./.' '.r;.V,' ■ ''.•'■■-••V.v!* '"•»'., ,v'. .' , : .■ , . ■ -a^ •■ • •' i; jti ■ . <'j ^ ii I » _. - .* ■ 94 WHAT IS snuvicK. [k. 7'-'. I!t>'> v\l!!',-/f ('X('('(m1 t'i<,'lit (lolliivH, the service maylicini the iH'ciKlant, his wife, or Hcrvaut it soiiio grown person being an inmate of the (leiV'tulaiit's ilwelling lioiiHc^, or UHual place of uhoile, trading nr dealing. (J. S. U. (J. c. ID, h. 77. till) sorvftut lee down over the gartleii wall a basket, into which the writ was ]).it, 'i'lie d'-:i\iiiit tlieii tniik l)aoU tliu l»ii.sket ; and shortly afterwanJH tiie void of tlio (lerundaut wan lieard in tiie yard, saying to the Hervant, "Take it back ; I will not have it." Tlio party called on a MuhHiMpient day, when the servant siiid hIio had given the writ to her niaHter. Ihlil, not a per.sonal service, in ('Itri-^tii'd.s V. I'jirli'i, (i l). & b. l'")l), tlu' facts were these. Several calls had been ina( Ic at defendant's resit Icin^c liy tlie party whowas endeavouring to serve the w lit, without sncccss. On the last occasion, liaving iiKpiired if the ilefendant was at home, and having received an evasive answer, he waitt.'il in the hall. Ha\ in- aftewards gone into the parlour for a few minutes, he saw the defendant running: upstairs. He inunediatelj followed after (b^fcndaut, but before he could give hi a c<i)'y of the writ, the defendant went into a room and fastened the doot. lie then called out to him, and told tiie defendant that Ir' had a writ against him at th(! suit of the plaintifl', and, putting a copy of it tln'ough a crevice of the dooi . told him that that was a copy of the writ. Ilchl, not actual personal service, but oidy constructive sei'vice. Hut see SniUli v. Winkle, .siipni. Service u])on "a female servant at the lodgings of the defendant " is not good service: J'riri V. r/iuiiiii.^, 11 C. li. r>4.'}. In //((tth v. W/iifc, 2 J). & L. 40, it was /ir/d that where the party attempting to serve the writ of summons went t(» the defend- ant's house, and, seeing him standing at a closed window on the yrouud flooi'. told him in an audible voice the purpose for which he came, and threw a copy of the writ down in his sight, and in the presence of his wife, who had come out ()f the house, and who had denied that he was at home, and left it lying there in the ilefendaut's ganlen, the service was not suflieient. If a defen- dant refuses to take a copy of the summons, the jn'oiter course i.s to inform bim of its nature, and throw it down in his presence, pir I'atterson, J., in Tliinuji-^on V. J'/iciiii/, 1 Dowl. 4i'^. If proceedings be taken as if personal ser- vice had been eff'cctcMl when it was not, they are irregular only, and not iiiill (IIdIidc^ v. lliix.tell, S) Dowl. 487) ; and a defendant must move ju'omptly after knowledge of it to set them aside, or he will be taken to have waived the irregu- larity : WUUh v. Hull, 1 Dowl. N. S. 'AQ'A. But where no irre[)arable wrong will be done, a plaintiff who has obtained jinlgment by default, lajii e of time is not a bar to the application to set aside : Attcood v. C/i'ich enter, 8 t^. B. D. 7-2. If there are contlictiug affidavits as to service, .and the party serving has deposed to personal service, the L'oiu'ts will not set fiside the proceeding tipon an atHdavit of the defendant that he has not been serve<l : Murri-t v. Coles, '2 l>owl. 79 ; <'ll('s V. Hemm'inij, G Dowl. .325 ; Emerxon v. Brown, 7 M. & G. 470. The principal office of a railway company is where the general government ot the road is carried on. Service .at any other station on the line, however im- portant, was hekl insufficient : ilartun v. 0. W. li. Cumpaiiij, E. B. & E. 837. In this Province, service would be good on the president or secretary of a railway company, and where the board of directors are outside the Province, then on the general manager: Ncwhij v. ColCs Pafetit Fire Arms Company, L. R. 7 Q. B. 293 ; Boi/al Mail Steam Packet Conrpany v. Braham, 2 App. Cas. 381 ; Mark-ereth v. Gla8(jow tC' S, W. H. Company, L. R. 8 Ex. 149. In actions against trading corporations, it is submitted that service could be effected on the presi- dent or secretary of the company, and in case of joint stock companies, incor- porated by Letters Patent, see Rev. Stat. cap. 150, s. GO. If the Bailiff cannot effect the service of the summons, he shall, immediately sifter the time for service has expired, return the same to the Clerk, stating the reason for non-service »/i writimj on the back of the summons : Rule 90. Ser- ss. 73, 74.] PHOCK88 EXFXUTED AT A biSTAyCE. 05 lU, 'I'lii' i)Ostii<,'(>H of papers rocpured to bo smvcd out of ^''-itat'eh. tli(( Division, iviid sseiit by niiiil for Mcrvico, hIiuII bo cossts in the cause. (/) C. S. U. C. o. ID, s. 7H. 74, WIhm-o tli((ro is no UailiU'of the- Court in wliich tlic Wow prn- ri'ss, iVc, .ution is Itrouiflit, oi' wlicrc any sinunions, oxffiiticii, suit- iii;iy !"■ ixi- jMi'iia, pi'otrss or otlior dorunicnt, is reijuirod to b(! s r\od or ili»tuii«x. c.xfcutod (dsowbnro than in the Division in whicli thi^ action is brouglit, it may, in tho election of tlie party, be din^ctcd to l»e served and executiMl by the Bailiii' of tlie Division in 01' near to wliicli it is required to be executed, or by sucli x'wii amy l)e ntiulu at any hdur of the day ')r night : Uf>fon V. Mtii'htrJf, 1 I). iV 11, 17-; Prhldcr V . (\>itpir, I liini^. (i(i. The HumiiiDnH may ln' mitvciI in any cciiiiit}' in Ontario, and l>y any Hailiff (//( re Liiiliiiircnr v. ,S<i/f-i', I', it. .SO.'i). altliiiui,'li nut hound to go outMido of his own division: suction 4"). If nervod on a Sunday tho Hcrvice is void, and cannot bo waived ; 7'iiiflor v. /'/lil/i/is, .'{ Iv-ist. I'm. Service is good, though made while defendant is attending (,'ourt in his own cause: Paah' v, Umiltl, 1 H. k N. !)!• ; Vitji of KimjstDii V. lirmni, 4 V . V. It. 117. The Hunnnons, We need scarcely say, nnist he served hy one who can read so as to he ahlo to swear if necessary to the correctness of the copy : Diliijii'ld V. .Imii'.i, C'a. l*r., ('. P. .'i4. Hut inal)ility to write is not an ohjcctioii : linlrr V. ('oiili/dii, 7 C. H. \',i\. W'liere, in an action against a father, process was served u])on liis son of the same name and appearance enteriid and defenei' made hy the son, tho Coin-t /n-ld that a Verdict for defendant was correct, and tiiat, whether there was collusion or not, the plain tilt' could not recover against tin; son so as to charge the father : Kilhii.s v. Strc'f, M. T. 4 \'ic. A writ (liieoted to ./. S. was, hy mistake, served upon his son of the same name, who. a few days afterwards, g.ive it the father, the defendant telling his son that the SiicrifJ' had made a hlumler, and defendant at his son's re((ncst took it to an Attoi'ney, who, upon defendant's instructions, entered appearance, and after- wards put in pleas ; it was /i ili I ginnl service : Tlif Prorinrin/ Iiixuratin' Voiii/xnii/ ')( Ciiiiadd V. Shaw, 1!) U. ('. K. ;^()0. In an action on a mortgage the writ was served on mortgagor's father, who, hy his son, an Attorney, entered an appear- ance and defended the suit, and a verdict was taken against the mortgagor, the verdict was set aside l)ecaiisc served (m the wrong person, an<l no notice or knowledge of the proceedings were shewn to have reached the defendant : StUha-landx. DuiMc, 14 C. P. 156; see also Wnllei; v. M't'oinir//, U Q. H,, WH. An admission of service of summons waives all technical irregularities : OUs V. KitKfiiii. H al. 2 P. li. 48. As to mistakes in summons and copy, see lioh. & Jos. Digest, '2875. Where personal service is not necessary, the Bailift' should hu particular in serving one of the three persons mentioned in this clause, and siiewing the nature of the service in the affidavit ; and when served on "some grown person, being an inmate of the defendant's dweUing-house or usual place of ahode, trade or dealing," his or her name, if possihle, should be stated on the arlidavit, and the fact that the person was grown up and was an innuite of the particular house, &c. : see Form 106. On these points, see particularly 2 U. Vj. L. J., 85, 86 and 104, where the mode of service is fully discussed. (/) This expression among practitioners has a pretty well understood meaning. The costs of all ijroceedings "which form part of the regular proceedings in the cause " are generally understood as " costs in the cause :" Cameron v. Campbell, 1 P. R. 173, per Burns, J. ; Fisher's Digest, 2097 ; L. R. Digest, 773 ; Hob. & Jos. Digest, 822. •^jr . '.;i.r'* ■ V,-'»< ■ vl >•■;■,'..•..■' - '♦• ■ / ,,,-o.»';';vvy -.;.,'•■ ••■'^■•i' ■•• V * ■■■ . . •■• V..- ; ( )| ' :•. ;■,•'■''«>• • ">* ■■■ I I . •;' . !■'.> • .'-.i',,''" ;- ■■■'. *• ■•.-■'"'*■■'«" i*'--' ■ m 96 BAILIFFS TO SERVE PKOCESS. [S. ,:i:,-j!'!l.-..:.: ^ , t' ■■ ' a -'■,'. ■ ■■'„ ■f",.- DutteB of Kailifrmul other Biiilitf or person as the Judge, or Clerk issuing the Same, orders, (wt) and may, for that {)urpose, be tranHinittcd by po.st, or otherwise, direct to such Bailiff or i)erson, witli- out being sent to or through the Clerk. 32 V. c. 23, s. IS, '2!i. In eases mentioned in the last preceding section, it liiibiiiiy of shall be the duty of such Bailift' to serve and exeoite all such sureties ' . summonses, executions, subpamas, process and other docu ments,avid make return thereof, with readonable diligence, (?<) and to pay over, on demand, (o) all moneys by him levied or received thei-eon ; and for neglect or default therein, iu addition to any other remedy against such Bailiff, he aiul his sureties shall be liable, on their covenant to the j)arties (m) At first sight it would appear that the papers mentioned in this section might be served or executed under its provisions in any County ; but by Rule H4 ii writ of execution cannot be issued under this clause to the Bailiff of iiny other Division Court not in the same County. The proceeding in the latter jase wouhl he by transcript under section 101. Davy v. Johnson, 81 U. C. K. 15^, was an action against a Division (.lourt Bailiff for not levying under an execution, the declaration alleging that the plaintiff recovered a judgment in the First l)ivisi(m Court of the County, and thereupon sued out an execition directed to the defendant as Bailiff of the .Second Division Court of the same County, coni- numding him to make the money out of the goods of the defendant in the suit wheresoever found ; and that there were goods of defendant within such Secoml Division Court (mt of which the Bailiff could have levied. Held, that the declaration was bad, .and shewed no cause of action. In delivering the judgment of the Court, Morrison, J., says : "In my opinion, if the_/('. fa. is one issued aud to he executed luider the provisions of 32 Vic. c. 23, s. 18 (the one in question), hy the Bailiff of a Division Court other than the Bailiff whose duty it is to execute^'. /«.'.s under the ISSth (now the 15Gth) section of the Act, in sucli case the direction tf) such other Bailiff should be to levy, &c., within the division 'naming it) of which he is Bailift", or near to it ; and if directed to another, who is not tiie Bailift' of the division in or near to which it is to be executed, it should also appear that such other Bailiff or person had been ordered to act by the Judge or Clerk ; and I think the count is defective in not shewing that the Ji. fa. was to be executed in the defendant's division, or near to it. 'I'he bare fact that the debtor resided in the defendant's division is not sufficient." The (juestion arose as (me of pleading in that ease ; but the language of the learned Judge is Cjiute clear as to w' ."'■^ facts should concur, and what is recjuisite to bu (lone to take advantage of i •; » section. If the execution is to be executed hy any other person than the Bailift of the divisicm in or near to which it is required to be executed, the more correct practice would be to have the Judge's or Clerk's order indorsed on the writ. (ft) No rule can be laid down in this respect. own circumstances. Each case must depend on its (o) This section makes a demand a necessary preliminary to proceedings being taken. On the subject of demand before suit, see article at page 230 of 10 U. C. L. J. ; Trn.s(ci',i of School Section No. 3, Cafedon, v. The Corporation of Cak- don, 12 C. P. 301 ; Bamford v. Clvwcn, L. R. 3 Q. B., page 732, per Cockburn, C. J.; Western Ansitrancc Company v. McLean et al., 29 U. C. R. 57 (>2 ; Llado et al. v. Morgan et al., 23 C.'P. 517 ; Matheson v. Kelly, 24 C. P. 598. SS. ( 6, 77.] AFFIDAVITS OF SERVICE. 97 uggrieved, as if sudi summonses, executions, subprenas, process and documents liad issued from or related to some fsiiit in the Court of wliich lie is Bailiff". 32 V. c. 23, s. 19. 16. The Clerk shall prepare affidavits of service of all Clerk to Hiunuionses (jt) issued out of his Court, or sent to him for JiavVt'Itf " service stating how ((/) the same were served, the day of ^"''^"''^' '^'' service, and the distance (r) the Bailiff" necessarily travelled to ctfect service, and the affidavits shall be annexed to or endorsed on the summonses respectively ; but the Judge mav require the Bailiff" to be sworn in his presence, and to answer such questions as maybe put to him touching any service or luih-age. C. S. U. C. c. 19, s. 80. HH, lu case of a debt or demand (s) against two or more Om- of persons, partners in trade (t) or otherwise jointly liable, (u) ner's'i.'niy^'^ (/() The duty here impnsed on the Clerk is imperative. For the neces.sary foninlities (tf all aHiilavits, sue Rule V.V,^. A very coiiiinon mistake made by (.'lurks is the omission of the title of the Court and stj'le of cause in affidavits. Any proceedings taken on such a supposed affidavit would be had (Lush's I'rac. ;^r(l Kd., 879, et neq.), unless the Judge ordered tlie same to l)o received under said liule 13.S, or unless it is an affidavit of the service of an ordinary or special .-uniinons, as to which special provision appears to be made in Forms 10() and 107, dispensing with the title of the (!ourt or cause when endorsed on sucli suinnions. The power of the Judge to make this order, except in a case where tlie alli.lavit nca'ssnrili/ comes before him, in proof of something done, is so doubtful as to make its exercise the exception, and not the rule. For forms ot affidavits of service, see Forms lOG, 107. (7) If personal, that fact can easily be set forth ; if not personal, then shewing iiow served otherwise : see notes to section 7-. (r) If less than a mile, mileage is not chai-geable, for the tariff only provides for '' crrrii m.'ili' " necessarily travelled. If the distance travelled is greater than any given number of miles, did not as much as the next succeeding number, the part of a mile travelled is not to be reckoned. Mileage should l)e calculated from the point at which the officer received the paper. If two or more defeml- imts, the mode of determining the distance travelletl is by estimating it first to tlic place where the first defendant is served, then from there to the next, and so on ; and the aggregate distance so travelled is the cf>rrect measure. It would be improper to charge mileage to each defendant's place : Corporation of Ifiililiiaaiiil V. Martin, 19 U. C. It. 178. Too nuich care cannot Ixs taken by Clerks in preparing affidavits of service of summonses, for an omission in respect of any essential might jeopardize all subsequent proceedings : Jaroinh v. Uvnry, l.'i C. P. 377 ; see note to the charge of mileago in the tariff of Bailiff's fees. (s) As to what is a "debt or demand," see notes to section 79. (t) As to who are, see Ex parte Tennnnt, In Howard, G Ch. D. 303, and the tost there considered. (») At Common Law, a judgment against one or more several joint debtors, witliout satisfaction, was a bar to any action against the others (King v. Uoarc, 13 M. k. W. 493) ; but not whore the debt was joint and several (lb.), 1 '''■.•.■''"■.'•■<' '''^ •'•'■;,'.i '''■ .• ". ''>V'',-.-';'*"'<-;, Vji^l r •? 'i'^ ■■ t ■ ' i' * m ■ '*<'*' 4 "' '. -.-'''j;? ' '* 1 * * ■ V - 1 •" *■ M ■■"■■ ^'.I'^.f ■■.tt*^ ■ , •/ 1 ',r >.>■■■''.'■ i.T. .',•,■: ... J ►■*■». '. '^.^-^ ■••■■■ 'I . ■;* i' t^ -v-.,. -V ■■, ■ . ,M ■''V'., r t .^.^.',..••••1 . ^"'^.J^'t •■'•:* ^^ •■...■ -:;^A-^H-'^ 1 '■■ .■'■•.•;-.l!:.!.. ..• ■■ ;■ V?, » •,>k,..-X >*'■* ' • y. '■<••.' n:;. '..•■v..-.' ,- : 1-. <^i- . . .> v '■. .-■■- "1 •••:'.'*.*■'•' •• " -., •■■ ■'•;••■:•.' ' ■•»'•»{■ •;. / , . . .11 ,.;, 4 ..i , ■■ . 'V; ivV;."' . , , ■■. ; ,.j, ». l7.. .• .. ■ •.» •■,*•;» V i'. ' • ' ;■•^■ii]^^.^,;^•■• rr ■PHP §:- tii'. ' "f 98 PROCEEDINGS AGAINST PARTNERS, [». 78. :Mr Hi It ■':■:' '•"J'''-:' ,- !'t -'fi.. lie Hiicd Ju ceitain Bailiff mny Hi'ize pro- jieity of linn on certitioate of Judge. but residing in different Divisions, or one or more of whom cannot be found, (y) one or more of such persons may be «erved witl) process, and j\ulgment may be obtained and execution issued against the person or persons served, not- withstanding others jointly liable have not been served or sued, reserving always to the person or persons against whom execution issues his or their right to demand contribution (tu) from any other person jointly liable with him. C. S. U. 0. c. 19, s. 81. T8. Wherever judgment has been obtained against any such partner, and the Judge certifies that the demand proved was strictly a partnei-ship transaction, (x) the Bailiff, in order to satisfy the judgment and costs and charges thereon, may seize and sell the property of the firm, (y) as well as that of the defendants who have been served. C. S. U. C 0. 19, s. 82, anil Vc'Htrij of Bermondseji v. Ramseji, L. R. 6 C P., p. 251, j)er Montague Smith, J. Where one or more only of several joint debtors is sued in a DivisifW Court, he can set up the non- joinder of the other co-debtors (Dicey on Parties. 506), exce))t where the defendants reside in different divisions, or where one or more of them cannot be found. In which case, see Rules 113 and 151. The limit of the cUvision in Division Courts is by this section made somewhat analogous to the provincial territorial limit as to jurisdiction of the higher Courts in this respect. ((') This means after reasonable efforts have been made to find a defendant. "Whether such had been made would always be a question, for the Judge to de- termine .before proceeding to hear the case against the one served : TomUnwn V. Goathj, L. R. 1 C. P. 231, par Erie, C. J. (w) Contribution here means the payment by each person of his proper share of a joint debt : Wharton, 180. As to the liability of a person in this way, see Add. on Cont. 7th Ed. 990 and 1011 ; Fisher's Digest, 82(57 ; L. K. Digest, 717 : and notes to section 32. Any defendant or co-surety cannot compel an assign- ment to be made to him of the judgment by the plaintiff, unless such defendant or surety has paid ul.c wiiole of the debt : In re McLean v, Jones, f L. J. N. S. 20(5 : see also Brown v. Gossaije, 15 0. P. 20 ; Potts v. Leask et a/., 36 U. C. R. 476 : lanson v. Paxton^ 23 C." P. 439 ; Flshen v. Gordon, et nl, 40 U. C. R. 146 ; and Rob. & Jos. Digest, 745, on the general question of contribution. (a;) The proper test of a liability as a i)artner is not wliether the party souglit to be charged has stlpulateii for the participation in profits as such, but whetliei- the trade was actually carried on by persons acting on his behalf : Whentcrofi V. Hickman, 9 C. B. N. S. 47 ; 8 H. L. Cases, 268 ; Kilshmu v. Juke.% 3 B. & S. 847 ; Bitlkn v. Sharp, L. R. 1 C. P. 86 ; Ex parte Tennant, In re Howard, (5 Ch. D. 303 ; In re Randolph, 1 App. R. 315, and cases there cited. (y) Without the aid of this section, the Bailiff could, on an execution agains*^ one of two partners, seize the goods of both, but only sell the defendant's undi- vided interest in them : Johnson v. Evans, 7 M, & (k 240 ; Lee v. liapelje, 2 U. C. R. 368. In order, however, to justify a seizure and sale of the partnership s. < 9.] JUDGMENT BY DEFAULT. 99 Judgment by Default where Specially Endorsed Summons. 79. In actio n.s brought in any Division Court for tlie )" proce*- recovery of any debt or money demand, (z) where tlia par- si'eciiii .sum- ticulars of the plaintifF'.s claim, with reasonable certainty and .iiniguieiit '■ ' * entered by detail, are endorsed on or attached to the summons, and a the clerk, '. ... wlieii elaini copy of the summons and particulars, with a notice in the ii'>t iiis- form prescribed by the General Rules or Orders relating to })roi)erty, it must be under the circumstances mentioned in the previous section 77, the words "such partner" shewing the necessity of referring to the previous section : Eaxlern Coimticn Hallway Company v. Marriaijc, G H. & N, 931 ; Pearson d aJ. V. Ruttan, 15 C. P. 89. {;) The provisions of these sections in respect to judgments by default on specially endorsed summonses were introduced late in the history of Division Court law, but have already been productive of good results. They afford to luisiness men in many cases a speedy means of placing claims in judgment, and readily realizing their fruits. They save much needless trouble and expense. The inconvenience occasioned under the (dd system of a creditor's being obliged t(j attend Court with witnesses from a ilistance at considerable expense, even though no defence was ever intended to l)e offered, was frecpiently experienced. The hardship of it called for legislative interference ; and the clauses we are now about to consider were the result. In the exjjcrience of •bulges, as well as suitors, wo think the virtue of these provisions can readily lie attested. The ordinary routine business connected with simple undefended <;ases is properly confined to the Divisi(m Court office. The Judge is not troubled with matters that can betcer be attended to by the Clerk ; and suitors in legitimately defended cases are not delayed by what formerly was the plainest and simplest parts of judicial work. The Clerk now performs that work which formerly belonged to the Jutlge, in a manner more to the interest <if the suitors, and to the relief of those interested in matters coming before the i'durt. The ^ol!owing causes of action, it is subnutted, would come within the )iioaiung of the words "debt or money demand," as used in this section: any •sum of money certain payable under any covenant, money-bond, or parol agreement ; any cause of action which in the higher Courts would be declared fi)r as money payable for goods sold and delivered ; goods bargained and sold ; work done ; money lent ; money paid ; money had and received ; interest upon iiioney ; accounts stated ; lands sold and conveyed ; use and occupation ; rent ; money payable on bills of exchange and promissory notes ; on an award ; the price of shares or stocks sold ; freight ; hire of goods ; on a guarantee for the payment of a sum certain ; carriage of goods ; board and lodging ; agistment of cattle or horses, &,c. ; premiums of insurance or assessments made by Mutual Insurance Companies ; medical or other attendance ; on a penal statate where jurisdiction not exclj^ ed {Brash </ni tam v. Taijgnrt, IOC. V. 41o) ; in cases where damages lifpi. ' ■■:'\ ; goodwill of premises, and on a judgment of a division (Jourt: sectioi. . ''^ Under this section an actiim cannot of cfmrse be (•(mimenced until the "debt or money demand" is past due. A debt means something due or coming due : Cfera(]htf/ v. Sharkey, 30 L. T. Kep. 204 ; Cohen V. Hale, 3 Q. B. D. 371. A bond with a penalty for the doing anything but l)aynient of money would not be the subject of a suit under this section : (Irmuohl v. Buffalo, Brantford and Goderkh Railway Comjmny, 3 U. (J. L. J. IIT). A money bond would: Johnson v. Diamond, 11 Ex., page 80, per Parke, baron. A claim for unliqiudated domivges would not be suable under this clause : ■'■' ■'.'^■V'-'d-l' .■ ' ■ ■■!■,: '■ -.h'V. _. .'i '■^■v ■■■■ .?•!'■:■;■ ,■ 'v•?,.^.7^. *■■:' \- \ '^•{A^i-'- ,'-■•'• ■ ' -. I ■ 'f • » J -4,» V :.m , ■] iS^it" » V^\i. .*■ • 1 ■ ■■ i'r''." ■•.\i'*^- •< Iii[r.f^f1..# .» 100 TIME FOR ENTERING JUDGMENT. [». 79, it . ,•« 5 .» I- 'v--^ Division Courts from time to time in force, annexed to or en- dorsed on such copy, has been duly served, (a) then, unlesb the diifendant has left with the Clerk, within eight days after (b) the day of such service (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 twenty days before the return) a notice to the effect that he disputes the claim, or souje part, (c) and how much thereof, final judgment may be entered by the Clerk on the return of such suinnmns ((/) or at any time within one month thereafter for the amount claimed in such par- ticulai"s, or so much thereof as has not been disputed, if the plaintifi' is content with judgment for such part, (c) and exe- Joiii'.'i v. Thompmn, 1 E. B. & E. 63 ; Dresser v. Johns, 6C. B. N. S. 429 ; Banl of Toronto V. Burton, 4 P. II. 56 ; Boiid ct al. v. Haipws, 5 P. R. 15. Aw unsettled })alauce between partners could not be sued : Cainplwll v. I'edin H uL, 3 U. C L. J. 68. If interest is claimed, the paitiouUirs should either state the amount of interest or the date from which it is to lie calculated : linnlell v. Miller, 7 C. B. 753. The rate of interest need not be specified unless above six per cent. : see Athn v. Bukwi/, 4 D. & L. 430. A claim partly licpiidated and partly unlicpiidated cannot be joined : lioijcrs v. Hunt, 10 Ex. 474 ; Wtstlake v. Ahhott, 4 U. C L. J. 46. Interest should only be claimed when recoverable by contract, eitlier express or implied: /«;//« v. WfllUujton Hotel Oompatii/, 2J) C. P. 387 ; see McKenzic et al. v. i/(i;vi,s',' 10 U. C. L J. 213. It is sul)mitted that an action can l)e brought on a Division Court judgment in a Division Court (see section 216), and is not open to the objection raised in McPlnrson v. ForreMcr, 1 1 U. C. 11. 362, and Donmlhi cf a'l. v. Stewart, 25 U. C. II. 398 ; and if so, could be sued under this section : Hodioll v. Baxter, E. B. & E. 884 ; Dick V. Tolh((itKi')i, 4 H. & N. 695. An action for not returning goods let t(» hire wouhl not be within this section: Collis v. Groom, 3 M. & (J. 851, )ier Tindal, C. J. A claim for an account stated with interest would be within thr Bection : Smart v. Xiai/ara and Detroit Hirers Ruilwaii Votnpani/, 12 C P. 404: see Northern Rnilwai/ Conipanij v. Lister, 4 P. W. 120. As to the meaning of the word "debt," see the discussion in Williams v. Harding, L. R. 1 H. L. 9. and Re Greensill, L. R. 8 C. P. 24 ; Beef. v. The Guardians of Stepnei/ Union, L. R. 9 Q. B. 383. (a) See notes to sections 62 and 72. (/•) The day of service is not to l)c reckoned as one of the eight days : Yoinuf v. Hiiition, () M. & W. 49; Weeks v. Wran L. R., 3 Q. B. 212; McCrea v. Waterloo Mutual Fire Insurance Cowpani/, 26 C. P. p. 437 ; Rule 82. But if the last day is a Sunday it is included : Bowhcrry \.' Morgan, 9 Ex. 730; see Mayr V. Harding, L. R. 2 Q. B. 410. (c) See liule 132 and Form 103. As to a defendant's pi-eparing for his defence between putting in the disputing notice and the sittings, aee 2 U. C. L. J. 23. If no disputing notice be liled, the Clerk must notity the plaintifi': Rule 88. (d) That is when the time for appearance has expired. (e) This would be a bar to any subsequent suit for any part of the claim sued for: Winger v. Sihhald et al., 2 App. R. 610; see Rules 21 to 23 inclusive. Execution may issue on judgment under this sectioo forthwith : see Rule 149. 79.] FILING AFFIDAVIT OF SERVICE. 101 ciitiou may afterwards Lsaiie thereon at the instance of tlie plaintiff. 32 V. c. 23, s. 2. 2. The final judgment so entered may be in the form Smniunns, prescribed by tlie General Rules or Orders relating to Di- mui .ifiiiiiivit. \isiou Courts from time to time in force, but no such judg- ment shall be so entered until the snmmon.s and particulars, Nvitli an afHdavit of the due service of botli, (y) have been filed. 32 V. c. 23, s. 3. 3. The Judge may set aside such judgment, and i>ermit .Jii<ij;.Miiay the case to be tried, on sufficient grounds shown (<j) on such jiidsiiKnt, (/) As to the care necessary in preparing such affidavit, see notes to section 76 :uul Jlule I'ili ; and if judgiuent should be signed on an insufKcieut atKdavit, it would he set aside for irregularity (Li-i'i/ v. lVU.-«iti, 9 \j. J. N. S. IHl ; Imt see Pot tr V. Pkkle, 2 1'. II. 'M)\), and the Clerk might possibly l)e lia])le as a tres- passer: Addison on Torts, 14; Curi'ii v. LuirUs.i, IS [J. C. I\. 2ii'o ; Roi-'Oiifr v. Wi'sUn-Mfk ft al., 24 C. l\ iM. For this atlidavit, see Form 107. A judgment can he signed on a holiday (Bi'»u<tt v. Puffer, 2 C <fe J. 022), but not on a non- juriilical day : Ilan-i^on v. SmUh, 9 13. & ( '. 243. (;/) The authorities shew that a mere general affidavit of merits would not meet the requirements of this .section (Whlh-ii v. Whiliy, 4('. li. >.'. S. (>r),3 ; Aiulertua v. Johimfoi), 8 U. C h. J. 4(5; 31c Duitahi i-t dl. v. Jiiirfaii ft nl., 2 I.. J N. S. 190 ; Thf IKw.*/- /• Coal Companii v. Xcl.wn ef al, 4 V. R. 343), nda that properly as full an affidavit is necessary as would be required to set aside A verdict in the higher Courts on the merits ; but in Division Courts great Allowances must he made : Proui/foof v. Narle;/, 11 C. P. 389; Vida/ v. H<i»k 4,f Umxr Canada, 1') C. P. 421 ; Bonrhkr d a/.' v. Patton et al, 3 U. C. I.. J. 48. An affidavit of merits is (mly necessary where the judgment is properly entered : Uall v. Scutnon, 9 Kx. 238, per Parke, fi., at page 240. An irregular ju<lgment can he set aside by a defendant without shewing nieiits : Jf). It is suggested that a proper form of affiilavit would he, in the ease of the defendant making the ailidavit, thus, "That I am advised and verily believe that I have a good defence to this action on the merits ;" ami in the csise of his Attorney, " 'Hiat defen<lant has, <is I am instructed ior infornud), and verily believe, a good defence to this action on the merits ;" and in ])oth cases slifinui] the facta, or fuinf /art, constituting such good defence. " He need not set out the whole defence with minute particularity :";/rc( Wkbum, C. J., atpage()r)9t)f 4C. li. N. S. The affidavit must apply the defence to the particular action, by stating that the defendant has a go(td defence "herein,"' or "in this cause," or "in this action," i>u the merits: Tatu v. Jiod/hhl, 3 Dowl. 218: Lane v. Js<iacs, 3 DoavI. O'y* ; Mcfiill ei al. v. McLiaii, 1 Cham. H. (5. It shmild be made by the defendant, his Att(«rney or agent, (»r some pei-son who has heen concerned in the cause, in such a way as to make him acquainted with its merits : lioirliotham v. hiipree, T) Dowl. 557. In setting asiile a regidar judgment, the C!ourt refused to restrain a defendant from ])leatling the Statute of Limitations [Madilork'^ v. Iluhiien, I B. & P. 228 ; see Knox v. (»>, L. 11. 5 H. L. (i5(] »)74); Or infaui y : lUafield V. Tanner, 1 Marsh. 391. N<»r would the Court refuse to set aside a regular judgment, though bankniptcy was going to be pleaded : Ennixv. (iill, 1 1$. & P. 52. In an action on an Attorney's hill, tha non-delivery of a signeil bill is not a defence on the merits (Heck v. MordaAt, 2 Bing. N. C. 140); nor is a set- off; Anderton v. Jofinstan, 8 U. C. L. J. -1«5. It is not only necessary for the defendant to shew merits, but to account for his not putting in notice in the ■>■}■',:■ •'%■; .;■ .y ,-■ .1 ■'ri^^l^: ■• ■. V.I, v>"r ,:,•>;:>;• , ; ^ ' 'J ■ ■.;'-„ -.3* ,r •!:,.■'.,,: 102 SETTING ASIDE JUDGMENT ON MERITS. If \ -1'" " •■■ . . I ' . t • .■ ■»■■ >;! •'::: ■ll A";i ■.■;-.■• ^■:, M'' ■<..,T'i- •.,. ' :1> 'f. [s. 7U. iiii.i onier ter.-ns as to costs and otherwise (A) as he thinks just. 32 V. trial ot ease. ^ ■> •' c. 23, s. 2. proper time as well, {per Cotton, L. J., in Atioood v. Chkhmier, 3 Q. B. D. 725) ; and especially if atrial has been lost: Arnold v. Jloberlsuu, 4 U. C. L. J. (Jit. But the Judge will let the case go to a trial if the merits are in dispute, as shewn by the Jiffidavits : Wilson v. Municipal Coh)kU o/* the Town <^' Part Hopt, 10 U. C. R. 405, and The Wooder Void Company v. Nelsou et al., 4 P. R 343. A judgment should not be set aside to allow a defendant to «et up matters sul)- sequent to it: Schqfkld v. Bull, 3U. C. L. J. 204. The truth of the merits shew. » by defendant's affidavit cannot be inquired into: Blewitt v. Gordon^ 1 Dowl. N. S. 815 ; Init see 10 U. O. R. 405. (/*) The plaintiff shox\ld l>e placed as nearly as possible in the same situation as though tlie action had proceeded in the usual way : Smith, v. Blundelf, 1 Chitty, 220. Defendant should l>e compelled to pay the costs {Siiited v. Lee, 1 Salk. 402 ; West lake v. AhlnM, 4 U. C. L. J. 46), and to go to a l>earing as soon as possible {Afatthcivs v. Stone, Barnes, 242j ; and sometimes will be ordered ti> bring the money^ or part of it, into Court.: Wirde v. Sinvion, 13 M. & W. 647 ; Ererif v. Wheeler 3 U. C. L. J. 11. Axv ■'ve application is made to set JC endant will, if necessary, be r V, 12th Ed., 989. So long eniorced : TnU v. Harrison, 17 first comply with the terms by the IV ii+age of it. It is submitted that a su , "ins ; aew cause: Jie<j. v. 344, and tli-' (as..s thore citciL But aside a judgment not regularly enti red restrained from bringing any action: tt' as an irregular judgment remains it cf.n (irant, 458. If the defendant does not order imposed on him, he cannot take i a judgment should only be set aside on Chen/lire Lines Committee, L. R. 8 Q. B. where the time has expired and no jmlgment entered, tlie onler ought to be granted ex, parte ; but in either case the grounds of defence should be shewn. Where no irreparable wrong will be done a plaintiff who has obtained judg- ment by default, lapse of time is not a bar to the application to set it aside ; Atioood V. ChirJieMer, 3 Q. B. D. 722 ; see earlier cases in our Courts, referred to at iiage 1931 of Rob. & Jos. Digest. A judgment will be set aside .it tluj instance of a aubsecjuent creditor if fraud he shewn : Balfour v. Eirison vt aLy 8 U. C. L. J. 330 ; Gvrdlestone v. Brujhton Aquarium Companij, 3 Ex.D. 137. Tlie following is a form of affidavit to Ikj allowed in to defend under this section : III tlxe Division Court for the County of A.B., Plaintiff, against C. D., Defendant. I, of tho of in the County of and Province of Ontario (nddition), make oath and say : 1. That I am the (or "one of the") above named defendant in this CJiuse. (If made by an Attorney or agent it may be in this form, "That I am the- Attorney [or duly authorized agent] of the above named defendant in this cause, and, when not otherwise herein expressed, that I have a personal knowledge of the matters herein deposed to"). 2. That the summons he.-ein was served on me (or the above named defen- dant, as I am informed and believe) on or about tho day of last past. 3. That notice disputing the plaintiff's claim (or the Statute of Limitations, &c. , as the case may l>e, as mentioned in Rule 20), was intended to be given herein^ hut (here sot out particularly the reason why such notice was not given in time and accounting for any delay). 4. That I have (or "the said defendant has") a good defence to this action on the merits, as I am advised and verily believe (or if made by Attorney or ! t , : f !• .' » ss. 80, 81.] LEAVE TO DISPUTE WHEN GIVEN. 103 80. The Judge, at any time before judgment actually ^fj^'" I" '''^' entered, (i) althoiii'h the time for giving such notice dis- *'"'« '"'fore . . . . , judgiufiit. puting the plaintiff's claim has expired, (k) may. on sufficient grounds shown, and on such tenns (l) as ho thinks just, grant leave to the defendant to disp\ite (m) the plaintiff's claim ; in which case the requisite notice disputing such (olaim .shall immediately be left with the Clerk, (n) and also sent to the plaintiff, by pi^paid lett3i* through the post oi* otherwise- 32 V. c. 23, s. 4- Trial. 81. In cases in which a trial ip to be had, the defendant -Judge way ... suinniarily shall, oa the day named (o) m the svimmons, either m person, dispose or Agent, " as I am instructed and rerily believe,") ami such defence consists iu this (here particularly shew one or more of the grounds of defence relied on, so that the Judge may see that there is something to l>e tried shr»uid the ai)plica- tiou be granted). 5. That the application to be made herein is not for the purpose of delaying tlie plaiiitiff in the recovery of judgment and execution against me (or "the said •defendant ") im this cause, but solely for the purpose of my (or the above named ^lefendants) being alloMed in to dispute the plaintiff's claim, and to defend thi.s action ou the merits aforesaid. Sworn, &c. (i) If tlifi Clerk is in the act of entering up judgment, it iB not "actually entered:"' Harrin v. Andrews, .3 U. C. L. J. .31. (k) This depends of course upon where defendant resides : see sections 70, 7I< 72 and 79, and notes. (/ ) See notes to eectiou 79, sub-seetioii 3. {m) Unless the claim be one within the 79th section, no notice of dispute Tvould be necessary ; and if a judgment ehould be entered in a suit where the claim was not within that section, it could be set aside, without shewing any inerits- {n.) "Immediately" here means trithia a reasonable time : Tomsv, Wilson, 4 B. & S. 442 ; and at page 454 of same case, ])er Blackburn, J., 14 L.J, N. S. 191 ; Maxwell on Statutes, 311 ; Forsdike v. Stone, L. li. 3 C. P. 007 ; Masseij V. Sladm, L. R. 4 Ex, 13. (o) No better expositi(m of correct procedure at the hearing can be given than iu the following words : " The causes entered for trial at a Court are set down for heaxing in the order in which they were in the first instance entered with the Clerk. If there be a jury ease, it is first disposed of ; atid, unless the Judge should see cause for proceeding differently, the other causes are then taken up iu regular order, and gone tlirough with. The adjourned cases that stand over from the last Court are usually put at the head of the list. It is not UHual to strike out a cause when the parties do not appear at the first call ; that is, if the Court has not been sitting for half an hour, or longer, vafter the hour ap- pointed for the Court; they ai-e commonly ' put aside for the present,' or placed at the 'foot of the list ;' but the practice in «lifferent Courts varies in this parti- cular. It is always advisable that the plaintiff should be present at the opening of the Court, or immsdiately after, even though his case should stand low on ,'.;«^'.- ^p Nil ^, .« 104 JUDGE MAY NONSUIT. [8.8], ,M * • if;!l 1 'c - I" ■ ;.|;-v fit ■•:'■> ■ !i! *;"■: I.: ,«'':(■ ■Vt!', -■ ,■0.1,*''-' ■ ;,"..rii- ■ V<V .. /*,-.. .•.■■^■••... ■" , l:-;. , HIV ■ cause or nonsuit {iluiutiir. or l)y some jjerson on his bchiilf, {p) appojir in tlie Court ti> answer, and, on answer being made, tlie Judge shall, without, further j)lead*ng or formal joinder of issue, pixweexl, in u summary way, to try the cause and give judgment ; and in case satisfactory proof is not given to tlie J udge entitling either i>arty t(j judgment, he may nonsuit (7) the j>laintift". the list, for all those previously entered may l)e put below Iiis'., or be otherwise disposed of. As to the <lefeu(biut, it is essential tliat he sliould lie jiresent, for the ease may be ealled on in bis absence and ju<lgment by default pass against him. Punctu.T.lity is necessary to dispatcli ; and if parties suffer from their own negligence, they have no right to complain. Tlie j>laintitt" may appear by Attor ney or by agent, if be finds it inconvenient to api»ear j)ersonally. Any neigli- bour or menjber of the plaintiff's family may act as agent ; but an aj)|»earanei' by some one must be made on the plaintiff's ])ehaif : " 2 IJ. C. L. J. (il. { 7>) At one time no one l)ut a Barrister or Attorney conld ap[xjai for another in Division Courts (In re. The Judijc of the Count y (\nirt of Ytirrk, .'?! U. C II. 2(57) ; but the statute of 35 Vie. caj). 8, auowed "any person" to appear : see sec. 84. Counsel has a right to be heard before a Court of Revision : per Hughes, J., at page 295 of G L. J. N. S. (q) In the higher Courts, a jdaintiff cannot be nonsuited against his will : Cormr vt (d. v. lieeil, 17 Q. B. r>4(). But this section gives the jM»wer to a Judge to nonsuit in Division Courts, even against the will of a plaintiff; so also in jury eases : Ride 122. In an action of contract, a plaintiff may be nonsuited as to some or one of several <lefendants though judgment by default has been entered against the otliers {lienei/ict v. Bnultoii, 4 U. C. B. 9G ; McXnh v. WaijHtaf, 5 U. C. K. 588) ; and, if a joint contract, the nonsuit to thtwe de- fending would enure to the benefit of those who ilid not defend : per Robinson, C. J., at page 97 of 4 IT. C. U. ; see also Couiintrc'ut! Bant: v. Hmjlien ei nl., '.i U. C. R. 301 ; s. c., 4 U. C R. It>7. If a defendant moves for a nonsuit and afterwards examines witnesses, the plaintiff is entitled to any benefit which he can obtain fixjm the defendant's eWdence : Brock v. MrLeoH, Tay. R. 398 ; Allen V. Careij, 7 E. &. B. 4<i3. A plaintiff may be nonsuited on an inter- pleader issue : Bnjmn et at. v. Ctamlinun, 7 U. C R. 198. There may be a nonsuit after payment of money into Court (GutterUhje v. Sviitfi, 2 H. B. 374), or after a plea of tender : Anderxon v S/tatr. 3 Bing. 290 ; Oaf-Tn v. Monjan, 8 L. J. N. S. 248. A plaintiff may take a nonsuit at any time before the pro- nouncing of the verdict by a jury, but not after it is i-endered juid licfore it is recorded : Van Allan v. Whffe et a(., 1 C. P. 459. A nonsuit should be entered unless there is evidence on which a rational verdict for the j)laintiff could be sustained: Campbell v. H\ll, 23 C. P. 473 ; Irwin v. Maniitidn, 2()(!. P. 455 and and 460, ^«?', Gwynne, J. ; see Duhlitt, Wi.rkl)w d.- Wexfurtl ItaUiraij Conijjani/v. Slatterif, 3 App. Cases (H. L. ), 1155. If a plaintiff take a nonsuit in deference to a Judge's ruling, he can apply for a new trial (Burn v. Bferher, 14 C P. 415 ; Hatton v. Fink, 8 U. O. R. 177) ; but not if be accepts a lum-suit rather than go to the jury on an unfavoui-ablc charge (Mc^/rat/i v. <7«r, 3 U. C. R. .332). or when he takes a non-suit during the charge : Fniser v. North 0.vfonl ami West Zorrn Plank Bond Com/to nif, 15 U. C. R. 291 As to the right to move when the Judge's ruling is acquiesced in either on a point of law or on the Evi- dence, see Stoker v. The Welland Ha if nay Comjmw/, 13 C. P. 386 ; Wood v. Boioden, 23 U. C. R. 466 ; Tai/forv. Rose, 24 U. C. R. 446 ; Miller v. The Cwpora- tion of Hamilton, 17 C. P. 5i4 ; Conwaji v. Shihhf, 39 II. C. R. 519. In a jury case, if a plaintiff 's coimsel should decline to take a nonsuit, the Judge should properly refuse him the right to address the jury, and should charge the jury to find for defendant: Storey v. Veach, 22 C. P. 164. The evidence given s. S-2.1 JUDGES DECISION FINAL. 109 iiml the plaintiflT may, before verdict in jury Ciises, and before jiiili,nnent pronounced (/•) in otlier cases, insist on being nousiiited. (.s) C. S. U. C. c. 19, s. 84. H'i. If on tlie dav named in the summons the defendant Pn^'f 'lings 111 I'lISC (Ic- (loos not appear, or sufficiently excuse his absence, or if lie f''"'"!'' ''•"'» ' ' ' '' ' not ainiear. iio;,'loots to answer, (t) the Judge, on proof of (hie service of the summons and copy of the plaintirt"s account, claim or (h'niiiud, may proceed to the hearing or trial of the cause on the part of the j)laintiff only, and the order, verdict or jiKlgiiient thereupon shall be final and absolute, (//) and as valid as if both parties had attended ; and, except in actions of toit or trespass, in case of the personal service (v) of the by a ilefendant may be used for the purpose of a nonsuit {/xt \jOtA Chelmsford, in aihrni V. MrMnlh'it, b. R. 'J F. (J. ;«!» ; Stun'H v. Vmch, 'I'l ('. I'. 17«» ; Ihiiiii'l V. Afifroixilifdti HdUintji Coni/xiiii/, \j. II. 5 H. L. 4")); Imt the rule niiw ;iiij)uars to lie to submit all reasonably (Usj)ute(l faets to a jin-y : ,fi)/iiisiiii v. I'i-(iniir'int Iiimiranrc Cdhijuuiij, 27 < '. P. 4()4 ; J>iil)f'iii, H'/c^Vo;/' <l' Wr.ih.ril lia'tl- irii/ ('i)iii/iinii/ V. Sbttt.erji, 3 App. Cases, lb")5. Where two defendants defend an iiL'tion on a joint contraet, there eannot be a nonsuit as to one and a venliet iVf^ainst the otlier : Rewti v. lirutoii, 2 M. & V. 12; McK(tJ) v. WoyMof, 5 U. V. W. 088. (r) A judgment may be said to he " pronouneed " when the Judge publicly and (ijienly declares the decision of a case : Worcester, 1140. (x. With the object, if necessary, of suing again. lu Oitthwmtc, App. , Hud- situ, Itesp. , 7 Kx. 880, it was lirld that a plaintiff in a County Court case has a riglit to be nonsuited at any time hefore the jury have delivered their verdict ; or, it the cause be tried by a Judge alone, at any time l>efore the Judge has de- livered his judgment. This is efpiivaleut to "judgment pronounced" in the section in (piestion ; and it is submitted that if the Ju<lge delivers his decision on the case, a plaintitt" cannot take a nonsuit, even if the judgment so delivered is not notod by the Judge : Van Allan v. W'ujlo H al., 7 0. P. 459. Of course a juilginunt of nonsiut entitles a defendant to his costs. (/! A defendant served with a summons should make it a point to be at Court not later than the hour fixed b)r opening the sittings, for if proper service of tb.e summons is effected the Judge may proceed with the ease in his absence. If necessary to call witnesses, or in the event of the claim being one for which the -Fudge (!ould, under the latter part of this clause, give judgment by default, the defendant might in either case, from his own neglect or inattention, have judgment I'ecorded against him. (*() The policy of the law is, that there should only be one trial of a cause, and that a verdict or judgment should not be disturbed nnles.'i it clearly aiipears to be wrong: JIoopT v. Christoe, 14 C. V. 121, jxr Richards, V,. ,T. If there was no jirovision for granting new trials in Division Courts, no power would exist in su<;h Court to grant new trials: Hey. v. Dutji, 13 U. C. It. 398; (hi'dt Xorthern I*;/. Co v. MoMop, 17 C. B. 1.S8, per J ervia, C. J. The judg- ment is to be " final and absolute,'' subject of course to a new trial being granted. {v) It will be observed that judgment can only be entered by default oa "personal service" being mule. Shouhl a Summons for a claim less than $8 not he personally serveil, a plaintiff would not be entitled to judgment without •>: /•■ - j '.'*' - •■■■ **. ' r.. '_••■■ .• - A. . : yOr ■ «■ • » '- : ^ ' . ■* ■•' . ^ . 1^ ^ . i * •..■'■ j\ • ' '■ ; . .■*■/.■- y ■ >• ' ■ ■^•... 'i ■ ■ ■ ■'■■ S' 1.: %•>'•'-» >'M\' '■■■■ r^ 'wp lOG JUDGE MAY ADJOURN HEARING. [s. s;] .1 ' ^ .-i i-i, -f: ■I .''it- ■»,.«, HummonH and of detailed particulars of the plaintiff's claiiu, the Judge may, in his discretion, give judgment without further proof. C. S. U. C. c. 19, s. 85. 8*1* lu case the Judge tliinks it conducive to the ends ..t huariugof justice, he may adjourn (lo) the Jiearing of any cause in ordci to permit either party to summun witnesses or to pi'odtuf further proof, or to serve or give any notice necessary td JiKlgu may Tlic It proof. It will be observed, too, that a plaintiff, in an action of "tort or trespass," cannot obtain judgment by default, nor in any ease, unless "ilcfitl/nl particulars of the plaintiff's claim" have also been served. It is said "tlie •Judge may, in his ilinrirtiun, "give judgment without further proof." usual practice is to exercise the discretion. (w) A wide discretion is here given to the Judge: see also Rule 140, should only be exercised when a refusal to adjourn would work injustice uidess l>y consent of parties. If the power of adjournment had not bi(.n conferred by statute, it is doubtful if it could be exercised : Ii<'(f. v. Murrm/y "27 U. C. R. 134; Hfiij. v. G. ]V. R. Co., 32 U. C. R. nOO. It is submitted 'tliat whatever would be a good ground for postponing a tri.al at N'n<i Prim woidd lii' a good ground for adjournment of a cause in a Division Court. No order is necessary to ])c drawn up unless by direction of the Judge : Rule 1.39. A caust will not be postponed at Nisi Priiin luitil after the trial of an indictment tcir perjury in a matter relating to the cause: Juhiiwn v. Wardle, 3 Dowl. .loO. .V trial was [lut off bjecause a material witness was prevented from attending liy fraud of the Attorney for the opposite party : Tiirqiinnil v. Datoson, 1 C. M. k R. 709. It is the practice to accede to an application to postpone the trial (if a cause on the ground of the absence of a material witness when the application appears reasonable: Stenciis v. Edimj, 2 F. & F. 136. If a person allows ii witness to leave the country, knowing that his evidence is material, he cannot have the trial postponed on that account: Solomon v. Howard, 12 C. B. 4().S. A Judge has a discretion in refusing the postponement of a case, notwithstaml- ing the abaence of a witness : Turner v. Meri/weafher, 7 C. B. 251. A trial will not be i)08tponed where a witness is in defendant's employ, and he has neglected to subpama him in time and allowed him to leave : Wriijht v. AVOujff'ie, 4 C. B. N. S. 441. Unless an endeavour has been made to procure the attendance of a witness, a postponement will be refused ( Ward v. Wilkinson, 2 F. & F. 173) ; or if it appears that no application has been made to the witness to know if he will attend: Worsley v. Banrett, 3 Dougl. 58. If a witness is kept out of the way by plaintiff, a trial will be postponed : Duherhj v. Gunnbuf, Peake, 97. If witness is out of the country, and it does not appear that there is a likelihood of his returning, the jjostponement will be refused: Bex v. D^Eon, I W. B. ol"*, Sometimes the application will be refused if the party applying has conducted himself unfairly, or has been the cause of any improper delay : Saunders v. Pittman, 1 B. & P. 33. A trial will not generally be postponed to enable a defendant to prove a plea in abatement: Wadv v. Birmingham, 2 Chitty, "). The illness of defendant's Attorney was held a good cause for postponing a trial (Half ley v. Grant, Sayer, (33), but not where Counsel was unprepared: Colchrvol' V. Dobhs, 3 Burr. 1319. A party should apply at once (see Rule 140), other- wise he would have to pay the costs of the opposite party in preparing for trial: see Z)afe v. Heald, 1 C. & K. 314; Ward v. Ducker, 5 M. & G. 377. The party obtaining an adjournment on payment of costs should take the means at «»nce to have costs taxed: Walkr v. Joy, 16 M. & W. 60; Brega v. Hodgxon, 4 P. It. 47. When application is made on the ground of the absence of a witness, it ii Qot enough to show that the witness ie material, and may and probably m-:h~- ss. 84, 85.] ALL PERSONS CAN ACT AS AGENTS. \(\'i »'nal>!;' such party to enter more fully into his case or defence, or for any other cause which the Ju<l^'e thinks reasonable, ii|iou sucli conditions as to the payment of costs and admis- sion of evidence or other equitable terms, (x) as to him seems meet. C. S. U. C. c. 19, s. 80. H4. Any person (y) may appear at the trial or hearing of All persons , oniiiowt'i-fd liny cause, matter or proceeding as agent and advocate tor to iu t us any party to any such cause, matter or pix^ceeding iu the liiiMHatin lu Division Courts. 35 V. c. 8, s. 1. ciu'rtK." 85. The Judge or acting Judge may, wherever in his J'l'iKf "my .... .... incvcut any opinion justice appears to require it, (z) prevent any person i>ii« frum will give important evidence, or to swear that his evidence will he mi ^.eriftl and neci'ssary, without shewing that it will assist the case of the person making the application: Kerr v. (.'. T. li. Co., 4 I'. K. 303. In Spcn-^ v. (/. \V. U. Vo., (5 I'. U. 170, it was held, in an action for a personal injury, that the inability pro- perly to calculate the damages to the plaintitt', owing to suthcieut time not having elapsed from the receipt of the injury, was a sufficient ground for post- jioniiig the trial. The Judge may under this section ailjuurii the hcariixj of a ciiii.il' from the regular sitting of the Court to his chamliers, within the territorial limit.i of the division ; and such adjournment of the hearing of the cause is in effect, if not objected to by the parties, (iii wljottrunn-nt of the Court to hear tlinf CUM : 111 re Biirrowes, 18 C. P. 493; see also notes to section 71), and an artich' at page 35 of 3 L. C. G., on the adjournment of causes for the purjwse of putting Iq statutory defences by leave of the Judge. (.') It is not unusual to require the party applying to admit some matters of formal proof (Brown v. Murray, 4 D. & K. 8.30) ; and, if the plaintitt" is likely t»i lose his debt, payment of the amount in dispute into Court is usually made n condition: Lush's Prac. 537; see also Dak v. Hvald, 1 C. & K. 314. AVhat- ever terms the Judge thinks just can be imposed. His discretion in this respect should be reasonably exercised, and not oapriciously : Maxwell on Stat. 100. (.'/) It is submitted that this is wide enough to include the case of a woman appearing on behalf of another person (see Rev. Stat., j»age 4) ; but it is proba l)le a Judge would not, under section 85, allow it to become general. On thi.s subject, see Cohhelt v. Hudson, 15 Q. B. 988 ; and notes to section 81. A party can appear as his own advocate, an<l be a witness in the cause too (Cohbett v. Hudson, 1 E. &. B. 11) ; but a plaintiff or defendant will not be allowed to ha heard in his own case after counsel has addressed the Court {Xewton v. Chaji- I'ln, 10 C. B. ,356); and a Barrister is in no better position than any one else : ll>. Where defendants at a trial appear by different counsel, it is a matter for the iliscretion of the Judge, to be exercised under all circumstances of the case, whether more than one ought to be allowed to address the jury : Nicholmn v. Brooke, 2 Ex. 213. As to the authority of a counsel to bind his client, seo ■^Irautis V. Francis, L. R. 1 Q. B. 379, and cases cited ; Jiroion v. Blackwell, 2(» C. I'. 43, An advocate can act as such in a cause, and as a witness as well : Davis V. The Canada Farmers' Mutual Insurance Comjmny, 39 U. 0. R. 452, But see remarks as to the impropriety of such a course : lb. (z) It is submitted that under this section a Judge could even refuse to allow a Barrister or Attorney appearing iu a Division Co\jrt case aa *' agent aud r ^m » ^ t .-' ' ./ ■ ■• ^V..^' .• ■ ■■•■• ' '. ,;;r,:«<.,3 ;<'.■• •. J ','. ■'V " i '.i^ ' • '"jj ('•,■■ >■'•■' . ' • k. '. " :]\^* .-. VS'. :*- •IV *i?V''-s"'.''" ■■■■•'" *5- . I 'V JL • '» > \ »-• v' • • v.*''**'^ 'At- •« ■ ..*"'\.!t-.:»; V'Vr . -' ■••■'•••■'>•.*'■■!> »^" .•I' ..•.V-;---,t!-.I. • ;;. ;■'<*• .•■'.•'• ^ . ::-:^A _ '.; ...-■.r''.'-.,f« ;■',•'• . ■■•. ,■:>•.•* •-.,.<: ■.. 1 •J ,■'■■'.'•■'■■■■■ i miM^' • 108 TKNDF.H AND PAYMENT INTO fOrRT. [s. «0. IK tin^ as fiojn jipiM'iii'iiig lit tho trial or lioaring of any canso, iiintttr iiilvonitc ill or tu'oceodiiiLC in the Kiiiil Court, as a''tMit and ailvonitc lor ,,,.,.{.,1,1 I .-. » n insrs. jiuy party or parties to any such cause, nuittcr or procf.'oding. 35 V. c. H, s. '2. ■«,» Tkndkh oil Payment ok Money into Coukt. I'li'rt of HO. If the defendant in any action ot debt or contract (n) Viiviiii-iit (if Itroujfht a<,'ainst Jiim in any Division Court, desires to ]ilcii(I Court. a tendor (ft) before action brouglit, of a sum of luoimy in lull satisfaction of tho plaintiff's claim, he may do so on liliii^ his plea with the Clerk of the Court before whieli lie is suniiiioiu.'d to a])pear, at least six days before the dav ap- jioiuted for tin; trial of the cause, and at the same tiini' ])aying into Court the amount of the money mentioned in such plea ; and notice of such plea and payment shall lie forthwith communicated by the Clerk of the said Conn to the plaintiff l)y ])Ost (on receiving tlie necessary ])ostage^, or by sending the same to his usual place of ibode or business. C. 8. U. C. c. 19. s. 87. advocate." The power is not given to prohihit generally, l)ut at " trial or licir- ing of (1111/ fdiisi', i/KiZ/cr or /ir<)r(('iliii(i." If a Barrister or Attorney should mi.-*- oonduet himself, eitliei' toward.s the Judge or a witne.s«, or otherwise, it is siili- mitted that the Judge would not only have the power, hut it would he liis i/n/i/, to j>revent sueh person from further appearanee in the ease ; .iml this too u\ addition tf) any line tliat he might find it necessary to impose for contempt ui < 'ourt under section *J17. (n) It will he observed that the statute does not apply to any action of tort, hut to actions in "<lel)t or contract " only. It is suhmitted that in any action ('./• rontriict.u, in a Division Court a plea of tender is admissible, even where the damages are unlin\iidated, and that Dcnrlc v. Barrett, 2 A. & K. 82, does not api)ly, as it was decided under a ditt'erent statute. {h) "The i)rinciple of a ))lea of tender is this, that the dcfend.ant has always lieen ready at all times to pay upon rerpiest, and on a particular occasion offered the nnmey :" Jfcxbfli v. FiUi'cttt, 11 M. & W. .Soti. " The defence of tender consists in the defendant having been always ready and willing to ])ay the debt, and having tendered it before action to the plaintitt, wbo refused to aecej)t it. It is a performance of the c(>ntract on the part of the defendant so far as he could perform it, and was not pj'evented by the plaintiff:" HuUcn k Leake, 8rd Ed, (598. A plea of tender (like a plea of payment into Court) o]ierate8 as an admission of the special contract stated in the claim to which it is pleaded : C'o.r v. Jira'ui, 3 Taunt, {(f). It supersedes the necessity of she\Aini,' that a guarantee was in writing: Middl ton\. Brewer, Peake, 15. It aihnits the defendant's liability on the contract to the amount tendered, but no more: Willin v. Lan<iri<l<ie, 2 H. & W. 2o0. Tender can only l)e pleaded in Superior Courts where the defendant has not been guilty of any breach of his contract (Haine v. Pepfoe, 8 East. KJS and 170, per Lord EUenborough) ; but it is donht- ful if uucb is law under tho words of thia section. Thus, where a debt was pay- . » . ; B, 80.] TRXDEIl DY AND TO WHOM MAHE. 109 nlilc (III .1 iliky (sortftiii, CM on nii iiooiitimoo, a toiider on a Hulis«([iient iliiy wuh In III nil :iunwi.'.v; I'lmli' V. 'J'lmihrii/i/r, '2 M. &. W. '22H; Jtohii' v. /.nrhni, 10 Kx. 77((. W'liLTo ii liill i<r noto is ii.vy;kl)lo on duniiind, a ti^ndcr iiny tinii' iK-tuie action jsgiMiil; \iir/iiii V. Kl/uiii, 'J M. it \V. -KJI. jVn t^uilorsfr oiui tuniUir utter <lis- lioiKiii'f tlif hill: JJyh'K on MillH, Uth K.l. ;{<»!); %,/. c.s v. A»'«hs 1 (!. M. & R. ;j7<>; Wiilhr V. I{iini(n, "> 'I'iniiit. 'J+O. 'I'liis ilffiuou nuist uMtlur this wi-ction l)u [lilt ill writing, imil it is noi.'csMiU'y to iiVcrtliiit tlu' (Uit'emlnut w;is " ivlwiiys naily ;iihI willing :" 1 Wnis. Siiuuileis, .'Wo. ('_'); W'lii/ln.l- \-, Si/idrc, I'J NIoil. SI ; liniii'l/ V. /'(irl " Irish (;. L. I!. Hit Kx. if iik'adcd to the wlioU' ciiu.si; of iiutiiiii without ont of tlu; money intn Court, thu ( 'Irrk could, in uctiniis uiulrr si'i'tion 7ii, woter up jinlgniunt l>y dufjiult ; I 'I'idd'a I'l'ivc. (il J; ('hitj'iiuiii v. U'lvks *i C. M. it IL ();<;{. In ivn iiction on thu common counts, if the pliiintitl ri'licH on tho doht buintj piiyiihlo on iv piirticuhir diiy, and tlu; tcinh r iu)t made ill tniu', ho nuist shew it: Smith V. Manin r^, 5 ( !. ]i. N. S. ti'.i'2. Hij iiiid fit wlioiit.. — A tender of money to an agent or servant niithorisid to rtciive payment is a good tender: (luuilhuit/ v, Ulnrith, 1 Camp. Ml. .So 'h tender to a managing elork good, tlumgh ho should have reecivotl orders not to aiOL'Iit of it: Mdjl'iit v. /'nrncii.H, ,"> Taunt. .SOT. \N'hero an Attoi'iiey sends a luttiT to demand and the debtor makes a tender to him, it is a good tender, uulvss the Attorney disclaims Ids authority at the time; and if the Attorney is alisuiit, a tender to a clerk at his oHice is sullieient ; Wihnut v. Sntif/i, .'{ (,". it 1'. 4.').'t. Where a person demands payment of moiu'y at his office, it amounts to asjieeial authority to his tJlerk there t > receive it; and in the absence of the Attdi'iiey a tender to his Clerk is good, although he states that he is not .■iutliori/ed to receive the money: Kir/on V, liro'itliirnUr, 1 M. & W. 'M[). Hut witiiniit any previous demand, a teiulcr to the managing clerk of the plaintitl's Attorney, who d'sclaiins autliority to receive it, is insufficient: liiiiii/iani v. AHimrl, 1 N. & 'A\)H; l)ut see Fiiirli v. HihiIikj, Weekly Notes, .March 8, iSTif, C. P. IJ. ; "/' V. Jh'thirinijtoit, 1 C. & K. SO. A tender liy an agent of ;i (k'l)tor of t .jh; sum demanded, by jjulling out his jiocket book and Mll'fi'ing, if the creditor woulil go into a neighbouring public house, to p;iy it. wliicli the latter refused to take, altliough the agent was only authorized by the (khtiir to tender a sum short of the whole sum dem.anded, anil otlered the rest at liis own risk, was hfld a good tender: Ri'«<l v. O'o/driiKj, 2 AI. & .S. Hii. A tender to the Attorney of the plaintitt", so long as he remains such, is gofid : C'rovr V. Pilliii;/, 4 B. & C '2(5. So also is a tender good if made to a person in the (itticc of the jilaintiff's Attorney, to whom the defendant was referred by a oleik in the otlice, and who refused the tender <mly as being too little, without .shewing who thivt person was : Wilmvt v. Sniifli, Kiij>ra. A tender to a jier- sua ill a merchant's place of business, who a[)peared to be conducting it, is good, though in fact not entrusted to receive money: liarn'tt v. Ih'ctr, M. & M. 200. It is otherwise where the payment ia not connected with the plain- titl's business, but quite collateral to it: Satiikrson x. Bell, 2 i~). & AI. '^04. Where the money was l)rought to the plaintiff's house, and delivered to liis servant, who appeared to go with it to his master, and returned, s.aying tliat \m master would not take it, it was hchl to be evidence from which a tender might be inferred: Anon, I Esp. 349. A tender of a j^irtuershii) delit to one of several imrtners is good: Doughu v. Patrick, 3 T. K. 083. If a man is indebted to several persons in different sums, and, when they are all together, tenders them one gross sum sufhcieut to satisfy all their demands, which they refuse to receive, insisting on more being due, this is a good tender : Black v. Smith, Peake, 88. But where a party has separate demands for unequal sums against several persons, an offer of one sum for the debts of all will not sujiport the defence, thnt a certain jwrtiim of this sum was tendered for the debt of one: Strong v. Harrcij, 3 Bing. 304. A tender of a cheque is good, if not objecti.'d to and the drawer has funds to meet it: Koscoe's N. P. 674. Interest .,• < • .< .«• • •, ■ ■ . ■' ■ ' ■.■■ ---^'h- ■« r * '•'V ■'.I ■* •:' '.J •. •-* " ■.■.'•.•■ii .'■ .'» " I . ,"1 ' ' ■ .■(■ •V •■.,1v,H..;-.':.v.Vi,:;. _ •*;,■•'••'•''' ''^ 10 HOW AND WHEN TENDER MADE. [s. 86. . v"' *■ ".* ■ ■ ■ 1 * *■ ;■■, :<■ ... rf/ ' »'.. "k' ** t;e;v9cs to run after a tender: Bylea on Bills, 9th Ed. 2f)8; Dent v. Dunn, H riinip. 29G. a-fore nrtion hronqht. — If made any time before summons actunlh/ issues, it is ;,r()(.d' (Bni/i/s V. Call-rlji, 8 T. It, (529 ; Klrton v. Braithwaite, 1 M. & W. 'MO), .md the debtor caniiot l)e charged with a letter from the creditor's Attorney, ( Ih. ) ; and if he issue vhe writ because tlie debtor will not pay for the lettur, Ho'inan v. Stephens, G Jur. N. S. 12-4 ; Ca I lie V. tlie summons can be set aside Vonlton, 1 H. & C. 7G8. Mode of making. — A tender, to be strictly legal, should be made in legal coin : Pvlijians v. Oliiwr, 2 C. & J. 13. Up to $10 it may be made in silver ; ,'{4 V"ic. cap. 4, sec. 7 (Can.). Bank notes are a good tender if not objected to : Wrhjht V. Jtend, 3 T. R. 554 ; Tileij v. Courtier, 2 C. & J. 16, note (c). A ten- der made in the form of a cheque in a letter is good where no objection is made to the quality but the (quantity of the tender ; and if the letter contain a n- ■jueHt for a receipt to be sent back, it does not vitiate the tender, it not being a condition: Sannder/t v. Graham, (»ow, 111. An offer of money by a debtor to a creditor, and a request by the latter for a day's delay before receiving it on ac- count of an accident, are not a tender and refusal of the money, and do not dis- charge the debtor : Jenki/nn v. Brovm. 14 Q. B. 503. A tender to an executor may be good, though he lias not proved the will, provided he afterwards proves the will, and takes upon himself the burthen of administration : Add. on (con- tracts, 264. Production of the money, — There must be production of the money, or tliat dispensed with by the express declaration or equivalant act of the creditor : Thonina v. Evans, 10 East 101. A tender is not good where the money is not in sight, but the witness supposed it was in a desk and did not see it produced ; so that it did not appear that if the party was wil'ing to accept the money it could at once be paid ; the money should be at hand and capable of innuediate delivery : Olasscott v. Daij, 5 Esp. 48. But where more is claimed to be dv\e, it is not necessary to produce the money tendered : Black v. Smith, Peake, 88. Where the facts were found to be that the defendant's Attorney called on the plaintiff, Jiiul said, " I come to pay you £ I 12s. 5d., which the defendant owes you," that the Attorney put his hand in his pocket, but did not produce the money, the plaintiff said, " I cannot take it, the matter is now in the hands <)f my Attorney," held, not a sufficient tender : Finch v. Brook, 1 Bing. N. C. 253. A tender made with the money twisted up in bank notes in the person's hand, he stating how much, and not shewn to the party, is good : Alexander v. Brown, 1 C. & P. 288. If the plaintiff saya he can't take the money, when an offer is made to go up-stairs and fetch it, such offer is a good tender (Hardiinj v. Davi.'i, 2 C. & P. 77) : but if it did not appear that the person tendering had the money up-stairs, it might not be : Kraus v. Arnold, 7 Moore, 59. In this case, where the defendant ordered A . to pay the plaintiff £7 12,s. Od. , and the Clerk <i the plaintiff's Attorney demande I £8, on which yl. said that he was only or- <lered to i)ay £7 12.s. Od. which f um was in the hands of B., and B. put his hand to his pocket, with a view of pulling out his pocket-book to pay £7 12.S. 0'/., Imt did not do so, by the desire of A., but B. could not say whether he had that sum about him, but swore that he had it in his house, at the door of whicli he was standing at the time ; held, that this was not a legal tender, as the monej should have been produced to the Attorney's clerk : but see Long v. Lon;/, 17 < irant, 251 . Where a vendor admits a tender Avould be fruitless, it is unnecessary : .fackson v. Jacob, 3 Bing. N. C. 869. If a party tells his creditor that he will fiay him so much, and puts his hand in his pocket to take out the money, but lefore he can got it out the creditor leaves the room, and the money is not pro- ducetl till he is gone, it is no tender : Lentherdale v. Siceepstone, 3 C. ■& P. 342, Where tlie plaintiff (Usputes the quantum to prove a tender, some money nuist be proved to have been produced, though it is not necessary to prove the exact 86.] TRNDEU TO BE UNCONDITIONAL. Ill sum i Dickinson v. Shee, 4 Esp. 08. A trader who, mider a trader de1)t()r sum- imms, had signed an admission of deVjt, went to his creditor Avitli the amount of it in liis pocket in money, and tohl the creditor that he had come to pay that amount, the creditor said it was of no use, as it was too late, and that the (lebtiir must see the creditor's Attorney ; it was held that the production of the moucv was dispensed with, and that the tender was good : Danks, Ex parte, 2 \)e. (i. M. & G. 936 ; s. c. 22 L. J. N. S. Bank, 73 ; see also Jieijiiolds v. Allan, 10 U. C. K. 350; }Ve.itern Amirauce Company ^t. McLean, 29 U. 0. R. 57. Wliere, on tendering payment of money due upon a mortg<age, a receipt was re- ijuiied, and the plamtiff did not object on that ground, but gave a different reason for refusing the money, he.kl a good tender: Lockrid<fe v. Lacey et al., 30 U. ('. R. 49-t; s«e also Lla>lu ef, al. v. Monjan rt al, 23 C. P. 517. In order to constitute a legal teniler, the money must either be produced and shewn to the oreilitor, or its production exjjressly or impliedly dispensed with : Mathewn v. A'(7///, 24 C. P. 598, and cases there cited. Where a tenant said to a landlord, "' Here is the rent," which he had, and told the defendant he had in his right hand in a desk, but did not produce it, or shew it to the landlord, who said untiling, and left the promises, keld, no evidence of tender or dispensation of tender : lb. Ri'ipiir'uuj change. — ^A plea of tender of £20 is supported by evidence of the tender of a larger sum, though such larger sum was tendered as the sum which tlie creditor was to receive, and not as the sum out of which he was to take the t''2() (Dean v. Jamen:, 4 B, & Ad. 547) ; but a tender of a larger sum, reijuiring change, is not a good tender of a smaller sum : liuhinmn v. Cook, 6 Taunt. 336 ; Bcttcrhee v. Dads, 3 Camp. 70. A tender of £2, to pay £1 13.s'. Od., is good, if tlie plaintiff objects to receive it only because he is entitled to a larger sum, and not on the ground that he has no change: Cadman v. Luhhock, 5 D. & R. '_'8!). A tender of part of the claim, and a counter claim for more than the full amount of the debt, is not a good tender : Brady v. Jones, 2 D. & R. .305, and see Holland v. Phillips, 6 Esp. 46. The defendant owed £108, demanded by the Attorney for his creditor ; he sent a man, who laid down on the desk jna hun- (hed and lifty sovereigns, out of which he desired the Attorney to take the principal and interest, but the Attorney refused to do so, urdesa a shop account due from plaintiff to defendant was fixed at a certain amount. Held, a good tender of the £108 : Bevans v. liees, 5 M. & W. 306 ; see also Oretton v. Mees, 7 Ch. D. 839. Demand of a receipt.— Viomg with money in hand to make a tender, and demanding whether the creditor has a receipt stamp, and receiving an ansM-er in tlie negative, b"t not offering the money, was held not a tender : Jiyder v. Towii'-end, 7 D. & R. 119. A tender is not good if accompanied by a demand for a receipt in full of all demands (Griffith v. Hodijes, 1 C. & P. 419) ; or where a leceipt was demanded that the sum tendered was the ;)alance due : Hiijham V. Bnddely, Gow. 213. But if the creditor refuse to receive the money on account of more being due, he cannot afterwards ol)ject that a receijit was demanded : liiehardson v. Jackson, 8 M. & W. 298. Where the words of a tender were, " I offer you £7 \^s. M. as the balance of £35, and request a receipt in full," it was held invalid as being condititmal : Foord v. Noll, 2 Dowl. N. S. 617. A tender of a quarter's rent, coupled with a demand of a receipt to a particular day, the contest between the parties Ijeiiig whether one or two i|uarters' rent was due, is not a valid tender (Finch v. Miller, 5 C. B. 428) ; but the demand of a receipt simply for the amount of money tendered does not in- validate the tender : Lockridije v. Lacey et al., .30 U. C. R. 494. Must he unconditional. — A tender must not be clogged with any condition [Peacock V. Bickerson, 2 C. & P. 51, n. ; Jennings v. Major, 8 C. & P. 61) ; so that if the creditor takes the money, and there is more due, lie will not l)e precluded from bringing an action for the residue : Mitchell v. King, G C. &, P. '^V.,.\ . •■•r ''.'■♦■t"'»": ■•*«?,. ''v '•',' ,"■ ■ ■: »•■...■•■-;- • •.-,* X'^ . -i: .-••^..•iir.:-.. • • i..' -.:-*:«-? .'■•it:-;. •■'•:■■ •., P^^:' J »■- ■•"4';; -$:'^'^- -"•' -'r--. ■ '.'.^X-^' ^i' ■ ' uS'- '.. ' K '*,, ■ t. ^i^y' *» '*'• ■" •?. ■,.• **.!»•• \-:'ti.' > ni ■■: •( ' '•■••'.•'* ,<:'•* '"'1 »* • " .A, '■.■'•*.V- •" t *• JiV -- * " f"?*i-\' ■"■■ ^ • ' • '>^' V . .^■■•^■: ■ • H ■''■:(: ^" ill . ■ ''1 i^ !' ; ,■ ' "M ,,, . T'; • ■>.' .. ■fl. ■' .t* 112 TENDER UNDER PROTEST, [s, 8G. 237. It ia not a good tender if by acceptance the creditor would make an admission : Ifantinjfs (Miiniitw) v. 'J horlcj/, 8 0. & P. ^)lli. Where a dtfeiidant was proved to have said, "1 liave called to tender £8 in settlement of tlic account," it was held to be a question for the jury to determine the meaning of the language (Eckstem v. Jifiiiioliln, 7 A. & K. 80) ; and it is for them t(t say if from such language tlie tender was oonditional or not : Marsden v. Uooilc, '1 ( '. & K. \'^'^. An offer to a person to "take those ten sovereigns in full of liis demand " is not a good tender {C'haiiuiKtnt V. Thornton, 2 C. & P. 50) ; or to take any certain sum in full of a demand (Strontj v. Harcey, 3 Bing. 304) ; or aa tlif whole balance due ; I'Jntn.i v. Jadkinx, 4 Camp. lof'. The Attorney of A. put down tl8, and said to the other party, " I tender jou £18 for Mr, J/." ; //< A/, a good tender : JcnnuKj-s v. Major, 8 C. & P. 61. An offer to pay a sum " as a settlement" of a demand is not a good tender: Mitchell v. Ki)t<i, 6 0. & P. 'JH7. Where the defendant's evidence was, "I went to the plaintiff and told him J canie with the amount of Oliver's (the deferulant's) bill ; the plaintiff said \\v wjuld not take it, as it was not his bill ; I offered it to him as the anu)unt of his bill ;" hfld, a good ten<ler : Ifeuivuod v. Olivtr, 1 Q. B. 409 ; see also Ball v, Ptirkcr, 2 Dowl. N. S. 345. A tender of a less sum than is due, accompanied with the statement "that it is more than was due, but that the plaintiff might take it all," is a good tender, and (hies not prevent the creditor from pi'oceediiig for l)aiauce: Thorpi'. v. Bunjfux, 8 Dowl. 003. A tender of a sum " as all that is due " is not a good tender (Sutton, v. Itawklns, 8 C. & P. 259) ; nor is a teniJLr with these words good, "I tender you £21 in payment of the half year's i ... due at Ladyday last ;" because, if accepted, it would admit that that sum was the amount of the half year's rent : llantums (Man/ttii) v. Thorki/, 8 C & P. 57.'<. A tender is valid if it implies merely that a party offers a given sum as being all that he admits to be due ; but if it implies also that if the other j)arty takes tlie money he is required to admit that no more is due, the tender is ccmdifcioual and iusutiicient : Bonknv, Onwn, 11 Q. B. 1.30. In that case, a tenant sent to his landlord £2(), with a letter in these words, "I have sent with the bearer £20 to settle one year's retit of Nant-y-pair." The landlord refused to take it, claiming more as due. lldd, a good tender. A tender of a sum as being " all that is due" is bad : Field v. JSewport, <tr. liailwai/ Uonipanij, 3 H. & N. 409. Under jwotent. — In Manninij v. Lunn, 2 C. & K. 13, the words of the tender were, "I tender you £20 under protest." It was held a good tender, the words " uniler protest"' merely importing that the debtor did not accpiiesce in his creditor's demand, and did not mean to preclude himself from recovering the money back again if he could. So an offer to pay under protest the amount claimed is a good tender : Scott V. Uxhridtje and Jiickwdntiworth Jiailwai) Ca., L. R. I 0. P. 59G; Sweny v. Smith, L. R. 7 Eq. 324; Addison on Contracts, 2(i;{, 7th Ed. Entire demand, — A tender of part of an entire demand is inoperative: Dixon V. Clark, 5 C. B. 365 ; iValnh v, Southimrth, 6 Ex. 150. " Where a claim con sists of several items, the party making the tender has a right to appropriation, but that if he omits to make any appropriation, the right to appropriate is transferred to the other party:" per VVihle, C. J,, in Hardln<jhani v. Alloi. 5 C. B., page 797. In that case. A, demanded from B. £1 7.^ Qd. f(n' several matters, including lO.s. for a particular service performed by ^. ; B. tendered 19a. iSd. ; it was hdd that proof of this did not sustain a plea of tender of 1()>. on account of such service : see the remarks of Coltman, J., at page 798. .A tender of part of the debt ia not made good })y the debtor having a set-off for the balance: Searlea v, Sadifravr, 5 E. & B. 639; Phillpotts v, VliJ'ton, 10 W 11. 135. Wairer of tender. — Where a tender is either expressly or impliedly dispensed with, the tender in such a case, being useless, ia waived : Watson v. Pearson. 9 Jur. N. S. 501 ; The Norway, 11 Jur, 892; 13 L. T. N. S. 50; 3 Moore, 1' m - 8G.] DEMAND OF MONEY AFTER TENDER. 113 ('. (". X. S. 245. "Iliere must either be an actual offer of the money produced, oi' the production of it must be dispensed with by the exjjress declaration or eiiuivalent act of the creditor :" Selwyn's N. P., vol. 1, Kith Ed. 187 ; Lorkridqe V. Li<::,i, 30 U. C. R. 494; Undo el al. v. Monjan ct al., 'Hi C. P. 517; yfalhmm v. Kidhi, 24 C. P. 598 ; Tunier v. CroMli'ji, 3 M. & W. 43. Di-niand after tender. — The substance of the defence being that the defendant was "always ready and willing" to j)ay the de))t, that defence can be defeated by shewing a subsequent demand of the am(mnt tendered and not paid: (Jliitty'a hec. in Plea<l., 3rd Kd., 519. The onus of proving the sub.sequent demand is < • tlie ci'cditor (Spijlieij v. IJlde, 1 Cani}). 181); and if for ni(»re than tlie sum teiideretl, the demand will l)e bad : Rlrerx v. (irljfifhx, 5 B. & A. (530 ; Bniudon V. Newinijtim, 3 Q. B. 915. And it must be nuvde by some one authorized to receive it and grant a discharge: Cuore v. Calhiirni/, 1 Esi». 115. Even in replevin : Pimm v. (Jr/'rill, 6 Esp. 95. On a tender by two on a joii't contract, a demand on one is suHicient : Pe'trxe v. Bowles, \ Stark, 323. A letter demand- ing a debt sent to the defendant's house, to which answer was made that it would I)e settled, was held suflieient evidence of a demand on the issue of sub- se(pient demand and refusal to a plea of tender : /lai/inird v. //oiiue, 4 Esp. 93 ; see Marks v. Laliee, 3 Bing. N. C. 408. The subse(£uent adoption of a demand is not sutticient : Story on Agency, s. 247. Procedure. — Tender cannot be pleaded together with a defence denying the rij^lit of action for same claim : Dohle v. Larkan, 10 Ex, 770. On a claim under the common ccmnts a general plea of tender is sufficient : Smith v. Manners, .") v.. B. N. S. 032. If a defendant brings money into Court on a plea of tender, the plaintiff might take it out of Court {LeGreic v. Cooke, 1 B. & P. 332), were it not thai O. C Rule 130 prevents him, unless the Judge onlers otherwise. l':i)()f of a tender of £20 19.V. fir/, in bank notes and silver was held sufficient to s\ipi)()rt a plea of tender of £20 ; Dean v. James, 4 1$. & Ad. 54(5. Proof of tender of less than pleaded is not good : John v. Jenkinx, 1 ( !. & M. 227. An entry of tender and refusal made by a deceased clerk of a plaintiff's Attorney in a day-book, kept for the purpose of minuting his tlaily transactions, is admissible in evidence to prove the tender ; Mark.-< v. Laliee, 3 Bing. N. C 408. As to proof of tender, see Itohinnon v. Ward, 8 Q. B. 920. The plea of tender lias the .same eOect as to admission of liability as payment into Court : Tay. on Mv., s. 7(5t). Tlie plaintiff's cause of acticm cannot be <lenied ivnd tender pleaded tiKi : Marlellan V. Howard, 4 T. R. 194. (*n common counts, it is an admission only to the extent of the^sum tendered : Cox v. Brain, 3 Taunt. 95 ; Biihrer v. Hume, 1 N. & M. 117. A plaintiff' can be nonsuited after plea of tender if he iloL'S not appear, and in such ease it is the proper course : Anderson v. Shaw, .S Bing. 290 ; see also fisher's Digest, 8292; R. & J's. Digest, "Tender," Ros- ooc's N. P. 13th Ed. 671. The following is given as a form of plea of tender : In the Division Court for the County of A. B., against Plaintiff', Defeniiant. C. D., The defendant, for a plea herein to the jdaintiff's claim (or, if only to a part of snrh rlaini, then sprrifi/ such part), says tliat he always was, ami still is, ready and willing to p.ay to tlie plaintiff the sum of $ , and before action (or, if the. debt itui-i paiia.hle. on a daij certain, naminrj that da/i, or .tome day niileriur to it on which the. tender wa.t made), he tendered and offered to j)ay the same to the plaintiff, and the plaintiff refused to accept it, and the defendant now brings the said sum into Court ready to be paid to the plaintiff". C. D. 8 IS' "V" •'•■'•■.'-■''•-1- Hi .'.'if.' 1;-,^*i,■•:■...-.• ■> t" •'"'*i *,.■''»" '■ ■ . . -I ^■■■:-V-,-.-^:4.' •' ,1 iV-W--^" ■*',/•• I ..)»•,■" ?».« .'■*■-, -.' -l J .< •'> '. •,>*• .'. ■ ■ ' "I i •■■i.,?... .. ,'■'■ ..'• .. ■,Viiv..«j..,.,^l5,j*";., ' •^?'"^4';' '!^::•'^• ■■ ■■v^-;',V-;-'.'i*--.-. #• ' /. i. ,>■ fi. \i rh-- * . *. iv^^^r^"""P ■"■m i.-'ij»» 114 MONEY IN COURT TO BE PAID PLAINTIFF. [ss. 87, 88. P, -,>, ^' .1.11-., .-.5 r .> ft .■! #..v.;: - ;)^-':; ;■■■*■•■ Amount to gy rpj^^ ^..^'^i ^^^^^^ of monev shall be T)ai(l to the plaintitl'. be jiiiid to • • J I 1 piaiutiir, &c. less one dollar, to be paid over to the defendant for his trouble, in case the plaintiff does not further prosecute his suit; and all proceedings in the said action shall be stayed, (c) unless the i)laintiff, within three days after the receipt of notice of such payment, signifies to the Clerk of the said Court his intention to proceed for his demand, notwith- standing such plea ; .uid in such case the action shall procecil accordingly. C. S. U. J. c. 19, s. 88. The rule .13 H8i If the decision thereon be for the defendant, the to CliStS in 1 . •«. 1 M 1 1 /> 1 1 • such cases, plaiutiii shall pay the defendant ins costs, cliaiges and expenses, (d) to be awarded by the Court, and the amount (r) At page 181 of Vol. 5 U. C. L. J., and at page 95 of 7 U. C. L. J., the opinion is given that if the plaintiff" docs not, v, ithiu the tliree days' time, sig- nify liis intention to proceed for the balance, tlie further prosecntion of tlic action is not thereby barred, that tlie section is merely directory. With all due respect, it is submitted that this cannot be so. Tlie defendant is ])ernntte<l to file liis plea and pay the amount into Court, ami the i)laintifF lias three days, exclusive of the day he receives the notice of tlie plea ( Voinxf v. J/i(/(ion, (i M. & W. 49; Wci'k^ V. Wraii, L. R. liQ. h. "212; Jfr< na v. Wiitcrlon Mutual lure [nsurancc Compainj, 20 C. P. p. -437), to determine whether he will accept or not. Tt may be urged tliat great injustice might be done a plaintitl' l)y tiiis construction. In some cases no doultt tliat would ])e the case ; but that is only an arfument to be addresse<l to the Legislature for extending the time l)ey(iiii! three days. If a plaintiff can determine what he will do after the presciilnd time, then there is no limit to it and the provisions of tlie statute would lit- useless. Notwithstanding the 125th Kule (whicli, if it lias a))plication to this case. only appbes to the dutu of the Clerk), it is submitted that the time does not commence to run against the plaintiff until the actual receipt of the notice {McCrea v. Waterloo M. F. Ins. Company, 20 C. P., page 488, ;>('/■ (ialt, J. ; in Appeal, see 1 App. R. 231 : JSFCann v. The Waterloo M. F. /iis. Cowjianii, 31 U. C. I^ 37(5); and that the plaintiff "signifies" to the Clerk of the Court *' his intention to proceed for his demand," hij mailiiiif a letter or notice to that effect: ^farshall v. JamJefton, 42 U. ('. R., at page 120, and cases there cited. Sliould he not do so within the time, it is submitted that the defendant's ]ili:i of tender should be considered as confessed : see Nozer v. Wade, 1 }>. & i. 728 ; A'(YtH.s- V. Jon(^s■, 2 B. & S. 45 ; London v. Rofeii, 3 Q. B. 1). (i ; J)o}ile v. Knufman, 3 Q. B. D. 7 ; Tohey v. Wilson, 43 U. (J. R. 230 ; and Uule 129. The delay not being hp the art of the Court or its ojlirers it is submitted tlmt the notice could not be given, nor .allowed to be given, nunc pro tunc : Lan-nnu . V. Audleii, 2 M. & W, 535 ; Freeman v. Tranah, 12 C. B. 406 ; Moor v. A'ohirl.<. 3 C. B. N. S. 845, per Williams, J. Where a stay of proceedings was "until the further order of the Court," it was held that neither party couhl ahaiidoii the order, because eacli party had an interest in it : Wilson v. Ujijill, 5 ( '. b. 245. Wihle, C. J., says, at page 24(i, " It continues to be a !)inding order until rescinded by the authority by which it was made." Here the statute stays proceedings, "unless" the plaintiff signifies his intention of proceeding with the action, and in that case only. ((/) "This would also include the defendant's expenses of attending on his own behalf, if he did so attend expressly for the purpose of giving evidence on his s. 89.] PAYMENT INTO COURT. 115 thereof may be paid over to liim out of the money so paid in witli the 8aid plea, or may be recovered from the plaintiff in the same manner (c) as any other money [)ayable under a ju(l,i,'ineut of the said Court ; but, if the decision be in favour of the plaintiff, the full amount of the money paid into Court as aforesaid, shall be applied to the satisfaction of his claim, and a judgment maybe pronounced against the de- fijiulant for the balance due and the costs of suit according to the usual practice of the Court in other cases. C. S. U. C. c. 19, s. 89. 81K The defeu hint may at any time, not less than six days (/) before the day appointeu for the trial, pay into Court Oj) such sum as he thinks a full satisfaction for tlie plaiutili"s demand, together with the })laiutifl''s costs up to the time of such payment. C. S. U. C. c. 19, s. 90. Defendant niiiy pay luuiiey into Ci)urt. own biihalf, and not to superintend the cause " (Ilowea v. Barber, 18 Q. B. r)S8), or such sum as the Judge miglit think proper to order a defendant, though not a witness, under section 155. As to costs generally, on a plea of tender, see Gray on Costs, 30(). (f) See section 15(5. A plaintiff cannot get the money out of Court until the suit is determined without a Juilgo's order : Rule 130. (/) This means clear days: see notes to sections 70 and 87; McCrea v. ]yalerloo Mutual Fire In.saraiiee (Jot)>pauy, '2t> C. P., at page 437 ; in appeal, 1 App. R. 218. As to "the day appointed for trial," see Fletcher v. Baker, L. R. 9 Q. B. 372. ((/) This section does not appear to be confined to any particular causes of action, as in section 86, or in the higher Courts by the 108th section of the C. L. P. Act (Rev. Stat, page 031), but applies to every case suable in a Divi- sion Court : see Rule 45 and Davis' C. C. Acts, 503. Even detinue : Cronsjield V. >Snch, 8 Ex. 1,59. The word "defendant" in this section must, in the case of an action against two or more, be read defemlants :" Rev. S. cap. 1, s. 8 s-s. 23. Tile section makes no provision, as section 108 of the C, L. P. Act does, for one of several defendants paying money into Court. It is therefore sulunitted that in such a case .all defendants must join in paying money into Court {Kai/ v. Paiicluntan et al., 2 \V, B. 1029), except perhaps in actions against a maker and endorser of a promissory note or bill of exchange, which is probably governed by section 134, et seq., of cap. 50, Rev. Stat. It may be argued that under tlie lirst section of that act, by the consolidation of these sections in the C. L. P. Act, they do not apply to Division Courts (see Ifulcoiiih v. HatiiUton, 2 E. & A. 230) ; but it is submitted they do. Payment into Court has always been looked upon as a course to be encouraged. Care must be taken to pay into Court enough to satisfy the full claim to damages to the time of paying the money in. Interest must be calcul.ated to the time of payment, and not merely to the issue of the summons : Kidd v. Walker, 2 B. & Ad. 705. Where several matters are included in one suit, payment into Court may be made to all: Marshall v. White.ude, 1 M. & W. 188. When pleaded to a cause of action, which, in a higher Court, would come under the head of indebitatus counts, it admits "that the defendant is liable, iu respect of some one or more contracts or causes of * ■•v.? ■■>/ ' 'I.. .. . ••-■fi .>"^ %V^^^^•'v^.■• ■ ' >.■?'; 1..^ I,. V..lJ '■All !,•»!. -i!*tM ■', 1 i' Vi '.<«,- «■*;■•• ,<■ ..i-/!^ -1^:91 , ^l. •'*■ 116 NOTICE OF PAYMENT INTO COURT. [s. W. I : ■■ I-!' f,-,;«f.r.'J r:'i ■■*.'' M I M V"'.- ir '''-•♦^' I i! ■ ' ■ ^r ill! ■ -^^ ■5..^.--:* ;,*;■ C!'ikto>;ivo ^J^ Tlie Clei'k, having received tlie necessary poKt;ii,'p, iMyiiuiit shall forthwith (h) send notice of such ]>ayment to the phiin- iiili- Court. ^ ' , ' "^ ' , tiff by i)OHt or otherwise to his usual ])lace of abode or of action stated in the general counts, to the extent of the sum so paid in ; and the jdaintiff cannot up})ly that aihnission to any ])artiouhvr contract he may please to select any more than the defendant:" Taylor on Evid., s. 7(51. It admits also the validity of every xjicc'icx of claim mentioned in the particulars, and that iio)iu' damages are <lue on ((irh ; E(/(/nr v. Wnt''*<»i, 1 C. & M. 4{I4. It admits the ch.aracter in which a j)laintiff sues ( L'qm-otnhe v. Nofnicx, 2 Camp. 441 ), and his sole right to the money sued for ( Wal/Lcr v. h'oii'soii, 5 C. & P. 48()) ; and that tiie defendants are ])roperly sued jointly: lid.n'iixrroft v. Wtxc, 1 ('. M. & 11. 203, It also admits that the action is not bnnight too soon (llarriKnn V. l)i)U<ilii8, 3 A. & E. 390); hut all such admissions only operate to the amount of the money 2)aid into Court : Archer v, Eiiiilhh, 1 M. & (t. 873. If paid in. on an action on a special count or claim, it admits the ccmtract as charged {Inracly. Bcnjaitiin, 3 Camp. 40 ; M'Caiirc v. London uml North Wcsftrn /'nil- iiHvj Co)npan!i, 7 H. & Is. 477), and that nominal damages are due on it (Archer v, Eii<iHs}i, 1 M. k (r. 873) ; and the defendant cannot be allowed to controvert it : Lloiid v. Walhji, 9 C. & P. 771. Still less will he he allo^yed to give evidence of facts under this plea, even in mitigation of damages, whicii, if pleaded before, would have been a bar to the action : Speck v. I'hil/ip.i, 5 M, fi W. 279. Tn an action for use and occupation, it admits plaintiff's sole title : Dolhy v. Ilex, 11 A. & ]<1 33/5. If paid in on a promissory note payable by instal- ments, it only admits the amount of ijistalments as due which the money paid in will cover, and does not preclude the Statute of Limitations being pleaded to the others : Rcld v. Dickons, 5 B. & Ad. 499. It is sul)mitted that payment into Court may Ije pleaded to part of the ])laintiff's claim : Charles v. Branb r, 12 M. & W. 743 ; Brunc v. Thompson, 4 t^. B. 543. Where plaintiff" sets out his cause of action in two ways, on eitlier of which he can recover, it is enough to ])ay money into Court on one: Edr/i/ v. Bowman, 1 B. & Ad. 889; Stafford v. Clark, 2 Bing. .377. Payment into Court in actions of tort has the same effect as in actions of contract. It admits a cause of action with damages amounting to the sum paid into Court ; but it does not necessarily admit the cause of action stated in the particulars: Schreijer v. Garden, 11 C. B. 851 ; Roh'inson v. liar man, 1 Ex. 850; Storij v. Finnis, (5 Ex. 123. If the claim is general and unspecitic, although it admits a, cause of action, it does not admit the cause of action sued for, and therefore the plaintiff must give evidence of that cause of action before he can recover larger damages than the sum paid into Court : Perren v. The Monmouthshire BaUwaij and Canal Companii, 11 C. B. 855. See the report of this case for a general view of the effect of payment into Court in different forms of action. If pleaded as to part, and plaintiff fail on the rest, he nuist pay costs: Jiumbclow v. Whallei/, 1(5 Q. B. 397. A defence in denial of the cause of action will not be allowed with paynrent into Court : JIart v. Dcnni/, 1 H. & N. 609 ; Spurr v. Hall et ah, 2 Q. B. D. 615 ; Berdan v. Greenwood, 3 Ex. D. 251. If a person avails himself of payment uito Court, he cannot afterwards repudiate the effect of it: Gromhle v. Davidson, 19 U. C. R. 3()9. Payment into ( 'ourt operates as a notice of defence ( Rule 20), and can be pleadeil in an action of replevin : see Rule 45. As to costs, see section 91. Further, as to the effect of this defence, see Roscoe's N. P. Ev., 13th Ed., 79 ; Bullen & Leake, 3rd Ed., "Payment into Court:" Chitty's Prec. in Plead. 491, 736: Fisher's Digest, 6413; Tay. on Ev., ss. 762 to 765, inclusive; Har. C. L. P. Act, pp. 119, 120 (notes); Rob. & Jos. Dig., 2731. No written plea need be tiled, as is. required in tender before action. (h) That is, within a reasonable time: see note y to section 18. As to this notice, see Rule 87 and Form 102, and sections 9 and 10 thereof. It will be SS. 91, 02.] SET-OFF AND STATUTORY DEFENCES. 117 Inisiness, and the sum so paid shall be paid to the plaintiff, and all proceedings in the action stayed, nnless within three days after the receipt of the notice, (i) the plaintiff signifies to the Clerk his intention to proceed for the remainder of the demand claimed, in which case the action shall proceed ;is if brought originally for such remainder only. C S. U. C. i'. 19, s. 91. 01. If the plaintiff recovers (/.;) no further sum in the Piaintiir to actioji than the sum paid into Court, the ])laintifi' shall pay antH r.ists if the defendant all costs, charges and expenses incurred by suni ru- him in the action after such 2>ayment, (l) and such costs, njharges and expenses shall be duly taxed, (w) and may be recovered by the defendant by the same means (n) as any other sum ordered to be paid by the Court. C. S. U. C. ,'. 19, s. 92. i^H. Set-off and Statutory Defences. In case the defendant desires to avail '>t himself Defondantlo the Jaw of set-off, (o) or of the Statute of Liraita- ofsut-oiior round the safest course to pursue for Clerks to send this notice in registered lutter to tlie plaintiff's address, which the Clerk should obtain under Rule 12."», on the suit being entereiL As to plaintiff's "place of abode or business," see notes to sections (J2 and 7-. (i) \Vo have only to repeat here the views expressed in the notes to section 87, aud to which we refer (a view entertained by many County Court Jmlges), tliat unless the plaintiff' signifes his intention to proceed for the balance of his claim within the three ilays after tlie receipt of the notice from the (Jlerk, he iiidtljf accepts the amount paid iu iu full of bis claim. Any other opinion W(»ukl, it is submitted, be at variance with the view, that Judges, as well as others in Division Court matters, can otdy act iu accordance with the powers conferred on them by statute. The statute makes no provision for trying a case if this notice is not given; and, it is submitted, tiieJuilge cannot try it without it, uor allow it to be given afterwards: section 53; see also Form 1()"2. (^•) The word "recovers" here may, it is submitted, be read as "obtains judgment for." The case of Ilcuntt v. Cory, L. K. 5 Q. \\. 418, and the cases there cited, are quite distinguishable. (/) As to the costs in such cases, see Arch. Prac, under the title of " Payment of money into Court, Costs on;" Lush's Prac. 820; Har. Com. Law. Pro. Act, 124, 624. [m] Subject to revision V)y the Judge: see section 38, notes x aud y. («) See section 136, and notes. (o) "Set-off signifies the subtraction or taking away of one demand from another opposite or cross demand, so as to extinguish the smaller demantl and reduce the greater by the amount <»f the less ; or, if the opposite demands are cipial, to extinguish both: " Waterman on Set-off, page 1. "Technically speak- iiig, a set-off is a counter demand wliich the defendajit liolds against the plaintiff, ^'••^■•X^>-:.'^^^';''""' I., J, ';■ 11 1' '. ' <* I ■ Irl 118 SET-OFF. [s. 9?. -. *.. , ■■'-.I*' 1 »".,. .-.".K * «IN' ■, -r, .,-1; :u "1' * .;■ .■'Hf ■■■■■'. ■ urisiiig out of a transaction rj-fr'ni^ir to the i>laintifrs cause of action : " //>. 'J. " It would seem hut just that mutual chiinis shouhl he set-off one against th-.- otlicr ; tii .t neither shouhl he (;omi»elk'(l to jiay vlien the sum so paid must \<i- refuiKled fin a judgment remlercd on the adverse claim. Iteasonahle as this is, the remedy hy set-ott' was unknown at Connnon Law, hut is a creature of th« statute:" 'i (Jeo. II. cap. '2'J ; 8 (!eo. II. cap. 24; Waterman, 11. The right of set-off is preserved hy our Insolvent Act of 187i>, see. 107 {/irififiitv) v. Smith, 17 (irant, iil'2), and hy the Act rcsjiecting the assignment of thoscs in action : llev. Stat., cap. 1 1(!, ss. (} to 1- inclusive. Notice of set-oH', together with particulars of it, should he given to the plaintiff six days nt /inst [chiir ifni/tt see notes to sections "0 and 87) hefove the day aiipointed for the sittings. It may he left for the plaintiH' at his usual jilace of ahode, if such he within the division ; or if tiie plaintiff' lives without the division, the same may he left with the (Jlerk of the (.I(mrt ni which the action is to he tried, and the particu- lars of set-off nuist he delivered to the Clerk : Ilule I'i8 ; see S'tciitoii v. Sfi/fcs. ;") Ex. 578. 'J'he particulars should he such as not to mislead a rcasonahle man ; Lawv. Thomihvni, \^^ M. & \V. 545; Prirhard v. Xihim, IG M. & VV. 772. A set-off' can only he pleaded in resitect of inutunl drhtx : [.tfxrtj v. Jioinlpit, 8 Ex. 852. For instance, a debt against one jvirtner could not he set-oil' against au action on a claim hy the firm (Pi'im v. Plank, .3 t". 1'. JilHJ) ; nor in an action hy a member of a firm could a debt against the firm he set-off: Arnold v. Bniti- l-rlijdi', 9 Ex. 15S ; jMiddlcton v. Pullork, <x partf, Ktnij/if and Itnjimondy L. H. 20 K((. 515. Nor could a pt^rsonal claim against an individual be the subject ol set-off to an action by him as executor, and the converse: Munlall v. Tki'thinxim. «) E. & B. !)7(); AVcs V. Watt-^, 11 Ex. 410; Srftotiild v. Vorhctt, 11 Q. 15. 77!) : Hailen V. Finch, L. K. 7 (J. B. ,S4 ; Smith v. Nirhuho)* et nl, 19 U. C. R. 27. The law of set-off does not iipply to a claim for uidi([uidated damages ilifU v. (fiiri'if, 8 C. B. 887; Caxf"//i v. Boi/diii'/fon, 1 E. & H. (il) ; Piifhrrt'ord et al. v. Stucd, 12 C. P. 9, and Turner v. Thnnm.-<, L. R. C. 1'. 010), thus, a liability on a guarantee where the amount is uncertain : Murkij v. IniiH.t, 4 Bing. N. C. 58. In that case, Tindal, C. J., at jxtge 71, laid down a rule which has ever since been generally recoguizeil. He says, "It seems to me that the rule by which we are to determine whether or not ademanil can l»ecometVie subject of ;» set-off is by inipiiring whether it siumds in damages ; whether the deniand is ca[)able of being liipiidated or ivsoertained with precision at the time of pleading:" Approved of by ilill, J., in Cninipton v. Wdlbfr, ',i E. & E. 321 ',VM ; Luckie v. Hiishhi/, 1.*] C. B. 8<!4. A liabilitv on a bo.id to iudemnify, generally is noL the subject of set-off (.4««vw//v. Attmwll, 2 E. & B. 23; Mnrtin v'.Clavk, 20 U. C. IJ. 419) ; nor an action for the ile.tention of a ship (S/i-^j'-r v. Duthh', 8 < 1 B. N. S. 45. 72) ; nor for unli([uidated losses on a ])olicy of insurance ( Ihomxon r. Bi'duKui. 11 M. & W. 487) ; nor to a special action for indemnifyin^g an accommodation acceptor (Ilardniiitir v. XethfriiMxpl, 5 B. & Aid.. 9.S), except as to so much of the claim as is in respect of the p:iyment of the amount of the hill : Cniinjitdii V. Walker, 3 E. & E. 321. But if money is iiaid under a guarantee it may hi- set-off {Hutchinson v. Si/dnci/, 10 Ex. 438), or is payable on a judgment ( TurnhuK v. Pell, 2 Ex. 793 ; see Simpson v. Laml>, 7 E. & B. 84) oi- bon(l : Lee v. Lester. 7 C. B. 1008. The sum really due must be shewn ; Si/itnnons v. Kirox, 3 T. \\. ()5. A joint stock company may set-oft' calls : Moore v. Metrv/ioUtan Seeriuje ('om)xtni/, 3 Ex. 333 ; Mil rain v. M'rther, 5 Ex. 5.5. In an action against a con tributory, when a debt due by the company can be set-off, see Garntl and Moselej/ Gold Minintj Compani/ v. Sutton, 3 B. & S. 321. When a debtor has advanced moneys for necessaries to the deserted wife of the creditor, he can in e(|uity set-ott" such moneys against the creditor's legal demands ; Jenner v. Morris, 30 L. J. ('ban. .3(51, 7 Jur., N. S., 385. A judgtnent recovered in the name of a trustee, which, if recovered in the name of the cestui que trust, would have been a good set-off in law against the plaintiffs demand, may be set u]> o(iuitahly; Cochrane v. Green, 9 C. B. N. S. 448; but see Middletonx. Pollock. 92.] SET-OFF. 119 F.rp^rt- S'lir-, L. R. 21) K (. 21); Wood rf al. v. Sfrrensnn, ]{] IJ, C. R. rrll ; Thonitit)} vt (il. V. Mdjinnrtl, li. II. 10 (,'. P. (i!)"). So aKso can iiioiioy diiu under an ('(juitiil)le assignment lie set-oil": Elkin ct <tl v. liahr, 11 (". H, M. S. r>2() and ."i42. Although an Attorney cannot sue on his bill until delivered one month, he can set it oil' without deliveiy : Jivatrnv. T'ilil>itx, II (J. B. >>. .S. 8")"). 'J"he deht must he due at the time action brought (Itlchdrdjt \. Jumi'n, 2 Kx. 471), and must contiinie s(» down to the trial: EjiUDt v. Littlcdiilr, 4 Kx. 1")!). The }ilaiiititl'.-t' joint r(«f/ .vc/y/vf/ n(»te can he set oil': (Jiri'u v. IVUi'in-iuii, ,'■> (.'. B. N. IS. .'(I'd, As to mutual credit, see /iill v. Cfini/, 8 C. B. 887; lierhinth v. linlhn, 8 10. & B. (JS2; Lee v. Jiid/fii, 8 K. & B. 092, note a. In an action against the f.xecutor of a Divisictn <!ourt (Jlerk, on the covenant against him an<i his sureties for non-payment of money c(dlecteil, set-off may he eiiuitahly i)Ieaded fdi- money due ti) the defendant as executor on a ju<lgment against [ihiintiff: Afn/.il. V. Fulfil, 2(» U. (!. i;. r)(l!>. If the <h.'niand is actually li(iui«latLd, a fltatcment of claim for siiecia) damage will not jtrevent its being set-oil': Birch V. /)■ jii i/stcr, 4 Camp. 88"). Scnnetimes a cause of action can he fiamed so as to pr.-eluile set-off: see /lillv. Smith, 12 ,M. & \V. 018; Thoriie v. Tlwrpv, 3 B. & Ad. oS((. A defendant need not avail himself of set-olf, but may reserve his right for a envss acticm : L<u)i</ v. ('Inttliiint, I ('amp. Interest on the amount of set-off must be claimed on the p.irticidars : Bullen & Leake, 3rd Kd., title, " I'articulars of set-oH." A <lefeji(lant can set-off and sue for the same deht : Eranx v. Pn^.-'srr, li T. II. 18(i; 1 1 .)nr. , N. S. , 182. In an action of cove- nant for rent, the tenant cannot .set-oil' uncertain damages on any of the other covenants in the lease : \V>'hi<iUv. H'a^r/-.*), (J T. li. 488 ; McAiuininjx. Tichcll,'!^^ U. ('. li. 122. So in an action for not indemnifying against taxes, no set-off' ia allowable : Cooper v. Nohiii-soii, 2 ( 'hitty Uil. The statutes (»f set-off do not apply to replevin : LaijcoeL- v. Tiifiii'11,'1 (,'hitt. a.Sl. If money is l)orrowe<l on note under an express agreement of repayment, yet it is the subject of set-oil' : Lerliniere v. f/inr[iiis, 2 Ksp, ()2(>. If a creditor consents that his debtor shall set-olf the debt against a debt due from the creditor to another person, it seems the agreement, though n(»t in writing, is valid : C'uxftn v. Cluulh'ij, 3 B. & ('. f)!)!]. If .1 . agrees to niake a waggon for li., and makes it, but refuses to deliver it unless the money is paid on delivery, the money that was to be ]iai<l for the waggon may be set-off against any demand of B. against A. for goods bargained and sold : Dnniiiore v. Tuijlir, Peake, 41. li., a, creditor of ,1 . , employed him to repair a carriage, agree- ing to pay ready nnmey therefor. Held, that B. could not, upon ottering to set- <iff an ailJequate portion of the debt, recjuire redelivery of the carriages withcmt payment of the re[)air8 : (Jhirhe v. Fell, 4 B. & Ad. 404. An agreement by a bro- ker, that he will sell goods for his principals, and pay over the proceeds, without wettiug-off'a dehtdue from the princiiials to him, is not binding : M'd'il/irrai/ et nl. V. Siiii/ison, 2 (1. & I'. 320. If A. agrees to do work for a certain sum of money, and afterwards //. i)urchases some of the materials, which are worked uj) by A., the money expended on that account is the subject of set-off, not payment: Allin- .ton V. iJaries, Peake's Add. Cases, 82. The clerk of a race-course cannot set-off a claim of an unpaid stake due from the plaintiff on one race against the stake of another race won by the plaintiff's horse : Charlton v. Jlill, 5 tj. & P. 147. Where defence not the subject of set-off, but cross-action, see Slitn.ion v. Hall, 1 H. & N. 831 ; Mei/er v. Dre.sner, 16 C. B. iN. S. G4() ; Joiie.-^ v. Moore 4 Y. & 0. H.'il ; AUerhurif v. Jarine, 2 H. & N. 114. The equity which attaches to an overdue bill or note is not the subject of set-off: Whitehend v. Walker, 10 M. & \V. ()ilG ; (Jripp-H v. Dai'i.i, 12 M. & W. 1;")!). A note can be emlorsed for the purpose of defeating a set-off (Ouldt v. JIarrkou, 10 Ex. 572 ; Metropolilaii Bank v. Snare et al., 10 V. P. 24) ; but if emlorsee merely a trustee for endorser, i)()8- sii)ly the case might he met by application of the principle of Cothrane v. (Jreen, it C. B. N. S. 448 ; see also Jfolme.'i v. Kidd, 3 H. & N. 891 ; Aijra and Ma.ster- mntt'n Bank v. LeUfhton, 4 H. & C. C;")!*. Where a person fails to perforin certain work, and it is afterwards done by the employer, the cost of doing this part is not iB/'itter of set-off', but deduction : Turner v. Diaper, 2 M. & G. ^41 ; Jiewton vf-^'MV^, ' !.J>:' '1' ' ^ iv'V ■„•*■ «!.•; '■-.■• I I -/ •■ r ' 'A », . • * ... <f 120 SET-OFF. [s. HJ. • .V'' • ■^V., ■ ^■.,'.: >-■ ' . ■ '* rilt V. Forster, 12 M. & W. 772 ; Partlow v. Wehh, Car. & M. 531 ; MotnM \. Stui, 8 M. iK: W. 8r)8. Tins amount of a verdict roeoverctl cannot be a Het-oft' unless the original (lu))t could have been: (lurrirk v. Joiif-i, 2 Dovvl. Ifi?. One win. buys goods of a jjersou, knowing tliat he is selling them as agent, cannot aet-ott, in an action by the principal for their i)rice, a debt due to him from the agi nt. even though he di(l not at the time of the purchase know, and had not tin means of knowing, who was the real owner: Snuona v. lirimUi/, 18('. H. 2s'. S. 467 ; l)ut sec lioiciiwnrillc Machine Co. v. lJnii}i-itr, 2 Sup. H. 21. It is no! necessary in sucli a case to negative the " meiuis of knowledge :" /iurrUs \. Ivi]ieri(tl Ottomuu linvk, L. K. U ('. 1*. M8 ; see also Ex i/nrtf JJimii, In rr fffiili ;/. 4 Ch. D. 13.S. In an action by a servant against his master for wages, the Uitti r cannot generally set-oil' the value <»f the goods lost by the negligence of the servant ; but if it was part of the original understanding that the servant should pay out of his wngiNS for goods lost through his negligence, tiie value of the gtmils so lost may be de<hicted from the Avagcs: Le Loir v. llris/otr, 4 Camj). 1.S4 ; Clew(ivt/i V. Pickft>nl, 7 M. & \V. 314. Salary due to a clerk on dismissal ia tlic subject of set-otl': Eitxt Ain/lian linilwtiiiit Co. v. Lytfnjoc, 10 C. H. 72G. A dflit due to a surviving partner may be set-<ill" agaijist a demand on him in his own right: Fniirfi v. Andrade, (> T. 15. 582. So a debt due from one who was the only apparent trader may be set-off in an action by himself and partners : Slvitr< (j V. j.'Vf//, 7 T. 1{. 3(}1. The balance of i)artnership accounts must be final to be the subject of set-oft": Fnnnont v. Coujilmiil, 2 Hiiig. 170; Ahhutt v. llicka. .*» Bing. N. C. 578. In an action to which set-ofl' is pleaded, it is no answer to the defence to say that the claim was assigned, and that plaintiff' is simply suing as assignee, without shewing that the assignment was made and defendant liad notice of it hefori' the setoff accrued: WiUon v. Cabrirl tt til., 4 B. & S. 243 ; Denimiw v. Knox, 24 U. 0. R. 119 ; see ./»://s v. Dini, L. It. 1 Q. B. 372 ; Ir..^^so/, V. Mid WdlcK Jidilnni/ Co., L. \{. 2('. P. ^tW.i ; Cfii.^hom v. Provincial Innurtinci Co., 20 (!. P. 1 1 ; DirLton v. Swmi.sia l',,/,- liaihrmi Co., L. R. 4 Q. B. 44 ; 7/;;/;/.. V. As,min Ten Co., L. R, 4 Ex. 387 ; lit A^xom Ten Co., F.c jxirte Universal Lin As.<tiirance Co., L. R. 10 Kq. 458 ; AV Iniperhil Lawl Co. of' Mar.ieifle.'i, Ex pitrt' Colburne & ,Strawbyid<i<', L, R. 11 Eq. 478 ; McG'ivfvin et'nl. v. Turnhvll, .S2 V . (\ R. 407. As to set-oft" in equity, see Fisher's Digest, 778(5. It is a good answer for plaiutift' to say that since setoff pleaded he paid it: Eijtonx. Liflledafe, 4 Ex. 159. In the higher Courts the Stiitute of I>imitations must be specially replied to a plea of set-olf {C/iaftple v. I)i(rston, 1 C & J. 1), but no provision is made for such a course in Division Court. If set-off more than covers plaintiff^'s demand, defendant can bring action for surjdus : Jlennell v. Fuirtaud, 3 Esp. 104 ; and EuHtmure v. Lawes, 5 Bing. N. O. 444 ; see also sec. 94. As to the eflfect of not giving notice of set-off to the Clerk of the Court, see Stanton v. Styles, 5 Ex. 578. In England the statute law has made provision in cases of "admitted setoff " (Walenhy \ . Goiil.s(o}i, L. R. 1 C. p. 5G7); but in this Province there has been no such lei^islation. On an <a])plication under the equitable jurisdiction of the Court, a Division Court judgment can ])e set-otf and allowed against a judgment of a (^ourt of Record: liohin.wn v. Shicld.t, 2 L. J. N. S. 45. A cross claim arising out of the same transaction, for plaintiff' 's negligence, default and mis- condnct, not the subject of set-off: Bent v. /////, L. R. 8 C. P. 10. In an action by the payee of a joint and several note against one who, to the know- ledge of the payee, joined in it as surety only, it is comjjetent to the surety to set up a set-off due from the payee to the principal arising out of the same transaction from ^\ hich the liability of the surety arose : Jiecfwrvnise v. Leivi.'i, L. R. 7 C. P. 372. In an action against the acceptor of several bills, it is a good answer to say that the drawers became bankrupt or insolvent, and that the plaintiff" received a sum of money from their estate, as a dividend, on .iccount of the bills, and as to that sura, was only suing as trustee for th(> drawers, and that the defendant had a set-off against the drawers : Thornton v. Mai/nard, L. R. 10 C. P. 695. Aa to setting off calls on stock against claim for • . s. 92.] STATUTE OF LIMITATIONS. iL'l ''('■ '•■ tioiis, (oo) or of any defiMico uikUm- uiiy otlior stiituu^ (/>) t''i''.Ji;i','^,'','' liiiviii^ forwi of law in Ontario, ho sliall, at least six days heforo the trial or hearing, give notice thereof in writing to the j)liiiiitiH", or leav(^ the same for him at his usual place of iihode if within the Division, or, if living without the Divi- wa^ea, see Hennery. Ciirric, 3(J U. C. 11. 411; Howell v. Dnminlon of Canada n'lh Ji'dind'i/ Co. (Limited), .'i7 U. C 11, 484; Siiiar/ \. lioirnianrilli- Marh'uic 'iiid Jnii>l,'iiieiit Co., 'inC I'. uO.S ; .]faori' ef til. v. MrKhiiion, '21 U. ('. I{. 140. Ill Cttiiierun v. Cameron, '23 V. P. l28!>, it wuh field that in an at'tidn l»y a creilitor against an executrix dt^ son tori, she could not set-otl' a delit due Ity tlie j)l;iiiitiir to her testator; also that slie nnglit l)e sued as executrix ; and, on lier (ictVnding as sudi, tlie itlaintiil' nuglit reply tluit slie was executrix dc sun tort. A note j)ayal)le liy instalnu^nts can he set-otl'; Moorr v. Andrnrs, \'A ('. 1'. 40."i. In !in iiction hy a Sheritl' for the price of goods sold hy him as Mr'i ill', a doht agfiiiist him intliviihudly cannot he set-oil'. Tbo same principle would ajtply to a Hailitl : KinijHuull v. Hank of (Ij>per Canada, IH ('. 1'. (JOU. Wliere defend- ant has not given notice of set-otl', he cainiot have the advantage of any mere items of set-otl', not being pjiynients r)n accouTit : Font it al. v. S/mjIord, 8 l'. < '. \i. 1 7. 'I'he value of a chattel given in barter is the subject of set-otl' : Wrii/fit I'l id. V. Coolc, !) U. ('. U. OO"). If a creditor prove.-, his claim in insolvency, he cannot set it otT : MerrUI v. liiatij, la IJ. (!. li. 44(). Money overpaid on a huildmg agreement ia not the subject of set-otf : SUirlair et al. v. Toirn of (1 alt, 17 I'. C. 15. '25!>, .till i/itiere. Tlie evidence of the statement of an uncertain claim for fi'eight nuist be clear to be the subject of set-otl : Milllth v. ]Vdke.><, 4 ('. I'. 407. Loss occasioned through a fraudulent representation is not the sub- ject of set-nil" in an action on a ja'onussory note for the ))rice of the subject matter fen- which the note was given: The tleorii'ian Jiini Liindier Coiniiinii/ of' Ihititrio V. Thianpson, 35 U. C U. 04. In an action for the cirriage of wheat, where there was an agreement by plaintill's to pay " shortage," //^/r/ not the subject of set-oiT: Allen et al. v. Cli'isholni, ',\3 \] . C 11. '2',Vi ; Mii/erv. /)ri.'<.>(er, 10 ('. B. N. S. 04(i, ih\ an action by a married woman on her sepaiate account, a debt of the husband's cannot be set-otl', even if he join in the action ; Linden, In re, iiml IVi/e v. linehanan, '2!> LI. C l\. 1. In an action against the makei' and endorser of a pronnssnry note, it was laid that neither of the defendants could separately plead a set-otf not arising (ait of or connected with the note : Hiiijlie.s et al. v. Snnre et al., '22 U. C. 11. r>!)7. Where in an a(.;tion the principal gets the benefit of a sum as set-ofl', his sureties cannot shew that it was impro- perly allowed him, or get the benelit of it : Franklin v. Cream et al., '20 V. ( '. li. 84. Where the consideration for a set-oH' entirely fails, it cannot be set nji : <V///r('.s/('r et al. V. AfcCuaiij, '28 ( '. P. 441^. An application to stay a suit, so that defendant may recover a jmlgment against the itlaintitf, with a view of aj»i)lying to set-ort' judgments, is entirely unauthorizetl : Li/nrli et al v. Wil.wn et al., 9 V . Vj. L. J. '24*2, per Draper, C J. As to set-otl' generally, see Fisher's Digest, 77")7 ; K. .and J's Digest, .3491 ; Waterman on Set-otl'. {oo) As to the defence of the Statute of Limitations, see notes to sec. 1 30, sub-sec. 2; 3.L. C. G. 35 and 47 ; H L. J. N. S. 3i>. ip) The omission to properly stamp a promissory note or bill of exchange i.s a statutory defence, and cannot be taken advantage of, unless nr>tiee of the statute IS given: Baxter v. Bai/nes, 15 C P. 237 ; Stephens v. Hern/, 15 (". P. 548 : Kirh)/ v. Hall, 21 C. P. .377 ; Edmnnds i/ni tarn v. Hoey, ,35 V.'C. R. 4i»5. Ia England the objection is taken on the evidence : Field v. Woods, 7 A. & i^ 114. A plea that no stamps were ever .affixed to a note was hehl to permit of evidence being given that the proper stamps M'cre on, but had not been cancelled : younij v. IVaijijoiier, 21) U. C. K. 35, lu au action for a penalty no cause nt' ■>Ji:"'''^-y--y' f •■,». ., . ., , , ■ H- ' .*■ • ■.•■•■■• . I '■<*',■ ' >s '.- '■•'1 .**• r"^ '■ ,'t. ■* "' ■ I ■ ..•'...i.-.,.'ft.!. . -1, ■». . w >•.' ■ >.■ '.f/ ■■: y 1 122 STATITOUY DKFF.NCES. [h. o:{. ■;v, «,-■»:■ Nil (wiilcncc of Kct oil aIIdwcmI. sioii, sliiill deliver the same to llie (Jlerk (7) of tljc Court in wliic'h tlie action is to l»e ti'ied ; and in case of a sot-off, rlio })articulais tliei-eof shall lie delivered to the Chuk and shall accompany the notice to be •;ivon as aforesaid to the phiintill". 0. S. U. (1 c. Ill, ss. ;{5 S: \)3 ; 31) V. c. 15, s. 1. 1K5. No evidence of set-off (r) sliall bo given by tlie de- fenchmt except sneli as is contained in the jKirticnhirs of set- off delivered. (.'. S. U. C. c. I'J, s. ill. iiction exists until action hrotif^lit ; therefore notice of statutory defence would not ho iiect.'s.sary : .\fiixiiii t/iii taiii v. Muxinji, '2i( [T. ( ". i;. r»()0 ; sec llule I'JS, ami uoti's thereto, 'I'lii; defeiiee to an aetioii on Attorney's l)iil of (;osts, that no sif^ned hill delivereil, is a statutory one, and notice nnist lie L'iven : Jjiiin' v. h'/diiii/, 7 A. & I']. S:i ; /toluii-sini \.' /{oluiitl, (i iJowl, 271 ; 7 (l ( ". ].. J. l.'t:.. If sifj;ned iiill delivered to one of several joint contractors it is sulKcient : Mmi/ v. Smith, 4 11. it N. '.VIA. As to the heading and contents of hill, see Hui-jli \ Ohxci/, 7 K. k 15. r>7.S ; Piijut \. CnliiKiii, I H. & N. 8;{7. If note j,dven for the l)ill, non-delivery one month hefore action would he no answer : Jcll'nii.i v. /'Jrtiii-', It M. it W. ■_'!(). W'iiere three Attorneys comnieneed an action, and one only sii^'ned tiie liill, //'''/ insntlicient : Siil/irriii ct dl. v. llr'nhjci, f) I'. (', I'l, .S'J'J. As to the rights of Attorneys on their hills of costs and defences thereto, sec lloh. it Jos. Digest. 'A'l'l ; H.* & b. :h-d Kd., title, "Attorney;" Chittv'.'' IVec. r)!», H .■<>',;., .Slit. r.S.-), (iSH ; Itoscoc's X. I'. Kv. ATA ; Fisher's Digest, 47>S, I'l sri/. • Arch. I'rac, "Attorneys."' It is suhniitted that in an action hy a medical man for his services, it is not necessary for a defendant to give notice of statiitnry defence in order to conijiel the iilaintilt' to prove registration un<ler the "Ontario Medical Act:" Rev. Stat. cap. 14'2. l'.y seetinn'"4() of that .Act, he shall not ])riietiee for "hire, gain, or hope of reward," it not registered, so that jM'oof of rcgistr.ition is part of the cause of action necessary to he proved : Anison •/>(! tiini v. M<>.->.ioj>, '_'!» V. ('. 15. 500 ; aihlxm v. liui/i/, 'J H. it ('. !)-' ; srr also section 'M') of tliat Act. Should one who is not an Attorney sue on a 1)111 of costs, no statutory notice would he necessary ; neither, it is sulmiitted, would it he necessary where a medical man is not registered. Section '.V2 of the I'higlisli Medical Act is dill'erent from ours, so that registration at the time of the trial merely would not lie sufhcicnt here (see Turner \. Rri/iin//, 14 0. li. X. S. H'JS) ; ;;nd if action hy two medical men, hoth should prove registration (//>.); and the A(!t is not contined to cases where the ])atient is sued : A/runz Dc Id J'osa v. I'ri>'fo, 10 (.'. M, .V. S. 'uH. .As to proof of registration, see section 1^6 of our Act, anil Pi'(/;in// v. C/irnillirr, 8 <'. H. X. S. •24(;, .and Tioscoe's X. P. Ev. KUli Ed. 484. As to the rights and liabilities of medical practitioners, see Fisher's Digest, .5782, <'^ .wy. ; see also Lcwnn v. FlHrhn; b. H. 8 Q. H. .310 ; Berni v. Jfciidcrsoii, b. n.r>(.l B. 2!»(); Lcinaii v. Ifoiisrhii, b. R. 10 Q. B. ()(>. " Xo notice need he given of any ilcfence under the Statute of Fr.auds : Ihittoincre v. //n>/('s,i) M. it W. 4")(!; livadc v. Liiiiih,{\ Ex. 130; Jh'iiipKci/ ct.dl. v. Winxlinilcji. Ct \i. (■. H. 40!). It may he state<l generally that where a cause of action would l»c enforceable hut for the interposition of some statutory provision avoiding tlie contract, then notice of such restriction should he given ; hut where the cause of action only commences with the suit, or is prohlhitcd, exci'pt under certain circutnstivuces, then notice is not necessary. It is difficult to reconcile the English cases on this point : see Lfiif v. Tatoii, 10 M. & W. 397, 398. (7) See Stanton v, Stt/lcs, 5 Ex. r)78. (r) This is following the rule observed in Ibhett v. Leaver, 10 M. & W. 770, And Youiiy v. Otiycr, (> C li. 552. The object ia to raise a distinct issue, which ■■>'.:M'' .' • • 'V as. 94, 95.] JUPdMENT ON SET-OFF. 123 ;«' . IM. I' tlif' sot-olVprovoil t<» the siitislactioii of tlio .luik'o n'^''"" ('.vc((i'ils tli<! Miiioimt shewn to Ik* tliio to tlio i)liiiiitil1', the "V""'".V'"" ' I'l.iiiiiiii, |)|;iiiiti(r sliall l)t' nonsuited, (.s) or, in tiie election ot'tlie de- foiulant, jii(l'.,'nient niay Ue yiven t'oj* tlio detendant, in vldch liittei- case sncli si^t-oH' shall bo tlierehy satisfied oidy to tho jiiiioinit fotind due ilu! plaintiH", and no further; and tho Jiidife, in such case*, may adjudicate that a s|>ecirie(l amount of s\i( h S(!t-o(f be satislied by such claim of the j)laintilf; l)iit such adjudication shall bo no bar to the recovc'iy of tho msiduo of such sot-off. 32 V. c. !23, s. 17 ; 39 V. c. 15,8, 1. WITNESSES AND EVIDENCE. SUIII>(E\AS. JK"*. Any of tlio parties to a suit may ol)taiii, from the ^iI[,|S',',^^'"|'If (Ijurk of any Division Court in the County, a sul)i)a'na (/) {:';;.';^" '■■"'" parties may oitino prepared to try. An aincndiiiciit could lio injidc if mcessiviy miller Kulo 118, or an adjournment under section H[) and Rule 140 : see 1 L. ('. li. 7. (.i) 'I'lic section will be found at page ].'>], f'on. Stat. I'. C The amount of a Ket-iiff is not now limited ; hut if more tlian the plaintiff's claim is provitl to tin; satisfaction of tlu^ .ludge, the defendant has the option of the plaintill' bcinj^ non- suitod or judgment given for the defi^ndant ; in which latter casi' both claims arc satislied ; or the .Judge may ]>roceiul to adjudicate upon how nmcli of the set-oH" has heen satislied. Hut the section, it will be observed, goes on to declare that "such adjudication " shall be no bar to the recovery of the irnhhicui i\\i\ .stt (;il': sue lliinirll V. Fiiirlttnil, 'A Ksp, 104; /'(ir.soiis v. Vrahh, 31 V. ('. I!. 447 ; Law Ivfpoits Digest, 1 \'M). In cHeet, where the set-olf is prov(;d to be more than the ]p!.iiiitilf's claim, the latter is satisfied, and so is the set-otF, to the amoinit of the plairditf's claim, leaving to the dcfemlant his remedy f(tr the recovery of the resiiliii' of his set-olf: si e l''orms r>7 and oS. There appears to be no limit to the amount of set-off that the Judge may in(|nire into. it) If you are not certain that yoin- witnesses will attend at the sittings voluntarily and give evidence, you must subiia-na them. (See form of Snbjxeua Ne. '}8). The duty of atteixling is created liii tlic srrrtrc, and by that means only. 'I'he law was that, even if found in Court, a witness might refuse; to be .s\V(irn unless subixenatid : Jimrlcs v. Ji)lni-<ni), 1 W. Hlack. 'M'>\ but see section !t7. The (Jlerk issues the subjiiVMia. It is very (juistionablc whethei' or not the writ can be isstieil in blank: linrhcr v. Woo'f, '2 M. & Iiob. 17-. Tlu' subjxcna iiuist name tli. p! ^! tria^: MiUim v. Dnij, 'A M, & I*. ,S;<H. A'so the jiaities to theei'ise: '()."«. '.7r/ (•.'.■■' V. 7Vt')//(.vo», 1) Dowl. 018. If notice of changi; of place of sittiii ■ J* st.'A up at place designated in .subjxena, witness is l).iuu<l to attend » her place: ( 'pinan v. Dnrit, 1 1 )owl. N. S. '2'A{). 'I"he sid)p<cua < . to the whole tings, if more days than one: Sr/m/rfi v. //i'foii, 10 M. il !.■). The names of all the witnesses should 1)e inserted in tlu^ original {Mm I ft v. Hunt, 1 C. & M. 752); and any nundier can be inserted in it: s. Itti, and 4th ite i of Tariff of Clerk's Fees. The suljpaMia need not be personally sorved ; it may be left at the "usual place f)f abode" of the witness (see sec. 97) ; except perlifips for the purpose of 1 iging the witness into contempt ((Idnhn) v. Crti-swcU, U M. & VV. 319) ; and for tuo latter purpose the original should be proved 1 . -r. -^ ,' ..-y.^' H,. '■■ " I -■:■"..■. ■;■■:■ ■ *\r .-(l '-i i- "..v •» •>.■(.. . , - , .v.', ..,*. ,-. ^.'iiri^ ■»» .' ;■>(;.'■'■, ■ <• .'<> ■Ji V.J3^..'<-.r-.f:^v>v. 1 '-tCV.. ,i.^.^--;,.v. ■ ■ ■■ /.'"••" :.■> , 4 '"^■. » rf 124 WITNESSES AND EVIDENCE. [s. Sif) to have been shewn the witness : (Pif( ler v. Khuj, 2 D. & L. 755), even if an Attm - ney (Smith v. Tnttictttt, (> M. k (J. '2()7) ; '>iit in any ease if the witness ie(|njres ti> see it a reas(>nal)le time afterwanls (see notes t(t sec. 7-), and is refused, serviti' is defective : iVrstlii/ v. ,J<nii'i<, ") Mnore, l(>'i. 'I'iie copy must in all c:ise.s l)e Ici't with, and not mertdy siiewn to, the witness {'J'/iorpt' v. (lixltitnii', II Moore, ."i."i : Jn f( Holt, Wceivly Notes, 187!', 'lage 48); and tliere nnist be no niistaive in the <l.iy : Diiv (I. (J/arkr v T/ii>iii/)S(iii, !> l)ow"i,!U8. Service is not eU'cctive withoiu the necessary witness fees being paid or tendei'ed: Fuller v. I'rinflrc, 1 H. |{lat.k. 4!>. 'J'iie fees inchido i!X}tenses of going to, staying at, and retuiwiing from tlir trial: //». ; Ncirtun v. //(irl<tiiil, I .\1. & (I. K")!) ; also see Tavill' of Witness Fees. If tile attendance of tlie witness l)econies unnecessary l)y suttlement of tlie ease or otherwise, and lie is infoniied of it l)efore expenses incurred, tiie sum may he recovered l>,vi'k: Miirfiii Vi- Ainli') irs, 7 Iv & H. 1. Tlie fm'S are lixed by tirill'. and no distinction can |)ro[)erly be made in Division ('ourts in aiiiouiit as to aii\ class of witnesses, except under set-. !I8. If a larger sum than what a witness is entitled to is lionn Jhlc demanded, he will not be brouuht into contjiiipt: JVcwfdii V. Ilnrldiiil, sii/tni. If a party refuse money teudcivd him, saying he will ]»ay ins own expenses, ho is sul)jeet to the same conseipiciiees as if jiaid: (liiiaih or (liiif \. Milhrar Mills, '2 I). & L. '2',i. I'he fee need not lie tendered to the witm-ss at the time of service; a reasonalile time before tlif sittings is siitlicient: \V<hl> v. /'diji', I ('. it K. '2'^, W'liere a witness had betii br<iught to the place <if trial by one '.arty, the other, iindiiig him there, siili- pu'naed him, it was //•/(/ that without :iM>di;r of expenses he could do so (I'jdniniids V. PiarniDi, .'{ ('. & 1'. 1 IS), and that the witness could not refuse to be cross- examined on tiiat account; Ih. In a lat>'r case, however, it >vas hilil that t!ic jtarty culling him was bound to pay all his exjiciises: AUoi \. Yo.aill, 1 ('. k K. .'il.">. Service iiiiist be made a reasonable time before the trial: ]l<irt<<f \. Witiiit, '2 M. it liob. 17-. What is reasonable nuist de[)eiid on the cireuinstancis of each ease {Mitinixi'll v. AiiiKwarlli, 8 iJowl. 8(i!l), and is in all cases a (luestinn for the ('(Uirt: Ihtrlwr \. Wool, supra. If notice is given witness that cause not yet tried, he is boiiii 1 to attend, though nftcr the day menti(med in siili- piena ( />fnv'.y v. Lunll, 4 .\!. it W. ()7S; hut see (iniiiflnnii v. Jiis/i'ip, 1 ('. I'. •J.'{7), though not siitlicient t.) hriig him into contiMiipt : Alc.nin Irr v. lii.iDii, 1 IJing. 'M\i\. ServM'i' may l»e made any hour of the day or niglit, but not on Sunday: /»''■;/. v. Ltnininsl'-r, 1 H. it S. .'{!>l, and cases cited. If the witness he a married woman, tin; money should be tendered her, and not her husbaiid : Arcii. I'rac. I".!tli I'M. ."{."(I. \ witness may refuse to attend or give evidence until hi ; expenses are paid him, and if he does attend the expenses of returnii;t; aie to he included: S'<iifii)i\\ llnrlitnil, 1 M. it(i. '.(r)t>. A witness may also maintain an action for his tees against the I'arty who subpo'iiaed him, thouj^li h..' ri'fiises to give i'videnc(' hecause such fees are not j>aid him, v.' ' he was tliereujion not i!xamine<l: llnllif v. .\fnirs, \'A Hast. I"); Pdlv. iJni' ,-i/, .T lv\. '.>.">"», The .Attorney is not res]ionsible unless he agreed to be: Pohiiixv. Iiriil<i(, .'{ M. it W. 1 14. A witness should be served a reasonable time to allow him ti' put his atl'airs in order (Uniiiiii'iinl v. Sf'inir/, 1 Strange, 51 0); luit urgent «lomesti(- business is no exeiise: (iniii/h <ir (iii[i'v. Millrr or Mills, '2 I). & I,. 'Jil. A summons may be served in a < 'onrt of justice on a |»aity subpo-naed to give tjvidenee in his own cause: I'oiilc v. <l(nil<l, ! H. & N. '.(!'. DilHeiilty in serviiiL: does not tlispense with the necessity of service: Barnvsw WiHitnns, 1 |)o\\l. lilT). If witness paid by both parties, neither can recover it back : ^'ntinjitun v. llufliHi, ;< Taunt. '2',W. \ party to a cause, iilmiir to utti-ml t/ic Irinl on his own account, has no right to conduct money or ex|)enses when snbpceiiaed by tlie other side: Uicd v. Fdirliss, ,'{ K. it K. !t.">>S. A party to a cause is not ontitl'il to his fees as a witness unless he expressly attended to give evitlenee on Ins 4iwn belialf, ami not to snperiutt.'lid tin,' cause [llinccs v. Ititrlwr, 18 Q. W. ,")8"-i ; and tlie athliv'tof dislMirsements should ilistinctly shew that fact. It is not a general rule in England that parties, if witnesues, arc to have an allowance \ii^" S, ['■'.] Sl'BPtENA FOn PROnUCTIOV. 1-25 r Willi or without a clause for tho productiou (>/) of books, |ta]it'rs anil wi-itin<fH, requiring any witness, resilient within tiie (j'ounty , (<?) or served with the Hub{)n>na therein, to at- ti'iiil at a specified Court or place before the Judge, or any arttitrator appointed by him under the provision hereinafter I'out.'iiued, and tlic CMei-k, when reij nested by any party to a suit, or his agent, shall give copies of such subpcensi. C. S. U. C. c. 19, s. 97. fur their attendance on tlioir own behalf: Dmcdcll v. AiintralU'ii Uojial Mn'il Sb'iiiii Xdi'hjtithni Co., 3 Vj. iV H. 0(12. A witness slioiild bo called on iiis snli- l)a'ii;i: /.Vx v. Sfrcfr/i, S A. & K. r)O.S ; Dh-on V. Lrc, .S Dowl. LMO. But if it can lie slicwn he did not attend it is suflieient: flofy. Mills, 2 I). & L. 2.S. It ia a sutKciunt excuse tliat lie wa» too ill to attend [Jacohx, In re, 1 H. & \V. 123; Srh'ili-.i V. Hiltnii, 10 M. & W, 1")) ; hut it is no excuse that lie would have heeii ill time if a jirevious cause on the list had not iiiiexjieetedly gone oft' ( ll<r v. F' in., '.\ Dowl. 54()), and that another person had answered for iiini and would have tpti'liiii him in a few minutes. liefore [iroceedings for conteinpt can he taken, it iiiiiHt appear that he was a material witness: Thih ij v. I'urtir, 2 M. k W. S'iJ. To sustain an action against witness, if party cannot proceed with trial, it is sutHcient without calling jury or otherwise entering on the trial: Lutnont v. Criiiik, (i M. & W. (Hi), if a witness has received fall fees from one side, ;iiiii. when served with su!)])<eiia on the other, consents to receive a nominal sum, he is still lialile to the latter if he does not atteml {/Jit/rln/ v. M' Lfotl, 'i Kii.'.'. N. ('. 40")); hut actual ilamage nnist he shewn in any case: (.'in<l'ni<i \. riuc, () ( ". H. 70.S; YkUhkiii v. Diiiijin //, \) ('. li. \. S. 881. During the attend- Hiice and returning home the witness is privileged from arrest on civil ])rocess : Mniil'iiiiii' V, /htrri.ioii, .St'. H. N. S. 2!)2 ; Kini/ilini v. I^oikI'ih (iml Nart/i IVcMern Rdilmii/ (Jo., i> Ex. 7t)(). On the suhject of suhjMenaing witnesses in time, see Article at l)age ()2 of 1 V. ( '. I>. .1. On the (piestio" "enerally, see lloh. &, .Tos. Digest, l.SO'.t; Koscoe's N. 1'. J.Sth Ed. Ki'l, rt sr,/. (ti) This is called a diiri's tfi'iim. A witness called to ])roduce <a document iifcil not he sworn ; nor nnless made a witness in the ordinary way can he l»e cioss-exan-'ned i/'trri/ v. (I'lhsmi, I A. & K. 48) ; and if sworn hy mistake he saiiH' rule a))iilies: /fn.yfi v. Sniitli, I ( '. M. & \l. !I4. It is incumhent on the |initv to hiing the "hooks, papers and writings" with him, and if he does not lie is priiii'i tiic'ic in dcfanlt : Aiiici/ \\ /.on;/, !t Mast, 4J'A. Having a lien on tlicm was lii'ld no excuse for not jiroducing tiiein ('J'hiniip»<>u v. Maxley, it ('. (^ P. oUi, i^i'd iiiiiirc) ; nor can he shew that the document was not material : line v. Kill II, 4 Dowl. 273. If a witness who is sworn has a document with liiiii in ( 'ourt, he is hound to produce it, though not served with a .luli/in tm iluct6 ''(•inn : Snvhjroi'e v. Slrrnif, Car. it .M. r>U8 ; Fiirlii/ i-t <il. v. (Irnhinn, !> V . « '. H. 4HS. A servant cannot he brought into conteiiipt for not piodiicing hooks and jiaiiiTs of nis master in his jxissfssion, which the master will not allow him to tiring: Cnniiliir v. Ai'pli'hi/, !,. H. \) V. V. 2.'J. and cases cited : see In re Emma S'llnr Miiiliifi ('oni/Kiiij/, li. R. 10 Ch. 1U4. The remarks made in the ])rovions iiiitf have ajiplication liei-e also. As to c( rrohoration of witness, see Findlry v. I'nidn cf id., 2(5 ('. V. 483; and recalling liim, which is in discretion of the liiiige: U'li'itson v. Willinm.o, 27 C I'. O.S. As to Kvidence generally, the •stiiilint is referred to the works of Taylor, Hoscoe and iSte]ilien on that subject ; l!oh. &.)o8. Digest, 128:Uo 1411 ; L. R. Dig. 1140 to 1184; and Fisher's Dig. r.."»4 to 3826. (i) A Division Court subpama has no efficacy outside of the county in which it it) iasued : seo aeu. 1)8. ,.-.r<i!»f:v.> h ■•-^•?-'.':v;:^5i;i-!.', . *•■-•» 4.,. J ■*. " •', • . ■'•■'• ;^ '"■'•'■ ^r-i'^'V ■ .«s->';.;4.J. . . I - J.;. ;..*?. '»:^<rt * .• i'-i -*v-^^' • .. . -■ .♦*.'••.'■.■ , ' . * •, « •,■ ' '. I •• f, ' *iT.V' ■■• ' jr ^m -« •f 126 SERVICE OP SCBP(ENA. |ss. 9G, 97 4 ". •■ ■ ■ ■■ . - *• jt.V-, Services of j^» ^^y nuinbci' of niiuies may be inserted in a sii})- 8uii|Ki;ii,'i, by •' •' whom lauiiu. p(Diia, untl soi'vice thereof may b(3 made by any literate j)erson, {in) and [uoof of the due service (x) thereof, to- gether witii the tender or payment of expenses, (//) may he made l>yalKdavit, and proof of service may be rtceived In the Judge, eitlier orally or by atHdavit {z), (J. S. U. C c. 19, s. 98. P.iiuity for J)'y Every person served witli a copy of a subpo'iia. di.solii-yii.g . . fubiia-iia or either personally or at his usual i)lace of aV )de, (a) and to refusing to '■ -^ . ' . . bosvvoiu. whom at the same time a tender of payment of his lawful expenses (b) is made, who refuses or neglects without siilli cieut cause (c) to obey the subpcena, and also every per.suu in court called upon to give evidence, (</) wlio refuses to lie sworn (e) (or utlirm where allirmation is by law allowetl) ni (w) Aa to mode of sorvioe of subpuina, and \>y whom served, the reader is referred to tlu; notes to sections 7- and 'Jo. The Jiailitl' should nuike a inenio- randuni on the sul>p(ena of time of service, of the mileage, amount paid witness, &c. li U. C. L. J. 124. (x) See notes to sections 7- and I)."), and Baker v. Coijhlan, 7 C B. 131. (//)Tliese are re>^ulatcd by the tarill'. Tlie Suiterior Court tarili', as to tlie allowance of fees to l}.irrister..-i, I'hysicians, Surgeons, JOngini'crs and Surveyors, 18 not a[»pli(':ible to |)ivision (.'ourts. 'I'lie iJivisioi^ Court tarill' prescrihfs tiic limit of allowance to all classes of witnesses: mm Uartitrll \. The *!>'<'.« /o/w nf Pniicott. ami /lu.s.'«'ll, '2(» IJ. C. U. 4:{(). (;) It is suhniitted that the best proof, and what would be a proper record of the facts, would be l)y aliidavit. {a) As to wiiat is a man's usual place of abode, see the notes to sections (>'.' and 7*2. Thi.s provision as to service at the house is mucl after the law laid down in Mnllitt v. JIuiif, 1 C. & M. 752. It is a practice to bo avoided as uniili as j)ossil)le. {!)) See notes to sections 05 and OlJ ; also Rule 147, and the Tariff. {r) What is suliicient cause must depend on the circumstances of each parti- cular case. It need scarcely be said that sickness is : Srlid/cfi v. lliltnn. Id M. & W. ir. ; ,larul>.% In n;' 1 H. & \V. 12;^ ; see also Arch. I'rac, 12th K.l 35(), title, " Means of Kviilence and Witnesses." ((/) Any person in (lourt can be called \ipon to give evidence in a case. On the authority of lioinlit v. Ji>hn.ion, 1 W. Hlaek, ."{ti, the law would not have been so witiiout tiiis provision. It is doubtful if he can be compelled to take the oath without tender of his witness fee. (e) " All witnesses ought to be sworn according to the peculiar ceremonies of their religion, or, in .s(a7( manner ;\?> tiiey <leent /*/'//'/i/((y on their consciences : Tay. on Kv. sec. I2.m. In /.'<;/. v. Pafi-Ma/i-da;/, 20 IJ. ('. K. 195, on atrial for munler, an Indian witness was oll'ored, and, on his examination iiy the Judge, it appeared that he was not a (christian, anil had no knowledge of any eereinony in use among his tribe binding a ]>erson to speak the truth, ll ap2)eareii, liowever, that he hail a full sense of the obligation to do so, and that te-i;-:- 98.] SUBPCEXAS FROM SUPERIOR COURTS. 127 to '/we evidence, sliall pay such fine not exceeding ciglit ilulliirs as tlie Judge may im})ose, and sliall, by verbal or written order of the Judge, be, in addition, liable to im- prisonment for any time not exceeding ten days ; (/') and such fine shall be levied and collected "with ci.sts, in the sauu' manner as fines imposed on jurymen for non-attend- ance, and the whole or any part of such fine, in the discre- tion of the Judge, after deducting the costs, shall be apiilicable towards ind(Mnnifying the paity injured by such refusid or neglect, and the remai' ". • thereof shall form part of the Consolidated Eeveuuo 1' .. 1. C. 8. U. C. c. It), s. U'J. OS. Any party may obtain from either of the Superior Parties inay Courts of Law, a subpoMia (7) requiring the attendance at I'onas from . . . Sui.ciior the Division Court, and at the time mentioned in such sub- Courts, pcuna, of a witness residing or served with such sub[)a'na in liny part of Ontario; and the witness shall obey such subpiena, provided the allowance for his expenses, according lie ami liis tribe believed in a futiu'c state, and in a Snprenie Being, who created all tliiMi^s, and in a futiu'e state of rcward.s or iiunirilinu'nt according to their oiuiduct in this life ; it v. ax /ii/d that hi.s evidence was adiiiissildu : .see Foriri of Oaths, Form No. 110, and Kale \',H. A (piestion eanmit ije juit to a witness on ci'oss-cxaniination for the mere purjiose of cuntradicting liim, iinlesH such question be relevant to the matter in issue ; and if such qncstion ho put, the answer is conclusive: <!ilhn-t v. iloodcvhiiiii ct iiL, (5 ('. V. .'}!(; Tay. t)n Ev., ss. I'-'IU to l'J!)(); MHJnlUicli v. (lore District Mutuul Fire liit<tirait('< Coinpdiiij, U V. C. R. ;W4; Kob. & Jos. Digest, 1344. (/) In the ease of In re Pullard, L. Jl. '2 P C, page 120, it is laid dov : that "no person should be punished for contempt of Court, which is a ei.minal offuncc, unless the sj)ecitic otienee charged against him be <listinctly stated, <iii<L ail iiii/iiirliDiiti/ of (inswrriiii/ it (jircii fa liini.'' At page .'VJo "f Maxwell 011 Statutes, it is said that, '"in giving a judicial powi;r to alVcct ) . iiidicially the rights ot person or proi)erty, a statute would be understood as .^iliutly imply- ing, when it did not expressly provide the condition or ([ualilicatioii, that the jiiiwcr was to be exercised in accordance with the rule of natural justice, that till' person liable to be prejudicially atl'eeted should lirst have an opportunity of (litViidiiig himself :" see also TlntrlHirn v. liuriKs, L, I!. "J ( '. V. WsX \ linlUii v. Mu.i.li, ,t at. I.S V: P. l'J<), and 2 K. & A. a?!* ; Xir/ml/.i v. ('ininniii;/, I ,Sup. K. Hit"). As to order for imposition of line, and the entry to be made by ('leik, see i'orms ~'A and 74. {ij) \ subp(i>na under section Of) only extends to a witness "resident within the ( Ounty," but, utider this seeti:)n to any one " residing or servi'd " any where ill tlic Province. It may be tested the day it is issued : Hev. Stat., page 770. Koniierly it was not so : Etlyll v. Curlimj, 7 M. & U. 1)58 ; FiJti r v, (Jrace, 'JH U. t'. iC a 12. / Cc (Ci. <^s cLyy L!^t,.-l«_-i_-< /v 7 .Ix / i J ?r<? ^u'-^h.^.u.z ^'■"i. ':..:^^2^- ■• ■■■■ I ■?•*■. . .• d ■■'. i- :ri/ '1 *.S»'?/ '-in?'.'--- V 't:"t-'*''»- '■C-^'^'*.■ :-!-t\'. \-l^ WITNESS FEES THEREON. to tlio scale settlftd in tho said Superior Courts, (A) he ten- dered to him at the time of service. C S. U. C. c. 11), s. 100. [s. 99. .;-*■ ^ . r -W ..• Power ff) issue colli inissiiins to tiike CVUllillCf. COMMISSIOXS TO TAKE EVIDENCE. ?HK Tu ciiso the i>laiutiiF or defendant in any suit in any Division Court is de.su-ous of having at the ti-ial thereof the testimony of any person or jiim'sous residing (/) without th(! limits of the Province, tlie Judge of the County Court of the County wherein sucli suit is pending, may, upon the application of such plaintitf or defendant, [k) and u[)on hear- ing the i)arties, order tiie issue of a commission or commis- sions out of and under the seal of such County Court to a commissioner or commissioners to take the e.x^amination of such person or ])ersons respectively. 39 V. c. 15, s. 3. (/») The fallowing is the Superior Court Tariff: $ c. " To witnesses residing within three miles of the Court House, jivr (Item. 1 00 "To witnesses residing over three miles from the <'ourt House, 1 25 " Ij.irristers iind Attorneys, Physicians and Surgeons, when ealled upon to give evidence in eonseijuenee of any professional services rendered hy them, or to give professional opinions, /)(■/• illrlll 4 00 " Engineers and Surveyors when called upon to give evidence of any professional service rendered liy tlicmor to give evidence, deiieuding upon their skill or judgment, jxr (I'ti-in 4 00 " If the witnesses attend in one cause only, tliey will be entitled to the full allowance. If they attend iu more tlian one cause, they will l)e entitled to .i prr)portionate pait in eacli cause only. The travelling exi)enses of witnessts over ten miles shall l)e allowed, according to the sums reasonahly and actually jKvid, hut in no case shall exceed one shilling /xr mile one way :" see '2',i ('. I', page 4.S8. The Clerk eaimot tax more to the party issuing the subjtiena, it successful, than the dishursemmits for the suhpiena and the witness fees. No Attorney's charges for issuing are taxable : (5 L. ('. <!. 144. (i) As to the meaning of the word " residing," see the notes to section 6'J, 71 and 72. (k) The application can oidy be granted according to the conditions iniposei! by section UK), and will not generally be entertaiiustl until the defendant lias put in his defence {Monilil v. Stfi'li', 8 M. & W. ."^01); Fhuiri/ v. Ihi'xh'n, 17 l^ B. 8(>), not even to ex)>edite proceedings: Alhtn v. Amlriir.i, rt 1'. U. .S'2 ; but see Fitrlnr v. Ilnhii, \'.\ C. H. N. S. t».")0. This more partieuiarly aii[ilies when made by defendant (liri/iliji-.t v. Fisher, 4 M. & Scott, 4.'»8) ; but it also applies to the plaintitf: Pirif v. Iron, 8 Hing. 14.S. Sonu;times a })arty might have tiie onler on undertaking not to act on it until after defence put in : /hmi/ull v. Mmxiic, 1 IT C. R 257. 'I'he a])plication must be supported by afhdavit {AfrNiiir v, Shclditii, Tay. 451), which should be entitled the same way as the order, panMia. The granting of the order is not imperative : Mnir v. A mlvrsun, 11 U. C. U. IGO ; dnurr il* Jiidrr Siwimj Muchiiu: Voinp(tn>/ v. Wchntei; t) I^. J. N. S. 180. Api)lieation should be made within a reasonable time after the defence put in {Bnjilijva v. Finher, 4 M. & ISeott, 458), partieuiarly if made W.] APPLICATION FOR COMMISSION. 129 but the and by defendant so as to exclude tlie idea of a purpose to delay the trial ] application will not he refused unless upon a strong case of misconduct, unless made for the purpose of delay (Spdrk'^n v. BarrHt, 5 Scott, 402), when it will l)c refused : Lloijd v. Ki'y, 3 Dowl. 253. (Jreat delay even is not a ground for rejecting the application {liiniie v. Jaii.wn, 2 (i. & D. G30), though the aiiKHiut in dispute be small (Dijev. Bennett, DC. >. 281); hut if delay is the object, a defendant will he reijuired to pay moK y into Court {S'pnrkes v. Barrett, i) Scott, 402), hut not otherwise : Birnie v. Janxon, nupra. The rules of practice are 'lot to he extended t<i allow the evidence of experts to Ik; taken un(ler com- mission : Kv.Hse.ll V. Great Western Railway Cunipani/, 3 U. C. L. J. 1 16. A roniinissiou for the examination of a party will not he granted unless it is clearly shewn that it will he conducive to the ends of justice (Price v. Bailey, «) 1'. U. 2">(> ; Fliclier v. tfahn, supra) ; in which ease the fact of a person's living <nit of the jurisdiction was not in itself sufficient: CaMelli v. Groom, 18 Q. H. \%). If defence not entered, satisfactory reasons would have to he given liefore granting order. The name, and perhaps the residence, of the witness lOiould he stated {Gunier v. M'Tear, 1 M. & W. 201) ; and that he is material (imif V. HaijKhaiC, 16 G. B. i)76) ; and that party cannot safely go to trial without his evidence: Baddelei/ v. Gilmore, 1 M. & W. .'),) ; Jlea/i/ v. Youmj, 2 vJ. B. 702. In general, it is unnecessary to state what fact witness is to he exannned upon : Ahrukani v. Nfi^ton, 8 Bing. 274. The name of the proposed ciiinuiissioner should he stated (Doe v. Phillips, I Dowl. 56) ; or must api)ear on the hummona or application: Fearon v. White, 5 Dowl. 713. It is not in genera' necessary for a defendant to swear to merits, or that application is not maile for delay ( Wedniorflaml v. Hmjgins, 1 Dowl. N. S 800) ; hut if order for ceniuiission stays proceedings, that part of it will he rescindeil if delay api)eai's: liatlrr v. Fox, 9 C. B. 199. The affidavit could he nuide hy the Attorney or his clerk having the management of the suit, or hy an .agent tif the party apply- ing. The fear of a witness tc suhmit to cross-examination heing suggested is no answer to the apj)lication : Carriithertt v. Graham, 9 Dowl. 947. It need not mijiear that any effort was made to obtain the attendance of the witness (Norton V, Mdhourne, 3 Bing. N. ('. 67), or that the defence is true: Wextmoreland v. llii(jijiu!<. 1 Dowl. N. S. 800. It is no conclusive answer that there .are witnesses within tile jurisdiction who can swear to the same facts: Adamti v. Corfield, 28 L. .). Ex. 31. The application under this section should be by summons to shew cause : Doe v. Pattifimn, 3 Dowl. 35. Evidence improperly taken can he rejecte<l ut the trial: Lumle;/ v. Gi/e, 3 E. k B. 114. The time, jdace .and manner of cxiuninatiou should be fixed (Greinlle v. Stultz, 11 Q. B. 997 ; see also Simnm v. H<mbrson, 11 Q. B. 101."> ; hut see Farrel v. Stephens, 17 U. C. \\. 250) ; but will he waived by .appearance of o)»po8ite party to cross-examine : Hotckinx v. Baldwin, lt> ti>. B. 375. The order will he made to suit the circumst.ances of each case : Mills V. Wellhanl; 3 Scott N. K. 177 A time is usually fixed in the order for return of commission, but it can beextendetl : Clinton v. Peahodi/, 7 M. & (4. 399. if fust commission proves abortive, a seconil will he orderetl : Fixher v. hafaray, h. H. & E. 321. The order usually cont.ains a stay of [)roceedings, but only for limited time : Forbex v. Wells, 3 Dowl. 318. A copy of the order shouhl he served on the opposite party. The following are given as forms of affid.avit and order for commission ; but, shouhl any special provision, such a.s stay of pro- ceedings, be recpiired, it can be inserted in the or<ler : In the County Court of the County of In a cause in the Divi- ] I, A. B., of, &c., the above n.amed plaintifl', sion Court for the County of I herein make oath .and say : in which A. B. is plain- i 1. That this .action is bi-ought for the recovery titr, and C. D. is defendant. ) of (here, state shortly the caute of action). 2. That the defendant has filed a disputing notice herein. ■ K'. ■'!'«■ ■''■'(■<•' 'k.-J V.'.' "■?. >•*; '^ - m p ;.i .'t;, ■<■ ■■••'.^';.';* ■ •!,•,■<,. H,.-:.;^>..; ,' .. '1 ■ 'V»^*v,. '.'.s.'i f,- ' ^^ ;.\-*.' v.'.V '>,.'■ . ■ t ■-• t' ..',•1 *> ., '. '".',>Jt-. -lij-./'t,:' \ ■•-■•^..^.'Vh'v.-', ■ ;".'.'iV'^">.'i' ■)' I h • 1 f/i''feaaiyiiiyiyJ V ■ ^P" * ,1 130 AFFIDAVIT AND ORDER FOR COMMISSION. [s. 09. [;in i^V < ■ - , 3. That E. F. is a material and necessary witnes.T for me in the said eausu, and T am advised and verily believe that I cannot safely proceed to the trial i>f it without his evidence. 4. That the said E. F. is at present residing at , without the limits of the Province of Ontario. (If nutde by the defendant, add the folhrnnij): 5. That 1 have a good <lefence to this action on the merits, as I am advisuil and verily believe (or, if made by the Attorney or his clerk, say, "the defen- dant has, I am inL-tructed and verily believe, a good defence," &c.) 6. This application for a commission is made bona Jlde. for the purpose of procuring the evidence of the said , and not for delay. Sworn, &c. In the County Court of the County of In a cause m the Divi- \ Upon hearing the parties, and upon reading sion Court for the County of ( the afhdavit of , I do order that in which A. B. is plain- 1 the plaintiflF shall be at liberty to examine ui)iin tiflF and C. D. is defendant. ; oath E. F. of, &c., one of the witnesses in tlic above mentioned cause, and now residing without the limits of the Province of Ontario, upon interrogatories to be administered to him on the part and Ijtliiih' of the plaintitiby pMd before 6'. ]{. of, &c., (addition) at the said nf at such time and place therein as the said G. II. shall tlaru annoint, the plaintiff, his Attorney or agent giving previous uotiie in writing of his intended examination, and a copy of the said interrogatories to the <lefendant, his Attorney or agent ; and th.at the defendant shall hiivi' the riglit to administer cross-interrogatories, and to cross-examine the said E. F. civil rore ; and the questions so put shall be taken down, and his answers thereto, as well as to the cross-interrogatories, in writing, and returned as part of the examination. And 1 further order that for the purpose of such examination a commission do issue out of and under the seal of the said County Court, according to the usual practice thereof, to the said (I. II., to take the said examination under sucli connnission at the time and place and in the manner hereinbefore men- tioned, and according to the usual directions of the Court. I further order that the said interrogatories, cross-interrogatories (if any), and depositions taken thereon, together with said commission, be transmitteil i.iider the seal of the said (L II., without <lelay, to Clerk of the County Court of the County of in the Province of Ontario, Dominion of (^^nada, at (here, (jire his P. 0. address), on or before the day of next. Dated at Chambers, this day of 18 . Jitdije of the County Court of the County of A copy of interrogatories should be annexed to the commission. If commission not taken out promptly, depositions might not be receivable in evidence : Pon.<<ford v. O'Connor, 5 M. & W. (573. In framing interrogatories, leading qut stions should not'be put, and may be struck out at the trial if objected to liy the opposite party (Alrock v. Royal. Exchan(je Assurance Company, 13 Q. H. '2\)'2]. but not necessarily : Small v. Nairne, 13 Q. B. 840. If either party wants to use a document in the hands of the opposite party, he must give notice to |)ro- duce it ((Junliffe v. Whitehead, 3 Dowl. 634) ; and the examination shouhl, if possible, be conducted upon the same rules as in a trial at Nisi Prius -. lb. A party caimot abandon an interrogatory in part ; he must do it in whole ; Wheeler v. A tkin.t, 5 Esp. 240. "Due notice" of commission must be given (Rev. Stat. cap. 42, s. 22), other- wise dej ositions would not be received (2 Starkie's Ev. 2(54), as the opposite party has the right to croBS-exauuDe : lb.; Attorney-Oeneral v. Davison, McClel. & s. 99.] RETURN TO COMMISSION. 131 Y. 100. If the witness be living in the country when deposition offered in tvideiice, it is not recuival)le : iiev. .Stat. cap. 42, s. lid. The evidence under a lomniission is receivable, notwithstanding the affidavit of examination is made hy tlie commissi'. iier, and returned under his hand, but not his seal : licurfi v. ndi'll, 4 (). S. a. The .signature and seal of (t:-j purporting to be Chief Magistrate to an affidavit of execution will be presumed genuine: Due Lcntolne v. J'<ii/in<»ul, '^0. S. 'Xil. An athdavit that the examination of the witnesses .vas dvdy taken, [ii»t that the commission was duly taken in acc(»rdance with the literal wording of tlie statute, i.s sufficient, and need not he entitled in any cause : MrLiod v. Tormnci', 3 U. C. U. 14(> ; lh,e Park < /. „l. v. //rndi'r.sou, 7 U. V.. R. 18'2; see ■j,ho I'd.'iSinore V. Harris; 4 U. ('. 11. 'Ml. The affidavit of due taking of com- iiussioii need not be signed by the deponent : Wilniot v. Witilsirortli, 10 IJ. (.). R. ."ill4. When commission will be ordered to i>e returned when defectively executed as supi)osed : Due llmj v. llttiit, 1 1*. U. 44. If the affidavit substantially shews coiuinissi(m duly taken, it is sutKcient: Banin'l v. Whitlniv, 14 U. (!. K. 241. it is no (»hjection that one of the witnesses affirmed: Ih. It need not appear tJKit tlie witness was examined where the Mayor resides who takes the affidavit : SO'hliiii.s V. Aii(ler,s(>ii, 20 LJ. C. R. 23!). The envelope containing commission :uust 1)0 uniler the hand and seal of commissioner, ancl there nnist be an affidavit of line taking, otherwise depositions cannot be read : AV/'on/ v. Ale Dunn li/, 14 (;, P. l.')0. The eontr.ictiims "I'llf." and "Deft." in the title of atHdavit of execution no objection (Frank v. Carson, 15 C. 1'. I.S.")) ; nor if entitled in one Court instead of another : Cuni.'<turk\. Jinrronus, 13 IJ. ('. R. 4'M). The atKdavit must identify the depositions : Miltii/an v. (/. T. JtnihiHii/ Co., U'tC. P. liH. If roiniuission taken in Quebec, the affidavit can be taken before a Notary Public there : Bmrdw Sfci-Ze, .'{4 U. 0. R. 4.'J. When the commission was not returned to the office mentioned in the order, it was /u-ltl no objection to the evidence : Sleveii-suii V. Rae, 2 (J. P. 40l». An opening in the envelo])e not large enough to let out any of the papers is no objection : Frank w Car.ion, 15 (,!. P. 1.S5. The coniniission need not be indorsed with the style of the cause, nor need the evidence tie annexed to it, and should be so framed as to l)ind all i)arties to be exannned, :iu I pirticularly as to the mode of administering tlie reipiisite oath to .lews or others : //». A person who acts under a commission, which contained specific ilireetions as to the mode of return, cannot afterwards ol)ject that certain for- niilities prescribed by the statute, but not by the commission, have been omitted: t'niiik V. (^ir-'iun, 15 C. P. 135; /fei/land v. Sro/t, ][} V. P., 1()5. A commission proiluced at the trial in an envelojie ojieii at both ends, but otherwise nnobjection- alilc, was received : (irahani v. Stewart, 15 (]. 1*. U!!). The affidavit of execution may apeak of depositions or examinations as synonymous terms : Mitckh- v. Lud- liiw, !(> C. P. 420. The rigid jirovisions of the statute commented on //>. Entitling defendant's name in the cause in the commission as "William" instead of "Samuel," held fatal, antl the taking of evi<leiice a void proceeding: (Uraham V. Stiir-irt, 15 C. P. lt)!>. Technical objections in Superior Courts /nld not pro- perly to be taken at the trial, l)ut on application before it : //odi/e v. Thunijmon, -G U. C. R. 588. Objections to commission, if not taken, are waived: Farrel V. Sic/ihi'iis, 17 U. C. R. 250. ('hange of the day for the examination laid no <it>jeetion, in Com-stuck v. (Halhraith, 21 U. C. R. 297 ; Coin.stuek et at. v. 7\i/rreU ''I III., 12 C. P. 173, A contraction in the name of a witness in the return of the commission is no objection : //). Where the order was that tlie witnesses should "si^'n" the depositions, but the commission contained no such clause, it was hi'lil that the depositions were receivable : llmltjex v. Colth, L. R. 2 Q. B. t).>2. The oath of the commissioner may sometimes be dispensed with : liuelen V. Mfllddew, 10 C. B. 81)8. Although there are written interrogatories, it is no ol)jeetion that the commissioner put the (juestions rira voce ; (irill v. General, Iran S'-rew Collier Co., L. R. 1 C. P (500. Commissioners have a lien on com- missions for their fees: Peters v. Beer, 14 Beav. 101. A Barrister has a lien for his fees on commission : Smith v. Hallen, 2 F. & ¥. 678 ; seo lloscoe's N. P. ,.-,. V 'J .% '■■■ ■ ■•■:^ •■?;:■■'•.;>•> J:;?M f',a*-.r' ■• • '■ •o.-'>r.S ■ ■,>',• S-; i . , ■ • ' '■ J :. ■; »» • . -■ ■■■',■ ■■■.I '■•■^vki.K'': ■.*.":■'<> ••• ' i li ''" :• 'L- '.. .'•• , ■•••.'.V.v- ■ ■"" ■■« •i\. 132 No commis- sion to tdko I'vidence of tlip person applying,', llllle:)8, &c. WHEN C3MM1SSION TO ISSUE, [ss. 100-10:'. Hev. Stat. v.. 62, 8s. 22 and 2:1, made appli'.Mlilcto cnmmissiuns Commission, &<;. , to 1)1! returniMl to Division Court Clerk by County Court Clerk. 100. No order shall be iiiiule for the issue of any sncli corninission, for the taking of the evidence of the porson applying therefor, or any person in his employment, unless in the opinion :)f the Judge, a saving of expense (/) will be causfjd thereby, or unless it is clearly made to appear that such person or pei-sons are aged or infirm, or otherwise unable from sickness to api)ear as a witness or witnesises. 31) V. c. 15, 8. 3. 101. The provisions of sections twenty -two and twentv- three (m) of " The Eviilence Act " so far as the same arc ap plicable shall apply to eveiy commission issued under the authority of this Act. 39 V. c. 15, s. 4. 10^. The commission, when returned, shall with the evidence taken thereunder, and the papers returned there- with by the commissioner, be forthwith transmitted by the Clerk of the County Court to the Clerk of the Divisioii Court in which the suit to which the same relates is pend- ing. 39 V. c. 15, s. 5. •*i. ■ '• ■ ' :r 13th Ed. 133. An ex parte order can be obtained to open commiasion befon Court. The practice is to open iu presence of both parties : Nealt v. Withrow. 4 U. C. L. J. 88. (0 H the witness does not clearly appear to be aged or infirm, or tinable fronj sickness to atten<l as a witness, then tlie Judge should simply consider whethei the costs of commission or witness fees would be the greater, and decide ii! favour of the saving of expense. If the person should be unable to attend from any of tliese three causes, then the question of expense would not arise ; see Duke of Beaufort v. Crawshay, L. K. 1 C. P. 699; Brown v. Brown, L. E. ! P. & D. 720. (m) These sections are as follows : "22. Due notice of every such commission shall be given to the adverse party, to the end that he may cause the witnesses to be cross-examined. C. S. U. C. c. .32, s. 20." "23. In Cease the examination of any witness or witnesses taken without the limits of Ontario, pursuant to any such commission, is proved by an affidavit ot the due taking of such examination, sworn before and certified by the Mayor or Chief Magistrate of the City or ])lace where the same has been taken, and in case such commission, with such examination and affidaWt thereto ai'nexed, is returned to the Court from which such commission issued, close under tlie hainl and seal of one or more of the commissioners, the same shall prima fonehv deemed to have been duly taken, executed and returned, and shall be received as evidence in the cause, unless it is maile to appear to the Court in which such examination is returned and pubhshed, or before which the same is offered in evidence, that the same was not duly taken, or that the deponent is of sound mind, memory and understanding, and living within the jurisdiction of the Court at the time such examination is oflPered in evidence to such Court. C. S. U. C. c. 32, 8. 21." lil!*:-- ss. 103, 104.] COSTS OF COMMISSION, 133 103. The costs (it) of and atteudini' the a))i)lication for C!""*^''^. the issue, execution, return and transmission of any such ooniiuission sliall be in the discretion of the Court in which the suit is pending, and shall be taxed on the County Court scale V>y the Clerk of the County Court out of which the sauie issued on notice to all parties interested, (o) and the VAvrk ahall certify the result of such taxation, accompanied l»v a copy of the bill of costs ils taxed, to the Clerk of the Division Court in which the suit is jiending ; and such costs may l»e added to any other costs to l>e paid to the party en- titled thei'eto, and may be recovered by the party entithid thereto in like manner as the ordinary costs of the suit :tre recoverable by the practice of the Division Courts. 39 V. c. 15, s. 6. Books of Account, Affidavits, (fee, as Evidence. 104. In any suit for a debt or demand, (/>) not being for J"<'ge may tort, and not exceeding twenty dollars, the Judge, on being <viiitn(e ° * . iilaintills' or .satisfied of their •jeueral correctness, may receiv e the plain- <ii f< miants' tiff's books as evidence, or in case ot a defence of set-ofl" or of aiuoout {Mymeut, so far as the same extends to twenty dollars, may ()i) Tbe costs of executing a comniission in a foreign country are costs in the oause, unless some .special ground is shewn for ordering otherwise {Prince v. .sVimy, 4 Dowl. 5), hut u(tt unless the deposition has been used at the trial : liiillnj V. Sutton, 1 H. & Vj. 741. Tjje taxing otficer exercises a discretion Jia to the iillowauce of the exjicuses of an Attorney attending the conunission : Cornet V. Dni'jmn, I Dowl. N. S. 4'22 ; Potter v. 'lio.nkln, U H. 4 C. P. % ; but see Mann V. Jlarhurd, L. R. o Ex. 17. But to entitle tiie successful party t<» the fees of counsel atteijiling, special circumstances must be shewn: Li'Con/ v. .V. /;. Railway Compain/, 14 L. T. N. S. 401 ; 2 L. .1. N. S. KW, s. c. ; I'vtter v. Jlitiik'tH, supra ; see YifkmtH et al. v. Jioi/al Exvlianije AumrnHce CorjiorKtion, L. 11. ') C. P. 141. Where the Master allowed the expenses of the conimissii.uer, a Barrister, going out to the Canaries t(» execute commission, the ailnwance was sustained: see In re Attorneys, &c., li()('. P. 411"). liy the lO.'inl section, the costs of Attorney or Counsel attending on examination would, if attendance necessary, be taxable in the same manner as in a cause in the County Court. It would only be in very exceptional cases that such fees simuld be allowed in Division Courts. Aa to commissioners' fees, see Anou ; 12 L. J. N. (S. 204. (o) " It is one of the first principles of justice that no man's rights shall Ihj acviudicated upon without giving him an opiH)rtunity of being heard in 8uppi)rt of heiu:" Iter Willee, J., in Thurhurn v. lianiex, L. 11. "2 C. P. page 401 ; All'iruey-Oen^ral y. Daohon, 1 McCUell. & Y. lUO. As to "due notice," see fh!„i.e,i V. :Sitiimons, L. R. 1 P. & D. o'i.S. (/)) This section not only exeludts the evidence of either a plaintiff's or defen- dant's books in actions of tort, but also inactions "for debt or demand " for .imouuts exceeding $20 at) well : see notes to eectiou 79. Tbe Judge must first ■vlr :"■■• •■■:. \;' . ... . • * ' .' . . ' ■ .'• /'■ r. ■ '• ' •'■■<■ :''o ■ >» • • »-,. •"••..♦...; .■'•.■V,.- .* •••' ' J' ^:^■'': V-'v>*-.^:^ ■r.T^C-iv'.'-'' /.■ . -v. ■ 1 .f r.r «' \i ■■, .'• - • I < V. ■ • '..V '.. ' ■•ij ■ '^/^-'r- '■'.•'•v':';.,iir ■. S\ * *■ ■ •■ ■•;.-• ' ■...■' ':;!■'• .'>^, ■.:•>■■ J •■4';- •■■ ■''■■ ■ •■; ' ■• 'if 4'*'" •• . '■ ■ ■.■->.•■■? »^ .'■«.';•'*'•■'.■ : '■ „• , !.•»;. ... ; •• ■ --.-:-'.'? '■'i^'y-' ■■•■ ■ • .' :.^^^■;if ';■. -. %:\t.>;'M.H-.ir;-J»..- mm 134 JUDOKS DEcrsroN. ^;. -'I A .- - AfliilaviU may In- sworn lie- lore Juil(;e, Clfik (ir Ciiiiiiiiis- sioiier. [ss. 105, Km; receive the defeiulant's books ns evidence, and siu'li Juil;,'(> may also receive us (svidenco tlie affidavit or affirmation (</) of any jmrty or witness in the suit resident witliout tin- limits of his County, but, before pronouncing judgment, tlu- .Judge may requini any such witness or any ))iirty in ,t cause to answer ujM)n oath or utHrnuition any interrogatories that may be liled in the suit. C. S. U. C. c. ll>, s. lUIV 105. All affidavits (/•) to ho used in any of the Divisic/n Courts, or before any of the Judges thereof, may besunm before any County Judge or before the Clerk or De|i(ity Clerk of any Division C'ourt, or before any Judge, or Com missioner for taking affidavits in any of tlie Superior Courts. C. S. U. C. c. 19, s. 104. Jiuigf! miiy Kivcjud-- iiipiit iii- stiinU;r, or |V)St|loll<! .ladKiiiunt, JUDOE'S DECISION. 100. The .ludge, in any case heard before Iiim, slial . openly in Court and as soon as may be after the heani:;;. pronounce his decision ; (s) but if he is not prepared to pro nounce a decision instanter, he may i>ost{)one jvulgmcnt urn I be satisfied of the "f^oneral oorreetness " of the }»ooks of the l<irty tenileri iig tht/n in evidtufe ; ami if lie is, it is tlien pennissible to receive tlieni. It is ti> \>v observed that a ilefeiulaut.'s books can only be received where the Uefeuets an- net-off or jiai/iiK nl. The experience of most Judges is that the evidence to In obtained from well kei»t liooks, in which the (vrigiual entries have been made in regular order, is of the nnjst reliable and satisfactory character. ((/) To save expense this provision has Ixjon introduced. The witiiess musl be " resident " (see notes to sections H'J, (\li and 7-) irUlioiit the County in vvhii h the suit is to l>e tried, and, recognizing the right of cross-examination {Aif'-iiny Genvrnl v. Ihtrlxoti, McClel. & Y. UiO), this jnovision as to answering inter rogatories is iutroducol. It is submitted that the alKdavit or aUiriuation ot a person resident nut of the Province could be receivoil : Maxwell on Statutt s, .W. (r) As to atfidavits generally, see Hule 1.S3, and Itob. & Jos. Dig. ^m, et ."fj., ami notes to section 7(» ; Areh. Prac. ami Lush's Prac, title, "Attidavits." As t<i affidavits made out of the Province, see Per. Stat. cap. G'2, see. 38. (s) By section 54, this is to be done "according to e(juity and good conscience." It is ditfieult to give a meaning to these W(»rds ; but it is submitted that a f;iii interpretation of them is, tliat causes in the Division Courts shall be decidtd according to the general principles of ecjiiity which obtain in the Couit ot Chancery, in so far as they can be applied to rights, remedies and proceed inps in Division C-'ourts, as well as according to the Common and .Statute Law. In tlii.s new the author is sustained by an ably written article in 5 U. C. L. J. 14'); see also 7 U- C. F>. J. '21H). In one case, a Judge thought, under these words, that he could dispense with the neces^sity of evidence of presentment antl notice ol dishonor in m action against tlie endorser of a promissory note ; but, as jwtintid out by [{obinson, C. J., the County Judge was cltarly wrong: Siddnllx. f.'»/'.-i"» et al,, 17 U. 0. K. 98. A Judge cauuot alter his decision at will (jQnea v. Jmtf, a 106.] CALCULATION OP INTEIIEST. namo a subsequont tlay iuul hour (t) for the dtjlivery tluiroof ill wiiting ut tlio CJoi'k's oHice ; and tho Clerk shall then tftiJ tlie ilocision to tli(; pjirtics or their ag«nts, if jinisoiit, and lie shall forthwith enter the judgment, and such judg- Bieut shall be as effoftual as if rendered iu Court at the trial. C. S. U. C. e. 1!), s. lOG. ISfi J 1). iS: L. 628); nor can it be changed by Superiftr Clourt, no matter liow trnjiit'ous : NliKjara FuU.s iSiiftjit'n.iii/ii Jirulijc doiiijuniii v. (iitnl/itr, 29 U. C. I!. 1!)4 ; .sue uotcs to sections M, r)4 ami 01. Whoa the Judge's (lt;ciHii»ii i.s entered in tlio procechiro b(»ok, under seotion 37, it only then becomes a juili/iitciil of die Court: Riij. v. lioalaml, 1 ¥. & F. 72; titnitloii v. Jolinmm, 7 L. C. (!. 141 ; 5 U. C. L. J. 112. (/) This shiddd be carefully olwerve^l, otherwise a Judge might frcijuently Im; aultjected to a niotion for prohiliitioa : /« re Jiurromn, 18 C. i*. 4!I,S ; see note nnder " l*rohil)ition " to sectinu r>'A. A party has fourteen days from the delivery of judgment in thiH way to move for a new trial : Kule 142 (/). Ah the allowiuice or disallowance of interest is freuuently a matter of oon- jfiileration, it may be well to observe that the proj)er moile of computing interest, iu the alienee of payments nuule specially on acc<junt <tf principal, is to compute it (IU tlie amount due up to the time of each payment, nuiking rests, deducting tiie payments and charging interest on the balance : JiefU.i v. Fnrncvll, \~>V. W AM; llosK V. PcrrauK, \',i (irawt, 2()6. The method fre<iuently adopted of charging ijilerest for the whole deht for the whole period, as if ivt payment had hieii made, then allowing iiit<;re«t upon each payment from the time it was uiade, and *■< deducting all the payments and interest from the wlnde debt and interest, is wrong. It is t>o much in favour of the debtor that where there Iuih heen a long arrear of iuterest and ]»ayinents on the debt not covering the interest .ilouc, the debtor in a few yejirs. without making iuiy payment in tlie meantime, sv'iuld make iiis cre<lit»,'r his <lebtor to a very large amount : McGirijiir I't nl. v. (latilhi it uL, 4 V. {]. \i. 378. But where the payments arc not sntficient to cover the iuterertt due at time of each payment, interest can only Ik; compute<l on the hidance of principal remaining (Uie at each payment: Jidiiiian v. Tuniltiill, \',\ v. (I. ^. '111. The foll<)wing is the c(urect metliod of calcuhiting interest vii an execution where part has been made on it : Where the liailill' receives an execution endoi-sed t<» levy a named sum, as that recovered by the judgment :nid int<,'riist frii»m the time of entering the judgment, or where the interest is iucluiled in the imlors<nnent, he must make tlie money generally on the execu- tion generally, and pay over what he uuikes ; fees and expenses to lie deducted wlitu taxed by tiie Clerk, or more prop4;rly the whole .sum, the Clerk, after taxation, paying him his proper fees. If insulhcient t<i satisfy the execution, he returns uitlbi Iiuiki as to the residue, and ti»e jilaintill' is then entitled to a new execution ; that oji the endoimementof the new execution the plaintitl' is entitled t(i considiM' the interest up to the date of the levy as paid, and f'e jirincipal a« rwlueed hy the balance, after deducting Hailitl's costs ; and the pi jicipal lu-'ing so reduced to endorse tlie subsetjuent execution for sucl: reduced ]irin(npal and nitereht from the time of tlie former levy and payment : see C'lmniiiutis v. C'.ilur Hal., 1 P. K. li). Intereet is usually allowed, though no demand made on moiuy awardwl to be paid at a particular time : Tou'slcii v. IVj/t/icM, H\ U. ( '. II. l.'{!). Where principal and interest is paitl for another, interest ie recoverable on the whole payment: Manic'ipnl Cniniril of \Vi'lliu</fon v. Miiiiici/)ii/!f!i nf the Toirii-s/iij) of Wilmiit, 17 I'. ('. K. 82. Interest is more fre<iuently allowed iu tliis Province than Knglish authority would seem to wanant : >!/)('iife v. Hector, 24 U. (!. 1{. 277. Where money was levied by a Sheritl' and improijerly with- held, interest was allowed : Midiie v. Jteijnoldi, 24 U. C. 11. 303, ' '.I . < . " ' %».»'■ '.*' -'i .V ',■•' t-. ■ ,.•■■■■ • -'v^ -.1 ■ ■I ■* ■ ■ . ^ ' • • - :• ,^;;^.^■■•^■^■■ ';■>;/-, - ■. •V■^'•■ •'■«;■ '^••"- • ■ •" «■ .'"■■■ x ■ " .'■•■vf: ''•;>/" ■■■■ ■ ', ;f IV,. ■.^^!?*;\ . .■■"■.••*>■*■ "■^•'s''; '■>■■ ■ •'i'fc.^ ,l«: 136 INTKUEST. [». I or,. Rev. St-vt. cap. r>0 '"^(UJ. Iiitorest .shall l»e payable in all c.agen in wliicii it is ncrw jwvy alilu hy Ifiw, or in which it ItaH been UHiml for a jury to allow it. ('. .S U. V. (!. 4:{, 8. 1. "-(J7. On the trial of any issue, orany n^wasnient of duuMi^^cv, u]kih any iloht or auni certain, payablu by virtue of a written instniiiu nf. at a certain time, tile jury may allow interest to the plaintill from Un- time wiu'ii s\ieli ilelit or sum bocaine payable ; "2. If payalile otherwise than t>y virtue of a written inj^trnnicnt at a certain tinu-, the jury may allow interest from tlie time when a <leiiia\i(l of paynkent is made in writing, informing the debtor that ititereKt will 1m- churned from the date of such demand, f'. S. U. C. c. i'i, s. '2. " 'J(i8. In actions of trover or txesjuvsH dr Innan n»iM>rfafin, the jury may give interest in tlie nature of damages over and above the value of tlu; goods at the time of the conversion or seizure, and in actions oh p*>l>ti<'s of insurance may give interest over and above the uiouey recoveralili- thereon. C. S. U. C. c. W, s. H. "L'dlL In any suit or action in which auy venlict is rendereil for any «lebt or sum certain, on any account, debt, or promises, such verdict shall War interest from the time of the rendering of sncli verdict, if jnd;^miit is afterwards entered in favcHir iti the pivrty or pci'Sitn who obtaineil su'h vcidick, notwithstanding the entry of jutlgnuait upon 8U'.ih verdiet has been suspended by the o|K;rati»)n of any rule or order of Court made it; such suit or acticm, anil in all cases diUiuiges shall l>e asstissed only up tc the «lay of the verdict. '2!> lH) \. c. 4'J, s. '2." In Sinurt v. Nhujurtt mid Oct mil Ifiirrx I{ij. Co. , 1 2 C. P. jiage 400, I ^rajier, V. J. . says: "It hiis become so settled a prfictice to allow interest oil all accounts after the jirois-T time f>f payment h;is goi\e by, ami particularly on the Ixdaiici- of iui account, which imjiorts that the accounts on each side <ire nvi<le up, am?. only the difl'erenire claimed, that I do uot think we should treat the claim fi>i interest as vitiating the .-(peciivl endorsement." Interest is recoverable (ni a hil! of exchange or juomissory note without any sjtecial claim for it (lilnki v. Lnwniice, 4 Ksp. 147l, but it must hi' jirfKluced : Ifitttui) v. Wani, ];'> if. 1>. .»'» In an vction for not accepting goods, where the payment was to Ix; by hill, tln' plaintitl may recover the amount which wonhl have accrued on it f^>r interest li(ii/rp V. iViirltiirioii, 2 Camp. 4S0. So in the sauK! case f()r gooils sohl and delivered {Fiirr v. Ward, 'A M. k W. 2.")) ; anil may be lecovered aa part of tin; price : l>(irii v. Sii^i/t/i, 8 M. & W. '.i'.i'.K Interest should be claimed, if not recKverable under the statute, in which latter case it need not be : AWi/v/n/i v iinat IVtslirti /'ni/inii) C'lmixin;/, II C. H. .'WH ; H'o/kcr v. Cmtxtuhft-, 1 H. & I*. 3<M>. It is now established iis a general principle that interest isidlowed by law only on mercantile securities, or in those eases where there has beeu an express promise to pay interest, or where such jtroniise is to l)e implied frtHu the us.igi- of tnule or other circumstances : jxr Abbott, C. .(.. in fliij'jiii.i v. Sarijiut, '1 IV & (\ 349. There may be a usage to i»ay a certain interest on the .settled balain c of a merchant's acccmnt : see Onm' v. (rd/lau-nif, [) Ex. ;}44, Where secnritits have been deposited to secure a loan, the latter carries interest : lit re Kvrr.< Pollcji, L. R. 8 K<|. .S.Sl. Where the contract is ty pay a sum of money with interest at a given rate on a certaiji day, if the sum be not psvid at the stipulateil time, there is no contract t<i pay the .saiiie jyjfi; rtftcr tfic ilate of paiftntmf ; but tlamages may he awanle<l for the non-jwyment, and the former rate may he taken as a guide in estimating damages {Cook v. Fowler, L. li. 7 H. K 27) ; but neither Court nor a jury is fx)i(tHl to do so : Ih. ; Ktijnc v. Keene, '\ O. B. N . S. 144. Lord (!airns, L. C, says, at r»age 3.S of 7 L. 11. H. L., "No douht. })riina facie, the rate of interest stipulated for u]) to the time certain might he t' :' en, and generally would be taken, as the measure of interest, but that wouM not bti coucluaive. It would be fur the tribunal to look at all the circumstaucci • • ;• » » ' ; ■. 'A'H lOG.] INTERKST. 137 of the case, ami to detidt! wliiit was the itriH)or sum U* Ik- nwiinkMl liy way of iliiinant'H." In that o.iHt! the cdiitrat^t wa« sixti/ ])cr t'cnt. |>fr aiiiiiiin iiitcri'st to iiiiktiiiity, ami thi; IIoumo of l-urils HUMtaiiiod a liinliii)i{ i>i j'lnir jilt ci'iit. iiitt'ri'Kt im ilainiLji's <(/V(i' maturity. Siiitii' tliis ilt'ciMidii, /linrliiinl v. Jriiiiiiii/.'<, II (". 1'. '27'-'; MniifijoiiKTii v. /iiiiirhi'i- 1'/ III., I4('. I*. 45; Yoniiij ft (it. v. Fhiki , I") ('. V. ;{(i(> ; ami O'L'uiiiinr v. Clufhc, l.S(ir'aiit, 4'_''i, can only In: coiisiilcreil iw. authority, .sui)jii:t ti> the rule of law laiil down in ('o'*^ v. Fmi'lvr, xuitni; hi'o alsn Ihilli/i V. j/inii/ilinii, ,S7 I', i'. K. •')I4. Bills of oxchanj^u and proiiiisHory notes always iiarrieil interest, whether mentioned or not ; if payahlo with interest, it ruiiH fniiu tile date (Hnfijl v. <!r>i iiirill, 10 A. it K. 'J'Jl') ; if silent jus to interest, it runs friini maturity. On a not payalile on demand, interest runs from the time iif depiand {/iliiiii'i/ V. Iliiiilr'irl:, '1 \V. lUaek. 7(11), or disiuiiised with, as liy the hank which gave tht." note closing its duors (/// re h'lint nf' Kiiiilninl ItinikUnj Cmit- Itiiini, li. U. 4 I'll. 14), and when no demand proved from the issue of the .oum- iiKins : Pii'tri' v. Fi>H>trijill, 2 Ming. N. ('. 1(17. Interest is only recoverable fmni the drawer of a hill not nu'ntiiuiing interest from the reeeijit of notice of ilisiiDMor : W'ltlh r V. /iiinii'.s, ."> Taunt. 'J4((. The rate of intei'est to he allowe<l III) a Miite or hill not hearing interest uii !(.■< fun- is for the ('o)irt to decide : llilihx V. Fri'imnit, \) Kx, '2'). The endorsei^ of a hill may sue the aeceiitor for interest, although he has taken another hill from tin; defendant for the lir.st, wliicli has lieen |iaid : Linii/ii/ v. Mnxiinii')', 4 l>ing. N. ('. !). A promise to jiay intenst may he implied from the acts of the parties : Colton v. lifd'i;/. lo Kast. •J'J.'t. ('(imiiound interest is not, unless there is an express <ir implied jiromist; to ]i.iy it, or there he a custom to that ellect : Ffn/iis-imi v. Fiijti'. H ( '1. it l'\ I'il ; Attirntiil V. Tinihir, 1 M. & (!. 'J7!>. A party, liy n<it ohjeeting to aeonunts reuilered, chaiging compound interest, may hy lajise of time he taken to havo assented to the charge (/iniri- v. Hunter, 3 Camjt. 4()7) ; hut the party slmuhl know that such was the jiractiee ; Mmtri' v. Vinnjhlini, I Stark. 487- \\ hen the Imsiuess relation ct^ases from which hy practice compound interest would hi? i:liargeahle, the right to such interest also eeiises : Wilthiiiisdii v. \yitliinii.-i(»i, li. It. 7 K<1. .'i4"J. The following ea.ses <leeided under the Knglish statute l\ & 4 Will. l\'. cap. 42, from which the foregoing sections were originally taken, will have direct application. A deposit paid on a consideration that has faileil may he recovered liack with interest on a previous demand of interest made : Mmnitf V. Li)iiiti:Hl><ir()iii//i, 4 Iv it M. 1 (see section '2()7, suh-aeetion '2 of our statute). Interest may he recovered on an over-payment made by a person to obtain his gcdcl.s from a carrier on which an illegal charge had been made, if demand hail lieen m.ule under tlie statute: FilmiriU v. Urmt Wcntirti lioltwuii ('unipdiiji, lie. M. oSS. A letter of application for a loan till a certain day, not shewing any oldigation to rejiay, is not an instrument by virtue fif which the debt is payable at a certain time : Taiilor v. llutt, H H. it C. 452 ; ///// v. (S'. Sf(ijf'i>ril.iliin' Unilmvi ('in)i]Kiini, L. 11. 18 Kq. 154. A Inni]) sum for freight, under a charter- jiaity on the delivery of the cargo, is not within the section: Mi rr/iimf S/ii/i/ihi;f ('•iiiqinvji V. Armitiiiji', L. U. \) if. H. 114. A notice of a call made on a eon - triliutary of a company being wound >ip, stating that interest would be ehargeil if iiavmeut not made by a day certain, was liiti/ to be within the statute : Kr fiiirte Lintof, \j. H."4 Kq. 184; Jiarr(>ir\'< Ct.sr, L. R. li Vh. 784. As to interest on calls on forfeited shares, see ^forkfii's Cn-tc, L. K. 5 Eq. <>. Qunrt': iw to the right to collect interest on assessments made on premium notes or undertakings by Mutual insurance conii>anies. It is submitted that they have tlie right: L. H. .S < 'han. at ji.age 78(5. Where a party revives a debt barred liy the Statute of Limitations, by paying into Court, but refuses to pay interest, such payment of the principal does not revive the claim for interest {('vtli/iT v. Willor/,; 4 Hing. 313) ; anil it is submitted that part payment of principal money i>a a (li'lit barred by the statute does not revive the claim for interest ; and, if liriueipal barred, so is interest : Parkea v. Sinifli, 15Q. B. 2!>7. Where a surety liiw had to pay money for his principal, he is entitled to interest ; i'etrc v. Dun- [■i'-C.'-'-*''. ■ vf>. . ■ • • • 1 ,'i^t"' •• :.■:■>•■ V ' r ■'■■ V •\-''V/''./l*'U; .• ■• „■'.■■(-"„ .;'••■ ';>— . ■'•>St*V' ■ :•.♦■•. • .*■- ': t 138 NEW TRIAL. [s. lo; Ju.lKM may j^^^ T!w Ju,li'(! luiiy t)nl«'r tho tinio or tiiiios (n) an. I ttiui iii.p|.,,r- l\^^, pi(,{,c)iti()ns in which iiiiv sum ami costs recoviu-cil li\ lions 111 • ' whi.ii judj:- iii(|c'i!ic!it of th(5 ('ourt slijill lie paid, nifcnsnco bciii'' had t.i b« jiaiii, 1,1, r; day oil whjch tho sutimioiis was served, and i.L the n (|m'st of the j)ai'ty I'litith'd thereto, lie may order th(r .saiin' to lie paid into ('ourt, and thi; <)ud|L,r(^ upon tlie applicatiiin (/) of eitliiir jnirty, witljiu fourteen (hiys after the trial (w) aii<l rtnnhi', 'J I,. M, & I'. 1(17. Intcri'st cia.scs mi tin; il.iiiM at jmlj^miiit (Flui-i I) riii/siiii, I iiieii t 1 ll^iU'H 111 writtLii toriiia, \. S, ."iht; MiKmi v. /-',<•, •_'{! V . ( '. It. -JlW) ; l)iit tlio jiid^- tenst, 4 ( 'li. D. \V,\. W'lirif t'uriiitiiri; w;i.s (Ulivurt'il on tlic dill' tliini ii. ciisli, iiiiil liiiis iit six anil twelve iiiuiitlis t'i,|- the Imliiucc," it WJI.S //'/(/ f!iU pl;iiii(iir was ciititlfil to iiitcru.st on oiu: tliinl fii'iii •hitu of (kiisciy : Diincinilic v. Itr'nililuii ('liil>, \.. |{. 10(,>. M. .'{71. \ 'ili :>i;iiiil " for iiitiTt'st Mill 1)1! .suliioii'M, altlioiigli it iIikh not follow the vt-rv wonls ol the '.?(57tli stition, if itj^ivcs i\w (K'fi'iKlaiit .siili.si.intial notice tiiat if lie keeps tin- plaintill '.s iiioiiey longer in liis hands, lie ',\ill In: held lialiU: for interest upon it fnini tile time of tlie ileiiiaiid till the tiiiit! of piiyiiteiit of the )iriii('ip:il : .Miiyiie on l)aiiia;;is, ,'{ni Ivl. 141. In Imjl'i.^ \. \\'il/iii>iti)n I hilil Cum juniii. !»('. I'. .-(ST it was //./(/, iimler sei'tioii '_'(')7, ahovi; ipioteil, that ulnii a el.iiii! is payahle otherwise than liy " ritti n eoiitrai't, inti^rest may he allowed from the dat': of a donr.iid /'// irn/iiiij therefor, otherwise not. In that I'ase, no siii'h demand was iiin.le, an' the claim for interest was refused. If a note not heariiij^ interest is diHC(ainted at a ^^reate: rate than six per et'iit. , yet after maturity it only hears thai rati': Umitil (''•.iiinliini lldiik v. Sinn II ('. I'. 4.-..-). .\ii I wan I IS no t had if mi.'"e tiian si\ per cent, interest allowi d, provided evidence warrants it : S/rii'iir, V. Wih.-^/ir, "JO r. ( '. \{. !(>!(. Where p.'vnients are made jieiieraiis, without ,:i:y speeilie appro|irialion \>y the debtor, the ('I'editor m.ay apjily tiieiii lirst in keepiiii,' ih.wn tiie interest: .)fc(ir< i/ar v. (imiliii, 4 I'. ( '. II. 'MS ; m c lloh. iV .Ios.|)i;,'est, I.S.S4; Fisher's Digest. 41 !.")(» ; I.. K. jligest, U'.t.'i; Hyles on liills aiKi .\dd. on I on. tith lnt> rest; N. P. " Interi'st on nioiu'V. (ii) If ni.ide ;it the time of the iiidnment, this onler forms part of it: /I'nliiii mm v. o'.//, PJC. i;. I'll ; /•;/-/ V. Moiil,, .-» K\. ids. (i) .'\|>plieation must he made .aecordiim to Itiile I4'_* (see a'.-io Uiile 144); aini ••are shoiihl !)■ taUi n in ohscrving "// the i> i|uirenieiits of tliat rule: sec als MrK, r ('. I...I. .">. .\t one till iillld not he llLade in intel'pl eader eases (/.'.;/. le .III :ippllcatl:in for trial />../</, i:n'. C. I!. ;«KS ; A. V. Slfiliii'iii, 1(»('. I'. V.\7\) \ 1ml uinlii Hcctioii -10, either party can now ilo (('•) The ilay of the tri.il is not eoimteil as one of the fourteen ilays : .!/<•' Vmi V. Willi iliiD Miitiiiil yiri Jii.^iiniiK '-'()(' I'. 4:{7. and eases cited. .Should judgment for instaii.:e lie given on thi 1st of the month, the a|iplic;itioii for new tviiil should he complete not later than the l.'ttli of the same month. \N'li;itevi'r previoii.s decisions have hei'ii {('nrttry. Smit/i, 4 Iv it U. •>!>(>), it is now settled law that a new trial cannot !"• graiitecl after the ex|)iration nl fourteen (lays from the day of trial {Mtlilull v. MiiHinllmii/, 14 L. .). N. S .').') ; see also /)'(■// v. Liinmul, 7 1*. it. .'{••7), except in garnishee ni,ittci>. {Ml /.tun V. MrLiinl, T) I'. !!. 4(>7), or when tin; .Imlge postpones juilgmciit under scctinii |(),;, then within I'oiirtcen d.iys of it:, delivery : Itiilc 14'.' [f). 'i"hc Hame pmnt was decided hy lliiglies, < 'oiinty .In 'gi', in Stciniril \. Mmirt ft III., II I'. ('. !,..!. S-J (lSI»:i); iiiid tho .laau! ease deei.les ' l.at for iiiatteiM of irreguhirily, where the proceedings were contrary to the practice j.nd ruleit tjf the Court, the Judge ini','lit sid, ah'hU- n juilgmeiit. The authiuity of this i-as • ia amply suataiucd hy LSuyfi/ v. iloitnu , 1 .*Strauge, .'Jill.', whcro the (.'ourt • - >■ )1\' lllclll ;rN ; >. .• Hyk's im liliiIU'V.' t : III I'll II 108.] KXKCUTION NOT TO BE POSTPONED. 139 upon good groutids boiiig sliown, niiiy grant a now trial ii|i()ii .siu'li ttu'iiis (x) a.s ho thinks nMiKonahlo, and in th(! iiiciintinio may stay procoeding.s. C. S. U. V. c. ID, s. 107. lOH. Kx(!<M»t in oasos wliero a now trial is grantod, tho Kx.cutKin ... ""' '" '" issno of oxtH'ution shall not ho postitonod foi' more tiian fifty i"i.sti,<,ii,.i (lays from sorvico {y) of tho summons, witiiout tiio con- thaniuaayn. xoiit (z) of thti parly entitled to tiio samo, hut in ctwo it at III hi tli.it, though -•. Inforior (Vdirt had no power (without st.atutorv au- tliiirity) to ^rant a lusw triiil {/inmb' v. h'lnrs, if ii.r. 1 Straiijic, ll."{ ; t<io jiIh') (l. A', /t'liiliriii/ Co., V. MiifMii/t, 17 < '. H. at page l.'vS), yit, to pit vi nt injusticf, it wiiulii sot ;isi(lii ;v juilgiiu'tt wlicrt! tlit; lulcs ami practiof of the ('mirt li;i«l ln'i'ii vinliitcil. S<i alHit in Ji ml/ v. ///'//, 1 .stiango, 4!l!(, in a lausc in tin- Hormigli ( 'oui't, atti"' notion of trial tlio parties aj^rood to ivt'cr tho cause, and iluriii,!,' till! reforouco, the |)laiiitiir, without now iiotioe, wont on to trial, an<l h;iil a voniiot, which tho .liidf^c at'torwards sot a.sido ; and \ipon motion aj^aiii.'it liiiii, tho ( 'ourt (loolaiod tli.at tho .liidgo of an liiforiorC 'omt iiiiylit sit a.sido.suoli vfiiliot "upon tho foot of irroj^ularity." l>ut a straiiuor oaiiiiot apply, t.voii tliiHit.'li ail o.Xi'o'Utioii oroditoi {yir/inlU v. Airlml/.s, in r. ('. I,., I. (ifSi, unless -/.//.,.S I'. V. I... I. 7 r. C. L. .). (Ill tlio L!rotiud of fraud and ooi.uHion : see lidlfinir v. A'///. .Til): Mrfln-x. lialnl it ill., S V.V. h. .). '2.\\\\ ; Khiiix. Kl< '.".tC) ; (iiri/lr.ifitiir v. /iriii/itiiu Ai/iiiviiiin Co., 'A \']s. D. l.'<7. Where a Jud^e has (locidod an a;-Mlioatiou for now trial and rofiisod to iiiaiit it, his authority in at olid, llo oamiot aji'iiii ontirtaiu it. To iiso tho wonls of .lorvis, ( '. .1., in C. .V. t'dilirni/ I'd. v. .\tiissi)/>, 17 (". 15. pago l.'<i(, •w t:ial h i« 1»' iinivod for Jiud rofusod, tlio play oii),'lit to Ix; oonsidorod as h.tsing liooii playod nut." Soo ji reiKU't of the saiiio oaso ;it a pri'vioiiH stap', at pa;,'o "iNO of \^\^'. K A n por t of tl le c.i.so wlion last Uofort- the Court will also lio found at page P.hif '* U. ('. \j. .1. At pai;o '_'(), Willo.s, .!., is roportod assayin;,', " 'I'lio ohjoet of liaviujj; a court of jiistici, is, tli.it all nti;.,'ation should l>o dotoiininod. and that tiiiidly. it is a loiij,' tiino since a reason was given why jii(lj.'iiiciits shoiihl he I'liiisido'vd linal, and not opened up again, nr lili.i siiit iiiniiurtr/' -s iliim I'llnutt.i iii'ir/iil'.i. A oiMirt of jii.stice must hi: suited to tho lives of the porsiuis con- i-uniod. I^ife is not long luoiigh for o|u'iiiiig u|i ag.iiii matters that are already rfii .jirlirii/iii\ 'I'lioii, when the i<ogislaturo gave this power to the .liidgosof Coiiiity Courts, it niiist he taken to havo- iiitonde<l tli.it those ( 'oiirts should li.iv. tiiost! inci loiit.s which I.eloiig to other Courts, 'i'lio jndgir.i'iit. tlnreforo, -; tlin.se Courts is to he lin;d. e.\(;o|it wiiore the power of granting a luw tria'. «<< givcii. That jiowor is to lie o.xoroisod with I'oforoiii'o to rocogni/od principles. The juilgmeiit, therotore, is to he linal. unless it coiiit.'s within the power given, and tlKieforo, when the .Indgt! has deteriuiuoil that there shall not lie a iii:w tri'.l, tlh'ii the jiidgiueut must stand linal :" see also Ci>/:i v ./ii)i< ■<. 4 L. T. N. S. .'{(Mi. If applic;ition for now trial he inaile within tho foiirtoeii days, the ileath if the .Iiidgo afterwards doe.s not .iliect it : A/i/xdn' v. Ilidii\ '27 U. C. It. 4S*( ; •J I, ,1. N. S. '24.S. s o. As Lush's I'rac. :{id K.I. (i'JS ; "<ot' al.so /,(.<//'(■ V. /•.' i-sit 1,1 . •_'.-) II. C. It. \>4H to now trial giuierally, see .\roli. I'r; aj.. '-'7 I'lshor's Digest, (lOlHi ; It. it J. '8 Dig. 'J.VJ!*, and Uulo 14'J. (j) See uotoH to seotioa 80. Ah to the form of order, see No. 7t>. (,Vl This exeluih^M the <l;iv of servieo : Yonmi v. //iiii/iiti, IJ M. k W. 4!( ; McCmi V. Wiitir/iio ,)/. F.' In.iunini-v Co., 1><) C. 1'. 4.'i7 "; a. c. I. App. H. '1\H. (?) UiilcsH consvnlcd to, e.xeoutiou cannot l>e stayed for more than fifty davH friiii the day of service, lii li.\iug tho time of payment, thu date uf servitt Hhuiild alw.vya h« ohacrvcU. ".■••■■■•■'■.■■'i> '■•;• :• >'.•;>;:.•■■■■ ■• •.' '/ . ■V' . ,; ;■ PiMP to JUDGE MAY SUSPEND EXECUTION'. [s. lOS. any time appo.irs to tho siitisfaction of the Judj^o, l)y atli davit, atKriiiiitioii or otliorvvisc, that any dofciidant is unable, from sickness or otlier sutficicnt cause, to pay and discliai^f the tlebt or dania<res i-ecovered against him, or any instal- ment thereof, onh^red to be paid as aforesaid, the Judge may suspend oi- stay (n) any judgment, order or execution given, made or issued in sucli action, for such time and ou such terms as he thinks fit. an<l so from time to time until it apjx'ars by th<^ like nroof that such temporary cause of dis- al)ility has ceaseci. C. 8. U. (J. c. I'J, s. 108. (d) Tills jjroviHion is contrary to the pohcy of the law as a<lnuiijatere<l in tlit- higher < 'iMirts. Kxix'iition oiiii only he MUfspendcd or staycil for one or more of th oiiiisos nicntionec lintl ic sec tioii. in Ziiril; v. Jlixinr >■( n/., M. T. 'J \'ic., In/il that the Court ihoiild not restrain a [ilaintitt from levying his deht ont of any one of several tlefeniiants lu; iileased, nor will the plaintil) l)e ooni|ielled to pi'oeeed against the gooils of several defendants in .inrri'.sMiiin, lirst exhiuistuig one, and then levy ing upon tiie goods of another : (.'iiiiiiiicrriAil liiiuk v. Vmikiinijlinil «-/ al. , I (J. L. ('ham. ■.*'■•>. The ( 'oiwt or .Indge has not //n /imrcr to delay a plaintiff's proceedings on \i; i veeution to I'nahle tlefeiidants to institute an action, and to auijuire a position in uhieh they may apply to set-otl' the judgment to be re covered liy them against plaintiU's judgment : Lijiich v. Wil.^'iin, \) V. (I. I , J. •Jf. 1)1 raner C. J. I'c also Friiliiiiii v. /innr,i, !> V. ('. b. .). '_»:»!> ; .l/-(ir v. l/li/<i/t, 7 .lur. N. S. \'M) ; .') b. T. N. S. L>.")1, s. c. ; Joliii> La/. II II It II, _' Dowl. ti4(> ; TliiiHi/ioiii V. Purixli, ") t'. V>. N. S. tW."). It is difficult to give a meaning to the wiM'.ls " oi- other sutlicient cause" It is sulnnitted that thes.e words are ijiisihni iiim rln with the word "sickness" i>rfcedipg it: Maxwt 11 on Statutes, 'Jit? ; F>iiinrk v. Srlimnl:, b. It. W ('. I'. .SI."), i» \\'illes, .1. A mere inability to pay could not have lieen intended as a ground of stay of procei'd- lags ; but if an iminediati- issue of execution would ln' very prej'.idieial to a defendant, and a plaintill would jirobably realize his debt as soon otherwise, it might be considered, it is suluiiitted, within the section. .See a somewhat an- alogous ju'iivisioii iij section .")".( of \V1 it ;{.'{ \'ic. cap. 31 (<'an,). In speaking of the section in cpiesiiun, the bditors of the I'. ( '. b. .1. in volume S, at page "JtU, say : " In acting under tiiis sectinii, it seems to us tlu' |ilaintitV should have notice of the application tothe.ludge. and a copy of the atlidavt (Ui which it is grounded si-rved upon him ; or that he should have been called on by the .liidge tn shew cause, if he had any, against granting a stay on the execution. The power is extensive and unusual, and slmuld be sparingly and caiitmu-ly used. * ' The latter part c>f the rlaiise slu-ws that the plaintill shouhl liavi' notice of the application, for how otherwise can lie in in a position to sin w tliat the t>ni]iorary cause of (Usability has ceased. \gain, at page 177 o t C, ('. b. .1. It IS tl lus laid down : "The .ludgt! /;/(/// suspend or stay execution, implying the exi'rcise of judgment, not arbitrary discretion, but judicial discretion, in view of all the facts. We have no hesitation in s.aying that the practice of granting u- pmte suspensions is a moiistidus perversion of the tine meaning of the clause, and .*» gros.s violation of the vital |)i'inciplc of justice." Again, tin; learned bditors say at the same page, "The pio|)cr practice wt; take to be this : the clefeinlaiit applivjs (in atlidavit to the .Indge, m ho grants a suinmons to hear the inatter, with or without a stay of proceedings in the incantiine, as may appear luoper, or directing that the plaintill shall be furnished with copies of the allidavits upon which the ai)plii atioii is foundetl. On the return of tin summons tin pai'titti <u'c hcaril, wiieu tiic order i» made upon tmcli tcruiu m inuy accm just, ..f tin- iilMirary i.s 111 lis 'XtTClSC ;ill tiu' •J' /Id I if aii({ rt ilit(»l :. ii iiilaiit iiiatU'i", |)io|i.'r. li'lavitrt m-i tilt III jUHt, ss. 109, 110.] WHEN' JURY MAY BE HAD. 141 JURY CASES. ^ hf\Ui 101). Either party iiuiy retnim! ii nii'v. in acti iis of tort^wiim a wlicro tin; t^inuiint sought to no recovtnvd cxccods ten (iifllars, i,c im.i. Mini 111 all otIitM- aotlouH where tHteb aiiKniiu c.xeeoils t <P <'-i i ty /A,, t'y .iollars, {h). C. S. IT. 0. c. lU, s. til). 110. In cas(? tlie nliiintifrreciuires a iury to be summoneil Pitti<^s t<. ... ^ivi- lii'ticf to try the action he sliall j^'ive notiec; thereof in writliiju: {<•) '''<'i'ii< if 1 /il 1 1 • L' • 1 • 1 ""'^ lliiuill' to tlie Llerk at the time ot entering his acc( nnt, th-niiind or aj'uy. cl.iiin, and shall at tlie siuiie time pay to the Clerk tho pro- per fe(!s for the evpeii.ses of such jury ; and in case the de- fendant reiriiir< it jury, he shall within five days after ((/) or thu summons ia diiclmii^ed :" see also GU. f'. L.J. SOo of tlif <'iiiniims ln-re fXpri'SRt'd tlu're ojin l»u no (lucstinn. Of the eorroetneas Ah rcnuirkt.'d liy Willfs, .!., in Tliurhnni \ H'lnifs, L. H. 'JC, I*, p.m'e 401, "It i.s (moot the first principle.s of justict thiu no man'.s rij^hts sliall he adjudicattd upim without fjiving liini an opportunity of ln'ing lu^arii in HUpiiort of tliciii :" mo al.su A'k/ V. (ins/iin- Liii>\i ('iiiiniiiifrf, L. K. H (,». Ii. :U4 : Maxwell >>t\ Statiitt s, 'A'2^ ; \V,,,.ly. W'lf,,,/, L, |{. !( Kx. I'.tO, lint if tlir pl.niititl slimild l.f pnNtut, n<« wir.iiiimn.s to alu'W ofns"- would In; ufccsHary : Jininl v. Sturi) ft <(/. , '2',i V . L'. l\. (W4 ; U'lilt V. Liijc i'-"'<: . L. R. 2 Scotcii Ajiji. jtagc ;i()7, n. (/») 'i'liu rij^ht to ii, '. . jury sumnieiu'd ilcpfiidH vipou whither the suit is one fur l;nna;,'eM uxci'fding ten >lollai.s in tort, and iipwanls of twi nhi doll.ir.s in all other ai'tii;".i.-i. No right to a jury existH in an interjiloader issue ; Mimiic v Mi-K'nilfji I't ii!., loC'. !', r>(). .Anil it is sulnnitted the law is so as to rejileviu, fxcejtt perhaps wher(^ the i/iuinii/tH elainied amount to upw.ards of ten ilollars, A party has a r'njlif to have his chm\ tried hy a jury, aiul the .Judge eunnot de- jirive him .if it ('S'";/'/ v. .b't/'"*/', I i). H., IX 'M>'2 ; Chirkf v. Coitlcxou, '2('h. I). 74f») ; nor should that lie done, evi-n if tlu' jiowcr exinted, ludess foi- strong r«-a- sdus ( 11' i' V. ir/z/'o, 4 ( 'h. 1». (i.'il) ; and the .luilge should receive the verdi(!t of the jury, even though he ditlers with them : JtinliiK v. Sn it/i, H \V. II. 4(54. If a jury is irregularly summoned, :ind both parties ajijiear at tin- trial without ohjei'ti(Ui, the irregularity is M'aived ; Ex futrtr MtinjiiH, Iti n- Siiii/ixmi, 'J ( 'h. 1), 7'J. If either party eaused a jury to In; siunnioned in the first instane' . he is entitletl to a jury at the Meeoud trial. He must pay the necessary fe s again, and have a fresh jury summoned : Ilule 14'J »< ) ; see Sparrow v. /iVx/, T) i», & L. fi:w. ((■) The giving of tlie notice to tin ( 'lerk hi writintj 1)y either party is a con- dition precedent to the right to h.ive the eauBc tried liy a jury : Fhlrlur v llihr, L. ]{. *•• Q. W. 'XI ~. Ihit that an he waived li\ ai.|iear.inee nt the trial witiiout ohji'ction : h'.i /iiirtr .Mur'inn. In r< Sliiii>.-<iiii, "J ( 'h. j). 7-. I niess the jury if ih'm.iniled in writing "at the time of entering" the suit (section (IH), it eaunot he ohtaiued, and the Clerk w«adil act improperly if he received it after- wards. ((/) This is exrhinrr of the day of sorvice of the imnimons : Maxwell on .Sta- tutes, :U0. If not riM|uired within that time, the ( 'lerk <;aunot reeii\e notice fiiiui the defendant afterwards ; and shoeM lie improperly do so and summon ,i jury, the opposite party could not he chargeil «ith the costs of the jury, uideHs he, without ohjei'tion, agreed to try the case with the jury Ho summoned. If a jury were improperly sumiuouod at the jiwtauoe of uuu party, the opposite party / X 'H K f r< / Ji''*^ f^v^(- 4j '.';'•,>■' ...-.■■ ' ■* . •»■ ■• . .- ■• • : * . . • ■ . -w . l*'\ ' ' ' ' ■ . ■ , . 't •• • >. iMyy'H.:^i .. » . j: 112 WHO MAY BE JUROIIS. [SS. Ill, 112. Who may Im! jurors. tlio (lay of soi'vice of the summons on him, give to t!i<' Clerk or leave at his office tlie like notice m writin;,', and shall ;it the same time pay tlie proper fees as afonwaid ; and then!Ui)on, in either of such cases, a jui'y shall be summoned acfordiiig to the provisions hereinafter contained. C S. U. C. c. ID, s. 120. 111. All male persons being subjects of Her Majesty by birth or naturalization, between the ages of twenty one and sixty years, (e) iussessed (/) uj)on the ColleiHor's roll, and resilient (g) in the several Divisions respiictividy, siiall be jurors for tlu; Division Courts in such Divisions. C. S. U. C. c. I'J, s. 121. .iiirorB. how 1 12, The jtiroi'S to be summoned to serve at any Divisiot: Hi'li'ctril ami ' i i i i ■ ' )*uiumim(a. C'Ourt shall be takenfrom the Collector s rollsof the preceding year, (h) for the Townshi|)S and places wlioUy or partly could refuse to try the case with a jury ; and if the .hidf^c tried it with a jury from those so .suniiuoiied, and no appeal ,nco made by ol)jecting i)arty, it is sub- mitted that I'rohihitiou wouhl lie. 'I'lie law gave liim oi> trihunal under seetion .">4, aul>-seetiou '2, and lie eould not he eoniiu'lled to aceupt another agai.ist his will: Uiu/sonv. Toot/i, 'A Q. H. J). 4(> ; Midiu'd-v Mrh'hi/ii/ ,1 <i/., ir>('. I'., at |»age .'>4. rii<! .ludge has power to nonsuit in jur' eases (Rule \'2'2 ; !!i)lihi,-<i>ii v. /yiiwrciirc, 7 Kx. l-.'i) ; and a plaintill' has a right to lie nonsuited at any time l)ofore the jury have th'livered their verdict ; or, if the cause is tried l)y the .ludge ahtne, at any time hefore the .ludge has " ])ronouneed liis dt^eision :" sec- tion 1(M> ; O'llfiiniil'' V. JfiK/xon, 7 J'lx. 'Mi) ; see notes to section 81. («) 'I'his, it is sid)mitted, means unr the age of twenty-one years, and umli r >''\(,y years. I^videnei^ of re[iutation is inailmissible to prove a person's age t('ti!r'oii<f/i V. Smi/f/i, 10 Ij. 'I'. N. S. !I18) ; Itut the statement of age <ui the eol- lecti't's roll, made uj) from information presumably received from the party, W,'\jl(i ">e jtriiiKi I'ar'ii fvidenee : Willhtuix v. //uskin.iou, .'{ Y. & (J. 80. ( /■) is sidimitted tiiat one assessed for income or as a farmer's son would he <(tinlili« i. It is not necessary tiiat a person to be ((ualiliud should be assessed to any vuLicular amount for real estate. ((?i See notes to sections (i'i and 7'2. yfi) A litci'al reading of this section would lead to tho o|iinion that in divisions where there are fi'W jury cases, by taking the roll of tlie " p";eceding year" of the nnnueipality witldn winch tlu; ('(Uirt is held, and beginning with the lirst I)er8on on si /<i roll, the s;une jiersons whose names were high on the roll would »e summoned <it l<'iist ttncf ii i/mr, if there should I e a jury case so often. It is submitted that it would lie more consistent with the spirit of the law that the Clerk shoulil go through all the names inalpiiabctieal onb-r, commencing where ho left otl" the previ(Uis year ; but (m the plain words of the statute as to the ))iirtiriiiiir roll from wliich the names are to be taken, it is ditlicult to come to this construction of the statute. I\rha])s the literal construction, though lead- ing to eoiise(piences not fair to all, is the safest to observe : I'ollock, ('. H., in lluxhaiu V. Whrehr, ,'{ H. &<■. jiage 80, makes use of these words : "Ineon- atruing an Act of Parliament, when tiie inteiitioii of the liCgislaturc is not clear, we must adhere to the uatural iiui>urt of the words." ■ .» < ■?.■.. ■» i, ■ as. n;>, 114.] now JURORS SUMMONED. 143 witliiti tlio Division, and shall Ifo.sumnionod in rotatinn, li;'i.'iiiiiiMg,\vith tlin first of sucli porsoii.s on hucIi roll ; and if tlioro I)C niovti than oiw such Townsliip or place within the Division, bogiiuiing with the roll for that within which the Court is lield, and then proceeding to tl ,at one of the other rolls which contains the greatest number of such per- sons' names, and so on until all the rolls have been gone tinoiigh ; after which, if nccossary, they may be again gone tliidugh wholly or partly in the same order, and .so on toties ,,>wtl<;s. C. S. U. C. c. ll», K. 122. Il!(. For the purpose of the last preceding section, the rniicrti.r , , M , c II I II , ■ , . i^. . to nnnisli ( ullcctor tor each place wliolly or partly within any Divi- (Jicrk with sioii, .shall furnish (/) the Clerk of the Division Court thereof "* " ^'"^' " with correct lists of the names of all persons liable to serve as jurora at such Court in the order in which they stand upon the rolls. C. S. U C. c. VJ, s. 123. 114. The, Clerk of each Division ('ourt sliall cause not .rumrs to lie 1 ill' '' ^ '' ■ }• I I'll • siiiiiinont'J loss tiian titteeii^oi the persons liable to .serve as junirs to be tor .acii siiimaoued (k) to attend ni each session of the Court (/) at the tiuK! and place to bo mentioned in the summons, and ' /< ( (u<<\^i j - .such summons shall be .st rv(>d at least three days (nt) before y*,, , , f \. , . the Court, either p(M'.sonalIy, or by leaving the same with a ^^ _ , - . _ ;,'r()Wii-up person at the residence of the juror. C. S. U. C. r 1!), s. 124. ;'. ^M *i^*. • ■ • •■ v"s »■■< , s'." 4^ (i) The wilful ()mi.«<si(»ii of the collector to do .*»() woidd rendor liiui liablo to iuiliitincnt for iiiisdomuauour : Ko.scuu'b Criu). Kv. 8tli Ivl. 810, 811 ; .sue lit\r V. ir.o/vH, U. & H. C, C. 48 n. {k] Sl'o notes to section 72. (/) That is, if re([uirc(l by any jiarty to a suit under sections 109 and 1 10. (w) That is exclusive of the day of service of and the day of tin' sittin^js of the ('ourt : Maxwell ou Statutes, .'llO ; see nr)tea to section 70. I'sifni direc- tinii.-* to tlic Haiiitf, as t(» service of the jury sinniiious, wiil be found at jmges H;{ and 144 of '2 II. ('. b. .f. : "The HailiU'shouM note on a li^^t prepared for the |iiir|iose tlie tiino and mode of service on eaidi juror, and make return to the ('Ink hefori! ("ourt <lay," page 144. When service caniiot, 'oe ])er.><onally mad* (whiih sliouhl, if possible, he done in all ea.ses), tiie Haibli sliould not only leave the sunnnons "at the residence " of the juror, l>ut witli " n iirtnun-ii/t jiernon" tliere. It would be well, in the event of any proccedinj^s for non-.ittcmlaiice. fcir the Hailiir to make a note of the naiue of the ptirsou so served on the oriji;inal Milip.eua. As to "personal" service, see notes to section 7-. The HailitI' should, ill tile event of proceodiiiijs for eoutenijtt, exhibit to i^arty suminoneil the original : In re Holt, per James, Lord Justice, W. N. 1871), page 48. « .> 144 CHALLENGING JURORS. [ss. iin, iir.. Partios entitled to cliulU'iigu. Pimalty on jiiriiis (lis- MiiiiiMiiins. 115. Either of the parties to a caiiH* shall Vm- entitled td his lawful challenge (n) againnt any of the jurorw in iik*- manner as in other Courts. 0. 8. U. C. c. 19, «. 125, llOt Any juryman who, after being duly suninioned [a} for that purpose, wilfully neglects or ri'fuKCM (/>) to attend the Court in obedience to the Hunnuons, sludl be lialdc U) a tine ((/) in the discretion of the Judg(!, not exceeding four dollars, which tine shall be levied and collected with costs. in) The right of challunge is a Coinnioa Law right, and oaniHit bo taken away cxccjit l»y exjut'ss enactiiioiit : linnctt v, /-"/*;/, 'A \\. b. CasoM, .S'.l."). if alii iia>:c is relied on as a ground of clialleiige, tlie party wlio lias an ointortuuity of making it, and iiegleets it, eaiiuot afterwards make tlie ohjectioii : lici: v. Sn/tmi, ii h. & ('. 417. A juryman hIiouIiI not have an iuten'st in the risidt of tiie suit : Bdilfij V. Mdvauhiji, 18 Q. H. SIT), but where a judilic eomjtauy was a paity in an ;ii'tiun, the mere fact that one of the jurymen was a .shareholder in tiie t'oin- jtany was h' hi no ground for granting a new trial : WillhtiKO v. (I. W. Ilij. (.'a. ',' H. it N. 8(»1); see also l\ic/itiri//«iii v. ('inuidn Wr-st Ftinmrx' /iiMurdiin- L'd. 17 C 1'. .S4l. A juror cannot he ehallenged Ijeeause in a previous case he hat! shewn some dissatisfaction with tlie law as laid down hy tlie .Judge in favour of the party ohallenging : J\<ir.i( v. /n'lH/r/ss 2 F. & K. 1.S7. Under our (ieneral Jury Act (Rev. Stat. c. 48), alienage Wduld he a ground of challenge in Divi- s.ioa Courts uiuh-r the 1 1 1th section of the D, C Aet. Want of nualitieatimi (exei'i)t in respect of property) is a good ground of ehallenge : cap. 4.S, ^>. 10,"), On t'itlier side tlir<'< of the jurors can he jHi'i'iniittn-ihi challenged wHhout assign- ing any cause : section iO(). Heeause a juror alHrms, attords no ground of challenge; section 1()7- " if a juror he challenged for (aiise hefore any juror aworn, two triers are ajipointed hy the CtMrt ; ji.id if he he found inditl'erent and sworn, he ami the two triers shall try Mie next challenges ; and if he he tried and found inditi'ereiit, then the two tirst tiii.'rs shall he discharged, and thf two tirst jurors tried and found inditFeri'nt shall try the rest;" Koscoe's ( 'riui Ev. Sth Kd. 'iiO; lioj. v. SmUh, .'W I'. ('. IJ. •-MS," The challenge of a juror must he hefore the oath is eonimenced. The moment the oath is higun it is ton late. Tin' oiifli in hcijun lnj tlw jitrnt' tak'nuj thf Imok, having heen diiveted hy tht ofheer of the Court to do so ; hut if the juror t;ikes the hook without authority, neither jiarty wishing to challenge is to he jirejuilieed theri l)y : A'. 7, v. AVw/. y ( '. & 1'. l-i*. rpon a challenge for cause, the person making the ehallengt must he prepuivil to prove the cause: l\< <\. iSoi.ij/f, M. C. C. ."i|. I'nder -I years or over t»0 years wov.ld he a ground of ch.dlciige under tliia statute : sti Malrahy v. Thr ijiwrn, b. U. :} H. b. ;{(M>. (o) See notes to sections 72 and 97. (;)) It is submitted thiit tlie word "wilfully" here means "W.antonly " or " causelessly :" /*♦■/• Bramwell. B., ii> Smith V. Ji,tniliitni, I Kx. 1). 4'J.'i and 4'24. Further, that where a person summoned aa a witness W(Uild he hound t.>atten<l, so also must he when summoned under this aeetion : see iioten to miction '.(7. (7) Negbct or refusal to attend is a contempt of < 'ourt, for which the statiit* provides a remedy : see AV piirti- Lrfu and the Jiul()i' n; tin- Count i/ Court ,,/ tin Couutji of Cur/ftiiii, 24 C. P. 214. If not 8ummone<l three dayn "at hiiwt, ' the juror wouhl not he in defftnlt ; t^'ivjnfr v MuHon, ft P K IH7. .\ juryman ahouhi have an opportunity 0I hemg heard ; set notes to Beetions '.>7, l'»(>, 21' and 22.'<. Hut the Court, in C^arrn v A'ir/io/, .'{ I><«iwl, 115, refiwoil to buar cuunael for a juror who had hwM tiutxl fur contempt. SS. 117-119.] PROCEEniN(iS AGAINST COLLECTOK. un 4 •■ . . * by tlic sumo process as any debt or jndiijinont recovored in tli(! aiii<l Court, and shall fonn part of the Consolidated Kovenuo Fund, il S. U. C. c. I'J, s. 12(5. 111. Service as a juror at any Division Court shall not Smicpas exempt such juror from servini,' as a juror in any Court of Divisi'.m ecord or in tlie I ourt oi Cliaiiceiy ; and no person shall .xdjipi iiim lie compflled to serve as a juror in any Division Court wiio at supnidi" is by law exempted (>•) froiu servin<,' as a j)etit juror in the ""' *' Superior Courts. C. S. U. C. c. DJ, a. 127. IIH. If any Collector, for si.\ days after demand made I'locooding* in wi'itinjT (.'*) neglects or refuses (l) to furnish the Clerk of ('-oiirrior the Division in which tlie Townsliip, Town, City or VV^ard i',',ni,'iiis'h tor which he is Collector is wholly or in ]iart situat(\ with a iWi'di jur!!r.s. roi'rect list of the names of per.sons liable to serve as jurors in the Division Coui't, according to the provisions of tlic one hundred and eleventh section of this Act, the Chirk may issue asunnnons to he personally served (?/) on the .said ( 'ojlector three days at lea.st (v) before the sitting of tht! (Jonrt, I'Cfjuiring him to appear at the then next sitting of the Court, to shew caus(! wh}' he refu.sed or m-gU'cted to comjily witli the nrovi.siona of the said section. C. S. IJ. C. c. I!*, s. 12S. IliK TJnon |)roof (w) of the service of such summons, .inflp' inay . ... , lin.'Col- tlic .Judge may, m a summary manner, nupiire nito the iirioi i„i iicglcft or retusal, or may give turtlier tnne, aiui may impftso duty, siich tiiK^ npon (,»;) i]w Colh^ctor, not exnu'ding twenty dol- l.u'.s, :is he deems just, and may also nitike such order for the |>uyiiient by the Collector of the costs of the t>iiic"iMlings as to tlie said Judge st!ems meet; am' all onh'rs made by the (r) As to the persons who are exempt under tliis section, see Ucv. Stat. cap. 48, st'i'tions 7 to 12 inclusivo. {■■<] '1 his is exolusive of the day on which demand is m.ado : Younif v. Hiifcjon, <! M & W. 4!>. IM It is to be o}).served that the Mcnl " wilfidly " is not used here as in tcc'tinn lir> (m) Sec notes to section 7'2. ( r) See notes to section 70. («') See notes U\ stctionfi 72, 95 and fWV (r) The remedy here jiiven isciumdative, ami in addition to tin- pnnishmcnt ''•r tile ofreiKc pointed out in the notes tn section II.'}- Maxwell on Statutes, -m ; Ui(j. \ . Buchamn, a II. B. 883 ; Hex v. Greijory, 5 B. 4 Ad. 555. > ; '■••v.' -V v>^;0 U6 JUDCiE MAV OltDEU JURY. [sH. 120-121!. ..'v '7:? ' ■^••^« ■■■ >••■ Jmlj,'! '!< onliM- fcir ]myiiMiit liy t;ollcct(ir, how III- loniMl. J||(1},'I''S list aiiiljiiiy list. Five jiiriirH 1.11 hr rlM- l)ain;llt<l,A:i', Venlicttobe uiiniiiiiiouH. Judge nmy orili T jiny til lir illl- li.iuilU'd to try :iiiy (lisiuiti'd hcL Jii(lsj;o for the piiyiiKMit oi n t'nui or costs sliiill ht; cnfoi-ccd !igiiii)st tin; (!()ll('ftor hy such iiKniiis (//) us tire provided for enforcing judgments in the Division Courts. C. S. U. C. c. I'J, S. lL"J. Vii}. Tlie causes to l»e heard l)y tho Judge ahine sliall be set down for liearing in a separate list from the list of causes to lie tried l>y a jury, which two lists shall ltesev(n'ally called "The Judge's List " and " The ,lury List," and tli.. causes shall be set down in sueli lists in the order in wliiih they were in the tirst instance enttM'ed with the Clerk : — "The Jury List" shall be; first disposed of, and then " TIk Judge's List ;" except where the Judge sees suJHcieut cause for proceeding ditlereutly. C. S. U. C. c. 19, s. 130. I'-Jl. Five jtirors shall l)e empanelled and sworn (.:) to (l<i justice between the parties whose cause they are recjuired to try, according to the best of their skill and ability, and to give a true vertlict (a) according to the evidence, and the vci- diet of every jury shall In? unanimous. C. S. U. C. c. !!•, s. 131. 1*^!', lu ca.se the Judge before whom a suit is brought thinks it proper to have any fact controverted in tho cause tried by a jury, (h) the Clerk .shall instantly retiu'n a jury ei five persons present, to try such fact, and the Judge may give judgment on tlie verdict of the jury, or may grant u new trial on the application of either party, in the saiiii- wav and under similar circumstances as new trials aiv (//) See notes to section I'A}. (:) See Form N(». 110 (y). ((t) In E.I- part)' .^fonjnn, In re Shnpi'nu, 2 Ch. F)., page 82, James, L. .)., savN. in s])eaking of the venlict of a jury, " that the linding nnist lie considered as a ri'x jiidirdhi, conclusive l)etween the parties, unlesis and until it is set asiiU/ The .Judge should receive the verdict of the jury, even if he dill'ers with tiuiii; Jart/iiic v. Smith, H \V. Iv. 4(>4. The remedy would he a motion for new trial under sec. 107, if the verdict was not warranted hy the law, evidence or Judgf t' charge. (//) It is fre(|uently the case that Judges find certain ([ucstions in a cause can he better settled hy, to use the words of liaron Mraniwell, "that true l-'ouit of Equity, a jury, which, disregarding men's bargain and the law, will decide c/f"' is rijht in spite of all you can say to theui," than by themselves: 5 L. J. N. S. 293. r,. 123, 1-24.1 JIDOE MAY DlSC'lIAUiJE JL UV 147 jjnmtfHl ill otlver cases on vordicts of juiies. ('. S. U. C. r>:5. If ill iinv rnso tlio JiKk'ft is satisfioil that a iury, -'"'if "'.>>■ aft«'r Itaviuj' been tmt a rcasonaldo tinio, cannot aj-'ree upon .imy ""i . tlit'ir vrnliot, lie may discliar^'c tlicni {<•) and adjonni the cause until the next Court, and order tlu^ Clerk to siiinnion a new jiirv for the next sfittini.' of the Court for that i)ivi.si(>n, unless tin? parties consent that the tludi(e may render judg- ment on the evidence already tak(!n, in which wise he may ;,'ive judgment accordingly. C. S. IT. C. c. ID, s. I.'i3. rilOCKEDINCJS TO GAIINISK UKliTS 1**4. Suliiect to the provisions of the next section, when To '.jainisli ' ^ dubls. .uiv (l"l»t or money tlemand ('/) of tln^ proper competence {>',) <if the Division Court, and not lieing a claim strictly for iliiiaages, (/) is due and owing to any party from any other (-•iThc rule laid down nt jiago 304 of Roseoe's N. P. Kv. 13th Ed. is, that "tlic jury lu.iy l>y cunseat, t)iit not otherwise, he distharjicd fi-nni ^'ixiiij; a \fiilirt oa certain issues. If the jury cannot a;,'ree at tlie close of the v\ssi/es, tlu'.luilLie may, in liis iliscri'tion and without consent, diseh!ii'<j;e tliem:" Xi ir- (itii's rnsr, 1,S Cjl. H. 7I<>. 'I'liis section j,'ives a discretion whether ]i;u'ties i;onseiit iir not. Ill tlie higlier ('(Uirts, an express (U- fitrit consent is usually given, if the •luilu'e thinks the jury shouM he discharged. {'h Tile same wonls are used in seotion 70, and the notes to that section have ;iii e((iialiy diivet reference to tins. {<•) See notes to section 54. {/] Any action of trespass or trover W(udd not lie tlie subject of a suit for ^;iiiiishiiient )(i'oeeeilings under this section, l)'>th hcing "strictly for damages;" see .V/((»/r v. .s7//((/', 1>S li. T. N. S. t'JO ; Mayiu' on Diim.iges, n'nl Kd. M.SS and 'MYl. Nor could proceedings under this clause lie taken for hreaeli of warranty i.f eiiattels (Mayne, Kil ; Xorthii'ood v. lieiitiu-, 'JS C. I'. 2(l'_») ; or against an Attoiiu'y for negligence (/'nliiiixnn v. Kiiinniii'/, L. |{. !M'. 1*. 41.')); or eoin- liii'iiiisiiig an action against the express iliicction of his client {linlhr v. Kniij/it, L. I!. 'J Kx. lOil) ; or for wrongful ilismissal of a servant [llnrthiinl v. d'l iirnit liniiitiiiii' lidiik, 14 I,. T. N. S. 8(i.'J, /»;• W'iiles. ,1.) ; or for not aci'eptiiig goods sold illoiiniKiii V. ^V'r>7/, !> li. & ('. l4.")) ; or fur nut delivering goods {/iroirn v. Miilhr, li. [{. 7 Ex. ;{l!l); or for not accepting stock s(dd(/*.;^/ V. Flitllur, K! L. ,T. K}. \K. 'M\\,S) ; or against a public carrii;r for negligence {Shii/).<(>ti v. L. timl N. U'. IviUiniji Ciniiiiii/);/, I l^. li l>. *J7-i) ; or for breach of eoveiiant to repair ( Will'min.^ V. W'iUiniiis, L. R. !• ('. I'. ().")!() ; or for not leaving prnnises in rejtair (l/i ml r-sau V. Sijiiirr, I,. |{. 4 (). M. 170) ; or on a bund to du something besides the mere jiaynieiit of a sum certain in money (liriiiixcnnilii- v. Scurhroinili. (1 (,> li. l.'i) ; or on a replevin bond (Hi.); or for negligent driving of carriages or trains '•aii.-iing damage (liiiidhi'Kil v. Mlil/<inil Ji'dilii'di/ < 'mii/Kiiiif, L. It. 4 ^). !>. .S70) ; or iiaiidiilent misreiireseiitation (Swif'l v. Ji'irsliuri/, L. U. !> (). M. .'{0! ,'{P2) ; or fur iualii;ious arrest {/hiirnnfv. Lovi'fjronc, L, J!, li Kx. 4.'V| ; or excessive distress If'// v. W hittakrr, L. Jl. 7 Q. B. I'iO 1'24) ; or 1. regular distress (Knhild v. H'jaion, 7 Ex. 407) ; or an illegal distress (Attack- v. Bramwdl, W B. & S.'O'JO) ; 1 ■ », '■ ^ ■'; • « . j: 'X^'t:- >■•■■»'.■;,. .■■■■'. • ■ r- * ; . s . -■ ... '■, .V' li-. .'.v¥,-;., >'.■■■* %'■ ■■ ■■>. -■ • -f' • •■»■♦-*.,■ ■ .^'■'■.■-i^ii^■.'•i|:•';^"•■ . M < 148 OAUXISHEE runcRKDINOSI, [h. l'2l pfivty, (7) either on a jiul^^tiuMit of iiiiy PiviHion Coui-t or otlicrwisc, iiinl iiiiy (U'\>i is <lin' oi* owiiij; to tlu' dcht-or tVum uuy other [liirty, the party to whom such tirst uieutiuiicil or wlii'ii no rent ihit- (//'.) ; or in (Ictiinic ( U'Uri/ v. Cnnrfon/, I H. k S. L'.'i;t| ; oi- ri'iilcviii {liihlis V. Vrnihxhinth, I,. I!. !S < '. 1'. 4r»4) ; or ;i;,'aiiist a Sl\crill in liailill' for wroiigl'iilly si'i/.iiig j^ood.s (Mni/fnir v. Jlirrhic, 7 V. I?. 2'J!() ; or not urrt'stiiij^ ( Williiiiii-t v. Mos/i/n, 4 M. it W. Hf)) ; or for iillowing ji piTson to i'.s(ii|K' ( Marnii' v. ( 'lurkr, L. U. I < ' P. 4()M) ; or for not levying, or a fiilwu n.tiiin (llnli.iiin V. '/'/iilhi.iiiii, I,, li. 'J t^. H. (>4'2) ; or on any contiact of imli'innity {'/'/i< n/'iilil V. /'(lilirai/ /'(isi« n;i<r/<' Amk. ('(iiii/hiiij/, 10 Kx. 4.")); or for injuiics resulting' froni tlie nrglij,'t'nt Uci'|iing of aniuialH (El/in v. Lnftitu Iran < 'nui/iiinii, L. J!. 10 ( '. I'. 10) ; or for assiuilt and tiattiry and fal.so iiniirisonniunt ( W'unriri- V. Fiiiilhs, I'J M. it W. ."lOT) ; or hy prini'i|ial against ii is agent for ncigligiiice {/'iirhrv. MiK'iDiii, L. It. 10 Ch. '.((i) ; for non-iUlivory of ti'ligrapliicMncssaiits {Siiiii/ii-s V. S/iKiii, 1 ( '. 1'. I*. .'{'J(>) ; or for iifgligcnct^ in transmitting smiiic {/)if/:<iiit V. h'liitir's 7''/itir<i/i/i ('<iii,/iitiii/, '_'('. I'. 1). (i'J) ; or for torts gcni'f.illv (Maynt' on l>aniagis, .'{(i) ; or in an action against a vitnuss for non-attfiidaiuc ou 8ul)iio'na: Y'litimtn v. /timiisip, 7 t'. 11 N. S. (J'28. (;/) It will 1>L' nltsi'rviil tliat the claim of tlio primary creditor iinist \w "due 11111/ owing" tiiat is, past due hcfore ho can pi'occcd ; but tliat the "dclit" of the garnisiiee to the primary delitor need only he "due or owing,' that is, ihic (*/• ii If rill III I due al tlie time lie taki's the proceeding for garnisiinu;nt under tliis section. In Tn jiji \ . Jmn s, I,. It. 10 (^. li. pages oD'J and "iK.S, Mlackliurn, .1., in construing the(ilst section of thi' I'lnglisii ('. L. P. Act, /((/'/, that the wortls "/Ac ilclil dm" meant "I'ithcr the delit when due or tlie deht then due," and that an order might \n: made, not <inly attaching an accruing deht in tiie hands of the garnishee, hut also an <ii'der foi' paynumt of the deht accruing due when it shmilil i)econie payable hy the garnishee. It was lulil further, in that case, that it was not necessary to wait till the deht had become actually payable bcfurc making the order for payment; see also Jdikx v. Tliniiip.inh, K. H. & 10. O.'l, ami S/tnrk'i V. yiiiniiji', H Irish ( '. L. R. 2')) ; see also sec. 141 post, /;( rr S/nrklim Mnllrdhh' Iron (Junipitiii/, '2 t'h. D. 101. A fair test of a debt being garnish.ihlc is wliether or not it is the subject of set-oil : IIVW* »• v. ]V'li.i/ir, .SI Beav. '.\'X\ ; Mr.Viiini/ifiiiiv. ir(7>.s7( /•, () I'. ('. L. ,J. 17. Any debt that is the subject of set- otV can l)e attachi'd undei- this section : lb. If a debt is attachable, the reco\ciy of ju'lgmmt iiu it docs not make it the less so: MfKnij v. Tuil, 1 1 ('. I'. 7'_V A verdict in an action of trespass before judgment is not a "debt" within tlu meaning of this section {S/ntiv v. S/iair, 18 L. T. N. S. 420 Irish (). B.) ; or in any other action where thert! is a verdict for uidiquidated damages, and no judgment entered : Jmiixx. Tlmiiiiixou, H. B. & K. (i.S ; Dnx-'nr v. Ji)/iii.'<, (> C. \\. N. S. 4'2!>. "There is no existing deht until judgment" (/»cr Willes, J., //*.. page 4!i.")) ; Virforiu Miilnnl Firr Iiixiirdnri' (.'uin/iaiii/ v. /{I'thiinc ctdl., 1 App, II. 4,31. Nor is a verdict obtained in default of a ilelivery of a chattel a " debt : III re Sciirth, L. R. 10 Ch. 'J.'{4. Nor a verdict against an insurance comimny for unli(|uidated damages, though not moved against, and which the company hid promised to pay ; lUnjil v. /Idi/ins, .') P. K. li) ; see also 'J'litfv. Thv CitrponiHi'ti nf Toriiiiln, ;{ l*. Iv. 181 ; Hank' of Torordo v. Jiurtoii, 4 P. 11. 5() ; (hn/mir v. A'm v. 2 1'. R. 282. Nor a claim for misrepresentation [Pohcrtu v. Thi' ('orpontlimi ni the Cdi/ of Toroiili), 10 (irant, 2H(i) ; or an uncertain amount claimable under .1 bond: Jolnimni v. Dininond, 11 Ex. l'.\. Hut otherwise if the amount is ccrtiiin : per I'iirke, Fi., at page 80. A legacy in the hands of an executor cannot he attachetl, even though he proniiseil to pay it, if ordered to do sf) : M' DoiniH \- HoUitter, '.\ W. K. r)22. A 8ui»erannuation allowance to a retired clerk of tin East India Company, granted by resolution of the omirt of directors, was/"/'' not attachable : InneH v. hkial India Company, 17 C. JB. 351. Nor divideuds pay * ■ i 121.] WHAT DEHTS GAllNISUAIJLE. iia >i' '•• ihtltt (ii- iiionoy <loni!iU(l is so dud iuid owiii;^ (licniinaftor ilcsi^iiiitod tlic |iriiiiiu y croditor), iiiuy attach and rccovoi', in fill', manner Jiorcin jii'oviihMl, any (l('l)t tlu(i or owiiij,' to his ;ilili' t(i the wife of till! rXL'cutioii di^lttor : /tuujlii/ >'. Kuhnisnii, 'J.liir. \. S, 111/). rill' iiiiTc ]MiaHil)ility tliiit wiifii tin; day of piiyiiifiit iirrivcs, oii jittiicliiiiriit of a • lilit iiiiiiiii^; duo, MiLTc iii.iy lie n di-ft'iici! to the rt'cnvi'i-y of it, is no i,'roiiii(i for fcsistiii:,';lll iltt:K:liiligor(liT : S/mrkt v. Y'lUinji, S liisli*'. 1,. 1!. 'J."l. 'I'llc iUdcccdM if .•111 ■xciMitioii iiifiv I'L' iittiiclicd in tilt! .SJiiTitr's liiunls for a iiti)t due liv tlu' • xiciition (;roilitor : Miirnn/ v. S'nii/>.>'ii)i, H Iri.sli ( '. !,. il. App \lv. Adivitltiid |i,iv:ilili' I'V tl)L' assigiiocs ill liaiiki-iipti'y to a cniditor, who liad proved in tin; It.iiikiiiptcy Court, was lu/il not ganiislialiji! : /ioi/sf v. Siiiiiisnn, S lri«li('. L. K. .VJI{; /!> fininxill, L. It. Hi'. 1'. 'J4. I'poii ;i joint judLiiiu-iit rf<'ov(M('d a;,';iiii8t st'Vi'ral, a dcht duo to oiu! or nioro of tlio jutlj^incnt tlolitor.s may lio att.ioiiod in tilt' liimds of tlio itarnisiioo (.V(//(r V. Mi/ini, I Iv it Iv 1((7.">I ; luit a ilold owinj; to t\*(i cannot l>o attai:lit'd to satisfy tlio olaiiii of a croditor jmainst .iiily ono of dixnt' two : /// re Sumrl v. Mi//i ;{ I'. I!. :{s.-> also Mrr rh- /' !H'. l*. .'{.SO. A judj^'iuont oroditor i!annot atl.itili a ilolit duo to tlio wifo of the iu(l>.'iiniit tlolitor undt!r a Hpoci.alty ^ivoii to lior whoii slio was nnmariioil : Diiiijliii V. /'ohiii.ion, '2 >\\\r. N. .S. II4.'». It is sulunittod that a croditoi's taking a (Itilititr on warrant of ooiiimitmont for not m.'ikin^' |t;iynifiits .locorilin;,' to nidor luadf oil jiidgmout summons prt!VfMts an attaflimont of tlio liolit iliiriii;^' dftonf ion Jfiiiruli/r V. I'lirk r, (I II. tt .N. A'.W] ; hut not so if tlio ''ariiisli t'O foil Id 1. •trrfstfil, sul. (Jiiin-r : Murjilr.^ v. Hnrlliij, 1 1$. i*l; S. |. Whoro juil;,'niont in rfciivt'rod ag.ainst an oxooiitor, a doht tliio from a third jiocson to tho tt!stator'» fstutu may ho attaohod : Jiiuimi v. /ftihf rf.i, (i H. it N. 'J.S. A jud^nii nt oroditor ■aniiiit (without loavo of tho Court of Ciiano(;ry) attach nionoys in tlio liamls of Us icc'ivoi- which havo hoon dirocti;<l to ho'paid hy him to tho Judj^nnnt ihltto Ik Willi, ,11 V. lli;,;iii, (Mur. N. .S. JOtt). In Willi, u I! \1 Irish Ch. 1!. I7:i, it was /((-/(/ that monoy in a Shorill'n hands, loviod umlor an attachinont for (lists awardod hy a dot:roc in otiuity, I'omainod in ,'iisfi,i/iii l<iji.<, ami was not, Mitliipiit furthor urdor, tho proporty of tho party who issiiod tho .•ittat:liniont. .All ordor upiMi a j^arnishoo has no oporation upon dohts of which a judj^mont "Iclitiir has already divostod himself liy li,iiiii jiih' assigninoiit ; IHrnrli v. Cuifis, l-SC. 15. 7.">7 •ir,jii,-<,i)i V, ( 'a, ,111, 'Jti \i. <'. K. •_'«;. .Ami whoit; tho <lohtoi- ^''siuiiiii^ ilolit is insolvoiit, it i.^ doiihtfiil if tho jijdi;moiit croditor can t.'iko idvaiitagf of it ; /!>. .An unsottlod hal.mco hy ono partner to ;im)tlier oaniiot ho attached, hut if asoertained it can: Cmii/iltil/ v. I'ulin, II l'. C. L. .1. (58. Ni r iiioiieys payahlo u ilor liahility inotuTod on indoninity hond ; (I'rismilil v. Biiijiilii, llrniilfiinl mil/ (lii/i rti'/i I'luln'ini Coniiiiiini, 'J I*. I!. 17iS. It was douhtod His lit ai ill Thf (', lull ilcciar ' rriit/ Hunk v. Willi, una, "» I'. ( '. L. .1. (>(! dlotl icr nioiiov 111 th I assiynoo at Common L.'iw, for thi! payment of dohts hefoie dividend ed, was attachaldi:. It was /('/(/ in Smilli v. I'riitt mnl I. ,1,111 Cniijuiiiii nf (/<(, •_"-' V. C. 11. that : sui'iiliis money in tho hands of mortj:;a{,'oos after sale umlor [lowor in mortgage, without ;iny oovonaiit foi' rt!payment, wiw imt i^.u-iiishahlo ; hut see MiKni/ v. MitrluU, i> V. C. L. .). til, and \irnl \. lln V. K. ;i;{l ; si'O also HihiiI v. // itilii. a P. I{. 1.-); al.so 14 h. .1. N. S. 171 &• -SH. Moiit!y payahlt: umlor a ooiitiact for work iloiie for a iiiunit ijial »'iii|M)rati(Ui is garnishahlo : Alil'ii v. /iiioii/ir, '_' 1'. K. Xi'J. .\ii attaehmint of a jiiiliiiiiciit overrides aii Attornov's lion or cimtrtd over it in rospeot of i/iii, rut ousts : t/iiiiij/, V Eihnirils, 1 \\.\ \. 171 : Mn;-,',- v. (.'nins, I.. U. ~ (). M. 4!»!l ; J>,iri,{sjn V. Domilits, 15 (irant, .'147; M;/. v. /lin.<,>ii, 2 I*. It. JL'tO ; /imik ,<t' ('I'liir Citwiiln v." Wiilliic'', '2 I'. R. 'A'>2 ; (\itt„n v. ]'it,isitfarl, (1 1'. R. iHi. Hiit if till' jud.nmont creditor has notice of the lion ho will take siihject to it : Eiiih II V. r<,i,i,i,i/„u,i, 'is L. I. Kx. '-'i;{ ; s. c. 4 M. it N. S71, Am, Ktl. ; ,V ,'/'«/'■ III v. /'rollii'i; ;) -hir. ^', S. 711 ; The J>f. Ihicii L. i\. '1 A. & E. 1. Money in tho hands of a !•-•( ■ 4'. •■' ■ ' '■•:-'• -S #. t> .% V] <? /}. A ^3 /A ^V'^ ? IMAGE EVALUATION TEST TARGET (MT-3) 1.0 !f:i- ^ I.I ■a Hi t US 25 2.2 2.0 1.25 1.8 U IIIIIL6 Photographic Sciences Corporation // / f/j m V iV :\ \ "^ .V ^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^ ^ ^ % 150 WHAT DEBTS GARNISH ABLE. [s. 124. ,i.i- •■'' h m III •: '. ■ ' iii-":!^..,^ ''■ -'■ tr i ^ ,1.^:^ ^^tf --•" - ■ -'■■ ,■' ■• 'Ik.. • > ■■'" -'-^ 1? •'■'.• .*: -: 1.**. -»-.-t.1 del)toi- (hereinafter designated tlie i)rimary debtor), from anv other party (Jiereinafter designated tlie garnishee), or sulH cient thereof to satisfy the claim of the primary ci'editor. corporation or conipany is attacliable : Snhnnan v. Donornn, 10 Irish C. L. R. Ap. xiii. Rent not due is not attacli.al)le (Vommcrchil linuk v. JorrU, 5 U. (.". L. J. (30 ; McLaren v. Siuiwvrtli, 4 U. C L. J. 23,S) ; hut rent overdue is : Mitchell V. Lee, L. R, 2 Q. B. !.'">!>. Nor is the salary of a municipal oiHcer, who holds his office at the will of the coi'poratiou at a yearly salar3', ixiyable ([uarterly, garnishahle until some part of it is overdue : Slinule^ti v. Mixtrv, !) V . ('. L. J. •264 ; and to the same effect is Hull v. Pritchctf, 3 Q. R I). 215. While an action is pemling against a garnishee, an order for payment would not, without evidence of collusion l)etween him and the judgment debtor, In; made : Rklmrdxon v. (Jrearen, 10 W. R. 45. A creditor cannot obtain a charge in equity on an equitable debt by analogy to ;\\\ attachment of the legal debt iiiidtr the garnishe.' clauses : I/ors/ei/ v. Cikc, L. R. 4 Oh. 02 ; Re Price, L. R. 4 ('. P. 155. Suii)lus money in the hands of an as.signee of an insolvent estate M'ould not be garn-ahable : Re Greensi//, L. R. 8 C. P. 24. la JJesf v. Penilmikc, L. R. 8 Q. '. VY^, it was held that a person whi; had obtained an (;rder for the costs oi -in int-.>-j>leader issue, and caused it to have the force of a judg- ment, was not a i';dgment creditor within the meaning of the garnishee clauses: see also Snttiler- ' Local Mariue Hoard v. Frauhhiiid et al., L. R. 8 Q. R. 18. \Vlu'7i attavhir- >V' .;r is made, the garnishee cannot retain any money for any claim which h ; .av .lave against tlie primary creditor ; tiie .Judge must make order lor the p;._\nv;nt of the M'hole amount due from the garnishee to the judg- ment debtor : Saii'j'fum v. SWifon and Beer Raihraji Cniupaiiif, L. R. 10(^. H. 2S. But where there are cross claims between the garnishee and judgment del 'tor, the balance only can be attaclied : tfesse v. Buffalo, Brantford and iloderk! Railiraij Coni/iani/, ( 'hamljers, HOth March, 1857, per R(d)inson, (J. J. ; Ncdhij V. xame defendants, 3 U. t'. L. J. 111. A creditor who served an attaching order before bankruptcy pn)ceedings was, in England, hehl to l)e a ereditid holding ecurity within tlieir l)ankru|)tcy laws: l.otre v. Blahmnre, L. R. \(l Q. B. 485 ; Ex parte Josiliine, In re lV((tt, 8 Ch. I). 327 ; see also Enmnnvl v. Bridijer, L. R. <» (,). II, 28(;'. Qiaere, the effect of <in attaching order on insolvency proceedings in this Province? The garnishee cannot substitute any different mo<le of paynH3nt thai; that which subsisted ))etwecn the priniary creditor and the i>rimary debtor : Turner v. Jones, 1 H. & N. 878. If I>efore regndar service of the attaching order or garnislimout summons (an order for execution having been ga-antcd), the garnishee honafide l)ays tlie dcl)t, he is protected : Cooper x. Brayne, 3 H. & N. 072, Amer. Ed. Dclits <lue to a corporation are attacliable ; v. The JTainhmrih Companif, 1 Mod. 212. Part of a debt may be attaclied: Johnson v. Diamond, 25 L. T. 185; 11 Ex. 73. Money in the hands of (iiAcrmnent is not ganiishable unless they have made themselves jK'r.'^onally responsible : Uidhii v. Lord Pahnerston, 3 B." & B. 275 ; Macheerth v. ffahlinai'nd, 1 T. R. 172. Where there are mutual debts between the del)tor an<l tlic garnishee, t)ie creditor can only recover the Indance against the garnishee: Nathans v. (liles, 5 Taunt. "mS. It is doubtful if a |X)rson can attach monej^s in the hands of himself and another : Konell v. Ifidlctf, 4 B. & Aid. C>H\. If the garnishee has a lien <m money in his hands, it must be satisfied before he will he ordered to [)ay over : Xtdlmn-' V. Giles, 5 Taunt. 558. An executor must revive judgment in his name l)e('c'iv he can take these procec<lings : Bttjinunl v. Simmons, 5 li & B. 5!> ; Vnninii n ud Bank V. Williams, 5 IT. C. L. J. (5(). Ah to the effect of a deed of eomjjositinn and discharge by garnishee after ()rder made for him to pav over. (Jiiare : .sec Kent V. Ttniilinson, L. R. 2 0. P. 502. A garnishee who ]iays money undei the compulsion of a Court of law is protected ; hut should tlie debt be a-ssigiictl, |ri: --■"', -v 124.] WHEN DEBT ASSIGNED. 151 4.; '.• , ,sii])ject always to tlie rights of other parties to the debts 32 V. 0. 23, s. 5. owing from such garnisliee, and he have noticu of it, and not call the attention of the Court to that fact, he would not he: ]Vou<l v. Diuiii, L. R. '_»Q. B. 7.S; T/i,- Lender L. R. 2 A. & K. .S14. I'ayiiH'nt into Court would l)e a discharge, and is the safest course ; Cidnr/ioiise V. IVirh'ii.i, L. R. 8 (.'. V. '2!),"). A garnishee order would not l)e given to attach adiviilend in tlie hands of an olHcial liquidator of a conniany wluch was being wiiund up in Itankruptcy : Jhiirson v. Mal/< ;/, 1 Iris'i 'I. ('. li. 207; l'> W. I!. 71)1, s. c. A debt duly assigned is not garnisliablc : Mor iihuj \. ]{innhaU, H( (.". V. '284 ; J7lr/<rk v. Confes, 18 C. 1^. 707. But to make ai. ussiginnent of a debt pre- vail over an attaching order, it is not necesL iry that notice of assignment sliould be given to the garnishee : Broirn v. ^fl•(,'|l[|l)|, o P. R. 2.'^1, and cases there cited ; A'olihisun v. XeMtt, L. R. 'A V. V. -2CA ; and (Jranfv. McImjiuII, *}<) U. C. H. 412. An order to pay over should only ))e opened \\\w\\ notice to all parties interested: Bunk of U/)/ier Cdtiai/ei v. Wnlldn , '2V. W. 'A'y2. There is no power to order or permit a suggestion to be entered of the death of a garnisliee so as ti) get execution against iiis representative : M'tinl v. Vdiin, '.i L'. R. H2;i. The mere fact of a garnishee being an executor is no ground for not ordering him to pay the debt due by him as executor to the judgment creditor: Tiffdini v. BiiHdi, 18 C. P. 91. A debt due by the garnishee to the judgment debtor as executor is not garnishable : Mdcaii/ni/ v. Jlmnhiill, I'J (.'. P. 284. A debt due to ail administrator as such cannot be attached to answer a private debt : liiiirinnn V. Bowimin, 1 Chan. Cham. 172. Tiiere apjiears te be notliing in these Division Court sections to prevent money in tiie iiands of an agent in this I'roviuce being garnished where the garnishee resides imt of the jurisdiction [Ufiiirii V. Mcnll-f, W \J. C. L. J. 'M) ; but not where the garnishee is a foreign corporation; B<i)d- Br'd'ish North Aiiierica v. Laiii/lirei/, 2 L. .). N. S. 44; see section 127. Money in the han<ls of a Division Court Bailitf can l>e attached : Lnd'art v. Orai/, 2 L. J. N. S. liui. So also money in the hands of a Sherifl' under an execution is attachable for the debt of the execution creditor : In re Siihvf v. MUler, 3 P. R. .'185. Money sent by a fatiier to liis son, the debtor, as a gift, through a bank, was garnisiied before tlie del>tor was advised of the deposit; held, not garnishable: Cdlsxe v. Tharp, a P. R. 2().'j. (jarnishee |)roceedings will not be set aside after great delay : Corr/oii v. Bolder, (> U. C. L. ,1. 112. Where there are several attaching onlers, tlie creditors rank in the order in which their attaching orders are served : 'J'(de v. The Corjiorafio)! of Turunfo, 3 P. R. 181 ; Sweetiieun v. Lemon, 13 V,. P. 5.34. Qinvre : as to the efiect of order on party's right to set-ofF, ])er Di-aper J., in J/rNniiiihlo)! v. W'thster, G U. C. L. J. 17. To discharge the garnishee there must either be Ijayuient made on order to pay over or execution levied : .S'///v'.s v. The liroekr'dle 11)1(1 (Jftdini RdUwdji Coinpdinj, 22 U. C. R. 45!) ; contra, dtrr v. Bdiiernj't, 4 U. C. L. J. 201); MeNduiihtoii v. Wehxter, (i V. C. L. J. 17. The garnishee ca'nnot 1k! compelled to pay before credit given him has expired : Ifurdiii;/ v. liiirnilt, .'1 11. C. L. J. 31. Tlie diihcnlty in garnishing moneys due on bills of oxcliange and promissory notes discussed : Alel/i.sh v. /iiitlU/o, lirdntford and d'oderirh Ihdvnji Cumpdnji, 2 P. R. 171, and 2 U. C. L. J. 2.30, and 3 U. C. L. .1, 108, s. c. iloney paid into C(mrt cannot be garnisiied ; Jones v. Hroirn. 2!( L. T. Kep. 79; French v. Lenus, Ki IJ, C. R. 547. Nor money in the liaiids of a Iteceiver : Ames v. The TnixteeH <d' the B'lrhnhKul Dorks, '10 Wt^-.w. \Y.\'l, Where claim for work done under a contract, and one forunlitiuidated damages referred, tiierc can be no garnishment until after award : Tdte v. The Cor/Kirdtl'm of the Chij of Toronto, 10 U. C. L. J. (Ki. The remedy by attachment in England was given to Common Law Courts only by the C. L. P. Act: The fnuuK'tdl Cor- /lornthtn (Limited) v. Price, L. R. 4 (,". P. 155 ; llorsley v. Vox, \.. I!. 4 ( 'h. 92. Nor would e(piity extend the legal remedy : B/nke v. jdrris, Ki (irant, 295. It is submitted that under this statute eiiuitablc debts are within these garuish- f^j A tW; ^^*j* I- ... • i^.".*w., " -■ ■■ - '•■J.';-' -.I ■?•■.■■•■ • ;V.-4'^ ■-■■'■■ ■■,> W •' -J •* • * ? F"' . •. ■ i'-'^-^;'i.*', •.•if: *■■■.« '' - ^-■'H'-li- '^ ■'■'■■ ■■■■' t'v:v..:-<i-.v>,-' '.-',.*'> -'■ '•"•H''.-'c ■;'■': \<\ ^•.! >*>.'■,. •■■■•, «.'K.-'»,.....^;V.,-,-,- iv^,/'■■,^:-;■ ■^.*.' ', ■■■J ■ C V ■!< ■.•> . • ■• . ^■^' %:■>.'' I .;..;,•,>:■" ,<':.\ 'i ^■ ' •:■H•.^•::••^^^■ •• ' ■1'. •';•'<■- -r ••■ .■.■•■■ ■■» • .• • i -i ■ ■,•••■■».' ''."■•,'» ■ I ' r " •■ '.:; rv rj*"* 'i ■..",'-■ ■'.'*Vi _ ■ »„-; i 1 .. ,.,,u■■■• ■,.^ » i •• .to- '"^ - * 1" ■ ;^ ' - • -• .*■'■■-■■ 152 CERTAIN AMOUNT OF WAGES EXEMPT. [ss. 125-127, 1^*>. No debt duo or iiccruing to a mechanic, workman, Debts line to IIKM'llilllilS, *"•> '"'■ . labourer, sei-vant, cku'k, or emj)loyee for, or in respect of. wiigijs not to be. uttauhod, big wages or salary, sball be liable to seizure or attaclimoiit to (;x(('S3 under this Act, unless such debt exceeds (h) the surn ol" twenty -five dollars, and then only to the extent of sudi excess. 37 V. c. 13, s. 1. liver 825. Savingciause IJJO, Notliinrj in tho next precedinst section contained as to ilcbts " i» ■»»■• o 1 o ireated shall att'ect or imiiair the riffht or remedies of any creditor b('ror(3 1st '■ , . Oct., i«74. whose deljt has been contracted .before (i) the first day of October, 1874. 37 V. c. 13, s. 2. ■ „jii' ■!•,' ;.f'*i , 111 ■•'•. ' n ^'^'1 ■ "• ■■■■ .S-^^r^ •■^'i. ,:"..t#.--T.'> J* • i • '■■■ •. . . • V-W ,-■', , •* -.■■,■ ..•■'\ .<'■■ ... T ..« ■ ,- ■ - '■ i.-h. i m\ Where the Creditor's Claim is a Judgment. o*d-'to"be t^Tf- After judgment has been i-ecovered f/i;) in a Division granted on Oourt, application may be made to a Judo-e of such Court. judgnieut. ' i i >' ^ r> by or on behalf of tho primary creditor, on affidavit (l) that such judgment was recovered, and when, and that the wliole, or some part, and how much, thereof remains iinsatiK- fied, and that the deponent has reason to believe, and does believe, that some one or more parties (naming thon, or stating that he is unable to name them) is or are within tJiis Province, (m) and is or are indebted (n) to the primary debtor, for an attaching order (which such Judge is hei-eb} inent clatises of it : see Altloh v. Boomer, 2 P. R. 339. Where the assignee ot a debt not only uoglectoil to give notice of assignment, but his Attorney stood hy while an attaching order was being made, and the garnishee paid the delit to the judgment creditor, tho (Jourt relieved the garnishee : //( re Jonca, Er parte Killij, 7 0. P. 149 ; see Rules 51 to 03, inclusive, and Poi-nis 40 to 50, inclusive. (h) Where an order is applied for, and tho facts shew that the debt sought to be garnished is one of those mentioned in this section, the affidavit shoidd shew that such debt exceeds twenty -five dollars. This provision of the law was made since the framing of Form 40. (i) This does not mean wdien the right to sue accrued, but wlien the contract was made which resulted in suit. The date, and not the maturity of a note, would be tlie time when debt "contracted" under this section. (k) Tliat is, duly entered by the Clerk in the procedure liook: see notes to sec. 37, 7 li. 0. (t. 141. Before proceedings ciui be taken in Court, to wliioh tran- script may be sent under section IGl and Rule 57, the suit must first be made u judgment of that Court. {I) See Rule 51 antl P\irm No. 40. The affidavit need not be made by a)iy particular person. Contrast cap. 50, sec. 307 ; Builder v. Kerr, 7 P. R. 3'i^. (m) See notes t J section 124, and Brown v. Merrills^ 3 U. C. L. J. 31. (n) See notes to sectiou 124. ss. 128, 129.] SERVICE OF ORDER BINDS DEBT. ir>:i autliorizoil to make), to tlie effect that all debts owing (o) to the pi'iinary debtor, whether due or not due, (p) be attached to satisfy such judgment ; wliich order may be in the form ( q) mescribed by the General Rules or Orders from time to time in force relating to Division Courts. 32 V. c. 23, s. G (1). I'iH, The service (r) of such order on any garnishee shall liave the etiect (subject to the rights of other parties) of attaching and binding (s) in his hands all debts then owing from him to the primary debtor, or sutKcient thereof to satisfy such judgment, and a paynumt by the garnishee into the Court, or to the primary creditor, of the debt so iittaclied to the extent unsatisfied on such judgment, shall be a discharge to that extent of the debt owing from the garnishee to the primary debtor. 32 V. c. 23, s. 6 (2). 1*{J>, Any payment by the gaiMiishee, after service on him (t) of such order, to any one other than the primary creditor, or into (^ourt, (u) to satisfy the said judgment, Sorvic-fc tlicifiuf to bind nil dubts, etr. Gamisliec may pay in liis own discharge. Payrnciir to any bill piiiiiary (-■i-fditor void. {(}) See also notes to section 124. ( p) It is submitted that these words have substantially the same signilicatioii as the words "any debt is due or owing" in section 124; see it, and notes thereto. {(/) See Form 41. ((•) It is submitted that sc /ice of this order should, if possi1)le, be personal (see notes to section 72) ; or at least it must be siiewn that the order came to the icnowledge of the garnishee ( Ward v. Vance, '.i P. R. ]'A0 ; JAK.su/i v. Miitj- iji'n.(l'j'\ 18 V,. B. (U2 ; Ntwnuvi v. Kuok, 4 (J. B. N. S. 434)'; or tluit reasonable atteni])ts have been made and proved fruitless, an<l the Judge luvs disi)ensed witli ptTsonal service : see ToiiiHiiwn v. Goatf;/, L. H. 1 C. 1*. 231, and llules 5'2, 54 and oo, and notes to section 131 ; 10 L. J. N. S. (55. (v) Tliat is, making " all del)ts then owing " subject to the payment of anil charged with the amount of the attaching order ; llnlmcH ct at. v. Tulton, 5 ■E. & B. 80: Tillmni v. Bmwv, G Jur. N. S 11")! ; Turner v. Jonex, 1 H. & N. 878. But the garnishee is not protected unless an order to pay over i.s i)l)tained [Ih.; ,S'///.7.s' V. The BrorkvUlc and Ottawa Jiaila'at/ Co., 22 U. (J. li. 4r.!l ; Tate v. The (Jorpuration of Toronto, 10 U. C. L. J. at page 07) ; or he pay into C'ourt : CtdrerkoiiHe v. Wickeni^, L. K. 3 0. V. 25)5. A debt due by any person in thf Province served with the order would be bouml. As to sei-viee of summons under section 131, see article at page 05 of 10 L. J. N. 8. An assignment in insolvency liy the principal debtor would prevent garnishment : lie Fair and Bell, 2 Ai>p. K. (i32. (I) If service not good, the garnishee could probably pay over the money to the primary debtor with impunity : Cooper v. Brayne, 3 H. & N. 972, Amer. Kd. ; see notes to section 128. (") Payment into (^ourt is the safest course to take: Cidverhouse v. IKici'cus, L. 11. 3 C. P. 295; see remarks of VVilles, J., at page 297. Jit. t *■ ■ ' ■ ' ■ ■ iiv-w '•' : ^. ;,•'■:■:».■'?.'■•■: • •' .'.""'^•■»i •'i." '^•„'-' ',■ :.-r .'■. - ■ '^ .'•■;■ ■• ••■ '•.■''•■."<;'-'-*'*1-.- '■'■ ' **-'?<■,'.■■; .'^'i'- Si'-'. '. ■'" '■'■', '. '''."•'it'.'.-'^ -' ■■■.«.« *p- ^ ■>- • . • i - * ■ V « * iL"* • ■ • 3* £,>'•<«..,->;.■■*■■' ■ ■■'■' •J""']-'' ■•■'' ■■'.■■ ', '■ '■ -.'•.'•■ ' » 'jK- .-, •• ■ . * ■' ,v :*■■'■■:' : ■"..'^^V:: ■ •:":■•'■' ' ■ ' / ■■;';•■.:;. " • ;■•'«. 1 . v^:vS • • . *■ ' ' .1- *' . . , * *■ ''•- ,' 1 :V ..<^ •*'.". i'.'^ ■ ■':i^ ^'^•'\ t*/- 'o- ■ .->■•■* • « '. > , . ..-■:■»/.••■ ^ ■■ "• ' •', '■ ■■. . • * ,.•♦:,■,;-• ^■■r^;' *■'. ■ *" ' . . ■>* c ;■; '' '";', . '.'. -, ^■ * ..'.■>■'■■'■»-> ■ ■ ;-H ■..'.- ■y is ■■'■'■ •',• n.. •- r ^.' ■ .s •* ■' . «. .' . n-i- .•* ■ «■ ' f" •', ■■:.'>. '■•. •!'^'^'^"C .''.. ■,".» ■•*.-«.** ■' ■:.;/--''-**\0?«.. ,« ^ •• -•.■,;. "S.I .- '7V v:" "ft: ■rr -■;r , - ; .I ■ 1 ' 4 -. r<- - ft i- ,*:■; ''(''' ■^r^. '.'•^ ' * ,* ;t,f'. •It -<»' ■■'■:*■ .?1 • /. ;■■-•» ■ii'r-r **» *,-»! -• : ^w'^ 154 CUEDITOR MAY ISSUE SUMMONS. [ss. 130, 131. .iliirLisliuc, (He. shall to the extent of the pi-imuiy creditor's claim, be void ; {y) and the garnisliee sliall be liable to pay the same again, to the extent of the ])riniarj'' creditor's claim, to satisfy liis said judgment (w>). 32 V. c. 23, s. 6. (3). Primary |IJO. Wliether any such attaching order is or is not cri'ililiir in.iy '' '~ sinimioii made, the primary creditor may cause to be sued out of the Division Court for tiie Division in which the garnishee, or one or more of them, if there be joint garnishees, reside or carries on business, (*•) a summons (y/) in the form pi-escrihed by tlie Gener-al Rules or Orders, from time to time in force, relating to Division Courts, ni)on or annexed to whicli sliiill be a memorandum shewing the names of the parties as designated in tlte judgment, tlie date when, and the Court in which, it was recovered, {z) and the amount unsatisfied ; wliich summons shall be returnable either at any ordinary sittings of such Court, or at such other {a) time and place (to be named therein) as the Ju(i e may permit or appoint, either by a general order for th Usposal of sucli matters or otherwise. 32 V. c. 23, s. G (4), IJJI. A ^opy of such summons and memorandum sliall be duly served on the garnishee, (i) or, if there be joint garnisliees, (c) then on such of them as are within reacli of the piocess, (cZ) at the time and in the manner (e) required Hiiw to he .servuil, etc. {v) See Rule 58. This means " voidable :" Maxwell on Stat. 190. (w) .See the reasoning in Hiifdcji v. Voj:, L. R. 4 Ch. 92. (,>•) These words are used in the G'ind section, and the remarks made and cases cited there equally apply here; see also notes to section 72. (//) See Form 4;i (z) Should the judgment he recovered in a division other than that in ^\ liich " one or nwrr " of the garnishees "reside " or carry on business, and proceedings imder this section are desired, the judgment must he transferretl under section ]()i and rule iiT ; and then, on the judgment being fnlh/ entered in the Court of the division in which the garnishees or one or more of them reside or cany on business, all proceedings can thenceforth be entitled and taken in that Court as if originally commenced and judgment "reeoveied" there. (a) This would allow the Judge to appoint any " time and place" Avithin tlic County for the disposal of such matters. It is submitted that justice and tlic crMivenience of parties will he best served by trying such matters at regular sittings only, unless under exceptional oircumstanoes. (h) See notes to sections 72 and 128, and Rules 53, 54 and 55. (r) Such as partners in trade. (f/) That is anywhere in the Province of Ontario. {»') See uotea to sections G2, 71 aud 72, and Rules 53, 54 aud 55. s. 132.] JUDC.MEXT AT HEARING. 155 for the sorvice of snmnionso.s in ordinary suitK for corres- pondini; amounts, and also on the primary debtor, if tliouglit advisable, {/) or if required by the Judge. 32 V. c. 23, s. 6 (5). i'»i*i. At tlie hearing of the summons, or at any adjourned Jmismcnt at lieariug, on sufficient proof {;/) of tlie amount owing by the garnishee to the primary debtor, and no sufficient cause iijjpearing (h) why it should not be paid and applied in satis- tiiction of the judgment, the Judge may give judgment (i) against the garnishee (which judgment may be in tlie form (/) See notes to section 128. It is all important that the judgment debtor alioulil, if l)ossible, be served ; and it is siibniitted tliat only in the most exce))- tiDiKil cases, such as al)sence from or residence out of tlie I'rovince, .should this liu departed from. Rule 5() declares that "if the garnisliee f)r the ])rimary 'Icliti)!', Iiarimj hecii acrinf, does not a]>])ear on the return of such sunnnou.s, jiidiliiiftit 111(1.1/ hi' i/ii'en- a(/(iinfit liini bii (h'fanlf ; and if only some of the parties ret[uired to be served are served, the Judge may give the same judgment (njd'nid flicM' .s7-/vrrZ as in ordinary cases : " see also Kule i)4. At Common \Anv, every l)erson wlu)se rights are to l)e affected by any legal proceeding has a ri^ht to l)e huaid: Ahixwell on Statutes, 325; T/iorhnni \.' Buriws, L. R. 2 C. l'.~ 384 ; AV Pollard, L. R. 2 P. (J. lOG. This section and the rule of Court are an infrinue- nient of that right (Fcrniinun v. Curnum, 20 U. C. R. 2()) ; and their operation should not be extended t » .any eases but those where actual necrsnifi/ re(|uircs it. The (lel)tnr should know of the proceedings, for the jiulgment upon wliich they were founded might possibly have been satisHed l)y him years before, or liavc hecoiue ''J'ctr ; or if the <lebt liad been assigned, ami no notice given by the assignee, as he is not bound to do (Ildh'niKon v. Xish'itt, L. R. 3 C. V. 204), the pnieeeding wouhl lead to a great deal of trouble, if not injustice. On this iiuestiou we cannot do better than (juote the words of a writer in the Tiaw .Journal. " We think * * * that a Judge could not, for any reason of sucli mere convenience of the creditor ami garnishee, dispense with service, but sliould insist on its ))eing made in every case which requires personal service in ordinary cases, «/^>rar(!«v6/^/«:" 10 L. J. N. S. (i"), 0(5. Attempts should at least he inaile to serve the jiarty, and evidence of these presented to the Judge. "Whether or not the efforts made to serve the defendant are reasonahly suffi- cient, must in all cases be matter for the discretion of the Judge:" Toiiilhisou V. Gnatljt, L. I'. 1 C. P. page 231, pfr JOrle, C. J. In that case the process- server had called twice at tlie defendant's oliice, and once Ity ajijiointment of hi.s clerk, at nonci of which times was the defendant in; but nothing was said to the clerk of the purpose of the process-server. Willes, J., appeared to think it insulticient to warrant ulterior i)roceedings : page 232. It Mill be observed that the Judge can only give judgment " by default " where the garnishee or primary debtor Ihh^ hccii scrrcd. If service has been "<lispensed with" under section 134 and Rule 04, and this section, it is sub- mitted the liability of the primary debtor and garnishee must be established by evidence. (,'/) See notes to section 131. (/() That is, no question arising which tlie Judge has to try. (() If debt assigned, and no notice given by assignee, costs would not be given him: Orantv. AlcDonmll, 39 U. C. R. 412. •,• .-V. j-'v .»,' t*<>'.'.. ..■■■-.'. , < . . -' .;,»»■.: . tf . »,■. , . -^ *". •• » - . ••« '■'■■■'• "■■ '* ..■•■\ -■:-,. "■♦■•. • . ■: it ■'''■ .■:,'*^/.:-..':*- v; .'• ■••^•.i^.v^ -,•,••■ ^ c :<'i .5>' ■■.+.■■•.'■11 ..:.>v:i'":4v..,'-:!| ■•• 'A'-'-r-M-^ -v- ■? ■ . «'•'..? V t. •••V ■ ..- • •,•!<''■'• »-w.r ■■'•■. •'. ' ■ ^,.'^:^-y. ;■• 1 .% V 1- -:>'''> .■ ■ £ ■/ 'V. .'.. % ) ' A V '* - «'r,'-' :. '■ .'■.■;\. -.>/'-,■•■■ *! l';""'.';v''.^- ' 'w.j-'^'' -■.■.v^^^"' ■■ I ■ ■ H ■•-.'.,.-.-^',*'..'-r-.. ■ , -..;;:.-?-.-^'.vf.*-A^t, ■' V; ■> --*'JM"^ '^K' "* ■,■.•' ••.'»-''itV» - ef ;> 'i"': 'i'v f : • .*«:'' "'; ^m .<' r ' r*; r.' ■■ ■ ■« ', :' *,; »-. » ;•" ■■.-■•^,.,;i» ,.-■■.■;:' ,<i..r- ■■■•.» ■:^.- ..ji,"' . . •■■■ ■ i. . ■'■ I: ' • . - '■.-"'■ i^^. '»Ti' •'.•:,t'';t'!li!i ■- ■ -it 1» . I« j.p li'- .V'*:. I''>6 WHERE CLAIM NOT A JUDGMENT. [ss. 133, 1.31. (/.;) prescribod hy tlie General Kules or Orders from tiiiK; td time ill force relating to Divi.sion Courts), for the amount so owing (I) from him, or sufficient thereof to satisfy tlic judgment (m); and execution against the garnishee to hn y tlie same, may issue thereon as of course, if due, or when nud as it becomes due, (ti) or at such later })eriod as the JudiLtt' may order, which execution may be according to the torin (o) prescribed as aforesaid. 32 V. c. 23, s. 6 (6), WlIEKE THE PlUMARY CrEDITOR's ClAIM NOT A JuDGMKNT. tliti. Where judgment has not been recovered for tlic claim (p) of the primary creditor, he may cause a suniiuoiis Whore no ,iti(iK"ieiit, suniiiiiiii.s oil Ac, to issue, to be issued out of the Division Court of the Division in which the garnishee, or one or more of them, if there be joint garnishees, live or carry on business, (q) in the form prescribed by the General Rules or Orders from time to time in force relating to Division Courts upon or annexed to whicli shall be a memorandum, shewing the names of the }»rimary creditor, the jjiimary debtor, and of the garnishee, and the [)articulars of the claim of the primary creditor, with reasonable certainty and detail; which summons sluill be returnable, as required by section one hundred and thirty of this Act, in respect to the summonses therein luentioiuMJ. 32 V. c. 23, s. 7 (1). ^ Service tlicreof. 1S4. A copy of such summons and memorandum shall be duly served on the garnishee, or if there be joint garnishees, thea ou such of them as are within reach of the process, at the time and in the manner required for service in ordinary >-' .r- .:'*■■ ? ik) See Form 45. (/) The Legislature here clearly intended to use no uncertain expression, but einploj'ed a word meaning a debt puM due. or matimiig. {m) This would include the costs of recovering the judgment, and whicli form part of it ; but would not, it is submitted, cover the costs of garnishment pro- ticedings as well, even sliould there be enough in the garnishee's hands to pay them : see also seeti<in i;^5. (h) The order went in this form in 2'oj;p v. Jones, L. R. 10, Q. B. 591. (o) See Form 8G. (p) That is, a " debt or money demand," as mentioned in section 124. i<j) See notes to sections 62 aud 130. -^ ^i^ CiiLv^t M r. Clu- ^j 'Wr "■VY Cu^tlc^c^^^^c >uri <-c< ' ) 4- ■ :M- ss, 135, 13G.] DECISION or TIIR JITDGE, 157 (MMPS ; niid alno, if pi'iicticable, on the primary dobtor, unless tlic Jiulgc for HtilHcient reason dispenses therewith (r). 32 V. c. 23, 8. 7 (2). |!t5. If in such case the pi-iniary debtor has been duly '^'"^'f"',['"* '" •fi'vi'd («) witli a coj)y of such suriuuouH and riifiiioniuduin, jiidifment (in the usiud form in other cases) may be given ;i,Miiist him at the hearing for the primary creditor, for the whole, or such part of the claim as is sufficiently proved, (t) and execution may afterwards issue thereon as in other cases ; and wliether such judgment is or is not given, (,v) tlie Judge, oa sufficient proof (v) of the debt due and owing f»'om the ))rimary debtor, and also of the amount owing to him from the i,'arnishee, may tlien, or at any adjourned hearing, give jiulniuent against tlie garnisliee (which may bo according to t!n' form prescribed (to) as aforesaid; for the amount so found ilue (.r) from the garnishee, to the extent of the amount so found due from the primary debtor, which sum the garnisliee sliiiU pay into Court, or to tlio jirimary creditor, towards the satisfaction of such claim, or in default thereof, execution may issue to levy the same forthwith, or at such later period as the Judge may direct, which execution may be according to the form prescribed as aforesaid. 32 V. c. 23, s. 7 (3). i."k I t.'/V i •'•.,■•'•-■; tf-if ■ ^■V:,' .'■ ■■•■ ■■ ■^•. ■• ■ . V ■ -. t ••■ -* ,. •^•<i»; N'r. ■■•... >.' «.,'■ i *v • • • I '• • .* ■ •. ' General Provisions. 130. In all cases under this Act, and wliether the claim Aiipartie-i of the primary creditor is or is not a judgment, the primary may show (It'btor, the gai'nisliee, and all other parties in any way (r) The not«3 to section 1.31 apply to this ; see also notes to sections 62 aud 72. ("■) See notes to sections 131 and 134. (0 Advantage can of course be taken of Rule 56. ('/) Tlie adjudication against the primary debtor and garnishee need not be made at the same time, nor embraced in the one order, ])ut it frequently is so : sue Victoria Mutual Insurance Co. v. Bethune et al., 1 App. 11. 434, and notes to tlie tariff. (r)8eeRule56. («•) See Form 46. (j;) This only refers to the debt, and would not include the amount of credi- tor's costs if enough also to meet them in the hands of the garnishee. The judgmeut is final and concluaive: p^r' Moss, J., at pages 431, 433 and 434 of 1 App. R. ■„,•-;-.»•■ "-; k,.-. ■'*■• ■- • ■.",•■.«.•'' '*» - ' ■- ; ■•'■ 158 STATUTORY DEFENCES. [8. VMl - ■ ■* ■-'•■•.'•■* ..< , '■,■ .■*■■:■* ..,*■ - ^' " , '■ ■.■■if f.-l^.*- .*■«'■•• ... : ■;'--,:^;'!tfi.v^.,.-; . ..' " .^■■' ■•^' . ^['^ '"' s • "■!£" - ..at •" ■•* .•' -* ■■ : .-' ''ll'"' f ■".■ '• Notice l)f •stiitiitiiry 'IcIVlii't'. intei'OHted (//) in, or to ho. afrcctod by, tliG proccodin'j, sliali be entitled to set up uny defenee, us btstweeu tbe pi'iniaiy creditor iind the lU'iiiiiiry delttor, (z) wliieh the latter would be entitled to s(!t Ufi in iin ordinary suit, and also any sucti d(^fence as between the <fariushee and tlie priuiaiy delitor. and may also show any other just cause (a) why the dclit sought to be jL!;arnished sliould not bo paid over or apjtlicd in or towards the satisfaction of the claim of the priniaiy creditor. 2. Notice of any statutory defence (b) shall be given to the jniniary creditor ai, the time and in tlie manner required (//) Tliis ia tliu prinoij)lo of section '2[) of cluvptcr ]'2(J of 2.S & 24 Victoria oi Enulaiul, tile want of wliicli was so long felt in the Superitn" Courts here {Kin V. Fiillarli'ti, 8 U. ('. L. .1. 'l-l'l; Chapman v. Sli</>/i<-r(l, H U. C. L, ,J. 27;'); S/>,„nr V. Coiilci/, '20 ('. V. 274); hut wliich has been lately remedied l)y Statute: sec also Virlorki Mutual Fur Jii.siiraiicc Co. v. Bclhanc, 1 App. 11. A'l'A, {z) The Courts have tried to carry out this equitivhle principle: Hchkc v. Btiflalo, Brantr'onl ami Oof/i'rir/i A'ailimii/ Cu., 3Uth March, 1877, per liobinsoii, V- J., and jS'c(ll('!/ v. Saiti'i (/cfiiH/aii/s, li U. C. L. J. HI. (a) Tliis, it is suhniitted, means either of a legal or e({uitable nature ; Hirsfh V. C'aate-i, 18 C, B. 7o7. An e(piita!)le assignment would prevent garnisliiiKut {Lut!<rli<'r \. The C'oitiptoir IfEscuiiiptr dc Pariti, 1 Q. B. 1). 709; Jii re Irnnij, E.i'parli' Bn-tf, 7 Cb. i). 419), or even the assignment of part oi a debt : Ihin \. Banii'i.sti r, .*} Q. B. D. 51)9; see also Bruwii v. McC/i(fin, 5 V. K. 231 ; MrKi'ir.it V. Moiilrcal awl Ottawa Junction Bailwai/ Co., 27 C. P. 224; Fourier v. {''ail. '21 C. P. 417; Podina.stcr-Ocntral v. Rohtrtson, 41 U. C. R. 37i); Robinwu v. jSeHhltt, L. II. 3 C. P. 204; Emanuel \. Brldiiar, L. R. 9 Q. B. 28G; Lanthv. SutJarland, 37 U. C. R. 143. (/,') The Statute of Limitations is one of the most usual of statutory defences under the 92nd as well as this section. The Statute commences to run when the right to bring an action has accrued (CoioUi v. Buckle., 8 M. & W. 080), iind stops on the issue of tlie summons and during its currency: Tnrlci/ v. WlHiiun- lion, 15 C. P. 538, and Rule 127. The fraudulent concealment by the defendant of the plaintifl's right of action does not prevent the statute running: Inipinul G'an Co. V. London Gan Co., 10 Ex, 39. If a cause of action accrues after the death of a creditor, the statute only commences to run on tlie appointment of an executor or administrator ; but it is otherwise if it accrues before doiitli ; Grant v. McDonald, 8 (irant, 4()8. If the statute commences to rim, subseciiiuiit disability does not stop it: lihoden v. Sniethurst, M. & W. 351. For liiiiitii- tion of ditferent kinds of action, see caps. 01 & 117 of Rev. Stat. In ordinary acticms on simple contract or tort the limit is six years, and on specaliticf; twenty years ; Rev. Stat. pp. 773 and 1121. The timeis reckoned exclusively of the day on which the cause of action arose : Freeman v. Read, 4 B. & S. p. 183. Eor the piu"i)oses of the statute the date of the summons cannot be contradicted: Whipple v. Manleij, 1 M. & W. 432. Foreign Statutes of Ijimitation whicli Imr the remedy only have no force here : Harris v. Qulne, L, R. 4 Q. B. 053. An action for calls in a company incorporated by Act of Parliament could be brought within twenty years: Cork and Bandon Railicaij Co. v. Goodc, 13 C. B. 820 ; Buck v. Rohson, L. R. 10 Fq. 029 Where money is lent by cheque, the statute only begins to luii '^ii payment by the banker: Garden v, Bruce, L. K. 13G.] STATUTE OF LIMITATIONS. 159 ill respect to such notice in ordinary cases. 32 V. c. 23, V ;!('. r. '{00. Wlu'ii 11 Mil is not (\ciH!))to(l, tlu' atatiitc lidlilcr gives iiotici! to tiio tlniwer: Whitiltiatl \. ]\'<ilk(i mis from the time tlic !» M. k W. .-)()!). 'I'Ir. stiitntL' only comnioncea to run ai,'ainst ivii accomniodation inakfr, acceptor or iuildiser, suing his jirin ipal for money jiaid, from tlic time ho pays tlu; money; Au'jrnir V. Tiji/irff, 11 K. T. N. S, 70S. The statute begins to I'un itimu'iliiitely nil a note jiayalile tin demand {Noitnii v. h'/ltnn, '2 M. it W. 4t)l|: l»ut if pay- iilik' so many days or montlis after demand, it lii'gins to lain only after tliat inimlier of days or months has expired after demaiid : 'J'/mrpi' v. Boaih, \l. Ik M. ;W8. So if a note is payahle after sight, the statute does not eommenee to niu until presentment: llnlnu-x v. Kerriion, 2 'J'aunt. ''V2'.i. The statute ruim (III money lent to a liaidver from the deposit: J'u// v. C/cin/, Ki M. iV; W. ',i'2l. Tiic contract of an Attorney to conduct a suit is entire; so that if the suit has tiuicil within six years of action brought, the Attorney is entitled to recover fur all business done in the suit (//(r/vw v. (Jniiii-, L. !». 4 (^, l>. i'l't'A; see also Li'jir.i V. I)nir!<i)n, 'A'l U. ( '. W. 'I'.Vi) ; the reason lieing that the Attorney cannot sue for costs during the pendency of the suit, although he may refuse to proceed fdfwaut of disbursements: Wli'itilicddv. Lvnl, 7 Ex. (»!H. An a(d^no\vledgment in writing or i)art payment '"evives the debt: see Itoscoe, ()4,'{, ()4r). The writing must be unconditional; or, if conditional, the ])laintiH' must shew per- foi'iuance of it: Alci/ciiioif'v. Fi'iclilh'h, H (J. 1', 1). .SoH ; Itoscoe, (i.l'J. A promise ill tiiese words is a sullicient acknowledgment: " I will try to pay you a little ;it a time if you Mill let me. I am sure that 1 am anxious to get out of your (lulit. I will endeavour to send you a little next week : " Ijir \. WUinnf, L. 11. 1 Ex. 3(54. A letter written "without jirejudice" is not sulHcient : /// r<' Jiivcr Siciiiiirr Co., Mitchcir'i (Jlnlin, L. K. (> C'li. S'2'2. A recjuest for the creditor to seiiil in his account was hchi a sutticient acknowledgment: (Jdlnrci/ v. Slidrpf, 1 l']x. ]). 7'2. So also where it was coupled with a further rc(|uest for voucliers: Sh'it V. Lhulmii, 2 J'lx. I). 314. Part pdi/iii'ii'.— This has always liecu held an acknowledgment of the existence of the debt: iloscoe, Mi^. The payment must be made on account of the debt sued for: JLon/ait v. Iiow/ands, L. R. 7 Q. B. 41)3, and eases cited. Payment of interest does not necessai'ily revive the principal del it, but a pro- ini.sc to pay same may be thereby inferred: L. H. 7 Q. B. p'. 4!)8. If there are twd debts, and a payment is made generally, it is for the Judge, or, if a jury, for tiiuiu to say whether or not there is a payment ou each of them: Walh'rw Uiitli-r, G E. & B. oOG. The creditor cannot, without the debtor's knowledge or assent, apjiropriate a payment to any particular del)t to take it out of the statute; but it ought prima farlf to be taken as paid on the debt not barretl : Nayh V. Hud(/wn, 25 L. J. Ch. 18G, per Lord Cramworth. The payment may he by bill or note (Turneji v. DodwcU, 3 E. & B. 13G) ; and it operates from the (k'livory, and not the falling due of the bill: Irchnj v. Viitrh, 3 M. & W. JK). It is not necessary that money shouM pass if the transaction amounts to pay- ment: Maher v. 'MnJun; L. E. 2 Ex. 153; 7/y«.sr v. Jlome, 24 C. P. o2(). If a payment of part is made as the whole amount due, it does not take the rest of the claim out of the statute : Wauijh v. Cope, G M. & W. 824. A payment made by a third person on account of the debtor to the creditor cannot be ajipropriated by the latter so as to bar the statute: Waller v. Lanj, I M. & i\. 54. ]*art payment can be proved by the oral admission of the defendant {Vlcnve V. Joiic--!, () Ex. 573), or by his answer in Chancery: Baildon v. Walton, 1 Ex. C17. While a payment is made by one of two joint debtors, with the knowledge and consent of the other, the operation of the statute in favour of the latter is not prevented: Jarkton v. Wool If tf, 8 E. & B. 783. As to acknowledgmenta which have been held sufficient, see Boiirdin v. Greenwood, L. 11. 13 Eq. 281 ; Vhamiiorc v. Turmr, L. R. 10 Q. B. 500; Pookv. Foole, L. E,. 7 Ch. 17; ■■ ■'■ *. }■ ' T *■ . > ', . .' >■,;.'-■ -■ ^t '."'•" . I ' i ■- '* ■ . .' ' , >' -M. :'*■"■. **• "■ ■ ,• ". '' ' ■• .' ! / ■''■ ■ .■if'ik -'^•ii ■ >' ; < m ,. / *.. ''l f'"-:-V- ■ * ■* .V--" ' ",- '' 1 rr^[ : -i ^m. '■■.'^^■ ■ i' ' ^:i. *; A'' ■ • '/ J' ♦ . . • t ' »> • • • •< •'„ » ^■■./ • p ' « <y^^ ■ .■•• . <■* ■. , > ^, '"* '■ %■ ■ ,-. .-•>..:.•■ ■'.■■■ •,- ■'•.■•• T, ■ ; ,-,/r . •• If. .• : • ■i '^y -. r ;.>.»-■ ,.{■,,'•■.■■.. • ■■•".i-w-v^;:^-.---:/.! •> ••' V. •■.->:■ "-^' • CO ■ • • • '■!l.''.:''-4 I ... -4 .r - . , f ■.,<- ,, v:^'.J/>Jsv^-; SFJivrrK TO niNP oKnTs. [h. 137_ UH, III ill! casoH uiulor tliis Act (oxcppt wiicrc ;ni .SlTViCO (if Miitiiiiiiiis (in UnVu'bt'^' ''ittiiciiin«,' order liiis been served, iihvudy ])rovidod fur), scr- vico of tlie suininoiis on the <j;fii'iilslu;o sliall Imve, the cfloct until of attiiclan*,' and hiiidiiiLf (v) in hi.s hands (suhjeet to tlic riglits of other parties) the (h;l)t soiiLfht to ])e j,'ai'nished, frun. the time of siicli serviee until a final decision {d) made on the hearin",' of snch summons ; and any payment of .such debt by the garnishee during such period, to any one oliicr than the primary creditor, or into Court («) for satisfyinir his claim sliall, to the extent of such claim, be void, (/ ) and the garnishee sliall be liable to j)ay the same again to tlic extent of such claim, to satisfy the same, unless the Judge otherwise orders {(j). 32 V. c. }'i, s. 9. J{<isc'()c's N. V. 049. And as to siieh as have l)eoii held insufFicient, see Iioscoc, (550, and cases there cited ; and J^ol). & Jos. Digest, 2153. The acknowledginont may be made by the party or his agent, " didy authorized:" JJev. Stat. ca[), 117, sec. 1. An admission by a bankrupt iu his hahuice slieet will not take tlio del)t out of the statute: Ex parte Tuj)/ni>i/, 12 L. T. N. S. 787. 'J"he better opinion seems to be that an admission to a stranger is insufKcient: IJoscoe, ()48; Er parte TnppiiKj, mijira. But see Add. on Con. 7th Ed. 303. An unstaiii|n'il note cannot be used as an acknowledgment: McKaji v. Orhilci/, 30 U. C. I!. 'A. On the suljject generally of " Limitation of Actions," see Hob. & Jos. Digest, 2121, 2172; Fisher's Digest, 5473; L R. Digest, 1(541; Add. on (Jon. 7tli VA. 2!)4, 30i>; llev. 8tat. caps. (51 & 117; lloscoe's N. P. 739, (553. In cipiity tlie Statute of Limitations need not be jjleaded, but the Statute of Frauds must: Dawk'uis V. Lord Peiir/iijn, 4 App. Cas. H. L. 51. (c) See notes to section 128. (d) When the Judge fulli/ decides the matter, the "attaching and binding" shall be at an end, unless under section 138, when judgment is given against the garnishee: see Jh/lhonm' v. MtUor, 4 H. & N. 116. (/') The safest course is to pay the amount into Court : Siikcn v. The. BrockvUk and Ottmoa Railway Co. . 22 U. C. K. 459, and Culverhonse v. Wkkens, L. 11. 3 C. P. 295. (/ ) "It has been said that when a statute not only declares a contract void, but imposes a penalty for making it, it is not voidable merely. In general, however, it would seem that where the enactment has relation only to the benetit of particular persons, the word ' void ' would be understood as ' voidable ' only at the election of the persons for whose protection the enactment was nuulu, and who are capable of i)rotecting themselves ; but that when it relates to persons not capable of protecting themselves, or when it has some object of public policy in view, whix?h requires the strict construction, the word receives its natural full force and eifect:" Maxwell on Statutes, 190. By Rule 58, it is declared that " no payment shall be made by a garnishee to a primary creditor before judgment given against the primary debtor," except on order of the •Judge. {(j) This a Judge would probably do if the primary creditor had, either by bis words or acts, assented to the payment by the garnishee to any other than him- self of the moneys garnished : In re Jones Exj7arte Kelly, 7 C. P. 149 ; Free- mofn V. Cooke, 2 Ex. 654 ; Johnson v. Credit Lyonnaia Co., 3 C. P. D. page 40 ; SS. 1 "0-1 to.] r.AnNISFIEK NOT LIAHLK Full COSTS. Ifil UJK. It' jiKliimont l»o jLfivoii fi)r tho rtritnjirv creditor ,"",',"'^','''', ;)i.';iiiist tl- ) j^'jiniislit'e, tlici dcfht ^'.iriiishcil sliull, iinlcss tho ,)ii(1l;i' (itluirwisti orders, coiitiinw! l)oini(l (h) in the liiiiids of flu* i,'iiriiisli('(* to satisfy tiuM hiiin of (Ik; |)i'iiiiMi'y creditor; ;iiiil na}Mneut in such ciise hy tho jfurnLshcc of such dcl)t to tlic extent of sueli chiini, (jitlu^r into Court or U tho primary t;roilitor, sliall, to that extent, he a disehar<,'e (/) to tho gar- nislxH', as htitweiMi iiiui and tlio ju-imary thditor; and any )»iiViiitMit ther(!of, otherwise! tlian last aforesaid, except liy h'ave of tlio Judi,'e, sliall bo void (/;) ; and tlu; gar- nishei! in such case shall hv, liable to pay the sanu> a^'aiti to satisfy tlie claim of tlie primary creditor. 32 V. c. 23, .s. 10. II5!K The gaj-nishoo shall not bo liable fur tiie costs of c'osts. tiic proceeding, (/) unless and in so far onl-. as oc( asioued by setting up a defence, which ho kuesv, ui ought ti lia.vo k'l'H' ; , (//i) was untenal)le ; and, s>ibject to this provision, the costs of all parties shall bo in tho discrt tion of the Jii(li,'e. 32 V. c. 23, a. 11. 140. dudguient shall not bo given cither against the Smiiaions pvuuary (((ibtor or tlie garnisnee until thv; said smuinoiis and ininiii.ii of niciiioranduin, with an artidavit of the due service of both to iio lii.-ii oil the })ro[)er ])arties, are filed, {n) unless the Judge fur special reasons orders otherwise. 32 V. c. 23, s. 12. ' Di' lh(t.tche V. Alt, 8 Ch. D. 286 ; In re liahia and San l<^rancinco Jfail.way Co., h. I!. .'{ (i. \i. 584, anil that class of cases. {/() Suo notes to section 128. (/•) Sue Wood V. Dunn, L. R. 2 Q. B. 73 ; Bncfi v. Banmdo; 3 Q. B. D. 565). (/,') See notes to section 137- (/) This is only declaratory: Bank of Montreal \. Yarrinuton, 3 U. C. L. ,1. 18"). If it becomes necessary to issue execution against tlie gariiisliee, he be- ooiiies liable for the costs of it, and tho Bailiff's fees thereon : Kule 61. [m] l']ach case must depend on its own circumstances. Tiie expression is a pcciiliav one, and no definite meaning can be given to it. It is submitted that if, in tlie opinion of a reasonable minded iiiiui, and one of ordinary iutellij^ence, a (leffiice should not liave been set up, it would be v itliin this part of the section, •■Hid costs wouhl be imposed : see Maxwell on Statutes, 100, 104. (n) The alHJavit should be entitled in the Court and cause, and otherwise a'"cording to Rule 133: see notes to section 76. It should shew that botli the primary debtor and garnishee were served aud how : see Rule 53, and notes to sectioi! 72 ; see 10 L. J. N. S. 60. 11 A It;.- ■.'» ■■ "••*'■■■♦ ;^?.»'-*»' . y. >•- ■■'^ ...' ' i: /v' • * '. . ••...•■>,•'■ - ^" '■' •■ A" r » * ik - ■ *■}■ * < *T '.■»■ '/^^:i' • ,.••• ..„■•- iSP-ii •.'•"'••■ w''/.'-^ * . - >■ ■ .» Vf.--. - ■ '■> , w^^ mm ?^y^;c^ .', 1G2 WHEN EXECUTION MAY ISSUE. [sS. 141-143. V'V -■. ♦•!■ ' ' ■ ' ■■■'■■ ■ ,.■,.,*»■*■ .. ' ■• ■■ '' /•:t "■■'■■ ;. •".";;■■■■• ■; * ■. - ■• ;■ ■.<'r-!..( t. V-; ■'■•^■; ■^- 1* „" "> f'„ " . 'rj 1-' ■■•■■;/' . >■ - - '* ■y^^ •r. ""fi'A t' .CB- ■t^4 ■.^ -'.:»l^^ru •"*» ,i,.. • . jr.- *.>' 5;-;.^: '■4'! No execu- ti'in, till 141, No ''xecntion shall in any case issue to levy tlic Kiiiiiisii.'d's money owing from any ganiisliee until, and .so far only us such money has become fully ilue. (o) 32 V. c. 23, s. 13. APiiiication 14''i. Any party entitled to or interested in anv nionov to (liacliiirge J I J ^ J J iicbi fioiji or debt attached or bound in the hands of the garnishee 1>v attuclinient. , , o , a proceeding under this Act, may, at any time before actuiii payment {p) thereof by the garnialice, fvpply to the Judge ((f) for an order (wliich the Judge is hereby uuthorize'd to make), to the effect that such money or debt be diselmvged from the claim of the primary creditor ; and thenceforth sucli money or debt shall caase to be attached or bound for such claim ; and such an ap])licii.tion and such an order may also be made, if the Judge thinks fit, after such money or debt has been paiu over by the garnishee, in vi^hich case all partie.s shall be remitted to their original rights inros]»ect thereto, except as against the ganiisliee iiaving alh^ady paid such debt or money, whose payment shall not be ail'ecteil thereby, but shall be and remain an effectual discharge to him. (r) 32 V. c. 23, s. 14. 14J{. If the Judge, on the lieai-ing of any summons undor this Act; or on special apiilication for the purpose, thinks proper, he may, before giving judgment against the garnishee, or at any time before actual payment by the garnishee, ordtM- such security (s) to be given as may be approved by himself security from primary (M'l'Uilur. ('() The decision in Tnpp v. Jonp-t, L. R. 10 Q. B. 501, was substantially tlu' aanij umler the (Ust .seotion of the lOnglisli C. h. P. Act of IS.lt. (/)) "I see no reason why a payment in goods may not be as good as a pay meat in money:" p'/* Bollaud, B., in (Jaitnan v. Wood, '2 M. & W". 470. '"It mav lie in money or money's worth:" per Parke, B., at paL^e -KJ!) ; see also WiU.'nH V. Cn^ii'if, 7 T. H. 713. Or a baiikdraft : (Jahn' v. Voiiffon, 1 H. .t V. 701. Or che(iue : ffopkiiin v. Ware, li. R. 4 Ex. 2(W. The eases of WhUdimnv V. Maalouvll el <(/., C. P. 547 ; Bmcdlrt H af. v. VanAlhn ct af., 1 7 IJ. (*. II. '2:U; J<:/f:!n:iti>n.< Cusc, L. R. 2 Oh. 511 ; and C!el,md'n ihm-, fii re Mftr'ip'ilUnn l*id)lic ('(irridiji- (iiid /i''pu.-iitori/ Co., L. R. 14 Eq. 3S7, are cleaidy (listiagui^halll^; from the foregoing authnritie- on the question of payment: see also lloscoe's N. 1'.. l.'Jth I'jd., and A(ld. on Oontracts, title, "Payment;" Fis he r'.s Digest, 0;{S3 ; Rob. iNc Jos. Digest, 27 J 5. (q) As to the mode of application see Rule 59. (;•) See Wood v. Dunn, L. R. 2 Q. B. 73; Gtdverhouse v. Wickenf, L. R. .'IC P. 2!t5. [s) This is for the protection of the garnishee, and Avas prolialdy insortrd in the statute of 181)8 Git, to get over the difficulty, suggested by the decision of Wood V. Dunn in the Court below : L. R. 1 Q. B. 77. r,.:-r,,- . ' 'H • .. c- U4.] WIIEUE ADVERSE CLAIMS. 1G3 -. •■■«'•■.::■ or the Clerk, by or on l)eliiilf of the primary creditor, for the repayment into Court to abithi the Judge's order, in case a Judge's order is made for such rei)ayment ; 2. Huch bond (/) sliall be to tlie Clerk by his name of office, and shall enure for the benefit of all parties interested in or entitled to the money, and may by order of the Judge, (h,) and on such terms as to indemnity against costs and otherwise as he may impose, be sued in the name of the (Herk of the Couj-t for the time being, for the benefit of the party entitled. 32 V. c. 2?,, s. 15 (1). 144. lu case any one other than the primaiy creditor or C;isesof |irhmuy debtor claims to bo entitled to the debt owing from 'cUiUnT till' garnishee, by assignment thereof (/») or otliiu'wise, the Jiiilge, when adjudicating in any of the cases aforesaid, or liy CiUling the proper parties before him by summons for the purpose, may enquire into and decide ui)on such claim, and limy allow or give effect to it, or may hold it void as against the primaiy creditor for being a fraud u{»on creditors, (w) nr otlierwise, as the justice of the case may re?Juire; and for such purpose he may re(pure the attendance of such i)arties and such witnesses (tlu'ir conduct money being fii>st paid) (.);) as he may think necessary. 32 V. c. 23, s. 15 (2). {tj As to the requisites of this bond, see Rule (50 and its Form ; Form Nf>. (47 a). ill) Tin; Judge must (ii'st make order for suit to be l)r(iuglit ; see Sfupf \ M'rIUrnm H nL, 35 IJ. C. 11. '2'2 ; /fn/ilan v. Siu!f/i, 25 C. P. 349. ii') Sliiiuld the legal or cMjuitablc riglit to the debt be assigned before garnisli- tiKUt, «uch assignment would prevail : f/ir.-'ch v. Contex, 18 C B. 757 ; (Jra/tf V. MrhoiKlh 39 II. (-. K. 4I'_'; Brirr v. Jtainii.^hr, 3 Q. H. i). 'M); and contrast ''')h,')t V. JIdh', 3 Q. H. I). 371. Jn tlic late ease of /iiir/c v. 7,Vm(w, 3 Q. B. 1). t'iSO, it was lii'lil that these words use, I in s, letter, " 1 hereby assign to Messrs. li. it Son the sum of £40, now dtie. or that may hereafter com" due, in respect I if the steam launch which J an; liuilding for you," constituted an assignnu'iit of the delit, and not a mere order fur the payment of money. The ease of Kr pit.rte Shrlliinl, l>. II. 17 Kq. 109, is much shak'.Mi l)y the antliority of Bkc/.- v. /.'n'l.'^oii. .\s to tlie etl'ect of tiie previous as^ifinnient of debt on garnishment proceedini^s, in addition to eases above referred to, and tiiose cited in the reports of tliem, ve refer to l{(d). & Jos. Digest, 2ti(» ; Fisher's Digest, 3(57 9178 ; L. R. Digest, 2(17. .\s to what is ati etpiitable assignment, of a debt, see Ni/a// v. I'owlex, '.'Wliitc&Tudor's b. ('. 4th F<1. 770,' 823 ; F<irifii/inr v. ('if,/ '<>/ Tnrouio, 12 'irant, 18!! ; L. R. Di ,est, 1 1'22 ; see also notes to sections 124 and 1,S(). (*") For the authorities on the subject of fraud on creditors, we refer to Kerr m Fraud, 144-157; L. R. Dij est, '957; Rob. & Jos. Digest, 15S4, and titlcH there mentioned ; .Snell's Mipiity ; Kisher's Digest, 940 and 30)3: Add. on (lint. 7th Kd. 199 ; and Leake on C mt., title, " Fraud on (Jreditors." (x) The same fees would he allowable as t'^ a wituesa : see the Tariff. y^ ''.-■'■' :■■■':■:. ■ .: ■ ■ I ■ t ^•■■, .s-...-'-:- .- «.■ I v.- ..''i- ■ ' ■• -V ,' ■ -'- • •^■.■'^.-•••?.^.^; . ■.»..».. . •, ., :■■.-■: * , ■ •': . ,' :.*• :. -• '■ o'^V /:?.'.•'■;■.■„ ^iv;-^'- ■-•»>-.! ■,.■,•• ■ '■• ^- »i •■"•f-V.-."'',,' ■ ■ ,j «•■■'. '.<?•, ,vi. v* •! • •,- >.■■;■■ >iv: ,« •.,-■' ,■ y ■', .-• >A • , ... . : ■ ,' •.; .., ..'■■ - • - ■■'■'■ ^. «■:•-■ . i •• . •>..,».>», ;■■:•; ■;\: •, ■A.. *4\. r.' ■•»•■ •■- . w V ■ '■ ■■ ' ^'■■"■■''';^.^^^--.v,*'l ■ ■ i. t 1 fc ■ . .> • ' ' . ; ^■<.1*£" :-n ' - > ■*>•.. .' ' * ■. :*■ •" ..■. .. ' ^ . •* '■ .'' ]■■ *'■ I ■:-^/-. *•%- ' i'-:i/"' 'f • 4 ;r ■ v--*.. i.-'" ■ . ' '*'"* *f;i. •>. -• » . \^' • • *' ■" "^.:fc•■i^•;■• ■,y-^i .si- ■ »;.*-♦■' 'i > ■''•;.■ ' "-■„•' ■>'.'■'., .:•' ■■V 5\ ■' ''«.;:'•'"■■'- ' - 1 * *,* --^ ... .'• . ■ • " *'• .•■. ' ■''''''li^'MI^^-- • "1;- ™ ■ .*.» '';* ■jT'^.- iei JUDGE MAY ADJOURN PROOEEDTNOS. [sS. 145-147. v. '' -- ■ -■.,<■'-■"' -ti ■ ■■ • ((llif .-:.?5- .r: ■'-■."-;■ < '*;'■■" ■- . , ■ I'f ■ ''■■I t --J -' -.- - ■*• .iiidwinay 14J». The Judijo mav postpone or arlionrn from timn to oraii.jimni timo, (//) the hefiriuji: find other proceeilinsjs in all gariiishoe prnceedmgs. ^■" ... . . cases, to allow time for giving omitteil notices of defenoe. or to produce further evidence, or for any other pui'j>o.se; and may require service on, and notice to, other or iulditioual ]>arties, and may prescribe and devise forms for any proceed- ing, and may amend all .summonses, memoranda, claims, accounts, notices and other papers and ))roceedings, mid copies thereof, as justice may require (;:;). 32 V. c. 2;'), s. 10. Debt attach- j 4(» Tlie Clerks of the several Division Courts shall ment book. keep in their res|>ective offices a Debt Attachment Book, according to the form prescribed by the General Rules or Orders from time to time in force relating to Division Courts, in which shall be correctly entered the names of ))arties, the dates, statements, amounts and other (a) j)roceedings under this Act, as indicated by the said f(n'm, and co[)ies of any entries made therein may be taken by any one on application free of charge. 32 V. c. 23, s. 20. ■•^^:'^^M it: ■■■**■';>':•' . ■ "t- - AKBITR.\TIOX. Judso 141. The Judge mav, in any case, with the consent of may order . \ . (Miisp in be both i)artics (h) to tiie suit, or of th' ir agents, order the same. nilcnnl to ^ ^ , y . ,? ' arbitration, with or Without other matters in dispute iHjtween such (»/) As often lis he pleases : see NcUkoii v. Jurris, 13 C. P. 176. Tliis discre- tion shoidtl only he exercised "according to tlie niles </f reason and justice, not private opinion; according to law, and not humor ; it is to he, not arlnticuy. vague antl fanciful, but legal and regular :" Maxwell on Statutes, 100. {z) Where justice recpiires it, tlie Judge has power in garnisliec prooeed'iigs to grant a new trial aftir fourteen daj's: Mrljcan v. MrLcod, o V. U. tiiT. Very extensive powers are conferred hy this section, hut should 1)e used liy ,i Judge "in the honest and hoixt jidi' exercise of his own judgment :" Maclnf/i v, AM'!/, b. 11. 2 Scotch App. 3()0, prr Lord Selhorne. («) The names of all parties and other liarticulars should be entered exactly •as in tlie suit : see Form G. (h) There is no jjower in the Division Court, such as exists under the C. L. !'• Act, to com|tulsorily refer any cause to arl)itration. ('oiixi'iit must he given. either hy jtarties tliemselves or those who represent tliem. It may he laid down generally that all suits the subject of Division ' -ourt jurisdiction may he referred to arliitration : see Kiissell on Awards, 3r<l Kd. 1-10. "Every one eapahie of making a disposition or release of his right can nuike a submission to an award " (Ih. 14.) ; but "persons tiiat cannot contract cannot sulimit to arbitration:" Ih. Wherever a married woman has the right under our statute to sue, slie can lieii party to the reference of that suit to arbitration, and prolxibly any other matters* rr 11 '<-^ \ 'r ■ U7.] ARBITRATION. IGD parties, being withiu the jurisdictiou of the Court, to be that she might have the riglifc to sue for : see Russell, 15. It is sulmiitted that a husband woakl have no jiower to refer matters to arbitration for which an autiou could bo maintained by his wife, exee[it as her agent ; ll>. 1(5. An infant eiiuiiot refer ; but if he should d(» so, it is like most of his contracts, the suliject of ratiiieation when he eoines of age : /h. 18. A partner cannot bind his co-partuer by reference : (Frcnrlt ef iil. v. Weir, 17 IJ. C. H. Ii4.")) ; and the j)OU'er to sue does not give a power to refer (iUissell, 18 and li)) ; and in the ease of partners all must be bound by a reference, otherwise none are Ijound : /'i. ]{). (!,)r]iorations can refer, but it must be the act of the corporate body : Jh. 20. Au intfi'ested jtarty may be added by consent, and, on that being done, the award would be binding on him : //>. 21. An agent duly authori;. jd has autljority to refer ; so also has the assignee of a contract or a debt: ///. 28. Au Attorney has an implied authority to refer a cause to arl)itration (//;. 24j ; and in order to biml a corporation, it is not neeessaiy that his retainer sliould lie under .seal: Fark/l v. Edifi'rii dijiinth-s Nnilund/ Co., 2 !0,\. .S44. Counsel has the jiower to refer ( WiLwii v. 77//- ('orjiordfiaii nf the l^tiifcil Coiiu/'nx (jf Ihtrnti (tin/ Bruce, II C". 1^. 548), and probably even against tlie wish of hi.s idient, unless the elient'.s dissent were eommunieated to the opjiosite party : StrciiKi v. Fraiifi.s, L. II. I g. H. HI'.) ; Kiii'j V. J'iiisoiicui//, L. li. (; I'. i\ 24.") ; Ku.s.sell, 20 and 27. "An e.vecutor or administrator may, as such, submit to arlfitration matters relating to the estate of tlie deceased ; ))ut (it is said) if the arl)itrator tloes not award as niuctli as he would he entitled to at law, it will be a ili'nistdi'it for tlie residue :" Russell, 28. "It aimmnts to an admission of a.ssets:" //*. 29. "Matters may lie referred to arbitration in any manner that expiessiis tiie agreement of the parties to be bound l)y the decision of the person cliosen to determine tlie matters iu controversy:" ///. 'Al. A submission \>y word of mouth is generally binding; hut, like all contracts of a like character, its exact imjiort is often dilHeult of proof and the subject of much contradiction : Russell, 4(5. So also is an agree- ment not under seal; also by bond or deeil : Ih. 4(j, oO. As to referring future • li.sputes to arbitration, see /■"'.'/.'/ v. Xit.sm'ith ct a/., 2S ('. P. .'530 ; l-umhui Tnun- intiis Coiiipainj v. /Jai/ci/, 8 Q. li. D. 217; Kussell, 58, ()5. A submission of reierence is not amendable without consent of ])arties, except in fuitherance of the agreement : ///, 77. It cannot be altered to allow a set-oti': A.i/uroi-//i v. Hi'dt/icotc, G 13ing. 5!)ti ; Miiniau v. Tartc, 11 Ex. 82; hut&ac liuxtron \. Laidcrs, L U. I) 0. P. 25i), and Vawhrhijl v. Mlvcniia, L. U. 8 ('. 1'. 252. 'the sub- mission operates as a stay of proceedings : Kussidl, 82. It also discliargi's sureties in replevin if without their consent : ///. 8;{. Biirkcv. (IJ<jrer, 21 IJ. (J. 1{. -!I4. Any person may l)e an arbitrator, even idiots, lunatics, infants, and inarrieil women : Kussell, 102. Acceptance of the jiosition is necessary to the completeness of the appointment : Jiliujluntl w Loini'/i'f, 15 ('. 11 N. ,S. 178. A (iiirty interested cannot properly be an arltitrat^tr, unless known to botli parties liL'foreliand : Russell, 10;{. An arbitrator must be ineorrujit, and taking money for arbitrator's charges of (Uie of the; pai'ties, before avanl made or liill delivered, invaliilates award : Jh. 100. He must not purchase any claims in dispu •■, and must be impartial. Any private agreement between the arbitrator and a party, respecting the subject of reference intended to be e(Uisidered in the award, is objectionable : Jf). 107. Au arbitrator usually ..taiids in the place of .ludge and jury. He is a judge of law and fact, and he should endeavour to arrive at his eouclusiou ujion the same rules and prinei[)les which would have actuated the tribunals for which he is substituted in eoniing to a decision: Russell, 108. He should loo', at the rights of the parties, not only in a legal light, but awording to the, principles of ecpiity : Ih. 100. When the award must, by the suliuiission, be made within a given time, it cannot be niaile afterwards, unless tiio time is duly extemh.'d ; and for that purpose a Judge W(juld have power to do so, even after the tijue fixed had exjiired ; Denlon v. Slrovy, L. R, 1) Q. B. 117. <■ ' * •* , , »»■ • '. • , i ■ ■ .. ! *■, ■• • ■c • . .■.»■•-.; >' •• «, '4 •-♦.• '■■■ ' ■■■ - ' ':\.-^y- ■■;■■ .»■■•'■ '4'i''! . ■• 1 ■••'••'•■ " ' •'- -,»: «■■ ■ ■ ■■■■:• ^^■^h-:-:$.- ■ ■ ' , :.C'.'.i: ■ ,. '',■•> .• * , ..■..,'•*,■*■ '," i •;:'.•i■;;*■:»:'^v-^. •>,;.:.V'- >.■■.,.■,, -*'■-•, ^ ■ tf" r' '■.• *■ • ^' •> : ■ ■■ ':■'■%? h^ I ^•;>'-;'.V:- :■•• ,.~ < , . * .*■ ... ^t:y . i^^,-m^itc-l.^i'^.Mtajiy Midi mm ,4: ■*■■••..." . ';>'< .■;•■■ ■-■• -r. *■ ;i ■• ■ 'TJ' .* •"4' "^-n \¥ ■■^s't ■ W « ^f -.■-:■ *'.fc , f .■•♦?i \''{ . ■••■■ '•f. ..^*i '■::l . «■■■ 1' 4- :■■ *■■ ^jT ' '• i ■ ■^'Mr .t ;• *■.: -■■'■• %' t#' ,.: k *■ ■■» -> .: » ^Q » ~, ■'A'm ■.«,:' .^^■r ' t: "■k ■■«, ^: .1'" '■- *! ». ■ ' .-ly . > 4 •. 'v..^:'->' 'J,":. " ,^ .. " " ■.'.*^» -. ■ /I hi'"- * .»• .V"--: •.?".■ ■ ' ^^,: .»;. •-•■^;'. : :■ .■» ■•« ^■■'^ ..,„'•> .;v;,^ ■''•»"" . I 1 ",» •^ "' ■' . ■ ."0* ■■■.'f ■ ■ .■*'' : " . ■'■ ■ ' T?'-.-'^ •■"'fc- :.'W^ rtj ■ . "W ' ■> 'S^' ^i -,j-:." s:^ 166 WHAT VITIATES AWARD. [s. 117. referred to arbitration to such person or pensona, and in such '.;i i'4k Where submission is to three ar))itr,itors, an award made by two is good, uidess the submission calls for a mianinious dt'cision : Prvrlnce of Onfarh v. (^iii-hic /'lin/ ('ounr'd (not yet reitorted). As a rule, after an award is made, the arbitrator is fiinctiii^ officii : j\/ordii(' v. Palntir, \j. Ji. (5 C'h. 22. Unless power is given to enlarge, an ar1)itrat<n' has no i)ower to do so : Russell, 130, And if power is given, it must be done within the time limited for making award : Kussell, 131. Unless special power be given to deliver aw'ard afterwards, the deatli of one of the parties revokes submission : Jit, The enlargement must be made acconlini.; to the submission, and by all the arbitrators together : liussell, 132. 'I'he suli- mission usually provides for doing so by endorsement ; but no jvarticuUir foiin is necessary : Ih. 132, 133. A consent to an enlargement after time for making award expired amounts to a new submission : Jl>. 134 ; but see JJitiistaii v. Norton, 13 L. T. N. S. 722. An enlargement of the tmie for making award, without the consent of a suretj' to the submissiim, will discharge him : Hk I'M. After the .irbitrator has accepted the reference, he shoidd grant an appointment of the time anil place of meeting ; and, unless both parties have sufficient notice of it, he cannot properly ])roceed with the reference : Jit re J^ottcr v. KiKipji, ry P. R. 197. The attendance of witnesses can be enforced by a subprena i.ssneci from the Ccmrt : see sectiim 95. Ft is the duty of the arbitrator to hear all the e\-idence, and that too wliui both pai'ties have had an opportunity of being present ; ff>r if evidence is taken in the absence of either one, and not afterwards waived, the award would bo bad: Thonui-s v, J/or/vV, IG L. T. N. S. 398; Russell, 180, 18lj. Or if secret conversations on the sul>ject matter of the reference take place with one of thu parties (Jlc J^awmn and Jliitchlnaon, 19 (irant, 84: Purdce. v, Jjloi/d, Ch. (not yet reported), the arbitrator shoultl take notes of the evidence : Russell, 180. If a party refuses or neglects to attend on (hie notice, or refuses to acknowledge the authority of the aiT)itrator, then the arbitrator may proceed ex parte. ; but, as a precaution, peremptory notice is fre()uently given as well: Ih. 189 ; see alt^u hi re Potter v. Kmipp, f)!'. R. 197; H'^f/v/v. Mr Alpine, 25 0, P. 119. Thf arbitrat()r should observe the rules of evidence ; but if he does not do so, yet tin- award cannot be impeached unless it amounts to misconduct of the ai'bitrator , Rus. 190 ; Pi' Grant v. EaKtn'ood, 22 (J rant, 5(>3. An arbitrator cannot be («//*- pelted, tt) make an award: Russell, 193. If arbitrator has acted wrongly, tlic Court will S(»metimes revoke submission before award made, but more genenillv will give directions : Jb. An arbitrator cannot delegate his authority, but he may adojjt the opinion of another, and has power to call in a valuer (Uruy v. Wilion, L. R. 1 0. P. 50) ; or, if a layman, may call in ;ui Attorney or accountant: Russell, 19G, 15)8. He shouhl not, however, adopt an oinnion he considers wrong : Ih. He may consult counsel on a jjoint of law : lb. 200. If two arbi- ti'ators appointed, they nuist concur in the appointment of an umpire, or third arbitrator : lie. Jlopper, L. R. 2 (). H, 3(>7. Each arbitrator must act, and all must act together ; but one may adopt the opinion of another ; they must all sign the award together : Rus, 204, 207 ; R. & •!. Digest, 140. As an umpire is very sel(h>m appointed in our arbitrations in this Province, a general reference to authority is all that is eonaidered necessary : see Russell, 211 to 231. i'lie award must follow the submission, an<l if it be silent as to form, it may be by parol ; but this is objectionable, it should be in writing : Jh. 233. It is not desirable thflt the award shouhl be drawn up )»y the Attorney of either party ■ Manleji \. Anderson, 2 P. R. 354; Underwood v. The Jiedford and Cainbriiliit Hailira.ji Conipanij, 11 0. B. N. S. 442. When the award is made, notice of it should be given to the parties : Russell, 235. The arbitrator may hold award till payment of his fees : Jb. 23G. Any words expressing a decision is an award ; no recitals Jii'e necessary, but advisable ; but a false recital. does not vitiate it ; //). 243. The award cannot be made in parts j it must be entire : Jb. ii45, •,■.'■•■■ ■■ ■< 147.] AWARD MUST BE PINAL. 167 manner and on such terms as lie thinks reasonable and just. 0. s. u. c. c. lu, a. loy. ><. "The arbitrator must he careful to sue that his award ia a final dt-'cision on all matters retjuiring his determination :" //>. 24(). If matters witl)iii the scitjie of the reference, hut not '»rouglit to the notice of the arl)itrator, jet the award is j^'ood : iM'.v V. iy<tf(rK; 1(5 M, & W. '2{V,i. If one matter ia left undecided, the whdle award is had : llussell, 248. An award of mutual releases is a decision .if all matters : //*. 2/54. An intendment is made in favour of an award, and more especially where it is made ''of and concerning the premises :" J( iri'll v. ('Iiri.<tie, L. li. 2 C P. 29(5. 'I'he general finding is ]iresumed final : Jii re H'/iit- Mviili V. JfuUe, L. II. 1 Ex. *2r)l. An award in the alternati%e is sufficiently fiuid if either alternative is certain : I{us8<ill, 205. An arbitrator cannot reserve .uiy part of his authority any more than he can delegate it {Jl>. 2(10), provided his reservation is of a judicial function. He may reserve or delegate a merely >iihi'i4i-ria( duty: Thorp v. Coh-, 2 0. M. & K. ,^()7 ; llnrnmjIiDi v. Edison, II CT. (.'. R. 114. The award nnist Iw certain to a common intent, but it need not name any time for doing any act, nor contain a date ; Kussell, 271. The precise riiuount to be paid must he fixed : //». 27Ji ; Hob. k Jos. Digest, 128. The exact .imiuiut of costs need not be ascertained : Russell, 27o. An arbitrator awarding security must specify it : lb. 279. An award must be jwseible and consistent : ]h. 2S4. A}i award will not be set aside on the ground of mistake on the part of the arbitrator, unless it an)(nmts to miscon<luct: lb. 292 ; Pcitc/icu v. Lojiih, '2") ('. P. 5S8 ; //<■ U/anI v. En.itirood, 22 (jtrant, 563. As to statements made hy the arbitratcn- after his award as to his mistake, «ee llussell, page 294. An award, although bad in part, may be good as tt) those parts well decided and seiiarable : /b. .'307. Disposing of the cause without deciding it is sufficient, but not satisfactory : //). 'A'20. An award of nonsuit is not a good determination of the cause, for iji its wature it is }iot final : Kn'mht v. Biirlnii, 1 8alk. 75 ; Wild V. Ijidt, 9 M. & W. 1(»1. The arbitrator nmst decide the cause when costs .ibide the event; Russell, 321. If an arlutrator find for plaintitt", he should .awartl damages : Ih. 3.39. The arbitrator has an implied power over the costs of the cause ; but the costs of reference and award must be provided for in the iuference : lb. 3.')4. If an award is silent as to costs, costs of the cause follow the eveut: //*. 357. An arbitrator should uot award a fee to himself (Jb. 301), nor lix it: MrCtilhrh v. White, 33 U. C R. 331. Of the general j)owers of an .arbitrator, see Russell, p. .383 to 40'2. A directiim to p,ay money to a .stran^irer !S void, unless as trustee for one of the parties {lb. 415) ; but to a party or his -Attorney is good : Hare v. Fb'ai/, 11 (.'. n. 472. So a direction t<i a stranger to do an aet is void : /b. 418. So also is any direction afi'ccting his property : /b. 4'JO. It is doubtful if in Division CVmrts Jin award can be referred back. The •■iglit to do so is ciniferred by statute. QiKvrc: \Vould secticui 244 ap2)ly to such a case? As to referring back awards, see liussell, 444, 455; A'ass v. The Cnr- purafion of Brnef, 21 0. P. .')48. An arbitrator's fees are rtfgulated by Rev. Statutes, cap. 04. Although an award cannot be imi)eached for the omission to decide any matter within the scope of the reference, but not brought under the notice of tiie arbitrator, yet no action can be brought for any matter within the scope of the submission, whetlier brought before the arbitrator or not. Parties sliouhl therefore be careful in bringing forward, at the time of the reference, (ivcry claim within the submission on which they intend to insint : Diiidi v. Miirraij, 9 B. & C. 780. As to the performance of an award, sec Russell, 491. An action may be brought (Lici'csb'!/ v. (Tilmore, L. R. 1 C. P. 570), or judgment entered up under section 149 on award : Russell, 499. In proving an award, in an action on if, the submission by rt7/ parties must be proved : lb. 5'29 ; Ffrrer V. Orcii, 7 B. &, (J. 4'27. An award is no evidence against strangers : Emns v. H>' t, 10 .\. & K. 151. As to the grounds for motion to set aside; an award, see liussell, 040 ; Me Grant v. Eastwood, 22 Grant, 503 ; Ward v. Mc Alpine, 25 C. P. ^ <^_<' ( / ^ t f / /r-v v. yt^ ( C tf- < MilyC /5 ^ t * « ■'•1 ' ; > ' ^ '^ - 1 I ^, '•*■.. '»■ ■••. .;.r.'^ .-•'■■■;" ■•■■ -■.■•■'•.*■•-.-•./ •. • .. v-l'^i ..;- .r^^-^fi-.' :■■■ 1 - ,. . *%^#. *. . ' ,■'■*.- • h:' ■■'. 'i , ' - -^ ■.;««.'.-■.; ' -.■ - - f '• 1*' ■ '"■ ■ , . '.v -f;' '■:••'■• .. ' •, * ' ■ . -i..,*^ -1. ■ . - -.«.;•■■.!•; ^ /<*'(-. ■ • - ,.''■ ''i^r'.i ..'' -^ ;^V:;4.,;.•.■,^,v•:^ . /'V*:- •>:•.-;.;;-■"■ •. ... - < ■ ■ ■■• •.„>,• ■ n^ . . f X'^- ins WHEN REFERENCE REVOCABLE. [s. 148. T'.. -r*-;K /.'! ►: ■ * ■ .,..;*'- ■-",'« i" * • " * ■ " ■ ■ 1 , • ^ . ■*■•, ' ■>ff. • »".■■■•' ■; .'i. •v ■ ■ ■ ■■■!■ ■•,4- p. .l: > • .*«■■. ■4m it;''. ■■'■ • i ■.-•'■». \;->' ■■•■■■%'■;<,.•/■■■ ■*■■■ •''■li'.v ;■"•':,:, ■.■■.>■-•- .,T.«i,.- .f .. ■■',.■ > ■ " '■ ;r^-y;";/,^- :;y-;. '.T'.'i;.: X oiiiyrevo- I4S. Sucli roforeuce sluxll not be revocable («) by oitlicf .r'tidKc's party, exc(!|)t with the consent of tlie Judge. 0. S. U. (!. c. 19, s. 110. Hit; PcHchenv. fj<n>ih, 25 C. P. 588. Arbitrators are not bound by the same strict rule aa Judges are in a Clkjurt of law : (Jlen v. Grand Trunk Rn'ihrnii Com- puni/, "2 1'. R. 'Ml. Tiiey cannot determine the (juestions referred by corres- pondence : JcL-i/ll V. WitHc, 8 (irant, 3(58. If costs awarded where there Ls no power to do so, and .are separable, the award is good a.s to part : Ji)ni-.i v. /iV»/, 1 P. 11. 247. Differences in law as well as fact are the subject of reference : Jianrfci/ijcr v. HohncK, L. H. 1 C. P. G70. Parties may waive irregrdarities in the proceedings by appearing before the arbitrator: RUnjInnd r. Loinudr.-i, 15 C B. N. .S. 173. So also may tliey waive the taking of evidence under oath ( Wnkcjield v. Lhmilhi It and Dork Co. M P.eav. 245; 12 L, T. N. S. 501), s. c); or the objection that evidence was taken in the al)8ence of one of tlie parties : T/iom<i.'iv. Morrlf, Hi L. T. N. S, .Sl>8. If an arbitrator admits his mistake, the award may be set .aside {In re Dtira Vallcii Rallwdi/ ('omjHini/. L. 11. (5 Imj. 4'2!> ; see .also F/>/nn v. liohcrt.'ian, L. H. 4 C. P. 324) ; and he can be examined on tiiat point: Bnvrlcurh [Duke) v. Metropolitan Btiard of Works, L, R. 3 Ex. .'iOO. Parties may withdraw one ])oint .and the finding on the others is good : Lanu-cneo V. Brl-^tol (rnd Xortli Somerset liallwaji ComjKtni/, IG L. T. N. S. 32(5. An arbi- trator enters on the reference, not when he accepts the ofHce, but when he com- mences witli the reference by both parties being before him : Baker v. Sfe/i/uns, L. It. 2 Q. B. 523. A waiver of irregularity must be .an int'^ntional act with knowledge : Darnleij {Earl) v. London, Chatliani and Dorer li ihaaij (fo)u/iaH//, L. R. 2 H. L. 43. The entertainment of arbitrators or uiLpire is improper; fie Hopper, L. R. 2 Q. B. 3(57. An umpire must hear .all the evidence himself : Morden v. Widdijiefd, (5 P. R. 179. The appointment of an umpire is a judicial act .and must be done together, yet the signing an appointment previously miulo is not : Re Hopper, L. R. 2 Q. 15. 3(57. As to the meaning of tlie term "costs to abide the event," see Lan(/nd(je v. Caniphelf, 2 Ex. D. 281 ; (larnet\. Hnidhii, 2 Ex. D. 349, w.as revei-sed in H. of L. For further reference on this subject, see Fisher's Digest, 188 to 325, and 91.57 to 9171 ; R. & J. Digest, 114 to 187 ; Ptoscoe's N. P. 470 to 473 ; Arch. & Lush's Pr.act., title, "Arbitration," 5 L.J. N. S. 225. (c) At Common Law a submission to .arbitration was revcwable even if the parties had declared in the submission it should not be : Russell on Awards, 140. But not if by order of reference: Ilardlmjv. Wtckhani, 4 L. T. N. S. 738 ; 2 J. & Hem. (576, s.e. The .application to revoke must Ikj m.ade before aw.ard made (Phipih'i v. Inijrain, 3 Dowl. GG9) ; and by summons to shew cause, and .after full opportunity to the opiK)site party tf> be heard : C/arke v. Storken, 5 Dowl. 32 ; Russell, 146. Th« discretion to revoke will l)e exercised most cautiously and sparingly : Scott v. Van Sandau, 1 Q. B. 11)2. In the latter case. Lord Dennuan s.ays, the revocation of submission "ougl)i t ■-- ^isi-rjised in the most sparing and cautious manner, lest ,an agi-eement t(' >'.•• ir .r>; .rhich all might r&ason.ably hope for a sj)eedy end of sti"ife, shcmld only _. ..t.e flood- gates for multij)lied expenses and interminable delays." Sef. ai lO -v Wrhjht and the Cor)>oration of the (.'onnfi/ of Greij, 8 U. C L. J. i04. Wb; >j,ie of the p.arties takes proceedings in another Court for the same cause, it is a grinind for tlie .application by the other ; Woodcntft v. Jones, In re, 9 Dowl. .538 ; see also Wilson V. Morrell, 15 C. B. 720; Afder v. Parke, 5 Dowl. 16; Russell, 14(5. An arbitrator's clearly mist.akiug the law is a good ground for .applying : FavieU v. Eastern (Jonnties Jiailwa;/ Cc, 2 Ex. 344. If one Jjarty beccmie insolvent, the other might prol)ably get leave to revoke the submission: (lafney v. KiUen, 12 Irish C. L. R. App. xxv ; but see Ilem.s-iuorth v. Brian, I C. B. 131. If evidence is taken behind the back of the other, even though an ■ «.-' * •■ 149.] AWARD MAY BE ENTKUED AS A JUDfiilENT. 169 14». The award of tlu; Arbitrator or Arbitratoi-s or ^,;y;';;',,*;;^'"' LFnii>ire shall be e-iitered as the judgiaent in the cause, and JiKJ^'i^ut. shall be as binding and efi'eetual ('/) as if given by the Judge. 0.8. U. C. c. 19, s. 111. (itt'er M'as maile to reliear tho witness, tlie sul)iiiission will l»c revoked : Dnw v. l)r(ii\ H. (tt' Jj. Maroli 8, KS.').') ; In r<' /'offer <ui</ Kiiaii/i, (5 T^. J. N. S. 12"); /« re Lmrsoii v. llnfrh'niHoii, li( ( irant, 8-1. (.'orniiitioii in an arbitrator is j^odd iranse [Dnw V. Lrl/iini, 2 Macci- H. Ij. (Jas. 1 ; /iV (irmit v ICa.'^ficond, '22 (iiant, "lU.S) ; iirf^ross misconduct {Rom v. The ('orponitloii of the Vountji of lirucc, '21 (J. 1'. 548 ; Miih/ic.ilxiri/ J'di/wti,!/ Co. V. liiiihl, 2 Cli. D. 118); or tliat an inn]>ire or third ;iri)itrator was ajipointed bv lot : /'Jiiropcitn mid AiiK'riron iStcdni, S/ii/ij/itii/ (^o. V. ('ro.-idri/, 8 0. B. N. H. ;ii)7 ; bnt see AV Ifojiprr, L. [\. 2 Q. 15. IMu. If the .hi(lj,'o should be satisfied that the arbitrator only erreii by mistake, and tliat lie would obey the direction of the .ludge, the reference would not be revoked : llitii V. Didr, 1> Jur. N. S. ll!( ; .S2 b. .1. (). H. '>'>. (^^uestions are sometimes not decided, leaving parties to bring up the nuitter in another way : Tuiilor v. Sliitfflrirorf/i, 8 Dowl 281 ; Tai/lcr v. MurliiKj, 2 M. & (i. ;■),"). At Common Law, marriage of a female revoked the submission (Kussell, 152) ; but it is sub- mitted it does not do so now in this Province: Uev. Stat. 1 1(!(>. \\'here tliere are two arbitrators and an umpire, the authority of the arbitrators ee;ises on tliuir disagreement, and that of the umpire only then commences : Tiinno v. ,'iinl, In re, 5 H. & Ad. 488. In Division Courts does the death of the arbitra- tor, or one, if more, revoke the sul)n\ission '! Qnti'ir : see Russell, loS. (iencrally the death of tiie parties to the submission before the award, except under order of reference, revokes the authority of the arbitrator ('J'l/lcr v. Jonrx, H 15. & ('. 141). ludess the submission contains a clause to the contrary (M' DoikjuI v. lidlii rf.soii, 4 Bing. 485) ; but the better opinion is that where there are several parties on one si<le, the death of one of them does not vacate the submission (Russell, 155 ; In ri' /fan; <0 Milne, (> Bing. N. C. 158) ; nor does it do so where the tluty of the arbitrator is not to make an award, but merely to state a case : Jaini'ii V. Crane, 8 IJ. & L. GOl. Where an infant had entered into a submission, his death was held to have revoked it as against his guardian ami trustees : HrUtow V. Bhtns, 8 D. & U. 184. Equity cannot give any relief in case of (luatli : BInnde/l v. Breflivijh, 17 Vesey, '282. As to the form of a clause, allowing a delivery of the award after death of either party and its effect, see Russell, 158; Prior v. Henihrow, 8 M. <t W. 878; Hare and Milne, In re, <> Bing. N. C 158. The executors are bound by such a clause : //>. A jn'obability that the arbitrator will give more than one of the parties eonsitlered right is no cause of revocation : (lre<d Wedern Hailwaij Co. v. Miller, 12 U. C. \l. (i54. The submission was revoked where a party ai)])ointed one who formerly acted as his Attm-iuiy, though not in the suit : 7'/;//// v. C/iandierlain, 9 L. J. N. S. '2.37. Where arbitrators are about to allow improper charges as part of their award, application can be made to revoke : Carcedi v. Fortioie, 12 C. I'. 504. Submission cannot l)e revoked after award made : Pliippa v. hKjrdni, 8 DowL (WJ. (Jenerally, as to the revocation of a submission, see Tliomson v. An'leraon, !.. U. 9 Imp 528 ; Re Roune and Meier, L. 11. (i C. P. 212 ; Rnnilell v. Thuinpxon, 1 Q. B. D. 748 ; Cooper v. Johnson, 2 B. & Aid. 8!)4 ; Ti/ler v. ,Ione.-<, S B. & < ;. 144; iJriiri/, In re, 88 L. J. (Hi. 278; 19 L. T. N. 8. 708, s. c. ; Bob. & Jos. i>igest. 122 ; Fisher's Digest, 208 ; sec. 149, and notes ; Law v. Garreft, 8 Ch. !)• 2G ; Bedwell v. Wood, 2 Q. B. D. G2G. (d) The Arbitrator takes the place of the Judge, and if the award is good on its face, the judgment itself cannot be impeached : Kussell on Awards, G77, and cases there cited ; also R. & J's. Digest, 17*i. But if the award itself is attacked, Uiu proceedings must go back to that ; as to wliich, see notes to section 150. • •■ . '• , 'i}-.v ■■■■■' ri *v-:>'M-..'r-T!..-;. ' ■T'-:Vv.;;'!^'j/..--.:. I V-i^ ■• ■ '•• •..■^•/; I . ■ • ..,:*. ■ • e . , - ,■,»'• ; ,' ! ■'■■ • »- - ' ■■'; ' *••■ .,' -'■ -*■■ ■■, ■ ^ ■; - -.5 ,'.••?.•■.• ••■•1 . • ••; • '.-. * •' . -1 ... ■ * •" . > » 'd. ' •■-:.•.♦■.. .^M-'-^'*-'- ■■.:■.-■' •.->;?» ■■'^/I ... .-^-^--I I '■r'-r-i*'"' ■ ■'•■/,>t T!",.^ ^.- ' I " ' ■'' •!%.' ■- •" •* .y. .-. . ; * r ■ •■.'•'•'■., 1 ■ «..•.«> ,' , . tl ■'■ •■•.*•.•,•■■ ■•••..•* •¥-■ ' ■I-'l **-'■■ ' " '■ ' '•..<■ "•'i?' ■•■""■■*"'" ..■■•'•" ,>'--V. '!-■■■ ;,-k'« '''"2 vv '..■■■■ , , 1 .1 iiipMm ''"-' "':i li Iff; ; . '*> "* x^m- ■ ■?« ( ,W - .. • , 170 AVVAKD MAY BE SET ASIDE. [ss. ir)0-I5L>. ■ ■ ■' rl'k.' ••■' ■ ■. -■ '- ; ' :/ i; •' C .. ■ „ •,«, •» f, , 'i ii'.i. ■•'iiilli . ■■ ■■ -i„'u \> , ■;■■';,<■'■• ■■»;.m(:^ : r. I'tr .-, ■•'•", I * ri « ' ■!.•. ' ■?: ".- ■■"»•.■ Judcrc may But iisidu award. v.. ' ■■•■<?,■•''.,% :^:- .■ ■;•■ ■ <&'*-« ■.:1j ■ ? . ■ ■ * . ' ^ «■ . '»'■ ■ »• r' •■;. ^':1.'"-\^ Arltitrators may also udiiiiiiisti'i' oatiiH. 150* Tlie Jndifp, on application to him witliiii foiirticn days after the (^iitry of such award, (e) may, if lie tliiiiks tit. sot aside ( /) the award, or niiiy, with the oouseut of hoth parties, revoke the reference and order another ref(,>renoo U> be made in the manner aforesaid. C. S. U. 0. c. It), s. 111'. 151, Any of such Arbitrators may administer an oatli or affirmation {<j) to the parties, and to all otlier persons ex aniined before such arbitrator. C. S. U. C. c. 19, s. 113. CONFESSIONS OF DEBT. Clerks nm\ 153. Any Bailiff or Clerk, Ijofore or after suit commenced, liailills may . tako I'lutLs- may take a confession (A) or acknowledgment of debt fiom any debtor or defendant desirous of executing the same, SIUIIS. (fi) 111 tlie calculatiou of time the day of entry is excluded : see notes to sec. 107. This refers to the entry l)y the clerk : see section 37. (/) An award will be set aside where the conduct of the arbitrator is corrupt or irregular : Russell on Awards, 6-K) ; /I'o.s'.s v. The Corpnratiun o/' tlic (.'(niiih/ of JJnirc, 21 C. P. CAH ; I a re Liiwwn and HiitchbiHon, 19 (irant, 84 ; ]V<n<l v. McAlinuc, 'jn C. P. 119 ; I\'uch,n v. Lamb, 25 C. P. 588. Or where there lias been fraud or excess of jurisdiction, or the arbitrators niakiiig the award admit the mistake : lii' (Irani v. Ea^tinHnl, 22 (Jraut, 5G3 ; J)h)ii v. Bhih, h. 11. 10 ( . P. 388. Also wliere the award is not filial (Russell (J5(>), or is uncertain {lb. ♦)52) ; or where the arliitrator has exceeded his authority (lb. ().")3) ; or where a party is "guilty of fraudulent conceahiieut of matters which he ought to havf disclosed ; or i*^ he wilfully mislead or deceive the arbitrator, the award may be set aside :" I(>. 054. It is no groimd for setting aside an award that a party has been suri)rised by an unexMccted case set up by his opponent on the refer- ence whicli he believes not to l>e true, if he did not apply to the arbitrator to postpone making his award, and to give time for inquiry : Solomon v. Solinnou. 4 H. & N. 858 (Ainer. Kd.) T'erjury or incorrect statement of a witness is no gi'ound for setting aside an award (Russell (550) ; or because it is against evidence : Tanner Y. Sewrij, '11 ii. P. 58; see also Arch. Prae., "Setting aside Award," 12th Ed. 1682 ; Lush's I'ract. 1059, aud references given in notes to section 147 of this Act. Should tlie .Judge refuse to set aside an award, his decision coulil not be reviewed : Maijery. Furnier, .3 Ex. i). 235. On the subject generallv. see Fisher's Digest, 292; L. R. Digest, 200; K. & J.'s Digest, 158. As to setting aside fence-viewer's award, see In re Cameron and Kerr, 25 U. C R. 533 ; Jn re Roberts and Holland, 7 L. J. N. S. 241 ; Riddell v. McKay, 13 L. J. N. S. 92; K. & J.'s Digest, 1518. [q] As to who may affirm, see Rev. Stat, page 778. For form of affirmation, see Form No. 110((/). (h) When taken before suit commenced, particulars of claim as full as are required for special summons must be shewn by the confession, or attached td it : Rule 131, section 79, and Rule 3. Where some of defendants served with speciid summons confess and others do not, as to the duty of the Olerk, see Rule 20. And where som(! served with special summons do not defend ami others do, those not defending are taken to have confessed the plaintiflt's claim : Rule 24. If a defendant served with a special summons does not file a di.sjmt- ing notice, but gives a confession, the plaintiff can elect to take proceedings on >»,.:..■ ;v ss. 153, 154.] CONFKSSIOy MAY BE TAKEN. 171 wliicli confession or afknowledgnient sliiiU be in wiitincf and witnessed by the Bailiff or Clerk at the time of the taking thereof; and upon the production of such confession or iicknowledgment to the Judge, and its being proved by the oatli of such Bailiff or Cleik, juiiyuieiil may ue eiiteved thereon. C. S. U. C. c. 19, s. 117. 153. Such oath or affidavit shall state thitt the ]mi'ty ^'idmit • 1 • • 1 . 1 111 Ml • iM|iiir('(l in iiiiiknig it has not received, and that he will not receive, such case*, auytliing from the i)laintiff or defendant, or any other person, except his lawful fees, for taking such confession or iicknowledginent, and that he has no interest (i) in the demand sought to be recovered. C. S. U. C. c. 19, s. 118. COSTS, 154. The cosis of any action or proceeding (k) not other- Jmis<-' insy * . api>ortioii wise provided for, shall be paid by or apportioned between ^-onu. the pai'ties in such manner as the Judge thinks lit, (/) and tliu confession or otherwise : Rule 30. As to the form of a confession after suit, see form 104. There is no f(jrm of confession before suit, but the above can easily be adapted. One p<artner cannot give a confession for the firm with- out special authority (Huff v. Ciimeron et al. 1 P. li. Uoo ; Ilamh'uhje v. De. La Vrow'f, 3 C. B. 742) ; but if the non-executing partner conies to know of it, an<l allows jiroceedings to })e taken upon it, and delays for eighteen months before applying to set it aside, a judgment u[)on it will not be disturl)e<i : liruum v. Ctihjiiiars, 2 P. R. 205. A confession could be given liy the Attorney of the ilefeiulant [Rklnnond v. Prortor, 3 U. C. L. J. 202) ; l)ut he had better attach iiiii authority to the confession. One of several executors has no j)ower to bind the others by giving a confession: (Commercial Bank of (^(inada v. jr. odruffet III. 21 U. 0, R. (502. A plaintiff' giving time for a debt may take coiifessifm as additional security : ParLrrw Jwlnrls, 3 U. C. R. il4 ; Poller v. Pickie, 2 P. R. 3!U. There should be an affidavit of execution (Form 108); but where judgment is entered on a confession without affidavit, it would not be set aside, but the affi- davit would be allowed to be filed afterwards: /'offer v. Ph-kle, 2 P. R. .S91. A confession given by the maker of a note payable immediately is no defence to an action against the endorser; Bank of Montreal v. DoiKjhts, 17 IT. C. R. 208. If one of two defendants dies after confession and before judgment, leave would be given to enter judgment against tlie survivor : Nirhall v. Cartwrhjht, lay. 404; see letter at l)age 313 of 7 U. C. L.J. on Confession ; R. & .l.'s Digest, 071 ; Fisher's Digest, 8r)2.'). ((") As neither Clei'ks nor Bailiffs can sue in their own Courts, neither should they have any "interest " in the suits of others. (k) iSee notes to section 49. (/) It is submitted that the general rule that costs follow the event is the best to oli«.jrve. Suing without rendering a bill, or otherwise acting vexatiously, would probably be found a good reason for the exception. Although the .Judge l)»a full power over costg, lie would only exercise it upon some established >ii '•• ■ n:ri V *:•'.'• .'•■fv^' '.''■■-■■ s ,v :v.% ■>'^^/• J >,• ,,' ■ '.■,•■• ,; .'• ■:«tv.. :: V^,;,- •. ■:'■:. - '■ --.i^ '■■ ■ -■ '■ r-;;. ••• .•• •,,'■..•. .-. .■; . ■ -•'.•.■■ ^ ■*>'.• . •. • ■ 4., *^ St ■: -.-^s .t* '■•• .■ M-- •H- - 1. 'f .', ^.^ , ' ' ."'.4' ■'■' * ** A^^•■•^ • ■ »■' -*«'■ .^■' ! J. 1 .•:(,''«'• -■ *\ - - v'.'i 1.1 '- -- , ' ■;;»',• ,4f'* ,;.'...*3;1r*H- "■ r t 1,, . 4> ■A ' ' iM ■:/'ij!:-- ■!, ' ■ , ' ' '..,<■* i ' -. '1 * .■' « ! .' *■;: ■-■» -^.;-'..^ 1" ;■■■■* ■» ■M* ' '. .. ^- ,' •"II. . ,• '" •->^:*'r; ,»:- r . .',f ..*•■.■■•, , n ;■:•».' '-' .1 ' -'m •til.. '/. • ' ' ».''. ■•-:> ':^ COSTS IN DISCRETION OF JUDOE. [ss, 155, I.")!]. in cases wliere the pliiintifi' does not ap[)ear in person or l>v some person on his lu'lialf, or appearin^j does not make pruot of Jiis demand to the satisfaction of tlie Judifc, he mav award to tin; defen(hint such costs and sucli fnrther sum (it money, (m) by way of satisfaction for liis ti'oiihlc imd attt(ndanc(», aS lie tliinks proper, to be recovered as pro\ idid for in otlier cases under this Act ; and in default of aiiv S}»ecial direction, tlic costs sliall abide the (ivent of tlic action, and execution may issue for the recovery thereof in like manner as for any debt adjudged in the Court. C. S, U. C. c. ID, s. 111. PROCEEDINGS NOT TO BE SET ASIDE FOR MATTER OF FORM. 155. No order, verdict, j)id;L(inent, or other procecMJ 1111' Judyinents rovirscdi'or Jiad Or made concerning any matter or tlung under this Act W.llll ol ., , , , IP p /• form. sliall be (piasJied or vacated tor any matter or torm (») C. S. U. C. c. 19, s. 191. ■ .a* V, •3- ♦ > ■V:w"::.^ WhcrR mollify nut i)iiid, JUDGMENT (o) AND EXECUTION. tiid. In case the Judge makes an order for the pnyniont of money, and in case of default of payment of the whole or ])rinciple of law or practice : Maxwell on Statutes, 100. In the absence of any special direction, costs abide the event under this section. (»t) .Since tiie statute aUowing parties to give evidence on their own bi'lialf, the rule has been to tax to them witness fees on their sliewing tiiat they atteniUnl o/^/v-.sx/// to give evidence on their own behalf, and not to aupuriiitiiiii the cause {/foiucs v. BarJicr, 18 Q. B. 588) ; but siiould the defendant not boa v.'itness, then the .Tudge could unih'v thi^ section make him a ii-asonal)le .dlinV- ance "for Ids trouble and attendance." Such allowance could be made even if he had been a witness : see also notes to the tariff under the head of " Witnuss Fees." (n) Though an adjudication be informal, it will be upheld if it be a substantial decision of the cause : Olijihant v. Lcdie. tl al., 24 U. C. R. 398 ; see also Crawford v. liealtie, 39 U. C. R. L>S. (o) By judgment is here meant that final judicial determination of a cause which concludes parties and privies to it, and prevents them litig.ating the suli- ject matter of it either in the Divisicm Court or in any other : GihhH v. Cru'ik- .shank, L. R. 8 C. P. 404 ; Flitters v. AUfrci/, L. R. IOC. P. 29 ; Auslinv. J/;//s 9 Ex. 288 ; D<wer v. Child, 1 Ex. D. 172 ; BaUock v. Daiilap, 2 Ex. D. 43 ; sec note (/), section 7. So long as a judgment stands, if regularly entered or juo- ceeding.s duly taken, it estoi)s either party from denying its correctness, or of the executi(m founded upon it {Hiithr \. Allen, \j. R. 2 Ex. 15; Ve.ntrisv. Jhvwn it al. 22 C. P. 345) ; but if obtained by covin and collusion, it is no bar, antl does not affect third parties : (Jirdlestone v. Briyhton Aquarium Co., 3 Ex. t>. ife'i^''->'5^^' R. inc.] .TUnr.MENT AND KXT.rUTIO.V, 17:i of Riiv I'iii't tlioroof, \]w imrtv in whoso favour Hurli order 1ms j'i''''"">'>t • ' I . 1,1, dlilrr, hocn uiiulo, may .sue out cxocutiou (//) a'^iinst tin; jfuodsand ix';'iiii.m duittols of the party iu default; and tiuu-oupou tlio Clerk, • ':'i'. ' ■' .. :'7Si ''\ ■•«.■*,, • 1,'!7. \Vlicrc 11(1 irrcpar.'iKlc wioiii; will bo il<ino to a iilniiitilV wlm li;is olitiiiiiod jud'iiiK'Ut hy (U'f'iiult, lajisi; of tiiiii^ is iin liar to iiii ajiiilicatioii to sit it aside : Alii'iiiiil X. Clih'histi'r ',\ (I. H. I). 7'-'-. N" iictioii fan In; liroiiuht in a Siiperioi" (ir Ciiuuty t'ourt on tlu: judifinoiit of a DiviHinii Coint : Mrl'lursuii v. FurriKti r, 11 U. (!.'U. :HV2; Ih.iiiKlhi it (il. V. Strwnrf, '_>.') l'. ('. l\. IVJS. A I )ivisioii Court jud^nnent can 1)0 sct-olV against a SujuTior ("oiirt jiKl^'nifiit : llnlunndii v. Sliit /t/s, '2 L. •!. N. S. 4."). A judginiMit ca; he dii^oliai'^'cd liy iiroix't'iliiijis in insolvoiicy fdlldWcd liy an order oi' diHoliai'gu. i-'it tlic nanu' of the .jnd;L,'intiit cri'ditor nmst lie didv suiu'dided in the list or Hiiiij^enientai'v list of creditors, a- rt:i|iiired \>y llie Insidvent Act : sec Klinl v. Si-i/fi, !!»('. V. .Sl'.l; Fan;-// v. UWiUI, 'I'lV.V. :il ; l\ih,>i'i- V. Ihdrr, '11 V. V .)!» ; Cimcron w l[„ll,tiul, 2!) H. ('. I{. ')()(). Tf the diseliai-ge is obtained by fraud, it is void : ^/o/A<;//(// v. dm fid in, 'I'l ( '. V. 'j'.'il ; MrLiiiii V. McLilhyii, "J!! U. ('. 11. f)-! 8. A deed of coinjiosition under the lusolAeut -Act i.s also a discharge, )f diilti rmijiniU'd (<!riiliiiiii v. MrKi rii<i)i, 42 r. ('. U. ;i()8), or if the creditor has estoiiped himself from (|nestioniiig it; Mr.MoMn- villi. V. Kiiiij, 42 U. {.!. Jl. 4011; Cuinjihill \. I in Thuni. 1 C. P. J). 207; J'Jj: pni'tf LniKJ, In I'c ^'"".'/, *"» f^h- iK 5)71. Hut if obtained by fraud, it tiid is void: Thimip'^nii v. Riillnrford, 27 U. •'. l{. 2()."i. As to the effect of deeds of eiiiii|)osition generally on judgment and otluir debts, see Foic/ir v. J'i'niii if iil. It; ('. 1'. 2.")8 ; Miir/in v. liriuiull ft. id. 4 V. It. 22!» ; Slum- v. JAfs.s/,', 21 C. l\ '_'(ili; Dn-iliii' V. Wat.-ioii, ;W iJ. ('. It. IC..") ; Allun v. durrutt it nl. ;{|) I'. (". R. Km; In r'r Lausoii vt nl. ") J^. J. N. S. 2.'i2 ; dru-,, v. Sicin, 22 ('. P. ;i()7 ; I)iu-i<l.<-m V. Pi'rri/, 2S (J. P. 34() ; liiiriiiaiuii v. Sin'ith, 17 <!rant, 208 ; bSlMrant, 41, s. c. ; Nkhol.tim v. (hinn, S5 IJ. (.'. 11. 7. If itroceedings arc taken on ;v judgment after a discharge in insolvency, or confirmation of deeil of coni[)oai- tioii. the Judge will set aside the execution with costs : Dirkui.sijii v. Hiinnill, inc. P. 2I(); Diinil.'ioH v. /V/r//, 2S C. P. M{\. The Insolvent Act apjilies to Division Court jmlgments ; Piittrv.titn w MrCnrtlnj, H") I'. C. It. 14. U'hon a jiriduissory note in the hand.s of emlorsoe is not discharged, see Ex parte Malhiiw.^ In ri' Anu'd, \j R. 10 ('h. H04. ( p] The endorsement of execution for a larger amount than is actually due is not /)'■/• .sY' an injury to the plaintiff ; it must be shewn that more gotxls were seized tlian were necessary or reasonable to satisfy what was really due ; ami it should l»e shewn that the acts complained of wered'.>ne maliciously and without reasonable oi' probable cause : Biirl)i-r v. DaiiliU, 12 C. P. 08; see also tiaxnn V. Va-ilh; A. & K. 0')2 ; Tiinrnil. v. Lcijlaml, 10 Q. B. 0()9 ; CluurkiU v. aS7//- qcrti, S 10. & H. 5);i7. But allegation and proof in a similar case that execution was issued wrongfully ami maliciously, and without I'easonable and probable (\uise, will support an action for the injury ; Uiivar et u(. v. Carri'/iie, 14 0. P. i;{7 ; (!ili/i)i!i V. E'/ir, 10 C. B. N. S. r)!)2. "Hxecution" sometimes means the writ itself, and what is done under it: Mi-Dunalil v. Cli'limil, G P. R. 29.'{. As to a Bailitt's duties under an execution, see 2 U. C L. J. 202, 221. "Levying" on execution sometimes nwtuia nrhuri'. mill sail' : Buss v. Gramjn, 25 U. 0. R. 390 ; Biicluniuti ft al, v. Frank, IT) (,'. P. page 1!)8. JOxeuution should not be issued by the Clerk without an express order from the pai'ty entitled to it (4 U. C. L. J. 203 and 251) ; or, it is submitted, where fnini a course of business the authority to issue it can reasonably be inferred. Exei^utions should be executed in the order in which the Bailifl' receives them (4 U. C. L. J. 251), and the Bailiff should endorse on each the date of receipt (2 U. C. L. J. 203) ; but we differ from the opinion expressed in the pages of the l^w Journal, just referred to, where it is said that, in the event of a number '.'. -i^^m T,.. ,.•,.•••■■ tl •'■■■'■ ■ ■) ■'■■ . ■' • ■'• \ ■■; ■-;• •'■- ■ ■ t' ■. ~-, ■■ ' ■ . .,• ■•;;.' ^- v. :^'' ,•■• ■,.■ ■ ".*».. . ■ ' '•-? ' X-vV"''- ■'■■ ■m:ry^ r-'^'^p^p •I ... 174 ' .1*. ;-■■ . •»'■■ l',.,l .t-./^"' '• : V,,: OLliKK SHAM. ISSUK KXKt'L'TION, [s. IDtJ. at tlio nHino.si of tho |)iirty i>ros('cutiiij^ tlic oi'<1(M', sliull issup W.^^ of exeoutions oomiii^ into tin- Hiiilitf'H haiKls .-vt imt'e, lu- hIiohIiI oxtM-iito tlirm in till' nnliT of till' suit miml)ir. It is siildiiitti'd tliiit wlirtlicr Mi'ViM'a! cxcicutiiiiiH agiiitist tilt' saiiio luTHnii art' dclivurc'd into tin- Maillfl"H liamLs at one tiiiii', or he ri'ct'ivert tlii'iii ))y post, tliat tliat t'XciMitioii Hhoiild lii> (ii'nt »!Xt!i:utt(d irliirU //„■ llii'il[(l'jiril sirs. Seiztiri' Hliould hv iiiadi' and iiniiK'y ])aid over on all tluiuxfcu- tioiiH ai'coi'tling to tlirii' |iiiorit\' : IlirJ'iH v. //(///, 'J4 V. < '. I!, at jtagc -lS(i ; Hiiiir V. Jiu-ns, \',\ {'. v. 4!ir) ; 'linih >>/ Mnntnal v. Miiiiro, 'JH V. ('. II. H4; /)r/i)ils V. Wliithnm, li. II. !l (^). Ji. .'U'l. 'I'lici't! may l»' a ili.stivsH for nnt without actual Mi'i/nro : CnniKrv. Mi>/f, [-. It. rt (). \\. 'A'u. /V Shcrill' wont t(i defendant's lioiisc with an execution, ami merely jtrodueed the wairant, at the same time demandiu;.; debt, costs and poundaj^e, which were paid under protest; it was /" /'/ not to amoiint to a seizure .so ats to entitle the SheriH' to pouuda;,'e : Xiisli. V. D'lrknisnii, L. Iv. 'J (J. I*. '.'.VJ. Hut in Jiissir/.-s v. /inf/i ('nl/irri/ Ct,., '.' Ks. I). 171, it was lirli/ that where a Sheiill'.s ollicer in the execution of a warrant of ./'". y'c. went with another man to the (h^htoi^'s house, shewed him the warrant, au<l dinianded payment, and toM him that in default of payment the man must remain in possession anil further proceeding's would Ik; taken, tlie defendant then paiil the sum demanded in the warrant, which includetl pound.if;c ,ind oliii:ei'"s fee, that there had l>een a seizure which entitled the Sheiitf to [niundaj^c. As to \\ ii:it is an "actual seizure," see (llinhtiDiv v. I'mlirU-k, \,. I*. (» Kx. '1{)'.\. Moiu'N paid into ('ourt is not li.dde to scizui'c nnder execution wliile in the hands of the ollicer of the Court {('ii/rcr/i/ v. Siiii/li, 'i I'. ( '. L .1. (iT ; 4 U. V. L. .1. 177) ; l>ut it i.s submitted that a niortyau;e on real estate is: o l^. (J. ij. J. '24!(. Fixtures in defendant's housi; cannot lie sold under execution ( Wuni V. IiKjilliji, i> B. it Aid. ()■_'.■)) ; nor where fixtures have heen wrongfully severed 1»y a tenant : Furnuit v. TlKinipson, ,'» H. & Aid. 82(). lint utensils lixed by tlic di'fi'ndant f(U' the purposes of hi.s ti'adc, such ;is cop|)ers, vats, or the like, can l)e seized : //». So also can lixturcs which may be moved liy the tenant : Arc;!i. I'raot. l-th I'M. tio"). A liailill" should not purchasi! at a s.Uc coiuluctcd by him: see section I7<J, and 10 U. (!. L. .1. .S."). As to the sale arnl disposal of j^oods taken under execution, see .'{ U. C. Iv. ,T. S'^, ]()',i, I.*")!) and KM). If a Bailitr sluudil uonduct a sale negligently, and either jiarty shouhl sutler tlamage, he Mould be liable ( Wriijlit v. Vliihl, L. R. 1 ivv. J^oS) ; but ju'tual damage would have to be shewn: S'hnsoii v. Fariihiini,, \j. 11. 7 t^. U. 17^; H^hsoii V. Thtllmoii, 1.. 1!. 2 (}. 15. (■)42. As to the duties of a liailitl' on seizure, sec 3 L. C 0. 40. If the Judge does not give tin; defendant any time in which to pay the anifnnit ordered, executi(Ui can be issued imnicdiati'ly: (.U)ulhlii<' v. Tln' limil: of Mon/nol. r> I'. 1!.. I'A ; Sinlt/LV. Smi/h, L. Ii. !) |]x. 121. An execution should not be issued for the benetit of a stranger to the suit : (Imiilili' <t nl. v. liiissdl, i) (). S. W'-V.). An execution cainiot issue in the name of a plaintiif a executor without rc\'ival (Pror.tar V. ,/iirr!s, 13 II. C li. 187); but, if issued, can be executi'd after tlic death of the plaintitt'or defendant {J'olt v. Mai/ar, <(-c., uf (Iriinsvi)il, 7 < '■ 15. 777 ; Turner v. Patterson, 13 C. I'. 412; Johnston et al. \' MrKenna, 3 P. R. '-'•2'.)), oven if goods in the hands of the executor : Smith v. iiernie, 10 (J. I*. '243. .'Vn execution Inmx a Division ('ourt only binds goods from the time of seizure {Calludni V. MrDoirr/l, 17 U. C. R. 3.")!)) ; but as against a writ of ./f. /(/. in the hands of the .Sheriff, tliat execution takes priority which Avas first in either the Sheritl's or Railill's hands, and not by tlu; ])rioi'ity of the seizure : Mr OoikjcJI v. WaddcU, '28 (!. I'. 1!)1. Thi.s shews the necessity of the Bailill's endorsing not oidy the day hut the hour of receipt of execution, f(n' in such cases a fraction of a day would be looked at ; lieiknian v. Jarvis, 3 U. C. 11. 280 ; Conrerse v. Mi'-Jiic, Hi (,!. P. 1()7; sec, however, Whi/tev. 'J'rendwell, 17 1'. 488 ; /■Jninnw Jones, 3 H. & 0. 423. Moneys, securities for money, and choses in action, are only bound from the time of actual seizure either by Sheriff or Bailiff: McDowdl l;-(; ISMIC iiuoiint ii/nnl. i.ssiird :!.■<;). iivival cr tlif III'' •J'2',1). All ^(■i/.ur(' ill tlio uT tlie Kjall V. iiig not •tidii of rxe V. •<nis V. )ii, arc Do well s I'T).] WHAT r\s nK yi;i;?Kn. 111! Icr the seal of tlio (Juiirtu fieri f'acian to nno of the J?;iilills 17;-. V MrDuirrll, 10 V. C. Ii. .1. 48. A I'.ailitf cniiM not nii/c or sell tlic .'(iiiity of iidciii|itiori ill a Vi'hhi-I : Srnt/ v. Canrth i-f nl., 'JO I'. ('. K. IHO. IikIoi' an i'Xi-ciitii>ii jij^iiiiist tin; cliathlH ciF u iiiort^agor. tlic Hiiilill' can seize the riiri>i(.i oi till' iiiiirt;4.v^(i(l ^(>o(l(<, si» tliat lie in.iy cxikimc" tlieiii ti> view, altlinu),'li hi- i-aii soil iiiily tilt' i'i|iiity of i'eilt)iii|iticiii in tliem ; hi'l- Suii/h <'t til. v", ('iihi)iirij iiii</ /'iter- Inifdinili /'iii/irni/ ( 'iihi/kiiiii, ,'{ I'. |{. I \'A. Hut not wlii'i'i' ^joodis ai'e /'// t/ic /hikmi union III till' mortj;agct! ; Wafson v, lliti<lir>nin it nl., •_'■")(', I*. "lO'J ; Si/nair tl <if. v. I'lii'tiiiii, KS II. ( '. 15. ."(47. On .■III oxt'ciition a'^ainst one of two partiitTH, the ilclcinlaiit'.s int(MMHt in the partiuTsliii) proiicrty fan In; Hi'i/.eil ; Imt tlu^ riylit of |ini|pt'rty or posseswion of tin; otliiT partiu-r cannot lio iiitcifurcd witli {<Jnn.i v. /)'/(//, 1 Ap]>. II. 02, and casi's tlicri; citcii) ; ami tlio purcliascr would take tin; iiiti'ii'st of till! execution defeiidimt iw tenant in eoiiinion of tiu' i^omls : Kili/ic v. l)iiri<L(iii, '2 Doiigl. ().")(); /'iniriili/c v. Mr/ntus/i, \ (irant, .'((); W'il.iiui ct nl. \. V.iiji. '.'f If. ('. II. (i:}". ; AW also Uoi). it .los. Di^'i'st, 1421. hook del. ts cannot 111' sri/.cd under section 170; MrSiiin.ilihtn v. \Vili'<lii\ U. ( '. L. .1. 17. Money iii.'ulc under an oxeeiition at the suit of one man oaiiiiot lie retaiiu-d by the !>ailitl' tn meet aiiotlusr exei'iition in liis hand."* iti/uliist tlie same man : S/nir/if v. Li'ifr/i, '1 I,. .). N. S. I.S'J. .SJiould farm .Mtock lie transi'en-ed l>y -I. to //. on tlie terms th.'it .1. shiuild l)t) repaid 'ly a t,'reater speitiiied iiumlieT of t!ie same kind at a i"_it:iiii time, and liefori; tliat time an ext'cution is [ihu.'i"'. in a Ha:litl"s liand.s ;i,'iUiist /{., it is sul>mitt'.'d that not only would the stock which />'. uot fronivl., Imt its increase, he sei/ahL- : see /'((;-.s v. ('iirnill, 10 IJ. (.'. U. 220 ; 77/c South .lii.^l I'd linn Insiirtiiirr ('oiii/xnii/ v. /'inidrll, I.. It. 'A V. ('. 101. The ease jmt, wliicli is one common in the country, is iiothinjj; more than a sale (see report of the ii.it case at p,i,L,'e 100 ; see also A'c purtr Wliifr, In ir Xerill, L. it. 0( 'h. .S07) ; Imt if merely lent this would not he ,so : /)illiir<'r v. Doi/lr, V.i V. V. 1!. 442. If ;i iici'siiii hiiy an article from a tradesman, and aft<M'wardH see another article iif tlic same kind heloni^dn^ to the tradesman, which lie prefer.", to the oni; pur- cliasc.l, and which he hiiys by delivering b;ick the lirst one Jiud paying an iulilitional sum, but allows the article last purchased to remain an uiireasouahlo tiiiu' ill the [lossession of the tradesman, it is liable to be at;ized on an e.veeutioii against the latter : (.'arnit/irr.'! v. i'ri/iioliLt, 1'2 ('. V. n\H'}. One who frauduh'iitly ii'iiiiives goods to prevent their seizure is liable to an action therefor ; Yoiinij v. i!iirlii,i,(t)i, C. I'. 218; Tnnxr \. Pattn-smi, MW. 1". 412. .V person jmr- iliasiug a cro]) of wheat at a liailiirs sale might bring tresjtass against a person iiijining or converting it : /fniii/ou v. Cnnrfnril, 3 O. .S. "iSS. It was /n !i/ that a p 'rsiin's attending a Sheritt's sale and bidding on some of the goods did not (!sto]) him from suing tlie yiu'ritf, claiming the goods as his own : Liiic'i <'t nl. v. liniinji', 12 IJ. (J. K. 20!>. i^ini'ir: Would the principle of Frii'innii v. Coo/cc, ~ E\ {')7)4, iuul Loi(rL:-i V. MrSIm/, 2!)(!. I'. ')i, and that class of eases not. i,)ply? h ill an execution and the endorsements the iianu's of the jilaintiO's and defen- ilants ari! trausiioscd throughout, it is clearly irregular : Ditrhl.inii v. <!nni<ii\ •"> I'. 11. 258. A sale may be made after the expiry of an execution if seizure tiiiik ])lace while it was in force ; but if no seizure made during that time, then till' sale is void: Doc Urcin-'^hii'lds v. <iitrri>ir, ~i U. ('. 11. 2.S7 ; liiiinolds v. St,;dn; .3 P. II. .SI"); Ia'c V. l[owr.H, 30 IJ. ( I. R. 202; Hull v. (!<>sl,<' ,^f nl., l.'i ('. 1'. 101. A seizure by a BailitF before his removal from oth(.'e ou an execution then in force, would, it is submitted, sustain a sale by him afrer he had ceased tu lie BaililV: Dor Miller v. Tijtdii;/, ,■» IJ. C. IJ. 7i>. It would be highly improper, if nut a contempt of Court, for a Bailiff to make sale of goods after notice of insolvency: In re liri/anf, 4 Cli. 1). 98. 'J'liere is no warranty of title at a liailitr'.s sale {C/in/inKin v. S/ifllcr, 14 Q. H. ()21), unless the B.iilitf cxjjrcssly make one. It is (btfereiit in the case of private parties : lirmrn v. Corkhuru, Ti IJ. V. 11. 502 ; Wiliion v. Ma-ton, 38 U. C. R. p. 24 ; but see Citnili/ v. Lindnay, ;> App. Oas. 459. The purchaser gets no better title than the execution debtor t.- •/ . •! fL ■h t'HXt^fU^ '*. ■ " ■■'.'>'. *• . *• ^ll ■ J ^^\ 'i^„, ■■ < ' ,.■: , .. ' »■. . ." • hy-rii,:\ l^^ 4 •',■", , : :*:■ - «■ • -^ • r -r- i'- X. -T- ■.♦>,'!• , "»■••■.•. ■; "■ ■ ■; ■-, '■■, .*• > I . • •..-•-.;,-afe-SfV,v ':"■ ^'"Tll^npi^p ■.''.■■;iiif „V, •1-:-: 17G PRIORITY OP EXECUTION. [s. Wk of the Ooni't, who by virtue thereof shall levy by distress :-'*» had; an<l if lie had none, neitlior does the purchaser acquire any. Orowintr fruit cannot be 'icized : Roi/irclf v. I'hiHip.t, \) M. & W, ,")()■"). Ah to execution generally, Hee Rob. & Jos. DigcNt, \AV1, \MM\ \ Fisiier'« Digest. .SSL'8. Ahdiii/diniif'iit (111(1 prior'ilji of cxicnifiiiii.—Ou chattels iieing seized hy the Sheiili', and afterwards, hy direction of the ]ilaintitt"a Attorney, abandoned, it %Vii« //(/(/ that the execution debtor could then sell and give a good title to the goods : (loiihl V. White, A (), S. VIA. A chattel seized by the Shei'ii]', and lent l)y him before return of the writ, was In hi no abandomnent : /fitiiii/fon v. Jhiii<l\ ,">(). S. (5(U. A Slieritf, liaving seized goods under an execution, toi>k a bouil fcr tiic delivery thereof wiien he rt;i|uircd them, an<l allowed the debtor to remain in possession and carry on his business as before the seizure ; an<l while the di btin- so continued in possession, and after the return day of the writ had expiiiil, w. .jccond execnticMi at the suit of another creditor was received by the .*<herill'; it was liilil that tlie second writ took ]»re(!edenee of the lirst ; Castle v. Jiu'dii, 4 C v. 2')'2. As remarked by Macanhiy. < '. f., at ])nge 'J()(), in deli\ering tlic judgment of the Court, " The SheriH', in the absence of directions, acts u]i<iii his own responsibility ; and if he ado[)ts a coui'se which conflicts with the ri;:lits of others, he may incur responsibility to the first execution creditor, or to tlic second ; but lie haii no discretion to bond the goods to the debtor or sutler liini to continue the possession or use of the goods and to })roseeute his business with them as before, suspending and deferring the execution inilellnitely, and until long after its return, witnout furtlier acting upon it, and at the same time to interpose the; ex]iircd writ between the Mi-it of another creditor and the goods. ' After two inetl'e<'tual attenipcs by the Sheritl' to sell certain articles, wlncli lif C(nisidere<l chattels, he left them where they were ; the execution debtor removed and sold them. It was lichi that the seizure had not been abandoned, and that the Sherift might retake them : Walton ct al. v. J'lrrh. 14 U. ('. i\. *)-K). Where the plaintiH 's Attorney had ordered execution to ))e stayed, ami afterwards telegra]iiied the Slieriil' that he must a^t as he thought tit, it a\ as A< W that this answer was an abandonment of the stay : Honltoii et al. v. Smi/li, 17 V. (,'. iX. 4(H). The i^aihtt", having merely made an inventory of the goods seized under ajl. fa., leaving no one in possession, it was /idd that they were not in ruAtoilia Idji'^, and therefore coultl not be held again.st the landlord's claim for rent: Harl \. I'eiinalds, l.S ('. V. otH. A Sheriil', having seized goods undci' , in execution, and left them in the jiossession of the execution debtor upon receiving a receipt for the same, M ith an umli'rtaking to deliver them to the .Sheriil' when requested so to do, the landlord of the execution debtor h.aving in the meantinic seized and sold the gfxids for rent due him by the <lebtor, it was hibl, in an action by the Sheriff, that he had not at the time of the distress such a jtosses- sion of the goods as prevented the landlord from distraining for rent : Mclntiin v. Stiita ct al., 4 0. 1'. 248 ; see also Rohert.'^on v. Forliiiic, !» ('. V. 4'J7. boni; delay of a writ in a Sheriff's hands does not of itself amount to an abandonment of it, but it is evi<lence of it : iMeiii v. //all, 1.'? ('. V. 518. Taking an execution by a plaintilf to the "lerk for renewal, would not be an abandonment of it. /ioiir V. Jarrh, 13 0. T. 4!»r) ; Meucillji v. McKcnu'', 3 K. & A. 2(M). In an action against a Sheriff for a false return, it appeared that on the day l)efore the jdiuii- titf 's writ came in, he received tifi. fa. at the suit of one /v. for more than the value of the debtor's goods, and gave a warrant to his Hailiif, who only went to the debtor's shop and told him of it, because he thought more could be got hy allowing him to go on with his Ijusiness. On the iilaintitf 's writ he did nothin;^. The plaintiff's Attorney wrote twice, urging him to act and ruled him, and afterwards he returned the writ nulln hona. K.'.s writ having been previously reneweil, the Court being left to draw inferences of fact, it was held, as a matter of fact, that the Sheiitt' never stdzed ; or, as a matter of law, if he did, he had aboudoucd the seizure ; Fonter et aL v, Glasn, 2G U. C. 11. 277. A Bailitl' who ' 1 S, 156.] WHAT GOODS EXEMPT. 177 aiul sale of the goods and chattels of such party, being has withdrawn from possession of goods after seizure may again seize them if the writ is in force : Gates v. SiniOi, \'A ('. V. "'1. As to tlie difference between the rights of a suhsecjiient execution creditor, as in CoMlc v. Niittaii, and one who purchases from an execution dehtcn-, even after alianilonment of the seizui'e, hut irhlk the execution in in force, see tlie remarks of (Iwynne, J., at pages 470 and 471 (It I'J C. P., in McUii-eni v. McCaus/ninl et al. ; see also 5 U. (J. L. J. 250. In that connection it nmst l)e borne in mind tliat a Division Court execution (Idus not bind the goods before seizure (Culluden v. McDoii'eH, 17 LL (J. II. 359), whereas a writ in the Siieiiii's hands does. Where a writ was delivered to a Sheriff, with instructions not to levy until another execution came in, it was /(''/'/ that a subse(juent execution took priority : I'oxx et al. v. Jlaiiiiltoii, M T. 3 Vic. SuiOi a writ is not in a Sheriff. s hands to lie executed: FoMer et al. v. Smlih, n II. C. li. 243; /« re /.'iw.v, [\ V. W. 394. If the Bailiff is notilied not til jd'oceed to execute a writ, from that moment it loses its priority : Hank of Montreal V. Mnnro, 23 T. (.'. It. 414; see also Ki rr et al. v. Kiu'^ri/, lo C. P. .i.'H ; Truxt and Loan Coui/xini/ w C'uthhert, 13 (j rant, 412. A term for years cannot be seized and sold on an execution from a Division Court : Dutjifaa v. Kii.sun, 20 U. C. II. 316. A Sheriff cannot seize goods on execution alreaily umler the seizure of a Division Court Bailili': Kimj v. Maediinald, 15 C. P. 397. The fori'going cases are jirincijially <ni_//. ./W.'.v in the hands oi Slicrifls, but it is suhmitteil that the princii)les of them have a direct application to Division liiwrt execr.uions in the hands of a Bailiff, always kee])ing in mind that a Bailiff's right to the goods is by virtue of a nrntinuin;/ seizure. If a Bailiff should eiito ce an executio.i where he had no authority, he would }»e liable : Darin v. Mimre et al, 4 U. C. R. 209. in Lus.simj v. Je'nninif.s, 9 U. C. U. 400, a Bailiff I if a Division Court, having an execution agaitist J. L., went to him and seized ;i yoke of oxen, w'hich lie allowed him to retain on receiving liy indorseiiuut on the writ an acknowledgment of the levy, it was lull that tlie debtor had put it out of his [lower to sell the oxen. On an execution against A., money belonging to him in the hands of H. may be seized, but it must be shewn to be the ihntieuL iifiiiieii t)i A. : Clarke v. Eanton, 14 U. ('. K. 251. Action against third party f^H- ilit'^id seizure and evidence connecting him with it : see Slai/lit v. West, 25 L". C. H. .391 ; MrCterertie v. Massle, 21 C. P. 51(! ; Tilt v. Jarris el al., 7 C. P. 14"i; McLeoilv. Fortune, 19 U. C. B. 98 ; Kennedi/ v. PaUerson el al., 22 C. C. R. .")."iii ; Cron.sliaw v. Clatpin,in, 7 H. & N. 911 ; Woollen w Wri<jht, 1 H. & C. 554; \7/ (■(».>■ V. Pe,,uock, 30 U. C. R. 51. Ei''mplionn.— 'Y]\c following are the exemption clauses of caji. 6(5 of the iicviscd Statutes, and 1 ave reference to executions from Division Courts as well as other Courts. "2. fhe foUowing chattels are hereby d(;clared exem))t from seizure under any writ, in respect of wliicli this Province has legi.-^lative authority, issued out . 'if any Court whatever in this Province, namely ; 1. The beil, bedding and l)eilsteads in ordinary use by tlie debtor and his fauiily ; -. I'lie necessary and ordinary wearing apparel of the debtor and bis family ; .'f. One stove and pities, and one crane .and its aiipendages, and one pair of anilinnis, one set of cooking utensils, one pair of tongs and shovel, one table, fix rliaira, six knives, six forks, six plates, six teacujis, six saucers, one sugar li:isin, one milk jug, one tea "pot, six spoons, all s]»inning wiieels and weaving iiiDiuH ill domestic use, and ten volumes of books, one axe, one saw, one gun, six traps, and such fishing nets and seines as are in counnon use ; 4. ,\11 necessary fuel, meat, fish, H<iur and vegetables, actually i)rovided for family use, not more than suOicient for the ordinary consunijition <•!' the dclitor iii'l his family for thirtj' days, and not exceeding in value the sum of forty iollars ; 12 ■* I i*^-» -J ■ - . * ■ ; ■* . •'■ ■ ••■ >. • .' •■ > r ^ » . ' ,' ■^. ' '• " - ',»l*' ' ■ • •'■ '' ■ • ; , •'.'. . ■•»•.■'.»■• •,.„ *'• •;•■.., ■'.• : ^t. -, V. A'j;.fj5?>r,.-:-.;Jl *' '.''-'>•''' \ ■ .ii .^.i ■ ■■■■' ■■' 'f- ■■■■ .1'li* - » • 1 ■.>''',i. :■.«.*: ■■•;•.•• ■^^ 'JL. • ■» ■■•« 'i.*' v; ».♦••. .1 .y * 1 1 ■ ;<«, '•'i; *, • ■■ i *«' - 'l-V' '- - • 1 'fl' '"■>■■'^;• ijji .•,"•■•' ^vA ,€'■ - . 1 ■' ) . ■ r -<■.■ *■" V .■ ..»:".<■ • '■ !■' '■'• •~- ■■ ". / •'•■'.■* ^i- 'If*: •. ^ »--■;■'". - " ' 1" „• V-ri'.' V ' ■ "'v.? - ^1. '■' L ■■ ;, -^-iv; '■v;- i ; ; ■/,;,'■' -f,* ' T* " ' . • ■ ' • -I ^ " .' ;• • \ '>.*"■■ V, ■ ■•i<~t - "■,»,■.■ • -'ii ' ^ ■.-■■ ■. ■ . V * rfn. '". -.■ •-, ■ 'il!! ■*•'.;: = •■ ;■--■■ ■■;.. »• -y ■'-.' llll " . -'. -'. ■ 't " ■ ' -in ." ■t, ■ I J' . " . " e , i^?'! Ja-''^- >■'':'{ -■ '■■' '• W • '•,'■■ ^, • ."' ';■'. : ^^i,. "I - ■i"^' ■'«^ y-.^^\^:m " ' 'v >j'! • ■"•<'' ' • . ' ^ ' ■!»' ' ■ „ ■ *t ■.■^'^*'< .: :-' 4-?|l .1.. '. •^:0-^ . -f:',, * ■••-.'fc'? ■ ■• i.".-i X- C 'C-fei Mi m 178 WHAT GOODS 1 XEMPT. [s. 156, within the Coimty within which the Court was hoklen, sudi 5. One cow, four .sheep, two hogs, and fooil therefor, for thirty flays ; 6. Tools and iniploments of, or chattels ordinarily used in, the debtor's occu- pation to the value oi sixty dollars. 123 V. c. '25, s. 4 (1 — 6). )^ee. '28 \. c, 25, s. 3. 7. Bees reared and kept in hives to the extent of fifteen hives. 28 V. c. 8, 8. 2. Sr.i:' L'cr. St<tt. c. m, s. 2. "3. The said chattels so exemi)tfrom seizure as againi^t^^ a debtor shall, after his death, be exempt from the claims of creditors of the deceased, and tlie widow shall be entitled to retain the said exenipte<l goods for the })eiietit of herself and the family of the del)tor, or, if there is no widow, the family of the debtor shall be entitled to tlie said exempted goods ; and such goods S" exempt as aforesaid shall not l)e liable to seizure under an attachment against the debtor as an absconding debtor. 40 V. c. 8, s. 27. "4. The delator or his wiilow or family, or, in the citse of infants, their guar- dian may select out of any larger numljer the several chattels exempt froui seizure under this Act. 23 V. c. 25, s. O ; 4() V. c. 8, s. 28. "5. Nothing herein contained shall exempt any article enumerated in sub- divisions three, four, five, six and seven of the second section of this Act from seizure in satisfaction of a debt coutractetl for such identical chattel. 23 \'. u. 25, s. 5 ; 28 V. c. 8, s. 2. " 6. Notwithstanding anything contained in the four next preceding sections, the varicms goods and chattels which were, jiriorto the nineteenth day of May, 18()(), liable to seizure in execution for debt, shall, as respects debts contracted before the .said day, remain liable to seizure and sale in execution, provided that the writ of execution under which they are seized, has endorsed uixui it a certilicate, signed ))y the Judge of the Court out of which the writ issues, certifying that it is for the recovery of a debt contracted before the date above named. 24 V. c. 27, s. 2." A Ijoat in lawful use by the owner, though not a fisherman by calling, i.« exempt from seizure under execution: Dariu/h v. Dunn, 7 U. C. L. .1. '-'T.'i. The Exemption Act does not bind the Crown, and, as was generally supiio.seJ, did not apply to an absconding debtor: licij. v. Davidnon, 21 U. C K. 41. Hut under 40 Vic. c. 8, s. 27 (sec. 3 of the R. S.), absconding debtors' exeni]ttioiis are not now liable to attachment. If goods exempt are seized and sold, tlie execution creditor is not entitled to the money, but the execution del)toi would be : M'lrliU' v. Jici/no/df^, 24 U. C. II. 303. A horse ordinarily used iu the debtor's occupition, not exceeding in value .$60, is exempt (Danil.<on V. lieijiioldti, 16 C. P. 140) ; but if worth more than .iJ60, it i« not excni]it : McMartin v. Harlburt et al. 2 App. R. 146. And what the horse brouglit :it the sale is not the test of value, but what on the whole eWdence he niigirt fairly l)e worth : Jb. At the time of the sale the horse was covered by a chattel mortgage, given by the plaintift" to one M. ; it was held that defend- ants could not set tluat up : lb. As to exemptions generally, see 7 U. C. L. .1. 13, 108, 114, 262 and 281. Settbu/ aside an execution.— An execution would not be set aside because issued by the Clerk at his own house before office hours : Rolker et al. v. Fuller, W U. C. R. 477. An irregular execution will not be set aside at the instance of a subsequent creditor a stranger to the execution (Perrin v. Bowes, 5 U. C. L, ■!. 138) ; but if judgment and execution fraudulent, they can both be set aside at the instance of a subsequent execution creditor : Balfour v. Ellison et al. 8 U. C. L. J. 330 ; see also Commercial Bank v. Wil.son, 3 E. & A. 257, and R & J. Digest, 1612, et wj/. ; (firdlestone v. Brighton Aquarium Co., 3 Ex. 1). 137. If previous execution fraudulent, yet it would be Bailiff's duty to seize; Dennis v. Whetham, L. K. 9 Q. B. 346. lU! .. ifi. Ui;.- ,«> ,•« ss. 157, 158.] CROSS judgments may be set-off. -v^«'-' 179 sum of money and costs (ry) (together with interest thereon from the date of the entry of tlie judgment) as have been so onlennl, and remain due, and shall pay the same over to the «ai(l Clerk. C. S. U. 0. c. 19, s. 135. 151. If there ai*c cross-judgments between the parties, Cioss-.juii«- ■' _ _ ^ iiieiits limy the party only who has obtained judgment for the larger bo set-off. sum shall have execution, and then only for the balance over the smaller judgment, and satisfaction for the remainder and also satisfaction on the judgment for the smaller sum sliiiU be entered ; and if V)oth sums are equal, satisfaction hhall l>o entered upon both judgments (r). C. 8. U. O. c. 19, s. i;u. 158. Except in cases brought under the sixtv-tliird Writs of „ , . . . . ', , .'«,.. /i./"-, where section of this Act, no writ in the nature of a writ oi fieri to be 6X6CUt(G(l. facias or attachment shall he executed out of the limits of (7) A ])laintilf' who has recovered a judgment for debt a^d cf)sts, and has received the debt out of t'ourt, is entitled to liave an exeeutioii for eosts, and a maiiihiiniix wouhl l)e granted to the (Uerk to compel its issue : Jli'ij. v. Fh'trlin; '2 E. k B. '27{) ; In re JAwlni and infc v. JJnrhaiiau. L'!) L'. (J. j{. 1. It was decided in Lairfonl v. P<trfri(f(/<', 1 H. & N. tVJl, tliat where a (.'ounty Court Judge had no jurisdiction, he had no power t(, award costs. 'I'lie same prin- eiplc was recognized iu Peacock' v. The Queen, 4 C. H. N. S. '2()4, and liromn v. Sliivr, 1 K.\. ]). 425 ; and in our own ('ourts, in Powleii v. Whiteheiui, 16 U, C. R. 58i>; Campbell v. Daindmn, !!♦ U. C. K. 'I'll ; Nicln.'lU v. Luitilji, 1() C. V\ 1()0 ; and //( re Khajxton Fleetion, Stewart v. Mac(/<>ua/<l, 41 U. C. II. at page ol.S ; but was disregarded in Great Northern CominUtee v. Inett, 2(1. B. 1). 'J84, where Bromi V. Shaw, ifu/mi, was cited in the argument. In the case in 2 Q. li. D. the ((uestion was, whether an appellant had complied with tlie conditions iiiiI»osed l)y the Act, allowing a case to be stated by tlie Justices of the Peace. [t was admitted that he had not, Init argued that the Court, not l)eing seised of tlie case, had no jurisdiction, and could not grant costs. Cockburn, C. J., says, "The respon<lent is entitled to avail himself of this objection, and he is oblige(l to come here to inform us of the absence of jurisdiction ; for if he did not, the objection wouhl not appear, and judgjiient would be given against him. As he (s ohliijed to come here hi/ the act of the appellantH he is entitled to lii-i costs. It is clear that to some extent there is a jurisdiction over the subject matter, for the i.ourt has jurisdiction to hear and determine whether the appeal will lie or not. I am of opinion that under these circumstances there is jurisdiction to give costs. That being so, it seems to me to make no difference in the practical result whether the respondent comes to inform the Court of the objection liy means of a separate application, as in the present case, or at the. heariny. " It is submitted that the opinion just quoted is that which will ultimately be recognized as law : see also Lilley v. Harreii, 5 D. & L. 648, as to the duty of the Judge to inquire into the question of jurisdiction. (r) This is simply applying the principle of setting off judgments : see Lush's Pract. 328; Arch. Pract. 12th Ed. 723, 726; Rob. & Jos. Digest, title, "Set- off;" Throckmorton v. Crowlei/, L. R. 3 Eq. 196 ; Mercer v. Graves, L. R. 7 Q. B. 499; Fisher's Digest, 7771! #v-l"- •■■1^ '••'>•' '^i ■r ■ : ■-'■ -i^^-'X^':. - . ; -■■'■^.-/..-^ ^V V ';.•' :.««^. .•■>,•■•.■,.. :1 :.* . ;•'•'■ fc.- •,.'-■>•' •■■■> ■- .». ■ •■■■ . X • ■'■' • • •» ■ • ' ^'. ■ It. ■ 1 •. *'►.• ! I -' ■ i'.- !■ V- •, i 4. ,^ .« ',. .'■ ; V.-'. 1 . •'■ f^Viii- r'«*»'>V.*i .'V- s*:'^-'- , ■». ';■'■' * ■ ■■ ' ■•* ^ '-■ ■ . ■ ,. - ^t# - 1- :. < • .. t • ' V"?-:-'' ■. J. .:• *j<-' ; . . „ ■ - if : - .' ' ,■;■ ,4; *-".*.■;• •, , ' ' • •' , ' ^1 ' ' •a ■ f. . ■ .. • "'■ . ' -" ''>■■." ;>'*-■■ . v-'iv.if:'.?-.:^-v... . ■■' '- ' ■■ . , .IS, . ■•• ' * 5u ;^ . - tJ» ■* ' 'i^ ■■■:';. ■:.:^V''^n.c ■ •; 'l ; , ■• . '-^ "•.':*;.■;■ -^ ■ -,•.■-■ 1. » 1 ■ V" ■*.">-■■'■ -■ «>■ ^* *■*;■'.<'..■ "•T^^ ■■ '^*■^■:^'-l■ ■fv"* ■ **.:-■♦ A-' -. - ^ ■ . „*%i- ■■ ■' ^ « - *.;■ ,f- ■; ■ - '■•! " ■ •# ■ ■ .. ■■,-»' • , ■• -^t ■■ V^ ■ . ■ ♦ ^; ■''-'^'- - j|' :,1Mh 1 I-,,,-;,-; .• ..tSjJi •*,♦,-:' i:,'?,*-!:- ''. , ■.■'"■^i-"V. ty I '"■'^'■, r' ^.iy.-'M ■■■ „. ■■■■«•■ ■■V*! ■ . %♦ ■''•3.' -M'^i'^^i.--'4, ti ' " jfu 180 EXECUTION DEBTOR MAY PAY CLERK OR BAILIFF. [sS. 159-lfil. the County (s) over which the Judge of the Court from which sucli writ issues has jurisdiction, C. S. U. C, c. 19, 8. 136. If party roinoves to iinot' ir County, executidn obt'iimible in siicli County. If piirty. bet'oiu; sale, jiays to Clerk or Bniliffof Court out of wliich exocMition issued, execution to be superseded. Clerk of any Court in wli'ch judgment entered to 150, In case any party against whom a judgment lias been entered Tip removes to another County without satis- fying the judgment, the County Judge of the County to wliich such paity has removed msiy, \ipon the production of a copy of the judgment, duly certified by the Judge of the County in which the judgiuent has been entered, order an execution (t) for the debt and costs, awarded by the judg- ment, to issue against such party. C. S. U. C. c. 19, s. 137. H>0. If the party against whom an execution has been awai-ded, pays or tend(irs (u) to the Clerk or Bailiff (r) of tlie Division Court out of whicli the execution issued, before an iictual sale of his goods and chattels, such sum of money as aforesaitl, or such part thereof as the party in whose favour the execution has been awaixled agrees to accept in full of his debt, together with the fees to be levied, {iv) the execution shall thereupon be superseded, and tlie goods he released and restored to such party. C. S. U. C. c. 19, s. 138 161. The Clerk of any Division Court sliall, upon tlie application of any plaintiff or defendant, (or his agent,) having an unsatisfied judgment (x) in his fiivour in such (.s) It its execution sliould Ite .attempted out of the County, the Bailifl' would be a trespasser : Ditrk v. Aloorc ct al., 4 U. C. R. *J09 ; CamphcH v. Cuulthnnl, '25 U. (J. U. (i'21 ; Dar>/ v. Jo/umjii, 'Ai U. C. I^. 15.3. (t) The provisions of this section are very seldom resorted to. Proceedings by transcript under sectiou 1(51 is the usual course. ((0 See notes to section 8(5. (») The Bailiff would only have authority to receive it if he had an e.r/.s//;*;/ execution in his hands : 5 IJ. C. L. J. 82 ; Prvaton v. Wilmot, 23 U. C. 11. .'US'; Kero V. Pomdl, 25 C. P. 448. {\u) Sliould the proper fees he tendered and refused, further proceedings by the Baililf would render him lialvle as a trespassfir : Bdimtt v. Bayes, 5 fl. & N- 391. As to what are proper fees, see the tariff. It may he said that a return of nulla bona does not entitle a Bailiff to mileage : 5 U. C L. J. 82. There can be no inilea<re where money is not "made" (5 U. C. L. J. 181) ; nor can there be poundage unless there is a "sale ;" see tariff and notes to last item in schedule of Bailiff's' fees. (x) Where the defendant is under commitment and actually imprisoned on judgment summons proceedings, it is submitted that the judgment couM not under this section be considered ' ' unsatisfied :" Ja uralde v. Parker, 6 H. & N. 431 "w\^cT k ^ i i*'i v^l^- s. 162.] TRANSCRIPT TO ANOTHER DIVISION. 181 (lourt, prepare a transciipt of the entry of such judgment, prepare and shall send the same to the Clerk of anr other Division thereof, to *' _ triiiisiiiit to Court, Cv) whether in the same or any other County, with a «">• "tiier ' ^'" . "^ "^ . Division certificate at the foot thereof signed by the Clerk who gives Court {he same, and sealed with the seal of the Court of which he is Clerk, and addressed to the Clerk of the Court to whom it is intended to be delivered, and stating the amount unpaid upon such judgment and the date at which the same was recovered ; and the Clerk to whom such certificate (s) is addressed shall, on the receipt of such transcript and certificate, -enter the transcript in a book to be kept in his ofiiee for the purpose, and the amount due on the judgment according to the certificate ; and all proceedings may be taken (a) for the (enforcing and collecting the judgment in such last mentioned Divison Court, by the officers thereof, that could be had or taken for the like purpose '-"oa judgments recovered in any Division Court. C. S. U. C. c. 19, a. 139 ; 32 V. c. 23, s. 25. 163. Iii case of the death of either or both of the parties Revival of r^. . . -^, .1 juJgjuent ia to a judgment in any Division Court, the party in whose case of favour the judgment has been entered, or his personal jiintyto iepresentative (b) iu case of his death, may revive such judgment (c) against the other party, or his personal representative in case of his death, and may issue execution thereon in conformity with any Rules which apply to such Division Court in that behalf. C. S. U. C. c. 19, s. 140. ()/) Tke transcript can now be sent to a Clerk in the same County. Formerly !t was not»o: see Con. Stat. U. C. cap. 19, sec. 139 ; 10 U. C. L. J. 35. (2) See Rules 160 to 103 inelusive, and Forms 98 aud 100, and 8 U. 0. L. J. 67. (a) See In re Perkins Beaeh Imd Mining Company, 7 Oh. D. 371. The Clerk to whom the transcript ia sent iias no option but to enter it and take proceedings upon it, whether rightly issued or not : 8 U. C. L. J. 67. The Clerk of the liome Court cannot move until he gets a return to the transcript, and the Editor of the Law Journal ie of opinion that even then it is better to have Judge's order : 6 U. C. L. J. 84 ; but see 2 L. C. C. 15, and notes to Kule 161. (A) See liules 155 to 157 inelusive, and Forms therein referred to. It may be revived against an executor de son tort: Kejena v. O' Ham, 1(5 C. P. 435. That was a revivor before judgment ; but it is submitted that the same principle clearly applies. As to the subject generally, see Har. C. L. P. Act, 408, et seq. ; Arch. Praet. 12th Ed. 1J22; Luah's* Pract. 59-140; Bob. & Jos. Digest, title, " Scire facias and Revivor." (c) The Court has at all times power to look at its own records and to take notice of their contents, although they may not be formally brought before the Court by aflSdavit ; Cravea v. Smith, L. E. 4 Ex, 146. h- ■ • ..•.-:»;j:;'-'-'/.-tl s . ^ s- -hi' ■'."■> ■?': : ;■■■■ ^^'yi'■^:}\ ■ ■ ,, r ~ • t . *•;' ^ * Xi% .'.•■^ "i ^•■'■'':-"-'-:Ji-.v *' ■' :>.*';;a ■,.>!*! ■■:;.,■••■ . '^ '•: ', •}<•■.■>"■ ■•."'11 C:--^.' • .•■.;»..•; , ' ••.,'".■•<■*■•;• -. ■ * '■'*•■ • -•«■ ..'.1 ■'' *•' J * <.'•;■ ,■':■ t'.-.i.' ■ .•*.'■■' .'1-., ■■ '. ■■■ ' •;.;■'*• ■;^-?-.?:-v,S--f-,. j :^?-?,s ■;■.«<;■ , : ' |--r«tt^ <,,.•;;■. '•'t.'aA-'O-t ■."/; ■■'■■ ,?. ,.J v.. •-■■A'*'..-^---; ■ . ly ' • <*t.«i;;.;x- .J WW ■ *; ■ .* .' ■ ';■.•'•:.-'• V' » ."*.■'■'- ■•■ « ♦ ->;»u .itr.':;. ^:;-' " •<.■■■>■ .iV'^^j^'i I ■ ■-■.■•'■% ^i ■:••;■ •ir^'X, :.'^-:Ji\ '\ ■ -' ■ ■■' ii?iil'-:." 182 Execution, whi;n (liitoil and retiirn- ;ilpk'. 4/dx^ Ql^t^^-9<Zu^ Rev. Stat, c. 66. WHEN EXECUTION IS RENEWABLE. [ss. 1G.3, 1^4. 103* Every execution shall he datotl on the ckiy of ifn issue, (J) and shall be returnable within thirty days (e) fioiu the date thereof, but may, from time to time, (/) bt^ renewed by the Clerk, at the instance of the execution creditor, (ry) for t hirtyrd ttys from the date of such renewal, in the same manner and with the same effect as like wi-its from tlie Courts of Record may be renewed under the pravisions of The Act respecting Writ^ of Uxecution. C. S. U. C c. 19, s. 141 ; 32 V. c. 23, s. 24. .tujigr' iruiy 104. In ctise the Judge is satisfied upon applicjition on exeeution to Qa^h imide to him by the party in whose favour a iudonicnt issue before , . . . J o regular day. has been given, or is satisfied by other testimony that such party will be ir> danger of losing the amomit of the judgment, if compelled to wait till the day a[»pointed for the jmyiuent thereof before any execution can issue, such Judge may (c/) See notes to- section 51. ((') The (lay of the issue is excluded, and a writ issued on the 24tli of Aj>i'il was hcfd in force on the 24th of May {Cfm-kr v. Gan-rft et at., 28 C. P. T-i) ; Imt it is diSei'ent with a _/?. fa. in the higher Courts : Bank of Manfreal v. Tai/lor, 15 C. P. 107. The etfeot of tiie decision in Clarke v. Garrett et at. is, that tlie first renewal would expire on the 2oth of June ; and as the same words are used as to renewal as are relative to the origiiial (Uiration of tli* writ, every renewal, if made on tJie last day, would make the returu-day a day later every moutli. As to form of renewal, see Knle i58. (/) It may be renewed more than once from the words here used : see jSfi'ilton v. Jarviii, 13 C P. 17<). An exet-utUnt cannot Ixt renevmi teken such writ Aa.v been acted U]wn or hvji made : Ih,, and cases there cited. Clerks and Bailiffs should keep this in miiul : see also Milter v. Bearer Jfutunf F. fns. Association, 14 C. P. 39!>. Nothing can legallv be done imder an expired writ ( Wcstun v, Thomas, G U. C. L. J. 181 ; Garikner v. /«.so», 2 K. & A. 188) ; aad a sale l)y the defendant of his goods would cut out the execution creditor, or .any <'«& claimrog under a supposed sale on such writ: Carroll v.. Lnnn, 7 C P. SIO; Buffalo and Lake Huron Jioilwaij Companij v. Brook,sl)ankn, \Q U. 0. 11. I^iT. {(f) The too common practice of Clerks renewing executions at the instance of Bailiffs, or of their own mere motion, is entirely unwarranted and of no legal effect. The same view will he found expressed at pages 175> 176 of 5 L. ('. (i. It is doiihtful if aji execution creditor could ratiSy such an act : Brooh v. Himk, L. R. 6 Ex. page 95 ; WcMuh v. Brown, 43 U. C. H. 402 ; Turntr v. Wihuir 23 C. P. 87. Certainly not, except done wiihin the tinie for which the renewal was Daa<le {Ainncorth v. Creeke, L. R. 4 C. P. 47<») ;, nor perhaps at aU : Tatilor v. Aitu<ne, 19 C. P. 78 ; Prina; v. Lewis, 21 C P. 63 ; Patterson v. FuUer, 32 \J. C. R. 240. The authority to the Clerk to is.me execution would not imply a right to renew it. The unauthorized renewal by the Clerk of an execution, even if such could be ratified, would not affect the rights of other creditors before ratification : Ainaworth v. Creeke, supra. ^m s. 165.] PARTIES MAY OBTAIN TRANSCRIPT. 183 order (h) an execution to issue at such time as he thinks fit. C. S. U. C. c. I'J, s. 158. |(»5. In case an execution is returned nulla bona, (i) and i' execution ^ rctiiriKMl the sum remainini' unsatisfied (k) on the iud^ment under """" ''(""»■ . . ■ ^ , » liiiiti.'s may winch the execution issued amounts to the sum of forty n'ltaiu (lolliU's, tJie plaintiff or defendant may obtain a transcript [h) It is Sjuljmittod that, as this is a matter in tho (llxrrftion of the Juilge, he can graufc the order I'x parte, Imt such iliscretioiv " imist be exerciseil within the limits to which an honeat man conijtetent to tlie discharge of his office ought to conliue himself:" Maxwell on Statutes, 101. (/) If the execution should expire, nothing having l)een done on it witliin the thirty days, any supposed return of iinl/d houu, after that time, Mould not be available nnder this section : see notes to section 1(53, and particularly, Lcr v. limci'i' t't al., ,30 L^. C II. 202. Should a seizure he made within the thirty (lays, there could be no renewal of the execution {Xri/.son v. Jdrri.'i, 13 C F. page 183, per Draper, (5. ,).); but if on sucli seizur(! part of the money was made, and nulla bona returned as to residue, there could be a transcript umler this section for such residue, provided it amounted to forty dollai-is or upwards. If no execution was issued from tlie l)ivi»ion Cimrt tljere coud not be a sale of tliu (lefeudaut's lands : Biiruixs v. Tulhi. 24 C P. ")-t!). And if a transcript of judgment is sent from one Court to an(»ther, under the IGlst section, a retvirn of Hitlla bona to an execution issued from tlie latter (Jourt would not be sufficient. The execution in the Division C'(»urt ninat be issued from and returned to that Court in which ju<lgraeut was oriifniallji obtained : lb., pages o.jO and "mT. If execution against more than one defendant, the goods of all should be exhausted before a return of nulla buna : Ontario Hank v. Kerb//, ](i (J. V. 35. {k) This means the whole or any balance reniainiug unpaid on the judgment, whether debt or debt and costs. The costs of recovering the judgment when taxed by the Clerk and entered in procedure ])ook are as much part of the judgment debt as the principal money or damages recovered. It is sul)mitted tliat uuder section 7, by which judgments in Division (Courts are ma<le to have "the same force and effect as judgments of Courts of Record," that interest on the anicmnt of the judgment can be estimated under this section. It is also submitted that costs of execution are part oi "the sum remaining nnsatistied ou the judgment." The costs of execution are chargeable against the defendant, and he could not mtiM'n the judgmcmt without discharging such costs also. So also would costs of a judgment summons. By section 241, it is declared that the llules and Forms, when approved off, "shall have the same forc<! and eflect as if they had been made an<l included in this Act." On referring to tlie form of transcript to the County Court (Form 0!>), it will be seen that reference is there made to Form 98, in which the "amount due " is maile uj) of the deltt and costs of the judgment, "afA/i7«o«a/ costs," and additional interest. The addi- tional costs there referred to can only mean such as costs of execution and other autliorized proceedings. It would be ancunalons that a ]>laintitf' should be obliged to issue an execiiticm before he could transfer his cause to the County Court (Burgess v. Tulljf, sitprti), and then that the costs of doing so should not form '*art of the amount of his unsatislied judgment. This vie»v is very much strengthened by the fact that the entry to be made by the Clerk of the County Court, uniler section 1G6, shall contain the names of the parties, "the amount of the judgment, also the amount remaining unsatisfied thereim," which amount can only be got by the Clerk on reference to the total amount of judgment, iutertat aod subsequent coats appearing ou the transcript as unpaid. I- ,' , 'S'-r^.',-. • i . \■■\'d'm'■^.^ • r.i: \4.i- ■■■'«•■■ .ri^i?-' *, ■ ■*•;>■ • , > <l ", l>; '. •■.*. ;-■ Ft" K-M^-'i' ■'. ,1 Jm ■ ' *. " .'■ ■ *,■■«}; ■■■yf :>■ v;-^,i ■w:<..«v '•?. .. ,; ■ '. ''--^ i' » - * -1 1 • •■•1 if ,,■;*;■"'"'' ■ •..:'■,■■>. •■„»•-»( ■. its '■•-■' --4. T . .. ^>-:.^ .«-t-'! .< -'■'.■:'V->--'i :;-■ ■^■■:V^-i-^' ■■■^l^rnt-' ■■: ':*^,'f-^' •J '^m^^i ' :M ■ ■ 'v*,,; '.', •',■'■; y~!" ' J"" .."•a ■'.■,. '■„,. :. ■- 'i--:* '■■m .■■>..■■.. ^'€::' ..I*? .■•'HvB:.^;i •v. i-'\''l ■'■:■;■ -.-, ■.■■'■"^.■^ ..■.■• •n ■• ■,• ' - ■ ■ ■ V * * ■■ Tj 184 TRANSCKIPT TO BE FILED. [s. 1G6. of the judginont from the Clork, under Ixis hand and sealed with tlie seal (^l) of the Court, whicJi trtmscript shall s(!t forth, 1. The proceetlings in the cause ; (in) 2. The date of issuing execution against gootls and chattels ; iind 3. The Bailiff's i-eturn of mdlct bona thei-eon, as to tlm whole or a part. C. S. U. 0. c. 19, s. 142. Upon fliiiiR 160. Upon filing (n) such transcript in the office of the office of Clerk of the County Court, in the Cour^ty where sucli judg- Coint Clerk, ment has been obtained, (o) or in the County wherein th(» {leju'igiiieu't defendant's or plaintiff's lands ai"e situate, (p) the same shall become a judgment {g) of such County Court, and the (Jleik of that Court ■^^''.:- (I) See notes to section 6. {m) It was held, in Farr v. KoMhh, 12 C. P. 35, that there could he no valid judgment in the County Court or sale of lands founded on a transcript wliiuli omitted to state the issue and return of an execution in the Division Court hi Jncomb v. Henivf, 13 C P. 377, the sale of lands was Itebl void, because tlu- transcript from the Diviaitm Court only contained a certificate, sljcwiug the Court, tiie names of the jiarties, that judgment had been recovered, and whou, the several amounts of debt and costs, that execution had issued, and was returned on a certain date • but no mention was made of the proceedings anterior to the judgment. If the transcript does not shew that the pi-oceediiigs in the Division Court were commenced by attachment (if such was the case), the whole proceedings on such transcript in the County Court are void : Ilopi- v. Graoes, 14 C. P. 393. (n) The ti'anscript must lie " filed " before the proceedings constittite a judg- ment of the County Court : see Rohtion v. WaddvU, 24 U. C. R. 574 ; Lee ft ai V. Moi^mv, 25 U. C. R. at page 610 ; Mat^rath v. TmUl, 26 U. C. R. at page 90 ; see Rules 160 to 163 inclusive. It should be marketl "filed" by the pro])er officer : Cainji/xdl v. Miuiden, Dra. R. 2 ; but see Kefj. v. GouM, Mich. T. 3 Vic. (o) That is in the Court where judgment was originally recovered : Burnesa V. Tally et al. 24 C. P. 549. (p) It is safer to file tlxe transcript with the County Court Clerk of tlie County where judgment was recovered, because, if it afterwartls appeared that the debtor had no lands in the County in which it was filed, the whole procieedings would, within the principle of the cases citetl in the notes to section 1 (55, be void. Besides, in the event of requiring to prove a sale of lands, the fact of the defendants having had lands in tlie County where transcript filed would pro- bably have to be proved : see cases noted under sections 53 and 54. iq) The defendant is liable to be examined as to his estate and effects on a judginent so recovered, and where in such a case he refused to attend for exauii- iiation a ca, sa. against him was upheld, although the amount was under )$1(K) ; Kehoe v. Brown et al. 13 C. P. 549. Perhaps in that case an order for commit- ment would have been the proper remedy : Wallis v. Harper, 7 U. C. L. J. 7- ; Henderson v. Dickson, 19 U. C. R. 592 ; Ward v. Arni.'itronfj,4F. R. 58. Ureat care aliould be observed iu the preparation of the trauaoript under these aectioiis, ss. . 167-1G9.] BECOMES JUDGMENT OF COUNTY COURT. ISO of such County Court sliall file tlie fcransci-ipt on tlie day ho receives the same, and enter a memorandum thereof in a book to be by liim provided for that purpose, which memo- I'iindum shall contain, 1. The names of the plaintifT and defendant; 2. The amount of the judgment; 3. The amount remaining unsatisfied thereon ; and 4. The date of filing ; for which services the Clerk of the County Court shall be entitled to demand and receive from the person filing the same the sum of fifty cents. C. S. U. C. c. 19, s. 143. 107. Such book shall at all reasonable hours be accessible f;"""*/, , , (r) to any person desirous of examininc the same, upon the '"'"'< *.'• )"' payment to the Clerk of ten cents. C. S. U. C. c. 19, s. 144. 108. Upon such filing and entry the plaintiff or defen- Parties may daiit may, until the judgment has been fully paid and juaginuut in satisfied, pursue the same remedy (s) for the recovery thereof Court. or of the balance due thereon, as if the jiulgment had been originally obtained in the County Court. C. S. U. C. c. 19, s. 145. interest mort- 160. On any writ, prece])t or warrant of execution Tiifi i '' - . ijf a r ajjaiust goods and chattels, the Sheriflf or other officer (t) to «"«'" '" ° ° ' _ ^ ^ ^ gdods iiiort- wboni the same is directed may seize and sell the interest or gagtd muy "^ hv scild in ecjuity of redemption (u) in any^goods or chattels of the party execution. in view of the authorities referred to, and every Attorney would consult the best interests of his client bj- a careful examination of it before tiling. It ia safer to issue a ^'. fa. goods in the County Court in analogy to the ordinary course of proceeding in that Court. It was decided in Kehoc v. Brovm et al. 1 .3 C. P. r)49, that the transfer to the County Court has not the effect of allowing proceedings against lands merely, but is for all purposes a judgment of that Court ; and in that view, it is submitted that the ordinary course of proceedings in the County Court had better be taken. But see 2 L. J. N. S. ."iS. As to the effect on the Division Court suit, see notes to section 161 and Rule 161. (r) The Clerk would not be obliged to place his books and indexes in the hands of any person making a search, but might do so in his discretion and on his own responsibility : lie Webnter ami Registrar of Brant, 18 U. C. 11. 87. Compare Rom v. McLay, 26 C. P. 190. (s) See 4 U. C. L. J. 275, and notes to sections 165 and 166. {t) This includes a Division Court Bailiff, («) See notes to sections 156 and 170. -■;■>■' '#. ■.i J y\ '..-••v ; -■'' * ■:■■. /■_ ■ ■ ■ : r.'. •ii » '•- *- *■'' '■ t- ,v-i K «,-V ■/y^;^ '•'* , ■ ^4^. '.i- •f^-- ^ !*'< v'^ vi >l ; * .; . .■■•■■'J *, . • " ■ ■.'*;■. ' ■ . • ,■ '■ " }' i <■' ■ ..'■:'• ^■'i^ V.-^^'^'' • & - M . .s'. ■■■■ '', .*»• ,•'■♦;'<*».'".;,• ■ > •-? ^v^-^<.?^\ 4 ^.■^v^.m-i -^- ■*•*.■>■' ' ■- ' :i 'V.V ■■'■>;'*' il"- "* vn ^' ■■ .■;'<• '• &;.« v. '*-i' y-'i- J pr, ■ ^pppi f..„"r . ,■ . t- .V- ;.•'■■ V ^'..•■vri:\ ;■■■.■• • '•.i' J.' i ''it- ''.'■--.. - ■■ '•■, • ... " * . ■,•■■„«■■• 'i.f, -., ■-;..*= . 1 ■** • 186 WHAT MAY BE SEIZED. . 'K ;';..■■■ :v* 4 -Sit! : " ' ;.•' [s. 170. against whom tlio writ lias issued, and sucli sale shall convey wiiatevor interest the mortgagor had in such goods iiiid chattels at the time of the seizure. (J. S. U. C. c. 19, s. 150. Wlint iiiiiy '■'^;. Ht''»' ., 1 10, Every Bailitt' or oHicer having an execution against iiiKicnxciu- the goods and chattels of any ])erson, may by virtue thereof (ion iiKiiinst , . '' ' ' J J HcMxi.s ,111(1 seize and take any of tlie goods and cliattels (v) of sucli iior- son, (except tliose winch are ' y law exempt from seizure,) {lo) and niay also seize and take any money or hank notes, and any cluvpies, bills of (exchange, promissory notes, bonds, specialties or secui'ities for money (a;) belonging to such person. C. S. U. C. c. 19, s. 151 ; 23 V. c. 25, s. 2. ((>) See notes to seotion 150, {w) 8ee notes to seetiou loG for a li^it of articles exempt ; also see Rev. Stat., page 800. {x) Tills power only applies to moneys set apart and ear-marked : Woml v. Wood, 4 (i. B. H07. Money seized under an execution is ex.actly in the siune position as money tlie proceeds of goods sold : CuUhiiiridfie v. Piixtoii, 1 1 ('. IV (583. CluMiues are seizal)le though in the hands of another, c. </., the Aecoiuitiuit- (leueral of the Court of CMiiiiieery : Wdtfs v. ./cjl'cri/cs, 3 Mac. & (I. 4'_''_', ,S(i also is a policy of life assurance : Slohw. v. Cowan, 30 L. J. Ch. 882. Any title deed, even if pledged with the debtor for a loan, or a letter or a guarantee for .some collateral act, or any other deed or writing, which could not form tiie foundation of an action by the debtor himself for a specific sum of nioiusy, cannot be taken. But it would seem tliat all instruments containing an uiiciui- ditional covenant or agreement for payment of a specific sum of money to tlie execution debtor for his own bcnelit are within the words " other securitius for money," and may be taken : Arch, Pract. 12th Ed. 1553. The word "money" here used means specilic gold and .silver coin, bank or government notes, anil not debts due to the defendant : Hn)-r'i!<on v. Pdi/nto; G M. & W. 387 A surplus in the Bailiff's hands, after satisfying a former execution, even at the suit of the same i)laintiff, cannot be seized as m(mey : H(in-'m)ii v. Pai/nfi'i; supra, and FleldhoHse v. Cfuft, 4 East. r)10; Sharpe v. Lc'drh, 2 L. .T. N. S. 132. Nor would such money be stayed in tbe Bailiff's hands to satisfy a present execution : WU/oivh v. Ball, 2 N. R. 370. (xarnishment would be the remedy in that case : Lockart v. ilraji, 2 L. J. N. S. 103. Money in the hands of a third person as trustee for the defendant cannot be seized unless it be the exact pieces of coin or paper of the defendant : Jiohinsuu v. Piece, 7 Dowl. 93 ; Wood V. Wood, 4 Q. B. 397. So money deposited in Court in one action cannot, when the defendant is entitled to have it paid out to him, be paid out to an execution creditor in a second action : France v. Camphell, 9 Dowl. 914 ; Jur. lOi), s. c. It would seem that money in a defendant's i)ocket no more than clothes on his back can be seized on execution : see Hunhulf v. Alford, 3 M. & W. 248. Books of account cannot be seized : McNamjhton v. Wehxter, 6 U. C. L. J. 17. A money bond for the conveyance of land is seizable by a Bailiff : lieg. v. Potter, 1 ( '. P, 3'J. So alscj is a fire policy after a loss has taken place and money has become jxiy- able thereon, even though the amount has not been ascertained; The Bank of Montreal \. McTavish, 13 Grant, 395. The property mentioned in the latter part of this section is only bound from the seizure : McDowell v, McDoirell, 10 U. C. L. J. 48 ; see also notes to section 150 ; Fisher's Digest, 3828 ; Rob. & Jos. Digest, 1412; Lush's Prac. , 595; Arch. Pract. 12th Ed. 652. 88, 171, 172.] n.VILIFF TO HOLD SECURITtES. 187 111. The BailiH" shall for tho Ixninfit of the i)hiiutiff, ""i'/trto liolil (//)auv cluHjiu.'H, hills of exchan''o, in'omissory notes, <''i''i>"'«. Itoiids, spi'cialtios, or othor secui-ities for moiitiy so soizfitl or mi/ci uhcUt takt'ii as aforesaid, as security for tlie amount directed to ho i""i '"im 'it (il iilaiulill. levied hy the execution, or so much tliereof as has not been otherwise levied or rais(!d, and the plaintiff, when tho time of payment thereof has arrived, may sue (c) in the name of tilt) defendant, or in the name of any ])erson in whose name tlu; deftsndant might have sued, for tlie recovery of tho sum or sums secured or made i»ayal)le thereby. C. S. U. C. c. 19, s. 152. iVi, The defendant in the original cause sliall not dis- nff.niiontiii diarge such siut (a) in any way without tho consent of the «imsf nottc pliiiiitiff or of the Judge. C. S. U. C. c. 10, s. 153. Hi'iit!""^'" (//) After the Bailiff lias made the seizure, it would he advisable for him care- fully to prepare a list of the securities seized, siiewing their amounts, dates, when and l)y whom payable, and to give notices to the different persona liable (111 tlieiii of such seizure. He should also advise tiie execution crt;ditor of w hat lie lias done, so that he might the better determine whether he would proceed (III them or not As regards such securities as might not he due, tlieir dejiosit ill the < ilerk's safe, or some other safe depository, would boa prudent course for tlie Bailiff" to take. If the execution creditor should not within a reiusonable time determine to take proceedings upon those overdue, and the others as they be- come due, it would be the duty of the Biiiliff' to hand them back to the debtor, for .-ihduld he he negligent in th'at respect, and the debts due upon such securities l)u l)arred by the .'"'tatute of Limitations, or lost otherwise, the Bailiff' and his sureties would undoubtedly be liable. Shtmld the executi(m creditor's elaim and all costs be satisffed out of the proceeds of the securities seized, or dis- charged in any other manner, it would then also be the duty of the Bailiff" to restore such of the securities as rem.-vined ia his hands to the execution debtor. Bank stock eouhl not be considered "money," or "other securities for money," witiiiii the meaning of this and the next preceding sectiim ; (hjlf v. Kiiipc, i^.U. <S l'^(i. 4'A4. Neither would shares in a building society or other eorporaticm : ('i)Uins V. ('ul/iiis, L. R. 12 E([. 4")5. On this section generally, see 1 U. C. L. J. 181 and 182: Hopk-ins v. Abbott. L. R. 19 Eq. 222. (:) As to the notice that should be added to the summons, see Rule 15: Add. on (Jon. 7th Kd. 313. The action must be lirought in the name of the defendant in the original suit, or in the name of any person in whose name the defendant mij,'lit have sued : see 4 U. C. L. J. 226. If cpiestioned, the pnweedings justify- ing the action might have to he proved : McDonaJil v. Mr Uoimhl, 21 U. 0. R. ri'-. A defendant could not set up matters that occurred subseciuentl}' to the Jcfn V. Daif, h. R. 1 2 0. P. 51)3 ; Brh/htan Provincial Im. <Jo., 20 Wilson V. Gabriel, 4 seizure and notice : Dcnniwn v. Knox, 24 IJ. (J. R. 119 Q. B. 372; Watson v. Mid Wales Railway Co., L. R. Arcade Co. v. Dowlini], L. R. 3 (/. P. 175 ; Chishom v. 0. P 11 ; De Pothoriier v. De Mattes, E. B. & E. 461 B. & S. 243. (a) See notes to section 171. The suit would be subject to all the equities between the execution debtor and the defendant : In re. Natal Invest ruent Co., h. li. 3 Gh. 355 ; Rodger v. The Comptoir D' Hscompte De Paris, L. R. 2 P. (J. • ,' V . ■ %.-■ ■■. . •v. • ' • • 'i'-':},i '*'■• •■■■J, . '. * ' ■ ■ ■ i .' '■'i. ■■■^5v,S •"V', ■ •* .f '■''■' t . V. ' • J» ,. ■•.-•1. ■ ■■'■ ■■■•::■. ■^■;i\^.. .11^ , »■ ^ .1* 1H8 SECURITY FOB COSTS. [88. 173-17:). :-:^^^ »*• '■i:i'-*<x. '■■.'■■•^1 .-..-J'^^' H -?:V1 ... •';;ii:^''-'j'-;' v- ■ ' ■'■■^'.- i' ■■v.-: ■■'■■■ S*"- '.*•'• Tlio pally wisliiiiK '•> ('iiriiii'i'iiiii.'<t Necuru ciiMtH. Overplus. Hniliff after SciZMIf iif yipiids 111 I'li- <lnls(' iliitc of Kciziire auci i;\vv. iKiticu of sale. fioodsnotto l)e Kolil till after oiglit illJ, Tlu) party who dcsin's to enforco jmyirKMit of am security seized or taken as aforesaid, shall first pay oi secure (/>) all costs that may attend the proceedinjij ; and the nion(*ys realized, or a sutticient part thereof, shall be pnid ov(>r l»y the otKcca* receiving the san>e to ap|)ly on the pliiiu tiff's tloniand, and the overplus, if any, shall he fortliwitli paid to the defendant in tl»e original suit, under the dinr tiou of the Judge. C. S. U. C. c. 19, s. 154. 114, The Bailiff, after seizing (c) goods and chattels liy virtue of an execution, shall endorse on such execution tlic date ((/) of the seizure, and shall immediately, and at least eight days (e) before the time api)ointed for the sale, give pul)li(' notice by advert.-.dment signed by himself, luid put n\) at throe of the most })ublic places (/") in the Division wlicic such goods and chattels have been taken, of the time aiul place within the Division when and where they will be ex- posed to sale ; and the notice shall describe {g) the gooils and chattels taken. C. S. U. C. c. 19, s. 155. 1T5; The goods so taken shall not be sold (h) until the expiration of eight days at least next after the seizure thereof. 393. A discharge given after seizure and notice would be set aside as a fraud : Sargent v. WeiHnke, 1 1 C. B. 73'2 ; Ex parte Games, 3 H. & C. '294 ; h'awstunn V. Gandell, 15 M. & \V. 304. (h) This is declaratory merely: Auatery. Holktnd, 3 D. & L. 740; Spicerv. Todd, 1 Dowl. 3()G; Lush's Pract., 225. (e) See the notes to section 15G, and especially Gladstone v. Padwick, L. K. 6 Ex. 203. (d) See also notes to section 156. (e) "Clear days :" see notes to section 70. ( f ) The policy of the law is to realize as much as possible out of a defendant's goods ; and for that reason the statute prescribes the most public form of adver- tisement. Notice for a less time than eight days, or indeed no notice at all would not invalidate a sale honestly conducted otherwise, but would oidy sub- ject the Bailiff to an action: Campbell v. Coulthard, 25 U. 0. R. 621 ; Paterson V. Todd, 24 U. C. R. 296; McDonald v. Cameron, 13 Grant, 84 ; ShuUz v. Jied- dick, 43 U. C. R. 155 ; Trent v. Hunt, 9 Ex. 14 ; see section 230. {g) This notice should be of such a character as would give intending purchasers and others reasonable information of what was to be sold, and of the time and place of sale. (h) If sold before the eight days, the sale would not be void, only irregular : •ee notes to section 1 74. The days of seizure and sale are both excluded ni the ealculation of the "eight days" here mentioned: McGrea v. W. M. F, Ins. Co., 26 C, P, p. 437, and notes to Bection 70. s-i 170, 177.] nAiMFF xoT TO prnoHASE noons. 180 .'ii '■• miloss upon the ronurst in writiii'' (/) under tho luuid of tlio ''">'" '")*'; |»iii*ty whoso j^oods Imvo bot'ii seiztnl. C. S, LT. C. c. ID, h. l.')(). »«iziire. 110. No (Hork, liiiiliir or othur ofticor of any Division Riiiifr nnii ., 1. 1 II I" il • !• il ^f^ I 1 /In oHll'MllllfCrll ( iiiuT. sliiill, (lircotly oi' indiroctly, (^) purclmso any goods (l) not t,) pm or I'liiitteis at any sale made by any Division ('onrt Bailiff st'i!cou!'" * under execution, and eveiy such i)urc'hase sliall he al»Hohitt'Iy void, {^in) ( '. SJ. U. 0. c. 19, s. 157. See also liev. Stdt.c. 1(5, s, '27. E.\A ,11 NATION OF JUDGMENT DKRTORS. 111. (w) Any party having an unaatistied judgment (o) .Uv^izmrni 1 • i\- • • "^ 1 I i !• 1.1 \ i' 1 1 J. 'li'l'tms limy (ir Oilier ui any Uivision (.ourt, tor the paynientot any dent, iw , ximiiKii liauiMgos or eosts, ( p) may procure from the Court wherein Ntnnlvot tlie judgment has been obtained, (7) if the defendant resides or t,,'i«' (1) Slioulil the dohtor assent liy Wf)rils or conduct, he would be estoppfd Cioin s.ivinj,' tliat tlie sale w;w irre^^ular : Frcciium v. Cooke, *J I'lx. (>.")4 ; />'• hit.tsr/ii'v. Alt. S Cli. I). -JSi) ; Uosi'oe's N. I*. HI) ; Curr v. h. A- X W. llaUwo,, V,,., L. It. IOC. I*. .S07. biitainc'iv .sulmiihsioii to tlu' injury, or even a voluntary jiromi.se aftir the Hale not to seek rcilre.ss, would not eato|) him ; some conduct, .aniount- iiiy to rdc.'isc or accord and .satiyfactiou, would have to he shewn : jn r Thcsigcr, L. .)., at pai^e .SI4 of 8 <'h. 1). Ac([uicacence at the time of or after the alleged wrong ia very dili'erent in its legal eli'ect : lb. (k) That is either by himself or some secret agent on his behalf. (/) A pulilic ollicor who has the sile of goods cannot propurly perform his duty It interested in tlunr purchase : see Ktii<i v. NikjIkiiiI, 4 H. &, 8. IH'2 ; W'tllidms V, (in-!/, -JSC. v. .")(51. (//() The word "void" here does not mean " voidable merely ;" Maxwell on statutes, 1!I0. ill) This is what is commonly known as the "Plst clause." This is not the pliioj to discuss tlic projiriety of retaining it on the statute hook. l''or discussion i)f tint ([ucstiiui. and the merits of the e.v.imination ch'uiscs giun-ndly, the reader is referred to •> U. 0. L. .1. l-_'l ; ,S V. C. b. J. 14-J, l.V.» iuid ITS ; .") U. C. L. J, '1?1 ■ () II. V. L. J. ,-), :v.), 7.Sau(KS.-> ; 7 U. ('. L. J. I'J, KSand I fJ ; !) ('. ('. L. J. I '.'I ; and 10 U. C. L. J. '2'M and 'i.')!). The section was taken originally from the Knglish .Statute of 9 & 10 Vic. cap. 9"), section 98. ((/) See notes to section 105, and Kar. (/. L. P. Act, 1^91. (;)) In the higher Courts tliere could not at one time ))e an exaniiTuition for I'ostsonly: /fcrr v. DoniilasH, 4 P. H. 124; Wnlkcr v. Fairhoini, P. U. '2i)l ; ^■■Inii-ii/rr V. Ajincin et a/., P. R, page .S40. Now see Afr/.iir/i/iii v. lilnrkhnrii, 7 I'. 11. 287. Under this section there can be an examination for costs oidy. The deht or damages ov costs being more than .$100, does not [irevent an e.\anunation : Byrne v. Knipe, 5 D. & L. t)59. ('/) The summons must issue from the Court in which judgment has been olitained if defendant resides therein or within that (bounty ; hut if he resides ill iuiother County, then the suit nuist be transferred, under the l(>lst section, to thu proper division in that C'ounty, and ])roceedings taken there : see 1 b. C. O l'»2. It is not necessary that exeeuticm sluiuld issue befoi-e this jn-oceeding ciiii he resorted to by a judgment creditor : Peck v. McDvu<j<tll, 27 U. C. It. 300, i-'t ' r.r,..v..i| ■>^ , ,.t"X> -i.",,t,,. I * 1 ■„' , I •.' '■.V •■: •P;'-' ■. A. ; . . , *. ■■ -.1 :■ ■ -.'• , < •-■'•^JviJ-i-'.'-j'l: :.i\,.i--t,.j.: 'i •■ •■ •• . ',, ■'■■i'r'i'-' V-i ■ '■ :i-:?. , :. -/^ .* > T* ■« <■< . ■■-'•■if- ■''•'■ ■ I "• .■/ ■■' 4 > " ■•• •:■■.-*.'.■- ■■^. •■';■ .■■■:'^\-^\'- .■,■•'•.: « n ;•' .X ,- ' r T ■*'-^'» ■ • -*. »■.•■-" ■ if .. •- -t-i*^ ,* '•>■ ■' J*"«''*'';':;;.:ii.'': -•■ ■■-■.■:/►,-=-'>•,,; • .;>.•■; • V •■■'^■.■v\f"V - • ,' ■..>■■:.•>--••■ ■ ■'■'•*ai'!;.'J'-'- v' ■ .V .# 190 EXAMINATION OF DEBTORS. [s. 177. carries on his business \vitlun the C'^uhlj 'u which the Divi- Bion is situate, or from any Division Court in any otlier County into which the judgment has been removed under the one hundred and sixty-tirst section of this Act and within the limits of which Division Court the defendant (?) resides or carries on his business, («) a summons (t) in the form prescribed by the General Kules or Orders from tiim- to time in force relating to Division Courts, and such sum mens may be served either personally (w) upon tlxi [mtsou to whom the same is directed, or by leaving a copy thereof n.t the house of the party to be served or at his usual or last place of abode, (y) or with some grown person there dwell- ing, (<o) requiring him to appear at a time and place (x) The words of this section closely reseniljlc tlie 3()4th section of theC T.. I'. Act: and one woidd have t.io.ght that the necessity for attempting to make tlie dilit by execution Would he the necessary preliminary of a judgment summons : Smitli V. Afcdi//, -A IJ. C. h. J. i;U; Har. C. L. T. Act, 890. Tlie attention of the Court does not ap}>ear to have been drawn, in />(•^• V. AfcDouijall, to the cases establishing tlie practice in the Superior Courts, or as being applicable to tliat case : sec, however, section KS8. Jf such a proceeding should l)e vexatimisly taken, it is prol'able tlie plaintiff would be visited witii the costs of it. W licrc proceedings in the suit were taken against the M'rong man, and judgment sum- mons issued, see Walkij \\ M't'onntH, 13 Q. B. 1)03. [r] This does not api'ly to a corporation, nor can the directors or ofliicers lie examined under this .scctitni : DirkKnn v. X<<ith (ind lincon I'aUwuy i'omiiaitij. L. 11. 4 Ex. 87. Contrast section laO, cap. 50, Rev. Stat. (s) Sec notes to sections (5'J aiid "2. {I) A summons under this section and (me for the conimencen\ent of the .actidii cannot issue together ; Bishop v. Ho/nifs, 4 U. C. L. J. 235 ; see section 188. {it) See notes to sections 0'2 and 72, and Rules 85 90. ((') See also nctes to sections 02 and 72. («') See also section 72. It will be observed tliat the words of this section differ from those of the 72nd. Under this section service would probably be consideri ,1 good if a cf>py of summons was sim])ly " left .at the house " of tlie defendant ; but it would lie advisable for the Bailiff', in all cases whore pcrsoii.tl service could not be effected, and where there might be some grown iiji person residing at the defendant's last place of abode, to serve that person. The affidavit should be carefully prepared. It might (being entitled in Court and cause, &c.,) be in these words : "That I did on the day of , A. I). 187 , serve {(7. I).) the above-named defendant in this cause M'ith the annexed (or within! summons, by delivering a true copy thereof to and leaving it with {E. F.) he (or she) then being a grown i>erson dwelling at the usual (or last) place of abode of the said defendant, at the of ." If the summons cannot be served a return with the reason in writir.g must he made by the Bailiff : see Rule 90. (.r) " n»ere is nothing in either the language used or the context to shew that the examination is to be made in the Judge's chambers at the County Town, «ad it would be a great hardship to bring parties there for the purpose if a ^^%y' ss, 178-181.] EXAMINATION IN JUDGe's CHAMBER. 191 tlun-eiu expressed, to iiuswer such things as are therein iiiuned, and if the defendant apjiears in jjursnance thereof, he may be examined upon oath touching liis estate and eft'ects, and the manner and circumstances under which he ooiitracted the debt or incurred the damages or liability which formed tlie subject of the action, and as to the means ami expectation he then liad, and as to tlie ])roperty and means he still has, of discharging the said debt, damages or lialiility, and as to the disjjosal he has made of any property. C. S. U. C. c. 11), s. IGO. lis. The pei"son obtaining such summons and all wit- And wit- uesses whom the Judge thinks requisite, ( >/) may be ex- amined iipon oath, touching the eiujuiries authorized to be made as aforesaid. C. S. U. C. c. 19, s. IGl. ITO, The examination shall l>e lield in the Judge's Tlip exmni- iiiifioii t<i tie cliainber, (^) unless the Judge otherwise directs. C 8. U.C. in .JmiKe's . . ,, (.liaiiihiT. c. I'J, s. 162. ISO. The costs of such summons and of all proceedings Tiio msts 1 11 I 1 1 • 1 ^ \ 1 i piiividedfor, tlipreon shall be deemed costs m the cause, (ji,) unless the Judge otherwise directs. C. tS. U. C. c. 19, s. 163. IHI. Incase a l)arty has, after his examination, been Party ex- (li.scharged by the Judge, no further summons (ft) shall issue Ui.>(luugeii iliscreticm existed, liut it (Idea not. Tlic i)arty is suninioued to Ik- and appear at tlio place wiiere the C'ourt is held, in the divi.sion in which it issues ; and tlieic is iio authority to reiiuire iiim to appear elsewhere, for tlie order in respect til the matter niust be entered by the Clerk iu like inamier as any other order of the (,'.mrt:" 9 U. C. L. J. 101. (//) Where the defendant cannot or will not give a full account of his circuni' stances, other witnesses can he called to shew the facts. (:) Without this provision the examination would have to he iield in open Court: Xdiilt'-d'ilhiKiii V. (liristopficr, 4 Ch. L). 17.S. " Tiie simple uliject of the eiiiutinent is to prevent needless exposiu'c in ojjen ('ourt, and to give authoritj'' to hfild the examination in private ; and the practice in every Court we have kiKuvledge of is to allow the general public to ile])art after the ordinary business is over, and to make the Court room the Judge's chamber for the time l>eiiig. " 9U. C. L. J. 101. {(i) Costs in the cause mean the costs of the ordinary proceedings in a suit: Cniwron v. Qnnphi'lt, 1 P. U. p. 173. The costs of exaniiuation proceedings are b^' this section to be "deemed costs in the cause," »«/('«.s the .Fudge otherwise directs, Whtre jiroceedings are taken in a cause vexatiously or w.-intonly, or without any reasouatile prospjct of eliciting anything favourable to the creditor, it is sub- mitted tliat ^he Judge wouhl exercise a reasonable discretion in refusing costs. (b) That io a summons of the same character. ■> .^ .'.i ■■ '^ ' ■ ^Cm u " - • - • 'J ^,^■^ ; '''•' • '■ .i .'•■ ! 1 .! * . • ... ; ',' »'■ ' ■ :k'-' ,: ,' : ^^v. "-•■. ;:,•,.•■■• . _,: .- ■» « •-■ >V 1 m. ,^ . . ■■•4,'-».. < % - *U '*. . ■'.- 1 V -: •.'..•'■ ■,- ,-.' J ■*■♦.' , •1 :•* ..^ ^r: ;- ; y ■■■>■..»■■ >••■.■; ■', . * : * •• -t . .\. ■-. ' - *. . .' ^e-' •■'•'"■'' . . *;. ■. ■ ^ ^p •„ » ■'>.;>: , ■?•>'■ -■•■. 'i- »t •',i.. •.11 '■"..'ii'lS-. .• ' ■ ■ ' - '"_';!.*, ";,'.■.■-.■>■*, i .••■■'.".■ i«* ■>:*.' ■'-.■ "1 •■•.■ -.-!;:'■» «!; ■>':-"•> .■...; * '■'■-'■ ^ - , - tV , ■ .ii .• «f •"-. - . '1 •■■;;-...,VV-!i^r.^;:;, -.. J.- -.iff „'. V .^ ^- V •;''-<"i^'^,:VA • ■*,'■.'• ■^■- ».'■•■• 7V'--.,'«, ,, .r. 192 CAUSES OF COMMITMENT. [s. 182. lint to he .i^.ilii siiin- IIIOMi'll, L'X'Ullt, &.C. Ci)iiso- (inciii-e of iii'HU'i't or ri'fus.il to attend. out of the aame Division Coui't at tlie suit of the same ov any other creditor, (c) without an aflidavit satisfying tlio Judge ujjon facts not befoi*e the Court upon sucli exaniiuii- tion, that the party had not then made a full disclosuio of his estate, effects and debts, or an affidavit satisfying tlic Judge that since such examination the party has acquired the means of paying (f/). C. S. U. C. c. 19, s. 1G4. 181?, If the party so summoned — 1. Does not attend (e) as required by the summons, or allege a sxiffi.cient reason (/") for not attending; or 2. If he attends and refuses to be sworn or to declare any of the things aforesaid ; or 3. If he docs not make answer touching the same to tlie satisfaction of the Judge ; (g) or 4. If it ajipears to the Judge, either by the examination of the party or by otlier evidence, that the l)arty, (a) Obtained credit from the plaintiff or incurred tlie debt or liability under false pretences, (A) or by means of fraud or breach of trust, or {r) It is no part of the Clerk's duty to know whether or not a suninioiis is in violation of this section. The debtor should bring it to the . Judge's notice. {(l) These are the only two groitmls upon which, if substantiated byaliidavit, the Judge would l)e warranted in granting an order for another summons. The section does not apjily to a sununons from (uinf/icr Division Court, but does to the case of any other creditor in the same (!ourt. (f") The Judge should see from the atlidavit of service that the defi uil'iut is called (Ui to appear on the summons ))efore proceeding. The atlidavit should lie duly entitled in the Court and cause under iJule 13.S. It should also sliew tliat the judgment debtor lias been served "ten days at lnaM before tlie day on which the party is rei^uired to appear," under Rule 85. By the same rule, service any time befcn-o the day apjKiinted for the api»earance of the debtor "may he deemed by the Judge to be a good service, if it shall be proved to his satisfaction tliat such i»ai'ty was about to remove out of the jurisdiction of the Court :" sue tiie English practice, at page 144 of Davis' C. C. Acts. (/■) It is submitted that paynn.'ut of (!X])ense3 is not a sutticient reasou for not attending: contrast section KJO, ea^i. 50, llev. Stat. Illness, it is submittcil, would be : /{<' Jacobs, 1 H. & \V. Pi.S ; liaa>^' v. Firtlu L. U. 4(1 P. 1 : Rohbwm v. DnviHon, b. U. (5 Ex. 26;t ; R<'ij. v. IW'/.liwj.'^, 3 q. B. I). 4'2(). ((/) As to satisfactory answers, see Schiu-ider v. A(jU('w et ah, P. E. 33o Lnnon v. Leinvu, 6 P. 11. 184. (/() Credit must h.ave been "obt.iincd" or the debt "incurred" by false pre- tences, and strict legal proof of it must be given : see 3 U. (J. L. J. 196. " In ordinary parlance, we speak of obtaiuiuy money or property by false pretences « • "♦. •y< ■■• 182.] JUDGE MAY COMMIT DEBTOR, 193 (b) Wilfully contracted the debt or liability without having h<ad at the time a reasonable expectation of being able to pay or discharge the same, or (c) Has made or ca\tsed 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 5. If it appears to the satisfaction of the Judge that the party had wlien summoned, or, since the judgment was ob- tained against him, has had sufficient means (i) and ability to pay the debt or damages, or costs recovered against him, either altogether or by the instalments which the Court in which the judgment was obtained has ordered, and if he has refused or neglected to pay the same at the time ordei'ed> wliether before or after the return of the summons, the Judge may, if he thinks fit, order such party to be com. mitted (k) to the Common Gaol of the County in which the party so summoned resides or carries on his business, for any period not exceeding forty days. C. S. U. C. c. 19, s. 165. as indicating the criminal offence of obtaining the same by false pretences -with intent to defraud:" per Harrison, C. J., in Crawford v. Bmftif, 39 U. C. K. page 29. As to fraudulent acts justifying commitment, see 4 U. C. L. J. 12, 61 ; 9 U. C. L. J. 121 ; WinLs v. Holden, 1 L. J. iN. S. 100. (i) This must mean with reference to the necessities of the debtor and his family. Equitable estate can be looked at for the purpose of determining if the debtor has had sufficient means : Bennett v. Poivell, 1 .Jur. N. S. 719 ; 24 L. J. Ch. 736. Where a debtor h,is parted with his property fraudulently, see Kidd V. O'Connor, 43 U. C. R. 193. [k] A party ordered to pay a sum recovered against him, and who has made default, and, upon being examined on a judgment summons, shews no sufficient excuse for such default, may be committed to prison forthwith ; l)ut if the Judge iirders him to pay the money at a future day, or in default to be c<mimitted, and the party again makes default, he cannot be committed without an opportunity of l)eing heard as to the cause of such default : Ahleij v. Dale, 10 C. B. 62 ; see Ef parte Kinning, 4 C. B. 507 ; Kinnimj v. Buchanan, 8 C. B. 271 ; Baird v. Slonj, 23 U. C. R. 624. A conmiitment on a judgment summons is in the nature of a limited or qualified execution, and not of x punishment for contempt : Dakin-i, Ex parte, 16 C. B. 77. In this case the commitment was for contempt in not aj)j)earing on judgment summons. Payment of the debt and costs would seem to entitle a defendant in such a case to his discharge from custody : per Williams, J., at page 95 of 16 G. B. This appears somewhat inc(msi&tent with Daries V. Fletcher, 2 E. & B. 271, cited on the argument, hut not referred to in the judgment of the Court. A <Ufferent rule prevails in our liigher Courts : Hendermn V. Dickson, 19 U. C. R. 592 ; Ward v. Armstrong, 4 P. R. 68. Judgment for debt and coats was given against B., and an order made to pay by instalments. B. made default, and a judgment summons was issued, upon which he was ex- amined and committed for seven days, upon the ground tliat he had the means of 18 »...■■ »•■»-•■ i,*..- '■ \ , ' i^B»'* ■! •■•■ :*■ /* ■ ■ , £., V. v» ,' Jj. <^;; '," •« • '.. -v. ■^" " '. .#■■ ■-■*.. ■ - . ... .V ■'•■. Vi',.^ ' ■> ■' ■ -"^ '. .-•;■ j-C:-..«^v , ; ■■• ''-li.'Kr:-- • «'■.•• 194 DEBTOR TO Bfe TWICE SUMMONED, [s. 183. ; - . t J,- ^ .. ■ , "„, -.f:;, J-.l ■■■;- ' ■^:, ,.-:.■.;■« ■•■• vJ 4. .-,, ■'■••"v';. '-'^ *'-^., ■'■.i'-'^r''*-.'^'--- ■».*-' ■ * m * .•.,■, ■'j'.^ii'- ' r: ■'■^;if ■ .V. . ••♦. In what (•.iscs only the i)arty siinmiontid may l)e com- mitted for non-attend- ance : costs allowed him in certain casca. 183. A party failing to attend according to the rei|uire mehts of any such summons as aforesaid, shall not be liahlc to be committed to gaol for the default, unless the Jiulgi; is satisfied that such non-attendance ia wilful, (I) or thut the painty has failed to attend after being ta a aec so summoned ; and if at the hearing it appears to the Judge, upon the exami- nation of the party or otherwise, that he ought not to have been so summoned, (in) or if at such heainng the judgment satisfying the judgment and refused to do so. He was subsequently summoned and committed two several times for forty days, each on the same grduiul. Held, that there was power to commit for <a default of the same kind as often as default is committed : lioijci', In re. '2 E. & B. 521. A warrant of commitment, stating that " it a^jpeared to the satisfaction of the Judge that the defendant had obtained credit from the plaintilf under false pretences, and had made a gift, delivery or transfer of his property, with intent to defraud liis creditors, and thereupon the Judge by a certain order did adjudge, &c," not being iii the nature of a conviction, is not had for stating in the alternative the mode by which the otfencu was committed; Pitnli/, Ex parte, 9(1 15. 201. Wiiere a defendant does not attend on judgment summons, and a warrant of commitment is issued in consequence, payment made to the idaintiiT was Ix'hl not to prevent the executi(m of tiie warrant, it being contenq)t : Dnvles v. Fletcher, 2 E. ifc B. 271 ; see Ex purte O'Neill, 10 ('. B. 57 ; but see Dakhia, Ex parte, 10 (.'. 11 77. An oi'der on which a warrant of commitment was founded, that defendant pay the debt at a future given day or lie impri.s(;ued for thirty days, was held liail ; J)eic-i V. Rlh'n, n C. B. 434 ; 4 L. C. (i. 05. It follows, from Ahleij v. Dab; 10 C. B. 02, and the case just quoted of Deirn v. Bllei/, that if the Judge postpones the ordering of commitment of a defendant after examination, he uui.st have an opportunity of being again lieard : see also Bullen v, AfaDi/ie, \',\ C V. ]'H> ; 2 K. & A. 379, s. c. ; Maxwell on Statutes, 325 ; In re Hicks, 5 P. R. 88 I5ut if in the presence of the defendant, the Judge orders his commitment, then there is no necessity for any other summons : Bitlrd v. Stnrij, 23 I'. (,'. R. 024. ( )ne who does not reside or carry on business in this Province could not be committed : Jiei/an V. McGreeri), 5 l\ R. 94. An m-der of commitment u]ion non-payn)ent cannot be eml)odied in tlie original order to pay : Ex parte Khin'nnj, 4 C H. r)()7; see further, notes to Rule 101. No valid commitment ctmld l)e made on a judgment summons issued from any Court, except that in whose division th« det'endant resided or carried on business at the time it was issued (Houhlen v. Smith, 14 Q. B. 841), unless the defendant submitted to the jurisdiction; Ra). v. Smith, L. R. 1 C. C. 1 10 ; Blake v. Beech, 1 Ex. D. 320. But not if he took no notice of the proceedings ; Hudson v. Tooth, 3 Q. B. D. 40. As to the meaninL' of the words "resides" or "carries on business," see notes to sections ()'_' anil 71 ; Maxwell on Statutes. 59, 00; Thorp v. Browne, L. R. 2 H. L. 220 ; Be,j. v. V.G. of Oxford, L. R. 7 Q. B. 471. {I) Where it can be clearly proved that a person wilfully refuses to attend on first summons the creditor should not be put to the costs of a second sunnnons. Proof of expressions made use of by the debtor of a determination not to obey the first summons, but to await the second, have been held by some Judges to be sufficient reason to warrant an immediate order for commitment. {m) If a creditor, knowing that his debtor has been unfortunate, or if when the ■ummons was issued he knew that the debtor had no means beyond what afforded himself and his family a scanty subsistence, or under other circumstances of a like character, nevertheless has the debtor summoned under the 177th section, 184.] WARRANT OP COMMITMENT. 195 creditor does not appear, the Judge shall award the party Huuiinoued a sum of money by way of compeusation for his trouble and attendance, to be recovered against the judg- ment creditor in the same manner as any other judgment of the Court. C. S. U. C. c. 19, s. 166. 184. Wherever any order of commitment as aforesaid Commit- •' . meiit m casf has been made, the Clerk of the Court shall issue, under the of refusal, seal of the Court, a warrant of commitment («) directed to the Bailiif of any Division Court within the County, (o) and such Bailiff may by virtue of such warrant take the person ( p) against whom the order has been made. C S. 17. C <• 19, s. 167. aud tlie Judge makes no order, it is submitted that a \vise discretion would be exercised in making a creditor not only pay the debtor for his trouble and attendance under this section, but also bear the costs of the proceedings under section 180. (h) The Clerk should, in issuing the warrant, be careful to see that three calendar mouths from the date of the entry of the order of commitment in pro- ceiliiru book have not expired: Rule 101 ; HaijvH\. J^eene, 12 C. B. 233. If tlicy liave, he would, in the event of the debtor's arrest, be liable as a tres- passer : Lawrenson v. Hlil, 10 Irish C. L. R. 177; Fedlei/ \. Dar'wi Hal., 10 (J. B. N. S. 492 ; but see Ex parte O'Neill, 10 C. B. 57. The warrant must, in addition to being under seal, be dated, otherwise the arrest would be illegal : In rr Fletcher, 1 IJ. «& L. 726 ; see Forms 93 and 94. As to warrants of com- mitment generally, see Rob. <& Jos. ])ig. 1988 ; Fisher's Digest, 5148. [o] The warrant need not be executed by the Bailitf of the Court from which it iasues. The Bailitf of any Court within the County has an equal power to execute it. If executed by the Bailitf of another Court, it should properly be addressed to him. (/)) "On receiving a warrant, the officer should see that it has the seal of the tjiurt and the signature of the Clerk; and further, if a commitment for contempt, that it has also the seal and signature of the Judge to it. The arrest may be made at any time of day or night, but nuist not be made on a Sunday:" 4 U. C. L. J. 62. If the debtor is ordered to be committed any time .after exami- nation, and the Bailitf is negligent in executing the warrant, he and his sureties would no dcmbt be liable : see 4 U. C. L. J. 62. The following is a very good guide to a Bailiff as to his duties in executing the warrant : "The Bailiff will not be justified in breaking open the outer door of a person's dwelling house to execute a warrant, nor indeed in the use of txwy force to effect an entrance, oven to the breaking of a latch : 5 Coke, 92. An arrest under such circumstances would be void, and render the Bailitt' liable to an action (see Jlwh/son v. Toivn- "/;/, 5 Dowl. B. C. 410) ; but, having once got in, he may break any inner dour; so he may break open the outer tloor of a barn, stable, or outhouse. But what has been before said as to executions against goods will apply in this particular to the execution of warrants ; anil the cautigai is repeated, that even where force is necessary, a demand for admission should be tirst made, and all fair means resorted to before force is employed. Although an officer, having reason to believe that a party is in his house, may peaceably enter to arrest him, yet he cannot justify even a peaceable entry into the house of a stranger, except ^i< .-v.;^ ■1 .• > . ' *',*" >^. '/'; ■ ^ , ;,• ■ ,. - . , ■",»■ ''■•'■ > '..•-■ --•'A ■ , *■♦•*. M /. V ;j>r^:u • '♦ ,:;-r.^ ^\-'"> ■ l--'^ • » » • .»•'■'•- -. ' ■'*>>v M'-.''' • - ' ■■.^K ■<.'-■ ,.!l' i j; x'^i^f;''.'- i '.1 •i ,<■ '.■i^'-S ,,.. , ^' ' '■• V' f' '^ '», fc " ' 1^ ■ .*■•' t. ■' .■ T • . '- » * . • V r '. ■' i^ ; ■■(. r T '^V •' ? ■ . . . -^ ^ V. *.;-' ':■> ^M-^ '^<-' ' »■• ■M> : "'♦ V ■ ,■.» ■•;. .1 : ■*'.*' ''. ■.i,.»^•-■■"■ '.»';% - ' t"-l '■;^\^ KiU A; >' ■ .* \ ■ % ' * ■ ''!*' *. 1 ■ » *■■■,■ '; J*?. ' ^'i ' t. ' ■■■« ^;^'' ■ , ■■ \.^JJ- ,, .' • * • *• - " .'"*'r ,.« ' i . : ", V -. * •■ ' \\. ■ #'r *. '■•'*i. J 't;. • V5.'.> >. « , -• ;■ ',.'.-"■■, * i ■, ■■/. •.'- • • - ■'.» '^"' 7- I /^ rn^i-Ai • ■ '? 196 EXECUTION OF WARRANT. [s. 185. . ',y -K '". t^- Constables, \-c., to l'X(H'Utt'. vvurniiits. J' '' .■■■'- '■>. .. v/i ". ^ •■- .\. ■..»'■ • ♦ ■ ■ • ■ •%;♦.*' \ ■<i':*5- 185. All constables and other peace officers within tlieij' respective jurisdictions shall aid in the execution (q) of every such warrant, and the gaoler or keeper of the gaol of the County in which such warrant has been issued, shall receive an(1 keep the defendant therein until discharged under the provisions of this Act or otherwise by due course of law. (r) C. S. U. C. c. 19, s. 168. by proof that the party was actually there: Cooke v. Bir(, 5 Taunt., 765; JohuHon V. Le'iij/t, 6 Taunt., 246. If after being ouce arrested, the i)arty escape and shelter himself in the house of another, the Bailiff may enter and take him, provided it he (lone OH fresh purim'd : Coke, 92. The bailitf should alway.-i keep this in mind, that if a defendant escape from custody through his negli- gence or want of precaution, he will be liable to plaintiff ; it may be, to the whole extent of the claim : 4 U. C. L. J. 62, 63. "To constitute an arrest, the party should, if possible, be touched by the officer ; bare words will not an arrest without laying hold of the person or otherwise confining him. I ■ 1/ a Bailiff come into a room and tell a party he arrests him and locks the '. '• ibisan arrest, for he is in the custody of the Bailiff ; or if in any other way the party submit himself by word and action to be in custody, it is an arrest. The Bailiff, ^'.'liether known as such or not, ought to produce his warrant if re(iuire(l ; bat shouliV m no case part with the possession of it. If the party snatch or take the *, .TrrauL. . -e Bailiff may force it from him, using no unnecessary violence in 80 doin;^. '-^ i'l ■'''he case of a constable where resistance is made, the utmost caution and forbearance should be used ; but the Bailiff may lawfully use force to overcome resistance — that force not exceeding the necessity of the case, and ceasing the instant resistance ceases. Whenever difficulty is apprehended in effecting an arrest, the Bailiff may call anv constable or peace officer to his assistance, as constables and peace officers within their respective jurisdictinn.s will be bound to aid the Bailiff to make an arrest. It would deem that where the Bailiff uses proper precaution, and acts with reasonable firmness, he is not liable in case of a rescue being made. When an arrest is made, the party arrested should be at once brought to gaol, unless indeed he pay the anumnt mentioned in the warrant, with the costs ; and there seems no objection to the Bailiff taking it from him, although perhaps in strictness he would not he war ranted in doing so. No more force or restraint should be imposed on the f)risoner than is necessary to prevent his escape, and no delay should be madi- n placing the party in gaol. The warrant is left with the gaoler. The BailiU should obtain a memorandum from the gaoler of his having received the warrant and the party named therein from the hands of the Bailiff. As in other cases, the Bailiff nmst make return to the Clerk of what he has done under the war- rant :" 4 U. C. L. J. 83 ; see also notes to section 182. As to the indorsement on the warrant by the Bailiff after arrest, see Rule 103. Qucere : Should a Judge, if in <loubt as to the validity of a commitment on application to dis- charge the delator, presume in favor of liberty and discharge him ? see In n Beehe, 3 P. R. 270. {<]) A refusal to "aid in the execution" of a warrant of commitment would be a misdemeanour : Beg. v. Sherlock, L. R. 1 C. C. 20. (r) If the gaoler should keep the debtor in prison longer than the law allows, according to the facts appearing on the face of the warrant, he would be lialilo {Moone v. Rose, L. R. 4 Q. B. 486) ; and if the debtor should escape, the gaoler would also be liable (Ahept v. Eyks, 2 H. Bl. 108), even though he escapt' tthrough a relaxation of the prison rules on account of the debtor's ill health : SS. 186-188.] WHEN DEBTOR TO BE DISCHARGED. 197 ■;-»^«,'-'.r 186. Any person imprisoned under this Act, who has ^'^^^^ .satisfied the debt or demand, or any instalment thereof pay- finstody _ _ ' •' _ ^ '' sIkiU be able, and the costs remaining due at the time of the order of Uischarncd. imprisonment being made, together with the costs of obtain- ing such order, («) and all subsequent costs, shall, upon the certificate of such satisfaction, signed by the Clerk of the Court, (<) or by leave of the Judge of the Court in which the order of imprisonment was made, be discharged out of mtody. C. S. U. C. c. 19, s. 169. 181. The Judge before whom such summons is heard Judpe mny . make order may, if he thinks fit, rescind or alter any order for payment and may [ireviously made against any defendant so summoned before modify the him, and may make any further or other order, (u) either for the payment of the whole of the debt or damages recovered and costs forthwith, or by any instalments, or in any other manner that he thinks reasonable and just. C. S. IT. C. c. 19, s. 170. VVf » J .■•■,,• ■■'•,■• t ■•..;•■.-. ■;>«ri|-'..-.»'.-;'- i "**'''. ■■■.' ' y ' .rv- ''^ I 188. In case the defendant in any suit brought in a Divi- Parties :nou Court has been personally served with the summons to aminod, appear, or personally appears at the trial, and judgment is Haines v. East Imlia Co., 11 Moore P. C. C. 39. As to the damagesi in a (tase against any officer or gaoler for an escape, see MacRae v. Clarke, L. R. I C. P. 403. {«) Should the whole amount of the debt be payable under any order, then it and the costs would have to be paid before the debtor would be entitled to a discharge, or if one or more instalments overdue, then so much and costs. The gaoler can tell the amount to be j)aid from looking at the face of the warrant aud the endorsement of the Bailiff on it under Rule 103. The gaoler should not receive the debtor without this endorsement, otherwise he would not know the costs of arrest and conveying to gaol if the debtor wanted to ibscharge himself. The amount of these costs need not appear on the face of the warrant : Aloffat V. Barnard, 24 U. 0. R. 498. After imprisonment the RaiUff could not receive the amount of debt and costs : Arriott v. Brndly, 23 C. P. 1. (/) The gaoler would be bound to liberate the defendant on the certificate of the Clerk or on an order of the Judge, either of which the gaoler should retain iis his security. In the case of a discharge by the order of the Judge on pay- ment of the default, as remarked by Jervis, C. J., in the case of Ex parte Dukinn, 16 C. B. at page 93, "When the money is paid, the Judge becomes a mere ministerial officer to order the discharge. He has no <liscretion. The prisoner is entitled to the order as a matter of course." («) This section is substantially taken from the English Statute 9 & 10 Vic. cap. 95, sec. 100 ; see also 12 & 13 Vic. of England, cap. 101, sec. 1. Power is h«re given to the Judge, on the hearing of a judgment summons, if he thinks /it, to rescind or alter any order for payment previously made against the defen- ^.•-^>. .f- "-^v: ^•''■- ■■'-.? '-■.:■ ' ■•■■J •i 4 .1, Mr' §'.^-^> ^ir^^^5'- , ^lyr- ^•■•'*'C*>i.r» ■. '--r^:' T^^i"ii > ■- 'm ■■ : '.', .-•■■•|i'., ■ 198 DEBT NOT EXTINGUISHED. [s. 180. -■■■ ^y'Jr ■ . *>'!>-. ■'•■•* -. t .i ''. .■•"■(■■ ■-' •.U€;|| jj %-. ■■ •;'.»:"T,|t.'»,^ .i'^■■-•^ ■. given against liim, the Judge, at the hearing of the cause? or at any iuljournment thereof, may examine the defeiidaut ami the plaintiff {v) and any other pei-soii touching the sevoial things hereinhefore mentioned, and may commit the defen- dant to pnson, and make an oixler in like manner as lie might have done in Ciise the plaintiff had obtained a sum- mons for that purpose after judgment. C. S. U. C. c. V.K s. 171. fC. S. U. C. c. 19, s. 172, is as follows.— I'arty com- 172. No protection onler or certificate granted by any Court oi be <i'3- Bankruptcy, or for the relief of insolverit debtors, »hall be availalik- 'i!'"'f *' ^°' *o discharge any defendant (to) from any order of commitment 9.< vency. ^^^.^^.^^ ^^ ^^ y ^ ^^^ ^ ^g^ ^^^, ^^^ ^ Debt not to lie extin- guishbd. 181), No imprisonment under this Act shall extingiiisii the debt or other cause of action on which a judgment liiis been obtained, or protect the defendant fix>m being summoned anew and imprisoned for any new fraud or other deliiult (x) rendering him liable to be imprisoned under this Act, or deprive the plaintiff of any right to take out execution (y) against the defendant. C. S. U. C. c. 19, s. 173. dant. The words "previously made " used in this section, it is submitted, have reference to any order that may have been made under the 107th section, or ou any previous judgment summons : see Davis' C. C. Acts, 146. (v) This is seldom resorted to. It can only be done where the defendant has been "personally served" with the summons, or " personally appears. " Should a defendant have the means of payment of a debt, and the Judge were satisfied that he would leave the country before a judgment summons could be heard, he would probably act upon this section. The Judge, however, can under this sebtion make any order he has authoritj' to make on a judgment summons i see notes to section 187. {w) A discharge under the Insolvent Act does not prevent a party frran being committed on a judgment summons (In re Mackay et al. v. Goodson, 27 U. <J. K. 263) ; but where all a debtor's property has passed to an assignee in insol- vency, it is submitted that the circumstances should be very exceptional to warrant an order for commitment. (a;) The Judge can commit for as many defaults in pa3n]ient as the facts warrant. There should be a fresh adjudication every time : In re Boyct, 2 E. & B. 521 ; see notes to section 182. (y) It is submitted that the reason of the case last cited, and especially of the judgments of Coleridge, and l<>le, and Crompton, J. J., at pages 528 and o2i», is, that a fresh execution cannot be issued during the imprisonment of the debtor : see also Mc parte Dakins, 16 G. B. pp. 93 and 95 ; Arch. Pract. 12th Ed. 604. 190.] ABSCONDING DEBTORS. 199 ABSCONDING DEBTORS, (z) 190. In ease any person, being indebted (a) in a sum jj'b^or"'""^ not exceeding one hundred dollars, nor less than four dollars, for any debt or damages arising upon any contract, tjxpreas or implied, or upon any judgment, 1. Absconds (b) from this Province, leaving personal pro- It) Where a statute authorizea proceedings to be taken against the property of auy person without the prerequisite of a judgment or other judicial <letenuiuation, the provisioua of that statute should, in regard to such proceed- ings, be carefully observed. The proceeding by attachment is summary in its kjharactor, and frequently unjust in its consequences. It is mostly resorted to Jjefore judgment, s^d in such cases is, therefore, devoid of the character of a duly established claim. The debtor might have, and frequently has, a sub- itaiitial defence to the action. Doubtful claims are frequently withheld from duit, and their payment only attempted to be enforced by attachment, when it 18 supposed such means will best accomplish that purpose. This proceediit^ ic sometimes resorted to as a measure of coercion, and taken at a time and unde • such circumstances as are most likely to produce the desired result. Advantage is frequ/ently taken of a man's circumstances, and that too at a time when he iinds it better to submit to wrong and injustice than to suffer a more serious loss by delay and inconvenience. The proceeding is summary in its nature antl j-xceptioual in character. The party taking it should therefore be held to a strict exurciee of the rights coitferred by the statute, and the due observance of all its requirements : Fletcher v. CaJthrop, 6 Q. B. page 891, /)er Denman, C. J. ; Boyal Caiwulmn Bank v. Matheson, 6 L. J. N. S. page 11, per Gait, J. ; Kraemer v. Glm, 10 C. P. page 475 ; Reg. v. Ellis, 6 Q. B. page .506 ; Maxwell on Statutes, 237, 238 and 257. Where the form of affidavit and enacting clause differ, the latter must govern: Boyle v. Ward, 11 U. C. R. 416; Hufyinsv. Bradi/, 10 U. C. L. J. 268. As to the affidavit see 9 U. C. L. J. 136, 137. If there sliould be no [iersonal jwoperty there could be no attachment (see 9 U, C L. J. 332), and if an attachment was issued, and no property seizeil under it, the proceed- ings to judgment would have to be taken as if no attachment had issued. The 203rd section presupposes seizure under attachment. (a) That is whenever there is a cause of action for an amount not exceeding |100, nor less than $4, as " debt or damages arising upon any contract, express or impUed, or upon any judgment," this proceeding may be resorted to. Uidike sections 79 and 124 this clause is not confined to liquidated demands, but applies also to claims of ati unliquitiated character, provided they arise in the manner pointed out by the statute. A claim in trespass or trover or for any other actionable wrong would not be within the section. Proceedings could be taken on a judgment, no matter for what cause obtained. A claim ff)r damages in auy action when reduced to judgment would become a "debt" under this clause : see Jones v. Thompson, E. B. & E. 63 ; Dresser v, Johns, 6 C. B. N. S, 429. It is submitted that the word " judgment " here used should not be con- fined to the judgment of any particular Division Ck)urt, and that judgments of the Superior or County Courts would also be within its provisions, but that judgments of any Court but that out of which jmi attachment issued would, however, have to be /sued for and recovered upon as any other debt of a like nature. (6) A debtor could "abscond" from this Province to Quebec within the meaning of this section. One who might be in Ontario on a temporary sojourn could not be said to be absconding "from this Province^' on returning to hi« K' :i:;'- -^>.: ' ■».>■* ^* ,;■ >■■■{■■< ■r;-*^^ M ■ ;-v. • '• > ■■''>■ *• * ' 1 '. •»» 4 * -\ , <.'\ ■ ' t ^%': . •» [ ■* , • ■' 1 ^ • • * »: ?k ij . «» ■ V ■ ••'■ ..• il.* ■ .vr ' Vi.-. ■^\x■r.^ ^ ■*■;- '-'■mi --™lP«||»ifBiB^ 200 CAUSES OP ATTACHMENT. [s. WO. ■ ^''^^-^ «»■ ,■•■■■ i .:■ * •'• .■' X " ■••' "v *.f .•-. ■■■■ -t^^iis^-.- ■?'.■ .■■'■-«■;>•• iM- perty liable to seizure (c) under execution for debt in aiiv Covin ty in Ontario. 2. Attempts to remove (cT) such personal prop* rty, either out of Onttvrio or from one County to another therein. 3. Ke<'p8 concealed (e) in any County to avoid service of process ; and in case any creditor (J") of such person, his servant or agent (g) makes and produces an affidavit or affirmation to the purport of the form prescribetl by the General Rules or Orders from time to time in force relating to Division Courts, and in home : McPhcutdm v. Bacon, 9 L. J. N. S. 226 ; ClemenUi v. Kirhy, 7 P. R. 103. The person must "have personal property liable to seizure under execution " before he can be considered an " absconding debtor " within the meaning of this Act. To " abacond " merely is not sufficient : H'ujijina v. Brady, 10 U. C. L. J. 268 ; Wakefield v. Bruce, 5 \\ R. 77. (r) The general impression seems to have been (founded on the remarks of Robinson, C J., in Rey. v. Davidson, 21 U. C. R. 41,) that there was no exemption of any part of the goods of an absconding debtor : but seo uow Rev. Stat. cap. 66, a. 3; also see notes to sections 156 and 171. {d) The intention of removing personal property would not be sufficient ; there must be distinct evidence c/f an attempt at removal : Sharp v. Mattheius, 5 P. K. 10 : Howl V. Crmkite. 29 IT. C. R. 98 ; Req. v. Collin!<, L. & C. 471 ,- Reij. v. Johnson, 34 L. J. M. C. 24 ; Ex parte Coaten, In re SMlon, 5 Gh.D. 979 ; 6 L. C. (i. 17. (e) This must in every case be a question of fact, and proper inquiries should be matle before makmg the aftidavit: see notes to sections 131 and 134. The inference must be tliat the couceabuent is for the purpose of avoifbng the service of process. If the facts should shew any other object or intention, the affidavit could not properly be made. A person might be said to be keeping concealed if he remained in bis own house, and at hia request his presence there was denied by his servants or others, or if l>eing there, he, knowing the object of a process-server, refused him admission. ( f) The word "creditt)r here used must be read in connection with the words "for any debt or damages arising upon any contract, express or implied, or upon any judgment, " in the first part of the section, and cannot he confined to persons having liquidated demands merely. (g) The affida\'it can be made by one who has express or implied autliority to make it. The word "servant" cannot be held to apjdy to every servant, domestic or otherwise, but to one who, from the nature of his employment, would in this way have an express or implieil authority to protect the interests of his master: see Reg. v. Citinmingx, 4 U. C. L. J. 182. If the person making the affidavit had not authority to do so, it is submitte<l that hi& unauthorized act could not be ratified: Aiwtworth v. Crecke, L R. 4 C. P. 476. "An important branch of the duties of Clerks is preparing affidavits for and uing out warrants of attachment. It is presumed that Clerks will be apjJied to, except in cases of pressing emergency, where it may be indispensable to resort to Justicea of the Peace ; indeed, as a general rule, parties have no guarantee for the regularity of the proceeding unless they employ an officer instructed in and familiar with the requirements of law ; and as Magistrates seldom trouble themaelvea with such matters, and axe not entitled to make any charge foi ,"<^ *'-'.-y . s. 190.] AFFIDAVIT TO BE FILED. 201 case the said alfulavit or affirmation bo filed (h) witli the Clerk (if any Division Court in Ontario, then such Clerk upon the upplication of such creditor, his servant or uj^jent, shall issue a warrant under the hand and seal of such Clerk, (i) in the fonii ]>rPH(!ribed by such Ceneral Rules or Orders, directed to the iiailiff of the Division (Jourt within whose Division the sflino is issued, or to any Constable (A) of the County, com- ' ' .1 rlniwuig the affidavit and suing out the attachment, it is not probable their services will he sought save where the defendant's property would he h)bt unless instant action was taken, ami the Clerk's othce happens to l)e at a distance. The right to seize a party's ))roi)erty on the i)laintiff'8 affidavit, or his agent's, unsupported hy other testimony of the deht and state t)f facts giving right to attach, though a salutary provision of tlie law, is liahle to abuse ; and being an ej ■.He proceeding, the rules regulating the right must be strictly observed :" 1 L. C. L. J. 21. For forms of affidavit ami attachment, see Rule 35 ami Forms II and 12. The .statement of cause of action must be specially set out (//*.), and for such statement in issuing attachment see 1 U. C. L. J. 21 and 41. Should the affidavit be "for money lent and goods sohl and flelivered, ' without shewing either that the money was lent, or that the gooiis were sold and deUvered by the creditor to the debtor, it would be insufficient : Handlvii V. Franrhi, L. R. 2 Ex. 34. For reiiuisites of affidavits, see also I'ob. & Jo.s. Digest, 3, ^nd cases there cito<l ; Arch. Pract. i2tli Ed. !')[, title, "Bailable Proceedings, Statement of cause of Action." The defendant could waive an irregularity in the affidavit, such as the omission to allege that the proceedings were not taken from any vexatious or malicious motive : Barroio v. Capreol, 2 U. (J. L. J. 210. An affidavit for attachment which contains more than any one of the three alternatives of the statute is bad, ami an attachment issued upon it would perhaps render all parties, except the Bailiff, liable as tres- passers (QiMckcnhash v. Snider, 13 C. P. 196) ; so also would they be liable if tlie warrant were issued without any affidavit : Caudle, v. Seymour, 1 Q. B. 889 ; Gray v. McCarty, 22 U. 0. R. 568. It would not render the affidavit bad where made before suit commenced to entitle it in the Court : Hart v. Rattan, '23 ( !. P. 613 ; Wakefield v. BriLce, 5 P. R. 77 ; see also [lujuins v. Brady, 10 U. C. L. J. 268. As to who may "affirm," see Rev. Stat. cap. 62, sections 12 and 13. (h) In Moore v. Gidley, 32 U. C. R. 233, it was held, in an action against a .lustice of the Peace for trespass in issuing a warrant of attachment, that the transmission of the affidavit to the D. C. Clerk was not a necessary condition of his having jurisdiction. A written application to the Clerk for an attachment is not necessary, as is required under Rule 7, for a judgment summons, nor does the creditor appear to be restricted to proceeding in any particular Court as he is under section 62 : see 1 L. C. (t. 54. (i) It will be observed that the warrant must be un^.i r the hand and seal of the Clerk, and not under the seal of the Court, as in S' .' o" 156, in respect to executions : see Rule 9. Rule 35 and Form 12 appear to indicate that where the Clerk issues the attachment it should be under the seal of the Court. The statute and Form being at variance, the former should govern : Boyle v. Ward, 11 U. C. R. 416. Probably the Clerk could adopt the Court seal as his own: Ontario Salt Company y. Merchants^ Salt Company, 18 Gr<ant, 551 ; Rob. & Jos. Digest, 3463. (i) As to the appointment of such officers, see Rev. Stat. cap. 82. "Any Constable " has power to execute the warrant : see Delany v. Moore, 9 U. C. R. 294 ; Rob. & Jos. Digest, 695 j Fiaher's Digest. 6610. ■■*♦,* ■ ••« ', . '• .•>! •.% .'; '■•■>■■ ■'• . •■''ll ■■•. V:*V■r,»• V'.l^■: '"H'./i '■'."■ ■'■■"%'■ •'■" * ■ " I -. . .. ■ .. *..■•• ' « -.■...■.'■ 1 .. -•,>f^ "^"■p 202 SEIZURK MAY HE MADE. [s. 100. i . « ■. , ■♦■•...•', '■•■••i:i^:^v. ' ' ;■ %"■:';■■■;■ '■-'»^ ^Si^jl mandinj,' such Bailift' or Constable to attach, seizo, takc^ (/) and Hafely k(!i'[» all the personal estate and effects of tli«! al)sc()ndin;,', reniovinj^ or coneeaU^l person within such County, liable to seizure under execution for debt, (rn) or a sufficient portion then^of to secure the sum UKUitioned in flic warrant, with the costs of tiie action, and to return the warrant forthwith to the Court {n) or " which the same issued. C. 8. U. C. 0. 19, s. 1«J<J ; 40 V. , , Sched. A (70j. (/) See notes to sections 150 and 170. {ill) See also notes to section l")*}. In an action for seizing f,'((0(l8 luider Divi- sion Court attaelinient it was iirovc*! that a few (hiys before the seizure the gooils liad been sohl by auction under the iHreetion of one of the plaintill'H, wiin executed a bill of sale to the vendee, witnessed l>y the auctioneer. //cA/, that this plaintitf could not afterwards be permitted to set up that the sale was void because fraudulent as against tlie plaintiff's creditors, and to maintain trespass for seizing the same goods as if tlmy were his own : Mr/'/iiitf>r v. Li'ulii-, '2l\ I . C. K. ")7.S. Should the Mailin" or Constaliie seize more tlian miglit be necessary "to secure the sum mentioned in the warrant, with the costs of the action," he (together with tfie sureties, in the c;use of the Bailitl, ) would l>e lial)Ie for an excessive distress ; see Pi<iiioU v. Birtles, 1 M. & \V. page 44'J ; Addison on Torts, -Jnd Ed. 14 ; 9 V. tV L. J. 318. (n) Where there has been no proceeding by summons, and the warrant issued by a .lustice of the Peace, it is sul)mitted that the wan 't shouhl be returned to the Clerk of the Court within wliose division the afli'' see section 1J)1, and 1 L. C. G. 54. If the warrant improperly issued, the Judge would have, iudei)endentij ment, a common law power to set it aside ; Jackson v. A writ of execution from a Suj)erior or (Jounty (Jourt, would, on the autliority oi Francis \\ Braw/t, 11 LI, C. U. 558, entitle the Sheriff under it to seize gmiils then in the ])ossession of a Division Court (Jlerk under attachment ; but it i.s submitted, after a careful perusal of the authori' ' js here cited, and especially the judgment of Draper, C. J., at page 5G5 of 11 U, C. R. ; of Hagarty, .1., in Fisfier v. .Su/lri/, 3 U. C. L. .1. 89 ; of Draper, J., in Poffer v. Carroll, i» C. 1'. at page 448, and looking at the object and scope of the Division Ccmrt Act, that an execution from a DuHxion Court, at the suit of another creditor, does not take priority of the attachment and authorize a seizure of such goods on the execution to the prejudice of the attaching creditor. The principle of Fraiiris V. Brown is, that the Legislature did not by the Division Court Act expressly take from an execution creilitor in a Superior Court the rights against a debtor's goods which liia writ gave him. No such reason, it is submitted, can be fouiiil for giving an execution priority over an attachment where both issue from tlie Division CJourt, iind where neither one has precedence of the other. The goods are, it is to be observed, in the custody of the law, and cannot, it is submitted, during such time be again seized under Division Court process : King v. ^f(lc^ donald, 15 C. P. 397 ; see also Carrall v. Potter, 19 U. C. R. .S46 ; Damd v. Fitxll, 17 U. C. R. 369 ; Putnam v. Price, 1 L. C. G. 77 ; Paton v. Schram, 1 L. C. G. 93 ; 2 U. C. L. J. 172 ; 2 L. C. G. 49 and 63 ; Nicol v. Eivin, 7 P. K. 331. By the attachment the creditor obtains a lien on the goods seized to the extent of his claim, which the 195th section preserves to him until his execution issues, and then gives him, as against Division Court creditors, priority of execution : see Tate v. Cor. of Toronto, 3 P. K. 181 ; Caron v, Graham, 18 U. a E, 315. was made or taken : dunent should he .ny statutory enact- nandall, 24 (J. P. 87. B. 191.] JUSTICE MAY ISSl'E WARRANT, 2u3 UM. Any County Jud^'o, or a Juatico of tlie Poace for ^^^'j'''. .„, tlio County, (o) may tako the atUdavit in the last preceiliu},' ""- ''''"-«> section mentioned, and npon the same beini,' tiled (p) with "itinii such Judge or Justice, the Judge or Justice may issue a (o) From the notus to the previous section it will be seen the daiigiir th.'it Justices of the I'eace run in issuing warrantH of attachment ; their safest course is to allow the Clerks of the (Jourt to perform a duty which properly belongs to tluiii. It is only in eases of necessity that a Justice of tlu' I'eace shoultl grant the warrant. The author cannot better express his views on this matter than ill the following language : " Under the Division Courts Act, the creditor has a clioice in cases of attachment to apply to any Magistrate, or to the Clerk of the Court, to issue the warrant. The divisions are so sinall tiiroughout the country, and the (/'lerk's of!'. s usually so near a creditor's residence, generally in the siiine or an adjoo'ing tnwns.iip, tiiat rarely is there any cogent necessity for applying to a Magistrate ' ather than the Clerk ; and the saving of a, few miles against the risk of error is rather heavy odds for a plaintiil' to take, A\ ;)lyin;.' to a (Jlerk, he comes to an othcer experienced in the work -one who has all the forms l>efore him, and wliose friendly word of caution will often save a plaintitl' fniiii getting himself into difficulty. It is not so when he applies to a ^la^'strate, who is not and cannot be expected to be familiar with the Division Court pro- cedure. The propriety, therefore, of employing the ( 'lerk seems obvious euiuigh. Let no suitor be persuaded by a Magistrate to come to him ou such a business ; and perhaps it may somewhat damji ardour in this particular if we mention the fact that a Magistrate is not entitb to any fee under the statute for doing the work :" i) U. C. L J. page 318. "The limplicity so necessary to the working of Division Courts has, in some cases, had the effect of allowing thoughtless or unscrupulous persons t<> work injuries, which are not so likely to occur in Courts of higher jurisi. tion. lu the higher Courts, to wliicli we refer, the preliminary steps must come hefort- thu Judge ; whereas in Division Conrts many important measures are taken, under the supervisicm of the Cleika only, or even indeed before a Justice of the Peace. Of course, when process is issued by the Clerks, there is a strong element of safety, and almost a certainty that the proceedings will be regular in form ; hut, ill the case of Justices no such security exists, as the records of the Courts plainly show. Our attention has been called more especially to the issuing of writs of attachment, as wellat the instanceof thoughtless persons, whodonot sutliciently consider the step they are about to take, as by unscrupulous creditors, who use the ready machinery of the Court as an instrument to terrify those with whom they have to ileal into submitting to such terms as they may think proper to impose. The Board of County Judges, in preparing their forms, have studied to provide that all the requisites of the statute should be eomiilied with, and have made it necessary that the party seeking j have the writ issued should swear positively to the fact and nature of the indebtedness, and that the debtor has absconded, or has attempted to remove his property out of the Province oi- Couuty, or that the debtor keeps concealed with intent to defraud the creditor of his debt ; and the creditor must also swear that he does not act from a vexa- tious or malicious motive. Now, if the re<piirements of the statute are carefully considered, and the affidavit carefully read over before swearing, much of the evil that has arisen would be avoided ; of ci.urse this would not deter persons who were so disposed from wilfully using the writ as, we might almost say, an instrument of torture :" 6 L. C. G. 17 ; see also 3 U. 0. L. J. 61. (p) It ia submitted that the filing by the Justice is a necessary condition to the proper issue of the warrant : Magrath v. Todd, 26 U. C. R. at page 90 ; lee el al. v. Morrow, 25 U. C. it. 610 ; Wcstbrook v. Calaghan, 12 C. P. 616 ; • -J- ■ • ■ . ' ,-• '>• i j: y-r-'^ *'-■■... - %i 'L ' - ' 1 ■ ^ ."•.'"r," .',4 ? "•* ; -' ';-A. ■■' '.'r-j:Kc'. .if-.- -v.' v'.v- , ♦ : * ■• • • ' -% >., ' ■ H |j|ii '•!• '% . '^ 'h 'V7 ' ,» ■ ' ' ■ - ' * t -; "' &: ". . " • ■ -. w :.■-,'■' ■^i ■•..■'-;■':?/•■■.>•■■• ' .*■;■ J" -^ -i ' '' * it':'. ■ "■. .•• ■••, It J '■^V,;-^^. V' ■*•■■• .^■':« ■ ;' « ' ym\^. ■ ■•***' :;'■■■■ . f >• : V" 204 BAILIFF TO SEIZE PROPERTY. [s. 192. Bailiff or Constalde to seizi' and inalie in- ventory. warrant under his hand and seal in the form prescribed as aforesaid, and such Judge or Justice .shall forthwith traiusmit the affidavit to the Clerk of the Division Court within whcso Division the same was made or taken, to be by him filed and kept among the papers in the cause. C. S. U. C. c. 19, s. 200. 103. Upon receipt of such warrant by the Bailiff or Con- stable, and upon being paid his lawful fees, including the fees (g) of appraisement, such Bailiff or Constable shall forthwith execute (r) the warrant, and make a true inven- tory of all the estate and effects which he seizes and takes by virtue thereof, and shall within twenty-four hours after seizure, call to his aid two freeholders, (s) who being first sworn by him to appraise the personal estate and effects so seized, shall then appraise the same and forthwith return the inventory attached to such appraisement to the Clerk Rfg. V. Shaiu, 23 U. C. R. 616 ; Mei/frs and Wonnacoft, In re, 23 U. C. R. 611. It waa held, however, in Moore v. Gidhy, 32 U. C. R. 233, that the omission by the Justice of the Peace to transmit the affidavit to the D. C. Clerk did not ren- der him liable as a trespasser, though the neglect to do so might render him liable for a breach of duty. ( ij) As to the fees of appraisers, see section 47 and Form 3. (r) That is within a reasonable time : Maxwell on Statutes, 311 ; and note (y) to section 18. («) See note (/) to section 27. The duties of Bailiffs and appraisers are well expressed, and the forms to be u»ed will be found in the following extracts : " Bailiffs' duties in respect to attachment do not need the same full notice as those of Clerks. We will refer to them briefly, and give the necessary forms under the statute, which are not contained in the schedule of forms prejjareil by the Commissioners. If the warrant of attachment be placed in the bailiflf 's hands by the party or a magistrate, he shouM take care to have all his lawful fees, as well as the fees for appraisement, paid to him before he undertakes to act, for having once begun, he must go on with tlie proceeding ; but where th« warrant is sued out of his own or some other Court, he may be sure the Clerk will have the fees secured to him. Also, enquiry should be made by the Bailiff as to the property intended to be seized, and, if perishable, it will be proper for hiin to require security uniler thii 70th (now 205th) section of the Act before he seizes ; but in general, on receipt of a warrant directed to him, the bailiff is torthwith to execute the same ; that is to say, he is to proceed with all diligence to aeizo «uch personal estate and effects of the debtor as may be taken under the ordinary writ of execution, or a suflScient portion thereof to secure the sum mentioned in the warrant, with costs. A difficulty may occur with respect to other creditors coming in afterwards, and it is not easy to lay down any rule as to the amouut of property the bailiff should attach. If he has knowledge of other creditors coming in, it would seem proper to seize enough to cover the claims of all ; but in any case let the bailiflf take ample property to cover, at a forced sale, the debt and costs in the case in which he acts. It may be that an enlarged meaning ought, in ccnatruction, be given to the word secure, as used forms to be SS. 193, 194.] WHERE PROCEEDIKGS CONTINUED. of the Court in which the warrant in made returnable, (t) C. S. U. C. c. 19, s. 201. 193. In any case commenced by attachment, in a Divi- sion Court, the }>roceedingH may be conducted to judgment an<l execution in the Division Court of the Division witliin which the warrant of attacliment issued, (u) C. S. TJ. C. c. 19, s. 202. 194. Where proceedings have been commenced in any case befox-e (y) the issue of an attachment, such proceedings 206 Prnceedings may lie con- tiiiueil in Cdurt out of winch attai'liinent issued. Proceedings I'oiniiieuceil before in the 64th (now 190th) section ; but we will not pursue this point at present, as it opens several nice (juestiona. Having seized, the Bailiff's first duty is to make an inventory of the property, which may be in the following form: An Inventory of goods and chattels (property and effects) by me this day seized and taken, in the Township of , by virtue of a warrant of attach- ment issued by 7".//., (."lerk of the Division Court of the County of , (or as the case may be), on behalf of A. B., for the sum of , against the personal estate and effects of C. D. : that is to sivy, one lumber waggon, one plough, &c., (stating all the articles seized). Dated this day of A.D. 18 . B. F. Bail if of the Division Court County The inventory made, the Bailiff, within twenty-four hours thereafter, calls to his aid two freeholders, and swears them to appraise the property seized : 1 U. C. L. J. 22 and F. 120. This form of oath will be found at Form 121. A memorandum thereof should be then endorsed on the inventory as follows : On the day of A.D. 18 , T. T. of and N. N. of were sworn by me well and truly to appraise the goods, chattels, property and effects mentioned in this inventory. B.F. Bailiff. The freeholders then examine the property as pointed out to them by the Bailiff, and, having valued the same, their appraisement should be endorsed on the inventory : 1. U. C. L. J. 22. The form of this endorsement will be found at Form 122. The appraisers must be sworn before they make the appraise- ment : Kenny v. May, 1 M. & Rob. 56. If the Bailiff should sell without an appraisement, he would be liable to an action, but the sale would not be void : Lyon V. Weldon, 2 Bing. 334; Campbell v. Coulthard, 25 U. C. R. 621. The Bailiff could not be an appraiser ( Westwood v. Cowne, 1 Stark, 172) ; nor the attaching creditor : Aridrewsv. Bussell, Bull. N, P. 81. (t) This, it ia submitted, means to the Clerk of the Court wnithin whose Division the alEdavit for attachment was made or taken whether by himself or a Justice of the Peace : see section 191. (h) Reading this section in connection with section 191, it will l>e seen that the Legislature presupposes the affidavit to b^ "made or taken," and the warrant of attachment to be issued, within the same Division. Should the affidavit be taken in one division, and the warrant issued in another, there would be some inconvenience about the custody of the papers. (r) The proceeding by attachment is in this case supplementary to the action previously commenced. 4^;* •>^^r'::- 1 •• -,. v., I .■■ -'.■»:■.■• "* - -,;,v.'V -i 1. .• • -^ ■. k « 1 '.■'-*■,•,•: n '";■;:, •. I '.."»>'V ^.v^:■ - >■■ .•.■'■->■'■■■■ • .-"■',"i • ' ' '• ■ ••■ ■ ■". f ' • - ' ■ : . .-•■.. ■'■' "■ ■• ! : vl.'^- ^T•■. i'l'i'-Nv "-^ '■.. ■*•.■■ .■;:,■ ■,;^*.r-^-:V,.. •'.. »,- n. V*"- :,C ■ 4'-,; :^■^:■■'■*^; ■,V»^i,. ■ ■'' - * ' • '■ fN "-. '' ■!'-r, Vt •",,* :■>■ -"'•■•■*■ •;■■■'-;-,!,■•■' ■ V ^:>''-^4^ .:,l:;.,v« ^vi- .■■*^^J ' t 200 PROPERTY MAY BE SOLD. [ss. 195-197. Hitaciimcnt jn^y jje continued to iiidffment and execution in the Division Court within wliich the proceedings were commenced. C. S. U. G. c. 19, s. 203. Property at- tiiclu'ci may Ih' sold under execu- tion. Plaintiff to diviile c^auae of u(.'tion. 1SK1». Tlie property seized (v)) upon any warrant of attach- ment shall be liable to seizure and sale under the execution to be issued upon the judgment, or in case such property was perishable, (x) and has been sold, the proceeds thereof .shall be ai)])lied in satisfaction of the judgmen! C. S. U. C. c. 19, s. 204. Jio* 190. No plaintiff shall divide (y) any cause of action into two or more suits for the purpose of bringing the same within the provisions of the preceding sections, but any plaintiff having a cause of action above the value of one hundred dollars, and not exceeding two hundred dollars, for which an attachment might be issiied if the same were not above the value of one hundred uw.!irs, may abandon the excess, (z) and upon proving his case, {a) may recover to an amount not exceeding one hundred dollars, and the judgment of the Court in such case shall be in full discharge of all demands in respect of such cause of action, and the entry of judg- ment (6) therein shall be made accordingly. C. S. U. C. c. 19, s. 205. If several lOT. In case Several attachments issue against any party issued™*" * then subject to the provisions contained in the sixteenth {w) As to the seizure and sale of chattels on execution, see .notes to sections 156, 170, 171 and 192. When replevin is m.-tintainable for goods seized under attachment, see Arnold v. Higgins, 11 U. C. E. 191 ; but also see Caron v. Crraham, 18 U. C. R. 315. (;c) See notes to section 204. [y) See note (h) to section 59. (2) "Where the excess is abandoned, it must be done in the first instance on the claim : " Rule 8 and notes thereto ; In re Higginbotham v. Moore, 2J U. C. R. 326. (a) It is submitted that if personal service of the summons, and of detailed particulars of the plaintiff's claim were made, that the Judge might in his discre- titin give judgment without further proof : see sections 82, 202 and 203, and notes. Other attaching creditors might defend the action under Rule 36. If the deftmdant be not personally served, the trial could not take place until a month after the seizure under the attachment : Rule 25. (<;) No form is given for the minute of judgment, but it can eaaily be drawn up from the facts of the case. lii-'fe-" -■ ' Rev. Stilt c. 08, s. 15. If gooila iusutUcieut. 83. 198, 199.] RATEABLE DISTRIBUTION OF PROCEEDS. 207 S'ctioii (c) of The Act respecting Absconding Debtors, the proceeds of the goods and chattels attached shall not be paid over to the attaching creditor or creditors according to priority, {d) but shall be rateably distributed (e) among stlch of the creditors suing out such attachments as obtain judg- ment against the debtor, in proportion to the amount really (hie upon such judgments ; and no distribution shall take place until reasonable time, in the opinion of the Judge, has been allowed to the several creditors to proceed to judg- ment. (/) C. S. U. C. c. 19, s. 206. 108i Where the goods and chattels are insufficient to satisfy the claims of all the attaching creditors, no such creditor shall be allowed to share unless he sued out his attachment, and within one month next after {(j) the issue of the fii-st attachment gave notice thereof to the Clerk {h) of the Court out of which the first attachment issued, (i) or ill which it was made returnable, (k) C. S. U. C. c. 19, s. 207. lOJ). All the property seized under the provisions of the ^l^^^,l°^^^ |)roceding sections shall be forthwith {I) handed over to the ^tt"|J;1,gj (r) See Rev. Stat, 829. ((/) See notes to section 190 and 7 U. C. L. J. 313. When Division Court attachment is superseded, see Rev. Stat. 8*29. ((') Like the policy of bankrupt and insolvent laws equal distribution among attaching creditors is what the Legislature hail here in view and havejprescribed ; but if (as is generally the case) the goods attached prove insufiicient to satisfy the claims of all att^aching creditors, then, under section 198, only tliose would participate who sued out attachments, and within one month after the issue of the first attachment gave notice thereof to the Clerk of the Court out of which such first attachment issued, or in which it was made returnable. (/) See notes to section 196 and Rules 35 and 36. (;/) A calendar month is here meant, and the day on which the first attach- ment issued would not be reckoned as part of the time: see notes to section 107. (//) As the section does not say that the notice must be in writing, it need not he ; Hex v. Justices of Surrey, 5 B. & Aid. page r)39 ; Beg. v. jSlrhul et ai, 40 U. C. R. 76. If the Clerk were made aware of an attachment in any other way, it is submitted it would be sufficient notice to him: Lanark and Drummond Plank Road Company v. Bothioell, 2 U. C. L. J. i>29 ; but see 5 L. J. N. S. 114. For precaution the notice had better be given in writing, although it is sdb- niitted that Q. B. and C. P. Rule 131 would not apply here. (i) That ia when issued by a Clerk of a Court. (k) See latter parts of sections 192 and 193 and notes thereto. (/) That is within a reasonable time : Maxwell on Statutes, 311, and note (y) tij section 18. y i^ /c^^z^ /If £/ at€/~ry 't^rC / :■•■:■'•'«■••■...-, " -.r.*...t-'l •■'ilv-^':::: X ':■ .^-.^r4,5ij-Vi;.. ,■ >•■: I-' ' r .i .•* i •■^»'' V-' .1 *■ '■ ■' ■ ' W.' y ,;■«.. ..-iX^k ■■.■.■,•.. \- ,1 '..»•*■ ■■,;■!«.'..■,•.■/ •,• J t : '■., i: -'W V ■ t , ■ .■..•.■•••.'\ ■r.,: i ■ 1. '"T % * .' ■ . " *t 1 ■.'■" ■■■. • # ■ <)L > ■ ^ ^- -" •• 1. ■ ■(,■» %',' ■ v^r ,, >> .•■... ^.■'•4.'"*.;,-> •■' ''! ft-* ■■ ■ - ■ ' J.j»ijl -.»•>!■ 208 HOW GOODS RESTORED. [s. 200. On wliat tui'iiis gnods attached may be restored. custody and possession of the Clerk of the Court out of whicli the warrant of attachment issued, or into which it was made returnable, (m) and such Clerk shall take the same into his charge and keeping, (n) and shall be allowed all necessary disbursements for keeping the same. C. S. XJ. C. c. I'J, s. 208. ^00. In case any person against whose estate or effects any such attachment has issued, or any person on his behalf, at any time prior to the recovery of judgment in the cause, executes and tenders to the creditor who sued out the attach ment, and files in the Court to which the attachment has been returned, a bond with good and sufficient sureties, (o) (m) See notes to sections 191 ami 192. (h) Neither trespass, trover, nor replevin would be maintainable against the Clerk for the goods. As remarked by Robinson, C. J., in (Jnron v. Graham, IM U. (J. R. at page 318, " that the statutes having made it the duty of the Clerk to receive from the Bailiff such goods as he had seized, no action of trespass or of trover could have been sustained against the Clerk for doing what the Legislature had made it his plain duty to do, and the Replevin Act * * only gives the remedy by replevin in those additional cases where trespass or trover would have lain for an unlawful capture or an unlawful detention : " see also Rol). k Jos. Digest, 3299. The Clerk would, it is submitted, be subject to the ordinary responsil)ilities of a depositary. He would be bound to take the ordinary care of things accepted by him to keep which a reasonably prudent man takes (if his own property of a like description : (iihJin v. McMullen, L. R. 2 P. C. 317. He would be liable to make compensation to tlie owner if the goods were stolen, damaged or lost by reason of his gross negligence (as to which see L. R. 2 P. ('. 336) in the keeping of them, but he would not be responsible for slight neglect or ordinary casualties: Co(j<js v. Barnard, 1 Smith's L. C. 177. "What is and what is not gross negligence amounting to a breach of trust is often a mixed question of law and fact, but more generally a pure question of fact. It must be judged of by the actual state of society, the general usages of life, and the dangers peculiar to the times, as well as by the apparent nature and value of the subject matter of the bailment, and the degree of care it seems to require ;' Addison on Contracts, 7th Ed. 653: Rooth v. Wilsm, 1 B. & Aid. 60. "If the subject matter of the bailment is a perishable commodity, the bailee is bound to bestow such an amount of labour and vigilance for its preservation as wouM ordinarily be bestowed by a prudent owner : " Addison on Contracts, 6.")4. Should ordinary prudence require a Clerk to insure such goods as might be placed in his possession under this section, if his own, then if the insurance premium were tendered him, with a request to effect insurance, and he could do so, it is submitted his neglect in that respect would be within the princijile above expressed, and render him liable if they were destroyed by fire. He would not be bound to do so out of his own money. The Clerk should store or deposit the goods in some reasonably safe place, and if the approval of the attaching creditor could be got thereto, so much the better. (o) One person would be sufficient if unquestionably good for the amount (Interpretation Act, section 8, sub-section 18, Rev. Stat. 5) ; but it is usual te have at least two. As to f»rm of bond, aee Form 105. s. 201.] WHE\ EXECUTION MAY ISSUE. 209 to be apjiroved of by the Judge or Clerk, (p) hiiuling tlie obligors, jointly iuul sin-erully, iii double the iiinoiiut cliiimod, with condition that the del)tor (naming him) will, in the t'veut of the claim being proved and judgment recovered thereon, as in other cases where proceeding-s have been coniuienced against the }»erson, pay the same, or the value of the property so taken and seized, (y) to the claimant o"* cliiimants, or produce such proi)erty whenever thereunto reipiired, (r) to satisfy such judgment, such Clerk may supersede the attachment, and the pro}»erty attached shall then 1)6 restored. C. S. U. C. c. 19, s. 209. /JOI. If within one month from (s) the seizure as afore- ifiiKMipbtor , -11 1 • 1 <loi'.s licit saiii, the party against wliom the attachment issued, or .some ui>iieitr. one on his behalf, does not appear and give such bond, exe- cution may issue as soon (/) as judgment has been obtained upon the claim or claims, and the property seized upon the attachment, or enough thei-eof to satisfy the judgment and costs, may l)e sold {ii) for the satisfaction thereof, according to law, or if the property has been previously sold as {KM-ish- able (v) under the provisions hei'einafter made, enough of (;)) Properly this should only be done after notice to the o])posite party. The riglits given to the creditor by attaelinient .sliould not Vie taken away witliout an oiiportunity of iiis shewing eause against it, if so advised : Maxwell on Statutes, 3'25 ; Tfwrlnini v. Jianics, L. 11. 2 C. I'. 384; see note (o) to sec- tion 30. (r/) The obligors wonlil only be liable for the lesser sum. wliichever it might be. If an action had to be brought on the hoiul, the plaintiff eonld not reason- alily elaim more than the value of tiie goods ;is estimated by tiie ap[>raisers. As to actions on bonds, see Uosooe's N. P. 7(1!* ; Uob. & Jos. Digest, 51)8 ; Fislier's Digest, 133.1; A<ld. on Con., title, " Bonds." (/•) A seizure by a landh)rd of the goods attached as a distress for rent would be no answer to au action on the bond (Raiiclji' v. Fiiic/i, 14 V. ('. H. 241)); nor Wduld it be a performance of the condition, nmler such circiunstanees. to say to the iililigee that he might go and take the goods out of the possession of the iandkn-d at his peril: s. c, 14 U. C. R. 4»J8. (v) This would be exdnsire of the day of the seizure : Yuiintj v. Hi<jgov, (1 .M. & \V. page 53; McCrne v. WaUrbjo Mutual Fin- /n,iuraiice ConijHiny, 26 t!. P. page 437. (t) In order to prevent expense, the Legislature probably made this provision as to execution issuing " as soon as the judgment '" was " obtained." It is sub- mitted that the Judge could not, in such a case as this section contemplates, postpone the issuing of execution, and tliat section 108 would not apply. (m) See notes to sections 174, l7o and 176. (*') See notes to section 204. 14 ■ . ■ ■' •• • . . . .- J ■ » ■• V/' ■ r*^ •'?.■■ ■■ ■ . ■ •■> ; ' '• .."■-. , * #f* ■ * **- ** • -.- - * ,iM» - 'v* T #*.« 1 • * I ^i - », !'■•** -'".■ •' '1 w>. '.• « V».t».vVi'«- ,] -.,..'.v.V*.,...^ -■ ■■ I • •« •■■»•'.■>•. • ■• "J •::'>t ,' '', »■..'.■ '• . •■ .J • •• ..-•*■--, . •»• • ;-. ; .*•■.'•.■ ■ .s:l ■ .. t, ;.- . ■ » '. ... ; •!. .' ■*:■■ ■. .'t'. •...■■ •.:. . .'- ■" ■•'ft '.:-':, ■ ^ .,.,'■ . ..'■ ■ * ■ • ^ ■ /. » ■ >..■-■;•■'■* ' i.. V.:iV /v.^ .''t: »,.,■.„■•. .>;<^;-r';- ,»\v'r.i'-"v ; . ^•■■V'-^^.-%K - .. - . •» .'■ . . ■ .-*" ■ ■ ; > ■•• /■ , \ . . : -.-,■- . ■ ' ■•■ 1 • ■-■■0'..rv'' V,-.. -vV' <i ■' ^ .V ;v .. -•• ' ] ■ I' -j-i;.'' ■ i' ., ' ' :'*-\.-^v'V:'' •. ■.■ •. .1 : ■■•»», ■•,.'• - /-^t'-:.:- • ' .1 >'- •'■'■.•' : ■ ■ ■'■ •» ■ • , - ' 1' "» • „ . ..■ 1- ■ !• . . r ., ■-' i' V-- ; ♦»•* ; .. .. v«f- :-i '.-, ■^- 'i:'-^t. -A^-^l • - ,,■* . - ..f'< ■ . .-■'«•■„ ■*••.'" ■ .' «. •»:.,■■-.■• ■ ■•.'• ■•■ '^v*; :* ■\■''■■<^;.,r•.»■ ■ .«. •>..:■" ■^.,■..•- ■ r, .. ;.■<•. -v^*.v> ' », • V ■ . • ; ■ '.■> »*.';i' •■;> ••■•^t\=,t?;'V*;: > ■ '.r:- : ■ V ■ , ■ 'yyff^ ;r ■> * " .*•»-■ . ". ■ ■ '• *^' ■ • -■'-i?-';';\^:^- ..'i'-'>'v::^""''V '""■'¥ -A*.- '■-■ij- ■ ^" ■'; ■ 1.^ ■*.•>«.,-.»■-,,;■• ^::^is..^, ■ , .\, '»,, .,?J^ ^ '' ■,'■' «r ■»; », ■' . \ .>;■ ■ .:. >. J ■ ' . .r iv-'.-.-;:. ■: ■.. >■ ■ . ■• '■^ [r'il^'S'%;:V- • ^ ■ -** ^ ■ ,-■ !10 PROCEEDINGS AFTER SERVICE. [ss. 202, 20;?. If sum- tnoned porsonally. i'rooepflings agiiinst ilebtors WlllTC process not j»reviously served. Rev. Stnt c. 68, ss. 14 A Hi. the proceeds thereof may be applied to satisfy the judguuiit and costs. C. S. U. C. c. 19, s. 210. ^0^« Where the property of any person lias been seizod {to) under any warrant of attachment as aforesaid, and u summons had been personally served (a;) on such person before seizure, then the trial of the cause (y) shall be pro- ceeded with as if no such warrant of attachment had b('(;n issued, and after judgment execution shall forthwith iiisiic. unless otherwise ordered (z) by the Judge. C S. U. C. c. 19, s. 211. %iKi, Subject to the provisions contained in the four- teenth and sixteenth sections (a) of The Act respediiirj Absconding Debtors, in order to proceed in tlie recovery of any debt due (hi) by the person against whose property an attachment issues, where process has not been previously served, (c) the same may be served either personally {d) or by leaving a copy at the last place of abode, (e) trade or dealing of the defendant, with any person there dwelling, or by leaving the same at the said dwelling, if no person be there found ; and in every case, all subsequent proceedings shall be conducted according to the usual course of practice (/) in the Division Courts ; and if it appears to the satisfaction of the Judge on the trial, upon affidavit, or other sufficient proof, that the creditor who sued out an attachment had not reasonable or probable cause {g) for taking such proceedings, (w)) See notes to sections 156 and 170. (x) See notes to section 72 as to personal service. It is to be observed that this section only makes provision where service is made before seizure. (y) Contrast Rule 35. (z) Contrast the language employed in section 201 as to the issuing of execution. (a) See Rev. Stat. 828, 829. (b) See notes to section 190, as to what would be a "debt due" under this section. (c) See notes to sections 72 and 79. ((/) See notes to section 72. (e) As to what would be a person's "last jr^lace of abode, trade or dealing, ' see notes to sections 62 and 177. (/ ) See notes to section 202. (q) If a man act bonajlde on the honest belief of the truth of statements made to him by others apparently respectable, and whom he believes to be credible persons, he is justified in acting on such statements, if he believe there is « • ' ' V ^.' X ■J--' 4C ff M •fl'^V"- * s. 204.] DISPOSAL OF PKRISHAULE GOODS. 211 li'i '.-i ,: - ■ ' , * tlie Judge shull order (h) that no costs (?) be allowed to such oreditor or j)IjuiitifF, and no costs in such case shall be recovered in the cause. C. S. U. C. c. 19, s. 212. ':i04. Subject to the provisions contained in the four- rerisiiai.1.1 ;;(iimIs. liiiw teontli and sixteenth sections of 7'he Act respect imj Ahscoud- disposui of. iwj Debtors, (k) in Ciise any horses, cattle, sheep or other perishable goods (^) have been taken upon an attachment, ''^''.y- *^'''*- the 44«*4c of the Court who lias the custody or keeping i^ '""i >«• ■<^<'^(Uf^ \ ;'>. *'«^X't-'^" i*'!*'^!' thereof (the same having been thst appraised, in the manner in the one hundred and ninety-second section of this Act mentioned), may at the reijuest of the plaintiff (>ii) wdio sued out tlie warrant of attachment, expose and sell the same at jiublic auction, to tlie high(>st bidder, giving at least fiiglit days' (n) notice at the office of the 01 e rk of the said Court, and at two other public jilaces w'^hin his Division, of the time and place of such sale, if the articles seized will aiiniit of being so long kept, otherwise he may sell the same at his discretion. (0) C. S. U. C. c. 19, s. 213. /Q^///^.A' -•-<■. 1. *• • ■'. •' di •*■ ■ »: • '•■•■' X -• '. •" roasnnable autl probable cause for so doing: Chatfidd v. C'omeford, 4 F. & F. lOOS; Walker \. »S. E. JtaUumy Compiv)'/, li. K. o C. 1'. (>40; Linti'rv. Pcmjinan, l. R. 4 H. L. 521 ; Bank of B. N. A. v. Strong, 1 App. Cas. 3U7. (A) Imperative on the Judge. \i] This is a penalty which the Judge may impose for the improper issue of ^w attachment. It would not affect a right of action against the attaching oieditor for improperly issuing the attachment. (k) See Rev. Stat. 828, 829. (/) It is submitted that the words "perishable goods" here used should not Im read as signifying property of the same kind or like description as is men- tiouud in the preceding words; but would include fruit, vegetables, or other cliattel property of a jierisliable nature : Maxwell on Stat. 297 ; Cork and Bandon Railway Co. v. (ioodc, 13 C. B. 830. Willes, J., said, in Fvnimrk v. Srinnalz, h. K. 3 C. P., at page 315, in reference to the construction to be placed on a •tvtiite, "that if the particular words exhaust a whole genus, the general word must refer to some larger genus. " (/«) The "request" is a necessary condition of the sale, as remarked by t'lileriilge, J., in Bet), v. Ellin, Q. B., page 500, that "the inHLxilde rule attaches that under a special power parties must act strictly on the conditions nuder winch it is given:" see also Maxwell on Stat. 334, and U. ('. L. J. -4'(, 251). For his own protection the Clerk had better take the " request " in writing. ('() This means eight dear days: see note (r) to section 70; Norton v. Sal'is- hury (Town Clerk), 4 0. B. 32. Any informality in the ccniduct of the snlo would not invalidate it, though it might probably subject the Clerk to an action if damages were sustained in consequence : Campbell v. Coalthard, 25 IJ. C. R 021 . !')) "The portion of the section which says that the Clerk may sell at his dis- cretion, taken in comiectioa with what has gone before, would seem to mean ^M^ C ^—fc^-t. i^t^i— /<J CC^ 7 / /^f^ i. ■■'.».* , ■ .' ■• . .'.•■► J V'' ■ « . '7 '.'■'.»''.*. ,». , ■■aJ ■ ■;% /'*:*J.V''- •••■■ '^■^^ ■•■.^"^•^,'•• ft-, ".-u •.• i... *. .■ < ».••■.■.'■ ■.•:;"■. ' ■ "j^' ■ l, ^•^, .■••'■.■ ; ♦ r'-".^:'', -'-M ,;■ .' '/i'^T' '-'■'■•', '■ * :.- .• , ; . . /j' ;.■' ■ », ■ :■ -■;:.,*■-.,• . ^ • '■ ■ J ••^ "^ ^ - [ 'fc - ■ •■' ;; .^'^A:.?'''^., „, .;' VA-.-vA-i,: ,. c. • 1*'' * '' -" * ■ '"" -'- - ' ■».■■*■■ . f .,■> m _, ■;, %-^K i,;,:^' • ■''■', "-t- ■ '■'. ■* . , - / ..,!■'•■" . '.ji ,;'*/■■'■,,', •r^-:-; >• •»-'' '■ , ■>, ■'■'■' -i- ■", V '^■•i^. ^'.'. 1 ■ ■V :VV ;ri^'. •V' '■■ :• 'V ^'*-' .-•■'.:■ ' ■ ^ / V' i ,' ' -l^' ■ :#i i-t*'i- i^ ',' 4> '.' V,*^;, • It (^^UiM-ifjy- V^" < ^ 212 Crrditnr to Kivc 1)1111(1 to illilrllllliiy the (illiier, Hint tu bo Krsidiif, linw lUs- pusu'd of. CREDITOR TO INDEMNIFY OFFICER. [sS. 205, 20(5. !^05. It sluill not be coin|(ul.snry {p) tipoii ilie Bailid'dr Constable to seizej or iijKm the Wwk to sell such ponslmlilc goods, until tlie party who sued out the Avarrnnt of iittuch nicnt has given a bon<l to the defendant therein, with j^'ood ami sutHcient sureties (7) in double the amount (r) oi' tin- appraised Aalue of such goods, conditioned tliat the |iiirty dir<'cting such seizni-e and sale will repay the value tliercot", together witli all costs and danniges inc\irr((d in consefpicnce of such seizure and sale, in case jiulgnient bo not olttaiiicd for the ]>arty who sued out sucli attachment, and the bnml shall be tiled with the [»apers in the cause. C S. U. (,'. c. 19, s. 214. SOO. The residue, l^s) after satisfying sucli judgments as af(n'esaid, with the costs thereupon, shall bo delivered to tlie defendant, or to hif^' agent, oi- to any person in whose custody the goods were found, whereupon the responsibility of tlie that the f'lerk may ii.se hiw tliscretion in selling or not; l)nt the correct rc'idiiig of the sectiou is, we tliiiik, that the (.'lerk may, ^ at hlx ili/<rretioii,' .sell tlie articles on a shorter notice than eight days ; that is, if the articles are peri?h- al)le, and will not jwliuit of ))eing kejjt until the exi)irati()n of tlie usual notice of eight (lays, they may be sold on such shorter m-tiee as the Clerk in his dis- cretion may consider advisable to be given. The length of time to be, of cuursi', regulateil by the exigency of each i)articular case." (> l^. (,'. L. J. 2.i(). It in to be observed that it is the Clerk, and not the Hailifl", who conducts the side under this section. Care should be taken that notice of sale is duly given according to law : see notes to section 174. ( ;■•) "The ^statute expressly provides that the BailiiT neeil not seize, or the Clerk take charge of the pro^x^rty for which a writ of attachment has issued, unlr.-s a satisfactory bond is given by the attaching creditor. If either of tlusc utli- cers neglect to olttain this bond, or to see that it is given, we apprehend it will be at his own risk. The Bailiff who seizes should, in the lirst instance, w iuie the goods are perishable, demand and obtain a bond from the jilaintill' ; Imtit he neglects to tlo so, the Clerk might, we think, certainly refuse to receive then) until this proper precaution is adopted for the safety of Ixith." 6 U.C.b.J. -."lO. (7) See section 8, sub-section 18, of the Intcriiretatioir Act. One surety, if goml, would he "sutlicient :" Ih. (r) It is submitted that if the bond shoultl not be in double the annmiit. if would still be a voluntary obligation, good at Common Law: Stau/^eld v. Jldla- well ; 7 Ex. ,373. For form of this bond, see Form 125. (.s) The Clerk should not sell any more of the perishable property than i? necessary for the purpose of satisfying the claim or claims and costs. \Mieie the sale takes place before judgment, as it does in most cases, the exact sum can- not be determined ; and in such cases the (Jlerk will have to approximate the full amount. The Clerk, after realizing sufficient to pay all judgments that have been or may be obt<iined on attachment proceedings, is bound by this section to restore the residue of the go<Kls. Should the Clerk be derelict in hi*» duty in this respect, and damage ensue, he would be liable. a.. I ■>;i '•• ■ Rs. 207-209.] WHKUE UONI) MAY BE SL'ED. 213 .-' ' yX Clerk, as respects such propert}', shall cease, C S, U. C. c. 11), s. 215. /iOT. Any bond given in the course of any jn-oceeding i^"""' "i^^y iiiidor this Act, may be sued in any (0 I^ivision Court of in tii.' the (/ouuty wherein tlie same was executed, and proceed- c<mit. iii^'H may he tliereuj)on caiiied on to judgment and (execution in such Court, notwithstanding the penalty cojitained in such bond nuiy exceed the sum of one hundred dollars. («) C.8. U. C. c. ly, s. 2 Hi. ?J08. Every such bond shall be delivered up to the party •'"''«" '""y t'utitled to the same, by the order (o) and at the discretion honti. of the Judge of such Court, to be enforced or cancelled, as the case may require. C. S. U. C, c. 11), s. 217. CLAIMS OF LANDLOHDS AXD OTHERS IN RESPECT TO GOOD« SEIZED. ^0«). In the next six sections, the wox'd " landlord " shall inUrprcta- uiclude the pet son entitled to the immediate reversion oi wokIs the land, or, if the j)roperty be held in joint tenancy, co- parcenary or tenancy in common, (w;) shall include any one of the persons entitled to such reversion ; and Tlie word "agent" shall mean any j)ersou usually em- "Agent." [)loyed by the landlord in the letting of lands or in the col- lection of the rents thereof, or specially authorized to act in any ))articular matter by writing under the hand of such lamllord. C. S. U. C. c. 10, s. 174. {t) An action under this section woidd not he governed l)y section 62. ((() Analogous to subsection 3 of section 19, Rev. Stat. cap. 43. ((') The Clerk sliould retain tlie houil until the Judge onli-rs it to 1)C <lehvered up to the party entitled to it, wliicli would be done on apj.licatiou being made for that purpose. The right to the bond will deitend upon the fact wliether jiulgnient lias been given tor or against tlie attaching creditor on the claim for which he attached : see condition of bond in Form \'25. (w) For the inforniation of the lay reader, it may be said that the "iniine- •Hiite reversion " is the interest in the realty wliich the owner takes immediately on tlie determination of the lease. " Joint tenancy " is a unity of pos.scssion, unity of iutereat, unity of title, and unity of time of the coinmenceinent of a titlt! in land. " 0()paicenary " is where two or more persons together form an heir and "tenancy in common," is a unity of possession, but a distinct and several title to the shares, and such shares not by any means necessarily equal : WilJiiuus on Real Prop. * » • ■ , ' •- ■;><•••■•,••■ -,..'-• -if;: ■* •'■ • . .:i- "* ■'1 ■r.f\ % ■'^■'^^ ^' =■"•■•■ • ■ I- . *•;,■ •,<'*■•' * • .*s '■.•*.;. r-r. '•>-•"., •■I 'i\$- ; *■■< 'S^'-. • 1^ Vi.;.f f^j;, ,: •■■>'.■ ■: 1 1^" ■. •*.■• /^:'-^> ■<;.^:;'1W;^, ■"i!A-,V '^ • n '•- - , , -. ' >■ r ■•■ V, ■^"- ^ iiiLM 214 INTERPLEADER. [s. 210. ri.iiinsof *ZtO, In CISC II claim (,r) bo made to or in re.snoct of anv *if.,,t(.n(M.iia fjoods or diattcls, pi'oiK'rty or securitv, taktMi in j'XfHMitinn M'l/i'il ill ° '11./ " . . »!xi!(uii..ii, or attached (//) under the proces-s of any Division Court, or (.r) The (■laiiii must lie of siicli .i nature as inaj' l)e followed l>y an aetimi i /smi'- V. SjiiMiuri/, 10 Jiiuj^, 3) by the jiarty making the ulaim : lionrh v. W'rhjlit, S M. & W. b')7. An action need not be commenced before taking iiiteiiiUadii- proceedings: (irciny. liromn, ,'1 Dowl. 'XYJ. At one time the claim hail to lie of a legal natun; (Stiir(f<ns v. Clini</i', 1 Dowl. TiO.*! ; I/ui-Kt v. S/ii'>(loii, !,'{('. B. N. S. 7r>i() ; but that i.s not law now. The < 'ourt will look at the enuitahlc jih as well atj the legal rights of the claimant: J'lisdni v. Pupc, L. It. 'A Ex. 'Jt>!( ; HimL of Ircliind V. /'./•/•//, L. R. 7 Kx. U ; Dininni v. Vanhiii, L. l!. IOC. 1'. r)."i4 ; kii'jcllxirlc \. X'won, L. H. IOC. I'. ()4."» ; Mr/iilns/i v. Mrliitosh, 1,S Craiit, ,kS. The claim nnist ho made by a third party. A claim of lien is within the statute (Foril v. liii'intuti, 1 Dowl. Hr)7), or other special claim to the goods ; Murk'iMi'u V. Siiitf/i, 17 C. I'. 401. So also if the goods are seized in the |)().s.seK,sioii uf n stranger: Allen v. (lihhon, '2 Dowl. L'li'i. Under this Act, if the Hailitl' sells tliu giioils, he eamiot inter|»lead for the proceeds ( /'('/(/ v. McDonald, "Jti (,'. 1'. 147 1 ; or where he has exercised a discretion in the matter (Cniwp v. /hit/, 4 {\ Ji. 7(iO ; liosiirll V. J't'tfli/rctr, 7 I'. K. ;W.3|; or where the goods were claimed by a tliini party after the JJailitl' withdrew from the seizure it was /i<ld he could not inter- plead (lloltiin V. (iHidrijt, .'i M. & \V. 145); nor where the goods were uiuhr distress for rent {/fai/f/ii>rH v. Bnxli, 2 Dowl. (>41); nor where he lias sei/eii under one execution, and the question is, whether that writ should have jiri- ccdcnee over another : Ditij v. Wildnrh, 1 Dowl. 5'23. Jf the J?aili(l' shuulil lie placed in circumstances which gave him an interest on either side, he could ndt iuter[)lead (/>>(/(/(//■« v. //oh;/. 3 Dowl. 130 ; 1 Bing. N.C '299, s. c. xOMlcrw llairtr, 4 Dowl.Glt.")) ; nor where he has l)ronght about the claim {('ox\. Jialiic, '2 I). & L, 718l ; nor where the Bailili'hiis been guilty of neglect, andinconse()uenfe ineurred abability: Bnirb id'iiri/v. Liitiric, 3 Dowl. 180; Miliar v. Noliui, i L.J. N.S.;{'J7, The ( Jrown cannot he aclaimant : McOk v. Udiiics, ',i IJ. ( '. L. J. \5]. \\'liere the goods have passed to assignee in insolvency, see O'CalhujIuin v. Cowan it al., 41 II. C. H. 272. The Hailiif should ajiply as soon as possible (Cook\. AUcn, 2 Dowl. 11); but if the claim is clearly bad, he should not ai>]>ly, and woniil probably l)e made ])ay the costs : Jiis/io/) v. J/hi.vnuni, 2 Dowl. lOG. If, haviii;.; seized goods in execution which are claimed by another party, he delivers ii|> part of the goods, the title to them being the same as the others, he "in tiui colludes with the party to whom he delivers them up," and disentitles hiuiself to relief : lirauw v. Hunt, 2 Dowl. 391. The Hailitl'is not bound to accept an indoniiuty (Lcr;/ v Cfiamj)n<'i/-i, 2 Dowl. 454) ; but if he accepts one he will not be relieved by interjjleader : O.'^th'r v. Buirrr, 4 Dowl. (505. The HailiH' is en- titled to interplea<ler unless he has acted dishonestly, or his eonduet La.s prejudiced either of the parties : J/olt v. Front, 3 H. & N. 821. In the case cif an execution against one personally, he may, a.v cxic.ntor, make claim to the goals, and such is the subject of interpleader : Fcnwick v. haycock, 2 Q. V>. lOJ^. The interpleader summons must be taken out before money is p.aid over to tlie creditor, though the Bailiff had notice before : Andcrnon v. Calloira//, 1 C. & M. 182. Where a Sheriff' neglected to appraise gooils according to the terms <if interpleader order, see Black v. Bci/nolt/.s, 43 U. ( '. K. 398. .As to claims umlev bills of sale and chattel mortgages, see R. & .J. Digest, 573, ct ncq. ; Macki-irj" v. Dachhon, 27 C. i\ 188 ; McMnrthi v. Moorr, 27 O. R. 397 ; Pitziicndd ./ .;/, v. JohnxtonetaK, 41 U. C. R. 440; Barber v. Maughan, 42 U. C. It. l.'ft; O'Dono/io" v. Wil.-ion, 42 U. C. R. 329 ; S'ammt v. Coulter, 28 0. P. 240 ; linitkn V. Einmani/ H at., 28 C. P. 438 ; 14 L. J. N. S. 223 ; Bertram et al. v. Pendnj, •27 C. P. 371. (//) See notes to sections 156-170 ami 171, as to what property is the suhjeet of seizure, and when seizure can be considerod made. lu chapter 54, sec. l", ui 3. 210.] OFFICER MAY INTERPLEAD. 216 ill rospcot of the proceeds or value thereof, (;;) by any land- ''""' ^" ''" llljUStCll. lord for rent, (a) or by any ])er.son not bcsing the jiarty {/>) jn,'iiin.st whom sucli process issued, then, subject to the pro- visions of The Act rcspectuKj Ahscondiiiu f)eljto7's, (c) the Ri'y. stai Clerk of the Court, upon application of the otliccr ((/) charged Uifc llfviaed Statutes, the .ShcrifT is nllowod to interidead on ])rt>i>erty "taken <ir inteuded to be tak(3U;" aeo Led v. Jiu.'</<i, 11 Ex. I'.i. It is Jiut so iu the Division Court. (:) Tliis is analogous to money in the SherifF's hands alxuit which interjih^ailcr «an l)e ha<l {Scoff v. Lii'-h:, '2 V. M. & I?. '28!) ; //all v. h'i. ■:■■«, rll; 1| T. ( '. K. ;> ; jioiifh V. The Pfcslon iiiiil Jicrlui Jfiti/.wdj/ (Uninxiinj, I! IJ, ('. li. J, 'u\ hut under thi.s section there can only he an interpleailer "in resj)eet of tlu; proceeds or value" wliere a claim iii made to the same ; asid should the claim he niad« /(; tin- ijooiIk, there could hi; no interpleader as to the j)roceeds : Uc'ul v. McDoiudd, iT) C.*P. 147; see also MrArfhur v. (hxd H at., I!» IJ. C. l\, 470; W'ltlmn v. H<'n'l<'):^())i ft (il., 6 P. It. 2!)!). As to claim under insolvency proceedin;,'s, set 0'C(ill<i<l/i(iii V. Cowdii, 41 IJ. C. K. 27'-'; MrlCilwoni'^ v. raliiin; 28 C. I'. i;{2. ' and cases cited; McIiilimrdH v. MrLcau, 48 IJ. ('. \\. 454; Suiilvr v. Bank of 'Jm-Mifo, 5 L. J. N. S. 100; Biini^ v. Sf>rl, 2 b. J. N. S. 18!). (a) Should the Bailiff, for instance, liave reason to believe that a landlord's claim for rent was mcr.dy fictitious, or that no rent was due, or in any sucli iase, then it would be his duty to interjjlead. (h) It must virtually he a third party: Fcnwkk v, Laycock, 2 Q. 15. 108; 3 r. C. L. J. 11I7 2'4'; 4 U, C. b. J. 12-38. ((•) llevised Statutes, cap. (58. ((/) " The Clerk ought not, without the applicaticm of the Bailiff, to have issued the summons" {}«■)• Draiwr, J., iu Rcij. v. Dotif, 1,3 V,. C. It. page 400) ; hut if hftth i)artie3 appear, that objection would be waived : Ih. When interpleader process is issued, the effect is to arrest all proceedings in any actioji th,at may have he(,'n commenced against tlie Bailiff's connected with the claim, for it is enacted that " thereupr)n any action brought in any of Her Majest3''3 Superior Cimrts of Hecord in Toronto, or in any local or inferior Court in res]>ect of such claim, shall be stayed." Kvery liailill' deenuug it necessary to seek the protection of an int<jrplea<ler should act ])romptly in the suing out a summons. He has in certain cases tlie choice of two Courts in winch to proceed — the Court from which tlie execution is'sued, or the Court holden for the division in wdnch he makes the aeizure-vvlun it liaj)j)ens that the seizure is made iu another division. The aiii)lication to the Clerk should be in writing, and care should be tiiken to obtain the correct name and address of the claimant. The goods claimed should also be sfteeilied, and the reasonable value set down to guide the Clerk in rating the fees, and for the information of the Court. The date of the seizure should also be named. The f(dlowing, or ;i Jorm to the like effect, would answer : Bailiff's applkatmi for fuf(-rpl>'a(kr Summons. In the Division Court, County of Between A. B., Plaintiff, and C. D., Defendant. By virtue of a writ of execution (or "attachment") in this cause, dated the day of ,18 , from this Ccmrt, I did on the day of , 18 , seize and take iu execution {{ipecl/i/ tjoods, chattels, d-c, -^•iA'^.^i ■r. ''V. ■ ■< J. I f, .* ':^ : « ,■:■?';:..• ■a. .,^'^.i:V:^- »• • ■ iV f f :'|> ' ; • ..-J. -t-^.J ■ • ■■■:'■ ' 'v' • '' ,-'''5f' ■';•.""' , .!•; " - r,\ ■■, ■„«^''. ' ■Jl, . *»•, .- " '*■ > ■ ■,-■, *.-J.- ■■(■.■■ T'xr^ ■■<'•■•■ ■ 216 WHEN ACTION MAY BE STAYED. [8. 210. Wlicn Rc- with tlie oxocutioii of such process, may, wlipthor Iteforo or after tlio action lias been brought against sucli ollicor, isHtu; a smnnions (t;) calling before the Court out of which such j>rocoMS issued, or befoi-e tlie Court holden for tlie Division (/) in which th(^ seizure under such process was made, as well tiuiis ill tlio the pai-ty wlio issued such process as tlie party making sm-li Ccimt^i claim, and tlieieupon any action which has been broiiglit in til.' siiiijtit any of Her iMajesty s superior Courts ot hecord, or in a iv stayed, local Or inferior Court in respect of such claim, shall Ite staytnl. {ij) Costs. 2. The (.'ourt in wliich such action has been brodght, or any Judge thereof, (m jtroof of tlie issue of such suuinions, and that the goods and chattels or property or security were so taken in exc^'ution or upon iittachnient, may order the jMii'ty bringing such action to pay the costs of all proceed claimed) .is tli.e ]»r(>i>erty of tho defendiuit, the following' gootls and ctiattcis, viz., one h(H\su ;uid cow, &c., the whole abtnit the value ot jiouiuli-; (now (lolLirs). E. F. of tJie township of , &c., now claims the .saini •IS his proporty. You will tljureforo be pleased to issue an interi>le.a(ler sum- mons to the plaiutiiJ" and to tlie sai(\ IJ. F. acctvnliny to the statute ui th.vt W-lialf To Clerk of tiie Division Court, County Dated, &o. 4 U. C. L. J. .38. Kail iff." (r) The iasiie in such n ease is, wliother the goo<ls tiJcen nn<ler the attiichnient wore at the time (>/' the neir.inr the property of the ciaiuiant, as again.st the creditor: Dojfle v. f.it.-<h(.)\ IG C. P. 'J()3. The execiitir»n creditor is not iialile for seizure of tlic goods: W(tlkrT v. OldliKj, 1 H. & ('. (>21 ; Tinkler v. nUdcr. 4 Ex. 187. (,/') Should a B<ailiff l>e calle(l on to enforce an oxocntion from aof/thcr Divi- sion Court in the same County, and .a claim made to the goods, he eoald iasiu- suninu)ns from his own ('r)urt ; and the same rule would apply if a Hailirt'wont out of his own division to ;nakx' a seizure. Tlie claim musls he adjudicated \i[)(ii! in theCourt from which the suinmons issued: WdsfiiiHjhiu v. Wehh, 10 {'. C H. 'J.')-. {if) The regularity of the proceedings in the Division Court will not he iufjuiivd into on an api)li('ation to staj' proceedings : Finlai/sun v. floirard, I I'. II. 'J'_'4. Application should be made iii the Court in which the action is brouglit Wanh»))(/ton v. Weh^, 1<) U. C. 11. 232. An acti"ii <»l i-l. vin •<«■ th-.i .■^luiu- goods about which .an interpleader issue was ti" d will Ik' f<taytd : Vuron v. Graham, 18 U. C Jl. 31."). The a)>pli(-.iti' ' -tay ])rocee<ling8 can only 1h' iniwle hefuve the adjiK/lvafion on the .der summon : if made after, applicatiim will be refused, and the defi , can only plea he adjudicati<m SrhanM-horvcv. Trad-t,30\J.V. li. Ty-i'A , " -^ - - As to *he stay of proceedings generally, 143 ; Walhr v. Oh/iuif, 1 H. & C. ()21 ; Al>/H,lt v /r^hanh, 15 M. & W. I<t4 Winter V. Bartholomew, 11 Ex. 704; IlolHirv. Lmirie, ',]{'. h. 334; Jei^f'tpy- Crawley, 15 Q. B. 212 ; Cater v. ChiijueU. ]r> {). B. 217 ; /ic.s« v. /Inijes, 1 H ^ C. 718 ; Tanner v. European Bank {Limited), L. K. 1 Ex. 261 ; Mercer v. Stu, huni. 2 H. & N. 155 n ; Booth v. The Frentan and Berlin Raiheay Co., 6U. C. L. J. 57- (larmer v. Vvirait, 23 U. C. H. 47!) Car/ ,'(){■ v. Pearrf, 27 E. J. Ex -mm-^. >•- - ■-•-- ■■•» *. 21 1.] ADJIDICATION or Tin: .Jl'l)(!K. 217 iiii,'s hud upon suoli i\ctii)ii iiftcr tliu issu(f of siu;h smiiniong out of the J)ivisiou Court. I •; . • .iv 3. The County Judgo haviiifj jurisdiction (//) in sucli rmintr Division Court sliall adjudiciito upon tho chiini, (/) and iuiiiiiiicatc iiiiii<e such order Ix'twcen the parties in respect tiiereof, and claim. of the costs (k) of the proceedings, as to him stieins fit, and / such onUir shall he enforced in like manner as an order "^"^ '^ iimde in any suit brought in such Division ('ourt. and shall <* ')P'''/ (<</'/ - 1)0 tinal and conclusive between tho i)arties, exceitt that , , , ,.,y ' ' i (Oft/ I,/ .y/^ ,(/ - Uf/ upon the a])[)lication of either tho attaching or execution crt'tlitor, or the claimant, within fnurteen duy.s after tho trial, the Judge may grant a nc^w trial (/) upon good gnmnds shown, as in other cases under this Act, upon sncii terms as he thinks reascmable, and may in the meantime stay pro- mMlings. C. S. IT. C. e. 19, s. 175; 32 Y. c. 23, s. 2G ; 40 V. c. 7, Hched. A (71). y^ rSII. So mu(!h of the Act passed in the eiglitli year of rmviHinns tlic reign of Queen Anne, entitled "Jn Act for the better u,\;u\sAw Hecurity of hcufs and to prereiit rrauds commdted i»j leti- n)i(s," as relates to tlxi liability of goods taken by virtue of sAnne.e. 14. :niy execution, shall not be deemed to ai)i)ly to goods taken ill) Sliould the sunimoiia not properly be issualde from the Court from which it was issuud, tlio Judgu would })ave no jurisdiction: see notes to sections 11> ami r)3 ; luit see Hiddan v. lii^ntt'i, 43 IJ. C 11. «)14. \\) Tlio .luilgo must try an interpleader issue without the aid fif a jnry [Miuik'h' v. McK'ndci/ ct <d., 15 ('. 1'. "»()) ; and the (juustion of title to land does not oust his jurisdiction in such a case : Ih. His deeision is iinal (Kiiotc v. SfidiiKiii, 10 C. P. 43;")), even tlntugh informally expressed {(Jlijihaitt v. Leslie el ai, '-'4 U. C. K. 31)8) ; hut there uuist be an iKlJuilicntiiDi : ClmlUmr v, liiiv;it.<ii, •J U. C. L. J. 137; see iJcalh v. Jlarrison, L. It. (> i')x. 1"). An inter[>lrader issue cannot he removed hy ccrt'turan: lUtsuvll v. Willinnis, 8 U, C. b. .1. "-'TT. {L-) Independently of the Judge's order, there is no duty east on the execution i.Todicor to pay the costs of inter|)leader proceedings: Ji/oor v. J/iistnti, ITiC. B. -"."),;(('?• Jervis, C. .1. And a Sup^'rior ('i>\nt has no jiower to interfere with County Judge's discretion as to costs: Vliurchirdrd v. ('ntfiiinn, b. K. -(). I>. 18. ( 'lists follow the result almost as a matter of course : Jiellhvu.se v. Oiinn, 20 U. C. K. ."ij.j ; Wilson V. WiL-iun, 7 I*. K. 407. (/) The law was formerly that a new trial could not be granted in interpleader c:isi'.s (/?f(/. V. Dittij, 13 C (". 11. 398) ; but now it is grantable as in other eases ; as to which see notes to sections 107 and '210, and II. 142. On the general (juesti on of Interpleader, see Rev. Stat. 741, et sei{. ; Hob. & Jos. Digest, 18!>2 ; Fisher's l>ij,^st, 41)70; Arch. & Lush'a Pract., "Interpleader;" lloscoe's IS. I'. 1252. /. .V .I" %''/'•, \..\^- ..\ ' » I*' '''■ " '-■''^■'^^^:'' • - .•<! >C ^. i^<^ <^^< ^ct.^,6^ /^ /■/ ^<U/ 1, su .?l HV C-' \ . > -^. *■' t ^.wfe.^-,. .■'• ■■* ■ .' - V ' ■ ■ . " ■ . ■ ■ .■•"••■. ' '! ■■ /• -;•■ -:;-^', •■ ■ ■■; ■ "••X.*{" . ■■»*(f^.-'r : •■(.'..* ..-U •> •:^S^I: .-^i-:*' v'.*^-;'i^''' 218 landlord's claim fou rent. [s. L'l in oxecnition (m) under the process of any Division t-'ouit. but tlie landlord of any tontuient (ii) in which any such goods are so taken may, by wi-iting under his hand or umler (m) The Statute of Aruie only applies to seizure vmlcr execution: Woodfall's li & r. eap. 10, s. 7. 'I'liis section lias no greater appii'-ation. It applies only "to gooils taken In execution ;" ami only when such {.^oocls are the projierty ni t!ie tenant. iSliouhl the goods of a stranger be taken, the lamilord woulil Iihm' no i-iglit to give notice to tlie Hailitl' under tins seeti'm : Heard v. Kn'nihl, S J:. k II SI).') ;' Foi'hjer v. Tanlor, o H. & N. 'lO'l ; While v. Bin.iteo,!, 13 (,'. li. :i(l4. It is submitted that gooils seized under an attachment against an abseondiuj,' debtor are not, under this section, subject to a landlord's claim for rei>t, it not being an "executiim." 'I'he statute would apply to an execution for costs oi defesice : /fenc/iet! v. Ki/nj)s),ii, '2 Wils. 140. (n) A "tenement" is defined to be "i)roi)erty held by a tenant :" Whartdii, 73,3. The notice cannot be given unless there is an eji.-^tiiKj teiidiiri/ at a ii.Mil rent ; ami if the tenancy should be deterniined or has expireil the notice cdiilil not be given: Cuok v. i'oof:, .Andrew, "-Ml) ; A'iV/r// v. /.'//A, 10. M. & \V. 101 ; ami Iiiselci/ V. llijle, II M. & W. I(i. A mere agreement for a lease under wiiicli iki ; ■'.n had been ])aiil wiuild not be sutlicient : Hi.: see llitnd v. Hall, '2 Ivx. 1). 35.5. >i'or dois the statute apply if the lease has been Irgally iieterminiMl by a notice to quit or by entry or ejectment for a forfi'itui'c : IhxIijMin v. Haseoiijuc, .') li. «t Aid. iSS. It applies to forehand rents i)ayal>!e in advance i/htrrifan v. Barrji, 7 I'riee, OilO ; hnek v. linit'difU, Mc( "lei. 217) ; ami even when reserveil in !i mortgage by way of further security for interest : yif/r.s v. /idfii-di/e, ,"> II. & N. lM'.(. The statute \Miuld a))ply to cases of lessee ami undertenant of ai)artmentd : '/'/iiininod v. Itieliiinl-'iiii, 7 Ihiig. 4'JS. The l.antUord can only claim rent whieii was <lue at the time of the seizure, and not what accrued aft' r- wards: J/o.skins v. Knii/fd, 1 M. & S. '2io ; llufnoldnv. Barford, 7 M. & <•• 44U; Toinlinson v. Jarris, 11 II. C U. ()0 ; Vmice v. Buttan, V2 U. C. 15. (ilW. And this is also the law as to growing crops: Confrere \. Erett.i, 10 lOx. '.MIS, Wluirtiii) v. Xtiiilor, \'l (). I'. ('<7.'>. it is to be observed that the words of the seetio:i are "any rent in arre.ir l/ien due." The Statute of ."vune was eonstnictl liberally, and in favour of the lamlloi-d : llenelntl v, Kinijifon, '2 \\\\i^. 141 We see no reason for construing this section in ;iny dill'erent . pirit. 'J'his \m<- vision would not apply to a case where the landlord was himself the execution cred'tor: Tii'i/arx. Ltnu/nn, (i Bing. uSO. \\'lier(! th<! execution creditor ]);iy-i the landlord the rent ;if<"i r s, re. the Hailill' hohls the proceeds of sale fur the rep:iyment to the creditor (> iiic rent )iaid ((//'/ the amount of the execution : /yoe/cart v. (•'rni/, '2 L. .1. N. S. 1 (),'{. I'nder the Statute of Anne it is not necessarv to give notice "in writing" to the Sheritl' (/y/v*;/-// v, Jt'iittan, 7 U. C U. 07 ; Sliarpe v. Fortune, !) C. I'. r.^H ; Tomlinmn v. Jorri.-^, 11 U. C. K. CiO ; ('iti/of Kiiiijston v. iSlinn', (} I'. C L. .T. 'J80 ; Cor/nmtfionof Kimjuton v. S/uur, 'J(l U. (1. I!.. '22',)) ; but under this statute written notice is r'mdered necessary. Tiij landlord could not distrain the goods for rent after seizure by the liaililf : S/hirpe V Fortune, xti))r<i : Craiii \. i'mi;/, \',i L. .). N. S. ',i'2{\. The fa.tuf ,i landlord b.aving joiniid in a boml that the goods distrained should be fortii- cf>ming for sale upon a Ji, fa. was held not to prejudice his claim f:)r rent {Hroun v. Rutlon, 7 I'. <" I*. 07) ; nor would the landlord's having distraini'l and afterwards abandoned the distress, nor even his having bid at the sale of thegoods, prejudicesuch cliiim torrent: ///. In Vitneev. h'uttiin, \'2 U. < '. I! ty.V2, the facts were, that jtremis":; Inid been let for a year at a rental of ,£7r». to be paid on the lirst of .\lay ; ;ind it was agreed that if the teniuit hIiouIJ leave before tiie first of .May, the rent was to Id'come payable iin- mediately. The tenant left on the .Saturday before the first of May, and cm Mouday the goods were seized uudei u.xecutiou : it was held that the laiullnid s. 211.] LANDLORDS NOTICE OF RENT DUE. 219 the hand of his aj?ent, stating the terms of lioldinsi; (o) and the rent ]>ayable for tlie same, and delivered to tlie Bailiff making tlie levy, claim any rent in arrear then diu; to him> not exceeding the rent of four weeks when tlie tenement has been let by the week, and not exceeding the rent accru- ing due in two terms of })ayment where the tenement has was entitled to his rent. SlKuild a, Hailift'. acting in gnml faith for all concnntd. ai,'ree to pay for having g'-ain llircsiicMl for the purpose of its hettei' sale, ttic eXJRll; es of such tliresliini; would he allowed liiin : Hnlhroilh v. Furtnuc, lO 0. V. 109. Should a i>;iiliil' nu'iely make an inventory of gooils seized, leaving no one in possession of them, they would not he in the enstody of tln' law so as to ])revent the landlord elainung for tiie rent due at the time the exiiution w;i.-t sul)Se(iuently attemjjted ti) he euf()rec<l : Hartx. Ui'ijiiiiIiIk, \'A V. P. .")01. Where at the time an execution was ]»laced in the Sheriti's Im tl ini'- tliere was a e lain for unjiaid rent, it was Ik hi that the Shei'itt' could not di .y tiie seizure until tile execution creditor lirst pai<l oH' thereat. His jiroiier oui-se was to sttizc. hut he was not compelled to sell until the rent was paid ; and if the execution creditor would not pay it, he might withdraw from possesidon. In tliis case the Sheritl' ab.staine(l from seizure on receiving notice of the rent lieing due. of which the execution creditor was aware when he issued the ji. fa. ; and, before he seized, certain crops were removed, siiliieieiit to jiay the jdaintiii's el it was liilil that the SheritV was liable : A'«'/v v. MrCm.k (I/, H\ (". I". 47.'). iim 'I'lu same prinei|ile wouhl aj»ply in the case of a iiaililf. Should a HaililV realize the amount of an execution, he could n<it justify tiie retention of the money on the >,'iiiund that the landlord had made ii claim to the whole of it for rent, Mhich he lia<l not been able to jirove tile truth of : l/a// v limlihii, 7 1-. T. N. S. 7-1. If a I'ailitf receives notice of a claim for rent to a greater Runi than the value of t\v lis seized, he should withdraw from the seizure and return the execution '///(( III F,istrr\. Uiltnii, 1 Dowl. ;{■"•; Cnrh M •JS.'). When the Bailiff has n iiiiilfiiri' ',» (.) H. -I'lW I'd notice of rent due he should i' mil avour to Hccure legal evidence on that point, and, if pcssilile, inspect the lease, or make iiinuiry about the terms of liolding : Auiiiixthn v. CluiUin, 1 Kx. "27!), /" /' I'olloek. ('. B.. at page 'JHO. He sliouhl also fouiiwith give a copy of the notice to the Ltxeeutioii creditor or his .Attorney, so that, if so advised, he might (piestion the landlord's claim under section •JIO. or < ith Altiioiigh goods seizei 1 1. \ a Haililf eou'd not bf distrained iii his custody, still such gonds nius t bi removi'i rtitliin a reasoiii'.ble tinu; after tlie sale in order to ])idtet't the I'ights of the purchaser against a ilistross for rent : llmjlus x. Tmrir.K Itit'. I'. "2X7. ill) The terms slnmld be particularly set out. so that the lailill may receive RUi'li re.-sonable inforiiiation as will enable him t( o (lecKle upon V pursue tl '/'mill. nisiiii V, ./< , hat couise to II y. ('. n. t>0 If the Hailitr siii>uld disrciian: le no tiee, he would be liable: (litHiiii'illi v. Fnrtiiiu', \) ('. I'. '_M 1 ; Itiilitrt.-iDH v. Furt inn- 9(1 w 4-j: Th wnliiij' is i)v tl le statute rcipiire d t(i ontaii Jiarticulars ; and in that respect this secti(Ui ditlers from the Statute of Anne : Sli'ir/ir y. Fuitinii, !M '. P. ."I'JIJ. The f(M'ni of landhud's claim foi' reiit will be fi'Uiid at rorm 'JO. It must be in mri iiuj, umler the hand of the landlord or us age nt. Care should be taken in dra \Miig up tin liotu am 1 th.' P.ailitr should have nothing to do with it ; otherwise, in the event of disjaite. he niiglit have mi right to an interpleader: dix \. Ihilm,'! 1). it L. 7lS. The notice flioiild be given before the sale, ao that the Hailiil" might sell for t\w rent .is well. nil lei the 212th section : sec ArnUl v. (iartictt, \\ P.. it Al.l. 410. As to th; cliiiu of i!ie landlord generally, sec U. 0. L. J. 228, 2GI ; 7 U. C. L. J. Vi, 14. C^ .., . "^ •;;•:• < •l i'^' ■I Wy-ti: i- ■ P^.-'lA . . -■, . '.'♦•A.-V,'. ■»■ ■ •. v..l.'.'iV. ':• ■?.■*.•'- .:■ *■■ ... , • • • .« '.i' ■' J-'s.-i' '''■".■■»•■■ 'i-': " ■'•V.' ■!«■'•i>J.- •.■-.r--' •'■J..-lr' V^A-',' '^^;e- '•- ,'"<)!- ,■;•■'■■.-■■ " :\:-n-f.^ ;:»?•*. ^ ,- -**■■' •^:' i • ,« • » ■ff ••. ' .■ . ■• * '" •', ■*/.■ !■' .-., ,V. *,*■■■ . .•^*' . '* 'v-L?iV „ ■-■l.'>. . ,r •*--■.■•■'.:„■.■,' .*• 220 HOW BAILIFF IS TO PROCEED, [ss. 212-214. IIkw tho niiiliff is to been let for any other term less than a year, and not exceed- ing in any case the rent uocruing due in one year. C. S. U. C. c. lU, s. 17G. ^iVi. Tn case of any such claiii. being so made, the Railitl" making the levy shall distrain (/>) as well for the amount of the rent claimed, and the costs of such additional distress, as for the amount of money and costs for which the warrant ot" exechuion has issued, and shall not sell the same, or any part thereof, until after the end of eight days at least next follow- ing after such distress made. C. S. U. C. c. 11), s. 177. 313. For every additional distress (q) for rent in arrear, Niu^h cases, the Jiailitf of tho Court shall be entitled to have as the costs of the distress, instead of the fees (r) allowed by this Act. Ri'v. Stat. ' ; . " . the fees allowed by The Act respect Inq JJistresses for small Bents and Peaalties. (s) 0. S. U. 0. c. 19, s. 178. !?I4. If any replevin is made of the goods distrained, (t) so much of the ifoods taken under the warnxut of execution I'et'.i of liailiir in 65. I r rp pie via IlKUll). {p) The Biiilitf cannot (listr;iin for the rent upon the goods of a stranger, iuiy more thaa he can seize sueh property on the exeeutioii : Beard v. Kiihild, .S K. & B. S(i.-) ; Fi„il.,rr v. Tdfilor, .') H. & N. '20-2. The HaililV can he sued b. tlie landlord foi" the money wliieh he makes for rent, as money had an<l received ( l.uckfirt V. drni/, 2 \j. .1. N. S. 1 (>,'{) ; and it would he garniahalde in the Hailill'.-' liands in a suit against the landlord: //(. As to mode of distress for rent liy n landlord in ordinary eases, see Woodfall's L. & T. cap. 10, sec. 4 ; 7 b. J. N. S. '2'tH. lint under these sections of tlie Division Courts Act, the formalities wliieh are uecessary in a laiuliord's ease do not seem to lie re(pured of a Bailitl". The chiini for rent apjiears to he enforeea))le as if it were an (ttlditiotuil (iniDinit ]iay- alile on the exeeution, and for tlie making of ,sueh . :ditioual sum a separate allowance for costs is maile. On tlie sulijeet of distress generally, see I!. & .l.'s Digest. L'OIO; Fisher's Digest, .'Ji'i'J; Lr/idin v. J'/iil/ji,tf, L. 1!. ]() Kx. 242; Aii'/hluirt V. liatlikr, 127 C. 1*. 07; 7 b. J. N. S. '-'58; Lurke v. MrConkaj, '2(i C. \\ 475. ('/) Tiie "ailditional distress" liere referred to means that which is necessary for the liailitl' to m.'ike in order to realize tlie amount of the rent over and alxne the moneys to be maile on the execiiti(jn. (;■) Tlieso fees are as follows : " l^evyiiig distresses under eighty dcdlars $1 00 ^blll keeping [lossessioii, per diem "■'> Ajipraisemeiit, whetiier l>y one ajtpraiser or more — two cents in the dullar on thf mine uf tin' (jno'ls; If any printed advertisement, not to exceed in all I 00 Catalogues, sale and (Muiimissioii, and delivery of goods— /(tr ccnti^ in the. dnllnr on the net produce of the ndle." Key. 8tat. page 798. (») Rev. Stat. cap. 65. (0 It will be observed that under section 212 the action of the BailiflF under tiie execution la called a " levy,' and his proceeding towai'da realizing the rent iV.t .■-•; « . «s. 215, 21 G.] RENT TO BE FIUST PAID. 221 ^■•« '•'. •, slifill be sold as will satisfy the money and costs foi* wliich tlio said warrant issued, and the costs of tlie sale, and tlio surplus of sucli sale and the goods so distni'ued, shall ho )eturned as in other cases of distiess for rent and re|»leviii thereof. C. S. U C. o. VJ, s. 171». 215. No execution ei'editor under this Act shall have ^'ii'.fi I'l'"! Iniil ,-i claim his (k'ht satisfied out of the lu'oceeds of such execution and |" nut is to _ '■ 1"3 lust jianl. (listress, or of such execution only, where tlie tenant re- jilcvios, until the landlord who coiifoiius to the provisions of i:"s Act has lieen p;iiil the vent in arrear (tr) for the p(.,. Is hereinbefore mentioned. C. S. U. 0. c. I'J, s. ISO. *itii, Ko costs shall be recoverable in any siut brought Costs not , , 111 li 'iiVrtallll' ni !iuy Court (i') for the i-ecovery of any sum awartu'd l)y in .my .ic jiidginent ni a JJivision Lourt without tlie order ot tlie ,ii.ii t'.nirt Judge of the Court in which such snit is brought, on sutli- without cieut cause shewn. C. S. U. C. c. 11), s. 115. *Vee also lice. Stat. c. 50, s. 344-. OFFENCES AND PENAbTIE.S. FoKoiNO Skal or Puockss. [Section 181 of C. H. U. C. c. I'J, is as follow.^ : 181. Every pai'SDii who t'urges (w) tlio hc:iI or .-^iiy process of the Forgery nf a "distress." The replevin spoken of in this section refers to the gooda dis- tniiiu'd as the "a(l<litiim;il distress" for rent. .At ( 'oiiiiiioii baw a tenant had ;i riiilit to re2)levy as for an 'llegal distress liis goods distrained fur rent, and this sei'tion ])ri'serves to liiin that right: see notes to section rid. l-'or a full ixpoi:iti(Ui of the law of r('[>levin for iilc ral distress for rent, see Woodfall's L & T. ca]). .XXI.; H. & J. s Digest, li'Jm; Fisher's Digest. 740S. (/') 'I'hia section is somewhat oliscure. If a 1;: -dlord should give notiee to the liailitf of rent in arrear, and the Baililf shoulii make the atlditional distress thercfcu', when in reality v i rent Was in arrear. and the tenant replevies the goods distrained, and suec^ls in the aetion, it eannot be the meaning of the Hction that the lamllord's claim for rent is in^vertheless to lie satisfied ont of tiic proeeeils of tiie execution. Ft is sulmiitted that the meaning is, that if at till' time of the seizure by the IViililf n nf is in iirntir, and the landlord con- forms to the Act hy giving proper notii'e that he is to lie lirst paid his rent out <if tile proceeds of the goods, no matter wiiat hecoines of the replevin. 'I'here will he considerable ibfiiculty in the practical npiilication of this clause of the statute, and its meaning must be left to judicial determination in oases as they arise. It is made a condition of thi' landlord's being lirat paid that he "con- forms " to the provisions of the statute. {>'] As no action can be Immght in a Superior or County C'(Uirt on a judgment 'if a Division Court {Arr/'/nrndn v. Ftirrtstcr, 11 U. 0. H. 80'i ; Ihniudli/ rt nl. v. S>,-triirt. 'J") V. C. 11. 3!(S), this section has reference only to actions in Division Courts on judgments of those Courts. As to the analogous section of tlif C. I,. V. Act, see Rev. Stat., page 083 ; Har. C. L. I'. Act, 42.") .and 4'2«. (w) See Koscoe's Grim. Ev. 8tli Ed. 6'2b and 557 ; 7 U. C. L. J. 229. • 2?^ "V>'>,;'. '.<>: j: •»,.■ 'v. >•■•'■■ ' ».■> • .■■:.-■,• .rv--' ■ ' '"V.T-;-''. , Ai-\»^'". •^■•' i iiPii^i- 1 ■ ?v--'7^"--/'.*^^. ;- ' V.V ...;^<;-•-5;>^ . V-y^^. v^T : ^'■•:'.■.:^"^'■ , ,' .^c:v>^->v-^ ■ :•>:■,■fV^?^■..■■ *• .; ■ '., ■ ■"« ■" «• ... i;.;-., ■' •■-■ '."■•'^/. • *1 ■ ■ . ^', :-v>^.r-u-, . .>:.'.'.■ ■ ■^■-i*'^ , .V* 4^;i.\* CONTEMPT OF COUJIT. [s. 217. «im1, I ro- IMS.i, (Sic. CDiitempt of C'uult. Court, or who serves or enforces any such forged process, knowing tliu same to be forged, or delivers or causes to be delivered to any p'jruon any i)aper falsely puri)orting to be a copy of a process of tliu Court, knowing the same to be false, or who knowingly uctd or pro- fesses to act under any false e )lour of process of the Court, shall lie guilty of felony, l;}, M V. e. 53, s. 8G.] COiNTEMI'T OF CoURT. (x) 211- If any })er.son wilfully insults (?/) the Judge or acting Judge or any officer of any Division Court during (x) Every Court of Record has an inherent power to punish for contempt: Ex parte. Pater, 5 H. & S. 2!)!) ; Eu: parlt Let/t and the Juflije of the duuutij of t'arlitou, "24 <.l. 1'. 'J14. The statute here confers a power on the Judge of a Division Court which woidd belong to a ('ourt of llecord as one of its inherent attril)utes. Jn Cantti WU/wii'.i case, 7 Q. 11, page 10 Jo, Lord Den- man, C. d., says: " Hut here it appears that a contenii)t was supposed to have been committed. That is, a case in which it becomes the unfortunate duty of a ( lourt to act as both party and ju<lgc, and to decide wlietiier it has been treati.-d with contempt. We cajmot decide upon tlie face of this return (to lialnns corpun) that they have come to a wrong conclusion. A Court nniy be insulted by tlio most innocent words, uttered in a peculiar manner and tone. The words lure niiglit or might not lie contemptuous, according to the manner in which the}' were spokLii, and that is wliat we must look to. If llie words nught be contemptuously spoken, that was an ample occasion for the decision of the Uoyal Court (of Jersey) with which no other Court can meddle. I'^vcry (!ourt in such a ease has to form its own judgment." At i)age 1017 of the same report, Williams, J., says: " It is (piite obvious tiiat contempt may be shewn either by language or manner. We can imagine language whidi might i)c ])er- feetly proper if uttered in a temperate manner, but might be grossly impi'ojHT if uttered in a ditferent manner. No one not present can Ije a competent juiltre of this." Speaking of the prisoner's conduct in that case, Wightnian, .1., says, at page 1018: " it seems to me that it might l)e contemptuous as being highly disrespectful, idtiiough the words themselves are not necessarily so.' In the case of Jii re flic Jiitli/c of the iJlrlsion Court of Toronto, 2,'} II. (J. 11. .'17f>, Draper, C. J., is reported, at page .S78, as saying: " The power of punishing contempts by line is given by statute to the .ludge of a Division Ceurt, and such a power, tlnnigh like any other power by which a man becomes as it were a judge in his own cause, and can exercise his authority witiiout any direct control, and perha[)s witiiout any resi)onsibility, it is dangerous as o[)en to abuse, is nevertheless found uulispensal)le. Contempts are perhaps the mo.st undehmvble of ort'ences, for they may consist in looks and demeanour, as well as in positive acts and ex^jressions; and tliough our statute uses the word 'wil- fully insults,' it does not appear to nie to change the a[)plieation or extent of the power given." ^-^gain, at page ;i7'J, the same learneil Judge says: •• It is nu)re easy to feel than describe how an advocate nuiy exhaust the patience and wear the temper of any .Judge bj' eontiiuialiy keeping on the verge of what he well know.s to be forbidden gnuuid, and by occasionally overstepping the line after oft-repeated dieek and caution from tlie l'>ench, in the antour, real or att'ected, of Ids zeal for his client. Wiien such conduct is long pei-severeil in, it produces almost inevitably in the Judges mind a sense that it retjuires scrupulous watching in order that tlie advocate may, if possible, be restrained witiun proper linuts ; or, if he will exceed them, may, it necessary, be promptly puiushed; aiul thus it may well happen that the Judge may pronounce the advocate to bo • « - ;■ 217.] PKNALTV FOR CONTKMPT his sittiii,^ or attendance in (!oiirt, or interrupts the pro- (■,H'lin£,'s (z) of the Court, any Bailiff or oHieer of the Court jiiay. by order of the Judi^e, take the offender into custody, (({) and tlio Judge may impose U[)on the oti'ender a fine not exceeding tv ;Mity doHars, and in default of immediate pay- ment (. ) thereof, the Judge may by warrant under his hand and seal (c) commit the offender to the Common Gaol of the County for any period not exceeding one month, uulesH such tine and costs, with the expense attending the commitment, are sooner ]»aid, C. S. U. C. c. 19, s. 182. Ill contempt, where a bystander, who knew nothing beyond the immediate oi'i'urrence, might deem the <lecision harsh or even nnwarrantablc. " In L'.r purlf l\ii('i\ i") H. & S., at page SI'i, Bhickhurn, .f., says: "I aj^rce that wlun we art! considering a ((Uestinn of contempt, we outfht to see whether the interior ('niut had reas(»nal)le groumls for adjudging tliat a contem[)t Iiad been com- mitted ; hut we must liear in miml that the Court is the Judge wiietlier it has iifen treated with contempt, as 'vord Deimian said in the case of ('(irii.i IVilsdii, 7 (i- H., !)84-10ir), for, Uioking to the nature of the contempt, it may consist in tlie peculiar manner and tone with wliicii words are sjxiken." 'I'iic jiower con- ferretl on the Judjje ))y this section is confined to contempts committed in Vuitrt, and he would have no power to proceed against a jier.son for a contcmi>t eiiinmitted out of (,'onrt : fin/, v. Lii'roi/, L. 1'. 8. (). B. I'M; see also 4 U. ('. L. .1. 'J4:i, and 4 IJ. C. F.. .1. '2r,[) ; II L. J. N. S. lolj, on the general ()U(stion of eiintemi)t of (.Jonrt. Should the .Tudi^e act on this section, tiie penalty can be iiiiposeil and enforced instantly. Wdtt v. Li'jrrfiroor/, L. Jv. '2 Scotch Ap[). SOI ; see als(. Ihilrd v. .SV0/7/. '2'A IJ/C. It. (i'24. In the case of /// m Pol/an/, L. R. '.' ['. ('. !()(), the Judicial ('onnnittee lirhl that where the (.'ourt did not imjiose tlu' tine on tlie committing of the contempt, but delayed it, and then on a aub- SLqiient ilaj' imposed the penalty, without an opportunity of the party's answer- ing,' the charge, such j)roceeding Avas illegal. As to letters written reflecting on a Judge, see In re Wallace, L. 11. 1 P. 0. 283 ; /** re Ramsay, L. K. 3 1*. C 4-.'7. I.V) See 23 IT. C. R. 376; .^wM v. narnham, 1 Ex. D. 410 ; 1.1 L. J. X. S. 7.3. (:) Anything nnseendy said or done by any person which woidd interfere with tlie <!onduet of tiie business of the C'ourt, or tiiat would be highly indecorous, might be the subject of a penaltj' umler thi.s clause. {(i) Power is here given to the .Judge to order the person to be taken into custody, so that he might lie brought before him to answer for his misconduct. The limit of the line is twenty dollars, and no greater sum could be imposed. [h) The word "immediate" here does not mean "instantly." A reaS(mablo time would be allowed the delinijuent for ])ayment of tiie money : TamH v. WUxon, 4 B. & S. 450 ; Forxdtke v. Stone, L. It. 3(!. P. «U)7 ; J/a.sw// v. SUulen, h. U. 4 Ex. 13; Maxwell on Stat., 311 ; In re SHlenre, 7 Ch. D. 2.3S. Aa remarked by Coekburn, C. J., at page 4.").3 of 4 B & S., " he migiit require time tiiget it from his desk, or to go across the street, or to his banker's for it." {e) The ])lain words of the section re(piire this commitment to be under tho hand and seal of the Judge : see also 3 L. C <}. 14. It diiiens in that respect from a commitment under the 1 82nil section : .see Rules 101, 102 and 103, and I'orm !)6 ; Ex parte lleijmnnn, J>i re I/ei/inaim, L. U. 7 Ch. 488 ; Ex parte ii'iUers, In re Waters, L. K. 18 Eq. 701. .■•;••..«.,- i.: \ -. >■■•.■■ '■' !"■ .1" -11 '.:.■■ ^--i ».. ;>* ■ " ^.^••,y; 1 ■ • - A. : , ■.'.« * * .* . ', > ■' i * ' ' ' 'J • ^' •:^:'>^ ■ t t f ■ '. 'i. i ''i.V- .- ■ - ^ - ■ ".. ' * «■ ■ ' ' ■■ 1 ■•,•■-•'(.■.»■.>» - ■■■•■ ^"Vi '•'';. ....•;^--!V<M-.''- : *•■■'.■*-.•-'>.■■ ^^/!' ■ .1 •'^' •, .^.1 .,■ - •■ ••■ ^;v*;^^*,v■• . ■ c » . '<. ■ ■-.,•»..■ •* *• .■ ^ ' • • • .''.■' ■< ' V • I ■ ■ • ^» »• ^ I ■ 7 , .■ I 224 MISCONDUCT OF OFFICERS. [s. 21 S Ifnnilifr assuultt'd. Eesistino Offickks. ((/) [Section 184 o/C. S. U. C. c. li), <V as folhws:— 184. If any oiHcev or Bailiff (or his deputy or assistant) li»; assaulted while in the exeeutiou of his duty, or if luy rescuu he made or atteiiijited to he made of any property seized uniler a pro- cess of tile Court, the 2)erson so otlending siiall be lial)le to a line not exceeding twenty dollars, to be recovered by order of the Couit, or l)efore a Justice of tlie Peace of the County or City, and to l>c iui[)ns(uicd for any term not exceeding three months, and tiie I'ailitf of the Court, or any jieace otHcer, may in any such case take thi' oll'ender into custody (with or without warrant) and bring hini before such Court or Justice accordingly. 13-14 V. c. 53, s. 100|. Misconduct of Clerks. Bailiffs, &c. Misrniiihict 218. If any Bailiff or officer, actiujf under colour oi' andBaiiiirs. pi'eteiice (e) of process of the Court, is guilty of extortion ( /) or misconduct, or does not duly pay or account for all money levied or received by him by vii'tue of his office, the Judge, at any sitting of the Court, if a party aggrieved thinks lit to complain to him in writing, (r/) nuiy inquire into the mat- ter in a summary way, and for that purpose he may suin- mou and enforce the atten lance of all necessary parties and witnesses, and may make such order thereupon for tlie re- payment of any money extorted, or for the due payment of any money so levied or received, and for the payment of any such damages and costs to the parties aggrieved, as he thinks just ; and in default of i)ayment of the money so orilered to be paid by such Bailitl' or officer within the time in such onler specified for the payment thereof, the Judge may, by warrant under his hand and seal, cause sucii suni to be levied by distress and sale of the goods of the offiMulei'. id) See If"'). V. Sherlocl; L. R, 1 C. C. 20 ; Retf. v. Marmlcn, L. R. 1 C. C. 131 ; lloscoe's Crim. Ev. 8th Ed. 257 ; 1) U. C. L. J. 281> & 317. (»•) This is intended to cover a case where a Bailiff had not any process of the Court, 1)ut assnnud to act as if he had: see 7 U. C. L. J. 22!), 230 and 200. (/") Extortion is delined to be "any oppression under colour of riglit :' Wharton 292. ((/) The oomjjlaint nuist be made in writing ft?/ the parti/ agririeved (and not !)>' a stranger), and i: :;iuired into at some Court sittings. The Bailiff and his wit- nesses, if any, must have an opportunity of being present: 4 U. C. L.J. 132; Of<!loud V. Kelson, L. R. 5 H. L. (*36 ; Maxwell on Statutes, 325 ; section 31), iiute (o). il9, 220.] NEGLIGENCE OF BAILIFFS. 225 toLffther with the reasoiiable charges of such distress and suit', and in Irfaidt of such distress (or suniinarily in tlie tirst instance) may coniniit (h) the ofl'enrter to tlie Coninion (riiel of tlie County for any jxa-iod not exceeding thi-ee njonths. C. H. U. C. c. 19, s. 18'). Extortion. ^1{K If any Clerk, Bailiff or other officer exacts or Kxtortion. takes (i) any fee or reward other than the fees appointed ;iiul aliowed by law for or on account of anything done by virtue of his office, or on any account relative to the execu- tion of this Act, he shall, upon p)'oof thtueof before the Tourt, be forever incapable of being enij)loyed in a Divisi m Court in any office of profit or eniolunient, and shall al.so be liiilile in damages to the l)arty aggrieved. C. H. U. C. c. 19, s. 18<3. Negligence of Bailiffs. /S/SO. In case any Bailiff employed to levy an execution if Biiiiifls , , , , . . iit'xlt'i't tlii'ir Hgiunst goods anil chattels, by neglect, connivance or onus- .luty in Hion, loses the opportunity of so doing, then n[)ou conijdaint excmtiuu. of the party thereby aggrieved, and upon proof by the oath of a credible witness of the fact siUeged to tlie .satisfaction of the Court, the Judge shall order (A) the Bailifl' to pay such damages as it a])pears the plaintiff has sustained, not ixcceding the sum for which the execution issued, and the Dailiff shall be liable thereto ; and upon demand (/) made thereof and on his refusal to satisfy the same, })aynient shall be enforced by such means {)n.) as are provided for (/() See Paley on Convictions, cap. II. (2), sections I ti> 4 inclusive ; /iV'/. v. lihu-k, 43 U. C. R. 180. (i) The clause is a penal one, and must be construed strictly (Ma.xwell on Statutes, '239, H wy. ; 4 U. C. L. J. 13'2) ; and the olticer siiould have full oj)p(tr- tuuity of defending himself: Maxwell du Stat. 325; see Fisher's Digest, Ol'JI ; Hiul notes to section '218. [k) See notes to section 218. (/IThis would be a necessary preliminary of execution: DnrUhon and the Clkiinnaii of Q. S. Waterloo, 24 U. C. K. Gti ; Trustees of School Section Xo. 3 "///*'' Township of Caledon v. The Corporation of the Township of (.'aledon, 12 •'. 1'. 301; Bamfordw Cle.wes, L. K. 3 Q. B. 721); see also 10 U. C. L. J. •23<;. {in) That ia by execution, as pointed out by secticm 15(3, and, in dtfanlt of tlio money being made in that way, hy the same means otherwise as couhl he «i>rerted to against an ordinary debtor. 16 •>,; ■ .■ '-.:•;? t '4.'*-. ■■•. '^■' *'v- .1 * . ' " 4. :' *;*'■ •^^■•- .'4 J r ^i- ■ at ••vV'.^-v • -.vv • i\- \ '■ » ' r. ■ ' ■•.'"■■1 r .; \ a rf •,#■,■..■; :■ 226 ACTION AGAINST BAILIFFS. [ss. 221-223. '.'"'■ * '■' '' . .■-:■v^^■l:; •'■«-(■. - ■•■■ ;•■.■■•••■;":■•■? .1 .. -t .,«•.•. '. ' k ^' ft . v.; ;.■*( •. ---V' ■ ■H • .'i"' .»-'H-'*"X ,*! ,''■'-■ ■■ < ■ ii -.K'V . *-vi«.'v^;:r t ■* *''. S'l. Ai'tion fl],'aiiist, ll.'iilitraiMl Biii'c'tics lor |{.'iiliir In rrtiiiniriK' Kxt'i'iitioii tiriiy issue instjiiiliT, and if KailifV has re- Tiiovcd, his Hiiri.'tifs iimcrtlK'k'SH liable. Fines, how rnfiini'd l>y Divisiiin CiMlltS. enforcing judgnients vecoverod ia the Coiwt. C. B. U. (', c. lU, s. 147. *$%\, If any Bailiff iioglects to rotuni any e.\(;cuti(iii within thrco days after the return day thereof (u), or niakcs a false return then^t*}, the l)arty who sued out sufh wiii n)a3' maintain an action in any Couii; having cou»|ift»iit jurisdiction against such Bailiff and his sureties on tlic covenant entered into hy them, and shall recover tlicrciu the amount for which the {'xecution issued, with iutciesi thereon from the dati? of the judgment, or such less s\nn hm in the opinion of the Judge or jury (o) the plaintiff under the circuinstauces is justly entitled to i-eeover, C. S. LT. 0. c. 19, s. 148. *ii*/t*i. If ii judgMient is obtained in such suit iigaiiist tlic Bailiff and his sureties, execution shall immediately {}>) i.sisue tlujreou, and in Ciise of the departure or removal of such Bailiff from the limits of tlu^ County, the action may !«? commenced and cairied on against his sureties alone, or against any one or u»ore of them. (</) C. S. U. C. c. 19, s. 149. FINES, HOW ENFORCED, *X'i'^. Ill case a Division Court imposes any fine uiidoi- authority of this Act, the same nvay be enforced upon the («) In this case the time wouh! be reckoned tliua : if the last of tlte .'^0 (Iiiy.< (hiring which an execution was in force shovdd, for instanc^j, he the .'{Oth of Heptoinher, the return to it should be made not later tlian tlie 3rtl of tlic in xt month. Should the liaililfs sureties be changed Ijotween the time lie received the execution and wlien he made default in returning it, the sureties wheu default made would be those liable : Dicey on Parties to Action, '1'1\), i-t .scij. : 8 IJ. v. L. J. 3"). If a seizure should be made within the thirty days, tlie execution would be partly executed, and the Bailiff couhl go on and c(»ni[)K'te it after that tiime ; see notes to section lo)). Such a case could not l)e calli'd it ni'fjli'ct to return an execution within this section. If the Jiailiff neglucts to return'any process or execution in jn-ojier time, he forfeits his fees on it : sec section r»2, note (o). (o) This leaves it to the Judge or jury to a vard damages conmiensuratu to the loss: see Marrai' v. Clarkr, L. l\. 1 C. P 403. It would rest ujm)!! the ftaiUtf to free himself of the liability which the first alternative of this secti(yp has imposed on him. (p) No time should, nor pr(»bably cxndd, be given the defendants in such a case, without the plaintitf' s consent to it. (q) Two of the sureties could alone be sued together under this section, ii/ the event of the removal of . the liailiff from the County. Without the aiil u* the statute this could not be done : see uotea to section 53. "'^^^■b'-V I- ss. 224-220.] now penalty retoverable. 227 ',:.:;.;■' order of tho Judge, ir. like miinner as a jtidiiji'K'Jit (r) for any siiirx H(ljnd^(Hl therein, and vsliall be accoun+ed for {n) jus lieroiu pn.vided. C. S. U. (J. c. 11), s. 187. /S44. In all cases in wliicli by this Act any ponaltv or for- ?'"* en- " ' •' fdrct'd by fciture is made reooverabU; (/) before a Justice of the Peace, .'"sticrsOf siicli Justice may, with or without infonnatit)n (n) in writinj^, siiiiimon before him the party complained against, and llier(!upon hear and determine the matter of such complaint, and on jiroof of the offence convict the offender, (v) and udjudge him to pay the penalty or forfeiture incurred, and proceed to recover tiie same. C. S. U. C c. 19, s. 188. 'i'iiit In all cases where a conviction is had for any offence F"r"i (>r conviction. <'oinmitted against this Act, the form o' conviction (w) may be in the words or to the effect following, that is to say : — He it remcinhered, that on tliis day <>f in the year of (lur Lord , A. B. is convicted l>ef(trt' one (or two, (IS thr rate iiiay he) of Her Majesty^a Justices of the I'eace ft)r the County of (or before , a County Judge (if the County of ), acting under Tht Dh'inloH ('ourfs Ai-t, of having {notr, tkr ofriw) ; and 1, (or we) , tlK) Kjiid <lo adjudge the said to forfeit and ])ay fnr the same the sum of , or to be committed to the rommon dlaol of the (bounty of for the space of (liven under hand and seal, tlie day and year aforesaid. C. 8. U. 0. c. 19, s. 189. rROTEOTION (X) OF PERSONS ACTIN(J UNDER WARRANTS, ETC. *i*IO. No actimi shall be brought against the Bailiff of a penLsi'/and fr) See notes to sections 150, 170 and 171. {s) See section 52, note (o. ) All fines must be paid over to the County Crown Attorney luider section 'J34. (0 This lias reference to summary convictions : see section 46. ('/) There must, liowevir, be an information of one kind or the other to WiUTiint the proeeedings {('(ititlli'. v. Sci/inour, 1 Q. B. 889 ; Apph'ton v. LcppiT, 'Jt» ('. P. i;}8 ; Conmrfi v. Darlhuj, 23 \). C. R. 550 ; Stonesft v. Lake, 40 U. 0. R. ;WII; Crawford v. Jfcattie, 1^9 U. C. R. 1.3), unless the defendant waives it: Ihij. V. Sli'iw, 12 L. T. N. S. 470 ; Blake v. liccrh, 1 Ex. D. .320. (") The Justice must observe the same regularity of proceeding as wouhl be TLMjuired of him on the trial of any other offence punishable on summary con- viction. (if) If the conviction follows the form here given, it will bo sufficient : /« re. Wil/ion and the Quarter S^,ssions of Huron and Bruce, 23 U. C. 11. 301. (x) In the two following sections the Legislature has protected the Bailifl' •gaiuat actions for anything done in puraaance of a warrant good on the face of ..'•/; fl • > AT'. ' ■^V^>^■•' rK--.vi:":.': ■ l<' -r^', ^ ,■ .- .» - ■ . • ii - ■ * 'i' .'it' •■ ' ' ;< *•'.■ • '•iv • ■ /i'>*'''**'4i. "' ' 228 r.oi-y of \t.ll Mint tl) III' iii.mIi' llrCllIT iii:tiuu. PKOTECTION OK UAIMPFS. [h. 00 ■ Division Court, or ai^ainst any person (//) ncti'n<^ l»y lij. order and in liis aiil, for auylhint; done in oln-diencc? to aiiv warrant undei' the hand <)f the Clerk and H«'iil of the ( 'oiut initil a written demand, (c) si<^nod (a) l>y the i»ei"sou intend ing to bring tlio action, of the |X!ruHal, and a coi>y of such waiTant lia« by such i>ersou, liis Attorney or agent, Iwen «ervod upon (f>) or left at the residence (c) of suoh BailiU". and th(! perusal and co[»y have Ikjcu neglected or refused tur th(; space of six days after such demand, f^d) C, S. U. (V c. 19, s. i'J5. li.'iiiitr < ntitlcil tn '!t*t7> 1 n case, after such demand and conijjUance there vtniiit <iii with by slu'winji t' • warraTit to and |»ermittin<j: a cow pilKlllCtioll f " I n I. of wiiriiuit. thereof to be taken y the pen-son demanding the same, an action is brought against such Bailifl' or other person wlm acted in liis aid for any such caiise without making tlu; Clerk of the Court who signed or .sealed the warrant a det'cii- dant, then on producing or proving such warrant («) at the if, provided lie complies with the demand made upon him for a perusal and cojiv of it: see !l U. (,'. L. J. .SI 7. 318; i'/vVr v. Mcsscwin; 2 M. & I'. 1J8; I'mrson v. Hulhni It ill., \'tV. V. 7!>. (//) See Pidliji V. Darin, 10 ('. B. N. S. 402. The person nuist be attiiig under the authority of the Bailirt", ami in his aid: PoMlithiraite v. Uih!<iiii,'A Esp. 2'J(> ; aidrh' v. Dnreji, 4 Moore, 4G.5. (;) Tlie demand should he made out in duplicate and signed by the party liiiii- self: Tamnv. Ciuiiiiii/, 7 M. & <f. 8S, !>2. The jtarty by lii« conduct m.iy dis- pense with the j)erusal : Atkinn v. Killnj, 11 A. & JO. 777. It would he unncous- 8ary to nuike a demand where no action would lie against tlie ("lerk: Stiurh v. Clarke, 4 b. & Ad. U.S. If the; warrant commands the Bailiff to seize the jiodds of A., and he seizes those of l>., no demand is necessary {Par/on v. WiU'i'ini'. \^ FJ. & Aid. 3.'}0) ; or if he acts beyond his juriscbction : (ilaihnU v. lilnh, ! C;. M. & K. (>.S(); see also Sfnntrf. v. Coivaii et at., 40 U. C. li. 34»}. (a) His name could be signed by any person in his presence: Blailci v. Ijairrcncc, L. R. 9 Q. B. 374. As to the signatui'e to a notice of appeal against a voter, see CuiniiKj v. Toms, 7 M. & G. 'ill, 88. (h) See notes to section 72. {(•) See Clark v. ^^''^ oils, 2 Ex. .395; see notes to section 72. (rf) The demand I not specify any time, and if a different time is mentioned it does not vitiat' : Collinx v. Jioxi; 5 M. & \V. 194. It refers to actions nt trespass and ease < y {Li/ont v. Ooldiiii/, 3 C. & P. .')8G) ; and not to assum|mit. replevin, or the like : Bull. N. P. 24 ; Gay v. Miitthcit\% 4 B. & S. 42.^ (<') The i)roduction or proof of the warrant is necessary to free the Baililt from rosponsiliility : see Peppercorn v. /f of man, 9 M. & W. 018 ; Knlar v. Connmll. 8 IJ. C. K. 108. And the fact that it was at the time of the demand with tht gaoler is no answer ; Arnott v. Bradly, 23 C. P. 1. SS. 228-230.] DEFKN'f'E nV nAILlFFS AND OTIIKUS. 2'29 '■; ■• If Clerk ami Mnilitr .jiiiiit ili.CfiiiJaJits. llailiir I'lilitlril t(( Vili.ict nil )ir<«liiciiin warrant, aint Wllllt CCIHtS pl.iiiititls eiitiJUd to. trlftl, the jury ,slmll f:;iv(> their verdict for the <lef(ui(huit, not- witlistiiiidin;; any <lelect of jurisdiction or otli(>r irre<juiarity in or npn«ariug by tlu; warrant. C S. IT. (!. c. I'J, h. 1 '.)(}. /i/SA. If liii action is l)rouj»lit jointly against such ('lerk iiud liailitf, or tlie j)ei"sgn who acted in hi.s jii<l, then on |»r(X)f of the. wan-ant (/) th(! jary «hall find for tl»e Hailiir or the person wlio so acted, «otwithHtjinding «ucU defect or irregularity as afoniiajd ; anil if ii verdict in given again.st the Clerk, the jtlaiiititf shall nn^^over his costH against him, to be taxed l)y the jirojK'r offici-r in such nmnner as to inchuk^ the costs which the pbiintilf is liaMe to jusiy to thf defendant for whorm a verdict ha« been found. C S. U. C c. 19, s. 197. *i'i9, lu any s\ich action the defendant uuiy pload the ■general issue, (7) and give the speci.d matter iu evidence at .iny trial to be Lad thereou. C. S. U. C. c. 19, «. 198, <;ENEltAL PROVISIONS WITH RECJARl^ TO ACTIONS FOI'v ']'HlN<i.S DONE UNDER THIS ACT. !vJiO. No levy or tUsti-ews for any Kum of money to he, Owtn'MUKC til IjLMjl'fllUM) ISevied by virtue of this Act Hhall be deemed unlawful, or unlawful m 1 1-1 111 IM'I-HDIIS the persou making the same be deemed a traspasser, on uiaidu-,' it account of any defect or waiit of form (/<) in tlie infoi-mation, i>y r.4s,iu nj siniiinoiis, conviction, warrant, jii-ocept or other procee«lijig (jioCLdin^s. ri>latiug thereto, nor sJuill tlie jtei-son <li.st4"aining \w> deemed -1 trespiwser from the Ijeginuiug, (i) ou aeconut of any ^f„^ t,-, jk^ fircgularity afterw arils committed by him; but the i>erson ainiilv/'o,"' I)<if(iiil8ni may |ik-u I Kfiicra) issue. if) See the notes to tbe two next previous st-etious. Shuuld a judgment bt- i^ivou against tbe Clerk and fur the Bailiff, the Clerk would lie liable to juiy the jilaiiitil)' tbe Bailiff's costs against liim ; but they must he taxed in tbe maimer |Miiute(l out by tbe Sfiction. (';)See JJiJr'i v. Wkii, 11 C. B, 43t ; Rob. 4 J03. Digest, 'JTiKi ; Chittv « IVfcedents in P'eadiug, 301, .'J02 ; Har, C. L. l\ As:i, 730; Bid lea A Leake, title, "(ieneral in.'"e," 1 L. C, ti. 6. (/() The tendency of modern legidatiun is iu favour of preventing any fornml defect, defeating the ends of justice, or subjecting a person whi» sicts honestly to an action for damages : (Jraxefurdv. Ji(-(U/if, '.i'Jil. C. R. 13, and casts there 'jited. Tbis section licars a close resemblanee to sectitm 19 (»f the English Act of 1 1 (}ea. 2, cap. 19, in respect to au action for an irregular and illegal «li«tres» fiy rent. (/) As to what constitutes a trespass "from the beginning," see N^nsh v. /-'"•'IS L. R. 2 Q. B. r»9U; AiKjIchart v. Hathhr tt al., 27 C\ P. 1>7; Mavm- I'll Damages, 370, 3rd Ed, ; Roscou's N. P, 13th E<1. 870, • •, ■••. -f ■■''■^^f< \ '■'■■': ", ■ .*7 ' 4 1 -^•i.?;-^N'' -i*^'^ • •> »i ;u;' .• .■;..',l,.,■:•. •• *■■ „' .V. ; . , • ■/ .♦ 1 ... « ■ f, .1 _. _ .... ■■•:v^;^.-' li30 WHEN ACTIONS TO IlK (*0MMKN'CE:T>. [h. '2^1 l.liiiitntiiiiis ul'iictidlis fur tliiiij;s lllllll' lllllIlT tins Art- jifyi^iiovf'd l»y sucli invgularity iimy riKrovor fiiM safi.sfiu-tit>r'. for tli(> spooiiil tliiumK-n. {k} C. S. U. C. r. )!), 8. 11)2. ?Wi. Any iurtitm or |»roM('ciiti(tii iij^iiinst any |icrH(>u for anything doiui in piirsiiancf! of this Act (f) stiall Ik) coin inrncMMl within six montlis after (in) tlipfitct was coniniittcd, and shall Ik) laitl and tritil in tlieC'ounty where the fact wii» ooinunttcd, and notice in writinfj of Hnch actioit and of Jh^ eauH(» thereof (/<) shall Ix) j^ven to tlto defendant one month H') Spt'cial (luniiigoH must lit- proviMl, aiul if n(»t, tliu jJiiintifl' ckiiM not njciivtT oven noiiiiiiivl diiiniigt's, and tlu! vonlict or iuil^,'MK'nt slionld he for the iliifciiil- iiiit: Liinisv. Tin-I>fi,ii, li H. it N. 1 1(» ; h'lJi/rrs v. Pivrh i\ rs ( ?. H. 1 12 ; hc- iilHo /•;// V. Whitlnlcn-, L. 11. 7 tj. li. I'-'O ; Slui/f^w l{<d,IH; 4.H IJ. ('. H. I.V.. Special daniages inii.st he ulainu'd, otherwiae tiny lu-e not reoo\ evahle : Mayin: ou Damages, cap. 17. ( /) A Hail iff ia entitled to notice (^f action ii' he honestly intended to put tin; law in nuttion, and honestly lielieved he wa.s acting in pursuance of the statuti^ : lln-iintnii v. Snicscliitl, l.S ( '. H. N. .S. :V.(2 ; S,/i,ics v. Jii(l(j>; 1.. K. li Q. H. 7'J4 i h'fihrrfs V. Orrhnnl, 2 H. & ('. 7t)!>; L<'<-ti' v. /l,trf, L, H. li C. P. 3'J2. I5ut tlu. Itoiiii /A/'.-iof his act should, if retpiirud, !>« left to a jury : Xci// v, .VrMillini, :.'.') i;'. (!. 11. 4«ri; Stuna-t V. Vnwiai it id. 40 V. V. R. :{4(). S<.nie fiu;ts, th<;iv fore, must e.xi.st such as might give rise to iui honest Inilief, hut it i.s not necessary that the helief shouhl lie reasonahle : ('/ntiiilii-rliiiu v. Kiin/, L. ft. (l r. P. 4t4; Jo/liirr V. Wu/lits,i/ Loitil liiuitil, U U. !) ('. P. \-il: 'drWuti \. T<n//or, 2 C. P. U. 104; Smlili v. fl'i.st Ihrhj Loral liiuiM, '^ (". P. D. 4'2;{ ; A/(vV v. Moore, 4 U. ('. 15. L'(K> ; IJar,- v. Coot ct nl, 4 ('. P. 4(50 ; Dah- v. I'nul. (K*. P. 544; Andcrsov v. Unu-i' H al. 17 U. (.'. U. DG ; AW* v. Mrl.mi.An V. V. U. 88 & 87 ; Ptnrxoi, v. //»/<((« I'f nl. 15 C. P. 79; Joitlr v. '/'uy/o/', 7 Ia. 58. A BailiU" is entitled to notice of action even if indeniuitied [Loinih v. Ciiliiutin, 2it U. ('. 11. .S('»7) ; or if, having Jiai execution agaiiust the goods of ,1, takes the go(vds of //; liiir/iiiy v. I/itr'nj, ',i H. «& N. '271 ; Odi- v. ('oof, 4 ('. 1'. 4(iO. If a peison is not duly apjxiinteo a Hailitl, he is not entitled to notice of action: Tttrntiit v. liitkir, 14 •'. B. P.M). .A party who sets proceedings in motion is. not entitled to notice of action ; it is only intcmlcd to protect (itlicei>; who carry theni out : Palk \\ Kcntn'i/, 11 LI. t). K. 1150; Dolt<n/v. Whud if it iii. 8 IJ. C. L. J. 2:«). (in) llie day hoth of delivering the notice and that of brhiging the action nuist be excluded: Yoitnij v. /fiiji/oii, G M. iV W. 4J(. An action again.st tlm Bailiff' and his snix'ties for excessive seizure and exacting more than he was entitled to, /r7(/ notice of action was necessary : I'mrton v. Jiiitttiu f/i id. !")(' P. 79. {n) The notice of action must state the time and i>lace of trespass complaiiu'd of: }foori' V. (rnlli'H, .32 U. V. R, 'IXi; or,phant v. Ar.sV/V ,-/ ,d. 24 IJ. ('. I! 398. The notice nee<l not have the name, &c. , oi the phiintilV or his Attoiiii\ indorsed : McP/i(dier el aL v. Li'-sfir tt id. 23 U. C. 1! . 573. In au action agaiiL^^t a Bailiff for seizing goods exempt, it was held that it was not neceasary to endorse on the notice of action the njune and abode of the phiintifl' ( Mr Mart in v. ItiiHhuH et nl, 2 Apjx K. 14(U, iuid that ,a. ctwupliauce with this section, and not with chapter 73 of the Revised Statutes, is all that is retpiired: Il». : see ai.so tStrfk/ien.'i v. Sia/iltlon, 40 U. C'. 11. SiVi. Further, iis to notice of action, sec U. & J. '8 Digest, 34 ; Fisher's Digest, 43 ; Roscoe's N. P., 13th Kd., 1178; 10 IJ. C. L. J. 150-203. Reasonable certainty in the notice ia all that ia recpiircd: Lmtij/'arU v. Kirkpatrick et al. 2 App. R. 5.13. S!S. 232-234.] DKI'KNDANT MAY TKNDKIt AMKNDS. !31 ••ji •■ pit ;iil tilt' I (III ml iitsiic, die. ;il IciiHt (o) Ix'fon^ th(! coimiuMiccniciit of tlio action. C. S. r. i\ c. VJ, H. 11)3. 'lll'i. If tender of snrtk-iciit iinionds (;>) is niiulc hcfoie i>'f<tMiiiiit IIM.V tl'l'l''"' action l)iwi<;ht, or if the dc^fendunt, iiftia" ucti 'n l)roni,di(, ii'iiliiitiiini l»uys !i .snlBeieut suia of njoney into Court witli costs, the pliiiiitiir shall not recovei', mid in iiny such action the de- J'fiidiint Hiiay pleiid the f^enend issue, iind ;;jive any special iiiiitU'r in evidence nntler that plea. (J. S. U. ('. c. I!), .s. I!>4. And AV'rt t/ii' Ac/ to i»'oU'.ct JimfiriK dJ' tJu'. J*>i(u:e and iidnr ojfia'.rn from Vexatious Acfioiin. lur. Stat. c. 73. VX, h\ cas(^ any suit is l»roiii,'ht in ai\y of Jier Majesty's i'i:iiii'ii> i>"i •>: Siiperittr or other ('ourts of Record in respect of any ''"'*' ' M'nl •frievauces committed hy any Clerk, liailiff or oHicer of a "vir t.udol- tu lia\ ulltTt! M'l'ilirt not vauc isiou Court, (7) under cidour or pretence (r) of tl Div process of such Court, and the jury upon the trial find no ijiciiter damii<;(es for the jilaintiff than ten dolhii-s, the jilain- till sh;dl not have costs (h) vndess the Judije c<Mti(ies in <'ourt upon the back t)f the reiuM'd, that .h(^ tiction was fit to l:irs withuut. le ct'l-tiliralf. iK' Dvoua ht in su ch (Jourt of Kecovd. C. S. U. C. c. 1!), s. 116. tSee also Jiev. Stat. e. 50, 8. 351, rA^,:^:. t . • . ■ '■■ * •»• >t DISPOSAL OF FINKS. '{34. The moneys arising from (f) tiny jieualty, forfeiture Fmp.s. how « • 111'* 1- 1*^ • i) i'>l'ii.sf(l of. or tine imposed by thiw Act, not directed to be otherwLse ('/) Notice of .aetion was given 011 the '28tli <if April, iiiid the action was eom- inoneed on the 'J!>th of May following. Ifcli/ that one i:alen(lar month '.s injtico 'if acti(tn hail been given: Frci'iiiuii v. Head, 4 H. it S. 174. Tiie notice neeil not lie served by the party, hi» Attorney or agent in person, but may be served by :111V other literate jierson; b-r inatanee, tiie Attorney's clerk: Murijuit v. Lnir/i, KIM. & W. MS; Viimiixj v. Y'oww, 7 M. & (}. 2<». (//) See notes to .section 8(> and the live next succeeding sectifuis: 2 V. ('. L. J. '2'2; HuUeu fi. Leake, titles, " 'fender of Amends," and "•('ountv i'oiirts:" Chitty's Tract. 3r<l Kd. G!)2-7')7. (7) Thiii section only applies to "oilicers " of the (,'onrts : I'ulk v. Kiiiin'ij et itl., 11 i:. C, H. 350 ; JJul/<nj v. W/iuki/ H at. 8 U. V. L. J. -'39. [r) This must mean under such a state of facts as would give ri.se to si nnsDiKihlf pretence that the act done was under colour of process : see Vhimlierlnln v. Kim,!, L. 11. 6 V.. i\ 474 ; NeUl v. McMillan, 2") L. C. R. 48r) ; atrmirt v. Cowan vt al, 40 U. C. 11. 340. (n) See Rev. Stat. cap. .TO, s. 34"), et aeq., and Har. 0. L. P. Act, 42(), and fiiljdwing pages. It is to be observed that this section only applies to action.-* )>rouglit in (JouHs of Jtecord : see notes to sectiuu 7. (f) See sections 97, 116, 119 ami 217. ,'<' '.'■■•'■■•A t, -4^, iV , • * .%••*■(■':■ ', i • :•'•■ • ; ''•' • -:'■.' ' 232 DISPMSAI, OF MOXKYS VAII) INTO COURT. [sS. 23r)-L!.i7. aj)|»li<'(l, sliiill 1)0 i».ii<l to tlio (Jlcrk of tlie Court whicli ii,,- |^o.s(^(l tlu^ saiiio, iUul sluill he jHiid l»y liini to tin; Cuniitv Crown Attorney ot' tlie County to bo by him paid uvci t.. tb(; Provincial '•'■ oastiror, and sliall form part of the Cuti solidatfd Kevenue Fund. C. H. U. C. c. ID, s. lliO. . ^;;''i ...,■*. ^ ■ ■' •• ■ •'"3. 'it-'- " . ;' »•*■•• I*-.;. ■ « J". ' . ' ^ * '1 * • . fc V - • • '-'JV^^'^' ^%W \. "■■'lyr'-... J" * ,■ ' I'lii'IniiiMMl IIIOIII'VS to lie pillll (iVf tc I'liiiiity Crow II Attorncv. rliiiins of JIITSOIIS iliiilcr clis:il)ility not to 1)1' |ii(\iiiilii'tH\. DISPOSAL OF MOiXKVS I'M!) INTO C'OUUT. '!tH^. All sums of monoy wliieli 1 avo boon paid intn < 'mu i U) tlio us(^ of any suitor tlioroof, and wliicli liavo n* "im i| UTicliiinuMl foi- (Jio poriod of si.x yotirs after the siime wtiv («iid into (VMirfc oi- to the oHiei4"s thenMnf, and all suuts ot money wlien this Aot takes (iffiHjt or afterwards in the liaiidsi of the Clei'k or Ji'iiliff, iwiid into Court, or to the ottieeis tlniv of, to the use of any suitor, shall, if unelainied for the |>erioi| of si.v yeai-H (it) after the same wore so paid, foi-iu purt of tin Consolidattnl Reveuuo Fund, and be ])aid ov(;r by the Cli ik or oHiet-r holding the same to the <?ouiity Crown Attointv of his ( 'ounty, to lie by him pai<l over to the 'ri-easiucr nt" th(^ Pmx iiiee. and no person shtdl !»<» entitltxl t<.) elaiiii ;iiiy .Sinn whieh ha.s remained unelain»ed for six yeaa's. C. S. I '. ( '. e. ID, H. 45. '".•SU. No time (huinj;- whieh the [K^rson entith»d todniih sueh sum was an inftint or of iinsomid nund, or out of th' Pi-oviiioe, (r) shall be tiik^-i; into acxjouut in estimating th.- six yea-s. C. S. U. C. c. 1"J, s. Ki. <;kni:uai. itru:s and oiiokiw. lioj.nlor ':iin[. Theoxisting lioard of Countv Jud-xes with authniitv J Hilars to - V r> tiaiii) nii.s to miik<i Uules i-elatinjf to DiviKiou ("ourts shidl eoutiniif until supei*ieded or re\oked by the Lieut-Miant-Covenior ; fUulall livdes and Foriwhere' >foi'e made relating to hivision Courts !iud in foree when tins Act takes effeet shall, so I'li as applicable, remain in for«<o until oth.erwiso ordercMl uiidi'! tho pi-ovisions of tliia Act C. S. U. C. o. lU, ss. 1, Gl', 7<i (m) 8ee 8ec)ti.«i 43. ('■) Tlio tiino would cease ti. run wiiile any of theso ilisabilitii.'s coiitiiiH<,«l, mi'l commeaoe agaiu when rcujov.'d; coutiast /'< (o/y v, /iri'-'\ Ih C. U. N. ?<. ;V.';<. ';; ss. 238-240.] JUDOEfl MAY rUAME Ill'LES. 'illH. Tlio TjicMitoniiiitrJovoninr may from time to tirno :\|i|ioint iiiul autlioi'ize five of the County .Tinli,'os, who siiall 1)«' styli'tl "'riic Hoard of ('oiiiitv Jiuli^t's," to frame (UmiciiiI Kiilt'.s and Koriiis ooiiceruiui; the practire and procfcdiiij^s of tlie Division Courts, and tin; execution of the process of such Ciau'ts, with power also to frame Huh-s and ()r<lers in rela- (o the provisions of this Act, or of anv futuio Act :;;:5 Til.' I.iiiiti'n.int- CiiiMTIlor lll:iy Jipii. Ml li\r •oiiuiy ■ lllll^l'K til tiaiijc I'uU'.s, \i' !liil\ rispectiui; sucii Courts, as to wliicli <h)iil)ts have aiisen or in iiv ari;-n\ or as to wlii<'h tliere have heen or i nay oe con- tliitiiii,' decisions in any of sudi Coui'ts. C. S. U. C. c. 19, :\-2 V c. :\, ss. 21 tt 22 ; 27-H V. c. 27, •S. 2. The Li(!utonant-(Joveruor may appoint any retired ('(ptmtv Judw to bo oiio of tho menduns of the said l>oard. I'.rlir.ll .lii'l;; rii.iy l>Cil|lll"lllIl il 4<i V 13. .'V The said Board may also from tinn^ to time make Rules for the ^uidan(!e of Clerks and liailiti's, and in relation to tlie duties anil services to he peifurmeil. an<l to the fees to he received hy them ; an<! may also sul>stitut<! <itlier fees in lieu of fees payahle to ( Merks and Hailitfs under any l{ule, Order or Statute. 32 V. c. 23, s. 22 ; 37 V. c. 7, s. !M. 4. The said Hoiird may fr.>m time to time altei' oi- amend aiiV Kules oi- ( )rders made for the I division ( 'oiirts, and may fir any Division Court Division, endiracin;; a City or |)ait lit" a Citv, estahlish a lower tari If of fees from that estaiilisii- KmIis rcs|iiMtiii;; <'liiks .iikI li.iiliMs. Anii'iiiliiiriit lit nili's. t'll for Countv l)ivision Courts r-8 v^ e. 3 : 32 V^ 23. ss. 21 tt 22 : 40 V. c. 7, Sc/>.,'f. V (72). •> 111, The Hoai'd of County .lud^c.-^ or anv threi> of th em. ■ili.ill. under their hands M'tifv to tli(- Chief dustice id' tli* (iiiirt of t^ueen's Heiicli all Wules and lAiriiis made after this .Vet takes etl'ect, and the said Chief .1 ustice shall sulmiit the ^illllle to the .ludi,'es of the Superior ( "ourts of I.aw. or to any Hn.tr-I ».. 1 iptilv iiilin I., til." CliUf .)ii>tiiT lit tin i). n t'l lii-laiillii'l'i'M- till? .Iliiii;i s. luur o f tl leni. <". S. U. C. c. 1!), .s. (i4. ,;,;^-V>'-)! ■lif:^:: j; '{40. The J i!dg;;H of the Superior Courts of Law (of whom the said Chief Justice, or the (Jhicff .Justice of the Court of ('iiiiiiuon Pleas, shall be; one) iniiy approve ot, disallow, or ajiieiul any Kucli llules or Forms. C. S. U. C c I'J, s. 06. Smli riili> til III' ll|i|M<lVl'll I'l by tilt' .luil^i'c ; , • » • ■ M'" 'S'llN". •J34 VnAf'TU'R OF SUPKRIOR COURTS TO RE FOLLOWED, [ss. 241-21t. Ami lmv(! f.>ric .if 11 kt:i|llt>-. 1i4t. The Rules iind Foi'ins so a|)f)rovo(l of slmll liavo tin- siimt' forod itiid fH'cct (»') iis if they Imd hvAn\ inudo lunl inch ded in this Act. ('. S. LJ. C. c. I'J, s. (U). I lie .IikIuih '-J-I'i. 'I'Ikv .Iiidi^'cs who iiiiikc iinv Hulcs and Forms .ip til tiansmit ... ... .•n|ii.s t.ithc piMxcd of us ;ifore.said shall forward copies thereof to the 1,1. li..V.M-- ' . 1 1 r • . imr. *c. Liriitcii:iiit(io\ ci'iior, aiid the Lieutenant-(»ovcriior slmll lay the same liefoic tlm liCgislative Asseiuhly. (J. S. IJ. ('. c. 1!>, s. (h. I'Lvjii'liMrs of IniivjiiitUVir. !!i4>{. Ihe Mcutonaiit-(Jovornor may, hy warrant, dinct the Provincial Treasurer to |iay, out of tht; I'onsoliil • il Ilevenue Fund, tin; contingent expenses connected wi' iiit- fruiuing, a|i|ii-oval and printing of such Rules. ('. S. I'.C. c. l!i. s. (iS. j'nicti'c .if •■i44. lu anv caso not c.\|)resslv itrovided for hv this Art. tllf Sll|icliii|- . . • 1.1 ('.Hills In III' or liy existing Ilules. or Ity K»d(s made under this Act, tlic luiiiiiviiiiil County dmlgfs may. (.<■) in their disrretioi>., a.dopt and apply the general prineijiles of piactice (//) in the Superior Coiiii of Common iiaw to actions and proceedings in tho DivL^ion Courts. C. S. V. C. c. 1!), .s. (lit. ((/•) The Hull's 1.1V0 (iiily tliis elFi'i-t wlicn iiiJuU! Kfrirtfi/ u'lffilii the |iii\\ri delcj.'.itei! til "till' li iiinl nf ( 'i unity •liiil),'i'.'<." luitler tlie 'J."t>Stli .sectimi : .Maxuill nil Ntatute.s, 'J(i.') ; /fri'iiiiiiniii/ v. hrininiKnid, L. \\. 'JCli. M'J ; W-tln rli: Id \. Sil'oni, L. IJ. t <". P. r>7l ; Ml»nir,i-llni'i;il v. Sillnn, '1 H. & C 1()'-M, Am. Hil As to tlu! p()\V(!r lit' tllf ('(iiirt iif <iciieriil Scssiniis tn Jiiuke nih's, pruviiliiii; how and wlieii appcilH .sliall In- luanl. stie A'm/. v. I'mvlill, I.. 11. Hi). 15. 4i)l ; /iV., V. St<i!r.,rilsl,:n. 4 A. it. K. Sl'i. ti.ueriilly, soc //•ill v. //;//. '2 K. & A. ji. ."(TT ; /)' /.iiiciiln /•jlii/'mii, 'J App. Ii. .'{,'{1), 1.7 SI If., /iir Muss, ( '. .1. A. (.i:) It i.s sulmiitteil tl.at tin- wunls lu'i'i- ii;u!(l 'iro to lie read a.s iiidiciitiiij; a lUiictiee tci he oliservi'il liy the .ludgo wheiu'vei the einiuiistiiiici'S ef a ca.Hi rt'ipiire it: }/iiri/i)iiiiiill v. I'litirsoii, II ( '. H. 1'»n ; ."'iril't v. ./iiium, (> V. ('. I.. .1. (iM ; Alliiiini if hj: v. KiiixiI, ;> I'. 11. 110; A' r/. v. TUIn ('ininiiixsiii:iii:i, 14 (,t, H. 474; Miixweil nil Statutes, '1V^\ Tlir Sii/xi-risurs v. Ciiifnl >'«('•-. 4 Wallace, 4U\. ill) The .mthor rcfraiim from otVering any (>i»ininn on the inennin^ of tin laii^iiaye liiTc eiiiplo\-etl, furtJHT tliaii as expresscil in the fnrej^'oiny notes, 'i must lie lelt tn future (h'l'isimi.H tn (leteriniiie what priiieiplcs of piaetiee in tlif Siiperinr < 'iiiirts e.'in lie mvukeil liy a .liiiltti in a Divisinii ( 'mir.. ease. Tli'' ilanuernf ;ttti'niptin^ to lay dnwii any i;eiu'ial nilc is exeinplitieil hy the lasr "i hi rr WiUiiHi V. /'jlli'ill, refi'ireil to at paye I Kill nf I!. iV .1 's Digest, in ulnrli it was /((/(/ that the elair-icH of the .'Vdiiiiiiisti.itinn of Justice .Act, authnii/in,!; th'' exaiuiiiatinii of defendants before juilgiiifiit, had no application to l)ivisi"U Courts, COVKNANT «Y CMOlUv OK liAILIFF. 2;ir) SCUKDULE. (SWfinn .'7. ) COVF.NANT JtY CI.KIIK Ol! ItAII.tFK. Kniiw all iin'ii l)j thesi; [ni^sonts, thai, wi;, .1. H., Clerk (or Bailifl', ax thr ri:.<r iJivision ('unit, in tlu' ('(Uiiity (or iJniti'd , S. S.. ..t (I'Js(/itiir), ami I*. M., of , ((tinllriildU) •ii'ii/ l)<) (if the Ctiiiiitii's) of in tlu!sai(l ("oiu ty of III the saiil <'ou ity of li'i liiTclty jointly and sovcrally for ourselves, and for t;aeh of our heirs, ii\i(\itors and adniinistrator.s, tuvi'nant and ]^roMli^^l• that J. li., ( "lerk Im- lliilill) of the saiil Division ( 'ourt siiall duly pay ovei- to sucli persun oi- persons iiititleil to tile same, all siie'i moneys as he sliail reoeive iiy virtue of the said (itliii: of Clerk I"/- Uaililf), and shall and will well and faithfully do ami jMr- iiinii the duties impostd upon him as such Clerk [ur Mailill) hy law, and shall ii.it niisc (tnduet himself in tho saitl oHIch' to the dama>;e of any pei'son lieinj; a |i,irty in any le<,'al proceediuij; : nevertheless, it is herehy declared tliat no Ltrciter sum diall lie reeuvei-ed undir tliis eovinant a^'aiust the several parlies iierelo than as follows, that is to sav : A>;ainst the said .1. I>. in tlu' whole, A^'aiunt the said S. S Agiiiiist the said I". M ilollar:*. dollars, — ihdlars. In witness whereof, wti have to tliose presi'iits st^t our hands and soals. thw day of , in the year of Our Lord ouu tlmusiind eight tiumlrt^d and "<ii,'!M'd, sealed and delivered, ill tbc prt'suncc of 0. S. U. C. c, H); Form A. ' v." '>•■*. 1'.: 1MU)VTNCE OF ONTAETO. ; *■..■,%'■ . • ". «*'. • •■; i- V • : ~ ~. ■ . i . f ' .A-i-*'-*' ?;'*» ^ • •. Tly the Division ('oiirts Art. it is cnactod that, tlie Governor mis ajipoint iind iiutliorizc! five ot" tiio Connty .Iu(l<,'<'s from tinio to tiiii>'. to franic (I 'utTiil H ilcs iind Konns conccM-iiiiiLf tlio itracticc jiiid |irn <'t',('<lin!,'s ot tilt' suid iMxisioii ('oiirts, iind the cxt'cution of tlic^ jirdccss of such Couvts, and witii power also to frauK,' rules and orders in relation to any of the |>i<ivisions of Llie said Act, or of any t'liiinr Act respectijifj sueli ('ourts. as t(> wliicli doultts have arisi'u or inav iirise, or as to wliieli there have oeen or may lu* eonflietin:,' deeisioiis in any of such ("o'lrts; that the CJounty .Jmlyes so anpointeil, or ;inv three of them, shall, under their hands, eertify to the Chief .fustirc »f rpjv'r Canada all inles and forms l>y them made, ami that tiir <'hief.lustiee hall sulimit the sanu' to the .)ud<(es of the Su|ieriiir <'ourts if Common l/aw, at Toronto, or to any four of tliem, and tli:ii the .huL'es of the Sii(ti'rio; C.)ui'ts (of whom the Chief . Justice, or the (Jhief Justice of the ("uurt of Common Pleas shall he oiir). mav ii|)])rove of, disallow, or aineml any sueh rides or forms, and that t!ic rules and forms so apiirovcd of shall have the same foree anil eti'tct il^ if they had lieen iiiaMc and included in the said Division Courts At i .Vnd whereas l»y the Act of the Lenjislatureof this Provinces |)ass<<l in the iJ'Jiid year of Her Majesty's reij^ii, intituled "An Act toamciiil the Acts res|iectinij Division Courts," it is enacted that the County Judifes so to lie iiiiiuiinted as aforesaid, shall he styled "The IJnanl of tJounty Judiies," and shall have authority from time to time, in addition to their |tresent jiowers, to make rides also for the ffuidaiKi' of ( 'lei'ks and P>ailill's, and in relation to the duties and set vices to Im' ])erfornu!d, and to the fees to he received hy tlu'm; and that the saiil Hoard nuy, from time to time, alter or amend any rules or ortlii> uiadt> for said Courts. Antl whereas the l.ieutenant-Ctovernor of this Province, in cm i cise of tlie i^jwer so j,'iven to him. on the L'4th day of March la^t. apptnnted .James HoWert (Jowan, Slephen .lames .Jones, David .folia Hughes, .raujes Daniell, and .James Smith, live; of tiie County .hidi:'s 1.; II V 1, 2.] GENERAL IlfLES. 237 1)!' tliis Province, to fnunc now ij;fMi('fiil nilos and forms concerning tlic practice and procccdiiiifs ofllit Division Courts and tlie execution lit' tlie process of such (-«)nrtH, and also to frame iit-w luies and orders in relation to the I)ivi'-:i(ni Courts Act, and any sul>«C(picnt Act or Acts respecti g such Coui'ts, us to whieii douhts ha\o ai-iscn or nniy loise, or lus to whicli there have Ik en or may l»e eontlicting decisions iij any of mk'Ij Courts, and also to make ruh's for the nuidanee of Clerks and Hailiffs, and in rehition to tlie duties and i-eivices to he |icrformed, and the fees to l»e receiv(^d liy them. Xow, in pursuance; of the powers vested in us. we, tin; said .lames .|{ol)ert (lowali, Stephen Jame . Jones, David John linyhes, .lanies haniell, and James Smith, have framed the followinjj rules, orders, Mild forms for use in the said Courts, and to he in foicp until other- wise orch'red us aforesaid, and we do certify the same to the Ilonor- nlile the Chief Justice of Upp«r Canada accordinj,dy. I'oKONTo, IbtJy. ^^:>;. .J:i r- t .1 lUTLES. .> i TIMK OF Ol'KliATION. I. The Tvules of Pi-actice ami tin; Forms now in use in the several |)ivisit)n Com-ts shall, on and from the s(>coiid day of August, A.D. |S(l"j, cease to ho used, and in lieu theieof, the followini^ shall, on jMid from such day, l)e the Rules, Ordeis and Forms in force and used in said Courts. IJut any a«'tion, process, ordei, jud^nnent, or inoceedinj,', [>ending, existing, or in force in any Division Court at tli;.t time, shall not he tln'rehy affected, hut shall continm? and remain, aiid no far as necessary, \u' proceeded with under these I'des and forms, if applicahl<'. or otherwise under the rules and forms liitht'rto in use, or as the Judge may direct. INTERPRETATION, !i, Tn construing these Rules and Forms, unles,^ otherwise' declared or imlicated by the context, the following words shall liave the several meanings hereby assigned them over and above their : ••■^<7V■^^;..^^u, 2:w r.ENKRAL RULES. [R. '1. sovenil ordiiiaiy inoanin^s, viz.: — (1st) The words " the Act " h1i;iII incan tlie Division (jcmrts Act (Consolidated Statntes of r|»|Mr Canada, cliaptcr 10); and tlio word.s "the Act of lN()!»" h1,,.,|| moan the 32nd Vic. Ciip. 2.'$, "An Act to amend the Acts icspcct- ini^ Division Courts;" (2) The \vord " })arty " shall mean a |iartv to a suit or procecdini,'; (3) Tlu^ word ''person" shall mean niiv person, whcthei- a ]iarty to a suit or ])roceedinj^ or not; (4) 'i'lii- words " pc'rson " or "party" shall include, and he uncUn'stood tn UMjin a hotly politic or coi'porate, as well as an individual ; ("t) The word " exetaitor " .shall he held to embrace and moan "of tlic last will and testament," and <'xtend to ])arti«s actin<( as such ot' their own wroni; ; (0) The word " atlministrator " shall he held in end)race and exjtross " of the goods and chattels, rights and credits. which wore, ii:c. ; " (7) Kvory word importing the singular mumiImi shall, where necossai-y, W' understood to mean several persons or things, as well as one per.son or thing ; (8) Kvery word import ing the masculin(^ gender shall, where neces.sary, he inuierstooil to mean a female as well as a male; (!J) The word " sworn," and tlif words " on oath," shall he understood to mean altirmed or on outli ritui race, or liy atlithivit or alKrmation; (10) The words " Hoinc Court " and "Home Division" shall mean respi^ctively the Court i,\nd Division from which process originally issued; (11) "^riie words "Foreign Court" and "Foreign Division" shall mean respectively th<' Court and Division into which process is issued from another Court; (12) The words ".ludge" and "Ch-ik" respectively shall he taken to extend and he a)))died to the Junior, Deputy, or Actiiij: Judge, or Deputy Clerk (as the case nuiy lie or re((uire); (IM) Tlir words " Plaiufitf" and "Defendant" respectivTly shall he mutually transp<»K»Hl, where nc< essary, for th(! proper appl'ration and coustriir tion of any of llusse Hules or tho Forms hei-cwith, .^r for giving efl'ei t thereto; (14) The word "County" siiall include any two or more Counties united for judicial pur}>oses; (IT)) The words "the chiiui ' shall iMoan tlie demand i>i *\n\ suhject nuitter for whii-h any suit <»r pntceeding is hrougitt or institutetl in a Division ('ourt; (Hi) The woril "priK-tss" shall mean any summons, writ or warrant issued uiider the seal of th«' Court, ov .Judge's summons or order; (17) In any form or pi-o<-ee(Ung, the words " I'nitetl CoutiMes" shall l)e introduced according tu law, aud uircuuistanceti rendering the siiine iiucessary. Fvs. 3, 4.] GENEHAL ttULES. 23!) ';; CLAIM AND I'AUTIClJLAnS. !tt Every claim (n) sltoiikl sljdw tlu; iianics in full, (h) and tlui )ii('H('iit or last known places of abotlo (r) of tlio parties, and ninst lie written in a legiljh^ manner, and delivered to the Clerk, at liis ntlice ; provided that if the plaintilf is tniac(]Uainted with tin,' defendant's christian nanu^, the defendant may he desciihed hy his surname, oi- hy his siirnaiiM! and tin; initials <jf his ehristian name, or liy such nanie as he is <i;enerally known hy ; and the deft-ndant may he so descril)ed in the proeess, and th«! same )iiay he taki-n to lie as valitl as if the true christian name and surname ha<l hern stateil therein; and all suhsecpient proceedings thereon may ho tak<'n in con- fnrinity with such desciiption; or, when the defendant's true' name is discovered, the proceedings may he anuMuled acconlingly, (</) on sueh terms as the Judgi; thinks (ic. 4. The claim shall, in every case admitting thei-eof shtnv the par- ticulars in (.letail ('•) ; and, in other cases, shall c(Uitaiu a statement of the partieulars of the claim, or th(> facts constituting the cause of action, in ordinary and concise language, and the aum or sums of ((/) Sets sectiens (i8 ami (>!) and notuH, and notes to rulo 80. {h) Tlio christifin and Kurnaiuo I'f the plaintitl, or of eacli of tlio plaintiffs, if more than one should he inserted in the siniuiions: Arch. I'ract. I'Jth Kd., 187 ; i\'<il/,-(r ,{• Co. v. /'itriiiis. 2 I). iV. \j. IKS'J. 'the aununons should, in general, Kct forth the true ehristian and surname of tlie defemlant in full. He may lie sued hy any name or names he may have a(!(iuired hy usa^'e or reputation, and tliis ajtplies l)otli to his ehristian and surname: Areh. Praet. [8tl ; \\'illi(iiii.< V. Hri/diit, r» M. it W. 447; /iroinir it iif v. Smlt/i, 1 P. It. ;U7 ; The <'nrp>>r- •ilir.ii itf till' Tiiiriishii) of lii-n rli'ii \. Jinrloir tf <il, IOC. P, 178: lltiiw Wdrtlun- liiirii (litlnihitiDitu) ~ <.). li. ">,">"); Prit'r v. Ilafwood, 3 Camp. 108; lioithwkk V. Rornisrroft, "> M. & W. .SI, (r) "A reasonahlo degree of certainty In the tleaoription of the dofeud<ant'H residence, &c., should he useil and will suilioe The insertion lit the supi>osed residence will sutlice ": Areh. Praet. 186, 187. A defendant <l"seril»ed as of " Clapham, in the County of Surrey," was held suthcicnt : I'liiihnh) v. Jitmulitr/i, 11 Jwr. 4.")."). A descriptiiin of either jilaintiH' or dcfumlant hy local numicipality and county would he sullieient: Sue Har. < '. I;. I*. Act, J). 'A and notes, 'i'hc omission of the place of ahode would Ik; an lirtgtdarity merely that couhl he waived: li'oss v, ikutikll, 7 < '. P>. 7()(), or amended under the general po.vers of am, udment. ill) See Rule 118: Wonbii v. Dale Pttlmt Slnl Cotii/xni!/, V. U. L>7») ; Fisher's Digest, 0882 ; Har. V. L. P. Act, 48 to 50, and Wl to .S*20 inclusive. [f] This slnmld he particularly ohscrved for, if not so shewn, the jjlaintiff Would |irohahly he cominlled to amend on terms, and in cases w here t!ie action is cninmenced hy spfi ial summons there could he no judgment hy default unless " the i)articulars of the plaiutitl's (dai- " -"asonaljlc iseitainty ««(y ■/'nil had heen served <»u the defendant; 8ect»v,». ,ji nor by default at tht- n^'^.vO -^ '-• I I . r ■ * ■ ■,..v, . '■ .■•I' ■ » .% , J '■' ■ ■ ' l.^v- ■i 4: V" . , '# ■■■*,- -^ *, ••'■ ■ I'll) (iKNKUAl, RULKS. »fy.•■!'^;,•., V ■ [Us. T) S. Ill iiu'V claiiiH'd ill rcspncfc tlicrtito: (tlm Forms 15 to 21 iiro fjisni liy Wiiy ofillustnitioii). IJiit in all casoH, tlu; Ju«l,t^r, in his (liscicticni. ami on sncli tca-iiis ns he tliinks fit, may adjoin-n tlio hearing lor a stateiiu'iit of partii'ulars or fiiitlicr particulars. ."i^ Wlit'ic a plaintift" sues a (Icfciidant, niider the pi'ovisions of tJn* .\('t 27 and 1*8 V'ic, Cap -'7 (_/'), tin; claim fdiall contain tin- follow- in;; statement: '•.And the plaintitt' enters thin .suit, and elaiins to have it tried and determined in this Court, iieeauso th(! |)lttce of sittinjf thereof is the nearest to the defenihint's rcsidenco." |», In all actions in Division (Jourts against otKcer.s and tlioir sure- ties (under the -0th (</) and subse(|nent sc'ctions of the Act) mi tin (itfieer's Sfciirlfi/ ('(irerunif, th(^ particulars of the claim shall he accoi'ding to the Form 18. The pi-oee.ss and suh.secpient proceedings to lie the same as in ordinary ca.ses. ■J, Whei'(! a party, having an unsatistit'd judgment, desires to pi-o eeed under the ItiOtli (//) and suliseipient sections of the Act, he shall enter with the Clerk a minute in writing according to the Form L'7. or to the lik(! eti'ect, which shall Ih; numhered in the order in whiili it shall he received; and, if he proceeds in a Division Court, other than this one in wjiich the judgment was entered, he shall, with the iiiinnte, deliver to tlu^ Clerk a transcript of the judgment; and theieiipon a summons (l<^orm 28) bearing the luimher of tht; miniitc shall issue. H. Where the excess is abandoiuHl, it must be done, in the lirsl instance, on the claim. (<) trial uiik's.s siu'h has hi'on (leiie : see aoctioii 82. As to piirticiilar.s on tlic jiccoimt stilted .see niillen i!t l^eiike, .Snl Kd. 44, ami title "Aecouiit stated: ' Nc Lai/ciirk V. I'lrkhx, 4 B. & S. 4{»7 ; Sparliiiq v. Sunnir, L'o IT. (". |{. -J.lit ; Towx ct a/ v. Si//.s, •_>!» U. C. R. 497 ; liurk- v. J/iirst tt ni, h. U. 1 (.'. I'. 'JUT (/■) Now section (J;{. ((f) Now section 27. (h) Now tiie '77th .section. ( I ) Tile .hiilge '.lis no power to aineiid iiarticulars of elaiiii so as to1)riiig the ease witliiii the jurisilietiou : see notes to setttion liKi. Tlie rule must have been orij^imdly framed to get over tin; ditlieulty occasioned hy the decision of I.^td" V. 11'///'/, 7 l"^x. lt)8. Tile excess must be aliamhmed iiy tiie piaintitl on Ills claim. He cannot wait until tiie hearing and then do it : In >••■ Macbinit tu„l /I'l/nii, (i I*. K. :<•_';<; Wiiii/rr V. Sihixi 14 (■/ (I I., 2 Ai^t. Kep. (ilO; Fisher's lliuest, 21.'J7. See, however, FUzxiinmom v . Mclntyn; 51*. K. ill); and In rr Stwidalv V. Wilsvii, 8 P. K. 5, Us. D-15.] fiENKKAf. r.IT.RS. 241 done, in the Hist riKHKSS. J), All tlrst process IssiumI uinli-i' tlio seal of the Court siiall lie ■>i!,'ii(Ml })y the (Jk'ik, tliitt'd tlio duy on which tlu) chiiui is ('ntciod, ( /) .mil ninnlHTwl to coiri'spontl with the claim on which it is.su<'s, and, with the exception of Wari'ants of Attachment, duly Htiim|M;d. (X) 10. rh(^ first [)rocesH (/) issued in a suit iindei- the seal ot the <'()urt shall for all purposes he held to \n; tlw commencement of the action. 11. The first process foe the recovery of a (hdit or moiioy denumd. {ill) or for a tort or other personal action, (n) may ho a summons and Cidl(!<l "Ordinary sununons" (Form 22). Vi, In actions for the recovery of a deht or money demand, (u) wlicro the particulars of the plaintiii'.s claim arc! <^iven with reason- alije certainty and detail (under tlu^ Act of ISO'J,) the tii-st process may l<e a summons, and called "S/ii;ct(d Snianions," and may l)e in the Form '2'.\ set forth in the Si-heduh;; and the Warnini,' No. I rhereiu sliall stand in lieu of the Form A in the Schedule in the last mentioned Act. IIS. Tn actions of Replevin, (/)) the tirst procPBS shall be a writ of llt'plevin and Summons, called "Summons in lleplevin " (Form Ul). 14. All alias or })luries (</) proce.ss shall be dated on the day on wliich it actually issues. 1.^. Where the [daintitV sues uiuler th(5 l.l'jnd section (r) of the Act, the proceiHling shall be by "Ordinary Summons," or "Special Sum- mons," but in addition to the notice or uotictss and warnings on the uiiifinal summons to appear there shall \n^ added tht^ following: The defendant is informed and cautioned that I, — — — K • ( j ) See notes to section 68. {k) See notes to section (5. (/) See sections (5 and '.Hi, and notes thereto. {in) See mites to section "0- (//) See sec. 54, subsection 1 and section (58. (o) See notes to section 7!>. (/>) See section 50 and notes, and the Replevin Act there copied (Rev Stat. 732.) (7) .Vn alias is the second writ, and a plurios writ is auy writ after the iLniucl : Wliarton 38 anil 587, 7 U. C. 1^. .1. 178. (/•) Now the 171st section. See the notes ti> that section. IG j: ii. ■/■■'■■ 1-. , ■?.■•. ' ■:.<■.■-,•..■ ■'.''. !li-.'M-^-..i.' . ' • ■ •r' .i?^^ ,< .V. V. •■ .•• . V ,. :. "1 ■. i .. ' ■■. " -' '•■ ■^■■r-r-^'-lfr ■ : rf' • ■ :.i '.v.-- ' i - '•:'-'}^:<.-:. ■t^r- .» ■ 242 GENERAL HULKS. [Us. 10 I'J, (insert the nnnic of the heneficinl p/ainttjf) only lias power to ilis- c'liiirg*^ this suit, the sul)ject msitter tliereof luiving l>eeu seized iiiidcr execution." 10. Lciive to issno n suinnions or process under the T'Jnd seetion (.s') of tlie Act iiiiiy be "(nuited t\t nny tiiiK! l)y the Judge, on pi'o(hic tiou of an iidichivit (Forms IS or 0), or upon oath to the sanu; enirt, at any sittings of the (Jouit in whieli tlie action is to ho brought: and where a summons issues by leave of tlie Judge, no wntten ordci- for such l(!ave shall bo necessary, but it shall l»e sutlicient to insi'il in the sununons " Issued by leave of th<! Judge." IT. Where there are more defendants than one, and they resiilf in ditferent counties, concurrent suiuinoiises (t) may issu(! foi- the service of tho d(;fendants residing out of the County in which the acti(m is brought, but the costs only of the summons actually scu'vcd shall be allowed on taxation, unless the Jiulge directs otherwise; and such concuri'ent summons shall correspond with, tho original, ami be marked in the margin "concurrent summons." SPECIAL SUMMONS. 18. Eveiy " Special iSiiinmons " shall be returnable on the eleventh day after (») the day of service thereof upon the defendant, in case the d(!fendant, or onti of the defendants, resides in the County in which the action is brought ; in case none of tlu^ defendants reside in the County, but one of them resides in an adjoining County, the Special Summons shall be retui-nable on the sixteenth day after the day of such service ; and in case none of the defendants reside in the County within which the action is brought, nor in an adjoining County, the Special Summons shall be rettxrnable on the twenty-fii-st day after the day of such service upon the defendants, 10, III case a "Special Summons" shall not be served in time to make the notice of the sittings of the Court at the foot of " Warning No. 2" available for the information of the defendant, the Bailifl shi.ll return the same forthwith (y) to the Clerk who issued the suni- [h) Now the 04th section. (t) In iUialogy, see Rev. Stat. cap. 50, section 26, et seq. ; Har. C. L. P. Act 25. (u) The day of service is excluded under this rule: Young v. H'ujijon, t> M. & VV. 49, and Rule 18. (v) See notes to section 18. •:^'!^?.^';^:\: ••"ti Rs. 20-23.] GENERAL IIT'LES. \•^ jnnns, and tlio ('If rk sliiill a(h\ n now notice of the proper days of the week and niontli on wlik-li the next two sittings of tlie Couit are u he lieM, aiul shall return or transmit the same to the Bailiff for service. 550. A defendant giving notice of set-off or otlier Statutory (lefenco, ( o) or paying money into ('ourt, (.r) or jileading :i tender, sliall be deen\cd to have sniliciently given the Clerk notice of dis- |mting the plaintiff's claim within the meaning of the Act of 18(59. (y) 21. When the def»'n<lant's notice of defence disputes the claim in piirt only, (c) the Clerk shall, in the manner provided for in Huh' 88, licrehy notify the plaintiff thereof, and r«'(|uire him forthwith to s;iy in writing, if 1h^ is willing to take judgiuent for such part; and if the plaintiff fails to notify the Chn-k that he is content to take liidgment for the part admitted, it will ha assumed that ho seeks to recover the whole claim, and in such case the i)laintiff must proceed to trial ns in ordinary ca.ses. *i*i. In case there are several defendants, (a) and all of tliem have not been served with a special summons, then, unless the plaintiff is . ontent to take judgment against those .stn'ved only, judgment cannot 1)0 entered on his behalf under the sai<l Act, but the |)Iaintiff will liiive to ]>rocee(l to a hearing before the Judge as in ordinary ca.ses. *ilt. In case the notice required by the second section (b) of the Act of 18()9 has not been given by a solo defendant, or by one or laore of several defendants (and the plaintiff is willing to take judg- ment against those only), and leave to dispute the jdaintiff's claim lias not been given by the Judge, the Clei'k, after receiving a return of the " special summons," with the })roper affidavit of service, may, on the twelfth day after the service of the summons, where the return day is the elev^enth day after service, and on the seventeenth and twenty -second days respectively, where the sixteenth and twenty-firat (in) See notes to sections 92 and 136. {jc) See notes to sections 86 and 89 as to tender and i)aymeut into Court. A litter l)y the defendant's Solicitor to the plaintiffs Solicitor iKjfore suit, offer- ing to pay the plaintiff's demand, is not a tender : Garj'ortli v. Cairtui, 9 L. J. N. S. 212. (//) See sections 79 and 80, and notes. (:) See section 79. («) See notes to section 77. {h) See section 79, and notes. ' ■ ; j: ^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I '- '^ 11 2.0 M 2.2 !!: i;£ 1.8 , 1.25 1.4 16 === i — = • -^ 6" ► Va ^ /a /a O-' % > /^ "'^ '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 S: s^ ,\ ;v A \ V ^^J c^ i/.A .» *■ 4 '.'■>:•■ V-. vA-v--«'- '';■■■ ■ ...-j«-^ *,>■■'*•■ ■• .•t •.•^, ■■■..-..-..•,■. , ,;■'.,;;■ ''*-;^;^.vt-v' • ),'■ ■"'■' j» ■•' ■"'-• 'i\ ..'..■•■« i^-v Si ; ..,,:• ;.••!*. j'-^/:- r' ■ ..,■•.■,''■''■;•#..'•■■'.. ,■ .,.,♦< ,..■.,>>,.•• ■ •r.- .'■--■v..''" ■»- 1" ■■■-"' ■■». •,■.■•■••/.%■,:• ■ , •<< •■■,. . ••.:.^^''' ■ ■ .* ri.v-; •»; ^ "■ ■ ■ *"l ' .V' '. ■ - t 244 GENERAL RULES, [R.S. 24-1 ^1' iii'V;- (lays after the day of service are the return days of such summons, or at any time within one montli after such I'eturn day, enter judgment against the defei\dant or defendants so served as aforesaid, for tlie claim, or so much tliereof as has not been disputed, if the ])laintirt is content with judgment for sucli part. If the [)laintiflr is not con- tent to take judgment for the part not disputed, he must proceed td trial, as \n orilinary cases, and the part of such claim not disputed shall be considered as admitted and confessed by the defendant or defendants. f>4. In case a sole defendant, or some one or more of se\-ei'al defendants served with a " special summons," has or have given the necessary notice of defence recpiired by the Statute, ami the plaintilV is not vviDiug to take judgment against those defendants only who have ma'' '^<;fault, the action shall thereafter be proccoded with as in ordinary casen, and the default of those defendants (if any there 1)e) who ha'.' i' t given the notice at the time limited (uidess the Judge gives' t e.i leave to put in such notice afterwards) shall be considered, i'.o against them, a confession of the plaintiff's claim. 34». In actions commenced by special summons where there are more defendants than one, and some of them have been served Mitli process, but have not given any notice disputing the plaintilfs claim. and oi^Ler or others of them have not been served, but have given a confession of the debt, the Clerk shall produce or transmit the con- fession duly pi'oved to the Judge for his order, and when the Judge's order shall be procured, the Clerk may enter judgment therein within one month after the return of the summons against all the defend- ants for the amount claimed in the particulars, or so much thereof as has not been disputed (if the plaintitt' is content with judgment for p.art), provided that the defendants who have confessed shall have acknowledged the same amount by their confession, and such judgment may be in the Form 53; and it shall not be in the power of the plaintiff to elect either to proceed on the confession against some of the defendants or to obtain final judgment against those defend- ants who have not confessed, but the judgment shall be entered against all the defendants jointly. *ZK. In any action brought against two or more defendants by " Special Sunnnons," and all such defendants are not served on the T'WP^WI^WTI Es. 28-30.] GENERAL Rl'LES. 245 Hiime (lay, the Clerk, if no notice of defence is entered by sucli de- fendant or defendants as are first served, may, on the day he could have entered final judginciit against such defendants, if they liad been all served, enter a miiuite in the Procedure Book, stating the tact of service, and of no defence, and the (,'lerk maj' so proceed against each defendant as the tinie falls due, until the last Is served, when, if he does not put in the necessary notice of .'efence in the pi-oj)er time, tinal judgment may be signed against all ; but if it is not desired (c) to enter judgment against one of tlio several defendants till all have been served, no such minute need be made. ?J8. If one or more, not being ,ill of such defendants, pnt in the necessary notice, the action shall proceed as in other cases, the Clerk (unless the plaintiff wishes to abandon those who defend) not signing judgment against those who have been minuted, as afoi-(?said, nntil the action against all is determined, so as to have but one taxation of vosts. When the case is tried, if a judgment be given for the plaintifl* .'igainst those defendants who dispute the claim, the Clerk may entei- final judgment against fdl the defendants ; if at such trial a judgment be given for those defendants, or an}' of them that dis))ute the phiin- tiff's claim, the plaiiitiff, if not intending to make a motion to have the said judgment reversed or altered, must oV)tain leave to amend his proceedings by striking out the names cf those defendants in whose favour judgmeiit at the trial Wiis given, aud final judgment may be then '"utered agaijist those who have been minuted as above, and against any defendant against whom judgi'icat at such trial wiis given. ^1), Any defendant who h'lS l>een minuted, as aforesaid, may be ;ot in to defend on suiticicm- grounds {(/) shown to the; Judge as in any ordinary case of judgment entered in default of tiie necessary notice. liO, In case the defemliint has given a confession or acknowledg- ment of debt, and lias not put in the notice disputing the j»laintifl''s claim, the plaintifi" nmy eitliei- ])roceed on the confession, (e) jts in oidinary cases, or may obtain final judgment under the Act of 18GU, us he may elect. TJie costs and disbursements of transnutting such (r) That is by the plaintilT. He should notify the Clerk of his determination .11 that respect. (i!) See notes to section 70, sub-section 3. (' ) Sec sectioM 152, and notes and Rule 20. i»'^?<:- .j^ V I ..*,■ t ...■; !4-4 r J-». ' ■;.'•■. •• \i •".■■•■.»■«•■ ■•- ; -i; '<; -.V'-J, . . .'.f * T ;,•...•'■, • .•',; • "■ <' ^ ^ ■■ 'I ■■ ■ ' ■*- "if- .■"*-*,' "A ' » 1 . * •■■" /« • -'.. * ^- '■■<: ■: .... I, ■-/ ; .; ■■.. . ■ f-k.y.' '; ■• --i'fc''." » « • . jT •'•■■'.-''- rV «0 :'•:.- .j %'.'■■. •.'-y(j,^\ . # •i '. A. HU ,. ,- ■■ • ■ ■ ■. ' >■■■ '.V- *. ■ . *..■ .n' 4■'i■.^,!■' ■,.lr. ■•.■>.■ 'i;;.';.' tJ-.:,^;./^.« ■ ■ .« 246 GENERAL RULES. [Rs. 31-35 confession to the Judge to obtain the order for entering of judgment, shall be costs in the cause. 31. In c.i.se judgment be not entered by default, on a special sum- mons, within one month after the return of the summons, the Clerk cannot enter it afterwards ; but the suit sliall not the'reby abate or Ijt considei'ed as discontinued, but the plaintiff may continue and revivr the siune at his own expense by suing out an alias summons in the ordinary form of summons to appear (Form 22), with the same pai'ticulai-s attached or endorsed as were attached to or endoi-sed on the " Sj^ecial Summons," which sliall be duly served n\xm the defend ant in the usual way, and the suit may then jn-oceed as in ordiiiaiy cases. 3^. The judgment shall be entered by the Clerk in the Procednrr Book, according to the form to these rules appended (No. 52), in lieu of the ''Form B" in the Schedule to the Act of 1869. 33. The execution to be issued on a judgment under the seconfi section (/) of the said Act shall be in the forni set forth in tho schedule of foi'ms to these Rules, No. 77. 34. Where, under the provisions of sec. IB (g) of the Act of 18G9. a writ of execution is i-equired to he executed out of the Division, tlif v/rit may be directed by name of office to the Bailiff of any of the Division Coiirts in the same County, but caimot he issued to the Bailiff in another County, {h) The returns required to be toiide untlei Sees. 18 and 19 [noio ss. 74 and 75], must be made to the Clerk by whom the pi"oces& or document has been issued. ATTACHMENTS. 35. The Form of affidavit for an Attachment (i) .shall l>e accorci ing to the Form 11. In all cases whei^e an AtUichment shall issut; (whether the suit be conmienced by attachment in the ffi-st instaiKV- or not), and the summons against the defendant shall not be person- ally served, (j) the hearing or trial slxall not take place until a montli after the seizure under the Attachment. (/) Now 7t)th section. {ij) See section 74. (/i) There must bo a transcript under section 161 . (j) See section 190. ( j) See sectiona (i'2 and 72, and notes. r.s. 36-38.] GENERAL RULES. 2V, liil. Wlien several persons sue out warrants of attachment aj:jainst •in absconding, i-enioving or concealed debtor, each one of sutli attaching creditors may enter a defence, call and examine, and cross- examine witnesses as to any debt or claim proved or attempted to be proved against the debtor, in the same way and to the same extent (k) as the debtor himself might do were he persoimlly to ap[)ear and defend the suit on any ground whatever. INTERPLEADER. IJT. When any claim shall be made to, (I) or in respect to, any -^oods or chattels, property, or security, taken in execntion, (m) or attached (n) under the process of a Division Conrt, or tlie proceeds or value thereof, (o) by any landlord for rent, or by any pei-son, not l>eing the party against whom such process has issued, and summonses have been issued on the application of the officer, charged witli the execution of such process, such summonses shall be served in such time and manner (p) as is directed for service of an ordinary sum- mons to appear ; and the case shall proceed as if the claimant were the plaintiff, and the execution or attaching creditor were the defendant. 38. The claimant shall, not less than six days (q) before the day appointed for the trial, leave at the office of the Clerk of the Court, a particular (r) of f ly goods or chattels, property or security, alleged to be the property of the claimant, and the grounds (s) of his claim, (Jt) See Ofay v. Offai/, 26 U. C. R. 363. (I) See seetiou 210 iiad note.s. The Bailiff should not retire from possession of the goods seizeil because an Interpleader summons has been issued: tiuiu- iiitrn. Ex parte, 18 Jur. 522. (m) See sections 156 and 170. («) See section 192 and notes. (o) See section 210 and notes, and Rihl v. Mr Donald, 26 C. P. 147. (p) See sections 62, 70 and 82, and notes. (7) Six clea~ days. (?•) Great strictness should not l)e exacted of a claimant in this respect. The test appears to be, is it calculated to mislead? Ex jxirfe M'Fic, <) ]']x. 261. This rule is taken almost rfrhatim from Rule 1.30 of the En;,dish County Court Rules. The grounds of the claim need not appear on tiie face of it to be valid, and therefore a claim to certain goods, stating that they had been assigned to the claimant by deed, is sufficient, although it does not apj)oar that the deed was good as against creditors : Hcq. v. lilrhardx, 2 L. M. & P. 263. (■•<■) A particular of the grounds of claim wliich states that the goods were assigned to the claimant by an indenture, &c., of which it gives the date and •••'.v. -I !■:>.' .•-.» I ■ ■•■. '■^■.■■T.--> \ ^ •- t,<lbt--. - '. . . t K • ^ f >• .5 *• • t*"- ^ ;.• '■■■ \- ., •• yt' \ ^ i. v:*-:* f? \ ^ ■•^. % ■■'..'. ■♦♦■■ *'•' ,» *■ .• ■ ♦'^•■';i*=;^. A■^Vi- ;■> ■-: »■ •> *■;.■«■ »/ i» • f.,,«<r , '^r/y ,V' ■ ' '" ',■ ■.•■;'.". '■ ■■.>■■■•' •"'."••'''tv--^.:';'";: .. • ■>:■»■: ■;. ■ ^v.. ' • . ■, '■■•'*:i' ;■. •.''■.■■;« •'-■•''• fv i" it ... ., « •' ^ - •f ■•%',•.'■ »:^ -A ?»•:. V.^■.••^-• . .!>' .V'^♦^;•;•<:^•t• ■ s 248 fiEXKRAL RULES. [Rs. 30-4:7. .:. ♦■ ' sot fortli iii onlinarv and coiidso lanifiiaijo ; or, in case of a cliiim for rent, tlio umount tlioreof, fur wliiit ])ono(l. in respect to what jyn'iiiiscs the sjinu^ is chtinicd to be due, and the terms of holdin«,' ; and an% money paid into Court shall bo retained by the Clerk until the chuin shall be udjudicatovl upon; (t') ])rovided that, by consent, an iutei pleader claim may be tried, although these rules may not havelteoTs complied with ; and tlie suni;nonses, the jxirticulars, and the ordcv thereon, shall be acconling to the Forms given or to the like eii'cet. Hi}, In case the claimant shall not have complied with the r\ilv in respect of delivering a pai'ticular of his claim, the Judge may, upon such terms as he shall direct, order the trial and proceedings to br adjourned, so as to enable him fully to adjudicate upon the cluiu\ on the merits. 40, Where the claim to any goods or ehatLels, pro]>erty or sf-ciirit y, taken in execution or attached, or the proceeds or value theif^of, shall bo dismissed, the costs of the Bailiff shall be allowed to him out (,V the amount levied, ((/) unless the Judge ! ' all otlievwiso oi-der. REPLEVIN. 41. In actions of Re2)levin no other cause of action (i') sliuU bo jointid in the sumn\0iis. 4?J. Where the distress is for rent, and the defendant succeeds- it/ the action, if the defendant requires, the Judge shall find the vahu- the p3,rties, antKciontly sets forth the groimtls of the claim luider tliis rule ; Jic;/. v. R'lrhitrdx, 2 L. M. & P. '2().S. (Joods having been seiaed under iin cxeontion issued out of a Couuty Court were claimed ]»y a tliinl party wlio delivered particulars of his claim. Tlie Judge refused to adjudicate on the claim ou the ground that the i»articulars did not distinguisli that portion of tlie good.s seized to which the claimant Wiis entitled. Ililil that he sliould liavt determined what i)art the clainaant was entitled to and given judgment ac- eitrdingly : 7iV.7. v. Sf'tj^fcfon, lo.Tur. 1177; 21 L J. Q. B. 8, s. c. A notice that goods " are and were my own projjerty, and not the i>roi>erty of l\,'' is not a comi)liance with tlie rule : Bcswir/: v. Bojfiif, i) Ex. 315. The Judge's decision witli respect to the suHiciency of tlie particulars is not conclusive . Ex parti M'Fcc, !) Ex. "2(51. A Superior Court will interfere to prevent a wrong of tho Judge in holding particulars insufiicient ; W'/iHehcud v. Prai'tet; 3 H. & N. 532; Ghurrhwnrdv. Coleman, L. 11. 2 Q. B. 18. (t) See notes to section 210, sub-section 3; also Fisher's Digest, 2147. (h) See MrCollnm v. Kerr ct al., 8 U. C. L. J. 71. (») See Rev. Stat. cap. 50, section 84; O. W. Rt(, Co, v. Cltadn'icf.:, !•! U. C. L. J. 29 J Har. C, L, P. Act 85. . . .■ 1 ■ . ! ".■f.^r'r^i-^: ^ Ks. 4V46.] OEXERAL UlLKS. 24'.i >o ■■ ■ .1 of the jnfoods (?/>) distrainod, niul if tlio valno be loss than tl.,^ ainomit of rent in arroar. jiidynicnt sliall bo givi^u for tlie amount of such value; but if tlio amount of tlit? vent in avrear l)e less tlian the -saliu' so found, judgnuait sliall l)e given for the amount of such rent, and may be inforced in tlie same manner as any other judgment of the (,'ourt. ■ili. AVhere the distress is for damm/c feasant (.r) and the defendant is entitled to judgment for the return, if the plaintitf n^quiros, the Judge shall find the amount of the damages sustained by the defendant, and judgment shall be given in favor of the defendant in th(! alternative for a return, or for tlie amount of the damages so found, 44. In any other action of replevin, the judgment for the defend- ant shall be for a return (>/) of the goods re])le\ied with the costs of suit, together with such damages as the defendant shall sustain by the issuing of the writ of replevin, if damages are awai'ded. (:) 4»'5. In case the defendant in an action of rejdevin sliall pay dam- ages and costs into Court, under the iJOtli section (a) of the Act, and shall leave with the Clerk a consent that the replevin l)on<l be delivered up to be cancelled, and an express waiver of all right to the property rejdevied, and the plaintitf acce])k such damages, tlio ))roceediiigs in th- said action of replevin shall thenceforth cease and be discontinued. 40- Befoi'e the Bailiff replevies, he shall take a bond in treble (fi) the value of the property to be replevied, as stated in the writ {ic) The defendant is imtler no obligation to pursue this course. It i.s <lis- cretiouary with him : J'li-i v. Monian, 3 T. 11. .W.) ; Mayno on Damages, Srd Ed. 374. (j') To the unprofessional reader we may say that this means "Found doing damage : " Wharton, 207. (//) See section 5(5, f' .^rf/. ; Rob. & .Fos. Digest, ,3307; Abiyne on Damages, 373, ct {<('</. ; see also Replevin Act, Rev. Stat. chap. 53. (;) If damages .are claimed tliey sliould be proved, as tlioy are not recoverable in any sul)se(|uent action : (t'ihh.i v. ('rai/i-^/i(inL; L. R. 8 C. 1'. 4i')-i. {a) Now the 89th section. (/') A bond with t/irrc sureties is good and can he assigned {Mciirm v. Mniihei', 10 U. C. R. '200), and the assignee can sue on it in liis own name: Jim-an v. La,>;ito„, {) C. P. 410; BMrr ct al. v. Ball et ai, 18 V. ('. R. V.Vl. The iisaignment of the bond need only t)e attested by one witness, but a subscriliing witness is necessary ; Hekjj et al. v, Cousinii et <t(., 34 U. C. K. 03 ; see section .'){} and notes. ■V^'^-^v-.ii ■ • • n ' . ■ ■ ■ . • -.:'-^:!^^ W . .... Ill LI!) II |«1|>|IM J^ It •■« •^•' I', ,■ -I, '-. I ■■ '■••■'■%: '^K?''^- .^^^SS> ■■■ mm ;:,.>•%^•.•^v::•■•;l .•v^-":»i?^^:- * 4 •fy-'.'', . '1 i( - '.■ • ■ f * *,..<■■ J * " •' ■■* .*". :■•. \ .*♦■ 1 ' " -^;v?^v;^^r ■>K ■'^. ■■•'..■> ?.-t ;:i ;*.* ■r:^:-ri* ■^ . .l■'^^• «f ^ , :^ '.•}:••• ■" ^i" . * ■; ' ■* '■ ■-.. ■■" ■•■■.^"^';Va I ;,,■ ■ ... -'i ., , . t . ■ ,'J, ■■.■,>^ ',:-«?■■ >;'.' ^4 ■^' ..)■■ % i&. ■.v-**'.^.. ■• . 1 ''" ■'■■ I ;i,v ■...•..>>< ' •'¥ •" •'■■".•••'.•';-. ,•,* "" ;''-^';^v.r': ^^? . " 4 ••,..•'...■'*■., .1** ■■"-■'.•',>.•»■*. .»' ' ' „' . . ' ' ' "^ . .C-'H.i|.i. . ;• (^ r'V'-; y>.v- Y. • ' ■.'■' ■■%■*' 1. * ■'4 Rr "^ ■ ■- *'''••• - •■' ■■ ■■"^;--.5;.;i;.. ■;;;•.■ :'... ■• '"'■.^>-'*-*- ■-..■. '.V 250 GENERAL RULES. [Rs. 47-50. wliicli bond shall be .assignable to the dofendant, and the bond and assi^^nment tliereof may be in the Form given, the condition boiny varied to correspond with the writ. 41, The copy of the " Summons in Replevin " shall not be served xil»on the defendant until the Bailiff has replevied the ])roi)erty, or some part of it, if he cannot replevy the whole in consequence of the defendant having eloigned the same out of the County in which Ik is Bailiff, oi- because the same is not in the possession of the defend- ant, or of any other person for him. 48. A copy of " Summons in Replevin " shall be served on the defendant personally, or if he cannot be found, by leaving the copy at his usual or last place of abode, with his wife, or some other grown person l)eing a member of his household, or an inmate of the house wherein he resided (c) as aforesaid, 40. The Bailiff shall return the " Summons in Replevin " at or before the return day thereof, and shall annex thereto : — «. The names of the sureties in and the date of the bond taken from the plaintiff, and the name or names of the witnesses thereto. ((/) b. The place of residence and additions (e) of the sureties. c. The number, quantity and quality of the articles of property replevied; and in case he has replevied only a portion of the property mentioned in the summons, and cannot replevy the residue, by reason of the same having been eloined out of the County by the defendant- or not being in the possession of the defendant, or of any other pei'son for him, he shall state in his return the articles which he can- not replevy, and the reason why not. Form 119. 50. If the Bailiff makes such a return of the property distrained, taken or detained, having been eloined, then upon the filing of such return, a writ in Withernam {/) (Consol. Stats. U. C. c. 29), shall (c) As to service of summons generally, see notes to sections 62 and 72. {(l) See Rule 46. (fi) See notes to section 62. (/■) In the event of the goods being eloined or removed out of the County, this, being a writ in reprisal, is issued ; under which property of the defendiint is taken, instead of the property sought under the first writ : Wharton, 264 ; Lush's Pract. 1025 ; see section 18 of tlie Replevin Act, and form of writ there referred to. ■ ~3». .11; ■,,■;•. Ks. 51-54.] (JENEUAL RULES. or, a I lie issued by tlio Clerk who isHued the summons in replevin; and lict'oro executing such writ, tlie Bailiff shall take pledges (y) (sureties) ill like manner as in cases of distress. -■• ■•-.-.. GARNISHEE PROCEEDINGS. 51. The affidavit (Form 40), rorjuired hy sec. 6 of the Act ot 18(59, (h) shall be made by the Primary Creditor, his Attorney or agent, and should state (in addition to the focts required by that section) the nature of the debt sought to be garnished, and tlu* amount thereof, if known to the a})i)licant; iind the application to the Judge may be ex j)cirte. 53. The warning (Form 42), shall be ondoroed on or subjoined to the attaching ordei- issued under section 6, sub-section 1, and on the summons referred to in section 6, sub-section 4, and section 7, sub-section 1. [i) 53. The service of the summons on the Gai'nishee shall in all cases be made at least ten days (j) before the return thereof, and the servici^ on the Primary Debtor or Debtors, ten, fifteen, or twenty days (/!•) (iiocording to the places of i-esidence of the parties to be served), l)efore the return thereof. If the amount of the Primary (Jrcditoi's I'liiim exceed eight dollars, the service must be personal, unless the Judge order otherwise ; if such claim does not exceed eight dollars, the service may be personal, or on some grown-u[) j>erson Ijeing an inmate of the dwelling or usual place of abode, trading or dealing of the pei'son requiring to be served. 54. The Primary Debtor shall in all cases, unless dispensed with (l) by the Judge, be served with every garnishee summons, and if not served, the Judge may, on such terms as to him nmy seem meet, adjourn the case until such service be effected, and may also order any other person to be made a party to such suit, and to be served with such summons. (tj) See Replevhi Act, section II, ami Rule 4(). (/t) See section 127, ami notes. (i) See sections 127 to 135 inclusive, ami notes. (j) See sections 70, 72 and 131, and notes. (k) See Rule 18. (I) See uotea to sections 131 and 134. -i» » * i . ■' : t ■. -'» '*-1 :V/r. ■■ • :■ ■ ■,,>'\ ^' ■-"/■■■., v.^vv; ■■■■ •i''.-r..t^i?., i>r)2 (iENKHAL HILES. ■ ■ :><;-,".y::.'v-:i • ■ . .V* ...... ■. '. ■ .."■■■ ^4S^.-V^^''-' ■^'■'■'■•••■v^^vV-::, ■■'■■■> »'•( ■ ■. ■ '■■^- ••'■•''" ;.-' .'■•■?v:.-Si. .■••■■ t'-^:^ , •. -A .•>»?.;:■ , ■' ■ '' '**t v^ - ;■" ■■. ;,v ■•.,>■*■ ■ tt , -\ (■ ■•■...■^-y.-'---^ "* •■ . ..* ;>■•'.••<■■'■ <• * j ';•"■■. 'v:'^.:. "V •"■■ "- xv'' !,•*' .» ' • "^ ■...-■• *. ■l;^C":l^iC ■ •;•- J^'^-'SaI: v. - ' '-'^?^.-:<^:: ■ '.^■' , ■^.•.'..,^':;_. ■. y \ 'V'.' "r-r'-'- *■ '■_ \i '' ■*';i '::\S-..:-.! ■ 'U f • .'A..-. . ^' * '. *^>it.' if^V' ■■*■■' M U ,. ;.-.■. ■It^'xl"'' ■ .» • . ■ *■ '*'•';'''■•*' '.■ ■. W 4'..''! -,.;'.•' ■»" ■ r ^- ; -^i" '-->■-■ '\;?- //i:;v^*i,^/'-.' ' r -.t-^t !; ;/;'^ • . '■ '*< ■♦■- •^: -■::■: »'' .* *fc- fit • ■.. V :;.*■ '.• » . ■ s '-•t- '■ x;>:'- ' [Kh. n.')-:)!!. ,%,"►, TliP .Tiidgo, in any sudi ^iirnishcc ])VOC(>0(Hng, may order tliai tlio H(!rvico need not he \nivsonii\, (in) luit may Ije mail(> on any iicr.sou or porsnns to l»o named in tlie order, or in sucli other maniiei- as tlir .)iidj;e may direet. r»0. If tiie( iarnisliee or the Primary Debtor liavini,' l)oen served (n) does not appear on the rctnrn of sncli sunnuons, Judifment may In- given against liiiw by defanlt; and if only some of tlie parties r('(|iiii(il to bo served, are served, tlie Judge may give the same jndgincnt ugainst those served as in ordinary cases. 51. Where the summons, under section 0, sub-section 4, (o) is to lie issued from any Court other than that in which the Primary ('iiMlitni has obtained judgment against the Primary T)e])tor, a transcript ot such judgment shall be tiled with the Clerk of such tirst mentioned Court, jircn'ious to the issuing of the summons against the (Jarnisliee. 5H, No payment (;>) shall be made by a (Iarnisliee to a Piimary Creditor before judgment given against the Primary Debtor, except an order for that purpose be tirst ol)taiued from the Judge. 511, The apj)lication under section 14 (y) must be by sunnnons obtained from the Judge, retm-nable at any time and place the Judge may api»oint, an<l calling upon the Garnishee, PrimaryCreditor,oi' such other person or persons as the Judge in his discretion shall think tit. If the money has l)eeu paid over, the Primary Creditor or other pei'son may be called upon liy the summons changing the form tn suit, to shew cause why he sliould not pay the money to the Primary Debtor or other ptn'son applying. The order, if granted, may be in accordance with the summons, and may be granted if parties summoned make defaidt, or otherwise, as in ordinary Chamber ai)i)lications in the Superior Courts. (w) After i"cas()iia1)le attemj)ts have been made to effect service (To)tiHii.'<(>ii V. Goitii'tf, L. II. 1 (!. F. 2;i0), the Judge may preseril)e in what way service inaj' he made : see notes to sections i;Sl anj IIM. The efforts made to etfVct (service should appear by affidavit or by the evidence of the Bailiff given in Court. ()i) Is personal service here meant, or would it apply to a case where personal service was dispensed with ? It is submitted that it would not, and that judgment shf)uld not he entered 1)y default where the Judge dis]jenses with personal service : see latter part of section 82 ; see also section 132. (o) Now section bSO, (/)) See section 129, ('/) See section 1 12. ■■*■ ■ ! .-- ,,„<^^ ■♦■V. \ ' ., :..,■ ^m/mm r.o-nr..] ••■•vn f;Ksr;uAi. itn.r's. •2y.) <J0. TIm* I)()ii<1 to l»o i;ivfii iiinlcr srctioii 1") (r) sli.ill \h' oxecuW liy tlio Pi'imai'y (ireditor, or liiK ii<^eiit, with one siitlicii'nt surt'ty in (loiihlc tlio ainouiit of tln^ dcht ordered to be i)iiitl Ity tlie (iiiruiHlieo, and sliiiU be an ordiuaiy bond U) tlie (,'lerk, by his name of otlice, ijinlitioned foi- the re-p.iyinent of the money in case re-payment lie orih'red, and .such l»ond shall be approved of by the Clerk. Fo!in 47. <»|. In addition to any eostn that may be awarded a,i,'ainHt a (lar- aishee under the 11th section, (s) if the Primary Creditor is ol)liij;ed to issue execution at^ainst him, the costs of such execution and the Bailiff's fees thereon may be also levied of the Garnishee. ii't. The Forms subjoined to these Rules for garnishee proceedini,'s shall be in lieu of tlie Forms for like proceedings in the schedule of the Act of 18G1), and the entry in the debt attachnient book shall riiiiimence wlien the attacliing order or garnishees summons, as the casi' may be, tirst issues, and each sul).sequent proceeding shall b(? catered therein wIkmi taken. illi. In the i)roceedings against (larnishees under the Common Law Pi'ocedui'e Act, sections '2\)'2 to 21)6 inclusive, (t) the forms 48, 49, •")0. 90, may be used ; and the same proceedings may be taken in the Division Court against the Garnishee as provided in the Act of 1809, and in these Rules and Forms, made under the said Act, as far as applicable. , t . ,1 ..Ay'*-.. '1 •'* .>• >l PIIOCEEDINGS BY A^'D AGAINST EXECUTORS AND ADMINLSTllATOKS. <J4. A pai'ty suing an executor or administrator, may ohai'ge in the smiunons, in the Form 32, that the defendant has assets, and has wasted them, (u) 05. In all cases, if the Courts shall be of the opinion that the defendant has wasted the assets, the judgme<it shall l)e, that the ()•) See section 143. (•.) Now section 139. [() Now sections 311, 316, inclusive, of the C L. P. Act. (») See Williams on Executors, 1()29, ct scq.; Abbott v. Pnrjitt, L. R. 0, ^. B. 346 ; Dicey ou Parties to Action, 216 ; Coward v. GreijOrij,'^ L. R. 2 0. P. 1"):5 ; Davis C. C. Acts, 361 ; Law Reports Digest, 1215 ; Rob. & .Jos. Digest, US6; Arch. Pract. cap. VIIL, p. 1232, Rule 71. ■■ ^-(M' ■v\;^^:. ^ . ■ J, ':■ ^ .1...' ' .. ' - r 111- ' «. ■ « - .f ■. ■* A' -* •» . . I. .'^■*' '. '.'mw'^.^- •* I ■' .'. .■•*i'i . *.'>■;■ I . *. ■ j» a' ^ I t I *l '•' f v.. .%. ''* • • "r «■■■.. ; ,; ly ■ •..>>. • . •: ^•'y,,V:i-c.:.-; ■:■, r.i'.'..;..^-. ' : . ^;. . .■> 254 GENERAL RULES. [Rs. (;(;-7o. debt or (Ifunagos, and costs shall l)e lovicd (fe hnnis testatorh, .n', (fv.. et, si non, (fe honix jn'opriis: and tlic^ iuin-)>ayinf'nt of the amount of the doniand iiiiincdiatcly, on tho ('o'.irt fin(lin<,' such doiuiin-l to ho coiTcict, an<l that tlic dufcndant is cliar^^cahlo in rcsjKict of Jisscts. shall ho conolusivo evidonce of wi'-Jting to the amount with whicii he is so charjLfeable. 00, Whore an oxocutor or administrator denifss his representative character, or alleges a release to himself of the demand, whether lie insists on any other ground of defence or not, and the judgnuMit of the Court is in favor of the plaintiif, it shall be, that the anioinit found to be due, and costs, shall bo levied de bonis testatoris si, ((r.. et, si non, de bonis propriis. 01. Where an executor or administivitor admits his representative character, and only denies the demand, if the plaintiff jn-ove it, the iud<'ment shall be, tliat the demand and costs shall be levied de boriis testatoris, si, ttc, et, si non, as to costs, de bonis propriis. OH. Where the defendant admits his repi'esentative character, lait denies the demand, and alleges a total or partial administration of assets, and the plaintiff i)roves his demand, and the defendant proves the administration alleged, the judgment shall be, to levy the costs of ])roving the demand de bonis testatoris si, li^c, et, si non, de bonis 2)ropriis; and as to the whole or residue of the demand, judgment of assets quando acciderint ; and the plaintiff shall pay the defendant's costs of proving the administration of assets. 09. Where the defendant admits his representative character, hut denies the demand, and alleges a total or partial administration of assets, and the plaintiff proves his demand, but the defendant does not prove the administration alleged, the judgment shall be, to levy the amount of the demand, if such amount of assets is shewn to have come tx) the hands of the defendant, or such amount as is shewn to liave come to them, and costs, de bonis testatoris si (Lt.., et, si non as to the costs, de bonis propriis ; and as to the residue of the demand, if any, judgment of assets, quando acciderint. TO. Where the defendant admits his representative character and the plaintiff's demand, but alleges a total or partial administration of the assets, and proves the administration alleged, the judgment shall I. ■ -1..* . i^ t , ■^^yr ^ni Us. 71-74.] GENERAL RULES. LY);") 1)1' for nssets, qunndo ncchhrint, and tho plaintifT sliall pay tlio tlefeml- ;iiit's costs of proviiij^ the adiniiiistratiou of uHsots. (ij) 11, Wlicro a (lefcndant admits Ids r(![)r('Hontativo cliamctrr, and tlie plaintiff's dt^mand, ))ut allnfjns a total or partial administration of tli(' iiascts, hut (loos not pro^o tho administration allt'<,'cd, (m) \\n\ jiidiimont shall bo, to levy tho unionnt of the; demand, if so iimcli assets is shewn to have come to the defendant's hands, oi- so much as is shewn to have come to tlmm, and costs, da bonin fextdforis si\ <l'c., >7, si von as to the costs, de bonis propriis ; and as to the resiilue of the deniiind, if any, jud;.;ment of assets, qnando aociderint. 7*ii. Wheie judgment has been <|iven against an executor or administj'ator, that the amount be levied upon asset.s of the deceased, tjiiando acciderint, the plaintiff, or his poj .sonal represcntativi^, may issue a summons (Form 34) ; and if it shall appear, that assets have come to the hands of tho executor or admniistrator since the judg- ment, tlie Court may order that t\. ■ debt, dama.'os, and costs be Ifvied Je bonis testator is si, d'c, el, si non, :\'< to tho costs, de bonis jnojn'iis : provided, that it shall be competent for the party applying to charge in the summons that tht; executor or admiidstrator has wasted the assets of the Testator or Intestate, in the same manner as in Rule G4 ; and the provisions of Rule 65 shall ajjjtly to such I'nquiry ; and the Court may, if it appears that the party chr.i-ged has wasted the assets, direct a levy to be made, as to the debt and costs, de bonis testator is si, t£'c., et si non, de bonis j/ropriis. U{, Wliere a defendant admits his representative character and the plaintiff's demand, and that he is chargeable with any sum in respect of assets, he shall pay such sum into Court subject to the rules relating to payment into Court in other cases. 14. In actions against executors and administrators, for which provision is not hereinbefore specially made, if the defendant ftiils as to any of his defences, the judgment shall be for the plaintiff, as to his costs of disproving such defence, and such costs shall be levied de bonis testator is si, d'c, et, si non, de bonis proj/riis. {v) See, as to costs where defendant succeeds on plea of plene administravit, Arch. Pract. 12th Ed. 1231 ; hjgulden v. Terson, 2 Dowl. 277. {to) See notes to Rule 64, and L. R. Digest, 986 ; Fisher's Digest, 3941. ■,l-* * ■« X ■ , .V; • •* ■ J / • ■ ■ ■'. 4; ■ -Jr.; ».;.>...■' I ■' wmm ..<•' • ' * ; ■ ..•■ V, ;• ■* , . V » y ... * ■' ■ '' < ■■■'-•. - •: .^ ■.■,■.' - ;■.:'■'] .:-:^':. ■ ». . .- •■ ■ ■ ' . rv • ■•■.:« r :^.--; ..•,■,•;, ■ :•. •::^'';. '.V'-i, ■. - ■. ■■ • ;•.•'•> '. ..<.' • . • .. -'.■>■■_■» •«' * < •.^. ■■•.■:. ..-,.> ■• •;■' l(:^-J--rK • ■ . ^/ ;. "i "•■■ . ' . ■" ,.-,'•'•. ..♦:■■ ";• • • • ,""'■»'« .' •, ; j ■.. .••!- ... ■ .■.. ••;. „■■., ■.;/>. '-v?.' . ,.• .. . . " *» ■': V ■■ « ■ . ' • - i i '*■'■ - .'v;.*. *'^'-K>^ -...,■• TW-Oi'V' V- •1 ■ • /, '.- •■■ ■ i'-: ■■^^:>.- - ^H . • •:•.■-*. -. * ••>*■ J» '. ' ■ *■ . .' ■» ^ i ■ "■• V*- .- ' 9 ; ,< f . -; •K. ? .*v r.'-T >■ ..-■', 1 ^^"iv;*..^ t'''. '.'.'•* '*.:-f.:^'^ . -"' '_'.") <; CENERAL RULES, [Es. 75-81. j^ 7*9. Ill actions by executoi's or adniinistrators, if the plaiiititt'fail. the costs shall, unless the Court shall otherwi.se order, 1)e awarded lit I'avor of the (iefendant, and shall be levieil de bonis j^vopri is. CLERK'S AND BAILIFF'S DUTIES. 7i\, The Clerk of every Division Court shall have an office at ^iuc•I^ place, within the Division for wliich he is Clerk, as the Judge shall direct. X'%, The following books shall be kept by the Clerk, and the necessary entries fairly nuide therein, namely: 1st, a book to he c died " the Procedure Book," in which shall be entered a note of all Process issued, and of all Orders, Judgments, Decrees, Transcripts received. Warrants, Executions and Returns thereto, and of all other proceeding in every cause and at every Court ; 2nd, a book to be called the " Cash Pook," in which shall be entered an account of all suitors' moneys paid into and out of Court ; and 3rd, a '• Dei)t Attachment Por»k," which books shall be according to the Forms 4, .3. (), and kept, as nearly as may be, in the manner shewn in the Forms. '^8. The Clerk shall number every claim {x) in the order in which it is received by him : the numbering to show the standing of the suit, in respect to the whole number of suits entered in the Courts for the then current year. 70. I'l any case where the proceeding by Special Summons is warranted it shall be adopted by the Clerk unless otherwise ordered V>y the plaintiff. HO. The Clerk shall annex to every summons (/y) (whether original, alias, pluries, or renewed) tlie copy of claim, entered witli him according to the 3ril Pule ; and to each copy of summons to he served, shall be likewise annexed a copy of such claim ; and the Clerk shall, without delay, issue the same for service. HI. In case ])rocess is required to be served in a " Foreign Divi siou " and the plaintiff does not elect, and the Judge or Clerk does not make any order as to how it shall be served, it may be trans- (j;) Sec section 68, and notes. (jj) See section 09, and notes. ut';*^Jj£:-1f,-. .■, , .-■.■.V Rs. 82-85.] GENERAL RULES. 257 luitted by mail, by the Clerk issuing the same (on receiving tlie iiocessary postage and fees) to the Clerk of the division where the same is required to be served ; and such last mentioned Clerk shall forthwith deliver such summons, or other j)rocess, to the Bailifl' of his division, to be execnted ; and such Bailift' shall serve the same, and forthwith make return thereof to the Clerk of his Court, in the manner required by the 90th Rule, and such last mentioned Clerk, on return made, shall forthwith transmit the i)a])ers, by mail, with the necessary affidavits of service, if effected, or if service is not ertected, with the proi)er return to the first mentioned Clerk. HH, Every ordinary summons must be served ten, fifteen, or twenty days (y//) (according to the residence of the defendant) before the holding of the Court at wliich it is returnable (neither the day of service nor the day of holding the Court to be counted), and where any such summons has not been served, another summons, or successive summonses, may be issued. 83. The Returns required to be made by Clerks under the list (z) section of the Act, shall be according to the Form 115, and shall be made immediately after the 30th daj of June and the ."Ust day of December in each year, without any special order from the Judge. 84. The list (a) of unclaimed moneys, required by the 43rd section of the Act, shall be made xinder oath according to the Form, and shall, in the month of January in each year, be transmitted by the Clei'k, together with the moneys (if any) therein mentioned, to the County Crown Attorney, and if no money remains unclaimed, the fact shall he stated in the affidavit. 85. The summons, under the 160th section (b) of the Act, may be served by delivering to the defendant a copy thereof, and shall be served ten days at least before the day on which the party is required to appear ; but the service of such summons, at any time before the day appointed for the appearance of such party, may be deemed by (yy) See sections 70 and 71. {z) See section 42 and notes ; 41 Vic. cap. 2, sec. 34. (fi) See section 43. (/)) The 177th section now, and under which judgment debtor are examined as to their estate and etit'ects. 17 4 ■..-vv ■-::•. .^i-'. ■!;■■■ ■ " '■*- ^,- ; '•]■ . '. ' •:, ■■.'■' •'■ I .,■?»■ '•• . ■ '. ■'■■ .V, •: ;. -. t ■. -'« -r' >■ J '\ i»; •i 4-: -., '••V ..jL'"' •f-s: ■'^.:-l V^^T: ,'- ■■>.•■' ■;>•-•' ■■■,■»'■■•■•• • >'*--^ .. !» V. ... : 'It ^-;^.^^■^^ ■;':■:' ■■ ■ :>.•.,■■.^-N:..;■!■,^.•■ ■■ '•■■•^i ■..;■•>«. •_■■ ■'!<- -r*' '>?•■• • > •"!-> '!V* '"'"''"■''♦ • .■,,•■ r ;M: ■.•■■* V^v ■ :■- .-. ..••■■•^ •,••■■,■ „ '. '.■'.••■• •■'r. *■• V' ' '.. '■;•*■.'; ■,!' ■ -I*.,- .,•-■.*■■.■■.» .,. " .« ' .4 . '. ■;.*•■•:'•/ ■N5 258 GENERAL RULES. [Rh. 80 -90. the Jvidge to be a good service, if it .shall be proved to his satisfaction that such party was about to i-eniove out of the jurisdiction of the (jourt, 8ft. All the papers in the cause received or filed by the Clerk shall be kept by him together in the original summons, (c) and be pro- duced by the Clerk at the hearing of the cause, or when reipiired, on api)licati<jn to the Judge. The original summons, in all cases, shall be printed on a half-sheet of foolscap, in order that the papers may be so kept therein. SI, The notice of payment into Court under sections 88 and 91 (<^/) of the Act, to be given by the Clerk, shall be according to the Form 102, sees 9 and 10. 8H. In case the defendant shall have given the Clerk notice that he disputes the plaintiff's claim, or any other notice of which the ])laintiff should be informed before the trial, or if the defendant has given a confession, or failed to give notice of defence when rerpiired, the Clerk shall immediately send the plaintiff notice thereof. (Form 102, as the case may i-eqnire.) 8t), In every case in which the Clerk is recpiired to tax costs he shall make out a bill in detail, and the same shall be endorsed upon or annexed to the original summons, and may be iu the form sliewn, No. 114. 00, Every Bailiff receiving summons for service fi-om a Clerk, shall, within six days after service has been effected, make a return to such Clerk, shewing the mode of service, and for every such return and attending at the Clerk's office to make the necessary affidavit of service, the Bailiff will be entitled to a fee of ten cents, to be allowed as costs in the cause ; but he shall not Ije entitled to such fee unless the return be duly made within the six days mentioned, (e) And where a summons has not been served, the Bailiff shall, immediately after the time for service has expired, return the same to the Clerk, stating the reason for non-service, in writing, on the back of the summons. ( c ) See section 36. (d) Now sections 87 and 90. (e) The day of aervice is excluded : see sectiona 52 and 72, and notes ; 9 U. C. L. J. 2jC. mjKM mmifmm Ks. 91-94.] GENERAL RULES. 259 01. The Bailiff shall attend every sitting of the Court at the place appointed for holding the same;, at such time as shall be requii-ed by the Judge, and see that all suitable })veparations arc made for the proper accommodation of the Court. He shall make all necessary proclamations, preserve order, call the parties and witnesses, and ])erforin such other duties as may be imposed by the Judge. And for calling the parties and their witnesses he shall be entitled to receive, in every defended case, the sum of [fifteen] (ee) cents, to be taxed as costs in the cause. 9*4. The Bailiff shall keep a book (see Form 1 2G), to bo called " The BdUiff's Froce>is Book," and he shall enter therein every War- rant, Process, Order or Execution which he has been required to serve or execute, and shall enter, from time to time therein, what he shall have done under or with each said Warrant, Process, Order or Execution, and if the same be not executed or served according to the exigency thereof, why it was not so executed or served ; and the Bailiff shall, at all reasonable times, give to a suitor or his agent every information he may recpiire as to the execution or service, or non-execution or non-service of any Warrant, Process, Order or Execution which has been issued at his instance ; and the book so required to be- kept shall at all times be open to the inspection of the Judge or Clerk. 03. At every Court, and at such other times as the Judge shall require, the Bailiff shall deliver to the Clerk of the Court a statement or return on oath (Form 12G), of what shall have been done, since his last return, under every Warrant, Precept, and Writ of Execution, which he shall have been required to execute. 04. The Returns mentioned in the 93rd Rule shall be filed by the Clerk in his office, and be open, without fee, to the ins})ection of any person interested ; and the Clerk shall examine such Returns, and if found correct and complete, within ten days after Uie receipt thereof, endorse thereon a memorandum in the foLowing words : " I •'have carefully examined the withiii Return, the same is full, true, and "corree*, in every particular, to the best of my knowledge and belief. ''Dated the day of 18 , Clerk." And if .such (ee) Originally "five," but changed to "fifteen" by rules made on 2eth June, 1874. Rule 168. ■ .'''-./Ji. ■ V ■;/.• •■:..!l ■■',.' '-.5. ■' 4: . * ■: , I- ■',■:■>'■ ■ • • • ■ '< ■.••.»;''") ; ;•■ ■^.:;>.••.•A;.••■ '•■■■-.',—■ «'i '■■■V' ■ ■ ■■ :V ?■/". •!;■'»■■. * . ■'..;•■< .-';■ ■■■ ■" . -.",■, '^ ^t,-. ~ . ■ , . ^^:^ ■■: ■ ', J ... k 'llu'. :,■• •^ • .■■V-\,v;v ■•:■' •'■••? ■■}r'r.j ^■^ ■" *■_••■<• "*** ••'"••(;•..■• ■ .. .,' .N* ■^•'!*- -..i '* .•".«'■ 200 GENERAL RULES. [Rs. 95-100. returns be found by the Clerk to be incorrect or incomplete, ho aha] I forthwith notify the same, with the particuhir.s thereof, to the Jml;i,'(?, and if no return be made he shall notify the Judge thereof accordingly. 05. In case the Clerk shall receive money for any pai'ty by virtue of his office, he shall, without charge therefor, forthwith notify the party entitled thereto, or the Clerk from whom he received the transcript, that the same is received, and subject to his order; and if he shall fail so to notify the party, and pay over the money upon demand, he shall be subjected to the loss of his office. {/) 00, Every Bailiff' receiving any money by virtue of his office shall, within six days after the receipt thereof, pay over or transmit tht; same to the proper Clerk, and, neglecting or failing to do so, shall be subjected to the loss of his office. OT. The Clerks and Bailiffs of the Court shall not, upon any pre tence whatever, withhold any moneys received for suitors, on the ground that the Clerk or Bailiff may be indebted to the officer hold- ing such money either for fees or costs or otherwise ; but all such moneys, when received or collected, shall at once be duly paid over to the order of the party entitled to the same without reference to such accounts. 08, In case the proceedings in any suit shall be hindered or delayed by the neglect or misconduct of the Clerk or Bailiff of a Foreign Court or of the Home Court, the Clerk or Bailiff causing the same shall forfeit all fees in such suit, and shall, in addition thereto, pay any loss or damage that may result from such hindrance or delay to the party suffering therefrom. 00. No Clerk or Bailiff shall, directly or indirectly, purchase or be concerned in the purchase, or have any personal interest in a suit or judgment or claim in suit, in the Court of which he shall be an officer, and any Clerk or Bailiff transgressing this rule shall be subjected to the loss of his office. 100. No Clerk or Bailiff shall, either by himself or his partner in business, be engaged as agent for any party, during the conduct of the cause in Court, and any Clerk or Bailiff" transgressing this rule shall be subjected to the loss of his office. (/) See section 26 and notes. ■« Rs. 101-104.] GENERAL RULES. 261 • • i WARRANTS OP COMMITMENT. /"^ 101. Warrants of Commitment shall bear date oi^ flae day on which the order for Commitment is entered (y) in the Procedure Book, and shall have endorsed thereon the amount of debt and cost« on such proct adings, or of fine and costs up to the time of its delivery to the Bailiff for execution, and shall continue in force for three <;alendar months (h) from such date and no longer, unless renewed by an ex parte order of the Judge u}>on affidavit shewing the cause of the non-execution, and that the moneys payable thereunder have not been satisfied. lO^. TbiB renewal (i) of a warrant may be made by the Clerk marking on the margin, or endorsing thereon, the following words : — " Renewed by Judge's order for three months from the day of A.R 18 X Y , Clerk." lOtt. The Bailiff or other officer executing any Warrant of Com- irnitment, shall, at the time of delivering the party arrested, with the Warrant, to the Jailer, indorse on the warrant the number of miles, shewing tlie amount of mileage, and alHO state, in writing, the actual cday of the arrest- AMENDMENTS. 104. In ease a special summons is issued when an ordinary sum- mons should be issued, or vice versa, the same may be altered or amended (j) by order of the Judge, either before or at the hearing, on such terms as the Judge may direct. (g) The omissiou to eater the order does not render the warrant Lad : Peck V. McDoiujaU, 27 U. C. il. 353. {h) If a party is arrested w'dhin the three months he can be detained after the expiration of that time : Hayes v. Keem, 12 C. B. 233 ; see also Davis' C. C. Acts, 148 ; 4 U. C. L. J. 62. (i) It is submitted that there can only be one renewal of a warrant of com- mitment : Nciliion v. Jarvis, 13 C. P. 176 ; see sec. I(i3 and notes. (j) On the subject of amendment generally, see Rob. & Jos. Digest, 74, et seq., and L. R. Digest, 137 & 1540. "The Courts have now power at all times to amend all defects and errors ; and it is their duty to make all such amend- ments as may be necessary for determining the real controversy between the iiarties: " ;>pr Lord Campbell, C. J., in Parmmv. Alexander, 5 E. & B., p. 2(56. n the case of a misprison of the Clerk, the amendment may be made at any «tage : ]H'r Pvrke, B., in Kirk v. Dd'jjf, 8 Dowl. 766. When amendment has oot been male within the tim< allowed, see Waterous v, Farran, 6 P. B. 31. If :^•^•^-.. ^■:|t-si- •■■..II ■rj^^A •■«.> .>■ 1 ::m " .■•■.T • '• •' ''1 ■• %, ■' , ■ * ."♦■'< ,■-■•; ■ ■# '*•■, -.1 .-. . ..-^',?. ;■; .'■' ;. •/•r, t< , ' v.T-'* '■■•■> • /'. ';■>■;••;.'•-■•■ •:■ v;,--V:'i,.'., • -■■■•*:i* r '/W-,' •, ■ ■". '.v,'.*;'.' "■ w ,•■■-. ;'i.*."!l'V''/!;'' . .■ > .> -v^' '■ ■ • ■■ ■«f;^^-.iV. ;:■■-. .1 ■*"■.'•■*• ^ >- t.- T* . ^» ■„, ::^>;:>-'. : • ""*? w " , *• ".*... i ''•■.•■ A. •*? •JG2 GENERAL RULES. [Es. 105-108. 10«1». Tlie i)liuntiff shall be allowed to amend his pvoceedinj^s by striking out a defendant's name at any time upon payment of sticIj costs as the Judijn shall order ; or the Judge in his discretion may allow the plaintiff to make such amendment, and order a judgment to be entered as in case of nonsuit against the plaintiff ii\ favour of the defendant whose name has been struck out. 100. Ii^ case an action shall be brought in the name of an assignee or pei'son lieneticially interested \i\K)ii a chose in actioiA which is not legally assignable, (k) the Judge may at any time oi'der the proceedings to be amended, by substituting the name of the }>er son legally entitled to sue for that of the plaintiff, upon such terms as to indemnity for costs or otherwise as to him may seem meet. 101. Where a party sues, or is sued in his own right, and it ajij^oars at the hearing that he should have sued, or been sued, in a repre- sentative character, (l) the Judge may, at the instance of either party, and on such terms as he shall think fit, amend the proceedings accordingly ; and the case shall then proceed in all ix;s[>ects as to set-off and other mattere, ivs if the pro|x;r description f the paiiy had been given in the summons. 108. Where the name or description of a plaiiitif in the summons is insufficient or incorrect, (m) it may at the hearing 1^ ameud(>d, at the instance of either party, by order of the Judge, on such terms as he shall think fit ; and the cause may then proceed, as to the set-off and other mattei's, as if the name and descrij^tiou had been originally such as it api>ears, after the amendment has been made. the case is beyond tlie jurisdiction the Judge cannot amend : In re Mnclrnzic and Rjtan, G P. 11. 323, and cases there cited ; 10 U. C li. J. 94. But see Fitz'it»iino)t-s V. Mclnfi/re, 5 P. R, 1 li), and In re Slo(jdalc and Wihan, 8 F. it. T) ; see also Dixon v. Snarr, (> P. R. 33(5. An altei'atiou in the parties to an action will not be made on an ex jKirte apjjlication : Tildcdt-ii v. Harper, 3 (Jh. l). '277 ; see also Foacoe's N. P. 304; CampMl v. Ptttit, 2 L. J. N. S_ 211 ; ^''isher's Digest, 122. [k] As chases in action are now legally assignable (Re/. ■' ... ...--ae 1117^ there will be a ditticulty in applying this rule. On the <)ucs^; ... . -•Doiidmcnt by adding name of a jJaintitt', see Blake v. Done, 7 H. & N 4t ihjUrie v- Meliortf, 15 C. P. 557 ; La Banca NazUmale v. Hamhnrqer, ;5 A 'J. 330 ; Ckuj v." Oxford, L. R. 2 Ex. 54 ; Milh v. Scott, L. K. 8 (^B. 49o ; Bo/iuifhroh- (Lord) V. Ihnmxend, L. R. 8 (!. P. G45 ; Dicey on PiU'ties, 499. As to tlie assignment of choses in action and the conse(|uence8 ther&>)f, see notes to section 68. (/) See notes to Rules 104 and 106 inclusive. (»>) Where any amendment is required m this respect, it is usually made as a matter of course. lis. 109-112.] GENICUAL RULKS. 203 lOtl. Til actions by or agiiiust a Imsband, if the wifo is impropiMly joined or uniittud as a party, the siunnions may, at the hearing, be amended at the instance of either i)arty. by order of the Judge, on such term.s as he shall think tit ; and the* cause may proceed, as to set-oif and other matters, as if the proper person had been madt; party to tlie suit. 110, Where it appears at tlie hearing that a (jreatcr monher ()i) of j)ersons liave been made plaintifts tlian by law reipiired, the name of the person improperly joined may, at the instance of either j)arty, be struck out by order of the Judge, on such terms as he shall think fit; and the cause may proceed, as to set-otf and other matters, as if tlie proper party or parties only had been made plaintifls. 111. Where it appears at the heju'ing that a less tiumJier (o) of persons have been made plaintiti's than by law required, the name of the omitted person may, at the instance of either i)ai ty, be; added {p) l)y order of the Judge, on such terms as he .shall think fit; and thereupon the cause may [)roceed, as to .stst-off and other matters, as if the pi-oper persons had been originally matle parties ; and if such person, either at the hearing or some adjournment thereof, i)ersonally or ))y writing, signed by him or his agent, consent to become a plaintiff iu manner aforesaid, the Judge may then pronounce judgment as if such person, had originally been nuide a plaintiff; but if such person shall not consent to become a plaintiff in manner aforesaid, either at the hearing or at the adjournment thereof, judgment of nonsuit may be entered. 113. When it aj»pears at the hearing that more persons (ry) have been made defendants than by law required, the name of the party . 0' i in) See Bnck-'T v. Ancell, 2.3 U. C. R. 481. (v) See DK/i-mlre v. Bof/anln.s L. K. 7 C. P. 409 ; Mai«ilmn v. Blnh-, L. U. 3 Cli. 32 ; Ihnd('r/<oii <;t ai. v. Whlt<\ 2,S (\ P. 78 ; Trusf.^cs AinliijriUc Wixh;;an MdhodiHt C/iurrh v. Ui-cwcr, 2;j C. P. alW. (/)) Tliere can he no suhsttfufloii of oao plaintiff foi- anotlier : }V'r Brett J., at page 4f3 of L. II. 7 0. P. ; jwr Blacl^hiuii, .1., at page 4'Ji> of L. 1{. 8 Q. \i. ; a,ndj)er Hagarty, C. J., at page '}',]S of 2;i ('. P. (7) See notes to Rules 104, 10(5, 110 ami 111. There is no authority for n.'/(/(»7 a defendant under tliese Rules. "It appears clear that neither tlio (Jourt nor a Judge have any power to remedy the iioii-joliidcr of a defendant : " Dicey on Parties, .'5t)7 ; (jurninl v. (I'lti/ilhi, 11 C. 15. N. S. 61() ; in Kx. Ch. 13 C. B. N. S. 882. A iiiisjiHiidir can l)e ainendeil luuler Rule 10."). In l'hi}.dand it was li'dd that the provisions of tlie C L. P. Act, in respect to ainendinent.s, (lid not extend to County Courts : Wirhx v. Grorc, 2 Jiir. N. !S. 212 ; see also Wickens v. ISteel, 2 0. B. N. S. 4!i8 ; HiAdan v. Ballunti/iie, 29 L. J. Q. B. 148 ; I' '1 *,;;.'ly.f'< f >.'»■;••■•■■■ ■ ■ • • -Si.'.™/."' ■.*.•■■■•■"■;•-•. . ,. ' ■.''■■'■-■'';v ■ ■;'-'i,. *ii'> ■ VV'^r. . '. "T ' ^'^^^^.^it ,- !• '.v I-*-; ■-'.'■ - '•■.•■ •.«",■.."■.■. 'A ' '^ «■ .. "* :i ;,'■', - ' ; I ■ • •'•■' .•« ' ... *■'■ . ..•^* ■■■■'..'? V,.' •*'■ »,;^>s>^--: '■: ■ ■ ^■-■^, •■■■,.'..' V ^T'o^>^^^'•^' •r .'•■.•' y, .'-■■.. i'..,.'' -i *-.■■■. VrJ-*. ■ '. • ■'■.'•• \'.''.'^''» ," 'y ■:• '. '.r.'.' • :', -■,-:. v."!, **^ .• .ft*,'.' I'V. ... . . ^'< A": '■■'»■' ■•" ■ . • ■ -:> t, ■■.,1'' ■ .-J • * .^-' •■;■:•. -I- 264 GENERAL RULES. [Rs. 113-1 If.. im{>ro)x-rly joined may, at the instance of cither party, be struck out Ijy order of the Judge, on such terms as he shall think fit ; and tlu- cause shall j)roceed, as to set-off and other mattei-s, as if the jxu-ty oi- parties liable had been sued, and judgment may be given for the party improperly joined. Il*{. Where seveml persons are made defendants, and all of them have not heen served, (r) the name or names of the defendant or defendants who have not been served may, at the instance of either party, be struck out by order of the Judge, on such terms as he shall think fit ; and the cause shall then pi-oceed ag-ainst the party served as to set-off and other matters, as if all the defendants had been served. 114. Where the name or description of a defendant in a sum mons is insufficient or incorrect, and the defendant appears and objects to the description, it may l>e amended at the instance oi' either party, by order of the Judge, on such terms as he shall think fit ; and the cause may proceed, as to set-off and other nmttei-s, as if the name or description had been originally such as it appears, aftec the amendment has been made ; but if no such objection is taken, the cause may proceed, and in the judgment and all subsequent pnt ceedings founded thereon, the defendant shall be described in tht- same manner. 115. Wiiere a ^Tei-son, other thim the defendant, ajjpears. at tht^ hearing, and admits that he is the person whom the plaintiff intended to charge, his name may be substituted for that of the defendant, if the plaintiff consents; and thereupon the cause shall proceed as li' such peraon had been originally named in the summons, and, if necessaiy, the hetiring may be adjourned on such terms as the Judge shall think fit ; and the costs of the person originally named as defendant shall be in the discretion of the Judge. , 110. Where a party sues, or is sued in a representative character, but at the hearing it appears, that he ought to have sued or been Pryor v. If'. Ham,, Local Board of, 15 L. T. N. S. 250. "The name of a defeuil.ant can never be added at the trial, or at any time : " Roscoe's N. }'. 13th Ed. 304 ; Steimrd v. Moore, 9 U. C. L. J. 82. Under the late Rules of ( ^)urt in England, this amendment could probably be made in Superior Courts ; hre Wortleii, 4 Ch. D. 180; Fisher's Digest, 127. (rj See sectiou 77 and notes, and Rule 151. ''-yy\ ■;.{; wmmmmm Rs. 117-124.] GENERAL RULES. 205 sued in liis own right, the Judge may, at the instance of either party, and on such terms as ho Bhall think fit, amend tlie proceedings accordingly, and the case sliall then proceed in all respects, as to s(!t- off and other matters, as if the proper description of the i)arty had been given in the summons. 1 1 T. Where, at the hearing, a variance appears between the evidence and the matters stated in any of the proceeilings in a Division Court, such proceedings may, at the disci'etioi. of 'lie Judge, and on such terms as he shall think fit, be amended. 118. The Judge may at all times a»nend all defects and errors in any proceeding, whether the defect or error be that of tl»o party applying or not, and all such amendments may be made with or without costs, and on such terms as to the Judge seems fit. 110. In cases of amendment, a corresponding amendment shall be made bj- the Clerk, in the proceedings of the Court, antecedent to such amendnient; and the subsequent proceedings shall be in con- formity therewith. GENP]RAL RULES. 1^0. Claims by husband, in their own right, may be joined with claims in respect to which the wife must be joined as a party. 1^1, Where the Court gives leave to take any proceeding, such leave shall be minuted in the Procedure Book, but it shall not be necessary to draw \ip any order. Vi*ii. In cases where the hearing is by Jury, the Judge has the same power to nonsuit (s) as in ordinary cases. 12$, Under the 72nd section (t) of the Act, the leave to be granted for issuing a summons shall be by the Judge, befoi'e whom the action is to be ti'ied under the order; but no leave shall bo given to bring a suit in a Division other than the one adjacent to the Division, in which the party to be sued resides j but the Division may be in the same or an adjoining County. 1584. The Court has no jurisdiction to try an action upon a note of hand, whether brought by the payee or any other person, the con- sideration, or any part of the consideration, of which was any :..f t ■:■;■■: >'. I ■ :v i'vH'-ll ■>:^-t-,\. ■ ■•r...»->: A t ' ' .'■■ ■ * >L>, ■,;.•. r. , -. («) See section 81 and notes. (0 Now section 64. ■ I'm ..■'■' X''i\ ' •' ■ ■ .» ...■■■*'• s ■ * -. v-i- A ;v ■::./,jV^?.^,:-...: - . . *■ ■ ".■ ' • •» •• '. ■ . .:.ti«-.'>: ■> ; ■•. ;.■■•'••.■,•■•:■.•,,• ■ ■'.'> ■*i. ■'.I'-'-'y '"■*' ':.!.,• ■■■V," ■■>»•»*: ■' ■ "• '^w-.''- ■■'■ ■ 1 ';■<«.">»*' ^.■:V'?^'-:'v ■• "A,"-, ■■ .« f'-' >•■*■•_.(■,«■.■'. -3; '■ ■ ■ ■■■■• -V ■ >I '■ . t****-'!'* liiiC, op:neual lUJr.ES. [Rs. 12:)-1'27. j?.>nil)linj:f debt, or for spirituous or malt liquoi-s, or otlier liko liijuors, ilruuk iu a TaAcriior Alcsiiouse. (ii) PARTIKS TO LEAVE ADDRESS WITH CLEItK. I'J5, WluMuiVcr tlio pliiintifr, liis Attorney or agent, sliall enter liis ehiini for suit, or the defendant sliall give notice of set-oH' or dtlicr defence, he sliall give to the (Jlerk his address, or that of his Attorncv or agent, and the delivery of any notice to such plaintiff or defeiidiiiit, his Attorney or agent, oi- the inailing thereof l»y the (,'lerk to such .address, shall 1)0 a suHicient service, subject, however, to the right of the .Ju(lg(? to put off a trial, or to set aside or stay proceedings, on his being satisfied that the letter had either not reached the partv, or that there has not been sutfici(Mit time after service of the process for either jiarty to be prepared for trial, or to get the notices served. INFANTS. 1 1^0, Whore an infant ap[)Uos to enter a suit for any causes of action (other than for wages), (o) he shall procure the attendance of a next friend (w) at the oliice of the Clerk at the time of entering the same, who shall undertake to be resi)onsible for costs; and the cause shall ])roceod in the name of uhe infant by such next friend, but no order of the Court shall l)e necessary for the appointment of siicli next friend. If the- plaintiff fail in, or withdraw or discontinue iii.s suit, and do not pay the amount of costs awarded against him, pro- ceedings may be taken for the i-ecovery of such amount from the next friend, as for the recovery of any ordinary debt, (x) CONTINUANCE OF ACTION. 137i Ii^ order to prevent the operation of any statute whereby the time for the conimencenient of any action is or may be limited, (//) it shall be only necessary to issue the first process or summons ; and it shall in no case be necessary to serve, or to attem[)t to serve, the (({) See section 53, sub-section 3, and notes; Byles on Bills, 119, 131 and 139, 9th Ed. ( V ) See section HS. F (w) See lioh. & Jos. Digest, 1734; Arch. Pract., title, "Infants." For form of undertaking to pay costs, see Form 7. {x) The next friend must be summoned iu the ordinary course : Abraham-^ V. Taunton, 1 D. & L. 319. (?/) See Modes v. Smethurfit, 4 M. & W. 42 ; 6 M. & W. 351, s. c; but see Seaijram v. Knhjht, 3 L. J. N. S. at page 2Gl> ; 3 L. J. N. S. 317 ; see 7 wipa^pi ';. •■ IN. 128, 129.] OENEUAL nULEB. 267 siiiiKi, or to issue an alias ov jdnries or succossivo Hiiminons, or otlifr- wiso to do any act for the coiitimiauco of the action other than sorv- iiii,' the defendant with tlie process, and tlio process \\\w\\ served sliidl 1)0 a continuance of the action on and from the ihiy on wliicii till) first siiinnions or ])rocess issiu'd. Provided tliat no process shall issue aft(!r twelve months from the issue of the first [)rocess without the order of the Jud<.(e ; and the Judge shall make no such order after the lapse of oijLjht years from the time when the cause of iiotiou accrued, unless it be made to appear to him that service has not been effticted by reaso'i of the absence ot the defendant out of the Province. STATUTORY DEFENCE. 1*^8. In case the dciendaut desires to avail himself of the law of .sot-off, or of the Statute of Limitiitions, or of any defence \inder any other statute {;:;) having the force of law in this Pr(jvince, he shall, not less than six days before the day appointed for the trial, give notice thereof in writing to the ])laintifl[', or leave the same fur him at his usual place of abode, if living within the Division, or, if living without the Division, shall deliv(!r the same to the Clerk of the Court in which the action is to be tried ; and in case of set-ott" he shall dcdiver to the Clerk a copy of the piirticulars of such set-off, to lio ke[>t with the pa.])er3 in the cause, and also a copy for the plaintitr, if his usual j)lace of abode is not within the Division. And the Clerk sliall forthwith give to such plaintiff a notice of such set-otf, V)y mailing the same to him in a letter duly registered, addressed to his usual place of abode or business, according to the Form 102, sec. 4, together with one of the copies of the particulars of such set-ofi'. PAYMENT INTO COURT. 1^!). When the plaintiff shall, in accordance with the 88th or 91st .sections (.a) of the Act, signify to the Clerk his intention to proceed U. 0. L. J. 178-179; Curlewhy. iVonihi'ifon (Lord), 7 E. & B. '28.3; Petimf V. Jh-irc, 18 C. B. N. S. mm ; Roscoe's N. I'., K^tli Ed., G;W. The Statute of Limitations is to be computed oxohisively of the day <>u which the cause of aotion arose : JIardji v. liijlc, 9 B. «& (J. (50:{ ; Frci ihh)i v. Jt'ind, 4 B. & S. 174. A summons could l)e amended according to the true facts, though the oli'uct might be to defeat the Statute of Limitations (CurniKh v. lliii-ht», I H. & B. 002); but the true date couhl not be altered : Clarke v. iSm'Uli, 2 II. & N. 75:{. (z) See sections 92 and 1.36, and notes. (a) Now sections 87 and 90. i. ' • •K^ ■'• c ■■ ■ -cr . . iV '. ■r/ vt;v^< ■ ti. ■\J- •.v> ■■■■ \ ;'■ ■ *: 'C■;^■^■^^ ■ ■■' ';^'-': :r^' . ' -'^^.t rk -,• \: i^Q^ I. K . M.. ■ y > r. .-«;•••.• ...■:*.:/iVr.-, .•''.ft'.'- >.;Sv-: • ■,»-■. ' >■> -; •■"■'•'•"■■*•".■ . • ; ■ . .'^.f>.-v.: ■. ■ ■". '.■>.'■■' ■ ^ : . . •■■^ .< : ^■,, •'..• . . ■.-.■ -.t ■ ,.w?- ■•..' ■." ;•■.»■ 'i •■ •• •.■^-' V . .. '*^^ ■ Vv •f . f- .'*■■"• .'■• '• • '• • -Jit-.- -• • ■ ■ ■ , n.v*^^. .■-/ ..^^*;;•!J^;i•'^ ., > - .i»'-iv:. i, . •f•■^^^-■Nl•:;»i:., ' ;• i«' i--&>'.> .'. ' (it ■.•■,"'■ ' •. 2G8 ORNERAL RULES. [Rh. 130-132. for tho romaiiulorof his (Intnaiul, ami such Hi<j;iiifiouti()n shall he jifivcn within thr('(! days after ho rocoivod notiee of the payment into (Joint. but after the risin;^ of the (Jonrt at whieh the summons was i<?tmii ahl(!, the cas«! shall ho tried at the then n(!xt sittings of the (.'ouit. and be j)nt upon the list for that Court in the regular order. I (SO. In case of payment of montjy into Court under the 87tli or 9Uth sections (h) of tlu; Act, the same shall not be paid out to tlic ;)luiutiH' until the final determination of the suit, unless the .Jii(li.rc bhall otherwise order. CONFESSION BEFORE ACTION. Itil. Every confession or acknowledgment of debt taken before suit commenced (c) must shew therein, or by statenient theicto attach(Ml iit the time of the taking thereof, the particulars of the claiiii, for which it is given with the same fullness and certainty as would be required in proceedings by "Special Summons;" and unless application for judgment on such confession shall be made to the Judge, within three calendar months next after the same is taken, or at the sittings of the Court next after the expiration of such i»erio(l. no execution shall be issued on the judgment to be rendered, without an affidavit by the plaintiff" or his agent that the sum confessed, or some and what part thereof, remains justly due; and applications for judgment shall l)e made at a Court holden for the division wluiieiu the confession was taken. NOTICE OF ADMISSION OF PART. t^*i. With a view to save unnecessary expense in proof, the de- fendant or plaintiff shall be at liberty to give the opposite party a notice (Form 103) in writing, that he will admit, on the trial of the cause, any part of the claim or set-off, or any facts which would otherwise require proof; and after such notice given, the plaintiff or defendant shall not be allowed any expense, incurred for the pur[)OHe of such proof ; the notice to be served on the plaintiff or defendant. or left at his usaal place of abode, at least six days before the day appointed for the trial or hearing. {b) Now the SGth and 89th sections, (c) See section 152 and notes. ,,:S;.,;;» «pp ]U 133-137.] OKNpnAT, ntri.Efl, 2fi9 AFFIDAVITS AND OATHS, ilVa, Every iiflRdavit, in any procccKliii*^ in tlio Court, must ne fi»titl(Ml in tlio Court and causn, (d) (if a causr 'ms been coninicucod), stiitinj; tli(! diristian and Hurnanif; of tlu; partioH as in tin; sninnion.s, and also tlnit ofj^lio^drponc^it, and iiijs_[)laco of al)i)d(! and addition; and if an artidavit bo sworn hy an illiterate porson, the jurat must contain a certificato of the Clavk or coniini«Hioner adniiniKteriiij; the oatii, that the artidavit was I'cad in his presence to tlie party niakin;,' tlio same, and that such party seemed perfectly to understand it ; and thero HJiidl bo no erasure or interlineations in any jurat; but tlie Jutlge shall not bo bound to reject, as insurticiont, any artidavit not com- |(lying with the above rerpiisitos, or any of them, but may, in hiH (liscretion, (e) receive the same. 1114. Oaths and aftirmations administered to witnesses in open (!ourt, or upon any viua voce examination i)efore the Juilge, and to jurors and others, may be in the forms prescribec?. STAMPS. i:{5. Rescinded by Rule of 2Gth Juno, 1874. UUl. Rescinded by Rule of 2Gth June, 1874. . .' |» ■ INSPECTION OF DOCUMENTS, 131. When, in any action, the defendant is desirous of inspecting any deed, (/) bond, or other instrument or writing, in which he has (d) See Arch. Prac. 1612, 12th Ed,, title, "Affidavits ;" Lu«h's Pract. 872, ft .seq. ; Rob. & Jos. Digest, .'55, et sai. ; KhK/horii ami ffie Vorporation of KUmdon, 20 U. C. K. 130 ; Hood v. VronkrUe, 4 P. U. 279 ; « U. C. L. J. 165. if tile words " make oath and " are omitted, the affidavit cannot l)e read : Allen ■;. Tai/lor, L. R. 10 Eq. 52. Wliere a judgment was entered without the pmiter affidavit to warrant it, it was field a mere irregularity, and the affidavit was allowed to be tiled afterwards : Potter v. Firkle, 2 P. R, 3D1. As to the atlidavit of a person in an asylum, see S/iittle v. Wdlton, L. R. 11 Eq. 420. "7/ iiuli'cd tlwre hod been a caune in Court, and tlir affidurU luul omitted to vame it, that luould he had, because no perjurr/ could then he. ansijpip/l on the affidavit :^' ]ier Richards, C. J., in In re Burrowes, 18 C. P. at page 502 ; Bee also section 76 and notes. (( ) It is submitted that the proper course is for the Judge to compel the (!lerks to observe the rule of Court. Should the Clerk act upon affidavits not according to this rule, without the Judge liaving " in his discretion " received the same, it is submitted that the proceedings would be irregular : see notes t(» section 76. (/) For the cases on inspection of documents under this rule, see Fisher's Digest, 3726, 9487; Law Reports Digest, 2135; Hob. & Jos. Digest, 1334, w seq.; Arch. Pract. I2th Ed. 1436. ■ ..J^■.•.. i '. :^r-li- ;'/;•■■ ^v*?': I*' iV ►v •>;'. -^^r V. -V .. ■■•• ■•■ ; ■'- ',•/•■■ " ■ ' ..:-.;'t;''v.-.:'. .>,■ . . 1 ' ^y.v-.^'^; ,;^:^-^^:: 270 GENERAL RULES. [Rs. 138-141. an interest, and which shall be in the possession, power, or control of the plaintiff, lie may, witliin four days from the day of the servicer of the summons, give notice to the plaintiff by prepaid and registered post letter or otherwise, that he desires to ins})ect such instrmni'iit, at any place to be appointed by the plaintiff, within the division in which the suit is brouglit ; and the plaintiff shall appoint a place accordingly ; but if the plaintiff neglects or refuses to apjjoiut such place, or to allow the defendant or his agent to inspect it within three days from the day of receiving such notice, the Judge may, in his discretion, on the day of hearing, adjourn the cause for the purpose; of such inspection, and make such order as to costs as Le shall think fit. DISCONTINUANCE. 1158. If tiie plaintiff be desirous of not proceeding in tlie cause, lie shall serve a notice thereof, as provided, resi)ecting the service of a notice of set-off and pay the defendant's taxable costs (if any), and after recei])t of such notice, the defendant shall not be entitled tu any further costs than those incurred up to the receipt of such notice. unless the Judge shad otherwise order ; but if the plaintiff fails to give such notice and pay such costs, (y) and does not proceed to trial. the suit may be treated as still pending, and the df^fendant wi.l be entitled to his costs, as in ordinary cases of nonsuit or of default by plaintiff. ADJOURNMENT OF SUIT. 1I5JK Where a cause is adjourned, no order of adjournment shall be served on either party, except by dii-ection of the Judge. 140. When anything required by the practice of the Court to be done by either party, before or during the hearing, has not been done, the Judge may, in his discretion and on such terms as he shall think fit, adjourn (h) the hearing to enable the party to comply with the practice. PUTTING OFF TRIAL. 141, Eitlier party to an action may apply to the Judge, in writing. and as required by Rule 144, at any time before the hearing, for an order to put off the trial (h) on account of the absence of a material {(j) Many people appear to have an idea that they can withdraw a suit at any time. They can only do so upon giving notice six clear days l)cfore Court (section 92), and paying costs. Should either or both of these not be done, it would be the duty of the Clerk to put the Buit on the liat for trial. (h) See notes to section 83. ■ « r.-.r - ^ .-; ' ■■ - • ,■ t . mi s. 138-141. irnment sluill 11. 142.] GENERAL RULES. 271 witness (whose name should be stated), or other sufficient grounds, to be disclosed on affidavit, and the Judge, in granting or refusing the application, may order the payment of costs, or impose such terms as he thinks fit. NEW TKIAL. 14'}. Application for new trial (/) may be made vii'ci voce, and determined on the day of liearing, if both parties b(> present ; but if made when Ijoth parties are not present, it shall be in wi'iting, and show briefly the grounds on which it is made, which grounds, if matters of fact requiring proof, shall be sui)ported by affidavit. (a) A copy of the application and of every such affidavit shall be served by the party making the same on the opposite party or his agent, or left at his usual place of abode or business, if within the division ; or, if without the division, then with the Clerk, who shall forthwith transmit the same forthwith to the opposite pr.rty. (h) The application and aflidavits (if any) together with an affidavit of the; service thereof, shall be delivered to the Clei'k, within fourteen days after the da} of trial, to be by him, on receiving the fees and necessary postage, transmitted to the Judge, with a, copy of the original claim, and other papers requisite to the proper understanding of the case, which delivery to the Clerk shall operate as a stay of proceedings, until the Judge's final decision on the application is communicated to the Clerk. (c) The Judge, after receiving such papers, shall delay for six days deciding upon the application, to enable the opposite party to answer the sain<i in writing or by affidavit, if facts stated by the applicant in his affida 'it are disputed; and the decision of the Judge (Form 76) shall be traismitted to the Clerk by mail, who shall, if a new trial be ordered, notify the parties thereof by mail or otherwise, and the suit shall be tried at the next sittings of the Court, unless the Judge shall otherwise order. (See Form 101.) (d) If the application be refused, or if the party applying shall fail to comply with the terms imposed by the Judge, the proceedings in the suit shall be continued, as if no such application had been made. The Judge, instead of deciding the same, may hear the parties on the matter of such appjication, at the next sittings of the Court, or (i) See section 107 and notes thereto. ^^iPiPi^ .:...f t ■■™V*'v' 4. ■'i : ':■ ''^^\fiKfv..\ %--v; ':.. ^!"*i'l '"■'■'to .-''■■■•. :;-,•. ;-.r.r;..,^:.:, I ■<■ ..•■•'v'--v-Ai./'-' ..Vii ■. ■ '. '-^ .' i;:^'-' I' ■■ ■'.?•-,'■';?.■'',-:'■■ . ; ' I' ' . .-■ '-"r^'TrV': •■ : ■,-' j; .?>.••:■' :i- '■ '.■> ^-r ',-. •■'V . ■■■ , • . .nf* -r •> v - • " ' .: '^'- " -, ' :>•■ ■•■-.> f. . ;■ .. . /-■'■"•4 :*- U *" .' . ■ .-•■^;- •'.v-' ■ ./i->;.- '■■■■: " . .1 >*» ■". . ' t ■ * ; , V •. •>«■' ■ '-v " . ? j^ ' <■ ■.■»»,"-^*''-'".'l '•fy •■ •'•'■■■.'••.■•' ,•' , .;■■;'"■"•. '.^'i'' . ( ) ■ ■'•• "^ V';*''-" ' .' '• ' * »' A.:;^^'fy^ 1 , ■:■" -■'■^'I'ii' V. ■ . ■•-..,• fA-V^'^. * *>■. ■ ■■■*'.■.-.•■■ ■• ' ■ Y •;• ^'!' ,.^ ■•..'-v/«,^ , ■ V . >. ■ .V*;"'!'.' i'' . ; ■'^■,:.i:-2-;i.- .■;; ' .. ., ■■•■;\^^:-.: ■• ^^-< ;H' 'V *, *4'i' ;. 1, & '■' .-' <r%^ {•>'-: ^'"^ M-^O' 1-- , <•-* "V -?^^-;; I , ^ * ,1 •« - - " .i . •c ■ ■ -. 4 .. :,^VV^;. -•;)■•■. , ^_. j» l • ■ ' ,' . ■ ■'■'■ . ,' ■• 'i r.i r\:;: ■iV.. 5-5 GENERAL RULES. [Ks. 143, U4. at such other time and place as he may appoint, whicli decision shall be sent to the Clerk, aad be by liim comiminicated to the parties in like manner. (e) The Judgo may in his discretion make it a condition of grantiiirr a new trial, that it shall take place before a jury, whether the first trial took place before a jury or not; but if either party required a jury to try the case in the first instance, he shall be entitled to another jury on depositing the necessary fees for summoning such jury ; and in such case the order for the new trial shall direct the summoning of a jury. (See Form 101.) if) Where, under the lOGth section of the Act, judgment in writing is delivered at the Clerk's office, application for a new trial may bo made within fourteen days from the day of delivering such judgment. SETTING ASIDE OR STAYING PROCEEDINGS. 143. The Judge may, in any case, refuse to set aside or to hold void any of the pi'oceedings, on accoinit of any in*egularity or defect therein, (_/) which shall not, in his opinion, be such as to interfere with the just trial and adjudication of the case upon the merits; and may at all times amend all defects and errors in any proceeding, whether the defect or error be that of the party applying or not, and all such amendments may be made with or without costs, and on such terms as to the Judge seems fit. 144. All applications (k) to the Judge to set aside or stay any order, judgment, process or proceeding in any cause or matter in a 'Division Court, and all other applications, except in matters which may be disposed of upon an ex parte application to the Judge, and applications otherwise specially pi'ovided for by these Rules, may be made viva voce at any sitting of the Court, if both parties be present, or upon affidavit, the opposite party having notice of such application and of the grounds thereof and the order or decision of the Judge upon such application, if made at a sitting of the Court, shall be entered by the Clerk as in other cases of order made ; if made upon affidavit elsewhere it shall be mailed to the Clerk by the party (j) See Har. C. L. P. Act, 321. (k) See section 107 and Rule 142, and notes thereto. ■■■ .;^.:/^f.■".H'J^^;.■> Rs. 145-149.] GENERAL RULES. 273 P ■ obtaining the same, and the Judge may enlarge the motion foi* fmthpr iitHdavits or evidence to such time and ])lace as he may chocse, or on such terms as lie thinks tit. POSTAGE AND REGISTRATION OF LETTERS. 145, All letters enclosing any papers in a cause sent from one Division Court officer to another, or to a })arty to a suit, or to the Judge^ and all necessary notices sent by the Clerk, shall be prei)aid and rogistered ; and the costs of such postage and registi-ation shall be rosts in the cause. COST OF APPEALS FROM COURT OF REVISION. 14C. Rescinded by Rule of 2Gth June, 1874. WITNESS fep:s. 141. The Clerk shall determine (subject to appeal to the Judge) wbat number of witnesses shall bo allowed on taxation of costs ; (/) the allowance for whose attendance shall be according to the scale, (Form 3), unless otherwise ordered ; but in no case to exceed such scale, except the witness attends under subpuana from the Superior Courts; and, before allowing disbursements to witnesses, tlie Clerk shall be satisfied that the witnesses attendeil, and that the claim foi- fees is just; and if a witness attends two or more trials the fees shall be apportioned between the diilerent causes. AS TO UNAUTHORIZED FORMS AND PROCEEDINGS. 148. All proceedings, books, .and documents shall l)e in forms similar to the forms to these Rules appended, where the same are applicable, and no printed forms shall be used by any Clerk or Bailiff of a Division Court unless first approved by the Judge, in writing, as being in accordance with the forms appended to these Rules, and if an authorized (//) form shall be used no fee shall be payable to the officer in respect thereto, and in cases where no forms are pro- vided, parties shall frame the proceedings or documents, using ;i.s guides those appended to these Rules. JUDGMENTS. 14.1. Every judgment, order, and decree of the Court, shall be ( / ) See sectious 38, 95 .and 98, and notes thereto. Form 1 12 jvnd notes. (//) Evidently intended by the fraiuers of these Rules for " unauthorized." 18 ■ ■■ v...f t .u* ■ i . V ■ '1 j^>i^': "■' ■ JS ,rfc • "•■• i 4-: II mSk »■;'■ ■ '■ i •-.■■:,>*''^'j*. '■' . ,. ■■■^ l::^^'' ■^,--}- '■.■V^;-V<v.-: f • ■>,. , ,•" -■ > ,.,' . ■ ■:';'..,V^r/ .,!,"- • ' ' ■'■i -i'-'X ;•■-.• V'^•^^:^■-^.^.v■ : -." ,» .v-' .• '»/, . 1 ■ . ■ » .•»■. • ■, . r .'•'■"■ .i'^.l '<' ; >'-«>v/;"',-;;, ■- •-;^^::•i'.v;^y- ^ ■■-•. y-.^'V-'v.v' ■. 1- ,',. V •.■■><. .,■■. • ■ • ,•.■> • ,J' ■■ ,..■■'•..'«'■;•■■.•.■ ■•■' ; ..^-:';^:iV>.-'. ■< •.•^.-•••■.,v. ..'i ■.. . ■ /' ■■■ ..sv- >4 :.•?■: ' ' ■:■■ K.^.>'^' e^-^ ■ ■ :..vft'.;^i.v..'. :■ ; , ■. .-.••v ..'..•. -.^ ■ _." ■'.■> •- ':■: ;;> .■ ,.:' ■;'j:V:-.;*-^- , ■-. ■ ■ •■ y.fi .' ■*.. * ■ - .t (', .' ■•.. *. '. ', • ■. . .V..'- -'■ .. • 1 ■. • •■ ■* ■ ■, •'.,■. ..v'-:;<'^:Vi:.:- . ■ ■ , '.' .-•'•■■'•,'; ■ ■■ ■■■!'^:./''.' '■ 3 ■■■•',."•■• ■<»■•: . .•s>-:-vr'-. ■■ -l-'^^.^^^r:': ' ■ V.:v.v;,:v ■ ■. , ■ A^v-c^v : .^».-'^-.. .' • . ■ ^ ■:.■ .-^ > .- •.:■•;. .-. '■ -,*%"■■..■ I " ; . y ;.>>i ' ' ., .-.-„".i:'*5.-'N'.i. ^.V •r -v".'.-'. ' ;•! ■; . ,..>■■ v,^':;r. ■»: ■-^'•■ '.v>'> '■; •i::;^:^?V^-.!-'' '■'■■■:m:->^ ■ ■•■•!«'*;-'.■-■' •\ ■ ■■ 'i'r .■ • ■ • *• VA f* ■ ■ . ■, ■. . ; ..: V ;;•;>:■;. ■.■;,: . 0'. ' : - ■■ ** »■ ' . - . ,-i^ •'■»»■• v.". . -* ■ ■ ' t . '4 .* . " ■ ' ' •. fci ■ : - ■ •' ,'': r»:-s>>;-. ■'> ■ ■ " • *■ *'•; • '."i*".; i'/- ' *^ .;;»^"^ ;'•'?;•» *',. * "■' *' ^/JjJ^^y :',;:... .ii.*'^^^ ; . * * 1 ' f ' . ' ■ '■••■- ' * ■' . '■'. V -^'rr''".-. ;<■■. ^.1. .•■?.■.■:■|>^^•!^; ,.' 274 GENERAL RULES. [Rs. 150 154. entered (m) by the Clerk in the Procedure Book, according to tho Forms 45 to 75 inclusive, or to the like effect ; and -when any order is made for the payment of any debt, damages, costs, or other sum of money, the same shall be payable at the office of the Clerk, at thft expiration of fifteen days from the rendering of judgment, unless the Judge otherwise orders, but where judgment is signed by the Clerk under section 2 of the Act of 1809, execution may issue forthwith. 150. After an award is made and filed (with an affidavit of the due execution thereof) under the 109th, 1 10th, and 111th (n) sections of the Act, the duty of the Clerk is, forthwith to enter the jiulgment on such award, and issue execution thereon, at the request (o) of the party entitled to such execution, without any order from the Judge. 151. Where a plaintiff avails himself of the provisions of section 81 (p) of the Act, and proceeds against only one or more of several persons jointly liable, the defendant siied may avail himself of any set-off or other defence to which he would be entitled if all the per sons liabls were made defendants. 15!i. When judgment is given for the defendant on a set-off he will be entitled to issue execution and to take proceedings as in ordinary cases for the recovery of the balance of his set-off which exceeds the plaintiff's claim, if such balance does not exceed $100, or the defendant is willing to abandon the excess over $100. ABATEMENT. 15*{. Where one or more of several plaintiffs or defendants shall die before judgment, the suit shall not abate (5^) if the cause of action survive (?•) to or against the surviving parties. 154, When one or more of several plaintiffs or defendants shall die after judgment, proceedings thereon may be taken by the survivors or survivor, or against the survivors or survivor, without leave of the Court. {m) The record is not complete without the entry; Struttonv. Johnson, 7 li. C. G. 141 ; see notes to section 7. {n) Now sections 147, 148 and 149. (0) See notes to section 156. (p) Now section 77; see also Rule 113. (q) See Arch. Pract. 15U9, 12th Ed., chapter XXXIV.; Lush's Pract. 59. (r) See Caweron v. Milloji, 22 C. P. 331, and cases there cited ; Hemming V. Batchelor, L. R, 10 Ex, 54 ; Kramer v. Waymark, L, R. 1 Ex. 241, ;:*«•;•• Ife. 155-159.1 GENERAL RULES. 275 REVIVING JUDGMENTS, &c. 1*>5. During the lives of the parties to a judgment, or of any of them, execution or otlier process may be issued at any time within six years from the recovery of the judgment, without a revival (n) thereof. 150. No execution or other process shall, without leave of the Judge, issue on a judgment more than six years old, xniloss some pay- ment has been made thei'eon within twelve months previously ; but no notice to the defendant, previously to applying for such leave, shall be necessary, and such leave shall be expressed on the execution or warrant, or summons in the words, " Issued by leaiK of the Judge." IS'X. In case it becomes necessaiy to revive a judgment, by reason of a change by death, or otherwise, of the parties entitled or liable to execution, the party alleging himself to be entitled to execution may ane out a summons (Forms 30, 33) for the revival of the judgment, and issue an execut"'^ thereupon. In case it shall appear, upon such application, that the party making the same is entitled to execution, the Judge shall order execution to issue accordingly, and shall also order whether or not the costs of such application shall be paid to the party making the same ; and in case it shall not so appear, the Judge shall discharge or dismiss the summons with or without costs. 158. The renewal of all writs of execution may be made from time to time, before the expiration thereof, by the Clerk of the Court issuing the same, by marking on the margin of the writ a memoran- dum to the following effect : — " Renewed for 30 days from the date hereof." Dated day of 18 . X. Y., Clerk. SUITORS' MONEYS : HOW PAYABLE. 150. It is the duty of parties entitled to moneys collected by officers of the Court to direct how the same are to be transmitted to them. The Clerk shall not be bound to transmit by post any such (s) See Arch Pract. 12th Ed. 1122, eC seq. ; Lush's Pract. 59, 140, 577; Rob. & Jos. Digest, title, "Scire Facias and Revivor;" Har. 0. L. P. Act; see page (in index) 8.31, and sections there referred to; Nolt v. Tfie Mayor of Oravesend, 7 C. B. 777 ; Turner v. PaUerson, 13 C. P. 412 ; John- alon et al. v. McKenna, 3 P. R. 229. ■:"**vv*<;u ■ h, kT •.■■, . . I ■''■'■'• !. .■■ ;■ r, k;,t- ■■'♦ •/"••il- >vf ■. ...^.. -rv^^^iy,f-'' ■::,.>-;;-AV,;-.-;t.; . .;.■>..•.;■ -y ■ . '.> *'.. ":■:'■■■'. ■ ■ • J* -■''■■ ■ -- ■ . - \ V V .' » .• ■ • • ."• * . ', . ■•-.■.■ ;v^ ■■"!: .'■•; • ■••• l-fJ,^ ,;■■ ■,,' i>«: 'i.; ;^::^:^>- ■■' »",'"*. i ■* .. '-f ', \ 276 GENERAL RULES. [Es. 160, 161. inmioys, nor to procure and tninsmit post office ordore therefor, (except upon the request and at the expei'S(5 of the party entitled thensto ; without sucli direction and request, all moneys are payable to the ]>arti(^s at the office of the Clerk without the piiyment of anv fee whatever ; in no case is the Clerk to transmit moneys to tlie (Jleik of another Court without the written order of the party entitled thereto, or his authorized agent. TRANSCRIPTS OF JUDGMENT. 100. Every transcript of a judgment for a County Court shall be prei>ared by the Clerk upon a full sheet of foolscap paper, folded to the usual size of judgiient rolls in the Courts of Record, carefully written in a plain hiuul or printed without contractions of words or figures, and shall be according to the Form 99, and if a judgment has been revived the order of revival or its pur[;ort shall be set forth therein. 101. When upon the application of any plaintitf or defendant having an unsatisfied judgment in his favor, a transcript of the entry of such judgment, under the 139th (t) sec, or a transcript of the judgment under the 142nd («) sec. of the Act is issued from the Court in which the judgment has been recovered, an entry thereof shall be made by the Clerk in the Procedure Book, and no further jjroceedings (v) shall be had in the said Court upon the said judg- ment without an order from the Judge. (f) Now the Kilst section (h) Now the l()5th sec; see 6 U. C. L. J. 84. (/-") It is to be observed that there is a great difference in effect between the IBlst and IGoth sections of the Act. Under the former section a transcrii)t from one Division Court to another does not destroy the jinlginent of the h!>m(^ Court, nor entirely remove it to the Court to which a transcript may he sent. The proceeding by transcript under section 161 is collateral to (SalUr V. McLi'oil, 10 U. C'. L. J. 299), but suspensive of the original judgment. After pointing out the procedure to be ol)serve(l by the two Clerks, the section declares that "all proceedings may be taken for the enforcing and collecting the judgment in such last mentioned Division Court " that is in the Court in which the transcript is entered ; but tlie transcript to the County Court, uixler the lOoth section, is, by the lOtith section, declared to be, ivhcn /i/cd (uul futereil, a judgment of such County Cimrt. It is submitted that there cannot be two judgments, (me in the Division Court and the other in the County Court, subsisting at the same time for the same debt. The general opinion appears to be, that on transference of the case to the County Court, the Divi- sion Court judgment has ceased to exist, and that nothing can be done upon it. In this view we concur. Should the supposed judgment in the County Court be a void proceeding, such as was held in Farr v. Robinn, 12 C. P. 35, and wmm Rs. 162-1 67. J OENKUAL UULES. 277 '-»« collecting Court in irt, umler ///(■(/ (llld i-e cannot c Oonnty nl opinion the Divi- upon it. ity (%)urt . 35, anil 10/S. No transcript or co|)y of a judgment shall be issued or acted upon under the 137th or 13!)th (w) sections of the Act where the proceedings have abated, or in a case where no Warrant of Execution or Judgment Sunuu(ms shall have issued on a judgment more than «ix years old, unless such judgment sliall have been revived. 16S. The entries of proceedings on a transcript, under the 139th ^:ection (,«) of the Act, may be made in the Procedure Book, in the ibrm of an ordinary suit, as near as may be. And the Procedure Book shall, for that purpose, be the transcri[)t of Judgment Book required by the Act. OFFICERS' FP:ES. 104. The fees set forth in the tariff, marked " Schedule of Clerka' Fees " {Form 1) and " Schedule of Bailiff's Fees" (Form 2), shall be the fees to be received by the several Clerks and Bailiffs of l.)ivision <^ourts on and after the day that tlu^e Rules shall come into force, for and in relation to the duties and services to be performed by them ;is officers of the said Courts, and shall be in lieu of all other fees llieretofore receivable for the same proceedings. 105. So fixr as apjtlicable, these Rules shall extend and ap[)ly to the Judicial District of Algonia, and to the District of Muskoka, and the several Courts established, or to be established therein, and to S'he proceedings in such Courts. 100. The regular meeting of the Board shall be at the City of Toronto on the third Monday in June annually. 101. Rescinded 26th June, 1874. (See Rule 168). Jacomh v. Ile.nrij, \?> C. P. 377; Hope v. O raves, 14 C. P, 393; or be set .'iside or vacated, then the Clerk could piopcrly be directed hj-^ order under this section to proceed in the cause in the IJivisiou Court. So also if a tran- sscript under the IGlst section should be sent to a Division Court Clerk at a distance, and it be lost, or never reach its destination, or should the (.'lerk of the " h(jme " Court be unable to (tbtain any return to the transcript, either through the negligence or connivance of the Clerk of the outer Court, with the debtor or otherwise, then, it is submitted, the Judge would, on these facta l»eiug made known to him, grant an order under this rule allowing proceedings to be taken in the Court in which the judgment was recovered. A pretty strong case should be made out so that the defendant would have no reason to complain of being harrassed ))y proceedings in two Courts at the same time for the same cause. The plaintitf would labor under the dilticulty of attempting ti enforce a judgment that might have been wholly or partially satisfied in the proceedings in the outer Division ; Dewar v. Carriqiie, 14 C. P. 137. (w) Now the loiJth and 1(5 1st sections. (x) Now the IGlst section. »r'- * - ■ A» t'.ttf ..■■^■ ' 'I .:.'i.K^ '■-'•■ •J ■••r-i*' LV.V- ' -,**.'» . "-J'H^-- ... *■•»•'. i** ' . )' ■■ • ■.. W'* '"K •> ■ ' ( ..■.»"*'. • •. :■■:•.. H -^v^^i. '„..,• .■ -,.:-c* ^,•.:^;.^-- » I. . i . . * > • .. i ;■ ■ ■]u,y^^ ■K- ■ ' :- ■ >7 ■ •■ « .;•%,'.■■■.■ ''•^ '• ' ■■. ■ ■■..'> ,*■< .1- •■>•■ v-^^'t^«,"- .i ■ -.r %r.\'^ A • \ ■"■• ^".v:;^-^ ^ , • St '.v..'. ■■■,*■: •.1 VV.-'t;; .:• 'U'.- '''i,:uh'ii=^r - .'■'''y '■"■,■'.' ■■'■. ' .- .•'•;•/ ■•'.■.■ .. ■ ■^. ^'i '•>.-■•■■' ■■ ..■•^>^..-«^./. t, • »*■..- i .-; '■'' w-^ ' ■ "\ »;** • f" .■:■'•;;;>• ..';.c-; -''.:: ii^-^.:' , V ■?v:--:^--.v^;',; U' ;/i:;'^:'?":^^f".:; -.*'••. % • . * . . ' ' ■ ■..■■(. ./■'^ ■■■>'•• v.- .1 ■ •?•.-,■■>,;,■■■;!•,■■• ■ .-'■:. ■.^'•'.,~ '\- . ft".' ■ •T .l;'-->.-t.V-V- ■ ' ■ ^:^::^\-\ • .** ■ ■:• . * Jr. • |.. iMf ^;. y^<»^-vi. ^^■ I •■;,''■.•' •■'■■ •, ■ *•* ■ * • . ^ 278 GENERAL RULES. [Rs. 168-170. The following aro Supplemontary Rules made on the 26th Juik*, 1874 :— liule No. 168. — "Whereas by the ninetieth (now part of the 238th section of the D. C. Act) section of the said " The Administnitioii of Justice Act, 1874," it is provided that no fees or charges shall be pjvyable foi- the benefit of the Crown upon any pi-occeding had in any Division Court ; Tlierofore from and after the first day of Jnly, A.D. 1874, Rnles numbered 135, 136, and 146 of the SJiid General Rules of the first day of July, 1869, and the Supplementary Rule numbered 167 of 3rd September, 1869, shall be rescinded; and the following Rules in the said General Rules of 1st July, 1869, shall be amended, as fol- lows, viz. : — Rule numbered 91, the word "five" in the last part thereof shall! be struck out, and the word " fifteen " inserted in lieu thereof. Rule numbered 138, the last twenty-three words shall be struck out. Rule numlxjred 139, all after the woi"d "judge" in the second line thereof shall be struck out. Rule numbered 142 (h), the woixls "and stamj>s" shall be struck out Rule No. 169. — From and after the said first day of July, 1874, so much of Form numbered 114, or any other form attached to the said Rules of 1st July, 1869, as indicates or refers to stamps for fee.* payable to the Fee Fund on proceedings had in the said Cburts, shal! be rescinded and cease to be used. Rule No. 170. — The fees set forth in th« Tariff hereunto annexed, marked " Schedule of Clerks' Fees " (Form 127,) and " Schedulc- of Bidliffs' Fees" (Form 128,) shall, from and after tl>e first day of July, A.D, 1874, be the fees to be i^eceived by the seveml Clerks and Bailiffs of Division Courts in Ontario, for and in relation to the duties and services to be {)erformed by them as officers of the SiU(8 Courts, and shall be in lieu of all other fees heretofore i-eceivable for the same proceetlings. D.-.rED Toronto, Ist July, ISCft. Approved: WM. B. RICHARDS, C. J. JOHN H. HAGARTY, C. J. C. P. ADAM WILSON, J. JOHN W. GWYNNE, J. THOMAS QALT. JL JAS. ROBERT GOWAN. S. J. JONES, D J. HUGHES, JAMES DANIELL, JAS. SMITH- I, !'■ ■ \ ..■■'•.•■ ■,;• ■t.4 ■'•■*. " ■'. ■jil . ^ *.**'■■ V ■« . ■ v:. • FOEMS. (2.) SCHEDULE OF BAILIFFS' FEES. (6) ■;> (L) SCHEDULE OF CLl]RKS' FEES, (a) (3.) ALLOWANCE TO WITNESSES. Attendance per day in Court 75 cts. Travelling expenses, per mile, one way 10 cts. N.B. — If a witness travels by railway or other public conveyance, he may only be allowed (besides the per diem allowance) instead of mileage the ordinary fare, and anything he is obliged to pay besides, owing to delays caused by casualities, but in no case to exceed what the mileage would be if that mode of calculation were adopted. ..■..■■- ''■■' "I PEES TO JURORS AND APPRAISERS ALLOWED BY THE ACT. TO JURORS. Each juror sworn in any cause, out of the money deposited with the Clerk for jurors' fees, 10 cts. TO APPRAISER.S. Fees of Appraisers of Goods, tfcc, seized under Warrant of Attachment. To each Appraiser, 50 cts. per day during the time actually employed in appraising goods, to be paid in the first instance by plaintifi", and allowed in the costs of the cause. '^:": (a) See Form 127, (&) See Form 128. .<■ ---lA--''.*' ■ ■•>./k^if■■^•;••■ ■ .v.fc ,♦ ■ .,1 • .' ,, ■»».■,■ ■'•'".' ■»■ . ■«■-'.;» ■ •' ,■ ••■ • •• •■•'■. .'»■■,■ ', .'■ ■•. ;• »-•'■■ *'• ■ '-. ' '' • it, ', '. . '■■ " . ■-vk>'* •■■■ > V- 'iv?^^^--'^- •■■■'■■ ■... vf. ■ V, l-f..; . ■ ■ ;:' ■■:^^-..-<^' > />' • ".f* -ij':*.'.'". " -i .... -k, ;• ^. , v^ ;. , - •■« l/*.r ' '/~ , ■ . ■ ^,.■> '^^':^/: i. ']'/■■ ■ ■■: V^^V-'«•^- ■■'■■■■•■■'■ ■■■■ .-■■. r. < ..-■ ■ ' V 280 No. 400. A. D. 1869. FOUMS. (4.) PROOKDUIIK BOOK. Division Court in tli(^ County of A , Ensuing Sittings, 2(itli Octoiiur, 1869. X Y , Clctk. .Iamks Bird, of till' Town-sliip of Thomas Fish, of the Village of . 18()0. 1st Oct. iind " 8tli " l.-ith " ITtli " 17th " IStll 20tli 25tli |{('((>iv<'(I, jmiticnliirs in diitiiil, of uluini for $lli, iilaintiif )>ai(} B\ towarils ( o.sln. Issiu'il .Sjicci,!! SiiMiiiions 1(1 liailitr, "usts S^ , hcsiiles niilyugo. Siiiiiiuniis itliiiiuMi, served tltli (' t., 5 miles travel. Wrote plaintill' that no delenef j ,;i in. I'laliitiir writes ie(iiiestini,' .liid),'iMi'iit to lie .sii;iu,'il and (.xoention issMeil. Jlldjjiiient siL,'iied l>y (Jlcik, "The delendaiit having Kmmi .served witli S'lmial " SiiiJiiiions and |iarlieiilars of claiiii ami not disputing' .si^ine, it isudjudic ,| " tliat the ulaintill' ri'envtr $12 for debt, and .§ costs." Issued exeeiition to HaililT. UailUr returneii executiim "fee.!," and paid amount § to Clerk same day ; wrote lil.'iiiitiirinroriiiiiij; liiiii thereof. Paid idaiutiir$12 debt, uiid gl deiiosit, in full. No. 401. A.U. 1869. John Wiiitr, of the Township of Thomas Green, of Hk! ViJlap;!^ ofU :<rd Oct. 4tli 11th " nth " 14th •' 26th " 28th " 31st " Re(^eived particulars of claim (for tort) for $2.5 ; plaintiff paid $4 on oost.s, ,iii.l directed two siihpo-iias, aii(l jj.ive noti( e of Jury. Issued ordinary suniiiioiis and .sent by jio.st (pre])aid and registered) to Clerl< oj Division Court of U ■ for service. SuiMiiioiis retiirued, served Sth Oct. ; foreign foes, $ Issued Jury Summons and subpieiias to liaililf. Jury Summonses returned served, 10 uiilus; subpoenas also served, six wiles travel. Cause tried, " Judgment for plaintifT on verdict by Jury for $1.5 and $ costs, to be ])aiil ill 1.5 days." §1.00 allowed jilaintilf for witnesses. Defendant jiaid Clerk S1.5 d.i mages, and $ costs in full ; same day notifiid lilaintilf of payment, by i>ost. Paid plaintill $15 damages, §4 dejwsit and $4 witness fees in fulJL No. 402. A.D. 1869. -, Primary Creditor. Jamks Jones, of the Township of — Tiio.MAS Clakk, of the Town of- -, Primary Debtor, and GEoRoii Goon, of the same place. Garnishee. Sth Oct Sth «( 10th If nth l( 12th it i;uh tl 15th (( 26th (< 6th Nov. Received of Prim. Creditor, ]iarticnlars of claim (not in detail) on contract for 850, and memo, of debt owing by (jarnishee of $ ; deposit of $4.50 paid. Issued Garnishee Summons against Prim. Debtor, and Garnishee to liaililf. Summons returned siU'Vedon Prim. Debtor 7tli October, and on Garnishee on «tti Oct. 12 miles travel; Prim. Debtor liled set-otf (2 copies). Mailed to Prim. Creditor (prepaid and registered) copy of set-otf and notice. Issued subpteuas for 4 witnesses for Prim. Creditor, and gave to BailifT. Gave to Prim. Debtor 1 subpceiia and li copies. Bailitl' returned Prim. Creditor's subpcunas served, 8 miles travel. "On hearing all ])arties, it is a<ljudged that the Prim. Debtor is indebted to tlic "Prim. Creditor in $50, besides $ costs. Also that the Garnishee is in- " debted to the Prim. Debtor in $75, now due, which, to the extent of the "two lirst mentioned sums, it is adjudged, be applied in satisfaction thereol, " and that the Garnishee do pay the .same in 15 days." Prim. Creditor paid costs $ uud stated suit is settled by the jiurties. F0UM8. 281 (5.) CASH nOOK. UKCEII'TH. Suitors' Money paid into the Division Court for quarter comnjcnoiiif; l8t October, 18t»9. arilB (U!<(s. same m.'i\ n costs, .(li.l toCli'l-k .;J WlK'Il rec(!iv<'il 1869. Out. 1. Oi!t. 16. oot. ;io. Nov 1!>. I)e.'. 21. Style of oauae. Hal. from last qr. Doe V. Jtoe Pi'ti V. Fi.n et id.. Jtimrs at.s. Joy . .. Duiiu V. Co.v Ni). of Suit. 136 A.D. 1800 94 " 4J0 " 18()8 Ki'oin whiiiii ri!- I'tMVcd. Dcfuudant. liaiiiir ri.iiiitiir .. yl'2 " 1809 i John Cox. Receipts U]! to 31st December, 1809 Wlioll ]i;iiil oPtliyClerk, Nov. 1,1809 Oct. 31, " Nov. 'J.'i, •' ■lali.,'i, 1870 Signature of licisoll to whom paid. Ain't. .Jiiliii Sliarp, I'liif's Atiy .l:iiiU'.s null.. TliHS. .laiiR'S .liiliu Dunn.. To balancp romaining in Court 31st December, 1869, brought furwaiil 9 CtH, 10 00 40 00 •20 M) •> 75 40 25 113 50 50 25 1870. Jan. 10. Hull V. Ilrowii. &e. 502 A. I). 1809 naiiilf PAYMENT.S, Suitors' Money paid out of the Division (/ourt for (juarter commencing Lst October, 18G!). t i •)! . . ■• .V. btod to tlic ushee is in stent of till tiou theveo( , When paid out. Style of cause. No. of Suit. To whom paid. Amount. 31st Oct., 1809.... lst Nov., " 25th Nov., " Den V. Fen etnl.. iJoe V. Hoc ■James ats. .Joy je to next Quarter . 04 A. D. 1809. 120 450 " 1808. Plaintiff Plaintilf's Attorney.. .. DelVndant .9 ct.s. 20 .50 40 00 2 75 Balan 60 25 113 50 5th Jan. ,1870 Dunn v Cook.. . . 312 A.D. 1809.. Plauititf 40 25 &<\ A,ft. &a. .,-*i* -■ ■,.-■ n.'. ,! ■«»• -A ■ * ■ . .■,i-!f.'-"''vi'.\ • •* Vv- - • - -*,'■>■ " .;■•;.'.. 7' >.. ■' :».. ..•«v^t-.,-.(iV"'HI.' • ;.''!:. •>N....' • . . . - .'.i *■ •'. •■ i •■• J i -** -, 4 • ,,-V'- .^5^■••^::.•• ■i .. .•^> :,.;,?'"'=■■ ■w, '.'!•. ^l^ir:^ >-' •■ '4 "■-■' ' t. t ' ■''.- ■ ■■ /i ■•!'■'■■■. '>■>.-/. ■ '* h' ,_ '■\s:\ > ■ 'll *1 . •.■ .■'.■•■ ■•'. -^^ ^M -• ';-'' v^>- f > *: '/•' '.'^ ' »■•; ■ « ■ • ,' ^ ■ ■ ' ■■■■ ■/'y''*?^'W-^'.' ■ ' •*''!^v?-.%^.i'!\'*. ■ ^:---^::^--:- -}:\^: r ,■ > ■''■^^\::./ m'i ' ■ f .''i'i i ■>■■ . ■■. ' ■> 282 o H OQ O 03 o s ^ a o tr - « ./ O J- S .- « 2 <V at "i M ■*-> - n f3 « h M O • 11 §£ £ = = S " - 3 3 <^ ta 'O — • 3 '3 a °— to a) •■o s .5 o a C . 03 P^ 0-2 o J i^ S2i O jJ+J FORMS. "^^■^IP FORMS. 283 (7.) UNDI'^IlTAKTSd BY NK.KT FRIKND OF INFANT TO BK RKSl'ONSIBI.K F01{ DEFKNDANT'S COSTS. Ill tlio DiviHidii Court in tlu County of I, tlu' underHigticd, K. V\, hc\u^ thu next trifud of A. B., wlioisan infant, an<l who is (k'siroim of enterini^ a Huit in this ( 'ourt ayiiinst C. I), of, &o., htr»;l)y undortiiki! to lio rcsi)onsil)h) for tlu; costs of the said C. D. in such lausu, and that if tiic said A. B. fail to ))ay the said C. 1). all suih costs of such causo as tilt) ('ourt shall direct him to pay to the said C. I)., I will forthwith pay the same ti the (Jlerk of the Court. Dated this day uf 18 . (Signed) E. F. Witness : (S ) AFBTDAVIT FOR LEAVE TO SUE A PARTY RESIDING IN AN ADJOIN I N(; DIVISION. of yeoman, agent for A. B. , yeoman, who {if III/ 'iiijnif, "That , yeoman"). Division, in the In the Division Court in the County of I, A. B., of , yeoman {or I, E. F. , of of, etc. ), make oath and say : Ist. 'I'hat I have a cause of action against C. I). reaidea in the Division of the (!ouuty of the said A. B. has a cause of action against C. D. of 'Jnd. That I (or the said A. B. ) reside in the (Jounty of 3rd. That the distance from my residence (or from the said A. B. 's residence) U) the i)lacc where tins (lourt is held is aljout miles, an<l to tlie place where the Court id held in the Division in the County of i» about miles. 4th. That the distance from the said 0. D.'s residence to the place where the Court is held in tlio Division where he resides is al)out miles, and to the place where this Court is held about miles. nth. That the said Division and this Division adjoin each other, and that it will 1)0 more easy and inexpensive for the parties to have this cause tried in this Division than elsewhere. Sworn, &c. A. B. (or E. F.) (9.) AFFIDAVIT FOR LEAVE TO SUE IN A DIVISION ADJOINING ONE IN WHICH DEBTORS RESIDE WHERE THERE ARE SEVERAL. In the Division Court in the County of I, A. B., of , yeoman, make oath and say (or E. F. of yeoman, agent for A. B. of, etc. ), make oath and say : 1st. That I have (or that the said A. B. has) a cause of action rosjicctively against each of the debtors named in the lirst column of the schedule on this atHdavit indorsed. '2nd. That the columns in the said schedide mimbered respectively 1st, 2nd, .Srd, 4th, .5th, 6th an(J 7th, are truly and correctly filled up, according to the i;est of my knowledge and belief. 3rd. That the Divisions named in the second and third columns of the said schedule, opposite each debtor's name, respectively adjoin each other. 4th. That it will be more easy and inexpensive for the parties to have the said causes respectively tried in this Division than elsewhere. Sworn, &c. A. B. (or E.F.) . '..'.f :•. ■ • r'V ►a. m - 1*^ " ^ , ■.•.v^l. ■, ■ ■■■■-■.ul. '■■■ ■. ■ J'-*-.- ■.'•■'"V-'A, ■ 5 -"■;.'.■ ■ *■ '.; ',./r.;::*-< C.' .» . . .-%,,' ,,- 'i' <'.■.'. , . I.« ' ' '.■ « tj ^» ■■ ,' .■.• '-'■'■•Jy. /■•,;■ •,. , /■■^-•^»"::^'',V-v ■-■:;!,:.?■:■ '■"> .*- -■; c> -/ f \ -' ^ . • •-■ '*..■■ -■■ *'■»' '.■^ ■: i \ ' ','■'* '<;. •..«?. » ..' ^;. ;?•>.: ■4';. ■-'-'''> vr't-! -^ • '■ -.- WvV-:^'" ■■ ;•'■ ■ •/»■".. ■ - ■ '. ■.■.-■..•>iJ >,. .',. 'i- "V h-" ' ". ■■>■ "■":.'■'• ■'^;5^t, ■ '''. ■'■' :'''!.''' ■'• .r.'^^h;'.':' ' . ..■ > s''i'';J '■'.:■ ■ ■ '■'•■'-yu-':'/ ' ■■ ;• ^"•. vj; ■ 284 Q a Si H O W w w .-3 o a o 5 FORMS. 5 Number of miles from debtor's re- sidence to where Court heM in Di- vision w li e r e debtor resides. ■* -.-' ^ Number of miles from debtor's resi- dence to wliere Court held in Di- vision where suit to be commenced. u; 00 r-4 s Number of miles from creditor's residence to ivhcre Court held in Di- vision in wliidi suit to be com- iiieiued. F-< rH 5< Number of miles from creditor's residence to wliere Court held in Di- vi.sion in which delitor resides. 0< ^ 5"^ Division No. 1, in the United Coun- ties of Weiitworth & lialton. 00 d 'A -1 s 1 DO *5 . li •-' 3 > Division No. 3, in the United Counties of Lincoln a: Weilaud. 2 « s 5S Debtor's names, place of residence, and addition. Jiio. Doe, of Saltflcet, of th.; United Coun- ties of Wentwoitl) & Halton, yeomau. • Richar'l Roe, of Mono, County of Simcoe, Esquire. w 1; mmi^mi POflMS. 28-1 I '■'.'•■■J'- by me {or the said A. B. ) to the 3ai<l C. D. ; (11.) AFFIDAVIT FOR ATTACHMENT. (1/ liKidc (tfttr nuit cotiimpnccd imfrt ftf.ylc of Court and cuui^n.) I, A. B., of the in the County of {or I, E, P., of etc., agent for tlie said A. B. of, &c.) niivko oath and say ; 1st. That C. D. of (o?- hite of) in tlie County of is justly i«id truly indebted to nie {or to the said A. H. ) in the sum of dollars iiiid cents, on a promissory note for the payment of dollars and conts, made by the said C. 1)., payable to me {or the said A. B.) at a day now- past ; (h- for goods sold and delivered ") Or for goods bargained and sold I Or for crops bargained and sold {- Or for money lent I Or f(.rmonej'paid for the said CD. J Or for and in respect of my {or the saiil A. B. having relinqnishcd and given up to and in favour of tlie said C. D., at his request, the benetit and advantage of work done and materials found and provided and moneys expended by ine (or the saitl A. |}. ) in and about the farming, sowing, cultivating and improv- ing of eerti.in land and premises ; Or for the use by the said (J. I)., by my ])ermission {or by the permission of tbe s.'iid A. J$. ) of messuages and lands of me {or the said A. I'l.); (>/• for the use by the said C. \). of pasture land of me {or the said A. i>. ) and the eatagc of the grass and herbage thereon, by the permission of me {or tiie said A. 15,); Or for the wharfage and warehouse room of goods deposited, stowed and kept by me {or tlie said A. B) in and upon a whai-f, warehouse, and premises of me (<>/• tlie said A. B. ) for tiie said C. D., at iiis recpiest ; Or for horse-meat, stabling, care and attendance provided and bestowed by mo (or the said A. B.), in feetling and keeping horses for the said C. I)., at his request ; or for work done and materials provided by me (or the said A. B.,) tor the said C. ])., at his recpiest; Or for expenses necessarily incurred by me (or the said A. B. ) in attending an a witness for the said C. 1)., at his reipiest, to give evidence upon the trial of an action at law then depending in the Court, wherein the said ('. L). was plaintitl'and one E. F. defendant; ')/' for money received by the said C. D. for my use (or for the use of the said A. B.); <>r for money found to be due from the sai<l C. D. to me (or to the said A. B.) on an account stated between them, {or otlwr caunc of action, .ttathig t/ic "nine in ordinari/ and i-onci'«' laniinaije.) 2iid. I further say that I have good reason to Itelievc, and do verily believe, that* the said C. D. hath ab-sconded from that part of the L)oniinion of Canada wliieh heretofore constituted the Province of Canada, leaving personal jiroperty liable to seizure under execution for debt in tlie County of in this Province. ' [Or in^ti-ad of waiter hdwci'n the axtcriskn, the said C. 1). hath attempted to remove his personal projierty liable to seizure under execution for debt out of thi:-5 Province ; or tins said C. D. hath attempt(>il to remove his personal piMpcrty liable to seijojre under execution for debt from the Countv of to the (!ounty of in this Province; o/" the said C. 1). keejis concealed in the Jounty of in this Province to avoid service of process) with intent and design to defraud me (or the said A. B. ) of my {or hisi said debt. .'hd. '"bat this affidavit is not made by rae nor the process thereon to be issued i.om any vexatious or malicious motive whatever. Sworn, etc. A. B. »*'♦■« ■ '•■-•:"■ y .'• • '1 1 ,\ ^ %. «. 4.--* V .^ ■-'••■ <. .■»* ' "• • >. I Hit. . . . . * *■ ~ ••'! ■, ? '■.1 * * .i"|r-' ■.■••.-■. V -. ■■•1 r. /v '-i.vT^i* ■■■■• ■ ;.>^:w'^^*i■.'• ■■ r'j'.':-*.'S'.' •■■ .-•'<. ••> iif ,:■ }• ' ':. .• -'.r ■■■,<■• . ■ ■ '■■' : ;.* -.t.'. ' «• . . ,.• ' • ■ - u ;» • • ■ ' /'• ■-■'.?*•. ' . ' . . ' ., , ," .'.'; - ■',■-«, '/■■■.',•.•■ 1^' \'''' -:•'■- : .»■■ "•-■■''■ v>K-r.'->'' v' . ■.■.•■,'»■•«"■/. V" ,..l>' •,• ^•.••■■.\^-A- ' ■• .«:*■,• '■'. ■- • . .;.> ."•:'».■.■' •'«••. ►■It ■ V' -.•,'■.' ^ - , .1 .>,♦ \ . , . ^. ■Kf- IV W . •.V:'^V^,^* •■■.■■■ ■ " .v>'. :-.,■ . . ■ ■^■- ■ *;- -Y' ■" . •.?:^> •(.-;*'.> ■■;■■■' v" * -r- ■■ ■■' ■ :.<■■ ■*..«■'' ■ . ^ ' .-^ V"-; ' ■ — ■ * 286 FORMS. (12.) ATTACHMENT AGAINST AN ABSCONDING OR REMOVIN(; DEBTOR. To A. B., Bailiff of the Division Court iu the said. County of (or to A. B., a constable of the County of aa the case may he.) You are hereby commanded to attach, seize, take, and safely keep, all tho personal estate and ellects of C. D. (iiainituj the debtor), an absconding, remov- ing, or concealed debtor, of what nature or kind soever, liable to seizure under execution for debt within the County of [here navw the Countij), or a sutHcient portion thereof to secure A. B. [here name the creditor) for the sum of {l.cre utate the amount sieorn to he due), together with the costs of his suit thereupon, and to return this warrant, with what you shall have taken thereupon, to the Clerk of the {here slate the number of' the divinion) Division Court in the (Jounty aforesaid forthwith ; and herein fail not. Witness my hand and seal (or the Seal of the said Court) the day of one thousand eight hundred and X- Y -, [us.l Clerk, or Justice of tho Peace (as the cane may be). KEPLEVIN. (13.) AFFIDAVIT TO OBTAIN JUDGE'S ORDER FOR WRIT OF REPLEVIN. Division Court in the County of I, A. B., of , make oath and say; In the County of To wit. 1st. That I am the owner of (de.'scribe property fully) at present in the possession of C. D. ; or that I am entitled to tho immediate possession of (defierihe projierty), as lessee, (bailee, or jvgent), of E. F., the owner tluircof (or as trustee for E. F. ) (or as the case may be), at present in the possession of C. D. 2nd. That the said goods, chattels, ami personal property arc of the value of dollars, and not exceeding $40, 3rd. That on or al)out the day of , the said goods, chattels, and personal property, were lent to the said C. D. for a period which has expired, and that although the said goods, chattels, ami perscmal propeity hai--e l)een demamled from the said C. D., he wrongfully withholds and detains the same from me, the said A. B. ; or that on or about the day of , the said C. 1). fraudulently obtained possession of the said goods, chattels, and personal property, by falsely representing that (here •state the false representation), and now wrongfully withholds and detains the same from me ; or, that the said goods, chattels, and personal property were, on the day of last, distrained or taken by the said C. D., under color of a distress for rent, alleged to be due by me to one E. F. , when in fact no rent was due by me to the said E. F. (or as the case may he, settin;) out the facts of the turongful takimj or dHention complained of with certainty and precision.) 4th. That the said C. D. resides (or carries on business) at witliin the limits of the Division Court in the County of , (or tb?*^ he said goods, chattels, and personal property were distrained), (or taken . ■ detained), (or detained), at within the limits of the Division Court of the County of Sworn, he. A. B, FORMS. 287 ■>..; ■ .' (14.) AFFIDAVIT TO OBTAIN WRIT WITHOUT ORDER IN FIRST INSTANCE. \ The. first four sections may he as above, and the followinrf must he stated in addition] : 5th. Tliat the said personal property was wrongfully taken {or fraiuhilcntly got) out of my possession within two calendar months Ijcfore the making of this afiidavit, that is to say, on the day of last. 0th. I am advised and believe that T am entitled to an order for the writ of replevin now applied for, and 1 have good reason to apprehenil, and do ap])re- liend, that unless the said writ is issued without waiting for an order, the delay will materially prejudice my just rights in respect to the said j)roperty. [Or if the pntpcrtii was distrained for rent or dnmnije feasa)it. then the state- ment (jiien in the last specific alternative nnder the 3rd clause of the above form mil be sufficient to obtain writ without o7'der.] * ■ ■" ■ i » ^■:- >*..'« P ' •' % (15.) CLAIM IN REPLEVIN. No. A.D. 18 . In the Division Court in the County ot A. B. of states that C. D. of did on or .ahout the day of A.D. 18 , take and unjustly detain {or detain, as the rase map tie), and still doth detain his goods, chattels and jJcrHonal property, that is to say {here set out the descripticfn of /yrojH'rli/) which the saiil A. B. alleges to be of the value of dollars, whereby lie hath sustained damages, and the said A. B. claims the said property with damages iu this behalf as his just remedy. A. B. ■-•■■ i% irc of the No. (16.) PARTICULARS IN CASES OF CONTRACT. A.D. 18 . A. B., of claims of C. D., of , the sum of? , the amount of the following account, viz., {or "the amount of the note, a copy of which is under written,") together with the interest thereon, \or, for that the said C. D. promised {here state shortlij the promise) which undertaking the said C. IJ. hath not performed, or, for that the s; ' 1 C. D. by deed under his aeal, dated the day of A.D. 18 , covenanted to, &c., and that the said C. D. hath broken said covenant whereby the said A. H. hath sustained damages to the amount aforesaid ; or for money agreed Ijy the said 0. 1). to be paid by the said A. B. , together with a horse of the said C. 1). , in exchange for a horse of the said A. B., delivered by the said A. B. to the said C. D. ; or for that the said C. D., by warranting a horse to be then sound and (piiet to ride, sold the said horse to the said A. B., yet the said horse was not then sound and (juiet to ride ; or for that the said C D., in consideration that the said A. B. would supply E. F. with goods on credit, promised the said A. B. that he, the said C. D., would be answerable to the said A. B. for the same, that the said C. D. did accordingly supply the said E. F. with goods to the price of $ and upwards, on credit, that such credit has expired, j'et neither the 'said E. F, nor the said C. D. has as yet paid for the said goods ; or for that the said A. B. let to the said C. D. a house for seven years, to hohl from the <lay of , A. D. , at $ a year, jmyable quarterly, of which rent quarters are due and unpaid. (The above forms are yiven merely as examples of statements of canses oj action, and the claim must shew such further particulars as the facta of the caw require.) • * * f •■■■':'■ i- ,1'.: .'.->V.,-''..»^ •. ' '•/: ?-^^r tii'l'.- •.■■,^Cl••.■:^..-,, ^- iv .., . .?•'.;•••,■>■■■,••• .• ••• ^r:--- <: 1, 'Vl-i-;,:' ■:'.,■ ".■lj .J- ■| ",..•'' "■'';''■;■ . . ;.^'ii:.v':-.- i'. ,•*■ ■ ■ . i^' ''k 1 '?: ■ ^ . ^!. ; V f 288 FOKMS. (17.) PARTK.'ULARS IN CASES OF TORT. No. , A.D. A. B., of states that C D., of did, on or about the ilivy of , A. 1>. 18 , at the Tovvnsliip of , unlawfully [take- and cDuvert one cow ami ono calf, tliu propurty of the said A. li. ; or l)rn;ik a:id injure a waggon of the said A. li. : or falsely represent fj. O. as (it to l>u trusted, the said C. I), at the same time knowing that the said L. O. was'insol- vent, wherel)y the said A. H. was induced to give him credit : or assault and heat the said A. B. {nr as tin' ciiifi iikii/ he., statin<j the Tort sued for in ronnxi' liiiit/uaije) ;] 'I'he said .A.. B. hath sustained thereby damages to the amount of , and claims the same of the said (J. D. A. B. (IS.) PARTICULARS IN ACTIONS AGAINST A CLERK OR BAILIFI AND HIS SURETIES. No. A.D. 18 . A. B. of claims of C. D., Clerk {or Bailiff) of the Division Court for the County of , and of E. F. of , and G. H. of (sureties for and parties with the said C. D. to a covenant for the due performance of the duties of liis saiil of lice) tlic sum of for moneys had and received by the said C. D. as sucli Clerk {or Bailiff) as aforesaid, in a certain cause in the said Division Court, wherein the said A. B. was plaintiff, aiul one H. H. was defendant, to and for the use of the said A. B., the payment whereof the said C. D. unduly withholds. And also (■stntbi;/ in lib' vumnfr (in;/ ollicr dmilar claim) — [or the sum of for damages sustained by the said A. B. through tlie misconduct {or neglect) of the said C. D. in the per- formance of the duties of his said office : For tluit on the day of at ((kticrihe in onliitdrif lanijuage the neglect or niiscomhict, whereby the iln.uiaife loas occasioned).] A. JLJ. (19.) APPLICATION OF BAILIFF FOR INTERPLEADER. In the Division Court in the County of — , Plaintiff, Between A- C- -B- AND — D- Dejevdant. dated dav ; ete\ By virtue of a writ of execution {or "attachment") in this cause, the day of ,18 , from this Court, I did, on the of ,18 , seize .and take in execution {Hpecifij (joodn, chattel ifcized) as the property of the defendant. E. F., of the Township of etc., now claims the same as his property {or now claims the said and as his property), and that the value thereof is $ ; you will there- fore be pleased to issue an Interpleader summons to the plaintiff and to tiu; said E. F., according to the statute in that behalf. To the Clerk of the said Court. V W., Bailiff. Dated, etc. '.•. FORMS. 289 f20.) LANDLORD'S CLAIM FOR RENT UNDER SEC. 1"6. (a.) Whereas I have l)een informed that you have seizeil tlic goods of C. D. , of , ou hia premises at , to satisfy a certain judgment of the Division (.ourt in against the said C. D., at the suit of A. B.; I hereby give you notice that I am the landlord of the said premises, and that 1 claim $ for rent now in arrear, being for one quarter (or «« the case may be), and I require you to pay the same to me before you apply the proceeds of the sale of said goods or any part thereof to satisfy the said judg- ment. Dated, etc. E. F. To V. W., Landlord of said Tenement, Bailiff' of &c. (2L) PARTICULARS OF CLAIM ON INTERPLEADER. In the Division Court in the County of Between A B , Plaintiff, C- E- AND D- F- -, Defemlant, -, Claimant. To whom it may concern E. F. of claims as his property the following goods and chattels [or moneys, &c.,) seized and taken in execution (or attached), as it is alleged, namely (spe.ci/i/ the goods and chattels, or chattels or moneys, <0c., claimed), and tlie grounds of claim are (set forth in ordinary lantjiUKje the particulars on which the claim is grounded, as how ac'iuired, from whom, when, and the consideration paid or to be paid, and when), and this the said E. F. will maintain and prove. E. F. Dated this day of , 18 . N. B. — If any action for the seizure has been commenced, state in what Court ajul how the action stands. ..'■■.•V, :-'-)l . -.' !• * \ ••« . ■ »■■: -I No. In the [Seal] (22.) ORDINARY SUMMONS TO APPEAR. ,A.D. 18 . Division Court in the County of Between A B , Plaintiff, D- -, Defenilant. To C. D., the above-named defendant. You are hereby [as before (or as often before) you were] stimmoned to appear at the sittings of this Court to be holden at , in the Township of , in the said County of , on the * day of A.D. 18 , at the hour of in the forenoon to answer the above-named plaintiff, in an action on contract (or in an action for Tort), for the causes set forth in the plaintiff's statement of claim herewith ; and in the event of your not so appearing, the plaintiff may proceed to obtain judgment against you by default. Dated tlie day of , A.D. 18 . By the Court. Y- ., Clerk. Claim % Costs, exclusive of mileage * N. B. —The day of holding the Court must always, and in all forms, be stated at length in Words, and not in flgurcs. 19 (a) Now section 211. ■ s ":. :v-''! "■■. 4' ■ ■J..: ■.>•* .•!... '.'< ■ ■■ .1' . ■ '■ '■:•.■ ♦■•*'v*A-'.,'-v-v .<,■■■■•'*■;? ■■•,•■ •■'(■■,.■■, 'r.-.^'-; >;■^■■ '•■ i;; V,.v ,■* .»*■'• • »y ■ ^,. .' ■';. i.. .'./ , -"V ■*- , T* • ■ ■':>^A."■ ;- • . .vs^''. ■■.■'• N ,^. ; .V.' .•■;■* v '•. ■•<■ rV; 4 . ■*■-■ -r^..* .■' . ; '-i' •■■ t' -■ '. • .';*■■,• **', " ^•:.^^v ■^^■■ ■*• . ■.* '■■"' ',' ."*'-H ■ ^ ■* j. ', ,, ;'' ' " ■-.''■ ^ ' ■■V,; '^i':^-:'} r ■!> "- ■ . '"'■' tm : .;« V . 'j •\..-'i*':' ■' ,■'*>»' :.- ^^K- • "» ., ?» ' ' * t , ■■ - *\'^ ■ % ■'■ ' . .4 ' ■ ■.'..»' ■;<rr "^■-r •,■ >^ . • ' ■ «: ■ < T ■.'-.. ' * ;v. ■^^t^^-i^v: :-J^-::'y 1,- .' ■ ■'r» ■■-',■?'..■.■ .'• r^ - • .' .« -.V'.*^ .';'r"V. 290 FORMS, NOTICE. Take notice, that if the defendant Ac^iTL'sto nH-ofnnij dnnavd (ujiihiitl ilr. plainlijl' {if (lie action he. for t)rf, omit the wonls in U<i(!rs) at the trial or hear- ing of tliis cause {or) to take tiie bonelit o"" any Statute of Ijiniitations, or other atatute, notice thereof in writing, and if n nct-olf coiifoiiiii);/ t/ic purtirnlaiM of mich mt-off ( otni.l the wordu last in itolirx, ifthc nrlion he for tort) must he givim to the i)laintitf', or left at his usual place of abode, if living within tlie I )i vi- sion, or left with the Clerk of the said (yourt, if the plaintiff resides without the Division, not less than six days before tiie day appointed for the said trial or hearing, and in case of set-off a copy of the particulars of his set-off and also a copy fcr the plaintiff'. No (23.) SPP3GIAL SUMMONS. AD. 18 . In the Division Court in the County of [6Va/.] Between A^ B , Plaintiff, A.ND C D , Defendant. I 'he above named- defendant. y plaintilF demands of you $ as shown by his claim herewith; you „i(; lijtiiietl that tiiis summons is returnable on the eleventh (or sixtueutli or twenty-tirst, accordivi] to the remlence of the d'feridanl) day after the day of the service lun-eof n])on you; and you are to satisfy the said claim against you, or if ni di ' ' the same or some part thereof, you are to leave witli tiic Clerk wifciiiu c'ulit (or -^.welve, ace.ordi)i(f to the residence if the difevdant) days after the day of sitcJi service the notice mentioned in warning No. 1, sui^joined ; otherwise after such return <lay has passed judgment may be given against you l)y default. In case you give such notice disj)uting the claim, tlio cause will be tried at the sittings of this ('ourt, to be held at in the .said County on, or next after the day when the summons is returnable, at wliicii time and place you arc required to ap{)ear. And, in default of your so appear- ing, the plaintiff may proceed to obtain judgment against you. Dated the day of A.D. 18 By the Court. X Y , Clerk. Claim % Costs, exclusive of mileage NOTICES AND WARNINGS TO THE DEFENDANT. Warning No. 1. — If the defendant disputes the plaintiff's claim, or any part of it, he must leave with the Cvlerk within ehjht or twelve days after tiic day of service hereof, a notice to the effect that he disputes the claim, or if not the whole claim, how much he disputes, in default whereof final judgment may be signed for the whole claim, or such part as is not disputed (if tlic plaintiff is content with judgment for such part) at any time within one montli after the return of the summons. Warning No. 2. — If the defendant desires to set-off any demand against the plaintiff at the trial or hearing of this cause, or to take the })enetit of any Statute of Limitations, or other statute, notice thereof in writing must l»c S'ven to the plaintiff, or left at his usual place of abode, if living M'ithin the ivision, or left with the Clerk of the said Court, if the plaintiff" resides with- out the Division, not less than six days before the day appointed for the said •^mi^^m FORMS. 291 trial or hearing, and, in case of set-oflF, a copy of the particulars of his set-off ajid also a copy for the i)l;iiiiti(l'. The two next ensuing sittings of the said Court will be held as follows, viz.: at o'oluuk, A.M. Oa the day of A.l). 18 On the day of A.D. 18 .' t In one niout jneiit of any (24.) SUMMONS IN REPLEVIN. In the Division Court in the County of No. A.D. 18 . [Seal.] Between A B AND - u c- -, Plaintiff, -, J)('ffii(/iniL To V. W. , the Bailiff of the said Court, and to C. D., the above-named defendant : You, tlie said Bailiff, are commanded that without delay you cause to bo replevied to the plaintiff the goods, chattels and jiursonal property de.st;ribcd in the st.itenieut of the plaintill's cliini hereunto annexed, in order that the plaintiff' may have liis j\ist remedy in that behalf. Ani yon, th,; siid djl'on Ivnt, are huruljy summoned to be and appear at the next sittings of this Court, to be holden at , in tlie County of on the day of , A.D. 18 , at the iiour of ten o'clock in the forenoon, to answer tJu) above-nametl plaintitl'in an action of Kepievin, for the eauses set forth in the ])laintifi''.s statement of claim iiereunto annexed; and in the event of your not so ajipearing, tlie plaintiff may proceed to obtain judgment against you by default. Dated the day of , A.D. 18 . By the Court. X Y , Claim for return of goods and damages . . S Clerk. Costs, exclusive of mileage WARNINGS TO THE UEIENDANT. 1st. In ease you do not appear to this writ at the time specified in the sum- mons, tlie plaintill' may, on <iling the writ and aflidavit of due service, jiroceed thereon as if you liad app ■- jd, a.nd obtain Judgment against you Ijy default. 2nd. If you claim a right to the {lossession of the goods l)y reason of any claim whieh you may have to urge; un(k;r any statute, or to take the benefit of any .Statute of Limitations or other statute, notice tiiereof in writing must be given to the piiiintiff", or left at iiis usual ])lace of abode, if living within the J)ivision, or left with the (Uerk of the said (Jourt, if the plaintill' resides without the Division, at least six days before the day appointed for tlie said trial or hearing. (25.) INTERrLEADElJ SUMMONS TO CLAIMANT. No. , A.D. 18 . In the Division Court in the County of [tSeal.] Between A B , Plaintiff. C E AND -D- -F— — , DcJ'cnilant, — , ('/ainiant. ■ Yoxi are hereby summoned to appear at a C(mrt to bo holdon on nfc the hour of A.M. at , touching a claim made by you to certain goods and chattels [or moneys, &c., or securitiea {as the cast may be)], viz. : .j.> 7 I I r^.'^t: •■''."■k-. ' .:■ ■' ■ -^ ■•-'?■!•.- ;■ ', .••« ..• > •:■' -•*',■■,•.■ • ;:;;:.v:fi^.v:;"-;V.'^ .•■•..■•ii^'L-V-''.-",. -..•.;--?n:,\:;;;,-.^-;. .■>;<?•••., , '. '. ■ • • ■ ••"■■' ^ ■, ; ■ ■• ■ .■,■^^. •'.*?■• .' ■ . ■.v,..-'3?>-. :■■■■..•■ ■ •">•..•.>■ ■■•;,'*: • - t <' ■ ■ " '4., ■ ■' . ■> w .''^••■r. , »■ .... ,:-.-v •;;•:'. '•■•^X-V ■•^>'fe'^-.^ 292 FORMS. (here. Kperifij) seized and taken in execution (or attached) under process isj^md out of this (Jdurt in this action (or hy a .Fustice of the Peace), and in default of your then estaldisliing sucli ehiiin, tlie said goods and cliattels will be sold ((,/• the said in(»neys, dtc, paid and delivered over) according to the exigciuy of the said process : and take notice that you are retpiired, six days before the day appointed for the said trial or hearing, to leave at the (Jlerk's office a pur ticular of the goods and chattels [ur an (he cutie may he) so claimed by you, ami the grounds of your claim. Given under the seal of the Court this day of 18 . X Y , Clerk, To E. F., the above-named claimant. (26.) SUMMONS TO PLAINTIFF ON INTERPLEADER. In the Division Court in the County of No. A.D. 18 . [Seal.] Between A B , Plaintiff, C- E- AND D — F -, Defendant. -, Claimant. Whereas, E. F. of hath made a claim to certain goods [or to certain securities or money (as tJis cane may he)], viz. : (/lere specify) which have been seized and taken in execution (or attached) under and by virtue of process issuing out of this Court in this action (or by a Justice of the Peace); you aru therefore hereby summoned to be and appear at a Court to be holden at on at the hour of , when the said claim will be adjudicated upon, and such order made thereupon as the Court shall deem ht. Given under the seal of this Court this day of , 18 . X T , Clerk. To A B , The above-named plaintiff. N. B. — The claimant is called upon to give particulars of his claim, which you may inspect on application at the office of the Clerk of the Court Jive days hi for'- Uie day of hearing. (27.) APPLICATION FOR JUDGMENT SUMMONS. To X. Y., Clerk of the Division in the County of Be pleased to summon of, &c., to answer according to the statute in that behalf touching the debt due me by the judgment of the said Court of the Division Court of the County of , on my behalf, ii uiinute whereof is hereunto annexed. A. B., Plaintifl". (28.) SUMMONS TO DEFENDANT AFTER JUDGMENT. In the Division Court in the County of Nq. A.D. 18 . [Seal.\ Between A B , Plaintiffs AND C D , Defendant, To the above-named defendant. Whereas on the day of , A.D. 18 , the plaintiff duly recovered judgment against you in said Court, holden in and for said Division, ' *v-^-?^'v / :.■*'■ _< ... '.ft ■ ^^^* V y ■«■ FORMS. 293 for 8 for debt, and ij for costs of suit, which remains unsatisfiod, you are therefore hereby (in case of a seeoud sumuions here insert tlie words •'us before you were ") summoned to aiijtear at the next sittings of this Court, to be hfdden at on the day of , at the hour of , to Ije tiien and there examined by tlie .Judge of the said Court touching your *!statc and eHects, and the maimer and circumstances under which you con- tracted tlie said delit (or incuired tiie damages or liability) which was the subject of the action in which the said judgment was obtained against yr)u, and as to the means and expectations you then liad, and as to the property and means you still have, of discharging the said debt (or danuiges or liability), and as to the disposal you may have made <if any of your property. And take notice, that if you do not appear in obe<lience to this summons, you may, by order of this Court, be committed to the Common Jail of the County. Given under the Seal of the Court this day of , 18 . By the Court. X Y , Clerk. Amount of Judgment $ < 'osts of this summons •■<'■,•' . ,■» (29.) SUMMONS TO DEFENDANT AFTER DEFAULT, (a.) No. , A.D. 18 . lu the Division Court in the County of [Seal.] Between Plalvtiff. AND Dcfoidant. Whereas at the sittings of this Court (or of, etc.), hoKlen at the in the Town of in the County of , on the day of , 18 , the above uanie<l plaintiff' obtained a judgment against you for the sum of $ for debt, besides interest tliereon, and .'? costs to be paid , and which said judgmjut remained unsatislied ; And whereas by a summons bearing date the day of 18 you were summoned to appear at the sittings of this Court, holden at the of in the County of , on the day of , 18 , at the hour of of the ch)ck in the forenoon, to be then and there <!xamined by the .Judge of the said Court touching your estate and effects, and the manner and circumstances under which you contracted the said debt, which was the subject of the action in which the said judgment was olitained against you, and as to the means and expectations y on then (at the time of contracting) had, .and as to the property and means y<m still had (at the said last day aforesaid) of discharging the said debt, and as to the disposal you may iiave made of any of your property. (If debtor did not ajipcar upon tlic^firnf hut did upon a second siunmons recite accordintjii/ ;) And whereas upon your appearing thereto, and upon examination and hear- uig of both parties (or of you, and the evidence, if any), it appeared to the satisfaction of the said Judge tliat you then had (or had since the judgment o'otained against you, as the. cane may he) sufficient means and ability to pay the said debt and the interest tliereon, and costs so recovered against you ; and the said Judge did then and there order and direct that you should pay to .'*•'.' (ff) This summons ig Rpjilic'able wlii'ie, on examination of a debtor under tlie lT7th section, lie lias l>een onlered to pay tlie debt in such time and iiiauuer as the Judge thinks in'oper and Ii.'is made default. It does not ajiply to a ease where after examination, the Judge has for gi o I reasons appearing to him ordered the debtor, then present, tn be committed under tlie 182nd Hi!(ftion : Baird v Story, 2;f U. 0. H. 024 In tlii! latterea.se no summons to shew cause is neces- sary before eommitmeiit : Ih ; F.Uj v. Munh', U Kx. \<. '.125. Hut an jrder for payment containing the alternative of connnitmunt ia the event uf default is had: Abley v. Vale, 10 (J. li. 02 ; JJcvfs \. lUlfy, U C. a. 434. :vf i. .' ■1. J . ■:. ^rv•.v;■^.^'• V- ■' ' - ■ * ■.,-.# ■''.'-* .- • ;■• V V .'•'■•>. '♦• ■ • '^'-^^i^.^ '■■■ .•*''5'' ■ ••• i ■ I •'•'>*.■;>. *. *l'.' '.'■ i ,'•; •■.•»;. ■ •• t. ■. -'•■ •.. *'•■ "■•■" V. ' , ■ * - - \'- -X'--: •. ■.hi, v'*'',v, - ,', ■:<",■ ■>■'. v.v;^; ■•■■ <^ V>-f-^x-'k ■■ 294 FOKMS. the siiiil pl.iintin'tlie KUtn of $ <l(;l>t, jitkI iiitorcst tlicMi juicriiod, and $ costs, iiirl also .■> costs of the s:ii(l last iiiuntioiKjd .smiimons, to U.' paid ss follows, that is to say, tiii! sum of $ to lie paid on tlio day of 18 , the I'liitlirrsuiii of S to ho puid ou the day of ,18 or forthwitli iu--^ the <■(!/"■ iituji lie) ; And w hciuas the i)laintill allc^'es that you have not paid the aiul instaimi'tits of eaeh ; ior the .said hiiuis) so orduvd to lie paid ; Yon are therefore lierehy sunnnoned to ajipear at the next sittitii;!i of this Court, to he iiohlen at the in the town of in the tJouuty of , on tile day of , 18 , at the hour of ui the eloi'k in tin; forenoon, to he then and there examined liy the .Judge of the said Court toucdiin^' your estate and elVeets, and the niannei and eiiiiiuistaiiecy; undi'r whieh you tontraeted tiie said deht, whieii was thi^ sniiject of the uetion in which the said judgment w.'us obtained against you, and as to llie means ;\m\ expectations you tlieii had, and as to the propei'ty and means j'oii still have, of discharging the said deht, and as to the disposal you have made of any of your property, and as to tiie reasons \vl»y you have not paid to the ]ilaintin the said and instalments of each of thesaid lielit, so order(d to be paid hy you, as last above n\eutione(l and reeiteil, pursuant tu the said order <if the Judge. And also to shew cause why you sh(ndd not he committed to the common jail of the County for not eonii>lyiiig with the said order of the said Judge. (jiiven under the seal of the Court this day of 18 By the Court. X Y , Clerk. Amount of judgment £ " instalment Cost of this summons <i'tpc~:':- ... . -.'.V..':?^*. . ••.rt''t- • f^ ■.%i' i.i" .■• .«' -, ■ V'"< ' * V. 7 Oi' ■■';'.. ':■■ ■ ...■•'?:•■■•■:■■.■ . •• > V * '"■•'lY '. ' •■ *•' ■ *B . ' " '■■■ ■*' -'*•.'■-> , " ' .■■"•,:'" '''$::f ■ r.v ■ T !' '■:• ' . ■'.'■■ ■ ft ■;! '• ■>•■,'.' \.v.' :..;;•-■■'■•.> ' -■•■.?»- r^v^ ^•." ' ' ■ -, -s •V\.v-'..... .. * ' ' , '- '■■ 'i^: >*■••■■■ I." (30.) SUMMONS ON BEHALF OF EXECUTOR OR ADMINISTKATOK TO REVIVE A JUDGMENT. A.D. 18 . Division Court in the County of Between A B , Executor of C. D., No. In the [Seal..] E- AND - F- deceascd. Plaintiff'. Defendant,. To E. F., the above-named dofemlant, Whereas on the day of A.D. 18 , the above- named ('■ !>■ duly recovered in said Court holden in and for said Division, judg- ment against you for § debt, and .? costs of suit, whieh judgment, a transci'ipt of which is hereunto annexed, still remains unsatislied, and the said i)laintitl" as executor aforesaid, claims to have execution thereof you are hereby sunnnoned to appear at the sittings of this Court to be holden at ou at in the forenoon to shew cause, if any yini have, why the said plaintitT, executor a? afores.ii 1, should not have execution against you of the saiil judgment, according to t!ie force and effect of the said recovery, and, in the event of your not appearing, judgment will be entered against you by default. By the Court. X Y , Clerk. Dated this (lay of ,18 Claim $ Costs exclusive of mileage N. H. Tlii.s l'i)rm may be altered to suit other facts shewing a change of the parties enlitkii to execution, which iiiulie a revival uecessary. iA-i'-- FOUMS. 296 No. In the [Seal] [Stamp.] (31.) SUMMONS ON A DEVASTAVIT. .1). IS . l>ivi.si(m fJourt in the I'ounty of Bktwekn A- C - H AM) -D- — , PlaitUiff, -, Executor {or ,\(ln»inistrator) of I']. F., deceased, i>(/f /((ton/. To C !>., the al'ttvenaini'd defendant. You arc hereby [.'is Wufore ((*r ix'* often l)efore) you were] sun\iuoiicd to he .ind aiiiiear at tlie 3itti)it;-< of i!\is ('ourt to l)e ludden at , on the day of , A. I). IS , at llie hour (»f in the forenoon, to answer the alKtve-n-aned jdairitilf in an action, for that you, the defendant, have withheld and wa^teii diser* j^ooda and chattclH, which were tile |)ro]»erty of E. v., deceased, at the time of liis deatl>, and which came to tlie liauils of you, the defcn(hint, as exeiMitor (' r aihninistrator) of thi; said I']. F., to \n\ adminis- tered, wherchy a certain judgment recovered aijainst you by tiie phiiiililK in this Court (.u tl" day (if A. D. 18 , lor .•? remains ransatislicfl ; am.' ..( the event (tf your not ajipeariug, the plaintifi' may jiroceed Bo obtain judgraeut against you by default. Dated tlais day /)f 18 X Y , Clerk. (.32.) SU(;(JKSTJON OF DEVASTAVIT ON OIllOINAL SUM.MONS. {Coiamcnrc with Form of Saininonx, (xx in ^' <)r<lhiiirji Sumnmnn to Aftpcar,^' but n'tiu'ii;/ dc/'cirl'tiif (iv c.r.i-cutor or (vliiibilitrdtur itiid (iddhi'i <(ft< r the word "default") and the i)laiutiil' alleges that you, tiic defendant, iiave money, goods and cUattelR, which, were the property of the .said C. D., deceased, at the time (d his death, and which came to your haiuls as .'inch executor (or .idnjinistrator) Ui be administered ; and if not, ti/at you have withheld or wasted the saoie. €33.) SUMMONS TO REVIVE JUDGMENT AGAINST AN EXECUTOR. No. , A.D. 18 . In the Division Court in the County of [Seal.] Between A B , Plaintiff, [Samp.] C- AND -D- -, Executor of E. F., deceased, Defendant. To C. D. , the above-named defendant. Whereas, on the day of .A.D. 18 , the pl.aintiff duly recovered in the said Ccnirt, h(dden in and for the said Division, judgment against the said E. F, in his life-time for .'J for del)t, am^ ••' costs of suit, which judgmjut, a transcript whereof is hereunto annexcu, still remains unsatislied; jxnd the said plaintiff claims to have execution thereof against you, as executor of the said 10. F. : you are hereby .summoned to apjiear at the sittings of this Court, to lie holden at , on , at the hour of , to shew cause, if any you have, why the said plaintiff should not have execution of the said judgment against you, as executor as aforesaid, to Ix; levied of tlie goods iiud chattels of the said IL F., deceased, in your hands to be administered ; • .-^v:■.-: w- .1. »V •?>.'* •■ '■* "■ 1 -:•-;-•■ ---..v .■:.■ ; ■>•!. " ,- r « - -y •. ^i * ■* *'*■ *■ ■■ ■ ■ ^ '•» !•.■.•.. >,.■ •■■^l- >;■>.♦■:.,;•• '.-h "1 r, 1.* T, ■'•■■■ ■ •■* '^■''i J. •'. «. *:• T'. -Si . .i'J-A V* •'•;■.■•; 1- •,;<';::. 'tir-- ^V^.S:.;f--^. ./■■•■ » '• ,'.■,- , •V:.!-:i.-, . , -i ,...-%..'■. ' ■ ■•■.■ •■' ;*•••• ■[". :'■:■■'. :i-- ■.■■ ;v.-^*^^- ■.'.•;,•.■■ -^, :. . • •'. r. -r .■ ■■ ■ rj.-"* "''';>■■.■ '. " ■' ■•■' ■i"! • -^ ■■'•*■••■'* • ■;' '•!*■ 'i*. l]'J">^-; ii-'^-'sw.'S"'" ..f■. FORMS. antl, in the event of your not appearing, judgment herein will be entered against y(Ui l»y default. Dated this day of , 18 . By the (.'ourt. X Y , aerk. Amount claimed $ Costa exclusive of mileage N.B.— This form iiiiiy be alturetl to Huit other facts shewing a chiuigc of the parties liable U nxei'Utioii wliii'h iiiakf a rinival necessary. (34.) SUMMONS TO EXECUTOR OR ADMINISl- _ lOR, where Pl.mn TIFF INTENDS TO APPLY TO Til's COUKT, ALLE(iIN(i THAT A.SS£TS UAVK COME TO THE DeFF^NDANT's HANDS SINCE Jl UGMENT. In the Division Court in the Connty of Ko. A.D. 18. \Seal.'[ Betwfjin A B , Plmntif, AND C D , Executor (or Administrator^ of E F., deceased, Defcmhtnt. Tlio plaintiff, having learned that the jiroix'ity of the said deceased ha.s come to your hands as executor (or administrator) since the judgment herein to be administered (and that you have withheld and wasted the siuue), intends to apply at the next sitting of this Court, to be holden at wj tlie day of , at tlie hour of , for an order that tlie debt and costs be levied of the goods and chattels of the said decea.sed, if you liave so iiiueh thereof to be administered (ami that if you have not, th^ n that it shall be levied of your own proper goods and chattels), and that the its be levied of youi proper goods and chattels. You aie, thercnjion, hereby summoned to appear said Court, at the time and place aforesaid, to answer timching the matter aforesaid. Dated tJiis day of , 18 . X Y , Clerk. To the above imined defendant In the (35.) ORDER OF REFERENCE. Divisi(m Court in the County of Between A B , Plaintiff, C- D- -, Defendant. By consent of the plaintiff and defendant (or agents, if so) gjven in open Court (oj* produced iu writing to the Court) it is ordered that all matters in »lifference in this cause ((tnd if consented to, add, "and all matters within the jurisdiction of this Court in difference between the said jiarties") be referreii to the award of so as saitl award he made in writing, i-eady to be tlelivered to the parties entitled to the same, on or before the day of ; and that the said award may be entered as the judgment iu this cause (mid any terms that the Judge may prescribe, or the jmrties may agree iipoifi.) Given under the seal of the Court \hi& day of 18 . Clerk. FORMS. 207 {n) AITOINTMENT OF UMPIRF, TO nK KNnOKSF.n. We lu'rol)y appoint , of, &c., iih a thirtl arl)itrator with lis for ilotormiiiiii|i,' tho iiiiitttTH in disputo witliin referrod to us. Or, We her«;l>y iipixtiiit , of, &c.. as an unipin; as to cortun <lifft'rc'nt'es of opinion wliicii have arisen between us as arbitrators of the matters witliin rufcrreil to us. {!>) APPOINTMRMT FOR MEF,TTN(} ON HEFERENCR. , at the (lay of next, at the for proceeding on this reference. , Arbitrator. fn the, &o. B. \ T appoint V. > hour of To (both partien). (c) ENl.AROKMENT TO RK ENHORSEn. I enlarge the time for making my award respecting the matters referred to me by the witVii' order of reference until the day of , 18 . Dated, &c. , Arbitrator. a (36.) AWARD. TVtr awnrd, when endorsed on the onhr, nini/ /»• in the fofhtirinij Form. After hearing and considering tho proofs laid l)efore me (or us) in tiie matt( '" of the witliin reference, and in full determination of the matters to me (oz-us) referred, 1 {or we) do award tli.it the within uanieil A. B. is entitled t(» ri'cover from the within named C. D. • le sum of , together with tlie costs of this suit, and also tlu costs of this reference {or as tin- nisr mini '/« ), and that the same shall be paid by the said V. I), within days, ami that judgment be entered in the within mentioned case accordingly. Dated this day of 18 . Witness. , Arbitrator. (Add affidavit of caption.) :•..;.■ ■^V' [Seal] In the (.37.) SUMMONS TO JUROJIS. Division Court in the County of You are hereby summoned to appear and serve as a Juror in this Court, to be holden at on , at the hour of . Herein fail not at your peril. < riven under the seal of the Court this dav of 18 . X Y , Clerk. To •.'■%;■ ^■^ In the [iS'ea/.] (38.) SUMMONS TO WITNESS. Division Court in the County of Between A— B , Plaintiff, AND — D— C- -, Defendant. You are hereby required to attend at the sittings of the said Court, to lie holden at on the 18 , at the hour of in the fore- •, ,.^^ *;>,.'• '.-tj. ; tit -iji ','• • ' ' f. .' .■ f ■>'. '' » • ;'•■'•;■ v,-^- ■■•</„.•;. ■ .■"• i^'^y.■v'•^,v^ , ■■ ■„'.?' ;v .;.>•;•• -.^i ,? ■ r .. • .» ,'» ♦-■ ;■. ; ■ I ' ,■ -■ . ' ;* .■• '' " ;;■ :,^^'J;v ■•;'■ \ . ^^■^-^:t'^t''^^^ [■ ■ .■;<■> >>\r- ■■■■. I. ■ '^[■'^,^^\-\' '.. ■ •.•- .>-» - • • • •'. ' i. :r' ; ^v ■■■■■■••fir :ii^.- •'»:{•■ . ■^^o■:'•^:^■■*: ■'v■A•■;^^■::.'^ ■'y- ■■y-*vft*^ .■ ■■'■ .■■■,f '''•''.'•■V. ■ ■••'.• 'f ' •:■■.:■■■<.«»,.;.•■... ■'■ [■•■■•, ^^V^' -5^': ::•:"."■ .■ ' -K" I .»T ■■>■■■ . ' ■ '. ■■ ' ■ '< j<*'r^"» ,-• '.' • .. ' • ■■- *'-^ t" • ' • 1 ■f. '-- .> \".'-:-. ■ ■ ' ■ ,.• > ^ i ' ' *■* 7 ■ ,■' i' r--'..*>'5-.. ,.■■■■■■:■ ^i^'v'?*j'u'\'i ■ '■; •• 298 FORMS. noon, to give evidence in the a1)ove cause on behalf of the above-named [and tlien and tlicro to liavo and j)roduce {ntntc par'lriilar docuiui nU required) and all other {)ii2)ur3 relating to the said action, in your custody, possubsion, or i)ower. J (Jiveu under the seal of the Court this day of 18 X Y , Clerk. To (39.) SUMMONS TO WITNESS TO APPEAR BEFORE ARBlTRATOIi, In the Division ( 'ourt in the County of [&al.] Bf.twken A K , Plaintiff, C AM) - D- — , Defi'iidnnt. You are liereby retjuircd to attend before the Arbitrator (or Arbitra- tors) to whom this cause stands referred, at on the day of A.!). 18 , at o'clock of that day, beini; the time and place appointed by the said Arl)itrator for a meeting upon the said retVi - euce, togi\\; evidjuce in the above cause on hehalt' of the above-nanud aud then and there to have and produce (.-.Va/c IIk jiarti-nldr d iniiiK'vtn required) and all other papers relating to the said action, in your custody, possession or jmwer. ( liven under the seal of the Court this day of A.l). 18 To X Y , Clerk. GARNISHEE PROCEEDINGS TO JUDGMENT. In tho I, A- (40.) AFFIDAVIT FOR OUDFR TO GARNISH DEBT. Division (\iurt in the County of Between A B , Plaintiff, ANI> B- -, of the C D , Defendant. in tlie County of the i)l:iinti(l' in the suit (//' 'lie afftdiivit he made hi/ the plaintiff's (dtornei/ or aijent ina'c" tlie neresnar!/ iiltendiun), make oath and say, that judgv.^ent waa recovereti in this case against the above-named defendant on the tlay of A.l>. IS , for the sum of 8 debt ami costs (or occor</i»(; to thejud'jiaint), and that the same remains wholly unsatislied (or that $ part tliereof yet remains unsatislied.) That T have reason vo believe, aud do believe, that E F . residing at within this Province is (or // the perwn indebted to the de.fendtnt In' not Icn'iwn, x't;/ " tliat one or more persons residing in tiiis Province, whom 1 am unahle to name, are") indebted to the defendant in the Bum of § {or if the amoiin' he unknown, saij "in an amount wliioli 1 am uualde to name," for goods sold and dtdiverod by the defendant to the said E F {or othtriviM', aeeordin-j to the nature of the debt souijht to be ifarnished. ) Sworn before mo at the of in the ) County of this dav of A.D. 18 .\ A B- . X ^ V , Clerk. ) FORMS. 209 "■■•'ii SlTllA'rOR. (41.) JUDOE'S ATTACHING ORDER. [Stamp.] In the Division Court in tho County of Between A B , PlauUiif, j J mlgnicnt entered in tlic AND ^ Division Court in the County of C D , Defendant. \ on the d;iy of , A.D. 18 . Amount unsatisfied .^ On applicjvtiim of the plaintifl" and upon reading his ailidavit \<>r "the afli- davit ot A. B, iiis attorney (or 'a.,'ent, ' a-> Ih" cd-n'. mt>/ hi',)] it is ordered tliat all del)ts now owing to the defendant from any pirty in thi.s I'rovineu, whether due, or aecruing due, be and tiie same are hereby attached, to satisfy the jud^Muent iu this cause. Dated the day of A.D 18 (Add Warniv(j an in next Form.) Judge. (42.) WARNING TO GARNISHEE. To D. E., Garnishee. You an; hereby notified that from and after the time of the service of this ("order" or "summtms") on you, all debts due, or accruing due. from you to the above-named C. I)., are attached, ami if you pay the same to any one other than to the person holding the propi-r order to reeiive tlie same, or into Court, you will be liable to repay it, in ease the CJourt or Judge so order. No [Seal.] (43.) SUMMONS TO GARNISHEE AND PRIMARY DEBTOR AFTER JUDCJxMENT. , A.D. 18 . In the Division Court in the County of Between A. B., Primary Creilitor, "^ Judgment recovered on the and I \lay of , A.D. 18 . C. I)., Primary iJebtor, [ in the Division Court in and I the County of . Amount E. F. , (iarnisliee. J nnsati'ilied, !^ You, the above named (Sarnishec and the Primary Dolitor, are hereby sum- moned to appear at the sittings of thi.s ( 'oiirt, t(j be held at on the day of A.D. 18 (or hrfori' flic Jii/i/i' pirsidhuj at on tin daif of A.D. 18 ), at of the cluck in tlie noon, to state and shew whether or not you, the said (lariiit^hce, owe any, and what delit to the above named Pi'imary Debtor, and why you should not pay tlu' same into Court, to the extent due on the al)ove-iianic<l ju<lgmcnt, tu satisfy tlie sanu' ; and take notice, that if y<n\ have any set-off or other statutabU^ di ft nee. as between you and the Primary Debtor, you nnist give notice thereof to the Primary Creditor, six days before the day you are so retpiiieil to appear. Von or any one interested may also shew any other cause why the suitl (lebt should not go to satisfy the said judgment. Dated the day of A.D. 18 . X— Y , Clerk. [fy: ■*•■'•'■ ■■ 1 •' m. :. '■"t-- ^^■.-vfe5.v- . ■ • " ,..■'«■'.■■.■•' -'t' ■•■ •■'< '» • •^^:^ '■• ,'^VA ** . '■' I , . ;,<»■: "A, 4>-.-:. *'♦• • ■ 4.-1 "■*' ••.■"■■• • ■■■ £♦'• -"f"' 300 FORMS. (44.) SUMMONS TO PRIMARY DEBTOR (BEFORE JUDGMENT) AND GARNISHEE. No. , A.D. 18 . In the Division Court in the County of [Seal] BetweenA.B., Primary C^reditor,^^,^^ p^^^^^ ^,^^^^^^ C. D., Primary" Debtor, J-^J'Y"^ ^T *^'' ^^''T'l ' x,,A JJohtor the amount of the annexed account and E. F., Garnishee, {f/hntiff the account or claim in detail.) You, the ai)ove-named Primary Debtor, are hereby ummoned to appear at the sittings of this Court to be held at on the day of A.D. 18 (or at on the day of A.D. 18 , before tlie •Judge then and there presiding), to answer the Primary Creditor, who sues you for the recovery of the annexed claim ; and you, the Garnishee, a-".. required to appear at the same time and place to state and shew whether or not you owe any and what debt to the Primary Debtor, and why you should not pay the same into Court, to the extent of the Primary Creditor's claim in satisfaction thereof ; and take notice, that if either of you have any set-off, or other statutory defence, as between you, or as between the said Primary Debtor and the Primary Creditor, you must give notice of all such defences to the Primary Creditor not less than six days before you are so required to appear. You and all others interestf •' may also shew any other cause why the ilebt owing from the Garnishee shouia not be paid and ap^jlied to satisfy the said claim of the Primary Creditor. Dated the day of A.D. 18 . X Y , Clerk. (45. MINUTE IN PROCEDURE BOOK OF JUDGMENT AGAINST GARNISHEE ON JUDGMENT ALREADY RECOVERED. day of in the Division Judgment entered on the Court in the County of Amount unsatislied, $ On hearing all jjarties [o7' on "hearing the above-named" {the parties appeariii;)}], the above-named having made default, it is adjudged that the Garnishee is indebted to the Primary Debtor in $ now due (or coming due as follows, ) which (or .$ of which) ought to be applied in satisfaction of the said judgment, and that the said Primary Creditor do recover against the (larnishee, for levying whereof execution may 'ssue at any time (or if the debt he not due, or time for paynunt he i/iren, add) after from this date, unless the Garnishee shall sooner pay the same into Court, to satisfy tlie said judgment. Entered the day of A.D. 18 . ."*-V A.,J/„,, (4G.) MINUTE IN PROCEDURE BOOK OF JUDGMENT AGAINST PRIMARY DEBTOR AND AGAINST GARNISHEE. On hearing all parties [or "on hearing the Primary Creditor (or as the case is) the Primary Debtor (or as the case is) having made default,] it is adjudged, 1 st, that the Primary Debtor is indebted to the Primary Creditor in $ and $ costs. 2nd, that the Garnishee is indebted to the Primary 7 -.r FORMS. 301 Debtor in $ , which (if the Oarninhee's dcU he larger than the Primary Creditor'n elam, say, " to the extent of the two tirst mentioned sums,") ought to be ai)plie(l in satisfaction thereof. 3rd. that the Primary Creditor do recover against tlie (iarnishee the said sum of $ in days ((i>s time may be (ficcnfor paymtnt or debt becomen due) in satisfaction as aforesaid. (47.) MINUTE OP JUDGMENT IN FAVOUR OF GARNISHEE. On hearing all parties (or on hearing the Garnishee, the Primary C'reditor having made default), it is adjudged tliat the (Jarnishee is not indebted to the Primary Debtor as '.laimed by the Primary Creditor, and that the Primary Creditor pay the tJarnisliee $ for his costs, to be paid in days. '. ■Il (47 a.) BOND UNDER SEC. 15 (a) OF THE ACT OF 1869. (Commencement and conclusion same as in Replevin bond, condition as follows. } Whereas in a certain garnishee proceeding under the Act 32 Vic. , cap. 23, wherein the said A. B. is Primary Creditor, C. D., Primary Debtor, and E. F., Garnishee, a certain debt of $ due from the garnishee to the Primary Debtor, has been garnished to answer the debt of the Primary Creditor, and whereas the Judge of the said Court, acting under the loth section of the said Act, ordered that upon payment of the said debt by the (tarnishec to the Primary Creditor, security should be given by or on behalf of the Primary Creditor for the repayment thereof into Court by the Primary Creditor. Now, the condition of this obligation is such that if the above bounden A. B. do pay into Court the said debt, in case a proper order shall be made fc)r such repay- ment within five days after notice of such order, then this obligation to be void, else to remain in full force. ■>J^^- * (48,) CLERK'S MEMORANDUM OF NON-APPEARANCE OP GAR- NISHEE (COMMON LAW PROCEDURE ACT, Sec. 296.) Memorandum. I, X. Y., Clerk of the Division Court, in the within order named, attended this day of 18 , at the place within men- tioned, from o'clock in the noon (as the ease may in) till past in the noon (as the ease may be) of tlie same day, and the said J. K. (Qarnislvce) did not appear before me according to the said order. X Y . Clerk. (49.) MEMORANDUM OF ADMISSION OF DEBT WHEN SIGNED BY GARNISHEE (C. L. P. ACT, Sec. 296.) Memorandum, On this day of 18 , the within named (Garnishee) appeared before me according to the within onler, * and admitted that he was and is indebted to the within named G. H. (judyinent debtor-) in the sum of I (if the whole debt be not admitted, add, " and no more.") (If the •^-' (a) Now section 143. ;:■ ;S#V^^^:• i ,■ ■'.;.*-5f-f-,V''^? '^*-;':'vVv^ ■■■'■-' ; ■ '• ■•i', 'X I'V,. ■ ■ '':.:•. •'•.-A'-'.; •','>■.'■• ■ }. ■ .■■ r ■•■, •'. *. |f I- ■ ;,>;».: .-.■^ , ■ ',,•.■ ■ ^'"-"Vi; .'.'■ ■'■,(• *.•; ;•'..'.• I., . ■, • ■•- ; •■; ,*'.?■*■• ■t'.t> :■. . •:-;•■.;:■■,■>*:■ • ■., ••■' .-1 . '«•." •-• ^•':;, ;■■/•■: ■■ I . •• .<.■♦■,•'■'.■;> ,■.-■ ■.»•■» '-^ • ' ■ .,v^::fv .; .;, • ' ^■'* '. '■■ i ■• C ■'!!'. •'■•'■ ' !. 'i'^' :■■■.:■-..;■ >''t'-5<'' , ■•'.iri>-:,,.,'> '*. 'v-'i^. .{■■!. -ivi^' •.. 'i- ■ '-'■'" ■ .''•■■ "(J ■ :•' ■-. ."^*T^*.'r :•' •: I'. r»'>ji*i'».-^!r .;'■•■ ■■■• >•; is 302 F0KM8, Garnlnhec he vnUlnfj to air/ n the admission, add, "and signed the snhjnined admission in my presence.") X Y , (.Jierk. I, J. K. , within named, admit that there is a deht of S {if the. whole, debt Im not. adinittcd, add, "anil no more,") due from me to tho witiiia named (Judijnuut Debtor.) J K (Garimhee'fi nvjnalnre.) (50.) MEMORANDUM, WHIORE GARMISHEE DENIES DEBT (Under Sec. (a) 21)6, 0. L. P. Act). On, &c. (a3 in j)rovions form to tlie asterisk *), and disputes the deht claimed to be due from him t;) the witliin named . (,/iid(/in"id Dchlor.) (If the. GiLnnsh.'c he iinUiiyj to siijit the denial of deht, add, "and signed tho Bubjoined denial of deht in my presence.") X. y. I dispute the debt claimed to be due from me to within named. J K (Garnishee's signature.) MINUTES OF JUDGMENT IN PROCEDURE BOOK. (51.) OF JUDGMENT AGAINST DEFENDANT FOR DEBT OR DAMAGES. Judgment for the plaintiff * for $ and $ costs ; to l)e paid in days (when an excess has been abandoned, add, being " in full discharge of his cause of action set forth in the claim.") * Add " On verdict by jiiiy," // auch be the fact. (52.) OF JUDGMENT UVDER 32 Vic, Cap. 23, Skis. 2 & 3. (h) The defendant, having been served with "Spe'-ial Summons," and particulars of claim, and not disputing same (or "not disputing $ ])art thereof, and plaintiiV l)eing content with judgment for such [)art,") it ia adjudged that plaintiti' recover § for tlcbt, anil $ costs. Dated day of , 18 . (53.) OP JUDGMENT WHERE SOiME DEFENDANTS HAVE BEEN SERVED WITH SPECIAL SUMMONS, AND OTHERS HAVE CONEESSFD. The defendant, C. D., having been served with special summons and particulars of claim, and not disputing $ part thereof, and the plaintiff being content with judgment for sucli part, and the defendants, K. V. and G. H., having confessed the same sum as due to the plaintiff", it is adjudged that tho plaintiff recover § for debt, and $ for costs. (u) licv. Stat. cap. 60, sec. 316. (6) Now section 79. FORMS, 303 (54.) OF JUDGMENT OP NONSUIT OR DISMISSAL FOR WANT OF rilOSEdUTION. Jutlgmont of Nonsuit, " or tlmt tlie cause he iliauiissed " (if roxU, <ic., ordered, add, '•and tho plaintifl' pay .'? tor dt-fondant's costs," or $ for dofciulant's trouble, aud ^ for liis costs ; to bu paid in days). (5;-).) OF JUDliMHNT ON AWARD, Judgment for the plaintiff {or defendant) for S cv^sts {rr for the sum of and costs) pursuant to award ; to bo paiil in days. (,%.) OF JUDGMENT FOR DEFENDANT. Judgment for tho dofendant* {or ff)r the <lofendant for $ $ for his trouble and loss of time, and also $ be paid forthwith). * Add " on verditt by Jury, if such he the fact. costs ; or for his costs ; to . * S>.> ■' ':. ■■■•II '1 (57.) OP JUDGMENT FOR DEFENDANT ON SET-OFF WHERE SET-OFF IN PART SATISFIED. It appearing that the defendant's sft-ofT exoced.s the plaintiff 's claim as proved, by over.iiilOO, it is adjudged that the idaintilf's claim, proved at $ be <liscl)arged, and that the defendant's set-oil' to ."? bo satisfied, and further, tiiat the defendant do recover against the plaintifi $ for his costs to be paid in days. .•-••• J (58.) OP JUDGMENT FOR DEFENDANT FOR BALANCE OF SET-OFF. It appearing that the defendant's set-otf exceeds the plaintifl' 's claim, it is adjudiiod that the plaintiU's (daim, proved at !? be dischargecl, and that the said set-ott' as to that aniduut be satisfied, and further, that as to $ , residue of such set-otV, the defendant have judgment for the same, together with $ for his co.jts ; to be paid in days. (59.) OP ORDINARY JUDfJMENT AGAINST EXECUTOR OR ADMINISTRATOR. Judgment for plaiutiflP for $ and $ costs, to be paid in days, to be levied on the goods ami chattels of the deceased; failing such goods, the costs to be levied of tlie defendant's proper gooils and chattels. (60.) OP JUDGMENT AGAINST AN EXECUTOR OR ADMINIS- TRATOR WHO HAS WASTED ASSETS, Judgment for plaintiff for $ and $ costs, to be paid in days, to bo levied of thu goods and chattels of the deceased ; failing Boch . ■ • ■>-■ - : ■■< ; ■ . , ' Si.-,- ,ii'-'*ti-^' ■• ^*^^- :•.-■•■;.;.•.:« • • > - '"j.i^.. ■ , ;.'■ •■,'-■'■> • ■ •'■ '■ ^, r.!ki' i '■r ■';■•■ »-'-• ■ y^^"' : ■• ■ :'. •;•■■•■ ^■•■'■■ ■'■ ■ ■ ■--J'-^: ■1 l"^- :'f-<^ ;?:,■.:■' '(^^V •■*';^:"i::'*^i:' ■''i' ,• ^•■•?-, .•■-.v\;v- ,.,...- »■ ■:-v-'^'>u- ¥^ ■c'^i' •*'•• * ,1 . ■•;..■ A^^,: - • ■ •* ^.• i ■! .' .■■ ■:;';v*.^ ;. "■.'* J,: ;■.■• ..-^x't-''^; ■ ,u:'.. 'W' ■■^■>'H:;::i ' , ■ .. if V , ■ •■«>••■ .•',■ ' * .' ' 1 ■ ■■■ -.v ;-■■■*;.•■, .* ■' - V/ ; . • ;i. »-. . ;•< . -v/.''''".( ■ V '^ •'*•■»'!.•■..■;••' .>^ ^•»5. '.■• ' ■ r-" • ■■; 'i;*'. •!^*, . ; i^' -f^ ■>.,>■■ 'L; ■ • '.-;':■ k-'-,:i. •i!<-. ■ M^., :?;.,• v.,,-' :■:. ;.. 304 FORMS. goods, then the whole (or the sum of $ anil the said costs) to be levied of the defendant's proper goods and chattels; the defendant having wasted tlie goods of the deceased to that amount. (61.) OF .lUDGMENT AGAINST AN EXECUTOR OR ADMINISTRA- TOR, WHO HAS DENIED HIS KEPHESENTATIVE CHARACTEK, oli PLEADED A RELEASE TO HIMSELF. Judgment for plaintiff for $ and $ costs, to be paid in days, to be levied of the goods and chattels of the deceased ; failing hulIi goods, then to be levied of the defendant's proper goods, the defendant liavirig pleaded a release to himself {or " the defendant having denied his represen- tative character,") and this plea being found against him. (62.) OF JUDGMENT AGAINST AN EXECUTOR OR ADMINISTRA- TOR, WHO ADMITS HIS REPRESENTATIVE CHARACTER, AND DENI» THE DEMAND. The aanie as in onUnary jiKljitient against Executor or Administrator {Form 59.) (63.) OF JUDGMENT AGAINST AN EXECUTOR OR ADMINISTRA- TOR, WHKRE HE ADMITS HIS REPRESENTATIVE CHARACTER, BUT DENIES THE DEMAND, AND ALLEGES TOTAL OR PARTIAL ADMINIS. TRATION ASSETS : AND THE PLAINTIFF PROVES HIS DEMAND, AND THE DEFENDANT PROVES ADMINISTRATION. Judgment for the plaintiti" for $ debt, and also $ costs, to be paid in days ; the plaintilf 's demand, which was denied, having been proved, and full (or partial) administration also having been proved, whicli was denied, the said costs to be levied of the goods and chattels of the deceased ; failing such goods, then of the defendant's proper goods ; the said debt to be levied of the goods and chattels of the deceased, hereafter to come to the defendant's hands to be administered, and ordered that $ tlie costs in proving such administration, be paid by the plaintiff in days. (64.) OF JUDGMENT AGAINST EXECUTOR OR ADMINISTRATOR WHERE THE DEFENDANT ADMITS HIS REPRESENTATIVE CHARACTEK, BUT DENIES THE DEMAND, AND ALLEGES TOTAL OR PARTIAL ADMIN- ISTRATION OF ASSETS: AND THE PLAINTIFF PROVES HIS DEMAND, AND THE DEFENDANT DOES NOT PROVE ADMINISTRATION. Judgment for plaintiff for $ debv, and also $ costs, to be paid in days, to be levied of the goods and chattels of the deceased ; failing such goods, tlien the said costs to be levied of the defendant's proper goods, and the debt to be levied of the goods and chattels of the deceased, hereafter to come to the defendant's hands to be administered, the plaintiff's demand having been proved, which was denied, and administration, which was alleged, not having been proved. imm FORMS. 305 ■••» ^m (65.) OF JUDGMENT AGAINST EXECUTOR OR ADMINISTRATOR, WHO ADMITS HIS REPRESENTATIVE CHABAOTER, AND THE PLAINTIFF'S DF.MAND, BUT ALLEGES A TOTAL OR PARTIAL ADMINISTRATION OK ASSETS, AND PROVES THE ADMINISTRATION. Judgment for plaintiff for $ , to be paid in days ; to be levied of the goods and chattels of the deceased, hereafter to come to the defendant's hands to l)e administered ; the debt not being denied, and full {or partial) administration, which was denied, having been proved, Ordered that the plaintiff pay $ for the defendant's costs in days. (6C.) OP JUDGMENT AGAINST EXECUTOR OR ADMINISTRATOR, WHO ADMITS HIS REPRESENTATIVE CHARACTER, AND THE PLAINTIFF'S DEMAND, BUT ALLEGES A TOTAL OR PARTIAL ADMINISTRATION OF ASSETS, AND DOES NOT PROVE THE ADMINISTRATION. Judgment for ])laintiff for .^ debt, and $ costs, to be paid in days ; full (or partial) administration, which was alleged, and dis- puted, not having been proved, Ordered that the said sums be levied of the goods and chattels of the deceased ; failing such goods, then tlie debt of the goods and chattels, hereafter to come to the defendant's hands to be administered, and the costs to be levied of the defendant's proper goods. (67.) OF JUDGMENT AGAINST EXECUTOR OR ADMINISTRATOR ON DEVASTAVIT AFTER JUDGMENT. Judgment that the defendant has wasted goods and chattels of A. R., deceased, to the sum of | , whereby a judgfhent recovered against him by the plaintiff in the Division ('onrt in the County of , on the day of , 18 , remains unsatisfied ; and that the plaintiff now recover against the defendant the first named sum, and also $ costs ; to be paid in days. (68.) OF JUDGMENT TO REVIVE A JUDGMENT AGAINST AN EXECUTOR. Judgment for the plaintiflF, that he have execution against the defendant, as executor of E. F., deceased, of a judgment of this Court {or of the Division Court, etc.,) whereby the plaintiff, on recovered against the said E. F. in his life-time the sum of $ , to be levied of the goods and chattels of the said deceased, in the hands of the said defendant to be administered. (69.) OF JUDGMENT FOR EXECUTOR TO REVIVE A JUDGMENT. Judgment for plaintiflF, that he have execution against the defendant of a judgment of this Court {or of the Division Court, etc. , ) whereby the said C. D. in his life-time, on recovered against the said defendant the sum of $ 20 ^;t•^.■•^:.i| ■ -w '>■•'■ ;■'• .1 .V- 'V . . ■}uK .'.1^ : SI ■v.- t ■'. ■.' ■■ .-•v. ■ ^-■:fvS-- ■:j'' v.M-:!';v r .f''** >;-.,; .'.•>.• , ; .< • ',.• I. ' ,4-', '< ~ -''.i" ■ . "*■ "■.. '? o »•• % ■■> •■■ •.;^i^■;■'•'.y^^■'•,;v<> ., *. r. I '..■ ■■■■■.: ■■ , '" . ~'^ -v-r-^- V ■ • '<»'■;. .' C ■'.'. ' ■■.•a>: ■"'-'.■■". ^'■'■' "I,' .•.•:v^;\{»,^ .■.■■■• ' -' ■.■^■L ;'''•'•■'•■' I!' . -'''■;»:>'.'■';«,■•."■ '■'.'. I ". ';-. ■•■? ■:■■■ .^\:- i!i, . ■'■v'= .»' .'V ■■■■• ',' t ,.i 306 FORMS. (70.) OF JUDGMENTS IN REPLEVIN. Fm- plaintiff (sarac aa general form of judgiiiunt for plaintiff for datxmj,'o.i »nd costs, No. 51.) For di'fc.ndant in iic.plcvin for rent. Adjudged that the plaintiff do return to the defendant the goods and cliattels (o?" "cattle," .i<a<i«,7 </«" pnrt'truldrn thereof) and pay .§ for coats in days [or, ailjudged that the amount due for rent in arrear from tlic plaintiff to the defen<lant is $ , and that the goods and cliattels, (or "cattle ") were of the value of $ , and liiat the jdaintiffdo in days pay the said sum of .f , and also the sum of .$ for costs of suit. J For dcfcudant in Replevin of ciiUte damatfea, feasant. Adjudged that tho plaintiff do return to the tlcfendant the cattle (ticre, xpi'Cifij the cattle), or do pay in days, the sum of $ which is adjudged as the damages sus- tained by the defendant, and that the plaintiff do pay within the time aforesaid $ for costs. For defendant where Replevin is not for rent nor for damage feasant. Adjudged that the plaintiff do return to the defendant the cattle (or "goods and chattels" (as the rrtse may be) statin;/ the particulars thereof) forthwith (or in days), and that the plaintiff do pay the defendant in ilays, % for costs of suit * and § for damages sustained by the <lefendaut by reason of the issuing of the Writ of Replevin in this cause. *lfno damages arc awarded then omit from last Minute all the Wl "us from the asterisk. (71.) OF ADJUDICATION ON INTERPLEADER. Adjudged that the gooils [or the goods, chattels and moneys, or proceeds of the goods, etc., (as the case may be.) mentioned in the Interpleader Summons [if only for a part of the [foods, etc., add the words, " hereafter mentioned, that ia to say" (here enumerate them)] are (or are not) the property of E. F. (tho Claimant), or that rent to the amount of $ ia due to E. F. (the Clnimaut); Ordered that ^ the costs of this proceeding be paid by (here insert each order as the costs or the, subject in dispute, if any, as the Judije shall have made) in daya. (72.) OF IMPOSITION OF FINE ON A JUROR FOR NON- ATTENDANCE. Adjudged that G. H. was duly summoned to attend this Court now hold«!n aa a Juror ; that he hath made default therein, that he pay a fine of $ for such default, in daya (or forthwith). (73.) OF ORDER FOR IMPOSITION OF FINE FOR CONTEMPT. It is adjudged that E. F. , at the sittings of this Court now holden, in open Court, is guilty of a contempt of the said Court, by wilfully insulting Judge (or Deputy or Acting Judge) of the said Court [or " in view of the Court, by wilfully insulting , Clerk (or Bailiff) of the aaid Court, during his attendance at such Court,") (or " by wilfully interrupting the proceedings of the said Court ")] : And it is ordered, that the said E. F. forthwith pay a fine of $ for such offence, and, in default of payment, be committed to the Common Jail of this County for days, unless such fine, the costa herein, and the expense attending the commitment, be sooner paid. FORMS, 307 (74.) OF IMPOSITION OF FINE ON WITNESS. Adjudged that H. H. was duly summoned to appear as a witnoas, in thin action, at the sittings of this Court here tliis day (and also to produce (ns ihr case tiiay bf)\ that payment (or a tender of payment) of his rea^ionaJile expensefl was ma<le to him, — and that lie did not appear \<ir having a|i])eared, did wil- fully refuse to he sworn, and give evidence in this action [or to jjroduce such, &c.)J (Or Adjudged that H. H., heing hefore this Court, now holden and called upon to give evidence in this cause, did wilfully refuse to he sworn and give evidence.) And further adjudged tliat tlie said H. M. pay a tine of .S for such neglect (or refusnl) in days (or forthwith) ; And that the sura of $ , part of the said line, be paid hy the Clerk to the plaiutitf (w defendant) being the party injured by sueli neglect or refusal. '^■i, ' II In the (75.) POSTPONED JUDCniENT UNDER SEC. 106. Division Court in the County of — , Plaintiff, BETWEIiN A— 0— — B- AND — D- DcfchdaiU. day of At the sitting of this Court held on the day of 18 , at in the said Division, this case came on to be heard, and after the hearing thereof by the Judge in open Court the giving of judgment tlu>rcupon was postponed by the Judge till the day of 18 , at the hour of at the office of the Clerk of this Court ; the case having since been maturely considered by the Judge. It is adjudged, &c. {arcorili));/ tojudijme.nt. ) The Clerk will read this decision to the parties or their agents, if present, and forthwith enter judgment according to the statute in that behalf. Dated, &c. , Judge. (76.) ORDER FOR NEW TRIAL. In the Division Court in the County of Between A- C- -B- AND -D- Plaintiff, Defendant. It is ordered, that the judgment rendered in this cause and all subsequent proceedings be set aside, and anew trial he had Itetween the parties on (set out Ute terms or conditions, if any, on which the order is made. ) Dated ,18 . , Judge. No. In the [Seal.-i EXECUTIONS. (77.) AGAINST GOODS OF DEFENDANT. A.D., 18 . Division Court in the County of Between A B , Plaintiff, AND -D- Defendant. , the plaintiff duly recovered judgment against the Whereas on the day of , A.D. 18 in the said Court, holden in and for said Division, defendant for $ for debt, and $ for costs of suit, which remaiu» unsatisfied (wheti the judgment has been revived, add, "and on the day of A.D. 18 , the said judgment was duly revived,") you are hereby required " ^1 «■■*. J < ■ i'^^: ::m .1 » J W \ i .'■.' [- If '>»iv.*.:; : r ■jL:ft».' ,1; If ■ !*i,.*- ''^'^ •• I ', . 'v-^'.-l-il,':-..-..".".''. ••.-::♦ ?\:. ■'t- ■v>;;^' ;■ .,>' ■ : ' •'•"j^-. ,-. *.. • i.K^i^.V- > ' •*• »,Ti'R.-,'i. ,'/', . .i i^ •V ■*^^y- ■;;;vv 4 . if^ • i,i ■ 308 FOUMS. t(» levy of tlu! goods and cliiittel.s of the defendant in the Haid f^)iinty (n tt exempt from cxc rution), the said nioney.s, amounting togetlier to the .suin of .S and yoiii' lawful fees ; ho that you may havt; the same within thirty days from tin; date hereof, and pay the aanie over to the Clerk of this Court for the plaintitl'. (Jiven under the seal of the (.'ourt this day of A. I). IH X Y , Clerk. To V. W. liailiU" of said Court. JudgnuMit $ Interest Sul.>se([uent eosts Tliis exeeution Levy the sum of $ , and your lawful fvca upon this preeei>t. No. In the [Seal.] (78.) AGAIN.ST GOODS OF PLAINTIFF. , A.D. 18 . Division ( 'onrt in the County of Betwkkn A B , Plaintiff, C- ANIJ -D — , Dcfvndatit. Whereas on the day of A.D. 18 , in said Court, Imlden in and for said Division, judgment M'as given for tlie defendant, and for $ costs (or judgment of di.smissal was given, and ^ for defendant^ trouble, and .'? for eosts), wiiich remains unsatislied — here J'oUdw thf lad form of execulioH lo end, trampo^imj the words '^ plaintiff" and "defendant" where theij occur. (79.) ON JUDGMENT FOR BALANCE OP SET-OFF. No. A.D. 18 . In the Division Court in the County of . [Seal] Between A B , Plaintiff, C- D- -, Defendant. Whereas at the sittings of this Court, holden on the day of , A. D. 18 , at , it was adjudged that the abo\ c - named defendant should recover against the above-named plaintill' the sum oi $ , the residue of his set-otl' exceeding the plaintiff's claim, together with % his costs of suit, which remains unsatisfied, you are hereby •required [conclude as directed in lad form.) m-m '<{."■'<' l|-'-,.-v.^'r.-r,;ir.',. IT- i:^"^ '■'<}/: ': ,^■■^ (80.) EXECUTION UNDER 27 AND 28 Vic. C. 27, (a) where Judgmkni OBTAINED AGAINST A DEFENDANT RESIDING IN A FOBEION CoUNTY, No. A.D. 18 . In the Division Court in the County of [Seal.] (Style of Cause.) Whereas the place of sittings of this Court is nearest to the defendant? residence, and at the sittings of the said Court holden on the day of (a) See section 63, FOKMH. 309 A.D. 18 , in and fnr the siiifl Division, \>y judgment of the said <'()urt the phiintitr rceovered against the defendant, under the provisions of tlie Aet '27 and 'J8 Vie. eap. 'J7 (") § for del)t, with $ for eosts, wliieli said deht and eo.sts remains uUHatisfied, you are lierelty recpiired to levy to levy of th(! gooda and ohattel.s of the defendant (not exempt from exeijution) in the Haid (.'ounty of A or in the County of H (when' the Ai'j'i' iiilant reml.i'.s) the said moneys, &e. (cimrlude an In form 77.) (81.) ON TRANSf^lIPT OF JUDCMKNT FROM OMK COIMIT TO ANOTJlEll. No. A.D. 18 . In the Division Court in the County of liETWEKN A- — — — H , Plaintiff, Whereas on the reeovered in the C day of Division ( AND -D- Difcndatit. , A.D. 18 ourt in tlie < 'oiinty of the plaintiff duly , holden in and for tlie .said Division, judgment again.st the defendant for $ for debt, and § for eosta of suit ( //' tin' jiuhjiiunt was revived, use the follnwiwi words, "and on the day of A.D. 18 the said judgment was duly revived") as appears by a transcript of the entry of .such judgment attested by the seal of the Court, certilied and signed by the Clerk thereof, and sent and addressed to the Clerk of this Division Court, pursuant to the provisions of "The Division ('(»urts Aet ; " and whereas it appears, by ccrtitieate at the foot of the said transcript attached, certilied, signed, sent, and addressed as aforesaid, that the amount unpaid on the said Judgment is .$ , which said transcrijit and certilicate i.s duly entered in the book of this Court, therefore you are hereby required, etc. [eoiielnde as in form 77. (82.) FOR AN EXECUTOR ON JUDGEMENT REVIVED IN HIS FAVOUR. No. A.D. 18 . In the Division Court in the County of [Seal.] Between A B , Executor of C. D., deceased, Plaintiff, AND E ■¥— , Defendant. You arc hereby required to levy of tlie goods and chattels of the defendant (not exempt from execution) in the saiil County of the sum of S , which C. D. in his lifetime in tliis Court {dv in the Division Court, etc.,) on , recovei'ed ag.ainst the defendant for his debt (or damages) and costs, and whereof it was on etc., in this (,'ourt (or the Division Court, etc.,) adjudged that the plaintiff, as executor of the said C. D., should have execution, together with your lawful fees ; so that you may have the same within thirty days after the date hereof, and pay the same over to the <^lerk of this Court for the plaintiff. Given under the seal of the Court this day of , A.D. 18 X Y , Clerk. To V. W., Bailiff of the said Court. Due on Judgment $ Interest Subsequent costs This execution Levy the sum of $ , besides your lawful fees on this precept. (a) Substitute tbe foUuwiug "under the provisions of the Division Courts Act section 63." ;..^ : "'- 1 ■ ■ . ' :\ ■ : ' A. I:- , *"!• '»;■'' '•,:". ••>•; ■■■■ _ ;. r . 4:.P'5^'.* ',■^•■ I ■•'''^•^fe*>"'-r ■♦;■.■■ I' ,i.;:v|-?V.-:-' ■■-■■■'.•• '. .'..' .-•'•0!t. .• .■■:■■' ■}; .i- > V '■' '; - ,- --^H--- ■ ,■ ' ' '.' ^■■.^'. ?.-.r. .- ■ - ■■■':••.*.;.{:.■„.■*•■.■. ■ ■ 'i >^ .; ?■.■•' .* ... !-■»:■•■.!'.*',• > ■■ •■ .■■■■ , . n~ -.■■':•• ■. »•...+.. ■■■.-.. . 310 FORMS. (83.) OF .TUDG..^ENT REVIVED ACJATNST EXPiOUTOR OR A!»MFNI,STRATOU. In tho Division Court in the County of [Seal.] Between A h , Plaintiff, ANI> C D , Executor of E. F,, decciwc^d. D('/('»(l(tnt. You oro hereby commanded (or as before or as often before) to make umJ levy l)y di.stress and sale of the goods and chattels of K. F. , deceased, in thi.> hands of the said defendant, as executor (or administrator) to be administiTed, the sum of , which the phiintitF in this (>ourt (or in the Divi- aion ('ourt, &c.,) on , recovered against the said deceased in hh life- time for the jdaintiff's debt (or damages) and coats, and whereof it was on adjudged in this (!ourt (or in the Division (!ourt, etc.,) that tlie said ])laintill' slu)uld have exeeuti(<n against the said defendant as executor (or administrator) of the said deceased, to be levied of the goods and chattels of the sai<l deceaseil, in the said defeuihint's lunula to be administered, together with the costs of execution herein, and your lawful fees ; so that you have the same within thirty days after the date hereof, and pay the same over to the Clerk of this Court for the plaintid'. Given under the seal of the Court this day of ,18 X Y , Clerk. To V. W., Bailiff of the said Court. Judguu^nt $ Interest Subsecjuent costs This execution Levy the sum of $ , besides your own lawful fci * upon this precept. N, B. — E.r('cuflonH upon (he jitdifnu-nU in other cases against Executors may (>« drawn from this For>ii, with the reijiiisite alterations. No. In the [Seal] (84.) AGAINST GOODS OF TESTATOR. A.D. 18 . Division Court in the County of Between A B , Plaintiff, AND -D- Whereas on the day of recovered, in the said Court holden the said defendant as executor (or of $ , for a certain debt of the goods and chattels of the . tc be levied of the defendant's pumper g- •)ds and chattels, which saiil debt and coats were ordered to be paid . , a day now past, and remain unsatislied: These are therefore to command you, forthwith to make ami levy, by distress and sale of the goods and chattels, which tc thu , Executor or Administrator •' decL ased. Defendant. . A.D. It> , the plaintiff duly ., said Divifsion, judgment against .rator) of E. , deceased, the sum II $ i< costs, to be levied ased; f.iiling suci\ goods, the costs FOKMS. 311 property of the aaid K. F in liis lifo-tinie, in tlie handn of the defcinlant to be H(liiiiiiiHtorc(l in tlic Hiiid (Sxiiity of , tlu^ Haiil <leht anil (Mists, ntiiDuiitin^ together to the huiii of $ , together witii the costs of this execution, if the defenchint have so much thereof in his hands to lie a(hninistereil ; and if he hath not so much tliereof in his haixla to he aihiiinistered, then that you levy of tlio proper goods and chattels of the defendant, in tlie said ("ounty of not exempt from execution, the said moneys and y<iur lawful fees, ao that you nnvy have the same witiiin tiiirty ihiys after the date hereof, ami pay the saino over to the Clerk of this (.'ourt for the plaintilt'. X Y , Clerk. To V. W., BailifiF of the said Court. Judgment $ Interest Sulisecjuent costs This Execution Levy the sum of $ , besides your lawful fees upon this precept. •i .. • . • , •• |C*''>^;;. ^;>'j-. i '*.•. (85.) IN REPLEVIN AGAINST PLAINTIFF WHEN RETURN OF GOODS AUJUIMiED WITU 1)AMA(JE.S AND COSTS. No. , A.D. 18 . In the Division Court in the County of r «?«/,/ 1 Between Plaintiff, Defendant. Upon hearing this action of Replevin at a Court holden at in and for the said Division, on the day of , A.D. 18 , it was adjudged that tiie plaintiff do return to tlie defendant the cattle (or the goods or chattels, an the. case maji he, sfafhii/ jxirtirnldrs Ihei'eoJ',) in days , (a« the ca--ie may he), *and also that the jilaintiff' should pay to the defendant the sum of $ for damages;* {(iiiiit the irurdu helwcen the asterisk's when there are no damarjes awarded, but the jiidijiiieut is iwreli/ fur a return and for costs) ; and also the sum of $ for costs of suit ; and the plaintiff has not returned to the said defendant the cattle (or the said goods and chattels,) (or paid the said damages and costs), these are, therefore, to require and order that without delay you cause the cattle (or goods and chattels) aforesaid to be returned to the defendant, and that you levy of the goods and chattels of the plaintiff, in the said County of (not exempt from execution), the said moneys, amounting together to the sum of $ , and your lawful fees, so that you may have the same within thirty days after the date hereof, and pay the same over to the Clerk of this Court for the })laintiff. Given under the Seal of the Court this day of A.D. 18 To V. W., Bailiff of the said Court. Judgment $ X Y , Interest Clerk. Subsequent costs This execution Levy the sum of $ besides your lawful fees on tius precept. ■■:,.. I. '^vS- •t" rflt i: ■ *y* ' ' ^1 li^i-^^'-^:^':'-. .,*.'.' '■••'••■ - ' ■ I ■ >'J.''"' .'* ■ ■■''■.'. ' _. ••?>.. ^i;-k.'..- • ,-. 1.: f>^:'V> i^ .; [/ ■.>\ ■ , ■■-. -t. >■'•'■;■ I> . '■'.■•• rv ■.■;.•■ ,<^V r.. . ^ • . » • ... • » i. . . ■'■,.t..f • • . 312 (86.) FORMS. AGAINST GARNISHEE ON JUDGMENT ALREADY RECOVERED. In the Division Court in triu County of Between A- C- [Scal] E- -B— ANU D— AND . F— Plaintiff, Defendant, Garnishee. Judgment recovered on tho day of , A.D. 18 , in the Division Court in the County of Amount unsatisfied, $ day of A.D. 18 , $ Adjudged against the Garnishee on the To V. W., Bailiff of the said Court. You arc hereby required to levy of the goods and chattels of the Garnishee (not exempt from execution), $ money owing from him to tlie defendant, and which has been attached to satisfy the judgment in this case ; an<l what you shall have done herein return with this writ within thirty days after the date hereof. Dated the day of A.D. 18 . X Y , Clerk. (87.) AGAINST GARNISHEE ON JIJDGMI<:NT RECOVERED AGAINST HIM AND PRIMARY DEBTOR. In the Between A- C- E- Di, vision Court in the County of - B , Primary Creditor, AND — , Priman/ Debtc/r, AND — , Oanmhee. D- F- Amount adjudged due from the Primary Debtor to the IVimary Creditor the day of A.D. 18 , for del)t, $ for costs, $ [Seal] Total sum, $ Amount adjudgerl to the Primary CVeditor for money owing from the Garnishee, the day of A.D. 18 . $ To V. W., Bailiff of the said Court. You are hereby required to levy of the goods and chattels of the Garnishee, (ncc exempt from execution), $ money owing from him to the Primary Debtor, and which hiis l)ei;'- ^Ijudged to the Primary Creditor, to satisfy hi* said claim against the i^imary Debtor, and what you shall have dona herein return with this writ within thirty days after the date hereof. Dated tha day of 18 X Y , Clerk. (88.) AGAINST PRIMARY DEBTOR AND GARNISHEE. No. A.D. 18 . In the DivisiiHi Court in the County of Between A B Primari/ Creditor, [Seal.] AND C D , Primari/ Debtor^ AND E F , Gamiehee^ ^^^^m FORMS. 313 Amount adjudged due from the Primary Debtor to the Primary Creditor, the day of , A.D 18 , for debts. .$ For costs $ Total debt and costs $ — Amount adjudged to the Primary Creditor for money owing from $ the (iarnisliee, the day of A.D. 18 $ To V. W., Bailiff of the said Court. You ai-e hereby re(iuired to levy of the goods and chattels of the Primary Debtor in the said County of K (not exempt from execution), .^ above adjudged to be due to the Primary Creditor from tlie I'rimary Debtor, together with the costs of this precept, and your lawful fees in executing tlie same. Ami if so much goods and chattels of the I'rimary Debtor be not found in the said County as will satisfy the said judgment, then tliat you levy of the goods and cliattels of the (Jarnishee in the sai<l County (not exempt from execution) $ (or so much tiiereof as niay be necessary to satisfy the said judgment) money owing from tiio < Jarnishee to the Primary Debtor, and which lias been adjudged to the Primary Creditor ; and what you shall have done herein, return with tliis writ within thirty days after the date hereof. Dated the day of , A.D. 18 . X- — Y , Clerk. (39.) FOR GARNISHEE'S COSTS. No , A.D. 18 . In the Division Coui-t in the County of Between A B , Primary Cr<'dUur, {Seal] C- E- AND - D- AND -F~ -, Primary Debtor, -, Garninhee. To V. W., Bailiff of the said Court. Whereas at the sittings of tliis Court liolden on the day of 18 , at , it was adjudged that the (iarnishee was not indebted to the Primary Deitor, as claimed by the Primary (!reditor, and judgment was given for the Oarnisliee against the Primary ( Creditor, for § for his costs to ))e paid at a day now ])ast, and the Primary Creditor has not paid the same ; You are hereby re([uired to levy of the goods and chattels of the above- named Primary Creditor in the said County of (not excmi)t from execution,) ^jj! for his said < sts, together with the costs of this precej)t and your lawful fees in executing the same, and what you shall have done herein return with this writ within thirty days after the date hereof. Dated this day of 18 . X Y , Clerk. (90.) EXECUTION under 29.1hi) anl> 29(]tii SEc^I0^i (a) of thb Com. Law 1*ho. Act. Division Court in the County of In the matter of the suit in the Court of (Queen's Bench, or Common i'leas, or County Court of the County of ). Between A B , Plaintiff, In the [Seal] C- E- AND ■ D- AND - F- ", Difemlant, -, Garnishee. V. W., BailiflF of the said Division Court. You are hereby recjuired to levy of the goods and chattels of the above- named (Jarnishee, in the said County of (not exempt from execution) \'f '. ." I ■•' . ■■-■ ,:; J ■ (()) Now 8t!ctij)iis 312-310 of liev. iStat. cap, iJO. "M %■»''■ ■ ■•'■ '■ '. • ../■■■*•-■ '•i.V.' ' :5"'v,j::'^;,t.,lv; 1' ;■■ :^•;:%•>^,^.■^•; .r ■„>»:♦. •/•■^•■■'- . t'.-f': .^'^''■|• '■■» I' •■■ -'i-v "•■•'■•' ^ •■•'•'■ [.-■■; -.ni .'. •;.•■:•'■.. '• ■ ' ■'f ■■^' J\ ••"■-' *■.'■•, ,>";w : *.■• y.r^' I' , '.!?* V •' ' s IP* 1^^ , ^ ' ■''.:v.;- ,.J----i. ,',.• £ ' t \..ii'-^.-' *•'•*'.•'.'•"»;.■, ■ ll' ' >T,.'^V ,• * ■ .:/. ...v. •■„♦.■. • ■' ■••-. t. •• ' > ■';:-.'■.''• I ' ' ' • ■ :^:^:'h' ( ' ' -^-A*^> . f, •'•„--.r*v •■■■'■ . ■. ■ .«;.■■■*'.. ' '- ' ^ ^'' ■ , ' •'4 ■ • .' . - ■ »■■";■ '*■ . ■ K » ■•^••^'■r,'.i K •feV'-:^V 1,1' il.' ♦!>'■*•- , 314 FORMS. $ money, owing from him to the defendant, which has been attiiclicd to satisfy tlie judgment of the said (Imrt in tlie said cause, and which, by the order of the Jmlge of the County (Jourt of the said County of , dated the diy of , A. D. 18 , the said Garnishee was ordered to ])iiv to the ]»]aintitl'. And what you shall have done herein, return with this writ within tliirty days after the date hereof. Dated the day A.D. 18 Clerk. (91.) EXECUTION AGAINST THR GOODS OF CLAIMANT ON INTERPLEADER. In the Division Court in the County of No. A.D. 18 . Bktwern a B , Plaintiff, AND [Seal] C D , Defendant, AND E F , Claimant. Whereas on the day of A. D. 18 , the ]il;vintin" duly recovered in said Court, holden in and for said Division, judgment iitjainst tlie defendant for $ dcl)t, and ^ for cost of suit which remained unsatisfied (tohfiii the jitd'jnint has hecn rcvim'd add the follow'unj irurd.t, "and on the day of , A. I J. 186 , the said judgment was didy levived,") and the said moneys not being paid, an execution issued against the goods and chattels of the defendant, under wliich certain godds aiul chattels were seized. \lf thr inter ])Ieader was in respect to ijond't alUu-ht'il, oiiiit all the prerediti<i oJt<r thf word "rJiiitnttiif," and my hi Heit therfof ^i.v folUnr.s, "whereas a writ of attachmeot was sued out of this (!ourt (or issued by a Justice of the Peace). under which certain goods and chattels, etc., were seized and attached "] tn which the above-named claimant made claim, and which claim came oil" to be heard and decided, upon intei'jdeadcr sumtnous, at a sitting of this Court held on at , anil at sueli last njsutiooed Court it was adjudged, touching the saitl claim, that the g(»ods [(or the goods, chattels and moneys, or proceedw of the gooiis, etc. (a.s- the ease ma if Ih')] mentioned in the interpleader summons [if oiil/i for a part of the <joods, etc., add the iror<l--< "hereafter mentioned," that is tit Kay {herr enumerate than) were not the property of E. F. (the claimant) ; and it wius ordered that the sum of § , the costs of that proceeding, should be paid by tlu: said claimant to the (^lerk in days, for the use of the 8ai(l plaintiff; and whereas the said sum of .^ has not been paid, pur- suant to the said order, you are liL-reby requested to levy of the goods and chattels <tf tiie defendant, in the said ('ounty of (not exemi)t from (!xecuti<m) the said sum of ijf and your lawful fees, so that you may have the same within thirty days after the <late hereof, and pay the same over to the Clerk of this Court for the plaintill". Given under the seal of this Court this day of A.D. 18 X Y , Clerk. To V. W., Bailiff of said Court. Judgment $ Interest Subsecpient This execution Levy $ , besides your own lawful ioca upon this precept. VHiP FOKMS. SIT) 3^^ (92.) EXECUTION UNDER THE ACT RESPECTING LINE FENCL-S AND WATElt-COUKSES. In the No. [Seal.] Division Court in the County of A.D. 18 . Between A B , AND -I>- Plainliff, Defendant. (a) Wliereas under the provisions of an Act of the Legislature of the late Province of Canvla, '-'2 Vic., chaiJ. oT, entitled "An Act respecting Line Fences and Water-courses," A. B., of the Township of , C. D., of the same place , and E. F., of tlie !?aine place , three fence viewers duly ai^pointed for the saiil Township of in the County of having been suiuniouod by (i. H., a .Justice of the I'cace in and for the County of and residing within the said Township, to ascertain tlie amount payable by the above named det'endant to the above named plaintiil", "for making his share of a certain fence," "water-course," or " ditch," (a* the cane nimj he) in the said Township of did on this day of A.D. 18 , make their determination between the said ])huutifF and defendant, of and concerning tlie same, anil of and concerning the amount, tlie said defendant should pay the i)laintitl' as follows (h"i-e xtatc tin' dwnril of Ihf fence- vie uu-m), and duly reporteil the same in writing under their hands, to the sai<l G. H., on the day and year aforesaid , and the said C. H. did, on the day of in the year aforesaid, transmit the said deter- mination to the Clei'k of this Court, being the Division Court having jurisdic- tion over that part of the said Township of in which the said fence is situated, and did certify therewith that tlie costs of him, the .said (i. H., with the fencj-viewers', bailiff s and witnesses' fees, aimmnted to the sum of J^ which the defendant by the said determination was ordered to })ay. And whereas the defend mt did not pay to the plaintiff, within forty days from the date of the said iletermination the said sum of ."? and costs. and the same I'cmain wholly unsatislied, now, therefore, at the request of the plaintiff, and in pursuance of the said Act, you are hereby required to levy of the goods and chattels of the defendant, in the said CJounty (not e.\empt from execution), the said moneys, amounting together to the sum of $ and your lawful fees ; so that you may have the same moneys thirty days after the date hereof, and to jiay over the same to the Clerk of this Court, for the plaintiil'. Given under the seal of the Court this To V. W., Bailiff o: taesaid Court. Judgment I Interest Subsequent costs This execution Levy this sum of S ful fees upon this precept. day of X-^^ Y- .1). 18 Clerk , besides yonr law- (a) Substitute " Tlio pnivisinns ofttio Uovised Statutes of O.itario, ciiaiiturs 19S and 199 and amuudiuj; Add." Iduu also 40 Vic, cap. 8, aeo. 58, and cap. 29. ^:v.f^ V';'" '. -.A*:-'.-'': I'- ' • •c'^-vV.- ■ ,., *^ - ■ •"■ t' *■ [■ . r.--'. ■'•i" ■■.■#4 ' -r,-r.^-..v V-\ •■;' . 1 i.t ,f,'f'f' ', • ;l ."'i.i.ri'i :'' > ;■ '^ ^iv^.v- ., > ■« . .'" -■' •' * j% ■' >■-'. ; .' ',* y, .,^"' "l ■!^i . /v ■i 1 . 316 FORMS. (1)3.) WARRANT OF COMMITMENT IN DEFAULT OF APPEARANCE. No , A.D. 18 . In the Division Court in the County of [Seal.] liKTWEKN A B , Plaintijf, C- AI.D -D- Dcfendant. W - V,-- /(»■■'• ."V To V. W., Bailiff of the said Court, and to all C-onstables and Peace Ofhceri; of the County of and to the Jailor of the Common .Jail of the said County of Whereas at the sittings of tliis Court (<ir of the Division Court for, etc.,) lioldeii at , on the day of 18 , tlie ])laintiH', by the judgiucnt of the said Court, in a eertain suit wherein the Court li;id jurisdiction, recovered against tlie defendant the sunif)f .^ , for his dol)t (or <laniages) and costs of suit, wliich were ordered to he paid at a day now past ; and whereas tlie defendant, not having made such ])ayment ujion application of tlie plaintiff, a summons was didy issued from and out of tliis Court, against the defendant, by which summons tlie defendant was reciuired to appear at the sittings of this Court, holden at on, etc., to answer such fjuestions as miglit be put to him, touching (sit out a.i in the ■■iiiiiiniDits) ;* and whereas it was duly proved, on oath, at the said last mentioned sittings of this (_!ourt, that the defendant was personally served with tlie sa,u\ sum- mons ; and wliereas the defendant did not attend, as re(juired by such summons, nor allege any sufKcient cause for not so attending ; and whereas it appeared to the satisfaction of the .Judge that such non-attendance was wilful (or, "whereas the defendant has failed to attend after l)eing twice so summoned.") And thereupon it was ordered by the Judge of this Court that the defendant should be committed, for the term of days, to the Common Jail of the said County, according to the form of the statute in that behalf, or until he should be discharged by due course of law ; these .are therefore to reijuire you, the said Bailiff, and others, to take the defendant, and to deliver him to tlie •lailer of the Common .Tail of the said County: And you, the said .Failcr, are liereby re(juired to receive the defendant, and him safely to keep in tlu: said Common Jail for the term of days from the arrest under this warrant, or until he shall be sooner discharged by due course of law. according to the provisions of the Act of Parliament in that behalf ; for whicli this shall he your sulHcient warrant. Given under the seal of the Court this day of A.D. If. X Y , Clerk. Debt ami costs up to the time of the delivering of this warrant for execution . . , $ (94.) WMIRANT OF COMMITMENT AFTER EX.\MINATION. In the Division Court in the County of (rt.s iti liiM Form, daini to the (istcri.-^k,* conrltnh' as fnUoirx): And whereas the defemlant, having duly appi'ared at the said Court ])ur- Buant to the said sununons, was e.xamineil touching the said matters ; and whereas it apj)eared, on such examination, that [/icre innert the pnrticuhtr ground of rout initiuenl In th>' liimjiKii/c (^s('(/ in the Statute, e. (j.) "C. D., the defendant, 'incurred the debt (or liability), tlie subject of this action under false i)retences" ("/• " by means of fraud or breach of trust")] ; and tliorcupnn it was ordered by the said Juilge that the defendant should be committed fur the term of days to the (!oi<imon .Jail of the said County, according to the form of the statute in that behalf, or until he should be discharged by due FORMS. 317 '«t course of law : These arc therefore to require you, the said Bailiff and others, to take the said defendant, and to deliver him to tlie .Jailer of tlie ("omnion Jail of tlie waid County ; and you, the said Jailer, are hereby re(iuiri.(l to receive the defendant, and him safely keep in the said Conunon dail, for the term of days from the an est under this warrant, or until he sliall he sooner discharged Ijy due course of law, according to the provisions of tlie Act of Parli nent in that hehalf ; for which tliis sliall be your sufiicient warrant. Given under the seal of the Court this day of A.I). IS X Y , Clerk. Debt and costs up to the time of the delivery of this warrant of execution $ (95.) WARRANT TO LEVY FINE UPON WITNESS. In the Division Court in the County of [Seal.] Between A B , Plaintiff, AND C U , Defendant. Whereas at the sittings of this (.'ourt, Indden on at , it was adjudged that H. H. , was duly summoned to ap[)car as a witness in this action, at a sittings of this Court [and also to produce (<ik tlte rnxi' niai/li<')] ; that pay- ment (ur a tender of payment) of his reasonable expeiiHes was made to him, and that he <lid not appear [or, having appeared, did willfully rtfuse to lie sworn and give evidence in this action (*>/• to produce sucii, &c. )]: [if/u-rr a "v7/((*v /"*( Court refittex to ijirr erhlcnrc Inxteod of Jorcijobtti, rvimiirnri', " Wiiereas 11. H., being before the Court at a sittings thereof, and called upon to give cvidciu'c in the above cause, ilid wilfully refuse to be sworn and give uviilence ") ; and tiiere- upon it was adjudged that the said H. H. should pay a fine of S for such neglect lur refusal) in days {or fortlnvith) ; and whereas the said If. H. hath not made such payment : These arc tiiercfore (as before or as often liefoi'c) to coniniand you forthwitli to make and levy by disstress and sale of tlie goods and chattels of the said If. If. (not excm[it from execution) the said line and costs, amounting together to tlu; sum of .^ , and your law- ful fees ; so tliat you may have the same within thirty days after the date hereof, and pay the same over to the Clerk of the Court. Given under the seal of the Court this day of 18 By order of the Judge. X Y , Clerk, To V. W., Bailiff of the said Court. Fine $ Costs Execution Levy the sum of $ , and your own lawful fees. (96.) WARRANT OF COMMITMENT FOR CONTEMPT IN OPEN COURT. In the Division (])ourt in the County of To V. W., Bailiff of the said Court, and to all Constables and Peace Officers of the County of , and to the Jailer of the Common Jail of the said County of Wliereas at the sittings of this Court, holden on at , it waa adjudged that E. F, did then and there, in open Court, wilfully insult me, ■. ■ \ '.'I. ;>.,: ^^v m- -n < ;■■.'»!• il!* •Tr.'.- .1 • ' ■■■.<• ; X 318 FORMS. f '^^:kr> ■'•■•»■".•■ ■ ' '•" ;■ • • J"'' ■'■.' ■ V ■ hr'', ■•'*■'?■> •. '',' ?" » •//•( . ,1 ' '•'.•• •- ft;, h ' I • < ■ ■*l r ■ . -■ •■; ■ . . • "^ •;,.«; ■ A, ^'j, . , '" J 1 ■ -- V- ■ 1 .•■■...%.' , . I ■ • ,■ I** TV- » ' .■■■ • '1= , Judgo {or DcjMity or acting Judge) of the said Court fo?' did, in view oi the C()i;rt, wilfully insult , Clerk ((jr Bailiff ) of the aaid ('oiirt, during his iitten<liinee at such Court {or did unlawfully interrupt th(^ j)r(i- ceedings of the said Court)]; and it was ordere<l that the saiil E. F. should forthwith p;iy a fine of $ , for such offence, and in ilel'aultof payment, be committed to the Common Jail of the ('ounty of for dayH ; and whereas the said 1']. l'\ did not pay the said fine, in ohedience to the said iirder : These are therefore to re((uire you, the saiil Bailifl' and others, to take the said I'l F., if ho shall l>e found within the said (bounty of , and deliver him to the said Jailer of the ('onnnon Jail of the said ('ounty of : And you, the said Jailer, arc hereby required to "eceive the said E. F., and lilm safely keej) in the Common Jail aforesaid, for the term of days from the a.;'rest under this warrant, unless the said fine and costs, the costs amount- ing to If , and also the exi)enscs attending the commitraent, amount- ing together to the sum of .$ , be sooner paid. (Jriven under my hand and seal this day of , 18 . [L.S.] , Judge. Sealed with the seal of the Court. [^ -^ ] X Y , Clerk, No. (97.) CERTIFICATE FOR DISCHARCE OF A PARTY FROM CUSTODY. , A.D. 18 . Division Court in the County of Between A B , Plaintiff, In the C- AND — D- -, Defendant. I, X- -, certify that the defendant, now in your custody under Warrant of Commitment in this cause, has, since the issuing of tiic said warrant, satisfied the moneys for the non-payment whereof he was so com- mitted, together with all costs and charges in respect thereof ; and the said defendant may, in respect of such warrant, be forthwith discharged from and out of your custody. Given under the seal of the Court this day of ,18 [Seal.-i X Y , Clerk. To the Jailer of the Common Jail of the County of County of (here insert the County.) TRANSCRIPTS. (98.) TRANSCRIPT TO ANOTHER DIVISION COURT OP JUDGMENT UNDER THE ACT OF 1869. (a) In the Division Court in the County of Between A B , Plaintiff, AND c On the day of B- AND - D- , Defendant. ,18 , a " Special SvTnnums" [Seal.] requiring the defendant to answer the plaintiff's claim for a debt or money demand, amounting to § , was issued out of this (a) Now scutioU' IGl. wm FORMS, 319 •' ■■ •. rifnirt in this cause, with the particulars of the plaintiff's claim thereto attached ; en the day of , IS , the defendant \v;ih didy served with i* copy of tliu said suiniiions, and pai'ticuiars of claim, and tlic defendant did not leave witli the (Jlcrk a notiee, as letpiired hy tiie statute in that hcbalf, tliat ho diHi)nted the i)laintin"3 claim, or any part thereof [or an the cane TIKI)/ he) ; tlie said summons and i)artienl;ir.s, with an allidavit of the due service of each, having l)een liled, linal jud'^'ment was entered on the day of , A.I). 18 , l)y the (Jlerk, as follows: {/inr. cupi/ inimite of jutlffinaiit, aixl ij jail<iiiU'iit. rciuncil .state the J'iict, a.s hi Form. 100). An execution issued against tlie goods of the ilefendant ou the day of 18 , and was returned ou the day of , 18 , nulla bona (or as the ciwi; iiuvj lie). I'ursuant to the ])rovision3 of the Division Courts Act, I, X Y , Clerk of ti\e said (Jourt, do certify tliat the ahove trauscrijit is correct, and duly taken from tlie I'rocedure Hook of the said (Jourt, and that judgment in the above cause was recovered at the date above stated, viz., the day of 18 ; and further, that the amount unpaid on said judgment is $ , as stated below. Oivcn under the seal of the said Court the day of A.D. 18 . Amount of judgment $ Debt Costs Total 9 Adilitional costs X Y , do Interest Clerk. Total § Paid Amount due .§ To li S , Clerk of Division Court. County of (99.) TRANSCRIPT TO COUNTY COURT OF JUDGMENT UNDER THE ACT OF 1869. (a) In the Division Court in the County of Between A B , Plaintiff, C- ANI) -D- -, Defendant. The following proceedings were had: — On the day of 18 , a " Special Summons," [Sexil.] requiring the defendant to answer the plaintiff's claim for a debt or money demaml, amounting to S , was issued out of this Court in tbie cause, acconling to the statute in that behalf, with the particulaiB of the plaintiff's claim thereto attached ; on the day of 18 , the defendant was personally served with a copy of the said summons, and particulars of claim, and the defendant did not leave with tlie CJ'erk a notice, aa required by the statute in tliat beiialf, that he disputed the jdaintiff'a claim, or any part thereof (or an the. «(«■ 7nay be) ; the said summons and particulars, with an atHdavit of the due service of each, having been fded, final judgment was entered on the day of 18 , by the Clerk, aa followd : (here, copy minute o/judijinent, and if judgment revived state the fact. •-. ^.:^~' (aj Nuw aectiun 103. !y.-iS;, s .f: ■• ;' ■'*.'■; •»:■ • .' • >*, ' tr •• • 1 .' .' ■' ' *V .' i ! ■ ■ prv;;-N*;'i .■■■■■ •<> ■•, '•• • ;■■ 'ii:.;' ■ . 320 FORMS. an in Form 100). On the day of 18 , a writ of cxcrntinri on tlio siiid jiidgiiient was duly issued (concliuh an in hid Form, oiiiifliny thr addrci.i to thr Vh'vk). (N./i. -T/if iilxirc Form iii'ii/ he oi/npfii/ trlf/i thr vcrcumrii n/tcrafion for <( Tra)i.icrijd to (he Count i/ Court of d Jut/i/incnt upon urdinari/ JSumnionn.) (100.) TKANSCRllT OF JUDPtMENT ON OllDINAUY SUMMONS FROM ONE DIVISION COURT TO ANOTHER. In tlic Division Court in tlie County of Transcript of tlio entry of a judgTiiciit rccox'cred on tlie day of A. D. 18 , in said Court, lioldon in and for said Division in a suit numbnrcd , A.D. 18 . Betwekn a li , Plaintiff, [Seal.] AND C 1) , Drfvnilant. Judgment for plaintiff for .$ dol)t, ami $ costs of suit ; e.vecution issued on the day of , A.D. 18 , .and retu.-ed on tiic day of , A.D. 18 (luf Amount of judgment. Debt, .§ Costs, § S Additional costs, i Total, § Amount paid, % IS 18 Total paid, % Amt. due, .§ xtittc thr return.) (If the judiimcnt was rrinrn/, nd<l the fo/lou'luij n)ari/.s, "and on the day of , A.D. 18 , the said judgment was (l\dy revived.") Pursuant to tlie provisions of " Tlu' Division Courts Act." I, X Y -, f!lerk of the said Division Court, do certify that the above transcript is correct, and duly taken from tiu; Procedure l>ook of tiie said Court, and that judgment in tlie above cause wa.s recovered at tiie date above stated, viz., the day of A.D. IS ; and further, that the amount unpaid on saiti judgment is $ , as stated in tlie margin hertiof. (Jiven under the seal of the said Court thia To Clerk of the Division Court in the ( 'ounty of day of X Y- A.D. 18 -, Clerk. In the NOTICES. (101.) OF TRIAL BY JURY AND NEW TRIAL. Division Court in the County of Between A B , Plaintiff, C- D- -, Defendant. Take notice, that this cause will be trc.l by a jury, the plaintiff {or defend- ant) having demanded a jury therein, or lalie notice that the Judge has ordered a new trial upon payment of costs (or wi ;h costs to abide the event, or as the case may l)e), and has ordered the next tri.il to be had before a jury (or as tin cafie wail he). Dated this day of A.D. 18 Yours, &., X y , Clerk. To The above-named plaintiff (or " defendant)." No. in the FORMS. 002.) FOR CLERK'S NOTICES TO THE PLAINTIFF. , A.D. 18 . 321 Division Court in the Couuty of Between Attn Plaintiff, DifdiddiiL has given a coiitessiitu for tho full 1st. Take notice that the defendant amount of your claim. C)r '2n(L * l)isi»uto8 your claim, or does not dispute your claim. Or 3rd. * Disputes the following items of your claim, vi/>., {/n re i^prrift/ the itemn xfl j'iirth in the de/cndant'i^ Hoticc to the (.'/< rk), and admits tho residue, and you are recjuired fortliwith to say in writijig if you are willing to take judgment for the part admitted. Or 4th, * \Vill on tlie trial claim a set-oft' against your demand, and the particulars tliereof are hereunto annexed. Or r)th, * Will on tlie trial insist that your claim is harred l»y tlie Statute of Limitations {or othrr statutorij dr/vHre not hirdii i^jiirifiid). Or (>tli. * Will on the trial insist that he is discharged from payment of yonr cl.aim by the provisions of the Insolvent Act. Or 7th, * Will admit on the trial the Jst, Dth, J 1th (or other) items of your particulars of account to be correct. Or Sth. * Will admit on the trial the signing [or endorsement] of tlie j)romiss<>ry nctte [or bill of exchange] sued upon {or an the cd.sc ma)/ he), and <leniea the residue of your claim. Or 9th. * Has paid into Court the sum of .S , together with .$ , for costs of suit incurred uji to the day of such payment in inW satisfaction of your cl.aim, which will be paid to you upon demand at my office ; and all pro- ceedings in the action will be stayed, unless within three days after you receive this notice you signify to me your intentiim to proceed for the remainder of yourdemautl; audio ease you cither accept or refuse the same in full, you nnist give a written notice to that cH'ect ti» nie witliin the saiil three days, otherwise you will be lialdc to pay to the defendant sucli subsequent costs as he may incur in this action. Or 10th. * Has pk'a<led that he duly tendered to and ofTcred to pay you be- fore tliis action was brought the sum of % in full satisfaction of your claim, and has tiled a plea of such tender in my office, and ])aid that sum into Court, pursuant to the 87th section ('() of the Division Courts Act, and tliat sum will be paid to you, less one dollar, in case you do not wish to further prosecute your suit, and all proceedings in the action will be stayed, unless you signify to me, within three days from tlie tinu; you recei\'e this notice, your intention to proceed for your demand, ntitwitlistanding such plea. Or 11th. * Will on the trial insist that you arc not a duly certificated Attorney or Solicitor. Or llith. * Will insist upon the defem.e at the trial that tho note (or bill) you have sued upon, and which forms (i)art of) the jjarticulais of your claim, was not duly stamj>ed (or th.at the stamp was not duly cancelled) according to law. Or 13th, * Will insist as a defence upon the trial that you have not given the proper notice of action before suit to which the defendant is entitled as a Justice of the Peace {or Peace Officer) under Con. Stat, of IJ. C cap. 126, {li) or as a Bailiff of the Division Court, under the l!>3rd section (c) of the Division Courts Act. (a) Forthe words " 87tli section," insert in notice the words "86th section." (h) Kuad Iluvised Statutes, chapter 73. («| Read 2;il8t aectiou. 21 ''•: ■^ i, »' I..' ■ ■■ •'-'V ■ l/';'',•'.•^^v,.■l!:\^t^ *,•• '■'Iw .> ■V. I' . '■*■:.: CV'f,,* .'. Vv-.:yj X}-- Kti ' • i'^it ' JL ;■ ■>■" «•*■ ■■ ■ ■' .•?22 FOR MS. Or I4th, *J)efen(la tliiH .ictinii under the jirotorting clansca of tho Divialnn <'(,urts Act, viz., sections 1!)'J, WV.i, l!*;*), 1J)(), 197 and I!»8. (a) Dated the day of A.D. 18 X Y , Clerk. To The above-named plaiutifT. (103.) DEFENDANT'S NOTICES TO THE PLAINTIFF Oi: Cf.ERK. No. , A.D. 18 . In the Division Court in the County of Betwken a B , Plamtif, C- ANCi — D- -, Di'fi'ndatit. Take notice that I will admit, on the trial, the first, second and third iteniH of the plaintiff's particulars to bo correct [or the si^fnin^ and endorsement of the promissory n<ite sued upon (or a.s' the mne nuiij l>i',)\ or I'ake notice that I dispute the claim of the ]>laintirt' in full, (or here s/Mcijif alt or anil of the <jroiiwl» of defence, net forth in the form for Clerk's notke.s.) Dated the day of , A.D. 18 Yours, etc., D , Defendant. To the Plaintiff (or to the Clerk of said Court). (104.) CONFESSION OF DEBT AFTER SUIT COMMENCED. In the Divisifm Court in the County ot Uetweek a B , Plnintif, C- AND -D- -, Defendant. \ acknowledge that I am indebted to the plaintiff in the sum of .$ .•tiul consent that judgment for that amount and costs may be entered against me in this cause, according to the practice of the Court. Dated the day of ,18 . C D .Defendant. Witness , Clerk (or Bailiff). (105.) BOND ON SUPERSEDE.A.S TO WARRANT OF ATTACHMENT In the Division Court in the County of Between A • B , Plaintiff, C- ANl> -- D- -, Defendant. Know all men by these presents, that we, C. D. of {innert place of re-mlenrr and addition], the above defendant, E, F. of, &c., and G. H. of, &c., are, ami each of us is, jointly and severally held and firmly bound to A. B. of, &e., tiic above plaintiff, in the sum of $ , to be paid to the said plaintiff', \m certain attorney, executors, administrators, and assigns, for which paynuint. well and truly to be made, we bind ourselves, our heirs, executors, and administrators, and each and every of us binds himself, his heirs, executois. and administrators firmly by these presents. Sealed with our respective seals, and dated the day of , 18 • (a) Read sections 230, 231, 226, 227, 228 and 229, respectively. « FORMS. 323 Wliprt-afi tho aliovc-natncfl pl.iintifF liatli sued nut of tlio said (^(Uirt (or from n .lustice of i\w. I'cikm!) a wai'iaiit of attauliun'iit agaiiiHt tlio goods ami cliatteli* of tilt: (Icftiidaiit, for the aum of , ami uikIcm- and hy virtue of tho said Jittaciiiui'iit, oirtaiii j^oods uud chattels of the defendant, to wit: {xpirifi/ propirlji si'izvtl) liftve heen seized and attaeliid ; and the defemlant desires that the said warrant Ke superseded, and the property so attaeiied restoroil to him umler the provisions of the 'J(t!»th seetiun ((0 of tlie Division ( 'oiirts Act. Now the condition of this nhligation is sueli, tiiat if thi: said defendant, liis heirs, executors, or administrators, do and siiall, in the event of the claim in the said cause I»eing ])roved, and judgmt'ut i>eing recovered therei-n, as in other eases where j>roce(!dings have heen commenced against the jierson, ]iay the same, or pay tl>e value of the said property, so taken and seized as aforesaid, to the plaintiff, his exeeutttra or administrators, or produce hucIi property, wlienever thertito reipiired, to satisfy such judgment: Then this (thligatiun to he void, else to remain in full force and virtue. Sealed and delivered ) Jj" [[• [j'jj (Add uffiilarit of cuption.) (106.) In the AFFIDAVITS AND OATIIt^. AFFfDAVIT i)V SKKVICF-: OF OKDINAIIV SU.MMONa, Division Court iu the County of Bei'weev a H , Plaintiff, C- -1) and E- — F , Dffetidantn. I, V. W., liailifT of the Division (!onrt in tlie ('ounty of {or "of the said (!ourt"') make o.atli and say, that I diil on the day of , A.D. 18 , duly serve each of the above deiendants {<ir if hut ow .ffri'pd, stall' " ( !, D., one of the defendants,") with a true eojiy of tlu; ■•luuexed summons and statement of claim, hy delivering the same i)erson!illy to e;ieh of the said defendants (or //' Inif one xeri'cd, "to ( '. D., one of the said defendants") (or if llw scrricc tea's not pirmmnl, Hale /low and oit irhoni .•<i'rrid, see 1). t'. Act, wee. 77), (/') and that I necessarily travelled miles to make such service. Sworn, &c. V— 1— W , Hailiff. (Or, this form via;/ be used when the n[lidarit is endorsed on the summons.) ] swear that this summons and claim therewith were served hy me on the tlay of hy delivering a true co))y of both, j)ersou;illj', to the defendant [or to the wife or servant of the defendant, or to a grown up person heiug an inmate of and at the defendant's dwelling), and that 1 neces- sarily travelled miles to do so. Sworn, etc. V W , Bailiff. (107.) AFFIDAVIT OF SKRVrCl!: OF "SPECIAL SUMMONS." In the Division (Jourt in the t 'ounty of Between A B , Plaintiff. C- AND -J) -, Defendant. I, V. W., Bailiff of the Division Court in the said County of (or of the Court) make oath and say, that I did, on the day of (a) Insert "200th aectioa.' (6) See section 72. -i:.^. H. i I • 'li ' ' i» ' .. ;'■ '' 1' ,•;♦ Sill /"•'^"•.••»> " •■■■■..'\w . *■ .', ■ -V,- frt ii'.'r' • ■ /'■• ■ '"•• ,' ,'1 •»•• •;- ,1 ;• \* 324 FORMS. 18 , duly Hcn'o the ahovc-immed dcfeiulant with n true copy n( the Sunt moiiH, Notices and W.'iniiugH therein, and the ]>arti( idars of elaini tlierewith in this eaii.se, hy deliveriiijj; the name i>erH(inaily to the said defendant, (or /'/ thf Ki ri'ii'r iniH iKif /M'ruDii'i/, xlitlf hitir iiiiil on whom .si rri'tl, see I>. < '. Act, {n) Hec. 77), and tliat 1 neeessarily travelled niiles to make HUch serviee. Sworn before ine at ) tliis day of 18 . V V. W., Bailiff. Clerk. ) {Or, thixfitrin muji he iixtt/'ir/iDi tin (i(fiilnrit in fmlnrifd on the f'ltiiiminio.) T swear that tliis Sununona and tlie Notieea and \Varninj,'s therein, and the particulars of claim therewith, were duly served by nie on the day of A. 1>. 18 , by delivering a true e<»py of each to Mio defendant |H.-i8<>nally, (or if /III' nerrirc cvjs not /h r/tonol, .itdtr how tnnl on trho,n iirriil, see ['>. ('. Act. sue. 77), ('() and tliat 1 necessarily travelled miles tt> etleet »ueh service. Sworn before me at J this day of 18 . V Clerk. S V. W., Bailiff. (108.) AFFIDAVIT OF EXECUTION OF CONFESSION. In the Division (!ourt in the County of Between A H , Plaintiff, D- -, Defendant. I, Ocrk (w Bailiff) of the Division Court in the County of [or of the .said Court) make oath and say, that I saw the ai)(>ve (or anncxeil eonffeasion) duly executed by the defendant, and that I am a .subscribing* witiiess thereto, and that 1 have not received, and am not to receive, aiiytiiiug from the plaintiil' or defendant, or any other person, except my lawful fees, for taking such confession, and that 1 have no interest in the demand sought t-o be recovered in this action. X. Y. (or V. W.) Sworn before me, Ac, In the (109.) AFFIDAVIT OF EXECUTION (CAPTION). Division Court in the County of Between A B , Plaintiff, C- AND -D- -, Defendant. I, 0. P., of the, etc. make oath and say, tliat on the day o< A.D. IS , I was present and saw C. H. and K. L. (rt.s the ca»e way he) daly sign and execute the annexed award (or bond, or other instrument). That the names G. H. and K. L. at the foot the of said award {or an the ran( may he) are of the proper handwriting of the said G. H. and K. L., and that the name O. P. subscribed to the same as the witness thereto is my proper handwriting. Sworn, etc. 0. P. (a) Now section 72, FOKMH. 32n (110.) FOHMS OK OATH, kr. {it) T(» a witiUHs at tlu* trial wlio .swears ujioii tlii' l?i)»le : "Tho evidence ymi sliall give to tlie Court (and Jury wworn), to\i( liiii^; the matters in quention hitween tlie partiis, .shall be the truth, the wh' »e truth, and nothing hut the truth. So In//) you (iwl." {h) To a witnesH who »wear.s with uplil'U'd huid : Add to the foregoing after the last word '\rutli," "anil this you do swear in the presence of the everliving ( iod, and us you ahall an.swer to (iod at tin- great judgment day. Su lirl/t i/oii HdiI." (c) To a Jew : He iit to l)e directed to cover his head, the l'entat«!uch is to Ih' opened and place<l hefon; him ; tlien proceed as in the lirst form, <inly make use of the name ^^Jihonih " instead of "d'oi/." (r/) To a Qmiker, Mencmist, or Tunker, or other {(crson allowed l)y law t<' affirm : T\w witness in to be directed to repeat his name after the ( 'lerk, ami the following: "1, K. L., do .sideinnly, sincerely and truly deelare and atiirni that I a,m one of the Society called (.Quakers" {nr <».s ////■ (v/.vr mai/ L ), after which, the allJrmant, repeating his name, "1, K. L., ilo solenndy, sincerely and truly declare antl atHrin that the evidence 1 shall give to this Court touching the matters in tiuestion," &c. (e) To an interpreter (where witness cannot speak English, or is deaf and ilumb) : " You shall truly interpret netween the Court (the Jury), the parties in this cause, and the witness produce«l. So fitljj i/ou Hoil.'' (/) To a witness sworn on Voire Dire: " You shall true answers nnike to such (|uestions as shall bo jiut to you touching your interest in the event (»f this cause. So Itilp i/ou (Unl." (;/) To Jury called by j»artieH : "You and each of you shall well and truly try the matters in difference between the parties, do justice between them according to the best (»L||jour .skill and ability, aud a true verdict give according to the evidence. mJ^'''!' i/ou Gufl. " iJI (A) To Jury called by the Judge : -^T " You and each of you shall well and truly try the facts controvctred in fchis cause between the i)artie8, aud a true verdict give according to the evidence. So help you G'utL" (») To a defendant who appears u]»ou a judgment summons : "You shall true answers make to all such ([ucstions as shall Ik; put to you toucliiag the subject upon which you have been now summoned to appear for examination, ami what you shall state re.spectiiig the same shall be the truth, the whole truth, and nothing but the truth. So liflp yoti OoU." {j) To the officer who conducts a retiring Juror out of Court : " You shall retire with such Jurors as have leave of absence from this Court ; you shall not speak to them youraelf in relation to the subject of this trial, nor suffer any person to speak to them, and y(»u shall return with thein without nnneceesary delay. ;S'y hi-lp you Ooil." {k) To the officer, when the Jury retire to consider their verdict : " You shall keep every person sworn on this Jury in some private and con- venient place without meat or drink ; you shall not suli'er any per&on to speak to them, or sjjeak to them yourself, except to ask them whether they nave agreed on their verdict. So /wlp you Hod. ' {I) To a deponent or affirmant swearing to an affidavit or affirmation : "You do swear (or affirm) that the contents of this affidavit {or afhrmation), trt which you have subscribed your name (or made your mark), are just and true. -V 1^ ''t'l'JL ^i: :^^ . \ V'-^ :■ 326 FORMS. .S^o hi'f/i ifoii (7i>d." {Or, "and so you solemnly, aiucerely ami truly tleclare ami ftttinu.") (m) OATH TO nR ADMINISTERF.n TO WITNK.:S BY AUIilTRATOR OR VMKIRK. 'I'lii' (jviMciice wliirh y<»u sliall give before mo as ar))itrat(>r (or niiiiiire) toiuli- iiig tile matters in dilferei"" in tin's referenee sliall be the truth, the whole truth, ;ui<l untiling but the truth. So hvlp yott (linl. (//) Jl'UAT TO AKKrDAVrr «Y II.I.lTKIiATK DKPUNENT. Sworn by theab(»V"*^ named dtpi<ncnt, A, H., at , in the County «f on , and I certify that the atlida\ it was lii-st read in my presenee ti> .xaid A. H., will! .seemed jterfeetly to umlerstand the same, and wioto liis siguaturv [or made hia mark.) tliereto iu my presenee. X Y , Clerk, etc., {,Vi' im (i« cine may bet. (o) AFFIK.M.VTIO.V HY yCAKF.RS, KTC, AND Jl'UAT THERETO. (Court and style of oause\. I, A. 15.. of . itt;., do si>len\uly, sincerely and truly deelare an<< atlirm, that I am one of tlie Society tailed Quakers {or Menonists, Tunker^. IJiiitas Fratrum or .Moravians, as tfic ctixc tiinif ttr), and 1 ilo also solemnly, sincerely, and truly ileehu'eand iUlirm us follows, that is to say (alab' (h<'j'nct!<K Solemidy alliriiUHl at , 1 A.B. in llie County ((f , > on , before me. ) X Y , Cleri: .£v. ((/'•• ai till c"*i; iin'!/ fte). In thu (111.) AFFIDAVIT OF .n\STlFlCATIOiN'. Divioion Court in the Couuty of Ffaiutif, Beiween AND DvJ^Hilaiit. Wc (C. n. and F. F., of, &e. ), the sureties in the anue.xed bond nanic<?, do severtilly make oath and say, as follows : First : I, dejionent C. 1>., for myself, make oath and say, that I am a h )lder, ri'siding at , and that I am \\<iith pro{K;rty to the amount ot $ over and alnive what will jtay my just debts. SeconiUy : 1, deponent 11. \'\, for myself, make oath and siiy, that I am ;i hohler, residing at , ..iid that I am worth property to the amouikt of ijj over aud above what will pay my just debts. C D . E F Tlu! abcve-named C. D. ami E. F. were severally sworn before me at in the Uou vty of , the day of A. I). 18 X Y , Clerk, ('. ■' .-. \ FOUMS. 327 (112.) AFFIDAVIT OF DISBURSEMKNTS (a) TO SEVEIIAL VVITN ESSES. In tlku Division Court in the County of Between A B , Plaintiff. C AND D- — , Jji'j'i tlifiUlt. 1, A. B., of the above plaintiff {or C. I)., the above defemlant, or E. F., agent for tlie above ])hiintiff or defendant), make oath and say : — Ist. That tlie several persona whost; ni.JiU'.s are niciitioiird in the tirst <;'<lunin of the schedule at tlie foot hereof wej-e nt;ee.ssary and material \vituis>-es mi my behalf {or on l)ehalf of the .said plaintitf <ir ilel'eiidant), and attended at the 8ittiiij,'!s of thi.s < 'ourt on the day of as \s itne.^.se.s on my behalf [or on l)ehalf f)f the said defendant or plaintiff'), and that they did not attend as witnesses in any other canse ; {if nt/imri-'^r, ntntf tin' furls). '2nd. That the .said witnesses neeessarily travelled, in going to the .said Court, the niindier of nules respeetivi'ly mentioned in tigure.s in the second eohunn of the said schedule opposite to the names of each of the said witnesses respectively. ;^rd. That tin; several and res))eetivi! sums of money mentiomid in ligures in the third C(»lumn of the said schedule, opposite to the names of the said witnesses, respectively, have been i)iiid '>y nu^ {or by tiie plaintifl' or <lefen- dant) to the said witntsses, respectively, as in the said schedule set forth, for their attendance and travel as witnesses in this cause. A. B. Sworn before me at this itay of 18 . X Y , Clerk. 8CHKI)';LE REKKRKEn TO IN THE FOREl.olN(i AFFIDAVIT. (d) Im order to t'ltitic ii party tn a cause, tu witness fees, it must lie »liewii tliiit lie ultiinleil ««ilely for the imiposi' 111' j,'i\ iii^ evidence cm lii.'< own Ixliiill'. and not fur Ilie |pnr|i'.se nf KU|er inteii<l:n;{ the cause: lUiuun v. /Inrhcr. IS Q. It. .IsS ; h'hnrer v. Carilinr. ;t (', It N. S. I^.^ ; Miiffiltt V. I'l-cntirr. t! 1'. K. :):i ; see. SS, nute (i) ; Hmrd.U v, A ii-.tr,ilia n Xdv. C- , ;i K & It. 90.*), ;«/■ l.iird Caiupliell. C .J. I'fV that purpose the atlhlavit of oislmi>eiiieiils sluuild coiilaiii au udditiuiuU duu^e, which iiiuy be iu the.su wurd^ : " 4ili. That 1 »uh u uecessitry und iimteriuj •M TT :■.••••■■■:;■■■' If- •.'.';■«'•• ": I. 1* , 1 •i^- I •.:'K--; ■ .» ■' • ■' !' •' 328 FORMS. (113.)— AFFIDAVIT FOR REVIVAI. OF JLlXlMENT. lu tlie Division Court in the County of Be'iwee.v a B , Ftaintiff, C — AND - D -. Di'fcndant. I, A. R., of tlif ir{ in the Coi.iity of , yeoman (if the iifilifnrif. hi' mailfi (>if the />/iiiiit![l''f< aftunicif or nijenl with the neces^tary tiUer- titloii), make oatli and say as foUows : lat. On the day of , A.D, 18 , I recovered a jutl>,'ineiit of tliiH ( "otirt against tiu; iil)(>ve- named defendant for $ »!eht, and .^ costs of suit. 2nd. No part of said nionc3'H so recovered has lieen paid or satisfied, and tin said judj^jncnt remains in fidl force (<>/• "the :niin of , part only of the- said nioneys, lias hi-cu pai<l, ami the jnd^nieiit remains in full force a to tht residue of the said intineys so recoveretl thei-eby.") .^rd. I Inr "the said \)laintifr,") am entitled to have ex. , hIuhi said judgment, and to is.sue executiou tkcremxm (for the sum ot $ verily believe. Swf>ru, etc. of tlu- >as I t'Uiifss 111 my own 'wlialf (in the trial of fli-is {Musf. .tint I attcnid'il inM hum- •■♦iif'KO'nn iriv liflmlf on s.iiil tii.il ; tliiit I iillciiilcil s.iiit triiil snli'Iv fi>r lid' piiriiimc ot tj'viii;^ siii-l. t'Vidfiii'c, anil not ;h a witiirss in .iiiv ntlin 1 use or m.itti'i' wli;it. never, or for ativ otficr ri';»soi whatsoever, mi'l I woiilil not huve atti-nd'Mi saiil sittiii;;s execiit to ({jvc sjinl evlilene' order to do so [ nei^'ssarilv travellt^l Will ri tlie affidavit is »m.i" i>v li ajient the aliove form ean iji.-ily I"' adajited. Tin .Jmlj^e eoidd. inde|iei\ili.ntly of th.s, ohl.-r defendant a snni of inonev for hi; tronlile and ,itlendai\c e. nniler sei lion I.M. As witnesses should !-• allowiMl, ami IIjc ainoiiid of tli.ir fees, ari' inat'ers in ttif discretion ol thi' Clerk . Sh (Inn v. N. i iinl. 1 jioul. 411, H. Itr. sulijeet to revision ti,v ttie .fiidi.'e under section :is The nvneral rule is todisiillo*- the ev|iensesot witln-ssesic'jeetr'l hy tin' .fud^e at ilii- triiil liilllo vtlii V. Kfiiinirl.'i , ITi ('. H. L'L'.s, :iiid the same rule aplni'S to ;i witness rejei'ted hy an arFiiti-itor III. Hie iaet of witnesses not Ik'Hi;; ciilleil il llie trial is no j,'i-ouiid for (Hsnllowini,' IIm ir t'Xpfitses, I'lovichd the ( lerk is satislied theii atteiidaine was /va.sv.irfiWi/ necessary Mmisin. V. Ilaniii I , ."i fS< 111 t, 411). ■' The eosls of ill witnesses wili he allowed whom a (>rudeiit attoriM'y, liavin^ regard to llie interests of his ellent, would havi! l>rou>,'lit, thou^'h thev ntay ik.I hav' liei^ii ealleil, or the jiiry mav liave n IV.si'd to aet U|ioii their eviii'iiee, ui;iiit;s in I'ltheniise it w;is iimdniissilde or Inaiipiii ahle to any issue iii«>ii whii h the party has siieect <led : " I.iish's ' ir the stiile of Ihe i alise Im- altered. Vrnet. , :hd Kil., .s<Ki IShould any admissions l,e n)a reinlerint; certain witnesses uiiiici es,sa!y. the [linty who siihponaecl theti) must make leas/ui alilc etiorts to ]iic\e|il their atfitidanc Hiil'lfin. their ex|ienses will not l>c allowed: A'h*iil How! '.Ill; limit v. 'rinrmiis. ^> .tiir V. W. 7n!». A wifi>es,s who d<.<'S not anu nntil after the cause is (tis|«nsed of is not projn'riy cliar(»enMe as a witiie.ss in the cause /•V.v»r V. Star/, Hi (' U. 'Jls. The Clerk should n..t allow iinythinn nii.re than the siin aciualfii i-nid to » witness : lititrlijf. v. Hnil. '-> ('. M. .c K. 'J')H Tin- iiinlcniililii of a witiies- is a cjiiestioii for the Clerk, siilji'ct to review l.y th' .'in!^'*' . iia(liiu-»>i v. Kriimnili. nie true criteiioii of taxation ap|«'ir to U-. whcthei thccideiK'e is necessary for the ji,irt> •lyrir at rh' liiif ■</ !lii- trill/ }fiiltlitiift V. /,i'r<>/i //, 11 K\- .tll witnesses must he imiil tn-fon taxation : lliiiii v I. tsiirr, 114 C. C, U. ;t57. If is suhinitted that wlurc .i ].i(1.1ic otfh or in ch.irj;i of docnmciits for will li tic is resiionsiMe attends as a witness hi his piililio capacity under i rMvisioii Conil ^uhjuena, and iii relation |o m itlers (inin+'ctcd with his otHce, !,<■ slnnild not Im allowcct ,iiiy iiioi. than an onliiiary wiJiic ss It may !«• that he slnMild lie allowed j; I i day il he atttudt«l under Su|i.rior Court suhponu: In n Xrl.-nm, 2(1ian Cham. ■-'.I'-'. Ttx' eii^uj,'! lit of a witness who was a Senator of the lloniiition and a menilM'r id' the lAcciitive t.'uiiliei! t liis cluties at Ottawa, when the Seiiiite w,is in sissioii, was diM nicil sutTii ■ nt excuse for not nil' n pidciirini; his attendance, aiicl j;cn»l ground for putting oil the h' irilig of .» I'e.i'ifl' : llfes \ Attji. rilv lyit, - Ch. Ch.im ".sii. Whci. a party to a suit c.ills the r,|i|Misitf party le is ii . ...... ..I., a. ..I 1... i.i.. ....^........j . !#..;.•%' /'.-/.. Ilk IT f^ li 'I'll MS... r..,.f ^.i'* .......... .ti ludecl hv his .inswers : .Wirr v. C)^ry. 10 U. C. H. .'l-'l. llie fact of ir»>ciiev clii to (I witness for his atteudanee h.iviiie; licin set siH ag-iii;st expeiwoi im in icil l.y the sneeessfn; jKirty in ismveying hiin to Court and keeping hiiii whih' tliere, is mi insiitftc-ient payment Oro.>-'.s v. Ihin-rll 'J'.> I. .1 Kx. 4T:t. !f the witnesses have not >>eeii n'liinllji paid, the .ludg« iild prohttlily order the sums swoin to li.ive Imjcii pi rofuudud: Trent v. llnnmiu, % D. It 1<. Ml ; 8««: sjuoUoiui '^i auU M> ami alluwod by the OUtlr., tu U; FORMS. 329 (111.) BILL OF COSTS. Upo.v a Claim for say $20. Upnti Spi'dal SiDinnmis to Jiu/ijiik nt internl. Clerk's Fees — Reeeivinij claim, tfee ;?0 ] Issuin<^ Spceiiil .Siimiaoiis '25 Copies of I'niccss and Claim 2i) Atlidavit (if Service and Oath 20 Entering Bailiffs Ueturn () <»5 Notice of Admission 1 1 > P>nteriiiir final .ludi^ment (i 'J5 Postages 115 Bailiff'sFees— Service of Summons o 10 Attending to make return and proving .... 010 (a) Fee Fund, entering, Ac, lUe. ; hearing and order, :ioe .... 040 6th Oct., 186 .—Taxed costs at >il 80 X Y . Clerk. Upom Claim kor say -^fiO, Drfexded, Tried anu .IrmiMEVT E.ntered. ( lerk's Fees— Receiving claim, Ac ijo 10 Issuing Special Summons, itc <• lio Copy of Process and Claim <» !!0 AtVulavit of Service and Oath 'JO Entering IJailitf's Return n (i.") Summons to Witness, loc. ; 2 copies, 10c. . . n 20 Entering Notice of I )efeiice 15 Notice to Plaintiff and postage <• !5 Entering Judgment 25 liuilifT'sFci'.-j — Service of Siunmons, 20c; mileage 20c 40 Attending to Return and Proof lu Service iSummons on ^S■itnesses (> 20 Mileage 50 Dutie. at Trial 05 (a) Fee Fund — Entering, »te (i in lleuriiig and Order 1 'M\ $4 70 Allowed Witnesses 2 no Oct. 18 .—Taxed costs at HUfi 70 X V , Clerk. (rt; Foe Fund moneys abolished l)y 37 Vic. cap. 7, sec. 00; ate aUo Uuli' Jo'J. i-v*.'* -.*(■■■.•■ } .■■•' ■'. ; j<; •••• • ■', . •! .:... T..,v. .■■ ;■: ;'.■ V •'•»• '■•A,, •.'■.i» •■••.'■•,.' ■ ' v>^:--; ■■ ', ■■■.V'";" «.•'■;'•'. .«f^-'-. ;. ' v., ■ •■•fV'; . . ■•"•;:r • x-. ■ " . ■!•■.« ■ 330 KOttMS. (lir).)-CLKRK'S RiyrilRN OF EMOLUMENTS. llF.Ti'iiN of X Y , ("'lerk (tf tlie iJivi.siou ('(Hirt in tlio (-'mnity .if , of all Fees and Knioluments fmra lirst day of to the ilay of 18 , both days iiiclusivu, made iii pursuaim of "The Upper Canada Division (Courts Act,'" section 41. (a). ON WHAT. KtM'.civinj,' cliiiiii, iiiiiiilifriii;; ami cntiTiiiR in ProciMiurc Itodk .... Is.siiiii^' .siiiiiiiicjiis, witli iici('s>' iry i Nut cxi'ri/lin^' ijio J IK i| ices llici-ciili, 111- ,Ill(l,:;liii-lit ■ Kxifcdiii.; .•«:•.;()' SlimilliiPIrt ( Kxic.'.lii!;,' .'*|)()| <Kiir ".Spccijil Siiiiiiiioii.-; ' with «,iriiiii;,'.s .siilijuiiitil. Siimiiioiis in ; ri'lilfvm (II' iuti'iiilt'^iilt r, or iiiiiler the giiiiiislii'i! cliiuscs, Scuiits •^Ktia. ) ♦ Aiiiyiif imnis.s, cr c^iiiii, iir si'i-iill ^ N..t cvi't'ciliiiij; 920 ■ or iiilis'T iMiic:- rrijiiiicd lnr .svrviir - KxciTcdn:,' ,«t2(i ' or ti'aia.siiils>iMii t" Jiiil,i.'i'. rarji , . . ( Kxrcriliiit; 8(10 ^Wlic'ic tlic cliiiiii (ir set (ifV cxcicds 11 fnli.is nf ICd winds in Icnj^'tli, I t'lir cvci'y aildilimial fulin .'• cents, il' a Unwed liy the .liiil^;e.) I Siinmiiirm tii witnesses, witli uiiy iiuiuber of names therein For every cniiy tu .serve t)rawin;< every iieeessaiy at1idit\ il , and adininistei in,:,' nath (When exi-eedin;.' li t'oliiis ill leiij,'lh, & eeiit.s (or every addiliuiial folio if all.uved liy Ih.' .Ilid;;e.) I Knlerm;; H.iilitl's reUnii (o )H'oeess, or J>l(f,L;e'.s order Kul/'riiij,' iioiiii' c,r sei ciif, idea of jiaynient or otiier (hdi iwe re(|uir- iiiK Untile t'l Ihe jdaiiililf, oi' ijotiecof adiiiisNtoii im to (daim .. .. 'r.iiiiiig (.•iiiirtssioii orjinij^meiit Kvi'ry notice reijirvecl to he ;;iveii hy Clerk to any oarty to a eaii.sel or |irocccdin;^, i . t.- Hie .)iid};c in resiK'ct to I he same, and niailin;;! Klit<'.rinj.' every jiid^'iicii; , or onh'r made ;il the liianii,:,', or linai order II ade liy tlie .llel^e, or lilial iild;;liielil cilleied liy Clerk .. .. j Snniiiioij fur ia( h .liiryiiian, when, e.illuil by the parties Returniii^ .Indie's ,Iiiry Order "f refereiiee, attaehiiij^'irder, or other order drawn and entered! by Clerk Trunsrripi of Jiid;,';iieiil (iiii ler sec l;«t or ir_') (h) Kvery writ id execiilioii, w.uralit of i Xot excecdinj; S'JO altichmeMt. or warrant for arrest^ Kxceediiii; 8-0 of deluiijileiit ( I'lxi ee liiii; $«iU Kve.ry boi;d, ulc'ii neees-saii, im hiding' allidavil of juslilieation.. .. Neees.-.ai V entries made in tli(; debv attachment book in each case (in all*. Transiiiillini,' paiurs for serviee to aiiotlu'r divisimi or to .Indue, on a]i|.llraliPii to liini, iiKdintiiin the necessary entries, but not incliiilin.:,' |ii>:>ta^"s llc.eeiviii„' |i.i|iirs from aieilhi-r .livision foi service eiitcriiiK the Kanie, liiindin^' t.i the iJaililf, rec.ivin;; his rcliirii and transmittiii),' 8anie SuHreheS I. X Y — , aliovo iiauieil, m.'dic oath and s.ay that the fore^joiii^ Ittiturn I'oiitains ii full .and corret't statcmtiit, in esiTV i)artii'idaf, to the lust '►f my kiiowk'ilj.;v! and lielicf, of the Fees and Fnidhiinent^ of my Olficc, received or receivable on Ijusiuess done during the period above mentioned. X Y , Clerk. Sworn liofore me at in tlie County of , tiiis day of 18 , (a.) Now .sec. 4'.'. (b) Insert " under set;. 101 or lo5.' \:^r FORMS. 3.>l s. I ("niirt ill tln! ay of ti. ill pursuiiiH ( ("). Uatk. Am'nt. $(i II) •-'() (1 .'id U 40 Of) II II) 1) 1.^ U 'M 10 II 10 ll.'> :;o 05 1) 14 10 10 -JS 10 I) -.'5 \ II 1.0 '>!> MO 40 50 50 15 '.'O :!0 10 tlio forcgoiiij: ir, to till' lii.st tf my Oiliic, iiii'nti(»iic><l. — , Clerk. if 18 . I- lu5." (116.)— LIST OK UNCLAIMED .MONEYS VEKIFIEI). List of unclaimed moneys paid into Court, or to me as Clerk tlieirof, wliicli remain unclaimed f(jr six years, ending on the 3hv day of December last pa*<t. For \vli>iri or cli wlm.si' arc'cjiiiiCiiKiiuy ]>iiiil. When paid. ytyle iiiul N\i. uf Suit. Aiiiiiiiiit. t CtD. r, X. Y., Clerk of the Division Court in the County of make oath and say that* tlie forciioinu' rttmn i.s full and correct in every particuiar * (or i/' no moni'iri riinn'ii niif/niniii/, iiisfiai/ oj' th< mutt' r hi lien n fill' ii-'/i ri.i/:s sill/, " no siu;h iiioiu-y.s paid into ( 'ourt, or to me .-is ( 'IcrU tiicit ut. remain unclaimed for six years next before 111 st day of Deccnihcr last past.") Sworn, &c, X Y .Clerk. BAILIFFS FORMS. (117.)- '.{EI'LHVIN I'.ON D. , Know all men hy these presents, that nvc, A. H., of, &x\, \V. !?., of, .<;c.. si^iid J. S., of, iScc, are jointly .tinl severally held and hound to \'. \\'., Hailiti of the Division Court in tiic < 'oiiiity of in the sum of .'^i to he paid to the said Hailill', or his ccitain attnrncy, exciutors, administrators or assij;ns, for whicii paynunt. to lie wt 11 and truly made, we hind our.^-i'lvcs. and eacii and evcr_\ of us in the wiiole oiir and cacli, and every of our hcits, executors and administrators, tirmly hy these presents, sc'cd with our seals, and dated this ilay of , A.D. 18 . The condition of this i,hlij.'atii>ii is such, that if the ahcpvc honndcn A I', do jiro.secutc liiM suit \\itii eticct. and witliout delay, against ( '. D. for tlie raking and unjustly detaining [or unjustiy detaining, <(< l/ii <•(/>?■ nun/ In] of hin latlle, goods and chattels, to wit ; {/nrr ml f'orl/i thv itroju'iii/ ilii^lia'iiiiil, iohi n or iir/iiiiiil), .■villi do make a return of tlie said property, if a return tin.rcof shall in', adjudged, ami also do pay such damages as the said C. D. shall sustain hy .<^ .•■:■ J- i ■.'>;;-,. 1 '"■ .'kf^'^ri'^ '^-m0.. Vc . .. N*;- 3:i2 FORMS. tlu! issuing of the writ of replevin, if the said A. B. fails to recover jiult:- incut ill tlif 'uiit ; anil furtliiT, do obscrvf, iiet'ii and iK'rforni ail orders ina^lc l)y tile Coiir^ in tlie suit ; tiieu tliis obligation shall he void, or else loniain iii full force and elleot. Sif^ned, sealed and delivered, 1 in the presenec of '- ( A. B. [i,.s.l \V. (1. |i,.s.l J. S. [h.s.J (118.)— FORM OF ASSKJNMENT TO BE ENDOnSKD, IF RKQIIU Know idl men hy these jiresonts, that I, V. \V., Bailill' of the 1 sion ('ourt for the ( 'oiinty of , have, at tlie request of the \vi named ( '. I), i/ln' ih finilnnl), assigned over this ri^plevin hond unt<i the < '. !>., iiiirsiiant to tlu; statute in sueii ease made and provided. Ill witness whereof 1 have hereunto set my hand and seal of oifice day of IS . Signed, sealed .and delivered, | V. W. \ScaL\ in the presence of \ i:i). >ivi- tlun said this (119.) -BAILIFF'S RKTUIIX TO WRIT OF RKPLFVIX. In the Division Court in the County of Between A B , P/<ihifiJ', A Nil C I) , Defimlnnt. (n) In ])ursnanee of ace. 1 1 of 'J'2 Vic, caj). 'JO, and see. o of 2.3 Vic., e.ip. 4.'), 1 have taken from said plaintitl' a hond, conditioned a.s hy said .Vets re()uired, made hy him and two .sureties, namely, of the ot in the County of , yeoman (<*/• n-i the ca-ic nnti/ he), or, of the same place (or an tin' crwc m(t;i he), which hond hears date tho day of , 18 , and is witnessed hj' And by virtue of tiie annexed writ to nie directed, I have seized ami (h'livered to the plaintitl' tlie -oods nieiitioned in said writ, that is to say {ili'srriliiiui (lir (imiils />// iiiiiii^'i r, i/iiiiiitili/ ntui i/iiti/if//, iir if oiilji <i pnrt linn- hevn ri'j)/i'rii'(l, say a portion of goods in writ nieiitioned, that is to say [ilcKcrilnHij llii'm), and I cannot make replevin of tlie residiu! of said goods, namely {xkorllji ilf.srriliiinf //n m), as by said writ eommanded, by reason of the same having bet-n eloineil out, of this eoiiiitrv by the defendant ((>/•<(.'-■</(<' cdAC /«(('/ (120.) -INVENTORY OK COOhS SEIZED OR UEIM.EVIED. .\n inventory <>t property and effects }»y me this day seized {nr replevied) in the Ti)iriishi/i of , by virtue of a writ nt' [n-i the (",•»' ina// he), issued hy \. B., ('lerk of the Division Court of the County of (or (tn tin I'ttM iiKij/ he), on behalf of E. F. against C. 1).: that la to say, one lumber waggon, etc. (stnfiiKj all the articles seized). Dated tais day of A.D. 18 . V W . Bailiff, etc. ^ IiUNit " In pucMwneu of mu. 11, Hev. Stat., ' aii. 53, 1 have takeu," &c. FORMS. (1'21.)— Al'PllATSKIVH OATH ON ATTAOHMKNT ("AS^KS. 333 Yoii, ami each of you, sliall well and tiuly appraise the jtroperty ami efTocts inciitidiietl in this iuventDry (huhlUm it in hit hand) auoonling ti) the beat <>t' your judgJiicut. iSu hili> i/ou Uml. (1*2-2.)- AIMMJAISKMKNT To I'.K KNDollSKI) oN INVKNTnit V. We, H. H. ami l>. J)., l)e'iiig duly sworn by the Hailill'. \'. W'., to appraise the property and ellects mentioned in tlu' within inviaitory to the \,'"*t of oiir judgment, and iiaving examined the Name, do appraise the same at the Hum of Witness our haudw this day of , A.J). 18 . B. B. B. 1), ,. «• t (123.) -NOTICE OF SALK. By virtue of an exeeution isR\ied out of the Division Court for the County of , and to um directed, against the good.s and cliattils ot , at the suit of , I iiavc Bei/ud and taken in execution, one bay horse, Ac. All which property will be sold liy public auction at , on the day of 18 , at tiie hour of o'cli>ck in tiie noon. Dated day of ,18 . V. W., BaililV. (124.)— UKTUllNS TO EXKCCTIONS, Ac, {a) Kulhi homt.-' The within defendant (or i)laintitr) hatli no goods or chattels in the said County of whereof 1 can make the moneyn to be levied, as within commanded. V. W., BallifT. Dated day of A.D. 18 . \h) Frri -By virtue of the within (•xeeuti(Ui, f htive made of tlu' goods and chattels of the defentlant (or plainlill) tlie moneys within mentioned, and have paid the same to the said ( 'lerk, as within commanded. V. W., BailifT. Dated day of A.D. 18 . (r) J\i)'( made.. — By virtue of the within execution, I have made of the goods and chattels of the defendant ("/• jjlaintitl") .*! , and have jiaiil the same to the said Clerk, and the defendant ['jr plaintifl') hath no nioir goods or ciiattcis in the said County of whereof 1 can make tin' residue of the said moneys, nr part thereof. Dated dft^- of A.D. 18 V. W., Bailiff. ■i: li • ' ^- ,-V »■•••' ,' *• .'iV .• ■ . ■ ' ■ - .' ■ ■ t ■ 2 1 I"., ' (..'^ h ,'l' ' •1 i/ti;?vV) :■ I If. .vi/--!*:--.', o" 1* •. 334 FOUMS. WHF.N I:KNT I.IAIKI) IIY riAII.MK, (</) By virtue of tlic witliin <'xccutiiiii, I liavc iiiailu of the goods and rliiittcln of the plaiiitiir ((</• dcfi'inl.iiit I !? , |iiirt wliiriof, !i? , I liiivc [ihIiI to O. 14., I.'itiilliifd of siiid |ihuniiir {nr dcfciidanl I, fur oiii! quarter's nut in rt »|H'i't of priiiiists when hvy made ; and a furthir part, !S , I have retained as ftH's on execntion. Tlie residue, .•:> , I havo paid to the said ( 'U'rk, as witliin coinnianded. Dated (lav "f A.I). IS . V. W., IJailifT (Pif).) IJOND ON SKIZrilK (U: SALK Ol' PERTSHABLK PUOPEllTV IntI Hi Division (Viurt in tiio County of Bktwkkn a C- B D- Pla'nifijr, Di'fi'ii<(tt?it. Know all men 1>y those ])rcsfntH, that wo, A. B., of {inxcrf pfitrr nf rrsldi'iK-r rill'/, iiiliiil'idii) the ahove'-nanied plaintiir, I'l. I"\. of, i^e., and (J. II., of. ^';., Jin;. and each of us is, jointly and severally held and lirndy hound to < '. I)., the aliove-nained di-fendant, in the .sum of .5 to he paid to the defendant, his eertain attorney, executors, administrators, and assijius, for which p.ivmeiit, \\( nd trul\ to l)e made, we liind mirselves, our heirs, exc cutors and administrators, and each am 1 eveiv of ns, hinds himself, his heirs. exec'iitorf d ad niinistiators, lirndy l)y tiiese presents. Sealed with our respective .seals, and dated this day of A.D. 18 Whereas the aliove-iianied |tlaintill" hath sued out of tlu' saiil Court (or frotu a.lustice of the j'eace) a warrant of attachment aj^ainst the gooils and cliat- tels of the defendant, and hath re(|uestod that eertain jierishahle property, to wit {s/Kri/ji ]>r<i/ii liji) lielomring to tlie defendant, may he seized, and forth- with exposed and sohl. under and hy virtue of the said warrant of attachment \or whereas eiM'tain perish.-ihle property to wit , heloneini,' to the defend.iTit, hath heen seized under and liy virtue of a warrant of att;u.'hment, i.SBued niit of the saiil ( 'iiurt ("/• liy a .lustiee of the I'eace) in the ahove-namcd cause, anil hath heen ihily appraised and valued at tiie sum i>f f^ and is now in the hand.s of the Clerk of the said Court ; and whereas the jilaintilV hath reipU'steil the said ( 'lerk to ex|«)se and sell the said yooiis and chattels as perishahle property) according to the form of the st.atute in that hehalf. Now, the condition of tiiis oljligation is such, th;it if the s.vid ])laintiir, liis heirs, executors or ailminislrators, do repay to the said defendant, his executors or administrators, tiie value of the said goods and chattels, together with iiU costs and damages that may he incurred in conscMpienee of the seizure and sale thereof, in ease judgment he not ohtained hy the jilaintiH", according to the true intent of tins 121 1th section (ii) of the Division (!ourts Act, then this ohligatioM to he void, else to remain in full force aiul virtue. Sealed and de'ivored \ A. B. in jiresence of [■ E. F. ) G. H. [L.a.] |.,.s.J |L.S.] (a) Nuw tlie ^05th section. ir- ■■ ■■•V , forth - to tin- llllCIlt. ■n.'iiiii'il ami is liiintiir ittols ilS FonM.«. :i;;r. ' It 1 ■^ sr 3 -V 'm lyi 3 r.** 9 9 Is , U mim 1 2 51 -1 •A •J3 'I - .■ • i* ^ i ^ o « 1 & ^ " si si 8 2? f ' ■; ii 2 c fl ^ « ^ 2 - s, .Z — - 0- - - - = 2 c3 ».* M>4 .3 I > S 5 * S 2 3 - „ c - « 1 ic a I 1 * - S = 2 1 '^ ii > ■S , X V iJ — ^ -! « 1^ %-ii 5 ■ .a 3 2,^ w *> 2 "5 ^ i' S ." <M i 5 -^ 1 s 1 ^ i -i 1 •4-1 c 5 15 .23 B •b • '•A i 4 ^£ ^ 2l <» 3 +> 2 T ^ 5 ^ X J - ■> 4- * 1; •r . . Xi wi to 4) C a 3 ^1 1 o bo 1 a »■ < ■=- t:;-^ 2 1w . ■♦ ^ 33 ■J .= ^ I - a-f •J -4-' o K Es - -5 = 2 "^ ^ •-. 5 S = - §o I. ■■" ki- ., <D :i 5 Q f/> Hi ri > c c E 4 ^ o 4-» ' X p ler the 93 tion :ind iiotrd, vi, it of Yicr w the du tn O u o eo ^ -*-* g o ^ >. 't " .,^^ 2 3 >- Ji a ': S if - • 54 a C 3 o ■■•-t S 2 = « = 1 ^ i 1 ?• "^ iS T ' ■- i O ^ ■ 7. si if m a 2 a tr el . - .f ■ tnakiiig re touchin;; to lie fill is other t on neeess ~ tH >■ ^ -^^ <i p: 13 -^ Pi 4) o .00 r— 4 *. •S t ^ £ « •n < r. ^ S - o J ■s iJ .n .i: i** '^? '^ ? tice touching 8 , and the ( 3 o e 3 s a: 1 £ > ^ u g t> j^ -- U3 U «= U -r" >-i OJ rt L. ^ ^ (T « o 1- .t; § £ o •fo ^ 2 = ^ 5 it 1 9 > 1— T o i '' • s« !^ CO 1 II H. I.I •>< V ■ \w-> <■ ,'*, ■" '•r1•^^'■>^... ,. 1^ ifi- It'*'' ' ■■ •■;• 1::. ;•*. ■'.'. ;};5r, CLKUK S KKKS. (127.) SCHKDLTLL: of CLERK'S FEES, {a) Receiving {])) cluiiii, iiumhcriiig and entering in Proceduro Mook l.-> iHsuing siiniiiKnis witli moccsshi'V notices or wurnings thereon, or jinlgiiicnt sniiinionH (c) WliL-rc ciiiini docs not exceed $20 :'.(» " " exceeds !'i!2(» and doeH not e.Kceed $00 10 " " exceeds 8<i() "di Cojiy of ]>rocess, (</) of diiiiii, or set-oil', or otiier pupcir ro- (juired for service or triinsnii.ssion ttj Judge, cuch "Jo Sununoiis to witn(;ss (rt) with any n\iud»er of names thereon lo For ev»^ry (lopy to serve ( /") d.i lleceiving and entering Ijaililf's return to [>roce.ss or Judge's order (y) In Kntering (//.) notice of set-off, jth'a of paynuiut, or other defence, re<|uiring notice to the jdaintitl', or notice of aihnission (/) as to payment lid Taking confession of judgment Old l>i-a\ving every necessioy atHdavit and aduiinistering oath . . l.'."i Every notice reiiuired ( / ) to Ix! given hy (Jk-rk to any party to a cause or pi'oceeding, or to the Judge in res[Hct to i\w same, and mailing Id Kntering every judgment, or onh-r nuuUi at the hearing (k) or final order made by tlio Judge, or linal judgment entered hy the Ck^rk Id Summons for each juryman, when caUed Iiy th(! parties .... Old (Only -Tx.;. in all to be allowtnl lor a Judite's Jury.) Ox'der of i-eference, attiiching ordei', or other order drawn and entered l)y the Clerk l.'t Transcript of judgment (under sees. 139 or 142) 2."> Every writ of execution, (/) warrant of attachment or war- rant for arre.st of delintjuent Id Every bond, when nece.s.sary, including affidavit of justifi- cation no For necessary entries in the debt attachment book in each case (in all) 20 'M 1 • . • . BAILIFFS FKES. 337 4 9 '■ 1,-) -Jn 1 In . (I !»:< . 1(1 r f . I'd . I'l . iir> Y Id Ki 1(1 i:. !>.") •id no 'H\ Transmiltini,' |)iv|)(>ra for scrviiM' (m) to atiolhor Division or to | ,., tfu(lf^<i, oil iiii|tli(;itioii to liiiii, iiirliidtiiji ueccfiHary entries, l)Ut not, |'o.st!ii(('s L'O K«'C('i\ iiii( |),i|n;rH I'loiu ,ini)tli(M' Division for scivico, (>/) cnt.or- in,!j sHMic. Iiiiiidinj^ to tin; lliiiliir, rcriM'ivin;; liis rt'tiirn, and transmitting Hiiinc (if return ni.tiU; jirnniiilly, not oflierwise. ^ 'A') Heareli by |)(Mson not |)iirty to the suit or iiroccciluig (<») to J)e paid l»y tilt! applicant, iDc; scari!ii hy party to ihosuit or procfieding where S'-rvice is over one year old, I de. ( No fi'e is eliarL;ea')le for s-areli to ,i, party to tli' suit or pro- ceedin;i;, if the same is not over one year <dd.j (128.) StMIKDUM-: OF r.AllJFFS FKKS. Sorviei' of svMumoiis, order, or other pro(!css ( ji) on eaeh ))or- son ( except summons to witness and summons to jury- iiiaiij where claim does not exceed $2(1 20 " oxco(m)s $20 ami does not exceed $00 30 " " " $()0 40 Service of svimmons on witness or juryman, or service, of notice 10 Taking contession of judi(ment, and attending; to prove.... 10 Knforcini^ every writ of (\\(H;ution, (7) warrant of attachment, or warrant a.!j;ainst the hody, each VVliore claim dties not cxcetMl $20 4(^ " " cxc(!eds $20 and does not exceed $(10 (]0 " " " $G0 80 (Executinj^ summons in replevin, including service on de- fendant, same charge.) Kvery mile necessarily travidled (r) to serve summons or pro- c(!ss, or ( thcr necessary papers, or in going to seize ou attiiohment, or in gtdng to seize on a writ of execution, where money made or case settled a/ter levy (s) 11 (In no case is mileage to be allowed for a greater <listance than from the Clerk's office to the place of service or seizure.) Mileage to arrest delin<iuent (l) under a warrant to he at 1 1 cents per mile, but for carrying delintpient to prison, in- cluding all expenses and assistance, per mile 20 22 ^ t IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 2.2 i 1^ 12.0 1.8 U II 1.6 V <^ ^ /}. "^ >^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ■i- 1: ■ It . . '<* ■ ■ r lit ■■ ' *'*'j*'i-^ ' ';■:;■■* fiif.^JA^ .... -r..'v ■' '■■ :i. i:'--'.i*'"J i- -iff .;vv: ..<;;•• > ""'V'/i •'' ^-.■*i * > V *■: ■.4 •;■■,•!, 'ii' ,,,,., Iff i V"' ■■•■'-'■■■■ 338 BAILIFFS PEE9, l?lvery schedule of property seized, attached, or replevied, in- | ^ eluding affidavit of appraisid, when necessary Not exceeding $20 30 Exceeding $'20 and not exceeding f GO 50 Exct^ding $G0 7r> Every bond, when neccKSsary, inchiding affidavit of justification 50 Fiivery notice of sale, (?/) not exceeding three, under execution or under attachment, each ir» There shall be allowed to the Bailiff, for removing or retain- ing property seized under execution or attached, reason- able and necessary disbursements and allowances, to Ik; first settled by the Clerk, {v) subject to a})|)eal to the Judge. There shall be allnvod to the Bailiff five per cent, upon the amount rea^..,.J i'rom the sale (w;) of property under any execution, but such percentage not to apply to any over- plus thereon. (n) It is not the puip.jse of the author, or within the scope of this work, to rli.scuss thi) propriety or irudequacy of the fees est.ibhaheil by this taritt". In many cases duties are cast upon Clerks and Bailiffs of an onerous and im- portant character for whicfi no compensation is allowed. Responsibilities are imposed and services required without the slightest recogniti(m of a pecuniary uature. This should not be, and it is respectfully sui)mitted that the true principle (it such a tariff is to be continued) is, that compensation should be made for every & .bstantial act of an officer for which the law casts on him a responsibility. So far as Clerks are concerned, we think a tarifl' might be framed by which less doubt would exist of the fees properly chargeable by them, by adopting a scale, in round figurcn, proportionate tt <;he amount of the claim and the ditferent stages or steps in the cause. This would, to a very great extent, do away with the complaints so frequently made of the improper exaction of fees by Division (yourt officers, and of the abuses of the Division Court system. Some change in this direction is much required, and would be hailed by all honest Clerks, and suitors generally, as a much-needed reform. But «)ur pul-pose now is simply to take the tariff" as it stands, and, if possible, to point out by the light of authority, or, if that be wanting, by a fair tUscussion of the different items, what reasonable interpretation should be given to these items. The tariff prescribes all that a Clerk or Bailiff has any right to take (Darlncll v. The Quarter Samous of PrencoU and Ihtnnell, 'J(i U. C. 11. 430), and to exceed anything there prescribed would be a wilful violation of the law an<l subject him to dismissal from office : llnle 164 and section 210. No counsel or attorney's fees of any kind are taxable in the Division Courts : 10 U. C. L. J. 258-260. In Dartnell's case, Hagarty, J., at page 434 of 26 U. C. 11. , in speaking of Clerks of the Peace, says that they "tlo a great deal of work for nothing, but that we cannot help. The same may, with equal propriety, be said of Division Court officers. (6) By Rule 2, sub-section 15, the words "the claim" shall mean "the demand or the subject matter for which any suit or proceeding is brought <»r instituted iu a Division (^iourt." lu ordinary claims on the commencemeut of COPIES OF PROCESS. 339 Buits there can be no question about this item ; but a practice has been adopted in some places of making this cliargo on the issuing of all juilgment sum- monaes md summonses after default, and of charging, not only the lifteen cents under the first item of the tariff for each of such proceedings, but for the application or "minute in writing," \which, under Rule 7, tiie execution creditor htus entered witli the Olcrk) as an order. A liberal inter[)retation of the tariif, in our ojiinion, entitles the Clerk to tin; fee of lifteen cents on enter- ing the claim on these summonses, but the charge of forty cents on the "minute in writing," or application to tlie ( 'Icrk for '•'le judgment summons, a.ii an order, is wholly indcliaisihle, ami is the emanat )n of too suggestive a mind. When au "order" i.s meutiojied in the tariff' it ineiuis some itonnnand or direction of the Judge. A party t(» a suit certainly cannot make an order. it is submitted tliat this latter charge shouhl, when; hitherto niadi,', be dis- continued. As wcJl might any other direction to tlu; Clerk be considered an order. The only diirn'ence is, th.it as tiio judgment summons is calculated to affect tlu! liberty of the subj( et and is highly jicJial in its conse(iUcnces, the law very properly re(jiiircs thut a wrUtvn ixMjuc.st In; made for its issue, so tliat u debtor may see that the proceeding is taken by .some one having authority to do so. (c) See note.s to Rule 3, and especially section G.8. {d) In every suranious against one defendant there is only chargeable one eopy of summons and one copy of claim ; see notes to section 08 and remarks there made, and Rule 8. This includes all notices or warnings on such copy, bet;ause it would not lie a complete copy without them. The ( !lerk is also entitled to charge for a copy of any paper "required for service," tliat is where hi/ Imo service is required. Whenever it is necessary to transmit papers to the Judge, the Clerk is, under this item, also entitled to twenty cents for every copy reijuired. In an application for new trial, for instance, a "copy of the claim and other papers requisite to tlic proper understanding of the case," under Rule 142(A) must ho sent to tlie Judge. "What are necessa-rif papers must depeml on tlie circumstances of each particular case and tl»e grounds of application, and no general rule can be laid «lown : '■' 2 U, C. L, J. 22. It is submitted that a copy of sunnnons and claim rack should at least be sent to the Judge, and of any other jjapers that might be reasonably required. If the Clerk should, t<} save trouble, send thu originals instead of the cojiies, he could not charge anything for copies under this item. As remarked by Gait, J., in AWs v. McLay, 2(5 C. P,, at page 1!)!). " it is sufficient to say that he has charged the plaintift' for services wliich he did not render, and therefore the charges must be disallowed." Siiould the Act or Rules of Court, or the Judge, re([uire the Clerk to transmit a copy of any other paper to the Judge, he would also be entitled to his fee for such cojiy. The Judge woultl, (tf course, see that the Clerk did not create an abuse by sending unnecessary copies of any papers. (e) The names of all a party's witnesses .should be inserted in the original subpoena ; but in a case where a witness was required who was nf>t known to the party at the time of issuing the sub])a;na, and wliose evidence was material, the costs of a second subpcena for him should be allowed : see notes to sections 96 and 97, and Form 1 12. (/) If made out by the Clerk, this fee is chargeable, but a party is not bound to take copies of a aubpa3na from the Clerk. He may, in strictness, make them out himself, but parties usually allow the Clerk to furnish the copies. ig) " Process shall mean any suramons, writ, or warrant, issued under the seal of the Court or Judge's summons or onler : " Rule 2. If by law the Bailiff ia bound to make a return of any paper, within the definition given in thai Rule, then the Clerk is entitled to this tee. -...•■■« i'^\^- " 340 ENTRY OF JUDGMENT, (/() Tliis charge is only allowable where notice is hij law required to be given to tlie plaintid'. (i) Sometimes tliis charge is made for notifying the plaintiff tliat the amount of ik'ht haw lnjen ]iaiil into (.'onrt, and for liini to call and get it. Sncli a diarge is entirely nnanthorized. By Ivule It"), if any "Clerk sludl receive money for any party t)y virtue of his ollice. he shall, u-lthnnt rlmnji- Uicn/or, fortliwith notify the party entitled tiiereto, or tiie ( !lerk from whom he received the transcript." The "notice of admission'' referred to in this item 2n'oi)al)ly h;is reference more particularly to such a case as that referred to in Kule V.i'I. (j) It must be a notice rc/n'trftl hi/ /<nn t(> be given by the Clerk. Those given by liini through courtesy are not taxable against the nnsncce.'^sful party, hut nmst be governed l»y any arrangement made l>etween tiie Clerk and the pai'ty to or for wiioni given : The ('or. of Ldnihdm v. Puux-tvlt, 'Jl U. (j. It. 472; Ihuiiirll v. The (J. S. of Prciroft (tiid L'u.-is,/!, l»(j U. ('. I!, 4.S0, [k) Tins item has been the subject of nmch discussion, and great diH'crenoes of opinion have existed, and now exist, concerning it. Un the one Inuid, it is argued that every judgment remlered for the plaintiff at the trial inititlcs the Clerk to this fee, as well for entering the judgment as for entering tlie order of the .ludge for payment of del>t and costs. It is contended tliat every such proceeding consists in the Judge's decision of tlic ea>ise and tlie order for pay- ment, ami for I'tich of wiiich the Clerk is entitled to the fee of 40 cents, men- tioned in this item of the tariff. In support of this view, it is argued that the order made by the Judge is not the "judgment" of the Court, and that it does not become a judgment until duly entered in the Procedure Book. 'I'liose upholding tins view furth'ir argue that the "tlecision" which the Judge pro- nounces under the lOtJth section is "t/icjudnnifnf" of the ('onrt, and the '^ order" for payment under the l()7th section is for the purposes of the tariff, quite distinct frtmi the "decision" of the cause. We will examine the authori' * in favour of this view of the case. It seems to be ostal)lished that the judj. ') jnt or decision of the Judge does not I'ecomo ajtidijinciit of the t'oiirf luifjl initircd by the Clerk in the Procedure Book. As remarked at i)age 1 12 of 5 U. (J. Ij. J., "the Clerk needs no express direction from the Judge to make entry in the Procedure Book. He records, iis a matter of course, every dcr'idon of the Judge, as is done in other Courts. EiulorHPiin'.ntH hi/ (he Judifc liarc no lef/af v((lne, thr i-ntr'u'H in the. Prorcditrf Hook oh)iie arc i-ridcnci'." In the case of Sh'Htton v. Johnaon, to be fcniml at page 141 of 7 Local Courts' (lazctte, Mr. Pitt Taylor, the learned author of Taylor on E\idence, sitting as County Coui-t Judge in Kngland, took the same view of the law, and 'u'd that the record of judgment was not complete until the decision of the Judge was duly entered in the pro]>er ))Ook by the Clerk, and signed ))y him on every i)agc. In Itcj. v. Rowland, 1 F. & F. 72, Bramwell, B., held that the onfi/ way of proving a County Court judgment was by tlie signed entries, such as provided for by section 37 of our Act. In the year I8.j8, the same point, as it appears to the author, in effect, arose in the County of Wentworth. on the question of money payable to the Fee Fund under the old tariff". The words on which the follow- ing opinion waa founded were these: " AVv?7/ order or jadi/inent {not to he charged when the defendant han (jiren a confession of judij me nt.'^) In a letter addressed to the then Attorney-Oeneral for Upper Canada, Hon. (now Sir) John A. Macdonald, on the cjuestion of the proper amount of stamps to affix, the following oi>inion was given : •'Office of the Attorney-General, U. C, "Toronto, 14th September, 1858. " Sir, — I have the honor, by desire of Mr. Attorney-General Macdonald, to Acknowledge yo r letter of the sixth iustant, referring to the differeuce in RENEWAL OF EXi-XMTIOy. 341 {inictico of the Divisinii ( Joui'ts as to the interpretation of the scale o'^ fees for fivery order or jiidgnieiit. "I am to int.irni yon that the Attorney-deneral is of opinion that the Clerks slionld collect a fee on every order in addition to the jiidgnient foe. Every judgiueiit for debt, damages or costs, necessarily involvis an order to pay tlie amount, lint where tlie plaintiff is nonsuited without costs, or ,i judgment is given for tlie defeiulant without costs, it is a sini])le judgmezit, an<l no oi-der is chargcalile. A judgment in a Division ('ouit stanils on a ilitlerent footing from a judgment in the Suiieiior Courts : see Division Courts Act, \H'){), sees. r>;i and 84 ; Division (,'ourt H.xtension Act, 18");$, sec. ,3; also Division Court Rule Til. Such is tiie practice of the County of Simcoe and some other counties, and tlie Attorney-li in ral thinks it desii'a])le that y<iur Courtb should adopt this aa a uniform procedure. 1 have the honor- to ho, &c,, " Your ohcdicnt servant, " H. Bkknahp." These are the views ami authoritie.s, bo far ,as we have been al)le to discover, in favour of tlie riglit < f tic ( 'lerk to the second forty cents on a judgnunt at the trial for tlio plaiiK ff with ciists. ])ayahlc in s>ich time as llie .Judge (U'dcrs. Un the other hand, it is argued tliat tlie decision of the cause and tiic order for payment of deltt and costs are oin' j>ii/</tt.'< iif, that there is only one entry, and can only he one fee attached to it. This view is strongly supported hy the autiiority of El;/ v. Moii/r, 5 Ex. DIS, and Ruliiiisi»i v. IJill, \'2. C. 1>. i!)l. In the former case, the (jnestion arose whether a rcrlHil order made at the deci- sion of a County Court case was only an order of the Judge, reipiiring service before being acted upon, w foi'med jtart of tlic judgment of the Court. At page D'i."), i'arke, B. , says : " What is here called an order is, in truth, a [lart of the juilgment." At i)age It'iO, l^latt. r>.,says: "Although it is c.illed an order, it is ueitiier more nor less than a judgment ])ronounced on tlie luaring of tiie (daiiit." In tliieal)ove mentioned case of I'ohiu.fDii v. (Icll, Williams, J., savs, at page 107 of VI C. !!. : " 'i'lie !>ltii section ot the !» k 10 Vic. c. !).">, shews that the terms 'order for the payment of money, ' anrl ' judgmt'nt,' are used synony- mously." At page 'J(iO, .Jervift, C. J., says : " TJie order for payment is iji this oase, therefore, a part of the judgment." These conflicting opiniftu'- are rihared by County Judges generally ; some taking the view that the (')erKs are entitled to the second fee, others being of II contrary <^[)inion. Which of these views is the (jorrect one we cann<it ))re- tend to say. The reasons are strong on both sides. If the Crown wa^s entitled t(»this additi<inal fee during the time the Fee Fund tax wa.s in force, Me can rtee no reason for withholding it from the (.'lerks m>w. If every decision of the Judiie in favor of a ])laintiir for an amount, together with costs, was properly hfld both a " ju<lgnu;nt" aiul an '"order" for I*'ee Fund purposes, we cannot I'csist the conclusion that tins Clerk was entitled to a fee for the entry of (iii-h under the tariff of Clerk's fees as well. ^\'e, therefctre, think that until this item of the taiill' is amended, so as to leave the (question no longi r in i.loul>t,a Clerk w'ould be warranted in acting on the Attorney-! lencral's ojiuiion. It will !>(• (d>served that fiuch fee would not, in any view of it, he chargeable on jutlgments entered hy default (Ui s[iecial summonses, or in many other cases that might be mentioned. It would only apply to a "decision " of the Judge, and an "order" being made for payment at such "time or times" as he might direct. The words "or linal (M-der made by the Judge" would have reference t(» a case where the Judge did not make the order at the hearing, but afterwards made a final dispositicm of the (!ase. The Clerk's right to the i^econd fee, if it exists at all, would in such a case arise. (/) At pag« 3'2(> of VI L. J. N. S., the Kditor expresses the opinion that the Clerk is not entitled to any fee on renewal of warrant of executicni. With all •lue ri'spect we differ from the learned I'MitcU', and express the opinion that the Clerk is entitle<l to the Hnmc fee ft)r a renewal as he is for any original writ or warrant under this item. By section 1G3, the execution " may from ■•I ^-'■: '"W y i»''8 %■* 342 TF.ANSMITTING PAPERS. ■it if:Xii.,}:''', time to time be renewed by the Clerk . . . in the, same maimer and with, the .suDtc effect as like writs from the Courts of Record may be renewed." l\y Kules 101 au<l 102, warrants of commitment may be renewed. For the moment, lo.sing sij^ht of the fact that the law as to renewal is assimilated to that o( Courts of llecord, in which C'ourts the costs of renewal are exj)res.sly j.'iven. we may incjuire what a "renewal " is Worcester defines it to lie " the act o*,' beginning agiuin," " recommencement," " repetition." The word " renew " lu delines t(» be, " To make or cause to be made again, " "To begin again." If the writ has been acted upwt, it cannot be renewed {per Draper, C. J., in NeAL-iun v. .farritf, bS (J. V. 17(>). so that the question of j^riovicy of an exintirKj execution, when gooils seizetl under it, does not ai'ise. If the renewal ia to hi* consiidered as the " beginning again " or "reecwnmen cement" c\f execution, it is submitted that there is no diti'orence between making an indorsement in a particuliu' form an an exe(;ution, without which such execution would beconu> effete, and drawing up a fresh writ in identical word.^i. The renewed writ hais to be entered by tlie Clerk in the Pioc-tKlure B(K>k just in the »iuae way as would a separate writ be entered. It is submitted, thorefwe, tlwtt a reason- able construction of the fciriff (and ucting on the principle of allowing com pensation for work done) sustains the vifjw that the Clerk has a right to be paid the same fee for a renewal of a writ of execution as for one (*rigijiall> issued, before the cliange in the Superior Courts tariff alifuit renewals, the practice was ^or Clerks of tlie Cixjwu and their dc-puties tn insist on the Yet- Fund stamps for renewal of _fi. j'a.s. being affixed. Tliis strengtheiis the view just exi)re8sed. It may l>e (questioned whether a judgment debtor- can b(- charged (if cliargeable at all) with renewal fee. Certaiiily not for renewa's at the ideasure of the creditor. {nt) iSonse Clerks charge for transiiiitting a transcript of ^ adgment, imdet the IHlst section, to the Clerk of another Court, for the purjx>se of having proceedings tiiken upoai it in tivat Court. Tlie woi'da are not merely "trans mittiixg i.\aper^," but they must be transmitte(t "/ur .se/vio/." "Service" of papers has a well umlerstood meanings. ' It is quite distinct from the execution of a writ of _/«. fa. How it can be eonteuded that sending a transcript t(» another Court for the jwirpose of execution can be construed as. "transmitting papers for service" the writer caa scarcely imagine. Tfae words here employed mean trajisnutting papers for the service of these very pipers sjo transmitied, and (U) not mean transmitting oertiin papers, ui)ou which in some other Court certain other papers may issue (such os a garnishee summons), re(iuiriug service there. Transanitting an execution tc> the Bailiff of another Court for his execu- tion of it, and similai' cases, would clearly }H\i be within this item of the fciriff. Such charges as we have just mentioned woukl, with all due regard for lilxjrality of inter[u-etation, be quite outside c^f a reasonaWe construction of the words here emjjoyeil. We think it would \)q reasanabJte to alluw a fee for the trans mission of all papers from one Court oi- oificer ta another, l>ut it ist enough tt» Bay that the present tariff does*not, in our opinion, authorise it. (n) The next previous note applies to this also» It will at once be sseen thai the receiving, entering and haiuhng to the Bailiff, all refer to papers which wert^ receivtHl froan another Divisicm, aud tlie retrausmissioa Ua? reference tu the saline class of pajiers. The reference ta the forfeiture of fee,s is ajso in support of this view. (o) A iJarty to a suit (which also means any person acting £«r him and with his authority) haa a right to search without charge, if the suit or proceeding is over a year old ; after that he must pay as a stranger. A question often su^isc* whether a Clerk is entitled to charge for a seai'ch in addition to a, fee for a proceeding taken in consequence of that search. For insrtiince, a auit is thret- years old, and the person entitled to execution desires to issue a fresh execu ■ tion or judgment summons upon it, if he gives an order to the Clerk, by refer- (jucc to wliigU the kttev caov readily liud in the Pracqdure Book tUe partiQulW' IP '»' .■ i . W-: wm BAILIFF 8 FEES ON EXECUTION. 343 with ing is ariscK for a thret- xecv\ refer - suit in which the proceeding is required, then it is submitted that the Clerk would not be eutitle<l to charge for search. The case of A'o.w v. AfrLn;/, UH C 1'. I'JO, lias an important bearing on this question. The plaintiff contended in that case that the defendant, as Registrar, had overcharged him for searches made in his office and brought an action for their recovery. The <lofendant contended that the plaintiff did not give him such a description of the instrument as enabled him to give plaintiff the desired information, and that he (the defendant) had to search for the same. Hagarty, ('. <i., at page 11)9 says : "I think he (the j)erson searching) is of course l)ound to give such a reasonably clear description of tlie instrument he desires to see aa will enable the Itegistrar to find it." Again he says : " I am not concerned with the ({uestion whether the Registrar may have lirst to look at the alphabetical index t<t ascertain the number, and then to lind and produce the instrument. The aiiwutd of kin troiilile in nut the (jueMioii, hut the letjiiliti/ nf his fee. Ofeourse, if the applicant could not reasonably identify the in.strunienl he wished to sec, it would he diit'crent." S'lould tl e applicant not give such information as would reasonably enable tht Clerk to find the particular suit, and the latter had to make search f<jr that purjtose, he would be entitled to the fee for it. We cordially endorse the following remarks in the Law Journal : " The tariff expressly allows a fee of ten cents to be charged for ' every search for a party to a suit when the pro- ceedings are over a year old,' but we are inclined to think that this cannot be construed to mean, as in the case ]>ut by our correspondent, that where a plaintiff", after the expiration of a year, orders out executions on his suits, the C!lerk may charge hin. with a search in each case. A plaintiff may be fully aware of the position of his suits, and not in need of any information respect- ing them. The Clerk, in order to issue the executions, must necessarily refer to his books, and so long as the plaintiff' asks no information to be derived from such reference, he cannrt complain of any extra loss of time or extra work. The Clerk is not compelled, then and there, to refer to the suits, and give the plaintiff any information about them, and again have recourse to his books when he wants to make out the executions ; all he is required to do is to receive a list of the cases in -hich executions are to be issued, and to issue them as usual at the proper time. If the plahitiff, when ordering executions to issue, makes any enquiry as to the position of certain suits, in respect to which information is then and there given him, the search could, of course, be charged for, e , en if the Clerk, without closing the book at once, issued the execution, and thereby save himself the necessity of a second re<'erenee ; but where the plaintiff merely orders execution in certain cases to issue, we do not think the Clerk justified in charging for a search:" 9 U. C. L. J. 234, 235. The search is referred to as made " by party to the suit or proceeding." It is submitted that the opposite party could not be charged for such search, it being merely for the information or benefit of person searching. (/>) This includes the service of all notices, warnings, particuLirs of claim or demand, or other necessary memoranda, attached to, or indorsed on, the sum- mons or copy. (q) Bailiffs are not entitled to any fee on execution when returned nulUi bona. "There is nothing in the tariff" of fees to warrant the charge:" 9 U. C. L. J, 148. The same rule would apply to warrants of attachment or waTranta against the body when returned unexecuted. (r) No mileage is chargeable on an execution in cases where the money is not "made or ease settled after levy :" 3 U. C. L. J. 122 ; 4 U. C. L. J. 82. " We think the Bailiff is not entitled to mileage as against the defendant for going to make the seizure which he did not effect:" 5 U. C, L. J. 61. "It (the tariff) gives mileage 'where' certain things are done. The expression of one thing excludes any other which is not expressed. So there can be no mileage where money is not ' made, ' nor can there be mileage where neither is money made nor the case ' settled after tfie levy.' But in either of these event* " > "a !-*"',.' .. mm-'' i '^^^■^ • J* .i, ^^-■,,:i ■:■ • .1.- '.v' •%"';••( ■•111 lilt «:-;*.■.£•.,■.■■■■ Hi. P'l.r\ iV. ■ .1 T ..^:«.''^.'..C'.::'.. ¥ J ; •,'>-.-^iv;-.I;..':V ■■ i ^'.J; ■t>vi*'''''V''''''" 1 1^1 ■■:k >*.;, I. ,, -I i 344 BAILIFFS MILE/OE. tliere will bo niileago :" H U. C. T/. J. 181. "It in dciir, iis we before Ht,'ite< I, thiit a MaililV can only i-liarge inileatjo where .service hiw been ell'eeted , out it is not HO eiear as to tiii! number of trips he is in <luty bound to make for tlie |)ur[)!)S(!. We do not see iiow any strict rule eo.ild be laid down ;us a guide in sueh eases. Hi; is bound to exereise due diligence, anil use every reasonalile exertion to ell'eet a service. If on his (irst tr'p he cannot ti?id the jierson to b<; served, he can usually ascertain whether the absence is for tiie purjjose of avoiding service or not. He ought, at le.'ust, to try and find this out. In any case, he ought, if possible, withiuit intei'feriug witli his other duties, to try a second time before the next sittings of the Court for which suit entered. If he does not then succeed, he may be a])le, having left tlie summons at defendant's house or place of abode, to make such an alhdavit as may satisfy tlie .ludge that the party i.s eva<ling service, and that the summous had most prol)al)ly come to his knowledge. A Bailirt' has generally to go into the same part of his division more than once between each sittings of the Court, and can often make two or three attemiits to effect a .service without mucli incon- venience. He may, certainly, in some cases, have nnich more trouble than he can get paid for, Imt this cannot be avoided ; and any mitigation of the rule allowing mileage only in ease of service would be <i far greater evil. The same rule .applies to services in the Superior Courts:" 9 V. C li. J. '2.35; see also 4 L^ C. J.. .1. -M. In reference to the above rem;irk about the .Judge's .authorizing proceedings when a defendant evades service, we may say th.at we are not aware of any provision of the I), C. Law anah)gous to section 'JO of the C. \j. P. Act. Where two pai>cra ai'e placed at the same time in a Bailifl "s liamls for service or execution against the s;ime ilefendaiit, a (piestion sometimes arises whether or not the Bailiff is entitled to mileage on each. On this point the Law .lourna! says : " It is the e(»mmou practice to charge mileage on liolli, and such is also the ])ractice in .Slierifis' otiiees generally :" '2 L. C. (i. !K5 ; see J'/ic (.'or/tor(t/i()ii of liiildhiKiml v. ^f(l)■thl, 1!) U. ('. K. 178, and especially atpage 189 ; JJavldsoa 11)1(1 the ('/lainiKui a/ (J. S. Watrrtoo, *24 U. C. I', at page 70. (.s") It is submitted that tlie word "levy" here nuist be construed with reference to the preceding wonis, and that the construction placed on tiiat word by Erie, C. .L, in iMlh-tv. HarrU, 12 C. B. X. S. p. TmS ; by Wilson, .1., in liachantin v. Fl•(u^k, IT) C P. 198, and by Morrison, J., in /'o.s.s v. (iniiii/c, '2.") U. 0. H. 39(5, cannot be given here. In the last ease the learned .Judge says that the meaning to be attached to the words "have levied tlie moneys and interest" is, "th.at these words inchule two acts on the part of the Sheriff -a seizure and a sale!." It is submitted that the word "levy " here means, wlujre goods are seized upon but not sold, and th.at where the money is made or the case is settled .after such seizure, the Bailiff' is entitled to his mileage. The distance is not to Ixs measured " as the crow Hies," ..s was done in Moiijh't v. Voh', L. R. 8 Kxeh. 3'2, and the other cases cited in the notes to se(;tion (JH, but by the nearest usual travelled road : MttHiii v. The Corponifioii of Ihtldi- iiHuid, 19 U. C. R. 178 ; Mcijev.^ v. I.widon ,b S. IV. Jii/. Co., L. II. ;■> C. P. i. If a Bailiff should receive a sunnnons against three defendants residing at different places, he could not charge mileage from the Clerk's office to t'ach defend.ant, but only the actual distance tr.avelled by the usual and nearest travelled road, commencing with the nearest defendant, and so on to the one furthest oft' ; the whole distance travelled to the defendant furtliest oft' in the manner mentioned, and as if made in one continuous journey, would be the proper measure of the mileage; M<irthi v. Vorpundiun of Jliildinuiiid, 19 U. C. R. 178 ; DarVLoon and the Vhaintuin. <>/ Q. S. Waterloo, '24 U. 0. R. GG. It appears to be the practice only to charge mileage as for one trip to a defendant's house, though several journeys may have been made in attempt- ing to effect service : 4 U. C L. J. ',Hi ; y U. 0. L. J. 235 ; ace also previous note aud notes to section 70. wm DISnUnSEMENTS AND ALLOWANCES. 345 (t) "Tlie item ill tlioHclu'iliilo (if BiiililT's fees is(niit(; clear on tlu; iioiiit. Tlu; olliuer \h iillowcil 10 (iidw I 1 ) cuiits \)cv iiiilf till lie arrents the deliiKiiu :il ; .'irter the arrest is made, th(;ii for l»riiii,qiig liiiii to prisdii '_'() cents jier mile, 'i'liu^^. if a [laity is arrested at his residence, sr>y 10 miles oil, and is inouyhr from there to gaol 10 miles, the fees would he ■■?.'}. Jii the ease put hy our eoriespoiident the Hailill' is entitled to mileage to arrest deliii(|Ueiit : ten miles. Si ; cairyiiig ilelini|ueiit to ](risoii, &e., six miles, .sl.'-'O; total, •>'_'. "-10 :" (i L. ('. ('. [>. (I'A. ill) Th.' l>ailili' is, as will ho observed, entitled to tiftoeu cents for iiir/t notice : see 7 IT. C. L. J. !)*>. {v) It is feared tbat charges unwarranted are often maile hy Ijailill's under this iteii of the tarilf. The Clerk should exercise a (^■u■eful suiiervisimi over charges of the nature here provided f<ir, and see that no injustice is done the unfoi'tunate delitor. He should allow the liailitl' " reason ilile and necessary dishursemeiits. " What are such must he iletermiiied with refereiiei! to the circumstances of each case. The same expense would not he attendant on the removal of a horse as would he ou a lot of pigs, or household furniture, or uuthreshed grain, so that tlu; Clerk should kee|) in view l/ir h itiirc of the [iroperty in settling the amount under this item. 'I'he teini " allowances " is one under wiiieh various cliarges may he ni.ule. It is ditiicult to deline it. Should a IJailitr alter seizure, siy of live stock, feed them at iiis own place, for this he would [iroiierly l>e entitled to an "allowance." 'I'iio Clerk should care- fully scriitiiii/e all charges and expenses under this head. fi»r it is an item under which there miglit he, and undoubtedly has been, considerable o\ereliargiiig. (w) We cannot help tliink'ug that the wording of this item, and the necessar}' construction to l)e placed upon it, woi'k iu mmy cases a great iajustice to a Bailitt". At one time a Sherill' was much iu tlu' same position, and not entitled to |jouiidage unless the money was ((liiiid/i/ nuttii' on execution [lliichniinii V. Friijik: I ') C, 1*. lOo ; Tli" Anhiini ['J./'r/nnti/f UmiL- \. /fiin)iiii;in-i;/ ■■ / al. 2 \j. J. N. S. 201) ; but it is not so now: Mc/toli<rl.^ v. J/diidUnii, \'A L. J. N. S. 107, and Af nii III lire v. Craif;,', '.i (J. I'. 1). [l'-'JO, and cases there cited ; />i.-<.-<icki^ V. Jj,(l/i Col/i.'-ri/ Co., 'A Kx. I). 174. This item of the tarirt' apjiears t) admit of init one coiistruetioii, namely, that there must be a ".sa/'c" of the "property" before a Dailitt' is entitled to jioumlage : ',i U. ( '. L. J. 214. We see no reason why the same rule should not ajiply as to BaililV.i as Sherifl's, and allow them poundage where the money is mule throu-ii their instrumentality, though the [iroperty may not be sold ; but the following n murks in the l.aw .loiiiiial havt: great ap[M)siteiu;ss to the (juestion : " 'J'he feeling of the [;»ublic against any in- crease iu B.iilitl'"s fees is much eu!i;uiCL''d by tiie fact that many Divi.siou (jourt (Jlerks are either unaware of or derelict in the discharge of their duties as taxing otKcers of Bailiff's fees, an<l that some of our Judges are not suffi- ciently alive to the importance of preserving their ('ourts and <ilHcers from the sus))icion even of corruption or extortion, ft cannot be denied that one Baililt" will miko a largo income out of a certain number of suits from which another BaililV, eiiually and probably more etiieieiit, would make a bare sub- sistence. This should not be, and tlie honest P>ailitr, who cannot be (laid tii faltar in the path of duty, and wiio rigidly adheres to the tarifi' of fees laid down in the Act, may, with some show of reason, in dull times eomiilain that his office is not what it once was. or not sulticiently i'emuner.iti\-e to cnai)lu him to gain an honest livelihood. We do not say that a iiremium sluuild In offered for disiionesty and extortion ; and though, so long as human nature is what it is, such things will be, it is, nt!vertheless, (piite possible that an earnest effort on the part of Judges <and Clerks, aided, of course, by informa- tion from the public, would materially conduce to a lessening of the evils complained of. The innocent must always, more or less, suffisr for tlie guilty, and, unless soine effectual means is otherwise devised for ]>uttiiig all llailiffs jind fee-takers upon an ecpial footing, it will be useless to attein[it, by making, a sweeping increase in the fees, to put conscientious officers in a position c^f equality with their less particular brethren ; " 2 L. (J. U. U\2. •It ■ ■U-" ■■'•■ "■« .. II \f- : >| ■ "?"■*■ • SI w I-,: l-'Si.'-t'.'.'.f-' ■''T*'"'i''V''/' ' ' 'r-i.-'^'V>»r",Vi;>v..' J. ■,•*-. .'.k'.'.-^ ;■■■ WM :v:..^ ■ It*. '. n REVISED STATUTES, ONTARIO, CHAPTER 62. AN ACT RESPECTING WITNESSES & EVIDENCE. HER MAJESTY, by and witli the advice and consent of the Lof,'ishitive Assembly of the Province of Ontario, enacts as follows : Short title. 1. This Act may be cited as " The Evidence Act." Witnesftca not to hi: in- oapiKMtatuJ liy criiiK! ur iutuiest. finch pcr- K<ins adiiiil- ted to i,ivu eviUuiice. Evidence of jiartics to a suit, inc. COMPETENCY OF WITNESSES. *i. No person offered as a witness shiill hereafter ho excluded by reason of any alleged incapacity from crime or interest from giving evidence either in peivson or by deposi tion, according to the; practice of the Court, on the trial <pf any issue joined or of any matter in question, or on any in(piiry arising, in any civil suit, action or proceeding, in any Court, or before any Judge, Jury, Sheriff, Coroner, Jus tice of the Peace, officer or person having, by law or by consent of parties, authority to hear, receive and examine evidence. 33 V. c. 13, s. 2. li. Every person so ofi'cred shall be admitted to give evi- dence on oath or solemn affirmation in those cases wherein affirmation is by law receivable, notwithstanding that such person has an interest in the matter in question, or in the event of the trial of any issue, nuitter, question or inquiry, or of the suit, action or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness has been previously convicted of any crime or offence. 33 V. c. 13, s. 3. 4. On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any civil suit, action, or other pi'ocoeding in any Court of liaw or Equity in this Province, or before any person having, by law or by consent of parties, authority to hear, receive and examine evidence, 88. 5-10.] WITNESSES AND EVIDENCE. 317 the parties to such proceedingH, and the {lersona in wlioso behalf any such suit, action or other proceeding, is brought or instituted, or opposed, or defended, .shall, excej)t as Iku'o- iuafter e.Kcepted, bo com{)etent and c()in[)idlal)lo to give evi- dence, cither viva voce or hy deposition, according to the practice of the Court, on behalf of theniselv(!s or of either or any of the parties to the suit, action or prociseding ; and the lm.sl)auds and wives of such parties and persons shall, except as hereinafter e.xcented, be competent and cojni)el!iible to give evidence, either viva voce or by deposition, according to the practice of the Court, on behalf of either or any of the parties to the said suit, action or proceeding, 33 V. c. 13, s. 4; 3G V. c. 10, s. 1. 5, Nothing heroin contained shall render any person com- pellable to ausNver any question tending to criminate hinis(df or to subject him to prosecution for any pi^nalty. 33 V. c. 13, 8. 5 OO- 0. & K* (Have no reference to D. C . actions.) 8. No husband shall be compellable to disclose any com- munication made by Ids wife during the mai-riage, and no wife shall be compellable to disclo.se any communication made to her by her husband during the marriage. 33 V. c. 13, s. 5 (c); 36 V. c. 10, s. 2. 0- On the trial of any proceeding, matter or question, under " The Liquor License Act" or under " The Municipal Act" or under " The Assessrneut Act," or under any other Act of the Legislature of Ontario, or on the trial of any j)roceed- ing, matter or question before any Justice or Justices of the Peace, Mayor, or Police Magistrate, in any matter cognizable by such Justice or Justices, Mayor, or Police Magistrate, not being a crime, the party opposing or defending, or the wife or husband of such person opposing or defending, shall be competent and compellable to give evidence in such pro- ceeding, matter or question. 36 V. c. 10, s. 4, 10, In a suit by or against the heirs, executors, adminis- trators or assigns of a deceased person, an opposite or inter- ested party to the suit shall not obtain a verdict, judgment, Kvi'lencc of IiiisIi.iikI 1111(1 NViflV QlIPRtloilB tciidinj? to (■riiiiiriiitt^ iii'cd not l)ti uubwered. Oommiinicn- tiiiiis iiiaili' (UiiiiiK iJiuniiiifu. Kvidonce in tiiiils uii'lci- Kov. Stat. <■<:. 181. 1T4, ISO, or other Acts of Ontario. Ill suits hy oj- a'^fiiiiHt rr ) I rest II ta- li vi's of a ducuurted ... |l :l .•X" !;f'.A^.;V;' y^y-'^. M'-i*' '■■■•■■ mm. ■-y^' ■■•^:' ■■*.;■' p ij. T «. ■'•'' ii'',*", *■■■■ *'•■ 1*"' :,••,•■■.•■■' ■ ^^■^■■'. rj^>^#»^ /,;„:■ ;U8 WITNES3:;.S AND EVrDENCE. [s. II, !"!!''[''";'''','. or (l(!cisioii llicrciii. on his own ovidonoe, in respect of aii\ i!'iiiv I'l'ii-ir "''''*^'''' oci'un-iiii,' Ix't'oro tlio death of tlio deceased |t(>rs(iii, lie rniniiiii. iiii|<.ss such evich'uce is corrolinratcd {<f) hy soinc' OLh(M' niatciial evidence. 'M\ V. c. 10, s. (l. II. In a suit hy or ;ij,'a instil person found hy iiKpiisitioii to hi suits liy 111' ii;,;,lili.sl , iiniaiirs etc. I)c ot inisoiiiid nund, of hcinj^iin inniiitt! of ii hinatic asvhini. c'\ iilc nee 111' n|l|lnsill' p'li'ly III lie roiTiihi)- I'.cl.'il. an opposite or intefested |»ai'ty sliail not, ohtain a vei'ilict, jildi^ineiit, Of decision thcfein, on ids own evidence, unless sncli inidcncc is coff()lK)fiite(l hy some otlu'f material e\ i deiice. .")() V. c. lit, s. 7. {'r/ie other ni'.ctlonx of the Act di'i'. either refurred to i)i, othir i)(irt>i <>/' the lourk or have no appliodtlon to Uiiniiion Court actions), ((t) riiilcr tlie Kiii,'lisli I'nstanly Ai't (.'<.") and lid Vic. e. Of), s. 4';, tin; cviiii'iic( of tilt; iii!itli(M' ef tlic child imi.-it, as to its [latci'iiity, bi; "oorroliori.tcd in sniiic iiwiteriiU iiarticuhii'.' It is .siihiiiittcd tiiat tlicrc is no siili.stiiiitial dillerLiutc in tilt! incaiiiiiLr to !)(• <,'ivcii to tlie wonis used in the i''iii.'li.sii Stiitiiti; iiid our nwn. 'Till! .sciM)iii| .section of the KnL,disli \vt, 'A'2 and IV.i \'if. c. (J(S, s. '_', i't'(|nirfs in ai:tioi)s for hre.ich of proiiiist' of iiiari'i:i<,'e tiiat tlic eviilciice of the [daintitt shall ii ! '• uori'oliorated liy soiiie other iii'iti'i'ial eviileiit'e in su|)|)ort of sueli promise." In an a(;tion for lirtiach of |ironiise, tlie evidence of the plaiiititl' was that tlu- ilcfeiidant iiad sediu'ed her, ami had rc[)eatedly prtinii.sed to marry her. Tlie plaintitl'.s sistiT swore that at an interview she liail with the ilefeiidant, when she discovered her sister's condition, she upln'aided him for the niiii ami disLtrace !■'! had liroiiudit U|)iin tiie iilaiiitill', wiieii he said " he wouhl iiiari'y tier, and give her anythiinr ; hut I must not tixpose him." 'i'lie sister further stated that after the ]ilaintitrs coni'nemeiit, she overheard a conversation hctween tlii^ plaintill' and the ileftnnlant, in tlie course of which the ]»laiiititt' said to the ilefemlaiit, " N't>u always jironiised to inarry me, and you don't keep yonr wortl," when the ilefeiidaut said lie wouhl yive her some .money to ,i.;o away. Held, this was "n\aterial evideiii:e in supjiort of the promise :" Hcxsifn v. Sh m, '2 ('. P. 1). '2()r>. I pun the hearim; of a complaint in hast.'irily. under the .Act ahovt^ meutiiiied, the statement of thi! '.tiother as to the jiaternity of tht; tliild would 1)e sulliciently corroht>rated hy the evidence of acts of familiarity hctween her and the defendant, althougji these acts miuht havt! taken place at a time hefore the child c.ould have hecu hegottcn ; for evidenci; of that kiutl is a cor- rohoration of the mother "in ir'ome material jiarticular :" t'olc v. Mmni'iiKj, -2Q. H. 1). (ill. In Ji<ss(i/itv. S/i-ri>, ( !ockimrii, ('. J., says, at ]i.ige '2~\ of ''2 (". P. 1)., "the cvitlencc given in corrolioratioii need not go the length of cstahlish- ing the contract; if thcevidenct;su))i)orttlie promise, it is enough.'' Hrett, L. J., says, at page '212 of the same report, " the eviileiice need not prove a promise ; all that is wanted is corroltorative eviilence of it." What is sutlieient cor- rohoration uiuler our statute of the eviilence of the surviving jiarty to a trans- actit)n ill an action against the re])re9entatives of the other party thereto, was consideretl and actetl on in B'inhcll v. Johiinini, *24 ( Ji-atit, 202 ; alst> where tht- cvitlence was etirrohorative in an action hy a representative in Fuidlcji v. Pcdati, 2(5 C. P. 4Sli. A similar tpiestion arose under the Act relating to forgery in lieij V. HainK'rman, 43 U. 0. U. 547. It will he seen that in all these eases, as well in the Knglish Courts as our own, the temlency of tlecisitm has been hi favour tif cDiisiclering the corroborative evidence as suflficient. See also !{('<]. v. I'carai, 17 <l B. <»(>2, note (n) ; Lawrence v. fm/mire, 20 L. T. N. S. 391 ; f/odijets V. Bennett, 5 H. <& N. 025 ; Jlarrh v. Harris, L. II. 2 P. & D. 77. P£^->"^'m.'V pH'.r''.;h , RULES GOVERNING THE PRODUCTION OF TESTIMONY. "■"^■^Tl The following tire tlio gonomi rules governing the production of testimony : 1. The evidence adduced in nny cnne must, suhstiUitiidly conc- Kpnnd with tlu; idlegntiuns; it must 1)C confined to the points in issue. The i)urthen of provini,' a proposition ut issue lit'S on (lie p;irty hold- ing the sul)stiuitiiil ailirniiitiv<! ; and the hest evidence of wliich the case in its nature is susceptible must always he produi'cd : Taylor on Ev. ss. 172-2;}8. 2. The evidence must be confined to tlie points in issue : Tayloi , ss. 'J.3l)~3;iG. 3. The burthen of proof lie.s on the party who substantially asserts the atlirmativo of the issue : Taylor, ss. 337- .'3G2. 4. T'.ie best evidence of which the case in its nature is susceptible should always be presented : Taylor ss. 303-397. 5. Secondary evidence is inadmissiltle until it be shewn that the production of pi-iumry evidence is out of the jjarty's power : Taylor, ss. 398-497. G. That degree of evidence is obviously most satisfactory to the mind which is afforded by our senses : Taylor, ss. 49h-r)OG. 7. Heai'say, or what is termed second hand evidence, is a sj)(>cies of proof which, with some exceptions, cannot be received in judicial investigation. These exceptions may in a general way oe stated as-— (1) Casesrelating to matters of public or generalinterest; (2) those relating to pedigree; (3) those relating to ancient ])ossession ; (4) declarations against interest ; (.i) declarations in the course of office or business ; (G) dying declarations : Taylor, ss. 507-652. 8. Admissions are received as a suhstittite for the ordinary and legal proof, but the whole statement containing the admission must be taken together, yet it does not follow that all the parts of the state- ment should be regarded as equally deserving of credit : Taylor, ss. 663-788. 'i:'--\ 350 EVIDENCE — STATUTES. [Rs. 9, 10. 11 srf V :> •• ■■: ;: T •>■•■/■''. ■?>■ ," ~ y-i'i \ *. ■ .,' 9. The law excludes or dispenses with some kinds of evidence on j^rounds of pul)lic policv, sucli as comniunicationa between husband and wife ; between client and his Counsel, Solicitor or Attorney ; nor arc Judges, Arbitrators or Counsel compelled to testify as to certain matters in which they have been judici.illy or professioiially engaged. Secrets of State are also excluded, so also is evidence of mistake or misbehaviour on the part of a jury, unless such can be given iroin outside sources; evidence of that which is indecent or offensive to public morals, or injurious to the feelings of third person.s, the parties themselves having no interest in the matter except what they have impertinently created, is also excluded : Taylor, ss. 829-868. 10. As a general rule, parol testimony cannot be received in suits between the parties to the instrument and their re)>i-esentatives, to (-•ontradict, vary or subtract from the i erms of a valid written instru- ment; but evidence is receivable to show that the instrument is alto- gether void or that it never had any legal existence or binding force, either by reason of forgery or fraud, or for the illegality of the sub- ject-matter, or for want of due execution and deliveiy. So also is parol eviilence receival)le to pi'ove that the contract was made for objects forbidden by statute or common law : that the writing was obtained by duress, or that the party was incapable of binding him- .self by reason of infancy, coverture, idiotcy, insanity or intoxication, or that the instrument came into the hands of the plaintiff without any absolute and final delivery by the obligor or party charged, or in the case of a simple contract that it was made without consideration : Taylor, ss. 1031-1113. Statutes, or parts of Statutes, affecting or referring to Division Courts or their jurisdiction, ami not specially referred to in other parts of the work. Rev. Stat. cap. 6, ss. 19-22. — Establishment of Division Courts iu the Pro- visional County of Haliburton. Rev. Stat. cap. 7, ss. 18-22.— Establishment of Division Courts in the Terri- torial Districts of Muskoka, Parry 8ouhiI and Thunder Bay. Rev. Stat. cap. .".S, s. 18. — In cases of appeal untkr the Drainage Act, Division Court Clerks to issue execution. Rer. Stat. cap. 48, s. 7. — Judge of County or other Court, and officers of any Court of Justice exempt from service as jurora. ^ STATUTKis. 351 I't Rev. Stat. cap. /)0, ss. 312, 316, 318. — Have reference to garnishee proceed- ings in Superior and (Jounty Couita for amounts within 1). C. jurisdiction, Hov. Stat. cap. 59, a. 351. — What costs recoverable in actions against Clerks aiid Bailiffs. •Rev. Stat. cap. 61, sec. 1, et mq., and 42 Vic, cap. 16. — Limitation of Actions. Rev. Stat. cap. 62.— The Evidence Act. Hev. Stat. cap. 62, s. 38, et seq, — lleception of Atfidavits, &c., made out of Ontario. /b. , 3. 48. — Proof of copies of telegrams, &c, Uev. Stat. cap. 63. Appointment of Commissioners for taking Affidavits. Rev. Stat. cap. 68, s. 16. — Division Court attachment superseded by attach - mont from Superior or C. C. Rev. Stat. cap. 90, s. 9, et «er/. —Establishment of Division Courts in unor- ganized tracts, and their jurisdiction. lb., a. 45. — Action by or against Stipendiary Magi.'^trate may be brought in I). C adjoining his District. Rev. Stat. cap. 119, s. 18. — In Territorial Districts chattel mortgages to bo registered with the D. C Clerk. Rev. Stat, cap, 120, s. 12. — Proceedings for recovery of mechanic's lien to bo taken in D. C. in certain cases. Rev. Stat. cap. 144, s. 24. — Penalty for improperly practising as a dentist may bo recovered by suit in U. C Rev. Stat. cap. 149, s. 22; cap. 150, s. 38; cap. 152, s. 52; cap. 15.3, s. 37; cap. 155, s. 10; cap. 157, s. 46; cap. i58, s. 1 ; cap. 1(54, s. 23; cap. 165, s. 27.- Where joint stock and other companies and societies may enforce payment of calls. Rev. Stat. cap. 149, s. 43; cap. 150, s. 60. — Service of process on such companies. Rev. Stat. cap. 168, s. 16. — How tines imposed by Mechanics' Institutes recoverable. Rev. Stat. cap. 174, s. 136. — Penalty for voting twice recoverable in D. C Rev. Stat. Ih., s. 207. — Penalty for corrupt proceeiHngs recoverable in D. V. liev. Stat. cap. 180, s, 61. — Costs of ajipeal frmn Court of Revision may bo enforced by execution from D. C. Rev. Stat. cap. 198, s. 8. — Award made under Line Fences Act enforceabl« in D. C. Rev. Stat. cap. 199, s. 10. 41 Vic, cap. 12. — Award made under Act re- specting Ditches and Watercourses enforceable in D. C. 41 Vic, cap. 8, s. 6. — Amending sec, 54 of the "Division Courts Act." 42 Vic, cap. 19, 8. 8. — Defines jurisdiction* of Stipendiary Magistrate hold' ing Division Courts in certain parts of Thunder Bay and Nipissing. 42 Vic, cap, 19, s. 9,— Exceptions to their jurisdiction. 42 Vic, cap. 19, 8. 10, s-s. 2. — On vacancy occurring, Clerk of First D. C, Thunder Bay, to be ex officio Deputy Clerk. 'K';\ .-• \ i-- V'?- ^ mm 4*.i.-^'^>l''i" *^ ^•■^•■.i ■■■■■■' if f.>'-;i:«1VVFAS ■Si' If'-., ,". ■' 3.i?. ■}'■■■",- ■ DIVISION COURT CLERKS AND THEIR P. 0. ADDRESS. Inspector— SOS^Vn DICKEY, P. O. Box 50, Toronto. [NoTB.— The information licro rotitaini'd cannot long he relied on. Doatli, removal .-^nd rnsi^' nation liiiiii; so mimy diaiist's tli.it, after tlic jireseiit j'ear, it Uould lie advisaliloto consul! " The C:iiiii(lian Aliiiaiiae " as well, where annually a comiilete list of Clerks is given. It has after eoii.siilerMtion lieeii ('(iiisidereil uiiiieeessary to insert the boundaries of llio dillerenl Divisions. All necessary inforniation in IJivi-^ion Court matters can be lietter olitaiued from the Almiiuar alio"' referred to. or a maji, than from the mere statement of the liouiidaries, w'lleh also are the suliject of clinnge. Proximity to a Division Court ofliee can best lie ascer tallied by reference to a prood man. Wlieii we learned that a map, shewing the boiind;irie» of all tile Divisions in the rrn\iiiee, was being )mlilished by Miles ^ Co., of Toronto, tlie imitilitv of jiublishiiig the bound.iries liere liecame more ajiparent. A mark in red ink at the p:;st ulliei' address of the Clerks in an ordinary post ofllce map will hv found of great service.] ALGOMA D1.STRICT. Hon. Woltf'f McVrac, Jutlye^ Sault Sti'. Marie. I. II. Vj. Biggings, San It 8te. Marie. . .. James B. Bol.iie, Bruce Mines. lIT. Samuel McLean, little Current. IV. Wm. S. Francis, Manito-.vaning. V. James M. Fraser, (iore Bay. BRANT. 6'. J. JoiteA, Eaq., Jii'li)", Brantford. I. J. Robinson, Brantford. II. W. (iouinlock, Paris.- III. J. P. (ialloway, St. Ceorge. IV. Henry Cox, Burford. ., . T^ , \ Oakland, V. A.Fo9ter,]y^,^^j^JpQ_ VI. J. Henderson, Onondaga. BRUCE. J. J. Kinrfsmill, E»q., Judge, Walh'Hoti. I. William Collins, Walkerton, II. H. B. O'Connor, Te'33\vater. III. Joseph Barker, Kincardine. IV. Frank Crange, Paisley. V. Cyrus ('arroU, Port lilgin. VI. Hugh Murray, Underwood. VII. George Stirke, Invennay. VIII. B. B. Miller, VViarton. CARLETOX. W. A . Ros.'i, Esq. , Jiid'jr, ) ^;^^„^,,j Bohl. Li/on, E.'iiji.,,/. Jiii/i/i', ) I. John R. Armstrong, (Ottawa. II. Hugh Reilly, Riclimond. III. John Fenton, Huntley. IV. W. P. Taylor, Fitzroy Harhour. V. James Beeman, North (Jower, VI. Ira Morgan, xvletcalfe. Vll. F. \V. Harmer, Bell's Corners. ELGIN. D. J. Hn<ihe.^, Exq., Judge, St. TliomaM. I. Alexander Love, Aylmer. II. Charles Askew, St. Thomas. III. Charles Askew, St. ITionias. IV. Finlay McDiarmid, Rodney. ESSEX. (7. W. Leggatt, Exq,, Judge, SandiiHch. I. John C. Baby, Sandwich. II. J. H. Leggatt, Amherstburg. HI. E. Allworth, KingsviUe. IV. Charles Bell, Oxley. V. Jon. Wigfield, Leamington. VI. Raymond Lacroix, Belle River. VII. John McCrae, Winds. -. \ III. John Milne, Essex Centre. DIVISION COURT CLERKS. 3r>3 FRONTENAC. t'. V. J' lice, Ef»/., Juiltje, Kinndon. I. John Duff, Kingston. II. Peter McKim, Cataniqui. III. D. J. Walker, Inverary. IV. Charles Rattan, Loughboro'. V. James Grant, Verona. GREY. Henry Macphermn, Efiq., Judrje, Owen Sound, I. John Stephens, Owen Sound. 11. \Vm. Jackson, Durham. III. Thos. Plunkett, Meafor.l. IV. Thos. J. liorke, Heathoote. V. J. \Y. Armstrong, Flesherton. VI. Henry Cardwell, Chatsworth. HALDIMAND. J. G. Stevenson, Esq., Judge, Cai/uya. I. William Jackson, Caledonia. II. William Mussen, Cayuga. III. Thomas Armour, Dunnville. I^'. Isaac Honsberger, Rainham. V. Seth K. Smith, Cauborough. VI. Charles C. Bourne, Jarvis. HALIBURTON DISTRICT. Alexander Niven, Stip, Maaistrate, Minden. I. Charles D. Curry, Minden. II. Chas. A. Wastell, Haliburton. HALTON. Thomas Miller, Esq., Judge, Milton. I. II. III. IV. V. VI. William Panton, Milton. R. Balmer, Oakville. John Holgate, Georgetown. James Mathews, Acton. S. R. L'ster, Campbellville. R. Miller, Burlington. HASTINGS. Hon. Oeo. Sherwood, Judge. ) Belk' T. A. Lazier, Esq.,Jun. do \ ville. I. R. C. Hulmo Belleville. II. D. R. Ketchu9on, Wallbridge. III. H. Holden, Shannonville. IV. James lleid, Tweed. V. G. E. Bull, Stirling. VI. G. D. Rawe, Madoc. VII. Thomas Emo, Ivanhoe. VIII. Jacob Sills, Canifton. IX. Jeremiah Simmons, Trenton. X. I). Bentiey, Marmora. XI. James Mairs, Hridgewater. XII. John W^ilson, L'Amable. Isaac I. II. III. IV. VI. VH. Via. IX. X. HURON. . Squier, Esq., Judqe ) /> , . , IP rn ' I' A i» [ Goderii-h. r. loins, Esq.,J.'^ ) John 8. McDougall, Godericli. Ludwig Meyer, Seaforth. W. W. Farran, Clint(m. Benjamin Fralick, Brussels. Thos. Trivett | j'f'^l*''). „ , , \ Centralia, P. <), John Cooke, Dunganuon. W. W. Connor, Baylield. Dixie Watson, Wingham. Michael Zeller, Zurich. KENT. A, Bell, Esq., Judge, Chatham. I. Wm. B. Wells, jr., Chatham. II. J. Duck, Morpeth & Ridgetown. III. S. Wallace, Dresden. T^T- n V i Rond Eau, IV. G.Young, I Held at Blenheim. V. John Lillie, Wallaceburg. VT T T.,,,1.... S Bothwell P. 0. and VI. J. Taylor, -j .j^^h^n^esville. VII. D. R. Farouharson, \ '^''^^'''^ ^''^''■• ^ ( H'd at Merlin tAMBTON. Chas. Robinson, Esq., Judge, Sarnin. I. H. M. Poussett, Sarnia. II. A. D. Elliott, Watford. III. William Webster, Florence. IV. Peter Cattanach, Sombra. V. Thomas K. Scott, Ogemah. VI. Thos. Kirkpatrick, Thedford. VII. Robert Dale, Mooretown. VIII. W. G. Fraser, Petrolia. IX. J. W^ Brennan, Alvinston. LANARK. W, S. Seiikler, Esq., Judge, Perth. I. Robert Jamieson, Peith. II. W. A. Field, Lanark. III. James Poole, Carleton Place. IV. W. M. Keith, Smith's FaUs. V. John Cowan, Pakenham. VI. John Patterson, Almonte. ■ ■ ■%■ 'I I, I' .. 23 354 DIVISION COLUT CLERKS. * -i^y. •'•I 't ;;■■?■" ' •■' • LKEDS AND OBENVILLE. //. S. Mac(l(fnal(l, Eaq., Judge, BrockvHle. I. David B. Jones, Brockville. II. B. White, Prescott. III. 8ani. McCammon, Gananoqiie. IV. IX. Leslie, Kemptville. V. E. H. VVhitmarsh, Merrickv'le. VI. W. H. Denaut, Delta. VII. H. MeCrea, Frankville. VIII. H. Kilhorn, Newboro'. IX. David Mansell, Farmersville. X. Daniel H. Keeler, iSpencerville. XI. B. Colborn, North Augusta. XII. A. A. Munroe, Mallorytown. LENVOX AND ADDINGTON. W. 11. Wilklson, Esq., Judge, Nap- nnee. I. Charles James, Najjanee. II. Charles L. Rogers, Bath. III. J. J. Watson, Adolphustown. IV. Peter Johnstone, Camden E. V. William Whelan, Centreville. VI. Henry Pultz, Wilton. VII. Thomas Miller, Tamworth. LINCOLN. E. J. Senkler, Esq., Judge, St. Cath- arines. t. W. S. Wiuterbottom, Niagara. II. W. A. Mittleberger, St. Cath- arines. III. Robert Thompson, vSmithville. IV. John C. Kerr, Beamsville. MIDDLESEX. Win. Elliott, Esq., Judge. ) r .„,;_„ Fred. Davis, Esq., J. Judge. S ^<"'"^"- I. John C. Meredith, London. II. G. G. Hamilton, Ailaa Craig. III. John Flanagan, Clandeboy. IV. C. J. Fox, Delaware. V. Andrew Wilson, Glencoe. VI. John English, Strathroy. VII. Thomas Smith, Nilestown. VIII. James Grant, Arva. IX. Henry Imlach, London East. MUSKOKA DISTRICT. Clias. W. LourU, Ea(j., Stip. Mag., Bracehrkige. I. T. M. Bowerman, Bracebridge, TT T TT T 1 ( Severn nridgc, II. JaS. H. Jackson, ' Hiaa at Grav.n- ( hurst. III. Bernard Phillips, Huntsville, IV. Geo. C. Hazlewood, Pt. Carling. NIPISSING DISTRICT. John Doran, Esq., Stip. Mag., Pern- broke. I. John McMeekin, Mattawa. NORFOLK. T. B. MacMahon, Esq., Jadgc, Siincoe. I. W. R. Griffin, Simeoe. II. E. Matthews, Waterford. III. R. Green, Windham Centre. IV. C. S. Harris, Courtland. V. W. Hewitt, Vittoria. VI. S. P. Mabee, Port Rowan. VII. T. Chamberlain, Hdughton C. VIII. L. Skey, Port Dover. NORTHUMBERLAND AND DURHAM. G. M. G. M. I. n. III. IV. V. VI. VII. VIII. IX. X. XI. Boswcll, Esq., Judqe, } ^ , /-I I 7. z^ T T 1 Y Cohouni. Clark, Esq., J. Judge. ) F. Cubitt, Bowmanville. Samuel Wilmot, Newcastle, G. M. Furby, Port Hope. John Hunter, Millbrook. A. G. Boswell, Cobourg. Thomas Bingley, Grafton. William Johnson, Colborne. M.P.Ketchum,Dy.C. Brighton, R. P. Hurlbut, Warkworth. Charles W. Smith, Wooler. Daul. Kennedy, Campbellford. Whithii. ONTARIO. Z. Buniham, Esq., Judge. G. IT. Dartnell, Esq. ,J. *' I. D. C. Macdonell, Whitby. TT •»«■ /-ii \ Greenwooil. Hclij II. M. Gleeson, ■{ „,. „ , ' ^ at Brougliam. III. J. W. Burnham, Port Perry. IV. James E. Walks, Uxbridge. V. Charles Burnham, Cannington. V VI. Charles Robinson, Beaverton. VII. H. E. O'Dell, Atherly. OXFORD, D. S. Macqueen, Esq., Judge, Wood- stock. I. F. W. Macqueen, Woodstock, II, Jeremiah Cowan, Princctou. 7 r /i>>/,/c/i/ <-o wm DIVISION COURT CLERKS. 355 III. Donald Matheson, Embro. IV. James Barr, Norwich ville. V. David Caiitield, Ingersoll. VI. John Hodgson, Tilsonburg. TARRY SOUND DlSTRTOT. P. McCurry, Em/., Stip. Ma<jinlrate, Parr 11 Sound. I. F. A. Foley, Parry Sound. II, Henry Armstrong, McKellar. III. E. Sirret, Ashdown. IV. Alex. McKenzie, Beggsboro'. V, Samuel (jr. Best, Maganetawan. PEBL. A. F. Scott, E>ii[., Judije Brampton. I. T. A. Agar, Brampton. II. Adam Simpson, StreetsviUe, III. John Harris, Caledon. IV. K R. Bolton, Albion. PERTH. I). II. Lizarx Enq,, Judge, Stratford. I. I). B. Biirritt, Stratford. II. Thomas Matheson, Mitchell. III. James Coleman, St. Mary's. IV. Cieorge Brown, Shakspeare. V. James D. Whaley, Miiverton, VI. D. D. Hay, Listowel. PETERBOROUCJH. Robert Dtnnidoun, Esq., Judge, Peterborough. I. R. W. Erritt, Peterborough. II. John A. Buttertield, Norwood. III. Thomas Campbell, Keene. I V. Samuel Sherin, Lakefield. V. C. R. D. Booth, Apsley. PRESOOTT AND RUSSELL. ,/(i.s. Danlell, Esq., Judge, L'OrignaL I. E. A. Johnson, L'Orignal. II. John Shields, Vankleek Hill. III. Wm. Allison, E. Hawkesbury. IV. Jas. VanBridger, Plantagenet V. J. S. Cameron, Cumberland. VI. A. Carson, Duncanville. VII. T. Higginson, Hawkesbury Vil. I'TTT T T^ \ Caledonia Flats VIII. J,Downmg, j Fo„rnier P. O. PRINCE EDWARD. R. P. JelUtt, Eitq., Judge, Picton. I. William Young, Picton. il. H. H, Haight, Milford. III. Israel Hamilton, Demorestvillo. iV. Edward Robhn, Roblin's Mills. V. J. B. (Jarratt, Wellington. VI. Obadiah Cooper, Bloomtield. VII. J. M. Cadnian, Consecon. ■I'^TTT 1.^ II ■ i N. Marysbiirtrh V III. E. Harrison, i ,,r •' ,,7. ' ( Wauijoose, P.O. RENFREW. John Deacon, Esq., Judge, Pemhroh-. I. Andrew Irving, Pembroke. II. 'IMiomas Thwaites, Beachbiirg. III. (ieorge Eady, jr., Renfrew. IV. (Jeo. E. Neilson, Arnijrior. V. James Spenceley, Dacre. VI. James Reeves, Eganville. VII. Rdbert Allen, Cobden. Vni. John C. Gurney, Rockingham. J. R. J. A. I. II. IJI. IV. V. VI. VII. VIII, IX. X. XI XII STMtOE Gou-nn, Esq., Judge, I Barrif A rdagh , Esi/. , J. Judge, \ Thomas 1>. Lloyd, Barrie. H. \S . Manning, Bradford. \V, H. Dickson, Beeton. Adam Dudgeon, Collingwood. Abraham Craig, (.\-aighur3t. Thomas Dallas, Oriilia. John A. Love, Stanton. G. McManus, Mona Mills. H. E. Jeffery, Penetang shene. John C. Steele, Steele. , Angus Bell, New Lowell. Thomas Gordon, Aliiston. STORMONT, DUNDAS AND GLENGARRY. ,/. F, Pr ingle, Esq., Judge, Cornwall. I. G, H. McGillivray, Williamst'n II. C. D. Chisholm, Alexandria. III. James F, Pringle, Cornwall. IV. C. Archibald, Dickinson's L'ng, V. J. VV. Loucks, Morrisburg. VI. John S. Ross, Iroquois. VII. Wra. J. Ridley, S. Mountain. VlII. John A. Cockburn, Crysler. IX. P. Stuart, River aux Raisins. X. William Rae, Chesterville. XI. Donald Mcintosh, Monklands. XII. J. A. McDougall, Alexandria. THUNDER BAY DISTRICT. R. Laird, Esq., Stipendary Magistrate, Prince Arthur's Landing, I. C. K„ei=hm™, j ^j^^^' 11. John Aitkens, English River. I .'I ' t| "4 ■J". „ * pi Ti'/iU - ■ J'D ••.?3".|i,..,.. 350 DIVISION COURT CLERKS. VICTORIA, ir. W, Dean, E>>q., Judr/e, Lindsay. I. G. W. Millar, WocKlville. II. G. C. Cunningham, Fenelon F's. III. Irvine Junkin, Bobcaygeon. IV. Dr. Higinliotham, Omemee. V. James McKibbin, Lindsay. VI. J. F. Cunnings, Oakwoocl. VII. G. W. Millar, Victoria Road. WATERLOO. W. Miller, Esq., Judge, Gait. A. Lacourse, Esq., J. Jud<je, Berlin. I. Andrew J. Peterson, Berlin. II. Otto Klotz, Preston. III. Peter Keefer, Gait. IV. William I>. Watson, Ayr. V. John AUchin, New Hamburg. VI. Robert Morrison, Hawksville. VII. John L. Wideman, St. Jacobs. WEl-LAND. Holland Mardonnld, Esq., Judge, Welland, I. G. Lambton Hobson, Welland, II. Edward Lee, Marshville. III. Thos. Newbigging, Fort Erie. IV. J. A. Orchard, Drummondville. V. George Keefer, Thorold. Oiielph. WELLINGTON. A . Macdonald, Esq. , Judge. A . C. Chadwick, Esq. ,J." I. A. A. Baker, Guelph. II. William Leslie, Puslinch. III. Henry McCarthy, Eockwood. IV. T. A. W. Gordon, Fergus. V. William Tyler, Erin. VI. John McLean, Elora. VII. George Allan, Glenallan. VIII. Cornelius O'Callaghan, Arthtu. IX. Guy Leslie, Orangeville. X. A. C. R. Saunders, Han-istoii. XI. James C. Wilkes, Mt. Fwest. XII. D. Macdonald, Drayton. WENTWORTH, J. S. Sinclair, Esq., Judge, Hamilion I. H. T. Bunbury (Eastern Divi sion), Hamilton. II. F. D. Suter, Dundas. III. Jas. McMonies,Jr.,Waterdow» IV. Wallace McDonald, Rocktt«n. V, A. G. Jones, Stoney Creek. VI. L. A. Gurnett, Aucaster. VII. John McCleraont, (Jlanford. VIII. J. T. Taylor, Hall's Corners, Biubrook, P.O. IX. William M. Davidson (Western Division), Hamilton. YORK. K. McKenzie, Esq., Judge. ) rp John Bond, Esq., J. Judge. \ ^ ("''""''>■ I, A, McL. Howard (Ea- ern Division, East of Yonge Street), Toronto. II. John Stephenson, Unionville. III. Jas. Lawrence, Richmond Hill. IV. John Cook, Newmarket. V. William Fry, Georgina. VI. A. Armstrong, Lloydtown. VII. J. Reamer, Woodbridge. VIII. John Paul, Weston. IX. J. H. Richardson, Highland Creek. X. E. Duggan (Western Division^ West of Yonge Street), Toronto' 1:^^ '■■■•■ 'Wry ^.J.KiV.k : mm II! 'V ll« (■ " 1 INDEX. ABANDONING EXCESS. Rule as to, 81, 240. ABANDONMENT. Effect of sale by debtor after, 176. Chattels lent by Sheriff not deemed, 176. Wliat deemed, and what not, 176. Long delay does not amount to, 176. Taking execution to Clerk for renewal does not amount to, 176. ABATEMENT. Where one of plaintiffs or defendants dies before judgment, 274. Where one of plaintiffs or defendants dies after judgment, 274. ABODE. Place of, parties, to be stated in claim, 239. ABSCONDING DEBTORS. What acts render persons liable to be treated as, 199, 200. Intention to remove property not sufficient, 200. Procedure in case of, 200, 201, 202. Attachment against, improperly issued may be set aside, 202. When Justices of the Peace may issue attachments against, 203. Bailiff or Constable to seize, and make inventory, 204. Duties of, under writ of attachment, 204. Form of inventory of effects of, 205. Proceedings commenced against, before attachment to continue, 205. Property of, attached may be sold under execution, 206. Plaintiff not to divide cause of action, 206. If several attachments issued, 206. If goods insufficient, 207. Clerk to take charge of goods attached, 207. Trespass, trover or replevin not maintainable against Clerk for gooils attached, 208. Clerk liable to ordinary responsibilities of depositary, 208. Proceedings if debtor does not appear, 209. If summoned personally, 209. Proceedings against, where process not previously served, 210. Perishable goods of, how disposed of, 211. Creditor to give bond to indemnify officer and bond to be filed, 212. Residue, how disposed of, 212. Bond may be sued in Division Coui-t, 213. Judge may deliver up bond, 213. When several attachments issued, 247. Form of affidavit for attachment, 285. Form of attachment against, 286. Superseded by attachment from Superior Court, 351. Bond on Supersedeas, 322. Form of Appraiser's oath, 333. Bond on seizure or sale of perishable property, form of, 334, ACCOUNTS. Under .^100 suable in Division Courts, 63. ^ •,■ fi ■■■'1 ' ■ '- .! '1 ; - 1(. , s *: 358 INDEX. ^ 1 4 ;- i > ACCOUNT STATED. What necessary to i)rove in action for, 64. ACTION. General rnles applicable to, 50. Against ofticers and sureties, form of particulars in, 288. What costs recoverable in actions against, 351. Cominencemeut of, 241. Discontinuance of, 270. ADDRESS OF PARTIES. To be left with Clerk, 266. ADJACENT DIVISION. Judge may allow action to be brought in dinsion adjacent to defendant .s residence, 89. Leave to sue in, 242, 265. Form of atlidavits for leave to sue in, 283. ADJOINING COUNTY. Judge may sue or be sued in, 90. Defendant living in, when special summons returnable, 242. When none of defendants reside in, when returnable, 242. ADJOURNMENT OF SUIT. Judge may order, 106. No order to l»e served unless directed, 270. When practice not complied with, 270. For particulars or further particulars, 270. ADMINISTRATORS. See Executors and Ai>ministrator.s. ADMISSION. N otice of, to save cost in proof, 268. . Form of, ;.-M, 322. ADMISSION OF DEBT. Signed by garnishee, form of, 301. AFFIDAVITS. May be received as evidence in certain cases, 134. May be sworn before Judge, Clerk, or Commissioner, 134. Requisites of, 269. Reception of, when made out of Ontario, 351.. Forms <^ — For leave to sue a party residing in adjacent division, 283. For leave to sue in a division adjoining one in which debtor.-^ reside, when there are several, 28.^ Schedule referred to in aJbove affidavit, 284. For attachment, 285. To obtain Judge's order for writ of replevin, 286. To obtain writ of replevin without order in the first instance, 287 . Of service of ordinary summons, 323. Of service of special summons, 323. Of execution of confession, 324. Of execution (caption), 324. Jurat to, by illiterate deponent, 326.. Of justification, 326. Of disbursements to several witnesses, 327v For revival of judgment, 328. Oath of deponent swearing thereto, 325^ mm INDEX. 351> AFFIRMATION. Form of alUrmation by Quaker, etc., and jurat tliereto, 32(}. A(rENTS. Any person may act as, 107. Juilgc may prevent persons acting as, 107. Clerks and Bailiffs not to act as, iJGO. S<-i' Principal and Anent. A<iISTMP:NT OF CATTLE. Action for, 65. •,.■■. ALGOMA. Rules to apply to, 277. ALIAS. To be date<i when issued 241. ALIEN, Right of, to sue, 56. ALLOWANCE TO WITNESSES. Scale of, 273. See Witnesses. AMENDMENTS, On proceeding by special summons, 245. When one form of summons used instead of another, 261. Striking out name if defendant, etc. , 262. In actions in name of Assignee of those in action, 262. When suit in plaintiff's own right instead of iu representative character, 262. When name, etc., of plaintiff insufficient or incorrect, 262. Non-joinder or misjoinder iji action by husband and wife, 263. When a greater numl)ev made plaintiffs than Law requires, 263. When a less number made plaintiffs than law re(iuires, 263. When more persons made defendants than law requires, 263. When some of several defendants not served, 263. When name, etc., of defendant insufficient or incorrect, 264. When a person other than defendant admits at hearing, he is the party, 264. When a person wrongly sued in representative character, 264. As to variances, 265. Judge may at all times amend defects and errors, etc. , 265. Amendments orderetl, Clerk to make proceedings to correspond, 265. APPOINTMENT. Of umpire to be endorsed on order of Reference, 297. (a. ) For meeting on Reference, 297. (/>. ) Of Clerks and Bailiffs, see Clerks and B.iiliffs. APPLICATION. Of Bailiff for Interpleader, 247. Form of, 288. For Judgment Summons, 240. Form of, 292. APPRAISERS. Fees of, 39. Allowed by Act, Form of, 279. Oath of, Form of, in Attachment cases, 333. APPRAISEMENT To be endorsed on inventory, 333. lO, ' 'i- "L'l "•:■ -y- f ,. '\ '• ' \ ^ I ;J .7^'^ . '-: '■*'■•' i :m) INDEX. '^'l'.!'';' •'■V ARBITRATION. .ludgo may order cause to be referred to, 164. f "imsent necessary in Division (!ourt, 104. Wlien married women may be i)arty to, 164. Infant cannot refer, 165. Partner cannot bind eo-jiartner by reference to, 165. Corporations can refer, 165. Agent can refer, 165. Att( rney and counsel can refer, 165. E.xec'itor and administrator may sulnnit to, 165, Submission, by word of mouth binding, 1(55. " not amendal)le without consent of ])artie8, 165. " cannot be altered to allow set-olf, 165. " operfitcs as stay of proceedings, 165. Who may be arbitrator, 165. Arl)itrator must be incorrupt, 165. Arbitrator judge of law and fact, 165. Effect of award made after limited time, 165. When award made, arbitiutor /h/m;<«.s oj/avi, 166. Power of enlarging time for award, 166. Duty of arbitrator in hearing evidence, 166. Arbitrator cannot be compelled to make award, 166. " cannot delegjite authority, 166. " may consult counsel on point of law, 166. Two arbitrators to concur in appointing third, 166. Arbitrators must all sign award, 166. Attorney for either i>arty should not draw up awaxd, 16(i» Notices of award to be given to parties, 1(56. Arbitrator may hold award till payment of fees, 166. All matters c(msidered should be in awaixl, 1(»7. Effect of matter being left undecided in award, 167. Effect of award in alternative, 167. Award must be certain to common intent, 167. Award not set aside for mistake of arbitrator, 167. Award may be good in part and l)a<l in part, 167. Award of non-suit not good, as not final, 167. If award for plaintiff, damages should be given, 167. Costs in awards, 167. Arbitrator should not award fee to himself, 167. Direction to pay money to stranger, effect of, 167. Doubtful Avhether Division Court award can be referred baclt, 167. Effect of not bringing claims before arbitrators, 167. Performance of award, 167. Action may be brought on award, 167. What necessary in proving award, 167. Award no evidence against strangers, 167. Grounds for motion to set aside award, 167. Arbitrators not bound by strict rules of Court of Law, 168. " cannot determine questions by correspondence, 168. Differences in law may be referred, 168. Irregularities waived by parties appearing before arbitrators, 168. Taking evidence on oath may be waived, 168. If arbitrator admits mistake award set aside, 168. ^Vhen arbitrator enters on office, 168. Entertainment of arbitrators is improper, 168. Appointment of umpire, how made, 168. Submission to, only revocable with Judge's assent, 168, INDEX. 'M\ M{l',]TM\'V\0^~{Con(i)uml.) llovocation at C'oniinon Tiaw, 108. Application to rcvoko, when to be made, 168. Jht'okuKj mthmixxion. iJiHcrution to revoke, how exercised, 168, Arbitrator mistaking law, yood grounds for, 168. Kvidfncu taken unknown to i»arty, good grounds for, 16!). Corruption in arbitrator, good ground for, 168. ( )r gross miscon<luct, Hilt. Marriage of female revokes at Common fiftw, 169. When umpire's autliority begins, 169. Effect of (feath of arbitrator on paities, 169. AVhat deemed no ground for revocation, 169. What general ground for revoking, 1(59. Award to be entered as judgment, 169. Judge may set aside award, 170. (Grounds for setting aside, 170. If Judge refuse, decision cannot be reviewed, 170. Arbitrator may administer oath, 17'). Fitrtnn in — Order of reference to, 296. Fonn of oath to be administered by arbitrator to witness, HH) {m ). Award of arl)itrator, 297. Summons for witness to appear before, 298. ASSAULT AND BATTERY. Action for, 63. ASSETS. (Jiiando acciderint, general order respecting, 254. ASSUMPSIT. When action on, lies, fiS. ATTACHxMENT. When hearing to be, when defendant not personjilly served, 246. Right of attaching creditors to dispute claims, 246. Athdavit for, in garnishee proceedmgs, 251. Form of affidavit to obtain, 285. Form of, against absconding or removing debtor, 286. Book (debt), entries in, 25.S. Form of, 282. Attachment of dcht^. See Garnishee Proceedings. Against absconding debtors. 286. When several creditors each may enter defence and call and cros.-!- examine witnesses as to other creditors' claims, 247. See Absconding Debtors. ATTORNEY. County Court Judge cannot practice as, 17. Notice that bill not delivered necessary in action on, 122. ATTORNEY'S BILL OF COSTS. What plaintiff must prove, 65. Practising, eaunot be Clerk, 21. AWARD. Action on what plaintiff must prove, 65. Clerk to enter judgment on, forthwith, 274. Of Arbitrator, Form of, 297. Form of Judgment on, 303. Affidavit of Execution, 324. See Abbitkation. -'■♦*•. ' r h4: 'I .102 INDEX. MS? mm ••Iv V *,' •* ' i ^ .^i^lS.r- i-'-iiuti'.'.' ■ BAHJKF. Kvory Court to have, 20. Who ijajxihle of htuiig, '20. ItufiKsal of, to |K'rforiii thitioH, eU'ect of, 21. •)ii<lgu to appoint and roniovu, 22. Sucurity t(» l)0 given by, 22. Sir SkcUHITV. Wiioii entitled to notice of aetioii, 2f», 2H0. Liability of, for noglccting warrant of commitment, 2G. Duties of, .T), .'«), ;<7. To ""rvo writH, .35. To exerci j duties of constable during holding of Court, 37. Kkks (tv—Sri' Fkks. May bo sued in adjoining Division Courts, 89. Duty of, when process executed at a ilistanee, 0<5. May seize i)roperty of lirm, on certilieate of Judge, 98. May taiie confessions of debt, 170. In wiiat order to enforce executions, 17.3. SJiouM not purchase at sale conducted by himself, 174, 189. Liability of, for conchicting sale negligently, 174. Wliat goods can be seized oy, under execution, 174, 175, 18(>. Etlect of seizure by, when sale after removal from of lice, 175. Sale by, after notice ot Insolvency, contempt of Court, 175. fin warranty of title at sale by, 175. To hold cheipies, notes, etc., seized under execution for benefit <>r jilaintiir, 187. To endorse date of seizure and give notice of sale, 188. '*uty of, on warrant of connnitnient, 195. Not justiHc(l to break open house, 195. If party captured escape, may follow him to house of another, 19G. What constitutes arrest by, lUG. What force may be used by, 190. To seize and make inventory under writ of attachment, 204. Protection of, from .issault, 224. Misconduct of, how puni.shable, 224. Extortion by, how imniahable, 225. Punishment of, neglecting duty in relation to execution, 225. Action against, and sureties, for neglect to return execution, 27, 22(J. Execution against, to issue instanter, 220. If removed, sureties nevertheless liable, 220. Protection of, acting under warrant, 227. Demand of perusal of copy of warrant to be made before action, 227- Entitled to verdict on production of warrant, 228. Entitled to verdict on producing warrant when Clerk joint defendant, 229. Entitled to notice of acti(fh, 2.30. Even if indemnified, 2.30. What should be stated in notice to, 2,30. Plaintiti' not to have costs against, in certain cases, 231. May tender amends and plead general issue, etc., 231. Covenant by, form of, 23, 235. Costs of interpleader to be allowed if case dismissed, 248. To take bond before replevying, 249. To replevy before serving summons, 250. To serve summons from foreign divisions and make return forthwith, under Rule 90, 256. When to serve ordinary summons, 257. im ii?.;-!'^.-;.,; , mm INUKX. atj.j HAIIJI'F {r„„fhiurfl) W'lioii iniil ln>\v t(i serve huhiiikhis, iiinlor I77tli Bectioii, 2r)7. 'I'o iimkc ix'tmii of hiiiniiKui.s in six lUiya, 258. I!i!tiiiii t(i hIii'W iiioiU; of Hf» viio, 'JoS. 'I'o make iiflidiivit of Hcrvii'i', -TkS. Wliiit fee to l)e entitled to, '2'tH. If snninioMH not Herved, return to l)o made to Clerk forthwitli, 'J'lS. 'I\i hIiow reii.son of non-st-rviee liy euilorsenient on siiinnions, 'J.IH, To attend every .sitting of Court iuul make siiital)le [ireparutiona, 2.')!>. To nuike proelanuitions, '2'y{). To preserve ordei', 'J.")!(. To eall partiew and witneases, 250. To be entitled to live eenta in tlefended cases for ealliug parties ami witnesses, 2.")i). To keep Bailill's Process Hook, 2.V.). Kntries to he niaile therein. 25!t. To give suitors information of contents, 259. Hook to l)e optsn to ('lerk or Judge, 25!(. To lUdivcr return to Clerk on oath at every sitting, 250. Ueceiving money shall pay over or transmit ou penalty of forfeiture of office, 2(i(). Not to withhold money fn>m siiitors, 2(»0. Not to hinder or delay proceedings of foreign or homo Conrt> 200. Forfeiture of fees for doing so, 2(iO. Not to ]mrchase or have interest in suit or claim, 2(i0. Not to l)e engaged as agent for either jtarty, 200. Delivering deliniiuent to prison to endorse ou warrant of conmntmeat. amount of mileage, 201. Schedule of fees to, 270, 337. Fofm-'*, Particulars in case of action against form of, 288. Api)lication of, for interpleader, form of, 288. I'kCiilevin bond, i{31. Assignment to be endorsed if required, 332. Keturn of, to writ of replevin, 332. Inventories of goods seized or replevied, 332. Appraiser's oath on attachment cases, 333. Appraisement to be endorsed ou inventory, 333. Notice of sale, 333. Returns to executions, 3.33. Return when rent levied by Bailiff, 334. Bailiti''s return to Clerk, 335, BAILMENT. Action on, 65. barristp:h. Practising, cannot be Di\'ision Court Clerk, 21. BENEFICIAL PLAINTIFF. When action under 171st section of Act, warning to defendant, 241. BEQUEST. Action respecting, not maintainable in Division Court, 52. BILL OF COSTS. To be made out by Clerk in detail, 258. Form of, 329. BILLS OF EXCHANGE AND PROMISSORY NOTES. When stolen or lost, plaintiff must prove value given, GL So if given in fraud of partners, 62. -11 l:'--i oG-i 1J<D£X. siia ri: .. i. 1 BILLS OF EXCHANGE AND PROMLSSORY 'NOTEB—(Contimml) Action on, 65. Notice that Bill not stamped must be given, 12L BOARD AND LODGING. Action for, 65. BOARD OF COUNTY JUDGES. To meet Third Monday in June, annually, 277. BONDS. Actions on, 65. Bond In replevin. Bailiff to take, 249. Form of, 331. Form of assignment of, 332. When delivered up to be cancelled, action to be discontinued, 249. Affidavit of caption, 324. In yarnhhee procetdhujs. To be given under section 143, 253. Form of, .301, 47 («.) In attachment against absconding debtors on seizure or sale of pcrishaliU property, 334. BOOKS OF ACCOUNT. Judge may receive in evidence, of plaintiff or def idants, 133. BREACH OF PROxMISE. Actions for, not maintainable in Division Courts, 53. CALLS FOR STOCK. Actions for, 65. CAPTION. Affidavit to Bond, Award, etc. , form of, 324. ( ARRIERS. Actions against, 65. CASE. When action on lies, 55. Difference between action on and trespass, 55. CASH BOOK. To bo kept by Clerk, 256. Form of, 281. CAUSE OF ACTION. Not to be divided, 79. What deemed division of cause of action, 79. Test for detemnining whether split, 79. To be tried in Division where arose, 84. This means wIwIa' cause of action, 84. Rules determining where arises, 85. When (contract by letters, 85, 86. " by Bill of Exchange, 86. Retainer of attorney where cause of action for costs arises, 86. Prohibition granted, when not in County where suit brought, 86. CAUTION. To parties sued, in chose in action, seized under execution, 241. CERTIFICATE. Of discharge of delinquent from custody, form of, 318. CERTIORARI. When attachment lies against County Judge for disobeying, 17. Proceedings in, not applicable to replevin, 75, 82. INDEX. 305 CEllTIORARI— (CoH^j«««/.) iJiscretionary writ, 82. Justice of Peace having notified objection, suit cannot be removed l)y, S'J. Interpleader lu'oceedings cannot be removed by, 82. Material facts to be adduced on application foi', 82. Does not lie after verdict, judgment or execution, 82. Wrony opinion of Judge no cause for, 82. After hearing, too late, 82. !"• oorts jurisdiction, 82. When granted, 82. Plaintiff not entitled to, 82. Judge not to be attached for disobeying, unless lie iivta contuniu- oiously, 82. Order for may be Ex jiartc, 82. A iiidavit for, how entitled, 82. Procedendo, remedy for, if imijroperly issued, 83. Application for, to be in Chambers, 83. Should l>e made by party or Attorney, 83. Return to should be under seal, 83. Proceedings in suit after removal by, 83, (Josts in suit removed by, 83. Affidavit for, form of, 83. Endorsement on writ of, form of, 84. Schedule to be annexed to, 84. CHEQUES. — See Btll.s of Exchange and Promi8.soky Notrs. CHOSE IX ACTION. Deiinition of, O'.?. Rules resijecting assignment of, 56, 57, Process when plaintitf sues on, 241. CLAIM. Plaintiff to enter co|ry' of, with Clerk, 90. What claim should shew, 91. To be ma«le by assignee if contract assigned, 91. Plaintiff' to furnish ijarticulars of, to Clerk for .service, 92. Service of, with summons to be 10 days before return, 92. When service to l>e 15 and when 20 days i)efore return, 93- When service to be personal or otherwise, 93. CLAIM AND PARTICULARS, Names 'rf parties and places of abo<le to Ije stated, 239. To be in detail according . ^ form, 239. When defencluiJt sued, under sec. 03, 240. In action against officer under security covenant, 240. When excess abai^ loned, 240. CLERKS, DIVISION CCURT. On separation of junior from senior Coamty, to deliver papers as directt'ii by Judge, 13. May adjoun. Court if Judge does not arrive in time, 20. Every Court to have, 20. Who capable of being, 20. Who diaqualified from being, 21. Duties of, 21. Refusal to perform, misdemeanor, 21 . Judge to appoint and remove, 22. Security to be given by, 22. See Securities. When Clerk may appoint deputy, 29. 366 INDEX. . •'■ .'■'.■'■V^;v^'■.'lv, -'J.V',-1 r,. ,' mm. C.'LERKS, DIVISION COVRT— {Continued.) To issue summonses, furnish copies, 31. To keep Record of Writs and Judgments, 31. Conclusive evidence, 32. To issue executions, 32. To tax costs. 32. To keep account of fines, 33. To suVjmit accounts to County Crown Attorney, 33. To submit verified accounts of fines to County Crown Attorney, 33. To furnish Judge with verified account of moneys paid in and out of Court, 33. To furnish Judge with semi-annual accounts of fees and emoluments, 34. Annually to make list of suitors' money in Court, 34. Copy of list to be put up in Coxirt and Clerk's office, 34. Upon resignation of. County Crown Attorney becomes possessed of papers, 34. To be paid by fees, 38. May sue or be sued in other Division Courts, 89. To forward sunnnuuscs foi service in other divisions, 90. Plaintiff to enter copy of claim with, 90. Plaintiff" to furnish particulars of claim to, for service, 92. To prepare affidavit of service of all summonses, 97- Parties may obtain subpienas from, 123. Commission to take evidence to be returned to, by County Court Clerk, 132. Affidavits may be sworn before. 134. Parties to give mitice to, if they recpiire jury, 141. Collector to furnish, with list of jurors, 143. May take confessions of debt, 170. To issue execution, 173. Not without order from party entitled, 173. Plaintiff wlien not to have costs in action against without certificate, 231 . Wliat costs plaintiff entitled to in actions against, 351. Covenant by, form of, 235. To notify plaintiff' when claim partly disputed, 243. To issue warrant of commitment on judgment summons, 195. To issue warrant for seizure of goods of .absconding debtor, 201. To take charge of, attached goods of absconding del)tor, 207. Trespass, trover or replevin not maintain.able against, for, 208. Liable to ordinary responsibilities of, depositary, 208. General order respecting, place of holding office, 256. Books to be kept by, and entries therein, 256. To number claims, 256. « Special sunnnons when warranted, to be used by, 256. To annex claim to summons, 256. Duties of, as to process for service in foreign division, etc, 256, 257. Return of emoluments to be made by, 257. Return of unclaimed moneys by,' 257. Service of summons under 177th sec. etc., 257. Manner in which papers in a cause are to be kept by, 258. Notice given by, of payment into Court, Form prescribed, 258. Notice of defendant's disputing claim, or other notices, 258, Costs to be taxed, on bill of items, in detail, 258. To file Bailiff's returns, 259. To examine same, and certify if correct, 259. If incorrect, to notify Judge, 260. Not to act as agent for either party, 260. •»^^ INDEX. 36; CLERKS, DIVISION COURT— (Cmithmd.) To notify tlie receipt of money — failing, subjected to loss of office, 2Cl). Not to withhold moneys from suitors entitled, 2C0. Not to hinder or delay proceedings, 260. Not to purchase or be interested m suits, judgments, etc., 260. Schedule of fees to, 279, 336. Particulars in case of actions against, form of, 288. Notices to be. yiven by — Of trial by jury, 320. Of new trial granted, 320. Confession given, 321 (1). When defendant disputes claim, 321 (2). Does not, 321 (2). Disputes certaih items, 321 (3). Claims set-ofi', 321 (4). Sets up statute of limitations, 321 (.5). Discharge under Insolvent Act, 321 ((>), Admits certain items of claim, 321 (7). ' Admits making bill or note, 321 (8). Pays into Court, 321 (1»). Pleads tender, 321 (10). That plaintiff not certiiicated Attorney, 321 (U). That bill or note not stamped, or stamp not cancelled, 321 (12). That plaintiff did not give notice of action. 321 (13). Defends under protecting clause of Act, 322 (14). Return of emoluments of, form of, 330. Form of, list of unclaimed moneys, verified, 331. A nd Siiret'u'x. Particulars in actions against, form of, 288. CLERK OF PEACE. To record time and place of holding Courts, 15. Clerks and Bailiffs to tile secureties with, 25. COLLECTOR. To furnish Clerk with list of jurors, 143. Proceedings against, for neglectuig to furnish Clerk with list of jurors. 145. Judge may fine for breach of duty, 145. Judge's order for payment by, how enforced, 146, COMMENCEMENT OF ACTION. What shall be, 241. COMMON LAW PROCEDURE ACT. Garnishee proceedings in Division Courts under, 253. Forms employed in Division Courts in i)roceedings under, 301> .302, 313. COMMISSIONS TO TAKE EVIDENCE. Power of Court to issue, 128. Application for, to be supported by affidavit, 128. Granting of order for, not imperative, 128. Application for, to be made in reasonable time, 128. Great delay no ground for refusing, 1 20. Evidence of experts not to be taken under, 129. What should be stated in application for, 129. Not necessary to state fact to be proved, 129. Not necessary to swear to merits, 129. By whom application to be made, 129. Effort to obtain witness, need not appear, 129. 'r "M, ■ [| ■-I: ■;* ■' ■■ . nfl 368 INDEX. 1 SrV'v'rfJ**'" ¥■.»■>;;*;,■.■■ ■■'/■>! COMMISSION TO TAKE EVlDK^sCE— {Continued.) That other witnesses in jiirisdictioii, no answer, 129. Need not appear that defence true, 129. How application should l>e made, 129. What to be specified in order for, 129. Form of affidavit to procure, 129. Form of order for, 130. Copy of intv-iTogatories to he annexed to, 130. How to be framed, l.SO. Due notice of, must be given, 130. When evidence taken under, not receivable, 131. What not deemed irregularities in return to, 131. Affidavit on return must identify depositions, 131. What deemed irregularities in return to, 131. Objections to, when not taken are waived, 131. What objections to, 131. Commissioners liave lien on commission for fees, 131. Not to issue to take evidence of person applying but in certain cases, I3"i Rev. Stat. c. 02, ss. 22 and 23 made applicable to, 132. To be returned to Di\'ision Court Clerk by County Court Clerk, 132. Costs of, 133. (JOMMITMENT. Warrant of, to issue to Bailiff only of County, 246. Warrants of, to be dated when ordei for, entered in Procedare Bo<ik. 201. Renewal of, 261. Bailiff to endorse thereon amount of mileage on delivery to prison, 261 . Forms of, 316. Bailiffs' return to, 333. (COMMON CARRIERS. Action against, until lately deemed tort, 55. Tendency of (Jourts now different, 55. Form of action against, for negligence, 62, COMMON FERRYMEN. Form of action against, for negligence, 62. (COMMON INNKEEPERS. Form of action against, for negligence, 62. COMPUTATION OF TIME.— iS^ee Time, Computation of. CONCURRENT SUMMONSES. When to issue, 242. CONFESSIONS OF DEBT. Clerks and Bailiffs may take, 170, Authority of partner to give, 171. Power of executor to give, 171. Affidavit required in such cases, 171. Be/ore action — Requisites of, 268. Where defendant served with special summons, makes default, and gives confession, plrintiff may elect to proceed on either, 245 After action, form of, 322. Affidavit of execution of, 324. Where several defendants, and some defend, and others make default on special summons, 244. Minute of judgment, thereon, 302. CONTEMPT OF COURT. Inherent power of Court of Record to punish for, 222, W'hat constitutes contempt, 222, 223. Mr INDEX. 369 CONTEMPT OF COURT— (Co«/(;»<«/.) Power of I^ivision Courts to puuish for, 222, Form i.r judgment imposing line for, 30G. Form of warrant of commitment for contempt in open Court, 317. Certificate for discharge of a party from custody, 318. . CONTINUANCE OF ACTION. WJiat shall be, and how, 246, 266. CONTRACT. Definition of action on, 5-4. Distinction between action on, and on tort, 54. Action of tort may be brought on l)reach of, 55. No person can be sued on, not party to, 58. When all parties to, need not be sued, 58, 59. Under $1(K) may be brought in Division Courts, 63. Concurrence of intention necessary in, 03. Particulars in cases of, 239. Form of, 287. CORPORATIONS. May sue for frauds and torts, 60. How should sue, 58. When may enforce calls for stock, 351. Service of process on, 351. COSTS. Clerk to tax, subject to Judge's revision, 32. And to make out biU theioof in detail, 258. Judge may apportion, 171. Upon claim, for say $20, 329. Upon claim, for say $60, defended, tried and judgment enteretl, 329. Paj'ment of, how enforced, 40. (CONVERSION. Sale for unpaid purchase money not a, 61. COUNSEL. County Court Judge cannot practise as, 17. COUNTY. Separation of junior from senior County, Division Court-s continue till altered by sessions, 11. COUNTY CROWN ATTORNEY. Clerks to submit accounts to, 33. Clerks to deliver a verified account of fines to, 33. To become possessed of papers on death, removal, etc. , of Clerk, 33. COURT. Coui'ts before Act continued, 3. Number of Courts in counties and cities, 3. Designation of Court, 3. Each Court to have a seal, 3. Not to be Courts of Record, 4, Judgments to have effect of, 4. Time and place of holding of, 6. Division Courts accommodation, 7. Not to be connected with hotel, 7. * If no proper Court room, Judge to hold Court in any suitable place, 3, Expenses for rent, 8. Lieutenant-Governor may regulate holding of Courts, 8. <^ieneral Sessions may alter number and limit of Divisions, 9. Resolutions and orders not to be altered till after notice, 10. 24 " ■ 1 ■"•'•^;il ■;;i '' 'S^ ■ .r'-'-i. •30f,, ¥'. 370 INDEX. fl^h'ii 'i'l:' .'.''JK •'■■■ i^tfe .'.■>. m . •ll^,'■.^'>■■■■■•■■' f-'-i!^ W :^' CimRT—(Contimie(L) Establishment by County Judge of, in townships, on petition of town ■ ship council, 1 1 . Court must be confirmed by Lieutenant-Governor in Council, II. On separation of junior from senior County, Courts to continue same till altered by Sessions, 11. On alteration of Divisions, Judge to direct in what CouH proceedings to continue, 12. Clerk and officers to deliver papers to such persons as Judge directs, Hi. After separation of junior from senior County, proceedings rn certain cases to be continued in senior County, 13. General Sessions of senior County to regulate Divisions of, after separa- tion, 14. Resolutions and orders, as to Divisions, not to to be altered till aftei' notice, 14. Clerks of Peace to record time and place for holding Courts, 15. No privilege to exempt from jurisdiction of, 7(5. Establishment of, in Territorial Districts, 350. COVENANT. Rule for determining whether joint or several, 57. When action on, lies, 55. Who may sue on, 57. Form of, by Clerk or Bailiflf, 235. CREDITOR.— -S'ee Primary Creditor. CRIMINAL CONVERSATION. Action for, not maintainable in Division Court, 53. CUSTOM. Action respecting title to, not maintainable in Division Court, 52. Meaning of, 52. DAMAGES IN REPLEVIN, 248, 249. Form of judgment awarding, 306. DAMAGE FEASANT. Rule of Court respecting distress for, 249. DANGEROUS ANIMAL. Liability of owner for, 59. Knowledge of, essential, 5S. Servant's knowledge imputed to master, 59. Slight evidence of knowledge sufficient, 60. Knowledge not necessary when dog worries sheep, 60. Remedy to be before Justice of the Peace, 60, 61. Person harbouring, liable, 61. Offer of compensation, effect of, 61. DEBT. Denied by garnishee, form of memorandum, 302, DEBT ATTACHMENT BOOK. Entries in, to commence with garnishee order, or garnishee summon.'?, 253. Form of, 282. DEBTOR. Under $100 may be sued in Division Courts, 63. See Absconding Debtor, Judgment Debtor, and Primary Debtor. ^iCRLES. To be entered in Procedure Book, by Clerk, 273, 274. Forms of, 300 to 307. mk. nr^pw INDEX. 371 DEFAULT. Some (iefendanta making, others defending, how action to proceed, '244. After minuted, defendant may be let in to defend on terms, 245 When defendant makes, and gives confession, plaintiff may elect to pro ceed on either, 245. If judgment not entered by Clerk in one month, suit not abated, 24(>. Summons to defendant after, form of, 293. DEFENDANT, Minute of judgment against defendant for debt or damages, 302. Of judgment under sec. 79, 302. Of judgment where some defendants have been served with special summon?, and othera have confessed, 302. Minute of judgment for, in Procedure Bof»k, ,303. Minute of judgment for defendant on set-off when part satisfied, 303. Minute of judgment for })alaiiee of set-off, 303. DEFENCE. J^ef endant giving notice of statutory, to l)e deemed sufficient notice of disputing plaintiff's claim, 243. By attaching creditors allowed, 247. Sen — Statutory Defence. See — Special Summons. DEPUTY JUDGE. Can reserve decision, 19. Death of Judge ends authority, 19. Appointment and powers of, 16. DESCRIPTION. Of parties, etc. , in claim, etc. , 239. DETINUE. When action on, lies, 55. DEVASTAVIT. Suggestion of, 253. ^ Form of, 295. Summonses suggesting, forms of, 295. Judgment against executor or administrator, 303, 305. DEVISE. Action respecting, not maintainable in Division Court, 52. DISBURSEMENTS. Affidavit of, 327. See Witnesses. DISCHARGE OF PARTY FROM CUSTODY. Certificate of, 318. DISCONTINUANCE. What shall be deemed, 270. DISMISSAL. Minute of judgment in Procedure Book, form of, 303. DISPUTING. Plaintiff's claim, what shall be notice of, in certain cases, 243. Plaintiff's claim in part. Clerk to notify plaintiff, 243. All defendants served and some only defend, 243. DISTRESS. Landlord's, when a trespass, 61. Defect in proceedings on, not to make persons trespassers, 229. Persons making, not to be trespassers ab initio, 229. For rent, Rule respecting, 248. •,:. '.IB fr its. ■■) ■ .»< ; INDEX. ■??• DISTRESS FOR DAMAGE FEASANT. .iftr<4'f'i^ <;. ^<^«.<ViK™l?#^''l"v. ^/v DOCUMENT!" Inspection of, by either p.arty, 269. Forms prescribed, only to be used, 273. DOMICILE. ^Vhat deemed to be, of railway company, 86. Wliere coriujrations "dwell," 86. Difference between person's residence and place of business, 87- Of husband that of wife, 87. Meaning of "carrying on business," 87. Temporary lodging not, 87. Where manufacturing company "dwells," 88. "Where joint stock company "dwells," 88. EJECTMENT. Actions for, not maintainable in Division Courts, 50. ELOIGNMENT IN REPLEVIN OF GOODS, Etc. Bailiff to make return thereof, 250. Writ in Withernam to issue, 250. EMOLUMENTS OF CLERK. Return of, form of, 330. EVIDENCE. The Evidence Act, 346. Witnesses not to be incapacitated by crime or interest, 346- Evidence of parties to suit receivable, 346. Also of husband and wife of parties interested, 347. But not if tending to criminate, 347. Communications made during marriage privileged, 347. Parties entitled to give evidence on own behalf in certain cases, 347. Suits against representatives of deceased person, f.vidence must \x corroborated, 347. Also against lunatics, etc., 348. Corroboration in material particular, what is, 348. Rules governing production o', 349. See Witnesses. EXCESS. « . / Abandonment of, how to be done, 81, 240. . gl V (jo EXECUTION. Purchaser under, only gets debtor's title, 61. Not to be postponed for more than 50 days, 1 39. What deemed sufficient cause for staying, 140. Practice in staying, 140. To issue when monej' not paid pursuant to order, 172. Effect of endorsement of writ, for more than due, 173. Different meanings of, 173. Not to be issued by Clerk, without order from party, 173. How Bailiff should act upon, 173. Seizure to be made or., ticjording to priority, 174. What does not amount to seizure under, 174. . What is actual seizure under, 174. Fixtures in defendant's house cannot be sold under, 174. Trade fixtures saleable under, 174. Can be issued immediately, unless otherwise ordered, 174, ~" Issue of, after plaintiff's death, 174. Binds goods from time of seizure, 174. How priority of, and of Ji. fas. regiilated, 174. fv^.. 'hL(U kWict. ltd Cr cLto ]iLo.^,^ ^i\c^f Ui Vi INDEX. 373 EXECUTION— (CV;H^"H»r(Z.) Equity of rodomptiou in vessel, not saleable under, 17'). How mortgagee's goods may be sold under, 17i). Against j)artuers, what saleable under, 175. Money seized for defendant eannot be retained to satisfy, 175. When goods deemed defendant's, so aa to bo saleable under, 175. What deemed irregularities in, 175. Effect of sale after ex])iry of, 175. Effect of sale by Bail'tf under, after removal from office, 175. No warranty of title at Bailiff's sale, 1 75. Growing fruit cannot be seized under, 170. Ahtimlonmevt lutd priuril;/ of execution — Effect of sale by debtor after abandonment by Sheriff, 17(5. Chattel lent by Sheriff not deemed abandoned, 170. What deemed aband<uinient Ijy Sheriff' and what not, 17(3, 177. Long delay not abandoinnent, 170. Taking execution to (Jlei'k tor renewal not abandonment, 170. When Bailiff notified not to execute, effect, 17(». Term of years cannot be Bold under, 177. See ExEMi'TiON.s. Settimj aHide — When execution may and may not be set aside, 178. Insue of — Clerk may be compelled by mandamus to issue, 17!). W^here to be executed, 179. If party removes to another county, execution obtainable in such county, 180. When sale under, to be superseded, ISO. When dated and returnable, 182. Judge may order to issue before regidar day, 182. Interest of mortgagor in goods mortgaged saleal)le under, 185. What may be seized under, against goods and chattels, 180. Bailiff to hold cheques, notes, etc., seiz^ under execution for benefit ot plaintiff, 187. Defendant in original cause not to discharge suit, 187. The i)arty wishing to enforce, must secure costs, 188. Overplus, 188. Bailiff, after seizure of goods, to endorse date of seizure and give notice of sale, 188. Goods not to be sold under, till eight days after seizure, 188, 189. Bailiff and other officers not to purchase goods seized, 189. Keuewal of, 275. See Transcript. Foi'ms of, ordinary. Against goods of defendant, 307. Against goods of plaintiff, 308. Against goods of plaintiff for balance of set-off, 308. Under sec. 03, where judgment obtained against a defendant residing in a foreign county, 308, 309. On transcript of judgment from one Court to another, 309. For an executor on a judgment revived in his favour, 309. On judgment revived against executor or administrator, 310. Against goods of testator, 310. In replevin against plaintiff when return of goods adjudged with damages and costs, 311. '* Against garnishees on judgment already recovered, 312. Against garnishee on judgment recovered against him and primary debtor, 3K. .•■■ [| ^4 1 A:j'v-.; ,'7 ifti |■-wi^:v• ,,^V• ♦i. ■V^- •v,i,. • , |'f;>V^i'» :.'■■■■ .!; l-t-.'i:' "■v', 'J.V ,'■ •i~:'f.'- p]£i< .. '-ii.'- '■ ;i74 INDEX. / KXECUTION— (^on<;«iw/.) Against primary debtor and garnishee, 312. Fcir garnishee's costs, 313. Under sections 312, 316, Ilev. Stat. c. 50, 313. Against goods of claimant imdor interpleader, 314. Under the Act resiiecting line fences and ditching watti- courses, 316. EXECUTORS AND ADMINISTRATORS. \ /^i^n-M Must all join as plaintiffs, 58. > '^^/ O ■ ■ -■ Renouncing execut(»r need not l>e joined, 58. When liable as representatives and when personally, 59. All administrators should })e joined as defendants, 59. Must revive judgment before, can garnish, 150. Gtneral rules rei/xicthuj — ' Suggestion in summons of devastavit, 253. Judgment upon devastavit, 253. Judgment when defendant denies representative character, etc., 254. Judgment when demand denied, 254. Judgment u^jon plea of plene administravit proved, 254. Judgment on plea of plene a<lministravit not proved, demaiui denied, 254. Judgment of assets quando acciderint, 254. Judgment on plea of plene administravit not proved, demaiu/ denied, 255. Proceedings ujotu judgment alleging assets accrued, 255. When liability of, admitted, money to be paid into C!ourt, 255. Judgment as to costs of disproving defence in unprovided cases, 255. Judgment against, and for costs in actions by them, etc., 256. Forma — Summons on behalf of, to revive a judgment, 294. Summons on a devastavit, 295. Suggestion of devastavit, on original summons, 295. Summons to revive judgment against, 295. Summons to, when plaintiff intends to apply to the Court. alleging that assets have come to the defendant's hands sinci judgment, 296. Of ordinary judgment against executor or administrator. 303. Of judgment against executor or adminstrator, who has wasted assets, 303. Judgment where defendant denies his representative character, 304. Judgment when representative character admitted and demand denied, .304. Judgment when defendant admits his representative character but denies demand, and alleges total or partial administration of assets, and plaintiff proves demand, and defendant proves administration, 304. The same where defendant does not prove administration, .304, Judgment when defendant admits representative character and the plaintiff's demand, but alleges a total or partial atlminis- tration of assets, and proves administration, 305. The same where he does not prove administration, 305. Judgment against, on devastavit after judgment, 305. Judgment to revive a judgment against an executor, 305» Judgment for executor to revive a judgment, 305. INDEX. 375 EXECUTORS AND ADMINLSTRATOKS-fCoH/.HWfi.) Execution for, on juilguiont revival in favour of, .S09. Execution on judgment revived against, 310. Execution against goods of testator in hands of, 310. EXECUTOR DE SON TORT. How to be joined in action, 59. EXEMPTIONS. What articles are exempt from seizure, 177, 178. Exemption Act does not bind Crown, 178. Applies to absconding debtor, 178. EXPERTS. Evidence of, not to be taken \indur commission, 129. FALSE IMPRISONxMENT. Action for, not prohibited in Division Court, 51. Question of title arising in action for, effect of, 51. FEES. Clerk and Bailiff, payable by, 39. Of jurors, 39. Of appraisers, 39. Table of, to be hung up in Clerk's office, 39. To be paid by plaintiff or defendant, in lirst instance, 39. How enforced if not paid, 40. Summons to shew cause against execution for, form of, 40. Order for issue of execution for, form of, 41. Bailiff's fees to be paid to Clerk before execution issues, 41. To forfeit fees if he neglects to retur^i writ, 41. Such fees to go to Con. Rev. Fund, 42. Tariff for officers, 277. Forms of. Clerk's, 336, Bailiff's, 337. To witnesses to be taxed by Clerk, 273. Scale of, to witnesses, 273. Schedule of, to witnesses, 279. Affidavit of disbursements, 327. To jurors allowed by Act, 279. To appraisers, 279. FELONY. Person convicted of, cannot sue till pardoned, 54. When wrong amounts to, no action till offender prosecuted, 56. FINES. How enforced by Division Courts, 226. How enforced by Justices of Peace, 227. Form of conviction, 227. How disposed of, 231. Forms of — On jurors for non-attendance, 306. For contempt of Court, 307. On witness, 307. FIRES. Liability of persons putting out, 61. FIRM. How it should sue, 58. Members of, may be sued jointlj' for wrongs committed by, 60. What goods saleable under execution against, 175. FORBEARANCE TO SUE. Action on promise for, 65. i|. I ^iM '•rj li.^t- :.vt-t^ •^7e> INDEX. KOREiriN COUNT V. Form of execution uiuier section 03, 308. JuilgniuntH, I'roceilure Book to bu uhimI in ontorint,' transcripts of, i'^tl roltb'Ell URK OF OFFICE BY CLKUKS OK BAILIFFS. Acts causing, 22'), '2()0. FORMS. In garnislioo procewlings 8ul)joine»l to Rules to bo ia liou of those m schedule to Act of 186!), 2M. Prescribed to be used and no others, 273. For Forma used in various proceedings under Act, see different headings FRANCHISE. No action involving title to, in Division Courts, 52. FURTHER PARTICULARS. Judge may adjourn for, 239. « J AMBLING. Doubtful whether fraud under Insolvent Act, 40. Money lent for purpose of, not recoverable, 49. UAMBLING DEBT. Division Court has no jurisdiction in actions for, 48. Definition of, 48. What has been held to constitute, 49. Distinction between debt under lottery and, 49. Money lent to pay, recoverable back, 49. No action for, note of hand for, in Division Court, 49. Court no jurisdiction in actions on note of hand for, 20"). GARNISHEE PROCEEDINGS. Question of title to land arising in, no ground for prohibition, 4.5. Against railway companies elsewhere than at head otiice prohibited, 4.>. To garnish debts, 147. What actions not subject of, 147. Claim of primary debtor must be due and owing, 148. Test of debt iKiing garnishable, 148. Vonlict in action for unlicjuidated damages before judgment not subject of, 148. What not a "debt," garnishable, 148, 149. Judgment creditor cannot attach debt due wife, 149. Judgment against executor, what debts attachable, 149. Effect of order in, where debt assigned, 149. Unsettled balance between parties not lia1)Ie to, 149. Nor moneys payable under indemnity bond, 149. Surplus moneys in mortgagee's haiids after sale not gsirnishable, 149. Override Attorney's lien, 149. Money in haiids of corporation liable to, 150. Rent not due not liable to, 150. When salary of municipal officer liable to, 150. Creditor cannot obtain charge on equitable debt, 150. Surplus money in hands of assignee not subject to, 150. Person obtaining costs in interpleader issue not entitled to take, 150. Garnishee cannot retain money due from primary creditor, 150. When cross claim between garnishee and judgment debtor, 150. Effect of order in, on insolvency, 150. When garnishee protected from, 150. Debts due corporation attachable, 150. Part of debt subject to, 150. Money in hands of Government not subject to, 150. When mutual debts between debtor and garnishee, 150, INDF.X. 377 (iAHMSIfKE PnoCEKDINTJS- (t'.>///';«'/.'/.) Wlu'M money in hiuuls of ]trinmry iroditor ami aiiothei', I.IO. (larnislico may satisfy lii-n i)uforo liu pays over, laO. Kxocutor must rovivo jiiilwiUL'nt liofore ho oaii takti, \'yO. Ktl'iH't of ilced of com))<isitioit, titc, after (irdcr in, l")!). I'ayniont into Court liy ^'arnisliui', tlist'liaryf, l.")l. I'^inds with otiicial liijuiilatoi' not lial>le to, 1')!. |)t.'l)t assigncMl not garniwlialile, 151. W'liat nucoasary to nial<i uisigiUMont prevail, IT)!. When order to pay ojjeic il, I'd. No itowen to enter .sugi^e«tion of death f)f gamislioe, 1.")!. Doht due to judgment dolttor as exeeutor not garnishaldo, li>l. Money with agent of foreign prineipal garnishahle, ir>l. Money witli iJivision Court Bailill' attaehable, 151, Not to be set aside r "tor great delay, 151. When several orders, how creditors rank, 151. Elleet of order on jjarty's right of set-oil', 151. How garnishee discharged, 151. (Jarnishee need not [tay till credit expired, 151. Ditlieulty of, on hill of exchange, etc., 151. Money paid into Court not liable to, 151. Nor money with receiver, 151. Debts due mechanics, etc., for wages, not attachable, 152. Unless exceeds .^'2.5, 1.52. Saving clause as to debt before first October, '74, 152. When the creditor's claim a judgment, attaching order to be granted on judgment, 152. Service tiiereof to bind all debts, etc., 153. (tarnishee may pay in his own discharge, 15.S. Payment to any but primary creditor void, 153. Primary creditor may sunmion garnishee, etc., 154. How to Ixi served, etc., 154. Judgment at hearing, 155. Where thi' primarii creditor's claim not a juthjinent. Where no judgment summons on garnishee, etc., to issue, 15(>. Service thereof, 150. Judgment in such case, 157. General prorixii)n>i. All parties interested may shew cause, etc., 157. Notice of statutory defence, 158. Service of summons on garnishee to bind debt till hearing, KiO. And after judgment, IGl. Costs, 161. Summons and memorandum of particulars to be filed, 161. No execution till garnishee's debt <lue, 101. Application to discharge debt from attachment, 162. Security from primary creditor, 162. Oases of adverse claims, 163. Judge may postpone or adjourn proceedings, 164. Debt attachment book, 164. Bubn respecting. Affidavit for attachment, what to contain, 251. Warning to be endorsed on order, etc., 251. When and how summons to be served, 251. Primary debtor to be served, 251. Judge may order substitutional service, 252. Judgment by default on non-appearance, 252. Transcript of judgment to be filed in certain cases, 252. J 3(8 INDEX. MM 1.^ _ 'V.ist, i^x^;:--'' GARNISHEE PROCEEDINGS— (CoH<J«mZ.) Payment before judgment to be upon order, 252. Application under section 142, and proceedings, 252. Bond from primary creditor, what required in, 253. Garnishee liable for costs in certain cases, 253. As to entries in Debt Attachment Book, etc. , 253. Proceedings against garnishee under C. L. P. Act, 253. Forms. Affidavit for order to garnish debt, 298. Judge's attaching order, 299, Warning to garnishee, 299. Summons to garnishee and primary debtor after judgment, 299. Summons to primary debtor (before judgment) and garnishee, 30(». Minute in Procedure Book of judgment against garnishee ini judgment already recovered, 300. Minute in Procedure Book of judgment against primary debtor and against garnishee, 300. Minute of judgment in favour of garnishee, 301. Bond under sec. 143, 301. Clerk's memorandum cf non-appearance of garnishee (Rev. Stat. cap. 50, sec. 316), .'-Ol. Memorandum of admission of debt, signed by garnishee (Rev. Stat. cap. 50, sec. 316), 301. Memorandum when garnishee denies debt, under Rev. Stat. cap. 50, sec. 316, 302. Forms of Execution in — Against gai'iiishee on judgment already recovered, 312. Against garnishee on judgment recovered against him and primary debtor, 312. Against primary debtor and garnishee, 312. For garnishee's costs, 313. Execution under Rev. Stat. cap. 50, sees. 312 to 316. fJENERAL RULES AND ORDERS. Board of Judges to frame rules, 232 Lieutenant-Governor may appoint five County Judges to frame rulcS; etc., 233. Retired Judge may be appointed, 233. Respecting Clerks i.nd Bailiffs, 233. Amendment of rules, 233. Board to certify rules to Chief Justice Q. B., to be laid before Judges, 233. Such rules to be approved of by the Judges, .233. To have force of a statute, 234. Judges to transmit copies to Lieutenant-Governor, 234. Expenses of, provided for, 234. Practice of Superior Courts followed in unprovided cases, 234. "^ime of coming into operation, 237. ; aterpretation of, 237, 238. CiENERAL SESSIONS. Justices in, may alter number and limit of Divisions, 9. Redclutions and orders as to Divisions not to be altered till after ziotice, 10. On separation of junior from senior County, Courts to continue same till altered by, 11. General Sessions of senior County to regulate divisions after separa- tion. 13. Kesolutions and orders as to divisions not to be altered without notice, 14- \ INDEX. 37{> GOODS BAEGAINED AND SOLD, What seller umst prove in action for, 63. What buyer must prove in action for, 64. (iOODS SOLD AND DELIVERED. What necessary to prove in action for, 63. (JUAEANTEE. Definition of, 66. Actions on, 66. HEARING. In cas^a of attachment, not to he less than one month after attachment, unless service of summons personal, 246. Fee to be charged on adjournment when opposed, 270. HEREDITAMENT. Action for, not maintainable in Division Court, 50. Definition of, 50. HIRE OF GOODS. Action for, 66. HUSBAND AND WIFE. Claims by, may be joined, 265. May give evidence for or against each other, 347. ILLITERATE PERSON. Jurat to affidavit by, 326. INDEMNITIES. Actions on, 66. INFANT. Liability of, for torts, 54. Only liable for necessaries, 59. What deemed necessaries, 59. Father not liable for necessaries supplied to, 59. Contracts made by, may be ratified without consideration, 59. Not liable on torts arising out of contracts, 60. May sue for wages in Division Court, 76. In other suits next friend necessary, 76. Doubtful whether parent of, liable to, for wages, 76. Wages of, belong to, 76. To sue by next friend, 266. Next friend of, form of, undertaking by, 283. INSOLVENT. Debts due to, before insolvency go to assignee, 59. May sue for i^ersonal wrong, 59. INSPECTON OF DOCUMENTS. How parties to be entitled to, 269, 270. INTEREST. Action for, 64, Proper mode of computing, 135. On execution when part lias been made on it, 135. When by statute allowed, 136. On bill of exchange, etc., 136, 137. Need not be claimed when recoverable under statute, 136. When allowed by law, 136. When no stipulation as to rate after particular day, 136. When ref"^verable from drawer of liill, 137. On depns . on consideration which has failed, 137. Promise to pay implied from acts of parties, 137. i\. - li ir.i. ' !| Kit ii . ■: «. '.• ' , . . I. j; ■'■<.'',■ J \ !uf V ,f bi, ; 380 INDEX. ]'STFAlEf^T-{Cnnrmuc(l.) Wlieu compound interest allowed, 137. On calls on forfeited shares, 137. On l)arred debts revived, 1.S7. When surety entitled to, 137. (leases on claim at judgment, 138. When demand for, sufficient, 138. Oeneral payments to be a^jplied first for, 138. INTEIIPLEADEII. Question of title arising in, does not affect jurisdiction, 51. Claims of landlords and others to goods seized in execution, 214. What claim must be, 214. Action need not be commenced before proceeding in, 214. When Bailiff' cannot interplead, 214. Crown cannot be claimant in, 214. When BailitF should apply in, 214. Claims under bills of sale and chattel mortgages, 214. How claims to be adjusted, 215. p]ffect of proceedings in, 215. Bailiff's application for interplea<ler summons, form of, 215. What issue is to be tried in proceedings in, 216. When actions in Superior Courts respecting the subject matter may i)e stayed, 21(i. Costs, 216. ( 'ounty Judge to adjudicate upon the claim in, 217. Proceedings in, 247. Form of application of BailitF on interpleader, 288. Particulars of claim, 247. Form of, 289. May be tried by consent, 247. Adjudication in, 247. Summons, 247. Form of summons to claimant, 291. Sunnnons to plaintiff on interpleader, 292. Form of adjudication in, 306. (Uaimant may be relieved on terras if rule as to particulars not complied with, 248. When claim dismissed. Bailiff to get his costs out of amount levied, 248. Landlord's claim for rent, 247. Form of, 289. Summons, how and when to be served, 247. Form of interpleader summons to claimant, 291. Sunnnons to plaintiff on interpleader, 292. Moneys in dispute in hands of Clerk to be held till adjudication, 248. Form of execution against goods of claimant, 314. interprj:tation. Absence of Judge, meaning of, 18. Act, meaning of, 2.38. Adjacent, meaning of, 89. Administrator, what word shall express, 238. Agent, meaning of, 213. At least, construction of, 92. Available to, meaning of, 25. Bailiff, who is, 37. Carries on business, meaning of, 87. Casualty, meaning of, "0. Chuae iu action, definition of, 5G. INDEX. 381 INTERPRETATION— (CoH^iHHwZ.) Claim, meaning of, 238. Clerk, what word shall include, 238. Contract, action on, delinition of, 54. Contribution, meaning of, 98. Coparcenary, meaning of, 213. (Jounty, meaning of, 3. What it shall include, 238. Custom, meaning of, 52. Damages, what are, 25. Defendant and plaintiff, words to be transposed if necessary, 238. Disturbance, meaning of, 38. Domicile, meaning of, 19. Execution, meaning of, 173. Execiitor, what it shall include, 238. Foreign Court, meaning of, 238. Foreign Division, meaning of, 238. Forthwith, meaning of, 15. Franchise, meaning of, 52. Freeholder, meaning of, 23. Gambling debt, definition of, 48. General rules and orders, interpretation of, 237, 238. Guarantee, definition of, G(j. Hereditaments, definition of, 50. Holiday, what it includes, 20. Home district, meaning of, 228. Home division, meaning of, 238. Immediate, meaning of, 15. Immediately, meaning of, ]()3. Immediate reversion, meaning of, 213. Insolvent, meaning of, 27. Joint tenancy, meaning of, 213. •ludge, what word shall include, 238. Ijandlord, meaning of, 213. Levying, meaning of, 173. Lien, meaning of, (51. Mandamus, what it is, 48. Masculine gender, word in certain cases understood as female, 23K Parol contracts, what are, 63. Party, meaning of, 238. Person, meaning of, 238. What it shall include, 238. Plaintiff an<l defendant, the words to be transposed if necessary, 238. Proceeding, what held to be, 39. Process, meaning of, 238. Residence, meaning of, 19. Resident, meaning of, 23. Resides, moaning of, 23. Riot, definition of, 38. Security, meaning of, 22. y Set-off, signification of, 117. Singular number, word in, in certain cases read as if in plural, 238. Specialty contracts, what are, 63. Square, meaning of, 38. Sureties, meaning of, 22. Sworn, meaning of, 238. Tenancy in common, meaning of, 213. Teuement, meauiug of, 218. 1 1( ■■ it^ m 382 INDEX. I \ IS . *^' i ■i■^^ ■',*'■' ■■ •■■/».••>;■>',< *,Vv^\ I. ,1 >.■■■ ■-»'■■ ,;■ '■ ,^^ '''<■• INTKRPR ETATION— (Co««i»Med ) Toll, iletinition of, 52. Tort, action on, detinitiou, 54. United c(junties, these avokU inserted when necessary 238. Warranty, definition of, OG. INVENTORY OF OOODS. A^jpraiseinent to be endorsed on, 333. Seized on replevin, form of, 332. IRREGULARITY. Judge may refuse to set aside, 272. ,JEW. Form of oath administered to, when a witness, 325. JUDGE. County Court Judge to preside, 15. Junior Judge to hold Division Courts, 16. Not liable to action for trespass for erroneous judgment, 16. \\ hen tresijass lies against, 16. Liability of, for allowing Clerk to act without security, 16. Notice of action to be given to, 16. Want of jurisdiction to be shewn before Judge to make him liable, iti. Liable for act beyond limit of authority, 17. Functions of, not to be delegated, 17. Signature of, may be by stamp, 17. Words spoken l)y, in cause not actiona1)le, 17. No action against, for judicial act done corruptly, 17. Cannot try cause in which interested, ) 7. When attachment lies against, for disobeying certiorari, 17. Cannot be arrested im mesne or final process, 17. Lial)ility of, to produce deed, 17. Cannot practise as counsel, attorney, etc., 17. When change of venue ordpred in ejectment against, 17. Eft'ec^ of death of, in cases pending, 18. Senior Judge to hold Division Courts when expedient, 18. Who to preside in case of illness or absence of Judge, 18. Lieutenant-Governor to be notified of appointment of Deputy, 19. Appointment, how long to continue, 19. Clerks or Deputy Clerks may adjourn Court if Judge does not arrive m time, 20. ( "lerks and Bailiffs to be appointed and removed by, 22. Mav be compelled by mandamus to do so, 22. Clerks to furnish, with verified account of moneys paid in and out of I 'ourt, 33. Clerks to furnish, with semi-annual accounts of fees and emoluments, 34 May order payment in money although contract not for payment in, 69 May sue, or be sued in adjoining County, 90. May issue order for commission, 128. May receive in eviiio"''e plaintili' 's and defendant's books of account, 133 Affidavits may l)e sworn before, 134. May give judgment instanter, or postpone judgment, 134. Cannot alter his decision at will, 134. When decision of, becomes judgment of Court, 135. May direct times and proportions in which judgment to be paid, 138 May grant new trial, 138. May nonsuit in jury case, 142. May fine collector for default of duty, 145. May set aside award, 170. Power of, to apportion costs, 171. INDEX. 383 JU [KrMEXT. Truth of, of Courts of Reconl not to be questioned, 4. Effect of, as between parties to, 4. When not evidence ])etween parties to, 5. Effect of, as against a stranger, o. Must he pleaded between parties in Superior viurts, 5. Effect of, in Division Courts, 5, 6. When decision of Judge becomes a, 12. Of Division Court to be full discharge, 81. Must be l>etween same parties and pri\ its, SI. What is meant by, 172. Acts as estoppel, 172. 01>tained by covin and collusion no bar, 172. Lapse of time no bar to application to set asine, 173. Of Division Court cannot be sued on in Superior or County Court, !7S Discharge of, 1)y insolvency proceedings, 173. Effect of deed of composition on, 173. Cross-judgments may be set-off, 179. Clerk of any Court in which judgment entered to prepare transcript to transmit to other Division Court, 180. Revival of, in case of death of party to, 181. Provision for, on special summons against defendants, on default, 'J+o Provision for, on special summons, when some defend and ()thor.-s do not, 244. Provision for, on special summons, 8er\5ed at different periods, 244. Provision for, (jn special suunuona, some defendauta in default, somi! flefending, 245. Provision tor, relief of such defendant in default, 245. Wlien confession after default plaintiff' may elect for, 245. If entry of delayed, suit not to abate, 24G. Entry and form of, on special summons, 24G. Carnishee proceedings by default on non-apijearancc, 252. Transcript of, to be filed in certain cas'es, 252. Payment before, provided for, 252. Against executors and administrators upon devastavit, 253. \\ hen defendant denies representative character, 254. Wlien demand denied, 254. On plea of plene aiiministravit proved, 254. On plea of plene administravit not proved, demand denied, 254, 255 Of assets quando acciderint, 254. Where defendant admits representative character, but alleges total <ir partial administration, 255. As to costs of disproving defence in unprovided cases, 255. Entry of, and when and M'here payable, 273, 274. Entry of, on award, 274. Where one of several joint contractors sued, right of defence, 274 Entry of, for balance of set-off, 274. In garnishee proceedings — Summons to garnishee before and after judgment, 299, 30(). Minute of, in Procedure Book, against garnishee on judgment recovered, 300. Minute of, in Procedure Book, against primary debtor and garnishee, 300. Minute of, in Procedure Book, in favour of garnishee, 301. In other cases — Against defendant for debt or dan. ages, 302. Unde;- sec. 79, 302. rt'. it ill- ill:': (» it ■ ii ' 384 INDEX. i:^: I vli^ ■> ' '■■■ ■■■■ iiii::c •'■■'■, :■' ' |H!r :■',■■. ■S-jri-''': iV. : wd ■ fir ''■"'■' .HJ hG^E^T— {Continued). Where some defendants have been served with special summons and others have confessed, 302. Against executor or administrator, minute of, in Procedure hook, 303, 304, 305. See Procedure Book, ant> Executor and Administrator. Minute of, executor to revive a judgment, 305. In rejdevin, 300. Interpleader, minute in Procedure Book, 306. Juror, fine on, ,306. (Jontempt, fine for, ,306. Witness, tine on, ,307. Against defen;iant for debt and damages, ,302. On special sunmions, 302. » ^Vhere some defendants served and others have confessed, minutes of, 302. Nonsuit, minute of, .303. Dismissal, minute of, 303. ( )n award, 303. !>efenilant, ior, 303. On sct-o.' Affid.-.it ''^,1 of, 828. .TUIXIMENT .. ( .. Plaintiff's application for summons against, 240. Vc'm of, 292. Form of .svimu '^s to • ir and be examined, 293. Service ol suiiin. -iis on 'Jn?, -"iS. Form of summons in default of payment as ordered, 293. J U mm EN T S IJM MONS. Judgment delitors may be examined at the instance of their creditors, 189. Other witnesses may be examined, 191. The examination to be in Judge's chambers, 191. The costs provided for, 191. I'arty examined and discharged not to be again summoned, 192. Conse((uence of neglect to attend under, 192. Upon what grounds debtor may be committed under, 192, 193. In what cases <mly party may be committed for non-attendance on, 194. Costs allowed party summoned in certain cases, 194. Commitment in case of refusal, 195. Bailiff to execute warrant of arrest under, 195. Duty of, in executing, 195. Constables to execute warrants, 196. When debtor in custodj' under, should be discharged, 197. Judge may make order and alter and modify same, 197. When parties may be examined under, 197. Party committed under, not to be discharged for insolvency, 198. Debt not to be extinguished by commitment under, 198. When issued, 240. Claim and particulars in proceedings on, 240. How to be served, 257, 258. Not to issue, without leave of Judge, on judgment more than six years old, unless some payment made within twelve months, 275. Forma — Form of application for, 292. Form of. 292. P'orm of summons on default of plaintiff to comply with, 293 Warrant of commitment in default of appearance, 316. INDEX. 385 ummons re hook, minutes ;ors. 189. on, 194. 8. IX years 293, .JUDGMENT SUMMONS-((7oH<uiM«/.) Warrant of commitment after examination on, 316. Certiticate for discharge of a jjarty from custody, 318. JUNIOR COUNTY. On separation of, from senior, Division Coui-ts continue till altered by Sessions, 11. JUNIOR JUDGE. Appointment and removal of, 16. ^ To hold Division Courts, 10. JURAT. To affidavit by illiterate deponent, 326. JURISDICTION. Judge liable who exceeds, 42, No presumption in favour of inferior, 42. None against, 42. Circumstances to give, must appear on face of proceedings, 42. Division Court assuming, remeily, proliibition, 42. Court refusing to entertain case witliin, remedy, mandamus, 42. Total want of, not M'aived by consent of parties, 44, In gambling debt, etc, rule as to, 2G5. See Ckrtiokaki, Mandamus and Prohibition. JURORS. Sunmions tf», form of, 297. Form of judgment, imposing fine on, for non-attendance, 306. Form of oath Inj — When called by parties, 325 (,7). When called by Judge, 325 (/t). JURORS' FEES. Allowed by Act, table of, 39, 279. JURY. When a jury may be had, 141. No right to, in interpleader issue, 141. Parties to give notice to the Clerk when they require, 141. Judge has a power of nonsuit in •riry cases, 142, 265. Who may be jurors, 142. Jurors, how selected and summoned, 142, Collector to furnish Clerk with list of jurors, 143. Jurors to be summoned for each Court, 143. Parties entitled to challenge, 144. What deemed grounds of challenge, 144. Penalty on jurors disobeying summons, 144. Service as juror at Division Court not to exempt from serving at Superior Courts, 146. Proceedings against Collector for neglecting to furnish Clerk with list of jurors, 145. Judge may fine collector for breach of duty, 145. Judge's order for payment by collector, how enforced, 146. Judge's list and jury list, 146. Five jurors to be empannelled, etc., 146. V^erdict to be unanimous, 146. Judge may order jury to be empannelled to try any disputed fact, 146, Judge may discharge jury not agreeing, 147. Judge may order new trial to be had before a jury, 272, Form of oath when called by parties, 325 (.7). Form of oath when called by Judge, 325 (/t), 2& !■ ■ fi ''J ! 'M ;'■■ •• : ii (wr, INDEX. Iff , ;.J* vS-'i ' 1-,' 10': M' •iriiV CASES. •liidgc niiiy nonsuit ])leiintiff in, 142, 205. Jndgu luiiy t)rder Hccoud trial l)et'orc jury, 272. I'arty rucjuiring jury in Krst instanco to he cntitlcil to jury oji avcnuA trial, 272. •J I STICKS OF PEACE. In Oeneral Sessions, may alter number and limit of divisions. 0. Action not maintainable againsh, ju the Division Court, if objects, rt'.i Wliuu may issue attachment against absconding debtor, 2U'.\. Clerk's notice that notice of action not given to, 321 (13). JUSTIFICATION. Form of affidavit of, 320. I<AXD. Action in which right to, in question not maintaiuablt.' in iJisisioi-. Courts, 50. LANDLORD. Meaning of, 213. Meaning of ageiii, 213. Claims of, in respect to goods seized, 214. Proceeding? by, interpleader, 214, 215. Claims of, how to be adjusted, 215. When Sup. Court actions may be stayed, 210. Cost-*, 210. County .hulge to adjudicate upon the claim, 217. Provisions in respect to rents due landlords, 217. Statute of Anne not ai)plicable in Division Courts to, 218- Notice to be given by, to Bailiff, 218. Tenancy must be existing, 218. Can only claim rent dui' at seizure, 218. Question of right of priority of, to execution, 218, 21!). What notice to Bailiff shouhl contain, 219. How the Bailiff is to proceed, 220. Fees of Bailiff' in snch cases, 220. If replevin made, proceedings, 220, 221. When claim of, for rent is to be first paid, 221. Claim for rent in interpleader, Rule as to, 247. Claim of, for rent under section 211. Form of, 289. LANDLORD AND TENANT. Actions between, GO. LWAVE TO ISSUE PROCESS UNDER 64th SECTION, 242. See AdJacient Division. LIBEL. Action for, not maintainable in Division Court, 53. LIEN. Meaning of, 61. Person claiming goods as own terminates, 61. What does not constitute waiver of, 01. tSale of goods puts an entl to, 01. Commissioner to have, on commission for fees, 13L LIEUTENANT-C40VERN0R, May in certain cases regulate holding of Courts, 8. Court established in Township to be confirmed by, 1 1 . To be notified of appointment of deputy by Judge, 19. To appoint Board of County Judges, 233, INDEX. :iS7 LIMITATION. Tiider will, action on, not maintainable, 52. LIMITATION OF ACTION. For things dono under this Act, '2.'}0. LIMITATION, STATUTES OF. -.SVr Statute of Limitations. LINK FENCKS AND WATl':il-COUI!SES. Form of execution under the Act respecting, 315. Award made under Act respecting, 351 . LI(^UIl)ATEl) DAMAGES, zVction to recover, 66. LIQrORS. Court n(t jurisdiction for tippling debts, 49, 265. Sec SriKITl'Ol'S liKiUOKS. MALICIOUS ARPvEST. Action for, (13. .M ALICIOUS PROSECUTION. Action for, not maintainable in Division Court, 53. If particulars of claim for, shew false imprisonment, action maintain- able, 53. What has been held to be malicious prosecution, 53. MALT LIQUORS.— -S>(' Spikituous Liquor.s. .MANDAMUS. T\) compel Judge to appoint Bailiff and Clerk, , 22. Definition of, 48. Princijjles on which granted, 48. Summary mode to compel County Judge to act in England instead ^ of, 48. Not to issue to compel Judge to rehear case, 48. Writ only goes where County Judge's jurisdiction clear, 48. Not issued to correct judgment, 48. Nor to reverse judgment on point of practice, 48. Nor to compel Judge to try case in which interested, 48. When issued against Division Court Clerks, 48. Affidavits in applications for, how entitled, 48. Application for, to be made to Judge in Chambers, 48. MARKET OVERT. Purchaser at, in England, acquires title, 61. Not .so in Ontario, 61. MARRIED WOMAN. Could not be sued on contract during coverture at Common Law, 54. Law in this Province respecting, 54. Si'i: Husband and Wife. MASTER AND SERVANT. Cannot sue one another for injury, 59, Liab'ditif — Of master, when liable for wrong lione by servant, 00. Employer of contractor not liable for contractor's servants, 60. Contractee liable when interfering with contractor's servants, 60, Master not liable for mistake in law of servant, CO. When servant liable, 60. Minor may sue for wages, 76. May sue within six years after majority. 76. Ordinary right of servant to wages, 76, 77. ■■l\ ii i ;'.8S INDKX. ^'-^^ ii^l'' MASTER AND SERVANT— (Co«/«»Hrr/.) What (U'.c!iiiu(l yearly hiring, and what Wijckly, 77. Elf'ect of paynu'iit at so much a month, 77. (Jondi (nation of otlt-iR't!, efloet of, 77. Doniustic servant, hiring of, 77- Servant turned away witiiout notice, rights of, 77. DisnuMsal of servant for niisconduct, 77. Refusal to obey, ground of dismissal, 77. Clerk elaitning to he partner can be dismissed, 77. Ert'ect of death of partner, 77. Contract between, dissolved by death, 77. EH'ect of sickness on contract between, 78. Incompetence of servant, efl'ect of, 78. Damages, servant entitled to, when dismissed, 78. Evidence in action for wages, 78. When and how and for wluit dismissed servant may sue, 78. Court discountenances action by child against parent fof wages, 78. Actions between relatives for wages, 78. Services performed in expectation of marriage will not sustain action, 78. To justify dismissal particular facts must be shewn, 78. MEETING OF BOARD OF COUNTY JUDC4ES. When and where to be held, 277. MEMORANDUM, CLERK'S. Of n(m-api>earance of ganiishce, .SOI. Of admission of debt by garnishee, 301. When garnishee denies debt, 302. MENONIST. Form of affirmation by, when witness, 323. MINOR. Undertaking by next friend for costs in suits other than for wages, 2()()- Form of, 283. See Master and Servant. MINUTE. Plaintiff reqwiring judgment summons to enter with Clerk, 240, Form of, 292. In Procedure Book of Jiuhpnent — Against garnishee on judgment recovered, 300, Against primary debtor and garnishee, 300. In favour of garnishee, 301. Against defendant for debt, etc. , 302. Against executors and administrators, 303-305. (See Procedure Book). In interpleader, .306. Minute of judgment on special summons where several defendants, and all not served at same time, 244, 245. When all served but some defend, judgment not to be entered against any until action determined, 245. MISCONDUCT. Of Clerks and Bailiffs, 224, 260. See Clerk and Bailiff. MONEY COLLECTED. Parties to direct mode of transmission, 275. Payable at Clerk's office, 276. Not to be sent to Clerk of another Court without plaintiff's order, 27<>. MONEY HAD AND RECEIVED. Action for, 64. 3>-:.;.:.'-' ■&)••.■♦>■:•• ■ IN'DKX. 380 MONKV IJ<]NT. Wliiit necessary to prove in action for, (!4. MoNKV I'AII). Wli'it lU'cessary to prove in action foi-, M. into ( "oiirt on interpleader to be retained by Clerk until case decided, •247. In replevin, 240. In other cases, '24:\ 'Jti?, 2()S. •SVe Payment into (Jouut. Ml'SKOKA Uulea, orders, etc., to apply to, 277. NAMES OF PAItTIKS IN FULL. To be inserted in claim and particulars, 239. XFW TRIAL. Judge may grant within fourteen days, 138, LSD. Stranger cannot apply for, '.S!). When .Fudge refuses, auti .rity at an end, 139. On fM'iuiting, proceedings to be stayed, 139. Proceedings (m application for, 271. Judge may order, to be before jury, 272. Form of order for, 307. Notice of, having been ordered, 320. NEXT FRIEND OF INFANT. Suit by, 2G(). Form of undertaking by, 283. NON-APPEARANCE. G(t i')i 'ik/icc iiriifcf'ilhH/s — Clerk's memorandum of, Form of, 301. NONSUIT. Judge may enter, 103. In Division Courts, 104. In higher Courts, i()4. In actions on contracts, 104. After payment of money into Court, 104. When shouhl, be entered, 104. Right to move in case of, 104. Plaintiff may insist on taking, 105. Judge may enter, in jury cases, 21)5. Minute of judgment of, in Procedure Book, 303. NOTE OF HAND. No jurisdiction on, when given for gambling or tippling debts, 49, 205. NOTICE OF ACTION. To be given to parties acting in pursuance of Act, 230. When Bailiff entitled to, 230. What should be stated in, 230. NOTICE. Special summons at foot of warning, 242. Of admission of part by defendant, 2(58. Of part by defendant, how to be served, 268. Of sale by Bailiff, form of, 333. NOTICES. Of set-oflF deemed notice of disputing claim, 243. Forms of — Defendant's to plaintiff, or Clerk, of admission of certain items of plaintiff's claim, 322. 3<)0 INDEX. *.' '■*', I. '.I., 7 '''' ,"> Vi .■ ''■,M' 8iv-,.,.v .•>■'.• 'SO'lirKH—iCnntiaiotl.) Of disiuitiiij,' wliolo or jwirt of i»lfiinti(l "s (,l;iiin, .'V22. Other groiiiiils of defence, ',V2'2. Cln-kH— Of trial l>y jury, 320. Of now trial granted, .'120. < 'onfessiiiu given, M21 (1). W'iien <li'feudant disputes claim, .Til (2). Docs not, .S2I (2). Disputes certain items,, M21 (.1). Claims set-oti; .')21 (4). Sets uj) Statute of Limitations, ,S21 (.5). TJiacliargc under Insolvent Act, 821 ((5). When defeiulant admits (Xirtain items of claim, .121 (7). Admits making bill or note, .'{21 (8). I'ivys into Court, .'121 (It). I'leads tender, .S21 (10). That plaintitr not certificated Attorney, ,']2l (11). Hill and note not stamped or stamp not cancelled, .S2I (12). Plaintill'did not give notice of action, .'{21 (l.'J). Defenils under protecting chuiso of Act, .S22 (14). OATHS, Err. IkMluisites of, 209. Ftirni.i 1(1 In- (niiiiiiilsfi'fed — To witness at trial, who mwears upo'i RiMe, 32.'). To a witness who swears with u^jlifted hand, ,'12o. Taken l)y .lew, IVl'i, Attirmation, instead of, in case of Quaker, Menoi/i.st, ot- Tunker, .S2.".. To an interpreter, li2o. To a witness sworn on the Voire Dire, 325. To jury called l)y parties, 32."). To jury called hy tlie -Judge, 32'). To a defendant who appears lipon a judgment .summons, 32i'i To the oiliccr wlui conducts a retiring juror out of Court, 325. To the officer when the jurj- retire to consider their verdict, .S2;'>. To a deponent or .afhrmant swearing to an affidavit or .affirma- tion, 32"). To witness by arbitrator oy umpire, 32G. OFFENCK8 AND PENALTIES. Forgery of seal, process, etc., 221. Resisting officers, 224. Extortion, 22,''). .SVf CoNTFjwPT OF Court, Clkrk.s and Bailiffs. OFFICERS OF COURT. Fees of, tariff of, 277, 33(5, .3.37. Scr Cr.ERK AND BaILIFK. Form of oath to, who conduct a retiring juror out of Court, ,32.1. Form of oath to, when jury retire to consider t!\eir verdict, 32rk. And sureties claim oii suit against, 240. Form of, 288. OLD PROCEEDINCS. Continued, 237. ORDERS. 'i'o bo entered by Clerk iu Procedure Book, 273, 274, INDKX. 301 oui>Ens-(('o,i/;,/»,-,/.) Im.iijih (.f, :m, :«)7. Wlii'ii .ludgt; ^ivcs loavc, or orders tiling to 1)l' rlnne, to bu mijnit«.(l in I'roLL'duri! Hook, 'JCi.'). In iuturpk'adcr proceodin^'s, '247, 24S. Forms of, jidjudicatinjL,' on inturpk'iiJcr, 30(j. Kor new triiii, form of, .S07, For judgmout iiostponud, 807. Si'i' I'liorKni HK 1?()UK, •>l!l)INAPvY SUMMONS. l"o ai)j)eivr, '241. Form of, 28f». Service of, •2r)i;, '2r)7, '208. Artidavit of service, form (tf, ,'{'2.3. OIIHIINAL SUMMONS. SiiggeHtion of devastavit on, '2,'>X Form of, 20."). OUTLAW. Cannot sue (hiring outlawry, '>4. ' t; ' u I'AFFIIS. In suit, to be kept in summons, 2.58. FAUMAMFNT. I'roceedings in, respecting Div. Court Act, 1. FAROL CONTHAUTS. What are, G3. FAPtTICULARS. Of claim to l)e made out in iletail, and delivered to Clerk, 2.39, Forms of, 287, '288, 289. On contract, 2.39. Form of, 287. Form of, on tort, 288. Of claim against otticers, 240. P'orm of, 288. In interpleader, how and when to be served by claimant on landlord. 247, 248. Form of, 289. In interpleader, if rule as to, not complied with, case to be adjourned for adjudication on merits, 248. PARTIES. Distinction as to joinder of parties in actions on contracts and tort, .")4. Who should sue on action of covenant, .'i?. Who should sue on ordinary action of contract, 57. Right of one co-plaintirt' to release action, ,57. How right of action devolves on deatli of, .57. Principal should sue on contract made by agent usually, 58, Rules as to wliose name action should ))e in, .58, Who should join as, in actions by partnerships, 08. Co-executors and co-adnunistrators to join as, 58. Renouncing executors need not be, 58. When all parties to contract need not be joined as, 58, 59. Executors rf« son tort, how to be joined as, 59, As to nonjoinder or misjoinder of parties, see Amkndments, PARTNERS. ?]xecutions against, what saleable under, 175, All must join in actions by firm, 58. \i i m i V.J<^ 392 INDEX. Mm MM ■,JfcV.'>.'i:;!.i PAYMENT. By garnishee to primary creditor, before judgment against yrimar^- debtor, invalid, 252. PAYMENT INTO COURT. riea of tender or payment of money into Court, 108. Amount to be paid to plaintiff, 1 14. The rule as to costs in such cases, 114. Defendant may pay money into Court, 115. Not confined to any particular form of action, 115. What such payment admits, 116. Defence iu denial not admitted after, IIG. Clerk to give notice of payment into Court, 116. Plaintiff to pay defend<ant's costs if no further sum required, 117. Unclaimed moneys in (.ourt to be paid over to County Crown Attorney, 232. Claims of jwrson-s under disability not to be prejudiced, 232. To be deemed sufficient notice of defendant disputing ijlaintilTa claim, 243. In replevin, 249. Under sections 87 and 90, 267. Under sections 86 and 89, 268. See Tender. PAYMENTS. Appropriation of, 69. PENALTIES. Under $40 may be sued for, in Division Court, 60. PERISHABLE PROPERTY. How disposed of, when seized under attachment, 211. Bond on seizure, or sale of perishable property, form of, 334. See ABscoNmNG Debtors. PERSONAL ACTIONS. Under .^40 may be brought in Division Court, 60. PERSONAL REPRESENTATIVES. When they may sue for injuries to personal property, 59. PERSONAL WRONC. Action for, dies with injured pei-son, 59. PLACE OF ABODE. Of parties, to be given in, claim, 239. What deemed, 86. PLENE ADMIN ISTRAVIT. Judgment on plea of, proved, general rule respecting, 254. When not proved, demand denied, general rule respecting, 254. PLURIES. When ^.o issue, 241. POSTAGE AND RE(JISTRATION. Of letters to be costs in cause, 273. POSTPONED JUDCniENT. Judge may give, 134. Form of, 307. PRACTICE. When not complied with. Judge may adjourn suit on terms, 270. In setting aside, or staying proceeding for irregularity, 272. See Process, and Pruce-ss and Procedure. KT^ INDEX. ao;; PlilMARY CREDITOR. Garnislico proceedings, affidavit to be made bv, for garnisliment of debt, -2,^1. Form of, 298. Application by,, to be ex parte, 251. Warning to be endorsed on order, 2ol. Form of, 299. When he proceeds on a judgment in another f'mirt, transcript oi judgment to be Hied with ('lerk before issuing summons, 252. See Garnishek Proceediniis. PRIMARY DEBTOR. In all cases to be served with garni.shee summons, 251. If not served. Judge may adjourn case until served, 251. .fudge may order substitutional service of summons, 252. If he <loes not appear after service, judgment l^y default maj' bt given, 252. When judgment against, in another Court, transcript of judgment to br filed with Clerk before issuing .summons, 252. Form of summons to, and garnisliee after judgment, 299. Vovm. of minute of judgment in Procedure Book, when judgment against, and garnishee, 800. See (rARNISHEE PliUC'EEDINfiS. PRINCIPAL AND AdENT. Principal to sue upon contract by agent usually, 58. Authority may be ratitieil after action, 58. When action must be by agent, 58. When by either i)rincipal cu' agent, 58. When ostensible agent can sue in his own name, and when not, 58. Agent acting without authority not liable on contract, 59. But on tort, 59. See Master and Servant. PROCEDENDO. Remedy for certiorari impror;,rly issued, 83. I'ROCEDURE BOOK. Leave of Court minuted in, no form.-d order necessary, 265. Form of, to lie used, 280. (Inrnishee prureetliiujn — Minute in, of judgment against garnishee, on judgment already recovered, 300. ^linute of judgment against primarj' debtor and against garni- shee, .SOO. Miimte of judgment in favour of garnishee, 301. Clerk's memorandum of non-ap[tearancc of garnishee, under Rev. Stat. c. 50, s. 31(;, 301. Memorandum of admis.sioii of del)t, when signed by garnishet-, under Rev. Stat. c. 50, s. 31(5, 301. Memorandum when garnishee denici. debt, under Rev. Stat. t;ap. 50, sec. 310, 301. Minutei of other jiKlijiiients in — Of judgment against defendant for debt or damages, 302. Of judgment when some defendants have been served with special summons and others have confessed, 302. Of judgment under Rev. Stilt, c. 50, s. 310, 301. Of judgment of iionsuit or dismissal for want of prosecution, 303. Of judgment on award, .303. Of judgment for defendant, 303. :'.!ji INDEX. f mmm l'It( )( '1:DIIR K book— {rontinncf/. ) Of judgment for defendant on set-off where set-ofi in part satisfied, 303. Of judgment for defendant for balance of set-off, 303. Of ordinary judgment against executor or administrator, 303. Of judgment against an executor or administrator wlio has wasted assets, 303. Of judgment against executor or administrator who has denied his representative character or pleaded a release to himself, 304. Of judgment against executor or administrator who admits his representative cliaracter and denies the demand, 304. Of judgment against an executor or administrator whei lu- admits his representative character, but denies the demand, and alleges total or partial administration of assets, and tlu; plaintiff proves liis demand, and defendant proves administra- tion, 304. Of judgment against executor or administrator who admits liis representative character and the plaintiff's demand, but alleges a total or partial administration of assets, and proves adminis- tration, 30"). When defendant does not prove administration, 305. Of judgment against executor or administrator on devastavit after judgment, 305. Of judgment to revive a judgment against -'ccutor, 305. Wiien defendant does not prove administration, 304. Of judgment, for executor to revive a judgment, 305. Of judgment in replevin, 30(5. Of adjudication on interpleader, 306. Of imposition of fine on a juror for non-attendance, 306. Of order for im])osition of line for contempt, 306. Of imposition of tine on witness, 307. Pr)stponed juilgment, under sec. 106, 307. Order for new trial, 307. PROCEEDINGS PENDTNG. To be continued, 237. PROCESS. To l)e under the seal of the Court, 241. Kirst process, the commencement of action, etc., 241. Ordinary summons, when to issue, 241. Special summons, when to issue, 241. Sumnjons in replevin, when to issue, 241. Alias or pluries, when to issue, 241. When chose in action, etc., sued on, 241. fiCave to is.sue under 64th sec, 242. Concurrent siunmonses, 242. PROCESS AND PROCEDURE. Division in irhlch .siiifs entfrcd — In what C'oui'ts suits may be catered and tried, 84. Suits may be brought and tried in Court nearest to defendant's residence, 88. Service of summons in such a case, 88. Execution, 89. When suits may be brought in other than regular Divisions, 8i). ( "lerks and Hailitt's may sue and be sued in adjoining Divisions, 89, Actions against County Judges or Stipendiary Magistrates, 90. CJerk to forward sutumonscs for service iu other Divisions, 90. INDEX. ;>.);) }' 1 J ( )( ' ESS AND PROCEDURP:— {t'o«<;« Ui'd. ) Kntry of claim, serWco, etc., 90. •SVc Claim. How process executed at a distance, 95. Duty of Bailiff in executing, and liability of sureties, 96. Clerk to prepare affidavit of service, etc., 97. < )ne of several partners may be sue<l in certain cases, 98. Bailitt' may seize property of firm on certificate of Judge, 98. Jiit/ijincii/ hif (/('/(iiilf 0)1 .•i/ifcial ttiuiimon.'i — In proceeding by special summons final judgment entered l>y Clerk when claim not disputed, 99. What actions may be sued by ajjecial summons, 99, 100. Summons and particidars, and affidavit to be filed, HM. Judge may set aside judgment, and order trial of cause, 101. Affidavit of merits not sufficient, 101. What should be set out in ailiilavit, 101. When judgment shimld be set aside, 102. Form of affidavit to be allowed in, to defend, 102. Leave to disinite, at any time before judgment, 103. IMlOHrBITlOX. Origin of writ, 42. W^rit of right, 42. Not to lie when subject suit in jurisdiction, althougli collateral matters out of, 42. No writ when inferior Court has jurisdiction over part of matter, 43. For mistake of law, 43. If in jurisdiction, 43. For matter immaterial, 43. None after judgment, when no jurisdiction appeared in proceeding.-;, 43. After appeal writ can be moved for, 43. None after judgment unless clear excess of jurisdiction, 43. Stranger may obtain, 43. When case in jurisdiction of inferior Court, none till question raised beyond jurisilietion, 43. Wlien foundation defective, at once, 43. Not granted where defendant appearing does not object, 43. Unless want of jurisdiction a])pear8, 43. Material delay bar to, 43. defendant may move for, at once, 43. Judge in Chambers may grant, 43. Right to, only taken aM'ay l)j' statute, 43. No gnnmd for granting, Judge decided against law and good conscience, 43. Certificate of Judge governs where facts disputed, on application for, 4.'?. Party applying for, must give Court materials used iu Inf. Court, 44. When applicant for, barred right of, 44. Practice, matter of, will not go for, 44. Party at whose reijuest order obtained cannot procure, 44. I'overture no ground for, 44. When title to land gives occasion for, 44. When will not go, 44. Does not lie until Judge has enquired into disputed facts, 44. Evidence, improper reception of, no gnmnd f()r, 44. Not granted, when judgment summons, debtor discharged by Insolvent Act, 44. Will lie notwithstanding consent, 44. Statute giving appeal or taking away certiorari does not prevent, 44. 396 INDEX. ''mm 'mm '.■♦J;',' V,''; 'i I'ROHTBTTION— {Con/Jnm/. ) .Statement of case for opinion of Sup. Court obtained from Judge does not waive right to, 44. After judgment for excess not appearing in proceedings, 45. Title to land, ground for, 45. Title to land, no ground for, in garnishee proceedings, 45. (iarnishee proceedings against railways not at head office, ground for, 45. Where suit in wrong division, remedy, 45. Judge amending particulars to bring claim in jurisdiction, prohibition, 45. I'arty taking l)enefit of Judge's order cannot obtain, 40. Jutlge proceeding against statute or rules of Court, 46. Krviineously finding facts, ground for, 4(5. Detendcut served with summons day before, granted, 40. Judge xssuming jurisdiction by wrong assumption point of law , grant* (1, 40. Where excess of jurisdiction in law and fact must be granted, 40. Affidavits in support of, how intituled, 40. Staying proceedings, pending application for, no authority, 40. Eestitution when not ordered on, 40. (irounds for, need not appear in writ of, 40. What necessary f )r service of order of, 40. Affidavit necessary to obtain, 47. Form of, 47. PUTTING OFF TEIAL BEFOliE HEARING, 270. QUAKER. Form of affirmation when, witness, 325. RAILWAY COMPANY. Domicile of, SO. RECAPTION. Right of, by o^vner, 62. RECORD, COURTS OF. Division Courts not to be, 4. REFERENCES. Order of, form of, 206. Appointment of uminre to be endorsed (form of), 297 (a). Appointment for meeting on reference (form of), 297 (b). Enlargement to be endorsed, 297 (c). See Arbitration and Award. rp:mote county. • Defendant not residing in adjoining County, when special summons returnable, 242. RENEWAL. Of executions, 275. Clerk entitled to fee on, ,341. Of warrants of commitment, 261. RKNT. Landlord's claim for, 247, 248. Form of, 289. See Landlord. Return when levied by Bailiff — Form of, 334. REPLEVIN. When action on, lies, 56. Bonds in, actions upon, 06, _ 2 / 7. 2. .' S . ^ / ^ . ^ 2 ^ Wf>l INDEX. 307 REPLEVIN— (Con/»H?<€ti.) Queatiou of title in, does not oust jurisdiction, 51. Jurisdiction of Division Courts in, 69. Act- Short title, 69. , WJwii goods repleviahlc. — When goods may be replevied, 70. (loods seized in execution not to be replevied by parties, 70. ftepkvin in County Courts — When goods under $200, 70. Replevin in Division Courts — In cases under $40 writ may issue from Division Court, 70. Procedure — W^hen order for writ required, 70. Without an order, 70. Affidavit to obtain writ without a i order, 70. Writ mau issue without an order — When, 71. Discretionary power of Judge, on application for, 71. Judges of County Courts (except in York) may issue orders for, 71. Defendant may apply to shew cause why writ not discharged, 71 . Contents of writ of, and how to be tested, 71. Bonds in, to be suV>ject to certain statutes, 71. Sheriff not to serve writ till he has replevied, 72. If property concealed in any house, how Sherifif to act, 72. If concealed about the person or premises, 72. When writ to be returnable, with schedule annexed, 72. What schedule to contain, 72. If Sheriff returns property eloigned, writ in withernam to be issued, 72. Copy of writ to be served, 72. Proceedings in, when defendant cannot be served, 73. If defendant, having been served, does not ajjpear, 73. Where venue to be laid, 73. Form of declaration for wrongful detention, etc. , 73. Form of declaration for wrongful taking, etc., 73. When defendant to state place certain in his avowry, 73. Provisions of Revised Statutes as to pleadings, 73. Damages on judgment by default, 73. Costs on assessment if no more than $5 damages awarded, 74. In Division Courts Bailiff acts instead of Sheriff, 74. No other action can be joined with, 74. Question of title does not oust jurisdiction in, 74. Verdict in, divisible, 74. Notice of action not necessary in, 74. Equity will not interfere in proceedings in, 74. Proof of bond in, 74. Assignment of bond in, 75. When plaintiff partially fails, liability of, on bond, 75. Set-off pleadable in action on bond in, 75. Damages recoverable in, 75. Court averse to staying proceedings on bond in, 75. Discharge of sureties on bond in, how effected, 75. Maintainable against wrongdoer with bare possession, 75. Evidence required in, 75. Certiorari does not apply to, 76. Liability of sureties on bonds in, 76, ;?os INDEX. m •.•IV '■••■■ -'St.; V- •nivWi*..^ IIKPLEVIN— (CoHYiHHrrf.) When sumraons to issue, 241. No other oauses of aotiou to he joined in cases of, 248. In ciise of distress for rent, rule respecting, 248. In case of distress damntjc feasant, rule respecting, 249, In otlier cases, 249. Payment into Court in, .and consequence, 249. BaiJiff to take hond l)efore replevying, 249. Bailiff to replevy hefore serving summons, 250. Sunimons in, how served, 250. Return of sunmions, 250. When property eloigned, 250. Forms — Affidavit to obtain .Judge's order for writ of, 286. Affidavit to obtain writ without order in first instance, 287. Claim in, 287. Summons in, 291. Warning to defendjints on, 291. Minute in Procedure Book of judgment in, .306. Execution in, against plaintiff, when return of goods .-wijudged. with (Lamages and costs, 311. Bond, .331. Form of assignment to be endorsed on, if required, 332. Writ of return to, 332. Inventory of goods seized on, 332. P.KSISTING OFFICERS. Punishment for, 224. RETURN. Of emoluments of Clerk, form of, 3.30. Oi unclaimed moneys to be made by Clerk, 257. Form of, 331. Form of, of Bailiff, 335. Under sections 74 and 75, to be made to Clerk by whom process i.s8ued, 24tj. RETURN DAY. ( )f special summons, 242. Of summons in replevin, 250. REVIVINC^ JUDGMENTS. During lives of parties not necessary for six years, 275. After six years, 275. Summons for, 275. Affidavit for, form of, 328. Against executor, summons for, 294, 295, .305. KEVlVlN(i PROCEEDINGS On special summons where judgment not entered by Clerk on default in one month, 246. REWARD. Actions for, 66. RIOT. Definition of, 38. RULES AND ORDERS. When to come in force, 237. iSALE. Notice of, by Bailiff, form of, 333. By Bailiff, under execution, 174. By Cl<!rk, of perishable goods seized under attachment, 211. INDEX. 3<»!> , '287, a»ijuilgtj<J. ued, '24{i. ifiiiilt in SI'UKDUI.E. To attach to aflidavit for leave to sue in a division adjoining niu: in wliicli dul)tor8 reside, when there are several, -84. Of (Merk's fees, XMi. Of Bailiff's fees, 337. SKAL. Each Court to have a, 3. What constitutes a, 3. Process under, to be signed by Clerk, 241. SKCURITY, Clerks and Bailiffs of Division Courts to give security, 2'2. To be approved of bj' .Judge, 23. Affidavit of execution and justitication reiiuisite, 23. Form of affidavit of justification, 23. Form of affidavit of execution, 24. Clerk or Bailiff to file with Clerk of Peace before he enters on tlutics. 'Jt. To be available to suitors, 25. Judge not resjKnisible for filing of, 25. r'ertified copy of covenant received as evidence, 27. Form of certificate, 27. If surety dies, new surety to be furnished, 27. Sections of Revised Statute as to guarantees applicable, 29. SKCURITY FOR COSTS. Wlien co-plaintiff may apply for, 57. Next friend to become, when minor sues, 260. SHDUCTION. Action for, not maintainable in Division Courts, 53. SHN'IOR COUNTY. On separation of junior from. Division Courts continue till aitoru'I \>y Sessions, 11. SF.RVTCE OF PROCESS. Personal, what deemed, 93. When necessary, 93, Original to be shewn, if required, 93. On servant, not good, 94. What deemed, on corporation, 94, May be at any hour of day or night, 95, Admission of, waives all irregularities, 95. Of papers on either party, 26(). Summons concurrent for, 242, 258. Special, 242, 258. " Interpleader, 247, 258. •' Garnishee, 251, 252, 258. " Ordinary, etc., 25(5, 257, 258. " On judgment debtor, 257, 258. " Not necessary for continuance, 258, 26(5, SET-OFF. Defendant to give notice of, 117. What it signifies, 117. Unknown at Common Law, 118. ('reature of statute, 118. Particulars of, should not mislead, 118. Only of mutual debts, 1 18. Not to apply to personal debt against executor, 118. Nor to claim, for unliquidated damages, 118. 400 INDEX. "pv-i.*;,*)'. ^f-;i,*..-'- V tr'JcT >..■•■ mm ■ ■»■■ SET-OFF-(Con<«HMef/.) Wliat applicable to, 118, 119. Debt must bo due when action brought, 119. Defendant need not avail himself of, 119. Uncertain damages on covenant for payment of rent cannot be, 119. Statutes of, not a^jplicable to replevin, 119. E(iuity attaching to overdue bill not subject of, 119. Note can be endorsed to defeat, 119. Verdict cannot be subject of, if original debt not, 120. Perscm buying of agent, right to, 120. Right of master to, against servant, 120. In partnership matters, 120. Plaintiff, assignee to, no answer to, 120. Must be specially pleaded in higher Courts, 120. Calls of stock, 120. Against Slieriff or Bailiff, 121. "Shortage " in carriage of wheat not subject of, 121, AVhore coiisider.-vtion for, fails, caimot be subject of, 121. Cannot be taken advantage of unless notice given, 121. If exceeding amount due plaintiff, 123. Notice of, to 1)0 suliioient notice of disputing plaintiff's claim, 24.S. When plaintiff proceeds under section 81, defendant to avail himself of set-off or other defence, 274. When judgment for defendant on, entitled to issue execution for balance and for excess, 2/4. Minute of judgment for defendant on, when set-off part satisfied, 303. Minute of judgment for balance of set-off, 303. Form of execution against plaintiff for balance of, 308. SETTING ASIDE PROCEEDINGS. Practice in, 272. .SETTLEMENT. Action upon, not maintainable in Division Court, 52. SHERIFF'S SALE. Purchaser at, only gets debtor's title, 61. SLANDER. Action for, not maintainable in Division Court, 53. SOLICITOR. County Court Judges cannot practice as, 17. Practising, cannot be Division Court Clerk, 21. Bills of costs, see Attornkys. SPECIAL SUMMONS. When to issue, 241, When returnable, 242. Changing notice of sittings upon, 243. What deemed notice of disputing claim, 243. Clerk to notify plaintiff when claim partly disputed, 243. Provision in case of several defendants, and all not served, 243. Provision for judgment against defendants in default, 243. Provision for judgment where some dispute, others do not, 244. Provision for judgments when defendants served at different periods, 244. Provision for judgments, some defendants in default, some defending, 245. Provision for relief of such defendants in default, 245. When confession after default, plaintiff may elect for judgment, 246, Suit not to abate if entry of judgment delayed, 246. Entry and form of judgment, 246. Execution on judgment under, 246. if-.'- i»5v..-v;. --t^-^rr:-- — ^■^--S?-~V ^ajrBr:'ia i<l rM U j U ' l i ,— INDEX. 401 be, Jji». 24.3. himself of or balance ed, 303. lis, 244, ig,245. 245, SPECIAL SUMMONS— (Co»<i««ed.) Execution on only to Bailiff of County, 246. Form of, 290. Notice and warning to defendanta on, 290. See Process. SPECIALTY CONTRACTS. What are, 63. SPIRITUOUS LIQUORS. Actions for, not maintainable in Division Court when sold on premisee, 49. What constitutes selling of, on premises, 49. ■ , , • Actions on notes of hand given for liquors so sold not mamtamable m Division Courts, 49. Even in hand of bona, fide holder, 49. Rule forbidding action to be'brought for, in Division Courts, 265. SPLITTING DEMAND. What amounts to, 80. STAKEHOLDER. When money deposited with, in horse race recoverable back, 49. STATUTES. How to be construed, 2L STATUTE OF LIMITATIONS. When statute begins to run, 158. Fraudulent concealment of defendant does not prevent action running, 158. Subsequent disability of, does not stop running of, 158. Extent of, in actions of contract and tort, 158. Foreign, barring remedy no force here, 158. When money lent by cheque, how statute runs, 158. When bill not accepted, 159. When bill payable on demand, 159. Note payable at sight, 159. How Attorney's claim affected by, 159. What sufficient acknowledgment to bar, 159, 160. Part payment prevents operation of, 159. Must be on account of debt sued for, 159. Effect of payment of interest, 159. Payments, appropriation of, 159. Not necessary that money should pass, 159. Part payment provable by oral admission of defendant, 159. Need not be pleaded in equity, 160. Continuance of process to save operation of, 266, 267. STATUTORY DEFENCE. Notice of, must be given, 121. Omission to stamp bill is, 121. Defence in action on Attorney's bill, no bill delivered, is, 122. Notice need not be given under Statute of Frauds, 122. Notice of, to be deemed notice of disputing plaintiff's claim, Defendant to give notice to plaintiff and Clerk, 267. STAYING PROCEEDINGS. Practice as to, 272. Order or judgment, etc., 272. STIPENDIARY MAGISTRATES. Actions against, where to be brought, 90. STOPPAGE IN TRANSITU. Rule as to, 69. 26 243. .Ia.V.',;'.!' ''■'■;•■,', if'' •'■ . >'■}■'■' J. ^W; ( 402 INDEX. ^^'^f STKIKING OUT DEFENDANTS. Where some succeed on trial on special summons, 246. SUBPCENA. Parties may obtain, from Clerk, 123. Need not be personally served, 123, 126. Copy of, should be left with witness, 124. Service of, must be reasonable time before trial, 124. What is reasonable time, 1 24. Duces tecum, 12,5. Service of, by whom may be made, 126. Penalty for disobeying, or refusing to be sworn, 126. Parties may obtain from Superior Courts, 127. Forma — Of, 297. To appear before arbitrator, 298. Copies and costs of, 339. SUBSTITUTIONAL SERVICE. Judge may order in garnishee proceedings, 252. SUGGESTION OF DEVASTAVIT ON ORIGINAL SUMMONS, 283. Form of, 295. Under section 63 of Division Courts Act, 240. SUITOR'S MONEY. Payable at Clerk's office, or transmitted to party himself, 275. Clerk to make return without order of unclaimed, 257. Form of return, 331. SUMMONS. To be served 10 days before return, 92. When service to be 15 and when 20 days, 93. When service to be personal or otherwise, 93. Personal service, what deemed, 93. Service of, at a distance, 95. Clerk to prepare affidavit of service of, 97. Ordinary, 241. Form of, 289. Service of, 256, 267, 258. Affidavit of, 323. I'or witness to appear before arbitrator, 298. Concurrent, 242, 258. To defendant after judgment, 292. When default made, 293. To jurors, 297. fn replevin, 241. Form of, 291. Service of, 250, 258. Not to be served until property replevied, 2fl0. How to be served on defendant, 250. Return, 250. Form of return by Bailiff, 332. Alias and pluries, when dated, 241. Agamst judgment debtor not to issue on judgment more than six years old, unless some payment made within twelve months, 275. Service of, 257, 258. In interpleader. Form of, to claimant, 291. Form of, to plaintiflF, 292, Service of, 247, 258. INDEX. 403 S3. IX years SUMMONS— (Co»«inMer/. ) Executors — By or against, to revive judgment, 275. Form of, 294. On devastavit, 2.')3. Form of summons on a devastavit, 295. Suggestion of, 25,3. Form of suggestion of devastavit on original summoxn, 295. To revive judgment against, 275. Form of, 295. Alleging assets since judgment, 256. Form of, 290. Oarnishee — Form of, to garnishee and primary debtor after judgment, 299. To primary debtor and garnishee before judgment, 300. How to be served, 251, 252, 258. Judge may order any stranger to be made party to suit and served with, 251. Judge may order substitutional service, 252. Forma of — To witness (before Court), 297. (before arbitrator), 298. See JuDOMKST Summons. SUPERSEDEAS. Bond on, to warrant of attachment, .322. SUPPLEMENTARY RULES. Made -June 1874, 277, 278. SURETIES. Liability of Clerk's and Bailiff's, 25, 26. Evidence against, what deemed, 25. Being non-resident does not avoid covenant by, 26. Money must have been received by Clerk in execution of office, 26. Of Bailiff when not liable in action for non-arresting, 27. Of Bailiff not liable for not selling when defendant insolvent, 27. If surety dies, new surety to be furnished, 27. Of Clerks and Bailiffs may discontinue suretyship, 28. Notice need not be in writing, 28. Executors of, liable on covenant, 28. Effect of discharge of one of, 28. Right of contribution between co-sureties, 28. Sections of Rev. Stat, applicable to, 29. Liability of former, 29. SURETIES AND OFFICERS. Particulars in cases of action against, form of, 288. Form of affidavit of justification to bond, etc., 326. Form of affidavit of caption, 324. TARIFF. Of officers' fees, 277, 336, 337. Forms of, 279. Witness fees, 273. Form of, 279. Jurors, form of, 279. Appraiser's fees, form of, 279. TENANT. Trade fixtures of, removable without giving cause of action, 61. •'i'i"v \J If-'' 1 .t-V Jv :v>,Vj ',1 -mm f 404 INDEX. TENDER. Plea of, and payment of money into Court, 108. Only in actions of contract, 108. What dofenco of, operates as, 108. I'lea of, ()j)eration of, 108. In Superior Courts, 108. When to be made, lOi). By and to whom to he made, 100. Before action brought, 1 10. Mode of making, 1 W. Production of money in making, 110. Requiring ohiinye, effect of, in, 111. Demand of receipt, etf'eet of re(iuiring, 111. Must be unconditional. 111. Under protest, effect of, 1 12. Entire demand, 1 1 2. Waiver of, 112. Demand of payment after, 113. Plea of, cannot be pleaded with plea denying right of action, 113. What sufficient evidence of, 11.3. What admission of, as in common counts, 113. Form of plea of, 1 13. Pleading to be deemed notice of disputing plaintiff's claim, 243. See Payment in'to Court. TESTATOR. Form of execution against executor for goods of, 310. TIME. Computafion of — Clear days, meaning of, 92, 115. Forthwith, meaning of, 15. Immediate and immediately, meaning of, 15, 34, 103. In the month of, means (Ixrinr/ that month, 34. In computing, mean time governs, 92. When mouth means calendar month, 19. Including day appointment made, 19. Time for return of process, how reckoned, 37 . Time for service of summons, how reckoned, 92, 93, 257. Must be clear days, 92. Sunday included, 92. Ceneral rule for, 114. From which rules come into force, 237. TIPPLING DEBT. When consideration of note, T'ourt no jurisdiction, 265. TITLE OF ACT, 1. TITLE. Action in which question of, to laml occurs, not maintainable in Di <ior Courts, iW. Question must be ho))o fide, 50. Mere assertion of, not sufficient, 50. Prohibition issued after judgment, where question of, involved, ui>. When tenant, when sur-i for use, etc., alleges time expired, 50. When person charged as owner, and disclaims, 50. AVhen in trespass disputed, whether tenant let whole or part of building, 50. Malafide claim of, ousts jurisdiction, 51. Special statutory jurisdiction not ousted by question of, 61, i "^ ^ l > ±» »W BWum - ■ ,ut.!ia K .g te ait t m INDEX. 405 13. Hv'iioB 1,00. part of TITLE— (Co»i!;Hi/e(/.) Comes in (lUOHtiou in action for false impriaoninent, Judge has no power to nonsuit, 51. Replevin, action for, (jueation of, does not oust jurisdiction, TjI, Nor in interpleader matter, 51. But may in actions on tort, 51. TOLL, Action respecting title to, not maintainable in Division Court, 52 Definition of, 52. Charges of railway company not included in, 52. Right to take under statute must be clear, 52. Mere claim of, not bona fide, docs not oust jurisdiction, 5i:. None for mere use of public way, 52. TORT. Definition of action on, 54. Distinction between action on and on contract, 54. Action on, may be brought on breach of contract, 55. Action against common carrier until lately deemed, 55. Tendency of Courts now different, 55. If several sued jointly in, wrong must he joint, 59. Person ratifying, liable as wrong-doer, »>(). Discharge in insolvency no bar to action on, GO. Actions for, under $40 may l>e brought in Division Court, 60. Ordinary summons to issue for, 241. Particulars in cases of action on, form of, 288. TOWNSHIP. Establishment of Court in, on petition of council, 11. TRANSCRIPT OF .JUDGMENT. Clerk of any (!ourt in whicli judgment entered to prepare for trans- mission to otiier Division Court, 180. Cannot be i.ssucd when defendant imprisoned under commitment, 180. Clerk to whom sent must enter, 181. Must be certified, signed and sealed, 181. May be obtained in County Court, where amount over .|I40, 183. What shall contain, 184. On filing, to become judgment of County Court, 184. Irregularities in, 184. Defendant may be examined on, 184. County Court Clerk's book to be accessible, 185. Same remedies may be pursued as if originally judgment of County Court, 185. For County Court, to be in prescribed form and size, 27G. Entry respecting issue of—upon issue, no further action to be had— - proceedings stayed, 27(5. No proceedings upon, where revival necessary or suit abated, 277. Book for entering under Act, to be Procedure Book, 277. Forms — From one Court to another, under sec. 161, 318. To County Court of judgment under Act of 1869, 319. On ordinary summons from one Division Court to another, 320. TRESPASS. When action on, lies, 55. Every entry on land constitutes a, 61. Entry under landlord's distress, when a, 61. What constitutes, respecting personalty, 61. TRESPASSER. When goods sold by, how owner may sue, 62. ^ mi I ii'-'t'^y \''f ■ I- ■,^., '.^ iM^\ ■ 406 IMDRX. TRESPASS ON CASE. When action on, lies, 55. TRIAL. Judge may summarily dispose of cause or nonsuit plaintiff, 108. Nonsuits in higher Courts, 104. f In acLions of contracts, 104. j In interpleader issue, 104. After payment of money into Court, 104. When should be entered, 104. Right to move in case of, 104. Reasonably disputed facts left to jury, 105. Proceedings in case defendant does not appear, 105. Judge may adjourn, 106. What good grounds for adjournment, 106. All persons empowered to act as agents or advocates at, 107. Judge may prevent anyone from acting as agent at, 107. Nev) — How application made and disposed of, 271. Form of order for, 307. Judge may order second trial before, jury, 272 (e). Party demanding jury on first trial entitled to jury on, 972 (c). Putting cff before sittings, 270, 271. In attachment, 246. By Jury. See Jury. TROVER. When action on, lies, 55. Person liable to action for, 61 . Finder of chattels can maintain, 61. Right of action for, after insolvency, vested in assignee, 62. Juagmsnt in, effect of, when satisfied, 62. Judgment in, against one tort feasor, effect, 62. l;emai>d must be proved, 62. E\ idence necessary to sustain action of, 62. Must appear that owner has been entirely deprived of use of chattels, 62. For goods stolen, and ■v:\^n may be brought, 62. Right of Bailiff, after execution, to maintain, 62. Evidence of possession sufficient against wrong-doer, 62. Damages in, Rules as to, 62. When defendant will not produce article, presumption against. 62. TUNKER. Form of affirmation by, when witness, v)2.i. UMPIRE. — See Arbitrator. UNAUTHORIZED. Books, documents and forms not to lie used, or fees forfeited, 27.'{. UNCLAIMED MONEiS. Form of, verified, 331 , UNDERTAKING. Of nert friend of infant guaranteeing costs, 266. Form of, 283. UNSETTLED ACCOUNT. Balance of, under $400, may be sued in Division Courts, 80. What deemed in jurisdiction, 80, 81. VARIANCE.— »Sec Amendment, INDEX^ 407 2(C). ;els, 62. VOIRE DIRE. Form of oath to witness examined on, 325. WAGERS. Actions for, not forbidden at Common Law, 48. iut many rendered illegal by statutes, 48. /Vhat are and what are not illegal, 49. WAGES. — Hee Master and Skrvamt and Minor. WARNING. To garnishee — On order and summons, 'i')!. Form of, 2»D. On special summons, 241, 242. WARRANT. Protection of persons acting under, 227. Demand of perusal of copy of, to be made before action, 227. Bailiff entitled to verdict on production of, 228. If Clerk and Bailiff joint defendants. Bailiff entitled to ^ diet on pro- ducing, 229. What costs plaintiff entitled to in action for things done under, 229. Defendant may pleud general issue, 229. To levy line upon witness, 317. WARRANT OF COMMITMENT. Date of entry, and duration of, 261. Renewal of, how made, wlien to bear date, 261. Officer to endorse day of arrest under, and mileage, 261. Forms of — In defaidt of appearance on judgment summons, 31G. After examination on judgment summons, 316. For contemp*; in open Court, 317. Certificate of discharge of a party from custody, 318. WARRANTY. Definition of, 66. After sale, requires new consideration, 66. None, of quality implied, from mere fact jf, sale, 66. Articles, reasonably tit, for usual purpose, 67. On sale of goods by sample, 67- Sale of goods by description, tliat saleable, 67. Not to extend to depreciation by transit, 67. Implied where buyer relies on seller's skill, 67. Existence of thing not, but condition, 67. On sale of provisions, 67. Of title implied, 67. Except on sale ''V public officer, 67. Particular form of words not necessary to create, 67. Not usually extended to patent defect, 67. But may be, 67. Principal bound by, of servant, 67. Of Horses — Sound price, not tantamount to, 67. Either general or ([ualiticd, 67. Written, not extended by implication, 68. Only a2)plies to state of horse at time of sale, 68. Horse sold for carriage, unfit, breach of, 68. By agent, 68. Effect of, on patent defects, 68. <" Breach of, may be given in evidence in action for prio* in mitiga- tion of damages, 68. I 4 '♦^■■<V!vji>: • .■?':. (ft .4 II ■1111 SI >.ii ^i;: ? 1^ 408 INDEX. WARRANTY— (Coniinuet/. ) When buyer should return horse, 68. Breach of, no answer to action on note, 68. What is unsoundness, 6S. What is vice, 68. WATER-COURSES AND LINE FENCES. Execution for damages and costs, 315. WILL. Action on bequest, etc., under, not maintainable in Division Court, 52. WITHERNAM. Writ of, in replevin, if property eloigned, 250. WITNESSES. Action maintainable by, for expenses, 66. Parties may obtain subpoenas for, from Clerk, 123. Must be subpa>naed, 123. Subpoena need not be personally served on, 123. Copy subpoena should be left with, 124. Proper fees must be tendered to, 124. Service on, must be reasonable time before trial, 124. What is reasonable time, 124. Paid by both parties, 124. What sufficient excuse for not attending, 125. Remedies against, 125. Privileged from civil arrest whilst attending trial, 125. Called to produce document need not be sworn, 125. Corroboratioii of, 125. Service of subpoena on, by whom made, 126. Penalty for, disobeying subpoena or refusing to be sworn, 126. How should, be sworn, 126. Irrelevant questions put to, answer conclusive, 127. Punishment of, for contempt of Court, 127. Parties may obtain subpoenas for, from Superior Courts, 127. Superior Court tariff for, 128. Fees to be taxed by Clerk, and scale of, 273. Summons to, form of, 297. Form of judgment, imposing fine on, 307. Form of warrant to levy on, 317. Form of oath to, who swears on Bible, 326. Form of oath to, who swears with uplifted hand, 325. Form of oath to, when Jew, 325. Form of affirmation to, when Quaker, Menonist or Tunker, 325. Form of oath to, when sworn on voire dire, 325. Form of affidavit for disbursements to, 327. What necessary to entitle parties to cause, to fees as, 327. Only sum actually paid to, allowed, 328. See Commission and Evidence. WORK AND MATERIALS. What plaintiff must prove in action for, 64. WRONG-DOERS. One or several of, may be sued, 59. No right of contribution between, 59. Person ratifying tort liable as, 60. Evidence of possession sufficient against, 62. WRONGFUL IMPRISONMENT. ,f^ Action for, 63. PRINTBB BT OOPP, CLARK * CO., OOLBORNB BTBKKT, TORONTO. \ -iiM»» ifhWiiitJifc urt, 52.